UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

www.flsb.uscourts.gov

In re: Chapter 11 

AVENTURA HOTEL PROPERTIES, LLC, Case No. 21-12374-BKC-RAM 

TRIPTYCH MIAMI HOLDINGS, LLC, Case No. 21-12375-BKC-RAM 

 

 Debtors. Jointly Administered Under 

____________________________________/ Case No. 21-12374-BKC-RAM 

NOTICE OF FILING 

PLEASE TAKE NOTICE that Aventura Hotel Properties, LLC (“AHP” or the 

“Debtor”), by and through counsel, hereby files the redline copies of the First Amended Chapter 

11 Plan of Liquidation Proposed by Aventura Hotel Properties, LLC [ECF No. 115] attached 

hereto as Exhibit A and Disclosure Statement in Support of First Amended Chapter 11 Plan of 

Liquidation Proposed by Aventura Hotel Properties, LLC [ECF No. 116] attached hereto as 

Exhibit B. 

Dated this 16th day of August, 2021. 

Respectfully Submitted, 

GENOVESE JOBLOVE & BATTISTA, P.A. 

Counsel for the Debtor-in-Possession 

100 SE 2nd Street, 44th Floor 

Miami, FL 33131-2100 

Telephone: (305) 349-2300 

Facsimile: (305) 349-2310 

By: /s/ Jesus M. Suarez 

 Jesus M. Suarez, Esq. 

 Fla. Bar No. 60086 

jsuarez@gjb-law.com 

 Barry P. Gruher, Esq. 

 Fla. Bar No. 960993 

bgruher@gjb-law.com 

Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 1 of 171
2 

CERTIFICATE OF SERVICE 

 I HEREBY CERTIFY that a copy of the foregoing Notice was served via CM/ECF 

Notification to all parties registered to receive electronic service on the 16th day of August, 2021. 

By: /s/ Jesus M. Suarez 

 Jesus M. Suarez, Esq. 

 Fla. Bar No. 60086 

jsuarez@gjb-law.com 

 Barry P. Gruher, Esq. 

 Fla. Bar No. 960993 

bgruher@gjb-law.com 

Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 2 of 171
EXHIBIT A 

Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 3 of 171
UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

www.flsb.uscourts.gov

In re: Chapter 11

AVENTURA HOTEL PROPERTIES, LLC, Case No. 21-12374-BKC-RAM

TRIPTYCH MIAMI HOLDINGS, LLC, Case No. 21-12375-BKC-RAM

 Debtors. Jointly Administered Under

____________________________________/ Case No. 21-12374-BKC-RAM

FIRST AMENDED CHAPTER 11 PLAN OF LIQUIDATION

PROPOSED BY AVENTURA HOTEL PROPERTIES, LLC

GENOVESE JOBLOVE & BATTISTA, P.A.

Jesus M. Suarez

Fla. Bar No. 60086

jsuarez@gjb-law.com

John H. Genovese

Fla. Bar No. 280852

jgenovese@gjb-law.com

Barry P. Gruher

Fla. Bar No. 960993

bgruher@gjb-law.com

100 SE 2nd Street, 44th Floor

Miami, FL 33131

Telephone: (305) 349-2300

Facsimile: (305) 349-2310

Counsel for Debtor-in-Possession

Aventura Hotel Properties, LLC

Dated: August 11,16, 2021

Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 4 of 171
TABLE OF CONTENTS

ARTICLE I. DEFINED TERMS AND RULES OF INTERPRETATION 1

A. Defined Terms 1

B. Rules of Interpretation 1011

C. Exhibits 1011

ARTICLE II. ADMINISTRATIVE CLAIMS, PROFESSIONAL FEE CLAIMS,

PRIORITY CLAIMS AND UNITED STATES TRUSTEE FEES 11

A. Administrative Claims 11

B. Professional Fee Claims 1112

C. Priority Tax Claims 1112

D. Statutory Fees 1112

ARTICLE III. CLASSIFICATION AND TREATMENT OF CLAIMS AND

EQUITY INTERESTS UNDER THE PLAN 1213

A. Summary of Classes Under the Plan 1213

B. Classification and Treatment of Claims and Equity Interests 1314

ARTICLE IV. ACCEPTANCE, REJECTION, AMENDMENT AND REVOCATION

OR WITHDRAWAL OF THE PLAN 1617

A. Classes Entitled to Vote 1617

B. Acceptance by Class of Claims 1617

C. Nonconsensual Confirmation 1718

D. Revocation or Withdrawal; No Admissions 1718

E. Amendment of Plan Documents 1718

F. Special Provision Governing Unimpaired Claims 18

ARTICLE V. MEANS FOR IMPLEMENTATION OF THE PLAN 18

A. Creation and Vesting 18

B. Execution and Implementation 1819

C. Liquidating Trust Assets 19

D. Liquidating Trustee 1920

E. Powers of Liquidating Trustee 1920

F. Corporate Action 2022

G. Costs and Expenses 2122

H. Compensation of Liquidating Trustee 2122

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 5 of 171
I. Retention of Professionals 2123

J. Tax Consequences of Liquidating Trust 2123

K. Duration 2223

L. Indemnification 2224

M. Bond 2324

N. Resignation, Death or Removal 2325

O. Preservation of Causes of Action 2425

P. Prosecution and Settlement of Causes of Action 2526

ARTICLE VI. PROVISIONS GOVERNING DISTRIBUTIONS 2526

A. Manner of Cash Payments Under the Plan 2526

B. Entity Making Distributions 2527

C. Distribution Dates 2527

D. Record Date for Distributions 2527

E. Delivery of Distributions 2627

F. Undeliverable and Unclaimed Distributions 2627

G. Compliance with Tax Requirements 2628

H. No Payments of Fractional Dollars 2729

I. Interest on Claims 2729

J. No Distribution in Excess of Allowed Amount of Claim 2829

K. Setoff and Recoupment 2829

L. De Minimis Distributions; Charitable Donation 2829

M. Withholding from Distributions 2830

N. Distributions in Satisfaction; Allocation 2930

O. No Distributions on Late-Filed Claims 2930

ARTICLE VII. DISPUTED CLAIMS 2931

A. Resolution of Disputed Claims 2931

B. Objection Deadline 2931

C. Estimation of Claims 3031

D. No Distributions Pending Allowance 3031

ARTICLE VIII. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED

LEASES 3032

A. General Treatment: Rejected if not Previously Assumed 3032

B. Bar to Claims Arising from Rejection, Termination or Expiration 3132

ii

Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 6 of 171
C. Assumption of Executory Contracts and Unexpired Leases 3133

D. Indemnification and Reimbursement 3234

ARTICLE IX. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE 3334

A. Conditions Precedent 3334

B. Waiver 3334

ARTICLE X. EFFECT OF CONFIRMATION; INDEMNIFICATION,

INJUNCTIVE AND RELATED PROVISIONS 3335

A. Compromise and Settlement 3335

B. Binding Effect 3435

C. Discharge of Claims 3435

D. No Discharge of the Debtor 3436

E. Exculpation 3436

F. Limitations on Exculpation and Releases 3536

G. Injunction 3536

H. Release of Liens 3637

ARTICLE XI. RETENTION OF JURISDICTION 3638

ARTICLE XII. MISCELLANEOUS PROVISIONS 3739

A. Modification of Plan 3739

B. Revocation of Plan 3839

C. Binding Effect 3839

D. Successors and Assigns 3840

E. Governing Law 3840

F. Reservation of Rights 3940

G. Section 1125(e) Good Faith Compliance 3940

H. Further Assurances 3940

I. Service of Documents 3941

J. Filing of Additional Documents 3941

K. No Stay of Confirmation Order 3941

L. Bankruptcy Rule 9019 Request; Impact 4041

M. Automatic Stay 4041

Exhibit 1 – Form of Liquidating Trust Agreement

iii

Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 7 of 171
FIRST AMENDED CHAPTER 11 PLAN OF LIQUIDATION

UNDER CHAPTER 11 OF THE BANKRUPTCY CODE

Aventura Hotel Properties, LLC (the “Debtor”) proposes this First Amended

Chapter 11 Plan of Liquidation1 (and including all Plan Documents and other attachments

hereto, as any of the same may be amended from time to time, all of which are incorporated

herein by reference and are a part of, the “Amended Plan” or “Plan”), pursuant to the provisions

of chapter 11 of the Bankruptcy Code (as defined in Article I.A herein (“Defined Terms”)).

Pursuant to the terms of this Plan, the Debtor will transfer the Property, its principal asset, to the

Success Bidder determined under the Sale Approval Order under Section 363 of the Bankruptcy

Code.

The Plan is subject to the Debtor successfully consummating a sale of its

principal asset, an acre of land in Miami Dade County, Florida. In order for the Debtor to

successfully confirm this Plan and comply with its present obligations to senior lender LV

Midtown, LLC, it must sell the property for at least $22 million. If the Debtor is unable

close on such a transaction, or otherwise renegotiate the terms of the LV Settlement

Agreement (as defined below), either pursuant to the Sale Approval Order (as defined

below) or otherwise, the Debtor may instead elect to seek dismissal or conversion of its

bankruptcy case pursuant to Section 1112 of the Bankruptcy Code. 

On August 11, 2021, the Debtor proposed its initial Plan of Liquidation [ECF No.

109] (the “Initial Plan”). The Initial Plan contemplated a sale of the property for $25.5 million

pursuant to a sales contract with Integra Real Estate, LLC (“Integra”). On August 13, 2021,

Integra terminated the contract, thefore requiring an amendment to the Initial Plan. 

For a discussion of the Debtor’s history, business, operations, assets and

liabilities, for a summary and analysis of the Plan, preservation of Causes of Action, risk factors,

liquidation analysis, tax implications and alternatives to the Plan, reference should be made to

the Disclosure Statement for Chapter 11 Plan of Liquidation Proposed by Aventura Hotel

Properties, LLC, dated August 11, 2021, as such disclosure statement may be amended,

modified or supplemented (the “Disclosure Statement”).

ALL HOLDERS OF CLAIMS AND EQUITY INTERESTS ENTITLED TO VOTE

ON THE PLAN ARE ENCOURAGED TO READ THE PLAN AND THE DISCLOSURE

STATEMENT IN THEIR ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT

THE PLAN. SUBJECT TO CERTAIN RESTRICTIONS AND REQUIREMENTS SET

FORTH IN SECTION 1127 OF THE BANKRUPTCY CODE, BANKRUPTCY RULE

3018 AND IN THIS PLAN, THE DEBTOR RESERVES THE RIGHT TO ALTER,

AMEND, MODIFY, REVOKE OR WITHDRAW THE PLAN PRIOR TO ITS

SUBSTANTIAL CONSUMMATION.

1

 All capitalized terms not otherwise defined herein shall be subject to the definition of such capitalized terms in 

Article I.A. hereof.

Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 8 of 171
ARTICLE I.

DEFINED TERMS AND RULES OF INTERPRETATION

A. Defined Terms

Unless the context otherwise requires, the following terms shall have the

following meanings when used in capitalized form herein:

(1) “Administrative Claims” means: (A) Claims that have been timely filed before

the date provided by any other separate order of the Bankruptcy Court, for costs and expenses of

administration under sections 365(d)(3), 503(b), 507(b) or 1114(e)(2) of the Bankruptcy Code,

including, without limitation: the actual and necessary costs and expenses incurred after the

Petition Date of preserving the Estate and operating the businesses of the Debtor (such as wages,

salaries or commissions for services and payments for goods and other services and leased

premises); and (B) the actual and necessary costs and expenses incurred in the ordinary course

by the Debtor after the Petition Date of preserving the Estate that are entitled to priority under

sections 365(d)(3), 503(b) and/or 507(a)(2) of the Bankruptcy Code. Any fees or charges

assessed against the Estate of the Debtor under section 1930 of chapter 123 of title 28 of the

United States Code are excluded from the definition of Administrative Claim and shall be paid in

accordance with Article II.D (the “United States Trustee Fees”) of this Plan. Notwithstanding

anything to the contrary herein, the filing of an Administrative Claim shall not be required in

order to receive payment for any tax liability described in sections 503(b)(1)(B) and (C) in

accordance with section 503(b)(1)(D) of the Bankruptcy Code. For avoidance of doubt,

Professional Fee Claims shall not constitute Administrative Claims.

(2) “Affiliate” means, any Person that is an “affiliate” of the Debtor within the

meaning of section 101(2) of the Bankruptcy Code.

(3) “Allowed” means, with respect to any Claim against the Debtor, except as

otherwise provided herein: (a) a Claim that has been scheduled by the Debtor in its Schedules

filed in the Chapter 11 Case as other than disputed, contingent or unliquidated and as to which

the Debtor or other party-in-interest has not filed an objection by the Claims Objection Bar Date;

(b) a Claim filed in the Chapter 11 Case and that either is not Disputed or has been allowed by a

Final Order; or (c) a Claim filed in the Chapter 11 Case that is allowed: (i) in any stipulation of

amount and nature of Claim executed prior to the Effective Date and approved by the

Bankruptcy Court; (ii) in any stipulation or written agreement with Debtor of the amount and

nature of Claim executed on or after the Effective Date; or (iii) in or pursuant to any contract,

instrument or other agreement entered into or assumed in connection herewith; (d) a Claim that

is allowed pursuant to the terms of this Plan; or (e) a Disputed Claim that the Debtor ultimately

determines will not be objected to (such claim being deemed Allowed at the time such

determination is made).

(4) “Assets” means all assets of the Debtor’s Estate including “property of the estate”

as described in section 541 of the Bankruptcy Code, including Cash, Causes of Action,

securities, proceeds of insurance and insurance policies, all rights and interests in all real and

personal property, and all files, books and records of the Debtor’s Estate, including documents

that are subject to any applicable privilege.

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 9 of 171
(5) “Available Cash” means the Sale Proceeds received under this Plan from the

transfer of the Property at the Closing as contemplated by the Sale Approval Order net of (i)

ordinary and customary closing costs; (ii) the Secured Real Estate Tax Claims securing the Class

1 Claim; and (iii) the Allowed Secured Claim of LV Midtown securing the Class 2 Claim.

(6) “Avoidance Litigation” means the adversary proceeding filed by the Debtor and

Triptych Debtor against QR Triptych, LLC and JQ Real Estate, LLC. See Adv. Case No.

21-12374-RAM. The Avoidance Litigation was filed to avoid certain inequitable transactions

made for the benefit of QR Triptych - a former equity investor in the Triptych Debtor– that were

paid from the assets of Debtor AHP. In summary, Debtors seek to avoid (i) $2.2 million

transferred by Debtor AHP to Defendant JQRE (an entity related to QR Triptych and to which

the Debtors were not indebted); (ii) $3 million transferred by Debtor AHP to Defendant QR

Triptych on account of its equity in Debtor TMH; and (iii) the incurrence by Debtor AHP of an

$8.2 million subordinated mortgage in favor of Defendant QR Triptych in exchange for nothing

of value to Debtor AHP. The Debtors also objected to QR Triptych’s filed proof of claim and

seek mandatory and equitable subordination.

(7) “Bankruptcy Code” means Articles 101 et seq. of title 11 of the United States

Code, and applicable portions of titles 18 and 28 of the United States Code.

(8) “Bankruptcy Court” means the United States Bankruptcy Court for the Southern

District of Florida, Miami Division.

(9) “Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure,

promulgated under 28 U.S.C. § 2075, the Local Rules of the Bankruptcy Court, and general

orders and chambers procedures of the Bankruptcy Court, each as applicable to the Chapter 11

Case and as amended from time to time.

(10) “Bar Date Order” means that certain Notice of Chapter 11 Bankruptcy Case,

Meeting of Creditors & Deadlines dated as of March 15, 2021 [ECF No. 1], establishing May

21, 2021 as the general bar date for filing proofs of Claim in the Chapter 11 Case and September

8, 2021 as the bar date for governmental units to file a proof of Claim.

(11) “Books and Records” means all books and records of the Debtor, including,

without limitation, all documents and communications of any kind, whether physical or

electronic.

(12) “Business Day” means any day, other than a Saturday, Sunday or “legal holiday”

(as that term is defined in Bankruptcy Rule 9006(a)).

(13) “Broker” means John K. Crotty and firm of Avison Young – Florida, LLC,

retained pursuant to Order of the Bankruptcy Court [ECF No. 53].

(14) “Broker Fee” means Sales Proceeds due as compensation to Broker pursuant to

the Listing Agreement [ECF No. 41 at Ex. A] approved by the Bankruptcy Court [ECF No. 53].

(15) “Cash” means cash and cash equivalents in certified or immediately available

U.S. funds, including but not limited to bank deposits, checks and similar items.

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 10 of 171
(16) “Causes of Action” means (i) the Avoidance Litigation; and (ii) all claims,

actions, causes of action, choses in action, suits, debts, dues, sums of money, accounts,

reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises,

variances, trespasses, damages, judgments, remedies, rights of setoff, third-party claims,

subrogation claims, contribution claims, reimbursement claims, indemnity claims, counterclaims

and cross claims (including, without limitation, all claims and causes of action that constitute

property of the estate under Section 541 of the Bankruptcy Code, all claims and any avoidance,

preference, recovery, subordination or other actions against Creditors, insiders and/or any other

entities under the Bankruptcy Code, and any and all state and common law claims for breach of

fiduciary duty against directors, officers and/or managers solely to the extent such directors,

officers and/or managers served in such capacity prior to the Effective Date) against any Person

or Entity, based in law or equity, including, without limitation, under the Bankruptcy Code,

whether direct, indirect, derivative or otherwise and whether asserted or unasserted as of the

Effective Date, including, but not limited to, any action under sections 502, 506, 510, 522(f),

522(h), 542, 543, 544, 545, 547, 548, 549, 550, 551, 553 and 724(a) of the Bankruptcy Code

(other than those which are released or dismissed as part of and pursuant to the Plan or any

previous Order of the Bankruptcy Court), including the Debtor’s rights of setoff, recoupment,

contribution, reimbursement, subrogation or indemnity (as those terms are defined by the

non-bankruptcy law of any relevant jurisdiction) and any other direct or indirect claim of any

kind whatsoever, whenever and wherever arising or asserted.

(17) “Chapter 11 Case” means the chapter 11 case commenced when the Debtor filed

a voluntary petition for relief under chapter 11 of the Bankruptcy Code on the Petition Date.

(18) “Claim” means (a) a right to payment, whether or not such right is reduced to

judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,

legal, equitable, secured, or unsecured; (b) a right to an equitable remedy for breach of

performance if such breach gives rise to a right to payment, whether or not such right to an

equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,

undisputed, secured, or unsecured; or (c) any other claim, as such term is defined in section

101(5) of the Bankruptcy Code.

(19) “Claims Objection Bar Date” means the bar date for objecting to proofs of Claim

as established by order of the Bankruptcy Court; provided, however, that the Debtor or the

Liquidating Trustee, as applicable, may seek additional extensions of this date from the

Bankruptcy Court, with notice only to those parties entitled to notice in the Chapter 11 Case

pursuant to Bankruptcy Rule 2002. A party requesting to extend the Claims Objection Bar Date

may specify which entities may benefit from such an extension.

(20) “Class” means a category of holders of Claims or Equity Interests as set forth in

Article III herein and pursuant to section 1122(a) of the Bankruptcy Code.

(21) “Class A Beneficial Interests” means those certain Class A beneficial interests in

the Liquidating Trust to be issued to the Holders of the Allowed General Unsecured Claims

representing the right to Distributions from the proceeds of the Liquidating Trust Assets, which

Class A beneficial interests shall not be certificated, but shall have priority for all purposes to

Distributions over the Class B Beneficial Interests.

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 11 of 171
(22) “Class B Beneficial Interests” means those certain Class B beneficial interests in

the Liquidating Trust to be issued to the Holders of Allowed Equity Interests representing the

right to Distributions from the proceeds of the Liquidating Trust Assets, which Class B

beneficial interests shall not be certificated, but shall be subordinated in all respects to the

payment in full of all Allowed General Unsecured Claims represented by the Class A Beneficial

Interests.

(23) “Closing” means the transfer by the Debtor of the Property to the Successful

Bidder free and clear of liens, claims and encumbrances as contemplated by the Sale Approval

Order.

(24) “Confirmation Date” means the date on which the Confirmation Order is entered

by the Bankruptcy Court.

(25) “Confirmation Hearing” shall mean the hearing conducted by the Bankruptcy

Court to consider confirmation of the Plan under Section 1129 of the Bankruptcy Code.

(26) “Confirmation Order” means the order of the Bankruptcy Court confirming the

Plan pursuant to section 1129 of the Bankruptcy Code.

(27) “Creditor” shall have the meaning in section 101(10) of the Bankruptcy Code.

(28) “Cure” means a Claim for all non-contingent, accrued and unpaid monetary

obligations, or adequate assurance of cure or compensation, or other amounts as may be agreed

upon by the parties, under an executory contract or unexpired lease (or assumed or assumed and

assigned) by any Debtor pursuant to section 365 of the Bankruptcy Code or the Plan.

(29) “Cure Claim” means a Claim for a Cure.

(30) “Debtor” means Aventura Hotel Properties, LLC, and where applicable, the

Estate thereof.

(31) “Debtor in Possession” means the Debtor in its capacity as a debtor in possession

pursuant to sections 1107 and 1108 of the Bankruptcy Code.

(32) “Deficiency Claim” means any Unsecured Claim for all, or any portion of, a

Secured Claim that is determined to be unperfected or undersecured.

(33) “Disallowed” with respect to a Claim means a Claim that is not Allowed.

(34) “Disclosure Statement” means the Amended Disclosure Statement and exhibits

thereto that relate to this Amended Plan and prepared pursuant to Section 1125 of the

Bankruptcy Code, as amended, modified or supplemented from time to time, which has been

approved by the Bankruptcy Court and which is distributed to holders of Claims and Equity

Interests with this Plan.

(35) “Disclosure Statement Order” means that certain order of the Bankruptcy Court,

dated _____________, 2021 [ECF No. ____] approving, among other things, the Disclosure

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 12 of 171
Statement as containing adequate information pursuant to Section 1125 of the Bankruptcy Code,

and setting various deadlines in connection with Confirmation of the Plan.

(36) “Disputed” means, with respect to any Claim: (a) listed on the Schedules as

unliquidated, disputed or contingent, unless a proof of Claim has been filed in a liquidated,

non-contingent amount; (b) as to which the Debtor, the Liquidating Trustee or any other party in

interest, as applicable, has interposed a timely objection or request for estimation in accordance

with the Bankruptcy Code and the Bankruptcy Rules; or (c) as otherwise disputed in accordance

with applicable bankruptcy or insolvency law, which objection, request for estimation or dispute

has not been withdrawn or determined by a Final Order.

(37) “Disputed Claims Fund” shall mean a fund established by the Liquidating Trustee to 

(i) hold any Excess Sale Proceeds pending the determination of the Disputed Claim of QR Triptych;

and (ii) hold any distribution that would otherwise be paid to a Disputed Claim and in each case

maintaining sufficient funds to pay and reserve for accruing interest on Disputed Claims, and

potential fees, costs, penalties or other charges against the Estate that could be incurred in

connection with the allowance of a Disputed Claim to the extent permitted in such contract by

and between the Debtor and Holder of the Disputed Claim. Claims estimated by the Bankruptcy

Court at $0 for all purposes in the Bankruptcy Case are disallowed in their entirety, are not

Disputed Claims, and are not entitled to any distributions under the Plan.

(38) (37) “Distributions” means the distributions of Cash to be made in accordance

with the Plan.

(39) (38) “Distribution Agent” means the Person or Entity responsible for making

Distributions under the Plan, which will be the Debtor or the Liquidating Trustee as set forth

herein.

(40) (39) “Effective Date” means, subject to the satisfaction or waiver as applicable of

the conditions set forth in Article IX, a date that is not later than ten (10) calendar says after the

Confirmation Order is entered. Within one (1) Business Day of the Effective Date, the Debtor or

the Liquidating Trustee, as applicable, shall file a notice of the Effective Date with the

Bankruptcy Court.

(41) (40) “Entity” has the meaning set forth in section 101(15) of the Bankruptcy

Code.

(42) (41) “Equity Interests” means the membership interests in the Debtor as of the

Petition Date, which membership interests are owned 100% by Triptych Miami Holdings, LLC,

a jointly administered debtor (Case No. 21-12375-RAM).

(43) (42) “Estate” means the Debtor’s estate created pursuant to section 541 of the

Bankruptcy Code upon the filing of the Chapter11 Case.

(44) (43) “Excess Sale Proceeds” means the Available Cash up to the amount of the

Disputed Claim of QR Triptych, net of: (i) Priority Tax Claims; (ii) Administrative Claims; (iii)

Statutory Fees; (iv) the Broker Fee; (v) the Surcharge Contribution; (vi) the QR Triptych

Surcharge; and (vii) the Section 1146(a) Recovery.

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 13 of 171
(45) (44) “Final Decree” means the decree contemplated under Bankruptcy Rule

3022.

(46) (45) “Final Order” means an order or judgment of the Bankruptcy Court, or

other court of competent jurisdiction with respect to the subject matter, which has not been

reversed, stayed, modified or amended, and as to which the time to file an appeal, motion for

reconsideration or rehearing, or request for a stay has expired with no appeal, motion for

reconsideration or rehearing, or request for a stay having been timely filed.

(47) (46) “General Bar Date” means May 21, 2021, as established in the Bar Date

Order.

(48) (47) “General Unsecured Claims” means Claims against the Debtor that are not

Administrative Claims, Professional Fee Claims, Priority Tax Claims, Other Priority Claims,

Secured Claims or Equity Interests.

(49) (48) “Impaired” means “impaired” within the meaning of sections 1123(a)(4)

and 1124 of the Bankruptcy Code, with respect to a Claim, Equity Interest, or Class of Claims or

Equity Interests.

(50) (49) “Lien” means any lien, mortgage, charge, security interest, pledge or other

encumbrance against or interest in property to secure payment or performance of a claim, debt or

litigation.

(51) (50) “Liquidating Trust” means that certain irrevocable grantor trust created and

established pursuant to the Plan for the benefit of Holders of Allowed Claims against and

Allowed Equity Interests in the Debtor, into which the Liquidating Trust Assets shall be

transferred and vested on the Effective Date for all purposes under the Plan.

(52) (51) “Liquidating Trust Agreement” means that certain Liquidating Trust

Agreement, the form of which is attached hereto as Exhibit 1 to the Plan, and which sets forth

the terms and conditions of the Liquidating Trust, as well as the duties and responsibilities of the

Liquidating Trustee. The final version of the Liquidating Trust Agreement shall be filed prior to

the Confirmation Hearing, and its terms shall be treated as if comprising the terms of the Plan.

(53) (52) “Liquidating Trust Assets” means all Assets of the Debtor and the Debtor’s

Estate in existence on the Effective Date of the Plan which Assets (i) are proposed to be

transferred to and vested in the Liquidating Trust under and in accordance with the terms of the

Plan and Confirmation Order on the Effective Date of the Plan, and (ii) shall include all Assets

as may have been created by virtue of the Bankruptcy Code, and expressly includes all Causes of

Action and the rights to prosecute, enforce and settle same. The Liquidating Trust Assets

include (i) Available Cash; (ii) the Surcharge Contribution and QR Triptych Surcharge to the

extent not otherwise used to satisfy Administrative Claims, Professional Fee Claims, and

Statutory Fees; and (iii) the Section 1146(a) Recovery.

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 14 of 171
(54) (53) “Liquidating Trust Beneficiaries” means the Holders of Allowed Claims

and Allowed Equity Interests as of the Effective Date and Holders of any Disputed Claims

provided for in the Disputed Claims Fund.

(55) (54) “Liquidating Trust Beneficial Interests” means the Class A Beneficial

Interests and the Class B Beneficial Interests.

(56) (55) “Liquidating Trustee” means ______________________, individually, the

Liquidating Trustee named to administer the Liquidating Trust pursuant to the terms hereof, and

all successor Liquidating Trustees.

(57) (56) “Liquidating Trust Reserve” means the amount of Available Cash

determined from time to time by the Liquidating Trustee in the exercise of his business judgment

required to be reserved from any Distribution in order to pay post-confirmation U.S. Trustee fees

and all obligations of the Liquidating Trust, including fees and expenses of Professionals

engaged by the Liquidating Trustee.

(58) (57) “LV Settlement Agreement” shall mean the Settlement and Compromise

with LV Midtown, LLC [ECF No. 55] approved by Order of the Bankruptcy Court on June 17,

2021.

(59) (58) “Net Litigation Proceeds” means all proceeds from the prosecution and/or

settlement of all Causes of Action by the Liquidating Trustee, after payment of all fees and

expenses related thereto, which Net Litigation Proceeds shall be used by the Liquidating Trustee

solely to make Distributions to the holders of Allowed Claims and Allowed Equity Interests

hereunder.

(60) (59) “Other Priority Claims” means Claims accorded priority in right of

payment under section 507(a) of the Bankruptcy Code, other than Priority Tax Claims.

(61) (60) “Person” means an individual, partnership, corporation, limited liability

company, cooperative, trust, estate, unincorporated organization, association, joint venture,

government unit or agency or political subdivision thereof or any other form of legal entity or

enterprise.

(62) (61) “Petition Date” means March 12, 2021, the date on which the Debtor filed

the Chapter 11 Case.

(63) (62) “Plan” has the meaning set forth in the preamble hereof.

(64) (63) “Plan Documents” means the documents, if any, that aid in effectuating the

Plan, including, without limitation, all addenda, exhibits, schedules, which documents (as may

be amended, modified or supplemented from time to time) shall be in form and substance

reasonably acceptable to the Debtor and shall be filed no later than 10 days prior to the

Confirmation Date.

(65) (64) “Priority Tax Claims” means Claims of governmental units of the kind

specified in section 507(a)(8) of the Bankruptcy Code.

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(66) (65) “Pro Rata” shall mean the proportion (expressed as a percentage) that the

amount of a Claim in a particular Class or Classes bears to the aggregate amount of all Claims

(including Disputed Claims, but excluding disallowed Claims) in such Class or Classes, unless

this Plan provides otherwise.

(67) (66) “Professionals” means any Person (i) employed in the Chapter 11 Case

pursuant to a Final Order in accordance with sections 105, 327, 328, 363 or 1103 of the

Bankruptcy Code, and to be compensated for services rendered prior to the Effective Date

pursuant to sections 105, 327, 328, 329, 330, 331 or 363 of the Bankruptcy Code and (ii)

employed by the Liquidating Trustee.

(68) (67) “Professional Fee Claim” means a Claim of any Professional for

compensation and reimbursement of expenses to the extent allowed by the Bankruptcy Court

under Section 330(a) or Section 331 of the Bankruptcy Code or otherwise.

(69) (68) “Property” shall mean the Debtor’s right, title and interest in the assemblage

of land located at 3601 N. Miami Avenue, in Miami-Dade County, Florida as more particularly

described on Exhibit “A” attached to the Contract approved by the Sale Approval Order.

(70) (69) “Property Taxes” shall mean real estate property taxes due the Miami Dade

Tax Collector which constitute a lien on the Property pursuant to Fla. Stat. §197.122.

(71) (70) “Property Tax Certificates” shall mean Property Taxes for tax year 2019

that have been certificated and purchased by third parties as set forth by the Miami-Dade County

Tax Collector in their Notice to Debtor of Additional Creditors [ECF No. 28].

(72) (71) “QR Triptych Surcharge” shall mean any surcharge that may be asserted

and recovered by the Debtor from the Property under 11 U.S.C. §506(c)of the Bankruptcy Code

to the extent that QR Triptych, LLC is determined to hold an Allowed secured claim against the

Property as determined by the Bankruptcy Court in accordance with 11 U.S.C. §506(a)(1) of the

Code and/or in connection with the Avoidance Litigation and/or in connection with the Section

1146(a) Recovery but excluding the Surcharge Contribution.

(73) (72) “Record Date” means the date that the Disclosure Statement is approved by

the Bankruptcy Court pursuant to the Disclosure Statement Order.

(74) (73) “Reinstated” or “Reinstatement” means, with respect to any Claim of

Interest, the treatment provided for in section 1124 of the Bankruptcy Code.

(75) (74) “Representatives” means, with regard to an Entity (including the Debtor),

any current or former partners, officers, directors, employees, attorneys, Professionals,

accountants, investment bankers, financial advisors, consultants, agents and other representatives

(including their respective officers, directors, employees, independent contractors, members and

professionals).

(76) (75) “Sale Approval Order” shall mean the Order Granting

Debtor’s Motion for Entry of an Order (A) Authorizing the Sale of Real Property of the Chapter

11 Estate Free and Clear of Liens, Claims and Encumbrances Pursuant to 11 U.S.C. §363; (B)

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Establishing Bidding Procedures and Sale Process; (C) Approving Asset Purchase Agreement

with Integra Real Estate, LLC; (D) Scheduling Sale Hearing; and (E) Granting Related Relief

[ECF No. 106].

(77) (76) “Sale Proceeds” shall mean all cash received pursuant to the

Plan from the transfer of the Property to a Successful Bidder (as defined in the Sale Approval

Order) at the closing contemplated by the Sale Approval Order.

(78) (77) “Schedules” mean the schedules of assets and liabilities, schedules of

executory contracts and statements of financial affairs filed by the Debtor pursuant to section

521 of the Bankruptcy Code [ECF No. 25], as may be amended, modified or supplemented from

time to time.

(79) (78) “Schedule of Assumed Executory Contracts and Unexpired Leases” means

the schedule to be included in the Disclosure Statement or Plan Documents and identifying (i)

the executory contracts and unexpired leases to be assumed by the Debtor; and (ii) the amount of

Cure Claims with respect to each executory contract or unexpired lease proposed to be assumed.

(80) (79) “Secured Claims” means Claim(s) against the Debtor that are secured by a

Lien on property in which the Estate has an interest, which Liens are valid, perfected and

enforceable under applicable law or by reason of a Final Order, or that are subject to setoff under

section 553 of the Bankruptcy Code, to the extent of the value of the Claim holder’s interest in

the Estate’s interest in such property or to the extent of the amount subject to setoff, as

applicable, as determined pursuant to section 506(a) of the Bankruptcy Code.

(81) (80) “Surcharge Contribution” means Sale Proceeds up to the amount of

$800,000 that are otherwise the collateral of LV Midtown, LLC, but shall be contributed to the

Debtor as provided in the LV Settlement Agreement if the Sale Proceeds exceed Release Price

(as defined in the LV Settlement Agreement and as otherwise provided by 11 U.S.C. §506(c) of

the Bankruptcy Code) in the amount of $19,600,000, but excluding the QR Triptych Surcharge.

(82) (81) “Section 1146(a) Recovery” shall mean any cash saved or not expended by

the Debtor as a result of transferring the Property pursuant to this Plan and being exempted from

the payment of any transfer tax, stamp tax, and Miami-Dade Surcharge Tax pursuant Section

1146(a) of the Bankruptcy Code.

(83) (82) “Tax Code” means the United States Internal Revenue Code of 1986, as

amended.

(84) (83) “Triptych Case” means the chapter 11 bankruptcy case styled In re Triptych

Miami Holdings, LLC, Case No. 21-12375-RAM pending in the Bankruptcy Court and jointly

administered with this Chapter 11 Case.

(85) (84) “Triptych Debtor” shall mean Triptych Miami Holdings, LLC, as a

debtor-in-possession in the Triptych Case.

(86) (85) “U.S. Trustee” means the United States Trustee appointed under Article 591

of title 28 of the United States Code to serve in the Southern District of Florida.

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(87) (86) “Unimpaired” means not “impaired” within the meaning of sections

1123(a)(4) and 1124 of the Bankruptcy Code, with respect to a Claim, Equity Interest, or Class

of Claims or Equity Interests.

B. Rules of Interpretation

(i) For purposes herein: (a) in the appropriate context, each term, whether stated in

the singular or the plural, shall include both the singular and the plural, and pronouns stated in

the masculine, feminine or neutral gender shall include the masculine, feminine and the neutral

gender; (b) any reference herein to a contract, instrument, release, indenture or other agreement

or document being in a particular form or on particular terms and conditions means that the

referenced document shall be substantially in that form or substantially on those terms and

conditions; (c) any reference herein to an existing document or exhibit having been filed or to be

filed shall mean that document or exhibit, as it may thereafter be amended, modified or

supplemented; (d) unless otherwise specified, all references herein to “Articles” are references to

Articles hereof or hereto; (e) the words ‘‘herein,’’ “hereof” and ‘‘hereto’’ refer to the Plan in its

entirety rather than to a particular portion of the Plan; (f) captions and headings to Articles are

inserted for convenience of reference only and are not intended to be a part of or to affect the

interpretation hereof; (g) the rules of construction set forth in section 102 of the Bankruptcy

Code shall apply; and (h) any term used in capitalized form herein that is not otherwise defined

but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned

to that term in the Bankruptcy Code or the Bankruptcy Rules, as the case may be.

(ii) The provisions of Federal Rule of Bankruptcy Procedure 9006(a) shall apply in

computing any period of time prescribed or allowed hereby.

(iii) All references herein to monetary figures shall refer to currency of the United

States of America, unless otherwise expressly provided.

C. Exhibits

All exhibits and schedules to the Plan and Disclosure Statement are incorporated

into and are part of the Plan as if set forth herein.

ARTICLE II

ADMINISTRATIVE CLAIMS, PROFESSIONAL FEE CLAIMS, PRIORITY CLAIMS

AND UNITED STATES TRUSTEE FEES

A. Administrative Claims

The Debtor shall pay each holder of an Allowed Administrative Claim, in

satisfaction of such Allowed Administrative Claim, the full unpaid amount of such Allowed

Administrative Claim in Cash: (1) on the Effective Date or as soon as practicable thereafter (or,

if not then due, when such Allowed Administrative Claim is due or as soon as practicable

thereafter); (2) if such Claim is Allowed after the Effective Date, on the date such Claim is

Allowed or as soon as practicable thereafter (or, if not then due, when such Allowed

Administrative Claim is due or as soon as practicable thereafter); (3) at such time and upon such

terms as may be agreed upon by such holder and the Debtor; or (4) at such time and upon such

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terms as set forth in an order of the Bankruptcy Court; provided, however, that any Claim

seeking administrative expense status included as a part of a proof of claim filed in this Chapter

11 Case shall not qualify as an Administrative Claim. The Administrative Claims shall first be

paid from the Surcharge Contribution and/or the QR Triptych Surcharge.

B. Professional Fee Claims

On or prior to the deadline set by the Bankruptcy Court for Professionals to file final fee

applications, each Professional shall file with the Bankruptcy Court its final fee application

seeking final approval of all fees and expenses from the Petition Date through the Confirmation

Hearing. The Debtor shall pay the Allowed Professional Fee Claim of each Professional from

Available Cash in accordance with the Orders of the Bankruptcy Court unless otherwise agreed

to by the Holder of such Allowed Professional Fee Claim. From and after the Confirmation Date

until the Effective Date, the Debtor, in the ordinary course of business and without the necessity

for any approval by the Bankruptcy Court, shall pay the reasonable fees and necessary and

documented expenses of the Professionals during such period. The Broker Fee shall be satisfied

from Sale Proceeds. Any other Professional Fees shall be paid from the Surcharge Contribution

and the QR Triptych Surcharge.

C. Priority Tax Claims

The Debtor shall pay each holder of an Allowed Priority Tax Claim, in satisfaction of

such Allowed Priority Tax Claim, the full unpaid amount of such Allowed Priority Tax Claim in

Cash, on the later of (i) the Effective Date, (ii) the date such Allowed Priority Tax Claim

becomes Allowed or as soon as practicable thereafter and (iii) the date such Allowed Priority

Tax Claim is payable under applicable non-bankruptcy law; provided, however, that the Debtor

shall not pay any premium, interest or penalty in connection with such Allowed Priority Tax

Claim.

D. Statutory Fees

Notwithstanding any other provisions of the Plan to the contrary, the Debtor shall pay the

United States Trustee the appropriate sum required pursuant to 28 U.S.C. § 1930(a)(6), within

ten (10) days of the entry of the order confirming the Plan, for pre-confirmation periods and

simultaneously file all the Monthly Operating Reports for the relevant periods, indicating the

cash disbursements for the relevant period. The Liquidating Trustee shall further pay the United

States Trustee the appropriate sum required pursuant to 28 U.S.C. § 1930(a)(6), based upon all

post-confirmation periods within the time period set forth in 28 U.S.C. § 1930(a)(6), based upon

all post-confirmation disbursements made by the Liquidating Trustee, until the earlier of the

closing of this case by the issuance of a Final Decree by the Bankruptcy Court, or upon the entry

of an Order by the Bankruptcy Court dismissing this case or converting this case to another

chapter under the United States Bankruptcy Code, and the Liquidating Trustee shall provide to

the United States Trustee upon the payment of each post-confirmation payment, and

concurrently filed with the Court, Post-Confirmation Quarterly Operating reports indicating all

the cash disbursements for the relevant period. The Statutory Fees shall first be paid from the

Surcharge Contribution and the QR Triptych Surcharge.

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ARTICLE III

CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS

UNDER THE PLAN

A. Summary of Classes under the Amended Plan

(i) In accordance with section 1123(a)(1) of the Bankruptcy Code, the Debtor has not

classified Administrative Claims and Priority Tax Claims, as described in Article II.

(ii) The following table classifies Claims against and Equity Interests in the Debtor for all

purposes, including voting, confirmation and Distribution pursuant hereto and pursuant to

sections 1122 and 1123(a)(1) of the Bankruptcy Code. The Plan deems a Claim or Equity

Interest to be classified in a particular Class only to the extent that the Claim or Equity Interest

qualifies within the description of that Class and shall be deemed classified in a different Class to

the extent that any remainder of such Claim or Equity Interest qualifies within the description of

such different Class. A Claim or Equity Interest is in a particular Class only to the extent that

any such Claim or Equity Interest is Allowed in that Class and has not been paid or otherwise

settled prior to the Effective Date. Each Class set forth below is treated hereunder as a distinct

Class for voting and Distribution purposes. Pursuant to the terms of this Plan, the Debtor will

transfer the Property, its principal asset, to the Success Bidder determined under the Sale

Approval Order under Section 363 of the Bankruptcy Code in order to fund distributions under

the Plan.

(iii) Summary of Classification and Treatment of Classified Claims and Equity Interests.

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Class Claim Status Entitled to Vote?

1 Secured Real Estate Tax

Claims

Unimpaired No; Deemed to Accept the

Plan

2 Allowed Secured Claim of

LV Midtown

Impaired Yes

3 Disputed Secured Claim of

QR Triptych

Impaired Yes

4 Allowed General Unsecured

Claims

Impaired Yes

5 Allowed Equity Interests Impaired Yes

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B. Classification and Treatment of Claims and Equity Interests.

(i) Secured Real Estate Tax Claims (Class 1)

(a) Classification: Class 1 consists of Secured Real Estate Tax Claims

(b) Treatment: Except to the extent that a holder of an Secured Real Estate Tax

Claim has been paid by the Debtor prior to the Effective Date or agrees to a different

classification and treatment, each holder of an Allowed Secured Real Estate Tax Claim shall

receive the full unpaid amount of such Secured Real Estate Tax Claim in Cash, on the later of (i)

the Effective Date or as soon as practicable thereafter, (ii) the date such Secured Real Estate Tax

becomes Allowed or as soon as practicable thereafter, and (iii) the date such Allowed Other

Priority Claim is payable under applicable non-bankruptcy law; provided, however, that the

Debtor shall not pay any premium, interest or penalty in connection with such Allowed Other

Priority Claim. The Secured Real Estate Tax Claim include (i) Property Taxes; and (ii) Property

Tax Certificates. To the extent Property Taxes for Tax Year 2021, the real estate taxes payable

by Debtor as Seller under the Sale Approval Order shall be escrowed for payment when due by

the closing agent designated under the Sale Approval Order to consummate that Closing.

(c) Voting: Class 1 is Unimpaired, and therefore, the holders of Secured Real Estate

Tax Claims in Class 1 are not entitled to vote to accept or reject the Plan and are deemed to have

accepted the Plan pursuant to Section 1126(f) of the Bankruptcy Code.

(ii) Allowed Secured Claim of LV Midtown (Class 2)

(a) Classification: Class 2 consists of the Allowed Secured Claim of LV Midtown.

