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AFFIDAVIT REGARDING FOURTH AMENDED
PLAN OF REORGANIZATION DATED
OCTOBER 14, 2004
CANYON CLUB, INC.
EIN: 83-0333372
Debtor.
STATE OF WYOMING
COUNTY OF TETON
Case No. 04-20157
Chapter 11
RECEIVED 1/7/2005 at 10:37 AM
RECEIVING # 905681
BOOK: 576 PAGE: 627 JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER WY
COMES NOW, Joaquin K. Hanson, being first duly sworn upon oath deposes and says:
That I am the President of Jackson Hole Title & Escrow Company.
That in the due course of bus~ness, I have received a copy of the certified copy of
the Fourth Amended Plan of Reorganization dated October 14, 2004, attached as
Exhibit A hereto and made a part hereof by this reference in regard to the above
described case.
o
That in the due course of business, I have received a copy of the certified copy of
the Order Confirming Plan attached as Exhibit B hereto and made a part hereof
by this reference in regard to the above described case.
4. That this Affidavit is made in conformance with Wyoming Statute 34.1-9-501.
Further, your Affiant sayeth naught.
WITNESS my hand this 6th day of January, 2005.
,J.L~Q~ 'K. HANSON~, President -'"~-
Title & Escrow Company
Subscribed and sworn to before me this 6th day of January, 2005.
Notary Pu~ic(~~ '~'
My Commission Expires:
12-38-16-28-2-OO OO1
01/06/2005 15:55
3076328100
LAW OFFICE PC
PAGE
01/03
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C~'4YON CL.tm, rNC.,
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D~btor., )
' Case No.: 0~. 201.57
CHAPTER 11
dayee W. Harda
Clerk of Court ..
It tmving been dotm:niu~d.~m'review of the Fourth Amended ?hm'0f Reorgantza~on
ttmt .th~.'roquir~m~.nts for confirm~tlon ~et .forth in 11' U.S.C. §. 1.129(i0.& 0a). lmv~ b~n
saiSfi~d; ·
.... IT IS OKI)liKED that: .
'.The e'hapt~r il plan filed by the d.~btor on Do'ember 20, 2004 is 6onfkmeA.;
Thc debtor is dischargod from any debt flint arose boforo.thc &to of confirm~ti6n and
~qy. dobt sp4cified :m {} 50Z(g), (h), and (i), subje.ct .to tko conditions ~ud' oX°options cont~dnCd
in '11 u,s,c; §. 1 l~l(d) ~nd tho $onf~n~d plm~
.'" Thc pi" tn-op~nent shall p, ~o thc'Unlt~,d States Trustee the stin~, presently due and.
Payable purs'u~i to 28 U.S.C. § 1930(40) within ten (10) days bf thc' entry of this Order, ad
any Such sums' which conic du~ pursuant to § 1930(a){6) following confirmation until the case.
is ctosedi'dismisscd, o~ the'court converts this casc to another chap~kr.
DATED: ~ · - ":, -'
Service to:
All on Matrix
16:82
!
3876328188
HAOY LAW OFFICE PC
PAGE
81/81
UNITED sTATEs BANKRUPTCY COURT
FOR THE DISTRICT OF WYOMING
IN RE:
CANYON CLUB, INC.
B~N: 83-0.333372
Debtor.
Case No. 04-20157
Chapter 11
FOURTH AMENDED PLAN OF REORGANIZATION
DATED OCTOBER 14, 2004
Ca~uyon Club, I~c., Debtor and Debtor-in-Poss~don hereby proposes, pursuant
to Chapter 11., Title 11 of' the United States Code, the fallowing Plan of Keorsanlzation-
ARTICLE I,
INTRODUCTION
Canyon Club, Inc. ("CCI" or "Debtor") is a Wyoming vorporation. Th~ Debtor
main_~- its principal offices ~t 1 ~ohnlly Counts N, oad, ~ok~on, l, Vyomi~8, 83001.
CCI's principal bi~$/.ue~s is the owa~rship, investment, and d~wlopment of an
approximately 550 avre development proj ~t in 3ackson Hole, Wyoming (the "Project").
This Plan provides for the reorganization of the D~htor under Chaptvr 11 of the
B~kru. ptcy Code: Pursuant ~o the Plan, .CCI shall restructure its debt~ and obIigationz
utitiziniz a new loan which will be provided, by R,H. ]LOANS LLC ("I~L") and
complete the.development of the Projeat through a joint venture formed with an affiliate
of Dolan, Pollak & Sc~mn Development Company, LLC("DP&S"), known as Dolan,
Pollak & Sahram, .~R, LLC ("DP&~"-RK). A mo~e complete ~/story of the Debtor~ its
operations, an explanation of this Plan, and a description of th~ D'vbtor~s £mancial
condition and future business activity is contained in thc Disclosure Statement which
o osgst
accompanies this Plan. Reference should be .made to the Disclosure Statement by all
creditors and parties who intend to cast a ballot for or against this Plan.
ARTICLE II.
DEFINITIONS
2.01 - Administrative Claim shall mean a Claim for payment of an administrative
expense of a kind specified in § 503(1)) or 1114(o)(2) of the Bankruptcy Code and
entitled to prioritY pursuant to § 507(a)(1) of the Bankruptcy Code, including, but not
limited'to: (a) the actual, .necessary costs and expenses, incurred after the Petition Date,
of preserving the estate and operating the business of the Debtor, including wages,
salaries, or commissions for Services rendered after the commencement of the Chapter
il Case; (b). Professional Fee Claims; (c) all fees and charges assessed against the
estates under 28 U.S.C. §. 1930; and (d) all Allowed Claims tha.t are entitled to be
treated as Administrative Claims pursuant to a Final Order of tho Bankruptcy Court
under § 546(c)(2)(A) of the Bankruptcy Code.
2.02 - Aareement~ shall mean: a) the Marketing Agreement between DP&S and
Snake River Sporting Club Development Company, LLC; b) the Limited Liability
Company Operating Agreement of .Snake River Sporting 'Club Development Company,
LLC, Exhibit A hereto; e) tho MOU, Exhibits' E-1 and E-1 hereto; and d) the Loan
Agreement with REL, Exhibit F hereto.
