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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION IN RE: ) ) ITT EDUCATIONAL SERVICES, INC.,
et al.1 ) Case No. 16-07207-JMC-7A ) Debtors. ) Jointly
Administered
TRUSTEE’S MOTION TO SELL REAL ESTATE LOCATED IN KENNESAW,
GEORGIA,
AND CERTAIN PERSONAL PROPERTY LOCATED THEREON, FREE AND CLEAR OF
ALL LIENS, ENCUMBRANCES, CLAIMS AND INTERESTS
WITH A PROSPECTIVE PURCHASER IDENTIFIED BUT BIDS CONSIDERED
Deborah J. Caruso, the chapter 7 trustee in this case (the
“Trustee”), by counsel, pursuant
to 11 U.S.C. §§ 105 and 363 and Rule 6004 of the Federal Rules
of Bankruptcy Procedure,
requests the Court enter an order authorizing the sale of
certain real estate located in Kennesaw,
Georgia and certain personal property located thereon, free and
clear of all liens, encumbrances,
claims and interests, to Hunter Property Partners, LLC (the
“Stalking Horse”) pursuant to the
stalking horse purchase agreement (the “Stalking Horse PA”), or
to a third party that submits a
higher or better bid for the real estate and personal property
in accordance with competitive bid
procedures, on the following grounds:
I. JURISDICTION
1. The Court has jurisdiction over this motion pursuant to 28
U.S.C. §§ 157 and
1334. This matter is a core proceeding within the meaning of 28
U.S.C. § 157(b)(2).
2. Venue is proper in this district pursuant to 28 U.S.C. §§
1408 and 1409.
1 The debtors in these cases, along with the last four digits of
their respective federal tax identification numbers are ITT
Educational Services, Inc. [1311]; ESI Service Corp. [2117]; and
Daniel Webster College, Inc. [5980].
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3. The statutory predicates for relief are sections 105 and 363
of Title 11 of the
United States Code (the “Bankruptcy Code”) and Rule 6004 of the
Federal Rules of Bankruptcy
Procedure (the “Bankruptcy Rules”).
II. BACKGROUND
4. On September 16, 2016 (the “Petition Date”), ITT Educational
Services, Inc.
(“ITT”), ESI Service Corp. (“ESI”) and Daniel Webster College,
Inc. (“Webster College,” and
together with ITT and ESI, the “Affiliated Debtors”) filed
voluntary petitions for relief under
chapter 7 of the Bankruptcy Code. The Trustee was appointed
interim trustee in each of the
Affiliated Debtors’ bankruptcy cases on the Petition Date
pursuant to section 701(a)(1) of the
Bankruptcy Code. The Trustee became the case trustee in each of
the Affiliated Debtors’
bankruptcy cases following the conclusion of the first meeting
of creditors on November 1, 2016,
pursuant to section 702(d) of the Bankruptcy Code.
5. On October 4, 2016, the Court entered its Order Granting
Motion for Joint
Administration of Chapter 7 Cases [Docs 221 & 222],
directing the Affiliated Debtors’
bankruptcy cases to be jointly administered for procedural
purposes only.
6. Pursuant to the Affiliated Debtors’ schedules of assets and
liabilities, as of the
Petition Date, ITT owned approximately 30 properties throughout
the United States, and Webster
College owns property located in Nashua, New Hampshire.2
7. On October 13, 2016, the Court entered its Order Granting
Trustee’s Application
to Employ A&G Realty Partners, LLC as Real Estate Broker and
to Provide Related Services
Effective as of October 10, 2016 [Doc 361], authorizing the
employment of A&G Realty
Partners, LLC (“A&G Realty”) as real estate brokers with
respect to the sale of real estate in this
2 As of the filing of this motion, the Trustee has sold 22
properties.
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case. Pursuant to the agreement between the Trustee and A&G
Realty approved by the Court,
A&G Realty is entitled to receive a commission of 1.95% of
the gross sale proceeds.
8. On October 6, 2016, the Court entered its Order Granting
Trustee’s Application
to Employ Tiger Capital Group, LLC as Auctioneer and Property
Manager Effective as of
October 3, 2016 [Doc 255], authorizing the employment of Tiger
Capital Group, LLC (“Tiger
Capital”) as auctioneer with respect to the sale of personal
property in this case. Pursuant to the
agreement between the Trustee and Tiger Capital approved by the
Court, Tiger Capital is entitled
to receive a commission of 13.0% of the gross sale proceeds from
the sale of personal property.3
9. On December 8, 2016, the Court entered its Order Granting
Trustee’s Motion to
Establish Bid Procedures for the Sale of Real Estate Free and
Clear of All Liens, Claims,
Encumbrances and Interests (the “Bid Procedure Order”) [Doc
738], establishing certain bid
procedures for the sale of real estate in this case, free and
clear of all liens, claims, encumbrances
and interests (the “Bid Procedures”). The proposed sale of real
estate at issue in this motion is
subject to the Court-approved Bid Procedures.
III. THE REAL ESTATE, PERSONAL PROPERTY AND LIENS
10. Pursuant to section 541(a) of the Bankruptcy Code, the
Affiliated Debtors’
bankruptcy estates include all legal and equitable interests of
the Affiliated Debtors in property
as of the commencement of the Affiliated Debtors’ bankruptcy
cases, including real estate and
personal property.
11. On the Petition Date, ITT was the sole owner of real estate
located in Cobb
County (Georgia), commonly known as 2065 ITT Tech Way, Kennesaw,
GA 30144, and more
3 The 13.0% commission is characterized as a buyers’ premium in
the agreement between the Trustee and Tiger Capital. To the extent
a buyer’s premium is not charged and collected in connection with
the sale of personal property, the Trustee and Tiger Capital have
agreed that Tiger Capital shall be entitled to a commission of
13.0%, to be paid by the Affiliated Debtors’ bankruptcy
estates.
