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November 25, 2021 – The Debtor filed a Third Amended Plan and a related Disclosure Statement (the Plan attached as Exhibit A to the Disclosure Statement) and blacklines of each showing changes to the versions filed on November 3, 2021 [Docket No. 196]. The revised Plan documents include a considerably more evolved understanding of how the longstanding dispute betwwen the Debtors and Benefit Street Partners ("BSP") will play out; with BSP's motion to terminate exclusivity for the moment rejected based on the Debtor's inclusion in its own solicitation documents of a term sheet in respect of BSP's alternative Plan (and significantly toned down disclosure as to BSP's conduct prior to, and during, bankruptcy.
UPDATE: On December 1, 202, the Court hearing the 96 Wythe Acquisition cases issued an order approving (i) the adequacy of the Debtor's Disclosure Statement, (ii) Plan solicitation and voting procedures and (iii) a timetable culminating in a January 27, 2022 Plan confirmation hearing [Docket No. 204].
The Court has now also approved the appointment of an examiner (the significance of which the Debtor had sought to minimize in the previous draft of the Disclosure Statement) on November 8th and the subsequent agreement of the parties as to the appointment of a mediator (Judge Chapman). There is also significant new disclosure as to treatment of some of the Debtor's larger claims (ie OES Williamsburg Hotel LLC and FIA Heritage) and the Debtor's contention that certain further claims, if allowed, are covered by insurance arrangements.
BSP's alternative Plan would have the Debtor's assets auctioned/sold (BSP to play credit bidding stalking horse); with BSP to provide $10.0mn in cash "to fund creditors’ recoveries, such that if the Asset sale proceeds (the 'Sale Proceeds') are ultimately insufficient to pay holders of Allowed Claims against the Debtor, creditors can get paid from the Lender Contribution." See further on BSP term sheet below.
New language in the Disclosure Statement includes:
"A hearing to consider the Termination Motion was held on November 5, 2021, during which, subject to providing certain relief to BSP, the Court denied the [exclusivity] Termination Motion. At this hearing the Court ruled that a copy of BSP’s term sheet for an alternative Chapter 11 plan proposal (the ‘BSP Term Sheet’) be attached to the Disclosure Statement, a copy of which annexed hereto as Exhibit H. A discussion of the BSP Term Sheet and the parties respective positions regarding such is set forth below.
Both BSP and the Debtor have agreed to the appointment of a mediator. The Honorable Shelley C. Chapman, United States Bankruptcy Judge for the Southern District of New York, has agreed to serve as mediator, with an expected mediation to begin in December. The parties expect an order to this effect will be entered shortly."
Overview of the Plan
The Third Amended Disclosure Statement now notes: "The Plan Sponsor shall contribute $9,000,000.00 to the Reorganized Debtor upon the Effective Date, $7,562,000.00 of which shall be paid as a capital contribution as provided in Section 3.2(g) above. In addition, and as set forth more fully in the Disclosure Statement, while the Debtor and the Management Company dispute any allegations made with respect to the PPP Loans and believe such claims are baseless, the Debtor and Management Company have agreed to settle any and all claims, if any, relating to the PPP Loans pursuant to the PPP Settlement and the PPP Stipulation. Pursuant to the PPP Settlement, which is approved herein, the Management Company has agreed to defer repayment of over $2,000,000.00 in claims for fees due to the Management Company through the Plan’s Effective Date, until after all Allowed Claims have been paid, and the Plan Sponsor has agreed to infuse an additional 1,438,000.00 to the Reorganized Debtor (for a total payment of $9,000,000.00 including such infusion and capital contribution of $7,562,000.00) which shall be earmarked as a settlement payment (together with deferral of debt by the Management Company) pursuant to the PPP Settlement. The PPP Stipulation will provide as a further back-stop as it requires, among other things, the Management Company to guaranty the settlement payment.
The Plan will be implemented by and through proceeds of the $9,000,000.00 in cash from the Plan Sponsor to be funded upon the Effective Date as part of the PPP Settlement and the Equity Infusion, any cash otherwise held by the Debtor upon the Effective Date, and ongoing income from the Debtor’s operations. The Reorganized Debtor will continue to operate from and after the Effective Date. The Plan Sponsor’s cash infusion and the income generated by the Debtor’s and the Reorganized Debtor’s operations will be used to fund operating expenses and to pay the amounts necessary to fund the Plan payments. The Plan Sponsor shall designate the managing member of the Debtor upon the Effective Date.
