Filed 02/02/Case 17?28245 Doc 6 J. RUSSELL CUNNINGHAM, State Bar #130578 J. LUKE HENDRIX, State Bar #271424 NICHOLAS L. KOHLMEYER, State Bar #299087 DESMOND, NOLAN, LIVAICH CUNNINGHAM 1830 15th Street Sacramento, California 95811 Telephone: (916) 443-2051 Facsimile: (916) 443-2651 Attorneys for Sheri L. Carello Chapter 7 Trustee UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION In re: Case No. Chapter 7 NEW MEDIA CENTERS, Date: February 14, 2018 Time: 10:00 am. Debtor. Location: 501 I Street, 6th Floor Department Sacramento, CA 95814 7 NOTICE OF HEARING ON MOTION TO APPROVE SALE OF ESTATE PROPERTY TO: ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD. PLEASE TAKE NOTICE that on February 14, 2018, at 10:00 am. in Department of the above captioned court, located at 501 I Street, 6th Floor, Courtroom 34, Sacramento, California, SHERI L. CARELLO (?Trustee?), in her capacity as Chapter 7 trustee for the bankruptcy estate of NEW MEDLA CENTERS, dba THE NEW MEDLA CONSORTIUM will and hereby does move for an order approving her sale agreement with EDUCAUSE Learning Initiative (?Buyer?), detailed herein, subject to overbidding; and waiver of the 14 day stay period imposed by Federal Rule of Bankruptcy Procedure 6004(h). 39 Filed 02/02/18 Case 17?28245 DOC 39 1 BACKGROUND FOR MOTION 2 On December 20, 2017, NMC commenced the above-captioned bankruptcy case by ?ling 3 a voluntary Chapter 7 petition. The Trustee is the duly appointed Chapter 7 trustee. Prior to 4 ?ling bankruptcy, NMC operated as a non-pro?t organization in part serving education 5 institutions in developing digital literacy. NMC operated as an international consortium of 6 learning?focused organizations dedicated to the exploration and use of new media and new 7 technologies. NMC is primarily known for its NMC Horizon Project, which has been an ongoing 8 annual research project designed to identify and describe the trends, challenges, and technology 9 developments likely to have an impact on learning, teaching, and creative inquiry in higher 10 education, K-12, libraries, and museums, with NMC Horizon Report editions that focus on each 1 1 g. NMC Horizon Report Higher Education Report; and Horizon Report I 12 Edition). NMC would coordinate a panel of educational technology experts to review, comment, 13 and discuss a range of topics and relevant research and subsequently provide feedback from 14 activities designed to identify the trends, challenges, and developments in educational technology 15 and to select topics to be featured in the respective Horizon Reports. NMC would then produce 16 and publish the reports with an open license, generally available to the public, with members of 17 NMC entitled to certain access and other additional bene?ts. The NMC Horizon Project ?ndings 18 have been presented around the world at conferences, education workshops, etc. 19 The ?agship publication of the NMC Horizon Project is the NMC Horizon Report 20 Higher Education Report. NMC has worked for several years in collaboration with the Buyer to 21 produce the annual report, with the research and expert collaboration and feedback generally 22 completed by November of each year, and the report then produced and subsequently released 23 around the following February. The initial phases of research and expert collaboration had been 24 substantially completed for the report and production of the report was set to move forward at the 25 time of the bankruptcy ?ling, with the report to be released at a national education conference in 26 early March 2018. With respect to the Horizon Report Edition, the report 27 would generally be released around September of each year, with work beginning in the early 28 part of that year. Filed 02/02/Case 17?28245 Doc: 39 1 TERMS OF SALE AGREEMENT Subject to Bankruptcy Court approval, the Trustee has entered into a sale agreement with the Buyer for estate?s interest in the following (collectively referred to as ?Sale Assets?): (1) (2) (3) (4) (5) (6) (7) (8) interest in the NMC Horizon Project, NMC Horizon Report Higher Education Report, and Horizon Report Edition, and all associated goodwill; registered trademarks, identi?ed as NMC Virtual Worlds, registration #3606721; Circle Design, registration #3606722; and NMC, registration #31923 89; membership list and subscriber list; website/domain and all associated goodwill; interest in all software developed to facilitate the NMC Horizon Project and the production of the Horizon Reports, including related coding and tools; telephone number (5124454200); Any interest in the names NMC Horizon Project, The New Media Consortium, NMC Horizon Report Higher Education Report, and Horizon Report K-12 Edition, and all associated goodwill; and All of non?leasehold furniture, ?xtures, and equipment.1 The essential terms of the Trustee?s sale agreement are the following: (1) The Trustee shall sell and the Buyer shall purchase all of the bankruptcy estate?s right, title, and interest in the Sale Assets for the purchase price of $55,000 USD, subject to overbidding, payable as follows: $10,000 USD upon execution of the agreement, nonrefundable in all events unless the Buyer is not the successful bidder or the Bankruptcy Court does not approve the agreement; and the balance due within 5 calendar days of entry of a Bankruptcy Court order approving the agreement. 