UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW JERSEY
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In re:
GREATE BAY HOTEL AND CASINO, INC., Case No. 98-10001 (JW), et seq.
a New Jersey Corporation, GB HOLDINGS, (Jointly Administered) -- ---
INC., a Delaware Corporation, and
GB PROPERTY FUNDING CORP., a Delaware
Corporation, Chapter 11
Debtors.
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ORDER CONFIRMING MODIFIED FIFTH AMENDED JOINT
PLAN OF REORGANIZATION UNDER CHAPTER 11 OF THE
BANKRUPTCY CODE PROPOSED BY THE OFFICIAL
COMMITTEE OF UNSECURED CREDITORS AND HIGH RIVER
The Official Committee of Unsecured Creditors appointed in the
above-captioned cases (the "Committee")(1) together with Cyprus LLC ("Cyprus")
and Larch LLC ("Larch" and, collectively with Cyprus, "High River" and,
collectively with the Committee, the "Proponents") having filed with the Court a
Fifth Amended Joint Plan of Reorganization dated April 7, 2000 (the
"Committee/High River Plan") for Greate Bay Hotel and Casino, Inc. ("GBHC"), GB
Holdings, Inc. ("Holdings"), and GB Property Funding Corp. ("Funding" and,
collectively with GBHC and Holdings, the "Debtors"), each a debtor and debtor in
possession under Title 11, United States Code (the "Bankruptcy Code"), and a
Fifth Amended Supplement to the Master Disclosure Statement dated April 7, 2000
(the "Committee/High River Disclosure Supplement"); and the Second Amended
Master Disclosure Statement prepared by the Debtors (the "Master Disclosure
Statement") and the Committee/High River Disclosure Supplement having been
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(1) Unless otherwise defined herein, all capitalized terms shall have the
meanings set forth in the Committee/High River Plan.
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approved by Order of the Court dated April 20, 2000; and the Committee/High
River Disclosure Supplement, Master Disclosure Statement, and a copy of the
Fifth Amended Plan having been transmitted to holders of Claims against and
Equity Interests in the Debtors; and the Proponents having filed the Modified
Fifth Amended Joint Plan of Reorganization for the Debtors dated June 15, 2000
(the "Committee/High River Plan") (a copy of which is annexed hereto as Exhibit
1); and the Proponents having filed the Plan Supplement on or about June 16,
2000 and the Addenda to the Plan Supplement dated June 16, 2000 (as so added to,
the "Plan Supplement"); and June 20, 2000 at 10:00 a.m. having been fixed by
order of the Court dated April 20, 2000 (the "Procedures Order") as the date and
time of the commencement of the hearing (the "Confirmation Hearing") to
consider, inter alia, confirmation of the Committee/High River Plan pursuant to
Section 1129 of the Bankruptcy Code and Rule 3020 of the Federal Rules of
Bankruptcy Procedure ("Bankruptcy Rules"); and due notice of the Confirmation
Hearing having been given in accordance with the Procedures Order and applicable
law; and the solicitation of acceptances or rejections of the Committee/High
River Plan having been made in a manner required under the Procedures Order and
applicable law; and upon the Affidavit of Kathleen M. Logan of Logan & Company,
Inc. (the "Balloting Agent") dated June 16, 2000 and filed on or about June 20,
2000 with respect to the tabulation of ballots (the "Ballots") cast in respect
of, inter alia, the Committee/High River Plan; and the Ballots having been filed
with the Balloting Agent; and objections or responses (collectively, the
"Objections") to the Committee/High River Plan having been filed by Merrill
Lynch Asset Management, Park Place Entertainment Corporation, Greate Bay
Holdings, LLC, Greate Bay Casino Corporation, the Office of the United States
Trustee for this District, and the State of New Jersey, Division of Taxation;
and modifications to the Committee/High River Plan and the Plan Supplement
having been made on the record of the Confirmation Hearing and such
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modifications having been incorporated into the Committee/High River Plan;
and after hearing arguments of counsel and considering the evidence admitted
at the Confirmation Hearing; and upon the record of the Confirmation
Hearing; and after due deliberation and good and sufficient cause appearing
therefor;
IT IS HEREBY FOUND AND DETERMINED that:
(A) The Court has jurisdiction to confirm the Committee/High River Plan
pursuant to 28 U.S.C. ss. 1334(a); confirmation of the Committee/High River Plan
is a core proceeding pursuant to 28 U.S.C. ss. 157(b)(2)(L); venue in this
District for proceedings to confirm the Committee/High River Plan is proper
pursuant to 28 U.S.C. ss. 1409(a).
