Art and Architecture Books of the 21st Century and 400 S. La Brea, LLC, a California limited liabilit

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RON BENDER (SBN 143364)
BETH ANN R. YOUNG (SBN143945)
KURT RAMLO (SBN 166856)
KRIKOR J. MESHEFEJIAN (SBN 255030)
LEVENE, NEALE, BENDER, YOO & BRILL L.L.P.
10250 Constellation Boulevard, Suite 1700
Los Angeles, California 90067
Telephone: (310) 229-1234; Facsimile: (310) 229-1244
Email: rb@lnbyb.com; bry@lnbyb.com; kr@lnbyb.com; kjm@lnbyb.com
Attorneys for Chapter 11 Debtor and Debtor in Possession
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
(LOS ANGELES DIVISION)
In re:
ART AND ARCHITECTURE BOOKS
OF THE 21ST CENTURY, dba ACE
GALLERY,
Debtor and Debtor in Possession.
Case No. 2:13-bk-14135-RK
Chapter 11
Order Authorizing Debtor to Exercise
Purchase Option and Enter into Agreement
with Los Angeles County Metropolitan
Transportation Authority for Purchase and
Sale of Real Property Located at 9430 Wilshire
Boulevard, Beverly Hills, California 90212 and
to Enter into Related Transactions Pursuant to
11 U.S.C. §363; and Granting Related Relief
Dates of Hearing: May 21 and 28, 2015
Time: 9:00 a.m.
Place: Courtroom 1675
255 East Temple Street
Los Angeles, California 90012
On May 21, 2015 at 9:00 a.m. and May 28, 2015 at 9:00 a.m., in Courtroom 1675, located
in the Roybal Federal Building at 255 East Temple Street, Los Angeles, California 90012, the
Court held a hearing (the “Sale Hearing“) on the motion (the “Motion”) filed by Art and
Architecture Books of the 21st Century, doing business as Ace Gallery, chapter 11 debtor and
debtor-in-possession in the above-entitled bankruptcy case (the “Debtor”), for entry of an order:
(1) Authorizing the Debtor to exercise the option to purchase (the “Purchase
Option”) for the real property and improvements thereon located at 9430 Wilshire
Boulevard, Beverly Hills, California 90212, with the legal description set forth on
Exhibit A, and as more particularly described in the APR as defined below and defined in
the APR as the Property (the “Property” or “Beverly Hills Property”) and purchase the
FILED & ENTERED
MAY 29 2015
CLERK U.S. BANKRUPTCY COURT
Central District of California
BY DEPUTY CLERK	milano
CHANGES MADE BY COURT
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Property;
(2) Authorizing the Debtor to enter into and execute and deliver that certain
Agreement for Purchase of Real Property and Joint Escrow Instructions (“APR”) and
related agreements and documents attached or described therein or delivered or executed
pursuant to the APR (“Transaction Documents”) substantially in the forms filed herein by
Debtor on May 26, 2015 and attached to the Debtor’s Submission of Transaction
Documents and Draft Proposed Order in Support of [the Motion] (ECF No. 1151) and
Debtor’s Supplemental Submission of Transaction Documents and Draft Proposed Order
in Support of [the Motion] (ECF No. 1152), with such further changes as may be agreed to
by Debtor and Buyer prior to their execution and delivery provided that they do not have a
material adverse effect on the Debtor’s estate herein and with the signed APR to be filed
herein no later than May 29, 2015 provided that the Transaction Documents are approved
by Buyer’s Board of Directors on May 28, 2015, and authorizing all of the transactions set
forth therein or contemplated thereby (the “Transactions”), including (a) the Debtor’s
exercise of the Purchase Option to purchase the Property from Landlord and Debtor’s
purchase of the Property from Landlord for the applicable purchase price (the “Exercise
and Closing of the Purchase Option”); (b) sale of the Beverly Hills Property (the “Beverly
Hills Property Sale”) to the Los Angeles County Metropolitan Transportation Authority, a
public agency existing under the laws of the State of California (“LACMTA”, “MTA” or
“Buyer”) for the sum of $40,000,000, free and clear of interests pursuant to 11 U.S.C.
§ 363(f); and (c) the Debtor’s entry into a lease of the Beverly Hills Property from the
LACMTA following the closing of the Transactions (“New Lease Agreement”)
substantially in the form attached to the APR;
(3) granting such other relief as set forth in the Motion and in a proposed order
form of order to be submitted in advance of the Sale Hearing; and
(4) granting such other relief as the Court deems just and proper.
Appearances were as noted on the record of the Court. Capitalized terms not otherwise defined
have the same meaning ascribed to such terms in the Transaction Documents and, if not defined
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in the Transaction Documents, in the Motion. The Court, having read and considered the Motion,
the Transaction Documents, the supplement to the Motion, and all other pleadings and documents
filed in support of the Motion and/or in opposition to the Motion, whether in writing or presented
orally at the hearing on the Motion, with good cause appearing therefor:
THE COURT HEREBY FINDS AND DETERMINES THAT:1
Jurisdiction, Final Order and Statutory Predicates
A. This Court has jurisdiction to hear and determine this matter pursuant to 28 U.S.C.
§§ 157(b)(l) and 1334(a). This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (N)
and (O). Venue is proper in this District and in this Court pursuant to 28 U.S.C. §§ 1408 and
1409.
B. The statutory predicates for the relief requested in the Motion are §§ 105(a) and
363 of the Bankruptcy Code, 11 U.S.C., and Federal Rules of Bankruptcy Procedure
(“Bankruptcy Rules”) 2002, 6004, and 9006.