Pursuant to section 1123 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 and settlement of all Claims, Interests, and controversies relating to the contractual, legal, and subordination rights that a holder of a Claim or Interest may have with respect to any Allowed Claim or Interest or to any distribution to be made on account of such Allowed Claim or Interest, including, but not limited to, the PPP Settlement and the PPP Stipulation. The entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the compromise or settlement of all such Claims, Interests, and controversies, as well as a finding by the bankruptcy Court that such compromise or settlement is in the best interests of the Debtor, its estate, and holders of Claims and Interests and is fair, equitable, and reasonable.
As of the Effective Date, pursuant to the provisions of sections 1141(b) and (c) of the Bankruptcy Code, all property, assets, and effects of the Debtor (including the Hotel) shall vest in the Reorganized Debtor free and clear of all Claims and Interests except as otherwise expressly provided in the Plan. The post-Confirmation Debtor will be owned by 96 Wythe New Acquisition LLC. Toby Moskovits and Michael Lichtenstein are the operating members and managers of 96 Wythe New Acquisition LLC. Lockwood Development Partners will be a preferred equity holder of 96 Wythe New Acquisition LLC.
The BSP Alternative Plan
The BSP term sheet provides: "The Lender Plan is an alternative to the Debtor Plan that permits the Debtor’s Hotel and assets to be market-tested and sold by a reputable and professional broker in an orderly manner as a going concern business (i.e., not a ‘forced liquidation’) for the benefit of all creditors with certain contributions to be made by the Lender for the benefit of creditors as would be set forth more fully in the Lender Plan. The Debtor’s Assets will be sold (the 'Sale Transaction') as a going concern at an auction (the 'Auction') conducted under Bankruptcy Court-approved bidding procedures (the 'Bidding Procedures').
The successful bidder shall enter into an agreement to purchase the Hotel and other Assets. The Lender agrees to be the 'Stalking Horse Bidder' by providing a baseline “credit bid” under sections 363 and 1123(a)(5) of the Bankruptcy Code and subject to the Auction. The Lender will be entitled to credit bid up to the full amount of the Lender’s Allowed Claim at the Auction.
The Lender shall have an Allowed Claim in an amount equal to and on the terms set forth in the Lender’s Proof of Claim, Number 8, filed in this Chapter 11 Case (as such claim may be amended). The Lender’s Allowed Claim shall be paid either by (i) closing on the purchase of the Assets via credit bid at the Auction, or (ii) payment in cash from sale proceeds of the Auction upon closing of the sale of the Assets to a third party purchaser.
The Lender Plan shall be administered by an independent person (the 'Plan Administrator”') to, among other things, make distributions, administer claims and bring potential litigation for the benefit of creditors against (among others) the Debtor’s insiders. The Lender will make a payment of $10,000,000 in cash (the 'Lender Contribution') to fund creditors’ recoveries, such that if the Asset sale proceeds (the 'Sale Proceeds') are ultimately insufficient to pay holders of Allowed Claims against the Debtor, creditors can get paid from the Lender Contribution. The Lender Contribution and the Sale Proceeds (together, the 'Lender Plan Funding') will be used to pay creditors and otherwise fund the Lender Plan. The Lender Contribution will be made on the effective date of the Lender Plan (the 'Effective Date'). If Sale Proceeds are sufficient to pay all Allowed Claims in full (excluding Subordinated Claims), the Lender Contribution paid by the Lender on the Effective Date to fund payments under the Lender Plan will be reimbursed to the Lender.
Pending the completion of the Auction and consummation of the Sale Transaction, the Plan Administrator shall continue to operate the Hotel and, in doing so, engage a Hotel manager. The costs and expenses of continuing to operate the Hotel shall be funded by the Lender through the use of its cash collateral pursuant to a budget acceptable to the Lender and the Plan Administrator."