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particularly described on Exhibit 1 attached and incorporated
herein (the “Real Estate”). In
addition, located on the Real Estate is certain personal
property, including, educational computer
towers, furniture, equipment, permanent improvements and
fixtures (the “Personal Property,”
and together with the Real Estate, the “Property”).4 The
Personal Property shall exclude
oscilloscopes, vending machines, leased copiers and all other
personal property that is subject to
a lease and/or owned by third parties.
12. Prior to the Petition Date, the Affiliated Debtors owed
certain obligations to
Cerberus Business Finance, LLC (“Cerberus”). In addition, after
the Petition Date, the Affiliated
Debtors’ bankruptcy estates obtained secured postpetition
financing on a superpriority basis in a
form of a revolving loan facility. Both the prepetition and
postpetition obligations due and
owing to Cerberus were secured by the vast majority of the
Affiliated Debtors’ assets, including
the Property.
13. On the Petition Date, the Real Estate was subject to a deed
of trust in favor of
Cerberus (the “Cerberus Deed of Trust”). In addition, on
December 4, 2014, Cerberus filed a
UCC Financing Statement with the Delaware Secretary of State,
File No. 20144896080,
perfecting its security interest in all of ITT’s personal
property pursuant to a certain financing
agreement (the “Cerberus Financing Agreement”). Due to the
completed sales of ITT’s owned
real estate and certain personal property, the Trustee has paid
all prepetition and postpetition
obligations due and owing to Cerberus. As a result, the Cerberus
Deed of Trust has been
4 On October 24, 2016, the Court entered its Order Granting
Trustee’s Motion to Sell at Private Sale or Auction Personal
Property Free and Clear of All Liens, Encumbrances, Claims and
Interests (the “Personal Property Sale Order”) [Doc 462],
authorizing the sale of the Affiliated Debtors’ tangible personal
property, free and clear of all liens, encumbrances, claims and
interests. Accordingly, the Trustee has Court authority to sell the
Personal Property located at the Real Estate, but out of an
abundance of caution, requests authority to sell the Personal
Property in connection with the sale of the Real Estate, as set
forth in the Stalking Horse PA. In addition, pursuant to the Order
Granting Agreed Motion to Approve Procedures for Preparing IT
Hardware for Sale that Could Contain Personally Identifiable
Information for Sale (the “PII Order”) [Doc 715], all hard drives
and other related equipment of the computers that are included as
Personal Property will be wiped prior to sale.
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released, and a termination statement has been filed with the
Delaware Secretary of State
releasing any secured interest in the Personal Property pursuant
to the Cerberus Financing
Agreement.
14. The Personal Property is subject to county personal property
tax liens for taxes
that have accrued for 2016 and will accrue for 2017 (the
“Personal Property Tax Liens”).
15. The Real Estate is subject to state, county and city real
estate tax liens for taxes
that have accrued for 2016 and will accrue for 2017 (the “Real
Estate Tax Liens”).
16. The Real Estate is also subject to a mechanic’s and
materialman’s lien (the
“Mechanic’s Lien”) in favor of Integra Construction, Inc.
(“Integra”). The initial Mechanic’s
Lien was dated July 24, 2016 and recorded on July 25, 2016 in
the Office of the Recorder of
Cobb County (Georgia), as Instrument No. 2016-0088105, for the
approximate sum of
$58,169.00. A supplement to the Mechanic’s Lien was recorded on
September 7, 2016 in the
Office of the Recorder of Cobb County (Georgia), as Instrument
No. 2016-0107220, for the
approximate sum of $770.00.
17. Finally, the Real Estate is subject to a lien for delinquent
property owner
association fees due and payable to Kennesaw/75 Retail Center
Owner’s Association (the
“Owner’s Association”) in the approximate sum of $23,158.17.
IV. THE STALKING HORSE PA
18. On August 15, 2017, the Trustee entered into the Stalking
Horse PA for the sale
of the Property to the Stalking Horse, subject to the
Court-approved Bid Procedures, for the total
purchase price of $1,650,000.00 ($1,640,000.00 for the Real
Estate and $10,000.00 for the
Personal Property). A copy of the Stalking Horse PA is attached
and incorporated as Exhibit 2.
19. Pursuant to the Stalking Horse PA, the Stalking Horse has
represented and
warranted to the Trustee that: (a) the Stalking Horse is not an
insider of one or more of the
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Affiliated Debtors; (b) the proposed sale represents an
arms-length transaction between the
parties, made without fraud or collusion with any other person
(including any other prospective
bidder for the Property); and (c) there has been no attempt to
take any unfair advantage of the
Trustee. In the event the Stalking Horse is not the successful
bidder at the auction, the Trustee
will request that such successful bidder (the “Successful
Bidder”) make the same representations
and warranties in its purchase agreement. Accordingly, the
Stalking Horse or the Successful
Bidder shall be deemed to be purchasing the Property in good
faith pursuant to section 363(m) of
the Bankruptcy Code.
20. In addition, the Stalking Horse PA provides for the sale of
the Real Estate, free
and clear of all liens, encumbrances, claims and interests;
provided however, the Real Estate is to
be sold subject to all easements, right of ways, leases
(recorded or unrecorded), covenants,
restrictions and all other exceptions of record, and those
matters that would be disclosed upon a
visual inspection of the Real Estate.
21. The Stalking Horse PA also provides that any portion of the
Personal Property
Tax Liens and the Real Estate Tax Liens that represents
delinquent taxes, including taxes that
have accrued for 2016, will be paid in full at closing. In
addition, the Stalking Horse PA
provides that any portion of the Personal Property Tax Liens and
the Real Estate Tax Liens that
represents 2017 real estate taxes will be prorated as of the
date immediately prior to the date of
closing. Moreover, the Stalking Horse PA provides that any other
special assessment liens,
utilities, water and sewer charges and any other charges
customarily prorated in similar
transactions will be prorated as of the date immediately prior
to the date of closing.