(b) Treatment: On May 19, 2021, Secured Creditor LV Midtown, LLC (“LV

Midtown”) filed a secured claim, Claim No. 5-1, in an amount not less than $18,944,582.14, plus

accrued interest, attorneys’ fees and costs as of the Petition Date in the Bankruptcy Case, which

claim was compromised, impaired by and allowed to the extent set forth in the LV Settlement

(the “Allowed Secured Claim of LV Midtown”). The Allowed Secured Claim of LV Midtown

shall be satisfied by the holder the Allowed Secured Claim of LV Midtown receiving from the

Debtor Sale Proceeds from the Closing of the Property up to the amount of the Release Price as

provided for in the LV Settlement Agreement net of (i) ordinary and customary closing costs; (ii)

the Secured Real Estate Tax Claims securing the Class 1 Claim; and (iii) the Broker Fee, but

only to the extent the Sale Proceeds exceed the Release Price. The Sale Proceeds constitute, in

part, the liquidation of the collateral securing the Class 2 Claim, which the Debtor shall liquidate

at Closing pursuant to a Confirmation Order authorizing the sale of the Property pursuant to

section 363 of the Bankruptcy Code or otherwise; (ii) realization of the indubitable equivalent of

the Class 2 Claim, including either in the form of Cash equal to the value of such collateral

pursuant to section 506(a) of the Bankruptcy Code and/or the return of the collateral securing

such Claim in accordance with 11 U.S.C. § 1129(b)(2)(A)(iii); or (iii) satisfaction of such Class

2 Claim as otherwise authorized by the Code or agreed to by the holder of such Class 2 Claim.

Such satisfaction shall occur on the later of the Effective Date or the date each respective Class 2

Secured Claim of LV Midtown is Allowed by a Final Order. Any portion of the Allowed Claim

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of a holder of a Class 2 Secured Claim of LV Midtown that is not satisfied as part of its Allowed

Class 2 Secured Claim of LV Midtown shall be treated as a Class 5 Allowed General Unsecured

Claim pursuant to the term of this Plan.

(c) Voting: Class 2 is Impaired and therefore, the holder of the Allowed Class 2

Secured Claim of LV Midtown are entitled to vote to accept or reject the Plan.

(iii) Disputed Secured Claim of QR Triptych (Class 3)

(a) Classification: Class 3 consists of the Disputed Secured Claim of QR Triptych.

(b) Treatment: On May 19, 2021, QR Triptych, LLC (“QR Triptych”) filed Claim

No. 6-1 [Debtor AHP] (the “Disputed Secured Claim of QR Triptych”). The Disputed Secured

Claim of QR Triptych asserts a claim against AHP in the principal amount of $8,238,579.20

(“Principal”), and purports to be secured by a subordinate mortgage on the Property. However,

the Disputed Secured Claim of QR Triptych does not contain evidence of AHP’s alleged

indebtedness to QR Triptych and instead relies upon a promissory note evidencing only

indebtedness to LV Midtown. On July 22, 2021, QR Triptych amended the Disputed Secured

Claim of QR Triptych [Claim No. 6-2] to assert a claim for $10,597.809.81, providing for

Principal, plus disputed past-due interest thereon and attorneys’ fees. The QR Disputed Secured

Claim of QR Triptych (as amended) includes a copy of an alleged promissory note purportedly

executed on behalf of the Debtor, which was omitted in the initial Disputed Secured Claim of

QR Triptych. The Debtor objected to the Disputed Secured Claim of QR Triptych (as may be

amended) in the Avoidance Litigation. In the Avoidance Litigation, the Debtor seeks, among

other things, to avoid the mortgage recorded by QR Triptych encumbering the Property and to

recharacterize the Disputed Claim of QR Triptych as subordinated equity in the Triptych Debtor.

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The Debtor shall reserve and contribute to the Liquidating Trust the Excess Sale

Proceeds. The Excess Sale Proceeds shall be held in trust by the Liquidating Trustee and shall

be disbursed in accordance with any Final Order, decree or judgment entered by the Bankruptcy

Court resolving or adjudicating the Avoidance Litigation after the expiration of all appellate

periods of the resolution of any appeals thereof. In the event that the Bankruptcy Court

determines, after the exhaustion of all appeals, that the holder of the Disputed Secure Claim of

QR Triptych is, in whole or in part, entitled to assert an allowed claim secured against the

Property and/or Excess Sale Proceeds, or any portion thereof, then the holder of the Disputed

Secured Claim of QR Triptych shall be entitled to (i) receive a distribution of the Excess Sale

Proceeds up to the amount the Bankruptcy Court determines the Disputed Secured Claim of QR

Triptych, less the QR Triptych Surcharge that the Bankruptcy Court may determine and award

under Sections 506(a) and 506(c) of the Bankruptcy Code; (ii) realization of the indubitable

equivalent of the Disputed Secured Claim of QR Triptych, including either in the form of Cash

equal to the value of such collateral pursuant to section 506(a) of the Bankruptcy Code and/or

the return of the collateral securing such Claim in accordance with 11 U.S.C. §1129(b)(2)(A)(iii)

of the Bankruptcy Code; or (iii) satisfaction of such Disputed Secured Claim of QR Triptych as

otherwise authorized by the Bankruptcy Code or agreed to by the holder of the Disputed Secured

Claim of QR Triptych. If the Disputed Secured Claim of QR Triptych is recharacterized as

equity in the Triptych Debtor by a final, non-appealable order, decree or judgment of the

Bankruptcy Court, then it shall be treated in accordance with the treatment provided for in any

plan of reorganization that may be confirmed for the Triptych Debtor or as otherwise provided

for under applicable law.

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(c) Voting: Class 3 is Impaired and therefore, the holder of the Allowed Class 3

Secured Claim of QR Triptych are entitled to vote to accept or reject the Plan.

(d) Allowed General Unsecured Claims (Class 4)

(e) Classification: Class 4 consists of the Allowed General Unsecured Claims.

(f) Treatment: In full satisfaction, settlement, release, extinguishment and

discharge of each such Allowed General Unsecured Claim, each Holder of an Allowed General

Unsecured Claim shall receive a Class A Beneficial Interest in the Liquidating Trust on a Pro

Rata basis with all other Holders of Allowed General Unsecured Claims. Such Class A

Beneficial Interest shall entitle such Holder to Distributions from time to time from the

Liquidating Trust, as determined by the Liquidating Trustee in the exercise of his business

judgment after accounting for any Liquidating Trust Reserves, on a Pro Rata basis with the

Holders of all Class A Beneficial Interests in the Liquidating Trust, which Distributions will be

made from Available Cash on deposit from time to time with the Liquidating Trust, provided

that the maximum Distributions to the Holders of Allowed General Unsecured Claims shall be

the full amount of each Allowed General Unsecured Claim without interest. The first

Distribution shall be made as soon as reasonably practicable following the Effective Date,

provided however, that any Distribution to the Holders of Disputed Claims shall be reserved in

the Disputed Claims Fund. No Distribution shall be made to Holders of Allowed General

Unsecured Claims unless and until (i) all Allowed Administrative Claims, all Allowed

Professional Fee Claims, all Allowed Priority Tax Claims, all U.S. Trustee Fees and all Claims

in Classes 2 and 3 have been paid in full, reserved or otherwise resolved, and (ii) the Liquidating

Trustee has paid or reserved for all obligations of the Liquidating Trust and has established the

Liquidating Trust Reserve in connection therewith. Notwithstanding, the Liquidating Trustee

may distribute to Holders of Allowed General Unsecured Claims (i) any portion of the Surcharge

Contribution received as a Liquidating Trust Asset and not otherwise used by the Liquidating

Trustee to pay expenses of the Liquidating Trust; and (ii) any Sale Proceeds in excess of the

Disputed Claim of QR Triptych.

(g) Voting: Class 5 is Impaired and therefore, the holders of Allowed Class 5 General

Unsecured Claims are entitled to vote to accept or reject the Plan.

(iv) Equity Interests (Class 5)

(a) Classification: Class 5 consists of the Equity Interests.

(b) Treatment: In full satisfaction, settlement, release, extinguishment and discharge

of the Allowed Class 6 Equity Interest, the Triptych Debtor shall receive a Class B Beneficial

Interest in the Liquidating Trust, which Class B Beneficial Interest shall entitle the Triptych

Debtor to receive Distributions from time to time from the Liquidating Trust, as determined by

the Liquidating Trustee in the exercise of their business judgment after accounting for any

Liquidating Trust Reserves, from Available Cash on deposit from time to time with the

Liquidating Trust, provided that no Distribution shall be made to the Triptych Debtor on account

of the Allowed Class 5 Equity Interest unless and until (i) all Allowed Administrative Claims, all

Allowed Professional Fee Claims, all Allowed Priority Claims, all Allowed Priority Tax Claims,

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all U.S. Trustee Fees, all Claims in Classes 2 and 3 and all Allowed General Unsecured Claims

in Class 4 represented by the Class A Beneficial Interests have been paid in full, reserved or

otherwise resolved, and (ii) the Liquidating Trustee has paid or reserved for all obligations of the

Liquidating Trust and has established the Liquidating Trust Reserve in connection therewith.

(c) Voting: Class 5 is Impaired and therefore, the Triptych Debtor is entitled to vote

to accept or reject the Plan.

ARTICLE IV

ACCEPTANCE, REJECTION, AMENDMENT AND

REVOCATION OR WITHDRAWAL OF THE PLAN

A. Classes Entitled to Vote

Each holder of a Claim, as of the Record Date, in an Impaired Class shall be entitled to

vote to accept or reject the Plan, in its sole and absolute discretion, subject to applicable law.

Class 1 is unimpaired and therefore deemed to have accepted the Plan. Classes 2, 3, 4and 5 are

impaired. Votes from holders of Claims in Classes 2 through 5 will be solicited as provided in

such order as is entered by the Bankruptcy Court establishing procedures with respect to the

solicitation and tabulation of votes to accept or reject the Plan, or any other order or orders of the

Bankruptcy Court.

B. Acceptance by Class of Claims and Equity Interests

Impaired Class of Claims shall be deemed to accept the Plan if (a) holders (other than any

holder designated under section 1126(e) of the Bankruptcy Code) of at least two-thirds in dollar

amount of the Allowed Claims actually voting in such Class have voted to accept the Plan and

(b) the holders (other than any holder designated under section 1126(e) of the Bankruptcy Code)

of more than one-half in number of the Allowed Claims actually voting in such Class have voted

to accept the Plan. For purposes of calculating the number of Allowed Claims in a Class of

Claims that have voted to accept or reject the Plan under section 1126(c) of the Bankruptcy

Code, all Allowed Claims in such Class held by one Entity or any Affiliate thereof shall be

aggregated and treated as one Allowed Claim in such Class. For purposes of any Claim in any

Impaired Class that is Disputed as to its amount only, the holder of such claim shall be entitled to

vote on the Plan as if such holder held an Allowed Claim in an amount equal to the undisputed

portion of such Claim.

Impaired Class of Equity Interests shall be deemed to accept the Plan if holders (other

than any holder designated under section 1126(e) of the Bankruptcy Code) of at least two-thirds

in in amount of the Allowed Equity Interests actually voting in such Class have voted to accept

the Plan. For purposes of calculating the number of Allowed Equity Interests in a Class of

Equity Interests that have voted to accept or reject the Plan under section 1126(d) of the

Bankruptcy Code, all Allowed Equity Interests in such Class held by one Entity or any Affiliate

thereof shall be aggregated and treated as one Allowed Interest in such Class.

C. Nonconsensual Confirmation

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In the event that any Class of Claims or Equity Interests entitled to vote shall not

accept the Plan by the requisite statutory majority required by section 1129(a) of the Bankruptcy

Code, the Debtor reserves the right to (a) request that the Bankruptcy Court confirm the Plan in

accordance with section 1129(b) of the Bankruptcy Code with respect to such non-accepting

Class, in which case the Plan shall constitute a motion for such relief, or (b) alter, amend or

modify the Plan in accordance with Article XIII. The Debtor shall exercise the right to seek

confirmation of the Plan under section 1129(b) of the Bankruptcy Code.

D. Revocation or Withdrawal; No Admissions

Right to Revoke or Withdraw. The Plan may be revoked or withdrawn prior to the

Confirmation Date by the Debtor in its sole discretion.

Effect of Withdrawal or Revocation; No Admissions. If the Plan is revoked or

withdrawn prior to the Confirmation Date, then the Plan shall be deemed null and void. In such

event, nothing contained herein shall be deemed to constitute a waiver or release of any claims

or defenses or any admission or statement against interest by any Debtor or any other Person or

to prejudice in any manner the rights of the Debtor or any Person in any further proceedings

involving the Debtor.

E. Amendment of Plan Documents

From and after the Effective Date, the authority to amend, modify, or supplement

the Plan, the Exhibits to the Plan and any documents attached to such Plan and Exhibits to the

Plan shall be as provided in such Plan and Exhibits to the Plan and their respective attachments.

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F. Special Provision Governing Unimpaired Claims

Except as otherwise provided in the Plan, nothing under the Plan shall affect the

Debtor’s rights with respect to any Unimpaired Claim, including, without limitation, all rights in

respect of legal and equitable defenses to or setoffs or recoupments against any such Unimpaired

Claim.

ARTICLE V

MEANS OF PLAN IMPLEMENTATION

The Amended Plan contemplated the Debtor will be able to sell the Property

pursuant to the Sale Approval Order for at least $22 million. If the Debtor is unable close

on such a transaction, or otherwise renegotiate the terms of the LV Settlement Agreement

with its senior lender, either pursuant to the terms of the Sale Approval Order or

otherwise, the Debtor may instead elect to seek dismissal or conversion of its bankruptcy

case pursuant to Section 1112 of the Bankruptcy Code. 

A. Creation and Vesting.

On the Effective Date of the Plan, (i) the Liquidating Trust shall be created and shall be

governed by the terms of the Liquidating Trust Agreement, (ii) the Liquidating Trust Assets shall

vest in, and be transferred to, the Liquidating Trust, which Liquidating Trust shall constitute, be

appointed as and be deemed a representative of the Debtor’s Estate pursuant to and in

accordance with the terms of Section 1123(b)(3)(B) of the Bankruptcy Code solely for the

benefit of the Liquidating Trust Beneficiaries, and (iii) the Liquidating Trust, through the

Liquidating Trustee, is and shall, among the other powers set forth herein and in the Liquidating

Trust Agreement, be authorized and appointed to investigate, prosecute, enforce, pursue and

settle any and all Causes of Action, provided however, that any settlement of a Cause of Action

proposed by the Liquidating Trustee shall require the approval of the Bankruptcy Court upon the

filing of a motion in connection therewith. NOTWITHSTANDING ANYTHING IN THE

PLAN TO THE CONTRARY, THE VESTING IN AND TRANSFER OF THE LIQUIDATING

TRUST ASSETS TO THE LIQUIDATING TRUST SHALL BE FREE AND CLEAR OF ANY

AND ALL LIENS, CLAIMS, ENCUMBRANCES AND INTERESTS OF ANY KIND

WHATSOEVER. NOTWITHSTANDING ANYTHING IN THE PLAN TO THE CONTRARY,

NO ASSETS OF THE DEBTOR OR THE DEBTOR’S ESTATE SHALL VEST IN THE

DEBTOR OR ANY OTHER PERSON OR ENTITY FROM AND AFTER THE EFFECTIVE

DATE, OTHER THAN THE LIQUIDATING TRUST.

B. Execution and Implementation

On or before the Effective Date, each Liquidating Trust Agreement shall be executed by

the Debtor and the Liquidating Trustee and all other necessary steps shall be taken to establish

the Liquidating Trust, which shall be for the benefit of the Liquidating Trust Beneficiaries

thereunder. The Liquidating Trust is created solely to implement the terms of the Plan. The

primary purposes of the Liquidating Trust are to collect and liquidate the Assets of the Debtor’s

Estate, pursue those claims and Causes of Action transferred to, and vested in, the Liquidating

Trust and distribute to the Liquidating Trust Beneficiaries all proceeds from the liquidation of

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the applicable Assets pursuant to the terms of the Plan and in accordance with Treasury

Regulation Section 301.7701-4(d). Under no circumstances shall the Liquidating Trustee have

any power to engage in any trade or business or any other activity except as specifically provided

herein or otherwise reasonably necessary and advisable for the orderly liquidation and

distribution of the Liquidating Trust Assets of the Debtor’s Estate.

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C. Liquidating Trust Assets

The Liquidating Trust shall consist of the Liquidating Trust Assets from the Debtor’s

Estate after any required Distributions by the Debtor on the Effective Date. The Debtor shall

transfer the Liquidating Trust Assets to the Liquidating Trust. Such transfer shall be exempt

from any stamp, real estate transfer, mortgage reporting, sales, use or other similar tax pursuant

to section 1146(a) of the Bankruptcy Code and any other applicable law. In connection with the

transfer of the Liquidating Trust Assets to the Liquidating Trust, such Liquidating Trust Assets,

including, without limitation, Causes of Action, shall vest in the Liquidating Trust on the

Effective Date.

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D. Liquidating Trustee

The Liquidating Trust shall be governed by the Liquidating Trustee according to the

Liquidating Trust Agreement and the terms of the Plan. The Liquidating Trustee for the

Liquidating Trust shall mean ______________________, individually and all successor

Liquidating Trustees. The Liquidating Trustee shall be deemed to have been appointed as the

Estate’s representative for the Debtor by the Bankruptcy Court pursuant to section 1123(b)(3)(B)

of the Bankruptcy Code.

E. Powers of Liquidating Trustee

In furtherance of and consistent with the purpose of the Liquidating Trust and the Plan,

the Liquidating Trustee shall, among other things, have the rights, powers and duties of a chapter

7 trustee under Section 704 of the Bankruptcy Code and a chapter 11 trustee under section 1106

of the Bankruptcy Code and shall include, without limitation, the following: (i) to hold, manage,

dispose of, sell, convert to Cash, and distribute the. In connection with the administration of the

Liquidating Trust, except as otherwise set forth herein, the Trustee is authorized to perform only

those acts necessary and desirable to accomplish the purposes of the Liquidating Trust. The

Liquidating Trust shall succeed the rights of the Debtor necessary to protect, conserve and

liquidate all Liquidating Trust Assets, including investigating, prosecuting and resolving the

Causes of Action; (ii) to hold the Liquidating Trust Assets for the benefit of the Liquidating

Trust Beneficiaries that are entitled to distributions therefrom under the Plan, whether their

Claims are Allowed on or after the Effective Date; (iii) in the Liquidating Trustee's reasonable

business judgment, to investigate, prosecute, settle, liquidate, dispose of, and/or abandon the

Liquidating Trust Assets, including Causes of Action; (iv) to monitor and enforce the

implementation of the Plans; (v) to file all tax and regulatory forms, returns, reports and other

documents and financial information required with respect to the Liquidating Trust or the

Debtor; (vi) in the Liquidating Trustee's reasonable business judgment, to reconcile and object to

Claims against the Debtor or the Liquidating Trust, and manage, control, prosecute and/or settle

on behalf of the Estate and/or Liquidating Trust’s Objections to Claims on account of which the

Liquidating Trustee will be responsible (if Allowed) for making Distributions under the Plan;

(vii) to take all actions necessary, and create any documents necessary, to wind up the affairs of

the Debtor and to implement the Plan; (viii) to hold, manage, and distribute Cash or non-Cash

Liquidating Trust Assets obtained through the exercise of its power and authority; (ix) to act as a

signatory to the Debtor for all purposes, including those associated with the novation of contracts

or other obligations arising out of the sales of the Debtor’s Assets; (x) to dispose of the books

and records transferred to the Liquidating Trustee in a manner deemed appropriate by the

Liquidating Trustee in accordance with applicable law; provided, however, that the Liquidating

Trustee shall not dispose of any books and records that are reasonably likely to pertain to

pending litigation in which the Debtor or its current or former managers, partners, officers or

directors are a party without further order of the Bankruptcy Court; (xi) to take all necessary

action and file all appropriate motions to obtain an order closing the Chapter 11 Case; (xii) to

enter into and exercise rights under contracts that are necessary or desirable to the administration

of the Liquidating Trust and execute any documents or pleadings related to the liquidation of the

Liquidating Trust Assets or other matters related to the Liquidating Trust; (xiii) to establish and

maintain bank accounts and terminate such accounts as the Liquidating Trustee deems

appropriate; (xiv) to set off amounts owed to the Debtor against distributions to Liquidating

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Trust Beneficiaries; (xv) to bring suits or defend itself against such suits, if any, as the

Liquidating Trustee determines in connection with any matter arising from or related to the Plan

or the Liquidating Trust Agreement that affects in any way the rights or obligations of the

Liquidating Trust, the Liquidating Trustee or the Liquidating Trust Beneficiaries; (xvi) to obtain

and maintain insurance coverage with respect to the liabilities and obligations of the Liquidating

Trustee; (xvii) to take all actions necessary and appropriate to minimize any adverse state or

federal tax consequences to the Liquidating Trust Beneficiaries provided such actions do not

result in an adverse tax consequence to the Liquidating Trust and are consistent with and are not

contrary to the treatment of the Liquidating Trust as a “grantor trust” for United States federal

income tax purposes; and (xviii) to take such other and further actions as are permitted by the

Plan and are not inconsistent with the Plan and the Liquidating Trust Agreement. as quickly as

reasonably practicable. Subject to the limitations set forth in this Trust Agreement, the Plan and

the Confirmation Order, the Liquidating Trustee may exercise all powers granted it hereunder

related to, or in connection with, the collection, prosecution, liquidation, and distribution to the

Beneficiaries, of the Trust Assets. Without limiting, but subject to, the foregoing, the Liquidating

Trustee shall be expressly authorized:

(a) To open and maintain bank accounts on behalf of or in the name of the Liquidating 

Trust, calculate and make Distributions and take other actions consistent with the Plan and the

implementation thereof, including the establishment, re-evaluation, adjustment and maintenance

of appropriate reserves, in the name of the Liquidating Trust.

(b) To receive, conserve and manage the Trust Asset

(c) To hold legal title to any and all Trust Assets.

(d) Subject to the applicable provisions of the Plan, to prosecute, collect and liquidate 

the Trust Assets.

(e) To take discovery from third parties, including but not limited to, issuing 

Fed.R.Bankr.P. 2004 subpoenas and discovery requests.

(f) Make decisions regarding the retention or engagement of Trustee's Professionals 

and to pay, from the Trust Assets and the proceeds thereof, the fees and charges incurred by the

Liquidating Trust and the fees and expenses of the Liquidating Trustee's Professionals, as well as

the disbursements, expenses or related support services relating to the implementation of the

Plan and performance by the Trustee of its duties under this Agreement. To pay all lawful,

expenses, debts, charges and liabilities of the Liquidating Trust.

(g) To wind down the affairs of the Trust including the filing of final tax returns, if 

applicable, establish any administrative reserves necessary to close the Trust and make all

Distributions to the Beneficiaries provided for or contemplated by the Plan.

(h) To withhold from the amount distributable to any Person such amount as may be 

sufficient to pay any tax or other charge which the Trustee has determined, in its sole discretion,

may be required to be withheld therefrom under the income tax laws of the United States or of

any state or political subdivision thereof. In the exercise of its discretion and judgment, the

Trustee may enter into agreements with taxing or other governmental authorities for the payment

of such amounts as may be withheld in accordance with the provisions of this section.

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(i) To enter into any agreement or execute any document required by or consistent 

with the Plan and perform all obligations thereunder.

(j) To abandon in any commercially reasonable manner, including abandonment or 

donation to a charitable organization of its choice, any assets if it concludes that they are of no

significant value or benefit to the Liquidating Trust.

(k) Except as otherwise set forth in this Trust Agreement, to have exclusive power to 

prosecute and/or settle all causes of actions including, without limitation, Avoidance Actions or

any other causes of action or counterclaims as described in the Plan and Disclosure Statement

(the “Causes of Action") and exercise, participate in or initiate any proceeding before the

Bankruptcy Court or any other court of competent and appropriate jurisdiction and voluntarily

participate as a party or otherwise in any administrative proceeding, arbitration, mediation, or

other nonjudicial proceeding and litigate or settle such Actions on behalf of the Liquidating

Trust, and pursue such actions to settlement or final order, all in accordance with the terms of

this Agreement.

(l) To hold any unclaimed Distributions or payment to a Beneficiary in accordance 

with this Agreement, the Confirmation Order and the Plan.

(m) To purchase or create and carry all insurance policies and pay all insurance 

premiums and costs it deems necessary or advisable.

(n) To implement and/or enforce all provisions of the Plan.

(o) To collect and liquidate all Trust Assets pursuant to the Plan, the Confirmation 

Order and this Agreement and to ultimately close the Chapter 11 Case.

(p) To object to Claims and supervise and administer the resolution, settlement and 

payment of such Claims and the distribution to the Beneficiaries in accordance with this

Agreement and the Plan. Specifically, the Liquidating Trustee may compromise or settle any

such Claim (disputed or otherwise) free of any restrictions other than those restrictions expressly

imposed by the Plan, the Confirmation Order or this Agreement.

(q) Exercise such rights of setoff as the Debtor or the Estate may have had against any 

Beneficiary and/or seek Court approval of such exercise.

(r) Voluntarily engage in arbitration or mediation with regard to any dispute.

(s) To (i) seek a determination of tax liability under section 505 of the Bankruptcy 

Code, (ii) file, if necessary, any and all tax information returns required with respect to the

Liquidating Trust treating the Liquidating Trust as a grantor trust pursuant to Treas. Reg.

1.67-4(a) or otherwise, (iii) make tax elections by and on behalf of the Liquidating Trust and (iv)

pay taxes, if any, payable by the Liquidating Trust.

(t) To make all distributions to holders of Allowed Claims provided for or 

contemplated by the Plan. Resolve issues pe1taining to the retention or disposal of the

Liquidating Trust's administrative and business records.

(u) To perform any other actions or duties required to be performed by the Liquidating 

Trustee pursuant to the provisions of the Plan and/or Confirmation Order.

In all circumstances, the Liquidating Trustee shall act in the best interests of all

beneficiaries of the Liquidating Trust in furtherance of the purposes of the Liquidating Trust.

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For the avoidance of doubt, and without limitation of the foregoing, the Liquidating Trustee shall

explicitly have the authority to: (i) investigate, prosecute, settle, liquidate, dispose of, and/or

abandon any and all Claims and Causes of Action, subject to Bankruptcy Court approval, after

notice and hearing; and (ii) file all tax and regulatory forms, returns, reports and other documents

and financial information required with respect to the Debtor or the Liquidating Trust, and

request a prompt determination of such requests; and (iii) investigate, prosecute, settle, liquidate,

dispose of, and/or abandon any and all other Claims and Causes of Action reserved in the Plan,

subject to Bankruptcy Court approval, after notice and hearing.

F. Corporate Action

All actions contemplated to be performed by the Debtor pursuant to the Plan, or any

corporate or partnership action to be taken by or required of the Debtor, shall, as of the Effective

Date, be deemed to have occurred and be effective as provided herein, and shall be authorized

and approved in all respects without any requirement for further action by the shareholders,

partners, members or managers of the Debtor. All Persons, governmental units, title agencies,

licensing agencies and offices of recordation may rely upon the authority vested in the Debtor in

order to effectuate the Plan and the transactions contemplated herein.

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G. Costs and Expenses

The costs and expenses of the Liquidating Trust, and the reasonable fees and expenses of

the Liquidating Trustee and the Liquidating Trustee’s Professionals, United States Trustee fees,

shall be paid out of the Liquidating Trust Assets. Those Professionals shall continue to file fee

applications with the Bankruptcy Court for services provided to the Liquidating Trust and

Liquidating Trustee, and all requests of Professionals retained by the Liquidating Trust for

payment of fees or expenses shall be made by means of an interim or final fee application and

shall be subject to the approval of, and review by, the Bankruptcy Court to ensure that such

payment conforms to the terms of any engagement agreement, the Bankruptcy Code, the

Bankruptcy Rules, the Local Bankruptcy Rules.

H. Compensation of Liquidating Trustee

The Liquidating Trustee shall be entitled to reasonable compensation at his standard

hourly rates.

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I. Retention of Professionals

The Liquidating Trustee may retain and compensate attorneys, accountants and other

professionals (collectively, the “Professionals”) to assist in his duties as Liquidating Trustee

under the Plan and Liquidating Trust on such terms (including on a contingency or hourly basis)

as the Liquidating Trustee deems appropriate withoutbut subject to Bankruptcy Court approval.

Without limiting the foregoing, the Liquidating Trustee may retain any Professional that

represented the Debtor or other parties in interest in this Chapter 11 Case.

J. Tax Consequences of Liquidating Trust

For all U.S. federal income tax purposes, all parties (including, without limitation, the

Debtors, the Liquidating Trustee and the Liquidating Trust Beneficiaries) shall treat the transfer

of the Liquidating Trust Assets to the Liquidating Trust as: (A) a transfer of the Liquidating

Trust Assets (subject to any obligations relating to those assets) directly to those Holders of

Allowed Claims and Equity Interests receiving Liquidating Trust Beneficial Interests, followed

by (B) the transfer by such Liquidating Trust Beneficiaries to the Liquidating Trust of the

Liquidating Trust Assets in exchange for the applicable Liquidating Trust Beneficial Interests.

Accordingly, those Holders of Allowed Claims and Equity Interests receiving Liquidating Trust

Beneficial Interests shall be treated for United States federal income tax purposes as the grantors

and deemed owners of their respective share of the Liquidating Trust Assets. The foregoing

treatment shall also apply, to the extent permitted by applicable law, for state and local income

tax purposes. Notwithstanding the foregoing, (i) in the event that any portion of a Liquidating

Trust is treated as a “qualified settlement fund” pursuant to Section 1.468B-1 of the Treasury

Regulations, the United States federal income tax consequences shall be determined in

accordance with the rules set forth in Section 468B of the Internal Revenue Code and the

Treasury Regulations thereunder; and/or (ii) in the event that the Liquidating Trustee timely

elects to treat any Liquidating Trust Assets allocable to the Disputed Claims Fund as a “disputed

ownership fund” pursuant to Section 1.468B-9(c)(2)(ii) of the Treasury Regulations, any Holders

of such Disputed Claims shall, to the extent of such Disputed Claims, not be treated as having

received any portion of the Liquidating Trust Assets transferred to the Liquidating Trust

hereunder and shall not be deemed as grantors of the Liquidating Trust to the extent of such

Disputed Claims

K. Duration

The Liquidating Trust shall remain in existence and continue in full force and effect until

all of the following shall have occurred: (a) the Liquidating Trust Assets have been reduced to

Cash or the Liquidating Trustee has determined that it is impractical or not in the best interest of

the Liquidating Trust Beneficiaries to do so; (b) all costs, expenses and obligations incurred in

administering the Liquidating Trust have been paid and discharged; (c) the Liquidating Trust

Assets have been distributed to the Liquidating Trust Beneficiaries in accordance with the Plan;

and (d) a final report has been filed and a Final Decree closing the Chapter 11 Case has been

entered; provided, however, that the Liquidating Trust shall not remain in existence more than

five years from the date of the respective Liquidating Trust Agreement, unless extended pursuant

to the terms hereof. If warranted by the facts and circumstances provided for in the Plan, and

subject to the approval of the Bankruptcy Court of a motion of the Liquidating Trustee seeking

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an extension of the term of the Liquidating Trust as necessary to the purpose of the Liquidating

Trust, then the term of the Liquidating Trust may be extended for a finite term based on the

particular circumstances. Each extension must be approved by the Bankruptcy Court within six

months of the beginning of the extended term with notice thereof to all Liquidating Trust

Beneficiaries. Notwithstanding the foregoing, the Liquidating Trust shall in no event remain in

existence for more than twenty-one years from the Effective Date.

L. Indemnification

The Liquidating Trustee and the Liquidating Trustee’s attorneys, employees, officers,

directors, agents, representatives, and Professionals, as the case may be, shall be held harmless

and shall not be liable for actions taken or omitted in their capacity as, or on behalf of, the

Liquidating Trustee, except those acts that are determined by Final Order to have arisen out of

their own intentional fraud, willful misconduct or gross negligence, and each shall be entitled to

be indemnified, held harmless, and reimbursed for fees and expenses including, without

limitation, reasonable attorney’s fees, which such Persons and Entities may incur or may become

subject to or in connection with any action, suit, proceeding or investigation that is brought or

threatened against such Persons or Entities in respect of that person’s or entity’s or the

Liquidating Trustee’s actions or inactions regarding the implementation or administration of the

Plan, the Liquidating Trust or the Liquidating Trust Agreement or the discharge of their duties

hereunder or thereunder, except for any actions or inactions that are determined by Final Order

to have arisen from intentional fraud, willful misconduct or gross negligence. Any claim of the

Liquidating Trustee and the other parties entitled to indemnification under this section, to be

indemnified, held harmless, or reimbursed shall be satisfied solely from the Liquidating Trust

Assets, including but not limited to the Available Cash, or any applicable insurance coverage.

The Liquidating Trustee shall be entitled to rely, in good faith, on the advice of their retained

professionals regardless of whether such advice is provided in writing or verbally.

Notwithstanding the foregoing, the Liquidating Trustee shall not be under any obligation to

consult with his retained professionals, and his determination not to do so shall not result in the

imposition of liability on the Liquidating Trustee unless such determination is based on willful

misconduct, gross negligence, or intentional fraud. 

M. Bond

As a condition to serving as Liquidating Trustee, the Liquidating Trustee, and any

successor trustee, shall post a bond in favor of the Liquidating Trust in an amount that is not less

than the amount of Cash held by the Liquidating Trust on the Effective Date, which bond shall

be in substantially the same form as is required by the United States Trustee for trustees in the

Southern District of Florida. For the avoidance of doubt, the Liquidating Trust shall be

responsible for all costs associated with the posting of the foregoing bond, including the

premium associated with such bond. In addition, the Liquidating Trustee is hereby authorized,

out of funds available from the Liquidating Trust, to obtain all reasonably necessary insurance

coverage for himself and the Liquidating Trust, its agents, representatives, employees or

independent contractors whether as a named insured on the policies or otherwise, including, but

not limited to, coverage with respect to (a) appropriate directors and officers/trustee liability

insurance,(b) any property that is or may in the future become the property of the Liquidating

Trusts, and (c) the liabilities, duties, and obligations of the Liquidating Trustee and the

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Liquidating Trust. Such bond shall be subject to discharge and release upon an appropriate

motion and order from the Bankruptcy Court upon the Liquidating Trustee’s resignation, death

or removal, or for other cause.

N. Resignation, Death or Removal

The Liquidating Trustee may resign at any time; provided, however, that he shall file a

motion with the Bankruptcy Court in connection therewith and request that a successor or

replacement be appointed in accordance herewith, which motion shall be on notice to the top

twenty (20) Creditors holding Allowed Claims and the Office of the United States Trustee. The

Office of the United States Trustee or any party in interest, by motion filed with the Bankruptcy

Court, or the Bankruptcy Court on its own order to show cause, may seek to remove the

Liquidating Trustee for cause, including under Section 324 of the Bankruptcy Code, or, if

Section 324 is deemed inapplicable, then for the same reasons that would otherwise suffice under

Section 324, for the violation of any material provision of the Plan, or in the event the

Liquidating Trustee becomes incapable of acting hereunder as a result of physical or mental

disability and such physical or mental disability continues for a period in excess of thirty (30)

days (except in the case of death, in which instance the procedures for replacement will begin

immediately). In the event of a resignation or removal, the Liquidating Trustee, unless he is

incapable of doing so, shall continue to perform his duties hereunder until such a time as a

successor is approved by a Final Order of the Bankruptcy Court. In the event the Liquidating

Trustee resigns or is removed, the Liquidating Trust Beneficiaries, shall have 90 days to select a

successor Liquidating Trustee by filing a motion with the Bankruptcy Court. If the Liquidating

Trust Beneficiaries do not select a successor Liquidating Trustee, then the Office of the United

States Trustee may file a motion with the Bankruptcy Court seeking an order directing the

United States Trustee to select such successor.

O. Preservation of Causes of Action.

Pursuant to the terms of the Plan, all Causes of Action are being transferred to the

Liquidating Trust. On and as of the Effective Date, all Causes of Action shall be preserved

and vested in the Liquidating Trust. After the Effective Date, the Liquidating Trust,

through the Liquidating Trustee, will have the right to pursue, not pursue, enforce, file,

settle, compromise, release, withdraw, arbitrate or litigate any Cause of Action that vests in

the Liquidating Trust, provided, however, that any settlement of a Cause of Action shall

require the approval of the Bankruptcy Court upon the filing of a motion and a hearing.

THE AMENDED PLAN DOES NOT, AND IS NOT INTENDED TO,

RELEASE ANY CAUSE OF ACTION OR OBJECTIONS TO CLAIMS, AND ALL SUCH

RIGHTS ARE SPECIFICALLY RESERVED IN FAVOR OF THE LIQUIDATING

TRUST. Creditors, Holders of Equity Interest and all parties in interest are advised that legal

rights, claims and rights of action the Debtor may have against them, if they exist, are retained

under the Plan and transferred to the Liquidating Trust for prosecution unless a specific order of

the Bankruptcy Court authorizes the Debtor to release such claims. As such, Creditors, Holders

of Equity Interest and all parties in interest are cautioned not to rely on (i) the absence of the

listing of any legal right, claim or right of action against a particular person/entity in the

Disclosure Statement, the Plan, or the Schedules, or (ii) the absence of litigation or demand prior

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to the Effective Date of the Plan as any indication that the Debtor or Liquidating Trust do not

possess or do not intend to transfer to or vest any Cause of Action in the Liquidating Trust if a

particular Creditor, Holder of Equity Interest and/or party in interest votes to accept the Plan. It

is the expressed intention of the Plan to preserve rights, objections to Claims, Causes of Action,

and rights of action of the Debtor, whether now known or unknown, for the benefit of

Liquidating Trust. A Cause of Action shall not, under any circumstances, be waived as a result

of the failure of the Debtor to describe such Cause of Action with specificity in the Plan or in the

Disclosure Statement; nor shall the Liquidating Trust, as a result of such failure, be estopped or

precluded under any theory from pursuing any such Cause of Action. Nothing in the Plan

operates as a release of any Cause of Action.

The Debtor does not presently know the full extent of the Causes of Action and,

for purposes of voting on the Plan, all Creditors, Holders of Equity Interest and all parties in

interest are advised that the Liquidating Trust will have the same rights that a Chapter 7 trustee

would have with respect to the Causes of Action. However, the Disclosure Statement contains a

description of the potential Causes of Action being preserved hereunder. Notwithstanding,

neither a vote to accept the Plan by any Creditor, Holder of Equity Interest and/or party in

interest nor the entry of the Confirmation Order will act as a release, waiver, bar or estoppel of

any Cause of Action against such Creditor, Holder of Equity Interest, party in interest or any

other Person or Entity. Confirmation of the Plan and entry of the Confirmation Order is not

intended to and shall not be deemed to have any res judicata or collateral estoppel or other

preclusive effect that would precede, preclude, or inhibit prosecution of such Cause of Action

following Confirmation of the Plan.

The Estate shall remain open, even if the Bankruptcy Case shall has been closed,

as to any and all Causes of Action until such time as the Causes of Action have been fully

administered and the recoveries therefrom have been received.

P. Prosecution and Settlement of Causes of Action

The Liquidating Trust, through the Liquidating Trustee (a) may commence or continue in

any appropriate court, tribunal or any other appropriate setting (e.g., American Arbitration

Association or other arbitration association) any suit or other proceeding for the enforcement of

any Cause of Action which the Debtor had or had power to assert immediately prior to the

Effective Date, and (b) may settle or adjust such Cause of Action, provided, however, that any

such settlement shall require the approval of the Bankruptcy Court after notice and a hearing.

ARTICLE VI

PROVISIONS GOVERNING DISTRIBUTIONS

A. Manner of Cash Payments Under the Amended Plan

Any Distribution pursuant to the Plan, to the extent posted in the United States

mail, shall be deemed made when deposited by the Debtor or the Liquidating Trust (or their

respective agent(s)), as applicable, into the United States mail, or paid by wire transfer. At the

option of the Debtor or the Liquidating Trust, as applicable, any Cash payment to be made

pursuant to the Plan shall be made, at the election of the Debtor or the Liquidating Trust, as

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applicable, by check drawn on a domestic bank, by wire transfer, or by ACH, from a domestic

bank, or other method mutually agreed upon by the holder of the Allowed Claim and the Debtor

or the Liquidating Trust. Whenever any Distribution to be made under the Plan shall be due on a

day other than a Business Day, such Distribution shall instead be made, without interest, on the

immediately succeeding Business Day, but shall be deemed to have been made on that due date.

B. Entity Making Distributions

Except as otherwise provided in the Plan, Distributions to holders of Allowed

Claims shall be made by the Debtor, if before the Effective Date, or the Liquidating Trust if on

or after the Effective Date. The Debtor and the Liquidating Trust shall not be required to give

any bond or surety or other security for the performance of their duties, unless otherwise ordered

by the Bankruptcy Court.

C. Distribution Dates

Distributions to holders of Claims and Equity Interests shall be made as provided

in Articles II and III of this Plan. If any payment or act under the 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.

D. Record Date for Distributions

Except as otherwise provided in a Final Order of the Bankruptcy Court, the

transferees of Claims or Equity Interests that are transferred pursuant to Bankruptcy Rule 3001

on or prior to the Record Date will be treated as the holders of those Claims or Equity Interests

(as applicable) for all purposes, notwithstanding that any period provided by Bankruptcy Rule

3001 for objecting to the transfer may not have expired by the Record Date. The Debtor or

Liquidating Trust, as applicable, shall have no obligation to recognize any transfer of any Claim

or Equity Interest occurring after the Record Date. In making any Distribution with respect to

any Claim or Equity Interest, the Debtor or Liquidating Trust, as applicable, shall be entitled

instead to recognize and deal with, for all purposes hereunder, only the Entity that is listed on the

proof of Claim or Equity Interest filed with respect thereto or on the Schedules as the holder

thereof as of the close of business on the Record Date and upon such other evidence or record of

transfer or assignment that was known to the Debtor as of the Record Date.

E. Delivery of Distributions

Subject to Bankruptcy Rule 9010 and except as otherwise provided herein,

Distributions to the holders of Allowed Claims and Allowed Equity Interests shall be made by

the Debtor or Liquidating Trust, as applicable, at (a) the address of each holder as set forth in the

Schedules, unless superseded by the address set forth on proofs of Claim or Equity Interest filed

by such holder or (b) the last known address of such holder if no proof of Claim or Equity

Interest is filed or if the Debtor or Liquidating Trust, as applicable, have not been notified in

writing of a change of address.

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F. Undeliverable and Unclaimed Distributions

In the event that any Distribution to any holder of an Allowed Claim or Allowed

Equity Interest made by the Debtor or Liquidating Trust, as applicable is returned as

undeliverable, the Debtor or Liquidating Trust, as applicable, shall use commercially reasonable

efforts to determine the current address of each holder, but no Distribution to such holder shall

be made unless and until the Debtor or Liquidating Trust, as applicable, has determined the then

current address of such holder; provided, however, that all Distributions to holders of Allowed

Claims or Allowed Equity Interests made by the Debtor or Liquidating Trust, as applicable, that

are unclaimed for a period of ninety (90) days after the date of the first attempted Distribution

shall have its, his or her Claim or Equity Interest for such undeliverable Distribution deemed

satisfied and will be forever barred from asserting any such Claim or Equity Interest against the

Debtor or Liquidating Trust, as applicable, or their property. Any Distributions which are

undeliverable or have not been negotiated within the time set forth above shall be deemed

unclaimed property under section 347(b) of the Bankruptcy Code and revested in the Debtor or

Liquidating Trust, as applicable. The Debtor or Liquidating Trust, as applicable, shall have no

further obligation to make any Distribution to the holder of such Claim or Equity Interest on

account of such Claim or Equity Interest, and any entitlement of any holder of such Claim or

Equity Interest to any such Distributions shall be extinguished and forever barred; provided,

however, that the holder of such Claim or Equity Interest may receive future Distributions on

account of such Claim or Equity Interest by contacting the Debtor or Liquidating Trust, as

applicable, at some point prior to the final Distribution.

G. Compliance with Tax Requirements

The Debtor or Liquidating Trust, as applicable, may withhold and pay to the

appropriate taxing authority all amounts required to be withheld pursuant to the Tax Code or any

provision of any foreign, state or local tax law with respect to any payment or Distribution on

account of Claims or Equity Interests; provided, however, that the Debtor or Liquidating Trust,

as applicable, shall not make any such withholdings described in this paragraph (other than

routine tax withholdings with respect to employee-related claims (if any)) from any payment or

Distribution on account of Claims or Equity Interests without first filing a notice with the Court

(and serving such notice on the holder of the Claim or Equity Interest) describing the nature and

amount of the proposed withholding and providing the Creditor or holder of Equity Interest an

opportunity to object. All such amounts withheld and paid to the appropriate taxing authority

shall be treated as amounts distributed to such holders of the Claims or Equity Interests. The

Debtor or Liquidating Trust, as applicable, shall be authorized to collect such tax information

from the holders of Claims or Equity Interests (including social security numbers or other tax

identification numbers) as it in its sole discretion deems necessary to effectuate the Plan. In

order to receive Distributions under the Plan, all holders of Claims or Equity Interests will need

to identify themselves to the Debtor or Liquidating Trust, as applicable, and provide all tax

information the Debtor or Liquidating Trust, as applicable, deem appropriate (including

completing the appropriate Form W-8 or Form W-9, as applicable to each holder). The Debtor

or Liquidating Trust, as applicable, may refuse to make a Distribution to any holder of a Claim

or Equity Interest that fails to furnish such information within the time period specified by the

Debtor or Liquidating Trust, as applicable, and such Distribution shall be deemed an unclaimed

Distribution under the Plan, and, provided further that, if the Debtor or Liquidating Trust, as

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applicable, fails to withhold in respect of amounts received or distributable with respect to any

such holder and such Debtor are later held liable for the amount of such withholding, such holder

shall reimburse the Debtor or Liquidating Trust, as applicable, for such liability.

