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UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF MASSACHUSETTS In re: Harbor Hill At Provincetown Condominium Trust, Debtor.

Case No. 16-13349-JNF Chapter 7

Second Amended Motion of Chapter 7 Trustee For Authority To Sell Real Estate and Related Personal Property at Private Sale Pursuant to 11 U.S.C. § 363 Warren E. Agin, (the “Trustee”), the chapter 7 trustee duly appointed to administer the bankruptcy estate of the above-named debtor (the “Debtor”), hereby moves this Court to enter orders pursuant to 11 U.S.C. §§ 105(a), and 363, Fed. R. Bankr. P. 6004 and 6006, and MLBR 6004-1; (a)

authorizing a sale of the Debtor’s interest in and to real estate on Harbor Hill Road, Provincetown, Massachusetts, and related personal property (the “Property”), free and clear of liens, claims, encumbrances and interests;

(b)

authorizing the Trustee to pay liens and other expenses at closing; and

(c)

providing other relief as necessary to allow the Trustee to provide a buyer with good title.

The Trustee proposes selling the Property to Town of Provincetown, Massachusetts, by and through the Provincetown Year-Round Market Rate Rental Housing Trust (the “Town of Provincetown” or “Buyer”) for $8,101,620.00, according

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to the terms in the Purchase and Sale Agreement (the “PSA”) attached as Exhibit A, 1 and subject to the right of third parties to submit counter-offers as provided herein. To accommodate the Buyer’s need to follow regulatory procedures to obtain further bidding authority, the Trustee requests that the Court schedule at least three business days between the deadline for submitting further counter offers and the hearing date. In support of this Motion, the Trustee states the following: Background 1.

On August 30, 2016, the Debtor commenced this case by filing a

voluntary petition under Chapter 7 of the United States Bankruptcy Code. Thereafter, the Trustee was appointed Chapter 7 trustee by the United States Trustee for the District of Massachusetts and the Trustee continues to serve as Chapter 7 trustee. 2.

The Debtor is a condominium timeshare association created pursuant

to M.G.L. ch. 183A and 183B. It operated a timeshare condominium located in Provincetown, Massachusetts consisting of four buildings, with twenty-six units. The Debtor also owns the property on which the condominium timeshare is located, to the extent not conveyed to individual interval owners.

Personal contact information for signatory Thomas Donegan has been redacted from Exhibit A.

1

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3.

Each of the twenty-six units has 51 intervals, which are color coded

according to their desirability. Red intervals represent the 11 weeks of Provincetown’s summer high season. These are fixed weeks. Red week owners have the right to use their apartment during a specific week during the summer. Pink weeks represent the 10 weeks in the shoulder season; late spring and early fall. White weeks represent 12 less desirable weeks in the early spring and late fall, plus the December holiday weeks. The remaining 18 weeks are the least desirable blue weeks. Pink, white and blue weeks are floating weeks; the owner has the ability to reserve a different week within the same, or lower, color group. For example, a pink week owner can reserve a pink, white or blue week, while a blue owner can reserve any available blue week. 4.

In total, there are 1326 intervals, which were all sold at one point in

time. Currently, some individuals own multiple intervals and the Debtor owns some intervals, so the total number of unit owners is less than 1326. 5.

Prior to 2015, the Debtor was managed by Donna Zoppi (“Zoppi”). In

late 2014, two former trustees of the Debtor learned about possible mismanagement by Zoppi. Their investigation indicated substantial improper conduct by Zoppi. Real estate taxes to the Town of Provincetown, and Federal and state withholding taxes had not been paid for several years. The Town of Provincetown had filed notices of tax takings, and the IRS had filed notices of tax liens. The former trustees reconstituted the Debtor’s board of trustees. In February 2015, they hired a

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constable and regained control over the Debtor’s operations, bank accounts, and business records. 6.

