<PAGE>
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FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
-----------------------
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT: June 25, 1998
Commission file number 33-75808
ARIZONA CHARLIE'S, INC.
----------------------------
(Exact name of registrant as specified in its charter)
Nevada 88-0199671
------ ----------
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
740 S. Decatur
Las Vegas, Nevada 89107
----------------- -----
(Address of principal (Zip Code)
executive offices)
(702) 258-5200
--------------
(Registrant's telephone number, including area code)
================================================================================
Item 3(b). Bankruptcy or Receivership.
On November 14, 1997, Arizona Charlie's, Inc. ("AC" or the
"Company") filed a voluntary petition under Chapter 11 of the United States
Bankruptcy Code (Case No.97-28781 LBR) with the United States Bankruptcy Court
for the District of Nevada (the "Bankruptcy Court") in Las Vegas, Nevada. At a
confirmation hearing on June 25, 1998, the Bankruptcy Court confirmed the
"Consensual Plan of Reorganization Proposed by the Debtor and High River" dated
June 24, 1998 (the "Consensual Plan"), which was proposed jointly by: (i) AC;
and (ii) High River Limited Partnership ("High River"). High River is the holder
of over 50% of the outstanding 12% First Mortgage Notes issued by AC in the
original amount of $55,000,000 on or about November 15, 1993 (the "AC Notes").
Previously, three competing plans of reorganization had been
proposed in this case -- a plan proposed by AC (the "AC Plan"), a plan proposed
by High River (the "High River Plan"), and a plan proposed by Fertitta
Enterprises and Station Casinos, Inc. (the "Fertitta Plan") (collectively, the
"Prior Plans"). Shortly before a confirmation trial on the three competing Prior
Plans was scheduled to commence on June 18, 1998, AC and High River entered into
a settlement agreement which formed the basis for the Consensual Plan. The
Consensual Plan represents an amalgamation and melding of portions of the AC
Plan and the High River Plan which had been accepted by creditors and parties in
interest in the case.
As confirmed by the Bankruptcy Court, the Consensual Plan allows
AC to reorganize its business affairs and continue as a going concern. The
Consensual Plan contemplates two scenarios: (i) the "Financing Option", under
which AC and its current principals will continue to own, manage, and operate
AC's business -- Arizona Charlie's Hotel & Casino (the "Casino"); or (ii) the
"Debt Conversion Option", under which the ownership, management, and operation
of the Casino will be transferred to High River.
AC generally has through July 31, 1998 to close proposed new
financing that will fund payments to creditors under the Financing Option of the
Consensual Plan. If the financing is not completed by July 31, 1998, the Debt
Conversion Option will be effective. As previously reported, AC has obtained a
financing commitment from United Healthcare Financial Services, LLC ("UHFS")
that would provide AC the financing it needs to fund the Financing Option. The
Company currently expects the UHFS financing to be completed prior to July 31,
1998, but there can be no assurances in that regard. Moreover, to facilitate the
Consensual Plan, AC's shareholder (Becker Gaming, Inc.) will provide AC with a
$1.5 million new cash equity contribution, and AC's affiliates will waive
substantial claims (over $7 million) against AC.
Under the Financing Option, all non-insider creditors are to
receive full payment of their claims under the terms provided in the Consensual
Plan, except for the holders of the AC Notes and the holders of 12% First
Mortgage Notes issued by Capitol Queen & Casino (an affiliate of AC) in the
original amount of $40 million on or about November 15, 1993 (the "CQC Notes")
that have asserted an unsecured claim against AC based on AC's limited guaranty
of the CQC Notes (the "CQC Noteholders Guaranty Claims"). The claims of the
holders of the AC Notes are satisfied in full by up-front cash payments totaling
$61,600,000 plus a portion of the $1.5 million new value contribution. The
holders of the CQC Noteholders Guaranty Claims receive an aggregate up-front
cash payments totaling $1.5 million plus a portion of the $1.5 million new value
contribution in full satisfaction of those claims against AC as a limited
guarantor of the CQC Notes.
The Debt Conversion Option of the Consensual Plan will apply if
either: (i) by July 31, 1998, AC has not closed a new financing so that it has
cash available sufficient to make the payment of $61,600,000 to the holders of
the AC Notes; or (ii) by July 24, 1998, AC has not received the $1.5 million new
cash equity contribution from its sole shareholder. Under the Debt Conversation
Option, other than the holders of the AC Notes, creditors would receive the same
treatment as under the Financing Option. The holders of the AC Notes, other than
High River, would receive a cash payment from High River in the amount of $960
per $1,000 of aggregate principal amount of the AZC Notes owned. In addition,
all of the existing shares of AC stock would be canceled, and 100% of the new
stock of AC as reorganized would be issued to High River, making High River the
sole shareholder of the reorganized Company.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
Exhibit No. Description
2.1 Consensual Plan of Reorganization
2.2 Order Confirming Plan of Reorganization
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Arizona Charlie's, Inc.
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(Registrant)
Date: July 10, 1998 /S/ Bruce F. Becker
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Bruce F. Becker
President, Chief Executive
Officer (Principal Executive
Officer) and Sole Director
Date: July 10, 1998 /S/ Jerry Griffis
---------------- -----------------
Jerry Griffis
Controller (Principal Financial and
Accounting Officer)
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EXHIBITS
2.1 Consensual Plan of Reorganization
-------------------------------------
J. Douglas Driggs, Esq. (003938)
Ronald J. Thompson (005524)
JAMES, DRIGGS & WALCH
3773 Howard Hughes Parkway
Suite 290N
Las Vegas, Nevada 89109
(702) 791-0308
-and-
John J. Dawson, Esq. (004099)
John R. Clemency, Esq. (AZ Bar No. 009646)
STREICH LANG
A Professional Association
Renaissance One
Two North Central Avenue
Phoenix, Arizona 85004-2391
(602) 229-5200
Attorneys for ARIZONA CHARLIE'S, INC.,
Debtor and Debtor-in-Possession
================================================================================
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEVADA
In re:
ARIZONA CHARLIE'S, INC.,
a Nevada corporation,
Debtor.
================================================================================
In Proceedings Under Chapter 11
Case No. 97-28781-LBR
ORDER CONFIRMING CONSENSUAL PLAN OF REORGANIZATION
PROPOSED BY THE DEBTOR AND HIGH RIVER
================================================================================
This matter came before the Court on June 25, 1998 for a
confirmation hearing on the "Consensual Plan of Reorganization Proposed by the
Debtor and High River" dated June 24, 1998 (the "Plan"). The Plan was filed by:
(i) ARIZONA CHARLIE'S, INC., the debtor and debtor-in-possession in the
above-captioned Chapter 11 case (the "Debtor"); and (ii) HIGH RIVER LIMITED
PARTNERSHIP ("High River").1 With respect to the Plan, the Court finds and
concludes as follows:
1. Previously, three competing plans of reorganization had
been proposed in this case -- the AZC Plan, the High River Plan, and the
Fertitta Plan (collectively, the "Prior Plans").
2. At a hearing on May 15, 1998, the Court approved the
Disclosure Statements relating to the Prior Plans, and fixed certain procedures
related to the solicitation of votes on the competing Prior Plans. Thereafter,
plan solicitation packages (with the materials approved by the Court), including
the Disclosure Statements, were timely transmitted to the creditors from whom
votes were solicited, all in accordance with Bankruptcy Rule 3017(d) and Court's
directions.
3. The voting on the Prior Plans is summarized in the ballot
reports submitted by Ernst & Young, LLP, the independent balloting agent.
4. A number of parties filed timely objections to one or more
of the three Prior Plans (the "Objections").
5. The material terms of the Plan were set forth in the "Term
Sheet Agreement Between AZC (And Affiliates) And High River Limited Partnership"
dated June 16, 1998 (the "Settlement Term Sheet").2
6. The Plan represents an amalgamation and melding of portions
of the AZC Plan and the High River Plan which have been accepted by creditors
and parties in interest in the case. The Plan is designed to restructure the
financial obligations and business affairs of the Debtor. The Plan contemplates
two potential (2) scenarios: (i) the Financing Option, under which the Debtor
and its current principals will continue to own, manage, and operate the Casino;
or (ii) the Debt Conversion Option, under which the ownership, management, and
operation of the Casino will be transferred to High River.
7. On June 25, 1998, the Court conducted a hearing regarding
the confirmation of the Plan. At the hearing, confirmation of the Plan was
supported by the Debtor, High River, and the Creditors' Committee. All
Objections have been either withdrawn or resolved by the Plan, or shall be
overruled.
8. The treatment provided for each class of non-insider claims
under the Plan is in all cases the same or better than the treatment accepted by
that class with respect to the Prior Plans. Accordingly, no further disclosure
of information, solicitation of creditors, or voting is required with respect to
the Plan.
9. Confirmation of the Plan is a core proceeding under 28
U.S.C. ss.157(b). Pursuant to 28 U.S.C. ss.ss.157(b) and 1334, this Court has
the jurisdiction to enter a final order confirming the Plan.
10. At the hearing, and as provided in this Order, the parties
modified the Plan as follows: (a) The definition of the AZC
Affiliates in ss.2.6 of the Plan includes the Becker Family.
(b) The definition of the High River Plan in ss.2.73 of the
Plan includes all amendments to the High River Plan. (c) The
reference to 4.11.3 in the text of ss.4.11.1 of the Plan is
replaced by a reference to 4.11.2. (d) Section ss.4.11.1 of
the Plan is revised such that the word "subsections" is
changed to "subsection" and the reference to "and 4.11.2" is
deleted. (e) The word "and" in ss.6.2.2(b) is replaced with
word "or." (f) Section 2.5 is modified to insert "or
successors" after the word "representatives." (g) Section 4.6
of the Plan is modified to provide that the Class 6 Gaming
Equipment Secured Claims will be paid effective August 18,
1998, in accordance with the High River Plan in the event of
the Debt Conversion Option. (h) The Record Date as stated in
ss.2.87 of the Plan is June 25, 1998. (i) Section 2.5 is
modified to include "but not" before "including" and delete
"but not limited to" after "including." (j) Section 4.13 is
modified to delete "as and when they" before "are Allowed
Claims" and insert "subject to the treatment below" after "are
Allowed Claims." (k) Section 2.75 is modified to delete "as
allowed by the Bankruptcy Court" after "CQC Indenture."
Footnote 4 of Section 2.75 is modified to add "in accordance
with the provisions of the applicable indenture" at the end of
the sentence. 11. After a hearing on due and proper notice,
and based on the entire record before the Court
(including declarations submitted by the Debtor), the Court has determined that
the Plan satisfies the requirements for confirmation set forth in Bankruptcy
Code ss.1129(a) and (b).
Based on the foregoing findings and conclusions, and the
entire record before the Court; and good cause appearing,
IT IS HEREBY ORDERED as follows:
A. The Plan (as amended by this Order) shall be, and hereby
is, confirmed pursuant to Bankruptcy Code ss.1129. The Plan, a copy of which is
attached hereto as Exhibit "A", is approved, confirmed, and incorporated into
this Order as the Court's decree.
B. All objections to the Plan that have not been withdrawn,
waived or settled, shall be, and hereby are, overruled on the merits.
C. The Debtor, the Reorganized Debtor, High River, the
trustees under the AZC Indenture and the CQC Indenture, and all other necessary
parties are authorized and empowered, without further Court order, to execute
and deliver any document, and to perform any act, that is necessary, desirable
or required for the consummation of the Plan.
D. Without limiting the generality of Paragraph C of this
Order in any way, the Debtor is hereby authorized to borrow from UHFS the funds
necessary to perform under the Financing Option of the Plan, and the Debtor is
authorized to pay (solely out of gross loan proceeds) all loan fees and related
expenses provided in the Financing Commitment, including, but not limited to,
the fees and expenses provided in the Financing Commitment for UHFS and Holliday
Fenoglio, LLP (subject to any necessary approval by the Gaming Authorities). In
connection with the UHFS Loan, and as and when the $61,600,000 payment is made
to the trustee under the AZC Indenture for disbursement to the AZC Noteholders
pursuant to Section 4.5.1 of the Plan, and upon the satisfaction of the payment
of the cash portion of the New Value Contribution on or before July 24, 1998,
UHFS will receive (and is hereby granted) a first and prior lien on the Casino
and on the CHSC Leases. Attached to this Order as Exhibit "B" are the legal
descriptions of the Casino and the CHSC Leases on which UHFS will receive a
first lien as and when funds of its loan are paid to the trustee under the AZC
Indenture for disbursement to the AZC Noteholders pursuant to Section 4.5.1 of
the Plan.