C. This Order constitutes a final order within the meaning of 28 U.S.C. § 158(a).
Notice of the Motion
D. The notice of the Motion was served upon the following parties (the “Notice
Parties”): (i) the U.S. Trustee; (ii) counsel to the Official Committee of Unsecured Creditors (the
“Committee”); (iii) counsel to Wilson Administrative Services, Ltd.; (iv) the Internal Revenue
Service; (v) all parties that have requested or that are required to receive notice pursuant to
Bankruptcy Rule 2002; (vi) all parties that are known or reasonably believed to have asserted any
lien, encumbrance, claim or other interest in the Property; (vii) all governmental agencies that are
an interested party with respect to the sale and transactions proposed thereunder; and (viii) all
other known creditors of the Debtor.
1 The findings and conclusions set forth herein constitute the Court’s findings of fact and
conclusions of law pursuant to Bankruptcy Rule 7052 and Fed. R. Civil P. 52, made applicable to
this proceeding pursuant to Bankruptcy Rule 9014. All findings of fact and conclusions of law
announced by the Court at the Sale Hearing in relation to the Motion are hereby incorporated
herein to the extent not inconsistent herewith. To the extent that any of the following findings of
fact constitute conclusions of law, they are adopted as such. To the extent any of the following
conclusions of law constitute findings of fact, they are adopted as such.
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E. A separate Notice of Sale of Estate Property (ECF No. 1129, filed May 15, 2015)
relating to the sale of the Beverly Hills Property was filed with the Court and posted on the
Court’s website.
F. Notice of the Sale Hearing was reasonably calculated to provide all interested
parties with appropriate and sufficient notice of the Exercise and Closing of the Purchase Option,
the Beverly Hills Property Sale, and Sale Hearing, under all of the facts and circumstances of the
present case.
G. As evidenced by the affidavits of service previously filed with this Court, adequate
and sufficient notice of the Motion, Sale Hearing, the Exercise and Closing of the Purchase
Option, the Beverly Hills Property Sale, and the Transactions, has been provided in accordance
with §§ 105(a) and 363 of the Bankruptcy Code, and Bankruptcy Rules 2002, 6004, and 9006.
The notices described above were good, sufficient, and appropriate under the circumstances, and
no other or further notice of the Motion, Sale Hearing, the Exercise and Closing of the Purchase
Option, the Beverly Hills Property Sale, or the Transactions is or shall be required.
H. The disclosures made by the Debtor concerning the Motion, Sale Hearing, the
Exercise and Closing of the Purchase Option, the Beverly Hills Property Sale, and the
Transactions were good, complete, and adequate.
I. Buyer is not an “insider” of the Debtor, as that term is defined in section 101(31)
of the Bankruptcy Code.
J. A reasonable opportunity to object and be heard with respect to the Motion, Sale
Hearing, the Exercise and Closing of the Purchase Option, the Beverly Hills Property Sale, the
Transactions, and the relief requested therein has been afforded to all interested persons and
entities, including the Notice Parties.
Exercise and Closing of Purchase Option
K. On April 30, 2014, the Court entered an order (the “Settlement Order”) approving
the Beverly Hills Settlement Agreement with the Debtor’s lessors, Culver Center Partners, LLC, a
California limited liability company (“CCP”), and Culver Center Partners-West #1, LLC, a
California limited liability company (“CCP West,” together with CCP, the “Landlord”), among
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others. The Purchase Option contained within the Beverly Hills Settlement Agreement provides
that the Debtor or its assignee must provide the Landlord with at least thirty (30) days’ notice of
the Debtor’s exercise of the Purchase Option (“Option Exercise Notice”), together with evidence
of a deposit in the sum of $100,000 in the form of a cashier’s check made payable to the escrow
company (the “Option Deposit”) delivered to Chicago Title, First American Title, or
Commonwealth Lawyers Title (as selected jointly by Debtor and the CCP-West Parties, the
“Escrow Company”). The Option Deposit will be applied to the purchase price if the Purchase
Option closes.
L. The Beverly Hills Settlement Agreement provides that the Loan Balance (as
defined therein) must be paid to the CCP West Parties (as defined therein) in full from the
proceeds of the sale through escrow.
M. The Settlement Order authorized the Debtor to take all steps necessary to
implement, consummate, and enforce the terms of the Settlement Agreement.
N. On May 15, 2015, Chicago Title Company was selected as the Escrow Company.
O. Also on May 15, 2015, in accordance with the Purchase Option and Settlement
Order, the Debtor properly gave notice of the exercise of the Purchase Option by making the
Option Deposit with the Escrow Company and by giving notice to the Landlord of the Option
Deposit with the Escrow Company and of the Debtor’s exercise of the Purchase Option. Under
the terms of the Purchase Option and the Option Exercise Notice, the Debtor may close its
purchase of the Beverly Hills Property between June 15, 2015 and August 13, 2015.
P. Under the Purchase Option, the Landlord is required to cause to be issued to the
Debtor a standard (CLTA) coverage owner’s policy of title insurance of Land America Lawyers
Title Company, with liability, in the amount of the purchase price, insuring the title to the
Property vested in the Debtor, free and clear, of all liens and encumbrances except: (i) liens for
current real estate taxes, including supplemental taxes, not yet due and payable, and (ii) any other
exceptions acceptable to the Debtor. Fidelity National Title Company is the successor to Land
America Lawyers Title Company.
