Document Page 1 of 8 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF MASSACHUSETTS (EASTERN DIVISION) ) In re: ) ) THE UPPER CRUST, LLC, et al ) CHAPTER 11 ) CASE NO. 12-18134-HJB Debtors. ) (Jointly Administered) ) CERTIFICATE OF SERVICE I, Thomas S. Vangel, hereby certify that on the 5 th day of December, 2012 I served a copy of the following pleadings, via first-class mail, postage prepaid or by electronic mail upon the parties listed on the attached Service List: Notice of Intent to Sell Assets by Way of Public Auction Free and Clear of Liens, Claims, Encumbrances and Interests, Deadline for Submitting Bids, Objections and Hearing Date; Notice of (1) Proposed Assumption and Assignment of Executory Contracts and Non-Residential Real Property Leases, (2) Requested Relief from Certain Provisions in Non-Residential Real Property Leases and (3) Amounts Necessary to Cure Defaults Under Executory Contracts and Non-Residential Real Property Leases in Conjunction with Sale of Certain Assets; and Public Auction Schedule and Bidding Procedures. /s/ Thomas S. Vangel Thomas S. Vangel, Esq. BBO #552386 Murtha Cullina LLP 99 High Street 617-457-4000 Telephone 617-482-3868 Facsimile tvangel@murthalaw.com
Document Page 2 of 8 John Fitzgerald, Asst. U.S. Trustee* Jennifer L. Hertz, Esq. McCormack Post Office & Courthouse 5 Post Office Sq., 10th Fl, Suite 1000 Boston, MA 02109 Daniel S.Bleck, Esq.* Steven Ford, Esq.* Richard E. Mikels, Esq.* (Attorney for Jordan Tobins) Mintz, Levin One Financial Center Boston, MA 02111 Peter Cole, Esq.* (Attorney for Creditors) Law Office of Peter Cole 183 Harvard Avenue, Suite 2A Allston, MA 02134 Honor S. Heath, Esq.* (Attorney for NSTAR) Northeast Utilities Service Company 107 Selden Street Berlin, CT 06473 Shannon Liss-Riordan, Esq.* (Attorney for Class Action Plaintiffs) Licthen & Liss-Riordan, P.C. 100 Cambridge Street, 20 th Floor John M. McAuliffe, Esq.* (Attorney for Ad-Vantage, Inc.) McAuliffe & Associates, P.C. 430 Lexington Street Newton, MA 02466 Laura Otenti, Esq.* (Attorney for 222-232 Newbury Street Posternak Blankstein & Lund LLP Prudential Tower 800 Boylston Street Boston, MA 02199 Stephen C. Reingold, Esq.* Nicholas J. Rosenbeg, Esq.*, Bruce F. Smith, Esq.* (Attorney for The Official Committee of Unsecured Creditors) Jager Smith P.C. One Financial Center Boston, MA 02111 Kathleen Rahbany, Esq.* Craig & Macauley, PC 600 Atlantic Avenue Boston, MA 02210 Jager Smith P.C Jenette A. Barrow-Boshart, Esq.* (Attorney for The Official Committee of Unsecured Creditors) One Financial Center Boston, MA 02111 Richard E Briansky, Esq.* (Attorney for ZVI Construction Co., LLC) Prince, Lobel, Glovsky & Tye LLP 100 Cambridge Street, Suite 2200 John C. Elstad, Harold B. Murphy, Esq.* Natalie B. Sawyer, Esq.* (Attorney for Debtor) Murphy & King, P.C. One Beacon Street Boston, MA 02108 Walter M. Lupan, Esq.* (Attorney for TD Bank) Grassia, Murphy & Lupan, P.A. 5 Commonwealth Avenue Natick, MA 01760 William R. Moriarty, Esq.* (Attorney for L.C. Anderson, Inc.) Sassoon & Cymrot, LLP 84 State Street, Suite 820 Boston, MA 02109 Christopher J. Panos, Esq.* Kathleen Rahbany, Esq.* (Attorneys for Ditmars) Craig and Macauley, P.C. 600 Atlantic Avenue Boston, MA 02210 Philip C. Silverman, Esq.* (Attorney for Watertown Landlord) Anderson Aquino LLP 240 Lewis Wharf Davis Whitesell, Esq.* (Attorney for ZVI Construction) Casner & Edwards, LLP 303 Congress Street Boston, MA 02210 Francis C. Morrissey, Esq.* (Attorney for Lexington Landlord) Morrissey & Wilson 35 Braintree Hill Office Park Suite 404 Braintree, MA 02184 The Upper Crust, LLC 55 Foodmart Road Boston, MA 02118 Stephen Churchill, Esq.* (Attorney for Class Action Plaintiffs) Litchten & Liss-Rordan, P.C. 100 Cambridge Street, 20 th Floor Michael J. Goldberg, Esq.* Davis Whitesell, Esq.* (Attorney for ZVI Construction Co., LLC) Casner & Edwards, LLP 303 Congress Street Boston, MA 02210 Kelly M. Lawson, Esq.