2.03 - Allowed. Claim shall mean a claim in respect of which a Proof of Claim
has been filed With the Court within the applicable time period of limitation fixed by
Court Order in this ease or scheduled, in the list of creditors prepared and filed with the
Court pursuant to' B_anlcruptey Rule 1007Co) and not listed as disputed, contingent or
unliquidated as to amount, in either ease as to which no timely objection to the
allowance thereof has been filed pursuant to Bankruptcy Rules 3001 and 3007 or as to
whic. h any such objection has been determined by a Final order.
2.04 - Allowed Secured Claim shall mean an allowed claim secured by a lien,
security interest or other charge against or interest in property in which tho Debtor has
an interest, °r which is subject to setoffunder Section 553 of the Code, to ~e extent the
value (determined in accordance with Section 506(a) of the Code) of the interest of the
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holder of'any such allowed claim and the Debtor's interest in such property or to the
extent of the amount subject to such setoff as the case may be.
2.05 - Alternative Sele Trans.acti0n. means an alternative sale of the Project
pursuant to paragraph 9.14 of the Plan. .~:.._:
2.06 - Avoidance Action~ means the Debtor's estate's Interest in any and all
Claims, .rights and causes of action which have been or may be commenced by or on
behalf of. the Debtor to avoid and recover any transfers of property determined to be
preferential, fraudulent or otherwise avoidable pursuant to §§ 544, 545, 547, 548, 549,
550 or 553 of the Ba. nlcruptcy Code, 'or under any other applicable law, or otherwise
subject to equitable suberdination under § 510 of the Bankruptcy Code, regardless of
whether or not such actions have been commenced prior to the Effective Date.
2.07 - CCI Fu.nql.s means the funds in the approximate amount of $48 million
whichwill be. advanced by REL pursuant to the Loan Agreement on the date the Final
Order enters.
2.08 - Claim.. shall mean any right to payment, .or right to any equitable remedy
for breach of performance if such breach gives rise to the right to payment, against the
DeCtor in existence on or as of the Petition Date, whether or not such right to payment'
or right to an equitable remedy as reduced to judgment, liquidated, unliquidated, fixed,
contingent, natured, matured, disputed, undisputed, legal, secured or unsecured.
2.09 - Class' shall mean any Class into which Allowed Claims are classified
pursuant to Ai~icle III.
mean the Allowed Clams and Interests so classified in Article III.
2.11 - Closing Date shall mean the Effective Date of the Plan on which the
second rranche of funding in the amount of approximately $48 million will occur under
the REL Loan Agreement and will enable tho Debtor pay all Unsecured Claims and
Administrative Claims In full as set forth under the Plan and on and following which
date tho CCI Funds shall be disbursed. Alternatively, should a closing under the
Agreement fail to occur and the Alternative Sale Transaction found at paragraph 9,14 of
the Plan apply, Closing Date shall mean the closing on the saie of the Project pursuant
to the provision of paragraph 9.14 and Exhibit B of the Plan, all as approvcd by the
Court.
2.12.- Code shall mean the Bankruptcy Code~ Il U.S.C. § 101 ~t seq. and'any
amendments thereof. ,: :.
2.13 Confirmation Date shall mean the date upon which the Order of
Confirmation is entered by the Court.
2.14 - Court shah mean the United States Bankruptcy Court for the District of
Wyoming in'which the Debtor's Chapter 11 case is pending, pursuant to which this Plan
is proposed, and any Court having competent jurisdiction to hoar appeal or certiorari
proceedings therefrom.
2.15 - DP&S shall mean Dolan, Pollak & Schram Development Company, LLC, a
South Carolina limited liability company.
2.16 - Debtor shall mean the Debtor who is proposing this Chapter 11 Plan.
2.17 Disclosure Statement shall mean the Disclosure Statement which is
approved by the Court according to 11 U.S.C. § 1125 to be utilized to solicit votes for
this Plan.
2.18 - Disputed Claim mean.q any Claim which is not an Allowed Claim,
. including, without limitation, any Claim designated as disputed, contingent or
unliquidated in Debtor's schedules filed in connection with this case, or a. ny Claim
against which an objection to the allowance thereof has been interposed, and as to
which no Final Order has been entered.
2.19 - Effective Date of the Plan shall mean the date on which the Order of
Confirmation is entered or if a stay is entered pending appeal of the Order of
Confirmation, the dar& on which tho stay is no longer in effect.
2.20 ~ Final Order shall mean an order or judgment of the Court which s'hall not
have been reversed, stayed, modified or 'amended and as to which .(a) the time to appeal
from or to seek review, rehearing or certiorari shall have expired, and C°) no appeal or
petition for review, rehearing or certiorari is pending or if appealed shah ha'~e been
affirmed, or the appeal dismissed by the highest court to which such order was
appealed, or if review, rehearing or certiorari was sought, such review, rehearing or
certiorari has been denied and no further hearing, appeal or petition for review,
4
rehearing or certiorari can be taken or granted or as to which any right to appeal or to
seek a review, rehearing or certiorari has been waived.
2.21 - ~ shall mean any share of common stock or any ~her instrument
e~idencing any ownership interest in the Debtor and any option, warrant or ri gh!.: .o_[ any
nature, contractual' or othcrwise, to acquire common stock or an ownership interest in
the Debtor.
2.22 ~ Loan A~r~ement shall mean that Loan Agreement by and between the
Debtor and REL under which approximately $64.7 million will be advanced to the
Debtor in three tranches consisting of the $6 million Debtor-in-Possession loan, the
approximately $48 million loan advance upon the E£foctive Date of the Plan, and the
balance upon recording of the final plat for tire Project, plus a $9 million note executed
for the benefit of Bar-K, 'Inc., an affiliate of KEL (the "Second Note") and $1.8 million
Note secured by the Martin Crook Residence within the Project also executed for the
benefit of Bar-K (tho "Martin Creek Note"). The loan may be increased in mount at
the discretion of REL.
2.23 - M¢chani~ Liew Claimants.. shall mean aH holders of Allowed Secured
Claims based on mechanics liens properly recorded against any of the Debtor's real
property located in Teton County, Wyoming.