(B) The requirements for confirmation of the Committee/High River Plan
set forth in Sections 1129(a), (b), and (c) of the Bankruptcy Code have been
satisfied, as set forth in the Court's Opinion on Confirmation dated and filed
on July 28, 2000, which is incorporated by reference herein, as follows:
(i) the Committee/High River Plan, with the exception of the
exculpation provision of Section 12.2 thereof, which is hereby
severed from the Committee/High River Plan and stricken,
complies with the applicable provisions of the Bankruptcy
Code;
(ii) the Proponents have complied with the applicable provisions of
the Bankruptcy Code;
(iii) the Committee/High River Plan has been proposed in good faith
and not by any means forbidden by law;
(iv) the Proponents have disclosed to the Court any payment made or
to be made for services or for costs and expenses in
connection with these cases or the
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Committee/High River Plan, and any such payments have been
approved by, or are subject to the approval of, the Court as
reasonable;
(v) the Proponents have disclosed the identity, affiliations, and
compensation of individuals proposed to serve as officers and
directors of the Debtor after confirmation of the
Committee/High River Plan, and the continuance in or taking of
such offices by such individuals is consistent with the
interest of creditors and equity security holders and public
policy;
(vi) no governmental regulatory commission has jurisdiction over
rates charged by the Debtors;
(vii) for purposes of the Committee/High River Plan, each holder of
an allowed Claim will receive or retain under the
Committee/High River Plan on account of such Claim property of
a value, as of the Effective Date, that is not less than the
amount that such holder would receive or retain if the Debtors
were liquidated under Chapter 7 of the Bankruptcy Code on such
date;
(viii) with respect to Claims and Equity Interests that have rejected
the Committee/High River Plan, the Committee/High River Plan
can be confirmed notwithstanding such rejection under Section
1129(b) of the Bankruptcy Code;
(ix) the treatment of Administrative Expense and Priority Claims
under the Committee/High River Plan complies with the
provisions of Section 1129(a)(9) of the Bankruptcy Code;
(x) with respect to those impaired classes of Claims under the
Committee/High River Plan, at least one impaired class of
Claims has accepted the Committee/High River Plan, determined
without including any acceptance of the Committee/High River
Plan by any insider;
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(xi) confirmation of the Committee/High River Plan is not likely
to be followed by the liquidation, or the need for further
financial reorganization, of the Debtors;
(xii) all fees payable under Section 1930 of Title 28 of the United
States Code have been paid, or the Committee/High River Plan
provides for the payment of all such fees on the Effective
Date or as soon as practicable thereafter;
(xiii) the Debtors do not maintain and are not liable for retiree
benefits, as that term is defined in Section 1114 of the
Bankruptcy Code;
(xiv) the Committee/High River Plan does not discriminate unfairly
and is fair and equitable with respect to each impaired class
of Claims or Equity Interests that has not accepted the
Committee/High River Plan; and
(xv) pursuant to the provisions of Section 1129(c) of the
Bankruptcy Code, following due consideration of the
preferences of creditors and equity security holders, the
Committee/High River Plan should be confirmed;
(C) The modifications to the Fifth Amended Plan (i) contained
in the Committee/High River Plan and (ii) set forth on the record of the
Confirmation Hearing (collectively, the "Modifications") do not adversely change
the treatment of any Claim or Equity Interest of a party who has not accepted in
writing the Modifications; the Modifications satisfy the requirements of Section
1127 of the Bankruptcy Code; and, pursuant to Bankruptcy Rule 3019, the
Modifications are deemed to have been accepted by all Creditors who previously
accepted the Fifth Amended Plan;
(D) The Debtors' determination to reject certain leases and
executory contracts as set forth in Section 9.01(a) of the Committee/High River
Plan represents the exercise of sound business judgment and is the best
interests of the Debtors' estates and creditors, and the
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requirements of Section 365(a) of the Bankruptcy Code have been satisfied
with respect to such rejections;
(E) The Debtors, the Proponents, and their respective
officers, directors, members, employees, advisors, consultants, attorneys,
affiliates, and agents have acted in good faith and in compliance with the
applicable provisions of the Bankruptcy Code, including but not limited to
Sections 1125(e) and 1129(a)(3) of the Bankruptcy Code; and
(F) The Debtors have received the consent of any governmental
unit whose consent is required for confirmation.