Notwithstanding any other provision of the Plan, each holder of an Allowed Claim or Equity

Interest that is to receive a Distribution under the Plan shall have the sole and exclusive

responsibility for the satisfaction and payment of any tax obligations imposed by any

governmental unit.

H. No Payments of Fractional Dollars

Notwithstanding any other provision of the Plan to the contrary, no payment of

fractional dollars shall be made pursuant to the Plan. Whenever any payment of a fraction of a

dollar under the Plan would otherwise be required, the actual Distribution made shall reflect a

rounding down of such fraction to the nearest whole dollar.

I. Interest on Claims

Except as specifically provided for in this Plan or the Confirmation Order or

required by the Bankruptcy Code, interest shall not accrue on Claims or Equity Interests and no

holder of a Claim or Equity Interest shall be entitled to interest on any Claim accruing on or after

the Petition Date. Interest shall not accrue on any General Unsecured Claim that is a Disputed

Claim in respect of the period from the Effective Date to the date a final Distribution is made

thereon if and after that Disputed Claim becomes an Allowed Claim. Except as expressly

provided herein or in a Final Order of the Bankruptcy Court, no prepetition Claim shall be

Allowed to the extent that it is for post-petition interest or similar charges.

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J. No Distribution in Excess of Allowed Amount of Claim

Notwithstanding anything to the contrary contained in the Plan, no holder of an

Allowed Claim shall receive in respect of that Claim any Distribution in excess of the Allowed

amount of such Claim.

K. Setoff and Recoupment

The Debtor or Liquidating Trust, as applicable, may setoff against, or recoup

from, any Claim or Equity Interest and the Distributions to be made pursuant to the Plan in

respect thereof, any Claims or defenses of any nature whatsoever that the Debtor or Liquidating

Trust, as applicable, or the Estate may have against the holder of such Claim or Equity Interest,

but neither the failure to do so nor the allowance of any Claim or Equity Interest under the Plan

shall constitute a waiver or release by the Debtor or Liquidating Trust, as applicable, or the

Estate of any right of setoff or recoupment that any of them may have against the holder of any

Claim or Equity Interest. Any such setoffs or recoupments may be challenged in Bankruptcy

Court. Notwithstanding any provision in the Plan to the contrary, nothing herein shall bar any

creditor from asserting its setoff or recoupment rights to the extent permitted under section 553

or any other provision of the Bankruptcy Code; provided, however, that such setoff or

recoupment rights are timely asserted; provided further that all rights of the Debtor or

Liquidating Trust, as applicable, and the Estate with respect thereto are reserved.

L. De Minimis Distributions; Charitable Donation

Notwithstanding anything to the contrary in the Plan, the Debtor or Liquidating

Trust, as applicable, shall not be required to make a Distribution to any Creditor of holder of an

Equity Interest if the dollar amount of the Distribution is less than $10 or otherwise so small that

the cost of making that Distribution exceeds the dollar amount of such Distribution. On or about

the time that the final Distribution is made, the Debtor or Liquidating Trust, as applicable, may

make a donation of undistributable funds as defined by Local Rule 3011-1(C)(1), in the

reasonable discretion of the Debtor or Liquidating Trust, as applicable, to the following

organizations (each of which qualifies for not-for-profit status under section 501(c)(3) of the Tax

Code) with undistributable funds if, in the reasonable judgment of the Debtor or Liquidating

Trust, as applicable, the cost of calculating and making the final Distribution of the

undistributable funds remaining is excessive in relation to the benefits to the or holders of

Claims or Equity Interests who would otherwise be entitled to such Distributions: (i) the

Bankruptcy Bar Foundation of the Bankruptcy Bar Association of the Southern District of

Florida; (ii) Legal Services of Greater Miami, Inc.; (iii) Dade Legal Aid- Put Something Back

Program; or (iv) Miami Foundation for Mental Health, Inc.

M. Withholding from Distributions

Any federal, state or local withholding taxes or other amounts required to be

withheld under applicable law shall be deducted from Distributions pursuant to the Plan. The

Debtor or Liquidating Trust, as applicable, may withhold from amounts distributable pursuant to

the Plan to any Person or Entity any and all amounts, determined in the reasonable discretion of

the Debtor or Liquidating Trust, as applicable, required to be withheld by any law, regulation,

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rule, ruling, directive, or other governmental requirement. The Debtor or Liquidating Trust, as

applicable, shall not make any such withholdings described in this paragraph (other than routine

tax withholdings with respect to employee-related claims (if any)) from any payment or

Distribution on account of Claims or Equity Interests without first filing a notice with the Court

(and serving such notice on the holder of the Claim or Equity Interest) describing the nature and

amount of the proposed withholding and providing the Creditor or holder an opportunity to

object.

N. Distributions in Satisfaction; Allocation

Except for the obligations expressly imposed by the Plan and the property and

rights expressly retained under the Plan, if any, the Distributions and rights that are provided in

the Plan shall be in complete satisfaction and release of all Claims against, liabilities in, Liens

on, obligations of and Equity Interests in the Debtor and their Estate, whether known or

unknown, that arose or existed prior to the Effective Date. Distributions received in respect of

Allowed Claims will be allocated first to the principal amount of such Claims, with any excess

allocated to unpaid accrued interest (if any).

O. No Distributions on Late-Filed Claims

Except as otherwise provided in a Final Order of the Bankruptcy Court, any

Claim as to which a proof of Claim was required to be filed and was first filed after the

applicable bar date in the Chapter 11 Case, including, without limitation, the General Bar Date

and any bar date established in the Plan or in the Confirmation Order, shall automatically be

deemed a late-filed Claim that is disallowed in the Chapter 11 Case, without the need for (a) any

further action by the Debtor or Liquidating Trust, as applicable, (b) an order of the Bankruptcy

Court. Nothing in this paragraph is intended to expand or modify the applicable bar dates or any

orders of the Bankruptcy Court relating thereto.

ARTICLE VII

DISPUTED CLAIMS

A. Resolution of Disputed Claims

The Debtor or the Liquidating Trust, as applicable, shall have the right to make

and file objections to Claims or Equity Interests in the Bankruptcy Court. Unless otherwise

ordered by the Bankruptcy Court after notice and a hearing, all Disputed Claims or Equity

Interests shall be subject to the exclusive jurisdiction of the Bankruptcy Court.

B. Objection Deadline

All objections to Disputed Claims or Equity Interests shall be filed no later than

the Claims Objection Bar Date, unless otherwise ordered by the Bankruptcy Court after notice

and a hearing, with notice only to those parties entitled to notice in the Chapter 11 Case pursuant

to Bankruptcy Rule 2002.

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C. Estimation of Claims

At any time, the Debtor or Liquidating Trust, as applicable, may request that the

Bankruptcy Court estimate any contingent or unliquidated Claim or Equity Interests to the extent

permitted by section 502(c) of the Bankruptcy Code regardless of whether the Debtor or

Liquidating Trust, as applicable, have previously objected to such Claim or Equity Interest or

whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court shall

have jurisdiction to estimate any Claim or Equity Interest at any time during litigation

concerning any objection to such Claim or Equity Interest, including during the pendency of any

appeal relating to any such objection. If the Bankruptcy Court estimates any contingent or

unliquidated Claim or Equity Interest, that estimated amount shall constitute either the Allowed

amount of such Claim or Equity Interest or a maximum limitation on the Claim or Equity

Interest, as determined by the Bankruptcy Court. If the estimated amount constitutes a

maximum limitation on the Claim or Equity Interest, the Debtor or Liquidating Trust, as

applicable, may elect to pursue supplemental proceedings to object to the ultimate allowance of

the Claim or Equity Interest. All of the aforementioned objection, estimation and resolution

procedures are cumulative and not exclusive of one another. Claims or Equity Interests may be

estimated and subsequently compromised, settled, withdrawn or resolved by any mechanism

approved by the Bankruptcy Court.

D. No Distributions Pending Allowance

Notwithstanding any other provision in the Plan, if any portion of a Claim or

Equity Interest is disputed, no payment or Distribution provided under the Plan shall be made on

account of such Claim or Equity Interest unless and until such Disputed Claim or Equity Interest

becomes an Allowed Claim or Allowed or Equity Interest.

To the extent that a Disputed Claim or Equity Interests ultimately becomes an

Allowed Claim or Equity Interest, Distributions (if any) shall be made to the holder of such

Allowed Claim or Equity Interest in accordance with the provisions of the Plan. Upon

allowance, a holder of the Allowed Disputed Claim or Equity Interest shall receive any

Distributions that would have been made up to the date of allowance to such holder under the

Plan had the Disputed Claim or Equity Interest been allowed on the Effective Date.

ARTICLE VIII

TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES

A. General Treatment: Rejected if not Previously Assumed.

Within fourteen (14) days prior to the Confirmation Hearing, the Debtor

shall file and serve a Notice of all contracts that it intends to rejectassume and assign to the

Liquidating Trust (the “RejectionAssumption Schedule”). Pursuant to sections 365(a) and

1123(b)(2) of the Bankruptcy Code, upon the Effective Date, all executory contracts and

unexpired leases that exist between the Debtor and any Person or Entity shall be deemed

assumedrejected, unless included on the RejectionAssumption Schedule or previously

rejected. Within 14 days prior to the Confirmation Hearing, the Debtor shall file a

proposed Schedule of Cure Amounts for any leases or contracts that will be assumed under

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the Plan (the “Cure Schedule”). Any party objecting the proposed cure amount as set

forth in the Cure Schedule shall file an objection within three (3) days prior to the

Confirmation hearing. If no objection is filed, then the proposed cure amount will be

deemed approved. The Debtor shall have forty-fiveassumed. The Liquidating Trustee

shall have sixty (4560) days from the Effective Date to supplement the Rejection Schedule

and CureAssumption Schedule and the Bankruptcy Court will determine any disputes

regarding any cure or rejection damages. Subject to the occurrence of the Effective Date,

entry of the Confirmation Order shall constitute approval of such assumption or rejection

pursuant to section 365(a) of the Bankruptcy Code and a finding by the Bankruptcy Court

that each such assumption or rejection is in the best interests of the Debtor, the Liquidating

Trust, their Estate, and all parties in interest in the Chapter 11 Case.

B. Bar to Claims Arising from Rejection, Termination or Expiration

Claims created by the rejection of executory contracts or unexpired leases

(including, without limitation, the rejection provided in Article VIII.A herein (“General

Treatment; Rejected if not Previously Assumed”) or the expiration or termination of any

executory contract or unexpired lease prior to the Confirmation Date must be filed with

the Bankruptcy Court and served on the Debtor or Liquidating Trust, as applicable, no

later than thirty (30) days after (a) the date of the entry of any order of the Bankruptcy Court

authorizing rejection, with respect to any executory contract or unexpired lease rejected by

the Debtor or otherwise pertaining to such order, or (b) the Confirmation Date, with respect

to any executory contract or unexpired lease that is deemed rejected pursuant to VIII.A

hereof (“General Treatment; Rejected if not Previously Assumed”). Any rejection claim

for which a proof of claim is not filed and served within the time provided herein will be

forever barred from assertion and shall not be enforceable against the Debtor, or the

Estate, assets, properties, or interests in property, or the Liquidating Trust, or the Estate,

assets, properties, or interests in property. Nothing contained herein shall be deemed an

admission by the Debtor that such rejection gives rise to or results in a Claim or shall be

deemed a waiver by the Debtor or the Liquidating Trust of any objections to such Claim if

asserted.

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C. Assumption of Executory Contracts and Unexpired Leases

(1) Assumption of Executory Contracts and Unexpired Leases; Schedule of Assumed

Executory Contracts and Unexpired Leases. On the Effective Date, the Debtor will assumereject

all of the executory contracts and unexpired leases not listed on the RejectionAssumption

Schedule.

(2) Modifications, Amendments, Supplements, Restatements, or Other Agreements.

Unless otherwise provided in the Plan, each executory contract or unexpired lease that is

assumed pursuant to the Plan will include all modifications, amendments, supplements,

restatements, or other agreements that in any manner affect such executory contract or unexpired

lease, and all rights related thereto, if any, including all easements, licenses, permits, rights,

privileges, immunities, options, and any other interests, unless any of the foregoing agreements

has been previously rejected or repudiated, or is rejected or repudiated pursuant to the Plan or

separate motion and Final Order of the Bankruptcy Court.

(3) Proof of Claim Based on Executory Contracts or Unexpired Leases that Have

Been Assumed. Any and all proofs of claim relating to executory contracts or unexpired leases

that have been assumed in the Chapter 11 Case will be deemed amended and superseded by the

amount of Cure Claim identified in the Plan, the Confirmation Order or other order of the

Bankruptcy Court authorizing assumption of executory contracts to the Debtor or the Liquidating

Trust.

(4) Cure of Defaults for Assumed Executory Contracts and Unexpired Leases. All

Allowed Cure Claims will be satisfied by the Debtor by payment of the Cure in Cash to (i)

holders of such Cure Claims or on the Effective Date or as soon as reasonably practicable

thereafter, or (ii) on such other terms as may be either ordered by the Bankruptcy Court or

agreed by the Debtor and the applicable contract counter-party without any further notice to or

action, order, or approval of the Bankruptcy Court. Any provisions or terms of executory

contracts or unexpired leases to be assumed and assigned pursuant to the Plan that are, or may

be, alleged to be in default, shall be satisfied solely by the Cure, or by an agreed-upon waiver of

the Cure.

(5) Confirmation Order. Entry of the Confirmation Order will constitute a finding of

adequate assurance of future performance by the Liquidating Trust within the meaning of section

365 of the Bankruptcy Code. Any objections relating to adequate assurance of future

performance, or any other matters relating to the assumption and assignment of executory

contracts and unexpired leases (other than Cure Claim disputes) must be asserted as an objection

to confirmation of the Plan. Assumption of any executory contract or unexpired lease pursuant

to the Confirmation Order or other order of the Bankruptcy Court will limit the Claims of any

such contract counter-party to the (i) Allowed Cure Claim and (ii) Claims for ongoing

performance under the unexpired lease or executory contract by Liquidating Trust pursuant to

section 365(k) of the Bankruptcy Code.

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D. Indemnification and Reimbursement.

Subject to the occurrence of the Effective Date, all Allowed Claims against the

Debtor for indemnification, defense, reimbursement, or limitation of liability of current or former

directors, officers, or employees of the Debtor against any Claims, costs, liabilities or causes of

action as provided in the Debtor’s partnership agreement, operating agreement, bylaws, other

organizational documents, or applicable law, shall, to the extent such indemnification, defense,

reimbursement, or limitation is owed in connection with one or more events or omissions

occurring before the Petition Date, be paid only to the extent of any applicable insurance

coverage. Nothing contained in the Plan shall affect the rights of partners, managers, directors,

officers or employees under any insurance policy or coverage with respect to such Claims, costs,

liabilities or Causes of Action or limit the rights of the Debtor or the Debtor’s Estate to object to

or otherwise contest or challenge Claims or rights asserted by any current or former partner,

manager, officer, director or employee of the Debtor.

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ARTICLE IX

CONDITIONS PRECEDENT TO THE EFFECTIVE DATE

A. Conditions Precedent

The following are conditions precedent to the Effective Date that must be

satisfied or waived by the Debtor:

(1) The Successful Bidder pursuant to the Sale Approval Order shall have been 

awarded to a Successful Bid that provides sufficient Sale Proceeds for the Debtor to perform

under the terms proposed in this Plan;

(2) (1) The Court shall have entered the Confirmation Order in form and substance

acceptable to the Debtor confirming and approving the Plan in all respects.

(3) (2) The Court shall have entered a Confirmation Order in form and substance

acceptable to the Debtor confirming and approving the Plan in all respects.

(4) (3) There shall be no stay or injunction in effect with respect to the Confirmation

Order.

(5) (4) The Plan Documents shall be in a form and substance reasonably acceptable to

the Debtor, and have been duly executed and delivered; provided, however, that no party to any

such agreements and instruments, may unreasonably withhold its execution and delivery of such

documents to prevent this condition precedent from occurring.

B. Waiver

Notwithstanding the foregoing conditions, the Debtor reserves, in its sole

discretion, the right to waive the occurrence of any condition precedent or to modify any of the

foregoing conditions precedent. Any such written waiver of a condition precedent set forth in

this Plan may be effected at any time, without notice, without leave or order of the Bankruptcy

Court, and without any formal action other than proceeding to consummate the Plan. Any

actions required to be taken on the Effective Date or Confirmation Date (as applicable) shall take

place and shall be deemed to have occurred simultaneously, and no such action shall be deemed

to have occurred prior to the taking of any other such action.

ARTICLE X

EFFECT OF CONFIRMATION; INDEMNIFICATION,

INJUNCTIVE AND RELATED PROVISIONS

A. Compromise and Settlement

Pursuant to section 363 of the Bankruptcy Code and Bankruptcy Rule 9019, and

in consideration for the Distributions and other benefits provided pursuant to the Plan, the

provisions of the Plan shall constitute a good faith compromise of all Claims and Equity

Interests. The entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval

of the compromise or settlement of all Claims and Equity Interests, as well as a finding by the

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Bankruptcy Court that such compromises or settlements are fair, equitable, reasonable and in the

best interests of the Debtor, the Estate and holders of Claims and Equity Interests.

B. Binding Effect

Subject to the occurrence of the Effective Date, on and after the Confirmation

Date, the provisions of the Plan shall bind the Debtor, the Liquidating Trust, and any holder of a

Claim against, or Equity Interest in, the Debtor and such holder’s respective successors and

assigns, whether or not the Claim or Equity Interest of such holder is Impaired under the Plan

and whether or not such holder has accepted the Plan.

C. Discharge of Claims

Except as provided herein, the rights afforded in the Plan and the payments and

Distributions to be made hereunder shall discharge all existing debts, Claims and Equity

Interests, of any kind, nature, or description whatsoever against or in the Debtor or any of its

assets or properties to the fullest extent permitted by section 1141 of the Bankruptcy Code.

Except as provided herein, upon the Effective Date, all existing Claims against and Equity

Interests in the Debtor shall be, and shall be deemed to be, discharged and terminated, and all

holders of Claims and Equity Interests shall be precluded and enjoined from asserting against the

Liquidating Trust, its successors or assignees, or any of its assets or properties, any other or

further Claim or Equity Interest based upon any act or omission, transaction, or other activity of

any kind or nature that occurred prior to the Effective Date, whether or not such holder has filed

a proof of claim or proof of equity interest, and whether or not the facts or legal bases therefore

were known or existed prior to the Effective Date. Upon the Effective Date, all such persons

shall be forever precluded and enjoined, pursuant to section 524 of the Bankruptcy Code, from

prosecuting or asserting against the Liquidating Trust any such discharged Claim against or

Equity Interest in the Debtor.

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D. No Discharge of the Debtor

Pursuant to section 1141(d)(3) of the Bankruptcy Code, Confirmation of the Plan will not

discharge Claims against the Debtor; provided, however, that no Holder of any Claim or Equity

Interest may, on account of such Claim or Equity Interest, seek or receive any payment or other

Distribution from, or seek recourse against, any of the Estate, the Liquidating Trust, the

Liquidating Trustee, and/or their respective successors, assigns and/or property, except as

expressly provided in the Plan.

E. Exculpation

Notwithstanding anything contained herein the contrary, Genovese Joblove

& Battista, P.A. (and their respective employees, attorneys, professionals and agents) shall

neither have nor incur any liability relating to the Chapter 11 Case to any Entity for any

and all Claims and Causes of Action arising after the Petition Date and through the

Effective Date, including any act taken or omitted to be taken in connection with, or

related to, formulating, negotiating, preparing, disseminating, implementing,

administering, confirming or consummating the Plan or distributing property thereunder,

the Disclosure Statement, or any other contract, instrument, release or other agreement or

document created or entered into in connection with the Plan or any other postpetition act

taken or omitted to be taken in connection with the Chapter 11 Case; provided, however,

that the foregoing provisions of this Article shall have no effect on the liability of any Entity

that results from any such act or omission that is determined in a Final Order to have

constituted gross negligence, fraud or willful misconduct.

F. Limitations on Exculpation

Nothing in this Plan shall be construed to release or exculpate any Person from, or

require indemnification of any Person against losses arising from criminal conduct, intentional

unauthorized misuse of confidential information that causes damages, or limit the liability of the

professionals of the Debtor to the Debtor pursuant to Rule 4-1.8(h) of the Florida Rules of

Professional Conduct (“Limiting Liability for Malpractice”).

G. Injunction

From and after the Effective Date, all Entities are permanently enjoined from

commencing or continuing in any manner against the Debtor, the Liquidating Trust, the Estate,

and their successors and assigns, and their assets and properties, as the case may be, any suit,

action or other proceeding, on account of or respecting any Claim or Equity Interest, demand,

liability, obligation, debt, right, Cause of Action, interest or remedy released or satisfied or to be

released or satisfied pursuant to the Plan or the Confirmation Order.

Except as otherwise expressly provided for in the Plan or in obligations issued

pursuant to the Plan, from and after the Effective Date, all Entities shall be precluded from

asserting against the Debtor, the Liquidating Trust, the Estate, and their successors and assigns

and their assets and properties, any other Claims or Equity Interests based upon any documents,

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instruments, or any act or omission, transaction or other activity of any kind or nature that

occurred prior to the Effective Date, solely to the extent that (a) such Claims or Equity Interests

have been released or satisfied pursuant to the Plan or the Confirmation Order or (b) such

Claims, Equity Interests, actions or assertions of Liens relate to property that will be distributed

pursuant to the Plan or the Confirmation Order.

The rights afforded in the Plan and the treatment of all Claims and Equity

Interests in the Plan shall be in exchange for and in complete satisfaction of Claims and Equity

Interests against the Debtor or any of their assets or properties solely to the extent that (a) such

Claims or Equity Interests have been released or satisfied pursuant to the Plan or the

Confirmation Order or (b) such Claims, Equity Interests, actions or assertions of Liens relate to

property that will be distributed pursuant to the Plan or the Confirmation Order. On the

Effective Date, all such Claims against, and Equity Interests in, the Debtor shall be satisfied and

released in full.

Except as otherwise expressly provided for in the Plan or in obligations issued

pursuant to the Plan, all Persons and Entities are permanently enjoined, on and after the Effective

Date, on account of any Claim or Equity Interest satisfied and released pursuant to the Plan or

Confirmation Order, from:

(i) commencing or continuing in any manner any action or other proceeding of any kind

against the Debtor, the Liquidating Trust, the Estate and their successors and assigns and their

assets and properties;

(ii) enforcing, attaching, collecting or recovering by any manner or means any judgment,

award, decree or order against the Debtor, the Liquidating Trust, the Estate and their successors

and assigns and their assets and properties;

(iii) creating, perfecting or enforcing any encumbrance of any kind against the Debtor, the

Liquidating Trust, the Estate and their successors and assigns and their assets and properties; and

(iv) commencing or continuing in any manner any action or other proceeding of any kind in

respect of any Claim or Equity Interest or Cause of Action released or settled hereunder).

H. Release of Liens

Except as otherwise provided in the Plan or in any contract, instrument, release or other

agreement or document created pursuant to the Plan, on the Effective Date, all mortgages, deeds

of trust, Liens, pledges or other security interests against property of the Estate distributed under

the Plan shall be fully released and discharged and all of the right, title and interest of any holder

of such mortgages, deeds of trust, Liens, pledges or other security interest shall revert to the

Liquidating Trust.

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ARTICLE XI

RETENTION OF JURISDICTION

Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective

Date, the Bankruptcy Court shall, after the Effective Date, retain such jurisdiction over the

Chapter 11 Case and all Entities with respect to all matters related to the Chapter 11 Case, the

Debtor, the Liquidating Trust, and the Plan as is legally permissible, including, without

limitation, jurisdiction to:

(i) allow, disallow, determine, liquidate, classify, estimate or establish the priority or secured

or unsecured status of any Claim against or Equity Interest in the Debtor, including the

resolution of any request for payment of any Administrative Claim and the resolution of any and

all objections to the allowance or priority of Claims or Equity Interest;

(ii) grant, deny or otherwise resolve any and all applications of Professionals or Persons

retained in the Chapter 11 Case by the Debtor for allowance of compensation or reimbursement

of expenses authorized pursuant to the Bankruptcy Code or the Plan, for periods ending on or

before the Effective Date;

(iii) resolve any matters related to the assumption, assignment or rejection of any executory

contract or unexpired leases to which a Debtor is party or with respect to which a Debtor may be

liable and to hear, determine and, if necessary, liquidate, any Claims arising therefrom;

(iv) ensure that Distributions to holders of Allowed Claims or Equity Interests are

accomplished pursuant to the provisions of the Plan, including by resolving any disputes

regarding, as applicable, the Debtor’s or Liquidating Trust’s entitlement to recover assets held by

third parties;

(v) decide or resolve any motions, contested or litigated matters (including but not limited to

any adversary proceeding) and any other matters and grant or deny any applications involving

the Debtor that may be pending on the Effective Date or instituted by the Liquidating Trust after

the Effective Date;

(vi) enter such orders as may be necessary or appropriate to implement or consummate the

provisions of the Plan and all other contracts, instruments, releases, indentures and other

agreements or documents adopted in connection with the Plan or the Disclosure Statement;

(vii) issue injunctions, enforce them, enter and implement other orders or take such other

actions as may be necessary or appropriate to restrain interference by any Entity with the

Effective Date or enforcement of the Plan, except as otherwise provided in the Plan;

(viii) enforce Articles within this Plan;

(ix) resolve any cases, controversies, suits or disputes with respect to the injunction and other

provisions contained in Article XI, and enter such orders as may be necessary or appropriate to

implement or enforce all such releases, injunctions and other provisions;

(x) resolve any issues or matters related to the Liquidating Trust;

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 53 of 171
(xi) enter and implement such orders as necessary or appropriate if the Confirmation Order is

modified, stayed, reversed, revoked or vacated;

(xii) resolve any other matters that may arise in connection with or related to the Plan, the

Disclosure Statement, the Confirmation Order, or any contract, instrument, release, indenture or

other agreement or document adopted in connection with the Plan or the Disclosure Statement;

and

(xiii) enter an order and a Final Decree closing the Chapter 11 Case.

ARTICLE XIII

MISCELLANEOUS PROVISIONS

A. Modification of Plan

Subject to the limitations contained in the Plan, the Debtor reserves the right in its sole

discretion, in accordance with the Bankruptcy Code and the Bankruptcy Rules to amend or

modify the Plan prior to the entry of the Confirmation Order, including amendments or

modifications to satisfy section 1129(b) of the Bankruptcy Code, provided, however, that (1) any

pre-Confirmation Date amendments shall not materially or adversely affect the interests, rights

or treatment of any Allowed Claims or Equity Interests under the Plan as required under and in

accordance with Section 1127 of the Bankruptcy Code or applicable Bankruptcy Rules; and (2)

after the entry of the Confirmation Order, the Liquidating Trust may, upon order of the

Bankruptcy Court, amend or modify the Plan, in accordance with section 1127(b) of the

Bankruptcy Code, or remedy any defect or omission or reconcile any inconsistency in the Plan in

such manner as may be necessary to carry out the purpose and intent of the Plan.

B. Revocation of Plan

The Debtor reserves the right in its sole discretion to revoke or withdraw the Plan prior to

the entry of the Confirmation Order, and to file subsequent chapter 11 plans. If the Debtor

revokes or withdraws the Plan or if entry of the Confirmation Order or the Effective Date does

not occur, then: (1) the Plan shall be null and void in all respects; and (2) the Plan filed by the

Debtor shall not be affected as a result thereof; and (3) nothing contained in the Plan shall: (a)

constitute a waiver or release of any Claims by or against, or any Equity Interests in, the Debtor

or any other Entity; (b) prejudice in any manner the rights of either of the Debtor or any other

Entity; or (c) constitute an admission of any sort by either of the Debtor or any other Entity.

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 54 of 171
C. Binding Effect

On the Effective Date, the provisions herein shall bind any holder of a Claim

against, or present or former direct or indirect holder of an Equity Interest in, the Debtor and

such holder’s respective successors and assigns, whether or not the Claim or Equity Interest of

such holder is Impaired under the Plan, whether or not such holder has accepted the Plan and

whether or not such holder is entitled to a Distribution under the Plan.

D. Successors and Assigns

The rights, benefits and obligations of any Entity named or referred to herein shall

be binding on, and shall inure to the benefit of, any heir, executor, administrator, successor or

assign of such Entity.

E. Governing Law

Except to the extent that the Bankruptcy Code or Bankruptcy Rules apply, unless

otherwise stated, and subject to the provisions of any contract, instrument, release, indenture or

other agreement or document entered into in connection herewith, the rights and obligations

arising hereunder shall be governed by, and construed and enforced in accordance with, the laws

of the State of Florida without giving effect to the principles of conflict of laws thereof.

F. Reservation of Rights

The Plan shall have no force or effect unless and until the Effective Date occurs.

Neither the filing of the Plan, any statement or provision contained herein, nor the taking of any

action by the Debtor or any Entity with respect to the Plan shall be or shall be deemed to be an

admission or waiver of any rights of: (1) any Debtor with respect to the holders of Claims or

Equity Interests or other parties-in-interest; or (2) any holder of a Claim or other party-in-interest

prior to the Effective Date.

G. Section 1125(e) Good Faith Compliance

Confirmation of the Plan shall act as a finding by the Bankruptcy Court that the

Debtor and each of its Representatives have acted in “good faith” under sections 1125(e) and

1129(a)(3) of the Bankruptcy Code.

H. Further Assurances

The Debtor, all holders of Claims receiving Distributions hereunder, and all other

parties in interest shall, from time to time, prepare, execute and deliver any agreements or

documents and take any other actions as may be necessary or advisable to effectuate the

provisions and intent of the Plan or the Confirmation Order.

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 55 of 171
I. Service of Documents

Any pleading, notice or other document required herein to be served on or

delivered to the Debtor shall be sent by both email and first class, certified U.S. mail, postage

prepaid as follows:

AVENTURA HOTEL PROPERTIES, LLC

c/o HES Group

Attn: Francisco Arocha

1001 S.W Second Avenue

Suite 300

Miami, Florida 33130

GENOVESE JOBLOVE & BATTISTA, P.A.

Attn: Jesus M. Suarez, Esq.

100 SE 2nd Street, 44th Floor

Miami, FL 33131Telephone: (305) 349-2300

Facsimile: (305) 349-2310

Email: jsuarez@gjb-law.com

J. Filing of Additional Documents

On or before the Effective Date, the Debtor may file with the Bankruptcy Court

all agreements and other documents that may be necessary or appropriate to effectuate and

further evidence the terms and conditions hereof.

K. No Stay of Confirmation Order

The Debtor shall request that the Court waive stay of enforcement of the

Confirmation Order otherwise applicable, including pursuant to Federal Rules of Bankruptcy

Procedure 3020(e), 6004(h) and 7062.

L. Bankruptcy Rule 9019 Request; Impact

The Plan, including the Plan Supplement or other Plan Document, may provide

for one or more compromises or settlements. Pursuant to Bankruptcy Rule 9019, the Debtor

hereby requests approval of all compromises and settlements included in the Plan, and entry of

the Confirmation Order shall constitute the Bankruptcy Court’s approval, pursuant to

Bankruptcy Rule 9019, of any such compromise or settlement.

M. Automatic Stay

The automatic stay provided for under section 362 of the Bankruptcy Code shall

remain in effect in the Chapter 11 Case until the Effective Date.

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 56 of 171
Dated: August 11,16, 2021

AVENTURA HOTEL PROPERTIES,

LLC

By: /s/ Francisco Arocha

Name: Francisco Arocha

Title: Manager

GENOVESE JOBLOVE & BATTISTA, P.A.

By: /s/ Jesus M. Suarez 

Jesus M. Suarez

Fla. Bar No. 60086

jsuarez@gjb-law.com

John H. Genovese

Fla. Bar No. 280852

jgenovese@gjb-law.com

Barry P. Gruher

Fla. Bar No. 960993

bgruher@gjb-law.com

100 SE 2nd Street, 44th Floor

Miami, FL 33131

Telephone: (305) 349-2300

Facsimile: (305) 349-2310

Counsel for Debtor-in-Possession

Aventura Hotel Properties, LLC

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 57 of 171
EXHIBIT 1

LIQUIDATING TRUST AGREEMENT

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 59 of 171
LIQUIDATING TRUST AGREEMENT

THIS LIQUIDATING TRUST AGREEMENT (the “Agreement”), dated as of this ___

day of September, 2021, is by and among, Aventura Hotel Properties, LLC (the “Debtor”), and

___________________ individually, the liquidating trustee (the “Liquidating Trustee”)

appointed under and pursuant to the First Amended Chapter 11 Plan of Liquidation Proposed by

Aventura Hotel Properties, LLC. [ECF No. ____] (the “Plan”) dated August 21,16, 2021.1

WITNESSETH:

WHEREAS, the Debtor filed voluntary petitions for relief under chapter 11 of title 11,

United States Code (the “Bankruptcy Code”), commencing a chapter 11 bankruptcy case

(Case Nos. 21-12374-BKC-RAM) (the “Chapter 11 Case”) in the United States Bankruptcy

Court for the Southern District of Florida (the “Bankruptcy Court”);

WHEREAS, on September __, 2021, the Bankruptcy Court entered the Confirmation

Order confirming the Plan [ECF No. ___];

WHEREAS, the Plan provides for the creation of a grantor trust for the benefit of

the Liquidating Trust Beneficiaries (as defined herein) under and pursuant to the terms of the

Plan;

WHEREAS, this Agreement is executed by the parties hereto in order to establish a

liquidating trust, which trust is to be known as the “AHP Liquidating Trust” (the “Liquidating

Trust”), in accordance with Treasury Regulation Section 301.7701-4(d), whose primary purpose

is to provide a mechanism for the liquidation of the assets of the Estate, and to distribute the

proceeds of the liquidation, net of all claims, expenses, charges, liabilities, and obligations of the

Liquidating Trust, to the Liquidating Trust Beneficiaries in accordance with the terms of the Plan,

and not to continue or engage in the conduct of any trade or business, except to the extent

necessary to accomplish the liquidation of assets of the Estate (as defined herein);

1

 Capitalized terms not defined herein shall have the definitions provided for in the Plan. 

Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 60 of 171
WHEREAS, the corpus of the Liquidating Trust and all income earned thereon remaining

after the satisfaction of all trust expenses and liabilities shall be used solely for the purpose of

discharging the legal obligations of the Debtor’s Estate pursuant to the Plan;

WHEREAS, the parties to this Agreement desire that the Liquidating Trust created

pursuant to this Agreement qualify as a liquidating trust in accordance with Treasury Regulation

Section 301.7701-4(d) and that on qualification, the Liquidating Trust shall be taxed as a “grantor

trust” under and in accordance with the relevant provisions of the Internal Revenue Code of 1986,

as amended (the “Internal Revenue Code” or “I.R.C.”) and the Treasury Regulations pertaining

thereto, except as otherwise provided for United States federal income tax purposes in the event

that (i) any portion of this Liquidating Trust is treated as a “qualified settlement fund” pursuant to

Section 1.468B-1 of the Treasury Regulations, or (ii) the Liquidating Trustee timely elects to treat

any Liquidating Trust Assets allocable to the Disputed Claims Fund as a “disputed ownership

fund” pursuant to Section 1.468B-9(c)(2)(ii) of the Treasury Regulations.

NOW, THEREFORE, in consideration of the premises and other valuable consideration,

the receipt and sufficiency of which is hereby acknowledged, and subject to the terms and

conditions of this Agreement and the Plan, the Debtor and the Liquidating Trustee have executed

this Agreement for the sole benefit of the Liquidating Trust Beneficiaries and no other party as

follows:

ARTICLE I 

GRANT, ACCEPTANCE, NAME, AND DEFINITIONS

1.1 Grant. (i) Other than Available Cash already distributed under the Plan at Closing or

otherwise, the Debtor, for itself and the Debtor’s Estate, hereby irrevocably grants, assigns,

transfers, conveys, delivers, delegates, sets over and vests the Liquidating Trust Assets (as defined

in the Plan) in and to the Liquidating Trustee to be held in trust for the benefit of the Liquidating

Trust Beneficiaries and subject to the terms and provisions set out below and in the Plan.

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 61 of 171
Additionally, the Debtor, for itself and the Debtor’s Estate, irrevocably grants, assigns, transfers,

conveys, delivers, delegates, sets over and vests the Causes of Action to the Liquidating Trustee,

whether under the Bankruptcy Code or applicable non-bankruptcy law, including, without

limitation, the power to investigate, prosecute and/or settle all such Causes of Action. To the extent

that any law, regulation or contractual provision prohibits the transfer of ownership of any of the

Assets from the Debtor or the Debtor’s Estate to the Liquidating Trust or the Liquidating Trustee,

or if for any reason the Debtor or the Debtor’s Estate shall retain or receive at any point any

property which is included in, or intended under the Plan and this Agreement to be included in, the

definition of Liquidating Trust Assets, then the Estate shall and are hereby deemed to hold such

property (and any proceeds or products thereof) in trust for the Liquidating Trust Beneficiaries of

the Liquidating Trust and shall promptly notify the Liquidating Trustee of the existence of such

property and shall promptly take such actions with respect to such property as the Liquidating

Trustee shall direct in writing. It is intended that the Liquidating Trust Assets transferred pursuant

to this Section 1.1 shall provide the Liquidating Trust Beneficiaries with distributions on account

of their Allowed Claims and Allowed Equity Interests pursuant to and in accordance with the Plan.

(ii) This transfer will be treated for federal income tax purposes as a deemed transfer

by the Debtor to the Beneficiaries followed by a deemed transfer by the Beneficiaries to the Trust,

in accordance with Revenue Procedure 94-45, 1994-2 C.B. 684. The taxation of the deemed

transfers from the Debtor to the Beneficiaries will be treated as if the Debtor distributed the Assets

to the Beneficiaries in liquidation of their interests in the Debtor under IRC §§731 and 736.

(iii) The Liquidating Trustee hereby accepts the Liquidating Trust Assets and the

Liquidating Trust created hereunder, subject to the terms and provisions set out below and, in the

Plan, on behalf of and for the benefit of the Liquidating Trust Beneficiaries.

1.2 Name. The trust created pursuant to the terms hereof shall be known as the

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 62 of 171
“AHP Liquidating Trust” and shall be referred to herein as the “Liquidating Trust.”

1.3 Certain Terms Defined. For all purposes of this Agreement, the capitalized terms

used herein shall have the following meanings:

(i) “Agreement” shall mean this Liquidating Trust Agreement as originally executed

and as it may from time to time be amended pursuant to the terms hereof;

(ii) “Assets” or “Liquidating Trust Assets” means all Assets of the Estate, which

Liquidating Trust Assets are proposed to be transferred to and vested in the Liquidating Trust

under and in accordance with the terms of the Plan on the Effective Date. Liquidating Trust Assets

shall include any and all property of the Estate as defined under and included in Section 541(a) of

the Bankruptcy Code existing on the Effective Date of the Plan, including all Causes of Action

and the rights to prosecute, enforce and settle same;

(iii) “Alternate” shall have the meaning set forth in Section 12.2 of this Agreement;

(iv) “Class A Beneficial Interests” shall mean those certain Class A beneficial interests

in the Liquidating Trust to be issued to the Holders of Allowed Claims representing the right to

Distributions from the proceeds of the Liquidating Trust Assets, which Class A beneficial interests

shall not be certificated, but shall have priority for all purposes to Distributions over the Class B

Beneficial Interests.

(v) “Class B Beneficial Interests” shall mean those certain Class B beneficial interests

in the Liquidating Trust to be issued to the Holders of Equity Interests representing the right to

Distributions from the proceeds of the Liquidating Trust Assets, which Class B beneficial interests

shall not be certificated, but shall be subordinated in all respects to the payment in full of all

Allowed Claims represented by the Class A Beneficial Interests.

(1) (vi) “Disputed Claims Fund” as soon as practicable following the entry of the

Confirmation Order, the Liquidating Trustee shall establish the Disputed Claims Fund. The

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 63 of 171
Liquidating Trustee shall be responsible for making the Distributions to the Holders of Allowed

Claims and Allowed Equity Interests pursuant to the terms of the Plan, provided that the

Disputed Claims Fund, if applicable, is maintained and includesDisputed Claim Fund shall (i)

hold any Excess Sale Proceeds pending the determination of the Disputed Claim of QR Triptych (as

defined in the Plan); and (ii) hold any distribution that would otherwise be paid to a Disputed Claim

and in each case maintaining sufficient funds to pay and reserve for accruing interest on Disputed

Claims, and potential fees, costs, penalties or other charges against the Estate that could be incurred

in connection with the allowance of a Disputed Claim to the extent permitted in such contract by

and between the Debtor and Holder of the Disputed Claim. Claims estimated by the Bankruptcy

Court at $0 for all purposes in the Bankruptcy Case are disallowed in their entirety, are not

Disputed Claims, and are not entitled to any distributions under the Plan.

(vi) (vii) “Distribution Record Date” means a date selected by the Liquidating

Trustee preceding each distribution date (other than the initial distribution date), as the record

date for determining the holders of Allowed Claims and Allowed Equity Interests entitled to

participate in the distribution on such distribution date;

(vii) (viii) “Effective Date” means subject to the satisfaction or waiver as applicable

of the conditions set forth in the Plan, a date that is not later than tenfourteen (1014) Calendar

Days after the Confirmation Order is entered.

(viii) (ix) “Estate” means the Estate that was created by the commencement of the

Chapter 11 Case pursuant to section 541 of the Bankruptcy Code, and shall be deemed to include,

without limitation, any and all rights, powers, and privileges and Causes of Action of the Debtor

and any and all Assets and interests in property, whether real, personal or mixed, rights, causes of

action, avoidance powers or extensions of time that the Debtor or the Estate shall have had as of

the Petition Date, or which the Debtor or the Estate acquired after the commencement of the

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 64 of 171
Chapter 11 Case, whether by virtue of sections 541, 544, 545, 546, 547, 548, 549 or 550 of the

Bankruptcy Code, or otherwise the bankruptcy estate of the Debtor;

(ix) (x) “Liquidating Trust” shall have the meaning set forth in Section 1.2 hereof;

(x) (xi) “Liquidating Trust Beneficiaries” or “Beneficiaries” means the Holders of

Class A Beneficial Interests and Class B Beneficial Interests as of the Effective Date and Holders

of any Disputed Claims provided for in the Disputed Claims Fund.

(xi) (xii) “Liquidating Trustee” shall mean, subject to Bankruptcy Court approval,

______________________, individually, the Liquidating Trustee named to administer this

Liquidating Trust, and all successor Liquidating Trustees;

(xii) (xiii) “Liquidating Trust Reserve” means the amount of Available Cash

determined from time to time by the Liquidating Trustee on the Effective Date in the exercise of

their business judgment required to be reserved from any Distribution in order to pay Post

Confirmation Administrative Claims, post-confirmation U.S. Trustee fees and other obligations

of the Liquidating Trust, including to provide for a source of indemnification and reimbursement

for the Liquidating Trustee and other parties entitled to such indemnification and reimbursement

as set forth in the Liquidating Trust Agreement, the Plan, and the Confirmation Order.

1.4 Other Definitions. All capitalized terms used herein and not otherwise defined

herein shall have the meanings ascribed to them in the Plan.

ARTICLE II

NATURE OF TRANSFER

2.1 Purpose of Liquidating Trust. The Liquidating Trust is created solely to

implement the terms of the Plan. The primary purposes of the Liquidating Trust are to collect and

liquidate the Assets, pursue those Causes of Actions transferred to, and vested in, the Liquidating

Trust and distribute to the Liquidating Trust Beneficiaries all proceeds from the liquidation of the

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 65 of 171
Assets pursuant to the terms of the Plan. Under no circumstances shall the Liquidating Trustee

have any power to engage in any trade or business or any other activity except as specifically

provided herein or in the Plan or otherwise reasonably necessary and advisable for the orderly

liquidation and distribution of the Assets.

2.2 Representative of the Estate. If and to the extent the conveyance or assignment

of any of the Causes of Action to the Liquidating Trust would preclude or impair the prosecution

thereof by the Liquidating Trustee under the Bankruptcy Code or otherwise, then the Liquidating

Trust is intended to and shall be deemed to be a “representative of the Estate” approved to retain

and enforce such Causes of Action pursuant to 11 U.S.C. §§ 1123(b)(3)(A) and (3)(B).

2.3 Grantor Trust. The Liquidating Trust created by this Agreement is intended: (i) as

a trust governed and construed in all respects as a liquidating trust pursuant to Treasury Regulation

Section 301.7701-4(d) and as a grantor trust in favor of the Liquidating Trust Beneficiaries

pursuant to the relevant provisions of the Code and the Treasury Regulations pertaining thereto;

and (ii) to comply with the requirements of a liquidating trust as set forth in Revenue Procedure

94-45, 1994-2 C.B. 684, except as otherwise provided for United States federal income tax

purposes in the event that (A) any portion of this Liquidating Trust is treated as a “qualified

settlement fund” pursuant to Section 1.468B-1 of the Treasury Regulations, or (B) the Liquidating

Trustee timely elects to treat any Liquidating Trust Assets allocable to the Disputed Claims Fund

as a “disputed ownership fund” pursuant to Section 1.468B-9(c)(2)(ii) of the Treasury Regulations.