2.24 - ~ shall mean the two certain agreements resolving minority
shareholder disputes between: a) the Debtor, William Sullivan and James A. Graves and
others dated on or about November 11, 2004 and attached hereto as Exhibit E-l; and b)
i:he Debtor, Edwin Artzt, Allan Tesslor and others dated on or about October 24, 2004
and attached hereto as Exhibit E-2.
2.25 - Ordv'l of Confirmatior~ shall mean the Order entered by the Court
confirming the Plan in accordance with the provisions of Chapter 11 of the Code.
2.26 - Petition Date, shall mcan the date on which the Involuntaxy Petition was
flied against the Debtor on February 26, 2004.
2.27 - Pl.a~... shall mean this Second Amended Plan of Reorganization, as amended
in accordance with thc terms hereof or modified in accordance with the Code, including
all 'exhibits and schedules attached hereto or referenced herein or therein.
0634
2.28 - Prio.rit¥ Claim means any pre-petition Claim entitled to a priority in
payment under § 507(a) of the Code, but shall not include any Administrative Claim or
Tax Claim.
2.29 - pro Rata shall mean the ratio of an Allowed Claim or Intere~[_in a
particular. Class to the aggregate amount of all Allowed Claims or Interests in that
Class.
2.30 - Professions! Fees mc.mas the Administrative Claims for compensation and
reimbursement .submitted pursuant to Section 330, 331 and 503Co) of the Code by a
Professional Person.
2.3t' - ~ shall mean R.E. Loans LLC, a California limited liability company,
which will be the principal lender to the Debtor of approximately $64,700,000.
2;32 - !t. ules shall mean the Federal Rules of Bankruptcy Procedure and Local
Bankruptcy Rules for the District of Wyoming as adopted by the Court.
2.3'3 - ~ means any Claim of a governmental un_it for taxes entitled to
priority pursuant to 11 U.S.C. § 507(a)(8).
2.34 Unclassified Priority Claims shall mean Claims pursuant to Section
507(a)(1) Which are Administrative Claims allowed under Section 503(b) of the Code
'and any fees and charges against the estate under Chapter 123 of Title 28 of the United
States Code and shall further mean Allowed Unsecured Claims of governmental units to
the extent provided for in Section 507(a)(8) of the Code.
2.35 - Qther Definitign~. Unless the context otherwise requires, any capitalized
term used and not defined herein or elsewhere in the Plan but that is def'med in the
Code or Rules shall have the meaning set forth therein. Further, any terms defined in
the Agreements and not defined herein shall have the meanings set forth ia the
Agreements.
ARTICLE III.
DESIGNATION OF. CLAIMS AND INTERESTS
The' following is a designation of all classes of Claims and Interests other than
those Claims of a kind specified in Sections 507(a)(1), 507(a)(2) or 507(a)(8) of the
Code.
Clas~ 1.- All Allowed Unsecured Claims specified in Section 507(a)(3),
507(a)(4) or 507(a)(5) of the Code as having priority.
Class 2 - The AlloWed Secured Claim of Doll Financial Services~
Cl~.ss 3(a~ - The Allowed Secured Claim of First Interstate B~nk, under loan
documents dated January 9,'2003.
Class 3(b'~ - The Allowed Secured Claim of First Interstate Bank, under loan
documents dated April 3, 2003.
Class. 3(c)- - The Allowed Secured Claim of First Interstate Bank, under loan
documents dated December 21,200I.
Class 3(d).- The Allowed Secured Claim of First .Interstate Bank, under loan
documents dated May 8, 2003.
Class 4- The Allowed Secured Claim of Ford Credit.
Glass 5(al - The Allowed Secured Claim of GMAC, secured by a 2003 ChevrOlet
Tahoe.
Class 5_(bi - The Allowed Secured Claim of GMAC, secured by a 2001 Chevr01et
Silverado.
Class 5(~ - The Allowed Secured Claim of GMAC, secured by a 2001 Chevrolet
Silverado.
~lass 6(a~ '- The Allowed Secured Claim of Jackson Stat~ Bank in the principal
amount of approximately $3 million.
C~lass 6(b) - Tho Allowed SeCured Claim of Jackson State Bank in the principal
mount of approximately $3.5 million.
Class 7 - The Allowed Secured Claim of 8RCR Resources, LLC.
,Class 8}- The Allowed Secured Claims of the Teton County Treasurer.
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Class 9 - Tho Allowed Secured Claims held by Mechanics Lien Claimants.
' Glass 10 - The Allowed Claims held by unsecured creditors.
Class 11 (a and b) - The secured claims of L. Richard and Carolyn Edgeomb.
Class 12 - The secured claim of/dian R. Tessler. :::::.
Class 1-3 - The secured claim of Edwin L. Artzt, Trustee.
~ - The Interests held by pre-confirmation shareholders.
Class 15 - The Allowed Secured Claims not otherwise classified above.
ARTICLE IV
'SPECIFICATION AND TREATMENT OF UNCLASSIFIED PRIORITY CLAIMS
As provided in Section 1123(a)(1) of the Code, the Claims against thc Debtor
covered in tlais Article IV are not classified. Tho holders of such Allowed Claims are
not entitled to vote on the Plan.
4.1 - The holders of Allowed Claims of the type specified in Section 507(a)(1) of
the Code; Administrative Claims, shall receive cash equal to the allowed amount of
such Claim Or a lesser amount or different treatment as may be acceptable and agreed to
by particular holders of such Claims. Such Claims shall be paid in full on the Effective
Date of the Plan, or treated as otherwise agreed to by the particular holders of such
Claims. Section 507(a)(1) Administrative Claims that are allowed by the Court after
the Effective Date of the Plan shall be paid' upon allowance.
4.2 - The Allowed Claims of a type specified in Section 507(a)(8) of the Code,
Tax Claims of governmental taxing authorities, shall be paid on the Closing Date.
4.3 - The Debtor will make all payments required to be paid to the U.S. Trustee
pursuant to 28 U.S.C. § 1930(a)(6) until the case is closed, converted,' or dismissed. All
payments due to the U.S. Trustee pursuant to 28 U.S.C. § 1930(a)(6) shall be paid on
the Effective Date, and the U.S. Trustee shall thereafter be paid fees due on a quarterly
basis until the case is closed, converted, Or dismissed.