* (Attorney for U.S. Dept. of Labor) U.S. Department of Labor Office of the Solicitor JFK Federal Building, Room E-375 Boston, MA 02203 Christine D. Lynch, Esq.* Vanessa Peck, Esq.* (Attorney for 1330 Boylston St Properties) Goulston & Storrs, PC 400 Atlantic Avenue Andrew M. Osborne, Esq.* (Attorney for Theodore J. Katsiroubas) Osborne & Fonte 20 Eastbrook Road, Suite 304 Dedham, MA 02026 Michael J. Powers, Esq.* (Attorney for Cara Donna Provision Co.) Powers Law Offices, P.C. 470 Washington Street, Suite 29 Norwood, MA 02062 Gianfranco Finizio, Esq.* Otterbourg, Steindler Houston & Rosen 230 Park Avenue New York, NY 10169 Donald F. Farrell, Jr., Esq.* (Counsel to BBS Real Estate Group) Anderson Aquino LLP 240 Lewis Wharf
Document Page 3 of 8 Joseph S.U. Bodoff, Esq.* (Attorney for Harvard Sq. Landlord) Mintz, Levin, Cohn One Financial Center Boston, MA 02111 Nina M. Parker, Esq.* Kate E. Nicholson, Esq.* (Counsel to Joshua Huggard) Parker & Associates 10 Converse Place Winchester, MA 01890 Gary W. Cruickshank, Esq.* (Counsel to Brendan Higgins) 21 Custom House Street, Suite 920 1330 Boylston Street LLC 180 Brookline Avenue 2nd Floor-MGT. Office Boston, MA 02215 Arbella Insurance P.O. Box 371343 Pittsburgh, PA 15250 Marcel S. Safar, Esq. (Attorney for BBS Real Estate Group LLC) 109 State Street, Third Floor Boston, MA 02109 BBS Real Estate Group, LLC c/o Marcel D. Safar 109 State Street, Third Floor Boston, MA 02109 BEACON HILL PLUMBING & HEATING INC. 56 Myrtle Street Atlas Granite 4 Windham Depot Road Unit #5 & 6 Derry, NH 03038 Jason Webber, Esq. (Attorney for Wellesley Landlord) Nathanson & Goldberg 2 Atlantic Avenue, 5 th Floor Andrew B. Schulwolf, Esq. (Attorney for Washington DC Landlord) 2273 Research Boulevard, Suite 200 Rockville, Maryland 20850 BECKETT BOWL c/o The Josh Beckett Foundation 3 Boylston Place, #3R Boston, MA 02116 Donald F. Farrell, Esq. (Attorney for State Street Landlord) Anderson Aquino LLP 240 Lewis Wharf Cara Donna Provision Co., Inc. Attn: Christopher M. Cara Donna 200 Commerce Drive Braintree, MA 02184 James F. Wallach, Esq. (Attorney for Fenway Landlord) Goulston & Storrs PC 400 Atlantic Avenue Cara Donna 200 Commerce Drive Braintree, MA 02184 Centralized Insolvency Operation Internal Revenue Service P.O. Box 7346 Philadelphia, PA 19101 CCR LLP 1400 COMPUTER DRIVE Westborough, MA 01581 CeilingPro 802 Main Street Warren, RI 02885 City of Cambridge 21 Proof 51 Inman Street Cambridge, MA 02139 Carmen M. Ortiz, U.S. Attorney U.S. Court House, Suite 9200 One Court House Way Boston, MA 02210 Charles Street Supply 54-56 Charles Street Supply Comcast P.O. Box 1577 Newark, NJ 07101 Certified Rest. Equipment 45 Industral Road Suite 108 Cumberland, RI 02861 City of Cambridge P.O. Box 399113 Cambridge, MA 02139 Communique One Dell Road Stanhope, NJ 07874 City of Boston P.O. Box 55801 Boston, MA 02205
Document Page 4 of 8 Coca-Cola Refreshments USA Inc. P.O.Box 100712 Atlanta, GA 30384 Dan's Service Inc. P.O. Box 222 Somerville, MA 02143 City of Waltham P.O. Box 540613 Waltham, MA 02454 Commonwealth of Massachusetts Division of Employment & Training Attention: Chief Counsel Hurley Building - Government Center ECHO 22168 Network Place Chicago, IL 60673 Commercial Claims Inc. 1901 Park Drive Kansas City, KS 66117 Coyle Detergent Service 200 Weymouth Street Rockland, MA 02370 Fast Lane Violation Processing Center P.O. Box 8001 Auburn, MA 01501 Cooley Manion Jones LLP Attn: Thomas F. Reilly 21 Custom House Street Boston, MA 02210 E.F. Smith & Sons 80 Myrtle Street North Quincy, MA 02171 Going Clear 2 Canal Park 5th Floor Cambridge, MA 02141 Dickson Bros. True Value 26 Brattle Street Cambridge, MA 02138 Fantasy Wines Corp 328 Commercial Street Boston, MA 02119 Harvard Pilgrim Healthcare P.O. Box 970050 Boston, MA 02297 Eastern Bakers Supply Co Inc. 133-135 North Washington Street Glenn Kelley One Hollis Street Suite #434 Wellesley, MA 02482 Integrated