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 16, 2021

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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 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.

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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 NONBANKRUPTCY 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 

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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 

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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.

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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..............................................................................4

(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

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(a) Administrative Claims.............................................................................................17

(b) Professional Fee Claims ..........................................................................................18

(c) Priority Tax Claims .................................................................................................18

(d) Statutory Fees..........................................................................................................18

(e) Summary of Treatment of Claims, Equity Interests and Estimated Recoveries. .......19

(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 ...........................................................................24

(e) Corporate Action .....................................................................................................26

(f) Costs and Expenses .................................................................................................26

(g) Compensation of the Liquidating Trustee ................................................................26

(h) Retention of Professionals .......................................................................................26

(i) Tax Consequences of Liquidating Trust...................................................................26

(j) Duration ..................................................................................................................27

(k) Indemnification .......................................................................................................27

(l) Bond........................................................................................................................28

(m) Resignation, Death or Removal ...............................................................................28

(n) Transfer of Assets Free and Clear of all Liens, Claims and Encumbrances...............29

ARTICLE V 

PRESERVATION OF CAUSES OF ACTION......................................................................29

5.01 Transfer of Causes of Action ...................................................................................29

5.02 No Release of Any Claim or Causes of Action.........................................................29

5.03 Summary and Disclosure of Causes of Action .........................................................30

5.04 Summary and Disclosure of Causes of Action .........................................................32

ARTICLE VI 

PROVISIONS GOVERNING DISTRIBUTIONS.................................................................32

6.01 Manner of Cash Payments Under the Amended Plan ...............................................32

6.02 Entity Making Distribution ......................................................................................32

6.03 Distribution Dates....................................................................................................33

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6.04 Record Date for Distributions..................................................................................33

6.05 Delivery of Distributions.........................................................................................33

6.07 Compliance with Tax Requirements........................................................................34

6.08 No Payments of Fractional Dollars..........................................................................34

6.09 Interests on Claims..................................................................................................35

6.10 No Distribution in Excess of Allowed Amount of Claims........................................35

6.11 Setoff and Recoupment............................................................................................35

6.12 De Minimis Distributions; Charitable Donations......................................................35

6.13 Withholding of Distributions ...................................................................................36

6.14 Distributions in Satisfaction; Allocation ..................................................................36

6.15 No Distributions on Late-Filed Claims ....................................................................36

ARTICLE VII 

DISPUTED CLAIMS..............................................................................................................36

7.01 Resolution of Disputed Claims ................................................................................36

7.02 Objection Deadline..................................................................................................37

7.03 Estimation of Claims...............................................................................................37

7.04 No Distributions Pending Allowance .......................................................................37

ARTICLE VIII 

TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES...............38

8.01 General Treatment: Rejected if not Previously Assumed..........................................38

8.02 Bar to Claims Arising from Rejection, Termination or Expiration............................38

8.03 Rejection of Executory Contracts and Unexpired Leases .........................................38

8.04 Modifications, Amendments, Supplements, Restatements, or Other Agreements. ....39

8.05 Proof of Claim Based on Assumed Executory Contracts or Unexpired Leases.........39

8.06 Cure of Defaults for Assumed Executory Contracts and Unexpired Leases..............39

8.07 Effect of Confirmation Order...................................................................................39

8.08 Indemnification and Reimbursement .......................................................................39

ARTICLE IX 

CONDITIONS PRECEDENT TO THE EFFECTIVE DATE..............................................40

9.01 Conditions Precedent...............................................................................................40

9.02 Waiver.....................................................................................................................40

ARTICLE X 

EFFECT OF CONFIRMATION; INDEMNIFICATION, 

INJUNCTIVE AND RELATED PROVISIONS....................................................................41

10.01 Compromise and Settlement ....................................................................................41

10.02 Binding Effect .........................................................................................................41

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10.03 Discharge of Claims ................................................................................................41

10.04 Discharge of Debtor ................................................................................................41

10.05 Exculpation .............................................................................................................42

10.06 Limitations on Exculpation......................................................................................42

10.07 Injunction ................................................................................................................42

10.08 Release of Liens......................................................................................................43

ARTICLE XI 

RETENTION OF JURISDICTION .......................................................................................43

ARTICLE XII 

RISK FACTORS IN CONNECTION WITH THE AMENDED PLAN...............................45

12.01 Business Risk ..........................................................................................................45

12.02 Bankruptcy Risk ......................................................................................................45

