Woodbridge Liquidation Trust 10-K for FY2020
Woodbridge Liquidation Trust (WBQNL)
10-K
2020-09-28
For: 2020-06-30
View Original
Added on
April 06, 2026
About this 10-K
Woodbridge Liquidation Trust filed this 10-K on September 28, 2020, covering the fiscal year ended June 30, 2020 (FY2020).
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
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For the fiscal year ended June 30, 2020
OR
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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For the transition period from _______ to _______
Commission File Number 000-56115
Woodbridge Liquidation Trust
(Exact name of registrant as specified in its charter)
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Delaware
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36-7730868
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employment Identification No.)
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14140 Ventura Boulevard
Suite 302
Sherman Oaks, California
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91423
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code: (310) 765-1550
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Name of each exchange on which registered
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None
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N/A
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Securities registered pursuant to Section 12(g) of the Act:
Class A Liquidation Trust Interests
(Title of Class)
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
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☐ Yes ☒ No
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Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.
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☐ Yes ☒ No
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Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter)
during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
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☒ Yes ☐ No
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the
definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
(Check one):
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Large accelerated filer ☐
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Accelerated filer ☐
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Non-accelerated filer ☐
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Smaller reporting company ☒
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(Do not check if smaller reporting company)
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Emerging growth company ☒
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
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☐ Yes ☒ No
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State the aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to which the price at which the common equity was last sold, or the average
bid and asked price of such common equity, as of the last business day of the registrant’s most recently completed second fiscal quarter.
-------$0-------
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY
PROCEEDINGS DURING THE PRECEDING FIVE YEARS:
Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Section 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution
of securities under a plan confirmed by a court.
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☒ Yes ☐ No
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DOCUMENTS INCORPORATED BY REFERENCE
None
Part I
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Page
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Item 1.
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1
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Item 1A.
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16 | |
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Item 1B.
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25 | |
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Item 2.
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26 | |
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Item 3.
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26 | |
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Item 4.
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31 |
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Part II
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Item 5.
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31 |
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Item 6.
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33 |
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Item 7.
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33 | |
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Item 7A.
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39 | |
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Item 8.
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39 | |
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Item 9.
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39 | |
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Item 9A.
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40 |
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Item 9B.
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40 |
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Part III
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Item 10.
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40 |
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Item 11.
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43
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Item 12.
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49
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Item 13.
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49
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Item 14.
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51
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Part IV
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Item 15.
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53
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CAUTIONARY NOTE ABOUT FORWARD-LOOKING STATEMENTS
The Woodbridge Liquidation Trust (the “Trust”) is a Delaware statutory trust. It was formed on February 15, 2019, the effective date (the “Plan Effective Date”) of the First Amended Joint Chapter 11 Plan of Liquidation dated August 22, 2018 of Woodbridge Group of Companies, LLC and Its Affiliated Debtors (the “Plan”). The Trust was formed to implement the terms of the
Plan. The Plan was confirmed by the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) on October 26, 2018 in the jointly administered chapter 11 bankruptcy cases (the “Bankruptcy Cases”) of Woodbridge
Group of Companies, LLC and its affiliated chapter 11 debtors (collectively, the “Debtors”), Case No. 17-12560 (BLS).
In this Annual Report on Form 10-K (“Annual Report”), all beneficial interests in the Trust, including both Class A Liquidation Trust Interests and Class B Liquidation Trust Interests, are
collectively referred to as “Liquidation Trust Interests.”
The material terms of the Plan which relate to holders of Liquidation Trust Interests (the “Interestholders”) are described in this Annual Report, as well as in the Disclosure Statement for the First Amended Joint Chapter 11 Plan of Liquidation of The Woodbridge Group of Companies, LLC and Its Affiliated Debtors (the “Disclosure Statement”). The Disclosure Statement was approved by the
Bankruptcy Court on August 22, 2018, and was distributed or made available to creditors of the Debtors and other parties in interest pursuant to Section 1125 of Title 11 of the United States Code (the “Bankruptcy Code”).
A copy of the Plan is included as Exhibit 2.1 to this Annual Report. A copy of the order of the Bankruptcy Court confirming the Plan is filed as Exhibit 99.1 hereto.
Statements Regarding Forward-Looking Statements. This Annual Report, and other filings by the Trust with the U.S. Securities and Exchange
Commission (“SEC”), or written statements made by the Trust in press releases or in other communications, oral or written, may contain “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, as
codified in Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act” and, together with the Securities Act, the “Acts”).
Such statements include, without limitation, financial guidance and projections and statements with respect to expectation of future financial condition, changes in net assets in liquidation, cash flows, plans, targets, goals, objectives, and
performance of the Trust. Such forward-looking statements also include statements that are preceded by, followed by, or that include the words “believes,” “estimates,” “plans,” “expects,” “intends,” “is anticipated,” “will continue,” “project,”
“may,” “could,” “would,” “should” and similar expressions, and all other statements that are not historical facts. All such forward-looking statements are based on the Trust’s current expectations and involve risks and uncertainties which may cause
actual results to differ materially from those set forth in such statements. Such risks and uncertainties include the amount of sales proceeds, timing of sales of real estate assets, timing and amount of funds needed to complete construction of
single family homes, amount of general and administrative costs, the number and amount of successful litigations and/or settlements and the ability to recover thereon, the amount of funding required to continue litigations, the continuing impact of
the COVID-19 pandemic, interest rates, adverse weather conditions in the regions in which properties to be sold are located, economic and political conditions, changes in tax and other governmental rules and regulations applicable to the Trust and
its subsidiaries, and other risks identified and described in “Item 1A. Risk Factors” of this Annual Report. These risks and uncertainties are beyond the ability of the Trust to control, and in many cases, the Trust cannot predict the risks and
uncertainties that could cause its actual results to differ materially from those indicated by the forward-looking statements.
In connection with the “safe harbor” provisions of the Acts, the Trust has identified and is disclosing important factors, risks and uncertainties that could cause its actual results to differ
materially from those projected in forward-looking statements made by the Trust, or on the Trust’s behalf. (See “Item 1A. Risk Factors” of this Annual Report.) These cautionary statements are to be used as a reference in connection with any
forward-looking statements. The factors, risks and uncertainties identified in these cautionary statements are in addition to those contained in any other cautionary statements, written or oral, which may be made or otherwise addressed in connection
with a forward-looking statement or contained in any of the Trust’s subsequent filings with the SEC. Because of these factors, risks and uncertainties, the Trust cautions against placing undue reliance on forward-looking statements. Although the
Trust believes that the assumptions underlying forward-looking statements are currently reasonable, any of the assumptions could be incorrect or incomplete, and there can be no assurance that forward-looking statements will prove to be accurate.
Forward-looking statements speak only as of the date on which they are made. Except as may be required by law, the Trust does not undertake any obligations to modify, update or revise any forward-looking statement to take into account or otherwise
reflect subsequent events, corrections in or revisions of underlying assumptions, or changes in circumstances arising after the date that the forward-looking statement was made.
Part I
| Item 1. |
Business
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| A. |
Overview
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The Trust and its wholly-owned subsidiary Woodbridge Wind-Down Entity LLC (the “Wind-Down Entity”) were formed pursuant to the Plan. The purpose of the Trust is to prosecute various causes of
action owned by the Trust (the “Causes of Action”), to litigate and resolve claims filed against the Debtors, to pay allowed administrative and priority claims against the Debtors (including professional fees), to receive cash from certain
sources and, in accordance with the Plan, to make distributions of cash to Interestholders subject to the retention of various reserves and after the payment of Trust expenses and administrative and priority claims. The Trust has no other purpose.
Sources and potential sources of cash include the net proceeds from settlements of various Causes of Action, remittances of cash distributed from the Wind-Down Entity, “Fair Funds” recoveries from the SEC, and assets forfeited to the U.S. Department
of Justice by former owners and principals of the Debtors.
The purpose of the Wind-Down Entity is, through its subsidiaries (the “Wind-Down Subsidiaries” and, with the Wind-Down Entity, the “Wind-Down Group”), to develop (as applicable),
market, and sell the real estate assets owned by the Wind-Down Subsidiaries to generate cash to be remitted to the Trust after the payment of Wind-Down Group expenses and subject to the retention of various reserves. The Trust, the Remaining Debtors
(as defined in Section B of this Item 1) and the Wind-Down Group are collectively referred to in this Form 10-K as the “Company.”
Most of the Debtors filed for chapter 11 bankruptcy protection in December 2017 (certain other Debtors filed cases on later dates). During the Bankruptcy Cases, the major constituencies reached
agreements on several matters, including new management for the Debtors, the manner and timing of the liquidation of the Debtors’ assets, and relative priorities to such distributions among creditors. Certain of these agreements were embodied in the
Plan, which was confirmed in October 2018 and became effective on February 15, 2019. Under the Plan, holders of certain claims against the Debtors received Class A Liquidation Trust Interests, which became registered pursuant to Section 12(g) of the
Exchange Act on December 24, 2019.
The Trust will be terminated upon the first to occur of (i) the making of all distributions required to be made and a determination by the Liquidation Trustee that the pursuit of additional causes of
actions held by the Trust is not justified or (ii) February 15, 2024. However, the Bankruptcy Court may approve an extension of the term if deemed necessary to facilitate or complete the recovery on, and liquidation of, the Trust’s assets. The
Wind-Down Group will be dissolved upon the completion of the liquidation of its assets.
The Trust is administered by a Liquidation Trustee. The Liquidation Trustee is authorized, subject to the oversight of a six-member supervisory board (the “Supervisory Board”), to carry out
the purposes of the Trust. The Wind-Down Entity is managed by a three-member board of managers, one of whom is the chief executive officer.
Pursuant to the Plan and the Liquidation Trust Agreement of the Trust (as amended, the “Trust Agreement”), a copy of which is filed as Exhibits 3.2, 3.3 and 3.4 to this Annual Report,
distributions to Interestholders are net of the payment of Trust expenses and administrative and priority claims and the retention of various reserves. Such amounts withheld from distributions may include the cost of maintaining, litigating, and
resolving Causes of Action, fees and expenses of the Liquidation Trustee and the Supervisory Board, and fees and expenses of the Trust’s attorneys and consultants. Furthermore, cash received from the Wind-Down Group is net of the payment of Wind-Down
Group expenses and the retention of reserves by the Wind-Down Group.
Distributions will be made by the Trust only to the extent that the Trust has sufficient assets (over amounts retained for contingent liabilities and future costs and expenses, among other things) to
make such payments in accordance with the Plan and the Trust Agreement. No distribution is required to be made to any Interestholder unless such Interestholder is to receive in such distribution at least $10.00. If the Trust mails a distribution
check to an Interestholder and the Interestholder fails to cash the check within 180 calendar days, or if the Trust mails a distribution check to an Interestholder and such check is returned to the Trust as undeliverable and is not claimed by the
Interestholder within 180 days, then the Interestholder may not only lose its right to the amount of that distribution, but also may be deemed to have forfeited its right to any reserved and future distributions under the Plan.
Distributions will be made at the sole discretion of the Liquidation Trustee in accordance with the provisions of the Plan and the Trust Agreement. Since the Plan Effective Date, the Liquidation
Trustee and the Supervisory Board have authorized four cash distributions to the holders of Class A Interests. The following table summarizes the distributions declared for the periods from February 15, 2019 (inception) through June 30, 2020 and
February 15, 2019 (inception) through September 25, 2020:
| Date |
$ per
Class A
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Distributions Declared ($ in millions)
During the Period from
February 15, 2019 (inception) through
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Declared
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Interest
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June 30, 2020
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September 25, 2020
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Distributions Declared
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First
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3/15/2019
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$
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3.75
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$
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44.70
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$
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44.70
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Second
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1/2/2020
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4.50
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53.43
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53.43
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Third
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3/31/2020
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2.12
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25.00
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25.00
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Fourth
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7/13/2020
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2.56
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-
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29.93
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Total
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$
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12.93
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$
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123.13
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$
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153.06
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| B. |
Organization of the Company
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On the Plan Effective Date, the Plan was implemented, and the Trust and the Wind-Down Entity were formed. By operation of the Plan, the following assets were transferred to the Trust on the Plan
Effective Date:
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an aggregate of $5.0 million in cash from the Debtors for the purpose of funding the Trust’s initial expenses of operation;
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the following Causes of Action: (i) all claims and causes of action formerly held or acquired by the Debtors and (ii) all causes of action contributed by Noteholders or Unitholders (as defined in Section C of this Item 1) to the Trust as
“Contributed Claims” pursuant to the Plan;
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all of the outstanding membership interests of the Wind-Down Entity; and
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certain other non-real estate related assets and entities.
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The Trust was established for the benefit of its Interestholders and for the purpose of collecting, administering, distributing and liquidating the Trust assets in accordance with the Plan and the
Trust Agreement, to resolve disputed claims asserted against the Debtors, to litigate and/or settle the Causes of Action, and to pay certain allowed claims and statutory fees, in each case to the extent required by the Plan. The Trust has no
objective to continue or engage in the conduct of a trade or business, except to the extent reasonably necessary to, and consistent with, the purpose of the Trust as set forth in the Plan.
On the Plan Effective Date and by operation of the Plan, the Wind-Down Entity became a wholly-owned subsidiary of the Trust. The Wind-Down Entity was organized for the purpose of accepting, holding,
and administering the Debtors’ real estate assets and distributing the net proceeds of liquidating such real estate assets to the Trust in accordance with the Plan and the Limited Liability Company Agreement of the Wind-Down Entity (the “Wind-Down
Entity LLC Agreement”), consistent with the purposes of the Trust. As of the Plan Effective Date, the Wind-Down Group received, in the aggregate, assets consisting of approximately $31.34 million in cash and approximately $585.01 million of
real estate and other assets.
By operation of the Plan, (i) the real estate assets of the Debtors were automatically vested in the Wind-Down Group; (ii) all existing equity interests in Woodbridge Group of Companies, LLC and
Woodbridge Mortgage Investment Fund 1, LLC (together, the “Remaining Debtors”) were cancelled and extinguished and new equity interests in the Remaining Debtors, representing all of the issued and outstanding equity interests of the Remaining
Debtors, were issued to the Trust; and (iii) all of the Debtors other than the Remaining Debtors were automatically dissolved.
As of the Plan Effective Date, each of the Debtors’ directors, officers and managers was terminated and the Trust succeeded to all of their powers in respect of the assets vested in the Trust. Each
of the Debtors other than the Remaining Debtors was automatically dissolved on the Plan Effective Date pursuant to the Plan.
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C.
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Material Developments Leading to Confirmation of the Plan
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Prior to the commencement of the Bankruptcy Cases, the Debtors were part of a group of more than 275 affiliated entities formed by, and formerly controlled by, Robert Shapiro (“Shapiro”) which
were used by Shapiro to perpetrate a large-scale “Ponzi” scheme. As part of the scheme, Shapiro is believed to have used the group of affiliated entities to raise more than $1.22 billion from over 10,000 investors nationwide. Money was raised in the
form of one of two primary products: (1) five-year private placement products that were styled, marketed or sold as “units” in Woodbridge Mortgage Investment Fund 1, LLC, Woodbridge Mortgage Investment Fund 2, LLC, Woodbridge Mortgage Investment Fund
3, LLC, Woodbridge Mortgage Investment Fund 3a, LLC, Woodbridge Mortgage Investment Fund 4, LLC, Woodbridge Commercial Bridge Loan Fund 1, LLC, and Woodbridge Commercial Bridge Loan Fund 2, LLC (each, a “Fund Debtor”) and (2) purportedly
secured promissory products of from 12 to 18 months that were styled, marketed or sold as “notes,” “mortgages” or “loans” by one or more Fund Debtors. In this Annual Report, any and all investments, interests or other rights with respect to any of
the Fund Debtors that were styled, marketed or sold as “units” are referred to as “Units” and the holders of Units are referred to as “Unitholders.” Similarly, in this Annual Report, any and all investments, interests or other rights
with respect to any of the Fund Debtors that were styled, marketed or sold as “notes,” “mortgages” or “loans” are referred to as “Notes” and the holders of Notes are referred to as “Noteholders.”
The proceeds of the sale of Units and Notes were not used for the purposes that were represented to investors, but were instead used to pay (i) over $400 million of “interest” and “principal” to
existing investors, (ii) approximately $64.5 million in commissions to sales agents engaged in the sale of the investments, and (iii) at least $21.2 million for the personal benefit of Shapiro or his related entities or family members (including, for
example, the purchase of luxury items, travel, wine, and the like). Additionally, the Debtors and Shapiro used investor funds to purchase at least 193 residential and commercial properties located primarily in Los Angeles, California, and Carbondale,
Colorado. The Debtors had one segment, known as “Riverdale,” which did, in fact, originate loans to unrelated third parties, but the dollar amount of these third-party loans was a fraction of the amount of the loans made to disguised affiliates.
In the years leading up to the commencement of their Bankruptcy Cases, the Debtors faced a variety of inquiries from state and federal regulators. In particular, in or around September 2016, the SEC
began investigating certain of the Debtors (and certain non-debtor affiliates) in connection with possible securities law violations, including the alleged offer and sale of unregistered securities, the sale of securities by unregistered brokers, and
the commission of fraud in connection with the offer, purchase, and sale of securities.
In late 2017, the Debtors found it increasingly difficult to raise new capital from investors. The Debtors were unable to make the December 1, 2017 interest and principal payments due on the Notes.
Shapiro hired an outside financial restructuring firm and a chief restructuring officer to manage the Debtors on or about December 1, 2017, and on December 4, 2017 chapter 11 bankruptcy cases for 279 of the Debtors were commenced (cases for the 27
other Debtors were filed on later dates). An immediate effect of commencement of the Bankruptcy Cases was the imposition of the automatic stay under Bankruptcy Code section 362(a), which, with limited exceptions, enjoined the commencement or
continuation of all collection efforts by creditors, the enforcement of liens against property of the Debtors, and the continuation of litigation against the Debtors during the pendency of the Bankruptcy Cases. Under Chapter 11 of the Bankruptcy
Code, a company may continue to operate its business under the supervision of the Bankruptcy Court while it attempts to reorganize.
As of the commencement of the Bankruptcy Cases, certain discovery-related disputes regarding administrative subpoenas issued by the SEC were proceeding before the United States District Court for the
Southern District of Florida, but the SEC had not yet asserted any claims against any of the Debtors or their affiliates. Subsequent to the commencement of the Bankruptcy Cases, the SEC commenced legal proceedings in the Florida district court
against, among other defendants, Shapiro, a trust related to Shapiro or his family, and the Debtors.
In addition to the SEC investigation, certain of the Debtors received information requests from state securities regulators in approximately 25 states. As of the commencement of the Bankruptcy Cases,
regulators in eight states had filed civil or administrative actions against one or more of the Debtors and certain of their sales agents, alleging they engaged in the unregistered offering of securities in their respective jurisdictions and
unlawfully acted as unregistered investment advisors or broker-dealers. Six states—Massachusetts, Texas, Arizona, Pennsylvania, South Dakota and Michigan—entered permanent cease and desist orders against one or more of the Debtors related to their
alleged unregistered sale of securities. Several of these inquiries were resolved prior to the commencement of the Bankruptcy Cases through settlements, which included the entry of consent orders. Certain of the Debtors entered into consent orders
with California, Arizona, Michigan, Oregon, Idaho, and Colorado during the Bankruptcy Cases.
On December 14, 2017, the Office of the United States Trustee for the District of Delaware (the “U.S. Trustee’s Office”) formed the Official Committee of Unsecured Creditors (the “Unsecured
Creditors’ Committee”). On December 20, 2017, the SEC filed its action in the Florida district court, as discussed above, detailing much of the massive fraud perpetrated by Shapiro before the commencement of the Bankruptcy Cases. The SEC asked
the Florida district court to appoint a receiver who would displace the Debtors’ management in the Bankruptcy Cases, but the Florida district court declined to immediately act on this request in light of the pending Bankruptcy Cases.
On December 28, 2017, the Unsecured Creditors’ Committee filed a motion seeking appointment of a chapter 11 trustee to replace the Debtors’ management team, arguing that the team was “hand-picked by
Shapiro, and ha[d] done his bidding both before and after the filing of these cases.” The SEC later made a similar request, arguing that the new “independent” management team was “completely aligned [with Shapiro] in controlling this bankruptcy.”
On or about January 23, 2018, the Debtors, the Unsecured Creditors’ Committee, the SEC, and groups of Noteholders and Unitholders entered into a term sheet (the “Joint Resolution”) that
resolved the trustee motions and several other matters. The Joint Resolution included, among other provisions, the following key provisions:
| • |
A new board of managers—with no ties whatsoever to Shapiro—was formed to govern the Debtors (the “New Board”). The New Board consisted of Richard Nevins, M. Freddie Reiss, and Michael Goldberg.
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The New Board was empowered to select a CEO or CRO, subject to the consent of the Unsecured Creditors’ Committee and the SEC.
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The New Board was empowered, subject to the SEC’s consent, to select new counsel for the Debtors or to re-confirm Gibson Dunn & Crutcher LLP as counsel for the Debtors.
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The holders of Units were permitted to form a single one- or two-member fiduciary Unitholder committee (the “Unitholder Committee”) to advocate for the interests of Unitholders.
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The holders of Notes were permitted to form a single six to nine-member fiduciary Noteholder committee (the “Noteholder Committee”) to advocate for the interests of Noteholders.
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As authorized by the Joint Resolution, the New Board selected Frederick Chin to serve as the Chief Executive Officer and Bradley D. Sharp to serve as the Chief Restructuring Officer during the
pendency of the Bankruptcy Cases. Under the direction of the New Board, the Debtors also retained and employed Development Specialists, Inc. as the Debtors’ restructuring advisor and Klee, Tuchin, Bogdanoff & Stern LLP (n/k/a KTBS Law LLP) as new
bankruptcy co-counsel to represent them in the Bankruptcy Cases with Young Conaway Stargatt & Taylor LLP.
On April 16, 2018, the Debtor defendants in the Florida proceedings entered into a consent agreement with the SEC and consented to the entry of a judgment. Under the consent agreement and the
judgment, the Debtors agreed, among other things, that (i) the Debtor defendants would be permanently enjoined from violations of certain sections of the Securities Act and the Exchange Act; (ii) upon motion of the SEC, the Florida district court
would determine whether it was appropriate to order disgorgement and/or a civil penalty against the Debtor defendants, and if so, the amount of any such disgorgement and/or civil penalty; and (iii) in connection with any hearing regarding
disgorgement and/or a civil penalty, inter alia, the Debtor defendants would be precluded from arguing that they did not violate the federal securities laws as alleged in the SEC action and the Debtor
defendants would not challenge the validity of the consent agreement or judgment. On May 1, 2018, the Bankruptcy Court approved the consent agreement and the judgment. On May 21, 2018, the Florida district court entered the judgment against the
Debtor defendants in the SEC action and entered an order administratively closing such action. The Debtors reached a settlement with the SEC to resolve the disgorgement and civil penalty claims asserted by the SEC against the Debtor defendants.
During the Bankruptcy Cases the Debtors sold numerous parcels of owned real property, in each case with Bankruptcy Court approval. Additionally, the major constituencies in the Bankruptcy Cases
reached agreements on several matters, including new management for the Debtors, the manner and timing of the liquidation of the Debtors’ assets, and the relative priorities to such distributions among creditors, certain of which agreements were
embodied in the Plan.
Under the Plan, on the Plan Effective Date, former Noteholders, Unitholders, and general unsecured creditors holding allowed claims were granted Class A Liquidation Trust Interests in exchange for
their claims. Pursuant to a compromise in the Plan, former Unitholders also received Class B Liquidation Trust Interests (Unitholders received Class A Liquidation Trust Interests on account of only 72.5% of their allowed Unit Claims, and received
Class B Liquidation Trust Interests on account of the remaining 27.5% of their allowed Unit Claims).
The Plan incorporated a “netting” mechanism for Note and Unit investors whereby such investors received Liquidation Trust Interests based on their “Net” Note Claim (defined as claims arising from or
in connection with any Notes) or their “Net” Unit Claim (defined as claims arising from or in connection with any Units). The netting was achieved by reducing the Note or Unit claim by the aggregate amount of all pre-bankruptcy distributions received
by the Noteholder or Unitholder (other than return of principal). For example, a Noteholder holding a Note with a face amount of $100,000 who received $10,000 of “interest” before the Debtors filed bankruptcy would be deemed to hold a Net Note Claim
of $90,000. Such Noteholder would receive Class A Liquidation Trust Interests on account of a $90,000 Net Note Claim.
On December 24, 2019, the Trust’s Registration Statement on Form 10 became effective under the Exchange Act. The trading symbol for the Class A Liquidation Trust Interests is WBQNL. The Class A Liquidation Trust Interests are quoted on the OTC Link ATS, the SEC-registered alternative trading system and are eligible for the Depository Trust Company’s Direct Registration (DRS) services.
| D. |
Plan Provisions Regarding the Company
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| 1. |
Corporate governance provisions
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Under the Plan and the Wind-Down Entity LLC Agreement, the Trust is required at all times to be the sole and exclusive owner of all membership interests of the Wind-Down Entity. The Trust is
prohibited from selling, transferring, or otherwise disposing of its membership interests in the Wind-Down Entity without approval of the Bankruptcy Court, and the Wind-Down Entity is prohibited from issuing any equity interest to any other person.
Under the Plan and the Wind-Down Entity LLC Agreement, the Wind-Down Entity is required to be managed by a three-member board of managers, one of whom is the chief executive officer. Since the Plan Effective Date, the board of managers of the
Wind-Down Entity (the “Board of Managers”) has consisted of Richard Nevins, M. Freddie Reiss, and Frederick Chin and the chief executive officer of the Wind-Down Entity has been Frederick Chin. The Wind-Down Entity is also conducting business
under the name “Viewpoint Collection.”
The Wind-Down Entity is required to advise the Trust regarding its affairs on at least a monthly basis, reasonably make available such information as is necessary for any reporting by the Trust, and
advise the Trust of material actions. Excess cash of the Wind-Down Entity (cash that is in excess of budgeted reserves for ongoing operations and other anticipated obligations and expenses as determined by the Board of Managers) is required to be
remitted to the Trust on a quarterly basis, and the Wind-Down Entity is restricted in its ability to invest or gift any of its assets or make asset acquisitions.
The Bankruptcy Court has retained certain jurisdiction regarding the Trust, the Liquidation Trustee, the Supervisory Board, the Wind-Down Entity, the Board of Managers, and assets of the Trust and
the Wind-Down Entity, including the determination of all disputes arising out of or related to administration of the Trust and the Wind-Down Entity.
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2.
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Treatment under the Plan of holders of claims against and equity interests in the Debtors
|
The Plan identified 12 types of Claims against and equity interests in the Debtors, eight of which were “classified” (i.e., placed into formalized classes under the Plan) and four of which are not.
Claims required to be paid in full under the Plan are referred to as “Unimpaired Claims.” Four types of claims are not classified—(i) claims arising under Bankruptcy Code sections 503(b), 507(a)(2), 507(b), or 1114(e)(2) (“Administrative Claims”),
(ii) claims by professionals employed in the Bankruptcy Cases pursuant to Bankruptcy Code sections 327, 328, 1103, or 1104 for compensation or reimbursement of costs and expenses relating to services provided during the period from the Petition Date
through and including the Plan Effective Date (“Professional Fee Claims”), (iii) tax claims entitled to priority under Bankruptcy Code section 507(a)(8) (“Priority Tax Claims”), and (iv) debtor-in-possession financing claims (“DIP Claims”). The
foregoing claims are all Unimpaired Claims and have been or will be paid in full. Although the amounts may be subject to negotiation based on the Debtors’ and creditors’ records, and to ultimate determination, if necessary, in the Bankruptcy Court,
liabilities resulting from any such Administrative Claims, Professional Fee Claims, Priority Tax Claims, and DIP Claims that are allowed are analogous, in substance, to accounts payable. As of September 25, 2020, there were no allowed and unpaid DIP
claims. As of September 25, 2020, there were approximately $.01 million of unpaid Administrative Claims, approximately $.18 million of unpaid Priority Tax Claims and no remaining unpaid Professional Fee Claims.
The remaining eight types are claims and equity interests that have been classified. Classified claims and equity interests are treated in accordance with the priorities established under the
Bankruptcy Code.
The classified claims and equity interests under the Plan are the following (each, a “Class” of claims or interests):
| • |
“Class 1 Claims” or “Other Secured Claims,” which are claims, other than DIP Claims, that are secured by a valid, perfected, and enforceable lien on property in which the Debtors have an interest, which lien is valid, perfected, and
enforceable under applicable law and not subject to avoidance under the Bankruptcy Code or applicable non-bankruptcy law.
|
| • |
“Class 2 Claims” or “Priority Claims,” which are claims that are entitled to priority under Bankruptcy Code section 507(a), other than Administrative Claims and Priority Tax Claims.
|
| • |
“Class 3 Claims” or “Standard Note Claims,” which are any Note Claims other than Non-Debtor Loan Note Claims (as defined below).
|
| • |
“Class 4 Claims” or “General Unsecured Claims,” which are unsecured, non-priority claims that are not Note Claims, Subordinated Claims (as defined below), or Unit Claims.
|
| • |
“Class 5 Claims” or “Unit Claims,” which are Unit Claims (as defined in Item 1, Section C of this Annual Report).
|
| • |
“Class 6 Claims” or “Non-Debtor Loan Note Claims,” which are any Note Claims that are or were purportedly secured by an unreleased assignment or other security interest in any loans or related interests as to which the lender was a Debtor
and the underlying borrower actually is or actually was a person that is not a Debtor.
|
| • |
“Class 7 Claims” or “Subordinated Claims,” which are collectively, (a) any claim, secured or unsecured, for any fine, penalty, or forfeiture, or for multiple, exemplary, or punitive damages, to the extent such fine, penalty, forfeiture, or
damages are not compensation for actual pecuniary loss suffered by the holder of such claim and (b) any other claim that is subordinated to General Unsecured Claims, Note Claims, or Unit Claims pursuant to Bankruptcy Code section 510, a final
order of the Bankruptcy Court, or by consent of the creditor holding such claim.
|
| • |
“Class 8” or “Equity Interests,” which are all previously issued and outstanding common stock, preferred stock, membership interests, or other ownership interests in any of the Debtors outstanding immediately prior to the Plan Effective
Date.
|
Holders of Class 1 Claims are creditors of the Wind-Down Entity, and holders of Class 2 Claims are creditors of the Trust. Although the amounts may be subject to negotiation based on the Debtors’ and
creditors’ records, and to ultimate determination, if necessary, in the Bankruptcy Court, liabilities resulting from any such claims that are allowed are analogous, in substance, to accounts payable. As of September 25, 2020, there were no allowed
and unpaid Class 1 Claims or Class 2 Claims.
Under the Plan, three Classes of claims, when the claims are allowed under the Plan, entitle the holders thereof to become holders of Liquidation Trust Interests. The holders of these claims
belonged, as of the Petition Date, to one or more of the following categories:
| • |
Standard Note Claims (Class 3)
|
| • |
General Unsecured Claims (Class 4)
|
| • |
Unit Claims (Class 5)
|
Standard Note Claims are Claims arising from any and all investments, interests or other rights with respect to any of the seven Debtors identified as a “Fund Debtor” under the Plan that were styled,
marketed or sold as “notes,” “mortgages,” or “loans.” As of September 25, 2020, the aggregate outstanding amount of allowed Class 3 Standard Note Claims (net of prepetition distributions of interest) was approximately $703.48 million, including those
Class 6 Non-Debtor Loan Note Claims that were reclassified as Class 3 Standard Note Claims in accordance with the Plan. See “Holders of Non-Debtor Loan Note Claims” below. The Trust’s estimate of the
aggregate outstanding amount of disputed Class 3 Standard Note Claims as of September 25, 2020 is approximately $1.88 million (net of prepetition distributions of interest).
General Unsecured Claims include any unsecured, non-priority claim asserted against any of the Debtors that is not a Note Claim, Subordinated Claim or Unit Claim, and generally include the claims of
trade vendors, landlords, general liability claimants, utilities, contractors, employees and numerous others. As of September 25, 2020, the aggregate outstanding amount of allowed Class 4 General Unsecured Claims was approximately $5.36 million, and
the Trust estimates that the aggregate outstanding amount of disputed Class 4 General Unsecured Claims as of September 25, 2020 was approximately $15.32 million.
Unit Claims are Claims arising from any and all investments, interests or other rights with respect to any of the seven Debtors identified as a “Fund Debtor” under the Plan that were styled, marketed
or sold as “units.” As of September 25, 2020, the aggregate outstanding amount of allowed Class 5 Unit Claims was approximately $178.95 million, and the Trust estimates that the aggregate outstanding amount of disputed Class 5 Unit Claims as of
September 25, 2020 was approximately $1.54 million (in each case, net of prepetition distributions of interest).
Holders of allowed claims in Classes 3, 4 and 5 are deemed to hold an amount and class of Liquidation Trust Interests that is prescribed by the Plan based on the amount of their respective claims,
as follows:
| • |
Each holder of an allowed claim in Class 3 (Standard Note Claims) is deemed to hold one (1) Class A Liquidation Trust Interest for each $75.00 of Net Note Claims held by the applicable Noteholder
with respect to its Allowed Note Claims.
|
| • |
Each holder of an allowed claim in Class 4 (General Unsecured Claims) is deemed to hold one (1) Class A Liquidation Trust Interest for each $75.00 of allowed General Unsecured Claims held by the
applicable creditor.
|
| • |
Each holder of an allowed claim in Class 5 (Unit Claims) is deemed to hold 0.725 of a Class A Liquidation Trust Interest and 0.275 of a Class B Liquidation Trust Interest for each $75.00 of Net
Unit Claims held by the applicable Unitholder with respect to its allowed Unit Claims.
|
In addition, under the Plan, holders of Standard Note Claims and Unit Claims were permitted, at the time they cast their votes on the Plan, to elect to contribute their causes of action against any
non-released persons to the Trust for prosecution (the “Contributed Claims”). The relative share of the Trust recoveries for any so electing Noteholder or Unitholder in respect of its respective Class 3 Claim or Class 5 Claim has been enhanced
by having the amount that otherwise would be the applicable Net Note Claim or Net Unit Claim increased by a multiplier of 105%, referred to as the “Contributing Claimant’s Enhancement Multiplier.” The Plan releases the Debtors, the members of the New
Board, the Unsecured Creditors’ Committee, the Noteholder Committee, and the Unitholder Committee, and any party related to such persons from liability, but generally excludes from such release any prepetition insider of any of the Debtors, any
non-debtor affiliates of the Debtors or insider of any such non-debtor affiliates, any prepetition employee of any of the Debtors involved in the marketing or sale of Notes or Units, and any other person involved in such marketing, including certain
persons identified on a schedule attached to the Plan.
Distributions of cash by the Trust on account of Class A Liquidation Trust Interests and Class B Liquidation Trust Interests are required to be made in accordance with a prescribed priority, referred
to as the “Liquidation Trust Interests Waterfall.” (See “Part I, Item 1. Business, D. Plan Provisions Regarding the Company, 4. Liquidation Trust Interests under the Plan”). Fractional Liquidation Trust Interests, if any, are rounded in accordance
with the rounding convention established by the Plan.
Other Classes under the Plan include Subordinated Claims, Non-Debtor Loan Note Claims, and Equity Interests. Although holders of Subordinated Claims are not Interestholders of the Trust, they are
deemed to have retained a residual right to receive any cash that remains in the Trust after the final administration of all the Trust assets and payment in full to holders of both Class A and Class B Liquidation Trust Interests, including interest
at the rate and to the extent set forth in the Plan. The Trust does not expect that there will be any such residual cash.1
| 3. |
Assets and liabilities of the Company
|
The Trust has no authority to engage in any trade or business except to the extent reasonably necessary to, and consistent with, its purpose. The purpose of the Trust is to hold and effectuate an
orderly disposition of the Trust assets, including liquidation to cash and maximization of value of the Causes of Action by litigation, settlement or otherwise, to receive remittances from the Wind-Down Entity, to resolve disputed claims asserted
against the Debtors, to pay certain allowed Unimpaired Claims and statutory fees, and to distribute cash to Interestholders in accordance with the Plan and the Trust Agreement. The Trust is governed by the Trust Agreement, the material terms of which
are summarized in this Annual Report. The summary does not purport to be complete and is qualified in its entirety by reference to the Trust Agreement.
As of the Plan Effective Date, all cash and other property of the Debtors were transferred to or otherwise became vested in the Trust or the Wind-Down Group. The assets received by the Trust included
cash (consisting of Liquidation Trust Funding of approximately $5.0 million), the Causes of Action, outstanding membership interests of the Wind-Down Entity and of the Remaining Debtors, and certain other non-real estate related assets and entities.
The assets received by the Wind-Down Group included real estate assets of the Debtors, including real properties and real property loans.
Under the Plan, the Trust may:
| • |
liquidate any and all Trust assets;
|
| • |
pursue the Causes of Action, including preference, fraudulent conveyance, and other avoidance actions, lender liability claims, fraud claims and breach of fiduciary duty claims;
|
| • |
resolve, either consensually or through litigation, all disputed Claims asserted against the Debtors; and
|
| • |
make all distributions required under the Plan.
|
Under the Plan, the Trust received the Causes of Action, certain of which were acquired from the Debtors and others of which were contributed by holders of Notes or Units to the Trust as Contributed
Claims under the terms of the Plan. Certain of the Causes of Action have been settled or resolved while others are currently the subject of pending litigation (see “Item 3. Legal Proceedings” of this Annual
Report). Still other Causes of Action involve potential claims under investigation by the Trust, including claims against FINRA member firms and investment advisers registered with the SEC whose associated persons sold Woodbridge securities.
Due to the inherently uncertain nature of litigation, the Trust is unable to make a meaningful estimate of the aggregate value of the Causes of Action that have not been settled or resolved (the
“Unresolved Causes of Action”). Therefore, in accordance with the Company’s accounting policies, other than in respect of Causes of Action that are the subject of an executed settlement agreement, no recoveries have been recorded in the Company’s
consolidated financial statements for any Unresolved Causes of Action.
The status of outstanding Unimpaired and Impaired Claims as of September 25, 2020 is summarized below, with amounts in millions:
|
Estimated Allowed
Claims
|
Disputed Claims at Asserted
Amount
|
|||||||
|
Unimpaired Claims (Liabilities)
|
$
|
0.09
|
$
|
0.81
|
||||
|
Impaired Claims (Beneficial Interests)
|
$
|
893.56
|
$
|
18.73
|
||||
1 Pursuant to the Plan, all holders of Class 6 Non-Debtor Loan Note Claims elected to reclassify their claims as Class 3 Standard Note Claims, and the dollar amount of such claims is included in the Standard Note Claim summary above.
Holders of Equity Interests are not Interestholders of the Trust and will receive no payments; as of the Plan Effective Date, all Equity Interests were cancelled.
As of the Plan Effective Date, the liabilities of the Trust included accounts payable and accrued expenses of approximately $5.78 million, representing pre-Plan Effective Date professional fees. In
addition, as of February 15, 2019 the liabilities of the Trust under the Liquidation Basis of Accounting included estimated future costs to manage the Trust such as Supervisory Board and Liquidation Trustee fees, U.S. Trustee’s Office fees,
professional fees, insurance and other costs of $31.78 million.
The Trust may also receive assets from two sources in addition to the Causes of Action.
First, in addition to funds already received, the Trust may receive additional contributions from “Fair Funds,” reflecting recoveries by the SEC as a result of settlements with, among others, Jeri
Shapiro and securities brokers engaged in the offer and sale of the Debtors’ securities (the “Fair Fund Recoveries”).
Second, the Trust may receive funds from the United States Department of Justice on account of assets forfeited by, among others, Robert and Jeri Shapiro (the “Forfeited Asset Recoveries”). In
connection with his guilty plea in August 2019 to counts of conspiracy to commit mail and wire fraud and tax evasion arising out of the Ponzi scheme described above, Robert Shapiro agreed to forfeit all property constituting or derived from proceeds
traceable to his offenses, as well as substitute property, to the United States, and Jeri Shapiro has consented to the forfeiture to the extent that it includes any assets that she may own. The Trust filed a petition in the Florida court to claim the
forfeited assets as property of the Debtors’ estates, and therefore as property that had vested in the Trust pursuant to the Plan. The Trust has agreed to the terms and form of an agreement with the United States Department of Justice to resolve its
claim, and the agreement was approved by the Bankruptcy Court on September 17, 2020. The agreement remains subject to approval by the United States District Court. Among other things, the agreement provides for the release of specified forfeited
assets by the United States Department of Justice to the Trust, and for the Trust to liquidate those assets on terms designed to maximize their value by commercially reasonable means and distribute the net sale proceeds to persons who are
“Qualifying Victims” within the meaning of the settlement agreement. The Trust believes that all holders of allowed Class 3 and Class 5 Claims, and the purchasers of Liquidation Trust Interests from such holders, are Qualifying Victims under the
settlement agreement, but that such term does not include any holders of allowed Class 4 Claims.