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Q. Under the Purchase Option, the cost for the Debtor to close its purchase of the
Beverly Hills Property is the sum of $18,575,000 if the Debtor closes such transaction by June 30,
2015 (the “Purchase Option Price”). The cost to the Debtor to exercise the Purchase Option will
increase by $675,000 on July 1, 2015.
R. Under the Purchase Option, the Landlord is required to pay all costs and expenses
incurred to pay off and release the mortgage on the Beverly Hills Property including defeasance
charges and/or yield maintenance charges or prepayment penalties and is responsible in such
event for consummating any such defeasance transaction at its sole costs and expense.
S. Subject only to the entry of this Order, the Debtor has (or at all relevant times had)
(i) full corporate power and authority to execute and deliver the Option Exercise Notice, (ii) all
corporate authority necessary to consummate the purchase of the Property under the terms of the
Purchase Option, and (iii) taken all corporate action necessary to authorize and approve the
exercise and closing of the Purchase Option. Subject only to the entry of this Order (a) the
Debtor’s purchase of the Property has been duly and validly authorized by all necessary corporate
action, and (b) no consents or approvals, other than those expressly provided for in the Purchase
Option, are required for the Debtor to consummate the closing of the purchase of the Property
under the terms of the Purchase Option.
T. The Debtor is entitled to exercise the Purchase Option and shall become the sole
and lawful owner of the Property when it consummates the Exercise and Closing of its Purchase
Option authorized and ratified by this Order and the Debtor is entitled to contemporaneously sell
the Property to the Buyer as further set forth herein and in paragraph GG below.
Good Faith of Buyer
U. The Transaction Documents were all negotiated, proposed, and entered into by the
Debtor and Buyer without collusion, and in good faith, and resulted from arm’s-length bargaining
positions.
V. Neither the Debtor nor Buyer has engaged in any conduct that would cause or
permit any of the Transaction Documents to be avoided under § 363(n) of the Bankruptcy Code.
Specifically, Buyer has not acted in a collusive manner with any person and the Purchase Price
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pursuant to the Transaction Documents to be paid by Buyer for the Property was not controlled by
any agreement among bidders.
W. Buyer has acted in good faith with respect to the Transactions and if all of the
conditions to Closing occur subject to the terms and provisions of the Transaction Documents
provided that they are hereafter approved by the Board of Directors of Buyer and thereafter
signed by the parties thereto, Buyer shall purchase the Property. If the Closing occurs, Buyer
shall purchase the Property in good faith and shall be a good-faith buyer within the meaning of §
363(m) of the Bankruptcy Code, and is therefore entitled to all of the protections afforded by §
363(m), and otherwise has proceeded in good faith in all respects in connection with this
proceeding in that, among other things: (i) Buyer recognized that the Debtor was free to deal with
any other party interested in acquiring the Property; (ii) Buyer in no way induced or caused the
chapter 11 filing by the Debtor; and (iii) all payments to be made by Buyer in connection with the
Beverly Hills Property Sale have been disclosed.
Highest or Best Offer
X. The sale process conducted by the Debtor afforded a full, fair, and reasonable
opportunity for any person or entity to make an offer to purchase the Property.
Y. The Transactions contemplated by the Transaction Documents, including without
limitation the purchase of the Property pursuant to the Purchase Option after all conditions set
forth in the Transaction Documents are satisfied, and the immediate re-sale of the Property to
Buyer (the “Beverly Hills Property Sale”), maximizes the value of the Purchase Option and
provides a better recovery for the Debtor’s estate than would be provided by any other available
alternative. The Debtor’s determination that the Transactions constitute the highest or best offer
for the Property constitute a valid and sound exercise of the Debtor’s business judgment.
No Fraudulent Transfer or Successor Liability
Z. The consideration provided by Buyer pursuant to the Transaction Documents (i) is
fair and reasonable, (ii) is the highest or best offer for the Property, and (iii) constitutes
reasonably equivalent value and fair consideration (as those terms are defined in each of the
Uniform Fraudulent Transfer Act, and the Uniform Fraudulent Conveyance Act, as such uniform
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statements have been adopted in any given state, or any comparable state law statute, and § 548 of
the Bankruptcy Code) under the Bankruptcy Code and under the laws of the United States, any
state, territory, possession, or the District of Columbia. No other person or entity or group of
entities has offered to purchase the Property for greater economic value to the Debtor’s estate than
Buyer. Debtor has actively and competently marketed the Property to prospective purchasers and
the Buyer has offered the best purchase price and has the best possibility of closing on the sale
transactions contemplated by the Motion. Approval of the Motion and the Transaction
Documents and the consummation of the Transactions are in the best interests of the Debtor, its
estate, creditors, and other parties in interest.
AA. Upon their execution, the Transaction Documents will not be entered into for the
purpose of hindering, delaying, or defrauding creditors under the Bankruptcy Code or under the
laws of the United States, any state, territory, possession, or the District of Columbia. Neither the
Debtor nor Buyer is entering into the Transactions fraudulently for the purpose of statutory and
common law fraudulent conveyance and fraudulent transfer claims.
BB. Buyer is not a mere continuation of any of the Debtor or its estate and there is no
continuity of enterprise between Buyer and the Debtor. Buyer is not holding itself out to the
public as a continuation of the Debtor or any of its business or other activities. Buyer is not a
successor to the Debtor or its estate and the Beverly Hills Property Sale does not amount to a
consolidation, merger, or de facto merger of Buyer and the Debtor.