E. In the event that the Debtor performs under the Financing
Option, as provided in Section 4.5.1 of the Plan, each of the AZC Noteholders as
of the Record Date, through a payment made to the trustee under the AZC
Indenture, will receive its pro rata share of a $61,600,000 cash payment, along
with its share of the New Value Contribution as provided in Section 2.75 of the
Plan in full satisfaction of all claims arising under the AZC Notes, the AZC
Indenture, the AZC Security Documents, and related documents. In exchange for
the $61,600,000 cash payment and the transfer of a portion of the New Value
Contribution provided under Section 2.75 of the Plan to the trustee of the AZC
Indenture for disbursement to the AZC Noteholders, the AZC Notes will be
canceled automatically without the need to deliver the canceled AZC Notes to the
Debtor or to the Reorganized Debtor, and the AZC Security Documents and the AZC
Noteholders Collateral will be released, reconveyed, and otherwise extinguished
automatically without the need to deliver formal releases, reconveyances, or
other such devices. This automatic release and reconveyance of the AZC
Noteholders Collateral will include, without limitation, an automatic release
and reconveyance of the deed of trust lien under the following deed of trust,
which encumbers the Casino property described in Exhibit "B" to this Order:
"Fee and Leasehold Deed of Trust, Assignment of Leases and Subleases, Security
Agreement and Fixture Filing" by Arizona Charlie's, Inc. and Charlie's Land
Company as grantors, to Land Title of Nevada, Inc. as trustee, for the benefit
of IBJ Schroder Bank & Trust Company (as Collateral Agent for the Holders of the
First Mortgage Notes due 2000), dated as of November 15, 1993, recorded in the
Official Records of Clark County, Nevada, Book No. 931117, Document No. 00928.
The trustee under the AZC Indenture is hereby authorized and directed to execute
such documents and to perform such other acts as may necessary to cancel the AZC
Notes and to release and extinguish the AZC Noteholders Collateral effective
immediately when the trustee under the AZC Indenture receives the funds for
disbursement pursuant to Section 4.5.1 of the Plan.
F. To facilitate the Debtor's efforts to close by June 30,
1998 the financing to fund payments under the Financing Option of the Plan, this
Order shall be immediately effective, and the 10-day automatic stay of Rule 62,
Federal Rules of Civil Procedure, and Rules 7062 and 9014, Federal Rules of
Bankruptcy Procedure will not apply to stay or otherwise suspend the immediate
effectiveness of this Order.
G. As part of the New Value Contribution, the AZC Affiliates
will contribute to the Debtor $1,500,000 in cash. The Debtor shall hold this
amount in a separate account. If the cash portion of the New Value Contribution
has not been received by the Debtor by July 24, 1998: (i) the Debt Conversion
Option of the Plan will become effective immediately; and (ii) each of the AZC
Affiliates will be jointly and severally obligated to pay to High River
$1,750,000 in cash.
H. For the Financing Option of the Plan to become effective,
the Debtor must have cash available by July 31, 1998 sufficient to make the cash
payment of $61,600,000 to the Class 5 AZC Noteholders on or before August 7,
1998, together with the cash portion of the New Value Contribution by July 24,
1998. If these requirements are met, the Debt Conversion Option of the Plan is
eliminated.
I. Pursuant to Bankruptcy Code ss.1141, and except as
otherwise proved in the Plan or this Order, entry of this Order discharges any
and all Claims against the Debtor including, but not limited to, any Claim which
arose at any time before the entry of this Order and any Claim of a kind
described in Bankruptcy Code ss.502(g), (h) and (i). On and after the
Confirmation Date, every holder of a discharged Claim will be precluded from
asserting against the Debtor, the Reorganized Debtor, or any assets of the
Debtor or Reorganized Debtor, any such discharged Claim and any rights,
remedies, demands, damages, or liabilities of any kind arising from or related
to any such discharged Claim.
J. This Court shall retain jurisdiction in accordance with the
terms of Section 10.7 of the Plan. Such retention of jurisdiction shall not, and
does not, affect the finality of this Order.
K. The Executory Contracts of the Debtor listed in Exhibit "B"
to the Debtor's Disclosure Supplement will be, and hereby are, assumed upon the
Confirmation Date of the Plan pursuant to Bankruptcy Code ss.365. Any and all
Executory Contracts of the Debtor that are not expressly assumed pursuant to the
Plan or which have not been otherwise assumed by the Debtor in the
Reorganization Case will be, and hereby are, rejected as of the Confirmation
Date pursuant to Bankruptcy Code ss.365.
DATED this 25th day of June, 1998.
/s/ Linda Riegle
-------------------------------
UNITED STATES BANKRUPTCY JUDGE
================================================================================
2.2 Order Confirming Plan of Reorganization
-------------------------------------------
J. Douglas Driggs, Esq. (Nev. Bar No. 03938)
Ronald Thompson, Esq. (Bar No. 005524)
JAMES, DRIGGS & WALCH
3773 Howard Hughes Parkway
Suite 290N
Las Vegas, Nevada 89109
(702) 791-0308
-and-
John J. Dawson, Esq. (Nev. Bar No. 4099)
John R. Clemency, Esq. (AZ Bar No. 09646)
STREICH LANG
Renaissance One
Two North Central Avenue
Phoenix, Arizona 85004-2391
(602) 229-5200
Attorneys for ARIZONA CHARLIE'S, INC.,
Debtor and Debtor-In-Possession
================================================================================
HALE, LANE, PEEK, DENNISON,
HOWARD, ANDERSON AND PEARL
Lenard E. Shwartzer, Esq. (#399)
Nevada Financial Center
2300 West Sahara Avenue
Eighth Floor, Box 8
Las Vegas, Nevada 89102
-and-
BERLACK, ISRAELS & LIBERMAN LLP
Edward S. Weisfelner, Esq.
Bari J. Mattes, Esq.
120 West 45th Street
New York, New York 10036
(212) 704-0100
Attorneys for High River
Limited Partnership
================================================================================
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEVADA
In re:
ARIZONA CHARLIE'S, INC., a
Nevada corporation,
Debtor.
- -------------------------------
In Proceedings Under Chapter 11
Case No. 97-28781-LBR
CONSENSUAL PLAN OF REORGANIZATION
PROPOSED BY THE DEBTOR AND HIGH RIVER
-----------------------------------------
DATED: June 24, 1998
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE I. INTRODUCTION
ARTICLE II. DEFINITIONS
2.1 "Administrative Claim"
2.2 "Allowed Claim"
2.3 "Appendix of Financing Documents"
2.4 "Assigned Claims"
2.5 "Avoidance Actions"
2.6 "AZC Affiliates"
2.7 "AZC Affiliates Unsecured Claims"
2.8 "AZC/CQC Claims"
2.9 "AZC Indenture"
2.10 "AZC Limited Guaranty"
2.11 "AZC Notes"
2.12 "AZC Noteholders"
2.13 "AZC Noteholders Collateral"
2.14 "AZC Note Purchase Agreement"
2.15 "AZC Noteholders Secured Claim"
2.16 "AZC Plan"
2.17 "AZC Security Documents"
2.18 "Ballots"
2.19 "Bankruptcy Code"
2.20 "Bankruptcy Court"
2.21 "Bankruptcy Rules"
2.22 "Becker Family"
2.23 "Becker Receivables"
2.24 "BGI"
2.25 "BGI Management Agreement"
2.26 "BGI Management Fee Claim"
2.27 "BGI Receivables"
2.28 "BGI Stockholders"
2.29 "BGI Stockholders Claim"
2.30 "BGI Warrants"
2.31 "Business Day"
2.32 "Cash"
2.33 "Casino"
2.34 "Chapter 11 Professionals"
2.35 "Claim"
2.36 "Class"
2.37 "CHSC"
2.38 "CHSC Leases"
2.39 "Collateral"
2.40 "Confirmation Date"
2.41 "Confirmation Hearing"
2.42 "Confirmation Order"
2.43 "Court"
2.44 "Creditor"
2.45 "Creditors' Committee"
2.46 "Creditors' Committee Professionals"
2.47 "CQC"
2.48 "CQC Indenture"
2.49 "CQC Notes"
2.50 "CQC Noteholders"
2.51 "CQC Noteholders Guaranty Claim"
2.52 "Debt Conversion Option"
2.53 "Debtor"
2.54 "Debtor's Professionals"
2.55 "Disclosure Statements"
2.56 "Disputed Claim"
2.57 "Effective Date"
2.58 "Effective Date Cash"
2.59 "Equity Interests"
2.60 "Estate"
2.61 "Executory Contract"
2.62 "Existing CHSC Liens"
2.63 "Fertitta"
2.64 "Fertitta Plan"
2.65 "Filed"
2.66 "Final Order"
2.67 "Financing Commitment"
2.68 "Financing Option"
2.69 "Gaming Authorities"
2.70 "Gaming Control Board"
2.71 "Gaming Commission"
2.72 "Gaming Equipment Secured Claims"
2.73 "High River Plan"
2.74 "New Common Stock"
2.75 "New Value Contribution"
2.76 "Old Common Stock"
2.77 "Operating Order"
2.78 "Other Unsecured Claims"
2.79 "Person"
2.80 "Petition Date"
2.81 "Plan"
2.82 "Plan Payments"
2.83 "Priority Tax Claim"
2.84 "Priority Unsecured Claim"
2.85 "Pro Rata Share"
2.86 "Professional Charges"
2.87 "Record Date"
2.88 "Reorganization Case"
2.89 "Reorganized Articles"
2.90 "Reorganized By-laws"
2.91 "Reorganized Debtor"
2.92 "Schedules"
2.93 "Secured Claim"
2.94 "Secured Creditor"
2.95 "Secured Tax Claims"
2.96 "SEC"
2.97 "Shopping Center"
2.98 "Shopping Center Purchase Option"
2.99 "Sunset Coin"
2.100 "Sunset Coin Claim"
2.101 "Sunset Coin Limited Guaranty"
2.102 "Trade Unsecured Claims"
2.103 "Unsecured Claim"
2.104 "Unsecured Creditor"
2.105 "Working Capital Reserve"
ARTICLE III. CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
3.1 Class 1: Allowed Administrative Claims
3.2 Class 2: Allowed Priority Unsecured Claims
3.3 Class 3: Allowed Secured Tax Claims
3.4 Class 4: Allowed Priority Unsecured Tax Claims
3.5 Class 5: Allowed Secured Claims of the AZC
Noteholders
3.6 Class 6: Allowed Gaming Equipment Secured Claims
3.7 Class 7: Allowed Other Secured Claims
3.8 Class 8:(Intentionally Omitted)
3.9 Class 9: Allowed Trade Unsecured Claims
3.10 Class 10: Class 10:(Intentionally Omitted)
3.11 Class 11: Allowed Other Unsecured Claims
3.12 Class 12: Allowed AZC Affiliates Unsecured Claims
3.13 Class 13: Allowed CQC Noteholders Guaranty Claim
3.14 Class 14: Allowed Equity Interests
ARTICLE IV. TREATMENT OF CLASSES OF CLAIMS UNDER THE PLAN
4.1 Treatment of Class 1 (Administrative Claims)
4.2 Treatment of Class 2 (Priority Unsecured Claims)
4.3 Treatment of Class 3 Claims (Secured Tax Claims)
4.4 Treatment of Class 4 (Priority Tax Claims)
4.5 Treatment of Class 5 (AZC Noteholders Secured Claim)
4.6 Treatment of Class 6 (Gaming Equipment Secured
Claims)
4.7 Treatment of Class 7 (Other Secured Claims)
4.8 Treatment of Class 8 (Intentionally Omitted)
4.9 Treatment of 9 (Trade Unsecured Claims)
4.10 Treatment of Class 10 (Intentionally Omitted)
4.11 Treatment of Class 11 (Allowed Other Unsecured
Claims)
4.11.1 Payment Generally
4.11.2 Limitation on Payments
4.11.4 Reservation of Rights
4.12 Treatment of Class 12 (AZC Affiliates Unsecured
Claims)
4.13 Treatment of Class 13 (CQC Noteholders Guaranty
Claims)
4.14 Class 14: (Equity Interests)
ARTICLE V. EXECUTORY CONTRACTS AND UNEXPIRED LEASES
5.1 Assumption of Certain Executory Contracts
5.2 Rejection of Other Executory Contracts
5.3 Rejection Claims Bar Date
5.4 Vesting
ARTICLE VI. MEANS FOR IMPLEMENTATION OF PLAN
6.1 Structure, Management, And Funding Of Reorganized Debtor Under
The Financing Option
6.1.1 Structure Of Reorganized Debtor
6.1.2 Officers and Management of the Reorganized
Debtor
6.1.3 Funding of the Plan6
6.1.4 New Value Contribution
6.2 Structure, Management, And Funding Of Reorganized Debtor Under
The Debt Conversion Option
6.2.1 Structure Of Reorganized Debtor
6.2.2 New Management and Interim Operations Pending
Receipt of Gaming Approvals
6.2.3 Funding Of The Plan
6.3 Conveyancing And Related Obligations Of The AZC Affiliates
Under The Debt Conversion Option 6.3.1 Transfer Of Parking And
Pistol Pete's Parcel 6.3.2 Lease Of Buildings Covered By the
CHSC Leases 6.3.3 Completion Of 1993 Transfers And Removal Of
Encroachments 6.3.4 Purchase Option For Balance Of Shopping
Center 6.3.5 Limitations On Existing CHSC Liens 6.3.6 Specific
Performance Of Conveyancing Obligations
ARTICLE VII. OBJECTIONS TO CLAIMS
7.1 Bar Date
7.2 Objections to Claims
7.3 Disputed Claims/Distributions
ARTICLE VIII. MODIFICATION TO PLAN
8.1 Modification Prior to Confirmation
8.2 Modification Post-Confirmation
8.3 Other Modifications
ARTICLE IX. DISCHARGE
9.1 General Discharge
9.2 Injunction
ARTICLE X. GENERAL PROVISIONS
10.1 Additional Assurances
10.2 Amendments
10.3 Authority to Settle and Assign
10.4 Confirmation by Non-Acceptance Method 10.5 Confirmation Order 10.6
Construction 10.7 Continuing Jurisdiction 10.8 Disclosure Statements
10.9 Exculpation and Limitation of Liability 10.10 Extension of Payment
Dates 10.11 Final Decree 10.12 Final Satisfaction 10.13 Fractional
Dollars or Shares 10.14 Governing Law 10.15 Headings 10.16 Interest on
Claims 10.17 No Penalties or Expenses 10.18 Operative Documents 10.19
Payment of Statutory Fees 10.20 Payment Option 10.21 Prohibition
Against Prepayment Penalties 10.22 Reservation of Rights 10.23
Retention of Claims and Causes of Action 10.24 Revocation 10.25
Severability and Reformation 10.26 Successors and Assigns 10.27
Termination of Committees 10.28 Time 10.29 Unclaimed Property 10.30
Vesting 10.31 Voting of Claims
ARTICLE XI. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE
11.1 Conditions Precedent to the Effective Date
11.1.1 Regulatory Approvals Obtained
11.1.2 New Value Contribution Made
11.1.3 Confirmation Order Effective
================================================================================
ARTICLE 1.
