SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
Quarterly Report under Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the quarter ended September 30, 1996 Commission file #0-13545
JMB/245 PARK AVENUE ASSOCIATES, LTD.
(Exact name of registrant as specified in its charter)
Illinois 36-3265541
(State of organization) (I.R.S. Employer Identification No.)
900 N. Michigan Ave., Chicago, Illinois 60611
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code 312-915-1960
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X No
TABLE OF CONTENTS
PART I FINANCIAL INFORMATION
Item 1. Financial Statements . . . . . . . . . . . . . . . 3
Item 2. Management's Discussion and
Analysis of Financial Condition and
Results of Operations. . . . . . . . . . . . . . . 9
PART II OTHER INFORMATION
Item 3. Defaults Upon Senior Securities. . . . . . . . . . 10
Item 5. Other Information. . . . . . . . . . . . . . . . . 11
Item 6. Exhibits and Reports on Form 8-K . . . . . . . . . 12
<TABLE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
JMB/245 PARK AVENUE ASSOCIATES, LTD.
(A LIMITED PARTNERSHIP)
BALANCE SHEETS
SEPTEMBER 30, 1996 AND DECEMBER 31, 1995
(UNAUDITED)
ASSETS
------
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1996 1995
------------- ------------
<S> <C> <C>
Cash and cash equivalents . . . . . . . . . . . . . . . . . . . . . . . $ 6,178 4,275
------------ ------------
$ 6,178 4,275
============ ============
LIABILITIES AND PARTNERS' CAPITAL ACCOUNTS (DEFICITS)
------------------------------------------------------
Current liabilities:
Accounts payable. . . . . . . . . . . . . . . . . . . . . . . . . . . $ 34,279 62,089
Deferred interest payable to affiliate. . . . . . . . . . . . . . . . 5,779,648 3,506,301
Demand note payable to affiliate. . . . . . . . . . . . . . . . . . . 12,375,592 12,029,591
------------ ------------
Total current liabilities . . . . . . . . . . . . . . . . . . 18,189,519 15,597,981
Notes payable to affiliate - long-term. . . . . . . . . . . . . . . . . 43,236,631 43,236,631
------------ ------------
Commitments and contingencies
Total liabilities . . . . . . . . . . . . . . . . . . . . . . 61,426,150 58,834,612
Investment in unconsolidated venture, at equity . . . . . . . . . . . . 80,332,968 76,242,265
Partners' capital accounts (deficits):
General partners:
Capital contributions . . . . . . . . . . . . . . . . . . . . . . . 1,000 1,000
Cumulative cash distributions . . . . . . . . . . . . . . . . . . . (480,000) (480,000)
Cumulative net earnings (losses). . . . . . . . . . . . . . . . . . (13,514,219) (13,113,399)
------------ ------------
(13,993,219) (13,592,399)
------------ ------------
Limited partners (1,000 interests):
Capital contributions, net of offering costs. . . . . . . . . . . . 113,057,394 113,057,394
Cumulative cash distributions . . . . . . . . . . . . . . . . . . . (7,520,000) (7,520,000)
Cumulative net losses . . . . . . . . . . . . . . . . . . . . . . . (233,297,115) (227,017,597)
------------ ------------
(127,759,721) (121,480,203)
------------ ------------
Total partners' capital accounts (deficits) . . . . . . . . . (141,752,940) (135,072,602)
------------ ------------
$ 6,178 4,275
============ ============
<FN>
See accompanying notes to financial statements.
</TABLE>
<TABLE>
JMB/245 PARK AVENUE ASSOCIATES, LTD.
(A LIMITED PARTNERSHIP)
STATEMENTS OF OPERATIONS
THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1996 AND 1995
(UNAUDITED)
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30 SEPTEMBER 30
-------------------------- --------------------------
1996 1995 1996 1995
----------- ---------- ----------- ----------
<S> <C> <C> <C> <C>
Income:
Interest income . . . . . . . . . . . . . . . . $ -- -- -- --
----------- ---------- ----------- ----------
Expenses:
Interest. . . . . . . . . . . . . . . . . . . . 763,520 804,647 2,273,347 2,370,251
Professional services . . . . . . . . . . . . . 111,532 7,545 242,028 35,745
General and administrative. . . . . . . . . . . 42,070 11,159 74,260 40,707
----------- ---------- ----------- ----------
917,122 823,351 2,589,635 2,446,703
----------- ---------- ----------- ----------
Operating earnings (loss) . . . . . . . (917,122) (823,351) (2,589,635) (2,446,703)
Partnership's share of earnings (loss)
from operations of unconsolidated
venture . . . . . . . . . . . . . . . . . . . . (541,976) (1,498,095) (4,090,703) (3,061,255)
----------- ---------- ----------- ----------
Net earnings (loss) . . . . . . . . . . $(1,459,098) (2,321,446) (6,680,338) (5,507,958)
=========== ========== =========== ==========
Net earnings (loss) per
limited partnership
interest. . . . . . . . . . . . . . . $ (1,372) (2,182) (6,280) (5,177)
=========== ========== =========== ==========
<FN>
See accompanying notes to financial statements.
</TABLE>
<TABLE>
JMB/245 PARK AVENUE ASSOCIATES, LTD.
(A LIMITED PARTNERSHIP)
STATEMENTS OF CASH FLOWS
NINE MONTHS ENDED SEPTEMBER 30, 1996 AND 1995
(UNAUDITED)
<CAPTION>
1996 1995
------------ -----------
<S> <C> <C>
Cash flows from operating activities:
Net earnings (loss) . . . . . . . . . . . . . . . . . . . . . . . . . . . $ (6,680,338) (5,507,958)
Items not requiring (providing) cash or cash equivalents:
Partnership's share of loss from operations of
unconsolidated venture. . . . . . . . . . . . . . . . . . . . . . . . 4,090,703 3,061,255
Changes in:
Accounts payable. . . . . . . . . . . . . . . . . . . . . . . . . . . . (27,810) 20,955
Accrued interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,273,347 1,357,460
------------ -----------
Net cash provided by (used in) operating activities . . . . . . . (344,098) (1,068,288)
------------ -----------
Cash flows from financing activities:
Bank overdraft. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -- (11,212)
Principal payments on bank obligations payable. . . . . . . . . . . . . . -- (2,707,000)
Fundings of note payable to affiliate . . . . . . . . . . . . . . . . . . 346,001 3,786,500
------------ -----------
Net cash provided by (used in) financing activities . . . . . . . 346,001 1,068,288
------------ -----------
Net increase (decrease) in cash and cash equivalents. . . . . . . $ 1,903 --
============ ===========
Supplemental disclosure of cash flow information:
Cash paid for mortgage and other interest . . . . . . . . . . . . . . . . $ -- 1,012,791
============ ===========
Non-cash investing and financing activities . . . . . . . . . . . . . . . $ -- --
============ ===========
<FN>
See accompanying notes to financial statements.
</TABLE>
JMB/245 PARK AVENUE ASSOCIATES, LTD.
(A LIMITED PARTNERSHIP)
NOTES TO FINANCIAL STATEMENTS
SEPTEMBER 30, 1996 AND 1995
(UNAUDITED)
GENERAL
Readers of this quarterly report should refer to the Partnership's
audited financial statements for the fiscal year ended December 31, 1995,
which are included in the Partnership's 1995 Annual Report on Form 10-K
(File No. 0-13545) filed on March 25, 1996, as certain footnote disclosures
which would substantially duplicate those contained in such audited
financial statements have been omitted from this report. Capitalized terms
used but not defined in this quarterly report, have the same meaning as the
Partnership's 1995 Annual Report on Form 10-K
The preparation of financial statements in accordance with GAAP
requires the Partnership to make estimates and assumptions that affect the
reported or disclosed amount of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements
and the reported amounts of revenues and expenses during the reporting
period. Actual results could differ from these estimates.
Certain amounts in the 1995 financial statements have been
reclassified to conform with the 1996 presentation.
Statement of Financial Accounting Standards No. 121 was adopted by the
Partnership on January 1, 1996.
245 PARK
As a result of the well-publicized financial difficulties of the O&Y
partners and their affiliates, in October 1995 each of the O&Y partners and
certain other O&Y affiliates (but not the joint venture) filed for
bankruptcy protection from creditors under Chapter 11 of the United States
Bankruptcy Code. Since that time, the O&Y partners and these certain
other O&Y affiliates have been attempting to restructure their ownership
interest in various office buildings, including their interest in the 245
Park Avenue office building. In connection with such restructuring, the
joint venture filed for bankruptcy under Chapter 11 of the United States
Bankruptcy Code in April 1996 seeking approval of a plan of reorganization
by its creditors and the partners of the joint venture, including the
Partnership and in August 1996, an Amended Plan of Reorganization and
Disclosure Statement (the "Plan") was filed with the Bankruptcy Court. The
Plan was accepted by the various classes of claims and equity holders and
confirmed by the Court on September 20, 1996. The Plan will become
effective upon completion of several additional steps. The conditions to
the Plan being effective include, but are not limited to, the completion of
significant refinancing and capital transactions regarding 245 Park Avenue
as well as other properties. The effective date of the Plan, by its terms,
must occur no later than December 31, 1996. There can be no assurance that
the Plan will be made effective. If the Plan is made effective, the
Partnership will own (through a limited liability company of which the
Partnership is a 99% member) an approximate 5.44% general partner interest
in a newly formed partnership, World Financial Properties,L.P. ("WFP LP").
Certain structuring details remain to be finalized. The managing general
partner of WFP LP would be an entity affiliated with certain O&Y creditors
and the proponents of the Plan. WFP LP's principal assets will be majority
and controlling interests in the following six office buildings:
PROPERTY AND LOCATION NET RENTABLE AREA
One World Financial Center 1,510,987 square feet
New York, New York
Two World Financial Center 2,581,228 square feet
New York, New York
Four World Financial Center 1,813,659 square feet
New York, New York
One Liberty Plaza 2,100,000 square feet
New York, New York
245 Park Avenue 1,617,779 square feet
New York, New York
53 State Street 1,120,162 square feet
Boston, Massachusetts
Effectiveness of the Plan is conditioned upon refinancings of the
first and junior mortgage loans secured by 245 Park Avenue in the aggregate
principal amount of approximately $383,000,000 at September 30, 1996. As
previously reported, the first mortgage loan matured January 1, 1994 and
the junior mortgage loans matured on October 1, 1994. The joint venture
and the first mortgage lender have continued to negotiate a modification
and extension of the first mortgage loan. While negotiations with the
first mortgage lender have been taking place, such lender has refrained
from taking any actions or exercising any of its remedies as a result of
the loan having matured on January 1, 1994, and the joint venture has
continued to make monthly payments of principal and interest. To date, the
holder of the junior mortgage loans has refrained from taking any action or
exercising any of its remedies as a result of the loans maturing on October
1, 1994, and the joint venture has continued to make, and the holder of the
junior loans has continued to accept, monthly payments of interest.
If the Plan is not consummated or the joint venture is unable to
extend its mortgage loans, the joint venture would likely not be able to
maintain ownership of the property as the lenders may seek to acquire the
property. If the lenders acquired title, the Partnership would then
proceed to terminate its affairs.
Even if the Plan is made effective, WFP LP and the Partnership will
each have a substantial amount of indebtedness. If the 245 Park Avenue
building were sold, regardless of whether the Plan is made effective, any
proceeds would be first applied to repayment of the mortgage and other
indebtedness. In any event, any net proceeds obtained by the Partnership
would then be used to satisfy notes payable to JMB Realty Corporation
(aggregating approximately $61,400,000 at September 30, 1996). Only after
such applications would any remaining proceeds be available to be
distributed to the Limited Partners. As a result, it is unlikely that the
Limited Partners ever will receive any significant portion of their
original investment. However, in the event of a sale or other disposition
of the property (including a transfer to the lenders), the Limited Partners
would recognize substantial gain for Federal income tax purposes
(corresponding to all or most of their deficit capital accounts for tax
purposes). For certain Limited Partners, such taxable gain may be largely
offset by suspended passive losses. Each Limited Partner's tax liability
will depend on such Limited Partner's own tax situation.
TRANSACTIONS WITH AFFILIATES
As noted on the accompanying balance sheets, the Partnership has notes
payable and related deferred interest payable to JMB Realty Corporation, an
affiliate of the General Partners.
In accordance with the Partnership agreement, the Corporate General
Partner and its affiliates are entitled to receive reimbursement for direct
expenses and out-of-pocket expenses related to the administration of the
Partnership and operation of the Partnership's real property investment.
Additionally, the Corporate General Partner and its affiliates are entitled
to reimbursements for portfolio management, legal and accounting services.
The Partnership incurred $5,300 and $10,599 for the nine months ended
September 30, 1996 and 1995, respectively, payable to an affiliate of the
general partner for portfolio management, legal and accounting services.
The Partnership had a total of $19,432 of such costs unpaid as of September
30, 1996.
UNCONSOLIDATED VENTURE - SUMMARY INFORMATION
Summary income statement information for 245 Park for the nine months
ended September 30, 1996 and 1995 is as follows:
1996 1995
----------- ----------
Total income . . . . . . . . . . $74,873,544 74,754,090
=========== ==========
Operating loss . . . . . . . . . $(8,478,140) (6,344,571)
=========== ==========
Partnership's share
of loss. . . . . . . . . . . . $(4,090,703) (3,061,255)
=========== ==========
245 Park received $16,350,000 in lease termination fees ($17,000,000
discounted at 9% for early payment) from Creditanstalt-Bankverien. The
related revenue will be recognized during 1996 when the tenant vacates the
premises.
ADJUSTMENTS
In the opinion of the Corporate General Partner, all adjustments
(consisting solely of normal recurring adjustments) necessary for a fair
presentation (assuming the Partnership continues as a going concern) have
been made to the accompanying figures as of September 30, 1996 and for the
three and nine months ended September 30, 1996 and 1995.
PART I. FINANCIAL INFORMATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Reference is made to the notes to the accompanying financial
statements for additional information concerning the Partnership's
investment.
The mortgage loans secured by the 245 Park Avenue building have
matured without repayment. If the plan does not become effective, 245 Park
may not be able to maintain an ownership interest in the property, as the
mortgage lenders may seek to acquire title to the property. In such event,
the Partnership would proceed to terminate its affairs. Accordingly, there
exists substantial doubt as to the Partnership's ability to continue as a
going concern. In the event of a sale or other disposition of the property
(including a transfer to the mortgage lenders), Limited Partners would
recognize a substantial gain for Federal income tax purposes (corresponding
to all or most of their deficit capital accounts for tax purposes),
regardless of whether any proceeds from such sale or other disposition were
available for distribution to the Limited Partners.
The Partnership's short-term liquidity is dependent upon additional
advances under the demand note payable to JMB.
RESULTS OF OPERATIONS
The increase in deferred interest payable to an affiliate as of
September 30, 1996 as compared to December 31, 1995 is due to the interest
accruals on certain of the term loans and the demand note payable to JMB.
The increase in demand note payable to an affiliate at September 30,
1996 as compared to December 31, 1995 is due to advances received from such
affiliate.
The decrease in interest expense for the three and nine month periods
ending September 30, 1996 compared to the same periods in 1995 is due to a
reduction in 1996 in the Partnership's variable rate notes payable.
The increase in professional services and general and administrative
for the three and nine months ended September 30, 1996 as compared to the
three and nine months ended September 30, 1995 is primarily attributable to
the restructuring of 245 Park.
The increase in the Partnership's share of loss from operations of
unconsolidated venture for the nine months ended September 30, 1996 as
compared to the nine months ended September 30, 1995 is primarily due to
increased property operating costs and mortgage interest expense accruing
at default rates in 1996. 245 Park had suspended the accrual of interest
at default rates on the first mortgage loan for the period March 1 through
July 31, 1995 according to the provisions of the refinancing commitment
entered into with the lender which has subsequently expired by its term.
The decrease in loss from operations of unconsolidated venture for the
three month period ending September 30, 1996 compared to the same period in
1995 is primarily due to reduction in interest expense on loans from the
O&Y Partners and their affiliates. During 1996, the joint venture ceased
accruing interest on these loans when 245 Park filed for bankruptcy
protection.
PART II. OTHER INFORMATION
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
245 Park's first mortgage loan in the approximate principal amount of
$190,500,000 had an extended maturity date of January 1, 1994. 245 Park
did not repay the principal and accrued interest on the loan at maturity,
but sought a modification and extension of the loan. The junior mortgage
loans, in the aggregate principal amount of approximately $192,500,000,
secured by the 245 Park Avenue office building, matured in October 1994
without repayment. 245 Park also sought modification and extension of each
of the junior mortgage loans. Reference is made to the notes for further
information concerning the mortgage loans.
<TABLE>
PART II. OTHER INFORMATION
ITEM 5. OTHER INFORMATION
OCCUPANCY
The following is a listing of approximate occupancy levels by quarter for the Partnership's investment
property:
<CAPTION>
1995 1996
------------------------------------- ------------------------------
At At At At At At At At
3/31 6/30 9/30 12/31 3/31 6/30 9/30 12/31
---- ---- ---- ----- ---- ---- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
245 Park Avenue
New York, New York. . . . . 95% 96% 96% 96% 96% 96% 96%
</TABLE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
3-A. Amended and Restated Agreement of Limited Partnership of
the Partnership is hereby incorporated by reference to Exhibit 3 to the
Partnership's report for December 31, 1992 on Form 10-K (File No. 0-13545)
filed on March 19, 1993.
3-B. Amendment to the Amended and Restated Agreement of
Limited Partnership of JMB/245 Park Avenue Associates, Ltd. by and between
JMB Park Avenue, Inc. and Park Associates, L.P. dated January 1, 1994 is
hereby incorporated by reference to Exhibit 3-B to the Partnership's Form
10-Q Report for March 31, 1995 (File No. 0-13545) filed on May 11, 1995.
4-A. Second Mortgage Note and related agreements between
Canadian Imperial Bank of Commerce and 245 Park Avenue
Company is hereby incorporated by reference to Exhibit 4-A to the
Partnership's Registration Statement on Form 10 (as amended) of the
Securities Exchange Act of 1934 (File No. 0-13545) filed on April 29, 1985.
4-B. $173,196,124.20 Mortgage Note dated September 28, 1983
between Aetna Life Insurance Company and O&Y Equity Corporation is hereby
incorporated by reference to Exhibit 4-D to the Partnership's Registration
Statement on Form 10 (as amended) of the Securities Exchange Act of 1934
(File No. 0-13545) filed on April 29, 1985.
4-C. $20,000,000 Mortgage Note dated September 28, 1983
between Aetna Life Insurance Company and O&Y Equity Corporation is hereby
incorporated by reference to Exhibit 4-E to the Partnership's Registration
Statement on Form 10 (as amended) of the Securities Exchange Act of 1934
(File No. 0-13545) filed on April 29, 1985.
4-D. Consolidation and Extension Agreement dated September
28, 1983 between Olympia and York Estates Company, O&Y Equity Corporation
and Aetna Life Insurance Company is hereby incorporated by reference to
Exhibit 4-F to the Partnership's Registration Statement on Form 10 (as
amended) of the Securities Exchange Act of 1934 (File No. 0-13545) filed on
April 29, 1985.
4-E. $20,000,000 refinanced Mortgage Note and Agreement dated
September 7, 1989 between Dai-Ichi Kangyo Bank and 245 Park Avenue Company
is hereby incorporated by reference to Exhibit 4-G to the Partnership's
report for December 31, 1989 on Form 10-K (File No. 0-13545) filed on March
28, 1990.
4-F. $17,000,000 Mortgage Note dated September 7, 1989
between Dai-Ichi Kangyo Bank and 245 Park Avenue Company is hereby
incorporated by reference to Exhibit 4-H to the Partnership's report for
December 31, 1989 on Form 10-K (File No. 0-13545) filed on March 28, 1990.
4-G. $4,000,000 Mortgage Note representing the $4,000,000
draw made in June 1990 is hereby incorporated by reference to Exhibit 4-I
to the Partnership's report for December 31, 1989 on Form 10-K (File No. 0-
13545) filed on March 28, 1990.
4-H. $4,000,000 Mortgage Note representing the $4,000,000
draw made in June 1991 is hereby incorporated by reference to Exhibit 4-J
to the Partnership's report for December 31, 1991 on Form 10-K (File No. 0-
13545) filed on March 27, 1992.
4-I. $17,000,000 Loan Agreement dated September 7, 1989
between 245 Park Avenue Company and Dai-Ichi Kangyo Bank is hereby
incorporated by reference to Exhibit 4-K to the Partnership's report for
December 31, 1992 on Form 10-K (File No. 0-13545) filed on March 19, 1993.
4-J. $4,000,000 Loan Agreement dated July 3, 1990 between 245
Park Avenue Company and Dai-Ichi Kangyo Bank is hereby incorporated by
reference to Exhibit 4-L to the Partnership's report for December 31, 1992
on Form 10-K (File No. 0-13545) filed on March 19, 1993.
4-K. Assignment of $147,500,000 mortgage dated September 7,
1989 between Canadian Imperial Bank of Commerce and Dai-Ichi Kangyo Bank,
Ltd. is hereby incorporated by reference to Exhibit 4-M to the
Partnership's report for December 31, 1992 on Form 10-K (File No. 0-13545)
filed on March 19, 1993.
4-L. Subordinated Demand Note dated December 31, 1993 between
JMB/245 Park Avenue and JMB Realty Corporation is hereby incorporated by
reference to Exhibit 4-R to the Partnership's report for December 31, 1993
on Form 10-K (File No. 0-13545) filed on March 25, 1994.
4-M. Letter of Commitment dated August 3, 1994 from Aetna and
245 Park Company detailing proposed terms to refinance the first mortgage
loan hereby incorporated by reference to Exhibit 4-S to the Partnership's
report for December 31, 1994 on Form 10-K (File No. 0-13545) filed on March
27, 1995.
4-N. Letter Agreement dated April 6, 1995 from Aetna to 245
Park Avenue Company detailing proposed terms to refinance the first
mortgage loan is hereby incorporated by reference to the Partnership's
report for March 31, 1995 on Form 10-Q (File No. 0-13545) filed on May 11,
1995.
4-O. $16,042,000 Second Amended and Restated Promissory Note
and related documents dated August 1, 1995 between JMB/245 Park Avenue
Associates and JMB Realty Corporation is hereby incorporated herein by
reference to the Partnership's report for September 30, 1995 on Form 10-Q
(File No. 0-13545) filed on November 13, 1995.
4-P. $25,000,000 Second Amended and Restated Promissory Note
and related documents dated August 1, 1995 between JMB/245 Park Avenue
Associates and JMB Realty Corporation is hereby incorporated herein by
reference to the Partnership's report for September 30, 1995 on Form 10-Q
(File No. 0-13545) filed on November 13, 1995.
4-Q. $2,194,631.25 Amended and Restated Promissory Note and
related documents dated August 1, 1995 between JMB/245 Park Avenue
Associates and JMB Realty Corporation is hereby incorporated herein by
reference to the Partnership's report for September 30, 1995 on Form 10-Q
(File No. 0-13545) filed on November 13, 1995.
4-R. Amended and Restated Demand Note dated August 1, 1995
between JMB/245 Park Avenue Associates and JMB Realty Corporation is hereby
incorporated herein by reference to the Partnership's report for September
30, 1995 on Form 10-Q (File No. 0-13545) filed on November 13, 1995.
4-S. Fourth Amendment to Loan Documents dated August 1, 1995
between JMB/245 Park Avenue Associates, Ltd. and JMB Realty Corporation
detailing amendments to the term loans is hereby incorporated herein by
reference to the Partnership's report for September 30, 1995 on Form 10-Q
(File No. 0-13545) filed on November 13, 1995.
4-T. Consent Agreement dated December 29, 1983 from JMB/245
Park Avenue Associates to Continental Illinois Bank of Chicago
(Continental) detailing the transactions for which the Partnership would
obtain Continental's consent is hereby incorporated herein by reference to
the Partnership's report for September 30, 1995 on Form 10-Q (File No. 0-
13545) filed on November 13, 1995.
4-U. Third Amended and Restated Security Agreement dated
August 1, 1995 between JMB/245 Park Avenue Associates, Ltd. and JMB Realty
Corporation is hereby incorporated herein by reference to the Partnership's
report for September 30, 1995 on Form 10-Q (File No. 0-13545) filed on
November 13, 1995.
10-A. Lease Agreement between Olympia and York 245 Lease
Company and 245 Park Avenue Company and Bear Stearns Companies, Inc. dated
March 6, 1987 is hereby incorporated by reference to Exhibit 10-E to the
Partnership's report for December 31, 1988 on Form 10-K (File No. 0-13545)
filed on March 27, 1989.
10-B. Side letter agreement dated March 6, 1987 between
Olympia & York 245 Lease Company, 245 Park Avenue Company and JMB/245 Park
Avenue Associates, Ltd. relating to the division of economic benefits and
costs of the Bear Stearns Companies, Inc. lease is hereby incorporated by
reference to Exhibit 10-F to the Partnership's report for December 31, 1992
on Form 10-K (File No. 0-13545) filed on March 19, 1993.
10-C. Amendment to Partnership Agreement, 245 Park Avenue
Company dated October 11, 1995 between JMB/245 Park Avenue Associates,
Ltd., O&Y Equity Company, L.P., O&Y 245 Corp., Olympia & York 245 Park
Avenue Holding Company, L.P. and 245 Corp. is hereby incorporated herein by
reference to the Partnership's report for September 30, 1995 on Form 10-Q
(File No. 0-13545) filed on November 13, 1995.
10-D. Consent and Agreement dated June 21, 1991 between
JMB/245 Park Avenue Associates, Ltd., 245 Park Avenue Company, Ltd., and O
& Y Equity Company, L.P. and Morgan Guarantee Trust Company of New York, is
hereby incorporated herein by reference to the Partnership's report for
March 31, 1996 on Form 10-Q (File No. 0-13545) filed on May 10, 1996.
10-E. Amended Business Certificate for Partners dated June 30,
1988 between O & Y Equity Company, L.P., Olympia & York 245 Park Avenue
Holding Company and JMB/245 Park Avenue Associates, Ltd., is hereby
incorporated herein by reference to the Partnership's report for March 31,
1996 on Form 10-Q (File No. 0-13545) filed on May 10, 1996.
10-F. First Amendment to First Amended and Restated Agreement
of General Partnership of 245 Park Avenue Company dated December 29, 1986
between JMB/245 Park Avenue Associates, Ltd., O & Y Equity Corp., Fame
Associates, and O & Y Interests Corp., is hereby incorporated herein by
reference to the Partnership's report for March 31, 1996 on Form 10-Q (File
No. 0-13545) filed on May 10, 1996.
10-G. Loan Transaction Agreement dated September 7, 1989
between O & Y Equity Company, L.P. and JMB/245 Park Avenue Associates,
Ltd., is hereby incorporated herein by reference to the Partnership's
report for March 31, 1996 on Form 10-Q (File No. 0-13545) filed on May 10,
1996.
10-H. Third Amended Joint Plan of Reorganization dated
September 12, 1996 is filed herewith.
27. Financial Data Schedule
(b) No reports on Form 8-K have been filed during the last quarter
of the period covered by this report.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Company has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
JMB/245 PARK AVENUE ASSOCIATES, LTD.
BY: JMB Park Avenue, Inc.
Corporate General Partner
By: GAILEN J. HULL
Gailen J. Hull, Vice President
Date: November 8, 1996
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following person in the capacity
and on the date indicated.
GAILEN J. HULL
Gailen J. Hull, Principal Accounting Officer
Date: November 8, 1996
JMB/245 PARK AVENUE ASSOCIATES, LTD.
EXHIBIT
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
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In re : Chapter 11 Case Nos.
92 B 42698 (JLG)
OLYMPIA & YORK : (Jointly Administered)
REALTY CORP., et al.,
:
:
Debtors.
:
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THIRD AMENDED JOINT PLAN OF REORGANIZATION
Dated: New York, New York
September 12, 1996
WEIL, GOTSHAL & MANGES LLP PROSKAUER ROSE GOETZ &
Attorneys for Debtors in MENDELSOHN LLP
Possession (Other than Attorneys for Battery Park
Olympia & York Tower B Lease Holdings Inc. and Carena
Company) Bancorp US, Inc.
767 Fifth Avenue 1585 Broadway
New York, New York 10153 New York, New York 10036
(212) 310-8000 (212) 969-3000
SIDLEY & AUSTIN COUDERT BROTHERS
Attorneys for Canadian Imperial Attorneys for Dragon
Bank of Commerce Holdings Limited
875 Third Avenue 1114 Avenue of the Americas
New York, New York 10022 New York, New York 10036
(212) 906-2000 (212) 626-4400
SHEARMAN & STERLING KAYE, SCHOLER, FIERMAN, HAYS
Attorneys for Citibank, N.A. & HANDLER LLP
153 East 53rd Street Attorneys for Olympia & York
New York, New York 10022 Tower B Lease Company, as
(212) 848-4000 Debtor and Debtor in
Possession
425 Park Avenue
New York, New York 10022
(212) 836-8000
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JOINT PLAN OF REORGANIZATION
Olympia & York Realty Corp., et al., the Debtors in the
above-captioned chapter 11 cases, and the Co- Proponents hereby propose the
following joint chapter 11 plans of reorganization for the Debtors:
SECTION 1. DEFINITIONS AND INTERPRETATION.
A. Definitions.
The following terms used herein and in the Disclosure Statement
shall have the respective meanings defined below:
1.1. Additional Payments has the meaning assigned to such term in
section 15.3 hereof.
1.2. Administrative Expense Claim means any right to payment
constituting a cost or expense of administration of the Reorganization
Cases allowed under sections 503(b) and 507(a)(1) of the Bankruptcy Code,
including (a) any actual and necessary costs and expenses of preserving the
estates of the Debtors, (b) any actual and necessary costs and expenses of
operating the businesses of the Debtors, (c) any indebtedness or
obligations incurred or assumed by the Debtors in Possession in connection
with the conduct of their business or for the acquisition or lease of their
properties, (d) any allowances of compensation and reimbursement of
expenses to the extent allowed by Final Order under section 330 or 503 of
the Bankruptcy Code, whether fixed before or after the Effective Date, (e)
any fees or charges assessed against the estate of the Debtors under
section 1930, chapter 123, title 28, United States Code, including any
post-Confirmation Date and post- Effective Date fees and charges, and (f)
any Claims treated as Administrative Expense Claims in accordance with
section 4.1 hereof.
1.3. Aetna means the Aetna Life Insurance Company.
1.4. Aetna Mortgage Loan means that certain mortgage loan in the
original principal amount of $220,000,000 made in accordance with that
certain Consolidation and Extension Agreement dated as of September 28,
1983 among Aetna, 245 Park Co. and Equityco, which loan
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is secured by a first mortgage on and an assignment of leases relating to
245 Park Avenue.
1.5. Aetna Mortgage Loan Claims means any Claim under or relating
to the Aetna Mortgage Loan.
1.6. Aetna Restructured Mortgage Loan means the Aetna Mortgage
Loan, as amended and modified in accordance with section 15.3(a) hereof and
the Aetna Restructured Mortgage Loan Documents.
1.7. Aetna Restructured Mortgage Loan Documents means the
documents required to execute and deliver the Aetna Restructured Mortgage
Loan, forms of which are annexed to the Plan as Exhibit A.
1.8. Affiliate means, with reference to any Entity, any other
Entity that, within the meaning of Rule 12b-2 promulgated under the
Securities Exchange Act of 1934, as amended, "controls," is "controlled by"
or is under "common control with" such Entity.
1.9. Aggregate Disallowed Amount means, for each class and/or
subclass and at any time, the difference between (a) the value as of the
Confirmation Date of the Equity Interests in Newco LP, Convertible Note
Interests, and the Cash in a reserve or escrow established in accordance
with this Plan, minus (b) the value, as of the Confirmation Date, of the
Equity Interests in Newco LP, Convertible Note Interests, and the Cash in
such reserve or escrow account needed to fund distributions as if each
remaining Disputed Claim were an Allowed Claim in its Maximum Allowable
Amount, taking into account any rights of the Disbursing Agent to deduct or
withhold distributions pursuant to section 20.3.4 hereof.
1.10. Allowed means, with reference to any Claim or Equity
Interest, (a) any Claim against or Equity Interest in any of the Debtors,
proof of which was filed within the applicable period of limitation fixed
by the Bankruptcy Court in accordance with Rule 3003(c)(3) of the
Bankruptcy Rules as to which (i) no objection to the allowance thereof has
been interposed within the applicable period of limitation fixed by this
Plan, the Bankruptcy Code, the Bankruptcy Rules, the Local Rules or a Final
Order, or (ii) no action has been commenced to avoid such Claim or Equity
Interest within the applicable period of limitation fixed by this Plan, or
(iii) an objection has been interposed, to the extent such Claim or Equity
Interest has been allowed
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(whether in whole or in part) by a Final Order, (b) if no proof of claim
was so filed, any Claim against or Equity Interest in the Debtors which has
been listed by the Debtors in their Schedules as liquidated in amount and
not disputed or contingent, (c) any Claim arising from the recovery of
property under section 550 or 553 of the Bankruptcy Code and allowed in
accordance with section 502(h) of the Bankruptcy Code, or (d) any Claim
allowed hereunder.
1.11. Allowed Club Loan Claims means the Club Loan Claims allowed
as of October 11, 1995, in accordance with the January 12th Settlement
Agreement Order, in the amount of $165,508,335.43 (plus interest and costs
from and after October 11, 1995 to the extent payable and allowable under
the agreements evidencing the Club Loan and under applicable law).
1.12. Amex means American Express Company and/or any Affiliate
thereof.
1.13. Amex/Retailco Lease means that certain lease dated June 15,
1983, as assigned pursuant to that certain Assignment and Assumption of
Retail Lease dated as of February 28, 1986 by Tower A Co. to Retailco, as
amended by that certain First Amendment of Retail Lease dated August 12,
1987.
1.14. Amex Settlement means the compromise and settlement of the
various Claims of Amex to be effected in accordance with section 4.8
hereof.
1.15. Apollo means Apollo Real Estate Investment Fund, L.P.
and/or any Affiliate thereof.
1.16. Available Cash means, as of any date and with respect to
any Debtor or successor to a Debtor under this Plan, the amount of Cash or
Cash equivalents available as of such date to make distributions to holders
of Administrative Expense Claims, Allowed Claims and Allowed Equity
Interests in accordance with this Plan, including, with respect to the
Entities owning Tower A, 245 Park Avenue and OLP, Cash that is subject to a
Lien of the mortgagee relating to such buildings to the extent such
mortgagee votes to accept the Plan or otherwise as ordered by the
Bankruptcy Court.
1.17. Baden means Baden Real Estate Corp., a Delaware corporation
and a Debtor in the Reorganization Cases.
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1.18. Baden Pledge means that certain pledge by Baden to Bank of
Nova Scotia of the MCJV Pledged Notes made pursuant to that certain
Assignment and Pledge Agreement dated February 25, 1992.
1.19. Ballot means the form or forms distributed to each holder
of an impaired Claim or Equity Interest on which is to be indicated
acceptance or rejection of this Plan.
1.20. Ballot Agent means Georgeson & Co., Inc., Wall Street
Plaza, New York, New York 10005, (212) 440-9820 or 1-800-223-2064.
1.21. Ballot Date means the date set by the Bankruptcy Court by
which all Ballots must be received.
1.22. Bank Leumi Claims means the Claims of Bank Leumi arising in
connection with the Decision, any Judgment, the Holdings Guaranty and the
Devco LP Loan Documents (each as defined in that certain Standstill
Agreement among the Family Corps., O&Y 25 Realty Company and O&Y 25 Realty
Company, L.P. and Bank Leumi, dated November 24, 1993).
1.23. Bank of Nova Scotia means The Bank of Nova Scotia and/or
any Affiliate thereof.
1.24. Bank of Nova Scotia Claims means any and all Claims of Bank
of Nova Scotia against Baden, MCJV and all other O&Y Affiliates arising
under or relating to the MCJV Pledged Notes, the Baden Pledge and the OYDL
Swap Agreements; provided, however, that "Bank of Nova Scotia Claims" shall
not include any Claims arising from or related to Bank of Nova Scotia's
status as a tenant at OLP.
1.25. Bank of Nova Scotia Settlement means the compromise and
settlement of the Bank of Nova Scotia Claims to be effected in accordance
with section 4.9 hereof.
1.26. Bankruptcy Code means the Bankruptcy Reform Act of 1978, as
amended and as codified at title 11, United States Code.
1.27. Bankruptcy Court means the United States District Court for
the Southern District of New York having jurisdiction over the
Reorganization Cases and, to the extent of any reference under section 157,
title 28, United
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States Code, the unit of such District Court constituted under section 151,
title 28, United States Code.
1.28. Bankruptcy Rules means the Federal Rules of Bankruptcy
Procedure as promulgated by the United States Supreme Court under section
2075, title 28, United States Code.
1.29. BPHI means Battery Park Holdings Inc.
1.30. BPHI Group means, collectively, BPHI, CIBC and Dragon.
1.31. BPHI Partnerships means, collectively, Tower A Co., Tower A
Holding, Tower B Holding I and Tower D Holding I.
1.32. BPHI Settlement means the compromise and settlement of
various Claims of and against BPHI and the Equity Interests of BPHI to be
effected in accordance with section 4.3 hereof and the Tower B Co. Plan.
1.33. Business Day means any day other than a Saturday, a Sunday,
any other day on which banking institutions in New York, New York are
required or authorized to close by law or executive order or Rosh Hashanah
(first day), Yom Kippur and the Friday after Thanksgiving.
1.34. Carena means Carena Bancorp US, Inc.
1.35. Cash means legal tender of the United States of America.
1.36. Catch-Up Cash Distribution means, for each such period for
which such amount shall be determined in accordance with section 20.5
hereof, and for each class entitled to be distributed Cash under this Plan,
a distribution in Cash equal to each holder of an Allowed Claim's Ratable
Proportion of the Aggregate Disallowed Amount.
1.37. Catch-Up Equity Distribution means, with respect to the
Class 8.6 Disputed Claims Equity Escrow, and for each such period for which
such amount shall be determined in accordance with section 20.5 hereof, a
distribution of that number of Equity Interests in Newco LP equal to each
holder of an Allowed Claim's Ratable Proportion of the Aggregate Disallowed
Amount, plus the
-6-
portion of the net earnings, dividends, distributions and interest
attributable thereto.
1.38. Causes of Action means any and all actions, causes of
action, liabilities, obligations, rights, suits, debts, sums of money,
damages, judgments, claims and demands whatsoever, whether known or
unknown, in law, equity or otherwise.
1.39. Chase Note means that certain Promissory Note, dated
September 20, 1994, made by Chase Family Limited Partnership No. 2 to O&Y
Finco in the original principal amount of $2,500,000, which promissory note
(a) provides for five equal annual installments of $500,000 payable on
September 20 in 1995, 1996, 1997, 1998 and 1999, (b) does not accrue
interest unless an event of default thereunder has occurred, and (c) was
assigned by O&Y Finco to Baden in connection with that certain Memorandum
of Sale among Baden, Devco, Equityco and O&Y Finco, dated as of October 11,
1995.
1.40. CIBC means Canadian Imperial Bank of Commerce and/or any
Affiliate thereof.
1.41. CIBC Amended and Restated Indemnity Agreement means that
certain Indemnity Agreement to be executed and delivered by Newco LP on the
Effective Date in accordance with sections 7.9 and 18.15 hereof.
1.42. CIBC/Lost Note Indemnity means that certain Indemnification
Agreement dated January 6, 1995 among O&Y Finco, Equityco, Equity GP and
CIBC, pursuant to which O&Y Finco, Equityco and Equity GP indemnified CIBC
and certain of its designees from any and all losses, costs, liabilities,
claims, damages, fines, penalties and expenses relating to the loss or
misplacement of the original of a certain promissory note made by 3832
Associates to the National Bank of Canada, New York Branch, as amended
pursuant to that certain undated Allonge to Note executed by National Bank
of Canada, New York Branch and as endorsed by such bank to O&Y Finco, which
note is in the principal amount of $25,000,000.
1.43. CIBC/Lost Note Indemnity Claims means any Claim under or
relating to the CIBC/Lost Note Indemnity.
1.44. CIBC/OLP Claims means any Claim under or relating to the
CIBC/OLP Loan, including (a) any and all Claims relating to or Liens
securing the Allowed CIBC/OLP Claims or granted by any of the Debtors
and/or any of their
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Affiliates or (b) any and all Claims based upon guarantees of collection,
payment or performance of any obligation of any of the Debtors relating to
the CIBC/OLP Loan and any and all Liens granted by any such Debtor or
Affiliate to secure such guarantee(s) or obligation(s).
1.45. CIBC/OLP Loan means that certain loan made in accordance
with that certain Credit Agreement dated September 26, 1991 between U.S.
Finco and CIBC, in the original principal amount of $55,000,000, which loan
is secured by (a) a pledge and collateral assignment by U.S. Finco of its
interest in the U.S. Finco Mortgages, (b) the pledge and collateral
assignment by Devco and Devco GP of their partner interests in OLP Co.,
Trinity Place Co. and Liberty Plaza Co., and (c) payment guarantees from
OYDL, Devco and Devco GP.
1.46. Citibank means Citibank, N.A. and/or any Affiliate thereof.
1.47. Citibank Canada means Citibank Canada, a Canadian banking
corporation.
1.48. Citibank Canada Claims means any Claim under or relating to
the Citibank Canada Loan.
1.49. Citibank Canada Loan means that certain loan made in
accordance with a loan agreement dated February 17, 1988, between Citibank
Canada and Realty Corp., as amended.
1.50. Citibank Letter of Credit means that certain irrevocable
standby letter of credit of Citibank issued pursuant to that certain Letter
of Credit Agreement dated September 27, 1983 by Citibank in favor of
Park-Lex Co., the reimbursement obligation of Equityco relating to which is
secured by various marketable securities.
1.51. Citibank Letter of Credit Claims means any Claim under or
relating to the Citibank Letter of Credit.
1.52. Citibank Swap Claim means that certain Secured Claim
relating to an Interest Rate and Currency Exchange Agreement, dated as of
August 14, 1989, between Devco and Citibank.
1.53. Claim means (a) right to payment or alleged right to
payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent,
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matured, unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured; or (b) right to an equitable remedy or alleged right to an
equitable remedy for breach of performance of an obligation, if such breach
gives rise to a right to payment, whether or not such right to an equitable
remedy or such right to payment is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured, or unsecured.
1.54. Claims Objection Deadline means, with respect to parties in
interest other than the Debtors, the Confirmation Date or such other date
as may be ordered by the Bankruptcy Court, and, with respect to the
Debtors, one hundred and twenty (120) days after the Effective Date, unless
extended by order of the Bankruptcy Court.
1.55. Class A Interests means the Class A Limited Partner
Interests in Newco LP to be issued as described in section 18.1.1 hereof.
1.56. Class B Interests means the Exchangeable Class B Limited
Partner Interests in Newco LP to be issued as described in section 18.1.1
hereof.
1.57. Class 8.6 Disputed Claims Equity Escrow means the
interest-bearing escrow account in which Class A Interests and Class B
Interests shall be held in accordance with section 20.3.3 hereof.
1.58. Club Loan means that certain Revolving Credit Agreement
dated June 21, 1991 in the original principal amount of $160,000,000, made
by Morgan Guaranty Trust Company of New York, as agent, to, among other O&Y
Affiliates, Devco, secured by, among other things, pledges of partner
interests and other miscellaneous interests in the following six
properties: (a) Tower A, (b) Tower B, (c) 245 Park Avenue, (d) Maiden Lane,
(e) 11601 Wilshire and (f) 400 South Hope Street.
1.59. Club Loan Claims means any and all Claims under or relating
to the Club Loan, including (a) any and all Claims relating to or Liens
securing the Allowed Club Loan Claims against or granted by any of the
Debtors and/or any of their Affiliates and (b) any and all Claims based
upon or Liens securing any guarantees of collection, payment or performance
of any obligation of any of the Debtors relating to the Club Loan.
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1.60. Club Loan/245 Park Deficiency Claim means any Deficiency
Claim relating to the Allowed Club Loan Claims against 245 Corp. and 245
Holding LP.
1.61. Club Loan Transferors means the holders of the Club Loan
who are obligated to transfer their respective interests in the Club Loan
to certain of the Co-Proponents upon the terms and subject to the
conditions set forth in the January 12th Settlement Agreement.
1.62. Collateral means any property or interest in property of
the estate of a Debtor subject to a Lien to secure the payment or
performance of a Claim.
1.63. Compensation Claim means that portion of an Allowed Claim
representing compensation that is subject to withholding and employment tax
requirements under applicable law.
1.64. Confirmation Date means the date on which the Clerk of the
Bankruptcy Court enters the Confirmation Order.
1.65. Confirmation Hearing means the hearing held by the
Bankruptcy Court to consider confirmation of this Plan, as it may be
adjourned or continued from time to time.
1.66. Confirmation Order means the order of the Bankruptcy Court
confirming this Plan.
1.67. Consolidated Devco means Devco, Devco GP, Equityco, Equity
GP, U.S. Finco, and O&Y Finco, as substantively consolidated in accordance
with section 2.1 hereof.
1.68. Consolidated Devco Convenience Claim means (a) an Allowed
Unsecured Claim against any of the Consolidated Devco Entities equal to
$5,000 or less, (b) the Allowed Unsecured Claim against any of the
Consolidated Devco Entities of a holder that has irrevocably elected on its
Ballot to reduce its Claim against any of the Consolidated Devco Entities
to the amount of $5,000 or less, and/or (c) a Disputed Unsecured Claim
against any of the Consolidated Devco Entities which became an Allowed
Unsecured Claim of $5,000 or less with the consent of and in the amount
agreed to by a Debtor and the Co-Proponents; provided, however, that the
Unsecured Claim of a holder of more than one Unsecured Claim against any of
the Debtors may not be a Consolidated Devco Convenience Claim unless the
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holder has irrevocably elected on its Ballot to withdraw, consolidate,
amend and reduce all Unsecured Claims held by it against any of the Debtors
to one consolidated Unsecured Claim against the Consolidated Devco Entities
in the amount of $5,000 or less.
1.69. Consolidated Devco Entities means, collectively, Devco,
Devco GP, Equityco, Equity GP, U.S. Finco and O&Y Finco.
1.70. Consolidated Realty Corp. means Realty Corp., OYREUSA and
Baden, as substantively consolidated in accordance with section 2.2 hereof.
1.71. Consolidated OLP means Liberty Plaza Co., OLP Co. and
Trinity Place Co., as substantively consolidated in accordance with section
2.3 hereof.
1.72. Consolidated 245 means 245 Park Co., 245 Holding LP and 245
Corp., as substantively consolidated in accordance with section 2.4 hereof.
1.73. Controlled Affiliate means any O&Y Affiliate that is
controlled by one or more of Devco, Devco GP, Equityco, Equity GP, Realty
Corp., OYREUSA, Baden, and U.S. Finco; provided, however, that in all
events, Controlled Affiliate shall include O&Y Concord 60 Broad Street
Company and 245 Park Co.; and provided, further, that Controlled Affiliate
shall not include U.S. Holdings.
1.74. Controlling Interest means greater than 50% of the
outstanding Equity Interests in Newco LP.
1.75. Conversion Notice has the meaning assigned to such term in
section 7.11.1 hereof.
1.76. Conversion Right has the meaning assigned to such term in
section 7.11.1 hereof.
1.77. Convertible Note means that certain convertible note to be
issued by Newco LP to the holders of Allowed Unaffiliated Unsecured Claims
in the original principal amount equal to the product of (a) 5.71%
multiplied by (b) the sum of (i) the aggregate amount of Allowed
Unaffiliated Unsecured Claims and (ii) the Disputed Unaffiliated Unsecured
Claims as of the Effective Date in their Maximum Allowable Amounts, a form
of the note and indenture relating to which is annexed to the Plan as
Exhibit B.
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1.78. Convertible Note Indenture Trustee means the indenture
trustee for the Convertible Note, which shall be selected by the Creditors'
Committee prior to the Effective Date and whose selection shall be
reasonably satisfactory to the Co-Proponents and the Debtors.
1.79. Convertible Note Interests means the interests in the
Convertible Note to be distributed to each holder of an Allowed
Unaffiliated Unsecured Claim in accordance with section 7.11.1 hereof, and
to the Subclass 7.11.1 Disputed Claims Debt/Equity Escrow in accordance
with section 20.3.2 hereof, which interests will either be in the form of
(a) uncertificated beneficial interests or (b) certificated, individual
notes evidencing such interests, as may be determined by the Debtors, the
Co-Proponents and the Creditors' Committee.
1.80. Coopers & Lybrand OYDL, Inc./Limited means, collectively,
(a) Coopers & Lybrand OYDL, Inc., (b) Coopers & Lybrand Limited, as the
trustee in bankruptcy for OYDL, (c) all current or former partners or
owners of the foregoing (including current or former owners of any direct
or indirect interest in the foregoing), and (d) all current and former
officers, directors, trustees, employees, agents, attorneys, accountants,
financial advisors, investment bankers, appraisers, advisors and engineers
of any of the foregoing.
1.81. Co-Proponent Unsecured Claims means, collectively, (a) all
General Unsecured Claims against one or more of the Consolidated Devco
Entities held at any time by any Co-Proponent (other than any Claim or
portion thereof proof of which was filed by Citibank to account for Banco
di Roma's $10,000,000 in original principal amount participation in the
loan made by Citibank to the predecessor of Olympia & York Massachusetts
Financial Company, which Claim is an Allowed Unaffiliated Unsecured Claim),
whether or not at any relevant time such Claim is continued to be held by
such Co-Proponent, and (b) all General Unsecured Claims transferred, or
presently contemplated to be transferred, to certain of the Co- Proponents
by the Club Loan Transferors in accordance with the January 12th Settlement
Agreement.
1.82. Co-Proponents means, collectively, BPHI, Carena, CIBC,
Dragon and Citibank and/or any Affiliates (excluding any Debtors or O&Y
Affiliates) of such Entities.
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1.83. Co-Proponents' Capital Infusion means that certain capital
contribution of $75,000,000 to Newco LP to be provided by the Co-Proponents
in accordance with section 18.12 hereof.
1.84. Core Properties means, collectively, 53 State Street, OLP,
245 Park Avenue, Tower A, Tower B, and Tower D.
1.85. Creditors' Committee means the Official Committee of
Unsecured Creditors appointed under section 1102 of the Bankruptcy Code in
the Reorganization Cases that commenced on October 11, 1995.
1.86. Debtors means collectively, Realty Corp., SF Holdings,
Devco, Equityco, Devco Canada, Equity Canada, Devco GP, Equity GP, U.S.
Finco, O&Y Finco, OYREUSA, Baden, Tower Corp., Tower A Co., 245 Park Co.,
245 Holding LP, 245 Corp., OLP Co., Liberty Plaza Co., Trinity Place Co.
and Tower B Leaseco.
1.87. Debtors in Possession means the Debtors in their respective
capacities as debtors in possession under sections 1107(a) and 1108 of the
Bankruptcy Code.
1.88. Default Interest Component has the meaning assigned to such
term in section 15.3 hereof.
1.89. Deficiency Claim means, with reference to a Claim secured
by a Lien against Collateral, an amount equal to the difference between (a)
the aggregate amount of such Claim after giving effect to the operation of
section 1111(b)(1)(A) of the Bankruptcy Code and (b) the amount of such
Claim that is a Secured Claim; provided, however, that, in the event that
the class in which such Secured Claim is classified makes the election
under section 1111(b)(2) of the Bankruptcy Code in accordance with Rule
3014 of the Bankruptcy Rules, the Deficiency Claim otherwise relating to
such Secured Claim shall be extinguished.