The new board discovered substantial additional improper conduct by

Zoppi. In addition to the failure to pay taxes, Zoppi had also failed to maintain proper business records, including ownership lists and financial records. Employees were not being paid, and telephone service was about to be cancelled. In addition, Zoppi had apparently been repurchasing intervals on behalf of Harbor Hill, reselling them to new owners, and diverting the profits away from Harbor Hill. Finally, the deeds for many interval ownership transfers had not been recorded with the Barnstable Registry of Deeds. In some cases, deeds were unrecorded or never signed. Because the real estate is registered land, older unrecorded deeds are no longer recordable even where signed and notarized. The property also had substantial deferred maintenance issues, and no capital reserve account had been established. The buildings needed new roofs, there were other structural issues, and furniture and fixtures hadn’t been replaced in decades. 7.

The new managers attempted to correct the Debtor’s financial and

operational issues, but were unsuccessful, in part because only 52% of the interval owners paid a June 2015 special assessment of $1,000, and only 61.5% of the interval owners paid their 2016 annual dues. By August 2016, the Debtor was almost out of cash. Management determined to close operations and on August 30 the Debtor filed its Chapter 7 bankruptcy petition. At that time, the Debtor held

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only $30,000 in funds, and its manager estimated it would have run out of funds completely about September 14, 2016. 8.

The Trustee examined a number of options for the Debtor, including

restarting operations under a number of scenarios. To assist in this decision, the Trustee obtained input from his accountant, Verdolino & Lowey, his management company, RKM Property Management, LLC, and his special counsel, Marcus, Errico, Emmer & Brooks. The Trustee conducted a survey of interval owners to determine owners’ tolerance for making further financial contributions. This analysis concluded that the Debtor would be unable to raise sufficient funds through special assessments to successfully restart operations and satisfy debt obligations. The Trustee’s analysis is set forth in greater detail in the “Status Report of Chapter 7 Trustee,” filed with the Court on October 13, 2016. 9.

Based on his analysis, the survey, and discussions with sale

professionals, the Trustee determined to seek a termination of the Debtor as a chapter 183B timeshare association and sell the Property through an auction sale mechanism. 10.

On October 25, 2016, the Trustee filed his “Motion of Chapter 7

Trustee to Employ NRC Realty & Capital Advisors of MA, LLC as Sales Agent,” (“NRC”) which the Court allowed on November 3, 2016. Pursuant to that motion, the Trustee proposes paying NRC a commission of 10% of the first $500,000, and 2.5% of the remaining gross selling price for the Property. NRC will also receive

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reimbursement of certain marketing and sale expenses, estimated to be less than $55,000. 11.

On December 3, 2016, the Trustee filed an Amended Motion for Sale

[32] (the “First Amended Sale Motion”) and Amended Motion to Approve Sale Procedures [33] (the “Sale Procedures Motion”), proposing a public auction of the Property. 12.

On January 4, 2017, the Court granted the Sale Procedures Motion,

approved proposed sale procedures (the “Sale Procedures”), and subsequently entered a Sale Procedures Order [62] on January 11, 2017, and a Notice of Intended Public Sale [64] on January 13, 2017. 13.

NRC ran a marketing program that included: a custom webpage; e-

mail blasts to NRC’s contact and broker database, and active hotel and land brokers in Cape Cod and Boston; print and electronic advertising in several local real estate journals; on-site signage; public relations activity; and a press release issued on PR Newswire. NRC conducted six open houses for bidders and interested buyer brokers, in addition to private showings when necessary. Marketing efforts were assisted by multiple press stories about the Harbor Hill at Provincetown sale in Wicked Local Provincetown and the Cape Cod Times. 14.

NRC’s efforts resulted in 1,511 unique web visitors to its marketing

webpage, and 178 entities registering to obtain additional information. Ninety-four prospects downloaded due diligence materials made available, and 39 groups

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registered for at least one of the open houses held at the site. Sixteen groups downloaded bidding packages. 15.

On the initial bidding deadline, the Trustee received three purchase

offers that the Trustee identified as qualified bids under the Sale Procedures. The highest bid was the Town of Provincetown’s bid, attached as Exhibit A. 16.

After a hearing on the First Amended Sale Motion, the Court denied

the First Amended Sale Motion due to procedural flaws, as noted in the Court’s February 27, 2017 order [90]. The Court directed the Trustee to file a further amended sale motion by March 6, 2017, to sell the Property to the Town of Provincetown as the initial bidder, and based on the terms of the Exhibit A. That order also dictated certain requirements for the continued sale process. 17.