The forfeited property generally includes cash, jewelry, artwork, collectibles, a motor vehicle, wine, valuables and apparel. Subject to receipt of the required court approval, the Trust expects to liquidate the forfeited assets in a way intended to maximize their values. Currently, the Trust
is unable to estimate the amount of the expected recovery from such sales, but believes that such sales are likely to be substantially complete on or before the end of the Trust’s fiscal year ending June 30, 2022. Distributions of the net proceeds
of the liquidating sales will be made to Qualifying Victims in accordance with the settlement agreement. The Trust is not aware of any potential future Forfeited Asset Recoveries by the Trust, other than the Forfeited Asset Recovery represented by
the settlement agreement.
Under the Plan, the Wind-Down Group has been established for purposes consistent with those of the Trust and may liquidate its assets, by means of sales of real property and otherwise, and make
remittances to the Trust. As of the Plan Effective Date, the Wind-Down Group received, in the aggregate, assets consisting of approximately $31.34 million in cash and approximately $585.01 million of real estate and other assets.
As of the Plan Effective Date, the Company had consolidated net real estate assets held for sale and other assets of approximately $585.01 million, cash of approximately $36.34 million, accounts
payable and accrued expenses of approximately $5.78 million, accrued liquidation costs of $232.07 million and net assets in liquidation of approximately $383.49 million.
| 4. |
Liquidation Trust Interests under the Plan
|
Each holder of an allowed claim in the Plan’s Class 3 (Standard Note Claims), Class 4 (General Unsecured Claims) and Class 5 (Unit Claims) was granted one or more beneficial interests in the Trust (a
Liquidation Trust Interest) of a class (i.e. either Class A and/or Class B) and in an amount prescribed by the Plan and the Trust Agreement, as follows:
| • |
In the case of an allowed claim in the Plan’s Class 3 (Standard Note Claims), the holder was granted one (1) Class A Liquidation Trust Interest in the Trust for each $75.00 of Net Note Claims held by the applicable Noteholder with respect
to its Allowed Note Claims. Allowed Net Note Claims are determined as the outstanding principal amount of Note Claims held by a particular Noteholder, minus the aggregate amount of all prepetition distributions (other than return of
principal) received by such Noteholder.
|
| • |
In the case of an allowed claim in the Plan’s Class 4 (General Unsecured Claims), the holder was granted one (1) Class A Liquidation Trust Interest in the Trust for each $75.00 of allowed General Unsecured Claims held by the applicable
creditor.
|
| • |
In the case of an allowed claim in the Plan’s Class 5 (Unit Claims), the holder was granted 0.725 of a Class A Liquidation Trust Interest in the Trust and 0.275 of a Class B Liquidation Trust Interest in the Trust for each $75.00 of Net
Unit Claims held by the applicable Unitholder with respect to its allowed Unit Claims. Allowed Net Unit Claims were determined as the outstanding principal amount of Unit Claims held by a particular Unitholder, minus the aggregate amount of
all prepetition distributions (other than return of principal) received by such Unitholder.
|
The Plan permitted Noteholders and Unitholders to contribute certain causes of action (the Contributed Claims) to the Trust. In the case of any Noteholder or Unitholder that elected, on such holder’s
Plan ballot, to contribute such holder’s Contributed Claims to the Trust, the relative share of Liquidation Trust Interests granted to any so electing Noteholder or Unitholder has been enhanced by increasing the amount that otherwise would be the
applicable Net Note Claim or Net Unit Claim by the Contributing Claimant’s Enhancement Multiplier of 105% before converting such Net Note Claim or Net Unit Claim to Liquidation Trust Interests.
With respect to disputed claims, upon resolution of any disputed claims and to the extent such claims become allowed claims, holders of such Claims in the Plan’s Class 3, Class 4 and Class 5 will be
granted Liquidation Trust Interests.
As of September 25, 2020, $887.79 million of Class 3, Class 4 and Class 5 Claims are Allowed. The Trust estimates, as of September 25, 2020, that approximately $5.77 million of additional Class 3,
Class 4 and Class 5 Claims will ultimately be allowed. As more such claims become allowed, additional Liquidation Trust Interests will be granted. The percentage recovery to be received by each Class A Liquidation Trust Interest holder will be based
on (i) the amount of cash ultimately available for distribution to such holders; and (ii) the actual amount of Class 3, Class 4, and Class 5 Claims that ultimately become allowed.
Pursuant to the Plan and the Trust Agreement, distributions to Interestholders are net of any costs and expenses incurred by the Trust, including in connection with administering the Trust and
litigating or otherwise resolving the various Causes of Action and disputed claims. Such amounts withheld from distribution may include fees and expenses of the Liquidation Trustee, premiums for directors and officers insurance, and other insurance
and fees and expenses of attorneys and consultants. Distributions will be made only from assets of the Trust and only to the extent that the Trust has sufficient assets (in excess of amounts retained for contingent liabilities and future costs and
expenses, among other things) to make such payments in accordance with the Plan and the Trust Agreement. No distribution is required to be made to any Interestholder unless such Interestholder is to receive in such distribution at least $10.00.
Distributions will be made at the sole discretion of the Liquidation Trustee in accordance with the provisions of the Plan and the Trust Agreement. Since the Plan Effective Date, the Liquidation
Trustee has declared four distributions to the Class A Interestholders. The distributions are paid on account of the then-allowed claims and a deposit is made into a restricted cash account on account of (a) Class A Interests that are issued as
claims are resolved, (b) claims that are recently resolved, (c) uncashed distribution checks, (d) distributions that were withheld due to pending avoidance actions and (e) distributions where the Trust is waiting for further beneficiary information.
The following tables summarize the distributions declared, distributions paid and the activity in the restricted cash account for the periods from February 15, 2019 (inception) through June 30, 2020 and from February
15, 2019 through September 25, 2020.
|
During the Period from
February 15, 2019 (inception) through
June 30, 2020 ($ in Millions)
|
During the Period from
February 15, 2019 (inception) through
September 25, 2020 ($ in Millions)
|
|||||||||||||||||||||||||||||
| Date Declared |
$ per
Class A Interest
|
Total Declared
|
Paid
|
Restricted
Cash
Account
|
Total Declared
|
Paid
|
Restricted
Cash
Account
|
|||||||||||||||||||||||
|
Distributions Declared
|
||||||||||||||||||||||||||||||
|
First
|
3/15/2019
|
$
|
3.75
|
$
|
44.70
|
$
|
42.32
|
$
|
2.38
|
$
|
44.70
|
$
|
42.32
|
2.38
|
||||||||||||||||
|
Second
|
1/2/2020
|
4.50
|
53.43
|
51.19
|
2.24
|
53.43
|
51.19
|
2.24
|
||||||||||||||||||||||
|
Third
|
3/31/2020
|
2.12
|
25.00
|
24.19
|
0.81
|
25.00
|
24.19
|
0.81
|
||||||||||||||||||||||
|
Fourth
|
7/13/2020
|
2.56
|
-
|
-
|
-
|
29.93
|
29.20
|
0.73
|
||||||||||||||||||||||
|
Subtotal
|
$
|
12.93
|
$
|
123.13
|
$
|
117.70
|
$
|
5.43
|
$
|
153.06
|
$
|
146.90
|
$
|
6.16
|
||||||||||||||||
|
Distributions Reversed
|
||||||||||||||||||||||||||||||
|
(a)
|
Disallowed
|
(1.65
|
)
|
(1.75
|
)
|
|||||||||||||||||||||||||
|
(b)
|
Returned
|
0.15
|
0.27
|
|||||||||||||||||||||||||||
|
Subtotal
|
(1.50
|
)
|
(1.48
|
)
|
||||||||||||||||||||||||||
|
(c)
|
Distributions Paid from Reserve Account
|
(1.56
|
)
|
(1.58
|
)
|
|||||||||||||||||||||||||
|
Distributions Payable, Net
|
as of 6/30/2020:
|
$
|
2.37
|
as of 9/25/2020:
|
$
|
3.10
|
||||||||||||||||||||||||
| (a) |
As a result of claims being disallowed.
|
| (b) |
Distribution checks returned or not cashed.
|
| (c) |
Paid as claims are allowed or resolved.
|
The Plan provides for a Liquidation Trust Interests Waterfall that specifies the priority and manner of distribution of available cash. On each distribution date, the Liquidation Trustee is required
to distribute available cash as follows:
| • |
First, to each Interestholder of Class A Liquidation Trust Interests pro rata based on such Interestholder’s number of Class A Liquidation Trust Interests, until the aggregate amount of all such distributions on account of the Class A
Liquidation Trust Interests equals the product of (i) the total number of all Class A Liquidation Trust Interests and (ii) $75.00;
|
| • |
Thereafter, to each Interestholder of Class B Liquidation Trust Interests pro rata based on such Interestholder’s number of Class B Liquidation Trust Interests, until the aggregate amount of all such distributions on account of the Class B
Liquidation Trust Interests equals the product of (i) the total number of all Class B Liquidation Trust Interests and (ii) $75.00;
|
| • |
Thereafter, to each Interestholder of a Liquidation Trust Interest (whether a Class A Liquidation Trust Interest or a Class B Liquidation Trust Interest) pro rata based on such Interestholder’s number of Liquidation Trust Interests until
the aggregate amount of all such distributions on account of the Liquidation Trust Interests equals an amount equivalent to interest, at a per annum fixed rate of 10%, compounded annually, accrued on the aggregate principal amount of all Net
Note Claims, allowed General Unsecured Claims, and Net Unit Claims outstanding from time to time on or after December 4, 2017, treating each distribution of available cash made after the Plan Effective Date pursuant to the immediately
preceding two subparagraphs as reductions of such principal amount; and
|
| • |
Thereafter, pro rata to the holders of allowed Subordinated Claims until such claims are paid in full, including interest, at a per annum fixed rate of 10% or such higher rate as may be specified in any consensual agreement or order
relating to a given Holder, compounded annually, accrued on the principal amount of each allowed Subordinated Claim outstanding from time to time on or after December 4, 2017.
|
| E. |
Operations and Management of the Company
|
|
1.
|
The Trust
|
Michael I. Goldberg, Esq. is the Liquidation Trustee. The Liquidation Trustee was unanimously selected by the Unsecured Creditors’ Committee, the Noteholder Committee, and the Unitholder Committee
and approved by the Bankruptcy Court.
The Trust is also required to have a trustee that has its principal place of business in the State of Delaware (the “Delaware Trustee”). The Delaware Trustee is Wilmington Trust Company,
National Association, who has been appointed for the purpose of fulfilling the requirements of the Delaware Statutory Trust Act.
The Trust does not have directors, executive officers or employees. Subject as described below to certain supervision by the Supervisory Board, the Liquidation Trustee has the full power, right,
authority and discretion, unless otherwise provided in the Plan, to carry out and implement all applicable provisions of the Plan.
In addition to other actions that the Liquidation Trustee has the authority to take, the Liquidation Trustee may do any and all of the following:
| • |
review, reconcile, compromise, settle, or object to claims and resolve such objections as set forth in the Plan, free of any restrictions of the Bankruptcy Code or applicable bankruptcy rules;
|
| • |
calculate and make distributions and calculate and establish reserves under and in accordance with the Plan;
|
| • |
retain, compensate, and employ professionals and other persons to represent the Liquidation Trustee with respect to and in connection with its rights and responsibilities;
|
| • |
establish, maintain, and administer documents and accounts of the Debtors as appropriate, which are to be segregated to the extent appropriate in accordance with the Plan;
|
| • |
maintain, conserve, collect, settle, and protect the Trust’s assets (subject to the limitations described in the Plan);
|
| • |
sell, liquidate, transfer, assign, distribute, abandon, or otherwise dispose of the assets of the Trust or any part of such assets or interest in such assets upon such terms as the Liquidation Trustee determines to be necessary,
appropriate, or desirable;
|
| • |
negotiate, incur, and pay the expenses of the Trust;
|
| • |
prepare and file any and all informational returns, reports, statements, tax returns, and other documents or disclosures relating to the Debtors that are required under the Plan, by any governmental unit, or by applicable law;
|
| • |
compile and maintain the official claims register, including for purposes of making initial and subsequent distributions under the Plan;
|
| • |
take such actions as are necessary or appropriate to wind-down and dissolve the Debtors;
|
| • |
comply with the Plan, exercise the Liquidation Trustee’s rights, and perform the Liquidation Trustee’s obligations; and
|
| • |
exercise such other powers as deemed by the Liquidation Trustee to be necessary and proper to implement the Plan.
|
The powers and authority of the Liquidation Trustee are subject to limitations under the Trust Agreement. On behalf of the Trust or the Interestholders, the Liquidation Trustee is prohibited from
doing any of the following:
| • |
entering into or engaging in any trade or business (other than the management and disposition of the assets of the Trust), and no part of the Trust’s assets or the proceeds, revenue or income therefrom may be used or disposed of by the
Trust in furtherance of any trade or business;
|
| • |
except as expressly permitted in the Trust Agreement, reinvesting any assets of the Trust;
|
| • |
selling, transferring, or otherwise disposing of the Trust’s membership interests in the Wind-Down Entity without further approval of the Bankruptcy Court; or
|
| • |
incurring any indebtedness except as contemplated by the Plan or the Trust Agreement.
|
The Liquidation Trustee is permitted to invest cash of the Trust, including any earnings thereon or proceeds therefrom, any cash realized from the liquidation of the assets of the Trust, or any cash
that is remitted to the Trust from the Wind-Down Entity or any other person. Investments by the Liquidation Trustee are not required to comply with Bankruptcy Code section 345(b). Accordingly, the Liquidation Trustee will not be required to obtain a
secured bond from financial institutions at which Trust funds are deposited or invested. However, investments must be investments that are permitted to be made by a “liquidating trust” within the meaning of Treasury Regulation section 301.7701-4(d),
as reflected in such regulation, or under applicable guidelines, rulings, or other controlling authorities. Accordingly, cash not available for distribution and cash pending distribution is expected to be held in demand and time deposits, such as
short-term certificates of deposit, in banks or other savings institutions, or other temporary, liquid investments such as Treasury bills.
The Liquidation Trustee is subject to removal and replacement following notice to the SEC and upon a determination by the Bankruptcy Court that “cause” exists for such removal and replacement, using
the standard set forth under Bankruptcy Code Section 1104.
Pursuant to the Plan and the Trust Agreement, the activities of the Liquidation Trustee are subject to the supervision of the Supervisory Board, a six-member supervisory board currently consisting of
Lynn Myrick, John J. O’Neill, and Terry Goebel (all three of whom were nominated by the Unsecured Creditors’ Committee), Jay Beynon (nominated by the Noteholder Committee), Dr. Raymond C. Blackburn (nominated by the Unitholder Committee), and M.
Freddie Reiss (elected to such position by the other members of the Supervisory Board). Mr. Reiss is the sole member of the Audit Committee of the Supervisory Board.
Under the Plan, the Supervisory Board has the rights and powers of a duly elected board of directors of a Delaware corporation. The Supervisory Board is charged with supervision of the Liquidation
Trustee in accordance with the Plan and the Trust Agreement, determination of the Liquidation Trustee’s incentive compensation, if any, and approval of the appointment of any successor Liquidation Trustee. In the event that votes or consents by the
Supervisory Board for and against any matter (other than any matter regarding the supervision, evaluation or compensation of the Liquidation Trustee) are equally divided, the Liquidation Trustee has the power to cast the deciding vote.
Additionally, approval by the Supervisory Board or, in the absence of such approval, an order of the Bankruptcy Court, is necessary concerning any of the following matters:
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any sale or other disposition of an asset of the Trust, or any release, modification or waiver of existing rights as to an asset of the Trust, if the asset at issue exceeds $500,000 in estimated value;
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any compromise or settlement of litigation or controverted matter proposed by the Liquidation Trustee involving claims in excess of $500,000; and
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any retention by the Liquidation Trustee of professionals.
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The approval of sale of real estate assets owned by the Wind-Down Group is the subject of an agreed-upon protocol between the Trust and the Wind-Down Entity.
Members of the Supervisory Board may resign following written notice to the Liquidation Trustee and the other members of the Supervisory Board. Such resignation will become effective on the later to
occur of (i) the day specified in such written notice and (ii) the date that is thirty (30) days after the date such notice is delivered. A member of the Supervisory Board may be removed only by entry of a Bankruptcy Court order finding that cause
exists to remove such member.
In the event that a member of the Supervisory Board is removed, dies, becomes incapacitated, resigns or otherwise becomes unavailable for any reason, such member’s replacement shall be appointed in
accordance with the Plan, which establishes procedures for the appointment of such replacements. If a member of the Supervisory Board nominated by the Unsecured Creditors’ Committee is no longer available for any reason, then the remaining member(s)
selected by the Unsecured Creditors’ Committee are to select the replacement member(s). If a member of the Supervisory Board nominated by either the Noteholder Committee or the Unitholder Committee is no longer available for any reason, then the
available former members of the Noteholder Committee or Unitholder Committee, as applicable, are to be requested to, and may, select a replacement. If no former members of the Noteholder Committee or the Unitholder Committee, as applicable, are
reasonably available and willing to make the selection, then the remaining members of the Supervisory Board are to select the replacement member(s).
Holders of Liquidation Trust Interests have no voting rights with respect to the selection or replacement of the Liquidation Trustee or the Delaware Trustee and have no other voting rights.
The Audit Committee of the Trust was appointed by the Supervisory Board to oversee (i) the integrity of the annual, quarterly and other financial statements of the Trust, (ii) the independent
auditor’s qualification and independence, (iii) the performance of the Trust’s independent auditor, and (iv) the compliance by the Trust with legal and regulatory requirements. The Audit Committee also is authorized, subject to final review by all
disinterested members of the Supervisory Board in each case, to review and approve all related-person transactions in which the Trust is a participant as provided for in the Trust’s Related Person Transaction Policy. The Audit Committee is comprised
of M. Freddie Reiss, who also serves as Chairman of the committee.
| 2. |
The Wind-Down Group
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Under the Plan and the Wind-Down LLC Agreement, the Wind-Down Entity is managed by a three-member Board of Managers, one of whom is the chief executive officer. The Board of Managers is required to
consist of the Chief Executive Officer of the Wind-Down Entity and two other persons. Pursuant to the Plan, the initial Board of Managers is comprised of Frederick Chin (the Chief Executive Officer of the Wind-Down Entity), Richard Nevins and M.
Freddie Reiss (former members of the Debtors’ New Board).
The Board of Managers is charged with the administration of the Wind-Down Entity, including the power to carry out any and all acts necessary, convenient or incidental to or for the furtherance of
the purposes of the Wind-Down Entity. Except as otherwise provided in the Plan and the Wind-Down LLC Agreement, no individual member of the Board, in his or her capacity as such, has any authority to bind the Wind-Down Entity.
Members of the Board of Managers serve until they resign, die, become incapacitated or are removed for Cause by the Trust. “Cause” is defined in the Wind-Down Entity LLC Agreement, with respect to
any Manager, as (i) the embezzlement, misappropriation of any property or other asset of the Wind-Down Entity; (ii) the commission of, or the entering of a plea of nolo contendere or guilty with respect to, any felony whatsoever or any misdemeanor
involving moral turpitude; or (iii) any willful and material breach of the terms of the Wind-Down Entity LLC Agreement or the terms of the Plan applicable to such Manager. Any member of the Board of Managers may resign by giving not less than thirty
(30) calendar days’ prior notice of resignation to the other members. Vacancies on the Board of Managers are required to be filled by the Trust.
Subject to the Plan and the Wind-Down Entity LLC Agreement, the Board of Managers also is charged with the supervision and oversight of the Chief Executive Officer. The Chief Executive Officer of the
Wind-Down Entity is Frederick Chin. In addition to the Chief Executive Officer, the Wind-Down Entity had 16 employees as of September 25, 2020.
Subject to the supervision of the Board of Managers as described above, the Chief Executive Officer has the authority, except as otherwise provided in the Plan, to carry out and implement all
applicable provisions of the Plan for the ultimate benefit of the Trust, including the authority to do the following:
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retain, compensate, and employ professionals and other persons to represent the Wind-Down Entity in connection with its rights and responsibilities;
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establish, maintain, and administer accounts of the Debtors as appropriate;
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maintain, develop, improve, administer, operate, conserve, supervise, collect, settle, and protect the assets of the Wind-Down Entity;
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sell, liquidate, transfer, assign, distribute, abandon, or otherwise dispose of the assets of the Wind-Down Entity, including through the formation on or after the Plan Effective Date of any new or additional legal entities to be owned by
the Wind-Down Entity to own and hold particular assets of the Wind-Down Entity separate and apart from any other assets of the Wind-Down Entity, upon such terms as the Chief Executive Officer determines to be necessary, appropriate, or
desirable;
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invest cash of the Debtors and their estates, including any cash realized from the liquidation of the assets of the Wind-Down Entity;
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negotiate, incur, and pay the expenses of the Wind-Down Entity;
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exercise and enforce all rights and remedies regarding any loans or related interests as to which the lender was a Debtor and the underlying borrower actually is or actually was a person or organization that is not a Debtor, including any
such rights or remedies that any Debtor or any estate was entitled to exercise or enforce prior to the Plan Effective Date on behalf of a holder of a Non-Debtor Loan Note Claim, and including rights of collection, foreclosure, and all other
rights and remedies arising under any promissory note, mortgage, deed of trust, or other document with such underlying borrower or under applicable law;
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comply with the Plan, exercise the Chief Executive Officer’s rights, and perform the Chief Executive Officer’s obligations; and
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exercise such other powers as deemed by the Chief Executive Officer to be necessary and proper to implement the provisions of the Plan.
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Each of the Wind-Down Subsidiaries is managed by its member, the Wind-Down Entity. Frederick Chin serves as Chief Executive Officer of each of the Wind-Down Subsidiaries.
Distributions of cash or other assets of the Wind-Down Group are to be made as and when determined by the Board of Managers in its sole discretion, provided however that on the first business day
that is 30 calendar days after each calendar quarter-end, the Wind-Down Entity is to remit to the Trust as of such quarter-end any cash in excess of its budgeted amount for ongoing operations, other anticipated expenses and other Plan obligations.
| 3. |
Current year plan of operations
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During the remainder of the fiscal year ending June 30, 2021, the Trust plans to continue to engage in the resolution of claims filed against the Debtors, the evaluation and prosecution of the
Unresolved Causes of Action, and the payment of allowed administrative and priority claims against the Debtors (including professional fees). Subject to the receipt of remittances from the Wind-Down Entity, the payment of Trust expenses,
administrative and priority claims and the retention of various reserves, the Trust also plans to make distributions of cash to Interestholders in accordance with the Plan.
The Wind-Down Group is engaged in the marketing and sale of residential real estate properties and other real estate assets owned by the Wind-Down Subsidiaries, including (where such activities are
considered necessary or appropriate) the development and construction of real estate properties. In connection with its development projects, the Wind-Down Group contracts with third-party development management companies, general contractors,
architects, and design and furnishing companies to carry out and complete construction. The Wind-Down Group implements marketing initiatives to enhance the exposure of its real estate portfolio and retains third-party real estate brokers to list and
sell real estate assets currently held for sale.
As of September 25, 2020, the Wind-Down Group had seven single-family homes under construction and 15 real estate assets held for sale. These 15 real estate assets include two single-family homes,
two lots, four secured loans and seven other properties. For additional information regarding the real estate assets, see “Item 2. Properties” of this Annual Report. During the remainder of the fiscal year ending June 30, 2021, the Wind-Down Group
expects to complete the construction of most of the seven homes under development. The Wind-Down Group expects to fund its capital requirement for construction as well as its operating costs with cash on hand, proceeds from sales of real estate
assets, and if necessary, borrowings under its existing line of credit.
| 4. |
Termination and dissolution of the Company
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The Trust is required to be terminated, and the Liquidation Trustee discharged from duties, at such time as: (a) the Liquidation Trustee determines that the pursuit of additional causes of action
held by the Trust is not likely to yield sufficient additional proceeds to justify further pursuit of such causes of action and (b) all distributions required to be made by the Liquidation Trustee to the holders of allowed claims and to the
Interestholders under the Plan and the Trust Agreement have been made. Notwithstanding the above, the Trust must be terminated no later than February 15, 2024 unless the Bankruptcy Court, upon motion made within the six-month period before such date,
determines that a fixed period extension is necessary to facilitate or complete the recovery on, and liquidation of, the Trust’s assets, except that the Bankruptcy Court may not grant an extension that, together with any prior extensions, exceeds
three years unless the Trust has obtained a favorable letter ruling from the Internal Revenue Service to the effect that the further extension would not adversely affect the status of the Trust as a liquidating trust for federal income tax purposes.
The Trust may not be terminated at any time by the Interestholders. Upon any termination of the Trust, any remaining assets of the Trust that exceed the amounts required to be paid under the Plan may
be transferred by the Liquidation Trustee to the American Bankruptcy Institute Endowment Fund.
Pursuant to the Plan, following the sale or other disposition of all of the assets of the Wind-Down Entity, the Wind-Down Entity will be dissolved.
| F. |
Access to Information
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The Trust’s website is located at www.woodbridgeliquidationtrust.com. The information on the Trust’s website is not part of this Annual Report. Through its website, the Trust makes available, free of
charge, its annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and any amendments to those reports filed or furnished to the SEC. These reports are available as soon as reasonably practicable after the Trust
electronically files these reports with the SEC. The Trust also posts on its website its Code of Conduct and Conflict of Interest Policy, Code of Ethics, Insider Trading Policy and other corporate governance materials required by SEC regulation.
These documents are also available in print to any Interestholder requesting a copy from the Liquidation Trustee.
| Item 1A. |
Risk Factors
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An investment in the Liquidation Trust Interests involves various risks. An investor should carefully consider the risks and uncertainties described below and the other information included or
incorporated by reference in this Annual Report before deciding to invest in the Liquidation Trust Interests. Any of the risk factors set forth below could significantly and adversely affect the Company’s business, prospects, financial condition and
results of operations. As a result, the trading price of the Liquidation Trust Interests could decline, and an investor could lose a part or all of his or her investment.
Risks Relating to Pandemics or other Health Crises, such as the Recent Outbreak of the Novel Coronavirus (COVID-19)
The completion of construction of the Company’s development properties may be subject to delays and cost increases, causing delays in
distributions in respect of the Liquidation Trust Interests or reductions in the amounts available for such distributions. The Company’s ability to make such distributions in respect of Liquidation Trust Interest depends, in part, on its
ability to complete the construction of its properties on a timely basis and at the cost reflected in its consolidated financial statements. In light of the COVID-19 pandemic, certain of the Company’s third-party general contractors stopped work for
about three months, which affected several of the Company’s development properties. Other general contractors may also stop work voluntarily to ensure the safety of their workers or as a result of regulatory requirements. Furthermore, the Company’s
active construction sites must comply with new and additional regulations imposed by state and local governments in response to the recent coronavirus outbreak, including COVID-19 safety guidance for construction sites. The implementation of
compliance measures may cause increases in the cost of, or delays, including delays in the delivery of custom cabinets, furnishings and other construction materials and supplies. Such delays may have an impact on the cost and timing of completion of
construction at the affected properties.
The success of the Company’s marketing efforts, the timing of the sales of the Company’s properties and the value realized in such sales could
be adversely affected by any reduction in demand for residential real properties as a result of the COVID-19 pandemic or other crises. The Company’s ability to sell its properties at the values
reflected in its consolidated financial statements depends, in part on demand for such properties and on the global, national, regional and local economic environments. The risk, or public perception of the risk, of a pandemic or media coverage of
infectious diseases may cause persons seeking to purchase residential real properties to suspend or defer their efforts. Reduction in demand for the Company’s properties, which are located in areas affected by the recent COVID-19 outbreak such as Los
Angeles and New York, may cause delays in the sale of such properties or adversely affect the price at which they can be sold. Furthermore, the success of the Company’s marketing efforts depends, in part, on the ability of the Company’s brokers to
meet with and show Company properties to prospective purchasers and their agents. These and other marketing activities may become subject to restrictions on gatherings imposed by state and local governments in response to the recent coronavirus
outbreak.
The timing of any recoveries relating to the Trust’s prosecution of its Unresolved Causes of Action may be delayed. The timing of
distributions in respect of Liquidation Trust Interests depends, in part, on when net proceeds will be realized from the prosecution of the Trust’s Unresolved Causes of Action. Many of the courts in which the Causes of Action are being prosecuted
have issued orders temporarily suspending previously scheduled hearings and/or deferring or postponing the scheduling of additional hearings. Delays on the prosecution of the Causes of Action may result in delays in the Trust’s realization of net
proceeds from such actions and concomitant delays in distributions to holders of Liquidation Trust Interests relating thereto.
The Company’s operations may be adversely affected, extending the Company’s anticipated liquidation period. Delays in the completion of
the liquidation of the Company and the timing of net recoveries from the Trust’s prosecution of its Unresolved Causes of Action may extend its anticipated liquidation period, increase the overall operating and administrative costs of such liquidation
period, increase the overall operating and administrative costs of such liquidation, and reduce the amounts available for distribution in respect of the Liquidation Trust Interests.
Risks Relating to Limited Purpose and Recent Formation
The Trust has a limited purpose. The Trust cannot conduct any trade or business for profit. The Trust was formed pursuant to a chapter 11
bankruptcy plan. The Trust’s purpose is to prosecute Causes of Action, to litigate and resolve claims filed against the Debtors, to pay allowed administrative and priority claims against the Debtors (including professional fees), to receive cash from
certain sources and, in accordance with the Plan, to make distributions of cash to Interestholders subject to the retention of various reserves and after the payment of Trust expenses and administrative and priority claims.
The Trust does not expect to generate or receive cash other than from limited sources. The Trust does not expect to receive significant cash
other than from remittances to the Trust by the Wind-Down Entity (reflecting the net proceeds of the Wind-Down Group’s liquidation of its portfolio of real estate assets), litigation or settlement by the Trust of its Unresolved Causes of Action, Fair
Fund Recoveries and Forfeited Asset Recoveries.
The Trust’s cash may be invested only in investments permissible under applicable Treasury regulations. Cash not available for distribution
and cash pending distribution is expected to be held in demand and time deposits, such as short-term deposits in banks or other savings institutions or other temporary, liquid investments such as Treasury bills. Such investments are likely to bear
only low rates of interest, if any. There can be no assurance that cash will earn interest or dividends at a rate in excess of inflation, or at all. The Liquidation Trustee will not be liable in the event of the insolvency or failure of any
institution in which he or she has invested any funds of the Trust.
The Trust and the Wind-Down Entity are recently formed entities. Each was formed on February 15, 2019, the effective date of the Plan, and
has little operating history. The Wind-Down Group has a limited operating history upon which to forecast its future cash proceeds from real estate asset sales, net and cash used to pay accrued liquidation costs. In assessing its business prospects,
and its ability to make distributions to the Trust, you should consider various risks and difficulties encountered by newly organized companies. These risks include the Wind-Down Group’s ability to implement and execute its business plan and respond
effectively to operational and competitive challenges.
Risks Relating to Uncertainties Relating to Causes of Action
The amount and timing of receipts, if any, from Unresolved Causes of Action is inherently speculative and risky and cannot be predicted with
certainty. The Trust does not expect to receive the proceeds of the Unresolved Causes of Action unless and until it successfully obtains judgments or concludes settlements with respect to such Unresolved Causes of Action and is successful in
recovering on such judgments or settlements. The Trust may not be successful in litigating the Unresolved Causes of Action or, if it is successful, there could be a significant delay before any recovery is obtained and distributed (if ever). The
outcome of litigation is inherently speculative and uncertain, and there can be no assurance that the Trust will obtain a favorable judgment or settlement with respect to any particular Unresolved Cause of Action. In addition, even if there is a
favorable judgment or settlement, there can be no assurance that the Trust will be able to recover some or all of such judgment or settlement. Due to the speculative and risky nature of litigation and settlement efforts, the Company is unable to make
any meaningful determination of the potential outcome or value, in the aggregate, of the Unresolved Causes of Action.
Even if there is a recovery based on the Causes of Action, there can be no assurances that there will be sufficient funds to make any distributions
to Interestholders. Even if the Trust obtains a judgment or settlement based on the Unresolved Causes of Action and successfully recovers funds on account of such judgment or settlement, there can be no assurance that the Interestholders
will receive any proceeds from such judgment or settlement. Before Interestholders receive distributions, the Liquidation Trustee must pay Trust expenses and may set aside funds for future expenses or contingencies.
Limited information regarding developments in the Trust’s prosecution of Causes of Action and potential outcomes will be available; therefore, it may
be difficult for Interestholders to assess the amount of recovery. The Trust is required to file current and periodic reports with the SEC, as required under the Exchange Act. The Trust also expects to file with the Bankruptcy Court such
quarterly reports as may be required by the Plan and the Liquidation Trust Agreement. The SEC and Bankruptcy Court reports are expected to include certain information regarding pending Causes of Action. However, the Trust’s ability to disclose
details of the Causes of Action may be limited by the inherent nature and rules of judicial proceedings, including, among other things, proceedings and filings that are sealed by a court, matters involving attorney-client and work product privilege
and proceedings that are conducted on a confidential basis by agreement of the parties, such as settlement negotiations. To the extent that information regarding the Causes of Action cannot be provided, it will be difficult for investors in the
Liquidation Trust Interests to make any meaningful determination of the potential outcome or value of the Unresolved Causes of Action.
Risks Relating to Real Estate Assets
The Wind-Down Group may not be able to sell its real estate for its (or “real estate assets”) carrying value. The Wind-Down Group has
estimated the sales price of its real estate assets. There are many factors which are outside of the Wind-Down Group’s control which may impact the actual sales price of its real estate assets. The actual sales price will be determined through
negotiations between the Wind-Down Group and the prospective buyer. The actual sales price of the real estate assets may differ materially from the estimates.
There is limited liquidity in real estate investments, which could limit the Wind-Down Group’s flexibility. Real estate is a relatively
illiquid asset. The Wind-Down Group may not be able to sell its real estate assets at the optimal time to maximize its recovery. The Wind-Down Group is unable to acquire new real estate assets to diversify its portfolio and may lack the flexibility
to adapt in response to changes in economic and other conditions.
The Wind-Down Group’s real estate asset portfolio is not diversified. The vast majority of the estimated value of the Wind-Down Group’s real
estate portfolio is derived from several very exclusive and expensive single-family residential properties in the Beverly Hills and Bel-Air neighborhoods of Los Angeles. This lack of diversification means that the Wind-Down Group is particularly
subject to the risks and fluctuations in the price of high-end residential real property in this market, and any downturn in this market would result in a significant and outsized negative impact on the Wind-Down Group.
Many of the residential real properties are positioned within the high-end of the markets in which they are located and are subject to the costs and
risks associated with construction of such properties. High-end residential real properties are defined as homes priced in excess of $10 million. These homes tend to be larger, custom “estate” properties constructed with costly, high-quality
or designer materials. They tend also to be situated in highly attractive, affluent hillside neighborhoods featuring panoramic views and special amenities. The high-end market is characterized by relatively high and unpredictable construction costs
due to their unique designs, the cost of quality materials, installations by craftsman subcontractors and construction costs on hillside locations. Due to their design, engineering and construction complexities, hillside properties are frequently
subject to protracted construction periods. Additionally, projected completion schedules may be subject to further delays caused by material and craftsman subcontractor shortages.
High-end residential properties are subject to the costs and risks of marketing such properties. High-end residential properties commonly
require longer average DOM (days on the market) than conventional residential properties. During an extended marketing period, significant costs may be incurred to furnish, maintain and own the completed homes. The Wind-Down Group may be required to
refresh properties after completion of construction to accommodate prospective purchasers’ requests, which may result in additional costs to complete a sale.
The Wind-Down Group is dependent on the timely and consistent performance of services by third party service providers. To complete the
construction of its properties, the Wind-Down Group relies on general contractors, development managers, architects, maintenance personnel and other service providers who are not under the control of the Wind-Down Group. Inadequate or failed
performance of services by such third-party providers may subject the Wind-Down Group to delays in completing its properties that may increase the costs of construction.
The Los Angeles market, in which many of the properties owned by the Wind-Down Group are located, may experience a significant slackening of demand.
Slowing of demand in the Los Angeles market may further lengthen the number of days the properties remain on the market and negatively affect sales prices. In addition, periods of economic slowdown or recession in the United States and in other
countries, rising interest rates or declining demand for real estate, or the public perception that any of these events may occur, could result in a general decline in property values, which would adversely affect the financial position, net assets
in liquidation and cash flow of the Wind-Down Group. This would, in turn, adversely affect the Company’s ability to make distributions to its Interestholders.
If the Wind-Down Group is unable to sell properties within a reasonable period of time, it may need to consider bulk marketing and disposition.
The Wind-Down Group’s homes are highly customized and unique. The pool of potential buyers for these homes is very limited and, depending on market conditions, price reductions and/or bulk sales may be necessary. One or more bulk sales of the
Wind-Down Group’s properties is unlikely to yield as high an aggregate value as individual property sales, and a bulk sale may possibly depress prices in that market, negatively affecting the Wind-Down Group’s ability to recover the highest value for
its remaining properties located in the same area.
The Wind-Down Group’s working capital may not be sufficient to complete construction and may be restricted in its ability to access capital to complete construction.
As of August 31, 2020, and June 30, 2020, the Wind-Down Group has existing unrestricted cash and cash equivalents of approximately $78.02 million and $86.07 million, respectively. The Wind-Down Group may need to access its $25.00 million revolving
line of credit to complete construction of the properties currently under construction. Additional borrowings may be needed. Such borrowings, which would require approval of the Liquidation Trust, may not be available or may be very costly to
acquire. The revolving line of credit has a June 19, 2022 maturity date and can be extended for one additional year thereafter.
The Wind-Down Entity’s failure to meet repayment requirements under the revolving line of credit could harm its financial condition. The
repayment of the line of credit would be primarily from the sale of properties. The Wind-Down Entity does not have any other material source of revenue. Any failure of the Wind-Down Entity to have sufficient liquidity to (i) repay principal
payments when due or (ii) pay the outstanding balance at the expiration of the credit facility on June 19, 2022 could materially adversely affect the Wind-Down Entity’s financial condition and performance.
Risks related to building code and zoning compliance may adversely affect the financial condition and changes in net assets in liquidation of the
Wind-Down Group. The Wind-Down Group intends to complete the construction of numerous high-value properties, and, in connection therewith, must comply with zoning and building code requirements and pass frequent building inspections and
obtain other approvals to attain marketable homes. Delays or difficulties in connection with any of the foregoing may result in additional costs and delays, which depending on market conditions may adversely affect the financial position, net assets
in liquidation and cash flow of the Wind-Down Group. This would, in turn, adversely affect the Trust’s ability to make distributions to its Interestholders.
Risks related to competition from other developers of residential real properties in the markets in which the properties are located may adversely
affect the financial condition and changes in net assets in liquidation of the Wind-Down Group. The addition of new homes by the Wind-Down Group’s competitors may increase the available supply of similar properties, creating downward
pressure on home prices and protracted sales periods. In addition, one or more of the Wind-Down Group’s competitors may have superior financial resources that would allow them to continue in business for a longer term than the Wind-Down Group.
Risks related to commodity shortages, delivery interruptions, or price increases may delay the Wind-Down Group’s construction schedule and/or
increase costs. The Wind-Down Group is dependent on commodities such as lumber, steel, copper, gypsum and others that are commonly used in real property construction. These commodities are prone to market fluctuations and unpredictable
shortages due to demand, tariffs, and other factors. In addition, delivery of commodities is subject to interruptions due to the COVID-19 pandemic, labor strikes, civil unrest, and natural disasters. These and other factors beyond the Wind-Down
Group’s control may adversely affect the Wind-Down Group’s ability to timely complete construction and could increase overall costs.
