SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K/A
Amendment No. 1
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
October 19, 1998
0-11890 Date of Report
(Date of Earliest Commission File Number Event Reported)
VISTA PROPERTIES
(Exact Name of Registrant as Specified in its Charter)
California 13-3179078
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification Number)
411 West Putnam Avenue
Suite 270
Greenwich, Connecticut 06830
(Address of Principal Executive Offices) (Zip Code)
(203) 862-7444
(Registrant's telephone number, including area code)
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Item 7. Financial Statements and Exhibits.
Copies of the Plan and the Order Confirming Pension Fund Trustee's
First Amended Plan of Reorganization (August 26, 1998) are attached amending the
Form 8-K previously filed on October 2, 1998.
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SIGNATURE
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 hereunto duly authorized.
VISTA PROPERTIES
(Registrant)
Dated: October 19, 1998 By: IR Vista Realty Corp.
Management General Partner
By: /s/Allan B. Rothschild
---------------------------
Allan B. Rothschild
Executive Vice President
By: /s/Lawrence R. Schachter
---------------------------
Lawrence R. Schachter
Senior Vice President and
Chief Financial Officer
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ORIGINAL FILED
SEP -9 1998
BANKRUPTCY COURT
OAKLAND, CALIFORNIA
MURPHY SHENEMAN JULIAN & ROGERS
A Professional Corporation
PATRICK A. MURPHY (S.B. No. 038832)
TOBIAS S. XELLER (S.B. No. 151445)
101 California Street, 39th Floor
San Francisco, CA 94111
Telephone Number: 415/398-4700
Facsimile Number: 415/421-7879
WACHTELL, LIPTON, ROSEN & KATZ
MICHAEL B. BENNER
51 West 52nd Street
New York, NY 10019
Telephone Number: 212/403-1000
Facsimile Number: 212/403-2000
Attorneys for Bankers Trust Company, as Trustee for the General Motors
Corporation Hourly-Rate Employes Pension Trust, and as Trustee for the General
Motors Corporation Salaried Employes Pension Trust
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
(Oakland Division)
In re: ) Case No. 97-45990-J
)
VISTA PROPERTIES, a California ) Chapter ll limited partnership,
) PENSION FUND TRUSTEE'S FIRST
Debtor ) AMENDED P1AN OF REORGANIZATION
) (AUGUST 26, 1998)
)
- ------------------------------------- )
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS 1
ARTICLE II PAYMENT OF ALLOWED ADMINISTRATIVE EXPENSE CLAIMS
AND ALLOWED TAX CLAIMS 17
2.1 Non-Classification 17
2.2 AdministratiVe Expense Claims 17
2.3 TaX Claims 17
2.4 Professional Fees 18
ARTICLE III CLASSIFICATION OF CLAIMS
AND INTERESTS 19
3.1 Criterion of Class 19
3.2 Allowed Claims and Interests 19
(a) Class 1 (Priority Claims) 19
(b) Class 2A (Texas Mortgagee Claim) 19
(c) Class 2a (Pension Fund Claim) 19
(d) Class 3 (Allowed Unsecured Claims) 20
(e) Class 4 (Affiliate Claims) 20
(f) Class 5 (Limited Partners' Interests) 20
(g) Class 6 (General Partners' Interests) 20
3.3 Impaired and Unimpaired Classes 20
ARTICLE IV TREATMENT OF CLAIMS NOT IMPAIRED UNDER THE PLAN 20
4.1 Class 1 (Allowed Priority Claims) 20
4.2 Class 2A (Texas Mortgagee Claim) 21
4.3 Class 3 (Unsecured Claims) 21
ARTICLE V TREATMENT OF CLAIMS AND INTERESTS
THAT ARE IMPAIRED UNDER THE PLAN 21
5.1 Class 2B (Pension Fund Claim) 21
5.2 Class 4 (Affiliate Claims) 23
5.3 Class 5 (Limited Partners' Interests) 24
5.4 Class 6 (General Partners' Interests) 24
ARTICLE VI IMPLEMENTATION OF THE PLAN 24
6.1 General 24
6.2 Plan Funding 25
6.3 Transfer of Real and Related Property 25
(a) Transfer 25
(b) Interim Role of Receiver Pending Transfer 25
6.4 Appointment of Disbursing Agent 27
6.5 Reserve Account - Provisions for Disputed Claims 27
6.6 Unclaimed Property 27
6.7 Vesting 28
6.8 Dissolution and Winding Up of the Debtor 28
6.9 United States Trustee Reporting and Fees 28
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ARTICLE VII TRANSFER OF REAL AND RELATED PROPERTY 29
7.1 Transfer of New York Property and Other New York
Assets 29
(a) Exemption from Transfer Taxes 29
(b) [Reserved] 29
(c) Good Faith Transfer 29
(d) Casualty Event/Condemnation 30
(e) Recordation of New York Deed 30
(f) No Assumption 31
(g) Items to be Delivered on Effective Date 31
(h) Security Deposits 32
(i) Assumption of Payables 32
(j) Further Assurances 33
7.2 Transfer of Texas Property and Other Texas Assets 34
(a) Exemption from Transfer Taxes 34
(b) Effect of Transfer; Waiver 34
(c) Good Faith Transfer 35
(d) Casualty Event/Condemnation 35
(e) Recordation of Texas Deed 35
(f) No Assumption 36
(g) Items to be Delivered on Effective Date 36
(h) Security Deposits 36
(i) [Reserved] 37
(j) Further Assurances 37
ARTICLE VIII RETENTION OF JURISDICTION AND RELEASE 38
8.1 Retention of Jurisdiction 38
8.2 Release of Claims 39
(a) Release 39
(b) Scope of Release 42
(c) Debtor's Claims 43
ARTICLE IX CONDITIONS PRECEDENT TO EFFECTIVE DATE OF PLAN 43
9.1 Conditions to Effective Date 43
(a) Retainers Repaid 44
(b) Affiliate and Related Claims Withdrawn 44
(c) Transfer of IR Vista Management Corp. Claim 44
(d) Performance of Covenants and Agreements 44
(e) Litigation 45
(f) Consummation Documents 45
(g) Confirmation Order 45
(h) Maximum Claims Amount 45
(i) Recordation of New York Deed 45
(j) Title Insurance 46
(k) Delivery of Original Leases, Keys, etc. 46
(1) Notice to Tenants 46
(m) Deadline for Effective Date 46
(n) Tenant Estoppel Letters 46
(o) Mutual Releases 47
9.2 Waiver of Conditions 47
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ARTICLE X EXECUTORY CONTRACTS AND UNEXPIRED LEASES 47
10.1 Deemed Assumption of Executory Contracts and
Unexpired Leases 47
10.2 Assumption and Assignment of Executory Contracts
and Unexpired Leases 48
ARTICLE XI MISCELLANEOUS 49
11.1 Calculation of Time Periods 49
11.2 Withholding Taxes 49
11.3 Headings 49
11.4 Nonconsensual Confirmation 49
11.5 Defects, Omissions and Amendments 49
11.6 Governing Law 50
11.7 Notices 50
11.8 Severability 50
11.9 Revocation or Withdrawal 51
11.10 Effect of Revocation or Withdrawal 51
11.11 Capacity of Pension Fund Trustee 51
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List of Schedules
Schedule 1: New York Accounts
Schedule 2: Legal Description of New York Land
Schedule 3: [Reserved]
Schedule 4: New York Transfer Documents
Schedule 5a: Unexpired Leases and Executory Contracts to be
Assumed and Assigned to the New York Transferee
Schedule 5b: Unexpired Leases and Executory Contracts to be
Assumed and Assigned to the Texas Transferee
List of Exhibits
Exhibit A: Form of New York Deed
Exhibit B: Form of Assignment of New York Ground Lease
Exhibit C: Form of New York Assignment of Leases
Exhibit D: Form of New York Bill of sale
Exhibit E: Form of New York Omnibus Assignment
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Bankers Trust Company, as Trustee for the General Motors Corporation
Hourly-Rate Employes Pension Trust, and as Trustee for the General Motors
Corporation Salaried Employes Pension Trust (the "Pension Fund Trustee"),
proposes the following Plan of Reorganization pursuant to section 1121(a) of the
Bankruptcy Code:
ARTICLE I
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DEFINITIONS
For purposes of this Plan, the following terms shall have the meanings
set forth herein. Unless otherwise indicated, the singular shall include the
plural. Capitalized terms shall at all times refer to the terms as defined in
this Article. Any term used herein that is not defined herein but that is used
in the Bankruptcy Code shall have the meaning assigned to that term under the
Bankruptcy Code. The rules of construction contained in section 102 of the
Bankruptcy Code shall apply to this Plan.
l.l "Administrative Expense" shall mean any cost or expense of
administration of the Bankruptcy Case entitled to priority under section
507(a)(1) and allowed under section 503(b) of the Bankruptcy Code (including,
without limitation, any Allowed Claim for compensation and reimbursement of
Professionals pursuant to section 330 of the Bankruptcy Code), and any fee or
charge assessed against the Debtor under 28 U.S.C. ss. 1930.
1.2 "Administrative Expense Claim" shall mean any Claim for payment of
an Administrative Expense.
1.3 "Affiliate Claims" shall mean the Unsecured Claims of the General
Partners, Presidio Capital Corp., NorthStar Capital Partners LLC, Wexford
Management LLC, and affiliates of such entities.
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1.4 "Allowed" with respect to a Claim shall mean any Claim for which a
proof of claim or request for payment has been filed timely with the Bankruptcy
Court or, if no proof of claim or request for payment is filed timely, which
Claim has been listed by the Debtor in its schedules as liquidated in amount,
not disputed and not contingent and, in all cases, as to which no objection to
the allowance thereof has been interposed within the applicable period of
limitation fixed by the Plan, the Bankruptcy Code, the Bankruptcy Rules or the
Bankruptcy Court; or any Claim for which an objection has been interposed,
following which such Claim has been allowed by a Final Order or otherwise
withdrawn or settled.
1.5 "Assignment of New York Ground Lease" shall mean that certain
Assignment and Assumption of Lease to be entered into as of the Effective Date
between the Debtor, as assignor, and the New York Transferee, as assignee,
pursuant to which the Debtor will assign to the New York Transferee all of its
right, title and interest in, to and under the New York Ground Lease. The
Assignment of New York Ground Lease will contain the terms set forth in, and
will be in substantially the form of, Exhibit B annexed hereto.
1.6 "Assignment of Texas Ground Lease" shall mean that certain
Assignment and Assumption of Lease to be entered into as of the Effective Date
between the Debtor, as assignor, and the Texas Transferee, as assignee, pursuant
to which the Debtor will assign to the Texas Transferee all of its right, title
and interest in, to and under the Texas Ground Lease. The Assignment of Texas
Ground Lease will be in a form acceptable to the Pension Fund Trustee.
1.7 "Bankruptcy Case" shall mean the bankruptcy case commenced by the
Debtor on the Petition Date by the filing of a Voluntary
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Petition for Relief under Chapter 11 of the Bankruptcy Code, which case
is pending in the Bankruptcy Court as Case No. 97-45990-J.
1.8 "Bankruptcy Code" shall mean Title 11 of the United States Code (11
U.S.C. ss.ss. 101, et seq.) as in effect on the Petition Date and as amended
during the Bankruptcy Case, to the extent such amendments are applicable to the
Bankruptcy Case.
1.9 "Bankruptcy Court" shall mean the United States Bankruptcy Court
for the Northern District of California, or the United States District Court for
the Northern District of California with respect to any proceedings for which
said District Court may have withdrawn the reference in accordance with 28
U.S.C. ss. 157(d).
1.10 "Bankruptcy Rules" shall mean the Federal Rules of Bankruptcy
Procedure, effective December 1, 1996, in accordance with the provisions of 28
U.S.C. ss. 2075, as the same have -been and may be amended so as to apply to the
Bankruptcy Case.
1.11 "Business Day" shall mean any day that is not a Saturday, Sunday
or "legal holiday", as that term is defined in Bankruptcy Rule 9006(a).
1.12 "Cash" shall mean all cash and cash equivalents which evidence
immediately available funds in United States dollars.
1.13 "Claim" shall mean a "claim", as such term is defined in section
101(5) of the Bankruptcy Code, against the Debtor.
1.14 "Claimant" shall mean the holder of a Claim.
1.15 "Class" shall mean a category of (i) Claimants holding Claims, or
(ii) holders of Interests in the Debtor, which Claims or Interests are
substantially similar in nature to the Claims or Interests of the other holders
of Claims or Interests in such Class, as classified pursuant to this Plan.
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1.16 "Confirmation Date" shall mean the date on which the Confirmation
Order is entered by the Bankruptcy Court.
1.17 "Confirmation Order" shall mean the order entered in the
Bankruptcy Case confirming the Plan.
1.18 "Debtor" shall mean Vista Properties, a California limited
partnership, and when used in the Plan shall mean, depending on the context of
the use thereof, such limited partnership either (i) as a California limited
partnership prior to the Petition Date or (ii) as a debtor-in-possession in the
Reorganization Case pursuant to sections 1107 and 1108 of the Bankruptcy Code.
1.19 "Debtor's Claims" shall have the meaning set forth in Section
8.2(a) herein.
1.20 "Debtor's Releasing Parties" shall have the meaning set forth in
Section 8.2(a) herein.
1.21 "Disputed" with respect to a Claim or Interest shall mean a Claim
or Interest as to which the Pension Fund Trustee or any other party in interest
has interposed a timely objection or which is otherwise disputed by a party in
interest in accordance with applicable law, which objection or dispute has not
been withdrawn or determined by Final Order.
1.22 "Effective Date" shall mean (a) such date as the Pension Fund
Trustee shall fix which shall be not more than sixty days following Confirmation
or (b) such other date as the Bankruptcy Court shall authorize; provided,
however, that the Effective Date shall not occur unless all of the conditions
precedent to the effectiveness of the Plan shall have been either satisfied or
waived in accordance with Section 9.2 of the Plan.
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1.23 "Emigrant" shall mean Emigrant Savings Bank and/or Emigrant
Mortgage Company, Inc., as the context may require.
1.24 "Final Order" shall mean an order, judgment or decree of the
Bankruptcy Court as entered on the legal docket of the Bankruptcy Case
maintained by the Clerk of the Bankruptcy Court that (a) has not been reversed,
stayed, modified or amended and as to which the time to appeal or petition for
certiorari has expired and as to which no appeal, reargument, petition for
certiorari, or rehearing is pending or as to which any right to appeal or
petition for certiorari has been waived in writing or, (b) if an appeal,
reargument, petition for certiorari, or rehearing thereof has been denied, the
time to take any further appeal or to seek certiorari has expired; provided,
however, that no order, judgment or decree shall fail to be a Final Order
because of the possibility that a motion pursuant to Rule 60 of the Federal
Rules of Civil Procedure may be filed with respect to such order, judgment or
decree.
1.25 "General Partners" shall mean, collectively, IR Vista Realty
Corp., IR Acquisition Corp., and Asta Associates Limited Partnership in their
respective capacities as general partners of the Debtor.
1.26 "Interest" shall mean an existing ownership interest in the
Debtor, including any "equity security" of the Debtor as such term is defined in
section 101(16) of the Bankruptcy Code.
1.27 "Lien" shall mean a charge against or interest in property to
secure payment of a debt or performance of an obligation.
1.28 "Limited Partners" shall mean, collectively, the limited partners
of the Debtor.
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1.29 "New York Accounts" shall mean, collectively, the accounts
identified on Schedule l annexed hereto.
1.30 "New York Assignment of Leases" shall mean that certain Assignment
of Landlord's Interest in Leases to be entered into as of the Effective Date
between the Debtor and the Receiver, as assignors, and the New York Transferee,
as assignee, pursuant to which the Debtor and the Receiver will assign to the
New York Transferee all of their respective rights, title and interest in, to
and under all leases demising space in the New York Property. The New York
Assignment of Leases will contain the terms set forth in, and will be in
substantially the form of, Exhibit C annexed hereto.
1.31 "New York Bill of Sale" shall mean that certain Bill of Sale to be
executed and delivered as of the Effective Date between the Debtor and the
Receiver, as sellers, in favor of the New York Transferee, as buyer, pursuant to
which the Debtor and the Receiver will transfer to the New York Transferee all
of their right, title and interest in and to the New York Personal Property. The
New York Bill of Sale will contain the terms set forth in, and will be in
substantially the form of, Exhibit D annexed hereto.
1.32 "New York Deed" shall mean that certain bargain and sale deed with
covenant against grantor's acts to be executed and delivered as of the Effective
Date by the Debtor, as grantor, in favor of the New York Transferee, as grantee,
pursuant to which the Debtor will convey fee simple title to the New York
Improvements to the New York Transferee. The New York Deed will contain the
terms set forth in, and will be in substantially the form of, Exhibit A annexed
hereto.
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1.33 "New York Ground Lease" shall mean that certain Agreement of
Lease, dated as of April 1, 1961, between New York State Realty and Terminal
Company, as landlord, and 250 Park Avenue Corporation, as tenant, recorded in
the New York Register's Office on May 19, 1961 in Liber 5150 of Conveyances,
Page 371, as amended by that certain Agreement, dated December 28, 1977, between
Febe Associates, as landlord, and 250 Park Avenue Corporation, as tenant,
recorded on December 30, 1977 in the New York Register's Office in Reel 423,
Page 657. The Debtor is the successor tenant under the New York Ground Lease,
and the Pension Fund Trustee is the successor landlord under the New York Ground
Lease.
1.34 "New York Improvements" shall mean, collectively, all of the
buildings, structures and other improvements, including the building fixtures
therein, now or hereafter located on the New York Land.
1.35 "New York Indebtedness" shall mean the indebtedness of the Debtor
to the Pension Fund Trustee evidenced by, and now or hereafter outstanding
under, the New York Notes and the New York Security Instruments.
1.36 "New York Land" shall mean the real property demised pursuant to
the New York Ground Lease. A metes and bounds description of the New York Land
is annexed hereto as Schedule 2.
1.37 "New York Mortgages" shall mean, collectively, (a) that certain
First Wraparound Mortgage, dated as of January 4, 1984, from Park 250
Associates, as mortgagor, to the Pension Fund Trustee, as mortgagee, as amended
by that certain First Amendment to Wraparound Mortgage, also dated as of January
4, 1984, among Park 250 Associates, Vista Properties and the Pension Fund
Trustee, securing
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payment of the Superior Mortgage Note, and (b) that certain Purchase Money
Wraparound Mortgage, dated as of January 4, 1984, from Vista Properties, as
mortgagor, to the Pension Fund Trustee, as mortgagee, securing payment of the
Purchase Money Wraparound Note.
1.38 "New York Notes" shall mean the Superior Mortgage Note and the
Purchase Money Wraparound Note, collectively.
1.39 "New York Omnibus Assignment" shall mean that certain Omnibus
Assignment to be executed and delivered as of the Effective Date by the Debtor
and the Receiver, as assignors, in favor of the New York Transferee, as
assignee, pursuant to which the Debtor and the Receiver will assign to the New
York Transferee all of their respective rights, title and interest in, to and
under all of the Other New York Assets. The New York Omnibus Assignment will
contain the terms set forth in, and will be in substantially the form of,
Exhibit E annexed hereto.
1.40 "New York Permitted Exceptions" shall mean, collectively, (a) the
Liens and security interests created pursuant to the New York Mortgages and the
other New York Security Instruments, (b) any other Liens securing the New York
Indebtedness and (c) any other title exceptions which shall be acceptable to the
Pension Fund Trustee in its sole and absolute discretion.
1.41 "New York Personal Property" shall mean all equipment and other
personal property located on or used in connection with the New York
Improvements.
1.42 "New York Property" shall mean, collectively, (a) the New York
Improvements, (b) the leasehold interest in the New York Land under the New York
Ground Lease, and (c) the New York Personal Property.
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1.43 "New York Register's Office" shall mean the Office of the Register
of the City of New York in the County of New York.
1.44 "New York Security Instruments" shall mean, collectively, the New
York Mortgages, and any and all other instruments, whenever executed, in
connection with or as security for the New York Notes, as the same may have been
modified, amended, renewed or extended from time to time.
1.45 "New York Transfer Documents" shall mean, collectively, the New
York Deed, the New York Bill of Sale, the Assignment of New York Ground Lease,
the New York Assignment of Leases, the New York Omnibus Assignment and any other
documents necessary or appropriate to effect the transfer of the New York
Property and the Other New York Assets to the New York Transferee in accordance
with the applicable provisions of the Plan, including, without limitation, the
instruments and other documents listed in Schedule 4 annexed hereto.
1.46 "New York Transferee" shall mean a legal, domestic entity to be
formed prior to the Effective Date and owned, directly or indirectly, in whole
or in part, by the Pension Fund Trustee or one or more of its affiliates.