The following is an updated summary (amendments in bold) of classes, claims, voting rights and expected recoveries (defined terms are as defined in the Plan and/or Disclosure Statement, see also the Liquidation Analysis below:
- Class 1 (“Priority Claims”) is unimpaired and not entitled to vote on the Plan. The estimated recovery is 100%.
- Class 2 (“BSP Claims”) is impaired and entitled to vote on the Plan ["Solely for purposes of voting, BSP shall be permitted to vote on account of the BSP Disputed Claim and the BSP Undisputed Claim"]. The BSP claims are held by Benefit Street Partners Realty Operating Partnership, L.P. and BSPRT 2018-FL3 Issuer, Ltd. The aggregate amount of claims is $70.7mn [BSP argues it has a $90.0mn claim] and the [Debtor's] estimated recovery is 100.0%. Treatment: Class 2 Secured Claim includes the Allowed Claim of BSP, which is impaired under the Plan. The BSP Undisputed Claim shall be Allowed in the amount of $70.7 million. The Debtor disputes the balance of any claims held by BSP, including the BSP Disputed Claim, and such claims shall be subject to the Debtor’s right to seek subordination, disallowance, expungement, dismissal, and/or further agreement by and between the Debtor and BSP. BSP asserts that it is owed at least $90 million.
With respect to the BSP Undisputed Claim, subject to the Reorganized Debtor’s right to pre-pay all or part of the BSP Undisputed Claim (and any portion of the BSP Disputed Claim that becomes an Allowed Claim) at any time without penalty, the BSP Undisputed Claim and the balance of any additional Allowed Claim amount of the BSP Disputed Claim shall be paid in full, together with interest to be paid as follows: (i) the Reorganized Debtor shall pay BSP equal monthly payments of interest only at a rate of 4.5% per annum commencing on the Effective Date for four (4) years; (ii) commencing on the fourth (4th) anniversary of the Effective Date, the Reorganized Debtor shall pay interest at a rate of 5% per annum for an additional two (2) years; and (iii) on the sixth (6th) anniversary of the Effective Date, the Reorganized Debtor shall make a final payment consisting of the balance of the BSP Undisputed Claim. In addition, on the Effective Date, the Reorganized Debtor shall (a) contribute $3 million into an interest account to serve as the Interest Reserve for the Reorganized Debtor’s payments on account of the BSP Undisputed Claim, which such account shall be established at a third-party bank selected by the Debtor in its sole discretion and drawn on by the Reorganized Debtor to pay BSP interest payments in full or partially in the event that the Reorganized Debtor has not paid the required monthly interest payment in full or partially by the twentieth (20th) of the month when such payment becomes due; and (b) pre-pay BSP the first two (2) monthly interest payments required to be paid under clause (i) above, such that on the Effective Date, the Reorganized Debtor shall pay BSP a total of the first two (2) monthly interest payments as provided hereunder.
With respect to the BSP Disputed Claim, upon a Final Order adjudicating the BSP Disputed Claim or by written agreement between the Debtor or Reorganized Debtor (as applicable) and BSP, and subject to the Debtor’s right to seek (and BSP’s right to oppose) an estimation of such claim pursuant to section 502(c) of the Bankruptcy Code, the Debtor shall make additional distributions to BSP as follows: (i) in the event that amounts due to BSP are adjudicated by Final Order or by written agreement between the Debtor or Reorganized Debtor (as applicable) and BSP to be in an amount that exceeds the BSP Undisputed Claim amount and if the BSP Disputed Claim is not subject to subordination, such additional Allowed Claim amounts shall receive the funds in the Interest Disputed Claim Reserve corresponding to the interest payments otherwise payable on account of any such additional Allowed Claim amount, with ongoing interest payments from the time of such adjudication to be paid pursuant to the treatment of the BSP Undisputed Claim, and the balance of such additional Allowed Claim amounts to be paid on the sixth (6th) anniversary of the Effective Date (with the balance of the BSP Undisputed Claim); and (ii) any excess amounts held in the Interest Disputed Claim Reserve above the amounts required for distributions to BSP under the Plan and as provided herein, shall be released to the Reorganized Debtor, free and clear of any liens, claims, and encumbrances.