Validity of Transfer
CC. Subject only to the entry of this Order, the Debtor has (or at all relevant times had)
(i) full corporate power and authority to execute and deliver the Transaction Documents, (ii) all
corporate authority necessary to consummate the Transactions, and (iii) taken all corporate action
necessary to authorize and approve the Transaction Documents and the consummation of the
Transactions. Subject only to the entry of this Order (a) the Debtor’s sale of the Property has
been duly and validly authorized by all necessary corporate action, and (b) no consents or
approvals, other than those expressly provided for in the Transaction Documents, are required for
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the Debtor to consummate the Beverly Hills Property Sale, the Transaction Documents, and the
Transactions.
DD. Pursuant to § 363(f) of the Bankruptcy Code, the transfer of the Property to Buyer
will be, as of the ”Closing Date” as defined in the Transaction Documents (the “MTA Closing
Date”), a legal, valid, and effective transfer of the Property and fee simple title thereto, which
transfer vests or will vest Buyer with all right, title, and interest of the Debtor to the Property free
and clear of any Interests (as defined below) in such Property and fee simple title thereto relating
to, accruing, or arising any time prior to the MTA Closing Date.
Section 363(f) is Satisfied
EE. The conditions of § 363(f) of the Bankruptcy Code have been satisfied in full;
therefore, the Debtor is authorized to and shall sell the Property free and clear of all Interests in
the Property and the sale of the Property pursuant to the Transaction Documents and the
Transactions shall be free and clear of all such Interests. “Interests” are defined collectively as
any and all obligations, interests, rights, pledges, liens (including, without limitation, mechanics’,
materialmens’ and other consensual and non-consensual liens, and statutory liens), mortgages,
deeds of trust, security interests, claims (including any “claim” as defined in § 101(5) of the
Bankruptcy Code), liabilities, debt obligations, losses, penalties, leases, charges, offsets,
contracts, options, rights of first refusal, rights of first offer, rights of first sale, rights of notice,
easements, servitudes, proxies, voting trusts or agreements, transfer restrictions under any
agreement, conditional sale or other title retention agreements, recoupment, hypothecations,
demands, licenses, sublicenses, assignments, indentures, loan agreements, instruments, debts,
rights of recovery, guaranties, contractual commitments, restrictions, labor and employment rights
and claims, employee benefit agreements and obligations, collective bargaining agreements and
obligations, pension rights and claims, claims based on reimbursement, contribution, indemnity,
exoneration, products liability, tortious conduct, property damage, personal injury, alter-ego or
taxes, claims based on pension plan contribution and related liabilities, environmental liabilities
or obligations (including, without limitation, toxic tort claims), options to purchase, regulatory
violations, decrees of any court or governmental entity, charges or any kind or nature, debts
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arising in any way in connection with any agreements, acts, or failures to act, reclamation claims,
and obligation claims, in each case, of whatever kind, nature or description in, against or with
respect to the Property, or the Seller, having arisen, existed, or accrued prior to and though the
MTA Closing Date, whether direct or indirect, absolute or contingent, choate or inchoate, filed or
unfiled, scheduled or unscheduled, noticed or unnoticed, recorded or unrecorded, perfected or
unperfected, material or non-material, disputed or undisputed, known or unknown, matured or
unmatured, liquidated or unliquidated, arising or imposed by agreement, understanding, law,
equity, statute or otherwise, and whether arising prior to, on or after the commencement of the
above-entitled Bankruptcy Case, including claims or liabilities otherwise arising under doctrines
of successor liability, de facto merger or substantial continuity or liabilities or obligations under
any law or order.
FF. Buyer would not enter into the Transaction Documents and would not consummate
the Transactions if the sale of the Property to Buyer were not free and clear of all such Interests.
Buyer shall not be responsible for any Interests.
GG. The Debtor is entitled to sell the Property to the Buyer free and clear of all
Interests against the Debtor, its estate, or any of the Property because, in each case, one or more of
the standards set forth in § 363(f)(1)-(5) of the Bankruptcy Code has been satisfied. Those
holders of Interests against the Debtor, its estate, or any of the Property who did not object, or
who withdrew their objections, to the Beverly Hills Property Sale or the Motion are deemed to
have consented pursuant to § 363(f)(2) of the Bankruptcy Code. All other holders of Interests
(except as otherwise provided herein) are adequately protected by having their Interests, if any, in
each instance against the Debtor, its estate, or any of the Property, attach to the net proceeds of
the Beverly Hills Property Sale ultimately attributable to the Property, in which such creditor or
claimant alleges an Interest, in the same order of priority, with the same validity, force, and effect
that such Interest had prior to the Beverly Hills Property Sale, without further order of the Court,
subject to any claims and defenses the Debtor and its estate may possess with respect thereto.
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Compelling Circumstances for an Immediate Sale
HH. Good and sufficient reasons for approval of the Transaction Documents and the
Transactions have been articulated. The relief requested in the Motion is in the best interests of
the Debtor, its estate, its creditors, and other parties in interest. The Debtor has demonstrated
both (i) good, sufficient, and sound business purposes and justifications and (ii) compelling
circumstances for a sale other than in the ordinary course of business, pursuant to § 363(b) of the
Bankruptcy Code before, and outside of, a plan of reorganization, in that, among other things,
immediately entering into the Transaction Documents and consummation of the Transactions is
necessary and appropriate to maximize the value of the Debtor’s estate and the Transactions will
provide the means for the Debtor to maximize distributions to creditors and fund a chapter 11
plan.
