12-10685-mg Doc 1481 Filed 08/24/12 Entered 08/24/12 125413 Main Document Pg 1 of 2 TOGUT, SEGAL & SEGAL LLP One Penn Plaza Suite 3335 New York, New York 10119 (212) 594-5000 Frank A. Oswald Jonathan P. Ibsen James J. Lee Counsel to the Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re Chapter 11 GRUBB & ELLIS COMPANY, et al., Case No. 12-10685 (MG) Debtors. (Jointly Administered) NOTICE OF REJECTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES PLEASE TAKE NOTICE that on March 23, 2012, the United States Bankruptcy Court for the Southern District of New York (the Bankruptcy Court ) entered the enclosed order (the Procedures Order ) in the above-referenced Chapter 11 cases of the debtors and debtors in possession in the above-captioned cases (collectively, the Debtors or Grubb & Ellis ), among other things, approving expedited procedures (the Rejection Procedures ) for the rejection of executory contracts and unexpired leases, including, without limitation, real and personal property leases, employments agreements, property and facilities management agreements, and agreements for the provision of goods and services (each a Contract and, collectively, the Contracts ). PLEASE TAKE FURTHER NOTICE that pursuant to the terms of the Procedures Order, the Debtors hereby provide notice (the Notice ) of their intent to reject the schedule of Contracts annexed hereto as Exhibit A. Pursuant to the terms of the Procedures Order, unless a written objection is filed and served in accordance with the terms of the Procedures Order, the Contracts identified on Exhibit A will be rejected pursuant to 11 U.S.C. 365(a), effective as of the date the Debtors file and serve the Notice (the Rejection Date ). PLEASE TAKE FURTHER NOTICE that objections, if any, to this Notice must be filed and served so that such objection is filed with the Bankruptcy Court and actually received by the following parties no later than fourteen (14) days after the date of this Notice (i) counsel to the Debtors, Togut, Segal & Segal LLP, One Penn Plaza,
12-10685-mg Doc 1481 Filed 08/24/12 Entered 08/24/12 125413 Main Document Pg 2 of 2 Suite 3335, New York, New York 10119 (Attn Frank A. Oswald, Esq. and Jonathan P. Ibsen, Esq.); and (ii) counsel to the Creditors Committee, Alston & Bird LLP, 90 Park Avenue, New York, New York 10016 (Attn Martin G. Bunin, Esq. and Craig E. Freeman, Esq.) (collectively, the Objection Notice Parties ). PLEASE TAKE FURTHER NOTICE that if an objection to this Notice is timely filed and served, the Debtors shall seek a hearing on such objection and shall provide at least seven (7) days notice of such hearing to the objecting party and the Objection Notice Parties. If such objection is overruled by the Court or withdrawn, the rejection of the Contract shall be deemed effective (a) as of the Rejection Date, or (b) as otherwise determined by the Court as set forth in any order overruling such objection. PLEASE TAKE FURTHER NOTICE that, pursuant to the terms of the Procedures Order, and to the extent applicable, if the Debtors have deposited monies with the Contract counterparty as a security deposit or otherwise, the Contract counterparty may not setoff or otherwise use such deposit without the prior authorization of the Bankruptcy Court. PLEASE TAKE FURTHER NOTICE that pursuant to the terms of the Procedures Order, for any claim that you may assert against the Debtors as a result of the rejection of any Contract, you must submit a proof of claim for damages arising from such rejection, on or before the later of (i) the deadline for filing proofs of claim established by the Court in the Debtors cases, or (ii) forty-five (45) days after the Rejection Date. If you do not timely file such proof of claim, you shall be forever barred from asserting a claim for rejection damages arising from the rejection of the abovereferenced Contract or from participating in any distributions that may be made in connection with these Chapter 11 cases. Dated New York, New York August 24, 2012 GRUBB & ELLIS COMPANY, et al., By Their Counsel TOGUT, SEGAL & SEGAL LLP By /s/frank A. Oswald FRANK A. OSWALD A Member of the Firm One Penn Plaza, Suite 3335 New York, New York 10119 (212) 594-5000 2
12-10685-mg Doc 1481-1 Filed 08/24/12 Entered 08/24/12 125413 Exhibit A Pg 1 of 1 Exhibit "A" Debtor Entity Counterparty Address 1 Address 2 City State Zip Attention Contract Description Grubb & Ellis Management Services Inc. Canon Business Solutions, Inc. 4 Ohio Drive Lake Success NY 11042 Maintenance agreement dated 8/5/2010 for a Canon IR 5055 1
