UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 8)*
DUNES HOTELS AND CASINOS INC.
(Name of Issuer)
Common Stock, $.50 par value
(Title of Class of Securities)
265440107
(CUSIP Number)
Kent N. Calfee, Esq., Calfee & Young, 611 North Street, Woodland, CA
95695, (916) 666-2185
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
September 12, 1995
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-
l(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement
[ ]. (A fee is not required only if the reporting person: (1)
has a previous statement on file reporting beneficial ownership
of more than five percent of the class of securities described in
Item l; and (2) has filed no amendment subsequent thereto
reporting beneficial ownership of five percent or less of such
class.) (See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-l(a) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in
a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
JOHN B. ANDERSON ###-##-####
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
4,367,013 (See Item 4)
9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
4,367,013 (See Item 4)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,367,013 (See Item 4)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
68.5
14 TYPE OF REPORTING PERSON*
IN
<PAGE>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
CEDAR DEVELOPMENT CO. (formerly Maxim, Inc.) 93-080-0020
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Nevada
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
4,280,756 (See Item 4)
9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
4,280,756 (See Item 4)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,280,756 (See Item 4)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
67.0
14 TYPE OF REPORTING PERSON*
HC
<PAGE>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
J.B.A. INVESTMENTS, INC. 68-004-1316
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Nevada
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
3,000,000 (See Item 4)
9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
3,000,000 (See Item 4)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,000,000 (See Item 4)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
47.0
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BABY GRAND CORP. 88-013-7221
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Nevada
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
1,280,126 (See Item 4)
9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
1,280,126 (See Item 4)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,280,126 (See Item 4)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.0
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
MURIETA INVESTORS (a partnership composed of John B. Anderson &
Erik J. Tallstrom)
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
California
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
86,887 (See Item 4)
9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
86,887 (See Item 4)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
86,887 (See Item 4)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.5
14 TYPE OF REPORTING PERSON*
PN
<PAGE>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
C.B.C. BUILDERS, INC. 68-011-5140
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
California
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
86,887 (See Item 4)
9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
86,887 (See Item 4)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
86,887 (See Item 4)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.5
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
ITEM 1. SECURITY AND ISSUER.
This statement relates to the Common Stock, $.50 par value
("Common Stock") of Dunes Hotels and Casinos Inc., a New York
corporation ("Dunes"). Dunes' principal executive offices are
located at 4045 South Spencer Street, Suite 206, Las Vegas,
Nevada 89119.
The principal executive officers of Dunes include:
President John B. Anderson
4045 South Spencer, Suite 206
Las Vegas, Nevada 89119
Vice President Brent L. Bowen
4045 South Spencer, Suite 206
Las Vegas, Nevada 89119
Secretary Edward Pasquale
4045 South Spencer, Suite 206
Las Vegas, Nevada 89119
Treasurer James H. Dale
4045 South Spencer, Suite 206
Las Vegas, Nevada 89119
ITEM 2. IDENTITY AND BACKGROUND.
A. REPORTING PARTIES
This statement is being filed by John B. Anderson
("Anderson"), Cedar Development Co., formerly Maxim Inc.
("Cedar"), J.B.A. Investments, Inc. ("J.B.A."), Baby Grand Corp.
("Baby Grand"), C.B.C. Builders, Inc. ("C.B.C."), and Murietta
Investors ("Murietta Investors").
1. JOHN B. ANDERSON
The response to this Item is incorporated by reference from
these reporting parties' Schedule 13D, dated May 23, 1984, Item
2(A)(3), page 7.
<PAGE>
2. CEDAR DEVELOPMENT CO.
Except as to the name change stated above, the response to
this Item is incorporated by reference from these reporting
parties' Schedule 13D dated May 23, 1984, Item 2(A)(l), page 6.
3. J.B.A. INVESTMENTS, INC.
The response to this Item is incorporated by reference from
these reporting parties' Schedule 13D, dated May 23, 1984, Item
2(A)(l), pages 5 and 6.
4. BABY GRAND CORP.
The response to this Item is incorporated by reference from
these reporting parties' Schedule 13D, Amendment No. 6, dated
January 31, 1992, Item 2(A)(4), pages 9 and 10; and these
reporting parties' Schedule 13D, Amendment No. 1, dated February
11, 1985, Item 2(A)(3), pages 6 and 7. The Secretary and
Treasurer of Baby Grand Corp. is presently:
a. Larry Feil
b. Business address: 160 E. Flamingo Road
Las Vegas, NV 89109
c. Principal occupation: General Manager, Maxim Hotel Casino
d. Not applicable.
e. Not applicable.
f. United States
5. C.B.C. BUILDERS, INC.
The response to this Item is incorporated by reference from
these reporting parties' Schedule 13D, Amendment No. 5, dated
February 28, 1989, Item 2(A)(5), pages 9 and 10; these reporting
parties' Schedule 13D, Amendment No. 2, dated September 19, 1986,
Item 2(A)(3) and Item 2(A)(6), pages 10 and 11; and these
reporting parties' Schedule 13D, dated May 23, 1984, Item 2
(A)(3), page 7.
<PAGE>
6. MURIETTA INVESTORS
The response to this Item is incorporated by reference from
these reporting parties' Schedule 13D, Amendment No. 3, dated
March 25, 1987, Item 2(A)(5), page 10, and these reporting
parties' Schedule 13D, Amendment No. 2, dated September 19, 1986,
Item 2(A)(5), pages 9 and 10.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Not Applicable.
ITEM 4. PURPOSE OF TRANSACTION.
On September 8, 1986 Eureka Federal Savings & Loan
Association ("Eureka") obtained a judgment (the "Nevada
Judgment") against John B. Anderson in an aggregate amount in
excess of $33,000,000 in a Nevada state court action arising out
of certain promissory notes executed by Anderson in favor of
Eureka. Effective November 30, 1989 Eureka and Anderson and
certain related entities entered into the Debtor-Creditor
Agreement (the "DCA") whereby Eureka agreed to forebear from
executing on the Nevada Judgment and Anderson agreed to make
certain payments to reduce the amount due on the Nevada Judgment.
In connection with the DCA, Anderson and certain related entities
pledged various assets, including shares of Dunes' Common Stock,
to Eureka as collateral. These reporting persons are informed
that effective July 29, 1993 Eureka, by then reformed and
reorganized as Eurekabank, assigned all its rights against
Anderson to the Federal Deposit Insurance Corporation (the
"FDIC"). The FDIC presently holds pursuant to pledge agreements
3,000,000 shares of Dunes' Common Stock beneficially owned by
these reporting persons. In addition, as described in
Eurekabank's Schedule 13D dated February 12, 1993 (the
"Eurekabank Schedule 13D"), Eurekabank claims shared beneficial
<PAGE>
ownership of an additional 1,367,643 shares owned by other
Anderson controlled entities. The Eurekabank Schedule 13D claims
total beneficial ownership of 4,367,643 shares.
The FDIC claims that Anderson had failed to pay the Nevada
Judgment and had defaulted on the DCA. It filed an action in the
United States District Court for the District of Nevada (the
"Nevada Federal Court") against Anderson, Edith Anderson, Cedar,
J.A. Inc., and J.B.A., Case No. CV-S-95-679-PMP (LRL), on July
14, 1995 (the "Nevada Federal Court Action"). Dunes is not a
party to the action.
On September 12, 1995 Anderson and the defendants named in
the Nevada Federal Court Action entered into that certain
Stipulation and Order For: Entry of Order Appointing Receiver and
For Injunctive Relief, and For Entry of Consent Judgment (the
"Stipulation"). The Stipulation includes a provision for a
consent judgment against Anderson and the named defendants (the
"Consent Judgment"). If the Consent Judgment is entered in
accordance with the Stipulation, Anderson and the named
defendants will be liable to the FDIC for a sum in excess of
$66,000,000, the assets of the Anderson and named defendants,
including the stock of Dunes, will come into the control of a
receiver, and the interests of Andersons and the named defendants
in the assets will be foreclosed. On September 12, 1995, the
Nevada Federal Court entered its Order Appointing Receiver and
Granting Injunctive Relief (the "Order"). The Order stayed
certain powers, including the power to control and manage the
assets or the power to vote any securities, granted to the
receiver, but allows the receiver to review the assets, observe
the operations, and inspect certain books and records, including
Dunes, relating to the assets of Anderson and the named
defendants. The Nevada Federal court issued and entered Findings
of Fact and Conclusions of Law in connection with the Order.