Risk related to labor shortages and wage increases may prevent the Wind-Down Group from completing construction at its projected cost. The
Wind-Down Group is dependent on skilled contractors and craftsmen at its properties. Labor shortages, wage increases, and other factors beyond the Wind-Down Group’s control may affect the availability and cost of construction labor, and may
consequently adversely affect the Wind-Down Group’s ability to timely complete construction of its properties at its projected cost. This would, in turn, adversely affect the Trust’s ability to make distributions to its Interestholders.
The Wind-Down Group may remain subject to potential liabilities for construction defects for an extended period of time following the sale of its properties.
In connection with its sales of developed real properties and pursuant to applicable law, the Wind-Down Group may face potential claims for construction defects and property damage for up to 10 years following the completion of construction. There
can be no assurance that contractor’s guaranties and warranties will be adequate to indemnify the Wind-Down Group against all such claims. In the ordinary course of business, the Wind-Down Group seeks to obtain liability insurance in appropriate
amounts in order to address its potential liability for construction defects and property damage. However, the Company’s ability to continue to do so is subject to factors beyond its control, including the availability and cost of appropriate
insurance products. Furthermore, subject to applicable law and policy limitations, coverage may or may not be available for property damage or certain other liabilities resulting from construction defects. If contractor’s guaranties and insurance
policies were to prove insufficient, the Wind-Down Group may become exposed to further costs, including potentially expensive litigation and significant adverse judgments. Any significant liabilities resulting from such post-sale obligations may
adversely affect the Wind-Down Group’s financial position, net assets in liquidation and cash flow which would, in turn adversely affect the Trust’s ability to make distributions to its Interestholders. Furthermore, the amount of cash available for
distribution to the Trust upon completion of the Wind-Down Group’s activities may be affected by reserves that the Wind-Down Group may be required to set aside in order to make reasonable provision for future or unknown construction defect claims.
The Wind-Down Group’s success depends on the continuing contributions of its key personnel. The Wind-Down Group has a skilled management team
to oversee the development, marketing and sale of the properties. However, it does not have agreements with any key personnel that hinders such individuals’ ability to quit at will and, thus, any executive officer or key employee may terminate his or
her relationship with the Wind-Down Group at any time upon relatively short notice.
Adverse weather conditions and natural disasters could adversely affect the Wind-Down Group’s operations and results. Additionally, the Wind-Down
Group may not be able to obtain insurance at reasonable rates for natural disasters and other events which are beyond its control. Adverse weather conditions can delay and increase the costs of construction and may impact buyer demand for
properties. In more severe cases, such as wildfires, earthquakes and other natural disasters, weather conditions may damage the Wind-Down Group’s properties, perhaps for prolonged periods, which would negatively affect the value of those properties
and the ability to sell them. Southern California, where the bulk of the properties are located, is a seismically active area. Additionally, wildfires are prevalent in this region.
Additionally, although the Wind-Down Group insures its properties against earthquakes (for some properties subject to coverage limitations of insurance), wildfires, and other disasters, it may not be
able to obtain insurance for these types of events for all of its properties at reasonable rates. In particular, because many of the Wind-Down Group’s properties are located in areas subject to seismic activity and/or wildfires, the Wind-Down Group
may not be able to obtain insurance or sufficient insurance coverage against those types of disasters. A devastating natural disaster or other event in the vicinity of one of the properties could result in substantial losses. This would, in turn,
adversely affect the Trust’s ability to make distributions to its Interestholders.
The Wind-Down Group may suffer environmental liabilities which could result in substantial costs. Under various environmental laws, the
current or previous owner or operator of real property may be liable for the costs of removal or remediation of hazardous or toxic substances, including asbestos-containing materials that are located on or under the property. These laws often impose
liability whether the owner or operator knew of, or was responsible for, the presence of those substances. In connection with the Wind-Down Group’s ownership and operation of properties, it may be liable for these costs, which could be substantial.
In addition, the Wind-Down Group may become subject to claims by third parties based on damages and costs resulting from environmental contamination at or emanating from the properties.
Risks Relating to the Liquidation Trust Interests
The Liquidation Trust Interests are not suitable as a long-term investment. The Company intends to complete the liquidation in as short a
time as is consistent with the maximization of the value of its assets, without regard to the potential long-term capital appreciation of the real properties owned by the Wind-Down Group. The Company expects to complete the liquidation of its assets
during the fiscal year ending June 30, 2023.
The Liquidation Trust Interests are subject to forfeiture of their right to further distributions if a holder fails to promptly cash a distribution
check or fails to promptly claim a distribution check that is returned to the Trust as undeliverable. The Plan provides that if the Trust mails a distribution check to an Interestholder and the Interestholder fails to cash the check within
180 calendar days, or if the Trust mails a distribution check to an Interestholder and such check is returned to the Trust as undeliverable and is not claimed by the Interestholder within 180 days, then the Interestholder not only loses its right to
the amount of that distribution, but also is deemed to have forfeited its right to any reserved and future distributions under the Plan. It is the responsibility of the Interestholders to promptly cash all distribution checks received by them and to
contact the Trust’s transfer agent to ensure that the Trust has complete and accurate information.
The Trust cannot predict with certainty the timing or amount of distributions to the Interestholders. It is not possible to predict with
certainty the timing and amount of future distributions to Interestholders. The Trust will make distributions to the Interestholders only if and to the extent that it receives remittances from the Wind-Down Entity, proceeds from the Causes of Action,
Fair Fund Recoveries, or Forfeited Asset Recoveries, and then only to the extent that such remittances or proceeds exceed any amounts withheld by the Liquidation Trustee for, among other things, payment of, and reserves for, Trust expenses and
funding of the prosecution of remaining Causes of Action. Such cash receipts cannot be predicted with certainty because they are subject to conditions beyond the Trust’s control or which are inherently uncertain. Remittances by the Wind-Down Entity
will depend on the amount and timing of the Wind-Down Group’s sale of its portfolio of real estate properties, as well as the Wind-Down Group’s operating expenses. Contributions from the Fair Funds will depend on the SEC’s discretion and ability to
recover assets. Cash proceeds from Unresolved Causes of Action will depend on the Trust’s obtaining, and recovering on, favorable judgments or settlements with respect to any particular Unresolved Cause of Action.
The Trust cannot predict with certainty the percentage of distributions to which each holder of a Class A Liquidation Trust Interest will be entitled. Such
percentage will depend on the total number of Liquidation Trust Interests that ultimately are granted. Additional Liquidation Trust Interests will be granted to holders of disputed claims as and when the Trust resolves such claims, at which time they
become allowed claims under the Plan. To the extent that additional Liquidation Trust Interests are granted to the holders of allowed claims, the percentage of distributions to which each holder of a Class A Liquidation Trust Interest is entitled
will decrease. To the extent that additional claims are not allowed, no additional Liquidation Trust Interests will be granted in respect thereof and the percentage of distributions to which each holder of a Class A Liquidation Trust Interest is
entitled will increase. As of September 25, 2020, $887.79 million of Class 3, Class 4 and Class 5 Claims have become allowed claims. The Trust estimates, as of September 25, 2020, that an additional approximately $5.77 million of Class 3, Class 4 and
Class 5 Claims will ultimately be allowed. However, the actual number of allowed claims may be materially different from the estimate.
The value of the Liquidation Trust Interests is expected to decrease over time. The value of the Liquidation Trust Interests will depend
primarily on the anticipated net liquidation value of the remaining assets of the Trust, which is expected to decrease with each cash distribution (if any) made to Interestholders.
The Class A Liquidation Trust Interests may be thinly traded. The Class A Liquidation Trust Interests are not listed on any national
securities exchange, but instead are traded on the over-the-counter market (OTC Link ATS) under the symbol WBQNL. As a result of relatively low trading volumes for the Class A Liquidation Trust Interests, the market price for the Class A Liquidation
Trust Interests may be difficult to establish. Accordingly, the Class A Liquidation Trust Interests may not be suitable for investors preferring highly liquid securities and may present challenges in profit-taking and other trading risks.
The market price for Class A Liquidation Trust Interests may be volatile. Many factors could cause
the market price of Class A Liquidation Trust Interests to rise and fall, including the following:
| • |
Actual or anticipated fluctuations in the Trust’s or the Wind-Down Group’s quarterly or annual financial results;
|
| • |
Failure of the Wind-Down Entity to maintain compliance with any financial covenants under its revolving line of credit;
|
| • |
Various market factors or perceived market factors, including rumors, whether or not correct, involving the Trust, the Wind-Down Group, the properties, potential buyers, or the Wind-Down Group’s competitors;
|
| • |
Sales, or anticipated sales, of large blocks of Liquidation Trust Interests, including short selling by investors;
|
| • |
Additions or departures of key personnel;
|
| • |
Regulatory or political developments;
|
| • |
Litigation and governmental or regulatory investigations;
|
| • |
Changes in real estate market conditions; and
|
| • |
General economic, political, and financial market conditions or events.
|
To the extent that there is volatility in the price of Class A Liquidation Trust Interests, the Trust may also become the target of securities litigation. Securities litigation could result in
substantial costs and divert the Trustee’s and the Supervisory Board’s attention and the Company’s resources as well as depress the value of Liquidation Trust Interests.
Certain holders of Class A Liquidation Trust Interests, deemed under the Bankruptcy Code to be “underwriters,” may not be able to sell or transfer
their Class A Liquidation Trust Interests in reliance upon the Bankruptcy Code’s exemption from the registration requirements of federal and state securities laws. Such “statutory underwriters” may include members of the Supervisory Board
and holders of ten percent (10%) or more of the Liquidation Trust Interests. Statutory underwriters may not be able to offer or sell their Class A Liquidation Trust Interests without registration under the Securities Act or applicable state
securities (i.e., “blue sky”) laws unless such offer and sale is exempted from the registration requirements of such laws. The offer and sale of Class A Liquidation Trust Interests by statutory underwriters in
reliance upon an exemption from registration under the Securities Act may require compliance with the requirements and conditions of Rule 144 of such law, including those regarding the holding period, the adequacy of current public information
regarding the Trust, sale volume restrictions, broker transactions, and the filing of a notice.
Potential conflicts of interest exist among the classes of Liquidation Trust Interests. The existence of separate classes of Liquidation
Trust Interests could give rise to occasions when the interests of the Interestholders could diverge, conflict or appear to diverge or conflict. Operational and financial decisions by the Liquidation Trustee regarding the litigation could favor one
class (i.e., Class A or Class B) of Interestholders over another, adversely affecting the market value of a particular class of Liquidation Trust Interests or the distribution to that particular class of
Liquidation Trust Interests.
The Class A Liquidation Trust Interests may become the subject of third-party tender offers. The Trust believes that one or more institutional
investors have, or in the future may acquire, an interest in conducting a tender offer for the Class A Liquidation Trust Interests. Such tender offers may be commenced without the offeror having negotiated with the Trust to make price or other terms
of the offer more attractive, and without the offeror having sought the Trust’s recommendation of the offer to its holders. As a result of thin trading of the Class A Liquidation Trust Interests on the over-the-counter market, the liquidity of such
securities may be limited and it may be difficult to establish a market price for such securities. Holders of Class A Liquidation Trust Interests presented with a tender offer may be at a disadvantage in evaluating such offer.
Risks Relating to Management and Control
The Trust is controlled by the Liquidation Trustee and the Interestholders have no voting rights regarding decisions made on behalf of the Trust.
All decisions concerning the conduct of the Causes of Action and distribution of assets of the Trust are to be made by the Liquidation Trustee, in accordance with the terms of the Plan and the Trust Agreement, with approval by the Supervisory Board
for certain decisions as set forth in the Trust Agreement. The Interestholders have no right to elect or remove the Liquidation Trustee. The Liquidation Trustee may be removed by Bankruptcy Court order upon the motion of the Supervisory Board and a
showing of good cause; provided, however, that the proposed removal and replacement of Michael Goldberg as Liquidation Trustee will require a determination by the Bankruptcy Court that “cause” exists for such removal and replacement using the
standard under Bankruptcy Code section 1104 made after notice of such proposed removal and replacement has been provided to the SEC.
Interestholders will have only limited rights against the Liquidation Trustee and the Liquidation Trustee has limited liability to the Trust.
The Trust Agreement provides that the Liquidation Trustee and the Delaware Trustee (and their respective affiliates, directors, officers, employees and representatives) and any officer, employee or agent of the Trust or its affiliates will have no
liability to the Trust or the Interestholders except for acts or omissions of the Liquidation Trustee or the Delaware Trustee undertaken with the deliberate intent to injure the Interestholders or with reckless disregard for the best interests of the
Interestholders. Any liability of the Liquidation Trustee will be limited to actual, proximate and quantifiable damages. The Trust Agreement further provides that the Liquidation Trustee shall not incur any liability for any act or omission under the
Trust Agreement unless the Liquidating Trustee has acted with gross negligence, fraud, or willful misconduct. The Trust Agreement provides that the Interestholders have no voting rights (except in connection with certain amendments to the Trust
Agreement).
The Trust has limited control over the Wind-Down Entity. The business and affairs of the Wind-Down Entity are managed by its Board of
Managers. The Trust, as the sole member of the Wind-Down Entity, has only limited approval rights over decisions by the Board of Managers. Under the Wind-Down Entity LLC Agreement, the Trust may remove members of the Board of Managers only for Cause,
as defined in the Wind-Down Entity LLC Agreement. Furthermore, except in the case of three specified properties, the Trust has approved in advance any property sale by the Wind-Down Group provided that the purchase price for such property is at or
above the approved low-case price for such property in the Wind-Down Group’s current business plan. Only in the case of a sale of one or more of the three specified properties, or a sale of another property at a price less than its approved low-case
price, is the Wind-Down Entity required to obtain the Trust’s approval for the sale of a property. In the event of a dispute between the Trust and the Wind-Down Entity as to any matter that cannot be resolved between the Trust and the Wind-Down
Entity, the Wind-Down Entity LLC Agreement requires that the matter be resolved by the Bankruptcy Court.
Being a public company is expensive and administratively burdensome. The Trust is subject to the periodic reporting requirements of the
Exchange Act. The Trust’s status as a reporting company under the Exchange Act causes the Trust to incur additional legal, accounting and other expenses. The Trust expects these rules and regulations to increase its legal and financial compliance
costs and to make some activities more time-consuming and costly. The Trust also expects that these rules and regulations may make it more difficult and more expensive for the Trust to obtain director and officer liability insurance and that the
Trust may be required to accept reduced policy limits and coverage or incur substantially higher costs to obtain approximately the same or similar coverage. As a result, it may be more difficult for the Trust to attract and retain qualified
individuals to serve on the Supervisory Board.
Risks Relating to Taxes
If the Trust is not treated as a liquidating trust for federal tax purposes, there may be adverse tax consequences to the Trust and the
Interestholders. Pursuant to the Plan and the Trust Agreement, the Trust was organized with the intention that it conform to the requirements of a liquidating trust under applicable IRS rules. However, not all aspects of the formation of
the Trust are expressly addressed in such rules, and the requirements of such rules are not always specific. No legal opinions have been requested from counsel, and no rulings have been or will be requested from the IRS, as to the tax treatment of
the Trust. Accordingly, there can be no assurance that the IRS will not determine that the Liquidation Trust does not qualify as a liquidating trust. If the Trust does not qualify as a liquidating trust, there may be adverse federal income tax
consequences, including taxation of the income of the Trust at the entity level, which could reduce the amount of Trust cash available for distributions to Interestholders or result in tax assessments of Interestholders upon their receipt of
distributions.
As a liquidating trust, the Trust is subject to federal tax rules that limit its operations. To maintain its status as a liquidating trust,
the Trust will need to comply with IRS regulations and revenue procedures applicable to the operation of liquidating trusts. The Trust will be prohibited or restricted from, among other activities, engaging in the conduct of a trade or business,
unreasonably prolonging its liquidation activities, or allowing business activities to obscure the liquidating purpose of the Trust. Furthermore, the Trust will be subject to restrictions on its ability to retain net income or the net proceeds from
the sale of assets from year to year, to make investments, and to use Trust funds to continue the development of the Wind-Down Entity’s real estate assets. Due to the lack of specificity and indeterminate nature of the applicable requirements, there
can be no assurance that the Trust will be able to comply with the IRS rules. If the Trust fails to comply with such rules, the IRS may determine that the Trust’s status as a liquidating trust may be revoked. Revocation of such status may entail
adverse federal income tax consequences to the Trust and the Interestholders.
The Trust may be restricted under applicable federal tax rules from accepting all Fair Fund Recoveries and Forfeited Asset Recoveries. Under
applicable IRS rules, liquidating trusts are not permitted to receive or retain cash or cash equivalents in excess of a “reasonable” amount to meet claims and contingent liabilities (including disputed claims) or to maintain the value of the assets
during liquidation. It is unclear whether the approximately $5 million cash contributions to the Trust under the Plan, together with any future Fair Fund Recoveries or Forfeited Asset Recoveries, will be determined to be an amount in excess of such
limit.
An Interestholder’s tax liability could exceed distributions. If the Trust has income for a taxable year, the appropriate portion of that
income may be includable in an Interestholder’s taxable income, whether or not any cash is actually distributed to the Interestholder by the Trust. The Plan and the Trust Agreement permit the Trust to reserve certain amounts to fund, among other
things, operating and other expenses, and do not contain a mandatory tax distribution provision. Therefore, for any particular year, there may be no distribution or a distribution that is less than an Interestholder’s tax liability on its share of
the income of the Trust.
Purchasers of Liquidation Trust Interests may be required to make special calculations to determine tax gain or loss on the sale of Liquidation Trust
Interests. The Trust does not expect to maintain a separate basis account for any purchaser of a Liquidation Trust Interest in an open market transaction. However, to the extent the Trust is treated as a grantor trust, the purchaser may be
treated as though such purchaser purchased the Liquidation Trust Interest deemed to have been owned by the selling Interestholder. The new purchaser may receive a new tax basis in the acquired Liquidation Trust Interests equal to such purchaser’s
purchase price of the Liquidation Trust Interests. Upon the sale of assets by the Trust and its related entities, the basis of the Liquidation Trust Interest on the books and records of the Trust may be different than the new purchaser’s basis,
requiring the new purchaser to make special calculations to report the correct gain or loss for federal income tax purposes. Investors are urged to consult with their tax advisors regarding the acquisition, ownership and disposition of Liquidation
Trust Interests.
Expenses incurred by the Trust may not be deductible by Interestholders. Expenses incurred by the Trust generally will be deemed to have been
proportionately paid by each Interestholder. As such, these expenses may not be deductible or be subject to limitations on deductibility. Interestholders are urged to consult with their tax advisors regarding the acquisition, ownership and
disposition of Liquidation Trust Interests.
Before purchasing Liquidation Trust Interests, investors are urged to engage in careful tax planning with a tax professional. The federal
income tax treatment of the Liquidation Trust Interests is complex and may not be clear in all cases. For example, in the case of an investor who purchases Liquidation Trust Interests in more than one transaction at different times and for different
prices, and subsequently sells a portion of such Liquidation Trust Interests, there appears to be no clear guidance as to whether such purchaser can use average-cost basis in all of Liquidation Trust Interests or instead may claim a higher or lower
tax basis depending on the specific price of each lot. Additionally, the federal income tax treatment of the Liquidation Trust Interests may vary depending on the investor’s particular facts and circumstances. Investors other than individual citizens
or residents of the U.S., and certain other persons subject to special treatment under the Internal Revenue Code, should consider the impact of their status on the tax treatment of such an investment. Persons subject to such special treatment under
the Internal Revenue Code may include foreign companies, family trusts, 401(k) or individual retirement accounts, non-citizens of the U.S., tax-exempt organizations, real estate investment trusts, small business investment companies, regulated
investment companies, governmental entities, entities exercising governmental authority, banks and certain other financial institutions, broker-dealers, insurance companies, and persons that have a functional currency other than the U.S. dollar.
Risks Relating to Accounting, Financial Reporting and Information Management
The Company’s consolidated financial statements are prepared on the Liquidation Basis of Accounting, which requires the estimation of the future
value of assets and the amount of projected expenses. Estimates by management may be based, among other things, on projected construction and selling periods, real estate appraisals, cost forecasts by construction engineers, and the levels
of general and administrative expenses (such as payroll, insurance and rent). However, the actual realized value of the Company’s assets and the Company’s actual expenses are likely to differ from the estimated amounts reported in the Company’s
consolidated financial statements, and such differences may be material and possibly adverse.
The Wind-Down Entity’s real estate assets may not be liquidated at their recorded estimated net realizable value. The estimated net realizable
value is an estimate of the amount that the Wind-Down Entity expects to realize from the sale of the real estate assets. The actual sales price and closing and other costs may differ from the amounts included in the consolidated financial statements.
The estimated sales price and closing and other costs are estimated based on management’s analysis of current market conditions. The actual amounts realized will be based on negotiations between management and third-party buyers. The actual amounts
realized will likely be different than the amounts included in the consolidated financial statements and the differences could be material and possibly adverse.
The Wind-Down Entity’s general and administrative costs that are included in accrued liquidation costs may be different than the actual costs
incurred. The estimated general and administrative costs may be different than the actual costs as the amounts may be greater than the amount estimated and the length of time required to complete the liquidation process may be longer than
the time that was estimated. The actual amount of general and administrative costs will likely be different than the amounts included in the consolidated financial statements and the difference could be material.
The Company’s consolidated financial statements do not include any future recoveries from Causes of Action or any future Fair Funds Recoveries or
future Forfeited Asset Recoveries. The Company’s consolidated financial statements are prepared using the Liquidation Basis of Accounting, under which future cash flows are recorded only if the Company has the ability to reasonably estimate
them. Because the Company is unable to reasonably estimate the future recoveries, if any, from Causes of Action or any future Fair Funds Recoveries or future Forfeited Asset Recoveries, such items have not been recognized in the Company’s
consolidated financial statements. Therefore, the Company’s consolidated financial statements are not expected to provide prospective investors in the Liquidation Trust Interests with meaningful information regarding such future recoveries, the
amount of which may be material to the Company’s net assets in liquidation.
If the Trust is unable to maintain effective internal control over financial reporting in the future, the accuracy and timeliness of its financial
reporting may be adversely affected. If the Trust identifies one or more material weaknesses in the Trust’s internal control over financial reporting and such weakness remains uncorrected at fiscal year-end, the Trust may be required to
disclose that such internal control is ineffective at fiscal year-end. Were this to occur, the Trust could lose investor confidence in the accuracy and completeness of its financial reports, which could have a material adverse effect on the Trust’s
reputation and the value of the Liquidation Trust Interests.
Any decision on the part of the Company, as an “emerging growth company,” to choose reduced disclosures applicable to emerging growth companies could
make the Liquidation Trust Interests less attractive to investors. The Company is an “emerging growth company” as defined in the Securities Act and, for so long as it continues to be an emerging growth company, it may choose to take
advantage of certain exemptions from various reporting requirements applicable to other public companies including, but not limited to, the requirement that internal control over financial reporting be audited by the Company’s independent registered
public accounting firm pursuant to Section 404 of the Sarbanes-Oxley Act, reduced disclosure requirements regarding executive compensation and the extended transition period for complying with new or revised financial accounting standards. The
Company may take advantage of these provisions for up to five years or such earlier time that the Company is no longer an emerging growth company. No assurance can be given that this reduced reporting will not have an impact on the price of the Class
A Liquidation Trust Interests.
Information technology, data security breaches and other similar events could harm the Company. The Company relies on information technology
and other computer resources to perform operational activities as well as to maintain its business records and financial data. The Company’s computer systems are subject to damage or interruption from power outages, computer attacks by hackers,
viruses, catastrophes, hardware and software failures and breach of data security protocols by its personnel or third-party service providers. Although the Company has implemented administrative and technical controls and taken other actions to
minimize the risk of cyber incidents and otherwise protect its information technology, computer intrusion efforts are becoming increasingly sophisticated and even the controls that the Company has installed might be breached. Further, most of these
computer resources are provided to the Company or are maintained on behalf of the Company by third-party service providers pursuant to agreements that specify certain security and service level standards, but which ultimately are outside of the
Company’s control. Additionally, security breaches of the Company’s information technology systems could result in the misappropriation or unauthorized disclosure of proprietary, personal and confidential information which could result in significant
financial or reputational damages to the Company.
| Item 1B. |
Unresolved Staff Comments
|
None.
| Item 2. |
Properties
|
As of September 25, 2020, the Company’s principal properties are nine single-family homes. Seven of the single-family homes were under development and two were held for sale. The Company expects most
of the seven homes under development will be completed during the remainder of fiscal year ending June 30, 2021 and the remaining homes will be completed during fiscal year ending June 30, 2022. Although this construction schedule is based on
assumptions believed to be reasonable, residential real property construction is subject to many potential risks and delays, and no assurance can be given that the anticipated completion schedule will be realized.
The following is a summary of the most significant higher-value properties held by the Company as of September 25, 2020:
|
Address
|
City
|
Area
|
State
|
Zip
|
Sq. Ft.
|
Lot
Size
(Acres)
|
|||||||||
|
Development Properties3
|
|||||||||||||||
|
41 King Street
|
New York
|
Hudson Square
|
NY
|
10014
|
6,400
|
.30
|
|||||||||
|
2600 Hutton
|
Los Angeles
|
Beverly Hills
|
CA
|
90210
|
6,500
|
.73
|
|||||||||
|
10733 Stradella
|
Los Angeles
|
Bel Air
|
CA
|
90077
|
6,500
|
2.52
|
|||||||||
|
1520 Carla Ridge
|
Beverly Hills
|
Trousdale Estates
|
CA
|
90210
|
7,200
|
.42
|
|||||||||
|
1484 Carla Ridge
|
Beverly Hills
|
Trousdale Estates
|
CA
|
90210
|
10,000
|
.58
|
|||||||||
|
642 St. Cloud Road
|
Los Angeles
|
Bel Air
|
CA
|
90077
|
29,000
|
1.07
|
|||||||||
|
638 Siena Way
|
Los Angeles
|
Bel Air
|
CA
|
90077
|
17,400
|
.85
|
|||||||||
|
Available for Sale4
|
|||||||||||||||
|
1471 Forest Knoll Drive
|
Los Angeles
|
Hollywood Hills
|
CA
|
90069
|
11,000
|
.89
|
|||||||||
|
141 S. Carolwood Drive5
|
Los Angeles
|
Holmby Hills
|
CA
|
90024
|
12,200
|
9.51
|
|||||||||
| Item 3. |
Legal Proceedings
|
Below is a description of pending litigation. As the Company is the plaintiff in these legal proceedings and does not have the ability to estimate the ultimate recovery amount until they are settled,
and in accordance with the Company’s accounting policy, no recoveries have been recorded in the Company’s consolidated financial statements for these legal proceedings, other than for settlements for which the Trust has entered into a signed
settlement agreement.
Goldberg v. Halloran & Sage LLP, et al., Case No. 19STCV42900 (Cal. Super. Ct., L.A. Cnty., filed Dec. 2, 2019), is an action by the Trust
against nine law firms (Halloran & Sage LLP; Balcomb & Green, P.C.; Rome McGuigan, P.C.; Haight Brown & Bonesteel LLP; Bailey Cavalieri LLC; Sidley Austin LLP; Davis Graham & Stubbs LLP; Robinson & Cole LLP; and Finn Dixon &
Herling LLP) and ten individual attorneys (Richard Roberts, Lawrence R. Green, Jon H. Freis, Brian Courtney, Ted Handel, Thomas Geyer, Neal Sullivan, S. Lee Terry, Jr., Shant Chalian, and Reed Balmer) for conduct in connection with their
representation of Robert Shapiro, the Debtors or their affiliates before the commencement of the Bankruptcy Cases, as well as against up to 100 “Doe” defendants. The conduct challenged in the complaint includes knowingly and/or negligently preparing
loan documents and investment agreements with material misstatements and omissions, designing deceptive securities products, preparing incorrect legal opinion memoranda on which investors relied, and assisting in the creation of nominally third-party
borrower entities that were in fact controlled by Robert Shapiro.
3 All the properties identified on this table as development properties are being constructed as single-family homes except for the New York property, which is being constructed as a townhouse.
4 All of the properties identified on this table as available for sale are newly constructed single-family homes except for the Carolwood property, which is an existing single-family home.
5 Serves as collateral for the New LOC as described in “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations - Liquidity, Capital Resources and Uses of Liquidity - Capital Resources.”
The first set of counts in the complaint are against law firm Halloran & Sage LLP, attorney Richard Roberts, and the “Doe” defendants for aiding and abetting securities fraud (First Count),
aiding and abetting fraud (Second Count), aiding and abetting breach of fiduciary duty (Third Count), negligent misrepresentation (Fourth Count), professional negligence (Fifth Count), and aiding and abetting conversion (Sixth Count). These
defendants are alleged to be jointly and severally liable for rescission of investors’ purchases of securities and for damages in an amount believed to be in excess of $500 million, as well as for punitive damages.
The second set of counts in the complaint are against law firm Balcomb & Green, P.C., attorney Lawrence R. Green, and the “Doe” defendants for aiding and abetting securities fraud (Seventh
Count), aiding and abetting fraud (Eighth Count), aiding and abetting breach of fiduciary duty (Ninth Count), negligent misrepresentation (Tenth Count), professional negligence (Eleventh Count), and aiding and abetting conversion (Twelfth Count).
These defendants are alleged to be jointly and severally liable for rescission of investors’ purchases of securities and for damages in an amount believed to be in excess of $500 million, as well as for punitive damages.
The third set of counts in the complaint are against attorney Jon H. Freis and the “Doe” defendants for aiding and abetting securities fraud (Thirteenth Count), aiding and abetting fraud (Fourteenth
Count), aiding and abetting breach of fiduciary duty (Fifteenth Count), negligent misrepresentation (Sixteenth Count), professional negligence (Seventeenth Count), and aiding and abetting conversion (Eighteenth Count). These defendants are alleged to
be jointly and severally liable for rescission of investors’ purchases of securities and for damages in an amount believed to be in excess of $500 million, as well as for punitive damages.
The fourth set of counts in the complaint are against law firm Rome McGuigan, P.C., attorney Brian Courtney, and the “Doe” defendants for aiding and abetting securities fraud (Nineteenth Count),
aiding and abetting fraud (Twentieth Count), aiding and abetting breach of fiduciary duty (Twenty-First Count), negligent misrepresentation (Twenty-Second Count), professional negligence (Twenty-Third Count), and aiding and abetting conversion
(Twenty-Fourth Count). These defendants are alleged to be jointly and severally liable for rescission of investors’ purchases of securities and for damages in an amount believed to be in excess of $500 million, as well as for punitive damages.
The fifth set of counts in the complaint are against law firm Haight Brown & Bonesteel LLP, attorney Ted Handel, and the “Doe” defendants for aiding and abetting securities fraud (Twenty-Fifth
Count), aiding and abetting fraud (Twenty-Sixth Count), aiding and abetting breach of fiduciary duty (Twenty-Seventh Count), negligent misrepresentation (Twenty-Eighth Count), professional negligence (Twenty-Ninth Count), and aiding and abetting
conversion (Thirtieth Count). These defendants are alleged to be jointly and severally liable for rescission of investors’ purchases of securities and for damages in an amount believed to be in excess of $20 million, as well as for punitive damages.
The sixth set of counts in the complaint are against law firm Bailey Cavalieri LLC, Thomas Geyer, and the “Doe” defendants for aiding and abetting securities fraud (Thirty-First Count), aiding and
abetting fraud (Thirty-Second Count), aiding and abetting breach of fiduciary duty (Thirty-Third Count), negligent misrepresentation (Thirty-Fourth Count), professional negligence (Thirty-Fifth Count), and aiding and abetting conversion (Thirty-Sixth
Count). These defendants are alleged to be jointly and severally liable for rescission of investors’ purchases of securities and for damages in an amount believed to be in excess of $500 million, as well as for punitive damages.
The seventh set of counts in the complaint are against law firm Sidley Austin LLP, attorney Neal Sullivan, and the “Doe” defendants for aiding and abetting securities fraud (Thirty-Seventh Count),
aiding and abetting fraud (Thirty-Eighth Count), aiding and abetting breach of fiduciary duty (Thirty-Ninth Count), negligent misrepresentation (Fortieth Count), professional negligence (Forty-First Count), and aiding and abetting conversion
(Forty-Second Count). These defendants are alleged to be jointly and severally liable for rescission of investors’ purchases of securities and for damages in an amount believed to be in excess of $500 million, as well as for punitive damages.
The eighth set of counts in the complaint are against law firm Davis Graham & Stubbs LLP, attorney S. Lee Terry, Jr., and the “Doe” defendants for aiding and abetting securities fraud
(Forty-Third Count), aiding and abetting fraud (Forty-Fourth Count), aiding and abetting breach of fiduciary duty (Forty-Fifth Count), negligent misrepresentation (Forty-Sixth Count), professional negligence (Forty-Seventh Count), and aiding and
abetting conversion (Forty-Eighth Count). These defendants are alleged to be jointly and severally liable for rescission of investors’ purchases of securities and for damages in an amount believed to be in excess of $200 million, as well as for
punitive damages.
The ninth set of counts in the complaint are against law firm Robinson & Cole LLP, attorney Shant Chalian, and the “Doe” defendants for aiding and abetting securities fraud (Forty-Ninth Count),
aiding and abetting fraud (Fiftieth Count), aiding and abetting breach of fiduciary duty (Fifty-First Count), negligent misrepresentation (Fifty-Second Count), professional negligence (Fifty-Third Count), and aiding and abetting conversion
(Fifty-Fourth Count). These defendants are alleged to be jointly and severally liable for rescission of investors’ purchases of securities and for damages in an amount believed to be in excess of $5 million, as well as for punitive damages.
The tenth set of counts in the complaint are against law firm Finn Dixon & Herling LLP, attorney Reed Balmer, and the “Doe” defendants for aiding and abetting securities fraud (Fifty-Fifth
Count), aiding and abetting fraud (Fifty-Sixth Count), aiding and abetting breach of fiduciary duty (Fifty-Seventh Count), negligent misrepresentation (Fifty-Eighth Count), professional negligence (Fifty-Ninth Count), and aiding and abetting
conversion (Sixtieth Count). These defendants are alleged to be jointly and severally liable for rescission of investors’ purchases of securities and for damages in an amount believed to be in excess of $5 million, as well as for punitive damages.
The eleventh set of counts in the complaint are against law firms Halloran & Sage LLP; Balcomb & Green, P.C.; Rome McGuigan, P.C.; Haight Brown & Bonesteel LLP; Bailey Cavalieri LLC;
Sidley Austin LLP; Davis Graham & Stubbs LLP; Robinson & Cole LLP; and Finn Dixon & Herling LLP; attorney Jon H. Freis, and the “Doe” defendants for actual-intent fraudulent transfer (Sixty-First Count) and constructive fraudulent
transfer (Sixty-Second Count). These defendants are alleged to be liable for damages in an amount believed to be in excess of $5 million, as well as for provisional remedies, avoidance of the transfers, and punitive damages.
The case was designated as a complex matter on December 18, 2019, and was assigned to the Honorable Amy Hogue.
On March 20, 2020, two sets of defendants – Sidley Austin LLP and Neal Sullivan; and Davis Graham & Stubbs LLP and S. Lee Terry, Jr. – filed special motions to strike the portions of the
complaint directed at them under a California statute (Civil Procedure Code section 425.16) that permits defendants to bring early challenges to causes of action against them that allegedly arise from protected litigation activity if those causes of
action lack minimal merit. The defendants that filed these special motions to strike asserted that the claims against them arise from communicative conduct in the course of quasi-judicial proceedings, such as regulatory inquiries, and that the Trust
cannot establish a likelihood of prevailing on its claims against them. The Trust opposed these motions, and the matters were heard on July 28, 2020, and taken under submission on that date. On August 14, 2020, the Court entered orders: (i)
granting the motion to strike filed by Sidley Austin LLP and Neal Sullivan, and (ii) granting in part and denying in part the motion to strike filed by Davis Graham & Stubbs LLP and S. Lee Terry, Jr. In September 2020, the Trust filed notices of
appeal of the foregoing orders, and Davis Graham & Stubbs LLP and S. Lee Terry, Jr. subsequently filed a cross-appeal.
On April 13, 2020, four sets of defendants – Rome McGuigan, P.C. and Brian Courtney; Bailey Cavalieri LLC and Thomas Geyer; Robinson & Cole LLP and Shant Chalian; and Finn Dixon & Herling LLP
and Reed Balmer – filed motions to quash the service of summonses. The defendants that filed these motions asserted that they are not subject to suit in California because they do not have sufficient contacts with California to justify a California
court’s exercise of jurisdiction over them. The Trust opposed these motions, and the matters were heard in part on July 15, 2020 and in part on July 20, 2020, and (with exception of the motion filed by Finn Dixon & Herling LLP and Reed Balmer)
were taken under submission on July 20, 2020. The motion filed by Finn Dixon & Herling LLP and Reed Balmer was taken off calendar prior to July 20, 2020, and the parties thereafter reached a confidential settlement that is in the process of
being documented. On July 21, 2020, the Court entered orders granting the motions to quash filed by Rome McGuigan, P.C. and Brian Courtney; Bailey Cavalieri LLC and Thomas Geyer; and Robinson & Cole LLP and Shant Chalian. On September 10, 2020,
the Trust filed a notice of appeal of the foregoing orders.
On June 16, 2020, the Trust reached a confidential settlement with Balcomb & Green, P.C. and Lawrence R. Green. On July 6, 2020, these defendant filed a motion seeking the Court’s determination
that the settlement was made in good faith under a California statute (Civil Procedure Code section 877.6) that permits settling defendants to seek a good faith settlement finding in order to bar any other defendant from seeking contribution or
indemnity. The motion was unopposed, and the Court entered an order granting it on August 12, 2020.
Comerica Bank litigation. There are two pending actions against Comerica Bank, the institution at which the Debtors maintained all of their bank accounts,
alleging various causes of action:
(1) In re Woodbridge Investments Litigation, Case No. 2:18-cv-00103-DMG-MRW (C.D. Cal.), is a consolidated class action (Class Action) in the United States
District Court for the Central District of California (California District Court) brought on behalf of former Noteholders and Unitholders against Comerica Bank. It is comprised of five separate lawsuits filed between January 4, 2018 and April 26,
2018. The five lawsuits were consolidated, Lead Class Counsel was appointed, and Lead Class Counsel filed a Consolidated Class Action Complaint on September 19, 2019. The Consolidated Class Action Complaint asserted claims for aiding and abetting
fraud (Count 1), aiding and abetting breach of fiduciary duty (Count 2), negligence (Count 3), and violations of California’s unfair competition law (Count 4).
On November 1, 2019, Comerica moved to dismiss the Consolidated Class Action Complaint under Federal Rule of Civil Procedure 12(b)(6) (failure to state a claim upon which relief can be granted) and
Federal Rule of Civil Procedure 12(b)(1) (lack of subject matter jurisdiction). With respect to Count 1 (aiding and abetting fraud) and Count 2 (aiding and abetting breach of fiduciary duty), Comerica argued that the Class Plaintiffs’ allegations did
not demonstrate that Comerica had actual knowledge of the underlying fraud and breach of fiduciary duty that Comerica is alleged to have aided and abetted; with respect to Count 3 (negligence), Comerica argued that there is no duty of care owed to
non-customers of Comerica; and with respect to Count 4 (California Unfair Competition Law), Comerica argued that a claim for unfair competition fails when there is no actual knowledge of fraud or breach of fiduciary duty and no duty owed. In
addition, Comerica argued that all causes of action failed to state a claim for the additional reason that Comerica’s filing or non-filing of a Suspicious Activity Report (SAR) under federal law cannot support any of the causes of action, and that
the Court lacked subject matter jurisdiction because all of the causes of action belong to the Liquidation Trust such that the Class Plaintiffs lack standing to pursue them.