----------
INTRODUCTION
------------
This Consensual Plan of Reorganization (the "Plan") is
proposed by the Debtor and Debtor-In-Possession in the above captioned case,
Arizona Charlie's, Inc., a Nevada Corporation (the "Debtor"), and by High River
Limited Partnership ("High River").1 The Plan is the product of a settlement
reached between the Debtor and High River, as set forth in the "Term Sheet
Agreement Between AZC (And Affiliates) And High River Limited Partnership" dated
June 16, 1998 (the "Settlement Term Sheet").2 The Plan represents an
amalgamation and melding of portions of the AZC Plan and the High River Plan
which have been accepted by creditors and parties in interest in the case. The
Plan is designed to restructure the financial obligations and business affairs
of the Debtor. The Plan contemplates two (2) scenarios: (i) the Financing
Option, under which the Debtor and its current principals will continue to own,
manage, and operate the Casino; or (ii) the Debt Conversion Option, under which
the ownership, management, and operation of the Casino will be transferred to
High River. Under either scenario, Allowed Claims are treated in accordance with
preferences expressed in the voting of Creditors for the Debtor's Plan and for
the High River Plan.
ARTICLE 2.
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DEFINITIONS
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For purposes of this Plan, and except as expressly provided
otherwise herein or unless the context otherwise requires, all of the defined
terms stated in Article II (which appear in the Plan as capitalized terms) will
have the meanings stated below. For purposes of this Plan and such defined
terms, the singular and plural uses of such defined terms and the conjunctive
and disjunctive uses thereof will be fungible and interchangeable (unless the
context otherwise requires); and the defined terms will be equally applicable to
masculine, feminine, and neuter forms of the terms defined. The defined terms
stated in Article II also are substantive terms of the Plan; and Article II will
be deemed incorporated throughout the rest of the Plan to apply the substantive
provisions included in the defined terms. The words "herein", "hereof",
"hereto", "hereunder", and others of similar import, refer to the Plan as a
whole and not to any particular section, subsection, or clause contained in the
Plan. The rules of construction set forth in Section 102 of the Bankruptcy Code
shall apply. In computing any period of time prescribed or allowed by the Plan,
the provisions of Bankruptcy Rule 9006(a) shall apply. Accordingly, the defined
terms are as follows:
2.1. "Administrative Claim" will refer to and mean any Claim
entitled to priority afforded by Sections 503(b) and 507(a) of the Bankruptcy
Code arising prior to the Effective Date, including, without limitation: (a)
every cost and expense of administration of the Reorganization Case, including,
without limitation, all actual and necessary post-petition expenses of
maintaining and preserving the Estate including post-petition taxes; (b) all
actual and necessary post-petition expenses of operating the Debtor's business;
(c) all Professional Charges approved by the Bankruptcy Court pursuant to
interim and final allowances in accordance with Bankruptcy Code ss.ss.330, 331,
and 503(b); (d) all fees and charges assessed against the Estate under Chapter
123 of Title 28, United States Code; and (e) all reclamation claims which have
been granted administrative expense priority pursuant to Bankruptcy Code ss.
546(c)(2).
2.2. "Allowed Claim" will refer to and mean (a) any
Administrative, Secured, Unsecured, Priority or other Claim against the Debtor
which: (i) was timely filed pursuant to an order of the Bankruptcy Court; (ii)
is deemed filed under Section 1111(a) of the Bankruptcy Code; or (iii) is filed
late with leave of the Bankruptcy Court or without objection by the Debtor or a
party in interest with standing within a time fixed by the Bankruptcy Court for
objecting to such late filing; (b) the Debtor or any other party in interest
with standing to object to a claim has not filed an objection thereto, which
objection must be filed within a time fixed by the Bankruptcy Court or the Plan,
or if an objection has been filed, the Claim has been allowed by a Final Order;
or (c) the Claim is allowed under this Plan.
2.3. "Appendix of Financing Documents" will refer to and mean
the "Appendix of Selected Financing Documents" relating to the AZC Notes and the
CQC Notes which was filed by the Debtor with the Bankruptcy Court on or about
November 24, 1997.
2.4. "Assigned Claims" will refer to and mean any and all
claims and causes of action to be assigned to the Reorganized Debtor from the
AZC Noteholders or the Estate against any third parties, including, without
limitation, any claims against one or more of the AZC Affiliates, arising under
or in any way connected with the issuance, sale, purchase or other disposition
of the AZC Notes or the conduct of the affairs of the Debtor or its
Reorganization Case.
2.5. "Avoidance Actions" will refer to and mean actions
brought by the Debtor or its representatives pursuant to Sections 541, 544, 547,
548, 549, 550, 553 of the Bankruptcy Code whenever commenced, including, but not
limited to, the action by the Debtor against the trustee under the CQC Indenture
which was commenced on the Petition Date through the filing of the "Complaint of
Arizona Charlie's, Inc.: (1) To Declare Obligations Under Certain Limited
Guaranty Discharged; And (2) Alternatively, to Avoid That Certain Limited
Guaranty As A Fraudulent Conveyance."
2.6. "AZC Affiliates" will refer to and mean parties related
to the Debtor who have had prepetition transactions with the Debtor, including,
but not limited to BGI, CQC, Sunset Coin, CHSC, and the BGI Stockholders as a
group.
2.7. "AZC Affiliates Unsecured Claims" will refer to and mean
the net amount of Unsecured Claims in the aggregate held by the AZC Affiliates
against the Debtor after offsetting all Unsecured Claims held in the aggregate
by the Debtor against the AZC Affiliates. Without limiting the generality of the
foregoing, the AZC Affiliates Unsecured Claims consist of the BGI Management Fee
Claim, the BGI Stockholders Claim, the Sunset Coin Claim, and other AZC
Affiliate Claims less the BGI Receivables and the Becker Receivables. According
to the Debtor's books and records, the AZC Affiliates Unsecured Claims amount to
(on a net and aggregate basis) approximately $7,000,000. High River contests the
validity and priority of the AZC Affiliates Unsecured Claim.
2.8. "AZC/CQC Claims" will refer to and mean any and all
claims of the Debtor or the AZC Affiliates against CQC, including, but not
limited to, Claims arising out of loans of approximately $2,500,000 made by the
Debtor to CQC.
2.9. "AZC Indenture" will refer to and mean the Indenture as
of November 15, 1993, between and among the Debtor, Sunset Coin, Charlie's Land
Company, and the Original AZC Indenture Trustee (IBJ Schroder Bank & Trust
Company as trustee, collateral agent, and transfer agent) executed in connection
with the issuance of the AZC Notes. A copy of the AZC Indenture is attached to
the Appendix of Financing Documents behind Tab 2.
2.10. "AZC Limited Guaranty" will refer to and mean the
limited guaranty issued by the Debtor under Article 10 of the CQC Indenture with
respect to the CQC Notes. The validity, amount, and extent of the AZC Limited
Guaranty is in dispute. The AZC Limited Guaranty is the subject of an Avoidance
Action commenced by the Debtor on the Petition Date.
2.11. "AZC Notes" will refer to and mean the 12% First
Mortgage Notes issued in the original amount of $55,000,000 on or about November
15, 1993. A sample form AZC Note is contained in the AZC Indenture.
2.12. "AZC Noteholders" will refer to and mean the
beneficial holders of the AZC Notes as of the Record Date.
2.13. "AZC Noteholders Collateral" will refer to and mean any
real property and personal property belonging to the Debtor which serves as
collateral for repayment of the AZC Notes.
2.14. "AZC Note Purchase Agreement" will refer to and mean the
Purchase Agreement dated November 15, 1993 which governs the purchase and sale
of the AZC Notes, the CQC Notes, and the BGI Warrants. A copy of the AZC Note
Purchase Agreement is attached to the Appendix of Financing Documents behind Tab
1.
2.15. "AZC Noteholders Secured Claim" will refer to
and mean the Allowed Claim of the AZC
Noteholders under Class 5 of this Plan.
2.16. "AZC Plan" will refer to and mean the "Debtor's Plan Of
Reorganization Dated February 17, 1998, as amended as of May 15, 1998".
2.17. "AZC Security Documents" will refer to an mean the
documents which give rise to the AZC Noteholders Collateral, including, but not
limited to, the Fee and Leasehold Deed of Trust, Assignment of Leases and
Subleases, Security Agreement and Fixture Filing dated as of November 15, 1993,
and executed by the Debtor and Charlie's Land Company in favor of Land Title of
Nevada as trustee for IBJ Schroder Bank & Trust Company, as collateral agent
under the AZC Indenture.
2.18. "Ballots" will refer to and mean the ballots which were
cast by the Creditors holding Claims in the Classes eligible to vote to accept
or reject the Plan.
2.19. "Bankruptcy Code" will refer to and mean Title 11 of the
United States Code,ss.ss.101, et seq., as it is in effect on the Confirmation
Date.
2.20. "Bankruptcy Court" will refer to and mean the United
States Bankruptcy Court for the District of Nevada, or such other court which
exercises jurisdiction over part or all of the Reorganization Case, including
the United States District Court for the District of Nevada if and to the extent
that the reference of part or all of the Reorganization Case is withdrawn.
2.21. "Bankruptcy Rules" will refer to and mean the Federal
Rules of Bankruptcy Procedure, promulgated under Title 28 of the United States
Code, ss.2075, and the Local Rules of Bankruptcy Procedure of the United States
Bankruptcy Court for the District of Nevada, as applicable from time to time
during the Reorganization Case.
2.22. "Becker Family" will refer to and mean members of the
Becker Family that directly or indirectly are involved in the ownership and
operation of the Debtor, including, Ernest A. Becker III, Ernest A.
Becker IV, Bruce F. Becker, and Barry W. Becker.
2.23. "Becker Receivables" will refer to and mean the
aggregate amount of money owed from members of the Becker Family to the Debtor.
According to the Debtor's books and records, the Becker Receivables amount to
$213,852 as of the Petition Date.
2.24. "BGI" will refer to and mean Becker Gaming, Inc., the
entity which owns 100% of the stock of the Debtor.
2.25. "BGI Management Agreement" will refer to and mean the
Management Agreement entered into as of May 31, 1994 between the Debtor and BGI
for the management and operation of the Casino. The BGI Management Agreement was
executed in conjunction with the issuance of the AZC Notes.
2.26. "BGI Management Fee Claim" will refer to and mean the
claim of BGI for unpaid management fees owing as of the Petition Date under the
BGI Management Agreement (as amended). According to the books and records of the
Debtor, the BGI Management Fee Claim amounts to $5,583,113 as of the Petition
Date. High River disputes the validity and priority of the BGI Management Fee
Claim.
2.27. "BGI Receivables" will refer to and mean the aggregate
amount of money owed from BGI to the Debtor. According to the Debtor's books and
records, the BGI Receivables amount to $7,217,110 as of the Petition Date.
2.28. "BGI Stockholders" will refer to and mean the persons
who own and hold stock interests in BGI, including Ernest A. Becker III (the
holder of 36.11% of the stock in BGI), Bruce F. Becker (the holder of 27.61% of
the stock in BGI), Ernest A. Becker IV (the holder of 15.47% of the stock in
BGI), Barry W. Becker (the holder of 15.47% of the stock in BGI), and Charlie's
Land Company (a Nevada general partnership owned by members of the Becker Family
and the holder of 5.34% of the stock in BGI).
2.29. "BGI Stockholders Claim" will refer to and mean the
Claim of the BGI Stockholders arising out of the loan of approximately
$5,000,000, plus accrued interest, to the Debtor in connection with the issuance
in 1993 of the AZC Notes. According to the books and records of the Debtor, the
BGI Stockholders Claim amounts to $5,275,000 as of the Petition Date. High River
disputes the validity and priority of the BGI Stockholders Claim.