Subject to the immediately preceding sentence, the Liquidating Trustee is hereby authorized and

directed: (i) to take any and all actions necessary to maintain the Liquidating Trust as a liquidating

trust for federal income tax purposes in accordance with Treasury Regulation Section

301.7701-4(d) and Revenue Procedure 94-45 and as a “grantor trust” under and in accordance with

the relevant provisions of the Code and Treasury Regulations pertaining thereto unless otherwise

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 66 of 171
required; and (ii) to take any and all actions permitted or required to be taken by the Liquidating

Trustee pursuant to this Agreement and the Plan.

2.4 Liabilities of the Debtor. The Liquidating Trustee, solely for and on behalf of the

Liquidating Trust, shall utilize all or such part of the Assets as may be necessary to, and shall, pay

any and all Allowed Claims and Allowed Equity Interests in the Debtor and all Disputed Claims

in the Debtor in accordance with and pursuant to the terms of the Plan.

2.5 Court Approval Not Required. The Liquidating Trustee shall, subject to the

terms of this Trust Agreement or the Plan, be empowered to exercise all rights and powers granted to

the Liquidating Trustee in this Agreement, the Plan, and Confirmation Order in the exercise of her

business judgment without need of further Bankruptcy Court approval. Nevertheless, the

Liquidating Trustee may seek to obtain Bankruptcy Court approval if she determines in the exercise

of her business judgment that it is appropriate to do so.

ARTICLE III

BENEFICIARIES

3.1 Rights of Beneficiaries. Each Liquidating Trust Beneficiary shall be entitled to

participate in the rights and benefits due to a Liquidating Trust Beneficiary hereunder. The interest

of each Beneficiary in the Liquidating Trust is hereby declared and shall be in all respects personal

property of such Beneficiaries and upon the death of an individual Beneficiary, their interest shall

pass to their legal representative and such death shall not terminate the Liquidating Trust or

otherwise affect the validity of this Agreement. Each Beneficiary shall have the rights with respect

to the Assets as are provided by this Agreement and the Plan. No widower, widow, heir, or

devisee of any person who may be a Beneficiary shall have any right of power, homestead,

inheritance, or partition, or any other right, statutory or otherwise, in any property whatsoever

forming a part of the Assets, but the whole title to all the Assets shall be vested in the Liquidating

Trustee and the sole interest of the Beneficiaries shall be the rights and benefits given to such

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 67 of 171
persons under this Agreement.

3.2 Transfer of Interests of Beneficiaries. No interest of a Beneficiary may be

transferred either by the Beneficiary or by a duly authorized agent or attorney, or by the properly

appointed legal representatives of the Beneficiary except as otherwise provided for by the Plan and

in accordance with Bankruptcy Rule 3001. In the event of any such transfer, the transferee shall

take and hold such interest subject to the terms and provisions of this Trust Agreement and shall

give prompt written notice of such transfer to the Liquidating Trustee. The Liquidating Trustee

shall not be liable to any transferee of an interest of a Beneficiary for any distributions provided

for hereunder unless such transfer is valid under the terms of the Plan and in accordance with

Bankruptcy Rule 3001 and until the Liquidating Trustee receives written notice of such transfer

together with appropriate assignment and transfer documents signed by the applicable Beneficiary.

3.3 Beneficiary Information. The Liquidating Trustee may rely upon information

relating to each Beneficiary as it appears in the books and records of the Liquidating Trust upon

the Distribution Record Date. As of the close of business on the date the Confirmation Order is

entered there shall be no further changes in the record Holders of Equity Interests. The Liquidating

Trustee shall have no obligation to recognize any transfer of any such Interests occurring after the

close of business on the Distribution Record Date, and shall instead be entitled to recognize and

deal for all purposes with only those Holders of record as of the close of business on the

Distribution Record Date.

3.4 Certification of Interests. The Liquidating Trustee shall not be required to issue

certificates or other instruments representing or evidencing the interests of the Beneficiaries in the

Liquidating Trust, but nothing contained herein shall prohibit them from doing so.

ARTICLE IV

DURATION OF ASSETS

4.1 Duration. The Liquidating Trust shall remain in existence and continue in full

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 68 of 171
force and effect until all of the following shall have occurred: (a) the entirety of the Assets have

been reduced to cash or the Liquidating Trustee has determined that it is impractical or not in the

best interest of the Beneficiaries of the Liquidating Trust to do so; (b) all costs, expenses and

obligations incurred in administering the Liquidating Trust have been paid and discharged; (c) the

Assets have been distributed to the Beneficiaries in accordance with the Plan; and (d) a final

report has been filed and a final decree closing the Bankruptcy Cases has been entered; provided,

however, subject to the immediately succeeding sentence, the Liquidating Trust shall not remain

in existence more than five years from the date of this Agreementthe Effective Date. If warranted

by the facts and circumstances provided for in the Plan, and subject to the approval of the

Bankruptcy Court of a motion of the Liquidating Trustee seeking an extension of the term of the

Liquidating Trust as necessary to the purpose of the Liquidating Trust, then the term of the

Liquidating Trust may be extended for a finite term based on the particular circumstances. The

Bankruptcy Court must approve each extension within six months of the beginning of the

extended term with notice thereof to all Liquidating Trust Beneficiaries.\ Notwithstanding the

foregoing, the Liquidating Trust shall in no event remain in existence for more than twenty-one

years from the date of this Agreement.

ARTICLE V

ADMINISTRATION OF LIQUIDATING TRUST ESTATE

5.1 Right and Powers. The Liquidating Trustee shall have all rights and powers of a

trustee under section 1106 and 704 of the Bankruptcy Code and, in accordance with section

1123(b) of the Bankruptcy Code, and as set forth in the Plan, and shall be designated and serve as

the sole representative of the Debtor’s Estate. Subject to the terms of the Plan and this Agreement,

the Liquidating Trustee may, at such times and in such manner as he may deem appropriate,

transfer, assign, or otherwise dispose of all or any part of the Assets.

5.2 Payment of Interest to Beneficiaries. The Liquidating Trustee shall hold the

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Assets without provision for or the payment of interest to any Beneficiary except to the extent

provided for under the Plan.

5.3 Payment of Claims, Expenses, and Liabilities and the Reserve Amounts.

The Liquidating Trustee shall pay from the Assets all claims, expenses, charges, liabilities,

and obligations of the Liquidating Trust, whether civil or otherwise, and all liabilities and

obligations which the Liquidating Trustee, on behalf of the Liquidating Trust, has specifically

assumed and agreed to pay pursuant to the terms of this Agreement, including any

post-confirmation claims arising from the administration of the Liquidating Trust, together with

such transferee liabilities which the Liquidating Trust may be obligated to pay as transferee of the

Assets, including among the foregoing, and without limiting the generality of the foregoing,

interest, taxes, assessments, and public charges of every kind and nature and the costs, charges,

and expenses connected with or growing out of the execution or administration of this

Liquidating Trust and such other payments and disbursements as are provided in this Agreement

or which may be determined to be a proper charge against the Assets by the Liquidating

Trustee or by any court of competent jurisdiction. In addition, the Liquidating Trustee may,

pursuant to the terms of the Plan, make provision or reserve out of the Assets to meet present or

future claims, expenses and liabilities of the Liquidating Trust, whether fixed or contingent,

known or unknown.

5.4 Federal Income Tax Information. By the annual tax return filing due date

including extension, if applicable, the Liquidating Trustee shall mail to each Beneficiary of record

during such year, a statement showing information sufficient for each Beneficiary to determine its

share of income, gain, loss, deductions and credits for federal income tax purposes in accordance

with §§1.671-4(a) and 1.671-4(b)(3) of the United States Treasury Regulations. The Liquidating

Trustee shall not be required to report such tax information to any Beneficiary unless such

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Beneficiary provides to the Liquidating Trustee a complete form W-9 or acceptable substitute

signed under penalty of perjury. In determining each Beneficiary’s share of income, gain, loss,

deductions and credits, the Liquidating Trustee shall not allocate such items to any Beneficiary

who is the Holder of an Equity Interest, which has no value until such time, if at all, as a value of

the Equity Interest arises. For this purpose, an Equity Interest shall have no value for any taxable

year in which the Beneficiary who is the holder of the Equity Interest would receive no distribution

from the Liquidating Trust if the Liquidating Trust terminated and distributed all of its assets on

the last day of the taxable year.

5.5 Required Filing. The Liquidating TrusteeTrust shall prepare and file with

appropriate state and federal agencies and authorities, all such documents, forms, reports and returns

(including, but not limited to, state and federal income tax returns and Forms 1099) as the

Liquidating Trustee shall, with the advice and assistance of their post-confirmation

professionals, including but not limited to legal counsel and accountants, deem necessary,

required or appropriate in connection with the creation, existence, operation or termination of the

Trust. The Liquidating Trustee shall file returns for the Liquidating Trust as a grantor trust

pursuant to Treas. Reg. §§ 1.671-4(a) and 1.671-4(b)(3)(ii).

5.6 Tax Attributes and Tax Characteristics of the Trust. The Beneficiaries of the

Liquidating Trust shall be treated as its grantors and deemed owners. The Liquidating Trustee shall

file or cause to be filed tax returns for the Liquidating Trust as a grantor trust pursuant to Treas.

Reg. § 1.671-4(a), or (b), as appropriate. Accordingly, the taxable income or loss of the

Liquidating Trust, including taxable income attributable to any reserves, if any, will be allocated to

the Beneficiaries on an annual basis, pro rata or as otherwise in accordance with their respective

entitlement to receive distributions from the Liquidating Trust if the Liquidating Trust terminated

and distributed all its assets on the last day of the taxable year (taking into account all prior and

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concurrent distributions from the Liquidating Trust during such taxable year), subject to the terms

herein, and the Beneficiaries shall be responsible to report and pay the taxes due on their

proportionate share of the Liquidating Trust taxable income, whether or not any amounts are

actually distributed by the Liquidating Trustee to the Beneficiaries. The value of the Assets

transferred into the Liquidating Trust shall be the fair market value of such Assets at the time of

such transfer, as reasonably determined by the Liquidating Trustee, in consultation with the

Trustee and such advisors as the Liquidating Trustee deems appropriate, within a reasonable

period of time after the Effective Date. Such valuation shall be binding on all parties including, but

not limited to, the Debtor, the Debtor’s Estate, the Trustee, the Liquidating Trustee, and all

Beneficiaries, and these valuations will be used by such parties for all federal income tax purposes.

5.7 Revenue Ruling Requests. The Liquidating Trustee on behalf of Beneficiaries

may, but shall not be required to, file a ruling request (in accordance with the procedures set

forth in Revenue Procedure 94-45, 1994-2 C.B. 684) with the Internal Revenue Service to

have the Liquidating Trust classified as a liquidating trust as described in Treas. Reg.

§301.7701-4(d).

5.8 Necessary Documents. On the Effective Date, the Liquidating TrusteeDebtor shall

execute and deliver all documents reasonably required by the Liquidating Trustee including the

endorsement of any instruments, all business records of the Debtor, and authorizations to permit

the Liquidating Trustee to access all bank records, tax returns, and other files and records of the

Debtor, including files held by the Liquidating TrusteeDebtor’s professionals, the Debtor’s Estate

or the Liquidating Trustee as necessary for the administration of the Liquidating Trust. The

Liquidating TrusteeDebtor’s professionals shall provide the Liquidating Trustee any and all

documents or information reasonably requested by Liquidating Trustee for the administration of

the Liquidating Trust.

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5.9 Privileges Transferred to Liquidating Trustee. The Liquidating Trustee, as set

forth in the Plan, shall control all applicable legal privileges of the Debtor and its Estate, including

control over all work product and attorney-client privilege for matters arising from or relating to

transactions or activity occurring, in whole or in part, prior to the Effective Date.

5.10 Disposition of Interests and Causes of Action. Subject to the terms of this section,

the Liquidating Trustee shall have the authority to initiate, prosecute, settle, resolve, dismiss,

object to, reconcile or otherwise dispose of any Claim, Equity Interest, Administrative

Expense Claim, or Causes of Action (collectively, the “Claims/Causes of Action Resolution”),

where the amount at issue is more than $250,000 shall require Court approval, shall be subject to

notice to the Beneficiaries or to such lesser list of parties ordered by the Bankruptcy Court.Maser

Service List (as set forth in paragraph 14.12 below), and All settlements shall be guided by the

principles of the settlement standards set forth by Bankruptcy Rule 9019 and the legal standards

for settlement set forth in the Eleventh Circuit for such settlements, including In Re Justice

Oaks II, Ltd., 898 F.2d 1544, 1549 (11th Cir. 1990), cert den., 498 U.S. 959, 1126 L.Ed. 398,

111 S.Ct. 389 (1990), or such other prevailing, binding law. No Court approval is required where

the amount at issue is less than $250,000.00.

5.11 Federal Rules of Bankruptcy Procedure. Any deadline imposed by this 

Agreement or the Plan may be extended by the Bankruptcy Court pursuant Federal Rule of

Bankruptcy Procedure 9006(a) upon notice to the Master Service List. 

5.12 5.11 Standing. Subject to Sections 5.10 and 5.13 of this Agreement and Article

V(A) of the Plan, the Liquidating Trustee shall have the sole standing and authority to file

objections to Administrative Expense Claims, Claims, Equity Interests, or prosecute, settle,

liquidate, dispose of, and/or abandon Causes of Action, and to defend against any and all

counterclaims asserted in connection therewith.

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5.13 5.12 Qualified Settlement Fund; Disputed Ownership Fund. Notwithstanding

anything in this Agreement to the contrary, in the event that (i) any portion of the Liquidating Trust

is treated as a “qualified settlement fund” pursuant to Treas. Reg. § 1.468B-1, or (ii) the

Liquidating Trustee timely elects to treat any portion of the Liquidating Trust subject to

Disputed Claim or Disputed Equity Interests as a “disputed ownership fund” pursuant to

Treas. Reg. § 1.468B- 9(c)(2)(ii), any federal income tax consequences shall be determined

under IRC § 468B and the Treasury Regulations thereunder.

ARTICLE VI

DISTRIBUTIONS TO BENEFICIARIES

6.1 Distribution of the Liquidating Trust Assets. The Liquidating Trustee shall make

an initial distribution (the “Initial Distribution”) as soon as reasonably practicable after the

Effective Date. The Liquidating Trustee shall, in their sole discretion, make further Distributions

to the Liquidating Trust Beneficiaries of all Cash on hand in accordance with the terms of the

Liquidating Trust Agreement and the priorities set forth in the Plan (including any Cash received

from the Debtor on the Effective Date) except such amounts (i) as are retained by the Liquidating

Trust on account of Disputed Claims, (ii) as are reasonably necessary to meet contingent liabilities

and to maintain the value of the Liquidating Trust Assets during liquidation, including to fund the

Liquidating Trust Reserve; (iii) as are necessary to pay reasonably incurred and anticipated fees

and expenses (including any taxes imposed on the Liquidating Trust or in respect of the

Liquidating Trust Assets) of the Liquidating Trust and the Liquidating Trustee, and (iv) as are

necessary to satisfy other liabilities incurred and anticipated by the Liquidating Trust or imposed

on the Liquidating Trust in accordance with this Plan or the applicable Liquidating Trust

Agreement.

6.2 Assets Retained on Account of Disputed Claims. After the Effective Date, the

Liquidating Trust Assets shall include sufficient funds to pay in full any Disputed Claims,

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and such funds will constitute the Disputed Claims Fund, which will be held for the benefit of

the Holder of the Disputed Claims. When the claims are resolved, the Allowed Claim, if any, shall

be paid from the Disputed Claims Fund pursuant to the terms of the Plan.

6.3 No Distributions Pending Allowance. Notwithstanding any other provision in the

Plan, if any portion of a Claim is disputed, no payment or distribution provided under the Plan

shall be made on account of such Claim unless and until such Disputed Claim becomes an

Allowed Claim.

6.4 Distributions After Allowance. To the extent that a Disputed Claim ultimately

becomes an Allowed Claim, distributions shall be made to the Allowed Claim Holder in

accordance with the provisions of the Plan. Upon allowance, an Allowed Claim Holder shall

receive any Distributions that would have been made up to the date of allowance to such Allowed

Claim Holder under the Plan had the Disputed Claim been allowed on the Effective Date plus any

actual earnings on such distribution from the date that such distribution would have been made had

the Disputed Claim been allowed on the Effective Date through the date of allowance.

6.5 Tax Identification Numbers. The Liquidating Trustee may require any Beneficiary

with an Allowed Claim entitled to a Distribution under the Plan to furnish their employer or

taxpayer identification number (the “TIN”) assigned by the Internal Revenue Service. Any

Distribution under the Plan may be conditioned on the receipt of such TIN. If any such Holder of

an Allowed Claim entitled to a Distribution hereunder fails to provide a requested TIN within

forty-five (45) days after the request thereof, then such failure shall be deemed to be a waiver of

such Holder’s interest in any future Distributions, including the right to receive any future

Distributions.

ARTICLE VII

POWERS OF AND LIMITATIONS ON THE LIQUIDATING TRUSTEE

7.1 Limitations on Liquidating Trustee. The Liquidating Trustee shall not do any act or 

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undertake any activity unless he determines, in good faith, that such act or activity is desirable,

necessary, or appropriate for the management, conservation, and protection of the Liquidating

Trust Assets and is in compliance with this Agreement and the Plan. The investment powers of the

Liquidating Trustee are limited to the powers to invest temporarily cash portions of the Estate in

demand and time deposits in banks or savings institutions, temporary investment such as

short-term certificates of deposit, investments in United States Treasuries, or money market funds.

The Liquidating Trustee shall be restricted to the holding, liquidation, and collection of

Liquidating Trust Assets and the payment and distribution thereof for the purposes set forth in the

Plan, and to the conservation and protection of the Liquidating Trust and the Liquidating Trust

Assets, and administration thereof in accordance with the provisions of this Trust Agreement and

the Plan.Notwithstanding anything in this Agreement to the contrary, the Trustee shall not do or

undertake any of the following

(a) Take any action in contravention of the Plan, the Confirmation Order or this 

Agreement.

(b) Take any action that would significantly jeopardize treatment of the Liquidating Trust 

as a "liquidating trust" for federal income tax purposes.

(c) Grant liens on any of the Trust Assets.

(d) Guaranty any debt;

(e) Loan Trust Assets to the Trustee.

(f) Purchase Trust Assets from the Liquidating Trust.

(g) Transfer Trust Assets to another trust with respect to which the Trustee serves as 

trustee.

7.2 Specific Powers of Liquidating Trustee. Subject to the provisions of the 

preceding paragraph, the Plan and this Agreement, the Liquidating Trustee shall have the

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following specific powers in addition to any powers granted by 11 U.S.C. §§ 1106 and 704 or

conferred upon them by any other provision of this Agreement or the Plan; provided, however, that

enumeration of the following powers shall not be considered in any way to limit or control the

power of the Liquidating Trustee to act as specifically authorized by any other provisions of this

Agreement or the Plan, and to act in such manner as the Liquidating Trustee may deem necessary

or appropriate to discharge all obligations of or assumed by the Liquidating Trustee or provided

herein or in the Plan and to conserve and protect the Liquidating Trust and the Liquidating Trust

Assets or to confer on the Beneficiaries the benefits intended to be conferred upon them by this

Agreement or the Plan, at all times subject to the terms of this Agreement and the Plan:In

connection with the administration of the Liquidating Trust, except as otherwise set forth herein,

the Trustee is authorized to perform only those acts necessary and desirable to accomplish the

purposes of the Liquidating Trust. The Liquidating Trust shall succeed the rights of the Debtor

necessary to protect, conserve and liquidate all Liquidating Trust Assets as quickly as reasonably

practicable. Subject to the limitations set forth in this Trust Agreement, the Plan and the

Confirmation Order, the Liquidating Trustee may exercise all powers granted it hereunder related

to, or in connection with, the collection, prosecution, liquidation, and distribution to the

Beneficiaries, of the Trust Assets. Without limiting, but subject to, the foregoing, the Liquidating

Trustee shall be expressly authorized

(a) To determine when or on what terms Assets should be sold, liquidated or otherwise 

disposed of;open and maintain bank accounts on behalf of or in the name of the Liquidating Trust,

calculate and make Distributions and take other actions consistent with the Plan and the

implementation thereof, including the establishment, re-evaluation, adjustment and maintenance of

appropriate reserves, in the name of the Liquidating Trust.

(b) To collect and receive any and all money and other Assets of whatsoever kind or 

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nature due to or owing or belonging to the Liquidatingreceive, conserve and manage the Trust;

Asset

(c) Pending sale or other disposition or distribution, to retain all or any Assets regardless 

of whether or not such Assets are, or may become, unproductive or a wasting asset. The

Liquidating Trustee shall not be under any duty to reinvest such part of the Liquidating Trust as

may be in Cash, or as may be converted into Cash; nor shall the Liquidating Trustee be chargeable

with interest thereon except to the extent that interest may be paid to the Liquidating Trust on such

Cash amounts;To hold legal title to any and all Trust Assets.

(d) To retain and set aside such funds out of the Assets as the Liquidating Trustee shall 

deem necessary or expedient to pay, or provide for the payment of (i) Allowed Claims and

Allowed Equity Interests pursuant to the Plan; and (ii) any Reserve amounts;Subject to the

applicable provisions of the Plan, to prosecute, collect and liquidate the Trust Assets.

(e) Subject to section 5.10 of this Trust Agreement, to do and perform any acts or things 

necessary or appropriate for the management, conservation and protection of the Liquidating Trust,

including acts or things necessary or appropriate to maintain Liquidating Trust Assets pending sale

or other disposition thereof or distribution thereof to the Beneficiaries, and in connection therewith

to employ such agents, including post- confirmation professionals as provided for in this

Agreement or the Plan, and to confer upon them such authority as the Liquidating Trustee may

deem expedient, and to pay fees and expenses therefor;To take discovery from third parties,

including but not limited to, issuing Fed.R.Bankr.P. 2004 subpoenas and discovery requests.

(f) To cause any investment of the Liquidating Trust to be registered and held in the 

name of the Liquidating Trustee or in the names of a nominee or nominees, or in the names of a

nominee or nominees of another entity, without increase or decrease of liability with respect

thereto;Make decisions regarding the retention or engagement of Trustee's Professionals and to

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pay, from the Trust Assets and the proceeds thereof, the fees and charges incurred by the

Liquidating Trust and the fees and expenses of the Liquidating Trustee's Professionals, as well as

the disbursements, expenses or related support services relating to the implementation of the Plan

and performance by the Trustee of its duties under this Agreement. To pay all lawful, expenses,

debts, charges and liabilities of the Liquidating Trust.

(g) Subject to the terms of this Agreement, to prepare, file, assert, commence and 

prosecute, or continue to prosecute in the case of existing actions, any and all Causes of Action, as

the Liquidating Trustee may determine to be of value and benefit to the Liquidating Trust and the

Beneficiaries;To wind down the affairs of the Trust including the filing of final tax returns, if

applicable, establish any administrative reserves necessary to close the Trust and make all

Distributions to the Beneficiaries provided for or contemplated by the Plan.

(h) To withhold from the amount distributable to any Person such amount as may be 

sufficient to pay any tax or other charge which the Trustee has determined, in its sole discretion,

may be required to be withheld therefrom under the income tax laws of the United States or of any

state or political subdivision thereof. In the exercise of its discretion and judgment, the Trustee

may enter into agreements with taxing or other governmental authorities for the payment of such

amounts as may be withheld in accordance with the provisions of this section.

(i) To enter into any agreement or execute any document required by or consistent with 

the Plan and perform all obligations thereunder.

(j) To abandon in any commercially reasonable manner, including abandonment or 

donation to a charitable organization of its choice, any assets if it concludes that they are of no

significant value or benefit to the Liquidating Trust.

(k) (h) Subject to the terms of this Agreement, to institute or defend actions or 

declaratory judgments, to substitute the Liquidating Trustee for the Debtor or the Debtor’s Estate

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as the real party in interest in pending litigation, and to take such other action, in the name of the

Liquidating Trust if required, as the Liquidating Trustee may deem necessary or desirable to

enforce any instruments, contracts, agreements, or causes of action relating to or forming a part of

the Liquidating Trust;Except as otherwise set forth in this Trust Agreement, to have exclusive

power to prosecute and/or settle all causes of actions including, without limitation, Avoidance

Actions or any other causes of action or counterclaims as described in the Plan and Disclosure

Statement (the “Causes of Action") and exercise, participate in or initiate any proceeding before

the Bankruptcy Court or any other court of competent and appropriate jurisdiction and voluntarily

participate as a party or otherwise in any administrative proceeding, arbitration, mediation, or other

nonjudicial proceeding and litigate or settle such Actions on behalf of the Liquidating Trust, and

pursue such actions to settlement or final order, all in accordance with the terms of this Agreement.

(i) Subject to the terms of this Agreement, to cancel, terminate, or amend any instruments,

contracts or agreements relating to or forming a part of the Liquidating Trust to the full

extent permitted by such instruments, contracts or agreements and to execute new

instruments, contracts, or agreements;

(j) To perform any act authorized, permitted, or required under any instrument, contract,

agreement, or cause of action relating to or forming a part of the Liquidating Trust

whether in the nature of an approval, consent, demand, or notice thereunder or otherwise;

(k) Subject to the terms of this Agreement, to deal in and with all accounts receivable,

promissory notes and contracts which form a part of the Liquidating Trust Assets with full

authority to compromise, settle and otherwise deal in and with such Liquidating Trust

Assets as the Liquidating Trustee shall deem appropriate, subject to Bankruptcy Court

approval after notice and hearing;

(l) To take all actions for and on behalf of the Debtor and the Debtor’s Estate, including 

but not limited to, the preparation, execution and filing of documents, as the Liquidating Trustee

shall deem necessary, desirable or appropriate in order to complete, conclude and finalize any

filing, reporting or other obligations which the Debtor, the Debtor’s Estate, the Liquidating

Trustee, or the Liquidating Trust may have to any state or federal governmental authority,

including the Liquidating Trustee’s required completion and filing of all of the Debtor’s final or

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otherwise required federal, state, and local tax returns, which shall be done by the Liquidating

Trustee;hold any unclaimed Distributions or payment to a Beneficiary in accordance with this

Agreement, the Confirmation Order and the Plan.

(m) Subject to the terms of this Agreement, to enter into such consulting or employment 

arrangements or otherwise retain such accountants, agents, attorneys, consultants or independent

contractors as the Liquidating Trustee shall deem necessary, desirable and appropriate to enable

the Liquidating Trustee to accomplish the purposes enumerated in this Agreement and the

Plan;To purchase or create and carry all insurance policies and pay all insurance premiums and

costs it deems necessary or advisable.

(n) To make the distributions provided for in this Agreement orimplement and/or enforce 

all provisions of the Plan;.

(o) Subject to the terms of this Agreement, to have control and management of the 

Liquidating Trust;To collect and liquidate all Trust Assets pursuant to the Plan, the Confirmation

Order and this Agreement and to ultimately close the Chapter 11 Case.

(p) To make the election described in Treas. Reg. § 1.468B-9(c)(2)(ii) to treat any

portion of the Liquidating Trust subject to Disputed Claims as a “disputed ownership fund” for

federal income tax purposes;object to Claims and supervise and administer the resolution,

settlement and payment of such Claims and the distribution to the Beneficiaries in accordance with

this Agreement and the Plan. Specifically, the Liquidating Trustee may compromise or settle any

such Claim (disputed or otherwise) free of any restrictions other than those restrictions expressly

imposed by the Plan, the Confirmation Order or this Agreement.

(q) To establish one or more “qualified settlement funds” within the meaning of IRC §

468B and the Treasury Regulations thereunder for any interests for which a “qualified

settlement fund” is required or permitted by law;Exercise such rights of setoff as the Debtor or the

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Estate may have had against any Beneficiary and/or seek Court approval of such exercise.

(r) To request any appropriate tax determination, including, without limitation, a

determination pursuant to Section 505 of the Bankruptcy Code;Voluntarily engage in arbitration or

mediation with regard to any dispute.

(s) To destroy any records of the Debtor as authorized by the Bankruptcy Court

(including, without limitation, the client files) and to request authority to destroy any records of

the Debtor not previously authorized by the Bankruptcy Court; (i) seek a determination of tax

liability under section 505 of the Bankruptcy Code, (ii) file, if necessary, any and all tax

information returns required with respect to the Liquidating Trust treating the Liquidating Trust as

a grantor trust pursuant to Treas. Reg. 1.67-4(a) or otherwise, (iii) make tax elections by and on

behalf of the Liquidating Trust and (iv) pay taxes, if any, payable by the Liquidating Trust.

(t) To take any action reasonably necessary to effectuate the wind down and

dissolution of the Debtor in all respects without further corporate action under applicable law,

regulation, order or rule required; and make all distributions to holders of Allowed Claims

provided for or contemplated by the Plan. Resolve issues pe1taining to the retention or disposal of

the Liquidating Trust's administrative and business records.

(u) To takeperform any and all other action as is authorized under the Plan.other actions 

or duties required to be performed by the Liquidating Trustee pursuant to the provisions of the

Plan and/or Confirmation Order

7.3 Preservation, Prosecution, and Defense of Causes of Action. Subject to the

terms of this Agreement, the Liquidating Trustee shall have the right to pursue any and all Causes

of Action of the Debtor or the Debtor’s Estate, whether or not such causes of action had been

commenced as of the Effective Date, and shall be substituted as a real party in interest in any

actions commenced by or against the Debtor or the Debtor’s Estate, provided, however, that any

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settlement of a Cause of Action shall require the approval of the Bankruptcy Court upon the filing

of a motion and a hearing only as required by Section 5.11 above.

7.4 Indemnification of Liquidating Trustee and Liquidating Trust Professionals. The

Liquidating Trustee and the Liquidating Trustee’s attorneys, employees, officers, directors, agents,

representatives, and professionals, as the case may be, shall be held harmless and shall not be

liable for actions taken or omitted in their capacity as, or on behalf of, the Liquidating Trustee,

except those acts that are determined by Final Order to have arisen out of their own intentional

fraud, willful misconduct or gross negligence, and each shall be entitled to be indemnified, held

harmless, and reimbursed for fees and expenses including, without limitation, reasonable

attorney’s fees, which such Persons and Entities may incur or may become subject to or in

connection with any action, suit, proceeding or investigation that is brought or threatened against

such Persons or Entities in respect of that person’s or entity’s or the Liquidating Trustee’s actions

or inactions regarding the implementation or administration of the Plan, the Liquidating Trust or

the Liquidating Trust Agreement or the discharge of their duties hereunder or thereunder, except

for any actions or inactions that are determined by Final Order to have arisen from intentional

fraud, willful misconduct or gross negligence. Any claim of the Liquidating Trustee and the other

parties entitled to indemnification under this section, to be indemnified, held harmless, or

reimbursed shall be satisfied solely from the Liquidating Trust Assets, including but not limited to

the Available Cash, or any applicable insurance coverage. The Liquidating Trustee shall be

entitled to rely, in good faith, on the advice of their retained professionals regardless of whether

such advice is provided in writing or verbally. Notwithstanding the foregoing, the Liquidating

Trustee shall not be under any obligation to consult with their retained professionals, and their

determination not to do so shall not result in the imposition of liability on the Liquidating Trustee

unless such determination is based on willful misconduct, gross negligence, or intentional fraud. 

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ARTICLE VIII

CONCERNING THE LIQUIDATING TRUSTEE

8.1 Generally. The Liquidating Trustee accepts and undertakes to discharge the trust

created by this Agreement upon the terms and conditions hereof and of the Plan and Confirmation

Order through the exercise of their business judgment. In performing their duties hereunder, the

Liquidating Trustee and their professionals may rely on information reasonably believed by them to

be accurate and reliable.

8.2 Reliance by Liquidating Trustee. Except as otherwise provided in Sections 7.1 or

8.1: (i) the Liquidating Trustee and their professionals may rely and shall be protected in acting

upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,

order, or other paper or document believed by them to be genuine and to have been signed or

presented by the proper party or parties; a n d (ii) the Liquidating Trustee may consult with

and retain legal counsel and other professionals to be selected by him, and the Liquidating

Trustee shall not be liable for any actions taken or suffered by them in accordance with the advice

of such counsel, and may also consult with former counsel, former accountants, and former

consultants or advisors of the Debtor or present and former officers, directors and consultants of

the Debtor. The fees of such legal counsel and other professionals for the Liquidating Trustee

shall be paid from the Assets in accordance with the Plan.

8.3 Counsel and Advisors for Liquidating Trustee. (a) The Liquidating Trustee

may retain and compensate attorneys, accountants and other professionals to assist in their duties

as Liquidating Trustee hereunder on such terms (including on a contingency or hourly basis) as the

Liquidating Trustee deems appropriate withoutand subject to Bankruptcy Court approval. Without

limiting the foregoing, the Liquidating Trustee may retain any Professional that represented the

Debtor or other parties in interest in this Chapter 11 Case. The Liquidating Trustee shall not be

liable for any actions taken or suffered by them in accordance with the advice of such

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Professionals, and may also consult with and retain current and former accountants, consultants

or other professionals of the Debtor, the Debtor’s Estate, present and former officers and

directors of the Debtor, the Debtor’s Estate and each of their respective affiliates or subsidiaries.

The actual fees and expenses of post-confirmation Professionals retained by the Liquidating Trustee

shall be paid from the Assets and in accordance with the Plan and the Confirmation Order.

Post-confirmation Professionals retained by the Liquidating Trustee need not be

“disinterested” as that term is defined in the Bankruptcy Code and may include, without limitation,

the Liquidating Trustee’s firm (should the Liquidating Trustee be a part of a professional services

firm (the “LT Firm”)) and its affiliates, as well as counsel, employees, interim management,

financial advisors, independent contractors or agents of the Trustee or the LT Firm. The

Liquidating Trustee is hereby expressly authorized to utilize the services of the LT Firm, its

affiliates and personnel as post-confirmation professionals (rather than utilizing other similarly

situated or available personnel or professional services firms) notwithstanding that (a) the

Liquidating Trustee may benefit (directly or indirectly) from the compensation paid to the LT Firm,

and (b) other persons or entities may be available to provide the same or similar work at similar or

more competitive prices. In no event shall the Liquidating Trustee, the LT Firm or their affiliates

be subject to a claim of a conflict of interest or breach of fiduciary duty or any other claim arising

as a result of the appointment of any such person in accordance with this provision.

8.4 Liquidating Trust’s Funds . No provision of this Agreement or the Plan shall

require the Liquidating Trustee to expend or risk their own funds or otherwise incur any

financial liability in the performance of any of their duties as Liquidating Trustee hereunder,

under the Plan, or in the exercise of any of its rights or powers, if the Liquidating Trustee

shall have reasonable grounds for believing that repayment of funds or adequate indemnity or

security satisfactory to them against such risk or liability is not reasonably assured to him. For

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the avoidance of doubt, the Liquidating Trustee shall not be required to rely on the security,

reimbursement or indemnity of the LT Firm, its affiliates or their respective insurers in

determining whether the assurances described in the preceding sentence are available.

ARTICLE IX

PERSONS DEALING WITH THE LIQUIDATING TRUSTEE

9.1 Liquidating Trustee Not Personally Liable. Persons dealing with the Liquidating

9.1 Trustee shall look only to the Assets to satisfy any liability incurredLiquidating

Trustee Not Personally Liable. Only the Liquidating Trust may be liable for any action taken by

the Liquidating Trustee to such person in carrying out the terms of this Liquidating Trust or the

Plan. Neither the Liquidating Trust norexcept as otherwise provided herein, and liability of the

Liquidating Trust may only be satisfied from the assets of the Liquidating Trust. The Liquidating

Trustee is not personally liable for any obligation of the Liquidating Trust, and the Liquidating

Trustee shall not have any personal or individual obligation to satisfy any such liability of the

Liquidating Trust unless it is proven that the Liquidating Trustee breached their fiduciary duty,

was grossly negligent, acted with willful misconduct or fraud in ascertaining the pertinent facts or

in performing any of the rights, powers or duties herein or in the Plan.

9.2 Authority of Liquidating Trustee. Any person dealing with the Liquidating Trustee

9.2 Authority of Liquidating Trustee. Any person dealing with the Liquidating 

Trustee shall be fully protected in relying upon the Liquidating Trustee’s certificate signed by the

Liquidating Trusteebelief that that such Liquidating Trustee has authority to take any action under

this Agreement.

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ARTICLE X

COMPENSATION

10.1 Compensation of Liquidating Trustee. The Liquidating Trustee shall be entitled to

10.1 Compensation of Liquidating Trustee. The Liquidating Trustee shall be entitled 

to compensation in connection with fulfilling their duties hereunder at their customary hourly

rate, plus reasonable out of pocket expenses, to be paid monthly from the Liquidating Trust

Assets. The Liquidating Trustee shall not receive or be entitled to receive any other compensation

on account of the performance of their duties hereunder.

10.2 Payment of Costs/Expenses. The costs and expenses of the Liquidating Trust, and

the reasonable fees and expenses of the Liquidating Trustee and the Liquidating Trustee’s

Professionals, United States Trustee fees, shall be paid out of the Liquidating Trust Assets.

Those Professionals shall continue to file fee applications with the Bankruptcy Court for services

provided to the Liquidating Trust and Liquidating Trustee, and all requests of Professionals

retained by the Liquidating Trust for payment of fees or expenses shall be made by means of an

interim or final fee application and shall be subject to the approval of, and review by, the

Bankruptcy Court to ensure that such payment conforms to the terms of any engagement

agreement, the Bankruptcy Code, the Bankruptcy Rules, the Local Bankruptcy Rules.

ARTICLE XI

LIQUIDATING TRUSTEE AND SUCCESSOR LIQUIDATING TRUSTEE

11.1 Resignation and Removal. The Liquidating Trustee may resign at any time;

provided, however, that he shall file a motion with the Bankruptcy Court in connection therewith

and request that a successor or replacement be appointed in accordance herewith, which motion

shall be on notice to the top twenty (20) Creditors holding Allowed Claims and the Office of the

United States Trustee. The Office of the United States Trustee or any party in interest, by motion

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filed with the Bankruptcy Court, or the Bankruptcy Court on its own order to show cause, may

seek to remove the Liquidating Trustee for cause, including under Section 324 of the Bankruptcy

Code, or, if Section 324 is deemed inapplicable, then for the same reasons that would otherwise

suffice under Section 324, for the violation of any material provision of the Plan, or in the event

the Liquidating Trustee becomes incapable of acting hereunder as a result of physical or mental

disability and such physical or mental disability continues for a period in excess of thirty (30) days

(except in the case of death, in which instance the procedures for replacement will begin

immediately). In the event of a resignation or removal, the Liquidating Trustee, unless he is

incapable of doing so, shall continue to perform their duties hereunder until such a time as a

successor is approved by a Final Order of the Bankruptcy Court. In the event the Liquidating

Trustee resigns or is removed, the Liquidating Trust Beneficiaries, shall have 90 days to select a

successor Liquidating Trustee by filing a motion with the Bankruptcy Court. If the Liquidating

Trust Beneficiaries do not select a successor Liquidating Trustee, then the Office of the United

States Trustee may file a motion with the Bankruptcy Court seeking an order directing the United

States Trustee to select such successor.

11.2 Appointment of Successor. Should the Liquidating Trustee resign or be removed,

or die or become incapable of action, a vacancy shall be deemed to exist. In the event of such a

vacancy, the Liquidating Trust Beneficiaries shall have 90 days to select a successor Liquidating

Trustee by the filing of a motion with the Bankruptcy Court in connection therewith. If the

Liquidating Trust Beneficiaries do not so select a successor Liquidating Trustee, then the Office

of the United States Trustee may file a motion with the Bankruptcy Court seeking an order

directing the United States Trustee to select such successor. The compensation, if any, of the

successor Liquidating Trustee shall be (i) stated in the instrument evidencing such successor

Liquidating Trustee’s appointment and (ii) included in the motion filed with the Bankruptcy Court.

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11.3 Acceptance of Appointment by Successor Liquidating Trustee. Each successor

Liquidating Trustee appointed hereunder shall execute an instrument accepting such appointment.

Thereupon such successor Liquidating Trustee shall, without any further act, become vested with

all the Estate’s properties, rights, powers, trusts, and duties as were held by their predecessor in the

Liquidating Trust hereunder, with like effect as if originally named in such instrument; but the

retiring Liquidating Trustee shall nevertheless, when requested in writing by the successor

Liquidating Trustee, execute and deliver any instrument or instruments conveying and transferring

to such successor Liquidating Trustee upon the Liquidating Trust herein expressed, all the Estate’s

properties, rights, powers, and trusts of such retiring Liquidating Trustee, and shall duly assign,

transfer, and deliver to such successor Liquidating Trustee all property and money held by them

hereunder, including the Assets. Notwithstanding the appointment of a successor Liquidating

Trustee, the retiring Liquidating Trustee shall, without limitation, continue to be entitled to the

indemnity provided herein for acts and omissions through the effective date of their resignation.

ARTICLE XII

CONCERNING THE BENEFICIARIES

12.1 Limitation on Suits by Beneficiaries. No Beneficiary shall have any right by virtue

12.1 Limitation on Suits by Beneficiaries. No Beneficiary shall have any right by

virtue of any provision of this Agreement to institute any action or proceeding at law or in equity

against any party upon or under or with respect to the Assets.

12.2 Expenses in Connection with Litigation. In connection with any lawsuit or action

12.2 Expenses in Connection with Litigation. In connection with any lawsuit or action

by or against the Liquidating Trustee regarding any rights, actions, or omissions under this Trust

Agreement or the Plan, the Liquidating Trustee may request any court to require, and any court

may in its discretion require, that a party to such action other than the Liquidating Trustee pay all

costs and fees associated with such action.

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ARTICLE XIII

AMENDMENTS

13.1 Amendments. The Liquidating Trustee may make and execute such declarations

amending this Agreement for the purpose of adding any provisions to or changing in any

manner or eliminating any of the provisions of this Agreement or amendments hereto;

provided, however, that no such amendment shall permit the Liquidating Trustee to act in any

manner which is inconsistent with the Plan or engage in any activity prohibited by this

Agreement or affect the Beneficiaries’ rights to receive their share of any Distributions under this

Agreement or the Plan.

13.2 Notice and Effect of Amendment. Promptly after the execution by the Liquidating

Trustee of any declaration of amendment permitted by and pursuant to this Agreement, the

Liquidating Trustee shall give notice of the substance of such amendment to (a) all Beneficiaries

who request such amendment in writing, and (b) the Office of the United States Trustee. Upon

the execution of any such declaration of amendment by the Liquidating Trustee, this Agreement

shall be deemed to be modified and amended in accordance therewith and the respective rights,

limitations of rights, obligations, duties and immunities of the Liquidating Trustee and the

Beneficiaries under this Agreement shall thereafter be determined, exercised and enforced

hereunder subject in all respects to such modification and amendment, and all the terms and

conditions of this Agreement for any and all purposes.

ARTICLE XIV

MISCELLANEOUS PROVISIONS

14.1 Further Assurances. The Debtor and the Liquidating Trustee shall promptly

execute and deliver such further instruments and do such further acts as may be necessary or

proper to more effectively transfer to the Liquidating Trustee any portion of the Assets

intended to be conveyed pursuant to the Plan and this Agreement to otherwise carry out the

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intentions of this Agreement and the Plan.

14.2 Invalid Acts. Any act or omission by the Liquidating Trustee in violation or

derogation of any term of this Agreement or otherwise of the Plan shall be void ab initio.

14.3 Retention of Jurisdiction. The Bankruptcy Court shall retain jurisdiction over this 

Agreement in order to give effect to the Plan and Confirmation Order. The Bankruptcy Court shall

retain jurisdiction over this Agreement and the Liquidating Trust established hereby as set forth in

the Plan, including, without limitation, the enforcement, modification and interpretation of its

provisions, for the purpose of determining all amendments, applications, claims or disputes with

respect to this Agreement, the substitution of the Liquidating Trustee, and all applications, claims

and disputes related thereto.

14.4 Filing Documents. This Agreement shall be filed or recorded in such office or

offices as the Liquidating Trustee may determine to be necessary or desirable. A copy of this

Agreement and all amendments thereof shall be maintained in the office of the Liquidating Trustee

and shall be available during regular business hours for inspection by any Beneficiary or their duly

authorized representative. The Liquidating Trustee shall file or record any amendment of this

Agreement in the same places where the original Agreement is filed or recorded. The Liquidating

Trustee shall file or record any instrument which relates to any change in the office of the

Liquidating Trustee in the same places where the original Agreement is filed or recorded and shall

maintain a copy of any such instrument in their office.