IT IS HEREBY ORDERED that:
1. The Objections to the extent not previously withdrawn or overruled
are overruled.
2. The Committee/High River Plan as annexed hereto, as modified on the
record of the Confirmation Hearing, and with the exculpation provision of
Section 12.02 severed therefrom and stricken, and the provision for the
treatment of priority tax claims set forth in Section 2.02(a) of the
Committee/High River Plan modified so that cash payments provided for therein
shall be made no later than ten (10) days after the Effective Date, is
confirmed.
3. The rejection of those executory contracts and unexpired leases to be
rejected pursuant to Section 9.01 of the Committee/High River Plan is hereby
approved. Any and all Proofs of Claim arising out of such rejection must be
Filed within thirty (30) days after the Effective Date. Any Holder of a Claim
arising out of such 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, the
Reorganized Debtors, or their Estates. Unless otherwise ordered by this Court,
all Claims arising from the rejection of executory contracts and unexpired
leases shall be treated as General Unsecured Claims under the
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Committee/High River Plan. Nothing contained in this Order shall extend the
time for Filing a Proof of Claim for rejection of any executory contract or
unexpired lease that was rejected by Order of the Court entered prior to the
Confirmation Date.
4. As soon as reasonably practicable after the Effective Date, pursuant
to Section 6.07 of the Committee/High River Plan, Cyprus and Larch shall assign
to Reorganized GBHC all of their right, title, and interest in that certain High
River Sands Agreement dated June 8, 2000 between and among Cyprus, Larch, and
LVSI regarding the Sands Trademark. Upon the assignment of the High River Sands
Agreement, neither Cyprus nor Larch shall have any further obligations under the
High River Sands Agreement.
5. As of the Effective Date, the issuance of the New Common Stock, the
new common stock of Reorganized Funding and Reorganized GBHC, the adoption and
approval of the New Holdings Certificate, the New Holdings By-Laws, as amended,
the Amended GBHC Certificate, as restated, the New GBHC By-Laws, as amended, the
New Funding Certificate, the New Funding By-Laws, as amended, the election or
appointment of directors and officers pursuant to the Committee/High River Plan,
and the other matters as provided for in the Committee/High River Plan involving
the corporate structure of the Reorganized Debtors or otherwise shall be deemed
to have occurred and shall be in effect from and after the Effective Date
pursuant to Section 303 of the Delaware General Corporation Law, Section
14A:14-24 of New Jersey Business Corporation Act, and other applicable laws,
without any requirement of further action by the stockholders or directors of
the Debtors or the Reorganized Debtors and as if unanimously approved by such
stockholders or directors, and the respective officers of the Debtors and/or the
Reorganized Debtors are hereby authorized to execute the foregoing documents, as
amended, and to cause such documents to be filed, if appropriate, in the
respective jurisdictions of the Debtors or the Reorganized Debtors.