2.30. "BGI Warrants" will refer to and mean 2,500,000 warrants
for the purchase of stock in BGI which were issued in connection with the
placement of the AZC Notes and the CQC Notes pursuant to the "Warrant Agreement
Between Becker Gaming, Inc. And IBJ Schroder Bank & Trust Company" dated as of
November 15, 1993.
2.31. "Business Day" will refer to and mean every day except
Saturdays, Sundays, and days on which the Bankruptcy Court is required by law to
be closed.
2.32. "Cash" will refer to and mean cash, cash equivalents,
bank deposits, and negotiable instruments payable on demand and supported by
readily available funds.
2.33. "Casino" will refer to and mean the real property and
personal property which comprises the Arizona Charlie's Hotel & Casino located
in Las Vegas, Nevada, and owned by the Debtor, along with the real property used
by the Debtor in the operations of the Casino.
2.34. "Chapter 11 Professionals" will refer to and mean the
Debtor's Professionals and other professionals which are or may be employed with
the Bankruptcy Court's approval at the expense of the Estate, pursuant to
Bankruptcy Code ss.ss.327(a), 327(e), or 1103(a).
2.35. "Claim" will refer to and mean "claim" as the
term is defined in Section 101(5) of the Bankruptcy Code.
2.36. "Class" will refer to and mean each of the
classifications of the Claims and the Equity Interests, which are described in
Article III of the Plan. Each subclass of a Class provided in this Plan will be
treated as a separate Class of the Plan for voting purposes and for all other
purposes.
2.37. "CHSC" will refer to and mean, the Charleston Heights
Shopping Center Partnership, one of the AZC Affiliates, and the owner of the
Shopping Center.
2.38. "CHSC Leases" will refer to and mean the real property
owned by CHSC and (x) leased to the Debtor pursuant to two real property leases
which relate to, inter alia, a portion of the Casino's employee and customer
parking, laundry facilities, administrative offices and repair shops which
expire by their terms on June 30, 1998; and (y) other oral agreements and
license for additional parking, including, without limitation, agreements
concerning the site commonly referred to as the "Pistol Pete's" parcel.
2.39. "Collateral" means any property owned by the
Debtor used to secure any financial obligation of the Debtor.
2.40. "Confirmation Date" will refer to and mean the
date on which the Confirmation Order is entered on the docket of the
Bankruptcy Court.
2.41. "Confirmation Hearing" will refer to and mean the
hearing regarding confirmation of the Plan conducted by the Bankruptcy Court
pursuant to Section 1128 of the Bankruptcy Code, as adjourned or continued from
time to time.
2.42. "Confirmation Order" will refer to and mean the written
order of the Bankruptcy Court which confirms the Plan pursuant to Section 1129
of the Bankruptcy Code.
2.43. "Court" The term "Court" is completely synonymous and
interchangeable with the term "Bankruptcy Court," which term is defined in a
preceding Section of this Article II.
2.44. "Creditor" will refer to and mean "creditor" as
defined in Section 101(10) of the Bankruptcy Code.
2.45. "Creditors' Committee" will refer to and mean the
Official Unsecured Creditors Committee appointed in the Reorganization Case by
the United States Trustee pursuant to Section 1102 of the Bankruptcy Code.
2.46. "Creditors' Committee Professionals" will refer to and
mean (i) the law firm of Shea & Carlyon, Ltd., legal counsel to the Creditors'
Committee.
2.47. "CQC" will refer to and mean Capitol Queen &
Casino, Inc., one of the AZC Affiliates.
2.48. "CQC Indenture" will refer to and mean the Indenture as
of November 15, 1993, between and among CQC, the Debtor, and IBJ Schroder Bank &
Trust Company (the "CQC Indenture Trustee") as the trustee, collateral agent,
and transfer agent in connection with the issuance of the CQC Notes.
2.49. "CQC Notes" will refer to and mean the 12% First
Mortgage Notes issued by CQC in the original amount of $40,000,000 on or about
November 15, 1993.
2.50. "CQC Noteholders" will refer to and mean the
beneficial holders of the CQC Notes as of the Record Date.
2.51. "CQC Noteholders Guaranty Claim" will refer to and mean
the Allowed Claim (if any) held by the CQC Noteholders against the Debtor under
the AZC Limited Guaranty.
2.52. "Debt Conversion Option" will refer to and mean the debt
conversion scenario which will become effective automatically if the Debtor or
the AZC Affiliates fail to exercise the Financing Option in a timely manner, or
the New Value Contribution is not made in a timely manner.
2.53. "Debtor" will refer to and mean Arizona Charlie's,
Inc., a Nevada Corporation, as debtor and debtor-in-possession in the
Reorganization Case.
2.54. "Debtor's Professionals" will refer to and mean: (i) the
law firm of Streich Lang, P.A., which is the Debtor's general bankruptcy
counsel; (ii) the law firm of James, Driggs & Walch, which is the Debtor's local
bankruptcy counsel; (iii) the accounting firm of Coopers & Lybrand; and (iv) any
and all other similar professionals which the Debtor has employed or may employ
to assist in the conduct of the Reorganization Case or to provide professional
services for a specified purpose, all in accordance with Sections 327(a) and
327(e) of the Bankruptcy Code.
2.55. "Disclosure Statements" will refer to and mean
collectively the "Joint Disclosure Statement Accompanying Competing Plans Of
Reorganization Proposes By: (1) The Debtor; (2) High River Limited Partnership;
And (3) Station Casinos, Inc. And Fertitta Enterprises" dated May 8, 1998, as
amended as of May 15, 1998(the "Joint Disclosure Statement"); the "Supplemental
Disclosure Statement Accompanying Debtor's Plan Of Reorganization, As Amended"
dated February 17, 1998, as amended as of May 15, 1998 (the "Debtor's Disclosure
Supplement"); the "Supplemental Disclosure Statement Accompanying Plan Of
Reorganization Proposed By High River Limited Partnership" dated May 8, 1998, as
amended May 15, 1998 (the "High River Disclosure Supplement"); and the
"Supplemental Disclosure Statement To Accompany First Amended Plan Of
Reorganization For Arizona Charlie's, Inc. Jointly Proposed By Fertitta
Enterprises And Station Casinos, Inc. (Dated May 21, 1998)" (the "Fertitta
Disclosure Supplement").
2.56. "Disputed Claim" will refer to and mean every
Claim which is not an Allowed Claim.
2.57. "Effective Date" will refer to and mean, the first
Business Day after the last of the following dates and events have occurred,
unless and to the extent that any condition or requirement for the occurrence of
the Effective Date has been waived by the Debtor with the consent of High
River:3 (a) the date which is eleven (11) days after the Confirmation Order is
entered without the imposition of any stay; and (b) satisfaction of all
conditions precedent to the effectiveness of the Plan set forth in Article XI
below. Without limiting the generality of the foregoing, the Effective Date will
not occur under the Debt Conversion Option unless and until all conditions to
the Effective Date, including the approvals from the Gaming Authorities, are
received by the holders of the New Common Stock. Except where performance
earlier than the Effective Date is expressly required by the Plan or where it is
lawful and expressly permitted by the Plan to perform after the Effective Date,
performance under the Plan will be due on the Effective Date. The Debtor or the
Reorganized Debtor (with the consent of High River) will have the right to
render any or all of the performance under this Plan prior to what otherwise
would be the Effective Date if the Debtor or the Reorganized Debtor (with the
consent of High River) deem it appropriate to do so, including, but not limited
to, the right to render performance under any circumstances which would moot any
appeal, review, or other challenge of any kind to the Confirmation Order if the
Confirmation Order is not stayed pending such appeal, review, or other
challenge.
2.58. "Effective Date Cash" will refer to and mean all Cash
held by the Reorganized Debtor on the Effective Date prior to the distribution
or reservation of any amounts due under the Plan.
2.59. "Equity Interests" will refer to and mean the equity
interests held by the holders of record as of the Confirmation Date of all of
the Debtor's common stock.
2.60. "Estate" will refer to and mean the Debtor's estate
created in the Reorganization Case pursuant to Section 541 of the Bankruptcy
Code.
2.61. "Executory Contract" will refer to and mean every
unexpired lease or executory contract which is subject to being assumed or
rejected by the Debtor under Section 365 of the Bankruptcy Code.
2.62. "Existing CHSC Liens" will refer to and mean the liens
and encumbrances as of June 23, 1998 in the amount of $3,475,746.08 payable to
Midland Loan Servicing (the "Midland Lien") and in the amount of $583,069.93
payable to Silver State Bank (the "Silver Lien") which currently attach to the
Shopping Center. The Midland Lien currently calls for equal monthly payments of
$52,864.12 and carries a maturity of June 1, 2009. The Silver Lien calls for
equal monthly payments of $5,308.38 and carries a maturity of April 1, 2003.
2.63. "Fertitta" will refer to and mean collectively Station
Casinos, Inc. and Fertitta Enterprises, acting for and on behalf of Frank J.
Fertitta and Victoria K. Fertitta, as Trustees of the Fertitta Trust, the holder
of approximately $2,500,000 of the AZC Notes.
2.64. "Fertitta Plan" will refer to and mean the "First
Amended Plan Of Reorganization For Arizona Charlie's, Inc. Jointly Proposed By
Fertitta Enterprises And Station Casinos, Inc. (Dated May 21, 1998)" which was
filed by Fertitta.
2.65. "Filed" will refer to and mean filed with the
Bankruptcy Court in the Reorganization Case.
2.66. "Final Order" will refer to and mean an order or
judgment entered on the docket by the Clerk of the Bankruptcy Court or any other
court exercising jurisdiction over the subject matter and the parties (a) which
has not been reversed, stayed, modified, or amended; (b) as to which no appeal,
certiorari proceeding, reargument or other review has been requested or is
pending; and (c) as to which the time for filing a notice of appeal, a petition
for certiorari, or request for reargument or further review or rehearing shall
have expired.
2.67. "Financing Commitment" will refer to and mean the
commitment issued on or about March 2, 1998 (as amended) by United Healthcare
Financial Services, LLC ("UHFS") to provide the Debtor with up to $65,000,000 in
financing to assist in the funding of the Plan and to provide approximately
$20,500,000 in financing for the planned expansion of the Casino. A copy of the
Financing Commitment is attached to the Disclosure Statement as Exhibit "K".
2.68. "Financing Option" will refer to and mean the scenario
under which the Debtor has cash available by July 31, 1998 sufficient to make
the cash payment of $61,600,000 to the Class 5 AZC Noteholders on or before
August 7, 1998, together with the cash payment portion of the New Value
Contribution by July 24, 1998, and therby eliminate the Debt Conversion Option.
2.69. "Gaming Authorities" will refer to and mean the Gaming
Control Board, the Gaming Commission, and any other governmental entity or
agency that has gaming regulatory authority over the Debtor.
2.70. "Gaming Control Board" will refer to and mean the
State of Nevada Gaming Control Board established pursuant to Nev. Rev. Stat.
ss.463.010, et seq., as amended.
2.71. "Gaming Commission" will refer to and mean the
State of Nevada Gaming Commission.
2.72. "Gaming Equipment Secured Claims" will refer to and mean
Secured Claims held by Creditors who provided gaming equipment to the Debtor
through installment sales contracts or through some other form of secured
transactions. According to the Debtor's books and records, Gaming Equipment
Secured Claims are held by A.C. Coin & Slots, Casino Data Systems, International
Gaming Technology, Newcourt Financial, and VLC of Nevada.
2.73. "High River Plan" will refer to and mean the "Plan Of
Reorganization Proposed By High River Limited Partnership Dated May 8, 1998, as
Amended as of May 15, 1998".
2.74. "New Common Stock" will refer to and mean the authorized
shares of common stock to be issued under the Debt Conversion Option, par value
of $.01 per share.
2.75. "New Value Contribution" will refer to and mean, the New
Value Contribution of $1,500,000 in cash and the Allowed AZC Affiliates
Unsecured Claims which will be contributed by the AZC Affiliates to the Debtor
for the funding of the Plan. Under the Financing Option, the cash portion of the
New Value Contribution ($1,500,000) will be used: (i) first, to pay the fees and
expenses incurred by High River in connection with the case (in the amount of
$1,200,000); and (ii) thereafter, to pay the reasonable fees and expenses
recoverable by the trustees under the AZC Indenture and the CQC Indenture as
allowed by the Bankruptcy Court.4 Under the Debt Conversion Option, the cash
portion of the New Value Contribution ($1,500,000) will be paid to High River.
The New Value Contribution will be made by July 24, 1998. Notwithstanding any
provision in this Plan to the contrary, the Debt Conversion Option will become
effective immediately, in the event that the New Value Contribution is not made
in a timely manner.
2.76. "Old Common Stock" will refer to and mean the shares of
common stock,$.01 par value per share, of the Debtor issued and outstanding
immediately prior to the Effective Date, and all options, warrants and similar
rights, whether contractual or otherwise, to acquire such shares of common
stock, and all shares or other securities convertible or otherwise exchangeable
into such shares of common stock.