14.5 Intention of Parties to Establish Trust. This Agreement is not intended to create,

and shall not be interpreted as creating, an association, partnership, or joint venture of any kind.

14.6 Laws as to Construction. This Agreement shall be governed and construed in

accordance with the laws of the State of Florida, without giving effect to the principles of conflicts

of law.

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14.7 Severability. In the event any provision of this Agreement or the application

thereof to any person or circumstance shall be finally determined by a court of competent

jurisdiction to be invalid or unenforceable to any extent, the remainder of this Agreement, or the

application of such provision to persons or circumstances other than those as to which it is

held invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement

shall be valid and enforced to the fullest extent permitted by law.

14.8 No Assignment. Except as otherwise provided herein, the obligations, duties, or

rights of the Liquidating Trustee under this Agreement shall not be assignable, voluntarily,

involuntarily, or by operation of law, and any such attempted assignment shall be void ab initio.

14.9 Calendar Year. The Trust will utilize the calendar year for tax and

financial accounting purposes.

14.10 Inconsistency with Plan. To the extent of any inconsistency: (i) the provisions of

this Agreement shall control over the provisions of the Disclosure Statement; (ii) the provisions of

the Plan shall control over the contents of this Agreement, and the Disclosure Statement; and (iii)

the provisions of the Confirmation Order shall control over the contents of the Plan.

14.11 Effectiveness. This Agreement shall become effective on the Effective Date.

14.12 Notices. Any notice or other communication hereunder shall be deemed to have

been sufficiently given, for all purposes, if given by being deposited, postage prepaid, in a post

office or letter box addressed to the Beneficiary at their address as shown on the records of the

Liquidating Trustee (in the case of notices to a Beneficiary) and addressed to the Liquidating

Trustee, at the address set forth below (in the case of a notice to the Liquidating Trustee), except

that notice of change of address shall be effective only upon receipt thereof. Any notice given by

mail in accordance with this paragraph shall be deemed to be effective three days following its

deposit in the mail. For any Court filings, it shall be deemed sufficient service for the Liquidating

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Trustee to limit service to the parties listed on the “Master Service List” that is kept in accordance

with Local Rule 2002-1(H)(1). To the extent that it is appropriate to serve the Liquidating Trust

Beneficiaries, it is deemed sufficient service for the Liquidating Trustee to serve (in addition to

those on the Master Service List): (I) Holders of the Class A Beneficial Interests (a) who have either

(i) been scheduled) and not marked as disputed, unliquidated, or contingent) or (ii) have filed a

proof of claim and (b) whose claims have not been withdrawn, stricken, or wholly disallowed by an

order that is final and nonappealable, and (II) Holders of Class B Beneficial Interests who have

interests that have not been withdrawn, stricken or wholly disallowed by an order that is final and

nonappealable solely to the extent that such Holders are expected to receive payment from the

Liquidating Trust. The Liquidating Trustee may file a motion for procedure to vary or limit notice

as appropriate. 

14.13 Confidentiality. The Liquidating Trustee and any respective successor (each a

“Covered Person”) shall, during the period that they serve in such capacity under this

Agreement and following either the termination of this Agreement or such individual’s

removal, incapacity, or resignation hereunder, hold strictly confidential and not use for personal

gain any material, nonpublic information of or pertaining to any entity to which any of the assets

of the Liquidating Trust relates or of which it has become aware in its capacity (the “Information”),

except to the extent disclosure is required by applicable law, order, regulation or legal process. In

the event that any Covered Person is requested or required (by oral questions, interrogatories,

requests for information or documents, subpoena, civil investigation, demand or similar legal

process) to disclose any Information, such Covered Person will furnish only that portion of the

Information, which the Covered Person, advised by counsel, is legally required and exercise all

reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the

Information.

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Francisco Arocha, Manager Liquidating Trustee

Date Date

14.13 14.14 Counterparts. This Agreement may be executed in any number of

counterparts, each of which shall be deemed an original, but all of which shall together constitute

one and the same instrument.

IN WITNESS WHEREOF, the parties have caused this Agreement to be signed and

acknowledged as of the date set forth in the opening paragraph hereof.

Aventura Hotel Properties, LLC

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 95 of 171
EXHIBIT B

Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 96 of 171
UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

www.flsb.uscourts.gov

In re: Chapter 11

AVENTURA HOTEL PROPERTIES, LLC, Case No. 21-12374-BKC-RAM

TRIPTYCH MIAMI HOLDINGS, LLC, Case No. 21-12375-BKC-RAM

 Debtor. Jointly Administered Under

____________________________________/ Case No. 21-12374-BKC-RAM

DISCLOSURE STATEMENT IN SUPPORT OF FIRST AMENDED CHAPTER 11 PLAN

OF LIQUIDATION PROPOSED BY AVENTURA 

HOTEL PROPERTIES, LLC 

GENOVESE JOBLOVE & BATTISTA, P.A.

Jesus M. Suarez

Fla. Bar No. 60086

jsuarez@gjb-law.com

John H. Genovese

Fla. Bar No. 280852

jgenovese@gjb-law.com

Barry P. Gruher

Fla. Bar No. 960993

bgruher@gjb-law.com

100 SE 2nd Street, 44th Floor

Miami, FL 33131

Telephone: (305) 349-2300

Facsimile: (305) 349-2310

Counsel for Debtor-in-Possession

Aventura Hotel Properties, LLC

Dated: August 11,16, 2021

Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 97 of 171
DISCLAIMER

THE INFORMATION CONTAINED IN THIS DISCLOSURE STATEMENT IN

SUPPORT OF FIRST AMENDED CHAPTER 11 PLAN OF LIQUIDATION (“DISCLOSURE

STATEMENT”) IS INCLUDED HEREIN FOR PURPOSES OF SOLICITING

ACCEPTANCES OF THE FIRST AMENDED CHAPTER 11 PLAN OF LIQUIDATION

PROPOSED BY AVENTURA HOTEL PROPERTIES, LLC, DATED AUGUST 11,16, 2021

(THE “AMENDED PLAN” or “PLAN”)

1

, AND MAY NOT BE RELIED UPON FOR ANY

PURPOSE OTHER THAN TO DETERMINE HOW TO VOTE ON THE PLAN. NO

SOLICITATION OF VOTES TO ACCEPT THE PLAN MAY BE MADE EXCEPT

PURSUANT TO SECTION 1125 OF TITLE 11 OF THE UNITED STATES CODE.

THE PLAN IS SUBJECT TO THE DEBTOR SUCCESSFULLY

CONSUMMATING A SALE OF ITS PRINCIPAL ASSET, AN ACRE OF LAND IN

MIAMI DADE COUNTY, FLORIDA. IN ORDER FOR THE DEBTOR TO

SUCCESSFULLY CONFIRM THIS PLAN AND COMPLY WITH ITS OBLIGATION

TO OBLIGATIONS TO SENIOR LENDER LV MIDTOWN, LLC UNDER THE LV

SETTLEMENT AGREEMENT, IT MUST SELL THE PROPERTY FOR AT LEAST $22

MILLION. IF THE DEBTOR IS UNABLE CLOSE ON SUCH A TRANSACTION, OR

OTHERWISE RENEGOTIATE THE TERMS OF ITS AGREEMENT WITH ITS

SENIOR LENDER, EITHER PURSUANT TO THE TERMS OF THE SALE APPROVAL

ORDER [ECF NO. 106] OR OTHERWISE, THE DEBTOR MAY INSTEAD ELECT TO

SEEK DISMISSAL OR CONVERSION OF ITS BANKRUPTCY CASE PURSUANT TO

SECTION 1112 OF THE BANKRUPTCY CODE. 

ALL CREDITORS ARE ADVISED AND ENCOURAGED TO READ THIS

DISCLOSURE STATEMENT AND THE AMENDED PLAN IN THEIR ENTIRETY

BEFORE VOTING TO ACCEPT OR REJECT THE PLAN. ALL HOLDERS OF CLAIMS

SHOULD CAREFULLY READ AND CONSIDER FULLY THE RISK FACTORS SET

FORTH IN THIS DISCLOSURE STATEMENT (“RISK FACTORS IN CONNECTION WITH

THE PLAN”) BEFORE VOTING TO ACCEPT OR REJECT THE PLAN. PLAN

SUMMARIES AND STATEMENTS MADE IN THIS DISCLOSURE STATEMENT ARE

QUALIFIED IN THEIR ENTIRETY BY REFERENCE TO THE PLAN AND THE EXHIBITS

ANNEXED TO THIS DISCLOSURE STATEMENT, INCLUDING THE DEFINITIONS OF

TERMS CONTAINED IN SUCH DOCUMENTS. ALL EXHIBITS TO THE DISCLOSURE

STATEMENT ARE INCORPORATED INTO AND ARE A PART OF THIS DISCLOSURE

STATEMENT AS IF SET FORTH IN FULL HEREIN.

THIS DISCLOSURE STATEMENT CONTAINS A SUMMARY OF CERTAIN

PROVISIONS OF THE PLAN. ALTHOUGH THE DEBTOR BELIEVES AND HAS MADE

EVERY EFFORT TO ENSURE THAT THIS SUMMARY PROVIDES ADEQUATE

INFORMATION WITH RESPECT TO THE PLAN, IT DOES NOT PURPORT TO BE

COMPLETE AND IS QUALIFIED TO THE EXTENT IT DOES NOT SET FORTH THE

ENTIRE CONTENT OF THE PLAN. IF THERE IS ANY INCONSISTENCY BETWEEN

THE PLAN AND THE SUMMARY OF THE PLAN CONTAINED IN THIS DISCLOSURE

1 Unless otherwise defined, capitalized terms used herein shall have the meaning ascribed to such terms in the Plan.

 a

Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 98 of 171
STATEMENT, THE PLAN SHALL CONTROL. ACCORDINGLY, EACH HOLDER OF A

CLAIM SHOULD REVIEW THE PLAN IN ITS ENTIRETY.

THE DISCLOSURE STATEMENT HAS BEEN PREPARED IN ACCORDANCE

WITH SECTION 1125 OF THE UNITED STATES BANKRUPTCY CODE AND RULE

3016(b) OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE AND NOT

NECESSARILY IN ACCORDANCE WITH OTHER NON-BANKRUPTCY LAW. PERSONS

OR ENTITIES TRADING IN OR OTHERWISE PURCHASING, SELLING OR

TRANSFERRING CLAIMS AGAINST OR EQUITY INTEREST IN THE DEBTOR SHOULD

EVALUATE THIS DISCLOSURE STATEMENT AND THE PLAN IN LIGHT OF THE

PURPOSE FOR WHICH IT WAS PREPARED. THIS DISCLOSURE STATEMENT SHALL

NOT BE CONSTRUED TO BE ADVICE ON THE TAX, SECURITIES OR OTHER LEGAL

EFFECTS OF THE REORGANIZATION OF ANY DEBTOR AS TO HOLDERS OF CLAIMS

AGAINST OR EQUITY INTEREST IN SUCH DEBTOR.

AS TO ANY CONTESTED MATTERS OR OTHER ACTIONS OR THREATENED

ACTIONS, THIS DISCLOSURE STATEMENT SHALL NOT CONSTITUTE OR BE

CONSTRUED AS AN ADMISSION OF ANY FACT OR LIABILITY, STIPULATION OR

WAIVER, BUT RATHER AS A STATEMENT MADE IN SETTLEMENT NEGOTIATIONS.

THIS DISCLOSURE STATEMENT WILL NOT BE ADMISSIBLE IN ANY

NON-BANKRUPTCY PROCEEDING INVOLVING ANY DEBTOR OR ANY OTHER

PARTY, NOR WILL IT BE CONSTRUED TO BE CONCLUSIVE ADVICE ON THE TAX,

SECURITIES, OR OTHER LEGAL EFFECTS OF THE PLAN AS TO HOLDERS OF

CLAIMS AGAINST, OR EQUITY INTERESTS IN, ANY DEBTOR AND

DEBTOR-IN-POSSESSION IN THE CHAPTER 11 CASES.

NO HOLDER OF A CLAIM SHOULD RELY ON ANY INFORMATION RELATING

TO ANY DEBTOR, ITS RESPECTIVE PROPERTY OR THE PLAN OTHER THAN THAT

CONTAINED IN THIS DISCLOSURE STATEMENT AND THE ATTACHED EXHIBITS.

THE STATEMENTS CONTAINED IN THIS DISCLOSURE STATEMENT ARE MADE AS

OF THE DATE HEREOF UNLESS ANOTHER TIME IS SPECIFIED HEREIN, AND (I)

THERE CAN BE NO ASSURANCE THAT THE STATEMENTS CONTAINED HEREIN

WILL BE CORRECT AT ANY TIME AFTER THE DATE HEREOF, AND (II) THE

DELIVERY OF THIS DISCLOSURE STATEMENT SHALL NOT CREATE AN

IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE INFORMATION STATED

SINCE THE DATE HEREOF.

THIS DISCLOSURE STATEMENT IS THE ONLY DOCUMENT AUTHORIZED BY

THE BANKRUPTCY COURT TO BE USED IN CONNECTION WITH THE SOLICITATION

OF VOTES ACCEPTING THE PLAN. NO REPRESENTATIONS HAVE BEEN

AUTHORIZED BY THE BANKRUPTCY COURT CONCERNING ANY DEBTOR OR THE

PLAN, EXCEPT AS EXPLICITLY SET FORTH IN THE DISCLOSURE STATEMENT.

APPROVAL OF THIS DISCLOSURE STATEMENT BY THE BANKRUPTCY COURT

DOES NOT INDICATE THAT THE BANKRUPTCY COURT RECOMMENDS EITHER

ACCEPTANCE OR REJECTION OF THE PLAN NOR DOES SUCH APPROVAL

CONSTITUTE A DETERMINATION BY THE BANKRUPTCY COURT OF THE FAIRNESS

 b

Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 99 of 171
OR MERITS OF THE PLAN OR OF THE ACCURACY OR COMPLETENESS OF THE

INFORMATION CONTAINED IN THIS DISCLOSURE STATEMENT.

EXCEPT WHERE SPECIFICALLY NOTED, THE FINANCIAL INFORMATION

CONTAINED HEREIN HAS NOT BEEN AUDITED BY A CERTIFIED PUBLIC

ACCOUNTANT AND HAS NOT BEEN PREPARED IN ACCORDANCE WITH

ACCOUNTING PRINCIPLES GENERALLY ACCEPTED IN THE UNITED STATES.

ALTHOUGH THE PROFESSIONALS EMPLOYED BY THE DEBTOR HAVE

ASSISTED IN PREPARING THIS DISCLOSURE STATEMENT BASED UPON FACTUAL

INFORMATION AND ASSUMPTIONS RESPECTING FINANCIAL, BUSINESS, AND

ACCOUNTING DATA FOUND IN THE BOOKS AND RECORDS OF THE DEBTOR, THEY

HAVE NOT INDEPENDENTLY VERIFIED SUCH INFORMATION AND MAKE NO

REPRESENTATIONS AS TO THE ACCURACY THEREOF, INCLUDING SPECIFICALLY

IN CONNECTION WITH THE INFORMATION CONTAINED IN THE WATERFALL

ANALYSIS ATTACHED TO THIS DISCLOSURE STATEMENT. THE PROFESSIONALS

EMPLOYED BY THE DEBTOR SHALL HAVE NO LIABILITY FOR THE INFORMATION

IN THIS DISCLOSURE STATEMENT OR IN THE EXHIBITS ATTACHED HERETO.

THE DEBTOR RESERVES THE RIGHT TO OBJECT TO ANY CLAIM PRIOR TO

THE DATE ESTABLISHED BY THE BANKRUPTCY COURT. ON AND AFTER THE

EFFECTIVE DATE OF THE PLAN, THE LIQUIDATING TRUST WILL BE VESTED WITH

FULL AUTHORITY TO UNDERTAKE THE CLAIMS OBJECTION PROCESS WITH

RESPECT TO ALL CLAIMS THAT HAVE NOT BEEN PREVIOUSLY RESOLVED BY

COURT ORDER OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, GENERAL

UNSECURED CLAIMS AND THE SECURED CLAIM OF QR TRIPTYCH). THE ACTUAL

AMOUNTS OF THE DISTRIBUTIONS UNDER THE PLAN TO THE HOLDERS OF

ALLOWED GENERAL UNSECURED CLAIMS THAT ARE OBJECTED TO BY THE

DEBTOR OR THE LIQUIDATING TRUSTEE, AS THE CASE MAY BE, WILL BE

DETERMINED AFTER COMPLETION OF THE CLAIMS OBJECTION PROCESS.

IRS CIRCULAR 230 NOTICE: TO ENSURE COMPLIANCE WITH IRS

CIRCULAR 230, HOLDERS OF CLAIMS AND EQUITY INTERESTS ARE HEREBY

NOTIFIED THAT: (A) ANY DISCUSSION OF FEDERAL TAX ISSUES CONTAINED OR

REFERRED TO IN THIS DISCLOSURE STATEMENT IS NOT INTENDED OR WRITTEN

TO BE USED, AND CANNOT BE USED, BY HOLDERS OF CLAIMS OR EQUITY

INTERESTS FOR THE PURPOSE OF AVOIDING PENALTIES THAT MAY BE IMPOSED

ON THEM UNDER THE INTERNAL REVENUE CODE; (B) SUCH DISCUSSION IS

WRITTEN IN CONNECTION WITH THE PROMOTION OR MARKETING BY THE

DEBTOR OF THE TRANSACTIONS OR MATTERS ADDRESSED HEREIN; AND (C)

HOLDERS OF CLAIMS AND EQUITY INTERESTS SHOULD SEEK ADVICE BASED ON

THEIR PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR.

THIS DISCLOSURE STATEMENT WAS NOT FILED WITH THE SECURITIES

AND EXCHANGE COMMISSION OR ANY STATE AUTHORITY AND NEITHER THE

SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE AUTHORITY HAS

PASSED UPON THE ACCURACY OR ADEQUACY OF THIS DISCLOSURE STATEMENT

 c

Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 100 of 171
OR UPON THE MERITS OF THE PLAN. NEITHER THIS DISCLOSURE STATEMENT

NOR THE SOLICITATION OF VOTES TO ACCEPT OR REJECT THE PLAN

CONSTITUTES AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY

SECURITIES IN ANY STATE OR JURISDICTION IN WHICH SUCH OFFER OR

SOLICITATION IS NOT AUTHORIZED.

THIS DISCLOSURE STATEMENT MAY CONTAIN “FORWARD LOOKING

STATEMENTS” WITHIN THE MEANING OF THE PRIVATE SECURITIES LITIGATION

REFORM ACT OF 1995. SUCH STATEMENTS CONSIST OF ANY STATEMENT OTHER

THAN A RECITATION OF HISTORICAL FACT AND CAN BE IDENTIFIED BY THE USE

OF FORWARD-LOOKING TERMINOLOGY SUCH AS “MAY,” “EXPECT,”

“ANTICIPATE,” “ESTIMATE” OR “CONTINUE” OR THE NEGATIVE THEREOF OR

OTHER VARIATIONS THEREON OR COMPARABLE TERMINOLOGY. THE READER IS

CAUTIONED THAT ALL FORWARD-LOOKING STATEMENTS ARE NECESSARILY

SPECULATIVE AND THERE ARE CERTAIN RISKS AND UNCERTAINTIES THAT

COULD CAUSE ACTUAL EVENTS OR RESULTS TO DIFFER MATERIALLY FROM

THOSE REFERRED TO IN SUCH FORWARD-LOOKING STATEMENTS.

THE DEBTOR BELIEVES THAT THE PLAN PROVIDES THE BEST POSSIBLE

RESULT FOR ALL HOLDERS OF CLAIMS AND EQUITY INTERESTS. THE

DEBTOR ALSO BELIEVES THAT THE PLAN WILL ENABLE THE DEBTOR TO

ACCOMPLISH THE OBJECTIVES OF AN ORDERLY LIQUIDATION UNDER

CHAPTER 11 AND THAT ACCEPTANCE OF THE PLAN IS IN THE BEST

INTERESTS OF THE DEBTOR AND ITS CREDITORS. THUS, IT IS THE OPINION

OF THE DEBTOR THAT THE TREATMENT OF CREDITORS AND EQUITY

INTERESTS UNDER THE PLAN CONTEMPLATE A GREATER RECOVERY THAN

THAT WHICH IS LIKELY TO BE ACHIEVED CONVERSION OF THE CHAPTER 11

CASE TO ONE UNDER CHAPTER 7 OF THE BANKRUPTCY CODE.

IF YOU ARE ENTITLED TO VOTE TO APPROVE THE PLAN, YOU ARE

RECEIVING A BALLOT WITH YOUR NOTICE OF THIS DISCLOSURE

STATEMENT. THE DEBTOR STRONGLY URGES CREDITORS TO VOTE TO

ACCEPT THE PLAN.

 d

Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 101 of 171
TABLE OF CONTENTS

ARTICLE I

INTRODUCTION AND OVERVIEW 1

1.01 General Terms of the Amended Plan 1

1.02 Overview of Chapter 11 and the Plan Confirmation Process 2

1.03 Summary of Voting Requirements for Plan Confirmation 3

(a) In General 3

(b) Impaired Classes Entitled to Vote 34

(c) Unimpaired Classes Deemed to Accept the Plan 4

(d) Voting Deadline 4

(e) Voting Instructions 4

(f) Ballots 4

(g) Additional Information 4

ARTICLE II

THE DEBTOR’S CORPORATE HISTORY 5

2.01 The Debtor’s Corporate Structure 5

2.02 The Debtor’s Business Operations 6

2.03 The Debtor’s Capital Structure 7

(a) The Land 7

(b) Debt Structure 8

(c) Short Term Cash Financing 8

2.04 Events Leading Up to the Chapter 11 Bankruptcy Case 8

(a) The COVID-19 Pandemic 8

(b) Pre-Bankruptcy Restructuring Efforts 9

2.05 The Bankruptcy Case 9

(a) Claims Asserted Against Debtor 10

(b) The QR Triptych Litigation 11

(c) The Debtor’s Miscellaneous Assets 12

(d) The LV Settlement Agreement 12

(e) The Sale Motion and Approved Bidding Procedures 13

ARTICLE III

SUMMARY OF THE PLAN 17

3.01 Summary 17

3.02 Provisions for Treatment of Unclassified Claims 17

(a) Administrative Claims 17

 1

Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 102 of 171
(b) Professional Fee Claims 1718

(c) Priority Tax Claims 18

(d) Statutory Fees 18

(e) Summary of Treatment of Claims, Equity Interests and Estimated Recoveries. 1819

(f) Classification of Claims and Equity Interests Under the Plan 22

ARTICLE IV

MEANS OF IMPLEMENTING THE AMENDED PLAN 22

4.01 The Debtor will Sell the Property 22

4.02 The Liquidating Trust 22

(a) Execution and Implementation 23

(b) Liquidating Trust Assets 23

(c) Liquidating Trustee 23

(d) Powers of the Liquidating Trustee 2324

(e) Corporate Action 2526

(f) Costs and Expenses 2526

(g) Compensation of the Liquidating Trustee 2526

(h) Retention of Professionals 2526

(i) Tax Consequences of Liquidating Trust 2526

(j) Duration 2627

(k) Indemnification 2627

(l) Bond 2728

(m) Resignation, Death or Removal 2728

(n) Transfer of Assets Free and Clear of all Liens, Claims and Encumbrances 2829

ARTICLE V

PRESERVATION OF CAUSES OF ACTION 2829

5.01 Transfer of Causes of Action 2829

5.02 No Release of Any Claim or Causes of Action 2829

5.03 Summary and Disclosure of Causes of Action 2930

5.04 Summary and Disclosure of Causes of Action 3132

ARTICLE VI

PROVISIONS GOVERNING DISTRIBUTIONS 3132

6.01 Manner of Cash Payments Under the Amended Plan 3132

6.02 Entity Making Distribution 3132

6.03 Distribution Dates 3233

6.04 Record Date for Distributions 3233

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6.05 Delivery of Distributions 3233

6.07 Compliance with Tax Requirements 3334

6.08 No Payments of Fractional Dollars 3334

6.09 Interests on Claims 3435

6.10 No Distribution in Excess of Allowed Amount of Claims 3435

6.11 Setoff and Recoupment 3435

6.12 De Minimis Distributions; Charitable Donations 3435

6.13 Withholding of Distributions 3536

6.14 Distributions in Satisfaction; Allocation 3536

6.15 No Distributions on Late-Filed Claims 3536

ARTICLE VII

DISPUTED CLAIMS 36

7.01 Resolution of Disputed Claims 36

7.02 Objection Deadline 3637

7.03 Estimation of Claims 3637

7.04 No Distributions Pending Allowance 3637

ARTICLE VIII

TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES 3738

8.01 General Treatment: Rejected if not Previously Assumed 3738

8.02 Bar to Claims Arising from Rejection, Termination or Expiration 3738

8.03 Rejection of Executory Contracts and Unexpired Leases 38

8.04 Modifications, Amendments, Supplements, Restatements, or Other Agreements. 3839

8.05 Proof of Claim Based on Assumed Executory Contracts or Unexpired Leases 3839

8.06 Cure of Defaults for Assumed Executory Contracts and Unexpired Leases 3839

8.07 Effect of Confirmation Order 3839

8.08 Indemnification and Reimbursement 39

ARTICLE IX

CONDITIONS PRECEDENT TO THE EFFECTIVE DATE 3940

9.01 Conditions Precedent 3940

9.02 Waiver 3940

ARTICLE X

EFFECT OF CONFIRMATION; INDEMNIFICATION,

INJUNCTIVE AND RELATED PROVISIONS 4041

10.01 Compromise and Settlement 4041

10.02 Binding Effect 4041

10.03 Discharge of Claims 4041

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10.04 Discharge of Debtor 4041

10.05 Exculpation 4142

10.06 Limitations on Exculpation 4142

10.07 Injunction 4142

10.08 Release of Liens 4243

ARTICLE XI

RETENTION OF JURISDICTION 4243

ARTICLE XII

RISK FACTORS IN CONNECTION WITH THE AMENDED PLAN 4445

12.01 Business Risk 4445

12.02 Bankruptcy Risk 4445

12.03 Failure to Close on Sale of Property 4446

12.04 Rejection of Amended Plan 4546

12.05 No Duty to Update Disclosures 4546

12.06 Representations Outside the Disclosure Statement 4546

12.07 Tax and Other Related Considerations 4547

ARTICLE XIII

MISCELLANEOUS PROVISIONS 4647

13.01 Modification of Amended Plan 4647

13.02 Revocation of Amended Plan 4647

13.03 Binding Effect 4647

13.04 Successors and Assigns 4648

13.05 Governing Law 4648

13.06 Reservation of Rights 4748

13.07 Section 1125(e) Good Faith Compliance 4748

13.08 Further Assurances 4748

13.09 Service of Documents 4749

13.10 Filing of Additional Documents 4849

13.11 No Stay of Confirmation Order 4849

13.12 Automatic Stay 4849

ARTICLE XIV

CONFIRMATION REQUIREMENTS 4850

14.01 Standard to Confirm a Plan 4850

(a) Best Interest Test 4950

(b) Liquidation Analysis 4950

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(c) Feasibility 5052

(d) Acceptance by Impaired Class 5052

ARTICLE XV

ALTERNATIVES TO THE PLAN 5253

15.01 Liquidation Pursuant to Chapter 7 of the Bankruptcy Code 5253

15.02 Alternative Plan of Reorganization 5253

15.03 Dismissal of the Chapter 11 Case 5254

ARTICLE XVI

CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE PLAN 5354

ARTICLE XVII CONCLUSION 5556

EXHIBITS

EXHIBIT A Liquidating Analysis

THE DEBTOR HEREBY ADOPTS AND INCORPORATES EACH EXHIBIT ATTACHED TO

THIS DISCLOSURE STATEMENT BY REFERENCE AS THOUGH FULLY SET FORTH

HEREIN.

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ARTICLE I

INTRODUCTION AND OVERVIEW

1.01 General Terms of the Plan

Aventura Hotel Properties, LLC (the “Debtor”) proposes a First Amended Chapter 11

Plan of Liquidation (and including all Plan Documents and other attachments hereto, as any of

the same may be amended from time to time, all of which are incorporated herein by reference

and are a part of, the “Plan”) dated as of August 11,16, 2021.

The Amended Plan is subject to the Debtor successfully consummating a sale of its

principal asset, an acre of land in Miami Dade County, Florida. In order for the Debtor to

successfully confirm the Amended Plan and comply with its present obligations to senior

lender LV Midtown, it must sell the property for at least $22 million. If the Debtor is

unable close on such a transaction, or otherwise renegotiate the terms of its agreement with

LV Midtown set forth in the LV Settlement Agreement (as defined below) or otherwise, the

Debtor may instead elect to seek dismissal or conversion of its bankruptcy case pursuant to

Section 1112 of the Bankruptcy Code. 

This Disclosure Statement and the other documents described herein are being furnished

by the Debtor to Creditors in the Debtor’s Chapter 11 Case pending before the Bankruptcy

Court. This Disclosure Statement is intended to provide adequate information of a kind, and in

sufficient detail, to enable the Debtor’s Creditors to make an informed judgment about the Plan,

including whether to accept or reject such Plan. This Disclosure Statement sets forth certain

information regarding: (i) the Debtor’s prepetition operating and financial history; (ii) the

Debtor’s need to file for relief under chapter 11 of the Bankruptcy Code; (iii) significant events

that have occurred during the Debtor’s Chapter 11 Case; (iv) the terms of the Plan; (v) the

manner in which distributions will be made under the Plan; (vi) certain effects of confirmation of

the Plan; (vii) certain risk factors associated with the Plan; and (viii) the confirmation process

and the voting procedures that holders of Claims and Equity Interests entitled to vote under the

Plan must follow for their votes to be counted.

This Disclosure Statement is subject to the Bankruptcy Court’s approval, as containing

information of a kind, and in sufficient detail, adequate to enable a hypothetical, reasonable

investor typical of each of the Classes whose votes are being solicited to make an informed

judgment with respect to the Plan. THE BANKRUPTCY COURT’S APPROVAL OF THIS

DISCLOSURE STATEMENT DOES NOT CONSTITUTE A DETERMINATION WITH

RESPECT TO THE MERITS OF THE PLAN. ALL CREDITORS ARE ENCOURAGED

TO READ THIS DISCLOSURE STATEMENT AND ITS EXHIBITS CAREFULLY AND

IN THEIR ENTIRETY BEFORE DECIDING TO VOTE TO ACCEPT OR REJECT THE

PLAN.

The summary of the Plan provided herein is qualified in its entirety by reference to the

Plan. To the extent that the information provided in this Disclosure Statement and the Plan

(including any Plan Supplements) conflict, the terms of the Plan (including any Plan

Supplements) will control. Terms not otherwise specifically defined herein will have the

meanings attributed to them in the Plan. Each definition in this Disclosure Statement and in the

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Plan includes both the singular and plural. Headings are for convenience or reference and shall

not affect the meaning or interpretation of this Disclosure Statement.

On the Effective Dates of the Plan, the Debtor will transfer and vest any and all Assets of

the Estate of the Debtor into the Liquidating Trust to be created under the Plan, with such

Liquidating Trust under the direction and control of ______________________ as the

Liquidating Trustee therein. The Liquidating Trustee shall have those powers and duties set

forth in the Plan, including all of the powers and duties of a chapter 7 trustee or a chapter 11

trustee, including under Sections 704 and 1106 of the Bankruptcy Code.

The Liquidating Trust will be created solely to implement the terms of the Plan. The

primary purposes of the Liquidating Trust will be to collect and liquidate the Assets of the

Estate, pursue those claims and Causes of Action transferred to, and vested in, the Liquidating

Trust and to distribute to the Liquidating Trust Beneficiaries all proceeds from the liquidation of

the Assets of the Estate pursuant to the terms of the Plan and in accordance with Treasury

Regulation Section 301.7701-4(d). Under no circumstances shall the Liquidating Trustee have

any power to engage in any trade or business or any other activity except as specifically provided

in the Plan otherwise reasonably necessary and advisable for the orderly liquidation and

distribution of the Assets.

The Plan provides that the Liquidating Trust shall issue beneficial interests in such

Liquidating Trust to the Liquidating Trust Beneficiaries. Under the Plan, (i) the Class A

Beneficial Interests in the Liquidating Trust will be issued to the Holders of all Allowed

Unsecured Claims, and (b) the Class B Beneficial Interests in the Liquidating Trust will be

issued to the Holders of the Equity Interests in the Debtor.

The Liquidating Trustee shall make Distributions from the Liquidating Trust in

accordance with the Plan to the Liquidating Trust Beneficiaries, in each case on a Pro Rata basis

within Class A or Class B as applicable, provided that the Holders of the Class B Beneficial

Interests in the Liquidating Trust shall be subordinated in all respects to the Holders of the Class

A Beneficial Interests in each such Liquidating Trust. The Liquidating Trustee shall be deemed

to have been appointed as the representative of each Estate by the Bankruptcy Court pursuant to

section 1123(b)(3)(B) of the Bankruptcy Code.

1.02 Overview of Chapter 11 and the Amended Plan Confirmation Process

Chapter 11 of the Bankruptcy Code allows debtors to reorganize or to liquidate and wind

up their affairs for the benefit of the debtors and their creditors. Upon the commencement of a

chapter 11 case, an estate is created comprised of all the legal and equitable interests of a debtor

as of the date the petition is filed, and the current owner(s) and management typically remain in

control of the debtor as a debtor-in-possession. The debtor remains in possession of its property

without the oversight of a trustee.

Pursuant to section 362 of the Bankruptcy Code, the filing of a chapter 11 petition

imposes an automatic stay of all attempts by creditors or third-parties to collect or enforce

prepetition claims against a debtor or otherwise interfere with its property or business, unless

relief from the automatic stay is obtained from the bankruptcy court.

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The Bankruptcy Code is designed to encourage the parties-in-interest in a chapter 11 case

to negotiate the terms of a chapter 11 plan so that it may be confirmed. A chapter 11 plan is the

vehicle for satisfying or otherwise addressing the claims against and the interests in the debtor.

Confirmation of a chapter 11 plan makes it binding on the debtor and all of its creditors and the

prior obligations owed by the debtor to such parties are compromised in exchange for the

obligations specified in the plan.

After a chapter 11 plan has been filed, the holders of impaired claims against the debtor

are permitted to vote to accept or reject the plan. Before soliciting acceptances of the proposed

plan, section 1125 of the Bankruptcy Code requires the debtor to file a disclosure statement

containing adequate information of a kind, and in sufficient detail, to enable a hypothetical,

reasonable investor to make an informed judgment about the plan. This Disclosure Statement is

presented to holders of Claims against the Debtor entitled to vote under section 1125 of the

Bankruptcy Code in connection with the Debtor’s solicitation of votes on the Plan.

1.03 Summary of Voting Requirements for Amended Plan Confirmation

(a) In General

Creditors should refer only to this Disclosure Statement and the Plan and any Court

approved solicitations to determine whether to vote to accept or reject the Plan. Under the

Bankruptcy Code, only holders of Claims that are “impaired” are entitled to vote to accept or

reject the Plan. Under section 1124 of the Bankruptcy Code, a class of claims or interests is

deemed to be “impaired” under a plan unless (1) the plan leaves unaltered the legal, equitable

and contractual rights to which such claim or interest entitles the holder thereof, or (2)

notwithstanding any legal right to an accelerated payment of such claim or interest, the plan,

among other things, cures all existing defaults (other than defaults resulting from the occurrence

of events of bankruptcy) and reinstates the maturity of such claim or interest as it existed before

the default.

An impaired class of creditors votes to accept a plan if the holders of at least two-thirds

(2/3) in dollar amount, and more than one-half (1/2) in number, of those creditors that actually

cast ballots vote to accept such plan. Those classes that are not impaired are not entitled to vote

and are deemed to accept a plan. Those classes that are not entitled to a distribution and will not

retain property under a plan are deemed to reject a plan.

A class of equity interest holders is deemed to accept a plan if the holders of at least

two-thirds (2/3) in amount of those interest holders that actually cast ballots vote to accept such

plan. A class of equity interest holders is impaired, not entitled to vote, and deemed to reject the

plan if the plan treats such holders by providing that they will retain no property and receive no

distributions under the plan.

Any Claim in an Impaired Class that is subject to a pending objection or is

scheduled as unliquidated, disputed or contingent is not entitled to vote unless the holder of

such Claim has obtained an order of the Bankruptcy Court temporarily allowing the Claim

for the purpose of voting on the Plan.

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Pursuant to the Bankruptcy Code, only creditors who actually vote on the Plan will be

counted for purposes of determining whether the required number of acceptances have been

obtained for the Plan. Failure to deliver a properly completed ballot by the Voting Deadline (as

defined herein) will result in an abstention; consequently, the vote will neither be counted as an

acceptance or rejection of the Plan.

(b) Impaired Classes Entitled to Vote

The Plan contains 5 Classes. Claims in Classes 2, 3 5 and the Equity Interests in Class 5

are Impaired and therefore are entitled to vote on the Plan.

(c) Unimpaired Classes Deemed to Accept the Amended Plan

Claims in Class 1 is Unimpaired, and as such will not be solicited and will be deemed to

have accepted the Plan pursuant to Section 1126(f) of the Bankruptcy Code.

(d) Voting Deadline

If a Creditor holds a Claim or Equity Interest classified in a voting Class of Claims or

Equity Interests under the Plan, the Creditor’s acceptance or rejection of such Plan is important

and must be in writing and submitted on time. The record date for determining which Creditors

may vote on the Plan is __________ ___, 2021 (the “Voting Record Date”). The voting

deadline is __________ ___, 2021, at 4:00 p.m. (prevailing Eastern Time) (the “Voting

Deadline”).

(e) Voting Instructions

IN ORDER FOR A VOTE TO BE COUNTED, THE BALLOT MUST BE

PROPERLY COMPLETED IN ACCORDANCE WITH THE VOTING INSTRUCTIONS

ON THE BALLOT AND RETURNED TO THE CLERK OF THE COURT OF THE

UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF

FLORIDA (MIAMI DIVISION) BY THE VOTING DEADLINE AT THE ADDRESS

PRINTED ON THE BALLOT.

(f) Ballots

Creditors must use only the Ballot or Ballots sent to them with the notice of this

Disclosure Statement. If a Creditor has multiple Claims that it is entitled to vote, it should

receive multiple Ballots. IF A CREDITOR RECEIVES MORE THAN ONE BALLOT,

THEN THE CREDITOR SHOULD ASSUME THAT EACH BALLOT IS FOR A

SEPARATE CLAIM AND SHOULD COMPLETE AND RETURN ALL OF THEM.

(g) Additional Information

If you have any questions about (i) the procedure for voting on your Claim, (ii) the

package of materials that you have received, (iii) the amount of your Claim, (iv) obtaining or

replacing a Ballot, or (v) obtaining an additional copy of the Plan, this Disclosure Statement, or

any exhibits to such documents, please contact the Debtor’s counsel, Genovese Joblove &

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Battista, P.A., 100 S.E. Second Street, 44th Floor, Miami, FL 33131, Attn: Jesus M. Suarez,

telephone: (305) 349-2300, email: jsuarez@gjb-law.com.

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ARTICLE II

THE DEBTOR’S CORPORATE HISTORY

2.01 The Debtor’s Corporate Structure

The Debtor is a Florida limited liability company organized on January 9, 2013 and later

utilized to acquire, develop, construct and operate a mixed-use project located in the hub of the

city’s three most dynamic and creative new neighborhoods: Miami Design District, Wynwood

Art District, and Midtown/Edgewater Corridor (the “Triptych Project”). In July 2014, the

Debtor acquired the land at 3601 N. Miami Avenue, Miami, Florida 331272 (the “Land”) for

purposes of developing the Triptych Project.

Figure 1: Rendering of Triptych Project

The Triptych Debtor is an entity that holds 100% of the membership interests of the

Debtor. The Debtor and the Triptych Debtor are headquartered at the offices of HES Group,

located at 1001 SW 2nd Avenue, Suite 300, Miami, Florida 33126.

2 The subject real estate is a 0.99-acre, high density, mixed-use zoned site located at 3601, 3610, 3630, 

3651, and 3701 North Miami Avenue in Miami-Dade County, Florida. A total of nine parcels were 

purchased by the Debtor totaling 44,783 square feet and identified as follows: Folio numbers 

01-3124-026-0010; 01-3124-026-0050; 01-3124-026-0060; 01-3124- 026-0070; 01-3124-026-0150; 

01-3124-026-0160; 01-3124-026-0170; 01-3124-026-0030; 01-3124-026-0040.

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2.02 The Debtor’s Business Operations

On July 10, 2014, the Debtor acquired the Land with the proceeds of a $7.5 million

acquisition loan from Midtown Land 8, LLC (“Kresher Loan”).

In 2015, the Debtor obtained a Conditional Approval Resolution by the City of Miami

Urban Development Review Board for the Triptych Project. Thereafter, the Debtor obtained an

appraisal from CBRE that valued the Land “as is” at $27,500,000.

In 2016, the Debtor entered into a Franchise Agreement with Hilton Worldwide for the

branding and management of a 297-room Triptych Curio Collection by Hilton Hotel (the “Hilton

Curio Concept”). The Debtor invested approximately $5 million to develop the Hilton Curio

Concept, which included obtaining architectural and engineering designs from the world-class

Miami-based firm of Bermello, Ajamil & Associates and interior design services from Wilson &

Associates. That same year, the Debtor engaged OHL Construction and entered into a LOI

authorizing it to commence pre-construction work for the Triptych Project.

In 2017, the Debtor obtained an appraisal from Landauer Valuation & Advisory that

valued the Land “as is” at $33,800,000. Later that year, the Debtor considered repositioning the

Triptych Project to be smaller in scope, but ultimately decided against it. In November 2017, the

Debtor refinanced the Kresher Loan with a $9.5 million loan from 21 Brands, S.A. in exchange

for a first priority mortgage against the Land (the “21 Brands Loan”).

In 2018, the Debtor received an appraisal from CBRE that valued the Land “as is” at $40

million. On July 31, 2018, the Debtor entered into a $15 million first mortgage loan with LV

Midtown, LLC (“LV Midtown”) that was used, in part, to refinance the 21 Brands Loan. At the

same time, the Debtor granted an $8.2 million subordinated mortgage in favor of QR Triptych,

LLC (“QR Triptych”) and paid it $3 million from the loan proceeds received from LV Midtown.

On October 31, 2019, the Debtor executed a Term Sheet with Hyatt Franchise

Corporation to develop and manage a Joie De Vivre by Hyatt Hotel (the “Joire de Vivre

Concept”). In December 2019, the Debtor received an appraisal from CBRE that valued the

Land “as is” at $42 million.

The Triptych Project was expected to break ground in October 2020 and be completed by

October 2023. However, the timeline was impacted by the COVID-19 pandemic that brought

the world to a standstill and brought unprecedented delays and obstacles that frustrated the

Debtor’s ability to obtain additional capital and construction financing to move forward with the

development of the Triptych Project.

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2.03 The Debtor’s Capital Structure

(a) The Land

The Debtor owns the land in fee simple.

Figure 2: Triptych Project Site

Figure 3: Triptych Project Site Detail

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(b) Debt Structure

On July 31 2018, four years after the Debtor acquired the Land, it entered into a loan

transaction with LV Midtown (an affiliate of Linkvest Capital Group (“Linkvest”)).

The Loan Transaction provided for LV Midtown to make a loan to the Debtor in the

principal amount of $15,000,000 secured by, among other things, a first priority mortgage

against the Land (the “Linkvest Loan”). The Linkvest Loan is also secured by a pledge by the

Triptych Debtor of all of the membership interests in the Debtor, subject to the terms of a Pledge

and Security Agreement dated July 31, 2018 (the “Pledge Agreement”).

In connection with the Loan Transaction, the Debtor also executed a Redemption

Agreement with QR Triptych (the “Redemption Agreement”) that provided QR Triptych’s

interests in the Triptych Debtor to be redeemed in exchange for (i) payment of $3 million from

the proceeds of the Linkvest Loan; and (ii) the Debtor executing a promissory note in the

original principal amount of $8,238,579 (the “QR Note”). The QR Note is secured by a second

priority mortgage against the Land and is subject of a Subordination and Intercreditor Agreement

executed between LV Midtown and QR Triptych. The Debtor and Triptych Debtor have sued to

avoid QR Triptych’s mortgage and the QR Note, to avoid over $5.2 million in transfers from the

Debtor to QR Triptych and to an entity controlled by its principal and to re-characterize QR

Triptych’s claim against the Debtor as subordinated equity in the Triptych Debtor. See §2.05(b),

infra.

(c) Short Term Cash Financing

The Debtor’s short-term cash needs have been typically financed through interest-free

advances from HES Group companies. In certain instances, HES Group companies advanced

expenses on the Debtor’s behalf. The Debtor, in turn, repaid the advances as circumstances

permitted. In total, HES Group companies claim to have advanced net cash of over $3 million

which remains unpaid.