1.47 "Other New York Assets" shall mean, collectively, all of the
Debtor's right, title and interest in and to all receivables, bank accounts,
contract rights, choses in action and other assets relating to the New York
Property, including, without limitation, all Cash, all undeposited checks and
all funds in the New York Accounts and all real estate leases relating to the
New York Property, together with all security given for any of such leases in
any form, including Cash, guaranties and letters of credit.
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1.48 "Other Texas Assets" shall mean, collectively, all of the Debtor's
right, title and interest in and to all receivables, bank accounts, contract
rights, choses in action and other assets relating to the Texas Property,
including, without limitation, all Cash, all undeposited checks, and all real
estate leases relating to the Texas Property, together with all security given
for any of such leases in any form, including Cash, guaranties and letters of
credit.
1.49 "Paying Agent" shall mean State Street Bank and Trust Company or
any successor to the rights, duties, and obligations of State Street Bank and
Trust Company under the Paying Agent and Agency Agreement dated January 4, 1984.
1.50 "Pension Fund Trustee" shall have the meaning set forth in the
preamble to this Plan.
1.51 "Person" shall mean an individual, corporation, partnership, joint
venture, trust, estate, unincorporated association, or organization,
governmental entity or political subdivision thereof, or any other entity.
1.52 "Petition Date" shall mean June 19, 1997, the date of the filing
of the Bankruptcy Case by the Debtor.
1.53 "PFT Obligations" shall have the meaning set forth in Section
8.2(a) herein.
1.54 "PFT Remedies" shall have the meaning set forth in Section 8.2(a)
herein.
1.55 "Plan" shall mean this plan of reorganization, as the same may be
modified in accordance with the applicable provisions hereof and of applicable
law.
1.56 "Plan Fund" means a segregated, interest-bearing fund to
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be established on or before the Effective Date and maintained by the Pension
Fund Trustee or its designee, as provided in Article VI of the Plan.
1.57 "Priority Claim" shall mean that portion of an Allowed Claim, if
any, which is entitled to priority under section 507(a) of the Bankruptcy Code,
exclusive of Tax Claims and Administrative Expense Claims.
1.58 "Pro Rata" shall mean the ratio of an Allowed Claim or Interest in
a particular Class to the aggregate amount of all Allowed Claims or Interests in
that Class.
l.S9 "Professionals" shall mean those Persons (a) retained pursuant to
an order of the Bankruptcy Court in accordance with section 327 of the
Bankruptcy Code and to be compensated for services rendered prior to the
Confirmation Date pursuant to section 330 of the Bankruptcy Code; or (b) for
which compensation and reimbursement has been allowed by the Bankruptcy Court
pursuant to section 503(b)(4) of the Bankruptcy Code.
1.60 "Purchase Money Wraparound Note" shall mean that certain Purchase
Money Mortgage Note, dated as of January 4, 1984, executed by Vista Properties,
as maker, in favor of the Pension Fund Trustee, as payee, in the original
principal amount of 590,160,000.
1.61 "Receiver" shall mean Darrell L. Paster, Esq., not in his
individual capacity, but solely in his capacity as receiver of the New York
Property.
1.62 "Receiver Account" shall mean that certain Money Management
Account maintained by the Receiver, account number 19251619, and held at
Citibank, N.A., 399 Park Avenue, New York, New York.
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1.63 "Receiver's Agent" shall mean, collectively, (a) S.L. Green
Management Corp. and S.L. Green Realty, Inc., in their respective capacities as
managing agent and leasing agent for the New York Property pursuant to that
certain Agreement, dated as of November 14, 1996 (the "SL Green Agreement"),
between the Receiver and such corporations, and (b) Colliers ABR, Inc., in its
capacity as leasing agent for the New York Property pursuant to the SL Green
Agreement and that certain letter agreement dated November 13, 1996, by and
between Benjamin P. Feldman of S.L. Green Realty, Inc. and Robert L. Billingsley
of Colliers ABR, Inc.
1.64 "Receiver Payables" shall mean, collectively, all costs and
expenses payable by or on behalf of the Receiver in connection with the
ownership or operation of the New York Property, to the extent such costs and
expenses (a) were incurred in the ordinary course of business for goods and
services relating to the New York Property and in accordance with applicable
provisions of the Receivership Orders, (b) are not required to be paid on or
prior to the Effective Date pursuant to the Plan, and (c) are, in whole or in
part, Allowed Administrative Expense Claims.
1.65 "Receivership Orders" shall mean, collectively, (a) that certain
Order Authorizing Receiver to Pay Obligations Incurred in the Management of the
New York Property, entered by the Bankruptcy Court on August 25, 1997, (b) that
certain Order Excusing Receiver's Turnover Obligations and Dismissing Debtor's
Emergency Motion, entered by the Bankruptcy Court on September 2, 1997, and (c)
that certain Amended Order Appointing Receiver, dated December 13, 1996, entered
by the Supreme Court of the State of New York (as modified by the orders entered
by the Bankruptcy Court), as such orders may
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be modified or supplemented from time to time with the consent of the Pension
Fund Trustee subsequent to the dates of their entry.
1.66 "Reserve Account" shall mean the segregated reserve account to be
established pursuant to Section 6.5 of the Plan into which distributions
respecting Disputed Claims shall be deposited.
1.67 "Reserve Amount" shall mean the Cash to be reserved for the
satisfaction of Disputed Claims pursuant to Section 6.5 of the Plan.
1.68 "Schedules" shall mean, collectively, the schedules of assets and
liabilities filed by the Debtor in accordance with section 521 of the Bankruptcy
Code and Bankruptcy Rule 1007 on June 19, 1997, as thereafter amended.
1.69 "Superior Mortgage Note" shall mean that certain Purchase Money
Mortgage Note, dated as of January 4, 1984, executed by Park 250 Associates, as
maker, in favor of the Pension Fund Trustee, as payee, in the original principal
amount of 560,000,000-
1.70 "Tax Claim" shall mean that portion of an Allowed Claim of a
governmental unit, if any, which is entitled to priority under section 507(a)(8)
of the Bankruptcy Code.
1.71 "Texas Assignment of Leases" shall mean an Assignment of
Landlord's Interest in Leases to be entered into as of the Effective Date
between the Debtor, as assignor, and the Texas Transferee, as assignee, pursuant
to which the Debtor will assign to the Texas Transferee all of its rights, title
and interest in, to and under all leases demising space in the Texas Property.
The Texas Assignment of Leases will be in a form acceptable to the Pension Fund
Trustee.
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1.72 "Texas Bill of Sale" shall mean a Bill of Sale to be executed and
delivered as of the Effective Date between the Debtor, as seller, in favor of
the Texas Transferee, as buyer, pursuant to which the Debtor will transfer to
the Texas Transferee all of its right, title and interest in and to the Texas
Personal Property. The Texas Bill of Sale will be in a form acceptable to the
Pension Fund Trustee.
1.73 "Texas Contracts and Leases" shall mean all executory contracts
and unexpired leases of the Debtor which relate to the Texas Property.
1.74 "Texas Deed" shall mean that special warranty deed to be executed
and delivered as of the Effective Date by the Debtor, as grantor, in favor of
the Texas Transferee, as grantee, pursuant to which the Debtor will convey fee
simple title to the Texas Improvements to the Texas Transferee. The Texas Deed
will be in a form acceptable to the Pension Fund Trustee.
1.75 "Texas Ground Lease" shall mean that certain ground lease entered
into by the Debtor as of December 15, 1983, pursuant to which the Debtor
obtained a 99-year leasehold interest in the land upon which the Texas
Improvements are located.
1.76 "Texas Improvements" shall mean, collectively, all of the
buildings, structures and other improvements, including the building fixtures
therein, now or hereafter located on the Texas Land.
1.77 "Texas Land" shall mean the real property demised pursuant to the
Texas Ground Lease.
1.78 "Texas Mortgagee" shall mean NationsBank Texas, N.A.,
successor-in-interest to RepublicBank Dallas, N.A., in its capacity as trustee
for 4441 Airport Corp. under the terms of the Texas
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Mortgage Loan Documents, or any successor trustee.
1.79 "Texas Mortgage Loan Documents" shall mean, collectively, (a) that
certain Deed of Trust Note, dated December 15, 1983, executed by the Debtor in
favor of RepublicBank Dallas, N.A. (predecessor-in-interest to the Texas
Mortgagee), as the same may have been modified or amended, (b) the Texas
Mortgage, and (c) any and all other agreements, instruments and documents
evidencing or securing any Claim by the Texas Mortgagee against the Debtor or
its property.
1.80 "Texas Mortgage" shall mean that certain Deed of Trust, dated
December 15, 1983, executed by the Debtor in favor of Billy J. Harris, as
trustee, and RepublicBank Dallas, N.A. (predecessor-in-interest to the Texas
Mortgagee), as beneficiary, covering the Texas Property, as the same may have
been modified or amended.
1.81 "Texas Omnibus Assignment" shall mean an Omnibus Assignment to be
executed and delivered as of the Effective Date by the Debtor, as assignor, in
favor of the Texas Transferee, as assignee, pursuant to which the Debtor will
assign to the Texas Transferee all of its rights, title and interest in, to and
under all of the Other Texas Assets. The Texas Omnibus Assignment will be in a
form acceptable to the Pension Fund Trustee.
1.82 "Texas Personal Property" shall mean all equipment and other
personal property located on or used in connection with the Texas Improvements.
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1.83 "Texas Property" shall mean, collectively, (a~ the Texas
Improvements, (b) the leasehold interest in the Texas Land under the Texas
Ground Lease, and (c) the Texas Personal Property.
1.84 "Texas Transfer Documents" shall mean, collectively, the Texas
Deed, the Texas Bill of Sale, the Assignment of Texas Ground Lease, the Texas
Assignment of Leases, the Texas Omnibus Assignment and any other documents
necessary or appropriate to effect the transfer of the Texas Property, the Other
Texas Assets and all related property to the Texas Transferee in accordance with
the applicable provisions of the Plan.
1.85 "Texas Transferee" shall mean either (a) the Texas Mortgagee or
(b) a legal, domestic entity, or the trustee of a trust for the benefit of a
legal, domestic entity, formed or to be formed prior to the Effective Date and
owned or controlled, directly or indirectly, in whole or in part, by (i) the
Texas Mortgagee or one or more of its affiliates or (ii) the Police and Fireman
Retirement System for the City of Detroit.
1.86 "Transfer Taxes" shall mean, collectively, (a) any New York State
Real Estate Transfer Taxes imposed under Article 31 of the New York Tax Law, any
New York City Real Property Transfer Taxes imposed under section 11-2102 of the
New York City Administrative Code, (b) similar taxes, charges, fees, or
assessments arising under the laws of the State of Texas or any political
subdivision thereof, and (c) any other tax within the purview of section 1146(c)
of the Bankruptcy Code.
1.87 "Unsecured Claim" shall mean that portion of an Allowed Claim
which is not an Administrative Expense Claim, Priority Claim, Tax Claim or
secured Claim, and shall include, without limitation, a
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Claim of any Person arising under section 506(a) of the Bankruptcy Code to the
extent not secured.
ARTICLE II
----------
PAYMENT OF ALLOWED ADMINISTRATIVE EXPENSE CLAIMS
AND ALLOWED TAX CLAIMS
2.1 Non-Classification. As provided in section 1123(a)(1) of the
Bankruptcy Code, Administrative Expense Claims and Tax Claims against the Debtor
are not classified for the purposes of voting on or receiving distributions
under the Plan. All such Claims are, instead, treated separately as unclassified
Claims on the terms set forth in this Article II.
2.2 Administrative Expense Claims. All Administrative Expense Claims
shall be paid, in full, in Cash, in such amounts as are incurred in the ordinary
course of business by the Debtor and/or the Receiver, or in such amounts as such
Administrative Expense Claims are allowed by the Bankruptcy Court (a) upon the
later of the Effective Date or the date upon which there is a Final Order
allowing such Administrative Expense Claims or (b) upon such other terms as may
exist due to the ordinary course of the business of the Debtor and/or Receiver
or (c) as may be agreed upon between the holders of such Administrative Expense
Claims and the Pension Fund Trustee.
2.3 Tax Claims. Allowed Tax Claims shall be paid in full, in Cash, upon
the latest of (a) the Effective Date, (b) the date upon which there is a Final
Order allowing such Claim as an Allowed Tax Claim if an objection has been
timely raised as to the allowance of such Claim as an Allowed Tax Claim, (c) the
date that such Allowed Tax Claim would have been due if the Bankruptcy Case had
not been
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commenced, or (d) upon such other terms as may be agreed to between the Pension
Fund Trustee and any holder of an Allowed Tax Claim; provided, however, that the
Pension Fund Trustee may, at its option, in lieu of payment in full of Allowed
Tax Claims on the Effective Date, make Cash payments respecting Allowed Tax
Claims, deferred to the extent permitted by section 1129(a)(9)(C) of the
Bankruptcy Code and, in such event, interest shall be paid on the unpaid portion
of such Allowed Tax Claim at a rate to be agreed to by the Pension Fund Trustee
and the appropriate governmental unit or, if they are unable to agree, as
determined by the Bankruptcy Court. All Allowed Tax Claims that by their terms
become due and payable after the Confirmation Date shall be paid when due.
2.4 Professional Fees.
(a) Final applications for fees of Professionals for services rendered
in connection with the Bankruptcy Case and the Plan prior to the Confirmation
Date shall be filed with the Bankruptcy Court within forty-five (45) days after
the Confirmation Date. All Professional fees for services rendered in connection
with the Bankruptcy Case and the Plan after the Confirmation Date, including
those related to the resolution of Disputed Claims, may be paid without further
Bankruptcy Court review or authorization.
(b) Fees for services, costs, and expenses incurred by the Pension Fund
Trustee, including fees, costs, and expenses of attorneys and experts employed
by the Pension Fund Trustee shall be paid by the Pension Fund Trustee in the
ordinary course of business and shall not affect distributions to creditors
under this Plan. All such fees, costs, and expenses are subject to Bankruptcy
Court approval and, upon request of the Bankruptcy Court or written
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request of a party in interest made on or before the Confirmation Date, the
Pension Fund Trustee shall submit such fees, costs, and expenses to the
Bankruptcy Court for approval as reasonable. If no request for review is made,
the Pension Fund Trustee shall be authorized to make full and final payment for
all services, costs, and expenses incurred in connection with the Bankruptcy
Case and the Plan without further action or order of the Bankruptcy Court.
ARTICLE III
-----------
CLASSIFICATION OF CLAIMS
AND INTERESTS
3.1 Criterion of Class. A Claim or an Interest is in a particular Class
only to the extent that such Claim or Interest qualifies within the description
of that Class and is in a different Class to the extent that the remainder of
the Claim OF Interest qualifies within the description of the different Class.
3.2 Allowed Claims and Interests. All Allowed Claims and Interests are
divided into the following Classes, which Classes shall be mutually exclusive:
(a) Class 1 (Priority Claims). Class 1 shall consist of all
Allowed Priority Claims. Class 1 is not impaired.
(b) Class 2A "Texas Mortgagee Claim". Class 2A shall consist
of the Claim of the Texas Mortgagee in the amount of $16,380,111, as reflected
in Schedule D of the Schedules. Class 2A is not impaired.
(c) Class 2B (Pension Fund Claim). Class 2B shall consist of
the Claim filed by the Pension Fund Trustee on or about October 27, 1997, as
thereafter amended. Class 2B is impaired.
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(d) Class 3 (Allowed Unsecured Claims). Class 3 shall consist
of all Allowed Unsecured Claims other than Claims in Class 4. class 3 is not
impaired.
(e) Class 4 (Affiliate Claims). Class 4 shall consist of all
Affiliate Claims. Class 4 is impaired.
(f) Class 5 (Limited Partners' Interests). Class S shall
consist of all Interests in the Debtor held by Limited Partners. Class 5 is
impaired.
(g) Class 6 (General Partners' Interests). Class 6 shall
consist of all Interests in the Debtor held by General Partners. Class 6 is
impaired.
3.3 Impaired and Unimpaired Classes. Classes 1, 2A, and 3 are not
impaired under the Plan. Classes 2B, 4, S and 6 are impaired under the Plan. In
the event of a controversy as to whether any Claimants or holders of Interests
are impaired, the Bankruptcy Court shall, after appropriate notice and hearing,
determine such controversy.
ARTICLE IV
----------
TREATMENT OF CLAIMS NOT IMPAIRED UNDER THE PLAN
4.1 Class 1 (Allowed Priority Claims). All Allowed Priority Claims
shall be paid in full, in Cash, in such amounts as are incurred in the ordinary
course of business by the Debtor or the Receiver, or in such amounts as such
Claims are allowed by the Bankruptcy Court (a) upon the later of the Effective
Date or the date upon which the Bankruptcy Court enters a Final Order allowing
such Priority Claim; or (b) upon such other terms as may be agreed to between
the Pension Fund Trustee and any holder of an Allowed Priority Claim.
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4.2 Class 2A (Texas Mortgagee Claim). As to the Claim of the Texas
Mortgagee, on the Effective Date, the Texas Property will be transferred to the
Texas Transferee according to such terms as are agreed to between the Pension
Fund Trustee and the Texas Mortgagee.
4.3 Class 3 (Unsecured Claims). All Allowed Unsecured Claims shall be
paid in full, in Cash, with interest accruing from the Petition Date at the rate
of nine percent (9%) per annum simple interest or at such other rate of interest
as the holder of such Allowed Unsecured Claim shall request and be entitled to
under contract, in such amounts as such Claims are Allowed by the Bankruptcy
Court (a~ upon the later of the Effective Date or the date upon which the
Bankruptcy court enters a Final Order allowing such Unsecured Claim; or (b) upon
such other terms as may be agreed to between the Pension Fund Trustee and any
holder of such Allowed Unsecured Claim.
ARTICLE V
---------
TREATMENT OF CLAIMS AND INTERESTS
THAT ARE IMPAIRED UNDER THE PLAN
5.1 Class 2B (Pension Fund Claim).
(a) In full satisfaction, release and discharge of the Debtor
s obligations for the Allowed Claim of the Pension Fund Trustee (but without
extinguishing the New York Indebtedness), on the Effective Date and pursuant to
section 1123(a)(5)(D) of the Bankruptcy Code, the Debtor shall transfer the New
York Property and the Other New York Assets to the New York Transferee, free and
clear of all Liens, claims, rights, interests and encumbrances (including,
without limitation, all mechanic s liens or environmental judgments or any other
similar Liens of any kind whatsoever), other than the
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New York Permitted Exceptions. Such transfer shall be effected on the Effective
Date by the Debtor executing and delivering the New York Transfer Documents to
the New York Transferee. In addition, and concurrently with such transfer, (i)
the Debtor and the Receiver shall deliver, and shall cause the Paying Agent and
the Receiver's Agent to deliver to the Pension Fund Trustee, all Cash and
undeposited checks then held by the Debtor, the Receiver, the Paying Agent and
the Receiver's Agent, (ii) the Debtor and the Receiver shall, and shall cause
the Paying Agent and the Receiver's Agent to, direct all banks at which the New
York Accounts are maintained to remit to the Pension Fund Trustee, by wire
transfer of immediately available funds on the Effective Date to an account
specified by the Pension Fund Trustee, all funds held in such New York Accounts
(net of amounts to be paid from such accounts, and reserves required or
permitted to be established in such accounts, on the Effective Date under the
Plan), and (iii) Emigrant shall remit to the Pension Fund Trustee, by wire
transfer of immediately available funds on the Effective Date, all funds in its
possession relating to the New York Property, including, without limitation,
funds held in any tax escrow account.
(b) Notwithstanding anything in the Plan or elsewhere to the
contrary, neither the entry of the Confirmation Order nor the transfer of the
New York Property and the Other New York Assets and the delivery and recording
of the New York Transfer Documents in accordance with the provisions of the Plan
shall alter or affect the validity, extent or priority of the New York
Indebtedness or the Liens securing the New York Indebtedness, including, without
limitation, the Liens created pursuant to the New York Mortgages and
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the other New York Security Instruments. The New York Indebtedness, and the
Liens by which the New York Indebtedness is secured, shall remain outstanding
and in full force and effect, and shall continue to constitute "bona fide"
indebtedness, as such term is used in section 275 of the New York Real Property
Law. Upon the transfer of the New York Property and the Other New York Assets
and the delivery and recording of the New York Transfer Documents in accordance
with the provisions of the Plan, the Debtor and the General Partners shall be
deemed, without the need for any further act or instrument, to be released and
discharged from any further liability for the payment of the New York
Indebtedness, but the New York Indebtedness shall not be extinguished, and the
New York Notes, the New York Mortgages and the other New York Security
Instruments shall remain outstanding and in full force and effect and the Liens
created by the New York Mortgages and the other New York Security Instruments
shall also remain in full force and effect. The Allowed Claim of the Pension
Fund Trustee, as reduced in accordance with the provisions of Section 5.1(c) of
the Plan, shall continue to be evidenced by the New York Notes and secured by
the New York Mortgages and the other New York Security Instruments.