1.90. Devco means O&Y (U.S.) Development Company, L.P., a
Delaware limited partnership and a Debtor in the Reorganization Cases.
1.91. Devco Canada means O&Y (U.S.) Development Canada Ltd., a
New Brunswick corporation and a Debtor in the Reorganization Cases.
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1.92. Devco GP means O&Y (U.S.) Development General Partner
Corp., a Delaware corporation and a Debtor in the Reorganization Cases.
1.93. Dev Holding Corp. means O&Y Development Holding Corp., a
Delaware corporation, and an O&Y Affiliate.
1.94. DIP Loan means that certain debtor in possession credit
agreement executed and delivered by and among Citicorp Real Estate Inc.,
CIBC and Carena, as lenders, Citicorp Real Estate Inc., as agent, and
Devco, Devco GP, Equityco, Equity GP, Devco Canada, Equity Canada, Realty
Corp., OYREUSA, Baden, U.S. Finco, Tower B Co. and WFC Fincorp, as
borrowers, and Citibank, as the same may be amended from time to time,
which credit agreement was approved by the DIP Order.
1.95. DIP Order means, collectively, those certain orders of the
Bankruptcy Court dated June 17, 1996 and July 26, 1996 approving the DIP
Loan entered in the chapter 11 cases In re Olympia & York Realty Corp. et
al., Chapter 11 Case Nos. 92 B 42698 (JLG), In re Olympia & York Tower B
Co., Chapter 11 Case No. 96 B 42186 (JLG), and In re Olympia & York World
Financial Center Finance Corp., Chapter 11 Case No. 95 B 43135 (JLG).
1.96. Disbursing Agent means, prior to the Effective Date, Devco
GP and, from and after the Effective Date, Newco LP.
1.97. Disclosure Statement means the Disclosure Statement
relating to this Plan, dated as of the date hereof, including the exhibits
thereto, as the same may be amended, modified or supplemented from time to
time.
1.98. Disputed Claim means (a) a Claim against a Debtor to the
extent that the allowance of such Claim is the subject of an objection,
appeal or a motion to estimate interposed by a party in interest prior to
the Claims Objection Deadline, which objection, appeal or motion has not
been determined by a Final Order or (b) prior to the Claims Objection
Deadline, to the extent that any Claim is scheduled as other than disputed,
contingent or unliquidated, that portion of a Claim in excess of the amount
of the Claim scheduled by the Debtors.
1.99. Disputed Claims Cash Reserve means one or more segregated
accounts in which Cash shall be held in accordance with section 20.3
hereof.
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1.100. Disputed Claims Convertible Note Interests means that
number of Convertible Note Interests to be issued in accordance with
section 20.3.2 hereof in the amount equal to the amount that would be
distributable on account of the aggregate amount of Disputed Claims in
Subclass 7.11.1 as if such Disputed Claims were Allowed Claims in their
respective Maximum Allowable Amounts on the Effective Date.
1.101. Disputed Equity Interest means any claim of ownership of
an Equity Interest in a Debtor to the extent that the allowance thereof is
the subject of a timely objection interposed by a Debtor or other party in
interest in accordance with section 20.1 hereof, which objection has not
been determined by a Final Order.
1.102. Disputed MCJV Recovery means the recovery that may be
realized by Baden or a subsidiary thereof from the sale of the MCJV Lands,
the amount of which is dependent upon the resolution of the claims alleged
in a suit captioned In re Holywell Corp., Case No. 84-01590/94-BKC- PGH,
before the United States Bankruptcy Court for the Southern District of
Florida.
1.103. Disputed Realty Corp. Assets means the Disputed MCJV
Recovery and the Disputed SF Cash.
1.104. Disputed SF Cash means the Cash of SF Holdings, subject to
a claim of ownership made by Coopers & Lybrand OYDL, Inc./Limited in a case
before the Ontario Court of Justice captioned Coopers & Lybrand Limited v.
Olympia & Realty Corp. and Olympia & York SF Holdings Corporation, Ontario
Court Action No. 93-CQ-38609.
1.105. DKB means The Dai Ichi Kangyo Bank, Limited.
1.106. DKB Mortgage Loan means the three mortgage loans made by
DKB to 245 Park Co., under that certain Financing Transaction for 245 Park
Avenue, New York, New York, among 245 Park Co., 245 Leaseco, DKB, CIBC and
Aetna dated September 7, 1989, as amended, in the original aggregate
principal amount of $192,500,000, which mortgage loans matured on October
1, 1994, and which mortgage loans are secured by second, third and fourth
mortgages on and assignments of leases relating to 245 Park Avenue.
1.107. DKB Mortgage Loan Claims means any Claim under or relating
to the DKB Mortgage Loan.
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1.108. DKB Restructured Mortgage Loan means the DKB Mortgage
Loan, as amended and modified in accordance with section 15.4 hereof and
the DKB Restructured Mortgage Loan Documents.
1.109. DKB Restructured Mortgage Loan Documents means the
documents required to execute and deliver the DKB Restructured Mortgage
Loan, the cash management agreement and subordination agreement of which
are annexed to the Plan as Exhibit C.
1.110. Dragon means Dragon Holdings Limited or its designee.
1.111. Dragon Settlement means the compromise and settlement of
the various Claims of Dragon to be effected in accordance with section 4.10
hereof.
1.112. Dragon Unsecured Claim means that certain General
Unsecured Claim of Dragon against Equityco and Equity GP arising out of
that certain loan made in the original principal amount of $50,000,000
under that certain Amended and Restated Mortgage and Security Agreement
dated as of October 15, 1991 between O&Y Concord 60 Broad Street Company
and Dragon.
1.113. Earn-back Amounts has the meaning assigned to such term in
section 15.3 hereof.
1.114. Effective Date means the date upon which each of the
conditions precedent specified in section 22.2 hereof shall have been
satisfied or waived in accordance with section 22.3 hereof.
1.115. Employee Withholding Requirement means any requirement
pursuant to applicable law that a percentage of the value of the Cash and
other property paid or distributed on account of a Compensation Claim be
withheld from such payment or distribution and paid to all appropriate
taxing authorities.
1.116. Entity has the meaning assigned to such term in section
101(15) of the Bankruptcy Code.
1.117. Equity Canada means O&Y Equity (Canada) Ltd., a New
Brunswick corporation and a Debtor in the Reorganization Cases.
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1.118. Equityco means O&Y Equity Company, L.P., a Delaware
limited partnership and a Debtor in the Reorganization Cases.
1.119. Equity GP means O&Y Equity General Partner Corp., a
Delaware corporation and a Debtor in the Reorganization Cases.
1.120. Equity Interest means any partner interest or other
instrument evidencing an ownership interest in a Debtor or in any Entity,
whether or not transferable, and any warrant or right (other than a right
to convert) to purchase, sell or subscribe for an interest or security in
any of the Debtors or in any Entity.
1.121. ERISA means Title IV of the Employee Retirement Income
Security Act of 1974, as amended.
1.122. Exercising Holder has the meaning assigned to such term in
section 7.11.1 hereof.
1.123. Exercising Tag-Along Holder has the meaning assigned to
such term in section 18.13 hereof.
1.124. Family Corps. means, collectively, A.R.F. Corp., R.R.F.
Corp., P.R.F. Corp. and R. Investment Corp.
1.125. FCA Inc. means Olympia & York FCA Inc., a Delaware
corporation and an O&Y Affiliate.
1.126. Federal Center Associates means Federal Center Associates,
a Washington, D.C. joint venture and an O&Y Affiliate.
1.127. Final Order means (a) an order of the Bankruptcy Court as
to which the time to appeal, petition for certiorari or move for reargument
or rehearing has expired and as to which no appeal, petition for certiorari
or other proceedings for reargument or rehearing shall then be pending, or
(b) if an appeal, writ of certiorari, reargument or rehearing thereof has
been filed or sought, such order of the Bankruptcy Court shall have been
affirmed by the highest court to which such order was appealed, or
certiorari shall have been denied or reargument or rehearing shall have
been denied or resulted in no modification of such order, and the time to
take any further appeal, petition for certiorari or move for reargument or
rehearing shall have expired; provided, however, that the possibility that
a motion under Rule 59 or Rule 60 of the Federal Rules
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of Civil Procedure, or any analogous rule under the Bankruptcy Rules or the
Local Rules, may be filed with respect to such order shall not cause such
order not to be a Final Order.
1.128. Full Payment Triggering Event has the meaning assigned to
such term in section 7.11.1 hereof.
1.129. General Partner Interest means the 1% general partner
interest in Newco LP to be issued to the Co- Proponents (indirectly through
Managing GP) in accordance with section 3 hereof, which shall have the same
rights in respect of distributions and allocations as the Class A Interests
but shall entitle Managing GP to all of the rights, and subject Managing GP
to all of the obligations, of a general partner under the Newco LP
Partnership Agreement and applicable law.
1.130. General Unsecured Claim means any Unsecured Claim against
any of the Debtors that is not a Consolidated Devco Convenience Claim,
Administrative Claim, Priority Tax Claim, Priority Non-Tax Claim, Insured
Claim or Intercompany Claim.
1.131. Gross Asset Value means, with reference to calculating
asset management fees in respect of any Core Property, the gross value of
such property determined annually by applying a 9% capitalization rate to
the net operating income for such Core Property for the prior four
quarters.
1.132. Independence Bay means those certain parcels totaling 167
acres of real property located in Broward County, Florida.
1.133. Independence Bay Contracts means (a) that certain
Agreement for Purchase and Sale, dated as of November 2, 1995, between York
Venture Co. and Centex Real Estate Corporation, as amended, (b) that
certain Agreement for Purchase and Sale, dated as of November 2, 1995,
between York Venture Co. and HG Management Joint Venture, as amended, and
(c) any other contracts of sale of all or a portion of Independence Bay
that may be executed and delivered by York Venture Co., with the consent of
Toronto Dominion, on or prior to the Effective Date.
1.134. Insured Claim means any Claim against any of the Debtors
arising out of or in connection with events allegedly causing personal
injury or property damage, which
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events are alleged to have occurred at any property owned by the Debtors or
the O&Y Affiliates and which Claims are covered by one or more of the
general liability insurance policies held by the Debtors or the O&Y
Affiliates.
1.135. Intercompany Claim means any Claim held by a Debtor, a
Wholly-Owned Affiliate or a Controlled Affiliate against a Debtor, a
Wholly-Owned Affiliate or a Controlled Affiliate.
1.136. IRC means the Internal Revenue Code of 1986, as amended.
1.137. January 12th Settlement Agreement means that certain
Settlement Agreement dated as of January 12, 1996 by and among certain of
the Debtors, Carena, BPHI, CIBC, Dragon, Citibank and Apollo, as amended
from time to time through the date of entry of the January 12th Settlement
Agreement Order and as it may be amended to address matters identified in
section V.C.6 and 7 of the Disclosure Statement, which have not been agreed
to by any Entities that may be party thereto.
1.138. January 12th Settlement Agreement Order means either (a)
an order of the Bankruptcy Court approving in all respects the January 12th
Settlement Agreement or (b) if the order described in clause (a) is not
entered by the commencement of the Confirmation Hearing, the Confirmation
Order; provided, however, that the approval of the transfer of the O&Y
Affiliates' ownership interests in 11601 Wilshire contemplated by the
January 12th Settlement Agreement may be the subject of an order entered on
the Confirmation Date other than the orders referred to in clauses (a) and
(b) hereof.
1.139. January 12th Settlement Motion means that certain motion
of Devco, Devco GP, Equityco, Equity GP, Equity Canada, Devco Canada,
Realty Corp., OYREUSA, Baden, SF Holdings and U.S. Finco dated January 12,
1996 requesting approval of the January 12th Settlement Agreement, as such
motion may be amended from time to time prior to the date of entry of the
January 12th Settlement Agreement Order.
1.140. JMB means JMB/245 Park Avenue Co. or any Affiliate
thereof.
1.141. JMB/245 Conditions means, with reference to section 15.8
hereof, the following conditions: (a) the interests of the Debtors in each
of OLP, 245 Park Avenue and
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Tower D shall have been transferred to Newco LP on the Effective Date and
(b) the Co-Proponents shall have provided the Co-Proponents' Capital
Infusion on or before the Effective Date.
1.142. JMB/245 Park Member Option means that certain option of
JMB described in section 15.8.1 hereof.
1.143. JMB/245 Park Payments has the meaning assigned to such
term in section 15.8.1 hereof.
1.144. JMB Restructuring Documents means those documents required
to implement the restructuring of JMB's partnership interest in 245 Park
Co.
1.145. Liabilities means any and all costs, expenses, actions,
causes of action, suits, controversies, damages, claims, liabilities or
demands of any nature, whether known or unknown, foreseen or unforeseen,
existing or hereinafter arising, liquidated or unliquidated, matured or not
matured, contingent or direct, whether arising at common law, in equity, or
under any statute, based in whole or in part upon any act or omission or
other occurrence taking place on or prior to the Effective Date.
1.146. Liberty Plaza Co. means O&Y Liberty Plaza Co., a New York
limited partnership and a Debtor in the Reorganization Cases.
1.147. LIBOR means the London Interbank Offered Rate.
1.148. Lien has the meaning assigned to such term in section
101(37) of the Bankruptcy Code (a lien that has been avoided in accordance
with sections 544, 545, 546, 547, 548 and 549 of the Bankruptcy Code shall
not constitute a Lien).
1.149. Liquidating Corp. means Liquidating Corp., a Delaware
corporation, to be formed in accordance with section 18.4 hereof.
1.150. Liquidating Corp. Shares means the shares of capital stock
of Liquidating Corp. to be issued to the Co-Proponents in accordance with
this Plan.
1.151. Liquidation Funding Advance means that certain credit
facility to be provided by Newco LP to
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Liquidating Corp. in accordance with section 18.4.4 hereof.
1.152. Local Rules means the local rules of the Bankruptcy Court.
1.153. Maiden Lane means that certain parcel of real property
located at 59 Maiden Lane, New York, New York, together with the office
building and other improvements existing thereon.
1.154. Managing GP means Newco GP Corp., a Delaware corporation,
the sole stockholders of which, on the Effective Date, will be the
Co-Proponents.
1.155. Maximum Allowable Amount means, with respect to any
Disputed Claim, the least of the amounts (a) set forth in the proof(s) of
claim filed by the holder thereof, (b) determined by order of the
Bankruptcy Court or any other court of competent jurisdiction as the
maximum fixed amount of such Claim or as the estimated amount for such
Claim for allowance, distribution and reserve purposes, (c) in the case of
a proof of claim filed in an unliquidated, undetermined or contingent
amount, as determined by order of the Bankruptcy Court or any other court
of competent jurisdiction, or (d) as agreed upon, in writing, by the
Debtors and the holder of a Disputed Claim.
1.156. MCJV means Miami Center Joint Venture, a Florida joint
venture, and an O&Y Affiliate.
1.157. MCJV Deadline has the meaning assigned to such term in
section 18.1.1 hereof.
1.158. MCJV Funding Commitment has the meaning assigned to such
term in section 4.9 hereof.
1.159. MCJV Lands means those certain four parcels of real estate
located east of Southeast 2nd Avenue, west of Biscayne Bay, north of the
Miami River, and south of Southeast 2nd Street in Miami, Florida.
1.160. MCJV Pledged Notes means those two promissory notes in the
respective original principal amounts of $38,678,648 and $600,000 made by
MCJV in favor of Baden, which notes were pledged by Baden to secure the
OYDL Swap Agreements.
1.161. MCJV Tax Payment has the meaning assigned to such term in
section 4.9 hereof.
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1.162. Merrill Lynch means Merrill Lynch & Co., Inc. and/or any
Affiliate thereof, but excluding Merrill Lynch, Pierce, Fenner & Smith
Incorporated, in its capacity as the New Lender (as defined in and as more
particularly described in the Tower B Co. Plan).
1.163. Merrill Lynch Capital Fund means that certain fund to be
held by Merrill Lynch in accordance with section 4.4(b) hereof.
1.164. Merrill Lynch Escrow means that certain escrow amount of
$2,500,000 in Cash, plus interest, if any, thereon, comprised of: (a)
$1,250,000, which was posted by Tower A Co. in July 1995 with the Supreme
Court of New York as a Court-ordered undertaking to secure Merrill Lynch
against losses during the pendency of an ex parte stay imposed upon Merrill
Lynch, and (b) $1,250,000, which was posted by Tower A Co. on October 6,
1995, pursuant to an agreement with Merrill Lynch.
1.165. Merrill Lynch Settlement means the compromise and
settlement of various Claims of Merrill Lynch to be effected in accordance
with section 4.4 hereof and the Tower B Co. Plan with the cooperation of
Merrill Lynch Tower D Partner.
1.166. Merrill Lynch/Tower B Leaseco Secured Claims means the
Claim of Merrill Lynch that is secured by the assignment of the rents under
the subleases of Tower B Leaseco.
1.167. Merrill Lynch Tower B Lease means that certain Lease
Agreement between Tower B Co. and Merrill Lynch WFC/L, Inc. dated September
29, 1988, as amended.
1.168. Merrill Lynch Tower B Lease Amendment means the amendment
of the Tower B Lease to be effected in accordance with the Merrill Lynch
Settlement, a form of which is annexed to the Plan as Exhibit F.
1.169. Merrill Lynch Tower D Lease means that certain Lease
Agreement between Tower D Co. and Merrill Lynch/WFC/L, Inc. dated February
26, 1988, as amended, and as assigned to Merrill Lynch, Pierce, Fenner &
Smith, Incorporated.
1.170. Merrill Lynch Tower D Lease Amendment means the amendment
of the Tower D Lease to be effected in
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accordance with the Merrill Lynch Settlement, a form of which is
annexed to the Plan as Exhibit G.
1.171. Merrill Lynch Tower D Partner means HQ North Company, Inc.
1.172. Net MCJV Proceeds has the meaning assigned to such term in
section 18.1.1 hereof.
1.173. Net SF Cash has the meaning assigned to such term in
section 18.1.1 hereof.
1.174. New Club Loan Disbursing Agent means the agent for
certain of the Co-Proponents as transferees of the Club Loan under the
January 12th Settlement Agreement, which agent will be designated by the
Co-Proponents on or before the Effective Date, and which will distribute to
each such Co-Proponent or its respective designee in accordance with the
Restructuring Transactions, such Co-Proponent's allocable share of the
Class A Interests to be distributed to certain of the Co-Proponents, as
transferees of the Club Loan under the January 12th Settlement Agreement,
in accordance with this Plan.
1.175. Newco LP means Newco Limited Partnership, a Delaware
limited partnership, to be formed in accordance with section 18.1.1 hereof.
1.176. Newco LP Partnership Agreement means the limited
partnership agreement of Newco LP, a form of which is annexed to the Plan
as Exhibit H.
1.177. Newco LP Reorganization Value means the net equity value
of Newco LP on the Effective Date (determined as of the Confirmation Date)
after taking into account all Effective Date indebtedness of Newco LP
(including the Convertible Note) and after giving effect to the
transactions to be effected pursuant to the Plan on the Effective Date
(including the Co-Proponents' Capital Infusion, but excluding any value
that may be attributable to the Disputed Realty Corp. Assets).
1.178. New Liberty Plaza LP means Liberty Plaza Co., as
reorganized as a Delaware limited partnership in accordance with section
18.5.1 hereof.
1.179. New OLP Corp. means New OLP Corporation, a Delaware
corporation, to be formed in accordance with section 18.5.1 hereof.
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1.180. New OLP Corp. Class A Stock means those shares of capital
stock of New OLP Corp. to be owned by Devco GP in accordance with section
18.5.3 hereof.
1.181. New OLP Corp. Class B Stock means those shares of capital
stock of New OLP Corp. to be owned by Devco GP and to be pledged to Sanwa
in accordance with section 18.5.3 hereof.
1.182. New Tower A Corp. means New Tower A Corporation, a
Delaware corporation, to be formed in accordance with section 18.7.1
hereof.
1.183. New Tower A Corp. Class A Stock means those shares of
capital stock of New Tower A Corp. to be owned by Devco GP in accordance
with section 18.7.3 hereof.
1.184. New Tower A Corp. Class B Stock means those shares of
capital stock of New Tower A Corp. to be owned by Devco GP and to be
pledged to Sanwa in accordance with section 18.7.3 hereof.
1.185. New Tower A LP means WFC Tower A Company, as reorganized
as a Delaware limited partnership in accordance with section 18.7.1 hereof.
1.186. New Tower D Holding I LP means Tower D Holding Company I,
as reorganized as a Delaware limited partnership in accordance with the
Restructuring Transactions.
1.187. New Tower D Holding II LP means Tower D Holding Company
II, as reorganized as a Delaware limited partnership in accordance with the
Restructuring Transactions.
1.188. New 245 Park LP means 245 Park Co., as reorganized
as a Delaware limited partnership in accordance with section 18.6 hereof.
1.189. Non-Core Properties means, collectively, those properties
and interests in property of the Debtors and the O&Y Affiliates that are
not Core Properties.
1.190. Old Bridge Lands means the real property owned by A.R.F.
Corp. and located in Old Bridge Township, New Jersey.
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1.191. OLP means that certain parcel of real property located at
One Liberty Plaza, New York, New York, together with the office building
and other improvements existing thereon.
1.192. OLP Co. means Olympia & York OLP Co., a New York general
partnership and a Debtor in the Reorganization Cases.
1.193. Olympia Centre means that certain parcel of real property
located at 737 North Michigan Avenue, Chicago, Illinois, together with the
office building and other improvements existing thereon.
1.194. OpCo Notes means those certain promissory notes made
pursuant to that certain Basic Agreement among O&Y (U.S.) Development Corp.
(the predecessor in interest to Devco), O&Y Alpha Corp., Oppenheimer
Capital Corp. and Tower A Associates dated as of August 15, 1985 in the
original aggregate principal amount of $68,131,313, as amended from time to
time, by Tower A Associates, and payable to U.S. Finco and OYREUSA, which
notes are secured by a pledge of the partner interests of Tower A
Associates and OYREUSA in TALP.
1.195. Oppenheimer means Oppenheimer & Company and/or any
Affiliate thereof.
1.196. Oppenheimer Settlement means the compromise and settlement
of various Claims of Oppenheimer and Oppenheimer's indirect Equity Interest
in Tower A Co. to be effected in accordance with section 4.11 hereof.
1.197. OYDL means Olympia & York Developments Limited, an Ontario
corporation.
1.198. OYDL Swap Agreements means, collectively, the Master
Interest Rate Conversion Agreement between OYDL and Bank of Nova Scotia,
made as of June 12, 1986; the confirmation, dated October 30, 1985,
relating to $75,000,000; the ISDA Interest Rate and Currency Exchange
Agreement dated as of October 10, 1989; the confirmation, dated June 7,
1990, relating to $100,000,000; the confirmation, dated July 30, 1990,
relating to $25,000,000; the side letter, dated September 4, 1990, between
the Bank of Nova Scotia and OYDL relating to cross-defaults; the
confirmation, dated November 19, 1990, relating to $25,000,000; the
confirmation, dated December 3, 1990,
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relating to $25,000,000; and the confirmation, dated January 17, 1991,
relating to $25,000,000.
1.199. OYREUSA means Olympia & York Real Estate (U.S.A.), Inc., a
Delaware corporation and a Debtor in the Reorganization Cases.
1.200. O&Y Affiliates means the Entities which are identified on
Schedule 1.200 hereto.
1.201. O&Y Finco means O&Y Financial Company, a New York general
partnership and a Debtor in the Reorganization Cases.
1.202. O&Y Releasees means, collectively, (a) the O&Y Affiliates,
(b) the respective successors, predecessors, assignors or assignees of any
of the foregoing, in their capacity as such, (c) all current or former
stockholders, partners or owners of any of the foregoing, in their capacity
as such, and (d) all current and former officers, directors, trustees,
employees, agents, attorneys, accountants, financial advisors, investment
bankers, appraisers, advisors and engineers of any of the foregoing, in
their capacity as such; provided, however, that O&Y Releasees shall not
include (i) any and all Reichmann Entities (provided that the Reichmann
Entities shall receive the releases described in section 4.7 hereof), (ii)
Coopers & Lybrand OYDL, Inc./Limited (provided that Coopers & Lybrand OYDL,
Inc./Limited shall be designated a Plan Releasee and receive the releases
described in section 24.3 of the Plan), (iii) U.S. Holdings, (iv) O&Y 25
Realty Company, and (v) O&Y 25 Realty Company, L.P.
1.203. O&Y (U.S.) means Devco, Devco GP, Equityco, Equity GP,
OYREUSA, Baden and any Entity wholly owned, directly or indirectly, by one
or more of such Entities and, as the context may require, such Entities'
successors and assigns.
1.204. O&Y (U.S.)/Reichmann Claims means any and all Claims held
by one or more of the Debtors, the Debtors in Possession and the O&Y
Affiliates against, directly or indirectly, the Reichmann Entities
(including, but not limited to, Claims against individuals included among
the Reichmann Entities) for (a) reimbursement of, contribution to,
indemnity against or subrogation in respect of payments by one or more of
the Debtors, the Debtors in Possession or the O&Y Affiliates of monies made
as advances to or in satisfaction of obligations of partnerships among DMML
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Limited, 608863 Ontario, Inc., or O&Y 25 Realty Company, L.P., on the one
hand, and one or more of the Debtors, the Debtors in Possession and the O&Y
Affiliates, on the other hand, (b) repayment of advances made to or on
behalf of individuals included among the Reichmann Entities or indemnity
against or subrogation in respect of payments made by one or more of the
Debtors, the Debtors in Possession and the O&Y Affiliates of monies on
account of obligations (including, without limitation, guarantees of
borrowings by third parties) of Reichmann Entities (including, without
limitation, individuals included among the Reichmann Entities), (c) damages
arising out of wrongful acts or omissions of individuals included among the
Reichmann Entities in their capacities as officers, directors or
controlling persons of one or more of the Debtors, the Debtors in
Possession and the O&Y Affiliates, (d) repayment of indebtedness for
borrowed money owed by one or more Reichmann Entities to one or more of the
Debtors, the Debtors in Possession and the O&Y Affiliates, (e) other
obligations of the Reichmann Entities to one or more of the Debtors, the
Debtors in Possession and the O&Y Affiliates, and (f) the O&Y
(U.S.)/Reichmann Partner Claims.
1.205. O&Y (U.S.)/Reichmann Partner Claims means any Claim of one
or more of the Debtors, the Debtors in Possession and the O&Y Affiliates
against one or more of the Reichmann Entities arising by reason of such
Reichmann Entities' status as a direct or indirect partner of O&Y 25 Realty
Company, O&Y 25 Realty Company, L.P. and U.S. Holdings; provided, however,
that O&Y (U.S.)/Reichmann Partner Claims shall not include any Claim held
by one or more of the Debtors, the Debtors in Possession or the O&Y
Affiliates against O&Y 25 Realty Company, O&Y 25 Realty Company, L.P. and
U.S. Holdings.
1.206. Park-Lex Co. means Park-Lexington Co., Inc.
1.207. Pennland GP Corp. means Pennland General Partner
Corporation, a Delaware corporation to be formed in accordance with the
Restructuring Transactions.
1.208. Pennland LP means Pennland, L.P., a Delaware limited
partnership to be formed in accordance with the Restructuring Transactions.
1.209. Pension Plan has the meaning assigned to such term in
section 21.1 hereof.
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1.210. Petition Date means, as to the Debtors, (a) with respect
to Realty Corp., SF Holdings, Devco Canada and Equity Canada, May 14, 1992;
(b) with respect to Devco GP, Equity GP, Devco, Equityco, OYREUSA, Baden,
U.S. Finco, Tower Corp., Tower A Co., 245 Corp., and 245 Holding LP,
October 11, 1995; (c) with respect to Tower B Leaseco, January 9, 1996; and
(d) with respect to OLP Co., Liberty Plaza Co., Trinity Place Co., O&Y
Finco and 245 Park Co., April 23, 1996.
1.211. Plan means this Second Amended Joint Plan of
Reorganization, including the exhibits hereto, as the same may be amended,
modified or supplemented from time to time in accordance with the terms
hereof.
1.212. Plan Releasees means, collectively, (a) the Co-Proponents,
the Creditors' Committee and the current and former members of the
Creditors' Committee in their capacity as such, determined as of the Ballot
Date, and Coopers & Lybrand OYDL, Inc./Limited, (b) the respective
successors, predecessors, Affiliates, assignors or assignees of any of
same, in their capacity as such, (c) all current or former stockholders,
members, partners, or owners of any of the foregoing (including current or
former owners of any direct or indirect interest in any of the foregoing),
in their capacity as such, and (d) all current and former officers,
directors, trustees, employees, agents, attorneys, accountants, financial
advisors, investment bankers, appraisers, advisors and engineers of any of
the foregoing, in their capacity as such.
1.213. Post-Effective Date Capital Infusion means any
post-Effective Date rights offering or equity issuance by or other capital
contribution (other than the Co- Proponents' Capital Infusion) into, and
any post-Effective Date debt financing issued by Newco LP or any Affiliate
in which Newco LP has a direct or indirect interest that increases (a) the
aggregate consolidated indebtedness of Newco LP or (b) the aggregate
consolidated indebtedness of Newco LP and its Affiliates in which Newco LP
owns a direct or indirect interest, in each case over the aggregate
consolidated indebtedness of such Entities on the Effective Date (after
giving effect to debt conversions, forgiveness and compromises effectuated
pursuant to this Plan), less any amortization payments or other principal
repayments made after the Effective Date; provided, however, that (a) any
distribution of Convertible Note Interests, and any conversion thereof, by
the holders of such interests pursuant to this Plan and (b) any conversion
of Class B
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Interests into Class A Interests, shall not constitute a Post-Effective
Date Capital Infusion.
1.214. Principal Component has the meaning assigned to such term
in section 15.3 hereof.
1.215. Priority Non-Tax Claim means any Claim of a kind specified
in section 507(a)(3), (4), (5), (6), (7) or (9) of the Bankruptcy Code.
1.216. Priority Tax Claim means any Claim of a kind specified in
section 507(a)(8) of the Bankruptcy Code.
1.217. Project Operating Agreement means that certain master
agreement originally executed by Battery Park City Authority, Olympia &
York Battery Park Company, American Express Company, Shearson/American
Express, Inc., American Express International Banking Corporation and
American Express Travel Related Services Company, Inc., dated June 15,
1983, as amended and modified, which master agreement is comprised of: (a)
the WFC Operator Component and (b) the WFC Tenants Component.
1.218. Ratable Proportion means, (a) with reference to any
distribution on account of any Allowed Claim in any class, the ratio
(expressed as a percentage) that the amount of such Allowed Claim bears to
the sum of all Allowed Claims and all Disputed Claims in such class for
which a reserve is required to be established pursuant to this Plan, and
(b) with reference to any distribution on account of any Allowed Equity
Interest in any class, the ratio (expressed as a percentage) that the
number of units of such Equity Interest bears to the sum of that number of
units of all Allowed Equity Interests and Disputed Equity Interests of the
same class.
1.219. Realty Corp. means Olympia & York Realty Corp., a New
Brunswick corporation and a Debtor in the Reorganization Cases.
1.220. Realty Corp. Cash-Out Claim means (a) an Allowed Unsecured
Claim against any of Realty Corp., OYREUSA and Baden equal to $50,000 or
less, (b) the Allowed Unsecured Claim against any of Realty Corp., OYREUSA
and Baden of a holder that has voted to accept the Plan and has irrevocably
elected on its Ballot to reduce its Claim to the amount of $50,000 or less,
and/or (c) a Disputed Unsecured Claim against any of Realty Corp., OYREUSA
and Baden which became an Allowed Unsecured Claim of $50,000 or less with
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the consent of and in the amount agreed to by Realty Corp., OYREUSA, Baden
and the Co-Proponents; provided, however, that the Unsecured Claim of a
holder of more than one Unsecured Claim against any of Realty Corp.,
OYREUSA and Baden may not be a Realty Corp. Cash-Out Claim unless the
holder has irrevocably elected on its Ballot to withdraw, consolidate,
amend and reduce all Unsecured Claims held by it against any of Realty
Corp., OYREUSA and Baden to one consolidated Unsecured Claim in the amount
of $50,000 or less.
1.221. Reichmann Bank Claims means, collectively, (a) the Svenska
Claims and (b) the Bank Leumi Claims.
1.222. Reichmann Claims means any and all Claims of any of the
Reichmann Entities against the Debtors, the Debtors in Possession and the
O&Y Affiliates, including but not limited to, (a) Claims against Equityco
which have been identified in the chapter 11 plan of 125 Broad Street Co.
in favor of DMML Limited and 608863 Ontario, Inc. and which arise from or
relate to the partnerships among DMML Limited, 608863 Ontario, Inc. and/or
O&Y 25 Realty Co., L.P. and one or more of the Debtors, the Debtors in
Possession and the O&Y Affiliates and (b) any Claims that could be asserted
by any of the Reichmann Entities on behalf of O&Y 25 Realty Company, O&Y 25
Realty Company, L.P., DMML Limited and/or 608863 Ontario, Inc. against one
or more of the Debtors, the Debtors in Possession and the O&Y Affiliates.
1.223. Reichmann Entities means, collectively, (a) the Reichmann
Group, (b) the Reichmann Trusts, (c) any one or more business entities,
including but not limited to corporations, partnerships and joint ventures,
a majority of the equity or voting control of which is owned legally or
beneficially by any one or more of the Reichmann Group or the Reichmann
Trusts, (d) MAT Investment, Inc., and (e) the Family Corps.; provided,
however, that the Reichmann Entities shall not include O&Y 25 Realty
Company, O&Y 25 Realty Company, L.P. and U.S. Holdings.
1.224. Reichmann Group means Albert Reichmann, Paul Reichmann,
Ralph Reichmann and their respective spouses, the descendants of any of
them or of the late Mr. and Mrs. Samuel Reichmann or a spouse of any such
descendant.
1.225. Reichmann Settlement means the compromise and settlement
of various Claims of the Reichmann Entities to be effected in accordance
with section 4.7 hereof.
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1.226. Reichmann Trusts means a trust or trusts, substantially
all of the beneficiaries of which consist of either (a) one or more of the
Reichmann Group or (b) one or more of the Reichmann Group and one or more
charitable foundations and organizations.
1.227. Rent Abatement Termination Date means the date that is the
earlier to occur of (1) February 28, 2002 and (2) the last day of the month
that is a certain number of months prior to February 2002, which certain
number of months is equal to (x), if the date upon which the Confirmation
Order becomes a Final Order is on or before February 28, 1997, the sum of
(i) two multiplied by the number of whole months during the period from
June 1996 through the month during which the Confirmation Order becomes a
Final Order, plus (ii), if the date upon which the Confirmation Order
becomes a Final Order occurs after the 15th day of a calendar month, one or
(y), if the date upon which the Confirmation Order becomes a Final Order is
after February 28, 1997, the sum of (i) two multiplied by the number of
whole months during the period from June 1996 through February 1997, plus
(ii) the number of whole months during the period from March 1997 through
the month during which the Confirmation Order becomes a Final Order plus
(iii), if the date upon which the Confirmation Order becomes a Final Order
occurs after the 15th day of a calendar month, one.
1.228. Reorganization Cases means the cases commenced under
chapter 11 of the Bankruptcy Code by the Debtors.
1.229. Residual Newco Equity has the meaning assigned to such
term in section 3 hereof.
1.230. Restructuring Transactions means the transactions
described in Schedule 18 hereto.
1.231. Retailco means Olympia & York WFC Retail Company, a New
York general partnership and an O&Y Affiliate.
1.232. Retailco B Lease means that certain Amended and Restated
Retail Lease B, dated as of September 29, 1988, between Tower B Co., as
landlord, and Retailco, as tenant, with respect to the retail space of
Tower B.
1.233. Retailco D Lease means that certain Amended and Restated
Retail Lease D, dated as of February
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26, 1988, between Tower D Co., as landlord, and Retailco, as tenant, with
respect to the retail space of Tower D.
1.234. Retiree means any individual who retired from employment
with a Debtor before the Petition Date and was and continues to be eligible
for medical, death or insurance benefits provided in a Retiree Benefit Plan
as required by section 1114 of the Bankruptcy Code.
1.235. Retiree Administrative Claim means an Administrative
Expense Claim of a Retiree under a Retiree Benefit Plan.
1.236. Retiree Benefit Plan means any plan or policy of a Debtor
in full force and effect as of the Petition Date under which medical, death
or insurance benefits are provided to Retirees, as any such plan or policy
may have been modified during the pendency of the Reorganization Cases.
1.237. River Water By-Pass Project means that certain project to
construct at the World Financial Center a redundant pipe to enable repair
and maintenance of the main river intake pipe serving the central plant
chilled water system without system shutdown, which project is the subject
of an agreement to be executed by and among Amex, Merrill Lynch/WFC/L,
Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Tower A Co.,
Tower B Co., Tower D Co. and Devco.
1.238. Sanwa means The Sanwa Bank Limited (New York Branch).
1.239. Sanwa/OLP Claims means any Claim under or relating to the
Sanwa/OLP Loan.
1.240. Sanwa/OLP Loan means that certain loan in the original
principal amount of $530,000,000, made pursuant to that certain Loan
Agreement dated as of July 19, 1989 by and among Devco GP, OLP Co., Liberty
Plaza Co. and Trinity Place Co., as amended, supplemented and consolidated
from time to time, which loan is secured by (a) two mortgages on and
assignment of rents relating to OLP and (b) guarantees by Devco, Devco GP
and O&Y 25 Realty Company, L.P., which guarantees are secured by each such
Entity's partner interests in 53 State Limited.
1.241. Sanwa/OLP Restructured Mortgage Loan means the Sanwa/OLP
Loan, as amended and modified pursuant to
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section 12.2 hereof and the Sanwa/OLP Restructured Mortgage Loan Documents.
1.242. Sanwa/OLP Restructured Mortgage Loan Documents means the
documents required to execute and deliver the Sanwa/OLP Restructured
Mortgage Loan, forms of which are annexed to the Plan as Exhibit I, which
documents shall incorporate the terms of the Sanwa/OLP Restructured
Mortgage Loan described in section 12.2 hereof and which shall contain such
other terms and conditions as shall be reasonably satisfactory to Sanwa,
the Debtors and the Co- Proponents.
1.243. Sanwa/Tower A Claims means any Claim under or relating to
the Sanwa/Tower A Loan, including any Claim under or relating to that
certain Assumption Agreement dated July 31, 1987 pursuant to which Devco
assumed $84,797,980 of the Sanwa/Tower A Loan.
1.244. Sanwa/Tower A Loan means that certain mortgage loan made
pursuant to those certain First Leasehold Mortgages and Assignments of
Leases and Rents dated January 25, 1989, as amended, which loan is secured
by, among other things, Tower A Co.'s leasehold interest in Tower A.
1.245. Sanwa/Tower A Restructured Mortgage Loan means the
Sanwa/Tower A Loan, as amended and modified pursuant to section 13.2 hereof
and the Sanwa/Tower A Restructured Mortgage Loan Documents.
1.246. Sanwa/Tower A Restructured Mortgage Loan Documents means
the documents required to execute and deliver the Sanwa/Tower A
Restructured Mortgage Loan, forms of which are annexed to the Plan as
Exhibit J, which documents shall incorporate the terms of the Sanwa/Tower A
Restructured Mortgage Loan described in section 13.2 hereof and which shall
contain such other terms and conditions as shall be reasonably satisfactory
to Sanwa, the Debtors and the Co-Proponents.
1.247. Schedules means the schedules of assets and liabilities
and the statements of financial affairs filed by the Debtors under section
521 of the Bankruptcy Code and the Official Bankruptcy Forms of the
Bankruptcy Rules, as such schedules and statements have been or may be
supplemented or amended from time to time.
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1.248. Secured Claim means a Claim secured by a Lien on
Collateral, as determined in accordance with section 506(a) of the
Bankruptcy Code.
1.249. Securities Act means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
1.250. Selling Holder has the meaning assigned to such term in
section 18.13 hereof.
1.251. SF Deadline has the meaning assigned to such term in
section 18.1.1 hereof.
1.252. SF Holdings means Olympia & York SF Holdings Corporation,
a New Brunswick corporation and a Debtor in the Reorganization Cases.
1.253. Shared Management Agreements means, collectively, (a) that
certain Management Agreement between O&Y (U.S.) Development Corporation and
Merrill Lynch/WFC/L, Inc. dated July 18, 1986, as amended and assigned, and
(b) that certain Management Agreement between Devco and Merrill
Lynch/WFC/L, Inc. dated July 22, 1987, as amended.
1.254. State Street Action means the action captioned Teachers
Insurance and Annuity Association of America v. Olympia & York State Street
Company, Olympia & York State Street Corp., Olympia & York Congress Street
Corp., et al., Index No. 84 Civ. 4611 (JES), pending in the United States
District Court for the Southern District of New York.
1.255. Sterling National means Sterling National Bank & Trust
Company of New York.
1.256. Sterling National Amended and Restated Reimbursement
Agreement means that certain reimbursement agreement, to be executed and
delivered by Sterling National and Newco LP on the Effective Date in
accordance with section 7.8 hereof.
1.257. Sterling National Letter of Credit Claims means any Claim
under or relating to two letters of credit issued by Sterling National in
favor of certain officers of Devco GP, the reimbursement obligations of
Devco GP relating to which are secured by Cash collateral deposits in the
amounts of $2,000,000 and $666,666, respectively.
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1.258. Subclass 7.11.1 Disputed Claims Debt/Equity Escrow means
the interest-bearing escrow account in which Class A Interests, the
Disputed Claims Convertible Note Interests and all dividends, interest
payments and other proceeds of the foregoing shall be held in accordance
with section 20.3.2 hereof.
1.259. Sumitomo Bank means The Sumitomo Bank, Limited, New York
Branch.
1.260. Sumitomo Bank/Tower D Pledge Loan means that certain
pledge loan made in the original principal amount of $74,750,000 under that
certain Amended and Restated Loan Agreement dated as of July 12, 1990 among
Sumitomo Bank, Devco, Devco GP and Tower D Holding II, which loan is
secured by the pledge of the partner interests in Tower D Co. of Devco,
Devco GP and Tower D Holding II and certain of their Affiliates.
1.261. Sumitomo Bank/Tower D Pledge Loan Claims means any Claim
under or relating to the Sumitomo Bank/Tower D Pledge Loan.
1.262. Svenska Claims means the Claims of Svenska Handelsbanken
arising in connection with the Judgment, the Holdings Loan Documents, the
Tower B Documents, the Tower B Guaranty and the Letter of Credit Guaranty
(each as defined in that certain Standstill Agreement among the Family
Corps., O&Y 25 Realty Company and O&Y 25 Realty Company, L.P. and Svenska
Handelsbanken, dated November 16, 1993).
1.263. Tag-Along Notice has the meaning assigned to such term in
section 18.13 hereof.
1.264. TALP means Tower A Limited Partnership, a Delaware limited
partnership, and an O&Y Affiliate.
1.265. Tax Advance means an advance to be made by Newco LP to a
Claims reserve established in accordance with section 20 hereof in the
event that such reserve does not have sufficient Cash to pay required
taxes, which Tax Advance shall be repaid to Newco LP in accordance with
section 20.3.4 hereof.
1.266. Tax Note means a note of a Debtor or a substantively
consolidated group of Debtors, or a successor in interest thereto, in the
full amount of an Allowed Priority Tax Claim payable over a period of six
years from
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the date of assessment, bearing interest at the applicable statutory
interest rate.
1.267. TIAA means Teachers Insurance and Annuity Association of
America and/or any Affiliate thereof.
1.268. TIAA Judgment Claims means any Claims under or relating to
the judgment entered on February 9, 1996 by Justice Cahn of the Supreme
Court of the State of New York, pursuant to which TIAA was found entitled
to a judgment in the amount of $41,160,779, plus prejudgment interest in
the amount of $38,536,638.38 and costs in the amount of $1,275.
1.269. TIAA Settlement means the compromise and settlement of
various Claims of TIAA to be effected in accordance with section 4.5
hereof.
1.270. Toronto Dominion means The Toronto Dominion Bank and/or
any Affiliate thereof.
1.271. Toronto Dominion Judgment Claims means any Claim under or
relating to (a) that certain judgment against Baden, as guarantor of the
obligations of York Venture Co. under the York Chase Ronto Loan, entered by
the United States District Court for the Southern District of New York on
October 28, 1993 in the amount of $11,900,153.34 (as reduced from time to
time in accordance with the Toronto Dominion 1994 Settlement Agreement, (b)
the York Chase Ronto Loan, (c) the Toronto Dominion 1994 Settlement
Agreement and (d) that certain Memorandum of Sale among Baden, Devco,
Equityco and O&Y Finco, dated as of October 11, 1995.
1.272. Toronto Dominion Letter of Credit means, collectively, (a)
that certain letter of credit, dated September 19, 1994, issued by Toronto
Dominion in favor of Broward County, Florida in the amount of $1,702,544.75
and (b) that certain letter of credit, dated August 31, 1988, issued by
Toronto Dominion in favor of Broward County, Florida in the amount of
$168,000.
1.273. Toronto Dominion Settlement means the compromise and
settlement of various Claims of Toronto Dominion to be effected in
accordance with section 4.6 hereof.
1.274. Toronto Dominion 1994 Settlement Agreement means that
certain Settlement Agreement by and among York
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Chase Ronto Co., Baden and Toronto Dominion, dated April 30, 1994.
1.275. Tower A means that certain parcel of real property located
at One World Financial Center, New York, New York, together with the office
building and other improvements existing thereon.
1.276. Tower A Action means the action entitled Teachers
Insurance and Annuity Association of America v. WFC Tower A Co. (f/k/a
Olympia & York Battery Park Company), O&Y Battery Park Corp. and O&Y (U.S.)
Development Company, L.P., Index No. 14617/86, brought in the Supreme Court
of the State on New York.
1.277. Tower A Co. means WFC Tower A Company, a New York general
partnership and a Debtor in the Reorganization Cases.
1.278. Tower A Partner Receivable has the meaning assigned to
such term in section 4.11 hereof.
1.279. Tower A Co. Partnership Agreement means the Restated and
Amended Partnership Agreement of Tower A Co. among O&Y (U.S.) Development
Corp., O&Y Alpha Corp. and Tower A Associates, dated August 15, 1985, as
amended.
1.280. Tower A Holding means O&Y Tower A Holding Company, a New
York general partnership, and an O&Y Affiliate.
1.281. Tower A Segregated Funds mean those funds which were held
in Citibank, N.A. Account No. 845302 and Canada Trust Account No. 381025.3
for the benefit of TIAA in connection with TIAA's lawsuit relating to the
alleged breach of a loan commitment regarding Tower A and which funds were
recovered by TIAA in accordance with that order of the Bankruptcy Court
dated April 3, 1996.
1.282. Tower B means that certain parcel of real property located
at Two World Financial Center, New York, New York, together with the office
building and other improvements existing thereon.
1.283. Tower B Co. means Olympia & York Tower B Company, a New
York general partnership, an O&Y Affiliate and a debtor in a case related
to the Reorganization Cases, which, on the Effective Date, shall be
dissolved and
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reconstituted in accordance with the Restructuring Transactions.
1.284. Tower B Co. Credit Agreement means that certain Credit
Agreement dated as of December 14, 1988 between Tower B Co. and U.S. Finco
together with that certain Assumption Agreement dated December 29, 1989
executed and delivered by BPHI relating to the same and that certain
Assumption Agreement dated December 29, 1989 between U.S. Finco and Devco
relating to the same.
1.285. Tower B Co. Plan means that certain First Amended Joint
Plan of Reorganization, dated July 27, 1996, filed by Tower B Co. and WFC
Fincorp in their reorganization cases, as the same may be amended from time
to time.
1.286. Tower B Financing Documents means the documents required
to effect a refinancing of Tower B in accordance with the Tower B Co. Plan,
forms of which are annexed to the Plan as Exhibit K.
1.287. Tower B Holding I means O&Y Tower B Holding Company I, a
New York general partnership, which, on the Effective Date, shall be
reconstituted in accordance with the Restructuring Transactions.
1.288. Tower B Leaseco means Olympia & York Tower B Lease
Company, a New York general partnership and a Debtor in the Reorganization
Cases.
1.289. Tower B Noteholders means the holders, as of July 29,
1996, of the Tower B Notes.
1.290. Tower B Noteholders' Claims means the "Noteholders'
Claims," as such term is defined in the Tower B Co. Plan.
1.291. Tower B Notes means those certain 7.75% Secured Notes due
March 25, 1998 in the aggregate face amount of $800,000,000 (payable in the
U.S. dollar equivalent of (Y)98,640,000,000) issued under that certain
Indenture, dated as of December 14, 1988, among WFC Fincorp, Devco and Bank
of New York, as successor trustee to NationsBank of Virginia, N.A., as
successor trustee to Manufacturers Hanover Trust Company.
1.292. Tower B Reimbursement Agreement means that certain
Reimbursement Agreement between Tower B Co. and Merrill Lynch/WFC/L, Inc.
dated August 24, 1984, as amended,
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a form of which, as amended by the Merrill Lynch Settlement, is annexed to
the Plan as Exhibit L.
1.293. Tower C means that certain parcel of real property located
at Three World Financial Center, New York, New York, together with the
office building and other improvements existing thereon.
1.294. Tower Corp. means O&Y WFC Tower Corp., a Delaware
Corporation and a Debtor in the Reorganization Cases.
1.295. Tower D means that certain parcel of real property located
at Four World Financial Center, New York, New York, together with the
office building and other improvements existing thereon.
1.296. Tower D Associates means O&Y Tower D Associates, L.P., a
Delaware limited partnership, and an O&Y Affiliate.
1.297. Tower D Co. means WFC Tower D Company, a New York general
partnership, and an O&Y Affiliate.
1.298. Tower D Co. Partnership Agreement means that certain
Restated and Amended Partnership Agreement of Tower D Co., dated as of
December 24, 1986, among O&Y (U.S.) Development Corp., Tower D Holding II
and O&Y Delta Corp. (renamed HQ North Company, Inc.), as amended.
1.299. Tower D Finance Corp. means Tower D Finance Corporation, a
Delaware corporation to be formed on the Effective Date.
1.300. Tower D Financing Documents means the documents required
to effect a refinancing of Tower D, forms of which are annexed to the Plan
as Exhibit M.
1.301. Tower D Financing Condition has the meaning assigned to
such term in section 22.2.2 hereof.
1.302. Tower D GP Corp. means O&Y Tower D GP Corp., a Delaware
corporation, and an O&Y Affiliate.
1.303. Tower D Holding I means O&Y Tower D Holding Company I, a
New York general partnership, and an O&Y Affiliate.
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1.304. Tower D Holding I Corp. means O&Y Tower D Holding I Corp.,
a Delaware corporation, to be formed in accordance with section 18.9
hereof.
1.305. Tower D Holding II means O&Y Tower D Holding Company II
L.P., a Delaware limited partnership, and an O&Y Affiliate.
1.306. Tower D Mortgage Debt means any current or future mortgage
debt secured by one or more mortgages encumbering Tower D, which mortgage
debt complies with the limitations of the Tower D Co. Partnership
Agreement, as it may be amended or modified, and as modified by section
4.4(d) hereof.
1.307. Tower D Reimbursement Agreement means that certain
Reimbursement Agreement between Tower D Co. and Merrill Lynch/WFC/L, Inc.,
dated August 24, 1984, as amended and assigned, a form of which, as amended
and assigned by the Merrill Lynch Settlement, is annexed to the Plan as
Exhibit N.
1.308. Trinity Place Co. means Trinity Place Company, a New York
general partnership and a Debtor in the Reorganization Cases.
1.309. Unaffiliated Unsecured Claims means those General
Unsecured Claims against any of the Consolidated Devco Entities other than
Co-Proponent Unsecured Claims.