Insurance Solutions 1881 Worcester Road Suite #101 Framingham, MA 01701 Food Pro P.O. Box 698 Frederick, MD 21705 Guide Magazines LLC 332 Congress Street Boston, MA 02210 KATSIROUBAS & SONS INC. 40 Newmarket Square Boston, MA 02118 Grainger Dept. 861160141 Palatine, IL 60038 Instant Sign Center 508 Boston Providence Turnpike Norwood, MA 02062 M.S. Walker Inc. 20 Third Avenue Somerville, MA 02143 Independent Newspaper Group LLC P.O. Box 380 385 Broadway Revere, MA 02118 J.A.L. Realty LLC P.O. Box 692 Hingham, MA 02043 MBA 135 Wood Road Braintree, MA 02184 Internal Revenue Service James Spinale, MS 20800 JFK Federal Building PO Box 9112 Boston, MA 02203
Document Page 5 of 8 Lenox-Martel Inc. 89 Heath Street Boston, MA 02130 Mass. Avenue Sunoco 895 Mass. Avenue Boston, MA 02118 L. C. Anderson Inc. 15 Soldiers Field Place Boston, MA 02135 MASSDOT TMB Violations Office 145 Havre Street East Boston, MA 02128 Morris Visitor Publications LLC P.O. Box 1584 Augusta, GA 30903 MASS. DOR-MEALS TAX P.O Box 7010 Boston, MA 02204 Mario's Roofing Inc. 158 Pearl Street Stoughton, MA 02072 NTN Buzztime Inc. c/o Wells Fargo Bank Dept. 1088 Los Angeles, CA 90084 MRES 34 South Street Somerville, MA 02143 Morgan Brown & Joy LLP 200 State Street Boston, MA 02109 O'NEILL AND ASSOCIATES 31 New Chardon Street Mass. Department of Transportation TMB Violations Office 145 Havre Street East Boston, MA 02128 NSTAR-GAS P.O. Box 660369 Dallas, TX 75266 Pepco P.O. BOX 13608 Philadelphia, PA 19101 NSTAR P.O. Box 660369 Dallas, TX 75266 New England Ice Cream 555 Constitution Drive Taunton, MA 02780 Robert Oxygen Company Inc. 15830 Redland Road Rockville, MD 20855 National Grid 300 Erie Blvd. West Syracuse, NY 13202 One Communications 2150 Holmgren Way Green Bay, WI 54304 SAS 67 Pleasant Street Watertown, MA 02472 Office of the Attorney General Commonwealth of Massachusetts Consumer Protection Division One Ashburton Place Boston, MA 02108 Retail Control Solutions Inc. 460 Hillside Ave. Lower Level Needham, MA 02494 Securities & Exchange Commission 450 Fifth Street, NW Washington, DC 20549 Phantom Gourmet P.O. Box 269 47 Harvard Avenue Allston, MA 02134 Ryder Transportation Services P.O. Box 96723 Chicago, IL 60693 Sovereign Bank P.O. Box 12707 Reading, PA 19612 Roto-Rooter 5672 Collection Center Drive Chicago, IL 60693
Document Page 6 of 8 Secretary of State One Ashburton Place 17th floor Boston, MS 02108 The Boston Courant P.O. Box 17108 Back Bay Station Boston, MA 02117 Safety Insurance P.O. Box 371312 Pittsburgh, PA 15250 Siskind & Siskind LLC 360 Belmont Street Brockton, MA 02301 The Improper Bostonian 142 Berkeley Street 3rd Floor Boston, MA 02116 Securities and Exchange Commission Boston District Office 33 Arch Street 23rd Floor TCF Equipment Finance Inc. P.O. Box 77077 Minneapolis, MN 55480 Town of Wellesley P.O. Box 2080 Tarrytown, NY 10591 Staples, Inc 1 Environmental Way Broomfield, CO 80021 The Hartford P.O. Box 2907 Hartford, CT 06104 Trinet Systems Inc. P.O. Box 56346 Atlanta, GA 30343 The Boston Globe P.O. Box 415071 Boston, MA 02241 Town of Watertown P.O. Box 2064 Tarrytown, NY 10591 United Social Sports Inc. 315 Evarts Street NE #111 Washington, DC 20002 Theodore Pesiridis 6 Elliston Road Weston, MA 02493 Travelers Integrated Insurance Solutions Travelers CL Remittance Center P.O. Box 660317 Dallas, TX 75266 Verizonwireless P.O. Box 15062 Albany, NY 12212 Toyota Financial Services Inc. ATTN: Business Solutions Group P.O. Box 9490 Cedar Rapids, IA 52409 UNIFIRST CORPORATION 78-80 East Cottage Street Dorchester, MA 02125 W.B. Mason P.O. Box 981101 Boston, MA 02298 U. S. Department of Labor Hilda Solis, Secretary Office of the Regional Solicitor JFK Federal Building - Room E-375 Boston, Massachusetts 02203 Verizon-DC P.O. Box 660720 Dallas, TX 75266 Washingtonian 1828 L Street NW Suite #200 Washington, DC 20036 Verizon P.O. Box 1100 Albany, NY 12250 W. L. Gary Company Inc. 225 Vine Street NW Washington, DC 20012 ABC Disposal Service Inc. 1245 Shawmut Avenue New Bedford, MA 02745 Virginia Linen Service 6101 Sheriff Road Capital Heights, MD 20743