(c) The Pension Fund Trustee shall be entitled to retain all
of the payments, if any, received by the Pension Fund Trustee from the Receiver
pursuant to the Receivership orders on or prior to the Effective Date. Such
payments shall be deemed to have been applied in reduction of the Pension Fund
Trustee's Allowed Claim to the extent provided in the Receivership orders.
5.2 Class 4 (Affiliate Claims"). All holders of Allowed Affiliate
Claims shall be paid their respective Pro Rata shares of
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all Cash in the Plan Fund after all Administrative Expense Claims, Tax Claims,
and Claims in Classes 1 and 3 are paid in full, in such amounts as such Claims
are Allowed (a) upon the later of the Effective Date or the date upon which the
Bankruptcy Court enters a Final Order allowing such Affiliate Claim; or (b) upon
such other terms as may be agreed to between the Pension Fund Trustee and any
holder of an Allowed Affiliate Claim. In no event shall any holder of an Allowed
Affiliate Claim receive distributions in excess of the face amount of such
Allowed Affiliate Claim.
5.3 Class 5 (Limited Partners' Interests). All Interests in the Debtor
held by Limited Partners shall be cancelled, annulled and extinguished as of the
Effective Date, and holders of such Interests shall not be entitled to receive
or retain any property or interest in property under the Plan on account of such
Interest.
5.4 Class 6 (General Partners' Interests). All Interests in the Debtor
held by General Partners shall be cancelled, annulled and extinguished as of the
Effective Date and holders of such Interests shall not be entitled to receive or
retain any property or interest in property under the Plan on account of such
Interest.
ARTICLE VI
----------
IMPLEMENTATION OF THE PLAN
6.1 General. The Debtor, the General Partners, the Pension Fund
Trustee, the Receiver, the New York Transferee, the Texas Mortgagee, the Texas
Transferee, Emigrant, and all other Persons shall take all actions and shall
execute all documents as may be necessary or advisable to consummate the Plan as
herein set forth and the transactions contemplated by the Plan, so long as such
actions and documents do not impose any additional financial
24
<PAGE>
obligations on such parties other than those provided for herein and are in
accordance with the Pension Fund Trustee's obligations under the Employee
Retirement Income Security Act and this Plan.
6.2 Plan Funding. Cash from each of the following sources shall be
deposited in the Plan Fund on or before the Effective Date:
(a) All Cash retainers returned to the Debtor by or on behalf
of its Professionals; and
(b) Cash collateral of the Pension Fund Trustee and held by
the Receiver in the amount of One Million Dollars ($1, 000, 000) .
Payments required to be made under the Plan after the Effective Date
shall be funded by the New York Transferee to the extent the payments are in
respect of Receiver Payables assumed by the New York Transferee pursuant to
Section 7.1(i) of the Plan. All other payments required to be made after the
Effective Date shall be paid from the Reserve Account. Excess funds held in the
Plan Fund (exclusive of funds held in the Reserve Account) after the Effective
Date, if any, shall be paid to the Pension Fund Trustee.
6.3 Transfer of Real and Related Property.
(a) Transfer. The Debtor's real and related property holdings
in New York and Texas shall be transferred as provided in Article VII hereof.
After the Effective Date, the Debtor shall not have any claim against or
interest in the property so transferred.
(b) Interim Role of Receiver Pending Transfer. The
Receivership Orders, as the same shall have been modified or supplemented with
the Pension Fund Trustee~s consent through the Confirmation Date, shall remain
in full force and effect through the Effective Date. The Receivership Orders
shall be modified by the Confirmation Order (i) to provide that on the Effective
Date the
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Receiver shall, and shall cause the Receiver's Agent to, cease depositing funds
into, and disbursing funds from, the Receiver Account as currently required
under the Receivership Orders (except that disbursements may be made to honor
checks drawn against the Receiver Account by the Receiver or the Receiver's
Agent prior to the Effective Date and presented for payment after the Effective
Date, provided that any disbursements made to honor such checks shall not exceed
the respective amounts of such checks), (ii) to require that $1,000,000 in Cash
be transferred from the Receiver Account into the Plan Fund on or immediately
after the Confirmation Date, and (iii) to require that all Cash in the Receiver
Account (except for an amount equal to checks drawn against the Receiver Account
by the Receiver or the Receiver's Agent prior to the Effective Date which were
not presented for payment and paid by the close of business on the Effective
Date) be turned over to the Pension Fund Trustee or its designee by close of
business on the Business Day immediately following the Effective Date. Any funds
reserved in but not disbursed from the Receiver Account after the Effective Date
to honor checks drawn against the Receiver Account prior to the Effective Date,
together with interest earned on the Receiver Account from and after the
Effective Date, shall be turned over to the Pension Fund Trustee or its designee
as soon as practicable but in no event more than 180 days after the Effective
Date.
(c) Operation of Texas Propertv Pending Transfer. The
operation of the Texas Property is subject to various agreements which exist
between the Debtor and the Texas Mortgagee, as well as prior orders of the
Bankruptcy Court. Pending the transfer of the
26
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Texas Property contemplated herein, all operations of the Texas Property will
continue in accordance with these agreements and the Bankruptcy Court's prior
orders. Notwithstanding anything to the contrary in the foregoing, that certain
Agreement dated December 5, 1996 between the Debtor and the Texas Mortgagee, as
amended, shall be deemed null and void and be of no further force or effect.
6.4 Appointment of Disbursing Agent. From and after the Effective Date,
the Pension Fund Trustee (or such other entity as the Pension Fund Trustee may
designate) will act as Disbursing Agent. On the Effective Date, the Disbursing
Agent will have the authority to make distributions from the Plan Fund.
6.5 Reserve Account - Provisions for Disputed Claims.
(a) Except to the extent the Court shall determine that a
lesser amount is adequate, on the Effective Date the Disbursing Agent shall
establish a Reserve Account (which may be commingled with the Plan Fund) in an
amount equal to the distributions that would have been made to holders of
Disputed Claims if such Claims were Allowed Claims on the Effective Date.
(b) To the extent a Disputed Claim ultimately becomes an
Allowed Claim in an amount less than the Reserve Amount for such Claim, the
resulting surplus shall revert to the Pension Fund Trustee.
6.6 Unclaimed Property. Any Person who fails to claim a distribution
under the Plan within six months after the Effective Date, or within six months
after such later date as a Claim becomes an Allowed Claim, shall forfeit all
rights to any distribution under the Plan and shall have no Claim whatsoever
against the Debtor or
27
<PAGE>
the Pension Fund Trustee or any holder of an Allowed Claim to whom distributions
are made. Any distribution so forfeited shall automatically become the property
of the Pension Fund Trustee, free from further claim from such Person or any
holder of an Allowed Claim. The foregoing shall apply to checks issued by the
Disbursing Agent but not delivered to or received by such Person, provided that
the Disbursing Agent shall make a reasonable effort to locate any Person
entitled to a distribution not delivered to or received by such Person.
6.7 Vesting. Except as otherwise provided by the Plan, upon the
Effective Date, title to all properties and assets dealt with by the Plan (other
than the Texas Property and the Other Texas Assets) shall pass to the New York
Transferee free and clear of all Claims and Interests, including Liens or other
encumbrances, of creditors and of equity security holders.
6.8 Dissolution and Winding UP of the Debtor. As soon as practicable
after the Effective Date, the Pension Fund Trustee and the Debtor shall be
jointly authorized, but not required, to dissolve and wind up the Debtor as a
California limited partnership. Consummation of this Plan shall constitute the
winding up of the Debtor and no actions other than those required by this Plan
shall be required to discharge these tasks. Each of the Pension Fund Trustee and
the Debtor shall be authorized to take all actions, including execution of a
certificate of dissolution, necessary to exercise its rights hereunder.
6.9 United States Trustee Reporting and Fees. The Pension Fund Trustee
or its designee shall file post-confirmation quarterly reports in the format
prescribed by the United States Trustee, and
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shall continue to pay quarterly fees due to the United States Trustee under 28
U.S.C. ss. 1930(a)(6) until the entry of a final decree or an order converting
or dismissing the case.
ARTICLE VII
-----------
TRANSFER OF REAL AND RELATED PROPERTY
7.1 Transfer of New York Property and Other New York Assets. As of the
Effective Date, the New York Property and the Other New York Assets shall be
transferred to the New York Transferee pursuant to the New York Transfer
Documents, free and clear of all claims, interests, rights, Liens and
encumbrances, other than the New York Permitted Exceptions, as set forth in
Section 5.1 of the Plan.
(a) Exemption from Transfer Taxes. Pursuant to section 1146(c)
of the Bankruptcy Code, the transfer of the New York Property to the New York
Transferee, as provided for in Section 5.1 of the Plan and this Section 7.1,
shall be exempt from the imposition and payment of any and all Transfer Taxes.
The New York Register's Office shall record the New York Deed, the Assignment of
New York Ground Lease and any other recordable New York Transfer Documents
without the payment of any Transfer Taxes. Additionally, in the event the
Pension Fund Trustee or the New York Transferee shall seek to record the
Confirmation Order, the New York Register's Office shall record the Confirmation
Order without the payment of any Transfer Taxes.
(b) [Reserved].
(c) Good Faith Transfer. Each of the Debtor, the Receiver, the
Pension Fund Trustee and the New York Transferee shall be deemed to have acted
in "good faith", within the meaning of sections 363(m) and 1129(a)(3j of the
Bankruptcy Code, in delivering
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and accepting, respectively, title to the New York Property and the New York
Transfer Documents. In connection with the transfer of the New York Property and
the delivery of the New York Transfer Documents to the New York Transferee, as
provided for in the Plan, the New York Transferee and all parties in interest in
the Bankruptcy Case shall be entitled to the protections afforded by section
363(m) of the Bankruptcy Code.
(d) Casualty Event/Condemnation. Unless the Pension Fund
Trustee shall in the exercise of its sole and absolute discretion determine
otherwise (or unless the Debtor has defaulted in the performance of any of its
obligations under the New York Security Instruments relating to condemnation or
casualty), under no circumstance and in no event shall the occurrence of any
casualty event or the commencement or continuation of any condemnation
proceeding with respect to the New York Property postpone, delay or otherwise
affect or interfere with the occurrence of the Effective Date. Nothing herein
shall affect or alter the rights, including rights as a loss payee, of the
Pension Fund Trustee under any insurance policies, whether procured by the
Debtor or otherwise.
(e) Recordation of New York Deed. Pursuant to section 1142(b)
of the Bankruptcy Code, the Confirmation Order shall direct the New York
Register's Office to record the New York Deed, the Assignment of New York Ground
Lease and any other recordable New York Transfer Documents without the payment
of Transfer Taxes and, simultaneously with such recordation, to discharge,
remove and terminate any and all Liens, claims, rights, interests and
encumbrances whatsoever, including the mortgage(s) held by Emigrant, other than
New York Permitted Exceptions, as set forth in
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Section 5.1 of the Plan- The New York Transferee will be responsible for the
costs of any title insurance obtained by the New York Transferee in connection
with its acquisition of title to the New York Property pursuant to the Plan,
including, without limitation, the policy and endorsement referred to in Section
9.1(j) of the Plan.
(f) No Assumption. Except as otherwise expressly provided in
Section 7.1(i) of the Plan, the transfer of the New York Property and the Other
New York Assets to the New York Transferee shall in no event impose on the New
York Transferee any obligation, duty or liability arising prior to the Effective
Date, including, without limitation, any obligation of the Debtor to any taxing
authority or trade creditor, or to pay any indebtedness, obligations or
liabilities of the Debtor.
(g) Items to be Delivered on Effective Date. On the Effective
Date, the Debtor, the Receiver and the Receiver's Agent shall deliver (and cause
their counsel and any management personnel, brokers, appraisers, officers,
directors and other professionals employed by them to deliver) to the New York
Transferee all books, records and other papers in their possession and in the
possession of the General Partners pertaining to the New York Property and the
Other New York Assets, and the Debtor, the General Partners, the Receiver and
the Receiver's Agent shall use their respective best efforts to furnish the New
York Transferee with such additional information concerning the New York
Property and the Other New York Assets and the books and records relating
thereto as the New York Transferee may thereafter from time to time request. The
Debtor, the Receiver and the Receiver's Agent shall also deliver to the New
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York Transferee or its designee, on the Effective Date, the originals of all
leases relating to or concerning the New York Properties (or, in the case of any
lease the original of which cannot be located, an affidavit of the Debtor's
responsible individual or an affidavit of the Receiver, in the case of a lease
entered into by the Receiver, to the effect that after a diligent search, he or
she has not been able to locate the original of such lease and that attached to
such affidavit is a true and complete copy of the original lease), all keys to
the New York Property, and all New York Personal Property listed in the New York
sill of Sale which is not located at the New York Property on the Effective
Date.
(h) Security Deposits. Without limiting the generality of the
Debtor's and the Receiver's obligation to transfer the Other New York Assets to
the New York Transferee pursuant to the Plan, the Debtor, the Receiver or the
Receiver's Agent, as applicable, shall turn over to the New York Transferee or
its designee on the Effective Date all security deposits attributable to the New
York Property (including all monies held in any security deposit account and all
letters of credit or other non-cash security), including all such security
deposits which shall have been delivered to the Debtor, the Receiver or the
Receiver's Agent by new tenants between the Confirmation Date and the Effective
Date.
(i) Assumption of Payables. On the Effective Date, the New
York Transferee shall assume responsibility for all Receiver Payables. Neither
the Pension Fund Trustee nor the New York Transferee shall assume or be deemed
liable for any contingent, disputed, or unliquidated liabilities of the Debtor
or the Receiver, including any such liabilities which become fixed and/or
absolute at
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any time.
(j) Further Assurances. From and after the Effective Date, the
Debtor, the Receiver and the Receiver's Agent shall, at the New York
Transferee's or the Pension Fund Trustee's request, (a) transfer to the New York
Transferee from time to time any and all property and assets, tangible or
intangible, which come into their possession promptly upon receipt thereof which
were intended to be transferred in connection with the New York Property and the
Other New York Assets or which constitute a part of the New York Property or the
Other New York Assets, (b) collect for the account of the New York Transferee,
its successors and assigns, all monies or other assets of any character and all
other items transferred, or intended to be transferred, in connection with the
New York Property and the Other New York Assets, and endorse with the name of
the New York Transferee any checks or drafts received on account of the New York
Property and the Other New York Assets, (c) from time to time institute and
prosecute any and all proceedings at law, in equity or otherwise, that the New
York Transferee may reasonably request, or permit the New York Transferee (and
provide the New York Transferee with all requisite power(s) of attorney) to
institute and prosecute any and all of such proceedings in the name of the
Debtor, in the name of the Receiver or otherwise, in order to collect, assert or
enforce any claim, right or title, of any kind, in and to the property, assets,
rights and privileges assigned and conveyed, or intended so to be, in connection
with the New York Property and the Other New York Assets, and to defend and
compromise any and all actions, suits or proceedings in respect of any of such
property, assets, rights and privileges, and (d) generally to do all and any
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<PAGE>
such acts and things in connection with the New York Property and the Other New
York Assets as the New York Transferee may reasonably request to give effect to
the provisions of the Plan. The Debtor, the Receiver and the Receiver's Agent
shall promptly transfer and deliver to the New York Transferee, from time to
time, any cash, checks, drafts or other property, including any amounts paid as
interest in respect thereof, transferred or to be transferred to the New York
Transferee, as provided herein.
7.2 Transfer of Texas Property and Other Texas Assets. As of the
Effective Date, the Texas Property and the Other Texas Assets shall be
transferred to the Texas Transferee pursuant to the Texas Transfer Documents, as
set forth in Section 4.2 of the Plan.
(a) Exemption from Transfer Taxes. Pursuant to section 1146(c)
of the Bankruptcy Code, the transfer of the Texas Property to the Texas
Transferee, as provided for in Section 4.2 of the Plan and this Section 7.2,
shall be exempt from the imposition and payment of any and all Transfer Taxes.
The Texas Deed, the Assignment of Texas Ground Lease and any other recordable
Texas Transfer Documents shall be recorded in the Dallas County Recorder's
Office without the payment of any Transfer Taxes. Additionally, in the event
that the Texas Mortgagee or the Texas Transferee shall seek to record the
Confirmation Order, the Confirmation Order shall be recorded in the Dallas
County Recorder's Office without the payment of any Transfer Taxes.
(b) Effect of Transfer Waiver. The transfer of the Texas
Property to the Texas Transferee, and the transactions contemplated by this
Plan, shall not constitute an extinguishment of the indebtedness of the Debtor
to the Texas Mortgagee or the
34
<PAGE>
extinguishment of any liens held by the Texas Mortgagee, and will not constitute
a merger of title of any interest of the Texas Mortgagee. Any rights of
redemption which may exist with respect to the Texas Property are waived.
(c) Good Faith Transfer. Each of the Debtor, the Texas
Mortgagee and the Texas Transferee shall be deemed to have acted in "good
faith", within the meaning of sections 363(m) and 1129(a)(3) of the Bankruptcy
Code, in delivering and accepting, respectively, title to the Texas Property and
the Texas Transfer Documents. In connection with the transfer of the Texas
Property and the delivery of the Texas Transfer Documents to the Texas
Transferee, as provided for in the Plan, the Texas Transferee and all parties in
interest in the Bankruptcy Case shall be entitled to the protections afforded by
section 363(m) of the Bankruptcy Code.
(d) Casualty Event/Condemnation. Unless the Texas Mortgagee
shall in the exercise of its sole and absolute discretion determine otherwise
(or unless the Debtor has defaulted in the performance of any of its obligations
under the Texas Mortgage relating to condemnation or casualty), under no
circumstance and in no event shall the occurrence of any casualty event or the
commencement or continuation of any condemnation proceeding with respect to the
Texas Property postpone, delay or otherwise affect or interfere with the
occurrence of the Effective Date. Nothing herein shall affect or alter the
rights, including rights as a loss payee, of the Texas Mortgagee under any
insurance-policies, whether procured by the Debtor or otherwise.
(e) Recordation of Texas Deed. Pursuant to section 1142(b) of
the Bankruptcy Code, the Confirmation order shall direct
35
<PAGE>
the Dallas County Recorder's Office to record the Texas Deed, the Assignment of
Texas Ground Lease and any other recordable Texas Transfer Documents without the
payment of Transfer Taxes. The Texas Transferee will be responsible for the
costs of any title insurance obtained by the Texas Transferee in connection with
its acquisition of title to the Texas Property pursuant to the Plan.
(f) No Assumption. Except as otherwise expressly agreed by the
Texas Transferee, the transfer of the Texas Property and the Other Texas Assets
to the Texas Transferee shall in no event impose on the Texas Transferee any
obligation, duty or liability arising prior to the Effective Date, including,
without limitation, any obligation of the Debtor to any taxing authority or
trade creditor, or to pay any indebtedness, obligations or liabilities of the
Debtor.
(g) Items to be Delivered on Effective Date. On the Effective
Date, the Debtor shall deliver (and cause its counsel and any management
personnel, brokers, appraisers, officers, directors and other professionals
employed by the Debtor to deliver) to the Texas Transferee all books, records
and other papers in their possession and in the possession of the General
Partners pertaining to the Texas Property and the Other Texas Assets, and the
Debtor and the General Partners shall use their respective best efforts to
furnish the Texas Transferee with such additional information concerning the
Texas Property and the Other Texas Assets and the books and records relating
thereto as the Texas Transferee may thereafter from time to time request.
(h) Security Deposit. Without limiting the generality of the
Debtor's obligation to transfer the Other Texas Assets to the
36
<PAGE>
Texas Transferee pursuant to the Plan, the Debtor shall turn over to the Texas
Transferee or its designee on the Effective Date all security deposits
attributable to the Texas Property (including all monies held in any security
deposit account and all letters of credit or other non-cash security).
(i) [Reserved].
(j) Further Assurances. From and after the Effective Date, the
Debtor shall, at the Texas Transferee's or the Texas Mortgagee's request, (i)
transfer to the Texas Transferee from time to time any and all property and
assets, tangible or intangible, which come into their possession promptly upon
receipt thereof which were intended to be transferred in connection with the
Texas Property and the Other Texas Assets or which constitute a part of the
Texas Property or the Other Texas Assets, (ii) collect for the account of the
Texas Transferee, its successors and assigns, all monies or other assets of any
character and all other items transferred, or intended to be transferred, in
connection with the Texas Property and the Other Texas Assets, and endorse with
the name of the Texas Transferee any checks or drafts received on account of the
Texas Property and Other Texas Assets, and (iii) generally to do all and any
such acts and things in connection with the Texas Property and the Other Texas
Assets as the Texas Transferee may reasonably request to give effect to the
provisions of the Plan.