1.310. Undisputed Realty Corp. Assets means the properties and
interests in property of Realty Corp., OYREUSA and Baden other than the
Disputed SF Cash and the Disputed MCJV Recovery.
1.311. Unsecured Claim means any Claim against a Debtor that is
not a Secured Claim or an Administrative Expense Claim.
1.312. U.S. Finco means O&Y (U.S.) Financial Company, a New York
general partnership and a Debtor in the Reorganization Cases.
1.313. U.S. Finco Mortgages means, collectively, (a) that certain
Amended and Restated Mortgage Two-A in the principal amount of $50,000,000
dated as of September 27, 1991 made by Liberty Plaza Co., Trinity Place Co.
and OLP Co. in favor of Sanwa, as assigned to U.S. Finco pursuant to that
certain Assignment of Mortgage dated as of Septem-
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ber 27, 1991 made by Sanwa; (b) that certain Amended and Restated Mortgage
Three in the principal amount of $50,000,000 dated as of October 22, 1990
made by Liberty Plaza Co., Trinity Place Co. and OLP Co. in favor of Sanwa,
as assigned to U.S. Finco pursuant to that certain Assignment of Mortgage
dated as of January 11, 1991 made by Sanwa; (c) that certain Second Amended
and Restated Mortgage Four in the principal amount of $5,000,000 dated as
of September 3, 1991 made by Liberty Plaza Co., Trinity Place Co. and OLP
Co. to U.S. Finco; and (d) that certain Amended and Restated Mortgage Five
in the principal amount of $100,000,000 dated as of March 21, 1991 made by
Liberty Plaza Co., Trinity Place Co. and OLP Co. in favor of Sanwa, as
assigned to U.S. Finco pursuant to that certain Assignment of Mortgage
dated as of March 21, 1991 made by Sanwa, which mortgages have been pledged
and collaterally assigned by U.S. Finco to secure the CIBC/OLP Loan.
1.314. U.S. Finco/OLP Claims means any Claim of U.S.
Finco under or relating to the U.S. Finco Mortgages.
1.315. U.S. Holdings means Olympia & York (U.S.) Holdings
Company, a New York general partnership.
1.316. U.S. Trustee means the United States Trustee appointed
under section 581, title 28, United States Code to serve in the Southern
District of New York.
1.317. WFC Fincorp means Olympia & York World Financial Center
Finance Corp., a Delaware corporation and a debtor in a case related to the
Reorganization Cases.
1.318. WFC Operator Component means that component of the Project
Operating Agreement that governs the obligations of the Operator (as
defined therein) of the World Financial Center.
1.319. WFC Retailco Holding Corp. means WFC Retailco Holding
Corp., a Delaware corporation to be formed in accordance with section 18.10
hereof.
1.320. WFC Retailco LP means WFC Retailco LP, a Delaware limited
partnership to be formed in accordance with section 18.10 hereof.
1.321. WFC Tenants Component means that component of the Project
perating Agreement that governs certain cost-sharing arrangements among the
parcel tenants of the World Financial Center. The WFC Operator Component
and the
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WFC Tenants Component, together, comprise the entire Project Operating
Agreement.
1.322. WFC Tower B Co. LP means WFC Tower B Company, L.P., a
Delaware limited partnership to be formed in accordance with section 18.8
hereof.
1.323. WFC Tower B GP Corp. means WFC Tower B GP Corporation, a
Delaware corporation to be formed in accordance with section 18.8 hereof.
1.324. WFC Tower B Holding Co. LP means WFC Tower B Holding LP, a
Delaware limited partnership to be formed in accordance with section 18.8
hereof.
1.325. WFC Tower D Co. LP means WFC Tower D Company, as
reorganized as a Delaware limited partnership in accordance with section
18.9 hereof.
1.326. WFC Tower D GP Corp. means WFC Tower D GP Corporation, a
Delaware corporation to be formed in accordance with section 18.9.1 hereof.
1.327. Wholly-Owned Affiliate means any O&Y Affiliate that is
wholly owned by one or more of Devco GP, Equity GP, Devco, Equityco, Realty
Corp., Baden, OYREUSA and U.S. Finco.
1.328. Willful Misconduct means, with respect to a director,
officer or employee, embezzlement or other criminal conduct by such
director, officer or employee or other conduct by such director, officer or
employee that was in bad faith and did not meet the standard of conduct
required of directors and executive officers holding office pursuant to the
Examiner's Governance Protocol for Realty Corp., Devco Canada, Equityco
Canada and SF Holdings approved by order of the Bankruptcy Court dated July
15, 1993 (regardless of whether the director, officer or employee was a
director or executive officer of any of Realty Corp., Devco Canada,
Equityco Canada or SF Holdings at such time).
1.329. Withholding Advances means amounts paid by Newco LP, on
behalf of a partner in Newco LP or an assignee of an Equity Interest in
Newco LP, in respect of any amount that Newco LP determines in its
reasonable judgment is required to be withheld under applicable law in
connection with the interest of such partner in Newco LP or its assignee,
which amounts have not been paid or otherwise
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satisfied (including by way of withholding, offset or deduction against the
interest of such partner or assignee) by such partner or assignee.
1.330. World Financial Center means, collectively, Tower A, Tower
B, Tower C and Tower D, together with any and all common areas appurtenant
thereto.
1.331. York Chase Ronto Loan means that certain loan in the
amount of $23,139,045 made to York Chase Ronto Co., as borrower, by Toronto
Dominion, as lender, in accordance with that certain Loan Agreement, dated
September 1, 1983, between Toronto Dominion and York Chase Ronto Co. and
Baden, as guarantor, which loan is secured by, among other things, a
mortgage on Independence Bay.
1.332. York Venture Co. means York Venture Co., a Florida joint
venture and a successor to York Chase Ronto Co.
1.333. 25 Realty Note means that certain note issued to OYDL by
O&Y 25 Realty Company pursuant to those certain Plans of Compromise and
Arrangement Pursuant to the Companies' Creditors Arrangement Act, dated
December 16, 1992, in the original principal amount of $124,404,850.72.
1.334. 53 Holding Company LP means 53 Holding Company, L.P., as
reorganized in accordance with the Restructuring Transactions.
1.335. 53 State Limited means Olympia & York State Limited
Partnership, a Massachusetts limited partnership and an O&Y Affiliate.
1.336. 53 State Street means that certain parcel of real property
located at 53 State Street, Boston, Massachusetts, together with the office
building and other improvements existing thereon.
1.337. 53 State Street Collateral means the Equity Interests of
Devco and Devco GP in 53 State Limited pledged to secure the Sanwa/OLP
Loan.
1.338. 53 State Street Segregated Funds mean those funds, which
are held in Citibank N.A. Account No. 845303 for the benefit of TIAA in
connection with TIAA's lawsuit relating to the alleged breach of a loan
commitment regarding 53 State Street.
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1.339. 237 LLC means 237 Park Avenue LLC, a New York limited
liability company, an O&Y Affiliate and a debtor in a case related to the
Reorganization Cases.
1.340. 245 Accounts has the meaning assigned to such
term in section 15.3 hereof.
1.341. 245 Cash Collateral Order has the meaning assigned to such
term in section 15.3 hereof.
1.342. 245 Corp. means O&Y 245 Corp., a Delaware corporation and
a Debtor in the Reorganization Cases.
1.343. 245 Corp. Class A Stock means those shares of capital
stock of 245 Corp. to be owned by Devco GP in accordance with section 18.6
hereof.
1.344. 245 Corp. Class B Stock means those shares of capital
stock of 245 Corp. to be owned by Devco GP and to be pledged to Aetna in
accordance with section 18.6 hereof.
1.345. 245 Holding LP means Olympia & York 245 Park Avenue
Holding Company, L.P., a Delaware limited partnership and a Debtor in the
Reorganization Cases.
1.346. 245 Leaseco means Olympia & York 245 Lease Company, a New
York general partnership, and an O&Y Affiliate.
1.347. 245 Park Avenue means that certain parcel of real property
located at 245 Park Avenue, New York, New York, together with the office
building and other improvements existing thereon.
1.348. 245 Park Co. means 245 Park Avenue Company, a New York
general partnership and a Debtor in the Reorganization Cases.
1.349. 245 Park Co. Partnership Claims means any Claim under or
relating to the obligations of Equityco under the First Amended and
Restated Agreement of General Partnership of 245 Park Co. dated December
29, 1983, which Claims are secured by a pledge of Equityco's partner
interest in 245 Park Co.
1.350. 245 Park Note has the meaning assigned to such term in
section 15.3 hereof.
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1.351. 245 Park Senior Lender means the holder of the 245 Park
Senior Loan.
1.352. 245 Park Senior Loan means the Aetna Restructured Mortgage
Loan or any loan replacing the Aetna Restructured Mortgage Loan.
1.353. 245 Reserve Account has the meaning assigned to such term
in section 15.3 hereof.
1.354. 400 South Hope Street means that certain parcel of real
property located at 400 South Hope Street, Los Angeles, California,
together with the office building and other improvements existing thereon.
1.355. 970 Plan means the plan of reorganization under chapter 11
of the Bankruptcy Code filed by 237 LLC and 1290 LLC on April 23, 1996 in
their reorganization cases, as the same may be amended from time to time.
1.356. 970 REIT means AmeriPark, Inc., a Maryland corporation,
which corporation intends to qualify as a real estate investment trust for
federal income tax purposes and which corporation will be organized
pursuant to the 970 Plan.
1.357. 1290 LLC means 1290 Associates, LLC, a New York
limited liability company, an O&Y Affiliate and a debtor in a case related
to the Reorganization Cases.
1.358. 11601 Wilshire means that certain parcel of real property
located at 11601 Wilshire Boulevard, Los Angeles, California, together with
the office building and other improvements existing thereon.
B. Interpretation; Application of
Definitions and Rules of Construction.
Unless otherwise specified, all section, schedule or exhibit
references in this Plan are to the respective section in, article of,
schedule or exhibit to this Plan, as the same may be amended, waived or
modified from time to time. The words "herein," "hereof," "hereto,"
"hereunder," and other words of similar import refer to this Plan as a
whole and not to any particular section, subsection, or clause contained in
this Plan. A term used herein that is not defined herein shall have the
meaning assigned to that term in the Bankruptcy Code. The rules of
construction contained in section 102 of the Bankruptcy Code apply to the
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construction of this Plan. The headings in this Plan are for convenience of
reference only and shall not limit or otherwise affect the provisions of
this Plan. Unless otherwise indicated herein, all references to dollars
means United States dollars.
SECTION 2. PROVISIONS FOR
SUBSTANTIVE CONSOLIDATION.
2.1. Substantive Consolidation of
Consolidated Devco Entities.
All assets and Liabilities of each of the Consolidated Devco
Entities shall be substantively consolidated. On the Effective Date (a)
each Intercompany Claim held by a Consolidated Devco Entity against a
Consolidated Devco Entity shall be eliminated in accordance with the
Restructuring Transactions or otherwise cancelled, (b) all assets and
Liabilities of each of the Consolidated Devco Entities (other than Devco)
shall be treated as though they were merged with the assets and Liabilities
of Devco, (c) each guarantee by a Consolidated Devco Entity of an
obligation of a Consolidated Devco Entity shall be eliminated so that any
Claim against a Consolidated Devco Entity and any guarantee thereof by a
Consolidated Devco Entity and any joint or several liability of two or more
of the Consolidated Devco Entities shall be deemed to be one obligation of
Devco, and (d) each Claim filed or to be filed in the Reorganization Cases
of the Consolidated Devco Entities shall be deemed filed against Devco and
shall be deemed one Claim against and obligation of Devco.
2.2. Substantive Consolidation of
Realty Corp., OYREUSA and Baden.
All assets and Liabilities of Realty Corp., OYREUSA and Baden
shall be substantively consolidated. On the Effective Date (a) each
Intercompany Claim held by Realty Corp., OYREUSA or Baden against Realty
Corp., OYREUSA or Baden shall be eliminated in accordance with the
Restructuring Transactions or otherwise cancelled, (b) all assets and
Liabilities of OYREUSA and Baden shall be treated as though they were
merged with the assets and Liabilities of Realty Corp., (c) each guarantee
by Realty Corp., OYREUSA, or Baden of an obligation of Realty Corp.,
OYREUSA or Baden shall be eliminated so that any Claim against Realty
Corp., OYREUSA or Baden and any guarantee thereof by Realty Corp., OYREUSA
or Baden and any joint or several
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liability of two or more of Realty Corp., OYREUSA or Baden shall be deemed
to be one obligation of Realty Corp. and (d) each Claim filed or to be
filed in the Reorganization Cases of Realty Corp., OYREUSA or Baden shall
be deemed filed against Realty Corp. and shall be deemed one Claim against
and obligation of Realty Corp.
2.3. Substantive Consolidation of Liberty
Plaza Co., OLP Co. and Trinity Place Co.
All assets and Liabilities of Liberty Plaza Co., OLP Co. and
Trinity Place Co. shall be substantively consolidated. On the Effective
Date (a) each Intercompany Claim by Liberty Plaza Co., OLP Co. or Trinity
Place Co. against Liberty Plaza Co., OLP Co. or Trinity Place Co. shall be
eliminated in accordance with the Restructuring Transactions or otherwise
cancelled, (b) all assets and Liabilities of OLP Co. and Trinity Place Co.
shall be treated as though they were merged with the assets and Liabilities
of Liberty Plaza Co., (c) each guarantee by Liberty Plaza Co., OLP Co. and
Trinity Place Co. of an obligation of Liberty Plaza Co., OLP Co. or Trinity
Place Co. shall be eliminated so that any Claim against any of Liberty
Plaza Co., OLP Co. or Trinity Place Co. and any guarantee thereof by
Liberty Plaza Co., OLP Co. and Trinity Place Co. and any joint or several
liability of two or more of Liberty Plaza Co., OLP Co. or Trinity Place Co.
shall be deemed to be one obligation of Liberty Plaza Co. and (d) each
Claim filed or to be filed in the Reorganization Cases of Liberty Plaza
Co., OLP Co. and Trinity Place Co. shall be deemed filed against Liberty
Plaza Co. and shall be deemed one Claim against and obligation of Liberty
Plaza Co.
2.4. Substantive Consolidation of
245 Park Co., 245 Holding LP and 245 Corp.
All assets and Liabilities of 245 Park Co., 245 Holding LP and
245 Corp. shall be substantively consolidated. On the Effective Date (a)
each Intercompany Claim held by 245 Park Co., 245 Holding LP or 245 Corp.
against 245 Park Co., 245 Holding LP or 245 Corp. shall be eliminated in
accordance with the Restructuring Transactions or otherwise cancelled, (b)
all assets and Liabilities of 245 Holding LP and 245 Corp. shall be treated
as though they were merged with the assets and Liabilities of 245 Park Co.,
(c) each guarantee by 245 Park Co., 245 Holding LP or 245 Corp. of an
obligation of 245 Park Co., 245 Holding LP or 245 Corp. shall be eliminated
so that any Claim against 245 Park Co., 245 Holding LP or 245 Corp. and any
guarantee
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thereof by 245 Park Co., 245 Holding LP or 245 Corp. and any joint or
several liability of two or more of 245 Park Co., 245 Holding LP or 245
Corp. shall be deemed to be one obligation of 245 Park Co., and (d) each
and every Claim filed or to be filed in the Reorganization Cases of 245
Park Co., 245 Holding LP or 245 Corp. shall be deemed filed against 245
Park Co. and shall be deemed one Claim against and obligation of 245 Park
Co.
SECTION 3. PROVISIONS RELATING TO
DISTRIBUTIONS TO THE CO-PROPONENTS.
On the Effective Date, each of the Co-Proponents shall receive
the treatment accorded each of their Allowed Claims and Allowed Equity
Interests, as set forth in sections 4.3, 7.2, 7.4, 8.2, 8.6, 12.3, 14.2,
15.2 and 15.5 hereof. In accordance with this Plan, after giving effect to
the distributions of Class A Interests and Class B Interests to (a) the
holders of Allowed Unaffiliated Unsecured Claims in accordance with section
7.11.1 hereof, (b) the holders of Allowed General Unsecured Claims against
any of Realty Corp., OYREUSA and/or Baden in accordance with section 8.6
hereof, and (c) JMB, on account of its Allowed Equity Interest in 245 Park
Co., in accordance with section 15.8 hereof, the Co-Proponents, on account
of their respective Allowed Claims and Allowed Equity Interests and in
accordance with this Plan and the Restructuring Transactions, shall be
distributed the General Partner Interest in Newco LP, the remaining Class A
Interests, Class B Interests in accordance with section 8.6 hereof, and
100% of the Liquidating Corp. Shares (the "Residual Newco Equity") in
partial consideration for the Co-Proponents' Capital Infusion and the
Allowed Co-Proponent Unsecured Claims. The General Partner Interests and a
1% Class B Interest will be held by the Co-Proponents through Managing GP,
a newly-formed corporation to be owned by the Co- Proponents. Other than in
respect of the Equity Interests in Newco LP held by the Co-Proponents
through Managing GP, the Co-Proponents will hold their remaining Equity
Interests in Newco LP either directly or indirectly, as each determines.
The Co-Proponents will enter into a stockholders' agreement with respect to
their ownership in, and the governance of, Managing GP.
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SECTION 4. PROVISIONS FOR THE SETTLEMENT OF CLAIMS.
4.1. Settlement of Intercompany Claims.
On the Effective Date, all Claims held by a Debtor, a
Wholly-Owned Affiliate or a Controlled Affiliate against a Debtor, a
Wholly-Owned Affiliateor a Controlled Affiliate shall be released and
cancelled in accordance with the Restructuring Transactions and, to the
extent not so released and cancelled, released and cancelled in
consideration for the mutual release and cancellation of any and all Claims
held by a Debtor, a Wholly-Owned Affiliate or a Controlled Affiliate
against such Debtor, Wholly-Owned Affiliate or such Controlled Affiliate;
provided, however, that this section 4.1 shall not release and eliminate
the Claims of Tower B Co. against WFC Fincorp, the Claims of Olympia & York
Maiden Lane Company to Olympia & York Maiden Lane Finance Corp., the U.S.
Finco/OLP Claims not contributed to OLP under the Restructuring
Transactions and the Claims of Tower A Co. against Tower A Holding and
Devco remaining outstanding under the Restructuring Transactions.
Notwithstanding the foregoing, all postpetition Claims held by a Debtor, a
Wholly-Owned Affiliate or a Controlled Affiliate against a Debtor, a
Wholly-Owned Affiliate or a Controlled Affiliate that arise by reason of
(a) the guarantee by a Debtor of the payment of postpetition professional
fees and expenses of another Debtor or the payment by the Debtor of
Administrative Expense Claims of another Debtor in accordance with the DIP
Order, (b) any Cash assets required to be advanced to Devco and deposited
in accordance with the DIP Loan and the DIP Order, including the proceeds
of any postpetition asset sale occurring prior to the Effective Date
required to be repaid under the DIP Loan and DIP Order, (c) the Services
Agreements approved by the Bankruptcy Court by order dated October 11,
1995, (d) the Restructuring Transactions, (e) the Order of the Court
pursuant to section 105 of the Bankruptcy Code Authorizing Consolidation of
O&Y Finco Cash, dated July 26, 1996, and (f) the terms of the January 12th
Settlement Agreement, shall not be released and cancelled. To the extent
the postpetition Claims described in clauses (a), (b), (c), (e) and (f) of
this section 4.1 are Claims against one or more the Debtors, such Claims
shall be treated as Administrative Expense Claims under this Plan.
4.2. The January 12th Settlement Agreement.
In the event the January 12th Settlement Agreement has not been
approved in all respects by a Final Order on or
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before the commencement of the Confirmation Hearing, the January 12th
Settlement Motion is incorporated herein and made a part hereof, and this
Plan shall constitute a motion of the Debtors requesting: (a) all of the
relief requested in the January 12th Settlement Motion; (b) approval of the
transfer of Claims, properties, interests in property and assets under the
January 12th Settlement Agreement prior to the Effective Date; and (c)
approval of the protections afforded to the Claims, properties, interests
in property and assets to be transferred under the January 12th Settlement
Agreement as of the date of transfer irrespective of whether the Effective
Date occurs.
4.3. BPHI Settlement.
On the Effective Date and in accordance with the terms of this
Plan, the Tower B Co. Plan and the Restructuring Transactions, the BPHI
Settlement shall be effective. In accordance with the BPHI Settlement, any
and all Claims of BPHI against the Debtors and Tower B Co. will be resolved
and compromised and BPHI will exchange its Claims against the Debtors and
Tower B Co. and Equity Interests in and Claims against the BPHI
Partnerships as follows, in accordance with the terms of section 7.11.2
hereof governing distributions to the holders of Allowed Co- Proponent
Unsecured Claims, and in the case of such Equity Interests, in accordance
with the terms of this section 4.3 as well as the Tower B Co. Plan.
(a) On the Effective Date, BPHI or its designee, in accordance
with the Restructuring Transactions, shall be distributed on account of (i)
its Equity Interests in the BPHI Partnerships, (ii) the Claims of BPHI
against Tower B Co. and the BPHI Partnerships, and (iii) the Claims of BPHI
against Devco (to the extent of and in its capacity as a partner in the
BPHI Partnerships) and certain other Debtors, Class A Interests
representing 30.06% of the ownership of Newco LP (before taking into
account the Co-Proponents' Capital Infusion).
(b) On the Effective Date, BPHI, in accordance with the
Restructuring Transactions, shall fund 48.75% of the Co-Proponents' Capital
Infusion to be effected in accordance with section 18.12 hereof.
(c) In addition to the consideration to be provided in accordance
with paragraph (a) of this section 4.3, on the Effective Date, BPHI shall
have an Allowed General Unsecured Claim against Devco in the amount of
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$22,250,000, which Allowed Claim shall receive the same treatment accorded
to holders of Allowed Co-Proponent Unsecured Claims against the
Consolidated Devco Entities in accordance with section 7.11.2 hereof and
BPHI shall have an unsecured Claim against Tower B Co., which shall receive
the treatment provided in the Tower B Co. Plan.
(d) On the Effective Date of the Plan and the effective date of
the Tower B Co. Plan, in addition to the releases provided in accordance
with section 24 hereof and in the Tower B Co. Plan, Tower B Co. and the O&Y
Affiliates and the Controlled Affiliates, on the one hand, and BPHI, on the
other hand, will execute and deliver mutual releases of all Liabilities and
Causes of Action relating to all acts and omissions occurring prior to the
Effective Date with respect to the Debtors, the Plan, the Reorganization
Cases, Tower B Co., the Tower B Co. reorganization case and the Tower B Co.
Plan.
Without limiting the generality of the foregoing, (a) Tower B Co. and U.S.
Finco shall release BPHI from any and all Liabilities it may have or may be
alleged to have under the Tower B Co. Credit Agreement and (b) Tower B Co.
and BPHI shall release any and all Claims they may have against or may be
alleged to have against U.S. Finco with respect to any and all amounts
which may be owed or alleged to be owed by U.S. Finco to Tower B Co. under
the Tower B Co. Credit Agreement. In addition, under this section 4.3 and
in accordance with section 24 hereof, BPHI shall be released, in connection
with this Plan and the Tower B Co. Plan, from any (a) Liabilities relating
to the making of any loans or equity investments in any of the Debtors, the
Debtors in Possession or the O&Y Affiliates, (b) obligations or Claims
under any statutory or decisional law or principle which could require
return, disgorgement, restitution or repayment of any kind of payment of
any damages with respect to amounts received by BPHI prior to the Effective
Date in respect of any investment (including equity, debt or loan
participation interests), (c) Claim relating to the character (as debt or
equity) or the enforceability in accordance with its terms of any
instrument evidencing any investment made by BPHI in any of the Debtors,
the Debtors in Possession or the O&Y Affiliates, (d) Claim with respect to
an avoidable transfer, and (e) Liabilities with respect to any Claim of any
Entity against any Debtor, Debtor in Possession or any O&Y Affiliate. On
the Effective Date, Newco LP will indemnify Tower B Co. and Tower B Holding
I, Entities through which BPHI will own certain of their Equity Interests
in Newco LP, for any and all Liabilities arising prior to the Effective
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Date not released and discharged under this Plan and the Tower B Co. Plan.
4.4. Merrill Lynch Settlement.
On the Effective Date, and in accordance with the Tower B Co.
Plan and the Restructuring Transactions relating to Merrill Lynch, the
Merrill Lynch Settlement shall be effective. Under the Merrill Lynch
Settlement, the following claims of Merrill Lynch will be resolved and
compromised, in full and final settlement and disposition of all proofs of
claim filed by Merrill Lynch in the Reorganization Cases of the Debtors and
the reorganization cases of Tower B Co. and WFC Fincorp:
(a) Merrill Lynch, through its designees on the Management
Committee (as defined in the Project Operating Agreement) and as the
beneficiaries of certain rights granted to them under section 27.02 of the
Merrill Lynch Tower B Lease and section 27.02 of the Merrill Lynch Tower D
Lease, shall consent to the assumption by Devco and Tower A Co. pursuant to
section 365 of the Bankruptcy Code of the WFC Operator Component and the
assignment of such WFC Operator Component to Newco LP in accordance with
section 21 hereof. The O&Y Affiliates will confirm that the WFC Tenants
Component of the Project Operating Agreement is a covenant that runs with
the land and binds the parcel tenants of the World Financial Center and
burdens their tenancies for both prepetition and postpetition obligations.
To the extent that any portion or component of the Project Operating
Agreement is an executory contract, Devco and Tower A Co. shall assume such
portion or component and assign such portion or component of the Project
Operating Agreement to Newco LP. Merrill Lynch, through its designees on
the Management Committee under the Project Operating Agreement, shall
consent to such assumption and assignment. In accordance with section
365(b) of the Bankruptcy Code, Merrill Lynch/WFC/L, Inc. or its designee
shall be entitled to the release of the funds held in the Merrill Lynch
Escrow and the O&Y Affiliates shall release any and all claims for the
return of the funds held in the Merrill Lynch Escrow. The O&Y Affiliates
will not seek or pursue any claims for legal fees, the miswired electrical
meter and the cost of time or money for personnel or other resources
incurred in connection with the arbitration matters relating to the Tower D
electricity charges. There will be no further action taken in connection
with such arbitration of the claims which are described therein or herein
as against Merrill Lynch/WFC/L, Inc., and the O&Y Affiliates will
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assume responsibility for any third-party claims arising by reason of any
action that the O&Y Affiliates may take to collect or pursue such claims
from third parties.
(b) Merrill Lynch/WFC/L, Inc. shall consent to the provisions of
this Plan relating to Tower B Leaseco as set forth in this section 4.4 and
section 16 hereof and to the provisions of the Tower B Co. Plan relating to
Merrill Lynch/WFC/L, Inc. as set forth therein. Merrill Lynch/WFC/L, Inc.
shall consent to all Available Cash of Tower B Leaseco being used: (i) to
pay in full Administrative Expense Claims, Allowed Priority Tax Claims and
Allowed Priority-Non Tax Claims against Tower B Leaseco; (ii) thereafter,
as a distribution on account of the Merrill Lynch/Tower B Leaseco Secured
Claim equalto $502,000 to the Merrill Lynch Capital Fund to be held by
Merrill Lynch and to be used to fund the River Water By-Pass Project and
certain window and facade repairs required to be made to Tower B; and (iii)
thereafter, to pay each holder of an Allowed General Unsecured Claim
against Tower B Leaseco such holder's Ratable Proportion of the Available
Cash of Tower B Leaseco, after giving effect to clauses (i) and (ii) of
this section 4.4(b). Merrill Lynch will assert no other claims against
Tower B Leaseco in relation to the River Water ByPass Project or against
Tower B Co. for the Tower B window and facade repairs currently under
discussion as of the date hereof.
(c) Merrill Lynch/WFC/L, Inc. shall have an Allowed General
Unsecured Claim against Tower B Leaseco of $93,000,000 and, to the extent
such Allowed General Unsecured Claim against Tower B Leaseco shall not
receive a payment in full in accordance with section 16.4 hereof, Merrill
Lynch/WFC/L, Inc. shall have an Allowed Unaffiliated Unsecured Claim
against Devco arising from Devco's guarantee of the obligations of Tower B
Leaseco, which Allowed Claim shall be in an amount equal to the difference
between $93,000,000 and the amount of any distributions received by Merrill
Lynch/WFC/L, Inc. on account of its Allowed General Unsecured Claim against
Tower B Leaseco and shall be provided a distribution thereon in accordance
with section 7.11.1 hereof.
(d) Merrill Lynch shall consent, pursuant to an instrument in
form and substance satisfactory to the Debtors, the O&Y Affiliates, the
Co-Proponents and Merrill Lynch, which instrument is to be filed with the
Bankruptcy Court prior to the Confirmation Hearing, to the modification and
amendment of the Tower D Co. Partnership Agreement,
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which modification and amendment will provide for the elimination of the
debt service and principal limitations applicable to a refinancing of
mortgage debt relating to Tower D as set forth in section 16 of such
partnership agreement; provided, however, that any refinancing of mortgage
debt relating to Tower D shall:
(i) permit annual partnership distributions of $11,379,000
to Merrill Lynch Tower D Partner; and
(ii) self-liquidate over the initial term of the Merrill
Lynch Tower D Lease, which initial term is currently
scheduled to expire on September 29, 2013.
Merrill Lynch will cooperate in effectuating such a financing on terms
which are mutually acceptable (as determined in each party's sole
discretion), provided that such modifications will result in no cost to
Merrill Lynch. Such financing is a condition precedent to the Effective
Date and is expected to take the form of securitized rated debt.
(e) Merrill Lynch shall consent, pursuant to an instrument in
form and substance satisfactory to the Debtors, the O&Y Affiliates, the
Co-Proponents and Merrill Lynch, which instrument is to be filed with the
Bankruptcy Court prior to the Confirmation Hearing, to the modification and
amendment of the Tower B Reimbursement Agreement and the Tower D
Reimbursement Agreement, which modifications and amendments shall provide
that:
(i) the limitation of the recourse provisions of the
Tower B Reimbursement Agreement and the Tower D
Reimbursement Agreement such that the obligations
under such agreements will only be recourse to
Tower B Co. and Tower D Co., respectively;
(ii) the provisions of the Tower D Reimbursement Agreement
will be guaranteed by Newco LP; provided, however,
that such guarantee shall not cover matters for which
Merrill Lynch Tower D Partner is obligated under the
Tower D Co. Partnership Agreement;
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(iii) the make-whole provisions relating to Floors 26, 27
and 28 of Tower B in the Tower B Reimbursement
Agreement will be deleted; and
(iv) in connection with the Tower B refinancing contemplated
by section 7.1 of the Tower B Co. Plan or any other
refinancing of Tower B, Merrill Lynch/WFC/L, Inc. will
cooperate with respect to modifications of the Tower B
Reimbursement Agreement, including the agreement by
Merrill Lynch not to pursue collection of amounts due
or interest accruing thereon (such interest at the
annual rate of prime plus 3% compounded monthly,
payable from the due date) under the Tower B
Reimbursement Agreement and the agreement by Merrill
Lynch to subordinate and forbear its rights to pursue
collection of such amounts due or interest accruing
thereon through at least September 29, 2013; provided,
however, with respect to any Refinancing of the Funding
Commitment Letter Loan (as defined in the Tower B Co.
Plan) or the ML Lease Securitization (as defined in the
Tower B Co. Plan) during the initial term of the
Merrill Lynch Tower B Lease, if such refinancing
provides for funds (after repaying any existing
mortgage(s) and all expenses of refinancing) which are
not to be used for Tower B building expenditures,
including costs of leasing, then all accrued and unpaid
amounts under the Tower B Reimbursement Agreement must
be paid and WFC Tower B Co. LP must provide such
reserves or other assurances satisfactory to Merrill
Lynch that all amounts which thereafter may be payable
under the Tower B Reimbursement Agreement will be paid;
and provided, further, that any such forbearance will
not in any way prejudice or impair in any way the
validity or enforceability of Merrill Lynch's claim
under the Tower B Reimbursement Agreement.
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(v) Retailco shall be primarily responsible to Merrill
Lynch for the payment of all expenses of the retail
spaces of Tower B and Tower D as such expenses are
contemplated by the Tower B reimbursement Agreement and
the Tower D Reimbursement Agreement, and recourse to
Retailco shall include access to Retailco's excess cash
flow from its retail lease at Tower D; and
(vi) section 9.01(e) of each of the Merrill Lynch Tower B
Lease and the Merrill Lynch Tower D Lease shall be
amended to provide in each case that the maximum loan
condemnation amount shall be based on a schedule to be
inserted which will match the amortization schedule of
the financing to be placed on each of the leasehold
interests in Tower B or Tower D, respectively, on or
about the Effective Date (as defined in the Tower B Co.
Plan) of the Tower B Co. Plan, with respect to Tower B,
and the Effective Date of this Plan with respect to
Tower D, subject to adjustment in the case of Tower B
for the ML Lease Securitization (as defined in the
Tower B Co. Plan).
(f) In exchange for the consideration provided by Merrill Lynch
in paragraphs (d) and (e) of this section 4.4 and in the Tower B Co. Plan,
Merrill Lynch will elect on the Ballot to be distributed with respect to
this Plan and the Tower B Co. Plan:
(i) a payment in Cash to Merrill Lynch/WFC/L, Inc. equal to
$26,400,000, payable on the Effective Date, plus
interest at the rate of 9% per annum for the period
commencing on July 1, 1996 and ending on the Effective
Date, or
(ii) a rent reduction on the Merrill Lynch Tower D Lease
equivalent to the Cash payment determined in clause (i)
of the immediately preceding paragraph, which will be
recovered over a period of at least five (5) years
following the
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Effective Date using an annual discount rate
(payable monthly in advance) of 6.73%.
(g) With respect to the Tower D Reimbursement Agreement:
(i) there shall be a first-priority nonrecourse pledge to
Merrill Lynch of the equity in Tower D Co. owned,
subject tothe terms of section 7.4 hereof, directly or
indirectly, by the O&Y Affiliates, BPHI and/or Newco
LP, as the successor to the O&Y Affiliates, to secure
the obligations of Tower D Co. under the Tower D
Reimbursement Agreement;
(ii) any claim arising under the Tower D Reimbursement
Agreement shall be subordinate only to the Tower D
Mortgage Debt and no remedies will be exercisable
against Tower D Co. until the Tower D Mortgage Debt is
satisfied; and
(iii) until the Tower D Mortgage Debt is satisfied, Merrill
Lynch will agree not to pursue collection of such
amounts due or interest accruing thereon from any of
the Entities owning Tower D under the Tower D
Reimbursement Agreement; provided, however, that such
forbearance will not in any way prejudice or impair
the right of Merrill Lynch to pursue Newco LP, as
guarantor, or impair in any way the validity
or enforceability of Merrill Lynch's claim under the
Tower D Reimbursement Agreement. Interest (at the
annual rate of prime plus 3% compounded monthly) on
such claim shall be payable from the due date.
(h) The Shared Management Agreement for Tower D shall be modified
to delete (effective as of July 1, 1996) 100% of the management fee
(currently $227,000 annually). Merrill Lynch shall be provided an initial
credit of $33,000, increasing by 3% annually, for a total initial credit of
$260,000, against the operating and other costs payable by Merrill Lynch
under such agreement, and, as
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modified, assumed and assigned to Newco LP. The present value of the
amounts described in this paragraph shall be increased at a rate of 9% per
annum from July 1, 1996 through the Effective Date.
(i) With respect to any and all other agreements relating to the
World Financial Center, Merrill Lynch shall agree to accept Newco LP or its
designee as the successor to any O&Y Affiliate under such agreements. The
following agreements, as amended and assigned, will be assumed and assigned
by the Debtors to Newco LP under section 365 of the Bankruptcy Code:
(i) The Shared Management Agreement relating to Tower B;
(ii) The Shared Management Agreement relating to Tower D;
(iii) The Sublease dated September 29, 1988 between Devco
and Merrill Lynch/WFC/L, Inc. for the Winter Garden
and the Liberty Street Bridge and certain other
portions of Tower B;
(iv) The Sublease dated February 26, 1988 between Devco and
Merrill Lynch/WFC/L, Inc. for the central plant and
certain other portions of Tower D;
(v) The Fire Safety Agreement dated February 26, 1988
between Merrill Lynch/WFC/L, Inc., Retailco and Devco;
and
(vi) The Fire Safety Agreement dated September 29, 1988
between Merrill Lynch/WFC/L, Inc., Retailco and Devco.
(j) Merrill Lynch shall incur no additional costs or risks or
adverse impact with respect to the value of Tower D Co. as a result of any
modifications to the leases and agreements to which Retailco is a party.
(k) Merrill Lynch's obligation to proceed with the
transactions contemplated under the Merrill Lynch Settlement is conditioned
upon it being satisfied as to the assumption or rejection, as the case may
be, of any agreements of the Debtors, Tower B Co. or WFC Fincorp to which
Merrill Lynch is a party; and, that such transactions
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will not result in: (i) the termination of the Tower D Co. partnership for
federal income tax purposes or (ii) the imposition of any other tax cost on
Merrill Lynch (except as paid by the O&Y Affiliates).
(l) Merrill Lynch agrees that it has no objection to the release
by Tower B Co. and Tower A Co. of any receivables or payables owed to them
by their partners or their Affiliates.
(m) In exchange for the entirety of the consideration provided to
Merrill Lynch in this section 4.4 and in the Tower B Co. Plan, Merrill
Lynch will support and vote to accept this Plan as well as the Tower B Co.
Plan (provided that Merrill Lynch's treatment under such plan is consistent
with the terms hereof and does not otherwise create additional cost to or
adversely impact Merrill Lynch). Those portions of the foregoing
specifically relating to Tower B Co. shall be effectuated under the Tower B
Co. Plan. Merrill Lynch shall agree to the designation of Newco LP or any
Affiliate thereof (or such other Entity as applicable) as the successor to
any O&Y Affiliates at the World Financial Center. The O&Y Affiliates will
continue to address all other operating issues between the O&Y Affiliates
and Merrill Lynch to maximize the mutual benefits to the O&Y Affiliates and
Merrill Lynch. The settlement of the matters set forth herein is subject to
the documentation of same prior to the Confirmation Date mutually
acceptable to the parties thereto.
4.5. TIAA Settlement.
On the Effective Date, the Claims of TIAA shall be accorded the
treatment in this section 4.5 in full satisfaction of (i) the TIAA Judgment
Claims, (ii) all Claims of TIAA against Tower A Co., 53 State Limited,
Devco, and all of the O&Y Affiliates, including, without limitation, any
Claims asserted in or otherwise arising out of the Tower A Action or the
State Street Action, and (iii) all Claims of TIAA against BPHI and Carena
asserted in or otherwise arising out of the Tower A Action or the State
Street Action or arising in connection with or relating to BPHI's
investment in the World Financial Center.
Cash Payments on the
Effective Date: $6,500,000 Cash payment on the
Effective Date.
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Deferred Cash Payments: $3,000,000, payable by a note
issued by New Tower A LP to
TIAA providing for aggregate
payments of $1,000,000 per
year for the first three years
following the Effective Date.
In each of such first three
years following the Effective
Date, the obligations under
such note shall be paid
quarterly in arrears in four
equal installments of $250,000
from the asset management fees
payable to Newco LP as
provided in "Management Fees"
in section 13.2 hereof. Newco
LP will guarantee the
obligations of New Tower A LP
to TIAA and shall waive its
rights of subrogation relating
to the same. Newco LP will
collaterally assign to TIAA
the asset management fees
payable to Newco LP as
provided in "Management Fees"
in section 13.2 hereof to
secure the obligations under
the note to TIAA. New Tower A
LP will not make any
distributions to Newco LP or
any of its Affiliates other
than the fees payable to Newco
LP as provided in "Management
Fees" in section 13.2 hereof
and all such fees shall be
subordinate to the obligations
under the note issued to TIAA
and payment may not be made
upon an event of default under
such note.
TIAA Unaffiliated Unsecured
Claim Against Devco: TIAA shall have an Allowed
Unaffiliated Unsecured Claim
against Devco of $75,000,000,
on account of which TIAA shall
be distributed Class A
Interests having a value equal
to $1,714,286 and Convertible
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Note Interests having a
face amount equal to
$4,285,714.
Release of
Segregated Funds: The 53 State Street Segregated
Funds shall be released to
TIAA, and the Debtors and the
O&Y Affiliates shall release
all Claims that they have or
may have relating to the 53
State Street Segregated Funds
and the Tower A Segregated
Funds.
Release of Lis Pendens: TIAA shall release any and all
lis pendens relating to 53
State Street.
Mutual Releases: In addition to the releases
provided in section 24 hereof,
TIAA, BPHI, Carena and the O&Y
Affiliates (or their
respective successors) will
execute and deliver mutual
releases consistent with this
section 4.5.
4.6. Toronto Dominion Settlement.
On the Effective Date, in full satisfaction of the Toronto
Dominion Judgment Claims and all other Claims that Toronto Dominion may
have against any of Baden, York Venture Co. or all other O&Y Affiliates
(including any Claims under or related to the Toronto Dominion Letter of
Credit), Toronto Dominion or its designee shall be distributed (a) the
Chase Note and any proceeds of the Chase Note received by the O&Y
Affiliates after August 9, 1996 and prior to the Effective Date and (b) a
deed to the unsold property currently owned by York Venture Co. located at
Independence Bay; provided, however, that the transfer of such unsold
property shall remain subject to the rights and obligations set forth in
the Independence Bay Contracts. To the extent that such property, or any
portion thereof, is sold prior to the Effective Date pursuant to the
Independence Bay Contracts, the proceeds thereof (net of the costs of sale)
shall be delivered to Toronto Dominion upon the consummation of such sale.
In the event that such transactions are not consummated prior to the
Effective Date, Toronto Dominion shall assume and perform any and all
obligations under the
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Independence Bay Contracts from and after the Effective Date, and shall
indemnify and hold harmless York Venture Co., the Debtors, the Debtors in
Possession, any and all other O&Y Affiliates and each of their respective
successors in interest from any and all Liabilities that may arise from the
failure of Toronto Dominion to specifically perform the Independence Bay
Contracts from and after the Effective Date.
4.7. Reichmann Settlement.
On the Effective Date, the Reichmann Entities shall release the
Reichmann Claims. On the Effective Date, the Debtors, the Debtors in
Possession and the O&Y Affiliates shall release the O&Y (U.S.)/Reichmann
Claims to the extent that such Claims have not otherwise been released
pursuant to section 4.1 hereof or as a Restructuring Transaction pursuant
to section 18 hereof. The release provided in the preceding sentence shall
not in any way release O&Y 25 Realty Company, O&Y 25 Realty Company, L.P.
or U.S. Holdings from any Liabilities; provided, however, that the
Reichmann Entities shall be exculpated from all Liabilities arising from
the status of one or more of the Reichmann Entities as a direct or indirect
partner of O&Y 25 Realty Company, O&Y 25 Realty Company, L.P. and U.S.
Holdings, leaving the O&Y Affiliates and its successors with recourse only
to the assets of O&Y 25 Realty Company, O&Y 25 Realty Company, L.P. and
U.S. Holdings. Notwithstanding the foregoing, the release and exculpation
provided for in this section 4.7 shall not prohibit the use by one or more
of the Debtors, the Debtors in Possession and the O&Y Affiliates of the O&Y
(U.S.)/Reichmann Claims as an affirmative defense or a counterclaim;
provided, however, that any such defense or counterclaim shall be used for
purposes of offset or recoupment only and shall not provide a basis for any
affirmative recovery against any Reichmann Entity.
In addition to the foregoing, the Reichmann Entities shall
release any Claims that they may have against the O&Y Affiliates arising
under or relating to their ownership interest in U.S. Holdings or in any
way relating to U.S. Holdings and, if requested by the Debtors or their
successors in interest, cause, or consent to, the dissolution of U.S.
Holdings. The Reichmann Entities shall release any Claims that they may
have against the O&Y Affiliates arising under or relating to their
ownership interest in O&Y 25 Realty Company and O&Y 25 Realty Company, L.P.
or in any way relating to O&Y 25 Realty Company and/or O&Y 25 Realty
Company, L.P. The Reichmann Entities shall
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release any Claims that they may have against the O&Y Affiliates arising
under or relating to their ownership interest in 53 State Street or in any
way relating to 53 State Street and shall cause, or consent to, the
transfer by O&Y 25 Realty Company and O&Y 25 Realty Company, L.P. of their
interests in 53 State Street to Newco LP or its designee. The Reichmann
Entities shall consent to the execution and delivery by O&Y 25 Realty
Company, O&Y 25 Realty Company, L.P and OYDL of a settlement agreement with
O&Y (U.S.), which settlement agreement will be the subject of a separate
motion to be filed with the Court and will be consistent with the Reichmann
Settlement.
The Reichmann Entities acknowledge that the Debtors and their
respective officers and directors have fully discharged all obligations to
the Reichmann Entities under the Corporate Governance Protocol approved by
the Court on July 15, 1993 and that, following consummation of this
settlement on the Effective Date of this Plan, the Debtors and their
respective officers and directors will owe no further obligations to the
Reichmann Entities under the Corporate Governance Protocol.
If A.R.F. Corp. acquires title to the Reichmann Bank Claims from
Svenska Handelsbanken and/or Bank Leumi prior to the Effective Date, A.R.F.
Corp. shall subordinate such acquired Reichmann Bank Claims to Allowed
General Unsecured Claims against Consolidated Devco and/or Consolidated
Realty Corp., as the case may be (with the effect that the Reichmann Bank
Claims shall receive no distribution under the Plan), or transfer the
Reichmann Bank Claims so acquired as directed by one or more of the
Debtors, the Debtors in Possession and the O&Y Affiliates.
If A.R.F. Corp. does not acquire title to the Reichmann Bank
Claims prior to the Effective Date, the Svenska Claims and the Bank Leumi
Claims will be reserved for in the Subclass 7.11.1 Disputed Claims
Debt/Equity Escrow and the Class 8.6 Disputed Claims Equity Escrow as
General Unsecured Claims. The Disbursing Agent shall continue to maintain
reserves on account of the Svenska Claims and the Leumi Claims,
respectively, until such time as Svenska Handelsbanken and/or Bank Leumi,
as the case may be, shall have each independently elected to either (a)
receive the Old Bridge Lands in full satisfaction of their respective
interests in such Claims (subject to the provisions relating to "penalty
events" described below) or (b) receive the respective distributions
reserved for on account of the Svenska Claims and the Bank Leumi Claims.
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Such election shall determine title to the Svenska Claims and the Bank
Leumi Claims.
In the event Svenska Handelsbanken and/or Bank Leumi elect to
receive the treatment provided in clause (a) of the preceding paragraph,
Svenska Handelsbanken and/or Bank Leumi, as the case may be, shall (subject
to the provisions relating to "penalty events" described below) transfer
its Reichmann Bank Claims to A.R.F. Corp. and A.R.F. Corp. shall
subordinate such Claims to Allowed General Unsecured Claims against
Consolidated Devco and/or Consolidated Realty Corp., as the case may be
(with the effect that the Reichmann Bank Claims shall receive no
distribution under the Plan), or transfer such Reichmann Bank Claims as
directed by one or more of the Debtors, the Debtors in Possession and the
O&Y Affiliates. In this event, the reserves established on account of the
Reichmann Bank Claims will be released to the Co-Proponents.
In the event Svenska Handelsbanken and/or Bank Leumi elect to
receive the treatment provided in clause (b) of the second preceding
paragraph, (a) Svenska Handelsbanken, in the event it has made such
election, will receive the reserved distribution on account of the Svenska
Claims from the Class 8.6 Disputed Claims Equity Escrow and the Subclass
7.11.1 Disputed Claims Debt/Equity Escrow and (b) Bank Leumi, in the event
it has made such election, will receive the reserved distribution on
account of the Bank Leumi Claims from the Subclass 7.11.1 Disputed Claims
Debt/Equity Escrow. In consideration of such distributions, on the date of
such distributions, Svenska Handelsbanken and/or Bank Leumi, in the case of
its or their election in clause (b) of the second preceding paragraph,
shall transfer its or their rights under the mortgages relating to the Old
Bridge Lands to A.R.F. Corp. and A.R.F. Corp. shall transfer such mortgages
to Newco LP or its designee. In the event of such transfers, the Reichmann
Entities agree to sell the Old Bridge Lands as directed by Newco LP or its
designee.
The provisions of the preceding four paragraphs will be
implemented through a four-party agreement to be executed and delivered by
and among O&Y (U.S.), A.R.F. Corp., Svenska Handelsbanken and Bank Leumi on
or prior to the Effective Date. Such agreement shall provide, among other
things, that (a) in the event certain "penalty events" occur in connection
with the Old Bridge Lands, Svenska Handelsbanken and Bank Leumi shall be
entitled to receive the Old Bridge Lands and a distribution from, and only
from, the Subclass 7.11.1 Disputed Claims Debt/Equity Escrow and
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the Class 8.6 Disputed Claims Equity Escrow equal to the out-of-pocket
costs of Svenska Handelsbanken and Bank Leumi incurred in connection with
curing such penalty events or the diminution in value of the Old Bridge
Lands caused thereby as set forth in such agreement but in no event shall
such distribution from such escrows exceed the amount reserved in such
escrows on the Effective Date on account of the Leumi Claims and the
Svenska Claims in accordance with this settlement, (b) Paul Reichmann will
indemnify O&Y (U.S.) for any diminution in the value of the consideration
to be provided to O&Y (U.S.) under this settlement arising from a
distribution required to be made from the reserves to Svenska Handelsbanken
and Bank Leumi in accordance with clause (a) of this paragraph, (c) the
sole recourse of Svenska Handelsbanken on account of the Svenska Claims and
Bank Leumi on account of the Bank Leumi Claims with respect to the Debtors
and the O&Y Affiliates shall be to the amounts reserved in the Subclass
7.11.1 Disputed Claims Debt/Equity Escrow and the Class 8.6 Disputed Claims
Equity Escrow on account of the Leumi Claims and the Svenska Claims and
their rights under the four-party agreement, (d) A.R.F. Corp. shall be
authorized to sell the Old Bridge Lands and distribute the proceeds thereof
upon the consent of Svenska Handelsbanken and Bank Leumi and (e) upon a
default by A.R.F. Corp. under the four-party agreement, each of Bank Leumi
and Svenska Handelsbanken shall be entitled to receive the Old Bridge Lands
and the reserved distribution on account of the Bank Leumi Claims and the
Svenska Claims, respectively, and O&Y (U.S.) shall have recourse in such
event to the indemnity to be issued by Paul Reichmann.
In addition to the foregoing:
(a) The Reichmann Entities shall provide to the Debtors a letter
in the form previously provided to the Debtors by counsel for the Reichmann
Entities describing the financial condition of MAT Investment, Inc.
(b) The Family Corps. shall provide to the Debtors their most
recent financial statements and journal entries reflecting significant
transactions subsequent to the date of such financial statements in the
form actually maintained by the Family Corps. in the operation of their
respective businesses.
(c) The Reichmann Entities shall cooperate in all reasonable
requests made by the Debtors to assist them in prosecuting this Plan and
any requests to preserve and protect the assets of the Debtors, the Debtors
in Possession
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and the O&Y Affiliates; provided, however, that, in no event shall this
agreement to cooperate require any Reichmann Entity to take any action
which could create, impose or otherwise result in any liability to any
Reichmann Entity. At the request of one or more of the Debtors or their
respective successors, such cooperation shall include:
(i) Albert Reichmann shall provide testimony and any
existing and available documentary evidence relating
to the management and control of OYREUSA, Baden and
Realty Corp. in connection with the substantive
consolidation of such Entities; and
(ii) Subject to any required consent of and receipt of any
required waivers by Coopers & Lybrand OYDL,
Inc./Limited for (or any other person authorized to
act on behalf of) OYDL, OYDL's Canadian counsel shall
provide information concerning the tax history and
reporting provisions of Realty Corp., Devco Canada,
Equity Canada and SF Holdings, including the history
of significant transactions and assist in the defense
of any actions prosecuted or Claims asserted by OYDL
or Coopers & Lybrand OYDL, Inc./Limited to establish
or collect on Claims against SF Holdings.