2.04 Events Leading Up to the Chapter 11 Bankruptcy Case

(a) The COVID-19 Pandemic

Beginning in or about December 2019, an international pandemic of unprecedented scale

spread across the globe, where inhabitants of all nations were affected by the virus referred to as

the coronavirus disease 2019 (“COVID-19”). On March 11, 2020, the World Health

Organization announced that the COVID-19 outbreak was properly characterized as a pandemic.

. The COVID-19 pandemic resulted in global shutdowns and caused economic and commercial

disruptions in various sectors, including a heavy impact on the real estate and hospitality

markets. The COVID-19 pandemic and the related restrictions on travel, business activity, and

individual movement have had a significant impact on the hospitality industry.

Pandemic induced lockdowns, event cancellations, and stoppage of corporate travel

affected the hospitality industry across the board. The Smith Travel Research (“STR”) data

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reflects that beginning in March 2020, occupancies began to plummet and by late March, the

U.S. hotel industry had effectively come to a halt. According to an STR3 report, in a

year-over-year comparison with April 2019, the industry recorded a nearly 64% drop in hotel

occupancy and a 79.9% drop in RevPAR4. According to another report by Skift Research and

McKinsey & Company, “hotel demand may not reach pre-COVID-19 levels until 2023, while

revenue per available room may not recover until 2024.”

Throughout 2020, there continued to be extraordinary uncertainty; the crisis and ensuing

emergency orders severely impaired the value and progress of the Triptych Project. One example

of the pandemic’s impact on the project was the standstill effect it had on the Debtor’s

negotiations with a national hotel chain. Due to the COVID-19 pandemic, the deadline to

execute certain franchise documents was extended until December 31, 2020, effectively putting

Triptych Project, and related negotiations with the national hotel chain, on hold.

(b) Pre-Bankruptcy Restructuring Efforts

In August 2020, LV Midtown initiated a foreclosure proceeding captioned LV Midtown

LLC v. Aventura Hotel Properties, LLC et al., Case No. 2020-018857-CA-01, pending in the

Eleventh Judicial Circuit in and for Miami-Dade, Florida (the “Foreclosure Case”). Throughout

the Foreclosure Case, the Debtors attempted to negotiate an appropriate resolution of the

Linkvest Loan that accounts for, among other things, the significant equity in the Land and the

various alternatives.

Based on the above unprecedented circumstances and disputes with Linkvest, among

other things, the Debtors determined that the filing of a Chapter 11 bankruptcy was in the best

interests of the Triptych Project and all of its stakeholders. The Debtor anticipated using the

Chapter 11 process to provide the necessary breathing room needed to weather the economic

storm caused by the Coronavirus pandemic, to recapitalize and continue development of the

Triptych Project, and if necessary, facilitate a sales process for the Land that maximizes the

return to all of its stakeholders.

2.05 The Bankruptcy Case

On March 12, 2021 (the “Petition Date”), the Debtors filed voluntary petitions in this

Court for relief under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”)

and, as a result, the Foreclosure Case has been stayed since the Petition Date by operation of

section 362 of the Bankruptcy Code.

On March 15, 2021, the Court granted the Debtors’ Ex-Parte Motion for Joint

Administration [ECF No. 11], providing for the designation of Case No. 21-12374-BKC-RAM

as the “Lead Case.” To date, a creditors’ committee, trustee or examiner has not been appointed

3 Founded in 1985, STR provides premium data benchmarking, analytics and marketplace insights for 

global hospitality sectors. STR was acquired in October 2019 as a division of CoStar Group, Inc., the 

leading provider of commercial real estate information, analytics and online marketplaces.

4 Revenue per available room (RevPAR) is a metric used in the hospitality industry to measure hotel performance. 

The measurement is calculated by multiplying a hotel’s average daily room rate by its occupancy rate. RevPAR is 

also calculated by dividing a hotel’s total room revenue by the total number of available rooms in the period being 

measured.

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in this case. The Debtors are operating and managing the business and affairs of their respective

bankruptcy estates (the “Estates”) as debtors-in-possession pursuant to sections 1107(a) and

1108 of the Bankruptcy Code.

On April 15, 2021, the Court entered a final Order Granting the Application to Employ

Jesus M. Suarez and the Law Firm of Genovese Joblove & Battista, P.A. as Counsel for the

Debtors-in-Possession [ECF No. 34].

(a) Claims Asserted Against Debtor

The Debtor’s bankruptcy schedules reflect general unsecured claims in the amount of

$1,110,273.90, of which the Debtor scheduled $295,242 as disputed as of the Petition Date. The

Debtor’s general unsecured creditors are largely trade and professional creditors that remain

unpaid and arise from the development of the Project.

On April 1, 2021, the Miami-Dade County Tax Collector filed Claim No. 1-1 in the

amount of $427,287.44 plus statutory interest accruing at 18% (the “MDCTC Claim”). The

MDCTC Claim represents real estate property taxes past due on the Land and payable to

Miami-Dade County for tax years 2020 and estimated tax liability for 2021 (final tax bills will be

available on November 1, 2021).

On April 1, 2021, the Miami Dade Tax Collector also gave notice of additional creditors

holding tax certificates for tax year 2019 [ECF No. 28] (the “2019 Real Estate Taxes”). The

2019 Real Estate Taxes are secured by a lien on the Land and are $219,890.50 plus interest.

On May 19, 2021, Secured Creditor LV Midtown, LLC (“LV Midtown” or “Secured

Creditor”) filed a secured claim, Claim No. 5-1, in an amount not less than $18,944,582.14, plus

accrued interest, attorneys’ fees and costs as of the Petition Date (the “Secured Claim”) in the

Bankruptcy Case.

On May 19, 2021, QR Triptych, LLC (“QR Triptych”) filed Claim No. 6-1 [Debtor AHP]

(the “QR Claim”). The QR Claim asserts a claim against the Debtor in the amount of

$8,238,579.20, and purports to be secured by a subordinate mortgage on the Property. However,

the QR Claim does not contain evidence of the Debtor’s alleged indebtedness to QR Triptych

and instead relies upon a promissory note evidencing only indebtedness to LV Midtown.

On July 22, 2021, QR Triptych amended the QR Claim [Claim No. 6-2] to assert a claim

for $10,597.809.81, providing for what they claim to be past-due interest and attorneys’ fees (the

“QR Amended Claim”). The QR Amended Claim includes an alleged promissory note

purportedly executed on behalf of the Debtor that had not been included in the initial QR Claim.

The Debtor objected to the QR Claim (as may be amended) in the Avoidance Litigation (defined

below).

On May 19, 2021, Elisabeth Eljuri [Claim No. 3-1] and Ivan Sandrea [Claim No. 4-1]

filed general unsecured claims against the Debtor in the amounts of $2,170,291 (“Eljuri Claim”)

and $1,479,005.91 (the “Sandrea Claim”). The Eljuri Claim and Sandrea Claim represent

general unsecured creditors that (i) advanced cash into the bank account of the Debtor for the

Project; or (ii) paid expenses on directly on behalf of the Project; or (iii) otherwise conferred a

11

Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 117 of 171
benefit for the Project. The Eljuri Claim and Sandrea Claim remain subject to further review and

potential objection in whole or in part.

On July 26, 2021, OHL Building, Inc. filed a claim against the Debtor in the amount of

$290,892 (the “OHL Claim”). The OHL Claim arises from a complaint that it filed prior to the

Petition Date against the Debtor HES Group Holding, LLC in the Eleventh Judicial Circuit in

and for Miami Dade County, Florida (Case No. 2020-022171-CA-01). The OHL Claim remains

subject to objection, but was deemed timely filed by the Bankruptcy Court [ECF No 104].

(b) The QR Triptych Litigation

On June 15, 2021, the Debtors commenced an adversary proceeding against QR Triptych

and JQ Real Estate, LLC. See Adv. Case No. 21-12374-RAM (the “Avoidance Litigation”).

The Debtor and the Triptych Debtor Avoidance Litigation to avoid certain inequitable

transactions made for the benefit of QR Triptych - a former equity investor in the Triptych

Debtor– that were paid from the assets of the Debtor. In summary, the Debtor and the Triptych

Debtor seek to avoid (i) $2.2 million transferred by the Debtor to Defendant JQRE (an entity

related to QR Triptych and to which the Debtors were not indebted); (ii) $3 million transferred

by the Debtor to Defendant QR Triptych on account of its equity in the Triptych Debtor; and (iii)

the incurrence by the Debtor of an $8.2 million subordinated mortgage in favor of Defendant QR

Triptych in exchange for nothing of value to the Debtor. The Debtors also objected to QR

Triptych’s filed proof of claim and seek mandatory and equitable subordination.

On July 16, 2021, the Defendants in the Avoidance Litigation filed an Answer [Adv.

Case ECF No. 8].

On August 6, 2021, the Debtor and Triptych Debtor filed a Motion to Strike the

Adversary Defendants’ Affirmative Defenses [Adv. Case ECF No. 10]. The Debtor believes the

Adversary Defendants have failed to raise legally sufficient affirmative defenses.

Notwithstanding, the Defendants may have the opportunity to replead their defenses and to

challenge elements of the Debtor’s prima facia case. In either respect, the Debtor anticipates

that the Adversary Defendants will vigorously defend the claims and will raise litigable issues.

For example. the Defendants claim, among other things, the Debtor and Triptych Debtor were

alter-ego’s of each other and that by allegedly providing value to one entity they are relieved of

an obligation to provide value to the other entity. The Defendants also allege unspecified

wrongdoing by the Debtors’ Officers and Directors which they claim impairs the ability of the

Debtor to prevail in its claims against them.

The Debtor disputes the defenses raised by the Defendants in the Avoidance Litigation

and expects to prevail in prosecuting their claims within a reasonable degree of certainty.

Nonetheless, all litigation claims are uncertain, costly to prosecute and subject to risk.

Additionally, the Debtor is not aware of the financial condition of the Defendants and cannot

presently ascertain whether any affirmative recoveries against these Defendants are ultimately

collectible. Notwithstanding, the Debtors believe that many of the issues raised in the

Avoidance Litigation are not novel, and are capable of being adjudicated by the Bankruptcy

Court within three to six months.

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 118 of 171
(c) The Debtor’s Miscellaneous Assets

The Debtor’s schedules reflect (i) accounts receivable in the amount of $704,610.00; (ii)

miscellaneous office furnishings of unknown value; and (iii) de minimis cash balances in its

Debtor-in-Possession account at City National Bank of Florida. Additionally, the Debtor may

hold litigation claims against (i) recipients of otherwise avoidable transfers; (ii) its current and

officers and directors; (iii) vendors; (iv) suppliers; and (v) other third parties.

(d) The LV Settlement Agreement

On June 16, 2021, the Court approved a settlement between the Debtors and the Secured

Creditor [ECF No. 85] (the “LV Settlement”)5

 that provides, among other things for:

(a) The allowance of Secured Creditor’s Secured Claim in the amount of

$20,468,837.91 as of September 15, 2021 (the “Payoff Amount”).

(b) Notwithstanding the stipulated Indebtedness and Payoff Amount, the Secured

Creditor shall agree to accept a discounted lump sum amount of $19,600,000

(“Release Price”) in full and final satisfaction of the Secured Claim against the

Estates under 11 U.S.C. § 506 of the Code provided that (a) such Release Price is

indefeasibly paid to and actually received by Secured Creditor in cleared funds on

or before September 15, 2021, (b) each of the milestones identified in the LV

Settlement are completed; and (c) and the Debtors have timely complied with

each and every term of the LV Settlement.

(c) In consideration to the Estates for the compromise of alleged defenses to the

claim of the Secured Creditor and for the timely sale and/or liquidation of the

Property (as set forth in the LV Settlement), the Secured Creditor consented to a

carve-out/surcharge from the Payoff Amount in favor of the bankruptcy estate of

Debtor AHP in the amount of $800,000.00 (the “Surcharge Contribution”) solely

to the extent of available cash proceeds in excess of the Release Price, for the

benefit of the Debtors bankruptcy estates (i.e., for the payment of administrative

expenses and for distribution to general unsecured creditors). Further, Secured

Creditor agreed to a reduction of the Payoff Amount by $68,837.91 (the

“Settlement Reduction”), which Settlement Reduction is reflected in the Release

Price and Secured Creditor waived any right to assert such amount against the

Estates or against any third party (subject to the terms of the LV Settlement).

Further, the Release Price was determined to be the full amount of Secured Creditor’s

credit bid under 11 U.S.C. § 363(k) or otherwise (the “Credit Bid”) with respect to any sale

process in respect of the Property that complies with the LV Settlement and that actually closes

on or before September 15, 2021.

5

 Please refer the Debtors’ Expedited Motion to Approve Settlement and Compromise with LV Midtown, 

LLC [ECF No. 55] and the Order Approving the LV Settlement [ECF No. 85] for a complete 

description of the LV Settlement. 

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 119 of 171
(e) The Sale Motion and Approved Bidding Procedures

The Debtor scrutinized proposals from leading international brokerages to facilitate the

marketing and sale of the Property. On April 26, 2021, the Debtors reached an agreement to

broker the sale of the Property John Crotty and Avison Young-Florida, LLC (“Avison Young”).

On June 1, 2021, the Court granted the Debtors’ Motion to Employ Avison Young and

approved the Exclusive Sales Listing Agreement with the Avison Young (the “Listing

Agreement”) [ECF No. 53].

Pursuant to the terms of the Listing Agreement, Avison Young assisted the Debtors in

marketing and selling the Triptych Project by: (i) preparing a marketing program; (ii) preparing

descriptive marketing materials; (iii) providing advice and assistance in structuring the offering

price and sales terms; (iv) exercising reasonable efforts to procure a buyer for the Triptych

Project; (v) negotiating, in coordination with Debtors’ representatives, the terms and conditions

of the sale of the Triptych Project; and (v) distributing marketing information on the Triptych

Project to co-brokers.

The Listing Agreement provides for Avison Young to receive a brokerage fee in the

amount of 150 basis points (1.50%) of the gross sales price of the Triptych Project (collectively,

the “Commission”). In order to facilitate lender approval, Avison Young agreed to waive any

commission due or cost advanced by it under the Listing Agreement if the purchase price did not

exceed the Release Price.

Upon its retention, Avison Young developed a sales and marketing process and made a

call for interested buyers to submit offers on or before June 24, 2021. In the course of the sales

process, Avison Young contacted and marketed the property to over 14,000 hospitality investors,

6,300 potential investors through the Real Clear Markets platform, 2,100 developers, and 1,110

outside brokers. The marketing efforts resulted in over 3,200 CoStar listing page visits and the

execution of 59 confidentiality agreements by potential buyers.

After the expiration of the call for offers, the Debtors analyzed all offers received for the

purchase of the Property. In consultation with Avison Young and counsel, the Debtors exercised

their business judgment to advance negotiations for the sale of the Property to Integra.

On July 15, 2021, the Debtor and Integra Real Estate, LLC (“Integra”) entered into the

Contract for the “As Is” Sale and Purchase of Vacant Land, pursuant to the terms set forth

therein (the “Contract”) and attached as Exhibit “A” to the Sale Motion (defined below).

Pursuant to the Contract, Integra’s deadline to complete all due diligence with respect to

purchase of Property is Saturday, August 14, 2021 (the “Due Diligence Deadline”).

On July 15, 2021, the Debtors filed a Motion for Entry of an Order (A) Authorizing the

Sale of Real Property of the Chapter 11 Estate Free and Clear of Liens, Claims and

Encumbrances Pursuant to 11 U.S.C. §363; (B) Establishing Bidding Procedures and Sale

Process; (C) Approving Asset Purchase Agreement with Integra Real Estate, LLC; (D)

Scheduling Sale Hearing; and (E) Granting Related Relief [ECF No. 94] (the “Sale Motion”).

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 120 of 171
On July 29, 2021, the Court granted the Sale Motion, Approved the Contract with Integra

(the “Sale ProceduresApproval Order”) and made the following findings:

a. The Court has jurisdiction over this matter and over the property of the Debtors

pursuant to 28 U.S.C. §§ 157(a) and 1334, venue is proper in this district

pursuant to 28 U.S.C. § 1408, and this is a core proceeding pursuant to 28 U.S.C.

§ 157(b).

b. Good and sufficient notice of the relief sought in the Motion has beenwas given

in accordance with Bankruptcy Rule 2002, and no other or further notice is or

shall bewas required and any requirements for other or further notice shall

bewere waived and dispensed with pursuant to Fed. R. Bankr. P. 2002, 6004,

6006 and 9007 and pursuant to the Court’s powers under section 105 of the

Bankruptcy Code. A reasonable opportunity to object or be heard regarding the

relief requested in the Motion haswas been afforded to all parties-in-interest.

c. The bidding procedures set forth hereinin the Sale Approval Order are fair,

reasonable and appropriate, and are designed to maximize the recovery on the

proposed sale of the Property.

d. The entry of thisthe Sale Approval Order is was in the best interests of the

Debtor, its estate, creditors, and all other parties-in-interest.

The Court also scheduled a sale hearing to approve the sale of the Property pursuant to 11

U.S.C. § 363 of the Bankruptcy Code (the “Sale Hearing”) on Wednesday, August 25, 2021 at

11:00 am EDT, before the Honorable Robert A. Mark, by Zoom Video Conference. An Auction

(as defined herein below) with respect to sale of the Property, if necessary, shall be conducted

before the Honorable Robert A. Mark, by Zoom Video Conference at the Sale Hearing on

Wednesday, August 25, 2021 at 11:00 a.m. EDT in accordance with the bidding procedures

approved by the Bankruptcy Court,

The Sale Procedures Order provides for bidding procedures as set forth below and

authorizes and directs the Debtors to carry out the actions reasonably necessary to carry out the

bidding procedures. All competitive bidders, creditors and/or interested parties participating in

an Auction of the Properties, should it be necessary, shall comply with the following bidding

procedures:

i. competing bid(s) shall be made upon substantially similar terms and

provisions as contained in the Contract and as otherwise provided in the order(s)

of the Bankruptcy Court approving the Motion and Bidding Procedures as set

forth herein, provided however, that such competing bids shall not contain a Due

Diligence Period and must be subject to and not otherwise provide for the

impairment of the Parking Rights Agreement between Debtor and Fifteen

Midtown Properties, LLC (“Competing Bid(s)”);

ii. Competing Bid(s) shall be received, in writing, by Debtor’s counsel Jesus

M. Suarez, Esq., 100 SE Second Street, 44th Floor, Miami, Florida 33301,

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 121 of 171
jsuarez@gjb-law.com, by 5:00 p.m. on August 23, 2021 (the “Bid Deadline”),

in the form of a fully executed, substantially similar version of the Contract (the

“Competing Bid Contract”), along with: (a) a refundable deposit in the amount of

five percent (5%) of the purchase price identified in the Competing Bid Contract

(the “Competing Bid Deposit”) in readily available funds delivered to the Closing

Agent (wire transfer instructions shall be provided by the Closing Agent and/or

Debtors’ counsel upon written request directed to jsuarez@gjb-law.com);

provided however, that in the event that the Competing Bid is accepted and

approved as the highest and best offer, such Competing Bid Deposit shall be

non-refundable; (b) the Competing Bid shall not be subject to any contingency

whatsoever, shall be subject to Bankruptcy Court approval, and shall be

accompanied by evidence that the prospective buyer submitting the Competing

Bid has the ability to consummate the purchase transaction and comply with all

terms thereto; and (c) information that indicates to the Debtor, in the Debtor’s

discretion, and subject to Bankruptcy Court approval, that the prospective buyer’s

Competing Bid is submitted as a good faith, arm’s length transaction entitled to

the protections of §363(m) of the Bankruptcy Code;

iii. the Debtors, in their discretion in consultation with Secured Creditor, and

subject to Bankruptcy Court approval, shall determine whether any Competing

Bid(s) received by the Bid Deadline constitute a qualified bid with capacity to

close as provided in the respective Competing Bid Contract and may be accepted

as a qualified bid (the “Qualified Bid”). Any Competing Bid determined to be a

Qualified Bid shall be irrevocable until the selection of the Successful Bidder (as

hereinafter defined) and the Back-Up Bidder (which offer shall remain

irrevocable until the closing of the sale to the Successful Bidder or the Back-Up

Bidder);

iv. Integra shall be deemed to have submitted a Qualified Bid

provided that, at the time of the auction sale, the Due Diligence Deadline has

expired, Integra has not terminated the Contract, and Integra has otherwise

complied with its obligations thereunder. Secured Creditor LV Midtown, LLC

shall be deemed a Qualified Bidder and may submit a Qualified Bid in an amount

not to exceed their 363(k) Bid (as defined below) in the amount of the Release

Price without the necessity of otherwise complying with these Bid Procedures;

v. should the Debtors receive multiple Qualified Bids by the Bid

Deadline, the Bankruptcy Court shall conduct the Sale Hearing as a final and

absolute auction, at which time the Bankruptcy Court will determine the best and

highest offer for sale of the Property (the “Auction”). The Auction shall be

conducted via Zoom Video Conference at the Sale Hearing on Wednesday,

August 25, 2021 at 11:00 a.m EDT. Only prospective buyers that have been

determined to have submitted a Qualified Bid shall be permitted to participate in

the Auction;

vi. any prospective buyers with a Qualified Bid (the “Qualified

Bidder(s)”) shall be permitted to participate in the Auction. The minimum bidding

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 122 of 171
increments above the highest and best Qualified Bid accepted at the time of the

Auction, shall be not less than two-hundred fifty thousand dollars ($250,000.00)

(the “Bid Increment(s)”);

vii. the competitive bidding among the Qualified Bidders shall

continue until the Bankruptcy Court determines it has received the highest and/or

best bid for the Property. The prospective buyer submitting the highest and/or

best bid for the Property shall be determined to be the successor bidder

(“Successful Bidder”);

viii. the Qualified Bidder submitting the second highest and/or best

Qualified Bid accepted at the Auction, if any, shall be deemed the back-up bidder

(the “Back-Up Bidder”) and shall be obligated to close on the transaction

contemplated under the purchase Contract submitted for approval with such

Qualified Bid within seven (7) days from the tendering of written notice by the

Debtors to the Back-Up Bidder of the Successful Bidder’s failure to close and the

Competing Bid Deposit of the Back-Up Bidder shall be held by the Closing Agent

until the closing of the sale of the Property, shall be refunded pursuant to part ix

below if the Property is sold to the Successful Bidder, and shall be non-refundable

if Back-Up Bidder is called upon to close on its Qualified Bid and fails to do so;

and

ix. notwithstanding the above Bidding Procedures, in the event that

Integra or another Qualified Bidder(s) is not deemed to be the Successful Bidder

or Back-Up Bidder at the Auction, then all Deposits or Additional Deposits shall

be refunded by the Debtors or Closing Agent (collectively, the “Refundable

Deposit(s)”) to the respective party submitting the Refundable Deposit, within

five (5) business days of the Auction or upon further order of the Bankruptcy

Court, and Secured Creditor LV Midtown, LLC may exercise its Qualified Bid in

an amount not up to the amount 363(k) Bid (as defined below) and shall be the

Successful Bidder.

(collectively, the “Bidding Procedures”). Notwithstanding the above Bidding Procedures,

Secured Creditor LV Midtown, LLC shall have the right, but not the obligation, to credit bid up

to the amount of the Release Price pursuant to §363(k) of the Bankruptcy Code in connection

with the sale of the Property pursuant to this Motion (the “363(k) Bid”). Pursuant to the LV

Settlement, the 363(k) Bid is not subject to objection. In the event that Secured Creditor LV

Midtown, LLC exercises its 363(k) Bid option, such bid shall be subject to the Bidding

Procedures, except that Secured Creditor LV Midtown, LLC shall not be required to submit a

Deposit or Additional Deposit for purposes of bidding at the Auction nor shall Secured Creditor

be required to submit a Competing Bid in advance of the auction.

On August 13, 2021, Integra Real Estate, LLC (“Integra”) terminated the sales

contract in the amount of $25.5 million to purchase the Property. The Debtor does not

presently have a back-up contract to substitute Integra’s terminated Contract. The Debtor

anticipates that Qualified Bids may be received in advance of the Qualified Bid Deadline;

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 123 of 171
however the Debtor does not believe it will be able to consummate the Plan if the Successful

Bid is less than approximately $22 million. 

The Debtor currently lacks any cash to pay closing costs and other ordinary and

customary expenses due at closing, including property taxes and real estate commissions.

The Debtor may not realize the Sale Proceeds contemplated by the Plan if (i) a Competing

Bid Contract is deemed the Successful Bidder and the Purchase Price approved by the

Bankruptcy Court is less than the Purchase Price of $25,500,000 offered by Integra in the

Contract approved by the Bankruptcy Court in the Sale Approval Order [ECF No. 106]at least

$22 million; or (ii) Secured Creditor LV Midtown is deemed to be the Successful Bidder

pursuant to its 363K Bid which does not provide for a cash recovery by the Debtor; or (iii)

the Surcharge Contribution from LV Midtown’s collateral is not applied by the

Bankruptcy Court as set forth in the Plan. The Sale of the Property at or near the Purchase

Price in the Contract with Integra is necessary in order to consummate the Plan.

ARTICLE III

SUMMARY OF THE AMENDED PLAN

3.01 Summary

THE FOLLOWING IS A SUMMARY OF SOME OF THE SIGNIFICANT

ELEMENTS OF THE PLAN. THE DISCLOSURE STATEMENT IS QUALIFIED IN ITS

ENTIRETY BY REFERENCE TO THE MORE DETAILED INFORMATION SET

FORTH IN THE PLAN AND THE EXHIBITS AND SCHEDULES THERETO.

The Plan classifies Claims and Equity Interests separately in accordance with the

Bankruptcy Code and provides different treatment for different Classes of Claims and Equity

Interests. Claims and Equity Interests shall be included in a particular Class only to the extent

such Claims or Equity Interests qualify for inclusion within such Class. The Plan separates the

various Claims (other than those that do not need to be classified) into 5 separate Classes. These

Classes take into account the differing nature and priority of Claims against, and Equity Interests

in the Debtor. Unless otherwise indicated, the characteristics and amounts of the Claims or

Equity Interests in the following Classes are based on the books and records of the Debtor.

Other than as specifically provided in the Plan, the treatment under the Plan of each

Claim and Equity Interest will be in full satisfaction, settlement, release and discharge of all

Claims or Equity Interests. The Liquidating Trustee will make all payments and other

distributions to be made under the Plan unless otherwise specified.

3.02 Provisions for Treatment of Unclassified Claims

(a) Administrative Claims

Pursuant to the Plan, the Debtor shall pay each holder of an Allowed Administrative

Claim, in satisfaction of such Allowed Administrative Claim, the full unpaid amount of such

Allowed Administrative Claim in Cash: (1) on the Effective Date or as soon as practicable

thereafter (or, if not then due, when such Allowed Administrative Claim is due or as soon as

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 124 of 171
practicable thereafter); (2) if such Claim is Allowed after the Effective Date, on the date such

Claim is Allowed or as soon as practicable thereafter (or, if not then due, when such Allowed

Administrative Claim is due or as soon as practicable thereafter); (3) at such time and upon such

terms as may be agreed upon by such holder and the Debtor; or (4) at such time and upon such

terms as set forth in an order of the Bankruptcy Court; provided, however, that any Claim

seeking administrative expense status included as a part of a proof of claim filed in this Chapter

11 Case shall not qualify as an Administrative Claim. The Administrative Claims shall first be

paid from the Surcharge Contribution and/or the QR Triptych Surcharge.

(b) Professional Fee Claims

On or prior to the deadline set by the Bankruptcy Court for Professionals to file final fee

applications, each Professional shall file with the Bankruptcy Court its final fee application

seeking final approval of all fees and expenses from the Petition Date through the Confirmation

Hearing. The Debtor shall pay the Allowed Professional Fee Claim of each Professional from

Available Cash in accordance with the Orders of the Bankruptcy Court unless otherwise agreed

to by the Holder of such Allowed Professional Fee Claim. From and after the Confirmation Date

until the Effective Date, the Debtor, in the ordinary course of business and without the necessity

for any approval by the Bankruptcy Court, shall pay the reasonable fees and necessary and

documented expenses of the Professionals during such period. The Broker Fee shall be satisfied

from Sale Proceeds. Any other Professional Fees shall be paid from the Surcharge Contribution

and the QR Triptych Surcharge.

(c) Priority Tax Claims

Pursuant to the Plan, the Debtor shall pay each holder of an Allowed Priority Tax Claim,

in satisfaction of such Allowed Priority Tax Claim, the full unpaid amount of such Allowed

Priority Tax Claim in Cash, on the later of (i) the Effective Date, (ii) the date such Allowed

Priority Tax Claim becomes Allowed or as soon as practicable thereafter and (iii) the date such

Allowed Priority Tax Claim is payable under applicable non-bankruptcy law; provided,

however, that the Debtor shall not pay any premium, interest or penalty in connection with such

Allowed Priority Tax Claim.

(d) Statutory Fees

Notwithstanding any other provisions of the Plan to the contrary, the Debtor shall pay the

United States Trustee the appropriate sum required pursuant to 28 U.S.C. § 1930(a)(6), within

ten (10) days of the entry of the order confirming the Plan, for pre-confirmation periods and

simultaneously file all the Monthly Operating Reports for the relevant periods, indicating the

cash disbursements for the relevant period. The Liquidating Trustee shall further pay the United

States Trustee the appropriate sum required pursuant to 28 U.S.C. § 1930(a)(6), based upon all

post-confirmation periods within the time period set forth in 28 U.S.C. § 1930(a)(6), based upon

all post-confirmation disbursements made by the Liquidating Trustee, until the earlier of the

closing of the Chapter 11 Case by the issuance of a Final Decree by the Bankruptcy Court, or

upon the entry of an Order by the Bankruptcy Court dismissing such case or converting such

case to another chapter under the United States Bankruptcy Code, and the Liquidating Trustee

shall provide to the United States Trustee upon the payment of each post-confirmation payment,

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and concurrently filed with the Court, Post-Confirmation Quarterly Operating reports indicating

all the cash disbursements for the relevant period. The Statutory Fees shall first be paid from the

Surcharge Contribution and the QR Triptych Surcharge.

The table below provides a summary of the classification, treatment and estimated

recoveries of Claims and Equity Interests under the Plan. This information is provided in

summary form below for illustrative purposes only, is subject to material change based on

contingencies related to the claims reconciliation process, and is qualified in its entirety by

reference to the provisions of the Plan.

(e) Summary of Treatment of Claims, Equity Interests and Estimated

Recoveries.

The table below provides a summary of the classification, treatment and estimated

recoveries of Claims and Equity Interests under the Plan. This information is provided in

summary form below for illustrative purposes only, is subject to material change based on

contingencies related to the claims reconciliation process, and is qualified in its entirety by

reference to the provisions of the Plan.

THE ESTIMATED PROJECTED RECOVERIES SET FORTH IN THE TABLE

BELOW ARE ESTIMATES ONLY AND ARE THEREFORE SUBJECT TO CHANGE.

Class Treatment of Claims and Interests

Estimated

Aggregate

Claims

Estimated

Percentage

Recovery

Class 1:

Secured Real

Estate Tax

Claims

Except to the extent that a holder of an Secured Real Estate

Tax Claim has been paid by the Debtor prior to the Effective

Date or agrees to a different classification and treatment,

each holder of an Allowed Secured Real Estate Tax Claim

shall receive the full unpaid amount of such Secured Real

Estate Tax Claim in Cash, on the later of (i) the Effective

Date or as soon as practicable thereafter, (ii) the date such

Secured Real Estate Tax becomes Allowed or as soon as

practicable thereafter, and (iii) the date such Allowed Other

Priority Claim is payable under applicable non-bankruptcy

law; provided, however, that the Debtor shall not pay any

premium, interest or penalty in connection with such

Allowed Other Priority Claim. The Secured Real Estate Tax

Claim include (i) Property Taxes; and (ii) Property Tax

Certificates. To the extent Property Taxes for Tax Year

2021, the real estate taxes payable by Debtor as Seller under

the Sale Approval Order shall be escrowed for payment

when due by the closing agent designated under the Sale

Approval Order to consummate that Closing.

$646,177.92 100%

Class 2:

Allowed

Secured

Claim of LV

Midtown

The Allowed Secured Claim of LV Midtown shall be

satisfied by the holder the Allowed Secured Claim of LV

Midtown receiving from the Debtor Sale Proceeds from the

Closing of the Property up to the amount of the Release Price

as provided for in the LV Settlement Agreement net of (i)

$20,468,837.91 92.5% as

pursuant to LV

Settlement

Agreement,

providing that

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 126 of 171
Class Treatment of Claims and Interests

Estimated

Aggregate

Claims

Estimated

Percentage

Recovery

ordinary and customary closing costs; (ii) the Secured Real

Estate Tax Claims securing the Class 1 Claim; and (iii) the

Broker Fee, but only to the extent the Sale Proceeds exceed

the Release Price. The Sale Proceeds constitute, in part, the

liquidation of the collateral securing the Class 2 Claim,

which the Debtor shall liquidate at Closing pursuant to a

Confirmation Order authorizing the sale of the Property

pursuant to section 363 of the Bankruptcy Code or otherwise;

(ii) realization of the indubitable equivalent of the Class 2

Claim, including either in the form of Cash equal to the value

of such collateral pursuant to section 506(a) of the

Bankruptcy Code and/or the return of the collateral securing

such Claim in accordance with 11 U.S.C. §

1129(b)(2)(A)(iii); or (iii) satisfaction of such Class 2 Claim

as otherwise authorized by the Code or agreed to by the

holder of such Class 2 Claim. Such satisfaction shall occur

on the later of the Effective Date or the date each respective

Class 2 Secured Claim of LV Midtown is Allowed by a Final

Order. Any portion of the Allowed Claim of a holder of a

Class 2 Secured Claim of LV Midtown that is not satisfied as

part of its Allowed Class 2 Secured Claim of LV Midtown

shall be treated as a Class 5 Allowed General Unsecured

Claim pursuant to the term of the Plan.

(i) LV

Midtown will

accept

$19,600,000;

and (ii)

contribute

$800,000 of its

collateral as a

Surcharge

Contribution.

Class 3:

Disputed

Secured

Claim of QR

Triptych

The Debtor shall reserve and contribute to the Liquidating

Trust the Excess Sale Proceeds. The Excess Sale Proceeds

shall be held in trust by the Liquidating Trustee and shall be

disbursed in accordance with any Final Order, decree or

judgment entered by the Bankruptcy Court resolving or

adjudicating the Avoidance Litigation after the expiration of

all appellate periods of the resolution of any appeals thereof.

In the event that the Bankruptcy Court determines, after the

exhaustion of all appeals, that the holder of the Disputed

Secure Claim of QR Triptych is, in whole or in part, entitled

to assert an allowed claim secured against the Property

and/or Excess Sale Proceeds, or any portion thereof, then the

holder of the Disputed Secured Claim of QR Triptych shall

be entitled to (i) receive a distribution of the Excess Sale

Proceeds up to the amount the Bankruptcy Court determines

the Disputed Secured Claim of QR Triptych, less the QR

Triptych Surcharge that the Bankruptcy Court may determine

and award under Sections 506(a) and 506(c) of the

Bankruptcy Code; (ii) realization of the indubitable

equivalent of the Disputed Secured Claim of QR Triptych,

including either in the form of Cash equal to the value of

such collateral pursuant to section 506(a) of the Bankruptcy

Code and/or the return of the collateral securing such Claim

in accordance with 11 U.S.C. §1129(b)(2)(A)(iii) of the

Bankruptcy Code; or (iii) satisfaction of such Disputed

Secured Claim of QR Triptych as otherwise authorized by

the Bankruptcy Code or agreed to by the holder of the

$10,597,709.81 0%.

Claim is

disputed in its

entirety.

21

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Class Treatment of Claims and Interests

Estimated

Aggregate

Claims

Estimated

Percentage

Recovery

Disputed Secured Claim of QR Triptych. If the Disputed

Secured Claim of QR Triptych is recharacterized as equity in

the Triptych Debtor by a final, non-appealable order, decree

or judgment of the Bankruptcy Court, then it shall be treated

in accordance with the treatment provided for in any plan of

reorganization that may be confirmed for the Triptych Debtor

or as otherwise provided for under applicable law

Class 4:

Allowed

General

Unsecured

Claims

In full satisfaction, settlement, release, extinguishment and

discharge of each such Allowed General Unsecured Claim,

each Holder of an Allowed General Unsecured Claim shall

receive a Class A Beneficial Interest in the Liquidating Trust

on a Pro Rata basis with all other Holders of Allowed

General Unsecured Claims. Such Class A Beneficial Interest

shall entitle such Holder to Distributions from time to time

from the Liquidating Trust, as determined by the Liquidating

Trustee in the exercise of his business judgment after

accounting for any Liquidating Trust Reserves, on a Pro Rata

basis with the Holders of all Class A Beneficial Interests in

the Liquidating Trust, which Distributions will be made from

Available Cash on deposit from time to time with the

Liquidating Trust, provided that the maximum Distributions

to the Holders of Allowed General Unsecured Claims shall

be the full amount of each Allowed General Unsecured

Claim without interest. The first Distribution shall be made

as soon as reasonably practicable following the Effective

Date, provided however, that any Distribution to the Holders

of Disputed Claims shall be reserved in the Disputed Claims

Fund. No Distribution shall be made to Holders of Allowed

General Unsecured Claims unless and until (i) all Allowed

Administrative Claims, all Allowed Professional Fee Claims,

all Allowed Priority Tax Claims, all U.S. Trustee Fees and all

Claims in Classes 2 and 3 have been paid in full, reserved or

otherwise resolved, and (ii) the Liquidating Trustee has paid

or reserved for all obligations of the Liquidating Trust and

has established the Liquidating Trust Reserve in connection

therewith. Notwithstanding, the Liquidating Trustee may

distribute to Holders of Allowed General Unsecured Claims

(i) any portion of the Surcharge Contribution received as a

Liquidating Trust Asset and not otherwise used by the

Liquidating Trustee to pay expenses of the Liquidating Trust;

and (ii) any Sale Proceeds in excess of the Disputed Claim of

QR Triptych

$4,759,570.81 Unknown

Class 5:

Allowed

Equity

Interests

In full satisfaction, settlement, release, extinguishment and

discharge of the Allowed Class 6 Equity Interest, the

Triptych Debtor shall receive a Class B Beneficial Interest in

the Liquidating Trust, which Class B Beneficial Interest shall

entitle the Triptych Debtor Triptych to receive Distributions

from time to time from the Liquidating Trust, as determined

by the Liquidating Trustee in the exercise of their business

Unknown Unknown

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Class Treatment of Claims and Interests

Estimated

Aggregate

Claims

Estimated

Percentage

Recovery

judgment after accounting for any Liquidating Trust

Reserves, from Available Cash on deposit from time to time

with the Liquidating Trust, provided that no Distribution

shall be made to the Triptych Debtor Triptych on account of

the Allowed Class 5 Equity Interest unless and until (i) all

Allowed Administrative Claims, all Allowed Professional

Fee Claims, all Allowed Priority Claims, all Allowed Priority

Tax Claims, all U.S. Trustee Fees, all Claims in Classes 2

and 3 and all Allowed General Unsecured Claims in Class 4

represented by the Class A Beneficial Interests have been

paid in full, reserved or otherwise resolved, and (ii) the

Liquidating Trustee has paid or reserved for all obligations of

the Liquidating Trust and has established the Liquidating

Trust Reserve in connection therewith.

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(f) Classification of Claims and Equity Interests Under the Amended Plan

The following table designates the Classes of Claims against and Equity Interests in the

Debtor under the Plan, and specifies which Classes are (a) Impaired or Unimpaired by the Plan,

(b) entitled to vote to accept or reject the Plan in accordance with section 1126 of the Bankruptcy

Code, or (c) deemed to accept or reject the Plan.

Class Claim Status Entitled to Vote?

1 Secured Real Estate Tax

Claims

Unimpaired No; Deemed to Accept the

Plan

2 Allowed Secured Claim of LV

Midtown

Impaired Yes

3 Disputed Secured Claim of QR

Triptych

Impaired Yes

4 Allowed General Unsecured

Claims

Impaired Yes

5 Allowed Equity Interests Impaired Yes

ARTICLE IV

MEANS OF IMPLEMENTING THE AMENDED PLAN

4.01 The Debtor will Sell the Property

The Plan will be funded through the sale of the Property in the manner described in the

Sale Approval Order. See Section §2.05(e), supra.

4.02 The Liquidating Trust

On the Effective Date of the Plan, (i) the Liquidating Trust shall be created and shall be

governed by the terms of the Liquidating Trust Agreement, (ii) the Liquidating Trust Assets shall

vest in, and be transferred to, the Liquidating Trust, which Liquidating Trust shall constitute, be

appointed as and be deemed a representative of the Debtor’s Estate pursuant to and in

accordance with the terms of Section 1123(b)(3)(B) of the Bankruptcy Code solely for the

benefit of the Liquidating Trust Beneficiaries, and (iii) the Liquidating Trust, through the

Liquidating Trustee, is and shall, among the other powers set forth herein and in the Liquidating

Trust Agreement, be authorized and appointed to investigate, prosecute, enforce, pursue and

settle any and all Causes of Action, provided however, that any settlement of a Cause of Action

proposed by the Liquidating Trustee shall require the approval of the Bankruptcy Court upon the

filing of a motion in connection therewith.

NOTWITHSTANDING ANYTHING IN THE PLAN TO THE CONTRARY, THE

VESTING IN AND TRANSFER OF THE LIQUIDATING TRUST ASSETS TO THE

LIQUIDATING TRUST SHALL BE FREE AND CLEAR OF ANY AND ALL LIENS,

CLAIMS, ENCUMBRANCES AND INTERESTS OF ANY KIND WHATSOEVER.

NOTWITHSTANDING ANYTHING IN THE PLAN TO THE CONTRARY, NO ASSETS OF

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THE DEBTOR OR THE DEBTOR’S ESTATE SHALL VEST IN THE DEBTOR OR ANY

OTHER PERSON OR ENTITY FROM AND AFTER THE EFFECTIVE DATE, OTHER

THAN THE LIQUIDATING TRUST.

(a) Execution and Implementation

On or before the Effective Date, the Liquidating Trust Agreement shall be executed by

the Debtor and the Liquidating Trustee and all other necessary steps shall be taken to establish

the Liquidating Trust, which shall be for the benefit of the Liquidating Trust Beneficiaries

thereunder. The Liquidating Trust is created solely to implement the terms of the Plan. The

primary purposes of the Liquidating Trust is to collect and liquidate the Assets of the Debtor’s

Estate, pursue those claims and Causes of Action transferred to, and vested in, the Liquidating

Trust and distribute to the Liquidating Trust Beneficiaries all proceeds from the liquidation of

the applicable Assets pursuant to the terms of the Plan and in accordance with Treasury

Regulation Section 301.7701-4(d). Under no circumstances shall the Liquidating Trustee have

any power to engage in any trade or business or any other activity except as specifically provided

herein or otherwise reasonably necessary and advisable for the orderly liquidation and

distribution of the Liquidating Trust Assets of the Debtor’s Estate.

(b) Liquidating Trust Assets

The Liquidating Trust shall consist of the Liquidating Trust Assets from the Debtor’s

Estate after any required Distributions by the Debtor on the Effective Date. The Debtor shall

transfer the Liquidating Trust Assets to the Liquidating Trust. Such transfer shall be exempt

from any stamp, real estate transfer, mortgage reporting, sales, use or other similar tax pursuant

to section 1146(a) of the Bankruptcy Code and any other applicable law. In connection with the

transfer of the Liquidating Trust Assets to the Liquidating Trust, such Liquidating Trust Assets,

including, without limitation, Causes of Action, shall vest in the Liquidating Trust on the

Effective Date.

(c) Liquidating Trustee

The Liquidating Trust shall be governed by the Liquidating Trustee according to the

Liquidating Trust Agreement for the Liquidating Trust. The Liquidating Trustee for the

Liquidating Trust shall mean ______________________ (the “Liquidating Trustee”), the

Liquidating Trustee named to administer the Liquidating Trust, and all successor Liquidating

Trustees. The Liquidating Trustee shall be deemed to have been appointed as the respective

Estate’s representative for the Debtor by the Bankruptcy Court pursuant to section 1123(b)(3)(B)

of the Bankruptcy Code.