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V. RELIEF REQUESTED
22. The Trustee requests the Court enter an order, pursuant to
sections 105 and 363 of
the Bankruptcy Code and Bankruptcy Rule 6004, as follows:
(a) Authorizing the Trustee, on behalf of the Affiliated
Debtors’ bankruptcy estates, to sell the Property to the Stalking
Horse pursuant to the terms and conditions of the Stalking Horse
PA, or to the Successful Bidder that may emerge and submit a higher
or better bid at the auction, in accordance with the Bid
Procedures;
(b) Directing the sale of the Property, whether to the Stalking
Horse or Successful
Bidder, free and clear of all liens, encumbrances, claims and
interests (including the Personal Property Tax Liens, the Real
Estate Tax Liens, the Cerberus Deed of Trust, the Cerberus
Financing Agreement, the Mechanic’s Lien and the POA Lien), with
all such valid liens, encumbrances, claims and interests attaching
to the sale proceeds in the same order, priority and validity that
presently exists, subject to all claims of the Trustee; provided
however, the Real Estate shall be sold subject to all easements,
right of ways, leases (recorded or unrecorded), covenants,
restrictions and all other exceptions of record, and those matters
that would be disclosed upon a visual inspection of the Real
Estate;
(c) Authorizing the Trustee to execute any documentation
necessary to effectuate
the sale of the Property, including the execution of a
Bankruptcy Trustee’s Deed, the Stalking Horse PA or other purchase
agreement between the Trustee and the Successful Bidder;
(d) Finding that the Stalking Horse or Successful Bidder are
good faith purchasers
pursuant to section 363(m) of the Bankruptcy Code because (i)
the Stalking Horse or Successful Bidder are not insiders of one or
more of the Affiliated Debtors, (ii) the proposed sale represents
an arms-length transaction between the parties, made without fraud
or collusion with any other person (including any other prospective
bidder for the Property), and (iii) there has been no attempt to
take any unfair advantage of the Trustee;
(e) Finding that section 363(f)(3) of the Bankruptcy Code has
been satisfied as it
relates to the Personal Property Tax Liens, the Real Estate Tax
Liens, the Mechanic’s Lien and the POA Lien, and directing that
such liens be paid in full from the sale proceeds at closing;
(f) Finding that section 363(f)(2) of the Bankruptcy Code has
been satisfied as it
relates to the Cerberus Deed of Trust and Cerberus Financing
Agreement;
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(g) Authorizing the Trustee to disburse from the sale proceeds,
first to pay the costs and expenses of the sale, including the
commission owed to A&G Realty and the commission owed to Tiger
Capital, second to pay all real estate taxes, business personal
property taxes and assessments outstanding and unpaid at the time
of the sale, including the Personal Property Tax Liens, the Real
Estate Tax Liens, third to pay the Mechanic’s Lien and POA Lien and
fourth to pay the prorated portions for any other special
assessment liens, utilities, water and sewer charges and any other
charges customarily prorated in similar transactions;
(h) Authorizing the Trustee to retain the net sale proceeds for
general
administration by the Affiliated Debtors’ bankruptcy estates;
and
(i) Waiving the requirements of Local Rule B-6004-5 and the
requirements of Bankruptcy Rule 6004(h).
VI. GROUNDS FOR GRANTING RELIEF
23. Pursuant to section 363(f) of the Bankruptcy Code, a trustee
may sell property
pursuant to section 363(b) or (c) of the Bankruptcy Code, “free
and clear of any interest in such
property of an entity other than the estate” if any of the
following conditions are satisfied: (a)
applicable nonbankruptcy law permits sale of such property free
and clear of such interest; (b)
such entity consents; (c) such interest is a lien and the price
at which such property is to be sold
is greater than the aggregate value of all liens on such
property; (d) such interest is in bona fide
dispute; or (e) such entity could be compelled, in a legal or
equitable proceeding, to accept a
money satisfaction of such interest.
24. Section 363(b)(1) of the Bankruptcy Code provides that
“[t]he trustee, after notice
and a hearing, may use, sell, or lease, other than in the
ordinary course of business, property of
the estate.” 11 U.S.C. § 363(b)(2). Although section 363 of the
Bankruptcy Code does not
provide an express standard for determining whether a court
should approve any particular
proposed use, sale, or lease of estate property, case law
consistently applies an “articulated
business judgment” standard. See In re Schipper, 933 F.2d 513,
515 (7th Cir. 1991) (citing In re
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Continental Air Lines, 780 F.2d 1223, 1226 (5th Cir. 1986), In
re Naron & Wagner, Charted, 88
B.R. 85, 88 (Bankr. D. Md. 1988)); see also Colfin Bulls Funding
A, LLC v. Paloian (In re
Dvorkin Holdings, LLC), 2016 WL 1029387, at *12 (Bankr. N.D.
Ill. Mar. 14, 2016) (“The
Seventh Circuit has clarified that a trustee’s justification
warrants judicial approval if it ‘makes
good business sense’ (i.e., if ‘the creditors as a whole . . .
benefit’).”) (citing United Retired
Pilots Ben. Prot. Ass’n v. United Airlines, Inc. (In re Ual
Corp.), 443 F.3d 565, 571-72 (7th Cir.
2006)).
25. In addition, under section 363 of the Bankruptcy Code, a
court should not
substitute its business judgment for that of the trustee. See
e.g., Stephens Indus., Inc. v. McClung
(In re McClung), 789 F.2d 386, 389-90 (6th Cir. 1986); In re
Highway Equip. Co., 61 B.R. 58,
60 (Bankr. S.D. Ohio 1986). Rather, the court is required to
ascertain whether the trustee has
articulated a valid business justification for the proposed
transaction. See, e.g., Lewis v.
Anderson, 615 F.2d 778, 781 (9th Cir. 1979); In re Schipper, 109
B.R. 832, 836 (Bankr. N.D. Ill.
1989); In re Airlift Int’l, Inc., 18 B.R. 787, 789 (Bankr. S.D.
Fla. 1982) (recognizing
congressional intent to limit Court involvement in business
decisions by a trustee).