2.77. "Operating Order" will refer to and mean the "Stipulated
Order Authorizing Debtor's Use Of Operating Revenues To Pay For Necessary
Operating And Emergency Expenses" which was entered by the Bankruptcy Court on
December 2, 1997. The Operating Order will terminate on the Effective Date of
this Plan. From and after the Effective Date of this Plan, the Debtor will be
free to use the revenues from the Casino to pay for any and all expenses which
the Debtor in its business judgment incurs, and to make the payments called for
under this Plan. A copy of the Operating Order is attached to the Disclosure
Statement as Exhibit "J".
2.78. "Other Unsecured Claims" will refer to and mean any
Unsecured Claims against the Debtor which are not an Administrative Claim, a
Priority Unsecured Claim, a Priority Unsecured Tax Claim, a Trade Unsecured
Claim, an AZC Noteholders Deficiency Claim, a CQC Noteholders Guaranty Claim, or
an AZC Affiliates Unsecured Claim.
2.79. "Person" will refer to and have the same meaning
as set forth in Section 101(41) of the Code.
2.80. "Petition Date" will refer to and mean November 14,
1997, the date on which the voluntary Chapter 11 petition commencing the
Reorganization Case was filed.
2.81. "Plan" will refer to and mean this "Consensual Plan Of
Reorganization Proposed By The Debtor And By High River" and every modification,
amendment, restatement, and supplement thereof, if any, filed by the Debtor and
High River, from time to time.
2.82. "Plan Payments" will refer to and mean the funds to be
advanced by High River on the Effective Date to the Reorganized Debtor in an
amount sufficient to fund any shortfall in Cash payments required to be made
under the Debt Conversion Option.
2.83. "Priority Tax Claim" will refer to and mean every Claim
of the kind entitled to priority under Section 507(a)(8) of the Bankruptcy Code.
2.84. "Priority Unsecured Claim" will refer to and mean every
Unsecured Claim or portion thereof which is not an Administrative Claim or a
Priority Tax Claim, and which is entitled to a priority under Section 507 of the
Bankruptcy Code.
2.85. "Pro Rata Share" will refer to and mean the ratio of the
amount of an Allowed Claim in a particular Class to the aggregate amount of all
Allowed Claims in such Class.
2.86. "Professional Charges" will refer to and mean the
Allowed interim and final professional fees and expenses charged by the Chapter
11 Professionals and allowed by the Bankruptcy Court pursuant to Sections 330
and 331 of the Bankruptcy Code.
2.87. "Record Date" will refer to and mean the Confirmation
Date, or such other date established by the Bankruptcy Court relative to
determining the AZC Noteholders (and any other security holders) who are
entitled to receive distributions under the Plan.
2.88. "Reorganization Case" will refer to and mean the
Debtor's bankruptcy case under Chapter 11 of the Bankruptcy Code commenced on
the Petition Date resulting in the above-captioned pending case.
2.89. "Reorganized Articles" will refer to and mean the
Restated Articles of Incorporation of the Reorganized Debtor which will become
operative in the event of the Debt Conversion Option.
2.90. "Reorganized By-laws" will refer to and mean the
Restated By-laws of the Reorganized Debtor which will become operative in the
event of the Debt Conversion Option.
2.91. "Reorganized Debtor" will refer to and mean the Debtor,
as reorganized from and after the Effective Date. Unless otherwise expressly
stated or the context otherwise requires, alternative references to the Debtor
or the Reorganized Debtor, or either of them, throughout various provisions of
the Plan are intended to anticipate whether an event may occur before or after
the Effective Date.
2.92. "Schedules" will refer to and mean the schedules of
assets and liabilities and the statement of financial affairs filed by the
Debtor pursuant to Section 521 of the Bankruptcy Code, as such schedules and
statement are amended, modified, restated or supplemented hereafter from time to
time (with the consent of High River).
2.93. "Secured Claim" will refer to and mean every Claim or
portion thereof held by any Person, including, without limitation, an Affiliate
or judgment creditor of the Debtor, to the extent such Claim constitutes a
Secured Claim under Sections 506(a) or 1111(b) of the Bankruptcy Code.
2.94. "Secured Creditor" will refer to and mean every
Creditor which holds a Secured Claim in the Reorganization Case.
2.95. "Secured Tax Claims" will refer to and mean all Claims
of any state or local government unit which is secured by property of the Estate
by operation of applicable non-bankruptcy laws, including, but not limited to,
Secured Claims for unpaid real property taxes, unpaid personal property taxes,
or unpaid sales taxes.
2.96. "SEC" will refer to and mean the Securities
Exchange Commission.
2.97. "Shopping Center" will refer to and mean the
shopping center owned by CHSC, a portion of which is leased to the Debtor.
2.98. "Shopping Center Purchase Option" will refer to and mean
the ten (10) year option granted to High River to purchase the Shopping Center
(exclusive of the portion of the Shopping Center covered by the CHSC Leases
which have already been conveyed) under the Debt Conversion Option. The price of
the Shopping Center Purchase Option is $7,000,000 net of and subject to the
Existing CHSC Liens if exercised within the first year after the Confirmation
Date, and $7,000,000 net of and subject to the Existing CHSC Liens plus the
amount of any cumulative increase in the Consumer Price Index if exercised in
the second to tenth years after the Confirmation Date. The Shopping Center
Purchase Option expires on the eleventh anniversary of the Confirmation Date.
2.99. "Sunset Coin" will refer to and mean Sunset Coin,
Inc., one of the AZC Affiliates.
2.100. "Sunset Coin Claim" will refer to and mean the total
amount of money owing from the Debtor to Sunset Coin. According to the Debtor's
books and records, the Sunset Coin Claim amounts to at least $3,525,000 as of
the Petition Date. High River disputes the validity and priority the Sunset Coin
Claim.
2.101. "Sunset Coin Limited Guaranty" will refer to and mean
the limited guaranty issued by Sunset Coin under Section 10.01 of the AZC
Indenture with respect to the AZC Notes. Based on the Form 10Q for the period
ending September 30, 1997 which was filed by BGI with the SEC, Sunset Coin has a
negative net worth when the receivable owing from the Debtor is excluded from
Sunset Coin's balance sheet. As a consequence, the Debtor believes that the
Sunset Coin Limited Guaranty has little or no present value (and perhaps never
had any value) for the AZC Noteholders. High River disputes the Debtor's belief
as to the scope and value of the Sunset Coin Limited Guaranty.
2.102. "Trade Unsecured Claims" will refer to and mean the
Unsecured Claims of those vendors of goods and services to the Debtor whose
ongoing business relationship with the Debtor is essential to the efficient and
effective operation of the Casino following the Confirmation Date. A list of the
Trade Unsecured Claims is attached to the Disclosure Statement as Exhibit "F".
2.103. "Unsecured Claim" will refer to and mean every Claim
(and every portion of a Claim) against the Debtor, regardless of priority, which
is not a Secured Claim.
2.104. "Unsecured Creditor" will refer to and mean
every Creditor which holds an Unsecured Claim in the Reorganization Case.
2.105. "Working Capital Reserve" will refer to and mean the
funds to be advanced on the Effective Date of the Debt Conversion Option, from
time to time upon the occurrence of the Debt Conversion Option, by High River to
the Reorganized Debtor on market terms, in an amount sufficient to fund (a) the
Reorganized Debtor's capital expenditures, (b) general working capital needs of
the Reorganized Debtor.
ARTICLE 3.
----------
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
---------------------------------------------
All Claims and the Equity Interests are classified under the
Plan as hereafter stated in Article III. As of the Confirmation Hearing, any
Class of Claims which does not contain any Creditor's Claim will be deemed
deleted automatically from the Plan.
3.1. Class 1: Allowed Administrative Claims . The Class 1
Claims will be all Claims which are Allowed Administrative Claims including
Professional Charges, all Administrative Tax Claims, and all Claims which have
been filed pursuant to Section 503(b) of the Code to which an order of the
Bankruptcy Court has been entered allowing such Claims.
3.2. Class 2: Allowed Priority Unsecured Claims . The Class 2
Claims will be all Allowed Claims which are Priority Unsecured Claims, except
Class 1 Administrative Claims and Priority Unsecured Tax Claims designated in
Class 4 hereof.
3.3. Class 3: Allowed Secured Tax Claims . The Class
3 Claims will be all Allowed Claims which are prepetition Secured Tax Claims.
3.4. Class 4: Allowed Priority Unsecured Tax Claims.
The Class 4 Claims will be all Allowed
Claims which are Priority Tax Claims.
3.5. Class 5: Allowed Secured Claims of the AZC Noteholders .
The Class 5 Claims will be all Allowed Secured Claims of the AZC Noteholders.
3.6. Class 6: Allowed Gaming Equipment Secured Claims . The
Class 6 Claims will be all Allowed Claims which are Gaming Equipment Secured
Claims. Each Gaming Equipment Secured Claim in Class 6 will constitute and
occupy a separate class for all purposes under the Plan (i.e., each Class 6
Gaming Equipment Secured Claim will constitute and occupy a separate class for
purposes of voting on the Plan, for purposes of acceptances of the Plan, and for
purposes of treatment under the Plan).
3.7. Class 7: Allowed Other Secured Claims . The Class 7
Claims will be Allowed Secured Claims. As in Class 6, each Secured Class 7
Secured Claim will constitute and occupy a separate class for all purposes under
the Plan.
3.8. Class 8:(Intentionally Omitted) . Unless modified
pursuant to ss.1127 of the Bankruptcy Code to provide otherwise, there will be
no Class 8 Claims under the Plan.
3.9. Class 9: Allowed Trade Unsecured Claims .
The Class 9 Claims will be all Unsecured Claims which are Trade Unsecured
Claims.
3.10. Class 10:(Intentionally Omitted) . Unless modified
pursuant to ss.1127 of the Bankruptcy Code to provide otherwise, there will be
no Class 10 Claims under the Plan.
3.11. Class 11: Allowed Other Unsecured Claims . The Class 11
Claims will be all Allowed Claims which are Other Unsecured Claims. As with
Classes 6 and 7, each Class 11 Other Unsecured Claim will constitute and occupy
a separate class for all purposes under the Plan.
3.12. Class 12: Allowed AZC Affiliates Unsecured
Claims . The Class 12 Claims will be all Allowed AZC Affiliates Unsecured
Claims.
3.13. Class 13: Allowed CQC Noteholders Guaranty
Claim . The Class 13 Claims will be the Allowed CQC Noteholders Guaranty
Claim.
3.14. Class 14: Allowed Equity Interests . Class 14
will be all Allowed Equity Interests in the Debtor.
ARTICLE 4.
----------
TREATMENT OF CLASSES OF CLAIMS UNDER THE PLAN
---------------------------------------------
4.1. Treatment of Class 1 (Administrative Claims) . Every
Creditor holding a Class 1 Administrative Claim will be paid by the Reorganized
Debtor: (a) fully and in Cash on the Effective Date if the Claim is then an
Allowed Claim; (b) fully and in Cash when and if the Claim becomes an Allowed
Claim after the Effective Date; (c) as otherwise agreed in writing by the
Creditor holding the Allowed Claim; or (d) as ordered by the Bankruptcy Court.
Class One Administrative Claims are unimpaired.
4.2. Treatment of Class 2 (Priority Unsecured Claims) . Every
Creditor holding a Class 2 Priority Unsecured Claim will be paid by the
Reorganized Debtor: (a) fully and in Cash on the Effective Date if the Claim is
then an Allowed Claim; (b) fully and in Cash when and if the Claim becomes an
Allowed Claim after the Effective Date; (c) as otherwise agreed in writing by
the Creditor holding the Allowed Claim; or (d) as ordered by the Bankruptcy
Court. Class Two Priority Unsecured Claims are unimpaired.
4.3. Treatment of Class 3 Claims (Secured Tax Claims) . All
Class 3 Claims, as and when they are Allowed Claims, will receive payments equal
to the allowed amount of their claims, with interest at the rate of 8% per
annum, amortized over the period from the Effective Date through the date which
is five (5) years from the Effective Date. Payments on the allowed Class 3
Secured Tax Claims will be made in equal, semi-annual installments commencing on
the first day of the sixth month following the Effective Date. All unpaid
principal and interest owing in respect of the Class 3 Secured Tax Claims will
be due and payable in full on the date which is five (5) years from the
Effective Date. The Class 3 Secured Tax Claims are impaired.
4.4. Treatment of Class 4 (Priority Tax Claims) . Every
Creditor holding a Class 4 Priority Tax Claim, as and when it is an Allowed
Claim, will be paid by the Reorganized Debtor: (i) in full and in Cash on the
later of the Effective Date or the date upon which such Claim becomes an Allowed
Claim; or, at the election of the Reorganized Debtor, (ii) in equal quarterly
installments of principal and interest over a period commencing at the end of
the first calendar quarter after the Effective Date, and continuing at the end
of each calendar quarter thereafter until the date that is six (6) years after
the assessment date with respect to such Allowed Priority Tax Claim, with
interest fixed at 8% per annum or at such other rate which the Bankruptcy Court
determines is an appropriate rate of interest for the holders of Allowed
Priority Tax Claims. Class 4 Priority Tax Claims are unimpaired.
