Case Doc 197 Filed 12/05/12 Entered 12/05/12 14:27:46 Desc Main Document Page 1 of 5

Transcription

1 Document Page 1 of 5 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF MASSACHUSETTS EASTERN DIVISION In re: THE UPPER CRUST, LLC, ET AL., 1 Debtor. CHAPTER 11 CASE NO HJB (Jointly Administered NOTICE OF INTENT TO SELL ASSETS BY PUBLIC AUCTION FREE AND CLEAR OF LIENS, CLAIMS, ENCUMBRANCES AND INTERESTS, DEADLINE FOR SUBMITTING BIDS, OBJECTIONS, AND HEARING DATE To Creditors and Parties in Interest: PLEASE TAKE NOTICE THAT, pursuant to an Order of the Court, dated December 5, 2012 (the Procedures Order a public auction (the Auction based on the motion (the Sale Motion, dated November 28, 2012, filed by Mark G. DeGiacomo, Chapter 11 Trustee (the Trustee for The Upper Crust, LLC, et al, and its affiliated debtors (collectively, the Debtors seeking, among other things, entry of Orders authorizing and approving the sale by public auction of substantially all of the bankruptcy estates assets free and clear of liens, claim, interests and encumbrances (the Assets ; and authorizing and approving assumption and assignment of executory contracts and unexpired leases shall be conducted at the Hilton Boston Logan Airport Hotel, on Wednesday, December 19, 2012 at 10:00 a.m. (EST (the Auction Date. All prospective bidders that are Qualified Bidders (as defined in the Bidding 1 The other cases jointly administered with the case of Upper Crust, LLC ("Upper Crust" are The Upper Crust Back Bay, LLC (Case No ("Upper Crust Back Bay", The Upper Crust Fenway, LLC (Case No ("Upper Crust - Fenway", The Upper Crust Harvard Square, LLC (Case No ("Upper Crust Harvard", The Upper Crust Hingham, LLC (Case No ("Upper Crust Hingham", The Upper Crust Lexington, LLC (Case No ("Upper Crust Lexington", The Upper Crust State Street, LLC (Case No ("Upper Crust State Street", The Upper Crust South End, LLC (Case No ("Upper Crust South End", The Upper Crust Pennsylvania Avenue, LLC (Case No ("Upper Crust Penn. Av.", The Upper Crust DC, LLC (Case No ("Upper Crust DC", The Upper Crust Waltham, LLC (Case No ("Upper Crust Waltham", The Upper Crust Watertown, LLC (Case No ("Upper Crust Watertown", The Upper Crust Wellesley, LLC (Case No ("Upper Crust Wellesley" and JJB Hanson Management, Inc. (Case No ("JJB". Upper Crust Back Bay, Upper Crust Fenway, Upper Crust Harvard, Upper Crust Hingham, Upper Crust Lexington, Upper Crust State Street, Upper Crust South End, Upper Crust Penn. Av., Upper Crust Waltham, Upper Crust Watertown and Upper Crust Wellesley are collectively termed the "Stores" herein. Upper Crust, Upper Crust DC, JJB and the Stores are collectively termed the "Debtors herein v1

2 Document Page 2 of 5 Procedures may bid and participate at the Auction pursuant to the terms of the Court-approved Bidding Procedures. 2 PLEASE TAKE FURTHER NOTICE THAT pursuant to Section 363 of the Bankruptcy Code, the Assets will be sold free and clear of all liens, claims, interests and encumbrances, including without limitation all consensual liens and security interests and all liens or claims arising by operation of law. Any and all such liens, claims, encumbrances and interests shall attach to the proceeds of the Auction to the same extent and priority as existed prior to the filing of the bankruptcy proceedings. Nothing in this Notice constitutes a waiver of the Trustee s right to review and challenge the extent, priority or validity of any lien, claim, encumbrance or interest. PLEASE TAKE FURTHER NOTICE THAT in connection with the Auction and pursuant to the Sale Motion, the Trustee proposes to assume and assign to the successful bidder or bidders (the Successful Bidder, certain unexpired nonresidential real property leases and personal property leases (collectively the Leases in accordance with the terms set forth in Sale Motion, including relief from certain provisions in the Leases referenced in the Sale Motion. By separate notice ( Cure Notice to non-debtor counterparties to the Leases, the Trustee will set forth the amounts, if any, that the Trustee asserts would be required to be paid to cure ( Cure Amount any monetary default of the Leases. PLEASE TAKE FURTHER NOTICE THAT A HEARING ON THE SALE MOTION AND AUCTION WILL BE HELD ON DECEMBER 27, 2012 at 10:00 a.m. (EST (the Sale Hearing before the Honorable Henry J. Boroff, United States Bankruptcy Judge, United States Bankruptcy Court for the District of Massachusetts, at 300 State Street, Springfield, MA at which time the Trustee will seek approval of the Sale Motion. The Assets subject to the Sale Motion consist of the following: The Assets consist of the assets associated with the Debtors leased commercial restaurant locations and commissary (collectively, the Locations, and individually, the Location including: 3 (i Leases 4 : leasehold interests in unexpired leases of non-residential real property from which the Locations and Commissary operated and personal property leases relative to equipment used at certain of the Locations. 2 Capitalized terms used herein, not otherwise defined in this Notice, shall have the meaning ascribed them in the Sale Motion or the Bidding Procedures. 3 The Trustee reserves the right to reject any executory contracts or unexpired leases of nonresidential real property at any time prior to the Sale Hearing. In such an event, the Assets to be sold pursuant to the Sale Motion shall not include the Leases, FF&E or Inventory associated with such rejected Locations, but may include the Licenses associated with such rejected Locations. 4 See Attachment A for a description of the leased locations v1 2