On August 5, 2020, the Court entered an order granting in part and denying in part Comerica’s motion to dismiss. The Court denied Comerica’s request to dismiss Counts 1 and 2 on the ground that the
allegations of the Consolidated Class Action Complaint sufficiently alleged that Comerica had the requisite knowledge of the underlying fraud and breach of fiduciary duty. The Court granted Comerica’s request to dismiss Count 3 on the ground that
the allegations of the Consolidated Class Action Complaint did not sufficiently allege a duty of care owed to non-customers of Comerica. On Count 4, the Court granted the motion to dismiss to the extent it relied on a failure to file a SAR (which
claim the Court found was preempted by federal law, which prohibits disclosure of a SAR), but denied the motion to dismiss to the extent the complaint relied on violations arising from non-SAR-related conduct, and the Court granted the class leave to
amend the complaint. The Court also denied Comerica’s request to dismiss based on Comerica’s allegations that the class lacked standing and that the Trust cannot be a member of a class, finding instead that the class has plausibly alleged standing
to sue, and that the question of whether the Trust can be a class member did not need to be answered at this stage.
On August 26, 2020, the putative class filed a First Amended Consolidated Class Action Complaint, which asserted claims for aiding and abetting fraud (Count 1), aiding and abetting breach of
fiduciary duty (Count 2), and violations of California’s unfair competition law (Count 3). Comerica’s response to the First Amended Consolidated Class Action Complaint has not yet been filed.
The Trustee asserts that he is a member of the putative class and Comerica disputes that assertion.
(2) Goldberg vs. Comerica Bank, Adv. Pro. No. 20-ap-50452-BLS (Bankr. D. Del., originally filed Apr. 26, 2019 in California and transferred on February 5,
2020 to Delaware), is an action by the Trust against Comerica Bank alleging fraudulent transfer liability under the California Civil Code. The Trust’s complaint also incorporates the claims asserted against Comerica Bank in the class action
(referenced in paragraph (1) above) to the extent that such claims are ultimately determined to belong to the Trust rather than to individual former Noteholders and Unitholders.
On June 28, 2019, Comerica filed three motions: (i) a motion to transfer venue to the Bankruptcy Court; (ii) alternatively, a motion to
dismiss the action for failure to state a claim; and (iii) a motion to strike the portion of the Complaint that incorporates the class action claims. Comerica argued that venue should be transferred to the Bankruptcy Court on the grounds that, inter alia, that court is familiar with the facts underlying the litigation and is best positioned to adjudicate it. In the alternative, in the event that the court declines to transfer venue, Comerica argued that
the Complaint should be dismissed on the grounds that, among other grounds, (i) the Trust’s claims are barred by the doctrine of in pari delicto, and (ii) the transfers that the Trust seeks to recover are not
avoidable as a matter of law because the payment of a secured banking obligation cannot be the subject of a fraudulent transfer claim.
On July 22, 2019, the Trust filed its omnibus opposition to the three Comerica motions. On February 5, 2020, the court entered an order granting Comerica’s motion to transfer the case to the
Bankruptcy Court in Delaware, and denying the remaining two motions (to dismiss and to strike) as moot in light of the transfer, without prejudice to renewal by Comerica in the Bankruptcy Court. On February 6, 2020, the Bankruptcy Court opened the
above-referenced docket number for the transferred case. On March 23, 2020, the Trust and Comerica filed a stipulation, which was approved by the Bankruptcy Court, agreeing to stay the action pending disposition of the motion to dismiss the class
action (referenced in paragraph (1) above). On September 3, 2020, the Trust and Comerica filed a stipulation, which was also approved by the Bankruptcy Court, agreeing to further stay the action until thirty days after the California District Court
enters a scheduling order in the Class Action. Within thirty days after the entry of such a scheduling order, the parties will confer and submit a joint proposed scheduling order, or (if they cannot agree) will make a joint submission with each
party’s competing proposal as to any areas of disagreement for the Bankruptcy Court’s consideration.
Avoidance actions. The Trust is currently prosecuting numerous legal actions to recover preferential payments, fraudulent transfers, and
other funds subject to recovery by the bankruptcy estate. These actions were filed in the United States Bankruptcy Court for the District of Delaware, are pending before the Honorable Brendan L. Shannon, and generally fall into the following
categories:
| • |
Preferential transfers. Certain of the actions include claims arising under chapter 5 of the Bankruptcy Code, and seek to avoid or recover payments made by the Debtors during
the 90 days prior to the December 4, 2017 bankruptcy filing, including payments to miscellaneous vendors and former Noteholders and Unitholders.
|
| • |
Fraudulent transfers (Interest to Noteholders and Unitholders). Certain of the actions include claims arising under chapter 5 of the Bankruptcy Code, and seek to avoid or
recover payments made by the Debtors during the course of the Ponzi scheme (from July 2012 through the December 4, 2017 bankruptcy filing) for interest paid to former Noteholders and Unitholders.
|
| • |
Fraudulent transfers (Shapiro personal expenses). Certain of the actions include claims arising under chapter 5 of the Bankruptcy Code, and seek to avoid and recover payments
made by the Debtors during the course of the Ponzi scheme (from July 2012 through the December 4, 2017 bankruptcy filing) for the personal expenses of Robert and Jeri Shapiro, including those identified in a forensic report prepared in
connection with an SEC enforcement action in the United States District Court for the Southern District of Florida.
|
The Trust has filed approximately 490 legal actions of this nature, many of which have been resolved, resulting in recoveries by or judgments in favor of the Trust. As of September 25, 2020,
approximately 288 of these legal actions were pending, 116 of which are in default status and for each of which the Trust is seeking a default judgment. Since inception and as of September 25, 2020, the Trust has obtained judgments of approximately
$5.91 million and has entered into settlements in over 200 legal actions and with respect to another over 150 potential avoidance claims for which litigation was not filed, resulting in an aggregate of approximately $11.94 million of cash payments
made or due to the Trust and approximately $8.45 million in reductions of claims against the Trust.
In addition, other legal proceedings are being prosecuted by the Trust and United States governmental authorities, which actions may result in recoveries in favor of the Trust. Such actions currently
include:
| • |
Fraudulent transfers and fraud (against former agents). These actions, which arise under chapter 5 of the Bankruptcy Code and applicable state law governing fraudulent
transfers, seek to avoid and recover payments made by the Debtors during the course of the Ponzi scheme (from July 2012 through the December 4, 2017 bankruptcy filing) for commissions to former agents, as well as for fraud, aiding and
abetting fraud, and the unlicensed sale of securities asserted by the Trust based on claims contributed to the Trust by defrauded investors. These actions were filed by the Trust in the United States Bankruptcy Court for the District of
Delaware between November 15, 2019 and December 4, 2019. Actions of this type are also being pursued by the SEC, and it is the Trust’s understanding that any recoveries obtained by the SEC will be transmitted to the Trust pursuant to a “Fair
Fund” established by the SEC.
|
| • |
Actions regarding the Shapiro’s personal assets. On December 4, 2019, the Trust filed an action in the United States Bankruptcy Court for the District of Delaware, Adv. Pro. No. 10-51076 (BLS),
Woodbridge Liquidation Trust v. Robert Shapiro, Jeri Shapiro, 3X a Charm, LLC, Carbondale Basalt Owners, LLC, Davana Sherman Oaks Owners, LLC, In Trend Staging, LLC, Midland Loop Enterprises, LLC, Schwartz
Media Buying Company, LLC and Stover Real Estate Partners LLC. In this action, the Trust asserts claims under chapter 5 of the Bankruptcy Code and applicable state law for avoidance of preferential and fraudulent transfers together
with claims for fraud, aiding and abetting fraud, the unlicensed sale of securities, breach of fiduciary duty and unjust enrichment. The Trust seeks to recover damages and assets held in the names of Robert Shapiro, Jeri Shapiro and their
family members and entities owned or controlled by them, which assets the Trust contends are beneficially owned by the Debtors or for which the Debtors are entitled to recover based on the Shapiros’ defalcations, including over $20 million in
avoidable transfers.
|
| • |
Criminal Proceeding and Forfeiture. In connection with the United States’ criminal case against Robert Shapiro (Case No. No. 19-20178-CR-ALTONAGA (S.D. Fla. 2019)), Shapiro agreed to the
forfeiture of certain assets. The Trust filed a petition in the Florida court to claim the forfeited assets as property of the Debtors’ estates, and therefore as property that had vested in the Trust pursuant to the Plan. The Trust has
agreed to the terms and form of an agreement with the United States Department of Justice to resolve its claim. The agreement was approved by the Bankruptcy Court on September 17, 2020. The agreement remains subject to approval by the United
States District Court. Among other things, the agreement provides for the release of specified forfeited assets by the United States to the Trust, and for the Trust to liquidate those assets and distribute the net sale proceeds to Qualifying
Victims, which include the vast majority of Trust beneficiaries—specifically, all former holders of Class 3 and 5 claims and their permitted assigns—but do not include former holders of Class 4 claims.
|
Wind-Down Group Litigation. The Wind-Down Group owns a portfolio of real estate assets, which includes secured loans and other properties. As
part of its recovery efforts, the Wind-Down Group, through its subsidiaries, is involved in ordinary routine litigation incidental to such assets.
| Item 4. |
Mine Safety Disclosures
|
Not applicable.
Part II
|
Item 5.
|
Market Information
The Trust has two classes of common equity: Class A Liquidation Trust Interests and Class B Liquidation Trust Interests. Neither class is listed on any national securities exchange.
Class A Liquidation Trust Interests are traded on the over-the-counter market (OTC Link® ATS) under the trading symbol WBQNL. Over-the-counter quotations
reflect inter-dealer prices, without retail mark-up, mark-down or commission and may not necessarily represent actual transactions. As of September 25, 2020, there were approximately 7,108 holders of record of the Class A Liquidation Trust
Interests.
Since issuance, Class B Liquidation Trust Interests have not been transferable except by operation of law or by will or the laws of descent and distribution. Accordingly, there has not been any
established public trading market for the Class B Liquidation Trust Interests or any available price quotations. As of September 25, 2020, there were approximately 1,185 holders of record of the Class B Liquidation Trust Interests.
Dividends and Distributions
Liquidation Trust Interests represent a right to receive a pro rata portion of distributions by the Trust pursuant to the terms of the Plan and the Trust Agreement. Since the Plan Effective Date,
the Liquidation Trustee has authorized four cash distributions to the holders of Class A Liquidation Trust Interests. See “Item 1. Business – A. Overview” of this Annual Report. The Liquidation Trustee will continue to assess the adequacy of funds
held and expects to make one or more additional distributions of excess Trust assets to Interestholders, but does not currently know the timing or amount of any such distributions(s). Additional cash distributions will be subject to, among other
things, the establishment of reasonable reserves for contingent liabilities and future costs and expenses. Pursuant to the Plan and the Trust Agreement, all distributions are net of any costs and expenses incurred by the Trust in connection with
administering, litigating or otherwise resolving the various Causes of Action of the Trust and operating the Trust. Amounts withheld and not distributed may also include fees and expenses of the Liquidation Trustee, premiums for directors and
officers insurance, and other insurance and fees and expenses of attorneys and consultants.
Distributions will be made only from assets of the Trust and only to the extent that the Trust has sufficient assets (in excess of reserves for contingent liabilities and future costs and expenses,
among other things) to make such payments in accordance with the Plan and the Trust Agreement. No distribution is required to be made to any Interestholder unless such Interestholder is to receive in such distribution at least $10.00 or unless such
distribution is the final distribution to such Interestholder pursuant to the Plan and the Trust Agreement. Distributions will be made at the sole discretion of the Liquidation Trustee in accordance with the provisions of the Plan and the Trust
Agreement.
Sales of unregistered securities
In accordance with the Plan, all Liquidation Trust Interests have been issued without registration under the Securities Act. The Liquidation Trust Interests have been issued only to holders of
allowed claims in Class 3, Class 4, and Class 5 entirely in exchange for such claims. See “Item 1. Business - D. Plan Provisions Regarding the Company - 2. Treatment under the Plan of holders of claims
against and equity interests in the Debtors” of this Annual Report. As of September 25, 2020, the Trust has issued an aggregate of 11,519,450 Class A Liquidation Trust Interests and an aggregate of 676,312 Class B Liquidation Trust Interests. All
Liquidation Trust Interests were issued on the Plan Effective Date or from time to time thereafter as soon as practicable as and when claims in Class 3, Class 4 or Class 5 have become allowed.
During the three months ended June 30, 2020, the Trust issued the following Liquidation Trust Interests:
|
Date of Sale
|
Number of
Class A
Interests Sold
|
Number of
Class B
Interests Sold
|
Nature of the
Transaction
|
Consideration
Received
|
||||||
|
May 1, 2020
|
2,806.29
|
-
|
Allowance of claims
|
Allowance of claims
|
||||||
|
June 12, 2020
|
895.44
|
-
|
Settlement of claims
|
Settlement of claims
|
||||||
|
Total
|
3,701.73
|
-
|
||||||||
The issuance of Liquidation Trust Interests without registration under the Securities Act has occurred in reliance upon the exemption from such registration afforded by Section 1145(a)(1) of the
Bankruptcy Code. Section 1145(a)(1) exempts the offer and sale of securities under a plan of reorganization from registration under the Securities Act and state securities laws and regulation if (i) the securities are offered and sold under a plan of
reorganization and are securities of the debtor, of an affiliate of the debtor participating in a joint plan with the debtor, or of a successor to the debtor under the plan; (ii) the recipients of the securities hold a pre-petition or administrative
claim against the debtor or an interest in the debtor; and (iii) the securities are issued entirely in exchange for the recipient’s claim against or interest in the debtor, or principally in such exchange and partly for cash or property. The Trust
believes that the Liquidation Trust Interests are securities of a “successor” to the Debtors within the meaning of Section 1145(a)(1), and such securities were issued under the Plan entirely in exchange for allowed claims in Class 3, Class 4, and
Class 5.
| Item 6. |
Selected Financial Data
|
Not applicable.
| Item 7. |
The following discussion of changes in net assets and net assets in liquidation should be read in conjunction with “Item 8. Financial Statements and Supplementary Data” of Part II of this Annual
Report, and other financial information appearing elsewhere in this Annual Report. This discussion contains “forward-looking statements” within the meaning of the Securities Act and the Exchange Act. All such forward-looking statements are based upon
the Trust’s current expectations and involve risks and uncertainties which may cause actual results to differ materially from those expressed or implied by the forward-looking statements. See “Cautionary Note About Forward-Looking Statements”
included at the beginning of this Annual Report for a description of these risks and uncertainties. The Trust, the Remaining Debtors, the Wind-Down Entity and the Wind-Down Subsidiaries are collectively referred to in this discussion as “the
Company.”
Overview
Pursuant to the Plan, the Trust was formed on February 15, 2019 to hold, either directly or indirectly through the Wind-Down Group, the assets and equity interests formerly owned by the Debtors. Each
of the real properties formerly owned by the Debtors was transferred, on the effective date of the Plan, to one of the Wind-Down Subsidiaries. The purpose of the Wind-Down Group is to develop (as applicable), market, and sell those properties to
generate cash. Assets formerly owned by the Debtors other than real estate assets and certain cash were transferred, on the effective date of the Plan, to the Trust. The purpose of the Trust is to receive remittances of cash from the Wind-Down
Entity, to resolve disputed claims, to prosecute the Causes of Action, to pay allowed Unimpaired Claims and, subject to the payment of Trust expenses and the retention of various reserves, to make distributions of cash to Interestholders in
accordance with the Plan.
The Trust operates pursuant to the Plan and the Trust Agreement. The Trust was formed as a Delaware statutory trust and is administered by the Liquidation Trustee. The Wind-Down Entity, a
wholly-owned subsidiary of the Trust operates pursuant to the Plan and the Wind-Down Entity LLC Agreement. The Wind-Down Entity was formed as a Delaware limited liability company and is administered by its Board of Managers, one of which is the Chief
Executive Officer.
As of September 25, 2020, and June 30, 2020, the number of Liquidation Trust Interests outstanding in each series is as follows:
|
Number Outstanding as of
|
||||||||
|
September 25, 2020
|
June 30, 2020
|
|||||||
|
Class A Liquidation Trust Interests
|
11,519,450
|
11,518,232
|
||||||
|
Class B Liquidation Trust Interests
|
676,312
|
675,558
|
||||||
For each of the classes of Liquidation Trust Interests, the number of Liquidation Trust Interests outstanding will increase to the extent that disputed claims become allowed claims.
Since the Plan Effective Date through June 30, 2020, the Wind-Down Group has disposed of approximately 118 properties for aggregate net sale proceeds of approximately $281.36 million. In addition,
the Wind-Down Entity will no longer be pursuing recoveries related to 13 secured loans due to lack of market interest. During the period July 1, 2020 through September 25, 2020, the Company sold four single-family homes and four other properties and
realized proceeds of approximately $33.43 million. There can be no assurance that the amount of net sales proceeds that the Company will receive in the future will be consistent with the amount received during the period February 15, 2019 (inception)
through September 25, 2020. The Company expects to complete the liquidation of its assets during the fiscal year ending June 30, 2023.
Year ended June 30, 2020
The following is a summary of the Consolidated Statement of Changes in Net Assets in Liquidation for the year ended June 30, 2020:
Consolidated Statement of Changes in Net Assets in Liquidation
For the year ended June 30, 2020
($ in thousands)
|
Net assets in liquidation, as of June 30, 2019
|
$
|
329,971
|
||
|
Change in assets and liabilities:
|
||||
|
Change in carrying value of assets and liabilities, net
|
11,334
|
|||
|
Distributions declared, net
|
(76,788
|
)
|
||
|
Net change in assets and liabilities
|
(65,454
|
)
|
||
|
Net assets in liquidation, as of June 30, 2020
|
$
|
264,517
|
Net assets in liquidation decreased approximately $65.45 million during the year ended June 30, 2020. This decrease was due to changes in carrying value of assets and liabilities, net of $11.33
million and distributions declared, net of approximately $76.79 million (distributions declared of $78.43 million, less distributions reversed of $1.64 million for disallowed claims). The components of the changes in carrying value of assets and
liabilities, net are as follows ($ in thousands):
|
Settlement recoveries recognized, net
|
$
|
5,061
|
||
|
Sales proceeds in excess of carrying value
|
19,964
|
|||
|
Remeasurement of assets and liabilities, net
|
(16,970
|
)
|
||
|
Reduction of state, local and other taxes
|
2,890
|
|||
|
Other
|
389
|
|||
|
Change in carrying value of assets and liabilities, net
|
$
|
11,334
|
During the year ended June 30, 2020, the Company:
| • |
Declared distributions of $4.50 and $2.12 per Class A Liquidation Trust Interest, which totaled approximately $53.43 million and approximately $25.00 million, respectively.
|
| • |
Completed construction of four single-family homes (25210 Jim Bridger, 1241 Loma Vista, 24055 Hidden Ridge, 1471 Forest Knoll). The 1241 Loma Vista and 24055 Hidden Ridge single-family homes were sold during the year ended June 30, 2020.
The 25210 Jim Bridger single-family home was sold in August 2020.
|
| • |
Sold twelve single-family homes, 33 lots, settled three secured loans and sold two other properties for net proceeds of approximately $201.33 million.
|
| • |
Adopted a strategy to auction certain secured loans and other properties. As a result of this change in strategy, the net carrying value of was reduced by approximately $2.53 million. As a result of the lack of interest during the auction
process, the Wind-Down Entity will no longer be pursuing recoveries related to 13 secured loans that had a total carrying value of approximately $0.57 million.
|
| • |
Paid construction costs of approximately $45.21 million relating to the single-family homes under development.
|
| • |
Paid holding costs of approximately $9.22 million.
|
| • |
Signed agreements to settle Causes of Action of approximately $5.32 million.
|
| • |
Paid general and administrative costs of approximately $24.47 million, including approximately $14.45 million professional fees, approximately $4.46 of payroll and related costs and approximately $1.08 million of board member fees and
expenses.
|
| • |
Paid professional fees incurred before the Plan Effective Date of approximately $.50 million.
|
| • |
Recorded additional accrued liquidation costs, of approximately $7.90 million, net, consisting primarily of additional estimated holding and general and administrative costs as a result of the extension of the estimated timing for the
completion of the Wind Down Entity’s operations. These additional costs are partially a result of the COVID-19 pandemic.
|
Period from February 15, 2019 (inception) through June 30, 2019
Contribution to the Company
Net assets recorded by the Company as of the Plan Effective Date of February 15, 2019 were comprised of the following ($ in thousands):
|
Assets
|
||||
|
Real estate assets held for sale:
|
||||
|
Single-family homes under development
|
$
|
361,000
|
||
|
Real estate assets available for sale:
|
||||
|
Single-family homes
|
186,119
|
|||
|
Lots
|
45,910
|
|||
|
Secured loans
|
9,707
|
|||
|
Other properties
|
15,392
|
|||
|
Subtotal
|
257,128
|
|||
|
Real estate assets held for sale
|
618,128
|
|||
|
Closing and other costs
|
(35,418
|
)
|
||
|
Real estate assets held for sale, net
|
582,710
|
|||
|
Cash
|
36,020
|
|||
|
Restricted cash
|
317
|
|||
|
Other assets
|
2,297
|
|||
|
Total assets
|
$
|
621,344
|
||
|
Liabilities
|
||||
|
Accounts payable and accrued expenses
|
$
|
5,785
|
||
|
Accrued liquidation costs
|
232,067
|
|||
|
Total liabilities
|
$
|
237,852
|
||
|
Net Assets in Liquidation
|
$
|
383,492
|
||
The following is a summary of the Consolidated Statement of Changes in Net Assets in Liquidation for the period from February 15, 2019 (inception) through June 30, 2019:
Consolidated Statement of Changes in Net Assets in Liquidation
For the period from February 15, 2019 (inception) through June 30, 2019
(In Thousands)
|
Net assets contributed on February 15, 2019
|
$
|
383,492
|
||
|
Change in assets and liabilities:
|
||||
|
Changes in carrying value of assets and liabilities
|
(8,835
|
)
|
||
|
Distributions declared
|
(44,686
|
)
|
||
|
Net change in assets and liabilities
|
(53,521
|
)
|
||
|
Net assets in liquidation, as of June 30, 2019
|
$
|
329,971
|
Net assets in liquidation decreased approximately $53.52 million during the period from February 15, 2019 (inception) through June 30, 2019. This decrease was due to changes in carrying value of
assets and liabilities, net of $8.83 million and distributions declared of approximately $44.69 million (distributions declared of $44.70 million, less distributions reversed of $.01 million for disallowed claims). The components of the changes in
carrying value of assets and liabilities, net are as follows ($ in millions):
|
Revaluation of real estate
|
$
|
(21.60
|
)
|
|
|
Decrease in construction costs accrued
|
12.32
|
|||
|
Other
|
.45
|
|||
|
$
|
(8.83
|
)
|
The majority of the revaluation of real estate and all of the decrease in construction costs are a result of a change in strategy for one real estate asset.
During the period from February 15, 2019 (inception) through June 30, 2019, the Company:
| • |
Declared a distribution of $3.75 per Class A Liquidation Trust Interest, which totaled approximately $44.70 million.
|
| • |
Completed construction of two single-family homes (1966 Carla Ridge and 25211 Jim Bridger). These homes were listed for sale as of June 30, 2019.
|
| • |
Paid construction costs of approximately $22.48 million relating to the single-family homes under development.
|
| • |
Sold five single-family homes, 58 lots, settled two secured loans and sold three other properties for net proceeds of approximately $80.30 million.
|
| • |
Signed agreements to settle Causes of Action of approximately $1.66 million.
|
| • |
Received Fair Funds Recoveries from the SEC of approximately $1.24 million.
|
| • |
Paid holding and financing costs of approximately $3.50 million.
|
| • |
Paid general and administrative costs of approximately $6.99 million, including approximately $.49 million of board member fees and expenses and approximately $3.58 million of post Plan Effective Date professional fees.
|
| • |
Paid professional fees incurred before the Plan Effective Date of approximately $5.43 million.
|
| • |
Recorded additional accrued liquidation costs, of approximately $3.17 million (net), consisting primarily of the CEO’s bonus accrual and additional state taxes for periods before the Plan Effective Date.
|
Liquidity, Capital Resources and Uses of Liquidity
Liquidity
The Company’s only sources for meeting its capital requirements are its cash and cash equivalents, its revolving line of credit availability, proceeds from the sale of its real estate assets and
recoveries on Causes of Action. The Company’s primary uses of funds are and will continue to be for development costs, holding costs and general and administrative costs, all of which the Company expects to be able to adequately fund over the next 12
months from its primary sources of capital.
Capital Resources
In addition to consolidated cash and cash equivalents at June 30, 2020 of approximately $91.43 million (of which approximately $5.36 million is restricted), the capital resources available to the
Company are as follows:
| • |
Revolving Line of Credit: The Company’s revolving line of credit matured on May 1, 2020. On June 19, 2020, two wholly-owned subsidiaries of the Wind-Down Entity entered into a $25,000,000 revolving line of credit (New LOC). The
New LOC may be increased to up to $30,000,000 with the pledge of one or more additional properties and lender approval. The New LOC matures on June 19, 2022 but may be extended for one additional year thereafter. The New LOC requires the
borrowers to establish an interest reserve of $1,750,000, which is to be used to pay the potential monthly interest payments. Outstanding borrowings bear interest at a fixed rate of 3.50% per annum. Indebtedness under the New LOC is secured
by a deed of trust on one property, the personal property associated therewith and the interest reserve. The Wind-Down Entity is the guarantor of the New LOC. The Company is required to keep $20,000,000 on deposit with the lender in order to
avoid a non-compliance fee of 2% of the shortfall in the required deposit, and are required to comply with various covenants. As of June 30, 2020, no amounts were outstanding under the New LOC.
|
| • |
Sales of Real Estate: The Wind-Down Group is in the process of developing, marketing and selling its real estate assets, all of which are held for sale, with the exception of the eight single family homes which were under
development as of June 30, 2020. There can be no assurance as to the amount of net proceeds that the Company will receive from the sale of its real estate assets or when the net sales proceeds will be received. The net proceeds from the sales
of real estate for the year ended June 30, 2020 may not be indicative of future net proceeds, which may be significantly lower. In addition, it may take longer to sell the properties than the Company has estimated.
|
| • |
Recoveries: During the year ended June 30, 2020, the Company recognized approximately $5.32 million from the settlement of Causes of Action. There can be no assurance that the amounts the Company recovers from settling Causes of
Action, from Fair Funds Recoveries and Forfeited Asset Recoveries in the future will be consistent with the amount recovered during the year ended June 30, 2020.
|
Uses of Liquidity
The primary uses of the Company’s liquidity are to pay (a) development costs, (b) holding costs, and (c) general and administrative costs. As of June 30, 2020, the Company’s total liabilities were
approximately $120.43 million. The estimated costs recorded as of June 30, 2020 may not be indicative of the costs paid in future periods, which may be significantly higher.
Given current cash balances, projected sales, availability under the line of credit, Causes of Action recoveries, and expected cash needs, the Company does not expect a deficiency in liquidity in
the next 12 months. Due to the uncertain nature of future net sales proceeds, recoveries and costs to be incurred, it is not possible to be certain that the current liquidity will be adequate to cover all future financial needs of the Company.
Creating contingent obligation agreements and/or seeking methods to reduce professional costs, including legal fees, and administrative costs are strategies that could be undertaken to address liquidity issues should they arise. These strategies
could impact the Company’s ability to maximize recoveries from the settlement of Causes of Action.
Distributions
Distributions will be made at the sole discretion of the Liquidation Trustee in accordance with the provisions of the Plan and the Trust Agreement. As of September 25, 2020, the Liquidation Trustee
has declared four distributions to the Class A Interestholders. The distributions are paid on account of the then-allowed claims and a deposit is made into a restricted cash account on account of (a) Class A Interests that are issued as claims are
resolved, (b) claims that are recently resolved, (c) uncashed distribution checks, (d) distributions that were withheld due to pending avoidance actions and (e) distributions where the Trust is waiting for further beneficiary information.
The following tables summarize the distributions declared, distributions paid and the activity in the restricted cash account for the periods from February 15, 2019 (inception) through June 30,
2020 and from February 15, 2019 through September 25, 2020:
|
During the Period from
February 15, 2019 (inception) through
June 30, 2020 ($ in Millions)
|
During the Period from
February 15, 2019 (inception) through
September 25, 2020 ($ in Millions)
|
|||||||||||||||||||||||||||||
| Date Declared |
$ per
Class A Interest
|
Total Declared
|
Paid
|
Restricted Cash Account
|
Total Declared
|
Paid
|
Restricted Cash Account
|
|||||||||||||||||||||||
|
Distributions Declared
|
||||||||||||||||||||||||||||||
|
First
|
3/15/2019
|
$
|
3.75
|
$
|
44.70
|
$
|
42.32
|
$
|
2.38
|
$
|
44.70
|
$
|
42.32
|
2.38
|
||||||||||||||||
|
Second
|
1/2/2020
|
4.50
|
53.43
|
51.19
|
2.24
|
53.43
|
51.19
|
2.24
|
||||||||||||||||||||||
|
Third
|
3/31/2020
|
2.12
|
25.00
|
24.19
|
0.81
|
25.00
|
24.19
|
0.81
|
||||||||||||||||||||||
|
Fourth
|
7/13/2020
|
2.56
|
-
|
- |
-
|
29.93
|
29.20
|
0.73
|
||||||||||||||||||||||
|
Subtotal
|
$
|
12.93
|
$
|
123.13
|
$
|
117.70
|
$
|
5.43
|
$
|
153.06
|
$
|
146.90
|
$
|
6.16
|
||||||||||||||||
|
Distributions Reversed
|
||||||||||||||||||||||||||||||
|
(a)
|
Disallowed
|
(1.65
|
)
|
(1.75
|
)
|
|||||||||||||||||||||||||
|
(b)
|
Returned
|
0.15
|
0.27
|
|||||||||||||||||||||||||||
|
Subtotal
|
(1.50
|
)
|
(1.48
|
)
|
||||||||||||||||||||||||||
|
(c)
|
Distributions Paid from Reserve Account
|
(1.56
|
)
|
(1.58
|
)
|
|||||||||||||||||||||||||
|
Distributions Payable, Net
|
as of 6/30/2020:
|
$
|
2.37
|
as of 9/25/2020:
|
$
|
3.10
|
||||||||||||||||||||||||
| (a) |
As a result of claims being disallowed.
|
| (b) |
Distribution checks returned or not cashed.
|
| (c) |
Paid as claims are allowed or resolved.
|
The Liquidation Trustee will continue to assess the adequacy of funds held and expects to make one or more additional distributions of excess Trust assets to Interestholders, but does not currently
know the timing or amount of any such distribution(s).
Contractual Obligations
As of June 30, 2020, the Company has contractual commitments related to construction contracts totaling approximately $37.73 million. The Company expects to complete the construction of these
single-family homes during the fiscal year ending June 30, 2022. The Company has an office lease that expires in August 2021. The Company expects that it will lease office space until the liquidation process is completed.
Off-Balance Sheet Arrangements
As of June 30, 2020, the Company did not have off-balance sheet arrangements, other than those disclosed under contractual obligations, that have or are reasonably likely to have a material effect on
its consolidated financial statements, liquidity or capital resources.
Quantitative Disclosures about Market Risk
As of June 30, 2020, the Company does not have any market risk exposure as defined by Securities and Exchange Commission Regulation 229.305. If the Company were to borrow under its line of credit, it
would be exposed to the impact of interest rate changes on the line of credit.
Inflation
Until the Company completes liquidation of its assets, the Company may be exposed to inflation risks relating to increases in the costs of construction and other accrued liquidation costs.
Critical Accounting Policies and Practices
The Company’s consolidated financial statements are prepared in accordance with US GAAP. The accounting policies and practices that the Company believes are the most critical are discussed below.
These accounting policies and practices require management to make decisions on subjective and/or complex matters that may inherently be uncertain.
| • |
Liquidation Basis of Accounting: Under Liquidation Basis of Accounting, all assets are recorded at their estimated net realizable value or liquidation value, which represents the estimated amount of net cash that will be received
upon the disposition of the assets (on an undiscounted basis). Liabilities are measured in accordance with US GAAP that otherwise applies to those liabilities. The Company has not recorded any amount from the future settlement of Causes of
Action, Fair Funds or Forfeited Asset Recoveries in the accompanying consolidated financial statements because they cannot be reasonably estimated.
|
| • |
Valuation of Real Estate: The measurement of real estate assets held for sale is based on current contracts (if any), estimates and other indications of sales value, net of estimated selling costs. To determine the value of real
estate assets held for sale, the Company considered the three traditional approaches to value (cost, income and sales comparison) commonly used by the real estate appraisal community. The applicability and relevancy of each valuation approach
as applied may differ by asset. In most cases, the sales comparison approach was accorded the greatest weight. This approach compares a property to other properties with similar characteristics that have recently sold. To validate
management’s estimate, the Company also considers opinions from qualified real estate professionals and local real estate brokers and, in some cases, obtained third party appraisals.
|
| • |
Accrued Liquidation Costs: The estimated costs associated with implementing and completing the Company’s plan of liquidation are recorded as accrued liquidation costs. The Company has also recorded the estimated development costs
to be incurred to prepare the assets for sale as well as the estimated holding costs to be incurred until the projected sale date and the estimated general and administrative costs to be incurred until the completion of the liquidation of the
Company.
|
| • |
Changes in Carrying Value: On a quarterly basis, the Company reviews the net realizable values and liquidation costs and record any significant variances. The Company will also revalue an asset when it is under contract for sale
and the buyer’s contingencies have been removed. During the period that this occurs, the carrying value of the asset and the estimated closing and other costs will be adjusted, if necessary. If the Company has a change in its plan for the
disposition of an asset, the carrying value will be adjusted to reflect this change in the period that the change is approved. The change in value may include a change to the accrued liquidation costs related to the asset.
|
Estimates are required to prepare the consolidated financial statements in conformity with US GAAP. Significant estimates, judgments and assumptions are required in a number of areas, including, but
not limited to, the sales price of real estate assets, selling costs, development costs, holding costs and general and administrative costs to be incurred until the completion of the liquidation of the Company. In many instances changes in the
accounting estimates are likely to occur from period to period. Actual results may differ from the estimates. The Company believes that the current assumptions and other considerations used in the consolidated financial statements are appropriate.
However, if actual experience differs from the assumptions and other considerations used in estimating amounts reflected in the Company’s consolidated financial statements, the resulting changes could have a material adverse effect on the Company’s
net assets in liquidation.
All changes in the estimated liquidation value of the Company’s assets, real estate assets held for sale and other assets, and liabilities are reflected as a change to the Company’s net assets in
liquidation.
| Item 7A. |
Not applicable.
The information required by this Item is incorporated by reference to the consolidated financial statements set forth in Item 15 of Part IV of this Annual Report, “Exhibits and Financial Statement Schedules”.
| Item 9. |
On July 19, 2019, the Trust engaged Squar Milner LLP as its first independent registered public accounting firm. Prior to such engagement, the Company did not consult with Squar Milner LLP regarding
either the application of accounting principles to any specified transaction or the type of audit opinion that might be rendered on the Company’s financial statements. Thus, Squar Milner LLP did not provide any written reports or oral advice to the
Company regarding such matters. There have been no disagreements between Squar Milner LLP and the Company.
| Item 9A. |
This annual report does not include a report of management’s assessment regarding internal control over financial reporting or an attestation report of the Company’s registered public accounting firm
due to the transition period established by rules of the Securities and Exchange Commission for newly public companies.
| Item 9B. |
None.
| Item 10. |
The Liquidation Trustee
The Trust does not have directors or executive officers. All of the management and executive authority over the Trust resides in the Liquidation Trustee, subject to the supervision of the
Supervisory Board.
Michael I. Goldberg, Esq., the Liquidation Trustee, age 56, has served as the Liquidation Trustee since inception of the Trust on February 15, 2019. Prior
to that time, Mr. Goldberg served as a member of the Debtors’ independent Board of Managers, and had been the SEC’s designee to that Board. Mr. Goldberg was unanimously selected to be the Liquidation Trustee by the Unsecured Creditors’ Committee,
the Noteholder Committee, and the Unitholder Committee in the Debtors’ Bankruptcy Cases. Mr. Goldberg has been a partner in the law firm of Akerman LLP since 1997, where he is chair of the Fraud & Recovery Practice Group, a comprehensive fraud
management team focusing on Ponzi schemes, receiverships, and EB-5 fraud. Mr. Goldberg has managed some of the largest Ponzi scheme liquidation recoveries in United States history and routinely testifies as a qualified expert witness on Ponzi
schemes in federal and state court cases. Mr. Goldberg currently is the Receiver for Jay Peak and Q Resort, Inc., the owners and operators of a ski resort in northern Vermont. For over 25 years, Mr. Goldberg has practiced law in the area of fraud
and recovery and bankruptcy and reorganizations, regularly serving as a court-appointed fiduciary in unwinding Ponzi schemes. Mr. Goldberg holds Bachelor of Arts and Juris Doctor degrees from Boston University and a Master of Business
Administration from New York University. He is admitted to practice law in state and federal courts in Florida and New York.
The Liquidation Trustee serves for the duration of the Trust, subject to earlier death, resignation or removal. The Liquidation Trustee may resign at any time by giving the Interestholders and the
Supervisory Board at least sixty (60) days written notice of his or her intention to do so. A Liquidation Trustee may be removed and replaced by an order of the Bankruptcy Court upon the motion of the Supervisory Board and a showing of good cause,
except that any proposed removal and replacement of Michael Goldberg as Liquidation Trustee will require a determination by the Bankruptcy Court that “cause” exists for such removal and replacement using the standard under Bankruptcy Code section
1104 made after notice of such proposed removal and replacement has been provided to the SEC. Under Bankruptcy Code section 1104, “cause” includes fraud, dishonesty, incompetence, or gross mismanagement of the affairs of the Trust.
The Supervisory Board of the Trust
The Liquidation Trustee is subject to the supervision, to the extent provided in the Plan, of the Supervisory Board. The Supervisory Board consists of six members, five of whom have served as
members of the Supervisory Board since inception and one of whom was elected on August 21, 2019. Except as otherwise indicated below, during the past five years none of the following named individuals has served or held a position with any company
that is a parent, subsidiary or other affiliate of the Trust.
Jay Beynon, age 73, has been a member of the Supervisory Board since inception of the Trust and was appointed to such office in accordance with the Plan and
Trust Agreement. Beginning in February 2018 and continuing until February 15, 2019, Mr. Beynon served as a member of the Ad Hoc Noteholder Group in the Bankruptcy Cases. Mr. Beynon is a real estate investor and, prior to his retirement in 2011, was
a businessman with over 26 years’ experience, including as founder and chief executive officer of The Beynon Company, a graphic design agency, and the founder of Hot Rod Speed Works, the designer and fabricator of custom automobiles.
Raymond C. Blackburn, M.D., age 71, has been a member of the Supervisory Board since inception of the Trust and was appointed to such office in accordance
with the Plan and Trust Agreement. Beginning in January 2018 and continuing until February 15, 2019, Dr. Blackburn served as a member of the Ad Hoc Unitholder Committee in the Bankruptcy Cases. Dr. Blackburn is a licensed physician in Texas and
holds a Bachelor of Arts in Chemistry from Oakwood University and a Doctor of Medicine from Loma Linda University School of Medicine. Dr. Blackburn specialized and practiced dermatology in Dallas, Texas for nearly 38 years. Retired since August
2016, Dr. Blackburn maintains an active medical license in Texas. He is a retired member of the Dallas County Medical Society, the Texas State Medical Society and the American Academy of Dermatology.
Terry R. Goebel, age 67, has been a member of the Supervisory Board since inception of the Trust and was appointed to such office in accordance with the
Plan and Trust Agreement. Mr. Goebel currently serves as Chair of the Supervisory Board. Beginning in December 2017 and continuing until February 15, 2019, Mr. Goebel served as a member of the Unsecured Creditors’ Committee in the Bankruptcy Cases,
having been appointed to such position by the U.S. Trustee’s Office. Mr. Goebel is the President and a principal owner of G3 Group LA, a California-licensed general contractor specializing in the development of high-end, luxury residences. Mr.
Goebel’s responsibilities at G3 Group LA include oversight of field operations.
Lynn Myrick, age 76, has been a member of the Supervisory Board since inception of the Trust and was appointed to such office in accordance with the Plan
and Trust Agreement. Ms. Myrick was appointed to the Unsecured Creditors’ Committee in the Bankruptcy Cases on April 3, 2018 by the U.S. Trustee’s Office, succeeding to her husband Ron Myrick’s position after his death, and continued to serve on
that committee until February 15, 2019. Retired since 2013, Ms. Myrick worked as an elementary school teacher and has experience in charitable fund-raising for the Boston Ballet and the Southwest Florida Symphony Society. Ms. Myrick holds an
Associate of the Arts in Interior Design and a Bachelor of Science from the University of Louisville.