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6. As of the Effective Date, any and all transactions contemplated by
the Committee/High River Plan between and among Carl C. Icahn or any entities
affiliated with him (collectively "Icahn") and the Reorganized Debtors,
including, without limitation, any purchase, issuance, or distribution of
securities of the Reorganized Debtors to Icahn pursuant to the High River Stock
Purchase Agreement or otherwise, are deemed unanimously approved by the boards
of directors of the Reorganized Debtors in accordance with Section 303 of
Delaware General Corporation Law and other applicable law prior to the
occurrence of such transactions, all in accordance with Section 203(a) of the
Delaware General Corporation Law and the respective officers of the Debtors
and/or the Reorganized Debtors are hereby authorized to execute the High River
Stock Purchase Agreement.
7. As of the Effective Date, the Proponents, the Debtors, and the
Reorganized Debtors are authorized to execute, deliver, file, or record such
contracts, instruments, releases, and other agreements or documents (including
the New Holdings Certificate, the New Holdings By-Laws, as amended (a copy of
which is annexed as Exhibit 2), the New GBHC By-Laws, as amended (a copy of
which is annexed as Exhibit 3), the New Funding Certificate, the New Funding
By-Laws, as amended (a copy of which is annexed as Exhibit 4), the Notes
Indenture, as amended (a copy of which is annexed as Exhibit 5), and the Amended
GBHC Certificate, as restated (a copy of which is annexed as Exhibit 6)), and to
take such actions as may be necessary or appropriate to effectuate and further
evidence the terms and conditions of the Committee/High River Plan. All
transactions that are required to occur on the Effective Date under the terms of
the Committee/High River Plan shall be deemed to have occurred simultaneously,
except the approval of the High River Stock Purchase Agreement as provided for
above, which approval shall be deemed to have occurred immediately prior to all
other transactions authorized herein. The Old Notes Trustee shall deliver in
recordable form all
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documents or instruments reasonably requested by the Debtors or the
Reorganized Debtors to cancel of record all mortgages, liens, security
interests, and encumbrances on any Collateral for the Old Notes.
8. Except as otherwise set forth the Committee/High River Plan, subject
to the provisions of and for the purposes of distributions in accordance with
the Committee/High River Plan, all property of the Estates, including all Causes
of Action, shall revest in the Reorganized Debtors on the Effective Date. Such
revested property shall be free and clear of all liens, claims, encumbrances,
and interests, except as otherwise provided in the Committee/High River Plan.
The Reorganized Debtors shall be authorized to prosecute all Causes of Action
after the Effective Date.
9. Pursuant to Section 1141 of the Bankruptcy Code, all Claims against
or Interests in the Debtors will be discharged and deemed satisfied upon the
Effective Date. As of the Effective Date, all Entities that have held, currently
hold, or may hold a Claim against the Debtors affected by the Committee/High
River Plan are enjoined from taking any actions to collect or recover in any
manner on account of any such Claims from any or all of the Assets, except as
otherwise provided in the Committee/High River Plan. The Unsecured Creditors
Fund Administrator and all General Unsecured Creditors will have no recourse
against the Reorganized Debtors, their Estates, or the Proponents after the
Effective Date, except for payments for reimbursement of expenses allowed by the
Court up to an aggregate of $200,000 related to the administration of the
Unsecured Creditors Fund pursuant to Section 2.04 of the Committee/High River
Plan.
10. Entry of this Order and the occurrence of the Effective Date shall
ratify all transactions effected by the Debtors and the Proponents from and
including the Petition Date through the Effective Date.
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11. From and after the entry of this Order, the Debtors and the
Reorganized 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.
12. Pursuant to Section 1146(c) of the Bankruptcy Code, the issuance,
transfer or exchange of securities or other property under the Committee/High
River 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 Committee/High River 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 Committee/High River Plan without the imposition of any
charge, fee, governmental assessment, or tax.