The Trustee has returned the deposits of the other competing bidders,

and confirmed that the Town of Provincetown’s initial offer, attached as Exhibit A, remains in effect. The Property 18.

The Property consists of four lots off of Harbor Hill Road in

Provincetown, Massachusetts, known as 4 Harbor Hill Road, 3 Harbor Hill Road, 8 Harbor Hill Road, and 37 Bradford Street Extension, as more specifically described in that Master Deed of Harbor Hill at Provincetown Condominium, dated August 12, 1991, and recorded at the Barnstable County Registry of the Land Court as Document 535459, as amended. The Property includes the personal property located

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on the real estate, including fixtures and furnishings in the condominium units. 19.

The Debtor’s schedules value the Property at $6,559,100 (including

furnishings). The Town of Provincetown’s proposed 2017 assessed values for the real estate total $6,838,200. 20.

On the petition date, the Property was subject to liens for real estate

taxes owed to the Town of Provincetown in the amount of about $230,000. Additional real estate taxes, possible other municipal charges, and personal property excise liens are expected to accrue through the closing of a sale. The Property is also subject to Federal income tax liens for up to about $280,000. 2 The Trustee expects to be able to pay these secured claims in full at the time of closing from the closing proceeds. 21.

Linda LaFlamme & Marianne Alexander, owners of a timeshare

interval, filed a proof of claim [Claim 86-1] asserting a $5,000 secured claim based on the “market value” of their interval. 3 The Trustee will be objecting to this proof of claim as a secured claim, asserting that the owners are entitled to a distribution from sale proceeds based on the calculated distribution to owners of a two bedroom unit interval. 22.

The Property is also subject to the rights of current interval owners of

A proof of claim filed by the IRS shows a secured claim for $91,064.66, including interest, but excluding penalties. However, a review of the title report for the property identifies an additional $191,000 in Federal tax liens, and interest and penalties would have accrued on those additional liens through the petition date. 3 A second claim, number 81-1, appears on the claims docket as a secured claim because the filers checked off the “secured” box before crossing that out and marking the claim as unsecured. 2

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record and, where deeds to owners are unrecorded, equitable rights. The Trustee plans to seek a termination of the timeshare association pursuant to M.G.L. ch. 183B, § 15. The Trustee can accomplish this by having 80% of interval owners consent to a termination agreement. 23.

On December 3, 2016, the Trustee filed a Motion of Chapter 7 Trustee

for Authority to Enter into and Approval of Termination Agreement [34]. The termination agreement will, on ratification by 80% of the intervals, terminate the timeshare condominium, and vest the Trustee with the power to complete a conveyance of its assets including the Property. The agreement also governs the distribution of net sale proceeds to the existing owners of timeshare intervals pursuant to Massachusetts’ state law. On January 9, 2017, the Court entered an order granting the motion: authorizing the Trustee to enter into the termination agreement; take all other actions necessary or appropriate to effectuate termination of the Debtor as a M.G.L. Ch. 183B timeshare association in accordance with state law; and obtain Land Court approval for recording the termination agreement. 24.

The January 9, 2017, order, and the timeshare agreement once

ratified, will act to terminate the timeshare association, and vest in the Trustee the right, under Massachusetts’ state law, to complete a sale of the entire Property free of timeshare ownership interests. Sale proceeds will, after payment of claims and the estate’s administrative expenses, be distributed to interval owners. Appropriate

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adjustments will be made where interval owners have failed to pay their annual fee or the 2015 special assessment. 25.

Based on his survey of interval owners, his analysis, and the progress

made to date obtaining ratifications, the Trustee is confident that 80% of the intervals will ratify the termination agreement. The Trustee also notes that a large number of the intervals owe fees to the Debtor. Where delinquent owners fail to sign the termination agreement, the Trustee will foreclose their intervals under state law, with the costs of that action being charged against the foreclosed interval. These units will then count toward the 80% requirement. The Trustee currently expects to complete the process of obtaining ratifications by July 31, 2017. 26.