John J. O’Neill, age 77, has been a member of the Supervisory Board since inception of the Trust and was appointed to such office in accordance with the
Plan and Trust Agreement. Beginning in December 2017 and continuing until February 15, 2019, Mr. O’Neill served as a member of the Unsecured Creditors’ Committee in the Bankruptcy Cases, having been appointed to such position by the U.S. Trustee’s
Office. Retired since 2014, Mr. O’Neill is a former account executive at Merrill Lynch and the former president of an independently owned beverage distributor. Mr. O’Neill holds a Bachelor of Arts in Business Administration from Dickinson State
University.
M. Freddie Reiss, age 73, has been a member of the Supervisory Board since August 21, 2019, at which time he was appointed to such office by the Supervisory
Board. Mr. Reiss is the sole member of the Audit Committee of the Supervisory Board. Additionally, Mr. Reiss has been a member of the Board of Managers since its inception and was appointed to such office under the Plan. Prior to that time, Mr.
Reiss served as a member of the Debtors’ Board of Managers during the Bankruptcy Cases. Mr. Reiss is the former Senior Managing Director of the Corporate Finance/Restructuring Practice at FTI Consulting, an independent global business advisory
firm, a position from which he retired in 2013. Mr. Reiss has been an independent director of Eva Automation Inc. (March 2020 to current), a privately held theatre exhibition company (August 2020 to current), and Blackrock TCP Tennenbaum Capital
Corp. (August 2016 to current). Mr. Reiss’s prior positions during the previous five years, each of which has since concluded, include the following: (i) independent director of JH Capital Group (August 2018 to April 2019); (ii) independent
director of Fallas Paredes, a brand name and private label clothing retailer (October 2018 to January 2019); (iii) special advisor of Shipston Automotive Engineering Limited, an automotive company (May 2018 to July 2018); (iv) independent director
of Classic Party Rentals, a special event rental company (March 2017 to August 2017); (v) independent director of Ares Dynamic Credit Allocation Fund Inc., a public investment company (March 2016 to November 2016); (vi) managing member of Variant
Holding Company LLC (September 2014 to November 2016); (vii) independent director and chair of the audit committee of Contech Engineered Solutions (February 2011 to November 2016); (viii) independent director and chair of the audit committee of
ATLS Acquisitions LLC/Liberty Medical Group (June 2013 to August 2015); and (ix) independent director of Tennenbaum Capital Partners, LLC – Special Value Opportunities Fund (December 2012 to June 2015). Mr. Reiss has over thirty years’ experience
in strategic planning, cash management, liquidation analysis, covenant negotiations, forensic accounting and valuation. He specializes in advising on bankruptcies, reorganizations, business restructurings and providing expert witness testimony in
respect of underperforming companies. Mr. Reiss is a certified insolvency and restructuring advisor, a certified public accountant in New York and California and a certified turnaround professional. He has been inducted into the American College of
Bankruptcy and the Turnaround Management Association’s Hall of Fame. Mr. Reiss is a member of the American Institute of Certified Public Accountants and has completed the Director Education and Certification Program and the John E. Anderson School
of Management of the University of California at Los Angeles. He holds a B.B.A. from City College of New York’s Bernard Baruch School of Business and a Master’s of Business Administration from City University of New York’s Baruch College.
Management of the Wind-Down Group
Frederick Chin, age 60, has been the Chief Executive Officer and a member of the Board of Managers since its inception and was appointed to such offices
pursuant to the Plan. Mr. Chin also serves as Chief Executive Officer of each of the Wind-Down Subsidiaries. Mr. Chin served as the Chief Executive Officer of the Debtors from his appointment to that position on January 29, 2018 until the Plan
Effective Date. Over the past 40 years, Mr. Chin has been engaged full time in providing real estate valuation, consulting, advisory, research, due diligence, financial structuring, ownership, restructuring, and operational turnaround services. Mr.
Chin has served in executive roles as Chief Executive Officer, Chief Operating Officer, and Chief Restructuring Officer of public and private real estate companies involved in homebuilding, land development, and commercial office portfolios in
Southern California and Nevada. Mr. Chin was a partner at Ernst & Young LLP from 1995 until 2004 and was a principal with Kenneth Leventhal and Company from 1993 until 1995. Mr. Chin has testified as a real estate expert in deposition or trial
on over 50 occasions in federal and state courts throughout the United States. During the past five years, Mr. Chin has served as a member of the board of managers of TR Holdings, Inc., a privately held company and the owner of a ski resort in
Idaho (March 2014 to March 2017), and of 1155 Island Avenue, LLC, a privately held company and the owner of a commercial office building in Southern California (December 2014 to December 2018). Mr. Chin is a member of the Appraisal Institute and
was awarded the MAI Designation in 1987. Mr. Chin is also a Certified Insolvency and Restructuring Advisor of the Association of Insolvency and Restructuring Advisors, and holds the CRE designation from the Counselors of Real Estate. Mr. Chin holds
a B.S. in Finance and Real Estate from the University of Arizona.
The Chief Executive Officer of the Wind-Down Entity is subject to the supervision of a Board of Managers. In addition to Mr. Chin, the following individuals are members of the Board of Managers:
Richard Nevins, age 73, has been a member of the Board of Managers since its inception and was appointed to such office under the Plan. Prior to that time,
Mr. Nevins served as a member of the Debtors’ Board of Managers during the Bankruptcy Cases. An independent financial advisor, Mr. Nevins has been a director of Cadiz, Inc., a publicly-held natural resources company, since July 2016 and Ravn Air
Group Inc., an aviation company undergoing a restructuring (March 2020 to current). During the past five years, Mr. Nevins has been a director of Saratoga Resources, Inc., a publicly-held oil exploration and production company (May 2014 to October
2016), and several privately-owned companies, including Travel Management Company Intermediate Holdings, LLC (March 2019 to May 2019), a light aircraft charter services provider, and Harvey Gulf International Marine, an offshore oil service company
(October 2017 to July 2018). Mr. Nevins has over thirty years’ experience in investment banking and financial advisory services, including as former Managing Director of Jefferies & Company, Inc., Smith Barney, and Drexel Burnham Lambert, and
holds a Master’s of Business Administration from Stanford University—Graduate School of Business and a Bachelor of Arts in Economics from University of California, Riverside.
M. Freddie Reiss, age 73, has been a member of the Board of Managers since its inception and was appointed to such office under the Plan. See “Item 10.
Directors and Executive Officers” of this Annual Report under the caption “The Supervisory Board of the Trust”).
In addition to Mr. Chin, the following individuals are executive officers of the Wind-Down Group:
Marion W. Fong, age 56, has been the Chief Financial Officer of the Wind-Down Entity since February 2019. Ms. Fong serves in the same capacity for the
Wind-Down Subsidiaries. Ms. Fong is the founder and principal of Mariposa Real Estate Advisors, LLC (January 2001 to present), which provides real estate financial consulting services to public and private real estate companies, institutional
investors, developers, operators and lenders. Ms. Fong has over 30 years’ experience in the real estate industry, including knowledge of many aspects of real estate development, acquisitions, dispositions, transaction structuring, work-outs and
restructuring and capital access. Ms. Fong was a partner in the Real Estate Advisory Service Group of Ernst & Young LLP and was a Senior Manager at Kenneth Leventhal & Company. Ms. Fong was admitted to the Counselors of Real Estate in 2000,
and earned her Bachelor of Arts in Economics from Occidental College.
David Mark Kemper II, age 42, has been the Chief Operating Officer and Chief Investment Officer of the Wind-Down Entity since February 2019. Mr. Kemper
serves in the same capacity for the Wind-Down Subsidiaries. Prior to such appointment, Mr. Kemper served as financial advisor at Province, Inc., a nationally recognized financial advisory firm focusing on growth opportunities, restructurings and
fiduciary-related services (March 2017 to February 2019), where he represented unsecured creditors in corporate bankruptcies and provided management and restructuring services to various companies. During the past five years, Mr. Kemper also has
served as managing director of LandCap Advisors, a company engaged in providing real estate consulting services (October 2013 to March 2017), where Mr. Kemper provided clients with real estate management and restructuring, lease advisory, valuation
and feasibility, transaction advisory, portfolio, and project management services. Mr. Kemper has over 20 years’ experience in financial advisory, real estate and accounting services. Mr. Kemper holds a B.A. in Accounting from St. Mary’s
University.
| Item 11. |
Summary Compensation Table
|
Name and Principal Position at
June 30, 2020(1)
|
Fiscal
Year
|
Base
|
Bonus
|
All Other
Compensation (4)
|
Total
|
||||||||||||
|
Michael I. Goldberg, Esq.,
|
2020
|
$
|
479,456
|
$
|
251,593
|
(5)
|
$
|
0
|
$
|
731,049
|
|||||||
|
Liquidation Trustee
|
2019
|
$ |
193,554
|
(2) |
$ |
81,873 | (5) |
$ |
0 | $ | 275,427 | ||||||
|
Frederick Chin,
|
2020
|
$
|
787,397
|
|
$
|
637,500
|
(3)
|
$
|
0
|
$
|
1,424,897
|
||||||
|
Wind-Down Entity CEO
|
2019 | $ |
280,220
|
(2) | $ | - | (3) | $ | 0 | $ | 280,220 | ||||||
|
Marion W. Fong,
|
2020
|
$
|
472,438
|
$
|
100,000
|
(3)
|
$
|
0
|
$
|
572,438
|
|||||||
|
Wind-Down Entity CFO
|
2019 | $ |
168,132
|
(2) | $ |
-
|
(3) | $ | 0 |
$ |
168,132
|
||||||
|
David Mark Kemper II,
|
2020
|
$
|
367,452
|
|
$
|
70,000
|
(3)
|
$
|
0
|
$
|
437,452
|
||||||
|
Wind-Down Entity COO and CIO
|
2019
|
$ |
130,769
|
(2) | $ | - | (3) | $ | 0 |
$ |
130,769
|
||||||
| (1) |
Includes all individuals who may be considered the executive officers of the Trust or the Wind-Down Entity. Each of such individuals has occupied his or her respective current position since February 15, 2019.
|
| (2) |
For 2019, amount indicated is for the period from February 15, 2019 through June 30, 2019 based on annual salaries of $750,000, $450,000 and $350,000 per year for Mr. Chin, Ms. Fong and Mr. Kemper, respectively, in each case subject to
annual increase in the discretion of the Board of Managers. For Mr. Goldberg, amount is based on time incurred during the period from February 15, 2019 through June 30, 2019.
|
| (3) |
Bonuses are attributed to the fiscal year in which they are earned. No bonuses were earned for fiscal year 2019. Mr. Chin, Ms. Fong and Mr. Kemper each is eligible for bonuses, as discussed below.
|
| (4) |
In addition to salary and bonus, the named executive officers (other than Mr. Goldberg) may receive other annual compensation in the form of health, dental, vision and life insurance coverages, paid vacation, paid time off, and other
personal benefits. For fiscal years 2019 and 2020, the total value of such perquisites and personal benefits did not exceed $10,000 in the aggregate for any named executive officer.
|
| (5) |
Mr. Goldberg is eligible for incentive compensation equal to 5% of total gross settlement amounts by the Trust from the pursuit of Causes of Action as further discussed below. Bonus amounts are attributed to the fiscal year in which
they are settled. During fiscal year ended June 30, 2020 and the period from February 15, 2019 (inception) through June 30, 2019, $214,377 and $0, respectively, were paid.
|
Liquidation Trustee of the Trust
As compensation in respect of service as Liquidation Trustee, Mr. Goldberg is entitled to (i) base compensation at an hourly rate of $598.95 per hour for calendar year 2020 and $544.50 per hour for
calendar year 2019 (these rates are net of a negotiated 10% discount of Mr. Goldberg’s customary rates) and (ii) incentive compensation equal to 5% of total gross amounts recovered by the Trust from the pursuit of Causes of Action. Mr. Goldberg is
not entitled to equity compensation of Mr. Goldberg’s customary rates, perquisites or personal benefits.
Mr. Goldberg’s base compensation was not determined by the Supervisory Board, but instead was established by, and the amount is fixed under, the Trust Agreement. Such base compensation cannot be
modified except by amendment of the Trust Agreement. Amendment of the Trust Agreement effecting a modification of the compensation of the Supervisory Board would require either (a) an order of the Bankruptcy Court or (b) a written amendment signed
by the Liquidation Trustee, which amendment has received the prior written approval of a majority of the members of the Supervisory Board. It is the understanding of the Supervisory Board that the base compensation is intended to compensate Mr.
Goldberg for his time spent performing services as Liquidation Trustee. The Supervisory Board believes that base compensation at an hourly rate is standard and customary for bankruptcy and insolvency trustees, and that $605.00 does not exceed Mr.
Goldberg’s customary hourly rate for legal services performed by him as a partner of Akerman LLP.
Mr. Goldberg’s incentive compensation has been determined by the Supervisory Board, in the exercise of its discretion as authorized by the Trust Agreement, as five percent (5%) of the total gross
proceeds recovered by the Trust from the pursuit of Causes of Action by the Trust. Such incentive compensation is intended to compensate Mr. Goldberg for services performed above and beyond the time commitment required of the Liquidation Trustee.
The Supervisory Board believes that incentive compensation based on the value of recoveries on Causes of Action is standard and customary for bankruptcy and insolvency trustees, and is designed to maximize the value of recoveries on Causes of
Action and appropriately align the economic interests of the Liquidation Trustee with those of the Trust.
Payment of compensation to the Liquidation Trustee or his professionals in connection with any individual request for compensation is subject to the following procedures, specified in the Trust
Agreement:
| • |
the Liquidation Trustee must submit to the Supervisory Board an itemized statement or statements reflecting all fees and itemized costs to be reimbursed;
|
| • |
after seven (7) days after the delivery of the statements, the amount reflected in the statements may be paid by the Trust unless, prior to the expiration of such seven-day period, the Supervisory Board has objected in writing to any
compensation reflected in the Statement; and
|
| • |
in the case of any Supervisory Board objection to payment, the undisputed amounts may be paid and the disputed amounts may only be paid by agreement of the Supervisory Board, or pursuant to order of the Bankruptcy Court, which retains
jurisdiction over all disputes regarding the Liquidation Trustee’s and his or her professionals’ compensation.
|
Chief Executive Officer of the Wind-Down Entity
The Wind-Down Entity and its Chief Executive Officer Frederick Chin are parties to an employment agreement, the terms of which were amended in September 2020. The employment agreement features an
initial period expiring on August 14, 2021, subject to two additional consecutive renewals of one fiscal quarter each if the wind down of the Wind-Down Group remains to be completed. Under the employment agreement, Mr. Chin is entitled to an annual
base salary and incentive compensation. Mr. Chin’s current annual base salary is $825,000, subject to annual increase not to exceed 10% of the prior year’s annual base salary based on a merit review by the Board of Managers.
Mr. Chin is eligible for certain potential bonuses based on the cumulative amount of distributions of cash made by the Wind-Down Entity to the Trust during certain specified periods as set forth in
the table below. For each period, a threshold amount of distributions must be made during such period for any bonus to be earned. Any bonuses earned are to be paid within 30 days of the end of the applicable period, however, Mr. Chin will not be
entitled to any bonus regardless of the cumulative amount of distributions in any period if Mr. Chin is terminated by the Wind-Down Entity for “Cause” or if Mr. Chin voluntarily resigns other than for “Good Reason” before (i) February 15, 2022 with
respect to a category A bonus or (ii) within 30 days of the end of the applicable period with respect to a category B bonus, in each case as identified in the chart below. For purposes of determining the amount of cumulative distributions during
the period for a category B bonus, cash amounts collected by the Wind-Down Group but not distributed to the Trust during any such period may be counted in cumulative distributions for such period so long as the Board of Managers of the Wind-Down
Entity certifies that such cash will be distributed to the Trust in a subsequent period.
|
Bonus
Category |
Period
|
Threshold
Amount |
Cumulative
Amount Distributions During Period |
Bonus
Payment Amount for Period |
|
|
A
|
February 15, 2019 through the earlier to occur of the expiration of the term of Mr. Chin’s employment agreement and the completion of the liquidation process for the Wind-Down Entity
|
$351,093,000
|
$351,093,000 to $401,442,999
|
$1,125,000
|
|
|
$401,443,000 to $528,584,999
|
$1,500,000
|
||||
|
$528,585,000 or over
|
$1,875,000
|
|
Bonus
Category |
Period
|
Threshold
Amount |
Cumulative
Amount Distributions During Period |
Bonus
Payment Amount for Period |
|
|
B
|
February 15, 2019 through December 31, 2019
|
$97,332,000
|
$97,332,000 to $106,504,999
|
$487,500
|
|
|
$106,505,000 to $125,454,999
|
$637,500
|
||||
|
$125,455,000 or more
|
$862,500
|
||||
|
February 15, 2019 through December 31, 2020
|
$178,677,000
|
$178,677,000 to $206,372,999
|
$487,500
|
||
|
$206,373,000 to $262,744,999
|
$637,500
|
||||
|
$262,745,000 or more
|
$862,500
|
||||
|
February 15, 2019 through the expiration of the term of Mr. Chin’s employment agreement
|
$351,093,000
|
$351,093,000 to $401,442,999
|
$487,500
|
||
|
$401,443,000 to $528,584,999
|
$637,500
|
||||
|
$528,585,000 or more
|
$862,500
|
Mr. Chin’s employment agreement was amended in September 2020 to extend the initial term of his employment from August 14, 2021 to February 14, 2022 and to provide that if Mr. Chin is employed by
the Wind-Down Entity on December 31, 2021, Mr. Chin is eligible for a discretionary bonus for calendar year 2021. These changes were approved by the Board of Managers and the Supervisory Board. Such changes were considered necessary and
appropriate in light of the currently projected extended duration of the Wind-Down Entity’s liquidation activities.
If Mr. Chin’s employment is terminated by the Wind-Down Entity without “Cause,” or if Mr. Chin resigns for “Good Reason,” Mr. Chin will be entitled, in addition to accrued salary and earned but
unpaid bonuses, to a continued base salary for the remainder of the term of the Employment Agreement plus payments of the bonus amounts as set forth in the chart above to which Mr. Chin would have been entitled if he had remained employed during
the entire term of the employment agreement (such bonus amounts to be paid if and when otherwise due under the employment agreement). If Mr. Chin’s employment is terminated by his death or disability, Mr. Chin or his estate will be entitled to
receive, in addition to accrued salary and earned but unpaid bonuses, payments of the bonus amounts set forth in the chart above to which Mr. Chin would have been entitled if he had remained employed during the entire term of the employment
agreement (such bonus amounts to be paid if and when otherwise due under the employment agreement), prorated on the basis of the distributions actually made prior to the effective date of termination for the period(s) applicable to the bonus
determination.
The Wind-Down Entity is obligated, under the employment agreement, the Wind-Down Entity LLC Agreement and an Indemnification Agreement with Mr. Chin dated February 27, 2019, to indemnify and hold
harmless Mr. Chin from and against certain liabilities, losses, damages and expenses incurred by him by reason of his acts or omissions as an officer of the Wind-Down Entity.
Under the employment agreement, Mr. Chin is entitled to four weeks of paid vacation each year and Mr. Chin and his eligible dependents are entitled to participate in the Wind-Down Entity’s health,
dental, vision and life insurance coverages.
Other Executive Officers of Wind-Down Entity
The Wind-Down Entity is a party to at-will employment agreements with its Chief Financial Officer Marion W. Fong and its Chief Operating Officer and Chief Investment Officer David Mark Kemper II.
Unless sooner terminated, the terms of these employment agreements expire upon the dissolution of the Wind-Down Entity. Under their employment agreements, Ms. Fong and Mr. Kemper are entitled to an annual base salary and incentive compensation.
Ms. Fong’s current annual base salary is $495,000 and Mr. Kemper’s annual base salary is $385,000, in each case subject to annual increase at the discretion of the Board of Managers. Ms. Fong and
Mr. Kemper earned an incentive compensation bonus for calendar year 2019, and are eligible for up to three discretionary bonuses as described below, a one-time wind-down bonus, and a one-time retention bonus.
Ms. Fong and Mr. Kemper earned bonuses of $100,000 and $70,000, respectively for calendar year 2019. The bonuses were paid in January, 2020 (fiscal year 2020).
Ms. Fong and Mr. Kemper each is entitled to consideration for discretionary bonuses for calendar years 2020 and 2021 and, if the Wind-Down Entity dissolves after January 1, 2022, for the period
from January 1, 2022 to the date of such dissolution. Each such officer is entitled to be considered for a discretionary bonus for calendar years 2020 and 2021 in an amount up to 25% of such officer’s then-current base salary, provided that such
officer is still employed by the Wind-Down Entity on December 31, 2020 and December 31, 2021, respectively. If the Wind-Down Entity dissolves after January 1, 2022, each such officer is entitled to be considered for a discretionary bonus for the
period from January 1, 2022 to the date of the dissolution in an amount up to 25% of such officer’s 2022 base salary, provided that such officer is still employed by the Wind-Down Entity upon its dissolution.
Ms. Fong and Mr. Kemper each is eligible to earn a wind-down bonus in an amount of either 50%, 100% or 150% of such officer’s then-current base salary (less any discretionary bonuses paid),
depending on whether the Wind-Down Entity achieves the low, base or high case, respectively, of the projected cumulative amount of distributions by the Wind-Down Entity to the Trust from February 15, 2019 (inception) to the date of the dissolution
of the Wind-Down Entity. No wind-down bonus is payable if the amount of such distributions is less than the low case. If earned, the wind-down bonus is payable within 30 days after the dissolution of the Wind-Down Entity, provided that the officer
has not been terminated for “Cause” and has not voluntarily resigned other than for “Good Reason” before such dissolution.
Neither Ms. Fong nor Mr. Kemper is entitled to severance benefits. In lieu of such benefits, each of them is eligible to earn, at the time of his or her termination of employment, a retention bonus
in an amount equal to six months of such officer’s base salary at the time of such termination. The retention bonus is payable only if (a) such officer resigns for “Good Reason,” (b) such officer’s employment term expires, or (c) such officer is
terminated without “Cause.”
The Wind-Down Entity is obligated, under the employment agreements with Ms. Fong and Mr. Kemper, the Wind-Down Entity LLC Agreement and indemnification agreements with each such officer, to
indemnify and hold harmless each such officer from and against certain liabilities, losses, damages and expenses incurred by either of them by reason of acts or omissions as an officer of the Wind-Down Entity.
Under their employment agreements, Ms. Fong and Mr. Kemper are entitled to four weeks of annual paid vacation, as well as participation in the Wind-Down Entity’s health, dental, vision and life
insurance coverages.
Ms. Fong’s and Mr. Kemper’s employment agreements were amended in September 2020 to provide for their eligibility for the discretionary bonus for 2021 and, if the Wind-Down Entity dissolves after
January 1, 2022, for period from January 1, 2022 to the date of dissolution. Any such discretionary bonuses will be deducted from any wind-down bonus earned by Ms. Fong and Mr. Kemper. These changes were approved by the Board of Managers and the
Supervisory Board. Such changes were considered necessary and appropriate in light of the currently projected extended duration of the Wind-Down Entity’s liquidation activities.
Compensation Committee Interlocks and Insider Participation
Neither the Trust nor the Wind-Down Entity has a compensation committee or other board committee performing equivalent functions. During the fiscal year ended June 30, 2020, all members of the
Supervisory Board participated in deliberations regarding Mr. Goldberg’s and Mr. Chin’s compensation, without participation by any other officer and employee of the Trust or the Wind-Down Entity. During the fiscal year ended June 30, 2020, all
members of the Board of Managers, and Mr. Goldberg, participated in deliberations concerning compensation of the executive officers of the Wind-Down Entity.
Compensation of Supervisory Board and Board of Managers
Each member of the Supervisory Board that does not serve on the Audit Committee receives, as compensation in respect of service on the Supervisory Board, (i) $10,000 per month through January 31,
2020, (ii) $7,500 per month from February 1, 2020 through January 31, 2021, (iii) $5,000 per month from February 1, 2021 through January 31, 2022, and (iv) $2,500 per month for each calendar month thereafter until termination of the Trust in
accordance with the Plan (prorated as appropriate if a member commences his or her service other than on the first day of a month or terminates his or her service other than on the last day of a month). The sole member of the Supervisory Board
that serves on the Audit Committee receives, as compensation in respect of service, $10,000 per month. All Supervisory Board members also are entitled to reimbursement by the Trust of all actual, reasonable and documented out-of-pocket expenses
incurred in connection with their service on the Supervisory Board.
The compensation of the Supervisory Board was not determined by the Supervisory Board, but instead was established by, and is fixed under, the Trust Agreement and cannot be modified except by
amendment of the Trust Agreement. An amendment of the Trust Agreement effecting a modification in the compensation of the Supervisory Board would require either (a) an order of the Bankruptcy Court or (b) a written amendment signed by the
Liquidation Trustee, which amendment has received the prior written approval of a majority of the members of the Supervisory Board.
Each member of the Board of Managers (other than the CEO) receives, as compensation in respect of service on the Board of Managers, (i) $20,000 per month through January 31, 2020 and (ii) $15,000
per month for each calendar month of service thereafter. The Wind-Down Entity is required to reimburse each Manager in respect of all actual, reasonable and documented out-of-pocket expenses incurred by such Manager in accordance with Wind-Down
Entity policies.
Indemnification of the Liquidation Trustee
Under Delaware law, the Trust has the power to indemnify and hold harmless any person from and against any and all claims and demands whatsoever, subject to such standards and restrictions, if any,
as are set forth in its governing instrument. The Trust is governed by the Trust Agreement, which states that the Liquidation Trustee, the Supervisory Board and each of their respective accountants, agents, assigns, attorneys, bankers, consultants,
directors, employees, executors, financial advisors, investment bankers, real estate brokers, transfer agents, managers, members, officers, partners, predecessors, principals, professional persons, representatives, and successors (each, a “Trustee
Indemnified Party”) will be indemnified for, and defended and held harmless against, any loss, liability, damage, judgment, fine, penalty, claim, demand, settlement, cost, or expense, including the reasonable fees and expenses of their
respective professionals (collectively “Damages”) incurred without gross negligence, willful misconduct, or fraud on the part of the applicable Trustee Indemnified Party (which gross negligence, willful misconduct, or fraud, if any, must be
determined by a final, non-appealable order of a court of competent jurisdiction) for any action taken, suffered, or omitted to be taken by the Trustee Indemnified Parties in connection with the acceptance, administration, exercise, and performance
of their duties under the Plan or the Trust Agreement, as applicable. An act or omission taken with the approval of the Bankruptcy Court, and not inconsistent therewith, will be conclusively deemed not to constitute gross negligence or willful
misconduct.
In addition, the Trust Agreement provides that, to the fullest extent permitted by law, each Trustee Indemnified Party shall be indemnified for, and defended and held harmless against, any and all
Damages arising out of or due to their actions or omissions, or consequences of such actions or omissions, with respect to the Trust or the implementation or administration of the Plan if the applicable Trustee Indemnified Party acted in good faith
and in a manner reasonably believed to be in, or not opposed to, the best interest of the Trust or its Interestholders.
The Trust Agreement also authorizes, but does not require, the Liquidation Trustee to obtain all reasonable insurance coverage for itself, its agents, representatives, employees or independent
contractors, including coverage with respect to the liabilities, duties and obligations of the Liquidation Trustee and its agents, representatives, employees or independent contractors under the Trust Agreement and the Plan. The cost of any such
insurance coverage will be an expense of the Trust.
Indemnification of the Board of Managers, the CEO and Executive Officers of the Wind-Down Entity
The Wind-Down Entity and the Trust are required to indemnify the members of the Board of Managers, the Chief Executive Officer, and the other officers of the Wind-Down Group, and each of their
respective accountants, agents, assigns, attorneys, bankers, consultants, directors, employees, executors, financial advisors, investment bankers, brokers, managers, members, officers, partners, predecessors, principals, professional persons,
representatives, and successors (each, a “WDE Indemnified Party”) for, and shall defend and hold them harmless against, Damages incurred without gross negligence or willful misconduct on the part of the applicable WDE Indemnified Party
(which gross negligence or willful misconduct, if any, must be determined by a final, non-appealable order of a court of competent jurisdiction) for any action taken, suffered, or omitted to be taken by the WDE Indemnified Parties in connection
with the acceptance, administration, exercise, and performance of their duties under the Plan or the Wind-Down Entity LLC Agreement, as applicable. An act or omission taken with the approval of the Bankruptcy Court, and not inconsistent therewith,
will be conclusively deemed not to constitute gross negligence or willful misconduct.
In addition, the Wind-Down Entity and the Trust are required, to the fullest extent permitted by law, indemnify, defend, and hold harmless the WDE Indemnified Parties, from and against and with
respect to any and all Damages arising out of or due to their actions or omissions, or consequences of such actions or omissions, with respect to the Wind-Down Entity or the implementation or administration of the Plan if the applicable WDE
Indemnified Party acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interest of the Wind-Down Entity.
The Wind-Down Entity is a party to indemnification agreements with its Chief Executive Officer Frederick Chin, its Chief Financial Officer Marion W. Fong, and its Chief Operating Officer and Chief
Investment Officer David Mark Kemper II. Under these agreements, the Wind-Down Entity has agreed to indemnify each of these individuals, to the fullest extent permitted by applicable law and the Wind-Down Entity’s certificate of formation and
limited liability company agreement, and the Plan, if such individual becomes a party to or a witness or other participant in any proceeding (other than a derivative action) by reason of the fact that such individual is or was an officer, manager
or employee of the Wind-Down Entity, or by reason of anything done or not done by him in any such capacity, against all expenses and liabilities incurred without gross negligence or willful misconduct by such individual.
Under these indemnification agreements, the Wind-Down Entity has also agreed to indemnify Ms. Fong and Mr. Kemper, with respect to any derivative action to which such individual becomes a party or
a witness or in which such individual becomes a participant, against expenses actually and reasonably incurred in connection with the defense or settlement of such action, provided that such individual acted in good faith and in a manner such
individual reasonably believed to be in or not opposed to the best interests of the Company. These indemnification agreements provide for proportional contribution to the Wind-Down Entity based on relative benefit and relative fault where
indemnification is held by a court to be unavailable to the individual and for the advancement by the Wind-Down Entity of the individual’s expenses under certain circumstances.
| Item 12. |
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
|
The following table sets forth certain information regarding the equity securities of the Trust beneficially owned by each member of the Supervisory Board, the Liquidation Trustee and each executive officer named in
the Summary Compensation Table (see “Item 11. Executive Compensation” of this Annual Report), and all members of the Supervisory Board, the Liquidation Trustee and all executive officers of the Wind-Down Entity as a group on September 25, 2020:
|
Name of Beneficial Owner
|
Class of Liquidation Trust
Interest
|
Amount and Nature of
Beneficial Interest
|
Percent of class7
|
|
Jay Beynon
|
Class A
Class B
|
6,666.678
0
|
Less than 1%
0
|
|
Raymond C. Blackburn, M.D.
|
Class A
Class B
|
35,788.069
13,574.7810
|
Less than 1%
2.01%
|
|
Terry R. Goebel
|
Class A
Class B
|
0
0
|
0
0
|
|
Lynn Myrick
|
Class A
Class B
|
23,819.1711
1,590.8112
|
Less than 1%
Less than 1%
|
|
John J. O’Neill
|
Class A
Class B
|
8,786.6013
0
|
Less than 1%
0
|
|
M. Freddie Reiss
|
Class A
Class B
|
0
0
|
0
0
|
|
Michael I. Goldberg
|
Class A
Class B
|
0
0
|
0
0
|
|
Frederick Chin
|
Class A
Class B
|
0
0
|
0
0
|
|
Marion W. Fong
|
Class A
Class B
|
0
0
|
0
0
|
|
David Mark Kemper II
|
Class A
Class B
|
0
0
|
0
0
|
|
All Supervisory Board members and the executive officers, as a group
|
Class A
Class B
|
75,060.50
15,165.59
|
Less than 1%
2.31%
|
The Trust does not have any compensation plans (including individual compensation arrangements) under which equity securities of the Trust are authorized for issuance.
| Item 13. |
The Supervisory Board has chosen the director independence standards of the New York Stock Exchange (the “NYSE”) to determine the independence of the members of the Supervisory Board. The
Trust is not, however, a company listed with the NYSE and does not intend to apply for listing with the NYSE. Furthermore, the Trust believes that, if it were a NYSE-listed company, the Supervisory Board would be exempt from the director
independence requirements of the NYSE by reason of one or more available exemptions from such requirements, including exemptions for companies in bankruptcy proceedings, passive business organizations in the form of trusts, and the issuers of
special purpose securities.
Applying the NYSE independence standard, the Supervisory Board has determined that all of its members other than Terry Goebel are independent. In making this determination, the Supervisory Board
concluded that neither the fees paid by the Trust in respect of service on the Supervisory Board nor the ownership of Liquidation Trust Interests by any member of the Supervisory Board precluded a finding of independence. Furthermore, the
Supervisory Board determined that the participation by Mr. Beynon, or his family trust, in a class action against Comerica Bank (see “Item 3. Legal Proceedings” of this Annual Report) does not constitute a material relationship with the Trust or
any of its subsidiaries, either directly or as a partner, shareholder or officer of any organization that has a relationship with the company.
The Supervisory Board was unable to determine the absence of a material relationship between the Wind-Down Group and Supervisory Board member Terry Goebel, who is president and a principal owner of
G3 Group LA, a construction firm specializing in the development of high-end, luxury residences. G3 Group LA is owned by Terry Goebel and his son Kelly Goebel. The Wind-Down Group is under contract with G3 Group LA for the development of one
residential real property in the Los Angeles area (the “G3 Contract”). The approximate aggregate estimated dollar value of the transactions under the G3 Contract as of June 30, 2020 is $30.0 million, of which $8.1 million was unpaid as of
June 30, 2020. On September 24, 2020, the Wind-Down Group entered into a change order increasing the estimated dollar value of the G3 Contract by approximately $3.6 million. The change order was determined to be necessary, and the amount thereof
was determined to be appropriate, in light of increases in the construction costs of the project incurred and expected to be incurred.
7 Based on 11,519,450 Class A Liquidation Trust Interests and 676,312 Class B Liquidation Interests outstanding as of September 25, 2020.
8 As trustee of a family trust.
9 Of which 25,485.81 are held individually and the remainder is beneficially owned in an individual retirement account.
10 Of which 9,667.03 are held individually and the remainder is beneficially owned in an individual retirement account.
11 Of which 13,449.54 are held by a limited liability company of which Ms. Myrick is a member, 9,224.33 are held by a family trust of which Ms. Myrick is a
beneficiary and 1,145.30 are held in a non-qualified account.
12 Held by a limited liability company, of which Ms. Myrick is a member.
13 Beneficially owned together with spouse.
Michael I. Goldberg, the Liquidation Trustee, is a partner of Akerman LLP, a law firm based in Miami, Florida. In November 2019, the Trust entered into an arrangement with Akerman LLP with the
prior approval of the Supervisory Board, including the Audit Committee. Under the arrangement, Akerman LLP from time to time will provide, at the option of the Trust on an as-needed basis, e-discovery and related litigation support services in
connection with the Trust’s prosecution of the Causes of Action. “E-discovery” (also known as electronic discovery) refers to discovery in legal proceedings, including litigation, where the information sought, such as e-mails, documents, records
and files, is in electronic format. E-discovery services assist litigants to manage potentially large amounts of data in compliance with the technical requirements of court rules designed to preserve metadata and prevent spoliation.
Under the arrangement, services available to the Trust include data processing, hosting, professional services, and forensic collection and analysis. The services are provided on a “stand-alone”
basis (i.e., they are made available to the Trust regardless of whether Akerman LLP is representing the Trust in connection with the subject litigation or any litigation). Currently, Akerman LLP does not
represent the Trust in connection with any Causes of Action or act as counsel to the Trust in any matter.
The Trust is charged for the services at scheduled rates per task which, depending on the specific task, include flat rates, rates based on the volume of data processed, rates based on the number
of data users, the hourly rates of Akerman LLP personnel, or other rates. The scheduled rates are believed to be the same as those charged by Akerman LLP to clients utilizing its legal services generally. The Supervisory Board, including the Audit
Committee, approved the arrangement after determining that Akerman LLP’s rates would be more favorable to the Trust than those proposed to be charged by at least one other major alternative provider of legal support services. Due to uncertainty
regarding the number, length and complexity of cases and the volume of discoverable documents, the Trust currently is unable to estimate the aggregate approximate dollar value of either Akerman LLP’s fees under this arrangement or Mr. Goldberg’s
interest in this arrangement. During the year ended June 30, 2020, approximately $592,000 had been paid related to these services.
The Trust has a written Related Person Transaction Policy. It requires that any “Related Person Transaction” to which the Trust is a participant must be reviewed and approved in advance by the
Supervisory Board and any “Related Person Transaction” to which the Wind-Down Group is a participant must be reviewed and approved in advance by the Board of Managers (the applicable board, in each instance, whether the Supervisory Board or the
Board of Managers, the “Applicable Board”). Under the policy, a “Related Person Transaction” is a transaction, arrangement or relationship (or any series of similar transactions, arrangements or relationships) that occurred since the beginning of
the Trust’s most recent fiscal year in which the Trust (including any of its subsidiaries) was, is or will be a participant and the amount involved exceeds $120,000 and in which any Related Person had, has or will have a direct or indirect material
interest. For purposes of this policy, a “Related Person” means:
| • |
any person who is, or at any time since the beginning of the Trust’s last fiscal year was, the Liquidation Trustee, a member of the Supervisory Board, a member of the Board of Managers, an executive officer of the Wind-Down Entity or a
nominee to become a member of the Board of Managers or a more than 5% beneficial owner of the Trust;
|
| • |
any immediate family member of any of the foregoing persons, which means any child, stepchild, parent, stepparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law of the
Liquidation Trustee, a member of the Board of Managers, an executive officer of the Wind-Down Entity, or a nominee to become a member of the Board of Managers, or a more than 5% beneficial owner of the Trust, and any person (other than
domestic employees or tenants) sharing the household of any such person; and
|
| • |
any firm, corporation or other entity in which any of the foregoing persons is employed or is a partner or principal or in a similar position or in which such person has a 5% or greater beneficial ownership interest.
|
The following transactions are not considered Related Person Transactions for purposes of this policy: (a) base compensation for services rendered as the Liquidation Trustee, paid in accordance
with the Liquidation Trust Agreement; (b) compensation for services rendered as a member of the Supervisory Board, paid in accordance with the Liquidation Trust Agreement; (c) in accordance with the Liquidation Trust Agreement, reimbursement of
expenses incurred by the Liquidation Trustee or any member of the Supervisory Board incurred in the ordinary course of carrying out their respective responsibilities in such capacities; (d) any transaction where the rates or charges involved in the
transaction are determined by competitive bids; or (e) any transaction that involves the rendering of services at rates or charges fixed in conformity with law or governmental authority.
Furthermore, neither the G3 Contract nor the payment or performance by the Wind-Down Group of its obligations thereunder in accordance with the current terms thereof is considered a Related Person
Transaction for purposes of the policy. The G3 Contract was entered into between the Debtors and G3 before the organization of the Trust and did not require any review, approval or ratification under the Related Person Transaction Policy. However,
a change order entered into on September 24, 2020 was reviewed under the Related Person Transaction Policy.
Under the policy, the Applicable Board is to consider all of the relevant facts and circumstances available, including (if applicable), but not limited to:
| • |
The benefits to the Trust and the Wind-Down Entity;
|
| • |
The impact on the independence of a member of the Supervisory Board or the Board of Managers in the event the Related Person is a member of the Supervisory Board, a member of the Board of Managers, an immediate family member of any such
member, or an entity in which any such member is a director, officer, manager, principal, member, partner, shareholder or executive officer;
|
| • |
The availability of other sources for comparable products or services;
|
| • |
The terms of the transaction; and
|
| • |
The terms available to unrelated third parties and employees generally.
|
The policy prohibits any member of the Applicable Board from participating in any review, consideration or approval of any Related Person Transaction with respect to which such member or any of his
or her immediate family members is the Related Person. The Applicable Board may approve only those Related Person Transactions that are in, or are not inconsistent with, the best interests of the Trust and its stakeholders, as the Applicable Board
determines in good faith. In addition, no immediate family member of the Liquidation Trustee or any member of the Supervisory Board, member of the Board or Managers, or executive officer of the Wind-Down Group may be hired as an employee of the
Trust or the Wind-Down Group unless the employment arrangement is approved in advance by the Applicable Board. In the event a person becomes a director or executive officer of the Trust or the Wind-Down Group and an immediate family member of such
person is already an employee of the Trust or the Wind-Down Group, no material change in the terms of employment, including compensation, may be made without the prior approval of the Applicable Board (except, if the immediate family member is
himself or herself an executive officer of the Trust or the Wind-Down Group, any proposed change in the terms of employment must be reviewed and approved in the same manner as other executive officer compensatory arrangements).