0905 5S1
ARTICLE V
SPECIFICATION AND TREATMENT OF CLASS 1 CLAIM
5.1 - Allowed Class 1 Priority Claims shall be paid in full on thc Cloaing"Dato.
The Ciasa I claims for certain pre-petition wages and employee Claims are more
particularly described in Sections 507(a)(3), 507(a)(4), and 507(a)(5) of the Code.
ARTICLE VI
SPECIFICATION AND TREATMENT OF SECURED CREDITOR CLAIMS
6.1 - First Interstate Bank. The Class 3(a-d) Secured Claims, shall b~ treated
as set forth herein..The Class 3(~-d) Secured Claims are unimpaired by this Plan. The
Class 3(adt) Secured Claims will be Allowed in their full mount pursuant to the terms
and conditions o f the First Interstate Bank loan documents which support, evidence, and
underlie each of the secured Class 3(a-d) claims. Claims shall be paid in accordance
With' the loan documents which evidence such claims or in cash on the Closing Date.
The legal, contractual, and equitable rights of the Class 3(a-d) claimants are unaffected
by-this Plan.
6.2 - Jackson State Bank. The Class 6(a and b) Allowed Secured Claims, shall
be treated as set forth herein. The Class 6(a and b) Allowed Secured Claims are
unimpaired by this Plan. The Class 6(a and b) Allowed Secured Claims will be allowed
in' 'their full amount pursuant to the terms and conditions of {he Jackson State Bank loan
documents which support, evidence, and underlie each of the secured Class 6(a and b)
Claims. Classes 6(a and b) shall be paid in full on tho Closing Date. The legal,
contractual, and equitable rights of the Classes 6(a and b) clkimant are unaffected by
this Plan.
6.2.1 - The Debtor shall have obtained, by the Closing Date, the voluntary
release by First Interstate Bank and Jackson State Bank of the personal guarantees held
by the 'two Banks for the .loans which are classified and treated herein, through payment
in full of such loans.
6~3 - Teton County Treasurer. The Class 8 Claim held by the Teton County
Treasurer s,hall.be treated and paid as set forth herein. The Class 8 Claim is unimpaired
by this Plan. The Class 8 Claim will bo paid in full with interest at the statutory rate on
or before 30 days followin.g the Closing Date. .::~_
6.4 -'De}Il Financial Services. Class 2 consists of the Allowed Secured Claim of
Dell FinanCial Services. Class 2 is unimpaired under this Plan. Class 2 will be allowed
and treated as set forth herein. The Class 2 Claim will be assumed by the Debtor and
paid aecord~g to the terms of the agreement underlying the Class 2 claim or paidon or
within 30 days of the Closing Date an amount to be determined by the Court at the
Confirmation Hoaxing, or in an amount agreed upon by the Debtor and the Class 2
creditor on or before the Confirmation Date.
6.5 Ford Credit. Class 4 consists of the Allowed Secured Claim of Ford
Credit. Class '4 is unimpaired under this Plan. Class 4 will be Allowed and treated as
set. forth herein. The Class 4 Claim will be assumed by the' Debtor and paid according
to the terms of the agreement underlying the Class 4 Claim or paid on or within 30 days
of the Closing Date an amount to be determined by the Court at the Confirmation
Hearing, or .in an amount agreed upon by the Debtor and the Class 4 creditor on or
before the Confirmation Date.
6',6 - GMAC. Class 5(a-c) consists of' the Allowed Secured Claims of GMAC.
Class 5(a-ei is unimpaired under this Plan. Class,5(a-c) will be Allowed and treated'as
set forth hereha. The Class 5(a-c) Claims will be assumed by the Debtor mad paid
according t9 the terms of the agreements underlying the. Class· 5(a-c) Claims;.or paid on
or within 30 days of the Closing Date an amoUnt to be determined by the Court at the
Confirmation Hearing, or in an amount agreed UpOn by the Debtor and the Class 5(a-¢)
creditbr on or before the Confirmation Date.
6.7'- SRCR Resources, LLC. Class 7 consists of the Allowed Secured Claim of
SRCR Resources, LLC. Class 7 is impaired under'this Plan. Class 7 will be allowed
and treated as. set forth herein.
A.' The allowed Class 7 .claim will be satisfied through the
payment of $2,600,000 in cash to Class 7, which will be
distributed to certain of its members in exchange for the
surrender of such member's membership interest in SRCR
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Resources, LLC, plus other consideration as more
particularly set forth in Exhibit E-1.
B. The Class 7 claimant's liens and security interests in the Project and
any and all property securing its claim as of the Petition Date shall be
releasedl satisfied and discharged on the Closing Date.
6.8 - M~ehanles Lien Claimants. The Class 9 Claims held by mechanics lien
claimants shall be treated and paid as set forth, herein. The Class 9 Claims are impaired
by this Plan.. The Class 9 Claims will-be paid in full on the Closing Date, including
interest at the rate of 6% per annum accrued from th~ date on which the claimant'S
invoice became past due to the Closing Date.
6.9 L. Richard and Carolyn Edgcomb. The Class 11 Claims held by L.
Richard and Carolyn Edgcomb shall be treated and paid as set forth herein. The Class
1'1 Claims axe impaired by this Plan. The liens held by Class 11 shall be 'discharged
released and avoided on the. Closing Date of the REL loan. The Class 11 Claims shall
be subordinated to the unsecured creditor claims in Class 10. The Class 11 ~Claims will
bo payable, and paid, only ~fter payment in full of all Secured and Unsecured .pre-
petition Claims, as more particularly set forth in the agreements between the Debtor,
the Class 1i claimants and DP&S. The Class 11 claims will then be paid out of the
proceeds o~the note and mortgage which the Debtor receives from its post-confirmation
joint venture partner pursuant to paragraph .9.4, SRSC. However, in the event of an'
Alternative Sale Transaction, the Class 11 Claims shall be deemed avoided puts.usnr to
11 U.S.C Section 547 and shall be treated as Unsecured Claims under Class 10 of tho
Plan.