The Trustee is not aware of any other liens or interests in the

Property. The Purchase Offer 27.

The Town of Provincetown has offered $8,101,620.00 to purchase the

Property. The terms of the sale are set forth in the PSA attached as Exhibit A. 28.

The Town of Provincetown has delivered a sale deposit of $405,081.00

to the Trustee, who is holding such funds in escrow pending Court approval of the sale. The deposit equals 5% of the sale price. 29.

The Trustee desires to sell the Property “as is,” “where is” and “with all

faults.” 30.

The Trustee intends to sell, transfer and assign the Property free and

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clear of all liens, claims, encumbrances and interests (the “Claims”) pursuant to 11 U.S.C. §§ 363(f), except as set forth in this motion. Such Claims, if any, shall, to the extent valid and perfected, attach to the proceeds of the sale in their respective orders of priority and shall be paid as provided herein. Holders of Claims who do not object to the proposed sale will be deemed to have consented to the sale. 31.

Absent an objection, the consent of the holder of a Claim can be implied

from the circumstances of the sale. Generally, creditors who fail to object to the terms of a proposed sale are deemed to have waived their rights and are bound by the resulting sale order. See, In re Allegheny Health Educ. and Research

Foundation, 383 F.3d 169, 177-178 (3rd Cir. 2004). 32.

The Trustee can sell the Property free and clear of interests of

timeshare interval owners pursuant to 11 U.S.C. § 363(f)(1) and (5) due to the effect of M.G.L. ch. 183B, provided the timeshare termination is conducted in compliance with applicable state law. That statute allows termination of a timeshare condominium with the consent of 80% of the intervals. On termination, the trustee can, under that statute, sell the underlying real estate free and clear of the ownership rights subject to an obligation to distribute the net proceeds to the interval owners in accordance with the statute. Thus, Chapter 183B both allows a sale free of the interests, and allows the trustee to compel an interval owner to accept a monetary satisfaction of that interest, once the termination agreement is ratified. Provided the termination is conducted subject to applicable state law, the

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Trustee’s rights under the termination agreement will allow a conveyance of the Property. 33.

In addition, some interval ownerships may be in dispute due to the

existence of unrecorded deeds, or failures to pay outstanding dues, allowing a sale free and clear pursuant to 11 U.S.C. § 363(f)(1) because applicable non-bankruptcy law allows a sale free and clear of the interests. 34.

The Trustee believes that the Town of Provincetown’s offer is fair and

reasonable. The Trustee and NRC engaged in an extensive marketing process, resulting in three offers. The highest offer, from the Town of Provincetown, greatly exceeds the assessed value for the real estate, and also exceeds NRC’s original estimates of sale price. The initial bidding and sale process was also structured to attract high initial bids, by limiting to a limited number of initial bidders the right to participate in a final auction. 35.

In addition, the Trustee is asking the Court to set a further deadline for

counter-offers to the Town of Provincetown’s offer, and interested parties, including those that did not bid in the original sale process, will have an opportunity to submit a counter-offer. As a result, the Trustee believes the sale of the estate’s interest in the Property as set forth herein is in the best interests of the Debtor’s estate, its creditors, and owners of interval interests. General Provisions 36.

The Trustee will consider counter offers for the Property provided that

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the price offered is at least $8,150,000.00. The proposed notice of sale includes the following provisions, consistent with the Court’s February 27, 2017, order on the First Amended Sale Order: a.

Counter offers must be on the same terms and conditions provided in this motion and the PSA, other than the Purchase Price. Counter offers may not contain any materially different terms from the PSA. Counteroffers must be filed with the Court.

b.

All counter offers for the Property must be accompanied by a deposit equal to five percent of the counter offer, which must be increased to 10% on Court approval of the bid.

c.

In the event any interested party believes that any counter offer does not contain equivalent terms to the PSA, the party may file an emergency motion to disqualify the counter offer as a non-conforming bid within twenty-four hours after the submission of the offer, and the Court will hold an emergency hearing and provide all interested parties with an opportunity to be heard. The twenty-four hour deadline shall be computed in accordance with Fed. R. Bankr. P. 9006(a)(2).

d.