Subject to the Debtor’s right to seek (and BSP’s right to oppose) an estimation of the BSP Disputed Claim, any payments otherwise due to BSP on account of the BSP Disputed Claim shall be paid into the Interest Disputed Claim Reserve, concurrently with the payment of distributions to BSP on account of the BSP Undisputed Claim, and shall be subject to further Bankruptcy Court determination with respect to the allowance of the BSP Disputed Claim. Except as provided for in the Plan, which shall control in all respects, including with regard to payment terms, default terms, or any terms on pre-payment or refinance, all terms of the Loan Agreement and related documents that cover the BSP Claims and collateral securing the BSP Claims shall apply, including, but not limited to, BSP’s security interests and mortgage as set forth in the Consolidation, Modification, Spreader and Extension Agreement between the Debtor and BSP, dated December 13, 2017. BSP disputes this treatment and intends to object to confirmation of the Plan. The Debtor believes this treatment is proper and consistent with the requirements under the Bankruptcy Code. The resolution of such objection could have a potentially material impact upon the Plan and the Debtor’s ability to confirm the Plan.
- Class 3 (“Secured Property Tax Claims”) is impaired and entitled to vote on the Plan. The aggregate amount of claims is $3,092,874.62 and the estimated recovery is 100.0%. The Reorganized Debtor shall comply with its obligations under that certain Property Payment Plan as between the Debtor and the relevant Taxing Authority with respect to the payment of real estate taxes, which provides for semi-annual installments in the amount of $443, 2011.41 over a period of ten years. The first installment is due January 1, 2022. The Reorganized Debtor shall pay such amounts as provided for under the Property Payment Plan. Liens shall continue with the same force and effect until such Allowed Secured Property Tax Claim has been paid in full as provided under the Plan.
- Class 4 (“Secured M&M Claims”) is impaired and entitled to vote on the Plan. The aggregate amount of claims is $353,306.00 and the estimated recovery is 100.0%. The Reorganized Debtor shall pay Allowed Secured M&M Claims in full, up to the amount of their Allowed Claim, one-half (1/2) to be paid on the Effective Date and the remainder to be paid with interest (180) days after the Effective Date. Liens shall continue with respect to any Allowed Secured M&M Claim, with the same force and effect until such Allowed Secured M&M Claim has been paid in full as provided under the Plan.
- Class 5 (“Unsecured Claims”) is impaired and entitled to vote on the Plan. The aggregate amount of claims is $1,970,936.00 to $2,570,936.00 and the estimated recovery is 100.0%. Each holder of an Allowed Unsecured Claim will be paid in full, up to the amount of their Allowed Claim, one-half (1/2) to be paid on the Effective Date and the remainder to be paid with interest (180) days after the Effective Date. Although the Debtor’s estimate of Allowed Unsecured Claims is generally the result of the Debtor’s and its advisors’ analysis of reasonably available information, the projected amount of Allowed Unsecured Claims set forth herein is subject to change (either higher or lower). As set forth above, the Debtor will be objecting to certain proofs of claim, and any such objections ultimately could cause the total amount of Allowed Unsecured Claims to change, which could affect the Debtor’s ability to perform its obligations under the Plan.
- Class 6 (“Subordinated Claims”) is impaired, deemed to reject and not entitled to vote on the Plan. Other than with respect to the BSP Disputed Claim, the Debtor does not anticipate there will be any claims in this class. BSP disagrees that there is a valid dispute to any portion of its claim or that any portion of its claim is subject to subordination.
- Class 7 (“Equity Interests”) is impaired, deemed to reject and not entitled to vote on the Plan. All Equity Interests will be cancelled, and the Plan Sponsor will be issued new Interests in the Reorganized Debtor, constituting of 100% ownership of the Reorganized Debtor. In exchange for its Interests in the Reorganized Debtor and as a contribution (and as part of settlement of the PPP loans matter), the Plan Sponsor will contribute $9 million, $7.562 million of which as capital to the Reorganized Debtor. The Plan Sponsor agrees that 96 Wythe Mezz DE LLC, the Debtor’s Mezz Lender, shall receive new Interests in the Reorganized Debtor, which new Interests shall be junior to the new Interests issued to the Plan Sponsor and to any sources of new equity provided to the Reorganized Debtor as part of the Plan. The Mezz Lender will be paid from excess proceeds, if any, upon sale and/or refinance after payment of all Claims under the Plan and expressly as agreed by the Plan Sponsor and the Reorganized Debtor. The Mezz Lender holds rights against the Debtor’s equity, and is not a creditor of the Debtor or the Reorganized Debtor, shall have no voting or approval rights in the Reorganized Debtor, nor hold any position of control over or have any Claims and/or rights against the Debtor, the Reorganized Debtor, and/or any of their respective assets.