Document Page 7 of 8 Washington Gas 101 Constitution Avenue NW Washington, DC 20080 ALPHA FLOOR SANDING INC. 32 Murray Hill Road Roslindale, MA 02131 WCVBTV/DT P.O. Box 26874 Lehigh Valley, PA 18002 ZVI Construction Company, LLC 131 Brookline Street Brookline, MA 02446 All Systems Mechanical 23 Bay State Road Rehoboth, MA 02769 Waste Management P.O. Box 13648 Philadelphia, PA 19101 ADT Security Systems 14200 E. Exposition Avenue Aurora, CO 80012 Boston Lock & Safe Company Inc. 30 Lincoln Street Boston, MA 02135 ACE American Insurance Co. Dept. 90024 P.O. Box 660347 Dallas, TX 75266 Advantage Inc. AD-Vantage Inc. 430 Lexington Street Newton, MA 02466 CANON FINANCIAL SERVICES INC. 14904 Collections Center Drive Chicago, IL 60693 Advanced Graphics Inc 470 Washington Street Suite #25 Norwood, MA 02062 BURKE ELECTRIC 273 Winter Street Hanover, MA 02339 Cintas P.O. Box 630803 Cincinnati, OH 45263 Allied Waste 320-A Charger Street Revere, MA 02151 Brookline Parking Brookline Town Hall 333 Washington Street Brookline, MA 02445 Amabile & Burkly P.C. 380 Pleasant Street Brockton, MA 02301 Brookline Chamber of Commerce 251 Harvard Street Suite 1 Brookline, MA 02446 The Landlords Samuels & Associates (Fenway Landlord) 333 Newbury Street Boston, MA 02115 JAL Realty (Hingham Landlord) 82 Broad Street Box 318 Cambridge First Realty Co. (Lexington Landlord) 907 Massachusetts Avenue Cambridge, MA 02139 Cara Donna Provision Co., Inc. (Foodmart-Commissary Landlord) 200 Commerce Drive Braintree, MA 02184
Document Page 8 of 8 Theodore and Efthimia Pesiridis (South End Landlord) 6 Elliston Road Weston, MA 02493 BBS Real Estate Group LLC (State Street Landlord) 109 State Street, 3 rd Floor Boston, MA 02109 Chrisytopher Uhl 73 Sears Road Southborough, MA 01772 Myer Dana and Sons, Inc. (Watertown Landlord) 1340 Centre Street, Suite 101 Newton, MA 02459 The Bulfinch Companies, Inc. (Wellesley Landlord) First Needham Place 250 First Avenue, Suite 200 Needham, MA 02494 Myer Dana & Sons, Inc. (Harvard Square Landlord) 1340 Centre Street, Suite 101 Newton, MA 02459 Tishman Speyer (Washington DC Landlord) 1730 Pennsylvania Avenue NW Washington, DC 20006 C. Talanian Realty Co. (Newbury Street Landlord) 137 Newbury Street, 9 th Floor Boston, MA 02116 *served by electronic transmission
Case 12-18134 Doc 199-1 Filed 12/05/12 Entered 12/05/12 14:30:53 Desc Bidding Procedures Page 1 of 7 PUBLIC AUCTION SCHEDULE 1. Service of Notice of Public Auctions, Deadline for Submission of Bids, Objections to Public Auctions, and Cure Statements and Service of Cure Notice Date: December 5, 2012 2. Deadline for Filing (i) All Bids for Assets and (ii) Objections to Public Auctions and (iii) Cure Statements Schedule: Date complete: Two (2) days prior to Public Auctions Monday, December 17, 2012 at Noon 3. Public Auctions Date: Location: Wednesday, December 19, 2012 at 10:00 a.m. Hilton Boston Logan Airport 4. Notice to Landlords Regarding Successful Bidder or Successful Bidders Date: Within 24 hours of completion of auction 5. Objection Deadline Regarding Adequate Assurance and Propose Use Date: Wednesday, December 26, 2012 at noon 6. Hearing on Public Auctions ("Auctions Hearing") Date: December 27, 2012 at 10:00 a.m. 7. Closing Date with Successful Bidder(s) By Monday, December 31, 2012 unless extended by agreement of Trustee 4229431v1