(d) If requested by one or more of the Debtors, the Debtors in
Possession, the O&Y Affiliates or Newco LP, the Reichmann Entities shall
cause the current owners of the capital stock of OYDL, if provided the
opportunity at no out-of-pocket cost to such owners and provided that there
are no adverse tax consequences to such owners, to receive and hold,
directly or indirectly, the capital stock of Realty Corp. in the same
proportions as such owners currently hold such stock. The Reichmann
Entities shall, and shall cause the direct and indirect beneficial owners
of the stock of Realty Corp. (including, to the extent the Reichmann
Entities are able, OYDL) to, refrain from taking any action that would
result in an "ownership change" of Realty Corp. within the meaning of
section 382 of the IRC.
(e) In the event that subsequent to the Effective Date,
Coopers & Lybrand OYDL, Inc./Limited or any other person claiming by,
through, or under OYDL or any successor
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holder of the 25 Realty Note, shall maintain any action or proceeding
challenging the enforceability or propriety of the transfer or
subordination of the Reichmann Bank Claims in accordance with this
settlement, or to impose any Liability on any Reichmann Entity as a result
of such transfer or subordination, Newco LP shall defend any such action
and shall hold the Family Corps. and each and every Reichmann Entity
harmless from any and all Claims, debts or Liabilities based upon, arising
out of and related to such transfer or subordination.
4.8. Amex Settlement.
On the Effective Date and in full satisfaction of all Claims of
Amex against the Debtors, the Debtors in Possession and the O&Y Affiliates,
the Claims of Amex shall be accorded the following treatment:
River Water
By-Pass Project: Amex shall cooperate in the
construction of the River Water By-
Pass Project.
Electric
Arbitration: The O&Y Affiliates will bear the
entire cost of the Merrill Lynch
Settlement relating to the electric
arbitration, including legal fees.
Project Operating
Agreement: Tower A Co. will assume the WFC
Operator Component and will
designate Newco LP or an Affiliate
thereof to perform the services
described in the Project Operating
Agreement.
Existing Claims: All existing claims between Amex
and the O&Y Affiliates with respect
to the World Financial Center will
be released and forever barred.
Amex will have an Allowed
Unaffiliated Unsecured Claim
against Devco in the amount of
$320,000 in complete settlement of
all Claims relating to the World
Financial Center, including,
without limitation, Claims relating
to roof and window warranties, and
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chilled water and other charges
under the Project Operating
Agreement.
Amex/Retailco
Lease: Amex will have an Allowed
Unaffiliated Unsecured Claim
against Devco in the amount of
$4,000,000, representing the
maximum damages that Amex would be
allowed under the Bankruptcy Code
for unpaid rent and for damages if
the Amex/Retailco Lease had been
rejected.
Retailco shall hold any amounts due
Amex for the existing base rent
under the Amex/Retailco Lease
(approximately $50,000 per month)
which have accrued or will accrue
for the period from June 1, 1996
through the last day of the month
prior to the month in which the
Confirmation Order becomes a Final
Order. On the date upon which the
Confirmation Order becomes a Final
Order, such amounts will be released
and paid over to Amex. Thereafter,
for each whole month beginning with
the month during which the
Confirmation Order becomes a Final
Order and ending February 1997,
Retailco shall pay to Amex the
amounts due Amex for the existing
base rent under the Amex/Retailco
Lease (approximately $50,000 per
month).
Notwithstanding the terms of the
immediately preceding paragraph, in
the event that the Confirmation
Order does not become a Final Order
on or prior to December 30, 1996,
then, on December 31, 1996, Retailco
shall release to Amex an amount
equal to the existing monthly base
rent under the Amex/Retailco Lease
for the preceding seven (7) months
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(approximately $350,000).
Thereafter, for each of January
1997 and February 1997, Retailco
shall pay to Amex the amounts due
Amex for the existing base rent
under the Amex/Retailco Lease
(approximately $50,000 per month).
In addition to the amounts to be
paid to Amex in the preceding two
paragraphs, as of the Effective
Date, the Amex/Retailco Lease will
be restructured as follows:
The Amex/Retailco Lease will be
modified to reduce the base rent
thereunder to $1 per annum for the
period commencing June 1, 1996 and
ending on the Rent Abatement
Termination Date. After this initial
period, there will be fair market
rent reviews at five (5) year
intervals. There will be no accrual
of rent. Fair market rent reviews
will be based on the actual net
income which the tenant under the
Amex/Retailco Lease can reasonably
be anticipated to receive during the
next five (5) year period, taking
into account continued use of space
for current uses, leases in place,
anticipated renewals, actual and
anticipated expenses and capital
requirements, and leaseability of
vacant space as retail space. Rent
reviews will be upward or downward
(but not less than $1). The tenant
will continue to be obligated to pay
PILOT (payment in lieu of taxes),
other ground rent obligations,
directly metered utilities and the
tenant's share of actual costs for
shared expense areas, including
Winter Garden PILOT and insurance
and Central Plant PILOT and
insurance, in each case as per the
existing Amex/Retailco Lease, and
other operating expenses at the rate
of
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$4.25 per usable square foot,
escalated annually by the percentage
increase in WFC Common Area
Expenses, exclusive of Major Repairs
(as such terms are defined in the
Project Operating Agreement).
If the fair market rent as
determined in any fair market rent
review is less than 90% of the base
rent that would have been payable
under the existing Amex/Retailco
Lease, Amex will have the right to
cancel the Amex/Retailco Lease
(unless the successor tenant to the
O&Y Affiliates agrees to pay at
least 90% of the existing base
rent). If Amex cancels the
Amex/Retailco Lease, the successor
tenant to the O&Y Affiliates shall
have the right of first refusal to
manage the retail areas of Tower C.
The Amex/Retailco Lease, as
modified, will be assigned to Newco
LP or an affiliate thereof. The
tenant's liability under the
Amex/Retailco Lease will be limited
to its interest in the leased
premises. In the event that an
entity that elects to be treated as
a real estate investment trust for
federal income tax purposes is
admitted to Newco LP as a partner,
Newco LP may assign to such Entity
its rights and obligations under the
Amex/Retailco Lease.
Mutual Releases: Subject to the other provisions of
this Amex Settlement, from and
after the Effective Date, (i) Amex
and any Entity related to Amex, and
each of their Affiliates, agents,
officers, directors, employees,
representatives, attorneys,
accountants, financial advisors,
investment bankers, appraisers,
advisors and engineers (each in
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their capacity as such) shall be
released from all claims of the O&Y
Affiliates and the Debtors and (ii)
the O&Y Affiliates and the Debtors
and each of their Affiliates,
agents, officers, directors,
employees, representatives,
attorneys, accountants, financial
advisors, investment bankers,
appraisers, advisors and engineers
(each in their capacity as such)
shall be released from all claims of
Amex, any Entity related to Amex and
each of their Affiliates.
4.9. Bank of Nova Scotia Settlement.
On the Effective Date, in full satisfaction of the Bank of Nova
Scotia Claims, Bank of Nova Scotia will be delivered an instrument
entitling it to participate in any monetary recoveries from the sale of the
MCJV Lands, which instrument shall be secured by a pledge of the MCJV
Pledged Notes, on the following basis:
Management: Newco LP will be solely responsible
for:
(i) managing the MCJV Lands,
(ii) making all decisions with
respect to the conduct of
litigation (including
settlement thereof)
affecting the interest of
Newco LP in the MCJV Lands
(including any litigation
with respect to the MCJV
Notes), and
(iii) making all decisions with
respect to all matters
pertaining to the
maintenance, management,
marketing and sale of the
MCJV Lands.
Budgets: Newco LP will provide Bank of Nova
Scotia with annual budgets with
respect to the MCJV Lands and the
interest of Newco LP therein,
including anticipated litigation
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costs. Budgets, and any amendments
thereto, will be subject to the
review and approval of Bank of Nova
Scotia. Newco LP shall not make any
payments to enhance the value of the
MCJV Lands not in compliance with
the approved budget without the
consent of Bank of Nova Scotia.
Newco LP shall be entitled to make
any payment and incur any cost that
it reasonably determines to be
necessary to preserve the value of
the MCJV Lands or to protect the
interest of Newco LP therein. Other
than with respect to the consent
rights described in this paragraph,
Newco LP shall consult with Bank of
Nova Scotia prior to making any
payment not in compliance with the
approved Budget. Newco LP will
advise Bank of Nova Scotia of any
material developments relating to
the maintenance, management,
marketing and sale of the MCJV
Lands.
Funding Commitment: Subject to the preceding paragraph,
Newco LP will pay up to $4,500,000
of the costs incurred with respect
to the preservation, maintenance,
management, marketing and sale of
the MCJV Lands (including all
unpaid real estate taxes relating
to the MCJV Lands), the enhancement
of the value of the MCJV Lands, and
the conduct of any litigation
affecting the interest of Newco LP
in the MCJV Lands (the "Costs").
"Costs," as defined, shall not
include any Costs pertaining to the
construction of a building on the
MCJV Lands. All Costs shall be
paid in a timely manner, provided
that real estate taxes may be
deferred until such time as the
MCJV Lands may be subjected to a
tax sale. Subject to the preceding
paragraph, in addition to the
commitment to fund up to $4,500,000
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of Costs, Newco LP shall be
entitled, in its sole discretion
(but not obligated), to fund any
other Costs in excess of $4,500,000
All Costs paid by Newco LP with
respect to this section (whether
under the $4,500,000 commitment or
the discretionary authority of Newco
LP) shall be entitled to a priority
recovery (the "Cost Recovery
Priority") from any sales proceeds
of the MCJV Lands (and/or Newco LP's
interest therein) as specified
below. Solely to the extent Newco LP
shall fail to pay any Costs required
to preserve the value of the MCJV
Lands when due and payable, the Bank
of Nova Scotia shall have the right
to pay such Costs and shall be
entitled to reimbursement thereof
together with interest as specified
below as a Cost Recovery Priority.
All income generated by the MCJV
Lands and distributed to Newco LP
and any Affiliates shall be first
applied to the payment of Costs.
Allocation of Sale
Proceeds: Upon a sale or sales of all or a
portion of the MCJV Lands, the
proceeds thereof shall be allocated
and paid (subject to any applicable
withholding tax requirements) as
follows:
The first $15,000,000 in gross sales
proceeds from the sale of all or a
portion of the MCJV Lands will be
used first to (a) pay any then
outstanding real estate taxes
(unless assumed by the purchaser),
(b) pay all outstanding costs of the
sale or any prior sale that have not
yet been reimbursed pursuant to this
section, and (c) repay any
outstanding Cost Recovery Priority,
together with interest accrued
thereon at 10% per annum,
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calculated and compounded annually
(which repayment obligation shall be
evidenced by the issuance and
delivery from the entity at the time
owning the MCJV Lands of a
nonrecourse promissory note made
payable to Newco LP). The balance of
the first $15,000,000 in gross sales
proceeds shall be distributed 50% to
Newco LP and 50% to Bank of Nova
Scotia. The gross sales proceeds in
excess of $15,000,000 shall be
distributed 75% to Newco LP and 25%
to Bank of Nova Scotia.
Pledge Agreement: The instrument issued to Bank of
Nova Scotia shall be secured by a
pledge of Newco LP's interest in
the MCJV Pledged Notes, which
pledge shall either be the Baden
Pledge, as modified, or a new
pledge of the MCJV Pledged Notes.
4.10. Dragon Settlement.
On the Effective Date, in full satisfaction of any and all Claims
of Dragon against the Debtors, the Debtors in Possession and the O&Y
Affiliates (other than O&Y Concord 60 Broad Street Company), the Dragon
Unsecured Claim shall be Allowed in the amount of $60,000,000 and shall be
provided the treatment accorded to Allowed Co-Proponent Unsecured Claims
set forth in section 7.11.2 hereof. Nothing in this section 4.10 or any
other provision of this Plan shall prejudice or in any way release the
Liens and Claims of Dragon against O&Y Concord 60 Broad Street Company. In
consideration of the treatment provided to Dragon in this section 4.10,
Dragon shall release and waive all other Claims that it has or may have
against the Debtors, the Debtors in Possession and the O&Y Affiliates
(other than O&Y Concord 60 Broad Street Company) with the effect that
Dragon shall only have recourse to the assets of O&Y Concord 60 Broad
Street Company.
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4.11. Oppenheimer Indirect Capital Contribution and
Treatment of Oppenheimer Claim.
On the Effective Date, (a) in order to assist Tower A Co. in its
settlement with TIAA and subject to a resolution of the partnership issues
relating to Tower A as set forth below, Oppenheimer shall contribute to the
capital of Tower A Associates the sum of $6,000,000 which will ultimately
be used by Tower A Co. to fund $6,000,000 of the Cash payments required to
be made to TIAA in accordance with section 4.5 hereof and (b) in full
satisfaction and settlement of all Claims that Oppenheimer has filed or
could have filed against any of the Debtors, the Debtors in Possession and
the O&Y Affiliates (other than Oppenheimer's Claim against Devco relating
to commercial rent taxes and any claims arising in connection with
Oppenheimer's lease of space at Tower A) and all Claims arising in
connection with Oppenheimer's indirect Equity Interest in Tower A Co.,
Oppenheimer shall have an Allowed Unaffiliated Unsecured Claim against
Devco arising out of the partnership agreement for Tower A Co. in an agreed
amount equal to $60,000,000, which Claim shall receive the treatment
described in section 7.11.1 hereof.
Oppenheimer and the Debtors have agreed that the Tower A Co.
Partnership Agreement shall be amended in the following manner.
The Tower A Co. Partnership Agreement will be amended to include
a provision that specially allocates a portion of the federal income tax
deduction attributable to the TIAA settlement to TALP in an amount equal to
the Oppenheimer contribution. Tower A Co. will report the TIAA settlement
as a deductible payment for federal income tax purposes.
The receivable due to Tower A Co. from BPHI, Devco, and Tower A
Holding (the "Tower A Partner Receivable") will be amended to accrue
interest at 10.5% per annum, compounded semi-annually. Such interest will
be due and payable upon a repayment of the Tower A Partner Receivable.
Tower A Co.'s tax reporting for interest accruals on the Tower A Partner
Receivable will conform to the obligor's reporting of such interest
accruals.
All existing preferences in the Tower A Co. Partnership Agreement
will be deleted.
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The Tower A Co. Partnership Agreement will be amended to
explicitly acknowledge that the Restructuring Transactions involving Tower
A Co. will not increase the amount of gain allocable to TALP under section
704(c) of the IRC or increase TALP's share of "partnership minimum gain"
(as such term is defined in Treasury Regulation ss. 1.704- 2(c)) as
described in Treasury Regulation ss. 1.704-2(g)(1) and that the aggregate
book value of the assets of Tower A Co. will be unchanged as a result of
the Restructuring Transactions.
Section 7.1(c) of the Tower A Co. Partnership Agreement will be
amended to provide that if the 1987 assumptions of portions of the Sanwa
indebtedness made by the partners of Tower A Co. result in an Adjusted
Capital Deficit (as defined in the Tower A Co. Partnership Agreement) for
TALP, unless otherwise required by explicit authority to the contrary,
items of Tower A Co. income and gain shall first be specially allocated to
all partners of Tower A Co. other than TALP until the Adjusted Capital
Deficits of such other partners have been eliminated before any income or
gain is allocated to TALP pursuant to such section 7.1(c).
As of the closing of the Restructuring Transactions, all
provisions of the Tower A Co. Partnership Agreement requiring one party to
indemnify the other with respect to tax terminations will be deleted
(including the Target Allocations, as defined in the Tower A Co.
Partnership Agreement). All partners will waive any claims against the
Debtors, the Debtors in Possession, the O&Y Affiliates, and BPHI with
respect to tax terminations in connection with or prior to the
Restructuring Transactions, provided that Oppenheimer receives an Allowed
Unaffiliated Unsecured Claim in the amount of $60,000,000.
Any other amendment to the Tower A Co. Partnership Agreement, or
any tax reporting by Tower A Co. that is inconsistent with the tax
reporting contemplated by this section 4.11 or otherwise adversely affects
Oppenheimer, shall require the consent of Oppenheimer, which consent shall
not be unreasonably withheld.
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SECTION 5. PROVISIONS FOR PAYMENT OF
ADMINISTRATIVE EXPENSE CLAIMS,
PRIORITY TAX CLAIMS AND OTHER CLAIMS.
5.1. Administrative Expense Claims.
Except as provided in section 26.5.1 hereof, on the Effective
Date, each holder of an Administrative Expense Claim shall be distributed
on account of such Administrative Expense Claim an amount in Cash equal to
the amount of such Administrative Expense Claim allowed by the Bankruptcy
Court, except to the extent that any Entity entitled to payment of any
Administrative Expense Claim agrees to a different treatment of such
Administrative Expense Claim. Each holder of an Administrative Expense
Claim against a Debtor or a substantively consolidated group of Debtors
shall be paid by such Debtor or substantively consolidated group of
Debtors, or the successor(s) in interest thereto, (a) upon the later of (i)
the Effective Date and (ii) the date that is ten (10) Business Days after
an order of the Bankruptcy Court with respect to any such Administrative
Expense Claim becomes a Final Order or (b) upon such other terms as may be
mutually agreed upon between such holder of an Administrative Expense Claim
and any of the Debtors.
5.2. Priority Tax Claims.
Except as provided in section 26.5.1 hereof, on the Effective
Date, with respect to each Debtor or substantively consolidated group of
Debtors (other than Tower B Leaseco), each holder of an Allowed Priority
Tax Claim shall be distributed on account of such Allowed Priority Tax
Claim a Tax Note from such Debtor or substantively consolidated group of
Debtors, or the successor(s) in interest thereto, that complies with the
requirements of section 1129(a)(9)(C) of the Bankruptcy Code or such other,
more favorable treatment, as the Debtors in their sole discretion shall
elect. On the Effective Date, each holder of an Allowed Priority Tax Claim
against Tower B Leaseco shall receive a payment in Cash equal to the amount
of such Allowed Priority Tax Claim.
5.3. Consolidated Devco Convenience Claims.
Each holder of a Consolidated Devco Convenience Claim shall be
paid in full the amount of such Consolidated Devco Convenience Claim, in
Cash, on the Effective Date, subject to satisfaction of the Employee
Withholding
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Requirement for Consolidated Devco Convenience Claims that are Compensation
Claims.
SECTION 6. CLASSIFICATION OF CLAIMS
AND EQUITY INTERESTS.
Claims (except for Administrative Expense Claims, Priority Tax
Claims and Consolidated Devco Convenience Claims) against and Equity
Interests in the Debtors are classified as follows:
6.1. Claims Against and Equity
Interests in Consolidated Devco.
6.1.1. Consolidated Devco Class 1 -- Priority Non-Tax Claims
against the Consolidated Devco Entities.
6.1.2. Consolidated Devco Class 2 -- Secured Club Loan Claims
against Devco, Devco GP, Equityco, Equity GP and U.S. Finco.
6.1.3. Consolidated Devco Class 3 -- Secured CIBC/OLP Claims
against Devco, Devco GP and U.S. Finco.
6.1.4. Consolidated Devco Class 4 -- Secured Sumitomo Bank/Tower
D Pledge Loan Claims against Devco and Devco GP.
6.1.5. Consolidated Devco Class 5 -- Secured Citibank Letter of
Credit Claims against Equityco.
6.1.6. Consolidated Devco Class 6 -- Secured Citibank Swap Claim
against Devco.
6.1.7. Consolidated Devco Class 7 -- Secured Sterling National
Letter of Credit Claims against Devco GP.
6.1.8. Consolidated Devco Class 8 -- Secured 245 Park Co.
Partnership Claims against Equityco.
6.1.9. Consolidated Devco Class 9 -- CIBC/Lost Note Indemnity
Claims against O&Y Finco, Equityco and Equity GP.
6.1.10. Consolidated Devco Class 10 -- Insured Claims against the
Consolidated Devco Entities.
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6.1.11. Consolidated Devco Class 11 -- General Unsecured Claims
against the Consolidated Devco Entities.
6.1.12. Consolidated Devco Class 12 -- Equity Interests in the
Consolidated Devco Entities.
6.2. Claims Against and Equity Interests in Consolidated Realty Corp.
6.2.1. Consolidated Realty Corp. Class 1 -- Priority Non-Tax
Claims against Realty Corp, OYREUSA and Baden.
6.2.2. Consolidated Realty Corp. Class 2 -- Secured Club Loan
Claims against OYREUSA.
6.2.3. Consolidated Realty Corp. Class 3 -- Toronto Dominion
Judgment Claims against Baden.
6.2.4. Consolidated Realty Corp. Class 4 -- Bank of Nova Scotia
Claims against Baden.
6.2.5. Consolidated Realty Corp. Class 5 -- Insured Claims
against Realty Corp., OYREUSA and Baden.
6.2.6. Consolidated Realty Corp. Class 6 -- General Unsecured
Claims against Realty Corp, OYREUSA and Baden.
6.2.7. Consolidated Realty Corp. Class 7 -- Equity Interests in
Realty Corp., OYREUSA and Baden.
6.3. Claims Against and Equity
Interests in SF Holdings.
6.3.1. SF Holdings Class 1 -- Priority Non-Tax Claims against SF
Holdings.
6.3.2. SF Holdings Class 2 -- General Unsecured Claims against SF
Holdings.
6.3.3. SF Holdings Class 3 -- Equity Interests in SF Holdings.
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6.4. Claims Against and Equity
Interests in Devco Canada.
6.4.1. Devco Canada Class 1 -- Priority Non-Tax Claims against
Devco Canada.
6.4.2. Devco Canada Class 2 -- Insured Claims against Devco
Canada.
6.4.3. Devco Canada Class 3 -- General Unsecured Claims against
Devco Canada.
6.4.4. Devco Canada Class 4 -- Equity Interests in Devco Canada.
6.5. Claims Against and Equity
Interests in Equity Canada.
6.5.1. Equity Canada Class 1 -- Priority Non-Tax Claims against
Equity Canada.
6.5.2. Equity Canada Class 2 -- Insured Claims against Equity
Canada.
6.5.3. Equity Canada Class 3 -- General Unsecured Claims against
Equity Canada.
6.5.4. Equity Canada Class 4 -- Equity Interests in Equity
Canada.
6.6. Claims Against and Equity
Interests in Consolidated OLP.
6.6.1. Consolidated OLP Class 1 -- Priority Non- Tax Claims
against Liberty Plaza Co., OLP Co. and Trinity Place Co.
6.6.2. Consolidated OLP Class 2 -- Secured Sanwa/OLP Claims
against Liberty Plaza Co., OLP Co. and Trinity Place Co.
6.6.3. Consolidated OLP Class 3 -- Secured U.S. Finco/OLP Claims
against Liberty Plaza Co., OLP Co. and Trinity Place Co.
6.6.4. Consolidated OLP Class 4 -- Insured Claims against Liberty
Plaza Co., OLP Co. and Trinity Place Co.
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6.6.5. Consolidated OLP Class 5 -- General Unsecured Claims
against Liberty Plaza Co., OLP Co. and Trinity Place Co.
6.6.6. Consolidated OLP Class 6 -- Equity Interests in Liberty
Plaza Co., OLP Co. and Trinity Place Co.
6.7. Claims Against and Equity
Interests in Tower A Co.
6.7.1. Tower A Co. Class 1 -- Priority Non-Tax Claims against
Tower A Co.
6.7.2. Tower A Co. Class 2 -- Secured Sanwa/Tower A Claims
against Tower A Co.
6.7.3. Tower A Co. Class 3 -- TIAA Judgment Claims against Tower
A Co.
6.7.4. Tower A Co. Class 4 -- Insured Claims against Tower A Co.
6.7.5. Tower A Co. Class 5 -- General Unsecured Claims against
Tower A Co.
6.7.6. Tower A Co. Class 6 -- Equity Interests in Tower A Co.
6.8. Claims Against and Equity
Interests in Tower Corp.
6.8.1. Tower Corp. Class 1 -- Priority Non-Tax Claims against
Tower Corp.
6.8.2. Tower Corp. Class 2 -- Secured Club Loan Claims against
Tower Corp.
6.8.3. Tower Corp. Class 3 -- Insured Claims against Tower Corp.
6.8.4. Tower Corp. Class 4 -- General Unsecured Claims against
Tower Corp.
6.8.5. Tower Corp. Class 5 -- Equity Interests in Tower Corp.
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6.9. Claims Against and
Equity Interests in Consolidated 245.
6.9.1. Consolidated 245 Class 1 -- Priority Non-Tax
Claims against 245 Park Co., 245 Holding LP and 245 Corp.
6.9.2. Consolidated 245 Class 2 -- Secured Club Loan Claims
against 245 Holding LP and 245 Corp.
6.9.3. Consolidated 245 Class 3 -- Secured Aetna Mortgage Loan
Claims against 245 Park Co.
6.9.4. Consolidated 245 Class 4 -- Secured DKB Mortgage Loan
Claims against 245 Park Co.
6.9.5. Consolidated 245 Class 5 - Club Loan/245 Park Deficiency
Claims against 245 Holding LP and 245 Park Co.
6.9.6. Consolidated 245 Class 6 -- Insured Claims against 245
Park Co., 245 Holding LP and 245 Corp.
6.9.7. Consolidated 245 Class 7 -- General Unsecured Claims
against 245 Park Co., 245 Holding LP and 245 Corp.
6.9.8. Consolidated 245 Class 8 -- Equity Interests in 245 Park
Co., 245 Holding LP and 245 Corp.
6.10. Claims Against and Equity
Interests in Tower B Leaseco.
6.10.1. Tower B Leaseco Class 1 -- Priority Non- Tax Claims
against Tower B Leaseco.
6.10.2. Tower B Leaseco Class 2 -- Merrill Lynch/Tower B Leaseco
Secured Claim.
6.10.3. Tower B Leaseco Class 3 -- Insured Claims against Tower B
Leaseco.
6.10.4. Tower B Leaseco Class 4 -- General Unsecured Claims
against Tower B Leaseco.
6.10.5. Tower B Leaseco Class 5 -- Equity Interests in Tower B
Leaseco.
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SECTION 7. PROVISIONS FOR TREATMENT OF
CLAIMS AGAINST AND EQUITY
INTERESTS IN CONSOLIDATED DEVCO.
7.1. Priority Non-Tax Claims Against Consolidated Devco
Entities (Consolidated Devco Class 1).
On the Effective Date, in full satisfaction of the Allowed
Priority Non-Tax Claims against the Consolidated Devco Entities, each
holder of an Allowed Priority Non-Tax Claim against the Consolidated Devco
Entities shall be distributed on account of such Allowed Priority Non-Tax
Claim a payment in Cash equal to the amount of such holder's Allowed
Priority Non-Tax Claim.
7.2. Secured Club Loan Claims Against
Devco, Devco GP, Equityco, Equity GP,
and U.S. Finco (Consolidated Devco Class 2).
On the Effective Date and in accordance with the Restructuring
Transactions, the New Club Loan Disbursing Agent shall be distributed, on
account of the Allowed Secured Club Loan Claims against Devco, Devco GP,
Equityco, Equity GP and U.S. Finco, Class A Interests having a value equal
to the lesser of (a) the Allowed Club Loan Claims and (b) the value on the
Confirmation Date of the Collateral securing the Allowed Club Loan Claims
pledged by Devco, Devco GP, Equityco, Equity GP and U.S. Finco. In
accordance with this section 7.2 and sections 8.2, 14.2 and 15.2 hereof and
without duplication, the New Club Loan Disbursing Agent shall be
distributed, in the aggregate and in full satisfaction of the Allowed Club
Loan Claims, Class A Interests having a value equal to the lesser of (a)
the Allowed Club Loan Claims and (b) the value on the Confirmation Date of
the Collateral securing the Allowed Club Loan Claims pledged by any Debtor
under this Plan.
7.3. Secured CIBC/OLP Claims Against Devco, Devco GP
and U.S. Finco (Consolidated Devco Class 3).
On the Effective Date, the CIBC/OLP Claims shall be an Allowed
Claim in the amount of $75,658,000 plus interest accruing from and after
June 30, 1996 through the Effective Date and any unpaid attorneys' fees and
expenses incurred through the Effective Date that are payable under the
agreements evidencing the CIBC/OLP Claims. On the Effective Date, in full
satisfaction of the Allowed CIBC/OLP Claims, CIBC or its designee, in
accordance with the Restructuring Transactions, shall be distributed Class
A
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Interests having a value equal to the lesser of (a) the amount of the
Allowed CIBC/OLP Claims on the Effective Date and (b) the value, as of the
Confirmation Date, of the Collateral securing the Allowed CIBC/OLP Claims.
CIBC, as holder of the Allowed CIBC/OLP Claims, shall not be entitled to
any additional distribution by reason of any Allowed CIBC/OLP Claims filed
against other Debtors for the same loss or damage.
7.4. Secured Sumitomo Bank/Tower D Pledge
Loan Claims Against Devco and Devco GP
(Consolidated Devco Class 4).
On the Effective Date, in full satisfaction of the Allowed
Sumitomo Bank/Tower D Pledge Loan Claims, Sumitomo Bank shall be
distributed a payment in Cash of $74,750,000 plus any unpaid interest at
the rate of LIBOR plus 100 basis points accrued on the Sumitomo Bank/Tower
D Pledge Loan together with any costs and expenses payable under the
Sumitomo Bank/Tower D Pledge Loan through the Effective Date. On the
Effective Date, the Sumitomo Bank/Tower D Pledge Loan and any Claims
otherwise arising under or related to the Sumitomo Bank/Tower D Pledge Loan
or any of the guarantees, mortgages or security interests issued in
connection therewith shall be released and cancelled in consideration of
the treatment provided in this section 7.4.
7.5. Secured Citibank Letter of Credit Claims
Against the Consolidated Devco Entities
(Consolidated Devco Class 5).
On the Effective Date, in full satisfaction of the Allowed
Citibank Letter of Credit Claims against Equityco, Citibank shall be
distributed the Collateral that secures the reimbursement obligation under
the Citibank Letter
of Credit.
7.6. Secured Citibank Swap Claims
Against Devco (Consolidated Devco Class 6).
On the Effective Date, in full satisfaction of the Secured
Citibank Swap Claim, Citibank shall be distributed the Collateral (a
certain Cash account which held $443,507.31 as of March 31, 1996) that
secures the Citibank Swap Claim to the extent such Claim is an Allowed
Secured Claim. The Deficiency Claim on the Allowed Citibank Swap Claim
shall receive the treatment accorded to Co-Proponent Unsecured Claims set
forth in section 7.11.2 hereof.
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7.7. Secured Sterling National Letter of Credit Claims
Against Devco GP (Consolidated Devco Class 7).
On the Effective Date, in full satisfaction of the Allowed
Sterling National Letter of Credit Claims against Devco GP, Sterling
National shall be distributed the Sterling National Amended and Restated
Reimbursement Agreement, pursuant to which Newco LP will be substituted for
Devco GP as the obligor on such reimbursement agreement. The Sterling
National Amended and Restated Reimbursement Agreement will be secured by
the Collateral that secures the reimbursement obligation under the Sterling
National Letter of Credit.
7.8. Secured 245 Park Co. Partnership Claims
Against Devco (Consolidated Devco Class 8).
On the Effective Date, in full satisfaction of the Allowed 245
Park Co. Partnership Claims against Devco, the holders of Allowed 245 Park
Co. Partnership Claims against Devco shall receive the distributions
provided to the holders of Allowed Equity Interests in 245 Park Co. in
section 15.8 hereof.
7.9. CIBC/Lost Note Indemnity Claims
Against O&Y Finco, Equityco and Equity GP
(Consolidated Devco Class 9).
On the Effective Date, in full satisfaction of the Allowed
CIBC/Lost Note Indemnity Claims against O&Y Finco, Equityco and Equity GP,
CIBC shall be distributed the CIBC Amended and Restated Lost Note Indemnity
Agreement, pursuant to which Newco LP will be substituted for O&Y Finco,
Equityco and Equity GP as the obligor on such indemnity agreement.
7.10. Insured Claims Against
Consolidated Devco Entities
(Consolidated Devco Class 10).
On the Effective Date, each holder of an Insured Claim against
any of the Consolidated Devco Entities shall only be entitled to maintain
actions against and obtain payment solely from an insurance company under
an insurance policy or policies issued by such company to, or for the
benefit of, any of the Consolidated Devco Entities.
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7.11. General Unsecured Claims Against
Consolidated Devco Entities
(Consolidated Devco Class 11).
Consolidated Devco Class 11 consists of all General Unsecured
Claims against any of the Consolidated Devco Entities, including all
Unaffiliated Unsecured Claims against any of the Consolidated Devco
Entities and all Co-Proponent Unsecured Claims. Consolidated Devco Class 11
constitutes one class for voting purposes.
7.11.1. Unaffiliated Unsecured Claims.
The provisions of this section 7.11.1 shall be amended as set
forth in Exhibit B hereto.
On the Effective Date and in accordance with the Restructuring
Transactions, each holder of an Allowed Unaffiliated Unsecured Claim
against the Consolidated Devco Entities shall be distributed consideration
having a value equal to 8% of the amount of such Allowed Unaffiliated
Unsecured Claim. Such consideration shall be comprised of (a) Class A
Interests having a value on the Confirmation Date equal to 2.29% of such
holder's Allowed Unaffiliated Unsecured Claim, and (b) a Convertible Note
Interest having a value equal to 5.71% of such Allowed Unaffiliated
Unsecured Claim.
The Convertible Note shall include the following terms and
conditions:
Borrower: Newco LP.
Lender: The Convertible Note Indenture
Trustee on behalf of the
holders of the Convertible
Note Interests.
Face Amount: 5.71% of the aggregate amount
of Allowed Unaffiliated
Unsecured Claims and Disputed
Unaffiliated Unsecured Claims
in their Maximum Allowable
Amounts.
Maturity: 7-1/2 years from the Effective
Date.
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Interest Rate: 8% per annum until the second
anniversary of the Effective
Date; 9% per annum thereafter
until maturity or prepayment.
Interest to be paid quarterly
in arrears. Interest shall
accrue from the earlier of the
Effective Date and December 1,
1996.
Scheduled
Amortization: None.
Security: None.
Recourse: The Convertible Note will be
fully recourse to Newco LP.
Indenture: The terms of the Convertible
Note will be set forth in a
note indenture dated the
Effective Date between Newco
LP and the Convertible Note
Indenture Trustee, such terms
to include the terms set forth
in this section 7.11.1, and
otherwise to be in a form that
is reasonably satisfactory to
the Debtors, the Co-
Proponents, TIAA and the
Creditors' Committee.
Pre-Payment: At any time and from time to
time on or prior to the second
anniversary of the Effective
Date, the Convertible Note
will be pre-payable in whole
or in part, at Newco LP's
option, without penalty. The
Convertible Note Indenture
Trustee will be provided at
least thirty (30) days'
advance notice of any proposed
pre-payment (which notice
shall be sent by the
Convertible Note Indenture
Trustee to each holder of a
Convertible Note Interest) to
provide such holder with time
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to elect to exercise its
right to convert such
interest into a Class A
Interest (the "Conversion
Right") prior to the
pre-payment date. From and
after the second
anniversary of the
Effective Date, the
Convertible Note may only
be pre-paid with the
consent (or deemed consent)
of the holders of
Convertible Note Interests
(such consent to be given
on a holder-by- holder
basis as to such holder's
Convertible Note
Interests). The mechanics
and timing of the
aforementioned pre-payments
will be set forth in the
indenture for the
Convertible Note.
The net proceeds of any
Post- Effective Date
Capital Infusion shall be
transferred (as a
contribution or in the form
of either debt or equity
subordinated to the
Convertible Note), directly
or indirectly, to Newco LP.
Newco LP shall apply any
Post- Effective Date
Capital Infusion (received
by contribution or
otherwise) to pre-payment
of the Convertible Note (to
the extent consented to or
deemed consented to by such
holders with respect to any
such infusion occurring
from and after the second
anniversary of the
Effective Date). The
Convertible Note Indenture
Trustee will be provided at
least thirty (30) days'
advance notice of the
proposed pre-payment (which
notice shall be sent by the
Convertible Note Indenture
Trustee to each holder of a
Convertible Note Interest)
to
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provide each holder with time
to elect to exercise its
Conversion Right.
The pre-payment provisions
of the preceding paragraph
shall not apply with
respect to contributions of
capital (whether in the
form of debt or equity) on
an emergency basis, the
nature of such emergency
events to be agreed upon
and set forth in the
indenture for the
Convertible Note.
Conversion Right: The Conversion Right will be
exercisable at any time and
from time to time only upon
the written notice (the
"Conversion Notice") from a
holder of Convertible Note
Interests. The Conversion
Notice will be required to be
delivered by such holder
(each, an "Exercising Holder")
to the Convertible Note
Indenture Trustee who,
promptly upon receipt of such
notice, will be required to
notify Newco LP thereof. The
timing and other mechanics of
the exercise of the Conversion
Right will be set forth in the
indenture for the Convertible
Note and will be designed,
among other things, to allow
for the exercise of such right
in connection with any
voluntary prepayment, or
mandatory prepayment with the
proceeds of certain Post-
Effective Date Capital
Infusions as provided above,
in each case prior to the
second anniversary of the
Effective Date. Each
Exercising Holder will be
entitled to receive upon
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conversion of its
Convertible Note Interests
that percentage of Class A
Interests that is
determined by dividing the
principal amount plus
accrued interest
outstanding with respect to
the Convertible Note
Interests tendered for
conversion by a conversion
price to be determined on
the Effective Date based on
the reorganization price
per Class A Interest issued
on the Effective Date,
adjusted in accordance with
the anti-dilution
protections set forth below
under "Anti-Dilution
Protections." If Newco LP
reasonably determines that
applicable law would
require Newco LP to
withhold any taxes
otherwise payable by the
relevant Exercising Holder
in respect of the
conversion of a Convertible
Note Interest, each
Exercising Holder shall be
required to fund such tax
withholding as a condition
to the exercise of its
Conversion Right.
Anti-Dilution
Protection: If a subsequent issuance of
equity or securities
exchangeable for or
convertible into equity of
Newco LP occurs, then the
conversion price shall be
adjusted to the extent
appropriate pursuant to a
standard formula to be agreed
upon in accordance with
customary anti-dilution
provisions. In addition, if
the Newco LP Equity Interests
are changed into or exchanged
for a different number or kind
of securities of or interests
in Newco LP or of another
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Entity or for Cash and/or
other property or any
combination thereof by
reason of a merger,
consolidation,
recapitalization,
reclassification,
combination of interests,
exchange of interests or
otherwise, the interests
subject to the Conversion
Right shall be
appropriately and equitably
adjusted in number and kind
(to the extent then
unexercised) such that the
right to purchase such
interests shall thereafter
be exercisable for such
other securities, Cash
and/or other property as
would have been received
for the interests subject
to the Conversion Right had
the right to purchase such
interests been exercised in
full immediately prior to
such transaction. Any such
adjustment will be made
successively each time a
transaction described in
the immediately preceding
sentence is consummated.
Covenants: Until such time as Newco LP
shall have delivered a pre-
payment notice providing for
payment in full of all
outstanding amounts under the
Convertible Note (regardless
of whether the holders of
Convertible Note Interests
shall have elected to accept
such pre-payment), and funded
(or set aside sufficient
amounts to fund) the payments
required to be made to holders
that elect to accept such pre-
payment (a "Full Payment
Triggering Event"), no
restricted payments, such as
redemptions of Equity
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Interests in Newco LP
(other than conversions or
exchanges of Class B
Interests into or for Class
A Interests) or
distributions of any kind
in respect of equity or
subordinated debt (by
contract or structure)
shall be made by Newco LP,
except in respect of (a)
Tax Advances or Withholding
Advances or (b)
distributions of Equity
Interests in connection
with an executive
compensation plan adopted
post-Effective Date by the
Board of Directors of
Managing GP.
No Affiliate transactions
other than on arm's length
terms will be permitted;
provided, however, that
banking and investment
banking transactions that
are concluded as part of a
public offering,
securitization, syndication
or similar distribution in
which non-affiliated
financial intermediaries
participate shall be
presumed to be on arm's
length terms but only to
the extent that the
relevant Affiliates
participate on the same
basis and capacity as the
non-affiliated financial
intermediaries. Any dispute
as to whether any such
Affiliate transaction is
arm's length shall be
resolved by binding
arbitration pursuant to
procedures to be described
in the indenture for the
Convertible Note.
The Convertible Note
Indenture Trustee shall be
provided financial
information relating to
Newco LP and certain of its
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Affiliates to be identified
and agreed upon by the
Debtors, the Co-Proponents
and the Creditors'
Committee.
The indenture for the
Convertible Note will
contain other standard
covenants, representations
and warranties to be agreed
upon by the Debtors, the
Co-Proponents and the
Creditors' Committee.
Tag-Along Rights: The holders of Class A
Interests shall be provided
tag-along rights in accordance
with section 18.13 hereof.
7.11.2. Co-Proponent Unsecured Claims.
On the Effective Date, each Co-Proponent agrees to subordinate
the Allowed Co-Proponent Unsecured Claims held by such Co-Proponent to
enable the holders of Allowed Unaffiliated Unsecured Claims to receive the
distributions under section 7.11.1 hereof. After all distributions required
by section 7.11.1 hereof have been made, the Residual Newco Equity shall be
distributed to the Co-Proponents on account of the Co-Proponents' Capital
Infusion and on account of the Allowed Co-Proponent Unsecured Claims. In
addition, in partial consideration of the Co-Proponents' Capital Infusion
and the Allowed Co-Proponent Unsecured Claims, the Newco LP Partnership
Agreement shall designate Managing GP as the sole general partner of Newco
LP in accordance with section 3 hereof.
7.12. Equity Interests in Consolidated Devco
Entities (Consolidated Devco Class 12).
Each holder of an Equity Interest in each of the
Consolidated Devco Entities will be released in accordance with section 24
of this Plan.
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SECTION 8. PROVISIONS FOR TREATMENT OF CLAIMS
AGAINST AND EQUITY INTERESTS IN
CONSOLIDATED REALTY CORP.
8.1. Priority Non-Tax Claims Against
Realty Corp., Baden and OYREUSA
(Consolidated Realty Corp. Class 1).
On the Effective Date, in full satisfaction of the Allowed
Priority Non-Tax Claims against Realty Corp., each holder of an Allowed
Priority Non-Tax Claim against Realty Corp., Baden or OYREUSA shall be
distributed on account of such Allowed Priority Non-Tax Claim a payment in
Cash equal to the amount of its Allowed Priority Non-Tax Claim.
8.2. Secured Club Loan Claims Against
OYREUSA (Consolidated Realty Corp. Class 2).
On the Effective Date and in accordance with the Restructuring
Transactions, the New Club Loan Disbursing Agent shall be distributed, on
account of the Allowed Secured Club Loan Claims against OYREUSA, Class A
Interests having a value equal to the lesser of (a) the Allowed Club Loan
Claims and (b) the value on the Confirmation Date of the Collateral
securing the Allowed Club Loan Claims pledged by OYREUSA, after taking into
account the treatment of the OpCo Notes set forth in the Restructuring
Transactions. In accordance with this section 8.2 and sections 7.2, 14.2
and 15.2 hereof and without duplication, the New Club Loan Disbursing Agent
shall be distributed, in the aggregate and in full satisfaction of the
Allowed Club Loan Claims, Class A Interests having a value equal to the
lesser of (a) the Allowed Club Loan Claims and (b) the value on the
Confirmation Date of the Collateral securing the Allowed Club Loan Claims
pledged by any Debtor under this Plan.
8.3. Toronto Dominion Judgment Claims Against
Baden (Consolidated Realty Corp. Class 3).
On the Effective Date, and in full satisfaction of the Toronto
Dominion Judgment Claims, Toronto Dominion shall receive the consideration
provided in the Toronto Dominion Settlement described in section 4.6
hereof.
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8.4. Bank of Nova Scotia Claims Against Baden
(Consolidated Realty Corp. Class 4).
On the Effective Date, in full satisfaction of the Bank of Nova
Scotia Claims, Bank of Nova Scotia shall receive the consideration provided
in the Bank of Nova Scotia Settlement described in section 4.9 hereof.
8.5. Insured Claims Against
Realty Corp., OYREUSA and Baden
(Consolidated Realty Corp. Class 5).
On the Effective Date, each holder of an Insured Claim against
any of Realty Corp., OYREUSA and/or Baden shall only be entitled to
maintain actions against and obtain payment solely from an insurance
company under an insurance policy or policies issued by such company to, or
for the benefit of, any of Realty Corp., OYREUSA and/or Baden.
8.6. General Unsecured Claims Against
Realty Corp., OYREUSA and Baden
(Consolidated Realty Corp. Class 6).
On the Effective Date, each holder of an Allowed General
Unsecured Claim against any of Realty Corp., OYREUSA and Baden shall be
distributed, based upon an election to be made by each such holder on such
holder's Ballot, distributions under either of the following options:
(a) In accordance with the Restructuring Transactions, each
holder of an Allowed General Unsecured Claim, including any Co-Proponent,
against any of Realty Corp., OYREUSA and/or Baden that so elects shall be
distributed such holder's Ratable Proportion of (x) Class A Interests
having a value as of the Confirmation Date equal to the value of the
Undisputed Realty Corp. Assets and (y) 100% of the outstanding Class B
Interests; provided, however, that the aggregate percentage of Class B
Interests that is to be distributed to one or more of the Co- Proponents
under this section 8.6(a) shall be reduced by the percentage, if any,
required to be distributed to JMB in accordance with section 15.8.1 hereof.
or
(b) Each holder of an Allowed General Unsecured Claim against any
of Realty Corp., OYREUSA and Baden that qualifies as, and elects to be
treated as, a Realty Corp.
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Cash-Out Claim shall be distributed a payment in Cash equal to such
holder's Realty Corp. Cash-Out Claim; provided, however, that in the event
it is determined, based on the Ballots received by Realty Corp., OYREUSA
and Baden, that the aggregate amount of Cash to be distributed on account
of the Realty Corp. Cash-Out Claims pursuant to this section 8.6(b) exceeds
$500,000 (except to the extent such amount is increased by the Debtors and
the Co-Proponents in their sole discretion), then the election offered in
this section 8.6(b) shall be eliminated and each holder of a Realty Corp.
Cash-Out Claim shall receive the treatment provided in subsection (a) of
this section 8.6 without regard to any election to be treated as a Realty
Corp. Cash-Out Claim.
8.7. Equity Interests in Realty
Corp. (Consolidated Realty Corp. Class 7).
OYDL will retain its Equity Interest in Realty Corp.
SECTION 9. PROVISIONS FOR TREATMENT OF
CLAIMS AGAINST AND EQUITY
INTERESTS IN SF HOLDINGS.
9.1. Priority Non-Tax Claims Against
SF Holdings (SF Holdings Class 1).
On the Effective Date, in full satisfaction of the Allowed
Priority Non-Tax Claims against SF Holdings, each holder of an Allowed
Priority Non-Tax Claim against SF Holdings shall be distributed on account
of such Allowed Priority Non-Tax Claim a payment in Cash equal to the
amount of such holder's Allowed Priority Non-Tax Claim.
9.2. General Unsecured Claims Against
SF Holdings (SF Holdings Class 2).
On the Effective Date, after giving effect to the distributions
required by section 9.1 hereof and the payment of Administrative Expense
Claims against SF Holdings, in full satisfaction of the Allowed General
Unsecured Claims against SF Holdings, each holder of an Allowed General
Unsecured Claim against SF Holdings shall be distributed the lesser of (a)
a payment in Cash equal to the amount of such holder's Allowed General
Unsecured Claim against SF Holdings, if the Available Cash of SF Holdings
at the time is sufficient to fund such payment of all Allowed General
Unsecured Claims against SF Holdings, and (b) a payment in
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Cash equal to such holder's Ratable Proportion of the Available Cash of SF
Holdings on the Effective Date. From and after the Effective Date, in the
event the holders of Allowed General Unsecured Claims against SF Holdings
are provided the distribution provided in clause (b) of the immediately
preceding sentence, if any non-Cash assets of SF Holdings are converted to
Cash, each holder of an Allowed General Unsecured Claim against SF Holdings
shall receive a semi-annualdistribution equal to such holder's Ratable
Proportion of the Cash realized from such conversion of the non-Cash assets
in the immediately preceding six-month period plus any additional Cash
payment required by section 20.5 hereof.
9.3. Equity Interest in SF
Holdings (SF Holdings Class 3).
On the Effective Date, Realty Corp. will transfer all of its
right, title and interest in 100% of the outstanding stock of SF Holdings
to Newco LP.
SECTION 10. PROVISIONS FOR TREATMENT OF
CLAIMS AGAINST AND EQUITY
INTERESTS IN DEVCO CANADA.
10.1. Priority Non-Tax Claims Against
Devco Canada (Devco Canada Class 1).
On the Effective Date, in full satisfaction of the Allowed
Priority Non-Tax Claims against Devco Canada, each holder of an Allowed
Priority Non-Tax Claim against DevcoCanada shall be distributed on account
of such Allowed Priority Non-Tax Claim a payment in Cash equal to the
amount of such holder's Allowed Priority Non-Tax Claim.
10.2. Insured Claims Against
Devco Canada (Devco Canada Class 2).
On the Effective Date, each holder of an Insured Claim against
Devco Canada shall only be entitled to maintain actions against and obtain
payment solely from an insurance company under an insurance policy or
policies issued by such company to, or for the benefit of, Devco Canada.
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10.3. General Unsecured Claims Against
Devco Canada (Devco Canada Class 3).
On the Effective Date, after giving effect to the distributions
required by section 10.1 hereof and the payment of Administrative Expense
Claims against Devco Canada, in full satisfaction of the Allowed General
Unsecured Claims against Devco Canada, each holder of an Allowed General
Unsecured Claim against Devco Canada shall be distributed the lesser of (a)
a payment in Cash equal to the amount of such holder's Allowed General
Unsecured Claim against Devco Canada, if the Available Cash of Devco Canada
at the time is sufficient to fund such payment of all Allowed General
Unsecured Claims against Devco Canada, and (b) a payment in Cash equal to
such holder's Ratable Proportion of the Available Cash of Devco Canada on
the Effective Date. From and after the Effective Date, in the event the
holders of Allowed General Unsecured Claims against Devco Canada are
provided the distribution provided in clause (b) of the immediately
preceding sentence, if any non-Cash assets of Devco Canada are converted to
Cash, each holder of an Allowed General Unsecured Claim against Devco
Canada shall receive a semi-annual distribution equal to such holder's
Ratable Proportion of the Cash realized from such conversion of the
non-Cash assets in the immediately preceding six-month period plus any
additional Cash payment required by section 20.5 hereof.
10.4. Equity Interest in Devco
Canada (Devco Canada Class 4).
OYDL shall retain its Equity Interest in Devco Canada unless it
seeks to dissolve Devco Canada in accordance with the Restructuring
Transactions.
SECTION 11. PROVISIONS FOR TREATMENT OF CLAIMS
AGAINST AND EQUITY INTERESTS IN
EQUITY CANADA.
11.1. Priority Non-Tax Claims Against
Equity Canada (Equity Canada Class 1).
On the Effective Date, in full satisfaction of the Allowed
Priority Non-Tax Claims against Equity Canada, each holder of an Allowed
Priority Non-Tax Claim against Equity Canada shall be distributed on
account of such Allowed Priority Non-Tax Claim a payment in Cash equal to
the amount of such holder's Allowed Priority Non-Tax Claim.