12-10685-mg Doc 1481-2 Filed 08/24/12 Entered 08/24/12 125413 Declaration of Linda Duer in Support of the Debtors Rejection of Certain Pg 1 of 2 TOGUT, SEGAL & SEGAL LLP One Penn Plaza Suite 3335 New York, New York 10119 (212) 594-5000 Frank A. Oswald Jonathan P. Ibsen James Lee Counsel to the Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re Chapter 11 GRUBB & ELLIS COMPANY, et al., Case No. 12-10685 (MG) Debtors. (Jointly Administered) DECLARATION OF LINDA DUER IN SUPPORT OF THE DEBTORS REJECTION OF CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED LEASES Under 28 U.S.C. 1746, I, Linda Duer, declare as follows under penalty of perjury 1. I am the Executive Vice President for Grubb & Ellis Company and its affiliate debtors (collectively, the Debtors ). 2. I submit this declaration (the Declaration ) in support of the Debtors enclosed Notice of Rejection of Executory Contracts and Unexpired Leases (the Notice ) pursuant to section 365 of the Bankruptcy Code to reject the Contracts identified in the Notice. 3. Except as otherwise set forth herein, all statements in this Declaration are based on my personal knowledge and my familiarity with the Debtors
12-10685-mg Doc 1481-2 Filed 08/24/12 Entered 08/24/12 125413 Declaration of Linda Duer in Support of the Debtors Rejection of Certain Pg 2 of 2 business operations. I have reviewed, or caused a member of the Debtors staff to review, relevant documents related to the Notice. 4. Grubb & Ellis is a party to thousands of executory contracts and unexpired leases, including, without limitation, real and personal property leases, employments agreements, property and facilities management agreements, and agreements for the provision of goods and services (each a Contract and, collectively, the Contracts ). Pursuant to an Order of the Bankruptcy Court dated March 27, 2012, the Debtors have been authorized to sell substantially all of their assets to BGC Partners, Inc. (the Purchaser ) and to assign certain contracts to be designated by the Purchaser. In connection with the Sale, the Purchaser will designate for assignment Contracts which it seeks to assume. Those Contracts which are not designated for assignment will not be needed by the Debtors as they wind down their affairs once the Sale to the Purchaser has been completed. Accordingly, and in order to avoid additional costs and expense to the Debtors, they have determined, in consultation with the Purchaser, to reject the Contract(s) identified in the Notice. Pursuant to 28 U.S.C. 1746 I declare under penalty of perjury that the foregoing is true and correct. Dated New York, New York August 24, 2012 /s/ Linda Duer LINDA DUER 2
12-10685-mg Doc Doc 8141481-3 Filed 03/23/12 Filed 08/24/12 Entered Entered 03/23/12 08/24/12 092054 125413 Main Document Order Entered March Pg 231 of 2012 6 Pg 1 of 6 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re Chapter 11 GRUBB & ELLIS COMPANY, et al., Case No. 12-10685 (MG) Debtors. (Jointly Administered) ORDER ESTABLISHING AND AUTHORIZING PROCEDURES FOR THE REJECTION OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES Upon the motion (the Motion ) 1, of the debtors and debtors in possession in the above-captioned cases (collectively, the Debtors or Grubb & Ellis ), for an order pursuant to sections 105, 365(a) and 554(a) of title 11 of the United States Code (the Bankruptcy Code ), requesting authorization to establish procedures for the rejection of executory contracts and unexpired leases (each a Contract and collectively, the Contracts ), all as more fully set forth in the Motion; and this Court having jurisdiction to consider the Motion and the relief requested therein; and it appearing that venue of this case and this Motion in this district is proper; and it appearing that this matter is a core proceeding pursuant to 28 U.S.C. 157(b); and the Court having found cause to shorten notice of the Motion and notice of the Motion having been provided to all parties entitled to receive such notice; and no other or further notice need be given; and the limited objection filed on behalf of Towers Crescent, LLC and Tycon Tower I Investment Limited Partnership (the Objection )