(d) Powers of the Liquidating Trustee

In furtherance of and consistent with the purpose of the Liquidating Trust and the Plan,

the Liquidating Trustee shall, among other things, have the rights, powers and duties of a chapter

7 trustee under Section 704 of the Bankruptcy Code and a chapter 11 trustee under section 1106

of the Bankruptcy Code and shall include, without limitation, the following: (i) to hold, manage,

dispose of, sell, convert to Cash, and distribute the Liquidating Trust Assets, including

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investigating, prosecuting and resolving the Causes of Action; (ii) to hold the Liquidating Trust

Assets for the benefit of the Liquidating Trust Beneficiaries that are entitled to distributions

therefrom under the Plan, whether their Claims are Allowed on or after the Effective Date; (iii)

in the Liquidating Trustee's reasonable business judgment, to investigate, prosecute, settle,

liquidate, dispose of, and/or abandon the Liquidating Trust Assets, including Causes of Action;

(iv) to monitor and enforce the implementation of the Plan; (v) to file all tax and regulatory

forms, returns, reports and other documents and financial information required with respect to

the Liquidating Trust or the Debtor; (vi) in the Liquidating Trustee's reasonable business

judgment, to reconcile and object to Claims against the Debtor or the Liquidating Trust, and

manage, control, prosecute and/or settle on behalf of the Estate and/or Liquidating Trust’s

Objections to Claims on account of which the Liquidating Trustee will be responsible (if

Allowed) for making Distributions under the Plan; (vii) to take all actions necessary, and create

any documents necessary, to wind up the affairs of the Debtor and to implement the Plan; (viii)

to hold, manage, and distribute Cash or non-Cash Liquidating Trust Assets obtained through the

exercise of its power and authority; (ix) to act as a signatory to the Debtor for all purposes,

including those associated with the novation of contracts or other obligations arising out of the

sales of the Debtor’s Assets; (x) to dispose of the books and records transferred to the

Liquidating Trustee in a manner deemed appropriate by the Liquidating Trustee in accordance

with applicable law; provided, however, that the Liquidating Trustee shall not dispose of any

books and records that are reasonably likely to pertain to pending litigation in which the Debtor

or its current or former managers, partners, officers or directors are a party without further order

of the Bankruptcy Court; (xi) to take all necessary action and file all appropriate motions to

obtain an order closing the Chapter 11 Case; (xii) to enter into and exercise rights under

contracts that are necessary or desirable to the administration of the Liquidating Trust and

execute any documents or pleadings related to the liquidation of the Liquidating Trust Assets or

other matters related to the Liquidating Trust; (xiii) to establish and maintain bank accounts and

terminate such accounts as the Liquidating Trustee deems appropriate; (xiv) to set off amounts

owed to the Debtor against distributions to Liquidating Trust Beneficiaries; (xv) to bring suits or

defend itself against such suits, if any, as the Liquidating Trustee determines in connection with

any matter arising from or related to the Plan or the Liquidating Trust Agreement that affects in

any way the rights or obligations of the Liquidating Trust, the Liquidating Trustee or the

Liquidating Trust Beneficiaries; (xvi) to obtain and maintain insurance coverage with respect to

the liabilities and obligations of the Liquidating Trustee; (xvii) to take all actions necessary and

appropriate to minimize any adverse state or federal tax consequences to the Liquidating Trust

Beneficiaries provided such actions do not result in an adverse tax consequence to the

Liquidating Trust and are consistent with and are not contrary to the treatment of the Liquidating

Trust as a “grantor trust” for United States federal income tax purposes; and (xviii) to take such

other and further actions as are permitted by the Plan and are not inconsistent with the Plan and

the Liquidating Trust Agreement. In all circumstances, the Liquidating Trustee shall act in the

best interests of all beneficiaries of the Liquidating Trust in furtherance of the purposes of the

Liquidating Trust. . In connection with the administration of the Liquidating Trust, except as

otherwise set forth herein, the Trustee is authorized to perform only those acts necessary and

desirable to accomplish the purposes of the Liquidating Trust. The Liquidating Trust shall

succeed the rights of the Debtor necessary to protect, conserve and liquidate all Liquidating

Trust Assets as quickly as reasonably practicable. Subject to the limitations set forth in this

Trust Agreement, the Plan and the Confirmation Order, the Liquidating Trustee may exercise all

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powers granted it hereunder related to, or in connection with, the collection, prosecution,

liquidation, and distribution to the Beneficiaries, of the Trust Assets. Without limiting, but

subject to, the foregoing, the Liquidating Trustee shall be expressly authorized:

(a) To open and maintain bank accounts on behalf of or in the name of the Liquidating 

Trust, calculate and make Distributions and take other actions consistent with the Plan and the

implementation thereof, including the establishment, re-evaluation, adjustment and maintenance

of appropriate reserves, in the name of the Liquidating Trust.

(b) To receive, conserve and manage the Trust Asset

(c) To hold legal title to any and all Trust Assets.

(d) Subject to the applicable provisions of the Plan, to prosecute, collect and liquidate 

the Trust Assets.

(e) To take discovery from third parties, including but not limited to, issuing 

Fed.R.Bankr.P. 2004 subpoenas and discovery requests.

(f) Make decisions regarding the retention or engagement of Trustee's Professionals 

and to pay, from the Trust Assets and the proceeds thereof, the fees and charges incurred by the

Liquidating Trust and the fees and expenses of the Liquidating Trustee's Professionals, as well as

the disbursements, expenses or related support services relating to the implementation of the

Plan and performance by the Trustee of its duties under this Agreement. To pay all lawful,

expenses, debts, charges and liabilities of the Liquidating Trust.

(g) To wind down the affairs of the Trust including the filing of final tax returns, if 

applicable, establish any administrative reserves necessary to close the Trust and make all

Distributions to the Beneficiaries provided for or contemplated by the Plan.

(h) To withhold from the amount distributable to any Person such amount as may be 

sufficient to pay any tax or other charge which the Trustee has determined, in its sole discretion,

may be required to be withheld therefrom under the income tax laws of the United States or of

any state or political subdivision thereof. In the exercise of its discretion and judgment, the

Trustee may enter into agreements with taxing or other governmental authorities for the payment

of such amounts as may be withheld in accordance with the provisions of this section.

(i) To enter into any agreement or execute any document required by or consistent 

with the Plan and perform all obligations thereunder.

(j) To abandon in any commercially reasonable manner, including abandonment or 

donation to a charitable organization of its choice, any assets if it concludes that they are of no

significant value or benefit to the Liquidating Trust.

(k) Except as otherwise set forth in this Trust Agreement, to have exclusive power to 

prosecute and/or settle all causes of actions including, without limitation, Avoidance Actions or

any other causes of action or counterclaims as described in the Plan and Disclosure Statement

(the “Causes of Action") and exercise, participate in or initiate any proceeding before the

Bankruptcy Court or any other court of competent and appropriate jurisdiction and voluntarily

participate as a party or otherwise in any administrative proceeding, arbitration, mediation, or

other nonjudicial proceeding and litigate or settle such Actions on behalf of the Liquidating

Trust, and pursue such actions to settlement or final order, all in accordance with the terms of

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this Agreement.

(l) To hold any unclaimed Distributions or payment to a Beneficiary in accordance 

with this Agreement, the Confirmation Order and the Plan.

(m) To purchase or create and carry all insurance policies and pay all insurance 

premiums and costs it deems necessary or advisable.

(n) To implement and/or enforce all provisions of the Plan.

(o) To collect and liquidate all Trust Assets pursuant to the Plan, the Confirmation 

Order and this Agreement and to ultimately close the Chapter 11 Case.

(p) To object to Claims and supervise and administer the resolution, settlement and 

payment of such Claims and the distribution to the Beneficiaries in accordance with this

Agreement and the Plan. Specifically, the Liquidating Trustee may compromise or settle any

such Claim (disputed or otherwise) free of any restrictions other than those restrictions expressly

imposed by the Plan, the Confirmation Order or this Agreement.

(q) Exercise such rights of setoff as the Debtor or the Estate may have had against any 

Beneficiary and/or seek Court approval of such exercise.

(r) Voluntarily engage in arbitration or mediation with regard to any dispute.

(s) To (i) seek a determination of tax liability under section 505 of the Bankruptcy 

Code, (ii) file, if necessary, any and all tax information returns required with respect to the

Liquidating Trust treating the Liquidating Trust as a grantor trust pursuant to Treas. Reg.

1.67-4(a) or otherwise, (iii) make tax elections by and on behalf of the Liquidating Trust and (iv)

pay taxes, if any, payable by the Liquidating Trust.

(t) To make all distributions to holders of Allowed Claims provided for or 

contemplated by the Plan. Resolve issues pe1taining to the retention or disposal of the

Liquidating Trust's administrative and business records.

(u) To perform any other actions or duties required to be performed by the Liquidating 

Trustee pursuant to the provisions of the Plan and/or Confirmation Order.

For the avoidance of doubt, and without limitation of the foregoing, the Liquidating

Trustee shall explicitly have the authority to: (i) investigate, prosecute, settle, liquidate, dispose

of, and/or abandon any and all Claims and Causes of Action, subject to Bankruptcy Court

approval, after notice and hearing; and (ii) file all tax and regulatory forms, returns, reports and

other documents and financial information required with respect to the Debtor or the Liquidating

Trust, and request a prompt determination of such requests; and (iii) investigate, prosecute,

settle, liquidate, dispose of, and/or abandon any and all other Claims and Causes of Action

reserved in the Plan, subject to Bankruptcy Court approval, after notice and hearing.

(e) Corporate Action

All actions contemplated to be performed by the Debtor pursuant to the Plan, or any

corporate or partnership action to be taken by or required of the Debtor, shall, as of the Effective

Date, be deemed to have occurred and be effective as provided herein, and shall be authorized

and approved in all respects without any requirement for further action by the shareholders,

partners, members or managers of the Debtor. All Persons, governmental units, title agencies,

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licensing agencies and offices of recordation may rely upon the authority vested in the Debtor in

order to effectuate the Plan and the transactions contemplated herein.

(f) Costs and Expenses

The costs and expenses of the Liquidating Trust, and the reasonable fees and expenses of

the Liquidating Trustee and the Liquidating Trustee’s Professionals, United States Trustee fees,

shall be paid out of the Liquidating Trust Assets for the Liquidating Trust. Those Professionals

shall continue to file fee applications with the Bankruptcy Court for services provided to the

Liquidating Trust and Liquidating Trustee, and all requests of Professionals retained by the

Liquidating Trust for payment of fees or expenses shall be made by means of an interim or final

fee application and shall be subject to the approval of, and review by, the Bankruptcy Court to

ensure that such payment conforms to the terms of any engagement agreement, the Bankruptcy

Code, the Bankruptcy Rules, the Local Bankruptcy Rules.

(g) Compensation of the Liquidating Trustee

The Liquidating Trustee shall be entitled to reasonable compensation at his standard

hourly rates.

(h) Retention of Professionals

The Liquidating Trustee may retain and compensate attorneys, accountants and other

professionals (collectively, the “Professionals”) to assist in his duties as Liquidating Trustee

under the Plan and Liquidating Trust on such terms (including on a contingency or hourly basis)

as the Liquidating Trustee deems appropriate without Bankruptcy Court approval. Without

limiting the foregoing, the Liquidating Trustee may retain any Professional that represented the

Debtor or other parties in interest in this Chapter 11 Case.

(i) Tax Consequences of Liquidating Trust

For all U.S. federal income tax purposes, all parties (including, without limitation, the

Debtor, the Liquidating Trustee and the Liquidating Trust Beneficiaries) shall treat the transfer

of the Liquidating Trust Assets to the Liquidating Trust as: (A) a transfer of the Liquidating

Trust Assets (subject to any obligations relating to those assets) directly to those Holders of

Allowed Claims and Equity Interests receiving Beneficial Interests in the Liquidating Trust (the

“Liquidating Trust Beneficial Interests”), followed by (B) the transfer by such Liquidating Trust

Beneficiaries to the Liquidating Trust of the Liquidating Trust Assets in exchange for the

Liquidating Trust Beneficial Interests.

Accordingly, those Holders of Allowed Claims and Equity Interests receiving

Liquidating Trust Beneficial Interests shall be treated for United States federal income tax

purposes as the grantors and deemed owners of their respective share of the Liquidating Trust

Assets. The foregoing treatment shall also apply, to the extent permitted by applicable law, for

state and local income tax purposes. Notwithstanding the foregoing, (i) in the event that any

portion of a Liquidating Trust is treated as a “qualified settlement fund” pursuant to Section

1.468B-1 of the Treasury Regulations, the United States federal income tax consequences shall

be determined in accordance with the rules set forth in Section 468B of the Internal Revenue

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Code and the Treasury Regulations thereunder; and/or (ii) in the event that the Liquidating

Trustee timely elects to treat any Liquidating Trust Assets allocable to the Disputed Claims Fund

as a “disputed ownership fund” pursuant to Section 1.468B-9(c)(2)(ii) of the Treasury

Regulations, any Holders of such Disputed Claims shall, to the extent of such Disputed Claims,

not be treated as having received any portion of the Liquidating Trust Assets transferred to the

Liquidating Trust hereunder and shall not be deemed as grantors of the Liquidating Trust to the

extent of such Disputed Claims

(j) Duration

The Liquidating Trust shall remain in existence and continue in full force and effect until

all of the following shall have occurred: (a) the Liquidating Trust Assets have been reduced to

Cash or the Liquidating Trustee has determined that it is impractical or not in the best interest of

the Liquidating Trust Beneficiaries to do so; (b) all costs, expenses and obligations incurred in

administering the Liquidating Trust have been paid and discharged; (c) the Liquidating Trust

Assets have been distributed to the Liquidating Trust Beneficiaries in accordance with the Plan;

and (d) a final report has been filed and a Final Decree closing the Chapter 11 Case has been

entered; provided, however, that the Liquidating Trust shall not remain in existence more than

five years from the date of the Liquidating Trust Agreement, unless extended pursuant to the

terms hereof. If warranted by the facts and circumstances provided for in the Plan, and subject to

the approval of the Bankruptcy Court of a motion of the Liquidating Trustee seeking an

extension of the term of the Liquidating Trust as necessary to the purpose of the Liquidating

Trust, then the term of the Liquidating Trust may be extended for a finite term based on the

particular circumstances. Each extension must be approved by the Bankruptcy Court within six

months of the beginning of the extended term with notice thereof to all Liquidating Trust

Beneficiaries. Notwithstanding the foregoing, the Liquidating Trust shall in no event remain in

existence for more than twenty-one years from the Effective Date.

(k) Indemnification

The Liquidating Trustee and the Liquidating Trustee’s attorneys, employees, officers,

directors, agents, representatives, and Professionals, as the case may be, shall be held harmless

and shall not be liable for actions taken or omitted in their capacity as, or on behalf of, the

Liquidating Trustee, except those acts that are determined by Final Order to have arisen out of

their own intentional fraud, willful misconduct or gross negligence, and each shall be entitled to

be indemnified, held harmless, and reimbursed for fees and expenses including, without

limitation, reasonable attorney’s fees, which such Persons and Entities may incur or may become

subject to or in connection with any action, suit, proceeding or investigation that is brought or

threatened against such Persons or Entities in respect of that person’s or entity’s or the

Liquidating Trustee’s actions or inactions regarding the implementation or administration of the

Plan, the Liquidating Trust or the Liquidating Trust Agreements or the discharge of their duties

hereunder or thereunder, except for any actions or inactions that are determined by Final Order

to have arisen from intentional fraud, willful misconduct or gross negligence.

Any claim of the Liquidating Trustee and the other parties entitled to indemnification

under this section, to be indemnified, held harmless, or reimbursed shall be satisfied solely from

the Liquidating Trust Assets, including but not limited to the Available Cash, or any applicable

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insurance coverage. The Liquidating Trustee shall be entitled to rely, in good faith, on the advice

of their retained professionals regardless of whether such advice is provided in writing or

verbally. Notwithstanding the foregoing, the Liquidating Trustee shall not be under any

obligation to consult with his retained professionals, and his determination not to do so shall not

result in the imposition of liability on the Liquidating Trustee unless such determination is based

on willful misconduct, gross negligence, or intentional fraud.

(l) Bond

As a condition to serving as Liquidating Trustee, the Liquidating Trustee, and any

successor trustee, shall post a bond in favor of the Liquidating Trust in an amount that is not less

than the amount of Cash held by the Liquidating Trust on the Effective Date, which bond shall

be in substantially the same form as is required by the United States Trustee for trustees in the

Southern District of Florida.

For the avoidance of doubt, the Liquidating Trust shall be responsible for all costs

associated with the posting of the foregoing bond, including the premium associated with such

bond. In addition, the Liquidating Trustee is hereby authorized, out of funds available from the

Liquidating Trust, to obtain all reasonably necessary insurance coverage for himself and the

Liquidating Trust, their agents, representatives, employees or independent contractors whether as

a named insured on the policies or otherwise, including, but not limited to, coverage with respect

to (a) appropriate directors and officers/trustee liability insurance,(b) any property that is or may

in the future become the property of the Liquidating Trust, and (c) the liabilities, duties, and

obligations of the Liquidating Trustee and the Liquidating Trust. Such bond shall be subject to

discharge and release upon an appropriate motion and order from the Bankruptcy Court upon the

Liquidating Trustee’s resignation, death or removal, or for other cause.

(m) Resignation, Death or Removal

The Liquidating Trustee may resign at any time; provided, however, that he shall file a

motion with the Bankruptcy Court in connection therewith and request that a successor or

replacement be appointed in accordance herewith, which motion shall be on notice to the top

twenty (20) Creditors holding Allowed Claims and the Office of the United States Trustee. The

Office of the United States Trustee or any party in interest, by motion filed with the Bankruptcy

Court, or the Bankruptcy Court on its own order to show cause, may seek to remove the

Liquidating Trustee for cause, including under Section 324 of the Bankruptcy Code, or, if

Section 324 is deemed inapplicable, then for the same reasons that would otherwise suffice under

Section 324, for the violation of any material provision of the Plan, or in the event the

Liquidating Trustee becomes incapable of acting hereunder as a result of physical or mental

disability and such physical or mental disability continues for a period in excess of thirty (30)

days (except in the case of death, in which instance the procedures for replacement will begin

immediately).

In the event of a resignation or removal, the Liquidating Trustee, unless he is incapable

of doing so, shall continue to perform his duties hereunder until such a time as a successor is

approved by a Final Order of the Bankruptcy Court. In the event the Liquidating Trustee resigns

or is removed, the Liquidating Trust Beneficiaries, shall have 90 days to select a successor

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Liquidating Trustee by filing a motion with the Bankruptcy Court. If the Liquidating Trust

Beneficiaries do not select a successor Liquidating Trustee, then the Office of the United States

Trustee may file a motion with the Bankruptcy Court seeking an order directing the United

States Trustee to select such successor.

(n) Transfer of Assets Free and Clear of all Liens, Claims and Encumbrances

NOTWITHSTANDING ANYTHING IN THE PLAN TO THE CONTRARY, THE

VESTING IN AND TRANSFER OF THE LIQUIDATING TRUST ASSETS TO THE

LIQUIDATING TRUST SHALL BE FREE AND CLEAR OF ANY AND ALL LIENS,

CLAIMS, ENCUMBRANCES AND INTERESTS OF ANY KIND WHATSOEVER.

NOTWITHSTANDING ANYTHING IN THE PLAN TO THE CONTRARY, NO

ASSETS OF THE DEBTOR OR THE DEBTOR’S ESTATE SHALL VEST IN THE DEBTOR

OR ANY OTHER PERSON OR ENTITY FROM AND AFTER THE EFFECTIVE DATE

OTHER THAN THE LIQUIDATING TRUST.

ARTICLE V

PRESERVATION OF CAUSES OF ACTION

5.01 Transfer of Causes of Action

Pursuant to the terms of the Plan, all Causes of Action are being transferred to the

Liquidating Trust. On and as of the Effective Date, all Causes of Action shall be preserved and

vested in the Liquidating Trust. After the Effective Date, the Liquidating Trust, through the

Liquidating Trustee, will have the right to pursue, not pursue, enforce, file, settle, compromise,

release, withdraw, arbitrate or litigate any Cause of Action that vests in the Liquidating Trust,

provided, however, that any settlement of a Cause of Action shall require the approval of the

Bankruptcy Court upon the filing of a motion and a hearing.

5.02 No Release of Any Claim or Causes of Action

THE PLAN DOES NOT, AND IS NOT INTENDED TO, RELEASE ANY CAUSE OF

ACTION OR OBJECTIONS TO CLAIMS, AND ALL SUCH RIGHTS ARE SPECIFICALLY

RESERVED IN FAVOR OF THE LIQUIDATING TRUST. Creditors are advised that legal

rights, claims and rights of action the Debtor may have against them, if they exist, are retained

under the Plan for prosecution unless a specific order of the Bankruptcy Court authorizes the

Debtor to release such claims. As such, Creditors are cautioned not to rely on (i) the absence of

the listing of any legal right, claim or right of action against a particular Creditor in the

Disclosure Statement, the Plan, or the Schedules, or (ii) the absence of litigation or demand prior

to the Effective Date of the Plan as any indication that the Debtor or Liquidating Trustee do not

possess or do not intend to transfer to or vest any Cause of Action in the Liquidating Trustee if a

particular Creditor votes to accept the Plan. It is the expressed intention of the Plan to preserve

rights, objections to Claims, and rights of action of the Debtor, whether now known or unknown,

for the benefit of the Liquidating Trusts. A Cause of Action shall not, under any circumstances,

be waived as a result of the failure of the Debtor to describe such Cause of Action with

specificity in the Plan or in the Disclosure Statement; nor shall the Liquidating Trustee, as a

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result of such failure, be estopped or precluded under any theory from pursuing any such Cause

of Action. Nothing in the Plan operates as a release of any Cause of Action.

5.03 Summary and Disclosure of Causes of Action

The Debtor does not presently know the full extent of the Causes of Action and, for

purposes of voting on the Plan, all Creditors and Holders of Equity Interests are advised that the

Liquidating Trustee will have substantially the same rights that a Chapter 7 trustee would have

with respect to the Causes of Action. Accordingly, neither a vote to accept either Plan by any

Creditor or Holder of an Equity Interest nor the entry of the Confirmation Order will act as a

release, waiver, bar or estoppel of any Cause of Action against such Creditor or any other Person

or Entity. Confirmation of the Plan and entry of the Confirmation Order is not intended to and

shall not be deemed to have any res judicata or collateral estoppel or other preclusive effect that

would precede, preclude, or inhibit prosecution of such Cause of Action following Confirmation

of the Plan.

For avoidance of doubt, the Debtor and the Liquidating Trustee specifically preserve any

and all claims and Causes of Action against any of the following for actions taken or omitted to

be taken that caused either of the Debtor damage or harm: (i) any Holders of Equity Interests; (ii)

QR Triptych, LLC; (iii) JQ Real Estate, LLC; (iv) Jesus Quintero; and (vi) ZP Investments, LLC

(collectively, the “Known Targets”) for the enforcement and collection of amounts owed in

connection therewith to the Debtor and the avoidance of any releases provided by the Debtor or

transfers of property interests of the Debtor. For the further avoidance of Doubt, the Avoidance

Litigation shall be transferred to the Liquidating Trust and the Liquidating Trustee shall be

substituted as plaintiff on behalf of the Debtor.

In addition to the above, the Causes of Action which are all specifically preserved under

the Plan, include, without limitation, specifically the following:

i. Any and all claims and causes of action, including Causes of Action, under state

or federal law against the Known Targets , any and all present and former managers, partners

(limited or general partners), directors, officers, shareholders, principals, employees, agents and

affiliates of, the Debtor and of any affiliates of the Debtor, and any professionals employed by

the Debtor, including accountants, auditors and lawyers, including without limitation, in any way

related to, including providing aid and assistance in connection with: (i) the operation,

management, funding and fund raising of the Debtor, including without limitation, breach of

fiduciary duty, negligence, negligent management, fraud, civil theft, civil RICO or conspiracy,

conversion, alter ego, misrepresentation, professional malpractice, corporate advantage, theft of

corporate opportunities, wasting of corporate assets, equitable subordination of claims, breach of

contract and federal or state statutory claims (including securities laws violations), as well as

aiding and abetting any of the above; (ii) the sale, transfer, exchange or disposition of any

property of or securities in the Debtor or any of its affiliates, or any partnership interests,

preferred stock, common stock or equity or similar interest or securities therein, either prior to or

after the Petition Date; or (iii) the conversion, misappropriation or misapplication of property of

the Debtor or any of its affiliates or any products or proceeds therefrom.

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ii. Any and all claims, choses in action, causes of action suits, accounts,

controversies, agreements, promises, rights to legal remedies, rights to equitable remedies, rights

to payments and claims, whether known or unknown, reduced to judgment, not reduced to

judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,

secured or unsecured and whether assertable directly or derivatively, in law, equity or otherwise,

which are owned or held by, or have accrued to, the Debtor or the Estate, whether arising before

or after the Petition Date, including without limitation, those which are: (i) property of the Estate

of the Debtor under and pursuant to Section 541 of the Bankruptcy Code; (ii) for subrogation and

contribution; (iii) for turnover; (iv) for avoidable transfers and preferences under and pursuant to

Sections 542 through 550 and 553 of the Bankruptcy Code and applicable state law; (v) to

determine the extent, validity and priority of liens and encumbrances; (vi) for surcharge under

Section 506(c) of the Bankruptcy Code; (vii) for subordination under Section 510 of the

Bankruptcy Code; (viii) related to federal or state securities laws; (ix) direct or derivative claims

or causes of action of any type or kind; (x) for professional malpractice against professionals

employed by the Debtor; (xi) against any and all former managers, partners (limited or general

partners), officers and directors of the Debtor, including for breach of fiduciary duty or improper

distributions; (xii) under and pursuant to any policies of insurance maintained by the Debtor,

including without limitation, the directors’ and officers’ liability insurance policy; (xiii) for theft

of corporate opportunity; (xiv) for collection on accounts, accounts receivables, loans, notes

receivables or other rights to payment; (xv) for the right to seek a determination by the

Bankruptcy Court of any tax, fine or penalty relating to a tax, or any addition to a tax, under

Section 505 of the Bankruptcy Code; (xvi) which arise under or as a result of any section of the

Bankruptcy Code, including Section 362; and (xvii) against any lender of the Debtor related in

any way to the lending relationship with the Debtor, and further including but not limited to

claims against any such lender for exerting excessive or unreasonable control over the Debtor,

for, charging, taking, reserving, collecting or receiving interest in excess of the highest lawful

rate, for any breach of fiduciary duty, breach of any duty of fair dealing, breach of confidence, or

any cause of action or defense based on the negligence of such lender, for any “lender liability”

theories, breach of funding commitment, undue influence, duress, economic coercion, conflict of

interest, negligence, bad faith, malpractice, violations of the Racketeer Influenced and Corrupt

Organizations Act, intentional or negligent infliction of mental distress, tortious interference

with contractual relations, tortious interference with corporate governance or prospective

business advantage, breach of contract, fraud, mistake, deceptive trade practices, libel, slander,

conspiracy, fraudulent conveyance, or any claim for wrongfully taking any action in connection

with the foregoing; and (xviii) all claims against any Person with any connections with or to the

Debtor, based in law or equity, including, without limitation, under the Bankruptcy Code, federal

law or state law, whether direct, indirect, derivative or otherwise and whether asserted or

unasserted as of the Effective Date.

iii. Any and all claims and causes of action involving or in any way related to the

collection of accounts receivables, notes receivables, loans receivables or other receivables owed

to the Debtor; and

iv. Any and all claims and causes of action seeking to subordinate, equitably or

otherwise, Claims filed against the Estate, or to re-characterize such Claims as Equity Interests in

the Debtor;

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v. The Estate shall remain open, even if the Chapter 11 Case has been closed, as to

any and all Causes of Action until such time as the Causes of Action have been fully

administered and the recoveries therefrom have been received.

5.04 Summary and Disclosure of Causes of Action

The Liquidating Trust (a) may commence or continue in any appropriate court, tribunal

or any other appropriate setting (e.g., American Arbitration Association or other arbitration

association) any suit or other proceeding for the enforcement of any Cause of Action which the

Debtor had or had power to assert immediately prior to the Effective Date, and (b) may settle or

adjust such Cause of Action; provided, however, that from and after the Effective Date, the

Liquidating Trust shall be authorized to compromise and settle any Cause of Action or objection

to a Claim upon approval by the Bankruptcy Court after notice and a hearing.

ARTICLE VI

PROVISIONS GOVERNING DISTRIBUTIONS

6.01 Manner of Cash Payments Under the Amended Plan

Any Distribution pursuant to the Plan, to the extent posted in the United States mail, shall

be deemed made when deposited by the Debtor or the Liquidating Trustee (or their respective

agent(s)), as applicable, into the United States mail, or paid by wire transfer. At the option of the

Debtor or the Liquidating Trustee, as applicable, any Cash payment to be made pursuant to the

Plan shall be made, at the election of the Debtor or the Liquidating Trustee, as applicable, by

check drawn on a domestic bank, by wire transfer, or by ACH, from a domestic bank, or other

method mutually agreed upon by the holder of the Allowed Claim and the Debtor. Whenever

any Distribution to be made under the Plan shall be due on a day other than a Business Day, such

Distribution shall instead be made, without interest, on the immediately succeeding Business

Day, but shall be deemed to have been made on that due date.

6.02 Entity Making Distribution

Except as otherwise provided in the Plan, Distributions to holders of Allowed Claims and

Allowed Equity Interests shall be made by the Debtor, if before the Effective Date, or the

Liquidating Trustee if on or after the Effective Date. The Debtor and the Liquidating Trustee

shall not be required to give any bond or surety or other security for the performance of their

duties, unless otherwise ordered by the Bankruptcy Court.

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6.03 Distribution Dates

Distributions to holders of Claims and Equity Interests shall be made as provided in

Articles II and III of the Plan. If any payment or act under the 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.

6.04 Record Date for Distributions

Except as otherwise provided in a Final Order of the Bankruptcy Court, the transferees of

Claims or Equity Interests that are transferred pursuant to Bankruptcy Rule 3001 on or prior to

the Record Date will be treated as the holders of those Claims or Equity Interests (as applicable)

for all purposes, notwithstanding that any period provided by Bankruptcy Rule 3001 for

objecting to the transfer may not have expired by the Record Date. The Debtor or Liquidating

Trustee, as applicable, shall have no obligation to recognize any transfer of any Claim or Equity

Interest occurring after the Record Date. In making any Distribution with respect to any Claim

or Equity Interest, the Debtor or Liquidating Trustee, as applicable, shall be entitled instead to

recognize and deal with, for all purposes hereunder, only the Entity that is listed on the proof of

Claim or Equity Interest filed with respect thereto or on the Schedules as the holder thereof as of

the close of business on the Record Date and upon such other evidence or record of transfer or

assignment that was known to the Debtor as of the Record Date.

6.05 Delivery of Distributions

Subject to Bankruptcy Rule 9010 and except as otherwise provided herein, Distributions

to the holders of Allowed Claims and Allowed Equity Interests shall be made by the Debtor or

Liquidating Trustee, as applicable, at (a) the address of each holder as set forth in the Schedules,

unless superseded by the address set forth on proofs of Claim or Equity Interest filed by such

holder or (b) the last known address of such holder if no proof of Claim or Equity Interest is filed

or if the Debtor or Liquidating Trustee, as applicable, have not been notified in writing of a

change of address.

6.06 Undeliverable and Unclaimed Distributions

In the event that any Distribution to any holder of an Allowed Claim or Allowed Equity

Interest made by the Debtor or Liquidating Trustee, as applicable is returned as undeliverable,

the Debtor or Liquidating Trustee, as applicable, shall use commercially reasonable efforts to

determine the current address of each holder, but no Distribution to such holder shall be made

unless and until the Debtor or Liquidating Trustee, as applicable, has determined the then current

address of such holder; provided, however, that all Distributions to holders of Allowed Claims or

Allowed Equity Interests made by the Debtor or Liquidating Trustee, as applicable, that are

unclaimed for a period of ninety (90) days after the date of the first attempted Distribution shall

have its, his or her Claim or Equity Interest for such undeliverable Distribution deemed satisfied

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and will be forever barred from asserting any such Claim or Equity Interest against the Debtor or

Liquidating Trustee, as applicable, or their property. Any Distributions which are undeliverable

or have not been negotiated within the time set forth above shall be deemed unclaimed property

under section 347(b) of the Bankruptcy Code and revested in the Debtor or Liquidating Trustee,

as applicable. The Debtor or Liquidating Trustee, as applicable, shall have no further obligation

to make any Distribution to the holder of such Claim or Equity Interest on account of such Claim

or Equity Interest, and any entitlement of any holder of such Claim or Equity Interest to any such

Distributions shall be extinguished and forever barred; provided, however, that the holder of

such Claim or Equity Interest may receive future Distributions on account of such Claim or

Equity Interest by contacting the Debtor or Liquidating Trustee, as applicable, at some point

prior to the final Distribution.

6.07 Compliance with Tax Requirements

The Debtor or Liquidating Trustee, as applicable, may withhold and pay to the

appropriate taxing authority all amounts required to be withheld pursuant to the Tax Code or any

provision of any foreign, state or local tax law with respect to any payment or Distribution on

account of Claims or Equity Interests; provided, however, that the Debtor or Liquidating Trustee,

as applicable, shall not make any such withholdings described in this paragraph (other than

routine tax withholdings with respect to employee-related claims (if any)) from any payment or

Distribution on account of Claims or Equity Interests without first filing a notice with the Court

(and serving such notice on the holder of the Claim or Equity Interest) describing the nature and

amount of the proposed withholding and providing the Creditor or holder of Equity Interest an

opportunity to object. All such amounts withheld and paid to the appropriate taxing authority

shall be treated as amounts distributed to such holders of the Claims or Equity Interests.

The Debtor or Liquidating Trustee, as applicable, shall be authorized to collect such tax

information from the holders of Claims or Equity Interests (including social security numbers or

other tax identification numbers) as it in its sole discretion deems necessary to effectuate the

Plan. In order to receive Distributions under the Plan, all holders of Claims or Equity Interests

will need to identify themselves to the Debtor or Liquidating Trustee, as applicable, and provide

all tax information the Debtor or Liquidating Trustee, as applicable, deem appropriate (including

completing the appropriate Form W-8 or Form W-9, as applicable to each holder). The Debtor

or Liquidating Trustee, as applicable, may refuse to make a Distribution to any holder of a Claim

or Equity Interest that fails to furnish such information within the time period specified by the

Debtor or Liquidating Trustee, as applicable, and such Distribution shall be deemed an

unclaimed Distribution under the Plan, and, provided further that, if the Debtor or Liquidating

Trustee, as applicable, fail to withhold in respect of amounts received or distributable with

respect to any such holder and such Debtor are later held liable for the amount of such

withholding, such holder shall reimburse the Debtor or Liquidating Trustee, as applicable, for

such liability. Notwithstanding any other provision of the Plan, each holder of an Allowed

Claim or Equity Interest that is to receive a Distribution under the Plan shall have the sole and

exclusive responsibility for the satisfaction and payment of any tax obligations imposed by any

governmental unit.

6.08 No Payments of Fractional Dollars

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Notwithstanding any other provision of the Plan to the contrary, no payment of fractional

dollars shall be made pursuant to the Plan. Whenever any payment of a fraction of a dollar under

the Plan would otherwise be required, the actual Distribution made shall reflect a rounding down

of such fraction to the nearest whole dollar.

6.09 Interests on Claims

Except as specifically provided for in the Plan or the Confirmation Order or required by

the Bankruptcy Code, interest shall not accrue on Claims or Equity Interests and no holder of a

Claim or Equity Interest shall be entitled to interest on any Claim accruing on or after the

applicable Petition Date. Interest shall not accrue on any General Unsecured Claim that is a

Disputed Claim in respect of the period from the Effective Date to the date a final Distribution is

made thereon if and after that Disputed Claim becomes an Allowed Claim. Except as expressly

provided herein or in a Final Order of the Bankruptcy Court, no prepetition Claim shall be

Allowed to the extent that it is for post-petition interest or similar charges.

6.10 No Distribution in Excess of Allowed Amount of Claims

Notwithstanding anything to the contrary contained in the Plan, no holder of an Allowed

Claim shall receive in respect of that Claim any Distribution in excess of the Allowed amount of

such Claim.

6.11 Setoff and Recoupment

The Debtor or Liquidating Trust, as applicable, may setoff against, or recoup from, any

Claim or Equity Interest and the Distributions to be made pursuant to the Plan in respect thereof,

any Claims or defenses of any nature whatsoever that such Debtor or Liquidating Trust, as

applicable, or the Estate may have against the holder of such Claim or Equity Interest, but

neither the failure to do so nor the allowance of any Claim or Equity Interest under the Plan shall

constitute a waiver or release by the Debtor or Liquidating Trustee, as applicable, or the Estate

of any right of setoff or recoupment that any of them may have against the holder of any Claim

or Equity Interest. Any such setoffs or recoupments may be challenged in Bankruptcy Court.

Notwithstanding any provision in the Plan to the contrary, nothing therein shall bar any creditor

from asserting its setoff or recoupment rights to the extent permitted under section 553 or any

other provision of the Bankruptcy Code; provided, however, that such setoff or recoupment

rights are timely asserted; provided further that all rights of the Debtor or Liquidating Trustee, as

applicable, and the Estate with respect thereto are reserved.

6.12 De Minimis Distributions; Charitable Donations

Notwithstanding anything to the contrary in the Plan, the Debtor or Liquidating Trustee,

as applicable, shall not be required to make a Distribution to any Creditor of holder of an Equity

Interest if the dollar amount of the Distribution is less than $10 or otherwise so small that the

cost of making that Distribution exceeds the dollar amount of such Distribution. On or about the

time that the final Distribution is made, the Debtor or Liquidating Trustee, as applicable, may

make a donation of undistributable funds as defined by Local Rule 3011-1(C)(1), in the

reasonable discretion of the Debtor or Liquidating Trustee, as applicable, to the following

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organizations (each of which qualifies for not-for-profit status under section 501(c)(3) of the Tax

Code) with undistributable funds if, in the reasonable judgment of the Debtor or Liquidating

Trustee, as applicable, the cost of calculating and making the final Distribution of the

undistributable funds remaining is excessive in relation to the benefits to the or holders of

Claims or Equity Interests who would otherwise be entitled to such Distributions: (i) the

Bankruptcy Bar Foundation of the Bankruptcy Bar Association of the Southern District of

Florida; (ii) Legal Services of Greater Miami, Inc.; (iii) Dade Legal Aid- Put Something Back

Program; or (iv) Miami Foundation for Mental Health, Inc.

6.13 Withholding of Distributions

Any federal, state or local withholding taxes or other amounts required to be withheld

under applicable law shall be deducted from Distributions pursuant to the Plan. The Debtor or

Liquidating Trustee, as applicable, may withhold from amounts distributable pursuant to the Plan

to any Person or Entity any and all amounts, determined in the reasonable discretion of the

Debtor or Liquidating Trust, as applicable, required to be withheld by any law, regulation, rule,

ruling, directive, or other governmental requirement. The Debtor or Liquidating Trust, as

applicable, shall not make any such withholdings described in this paragraph (other than routine

tax withholdings with respect to employee-related claims (if any)) from any payment or

Distribution on account of Claims or Equity Interests without first filing a notice with the Court

(and serving such notice on the holder of the Claim or Equity Interest) describing the nature and

amount of the proposed withholding and providing the Creditor or holder an opportunity to

object.

6.14 Distributions in Satisfaction; Allocation

Except for the obligations expressly imposed by the Plan and the property and rights

expressly retained under the Plan, if any, the Distributions and rights that are provided in the

Plan shall be in complete satisfaction and release of all Claims against, liabilities in, Liens on,

obligations of and Equity Interests in the Debtor and their Estate, whether known or unknown,

that arose or existed prior to the Effective Date. Distributions received in respect of Allowed

Claims will be allocated first to the principal amount of such Claims, with any excess allocated

to unpaid accrued interest (if any).

6.15 No Distributions on Late-Filed Claims

Except as otherwise provided in a Final Order of the Bankruptcy Court, any Claim as to

which a proof of Claim was required to be filed and was first filed after the applicable bar date in

the Chapter 11 Case shall automatically be deemed a late-filed Claim that is disallowed in the

Chapter 11 Case, without the need for (a) any further action by the Debtor or Liquidating

Trustee, as applicable, (b) an order of the Bankruptcy Court. Nothing in this paragraph is

intended to expand or modify the applicable bar dates or any orders of the Bankruptcy Court

relating thereto.

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ARTICLE VII

DISPUTED CLAIMS

7.01 Resolution of Disputed Claims

The Debtor or the Liquidating Trustee, as applicable, shall have the right to make and file

objections to Claims or Equity Interests in the Bankruptcy Court. Unless otherwise ordered by

the Bankruptcy Court after notice and a hearing, all Disputed Claims or Equity Interests shall be

subject to the exclusive jurisdiction of the Bankruptcy Court.

7.02 Objection Deadline

All objections to Disputed Claims or Equity Interests shall be filed no later than the

Claims Objection Bar Date, unless otherwise ordered by the Bankruptcy Court after notice and a

hearing, with notice only to those parties entitled to notice in the Chapter 11 Case pursuant to

Bankruptcy Rule 2002.

7.03 Estimation of Claims

At any time, the Debtor or Liquidating Trustee, as applicable, may request that the

Bankruptcy Court estimate any contingent or unliquidated Claim or Equity Interests to the extent

permitted by section 502(c) of the Bankruptcy Code regardless of whether the Debtor or

Liquidating Trustee, as applicable, have previously objected to such Claim or Equity Interest or

whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court shall

have jurisdiction to estimate any Claim or Equity Interest at any time during litigation

concerning any objection to such Claim or Equity Interest, including during the pendency of any

appeal relating to any such objection. If the Bankruptcy Court estimates any contingent or

unliquidated Claim or Equity Interest, that estimated amount shall constitute either the Allowed

amount of such Claim or Equity Interest or a maximum limitation on the Claim or Equity

Interest, as determined by the Bankruptcy Court.

If the estimated amount constitutes a maximum limitation on the Claim or Equity

Interest, the Debtor or Liquidating Trustee, as applicable, may elect to pursue supplemental

proceedings to object to the ultimate allowance of the Claim or Equity Interest. All of the

aforementioned objection, estimation and resolution procedures are cumulative and not exclusive

of one another. Claims or Equity Interests may be estimated and subsequently compromised,

settled, withdrawn or resolved by any mechanism approved by the Bankruptcy Court.

7.04 No Distributions Pending Allowance

Notwithstanding any other provision in the Plan, if any portion of a Claim or Equity

Interest is disputed, no payment or Distribution provided under the Plan shall be made on

account of such Claim or Equity Interest unless and until such Disputed Claim or Equity Interest

becomes an Allowed Claim or Allowed or Equity Interest.

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To the extent that a Disputed Claim or Equity Interests ultimately becomes an Allowed

Claim or Equity Interest, Distributions (if any) shall be made to the holder of such Allowed

Claim or Equity Interest in accordance with the provisions of the Plan. Upon allowance, a

holder of the Allowed Disputed Claim or Equity Interest shall receive any Distributions that

would have been made up to the date of allowance to such holder under the Plan had the

Disputed Claim or Equity Interest been allowed on the Effective Date.

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ARTICLE VIII

TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES

8.01 General Treatment: Rejected if not Previously Assumed

Within fourteen (14) days prior to the Confirmation Hearing, the Debtor shall file

and serve a Notice of all contracts and unexpired leases that it intends to assume together

with a Schedule of Cure Amounts for any leases or contracts that will be assumed under

the Plan (the “Cure Schedule”). Any party objecting the proposed cure amount as set

forth in the Cure Schedule shall file an objection within three (3) days prior to the

Confirmation hearing. If no objection is filed, then the proposed cure amount will be

deemed approved. Each Debtor shall have forty-five (45) days from the Effective Date to

supplement the Cure Schedule and the Bankruptcy Court will determine any disputes

regarding. and assign to the Liquidating Trust (the “Assumption Schedule”). Pursuant to

sections 365(a) and 1123(b)(2) of the Bankruptcy Code, upon the Effective Date, all

executory contracts and unexpired leases that exist between the Debtor and any Person or

Entity shall be deemed rejected, unless included on the CureAssumption Schedule or

previously assumed. The Liquidating Trustee shall have sixty (60) days from the Effective

Date to supplement the Assumption Schedule and the Bankruptcy Court will determine

any disputes regarding any cure or rejection damages. Subject to the occurrence of the

Effective Date, entry of the Confirmation Order shall constitute approval of such

assumption or rejection pursuant to section 365(a) of the Bankruptcy Code and a finding

by the Bankruptcy Court that each such assumption or rejection is in the best interests of

the Debtor, the Liquidating TrusteeTrust, their Estate, and all parties in interest in the

Chapter 11 Case.

8.02 Bar to Claims Arising from Rejection, Termination or Expiration

Claims created by the rejection of executory contracts or unexpired leases

(including, without limitation, the rejection provided in herein (“General Treatment;

Rejected if not Previously Assumed”) or the expiration or termination of any executory

contract or unexpired lease prior to the Confirmation Date must be filed with the

Bankruptcy Court and served on the Debtor or Liquidating Trustee, as applicable, no later

than thirty (30) days after (a) the date of the entry of any order of the Bankruptcy Court

authorizing rejection, with respect to any executory contract or unexpired lease rejected by

the Debtor or otherwise pertaining to such order, or (b) the Confirmation Date, with respect

to any executory contract or unexpired lease that is deemed rejected pursuant hereto

(“General Treatment; Rejected if not Previously Assumed”).

Any rejection claim for which a proof of claim is not filed and served within the

time provided herein will be forever barred from assertion and shall not be enforceable

against the Debtor, or the Estate, assets, properties, or interests in property, or the

Liquidating Trustee, or the Estate, assets, properties, or interests in property. Nothing

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contained herein shall be deemed an admission by the Debtor that such rejection gives rise

to or results in a Claim or shall be deemed a waiver by the Debtor or the Liquidating

Trustee of any objections to such Claim if asserted.