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11.2. Insured Claims Against
Equity Canada (Equity Canada Class 2).
On the Effective Date, each holder of an Insured Claim
against Equity Canada shall only be entitled to maintain actions against
and obtain payment solely from an insurance company under an insurance
policy or policies issued by such company to, or for the benefit of, Equity
Canada.
11.3. General Unsecured Claims Against
Equity Canada (Equity Canada Class 3).
On the Effective Date, after giving effect to the distributions
required by section 11.1 hereof and the payment of Administrative Expense
Claims against Equity Canada, in full satisfaction of the Allowed General
Unsecured Claims against Equity Canada, each holder of an Allowed General
Unsecured Claim against Equity Canada shall be distributed the lesser of
(a) a payment in Cash equal to the amount of such holder's Allowed General
Unsecured Claim against Equity Canada, if the Available Cash of Equity
Canada at the time is sufficient to fund such payment of all Allowed
General Unsecured Claims against Equity Canada, and (b) a payment in Cash
equal to such holder's Ratable Proportion of the Available Cash of Equity
Canada on the Effective Date. From and after the Effective Date, in the
event the holders of Allowed General Unsecured Claims against Equity Canada
are provided the distribution provided in clause (b) of the immediately
preceding sentence, if any non-Cash assets of Equity Canada are converted
to Cash, each holder of an Allowed General Unsecured Claim against Equity
Canada shall receive a semi-annual distribution equal to such holder's
Ratable Proportion of the Cash realized from such conversion of the
non-Cash assets in the immediately preceding six-month period plus any
additional Cash payment required by section 20.5 hereof.
11.4. Equity Interest in Equity
Canada (Equity Canada Class 4).
OYDL shall retain its Equity Interest in Equity Canada unless it
seeks to dissolve Equity Canada in accordance with the Restructuring
Transactions.
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SECTION 12. PROVISIONS FOR TREATMENT OF CLAIMS
AGAINST AND EQUITY INTERESTS IN
CONSOLIDATED OLP.
12.1. Priority Non-Tax Claims Against Liberty
Plaza Co., OLP Co. and Trinity Place Co.
(Consolidated OLP Class 1).
On the Effective Date, in full satisfaction of the Allowed
Priority Non-Tax Claims against Liberty Plaza Co., OLP Co. and Trinity
Place Co., each holder of an Allowed Priority Non-Tax Claim against any of
Liberty Plaza Co., OLP Co. and/or Trinity Place Co. shall be distributed on
account of such Allowed Priority Non-Tax Claim a payment in Cash equal to
the amount of its Allowed Priority Non-Tax Claim.
12.2. Secured Sanwa/OLP Claims Against Liberty
Plaza Co., OLP Co. and Trinity Place Co.
(Consolidated OLP Class 2).
On the Effective Date, in full satisfaction of the Allowed
Sanwa/OLP Claims against Liberty Plaza Co., OLP Co. and Trinity Place Co.,
Sanwa shall be distributed the Sanwa/OLP Restructured Mortgage Loan, which
will have the following terms and conditions:
Initial Loan Balance: $294,552,443, less the amount
of the Initial Paydown.
Initial Paydown/
Distribution: The amount of Cash available
after providing for (a) the
funding of the Real Estate Tax
and Insurance Reserve and the
Cash reserve described below;
(b) payment of chapter 11
costs, Administrative Expense
Claims, Allowed Priority Tax
Claims, Allowed Priority Non-
Tax Claims and Allowed General
Unsecured Claims in accordance
with the treatment accorded
such Allowed Claims in this
Plan, and (c) the
Restructuring Fee described
below, shall be used to fund
the Initial Paydown to Sanwa
and an Initial Distribution to
the holders of the Equity
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Interests in OLP, in each
case equal to one-half of
such available amount.
Maturity: 7 years from the Effective
Date, but not later than
December 31, 2003.
Restructuring Fee: 1% of the initial loan
balance, 50% payable when the
Confirmation Order becomes a
Final Order and 50% payable on
the Effective Date, in each
case payable from the
Available Cash of OLP.
Interest Rate: LIBOR or Sanwa's cost of funds
plus 175 basis points for 5
years. On the earlier of the
fifth anniversary of the
Effective Date and January 1,
2002, Sanwa's spread shall be
increased to 200 basis points
until maturity. Specific
decisions about fixing the
rate will be made by the
owners of New Liberty Plaza
LP, subject to Sanwa's
approval, which approval shall
not be unreasonably withheld.
Amortization/Payment Terms: Interest shall be paid monthly
in arrears. All excess Cash
available during each of the
first five years of the
Sanwa/OLP Restructured
Mortgage Loan will be split
50% to amortization and 50% to
the owners of New Liberty
Plaza LP or their designees
(including, for this purpose,
the asset management fee),
subject to adjustment
beginning in 1999, as provided
below. After the fifth
anniversary of the Effective
Date, all excess cash flow
will be reserved until an
amount is reached that, in
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Sanwa's reasonable
judgment, will be
sufficient to pay all
leasing costs (including
tenant improvements and
leasing commissions, taking
into account projected
vacancy periods) for lease
expirations and any
reasonably anticipated
other vacancies scheduled
or anticipated to occur
prior to December 31, 2005;
thereafter the 50%/50%
split of excess cash flow
will resume with no minimum
amortization, subject to
adjustment as provided
below.
It is agreed that, not
later than December 31,
2001, total principal
payments (including the
Initial Paydown) shall
total not less than total
principal payments would
have been after five years
on a loan amortizing on a
level payment schedule over
20 years with a beginning
balance of $294,552,000.
Beginning on January 1,
1999, the 50%/50% split
between amortization and
distributions will be
subject to adjustment to
increase amortization
payments to Sanwa in order
to generate total principal
payments to Sanwa in
accordance with this
paragraph.
It is also agreed that, not
later than December 31,
2003, total principal
payments shall total not
less than total principal
payments would have been
after seven years on a loan
amortizing on a level
payment schedule over 20
years with a beginning
balance of $294,552,000;
provided, however, that
amortization of
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principal in 2002 and 2003
shall be subordinate to the
establishment of reserves
for leasing costs as
provided above. In 2002 and
2003, the 50%/50% split
after establishment of
reserves for leasing will
be subject to adjustment to
increase amortization
payments to Sanwa in order
to generate total principal
payments to Sanwa in
accordance with this
paragraph.
Real Estate Tax and
Insurance Reserve: On the Effective Date, a Real
Estate Tax and Insurance
Reserve will be established to
provide for a balance of
$3,342,500 as of September 30,
1996, increasing by $1,114,000
per month through December 31,
1996 and by the amount
necessary to fund the timely
payment of insurance premiums.
After the Effective Date,
monthly deposits equal to one-
twelfth of the total annual
payments for real estate
taxes, water and sewer charges
and insurance premiums will be
made to the Real Estate Tax
and Insurance Reserve so as to
accumulate a sufficient
balance to allow timely
payment of all real estate
taxes, water and sewer charges
and insurance premiums when
due.
Cash Flow Application: Cash flow will be applied in
the following priority:
(i) operating expenses,
including property
management fees and
reserves for real estate
taxes (which reserves
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will be
established on
the Effective
Date);
(ii) interest on the
Sanwa/OLP
Restructured
Mortgage Loan;
(iii) top up Cash
reserve to
the amount
required for
leasing costs and
asbestos removal
in accordance with
the Business Plan
described below;
(iv) capital expenditures and
leasing costs to the
extent not paid from
reserves;
and
(v) remaining Cash
will be split with
50% going to
amortization on
the Sanwa/OLP
Restructured
Mortgage Loan and
50% being
distributed to
the owners
of New Liberty
Plaza LP or their
designees. The
50% distribution
to the owners of
New Liberty Plaza
LP or their
designees will
include asset
management fees,
subject to adjust-
ment as described
above to achieve
the required
minimum
amortization
after five years
and seven years.
Cash Reserves: The initial deposit will be
such amount as is necessary
to achieve a balance of
$7,200,000 not later than
December 31, 1996, plus the
sum of any unexpended
amounts
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for (a) leasing costs
(including payments to or
for the benefit of tenants
and leasing commissions)
required with respect to
existing leases and (b)
capital costs (including
asbestos removal) at an
agreed upon level for 1996.
Cash reserves will be
available for leasing
costs, asbestos removal and
other approved uses.
Deposits to and
expenditures from the Cash
reserves shall be in
accordance with the
Business Plan. Beginning on
the Effective Date, Cash
reserves will be increased
to and maintained at the
level necessary to pay all
leasing costs (as
reasonably estimated by
Sanwa) for existing
scheduled and anticipated
vacancies within the
succeeding 24 months, which
shall be carried out in
accordance with the
Business Plan; provided,
however, that in 1997 not
less than $12,500,000 shall
be deposited in the Cash
reserves or expended from
1997 revenues for leasing
costs and other capital
expenditures. As described
above in
Amortization/Payment Terms,
all excess cash flow in the
last two years of the loan
will be reserved until a
reserve amount is
established to cover
upcoming vacancies
scheduled or anticipated
through December 31, 2005.
Asbestos Removal: All remaining asbestos shall
be removed from the building
as soon as reasonably
possible. The cost of such
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removal shall be paid from the
Cash reserves.
Management Fees: Property management fees of 2%
of gross revenues, except that
with respect to revenues from
leases signed after the
Effective Date the fee shall
be 1%. Standard leasing
commissions shall be paid (50%
thereof when the tenant is
represented by a broker).
Asset management fees of 0.5%
in the first and second year
after the Effective Date, and
thereafter 0.35% until
maturity, of Gross Asset
Value, as determined by
trailing four quarters of Net
Operating Income, payable at
the level of priority
described above and in
accordance with the
requirements set forth in Cash
Flow Application.
Collateral: First mortgage on OLP and a
Lien on Cash reserves. The
existing pledge of the O&Y
Affiliates' Equity Interest in
53 State Street and O&Y 25
Realty Co.'s interest in 53
State Street will be released.
Recourse: Nonrecourse. Sanwa will waive
all Claims against OYDL and
Sanwa's guaranty Claim
against Devco will be
estimated at zero and
disallowed.
No Subordinate
Financing: If there are not sufficient
funds in the Cash reserves to
permit timely payment of all
leasing costs as the result of
leasing occurring more quickly
than is currently anticipated
or otherwise, the shortfall
necessary to pay such costs
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shall be provided by the
owners of New Liberty Plaza
LP. Neither the building
nor the revenues of the
building may be used as
Collateral for any loan
obtained by the owners of
New Liberty Plaza LP.
Business Plan: Annually, the managing agent
of the building will present
to Sanwa for its review and
approval, not to be
unreasonably withheld,
provided that it conforms with
sound ownership practices for
first class office buildings
in New York City and does not
impair the ability of New
Liberty Plaza LP to repay
Sanwa at maturity, a "Business
Plan", which shall be updated
on a quarterly basis and shall
be updated more frequently if
circumstances warrant. The
managing agent shall manage
the building in accordance
with the Business Plan. The
Business Plan shall include
the following:
(a) Annual "Budgets", on a
Cash basis, broken down by
month, for (A) revenues,
(B) operating expenses, (C)
capital expenditures
(exclusive of lease-up
costs), and (D) lease-up
costs, which shall be
subject to Sanwa's review
and approval in accordance
with the foregoing
standards. Operating
expenses will include
third-party costs, such as
professional and
consultants' fees to the
extent that such fees are
ordinarily paid in addition
to property management and
asset management fees. In
addition,
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quarterly and no later than
the first business day
after the 20th day of the
first month after each
calendar quarter, the
managing agent shall
provide an actual operating
statement, which will also
show variances from the
prior quarter's Budget and
compare actual year-to-date
performance to the Budget
for the year-to-date
period. The managing agent
shall provide a written
explanation of each
variance that exceeds the
lesser of (x) $50,000 or
(y) 10% of the approved
Budget for that line item
on a year-to-date basis.
(b) Annual "Leasing
Reports", detailing leasing
activity and programs for
the prior calendar year
shall be presented to Sanwa
by the leasing agent,
comparing the actual
activity to the prior
year's projected activity.
Each Leasing Report shall
also (A) describe major
anticipated leasing events,
such as vacancies,
renewals, terminations (due
to anticipated tenant
bankruptcies or defaults),
modifications or take-back
opportunities, (B)
generally describe the
proposed strategy for
dealing with such
anticipated leasing events,
(C) set forth proposed
leasing parameters for
entering into new or
renewal leases in the
building, including credit
standards for tenants,
minimum base rent and
maximum tenant allowances
(whether in the form of
free rent, construction or
other
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inducements or allowances),
and (D) a proposed leasing
budget. The proposed
strategy, leasing
parameters and leasing
budget shall be subject to
Sanwa's prior approval,
which shall not be
unreasonably withheld,
provided that they conform
with sound leasing
practices for first class
office buildings in New
York City and do not impair
the ability of New Liberty
Plaza LP to pay Sanwa in
full at maturity.
Notwithstanding the
foregoing, including the
parameters set forth in the
Leasing Report, eligibility
for applying the Cash
reserves shall be governed
by the leasing standards to
be agreed upon by Sanwa and
the Debtors. New Liberty
Plaza LP may amend, modify
or terminate leases in
accordance with the
approved Leasing Report and
Business Plan. The monthly
report of operating
expenses shall be
accompanied by copies of
all newly executed leases
and amendments, extensions,
etc., of existing leases.
Consent to Use
of Cash Collateral: Sanwa shall consent to the use
of its Cash Collateral to be
used to fund the distributions
to the holders of
Administrative Expense Claims,
Allowed Priority Tax Claims,
Allowed Priority Non-Tax
Claims and Allowed General
Unsecured Claims in accordance
with sections 5.1, 12.1 and
12.5 hereof.
Outside Closing Date: If the Effective Date is after
December 31, 1996, Sanwa shall
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be paid monthly amounts
calculated as interest on
the Sanwa/OLP Mortgage Loan
at a rate of LIBOR plus 175
basis points for the period
commencing December 31,
1996 and ending on the
Effective Date.
Ownership/Bankruptcy
Remote Structure: A bankruptcy remote structure
will be provided as set forth
in section 18.5.3 hereof.
Events of Default: The Sanwa/OLP Restructured
Mortgage Loan will contain
customary events of default in
similar circumstances,
including but not limited to
the following events of
default:
(i) Failure to comply with
a cash management
system to be agreed
upon;
(ii) Bankruptcy of New
Liberty Plaza LP or
New OLP Corp.;
(iii) Failure to pay all
monthly expenses under
items (i) and (ii) of
"Cash Flow
Application;"
(iv) Failure to cooperate
in the replacement of
a leasing or
management agent
following an event
of default under a
leasing or management
contract;
and
(v) Events of default
under the Sanwa/OLP
Loan.
Other Provisions: Leasing/Management shall be
consistent with the Tower A
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Plan. Minimum Leasing
Standards and Lease Approval
Standards will be agreed upon
in a manner that reflects
current market conditions.
On the Effective Date, the Sanwa/OLP Mortgage Loan and the Liens on the 53
State Street Collateral (excluding the pledge of O&Y 25 Realty Company's
interest in 53 State Limited) and any Claims otherwise arising under or
related to the Sanwa/OLP Loan or any of the guarantees, mortgages or
security interests issued in connection therewith shall be released and
cancelled in consideration of the Sanwa/OLP Restructured Mortgage Loan.
Sanwa, as the holder of the Allowed Sanwa/OLP Claims, shall not be entitled
to any additional distribution by reason of an Allowed Sanwa/OLP Claim
filed against other Debtors for the same loss or damage or otherwise
arising under or related to the Sanwa/OLP Loan or any of the guarantees,
mortgages or security interests granted in connection therewith.
12.3. Secured U.S. Finco/OLP Claims Against
Liberty Plaza Co., OLP Co. and
Trinity Place Co. (Consolidated OLP Class 3).
On the Effective Date, after giving effect to the distribution to
CIBC in accordance with section 7.3 hereof and in full satisfaction of the
U.S. Finco/OLP Claims against Liberty Plaza Co., CIBC, as the collateral
assignee of the U.S. Finco Mortgages, shall elect, on behalf of U.S. Finco,
to contribute the Allowed U.S. Finco/OLP Claims to the capital of New
Liberty Plaza LP to the extent provided in the Restructuring Transactions.
12.4. Insured Claims Against Liberty
Plaza Co., OLP Co. and Trinity Place Co.
(Consolidated OLP Class 4).
On the Effective Date, each holder of an Insured Claim against
any of Liberty Plaza Co., OLP Co. and Trinity Place Co. shall only be
entitled to maintain actions against and obtain payment solely from an
insurance company under an insurance policy or policies issued by such
company to, or for the benefit of, any of Liberty Plaza Co., OLP Co. and
Trinity Place Co.
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12.5. General Unsecured Claims Against Liberty
Plaza Co., OLP Co. and Trinity Place Co.
(Consolidated OLP Class 5).
On the Effective Date, in full satisfaction of the Allowed
General Unsecured Claims against Liberty Plaza Co., OLP Co. and/or Trinity
Place Co., each holder of an Allowed General Unsecured Claim against
Liberty Plaza Co., OLP Co. and/or Trinity Place Co. will be distributed a
payment in Cash equal to the amount of such Allowed General Unsecured Claim
against Liberty Plaza Co., OLP Co. and/or Trinity Place Co.
12.6. Equity Interests in Liberty Plaza Co., OLP Co.,
and Trinity Place Co. (Consolidated OLP Class 6).
On the Effective Date and in accordance with the Restructuring
Transactions, Devco and Devco GP shall be distributed, on account of their
Allowed Equity Interests in Liberty Plaza Co., OLP Co. and Trinity Place
Co., Equity Interests in New Liberty Plaza LP, the reorganized successor to
Liberty Plaza Co., OLP Co. and Trinity Place Co. pursuant to section 18.5
hereof.
SECTION 13. PROVISIONS FOR TREATMENT OF CLAIMS
AGAINST AND EQUITY INTERESTS IN
TOWER A CO.
13.1. Priority Non-Tax Claims Against
Tower A Co. (Tower A Co. Class 1).
On the Effective Date, in full satisfaction of the Priority
Non-Tax Claims against Tower A Co., each holder of an Allowed Priority
Non-Tax Claim against Tower A Co. shall be distributed a payment in Cash
equal to the amountof such holder's Allowed Priority Non-Tax Claim against
Tower A Co.
13.2. Secured Sanwa/Tower A Claims Against
Tower A Co. (Tower A Co. Class 2).
On the Effective Date, in full satisfaction of the Sanwa/Tower A
Claims, Sanwa shall be distributed the Sanwa/Tower A Restructured Mortgage
Loan, which will provide for the following:
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Initial Loan
Balance: $480,000,000, less the sum of
(i) amortization paid during
the chapter 11 case and (ii)
the Initial Paydown.
Initial Paydown: $22,400,000.
Initial Settlement
Distribution: $5,000,000.
Initial Distribution: None.
Maturity: 7 years from the Effective
Date, but not later than
December 31, 2003.
Interest Rate: 8.893125% until January 25,
1999, thereafter Sanwa's cost
of funds plus 50 basis points
until maturity. Prior to the
Confirmation Hearing, Sanwa
shall propose, subject to the
agreement of New Tower A LP,
when and to what extent the
interest rate is to be fixed
for the period from January 1,
1999 until maturity.
Amortization/
Payment Terms: Interest shall be paid monthly
in arrears. All available
Cash, after payment of
expenses and deposits in
reserves to the extent
described below, will be
applied quarterly to
amortization of the
Sanwa/Tower A Restructured
Mortgage Loan.
Cash Flow
Application: Cash flow will be applied in
the following priority:
(i) operating expenses,
including property
management fees and
reserves for PILOT
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(payment in lieu of
taxes) and ground rent
payments and for
insurance (which reserves
will be established on
the Effective Date);
(ii) interest on the
Sanwa/Tower A
Restructured Mortgage
Loan;
(iii) deposits to the Cash
reserve for leasing and
capital costs to the
extent required by the
Business Plan approved by
Sanwa;
(iv) leasing costs and capital
expenditures, to the
extent not paid from the
Cash reserves;
(v) $1,000,000 in asset
management fees, payable
quarterly in arrears in
1997-1999, but no asset
management fees
thereafter; and
(vi) the balance quarterly to
Sanwa to amortize
the Sanwa/Tower A
Restructured
Mortgage Loan.
Cash Reserves on the
Effective Date: Initially, $5,000,000 which
will be available for leasing
costs and capital
expenditures, the amount and
expenditure of which will be
pursuant to the Business Plan
approved by Sanwa.
Management Fees: Property management fees of 2%
of gross revenues, except that
with respect to revenues from
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leases signed after October
11, 1995 the fee shall be
1%. Standard leasing
commissions (50% thereof
when the tenant is
represented by a broker).
Asset management fees of $1
million per annum in
1997-1999 only.
Collateral: First mortgage on leasehold
estate and a first Lien on
Cash reserves.
Recourse: Nonrecourse.
TIAA: TIAA will have no further
Claims whatsoever against
Tower A or Tower A Co, except
as expressly provided in
section 4.5 hereof.
Business Plan: Annually, the managing agent
of the building will present
to Sanwa for its review and
approval, not to be
unreasonably withheld,
provided that it conforms with
sound ownership practices for
first class office buildings
in New York City, a "Business
Plan", which shall be updated
on a quarterly basis and shall
be updated more frequently if
circumstances warrant. The
managing agent shall manage
the Building in accordance
with the Business Plan. The
Business Plan shall include
the following:
(a) Annual "Budgets", on a
Cash basis, broken down by
month, for (A) revenues,
(B) operating expenses, (C)
capital expenditures
(exclusive of lease-up
costs), and (D) lease-up
costs, which shall be
subject to Sanwa's review
and approval in
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accordance with the
foregoing standards.
Operating expenses will
include third-party costs,
such as professional and
consultants' fees to the
extent that such fees are
ordinarily paid in addition
to property management and
asset management fees,
subject to reasonable
restrictions on payments to
Affiliates. In addition,
quarterly and no later than
the first Business Day
after the 20th day of the
first month after each
calendar quarter, the
managing agent shall
provide an actual operating
statement, which will also
show variances from the
prior quarter's Budget and
compare actual year-to-date
performance to the Budget
for the year-to-date
period. The managing agent
shall provide a written
explanation of each
variance that exceeds the
lesser of (x) $50,000 or
(y) 10% of the approved
Budget for that line item.
Upon request of Sanwa, the
managing agent shall
deliver to Sanwa evidence
satisfactory to Sanwa of
payment of operating
expenses required to have
been paid in accordance
with the Budget. In
addition, prior to the
Effective Date, the
managing agent shall
provide Sanwa with a
description of current and
anticipated capital
expenditures for 1996
through 2001.
(b) Annual "Leasing
Reports", detailing leasing
activity and programs for
the prior calendar year
shall be presented to Sanwa
by the leasing agent,
comparing the
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actual activity to the
prior year's projected
activity. Each Leasing
Report shall also (A)
describe major anticipated
leasing events, such as
vacancies, renewals,
terminations (due to
anticipated tenant
bankruptcies or defaults),
modifications or take-back
opportunities, (B)
generally describe the
proposed strategy for
dealing with such
anticipated leasing events,
(C) set forth proposed
leasing parameters for
entering into new or
renewal leases in the
building, including credit
standards for tenants,
minimum base rent and
maximum tenant allowances
(whether in the form of
free rent, construction or
other inducements or
allowances), and (D) a
proposed leasing budget.
The proposed strategy,
leasing parameters and
leasing budget shall
conform with sound leasing
practices for first class
office buildings in New
York City. New Tower A LP
may amend, modify or
terminate leases in
accordance with the
approved Leasing Report and
Business Plan. The monthly
report of operating
expenses shall be
accompanied by copies of
all newly executed leases
and amendments, extensions,
etc. of existing leases.
Leasing/Management: A designee of Newco LP will be
the leasing agent and the
managing agent for the
building during the remaining
term of the Sanwa/Tower A
Restructured Mortgage Loan,
subject to the requirements of
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this section. Such Entity
will be entitled, as the
leasing agent for the
building, to a standard
commission for leases for
which there is no broker
and to 50% of a standard
commission for leases for
which the tenant is
represented by a broker. A
schedule of leasing
commissions shall be
proposed by the O&Y
Affiliates prior to the
Effective Date, which shall
be subject to Sanwa's
approval; provided,
however, that such schedule
shall not exceed the
schedule for leasing
commissions for space owned
by Newco LP in the other
"core" New York City
buildings owned by Newco LP
(other than buildings for
which there is no unleased
office space in excess of
10,000 rentable square feet
projected prior to the
maturity of the existing
Sanwa/Tower A Loan, subject
to periodic verification by
Sanwa). Newco LP's designee
may be dismissed as leasing
and managing agent and as
asset manager upon the
occurrence and during the
continuance of an event of
default. In addition, at
Sanwa's option, Newco LP's
designee may be dismissed
as managing agent and asset
manager if occupancy of the
building falls below 85% or
due to the failure to
manage the building within
the approved Budget,
exclusive of (A) emergency
items, (B) tenant defaults
and bankruptcies, (C) items
approved by Sanwa, (D)
failure to manage the
building within
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the approved Budget due to
receipt of revenues either
prior to or later than the
anticipated receipt or due
to payment of expenses
prior to or later than the
anticipated payment,
provided in either case
that the actual receipt or
payment, as the case may
be, is within sixty (60)
days of the projected
receipt or payment, and (E)
increases caused by labor
contracts affecting
commercial buildings
generally or increases in
utility costs that affect
commercial buildings
generally, it being
understood (x) that the
Budget will, to the extent
that it is reasonably
possible to anticipate such
increases (but not the
amount of such increases),
so state, and (y) that
Newco LP will provide
specific information about
such increased expenses
within thirty (30) days
after such information is
available to Newco LP. If
Sanwa exercises the
foregoing right, the
existing leasing and/or
management contracts will
be terminated on thirty
(30) days' notice and
contracts with persons
satisfactory to Sanwa will
be executed and delivered.
Thereafter, no further
leasing, property
management or asset
management fees will be
paid to Newco LP, as the
case may be.
Loan Sales: The limitation set forth in a
side letter dated January 25,
1989 on Sanwa's right to
participate or assign the
Sanwa/Tower A Restructured
Mortgage Loan expired on
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January 25, 1992. The
remaining limitations in
the side letter on Sanwa's
right to participate or
assign the Sanwa/Tower A
Restructured Mortgage Loan,
in whole or in part, will
be eliminated. If Sanwa
determines that it wishes
to solicit bids for the
purchase of all or
substantially all of its
rights and obligations as
lender to New Tower A LP,
Sanwa shall give not less
than twenty (20) days'
written notice of its
intention to solicit bids
to New Tower A LP. In
addition, if a prospective
purchaser solicits an
opportunity to make a bid
to purchase all or
substantially all of
Sanwa's rights and
obligations as lender to
New Tower A LP, and Sanwa
wishes to provide
information to such
prospective purchaser of a
nature that requires or
makes advisable a
confidentiality agreement
between Sanwa and such
prospective purchaser,
within two Business Days
after entering into such
confidentiality agreement,
Sanwa shall give notice
thereof to New Tower A LP.
Other than the rights and
obligations expressly set
forth in the preceding two
sentences, Sanwa shall have
no other obligations and
Tower A Co. shall have no
other rights with respect
to the sale by Sanwa of any
of Sanwa's rights and
obligations as lender to
New Tower A LP.
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Events of Default: The Sanwa/Tower A Restructured
Mortgage Loan will contain
customary events of default in
similar circumstances,
including but not limited, the
following events of default:
(i) Failure to comply with
a cash management
system to be agreed
upon;
(ii) Bankruptcy of New
Tower A LP or New
Tower A Corp.;
(iii) Failure to pay all
monthly expenses under
items (i) and (ii) of
"Cash Flow
Application";
(iv) Failure to
cooperate in the
replacement of a
leasing or
management agent
following an event
of default under a
leasing or
management
contract; and
(v) Events of default
under the Sanwa/Tower
A Loan.
Consent to Use
of Cash Collateral: Sanwa shall consent to the use
of its Cash Collateral to be
used to fund the distributions
to the holders of
Administrative Expense Claims,
Allowed Priority Tax Claims,
Allowed Priority Non-Tax
Claims and Allowed General
Unsecured Claims in accordance
with sections 5.1, 13.1 and
13.5 hereof.
Bankruptcy Remote Structure: A bankruptcy remote structure will
be provided as set forth in section 18.7.3 hereof.
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On the Effective Date, the Sanwa/Tower A Mortgage Loan and any
Claims otherwise arising under or related to the Sanwa/Tower A Mortgage
Loan or any of the guarantees, mortgages or security interests issued in
connection therewith, shall be released and cancelled in consideration of
the Sanwa/Tower A Restructured Mortgage Loan.
13.3. TIAA Judgment Claims Against
Tower A Co. (Tower A Co. Class 3).
On the Effective Date and in full satisfaction of the Allowed
TIAA Judgment Claims, TIAA shall receive the consideration provided in the
TIAA Settlement described in section 4.5 hereof.
13.4. Insured Claims Against
Tower A Co. (Tower A Co. Class 4).
On the Effective Date, each holder of an Insured Claim against
Tower A Co. shall only be entitled to maintain actions against and obtain
payment solely from an insurance company under an insurance policy or
policies issued by such company to, or for the benefit of, Tower A Co.
13.5. General Unsecured Claims Against
Tower A Co. (Tower A Co. Class 5).
On the Effective Date, in full satisfaction of the Allowed
General Unsecured Claims against Tower A Co., each holder of an Allowed
General Unsecured Claim against Tower A Co. shall be distributed such
holder's Ratable Proportion of $100,000, payable from the Available Cash of
Tower A Co.
13.6. Equity Interests in
Tower A Co. (Tower A Co. Class 6).
On the Effective Date and in accordance with the Restructuring
Transactions, each holder of an Allowed Equity Interest in Tower A Co.
shall have an Allowed Equity Interest and shall retain such Allowed Equity
Interest in Tower A Co.
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SECTION 14. PROVISIONS FOR TREATMENT OF
CLAIMS AGAINST AND EQUITY
INTERESTS IN TOWER CORP.
14.1. Priority Non-Tax Claims Against Tower
Corp. (Tower Corp. Class 1).
On the Effective Date, in full satisfaction of the Allowed
Priority Non-Tax Claims against Tower Corp., each holder of an Allowed
Priority Non-Tax Claim against Tower Corp. shall be distributed on account
of such Allowed Priority Non-Tax Claim a payment in Cash equal to the
amount of such holder's Allowed Priority Non-Tax Claim against Tower Corp.
14.2. Secured Club Loan Claims
Against Tower Corp. (Tower Corp. Class 2).
On the Effective Date and in accordance with the Restructuring
Transactions, the New Club Loan Disbursing Agent shall be distributed, on
account of the Allowed Secured Club Loan Claims against Tower Corp., Class
A Interests having a value equal to the lesser of (a) the Allowed Club Loan
Claims and (b) the value on the Confirmation Date of the Collateral
securing the Allowed Club Loan Claims pledged by Tower Corp. In accordance
with this section 14.2 and sections 7.2, 8.2 and 15.2 hereof and without
duplication, the New Club Loan Disbursing Agent shall be distributed, in
the aggregate and in full satisfaction of the Allowed Club Loan Claims,
Class A Interests having a value equal to the lesser of (a) the Allowed
Club Loan Claims and (b) the value on the Confirmation Date of the
Collateral securing the Allowed Club Loan Claims pledged by any Debtor
under this Plan.
14.3. Insured Claims Against
Tower Corp. (Tower Corp. Class 3).
On the Effective Date, each holder of an Insured Claim against
Tower Corp. shall only be entitled to maintain actions against and obtain
payment solely from an insurance company under an insurance policy or
policies issued by such company to, or for the benefit of, Tower Corp.
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14.4. General Unsecured Claims Against
Tower Corp. (Tower Corp. Class 4).
Each holder of a General Unsecured Claim against Tower Corp. will
receive no distribution on account of such holder's General Unsecured Claim
against Tower Corp.
14.5. Equity Interests in Tower
Corp. (Tower Corp. Class 5).
Each holder of an Equity Interest in Tower Corp. shall receive no
distribution on account of such Equity Interest in Tower Corp.
SECTION 15. PROVISIONS FOR TREATMENT OF
CLAIMS AGAINST AND EQUITY
INTERESTS IN CONSOLIDATED 245.
15.1. Priority Non-Tax Claims Against
245 Park Co., 245 Holding LP
and 245 Corp. (Consolidated 245 Class 1).
On the Effective Date, in full satisfaction of the Allowed
Priority Non-Tax Claims against 245 Park Co., 245 Holding LP and/or 245
Corp., each holder of an Allowed Priority Non-Tax Claim against any of 245
Park Co., 245 Holding LP and 245 Corp. shall be distributed on account of
such Allowed Priority Non-Tax Claim a payment in Cash equal to the amount
of its Allowed Priority Non-Tax Claim.
15.2. Secured Club Loan Claims Against 245 Holding LP
and 245 Corp. (Consolidated 245 Class 2).
On the Effective Date and in accordance with the Restructuring
Transactions, the New Club Loan Disbursing Agent shall be distributed, on
account of the Allowed Secured Club Loan Claims against 245 Holding LP and
245 Corp., Class A Interests having a value equal to the lesser of (a) the
Allowed Club Loan Claims and (b) the value on the Confirmation Date of the
Collateral securing the Allowed Club Loan Claims pledged by 245 Holding LP
and 245 Corp. In accordance with this section 15.2 and sections 7.2, 8.2
and 14.2 hereof and without duplication, the Disbursing Agent shall be
distributed, in the aggregate and in full satisfaction of the Allowed Club
Loan Claims, Class A Interests having a value equal to the lesser of (a)
the Allowed Club Loan Claims and (b) the value on the
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Confirmation Date of the Collateral securing the Allowed Club Loan Claims
pledged by any Debtor under this Plan.
15.3. Secured Aetna Mortgage Loan Claims
Against 245 Park Co. (Consolidated 245 Class 3).
On the Effective Date, in full satisfaction of the Allowed Aetna
Mortgage Loan Claims, the Aetna Restructured Mortgage Loan Documents shall
be executed and delivered to Aetna, which shall provide for the following:
Components of Initial
Loan Balance: Subject to the section below
captioned "Failure of Closing
to Occur by January 31, 1997",
the amount of the Aetna
Restructured Mortgage Loan, as
of September 30, 1996
(exclusive of the Additional
Payments to be paid to Aetna
as described below), shall be
$202,430,717, comprising the
following components:
Principal: $190,680,717 (the
"Principal Component"), as of
September 30, 1996.
Default Interest: $11,750,000
(the "Default Interest
Component").
Interest Rate: The Principal Component shall
bear interest at a fixed rate
per annum equal to the
mortgage equivalent of the per
annum yield, as of the
Effective Date, of a U.S.
Treasury security maturing on
or about 10 years from the
Effective Date, plus 250 basis
points.
The Default Interest
Component shall bear
interest at a fixed rate
per annum equal to seven
percent (7%).
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Term: 10 years from the Effective
Date.
Payments; Amortization: Monthly payments of interest
only in respect of the
Principal Component shall be
payable in years 1 through 3
of the Aetna Restructured
Mortgage Loan. Monthly
payments of principal and
interest on the Principal
Component shall be payable in
years 4 through maturity of
the Aetna Restructured
Mortgage Loan based on a 30-
year amortization schedule.
Interest on the Default
Interest Component shall be
payable currently on a
monthly basis. The
outstanding principal
balance of the Aetna
Restructured Mortgage Loan
shall be payable at
maturity. No prepayments of
principal in respect of the
Default Interest Component
shall be required.
Late debt service payments
and late payments or
deposits to the 245 Reserve
Account and to the Tax
Escrow (as defined below)
(with respect to late
payments or deposits to the
245 Reserve Account, only
to the extent cash flow is
sufficient to require such
payments or deposits),
shall be subject to a 6%
late charge. Upon default
as well as after maturity,
the Principal Component
shall bear interest at a
rate equal to six
percentage points above the
regular contract rate in
respect of the Principal
Component and the Default
Interest Component shall
bear
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interest at the rate of 13%
per annum.
Collateral: The Aetna Restructured
Mortgage Loan and that portion
of the Additional Payments (as
defined herein) not paid on
the Effective Date shall be
secured by a first-priority
lien on and security interest
in 245 Park Avenue and the 245
Accounts (as defined below)
referred to in "Cash
Management; Reserves;
Budgets."
Additional Payments: In addition to the Principal
Component and the Default
Interest Component, New 245
Park LP shall make the
following payments (the
"Additional Payments") to
Aetna:
$2,000,000, payable in Cash on
the Effective Date, as an
extension fee.
$5,000,000, payable in Cash on
the Effective Date, in respect
of default interest.
$2,000,000 payable in Cash
(without interest) on
January 2, 1998 in respect
of default interest. New
245 Park LP will pay to
Aetna interest at the rate
of thirteen percent per
annum (13%) on such
$2,000,00 payment from and
after January 2, 1998 in
the event that such payment
is not made to Aetna on or
before January 2, 1998.
A sum equal to Aetna's
reasonable fees and
expenses, including,
without limitation,
attorneys' fees,
consultants'
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fees and experts' fees
incurred through and
including the Effective
Date, in connection with
the Reorganization Cases
and the protection and
enforcement of Aetna's
rights under its loan
documents, payable in Cash
on the Effective Date,
which sum (exclusive of
title insurance premiums
and charges, filing and
recording fees and expenses
and other standard and
customary closing costs,
all of which shall be paid
by New 245 Park LP on the
Effective Date) shall not
exceed $650,000, provided
that the Effective Date
occurs on or before October
31, 1996.
Payments prior to
Effective Date: Prior to the Effective Date,
monthly payments shall
continue to be paid to Aetna
in an amount and at the time
prescribed by the "Final
Stipulation and Consent Order
Conditioning 245 Park Avenue's
Use of Rents and Providing
Adequate Protection of the
Respective Interests of Aetna
Life Insurance Company and The
Dai-Ichi Kangyo Bank, Limited,
New York Branch" entered by
the Bankruptcy Court on or
about May 13, 1996 (the "245
Cash Collateral Order").
Failure of Closing to
Occur by January 31, 1997: In the event that the
Effective date does not occur
on or before January 31, 1997,
(i) on each of March 1, 1997,
April 1, 1997, May 1, 1997,
June 1, 1997 and July 1, 1997,
the Default Interest Component
of the Aetna Restructured
Mortgage Loan shall increase
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by a sum equal to $450,000
(individually, an
"Earn-back Amount" and,
collectively, the
"Earn-Back Amounts"), in
the event that the
Effective Date shall not
have occurred during the
immediately preceding
calendar month, provided,
however, if the Effective
Date shall have occurred
during such immediately
preceding calendar month, a
proportionate amount of the
Earn-back Amount allocable
to such month shall be
added to the Default
Interest Component as of
the Effective Date, and
(ii) on and after February
1, 1997, and continuing
through and including the
Effective Date, the
Principal Component of the
Aetna Restructured Mortgage
Loan shall accrue interest
at a rate equal to eighteen
percent (18%) per annum,
provided, however, that
interest (and amortization)
in respect of the Principal
Component shall continue to
be paid in accordance with
the provisions of the 245
Cash Collateral Order.
Any and all Earn-back
Amounts added to the
Default Interest Component
pursuant to the provisions
of this section shall not
bear interest prior to the
Effective Date.
The difference between
interest that accrues on
the Principal Component at
the rate of eighteen
percent (18%) per annum
during the period from
February 1, 1997 through
and including the Effective
Date and interest that is
paid on the Principal
Component in
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respect of such period
shall be added to the
Default Interest Component,
provided, however, that
such difference shall not
itself bear interest prior
to the Effective Date.
Prepayment: The Aetna Restructured
Mortgage Loan shall be
prepayable, in whole but not
in part, at any time after the
Effective Date, together with
a yield maintenance fee
described herein; provided,
however, that during the six-
month period immediately
preceding the maturity of the
Aetna Restructured Mortgage
Loan, the Aetna Restructured
Mortgage Loan shall be open to
prepayment, in whole but not
in part, at par.
The yield maintenance fee
payable to Aetna shall be
determined on a present
value basis, based upon an
assumed reinvestment rate
derived from the yield of
U.S. Treasury securities
having a maturity most
closely comparable to the
remaining term of the Aetna
Restructured Mortgage Loan
at the time of prepayment,
plus (i) in the event of
prepayment during the
period from the Effective
Date through and including
a date that is 18 months
prior to the maturity, 50
basis points, and (ii) in
the event of prepayment
during the period between
the date that is 18 months
prior to maturity, through
and including the date that
is six months prior to
maturity, 100 basis points.
Cash Management; Reserves;
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Budgets: On the Effective Date, there
shall be established (i) a
lockbox account, (ii) a
disbursement account, (iii) a
tax account (the "Tax
Escrow"), (iv) a security
deposit account and (v) a
capital reserve account (the
"245 Reserve Account" and,
together with the
aforementioned accounts, the
"245 Accounts").
Notwithstanding any other
provision hereof, an initial
deposit of not less than
$20,000,000 or such lesser
amount as shall be agreed to
by Aetna and DKB (each in its
sole and absolute discretion)
(such $20,000,000 amount to be
inclusive of all amounts in
escrow accounts which fund
leasing obligations of 245
Park Co. under leases existing
as of the Effective Date) will
fund the 245 Reserve Account.
The funds on deposit from time
to time in the 245 Reserve
Account may be used (i) to
pay, or reimburse the costs
of, tenant improvements and
capital improvements
(including any such
improvements performed prior
to the Effective Date), (ii)
to pay the $2 million
amortization payment owing to
Aetna on January 2, 1998 and
(iii) to pay real estate taxes
(in the case of real estate
taxes, solely to the extent
that the Tax Escrow is
insufficient at any time to
fund payment of accrued and
unpaid real estate taxes).
All other Cash and other
liquid assets of 245 Park
Avenue (if any and whether
held by 245 Park Co. or any
-131-
mortgagee) remaining after
funding such $20,000,000
and making any other
payments required to be
made by 245 Park Co. under
the Plan on the Effective
Date shall be deposited in
the 245 Reserve Account or
such other 245 Account
agreed to by and among
Aetna, DKB and 245 Park Co.
The 245 Reserve Account
shall be increased by
deposits of funds generated
by 245 Park Avenue. Certain
amounts held in the 245
Reserve Account may be
available to pay, subject
to certain conditions,
optional amortization of
the DKB Restructured
Mortgage Loan. In addition,
the Tax Escrow shall be
established for the payment
of taxes and other
impositions assessed
against 245 Park Avenue. In
the event the Effective
Date occurs prior to
January 1, 1997, the Tax
Escrow shall be funded
during 1996 with monthly
deposits totalling, in
aggregate, $7,500,000 from
the Effective Date through
December 31, 1996. In the
event that the Effective
Date occurs on or after
January 1, 1997, 245 Park
Co. shall pay when due in
January 1997 any real
estate taxes relating to
245 Park Avenue and,
thereafter, shall reserve
in the Tax Escrow on a
monthly basis an amount
equal to one-twelfth of the
estimated real estate taxes
due on 245 Park Avenue for
the 1997 calendar year.
No dispositions of income from
245 Park Avenue shall be
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allowed other than in
accordance with operating
and capital budgets
approved by Aetna and DKB
or otherwise in accordance
with a Cash Management
Agreement to be agreed upon
by Aetna, New 245 Park LP
and DKB.
Cash Flow Priority: Net cash flow from the
operations of 245 Park Avenue
after payment of operating
expenses (including the
property management fees
described below), and real
estate taxes shall be
allocated according to the
following priority:
a. To the 245 Park Senior
Lender to pay
interest and
principal on the
Aetna Restructured
Mortgage Loan.
b. To DKB to pay interest on
the DKB Restructured
Mortgage Loan.
c. To DKB to pay the
following First-Tier
Junior Indebtedness
Amortization payments:
First-Tier Junior
Indebtedness
Year Amortization
---- ------------
1999 5,000,000
2000 5,000,000
2001 5,000,000
2002 5,000,000
----- -----------
Total $20,000,000
d. To the 245 Reserve
Account to fund the
following reserve
payments for leasing,
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capital and other costs
at 245 Park Avenue:
Reserve
Year Funding
---- -------
1997 13,000,000
1998 15,000,000
1999 20,500,000
2000 14,000,000
2001 14,500,000
2002 18,500,000
----- ----------
Total $95,500,000
After 2002, funding of the
Reserve Account shall be
determined by agreement of
Aetna, DKB and New 245
Park LP. If such agreement
cannot be achieved within
a prescribed time, the
matter will be submitted
to binding arbitration in
accordance with a
procedure to be set forth
in the Cash Management
Agreement.
At the request of Aetna,
DKB and/or New 245 Park
LP, the foregoing
projected reserve funding
schedule may be adjusted
upward or downward from
time to time to assure
sufficient (but not
excessive) funding of
actual or reasonably
projected leasing costs,
capital expenditures or
other items agreed to by
and among Aetna, DKB and
245 Park Co. payable from
the 245 Reserve Account;
provided, however, that
disagreements among the
245 Park Senior Lender,
DKB and New 245 Park LP
with respect to the proper
amount of such reserve
funding will be submitted
to binding arbitration in
accordance with
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a procedure to be set
forth in the Cash
Management Agreement.
e. To pay the owners of
New 245 Park LP or
their designee the
asset management fees
and leasing
commissions set forth
below under
"Management Fees and
Leasing Commissions."
f. To DKB to pay the
balance of the
following Second-
Tier Junior
Indebtedness
Amortization after
taking into account
the payment of the
First-Tier Junior
Indebtedness
Amortization in
Priority c:
Second-Tier Junior
Indebtedness Year
Amortization
Year
1999 $13,500,000
2000 $13,500,000
2001 $13,500,000
2002 $13,500,000
----- -----------
Total $54,000,000
g. To the 245 Reserve
Account through
December 31, 2002 (or,
at the request of New
245 Park LP, to DKB to
amortize the DKB
Restructured
Mortgage Loan). From
and after January 1,
2003, to amortize the
DKB Restructured
Mortgage Loan in
accordance with the
terms of "Extension
Option" in section
15.4 of the Plan.
From and after the
date of payment in
full of the DKB
Restructured Mortgage
-135-
Loan, to New 245
Park LP or its
designee.
To the extent cash flow
from 245 Park Avenue or
from reserves is
insufficient in any period
to make all payments
provided for in subsections
d. through g. above, New
245 Park LP shall have no
obligation to make or fund
such payments at such time
and unpaid amounts thereof
will be accrued and paid
during the next period
after all expenses for
higher priorities have been
paid. Lower priority
expenses will only be paid
after all higher priority
expenses have been paid in
full.
Restrictions on Transfer: Restrictions on transfer or
encumbrances of 245 Park
Avenue or of interests in New
245 Park LP shall be agreed
upon in writing by New 245
Park LP and Aetna.
Subordinate Financing: The DKB Restructured Mortgage
Loan will be restructured in
accordance with section 15.4
hereof. No additional
subordinate financing shall be
permitted, except that the DKB
Restructured Mortgage Loan may
be refinanced under certain
conditions to be set forth in
the Aetna Restructured
Mortgage Loan Documents and
the Cash Management Agreement.
Management Fees and
Leasing Commissions: Newco LP or its designee will
provide both property
management and asset
management services to New 245
Park LP and will be
compensated out of cash flow
-136-
as follows: (i) a property
management fee equal to 2%
of collected gross revenues
from existing leases and 1%
of collected gross revenues
from all leases executed
after the Effective Date;
(ii) an annual asset
management fee equal to .5%
of Gross Asset Value in
years 1 and 2 and .35% of
Gross Asset Value
thereafter; and (iii)
leasing commissions for
leasing transactions equal
to (a) a full standard
commission (at market
rates) for leasing
transactions if the tenant
is not represented by an
outside broker and (b) a
50% override on commissions
paid to outside brokers.
Consent to Use Cash
Collateral: Aetna shall consent to the use
of its Cash Collateral to fund
the payments described in
"Other Costs" below (but only
to the extent provided
therein), and the
distributions to the holders
of Administrative Expense
Claims, Allowed Priority Tax
Claims, Allowed Priority Non-
Tax Claims, Allowed Aetna
Mortgage Loan Claims, Allowed
DKB Mortgage Loan Claims and
Allowed General Unsecured
Claims in accordance with
sections 5.1, 15.1, 5.2, 15.3,
15.4, and 15.7 hereof;
provided, however, that none
of Aetna's Cash Collateral
shall be used to fund any such
Claims that are not Claims
against 245 Park Co., 245
Holding LP and/or 245 Corp.
Other Costs: On the Effective Date, New 245
Park LP may pay legal fees of
counsel to JMB in an amount
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not exceeding $375,000;
provided, that the sum of
such payment plus the
aggregate amount of all
transaction costs incurred
in respect of closing of
the DKB Restructured
Mortgage Loan and the Aetna
Restructured Mortgage Loan
shall not exceed
$12,000,000.
Audit and Inspections: Prior to the Effective Date,
Aetna shall have the
opportunity to conduct a
financial audit of 245 Park
Co. and engineering studies
and inspections of 245 Park
Avenue.
Recourse: Nonrecourse subject to
customary exceptions,
including fraud or other
misconduct.
Bankruptcy Remote: Bankruptcy remote structure in
accordance with section 18.6.3
hereof. Without limiting the
generality of the foregoing,
such bankruptcy-remote
structure shall provide for
indemnification (to the extent
lawful) of any designee of
Aetna (in his/her individual
capacity as a director)
serving as a director of an
entity integral to such
bankruptcy-remote structure.
The Restructured Aetna
Mortgage Loan Documents shall
contain such other bankruptcy
protections, if any, as 245
Park Co. and Aetna may
expressly agree upon in
writing.
On the Effective Date, the Aetna Mortgage Loan and any Claims
otherwise arising under or related to the Aetna Mortgage Loan or any of the
guarantees, mortgages or security interests issued in connection therewith
shall be
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released and cancelled in consideration of the Aetna Restructured Mortgage
Loan.
15.4. Secured DKB Mortgage Loan Claims
Against 245 Park Co. (Consolidated 245 Class 4).
-----------------------------------------------
On the Effective Date, in full satisfaction of the Allowed DKB
Mortgage Loan Claims, the DKB Restructured Mortgage Loan Documents shall be
executed and delivered to DKB, which shall provide for the following:
Initial Paydown: DKB shall be repaid
$103,500,000 of principal on
the Effective Date.
Initial Loan Balance: After paydown, $89,000,000.
Settlement Fee: A Settlement Fee shall be paid
to DKB on the Effective Date
in the amount of $1,600,000.
Interest Rate: DKB's fixed rate cost of funds
plus 175 basis points, per
annum. Interest shall be paid
monthly, in arrears.
Maturity Date: December 31, 2002.
Amortization: DKB shall receive annual
amortization payments in
accordance with "Cash Flow
Priority" below. The payments
shall consist of First-Tier
Junior Indebtedness
Amortization and Second-Tier
Junior Indebtedness
Amortization to be paid out of
available cash flow as
follows:
Second-Tier First-Tier
Junior Junior
Indebtedness Indebtedness
Year Amortization Amortization
1999 $13,500,000 $ 5,000,000
2000 13,500,000 5,000,000
2001 13,500,000 5,000,000
2002 13,500,000 5,000,000
----------- -----------
-139-
Total $54,000,000 $20,000,000
Late Payments: Late debt service payments and
late payments or deposits to
the 245 Reserve Account and to
the Tax Escrow (with respect
to late payments or deposits
to the 245 Reserve Account,
only to the extent cash flow
is sufficient to require such
payments or deposit) shall be
subject to a 6% late charge.