26. The Court’s power to authorize a sale under section 363(b)
of the Bankruptcy
Code is to be exercised at its discretion, utilizing a flexible,
case-by-case approach. See In re
Baldwin United Corp., 43 B.R. 888, 905 (Bankr. S.D. Ohio 1984).
The key consideration is the
Court’s finding that a good business reason exists for the sale.
See McClung, 789 B.R. at 389.
However, the paramount goal in any proposed sale of property of
the estate is to maximize the
proceeds received by the estate. See e.g., In re Good Barn
Stores, Inc., 107 F.3d 558, 564-65
(8th Cir. 1997) (in bankruptcy sales, “a primary objective of
the Code [is] to enhance the value
of the estate at hand”); In re The Ohio Corrugating Co., 59 B.R.
11, 13 (Bankr. N.D. Ohio
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1985); In re Atlanta Packaging Prod., Inc., 99 B.R. 124, 131
(Bankr. N.D. Ga. 1988) (“It is a
well-established principle of bankruptcy law that the objective
of bankruptcy sales and the
[debtor’s] duty with respect to such sales is to obtain the
highest price or greatest overall benefit
possible for the estate.”); Teed v. Thomas & Betts Power
Sols., L.L.C., 711 F.3d 763, 769 (7th
Cir. 2013) (“Once a firm is in Chapter 7 bankruptcy . . . it is
‘owned’ by the trustee . . . whose
sole concern is with maximizing the net value of the debtor’s
estate to creditors . . . .”).
27. Pursuant to Bankruptcy Rule 6004, “[a]ll sales not in the
ordinary course of
business may be by private sale or by public auction.” Fed. R.
Bankr. P. 6004(f)(1). A large
measure of discretion is accorded a bankruptcy court in deciding
whether a private sale of a
debtor’s assets should be approved. See In re Nicole Energy
Servs., 385 B.R. 201, 230 (Bankr.
S.D. Ohio 2008); see also In re Embrace Sys. Corp., 178 B.R.
112, 123 (Bankr. W.D. Mich.
1995) (citing In re Blue Coal Corp., 168 B.R. 553, 564 (Bankr.
M.D. Pa. 1994)). Furthermore,
evidence that a transaction involving estate property under
section 363 of the Bankruptcy Code
will be at fair market value permits the conclusion that the
transaction is in the best interest of the
estate. See In re Planned Sys., Inc., 82 B.R. 919, 923 (Bankr.
S.D. Ohio 1988) (finding sufficient
evidence of fair market value and adequate exposure where
property was listed with a broker
since the prior year).
The Proposed Sale Satisfies the Bankruptcy Code Requirements
28. The Trustee submits that the proposed sale pursuant to the
Stalking Horse PA,
subject to the Bid Procedures, will accomplish a “sound business
purpose” and will maximize
the value of the Property in the most expeditious manner
possible.
29. The Trustee believes, based on the advice of A&G Realty,
that the purchase price
of $1,650,000.00 ($1,640,000.00 for the Real Estate and
$10,000.00 for the Personal Property)
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reflects the combined fair market value of the Property, and it
therefore maximizes recovery.
However, the Stalking Horse PA is subject to higher or better
bids, should other bidders emerge.
30. Section 363(f)(3) of the Bankruptcy Code is satisfied as it
relates to the Real
Estate Tax Liens, the Mechanic’s Lien and the POA Lien. The
total purchase price of
$1,640,000.00 for the Real Estate is greater than the aggregate
value of such liens. Any portion
of the Real Estate Tax Liens that represent delinquent real
estate taxes, including real estate taxes
that have accrued for 2016, will be paid in full at closing. Any
portion of the Real Estate Tax
Liens that represents 2017 real estate taxes, but are not yet
due and payable, will be prorated as
of the date immediately prior to the date of closing, and the
Stalking Horse or the Successful
Bidder is assuming the remaining balance of the Real Estate Tax
Liens for 2017. Accordingly,
pursuant to section 363(f)(3) of the Bankruptcy Code, the
Trustee is permitted to sell the Real
Estate free and clear of the Real Estate Tax Liens, the
Mechanic’s Lien and the POA Lien.
31. Section 363(f)(3) of the Bankruptcy Code is satisfied as it
relates to the Personal
Property Tax Liens. The total purchase price of $10,000.00 for
the Personal Property is greater
than the aggregate value of such lien. Any portion of the
Personal Property Tax Liens that
represent delinquent personal property taxes, including personal
property taxes that have accrued
for 2016, will be paid in full at closing. Any portion of the
Personal Property Tax Liens that
represent 2017 personal property taxes, but are not yet due and
payable, will be prorated as of the
date immediately prior to the date of closing, and the Stalking
Horse of the Successful Bidder is
assuming the remaining balance of the Personal Property Tax
Liens for 2017. Accordingly,
pursuant to section 363(f)(3) of the Bankruptcy Code, the
Trustee is permitted to sell the
Personal Property free and clear of the Personal Property Tax
Liens.
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32. Moreover, section 363(f)(2) of the Bankruptcy Code is
satisfied as it relates to the
Cerberus Deed of Trust and Cerberus Financing Agreement. The
Cerberus Deed of Trust has
been released and a termination statement has been filed with
the Delaware Secretary of State
releasing Cerberus’ interest in the Personal Property pursuant
to the Cerberus Financing
Agreement. As such, Cerberus has consented to the sale of the
Real Estate and Personal
Property, as described in this motion, and the Trustee’s
retention of the net sale proceeds for
general administration by the Affiliated Debtors’ bankruptcy
estates. Accordingly, pursuant to
section 363(f)(2) of the Bankruptcy Code, the Trustee is
permitted to sell the Real Estate free and
clear of the Cerberus Deed of Trust and sell the Personal
Property free and clear of the Cerberus
Financing Agreement.
33. This motion contains the required disclosures as provided in
Local Rule B-6004-
5(a) and (b). Because the Court has previously approved the Bid
Procedures, the Trustee
requests the Court waive the remaining requirements of Local
Rule B-6004-5, as they are no
longer applicable pursuant to the Court-approved Bid
Procedures.