Counter offers, if any, will be subject to further competitive bidding in Court at the hearing on this motion, as the Court shall direct.

e.

Competing bidders will be required to be present in person at the sale hearing.

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37.

To facilitate completion of the sale, the Trustee requests that the order

authorizing the sale be effective immediately, notwithstanding Fed. R. Bank. P. 6004(h), and will seek a finding for purposes of 11 U.S.C. § 363(m) that the Buyer, and parties submitting counter-offers, if appropriate, is purchasing the Property in good faith. 38.

The Trustee seeks authority to pay Federal, state and local tax liens

and municipal assessments at the time of closing, and from closing proceeds, without need for further Court order. 39.

To encourage buyer broker participation in the marketing process, the

previously approved sale procedures provided that any registered buyer’s brokers will receive a payment of 1.25% of the purchase price if their buyer is the successful buyer. The Town of Provincetown did not register a buyer’s broker. If, after a final auction, a party that has previously registered a buyer’s broker is the successful bidder, the Trustee will seek authority to pay the buyer’s broker the commission at closing. The Trustee also takes the position that the need to pay the buyer’s broker a commission should be taken into account in determining which offer is the best offer. 40.

After completion of the auction, and before closing, the Trustee may

require further orders from the Court in order to provide clean title to the buyer, and to obtain findings of fact and law for submission to the Land Court. A request for supplemental relief will be filed to obtain any further orders required.

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41.

The Trustee requests that the final hearing and in-court auction be

scheduled for the Boston court. Although this case is on the Court’s Cape calendar, the Trustee and counsel are in Boston, Debtor’s counsel is in Raynham, Massachusetts, and the Boston court will be more convenient for the Trustee’s sale agent and interested interval owners (who largely live off of Cape Cod). In addition, the Boston court has superior facilities to accommodate a Court monitored auction and provide telephonic participation, if needed. Service 42.

The Trustee currently has about 1,420 service addresses for owners and

potential owners of timeshare intervals. In order to reduce the expense to the estate of providing notice to all interval owners, the Trustee asks for an order that the service provided by the methods described below is adequate notice to interval owners. 43.

The Trustee proposes to serve this motion by first class mail, postage

pre-paid, on the Debtor’s board of trustees, Debtors’ counsel, the United States Trustee’s Office, any known creditor claiming a lien or security interest in the Property, all federal, state and local taxing authorities, the Debtor’s twenty largest creditors, and all attorneys who have filed appearances in this case. 44.

The Trustee requests that this Court approve the proposed Notice of

Intended Private Sale attached as Exhibit B. The Trustee proposes to serve such Notice on all of the Debtor’s listed creditors, the United States Trustee, all federal,

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state and local taxing authorities, all parties or their counsel who have filed an appearance in this case or who have requested service of notices in this case, by first-class mail, postage prepaid, immediately upon the Trustee being informed of the dates established by the Court for a hearing on this motion and the time for filing objections and submitting counter-offers. 45.

The Trustee’s sale agent, NRC, will also circulate the Notice of Sale and

Sale Motion to all parties that have registered with NRC during the prior marketing process by e-mail to the address provided to NRC at registration, and by posting them online. 46.

To reduce the cost to the estate of service of notice, the Trustee proposes

complying with Rule 2002(a)(2) by providing a Notice of Filing in the form attached as Exhibit C to the last known addresses for all known timeshare interval owners by first class mail, postage prepaid, identifying the pleadings filed, the deadline for filing objections, and the date established by the Court for a final hearing on this motion and the sale motion. The Notice of Filing will be distributed within seven days of the of the Trustee being informed of the dates established by the Court for a hearing on this motion and the time for filing objections, as provided in the Notice. The Notice of Filing will provide instructions for parties to obtain copies of all pleadings by mail, e-mail or electronic download. The Trustee will also upload the pleadings to a publically available on-line depository, and provide e-mail notice containing the information from the Notice of Filing to all interval owners for which

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the Trustee has e-mail addresses or who have signed up for notice through the Harbor Hill Bankruptcy Google group the Trustee administers. The Trustee has at least one mailing address or e-mail address for all known interval owners. The Trustee will also provide publication notice by publishing the Notice of Filing in the Legal Notice section of USA Today, a newspaper with nationwide distribution, and through multiple online outlets via the PRWeb press release service. The Trustee will ask for an order that the service provided by these methods is adequate notice to interval owners. WHEREFORE, the Trustee respectfully prays that this Court: 1.