Upon default as well as after
maturity of the DKB
Restructured Mortgage Loan,
the DKB Restructured Mortgage
Loan shall bear interest at a
rate of 6 percentage points
above the non-default contract
rate of interest under the DKB
Restructured Mortgage Loan.
Extension Option: New 245 Park Co. shall have
the option at the maturity of
the DKB Restructured Mortgage
Loan to extend the maturity of
the unamortized balance
thereof (not to exceed $50
million) for an additional 4-
year term (i.e., upon exercise
of such option by New 245 Park
Co., the extended maturity of
the DKB Restructured Mortgage
Loan would be coterminous with
the Aetna Restructured
Mortgage Loan). The DKB
Restructured Mortgage Loan as
so extended will be amortized
with net cash flow after
payment or funding of:
a. real estate taxes and
appropriate reserves
therefor;
b. operating expenses of
245 Park Avenue
(including the
property management
fees described in the
-140-
"Management Fees and
Leasing Commissions"
below);
c. interest and principal
on the Aetna
Restructured
Mortgage Loan to the
245 Park Senior Lender;
d. interest on the DKB
Restructured Mortgage
Loan to DKB;
e. capital, leasing and
other costs at the
property and
appropriate reserves
therefor;
f. asset management fees
and leasing commissions
payable to the owners
of New 245 Park LP or
their designee as
described in
"Management Fees and
Leasing Commissions"
below.
Collateral: Second, third and fourth
mortgages (with related
assignments of rents and
leases and security
agreements) relating to 245
Park Avenue will be
consolidated into a second
mortgage (with related
assignments of rents and
leases and security
agreements) on the Effective
Date.
245 Park Senior
Loan: The DKB Restructured Mortgage
Loan will be subordinate to a
first mortgage loan with a
term of 10 years. The
combined balance of the first
and second mortgage loan will
not exceed $300,000,000. To
the extent that as of the
-141-
Effective Date (but not
thereafter) the Aetna
Restructured Mortgage Loan
exceeds $211,000,000, the
DKB Restructured Mortgage
Loan will be reduced on a
dollar for dollar basis.
The amortization schedule
of the DKB Restructured
Mortgage Loan will then be
adjusted on a pro rata
basis.
Remedies: The DKB Restructured Mortgage
Loan will be subordinate to
the 245 Park Senior Loan. The
terms of such subordination
will be set forth in a
subordination agreement to be
agreed to by and among DKB,
Aetna and New 245 Park LP,
which agreement shall provide,
among other things, for the
right of DKB (a) to exercise
remedies in the event of the
occurrence of certain material
events of default and (b) to
cure defaults under the Aetna
Restructured Mortgage Loan in
certain circumstances.
Cash Management; Reserves;
Budgets: On the Effective Date, there
shall be established (i) a
lockbox account, (ii) a
disbursement account, (iii)
the Tax Escrow, (iv) a
security deposit account and
(v) the 245 Reserve Account.
Notwithstanding any other
provision hereof, an initial
deposit of not less than
$20,000,000 or such lesser
amount as shall be agreed to
by Aetna and DKB (each in its
sole and absolute discretion)
(such $20,000,000 or lesser
amount to be inclusive of all
amounts in escrow accounts
which fund leasing obligations
-142-
of 245 Park Co. under
leases existing as of the
Effective Date) will fund
the 245 Reserve Account.
The funds on deposit from
time to time in the 245
Reserve Account may be used
(i) to pay, or reimburse
the costs of, tenant
improvements and capital
improvements (including any
such improvements performed
prior to the Effective
Date), (ii) to pay the $2
million amortization
payment owing to Aetna on
January 2, 1998 and (iii)
to pay real estate taxes
(in the case of real estate
taxes, solely to the extent
that the Tax Escrow is
insufficient at any time to
fund payment of accrued and
unpaid real estate taxes).
All other Cash and other
liquid assets of 245 Park
Avenue (if any and whether
held by 245 Park Co. or any
mortgagee) remaining after
funding such $20,000,000
and making any other
payments required to be
made by 245 Park Co. under
the Plan on the Effective
Date shall be deposited in
the 245 Reserve Account or
such other 245 Account
agreed to by and among
Aetna, DKB and 245 Park Co.
Except as provided in the
next sentence, 245 Park Co.
shall represent on the
Effective Date that, as of
such date and to the best
of the knowledge of 245
Park Co., no Cash owned by
245 Park Co. has been
disbursed other than to pay
amounts owing to DKB and
Aetna, respectively, and
other amounts contemplated
in the Plan or in
accordance with the 245
Cash Collateral Order from
-143-
the date of approval of
such Cash Collateral Order
through the Effective Date.
Such representation shall
be subject to such
exceptions as are
reasonably acceptable to
Aetna and DKB and such
representation shall not
survive the Effective Date.
The 245 Reserve Account
shall be increased by
deposits of funds generated
by 245 Park Avenue. Certain
amounts held in the 245
Reserve Account may be
available to pay, subject
to certain conditions,
optional amortization of
the DKB Restructured
Mortgage Loan. In addition,
the Tax Escrow shall be
established for the payment
of taxes and other
impositions assessed
against 245 Park Avenue. In
the event the Effective
Date occurs prior to
January 1, 1997, the Tax
Escrow shall be funded
during 1996 with monthly
deposits totalling, in
aggregate, $7,500,000 from
the Effective Date through
December 31, 1996. In the
event that the Effective
Date occurs on or after
January 1, 1997, 245 Park
Co. shall pay when due in
January 1997 any real
estate taxes relating to
245 Park Avenue and,
thereafter, shall reserve
in the Tax Escrow on a
monthly basis an amount
equal to one-twelfth of the
estimated real estate taxes
due on 245 Park Avenue for
the 1997 calendar year.
No dispositions of income from
245 Park Avenue shall be
allowed other than in
-144-
accordance with operating
and capital budgets
approved by Aetna and DKB
or otherwise in accordance
with a Cash Management
Agreement to be agreed upon
by Aetna, New 245 Park LP
and DKB.
Cash Flow Priority: Net cash flow from the
operations of 245 Park Avenue
after payment of operating
expenses (including the
property management fees
described below), and real
estate taxes shall be
allocated according to the
following priority:
a. To the 245 Park Senior
Lender to pay
interest and
principal on the
Aetna Restructured
Mortgage Loan.
b. To DKB to pay interest
on
the DKB Restructured
Mortgage Loan.
c. To DKB to pay the
following First-Tier
Junior Indebtedness
Amortization payments:
First-Tier Junior
Indebtedness
Year Amortization
1999 5,000,000
2000 5,000,000
2001 5,000,000
2002 5,000,000
-----------
Total $20,000,000
d. To the 245 Reserve
Account to fund the
following reserve
payments for leasing,
capital and other costs
at 245 Park Avenue:
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Reserve
Year Funding
1997 13,000,000
1998 15,000,000
1999 20,500,000
2000 14,000,000
2001 14,500,000
2002 18,500,000
-----------
Total $95,500,000
After 2002, funding of the
Reserve Account shall be
determined by agreement of
Aetna, DKB and New 245 Park
LP. If such agreement
cannot be achieved within a
prescribed time, the matter
will be submitted to
binding arbitration in
accordance with a procedure
to be set forth in the Cash
Management Agreement.
At the request of Aetna,
DKB and/or New 245 Park LP,
the foregoing projected
reserve funding schedule
may be adjusted upward or
downward from time to time
to assure sufficient (but
not excessive) funding of
actual or reasonably
projected leasing costs,
capital expenditures or
other items agreed to by
and among Aetna, DKB and
245 Park Co. payable from
the 245 Reserve Account;
provided, however, that
disagreements among the 245
Park Senior Lender, DKB and
New 245 Park LP with
respect to the proper
amount of such reserve
funding will be submitted
to binding arbitration in
accordance with a procedure
to be set forth in the Cash
Management Agreement.
-146-
e. To pay the owners of
New 245 Park LP or
their designee the
asset management fees
and leasing commissions
set forth below under
"Management Fees and
Leasing Commissions."
f. To DKB to pay the
balance of the
following Second-Tier
Junior Indebtedness
Amortization after
taking into account the
payment of the
First-Tier Junior
Indebtedness
Amortization
in Priority c:
Second-Tier
Junior
Indebtedness
Year Amortization
1999 $13,500,000
2000 13,500,000
2001 13,500,000
2002 13,500,000
-----------
Total $54,000,000
g. To the 245 Reserve
Account through
December 31, 2002 (or,
at the request of New
245 Park LP, to DKB to
amortize the DKB
Restructured Mortgage
Loan). From and
after January 1, 2003,
to amortize the DKB
Restructured Mortgage
Loan in accordance with
the terms of "Extension
Option" in section 15.4
of the Plan. From and
after the date of
payment in full of the
DKB Restructured
Mortgage Loan, to New
245 Park LP
or its designee.
-147-
To the extent cash flow
from 245 Park Avenue or
from reserves is
insufficient in any period
to make all payments
provided for in subsections
d. through g. above, New
245 Park LP shall have no
obligation to make or fund
such payments at such time
and unpaid amounts thereof
will be accrued and paid
during the next period
after all expenses for
higher priorities have been
paid. Lower priority
expenses will only be paid
after all higher priority
expenses have been paid in
full.
Subordinate
Financing: No additional financing
subordinate to the DKB
Restructured Mortgage Loan
shall be permitted.
Management Fees and
Leasing Commissions: Newco LP or its designee will
provide both property
management and asset
management services to New 245
Park LP and will be
compensated out of cash flow
as follows: (i) a property
management fee equal to 2% of
collected gross revenues from
existing leases and 1% of
collected gross revenues from
all leases signed in the
future; (ii) an annual asset
management fee equal to .5% of
Gross Asset Value in years 1
and 2 and .35% of Gross Asset
Value thereafter; and (iii)
leasing commissions for
leasing transactions equal to
(a) a full standard commission
(at market rates) for leasing
transactions if the tenant is
not represented by an outside
-148-
broker and (b) a 50% override
on commissions paid to outside
brokers.
Prepayment Option: New 245 Park LP shall pay to
DKB (a) the actual cost of
unwinding interest rate swaps
or other similar contracts to
be entered into by DKB (and/or
its participants and
affiliates) with a third party
as of the Effective Date under
which fixed amounts are paid
equal to DKB's fixed rate cost
of funds underlying the DKB
Restructured Mortgage Loan
(and LIBOR is received), and
(ii) any other actual breakage
costs incurred by DKB (and/or
its participants and
affiliates); but New 245 Park
LP shall be entitled to a
prepayment discount to the
extent of any termination
payment DKB (and/or its
participants and affiliates)
receives as a result of an
unwind of such swaps or
similar contracts upon
prepayment.
DKB's Fees and
Costs: On or before the Effective
Date, New 245 Park LP shall
pay DKB's reasonable fees and
expenses incurred in
connection with the
Reorganization Cases,
including, without limitation,
attorneys' fees, title
insurance premiums and
charges, filing and recording
fees and expenses, other
standard and customary closing
costs, consultants' and
experts' fees, financial audit
fees, and expenses of
engineering and environmental
studies and inspections of 245
-149-
Park Avenue, subject to the
terms of "Financial Audit"
below; provided, however,
that the fees of attorneys,
consultants and experts
(excluding those already
paid by 245 Park Co. prior
to September 12, 1996)
through October 31, 1996,
financial audit fees of 245
Park Co., and expenses of
engineering and
environmental studies and
inspections of 245 Park
Avenue, shall not, in the
aggregate, exceed $500,000.
Financial Audit: DKB shall be entitled to
perform a financial audit of
245 Park Co. and to conduct
engineering and environmental
studies and inspections of 245
Park Avenue prior to the
Effective Date; provided,
however, that, without
limiting the foregoing, DKB
shall endeavor in good faith
to enter into an agreement
with Aetna and 245 Park Co. to
coordinate the work associated
with any such financial audit
or studies and inspections and
for the sharing of work
product relating thereto, all
for the purpose of avoiding
duplicative expense.
Payments prior to
Effective Date: Prior to the Effective Date,
monthly payments shall
continue to be paid to DKB in
an amount and at the time
prescribed by the 245 Cash
Collateral Order.
Restrictions on Transfer: Restrictions on transfer or
encumbrances of 245 Park
Avenue or of interests in New
245 Park LP shall be agreed
-150-
upon in writing by New 245
Park LP and DKB.
Consent to Use
of Cash Collateral: DKB shall consent to the use
of its Cash Collateral to fund
the payments described in
"Other Costs" below (but only
to the extent provided
therein), and the
distributions to the holders
of Administrative Expense
Claims, Allowed Priority Tax
Claims, Allowed Priority Non-
Tax Claims, Allowed Aetna
Mortgage Loan Claims, Allowed
DKB Mortgage Loan Claims and
Allowed General Unsecured
Claims in accordance with
sections 5.1, 5.2, 15.1, 15.2,
15.3 and 15.7 hereof.
Other Costs: On the Effective Date, New 245
Park LP may pay legal fees of
counsel to JMB in an amount
not exceeding $375,000;
provided, that the sum of such
payment plus the aggregate
amount of all transaction
costs incurred in respect of
closing of the DKB
Restructured Mortgage Loan and
the Aetna Restructured
Mortgage Loan shall not exceed
$12,000,000.
On the Effective Date, the DKB Mortgage Loan and any Claim under
or relating to the DKB Mortgage Loan or any of the guarantees, mortgages or
security interests issued in connection therewith shall be released and
cancelled in consideration of the DKB Restructured Mortgage Loan.
15.5. Club Loan/245 Park Deficiency Claims Against 245
Holding LP and 245 Corp. (Consolidated 245 Class 5).
On the Effective Date, in full satisfaction of the Allowed
Deficiency Claims of the holders of the Allowed Club Loan Claims against
245 Holding LP and 245 Corp., the New Club Loan Disbursing Agent shall
receive the distributions
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provided to the New Club Loan Disbursing Agent (for the benefit of those
Co-Proponents for which it is agent) in accordance with sections 7.2, 8.2,
14.2 and 15.2 hereof.
15.6. Insured Claims Against
245 Park Co., 245 Holding LP and
245 Corp. (Consolidated 245 Class 6).
On the Effective Date, each holder of an Insured Claim against
any of 245 Park Co., 245 Holding LP and 245 Corp. shall only be entitled to
maintain actions against and obtain payment solely from an insurance
company under an insurance policy or policies issued by such company to, or
for the benefit of, any of 245 Park Co., 245 Holding LP and 245 Corp.
15.7. General Unsecured Claims Against
245 Park Co., 245 Holding LP and
245 Corp. (Consolidated 245 Class 7).
On the Effective Date, in full satisfaction of the Allowed
General Unsecured Claims against 245 Park Co., each holder of an Allowed
General Unsecured Claim against 245 Park Co., 245 Holding LP and 245 Corp.
will be distributed a Cash payment equal to the amount of such Allowed
General Unsecured Claim against 245 Park Co., 245 Holding LP and 245 Corp.
15.8. Equity Interests in 245 Park Co., 245 Holding LP
Co. and 245 Corp. (Consolidated 245 Class 8).
15.8.1. Equity Interests of JMB in 245 Park Co.
--------------------------------------
On the Effective Date, in accordance with the Restructuring
Transactions, JMB shall retain its general partner interest in 245 Park Co.
and, after taking into account the transactions effected by this Plan, 245
Park Co. will become 245 Holding LP. On the Effective Date, JMB, through
245 Holding LP, shall receive, in full satisfaction of 245 Park Co.'s
Equity Interest in 245 Park Avenue, distributions in accordance with this
section 15.8.1.
JMB Distribution: JMB, through
245 Holding LP, shall roll
up its interest in 245 Park
Avenue for:
(1) on the Effective Date,
indirect Class A Interests in
Newco LP having a value equal
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to the greater of (a) the
Newco LP Reorganization Value
multiplied by 5.44% and
(b) $30,000,000; plus
(2) that percentage of
Class B Interests (that
otherwise would be
distributed to the
Co-Proponents) determined
as follows:
if the Newco LP
Reorganization Value as of
the Confirmation Date is
greater than $551,000,000,
then 5.44% of the Class B
Interests on the Effective
Date; or
if the Newco Reorganization
Value as of the
Confirmation Date is less
than $551,000,000, then no
Class B Interests on the
Effective Date but
thereafter, if and at such
time as (a) $551,000,000
minus (b) the sum of (i)
the Newco LP Reorganization
Value as of the
Confirmation Date, and (ii)
the dollar amounts of the
Net SF Cash and Net MCJV
Proceeds converted into
Class A Interests in
accordance with section
18.1.1, is less than zero,
then 5.44% of the Class B
Interests.
Dilutive Events: In determining JMB's
distributions pursuant to the
preceding subsection of this
section 15.8.1, JMB's
interests shall be diluted to
the extent required to reflect
any transactions from and
after the Effective Date
(other than the contributions
arising from the conversion of
Class B Interests into Class A
Interests, the dilutive effect
of which has been taken into
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account in the immediately
preceding paragraph) having
a dilutive effect on
outstanding Class A
Interests.
JMB Consent to
Waiver of Tower B
Condition: The condition precedent to the
Effective Date set forth in
section 22.2.3 hereof may only
be waived by the Debtors and
the Co-Proponents with the
consent of JMB.
Exchange Rights: From and after the Effective
Date, JMB shall have the right
to exchange its Equity
Interest in 245 Holding LP for
Class A Interests which would
have had a value (based on the
value of such interests as of
the Confirmation Date as
determined by the Bankruptcy
Court), in the aggregate,
equal to the value as of the
Confirmation Date of such 245
Holding LP interests, subject
to the restrictions on
transfer described in section
18.13 hereof.
Newco LP Equity
Interests: In the event of a public
offering and sale of Class A
Interests after the Effective
Date, JMB will receive notice
of such public offering and
sale and will be provided an
opportunity to exchange its
interest in 245 Holding LP for
Class A Interests, and if JMB
does so exchange its
interests, JMB shall be
provided the same "piggyback"
registration rights with
respect to its Class A
Interests as those provided to
the Co-Proponents on account
of their Class A Interests.
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JMB shall be provided tag-
along rights in accordance
with section 18.13 hereof.
In the event JMB or any
Affiliate thereof seeks to
sell its direct or indirect
Equity Interests in Newco
LP to a bona fide
purchaser, then each of the
Co-Proponents shall be
entitled to a right of
first offer which shall
enable such Entities to
purchase such Equity
Interests from JMB pro rata
on terms offered by JMB. If
the Co-Proponents, either
singly or collectively, do
not elect to purchase all
of the Equity Interests
offered by JMB within
thirty (30) days of such
offer, JMB shall have the
right for ninety (90) days
thereafter to sell all of
such interests to any party
provided that the sale
price shall be at least 95%
of the per interest price
offered to the
Co-Proponents.
JMB/245 Park
Member Option: JMB shall have the right to
elect the JMB/245 Park Member
Option if one or both of the
JMB/245 Conditions are not
true on the Effective Date.
Notwithstanding the foregoing,
JMB shall be required to
inform the O&Y Affiliates
prior to the thirtieth (30th)
day after the Confirmation
Date whether it will elect the
JMB/245 Park Member Option if
one or both of the JMB/245
Conditions are not satisfied
on the Effective Date.
Under the JMB/245 Park Member
Option, JMB shall exchange its
general partner interest in
245 Park Co. for a general
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partner interest in New 245
Park LP in a percentage
adjusted in a manner to be
agreed upon to reflect the
improved capital structure
of New 245 Park LP as a
result of implementing this
Plan, in all events subject
to fixed loan and
preference amounts in the
aggregate amount of
$110,000,000 (plus interest
from and after June 30,
1996) in favor of Newco LP,
which $110,000,000 will be
allocated between loan and
preference amounts in the
same proportion as existing
under the 245 Park Co.
partnership agreement on
the Effective Date. The
loan amount will mature on
December 31, 2004. Both the
loan and preference amounts
will accrue interest at a
fixed rate equal to the
blended fixed rate to be
paid on the Aetna
Restructured Mortgage Loan
and the DKB Restructured
Mortgage Loan or on any
replacement financing. In
all events, Newco LP or its
designee shall be the
managing agent of New 245
Park LP with such rights as
are contained in the
partnership agreement for
245 Park Co. (but without
giving effect to JMB's
rights under its consent to
the Club Loan).
Sale of the 245
Park Property: New 245 Park LP, as the
successor to title of 245 Park
Avenue, shall be prohibited
from selling, and the partners
in New 245 Park LP shall be
prohibited from causing the
sale or other transfer of, 245
Park Avenue prior to January
2, 2000 without the prior
consent of JMB, except that
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(a) JMB's consent shall not
be required for any such
sale in the event that such
sale or transfer shall be
either (i) an involuntary
sale or transfer, including
pursuant to a foreclosure,
or (ii) a sale occurring on
an emergency basis, the
nature of such emergency
basis to be agreed upon in
the definitive
documentation to be
executed on or prior to the
Effective Date, and (b) JMB
shall have no such consent
rights in the event that,
in the reasonable
determination of a
financial advisor retained
by Newco LP or its designee
(the selection of such
financial advisor to be
reasonably satisfactory to
JMB) to market any public
or private transaction for
Equity Interests in Newco
LP, the existence of such
consent rights or any other
restriction on the sale of
245 Park Avenue would have
an adverse effect on the
marketing of such equity
transaction.
Allocation of Debt: JMB, as holder of a direct
partner interest in 245
Holding LP, which holds a
direct partner interest in
Newco LP, shall have a share
of the liabilities of Newco LP
for purposes of sections 704
and 752 of the IRC as
described in this paragraph.
If requested by JMB, Newco LP
and New 245 Park LP and/or its
designee(s) shall adopt the
"remedial allocation method"
under Treasury Regulations
section 1.704-3, with respect
to 245 Park Avenue and Newco
LP shall agree not to revoke
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or withdraw the remedial
allocation method so long
as Newco LP continues to
own 245 Park Avenue (which
shall be at least until
January 2, 2000, as
provided above). If such
"remedial allocation
method" is adopted, the
partnership agreement for
Newco LP will reflect that
the partners intend that
(i) upon consummation of
the Plan, 245 Holding LP's
share of Newco LP's
liabilities secured by 245
Park Avenue will be
approximately $145,000,000
(this assumes that, JMB's
section 704(c) book/tax
difference is $155,000,000
on the Effective Date; to
the extent that such
book/tax difference is a
different amount, 245
Holding LP's share of Newco
LP's liabilities secured by
245 Park Avenue will change
accordingly, as provided
under applicable Treasury
Regulations) and,
subsequently, 245 Holding
LP's liabilities secured by
245 Park Avenue will be
approximately $145,000,000
(assuming JMB's section
704(c) book/tax difference
is $155,000,000 on the
Effective Date with the
adjustments as provided in
this clause (i)) less only
those reductions in 245
Holding LP's share of
liabilities required under
the remedial allocation
method under Treasury
Regulations Section
1.704-3), (ii) in addition
to the liabilities
described in clause (i),
upon consummation of the
Plan and subsequently (in
accordance wit the remedial
allocation method under
Treasury
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Regulations Section
1.704-3), 245 Holding LP's
share of Newco LP's section
752 liabilities shall be
equal to the product of (A)
the total amount of Newco
LP's section 752
liabilities described under
Treasury Regulation Section
1.752-3(a)(3) and (B) 245
Holding LP's Class A
percentage interest in
Newco LP (clause (ii) is
intended to provide for the
allocation to 245 Holding
LP of its share of Newco LP
liabilities under Treasury
Regulation section
1.752-3(a)(3)) and (iii)
all of such liabilities
(described in clauses (i)
and (ii)) will constitute
and be reported as
qualified nonrecourse
financing (within the
meaning of section
465(b)(6) of the IRC).
Based on existing law and
regulations, in preparing
any income tax return of
Newco LP, 245 Holding LP
and New 245 Park, there
will be no attachment or
statement that indicates
that there is more than one
activity for purposes of
section 465 of the IRC.
Notwithstanding anything to
the contrary in this
paragraph, (i) the
partnership agreements for
New 245 Park LP and 245
Holding LP shall not be
inconsistent with this
paragraph and (ii) all of
the statements and
representations set forth
in the section below
entitled "Other Agreements"
will be satisfied.
Other Agreement: The debt on 245 Park Avenue
cannot be reduced below $145
million prior to January 2,
1999 without JMB's consent,
which consent can be withheld
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in JMB's sole and absolute
discretion. Thereafter,
prior to January 2, 2003,
the debt on 245 Park Avenue
cannot be reduced below
$145 million without JMB's
consent (which consent can
be withheld in JMB's sole
and absolute discretion)
except in the following
circumstance (in which
circumstance, JMB's consent
shall not be required to a
reduction of the debt on
245 Park Avenue to the
level of debt that is
required by the transaction
with the purchaser
described immediately
below):
Newco is raising new equity
through the sale of new equity
interests and the purchaser(s)
requires as a condition to the
transaction that the debt on
245 Park Avenue be reduced
below $145 million and that
the satisfaction of that
specific condition, taking
into account the prepayment
penalty, if any, on the
existing debt, will result in
materially better terms (as
reasonably determined by a
nationally recognized
independent investment and
financial advisor reasonably
satisfactory to JMB) for
the equity sale by Newco than
would otherwise result if the
debt on 245 Park Avenue were
not so reduced.
If the debt on 245 Park Avenue
is to be reduced below $145
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million in accordance with
an equity sale transaction
described immediately
above, Newco shall not
consummate such equity sale
transaction unless (a)
Newco arranges for the
purchase, and offers to JMB
the right to sell, all or
any part of 245 Holding
LP's direct interests in
Newco LP at a gross price
per interest that Newco is
selling its new equity, and
(b) JMB either declines to
sell any of such direct
interests in Newco LP or
the equity sale transaction
closes for the purchase and
sale of the Newco LP
interests that JMB has
elected to sell.
JMB shall have no consent
rights with respect to the
level of debt on 245 Park
Avenue from and after
January 2, 2003.
Management Fees and
Leasing Commissions: Newco LP or its designee will
provide both property
management and asset
management services for 245
Park Avenue and will be
compensated out of cash flow
as follows: (i) a property
management fee equal to 2% of
collected gross revenues from
existing leases and 1% of
collected gross revenues from
all leases signed in the
future; (ii) an annual asset
management fee equal to 0.5%
of Gross Asset Value in the
first two years after the
Effective Date and .35% of
Gross Asset Value thereafter;
and (iii) leasing commissions
for leasing transactions equal
to (a) a full standard
commission for leasing
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transactions if the tenant
is not represented by an
outside broker and (b) a
50% override on commissions
paid to outside brokers.
JMB Payments: Newco LP shall be obligated to
pay, for a period of five (5)
years after the Effective
Date, a monthly payment in an
amount equal to one-third of
the property management fees
for 245 Park Avenue payable to
Newco LP or its designee (the
"JMB/245 Park Payments");
provided, however, that the
JMB/245 Park Payments shall
not, in any single year, be
less than $400,000 or greater
than $600,000; and provided,
further, that the JMB/245 Park
Payments shall not, in the
aggregate for such five-year
period, be less than
$2,300,000. The JMB/245 Park
Payments shall be payable to
JMB in all events, including
in the event that Newco LP or
its designee does not receive,
for any reason, the fees
referred to in the paragraph
above.
Professional
Costs: JMB shall be reimbursed for
the costs and expenses
(including fees and expenses
of legal and accounting
professionals) incurred in
implementing the transactions
contemplated by this section
15.8.1 to a maximum amount of
$375,000.
Releases: In addition to the releases
provided in section 24 hereof,
JMB and the O&Y Affiliates
will execute and deliver
mutual releases of Claims
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between JMB and the O&Y
Affiliates, other than
Claims and interests
arising in connection with
the transactions
contemplated by this Plan.
The distributions on account of the Equity Interests of JMB in
245 Park Co. provided in this section 15.8 shall be made in accordance with
section 18.6 hereof.
15.8.2. Equity Interests of Equityco,
Equity GP, 245 Holding LP and
245 Corp. in 245 Park Co.
On the Effective Date and in accordance with the Restructuring
Transactions, each holder of an Allowed Equity Interest in 245 Park Co.,
245 Holding LP and 245 Corp., other than JMB, shall be distributed on
account of such holder's Allowed Equity Interest, an Equity Interest in New
245 Park LP, subject to the rights of JMB to retain its partner interest in
245 Park Co., in certain instances, in accordance with section 15.8.1
hereof.
SECTION 16. PROVISIONS FOR TREATMENT OF
CLAIMS AGAINST AND EQUITY
INTERESTS IN TOWER B LEASECO.
16.1. Priority Non-Tax Claims Against
Tower B Leaseco (Tower B Leaseco Class 1).
On the Effective Date, in full satisfaction of the Allowed
Priority Non-Tax Claims against Tower B Leaseco, each holder of an Allowed
Priority Non-Tax Claim against Tower B Leaseco shall be distributed on
account of such Allowed Priority Non-Tax Claim a payment in Cash equal to
the amount of such holder's Allowed Priority Non-Tax Claim.
16.2. Merrill Lynch/Tower B Leaseco Secured Claim
(Tower B Leaseco Class 2).
On the Effective Date, in full satisfaction of the Allowed
Merrill Lynch/Tower B Leaseco Secured Claim, Merrill Lynch shall be
distributed a payment in Cash of $502,000.
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16.3. Insured Claims Against
Tower B Leaseco (Tower B Leaseco Class 3).
On the Effective Date, each holder of an Insured Claim against
Tower B Leaseco shall only be entitled to maintain actions against and
obtain payment solely from an insurance company under an insurance policy
or policies issued by such company to, or for the benefit of, Tower B
Leaseco.
16.4. General Unsecured Claims Against
Tower B Leaseco (Tower B Leaseco Class 4).
On the Effective Date, after giving effect to the payment of
Administrative Expense Claims against Tower B Leaseco and distributions
required by section 16.1 hereof and the distribution to the Merrill Lynch
Capital Fund in accordance with sections 4.4(b) and 16.2 hereof, and in
full satisfaction of the Allowed General Unsecured Claims against Tower B
Leaseco, each holder of an Allowed General Unsecured Claim against Tower B
Leaseco shall be distributed the lesser of (a) a payment in Cash equal to
the amount of such holder's Allowed General Unsecured Claim against Tower B
Leaseco, if the Available Cash of Tower B Leaseco at the time is sufficient
to fund such payment of all Allowed General Unsecured Claims against Tower
B Leaseco, and (b) a payment in Cash equal to such holder's Ratable
Proportion of the Available Cash of Tower B Leaseco on the Effective Date.
16.5. Equity Interests in Tower
B Leaseco (Tower B Leaseco Class 5).
On the Effective Date and in accordance with the Restructuring
Transactions, each holder of an Allowed Equity Interest in Tower B Leaseco
will receive no distribution on account of such Allowed Equity Interest in
Tower B Leaseco.
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SECTION 17. IDENTIFICATION OF CLASSES OF CLAIMS
AND INTERESTS IMPAIRED AND NOT
IMPAIRED UNDER THIS PLAN;
ACCEPTANCE OR REJECTION OF THIS
PLAN.
17.1. Holders of Claims and
Equity Interests Entitled to Vote.
Each holder of an Allowed Claim or an Allowed Equity Interest in
an impaired class of Claims against or Equity Interests in the Debtors
shall be entitled to vote separately to accept or reject this Plan.
Each of Consolidated Devco Classes 2, 3, 4, 5, 6, 7, 8, 9, 10, 11
and 12, Consolidated Realty Corp. Classes 2, 3, 4, 5, 6, and 7, SF Holdings
Classes 2 and 3, Devco Canada Classes 2, 3, and 4, Equity Canada Classes 2,
3, and 4, Consolidated OLP Classes 2, 3, 4, 5 and 6, Tower A Co. Classes 2,
3, 4, 5 and 6, Tower Corp. Classes 2 and 3, Consolidated 245 Classes 2, 3,
4, 5, 6, 7 and 8, and Tower B Leaseco Classes 2, 3 and 4 is impaired
hereunder, and the holders of Claims or Equity Interests in such classes
are entitled to vote on this Plan. In accordance with section 1126(g) of
the Bankruptcy Code, each of Tower Corp. Classes 4 and 5 and Tower B
Leaseco Class 5 is conclusively deemed to have rejected the Plan.
17.2. Acceptance by Unimpaired Classes.
Each of Consolidated Devco Class 1, Consolidated Realty Corp.
Class 1, SF Holdings Class 1, Devco Canada Class 1, Equity Canada Class 1,
Consolidated OLP Class 1, Tower A Co. Class 1, Tower Corp. Class 1,
Consolidated 245 Class 1, and Tower B Leaseco Class 1 is unimpaired under
this Plan, and each such Class is conclusively presumed to have accepted
this Plan pursuant to section 1126(f) of the Bankruptcy Code.
17.3. Elimination of Classes.
Any class of Claims that is not occupied as of the date of the
commencement of the Confirmation Hearing by an Allowed Claim or a Claim
temporarily allowed under Rule 3018 of the Bankruptcy Rules shall be deemed
deleted from this Plan for purposes of voting on this Plan, and for
purposes of determining acceptance or rejection of this Plan by such class
under section 1129(a)(8) of the Bankruptcy Code.
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17.4. Nonconsensual Confirmation.
If any impaired class of Claims or Equity Interests shall not
have accepted this Plan by the requisite statutory majorities provided in
sections 1126(c) or 1126(d) of the Bankruptcy Code, as applicable, the
Debtors and the Co-Proponents reserve the right to (a) request the
Bankruptcy Court to confirm this Plan pursuant to section 1129(b) of the
Bankruptcy Code, or (b) modify this Plan in accordance with section 25.2
hereof.
17.5. Revocation of Plan.
The Debtors and the Co-Proponents reserve the right to revoke and
withdraw this Plan at any time prior to the Confirmation Date. If this Plan
is so revoked or withdrawn, then this Plan shall be deemed null and void.
SECTION 18. MEANS OF IMPLEMENTATION.
Each of the transactions required to implement the Plan shall be
implemented in accordance with this section 18 and the Restructuring
Transactions described in Schedule 18 hereto. The descriptions in this
section 18 of the organizational and ownership structures, governance, and
assets and liabilities of the Entities to be organized or reorganized under
the Plan assumethat the transactions required to implement the Plan have
been completed. All numbers used in this section 18 are estimates subject
to adjustment prior to the Effective Date.
18.1. Newco LP.
The provisions of this section 18.1 relating to the provisions of
the Newco LP partnership agreement (and such other provisions of the Plan
describing the Newco Lp partnership agreement) shall be amended as set
forth in Exhibit H hereto.
18.1.1. Organization, Capitalization
and Ownership of Newco LP.
By the Effective Date, Newco LP will be organized as a Delaware
limited partnership by the filing of a certificate of limited partnership
with the Delaware Secretary of State. After taking into account the
distributions to be made under this Plan, Managing GP will hold the General
Partner Interest and a 1% Class B Interest
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in, and will be the sole general partner of, Newco LP; 245 Holding LP will
hold a 5.4949% Class A Interest in Newco LP; and the remaining limited
partner interests in Newco LP will be held, directly or indirectly, by the
Co-Proponents, the holders of Allowed Unaffiliated Unsecured Claims, and
the holders of Allowed General Unsecured Claims against Consolidated Realty
Corp. In addition, the holders of Convertible Note Interests will have the
right to convert such interests into Class A Interests, as described in
section 7.11.1 hereof, pursuant to the Conversion Right. Each holder of a
Class B Interest will have such interest automatically exchanged or
converted for or into a Class A Interest as provided below. Until such time
as a Class B Interest is so exchanged or converted, the holders thereof
will not be entitled to any interest in respect of the assets of Newco LP
other than those assets that relate to the Disputed SF Cash and/or the
Disputed MCJV Recovery, as provided below.
If and when Newco LP's ownership interest in the Disputed SF Cash
ceases to be disputed by reason of the entry of an order of the Bankruptcy
Court or another court of competent jurisdiction either (a) confirming
Newco LP's ownership interest in the Disputed SF Cash or (b) approving an
executed and delivered settlement agreement with Coopers & Lybrand OYDL,
Inc./Limited, or any successor in interest to Coopers & Lybrand OYDL,
Inc./Limited, Newco LP shall determine the amount of SF Cash remaining
after deducting litigation costs and/or settlement amounts (the "Net SF
Cash"). Within thirty (30) Business Days after the date of entry of such
court order (the "SF Deadline"), each then outstanding Class B Interest
shall automatically be exchanged or converted in a manner or mechanic set
forth in the Newco LP Partnership Agreement for or into that percentage of
Class A Interests determined by dividing (a) the Net SF Cash, by (b) the
sum of (x) the Newco LP Reorganization Value plus (y) the Net SF Cash plus
(z) the aggregate value of all capital contributions and issuances of Class
A Interests after the Effective Date (whether occurring pursuant to an
exchange or conversion of Class B Interests or a conversion of Convertible
Note Interests). If, on the SF Deadline, an exchange or conversion of Class
B Interests for or into Class A Interests has not already occurred by
reason of a sale of the MCJV Lands as described in the next paragraph, the
holders of Class B Interests shall continue to be entitled to participate
in the value of the Disputed MCJV Recovery.
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If and when the Disputed MCJV Recovery ceases to be disputed and
Newco LP executes and delivers a contract of sale of the MCJV Lands, Newco
LP shall determine the amount of the net Cash proceeds of such sale, after
deducting any litigation costs, settlement amounts and the amount required
to be distributed to Bank of Nova Scotia in accordance with the Bank of
Nova Scotia Settlement (the "Net MCJV Proceeds"). Within thirty (30)
Business Days after the date of entry of an order of the Bankruptcy Court
approving such sale (the "MCJV Deadline"), each then outstanding Class B
Interest shall automatically be exchanged or converted in a manner or
mechanic set forth in the Newco LP Partnership Agreement for or into that
percentage of Class A Interests determined by dividing (a) the Net MCJV
Proceeds, by (b) the sum of (x) the Newco LP Reorganization Value plus (y)
the Net MCJV Proceeds plus (z) the aggregate value of all capital
contributions and issuances of Class A Interests after the Effective Date
(whether occurring pursuant to an exchange or conversion of Class B
Interests or a conversion of Convertible Note Interests). If, on the MCJV
Deadline, an exchange or conversion of Class B Interests for or into Class
A Interests has not already occurred by reason of a resolution of the
Disputed SF Cash as described in the immediately preceding paragraph, the
holders of Class B Interests shall continue to be entitled to participate
in the value of the Disputed SF Cash.
Notwithstanding the foregoing, if, on the SF Deadline, an
exchange or conversion of Class B Interests for or into Class A Interests
has not already occurred by reason of a sale of the MCJV Lands, Newco LP
shall deduct from the amount of Net SF Cash used in the formula described
in the second preceding paragraph above (a) the litigation costs and other
expenses of Newco LP expended in attempting to settle or litigate Claims
relating to the Disputed MCJV Recovery and (b) the amount required to be
deposited in a reserve to fund litigation costs and other expenses of Newco
LP estimated to be expended by Newco LP in attempting to settle or litigate
Claims relating to the Disputed MCJV Recovery. Any amounts to be reserved
pursuant to clause (b) of the preceding sentence shall by subject to the
approval of the Bankruptcy Court in connection with any order of the
Bankruptcy Court confirming Newco LP's ownership interest in the Disputed
SF Cash or approving an executed and delivered settlement agreement with
Coopers & Lybrand OYDL, Inc./Limited.
If, on the MCJV Deadline, an exchange or conversion of Class B
Interests for or into Class A
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Interests has not already occurred by reason of the resolution of the
dispute relating to the Disputed SF Cash, Newco LP shall deduct from the
amount of Net MCJV Proceeds used in the formula described in the second
preceding paragraph above (a) the litigation costs and other expenses of
Newco LP expended in attempting to settle or litigate Claims relating to
the Disputed SF Cash and (b) the amount required to be deposited in a
reserve to fund litigation costs and other expenses of Newco LP estimated
to be expended by Newco LP in attempting to settle or litigate Claims
relating to the Disputed SF Cash. Any amounts to bereserved pursuant to
clause (b) of the preceding sentence shall by subject to the approval of
the Bankruptcy Court in connection with any order of the Bankruptcy Court
approving the sale of the MCJV Lands.
On the Effective Date, Realty Corp. will transfer 100% of the
outstanding stock of SF Holdings to Newco LP. On the Effective Date, SF
Holdings will transfer all of its right, title and interest in the Disputed
SF Cash to an independent third-party escrow agent postpetition pending the
outcome of such dispute, subject to any related income tax. On the
Effective Date, Newco LP, indirectly through its wholly owned subsidiary,
Florida Equity Corp., a Florida corporation, will hold a 50% joint venture
interest in MCJV.
18.1.2. Assets and Liabilities of Newco LP.
On the Effective Date, Newco LP will own, among other things, the
following assets, free and clear of all Liens, Claims and encumbrances,
subject to the potential adjustments described in sections 18.8 and 18.9
hereof:
100% of the outstanding stock of Devco GP
99% limited partner interest in New 245 Park LP
70.6666667% partner interest in New Tower A LP
98% limited partner interest and 1% general
partner interest in WFC Tower B Holding Co. LP
99% limited partner interest in New Tower D
Holding I LP
49.25% limited partner interest in Tower D Holding
II LP
99% general partner interest in 53 Holding
Company LP
99% limited partner interest in New Liberty Plaza
LP
100% of the fixed loan from New 245 Park LP
99% limited partner interest in Pennland LP
99% limited partner interest in WFC Retailco LP
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100% of the outstanding stock of WFC Tower D GP
Corp.
100% of the outstanding stock of Florida Equity
Corp.
100% of the outstanding stock of SF Holdings
On the Effective Date, Newco LP shall be a borrower or an
obligor, as the case may be, under the Convertible Note, the deferred Cash
payments to be provided to TIAA in accordance with the TIAA Settlement and
certain of the Tax Notes to be issued under this Plan.
18.1.3. Repayment of Withholding Advances.
If a Withholding Advance on behalf of a partner or its assignee
is made by Newco LP, such partner or assignee shall have thirty (30)
Business Days within which to repay such advance in full in Cash. If such
repayment is not timely made, Newco LP shall be entitled to deduct such
amount and permanently adjust the interest of such partner or assignee
accordingly. If Newco LP determines that it would have insufficient funds
to make a Withholding Advance, Newco LP shall be entitled to require the
partner for which the withholding requirement applies to pay the amount of
such withholding requirement sufficiently in advance of the payment date to
permit Newco LP to timely satisfy its withholding tax liability.
18.1.4. Governance of Newco LP.
The business and affairs of Newco LP will be managed by its sole
general partner, Managing GP, acting by majority vote through its Board of
Directors; provided, however, that action by Newco LP in respect of the
following matters will require a supermajority vote (the percentage
constituting such supermajority shall be agreed to by the Co-Proponents) of
the Board of Directors of Managing GP:
(i) a significant acquisition or business combination, or
disposition of any Core Property;
(ii) any issuance or purchase by any Entity controlled by
Managing GP of any capital stock or any other Equity Interests (including
any significant long-term debt refinancing involving the issuance of any
capital stock or any other Equity Interests), except an issuance made in
exchange for debt upon an actual or anticipated default on such debt where
no other available alternative is acceptable to the creditor;
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(iii) any transaction between any Entity controlled by Managing
GP and any related party (other than ordinary course transactions);
(iv) the initial selection, and any removal or replacement, of
Managing GP's Chief Executive Officer during the three-year period
following the Effective Date; and
(v) any amendment of the organizational documents of any Entity
owned or controlled by Managing GP affecting cumulative voting in any
election of directors or affecting any of the matters referred to in
clauses (i) through (iv) of this section 18.1.4.
The Co-Proponents will enter into a stockholders' agreement with
respect to their ownership in and the governance of Managing GP, including,
without limitation, an agreement with respect to the nomination and
election of directors of Managing GP.
Managing GP will have the exclusive power and authority to
reorganize or restructure the ownership interests of Newco LP to permit an
Entity qualifying as a real estate investment trust for federal income tax
purposes to become a partner of Newco LP, including, in connection
therewith, the power and authority to distribute such ownership interests
and any associated contractual or other obligations of or held by Newco LP
to Newco LP's partners.
18.2. Ownership of Managing GP.
On the Effective Date, the Co-Proponents will own 100% of the
issued and outstanding capital stock of Managing GP which, in turn, will
own the General Partner Interest and 1% of the Class B Interests in Newco
LP. The General Partner Interest of Managing GP in Newco LP will be issued
by Newco LP in partial consideration of the Co-Proponents' Capital Infusion
and the Allowed Co-Proponent Unsecured Claims.
18.3. Organization of Devco GP.
18.3.1. Organization and Ownership of Devco GP.
On the Effective Date, Equity GP will be merged with and into
Devco GP, with Devco GP as the surviving corporation. On the Effective
Date, Newco LP will own 100% of the outstanding common stock of Devco GP.
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18.3.2. Assets and Liabilities of Devco GP.
On the Effective Date, Devco GP will own the following assets,
free and clear of all Liens, Claims and encumbrances, subject to the
potential adjustments described in sections 18.8 and 18.9 hereof:
100% of the outstanding stock of WFC Tower B
Finance Corp.
15% of the outstanding stock of Brunswash
Development Corp.
100% of the New OLP Corp. Class A Stock and New
OLP Corp. Class B Stock
100% of the New Tower A Corp. Class A Stock and
New Tower A Corp. Class B Stock
.9% general partner interest in 245 Holding LP
1% general partner interest in WFC Tower B Holding
Co. LP
100% of the 245 Corp. Class A Stock and the
245 Corp. Class B Stock
100% of the outstanding stock of Tower D Holding I
Corp.
50.75% general partner interest in New Tower D
Holding II LP
1% limited partner interest in 53 Holding Company
LP
100% of the outstanding stock of WFC Retailco
Holding Corp.
100% of the outstanding stock of Pennland GP
Corp.
33.33% joint venture interest in Federal Center
Associates
On the Effective Date, Devco GP will have no material
indebtedness.
18.3.3. Capital Stock of Devco GP.
On the Effective Date, the authorized capital stock of Devco GP
shall consist only of common stock, in such amount and having the par value
and other rights, privileges, limitations and restrictions as will be set
forth in Devco GP's certificate of incorporation.
18.3.4. Governance of Devco GP.
On the Effective Date, the business and affairs of Devco GP will
be managed by and under the direction of a
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board of directors elected by Newco LP, Devco GP's sole stockholder.
18.4. Organization of Liquidating Corp.
By the Effective Date, Liquidating Corp. will be organized as a
Delaware corporation by the filing of a certificate of incorporation with
the Delaware Secretary of State. The Co-Proponents will own 100% of the
issued and outstanding Liquidating Corp. Shares.
18.4.1. Assets and Liabilities
of Liquidating Corp.
On the Effective Date, Liquidating Corp. will own, among other
things, the Equity Interests in the companies listed below, free and clear
of all Liens, Claims and encumbrances unless, with respect to the assets
listed below that are Entities, such Entities have been dissolved or
otherwise eliminated prior to the Effective Date.
Amland Properties Corp.
Forum Properties Corp.
Hartford Park Associates
Izzard Corp.
Olympia (U.S.) Development Subsidiary Corp.
Olympia Center Holding Company, L.P.
Olympia & York Bryan Holding Company
Olympia & York Colorado Development Corp.
Olympia & York Communications, Inc.
Olympia & York Cypress Corp.
Olympia & York Denver Properties Corp.
Olympia & York Development Seattle Company
Olympia & York Fountain Plaza Company
Olympia & York Grampian Corp.
Olympia & York Homes Corp.
Olympia & York Jefferson Street Company
Olympia & York KOIN Center Company
Olympia & York Maiden Lane Company
Olympia & York Maiden Lane Finance Corp.
Olympia & York Mass Investment Corp.
Olympia & York Properties (Portland) Company
Olympia & York Southeast Equity Corp.
Olympia & York State Street Company
Olympia & York Tower B Lease Company
Olympia & York Water Street Company
Olympia & York & O&Y FEC Corp Joint Venture
Olympia & York 245 Lease Company
Olympia & York 320 G.O.T. Company
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Olympia & York 320 Park Company
Orion Limited Partnership
OYCI Video, Inc.
O&Y Concord 60 Broad Street Company
O&Y Construction Corp.
O&Y Cypress Florida Inc.
O&Y Dalland Corp.
O&Y FEC Corp.
O&Y Hope Street, Inc.
O&Y I/S Guide Inc.
O&Y NY Building Corp.
O&Y Plaza Corp.
O&Y REUSA TALP Subsidiary Corp. O&Y WFC Maintenance Corp.
O&Y-YBG Corp.
O&Y-YBG L.P.
O&Y 7 Hanover Leasing Company, L.P. O&Y 55 WS Lease Co.,
L.P.
O&Y 233 Park South Company, L.P.
O&Y 320 Park Corp.
Senior Associates
SYR Mall Corp.
Tremont Park Associates
WFC Tower Corp.
West 31st Street Associates
2 Broadway Associates
2 Broadway Associates L.P.
2 Broadway Land Company
60 Broad Street Management Corp.
125 Broad Street Company
11601 Holding Corp.
11601 Holdings, L.P.
Notwithstanding anything in this section 18.4.1, the transfer of the Equity
Interests in O&Y Concord 60 Broad Street Company to Liquidating Corp. shall
not in any way affect the Liens of Dragon relating to such Equity
Interests; provided, however, that any Liabilities of the partners in O&Y
Concord 60 Broad Street Company shall be released in accordance with this
Plan.
18.4.2. Governance of Liquidating Corp.
From and after the Effective Date, the business and affairs of
Liquidating Corp. will be managed by and under the direction of a board of
directors, initially designated by the Co-Proponents. Thereafter, the
composition of the board of directors of Liquidating Corp.
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will be determined in accordance with the articles ofincorporation of
Liquidating Corp.
18.4.3. Funding of Liquidation Costs.
On the Effective Date, Newco LP shall provide Liquidating Corp.
with the Liquidation Funding Advance, which shall be a credit facility in a
maximum amount of $1,000,000, which credit facility may drawn upon from
time to time by Liquidating Corp., shall mature three years from the
Effective Date, shall accrue interest at 15% per annum, and shall be
recourse to Liquidating Corp.
18.5. OLP Transactions.
18.5.1. Reorganization of OLP Entities.
By the Effective Date, New OLP Corp. will be organized as a
Delaware corporation by the filing of a certificate of incorporation with
the Delaware Secretary of State. The board of directors of New OLP Corp.
will have at least five (5) directors. By the Effective Date, Devco GP and
Devco will transfer their respective partnership interests in OLP Co. and
Trinity Place Co. to Liberty Plaza Co., with OLP Co. and Trinity Place Co.
being dissolved by reason of such transfers. Immediately thereafter, on the
Effective Date, Liberty Plaza Co., as successor to the respective assets
and Liabilities of OLP Co. and Trinity Place Co., will be reorganized as
New Liberty Plaza LP, with New OLP Corp. as a 1% sole general partner and
Newco LP as a 99% limited partner. Such partners shall be restricted from
transferring or pledging their respective interests in New Liberty Plaza LP
pursuant to a partnership agreement of New Liberty Plaza LP to be entered
into by such partners as of the Effective Date.
18.5.2. Execution of Sanwa/OLP
Restructured Mortgage Loan Documents.
On the Effective Date, Sanwa and New OLP Corp. and New Liberty
Plaza LP will execute and deliver the Sanwa/OLP Restructured Mortgage Loan
Documents.