Case 12-18134 Doc 199-1 Filed 12/05/12 Entered 12/05/12 14:30:53 Desc Bidding Procedures Page 2 of 7 PUBLIC AUCTION BIDDING PROCEDURES The following procedures ("Bidding Procedures") shall govern the public auctions (the "Public Auctions") of certain assets of Upper Crust, LLC. and its affiliated companies (collectively, the "Debtors"). These Bidding Procedures have been approved and authorized by the United States Bankruptcy Court for the District of Massachusetts by an Order dated December 5, 2012 (the "Bidding Procedures Order") in the Chapter 11 cases of the Debtors. 1. Property to Be Sold. Pursuant to the Public Auctions, the Trustee has requested bids for the following: 2. Assets. The sale of the assets (the "Assets") associated with ten (10) leased restaurant locations and the commissary location (the "Locations"). (a) Leases: The assumption and assignment of non-residential real property leases for each Location 1 and certain personal property leases ("Leases"); or (b) Personal Property: The sale of any and all of the following located on or associated with a Location including: i. All owned furniture, fixtures, equipment, and decorations ("FF&E"); ii. Any other owned personal property of any kind located on the Location including any inventory, china, glassware, silver, supplies, paper products, non perishable food and unopened liquor that is present on the Location as of the Closing Date ("Inventory"); and iii. All of the bankruptcy estate s right, title and interest in and to any licenses, permits or consents necessary or required for operation of a restaurant and/or bar at the Location such as victualer's, liquor, and hospitality licenses, authorizations, permits or consents ("Licenses"). The Trustee will reasonably cooperate with the transfer and/or assignment of any Licenses for a Location, provided however, that in no event shall (i) the sale of a Location be contingent on the receipt of any approvals or permits for the transfer of the Licenses or (ii) the Trustee be required to expend any money, attend any hearings or other take any actions in furtherance of the transfer or assignment of any Licenses other than execute the required transfers and assignment documents. iv. Any other personal property or asset designated by the Trustee that is property of the bankruptcy estate. 3. Trustee s Business Judgment: The sales of the Locations are subject to a 1 The Trustee reserves the right to reject any executory contract or unexpired lease of nonresidential real property or personal 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. 4229431v1 2
Case 12-18134 Doc 199-1 Filed 12/05/12 Entered 12/05/12 14:30:53 Desc Bidding Procedures Page 3 of 7 determination by the Trustee, of which entity or entities have submitted the highest and best bid or bids in accordance with the procedures set forth herein. 4. Condition of Assets. The Locations shall be transferred on an "as is" and "where is" basis, without any representations or warranties of any kind whatsoever. 5. Property Expressly Excluded From Public Auctions. (a) In general: In addition to the Trustee s request to conduct the Public Auctions with reserve including the reservation by the Trustee of the right to reject any bid or remove any asset at any time prior to the entry of the Sale Order, the Trustee does not intend to and is expressly not requesting authority to sell any of the foregoing: i. Any and all cash in the Debtors or the bankruptcy estate s bank accounts and/or cash equivalents including any of the foregoing located at any Location; thereof; ii. iii. Any accounts receivable due to the Debtors; Any capital stock held by any of the Debtors or any affiliate iv. All rights, demands, claims, action and causes of action that the Trustee may have against any third party, including but not limited to, claims arising under Chapter 5 of the Bankruptcy Code; v. All rights, demands, claims, action and causes of action that the Trustee may have against any third party for refund or credit with respect to any taxes; vi. All loans owed to any of the Debtors by any third party including any employee, or director of any of the Debtors and any intercompany loans; vii. Each of the Debtors' company seals, minute books, charter documents, stock or equity record books and such other books and records as pertain to the organization, existence or capitalization of the Debtors; and viii. Any and all policies of insurance and proceeds thereof. (b) Assets: Pursuant to the Public Auctions of the Assets, the Trustee is expressly not seeking to sell, transfer and/or assign any interest in and/or the right to the use of the Upper Crust trade names. The Successful Bidder (as defined herein) for a Location must remove any and all exterior Upper Crust trade names from a Location within thirty (30) days of the Closing Date (as defined herein) unless other arrangements are made in writing. 6. Qualified Bidders. 4229431v1 3