37
<PAGE>
ARTICLE VIII
------------
RETENTION OF JURISDICTION AND RELEASE
8.1 Retention of Jurisdiction. From and after the Confirmation Date and
until such time as all payments and distributions required to be made and all
other obligations required to be performed under this Plan have been made and
performed by the Debtor or the Pension Fund Trustee, as the case may be, the
Bankruptcy Court shall retain such jurisdiction as is legally permissible,
including, but not limited to, the following purposes:
(a) To hear and determine any and all objections to the
allowance of a Claim or any controversy as to the classification of Claims OF
Interests;
(b) To hear and determine any and all applications by
Professionals for compensation and reimbursement of expenses;
(c) To determine the reasonableness of payments made or to be
made by the Pension Fund Trustee for services and for costs and expenses in or
in connection with the Bankruptcy Case, or in connection with the Plan and
incident to the Bankruptcy Case;
(d) To hear and determine any and all pending applications for
the rejection and disaffirmance of executory contracts and unexpired leases, and
to fix and allow any Claims resulting therefrom;
(e) To enable the Debtor, the Receiver or the Pension Fund
Trustee, as the case may be, to prosecute any and all proceedings which may be
brought prior to any applicable deadline to set aside liens or encumbrances and
to recover any transfers, assets, properties or damages to which the Debtor may
be entitled under applicable provisions of the Bankruptcy Code or any other
38
<PAGE>
federal, state or local laws except as may be waived or released pursuant to the
Plan;
(f) To interpret and/or enforce the terms of the release
contained in Section 8.2 of the Plan;
(g) To liquidate any disputed, contingent or unliquidated
Claims or Interests;
(h) To enforce and implement the provisions of the Plan;
(i) To hear and determine matters concerning state, local and
federal taxes in accordance with sections 346, 505 and 1146 of the Bankruptcy
Code;
(j) To determine any liability to a governmental unit which
may be asserted as a result of the transactions contemplated herein;
(k) To correct any defect, cure any omission, or reconcile any
inconsistency in the Plan or in the Confirmation Order as may be necessary to
carry out its purpose and the intent of the Plan; and
(1) To determine such other matters as may be provided for in
the Confirmation Order or as may be authorized under the provisions of the
Bankruptcy Code.
8.2 Release of Claims. Notwithstanding anything appearing to the
contrary in Section 8.1 of the Plan, the Bankruptcy Court shall not retain
jurisdiction to hear or determine any of the Debtor's Claims, as hereinafter
defined, which claims are expressly released by the following terms of this
Section 8.2:
(a) Release. As of the Effective Date, the Debtor, for itself
and on behalf of its partners, subsidiaries, divisions, participants, affiliated
corporations, trustees, advisors,
39
<PAGE>
beneficiaries, officers, directors, agents, employees, servants, attorneys and
representatives, as well as their respective heirs, executors, legal
representatives, administrators, successors and assigns (collectively, the
"Debtor's Releasing Parties"), hereby jointly and severally release, acquit and
forever discharge the Pension Fund Trustee and its successors and assigns, and
each of its subsidiaries, divisions, participants, affiliated corporations or
entities, trustees, advisors, beneficiaries, officers, directors, agents,
employees, servants, attorneys and representatives, as well as their respective
heirs, executors, legal representatives, administrators, successors and assigns
(collectively, the "Pension Fund Trustee's Related Parties"), from any and all
claims, demands, damages, debts, costs, expenses, liabilities, contracts,
agreements, obligations, accounts, defenses, suits, actions, causes of action or
claims for relief, of any kind or character whatsoever, known or unknown,
suspected or unsuspected, in contract or in tort, at law or in equity, whether
heretofore or hereafter accruing, which the Debtor or any of the Debtor's
Releasing Parties, jointly or severally, ever had or now has against the Pension
Fund Trustee or any of the Pension Fund Trustee's Related Parties, jointly or
severally, at any time prior to and including the date hereof, for or by reason
of (a) any matter, cause or thing done, admitted to, or suffered to be done by
the Pension Fund Trustee or any of the Pension Fund Trustee's Related Parties,
jointly or severally, at any time prior to and including the Effective Date, in
any way connected with, arising out of, related to or in furtherance of (i) the
New York Indebtedness, (ii) any or all renewals, extensions or rearrangements of
the New York Indebtedness, (iii) any of the New
40
<PAGE>
York Security Instruments, (iv) any of the transactions arising out of, related
to or contemplated by any of the New York Security Instruments, (v) any or all
agreements, covenants and obligations of the Pension Fund Trustee or the Pension
Fund Trustee's Related Parties relating to the New York Indebtedness or any of
the New York Security Instruments (collectively, but not including the Pension
Fund Trustee's obligations specified in the Plan to fund the payment of certain
distributions under the Plan or the New York Transferee's obligation with
respect to those Receiver Payables required under the Plan to be assumed by the
New York Transferee or any of the Pension Fund Trustee's or the New York
Transferee's other obligations arising under the Plan, the "PFT Obligations"),
(vi) any or all prior understandings or agreements, oral or written, and
negotiations related thereto, to the extent not incorporated into the Plan or
the documents and instruments contemplated thereby, (vii) the exercise,
enforcement or realization upon any rights, remedies, powers or entitlements of
the Pension Fund Trustee under or relating to any of the New York Security
Instruments (collectively, the "PFT Remedies"), or (viii) the advancing of any
funds under the New York Notes and the administration of the loan evidenced
thereby by the Pension Fund Trustee to or for the benefit or account of the
Debtor, any of the General Partners or Limited Partners or any other Person with
respect to any of the New York Indebtedness or any of the New York Security
Instruments; and (b) any actions taken, proposed to be taken or not taken by the
Pension Fund Trustee or any of the Pension Fund Trustee's Related Parties prior
to the date hereof with respect to the New York Indebtedness, any of the New
York Security Instruments, any of the PFT
41
<PAGE>
Obligations, any of the PFT Remedies, or the advancing of funds by the Pension
Fund Trustee to or for the benefit or account of the Debtor, the General
Partners, the Limited Partners or any other Person with respect to the New York
Indebtedness or any of the New York Security Instruments, including, without
limitation, any actions taken by the Pension Fund Trustee or its successors and
assigns in foreclosing upon any of the Liens. The foregoing release shall
include, without limitation, to the extent allowed by applicable law, such
claims or defenses as fraud, mistake, duress, overreaching, usury, failure to
disclose, and interference with business management or relationships relating to
any of the matters, documents, transactions, acts or omissions described above.
For purposes hereof, all claims released hereunder by the Debtor and the
Debtor's Releasing Parties are collectively called the "Debtor's Claims".
(b) Scope of Release. Notwithstanding anything herein to the
contrary, the release in Section 8.2(a) of the Plan is intended to be and shall
be construed as a release of the Debtor's Claims, to the extent hereinabove set
forth, by the Debtor and the Debtor's Releasing Parties, of all Persons who are,
were, or have been, officers, directors, attorneys, shareholders, partners,
joint venturers, agents, representatives, employees, or trustees of the Pension
Fund Trustee or any of the Pension Fund Trustee's Related Parties, whether or
not specifically named herein, together with any and all other Persons, whether
natural, corporate or otherwise, in privity with any of them, including all of
their respective heirs, executors, legal representatives, administrators,
successors and assigns, whether or not specifically named herein.
42
<PAGE>
(c) Debtor's Claims. Debtor hereby covenants, on behalf of
itself and the Debtor's Releasing Parties, that it will never (i) sue or bring
any legal action or proceeding against the Pension Fund Trustee or any of the
Pension Fund Trustee's Related Parties asserting any of the Debtor's Claims,
(ii) hinder or enjoin any property transfer or other transaction contemplated by
the Plan, (iii) attempt to void, avoid, set aside or challenge, directly or
indirectly, any transfer of the New York Property and the Other New York Assets
(or any of them), (iv) voluntarily commence, join in, or participate as an
adverse party or as an adverse witness (unless subject to compulsory legal
process which requires testimony) in a lawsuit against the Pension Fund Trustee
or any of the Pension Fund Trustee's Related Parties, which lawsuit involves,
directly or indirectly, any of the Debtor's Claims, or (v) raise any of the
Debtor's Claims as a defense or bring a counterclaim or cross-claim against the
Pension Fund Trustee or any of the Pension Fund Trustee's Related Parties
asserting, directly or indirectly, any of the Debtor's Claims in a suit or
proceeding. Debtor agrees that the release provided in Section 8.2(a) of the
Plan may be interposed as a complete defense to any action or other proceeding
that may be brought, instituted or prosecuted by the Debtor or the Debtor's
Releasing Parties, or any of them, against the Pension Fund Trustee or the
Pension Fund Trustee's Related Parties, or any of them, in which any of the
Debtor's Claims are asserted.
ARTICLE IX
----------
CONDITIONS PRECEDENT TO EFFECTIVE DATE OF PLAN
9.1 Conditions to Effective Date. The effectiveness of the Plan shall
be subject to the satisfaction of the following
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<PAGE>
conditions precedent on or before the date specified for each such condition
(and the Effective Date shall not occur unless each and every one of such
conditions shall have been satisfied or waived):
(a) Retainers Repaid. Two hundred five thousand dollars
($205,000), representing all retainers paid by the Debtor to its Professionals
in connection with the Bankruptcy Case prior to the Petition Date, shall have
been returned to the Debtor and deposited in the Plan Fund.
(b) Affiliate and Related Claims Withdrawn. All Affiliate
Claims and Claims of Professionals retained by the Debtor or holders of
Affiliate Claims shall be withdrawn, except for the Claim of IR Vista Management
Corp.
(c) Transfer of IR Vista Management Corp. Claim. The Claim of
IR Vista Management Corp. shall have been transferred by the holder of such
Claim to the Pension Fund Trustee or its designee.
(d) Performance of Covenants and Agreements. Debtor, the
Receiver and the Receiver's Agent shall have timely and materially performed and
complied with all covenants and agreements required to be performed or complied
with by them pursuant to the Plan and the Receivership Orders prior to or as of
the Effective Date. Without limiting the generality of the foregoing, the Debtor
shall have performed all of its obligations under the New York Security
Instruments regarding the assignment to the New York Transferee of the Debtor's
rights under policies of insurance in the event of a casualty with respect to
the New York Property occurring prior to the Effective Date.
44
<PAGE>
(e) Litigation. No suit, action, or other proceeding shall be
pending before any court or governmental agency in which any third party is
seeking to restrain or prohibit or to obtain damages or other relief in
connection with the Plan, the Receivership Orders, or the consummation of the
transactions contemplated hereby.
(f) Consummation Documents. Debtor, the Receiver, the
Receiver's Agent, the General Partners, the New York Transferee, Emigrant, and
the Texas Transferee shall have duly executed and/or delivered the documents and
instruments required pursuant to the Plan on or before the Effective Date.
(g) Confirmation Order. The Bankruptcy Court shall have
entered the Confirmation Order in form and substance satisfactory to the Pension
Fund Trustee on or before September 30, 1998.
(h) Maximum Claims Amount. The sum of all payments required to
be made on the Effective Date, other than payments to be made to holders of Tax
Claims and Claims in Class 4 (Affiliate Claims), including all amounts required
to be paid to cure defaults under executory contracts and unexpired leases being
assumed pursuant to Article X of the Plan, shall not exceed $250,000.
(i) Recordation of New York Deed. The New York Register's
Office shall have recorded the New York Deed, the Assignment of New York Ground
Lease and any other recordable New York Transfer Documents in the name of the
New York Transferee (i) without the payment of any Transfer Taxes and without
the reservation of any rights with respect to the payment of such taxes, and
(ii) free and clear of all liens, claims, rights, interests and encumbrances
other than New York Permitted Exceptions.
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<PAGE>
(j) Title Insurance. First American Title Insurance Company of
New York or another title insurance company acceptable to the Pension Fund
Trustee shall have issued (i) an owner's policy of title insurance on Form ALTA
1990 with respect to the New York Property, insuring the New York Transferee's
fee title to the New York Property, subject only to New York Permitted
Exceptions, and (ii) an endorsement to the Pension Fund Trustee's existing loan
policy of title insurance with respect to the New York Property, which
endorsement shall reaffirm such policy, subject to no additional exceptions
other than New York Permitted Exceptions.
(k) Delivery of Original Leases. Keys. etc. Debtor, the
Receiver or the Receiver's Agent, as applicable, shall have delivered the items
described in Section 7.1(g) of the Plan to the New York Transferee or its
designee.
(l) Notice to Tenants. Debtor, the Receiver or the Receiver's
Agent, as appropriate, shall have directed, by written instruction in form and
content satisfactory to the Pension Fund Trustee, all tenants under leases
relating to or concerning any portion of the New York Property to forward all
rents and other payments due under such leases to the New York Transferee or its
designee.
(m) Deadline for Effective Date. The Effective Date shall have
occurred and the Confirmation Order shall have become a Final Order on or before
December 31, 1998.
(n) Tenant Estoppel Letters. Each of the tenants under any of
the leases relating to the New York Property shall have returned to the Receiver
or the Receiver's Agent estoppel letters, in form and substance satisfactory to
the Pension Fund Trustee and
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<PAGE>
the New York Transferee, confirming that the amount of security deposits or
other forms of security (including letters of credit) provided by such tenant is
not greater than the amount of security deposits and other forms of security
(including letters of credit) turned over to the New York Transferee or its
designee on the Effective Date pursuant to Section 7.1(h) of the Plan, or shall
have been forever barred by Final Order of the Bankruptcy Court from asserting a
claim against the Debtor, the Pension Fund Trustee, the Receiver, the Receiver's
Agent or the New York Transferee (or its designee) or any of their respective
successors or assigns for the return of any security deposit or other forms of
security (including letters of credit).
(o) Mutual Releases. On or before the Effective Date, each of
the General Partners, in their respective capacities as general partners of the
Debtor, and the respective direct and indirect owners of any of the General
Partners, in their respective capacities as such, shall have entered into a
mutual release with the Pension Fund Trustee, each such release to be
substantially in the form of the release and related provisions in Section 8.2
of the Plan, with only those changes needed to reflect the different parties
releasing each other, the mutual nature of their releases and any difference in
the nature of the claims they may hold.
9.2 Waiver of Conditions. The conditions set forth in Section 9.1 of
the Plan may be waived by the Pension Fund Trustee.
ARTICLE X
---------
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
10.1 Deemed Assumption of Executory Contracts and Unexpired Leases.
Except as provided in Section 10.2 of the Plan, any
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<PAGE>
unexpired lease or executory contract that has not been expressly rejected by
the Debtor with the Bankruptcy Court's approval on or prior to the Confirmation
Date shall be deemed to have been assumed by the Debtor as of the Effective Date
unless there is pending before the Bankruptcy Court on the Confirmation Date a
motion to reject such unexpired lease or executory contract or such executory
contract or unexpired lease is otherwise designated for rejection and is
ultimately assumed.
10.2 Assumption and Assignment of Executory Contracts and Unexpired
Leases. Without limiting the generality of Section 10.1 of the Plan, in
connection with the transfer of the New York Property, the Other New York
Assets, the Texas Property and the Other Texas Assets, the Debtor will (a)
assume the executory contracts and unexpired leases relating to the New York
Property, including all executory contracts and unexpired leases identified in
Schedule 5a annexed to the Plan, and assign said executory contracts and
unexpired leases to the New York Transferee, and (b) assume the executory
contracts and unexpired leases relating to the Texas Property, including all
executory contracts and unexpired leases identified in Schedule 5b annexed to
the Plan, and assign said executory contracts and unexpired leases to the Texas
Transferee. In accordance with section 1123(a)(5)(G) of the Bankruptcy Code, on
the Effective Date, or as soon as practicable thereafter, each of the New York
Transferee and the Texas Transferee shall cure all defaults under any executory
contract or unexpired lease assigned to such assignee pursuant to this Section
10.2 by making a Cash payment in an amount agreed to between such assignee and
the Claimant, or as otherwise fixed pursuant to a Final Order.
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<PAGE>
ARTICLE XI
----------
MISCELLANEOUS
11.1 Calculation of Time Periods. Bankruptcy Rule 9006 is incorporated
herein for purposes of calculating the dates set out herein.
11.2 Withholding Taxes. The Pension Fund Trustee shall be entitled to
deduct any federal or state withholding taxes from any payments made with
respect to Allowed Claims for wages of any kind.
11.3 Headings. Headings are utilized in the Plan for the convenience of
reference only, and shall not constitute a part of the Plan for any other
purpose.
11.4 Nonconsensual Confirmation. If the Plan is accepted by one or
more, but not all, Classes of Claims or Interests, the Pension Fund Trustee
reserves the right to request Confirmation of the Plan pursuant to section
1129(b) of the Bankruptcy Code, subject to any modification of the Plan in
accordance with Section 11.5 of the Plan.
11.5 Defects. Omissions and Amendments. The Pension Fund Trustee may,
without notice to holders of Claims and Interests, insofar as it does not
materially and adversely affect the interests of holders of Claims and
Interests, correct any defect, omission or inconsistency in this Plan in such
manner and to such extent as may be necessary to expedite the execution of this
Plan. The Plan may be altered or amended before or after Confirmation as
provided in section 1127 of the Bankruptcy Code if, in the opinion of the
Bankruptcy Court, the modification does not materially and adversely affect the
interests of holders of Claims and Interests. The Plan may be altered or amended
before or after the Confirmation Date in a
49
<PAGE>
manner which, in the opinion of the Bankruptcy court, materially and adversely
affects holders of Claims and Interests, after a further hearing and acceptance
of the Plan as so altered or modified as provided in section 1126 of the
Bankruptcy Code.
11.6 Governing Law. Except to the extent that the Bankruptcy Code is
applicable, the rights and obligations arising under this Plan shall be governed
by, and construed and enforced in accordance with, the internal laws of the
State of New York.
11.7 Notices. All notices, requests or demands for payment provided for
in this Plan shall be in writing and shall be deemed to have been given when
personally delivered by hand or Federal Express or other recognized overnight
courier service or deposited in any general or branch post office of the United
States Postal Service or received by telex or telecopier. Notices, requests and
demands for payments shall be addressed and sent, in the case of notices,
requests or demands for payments to the Pension Fund Trustee to: Vista
Properties Reorganization Plan, c/o Murphy Sheneman Julian & Rogers, 101
California Street, 39th Floor, San Francisco, CA 94111, Attn: Cecily Caceu, or
at any other address designated by the Pension Fund Trustee by notice to each
holder of an Allowed Claim and at the last known address according to the
Debtor's books and records or at any other address designated by a holder of an
Allowed Claim by notice to the Pension Fund Trustee, provided that any notice of
change of address shall be effective only upon receipt.
11.8 Severability. Should any provision in this Plan be determined to
be unenforceable, such determination shall in no way l limit or affect the
enforceability and operative effect of any or I all other provisions of this
Plan.
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<PAGE>
11.9 Revocation or Withdrawal. The Pension Fund Trustee reserves the
right to revoke and/or withdraw this Plan, in its sole and absolute discretion,
at any time on or before the Confirmation Date.
11.10 Effect of Revocation or Withdrawal. If the Pension Fund Trustee
revokes or withdraws this Plan pursuant to Section 11.9 of the Plan, or if
Confirmation does not occur, then this Plan 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 or Interests by or against the Pension Fund Trustee, any
other Person or to prejudice in any manner the rights of the Pension Fund
Trustee, or any Person in any further proceedings involving the Debtor or
otherwise.
11.11 Capacity of Pension Fund Trustee. Bankers Trust Company is
executing this Plan not in its individual capacity but, rather solely in its
capacity as trustee for the General Motors Corporation Hourly-Rate Employes
Pension Trust, and as Trustee for the General Motors Corporation Salaried
Employes Pension Trust (the "Trusts"). Any obligation of Bankers Trust Company
under this Plan are obligations only of the Trusts. Any action taken by Bankers
Trust Company hereunder is at the direction of the investment manager of the
Trusts in consultation with the Trusts. Neither Bankers Trust Company nor any of
its affiliates, nor the beneficiaries of the Trusts, nor any of their respective
officers, directors, employees, Partners. shareholders or agents (including,
without limitation, the
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individual signing this Plan on behalf of Bankers Trust Company), assume any
obligations under the Plan.