<PAGE>
Pursuant to the Stipulation and the Order, the FDIC,
Anderson and the named defendants reached various agreements with
regard to the claims of FDIC. The FDIC, Anderson and the named
defendants shall, for a period of sixty (60) days from the date
of entry of the Order, unless extended by written agreement, (the
"Negotiation Period"), attempt to negotiate and execute a written
agreement for the resolution of the FDIC claims (the "Settlement
Agreement"). If the Settlement Agreement is not reached within
the Negotiation Period, the FDIC may submit the Consent Judgment
for immediate entry. If the Settlement Agreement is reached
within the Negotiation Period, Anderson and the named defendants
shall have an additional sixty (60) days from the date of
execution of the Settlement Agreement, unless extended by
written agreement, in which to perform under the Settlement
Agreement (the "Closing Period"). If Anderson and the named
defendants do not perform the Settlement Agreement within the
Closing Period, the FDIC may submit the Consent Judgment for
immediate entry.
If Anderson and the named defendants are unable to reach the
Settlement Agreement, or are unable to perform the Settlement
Agreement, or if the Consent Judgment is entered under other
circumstances, a change in control of Dunes will result. Dunes
does not know what actions the FDIC will take with respect to
Dunes' Common Stock if the Consent Judgment is entered. The FDIC
could continue to hold the Common Stock, could turn the Common
Stock over to the receiver for purposes of further disposition,
and could exercise voting rights, which could result in a change
in the present board of directors or other corporate actions.
ITEM 5. INTERESTS IN SECURITIES OF THE ISSUER.
A. The information called for in this sub-item is hereby
incorporated by reference from each respective cover page.
<PAGE>
b. The following chart discloses the entities with whom
Anderson shares voting and dispositive power of Common Stock of
Dunes:
<TABLE>
<CAPTION>
John B. Anderson
SHARED VOTING AND DISPOSITIVE POWER
Amount of
Record Shared Common Person
OWNER STOCK HELD SHARED WITH EXPLANATION
<S> <C> <C> <C>
J.B.A. 3,000,000 FDIC Security Agreement and Pledge of
Stock dated 5/23/84 incorporated
herein by reference from these
reporting parties, Schedule 13D dated
May 23, 1984, Item 7, Exhibit D,
pages 40-46 ("EurekaBank Pledge");
Stipulation an Order for: Entry of
Order Appointing Receiver and for
Injunctive Relief, and For Entry of
Consent Judgment, dated September 12,
1995 (collectively "FDIC Stipulation
and Order") incorporated herein by
reference from Item 7, Exhibit A
hereof.
Baby 1,280,126 FDIC Security Agreement and Pledge of
Grand Stock dated May 23, 1984 incorporated
herein by reference from these
reporting entities, Schedule 13D,
Amendment No. 2, Item 7, Exhibit A,
pages 20-27, and Baby Grand Pledge
Agreement dated as of November 30,
1989, incorporated herein by
reference from these reporting
entities, Schedule 13D, Amendment
No. 4, Item 7, Exhibit A, pages 19-29
(collectively "EurekaBank Security
Agreement"); FDIC Stipulation and
Order.
M & R Investment Company, Pledge Agreement entered into as of
Inc. ("M & R Investment") March 4, 1991 (364,760 shares)
incorporated herein by reference from
these reporting entities,
Schedule 13D, Amendment No. 5,
Item 7, Exhibit B, pages 30-36; and
Pledge Agreement entered into as of
April 1, 1990 (915,366 shares),
Extension of Pledge Agreement entered
into November 30, 1991, and Second
Extension of Pledge Agreement entered
into March 4, 1991 incorporated
herein by reference from these
reporting entities, Schedule 13D,
Amendment No. 5, Item 7, Exhibit C,
<PAGE>
pages 37-47 ("M & R Investment Pledge
Agreement")
C.B.C. 86,887 FDIC Pursuant to a settlement agreement
dated in September 1996 and
reconfirmed as of November 30, 1989,
EurekaBank may hold a general lien
over all assets of Mr. Anderson,
which may include entities controlled
by Mr. Anderson, including C.B.C.;
FDIC Stipulation and Order.
4,367,013
</TABLE>
The following chart discloses the entities with whom Cedar
shares voting and disposition power of Common Stock of Dunes:
<TABLE>
<CAPTION>
Cedar Development Co.
SHARED VOTING AND DISPOSITIVE POWER
Amount of
Record Shared Common Person
OWNER STOCK HELD SHARED WITH EXPLANATION
<S> <C> <C> <C>
J.B.A. 3,000,000 FDIC EurekaBank Pledge; FDIC Stipulation
and Order
Baby 1,280,126 FDIC EurekaBank Security Agreement; FDIC
Grand Stipulation and Order
M & R Investment M & R Investment Pledge Agreement
4,280,126
</TABLE>
(The shares held by Cedar and J.B.A. and Baby Grand with shared
voting and dispositive power are the same shares discussed above
under "John B. Anderson.")
Other than as previously provided, these reporting persons
do not have available to them information required to respond to
Item 2 with respect to FDIC as required by Item 5(b).
For information with respect to Cedar, see Item 2(A)(2) and
Item 4.
<PAGE>
For information with respect to J.B.A., see Item 2(A)(3) and
Item 4.
For information with respect to Baby Grand, see Item 2(A)(4)
and Item 4.
For information with respect to Murietta Investors, see Item
2(A)(6) and Item 4.
For information with respect to C.B.C., see Item 2(A)(5) and
Item 4.
c. The information called for in this sub-item is included in
Item 4 and is hereby incorporated by reference. These reporting persons
effected no other transactions in the last sixty (60) days.
d. Except as described above, only these reporting persons have
the right to receive or the power to direct the receipt of the dividends from
or the proceeds from the sale of the Common Stock reported as beneficially
owned hereunder.
e. In the event that the Consent Judgment to which reference is
made in Item 4 hereof is entered, these reporting persons will cease to be
beneficial owners of the Company's Common Stock.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SECURITIES OF THE ISSUER.
Except as provided in Item 4 and as provided below, the
response to this Item is hereby incorporated by reference from
these reporting parties' Schedule 13D, Amendment No. 2, dated
September 19, 1986, Item 6, pages 15 and 16 and these reporting
parties' Schedule 13D, Amendment No. 3, dated November 20, 1986,
pages 14 and 15.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
The response to this Item is incorporated by reference from
these reporting parties' Schedule 13D dated May 23, 1984, page
29.
In addition, the following exhibit is provided:
<PAGE>
EXHIBIT DESCRIPTION
99.01 Stipulation and Order For: Entry of Order Appointing
Receiver and For Injunctive Relief, and For Entry of
Consent Judgment, entered September 12, 1995
99.02 Order Appointing Receiver and Granting Injunctive Relief,
entered September 12, 1995
99.03 Findings of Facts and Conclusions of Law, entered
September 12, 1995
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Dated this 26th day of September, 1995.
J.B.A. INVESTMENTS, INC.
By: /s/ John B. Anderson
John B. Anderson
Its: President
Date: September 26, 1995
CEDAR DEVELOPMENT CO.
(formerly MAXIM, INC.)
By: /s/ John B. Anderson
John B. Anderson
Its: President
Date: September 26, 1995
BABY GRAND CORP.
By: /s/ John B. Anderson
John B. Anderson
Its: President
Date: September 26, 1995
/s/ John B. Anderson
John B. Anderson
Date: September 26, 1995
<PAGE>
C.B.C. BUILDERS, INC.
By: /s/ John B. Anderson
John B. Anderson
Its: President
Date: September 26, 1995
MURIETTA INVESTORS
By: /s/ John B. Anderson
John B. Anderson
Its: General Partner
Date: September 26, 1995
<PAGE>
EXHIBIT A
AGREEMENT RE: SCHEDULE 13D FILING
Pursuant to Rule 13d-l(f) promulgated under the
Securities Exchange Act of 1934, as amended, each of the
undersigned agrees that the statement on Schedule 13D to which
this Agreement is attached as an exhibit is being filed on behalf
of each of them.
DATED this 26th day of September, 1995.
/s/ John B. Anderson
John B. Anderson
CEDAR DEVELOPMENT CO.
By: /s/ John B. Anderson
John B. Anderson
Its: President
J.B.A. INVESTMENTS, INC.
By: /s/ John B. Anderson
John B. Anderson
Its: President
BABY GRAND CORP.
By: /s/ John B. Anderson
John B. Anderson
Its: President
<PAGE>
MURIETTA INVESTORS
By: /s/ John B. Anderson
John B. Anderson
Its: General Partner
C.B.C. BUILDERS, INC.
By: /s/ John B. Anderson
John B. Anderson
Its: President
HENDERSON, NELSON, WALSH, MORGAN & MOLOF
LEE S. MOLOF, ESQ.