12.03 Failure to Close on Sale of Property.........................................................................46

12.04 Rejection of Amended Plan .....................................................................................46

12.05 No Duty to Update Disclosures................................................................................46

12.06 Representations Outside the Disclosure Statement...................................................46

12.07 Tax and Other Related Considerations.....................................................................47

ARTICLE XIII 

MISCELLANEOUS PROVISIONS.......................................................................................47

13.01 Modification of Amended Plan................................................................................47

13.02 Revocation of Amended Plan ..................................................................................47

13.03 Binding Effect .........................................................................................................47

13.04 Successors and Assigns ...........................................................................................48

13.05 Governing Law........................................................................................................48

13.06 Reservation of Rights ..............................................................................................48

13.07 Section 1125(e) Good Faith Compliance .................................................................48

13.08 Further Assurances..................................................................................................48

13.09 Service of Documents..............................................................................................49

13.10 Filing of Additional Documents...............................................................................49

13.11 No Stay of Confirmation Order................................................................................49

13.12 Automatic Stay........................................................................................................49

ARTICLE XIV

CONFIRMATION REQUIREMENTS .................................................................................50

14.01 Standard to Confirm a Plan......................................................................................50

(a) Best Interest Test.....................................................................................................50

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(b) Liquidation Analysis ...............................................................................................50

(c) Feasibility................................................................................................................52

(d) Acceptance by Impaired Class.................................................................................52

ARTICLE XV 

ALTERNATIVES TO THE PLAN........................................................................................53

15.01 Liquidation Pursuant to Chapter 7 of the Bankruptcy Code......................................53

15.02 Alternative Plan of Reorganization ..........................................................................53

15.03 Dismissal of the Chapter 11 Case ............................................................................54

ARTICLE XVI

CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE PLAN ......................54

ARTICLE XVII CONCLUSION ...........................................................................................56

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 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 Plan includes both the 

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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 twothirds (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 & Battista, P.A., 100 

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 14 of 69
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S.E. Second Street, 44th Floor, Miami, FL 33131, Attn: Jesus M. Suarez, telephone: (305) 349-

2300, email: jsuarez@gjb-law.com.

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

 

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.

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 15 of 69
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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. 

2.02 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. 

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 16 of 69
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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

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 17 of 69
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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 COVID19 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 COVID19 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 reflects 

that beginning in March 2020, occupancies began to plummet and by late March, the U.S. hotel 

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 18 of 69
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industry had effectively come to a halt. According to an STR3report, 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 in 

 

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.

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 19 of 69
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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 benefit for the 

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 20 of 69
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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.

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 21 of 69
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(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”)5that 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 carveout/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. 

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 22 of 69
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(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 cobrokers.

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”).

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 23 of 69
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On July 29, 2021, the Court granted the Sale Motion, Approved the Contract with Integra 

(the “Sale Approval 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 was given in 

accordance with Bankruptcy Rule 2002, and no other or further notice was

required and any requirements for other or further notice were 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 was been afforded to all parties-in-interest.

c. The bidding procedures set forth in 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 the Sale Approval Order 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, 

jsuarez@gjb-law.com, by 5:00 p.m. on August 23, 2021 (the “Bid Deadline”), in 

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 24 of 69
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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 

increments above the highest and best Qualified Bid accepted at the time of the 

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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; 

however the Debtor does not believe it will be able to consummate the Plan if the Successful 

Bid is less than approximately $22 million. 

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 26 of 69
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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 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. 

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 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 

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 27 of 69
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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 postconfirmation 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, 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 

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 28 of 69
19

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) 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 

$20,468,837.91

92.5% as 

pursuant to LV 

Settlement 

Agreement, 

providing that 

(i) LV 

Midtown will 

accept 

$19,600,000; 

and (ii) 

contribute 

$800,000 of its 

collateral as a 

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 29 of 69
20

Class Treatment of Claims and Interests

Estimated 

Aggregate 

Claims

Estimated 

Percentage 

Recovery

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.

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 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

$10,597,709.81

0%.

Claim is 

disputed in its 

entirety.

Class 4: 

Allowed 

In full satisfaction, settlement, release, extinguishment and 

discharge of each such Allowed General Unsecured Claim, $4,759,570.81 Unknown

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 30 of 69
21

Class Treatment of Claims and Interests

Estimated 

Aggregate 

Claims

Estimated 

Percentage 

Recovery

General 

Unsecured 

Claims

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

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 

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 

Unknown Unknown

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Class Treatment of Claims and Interests

Estimated 

Aggregate 

Claims

Estimated 

Percentage 

Recovery

Trustee has paid or reserved for all obligations of the 

Liquidating Trust and has established the Liquidating Trust 

Reserve in connection therewith.

(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 

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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.