II. Given all of the circumstances of this chapter 11 case and the adequacy and fair
value of the Purchase Price under the Transaction Documents, the proposed sale of the Property
to Buyer constitutes a reasonable and sound exercise of the Debtor’s business judgment and
should be approved.
JJ. The Beverly Hills Property Sale does not constitute a sub rosa chapter 11 plan for
which approval has been sought without the protections that a disclosure statement would afford.
The Beverly Hills Property Sale neither impermissibly restructures the rights of the Debtor’s
creditors nor impermissibly dictates the terms of a liquidating plan of reorganization for the
Debtor.
KK. The consummation of the Beverly Hills Property Sale is legal, valid, and properly
authorized under all applicable provisions of the Bankruptcy Code, including, without limitation,
§§ 105(a), 363(b), 363(f), and 363(m), and all of the applicable requirements of such sections
have been complied with in respect of the Transactions.
LL. The Debtor and Buyer have agreed to provide the Escrow Company with
instructions, provided that all conditions to Closing have been satisfied or waived, to record the
grant deed from Landlord and the grant deed to Buyer and that neither deed shall record nor shall
funds be released unless both deeds are recorded.
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NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED
THAT:
1. The relief requested in the Motion is granted and approved as set forth in this
Order, the exercise and closing of the Purchase Option are approved, and the Transactions
contemplated by the Transaction Documents are approved. The APR and the other Transaction
Documents including the New Lease Agreement are approved. The Debtor is authorized to enter
into, execute and deliver the Transaction Documents as provided in the APR and to perform
Debtor’s obligations under the Transaction Documents and consummate any Transactions
contemplated thereby.
2. All objections to the Motion or the relief requested therein that have not been
withdrawn, waived, or settled as announced to the Court at the Sale Hearing or by stipulation filed
with the Court, and all reservations of rights included therein, are hereby denied and overruled
with prejudice. Those parties which did not object or withdrew their objection(s) to the Motion
are deemed to have consented pursuant to § 363(f)(2) of the Bankruptcy Code and Local
Bankruptcy Rule 9013-1(h).
Approval of the Exercise and Closing of the Purchase Option
3. The selection of Chicago Title Company as the Escrow Company complies with
the terms of the Purchase Option, and is authorized by the Settlement Order and is hereby ratified
and approved.
4. The Debtor’s making of the Option Deposit with the Escrow Company complies
with the terms of the Purchase Option, and is authorized by the Settlement Order and is hereby
ratified and approved.
5. The Debtor’s Option Exercise Notice complies with the terms of the Purchase
Option. The Debtor’s giving of the Option Exercise Notice complies with the terms of the
Purchase Option, and is authorized by the Settlement Order and is hereby ratified and approved.
Under the terms of the Purchase Option and the Option Exercise Notice, the Debtor may close its
purchase of the Beverly Hills Property between June 15, 2015 and August 13, 2015.
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Purchase of the Property
6. Pursuant to §§ 105(a) and 363(b) of the Bankruptcy Code and the Settlement
Order, the Debtor is authorized to acquire the Property through the Purchase Option, and such
purchase shall constitute a legal, valid, binding, and effective transfer of the Beverly Hills
Property and fee simple title thereto to the Debtor.
7. In accordance with the Purchase Option, the Purchase of the Beverly Hills
Property shall vest the Debtor with all right, title (which shall be good, clear, and marketable),
and interest in and to the Property except for (a) liens for current real estate taxes, including
supplemental taxes, not yet due and payable, and (b) any other exceptions acceptable to the
Debtor.
8. In accordance with the Settlement Order and this Order, the Debtor is authorized to
take any and all actions necessary to consummate the purchase of the Beverly Hills Property,
including any actions that otherwise would require further approval by shareholders or its board
of directors without the need of obtaining such approvals.
9. All persons and entities are hereby forever prohibited and enjoined from taking
any action that would adversely affect or interfere with the ability of the Debtor to consummate
the purchase of the Beverly Hills Property, including, without limitation, to purchase the Property
from the Landlord or its successors or assigns in accordance with the terms of the Purchase
Option, the Exercise Option Notice, and this Order, or that would otherwise affect the
consummation of the closing of the purchase of the Beverly Hills Property.
Approval of the Transaction Documents with the Buyer
10. The Transaction Documents with the Buyer and all other ancillary documents, and
all of the terms and conditions thereof, are hereby approved.
11. Pursuant to § 363(b) and (f) of the Bankruptcy Code, the Debtor is authorized and
empowered to take any and all actions necessary or appropriate to (a) consummate the sale of the
Property to Buyer pursuant to and in accordance with the terms and conditions of the Transaction
Documents, (b) close the Transactions, including without limitation the Beverly Hills Property
Sale, if the conditions to Closing are satisfied, and (c) complete, execute and deliver, perform
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under, consummate and implement the Transaction Documents together with all additional
instruments and documents contemplated thereby or are reasonably necessary or desirable to
implement the Transaction Documents and the Transactions or which are otherwise reasonably
requested by Buyer.