The Third Amended Disclosure Statement attached the following exhibits:
- Exhibit A: Chapter 11 Plan
- Exhibit B: Liquidation Analysis
- Exhibit C: Plan Projections
- Exhibit D: Lockwood Letter of Intent
- Exhibit E: PPP Stipulation and Settlement Agreement
- Exhibit F: Projection Detail
- Exhibit G: Performance Report
- Exhibit H: BSP Term Sheet
- Plan Objection Deadline: December 30, 2021
- Voting Deadline: January 18, 2022
- Confirmation Hearing Date: January 27, 2022
On February 23, 2021, the Debtor, the owner of the "Brooklyn-Centric" Williamsburg Hotel in Brooklyn, N.Y., filed for bankruptcy protection with estmated assets of $0 and liabilities of $80.0mn. According to the Debtor's Petition, $68.0mn of the latter sum is owed to BSP which had filed a foreclosure action against the Debtor which effectively precipitated the Debtor's bankruptcy filing.
Exasperated, BSP clearly views the Debtor's management little more able to manage bankruptcy then it was to able manage hotel operations prior to filing, noting in a Court filing as to the Debtor's operational ability: "its business is underperforming its competitors and failing to pay significant operating expenses….These disappointing results are consistent with the operating history of a hotel that opened in late 2016, and was already unable to pay its debt service a full 15 months before the pandemic even began, or repay its mortgage at maturity – again, before the pandemic."
The Debtor’s Petition also lists four “related” affiliate bankruptcy cases pending in the same Court, including 232 Seigel Acquisition LLC (Case No. 20-22845); 232 Seigel Development LLC (Case No. 20-22844); MY2011 Grand LLC (Case No. 19-23957); and S & B Monsey LLC (Case No. 19-23959). The 96 Wythe and 232 Seigel properties are backed by Franklin Templeton-owned Heritage Equity Partners.
In a February 16, 2021 opinion, the Appellate Division of the Supreme Court of the State of New York reversed an April 9, 2020 ruling that denied Benefit Street Partners’ motion for a summary judgment against 96 Wythe in connection with a foreclosure. The opinion states, “Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered April 9, 2020, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion for summary judgment on its foreclosure claim as against defendants 96 Wythe Acquisition LLC, Toby Moskovits [Heritage’s founder and chief executive officer] and Yechiel Michael Lichtenstein, and dismissing defendants’ remaining affirmative defenses and counterclaims, unanimously reversed…and the motion granted.
Plaintiff established prima facie entitlement to summary judgment by producing the mortgage, note and guaranty executed by defendants, and evidence of defendants’ default on their obligations thereunder, including their failure to timely repay the principal balance of the loan… The record does not support defendants’ contention that the waiver of defenses provisions was rendered ineffective because the lender caused or contributed to the loan default. In any event, the defenses and counterclaims were not viable.”
BSP Objection to Disclosure Statement
The BSP objection provided: "Rather than provide the required 'adequate information' to allow creditors to make an informed decision about its Plan, the Disclosure Statement largely consists of a misguided (and disputed) rant about the Debtor’s history with Benefit Street, which omits or distorts many, many ‘facts’. Moreover, for an insider-sponsored Plan that was not subject to any Court-approved marketing test — yet gives Ms. Toby Moskovits and Mr. Michael Lichtenstein the exclusive right to retain control over and profits from the Hotel — the Disclosure Statement contains little, if any, discussion of factors relevant to creditors. This includes meaningful financial information to assess the Hotel’s current and future performance under a Plan that stretches all creditors out for years and leaves the Debtor highly-leveraged…
Among other major short-comings, the Disclosure Statement fails to contain any details on the terms of Benefit Street’s treatment, going-forward loan documentation and collateral other than stating a below market interest rate and extreme six year maturity date. In short, the Disclosure Statement presents creditors with a
misleading, inaccurate and incomplete picture of the Debtor’s history, the proposed treatment of creditors, and the potential risks associated with the Debtor’s plan.