6.10 - Allen R. Tessler and Edwin L. Artzt~ Trustee. The Class 12 and 13
Claims held by Allen R. Tessler and Edwin L. Artzt, Trustee shall be treated and paid
as set forth herein. The Class 12 and 13 Claims axe impaired by this Plan. On the
E'ffecti';,e Date of the Plan, the j. udgment liens recorded by the holders of Class 12 and
13 claims shall be deemed avoided as preferential transfers ptirsuant to 11 U.S.C.
Section 547. The Class 12 and 13 claims shall be Unsecured Claims and alIowed and
treated as Class 10 Claims. The Class 12 and 13 claims will be paid their claims plus
interest as more particularly set forth in Exhibit E-2, Such payments shall be made in
total satisfaction and discharge of the claims and judgments held by the Class 12 and 13
claimants against the Debtor. Upon receipt of payment, all state court lawsuits for '
collection of such claims shah be dismissed with prejudice by the Class 12 and 13
claimants. : -::
6.11 - Other Secured Creditors. Class 15 Claims are unimpaired. In full
satisfaction, payment and. discharge of Class 15 claims, each holder of an allowed Class
15 Claim, if any, shall receive one'of the following treatments, at the election of DPS
and .the'Debtor: (i)'thc legal, equitable and contractual rights to which sUCh Allowed
Class 15 Claim entities the holder thereof; (ii) the treatment described in Section
'1124(2) of the Code; or (iii) such other treatment as agreed to by the holder of such
Allowed Ciasa 15 Claim and the Debtor.
ARTICLE VII
SPECIFICATION AND TREATMENT OF
UNSECURED CREDITOR CLAIMS
7.1 -.Class 10 consists of those unsecured creditors of CCI who hold Allowed
Claims. Class 10 shall receive payment in full of their Allowed Claims plus simple
interest at the ram of 6% per annum calculated from file date on which each claimant's
claim became past due until the claim is paid. Distributions to Class 10 Claims shall
commence on the Closing Date.
ARTICLE VIII
SPECIFICATION AND TREATMENT OF CLASS 14 INTERESTS
8.1 Class 14 includes the Interests in CCI held by the pre-confirmation
shareholders. Class 14 interest holders A. rtzt, Tessler, Sullivan, Graves, Newton, and
FitzPatrick, will recmve the consideration scl forth in the MOU in consideration and
exchange of their Interests. The Interest of any member receiving a Credit Certificafc
or other consideration, shall be transferred back to the Debtor as provided in the MOU.
The intercsr's of Edgcomb are unimpaired.
ARTICLE IX
MEANS FOR TIlE PLAN'S EXECUTION
9.1 - Approval of Agreements. The Agreements, which are attached to this Plan
as Exhibits A, B E-.I, E-2 and F, or such alternative Agreement as provided for under
paragraph'9.14, shall be assumed by the Debtor and deemed approved by the Court
upon confirmation of the Plan. The Agreements shall be implemented by the Debtor in
all respects following confirmation of the Plan.' Confirmation of the Plan shall
constitute an. order providing for the approval of inter alia, the following: a) approval of
a loan to the Debtor by REL in the original principal amount of approximately $64.7
million plus the Second Note and the Martin Creek Note; b) approval of the Debtor
entering into the Operating Agreement attached hereto as Exhibit A with DP&S-SR,
which limited liability company will be known as the Snake River Sporting Club
Development Company, LLC ("SRSC"); c) approval of a Management Agreement
between $RSC and the Greenbrier Resort and Club Management Company.
9.2 - Operation of Business. CCI Shall be empowered to take such action as
may be necessary to perform its obligations under the Agreements and this Plan.
9.3 - Approval of Loans. Confirmation of the Plan shall constitute an Order
authorizing the Debtor to enter into the Loan Agreement with R_EL, which is attached
hereto as Exhibit F. The REL loan will be secured by the Project and will be evidenced
by loan documents reasonably satisfactory to the Debtor, DP&S-SR and REL.
Confirmation of the Plan shall constitute notice to all parties in interest that:
a. The Debtor is solvent as of the Confirmation Date and will not be
rendered insolvent as a result of the Loan Agreement;
b. The Debtor is receiving reasonably equivalent value in exchange
for the Loan Agreement and the documents and collateral
agreements executed thereunder;
c. The Debtor and R_EL have acted in good faith in connection with
the Loan Agreement and without any intent to hinder, delay, or
defraud creditors;
d. The proceeds of the Loan Agreement will be used for business
purposes and ~ot for personal, family, or household use;
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0 05G81,
o. The Loan Agreement and all documents executed in connection
thereto have been negotiated at arms length and in good faith
between the Debtor and REL; and
f, The REL loan to the Debtor made pursuant to the Loan Agre. om_ ent
shall, at the time it is elosecl and a mortgage recorded on .the
Closing Date, constitute a first lien on all prope.rty constituting the
Project, junior only to unpaid real property and tax liens of Teton
County, Wyoming, and senior to all liens, mortgages,
encumbrances of any creditor in 'this ease. All liens of creditors
shall on the Closing Date with respect to the REL. loan, have their
liens on the Project transferred to the REL loan proceeds of
approximately $48 million which will be escrowed in accordance
with Plan paragraph 9.6 or paid with respect to liens and claims
that are Allowed Claims. The REL loan shall also be senior to any
mechanics liens that may be filed or recorded after the Closing
Date on the REL 10an.
g. If the conditions to Closing contained in the Loan Agreement are
not satisfied, REL shall have no further obligations of any kind
under the Loan Agreement; the Agreements and the Loan
Agreement shall be null, void and of no further force and effect;
and the $6,000,000 DIP Loan shall remain enforceable between the
parties in accordance with its terms as approved by this Court.
9.4- REL L. oaa. Agreement. The Order of Confirmation shall constitute an order
eonflxming that the terms of the REL Loan Agreement that will provide the funding for all
distributions Under the Plan and financing of the Project, are reasonable, and in the best interests
Of the Debtor, the estate, and parties in interest. The Order of Conftrmation shall constitute an
.order further confirming that subject to the occurrence of the Effective Date and the closing of
the REL Loan:
(1) All documents and agreements necessary and appropriate to implement
the REL Loan, including without limitation, the Loan Agreement and any documents
-executed to impiement' the same, and the execution, delivery and performance of such
documents' and agreements, are approved.
