BIG APPLE CIRCUS
TRUCKS / TRACTORS / TRAILERS / RV’s / TENTS / EQUIPMENT / IP
US Bankruptcy Court | Southern District of New York
Re: The Big Apple Circus, Ltd. | Case No. 16-13297 (SHL)
LOT 1 All Furniture Fixtures & Equipment and Intellectual Property
LOT 2 All Vehicles – Power Units & Non-Power Units
Tractors, Vans, Pick Up Trucks, RV’s & Trailers
LOT 3 Equipment – Toys, Supplies, Tools, Food Service, Sets, Floors, Stages, Generators, Heaters, Tanks, Computers, Etc.
LOT 3A 2 Big Apple Circus Branded Big Top Tents (actual plans will be given to winning bidder)
LOT 4 Intellectual Property – IP Copyrights, Trademarks, URL, Customer Lists, Client Lists, Buyer Lists
Offers will be received on any or all of the above lots or any combination thereof.
A deposit in an amount equal to ten percent (10%) of the proposed purchase price, but in no event less than $50,000, must accompany all offers. Deposits should be made payable to and sent with offers to:
Stampler Auctions | 6740 Taft Street – Hollywood FL 33024
Please review the “Exclusions” list. Some or all of the excluded items may be available for use by the highest and best bidder(s).
BIG APPLE CIRCUS — BIDDING PROCEDURE
- Bid Deadline. Any entity wanting to participate in the Phase I Auction (a “Potential Bidder”) must submit a Qualified Bid (as defined below) in writing so as to be actually received on or before February 3 at 5:00 p.m. (Eastern Time) (the “Bid Deadline”), which deadline may be extended by the Circus, in consultation with Stampler. No bids submitted after the Bid Deadline shall be considered by the Circus.
- Bid Requirements. Only bids for the Circus Assets that constitute “Qualified Bids” will be considered by the Circus. A “Qualified Bid” is an offer to purchase the Circus Assets that: (i) identifies the Circus Assets to be purchased and the consideration to be paid for such Circus Assets, (ii) identifies the Potential Bidder and the officer(s) or authorized agent(s) who will appear on behalf of such Potential Bidder, (iii) explains the proposed use of the Circus Assets, (iv) provides evidence, satisfactory to the Circus in its reasonable discretion, of the Potential Bidder’s financial wherewithal and operational ability to consummate the proposed transaction, (v) provides that such offer is not subject to any due diligence or financing contingency or further board or similar approval, (vi) provides for a good faith deposit (a “Good Faith Deposit”) to be submitted to the Circus on or before the Bid Deadline in an amount equal to ten percent (10%) of the proposed purchase price, but in no event less than $50,000, (vii) provides that such offer is irrevocable until and unless the Circus accepts higher or otherwise better Qualified Bid and the Potential Bidder is not selected as the Back-Up Bidder (as defined below); (viii) includes a copy of a board resolution or similar document demonstrating the authority of the Potential Bidder to submit an offer to purchase the Circus Assets on the terms proposed by such Potential Bidder; (ix) identifies any proposed revisions to the form of order approving the proposed transaction that was attached to the Sale Motion; and (x) includes a proposed asset purchase agreement. As soon as practicable after a Potential Bidder submits a bid, the Circus will determine whether such bid is a Qualified Bid and will notify such Potential Bidder of such determination. The Circus reserves the right to consider bids for less than a substantial portion of the Circus Assets and bids that do not conform to one or more of the aforementioned requirements, and may deem such bids to be Qualified Bids notwithstanding such requirements. The Circus may aggregate separate bids from unaffiliated Potential Bidders to create one Qualified Bid, provided, however, that all such Potential Bidders shall remain subject to the provisions of section 363(n) of the Bankruptcy Code regarding collusive bidding.
- Due Diligence. Through and including the Bid Deadline, the Circus will afford Potential Bidders the opportunity to conduct a due diligence investigation regarding the Assets in the manner determined by the Circus, in its business judgment, to be reasonable and appropriate, subject to execution of an appropriate confidentiality agreement, as necessary. The Circus shall not be obligated to furnish access to any information of any kind whatsoever regarding the Assets after the Bid Deadline.
- The Phase I Auction. If two or more Qualified Bids are received on or before the Bid Deadline, the Circus shall conduct the Phase I Auction commencing on February 7, 2017 at 11:00 a.m. (Eastern Time), at the offices of Debevoise & Plimpton LLP, 919 Third Avenue, New York, New York 10022, to determine the highest or otherwise best bid for the Assets (the “Successful Bid”). The Phase I Auction may be adjourned or rescheduled without further notice by an announcement of the adjourned date at the Phase I Auction. The Circus reserves the right to cancel the Phase I Auction.