4.5. Treatment of Class 5 (AZC Noteholders Secured Claim) .
The Class 5 AZC Noteholders Secured Claim, as and when it is an Allowed Claim,
will be treated as follows:
4.5.1 Financing Option . In the event that the Debtor
performs under the Financing Option, on or before August 7, 1998 at 5:00 p.m.
PST, each of the AZC Noteholders as of the Record Date, through a payment made
to the trustee under the AZC Indenture, will receive its pro rata share of a
$61,600,000 cash payment along with its share of the New Value Contribution as
provided in ss.2.75 above. The Debtor shall on the same date pay to High River
its share of the cash portion of the New Value Contribution as provided in
ss.2.75 above. These payments shall be in full satisfaction of all claims
arising under the AZC Notes, the AZC Indenture, the AZC Security Documents, and
related documents. The Debtor will make the $61,600,000 cash payment along with
the transfer of a portion of the New Value Contribution provided under ss.2.75
above to the trustee under the AZC Indenture, who will be responsible for
dispersing to the AZC Noteholders their respective pro rata shares of the
payment. In exchange for the $61,600,000 cash payment and the transfer of the
portion of the New Value Contribution provided in ss. 2.75 above to the trustee
of the AZC Indenture for disbursement to the AZC Noteholders, the AZC Notes will
be canceled automatically without the need to deliver the canceled AZC Notes to
the Debtor or to the Reorganized Debtor, and the AZC Security Documents and the
AZC Noteholders Collateral will be released, reconveyed, and otherwise
extinguished automatically without the need to deliver formal releases,
reconveyances, or other such devices, provided however, that the trustee under
the AZC Indenture is authorized and directed to execute such documents and to
perform such other acts as may be necessary to cancel the AZC Notes and to
release and extinguish the AZC Noteholders Collateral. In addition, the BGI
Warrants and the Assigned Claims will be transferred and assigned to the
Reorganized Debtor, and will be extinguished as of the Effective Date. The Class
5 AZC Noteholders Secured Claims are impaired under the Financing Option.
4.5.2 Debt Conversion Option . As soon thereafter as
practical upon a failure of the
Debtor to perform under the Financing Option, the AZC Noteholders as of the
Record Date will receive from High River a cash payment of $960 per $1,000 of
aggregate principal amount of the AZC Notes owned; provided however, that in
consideration of its funding of the Plan, High River will receive 100% of the
New Common Stock. In addition, High River will receive at the same time the
$1,500,000 cash portion of the New Value Contribution. High River will make the
cash payment to the trustee under the AZC Indenture, who will be responsible for
dispersing to the AZC Noteholders their respective pro rata shares of the
payment. In exchange for the cash payments and the transfer of the New Common
Stock to AZC Noteholders and High River as the case may be, the AZC Notes will
be canceled automatically without the need to deliver the canceled AZC Notes to
the Debtor or to the Reorganized Debtor, and the AZC Security Documents and the
AZC Noteholders Collateral will be released, reconveyed, and otherwise
extinguished automatically without the need to deliver formal releases,
reconveyances, or other such devices, provided however, that the trustee under
the AZC Indenture is authorized and directed to execute such documents and to
perform such other acts as may be necessary to cancel the AZC Notes and to
release and extinguish the AZC Noteholders Collateral. In addition, the BGI
Warrants and the Assigned Claims will be assigned to the Reorganized Debtor and
will be extinguished as of the Effective Date, provided that, if the AZC
Affiliates fail to complete the transfers and other performance provided in
ss.6.3 below in a timely fashion, neither the BGI Warrants nor the Assigned
Claims will be extinguished. The Class 5 AZC Noteholders Secured Claims are
impaired under the Financing Option.
4.6. Treatment of Class 6 (Gaming Equipment Secured Claims) .
Under either the Financing Option or the Debt Conversion
Option, each Class 6 Gaming Equipment Secured Claim, as and when it is an
Allowed Claim, will be paid as follows: (a) on the Effective Date, the Debtor
will bring current all post-petition payments owing to the holders of the Gaming
Equipment Secured Claims under their respective contracts; (b) from and after
the Effective Date, the Debtor will pay the holders of the Gaming Equipment
Secured Claims according to the terms of their respective contracts; and (c) the
Debtor will pay any prepetition arrearages along with recoverable costs and
expenses (including reasonable attorneys' fees) owing to the holders of the
Gaming Equipment Secured Claims in six (6) equal monthly installments of
principal and interest at the rate of 8% per annum, beginning on the first day
of the first month following the Effective Date. The holders of the Gaming
Equipment Secured Claims will retain any liens that they held on property of the
Debtor prior to the Petition Date as security for repayment of the Gaming
Equipment Secured Claims. In addition, confirmation of the Plan will not
constitute a discharge of any claims, rights, or causes of action that the Class
6 Gaming Equipment Secured Creditors may have against non-debtor third parties.
The Class 6 Gaming Equipment Secured Claims are impaired under the Plan.
4.7. Treatment of Class 7 (Other Secured Claims) . The Other
Secured Claims (including any and all subclasses of Other Secured Claims), as
and when they are Allowed Claims, will be paid as follows under either the
Financing Option or the Debt Conversion Option: (a) on the Effective Date, the
Debtor will bring current all post-petition payments owing to the holders of the
Other Secured Claims under their respective contracts; (b) from and after the
Effective Date, the Debtor will pay the holders of the Other Secured Claims
according to the terms of their respective contracts; and (c) the Debtor will
pay any prepetition arrearages owing to the holders of the Other Secured Claims
in six (6) equal monthly installments of principal and interest at the rate of
8% per annum, beginning on the first day of the first month following the
Effective Date. The holders of the Other Secured Claims will retain any liens
that they held on property of the Debtor prior to the Petition Date as security
for repayment of the Other Secured Claims. The Class 7 Other Secured Claims are
impaired.
4.8. Treatment of Class 8 (Intentionally Omitted) . Unless
modified pursuant to ss.1127 of the Bankruptcy Code, Class 8 under the Debtor's
Plan will be unoccupied.
4.9. Treatment of 9 (Trade Unsecured Claims) . The Trade
Unsecured Claims, as and when they are Allowed Claims, will be paid as follows:
The holder of a Trade Unsecured Claim will be paid the amount equal to 100% of
its Allowed Claim on the date which is eleven (11) days after the Confirmation
Date. The Class 9 Trade Unsecured Claims are impaired under the Plan.
4.10. Treatment of Class 10 (Intentionally Omitted) . Unless
modified pursuant to ss. 1127 of the Bankruptcy Code, Class 10 under the Plan
will be unoccupied.
4.11 Treatment of Class 11 (Allowed Other Unsecured Claims) .
The Class 11 Other Unsecured Claims, as and when they are Allowed Claims, will
be paid as follows:
4.11.1 Payment Generally. Except as stated below
in subsection 4.11.3, the holder of a
Class 11 Other Unsecured Claim will be paid the amount equal to 100% of its
Allowed Claim on the date which is eleven (11) days after the Confirmation Date.
4.11.2 Limitation on Payments to Personal Injury
Claimants . Notwithstanding subsections
4.11.1 and 4.11.2 above, payments to certain holders of Class 11 Other Unsecured
Claims will be limited as follows: (a) with respect to any Class 11 Other
Unsecured Claim that is a personal injury claim related to a motor vehicle
accident, the payment will be the lesser of the amount of the Allowed Claim, or
$2,500; and (b) with respect to any Class 11 Other Unsecured Claim that is a
personal injury claim not related to a motor vehicle accident, the payment will
be the lesser of the amount of the Allowed Claim, or $25,000. The holders of the
Class 11 Other Unsecured Claims that are personal injury claims may recover any
balance owed from the Debtor's insurance providers.
4.11.3 Reservation of Personal Injury Claimants'
Right to Recover Insurance Proceeds .
Nothing in this Section 4.11 shall limit or prevent in any way the ability of
the holders of Class 11 Other Unsecured Claims from pursuing any and all claims
they may have with respect to the Debtor's insurance providers.
4.12 Treatment of Class 12 (AZC Affiliates Unsecured Claims) .
The holders of the AZC Affiliates Unsecured Claims will not receive any property
or distributions on account of their Allowed Claims. Instead, the holders of the
AZC Affiliates Unsecured Claims will contribute their Allowed Claims to the
Debtor as part of the New Value Contribution under both the Financing Option and
the Debt Conversion Option. The Class 12 AZC Affiliates Unsecured Claims are
impaired.
4.13 Treatment of Class 13 (CQC Noteholders Guaranty Claims) .
The Class 13 CQC Noteholders Guaranty Claims, as and when they are Allowed
Claims, will be paid as follows under both the Financing Option and the Debt
Conversion Option: On the Effective Date, or as soon thereafter as possible, and
in full satisfaction and settlement of the CQC Noteholders Guaranty Claims, each
of the holders of the CQC Noteholders Guaranty Claims as of the Record Date will
receive its Pro Rata share of $1,500,000, the portion of the New Value
Contribution provided in ss. 2.75 under the Financing Option, and the benefit of
the waiver of the AZC/CQC Claims by the Debtor and the AZC Affiliates. The
Debtor will make the $1,500,000 cash payment and will transmit the portion of
the New Value Contribution provided in ss. 2.75 under the Financing Option to
the trustee under the CQC Indenture, who will be responsible for dispersing to
the CQC Noteholders their respective pro rata shares of the payments. On the
Effective Date, the AZC Limited Guaranty will be released automatically to the
Reorganized Debtor, and the AZC Limited Guaranty will be discharged, canceled,
and extinguished in exchange for the $1,500,000 cash payment, the portion of the
New Value Contribution provided in ss. 2.75 under the Financing Option, and the
waiver of the AZC/CQC Claims by the Debtor and the AZC Affiliates. The Class 13
CQC Noteholders Guaranty Claims are impaired under the Plan.
4.14 Class 14: (Equity Interests) . The holder of the Equity
Interests in the Debtor (BGI) will not receive any property or distributions on
account of its Equity Interests under the Plan. BGI, along with Sunset Coin,
will make the New Value Contribution to fund the Plan. Under the Financing
Option, and in exchange for the New Value Contribution, BGI will retain its
Equity Interests and will retain all of the Old Common Stock in the Debtor.
Under the Debt Conversion Option, the Old Common Stock and BGI's Equity
Interests in the Debtor will be canceled. The Class 14 Equity Interests are
impaired under both the Financing Option and the Debt Conversion Option.
ARTICLE 5.
----------
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
----------------------------------------
5.1. Assumption of Certain Executory Contracts . The Executory
Contracts of the Debtor listed in Exhibit "B" to the Debtor's Supplemental
Disclosure shall be assumed upon the Confirmation Date of the Plan pursuant to
Bankruptcy Code ss.365.
5.2. Rejection of Other Executory Contracts . Any and all
Executory Contracts of the Debtor that are not expressly assumed pursuant to
this Plan or which have not been otherwise assumed by the Debtor in the
Reorganization Case will be deemed rejected as of the Confirmation Date pursuant
to Bankruptcy Code ss.365.
5.3. Rejection Claims Bar Date . Every Claim asserted by a
Creditor arising from the rejection of an Executory Contract pursuant to the
Plan must be filed with the Bankruptcy Court no later than the first Business
Day which is thirty (30) days after the Confirmation Date. Every such Claim
which is timely filed, as and when it becomes an Allowed Claim, will be treated
under Class 11 of the Plan. Every rejection Claim which is not timely filed by
the deadline stated above will be barred and discharged, and the Creditor
holding the Claim will not receive or be entitled to any distribution under the
Plan on account of such Claim.
5.4. Vesting . All Executory Contracts which are assumed will
be vested in the Reorganized Debtor as of the Effective Date.
ARTICLE 6.
----------
MEANS FOR IMPLEMENTATION OF PLAN
--------------------------------
6.1 Structure, Management, And Funding Of Reorganized Debtor
Under The Financing Option . Under the Financing Option, the Reorganized Debtor
will be structured, managed, and funded as follows:
6.1..1 Structure Of Reorganized Debtor . The
Reorganized Debtor will continue in business
as a Nevada closely held corporation, and will continue to be owned by BGI. The
Debtor will be managed by the individuals identified below in Section 6.1.2. See
also Section V(B) of the Debtor's Disclosure Supplement. From and after the
Effective Date, the Reorganized Debtor may enter into operating agreements,
vendor agreements, management agreements, financing agreements, indemnity
agreements, stock purchase agreements, employment contracts, stock option
agreements, severance agreements and any other necessary or desirable contracts,
agreements, or arrangements without the need for any Bankruptcy Court approval.