(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.

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(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. 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 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 

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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.

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 

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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, 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 

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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 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 

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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 

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 

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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.

(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 

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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 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 

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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.

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.

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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;

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 

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 

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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

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 

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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 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 

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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.

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 

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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.

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 that it intends to assume 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 Assumption 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 Trust, 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 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 Assumption Schedule.

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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 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 

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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. 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. There shall be no stay or injunction in effect with respect to the Confirmation 

Order;

iv. 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 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 

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 

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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) 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;

(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) 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 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. The Debtor may not close on the sale of the Property; and

iii. 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 resolicitation 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 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 $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 

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.

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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48

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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49

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.

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 59 of 69
50

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.

(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.

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 60 of 69
51

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 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.

 

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.

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 61 of 69
52

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 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 

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 62 of 69
53

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.

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 Liquidation

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 does 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.

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 63 of 69
54

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.

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, taxqualified 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.

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 64 of 69
55

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 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 

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 65 of 69
56

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.

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 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

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 66 of 69
EXHIBIT A- LIQUIDATION ANALYSIS 

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 67 of 69
$                           22,000,000.00 Sale Proceeds

$                                 Broker Fee (330,000.00)$                                   Broker Expenses (Estimated) (15,000.00)$                                 Document Stamps ‐ Subject to S (267,800.00) ection 1146 Recovery

$                                (646,177.92) Class 1 Secured Real Estate Tax Claim (Estimate)

$                                 2019 Tax Certificates ( 2019 E 218,890.50 stimated)$                                 2020 Taxes 206,715.50$                                 2021 Taxes (Estimate) 220,571.92

$                          (20,500,000.00) Class 2 Secured Claim  of LV Midtown

$                                 241,022.08 Gross Cash from Sale Proceeds

$                                  Surcharge Contribution from L 800,000.00 V Midtown

$                                                ‐US Trustee Fee (205,000.00) s

$                                                ‐Debtor's Attor (250,000.00) neys Fees (Net Estimate)

$                                  Section 1146(a) Recovery 267,800.00

Unknown QR Triptych Surcharge 

$                                  Available Cash 853,822.08

$                                 241,022.08

Cash Subject to Avoidance Litigation /                         

Class 3 Disputed Secured Claim of QR Triptych

$                                  Surcharge Contribution 800,000.00$                                                ‐US Trustee Fee (205,000.00) s

$                                                ‐Debtor's Attor (250,000.00) neys Fees (Net Estimate)

$                                  Section 1146(a) Recovery 267,800.00

$                                  Unencumbered Cash 612,800.00

$                              4,759,570.00 Class 5 General Unsecured Claims (Subject to Reconciliation

Unknown Proceeds from Litigation Claims

13% Projected  Recovey to Class 5 GUC's from Unencumbered C

In re Aventura Hotel Properties, LLC

Chapter 11 Liquidation Analysis

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 68 of 69
$                           22,000,000.00 Sale Proceeds

$                                 Broker Fee (Est 3%) (660,000.00)$                                   Broker Expenses (Estimated) (25,000.00)$                                 Document Stamps (267,800.00)$                                (646,177.92) Class 1 Secured Real Estate Tax Claim (Estimate)

$                                 2019 Tax Certificates ( 2019 E 218,890.50 stimated)$                                 2020 Taxes 206,715.50$                                 2021 Taxes (Estimate) 220,571.92

$                          (20,500,000.00) Class 2 Secured Claim  of LV Midtown

$                                  (98,977.92) Gross Cash from Sale Proceeds$                                                Surcharge Contr ‐ ibution from LV Midtown

$                                                ‐Chapter 7 Trus (698,250.00) tee Fees (Max)

$                                                ‐Chapter 7 Prof (150,000.00) essional Fees $                                                ‐Chapter 11 Adm (250,000.00) in Fees (Subordinated to Ch 7 Fee

$                                                Section 1146(a) ‐  Recovery

$                                                QR Triptych Sur ‐ charge 

$                            (1,197,227.92) Available Cash

$                            (1,197,227.92)

Cash Subject to Avoidance Litigation /                         Class 3 Disputed Secured Claim of QR Triptych

$                                                Unencumbered Ca ‐ sh

$                              Class 5 General Unsecured Claims  4,759,570.00 (Subject to Reconciliation

Unknown Proceeds from Litigation Claims

0% Projected  Recovey to Class 5 GUC's from Unencumbered C

In re Aventura Hotel Properties, LLC

Chapter 7 Liquidation Analysis

Case 21-12374-RAM Doc 116 Filed 08/16/21 Page 69 of 69