Nevada Bar No. 00627
164 Hubbard Way, Suite B
Reno, Nevada 89502
(702) 825-7000
McDONALD, CARANO, WILSON, McCUNE,
BERGIN, FRANKOVICH & HICKS
A.J. HICKS, ESQ.
Nevada Bar No. 001178
VALERIE COOKE SKAU, ESQ.
Nevada Bar No. 00783
241 Ridge St., 4th Floor
P.O. Box 2670
Reno, Nevada 89505
(702) 322-0635
HUGHES HUBBARD & REED
RITA M. HAEUSLER, ESQ.
MICHAEL P. BARBEE, ESQ.
350 South Grand Avenue, 36th Floor
Los Angeles, California 90071-3442
(213) 613-2800
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
FEDERAL DEPOSIT INSURANCE )
CORPORATION, a corporation ) Case No. CV-S-95-00679-PMP(LRL)
organized under the laws of the )
United States, acting in its )
corporate capacity and as )
successor and assignee of )
EUREKABANK, f/k/a EUREKA )
FEDERAL SAVINGS AND LOAN )
ASSOCIATION, )
)
Plaintiff, )
)
vs. )
)
JOHN B. ANDERSON and EDITH ) STIPULATION AND ORDER FOR:
ANDERSON, individuals and ) ENTRY OF ORDER APPOINTING
husband and wife, CEDAR ) RECEIVER AND FOR INJUNCTIVE
DEVELOPMENT CO., a Nevada ) RELIEF, AND FOR ENTRY OF
corporation; J.A., INC., a ) CONSENT JUDGMENT
Nevada corporation and J.B.A. )
INVESTMENTS, INC., a Nevada )
corporation, )
)
Defendants. )
<PAGE>
Plaintiff, the Federal Deposit Insurance Corporation, a
corporation organized under the laws of the United States,
acting in its corporate capacity and as successor and
assignee of Eurekabank, f/k/a Eureka Federal Savings & Loan
Association ("Plaintiff" or the "FDIC"), by and through its
undersigned attorneys, and Defendants, John B. Anderson and
Edith Anderson, individually and as husband and wife
("Anderson"), and Cedar Development Co., a Nevada
corporation, J.A., Inc., a Nevada corporation, and J.B.A.
Investments, Inc., a Nevada corporation ("Anderson
Parties"), by and through their undersigned attorneys,
stipulate and agree as follows:
RECITALS
A. On or about July 14, 1995, the FDIC filed its Complaint
for Specific Performance, Appointment of Receiver,
Injunctive Relief, Judicial Foreclosure and Enforcement of
Judgment ("Complaint"), commencing the above-captioned case
("Case").
B. On or about July 14, 1995, the FDIC filed its "Motion
for Appointment of Receiver and Application for Order to
Show Cause Why a Receiver Should Not be Appointed with
Memorandum of Points and Authorities and Affidavits of R.
Michael Flick and John F. Stiepel in Support Thereof"
("Receivership Motion"), with respect to the obligations of
Defendants under the "Debtor Creditor Agreement" with Eureka
Federal Savings & Loan Association (the "DCA"), that certain
judgment referred to in paragraph 11 of the Complaint (the
"Clark County Judgment") and a California Sister State
Judgment referred to in paragraph 15 of the Complaint (the
"California Sister State Judgment").
<PAGE>
C. Anderson and the Anderson Parties filed an Answer to
the Complaint on or about August 11, 1995 ("Answer") and
filed Points and Authorities in Opposition to the
Receivership Motion ("Receivership Opposition"). The FDIC
filed its Reply Points and Authorities in Support of the
Receivership Motion on August 25, 1995.
D. On or about August 9, 1995, West Coast Mortgage
Holdings, Inc. ("West Coast") filed a motion to intervene
("Intervention Motion") in the Case. The Maxim Hotel &
Casino in Las Vegas, Nevada ("Maxim") is owned and operated
by Baby Grand Corp. ("Baby Grand"). West Coast holds a deed
of trust and security interest in the Maxim. Baby Grand is
not a party to this Case. The FDIC, Defendants and Baby
Grand have filed oppositions to West Coast's Intervention
Motion. The Court has not ruled on the Intervention Motion.
E. The FDIC, Anderson and the Anderson Parties desire to
resolve the Case, the Receivership Motion and the
Receivership Opposition, and in furtherance thereof
stipulate to the entry of this Stipulation and Order for:
Entry of Order Appointing Receiver and for Injunctive
Relief, and for Entry of Consent Judgment ("Stipulation And
Order"), and agree as follows:
STIPULATION
1. Anderson and the Anderson Parties hereby admit and
acknowledge the validity and immediate enforceability of the
DCA, the Clark County Judgment, and the California Sister
State Judgment. The parties have agreed to submit to the
Court the Findings, as defined in Paragraph 4 hereof.
Anderson and the Anderson Parties hereby admit the veracity
<PAGE>
of all of the statements and conclusions contained in the
Findings, and the veracity of such allegations, averments
and statements in the Complaint only as are consistent with
the Findings. Anderson and the Anderson Parties hereby waive
all defenses raised in the Answer and the Receivership
Opposition, and any and all defenses which could have been
raised.
2. An Order Appointing Receiver and Granting Injunctive
Relief, in the form attached hereto as Exhibit "A", (the
"Receivership Order") shall be entered contemporaneously
herewith, appointing Ronald L. Durkin as receiver
("Receiver") with all of the powers and authority set forth
in the Receivership Order (the "Receiver Powers"). The
Receiver Powers shall not include authority to perform any
act that would violate any applicable law or regulation,
including applicable gaming laws, regulations, and license
conditions.
3. The Receiver Powers shall include all powers and rights
granted the FDIC in paragraph 6.18 of the DCA. These
specific powers shall be referred to collectively as the
"Investigatory Authority".
4. Findings of Fact And Conclusions of Law ("Findings"),
in the form attached hereto as Exhibit "B", shall be entered
by the Court contemporaneously herewith; and Anderson and
the Anderson Parties hereby admit, and agree that such
Findings shall be preclusive in any subsequent litigation or
legal proceeding with the FDIC, in any forum, including the
United States Bankruptcy Court, and Anderson and the
Anderson Parties agree that they shall be collaterally
estopped from asserting any legal or factual position
otherwise. Anderson and the Anderson Parties hereby
<PAGE>
acknowledge and agree, that the Debt owing under the DCA is
$66,192,854.37 as of August 31, 1995, with interest and
costs of collection continuing to accrue.
5. A consent judgment, in the form attached hereto as
Exhibit "C" ("Judgment"), may be submitted by the FDIC to
the Court for entry, in accordance with paragraph 8 of this
Stipulation And Order. FDIC, Anderson and the Anderson
Parties agree that the Judgment may be amended or modified
before submission, but only by written agreement of the
FDIC, Anderson and the Anderson Parties.
6. Anderson shall immediately deliver or cause to be
delivered to the FDIC possession of the stock certificates
in J.B.A. Investments, Inc.; and Anderson hereby represents
and warrants that such stock certificates represent all of
the issued and outstanding capital stock of J.B.A.
Investments, Inc.
7. Anderson and the Anderson Parties agree that they shall
not object to, interfere with, obstruct or impede, in any
way, the matters currently pending before the State Gaming
Control Board and the Nevada Gaming Commission regarding the
applications of Ronald L. Durkin and Larry Bertsch. It is
understood and acknowledged that the Receiver shall comply
with all applicable laws and regulations, including Nevada
gaming laws, regulations and license conditions.
8. Anderson, the Anderson Parties and the FDIC shall, for
a period of sixty (60) days from the date of the entry of
the Receivership Order, unless extended by written
agreement, (the "Negotiation Period"), attempt to negotiate
and execute a written agreement for resolution of the FDIC
claims against Anderson and the Anderson Parties
<PAGE>
("Settlement Agreement"). If a Settlement Agreement is
executed by the FDIC and Anderson on or before the last day
of the Negotiation Period, Anderson and the Anderson Parties
shall have an additional sixty (60) days from the date of
execution of the Settlement Agreement, unless extended by
written agreement, in which to satisfy all of the terms,
conditions and requirements of such Settlement Agreement
(the "Closing Period"). In the event that Anderson, the
Anderson Parties and the FDIC are unable to execute a
Settlement Agreement, the FDIC may immediately, on the first
day that the Court or Court Clerk is open for judicial
business, following the last day of the Negotiation Period,
and without notice to Anderson or the Anderson Parties,
submit the Judgment to the Court for immediate entry. If a
Settlement Agreement is reached, but Anderson and the
Anderson Parties are unable to comply with all terms,
conditions and requirements of the Settlement Agreement on
or before the last day of the Closing Period, the FDIC may
immediately, on the first day that the Court or Court Clerk
is open for judicial business, following the last day of the
Closing Period, and without notice to Anderson or the
Anderson Parties, submit the Judgment to the Court for
immediate entry. Should the last day of the Negotiation
Period and/or the Closing Period fall on a Saturday, Sunday,
or legal holiday, then such period shall be extended until
the next day that the Court or Court Clerk is open for
judicial business. The Receiver shall not exercise any of
the Receiver Powers other than the Investigatory Authority
until such time as the Judgment is entered by the Court,
unless otherwise ordered by the Court. The Receiver shall,
in all instances, act within the scope of any judgment that
<PAGE>
may be entered in the Case and the Receivership Order.