Approve the Notice of Intended Sale filed herewith as Exhibit B;

2.

Approve service on interval owners by the methods provided herein as adequate notice for purposes of F.R.B.P. 2002(a)(2).

3.

Schedule a deadline for objections to the sale, and a date for the hearing for consideration of objections and counter offers, in Boston;

4.

Authorize the Trustee to sell, assign and transfer the Property, free and clear of liens, claims, encumbrances and interests, all as set forth in this Motion and the attached Exhibits;

5.

Enter an Order directing that all Claims (as defined herein), to the extent valid and perfected, shall attach to the proceeds of the sale, in their respective orders of priority, to be paid as set forth herein or as otherwise determined by this Court;

6.

Authorize and empower the Trustee to take such further actions as are necessary, appropriate or desirable to consummate the transactions provided for or contemplated by this Motion;

7.

Enter a finding that the Buyer is purchasing the Property in good faith;

8.

Order that the order authorizing the sale shall be effective when

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entered by the Court, notwithstanding Fed. R. Bankr. P. 6004(h); and 9.

Grant such other and further relief as this Court deems just and proper

Dated: March 3, 2017. Warren E. Agin, as Trustee, By his Attorney, /s/Warren E. Agin Warren E. Agin (BBO 554242) Swiggart & Agin, LLC 197 Portland Street, Fourth Floor Boston, MA 02114 (617) 742-0110 x203 [email protected]

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Case 16-13349 Doc 93-2 Filed 03/03/17 Entered 03/03/17 15:01:53 Desc Exhibit B - Proposed Notice of Intended Private Sale Page 2 of 7 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF MASSACHUSETTS In re:

Case No. 16-13349-JNF

Harbor Hill At Provincetown Condominium Trust, Debtor.

Chapter 7

Notice of Intended Private Sale of Real Estate and Related Personal Property, Deadline For Submitting Objections, and Hearing Date

__________________, at ____________ EST

Deadline to File Objections or Submit Counter-offers

__________________, at ____________ EST

Hearing on the Sale Motion

Notice is hereby given, pursuant to 11 U.S.C. §§ 105(a) and 363, Fed. R. Bankr. P. 2002(a)(2) and 6004, and MLBR 2002-5 and 6004-1, that Warren E. Agin, the duly appointed chapter 7 trustee (the “Trustee”) of the bankruptcy estate of the above named debtor (the “Debtor”), intends to sell at private sale the Debtor’s right, title and interest in certain property of the estate. Property to be Sold: Four lots off of Harbor Hill Road in Provincetown, Massachusetts, known as 4 Harbor Hill Road, 3 Harbor Hill Road, 8 Harbor Hill Road, and 37 Bradford Street Extension, as more specifically described in that Master Deed of Harbor Hill at Provincetown Condominium, dated August 12, 1991, and recorded at the Barnstable County Registry of the Land Court as Document 535459, as amended, having twenty-six condominium units, including the personal property located on the real estate, including fixtures and furnishings in the condominium units (the “Property”). Interested parties may obtain additional information about the