34. Bankruptcy Rule 6004(h) provides that “[a]n order
authorizing the sale, use or
lease of property other than cash collateral is stayed until the
expiration of 14 days after entry of
the order, unless the court orders otherwise.” Fed. R. Bankr. P.
6004(h). The Trustee requests
the Court order that such an order be effective immediately upon
entry in order to allow the
Trustee to timely and expeditiously consummate the proposed
sale.
VII. REQUEST FOR SALE HEARING
35. The Trustee requests the hearing on this motion be scheduled
for hearing on
September 26, 2017 at 10:00 a.m. (prevailing Eastern time), with
objections due by 4:00 p.m.
(prevailing Eastern time) on September 25, 2017. This will allow
the Trustee and A&G Realty
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sufficient time to continue soliciting other bids, and in the
event other qualified bids are received
by the anticipated bid deadline of September 18, 2017, to
conduct an auction on September 25,
2017.
VIII. NOTICE
36. Pursuant to the Notice, Case Management and Administrative
Procedures (the
“Case Management Procedures”) approved by the Court on October
4, 2016 [Doc 220], the
Trustee will serve a copy of this motion, along with the
attached Exhibits 1 and 2 on the
following (as defined in the Case Management Procedures): (a)
the Core Group; (b) the Request
for Notice List; (c) the Appearance List; (d) the Tax
Commissioner for Cobb County (Georgia);
(e) Integra; (f) the Owner’s Association; (g) the City of
Kennesaw; (h) Cerberus; and (i) the
Stalking Horse.
WHEREFORE, the Trustee respectfully requests entry of an order
granting the relief
requested herein and granting the Trustee all other just and
proper relief.
Respectfully submitted,
RUBIN & LEVIN, P.C.
By: /s/ Meredith R. Theisen Meredith R. Theisen
Deborah J. Caruso (Atty. No. 4273-49) John C. Hoard (Atty. No.
8024-49) James E. Rossow Jr. (Atty. No. 21063-29) Meredith R.
Theisen (Atty. No. 28804-49) RUBIN & LEVIN, P.C. 135 N.
Pennsylvania Street, Suite 1400 Indianapolis, Indiana 46204 Tel:
(317) 634-0300 Fax: (317) 263-9411 Email: [email protected]
[email protected] [email protected]
[email protected] Attorneys for Deborah J. Caruso,
Trustee
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CERTIFICATE OF SERVICE
I hereby certify that on August 28, 2017, a copy of the
foregoing Trustee’s Motion to Sell Real Estate Located in Kennesaw,
Georgia, and Certain Personal Property Located Thereon, Free and
Clear of All Liens, Encumbrances, Claims and Interests with a
Prospective Purchaser Identified But Bids Considered was filed
electronically. Pursuant to Section IV.C.3(a) of the Case
Management Procedures, notice of this filing will be sent to the
following parties through the Court’s Electronic Case Filing
System. Parties may access this filing through the Court’s system.
John Joseph Allman [email protected], [email protected] Robert N
Amkraut [email protected] Scott S. Anders
[email protected], [email protected] Manuel
German Arreaza [email protected] Todd Allan Atkinson
[email protected] Darren Azman [email protected] Joseph E Bain
[email protected] Kay Dee Baird [email protected],
[email protected];[email protected];[email protected];[email protected]
Michael I. Baird [email protected], [email protected] Christopher
E. Baker [email protected], [email protected] James David
Ballinger [email protected], [email protected] Joseph
E. Bant [email protected] William J. Barrett
[email protected], [email protected] Ashley Flynn
Bartram [email protected],
[email protected] Alex M Beeman
[email protected], [email protected] Thomas M
Beeman [email protected] Richard James Bernard
[email protected] John J Berry [email protected],
[email protected] Brandon Craig Bickle
[email protected] Robert A. Breidenbach
[email protected] Wendy D. Brewer [email protected],
[email protected] Kayla D. Britton
[email protected],
[email protected];[email protected] Jason R
Burke [email protected], [email protected] Erin Busch
[email protected] Kevin M. Capuzzi [email protected],
[email protected];[email protected] James E. Carlberg
[email protected], [email protected];[email protected]
Steven Dean Carpenter [email protected] Deborah Caruso
[email protected],
[email protected];[email protected];[email protected]
Deborah J. Caruso [email protected],
[email protected] Joshua W. Casselman
[email protected],
[email protected];[email protected] Ben T. Caughey
[email protected]
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Sonia A. Chae [email protected] John Andrew Chanin
[email protected], [email protected] Eboney Delane Cobb
[email protected] Michael Edward Collins [email protected]
Michael Anthony Collyard [email protected],
[email protected] Eileen Connor [email protected]
Lawrence D. Coppel [email protected] Heather M. Crockett
[email protected],
[email protected];[email protected];[email protected]
J Russell Cunningham [email protected], [email protected] David H
DeCelles [email protected] Dustin R. DeNeal
[email protected],
[email protected];[email protected] Laura A
DuVall [email protected], [email protected] Henry
A. Efroymson [email protected] Abby Engen
[email protected], [email protected] Annette England
[email protected] Charles Anthony Ercole [email protected],
[email protected] Carolyn Meredith Fast [email protected]
Elaine Victoria Fenna [email protected] Andrew W Ferich
[email protected] Patrick F.X. Fitzpatrick
[email protected],
[email protected];[email protected];[email protected];[email protected]
John David Folds [email protected],
[email protected] Jennifer N Fountain [email protected],
[email protected] Sarah Lynn Fowler [email protected],
[email protected] Lydia Eve French
[email protected] Jonathan William Garlough
[email protected], [email protected];[email protected] Robert P Goe
[email protected] Douglas Gooding [email protected] John Andrew
Goodridge [email protected], [email protected];[email protected]
Michael Wayne Grant [email protected] Alan Mark
Grochal [email protected] Gregory Forrest Hahn
[email protected], [email protected] Julian Ari Hammond
[email protected], [email protected] Wallace M
Handler [email protected], [email protected] Adam Craig
Harris [email protected] Brian Hauck [email protected] Jeffrey M.