The Disclosure Statement touts the Debtor’s PPP settlement (negotiated by and among the insiders) and de minimis 'equity infusion' that allows the insiders to retain control while dragging the Lender and all other creditors along for years to see potential repayments.And all of this is in the face of repeated bad behavior by these insiders — who (shockingly) benefit from sweeping Plan releases. Neither the value of consideration provided for the Plan’s releases, nor the basis for this insider-sponsored, insider-released Plan, nor any of the readily available alternatives — other than a fictitious and false ‘fire sale liquidation’ — are discussed."
Motion to Dismiss
On October 13th, the Court hearing the 96 Wythe Acquisition case issued an order denying a motion to convert (or dismiss) filed by the U.S. Trustee assigned to the case [Docket No. 142, which we covered separately], with the Court holding in a short 2-page order that “the UST has not carried the burden of proof with respect to the Motion and that it and the Joinder should be denied, without prejudice to renewal upon materially changed circumstances and, with respect to the Joinder, the provision of due notice.”
The U.S. Trustee William Harrington, who has recently traded blows with presiding Judge Robert Drain in the Purdue cases, took particular umbrage at (i) the Debtor's recent claims that its employees actually work for a third-party management company (and the sudden production of a previously undisclosed management agreement to back up that assertion…with the suspect provenance of that document compunded by the failure to produce further requested supporting documents…and the existence of an earlier 2017 management agreement) and (ii) the Debtor's alleged siphoning of "millions of dollars from debtor-in-possession accounts to third party accounts, beyond the scrutiny of the Court" (with the inferrence being that those "non-authorized" accounts are controlled by the same individuals who otherwise own and control the Debtor).
BSP, whose attempts to recover part of the $68.0mn it is owed by the Debtor through a foreclosure action precipitated the Debtor's bankruptcy filing in the first place, had filed a joinder [Docket No. 127] noting: "the individuals managing the Debtor and the Hotel Manager (who are one and the same) have acted dishonestly and engaged in clear (and potentially unlawful) self-dealing. Such apparent mismanagement and dishonesty mandates the appointment of a trustee (whether under Chapter 7 or Chapter 11)."
The Debtor fired back an objection to the motion to convert [Docket No. 124] arguing that the U.S. Trustee was focusing on "discreet, technical" mis-steps in an order "derail" efforts of a Debtor that has already filed a Plan and is valiantly operating its viable, COVID-stricken business: "Despite the unprecedented effects of the ongoing COVID-19 pandemic that severely curtailed the Debtor’s operations early on, and continues to wreak havoc on the hospitality industry as a whole, the Hotel is open and fully operational – operating profitably and exceeding financial projections.
Specifically, the Debtor, through its advisors, has finalized terms for its plan of reorganization [Dkt. 115] (the “Plan”), which includes the infusion of $8 million in new money (coupled with the over $2 million in cash the Debtor anticipates as of the effective date of the Plan, for a total of $10 million), forming the predicate for its Plan filed on September 20, 2021, and emergence from Chapter 11, while preserving the going concern value of the Hotel (which is significantly greater than in a forced liquidation).
Notwithstanding the Debtor’s current profitability and plan for emergence (the hearing on approval of the Debtor’s disclosure statement has been set for November 5, 2021, with a proposed confirmation date of December 13, 2021), the UST curiously seeks to derail all of that by converting the Chapter 11 Case to a forced liquidation under Chapter 7 or dismissing the Chapter 11 Case…. Here, the sole basis for cause cited by the UST is the purported ‘gross mismanagement’ of the estate under § 1112(b)(4)(B). As an initial matter, however, such allegation of gross mismanagement is belied by the fact that the Debtor is running a profitable hospitality business during a global pandemic while formulating the Plan to reorganize and emerge from Chapter 11 protection. Further, and notwithstanding, in alleging mismanagement, the UST relies on discreet, technical discrepancies that have no effect on the estate or Chapter 11 Case…"
Liquidation Analysis (see Docket No. 196, Exhibit B for notes)
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