14
(2) The Debtor is authorized to grant to REL and Bar K, Inc. valid,
binding, enforceable and perfected security interests in and liens upon all collateral
specified in hhe Loan Agreement to secure all of the obligations arising under or in
connection with the Loan Agreement. The Loan Agreement and each doc-merit,
instrument, and agreement executed in connection therewith shall constitute legal,
valid,, binding and authorized obligations of the respective parties thereto, enforceable
in accordance with their terms. The security interests and liens granted pursuant to, or
in connection with~ tho Loan Agreement shall constitute, as of the closing date, legal,
valid and duly perfected.~ first and second priority Ii,as and security interests in and to
the collateral specified therein.
· (3)The Debtor is authorized and empowered to execute and deliver all
documents, agreements and instruments and take all actions reasonably necessary to
effectuate the consummation and implementation of the Plan, including~ without
limitation, th'e execution, delivery and~ performance of the Loan Agreement, loan
documents and each other document, instrument, and agreement to be executed in
'conn'ecti0n therewith, and the tran'sactions contemplated thereby. All such documents,
'instruments, and agreements will, upon 'execution, he valid, binding and enforceable
against the Debtor and any other person who is a party thereto, and is entered for good
and valuable consideration, including the benefits of the Plan.
(4) The security interesis and liens to be granted by the Debtor and in
connection with the Loan Agreement: (a) are. legal, valid and enforceable; and Co) do
.not constitute preferential transfers or fraudulent, conveyances under the Bankruptcy
code or any .other applic, able law. .
(5) Simultaneously with the closing of the Loan Agreement, and except as
otherwise provided in such Loan Agreement, all the Debtor's outstanding obligations to
thc holders of Allowed Secured Claims shall be fully and finally satisfied in' accordance
with their terms, using proceeds derived from the Il.EL Loan and the Loan Agreement.
All amoUnts, due and owing to the Lende~ including all attorneys' fees and costs shall be
paid tO the Lende~ on the Closing Date from tho proceeds of the Loan Agreement.
9.5 - REL Secured Status. The R.EL mortgage in the mount of $64.7 million and the
Bar K,. Inc. mortgage in the amoUnt Of $1.8 million, which are made pursuant to the Loan
Agreement, at'the time they Close and record, shall conStitute first priority liens on all property
therein described constituting the Project, junior only to Unpaid real property tax Ii(ms of Teton
County/WYOming and the Bar K, Inc. Second Mortgage, as defined in the Loan Agrrx~cnt, in
the.amount of $9 million shall constitute a second priority lien, junior only to the liens described
above. All liens of secured creditors shall on the dosing, date with respect to the R_EL loan, have
thcir liens' On thc .Project transfer to an equivalent portion of the R.EL loan proceeds which shall
be held in a segregated account for payment of such Allowed Claims and a poiXion of tho REL
15
064 4
loan proceeds, to the extent needed.to pay Allowed Claims hold by unsecured creditors and
Unclassified Priority Claims, shall be deposited in tho Distribution Account pursuant to the terms
of t~o Loan Agreement and in accordance with the Plan and paid to holders of such claims,
Lien claimants shall be required to execute a Satisfaction and Release of IA~..__and a
. SubordinatiOn of Lien to the REL and Bar K, Inc. mortgages in a form. approVed by the tiro
insurance company closing the REL Loan. Pursuant to 11 U.S.C. Section 1141, the REL and
Bm. IL, Inc. mortgages shall be senior to any mecahanies lien that may be filed after the
Confirmation Date and no such lien will be entitled under Section 29-1-305 of the Wyoming
statutes and Thatcher & Sons, Inc. v. Norwest Bank Ca~per, ;VA., Wyo:, 750 P.2d 1324 (1988)
to relate back to a date. prior to the REL closing date.
9.6 - Formation of Limited Liability-Company. On the Effective Date of the
Plan, the Debtor shall be authorized to enter into a limited liability company with
DPS~S-SR known as SRSC pursuant to the Operating Agreement attached hereto as
Exhibit A. Once the limited liability company is formed, the Debtor shall be authorized
to convey its' interest in the Project, subject to the R_EL loans, to SRSC in exchange for
its interest in SRSC and SRSC shall assume all ongoing obligations to implement tho
Plan.
9.7- Effectuating the Plan. On the Effective Date of tho Plan, L. Richard
Edg¢omb shall be appointed as the agent of CCI pursuant to 11 U.S.C.§1142(b) for the
purpose of carrying out the terms of the Plan, and taking all actions deemed necessary
or convenient to consummating the terms of the Plan and the Agreements, including but
not limited.to execution of documents.
9.8 - Establishment of Distribution Accounts. The CCI Funds advanced to CCI
by KEL pursuant to the Plan and the Loan Agreement shall be paid to and held by an
escrow agent designated by CCI and its Creditors Committee. Funds shall be held in a
segregated account established pursuant to Bankamptcy Rule 3020(A) ("Account"). The
Aecotmt shall be a trust or escrow account maintained by a third party. The Creditors
.Committee and CCI shall file with the Court a~y escrow instructions for a third party
escrow prior to confirmation of the Plan.
9.9 -'DisPuted Claim Procedure. Distributions to a.ny class of creditor will only
be m~le on account of Allowe~i Claims. In the event that distributions are made at a
16
time that a claim objection is pending before the Court or a judgment has entered to
establish a Claim and the judgment is not subject to a Final Order, the portion of the
distribution that would be paid .to the disputed claimant will be held in the account
established pursuant to paragraph 9.6 in an interest bearing bank account until the
Claim is AlloWed or disallowed. If Allowed, the Claim will be paid its appropri.'ate
share of the withheld payment with interest at the rate of six percent (6%) per annum.
If disallowed, the-withheld distribution will be paid on a Pro Rata basis to the
remaining impaired Allowed claimants, or if all holders of Aliowed Claims have boon
paid in full~ paid to Debtor.
9.10 - Claims and Litigation Bar Date and Standing. All Claim objections and
. Avoidance ACtions in the case'must be filed no later than 30 days following the Closing
· Date. The Debtor shall have standing to commence, prosecute, and settle. (subject to
Court approval) claim objections and avoidance actions. The Creditors Committee may
make' demand upon the 'Debtor to pursue particular claim objegtions or avoidance
actions. In the event the Debtor does not agree to pursue such actions, it may designate
the Creditors' Committee to pursue the action. If tho parties can not agree on how or
whether the action should be pursued the dispute will be submitted to the .Court to
resolve. However, Avoidance Actions will not be pursued in the event the R_EL loan is
closed.