The Audit Committee of the Supervisory Board has the authority, subject to a final review by all disinterested members of the Supervisory Board, to review and approve all Related Person
Transactions in which the Trust is a participant.
| Item 14. |
Principal Accounting Fees and Services
|
Independent Registered Public Accounting Firm
Squar Milner has served as our independent registered public accounting firm since July 19, 2019.
Principal Independent Registered Public Accounting Firm Fees
Set forth below are aggregate fees billed to us for professional accounting services for the year ended June 30, 2020 and the period from February 15, 2019 (inception) through June 30, 2019:
|
Year Ended
June 30, 2020
|
February 15, 2019
(inception)
through
June 30, 2019
|
|||||||
|
Audit Fees
|
$
|
403,400
|
$
|
267,600
|
||||
|
Audit-related fees
|
-
|
-
|
||||||
|
Tax fees
|
-
|
-
|
||||||
|
All other fees
|
-
|
-
|
||||||
|
Total
|
$
|
403,400
|
$
|
267,600
|
||||
For purposes of the preceding table, the professional fees are classified as follows:
| • |
Audit Fees: These fees for professional services performed for the audit of our annual consolidated financial statements, the required review of quarterly consolidated financial statements,
registration statements and other procedures performed by independent auditors in order for them to be able to form an opinion on our consolidated financial statements.
|
| • |
Audit-Related Fees: These are fees for assurance and related services that traditionally are performed by independent auditors that are reasonably related to the performance of the audit or review
of the consolidated financial statements, such as due diligence related to acquisitions and dispositions, attestation services that are not required by statute or regulation, internal control reviews, and consultation concerning financial
accounting and reporting standards.
|
| • |
Tax Fees: These are fees for all professional services performed by professional staff in our independent auditor’s tax
division, except those services related to the audit of our consolidated financial statements. These include fees for tax compliance, tax planning, and tax advice, including federal, state, and local issues. Services may also include
assistance with tax audits and appeals before the IRS and similar state and local agencies, as well as federal, state and local tax issues related to due diligence.
|
| • |
All Other Fees: These are fees for any services not included in the above-described categories, including assistance with internal audit plans and risk assessments.
|
Pre-Approval Policies
In order to ensure that the provision of services by our independent registered public accounting firm does not impair the auditors’ independence, the Audit Committee pre-approves all auditing
services performed for the Company by our independent auditors, as well as all permitted non-audit services. In determining whether or not to pre-approve services, the Audit Committee considers whether the service is a permissible service under the
rules and regulations promulgated by the SEC.
All services rendered by Squar Milner for the year ended June 30, 2020 and the period from February 15, 2019 (inception) through June 30, 2019 were pre-approved by the Audit Committee in accordance
with the policies and procedures described above.
Part IV
| |
(a) |
(1) Consolidated Financial Statements:
|
The consolidated financial statements of the Company are included in a separate section of this Annual Report commencing on the page numbers specified below:
Woodbridge Liquidation Trust
Index to Consolidated Financial Statements
|
Page
|
|
|
Audited Consolidated Financial Statements
|
|
|
For the year ended June 30, 2020 and the period from February 15, 2019 (inception) through June 30, 2019:
|
|
|
Report of Independent Registered Public Accounting Firm
|
F-1
|
|
Consolidated Statements of Net Assets in Liquidation as of June 30, 2020 and 2019
|
F-2
|
|
Consolidated Statements of Changes in Net Assets in Liquidation for the year ended June 30, 2020 and the period from February 15, 2019 (inception) through June 30, 2019
|
F-3
|
|
Notes to Consolidated Financial Statements
|
F-4
|
|
(a)
|
(2) Financial Statement Schedules:
|
Financial statement schedules have been omitted because they are either not required or not applicable, or because the information required to be presented is included in the consolidated financial
statements or the notes thereto included in this Annual Report.
| (b) |
Exhibits
|
|
First Amended Joint Chapter 11 Plan of Liquidation of Woodbridge Group of Companies, LLC and its Affiliated Debtors dated August 22, 2018, incorporated herein by reference to the Registration Statement on
Form 10 filed by the Trust on October 25, 2019
|
|
|
Certificate of Trust of Woodbridge Liquidation Trust dated February 14 and effective February 15, 2019, incorporated herein by reference to the Registration Statement on Form 10 filed by the Trust on October
25, 2019
|
|
|
Liquidation Trust Agreement of Woodbridge Liquidation Trust dated February 15, 2019, as amended by Amendment No. 1 dated August 21, 2019 and Amendment No. 2 dated September 13, 2019, incorporated herein by
reference to the Registration Statement on Form 10 filed by the Trust on October 25, 2019
|
|
|
Amendment No. 3 to Liquidation Trust Agreement dated as of November 1, 2019, incorporated herein by reference to Amendment No. 1 to Registration Statement on Form 10 filed by the Trust on December 13, 2019
|
|
|
Amendment No. 4 to Liquidation Trust Agreement dated as of February 5, 2020, incorporated herein by reference to the Current Report on Form 8-K filed by the Trust on February 6, 2020
|
|
|
Amended and Restated Bylaws of Woodbridge Liquidation Trust effective August 21, 2019, incorporated herein by reference to the Registration Statement on Form 10 filed by the Trust on October 25, 2019
|
|
|
Limited Liability Company Agreement of Woodbridge Wind-Down Entity LLC dated February 15, 2019, incorporated herein by reference to the Registration Statement on Form 10 filed by the Trust on October 25, 2019
|
|
|
Loan and Security Agreement dated June 19, 2020 by and among WB Propco, LLC and WB 141 S. Carolwood, LLC, as Borrowers, Woodbridge Wind-Down Entity LLC, as Guarantor, and City National Bank of Florida, as
Lender, incorporated herein by reference to Amendment No. 1 to the Current Report on Form 8-K filed by the Trust on June 29, 2020
|
|
|
Amended and Restated Employment Agreement dated July 31, 2019 between Woodbridge Wind-Down Entity LLC and Frederick Chin, incorporated herein by reference to the Registration Statement on Form 10 filed by the
Trust on October 25, 2019
|
|
|
First Amendment to Amended and Restated Employment Agreement dated September 24, 2020 between Woodbridge Wind-Down Entity LLC and Frederick Chin
|
|
|
Indemnification Agreement dated February 27, 2019 between Woodbridge Wind-Down Entity LLC and Frederick Chin, incorporated herein by reference to the Registration Statement on Form 10 filed by the Trust on
October 25, 2019
|
|
|
Employment Agreement dated November 12, 2019 between Woodbridge Wind-Down Entity LLC and Marion W. Fong, incorporated herein by reference to Amendment No. 1 to Registration Statement on Form 10 filed by the
Trust on December 13, 2019
|
|
|
First Amendment to Employment Agreement dated September 24, 2020 between Woodbridge Wind-Down Entity LLC and Marion W. Fong
|
|
|
Indemnification Agreement dated November 12, 2019 between Woodbridge Wind-Down Entity LLC and Marion W. Fong, incorporated herein by reference to Amendment No. 1 to Registration Statement on Form 10 filed by
the Trust on December 13, 2019.
|
|
|
Employment Agreement dated November 12, 2019 between Woodbridge Wind-Down Entity LLC and David Mark Kemper, incorporated herein by reference to Amendment No. 1 to Registration Statement on Form 10 filed by
the Trust on December 13, 2019.
|
|
|
First Amendment to Employment Agreement dated September 24, 2020 between Woodbridge Wind-Down Entity LLC and David Mark Kemper
|
|
|
Indemnification Agreement dated November 12, 2019 between Woodbridge Wind-Down Entity LLC and David Mark Kemper, incorporated herein by reference to Amendment No. 1 to Registration Statement on Form 10 filed
by the Trust on December 13, 2019.
|
|
|
Stipulation and Settlement Agreement between the United States and Woodbridge Liquidation Trust, as approved by order of the United States Bankruptcy Court for the District of Delaware entered September 17, 2020.
|
|
|
Certification of Liquidation Trustee pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
|
Certification of Liquidation Trustee pursuant to 18 U.S.C. 1350, as Adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
|
|
Findings of Fact, Conclusions of Law, and Order Confirming the First Amended Joint Chapter 11 Plan of Liquidation of Woodbridge Group of Companies, LLC and its Affiliated Debtors, entered October 26, 2018,
incorporated herein by reference to the Registration Statement on Form 10 filed by the Trust on October 25, 2019.
|
|
|
XBRL
|
*Filed herewith
Woodbridge Liquidation Trust
Index to Consolidated Financial Statements
|
Page
|
|
|
Audited Consolidated Financial Statements
|
|
|
For the year ended June 30, 2020 and the period from February 15, 2019 (inception) through June 30, 2019:
|
|
|
Report of Independent Registered Public Accounting Firm
|
F-1
|
|
Consolidated Statements of Net Assets in Liquidation as of June 30, 2020 and 2019
|
F-2
|
|
Consolidated Statements of Changes in Net Assets in Liquidation for the year ended June 30, 2020 and the period from February 15, 2019 (inception) through June 30, 2019
|
F-3
|
|
Notes to Consolidated Financial Statements
|
F-4
|
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Supervisory Board and Liquidation Trustee of Woodbridge Liquidation Trust and Subsidiaries
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated statements of net assets in liquidation of Woodbridge Liquidation Trust and subsidiaries (the “Company”) as of June 30, 2020 and 2019, the related
consolidated statements of changes in net assets in liquidation for the year ended June 30, 2020 and for the period from February 15, 2019 (inception) through June 30, 2019, and the related notes (collectively referred to as the “consolidated
financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the net assets in liquidation of the Company as of June 30, 2020 and 2019, and the changes in net assets in liquidation for
the year ended June 30, 2020 and for the period from February 15, 2019 (inception) through June 30, 2019, in conformity with U.S. generally accepted accounting principles applied on the basis described below.
As described in Note 2, these consolidated financial statements have been prepared on the liquidation basis of accounting.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based
on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with U.S. federal securities laws
and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated
financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are
required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such
opinion.
Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that
respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and
significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ Squar Milner LLP
We have served as the Company’s auditor since 2019.
Irvine, California
September 25, 2020
September 25, 2020
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Woodbridge Liquidation Trust and Subsidiaries
Consolidated Statements of Net Assets in Liquidation
As of June 30, 2020 and 2019
($ in Thousands)
|
6/30/2020
|
6/30/2019
|
|||||||
|
Assets
|
||||||||
|
Real estate held for sale, net (Note 3):
|
||||||||
|
Single-family homes under development
|
$
|
143,585
|
$
|
265,340
|
||||
|
Real estate available for sale
|
145,752
|
216,336
|
||||||
|
Subtotal
|
289,337
|
481,676
|
||||||
|
Cash and cash equivalents
|
86,073
|
34,998
|
||||||
|
|
||||||||
|
Restricted cash (note 4)
|
5,358
|
3,364
|
||||||
|
|
||||||||
|
Other assets (note 5)
|
4,183
|
2,436
|
||||||
|
Total assets
|
$
|
384,951
|
$
|
522,474
|
||||
|
Liabilities
|
||||||||
|
Accounts payable and accrued expenses
|
$
|
615
|
$
|
441
|
||||
|
Distribution payable
|
2,368
|
1,814
|
||||||
|
Accrued liquidation costs (Note 6)
|
117,451
|
190,248
|
||||||
|
Total Liabilities
|
$
|
120,434
|
$
|
192,503
|
||||
|
Commitments and contingencies (Note 12)
|
||||||||
|
Net Assets in Liquidation
|
$
|
264,517
|
$
|
329,971
|
||||
See accompanying notes to consolidated financial statements.
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Consolidated Statements of Changes in Net Assets in Liquidation
For the Year Ended June 30, 2020
and the Period from February 15, 2019 (inception) through June 30, 2019
($ in Thousands)
|
Year
Ended
June 30, 2020
|
Period From
February 15, 2019
(inception) Through
June 30, 2019
|
|||||||
|
Net Assets in Liquidation as of beginning of period
|
$
|
329,971
|
$
|
-
|
||||
|
Net assets contributed on February 15, 2019 (Note 1)
|
-
|
383,492
|
||||||
|
Change in assets and liabilities (Note 7):
|
||||||||
|
Change in carrying value of assets and liabilities, net
|
11,334
|
(8,835
|
)
|
|||||
|
Distributions declared, net
|
(76,788
|
)
|
(44,686
|
)
|
||||
|
Net change in assets and liabilities
|
(65,454
|
)
|
(53,521
|
)
|
||||
|
Net Assets in Liquidation as of end of period
|
$
|
264,517
|
$
|
329,971
|
||||
See accompanying notes to consolidated financial statements.
F - 3
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
| 1) |
Formation, Organization and Description of Business
|
Formation
Woodbridge Liquidation Trust (Trust) was established (i) for the purpose of collecting, administering, distributing and liquidating the Trust assets for the benefit of the Trust beneficiaries in
accordance with the Liquidation Trust Agreement and the First Amended Joint Chapter 11 Plan of Liquidation of Woodbridge Group of Companies, LLC and Its Affiliated Debtors dated August 22, 2018 (as amended, modified, supplemented or restated from
time to time; the (Plan)); (ii) to resolve disputed claims asserted against the Debtors; (iii) to litigate and/or settle causes of action (Causes of Action); and (iv) to pay certain allowed claims and statutory fees, as required by the Plan.
Woodbridge Group of Companies, LLC and its affiliated debtors are individually referred to herein as a Debtor and collectively as Debtors. The Trust was formed on February 15, 2019 (Plan Effective Date) as a statutory trust under Delaware law.
On the Plan Effective Date, in accordance with the Plan, (a) the following assets automatically vested in the Trust: (i) an aggregate $5,000,000 in cash from the Debtors for the purpose of funding
the Trust’s initial expenses of operation; (ii) certain claims and Causes of Action; (iii) all of the outstanding equity interests of the Wind-Down Entity (as defined below); and (iv) certain other non-real estate related assets, (b) the equity
interests of Woodbridge Group of Companies, LLC and Woodbridge Mortgage Investment Fund 1, LLC (together, the Remaining Debtors) were cancelled and new equity interests representing all of the newly issued and outstanding equity interests in the
Remaining Debtors were issued to the Trust, (c) all of the other Debtors other than the Remaining Debtors were dissolved and (d) the real estate-related assets of the Debtors were automatically vested in the Trust’s wholly-owned subsidiary,
Woodbridge Wind-Down Entity LLC (Wind-Down Entity) or one of the Wind-Down Entity’s 43 wholly-owned single member LLCs (Wind-Down Subsidiaries) formed to own the respective real estate assets. The Trust, the Remaining Debtors, the Wind-Down Entity
and the Wind-Down Subsidiaries are collectively referred to herein as the Company.
On December 24, 2019, the Trust’s Registration Statement on Form 10 became effective under the Securities Exchange Act of 1934 (Exchange Act). The trading symbol for the Trust’s Class A Liquidation
Trust Interests (Class A Interests) is WBQNL. The Trust’s Class A Interests are quoted on the OTC Link ATS, the SEC-registered alternative trading system. The Class A Interests are eligible for the Depository Trust Company’s Direct Registration
(DRS) services.
Organization
The Trust does not have directors or executive officers. All of the management and executive authority of the Trust resides with the liquidation trustee, subject to the supervision of a six-member
supervisory board. The Wind-Down Entity is separately managed by its three-member board of managers, one of whom is the chief executive officer.
There are two classes of Trust beneficiaries, Class A Liquidation Trust Interests (Class A Interests) and Class B Liquidation Trust Interests (Class B Interests), collectively, the Liquidation
Trust Interests. The Liquidation Trust Interests are non-voting. The holders of the Class A Interests and the Class B Interests have the same rights, except with respect to certification, transferability and payment of distributions. See Note 10
regarding the priority and manner of distribution of available cash.
The Wind-Down Entity, from time to time, will make distributions to the Trust, as available. The Trust will in turn make distributions, from time to time, to the Trust beneficiaries, as available.
F - 4
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
The Trust will be terminated upon the first to occur of (i) the making of all distributions required to be made and a determination by the liquidation trustee that the pursuit of additional causes
of action held by the Trust is not justified or (ii) February 15, 2024. However, the bankruptcy court may approve an extension of the term if deemed necessary to facilitate or complete the recovery on, and liquidation of, the Trust assets. The
Wind-Down Entity will be dissolved upon the completion of the liquidation of its assets.
Description of Business
The Trust is prosecuting various Causes of Action acquired by the Trust pursuant to the Plan and is resolving claims asserted against the Debtors.
As of June 30, 2020, the Wind-Down Subsidiaries are constructing nine single-family homes, primarily located in Los Angeles, California, including one single-family home that was sold in February
2020 that the Company has an obligation to complete but was still under construction at June 30, 2020. The Wind-Down Subsidiaries also own real estate that is available for sale, including single-family homes and lots located in Los Angeles,
California, secured loans (performing and non-performing) and other properties in other states.
The Company is required to liquidate its assets and distribute available cash to the Trust beneficiaries. The liquidation activities are carried out by the Trust, the Wind-Down Entity and the
Wind-Down Subsidiaries. As discussed in Note 2, the Company uses the Liquidation Basis of Accounting. The Trust currently operates as one reportable segment comprised primarily of real estate assets held for sale.
F - 5
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
Net assets recorded by the Company as of the Plan Effective Date of February 15, 2019 were composed of the following ($ in thousands):
|
Assets
|
||||
|
Real estate assets held for sale:
|
||||
|
Single-family homes under development
|
$
|
361,000
|
||
|
Real estate assets available for sale:
|
||||
|
Single-family homes
|
186,119
|
|||
|
Lots
|
45,910
|
|||
|
Secured loans
|
9,707
|
|||
|
Other properties
|
15,392
|
|||
|
Subtotal
|
257,128
|
|||
|
Real estate assets held for sale
|
618,128
|
|||
|
Closing and other costs
|
(35,418
|
)
|
||
|
Real estate assets held for sale, net
|
582,710
|
|||
|
Cash
|
36,020
|
|||
|
Restricted cash
|
317
|
|||
|
Other assets
|
2,297
|
|||
|
Total assets
|
$
|
621,344
|
||
|
Liabilities
|
||||
|
Accounts payable and accrued expenses
|
$
|
5,785
|
||
|
Accrued liquidation costs
|
232,067
|
|||
|
Total liabilities
|
$
|
237,852
|
||
|
Net Assets in Liquidation
|
$
|
383,492
|
||
Net assets in liquidation represent the remaining estimated aggregate value available to Trust beneficiaries upon liquidation, with no discount for the timing of proceeds (undiscounted). Due to
the unpredictability of real estate market values, as well as the uncertainty in the timing of liquidation of the real estate and other assets, net liquidation proceeds, other recoveries and actual liquidation costs may differ materially from the
estimated amounts. As of June 30, 2020, the Company is the plaintiff in several pending lawsuits. The Company is unable to estimate the amount of recovery, if any, related to this litigation. During the year ended June 30, 2020 and the period
from February 15, 2019 (inception) to June 30, 2019, settlement recoveries of approximately $5,323,000 and $1,637,000, respectively, were recorded. The Company has accrued an estimate of the amount of legal costs to be incurred to pursue this
litigation, excluding contingent fees. As more fully discussed in Note 2, the Company’s consolidated financial statements do not include any estimate of future net recoveries from litigation and settlement, since the Company cannot reasonably
estimate them.
The Trust’s expectations about the amount of any additional distributions and when they will be paid are subject to risks and uncertainties and are based on certain estimates and assumptions, one
or more of which may prove to be incorrect. As a result, the actual amount of any additional distributions may differ materially, perhaps in adverse ways, from the Trust estimates. Furthermore, it is not possible to predict the timing of any
additional distributions and such distributions may not be made within the timing referenced in the consolidated financial statements.
F - 6
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
No assurance can be given that total distributions will equal or exceed the estimate of net assets in liquidation presented in the consolidated statements of net assets in
liquidation.
As a result of the COVID-19 outbreak, three of the Wind-Down Subsidiaries construction sites were closed for about three months. The Company will continue to evaluate the impact of the COVID-19
outbreak on the cost of construction and the timing of completion of the single-family homes that are under construction. The Company will also continue to evaluate the impact of these events on the time needed to sell the single-family homes and
the price at which these single-family homes will be sold.
The ultimate impact of COVID-19 will depend on many factors, some of which cannot be foreseen, including the duration, severity, and geographic concentrations of the pandemic and any resurgence of
the disease; the impact of COVID-19 on the nation’s economy and debt and equity markets and the local economies in the markets in which our real estate assets are located; the development and availability of COVID-19 infection and antibody testing,
therapeutic agents and vaccines and the prioritization of such resources among businesses and demographic groups; government financial and regulatory relief efforts that may become available to businesses and individuals; and changes in
unemployment rates, consumer confidence and equity markets caused by COVID-19.
| 2) |
Summary of Significant Accounting Policies
|
Basis of Presentation and Consolidation
The accompanying consolidated financial statements of the Company have been prepared in accordance with U.S. Generally Accepted Accounting Principles (U.S. GAAP) and pursuant to the rules and
regulations of the Securities and Exchange Commission (SEC). These consolidated financial statements have been presented in accordance with Accounting Standards Codification (ASC) Subtopic 205-30, “Liquidation Basis of Accounting,” as amended by,
Accounting Standards Update (ASU) No. 2013-07, “Presentation of Financial Statements (Topic 205), Liquidation Basis of Accounting.”
All material intercompany accounts and transactions have been eliminated.
Use of Estimates
U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the
consolidated financial statements and for the period then ended. Actual results could differ from these estimates. Estimates and assumptions are reviewed periodically, and the carrying amounts of assets and liabilities are revised in the period
that available information supports a change in the carrying amount.
F - 7
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
Liquidation Basis of Accounting
Under the Liquidation Basis of Accounting, all assets are recorded at their estimated net realizable value or liquidation value, which represents the estimated amount of net cash that will be
received upon the disposition of the assets (on an undiscounted basis). The measurement of real estate assets held for sale is based on current contracts (if any), estimates and other indications of sales value, net of estimated selling costs. To
determine the value of real estate assets held for sale, the Company considered the three traditional approaches to value (cost, income and sales comparison) commonly used by the real estate appraisal community. The applicability and relevancy of
each valuation approach as applied may differ by asset. In most cases, the sales comparison approach was accorded the greatest weight. This approach compares a property to other properties with similar characteristics that have recently sold. To
validate management’s estimate, the Company also considers opinions from qualified real estate professionals and local real estate brokers and, in some cases, obtained third party appraisals. The estimated selling costs range from 5.0% to 6.5%.
Liabilities, including estimated costs associated with implementing and completing the Plan, are measured in accordance with U.S. GAAP that otherwise applies to those liabilities. The Company has
also recorded the estimated development costs to be incurred to prepare the assets for sale as well as the estimated holding costs to be incurred until the projected sale date and the estimated general and administrative costs to be incurred until
the completion of the liquidation of the Company. When estimating development costs, the Company considered third party construction contracts and estimates of costs to complete based on construction status, progress and projected completion
timing. Estimated development costs also include the costs of design and furnishings necessary to prepare and stage the homes for marketing. Holding cost estimates consider property taxes, insurance, utilities, maintenance and other costs to be
incurred until the sale of the property is closed. Projected general and administrative cost estimates take into account operating costs through the completion of the liquidation of the Company.
These estimated amounts are presented in the accompanying consolidated statements of net assets in liquidation included in the consolidated financial statements. All changes in the estimated
liquidation value of the Company’s real estate held for sale, or other assets and liabilities are reflected as a change to the Company’s net assets in liquidation.
The Company has not recorded any amount from the future settlement of Causes of Action, fair funds or forfeited assets in the accompanying consolidated financial statements since they cannot be
reasonably estimated. The amount recovered may be material to the Company’s net assets in liquidation.
On a quarterly basis, the Company reviews the estimated net realizable values and liquidation costs and records any significant changes. The Company will also revalue an asset when it is under
contract for sale and the buyer’s contingencies have been removed. During the period when this occurs, the carrying value of the asset and the estimated closing and other costs will be adjusted, if necessary. If the Company has a change in its plan
for the disposition of an asset, the carrying value will be adjusted to reflect this change in the period that the change is approved. The change in value may include the accrued liquidation costs related to the asset.
F - 8
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
Other Assets
The Company recognizes recoveries from the settlement of Causes of Action when an agreement is executed and collectability is reasonably assured. Insurance claims are recognized when the insurance
company accepts the claim or if a claim is pending and the recoverable amount can be estimated. The Company records escrow receivables at the amount that is expected to be received when the escrow receivable is released. In addition, the Company
recognizes other amounts to be received based on contractual terms or when the amounts to be received are certain.
Accrued Liquidation Costs
The Company accrues for estimated liquidation costs to the extent they are reasonably determinable. These costs consist of (a) estimated development costs of the single-family homes under
development, other project related costs, architectural and engineering, project management, city fees, bond payments (net of refunds), furnishings, marketing and other costs; (b) estimated holding costs, including property taxes, insurance,
maintenance, utilities and other; and (c) estimated general and administrative costs including payroll, legal and other professional fees, trustee and board fees, rent and other office related expenses, interest on financing and other general and
administrative costs to operate the Company.
Cash Equivalents
The Company considers short-term investments that have a maturity date of ninety days or less at the time of investment to be a cash equivalent. The Company’s cash equivalents include money market
savings deposits and money market funds.
Restricted Cash
Restricted cash includes cash that can only be used for certain specified purposes.
Concentrations of Credit Risk
Financial instruments that potentially subject the Company to concentrations of credit risk consist principally of cash, cash equivalents and restricted cash. At times, balances in any one
financial institution may exceed the Federal Deposit Insurance Corporation insurance limits. The Company believes it mitigates this risk by depositing its cash, cash equivalents and restricted cash in high-credit quality financial institutions.
Income Taxes
The Trust is intended to be treated as a grantor trust for income tax purposes and, accordingly, is not subject to federal or state income tax on any income earned or gain recognized by the Trust.
The Trust’s beneficiaries will be treated as the owner of a pro rata portion of each asset, including cash and each liability received by and held by the Trust, and each beneficiary will be required to report on his or her federal and state income
tax return his or her pro rata share of taxable income, including gains and losses recognized by the Trust. Accordingly, there is no provision for federal or state income taxes recorded in the accompanying consolidated financial statements.
F - 9
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
The Company regularly analyzes its various federal and state filing positions and only recognizes the income tax effect in the consolidated financial statements when certain criteria regarding
uncertain income tax positions have been met. The Company believes that its income tax positions would be more likely than not be sustained upon examination by all relevant taxing authorities. Therefore, no provision for uncertain income tax
positions has been recorded in the consolidated financial statements.
| 3) |
Real Estate Assets Held for Sale
|
The Company’s real estate assets held for sale as of June 30, 2020 and 2019, are as follows ($ in thousands):
|
June 30, 2020
|
June 30, 2019
|
|||||||||||||||||||||||||||||||
|
Number of
Assets
|
Gross Value
|
Closing and
Other Costs
|
Net Value
|
Number
of Assets
|
Gross Value
|
Closing and
Other Costs
|
Net Value
|
|||||||||||||||||||||||||
|
Single-family homes under development
|
8
|
$
|
152,750
|
$
|
(9,165
|
)
|
$
|
143,585
|
14
|
$
|
282,000
|
$
|
(16,660
|
)
|
$
|
265,340
|
||||||||||||||||
|
Real estate assets available for sale:
|
||||||||||||||||||||||||||||||||
|
Single-family homes
|
5
|
145,618
|
(7,907
|
)
|
137,711
|
11
|
193,701
|
(10,823
|
)
|
182,878
|
||||||||||||||||||||||
|
Lots
|
2
|
3,500
|
(193
|
)
|
3,307
|
35
|
16,755
|
(1,097
|
)
|
15,658
|
||||||||||||||||||||||
|
Secured loans
|
4
|
1,984
|
(86
|
)
|
1,898
|
20
|
5,581
|
(279
|
)
|
5,302
|
||||||||||||||||||||||
|
Other properties
|
13
|
3,018
|
(182
|
)
|
2,836
|
15
|
13,290
|
(792
|
)
|
12,498
|
||||||||||||||||||||||
|
Subtotal
|
24
|
154,120
|
(8,368
|
)
|
145,752
|
81
|
229,327
|
(12,991
|
)
|
216,336
|
||||||||||||||||||||||
|
Total
|
32
|
$
|
306,870
|
$
|
(17,533
|
)
|
$
|
289,337
|
95
|
$
|
511,327
|
$
|
(29,651
|
)
|
$
|
481,676
|
||||||||||||||||
The single-family homes under development, except one, are located in the Los Angeles, California area. Of the real estate assets available for sale, all of the single-family homes are located in
the Los Angeles, California area. The lots are located in Los Angeles, California. The loans are secured by properties located primarily in the Midwest and Eastern United States. The other properties are located primarily in Hawaii and the Midwest
United States.
During the year ended June 30, 2020, the Company sold twelve single-family homes, 33 lots, settled three secured loans and sold two other properties for net proceeds of approximately $201,333,000.
As a result of the lack of interest during the auction process, the Wind-Down Entity will no longer be pursuing recoveries related to 13 secured loans. During the period from February 15, 2019 (inception) through June
30, 2019, the Company sold five single-family homes, 58 lots, three other properties and settled two secured loans for net proceeds of approximately $80,030,000.
F - 10
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
| 4) |
Restricted Cash
|
The Company’s restricted cash as of June 30, 2020 and 2019, is as follows ($ in thousands):
|
June 30, 2020
|
June 30, 2019
|
|||||||
|
Distributions restricted by the Company related to unresolved claims, uncashed distribution checks, distributions for recently allowed claims, distributions withheld due to pending avoidance
actions and distributions that the Trust is waiting for further beneficiary information
|
$
|
2,372
|
$
|
1,810
|
||||
|
Interest reserve (note 8)
|
1,750
|
-
|
||||||
|
Fair funds, legally restricted for distribution
|
1,236
|
1,237
|
||||||
|
Other
|
-
|
317
|
||||||
|
Total restricted cash
|
$
|
5,358
|
$
|
3,364
|
||||
F - 11
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
| 5) |
Other Assets
|
The Company’s other assets as of June 30, 2020 and 2019, are as follows ($ in thousands):
|
June 30, 2020
|
June 30, 2019
|
|||||||
|
Insurance claim receivable
|
$
|
1,900
|
$
|
1,900
|
||||
|
Escrow receivables (1)
|
1,500
|
-
|
||||||
|
Settlement installment receivables
|
575
|
518
|
||||||
|
Other
|
208
|
18
|
||||||
|
Total other assets
|
$
|
4,183
|
$
|
2,436
|
||||
(1) Escrow holdbacks relating to two single-family homes that were sold; amounts to be released upon completion of repairs and construction.
F - 12
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
| 6) |
Accrued Liquidation Costs
|
The following is a summary of accrued liquidation costs as of June 30, 2020 and 2019 ($ in thousands):
|
June 30, 2020
|
June 30, 2019
|
|||||||
|
Development costs:
|
||||||||
|
Construction costs
|
$
|
67,204
|
$
|
115,947
|
||||
|
Construction warranty
|
2,870
|
3,955
|
||||||
|
Indirect costs
|
1,407
|
2,112
|
||||||
|
Bond refunds
|
(1,562
|
)
|
(2,152
|
)
|
||||
|
Total development costs
|
69,919
|
119,862
|
||||||
|
Holding costs:
|
||||||||
|
Property tax
|
5,918
|
6,087
|
||||||
|
Insurance
|
2,125
|
6,345
|
||||||
|
Maintenance, utilities and other
|
1,518
|
2,508
|
||||||
|
Total holding costs
|
9,561
|
14,940
|
||||||
|
General and administrative costs:
|
||||||||
|
Legal and other professional fees
|
17,588
|
26,550
|
||||||
|
Payroll and payroll related
|
13,425
|
13,757
|
||||||
|
State, local and other taxes
|
2,118
|
6,062
|
||||||
|
Board fees and expenses
|
1,725
|
3,995
|
||||||
|
Marketing
|
765
|
1,583
|
||||||
|
Other
|
2,350
|
3,499
|
||||||
|
Total general and administrative costs
|
37,971
|
55,446
|
||||||
|
Total accrued liquidation costs
|
$
|
117,451
|
$
|
190,248
|
||||
F - 13
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
| 7) |
Net Change In Assets and Liabilities
|
The following provides details of the change in carrying value of assets and liabilities, net during the year ended June 30, 2020 ($ in thousands):
|
Cash
Activities
|
Remeasure-
ment
|
Total
|
||||||||||
|
Real estate assets, net
|
$
|
(201,576
|
)
|
$
|
9,237
|
$
|
(192,339
|
)
|
||||
|
Cash and cash equivalents
|
127,309
|
-
|
127,309
|
|||||||||
|
Restricted cash
|
1,994
|
-
|
1,994
|
|||||||||
|
Other assets
|
(2,044
|
)
|
3,791
|
1,747
|
||||||||
|
Total assets
|
$
|
(74,317
|
)
|
$
|
13,028
|
$
|
(61,289
|
)
|
||||
|
Accounts payable and accrued expenses
|
$ |
(704
|
)
|
$ |
878
|
$ |
174
|
|||||
|
Accrued liquidation costs
|
(80,831
|
)
|
8,034
|
(72,797
|
)
|
|||||||
|
Total liabilities
|
$
|
(81,535
|
)
|
$
|
8,912
|
$
|
(72,623
|
)
|
||||
|
Change in carrying value of assets and liabilities, net
|
$ |
7,218
|
$ |
4,116
|
$ |
11,334
|
||||||
The following provides details of the distributions declared, net, during the year ended June 30, 2020 ($ in thousands):
|
Distributions declared
|
$
|
(78,432
|
)
|
|
|
Distributions reversed
|
1,644
|
|||
|
Distributions declared, net
|
$
|
(76,788
|
)
|
F - 14
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
The following provides details of the change in carrying value of assets and liabilities, net during the period from February 15, 2019 (inception) through June 30, 2019 ($ in thousands):
|
Cash
Activities
|
Remeasure-
ment
|
Total
|
||||||||||
|
Real estate assets, net
|
$
|
(79,429
|
)
|
$
|
(21,605
|
)
|
$
|
(101,034
|
)
|
|||
|
Cash and cash equivalents
|
41,850
|
-
|
41,850
|
|||||||||
|
Restricted cash
|
3,047
|
-
|
3,047
|
|||||||||
|
Other assets
|
(59
|
)
|
198
|
139
|
||||||||
|
Total assets
|
$
|
(34,591
|
)
|
$
|
(21,407
|
)
|
$
|
(55,998
|
)
|
|||
|
Accounts payable and accrued expenses
|
$
|
(5,432
|
)
|
$
|
88
|
$
|
(5,344
|
)
|
||||
|
Accrued liquidation costs
|
(32,747
|
)
|
(9,072
|
)
|
(41,819
|
)
|
||||||
|
Total liabilities
|
$
|
(38,179
|
)
|
$
|
(8,984
|
)
|
$
|
(47,163
|
)
|
|||
|
Change in carrying value of assets and liabilities, net
|
$
|
3,588
|
$
|
(12,423
|
)
|
$
|
(8,835
|
)
|
||||
The following provides details of the distributions declared, net during the period from February 15, 2019 (inception) through June 30, 2019 ($ in thousands):
|
Distributions declared
|
$
|
(44,697
|
)
|
|
|
Distributions reversed
|
11
|
|||
|
Distributions declared, net
|
$
|
(44,686
|
)
|
F - 15
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
| 8) |
Credit Agreements
|
Revolving Line of Credit
WB Propco, LLC, a subsidiary of the Wind-Down Entity had a revolving line of credit (LOC) with a financial institution which matured on May 1, 2020. The Wind-Down Entity was a guarantor under the
LOC. Outstanding borrowings bore interest at the prime rate, provided however, that the interest rate could never be lower than 5.25% per annum. The LOC was not renewed or extended.
On June 19, 2020, two wholly-owned subsidiaries of the Wind-Down Entity entered into a $25,000,000 revolving line of credit (New LOC) with a different financial institution. The New LOC may be
increased to up to $30,000,000 with the pledge of one or more additional properties and lender approval. The New LOC matures on June 19, 2022 but may be extended for one additional year thereafter. The New LOC requires the borrowers to establish an
interest reserve of $1,750,000 (Note 4), which is to be used to pay the potential monthly interest payments. Outstanding borrowings bear interest at a fixed rate of 3.50% per annum. Indebtedness under the New LOC is secured by a deed of trust on
one property, the personal property associated therewith and the interest reserve. The Wind-Down Entity is the guarantor of the New LOC. The Company is required to keep $20,000,000 on deposit with the lender in order to avoid a non-compliance fee
of 2% of the shortfall in the required deposit and are required to comply with various covenants.
PPP Loan
On April 20, 2020, the Wind-Down Entity obtained unsecured credit in the form of a loan under the federal government’s Paycheck Protection Program (PPP) in the amount of $324,700. The loan bears
interest at a rate of 1.00% per annum. The loan matures on April 20, 2022. The Wind-Down Entity may apply for forgiveness of the amount due on the loan in an amount equal to the sum of the qualifying costs incurred by the Wind-Down Entity during
the 24-week period beginning on the date of first disbursement of the loan (April 20, 2020). No payments are due on the loan for six months from the date of first disbursement of the loan (Deferment Period). Beginning on the tenth day of the first
month after the expiration of the Deferment Period, the then outstanding balance of the loan must be repaid in equal monthly payments of principal and interest, to be fully amortized over the remaining term of the loan.
The Company expects to have 100% of the loan balance forgiven and therefore no amounts are accrued under the liquidation basis of accounting as of June 30, 2020.
F - 16
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
| 9) |
Beneficial Interests
|
The following table summarizes the Liquidation Trust Interests (rounded) for the year ended June 30, 2020 and the period from February 15, 2019 (inception) through June
30, 2019:
|
Year ended June 30, 2020
|
Period from February 15, 2019
(inception) through June 30, 2019
|
|||||||||||||||
|
Liquidation Trust Interests
|
Class A
|
Class B
|
Class A
|
Class B
|
||||||||||||
|
Outstanding at beginning of period
|
11,433,623
|
655,261
|
11,284,423
|
651,019
|
||||||||||||
|
Allowed claims
|
88,549
|
21,334
|
144,654
|
4,123
|
||||||||||||
|
5% enhancement for certain allowed claims
|
459
|
5
|
4,546
|
119
|
||||||||||||
|
Settlement by issuing Liquidation Trust Interests
|
895
|
-
|
-
|
-
|
||||||||||||
|
Settlement of claims by reducing Liquidation Trust Interests
|
(5,210
|
)
|
(1,042
|
)
|
-
|
-
|
||||||||||
|
Duplicate claim allowed in error
|
(84
|
)
|
-
|
-
|
-
|
|||||||||||
|
Outstanding at end of period
|
11,518,232
|
675,558
|
11,433,623
|
655,261
|
||||||||||||
F - 17
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
At the Plan Effective Date, certain claims were disputed. As the claims are resolved, additional Class A and (if applicable) Class B Interests are issued on account of allowed claims and no Class A
or Class B Interests are issued on account of disallowed claims. The following table summarizes the Trust’s unresolved claims against the Debtors as they relate to Liquidation Trust Interests (rounded) for the year ended June 30, 2020 and the
period from February 15, 2019 (inception) through June 30, 2019:
|
Year ended June 30, 2020
|
Period from February 15, 2019
(inception) through June 30, 2019
|
|||||||||||||||
|
Liquidation Trust Interests
|
Class A
|
Class B
|
Class A
|
Class B
|
||||||||||||
|
Reserved for unresolved claims at beginning of period
|
482,734
|
34,697
|
634,733
|
38,850
|
||||||||||||
|
Allowed claims
|
(88,549
|
)
|
(21,334
|
)
|
(144,654
|
)
|
(4,123
|
)
|
||||||||
|
Disallowed claims
|
(200,626
|
)
|
(6,245
|
)
|
(7,345
|
)
|
(30
|
)
|
||||||||
|
Reserved for unresolved claims at end of period
|
193,559
|
7,118
|
482,734
|
34,697
|
||||||||||||
| 10) |
Distributions
|
The Plan provides for a distribution waterfall that specifies the priority and manner of distribution of available cash. Distributions are to be made (a) to the Class A Interests until they have
received distributions of $75.00 per Class A Interest; thereafter (b) to the Class B Interests until they have received distributions of $75.00 per Class B Interest; thereafter (c) to each Liquidation Trust Interest (whether a Class A or Class B
Interest) until the aggregate of all distributions made pursuant to this clause equals an amount equivalent to interest, at a per annum fixed rate of 10%, compounded annually, accrued on the aggregate principal amount of all Net Note Claims,
Allowed General Unsecured Claims and Net Unit Claims, all as defined, treating each distribution pursuant to (a) and (b) above as reductions of such principal amount; and thereafter (d) to the holders of Allowed Subordinated Claims, as defined,
until such claims are paid in full, including interest, at a per annum fixed rate of 10% or such higher rate as may be agreed to, as provided for in the Plan, compounded annually, accrued on the principal amount of each Allowed Subordinated Claim,
as defined.