- Phase I Procedures. Only the Circus, Stampler, any entity that has submitted a Qualified Bid (a “Qualified Bidder”), the Office of the United States Trustee for the Southern District of New York (the “United States Trustee”), the New York State Attorney General, the Creditors’ Committee, and such entities’ respective advisors are eligible to participate in the Phase I Auction. All participants shall appear in person, by telephone, or through a duly authorized representative. Prior to the Phase I Auction, the Circus shall select the Qualified Bid that, in its business judgment, reflects the highest or otherwise best bid for the Circus Assets as the starting bid (the “Starting Auction Bid”) and advise all participants in the Phase I Auction of the terms of the Starting Auction Bid. Qualified Bidders may then submit bids that are better and higher than the Starting Auction Bid in increments to be announced at the Phase I Auction (collectively, the “Overbid Increments”). The Circus reserves the right, in consultation with Stampler and in the Circus’ business judgment, to announce reductions or increases to the Overbid Increments at any time during the Phase I Auction. The Phase I Auction may include individual negotiations with the Qualified Bidders and/or open bidding in the presence of all other Qualified Bidders. Each Qualified Bidder shall be required to confirm that it has not engaged in any collusion with respect to the bidding or the sale. The Circus shall have the right to conduct any number of auctions during the Phase I Auction to accommodate Qualified Bids for certain, but less than all, of the Circus Assets if the Circus determines, in its business judgment, that such process would be in the best interests of the Circus’ estate. The Circus shall determine whether any Qualified Bid is the Successful Bid pursuant to the “Determination of Successful Bid” section below. As soon as practicable following the determination of the Successful Bid, the Circus shall file the Successful Bidder Notice with the Bankruptcy Court identifying the Qualified Bidder that submits the Successful Bid (the “Successful Bidder”) and serve such notice by telecopy, electronic mail transmission, or overnight delivery, upon the following entities: (i) the United States Trustee, (ii) counsel to the Creditors’ Committee, (iii) the New York State Attorney General, (iv) all other parties that have filed notices of appearance in the Case, and (v) all Qualified Bidders that have submitted a Qualified Bid. The Circus may adjourn, continue, or terminate the Phase I Auction, and reserve the right to adopt other and further rules and procedures for the Phase I Auction that, in its business judgment will better promote the goals of the Phase I Auction. Absent irregularities in the conduct of the Phase I Auction, or reasonable and material confusion during the bidding, the Court will not consider bids after the Phase I Auction has been closed.
- Determination of Successful Bid. The Circus shall review each Qualified Bid that has been submitted and determine, in the Circus’ reasonable discretion, whether any Qualified Bid is the Successful Bid. In making such determination, the Circus shall consider any factor that it deems relevant, including, without limitation, the purchase price, the Circus’ mission, and those factors affecting the speed and certainty of consummating the proposed sale of the Assets. As soon as practicable following notification of the determination of the Successful Bid, but in no event later than the fifth (5th) business day after such notification, the Successful Bidder must execute a definitive agreement to purchase the Assets (an “Asset Purchase Agreement”), to the extent not previously executed, in all respects acceptable to the Circus. The presentation of the Successful Bid to the Court for approval does not constitute the Circus’ acceptance of such bid. The Circus will be deemed to have accepted the Successful Bid only when such bid has been approved by the Court pursuant to the Sale Order and the sale of the Circus Assets proposed in such bid has been consummated.
- Back-Up Bidder. If the Phase I Auction is conducted, the Qualified Bidder(s) with the next highest or otherwise best Qualified Bid for the Circus Assets at the Phase I Auction (the “Back-Up Bid”) shall be required to serve as the back-up bidder(s) (the “Back-Up Bidder”) for such Circus Assets and keep such Back-Up Bid(s) open and irrevocable until the first to occur of (i) thirty (30) days after the completion of the Phase I Auction, (ii) consummation of the transaction with the Successful Bidder, or (iii) the Back-Up Bidder’s receipt of notice from the Circus of the release by the Circus of the Back-Up Bidder’s obligations. Following the Sale Approval Hearing, if the Successful Bidder fails to consummate the approved transaction because of a breach or failure to perform on the part of such Successful Bidder or otherwise, the Back-Up Bidder will be deemed to be the new Successful Bidder, and the Circus will be authorized, but not required, to consummate the sale with the Back-Up Bidder without further order of the Court.