12-10685-mg Doc Doc 8141481-3 Filed 03/23/12 Filed 08/24/12 Entered Entered 03/23/12 08/24/12 092054 125413 Main Document Order Entered March Pg 232 of 2012 6 Pg 2 of 6 and upon the record of the hearing on the Motion and the Objection having been resolved; and this Court having determined that the relief requested in the Motion is in the best interests of the Debtors, their estates, their creditors, and other parties-ininterest; and after due deliberation thereon; and good and sufficient cause appearing therefor, it is hereby ORDERED, ADJUDGED, AND DECREED THAT 1. The Motion is GRANTED as provided herein. 2. The following procedures (the Rejection Procedures ) for the Debtors rejection of Contracts pursuant to section 365(a) of the Bankruptcy Code are hereby authorized and approved and established in the Debtors chapter 11 cases a. The Debtors will file on the docket for these chapter 11 cases a notice (the Rejection Notice ) and supporting declaration setting forth the proposed rejection of one or more Contracts, 2 and will serve the Rejection Notice and supporting declaration via Federal Express or other overnight mail delivery service, email or fax on (i) the non- Debtor counter party (and its counsel, if known) under the respective Contract at the last known address available to the Debtors; and (ii) counsel to the Creditors Committee (collectively, the Rejection Notice Parties ). b. The Rejection Notice shall be substantially in the form of Exhibit 1 annexed to the proposed order. The Rejection Notice shall set forth the following information, based on the best of the Debtors information (i) the street address of real property that is the subject of the Contract; (ii) the name and address of the affected non-debtor counter-party landlord. With respect to all other Contracts to be rejected, the Rejection Notice shall set forth the following information, based on the best of the Debtors information (i) the name and address of the Contract counterparty; and (ii) a brief description of the Contract to be rejected. All 1 Unless otherwise defined herein, all capitalized terms shall have the meanings ascribed to them in the Motion. 2 Consistent with Rule 6006(f) of the Bankruptcy Rules, however, no more than 100 unexpired Contracts will be contained on any one Rejection Notice. 2
12-10685-mg Doc Doc 8141481-3 Filed 03/23/12 Filed 08/24/12 Entered Entered 03/23/12 08/24/12 092054 125413 Main Document Order Entered March Pg 233 of 2012 6 Pg 3 of 6 Rejection Notices will be accompanied by a copy of the Order granting this Motion. c. Should a party in interest object to the Debtors proposed rejection of a Contract, such party must file and serve a written objection so that such objection is filed with this Court and actually received by the following parties (the Objection Notice Parties ) no later than fourteen (14) calendar days after the date the Rejection Notice is filed (i) counsel to the Debtors, Togut, Segal & Segal LLP, One Penn Plaza, Suite 3335, New York, New York 10119 (Attn Frank A. Oswald, Esq. and Jonathan P. Ibsen, Esq.); (ii) the U.S. Trustee, 33 Whitehall Street, 21 st Floor, New York, New York 10004 (Attn Susan Golden, Esq. and Nazar Khodorovsky, Esq.); and (iii) counsel to the Creditors Committee, Alston & Bird LLP, 90 Park Avenue, New York, New York 10016 (Attn Martin G. Bunin, Esq. and Craig E. Freeman, Esq.). d. If no objection to a Rejection Notice is timely filed and served, the applicable Contract shall be deemed rejected on the effective date set forth in the Rejection Notice, or, if no such date is set forth, the date the Rejection Notice is filed with the Court; provided however, that the effective date of the rejection of a Contract shall not occur until the later of (i) the date the Debtors file and serve a Rejection Notice, (ii) the date the Debtors surrender the premises under a lease for non-residential realproperty, by notifying the affected landlord in writing of the Debtors surrender of the premises and turning over the keys, key codes and security codes, if any, to the affected landlord, and (iii) the Collection Deadline, if applicable, expires (the Rejection Date ). e. If a timely objection to a Rejection Notice is filed and received in accordance with the Rejection Procedures, the Debtors shall schedule a hearing on such objection and shall provide at least seven calendar (7) days notice of such hearing to the objecting party and the Objection Notice Parties. If the Court ultimately upholds the Debtors determination to reject the applicable Contract, then the applicable Contract shall be deemed rejected (i) as of the Rejection Date, or (ii) as otherwise determined by the Court as set forth in any order overruling such objection. f. Claims arising out of the rejection of Contracts must be filed, on or before the later of (i) the deadline for filing proofs of claim established by the Court in the Debtors cases, or (ii) forty-five (45) days after the Rejection Date. If no proof of claim is timely filed, such claimant shall be forever barred from asserting a claim for rejection damages and from 3