6.1.2 Officers and Management of the Reorganized
Debtor . The following individuals
will serve as the directors, officers, and managers of the Reorganized Debtor:
Bruce F. Becker, Chairman and Director
Ernest A. Becker, III, Treasurer and Director
Ernest A. Becker, IV, Vice President and Director
Barry W. Becker, Secretary and Director
W. Bucky Howard, Chief Operating Officer
Jerry Griffis, Chief Financial Officer
Gerald C. Heetland, General Counsel
Paul Tomba, Director of Food and Beverage
Ron Lurie, Director of Marketing
Don Joshua, Director of Slot Operations
6.1.3 Funding of the Plan . Payments under the
Plan which are due from the Reorganized
Debtor on the Effective Date will be funded from the Effective Date Cash, a
portion of the cash portion the New Value Contribution from the AZC Affiliates,
and funding from UHFS under the Financing Commitment. The funds necessary to
ensure continuing performance under the Plan after the Effective Date will come
from excess Effective Date Cash, and from revenues of the Reorganized Debtor's
operations, including revenues generated by the Casino. If required, the
Reorganized Debtor may seek additional financing from or additional equity
contributions from third party sources or from the AZC Affiliates.
6.1.4 New Value Contribution . The AZC
Affiliates will deliver the New Value
Contribution to the Debtor by July 24, 1998, which amount shall be segregated by
the Debtor in a separate account. The failure to make the New Value Contribution
by July 24, 1998 triggers the Debt Conversion Option under the Plan, and will
result in the joint and several obligation of each of the AZC Affiliates to pay
to High River $1,750,000 in cash.
6.2 Structure, Management, And Funding Of Reorganized Debtor
Under The Debt Conversion Option . Under the Debt Conversion Option, the
Reorganized Debtor will be structured, managed, and funded as follows:
6.2.1 Structure Of Reorganized Debtor .
Under the Debt Conversion Option, the Reorganized Debtor will be restructured as
follows:
6.2.1(a) New Common Stock. On the Effective
Date, the Reorganized Debtor shall
have five million (5,000,000) shares of New Common Stock authorized, of which
one million (1,000,000) shares will be issued and outstanding, all of which
shares of New Common Stock shall, in accordance with this Plan, be issued to
High River.
6.2.1(b)Cancellation of Old Common Stock.
On the Effective Date, the Old Common
Stock (whether issued and outstanding or held in the treasury of the Debtor)
shall be canceled and extinguished, and holders of the Old Common Stock shall
not receive any equity or other interests in the Reorganized Debtor or any other
consideration in exchange for the cancellation and extinguishment of the Old
Common Stock.
6.2.1(c)New Certificate of Incorporation
and By-laws. As of the Effective Date,
the certificate of incorporation and bylaws of the Debtor shall be amended and
restated substantially in the forms of the Reorganized Articles and Reorganized
By-Laws, and which provide for, among other things, the authorization of any and
all acts necessary to effectuate this Plan including, without limitation, the
issuance of the New Common Stock. Such Reorganized Articles and Reorganized
By-laws shall also provide to the extent required by Section 1123(a) and (b) of
the Bankruptcy Code, for a provision prohibiting the issuance of non-voting
equity securities.
6.2.1(d)No Corporate Action Required. As
of the Effective Date (i) the adoption
of the Reorganized Articles and the Reorganized By-Laws or similar constituent
documents for the Reorganized Debtor; (ii) the initial selection of directors
and officers for the Reorganized Debtor; (iii) the adoption, execution, delivery
and implementation of all contracts, leases, instruments, releases and other
agreements related or contemplated by this Plan; and (iv) the other matters
provided for under or in furtherance of this Plan involving corporate action to
be taken by or required of the Debtor, or the Reorganized Debtor, shall be
deemed to have occurred and be effective as provided herein, and shall be
authorized and approved in all respects without further order of the Bankruptcy
Court or any requirement of further action by the stockholders or directors of
the Debtor, or the Reorganized Debtor.
6.2.2 New Management and Interim Operations
Pending Receipt of Gaming Approvals . Under
the Debt Conversion Option, the Reorganized Debtor will be managed as follows:
6.2.2(a) Interim Operation. The AZC
Affiliates will cooperate in the transition
of ownership and management of the Casino pending receipt by High River of all
required approvals from the Gaming Authorities. In this regard, Bruce Becker
will continue to manage and operate the Casino free of charge for sixty (60)
days from and after August 7, 1998, provided however, that Bruce Becker will
continue to use and occupy his suite at the Casino during the term of his lease
which will expire on December 31, 1998. Other managers and employees of the
Debtor will be compensated at their current salaries for services performed
during the transition of the ownership and management of the Casino.
6.2.2(b) Post Effective Date Management.
Under the Debt Conversion Option, and
following the Effective Date, the Reorganized Debtor will be managed under the
direction of Carl Icahn and as otherwise provided in the High River Plan.
6.2.3 Funding Of The Plan . From and after the
Effective Date, the Reorganized Debtor
shall have sole and complete discretion to raise capital for any purpose
authorized by the Reorganized Articles in any manner. On the Effective Date, and
subject to any applicable Gaming Authorities' approvals, High River will be
obligated to advance the Plan Payments and the Working Capital Reserve, which
shall be secured by a first mortgage on the Casino.
6.2.4 New Value Contribution. The AZC
Affiliates will deliver the New Value
Contribution to the Reorganized Debtor by July 24, 1998. The failure to make the
New Value Contribution by July 24, 1998 triggers the Debt Conversion Option
under the Plan, and will result in the joint and several obligation of each of
the AZC Affiliates to pay to High River $1,750,000 in cash.
6.3 Conveyancing And Related Obligations Of The AZC Affiliates
Under The Debt Conversion Option . Under the Debt Conversion Option, the AZC
Affiliates will make the following conveyances to the Reorganized Debtor:
6.3.1 Transfer Of Parking Lots . By August 7, 1998,
the AZC Affiliates will transfer to
the Reorganized Debtor the parking lots covered by the CHSC Leases, free and
clear of all liens, claims, and encumbrances, but subject to existing easements
and any mutual easements or right of ways needed to operate the balance of the
Shopping Center.
6.3.2 Lease Of Buildings Covered By the CHSC
Leases . By August 7, 1998, the AZC
Affiliates will lease to the Reorganized Debtor the buildings and other
improvements covered by the CHSC Leases (along with appurtenant parking), on the
same economic terms and conditions of the CHSC Leases, except that: (w) the
Reorganized Debtor can change the name of the Casino; (x) the term of the lease
will be 99 years or such other maximum period of time permitted by law; (y) the
rent shall be $10 per year; and (z) the lease will not be affected by the
proximity of the Casino to any other casino in which High River has or may have
an interest. The leases provided to the Reorganized Debtor under this
subparagraph 6.3.2 will have priority over any Existing Liens (defined below),
and the AZC Affiliates will deliver to the Reorganized Debtor attornment
agreements in form and substance satisfactory to High River. The AZC Affiliates
also will use reasonable efforts to remove the Exisiting CHSC Liens and effect
the fee simple transfer of the existing buildings and other improvements covered
by the CHSC Leases to the Reorganized Debtor, subject to existing easements and
any mutual easements or right of ways needed to operate the balance of the
Shopping Center.
6.3.3 Completion Of 1993 Transfers And Removal Of
Encroachments . By August 7, 1998, the
AZC Affiliates will complete all transfers required under that certain Agreement
of Reorganization dated as of November 13, 1993 which was executed in
conjunction with the AZC Indenture; the AZC Affiliates will cooperate in the
removal of any encroachments by the Casino on other portions of the Shopping
Center; and the AZC Affiliates will cooperate generally in ensuring that clear
title to the Casino is held by the Reorganized Debtor. The AZC Affiliates also
will cooperate in efforts which may be undertaken by High River to effectuate a
closure or relocation of that portion of Evergreen Street immediately adjacent
to the Casino.
6.3.4 Purchase Option For Balance Of Shopping
Center . By August 7, 1998, the AZC
Affiliates will grant to the Reorganized Debtor the Shopping Center Purchase
Option.
6.3.5 Limitations On Existing CHSC Liens .
During the option period provided in
subparagraph 6.3.4 above, the AZC Affiliates will make their normal debt service
payments in respect of the Existing CHSC Liens. The AZC Affiliates may refinance
the Existing CHSC Liens in a manner which does not materially increase the
amount or change the current amortization schedule and maturity for the
principal amount of the Existing CHSC Liens. In the event that the Reorganized
Debtor exercises the purchase option provided in subparagraph 6.3.4 above when
the Existing CHSC Liens are in default or otherwise cures any defaults under the
Existing Liens, the purchase price will be reduced dollar for dollar in an
amount which equals the then past due payments owing in respect of the Existing
CHSC Liens (along with any costs, fees, and other charges recoverable on account
of the default by the holders of the Existing CHSC Liens).
6.3.6 Specific Performance Of Conveyancing
Obligations . The Reorganized Debtor will
have the right to obtain from the AZC Affiliates specific performance of the
conveyancing obligations set forth in section 6.3 of the Plan without the need
to post any bond or other security. In addition, the AZC Affiliates submit
themselves to the jurisdiction of the Bankruptcy Court in the event that
enforcement of their obligations under this section 6.3 of the Plan is required
ARTICLE 7.
----------
OBJECTIONS TO CLAIMS
--------------------
7.1. Bar Date . The Bankruptcy Court established March 17,
1998 as the Bar Date for which all Claims (other than Claims arising from
Executory Contracts or Claims held by governmental units) were to be filed in
the Reorganization Case. Claims filed after the Bar Date will not be allowed
except as otherwise provided by the Plan.
7.2. Objections to Claims . Objections to Claims by the
Debtor, by the Reorganized Debtor, or by any other Person properly entitled to
do so under the Bankruptcy Code and Bankruptcy Rules must be filed with the
Bankruptcy Court and served no later than ten (10) days following the
Confirmation Date. Any objection to a Claim must be served upon the holder of
the Claim to which the objection has been made, and upon the Debtor or
Reorganized Debtor as appropriate.
7.3. Disputed Claims/Distributions . Except as agreed to by
the Reorganized Debtor, no payment or distribution will be made with respect to
all or a portion of any Disputed Claim until such Claim is an Allowed Claim.
Payments and distributions to each holder of a Disputed Claim (to the extent
that it ultimately becomes an Allowed Claim) will be made in accordance with the
Plan once such Claim becomes an Allowed Claim. Prior to the Effective Date, the
Debtor may not settle, compromise, or provide for allowance of any Disputed
Claim without the consent of High River.
ARTICLE 8.
----------
MODIFICATION TO PLAN
--------------------
8.1. Modification Prior to Confirmation . Prior to the
Confirmation Date, the Debtor and High River (by mutual consent) may modify the
Plan in accordance with Sections 1127(a), (c) and (d) of the Bankruptcy Code.
The Plan cannot be modified or withdrawn without the express written consent of
both the Debtor and High River.
8.2. Modification Post-Confirmation . The Plan may be modified
by the mutual consent of the Debtor and High River following the Confirmation
Date, but before the Effective Date, in accordance with Sections 1127(b), (c)
and (d) of the Bankruptcy Code.
8.3. Other Modifications . The Debtor and High River may by
mutual consent modify any document necessary to implement the Plan, provided
that such modifications do not adversely affect the treatment of any Allowed
Claims under the Plan.
ARTICLE 8.4.
------------
DISCHARGE
---------
8.5. General Discharge . Except as otherwise provided in the
Confirmation Order or the Plan, entry of the Confirmation Order discharges any
and all Claims against the Debtor including, but not limited to, any Claim which
arose at any time before the entry of the Confirmation Order and any Claim of a
kind described in Bankruptcy Code ss.502(g), (h) or (i).
8.6. Injunction . On and after the Confirmation Date, every
holder of a discharged Claim will be precluded from asserting against the
Debtor, the Reorganized Debtor, or any assets of the Debtor or Reorganized
Debtor, any such discharged Claim and any rights, remedies, demands, damages, or
liabilities of any kind arising from or related to any such discharged Claim.
ARTICLE 9.
----------
GENERAL PROVISIONS
------------------
9.1. Additional Assurances . The Debtor, Reorganized Debtor,
the AZC Affiliates, High River, and the Creditors holding Claims herein will
execute such other and further documents as are necessary to implement any of
the provisions of the Plan.
9.2. Amendments . Except as provided in Article VIII of the
Plan, the authority of the Debtor (with the consent of High River) or any other
party to amend or modify an agreement or instrument shall be as provided in such
agreement or instrument, but may not be inconsistent with this Plan.
9.3. Authority to Settle and Assign . In accordance with
Bankruptcy Code Section 1123(b)(3), the Debtor (with the consent of High River)
or the Reorganized Debtor will own and retain, and may enforce, compromise,
settle, release, or otherwise dispose of, any and all claims, defenses,
counterclaims, set offs, and recoupments belonging to the Debtor or the Estate.
The Reorganized Debtor is entitled to assign its rights under the Plan, and the
Debtor and High River with their mutual consent may assign their rights under
the Plan.
9.4. Confirmation by Non-Acceptance Method . The Debtor and
High River hereby request confirmation of the Plan pursuant to section 1129(b)
of the Bankruptcy Code with respect to any Class that is impaired and did not
vote to accept this Plan, and with respect to any Class that is deemed to have
rejected the Plan.
9.5. Confirmation Order . Except as otherwise provided, the
Plan shall have no force or effect unless the Bankruptcy Court enters the
Confirmation Order.
9.6. Construction . The rules of construction set forth in
Section 102 of the Bankruptcy Code shall apply to the construction of the Plan.