Case 12-18134 Doc 199-1 Filed 12/05/12 Entered 12/05/12 14:30:53 Desc Bidding Procedures Page 4 of 7 (a) A potential bidder that satisfies the following requirements, and that the Trustee determines, in his sole discretion, is reasonably likely to be able to consummate a purchase of one or more of the Locations shall be considered a "Qualified Bidder". (b) No bid for a Location will be considered unless prior to or in conjunction with making such bid, the bidder delivers the following items to the Trustee's counsel, Murtha Cullina LLP, 99 High Street,, Attn. Thomas S. Vangel, Esquire, with copies to (i) DJM Realty Services, LLC, 445 Broadhollow Road, Suite 225, Melville, NY 11747, Attn: James Avallone, on or before the Initial Bid Deadline: i. A written offer for the purchase of one or more of the Locations that must include and separately allocate the amount being offered for each Location; ii. A completed and executed "Bidder Information Sheet and Acknowledgment of Terms of Public Auctions" (to be provided upon request) in a form and substance satisfactory to the Trustee in his sole discretion, including, among other things, (1) the identity of the bidder with contact information and full disclosure of any affiliates or insiders of the Debtors involved in such bid (2) stating the form of Deposit (i.e. cashier's check or cash); (3) acknowledgment that such bid shall be irrevocable until the Successful Bidders are determined or until the applicable Locations are removed from the Auctions; (4) acknowledgement that in the event the bidder is determined to be the successful bidder for any Location and fails to close on the sale of such Locations, the Deposit submitted by such party shall be forfeited to the Trustee; (5) agreeing that if such bid is determined to be the Second Highest Bid (as defined herein) for the Location such bid shall be binding and irrevocable until 15 business days after the entry of the Sale Order (as defined herein); (6) acknowledgment of and agreement to be bound by the terms and conditions of the Bidding Procedures; and (7) consent to the jurisdiction of the United States Bankruptcy Court to enter final orders/final judgments concerning any matters related in any way to the Bidder, whether in respect of the instant sale of Assets or any other matter that may arise under or is related to the bankruptcy case in any way. iii. Written evidence of a commitment for financing or other evidence of ability to consummate the transaction (such as a current audited financial statement or bank account statement) and evidence of adequate assurance of future performance in a form and substance satisfactory to the Trustee in his sole discretion; iv. Evidence that the potential bidder has the necessary internal authorizations and approvals to engage in the transaction without the consent of any entity that has not already been obtained. v. Deposits: A deposit in the amount of the greater of (i) $25,000 or (ii) 10% of the amount offered for each Location on which the Bidder submits a bid (the "Deposit"); the Deposit shall be made by cashier's check payable to the Trustee. The Trustee shall hold in escrow the Deposit of the first highest and best Bidder and the Deposit of the Second Highest Bidder (as defined herein) until the earlier to occur of: (i) the Closing, or (ii) 4229431v1 4