9. During the Negotiation Period and, if a Settlement
Agreement is executed, during the Closing Period, the
Receiver Powers shall be limited to the exercise of the
Investigatory Authority, and the following paragraphs of the
Receivership Order shall be stayed: Paragraphs 2, 4, 6, 7,
8, 9, 11, 12, 13, 16, and 18. The Receiver is authorized to
communicate to the FDIC any and all information obtained in
the exercise of the Investigatory Authority. Nothing in this
Stipulation And Order shall preclude the FDIC and/or the
Receiver from requesting, by motion to the Court, a
termination of the foregoing stay provisions at anytime
before the Judgment is entered; the Court may terminate such
stay if it determines that Anderson or the Anderson Parties,
or any person or representative associated therewith, (a)
has committed fraud with respect to or misappropriated any
interests in the UCC-1 AND REAL ESTATE ASSETS or the
CERTIFICATED SECURITY ASSETS, or (b) has violated any
portion of the Injunction contained within the Receivership
Order.
10. Anderson and the Anderson Parties hereby expressly
acknowledge that by entering into this Stipulation And
Order, the FDIC is not agreeing to compromise its claims
against Anderson and the Anderson Parties.
11. If all terms, conditions and requirements of the
Settlement Agreement are met by Anderson and the Anderson
Parties on or before the last day of the Closing Period, the
FDIC shall immediately dismiss the Complaint, the Court
shall discharge the Receiver, and the parties shall
otherwise perform all of the terms, conditions and
<PAGE>
requirements of the Settlement Agreement.
12. Anderson and the Anderson Parties each hereby agree,
that in the event that each or any of them seek relief under
Title 11 of the United States Code, that they shall not
contest, object to, or otherwise oppose, on any grounds, any
motions filed by the FDIC in any bankruptcy cases, filed by
Anderson and/or any or all of the Anderson Parties,
requesting relief from the automatic stay of 11 U.S.C.
section 362(a).
DATED this 12th day of September, 1995.
/s/ /s/
LEE S. MOLOF, ESQ. THOMAS F. KUMMER, ESQ.
HENDERSON, NELSON, WALSH, ANTHONY A. ZMAILA, ESQ.
MORGAN & MOLOF KUMMER KAEMPFER BONNER &
RENSHAW
Attorneys for Defendants
McDONALD, CARANO, WILSON,
McCUNE, BERGIN, FRANKOVICH &
HICKS
A.J. HICKS, ESQ.
VALERIE COOKE SKAU, ESQ.
HUGHES HUBBARD & REED
RITA M. HAEUSLER, ESQ.
MICHAEL P. BARBEE, ESQ.
Attorneys for Plaintiff
ORDER
IT IS SO ORDERED.
DATED this 12th day of September, 1995.
/s/
United States District Judge
<PAGE>
HENDERSON, NELSON, WALSH, MORGAN & MOLOF
LEE S. MOLOF, ESQ.
Nevada Bar No. 00627
164 Hubbard Way, Suite B
Reno, Nevada 89502
(702) 825-7000
McDONALD, CARANO, WILSON, McCUNE,
BERGIN, FRANKOVICH & HICKS
A.J. HICKS, ESQ.
Nevada Bar No. 001178
VALERIE COOKE SKAU, ESQ.
Nevada Bar No. 00783
241 Ridge St., 4th Floor
P.O. Box 2670
Reno, Nevada 89505
(702) 322-0635
HUGHES HUBBARD & REED
RITA M. HAEUSLER, ESQ.
MICHAEL P. BARBEE, ESQ.
350 South Grand Avenue, 36th Floor
Los Angeles, California 90071-3442
(213) 613-2800
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
FEDERAL DEPOSIT INSURANCE )
CORPORATION, a corporation ) Case No. CV-S-95-00679-PMP(LRL)
organized under the laws of the )
United States, acting in its )
corporate capacity and as )
successor and assignee of )
EUREKABANK, f/k/a EUREKA )
FEDERAL SAVINGS AND LOAN )
ASSOCIATION, )
)
Plaintiff, )
)
vs. )
)
JOHN B. ANDERSON and EDITH ) CONSENT JUDGMENT
ANDERSON, individuals and )
husband and wife, CEDAR )
DEVELOPMENT CO., a Nevada )
corporation; J.A., INC., a )
Nevada corporation, and J.B.A. )
INVESTMENTS, INC., a Nevada )
corporation, )
)
Defendants. )
<PAGE>
Pursuant to the Stipulation And Order: For Entry of Order
Appointing Receiver For Injunctive Relief and For Entry of
Consent Judgment ("Stipulation And Order") entered in this
action, and based upon the Findings of Act and Conclusions of Law
("Findings"), and Order Appointing Receiver and Granting
Injunctive Relief ("Receivership Order") entered in this action
the Court hereby directs entry of this Consent Judgment, and
ORDERS, ADJUDGES AND DECREES that:
1. Defendants John B. and Edith Anderson ("Anderson"), and
Cedar Development Co. ("Cedar Development"), J.A., Inc., and
J.B.A. Investments, Inc. (the "Anderson Parties") are jointly and
severally liable to Plaintiff Federal Deposit Insurance
Corporation as Manager of the FSLIC Resolution Fund, as successor-
in-interest to Federal Savings and Loan Insurance Corporation and
as successor and assignee of Eurekabank, formerly known as Eureka
Federal Savings and Loan Association ("FDIC") on FDIC's First
Cause of Action for Specific Performance, Second Cause of Action
for Appointment of a Receiver, Third Cause of Action for
Injunctive Relief and Fourth Cause of Action for Judicial
Foreclosure. Anderson (husband and wife) are jointly and
severally liable to FDIC on its Fifth Cause of Action for
Enforcement of Judgment.
2. Anderson and the Anderson Parties, and each of them, are
hereby permanently enjoined from engaging in any of the acts
enjoined in the Receivership Order. This permanent injunction is
binding upon Anderson and the Anderson Parties, and each of them,
and upon their officers, agents, servants, employees, and
<PAGE>
attorneys and upon those persons in active concert or
participation with them who receive actual notice of this
injunction by personal service or otherwise.
3. Ronald L. Durkin, C.P.A. of Nielsen, Elggren, Durkin & Co.,
is hereby appointed the permanent receiver ("Receiver") over the
assets of Anderson and the Anderson Parties to the extent and
with the powers set forth in the Receivership Order.
4. Anderson, the Anderson Parties and anyone claiming through
them (other than any creditors senior in priority to the FDIC)
are hereby directed to deliver possession of the Collateral
described in the Debtor Credit Agreement ("DCA") and Security
Documents described in and attached to the Complaint, and the
rents, issues and profits from such Collateral to the Receiver
for the benefit of FDIC. Anderson is hereby further directed to
deliver any and all other assets which Anderson (husband and
wife) own, legally or equitably, or have a beneficial interest
in, to the Receiver.
5. Anderson and the Anderson Parties are liable to FDIC, as of
August 31, 1995, in the sum of $66,192,854.37, together with
interest thereon at the annual rate of 15.00% as provided in the
DCA and Security Documents to the date of entry of this Judgment,
plus costs of collection, including reasonable attorney's fees,
calculated as provided in the DCA and Security Documents,
together with interest thereon as provided in the DCA and
Security Documents to the date of entry of this Judgment. FDIC is
also granted post judgment interest as allowed by law.
6. Anderson (husband and wife) are liable to FDIC on the Fifth
Cause of Action in the sum of $54,563,926.52 as of September 9,
<PAGE>
1995, together with interest thereon as allowed by law to the
date of entry of this Judgment. FDIC is also granted post-
judgment interest as allowed by law. FDIC, through the Receiver
or separately, may use this Court's process to execute on or
otherwise enforce its judgment on the Fifth Cause of Action. The
FDIC shall not be entitled to recover more than the amount stated
in Paragraph 5 above.
7. The rights, claims, ownership, liens, titles and demands of
Anderson and the Anderson Parties and all persons claiming
through them (other than creditors senior in priority to the
FDIC) subsequent to the execution of the DCA and the Security
Documents are subject, subsequent and subordinate to FDIC's
rights to the collateral described in the Security Documents.