9.11 - Admtni. strative'Expense Bar Date. Alt applicatiOns for allowance and
payment of Administrative Claims, including Professional Fees, must be filed withi'n 30
days following the Closing Da~e.
· 9.12 - Monthly Installments. 'Whenever the Plan provides for payment in
monthly installments or a payment due in a certain month, the payment shall be .due on
the last day of the calendar month in which the payment is due, unless otherwise
specified in the Plan. The Debtor shall then have a five day grace period within which
the monthly payment must be received by the payee before the Debtor shall be in
default.
9.13 - Final Decree. The Debtor will request entry of a final decree closing the
ease on or before the later of the date ail Claim objections a'nd any pending litigation is
concluded or' 180 days after the Effective Date of the Plan.
17
' 0646
9.14 - Quarterly Fees. Prior to the entry of the final decree, the Debtor shall
continue to remit quarterly fees and post-confirmation reports to the United States
Trustee, as required by statute.
9.15 - Exemption from Transfer Taxes, Pursuant to Section 1146(c):.o_? the
Code, the issuanca, 'transfer, or exchange of notes or equity securities under the Plan by
the Debtors, the creation of any mortgage, deed of trust, or other security interest, the
making or assignment of any lease or the making or delivery of any deed or instrument
of transfer under, in furtherance of, or in connection with the Plan or the Agreements
shall not be subject to any stamp, real estate transfer, mortgage recording, or other
similar'tax.
9.16 - Consequences in the Event That.the Closing Date on the DP&S/REL
Transaction Does Not' Occur. In the event that the Closing Date under the Agreements
does not' occur this provision shall govern the sale of the Project or any alternative loan
or other proposal. The Debtor shall proceed to market and sell the Project pursuant to a
public process conducted in accordance with the procedures set forth in Exhibit B to
this Plan. The Project will be marketed and bids or offers solicited for a period of no
less than ninety (90) days. The solicitation process will be open to offers, solicited by
the Debtor, creditors, or interest holders provided such offers comply with the
procedures described in Exhibit B. At least 75 days prior to an auction under this
section, the Debtor and the Comu~ittee shall submit to the Court for approval, the final
form of Bidding Procedures, with the identity of the party conducting the auction and
the eom_mission to be paid inserted into the Bidding Procedures, and the form of
Purchase Agreement to be attached as Exhibit B-1. Notwithstanding any other
provisions of the Plan, all of the Debtor's rights to object to claims or pursue avoidance
actions,' as of the Petition Date, shall be preserved and may be commenced, prosecuted,
and settled (subject' to Court approval) by either the Debtor or the Creditors Committee.
9.17 - Valley Blue Sky, LLC ("VBS'). The VBS post.petition loan to the
Debtor ha$ been repaid. VBS may file a motion for allowance of a break-up fee or
other compensation. Such a motion must be filed by the administrative claim bar date
set-forth in the Plan. The Debtor may object to such a motion and expects to file an
objection if the motion requests allowance of a fee the Debtor believes is unreasonable.
18
The issues may bo settled by the.parties or determined by the Court following the
Confirmation Date. Each party will bo responsible for paying its own legal fees and
c0s~s, unless otherwise, ordered by the Court.
9.18 - Failure of Plan. In the event that a Closing Date does not o¢gu_r as
provided in the Plan, a Plan default shall occur and any party may request immediate
conversion of the case to Chapter 7 or dismissal of the case.
ARTICLE X
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
'10.I - On the Effective Date of the Plan, the Debtor does hereby assume those
executory contracts and unexpired leases listed in Exkibit C attached hereto and
incorporated herein by reference, which have not been assumed by prior Order of the
Court prior to tho Confirmation Date. All such contracts and leases may be assigned to
a purchaser (or purchasers, as applicable) in the event of an Alternative Transaction
under paragraph 9.14. On the date of the entry of an Order confirming the Plan, the
Debtor shall be the holder of all right, title and interest to the assumed leases and
contracts and such assumed leases and contracts shall be in full effect and bind~g upon
the Debtor. and the 'other parties thereto. Confirmation-of the Plan shall constitute a
determination that the payments to be made to said creditors pursuant to the Plan satisfy
all conditions precedent to assumption and assi~ment set forth in 11 U.S.C. § 365(b)
and' (0.
10.2 - On the Effective Date of the Plan, the Debtor will reject all executory
contracts and unexpired leases to which it is a party which are listed in Exhibit D,
attached hereto and ~corporated herein by reference which have not been rejected by
prior Order of the Bankruptcy Court prior to tho Continuation Date. Executory
contracts and' unexpired leases will be rejected pursuant to the provisions of 11 U.S.C.
§365: ,May ekecutory contract or unexpired lease not assumed in accordance with the
plan shall be rejected.
10.3 - An Order confirming this Plan constitutes approval by the Court of the
assumption or rejection of the executory contracts and unexpired leases described
herein/n accordance with the pro~sions of 11 U.S.C. §365 and the Rules.
19
06d8
10.4 - Claim~ Arising from Rejection. All proofs of claim with respect to
ciaims, arising f~om the rejection of any executory contract or unexpired lease shall be
filed With the Bankruptcy Court within twenty (20) days after the earlier of (i) the date
of the Bankruptcy Court order approving the Debtor's rejection of such exeg.~_t_0rY
contract or unexpired lease or (ii) the Confirmation Date. Any claims not filed within
such time shaH'be forever barred against the Debtor, its estate and property and any
such Claims shall be disallowed in full. Claims arising from such rejection, to the
extent'Allbwed, shall be treated as Class 10 unsecured Claims.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 Revestment. The cntry of an Order confirming th/s Plan shall revest in
the Debtor all property of the estate free and clear of all liens except those specifically
set forth in the Plan and the Agreements, including the 1LEL loan made during the
course of the Chapter 11 case.