Dated: August 26, 1998 BANKERS TRUST COMPANY, as Trustee
for the GENERAL MOTORS
CORPORATION HOURLY-RATE EMPLOYES
PENSION TRUST, and as Trustee for
the GENERAL MOTORS CORPORATION
SALARIED EMPLOYES PENSION TRUST
/s/Robert M. Bysshe
By -------------------
Name: Robert M. Bysshe
Title: Managing Director
WACHTELL, LIPTON, ROSEN & KATZ
MURPHY SHENEMAN JULIAN & ROGERS
A Professional Corporation
/s/Tobias S. Keller
By: -------------------
Tobias S. Keller
52
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE 1
----------
New York Accounts
Nature
of
Bank Account# Address Account
- ---- -------- ------- -------
<S> <C> <C> <C>
Emigrant Savings Bank 1776-0 5 East 42nd Street Escrow account
New York, NY 10017
Attn: Marie Joyce
Chase Manhattan Bank 230107907 One Chase Square Edward S. Gordon A/A/F
Rochestcr, NY 14643 Vista Properties
Chase Manhattan Bank 230107893 One Chase Square Edward S. Gordon A/A/F
Rochester, NY 14643 Vista Properties
Chase Manhattan Bank 114-084882 380 Madison Avenue, Colliers ABR A/A/F Vista
10th Floor Properties
New York, NY 10017 Collection account
Attn: Barbara Dunne
Chase Manhattan Bank 114-086079 380 Madison Avenue, Colliers ABR A/A/FVista
10th Floor Properties
New York, NY 10017 Operating account
Attn: Barbsra Dunne
Chemmcal Investmont 3YJ-078124 55 Water Street, 18th FL Colliers ABRA/A/F Vista
Services Corp. New York, NY 10041 Properties
Short-term mvestments
Chase Manhattan Bank 323211038 Operatmg
Emigrant Savings Bank 22296 Lease Secnnty
Citibank, N.A. 19251619 Operating
</TABLE>
<PAGE>
SCHEDULE 2
Legal Description of New York Land
----------------------------------
All that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County, City and State of New York, bounded and described
as follows:
BEGINNING at the corner formed by the intersection of the northerly line of 46th
Street with the westerly line of Park Avenue;
RUNNING THENCE westerly along the northerly line of 46th Street, one hundred
twenty-four (124) feet, four (4) inches more or less to the easterly line of
Vanderbilt Avenue;
THENCE northerly along said easterly line of Vanderbilt Avenue two hundred (200)
feet ten (10) inches more or less to the southerly line of 47th Street;
THENCE easterly along the southerly line of 47th Street one hundred twenty-four
(124) feet, four (4) inches more or less to the westerly line of Park Avenue;
and
THENCE southerly along the westerly line of Park Avenue two hundred (200) feet
ten (10) inches more or less to the point or place of BEGINNING.
Excepting, however, from the parcel of land above described, all that portion
thereof lying below a horizontal plane drawn at elevation 52.75 feet, and
intersecting the northerly, southerly, easterly and westerly bounds of the
parcels of land above described (herein called the "Excepted Space"), together
with all subsurface rights in and to 46th Street, 47th Street, Park Avenue and
Vanderbilt Avenue, in the Borough of Manhattan, City of New York.
The elevation above referred to has reference to the datum plane of The New York
Central Railroad Company, which takes for its elevation 0 feet 00 inches mean
high water mark of the East River, at the foot of East 26th Street, in the
Borough of Manhattan, City of New York, as in effect on June 1, 1905 .
TOGETHER WITH an easement for the support of the building on the premises above
described upon the columns, bracings and foundations thereof, within the
Excepted Space.
<PAGE>
SCHEDULE 4
New York Transfer Documents
---------------------------
l. New York Deed.
2. Assignment of New York Ground Lease.
3. New York Assignment of lease.
4. New York Bill of Sale.
5. New York Omnibus Assignment,
6. FIRPTA Affidavit, executed by Debtor.
7. New York State Combined Real Property Transfer Gains Tax Affidavit, Real
Estate Transfer Tax Return and Credit Line Mortgage Certificate on Form
TP-584.
8. Smoke Detecting Alarm (Device) Affidavit and Department of Housing
Preservation and Development Affidavit in Lieu of Registration Statement, if
required by law.
9. New York City Real Property Transfer Tax Return on Form NYC-RPT.
10. Letters notifying tenants of the New York Property of the change in
ownership of the New York Property and directing such tenants to send future
rental payments to Transferee or its designee.
11. Termination of Paying Agent and Agency Agreement, executed by the Debtor,
the Pension Fund Trustee and State Street Bank and Trust Company.
12. Termination of Collateral Assignment of Mortgage, in recordable form,
executed by the Debtor for the benefit of the Pension Fund Trustee.
13. Satisfaction of Mortgage, in recordable form, executed by the Debtor for the
benefit of the Pension Fund Trustee, terminating the Reciprocal Mortgage
dated January 4, 1994.
14. Termination of Land Option Agreement, in recordable form, executed by the
Debtor and the Pension Fund Trustee.
<PAGE>
15. Termination of Assignment of Leases and Rents, executed by Emigrant.
16. UCC-3 Financing Statement Termination(s), executed by Emigrant.
-2-
<PAGE>
SCHEDULE 5a
-----------
Unexpired Leases and Executory Contracts to be Assumed and
Assigned to the New York Transferee
The following are the executory contracts and unexpired leases relating
to the New York Property which will be assigned to the New York Transferee. All
references to leases are as amended to date.
1. Lease(s) dated December 28, 1977 with Marine Midland Bank.
2. Lease dated December 28, 1977 with James Capel Inc. (assigned
from Marine Midland Bank).
3. Lease(s) dated May 1978 with Marine Midland Bank.
4. Lease dated February 17, 1981 with Epstein, Becker h Green,
P.C.
5. Lease dated October 6, 1986 with Sullivan h Cromwell.
6. Lease dated April 1, 1987 with Taylor Woodrow Construction.
7. Lease dated June 8, 1987 with Prudential-Bache Securities,
Inc.
8. Lease dated February 29, 1988 with Mitsui Petrochemicals
(America), Ltd.
9. Lease dated January 20, 1989 with Smith Barney Inc.
10. Lease dated May 1, 1989 with Floral Impressions, Inc.
11. Lease dated May l9, 1989 with Dowa International Corporation.
12. Lease dated August 16, 1989 with Annmax Smoke Shop, Inc.
13. Lease dated July 13, 1990 with DOI Incorporated.
14. Lease dated May 9, l991 with The Edna McConnell Clark
Foundation.
15. Lease dated April 22, 1992 with Banco Di Sicilia.
<PAGE>
16. Lease dated June 29, 1992 with Private Corporate Advisors,
Inc.
17. Lease dated August 31, 1992 with Stewart Title Insurance.
18. Lease dated March 1, 1993 with Handy HRM.
19. Lease dated March 31, 1993 with Amfin Corporation.
20. Lease dated November 24, 1993 with Hutton Ingram Yuzek Gainen
Carroll & Bertolotti.
21. Lease dated December 9, 1993 with Catalyst Vidalia Corp.
22. Lease dated March 22, 1994 with Carl & Associates.
23. Lease dated June 2, 1994 with Miller & Wrubel, P.C.
24. Lease dated August 5, 1994 with HBD Industries, Inc.
25. Lease dated March 17, 1995 with Waterhouse Securities Inc.
26. Lease dated July 31, 1995 with 250 Park Group d/b/a Devon &
Blakely.
27. Lease dated October 31, 1995 with Lowenthal, Landau, Fischer &
Bring, P.C. (now Wolf, Block, Schorr & Solis-Cohen).
28. Lease dated June 28, 1996 with Dorsey & Whitney.
29. Lease dated February 28, 1997 with Prudential Securities
Incorporated.
30. Lease dated August 1, 1997 with Volkswagen of America, Inc.
31. Lease dated November 20, 1997 with Messrs. Goldberg & Berger.
32. Lease dated February 20, 1998 with Nicholas Advisors, Inc.
33. Lease dated February 20, 1998 with Raymond James Associates.
2
<PAGE>
34. Lease dated May 21, 1998 with Scott America Corporation.
35. Lease dated July 22, 1998 with Williams Communications
Solutions
36. Lease (undated) with Handy & Harman.
37. Lease (undated) with Marine Midland Bank.
3
<PAGE>
SCHEDULE 5b
-----------
Unexpired Leases and Executory Contracts to be Assumed and
Assigned to the Texas Transferee
The following are the executory contracts and unexpired leases relating
to the Texas Property which will be assigned to the Texas Transferee from the
Debtor:
1. A Ground Lease covering the Land, dated December 15, 1983,
by and between Republic Bank Dallas, N.A., as Trustee, as Landlord, and
Vista Properties, a California limited partnership, as Tenant, as
referenced in Memorandum of Lease recorded in Volume 83248, Page 984 of
the Real Property Records of Dallas County, Texas, the rights of
Republic Bank Dallas, N.A., thereunder as Trustee having been assigned
to Chase Bank of Texas, N.A., as Successor Trustee.
Legal Description of Land
Lot 2, Block B of Revision of Block B of Central Commerce
Center, an addition to the City of Irving, Texas according to
the Map thereof recorded in Volume 81152, Page 2236 of the
Real Estate Records of Dallas County Texas.
2. Net Lease dated as of April 29, 1983, by and between
Republic Bank Dallas, as Trustee, as Landlord, and Brock Hotel
Corporation, a Delaware corporation ("Brock"), as Tenant, as referenced
in Memorandum of Lease recorded in Volume 83086, Page 4127 of the Real
Property Records of Dallas County, Texas, as amended by Assignment of
Net Lease dated December 15, 1983, from Republic Bank Dallas, as
Assignor to Vista Properties, a California limited partnership
("Vista"), as Assignee, as amended by First Amendment to Net Lease
dated June 1, 1986, by and between Vista as Landlord and Brock as
Tenant.
Legal Description of Land
Lot 2, Block B of Revision of Block B of Central Commerce
Center, an addition to the City of Irving, Texas according to
the Map thereof recorded in Volume 81152, Page 2236 of the
Real Estate Records of Dallas County Texas.
<PAGE>
- --------------------------------------------------------------------------------
VISTA PROPERTIES,
a California limited partnership
(Grantor)
to
EASTRICH NO. 208 CORPORATION,
a Massachusetts corporation
(Grantee)
------------------------
BARGAIN AND SALE DEED WITHOUT
COVENANT AGAINST GRANTOR'S ACTS
------------------------
Location: 250 Park Avenue
New York, New York
Section: 5
Block: 1282
Lot: 34
County: New York
THIS DEED IS BEING EXECUTED AND DELIVERED PURSUANT TO A PLAN OF REORGANIZATION
FILED IN THAT CERTAIN BANKRUPTCY CASE PENDING AS IN RE VISTA PROPERTIES, CASE
NO. 97-45990-J, IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT
OF CALIFORNIA (OAKLAND DIVISION), AS CONFIRMED BY A FINAL ORDER OF THE
BANKRUPTCY COURT, DATED ____________, 1998, AND IS EXEMPT FROM ANY TRANSFER TAX,
STAMP TAX OR SIMILAR TAX PURSUANT TO 11 U.S.C. ss. 1146.
RECORDING REQUESTED BY, AND
AFTER RECORDING RETURN TO:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Michael B. Benner, Esq.
- --------------------------------------------------------------------------------
EXHIBIT A
<PAGE>
CONSULT YOUR LAWYER BEFORE SIGNING THIS INSTRUMENT -- THIS INSTRUMENT SHOULD BE
USED BY LAWYERS ONLY
THE INDENTURE, made the ___________day of ______________, nineteen hundred and
ninety-eight BETWEEN VISTA PROPERTIES, a California limited partnership having
an address at 411 West Putnam Avenue, Suite 270, Greenwich, Connecticut 06830
party of the first part, and EASTRICH NO. 208 CORPORATION, a Massachusetts
corporation having an address c/o AEW Capital
Management, L.P., 225 Franklin Street, Boston,
Massachusetts 02110-2803,
party of the second part,
WITNESSETH, that the party of the first part, in consideration of ten dollars
and other valuable consideration paid by the party of the second part, does
hereby grant and release unto the party of the second part, the heirs or
successors and assigns of the party of the second part forever,
ALL buildings and improvements located on that certain plot, piece or parcel of
land situate, lying and being in the City, County and State of New York and more
particularly described in Schedule A annexed hereto.
TOGETHER with all right, title and interest, if any, of the party of the first
part, in and to any streets and roads abutting the above-described premises to
the center lines thereof; TOGETHER with the appurtenances and all the estate and
rights of the party of the first part in and to said premises; TO HAVEANDTOHOLD
the premises herein granted unto the party of the second part, the heirs or
successors and asdsigns of the party of the second part forever. Said premises
are being granted subject to the lien of those two (2) certain mortgages
identified in Schedule B annexed hereto.
AND the party of the first part, in compliance with Section 13 of the Lien Law,
covenants that the party of the first part will receive the consideration for
this conveyance and will hold the right to receive such consideration as a trust
fund to be applied first to the payment of the cost of the improvement before
using any part of the total of the same for any other purpose.
The word "party" shall be construed as if it read "parties" whenever the sense
of this indenture so requires.
IN WITNESS WHEREOF, the party of the first part has duly executed this deed the
day and year first above written.
VISTA PROPERTIES
By: IR Vista Realty Corp.
General Partner
By: ________________________
Name:
Title:
<PAGE>
STATE OF NEW YORK )
: ss. :
COUNTY OF NEW YORK )
Before me, a Notary Public in and for the above County and State duly
commissioned and sworn, there personally appeared ___________________
("Subscriber"), who is to me personally known and who, being by me duly sworn,
did depose, say and acknowledge that: he has offices at
________________________; that he is the ___________________ of IR Vista Realty
Corp., the corporation which executed the instrument to which this
acknowledgment is affixed, which corporation is a general partner of VISTA
PROPERTIES, a California limited partnership; that the execution of said
instrument by said corporation was duly authorized according to the limited
partnership agreement of such limited partnership; that said corporation
executed said instrument on behalf of such limited partnership pursuant to said
authorization; and that Subscriber signed his name to said instrument by order
of the board of directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in
the County and State aforesaid on this ___ day of ____________________, 1998.
------------------------------------
Notary Public
<PAGE>
SCHEDULE A
Legal Description of Land
All that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County, City and State of New York, bounded and described
as follows:
BEGINNING at the corner formed by the intersection of the northerly line of 46th
Street with the westerly line of Park Avenue;
RUNNING THENCE westerly along the northerly line of 46th Street, one hundred
twenty-four (124) feet, four (4) inches more or less to the easterly line of
Vanderbilt Avenue;
THENCE northerly along said easterly line of Vanderbilt Avenue two hundred (200)
feet ten (10) inches more or less to the southerly line of 47th Street;
THENCE easterly along the southerly line of 47th Street one hundred twenty-four
(124) feet, four (4) inches more or less to the westerly line of Park Avenue;
and
THENCE southerly along the westerly line of Park Avenue two hundred (200) feet
ten (10) inches more or less to the point or place of BEGINNING.
Excepting, however, from the parcel of land above described, all that portion
thereof lying below a horizontal plane drawn at elevation 52.75 feet, and
intersecting the northerly, southerly, easterly and westerly bounds of the
parcels of land above described (herein called the "Excepted Space"), together
with all subsurface rights in and to 46th Street, 47th Street, Park Avenue and
Vanderbilt Avenue, in the Borough of Manhattan, City of New York.
The elevation above referred to has reference to the datum plane of The New York
Central Railroad Company, which takes for its elevation 0 feet 00 inches mean
high water mark of the East River, at the foot of East 26th Street, in the
Borough of Manhattan, City of New York, as in effect on June 1, 1905.
TOGETHER WITH an easement for the support of the building on the premises above
described upon the columns, bracings and foundations thereof, within the
Excepted Space
<PAGE>
SCHEDULE B
Description of Mortgages
------------------------
The buildings and improvements conveyed hereby are subject to the liens of the
following mortgages:
(a) First Wraparound Mortgage, dated as of January 4, 1984, by
and between Park 250 Associates, a New York limited partnership, as
mortgagor, and Bankers Trust Company, as Trustee for the General Motors
Hourly-Rate Employees Pension Trust under Declaration of Trust dated
March 1, 1983, and as Trustee for the General Motors Retirement Program
for Salaried Employees Trust under Declaration of Trust dated March 1,
1983 (the "Pension Fund Trustee"), as mortgagee, recorded in the Office
of the Register of the City of New York, County of New York (the
"Register's Office") on January 10, 1984 in Reel 753, Page 482, as
amended by that certain First Amendment to Wraparound Mortgage, dated
as of January 4, 1984, by and among Park 250 Associates, Vista
Properties, a California limited partnership, and the Pension Fund
Trustee, recorded in the Register's Office on January 10, 1984 in Reel
753, Page 697.
(b) Purchase Money Wraparound Mortgage, dated as of January 4,
1984, by and between Vista Properties, as mortgagor, and the Pension
Fund Trustee, as mortgagee, recorded in the Register's Office on
January 10, 1984 in Reel 753, Page 555.
It is the intention of the party of the first part and the party of the second
part (a) that the interest of the mortgagee under the mortgages identified in
this Schedule B and the fee title being conveyed to the party of the second part
pursuant to this deed shall remain separate and distinct, one from the other,
and that there shall be no merger of such mortgagee's interest with such fee
title, and (b) that the fee title to the buildings and improvements being
conveyed to the party of the second part pursuant to this deed and the fee title
to the land on which such buildings and improvements are located shall remain
separate and distinct, one from the other, and that there shall be no merger of
the fee title to such buildings and improvements with the fee title to such
land.
<PAGE>
- --------------------------------------------------------------------------------
VISTA PROPERTIES,
a California limited partnership
(Assignor)
to
EASTRICH NO. 208 CORPORATION,
a Massachusetts corporation
(Assignee)
-----------------------------------
ASSIGNMENT AND ASSUMPTION OF LEASE
-----------------------------------
Dated: As of ________________, 1998
Location: 250 Park Avenue
New York, New York
Section: 5
Block: 1282
Lot: 34
County: New York
THIS ASSIGNMENT IS BEING EXECUTED AND DELIVERED PURSUANT TO A PLAN OF
REORGANIZATION FILED IN THAT CERTAIN BANKRUPTCY CASE PENDING AS IN RE VISTA
PROPERTIES, CASE NO 97-45990-J, IN THE UNITED STATES BANKRUPTCY COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA (OAKLAND DIVISION), AS CONFIRMED BY A FINAL
ORDER OF THE BANKRUPTCY COURT, DATED ______________, 1998, AND IS EXEMPT FROM
ANY TRANSFER TAX, STAMP TAX OR SIMILAR TAX PURSUANT TO 11 U.S.C. ss. 1146.
RECORDING REQUESTED BY, AND
AFTER RECORDING RETURN TO:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Michael B. Benner, Esq.
- --------------------------------------------------------------------------------
EXHIBIT B
<PAGE>
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "Assignment") is made as of the
__________ day of ________________, 1998, by and between VISTA PROPERTIES, a
California limited partnership having an address at 411 West Putnam Avenue,
Suite 270, Greenwich, Connecticut 06830 ("Assignor"), and EASTRICH NO. 208
CORPORATION, a Massachusetts corporation having an address c/o AEW Capital
Management, L.P., 225 Franklin Street, Boston, Massachusetts 02110-2803
("Assignee").
P R E L I M I N A R Y
- - - - - - - - - - -
A. Assignor is the debtor in a case under Chapter 11 of Title 11 of the
United States Code pending as In re Vista Properties, Case No. 97-45990-J (the
"Bankruptcy Case") in the United States Bankruptcy Court for the Northern
District of California, Oakland Division (the "Bankruptcy Court"). On
_______________, 1998, the Bankruptcy Court entered an Order in the Bankruptcy
Case confirming the [First Amended] Plan of Reorganization filed by Bankers
Trust Company, as Trustee for the General Motors Corporation Hourly-Rate
Employes Pension Trust, and as Trustee for the General Motors Corporation
Salaried Employes Pension Trust, in the Bankruptcy Case (the "Plan"). Certain
capitalized terms used in this Assignment without definition have the respective
meanings assigned to those terms in the Plan.
B. Assignor is the owner and holder of the leasehold estate created
pursuant that certain lease more particularly described in Schedule A annexed
hereto and made a part hereof (the "Lease"), demising the parcel of real
property more particularly described in Schedule B annexed hereto and made a
part hereof (the "Land").
C. The Plan contemplates that Assignor will assign to Assignee all of
its all of its right, title and interest in, to and under the Lease, and in and
to the leasehold estate created thereby (the "Leasehold Estate"), to Assignee,
and that Assignee will accept such assignment and assume all of Assignor's
obligations as lessee under the Lease, upon and subject to the terms and
conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Assignor and Assignee agree as follows:
1. Assignor hereby assigns to Assignee all of the right, title and
interest of Assignor in, to and under the
<PAGE>
Lease, and in and to the Leasehold Estate; subject however, to the lien of those
two (2) certain mortgages identified in Schedule C annexed hereto and made a
part hereof (collectively, the "Mortgages"). It is the intention of Assignor and
Assignee (a) that the interest of the mortgagee under the Mortgages and the
Leasehold Estate being assigned to Assignee pursuant to this Assignment shall
remain separate and distinct, one from the other, and that there shall be no
merger of such interests, and (b) that fee title to the Land and the Leasehold
Estate being assigned to Assignee pursuant to this Assignment shall remain
separate and distinct, one from the other, and that there shall be no merger of
such interests.