13. Pursuant to Section 1125(e) of the Bankruptcy Code, the Debtors, the
Proponents, and their respective professionals and representatives are not
liable on account of their solicitation of acceptances of the Committee/High
River Plan and the issuance, offer, purchase, or sale of securities thereunder
in good faith and in compliance with the Bankruptcy Code for any violation of
applicable law, rule, or regulation governing the solicitation of acceptances of
a plan of reorganization or the issuance, offer, purchase, or sale of
securities.
14. Subject to the satisfaction of the Regulatory Conditions and
pursuant to Section 1145 of the Bankruptcy Code, (a) the securities issued under
and pursuant to the Committee/High River Plan are exempt from Section 5 of
the Securities Act of 1933, as amended (the "Securities Act"), and any state
or local law requiring registration for the offer or the sale of securities or
the registration of the issuer; and (b) the resale of securities issued under
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and pursuant to the Committee/High River Plan is exempt from Section 5 of the
Securities Act and any state or local law requiring registration prior to the
offer or the sale of securities to the fullest extent permitted by applicable
law. 15. Except as otherwise set forth in the Committee/High River 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 are permanently enjoined
from and against (i) commencing or continuing in any manner any suit, action or
other proceeding of any kind against the Debtors, the Reorganized Debtors, 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, the Reorganized Debtors, or the
Estates, (iii) creating, perfecting, or enforcing any lien or encumbrance of any
kind against the Debtors, the Reorganized Debtors, or the Estates, 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, the Reorganized Debtors,
or against any property or interest in property of the Debtors or the
Reorganized Debtors with respect to any such Claim or Interest; and (b) any
Claim, right, action, cause of action against or Interest in the Debtors, the
Reorganized Debtors, or the Estates are 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, the Reorganized Debtors, or the Estates with respect to any matter
that is the subject of the Committee/High River Plan.
16. As of the Effective Date, the Committee/High River Plan shall be
binding upon and shall inure to the benefit of the Debtors, the Reorganized
Debtors, the Holders of all Claims and Interests, and their respective
successors and assigns, and shall bind each of the
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Holders of Claims and Interests to the terms and conditions of the
Committee/High River Plan, regardless of whether such Holder has accepted the
Committee/High River Plan.
17. Following the Effective Date, the Bankruptcy Court shall retain and
have jurisdiction for the following purposes: (i) to adjudicate all
controversies concerning the classification or allowance of any Claims or
Interests; (ii) to liquidate, allow, or disallow any Claims which are disputed,
contingent, or unliquidated; (iii) to determine any and all objections to the
allowance of Claims or Interests, or counterclaims to any Claim; (iv) 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 Committee/High River Plan; (v) 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; (vi) to adjudicate any actions brought by the Debtors on any Causes
of Action, at any time prior to expiration of the relevant statute of
limitations; (vii) 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; (viii) to consider any modifications of the Committee/High
River Plan, remedy any ambiguity, defect or omission or reconcile any
inconsistency in any Order of this Court, including this Order, to the extent
authorized by the Bankruptcy Code; (ix) to determine all controversies, suits
and disputes that may arise in connection with the interpretation, enforcement,
or consummation of the Committee/High River Plan; (x) to consider and act on the
compromise and settlement of any Claim or cause of action by or against the
Debtors or the Estates, including, but not limited to, determining all
controversies, suits, and disputes that may arise in connection with the
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interpretation, enforcement, or consummation of such compromises and
settlements previously approved by the Bankruptcy Court or that may be approved
in the future; (xi) to issue orders in aid of execution of the Committee/High
River Plan to the extent authorized by Section 1142 of the Bankruptcy
Code; (xii) to determine such other matters as may be set forth in this Order
or that may arise in connection with the Committee/High River Plan or this
Order; (xiii) to adjudicate disputes over the issuance of New Notes or New
Common Stock to Holders of Allowed Claims; and (xiv) to administer the ADR
Procedure.
18. This Order shall not be subject to a stay pursuant to Bankruptcy
Rule 3020(e).
Dated: August 11, 2000
/s/ Judith H. Wizmur
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UNITED STATES BANKRUPTCY JUDGE
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