12. This Order shall be binding in all respects upon the Debtor, its estate, all creditors
of, and holders of equity interests in, the Debtor, any holders of Interests in, against, or on all or
any portion of the Property (whether known or unknown), the Landlord and all successors and
assigns of the Landlord, Buyer and all successors and assigns of Buyer, the Property, and trustees,
if any, subsequently appointed in the Debtor’s chapter 11 case or upon a conversion of the
Debtor’s case to a chapter 7 case under the Bankruptcy Code (a “Trustee”). This Order and the
Transaction Documents (conditioned upon the execution by Buyer and Seller of the Transaction
Documents and satisfaction of the conditions to Closing pursuant thereto) shall inure to the
benefit of the Debtor, its bankruptcy estate, Buyer, and the respective successors and assigns of
each of the foregoing, including without limitation any Trustee or any person or entity appointed
pursuant to any plan confirmed in the Bankruptcy Case with authority over the Debtor or any
assets or property of the Debtor. Notwithstanding the foregoing, any conditions, limitations, or
restrictions or other provisions affecting the right to pursue entitlements for development of the
Option Property or the assignment or transfer of the New Lease Agreement or Debtor’s rights to
exercise its Repurchase Option to purchase the Option Property from Buyer pursuant to the
Transaction Documents including Buyer's right to require Buyer’s reasonable consent as provided
in the Transaction Documents shall be enforceable according to their terms notwithstanding any
provisions of the Bankruptcy Code to the contrary including, but not limited to 11 U.S.C. §§ 363,
365(f), and 1123(a)(5)(B), (b)(2), (4) (to the extent, if any that they are applicable thereto).
Transfer of the Property
13. Pursuant to §§ 105(a), 363(b), and 363(f) of the Bankruptcy Code, in exchange for
the Purchase Price, the Debtor is authorized to transfer the Debtor’s interest in the Property to
Buyer and to convey the Property to Buyer on the MTA Closing Date, including, without
limitation, by taking such actions as may be necessary to ensure Buyer has access to the Property,
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and such transfer shall constitute a legal, valid, binding, and effective transfer of the Debtor’s
interest in the Property and shall vest Buyer with fee simple title to the Property and all right, title
(which shall be good, clear and marketable) and otherwise as required by the Transaction
Documents), and interest of the Debtor in and to the Property owned by the Debtor, and, upon the
Debtor’s receipt of the Purchase Price, shall be free and clear of all Interests, with all such
Interests to attach to the net proceeds as set forth herein, with the same validity, force, and effect,
and in the same order of priority, which such Interests now have against the Property, subject to
any rights, claims, and defenses the Debtor or its estate, as applicable, may possess with respect
thereto. Upon the Closing, Buyer shall take title to and possession of the Property free and clear
of any and all Interests, subject to the Debtor’s lease back of the Property pursuant to the New
Lease Agreement and the Transaction Documents.
14. The Debtor is hereby authorized to take any and all actions necessary to
consummate the Transactions, and to perform its obligations pursuant to the Transaction
Documents in such forms in which they hereafter are finalized and executed and delivered,
including any actions that otherwise would require further approval by shareholders or its board
of directors without the need of obtaining such approvals.
15. On the MTA Closing Date, this Order shall be construed and shall constitute for
any and all purposes a full and complete general assignment, conveyance, and transfer of the
Debtor’s interest in the Property to Buyer and fee simple title thereto. Each and every federal,
state, and local governmental agency or department is hereby directed to accept any and all
documents and instruments necessary and appropriate to consummate the Transactions.
16. A certified copy of this Order may be filed with the appropriate clerk and recorded
with the recorder to act to cancel any liens and other encumbrances of record in accordance with
the terms and provisions of this Order.
17. If any person or entity which has filed statements or other documents or
agreements evidencing liens on, or Interests in, all or any portion of the Property shall not have
delivered to the Debtor prior to the Closing, in proper form for filing and executed by the
appropriate parties, termination statements, instruments of satisfaction, releases of liens and
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easements, and any other documents necessary for the purpose of documenting the release of all
liens or interests which the person or entity has or may assert with respect to all or any portion of
the Property, the Debtor and Buyer are each hereby authorized, on behalf of the Debtor and each
of the Debtor’s creditors, to execute and file such statements, instruments, releases, and other
documents on behalf of such person or entity with respect to the Property. Notwithstanding the
foregoing, the provisions of this Order authorizing the transfer of the Property to Buyer free and
clear of all Interests of any kind or nature whatsoever shall be self-executing and notwithstanding
the failure of the Debtor, Buyer, or any other party to execute, file, or obtain termination
statements, instruments of satisfaction, release of liens and easements, and any other documents
necessary for the purpose of documenting the release of all liens or interests with respect to all or
any portion of the Property, all such Interests shall be deemed unconditionally released,
discharged, terminated, divested, void, and unenforceable upon the occurrence of the Closing.
18. This Order is and shall be effective as a determination that, on the MTA Closing
Date, all Interests shall have been unconditionally released, discharged, and terminated, and that
the conveyances described herein have been effected. This Order is and shall be binding upon
and govern the acts of all persons and entities, including, without limitation, all filing agents,
filing officers, title agents, title companies, recorders of mortgages, recorders of deeds, registrars
of deeds, administrative agencies, governmental departments, secretaries of state, federal, state,
and local officials, and all other persons and entities who may be required by operation of law, the
duties of their office, or contract, to accept, file, register, or otherwise record or release any
documents or instruments, or who may be required to report or insure any title or state of title in
or to any lease; and each of the foregoing persons and entities is hereby directed to accept for
filing any and all of the documents and instruments necessary and appropriate to consummate the
Transactions.