Hawkinson [email protected], [email protected] Claude
Michael Higgins [email protected] Michael W. Hile
[email protected], [email protected] Sean M Hirschten
[email protected] Robert M. Hirsh [email protected] John
C. Hoard [email protected],
[email protected];[email protected]
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Andrew E. Houha [email protected] James C
Jacobsen [email protected], [email protected] Christine K.
Jacobson [email protected], [email protected] Jay
Jaffe [email protected],
[email protected];[email protected] Benjamin F
Johns [email protected], [email protected] Russell Ray Johnson
[email protected] Kenneth C. Jones [email protected] Anthony
R. Jost [email protected], [email protected] Timothy Q. Karcher
[email protected] John M. Ketcham [email protected],
[email protected] Taejin Kim [email protected] Edward M King
[email protected], [email protected];[email protected] Michael
Orrin King [email protected], [email protected] Roy F.
Kiplinger [email protected], [email protected]
James A. Knauer [email protected], [email protected] Kevin Dale Koons
[email protected], [email protected] Harris J. Koroglu
[email protected], [email protected] Lawrence Joel Kotler
[email protected] Robert R Kracht [email protected]
Andrew L. Kraemer [email protected],
[email protected] David R. Krebs [email protected],
[email protected] Jerrold Scott Kulback [email protected] Jay
R LaBarge [email protected] Vilda Samuel Laurin
[email protected] Jordan A Lavinsky [email protected]
David S Lefere [email protected], [email protected]
Martha R. Lehman [email protected],
[email protected];[email protected];[email protected]
Gary H Leibowitz [email protected],
[email protected];[email protected] Donald D
Levenhagen [email protected] Elizabeth Marie Little
[email protected] Melinda Hoover MacAnally
[email protected],
[email protected];[email protected] Christopher
John Madaio [email protected] John A. Majors
[email protected], [email protected] Steven A.
Malcoun [email protected] Jonathan Marshall [email protected]
Thomas Marvin Martin [email protected] Jeff J. Marwil
[email protected],
[email protected];[email protected];[email protected]
Richard J Mason [email protected] Patrick Francis Mastrian
[email protected],
[email protected] Ann Wilkinson Matthews
[email protected]
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Rachel Jaffe Mauceri [email protected] Michael K.
McCrory [email protected], [email protected] Maureen Elin
McOwen [email protected] Harley K Means [email protected],
[email protected];[email protected];[email protected] Toby Merrill
[email protected],[email protected],[email protected]
Robert W. Miller [email protected] Thomas E Mixdorf
[email protected], [email protected] Evgeny
Grigori Mogilevsky [email protected], [email protected] James P
Moloy [email protected],
[email protected];[email protected] Ronald J. Moore
[email protected] Hal F Morris [email protected]
Michael David Morris [email protected] Kevin Alonzo
Morrissey [email protected],
[email protected];[email protected];[email protected]
Whitney L Mosby [email protected], [email protected] C Daniel
Motsinger [email protected],
[email protected];[email protected];[email protected];[email protected];[email protected]
Lee Duck Moylan [email protected], [email protected] Abraham
Murphy [email protected] Justin Scott Murray
[email protected] Alissa M. Nann [email protected],
[email protected] Henry Seiji Newman [email protected] Kevin M.
Newman [email protected], [email protected] Cassandra A.
Nielsen [email protected],
[email protected],[email protected] Ryan Charles
Nixon [email protected] Kathryn Elizabeth Olivier
[email protected],
[email protected];[email protected] Gregory Ostendorf
[email protected], [email protected] Pamela A. Paige
[email protected], [email protected] Danielle Ann
Pham [email protected] Zachary David Price
[email protected] Jack A Raisner [email protected]
Jonathan Hjalmer Reischl [email protected] James Leigh
Richmond [email protected] Melissa M. Root [email protected]
David A. Rosenthal [email protected] James E Rossow
[email protected],
[email protected];[email protected];[email protected]
Rene Sara Roupinian [email protected],
[email protected];[email protected];[email protected];[email protected];[email protected]
Victoria Fay Roytenberg [email protected],
[email protected]
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Steven Eric Runyan [email protected] Craig Damon Rust
[email protected], [email protected] Karl T Ryan
[email protected], [email protected] Joseph Michael Sanders
[email protected] Thomas C Scherer [email protected],
[email protected] James R. Schrier [email protected],
[email protected];[email protected] Ronald James Schutz
[email protected] H. Jeffrey Schwartz
[email protected] Courtney Michelle Scott
[email protected] Joseph E Shickich [email protected],
[email protected] William E Smith [email protected],
[email protected] Lauren C. Sorrell [email protected],
[email protected];[email protected] Catherine L. Steege
[email protected], [email protected];[email protected] Jesse
Ellsworth Summers [email protected], [email protected] Jonathan David
Sundheimer [email protected] Nancy K. Swift
[email protected], [email protected] Eric Jay Taube
[email protected],
[email protected];[email protected] Meredith
R. Theisen [email protected],
[email protected];[email protected] Meredith R. Theisen
[email protected],
[email protected];[email protected];[email protected];[email protected]
Jessica L Titler [email protected] Todd Christian Toral
[email protected], [email protected] Ronald M.
Tucker [email protected], [email protected],[email protected]
U.S. Trustee [email protected] Michael Ungar
[email protected] Sally E Veghte [email protected], [email protected]
Rachel Claire Verbeke [email protected] Amy L VonDielingen
[email protected] Carolyn Graff Wade
[email protected] Louis Hanner Watson
[email protected] Jeffrey R. Waxman [email protected],
[email protected];[email protected] Christine M.H.