1The furniture, ?xtures, and equipment primarily consist of camera and audio equipment, computer equipment, and general of?ce furniture located in an Austin, Texas storage unit (see Exhibit 1 to Bankruptcy Schedule B, ?led January 17, 2018, Docket 3 Filed 02/02/18 Case 17?28245 Doc 39 (2) The Trustee makes no representations or warranties regarding the condition of the 2 Sale Assets. The Buyer agrees to purchase the Sale Assets in ?as is? and ?where is? condition and 3 subject to any and all claims of lien, encumbrance, and interest. The Buyer acknowledges that the 4 Trustee does not have knowledge of the condition of the Sale Assets and is not in a position to 5 make any disclosures to the Buyer concerning the condition of the Sale Assets. The Buyer shall 6 be solely responsible for all transfer taxes, fees, and costs. If the Buyer elects to Open an escrow, 7 the Buyer shall be responsible for all associated escrow costs and fees. 8 (3) Upon the Trustee?s receipt of the $55,000 purchase price and entry of a Bankruptcy 9 Court order approving the agreement, the Trustee shall convey to the Buyer the bankruptcy 10 estate?s interest in the Sale Assets by assignment, bill of sale, and any other appropriate transfer 11 instrument; reasonably cooperate with executing any transfer or other documentation as may be 12 reasonably necessary to con?rm the estate?s interest in the Sale Assets has been transferred to the 13 Buyer; and reasonably cooperate with providing access to the Sale Assets to the extent necessary 14 to facilitate the Buyer taking possession of the Sale Assets, including providing all passwords, 15 logins, etc. necessary to facilitate the transfer of the Sale Assets. The Buyer shall be solely 16 responsible for all costs associated with obtaining possession of the Sale Assets. 17 PROPOSED OVERBID PROCEDURES 18 Subject to Bankruptcy Court approval, to be a quali?ed overbidder, a party mustprovide 19 the Trustee a deposit by cashier?s check in an amount no less than $10,000 USD and proof of 20 funds for the balance of the purchase price, payable in full within 5 calendar days of entry of a . 21 Bankruptcy Court order approving the sale, and agree to all other terms of the Trustee?s sale 22 agreement with the Buyer, including purchasing the bankruptcy estate?s interest in the Sale 23 Assets in ?as is? and ?where is? condition and subject to any and all claims of lien, encumbrance, 24 and interest. . 25 NOTICE 26 The Motion is based upon this Notice of Hearing; the Motion; the Declaration of the 27 Trustee; the Exhibits ?led in support of the motion; all pleadings and papers on ?le in this 28 action; and upon such other matters as may be presented to the Court at the time of the hearing. Filed 02/02/Case 17?28245 Doc Reference to the Motion is suggested for more detail. A copy of the Motion and supporting papers can be obtained from the bankruptcy court or by contacting the undersigned counsel. Your rights may be affected. You should read these papers carefully and discuss them with your attorney if you have one. If you do not have an attorney, you may Wish to consult one. Concurrently with the ?ling of the Motion, and pursuant to Local Bankruptcy Rule the Trustee has ?led an EX Parte Application for Order Shortening Time to have the Motion set for hearing at the above-captioned date, time, and place. If you do not want the, Court to grant the relief sought in the Motion, or if you want the Court to consider your View on the Motion, then you need only to appear at the hearing scheduled to be held on February 14, 2018 at 1 0:00 a. m. Although you are not required to do so, if you Wish to ?le a response explaining your position, you may do so at? UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF CALIFORNIA 501 I Street, 3rd Floor Sacramento, CA 95814 If you mail your response to the Court for ?ling, you must mail it early enough so the Court will receive it before the date of the hearing. You must also mail a copy to: The Of?ce of the US. Trustee Sheri L. Carello, Chapter 7 Trustee 501 I Street, Suite 7-500 c/o Desmond, Nolan, Livaich Cunningham Sacramento, CA 95814 1830 15th Street If you or your attorney do not take these steps, the Court may decide that you do not oppose the relief sought in the Motion. - Copies of this Notice of Hearing and the Ex Parte Application for Order Shortening Time are being served on NMC, the United States Trustee, those requesting special notice, and the entire mailing matrix for this case on February 2, 2018. A copy of the proposed Order granting the Trustee?s EX Parte Application for Order Shortening Time is also being served on all parties. If the Trustee?s EX Parte Application is denied, or if the signed Order substantially alters the 39 Filed 02/02/18 Case 17-28245 DOC 39 1 relief requested in the Ex Parte Application, the Trustee will ?le and serve an amended notice of 2 hearing on the Motion. Unless you receive an amended notice, you should assume that the 3 Trustee?s Ex Parte Application has been granted and the court has scheduled the hearing 4 for the above-captioned date, time, and place. 5 You or your attorney can determine whether the matter has been resolved without oral 6 argument or whether the Court has issued a tentative ruling, and can View any pre~hearing 7 disposition by checking the Court?s website at after 4:00 P.M. the day 8 before the hearing, and parties appearing telephonically must View the pre?hearing dispositions 9 prior to the hearing. 2018 DESMOND, NOLAN, LIVAICH CUNNINGHAM 10 Dated: February 12- 13 J. LUKE DR Attorney for Sher1 .Carello, Trustee