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Property and the sale from the Trustee’s sale agent NRC Realty & Capital Advisors of MA, LLC as Sales Agent,” (“NRC”) by calling 800-747-3342, extension 1624. Information is also available on-line at www.nrc.com/1624. The Offer: The Trustee has received an offer to purchase the estate’s interest in the Property for the sum of $8,101,620.00 (the “Purchase Price”), under the terms in a Purchase & Sale Agreement signed February 9, 2017 (the “PSA”). A copy of the PSA is attached as Exhibit A to the Sale Motion. The Proposed Buyer: The proposed buyer is Town of Provincetown, Massachusetts, by and through the Provincetown Year-Round Market Rate Rental Housing Trust (the “Proposed Buyer”) with a last-known address of 260 Commercial Street, Provincetown, MA 02657. The Proposed Buyer has no relationship to the Debtor or trustee, except that the Proposed Buyer is a creditor of the Debtor’s estate. The Sale: The sale shall take place as provided in the PSA. The Proposed Buyer has delivered to the Trustee a deposit of 5% of the Purchase Price, $405,081.00, which the Trustee is holding in escrow. The terms of the proposed sale are more particularly described in a Second Amended Motion of Chapter 7 Trustee For Authority To Sell Real

Estate and Related Personal Property at Private Sale Pursuant to 11 U.S.C. § 363 (the “Sale Motion”) filed with the Court on or about _______, and the PSA. The Sale Motion and the PSA are available at no charge upon request from the undersigned, and also available on-line at www.nrc.com/1624. Sale Free and Clear of Liens:

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The Property will be sold free and clear of all liens, claims encumbrances and interests pursuant to 11 U.S.C. §§ 363(f) and 365. The Property is subject to liens for real estate taxes owed to the Town of Provincetown in the amount of about $230,000. Additional real estate taxes, possible other municipal charges, and personal property excise liens are expected to accrue through the closing of a sale. The Property is also subject to Federal income tax liens, securing debts estimated at about $280,000. The Trustee expects to be able to pay these secured claims in full at the time of closing from the closing proceeds. Linda LaFlamme & Marianne Alexander, owners of a timeshare interval, filed a proof of claim [Claim 86-1] asserting a $5,000 secured claim based on the “market value” of their interval. The Trustee will be objecting to this proof of claim as a secured claim, asserting that the owners are entitled to a distribution from sale proceeds based on the calculated distribution to owners of a two bedroom unit interval. The Property is also subject to the rights of current interval owners of record and, where deeds to owners are unrecorded, equitable rights. The Trustee plans to seek a termination of the timeshare association pursuant to M.G.L. ch. 183B. The Trustee can accomplish this by having 80% of interval owners consent to a termination agreement. This agreement will act to terminate the timeshare association, and vest in the Trustee the right, under Massachusetts’ state law, to convey the entire Property free of timeshare ownership interests. Sale proceeds will, after payment of claims and the estate’s administrative expenses, be distributed to interval owners. Appropriate adjustments will be made where interval owners have failed to pay their annual fee, the 2015 special assessment, or other amounts. The Trustee is not aware of any other liens, encumbrances or other interests in the

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Property. Counter Offers or Objections: Any objections to the sale, counter offers, or requests for hearing on the matter, shall be filed in writing with the Clerk, United States Bankruptcy Court at 5 Post Office Square, Suite 1150, Boston, MA 02109 on or before __________________ at 4:30 PM (the “Objection Deadline”). A copy of any objection shall be served upon the undersigned. Any objection to the sale must state with particularity the grounds for the objection and why the intended sale should not be authorized. Any objection to the sale shall be governed by Fed. R. Bankr. P. 9014. Through this Notice, counter offers for the Property are hereby solicited. Any counter offer must be at least $8,150,000.00. Counter offers must be filed with the Court, and a copy, accompanied by a deposit of 5% of the counter offer, in the form of a certified or bank check made payable to Warren E. Agin, chapter 7 trustee, served on the Trustee by delivery to his counsel to the address at the end of this notice. Counter offers must be filed and the deposit must be received by the stated deadline. Counter offers must be on the same terms and conditions provided in the Sale Motion and the PSA, other than the Purchase Price. Counter offers may not contain any materially different terms from the PSA. In the event any interested party believes that any counter offer does not contain equivalent terms to the PSA, the party may, within twenty-four hours after the counter offer is filed with the Court, file an emergency motion to disqualify the counter offer as a non-conforming bid. The twenty-four hour deadline shall be computed in accordance with Fed. R. Bankr. P. 9006(a)(2). The Court will hold an emergency hearing and provide all interested parties with an opportunity to be