Wellons [email protected] Philip A. Whistler
[email protected], [email protected] Bradley
Winston [email protected], [email protected] Brandon
Michael Wise [email protected] Cathleen Dianne Wyatt
[email protected], [email protected] Joseph Yar [email protected],
[email protected] James T Young [email protected],
[email protected];[email protected] James E. Zoccola
[email protected]
I further certify that on August 28, 2017, pursuant to Section
IV.C.3(c) of the Case
Management Procedures, a copy of the foregoing Trustee’s Motion
to Sell Real Estate Located in Kennesaw, Georgia, and Certain
Personal Property Located Thereon, Free and Clear of All
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Liens, Encumbrances, Claims and Interests with a Prospective
Purchaser Identified But Bids Considered was emailed to the
following:
Arlington ISD/Richardson ISD: Eboney Cobb at [email protected] CEC
Red Run, LLC: Alan M. Grochal at [email protected] SWRE Deal
V Building, LLC: Paul Weiser at [email protected] Tarrant
County/Dallas County: Elizabeth Weller at
[email protected] Northwest Natural Gas Company:
Ashlee Minty at [email protected] Solar Drive Business,
LLC: Chris W. Halling at [email protected] Market-Turk
Company: Jordan A. Lavinsky at [email protected] Taxing
Authority for Harris County, Texas: John P. Dillman at
[email protected] Texas Comptroller of Public Accounts:
Rachel Obaldo at [email protected] Clear Creek
Independent School District: Carl O. Sandin at [email protected]
Synchrony Bank: Recovery Management Systems Corporation at
[email protected] Bexar County: Don Stecker at
[email protected] SWRE Deal V Building, LLC:
Nancy K. Swift at [email protected] TN Dept. of Revenue: Michael
Willey at [email protected] Florida Department of Education:
Benman D. Szeto at [email protected] Last Second Media, Inc.:
T. Todd Egland at [email protected] Hung Duong: Kevin Schwin
at [email protected] Travis County: Kay D. Brock at
[email protected] Able Building Maintenance: Scott D.
Fink at [email protected] Marathon Ventures, LLC: Daniel
M. Karger at [email protected] Oklahoma County Treasurer: Tammy
Jones at [email protected] JM Partners LLC: John
Marshall at [email protected]
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I further certify that on August 28, 2017, pursuant to Section
IV.C.3(b)(ii) of the Case Management Procedures, a copy of the
foregoing Trustee’s Motion to Sell Real Estate Located in Kennesaw,
Georgia, and Certain Personal Property Located Thereon, Free and
Clear of All Liens, Encumbrances, Claims and Interests with a
Prospective Purchaser Identified But Bids Considered was mailed by
first-class U.S. Mail, postage prepaid, and properly addressed to
the following:
Tax Commissioner, Cobb County, GA 736 Whitlock Avenue Marietta,
GA 30064
Hunter Property Partners, LLC Attn: Brad Johnson One Glenlake
Parkway, Suite 1275 Atlanta, GA 30328
Ron Ben-Moshe, Esq. McClure & Korneisher, LLC 6400 Powers
Ferry Road, Suite 150 Atlanta, GA 30339
Integra Construction, Inc. 185 Allen Road, Suite 100 Atlanta, GA
30328
Kennesaw/75 Retail Center Owner’s Association c/o Blake G.
Dexter 5607 Glenridge Drive Suite 725 Atlanta, GA 30342
City of Kennesaw 2529 J O Stephenson Avenue Kennesaw, GA
30144
/s/ Meredith R. Theisen Meredith R. Theisen
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LEGAL DESCRIPTION
PARCEL 1
ALL THAT TRACT OR PARCEL OF LAND LYING AND BEING IN LAND LOT 91
OF THE 20TH DISTRICT, 2ND SECTION, CITY OF KENNESAW, COBB COUNTY,
GEORGIA AS A PORTION OF LOT 3B OF KENNESAW/75 AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A 1/2 INCH REBAR FOUND ON THE EASTERLY RIGHT OF WAY
OF BAKER ROAD (HAVING A 60 FOOT RIGHT OF WAY WIDTH) LOCATED SOUTH
05 DEGREES 42 MINUTES 51 SECONDS WEST A DISTANCE OF 325.19 FEET
FROM A 1/2 INCH REBAR FOUND ON THE SOUTHERLY RIGHT OF WAY OF JILES
ROAD CONNECTOR (RIGHT OF WAY WIDTH VARIES); THENCE FROM SAID POINT
OF BEGINNING AS THUS ESTABLISHED, LEAVING THE EASTERLY RIGHT OF WAY
OF BAKER ROAD, PROCEEDING SOUTH 84 DEGREES 58 MINUTES 22 SECONDS
EAST, A DISTANCE OF 175.04 FEET TO A 1/2 INCH REBAR FOUND; THENCE
SOUTH 84 DEGREES 56 MINUTES 50 SECONDS EAST, A DISTANCE OF 38.59
FEET TO A 1/2 INCH REBAR SET; THENCE SOUTH 02 DEGREES 02 MINUTES 42