Prohibition of Actions Against Buyer
19. Buyer shall not have any liability or other obligation of the Debtor arising under or
related to any of the Property. Without limiting the generality of the foregoing, Buyer shall not be
liable for any Interests against the Debtor or any of its predecessors or affiliates, and Buyer shall
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have no successor or vicarious liabilities of any kind or character, including, but not limited to,
under any theory of antitrust, environmental, successor or transferee liability, labor law, de facto
merger, mere continuation, or substantial continuity, whether known or unknown as of the MTA
Closing Date, now existing or hereafter arising, whether fixed or contingent, whether asserted or
unasserted, whether legal or equitable, whether liquidated or unliquidated, including, but not
limited to, liabilities on account of warranties, intercompany loans and receivables between the
Debtor and any non-Debtor affiliate, liabilities relating to or arising from any environmental
health and safety laws, and any taxes arising, accruing or payable under, out of, in connection
with, or in any way relating to the operation of any of the Property prior to the MTA Closing
Date.
20. All persons and entities, including, but not limited to, all debt security holders,
equity security holders, governmental, tax and regulatory authorities, lenders, trade creditors,
litigation claimants and other creditors, holding Interests against or in all or any portion of the
Property (whether legal or equitable, secured or unsecured, matured or unmatured, contingent or
non-contingent, liquidated or unliquidated, senior or subordinate), arising under or out of, in
connection with, or in any way relating to the Debtor, the Property, the operation of the Debtor’s
business prior to the MTA Closing Date or the transfer of the Property to Buyer, hereby are
forever barred, estopped and permanently enjoined from asserting against Buyer, any of its
affiliates, its successors or assigns, their property or the Property, such persons’ or entities’
Interests in and to the Property, including, without limitation, the following actions:
(a) commencing or continuing in any manner any action or other proceeding against Buyer, any
of its affiliates, successors, agents, assets or properties with respect to the Property; (b) enforcing,
attaching, collecting, or recovering in any manner any judgment, award, decree, or order against
Buyer, any of its affiliates, successors, agents, assets or properties with respect to the Property;
(c) creating, perfecting, or enforcing any lien or other Interests against Buyer, any of its affiliates,
successors, agents, assets, or properties with respect to the Property; (d) asserting any setoff, right
of subrogation, or recoupment of any kind against any obligation due Buyer, any of its affiliates
or its successors with respect to the Property; or (e) commencing or continuing any action, in any
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manner or place with respect to the Property, that does not comply or is inconsistent with the
provisions of this Order or other orders of the Court, or the agreements or actions contemplated or
taken in respect thereof. On the MTA Closing Date, or as soon as possible thereafter, each
creditor is authorized and directed, and Buyer is hereby authorized, on behalf of the Debtor’s
creditors, to execute such documents and take all other actions as may be necessary to release
Interests in or on the Property, if any, as provided for herein, as such Interests may have been
recorded or may otherwise exist.
21. In the event that the Closing and consummation of the Transactions occurs, all
persons and entities are thereafter forever prohibited and enjoined from taking any action that
would adversely affect or interfere with the ability of the Debtor to consummate the Transactions,
including, without limitation, to sell and transfer the Property to Buyer in accordance with the
terms of the Transaction Documents and this Order, or that would otherwise affect the
consummation of the Transactions.
Other Provisions
22. In the event of a Closing, Buyer will have given substantial consideration under
the Transaction Documents for the benefit of the Debtor, its estate, and creditors. The
consideration given by Buyer shall constitute valid and valuable consideration for the releases of
any potential Interests pursuant to this Order, which releases shall be deemed to have been given
in favor of Buyer by all holders of Interests against the Debtor or in the Property. The
consideration provided by Buyer for the Property under the Transaction Documents is fair and
reasonable and accordingly the purchase may not be avoided under § 363(n) of the Bankruptcy
Code.
23. Provided that the Escrow Company has received instructions to record the grant
deed from Landlord and the grant deed to the Buyer and that neither deed shall record nor shall
funds be released unless both deeds are recorded, the Debtor is authorized to instruct Escrow
Company to pay from escrow the Purchase Option Price and any ordinary and necessary closing
costs.
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24. After the Escrow Company’s payment of (a) the Purchase Option Price; (b) the
Loan Balance (to the CCP West Parties); (c) the postpetition secured loan of Wilson
Administrative Services, Ltd.; (d) the Debtor’s one-half share of the escrow fees relating to
consummation of the Purchase Option; (e) the Debtor’s customary share of the ordinary and
necessary costs to consummate the Purchase Option in accordance therewith; and (f) the ordinary
and necessary closing costs relating to the Transactions, there should be the remaining sum of
approximately $17,500,000.00 (the “Sales Proceeds”). From the Sales Proceeds, the Escrow
Company is directed to pay into the Trust Account held by Levene, Neale, Bender, Yoo & Brill
L.L.P. (“Levene Neale”) the sum of approximately $12,500,000 for the benefit of the Debtor and
its estate. Of the remaining balance of the Sales Proceeds in the sum of no greater than
$5,054,000, the Escrow Company shall hold this sum as a reserve (the “AERC Reserve”) for the
benefit of AERC Desmond’s Tower, LLC (“AERC”) which shall be held and released subject to
the terms and conditions of the Stipulation Between AERC-Desmond Tower, LLC, Art and
Architecture Books of the 21st Century, a California Corporation and the Official Committee of
Unsecured Creditors of Art and Architecture Books of the 21st Century Regarding Payment of
Allowed Administrative Claim of AERC-Desmond Tower, LLC under Section 365(d)(3) of the
Bankruptcy Code, Payment of Chapter 11 Administrative Expenses of Art and Architecture Books
of the 21st Century and Reservation of Rights.