3 Document Page 3 of 5 (ii FF&E: All owned furniture, fixtures, equipment, and decorations ( FF&E exclusive of any leased FF&E at each Location; (iii Inventory: Any other owned personal property of any kind located at the Locations including any inventory, china, glassware, silver, supplies, paper products, and nonperishable food and unopened liquor that is present at the Locations as of the Closing Date ( Inventory ; and (iv Licenses 5 : All of the Debtors right, title and interest in and to any licenses, authorizations, permits or consents necessary or required for operation of a restaurant and/or bar at the Locations such as common victualer, liquor, and hospitality licenses, permits or consents ( Licenses. The Trustee may also solicit bids for any Licenses relating to a Location for which the Lease has been rejected. (v Other Assets: Any other asset which is determined to be property of the bankruptcy estate except the Excluded Assets as defined in the Sale Motion. BID AND SALE PROCEDURES BIDS FOR ALL OR A PORTION OF THE ASSETS ARE HEREBY SOLICITED. If you wish to bid on the Assets, you must comply with the terms and conditions in the Bidding Procedures. In summary, any bid must be accompanied by the requisite Deposit and otherwise be a Qualified Bid and received by Trustee s undersigned counsel on or before Monday, December 17, 2012 at Noon (EST (the Bid Deadline. FURTHER, in the event the party or parties who submits the highest and best Bid for all or any one of the Assets fails to close on the sale of such Assets, the Deposit submitted by such party shall be forfeited to the Trustee and the Trustee may, at his election, sell the respective Asset to the next highest bidder without further order of the Court, in which case the second highest bidder shall be obligated to close in accordance with the terms of the Bidding Procedures. ANY OBJECTION to the Sale Motion, with the exception of objections concerning the adequate assurance of future performance and/or the proposed use of the premises by the Successful Bidder, must be made in writing, filed with the Clerk by December 17, 2012 at Noon (EST (the Pre-Auctions Objection Deadline and served so that the objection is received on or before the Pre-Auctions Objection Deadline by (i Trustee s counsel, Thomas S. Vangel, Esq., Murtha Cullina LLP, 99 High Street, Boston, MA ; and (ii the Office of the United States Trustee, J.W. McCormack Post Office & Court House, 5 Post Office Square, Massachusetts (collectively the Notice Parties. Any party filing an objection to the Sale Motion is required to appear at the Sale Hearing and absent such appearance, such objection shall be overruled and deemed moot. Any objection to the Sale Motion shall be governed by Fed. R. Bankr. P See Attachment A for a description of the licenses v1 3

4 Document Page 4 of 5 IF YOU FAIL TO RESPOND IN ACCORDANCE WITH THIS NOTICE, THE COURT MAY GRANT THE RELIEF REQUESTED IN THE SALE MOTION WITHOUT FURTHER NOTICE TO YOU OR OPPORTUNITY TO OBJECT. Any questions concerning the Sale Motion should be addressed to the undersigned counsel to the Trustee. The Sale Motion is on file at the Clerk s Office of the United States Bankruptcy Court, Federal Building and Courthouse, 300 State Street, Springfield, MA and is available for inspection during regular business hours. Copies of the Sale Motion may also be obtained, upon written request, from the undersigned counsel to the Trustee. Respectfully submitted, MARK G. DEGIACOMO, CHAPTER 11 TRUSTEE OF THE ESTATE OF THE UPPER CRUST, LLC, ET AL. By his attorneys, Dated: December 5, 2012 /s/ Thomas S. Vangel Mark G. DeGiacomo, Esq. - BBO # Thomas S. Vangel, Esq. BBO # Murtha Cullina LLP 99 High Street Boston, MA Telephone Facsimile mdegiacomo@murthalaw.com tvangel@murthalaw.com v1 4

5 Document Page 5 of 5 ATTACHMENT A Leases Location Location Address Landlord Back Bay 222 Newbury Street, Boston, MA C. Talanian Realty Co. Commissary 55 Food Mart Road, Boston, MA Cara Donna Provision Co., Inc. Fenway 1330 Boylston Street, Boston, MA Samuels & Associates 6 Harvard Sq 49B Brattle Street, Harvard Square, Cambridge, MA Myer Dana and Sons, Inc. Hingham 73 South Street, Hingham, MA JAL Realty Lexington 41 Waltham Street, Lexington, MA Cambridge First Realty South End 638 Tremont Street, Boston, MA Theodore and Efthimia Persiridis State Street 107 State Street, Boston, MA BBS Real Estate Group LLC Washington DC 1747 Pennsylvania Ave NW, Washington DC Tishman Speyer Watertown 94 Main Street, Watertown, MA Myer Dana and Sons, Inc. Wellesley 99 Central Street, Wellesley, MA The Bulfinch Companies, Inc. Licenses Location Back Bay Fenway South End Washington, DC Watertown Liquor License Type Restaurant D Sidewalk Café Common Victular Wine & Malt Beverages 6 The Harvard Square liquor license is non-transferable v1