18.5.3. Bankruptcy Remote Structure.
On the Effective Date and in accordance with section 12.2 hereof,
New OLP Corp. will have two classes of stock, the New OLP Corp. Class A
Stock and the New OLP Corp. Class B Stock, all of which will be held by
Devco GP on the
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Effective Date. All of the shares of New OLP Corp. Class B Stock shall be
pledged by Devco GP to Sanwa to further secure the Sanwa/OLP Restructured
Mortgage Loan. The New OLP Corp. Class B Stock pledged to Sanwa shall be
entitled to elect one director of New OLP Corp., and Sanwa, as pledgee,
shall be entitled to vote such shares. New OLP Corp. shall not be
authorized under its certificate of incorporation to (a) commence a chapter
11 case or undertake other insolvency or reorganization proceedings, or
cause New Liberty Plaza LP to do so, or (b) dissolve, in each case without
the approval of Sanwa's director for so long as the Sanwa/OLP Restructured
Mortgage Loan shall be outstanding. Sanwa's director shall not vote on any
other issues. New Liberty Plaza LP and New OLP Corp. will agree not to file
a bankruptcy petition if Sanwa declares a default or commences a
foreclosure proceeding following a default, without the vote of the
director elected by Sanwa, and such director shall have the sole right to
authorize the filing of a plan of reorganization for New Liberty Plaza LP
or New OLP Corp. in any bankruptcy proceeding that may be filed by New
Liberty Plaza LP or New OLP Corp. If a bankruptcy petition is filed by or
against New Liberty Plaza LP or New OLP Corp. at any time after the
Effective Date, New Liberty Plaza LP and New OLP Corp. will be
contractually obligated (a) to agree to a modification of the automatic
stay to permit, at Sanwa's option, Sanwa to exercise its foreclosure and
related rights, and (b) to enter into a cash collateral stipulation
providing for the application of revenues in accordance with the cash
management system at all times during the pendency of any bankruptcy
proceeding, except that property management fees will be reduced by 50% and
no asset management fees will be paid. In the event Sanwa files a motion
for a modification of the automatic stay in accordance with the preceding
sentence and such motion is denied by the Bankruptcy Court, neither New
Liberty Plaza LP nor New OLP Corp. shall have the right to seek any
extension of exclusivity in any such bankruptcy proceeding without the
prior approval of Sanwa.
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18.6. 245 Park Avenue Transactions.
18.6.1. Organization and Ownership
of 245 Holding LP.
On the Effective Date, 245 Holding LP will be reconstituted as a
Delaware limited partnership. If JMB does not elect the JMB/245 Park Member
Option in accordance with section 15.8.1 hereof, JMB will a hold a 99%
limited partner interest and Devco GP will hold a 1% general partner
interest in 245 Holding LP. On the Effective Date, 245 Holding LP will hold
a 5.4949% Class A Interest in Newco LP. At JMB's request, 245 Holding LP
will be organized as a general partnership, unless the doing so shall cause
or create an adverse tax consequence.
18.6.2. Organization and Reorganization
of Other 245 Park Avenue Entities.
By the Effective Date, New 245 Park LP will be organized as a
Delaware limited partnership by the filing of a certificate of limited
partnership with the Delaware Secretary of State. Newco LP will hold a 99%
limited partner interest and 245 Corp. will hold a 1% sole general partner
interest in New 245 Park LP. Such partners will be restricted from
transferring or pledging their respective interests in New 245 Park LP
pursuant to a partnership agreement of New 245 Park LP to be entered into
by such partners as of the Effective Date.
18.6.3. Bankruptcy Remote Structure.
On the Effective Date and in accordance with section 15.3
hereof, 245 Corp. will have two classes of stock, the 245 Corp. Class A
Stock and the 245 Corp. Class B Stock, all of which will be held by Devco
GP on the Effective Date. All of the shares of 245 Corp. Class B Stock
shall be pledged by Devco GP to Aetna to further secure the Aetna
Restructured Mortgage Loan. The 245 Corp. Class B Stock pledged to Aetna.
Aetna shall be entitled to elect one director of 245 Corp., and Aetna, as
pledgee, shall be entitled to vote such shares. The board of directors of
245 Corp. will have at least five (5) directors. 245 Corp. will not be
authorized under its certificate of incorporation to (a) commence a chapter
11 case or undertake other insolvency or reorganization proceedings, or
cause New 245 Park LP to do so, or (b) dissolve, in each case without the
approval of Aetna's director for so long as the Aetna Restructured Mortgage
Loan
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remains outstanding. Aetna's director shall not vote on any other issues.
The independent director shall consult with DKB prior to and in connection
with any vote such director casts in such capacity. New 245 Park LP and 245
Corp. will agree not to file a bankruptcy petition if Aetna declares a
default or commences a foreclosure proceeding following a default, without
the vote of the director elected by Aetna, and such director shall have the
sole right to authorize the filing of a plan of reorganization for New 245
Park LP and 245 Corp. in any bankruptcy proceeding that may be filed by New
245 Park LP and 245 Corp. If a bankruptcy petition is filed by or against
New 245 Park LP or 245 Corp. at any time after the Effective Date, New 245
Park LP and 245 Corp. will be contractually obligated (a) to agree to a
modification of the automatic stay to permit, at Aetna's option, Aetna to
exercise its foreclosure and related rights, and (b) to enter into a cash
collateral stipulation providing for the application of revenues in
accordance with the cash management system at all times during the pendency
of any bankruptcy proceeding, except that property management fees will be
reduced by 50% and no asset management fees will be paid. In the event
Aetna files a motion for a modification of the automatic stay in accordance
with the preceding sentence and such motion is denied by the Bankruptcy
Court, neither New 245 Park LP nor 245 Corp. shall have the right to seek
any extension of exclusivity in any such bankruptcy proceeding without the
prior approval of Aetna. In the event that the Aetna Restructured Mortgage
Loan is satisfied at a time when the DKB Restructured Mortgage Loan remains
outstanding, DKB shall be entitled to appoint an independent director of
245 Corp., which director shall replace, and shall serve in the same
capacity as, Aetna's director and shall be entitled to the same
indemnification rights as the director appointed by Aetna.
18.6.4. Execution of Aetna Restructured
Mortgage Loan Documents.
On the Effective Date, Aetna and New 245 Park LP will execute and
deliver the Aetna Restructured Mortgage Loan Documents.
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18.6.5. Execution of DKB Restructured
Mortgage Loan Documents.
On the Effective Date, DKB and New 245 Park LP will execute and
deliver the DKB Restructured Mortgage Loan Documents.
18.6.6. Execution of JMB
Restructuring Documents.
On the Effective Date, the JMB Restructuring Documents will be
executed and delivered.
18.7. Tower A Transactions.
18.7.1. Organization of Tower A Entities.
By the Effective Date, New Tower A Corp. will be organized as a
Delaware corporation by the filing of a certificate of incorporation with
the Delaware Secretary of State. The board of directors of New Tower A
Corp. will have at least five (5) directors. By the Effective Date, New
Tower A LP will be organized as a Delaware limited partnership by the
filing of a certificate of limited partnership with the Delaware Secretary
of State. New Tower A LP will have TALP as a 26.2626263% limited partner,
Newco LP as a 70.6666667% limited partner and New Tower A Corp. as a
3.070707% sole general partner. Such partners will be restricted from
transferring or pledging their respective interests in New Tower A LP
pursuant to the partnership agreement of New Tower A LP to be entered into
by such partners as of the Effective Date.
18.7.2. Execution of Sanwa/Tower A
Restructured Mortgage Loan Documents.
On the Effective Date, Sanwa and New Tower A LP will
execute and deliver the Sanwa/Tower A Restructured Mortgage Loan Documents.
18.7.3. Bankruptcy Remote Structure.
On the Effective Date and in accordance with section 13.2 hereof,
New Tower A Corp. will have two classes of stock, the New Tower A Corp.
Class A Stock and the New Tower A Corp. Class B Stock, all of which will be
held by Devco GP on the Effective Date. All of the shares of New Tower A
Corp. Class B Stock shall be pledged by Devco GP to Sanwa to further secure
the Sanwa/Tower A Restructured
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Mortgage Loan. The New Tower A Corp. Class B Stock pledged to Sanwa shall
be entitled to elect one director of New Tower A Corp., and Sanwa, as
pledgee, shall be entitled to vote such shares. New Tower A Corp. shall not
be authorized under its certificate of incorporation to (a) commence a
chapter 11 case or undertake other insolvency or reorganization
proceedings, or cause New Tower A LP to do so, or (b) dissolve, in each
case without the approval of Sanwa's director for so long as the
Sanwa/Tower A Restructured Mortgage Loan remains outstanding. Sanwa's
director shall not vote on any other issues. New Tower A LP and New Tower A
Corp. will agree not to file a bankruptcy petition if Sanwa declares a
default or commences a foreclosure proceeding following a default, without
the vote of the director elected by Sanwa, and such director shall have the
sole right to authorize the filing of a plan of reorganization for New
Tower A LP or New Tower A Corp. in any bankruptcy proceeding that may be
filed by New Tower A LP or New Tower A Corp. If a bankruptcy petition is
filed by or against New Tower A LP or New Tower A Corp. at any time after
the Effective Date, New Tower A LP and New Tower A Corp. will be
contractually obligated (a) to agree to a modification of the automatic
stay to permit, at Sanwa's option, Sanwa to exercise its foreclosure and
related rights, and (b) to enter into a cash collateral stipulation
providing for the application of revenues in accordance with the cash
management system at all times during the pendency of any bankruptcy
proceeding, except that property management fees will be reduced by 50% and
no asset management fees will be paid. In the event Sanwa files a motion
for a modification of the automatic stay in accordance with the preceding
sentence and such motion is denied by the Bankruptcy Court, neither New
Tower A LP nor New Tower A Corp. shall have the right to seek any extension
of exclusivity in any such bankruptcy proceeding without the prior approval
of Sanwa.
18.8. Tower B Transactions.
18.8.1. Reorganization of Tower B Entities.
On the Effective Date, Tower B Co. and Tower B Holding I will be
dissolved and reconstituted as New York general partnerships and will bear
the same names. Pursuant to the Restructuring Transactions, BPHI will own
indirectly (through Tower B Co. and Tower B Holding I) a portion of the
Class A Interests. On the Effective Date, WFC Tower B Co. LP, a Delaware
limited partnership, will be formed by the filing of a certificate of
limited partnership with the
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Delaware Secretary of State. In accordance with the Restructuring
Transactions, WFC Tower B Co. LP will own Tower B. Newco LP will own
indirectly (through WFC Tower B Holding Co. LP) a 99% limited partner
interest in WFC Tower B Co. LP. The 1% general partner interest in WFC
Tower B Co. LP will be owned by WFC Tower B GP Corp., a subsidiary wholly
owned by one or more of the Co-Proponents. The partners in WFC Tower B Co.
LP shall be restricted from transferring or pledging their respective
interests in WFC Tower B Co. LP pursuant to a partnership agreement of WFC
Tower B Co. LP to be entered into by such partners as of the Effective
Date; provided, however, that such restrictions (other than any
restrictions reasonably acceptable to the representative of the holder(s)
of the Zero Coupon Note) will not apply to any interests in WFC Tower B Co.
issued pursuant to, and in satisfaction of, the Zero Coupon Note, unless
prior to such issuance, the general partner of WFC Tower B Co. and the
representative of the holder(s) of the Zero Coupon Note reasonably
determine that such restrictions are necessary to permit WFC Tower B Co. to
lack free transferability of interests for purposes of being classified as
a partnership for federal income tax purposes. The partnership agreement
for WFC Tower B Co. LP and WFC Tower B Holding Co. LP will be in scope and
substance necessary to effect the ML Lease Securitization (as defined in
the Tower B Co. Plan). Notwithstanding the foregoing, to the extent
required to effect the ML Lease Securitization (as defined in the Tower B
Co. Plan), Tower B Co. and Tower B Holding I may be reorganized as limited
liability companies, not limited partnerships, having the same ownership
structure as set forth in this section 18.8.1 and/or the ownership
structure of Tower B Co. and its direct and indirect partners may be
revised.
18.9. Tower D Transactions.
18.9.1. Ownership of Tower D.
On the Effective Date, Tower D Co. and Tower D Holding I will
each be reconstituted as Delaware limited partnerships named WFC Tower D
Co. LP and New Tower D Holding I LP, respectively, by the filing of
certificates of limited partnership with the Delaware Secretary of State.
Tower D Holding II will be reconstituted as a Delaware limited partnership
named New Tower D Holding II LP. By the Effective Date, WFC Tower D GP
Corp. will be organized as a Delaware corporation by the filing of a
certificate of incorporation with the Delaware Secretary of State. The
board of directors of WFC Tower D GP Corp. will have at
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least five (5) directors. Newco LP will own all of the outstanding stock of
WFC Tower D GP Corp. WFC Tower D Co. LP will own Tower D. New Tower D
Holding I LP will hold a 48% limited partner interest, New Tower D Holding
II LP will hold a 2% limited partner interest, WFC Tower D GP Corp. will
hold a 1% general partner interest, Merrill Lynch Tower D Partner will hold
a 48.1% limited partner interest, and an affiliate of Merrill Lynch Tower D
Partner will hold a .9% general partner interest in WFC Tower D Co. LP.
Newco LP will hold a 99% limited partner interest and Tower D Holding I
Corp. will hold a 1% sole general partner interest in New Tower D Holding I
LP. Such partners shall be restricted from transferring or pledging their
respective partner interests in New Tower D Holding I LP pursuant to a
partnership agreement of New Tower D Holding I LP to be entered into by
such partners as of the Effective Date. Newco LP will hold a 49.25% limited
partner interest and Devco GP will hold a 50.75% sole general partner
interest in New Tower D Holding II LP. The board of directors of Tower D
Holding I Corp. will have at least five (5) directors. Notwithstanding the
foregoing, to the extent required to effect the refinancing of Tower D,
Tower D Co. and Tower D Holding I may be reorganized as limited liability
companies, not limited partnerships, having the same ownership structure as
set forth in this section 18.9.1 and/or the ownership structure of Tower D
Co. and its direct and indirect partners may be revised.
18.9.2. Tower D Refinancing.
On the Effective Date, the Tower D Financing Documents shall be
executed and delivered.
18.10. WFC Retailco Holding Corp. and WFC Retailco LP.
By the Effective Date, WFC Retailco Holding Corp. will be
organized as a Delaware corporation by the filing of a certificate of
incorporation with the Delaware Secretary of State. Devco GP will hold 100%
of the outstanding stock of WFC Retailco Holding Corp. The board of
directors of WFC Retailco Holding Corp. will have at least five (5)
directors. By the Effective Date, WFC Retailco LP will be organized as a
Delaware limited partnership by the filing of a certificate of limited
partnership with the Delaware Secretary of State. Newco LP will hold a 99%
limited partner interest and WFC Retailco Holding Corp. will hold a 1%
general partner interest in WFC Retailco LP. Such partners will be
restricted from transferring or pledging their respective interests in WFC
Retailco LP pursuant to a
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partnership agreement of WFC Retailco LP to be entered into by such
partners as of the Effective Date.
18.11. Transfers in Furtherance of the Plan.
Prior to the proposal of, and in furtherance of, this Plan, the
Non-Core Properties listed below were either returned to lenders in
exchange for debt forgiveness or sold to third parties:
One Corporate Center
One Financial Plaza
Wood Ranch
1999 Bryan Street
Cypress Creek
KOIN Center
320 Park Avenue
Winter Park
Plaza Olympia
Place Chino Hills
400 South Hope Street
La Santa Maria
1250 Broadway
18.12. Co-Proponents' Capital Infusion.
On the Effective Date, subject to the satisfaction or waiver of
the conditions precedent set forth in section 22.2 hereof, the
Co-Proponents shall contribute to the capital of Newco LP $75,000,000 in
Cash. Notwithstanding the foregoing, the Co-Proponents' Capital Infusion is
subject to the internal approvals (to the extent required) of the
Co-Proponents, confirmation of receipt of which is to be provided by the
Co-Proponents to the Debtors at or prior to the hearing to approve the
Disclosure Statement.
18.13. Restrictions on Transferability and Assignability
of Class A Interests and Class B Interests and on
Admission of Substitute Partners; Tag-Along Rights.
The Newco LP Partnership Agreement will prohibit a partner of
Newco LP from assigning its partner interest in Newco LP to an assignee
that is not a "United States person" (within the meaning of section
7701(a)(30) of the IRC), without the prior written consent of Managing GP,
which consent shall be granted unless Managing GP determines that the
withholding obligations to which Newco LP reasonably may be expected to be
subject as a result of the ownership of such partner interest by such
assignee, when taken together
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with such withholding obligations with respect to all other Newco LP
partner interests held by non-United States persons, would have a material
adverse effect on the ability of Newco LP and its Affiliates to satisfy
their debt service requirements and other contractual obligations and
operational requirements.
Notwithstanding any other provision of this Plan, the Newco LP
Partnership Agreement will prohibit any direct or indirect transfer of any
partner interest that would result in a "termination" of Newco LP under
section 708 of the IRC, without the prior written consent of Managing GP.
The Newco LP Partnership Agreement will require that Managing GP
(and any successor general partner) maintain at least a 1% general partner
interest in the capital of, and in all items of income, gain, loss,
deduction and credit of, Newco LP.
The Newco LP Partnership Agreement will prohibit Managing GP's
withdrawal from Newco LP in certain circumstances and also will prohibit
the admission of an assignee of a partner interest in Newco LP (including a
permitted assignee who is a non-United States person) as a substitute
partner of Newco LP without the consent of a majority in interest of the
non-transferring partners (after taking into account the exercise of
tag-along rights). Pending the assignee's admission as a substitute partner
of Newco LP, and upon receipt of written notice by Managing GP of the
transfer, the assignee shall be entitled to share in all allocations and
distributions of Newco LP (including liquidating distributions) on the same
basis as a partner. Unless and until the assignee is admitted as a
substitute partner of Newco LP, the assignee shall not be entitled to
exercise any other rights of a partner of Newco LP, including the right to
vote on any matter submitted to the partners for approval, and the assignor
shall retain the right to vote the partner interests so assigned; provided,
however, that such restriction on substitution will not apply with respect
to any permitted assignee of a Class A Interest distributed to holders of
Unaffiliated Unsecured Claims or JMB pursuant to the Plan or upon
conversion of the Convertible Note Interests, unless prior to the Effective
Date the Co-Proponents, on the one hand, and the Creditors' Committee or
JMB, on the other hand (as the case may be), reasonably determine that such
restriction is necessary to permit Newco LP to lack free transferability of
interests for purposes of being classified as a partnership for federal
income tax purposes; and, provided, further, that
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the Newco LP Partnership Agreement will provide for the elimination of such
restriction on substitution with respect to all permitted assignees in the
event that Treasury Regulations are adopted to replace or supplement, with
an elective regime, the existing Treasury Regulations for classifying
certain business organizations, and such elimination or supplementation
does not adversely affect the partnership status of Newco LP from its
inception.
In addition, the Newco LP Partnership Agreement will provide for
tag-along rights as follows. If any holder of Equity Interests in Newco LP
(alone or together with any other such holder) proposes to sell (in such
capacity, the "Selling Holder") a Controlling Interest in Newco LP to a
third party investor pursuant to a bona fide offer, the Selling Holder will
give each other holder of Equity Interests in Newco LP written notice of
such proposed sale (the "Tag-Along Notice"), and each such other holder
will have the right (subject to the restrictions on transfer and the
provisions on assignees' rights in the first four paragraphs of this
section 18.13) to participate in such proposed sale on the same terms and
conditions offered by such investor. The Tag-Along Notice will be required
to set forth (i) the identity of the third party investor, (ii) the total
percentage of Equity Interests in Newco LP proposed to be sold by the
Selling Holder to such investor, (iii) the purchase price for such
interests (which may only be paid in cash) and (iv) the other material
terms of such proposed sale. Such right to participate in the proposed sale
will be exercisable by written notice to the Selling Holder given not later
than ten (10) days after receipt of a Tag-Along Notice, which written
notice must set forth the percentage of Equity Interests in Newco LP
proposed to be sold by the holder exercising such right, which percentage
may be equal to or less than the total percentage of Equity Interests held
by the Selling Holder and proposed to be sold by the Selling Holder to the
third-party investor (the "Exercising Tag-Along Holder"). The percentage of
Equity Interests in Newco LP to be sold in such proposed sale by any
participating holder of Equity Interests in Newco LP (including the Selling
Holder) will be determined by multiplying the total percentage of Equity
Interests in Newco LP originally proposed to be sold by the Selling Holder
(which total percentage of Equity Interests in Newco LP may be increased,
in the third party investor's discretion, so as to allow the sale of the
total percentage of Equity Interests in Newco LP originally proposed to be
sold by the Selling Holder together with the total percentage of Equity
Interests in Newco LP proposed to be
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sold by all of the Exercising Tag-Along Holders as set forth in their
exercise notices) by a fraction, the numerator of which will be the
percentage of Equity Interests in Newco LP proposed to be sold by such
participating holder and the denominator of which will be the total
percentage of Equity Interests in Newco LP originally proposed to be sold
by the Selling Holder together with the total percentage of Equity
Interests in Newco LP proposed to be sold by all of the Exercising
Tag-Along Holders as set forth in their exercise notices.
If the Selling Holder proposes to sell less than a Controlling
Interest but at least 35% of the total Equity Interests in Newco LP to a
third party investor pursuant to a bona fide offer, the Selling Holder will
give each other holder of at least 4% of the total Equity Interests a Tag-
Along Notice, and each such other holder will have the right (subject to
the restrictions on transfer and the provisions on assignees' rights in the
first four paragraphs of this section 18.13) to participate in such
proposed sale on the same terms and conditions offered by such investor.
Such right will be exercisable in the same manner and within the same
period as described in the immediately preceding paragraph. In addition,
the percentage of Equity Interests in Newco LP to be sold by any
participating holder (including the Selling Holder) will be determined in
the same manner as described in the immediately preceding paragraph. In the
event a holder of Equity Interests in Newco LP entitled to tag-along rights
in accordance with this section 18.13 exercises such rights and the
purchaser purchases a portion, but not all, of such holder's Equity
Interests in Newco LP pursuant to this section 18.13, such holder shall
thereafter continue to be entitled to tag-along rights to sell its
remaining Equity Interest in Newco LP in connection with a sale of less
than a Controlling Interest but at least 35% of the total Equity Interests
in Newco LP notwithstanding that, at the time of such sale, such holder
holds less that 4% of the total Equity Interests of Newco LP.
In connection with the foregoing rights, notwithstanding the
terms of the fourth paragraph of this section 18.13, JMB will be provided
with an opportunity to exchange its Equity Interests in 245 Holding LP for
Class A Interests to allow it to participate in any proposed sale by a
Selling Holder giving rise to such rights (on the same terms and subject to
the same conditions applicable to the other holders of Class A Interests
(including the 4% minimum percentage ownership requirement described in the
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immediately preceding paragraph)), provided that any tax or other cost of
doing so will be borne by JMB. If JMB does not make any such exchange, it
still may exercise the foregoing rights (subject to the restrictions on
transfer and the provisions on assignees' rights in the first four
paragraphs of this section 18.13) and participate in any such proposed sale
(on the same terms and subject to the same conditions as if it were a
direct holder of Class A Interests) if and only to the extent that the
third party investor agrees to purchase JMB's Equity Interests in 245
Holding LP (the percentage of such Equity Interests and the 4% minimum
percentage ownership requirement to be determined as if such interests had
been exchanged for Class A Interests). If, after the Effective Date, 245
Holding LP's ownership interest in Newco LP falls below 4% solely by reason
of a subsequent issuance of equity or securities exchangeable for or
convertible into equity of Newco LP, JMB shall be entitled to tag-along
rights notwithstanding the 4% minimum percentage ownership requirement.
18.14. Letter of Credit Transactions.
On the Effective Date, Newco LP and Sterling National will
execute and deliver the Sterling National Amended and Restated
Reimbursement Agreement.
18.15. Execution of CIBC Amended and
Restated Lost Note Indemnity Agreement.
On the Effective Date, Newco LP and CIBC will execute and deliver
the CIBC Amended and Restated Lost Note Indemnity Agreement.
18.16. Abandonment of Interest in Olympia &
York (U.S.) Holdings Company, L.P.
By the Effective Date, Realty Corp., as a Debtor and a Debtor in
Possession, shall abandon its Equity Interest in U.S. Holdings to U.S.
Holdings.
18.17. Distributions under this Plan.
Except as provided herein and in the January 12th Settlement
Agreement, on the Effective Date, the Disbursing Agent shall make, or shall
make adequate reserve for, the distributions required to be made under this
Plan.
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SECTION 19. PROVISIONS GOVERNING DISTRIBUTIONS.
19.1. Date of Distributions.
Any distributions and deliveries to be made hereunder shall be
made on the Effective Date or as soon as practicable thereafter. If any
payment or act under this Plan is required to be made or performed on a
date that is not a Business Day, then the making of such payment or the
performance of such act may be completed on the next succeeding Business
Day, but shall be deemed to have been completed as of the required date.
19.2. Delivery of Distributions.
Subject to Rule 9010 of the Bankruptcy Rules, distributions to
holders of Allowed Claims and Allowed Equity Interests shall be made at the
address of each such holder as set forth on the Schedules filed with the
Bankruptcy Court, unless superseded by the address set forth on proofs of
claim or proofs of equity interest filed by such holders (or at the last
known address of such a holder if no proof of claim or proof of equity
interest is filed or if the Debtors have been notified in writing of a
change of address). If any distribution to any holder is returned as
undeliverable, the Disbursing Agent shall use reasonable efforts to
determine the current address of such holder, but no distribution to such
holder shall be made unless and until the Disbursing Agent has determined
the then current address of such holder, at which time such distribution
shall be made to such holder without interest. Amounts in respect of any
undeliverable distributions made through a Disbursing Agent shall be
returned to the Disbursing Agent making such distribution until such
distribution is claimed. If no proofs of claim are filed and the Schedules
filed with the Bankruptcy Court fail to state addresses for holders of
Allowed Claims, such Allowed Claims shall be deemed unclaimed property
under section 347(b) of the Bankruptcy Code at the expiration of one year
from the first date on which delivery of that distribution was reasonably
attempted pursuant hereto. After such date, all unclaimed property shall be
transferred to Newco LP and the Claim of any holder to such property shall
be discharged and forever barred.
19.3. Time Bar to Cash Payments.
Checks issued by the Disbursing Agent on account of Allowed
Claims shall be null and void if not negotiated within sixty (60) days
after the date of issuance thereof.
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Requests for reissuance of any check shall be made in writing directly to
the Disbursing Agent by the holder of the Allowed Claim with respect to
which such check originally was issued. Any Claim in respect of such a
voided check shall be made in writing on or before the later of the second
anniversary of the Effective Date or ninety (90) days after the date of
issuance of such check. After such date, all Claims in respect of void
checks shall be discharged and forever barred.
19.4. Manner of Payment Under this Plan.
At the option of the Debtors, any Cash payment to be made by any
of the Debtors pursuant to this Plan may be made by a check or wire
transfer or as otherwise required or provided in applicable agreements.
19.5. Cap on Distributions.
In no event shall a holder of an Allowed Claim or an Allowed
Equity Interest receive a distribution on account of such Allowed Claim or
Allowed Equity Interest of a value, as of the Confirmation Date, greater
than such Allowed Claim or Allowed Equity Interest.
SECTION 20. PROCEDURES FOR RESOLVING AND TREATING
DISPUTED CLAIMS UNDER THIS PLAN.
20.1. Prosecution of Objections.
On or before the Confirmation Date, the Debtors shall notify each
holder of a Claim filed with the Bankruptcy Court with respect to which any
of the Debtors disputes liability in whole or in part on such Claim if the
Debtors have not notified such holder of such dispute before such date.
Prior to the Effective Date, the Debtors will be responsible for pursuing
any objection to the allowance of any such Claim with respect to which such
notice was provided. From and after the Effective Date, Newco LP will be
responsible for pursuing any objection to the allowance of any such Claim
with respect to which such notice was provided. Newco LP may compromise and
settle any objections to Claims after notice and a hearing, subject to any
objections to such settlement that may be interposed. The Bankruptcy Court
may approve any compromises and settlements in accordance with Rule 9019(a)
of the Bankruptcy Rules. Unless otherwise provided herein or ordered by the
Bankruptcy Court, all objections to Claims shall be served by the Claims
Objection Deadline.
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20.2. No Distributions Pending Allowance.
Notwithstanding any other provision hereof, if any portion of a
Claim is a Disputed Claim, no payment or distribution provided hereunder
shall be made on account of the portion of such Claim that is a Disputed
Claim unless and until such Disputed Claim becomes an Allowed Claim, but
the payment or distribution provided hereunder shall be made on account of
the portion of such Claim that is an Allowed Claim.
20.3. Claims Reserves.
20.3.1. Disputed Claims Cash Reserve.
On the Effective Date, the Disbursing Agent shall deposit in one
or more segregated accounts as the Disputed Claims Cash Reserve an amount
of Cash required to pay in full all Disputed Administrative Expense Claims
and Disputed Priority Non-Tax Claims. With respect to Disputed Claims in SF
Holdings Class 2, Devco Canada Class 3, Equity Canada Class 3, Consolidated
OLP Class 5, Tower A Co. Class 5, Consolidated 245 Class 7 and Tower B
Leaseco Class 3, the Disbursing Agent shall reserve, on account of the
Disputed Claims in such Classes, that amount of Cash required to provide
distributions on account of such Disputed Claims as if such Disputed Claims
were Allowed Claims on the Effective Date. The Cash held in the Disputed
Claims Cash Reserve, together with any net earnings thereon, shall be held
in trust for the benefit of holders of such Disputed Claims pending
determination of their entitlement thereto. The Disbursing Agent will
establish a reserve for Disputed Priority Tax Claims only if directed by
order of the Bankruptcy Court.
20.3.2. Subclass 7.11.1 Disputed
Claims Debt/Equity Escrow.
On the Effective Date, the Disbursing Agent shall transfer to the
Subclass 7.11.1 Disputed Claims Debt/Equity Escrow an amount of Class A
Interests that would be distributable on account of the aggregate amount of
Disputed Claims in section 7.11.1 as if they were Allowed Unaffiliated
Unsecured Claims in their respective Maximum Allowable Amounts on the
Effective Date. In addition, on the Effective Date, the Disbursing Agent
shall transfer to the Subclass 7.11.1 Disputed Claims Debt/Equity Escrow
the Disputed Claims Convertible Note Interests, which will constitute that
number of the Convertible Note Interests
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which is equal to the amount that would be distributable on account of the
aggregate amount of Disputed Claims in section 7.11.1 as if they were
Allowed Unaffiliated Unsecured Claims in their respective Maximum Allowable
Amounts on the Effective Date. The Disbursing Agent shall serve as the
escrow agent for the Subclass 7.11.1 Disputed Claims Debt/Equity Escrow.
Dividends, distributions, interest payments and other payments payable on
such Class A Interests and the Disputed Claims Convertible Note Interests
shall be paid into the Subclass 7.11.1 Disputed Claims Debt/Equity Escrow.
The Class A Interests and the Disputed Claims Convertible Note Interests
(and any proceeds or net earnings thereon) held in the Subclass 7.11.1
Disputed Claims Debt/Equity Escrow shall be held in trust for the holders
of Disputed Claims as of the Effective Date in section 7.11.1 pending
determination of their entitlement thereto. Each holder of a Disputed Claim
as of the Effective Date in section 7.11.1 entitled to be distributed Class
A Interests and Convertible Note Interests shall not have the rights of
holders (including voting rights) with respect to such interests until such
time, if any, that such interests are released to such holder in accordance
with section 20.4 hereof.
For all purposes, but subject to the remainder of this paragraph,
the Disbursing Agent, as escrow agent, shall be deemed the holder of all
Cash, securities and other interests held in the Subclass 7.11.1 Disputed
Claims Debt/Equity Escrow pending their release therefrom; provided,
however, that (a) the Disbursing Agent shall abstain from exercising any
and all voting rights in respect of the interests held in the Subclass
7.11.1 Disputed Claims Debt/Equity Escrow unless otherwise ordered by the
Bankruptcy Court on motion of a holder of a Disputed Claim as of the
Effective Date that, if Allowed, would receive distributions as a Claim in
Consolidated Devco Class 7.11 and (b) with respect to each opportunity to
exercise any right regarding the Convertible Note Interests, the Disbursing
Agent shall be deemed to have exercised all such rights regarding the
Convertible Note Interests held in the Subclass 7.11.1 Disputed Claims
Debt/Equity Escrow (including, without limitation, with respect to
amendments, waivers, enforcement of remedies, acceptances of non-mandatory
pre-payments and conversions in response to mandatory or non-mandatory
notices of pre-payments, but solely to the extent of same) in the same
manner and proportion as the acceptances, enforcement and/or conversions
(as applicable) made by the actual holders of the Convertible Note
Interests entitled to exercise such
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right; provided further that, unless otherwise ordered by the Bankruptcy
Court upon motion of a holder of a Disputed Claim as of the Effective Date
in subclass 7.11.1, the Disbursing Agent shall not exercise any conversion
rights relating to the Convertible Note Interests other than as
specifically described above in response to and to the extent of mandatory
or non-mandatory notices of pre-payments.
20.3.3. Class 8.6 Disputed
Claims Equity Escrow.
On the Effective Date, the Disbursing Agent shall transfer to the
Class 8.6 Disputed Claims Equity Escrow an amount of Class A Interests and
Class B Interests that would be distributable in accordance with the
Restructuring Transactions and section 8.6 hereof on account of the
aggregate amount of Disputed Claims in Consolidated Realty Corp. Class 6 as
if they were Allowed Claims in their respective Maximum Allowable Amounts
on the Effective Date. The Disbursing Agent shall serve as the escrow agent
for the Class 8.6 Disputed Claims Equity Escrow. Dividends, distributions
and other payments payable on such Class A Interests and Class B Interests
shall be paid into the Class 8.6 Disputed Claims Equity Escrow. The Class A
Interests and Class B Interests (and any proceeds or net earnings thereon)
held in the Class 8.6 Disputed Claims Equity Escrow shall be held in trust
for the holders of Disputed Claims in Consolidated Realty Corp. Class 6
pending determination of their entitlement thereto and all holders of
previously Allowed Claims in Consolidated Realty Corp. Class 6. Each holder
of a Disputed Claim in Class 8.6 entitled to be distributed Class A
Interests and Class B Interests shall not have the rights of holders
(including voting rights) with respect to such interests until such time,
if any, that such interests are released to such holder in accordance with
section 20.4. hereof.
For all purposes, but subject to the remainder of this paragraph,
the Disbursing Agent, as escrow agent, shall be deemed the holder of all
Cash, securities and other interests held in the Class 8.6 Disputed Claims
Equity Escrow pending their release therefrom; provided, however, that the
Disbursing Agent shall abstain from exercising any and all voting rights in
respect of the interests held in the Class 8.6 Disputed Claims Equity
Escrow unless otherwise ordered by the Bankruptcy Court on motion of a
holder of a Disputed Claim that, if Allowed, would receive distributions as
a Claim in Consolidated Realty Corp. Class 6.
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20.3.4. Funding of Costs of the Claims Reserves.
The Disbursing Agent shall maintain a reserve within the Disputed
Claims Cash Reserve, the Subclass 7.11.1 Disputed Claims Debt/Equity Escrow
and the Class 8.6 Disputed Claims Equity Escrow to fund the payment of all
taxes payable by such reserves and escrow accounts in respect of earnings
chargeable to the relevant reserve or escrow and all reasonable and
customary out-of-pocket costs and expenses of maintaining the reserves and
escrows; provided, however, that the reserves shall not be charged for
attorneys' fees and other similar costs associated with prosecuting
Disputed Claims. The Disbursing Agent shall pay, or cause to be paid, out
of the funds held in such reserve and escrow accounts, any such taxes. The
Disbursing Agent shall also file or cause to be filed any tax or
information returns related to the Disputed Claims Cash Reserve, the
Subclass 7.11.1 Disputed Claims Debt/Equity Escrow and the Class 8.6
Disputed Claims Equity Escrow that are required by any governmental unit.
In the event a reserve established pursuant to this section 20 does not
have sufficient Cash to make the required tax payments described in the
first sentence of this section 20.3.4, Newco LP shall provide such reserve
with a Tax Advance. If and when a claimant (whether by reason of a Disputed
Claim becoming an Allowed Claim or by reason of a Catch-Up Cash
Distribution) becomes entitled to a distribution in Cash from a reserve,
the holder of such Allowed Claim shall be charged such holder's pro rata
portion of the Tax Advance and the Disbursing Agent shall be entitled to
withhold from such holder's distribution the amount required to pay such
pro rata portion of the Tax Advance. If and when a claimant (whether by
reason of a Disputed Claim becoming an Allowed Claim or by reason of a
Catch-Up Equity Distribution) becomes entitled to a distribution of an
interest or share from a reserve, the holder of such Allowed Claim shall
have thirty (30) Business Days in which to pay in Cash such holder's pro
rata portion of the Tax Advance. If a payment in full in Cash is not
received in such thirty (30) day period, Newco LP shall be entitled to
reduce and permanently adjust the partner interests otherwise distributable
to such holder, accordingly.
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20.4. Distributions After Allowance.
Payments and distributions to each holder of a Disputed Claim or
any other Claim that is not an Allowed Claim, to the extent that such Claim
ultimately becomes an Allowed Claim, shall be made in accordance with the
provisions of this Plan, including the provision governing the class of
Claims in which such Claim is classified. As soon as practicable after the
date that the order or judgment of the Bankruptcy Court allowing any
Disputed Claim or any other Claim that is not an Allowed Claim becomes a
Final Order, the Disbursing Agent shall distribute to the holder of such
Claim any payment or property that would have been distributed to such
holder if the Claim had been an Allowed Claim on the Effective Date, plus
any payments or other distributions that would have been made on account of
such Allowed Claim from the Effective Date through such date, plus the
portion of the net earnings attributable thereto, less any amounts or
distribution permitted to be deducted or withheld pursuant to this section
20 and section 18 hereof.
20.5. Distributions After Disallowance.
With respect to the Disputed Claims Cash Reserve and the Class
8.6 Disputed Claims Equity Escrow, after the Effective Date and
semi-annually, the Disbursing Agent shall determine the Aggregate
Disallowed Amount, if any, applicable to each class of Claims. As soon as
practicable after the Aggregate Disallowed Amount is determined for each
semi-annual period, the Disbursing Agent shall distribute to each holder of
an Allowed Claim in such classes entitled to be distributed Cash under this
Plan, a payment in Cash from the Disputed Claims Cash Reserve equal to such
holder's Catch-Up Cash Distribution. With respect to each class of Claims
entitled to be distributed Class A Interests and Class B Interests under
this Plan, as soon as practicable after the Aggregate Disallowed Amount is
determined for each semi-annual period, the Disbursing Agent shall transfer
from the Class 8.6 Disputed Claims Equity Escrow each such holder's
Catch-Up Equity Distribution.
With respect to the Subclass 7.11.1 Disputed Claims Debt/Equity
Escrow, after the Effective Date and semi-annually, the Disbursing Agent
shall determine the Aggregate Disallowed Amount, if any, applicable to such
escrow. As soon as practicable after the Aggregate Disallowed Amount is
determined for each semi-annual period, the Disbursing Agent shall
distribute to each of the Co-
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Proponents, such Co-Proponent's allocable share of the Aggregate Disallowed
Amount relating to the Subclass 7.11.1 Disputed Claims Debt/Equity Escrow.
Immediately upon receipt of the Aggregate Disallowed Amount, each of the
Co-Proponents shall exercise its right to convert the Convertible Note
Interests distributed to them pursuant to this paragraph into Class A
Interests.
In the event that any Cash held in the Disputed Claims Cash
Reserve remains after all Claims have been allowed or disallowed, such Cash
shall be transferred to Newco LP.
SECTION 21. PROVISIONS GOVERNING EXECUTORY CONTRACTS
AND UNEXPIRED LEASES UNDER THIS PLAN.
21.1. General Treatment.
This Plan constitutes a motion by the Debtors to reject, as of
the Confirmation Date, all executory contracts and unexpired leases to
which any of the Debtors is a party, except for an executory contract or
unexpired lease that (a) has been assumed pursuant to a Final Order prior
to the Confirmation Date (including the ground leases between Tower A Co.
and Battery Park City Authority and Tower B Co. and Battery Park City
Authority), (b) is specifically listed on Schedule 21.1 hereto (which
schedule will be filed with the Bankruptcy Court one week prior to the
Confirmation Hearing), (c) is the subject of a separate motion filed under
section 365 of the Bankruptcy Code by any of the Debtors and pending on the
Confirmation Date or (d) has Merrill Lynch as a party, with respect to
which Merrill Lynch has not consented to rejection or has consented to
assumption, pursuant to section 4.4 hereof. For purposes hereof and subject
to the terms of section 4.4 hereof, each executory contract and unexpired
lease listed on Schedule 21.1 hereto that relates to the use or occupancy
of real property shall include modifications, amendments, supplements,
restatements or other agreements made directly or indirectly by any
agreement, instrument or other document that in any manner affects such
executory contract or unexpired lease, without regard to whether such
agreement, instrument or other document is listed on Schedule 21.1 hereto,
unless any of the foregoing agreements is rejected.
Certain of the Debtors, including Devco, 245 Park Co. and Tower A
Co., are contributing sponsors to the Olympia & York (U.S.) Development
Company, L.P. Retirement
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Plan, as amended, (the "Pension Plan"). The Pension Plan is a multiple
employer pension plan covered by ERISA. Newco LP will assume the Pension
Plan and administer the Pension Plan in accordance with ERISA. Newco LP
will comply with all funding and other requirements of ERISA. Newco LP will
be responsible for any liability resulting from the termination of the
Pension Plan. If the Pension Plan has not been terminated prior to the
Confirmation Date, any claims by the Pension Plan or the PBGC will be
treated as arising after the Confirmation Date as an obligation of Newco
LP. If the Pension Plan terminates after the Confirmation Date, Newco LP
will be responsible for all liabilities under 29 U.S.C. 1362 (b) and (c).
21.2. Amendments to Schedule; Effect of Amendments.
Subject to section 4.4 hereof, the Debtors shall assume and, as
applicable, assign each of the executory contracts and unexpired leases
listed on Schedule 21.1 hereto; provided, however, that the Debtors may, at
any time on or before the Confirmation Date, with the consent of the
Co-Proponents (which consent shall not be unreasonably withheld), amend
Schedule 21.1 hereto to delete therefrom or add thereto any executory
contract or unexpired lease, in which event such executory contract or
unexpired lease shall be deemed to be rejected or assumed, respectively, as
of the Confirmation Date. The Debtors shall provide notice of any
amendments to Schedule 21.1 hereto to the parties to the executory
contracts or unexpired leases affected thereby and to parties on the
primary service list or master service list, as applicable. The fact that
any contract or lease is scheduled on Schedule 21.1 hereto shall not
constitute or be construed to constitute an admission that such contract or
lease is an executory contract or unexpired lease within the meaning of
section 365 of the Bankruptcy Code or that any Debtor or any successor in
interest of any Debtor has any Liability thereunder. With respect to
assumption of any executory contract or unexpired lease listed on Schedule
21.1, the payment of the cure amount listed on such Schedule with respect
to such executory contract or unexpired lease shall be deemed a cure of any
and all defaults relating to such executory contract or unexpired lease;
provided, however, that the foregoing shall not apply to executory
contracts and unexpired leases to which Merrill Lynch is a party.
21.3. Bar to Rejection Damages.
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If the rejection of an executory contract or unexpired lease by
the Debtors results in damages to the other party or parties to such
contract or lease, a Claim for such damages, if not heretofore evidenced by
a filed proof of claim, shall be forever barred and shall not be
enforceable against the Debtors, or their properties or their interests in
property or agents, successors or assigns, unless a proof of claim is filed
with the Bankruptcy Court and served upon counsel for the Debtors on or
before thirty (30) days after the earlier to occur of (a) the Confirmation
Date and (b) the entry of an order by the Bankruptcy Court authorizing
rejection of a particular executory contract or lease.
SECTION 22. CONDITIONS PRECEDENT TO CONFIRMATION
DATE AND EFFECTIVE DATE.
22.1. Conditions Precedent to Confirmation of this Plan.
The confirmation of this Plan is subject to satisfaction of the
following conditions precedent:
22.1.1. Finality of January 12th Settlement Agreement
Order. If the January 12th Settlement Agreement shall have been approved
by order of the Bankruptcy Court prior to the Confirmation Hearing, the
Clerk of the Bankruptcy Court shall have entered the January 12th
Settlement Agreement Order and the January 12th Settlement Agreement Order
shall have become a Final Order.
22.1.2. Entry of Confirmation Order. The Clerk of the
Bankruptcy Court shall have entered the Confirmation Order, which shall,
among other things:
(i) decree that the transfers contemplated
hereunder shall be free and clear of all Claims, Liens and encumbrances,
except as expressly provided herein;
(ii) decree that the Confirmation Order shall
supersede any Bankruptcy Court orders issued prior to the Confirmation Date
that may be inconsistent with the Confirmation Order;
(iii) authorize the implementation of this
Plan in accordance with its terms;
(iv) provide that any transfers effected or to be
effected under this Plan (including transfers relating
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to, or the recording of mortgages in connection with, the Tower B Financing
and the Tower D Financing) shall be and are exempt from New York State and
New York City transfer taxes, mortgage recording taxes, and any other stamp
or similar tax under section 1146(c) of the Bankruptcy Code;
(v) approve the BPHI Settlement and each of the
terms thereof in all respects (as provided in section 4.3 hereof);
(vi) approve the Merrill Lynch Settlement
and each of the terms thereof in all respects (as provided in section 4.4
hereof);
(vii) if the January 12th Settlement
Agreement has not been approved by a Final Order prior to the commencement
of the Confirmation Hearing, approve the January 12th Settlement Agreement
pursuant to decretal provisions reasonably satisfactory in form and
substance to the Club Loan Transferors and the additional relief requested
in section 4.2 hereof in all respects; provided, however, that the transfer
of the O&Y Affiliates' ownership interests in 11601 Wilshire contemplated
by the January 12th Settlement Agreement may be approved by a separate
order of the Bankruptcy Court entered on the Confirmation Date;
(viii) approve the other settlements,
trans-actions and agreements to be effected pursuant to this Plan in all
respects;
(ix) approve the indemnification of the Reichmann
Entities from any Claims or Liabilities arising out of the transfer or
subordination of the Reichmann Bank Claims in accordance with section 4.7
hereof; and
(x) provide that if this Plan is not consummated,
the Confirmation Order and all findings of fact and conclusions of law
relating thereto shall be null and void and the Debtors, the Co-Proponents,
the Creditors' Committee and other holders of Claims and Equity Interests,
in relation to one another, shall stand in the same position as if this
Plan had never been filed; provided, however, that each and every provision
of the January 12th Settlement Agreement Order (irrespective of whether
such order is part of the Confirmation Order) shall remain in full force
and effect even if the Plan is not consummated.
22.1.3. BPHI Ownership. Carena and certain of its
Affiliates shall own of record and beneficially 100% of
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BPHI, and evidence thereof reasonably satisfactory to the Debtors shall
have been presented to the Debtors.
22.1.4. DIP Loan. A default under the DIP Loan shall
not have occurred and be continuing.
22.1.5. Entry of an Order Confirming the 970 Plan. The
Clerk of the Bankruptcy Court shall have entered an order confirming the
970 Plan.
22.1.6. Entry of an Order Confirming the Tower B Co.
Plan. The Clerk of the Bankruptcy Court shall have entered an order
confirming the Tower B Co. Plan.
22.1.7. Intentionally Deleted.
22.1.8. Material Adverse Change. There shall not have
been a change in circumstances after the date of approval of the Disclosure
Statement by the Bankruptcy Court that shall have caused a material adverse
change in the business, assets or financial position of the Debtors on a
collective basis that would, upon consummation of the Plan, also be
materially adverse to the business, assets or liquidity of Newco LP in
comparison to (a) that projected in the pro forma balance sheet or cash
flow projection of Newco LP included in the Disclosure Statement as
approved by the Bankruptcy Court or (b) that known by the Co-Proponents as
of the date of approval of the Disclosure Statement by reason of (i) being
disclosed to the Co-Proponents in writing by the Debtors or to the
Bankruptcy Court upon notice to the Co-Proponents, or (ii) being public
information relating to market conditions that is readily available to the
Co-Proponents.
22.2. Conditions Precedent to the Effective Date of this Plan.
The occurrence of the Effective Date of this Plan is subject to
satisfaction of the following conditions precedent:
22.2.1. Ceiling on Administrative Claims and
Extraordinary Expenses. The aggregate amount of Administrative Expense
Claims for (a) substantial contribution claims under section 503(b) of the
Bankruptcy Code, (b) bonuses, success fees, other benefits or payments to
any employee of any Debtor, including officers, if payment thereof requires
further application to or approval by the Bankruptcy Court, and (c) similar
extraordinary expenses
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that require specific approval or authorization by the Bankruptcy Court
shall not, without the approval of the Co- Proponents, have exceeded
$8,800,000. Any Administrative Expense Claims of any of the Debtors which
constitute ordinary course of business corporate-level obligations
(including, without limitation, accrued but unpaid salaries, wages and
other employee-related costs) as of the Effective Date and which are not
claims included in the first sentence of this section 22.2.1 shall be
current (i.e., paid within thirty (30) days after accrual thereof) and
shall be consistent with the aggregate historical level of such
corporate-level obligations.
22.2.2. Tower D Financing Condition. The financing
necessary to fund the payments required under this Plan, including the
refinancing of the Tower D Mortgage Debt, shall have occurred.
22.2.3. Tower B Effective Date. The Closing Date (as
defined in the Tower B Co. Plan) of the Tower B Co. Plan shall have
occurred or shall occur concurrently with the Effective Date of this Plan.
22.2.4. Finality of the Confirmation Order. The Clerk
of the Bankruptcy Court shall have entered the Confirmation Order and the
Confirmation Order shall have become a Final Order.
22.2.5. Material Adverse Change. There shall not have
been a change in circumstances after the Confirmation Date that shall have
caused a material adverse change in the business, assets or financial
position of the Debtors on a collective basis that would, upon consummation
of the Plan, also be materially adverse to the business, assets or
liquidity of Newco LP in comparison to (a) that projected in the pro forma
balance sheet or cash flow projection of Newco LP included in the
Disclosure Statement as approved by the Bankruptcy Court or (b) that known
by the Co-Proponents as of the Confirmation Date by reason of (i) being
disclosed to the Co-Proponents in writing by the Debtors or to the
Bankruptcy Court upon notice to the Co-Proponents, or (ii) being public
information relating to market conditions that is readily available to the
Co- Proponents.
22.2.6. Co-Proponents' Capital Infusion. The
Co-Proponents shall have provided the Co-Proponents' Capital Infusion in
accordance with section 18.12 hereof.
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22.2.7. Consummation of the January 12th Settlement
Agreement. The January 12th Settlement Agreement shall have been fully
consummated on or prior to the Effective Date.
22.2.8. Consummation of the Merrill Lynch Settlement. The
Merrill Lynch Settlement shall have been fully consummated on the Effective
Date; provided, however, that the Merrill Lynch Escrow may have been
released prior to the Effective Date.
22.2.9. Finality of 970 Confirmation Order. The order
confirming the 970 Plan shall have become a Final Order.
22.2.10. Execution of Documents. All actions and
documents necessary to implement the provisions of this Plan to be
effectuated on or prior to the Effective Date shall be reasonably
satisfactory to the Debtors and the Co-Proponents and such actions and
documents shall have been effected or executed and delivered.
22.2.11. Intentionally Deleted.
22.2.12. Effective Date. The Effective Date must occur
by no later than December 31, 1996.