25. Once deposited into the Trust Account held by Levene Neale, the Sale Proceeds
can be distributed in accordance with the Order Granting First Interim Applications for Approval
of Fees and Reimbursement of Levene, Neale, Bender, Yoo & Brill L.L.P.; Crowe Horwath LLP
and Sulmeyer Kupetz, APC (ECF No. 831, entered January 5, 2015, the “Fee Order”) and any
further Order of this Court.
26. The consideration provided by Buyer to the Debtor pursuant to the Transaction
Documents for the Property constitutes reasonably equivalent value and fair consideration under
the Bankruptcy Code, Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act
and under any other laws of the United States, any state, territory, possession, or the District of
Columbia.
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27. The Transactions are undertaken by Buyer without collusion and in good faith, as
that term is defined in § 363(m) of the Bankruptcy Code, and accordingly, the reversal or
modification on appeal of the authorization provided herein to consummate the Transactions shall
not affect the validity of the Beverly Hills Property Sale, unless such authorization and the
Beverly Hills Property Sale are duly stayed pending such appeal. Notwithstanding the foregoing,
however, neither this Order nor anything contained herein shall modify, impair or otherwise affect
the provisions in the APR providing that it shall be a condition to Closing that this Order and any
Transfer Order as defined in the APR shall have become a Final Order as defined in the APR
unless such condition is waived by Buyer in accordance with the terms thereof and neither this
Order nor any Transfer Order is subject to a stay, all as more particularly set forth in the APR.
Buyer is a good faith buyer within the meaning of § 363(m) of the Bankruptcy Code and, as such,
is entitled to the full protections of § 363(m) of the Bankruptcy Code.
28. Nothing contained in any plan of reorganization or liquidation, or order of any type
or kind entered in (a) this chapter 11 case, (b) any subsequent chapter 7 case into which Debtor’s
chapter 11 case may be converted, or (c) any related proceeding subsequent to entry of this Order,
shall conflict with or derogate from the provisions of the Transaction Documents or the terms of
this Order, nor shall the same impair, diminish, waive, release or otherwise affect any of Buyer’s
rights or interests pursuant to the Transaction Documents or this Order
29. No bulk sales law or any similar law of any state or other jurisdiction applies in
any way to the Beverly Hills Property Sale.
30. The failure specifically to include any particular provision of the Transaction
Documents or any related ancillary document in this Order shall not diminish or impair the
effectiveness of such provision, it being the intent of the Court that the Transaction Documents
and all related ancillary documents be authorized and approved in their entirety. All of the
provisions of this Order are nonseverable and mutually dependent.
31. The Transaction Documents and any related agreements, documents, or other
instruments may be modified, amended, or supplemented by the parties thereto and in accordance
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with the terms thereof, without further order of the Court, provided that any such modification,
amendment, or supplement does not have a material adverse effect on the Debtor’s estate.
32. All time periods set forth in this Order shall be calculated in accordance with
Bankruptcy Rule 9006(a).
33. This Order constitutes an itemized statement of the property sold, the name of
Buyer, and the price received for the property as a whole as required by Bankruptcy Rule
6004(f)(1).
34. Notwithstanding Bankruptcy Rule 6004(h), this Order shall be effective and
enforceable immediately upon entry and shall not be subject to any stay as provided therein and
its provisions shall be self-executing.
35. Buyer shall not be required to seek or obtain relief from the automatic stay under
section 362 of the Bankruptcy Code or to seek or obtain leave from the Bankruptcy Court to
exercise and enforce any of its rights and remedies under the Transaction Documents or the
Transactions according to their terms including, but not limited to, any rights and remedies under
the lease back of any of the Property to Debtor pursuant to the New Lease Agreement as defined
in the Transaction Documents, to recover possession of the Property and any rights and remedies
that Buyer has respecting the Repurchase Option to purchase the Option Property from Buyer
pursuant to the APR and the Transaction Documents. The automatic stay under section 362(a) of
the Bankruptcy Code hereby is deemed vacated and modified to permit such enforcement and
exercise of Buyer’s rights and remedies under applicable nonbankruptcy law. The Debtor waives
for itself and any successor, assign, or representative of its estate, including without limitation the
Committee and any Trustee or any person or entity appointed pursuant to any plan confirmed in
the Bankruptcy Case with authority over the Debtor or any assets or property of the Debtor the
right to seek an injunction barring Buyer from enforcing its rights and remedies under the
Transaction Documents on the grounds that the Debtor is a debtor in a bankruptcy case or that a
plan has been confirmed in the Bankruptcy Case.
36. In the event that the Closing does not occur, any funds or documents or other
items deposited by Buyer with Escrow Holder shall be returned to Buyer forthwith without any
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9200419.v1
offset, deduction or charge and shall remain the property of the Buyer pending such refund and
return to Buyer.
37. To the extent that this Order is inconsistent with any prior order or pleading with
respect to the Motion in this chapter 11 Bankruptcy Case, the terms of this Order shall govern.
38. A separate judgment consistent with this order is being entered concurrently
pursuant to Bankruptcy Rules 7054 and 9014 and Fed. R. Civ. P. 54.
IT IS SO ORDERED.
###
Date: May 29, 2015
Case 2:13-bk-14135-RK Doc 1163 Filed 05/29/15 Entered 05/29/15 11:09:38 Desc
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9200419.v1
Exhibit A
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF BEVERLY HILLS, IN THE
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOTS 1961 AND 1962 OF TRACT NO. 6380, IN THE CITY OF BEVERLY HILLS, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 69 PAGES 11 THROUGH 20
INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 4331-001-045
Case 2:13-bk-14135-RK Doc 1163 Filed 05/29/15 Entered 05/29/15 11:09:38 Desc
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