8. The collateral described in the Security Documents
shall be judicially foreclosed and shall be sold according to law
by the Receiver. Such foreclosure shall be subject to
consummation of the sale and expiration of the redemption period.
The proceeds of such sale or sales shall be applied first to
payment of senior lienholders, if any, and then to the General
Debt, less costs and expenses of operation and collection,
including reasonable attorneys' fees as provided for by the DCA.
9. Anderson and the Anderson Parties and all persons claiming
through them subsequent to the execution of the DCA and Security
Documents (other than creditors senior in priority to the FDIC),
as lien claimants, judgment creditors, claimants under a junior
deed of trust or security agreement, purchasers, encumbrancers,
or otherwise, are barred and foreclosed from all rights, claims,
<PAGE>
interests, or equity of redemption in the foreclosed collateral
when time for redemption has elapsed.
10. FDIC or any other party to this action may become a
purchaser at any and all foreclosure sales.
11. When the time for redemption has elapsed, the Receiver shall
execute a deed or other certificate of ownership to the purchaser
of the collateral at any such sale, and let the purchaser into
possession of such collateral at the purchaser's request upon
production of the deed or other certificate of ownership.
12. There shall be no appeal.
13. Any and all disputes arising out of this Consent
Judgment, the Stipulation And Order, the Findings and the
Receivership Order entered in this action shall be subject to the
exclusive jurisdiction of this Court and shall be resolved upon
motion to this Court. This Court retains continuing jurisdiction
of this matter for this purpose. In the event of a dispute, the
prevailing party shall be awarded its reasonable attorneys' fees
and costs.
14. This Court further retains jurisdiction to make and enter
such orders and decrees, upon application of the Receiver or
otherwise, as may be necessary for the guidance of the Receiver
in the performance of his duties and in the administration of the
receivership estate.
15. This Consent Judgment shall be binding upon and inure to the
benefit of the successors and assigns of FDIC, Anderson and the
Anderson Parties.
<PAGE>
The entry of this Consent Judgment, as well as the
Stipulation And Order, the Findings and the Receivership Order
are hereby consented to by the undersigned parties this _____ day
of September, 1995
JOHN B. ANDERSON, EDITH ANDERSON,
individually individually
CEDAR DEVELOPMENT CO. J.A., Inc.
By: By:
John B. Anderson John B. Anderson
Its Its
J.B.A. INVESTMENTS, INC.
By:
John B. Anderson
Its
DATED this _____ day of September, 1995.
United States District Judge
Submitted by:
/s/
LEE S. MOLOF, ESQ.
HENDERSON, NELSON, WALSH,
MORGAN & MOLOF
McDONALD, CARANO, WILSON,
McCUNE, BERGIN, FRANKOVICH &
HICKS
A.J. HICKS, ESQ.
VALERIE COOKE SKAU, ESQ.
HUGHES HUBBARD & REED
RITA M. HAEUSLER, ESQ.
MICHAEL P. BARBEE, ESQ.
Attorneys for FDIC
<PAGE>
APPROVED AS TO FORM AND CONTENT:
/s/
THOMAS F. KUMMER, ESQ.
KUMMER KAEMPFER BONNER & RENSHAW
Attorneys for Defendants
HENDERSON, NELSON, WALSH, MORGAN & MOLOF
LEE S. MOLOF, ESQ.
Nevada Bar No. 00627
164 Hubbard Way, Suite B
Reno, Nevada 89502
(702) 825-7000
McDONALD, CARANO, WILSON, McCUNE,
BERGIN, FRANKOVICH & HICKS
A.J. HICKS, ESQ.
Nevada Bar No. 001178
VALERIE COOKE SKAU, ESQ.
Nevada Bar No. 00783
241 Ridge St., 4th Floor
P.O. Box 2670
Reno, Nevada 89505
(702) 322-0635
HUGHES HUBBARD & REED
RITA M. HAEUSLER, ESQ.
MICHAEL P. BARBEE, ESQ.
350 South Grand Avenue, 36th Floor
Los Angeles, California 90071-3442
(213) 613-2800
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
FEDERAL DEPOSIT INSURANCE )
CORPORATION, a corporation ) Case No. CV-S-95-00679-PMP(LRL)
organized under the laws of the )
United States, acting in its )
corporate capacity and as )
successor and assignee of )
EUREKABANK, f/k/a EUREKA )
FEDERAL SAVINGS AND LOAN )
ASSOCIATION, )
)
Plaintiff, )
)
vs. )
)
JOHN B. ANDERSON and EDITH ) ORDER APPOINTING RECEIVER AND
ANDERSON, individuals and ) GRANTING INJUNCTIVE RELIEF
husband and wife, CEDAR )
DEVELOPMENT CO., a Nevada )
corporation; J.A., INC., a )
Nevada corporation and J.B.A. )
INVESTMENTS, INC., a Nevada )
corporation, )
)
Defendants. )
<PAGE>
The Court, having considered the complaint (the "Complaint")
filed in this action, the Motion for Appointment of a Receiver,
the Memorandum of Points and Authorities, and Declarations of R.
Michael Flick and John F. Stiepel in Support thereof filed by
plaintiff Federal Deposit Insurance Corporation ("FDIC") as
Manager of the FSLIC Resolution Fund, as successor-in-interest to
Federal Savings and Loan Insurance Corporation and as successor
and assignee of EurekaBank, formerly known as Eureka Federal
Savings and Loan Association, and having considered any and all
points and authorities and declarations filed in opposition to
the Motion, and further having considered and entered
contemporaneously herewith the Stipulation And Order For: Entry
of Order Appointing Receiver and for Injunctive Relief, and for
Entry of Consent Judgment ("Stipulation And Order") entered into
by and between the FDIC, John B. Anderson and Edith Anderson,
individuals and as husband and wife ("Anderson") and Cedar
Development, Co., a Nevada corporation, J.A. Inc., a Nevada
corporation, and J.B.A. Investments, Inc., a Nevada corporation
("Anderson Parties"), and having made and entered
contemporaneously herewith Findings of Fact and Conclusions of
Law, and there being no just reason for delay, the Court directs
entry of the following Order:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that:
APPOINTMENT OF RECEIVER
1. Ronald L. Durkin, C.P.A., of Neilsen, Elggren, Durkin & Co.
is hereby appointed the receiver ("Receiver").
2. The Receiver is, subject to the terms of the Stipulation And
Order, a copy of which is attached hereto (without exhibits) as
<PAGE>
Exhibit "A", and is incorporated herein by this reference,
authorized and hereby directed to take into his immediate
custody, control and possession the following assets or their
proceeds, (collectively referred to hereinafter as the "UCC-1 AND
REAL ESTATE ASSETS"), until further order of this Court:
(a) Receivables and Related Contracts described in the Anderson
Security Agreement, a true and correct copy of which is attached
to the Complaint as Exhibit 3 and incorporated herein by this
reference, (DCA paragraph 2.05(a));
(b) Bank Accounts described in the Anderson Security Agreement;
(c) Personal Property described in the Anderson Security
Agreement;
(d) All proceeds of the collateral described in the Anderson
Security Agreement;
(e) The real property described in the Stationhouse Deed of
Trust, a true and correct copy of which is attached to the
Complaint as Exhibit 7 and incorporated herein by this reference,
(DCA paragraph 2.05(h));
(f) Personal Property described in the J.A. Security Agreement,
a true and correct copy of which is attached to the Complaint as
Exhibit 8 and incorporated herein by this reference, (DCA
paragraph 2.05(i));
(g) Inventory described in the J.A. Security Agreement;
(h) Receivables and Related Contracts described in the J.A.
Security Agreement;
<PAGE>
(i) Assigned Agreements described in the J.A. Security
Agreement;
(j) Pledged Debt described in the J.A. Security Agreement;
(k) Bank Accounts described in the J.A. Security Agreement;
(l) All proceeds of the collateral described in the J.A.
Security Agreement; and
(m) Any and all other personal property assets of the Andersons.