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heard. Counter offers, if any, will be subject to further competitive bidding in Court at the hearing on this motion, as the Court shall direct. The deposit must be increased to 10% of the sale price on Court approval of the bid after the final round of bidding. Hearing: A hearing on the Sale Motion, objections or counter offers is scheduled to take place on _________________________ at __________ AM / PM before the Honorable Judge Joan N. Feeney, United States Bankruptcy Judge, 5 Post Office Square, Suite 1150, Boston, MA 02109. Any party who has filed an objection or counter offer is expected to be present at the hearing, failing which the objection will be overruled or counter offer stricken. Participants must appear at the Court in person to participate. Bidders may not appear telephonically. If a counter offer is filed with the Court prior to the deadline stated above, the Court may, in its discretion at the hearing on the Sale Motion, conduct further rounds of bidding. The Court may take evidence at any hearing on approval of the sale to resolve issues of fact. Parties seeking a finding for purposes of 11 U.S.C. § 363(m) that they are purchasing in good faith should be prepared to submit evidence at the hearing sufficient to support the finding. If no objection to the Sale Motion or counter offer is timely filed, the Court, in its discretion, may cancel the scheduled hearing and approve the sale without hearing. At the hearing on the sale, the Court may (i) consider any timely filed requests to strike a counter offer; (ii) determine further terms and conditions of the sale; (iii) determine the requirements for further competitive bidding; and (iv) require one or more rounds of sealed or open bids from the original offeror and any other qualifying offeror.

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Property Maintenance and Insurance: Between the date of the hearing and the closing, the Trustee reserves the right, if necessary, to utilize deposit funds provided by the successful bidder for purposes of paying RKM Property Management, LLC for general maintenance of the Property, to maintain monthly property insurance, and such other expenses agreed to by the parties. The Trustee estimates this expense to be roughly $3,000 per month. All deposit funds used by the Trustee for this purpose will be considered an administrative expense of the bankruptcy estate and payable to the successful bidder, subject to Court approval, in the event of a Seller Default, as defined in the PSA. Deposit: The deposit will be forfeited to the estate if the successful bidder fails to complete the sale by the date ordered by the Court. Any questions concerning the intended sale shall be addressed to the undersigned. Dated: March 3, 2017. Warren E. Agin, as Trustee, By his Attorney, /s/Warren E. Agin Warren E. Agin (BBO 554242) Swiggart & Agin, LLC 197 Portland Street, Fourth Floor Boston, MA 02114 (617) 742-0110 x203 [email protected]

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UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF MASSACHUSETTS In re:

Case No. 16-13349-JNF

Harbor Hill at Provincetown Condominium Trust, Debtor.

Chapter 7

Notice of Filing – Second Amended Sale Motion Please take notice that on March 3, 2017, Warren E. Agin, the Chapter 7 Trustee for the above-named Debtor, filed a “Second Amended Motion of Chapter 7 Trustee For Authority To Sell Real Estate and Related Personal Property at Private Sale Pursuant to 11 U.S.C. § 363” (the “Sale Motion”), seeking to sell the estate’s real estate and related personal property to the Town of Provincetown, Massachusetts, by and through the

Provincetown Year-Round Market Rate Rental Housing Trust, for $8,101,620.00, subject to the right of parties to submit counter-offers. The deadline to file with the Court any objection to the Sale Motion is ____________________________, and a hearing on the Sale Motion is scheduled for __________________, at ___________ am, at 5 Post Office Square, Boston, MA 02109.

If you would like a copy of the Sale Motion and related Notice of Intended Private Sale, you can obtain one by: 1. 2. 3. 4.

Downloading the Sale Motion at ________; Downloading the Notice of Intended Private Sale at _________; Making a written request to the undersigned at the address below; or Requesting a copy by e-mail sent to [email protected].

Dated at Boston, Massachusetts, March 3, 2017. Warren E. Agin, Trustee, By his Attorney, Swiggart & Agin, LLC /s/Warren E. Agin Warren E. Agin (BBO 554242) Swiggart & Agin, LLC 197 Portland Street, Fourth Floor Boston, MA 02114 (617) 742-0110 x 203 [email protected]