2. Assignee hereby accepts the foregoing assignment and assumes and
agrees to perform in a timely manner each and all of the obligations of Assignor
as lessee under the Lease arising from and after the date hereof.
3. This Assignment shall inure to the benefit of and shall be binding
upon the parties hereto and their respective successors, transferees and
assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
and Assumption of Lease as of the day and year first hereinabove set forth.
ASSIGNOR:
--------
VISTA PROPERTIES
By: IR Vista Realty Corp.
General Partner
By:________________________
Name:
Title:
ASSIGNEE:
--------
EASTRICH NO. 208 CORPORATION
By:________________________
Name:
Title:
-2-
<PAGE>
STATE OF NEW YORK )
: ss. :
COUNTY OF NEW YORK )
Before me, a Notary Public in and for the above County and State duly
commissioned and sworn, there personally appeared ______________________
("Subscriber"), who is to me personally known and who, being by me duly sworn,
did depose, say and acknowledge that: he has offices at
____________________________; that he is the _______________________ of IR Vista
Realty Corp., the corporation which executed the instrument to which this
acknowledgment is affixed, which corporation is a general partner of VISTA
PROPERTIES, a California limited partnership; that the execution of said
instrument by said corporation was duly authorized according to the limited
partnership agreement of such limited partnership; that said corporation
executed said instrument on behalf of such limited partnership pursuant to said
authorization; and that Subscriber signed his name to said instrument by order
of the board of directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in
the County and State aforesaid on this ___ day of _____________________, 1998.
------------------------------------
Notary Public
<PAGE>
STATE OF NEW YORK )
: ss. :
COUNTY OF NEW YORK )
On the ____ day of _________________, 1998, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say that
he or she has offices at 225 Franklin Street, Boston, Massachusetts 02110; that
he or she is __________________ of EASTRICH NO. 208 CORPORATION, the corporation
described in and which executed the foregoing instrument; and that he or she
signed his or her name thereto by order of the board of directors of said
corporation.
------------------------------------
NOTARY PUBLIC
<PAGE>
SCHEDULE A
Description of Lease
--------------------
Agreement of Lease, dated as of April 1, 1961, between New York State
Realty and Terminal Company, as landlord, and 250 Park Avenue Corporation, as
tenant, recorded in the Office of the Register of the City of New York, County
of New York (the "Register's Office") on May 19, 1961 in Liber 5150 of
Conveyances, Page 371, as amended by that certain Agreement, dated December 28,
1977, between Febe Associates, as landlord, and 250 Park Avenue Corporation, as
tenant, recorded on December 30, 1977 in the Register's Office in Reel 423, Page
657. The Lease was assigned (a) by 250 Park Avenue Corporation to Parkbilt
Associates, Inc. pursuant to an Assignment of Lease dated December 28, 1977,
recorded in the Register's Office on December 30, 1977 in Reel 423, Page 731;
(b) by Parkbilt Associates, Inc. to Park 250 Associates pursuant to an
Assignment of Lease dated December 28, 1977, recorded in the Register's Office
on December 30, 1977 in Reel 423, Page 805; and (c) by Park 250 Associates to
Vista Properties pursuant to an Assignment of Lease dated as of January 4, 1984
recorded in the Register's Office on December 30, 1977 in Reel 753, Page 546.
<PAGE>
SCHEDULE E
Legal Description of Land
-------------------------
All that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County, City and State of New York, bounded and described
as follows:
BEGINNING at the corner formed by the intersection of the northerly line of 46th
Street with the westerly line of Park Avenue;
RUNNING THENCE westerly along the northerly line of 46th Street, one hundred
twenty-four (124) feet, four (4) inches more or less to the easterly line of
Vanderbilt Avenue;
THENCE northerly along said easterly line of Vanderbilt Avenue two hundred (200)
feet ten (10) inches more or less to the southerly line of 47th Street;
THENCE easterly along the southerly line of 47th Street one hundred twenty-four
(124) feet, four (4) inches more or less to the westerly line of Park Avenue;
and
THENCE southerly along the westerly line of Park Avenue two hundred (200) feet
ten (10) inches more or less to the point or place of BEGINNING.
Excepting, however, from the parcel of land above described, all that portion
thereof lying below a horizontal plane drawn at elevation 52.75 feet, and
intersecting the northerly, southerly, easterly and westerly bounds of the
parcels of land above described (herein called the "Excepted Space"), together
with all subsurface rights in and to 46th Street, 47th Street, Park Avenue and
Vanderbilt Avenue, in the Borough of Manhattan, City of New York.
The elevation above referred to has reference to the datum plane of The New York
Central Railroad Company, which takes for its elevation 0 feet 00 inches mean
high water mark of the East River, at the foot of East 26th Street, in the
Borough of Manhattan, City of New York, as in effect on June 1, 1905.
TOGETHER WITH an easement for the support of the building on the premises above
described upon the columns, bracings and foundations thereof, within the
Excepted Space.
<PAGE>
SCHEDULE C
Description of Mortgages
The buildings and improvements conveyed hereby are subject to the liens of the
following mortgages:
(a) First Wraparound Mortgage, dated as of January 4, 1984, by
and between Park 250 Associates, a New York limited partnership, as
mortgagor, and Bankers Trust Company, as Trustee for the General Motors
Hourly-Rate Employees Pension Trust under Declaration of Trust dated
March 1, 1983, and as Trustee for the General Motors Retirement Program
for Salaried Employees Trust under Declaration of Trust dated March 1,
1983 (the "Pension Fund Trustee"), as mortgagee, recorded in the Office
of the Register of the City of New York, County of New York (the
"Register's Office") on January 10, 1984 in Reel 753, Page 482, as
amended by that certain First Amendment to Wraparound Mortgage, dated
as of January 4, 1984, by and among Park 250 Associates, Vista
Properties, a California limited partnership, and the Pension Fund
Trustee, recorded in the Register's Office on January 10, 1984 in Reel
753, Page 697.
(b) Purchase Money Wraparound Mortgage, dated as of January 4,
1984, by and between Vista Properties, as mortgagor, and the Pension
Fund Trustee, as mortgagee, recorded in the Register's Office on
January 10, 1984 in Reel 753, Page 555.
<PAGE>
- --------------------------------------------------------------------------------
VISTA PROPERTIES,
a California limited partnership
and
DARRELL L. PASTER, AS RECEIVER
to
EASTRICH NO. 208 CORPORATION,
a Massachusetts corporation
-----------------------------
ASSIGNMENT AND ASSUMPTION OF
LESSOR'S INTEREST IN LEASES
-----------------------------
Dated: As of ________________, 1998
Location: 250 Park Avenue
New York, New York
Section: 5
Block: 1282
Lot: 34
County: New York
THIS ASSIGNMENT IS BEING EXECUTED AND DELIVERED PURSUANT TO A PLAN OF
REORGANIZATION FILED IN THAT CERTAIN BANKRUPTCY CASE PENDING AS IN RE VISTA
PROPERTIES, CASE NO. 97-45990-J, IN THE UNITED STATES BANKRUPTCY COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA (OAKLAND DIVISION), AS CONFIRMED BY A FINAL
ORDER OF THE BANKRUPTCY COURT, DATED ___________, 1998, AND IS EXEMPT FROM ANY
TRANSFER TAX, STAMP TAX OR SIMILAR TAX PURSUANT TO 11 U.S.C. ss. 1146.
RECORDING REQUESTED BY, AND
AFTER RECORDING RETURN TO:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Michael B. Benner, Esq.
- --------------------------------------------------------------------------------
EXHIBIT C
<PAGE>
ASSIGNMENT AND ASSUMPTION OF LESSOR'S INTEREST IN LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LESSOR'S INTEREST IN LEASES (this
"Assignment") is made as of the _____ day of __________________, 1998, by and
between VISTA PROPERTIES, a California limited partnership having an address at
411 West Putnam Avenue, Suite 270, Greenwich, Connecticut 06830 ("Vista"),
DARRELL L. PASTER, AS RECEIVER, having an address at 270 Madison Avenue, Suite
1301, New York, New York 10016 (the "Receiver"; Vista and the Receiver being
sometimes referred to hereinafter, collectively, as "Assignors"), and EASTRICH
NO. 208 CORPORATION, a Massachusetts corporation having an address c/o AEW
Capital Management, L.P., 225 Franklin Street, Boston, Massachusetts 02110-2803
("Assignee).
P R E L I M I N A R Y
- - - - - - - - - - -
A. Vista is the debtor in a case under Chapter 11 of Title 11 of the
United States Code pending as In re Vista Properties, Case No. 97-45990-J (the
"Bankruptcy Case") in the United States Bankruptcy Court for the Northern
District of California, Oakland Division (the "Bankruptcy Court"). On
______________________, 1998, the Bankruptcy Court entered an Order in the
Bankruptcy Case confirming the [First Amended] Plan of Reorganization filed by
Bankers Trust Company, as Trustee for the General Motors Corporation Hourly-Rate
Employes Pension Trust, and as Trustee for the General Motors Corporation
Salaried Employes Pension Trust, in the Bankruptcy Case (the "Plan"). Certain
capitalized terms used in this Assignment without definition have the respective
meanings assigned to those terms in the Plan.
B. Vista is the owner of certain fee and leasehold interests in and to
the real property identified in Schedule A attached hereto (the "Property"). The
Receiver was appointed receiver of the Property pursuant to a certain Amended
Order Appointing Receiver entered on December 13, 1996 by the Supreme Court of
the State of New York, New York County, Index No. 605459/96, and was authorized
to continue to act as receiver of the Property by order of the Bankruptcy Court.
C. Pursuant to certain leases, including those listed on Schedule B
attached hereto, portions of the Property have been leased to the tenants listed
on Schedule B attached hereto. Such leases, together with all amendments,
modifications and supplements thereto, if any, are hereinafter referred to,
collectively, as the "Leases".
<PAGE>
D. Pursuant to the Plan, Vista is conveying and assigning its fee and
leasehold interests in the Property to Assignee concurrently with its execution
and delivery of this Assignment.
E. The Plan also contemplates that Vista and the Receiver will assign
to Assignee (~) all of their respective rights, title and interest, if any, as
landlord under the Leases, (ii) all prepaid rent received by or on behalf of
Vista or the Receiver from any of the tenants under the Leases (the "Prepaid
Rent") and (iii) all security deposits (and interest thereon) held by or on
behalf of Vista or the Receiver in connection with the Leases (the "Security
Deposits"), and that Assignee will accept such assignment and perform all of the
obligations of the landlord under the Leases upon and subject to the terms and
conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Assignors and Assignee agree as follows:
1. Each Assignor hereby assigns to Assignee (a) all of the right, title
and interest of such Assignor, if any, as landlord under each of the Leases, and
(k) all of the Prepaid Rent and Security Deposits, if any, held by or on behalf
of such Assignor in connection with the Leases; subject however, to the lien of
those two (2) certain mortgages identified in Schedule C annexed hereto and made
a part hereof (collectively, the "Mortgages"). It is the intention of Assignors
and Assignee that the interest of the mortgagee under the Mortgages and the
interest being assigned to Assignee pursuant hereto shall remain separate and
distinct, one from the other, and that there shall be no merger of such
interests.
2. Assignee hereby accepts the foregoing assignment, acknowledges
receipt of the Security Deposits and assumes and agrees to perform in a timely
manner each and all of the obligations of the landlord under each of the Leases
arising on or after the date hereof and to hold and apply the Prepaid Rent and
the Security Deposits in accordance with the respective terms and provisions of
the Leases.
3. This Assignment shall inure to the benefit of and shall be binding
upon the parties hereto and their respective successors, transferees and
assigns.
-2-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Assignment and
Assumption of Lessor's Interest in Leases as of the day and year first
hereinabove set forth.
ASSIGNORS:
---------
VISTA PROPERTIES
By: IR Vista Realty Corp.,
General Partner
By: _____________________
Name:
Title:
----------------------------------
DARRELL L. PASTER, not in his
individual capacity, but solely
in his capacity as Receiver of 250
Park Avenue, New York, New York
ASSIGNEE:
--------
EASTRICH NO. 208 CORPORATION
By: _____________________
Name:
Title:
-3-
<PAGE>
STATE OF NEW YORK )
: ss. :
COUNTY OF NEW YORK )
Before me, a Notary Public in and for the above County and State duly
commissioned and sworn, there personally appeared _______________
("Subscriber"), who is to me personally known and who, being by me duly sworn,
did depose, say and acknowledge that: he has offices at _____________________;
that he is the ________________ of IR Vista Realty Corp., the corporation which
executed the instrument to which this acknowledgment is affixed, which
corporation is a general partner of VISTA PROPERTIES, a California limited
partnership; that the execution of said instrument by said corporation was duly
authorized according to the limited partnership agreement of such limited
partnership; that said corporation executed said instrument on behalf of such
limited partnership pursuant to said authorization; and that Subscriber signed
his name to said instrument by order of the board of directors of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in
the County and State aforesaid on this ________ day of ____________________,
1998.
------------------------------------
Notary Public
<PAGE>
STATE OF NEW YORK )
: ss. :
COUNTY OF NEW YORK )
On this __________ day of __________________, 1998, before me
personally came DARRELL L. PASTER, to me known to be the person described in and
who executed the foregoing instrument, and who, being duly sworn by me, did
depose and say that he has an office at 270 Madison Avenue, New York, New York
10016, and he duly acknowledged to me that he executed the same.
------------------------------------
Notary Public
STATE OF NEW YORK )
: ss. :
COUNTY OF NEW YORK )
On the ____________ day of _________________, 1998, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that he or she has offices at 225 Franklin Street, Boston, Massachusetts 02110;
that he or she is ______________________ of EASTRICH NO. 208 CORPORATION, the
corporation described in and which executed the foregoing instrument; and that
he or she signed his or her name thereto by order of the board of directors of
said corporation.
------------------------------------
NOTARY PUBLIC
<PAGE>
SCHEDULE A
Legal Description of Property
-----------------------------
All that certain plot, piece or parcel of land, with the buildings and
improvements thereon erected, situate, lying and being in the Borough of
Manhattan, County, City and State of New York, bounded and described as follows:
BEGINNING at the corner formed by the intersection of the northerly line of 46th
Street with the westerly line of Park Avenue;
RUNNING THENCE westerly along the northerly line of 46th Street, one hundred
twenty-four (124) feet, four (4) inches more or less to the easterly line of
Vanderbilt Avenue;
THENCE northerly along said easterly line of Vanderbilt Avenue two hundred (200)
feet ten (10) inches more or less to the southerly line of 47th Street;
THENCE easterly along the southerly line of 47th Street one hundred twenty-four
(124) feet, four (4) inches more or less to the westerly line of Park Avenue;
and
THENCE southerly along the westerly line of Park Avenue two hundred (200) feet
ten (10) inches more or less to the point or place of BEGINNING.
Excepting, however, from the parcel of land above described, all that portion
thereof lying below a horizontal plane drawn at elevation 52.75 feet, and
intersecting the northerly, southerly, easterly and westerly bounds of the
parcels of land above described (herein called the "Excepted Space"), together
with all subsurface rights in and to 46th Street, 47th Street, Park Avenue and
Vanderbilt Avenue, in the Borough of Manhattan, City of New York.
The elevation above referred to has reference to the datum plane of The New York
Central Railroad Company, which takes for its elevation 0 feet 00 inches mean
high water mark of the East River, at the foot of East 26th Street, in the
Borough of Manhattan, City of New York, as in effect on June 1, 1905.
TOGETHER WITH an easement for the support of the building on the premises above
described upon the columns, bracings and foundations thereof, within the
Excepted Space.
<PAGE>
SCHEDULE B
Leases
------
1. Lease, dated _____________, 19 _ , between Landlord* or its agent, as
landlord, and _______________________, as tenant.
2. Lease, dated _____________, 19 _ , between Landlord or its agent, as
landlord, and _______________________, as tenant.
3. Lease, dated _____________, 19 _ , between Landlord or its agent, as
landlord, and _______________________, as tenant.
4. Lease, dated _____________, 19 _ , between Landlord or its agent, as
landlord, and _______________________, as tenant.
5. Lease, dated _____________, 19 _ , between Landlord or its agent, as
landlord, and _______________________, as tenant.
6. Lease, dated _____________, 19 _ , between Landlord or its agent, as
landlord, and _______________________, as tenant.
7. Lease, dated _____________, 19 _ , between Landlord or its agent, as
landlord, and _______________________, as tenant.
8. Lease, dated _____________, 19 _ , between Landlord or its agent, as
landlord, and _______________________, as tenant.
9. Lease, dated _____________, 19 _ , between Landlord or its agent, as
landlord, and _______________________, as tenant.
10. Lease, dated _____________, 19 _ , between Landlord or its agent, as
landlord, and _______________________, as tenant.
11. Lease, dated _____________, 19 _ , between Landlord or its agent, as
landlord, and _______________________, as tenant.
12. Lease, dated _____________, 19 _ , between Landlord or its agent, as
landlord, and _______________________, as tenant.
13. Lease, dated _____________, 19 _ , between Landlord or its agent, as
landlord, and _______________________, as tenant.
- -------------------
* As used in this Schedule B, "Landlord" shall refer to the Receiver, Vista or a
prior owner of the property described in Schedule A, as applicable.
<PAGE>
SCHEDULE C
Description of Mortgages
The buildings and improvements conveyed hereby are subject to the liens of the
following mortgages:
(a) First Wraparound Mortgage, dated as of January 4, 1984, by
and between Park 250 Associates, a New York limited partnership, as
mortgagor, and Bankers Trust Company, as Trustee for the General Motors
Hourly-Rate Employees Pension Trust under Declaration of Trust dated
March 1, 1983, and as Trustee for the General Motors Retirement Program
for Salaried Employees Trust under Declaration of Trust dated March 1,
1983 (the "Pension Fund Trustee"), as mortgagee, recorded in the Office
of the Register of the City of New York, County of New York (the
"Register's Office") on January 10, 1984 in Reel 753, Page 482, as
amended by that certain First Amendment to Wraparound Mortgage, dated
as of January 4, 1984, by and among Park 250 Associates, Vista
Properties, a California limited partnership, and the Pension Fund
Trustee, recorded in the Register's Office on January 10, 1984 in Reel
753, Page 697.
(b) Purchase Money Wraparound Mortgage, dated as of January 4
r 1984, by and between Vista Properties, as mortgagor, and the Pension
Fund Trustee, as mortgagee, recorded in the Register's Office on
January 10, 1984 in Reel 753, Page 555.
<PAGE>
BILL OF SALE
VISTA PROPERTIES, a California limited partnership having an address at
411 West Putnam Avenue, Suite 270, Greenwich, Connecticut 06830 ("Vista"), and
DARRELL L. PASTER, AS RECEIVER, having an address at 270 Madison Avenue, Suite
1301, New York, New York 10016 (the "Receiver"; Vista and the Receiver being
sometimes referred to hereinafter, collectively, as "Transferors"), hereby
convey, assign and transfer to EASTRICH NO. 208 CORPORATION, a Massachusetts
corporation having an address c/o AEW Capital Management, L.P., 225 Franklin
Street, Boston, Massachusetts 02110-2803 ("Transferee"), all of Transferors'
respective rights, title and interest in and to any and all equipment,
machinery, fixtures, furniture, appliances, tools, machinery, supplies, artwork,
building materials and other personal property attached to or located on the
real property identified in Schedule A attached hereto (the "Property") as of
the date hereof, together with all warranties relating to such equipment and
other personal property.
This Bill of Sale is being delivered pursuant to a plan of
reorganization (the "Plan") filed by Bankers Trust Company, as Trustee for the
General Motors Corporation Hourly-Rate Employes Pension Trust, and as Trustee
for the General Motors Corporation Salaried Employes Pension Trust, in a case
under Chapter 11 of Title 11 of the United States Code pending as In re Vista
Properties, Case No. 97-45990-J (the "Bankruptcy Case") in the United States
Bankruptcy Court for the Northern District of California, Oakland Division (the
"Bankruptcy Court"), and is therefore exempt from any transfer tax, stamp tax or
similar tax pursuant to 11 U.S.C. ss. 1146. On __________________, 1998, the
Bankruptcy Court entered an Order in the Bankruptcy Case confirming the Plan.
Pursuant to the Plan, Vista is also conveying and assigning certain fee and
leasehold interests in and to the Property (collectively, the "Property
Interests") to Transferee concurrently with its execution and delivery of this
Bill of Sale.
Vista hereby acknowledges and agrees, and by its acceptance hereof
Transferee hereby acknowledges and agrees, (a) that none of the consideration
which Vista is receiving pursuant to the Plan is allocable to the personal
property transferred pursuant to this Bill of Sale, and (k) that all of the
consideration which Vista is receiving pursuant to the Plan is allocable to the
Property Interests.