3. FDIC shall retain possession of the following assets or
their proceeds, (collectively referred to hereinafter as the
"CERTIFICATED SECURITY ASSETS"), until further order of this
Court:
(a) The Andersons' partnership interest in Rancho Murieta
Investors described in the Anderson Pledge Agreement, a true and
correct copy of which is attached to the Complaint as Exhibit 4
and incorporated herein by this reference (DCA paragraph
2.05(b));
(b) The stock of Pine Tree Properties, Inc. described in the
Anderson Pledge Agreement;
(c) The stock of California Dehydrating Company, Inc. described
in the Anderson Pledge Agreement;
(d) The stock of JB Dusters, Inc. described in the Anderson
Pledge Agreement;
(e) The stock of Fat City Feed Lot, Inc. described in the
Anderson Pledge Agreement;
<PAGE>
(f) The stock of Cedar Development described in the Anderson
Pledge Agreement;
(g) The stock of Baby Grand described in the Cedar Development
Pledge Agreement, a true and correct copy of which is attached to
the Complaint as Exhibit 5 and incorporated herein by this
reference (DCA paragraph 2.05(f));
(h) The stock of J.B.A. Investments described in the Cedar
Development Pledge Agreement;
(i) The stock of J.A., Inc. described in the Cedar Development
Pledge Agreement;
(j) All after-acquired shares of and distributions in respect of
the Baby Grand stock, J.B.A. Investments stock, and J.A., Inc.
stock described in the Cedar Development Pledge Agreement;
(k) The 3,400,000 shares of Dunes stock described in the J.B.A.
Pledge Agreement, a true and correct copy of which is attached to
the Complaint as Exhibit 6 and incorporated herein by this
reference (DCA paragraph 2.05(g));
(l) All after-acquired shares of and distributions in respect of
the Dunes stock described in the J.B.A. Pledge Agreement.
4. The receiver is authorized and hereby directed to collect
the rents, issues and profits from the UCC-1 AND REAL ESTATE
ASSETS.
5. The Receiver may inspect, copy and take into his possession
whatever books, records, other "writings" or "recordings" as
defined in Fed. R. Evid. 1001, other than the stock certificates
or partnership interest documents themselves, which evidence,
<PAGE>
relate or refer to the UCC-1 AND REAL ESTATE ASSETS or the
CERTIFICATED SECURITY ASSETS which will aid him in the exercise
of his duties as receiver ("ENJOINED RECORDS"). The ENJOINED
RECORDS shall not include any written materials which would fall
within the scope of the attorney work-product privilege or the
attorney-client privilege.
6. The Receiver shall assume all of the rights of management
and control, other than as set forth in Paragraph 3, incident to
the ownership of any stock, partnership or other business or
property interest included among the UCC-1 AND REAL ESTATE ASSETS
and the CERTIFICATED SECURITY ASSETS, including, but not limited
to,
(a) the right to vote such stock, partnership or other interest
for all purposes without the transfer thereof into his own name;
and
(b) where the stock, partnership or other business or property
interest includes a controlling interest in a corporation,
partnership or other business or property, the right to manage
and control such corporation, including any subsidiaries or
affiliates, partnership or other business or property, including
the right to remove or replace any or all directors, officers,
agents or employees of such corporation, including any
subsidiaries or affiliates, partnership or other business,
consistent with otherwise applicable state law, including, but
not limited to, Nevada gaming laws, regulations and any license
conditions.
<PAGE>
7. The Receiver shall sell the UCC-1 AND REAL ESTATE ASSETS and
the CERTIFICATED SECURITY ASSETS pursuant to the power of sale
contained in the Security Documents.
8. The Receiver shall have the right and duty to apply the
proceeds from the rents, issues and profits and sale of the UCC-1
AND REAL ESTATE ASSETS and the CERTIFICATED SECURITY ASSETS to
the Receiver's and FDIC's costs and expenses of collection,
including reasonable attorneys' fees, as permitted and required
by the DCA and Security Documents, to prior liens, to the accrued
interest and then to the principal amount of the debt owed to
FDIC.
9. The Receiver shall enforce the Judgment and California
Sister-State Judgment described in the Complaint by using the
Court's process and the process of United States District Courts
in other judicial districts to execute and levy on the Andersons'
assets and shall apply the proceeds of such execution and levies
to the expenses of collection, to prior liens, to the accrued
interest and then to the principal amount of the debt owed to
FDIC.
10. The Receiver shall forthwith file this Order with the Clerks
of the United States District Court of the judicial districts in
which any property or asset owned by the Andersons is or may be
located.
11. The Receiver is authorized to divert, take possession of,
and screen the mail of Cedar Development, J.A., Inc., and J.B.A.
Investments, Inc. and any of their subsidiaries or affiliates.
The Receiver is further authorized to effect a change in the
rights to use any and all post office boxes used by Cedar
<PAGE>
Development, J.A., Inc., and J.B.A. Investments, Inc. and any of
their subsidiaries or affiliates.
12. The Receiver shall file with this Court periodic reports of
the progress of the liquidation of the collateral granted by the
Defendants and the enforcement of the Judgment and California
sister-state judgment.
13. The Receiver may institute, prosecute, compromise, adjust,
intervene in, resist, defend or become a party to all suits,
actions, and proceedings at law or in equity, as may in the
Receiver's opinion be advisable or necessary to preserve the
value of the Defendants' assets for FDIC.
14. The Receiver may employ counsel to assist the Receiver in
the performance of his duties.
15. The Receiver may engage and employ accountants,
investigators and other experts and such other persons including
clerical personnel to perform such tasks as may be necessary to
aid the Receiver in the performance of his duties.
16. The Receiver shall have all other powers, rights and
authority customarily exercised by equity receivers, except as
noted hereinabove.
17. The Receiver and any attorney, accountant and any other
persons employed by the Receiver as herein authorized shall be
periodically paid such fees and expenses on application to the
Court, with notice to all parties hereto, as are approved and
ordered by the Court. Such fees shall be paid from the assets and
income of the receivership estate. FDIC shall have no liability
for the payment at any time of any such fees or expenses.
<PAGE>
18. The Receiver shall be entitled to enforce this Order and
each of its provisions as a third party beneficiary, and shall
have the rights of a judgment creditor, except as noted
hereinabove.
19. This Court retains jurisdiction to make and enter such
further orders and decrees as are deemed necessary and
appropriate.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that:
INJUNCTION
I. Defendants and their directors, officers, direct and
indirect subsidiaries, affiliates, agents, servants, employees,
representatives, successors, assigns, attorneys, and persons in
active concert or participation with them, who or which receive
actual notice of this order by personal service or otherwise (the
"ENJOINED ANDERSON PARTIES"), and each of them, be, and hereby
is, prohibited from directly or indirectly:
A. Wasting, dissipating, withdrawing, transferring, removing,
concealing or disposing of any or all of the UCC-1 AND REAL
ESTATE ASSETS and the CERTIFICATED SECURITY ASSETS;
B. Destroying, altering, transferring, disposing of, mutilating
or concealing, in any manner, any books, records, other
"writings" or "recordings" as defined in Fed. R. Evid. 1001 which
evidence, relate or refer to any of the UCC-1 AND REAL ESTATE
ASSETS and the CERTIFICATED SECURITY ASSETS, until further order
of this Court; and
C. Interfering with the possession of or management by the
Receiver of the property and assets owned, controlled or in the
possession of any of the Defendants, the Receiver, or the
<PAGE>
receivership estate, or interfering with the Receiver, or with
the jurisdiction of this Court over any of the Defendants, the
Receiver, and the assets of the receivership estate.
II. Any and all individuals, partnerships, firms, corporations
and other persons, who or which receive actual notice of this
order by personal service or otherwise and who or which hold or
are a depository of any ENJOINED ASSETS or who or which have
possession, custody or control of any ENJOINED RECORDS (the
"ENJOINED THIRD PARTIES"), be, and until further order of this
Court, each of them hereby is, prohibited from destroying,
altering, transferring, disposing of, mutilating or concealing
such ENJOINED RECORDS, except that ENJOINED THIRD PARTIES are
authorized and hereby directed to transfer any and all ENJOINED
ASSETS to the custody, control and possession of the Receiver
appointed herein.
III. Representatives of the FDIC and the Receiver appointed
herein by, and they hereby are, allowed immediately to inspect
and copy any and all ENJOINED RECORDS whether in the possession,
custody and control of ENJOINED ANDERSON PARTIES or ENJOINED
THIRD PARTIES, and such authority shall include the powers
granted the FDIC in paragraph 6.18 of the DCA. The Receiver is
authorized to communicate to the FDIC any and all information
obtained in the exercise of such authority. Nothing contained
herein shall preclude the FDIC and/or the Receiver from, upon
motion to the Court, requesting a termination of the stay
provisions contained in paragraphs 8 and 9 of the Stipulation And
Order, if the Court determines that Anderson or the Anderson
Parties, or any person or representative associated therewith (a)
has committed fraud with respect to or misappropriated any
<PAGE>
interests in the UCC-1 and REAL ESTATE ASSETS or the CERTIFICATED
SECURITY ASSETS, or (b) has violated any portion of the
Injunction contained herein. Nothing contained herein shall
preclude Anderson or the Anderson Parties from seeking emergency
or other relief.
IV. Nothing in this Order limits the Enjoined Anderson Parties
from operating or transacting business in the ordinary course, or
from engaging in transactions to which the FDIC has given written
consent.