11.2 Retention of Jurisdiction. Notwithstanding confirmation of the Plan, the
Court shall ret0Jn jurisdiction for the following purposes:
1. Determination of the allowability of claims upon objection to such claims
by the Debtor-in-Possession or by any other party in interest;
2. Determination of the request for payment of el_Mms entitled to priority
under 11 U.S.C. Section 507(a)(1), including compensation of the parties
entitled thereto;
3.Resolution of any disputes regarding interpretation of the Plan;
4. Implementation of the provisions of the Plan'and entry of orders in aid of
consummation of the Plan, including without limitation, appropriate
orders to protect the revested Debtor from action by creditors;
5.Modification of the Plan pursuant to 11 U.S.C. §I 127;
6. Adjudication of any causes of action, including avoiding powers actions,
brought by the Debtor-in-Possession, by the representative of the estate or
by a Trustee appointed pursuant to the Code;
20
I
.. 064 9
7. Adjudication of any ~us~ of action brought by the D~B~orAn-Poss~slon,
Creditors Commi~ee, by a representative of the estate, or by a T~stee
appointed p~s~t to the Code, or ~e revest~ Debtor exercising rights
and pow~s ~ prodded in 1l U,S.C. ~42-549. ~is section shall not be
cons~ to limit ~y oth~ power or Hght which ~e Debtor may possess
~de~ auy section of ~e Code; ~d
8. EnVy o f a final de~ree.
11.3 - So.faction of Cla~s. CCI shall receive a disch~ge on ~e collation
date pursuit to Section 1141(d), prodded ~e Plan is not cons~mated by ~
~ternative 'Tr~sao~on. Confi~ation of ~e PI~ shall co~te a modification of ~y
note 0r obligation for w~ch specification ~d ~ea~ent is prodded ~d~ ~e Plan as
set fo~ ~'~e Plan. ~y obHgatio~ or note, pre~ously ~ defa~t, so modified, shM1
be cur~ as modifi~ as of ~e Co~a~on Date. ~s pro.sion shM1 be operable
reg~dless of whether ~e Plan provides for ~y obligation to be e~d~ced by a
re~itten Io~ or security docum~t following confi~ation of ~e PI~. The disch~ge
shall not operate to dis~ge ~y cl~ or lien held by ~L.
1 1.4 Hea~ngs. The headings used in ~e PI~ ~e for convc~ence ofrefercnce
only an~ shall not l~it or in ~y manner affect ~e mea~g or int~rctation of the
PI~
11.~ Notices. All notices, requests, dem~ds, or o~er communications
required or pe~itted in t~s Plan must be given m w~tfng to the p~y(ics) m be
.notified. M1 co~ications will be deemed delivered wh~ received at the following
addresses:
ao
To CCI '
L. Richard Edgeomb
1 Johnny Counts Road
Jackson, WY 83001
With a copy to:
Lee M. Kutner, Esq.
Kutner Miller, P.C.
303 East 17th Avenue, Suite 500
Denver, CO 80203
Fax: 303-832-1510
Email :lmk~kutnerlaw. eom
21
0905 SZ
To DP&S at:
Dolan, Pollak & Schram-SR, LLC
c/o Dolan, Pollak & Schram Development Co., LLC
450 Park Avenue, Suite 2401
New York, NY 10022
Fax: 212-759-3031
Email: scschram~gQl.com
With a copy to:
John E. Osnato, Esq.
Kavanagh, Maloney & Osnato, LLP
415 Madison Avenue
New York, NY 10017
Fax: 212-888-7324
Email: j ohnosnato ~kmollp.com
b. To an allowed claimant, at the addresses set forth in the allowed
Proof of Claim, if filed, other, at the address 'set forth for the
claimant in the Debtor's S.chedules filed with the CoUrt.
· 11.6 - Successors and Assigns. The Plan will be binding upon.the Debtor, any
creditor affected by the Plan and their heirs, successors, assigns and legal
representatives.
11.7- - Unclaimed Payments. If a person or entity entitled to receive a payment
or distributicm pursuant to this Plan fails to negotiate a check, accept a distribution or
leave a forWarding address in the event notice cannot be provided as set forth in
Paragraph 11.5, within one (1) year of the Effective Date of the Plan, the person or
entity is deemed to have released and abandoned any right to payment or distribution
under.the Plan.
1t-.8.'- Committee Termination. The CreditOrs Committee appointed in the
b~nlcruptcy case shall terminate upon entry of a Final Decre~ closing the case'.
1'1.9 - Liability. Except as set forth in this Plan, neither the Debtor, any
Committee appointed nor any of their agents, managers, representatives, attorneys,
. 'accountants or advisors shall have or incur any iiability for any past, present or future
actions taken or omitted to be taken under, in connection with, related to, affecting or
arising out of the. bankruptcy case or this Plan except for claims based on gross
n6gligence or willful misconduct.
22
flick Ed'CooaD 30'7-734-0P39 p.2
ARTICLE XII
CONFIRMATION REQUEST
12.I - The Debtor, as proponent of the Plan, requests confirmation of the Plan
pursuant to 11 U.S.C. ' 1129. The Debtor w/Il solicit acceptance of the Plan after i.ts.-
Disclosure Statement has'been approved by the Court and is transmitted to the ~rcclitors,
interest holders and parties in intcr~st In the event the Debtor docs not obtain the
necessary 'acceptances of its Plan, it may make application to the Court for confirmation.
of thc Plan pursuant to il U.S.C. ' 1t29(b). The Court may oanfirm the Plan if it does
not discriminate tmfairly and ia fair and equitable w/th respect to each class of Claims
or Interests thai ks impgired and has not voted to accept thc Plan.
DATED: De~ember 20, 2004
L~o M: Kutncr, Esq.
Kutncr Mill~t, P.C.
303 East 17th Av~nt~, 8uit~ 500
Dcnv~, CO g0203 .
Tel~honc; 303- 832-2400
F~: 303-~32-1510
Bm~l: lmk~umcrhw.~m
'M~k E.
217 W~t I
Ch~y~c, ~ ii001
Tcl'ephonc: (307~ 63
Fax: (307) 632-~100
A~ORNBYS FOR C~YON CLUB, ~C.
DEBTOR A~ DEBTOR-~-POSSBSSION
23
EXIIIBITS REMAIN THE SAME