This Bill of Sale shall be governed by and construed under the laws of
the State of New York.
EXHIBIT D
<PAGE>
IN WITNESS WHEREOF, Transferors have executed this Bill of Sale as of
the ______ day of _______________________, 1998.
VISTA PROPERTIES
By: IR Vista Realty Corp.,
General Partner
By: _____________________________
Name:
Title:
------------------------------------
DARRELL L. PASTER, not in his
individual capacity, but solely
in his capacity as Receiver of 250
Park Avenue, New York, New York
-2-
<PAGE>
SCHEDULE A
Legal Description of Property
-----------------------------
All that certain plot, piece or parcel of land, with the buildings and
improvements thereon erected, situate, lying and being in the Borough of
Manhattan, County, City and State of New York, bounded and described as follows:
BEGINNING at the corner formed by the intersection of the northerly line of 46th
Street with the westerly line of Park Avenue;
RUNNING THENCE westerly along the northerly line of 46th Street, one hundred
twenty-four (124) feet, four (4) inches more or less to the easterly line of
Vanderbilt Avenue;
THENCE northerly along said easterly line of Vanderbilt Avenue two hundred (200)
feet ten (10) inches more or less to the southerly line of 47th Street;
THENCE easterly along the southerly line of 47th Street one hundred twenty-four
(124) feet, four (4) inches more or less to the westerly line of Park Avenue;
and
THENCE southerly along the westerly line of Park Avenue two hundred (200) feet
ten (10) inches more or less to the point or place of BEGINNING.
Excepting, however, from the parcel of land above described, all that portion
thereof lying below a horizontal plane drawn at elevation 52.75 feet, and
intersecting the northerly, southerly, easterly and westerly bounds of the
parcels of land above described (herein called the "Excepted Space"), together
with all subsurface rights in and to 46th Street, 47th Street, Park Avenue and
Vanderbilt Avenue, in the Borough of Manhattan, City of New York.
The elevation above referred to has reference to the datum plane of The New York
Central Railroad Company, which takes for its elevation 0 feet 00 inches mean
high water mark of the East River, at the foot of East 26th Street, in the
Borough of Manhattan, City of New York, as in effect on June 1, 1905.
TOGETHER WITH an easement for the support of the building on the premises above
described upon the columns, bracings and foundations thereof, within the
Excepted Space.
<PAGE>
OMNIBUS ASSIGNMENT
THIS OMNIBUS ASSIGNMENT (this "Assignment") is made as of the day of ,
1998, by and between VISTA PROPERTIES, a California limited partnership having
an address at 411 West Putnam Avenue, Suite 270, Greenwich, Connecticut 06830
("Vista"), DARRELL L. PASTER, AS RECEIVER, having an address at 270 Madison
Avenue, Suite 1301, New York, New York 10016 (the "Receiver"; Vista and the
Receiver being sometimes referred to hereinafter, collectively, as "Assignors"),
and EASTRICH NO. 208 CORPORATION, a Massachusetts corporation having an address
c/o AEW Capital Management, L.P., 225 Franklin Street, Boston, Massachusetts
02110-2803 ("Assignee").
P R E L I M I N A R Y:
----------------------
A. Vista is the debtor in a case under Chapter 11 of Title 11 of the
United States Code pending as In re Vista Properties, Case No. 97-45990-J (the
"Bankruptcy Case") in the United States Bankruptcy Court for the Northern
District of California, Oakland Division (the "Bankruptcy Court"). On , 1998,
the Bankruptcy Court entered an Order in the Bankruptcy Case confirming the
[First Amended] Plan of Reorganization filed by Bankers Trust Company, as
Trustee for the General Motors Corporation Hourly-Rate Employes Pension Trust,
and as Trustee for the General Motors Corporation Salaried Employes Pension
Trust, in the Bankruptcy Case (the "Plan"). Certain capitalized terms used in
this Assignment without definition have the respective meanings assigned to
those terms in the Plan.
B. Vista is the owner of certain fee and leasehold interests in and to
the real property identified in Schedule A attached hereto (the "Property"). The
Receiver was appointed receiver of the Property pursuant to a certain Amended
Order Appointing Receiver entered on December 13, 1996 by the Supreme Court of
the State of New York, New York County, Index No. 605459/96, and was authorized
to continue to act as receiver of the Property by order of the Bankruptcy Court.
C. Pursuant to the Plan, Vista is conveying and assigning its fee and
leasehold interests in the Property to Assignee concurrently with its execution
and delivery of this Assignment.
EXHIBIT E
<PAGE>
D. The Plan also contemplates that Vista and the Receiver will assign
to Assignee all of their respective rights, title and interest, if any, in, to
and under (i) any and all service contracts or agreements pertaining to the
Property or any personal property located therein (collectively, the
"Contracts"), (ii) any and all warranties and guaranties from suppliers, service
contractors and manufacturers for or concerning the Property or such personal
property, to the extent same are assignable (collectively, the ~Warranties"),
(iii) any and all governmental permits, licenses and certificates of occupancy
relating to the Property, to the extent same are assignable ~collectively, the
~Permits"), (iv) any and all accounts receivable, contract rights, rights to
payment and rights or accounts on account of goods sold or services rendered,
claims, choses in action and general intangibles (all of the foregoing being
referred to hereinafter, collectively, as the "Receivables"), (v) all bank
accounts relating to the Property (collectively, the ~Bank Accounts"), (vi) all
Cash, all undeposited checks and all credits, funds and deposits in the Accounts
(collectively, the "Funds"), and (vii) any and all other assets relating to the
Property (collectively, the "Other Assigned Assets"), and Assignee desires to
accept such assignment, upon and subject to the terms and conditions set forth
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee agree as
follows:
1. Each Assignor hereby assigns to Assignee (a) all of such Assignor's
right, title and interest, if any, in, to and under the Contracts, the
Warranties, the Permits, the Receivables, the Bank Accounts, the Funds and the
Other Assigned Assets; subject, however, to the lien of those two (2) certain
mortgages identified in Schedule B annexed hereto and made a part hereof
(collectively, the "Mortgages"). It is the intention of Assignors and Assignee
that the interest of the mortgagee under the Mortgages and the interest being
assigned to Assignee pursuant hereto shall remain separate and distinct, one
from the other, and that there shall be no merger of such interests.
2. Assignee hereby accepts the foregoing assignment, acknowledges
receipt of the Contracts, the Warranties, the Permits, the Receivables, the Bank
Accounts, the Funds and the Other Assigned Assets, and assumes and agrees to
perform in a timely manner each and all of the obligations of the owner under
each of the Contracts arising on and after the date hereof.
-2-
<PAGE>
3. This Assignment shall inure to the benefit of and shall be binding
upon the parties hereto and their respective successors, transferees and
assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Omnibus
Assignment as of the day and year first hereinabove set forth.
ASSIGNORS:
---------
VISTA PROPERTIES
By: IR Vista Realty Corp.,
General Partner
By: _____________________
Name:
Title:
----------------------------------
DARRELL L. PASTER, not in his
individual capacity, but solely
in his capacity as Receiver of 250
Park Avenue, New York, New York
ASSIGNEE:
--------
EASTRICH NO. 208 CORPORATION
By: _____________________
Name:
Title:
-3-
<PAGE>
STATE OF NEW YORK )
: ss. :
COUNTY OF NEW YORK )
Before me, a Notary Public in and for the above County and State duly
commissioned and sworn, there personally appeared ___________________
("Subscriber"), who is to me personally known and who, being by me duly sworn,
did depose, say and acknowledge that: he has offices at
__________________________; that he is the _______________________ of IR Vista
Realty Corp., the corporation which executed the instrument to which this
acknowledgment is affixed, which corporation is a general partner of VISTA
PROPERTIES, a California limited partnership; that the execution of said
instrument by said corporation was duly authorized according to the limited
partnership agreement of such limited partnership; that said corporation
executed said instrument on behalf of such limited partnership pursuant to said
authorization; and that Subscriber signed his name to said instrument by order
of the board of directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in the County and State aforesaid on this _____ day of __________________,
1998.
------------------------------------
Notary Public
<PAGE>
SCHEDULE A
Legal Description of Property
-----------------------------
All that certain plot, piece or parcel of land, with the buildings and
improvements thereon erected, situate, lying and being in the Borough of
Manhattan, County, City and State of New York, bounded and described as follows:
BEGINNING at the corner formed by the intersection of the northerly line of 46th
Street with the westerly line of Park Avenue;
RUNNING THENCE westerly along the northerly line of 46th Street, one hundred
twenty-four (124) feet, four (4) inches more or less to the easterly line of
Vanderbilt Avenue;
THENCE northerly along said easterly line of Vanderbilt Avenue two hundred (200)
feet ten (10) inches more or less to the southerly line of 47th Street;
THENCE easterly along the southerly line of 47th Street one hundred twenty-four
(124) feet, four (4) inches more or less to the westerly line of Park Avenue;
and
THENCE southerly along the westerly line of Park Avenue two hundred (200) feet
ten (10) inches more or less to the point or place of BEGINNING.
Excepting, however, from the parcel of land above described, all that portion
thereof lying below a horizontal plane drawn at elevation 52.75 feet, and
intersecting the northerly, southerly, easterly and westerly bounds of the
parcels of land above described (herein called the "Excepted Space"), together
with all subsurface rights in and to 46th Street, 47th Street, Park Avenue and
Vanderbilt Avenue, in the Borough of Manhattan, City of New York.
The elevation above referred to has reference to the datum plane of The New York
Central Railroad Company, which takes for its elevation 0 feet 00 inches mean
high water mark of the East River, at the foot of East 26th Street, in the
Borough of Manhattan, City of New York, as in effect on June 1, 1905.
TOGETHER WITH an easement for the support of the building on the premises above
described upon the columns, bracings and foundations thereof, within the
Excepted Space.
<PAGE>
SCHEDULE B
Description of Mortgages
------------------------
The buildings and improvements conveyed hereby are subject to the liens of the
following mortgages:
(a) First Wraparound Mortgage, dated as of January 4, 1984, by
and between Park 250 Associates, a New York limited partnership, as
mortgagor, and Bankers Trust Company, as Trustee for the General Motors
Hourly-Rate Employees Pension Trust under Declaration of Trust dated
March 1, 1983, and as Trustee for the General Motors Retirement Program
for Salaried Employees Trust under Declaration of Trust dated March 1,
1983 (the "Pension Fund Trustee"), as mortgagee, recorded in the Office
of the Register of the City of New York, County of New York (the
"Register's Office") on January 10, 1904 in Reel 753, Page 482, as
amended by that certain First Amendment to Wraparound Mortgage, dated
as of January 4, 1984, by and among Park 250 Associates, Vista
Properties, a California limited partnership, and the Pension Fund
Trustee, recorded in the Register's Office on January 10, 1984 in Reel
753, Page 697.
(b) Purchase Money Wraparound Mortgage, dated as of January 4,
1984, by and between Vista Properties, as mortgagor, and the Pension
Fund Trustee, as mortgagee, recorded in the Register's Office on
January 10, 1984 in Reel 753, Page 555.
<PAGE>
STATE OF NEW YORK )
: ss. :
COUNTY OF NEW YORK )
On this ___________ day of _______________, 1998, before me personally
came DARRELL L. PASTER, to me known to be the person described in and who
executed the foregoing instrument, and who, being duly sworn by me, did depose
and say that he has an office at 270 Madison Avenue, New York, New York 10016,
and he duly acknowledged to me that he executed the same.
------------------------------------
Notary Public
STATE OF NEW YORK )
: ss. :
COUNTY OF NEW YORK )
On the _________ day of ____________________, 1998, before me
personally came _____________________, to me known, who, being by me duly sworn,
did depose and say that he or she has offices at 225 Franklin Street, Boston,
Massachusetts 02110; that he or she is _________________________ of EASTRICH NO.
208 CORPORATION, the corporation described in and which executed the foregoing
instrument; and that he or she signed his or her name thereto by order of the
board of directors of said corporation.
------------------------------------
NOTARY PUBLIC
<PAGE>
ORIGINALLY FILED
SEP 17, 1998
BANKRUPTCY COURT
OAKLAND, CALIFORNIA
MURPHY SHENEMAN JULIAN & ROGERS
A Professional Corporation
PATRICK A. MURPHY (S.B. No. 038832)
TOBIAS S. KELLER (S.B. No. 151445)
101 California Street, 39th Floor
San Francisco, CA 94111
Telephone Number: 415/398-4700
Facsimile Number: 415/421-7879
WACHTELL, LIPTON, ROSEN & KATZ
MICHAEL B. BENNER
51 West 52nd Street
New York, NY 10019
Telephone Number: 212/403-1000
Facsimile Number: 212/403-2000
Attorneys for The Chase Manhattan Bank, as
Trustee for the General Motors corporation
Hourly-Rate Employes Pension Trust, and as
Trustee for the General Motors Corporation
Salaried Employes Pension Trust
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
) Chapter 11
) Case No. 97-4-5990-J
In re )
) ORDER CONFIRMING PENSION
VISTA PROPERTIES, a California ) FUND TRUSTEE'S FIRST
limited partnership, ) AMENDED PLAN OF REORGANIZATION
) (AUGUST 26, 1998)
Debtor.
) Date: September 17, 1998
) Time: 2:00 p.m.
) Place: Courtroom 215
1300 Clay Street
Oakland, California
The Chase Manhattan Bank, as Trustee for the General Motors Corporation
Hourly-Rate Employes Pension Trust, and as Trustee for the General Motors
Corporation Salaried Employes Pension Trust (including its predecessor, the
"Pension Fund Trustee"), having proposed the Pension Fund Trustee's Plan of
reorganization
<PAGE>
(June 30, 1998), as thereafter modified in the Pension Fund Trustee's First
Amended Plan of Reorganization (August 26, 1998) (the "Plan"); the Court having
conducted a hearing to consider confirmation of the Plan on September 17, 1998;
copies of the Disclosure Statement for Plan of Reorganization (June 30, 1998)
(the "Disclosure Statement"), which included a Court-approved summary of the
Plan, and the Order Approving Disclosure Statement for Pension Fund Trustee's
Plan of Reorganization (June 30, 1998) and Fixing Deadlines, Combined with
Notice Thereof (the "Order Approving Disclosure Statement") having been provided
to the Securities and Exchange Commission, the United States Trustee, creditors,
equity security holders, and parties in interest in accordance with the terms of
the Order Approving Disclosure Statement; adequate notice of the hearing having
been provided, in accordance with Rule 2002(b) of the Rules of Bankruptcy
Procedure; appearances by and on behalf of parties in interest having been made
at the hearing and noted on the record; the Court having considered the Plan,
the conditional objection of the Texas Mortgagee (as defined in the Plan) to
confirmation, the arguments of counsel, the evidence submitted at the hearing,
the memoranda and declarations filed in support of confirmation, the records and
files in this Chapter 11 case, and having made its separate findings of fact and
conclusions of law; the Texas Mortgagee having withdrawn its conditional
objection; and good cause appearing therefor, IT IS HEREBY ORDERED THAT:
Confirmation and Notice Thereof
-------------------------------
1. Service of the Disclosure Statement, the Court-approved summary of
the Plan, and the Order Approving Disclosure
2
<PAGE>
Statement is hereby approved and ratified as providing creditors, holders of
equity securities, and parties in interest adequate and appropriate notice of
the hearing on the Plan and opportunity to submit a ballot accepting or
rejecting the Plan.
2. The Plan, a copy of which is attached hereto as Exhibit 1, is
confirmed, the Court having found that all requirements of section 1129 of the
Bankruptcy Code have been satisfied. The Plan is binding upon the Debtor, its
creditors, and equity security holders irrespective of (a) whether the claim or
interest of such creditor or equity security holder has been allowed and (b)
whether such creditor or equity security holder has accepted the Plan.
3. To the extent that any objections to confirmation of the Plan have
not been withdrawn or overruled prior to the date of the hearing, all objections
to confirmation of the Plan are overruled.
4. Promptly after the date of entry of this order (the "Confirmation
Date"), the Pension Fund Trustee shall prepare a notice thereof and of the last
day for filing requests for payment of administrative expenses and proofs of
claim arising from the rejection of executory contracts or unexpired leases, if
any. The Pension Fund Trustee shall cause such notice, in substantially the form
attached hereto as Exhibit 2, to be mailed to the Office of the United States
Trustee and to all creditors, holders of equity security interests, parties to
rejected contracts, and persons having filed and served requests for notice in
this Chapter 11 case not later than ten (10) days after the Confirmation Date.
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Bar Date for Administrative and Priority claims
------------------------------------------------
5. Any person (including any professional) seeking payment as an
expense of administration under section 503(b) of the Bankruptcy Code or
asserting a priority claim under section 507(a)(1) of the Bankruptcy Code on
account of professional services provided on or after June 19, 1997, and prior
to the Confirmation Date must file with this Court a request for payment of
administrative expense or fee application and serve it upon counsel for the
Pension Fund Trustee, the Debtor, and the Office of the United States Trustee
within forty-five (45) days of the Confirmation Date or be forever barred from
receiving such payment.
Executory Contracts: Bar Date for Rejection Claims.
---------------------------------------------------
6. To the extent that the instruments and agreements identified by the
Pension Fund Trustee in its Designation of Executory Contracts and Unexpired
Leases for Rejection (the "Rejection Designation") constitute executory
contracts and/or unexpired leases within the meaning of 11 U.S.C. ss. 365 (and
without determining that such instruments and agreements are executory contracts
or unexpired leases), each of those instruments and agreements is hereby
rejected. A copy of the Rejection Designation is attached hereto as Exhibit 3.
Claims arising out of or based upon rejected executory contracts or unexpired
leases, if any, must be filed within thirty (30) days of the Confirmation Date
or shall be forever barred.
7. Except and to the extent set forth in the immediately preceding
paragraph, the Debtor's executory contracts and unexpired leases are hereby
assumed. Only the executory contracts and
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unexpired leases set forth in Schedule 5b to the Plan are hereby assigned to the
Texas Transferee. Only the executory contracts and unexpired leases set forth in
Schedule 5a to the Plan are hereby assigned to the New York Transferee. Claims
for cure amounts for assumed executory contracts or unexpired leases, if any,
must be filed within thirty (30) days of the Confirmation Date or shall be
forever barred.
Transfer of the New York Property
---------------------------------
8. In full satisfaction, release and discharge of the Debtor's
obligations for the Allowed Claim of the Pension Fund Trustee (but without
extinguishing the New York Indebtedness), on the Effective Date and pursuant to
section 1123(a)(5)(D) of the Bankruptcy Code, the Debtor shall transfer the New
York Property and the Other New York Assets to the New York Transferee, free and
clear of all Liens, claims, rights, interests and encumbrances (including,
without limitation, all mechanic's liens or environmental judgments or any other
similar Liens of any kind whatsoever, and any and all claims of Emigrant, which
were withdrawn by that certain Withdrawal of Claim filed on July 30, 1998),
other than the New York Permitted Exceptions and the docketed judgment in favor
of Arthur J. Bernstein in the amount of $950 as set forth in the Official
Records of the New York Register's Office. Such transfer shall be effected on
the Effective Date by the Debtor executing and delivering the New York Transfer
Documents, in form substantially similar to the Exhibits attached to the Plan,
to the New York Transferee.
9. Concurrently with such transfer, (a) the Debtor and the Receiver
shall deliver, and shall cause the Paying Agent and the
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Receiver's Agent to deliver to the Pension Fund Trustee, all Cash and
undeposited checks (except as otherwise set forth in subparagraph (b) hereof)
then held by the Debtor, the Receiver, the Paying Agent and the Receiver's
Agent, (b) the Debtor and the Receiver shall, and shall cause the Paying Agent
and the Receiver's Agent to, direct all banks at which the New York Accounts are
maintained to remit to the Pension Fund Trustee, by wire transfer of immediately
available funds on the Effective Date to an account specified by the Pension
Fund Trustee, all funds held in such New York Accounts (net of amounts to be
paid from such accounts, and reserves required or permitted to be established in
such accounts, on the Effective Date under the Plan), and (c) Emigrant shall
remit to the Pension Fund Trustee, by wire transfer of immediately available
funds on the Effective Date, all funds in its possession relating to the New
York Property, including, without limitation, funds held in any tax escrow
account.