12-10685-mg Doc Doc 8141481-3 Filed 03/23/12 Filed 08/24/12 Entered Entered 03/23/12 08/24/12 092054 125413 Main Document Order Entered March Pg 234 of 2012 6 Pg 4 of 6 participating in any distributions that may be made in connection with these chapter 11 cases. g. If the Debtors have deposited funds with a Contract counterparty as a security deposit or other arrangement, such Contract counterparty may not setoff or otherwise use such deposit without the prior authority of the Court or agreement of the parties. 3. Pursuant to section 365(a) of the Bankruptcy Code, the Debtors rejection of Contracts in accordance with the Rejection Procedures set forth in this Order is hereby approved and such Rejection Procedures shall govern the rejection of Contracts, except to the extent the Debtors and a Contract counterparty have agreed otherwise in writing, in which case the terms of such agreement shall govern the rejection of Contracts with respect to such counterparty. 4. Prior to and through the Rejection Date, the Debtors are authorized to remove, in their sole discretion, from premises that are the subject of any rejected Contract, consistent with the Debtors ownership rights or other property interests therein, any personal property that the Debtors have installed in or about the leased premises (such as equipment, fixtures, furniture, advertising displays and other personal property), which property is either owned by the Debtors, leased by the Debtors from third parties, or subject to any equipment financing agreements with third parties; provided, however, that the Debtors will not remove any property that is owned by an applicable landlord. 5. To the extent that the Debtors determine that property located at premises that are the subject of any rejected Contract has little or no value or that the preservation thereof will be burdensome to their estates compared with the expense of 4
12-10685-mg Doc Doc 8141481-3 Filed 03/23/12 Filed 08/24/12 Entered Entered 03/23/12 08/24/12 092054 125413 Main Document Order Entered March Pg 235 of 2012 6 Pg 5 of 6 removing and storing such property, the Debtors are authorized to abandon, in their sole discretion, such property as of the Rejection Date, pursuant to section 554 of the Bankruptcy Code. Property proposed to be abandoned shall be described with reasonable specificity in the applicable Rejection Notice. 6. No personal property subject to a true lease shall be abandoned without first rejecting the underlying lease for such property. If the Debtors propose to abandon personal property that is (i) subject to a true lease and (ii) located at a premises that is the subject of a Rejection Notice, such Rejection Notice shall indicate same, and the automatic stay shall be deemed modified to permit the respective personal property lessor to retrieve such abandoned property within seven (7) days of the date the Rejection Notice is filed (the Collection Deadline ). Any such Rejection Notice shall be served on the personal property lessor at the same time it is served on all Rejection Notice Parties. 7. Any property located on the premises of a Contract that is rejected in accordance with the terms hereof that is not retrieved by the later of the Rejection Date or the Collection Deadline shall be deemed abandoned pursuant to section 554 of the Bankruptcy Code without further order of this Court free and clear of any interests of any other party and any landlord or other designee shall be free to dispose of same without liability. 8. The Debtors are hereby authorized to execute and deliver all instruments and documents, and take such other actions, as may be necessary or 5
12-10685-mg Doc Doc 8141481-3 Filed 03/23/12 Filed 08/24/12 Entered Entered 03/23/12 08/24/12 092054 125413 Main Document Order Entered March Pg 236 of 2012 6 Pg 6 of 6 appropriate to implement and effectuate the Rejection Procedures as approved by this Order. 9. Entry of this Order is without prejudice to the rights of the Debtors, including, but not limited to, the right to seek further, other, or different relief regarding the Contracts pursuant to, among other things, section 365 of the Bankruptcy Code. Notwithstanding the relief granted herein and any actions taken hereunder, nothing in the Motion or this Order shall constitute, nor is it intended to constitute (i) an admission as to the validity or priority of any claim against the Debtors; (ii) a waiver of the Debtors rights to dispute any claim; or (iii) an assumption or adoption of any Contract pursuant to section 365 of the Bankruptcy Code. 10. This Court shall retain jurisdiction to hear and determine all matters arising from or related to the implementation, interpretation and/or enforcement of this Order. Dated New York, New York March 23, 2012 /s/martin Glenn MARTIN GLENN United States Bankruptcy Judge 6