8.03 Rejection of Executory Contracts and Unexpired Leases

On the Effective Date, the Debtor will reject all of the executory contracts and unexpired

leases not listed on the CureAssumption Schedule.

8.04 Modifications, Amendments, Supplements, Restatements, or Other Agreements.

Unless otherwise provided in the Plan, each executory contract or unexpired lease that is

assumed pursuant to the Plan will include all modifications, amendments, supplements,

restatements, or other agreements that in any manner affect such executory contract or unexpired

lease, and all rights related thereto, if any, including all easements, licenses, permits, rights,

privileges, immunities, options, and any other interests, unless any of the foregoing agreements

has been previously rejected or repudiated, or is rejected or repudiated pursuant to the Plan or

separate motion and Final Order of the Bankruptcy Court.

8.05 Proof of Claim Based on Assumed Executory Contracts or Unexpired Leases

Any and all proofs of claim relating to executory contracts or unexpired leases that have

been assumed in the Chapter 11 Case will be deemed amended and superseded by the amount of

Cure Claim identified in the Plan, the Confirmation Order or other order of the Bankruptcy Court

authorizing assumption of executory contracts to the Debtor or the Liquidating Trustee.

8.06 Cure of Defaults for Assumed Executory Contracts and Unexpired Leases

All Allowed Cure Claims will be satisfied by the Debtor by payment of the Cure in Cash

to (i) holders of such Cure Claims or on the Effective Date or as soon as reasonably practicable

thereafter, or (ii) on such other terms as may be either ordered by the Bankruptcy Court or

agreed by the Debtor and the applicable contract counter-party without any further notice to or

action, order, or approval of the Bankruptcy Court. Any provisions or terms of executory

contracts or unexpired leases to be assumed and assigned pursuant to the Plan that are, or may

be, alleged to be in default, shall be satisfied solely by the Cure, or by an agreed-upon waiver of

the Cure.

8.07 Effect of Confirmation Order

Entry of the Confirmation Order will constitute a finding of adequate assurance of future

performance by the Liquidating Trustee within the meaning of section 365 of the Bankruptcy

Code. Any objections relating to adequate assurance of future performance, or any other matters

relating to the assumption and assignment of executory contracts and unexpired leases (other

than Cure Claim disputes) must be asserted as an objection to confirmation of the Plan.

Assumption of any executory contract or unexpired lease pursuant to the Confirmation Order or

other order of the Bankruptcy Court will limit the Claims of any such contract counter-party to

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the (i) Allowed Cure Claim and (ii) Claims for ongoing performance under the unexpired lease

or executory contract by Reorganized Debtor pursuant to section 365(k) of the Bankruptcy Code.

8.08 Indemnification and Reimbursement

Subject to the occurrence of the Effective Date, all Allowed Claims against the Debtor

for indemnification, defense, reimbursement, or limitation of liability of current or former

directors, officers, or employees of the Debtor against any Claims, costs, liabilities or causes of

action as provided in the Debtor’s operating agreement, bylaws, other organizational documents,

or applicable law, shall, to the extent such indemnification, defense, reimbursement, or limitation

is owed in connection with one or more events or omissions occurring before the Petition Date,

be paid only to the extent of any applicable insurance coverage. Nothing contained in the Plan

shall affect the rights of partners, managers, directors, officers or employees under any insurance

policy or coverage with respect to such Claims, costs, liabilities or Causes of Action or limit the

rights of the Debtor or the Debtor’s Estate to object to or otherwise contest or challenge Claims

or rights asserted by any current or former partner, manager, officer, director or employee of the

Debtor.

ARTICLE IX

CONDITIONS PRECEDENT TO THE EFFECTIVE DATE

9.01 Conditions Precedent

The following are conditions precedent to the Effective Date that must be satisfied or

waived by the Debtor:

i. The Successful Bidder pursuant to the Sale Approval Order shall have been 

awarded to a Successful Bid that provides sufficient Sale Proceeds for the

Debtor to perform under the terms proposed in this Plan;

ii. i. The Court shall have entered the Confirmation Order in form and substance

acceptable to the Debtor confirming and approving the Plan in all respects;

iii. ii. There shall be no stay or injunction in effect with respect to the

Confirmation Order;

iv. iii. The Plan Documents shall be in a form and substance reasonably acceptable

to the Debtor, and have been duly executed and delivered; provided, however,

that no party to any such agreements and instruments, may unreasonably

withhold its execution and delivery of such documents to prevent this condition

precedent from occurring.

9.02 Waiver

Notwithstanding the foregoing conditions, the Debtor reserves, in its sole discretion, the

right to waive the occurrence of any condition precedent or to modify any of the foregoing

conditions precedent. Any such written waiver of a condition precedent set forth in the Plan

may be effected at any time, without notice, without leave or order of the Bankruptcy Court, and

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without any formal action other than proceeding to consummate the Plan. Any actions required

to be taken on the Effective Date or Confirmation Date (as applicable) shall take place and shall

be deemed to have occurred simultaneously, and no such action shall be deemed to have

occurred prior to the taking of any other such action.

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ARTICLE X

EFFECT OF CONFIRMATION; INDEMNIFICATION,

INJUNCTIVE AND RELATED PROVISIONS

10.01 Compromise and Settlement

Pursuant to section 363 of the Bankruptcy Code and Bankruptcy Rule 9019, and in

consideration for the Distributions and other benefits provided pursuant to the Plan, the

provisions of the Plan shall constitute a good faith compromise of all Claims and Equity

Interests. The entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval

of the compromise or settlement of all Claims and Equity Interests, as well as a finding by the

Bankruptcy Court that such compromises or settlements are fair, equitable, reasonable and in the

best interests of the Debtor, the Estate and holders of Claims and Equity Interests.

10.02 Binding Effect

Subject to the occurrence of the Effective Date, on and after the Confirmation Date, the

provisions of the Plan shall bind the Debtor, Liquidating Trust, and any holder of a Claim

against, or Equity Interest in, such Debtor and such holder’s respective successors and assigns,

whether or not the Claim or Equity Interest of such holder is Impaired under the Plan and

whether or not such holder has accepted such Plan.

10.03 Discharge of Claims

Except as provided herein, the rights afforded in the Plan and the payments and

Distributions to be made hereunder shall discharge all existing debts, Claims and Equity

Interests, of any kind, nature, or description whatsoever against or in the Debtor or any of its

assets or properties to the fullest extent permitted by section 1141 of the Bankruptcy Code.

Except as provided herein, upon the Effective Date, all existing Claims against and Equity

Interests in the Debtor shall be, and shall be deemed to be, discharged and terminated, and all

holders of Claims and Equity Interests shall be precluded and enjoined from asserting against the

Liquidating Trust, its successors or assignees, or any of its assets or properties, any other or

further Claim or Equity Interest based upon any act or omission, transaction, or other activity of

any kind or nature that occurred prior to the Effective Date, whether or not such holder has filed

a proof of claim or proof of equity interest, and whether or not the facts or legal bases therefore

were known or existed prior to the Effective Date. Upon the Effective Date, all such persons

shall be forever precluded and enjoined, pursuant to section 524 of the Bankruptcy Code, from

prosecuting or asserting against each Reorganized Debtor any such discharged Claim against or

Equity Interest in the Debtor.

10.04 Discharge of Debtor

Pursuant to section 1141(d)(3) of the Bankruptcy Code, Confirmation of the Plan will not

discharge Claims against the Debtor; provided, however, that no Holder of any Claim or Equity

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Interest may, on account of such Claim or Equity Interest, seek or receive any payment or other

Distribution from, or seek recourse against, any of the Estate, the Liquidating Trust, the

Liquidating Trustee, and/or their respective successors, assigns and/or property, except as

expressly provided in the Plan.

10.05 Exculpation

Notwithstanding anything contained herein the contrary, Genovese Joblove &

Battista, P.A. (and its respective employees, attorneys, professionals and agents) shall

neither have nor incur any liability relating to the Chapter 11 Case to any Entity for any

and all Claims and Causes of Action arising after the applicable Petition Date and through

the Effective Date, including any act taken or omitted to be taken in connection with, or

related to, formulating, negotiating, preparing, disseminating, implementing,

administering, confirming or consummating the Plan or distributing property thereunder,

the Disclosure Statement, or any other contract, instrument, release or other agreement or

document created or entered into in connection with the Plan or any other post-petition act

taken or omitted to be taken in connection with the Chapter 11 Case; provided, however,

that the foregoing provisions of this Article shall have no effect on the liability of any Entity

that results from any such act or omission that is determined in a Final Order to have

constituted gross negligence, fraud or willful misconduct.

10.06 Limitations on Exculpation

Nothing in the Plan shall be construed to release or exculpate any Person from, or require

indemnification of any Person against losses arising from criminal conduct, intentional

unauthorized misuse of confidential information that causes damages, or limit the liability of the

professionals of the Debtor to the Debtor pursuant to Rule 4-1.8(h) of the Florida Rules of

Professional Conduct (“Limiting Liability for Malpractice”).

10.07 Injunction

From and after the Effective Date, all Entities are permanently enjoined from

commencing or continuing in any manner against the Debtor, the Liquidating Trust, the Estate,

and their successors and assigns, and their assets and properties, as the case may be, any suit,

action or other proceeding, on account of or respecting any Claim or Equity Interest, demand,

liability, obligation, debt, right, Cause of Action, interest or remedy released or satisfied or to be

released or satisfied pursuant to the Plan or the Confirmation Order.

Except as otherwise expressly provided for in the Plan or in obligations issued pursuant

to the Plan, from and after the Effective Date, all Entities shall be precluded from asserting

against the Debtor, the Liquidating Trust, the Estate, and their successors and assigns and their

assets and properties, any other Claims or Equity Interests based upon any documents,

instruments, or any act or omission, transaction or other activity of any kind or nature that

occurred prior to the Effective Date, solely to the extent that (a) such Claims or Equity Interests

have been released or satisfied pursuant to the Plan or the Confirmation Order or (b) such

Claims, Equity Interests, actions or assertions of Liens relate to property that will be distributed

pursuant to the Plan or the Confirmation Order.

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The rights afforded in the Plan and the treatment of all Claims and Equity Interests in the

Plan shall be in exchange for and in complete satisfaction of Claims and Equity Interests against

the Debtor or any of its assets or properties solely to the extent that (a) such Claims or Equity

Interests have been released or satisfied pursuant to the Plan or the Confirmation Order or (b)

such Claims, Equity Interests, actions or assertions of Liens relate to property that will be

distributed pursuant to the Plan or the Confirmation Order. On the Effective Date, all such

Claims against, and Equity Interests in, the Debtor shall be satisfied and released in full.

Except as otherwise expressly provided for in the Plan or in obligations issued pursuant

to the Plan, all Persons and Entities are permanently enjoined, on and after the Effective Date, on

account of any Claim or Equity Interest satisfied and released pursuant to the Plan or

Confirmation Order, from:

i. commencing or continuing in any manner any action or other proceeding of

any kind against the Debtor, the Liquidating Trust, the Estate and their

successors and assigns and their assets and properties;

ii. enforcing, attaching, collecting or recovering by any manner or means any

judgment, award, decree or order against the Debtor, the Liquidating Trust, the

Estate and their successors and assigns and their assets and properties;

iii. creating, perfecting or enforcing any encumbrance of any kind against the

Debtor, the Liquidating Trust, the Estate and their successors and assigns and

their assets and properties; and

iv. commencing or continuing in any manner any action or other proceeding of

any kind in respect of any Claim or Equity Interest or Cause of Action released

or settled hereunder).

10.08 Release of Liens

Except as otherwise provided in the Plan or in any contract, instrument, release or other

agreement or document created pursuant to the Plan, on the Effective Date, all mortgages, deeds

of trust, Liens, pledges or other security interests against property of the Estate distributed under

the Plan shall be fully released and discharged and all of the right, title and interest of any holder

of such mortgages, deeds of trust, Liens, pledges or other security interest shall revert to the

Liquidating Trust.

ARTICLE XI

RETENTION OF JURISDICTION

Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective

Date, the Bankruptcy Court shall, after the Effective Date, retain such jurisdiction over the

Chapter 11 Case and all Entities with respect to all matters related to the Chapter 11 Case, the

Debtor, the Liquidating Trust, and the Plan as is legally permissible, including, without

limitation, jurisdiction to:

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(i) i. allow, disallow, determine, liquidate, classify, estimate or establish the

priority or secured or unsecured status of any Claim against or Equity Interest in the Debtor,

including the resolution of any request for payment of any Administrative Claim and the

resolution of any and all objections to the allowance or priority of Claims or Equity Interest;

(ii) ii. grant, deny or otherwise resolve any and all applications of

Professionals or Persons retained in the Chapter 11 Case by the Debtor for allowance of

compensation or reimbursement of expenses authorized pursuant to the Bankruptcy Code or the

Plan, for periods ending on or before the Effective Dates;Date;

(iii) iii. resolve any matters related to the assumption, assignment or rejection

of any executory contract or unexpired leases to which a Debtor is party or with respect to which

a Debtor may be liable and to hear, determine and, if necessary, liquidate, any Claims arising

therefrom;

(iv) iv. ensure that Distributions to holders of Allowed Claims or Equity

Interests are accomplished pursuant to the provisions of the Plan, including by resolving any

disputes regarding, as applicable, the Debtor’s or Liquidating Trust’s entitlement to recover

assets held by third parties;

(v) v. decide or resolve any motions, contested or litigated matters (including

but not limited to any adversary proceeding) and any other matters and grant or deny any

applications involving the Debtor that may be pending on the Effective Date or instituted by the

Liquidating TrusteeTrust after the Effective Date;

(vi) vi. enter such orders as may be necessary or appropriate to implement or

consummate the provisions of the Plan and all other contracts, instruments, releases, indentures

and other agreements or documents adopted in connection with the Plan or the Disclosure

Statement;\

(vii) vii. issue injunctions, enforce them, enter and implement other orders or

take such other actions as may be necessary or appropriate to restrain interference by any Entity

with the Effective Date or enforcement of the Plan, except as otherwise provided in the Plan;

(viii) viii. enforce Articles within thethis Plan;

(ix) ix. resolve any cases, controversies, suits or disputes with respect to the

injunction and other provisions contained in the PlanArticle XI, and enter such orders as may be

necessary or appropriate to implement or enforce all such releases, injunctions and other

provisions;

(x) x. resolve any issues or matters related to the Liquidating Trust;

(xi) xi. enter and implement such orders as necessary or appropriate if the

Confirmation Order is modified, stayed, reversed, revoked or vacated;

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(xii) xii. resolve any other matters that may arise in connection with or related

to the Plan, the Disclosure Statement, the Confirmation Order, or any contract, instrument,

release, indenture or other agreement or document adopted in connection with the Plan or the

Disclosure Statement; and

(xiii) xiii. enter an order and a Final Decree closing the Chapter 11 Case.

ARTICLE XII

RISK FACTORS IN CONNECTION WITH THE AMENDED PLAN

The holders of Claims against and Equity Interests in the Debtor should read and

carefully consider the following risk factors, as well as the other information set forth in this

Disclosure Statement (and the documents delivered together herewith), before deciding whether

to vote to accept or reject the Plan. These risk factors should not, however, be regarded as

constituting the only risks associated with the Plan and their implementation.

12.01 Business Risk

The holders of Claims should consider the following business risk factors associated with

the Plan:

i. The Plan contemplates that the will be able to sell the Property pursuant to the 

Sale Approval Order for a minimum sales price of $22 million. If the Debtor is

unable to secure such a transaction, either pursuant to the terms of the Sale

Approval Order (as is defined in the Plan ) or otherwise, the Debtor may elect to

seek dismissal or conversion of its bankruptcy case pursuant to section 1112 of

the Bankruptcy Code.

ii. i. The Debtor may not close on the sale of the Property; and

iii. ii. The Debtor may not realize the Sale Proceeds contemplated by the Waterfall

Analysis if (i) a Competing Bid Contract is deemed the Successful Bidder’s and

the Purchase Price approved by the Bankruptcy Court is less than the Purchase

Price in the Contract presently approved by the Bankruptcy Court in the Sale

Approval Order [ECF No. 106] of $25,500,000; or (ii) LV Midtown is deemed

to be the Successful Bidder pursuant to its 363K Bid which does not provide for

a cash recovery by the Debtor; or (iii) the Surcharge Contribution from LV

Midtown’s collateral is not applied by the Bankruptcy Court as set forth in the

Amended Plan.

12.02 Bankruptcy Risk

Although the Debtor believes the Plan will satisfy all requirements necessary for

confirmation by the Bankruptcy Court, there can be no assurance that the Bankruptcy Court will

confirm the Plan as proposed. Moreover, there can be no assurance that modifications of the

Plan will not be required for confirmation or that such modifications would not necessitate the

re-solicitation of votes.

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12.03 Failure to Close on Sale of Property

The Plan provides for the transfer of the Property to the Successful Bidder as set forth in

the Sale Approval Order [ECF No. 106]. In the event that the Auction contemplated by the Sale

Approval Order does result in the sale of the Property to a Successful Bidder or Back-Up Bidder,

then Debtor will not proceed with confirmation of the Plan. Additionally, the Debtor may not be

able to consummate the Plan (or may need to amend the Plan) if a Competing Bid Contract is

deemed the Successful Bidder’s and the Purchase Price approved by the Bankruptcy Court is less

than the Purchase Price in the Contract presently approved by the Bankruptcy Court in the Sale

Approval Order [ECF No. 106] of $25,500,000.Amended Plan contemplates that the will be able

to sell the Property pursuant to the Sale Approval Order for a minimum sales price of $22

million. If the Debtor is unable to secure such a transaction, either pursuant to the terms of the

Sale Approval Order (as is defined below) or otherwise, the Debtor may elect to seek dismissal

or conversion of its bankruptcy case pursuant to section 1112 of the Bankruptcy Code. . The

Auction is currently scheduled for Wednesday, August 25. 2021 at 11:00 a.m. If the Auction

results in a Purchase Price less than $25,500,000,22,000,000, the Debtor may elect not to

proceed with the confirmation of the Plan.

12.04 Rejection of Amended Plan

Classes 2, 3, 4 and 5 under the Plan are the only Classes that are entitled to vote to accept

or reject the Plan. If the requisite acceptances are not received by at least one Impaired Class,

the Debtor will not be able to seek confirmation of the Plan under section 1129(b) of the

Bankruptcy Code, because at least one Impaired Class will not have voted in favor of the Plan as

required by section 1129(a)(10) of the Bankruptcy Code. In addition, the Debtor may seek to

accomplish an alternative restructuring of its capitalization and obligations to creditors and

obtain acceptances to an alternative plan of reorganization for the Debtor, or otherwise, the

Debtor may be required to liquidate the Estate under chapter 7 or 11 of the Bankruptcy Code.

There can be no assurance that the terms of any such alternative restructuring arrangement or

plan would be similar to or as favorable to the Debtor’s creditors and equity holders as those

proposed in the Plan.

12.05 No Duty to Update Disclosures

The Debtor has no duty to update the information contained in this Disclosure Statement

as of the date hereof, unless otherwise specified herein, or unless the Debtor is required to do so

pursuant to an order of the Bankruptcy Court. Delivery of the Disclosure Statement after the

date hereof does not imply that the information contained herein has remained unchanged.

12.06 Representations Outside the Disclosure Statement

This Disclosure Statement contains representations concerning or related to the Debtor

and the Plan that are conditionally approved by the Bankruptcy Code and the Bankruptcy Court.

Please be advised that any representations or inducements outside this Disclosure Statement and

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any related documents which are intended to secure your acceptance or rejection of the Plan

should not be relied upon by holders of Claims that are entitled to vote to accept or reject the

Plan.

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12.07 Tax and Other Related Considerations

A discussion of potential tax consequences of the Plan is provided below; however, the

content of this Disclosure Statement is not intended and should not be construed as tax, legal,

business or other professional advice. Holders of Claims and/or Equity Interests should seek

advice from their own independent tax, legal or other professional advisors based on their own

individual circumstances.

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ARTICLE XIII

MISCELLANEOUS PROVISIONS

13.01 Modification of Amended Plan

Subject to the limitations contained in the Amended Plan, the Debtor reserves the right in

its sole discretion, in accordance with the Bankruptcy Code and the Bankruptcy Rules to amend

or modify the Plan prior to the entry of the Confirmation Order, including amendments or

modifications to satisfy section 1129(b) of the Bankruptcy Code; provided, however, that (1) any

pre-Confirmation Date amendments shall not materially or adversely affect the interests, rights

or treatment of any Allowed Claims or Equity Interests under the Plan as required under and in

accordance with Section 1127 of the Bankruptcy Code or applicable Bankruptcy Rules; and (2)

after the entry of the Confirmation Order, the Liquidating Trustee may, upon order of the

Bankruptcy Court, amend or modify the Plan, in accordance with section 1127(b) of the

Bankruptcy Code, or remedy any defect or omission or reconcile any inconsistency in the Plan in

such manner as may be necessary to carry out the purpose and intent of the Plan.

13.02 Revocation of Amended Plan

The Debtor reserves the right in its sole discretion to revoke or withdraw the Plan prior to

the entry of the Confirmation Order, and to file subsequent chapter 11 plans. If the Debtor

revokes or withdraws the Plan or if entry of the Confirmation Order or the Effective Date does

not occur, then: (1) the Plan shall be null and void in all respects; and (2) nothing contained in

the Plan shall: (a) constitute a waiver or release of any Claims by or against, or any Equity

Interests in, the Debtor or any other Entity; (b) prejudice in any manner the rights of either of the

Debtor or any other Entity; or (c) constitute an admission of any sort by either of the Debtor or

any other Entity.

13.03 Binding Effect

On the Effective Date, the provisions of the Plan shall bind any holder of a Claim against,

or present or former direct or indirect holder of an Equity Interest in, the Debtor and such

holder’s respective successors and assigns, whether or not the Claim or Equity Interest of such

holder is Impaired under the Plan, whether or not such holder has accepted the Plan and whether

or not such holder is entitled to a Distribution under the Plan.

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13.04 Successors and Assigns

The rights, benefits and obligations of any Entity named or referred to herein shall be

binding on, and shall inure to the benefit of, any heir, executor, administrator, successor or

assign of such Entity.

13.05 Governing Law

Except to the extent that the Bankruptcy Code or Bankruptcy Rules apply, unless

otherwise stated, and subject to the provisions of any contract, instrument, release, indenture or

other agreement or document entered into in connection herewith, the rights and obligations

arising hereunder shall be governed by, and construed and enforced in accordance with, the laws

of the State of Florida without giving effect to the principles of conflict of laws thereof.

13.06 Reservation of Rights

The Plan shall have no force or effect unless and until the Effective Date occurs. Neither

the filing of the Plan, any statement or provision contained therein, nor the taking of any action

by the Debtor or any Entity with respect to the Plan shall be or shall be deemed to be an

admission or waiver of any rights of: (1) any Debtor with respect to the holders of Claims or

Equity Interests or other parties-in-interest; or (2) any holder of a Claim or other party-in-interest

prior to the Effective Date.

13.07 Section 1125(e) Good Faith Compliance

Confirmation of the Plan shall act as a finding by the Bankruptcy Court that the Debtor

and its representatives have acted in “good faith” under sections 1125(e) and 1129(a)(3) of the

Bankruptcy Code.

13.08 Further Assurances

The Debtor, all holders of Claims receiving Distributions hereunder, and all other parties

in interest shall, from time to time, prepare, execute and deliver any agreements or documents

and take any other actions as may be necessary or advisable to effectuate the provisions and

intent of the Plan or the Confirmation Order.

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13.09 Service of Documents

Any pleading, notice or other document required herein to be served on or delivered to

the Debtor shall be sent by both email and first class, certified U.S. mail, postage prepaid as

follows:

If before the Effective Date under the Amended Plan, to:

AVENTURA HOTEL PROPERTIES, LLC

c/o HES Group

Attn: Francisco Arocha

1001 S.W Second Avenue

Suite 300

Miami, Florida 33130

GENOVESE JOBLOVE & BATTISTA, P.A.

Attn: Jesus M. Suarez

100 SE 2nd Street, 44th Floor

Miami, FL 33131

Telephone: (305) 349-2300

Facsimile: (305) 349-2310

Email: jsuarez@gjb-law.com

If after the Effective Date under the Amended Plan, to:

______________________

Liquidating Trustee

13.10 Filing of Additional Documents

On or before the Effective Date, the Debtor may file with the Bankruptcy Court all

agreements and other documents that may be necessary or appropriate to effectuate and further

evidence the terms and conditions hereof.

13.11 No Stay of Confirmation Order

The Debtor shall request that the Court waive stay of enforcement of the Confirmation

Order otherwise applicable, including pursuant to Federal Rules of Bankruptcy Procedure

3020(e), 6004(h) and 7062.

13.12 Automatic Stay

The automatic stay provided for under section 362 of the Bankruptcy Code shall remain

in effect in the Chapter 11 Case until the Effective Date.

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ARTICLE XIV

CONFIRMATION REQUIREMENTS

14.01 Standard to Confirm a Plan

In order for the Plan to be confirmed, the Bankruptcy Code requires that the Bankruptcy

Court determine that the Plan complies with the technical requirements of chapter 11 of the

Bankruptcy Code and that the disclosures concerning such Plan have been adequate and have

included information concerning all payments made or promised in connection with such Plan

and these Chapter 11 Case. The Bankruptcy Code also requires that: (1) the Plan be accepted by

the requisite votes of Creditors except to the extent that confirmation despite dissent is available

under Bankruptcy Code section 1129(b); (2) the Plan is feasible (that is, there is a reasonable

probability that the Debtor will be able to perform its obligations under its Plan without needing

further financial reorganization not contemplated by such Plan); and (3) the Plan is in the “best

interests” of all Creditors in that Chapter 11 Case (that is, Creditors will receive at least as much

under such Plan as they would receive in a hypothetical liquidation case under chapter 7 of the

Bankruptcy Code). To confirm each such Plan, the Bankruptcy Court must find that all of the

above conditions are met, unless the applicable provisions of Bankruptcy Code section 1129(b)

are employed to confirm such Plan, subject to satisfying certain conditions, over the dissent or

deemed rejections of Classes of Claims.

Set forth below is a summary of the relevant statutory confirmation requirements.

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(a) Best Interest Test

Each Holder of a Claim or Interest in an Impaired Class must either (i) accept the Plan or

(ii) receive or retain under such Plan Cash or property of a value, as of the Effective Date of such

Plan, that is not less than the value such Holder would receive or retain if the Debtor were

liquidated under chapter 7 of the Bankruptcy Code. The Bankruptcy Court will determine

whether the Cash and property issued under such Plan to each Holder of a Claim or Interest

equals or exceeds the value that would be allocated to such Holders in a liquidation under

chapter 7 of the Bankruptcy Code (the “Best Interests Test”).

(b) Liquidation Analysis

For purposes of the Best Interest Test, in order to determine the amount of liquidation

value available to Creditors, the Debtor has prepared a liquidation analysis (the “Liquidation

Analysis”), which concludes that in a Chapter 7 liquidation, holders of pre-petition unsecured

Claims would receive less of a recovery than the recovery they would receive under the Plan.

This conclusion is premised upon the assumptions set forth in the Liquidation Analysis, which

the Debtor believes is reasonable. The Debtor’s Liquidation Analysis is attached as Exhibit “A”

hereto. The Debtor believes the Holders of Claims against and Equity Interests in the Debtor

will have an equal or greater recovery as a result of an orderly chapter 11 liquidation as

discussed herein and under the Plan than could be realized in a chapter 7 liquidation for the

Debtor for the following reasons.

To determine the value that a Holder of a Claim or Interest in an Impaired Class would

receive if the Debtor were liquidated under chapter 7, the Bankruptcy Court must determine the

aggregate dollar amount that would be generated from the liquidation of the Debtor’s Property if

the Debtor’s Chapter 11 Case had been converted to chapter 7 liquidation cases and the Debtor’s

Property were liquidated by a chapter 7 trustee (the “Liquidation Value”). The Liquidation

Value would consist of the net proceeds from the disposition of the Debtor’s Assets, augmented

by Cash held by the Debtor and reduced by certain increased costs and Claims that arise in a

chapter 7 liquidation case that do not arise in a chapter 11 reorganization case.

As explained below, the Liquidation Value available for satisfaction of Claims and

Equity Interests in the Debtor would be reduced by: (a) the costs, fees and expenses of the

liquidation under chapter 7, which would include disposition expenses and the compensation of a

trustee and his or her counsel and other professionals retained, (b) the fees of the chapter 7

trustee, and (c) certain other costs arising from conversion of the Chapter 11 Case to chapter 7.

Here, the Debtor believes that Holders of Allowed General Unsecured Claims will clearly

benefit from the reorganization of the Debtor under the terms of the Plan.

Moreover, under the Plan, the Debtor will avoid the increased costs and expenses of a

chapter 7 liquidation, including the fees payable to a chapter 7 trustee and his or her

professionals. The Cash to be distributed to Creditors would be reduced by the chapter 7

trustee’s statutory fee, which is calculated on a sliding scale from which the maximum

compensation is determined based on the total amount of moneys disbursed or turned over by the

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chapter 7 trustee. Bankruptcy Code § 326(a) permits reasonable compensation not to exceed 3%

of the proceeds in excess of $1 million distributable to creditors.6 The chapter 7 trustee’s

professionals, including legal counsel and accountants, would add substantial administrative

expenses that would be entitled to be paid ahead of Allowed Claims and Equity Interests against

the Debtor. These chapter 7 trustee fees would reduce the funds available for distribution to the

Debtor’s Creditors from additional recoveries such as preferential payments, expunged

Administrative Expense Claims and the proceeds of successful Estate litigation or settlement.

It is also anticipated that a chapter 7 liquidation would result in a significant delay in

payments being made to Creditors. Bankruptcy Rule 3002(c) provides that conversion of a

chapter 11 case to chapter 7 will trigger a new bar date for filing claims against the Debtor, and

that the new bar date will be 90 days after the first date set for the meeting of creditors called

under section 341 of the Bankruptcy Code. Not only would a chapter 7 liquidation delay

distribution to Creditors, but it is possible that additional claims that were not asserted in the

Chapter 11 Case, or were late-filed, could be filed against the Debtor. Reopening the bar date in

connection with conversion to chapter 7 would provide these and other claimants an additional

opportunity to file claims against the Estate.

For the reasons set forth above, the Debtor believes that the Plan provides a superior

recovery for Holders of Claims and Interests, and the Plan meet the requirements of the Best

Interests Test.

(c) Feasibility

In connection with confirmation of the Plan, the Bankruptcy Court will be required to

determine that the Plan is feasible pursuant to Section 1129(a)(11) of the Bankruptcy Code.

Therefore, even if the Plan is accepted by each Class of Claims and Interests voting on the Plan,

and even if the Bankruptcy Court determines that the Plan satisfy the Best Interests Test, the

Bankruptcy Code requires that, in order for the Plan to be confirmed by the Bankruptcy Court, it

must be demonstrated that consummation of the Plan is not likely to be followed by the

liquidation or the need for further financial reorganization of the Debtor.

The Plan proposes the liquidation of the Debtor and a wind down of its business and

operational affairs. The Plan is feasible provided the Debtor realizes approximately the Sale

Proceeds contemplated in the Plan and in the Liquidation Analysis. Accordingly, the Debtor

believes that the Plan complies with the financial feasibility standard of Section 1129(a)(11) of

the Bankruptcy Code.

(d) Acceptance by Impaired Class

Bankruptcy Code § 1129(b) provides that a plan can be confirmed even if it has not been

accepted by all impaired classes as long as at least one impaired class of claims has accepted it.

The process by which non-accepting classes are forced to be bound by the terms of a plan is

commonly referred to as “cramdown.” The Bankruptcy Court may confirm the Plan at the

6 Bankruptcy Code § 326(a) permits a chapter 7 trustee to receive 25% of the first $5,000 distributed to creditors, 

10% of additional amounts up to $50,000, 5% of additional distributions up to $1 million and reasonable 

compensation up to 3% of distributions in excess of $1 million.

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request of the Debtor notwithstanding either the Plan’s rejection (or deemed rejection) by

impaired classes as long as such Plan “does not discriminate unfairly” and is “fair and equitable”

as to each impaired class that has not accepted it. A plan does not discriminate unfairly within

the meaning of the Bankruptcy Code if a dissenting class is treated equally with respect to

classes of equal rank.

A class of claims under a plan accepts the plan if the plan is accepted by creditors that

hold at least two-thirds in amount and more than one-half in number of the allowed claims in the

class that actually vote on the plan. A class of interests accepts the plan if the plan is accepted

by holders of interests that hold at least two-thirds in amount of the allowed interests in the class

that actually vote on a plan.

A class that is not “impaired” under a plan is conclusively presumed to have accepted the

plan. Solicitation of acceptances from such a class is not required. A class is “impaired” unless

(i) the legal, equitable and contractual rights to which a claim or interest in the class entitles the

holder are not modified, or (ii) the effect of any default is cured and the original terms of the

obligation are reinstated.

A plan is fair and equitable as to a class of secured claims that rejects the plan if the plan

provides (i)(a) that the holders of claims included in the rejecting class retain the liens securing

those claims, whether the property subject to those liens is retained by the debtor or transferred

to another entity, to the extent of the allowed amount of such claims, and (b) that each holder of

a claim of such class receives on account of that claim deferred cash payments totaling at least

the allowed amount of that claim, of a value, as of the effective date of the plan, at least equal to

the value of the holder’s interest in the estate’s interest in such property; (ii) for the sale, subject

to Bankruptcy Code § 363(k), of any property that is subject to the liens securing the claims

included in the rejecting class, free and clear of the liens, with the liens to attach to the proceeds

of the sale, and the treatment of the liens on proceeds under clause (i) or (ii) of this paragraph; or

(iii) for the realization of the indubitable equivalent of such claims.

A plan is fair and equitable as to a class of unsecured claims that rejects the plan if the

plan provides (i) for each holder of a claim included in the rejecting class to receive or retain on

account of that claim property that has a value, as of the effective date of the plan, equal to the

allowed amount of such claim, or (ii) that the holder of any claim or interest that is junior to the

claims of such rejecting class will not receive or retain on account of such junior claim or

interest any property at all.

A plan is fair and equitable as to a class of equity interests that rejects a plan if the plan

provides (i) that each holder of an interest included in the rejecting class receive or retain on

account of that interest property that has a value, as of the effective date of the plan, equal to the

greater of the allowed amount of any fixed liquidation preference to which such holder is

entitled, any fixed redemption price to which such holder is entitled, or the value of such interest,

or (ii) that the holder of any interest that is junior to the interest of such rejecting class will not

receive or retain under the plan on account of such junior interest any property at all. The

Debtor believes the Plan to be both fair and equitable.

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 166 of 171
ARTICLE XV

ALTERNATIVES TO THE AMENDED PLAN

In the event the Plan is not confirmed or consummated, then the alternatives are as

follows:

15.01 Liquidation Pursuant to Chapter 7 of the Bankruptcy Code

The Debtor could be liquidated under chapter 7 of the Bankruptcy Code. The Debtor

believes that liquidation would result in lower aggregate distributions being made to creditors

than those provided for in the Plan, which is demonstrated by the Liquidation Analysis discussed

above and attached as Exhibit “A” to the Disclosure Statement.

15.02 Alternative Amended Plan of ReorganizationLiquidation

The Debtor believes that failure to confirm the Plan will lead inevitably to an expensive

and protracted Chapter 11 Case. In formulating and developing the Plan, the Debtor have

explored numerous other alternatives and engaged in an extensive negotiating process with LV

Midtown.

The Debtor believes that not only dodoes the Amended Plan fairly adjust the rights of

various Classes of Claims, but also that the Amended Plan provides superior recoveries to the

Debtor’s creditors over any alternative capable of rational consideration (such as a chapter 7

liquidation), thus enabling many stakeholders to maximize their returns. Rejection of the Plan in

favor of some alternative method of reconciling the Claims and Interests will require, at the very

least, an extensive and time consuming process (including the possibility of protracted and costly

litigation) and will not result in a better recovery for any Class of Claims or Interests.

THE DEBTOR BELIEVES THAT CONFIRMATION OF THE PLAN IS

PREFERABLE TO ANY ALTERNATIVE BECAUSE THE PLAN MAXIMIZES THE

AMOUNT OF DISTRIBUTIONS TO ALL HOLDERS OF CLAIMS AND INTERESTS AND

ANY ALTERNATIVE TO CONFIRMATION OF THE PLAN WILL RESULT IN

SUBSTANTIAL DELAYS IN THE DISTRIBUTION OF ANY RECOVERIES.

THEREFORE, THE DEBTOR RECOMMENDS THAT ALL HOLDERS OF IMPAIRED

CLAIMS ENTITLED TO VOTE ON THE PLAN VOTE TO ACCEPT THE PLAN.

15.03 Dismissal of the Chapter 11 Case

Dismissal of the Debtor’s Chapter 11 Case would have the effect of restoring (or

attempting to restore) all parties to the status quo ante. Upon dismissal of the Debtor’s Chapter

11 Case, the Debtor would lose the protection of the Bankruptcy Code, thereby requiring, at the

very least, an extensive and time consuming process of negotiation with the creditors of the

Debtor, and possibly resulting in costly and protracted litigation in various jurisdictions. The

Debtor believes that these actions would seriously undermine its ability to obtain financing and

could lead ultimately to the liquidation of the Debtor under chapter 7 of the Bankruptcy Code.

Therefore, the Debtor believes that dismissal of the Debtor’s Chapter 11 Case is not a viable

alternative to the Plan.

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 167 of 171
ARTICLE XVI

CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE AMENDED PLAN

The following discussion summarizes certain federal income tax consequences expected

to result from the consummation of the Plan. This discussion is only for general information

purposes and only describes the expected tax consequences to Holders entitled to vote on the

Plan. It is not a complete analysis of all potential federal income tax consequences and does not

address any tax consequences arising under any state, local or foreign tax laws or federal estate

or gift tax laws. This discussion is based on the Internal Revenue Code of 1986, as amended,

Treasury Regulations promulgated thereunder, judicial decisions, and published rulings and

administrative pronouncements of the IRS, all as in effect on the date of the Disclosure

Statement. These authorities may change, possibly retroactively, resulting in federal income tax

consequences different from those discussed below. No ruling has been or will be sought from

the IRS, and no legal opinion of counsel will be rendered, with respect to the matters discussed

below. There can be no assurance that the IRS will not take a contrary position regarding the

federal income tax consequences resulting from the consummation of the Plan or that any

contrary position would not be sustained by a court.

This discussion does not address all federal income tax considerations that may be

relevant to a particular Holder in light of that Holder’s particular circumstances or to Holders

subject to special rules under the federal income tax laws, such as financial institutions,

insurance companies, brokers, dealers or traders in securities, commodities or currencies,

tax-exempt organizations, tax-qualified retirement plans, partnerships and other pass-through

entities, foreign corporations, foreign trusts, foreign Estate, Holders who are not citizens or

residents of the U.S., Holders subject to the alternative minimum tax, and Holders who have a

functional currency other than the U.S. dollar.

HOLDERS SHOULD CONSULT THEIR TAX ADVISORS REGARDING THE U.S.

FEDERAL INCOME TAX CONSEQUENCES TO THEM OF THE CONSUMMATION OF

THE PLAN, AS WELL AS ANY TAX CONSEQUENCES ARISING UNDER ANY STATE,

LOCAL OR FOREIGN TAX LAWS, OR ANY OTHER FEDERAL TAX LAWS.

TO COMPLY WITH INTERNAL REVENUE SERVICE CIRCULAR 230,

TAXPAYERS ARE HEREBY NOTIFIED THAT (a) ANY DISCUSSION OF U.S.

FEDERAL TAX ISSUES IN THE DISCLOSURE STATEMENT IS NOT INTENDED OR

WRITTEN TO BE USED, AND CANNOT BE USED BY ANY TAXPAYER, FOR THE

PURPOSE OF AVOIDING PENALTIES THAT MAY BE IMPOSED ON A TAXPAYER

UNDER THE INTERNAL REVENUE CODE, (b) ANY SUCH DISCUSSION IS

WRITTEN IN CONNECTION WITH THE PROMOTION OR MARKETING OF THE

TRANSACTIONS OR MATTERS ADDRESSED HEREIN, AND (c) TAXPAYERS

SHOULD SEEK ADVICE BASED ON THEIR PARTICULAR CIRCUMSTANCES

FROM AN INDEPENDENT TAX ADVISOR.

Payments of interest, dividends and certain other payments are generally subject to

backup withholding at the applicable withholding rate unless the payee of such payment

furnishes such payee’s correct taxpayer identification number (social security number or

employer identification number) to the payor. The Debtor may be required to withhold the

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 168 of 171
applicable percentage of any payments made to a Holder who does not provide his, her or its

taxpayer identification number. Backup withholding is not an additional tax, but an advance

payment that may be refunded to the taxpayer by the IRS to the extent that the backup

withholding results in an overpayment of tax by such taxpayer in such taxable year.

In accordance with the Plan, each Holder of an Allowed General Unsecured Claim

against the Debtor shall be entitled to receive his, her or its Distributions under the Plan. Each

Holder of an Allowed General Unsecured Claim may recognize gain or loss upon receipt of such

Distributions equal to the difference between the “amount realized” by such Creditor and such

Creditor’s adjusted tax basis in his, her or its Claim. The amount realized is equal to the value of

such Creditor’s Distributions. Any gain or loss realized by an Unsecured Creditor should

constitute ordinary income or loss to such creditor unless such Claim is a capital asset in the

hands of such Unsecured Creditor. If a Claim is a capital asset and it has been held for more

than one year, such Creditor may realize long-term capital gain or loss.

The federal income tax consequences to such Creditors may differ and will depend on

factors specific to each such Creditor, including, but not limited to: (i) whether the Creditor’s

Claim (or a portion thereof) constitutes a Claim for principal or interest, (ii) the origin of the

Creditor’s Claim, (iii) the type of consideration received by the Creditor in exchange for the

Claim, (iv) whether the Creditor is a United States person or a foreign person for United States

federal income tax purposes, (v) whether the Creditor reports income on the accrual or cash basis

method, and (vi) whether the Creditor has taken a bad debt deduction or otherwise recognized a

loss with respect to the Claim.

THERE ARE MANY FACTORS THAT WILL DETERMINE THE TAX

CONSEQUENCES TO EACH SUCH CREDITOR OR EQUITY INTEREST HOLDER.

FURTHERMORE, THE TAX CONSEQUENCES OF THE PLAN IS COMPLEX AND IN

SOME CASES UNCERTAIN. THEREFORE, IT IS IMPORTANT THAT EACH

CREDITOR AND EQUITY INTEREST HOLDER OBTAIN HIS, HER OR ITS OWN

PROFESSIONAL TAX ADVICE REGARDING THE TAX CONSEQUENCES TO SUCH

CREDITOR AS A RESULT OF THE PLAN

THE FOREGOING DISCUSSION OF FEDERAL INCOME TAX CONSIDERATIONS

IS FOR GENERAL INFORMATION PURPOSES ONLY AND IS NOT TAX ADVICE. EACH

HOLDER SHOULD CONSULT ITS OWN TAX ADVISOR REGARDING THE FEDERAL,

STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF THE PLAN DESCRIBED

HEREIN. NEITHER THE DEBTOR NOR ITS PROFESSIONALS WILL HAVE ANY

LIABILITY TO ANY PERSON OR HOLDER ARISING FROM OR RELATED TO THE

FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF THE PLAN OR

THE FOREGOING DISCUSSION.

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Case 21-12374-RAM Doc 117 Filed 08/16/21 Page 169 of 171
ARTICLE XVII

CONCLUSION

The Debtor believes that confirmation and implementation of the Plan is preferable

because they will provide the greatest recovery to Holders of Claims and Equity Interests. Other

alternatives do not include the Investment Guarantee Amount or the Exit Financing, and could

involve significant delay, uncertainty and substantial administrative costs and are likely to

reduce any return to creditors who hold Claims and holders of Equity Interests. The Debtor urges

the Holders of Claims and Equity Interests who are entitled to vote on the Plan to vote to accept

the Plan.

Dated: August 11,16, 2021

AVENTURA HOTEL

PROPERTIES, LLC

By: /s/ Francisco Arocha 

Name: Francisco Arocha

Title: Manager

GENOVESE JOBLOVE & BATTISTA, P.A.

Counsel for Aventura Hotel Properties, LLC, the

Debtor-in-Possession

100 SE 2nd Street, 44th Floor

Miami, FL 33131-2100

Telephone: (305) 349-2300

Facsimile: (305) 349-2310

By: /s/ Jesus M. Suarez

Jesus M. Suarez

Fla. Bar No. 60086

jsuarez@gjb-law.com

John H. Genovese

Fla. Bar No. 280852

jgenovese@gjb-law.com

Barry P. Gruher

Fla. Bar No. 960993

bgruher@gjb-law.com

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