Case 12-18134 Doc 199-1 Filed 12/05/12 Entered 12/05/12 14:30:53 Desc Bidding Procedures Page 5 of 7 thirty (30) days following the last date of the Auctions Hearing, as adjourned; the Trustee shall return the Deposits of all other Bidders within five (5) business days after the Auctions Hearings. 7. Form and Contents of Bids. To constitute a "Qualified Bid," a bid must satisfy the following requirements: (a) Be an offer to purchase one or more of the Locations for cash only, with the purchase price for each Location to be separately allocated and in a minimum amount of at least $25,000 for each Location; (b) Include an executed and fully completed Bidder Information Sheet and Acknowledgement of Terms of Public Auctions; (c) Not be contingent on obtaining financing or the outcome of unperformed due diligence by the bidder or receipt of any permits or approvals by any third party; (d) Such bid must include an executed and fully completed copy of the Assignment and Assumption Agreement per each Location (the form of which is available upon request), or in the case of a landlord bidding on a Location subject to its own Lease, an executed and fully completed copy, per Location, of the Lease Termination Agreement (the form of which is available upon request); (e) Landlord Credit Bid. A landlord which is the counterparty to a Location subject to its own Lease will only be permitted to credit bid for that Location the amount that is the sum of the amount set forth in the "Pre-Petition Cure Amounts" column of the Lease Schedule. Alternatively, the Trustee may elect to agree to a Credit Bid for such a Location that is an amount mutually acceptable to the Trustee and the landlord for one or more Location. The landlord shall receive a dollar-for-dollar credit in the amount of the Credit Bid when such landlord bids for a Location subject to its own Lease provided the Landlord executes and delivers the requisite Lease Termination Agreement with its Qualified Bid. Notwithstanding the above, each bid is subject to the above-stated $25,000 minimum and if any Credit Bid is less than $25,000 the Landlord bid must include a cash component in the amount of the difference between the Credit Bid and $25,000. 8. Deadline for Submission of Bids. Any bidder that desires to participate in the Auctions shall deliver a copy of its bid not later than Noon (EST) on December 17, 2012 (the "Bidding Deadline") to the counsel for the Trustee, Murtha Cullina LLP, 99 High Street, Attn: Thomas S. Vangel, Esquire, with a copy to DJM Realty Services, LLC, 445 Broadhollow Road, Suite 225, Melville, N.Y. 11747. Attn: James Avallone. The Trustee shall have the right (but not the obligation) to extend the Bidding Deadline. 4229431v1 5
Case 12-18134 Doc 199-1 Filed 12/05/12 Entered 12/05/12 14:30:53 Desc Bidding Procedures Page 6 of 7 9. Notification of Opening Bids. At the commencement of each of the Auctions, the Trustee will identify the opening bid for each Location, which will be a Qualified Bid which the Trustee determine, in his sole discretion, is the highest and best Qualified Bid for each Location. 10. The Public Auctions. The Auctions: The Auctions shall commence at 10:00 a.m. (EST) on December 19, 2012 at the Hilton Boston Logan Airport. Qualified Bidders must attend the Auctions in person or through an authorized representative or agent with actual authority to participate in the Auctions and bind such Qualified Bidder. Additional Bidding at the Auctions shall be by open or sealed bids or such other method as may determined by the Trustee at the Auctions ("Increased Bids"). 