10. Notwithstanding anything in the Plan or elsewhere to the contrary,
neither the entry of this order nor the transfer of the New York Property and
the Other New York Assets and the delivery and recording of the New York
Transfer Documents in accordance with the provisions of the Plan shall alter or
affect the validity, extent or priority of the New York Indebtedness or the
Liens securing the New York Indebtedness, including, without limitation, the
Liens created pursuant to the New York Mortgages and the other New York Security
Instruments. The New York Indebtedness, and the Liens by which the New York
Indebtedness is secured, shall remain outstanding and in full force and effect,
and shall continue to
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constitute "bona fide" indebtedness, as such term is used in section 275 of the
New York Real Property Law. Upon the transfer of the New York Property and the
Other New York Assets and the delivery and recording of the New York Transfer
Documents in accordance with the provisions of the Plan, the Debtor and the
General Partners shall be deemed, without the need for any further act or
instrument, to be released and discharged from any further liability for the
payment of the New York Indebtedness, but the New York Indebtedness shall not be
extinguished, and the New York Notes, the New York Mortgages and the other New
York Security Instruments shall remain outstanding and in full force and effect
and the Liens created by the New York Mortgages and the other New York Security
Instruments shall also remain in full force and effect. The Allowed Claim of the
Pension Fund Trustee, as reduced in accordance with the provisions of Section
5.1(c) of the Plan, shall continue to be evidenced by the New York Notes and
secured by the New York Mortgages and the other New York Security Instruments.
11. Pursuant to section 1146(c) of the Bankruptcy Code, the transfer of
the New York Property to the New York Transferee, as provided for in Sections
5.1 and 7.1 of the Plan, shall be exempt from the imposition and payment of any
and all Transfer Taxes. The New York Register's Office shall record the New York
Deed, the Assignment of New York Ground Lease and any other recordable New York
Transfer Documents without the payment of any Transfer Taxes. Additionally, in
the event the Pension Fund Trustee or the New York Transferee shall seek to
record this order, the New York Register's
7
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Office shall record this order without the payment of any Transfer Taxes.
12. Each of the Debtor, the Receiver, the Pension Fund Trustee and the
New York Transferee shall be, and hereby are, deemed to have acted in "good
faith", within the meaning of sections 363(m) and 1129(a)(3) of the Bankruptcy
Code, in delivering and accepting, respectively, title to the New York Property
and the New York Transfer Documents. In connection with the transfer of the New
York Property and the delivery of the New York Transfer Documents to the New
York Transferee, as provided for in the Plan, the New York Transferee and all
parties in interest in the Bankruptcy Case shall be entitled to the protections
afforded by section 363(m) of the Bankruptcy Code.
13. Unless the Pension Fund Trustee shall in the exercise of its sole
and absolute discretion determine otherwise (or unless the Debtor has defaulted
in the performance of any of its obligations under the New York Security
Instruments relating to condemnation or casualty), under no circumstance and in
no event shall the occurrence of any casualty event or the commencement or
continuation of any condemnation proceeding with respect to the New York
Property postpone, delay or otherwise affect or interfere with the occurrence of
the Effective Date. Nothing herein shall affect or alter the rights, including
rights as a loss payee, of the Pension Fund Trustee under any insurance
policies, whether procured by the Debtor or otherwise.
14. Pursuant to section 1142(b) of the Bankruptcy Code, the New York
Register's Office is hereby directed to record the New
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<PAGE>
York Deed, the Assignment of New York Ground Lease and any other recordable New
York Transfer Documents without the payment of Transfer Taxes and,
simultaneously with such recordation, to discharge, remove and terminate any and
all Liens, claims, rights, interests and encumbrances whatsoever, including the
mortgage(s) held by Emigrant, other than New York Permitted Exceptions, as set
forth in Section 5.1 of the Plan. The New York Transferee will be responsible
for the costs of any title insurance obtained by the New York Transferee in
connection with its acquisition of title to the New York Property pursuant to
the Plan, including, without limitation, the policy and endorsement referred to
in Section 9.1(j) of the Plan.
15. Except as otherwise expressly provided in Section 7.1(i) of the
Plan, the transfer of the New York Property and the Other New York Assets to the
New York Transferee shall in no event impose on the New York Transferee any
obligation, duty or liability arising prior to the Effective Date, including,
without limitation, any obligation of the Debtor or the Receiver to any taxing
authority or trade creditor, or to pay any indebtedness, obligations or
liabilities of the Debtor or the Receiver.
16. On the Effective Date, the Debtor, the Receiver and the Receiver's
Agent shall deliver (and cause their counsel and any management personnel,
brokers, appraisers, officers, directors and other professionals employed by
them to deliver) to the New York Transferee all books, records and other papers
in their possession and in the possession of the General Partners pertaining to
the New York Property and the Other New York Assets, and the Debtor, the
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<PAGE>
General Partners, the Receiver and the Receiver's Agent shall use their
respective best efforts to furnish the New York Transferee with such additional
information concerning the New York Property and the Other New York Assets and
the books and records relating thereto as the New York Transferee may thereafter
from time to time request. The Debtor, the Receiver and the Receiver's Agent
shall deliver to the New York Transferee or its designee, on the Effective Date,
the originals of all leases relating to or concerning the New York Properties
(or, in the case of any lease the original of which cannot be located, an
affidavit of the Debtor's responsible individual or an affidavit of the
Receiver, in the case of a lease entered into by the Receiver, to the effect
that after a diligent search, he or she has not been able to locate the original
of such lease and that attached to such affidavit is a true and complete copy of
the original lease), all keys to the New York Property, and all New York
Personal Property listed in the New York Bill of Sale which is not located at
the New York Property on the Effective Date.
17. Without limiting the generality of the Debtor's and the Receiver's
obligation to transfer the Other New York Assets to the New York Transferee
pursuant to the Plan, the Debtor, the Receiver or the Receiver's Agent, as
applicable, shall turn over to the New York Transferee or its designee on the
Effective Date all security deposits attributable to the New York Property
(including all monies held in any security deposit account and all letters of
credit or other non-cash security), including all such security deposits which
shall have been delivered to the Debtor, the Receiver
10
<PAGE>
or the Receiver's Agent by new tenants between the Confirmation Date and the
Effective Date.
18. On the Effective Date, the New York Transferee shall assume
responsibility for all Receiver Payables, which shall hereafter be defined to
mean, collectively, all costs and expenses payable by or on behalf of the
Receiver in connection with the ownership or operation of the New York Property,
to the extent such costs and expenses (a) were incurred in the ordinary course
of business for goods and services relating to the New York Property and in
accordance with applicable provisions of the Receivership Orders, (b) are not
required to be paid on or prior to the Effective Date pursuant to the Plan, and
(c) have not been disapproved by this Court or another court of competent
jurisdiction either prior to or after the Effective Date. Except as set forth
herein,.neither the Pension Fund Trustee nor the New York Transferee shall
assume or be deemed liable for any contingent, disputed, or unliquidated
liabilities of the Debtor or the Receiver, including any such liabilities which
become fixed and/or absolute at any time.
19. From and after the Effective Date, the Debtor, the Receiver and the
Receiver's Agent shall, at the New York Transferee's or the Pension Fund
Trustee's request, (a) transfer to the New York Transferee from time to time any
and all property and assets, tangible or intangible, which come into their
possession promptly upon receipt thereof which were intended to be transferred
in connection with the New York Property and the Other New York Assets or which
constitute a part of the New York Property or the Other New York Assets, (b)
collect for the account of the New York
11
<PAGE>
Transferee, its successors and assigns, all monies or other assets of any
character and all other items transferred, or intended to be transferred, in
connection with the New York Property and the Other New York Assets, and endorse
with the name of the New York Transferee any checks or drafts received on
account of the New York Property and the Other New York Assets, (c) from time to
time institute and prosecute any and all proceedings at law, in equity or
otherwise, that the New York Transferee may reasonably request, or permit the
New York Transferee (and provide the New York Transferee with all requisite
power(s) of attorney) to institute and prosecute any and all of such proceedings
in the name of the Debtor, in the name of the Receiver or otherwise, in order to
collect, assert or enforce any claim, right or title, of any kind, in and to the
property, assets, rights and privileges assigned and conveyed, or intended so to
be, in connection with the New York Property and the Other New York Assets, and
to defend and compromise any and all actions, suits or proceedings in respect of
any of such property, assets, rights and privileges,-and (d) generally do all
and any such acts and things in connection with the New York Property and the
Other New York Assets as the New York Transferee may reasonably request to give
effect to the provisions of the Plan. The Debtor, the Receiver and the
Receiver's Agent shall promptly transfer and deliver to the New York Transferee,
from time to time, any cash, checks, drafts or other property, including any
amounts paid as interest in respect thereof, transferred or to be transferred to
the New York Transferee, as provided herein.
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<PAGE>
Transfer of Texas Property
--------------------------
20. As of the Effective Date, the Texas Property and the Other Texas
Assets shall be transferred to the Texas Transferee pursuant to the Texas
Transfer Documents, as set forth in Section 4.2 of the Plan. Notwithstanding its
definition in the Plan, the term "Texas Deed" shall mean that deed without
warranty to be executed and delivered as of the Effective Date by the Debtor, as
grantor, in favor of the Texas Transferee, as grantee, in a form acceptable to
the Debtor, the Texas Mortgagee, and the Pension Fund Trustee.
21. Pursuant to section 1146(c) of the Bankruptcy Code, the transfer of
the Texas Property to the Texas Transferee, as provided for in Sections 4.2 and
7.2 of the Plan, shall be exempt from the imposition and payment of any and all
Transfer Taxes. The Texas Deed, the Assignment of Texas Ground Lease and any
other recordable Texas Transfer Documents shall be recorded in the Dallas County
Recorder's Office without the payment of any Transfer Taxes. Additionally, in
the event that the Texas Mortgagee or the Texas Transferee shall seek to record
this order, this order shall be recorded in the Dallas County Recorder's Office
without the payment of any Transfer Taxes.
22. The transfer of the Texas Property to the Texas Transferee, and the
transactions contemplated by the Plan, shall not constitute an extinguishment of
the indebtedness of the Debtor to the Texas Mortgagee or the extinguishment of
any liens held by the Texas Mortgagee, and will not constitute a merger of title
of any
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interest of the Texas Mortgagee. Any rights of redemption which may exist with
respect to the Texas Property are waived.
23. Each of the Debtor, the Texas Mortgagee and the Texas Transferee
shall be deemed to have acted in "good faith", within the meaning of sections
363(m) and 1129(a)(3) of the Bankruptcy Code, in delivering and accepting,
respectively, title to the Texas Property and the Texas Transfer Documents. In
connection with the transfer of the Texas Property and the delivery of the Texas
Transfer Documents to the Texas Transferee, as provided for in the Plan, the
Texas Transferee and all parties in interest in the Bankruptcy Case shall be
entitled to the protections afforded by section 363(m) of the Bankruptcy Code.
24. Unless the Texas Mortgagee shall in the exercise of its sole and
absolute discretion determine otherwise (or unless the Debtor has defaulted in
the performance of any of its obligations under the Texas Mortgage relating to
condemnation or casualty), under no circumstance and in no event shall the
occurrence of any casualty event or the commencement or continuation of any
condemnation proceeding with respect to the Texas Property postpone, delay or
otherwise affect or interfere with the occurrence of the Effective Date. Nothing
herein shall affect or alter the rights, including rights as a loss payee, of
the Texas Mortgagee under any insurance policies, whether procured by the Debtor
or otherwise.
25. Pursuant to section 1142(b) of the Bankruptcy Code, the Dallas
County Recorder's Office is hereby directed to record the Texas Deed, the
Assignment of Texas Ground Lease and any other recordable Texas Transfer
Documents without the payment of Transfer
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Taxes. The Texas Transferee will be responsible for the costs of any title
insurance obtained by the Texas Transferee in connection with its acquisition of
title to the Texas Property pursuant to the Plan.
26. Except as otherwise expressly agreed by the Texas Transferee, the
transfer of the Texas Property and the Other Texas Assets to the Texas
Transferee shall in no event impose on the Texas Transferee any obligation, duty
or liability arising prior to the Effective Date, including, without limitation,
any obligation of the Debtor to any taxing authority or trade creditor, or to
pay any indebtedness, obligations or liabilities of the Debtor.
27. On the Effective Date, the Debtor shall deliver (and cause its
counsel and any management personnel, brokers, appraisers, officers, directors
and other professionals employed by the Debtor to deliver) to the Texas
Transferee all books, records and other papers in their possession and in the
possession of the General Partners pertaining to the Texas Property and the
Other Texas Assets, and the Debtor and the General Partners shall use their
respective best efforts to furnish the Texas Transferee with such additional
information concerning the Texas Property and the Other Texas Assets and the
books and records relating thereto as the Texas Transferee may thereafter from
time to time request.
28. Without limiting the generality of the Debtor's obligation to
transfer the Other Texas Assets to the Texas Transferee pursuant to the Plan,
the Debtor shall turn over to the Texas Transferee or its designee on the
Effective Date all security deposits attributable to the Texas Property
(including all monies
15
<PAGE>
held in any security deposit account and all letters of credit or other non-cash
security).
29. From and after the Effective Date, the Debtor shall, at the Texas
Transferee's or the Texas Mortgagee's request, (i) transfer to the Texas
Transferee from time to time any and all property and assets, tangible or
intangible, which come into their possession promptly upon receipt thereof which
were intended to be transferred in connection with the Texas Property and the
Other Texas Assets or which constitute a part of the Texas Property or the Other
Texas Assets, (ii) collect for the account of the Texas Transferee, its
successors and assigns, all monies or other assets of any character and all
other items transferred, or intended to be transferred, in connection with the
Texas Property and the Other Texas Assets, and endorse with the name of the
Texas Transferee any checks or drafts received on account of the Texas Property
and Other Texas Assets, and (iii) generally do all and any such acts and things
in connection with the Texas Property and the Other Texas Assets as the Texas
Transferee may reasonably request to give effect to the provisions of the Plan.
Interim Operation of Properties
-------------------------------
30. The Receivership Orders, as the same shall have been modified or
supplemented with the Pension Fund Trustee's consent through the Confirmation
Date, shall remain in full force and effect through the Effective Date, except
that the Receiver shall transfer $1,000,000 in Cash into the Plan Fund on or
immediately after the Confirmation Date. Unless the Pension Fund Trustee and the
Receiver agree otherwise, on the Effective Date:
16
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a. the Receiver shall, and shall cause the Receiver's Agent
to, cease depositing funds into, and disbursing funds from, the Receiver Account
as currently required under the Receivership Orders (except that disbursements
may be made to honor checks drawn against the Receiver Account by the Receiver
or the Receiver's Agent prior to the Effective Date and presented for payment
after the Effective Date, provided that any disbursements made to honor such
checks shall not exceed the respective amounts of such checks).
b. All Cash in the Receiver Account (except for an amount
equal to checks drawn against the Receiver Account by the Receiver or the
Receiver's Agent prior to the Effective Date which were not presented for
payment and paid by the close of business on the Effective Date) shall be turned
over to the Pension Fund Trustee or its designee by close of business on the
Business Day immediately following the Effective Date. Any funds reserved in but
not disbursed from the Receiver Account after the Effective Date to honor checks
drawn against the Receiver Account prior to the Effective Date, together with
interest earned on the Receiver Account from and after the Effective Date, shall
be turned over to the Pension Fund Trustee or its designee as soon as
practicable but in no event more than 180 days after the Effective Date.
31. Subject only to the approval of the Pension Fund Trustee, which
approval may be withheld by the Pension Fund Trustee in its sole and absolute
discretion, the Receiver is authorized to enter into new leases relating to the
New York Property at any time prior to the Effective Date. To the extent
necessary or deemed
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<PAGE>
required by the Receiver, the Receiver may present an order authorizing the
Receiver to enter into any such new lease without notice to any party, provided
that the proposed order shall be approved as to substance and form by counsel
for the Pension Fund Trustee and shall provide that such lease shall be deemed
assigned to the New York Transferee on the Effective Date.
32. Following the Effective Date, in a time and manner consistent with
the custom and practice in New York State, the Receiver shall file his final
report and accounting with the New York State court as may be appropriate, and
shall seek from that court both approval of same and such further relief as may
be necessary.
33. Pending the transfer of the Texas Property contemplated herein, all
operations of the Texas Property will continue in accordance with the various
agreements which exist between the Debtor and the Texas Mortgagee and all prior
orders of this Court. Notwithstanding anything to the contrary in the foregoing,
that certain Agreement dated December 5, 1996 between the Debtor and the Texas
Mortgagee, as amended, shall be deemed null and void and be of no further force
or effect.
Vesting and Retention of Claims
-------------------------------
34. Except as set forth in the Plan or this order, on the Effective
Date the New York Transferee shall be vested with all of the property of the
estate free and clear of all claims, liens, charges and other interests of
creditors arising prior to the entry of this order, including any liabilities
based on any theory of successor or transferee liability which may exist under
applicable
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non-bankruptcy law, except for security interests or obligations created or
preserved by the Plan and the New York Transferee may, without further order of
this Court, use, sell, acquire, lease, abandon or otherwise dispose of its
property consistent with the Plan and this order, free and clear of any
restrictions imposed by the Bankruptcy Code.
35. A11 claims, defenses, causes of action, and objections to claims
are reserved for the benefit of and may be asserted by the New York Transferee.
36. To the fullest extent of its jurisdiction, the Court hereby
approves the provisions of Section 8.2 of the Plan and, in accordance with
Section 1142(b) of the Bankruptcy Code, orders the Debtor to execute the
releases described therein. On the Effective Date, all of the estate's interest
in the Debtor's Claims shall be released and unenforceable against the Pension
Fund Trustee's Related Parties.
Postconfirmation Obligations
----------------------------
37. The Debtor shall make payments to the United States Trustee in
accordance with the provisions of 28 U.S.C. ss. 1930(a)(6) and shall file such
reports with the Office of the United States Trustee as are reasonably
requested.
Implementation of Plan Provisions
---------------------------------
38. The Debtor, the General Partners, the Pension Fund Trustee, the
Receiver, the New York Transferee, the Texas Mortgagee, the Texas Transferee,
Emigrant, and all other persons are hereby authorized and directed to take all
actions and shall execute all documents as may be necessary, advisable, or
customarily required to
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<PAGE>
consummate the Plan as therein set forth and the transactions contemplated by
the Plan, so long as such actions and documents do not impose any additional
financial obligations on such parties other than those provided for herein and,
in the case of the Pension Fund Trustee, are in accordance with the Pension Fund
Trustee's obligations under the Employee Retirement Income Security Act and the
Plan.
39. All distributions under the Plan shall be made by the Pension Fund
Trustee or its designee, which shall be the duly appointed Disbursing Agent and
shall serve without bond. Any and all property held by the Disbursing Agent that
is to be distributed pursuant to the Plan shall be held in trust for the holders
of claims entitled thereto. On and after the Confirmation Date, the Disbursing
Agent shall promptly establish accounts as necessary to carry out the provisions
of the Plan and shall keep accurate records and account for all receipts and
disbursements. All property held by the Disbursing Agent that is to be
distributed pursuant to the Plan shall be invested in accordance with section
345 of the Bankruptcy Code. The Disbursing Agent's liability shall be limited to
those funds actually received by the Disbursing Agent as provided in the Plan.
40. Except as ordered by the Court or expressly provided in the Plan,
no interest shall accrue or become payable on any Distribution provided for
under the Plan prior to distribution thereof.
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Effective Date
--------------
41. The Pension Fund Trustee is hereby authorized to designate any
business day falling after the Confirmation Date as the Effective Date for all
purposes under the Plan; provided, however, that unless this Court orders
otherwise, the Pension Fund Trustee shall designate as the Effective Date a date
not later than sixty (60) days after the Confirmation Date. The Pension Fund
Trustee shall give notice of the Effective Date to the Debtor, the Receiver, the
United States Trustee, the Texas Mortgagee, and all creditors.
General and Miscellaneous
-------------------------
42. All references to the "Pension Fund Trustee" in the Plan shall be
to The Chase Manhattan Bank, as Trustee for the General Motors Corporation
Hourly-Rate Employes Pension Trust, and as Trustee for the General Motors
Corporation Salaried Employes Pension Trust, successor to Bankers' Trust
Company, as Trustee for the General Motors Corporation Hourly-Rate Employes
Pension Trust, and as Trustee for the General Motors Corporation Salaried
Employes Pension Trust, unless the context requires otherwise.
43. This Court shall retain jurisdiction, to the extent permitted by
applicable law and Article VIII of the Plan, over this Chapter 11 case, the
Debtor, and the property of the Debtor for the purposes provided in the Plan and
this order until this Chapter 11 case is closed and a final decree is entered.
44. Each federal, state, and local governmental agency or department is
hereby directed to accept any and all documents and instruments necessary and
appropriate to consummate the Plan.
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45. To the extent the Plan and this order are inconsistent, this order
shall control. To the extent required, this order shall be deemed a plan
modification supplementing the Plan and approved by this Court.
46. Capitalized terms appearing in this order and not otherwise defined
herein shall have the meanings assigned to such terms in the Plan.
DATED: SEPTEMBER 17, 1998 EDWARD D. JELLEN
------------------ ------------------------------
United States Bankruptcy Judge
22