IT IS SO ORDERED.
DATED this 12th day of September, 1995.
/s/ /s/
LEE S. MOLOF, ESQ. UNITED STATES DISTRICT JUDGE
HENDERSON, NELSON, WALSH,
MORGAN & MOLOF
McDONALD, CARANO, WILSON,
McCUNE, BERGIN, FRANKOVICH &
HICKS
A.J. HICKS, ESQ.
VALERIE COOKE SKAU, ESQ.
HUGHES HUBBARD & REED
RITA M. HAEUSLER, ESQ.
MICHAEL P. BARBEE, ESQ.
Attorneys for FDIC
APPROVED AS TO FORM AND CONTENT:
/s/
THOMAS F. KUMMER, ESQ.
KUMMER KAEMPFER BONNER & RENSHAW
Attorneys for Defendants
HENDERSON, NELSON, WALSH, MORGAN & MOLOF
LEE S. MOLOF, ESQ.
Nevada Bar No. 00627
164 Hubbard Way, Suite B
Reno, Nevada 89502
(702) 825-7000
McDONALD, CARANO, WILSON, McCUNE,
BERGIN, FRANKOVICH & HICKS
A.J. HICKS, ESQ.
Nevada Bar No. 001178
VALERIE COOKE SKAU, ESQ.
Nevada Bar No. 00783
241 Ridge St., 4th Floor
P.O. Box 2670
Reno, Nevada 89505
(702) 322-0635
HUGHES HUBBARD & REED
RITA M. HAEUSLER, ESQ.
MICHAEL P. BARBEE, ESQ.
350 South Grand Avenue, 36th Floor
Los Angeles, California 90071-3442
(213) 613-2800
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
FEDERAL DEPOSIT INSURANCE )
CORPORATION, a corporation ) Case No. CV-S-95-00679-PMP(LRL)
organized under the laws of the )
United States, acting in its )
corporate capacity and as )
successor and assignee of )
EUREKABANK, f/k/a EUREKA )
FEDERAL SAVINGS AND LOAN )
ASSOCIATION, )
)
Plaintiff, )
)
vs. )
)
JOHN B. ANDERSON and EDITH ) FINDINGS OF FACT AND
ANDERSON, individuals and ) CONCLUSIONS OF LAW
husband and wife, CEDAR )
DEVELOPMENT CO., a Nevada )
corporation; J.A., INC., a )
Nevada corporation and J.B.A. )
INVESTMENTS, INC., a Nevada )
corporation, )
)
Defendants. )
<PAGE>
The Court, having considered the Complaint For Specific
Performance, Appointment of a Receiver, Injunctive Relief,
Judicial Foreclosure; and Enforcement of Judgment; the Answer
thereto; the Motion For Appointment of Receiver and Application
for Order to Show Cause Why a Receiver Should Not be Appointed;
Defendants' Opposition thereto; and Plaintiff's Reply; and the
Stipulation and Order For: Entry of Order Appointing Receiver and
For Injunctive Relief, and For Entry of Consent Judgment; and
being fully advised in the premises; the Court enters the
following Findings of Fact and Conclusions of Law, ("Findings")
(Defined Terms, not specifically defined in these Findings, shall
have the meanings provided in the Debtor-Creditor Agreement
referred to in Finding number 8 herein and attached as Exhibit
"1" to the Complaint.)
FINDINGS OF FACT
1. Defendants John B. Anderson and Edith Anderson ("Andersons")
are individuals, husband and wife and residents of Yolo County,
California.
2. Defendant J.B.A. Investments, Inc. ("J.B.A. Investments") is
a Nevada corporation which holds stock of the publicly-traded
corporation Dunes Hotels and Casinos Inc. ("Dunes").
3. Defendant J.A., Inc., is a Nevada corporation which owns the
Stationhouse Hotel and Casino ("Stationhouse") at 110 Erie Main,
Tonopah, Nye County, Nevada.
4. Defendant Cedar Development Co. ("Cedar Development") is a
Nevada corporation which serves as a holding company for stock of
<PAGE>
Baby Grand Corp. ("Baby Grand"), dba Maxim Hotel and Casino
("Maxim"), J.B.A. Investments and J.A., Inc.
5. On September 8, 1986, Eureka Federal Savings & Loan
Association ("Eureka") obtained a Judgment against the Andersons
in the State District Court in and for Clark County, Nevada in
Case No. A245662 (the "Clark County Judgment"). In the Clark
County Judgment, the Court determined that the Andersons were
liable to Eureka for breach of certain promissory notes, accrued
and unpaid interest, and costs (including attorneys' fees) in an
aggregate amount of $33,685,798.02, and that the Clark County
Judgment would bear interest in the aggregate amount of
$10,756.50 per day from September 8, 1986 until paid.
6. On or about May 27, 1988, Eureka and the Federal Savings and
Loan Insurance Corporation ("FSLIC") entered into an assistance
agreement pursuant to which, among other things, Eureka undertook
to collect the Clark County Judgment for the benefit of FSLIC and
granted FSLIC the right to purchase Eureka's interest in the
Clark County Judgment.
7. On August 9, 1989, Congress enacted the Financial
Institutions Reform, Recovery and Enforcement Act of 1989
("FIRREA") which abolished FSLIC and assigned FSLIC's assets and
rights to the FSLIC Resolution Fund managed by FDIC, including
FSLIC's right to receive payments on and to purchase the Clark
County Judgment pursuant to the assistance agreement.
8. Effective November 30, 1989, Eureka, the Andersons and
certain related entities, in consideration for Eureka's
forbearance from executing on the Clark County Judgment, entered
into an agreement entitled "Debtor-Creditor Agreement ("DCA").
<PAGE>
The Andersons and J.B.A. Investments, J.A., Inc., Cedar
Development (the "Anderson Parties"), and certain related
entities, signed and delivered the DCA and Security Documents to
Eureka.
9. The DCA obligated Eureka to forbear from "recording,
executing or proceeding to collect on the Clark County Judgment"
until the earlier of the date on which the Andersons defaulted on
their obligations under the DCA or December 31, 1992. As an
exception, the DCA permitted Eureka to apply for and record a
California sister state judgment based on the Clark County
Judgment. As permitted by DCA paragraphs 2.01(b) and 9.12(g)(vi),
on or about December 29, 1989. Eureka applied for and, on January
17, 1990, Eureka obtained a California sister state judgment
based on the Clark County Judgment (the "California Sister-State
Judgment").
10. The Andersons and the Anderson Parties are the undisputed
record owners of the collateral described in the Security
Documents.
11. The DCA obligated the Andersons, among other things:
(a). to make a payment toward the "General Debt" (as defined in
the DCA) each and every month from December 29, 1989 until
December 31, 1992 in an amount equal to all "Net Cash Flow" (as
defined in the DCA) from the Maxim and from the Stationhouse, but
in no event less than $500,000.00 ("Minimum Payment"); and
(b). to pay the entire balance of the General Debt, including any
and all accrued but unpaid interest and all unpaid costs and
expenses payable under the DCA, on or before December 31, 1992;
and
<PAGE>
(c). to pay toward the General Debt, in addition to the Minimum
Payment, any and all distributions paid or payable with regard to
the Andersons' interest in (i) the Rancho Murieta Investors
general partnership, and any and all dividends paid or payable
with regard to the stock of (ii) Cedar Development, (iii) Pine
Tree Properties, Inc., (iv) California Dehydrating Co., Inc., and
(v) Fat City Feed Lot, Inc. (owned by the Andersons and pledged
to Eureka as security for the General Debt) and any and all
dividends paid or payable with regard to the stock of (vi) Baby
Grand, (vii) J.A., Inc., and (viii) J.B.A. Investments (owned by
Cedar Development and pledged to Eureka as security for the
General Debt).
12. To secure payment of the General Debt according to the terms
set forth in the DCA, and as part of the same transaction, the
Andersons and the Anderson Parties (including J.B.A. Investments,
J.A., Inc., and Cedar Development) made, executed and delivered
to Eureka the Security Documents (as defined in the DCA) which
granted Eureka and its successors and assigns a lien on or
security interest in the following collateral:
(a). Receivables and Related Contracts described in the Anderson
Security Agreement;
(b). Bank Accounts described in the Anderson Security Agreement;
(c). Personal Property described in the Anderson Security
Agreement;
(d). All proceeds of the collateral described in the Anderson
Security Agreement;
<PAGE>
(e). The Andersons' partnership interest in Rancho Murieta
Investors described in the Anderson Pledge Agreement;
(f). The stock of Pine Tree Properties, Inc. described in the
Anderson Pledge Agreement;
(g). The stock of California Dehydrating Company, Inc. described
in the Anderson Pledge Agreement;
(h). The stock of JB Dusters, Inc. described in the Anderson
Pledge Agreement;
(i). The stock of Fat City Feed Lot, Inc. described in the
Anderson Pledge Agreement;
(j). The stock of Cedar Development described in the Anderson
Pledge Agreement;
(k). The stock of Baby Grand described in the Cedar Development
Pledge Agreement;
(l). The stock of J.B.A. Investments described in the Cedar
Development Pledge Agreement;
(m). The stock of J.A., Inc. described in the Cedar Development
Pledge Agreement;
(n). All after-acquired shares of and distributions in respect of
the Baby Grand stock, J.B.A. Investments stock, and J.A., Inc.
stock described in the Cedar Development Pledge Agreement;
(o). The 3,400,000 shares of Dunes stock described in the J.B.A.