On March 15, 2019, a distribution in the amount of approximately $44,697,000 was declared which represented $3.75 per Class A Interest. The distribution included (i) a cash distribution on account
of then-allowed claims in the amount of approximately $42,313,000 which was paid on March 26, 2019, and (ii) a deposit of approximately $2,384,000 into a restricted cash account, which was made on March 26, 2019, on account of distributions
payable for Class A Interests that may be issued in the future upon the allowance of unresolved claims.
On January 2, 2020, a distribution in the amount of approximately $53,426,000 was declared which represented $4.50 per Class A Interest. The distribution included (i) a cash distribution on account
of then-allowed claims in the amount of approximately $51,188,000 which was paid on January 10, 2020, and (ii) a deposit of approximately $2,238,000 into a restricted cash account, which was made on January 10, 2020, (a)
payable for Class A Interests that may be issued in the future upon the allowance of unresolved claims, (b) in respect to recently allowed claims (c) to holders of Class A Interests who failed to cash distribution checks mailed in respect of the
initial distribution (d) that were withheld due to pending avoidance actions and (e) that the Trust is waiting for further beneficiary information.
On March 31, 2020, a distribution in the amount of approximately $25,000,000 was declared which represented $2.12 per Class A Interest. The distribution included (i) a
cash distribution on account of then-allowed claims in the amount of approximately $24,193,000 which was paid on April 10, 2020, and (ii) a deposit of approximately $807,000 into a restricted cash account, which was made on April 10, 2020, (a) payable for Class A Interests that may be issued in the future upon the allowance of unresolved claims, (b) in respect to recently allowed claims (c) to holders of Class A Interests who failed to cash distribution
checks mailed in respect of prior distributions (d) that were withheld due to pending avoidance actions and (e) that the Trust is waiting for further beneficiary information.
F - 18
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
During the year ended June 30, 2020 and the period from February 15, 2019 (inception) through June 30, 2019, as (a) claims were resolved, (b) claims were recently allowed, (c) addresses for holders
of uncashed distribution checks were obtained, (d) pending avoidance actions were resolved and (e) further beneficiary information was received, distributions of approximately $1,000,000 and $1,166,000, respectively, were paid from the restricted
cash account to holders of Class A Interests that were issued on account of claims that became allowed during such periods.
During the year ended June 30, 2020 and the period from February 15, 2019 (inception) through June 30, 2019, as a result of claims being disallowed, approximately $1,644,000 and $826,000 were
released from the restricted cash account and distributions payable were reduced by the same amount.
During the year ended June 30, 2020 and the period from February 15, 2019 (inception) through June 30, 2019, approximately $148,000 and $0 were received from the Company’s transfer agent and others
relating to distribution checks that were returned or not cashed. This amount was deposited into the restricted cash account and distributions payable were increased by the same amount.
| 11) |
Related Party Transactions
|
Terry Goebel, a member of the Trust Supervisory Board, is president and a principal owner of G3 Group LA, a construction firm specializing in the development of high-end luxury residences. G3 Group
LA is owned by Terry Goebel and his son Kelly Goebel. As of June 30, 2020, the Company was under contract with G3 Group LA for the development of one single-family home in the Los Angeles area. One additional construction contract was assumed by
the buyer of a single-family home in November 2019. As of June 30, 2020 and 2019, the remaining amounts payable under these contracts was approximately $8,133,000 and $16,689,000, respectively. During the year ended June 30, 2020 and the period
from February 15, 2019 (inception) through June 30, 2019, approximately $10,123,000 and $4,260,000, respectively, were paid by the Company to G3 Group of LA related to these contracts.
The liquidation trustee of the Trust is entitled to receive 5% of the total gross amount recovered by the Trust from the pursuit of Trust claims and Causes of Action. During the year ended June
30, 2020 and the period from February 15, 2019 (inception) through June 30, 2019, approximately $251,000 and $82,000 was accrued as amounts due to the liquidation trustee, respectively. As of June 30, 2020 and 2019,
approximately $119,000 and $82,000, respectively, was payable to the liquidation trustee. These amounts are included in accounts payable and accrued expenses in the accompanying consolidated statement of net assets in liquidation. During the year
ended June 30, 2020 and the period from February 15, 2019 (inception) through June 30, 2019, approximately $214,000 and $0, respectively, were paid to the liquidation trustee.
In November 2019, the Trust entered into an arrangement with Akerman LLP, a law firm based in Miami, Florida of which the liquidation trustee is a partner, for the provision, at the option of the
Trust on an as-needed basis, of e-discovery and related litigation support services in connection with the Trust’s prosecution of the Causes of Action. Under the arrangement, the Trust is charged for the services at scheduled rates per task which,
depending on specific task, include flat rates, rates based on volume of data processed, rates based on the number of data users, the hourly rates of Akerman LLP personnel, or other rates. As of June 30, 2020, approximately $592,000 was paid
related to these services and there are no outstanding payables as of June 30, 2020.
F - 19
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
The executive officers of the Wind-Down Entity are entitled to a discretionary bonus based on the Wind-Down Entity achieving certain specified cumulative amounts of distributions to the Trust.
Based on the carrying amounts of the net assets in liquidation included in the accompanying consolidated statement of net assets in liquidation, approximately $3,840,000 and $2,815,000 were accrued as of June 30, 2020 and 2019, respectively, as the
estimated amount of the bonus (including associated payroll taxes). This amount is included in the payroll and payroll related costs portion of accrued liquidation costs in the accompanying consolidated statement of net assets in liquidation.
During the year ended June 30, 2020 and the period from February 15, 2019 (inception) through June 30, 2019, approximately $831,000 and $0, respectively, were paid related to the bonuses.
| 12) |
Commitments and Contingencies
|
As of June 30, 2020, the Company had construction contracts under which approximately $37,730,000 was unpaid.
The Company has a lease for its office space that expires on August 31, 2021. The Company has one three-month option to extend the lease. The amount of rent paid, including common area maintenance
and parking charges, during the year ended June 30, 2020 and the period from February 15, 2019 (inception) through June 30, 2019 was approximately $277,000 and $90,000, respectively.
The Company is not presently the defendant in any material litigation nor, to the Company’s knowledge, is any material litigation threatened against the Company.
The Company is not aware of any environmental liabilities that it believes would have a material adverse effect on its net assets in liquidation.
| 13) |
Subsequent Events
|
The Company evaluates subsequent events up until the date the unaudited consolidated financial statements are issued.
On July 13, 2020, a distribution in the amount of approximately $29,934,000 was declared which represented $2.56 per Class A Interest. The distribution included (i) a cash distribution on account
of then-allowed claims in the amount of approximately $29,201,000 which was paid on July 16, 2020, and (ii) a deposit of approximately $733,000 into a restricted cash account, which was made on August 25, 2020, (a) payable for Class A Interests
that may be issued in the future upon the allowance of unresolved claims, (b) in respect to recently allowed claims (c) to holders of Class A Interests who failed to cash distribution checks mailed in respect of prior distributions (d) that were
withheld due to pending avoidance actions and (e) that the Trust is waiting for further beneficiary information.
F - 20
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
The following table summarizes the Liquidation Trust Interests for the period from June 30, 2020 through September 25, 2020:
|
Liquidation Trust Interests
|
Class A
|
Class B
|
||||||
|
Outstanding at June 30, 2020
|
11,518,232
|
675,558
|
||||||
|
Allowed during the period
|
3,319
|
1,133 | ||||||
|
5% enhancement for certain allowed claims
|
166
|
56
|
||||||
|
Settlement of claims by reducing Liquidation Trust Interests
|
(2,267
|
)
|
(435
|
)
|
||||
|
Outstanding at September 25, 2020
|
11,519,450
|
676,312
|
||||||
The following table summarizes unresolved claims against the Debtors as they relate to Liquidation Trust Interests (rounded) for the period from June 30, 2020 through September 25, 2020:
|
Liquidation Trust Interests
|
Class A
|
Class B
|
||||||
|
Outstanding at June 30, 2020
|
193,559
|
7,118
|
||||||
|
Allowed during the period
|
(3,319
|
)
|
(1,133
|
)
|
||||
|
5% enhancement for certain allowed claims
|
(16 | ) |
- |
|||||
|
Disallowed during the period
|
(7,115
|
)
|
(342
|
)
|
||||
|
Outstanding at September 25, 2020
|
183,109
|
5,643
|
||||||
During the period from July 1, 2020 through September 25, 2020, as claims were allowed, distributions of approximately $32,000 were paid from the restricted cash account on account of Class A
Interests that were issued. As a result of claims being disallowed, approximately $90,000 was released from the restricted cash account and distributions payable was reduced by the same amount.
During the period from July 1, 2020 through September 25, 2020, the Company sold four single-family homes and four other properties and realized net proceeds of approximately $33,433,000. One of
the single-family homes was under construction and the buyer assumed remaining obligations of approximately $10,000,000 to complete construction of the property.
During the period from July 1, 2020 through September 25, 2020, the Trust recorded approximately $6,377,000 from the settlement of Causes of Action. The Company recorded approximately $352,000 as
the amount due to the liquidation trustee on account of such settlements.
F - 21
|
PART I. FINANCIAL INFORMATION (CONTINUED)
Item 1. Financial Statements (Continued)
Woodbridge Liquidation Trust and Subsidiaries
Notes to Consolidated Financial Statements
As of June 30, 2020 and 2019
|
The Trust entered into a resolution agreement with the United States Department of Justice which provided that the Trust would receive the assets forfeited by, among others, Robert and Jeri
Shapiro. The agreement provides for the release of specified forfeited assets by the United States Department of Justice to the Trust, and for the Trust to liquidate those assets and distribute the net sale proceeds to “Qualifying Victims,” which
include the vast majority of Trust beneficiaries—specifically, all former holders of Class 3 and 5 claims and their permitted assigns—but do not include former holders of Class 4 claims. The Bankruptcy Court approved this settlement on September
17, 2020. The agreement remains subject to approval by the United States District Court.
On September 24, 2020, the estimated dollar amount of G3's contract was increased by approximately $3,600,000.
F - 22
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized, this 25th day of September, 2020.
|
By:
|
/s/ Michael I. Goldberg
|
|
|
Name:
|
Michael I. Goldberg
|
|
|
Title:
|
Trustee
|
Exhibit 10.4
EMPLOYMENT AGREEMENT
This First Amendment to Amended and Restated Employment Agreement (as hereinafter amended from time to time, this “Amendment”) is made and entered into this 24th
day of September, 2020 by and between WOODBRIDGE WIND-DOWN ENTITY LLC, a Delaware limited liability company (the “Company”), and FREDERICK CHIN (the “Employee”).
RECITALS
The Company and Employee are party to that certain Amended and Restated Employment Agreement, dated as of July 31, 2019 (as amended, amended and restated, supplemented or otherwise modified from time
to time, the “Employment Agreement”).
The Company and the Employee desire to amend the Employment Agreement to extend the term of the Employee’s employment on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged,
the Company and the Employee (individually a “Party” and together the “Parties”), intending to be legally bound, agree as follows:
AGREEMENT
Section 1. Definitions. Capitalized terms used but not otherwise define herein shall have the respective meanings assigned thereto in the Employment Agreement.
Section 2. Amendments to the Employment Agreement. The Parties hereby agree to amend the Employment Agreement as follows:
(a) Section 1 of the Employment Agreement is hereby amended by deleting the words “two (2) years and six (6) months” in the first sentence of such Section and
substituting in lieu thereof the words “three (3) years”.
(b) Section 4 of the Employment Agreement is hereby amended by adding a new subsection (c) as follows:
“(c) 2021 Discretionary Bonus. If the Employee is still employed by the Company on December 31, 2021, the Employee shall be considered by the Board for a discretionary bonus with respect to 2021.
Any discretionary bonus for 2021 shall be paid on or before January 31, 2022. Any discretionary bonus will be considered by the Board in its sole and absolute discretion. The Company acknowledges and agrees that the payment of a discretionary
bonus, if any, to Employee pursuant to this Section 4(c) shall not affect or reduce the amount of any Wind Down Bonus, Period 2 Bonus or Period 3 Bonus paid or to become payable to Employee.”
Section 3. Miscellaneous.
(a) Governing Law. This Amendment shall be subject to and governed by the laws of the State of California applicable to contracts made and to
be performed therein, without regard to conflict-of-laws principles thereof.
(b) Jurisdiction. Any action to enforce any of the provisions of this Amendment shall be brought in a court of the State of California
located in Los Angeles County or in a Federal court located in Los Angeles, California. The parties consent to the jurisdiction of such courts and to the service of process in any manner provided by California law. Each Party irrevocably waives any
objection that it may now or hereafter have to the laying of the venue of any such suit, action, or proceeding brought in such court and any claim that such suit, action, or proceeding brought in such court has been brought in an inconvenient forum
and agrees that service of process in accordance with the foregoing sentences shall be deemed in every respect effective and valid personal service of process upon such Party.
(c) Effect of Amendment. Except as expressly amended hereby, the Employment Agreement shall continue in full force and effect. Any
references to the Employment Agreement (whether in the Employment Agreement or any agreement, document, document or certificate contemplated thereby and/or executed in connection therewith) are hereby amended to mean the Employment Agreement as
amended by this Amendment.
(d) Counterparts. This Amendment may be signed in counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment to Amended and Restated Employment Agreement on the day and year first above written.
|
WOODBRIDGE WIND-DOWN ENTITY LLC
|
|||
|
By:
|
/s/ M. Freddie Reiss
|
||
|
Name:
|
M. Freddie Reiss
|
||
|
Title:
|
Manager
|
||
|
|
EMPLOYEE
|
||
|
Signature:
|
/s/ Frederick Chin
|
||
|
Name:
|
Frederick Chin
|
||
Exhibit 10.7
This First Amendment to Employment Agreement (as hereinafter amended from time to time, this “Amendment”) is made and entered into this 24th day
of September, 2020 by and between WOODBRIDGE WIND-DOWN ENTITY LLC, a Delaware limited liability company (the “Company”), and MARION W. FONG (the “Employee”).
RECITALS
The Company and Employee are party to that certain Employment Agreement, dated as of November 12, 2019 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Employment Agreement”).
The Company and the Employee desire to amend the Employment Agreement on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged,
the Company and the Employee (individually a “Party” and together the “Parties”), intending to be legally bound, agree as follows:
AGREEMENT
Section 1. Definitions.
Capitalized terms used but not otherwise define herein shall have the respective meanings assigned thereto in the Employment Agreement.
Section 2. Amendments to the Employment Agreement. The Parties hereby agree to amend the Employment Agreement by deleting Section 4(b) of the
Employment Agreement in its entirety and replacing it with the following:
“(b) Discretionary Bonuses. If Employee is still employed by the Company on December 31, 2020, the Employee shall be considered by the Board for a
discretionary bonus with respect to 2020, which discretionary bonus shall not exceed 25% of the Employee’s Base Salary for 2020. Any discretionary bonus for 2020 shall be paid on or before January 31, 2021. If Employee is still employed by the
Company on December 31, 2021, the Employee shall be considered by the Board for a discretionary bonus with respect to 2021, which discretionary bonus shall not exceed 25% of the Employee’s Base Salary for 2021. Any discretionary bonus for 2021
shall be paid on or before January 31, 2022. If the Employee is still employed by the Company at the end of the Wind-Down Period and the Wind-Down Period ends after January 1, 2022, the Employee shall be considered by the Board for a discretionary
bonus with respect to the period from January 1, 2022 to the end of the Wind-Down Period, which discretionary bonus shall not exceed 25% of the Employee’s Base Salary for 2022. Any such discretionary bonus shall be paid within thirty (30) days of
Dissolution. Discretionary bonuses will be considered by the Board in its sole and absolute discretion.”
Section 3. Miscellaneous.
(a) Governing Law. This Amendment shall be subject to and governed by the laws of the State of California applicable to contracts made and to be performed therein, without regard to
conflict-of-laws principles thereof.
(b) Jurisdiction. Any action to enforce any of the provisions of this Amendment shall be brought in a court of the State of California located in Los Angeles County or in a Federal
court located in Los Angeles, California. The parties consent to the jurisdiction of such courts and to the service of process in any manner provided by California law. Each Party irrevocably waives any objection that it may now or hereafter have
to the laying of the venue of any such suit, action, or proceeding brought in such court and any claim that such suit, action, or proceeding brought in such court has been brought in an inconvenient forum and agrees that service of process in
accordance with the foregoing sentences shall be deemed in every respect effective and valid personal service of process upon such Party.
(c) Effect of Amendment. Except as expressly amended hereby, the Employment Agreement shall continue in full force and effect. Any references to the Employment Agreement (whether in
the Employment Agreement or any agreement, document, document or certificate contemplated thereby and/or executed in connection therewith) are hereby amended to mean the Employment Agreement as amended by this Amendment.
(d) Counterparts. This Amendment may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same
instrument.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment to Employment Agreement on the day and year first above written.
|
WOODBRIDGE WIND-DOWN ENTITY LLC
|
|||
|
By:
|
/s/ Frederick Chin
|
||
|
Name:
|
Frederick Chin
|
||
|
Title:
|
Chief Executive Officer
|
||
|
|
EMPLOYEE
|
||
|
Signature:
|
/s/ Marion W. Fong
|
||
|
Name:
|
Marion W. Fong
|
||
Exhibit 10.10
This First Amendment to Employment Agreement (as hereinafter amended from time to time, this “Amendment”) is made and entered into this 24th day of
September, 2020 by and between WOODBRIDGE WIND-DOWN ENTITY LLC, a Delaware limited liability company (the “Company”), and DAVID MARK KEMPER II (the “Employee”).
RECITALS
The Company and Employee are party to that certain Employment Agreement, dated as of November 12, 2019 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Employment Agreement”).
The Company and the Employee desire to amend the Employment Agreement on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged,
the Company and the Employee (individually a “Party” and together the “Parties”), intending to be legally bound, agree as follows:
AGREEMENT
Section 1. Definitions. Capitalized terms used but not otherwise define herein shall have the respective meanings assigned thereto in the
Employment Agreement.
Section 2. Amendments to the Employment Agreement. The Parties hereby agree to amend the Employment Agreement by deleting Section 4(b) of the
Employment Agreement in its entirety and replacing it with the following:
“(b) Discretionary Bonuses. If Employee is still employed by the Company on December 31, 2020, the Employee shall be considered by the Board for a
discretionary bonus with respect to 2020, which discretionary bonus shall not exceed 25% of the Employee’s Base Salary for 2020. Any discretionary bonus for 2020 shall be paid on or before January 31, 2021. If Employee is still employed by the
Company on December 31, 2021, the Employee shall be considered by the Board for a discretionary bonus with respect to 2021, which discretionary bonus shall not exceed 25% of the Employee’s Base Salary for 2021. Any discretionary bonus for 2021 shall
be paid on or before January 31, 2022. If the Employee is still employed by the Company at the end of the Wind-Down Period and the Wind-Down Period ends after January 1, 2022, the Employee shall be considered by the Board for a discretionary bonus
with respect to the period from January 1, 2022 to the end of the Wind-Down Period, which discretionary bonus shall not exceed 25% of the Employee’s Base Salary for 2022. Any such discretionary bonus shall be paid within thirty (30) days of
Dissolution. Discretionary bonuses will be considered by the Board in its sole and absolute discretion.”
Section 3. Miscellaneous.
(a) Governing Law. This Amendment shall be subject to and governed by the laws of the State of California applicable to contracts made and to
be performed therein, without regard to conflict-of-laws principles thereof.
(b) Jurisdiction. Any action to enforce any of the provisions of this Amendment shall be brought in a court of the State of California located
in Los Angeles County or in a Federal court located in Los Angeles, California. The parties consent to the jurisdiction of such courts and to the service of process in any manner provided by California law. Each Party irrevocably waives any
objection that it may now or hereafter have to the laying of the venue of any such suit, action, or proceeding brought in such court and any claim that such suit, action, or proceeding brought in such court has been brought in an inconvenient forum
and agrees that service of process in accordance with the foregoing sentences shall be deemed in every respect effective and valid personal service of process upon such Party.
(c) Effect of Amendment. Except as expressly amended hereby, the Employment Agreement shall continue in full force and effect. Any references
to the Employment Agreement (whether in the Employment Agreement or any agreement, document, document or certificate contemplated thereby and/or executed in connection therewith) are hereby amended to mean the Employment Agreement as amended by this
Amendment.
(d) Counterparts. This Amendment may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment to Employment Agreement on the day and year first above written.
|
WOODBRIDGE WIND-DOWN ENTITY LLC
|
|||
|
By:
|
/s/ Frederick Chin
|
||
|
Name:
|
Frederick Chin
|
||
|
Title:
|
Chief Executive Officer
|
||
|
|
EMPLOYEE
|
||
|
Signature:
|
/s/ David Mark Kemper II
|
||
|
Name:
|
David Mark Kemper II
|
||
Exhibit 10.12
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
|
In re:
|
|
Chapter 11 | |
|
|
|
|
|
|
WOODBRIDGE GROUP OF COMPANIES, LLC,
et al.,1
|
|
Case No. 17-12560 (BLS) | |
|
|
|
(Jointly Administered)
|
|
|
Remaining Debtors.
|
|
|
|
|
Ref. Doc. No. 4521
|
ORDER, PURSUANT TO SECTION 105(a) OF THE BANKRUPTCY CODE
AND BANKRUPTCY RULE 9019, AUTHORIZING AND APPROVING ENTRY INTO
A SETTLEMENT WITH THE UNITED STATES OF AMERICA
Upon the Motion of Woodbridge Liquidation Trust and Woodbridge Wind-Down Entity for Entry of an Order, Pursuant to Section 105(a) of the Bankruptcy Code and Bankruptcy Rule 9019,
Authorizing and Approving Entry into a Settlement with the United States of America (the “Motion”)2 filed by the Woodbridge Liquidation Trust (the “Trust”), formed pursuant to the confirmed and effective First Amended Joint Chapter 11 Plan of Liquidation of Woodbridge Group of Companies, LLC and its Affiliated Debtors [D.I. 2397] (the “Plan”) in the jointly-administered chapter 11 bankruptcy cases (the “Chapter
11 Cases”) of Woodbridge Group of Companies, LLC and its affiliated debtors and debtors in possession (collectively, the “Debtors”); and this Court having found that it has jurisdiction to consider the Motion and the relief requested
therein pursuant to 28 U.S.C. §§ 157 and 1334 and the Amended Standing Order of Reference from the United States District Court for the District of Delaware, dated February 29, 2012; and this Court having
found that venue of these cases and the Motion in this district is proper pursuant to 28 U.S.C. §§ 1408 and 1409; and this Court having found that this matter is a core proceeding pursuant to 28 U.S.C. § 157(b); and this Court having determined that
it may enter a final order consistent with Article III of the United States Constitution; and it appearing that notice of the Motion has been given as set forth in the Motion and that such notice is adequate and no other or further notice need be
given; and this Court having found and determined that the relief sought in the Motion is in the best interest of the Trust and its beneficiaries; and that the legal and factual bases set forth in the Motion establish just cause for the relief
granted herein; and after due deliberation and sufficient cause appearing therefor,
| 1 |
The Remaining Debtors and the last four digits of their respective federal tax identification numbers are as follows: Woodbridge Group of Companies, LLC (3603) and Woodbridge Mortgage Investment Fund 1, LLC (0172). The Remaining Debtors’
mailing address is 14140 Ventura Boulevard #302, Sherman Oaks, California 91423.
|
|
2
|
Capitalized terms used, but not otherwise defined herein, have the meaning given to them in the Motion.
|
IT IS HEREBY ORDERED THAT:
1. The Motion is GRANTED as set forth herein.
2. Pursuant to section 105(a) of the Bankruptcy Code and Bankruptcy Rule 9019, the Trust is authorized to enter into the Stipulation and Settlement Agreement (the “Agreement”),
in substantially the form attached hereto as Exhibit 1, which Agreement is authorized and approved in its entirety.
3. Immediately upon entry of this Order, the Trust is authorized and empowered to take any and all actions necessary or appropriate to consummate, carry out, effectuate, or otherwise enforce the terms,
conditions, and provisions of the Agreement.
4. The Court shall retain jurisdiction and power over any and all matters arising from or related to the interpretation or implementation of this Order and the Settlement Agreement.
 |
|
|
Dated: September 17th, 2020
|
BRENDAN L. SHANNON UNITED STATES BANKRUPTCY JUDGE
|
| Wilmington, Delaware |
|
EXHIBIT 1 TO ORDER
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 19-20178-CR-ALTONAGA
|
UNITED STATES OF AMERICA
|
|
|
|
|
|
v.
|
|
|
ROBERT SHAPIRO,
|
|
|
Defendant.
|
|
| / | |
| WOODBRIDGE LIQUIDATION TRUST, | |
|
Third-Party Petitioner.
|
|
| / |
STIPULATION AND SETTLEMENT AGREEMENT
The United States of America (the “United States”) and Petitioner Woodbridge Liquidation Trust, by and through its trustee, Michael I. Goldberg, (“Petitioner” or the “Liquidation Trust”) (together,
the “Parties”) stipulate and agree, subject to the Court’s approval, in the above-captioned matter as follows:
|
I.
|
RECITALS
|
| A. |
Instant Criminal Case and Forfeiture Proceedings
|
1. From in or around July 2012, through in or around December 2017, in the Southern District of Florida and elsewhere, Defendant Robert Shapiro (the “Defendant”) and his co- conspirators
engaged in a conspiracy to commit mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343 and 1349, to defraud investors and obtain money and property by materially false and fraudulent pretenses, representations, and promises in connection with
the sale of promissory notes and units, by: (a) soliciting and causing others to solicit millions of dollars in investor funds under false and fraudulent pretenses, representations and promises; (b) intentionally failing to utilize investor funds in
the manner that they, their co-conspirators and others had promised; (c) misappropriating and converting investor funds for their own benefit and the benefit of others without the knowledge and authorization of the investors; and (d) making false
statements and engaging in other fraudulent activities designed to conceal the commission of the offense. See Shapiro’s Stipulated Factual Proffer 1-2, ECF No. 140.
2. The Defendant and his co-conspirators fraudulently convinced thousands of investors to invest more than $1.29 billion in the following entities (collectively, referred to as the
“Woodbridge Entities”):
(i) Woodbridge Group of Companies, LLC (d/b/a Woodbridge Wealth) (“Woodbridge Group of Companies”);
(ii) Woodbridge Mortgage Investment Fund 1, LLC; Woodbridge Mortgage Investment Fund 2, LLC, Woodbridge Mortgage Investment Fund 3, LLC, Woodbridge Mortgage Investment Fund
3A, LLC, Woodbridge Mortgage Investment Fund 4, LLC, Woodbridge Commercial Bridge Loan Fund 1, LLC, and Woodbridge Commercial Bridge Loan Fund 2, LLC (the “Woodbridge Fund Companies”);
(iii) WMF Management, LLC (“WMF”);
(iv) Woodbridge Structured Funding, LLC (a/k/a Woodbridge Structured Funding of Florida, LLC) (“WSF”);
(v) Woodbridge Realty of Colorado (“Woodbridge Realty”);
(vi) Mercer Vine, Inc. (“Mercer Vine”);
(vii) Riverdale Funding, LLC (“Riverdale”); and
(viii) RS Protective Trust (“RS Trust”), which was the holding trust for the assets of Woodbridge, WMF, WSF, and more than 270 limited liability companies (the “RS Trust
LLCs”).
See id. at 2-3 & n.1-8, 7.
3. On April 4, 2019, a federal grand jury returned an Indictment charging the Defendant, inter alia, in Count 1 with conspiracy to commit mail and wire fraud in
violation of 18 U.S.C. §§ 1341, 1343, and 1349, and in Count 10 with evasion of payment of federal income taxes. See Indictment, ECF No. 3.
2
4. The Indictment contained forfeiture allegations, which alleged that upon a conviction of a violation of 18 U.S.C. §§ 1341, 1343 and/or 1349, the Defendant shall forfeit to the United States of America, any
property, real or personal, which constitutes or is derived from proceeds traceable to such violation, pursuant to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c). See id. at 19. The Indictment alleged that
property directly subject to forfeiture includes, but is not limited to (the “Directly Forfeitable Assets”):
(i) All assets on deposit in account number 4040774877 at Alpine Bank, held in the name of Carbondale Basalt Owners LLC;
(ii) All assets on deposit in account number 8900003424 at Alpine Bank, held in the name of Davana Sherman Oaks Owners LLC;
(iii) All assets on deposit in account number 8970196989 at Alpine Bank, held in the name of Midland Loop Enterprises LLC;
(iv) All assets on deposit in account number 36044043514 at Capital One Bank, held in the name of Jeri Shapiro;
(v) All assets on deposit in account number 80-27009771 at East West Bank, held in the name of Davana Primrose Ventures LLC;
(vi) All assets on deposit in account number 20-27007984 at East West Bank, held in the name of Jeri L Shapiro;
(vii) All assets on deposit in account number 80-27010068 at East West Bank, held in the name of Reliance Marketing Solutions LLC;
(viii) All assets on deposit in account number 80-27010381 at East West Bank, held in the name of Settlement Depot LLC;
(ix) All assets on deposit in account number X96-267462 at Fidelity Cash Management, held in the name of Jeri Shapiro;
(x) All assets on deposit in account number 197148628 at Regions Bank, held in the name of Commercial Bridge Lenders LLC;
(xi) All assets on deposit in account number 2010131932 at Timberline Bank, held in the name of Golden Mesa Ventures LLC;
(xii) All assets on deposit in account number 2010131940 at Timberline Bank, held in the name of Golden Primrose Ventures LLC;
(xiii) All assets on deposit in account number 157514954443 at US Bank, held in the name of Jeri Shapiro;
(xiv) One (1) 18-karat, white gold, bangle bracelet, with 550 round diamonds (12.50 carats) and 1,434 black diamonds (24.92 carats);
(xv) One (1) pair of 18-karat, white gold, drop earrings, with 1,344 round-cut diamonds (13.80 carats);
(xvi) One (1) pair of 18-karat, white gold, button earrings, with 162 round diamonds (13.89 carats);
(xvii) One (1) pair of 18-karat, white gold, drop earrings with 99 yellow sapphires (1.10 carats), 117 tsavorites (1.18 carats), 125 blue sapphires (1.38 carats), 124 blue
diamonds (1.36 carats), 120 amethysts (1.24 carats), 120 pink sapphires (1.18 carats), and 125 orange sapphires (1.26 carats);
(xviii) One (1) pair of 18-karat, white gold, drop earrings with 22 emeralds (35.53 carats) and round-cut diamonds (7.18 carats);
3
(xix) One (1) pair of 18-karat, rose gold, golden pearl earrings with round-cut diamonds (.39 carat);
(xx) One (1) pair of 18-karat, rose gold, drop earrings with round-cut diamonds (.62 carat);
(xxi) One (1) pair of 18-karat, rose gold, drop earrings with rubies (38.90 carats);
(xxii) One (1) emerald and diamond ring;
(xxiii) One (1) platinum ring with certified Colombia emerald-cut emerald (9.54 carats), eight trapezoid-cut diamonds (2.09 carats), and 166 round-cut diamonds (1.42 carats);
(xxiv) One (1) pair of 18-karat, white gold earrings with multi-color pearls (11.8- 15.5mm) and round-cut diamonds (.98 carat);
(xxv) One (1) platinum ring with oval-cut ruby (10.19 carats), two trapezoid diamonds (1.19 carats), and 70 round-cut diamonds (2.08 carats);1
(xxvi) One (1) 18-karat, rose gold, bangle bracelet with round diamonds (1.50 carats);
(xxvii) One (1) 18-karat, white gold, bangle bracelet with round diamonds (1.5 carats);
(xxviii) One (1) pair of 14-karat, white gold, drop earrings with two black diamonds (61.81 carats), two icy grey diamonds (23.92 carats), two rose-cut diamonds (.36 carat), and
266 round diamonds (1.63 carats);
(xxix) One (1) 18-karat, yellow gold ring with 13 radiant-cut diamonds (13.83 carats); and
(xxx) One (1) 1969 Mercury convertible, bearing Vehicle Identification Number (“VIN”) 9F92M565911.
See id. at 20-23. The Indictment also advised that substitute property is subject to forfeiture, pursuant to
21 U.S.C. § 853(p). See id. at 23.
5. On April 5, 2019, the Court entered a Protective Order for Assets Subject to Forfeiture, enjoining and restraining the Directly Forfeitable Assets in order to ensure their availability
for criminal forfeiture. See Protective Order, ECF No. 8.
6. On August 4, 2019, the Court accepted the Defendant’s guilty plea to Counts 1 and 10 of the Indictment. See Minute Entry, ECF No. 138;
Shapiro’s Plea Agreement, ECF No. 139; Shapiro’s Stipulated Factual Proffer, ECF No. 140. As part of his guilty plea, the Defendant agreed to the forfeiture of the Directly Forfeitable Assets and the following substitute property (the “Substitute
Assets I”):
1 The Indictment contained a scrivener’s error indicating that the oval-cut ruby was 10.91 carats. The correct weight is reflected above, and is 10.19 carats.
4
(i) The wine collection stored at 4030 Longridge Avenue, Sherman Oaks, CA;
(ii) A cashier’s check for $250,000 from East West Bank;
(iii) A mortgage payment made out of East West Bank of $399,867.67;
(iv) all assets on deposit in account number 226157004 at Regions Bank, held in the name of Lionshare Lending LLC; and
(v) Any outstanding balance of credits in JP Morgan Chase and Citicard credit cards.
See Shapiro’s Plea Agreement 13c.
7. In addition, the Defendant’s wife, Jeri Shapiro, executed a Consent to Forfeiture, in which she consented to the forfeiture of the Directly
Forfeitable Assets and the Substitute Assets I, and waived and withdrew any claim she may have to such property. See Jeri Shapiro’s Consent to Forfeiture, ECF No. 143. Jeri Shapiro also agreed to take all
steps requested by the United States for the forfeiture of all assets identified, whether by the United States or by her, which are or may be subject to forfeiture, including by consenting to all orders of forfeiture. Id. 10.
8. Pursuant to 18 U.S.C. § 981(a)(1)(C), which is made criminally applicable by 28 U.S.C. § 2461(c), any property, real or personal, which constitutes or is derived from proceeds
traceable to a conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 1341, 1343, or 1349 is subject to direct criminal forfeiture. Pursuant to 21 U.S.C. § 853(c), which is also made applicable by 28 U.S.C. § 2461(c), the United
States’ right, title, and interest in property that is subject to direct criminal forfeiture vests upon the commission of the act giving rise to the forfeiture.
5
9. On October 15, 2019, the Court entered an Order that preliminarily forfeited, subject to third-party interests, the Directly Forfeitable Assets, the Substitute Assets I, and the
following additional substitute property (the “Substitute Assets II”):
(i) check and resulting proceeds from East West Bank Check # 827015508, dated March 06, 2019 from Davana Primrose Ventures to Summit Sherman Oaks LLC in the amount of
$250,000.00;
(ii) check and resulting proceeds from East West Bank Check # 827015548, dated April 01, 2019 from Davana Sherman Oaks to Jeri Shapiro in the amount of $250,000.00; and
(iii) check and resulting proceeds from East West Bank Check # 827015549, dated April 01, 2019 from Davana Sherman Oaks to Jeri Shapiro in the amount of $250,000.00.
See Order, ECF No. 170. The Court also imposed a forfeiture money judgment on the Defendant, which amount was
later amended to be $470,000,000 in U.S. currency and which represented the value of the proceeds traceable to Count 1 of the Indictment. See Am. Forfeiture Money Judgment, ECF No. 174.
10. On October 16, 2019, the Court sentenced the Defendant to a total of 300 months of imprisonment, that is, 240 months for Count 1 of the Indictment and a consecutive 60 months for Count 2
of the Indictment. See Judgment, ECF No. 175.
11. On November 4, 2019, the Court imposed a restitution judgment in the amount of $478,912,763 against the Defendant. See Am. Judgment, ECF No.
178.
|
B.
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Liquidation Trust’s Petition
|
12. Notice of the criminal forfeiture of the Directly Forfeitable Assets, the Substitute Assets I, and the Substitute Assets II was posted on an official government internet site
(www.forfeiture.gov) for a period of 30 days. See Decl. of Publication, ECF No. 183.
6
13. Direct notice was sent to any person who reasonably appeared to be a potential claimant with standing to contest their forfeiture, or such person was on actual notice of the forfeiture.
14. The notice described the Directly Forfeitable Assets, the Substitute Assets I, and the Substitute Assets II, and advised that any person, other than the Defendant, asserting a legal
interest in the such assets may petition the Court for a hearing to adjudicate the validity of that person’s alleged interest, within 60 days of the first day of publication or within 30 days of receipt of notice, whichever is earlier. Fed. R. Crim.
P. 32.2(b)(6); 21 U.S.C. § 853(n)(2).
15. On March 13, 2020, the Liquidation Trust filed its Verified Claims and Petition for Adjudication of Interests (“Petition”). See Petition, ECF
No. 193.
16. In the Petition, the Liquidation Trust claimed the Directly Forfeitable Assets, the Substitute Assets I, and the Substitute Assets II as property of the Woodbridge Entities’ bankruptcy
estates, which property was vested in the Liquidation Trust pursuant to the First Amended Joint Chapter 11 Plan of Liquidation of Woodbridge Group of Companies, LLC and its Affiliate Debtors (the “Bankruptcy Plan”). See
id. at 2-3.
17. The Bankruptcy Plan was confirmed by the United States Bankruptcy Court for the District of Delaware (“Bankruptcy Court”) on October 26, 2018, in In re
Woodbridge Group of Companies, LLC, et al., Case No. 17-12560 (Bankr. D. Del.). See id.; Petition’s Exhibit A, ECF No. 193-1 (“Order Confirming First Amended Joint Chapter 11 Plan,” the Bankruptcy
Court Order); Petition’s Exhibit B, ECF No. 193-2, (“First Amended Joint Chapter 11 Plan of Liquidation,” the Bankruptcy Plan).
7
18. In confirming the Bankruptcy Plan, the Bankruptcy Court found that: (i) beginning no later than July 2012, through December 1, 2017, the Defendant used his web of more than 275 limited
liability companies to conduct a massive Ponzi scheme raising more than $1.22 billion from over 8,400 unsuspecting investors nationwide; (ii) the Ponzi scheme involved the payment of purported returns to existing investors from funds contributed by
new investors; and (iii) the Ponzi scheme was discovered no later than December 2017. See Petition’s Exhibit A at 16 (page 15 of the Bankruptcy Court Order).
19. Pursuant to the Bankruptcy Plan, the Liquidation Trust was automatically vested on February 15, 2019, with the Woodbridge Entities’ bankruptcy estates’ rights, title, and interests in,
among other assets, non-real-estate-related assets or entities that may be transferred or otherwise provided, directly or indirectly, to or for the benefit of the Liquidation Trust.