9.7. Continuing Jurisdiction . The Bankruptcy Court shall
retain jurisdiction after the Effective Date for the following purposes: (i) to
hear and determine any and all objections to the allowance of any Claim; (ii) to
hear and determine any and all applications for compensation and reimbursement
of expenses pursuant to Section 330 or Section 1129 of the Bankruptcy Code or
otherwise provided for in the Plan, or for expenses or compensation pursuant to
Section 503(b)(3) through (5) of the Bankruptcy Code; (iii) to hear and
determine any and all matters relating to the rejection, assumption, or
assignment of Executory Contracts; (iv) to enable the Reorganized Debtor to
continue to prosecute or to commence and prosecute any and all litigation,
including, without limitation, the Avoidance Actions, contested matters, or
adversary proceedings, which belonged to or could have been pursued on behalf of
the Estate (or the AZC Noteholders);(v) to correct any defect, cure any
omission, or reconcile any inconsistency in the Plan or in the Confirmation
Order or any other document as may be necessary to carry out the purposes and
the intent of the Plan; (vi) to determine any and all disputes which may arise
regarding the interpretation of any provisions of the Plan or the Confirmation
Order or other documents necessary to implement the Plan; (vii) to facilitate
consummation of the Plan by entering, consistent with the provisions of the
Plan, any further necessary or appropriate order(s) regarding enforcement of the
Plan or its provisions (including, but not limited to the entry of orders
designed to implement the terms of paragraph 6.3 of the Plan); (viii) to enter
an appropriate Final Decree in the Reorganization Case; and (ix) in the event of
an appeal(s) of the Confirmation Order, and provided that no stay of the
effectiveness of such Confirmation Order has been entered, to implement and
enforce the Confirmation Order and the Plan according to their terms.
9.8. Exculpation and Limitation of Liability . Neither the
Debtor, the Reorganized Debtor, the Creditors' Committee, High River, nor any of
their respective present or former members, officers, directors, employees,
advisors, attorneys, or agents shall have or incur any liability to any holder
of a Claim or an Equity Interest, or any other party-in-interest, or any of
their respective agents, employees, representatives, financial advisors,
attorneys, or affiliates, or any of their successors or assigns, for any act or
omission in connection with, relating to, or arising out of, the Reorganization
Case, the pursuit of confirmation of the Plan, the consummation of the Plan, or
the administration of the Plan or the property to be distributed under the Plan,
except for their wilful misconduct, and in all respects shall be entitled to
reasonably rely upon the advice of counsel with respect to their duties and
responsibilities under the Plan. Nothwithstanding the foregoing, the AZC
Affiliates will not be released from any claims that may be brought against them
according to the terms of the Plan by the Reorganized Debtor or by High River,
and nothing contained herein will excuse performance of the parties from
performance of their respective obligations under the terms of the Plan and
related agreements and undertakings.
9.9. Extension of Payment Dates . If any payment date falls
due on any day which is not a Business Day, then such payment date will be
extended to the next Business Day.
9.10. Final Decree . Unless there are any pending adversary
proceedings or contested matters, the Reorganized Debtor will seek from the
Bankruptcy Court a final decree closing the case six (6) months after the
Confirmation Date. Until the entry of the final decree, the Debtor shall file
with the clerk, not later than four (4) months after the entry of the
Confirmation Order, and every six (6) months thereafter, a report of the action
taken by the Reorganized Debtor and the progress made toward consummation of the
confirmed Plan. Said report shall include, at a minimum, the following
information:
(1) A schedule of any personal property costing more than
$5,000 and any real property acquired since confirmation of the Plan and the
price paid for each;
(2) A schedule listing each debt, the total amount required to
be paid under the Plan, the amount required to be paid to date, the amount
actually paid to date, and the amount unpaid;
(3) A schedule of executory contracts entered into after Plan
confirmation; (4) A statement listing each postpetition tax
(i.e., income, payroll, property, sales), and
payee and the amount actually paid; and
(5) The progress toward completion of the confirmed Plan and a
list and status of any pending adversary proceedings or motion and resolution
expected.
9.11. Final Satisfaction . Except as otherwise provided in the
Plan or the Confirmation Order, the distributions made pursuant to the Plan will
be in full and final satisfaction, settlement, release and discharge as against
the Debtor and its Estate, of any debt that arose prior to the Effective Date,
including any debt of a kind specified in Section 502(h), (g) or (i) of the
Bankruptcy Code, and all Claims of any nature, including without limitation, any
interest accrued thereon from and after the Petition Date, whether or not (a) a
proof of claim or interest based on such debt, obligation or interest is filed
or deemed filed under Section 501 or Section 1111(a) of the Bankruptcy Code, (b)
such Claim or interest is allowed under Section 502 of the Bankruptcy Code, or
(c) the holder of such Allowed Claim has accepted the Plan.
9.12. Fractional Dollars . Notwithstanding any other provision
of the Plan, no payments or distributions under the Plan of fractional dollars
will be made. When any fractional payment to any holder of an Allowed Claim
would otherwise be required under the Plan, the actual payment or distribution
will be made after rounding the fraction to the nearest whole dollar (up or
down). The Reorganized Debtor will not be required to make any distributions or
to issue any check that would be in an amount less than $2 on account of any
Allowed Claim.
9.13. Governing Law . Except to the extent the Bankruptcy Code
or Bankruptcy Rules are applicable, the rights and obligations arising under
this Plan shall be governed by, and construed and enforced in accordance with,
the laws of the State of Nevada, without giving effect to the principles of
conflicts of law thereof.
9.14. Headings . Headings used in this Plan are inserted for
convenience only and neither constitute a portion of this Plan nor in any way
affect the provisions of the Plan.
9.15. Interest on Claims . Unless otherwise specifically
provided for in the Plan or the Confirmation Order, post-petition interest shall
not accrue or be paid on Claims, and no holder of a Claim shall be entitled to
interest accruing on or after the Petition Date on any Claim. Without limiting
the foregoing, interest will not accrue or be paid upon any Disputed Claim in
respect of the period from the Petition Date to the date a final distribution is
made thereon if such Disputed Claim thereafter becomes an Allowed Claim.
9.16. No Penalties or Expenses . Except as expressly stated in
the Plan or as allowed by the Bankruptcy Court in accordance with the Bankruptcy
Code and Bankruptcy Rules, no penalty, late charge, attorneys' fees, costs, or
other expenses shall be allowed in respect of any Claim for the period
subsequent to the Petition Date.
9.17. Operative Documents . The Debtor (with the consent of
High River) may prepare any and all documents necessary or appropriate to
execute the Plan. If there is any dispute regarding the reasonableness or
propriety of any such documents after reasonable and good faith efforts by the
Debtor to negotiate and obtain approval of the documents by the other affected
Person(s), any such dispute will be presented to the Bankruptcy Court for
determination.
9.18. Payment of Statutory Fees . All fees payable pursuant to
Section 1930 of Title 28 of the United States Code, as determined by the
Bankruptcy Court at or in conjunction with the Confirmation Hearing, due at or
prior to such time, will be paid on or before the Effective Date.
9.19. Payment Option . At the option of the Reorganized
Debtor, except as otherwise required or provided in the Plan or by any
applicable agreement, any Cash payment to be made pursuant to the Plan may be
made by check on a United States bank mailed by first class mail or by wire
transfer.
9.20. Prohibition Against Prepayment Penalties . If the
Reorganized Debtor chooses, in its sole and absolute discretion, to prepay any
obligation on which deferred payments are provided under the Plan, the
Reorganized Debtor will not be liable or subject to the assessment of any
prepayment penalty thereon unless otherwise ordered by the Bankruptcy Court. The
Reorganized Debtor will not be obligated to pay any penalty for the prepayment
of any deferred obligation under the Plan.
9.21. Reservation of Rights . Any action by the Debtor or High
River with respect to the Plan shall not be deemed to be an admission or a
waiver of any rights prior to the Effective Date, except as specifically set
forth in the Plan with respect to the period prior to the Effective Date.
9.22. Retention of Claims and Causes of Action . Pursuant to
Bankruptcy Code ss.1123(b)(3), and except as otherwise provided in this Plan,
the Reorganized Debtor will retain and may enforce any and all claims and causes
of action of the Debtor and of the Estate.
9.23. Revocation . If this Plan is revoked or withdrawn, or if
Confirmation or the Effective Date does not occur (except as otherwise expressly
stated herein), the Plan, and the Confirmation Order shall be deemed null and
void, and, in such event, nothing contained herein shall be deemed to constitute
a waiver or release of any Claims by or against the Debtor, High River, the
Estate, or any other Person or to prejudice in any manner the rights of the
Debtor, High River, the Estate, or any Person.
9.24. Severability and Reformation . If any provision of the
Plan is determined by the Bankruptcy Court to be contrary to the Bankruptcy Code
or applicable non-bankruptcy law, that provision will be deemed severed and
automatically deleted from the Plan, if it cannot be reformed; or the provision
or its interpretation will be deemed reformed to ensure compliance with
applicable law. Pursuant to any ruling by the Bankruptcy Court regarding the
subject matter of this Section, any such severance or reformation will be stated
specifically in the Confirmation Order, which then will control notwithstanding
any contrary or inconsistent provision of the Plan.
9.25. Successors and Assigns . The rights, benefits, and
obligations of any Person named or referred to in this Plan will be binding
upon, and will inure to the benefit of, the heirs, personal representatives,
successors, and assigns of such Person.
9.26. Termination of Committees . The Creditors Committee will
automatically terminate, without further action or order of the Bankruptcy
Court, eleven (11) days after the Confirmation Date.
9.27. Time . Except as provided in the Plan, in computing any
period of time described or allowed by the Plan or the documents implementing
the Plan, the day of the act, event, or default from which the designated period
of time begins to run shall not be included. The last day of the period so
computed shall be included, unless it is not a Business Day, in which event, the
period will run until the end of the next day which is a Business Day. When the
period of time prescribed or allowed is less than eight (8) days, intermediate
days that are not Business Days shall be excluded in the computation.
9.28. Unclaimed Property . Any property held for distribution
in accordance with the Plan by the Reorganized Debtor which is unclaimed or
undistributed on the second anniversary of the Effective Date will be retained
by the Reorganized Debtor
9.29. Vesting . As of the Effective Date, the Reorganized
Debtor will be vested with all property of the Estate free and clear of all
Claims, liens, security interests, assignments, encumbrances, charges, and other
interests of Creditors except as otherwise expressly provided in this Plan.
ARTICLE 10.
-----------
CONDITIONS PRECEDENT TO THE EFFECTIVE DATE
------------------------------------------
10.1. Conditions Precedent to the Effective Date . The
following are conditions precedent to the occurrence of the Effective Date:
11.1.1 Regulatory Approvals Obtained . All
regulatory and other approvals required by
the State of Nevada or Clark County (including all necessary approvals of the
Gaming Authorities) of the transactions contemplated by the Plan have been
obtained.
11.1.2 Confirmation Order Effective . The
Confirmation Order (in form and substance
reasonably acceptable to the Debtor and High River) has been entered and is in
full force and effect; and there is no stay, injunction, restraining order, or
any other order which has been issued by a court of competent jurisdiction or
government agency staying or prohibiting the effectuation of the Plan.
RESPECTFULLY SUBMITTED this 24th day of June, 1998.
ARIZONA CHARLIE'S INC.
By /s/
-------------------------
Bruce F. Becker
Its Chairman and
Chief Executive Officer
HIGH RIVER LIMITED
PARTNERSHIP
By: Riverdale LLC,
its General Partner
By: /s/
-------------------------
Robert J. Mitchell
APPROVED AS TO FORM AND CONTENT:
BECKER GAMING, INC.
By /s/
-------------------------
Bruce F. Becker
Its Chief Executive Officer
SUNSET COIN, INC.
By /s/
-------------------------
Bruce F. Becker
Its Chief Executive Officer
CHARLIE'S LAND COMPANY
By /s/
-------------------------
Bruce F. Becker
Its Managing Agent
CHARLESTON HEIGHTS SHOPPING CENTER
By /s/
-------------------------
Barry Becker
Its Managing Partner
PREPARED AND SUBMITTED BY:
JAMES, DRIGGS & WALCH
3773 Howard Hughes Parkway
Suite 290N
Las Vegas, Nevada 89109
(702) 791-0308
-and-
STREICH LANG
A Professional Association
Renaissance One
Two North Central Avenue
Phoenix, Arizona 85004-2391
By /s/
-------------------------
John R. Clemency (Az. Bar No. 9646)
Ronald Thompson, Esq. (Nevada Bar No. 005524)
Attorneys for Debtor and
Debtor-In-Possession
BERLACK, ISRAELS & LIBERMAN LLP
120 West 45th Street New York, New York 10036
Counsel to High River Limited Partnership
By: /s/
-------------------------
Edward S. Weisfelner
- and -
HALE, LANE, PEEK, DENNISON, HOWARD,
ANDERSON AND PEARL Nevada Financial Center
2300 West Sahara Avenue Eighth Floor,
Box 8 Las Vegas, Nevada 89102
Nevada Counsel to High River Limited
Partnership