Pledge Agreement;
(p). All after-acquired shares of and distributions in respect of
the Dunes stock described in the J.B.A. Pledge Agreement;
<PAGE>
(q). The real property described in the Stationhouse Deed of
Trust;
(r). Personal property described in the J.A. Security Agreement;
(s). Inventory described in the J.A. Security Agreement;
(t). Receivables and Related Contracts described in the J.A.
Security Agreement;
(u). Assigned Agreements described in the J.A. Security
Agreement;
(v). Pledged Debt described in the J.A. Security Agreement;
(w). Bank Accounts described in the J.A. Security Agreement;
(x). All proceeds of the collateral described in the J.A.
Security Agreement;
13. Eureka duly perfected its liens on and security
interests in the Collateral described in the Security Documents,
with the exception of the J.B.A. Investments stock certificates.
14. The Andersons are in default and have breached obligations
under the DCA including, but not limited to, the following:
(a). Failure to make the Minimum Payment that came due on August
31, 1990 or any subsequent Minimum Payment; and
(b). Failure to pay the entire balance of the General Debt on or
before December 31, 1992.
15. On September 4, 1992, Eureka, by then renamed and
reorganized as Eurekabank, a federal savings bank, renewed the
<PAGE>
Clark County Judgment by filing with the Clerk of the Clark
County District Court an Affidavit for Renewal of Clark County
Judgment pursuant to NRS section 17.214 (the "Renewal"). The
Renewal stated that as of September 3, 1992, the exact amount due
on the Clark County Judgment was $42,721,020.02 plus interest of
$10,756.50 per day until paid.
16. On January 25, 1993 and again on February 12, 1993,
Eurekabank sent, and the Andersons and the Anderson Parties
received, Notices of Default pursuant to the DCA paragraphs 8.01,
8.02(a) and 9.10, declaring the Andersons in default of their
obligations under the DCA and the Security Documents. On May 11,
1995, the FDIC sent, and the Andersons and the Anderson Parties
received, Notices of Default pursuant to the DCA paragraphs 8.01,
8.02(a) and 9.10, declaring the Andersons in default of their
obligations under the DCA and Security Documents.
17. As of the date of these Findings, the noticed Events of
Default remain uncured and the amount of the General Debt
currently due and payable exceeds $66,000,000.00. The Collateral
is insufficient to secure and pay the General Debt.
18. Effective July 29, 1993, pursuant to the Assistance
Agreement and as permitted by DCA paragraph 9.05, Eurekabank
assigned to FDIC all its rights against the Andersons and the
Anderson Parties, including, but not limited to, the rights
represented by the Clark County Judgment, the California Sister-
State Judgment, the DCA, the General Debt, Eureka's liens on and
security interests in the collateral described in the Security
Documents, and the Security Documents themselves.
<PAGE>
19. FDIC is now and, at all times since July 29, 1993, has been
the lawful owner of the DCA, the Security Documents, the General
Debt, the Clark County Judgment, the California Sister- State
Judgment, and Eureka's liens on and security interests in the
Collateral described in the Security Documents.
20. The remedies for breach of the DCA include, but are not
limited to, the following:
(a). FDIC, on its own or by means of a receiver or agent, has the
right to enter upon and take possession of the Collateral
securing the General Debt, to collect the rents, issues and
profits from such Collateral, and to apply the proceeds to the
General Debt, less costs and expenses of operation and
collection, including reasonable attorneys' fees (DCA paragraph
8.02(b)(i));
(b). FDIC has the right to record and execute upon the Clark
County Judgment in any manner available (DCA 5 paragraph 8.02 (b) (ii));
and
(c). FDIC may exercise all rights and remedies with respect to
any and all security interests in collateral securing the General
Debt (DCA paragraph 8 .02 (b (iii)).
21. The Andersons and the Anderson Parties, in the DCA, have
stipulated to the appointment of a receiver of the Collateral
described in the Security Documents, and have further stipulated
that such receiver shall be appointed without regard to the
solvency of the Andersons or the Anderson Parties, without regard
to the adequacy of the security, and without regard to the
existence of waste (DCA paragraph 8.02 (b) (iv)) .
<PAGE>
22. The Andersons and the Anderson Parties have expressly
waived any and all objections and defenses to the appointment of
a receiver (DCA paragraph 8.02(b) (iv)).
23. The Andersons and the Anderson Parties agreed that any
receiver appointed pursuant to the DCA "shall have all the powers
of receivers in like or similar cases and all the powers and
duties of Eureka in case of entry as provided in [the DCA], and
shall continue as such and exercise all such powers until the
date of the confirmation of sale."
24. The Collateral has declined in value since the
effective date of the DCA.
CONCLUSIONS OF LAW
1. The Court has subject matter jurisdiction over this action
under 12 U.S.C. section 1819(b), and 28 U.S.C. section 1345. The
Court has personal jurisdiction over defendants. Venue is proper
in this Court.
2. The DCA and the Clark County Judgment (including the
California Sister-State Judgment) are legally separate and
distinct obligations of the Andersons. The Andersons explicitly
agreed that Eureka's forbearance from exercising its rights under
the Clark County Judgment did not constitute a waiver of such
rights. Eureka agreed to forbear from exercising its rights under
the Clark County Judgment and California Sister-State Judgment
only so long as there was no uncured Event of Default under the
DCA.
3. The default and breach by the Andersons of their obligations
under DCA paragraphs 2.02 (a), (b) and (d) constituted Events of
Default under DCA paragraphs 8.01(a) and (b) in that each such
<PAGE>
breach was a "failure to make the payment of principal or
interest on the General Debt, when and as the same shall become
due and payable, whether at maturity thereof, on a date fixed for
prepayment, or by acceleration or otherwise" and was a "failure
to perform or observe any covenant, condition or agreement
contained in the Settlement Documents."
4. Anderson and the Anderson Parties failed to apply the Net
Cash Flow from the Maxim and the Stationhouse (as required by DCA
paragraph 2.02(a)).
5. FDIC has no adequate remedy at law.
6. Absent injunctive relief and the appointment of a receiver,
there is a probability of irreparable harm to the FDIC's interest
in the Collateral. An order preventing any of the Andersons, the
Anderson Parties, their officers, agents, directors, partners,
direct and indirect subsidiaries and affiliates, representatives,
employees and anyone acting on their behalf from interfering with
FDIC's rights in the Collateral or the Receiver's management and
control of the Collateral will preserve the value of the
Collateral for secured party FDIC and will not harm any
interested party. The FDIC is, thus, entitled to a temporary
restraining order, preliminary injunction and permanent
injunction.
7. FDIC need not post a bond or other security in order to
obtain injunctive relief under Fed.R.Civ.P. 65. SEE 28 U.S.C.
section 2408 and 12 U.S.C. section 1819.
8. The FDIC is entitled to an order appointing a receiver
and granting injunctive relief, and to a judgment in its favor on
all causes of action.
<PAGE>
To the extent that any of the above findings of fact are
more accurately characterized as conclusions of law they shall be
so deemed; and to the extent that any of the above conclusions of
law should be more accurately characterized as findings of fact,
they shall be so deemed.
DATED this 12th day of September, 1995.
/s/
United States District Judge
Submitted by:
/s/
LEE S. MOLOF, ESQ.
HENDERSON, NELSON, WALSH,
MORGAN & MOLOF
McDONALD, CARANO, WILSON,
McCUNE, BERGIN, FRANKOVICH &
HICKS
A.J. HICKS, ESQ.
VALERIE COOKE SKAU, ESQ.
HUGHES HUBBARD & REED
RITA M. HAEUSLER, ESQ.
MICHAEL P. BARBEE, ESQ.
Attorneys for FDIC
APPROVED AS TO FORM AND CONTENT:
/s/
KUMMER KAEMPFER BONNER & RENSHAW
THOMAS F. KUMMER, ESQ.
Attorneys for Defendants