- Reservation of Rights. The Circus reserves the right to (a) determine, in its reasonable discretion, whether any Qualified Bid is a Successful Bid and (b) reject, at any time prior to entry of the Sale Order by the Bankruptcy Court, without liability, any bid that the Circus, in its reasonable discretion determines to be (i) inadequate or insufficient, (ii) not in conformity with these Bidding Procedures, the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, the Local Bankruptcy Rules for the Southern District of New York, or applicable state law, or (iii) contrary to the best interests of the Circus and its estate. At or before the Sale Approval Hearing, the Circus may impose such other terms and conditions on the sale of the Assets as the Circus may determine to be in the best interests of the Circus and its estate. The Circus reserves the right to modify the Bidding Procedures without the need for any further order of the Bankruptcy Court, including, without limitation, (a) extending the deadlines set forth in the Bidding Procedures, (b) adjourning the Phase I Auction and the Sale Approval Hearing, and (c) withdrawing or adding any assets from the sale process at any time prior to or during the Phase I Auction.
- Disposition of Good Faith Deposits. All Good Faith Deposits shall be held in a segregated trust account by Stampler. Good Faith Deposits shall be returned without interest to each bidder not selected by the Circus as the Successful Bidder or the Back-Up Bidder by no later than the tenth (10th) business day following the conclusion of the Phase I Auction. The Good Faith Deposit of the Back-Up Bidder shall be held by Stampler until ten (10) business days after the closing of sale transaction with the Successful Bidder or termination of the Back-Up Bid as provided above. If the Successful Bidder fails to consummate the purchase of the Circus Assets, or any part thereof, because of a breach, default or unexcused failure to perform on the part of such Successful Bidder, the Circus will not have any obligation to return the Good Faith Deposit deposited by such Successful Bidder, and such Good Faith Deposit shall irrevocably become property of the Circus without affecting or reducing any of the Debtor’s other rights or claims against such Successful Bidder. If a Successful Bidder consummates the purchase of the Circus Assets, the Good Faith Deposit deposited by such Successful Bidder shall be applied as a credit toward the purchase price for the Circus Assets.
- As Is, Where Is. The sale of the Assets shall be on an “as is, where is, and with all faults” basis and without representations or warranties of any kind, nature, or description by the Circus, its estate, or its agents or representatives. Except as otherwise expressly provided in these Bidding Procedures or any applicable Asset Purchase Agreement, by submitting a bid, each Potential Bidder that submits a bid shall be deemed to acknowledge and represent that it (i) has had an opportunity to conduct any and all reasonable due diligence regarding the Assets prior to making its bid, (ii) has relied solely upon its own independent review, investigation and/or inspection of any documents and/or the Assets in making its bid, and (iii) did not rely upon any written or oral statements, representations, promises, warranties or guaranties whatsoever, whether express, implied, by operation of law or otherwise, regarding the Assets, or the completeness of any information provided in connection therewith.
- Sale Approval Hearing. The sale of the Assets and applicable Asset Purchase Agreement shall be presented for authorization and approval by the Bankruptcy Court at the Sale Approval Hearing, which the Circus has requested be scheduled for February 13, 2017 at the United States Bankruptcy Court for the Southern District of New York, One Bowling Green, Room 701, New York, New York 10004, before the Honorable Sean H. Lane, United States Bankruptcy Judge. The Sale Approval Hearing may be adjourned or rescheduled without further notice by an announcement of the adjourned date at the Sale Approval Hearing.
- Phase II Auction. Following the consummation of the sale of the Circus Assets to the Successful Bidder or cancellation of the Phase I Auction, Stampler will conduct the Phase II Auction, which shall be an online public auction, for any remaining unsold Circus Assets. No later than twenty-one (21) days after the last sale of the Circus Assets is closed, Stampler will provide the Circus with a report of such sale(s) (the “Sale Report”), which Sale Report shall be filed with the Court and served on the United States Trustee, the Creditors’ Committee, and any other parties requesting notice pursuant to Bankruptcy Rule 2002. The Sale Report will include: (a) the time, date, and place of each sale; (b) the gross dollar amount of each sale; (c) if the Assets were sold in lots, a description of the items in each lot, and any bulk bids received; (d) an itemized statement of Stampler’s expenditures, disbursements, and commissions; (e) the names and addresses (to include city, state, country, and zip code) of all purchasers; (f) the approximate number of people attending the sale; (g) the items for which there were no bids and the disposition of those items; (h) a statement of the manner and extent of advertising of the sale; (i) a statement of the manner and extent of the availability of the Assets for inspection; and (j) any other information that the United States Trustee may request.