22.3. Waiver of Conditions Precedent.
Each of the conditions precedent in sections 22.1 and 22.2 hereof
may be waived, in whole or in part, or modified by written agreement among
the Debtors and the Co- Proponents to the extent such waiver is permitted
under the January 12th Settlement Agreement. Any such waiver or
modification of a condition precedent in sections 22.1 and 22.2 hereof may
be effected at any time, without notice, without leave or order of the
Bankruptcy Court and without any formal action; provided, however, that the
condition set forth in section 22.1.2(x) hereof may only be waived or
modified by the Debtors and the Co-Proponents with written notice to and
the consent of the Creditors' Committee. The condition precedent set forth
in section 22.2.3 hereof may only be waived or modified by the Debtors and
the Co- Proponents with written notice to and the consent of JMB. The
condition precedent set forth in section 22.2.8 may only be waived with the
consent of Merrill Lynch. Unless a Noteholder (as defined in the Tower B
Co. Plan) objects to confirmation of the Tower B Co. Plan or this Plan ,
the condition precedent set forth in section 22.1.6 hereof may
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only be waived or modified with written notice to and the written consent
of the Noteholders' Representative (as defined in the Tower B Co. Plan).
SECTION 23. EFFECT OF CONFIRMATION.
23.1. Reorganized Debtors' Authority.
Until the Effective Date, the Bankruptcy Court shall retain
custody and jurisdiction of the Debtors, their properties and interests in
property and their operations. On the Effective Date, the Debtors, their
properties and interests in property and their operations shall be released
from the custody and jurisdiction of the Bankruptcy Court, except as
provided in section 25.1 hereof.
23.2. Vesting and Liens.
On the Effective Date, all Liens against any property of the
Debtors, except to the extent provided in this Plan or any schedule or
exhibit hereto or in the Confirmation Order, shall be deemed extinguished
and discharged; provided, however, that the liens of the officers and
directors on the assets held in the pledge account created under the
Corporate Governance Protocol approved by the Court on July 15, 1993 shall
not be extinguished without their consent or further order of the Court. On
the Effective Date, Newco LP or its designee will be revested with the
assets, if any, of the Debtors not distributed or otherwise transferred
under this Plan free and clear of all Liabilities, except to the extent
provided in this Plan, the Tower B Co. Plan and the 970 Plan.
23.3. Discharge of the Debtors.
The rights afforded by this Plan and the treatment herein of
Claims or Equity Interests against a Debtor shall be in exchange for and in
complete satisfaction, discharge and release of all Claims or Equity
Interests against a Debtor of any nature whatsoever, including any interest
accrued or expenses incurred against such Debtor in respect thereof from
and after the Petition Date of such Debtor, and its estate, properties and
interests in property. Except as otherwise provided herein, on the
Effective Date, all Claims against and Equity Interests in the Debtors will
be fully satisfied, discharged and released in exchange for the
consideration provided hereunder. All Entities shall be enjoined and
precluded from asserting against any Debtor,
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such Debtor's successor(s), assets, properties or interests in property any
other Claims based upon any act or omission, transaction or other activity
of any kind or nature that occurred prior to the Effective Date.
23.4. Term of Injunctions or Stays.
Unless otherwise provided, all injunctions or stays provided for
in the Reorganization Cases pursuant to section 105 or 362 of the
Bankruptcy Code, or otherwise, and in existence on the Confirmation Date,
shall remain in full force and effect until the Effective Date.
SECTION 24. RELEASES, INJUNCTION AND WAIVER OF CLAIMS.
Nothing in this section 24 shall be construed to operate to
release the O&Y Releasees or any other Entity from the obligations
expressly contemplated by this Plan.
24.1. Release of the Debtors and Debtors in Possession.
Without limiting the provisions of section 23.3 of this Plan,
from and after the Effective Date, the Debtors and Debtors in Possession
are released from all Liabilities from the beginning of time.
24.2. Limited Release of O&Y Releasees.
Without limiting the release provided in section 24.1, from and
after the Effective Date, the O&Y Releasees are released from all
Liabilities in any way relating to, but solely to the extent relating to,
the Debtors, the Debtors in Possession, the Reorganization Cases, the O&Y
Affiliates, the conduct of the business and affairs of any of the Debtors,
the Debtors in Possession or the O&Y Affiliates, this Plan, the Tower B Co.
Plan, or the properties or other assets of any of the Debtors, the Debtors
in Possession or the O&Y Affiliates; provided, however, that nothing
contained in this section 24.2 shall release (a) any non-Debtor O&Y
Affiliate (except Tower B Co., Tower B Holding and WFC Fincorp, each of
which shall be released of aforesaid) from any Liability arising out of the
ownership, management or operation of the properties or other assets of
such non-Debtor O&Y Affiliate or out of any other aspect of the conduct by
such non-Debtor O&Y Affiliate of its business, including any Liability
arising under any notes, mortgages and other loan documents relating to any
financing of any property owned by any such non-Debtor O&Y
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Affiliate (but any secondary Liability of any other O&Y Releasee, by reason
of being a partner of such O&Y Affiliate or any guarantee of any obligation
of such O&Y Affiliate or other undertaking or relationship with respect to
such O&Y Affiliate, shall be released hereby) or (b) any current or former
director, officer or employee of any Debtor, Debtor in Possession or O&Y
Affiliate from any Liability arising primarily from his or her Willful
Misconduct (as hereinafter defined in this section 24.2) or (c) any current
or former director, officer or employee of any Debtor, Debtor in Possession
or O&Y Affiliate from any Liability for repayment of any loan (both unpaid
principal and any accrued interest and charges) made to such director,
officer or employee by a Debtor, Debtor in Possession or O&Y Affiliate
prior to the Effective Date and recorded in the ordinary course of business
on the books and records of such Debtor, Debtor in Possession or O&Y
Affiliate and that remains outstanding on the Effective Date. The release
of the O&Y Releasees provided in this section 24.2 includes, without
limitation, a release from all Liabilities from the beginning of time
relating to:
(i) the involvement of any of the O&Y Releasees in or
in connection with the negotiation, formulation,
documentation, approval and implementation of the Plan or
the Tower B Co. Plan or the transactions required to
implement this Plan or the Tower B Co. Plan as required by
section 18 hereof, including (without limitation) any
approval of this Plan or the Tower B Co. Plan or the
transactions contemplated thereby (but in the case of an O&Y
Affiliate subject to clause (a), and in the case of a
current or former director, officer or employee of a Debtor,
debtor in Possession or O&Y Affiliate, subject to clause
(b), of the proviso to the immediately preceding sentence);
(ii) the ownership, management or operation of the
properties or other assets of the Debtors, the Debtors in
Possession or the O&Y Affiliates by any of the O&Y Releases
(but in the case of an O&Y Affiliate subject to clause (a),
and in the case of a current or former director, officer or
employee of any Debtor, Debtor in Possession or O&Y
Affiliate, subject to clauses (b) and (c), of the proviso to
the immediately preceding sentence);
(iii) the preparation by any of the O&Y Releasees of
financial statements in respect of the Debtors, the Debtors
in Possession and the O&Y
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Affiliates (but in the case of a current or former director,
officer or employee of a Debtor, Debtor in Possession or O&Y
Affiliate, subject to clause (b) of the immediately
preceding sentence); and
(iv) the return, disgorgement, rescission or repayment,
in any form, of any payment (including any loan or advance)
to any current or former director, officer or employee of
any Debtor that was (A) made prior to the Effective Date,
(B) made by any Debtor, Debtor in Possession or O&Y
Affiliate or any person who was a stockholder or an
Affiliate of a Debtor or an O&Y Affiliate at the time when
such payment was made or any earlier time, and (C) made or
taken either (1) as compensation for, or on account
of or relating to or in connection with, any services
provided prior to the Effective Date to any of the Debtors,
the Debtors in Possession, the O&Y Affiliates or any person
who was a stockholder or an Affiliate of a Debtor or an O&Y
Affiliate at the time when such payment was made or any
earlier time or (2) on account of or relating to or in
connection with any full or partial satisfaction or
settlement of any claim for compensation for such services
(but shall not include a release of any Liability to repay a
loan described in clause (c) of the proviso to the
immediately preceding sentence or any Liability for the
return, disgorgement, rescission or repayment of any such
payment that was the product of Willful Misconduct by such
director, officer or employee).
Nothing in this section 24.2 shall release or in any way affect the
obligations of any of the O&Y Releasees, Coopers & Lybrand OYDL,
Inc./Limited or the Co-Proponents that are contained in that certain letter
agreement dated on or about September 10, 1996 among the O&Y Releasees, the
Co- Proponents and Coopers & Lybrand OYDL, Inc./Limited (the "O&Y Canada
Settlement Agreement"), including any obligations relating to the Disputed
SF Cash.
24.3. Limited Release of the Plan Releasees.
From and after the Effective Date, the Plan Releasees are
released from all Liabilities in any way relating to, but solely to the
extent relating to, the Debtors, the Debtors in Possession, the O&Y
Affiliates, the conduct of the business and affairs of any of the Debtors,
the Debtors in Possession and the O&Y Affiliates, the Reorganization Cases,
this Plan or the properties or other
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assets of the Debtors, the Debtors in Possession or the O&Y Affiliates. The
release of the Plan Releasees provided in this section 24.3 includes,
without limitation, a release from Liabilities from the beginning of time
relating to:
(i) the involvement of any of the Plan Releasees in or
with this Plan, the Tower B Co. Plan or the transactions
required to implement this Plan or the Tower B Co. Plan as
required by section 18 hereof, including (without
limitation) any approval of this Plan or the Tower B Co.
Plan or the transactions contemplated hereby; and
(ii) any and all acts and/or omissions relating to the
acquisition of Claims against the Debtors, the Debtors in
Possession and the O&Y Affiliates.
In addition, BPHI, as a Plan Releasee, shall be released in accordance with
the BPHI Settlement as set forth in section 4.3 hereof.
Nothing in this section 24.3 shall release or in any way affect the
obligations of Coopers & Lybrand OYDL, Inc./Limited or the Co-Proponents
that are contained in the O&Y Canada Settlement Agreement, including any
obligations relating to the Disputed SF Cash.
Nothing in this section 24 shall be construed to release the O&Y Releasees
or any other Entity from the Liabilities or obligations expressly
contemplated by this Plan, or created pursuant to any of the documents to
be executed in connection with the transactions under this Plan, including
Nothing in this section 24.3 shall be deemed to release or otherwise affect
any Claims by and between the Reichmann Entities and Coopers & Lybrand
OYDL, Inc./Limited and the Reichmann Entities and OYDL.
Liabilities and obligations relating to the Project Operating Agreement,
the Merrill Lynch Tower B Lease, the Zero Coupon Note and the Zero Coupon
Mortgage (each as defined in the Tower B Co. Plan), the Tower B Financing
Documents and any executory contracts and unexpired leases to be assumed
pursuant to section 21.1 hereof, to which Merrill Lynch is a party.
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24.4. Injunction.
24.4.1. General Injunction. The Confirmation Order shall
include an injunction to permanently enjoin and restrain all Entities from
asserting against the Debtors, the Debtors in Possession, the O&Y Releasees
and/or the Plan Releasees, or their respective assets, any Liabilities that
the Debtors, the Debtors in Possession, the O&Y Releasees and/or the Plan
Releasees are released from pursuant to sections 24.1, 24.2 and 24.3
hereof, or from taking any of the following actions against such Entities
in respect of any Claim respecting any Liability so released:
(i) the commencement or continuation of any action or
proceeding;
(ii) the enforcement, attachment, collection or
recovery by any manner or means of any judgment, award,
decree or order;
(iii) the creation, perfection or enforcement of any
encumbrance of any kind; and/or
(iv) the assertion of any right of setoff,
counterclaim, subrogation or recoupment of any kind against
any obligation due from any such Entity.
24.4.2. Injunction Relating to Reichmann Settlement. The
Confirmation Order shall also include an injunction against all actions
inconsistent with the releases provided in section 4.7 hereof.
24.5. Avoidance and Recovery Actions.
As of the Effective Date, the Debtors waive the right to
prosecute and release, on behalf of themselves and their respective
estates, any avoidance or recovery actions under sections 542, 544, 545,
547, 548, 549, 550, 551 and 553 of the Bankruptcy Code or any other Causes
of Action, or rights to payment of Claims, that belong to or could have
been raised by or on behalf of the Debtors or Debtors in Possession or
their respective estates, other than or in connection with any such actions
that were commenced on or before the Effective Date. Newco LP, as a
successor of the Debtors, shall retain and may prosecute any such actions
that may be pending on the Effective Date. Nothing in this section 24.5
shall be deemed to waive any right of any Debtor or Debtor in Possession to
assert avoidance or recovery actions under sections 542, 544, 545, 547,
548,
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549, 550, 551 and 553 of the Bankruptcy Code or any other Causes of Action
defensively, including by way of setoff, recoupment or counterclaim.
SECTION 25. RETENTION OF JURISDICTION.
25.1. Retention of Jurisdiction.
The Bankruptcy Court may retain jurisdiction, and if the
Bankruptcy Court exercises its retained jurisdiction, shall have exclusive
jurisdiction, of all matters arising out of, and relating to, the
Reorganization Cases and this Plan pursuant to, and for the purposes of,
sections 105(a) and 1142 of the Bankruptcy Code and for, among other
things, the following purposes:
(i) To hear and determine pending applications for the
assumption or rejection of executory contracts or unexpired
leases, if any are pending, and the allowance of Claims
resulting therefrom;
(ii) To hear and determine motions to approve the
transfer of O&Y(U.S.)'s ownership interests in 11601
Wilshire as contemplated in the January 12 Settlement
Agreement;
(iii) To determine any and all adversary proceedings,
applications and contested matters;
(iv) To ensure that distributions to holders of Allowed
Claims are accomplished as provided herein;
(v) To hear and determine any timely objections to
applications for payment of Administrative Expense Claims or
to proofs of claim and equity interests filed, both before
and after the Confirmation Date, including any objections to
the classification of any Claim or Equity Interest, and to
allow or disallow any Disputed Claim, in whole or in part;
(vi) To enter and implement such orders as may be
appropriate in the event the Confirmation Order is for any
reason stayed, revoked, modified or vacated;
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(vii) To issue such orders in aid of execution of this
Plan, to the extent authorized by section 1142 of the
Bankruptcy Code;
(viii) To consider any modifications of this Plan, to
cure any defect or omission, or reconcile any inconsistency
in any order of the Bankruptcy Court, including the
Confirmation Order;
(ix) To hear and determine all applications for awards
of compensation for services rendered and reimbursement of
expenses relating to implementation and consummation of this
Plan;
(x) To hear and determine any disputes arising in
connection with the interpretation, implementation or
enforcement of this Plan;
(xi) To hear and consider any disputes relating to or
settlements of the Disputed SF Cash and the Disputed MCJV
Recovery and any matters relating to the sale of the MCJV
Lands;
(xii) To hear and determine matters concerning state,
local and federal taxes in accordance with sections 346, 505
and 1146 of the Bankruptcy Code; and
(xiii) To enter a final decree closing the
Reorganization Cases.
25.2. Modification of Plan.
Modifications of this Plan may be proposed in writing by
the Debtors and the Co-Proponents at any time before the Confirmation Date;
provided, however, that this Plan, as modified, (a) satisfies the
requirements of sections 1122 and 1123 of the Bankruptcy Code, (b) to the
extent that any modification of this Plan materially and adversely affects
the treatment of holders of Unaffiliated Unsecured Claims, the modification
is consented to in writing by the Creditors' Committee, (c) to the extent
that any modification of this Plan materially and adversely affects the
treatment of Merrill Lynch hereunder, the modification is consented to in
writing by Merrill Lynch, and (d) the Debtors shall have complied with
section 1125 of the Bankruptcy Code. This Plan may be modified at any time
after confirmation hereof and before substantial consummation hereof;
provided, however, that this Plan, as modified, (a) satisfies the
requirements of sections 1122
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and 1123 of the Bankruptcy Code, (b) to the extent that any modification of
this Plan materially and adversely affects the treatment of holders of
Unaffiliated Unsecured Claims, the modification is consented to in writing
by the Creditors' Committee, (c) to the extent that any modification of
this Plan materially and adversely affects the treatment of Merrill Lynch
hereunder, the modification is consented to in writing by Merrill Lynch,
(d) the Bankruptcy Court, after notice and a hearing, confirms this Plan as
modified under section 1129 of the Bankruptcy Code, and (e) the
circumstances warrant such modifications. In no event shall this section
25.2 grant any rights to the New Lender (as defined in the Tower B Co.
Plan) with respect to its obligations under the Funding Commitment Letter,
the Securitization Letter, or in connection with the Funding Commitment
Letter Loan or the ML Lease Securitization (each as defined in the Tower B
Co. Plan). Any modification to the January 12th Settlement Agreement,
whether prior to or after the Confirmation Date, that materially and
adversely affects the treatment of holders of Unaffiliated Unsecured Claims
shall not be effective without the written consent of the Creditors'
Committee. This Plan may not be modified in any manner prohibited by the
January 12th Settlement Agreement, notwithstanding any other provision of
this section 25.2. Any modification of the Plan that materially and
adversely affects the treatment of Aetna shall not be effective without the
written consent of Aetna. A holder of a Claim or Equity Interest that has
accepted this Plan shall be deemed to have accepted the Plan as modified if
the proposed modification does not materially and adversely change the
treatment of the Claim or Equity Interest of such holder.
SECTION 26. MISCELLANEOUS PROVISIONS.
26.1. Payment of Statutory Fees.
All fees payable pursuant to section 1930, title 28, United
States Code, shall be paid on the Effective Date.
26.2. Retiree Benefits.
On and after the Effective Date, pursuant to section 1129(a)(13)
of the Bankruptcy Code, Newco LP or its designee shall continue to pay all
retiree benefits (within the meaning of section 1114 of the Bankruptcy
Code), at the level established in accordance with subsection (e)(1)(B) or
(g) of section 1114 of the Bankruptcy Code, at any time
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prior to the Confirmation Date for the duration of the period that any of
the Debtors has obligated itself to provide such benefits to any Retiree
under any Retiree Benefit Plan.
26.3. Dissolution of Creditors' Committee.
The Creditors' Committee shall be dissolved sixty (60) days after
the Effective Date unless the Bankruptcy Court shall order otherwise.
26.4. Recognition of Guarantee Rights.
The classification of and manner of satisfying all Claims under
this Plan take into consideration (a) the fact that certain of the Debtors
may have guaranteed the obligations of other Entities and (b) the fact that
certain of the Debtors may be a joint obligor with other Entities, with
respect to an obligation. All Claims against any one or more of the Debtors
based upon any such guarantees or joint obligations shall be released in
the manner provided herein but only as against the Debtors; provided,
however, that no creditor shall be entitled to receive more than a single
satisfaction of its Allowed Claim(s).
26.5. Severability.
26.5.1. Severability of Entire Plans.
If any Plan comprising this "Joint Plan of Reorganization" shall
be deemed non-confirmable by reason of the insufficiency of Cash of a
particular Debtor available on the Effective Date to pay in full all
Administrative Expense Claims, Allowed Priority Tax Claims and Allowed
Priority Non-Tax Claims, the Bankruptcy Court shall, upon the request of
the Debtors and the Co-Proponents, have the authority to delete such Plan
and confirm this Joint Plan of Reorganization as if such Plan were not
included in this Joint Plan of Reorganization. The deletion of any Plan
that materially and adversely affects the treatment of the holders of
Allowed Unaffiliated Unsecured Claims shall require written notice to and
the consent of the Creditors' Committee. The Debtors and the Co-Proponents
shall not request the deletion of the Plans for Consolidated Devco and
Tower B Leaseco without written notice to and the consent of Merrill Lynch.
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26.5.2. Severability of Plan Provisions.
If, prior to the Confirmation Date, any term or provision of this
Plan is held by the Bankruptcy Court to be invalid, void or unenforceable,
the Bankruptcy Court shall, with the consent of the Debtors and the
Co-Proponents, have the power to interpret, modify or delete such term or
provision (or portions thereof) to make it valid or enforceable to the
maximum extent practicable, consistent with the original purpose of the
term or provision held to be invalid, void or unenforceable, and such term
or provision shall then be applicable as interpreted, modified or deleted.
Notwithstanding any such interpretation, modification or deletion, the
remainder of the terms and provisions of this Plan shall remain in full
force and effect and shall in no way be affected, impaired or invalidated
by such interpretation, modification or deletion. The Confirmation Order
shall constitute a judicial determination and shall provide that each term
and provision of this Plan, as it may have been interpreted, modified or
deleted in accordance with the foregoing, is valid and enforceable pursuant
to its terms. Notwithstanding any provision herein, no interpretation,
modification or deletion of a provision of this Plan under this section
26.5.2 that materially and adversely affects the treatment of the holders
of Unaffiliated Unsecured Claims shall be effective without the written
consent of the Creditors' Committee; no interpretation, modification or
deletion of a provision of this Plan under this section 26.5.2 that
materially and adversely affects the treatment of Merrill Lynch hereunder
shall be effective without the written consent of Merrill Lynch; and no
interpretation, modification or deletion of a provision of this Plan under
this section 26.5.2 that violates or contravenes the January 12th
Settlement Agreement shall be effective without the written consent of the
Club Loan Transferors.
26.6. Governing Law.
Except to the extent that the Bankruptcy Code or other federal
law is applicable, or to the extent a schedule or exhibit hereto provides
otherwise, the rights, duties and obligations arising under this Plan shall
be governed by, and construed and enforced in accordance with, the laws of
the State of New York.
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26.7. Notices.
All notices, requests, and demands to be effective shall be in
writing (including by facsimile transmission) and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made
when actually delivered or, in the case of notice by facsimile
transmission, when received and telephonically confirmed, addressed as
follows:
To the Debtors:
Olympia & York Companies (U.S.A.)
237 Park Avenue, 12th Floor
New York, New York 10017
Attn: Managing Attorney
Telephone: (212) 850-9600
Telecopier: (212) 850-9833
and
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: Corinne Ball, Esq.
Paul D. Leake, Esq.
Telephone: (212) 310-8000
Telecopier: (212) 310-8007
To the Creditors' Committee:
Kramer Levin Naftalis & Frankel
919 Third Avenue
New York, New York 10022
Attn: Kenneth H. Eckstein, Esq.
Saul E. Burian, Esq.
Telephone: (212) 715-9100
Telecopier: (212) 715-8000
-213-
To Carena or BPHI:
Battery Park Holdings Inc.
BCE Place
181 Bay Street
Suite 4400
P.O. Box 770
Toronto, Ontario M5J 2T3
Attn: Mr. Edwin B. Nordholm
Telephone: (416) 865-0430
Telecopier: (416) 865-1288
and
Rosebridge Capital Corp.
1920 Bankers Hall
855 Second Street, S.W.
Calgary, Alberta T2P 4J7
Canada
Attn: Mr. Joseph F. Killi
Telephone: (403) 269-0644
Telecopier: (403) 269-0688
and
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, New York 10036
Attn: Alan B. Hyman, Esq.
Stephen B. Kuhn, Esq.
Telephone: (212) 969-3000
Telecopier: (212) 969-2900
and
Cahill, Gordon & Reindel
80 Pine Street
New York, New York 10005
Attn: Laurence A. Silverman, Esq.
Richard J. Sabella, Esq.
Telephone: (212) 701-3000
Telecopier: (212) 269-5420
-214-
To CIBC:
Canadian Imperial Bank of Commerce
Commerce Court West, 6th Floor
Toronto, Ontario M5L 1A2
Attn: Mr. Brian T. McDonough
Telephone: (416) 861-3349
Telecopier: (416) 861-3602
and
Canadian Imperial Bank of Commerce
425 Lexington Avenue
New York, New York 10017
Attn: Mr. Marc A. Bilbao
Telephone: (212) 865-3549
Telecopier: (212) 856-4135
and
Sidley & Austin
875 Third Avenue, 14th Floor
New York, New York 10022
Attn: J. Ronald Trost, Esq.
Telephone: (212) 906-2000
Telecopier: (212) 906-2021
and
Sidley & Austin
555 West Fifth Street, Suite 4000
Los Angeles, California 90013-1010
Attn: Joel G. Samuels, Esq.
Telephone: (213) 896-6030
Telecopier: (213) 896-6600
To Citibank:
Citibank, N.A.
153 E. 53rd Street
6th Floor
New York, New York 10043
Attn: Ms. Ann Goodbody
Telephone: (212) 559-1000
Telecopier: (212) 527-2737
and
-215-
Shearman & Sterling
153 E. 53rd Street
New York, New York 10022
Attn: George J. Wade, Esq.
Telephone: (212) 848-4000
Telecopier: (212) 848-5323
and
Shearman & Sterling
599 Lexington Ave.
New York, New York 10022
Attn: David Bleich, Esq.
Telephone: (212) 848-4000
Telecopier: (212) 848-7179
To Dragon:
Dragon Holdings Limited
c/o Concord Property and Finance Co., Ltd.
21st Floor, China Building
No. 29 Queen's Road Central
Hong Kong
Attn: Mr. Frank J. Sixt
Telephone: (011) 852-252-669-11
Telecopier: (011) 852-2845-2940
and
Coudert Brothers
1114 Avenue of the Americas
New York, New York 10036
Attn: Thomas J. Weber, Esq.
Gerard V. Hannon, Esq.
Telephone: (212) 626-4898
Telecopier: (212) 626-4400
-216-
Dated: New York, New York
September 12, 1996
Respectfully submitted,
OLYMPIA & YORK REALTY CORP., et
al.
(for itself and on behalf of
each of the other Debtors)
By: /s/ Joel M. Simon
----------------------------
Name: Joel M. Simon
Title: Executive
Vice-President
and Chief Operating
Officer
-217-
CARENA BANCORP US, INC.
By: /s/ Edwin B. Nordholm
---------------------
Name: Edwin B. Nordholm
Title: Vice-President
-218-
BATTERY PARK HOLDINGS INC.
By: /s/ Edwin B. Nordholm
----------------------
Name: Edwin B. Nordholm
Title: Vice-President
-219-
CANADIAN IMPERIAL BANK OF
COMMERCE
By: /s/ Brian T. McDonough
---------------------------
Name: Brian T. McDonough
Title: Vice-President
-220-
CITIBANK, N.A.
By: /s/ Ann M. Goodbody
-------------------------
Name: Ann M. Goodbody
Title: Vice-President
-221-
DRAGON HOLDINGS LIMITED
By: /s/ Frank J. Sixt
----------------------
Name: Frank J. Sixt
Title: Director
-222-
COUNSEL:
Corinne Ball (CB 8203)
Paul D. Leake (PL 1272)
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
ATTORNEYS FOR THE DEBTORS AND
DEBTORS IN POSSESSION (OTHER THAN OLYMPIA & YORK TOWER B
LEASE COMPANY)
Richard Seltzer
Andrew Kress
KAYE, SCHOLER, FIERMAN, HAYS
& HANDLER
425 Park Avenue
New York, New York 10022
(212) 836-8000
ATTORNEYS FOR OLYMPIA & YORK TOWER B LEASE COMPANY,
AS DEBTOR AND DEBTOR IN POSSESSION
Alan B. Hyman
Stephen B. Kuhn
PROSKAUER ROSE GOETZ &
MENDELSOHN LLP
1585 Broadway
New York, New York 10036
(212) 969-3000
ATTORNEYS FOR BATTERY PARK
HOLDINGS, INC. AND CARENA
BANCORP US, INC.
J. Ronald Trost, Esq.
Joel G. Samuels, Esq.
SIDLEY & AUSTIN
875 Third Avenue
New York, New York 10022
(212) 906-2000
ATTORNEYS FOR CANADIAN IMPERIAL
BANK OF COMMERCE
-223-
Thomas J. Weber
Gerald V. Hannon
COUDERT BROTHERS
1114 Avenue of the Americas
New York, New York 10036
(212) 626-4400
ATTORNEYS FOR DRAGON
HOLDINGS LIMITED
George J. Wade, Esq.
David Bleich, Esq.
SHEARMAN & STERLING
153 East 53rd Street
New York, New York 10022
(212) 848-4000
ATTORNEYS FOR CITIBANK, N.A.
Schedule 1.200 to
Plan
Schedule of O&Y Affiliates
O&Y Affiliates means the following Entities:
1. Amland Properties Corp.
2. Olympia & York and Andrews Associates Venture
3. Baden Real Estate Corp.
4. Brunswash Development Corporation
5. Olympia & York Bryan Holding Company
6. Cabot Estate Development Company
7. Olympia & York Cherry Creek Company
8. Chicago-Superior Associates
9. Olympia & York Co., Inc.
10. Olympia & York Colorado Development Corp.
11. Olympia & York Communications, Inc.
12. Olympia & York Companies (U.S.A.), Inc.
13. O&Y Concord 60 Broad Street Company
14. O&Y Construction Corp.
15. Olympia & York Cypress Corp.
16. O&Y Cypress Florida Inc.
17. O&Y Dalland Corp.
18. Olympia & York Denver Properties Corp.
19. Devco - 11601-A, L.P.
20. Devco - 11601-B, L.P.
21. Dev GP 53 Holding Corp.
22. O&Y Devcon, Inc.
23. O&Y Development Holding Corp.
24. Olympia & York Development (Seattle) Company
25. O&Y Equity (Canada) Ltd.
26. O&Y Equity Company, L.P.
27. O&Y Equity General Partner Corp.
28. Olympia & York FCA Inc.
29. O&Y FEC Corp.
30. O&Y FEC Corp. Venture
31. Federal Center Associates
32. O&Y Financial Company
33. Financial Plaza Trust
34. O&Y Fiscal Corporation
35. Olympia & York Florida Equity Corp.
36. Forum Properties Corp.
37. Olympia & York Fountain Plaza Company
38. Olympia & York Grampian Corp.
39. Hartford Park Associates
40. Olympia & York Homes Corporation
41. O&Y Hope Street, Inc.
42. O&Y I/S Guide Inc.
43. Izzard Corp.
44. Olympia & York Jefferson Street Company
-3-
45. Olympia & York KOIN Center Company
46. O&Y Liberty Plaza Company
47. Olympia & York Maiden Lane Company
48. Olympia & York Maiden Lane Finance Corp.
49. O&Y Maintenance Corp.
50. O&Y Management Corp.
51. Olympia & York Mass. Investment Corp.
52. Olympia & York Massachusetts Financial Company
53. Miami Center Joint Venture
54. NH Corp.
55. O&Y NY Building Corp.
56. O&Y OCP Corp.
57. Olympia & York OLP Company
58. Olympia/Roberts Company
59. Olympia Centre Holding Company, L.P.
60. One Commercial Plaza (Unnamed Co-Tenancy)
61. One Financial Plaza (Unnamed Joint Venture)
62. Orion Limited Partnership
63. OYCI Video, Inc.
64. Pennland Properties Corp.
65. Perkins Realty Trust
66. O&Y Plaza Corp.
67. Olympia & York Properties (Portland) Company
68. Olympia & York Real Estate (USA) Inc.
69. Olympia & York Realty Corp.
70. Olympia & York Residential Corp.
71. O&Y REUSA TALP Subsidiary Corp.
72. Senior Associates
73. Olympia & York SF Holdings Corporation
74. South Brunswick Industrial Properties Limited
Partnership
75. Brunswash Development Corporation
76. Olympia (U.S.) Development Subsidiary Corp.
77. Olympia & York Southeast Equity Corp.
78. Olympia & York State Limited Partnership
79. Olympia & York State Street Company
80. SYR Mall Corp.
81. O&Y Tower A Holding Company
82. O&Y Tower A Limited Partnership
83. Olympia & York Tower B Company
84. O&Y Tower B Holding Company I
85. Olympia & York Tower B Lease Company
86. O&Y Tower D Holding Company I
87. O&Y Tower D Holding Company II
88. Trinity Place Company
89. O&Y (U.S.) Development Canada Ltd.
90. O&Y (U.S.) Development Company, L.P
91. O&Y (U.S.) Development General Partner Corp.
92. O&Y (U.S.) Financial Company
-4-
93. O&Y Venture Corp.
94. Olympia & York Water Street Company
95. West 31st Street Associates
96. O&Y WFC Maintenance Corp.
97. Olympia & York WFC Retail Company
98. WFC Tower A Company
99. O&Y WFC Tower Corp.
100. WFC Tower D Company
101. Olympia & York World Financial Center Finance Corp.
102. O&Y YBG Corp.
103. O&Y YBG L.P.
104. Yerba Buena Gardens, L.P.
105. York Venture Co.
106. 2 Broadway Associates
107. 2 Broadway Land Company
108. O&Y 7 Hanover Leasing Company, L.P.
109. O&Y 53 Finance Corp.
110. 53 Holding Company, L.P.
111. 53 State Street Corp.
112. O&Y 55 WS Lease Co., L.P.
113. 60 Broad Street Management Corp.
114. 125 Broad Street Company
115. O&Y 233 Park South Company, L.P.
116. 237 Park Avenue Associates, L.L.C.
117. O&Y 245 Corp.
118. Olympia & York 245 Lease Company
119. 245 Park Avenue Company
120. Olympia & York 245 Park Avenue Holding Company, L.P.
121. Olympia & York 320 G.O.T. Company
122. Olympia & York 320 Park Company
123. O&Y 320 Park Corp.
124. 1290 Associates, L.L.C.
125. 1999 Bryan Street Ltd.
126. 11601 Holding Corp.
127. 11601 Holdings, L.P.
128. 11601 Wilshire Associates
Schedule 18 to Plan
Restructuring Transactions
To be filed with the Bankruptcy Court prior to the
Disclosure Statement Hearing.
Schedule 21.1 to Plan
Executory Contracts to be Assumed under the Plan
Filed with the Court under separate cover on September 4,
1996.
EXHIBIT A
Aetna Restructured Mortgage Loan Documents
Filed with the Court under separate cover on
September 4, 1996
EXHIBIT B
Convertible Note and Indenture
EXHIBIT C
DKB Restructured Mortgage Loan Documents
Filed with the Court under separate cover on
September 4, 1996
EXHIBIT D
Intentionally Omitted
EXHIBIT E
JMB Restructuring Documents
Intentionally Deleted
EXHIBIT F
Merrill Lynch Tower B Amendment of Lease
Filed with the Court under separate cover on
September 4, 1996
EXHIBIT G
Merrill Lynch Tower D Amendment of Lease
Filed with the Court under separate cover on
September 4, 1996
EXHIBIT H
Newco LP Partnership Agreement
EXHIBIT I
Sanwa/OLP Restructured Mortgage Loan Documents
Filed with the Court under separate cover on
September 4, 1996
EXHIBIT J
Sanwa/Tower A Restructured Mortgage Loan Documents
Filed with the Court under separate cover on
September 4, 1996
EXHIBIT K
Tower B Financing Documents
Filed with the Court under separate cover on
September 4, 1996
EXHIBIT L
Tower B Amended Reimbursement Agreement
Filed with the Court under separate cover on
September 4, 1996
EXHIBIT M
Tower D Financing Documents
Filed with the Court under separate cover on
September 4, 1996
EXHIBIT N
Tower D Amended Reimbursement Agreement
Filed with the Court under separate cover on
September 4, 1996
EXHIBIT O
New Tower D LP Partnership Agreement
Filed with the Court under separate
cover on September 4, 1996
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND INTERPRETATION.................... 1
A. Definitions....................................... 1
B. Interpretation; Application of
Definitions and Rules of Construction............. 45
SECTION 2. PROVISIONS FOR SUBSTANTIVE CONSOLIDATION.......... 46
2.1. Substantive Consolidation of Consolidated
Devco Entities.................................... 46
2.2. Substantive Consolidation of Realty Corp.,
OYREUSA and Baden................................. 46
2.3. Substantive Consolidation of Liberty Plaza
Co., OLP Co. and Trinity Place Co................. 47
2.4. Substantive Consolidation of 245 Park Co.,
245 Holding LP and 245 Corp....................... 47
SECTION 3. PROVISIONS RELATING TO DISTRIBUTIONS TO THE
CO-PROPONENTS..................................... 48
SECTION 4. PROVISIONS FOR THE SETTLEMENT OF CLAIMS........... 48
4.1. Settlement of Intercompany Claims................. 48
4.2. The January 12th Settlement Agreement............. 49
4.3. BPHI Settlement................................... 50
4.4. Merrill Lynch Settlement.......................... 51
4.5. TIAA Settlement................................... 59
4.6. Toronto Dominion Settlement....................... 61
4.7. Reichmann Settlement.............................. 62
4.8. Amex Settlement................................... 67
4.9. Bank of Nova Scotia Settlement.................... 71
4.10. Dragon Settlement................................. 74
4.11. Oppenheimer Indirect Capital Contribution and
Treatment of Oppenheimer Claim.................... 75
SECTION 5. PROVISIONS FOR PAYMENT OF ADMINISTRATIVE
EXPENSE CLAIMS, PRIORITY TAX CLAIMS AND OTHER
CLAIMS............................................ 77
5.1. Administrative Expense Claims..................... 77
5.2. Priority Tax Claims............................... 77
5.3. Consolidated Devco Convenience Claims............. 78
SECTION 6. CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS..... 78
6.1. Claims Against and Equity Interests in
Consolidated Devco................................ 78
-i-
Page
6.2. Claims Against and Equity Interests in
Consolidated Realty Corp........................... 79
6.3. Claims Against and Equity Interests in SF
Holdings........................................... 80
6.4. Claims Against and Equity Interests in Devco
Canada............................................. 80
6.5. Claims Against and Equity Interests in Equity
Canada............................................. 80
6.6. Claims Against and Equity Interests in
Consolidated OLP................................... 80
6.7. Claims Against and Equity Interests in
Tower A Co......................................... 81
6.8. Claims Against and Equity Interests in
Tower Corp......................................... 81
6.9. Claims Against and Equity Interests in
Consolidated 245................................... 82
6.10. Claims Against and Equity Interests in
Tower B Leaseco.................................... 82
SECTION 7. PROVISIONS FOR TREATMENT OF CLAIMS AGAINST AND
EQUITY INTERESTS IN CONSOLIDATED DEVCO............. 83
7.1. Priority Non-Tax Claims Against Consolidated
Devco Entities (Consolidated Devco Class 1)........ 83
7.2. Secured Club Loan Claims Against Devco,
Devco GP, Equityco, Equity GP, and U.S. Finco
Consolidated Devco Class 2)....................... 83
7.3. Secured CIBC/OLP Claims Against Devco, Devco
GP and U.S. Finco (Consolidated Devco
Class 3)........................................... 84
7.4. Secured Sumitomo Bank/Tower D Pledge Loan
Claims Against Devco and Devco GP (Consolidated
Devco Class 4)..................................... 84
7.5. Secured Citibank Letter of Credit Claims
Against the Consolidated Devco Entities
Consolidated Devco Class 5)....................... 84
7.6. Secured Citibank Swap Claims Against Devco
Consolidated Devco Class 6)....................... 85
7.7. Secured Sterling National Letter of Credit
Claims Against Devco GP (Consolidated Devco
Class 7)........................................... 85
7.8. Secured 245 Park Co. Partnership Claims
Against Devco (Consolidated Devco Class 8)......... 85
7.9. CIBC/Lost Note Indemnity Claims Against O&Y
Finco, Equityco and Equity GP (Consolidated
Devco Class 9)..................................... 85
7.10. Insured Claims Against Consolidated Devco
Entities (Consolidated Devco Class 10)............. 86
7.11. General Unsecured Claims Against Consolidated
Devco Entities (Consolidated Devco Class 11)....... 86
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7.12. Equity Interests in Consolidated Devco
Entities (Consolidated Devco Class 12)............. 94
SECTION 8. PROVISIONS FOR TREATMENT OF CLAIMS AGAINST AND
EQUITY INTERESTS IN CONSOLIDATED REALTY CORP....... 94
8.1. Priority Non-Tax Claims Against Realty Corp.,
Baden and OYREUSA (Consolidated Realty Corp.
Class 1)........................................... 94
8.2. Secured Club Loan Claims Against OYREUSA
(Consolidated Realty Corp. Class 2)................ 94
8.3. Toronto Dominion Judgment Claims Against
Baden (Consolidated Realty Corp. Class 3).......... 95
8.4. Bank of Nova Scotia Claims Against Baden
(Consolidated Realty Corp. Class 4)................ 95
8.5. Insured Claims Against Realty Corp., OYREUSA
And Baden (Consolidated Realty Corp. Class 5)...... 95
8.6. General Unsecured Claims Against Realty
Corp., OYREUSA and Baden (Consolidated Realty
Corp. Class 6)..................................... 95
8.7. Equity Interests in Realty Corp.
(Consolidated Realty Corp. Class 7)................ 96
SECTION 9. PROVISIONS FOR TREATMENT OF CLAIMS AGAINST AND
EQUITY INTERESTS IN SF HOLDINGS.................... 96
9.1. Priority Non-Tax Claims Against SF Holdings
(SF Holdings Class 1).............................. 96
9.2. General Unsecured Claims Against SF Holdings
(SF Holdings Class 2).............................. 97
9.3. Equity Interest in SF Holdings (SF Holdings
Class 3)........................................... 97
SECTION 10. PROVISIONS FOR TREATMENT OF CLAIMS AGAINST AND
EQUITY INTERESTS IN DEVCO CANADA................... 97
10.1. Priority Non-Tax Claims Against Devco Canada
(Devco Canada Class 1)............................. 97
10.2. Insured Claims Against Devco Canada (Devco
Canada Class 2).................................... 98
10.3. General Unsecured Claims Against Devco Canada
(Devco Canada Class 3)............................. 98
10.4. Equity Interest in Devco Canada (Devco Canada
Class 4)........................................... 98
SECTION 11. PROVISIONS FOR TREATMENT OF CLAIMS AGAINST AND
EQUITY INTERESTS IN EQUITY CANADA.................. 99
11.1. Priority Non-Tax Claims Against Equity Canada
(Equity Canada Class 1)............................ 99
-iii-
Page
11.2. Insured Claims Against Equity Canada (Equity
Canada Class 2).................................... 99
11.3. General Unsecured Claims Against Equity
Canada (Equity Canada Class 3)..................... 99
11.4. Equity Interest in Equity Canada (Equity
Canada Class 4)....................................100
SECTION 12. PROVISIONS FOR TREATMENT OF CLAIMS AGAINST
AND EQUITY INTERESTS IN CONSOLIDATED OLP...........100
12.1. Priority Non-Tax Claims Against Liberty Plaza
Co., OLP Co. and Trinity Place Co.
(Consolidated OLP Class 1).........................100
12.2. Secured Sanwa/OLP Claims Against Liberty
Plaza Co., OLP Co. and Trinity Place Co.
(Consolidated OLP Class 2).........................100
12.3. Secured U.S. Finco/OLP Claims Against
Liberty Plaza Co., OLP Co. and Trinity
Place Co. (Consolidated OLP Class 3)...............112
12.4. Insured Claims Against Liberty Plaza Co.,
OLP Co. and Trinity Place Co. (Consolidated
OLP Class 4).......................................112
12.5. General Unsecured Claims Against Liberty
Plaza Co., OLP Co. and Trinity Place Co.
(Consolidated OLP Class 5).........................112
12.6. Equity Interests in Liberty Plaza Co., OLP
Co., and Trinity Place Co. (Consolidated OLP
Class 6)...........................................112
SECTION 13. PROVISIONS FOR TREATMENT OF CLAIMS AGAINST
AND EQUITY INTERESTS IN TOWER A CO.................113
13.1. Priority Non-Tax Claims Against Tower A
Co. (Tower A Co. Class 1)..........................113
13.2. Secured Sanwa/Tower A Claims Against Tower A
Co. (Tower A Co. Class 2)..........................113
13.3. TIAA Judgment Claims Against Tower A Co.
(Tower A Co. Class 3)..............................122
13.4. Insured Claims Against Tower A Co. (Tower A
Co. Class 4).......................................123
13.5. General Unsecured Claims Against Tower A Co.
(Tower A Co. Class 5)..............................123
13.6. Equity Interests in Tower A Co. (Tower A Co.
Class 6)...........................................123
SECTION 14. PROVISIONS FOR TREATMENT OF CLAIMS AGAINST
AND EQUITY INTERESTS IN TOWER CORP.................123
14.1. Priority Non-Tax Claims Against Tower Corp.
(Tower Corp. Class 1)..............................123
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Page
14.2. Secured Club Loan Claims Against Tower Corp.
(Tower Corp. Class 2)...............................123
14.3. Insured Claims Against Tower Corp. (Tower
Corp. Class 3)......................................124
14.4. General Unsecured Claims Against Tower Corp.
(Tower Corp. Class 4)...............................124
14.5. Equity Interests in Tower Corp. (Tower Corp.
Class 5)............................................124
SECTION 15. PROVISIONS FOR TREATMENT OF CLAIMS AGAINST AND
EQUITY INTERESTS IN CONSOLIDATED 245................124
15.1. Priority Non-Tax Claims Against 245 Park Co.,
245 Holding LP and 245 Corp. (Consolidated 245
Class 1)............................................124
15.2. Secured Club Loan Claims Against 245 Holding
LP and 245 Corp. (Consolidated 245 Class 2).........125
15.3. Secured Aetna Mortgage Loan Claims Against 245
Park Co. (Consolidated 245 Class 3).................125
15.4. Secured DKB Mortgage Loan Claims Against 245
Park Co. (Consolidated 245 Class 4).................139
15.5. Club Loan/245 Park Deficiency Claims Against
245 Holding LP and 245 Corp. (Consolidated 245
Class 5)............................................153
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Page
15.6. Insured Claims Against 245 Park Co., 245
Holding LP and 245 Corp. (Consolidated 245
Class 6).............................................153
15.7. General Unsecured Claims Against 245 Park
Co., 245 Holding LP and 245 Corp.
(Consolidated 245 Class 7)...........................153
15.8. Equity Interests in 245 Park Co., 245 Holding
LP Co. and 245 Corp. (Consolidated 245
Class 8).............................................153
SECTION 16. PROVISIONS FOR TREATMENT OF CLAIMS AGAINST AND
EQUITY INTERESTS IN TOWER B LEASECO..................165
16.1. Priority Non-Tax Claims Against Tower B
Leaseco (Tower B Leaseco Class 1)....................165
16.2. Merrill Lynch/Tower B Leaseco Secured Claim
(Tower B Leaseco Class 2)............................165
16.3. Insured Claims Against Tower B Leaseco (Tower
B Leaseco Class 3)...................................165
16.4. General Unsecured Claims Against Tower B
Leaseco (Tower B Leaseco Class 4)....................165
16.5. Equity Interests in Tower B Leaseco (Tower B
Leaseco Class 5).....................................166
SECTION 17. IDENTIFICATION OF CLASSES OF CLAIMS AND
INTERESTS IMPAIRED AND NOT IMPAIRED UNDER THIS
PLAN; ACCEPTANCE OR REJECTION OF THIS PLAN...........166
17.1. Holders of Claims and Equity Interests
Entitled to Vote.....................................166
17.2. Acceptance by Unimpaired Classes.....................166
17.3. Elimination of Classes...............................167
17.4. Nonconsensual Confirmation...........................167
17.5. Revocation of Plan...................................167
SECTION 18. MEANS OF IMPLEMENTATION..............................167
18.1. Newco LP.............................................168
18.2. Ownership of Managing GP.............................173
18.3. Organization of Devco GP.............................173
18.4. Organization of Liquidating Corp.....................174
18.5. OLP Transactions.....................................176
18.6. 245 Park Avenue Transactions.........................178
18.7. Tower A Transactions.................................180
18.8. Tower B Transactions.................................182
18.9. Tower D Transactions.................................183
18.10. WFC Retailco Holding Corp. and WFC Retailco
L.P..................................................184
18.11. Transfers in Furtherance of the Plan.................184
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Page
18.12. Co-Proponents' Capital Infusion......................185
18.13. Restrictions on Transferability and
Assignability of Class A Interests and Class B
Interests and on Admission of Substitute
Partners; Tag-Along Rights...........................185
18.14. Letter of Credit Transactions........................189
18.15. Execution of CIBC Amended and Restated Lost
Note Indemnity Agreement.............................189
18.16. Abandonment of Interest in Olympia & York
(U.S.) Holdings Company, L.P.........................189
18.17 Distributions under this Plan........................189
SECTION 19. PROVISIONS GOVERNING DISTRIBUTIONS...................189
19.1. Date of Distributions................................189
19.2. Delivery of Distributions............................189
19.3. Time Bar to Cash Payments............................190
19.4. Manner of Payment Under this Plan....................190
19.5. Cap on Distributions.................................191
SECTION 20. PROCEDURES FOR RESOLVING AND TREATING DISPUTED
CLAIMS UNDER THIS PLAN...............................191
20.1. Prosecution of Objections............................191
20.2. No Distributions Pending Allowance...................191
20.3. Claims Reserves......................................192
20.4. Distributions After Allowance........................195
20.5. Distributions After Disallowance.....................196
SECTION 21. PROVISIONS GOVERNING EXECUTORY CONTRACTS AND
UNEXPIRED LEASES UNDER THIS PLAN.....................197
21.1. General Treatment....................................197
21.2. Amendments to Schedule; Effect of Amendments.........198
21.3. Bar to Rejection Damages.............................198
SECTION 22. CONDITIONS PRECEDENT TO CONFIRMATION DATE AND
EFFECTIVE DATE.......................................199
22.1. Conditions Precedent to Confirmation of this
Plan.................................................199
22.2. Conditions Precedent to the Effective Date of
this Plan............................................201
22.3. Waiver of Conditions Precedent.......................203
SECTION 23. EFFECT OF CONFIRMATION...............................204
23.1. Reorganized Debtors' Authority.......................204
23.2. Testing and Liens....................................204
23.3. Discharge of the Debtors.............................204
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Page
23.4. Term of Injunctions or Stays.........................205
SECTION 24. RELEASES, INJUNCTION AND WAIVER OF CLAIMS............205
24.1. Release of the Debtors and Debtors in
Possession...........................................205
24.2. Limited Release of O&Y Releasees.....................205
24.3. Limited Release of the Plan Releasees................207
24.4. Injunction...........................................209
24.5. Avoidance and Recovery Actions........................209
SECTION 25. RETENTION OF JURISDICTION............................210
25.1. Retention of Jurisdiction............................210
25.2. Modification of Plan.................................211
SECTION 26. MISCELLANEOUS PROVISIONS.............................212
26.1. Payment of Statutory Fees............................212
26.2. Retiree Benefits.....................................213
26.3. Dissolution of Creditors' Committee..................213
26.4. Recognition of Guarantee Rights......................213
26.5. Severability.........................................213
26.6. Governing Law........................................215
26.7. Notices..............................................215
SCHEDULES TO PLAN
Schedule 1.194 Schedule of O&Y Affiliates
Schedule 18 Restructuring Transactions
Schedule 21.1 Executory Contracts to be Assumed Under The
Plan
EXHIBITS TO PLAN
Exhibit A Aetna Restructured Mortgage Loan Documents
Exhibit B Convertible Note and Indenture
Exhibit C DKB Restructured Mortgage Loan Documents
Exhibit D Intentionally Omitted
Exhibit E Intentionally Deleted
Exhibit F Merrill Lynch Tower B Lease Amendment
Exhibit G Merrill Lynch Tower D Lease Amendment
Exhibit H Newco LP Partnership Agreement
Exhibit I Sanwa/OLP Restructured Mortgage Loan
Documents
-viii-
Page
Exhibit J Sanwa/Tower A Restructured Mortgage Loan
Documents
Exhibit K Tower B Amended Reimbursement Agreement
Exhibit L Tower B Financing Documents
Exhibit M Tower D Financing Documents
Exhibit N Tower D Amended Reimbursement Agreement
Exhibit O New Tower D LP Partnership Agreement
-ix-
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
REGISTRANT'S FORM 10-Q FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1996 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
INCLUDED IN SUCH REPORT.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> SEP-30-1996
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<SECURITIES> 0
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<CURRENT-LIABILITIES> 18,189,519
<BONDS> 43,236,631
<COMMON> 0
0
0
<OTHER-SE> (141,752,940)
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<EPS-DILUTED> (6,280)
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