SECONDS WEST, A DISTANCE OF 440.15 FEET TO A 1/2 INCH REBAR SET;
THENCE SOUTH 59 DEGREES 33 MINUTES 55 SECONDS WEST, A DISTANCE OF
274.39 FEET TO A POINT ON THE EASTERLY RIGHT OF WAY OF CSX RAILROAD
(RIGHT OF WAY WIDTH VARIES) THENCE ALONG SAID RIGHT OF WAY,
FOLLOWING A COUNTERCLOCKWISE CURVE WITH AN ARC DISTANCE OF 193.08
FEET, HAVING A RADIUS OF 2118.02 FEET, SUBTENDED BY A CHORD BEARING
AND DISTANCE OF NORTH 39 DEGREES 46 MINUTES 29 SECONDS WEST, 193.01
FEET TO A 1/2 INCH REBAR SET; THENCE CONTINUING ALONG SAID RIGHT OF
WAY, NORTH 41 DEGREES 36 MINUTES 58 SECONDS WEST, A DISTANCE OF
67.37 FEET TO A 1/2 INCH REBAR SET; THENCE NORTH 31 DEGREES 14
MINUTES 21 SECONDS WEST, A DISTANCE OF 61.00 FEET TO A 1/2 INCH
REBAR SET; THENCE LEAVING SAID RIGHT OF WAY, NORTH 58 DEGREES 46
MINUTES 40 SECONDS EAST, A DISTANCE OF 43.71 FEET TO A 1/2 INCH
REBAR FOUND; THENCE NORTH 31 DEGREES 17 MINUTES 09 SECONDS WEST,
DISTANCE OF 50.97 FEET TO A 1/2 INCH REBAR FOUND; THENCE NORTH 05
DEGREES 24 MINUTES 13 SECONDS EAST, A DISTANCE OF 223.48 FEET TO A
1/2 INCH REBAR SET; THENCE NORTH 85 DEGREES 50 MINUTES 02 SECONDS
EAST, A DISTANCE OF 112.31 FEET TO A POINT ON THE WESTERLY RIGHT OF
WAY OF BAKER ROAD (60 FOOT RIGHT OF WAY WIDTH); THENCE ALONG SAID
RIGHT OF WAY, FOLLOWING A COUNTERCLOCKWISE CURVE WITH AN ARC
DISTANCE OF 92.69 FEET, HAVING A RADIUS OF 60.00 FEET, SUBTENDED BY
A CHORD BEARING AND DISTANCE OF SOUTH 40 DEGREES 07 MINUTES 13
SECONDS EAST, 83.74 FEET TO A 1/2 INCH REBAR FOUND; THENCE
CONTINUING ALONG SAID RIGHT OF WAY, FOLLOWING A COUNTERCLOCKWISE
CURVE WITH AN ARC DISTANCE OF 151.96 FEET, HAVING A RADIUS OF 60.00
FEET, SUBTENDED BY A CHORD BEARING A DISTANCE OF NORTH 23 DEGREES
04 MINUTES 31 SECONDS EAST 114.48 FEET TO A POINT; THENCE
CONTINUING ALONG SAID RIGHT OF WAY, FOLLOWING A CLOCKWISE CURVE
WITH AN ARC DISTANCE OF 9.63 FEET, HAVING A RADIUS OF
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10.00 FEET, SUBTENDED BY A CHORD BEARING AND DISTANCE OF NORTH
21 DEGREES, 52 MINUTES, 05 SECONDS WEST, 9.26 FEET TO A 1/2 INCH
REBAR FOUND AT THE POINT OF BEGINNING, CONTAINING 4.50 ACRES AS
SHOWN ON ALTA/ACSM LAND TITLE SURVEY FOR ITT EDUCATIONAL SERVICES,
INC.; KENNESAW/75 VENTURE, L.P. 8I CHICAGO TITLE INSURANCE COMPANY,
MADE BY TRAVIS PRUITT & ASSOCIATES, INC., BEARING THE SEAL AND
SIGNATURE OF JOHN G. ADAMS, GA. R.L.S. NO. 2768, DATED FEBRUARY 27,
2007, LAST REVISED MARCH 6, 2007. PARCEL 2: EASEMENTS AND OTHER
INTERESTS IN REAL PROPERTY CONTAINED IN THAT CERTAIN DECLARATION OF
COVENANTS AND RESTRICTIONS FOR KENNESAW/75 BY KENNESAW/75 VENTURE,
L.P., A GEORGIA LIMITED PARTNERSHIP, KENNESAW PARKWAY PARTNERS,
L.P., A GEORGIA LIMITED PARTNERSHIP, AND K75 PHASE I LIMITED
PARTNERSHIP, A GEORGIA LIMITED PARTNERSHIP, DATED SEPTEMBER 15,
1997, FILED FOR RECORD SEPTEMBER 25, 1997, AND RECORDED IN DEED
BOOK 10670, PAGE 466, AFORESAID RECORDS; AS AMENDED BY THAT CERTAIN
FIRST AMENDMENT TO THE DECLARATION OF COVENANTS AND RESTRICTIONS
FOR KENNESAW/75 BY KENNESAW/75 VENTURE, L.P., A GEORGIA LIMITED
PARTNERSHIP, DATED JULY 29, 2003, FILED FOR RECORD AUGUST 27, 2003,
AND RECORDED IN DEED BOOK 13830, PAGE 5376, AFORESAID RECORDS.
PARCEL 3: EASEMENTS AND OTHER INTERESTS IN REAL PROPERTY CONTAINED
IN THAT CERTAIN DECLARATION OF EASEMENTS AND COVENANT TO SHARE
COSTS FOR KENNESAW/75 BY AND BETWEEN KENNESAW/75 VENTURE, L.P., A
GEORGIA LIMITED PARTNERSHIP, KENNESAW/75 RETAIL CENTER ASSOCIATION,
INC., A GEORGIA NONPROFIT CORPORATION, AND KENNESAW/75 PROPERTY
OWNERS ASSOCIATION, INC., A GEORGIA NONPROFIT CORPORATION, DATED
AUGUST 31, 2004, FILED FOR RECORD SEPTEMBER 1, 2004, AND RECORDED
IN DEED BOOK 14035, PAGE 5406, AFORESAID RECORDS; AS RE-RECORDED BY
THAT CERTAIN DECLARATION OF EASEMENTS AND COVENANT TO SHARE COSTS
FOR KENNESAW/75 BY AND BETWEEN KENNESAW/75 VENTURE, L.P., A GEORGIA
LIMITED PARTNERSHIP, KENNESAW/75 RETAIL CENTER ASSOCIATION, INC., A
GEORGIA NONPROFIT CORPORATION, AND KENNESAW/75 PROPERTY OWNERS
ASSOCIATION, INC., A GEORGIA NONPROFIT CORPORATION, DATED AUGUST
31, 2004, FILED FOR RECORD SEPTEMBER 2, 2004, AND RECORDED IN DEED
BOOK 14036, PAGE 722, AFORESAID RECORDS. g:\wp80\trustee\caruso\itt
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2030-12030-22030-3