20. Under the Bankruptcy Plan, the Liquidation Trust is obligated to identify the assets of the Woodbridge Entities’ bankruptcy estates and take affirmative steps to recover all such assets
for the benefit of its beneficiaries, the vast majority of whom are victims of the Defendant’s fraudulent scheme and conspiracy. See Petition 2-3.
21. The vast majority of the beneficiaries of the Liquidation Trust are victims of Shapiro’s fraud schemes. See Petition 3. The Liquidation Trust
beneficiaries include the holders of allowed claims in Class 3 and Class 5, as defined in Section 3.4 and Section 3.6 of the Bankruptcy Plan. See Petition’s Exhibit B, ECF No. 193-2 (Bankruptcy Plan, § 3.4
Class 3: Standard Note Claims, and § 3.6 Class 5: Unit Claims). There are a total of approximately 7,940 claims in Class 3 and Class 5, which each represent a pecuniary loss as a direct result of the illegal acts that were committed in the course of
Defendant’s offense that was the underlying basis for the forfeiture of the Directly Forfeitable Assets, the Substitute Assets I, and the Substitute Assets II. Class 3 and Class 5 claims were used to
calculate the amount for the restitution judgment that was imposed against the Defendant.
8
22. Class 3 and Class 5 claims have not been otherwise fully compensated for their pecuniary losses. Under the Bankruptcy Plan, the Liquidation Trust shall first distribute assets to each
holder of Class A Liquidation Trust Interests, which includes Class 3 and Class 5, on a pro rata basis until the aggregate amount of all distributions equals the product of (i) the total number of Class A
Liquidations Interests and (ii) $75.00. See Petition’s Exhibit B, ECF No. 193-2 (Bankruptcy Plan, § 1.19 Class A Liquidation Trust Interests; and § 1.84 Liquidation Trusts Interest Waterfall).
|
C.
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Subject Assets
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23. As a result of the Court’s Order and authorized searches of Defendant and his wife’s residence and storage facility, the United States has located and is currently in custody of the
property listed in Exhibit A (collectively, the “Subject Assets”).
24. The following Directly Forfeitable Assets and Substitute Assets I identified in the Order are either duplicative of other assets or have not been recovered, and therefore, are not
included among the Subject Assets (collectively, the “Released Assets”):
(a) All assets on deposit in account number 157514954443 at US Bank, held in the name of Jeri Shapiro;
(b) One (1) 18-karat, white gold, bangle bracelet, with 550 round diamonds (12.50 carats) and 1,434 black diamonds (24.92 carats);
(c) One (1) pair of 18-karat, white gold, drop earrings with 99 yellow sapphires (1.10 carats), 117 tsavorites (1.18 carats), 125 blue sapphires (1.38 carats), 124 blue
diamonds (1.36 carats), 120 amethysts (1.24 carats), 120 pink sapphires (1.18 carats), and 125 orange sapphires (1.26 carats);
(d) One (1) pair of 18-karat, rose gold, golden pearl earrings with round-cut diamonds (.39 carat);
(e) One (1) emerald and diamond ring;2
2 This is a duplicative asset. The asset is already more fully identified in line 18 of Exhibit A, as one (1) platinum ring with certified Colombia emerald-cut emerald (9.54 carats), eight trapezoid- cut
diamonds (2.09 carats), and 166 round-cut diamonds (1.42 carats), seized from residence at 4030 Longridge Avenue.
9
(f) A cashier’s check for $250,000 from East West Bank;3
(g) A mortgage payment made out of East West Bank of $399,867.67;
(h) All assets on deposit in account number 226157004 at Regions Bank, held in the name of Lionshare Lending LLC; and
(i) Any outstanding balance of credits in JP Morgan Chase and Citicard credit cards.
25. The Liquidation Trust stipulates and understands that the Released Assets are not in the United States’ custody, consents to the United States seeking the Court’s release of them from
forfeiture, and withdraws any claim in its Petition for the Released Assets.
26. It is a primary goal of the United States Department of Justice to recover assets through forfeiture that may be used to compensate victims who have incurred a pecuniary loss as a direct
result of the commission of the offense underlying such forfeiture.
27. The Parties share the common goal of locating and distributing assets to the victims of the Defendant’s fraud conspiracy in a timely and cost-effective manner.
28. The Parties have agreed to resolve this matter consistent with the sound policy favoring settlement of legal disputes without resort to unnecessary litigation.
29. Petitioner believes that this Stipulation and Settlement Agreement (the “Agreement”) is in the best interests of the Liquidation Trust and its beneficiaries.
30. The Court has jurisdiction over the Parties, the Subject Assets, and the subject matter of the Agreement.
| II. |
DEFINITIONS
|
31. “Agreement” means this Stipulation and Settlement Agreement.
32. “Bankruptcy Case” means In re Woodbridge Group of Companies, LLC, et al., Bankruptcy Case No. 17-12560 (BLS) (Bankr. D. Del.).
3 This is a duplicative asset. The asset is one of the cashier checks more fully identified in lines 27, 28, or 29 of Exhibit A.
10
33. “Bankruptcy Court” means the United States Bankruptcy Court for the District of Delaware, which is presiding over the Bankruptcy Case.
34. “Bankruptcy Plan” means the First Amended Joint Chapter 11 Plan of Liquidation of Woodbridge Group of Companies, LLC and its Affiliated Debtors, confirmed by the Bankruptcy Court on
October 26, 2018, in the Bankruptcy Case. See Petition’s Exhibit B, ECF No. 193-2.
35. “Collateral Source Recoveries” means any amount recovered by a Qualifying Victim under an order of restitution, as set forth in 18 U.S.C. § 3664(j)(2), or any compensation from any other
source with respect to the such loss, as set forth in by 18 U.S.C. § 3664(j)(1). Collateral Source Recoveries shall be calculated on a gross basis, with no reduction or credit for prejudgment interest, attorney’s fees, or costs.
36. “Criminal Case” means the above-captioned case, United States v. Shapiro, Case No. 19-20178-CR-CMA, including all forfeiture ancillary
proceedings.
37. “Defendant” means Robert Shapiro.
38. The “Court” means the United States District Court for the Southern District of Florida, which is presiding over the Criminal Case.
39. The “Directly Forfeitable Assets” means the specific property alleged to be directly subject to forfeiture in the Indictment, ECF No. 3, in the Criminal Case.
40. “Effective Date” means the first business day after the date when the following events have all occurred: (i) entry of an order by the Court approving the Agreement that is final and
non-appealable; (ii) the expiration of the notice period under 21 U.S.C. § 853; and (iii) either the conclusion of all related criminal matters as the Subject Assets are also being held in federal custody as evidence in the Criminal Case, or if the
United States determines, in its sole discretion, that any of the Subject Assets are no longer required for evidentiary purposes.
11
41. The “Liquidation Trust” means Woodbridge Liquidation Trust, by and through its trustee, Michael I. Goldberg.
42. “Net Sale Proceeds” shall be calculated by deducting from the sale prices of the Subject Assets any direct costs or expenses incurred for their seizure, maintenance, disposition, and
distribution to any Qualifying Victim, including costs incurred solely to fulfill Petitioner’s obligations of providing notice to Qualifying Victims and of making reports to the United States under this Agreement. In calculating Net Sale Proceeds, no
deduction shall be made for any indirect cost or expense incurred by Petitioner, including, but not limited to, Trustee fees, attorney’s fees, the fees of professionals and other persons retained by the Trustee not directly incurred as a result of
the sale and distribution of the Subject Assets to Qualifying Victims; any taxes imposed on the Liquidation Trust; indemnity reserves; and any other bankruptcy-related costs or expenses that were not directly incurred as a result of the sale and
distribution of Subject Assets to Qualifying Victims.
43. “Order” refers to the preliminary order of forfeiture entered on October 15, 2019, in which the Court forfeited, subject to third-party interests, the Subject Assets. See Order, ECF No. 170.
44. The “Parties” means the United States and Petitioner.
45. “Petition” means Petitioner Woodbridge Liquidation Trust’s Verified Claims and Petition for Adjudication of Interests, which was filed on March 13, 2020, and in which Petitioner claimed
the Subject Assets. See Petition, ECF No. 193.
46. “Petitioner” is the “Liquidation Trust,” and is referred to as either Petitioner or Liquidation Trust in this Agreement.
12
47. “Qualifying Victim” means (a) a person or entity with an outstanding restitution balance in the Criminal Case as a result of the restitution judgment in the amount of $478,912,763 entered
by the Court in the Defendant’s Amended Judgment, ECF No. 178 and which was calculated based on allowed claims in Class 3 and Class 5 at the time; (b) a person or entity that otherwise meets the qualifying criteria set forth in 28 C.F.R. § 9.8(b) by
demonstrating (1) a pecuniary loss of a specific amount that has been directly caused by the criminal offense, or related offense, that was the underlying basis for the forfeiture, and the loss is supported by documentary evidence including invoices
and receipts, that (2) the pecuniary loss is the direct result of the illegal acts and is not the result of otherwise lawful acts that were committed in the course of the criminal offense, that (3) the person or entity did not knowingly contribute
to, participate in, benefit from, or act in a willfully blind manner towards the commission of the offense, or related offense, that was the underlying basis for the forfeiture, that (4) the person or entity has not in fact been compensated for the
wrongful loss of the property by the perpetrator or others, and that (5) the person or entity does not have recourse reasonably available to other assets from which to obtain compensation for the wrongful loss of the property; or (c) consistent with
28 C.F.R. § 9.2, a person or entity that purchased units of the Liquidation Trust from a person or entity that meets the criteria set forth in either subsections (a) or (b) above.
48. The “Released Assets” are the assets that were identified in the Order, but are either duplicative of other preliminarily forfeited assets or have not been recovered.
49. “Shapiro” refers to the Defendant, Robert Shapiro.
50. The “Subject Assets” means the specific assets that are subject to this Agreement, which are listed in the attached Exhibit A.
13
51. The “Substitute Assets I” are the specific assets listed as substitute property in the Defendant’s Plea Agreement, ECF No. 139, that the Defendant agreed to forfeit.
52. The “Substitute Assets II” are the specific assets later identified as the Defendant’s substitute property that were preliminarily forfeited pursuant to 21 U.S.C. § 853(p) in the Order,
ECF No. 170.
53. “Trustee” refers to Michael I. Goldberg, who is the trustee of the Liquidation Trust.
54. The “United States” means the United States of America, by and through the United States Attorney’s Office for the Southern District of Florida.
| III. |
TERMS
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55. The terms of the Agreement are subject to the approval of the Court, and any violation of any term or condition shall be construed as a violation of an order of the Court.
56. The United States agrees to seek the Court’s approval of the Agreement after the Agreement is executed by the Parties.
57. Within 30 days after the Effective Date, or such other time by agreement of the Parties, the United States agrees to release the Subject Assets to Petitioner in full settlement and
satisfaction of Petitioner’s claim(s) arising from and related to the seizure, detention, or forfeiture of the Subject Assets.
58. Petitioner agrees to take the Subject Assets in their existing condition “as is, where is, and with all faults” with respect to all facts,
circumstances, conditions and defects, and agrees that the United States will not be responsible for any costs and/or expenses that have been incurred or will be incurred related to the Subject Assets.
59. Petitioner agrees that the United States has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Petitioner for same as
the United States has specifically bargained for the assumption by Petitioner of all costs and risk of conditions with respect to the Subject Assets and the Parties have structured the terms of the Agreement in consideration thereof.
14
60. Upon the United States’ release of the Subject Assets, Petitioner, its agents, heirs, relatives, and assigns hereby withdraw all claim(s) and waive any defense(s) in this matter that it
has or might have against the United States, the United States Attorney’s Office for the Southern District of Florida, the United States Department of Justice, the Federal Bureau of Investigation, the United States Marshals Service, and all agents,
officers, and employees thereof, (the “Released Parties”) relating to the restraint, seizure of, the commencement of forfeiture proceedings against, or the forfeiture of the Subject Assets, including any claim(s) for lost profits or interest.
61. Upon release of the Subject Assets, Petitioner agrees to hold harmless and fully indemnify the Released Parties from all claims pertaining to this matter and the Subject Assets.
62. Petitioner agrees to sell, liquidate, transfer, or otherwise dispose of the Subject Assets, or any part thereof or interest therein, upon such terms designed to maximize the value of the
Net Sale Proceeds and by commercially reasonable means.
63. Petitioner agrees to distribute the Net Sale Proceeds on a pro rata basis to each Qualifying Victim, up to the outstanding amount of the
pecuniary loss of that Qualifying Victim. No distribution shall be made for any amount Petitioner knows to have been already recovered by a Qualifying Victim for the same pecuniary loss, or any compensation from any other source with respect to such
loss.
64. Petitioner shall publish a notice to all Qualifying Victims advising that by accepting the distribution, each Qualifying Victim submits under penalty of perjury that the Net Sale Proceeds
distributed to said Qualifying Victim would not result in the receipt of funds in excess of the outstanding amount of the pecuniary loss of that Qualifying Victim.
15
65. Petitioner shall provide the United States the following information regarding the Subject Assets and the distribution of Net Sale Proceeds to Qualifying Victims: (a) a list of the Net
Sale Proceeds for each of the Subject Assets; and (b) a list indicating the amount distributed to each Qualifying Victim from the Net Sale Proceeds. If requested by the United States, Petitioner also agrees to provide supporting documentation for
each of these lists.
66. Each of the Parties agrees to bear its own costs and attorney’s fees.
67. The Agreement shall be governed by and construed in accordance with the federal law and, where applicable, the laws of the State of Florida, without giving effect to any principles of
conflicts of law.
68. Petitioner has read and fully understand each provision of the Agreement, and has freely and voluntarily signed into the Agreement.
69. The Agreement may be executed in one or more counterparts, each of which when executed and delivered shall be an original, and all of which when executed shall constitute one and the same
instrument.
16
70. The Agreement contains the entire agreement between Petitioner and the United States.
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FOR THE UNITED STATES OF AMERICA:
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ARIANA FAJARDO ORSHAN
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| UNITED STATES ATTORNEY |
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Date: | By: |
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Nalina Sombuntham
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Assistant United States Attorney
Deputy Chief, Asset Forfeiture Division
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FOR PETITIONER WOODBRIDGE LIQUIDATION TRUST:
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Date: | By: |
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Michael I. Goldberg
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Trustee of and Authorized Representative for
Petitioner Woodbridge Liquidation Trust
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Date: | By: |
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Adam L. Schwartz, Esq.
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Counsel for Petitioner
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17
EXHIBIT A
Subject Assets
18
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#
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CATS ID No.
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Subject Asset Description
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1
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19-FBI-004085
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Approximately $244.01 seized from account number 4040774877 at Alpine Bank, held in the name of Carbondale Basalt Owners LLC;
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2
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19-FBI-004086
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Approximately $342.17 seized from account number 8900003424 at Alpine Bank, held in the name of Davana Sherman Oaks Owners LLC;
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3
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19-FBI-004087
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Approximately $146,997.01 seized from account number 8970196989 at Alpine Bank, held in the name of Midland Loop Enterprises LLC;
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4
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19-FBI-004088
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Approximately $15,997.20 seized from account number 36044043514 at Capital One Bank, held in the name of Jeri Shapiro;
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5
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19-FBI-004089
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Approximately $208,578.06 seized from account number 80-27009771 at East West Bank, held in the name of Davana Primrose Ventures LLC;
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6
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19-FBI-004090
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Approximately $72,641.89 seized from account number 20-27007984 at East West Bank, held in the name of Jeri L Shapiro;
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7
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19-FBI-004091
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Approximately $101,834.53 seized from account number 80-27010068 at East West Bank, held in the name of Reliance Marketing Solutions LLC;
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8
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19-FBI-004092
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Approximately $1,301.44 seized from account number 80-27010381 at East West Bank, held in the name of Settlement Depot LLC;
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9
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19-FBI-004093
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Approximately $436,469.44 seized from account number X96-267462 at Fidelity Cash Management, held in the name of Jeri Shapiro;
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10
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19-FBI-004094
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Approximately $6,315.88 seized from account number 197148628 at Regions Bank, held in the name of Commercial Bridge Lenders LLC;
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11
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19-FBI-004095
|
Approximately $140,940.14 seized from account number 2010131932 at Timberline Bank, held in the name of Golden Mesa Ventures LLC;
|
|
12
|
19-FBI-004096
|
Approximately $10,689.29 seized from account number 2010131940 at Timberline Bank, held in the name of Golden Primrose Ventures LLC;
|
19
|
#
|
CATS ID No.
|
Subject Asset Description
|
|
13
|
19-FBI-004098
|
One (1) pair of 18-karat, white gold, drop earrings, with 1,344 round- cut diamonds (13.80 carats), seized from residence at 4030 Longridge Avenue;
|
|
14
|
19-FBI-004098
|
One (1) pair of 18-karat, white gold, button earrings, with 162 round diamonds (13.89 carats), seized from residence at 4030 Longridge Avenue;
|
|
15
|
19-FBI-004098
|
One (1) pair of 18-karat, white gold, drop earrings with 22 emeralds (35.53 carats) and round-cut diamonds (7.18 carats), seized from storage locker at 7660 Balboa Blvd;
|
|
16
|
19-FBI-004098
|
One (1) pair of 18-karat, rose gold, drop earrings with round-cut diamonds (.62 carat), seized from residence at 4030 Longridge Ave;
|
|
17
|
19-FBI-004098
|
One (1) pair of 18-karat, rose gold, drop earrings with rubies (38.90 carats), seized from storage locker at 7660 Balboa Blvd;
|
|
18
|
19-FBI-004098
|
One (1) platinum ring with certified Colombia emerald-cut emerald (9.54 carats), eight trapezoid-cut diamonds (2.09 carats), and 166 round-cut diamonds (1.42 carats), seized from residence at 4030 Longridge
Avenue;
|
|
19
|
19-FBI-004098
|
One (1) pair of 18-karat, white gold earrings with multi-color pearls (11.8-15.5mm) and round-cut diamonds (.98 carat), seized from storage locker at 7660 Balboa Blvd;
|
|
20
|
19-FBI-004098
|
One (1) platinum ring with oval-cut ruby (10.19 carats), two trapezoid diamonds (1.19 carats), and 70 round-cut diamonds (2.08 carats), seized from residence at 4030 Longridge Avenue,
|
|
21
|
19-FBI-004098
|
One (1) 18-karat, rose gold, bangle bracelet with round diamonds (1.50 carats), seized from storage locker at 7660 Balboa Blvd;
|
|
22
|
19-FBI-004098
|
One (1) 18-karat, white gold, bangle bracelet with round diamonds (1.5 carats), seized from storage locker at 7660 Balboa Blvd;
|
20
|
#
|
CATS ID No.
|
Subject Asset Description
|
|
23
|
19-FBI-004098
|
One (1) pair of 14-karat, white gold, drop earrings with two black diamonds (61.81 carats), two icy grey diamonds (23.92 carats), two rose-cut diamonds (.36 carat), and 266 round diamonds (1.63 carats), seized
from residence at 4030 Longridge Avenue;
|
|
24
|
19-FBI-004098
|
One (1) 18-karat, yellow gold ring with 13 radiant-cut diamonds (13.83 carats), seized from storage locker at 7660 Balboa Blvd;
|
|
25
|
19-FBI-004099
|
One (1) 1969 Mercury convertible, bearing Vehicle Identification Number (“VIN”) 9F92M565911, seized from residence at 4030 Longridge Avenue;
|
|
26
|
20-FBI-000175
|
Wine collection stored at 4030 Longridge Avenue, Sherman Oaks, CA;
|
|
27
|
20-FBI-000180
|
Approximately $250,000 in resulting proceeds from East West Bank Check # 827015508, dated March 06, 2019 from Davana Primrose Ventures to Summit Sherman Oaks LLC in the amount of $250,000.00;
|
|
28
|
20-FBI-000181
|
Approximately $250,000 in resulting proceeds from East West Bank Check # 827015548, dated April 01, 2019 from Davana Sherman Oaks to Jeri Shapiro in the amount of $250,000.00;
|
|
29
|
20-FBI-000182
|
Approximately $250,000 in resulting proceeds from East West Bank Check # 827015549, dated April 01, 2019 from Davana Sherman Oaks to Jeri Shapiro in the amount of $250,000.00;
|
|
30
|
N/A
|
Item 1: one (1) watch with multiple colored stones
|
|
31
|
N/A
|
Item 2: one (1) pendent with multiple colored stones
|
|
32
|
N/A
|
Item 3: one (1) black box and one (1) silver colored ring with clear stones
|
|
33
|
N/A
|
Item 5: one (1) black box, one (1) pair of earrings with clear and dark colored stones
|
|
34
|
N/A
|
Item 6: one (1) white box and one (1) bracelet yellow colored, one (1) pair of yellow colored earrings with clear stone
|
|
35
|
N/A
|
Item 7: one (1) black and white colored bracelet with clear stones
|
21
|
#
|
CATS ID No.
|
Subject Asset Description
|
|
36
|
N/A
|
Item 8: one (1) black colored bracelet with multiple colored stones in shape of an elephant
|
|
37
|
N/A
|
Item 9: one (1) brown box containing a pair of silver colored earrings with white and purple stones
|
|
38
|
N/A
|
Item 10: one (1) yellow colored necklace with purple and green colored stones, one (1) yellow colored pair of earrings with green and purple stones, one (1) black case with ““Bvlgari”” ““custom care”” written
on it”
|
|
39
|
N/A
|
Item 11: one (1) box containing six (6) earring backs
|
|
40
|
N/A
|
Item 12: one (1) brown and silver colored bracelet
|
|
41
|
N/A
|
Item 14: one (1) pair of silver colored earrings with multiple white stones
|
|
42
|
N/A
|
Item 15: one (1) pair of silver colored earrings
|
|
43
|
N/A
|
Item 16: one (1) pair of silver colored earrings
|
|
44
|
N/A
|
Item 17: one (1) pair of silver colored earrings with multiple colored stones
|
|
45
|
N/A
|
Item 18: one (1) pair of silver colored earrings with clear stones
|
|
46
|
N/A
|
Item 19: one (1) pair of white and yellow colored stones
|
|
47
|
N/A
|
Item 20: one (1) yellow colored necklace with white and green colored stones, one (1) yellow colored necklace with multiple colored stones”
|
|
48
|
N/A
|
Item 21: one (1) pair of silver colored earrings with white and green colored stones
|
|
49
|
N/A
|
Item 22: one (1) pair of silver colored earrings with green stones
|
|
50
|
N/A
|
Item 23: one (1) pair of silver and black earrings with clear stones
|
|
51
|
N/A
|
Item 24: one (1) silver colored pair of earrings with white stones
|
|
52
|
N/A
|
Item 25: one (1) pair of silver colored earrings with white stones
|
22
|
#
|
CATS ID No.
|
Subject Asset Description
|
|
53
|
N/A
|
Item 26: one (1) pair of silver colored earrings with a blue and a purple stone
|
|
54
|
N/A
|
Item 27: one (1) pair of silver colored earrings with clear stones
|
|
55
|
N/A
|
Item 28: one (1) yellow colored pair of earrings with white stones
|
|
56
|
N/A
|
Item 29: one (1) pair of yellow colored earrings with multiple colored stones
|
|
57
|
N/A
|
Item 30: one (1) pair of silver colored earrings with clear stones”
|
|
58
|
N/A
|
Item 31: one (1) yellow colored earring and one (1) yellow colored broken earring
|
|
59
|
N/A
|
Item 32: one (1) yellow colored pair of earrings with multiple colored stones
|
|
60
|
N/A
|
Item 33: one (1) rose colored pair of earrings with white stones
|
|
61
|
N/A
|
Item 34: one (1) yellow colored pair of earrings
|
|
62
|
N/A
|
Item 35: one (1) pair of yellow colored earrings with multiple colored stones
|
|
63
|
N/A
|
Item 36: one (1) pair of yellow colored earrings with clear and red stones
|
|
64
|
N/A
|
Item 37: one (1) pair of yellow colored earrings with red colored stones
|
|
65
|
N/A
|
Item 38: one (1) pair of yellow colored earrings
|
|
66
|
N/A
|
Item 39: one (1) pair of yellow colored earrings with multiple colored stones
|
|
67
|
N/A
|
Item 40: one (1) single yellow colored earring with multiple clear stones
|
|
68
|
N/A
|
Item 41: three (3) silver colored earring backs
|
|
69
|
N/A
|
Item 42: one (1) pair of rose colored earrings with clear stones with one (1) earring back
|
|
70
|
N/A
|
Item 43: one (1) single silver colored earring with multiple clear stones
|
|
71
|
N/A
|
Item 44: one (1) single yellow colored earring broken with earring back
|
23
|
#
|
CATS ID No.
|
Subject Asset Description
|
|
72
|
N/A
|
Item 45: one (1) white envelope, seven (7) checkbooks in two (2) cardboard folders with loose checks
|
|
73
|
N/A
|
Item 46: US currency: 8 x $100, 32 x $20, total = $1440
|
|
74
|
N/A
|
Item 47a: money from item 47; US currency: 19 x $100, 23 x $1, total
= $1923
|
|
75
|
N/A
|
Item 50: foreign currency; 626.9 Euros, 400 Danish Kroners, 20 Israeli Shekels
|
|
76
|
N/A
|
Item 51: suspected Chagall painting
|
|
77
|
N/A
|
Item 97: Happy Days signatures photo
|
|
78
|
N/A
|
Item 133: Joe Namath signed photo
|
|
79
|
N/A
|
Item 54: US currency; 7 x $100, 1x $50, 13 x $20, 6 x $5, 15 x $1, total = $1055
|
|
80
|
N/A
|
Item 55: one (1) black case with brown colored reading glasses with clear stones and ear plugs
|
|
81
|
N/A
|
Item 56: US currency; 128 x $100, 94 x $20, total = $14,680
|
|
82
|
N/A
|
Item 58: one (1) silver colored watch with clear stones
|
|
83
|
N/A
|
Item 66a: one (1) silver colored earring with backing and one (1) gold colored pendent with black, yellow and gold colored design
|
|
84
|
N/A
|
Item 69a: foreign currency; 1730 British Pounds, 1230 South African Rands, 215 Euros, 10000 CFP Francs, 30 New Zealand Dollars, 260 Israeli Shekels, 200 Australian Dollars, 800 Danish Kroners
|
|
85
|
N/A
|
Item 70: one (1) brown bag
|
|
86
|
N/A
|
Item 71a: fourteen (14) purses
|
|
87
|
N/A
|
Item 71b: twelve (12) purses
|
|
88
|
N/A
|
Item 71c: five (5) purses
|
|
89
|
N/A
|
Item 71d: six (6) purses
|
24
|
#
|
CATS ID No.
|
Subject Asset Description
|
|
90
|
N/A
|
Item 71e: nine (9) purses
|
|
91
|
N/A
|
Item 71f: two (2) purses
|
|
92
|
N/A
|
Item 71g: sixteen (16) purses
|
|
93
|
N/A
|
Item 71h: sixteen (16) purses
|
|
94
|
N/A
|
Item 71i: thirteen (13) purses
|
|
95
|
N/A
|
Item 71j: seven (7) purses
|
|
96
|
N/A
|
Item 71k: eight (8) purses
|
|
97
|
N/A
|
Item 71l: six (6) purses
|
|
98
|
N/A
|
Item 71m: ten (10) purses
|
|
99
|
N/A
|
Item 71n: six (6) purses
|
|
100
|
N/A
|
Item 72: one (1) gold colored watch with the word “Rolex” written on it
|
|
101
|
N/A
|
Item 73a: ten (10) pairs of shoes
|
|
102
|
N/A
|
Item 73b: seven (7) pairs of shoes
|
|
103
|
N/A
|
Item 73c: twelve (12) pairs of shoes
|
|
104
|
N/A
|
Item 73d: twelve (12) pairs of shoes
|
|
105
|
N/A
|
Item 73e: nine (9) pairs of shoes
|
|
106
|
N/A
|
Item 73f: fifteen (15) pairs of shoes
|
|
107
|
N/A
|
Item 73g: eleven (11) pairs of shoes
|
|
108
|
N/A
|
Item 73h: six (6) pairs of shoes
|
25
|
#
|
CATS ID No.
|
Subject Asset Description
|
|
109
|
N/A
|
Item 73i: nine (9) pairs of shoes
|
|
110
|
N/A
|
Item 73j: thirteen (13) pairs of Manolo Blahnik shoes
|
|
111
|
N/A
|
Item 73k: eleven (11) pairs of shoes
|
|
112
|
N/A
|
Item 73l: fifteen (15) pairs of shoes
|
|
113
|
N/A
|
Item 73m: fourteen (14) pairs of Stuart Weitzman shoes
|
|
114
|
N/A
|
Item 73n: thirteen (13) pairs of shoes
|
|
115
|
N/A
|
Item 73o: ten (10) pairs of shoes
|
|
116
|
N/A
|
Item 73p: nine (9) pairs of Christian Louboutin shoes
|
|
117
|
N/A
|
Item 73q: eight (8) pairs of Stuart Weitzman shoes
|
|
118
|
N/A
|
Item 73r: fifteen (15) pairs of shoes
|
|
119
|
N/A
|
Item 73s: six (6) pairs of Valentinos shoes
|
|
120
|
N/A
|
Item 73t: sixteen (16) pairs of J. Choos choes
|
|
121
|
N/A
|
Item 73u: twelve (12) pairs of shoes
|
|
122
|
N/A
|
Item 73v: eight (8) pairs of Jimmy Choo shoes
|
|
123
|
N/A
|
Item 73w: twelve (12) pairs of J. Choos shoes
|
|
124
|
N/A
|
Item 73x: ten (10) pairs of shoes
|
|
125
|
N/A
|
Item 73y: ten (10) pairs of shoes
|
|
126
|
N/A
|
Item 73z: six (6) pairs of shoes
|
|
127
|
N/A
|
Item 73aa: seven (7) pairs of shoes
|
26
|
#
|
CATS ID No.
|
Subject Asset Description
|
|
128
|
N/A
|
Item 73bb: nine (9) pairs of shoes and one (1) bag
|
|
129
|
N/A
|
Item 74a: sixty-four (64) items of clothing
|
|
130
|
N/A
|
Item 74b: eight (8) jackets
|
|
131
|
N/A
|
Item 74c: eighteen (18) items of clothing/dresses
|
|
132
|
N/A
|
Item 74d: eighteen (18) items of clothing/dresses
|
|
133
|
N/A
|
Item 74e: twenty (20) items of clothing/dresses/belts/scarf
|
|
134
|
N/A
|
Item 75a: nine (9) pairs of men’s shoes
|
|
135
|
N/A
|
Item 75b: ten (10) pairs of men’s shoes
|
|
136
|
N/A
|
Item 75c: men’s belts and one (1) pair of men’s shoes
|
|
137
|
N/A
|
Item 76a: eleven (11) items of men’s clothing
|
|
138
|
N/A
|
Item 76b: thirteen (13) items of men’s suits
|
|
139
|
N/A
|
Item 76c: nine (9) items of men’s clothing and suits
|
|
140
|
N/A
|
Item 77: one (1) set of 4 Luis Vuitton luggage bags
|
|
141
|
N/A
|
Item 78: gold framed art
|
|
142
|
N/A
|
Item 80: red framed art
|
|
143
|
N/A
|
Item 87: black framed art
|
|
144
|
N/A
|
Item 79: suspected Jean Dufy watercolor
|
|
145
|
N/A
|
Item 86: suspected falling cat painting
|
|
146
|
N/A
|
Item 81: chess set
|
27
|
#
|
CATS ID No.
|
Subject Asset Description
|
|
147
|
N/A
|
Item 82: Giancinto Bosco moon sculpture
|
|
148
|
N/A
|
Item 83: metal hands sculpture
|
|
149
|
N/A
|
Item 84: suspected Frank Melsler sculpture
|
|
150
|
N/A
|
Item 85: Giancinto Bosco tall sculpture
|
|
151
|
N/A
|
Item 88: suspected horse painting
|
|
152
|
N/A
|
Item 89: vase on desk painting
|
|
153
|
N/A
|
Item 99: Magic Johnson signed photo
|
|
154
|
N/A
|
Item 122: suspected Renoir sketch
|
|
155
|
N/A
|
Item 90: signed Academy Awards poster
|
|
156
|
N/A
|
Item 91: signed Elvis photgraphs
|
|
157
|
N/A
|
Item 92: suspected signed Elvis photo
|
|
158
|
N/A
|
Item 93: metal hands sculpture with base
|
|
159
|
N/A
|
Item 94: one (1) framed wall art
|
|
160
|
N/A
|
Item 98: suspected Joe Namath art 27/69”
|
|
161
|
N/A
|
Item 96: suspected Joe Namath autographed helmet
|
|
162
|
N/A
|
Item 101: one (1) pair of silver and black colored earrings with clear stones
|
|
163
|
N/A
|
Item 102: one (1) pair of yellow colored earrings with green stones
|
|
164
|
N/A
|
Item 103: two (2) silver colored earrings with orange and clear stones
|
|
165
|
N/A
|
Item 104: two (2) silver colored earrings with clear, yellow stones and white fluorescent stones with backing
|
28
|
#
|
CATS ID No.
|
Subject Asset Description
|
|
166
|
N/A
|
Item 105: one (1) pair of silver colored earrings with clear stones
|
|
167
|
N/A
|
Item 106: one (1) pair of oval shaped, silver colored earrings with clear stones and backings
|
|
168
|
N/A
|
Item 107: one (1) pair of bronze colored earrings with clear stones
|
|
169
|
N/A
|
Item 108: one (1) pair of bronze colored earrings
|
|
170
|
N/A
|
Item 109: one (1) silver colored bracelet
|
|
171
|
N/A
|
Item 110: one (1) silver colored bracelet
|
|
172
|
N/A
|
Item 111: one (1) silver watch with ““chanel”” in writing
|
|
173
|
N/A
|
Item 112: one (1) silver and black colored watch with clear stone
|
|
174
|
N/A
|
Item 113: one (1) yellow colored ring with clear stones
|
|
175
|
N/A
|
Item 114: one (1) silver colored ring with clear stones
|
|
176
|
N/A
|
Item 115: one (1) silver and yellow colored ring with green and clear stones
|
|
177
|
N/A
|
Item 116: one (1) silver colored ring with green, red, blue, clear stones
|
|
178
|
N/A
|
Item 117: one (1) silver colored necklace with clear stones with black bag with ““XIV Karats LTD Beverly Hills”” logo
|
|
179
|
N/A
|
Item 118: two (2) silver colored necklaces
|
|
180
|
N/A
|
Item 120: foreign currency; 20000 CFP Francs, 2000 Hungarian Forints, 20 Euros, 100 Australian Dollars, 200 Czech Koruns, 920 Israeli Shekels
|
|
181
|
N/A
|
Item 123: man and hanging woman sculpture
|
|
182
|
N/A
|
Items 124 and 125: two (2) pottery vases
|
|
183
|
N/A
|
Items 124 and 125: two (2) pottery vases
|
29
|
#
|
CATS ID No.
|
Subject Asset Description
|
|
184
|
N/A
|
Item 126: Picasso small vase
|
|
185
|
N/A
|
Item 127: nine (9) furs
|
|
186
|
N/A
|
Item 129: US currency; 55 x $20, 1 x $5, 3 x $1, total = $1108
|
|
187
|
N/A
|
Item 130: three (3) Louis Vuitton bags
|
|
188
|
N/A
|
Item 131: three (3) Louis Vuitton luggage bags
|
|
189
|
N/A
|
Item 132: one (1) Louis Vuitton bag
|
|
190
|
N/A
|
Item 136: one (1) silver colored ring with clear stones
|
|
191
|
N/A
|
Item #1: One (1) dark grey statute
|
|
192
|
N/A
|
Item #2: Eight (8) yellow-colored metal bars in plastic cases with certification numbers: B001600, C001086, B003657, B004513, 014646, C001732, B003533, B04200
|
|
193
|
N/A
|
Item #3: One (1) yellow-colored metal bar in clear ziptop bag, S/N 7798AE
|
|
194
|
N/A
|
Item #4: Three (3) opaque plastic containers with red lids each containing fifteen yellow-colored metal disks; one (1) opaque plastic container with red lid containing ten (10) yellow-colored metal discs.
|
|
195
|
N/A
|
Item #5: Seven (7) yellow-colored metal bars labeled “Credit Suisse, 10 oz, fine gold 999 Chi Essayeur Fondeur” wrapped in plastic, with serial numbers: 021217, 023440 023586, 024426, 024425, 024614, 025092
(all with
certificate).
|
|
196
|
N/A
|
Item #6: Black case containing: one (1) pair of earrings with black/tan/grey multi-colored spheres, metal and clear stones; one (1) pair of earrings with red stones; one (1) pair of earrings with green and
clear stones; one (1) pair of earrings with clear stones.
|
|
197
|
N/A
|
Item #7: Black cloth bag containing: one(1) pair of yellow metal earrings with multi-color and clear stones; one (1) matching yellow metal chain with multi-color and clear stones and medallion; one (1) yellow
metal chain with medallion with clear stones labeled “Bvlgari Bvlgari”
|
30
|
#
|
CATS ID No.
|
Subject Asset Description
|
|
198
|
N/A
|
Item #8: Grey cloth bag containing: one (1) yellow metal band with clear/yellow stones; one (1) yellow metal band containing black and clear stones.
|
|
199
|
N/A
|
Item #9: Light tan cloth bag containing: one (1) rose/yellow metal band with clear stones; one (1) silver-colored metal band with clear stones; one (1) metal band with black and clear stones with
detached/broken hinge.
|
|
200
|
N/A
|
Item #10: Black pouch containing: one (1) silver-colored metal watch with clear stones labeles “Bvlgari”; one (1) yellow-metal watch with clear stones labeled “Bvlgari.”
|
|
201
|
N/A
|
Item #11: Painting labeled “Le Clown Marc Chagall.”
|
|
202
|
N/A
|
Item #12: Framed art piece with multi-colored puzzle-piece shaped object.
|
|
203
|
N/A
|
Item #13: Multi-colored wall art with illegible signature on the back - “Caution.”
|
|
204
|
N/A
|
Item #14: Multi-colored wall art with illegible signature on the back - “1-2-3 Shoreditch.”
|
|
205
|
N/A
|
Item #15: Yellow wall art appearing to be of Marilyn Monroe, wrapped in a blue blanket.
|
31
Exhibit 31.1
Certification of Liquidation Trustee pursuant to Section 302
of the Sarbanes-Oxley Act of 2002
I, Michael I. Goldberg, certify that:
| 1. |
I have reviewed this Annual Report on Form 10-K of Woodbridge Liquidation Trust;
|
| 2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by this report;
|
| 3. |
Based on my knowledge, the consolidated financial statements, and other financial information included in this report, fairly present in all material respects the net assets in liquidation and changes in net
assets in liquidation of the registrant as of, and for, the periods presented in this report;
|
| 4. |
I am responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
|
| a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under my supervision, to ensure that material information relating to the registrant, including
its consolidated subsidiaries, is made known to me by other within those entities, particularly during the period in which this report is being prepared;
|
| b) |
(Omitted pursuant to SEC Release Nos. 33-8238/34-47986 and 33-8392/34-4933);
|
| c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report my conclusions about the effectiveness of the disclosure controls and procedures, as of the end of
the period covered by this report based on such evaluation; and
|
| d) |
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the
case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
| 5. |
I have disclosed, based on my recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the
equivalent functions):
|
| a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record,
process, summarize and report financial information; and
|
| b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
|
Date: September 25, 2020
|
By:
|
/s/ Michael I. Goldberg
|
|
|
Michael I. Goldberg,
|
|||
|
Liquidation Trustee
|
Exhibit 32.1
Certification of Liquidation Trustee pursuant to 18 U.S.C. 1350,
as Adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Annual Report on Form 10-K of Woodbridge Liquidation Trust (the “Registrant”) for the year ended June 30, 2020, as filed with the Securities and exchange Commission on the date hereof (the
“Report”), the undersigned, Michael I. Goldberg, Trustee of the Registrant, hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of his knowledge and belief:
|
1.
|
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
|
|
2.
|
The information contained in the Report fairly presents, in all material respects, the net assets in liquidation and changes in net assets in liquidation of the Registrant.
|
|
Date: September 25, 2020
|
By:
|
/s/ Michael I. Goldberg
|
|
|
Michael I. Goldberg,
|
|||
|
Liquidation Trustee
|
|||