11. Selection of Successful Bidder. At the Auctions, the Trustee shall review and consider each of the Qualified Bids and the Increased Bids, if any. The Trustee shall determine in his sole discretion, which of the Qualified Bids or Increased Bids, constitutes the highest and otherwise best bids ("Successful Bidders") for the Location or Locations and the second highest and best bid ("Second Highest Bidder") for the Location or Locations. The offers submitted by the Second Highest Bidder for a Location or Locations shall remain binding and irrevocable as to the Second Highest Bidder until fifteen (15) days after the entry of the Sale Order. If the amount of the Successful Bids is increased at the Auctions, the Successful Bidder and the Second Higher Bidder shall increase the amount of their deposit to 10% of the increased bid. At the conclusion of the Auctions after such review and determination, the Trustee shall announce the Successful Bidder for each Location and shall also announce the Second Highest Bidder. 12. Landlord Notice. The landlord for each Location will receive notice of the Successful Bidder or Successful Bidders with 24 hours of the completion of Public Auctions. 13. Executory Contract Objection Deadlines. The counterparties to the Leases must file any objection to the Cure Amounts and to the assumption and assignment of the Leases (except adequate assurance of future performance and use of the Location). The counterparties must file any objection to adequate assurance of future performance and/or proposed use of the Location by December 26, 2012 at Noon (EST). 14. Bankruptcy Court Approval of Successful Bidder. A hearing ("Auctions Hearing") to confirm the results of the Auctions shall be held before the Bankruptcy Court on December 27, 2012 at 10:00 a.m. (EST) and to determine any issues relating to the assumption and assignment of a Lease other than determination of any Cure Amount under such Lease. 15. Closing. The Successful Bidder for each Location shall tender the balance of its bid in cash or cashier's check to the Trustee no later than December 31, 2012 at 5:00 p.m. ("Closing Date"). In the event that a Successful Bidder shall fail to consummate the sale of the 4229431v1 6
Case 12-18134 Doc 199-1 Filed 12/05/12 Entered 12/05/12 14:30:53 Desc Bidding Procedures Page 7 of 7 Location, in the Trustee s sole discretion, the Second Highest Bidder shall have three (3) business days to tender the balance of its bid to the Trustee following written notification from the Trustee of his intent to accept the Second Highest Bid. 16. Failure to Consummate Purchase. In the event the Successful Bidder for any Locations fails to consummate such purchase by the Closing Date, the Second Highest Bidder will automatically be deemed to have submitted the highest and best bid and, at the Trustee s discretion, the Trustee shall be authorized, but not required, to effect the sale of the Assets including any Location or Locations, or any part thereof, to the Second Highest Bidder within fifteen (15) days after the entry of the Sale Order without further Order of the Bankruptcy Court. 17. Business Judgment of the Trustee; Right to Modify Bidding Procedures. Except as otherwise specifically provided herein, the Trustee reserves the right to (a) determine, in his sole discretion which Qualified Bid, if there are more than one, is the highest or otherwise best offer for a Location or Locations, (b) to reject at any time prior to the entry of the Sale Order approving the sale to a Successful Bidder or Successful Bidders, any bid for the Location or Locations, which the Trustee determines in his sole discretion to be (i) inadequate or insufficient, or (ii) not in conformity with the requirements of the Bankruptcy Code or the Bidding Procedures and (c) modify the Bidding Procedures for the Public Auctions as circumstances arise. 18. The Public Auctions are being conducted with reserve. The Public Auctions, of the Locations are expressly being conducted with reserve. The Trustee expressly reserves the right to remove and any or all of the Locations from the Public Auctions at any time prior to entry of the Sale Order, including, but not limited to, seek to reject any or all of the Leases or otherwise dispose of any or all of the Assets. 4229431v1 7