THE HONOURABLE MR. JUSTICE HAINEY (COMMERCIAL LIST} ) ) ) FRIDAY, THE 26th DAY OF MARCH, 2021
IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT
ACT, R.S.C. 1985, c. C-36, AS AMENDED
AND IN THE MATTER OF BBGI US, INC., BROOKS BROTHERS FAR EAST LIMITED, BBD HOLDING 1, LLC, BBD HOLDING 2, LLC, BBDI,
LLC, BBGI INTERNATIONAL, LLC, BBGI RESTAURANT, LLC, DECONIC GROUP LLC, GOLDEN FLEECE MANUFACTURING GROUP, LLC, RBA WHOLESALE, LLC, RETAIL BRAND ALLIANCE
GIFT CARD SERVICES, LLC, RETAIL BRAND ALLIANCE OF PUERTO RICO, INC., 696 WHITE PLAINS ROAD, LLC, AND BBGI
CANADA LTD.
APPLICATION OF BBGI US, INC. UNDER SECTION 46 OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36,
AS AMENDED RECOGNITION ORDER
(Plan Confirmation Order and Termination of CCAA Proceedings)
THIS MOTION, made by BBGI US, Inc. (f/k/a Brooks Brothers Group Inc.) ("BBGI")
defined herein) granted by the United States Bankruptcy Court for the District of Delaware (the "U.S. Bankruptcy Court"), made in the cases commenced by the Chapter 11 Debtors pursuant to Chapter 11 of the United States Bankruptcy Code (the "Chapter 11 Cases"), (ii) approving the fees and disbursements of the Information Officer (as defined herein) and its counsel, and (iii) providing a mechanism for the termination of these CCAA recognition proceedings, was heard this day by judicial videoconference.
ON READING the Notice of Motion, the Sixth Affidavit of Stephen Marotta affirmed March 23, 2021 (the "Sixth Marotta Affidavit"), the Fifth Report of Alvarez & Marsal Canada Inc. ("A&M"), in its capacity as information officer (the "Information Officer"), dated March 24, 2021 (the "Fifth Report"), filed, the fee affidavits of the Information Officer and its counsel, Torys LLP ("Torys", and such affidavits, the "Fee Affidavits"), each filed.
AND UPON HEARING the submissions of counsel for the Foreign Representative, the Information Officer, and such other counsel as were present, no one else appearing although duly served as appears from the affidavit of service of Mark Sheeley, made March 23, 2021 and the affidavit of service of Michael Noel, made March 24, 2021:
SERVICE
1. THIS COURT ORDERS that the time for service of the Notice of Motion and the Motion Record is hereby abridged and validated so that this Motion is properly returnable today and hereby dispenses with further service thereof.
DEFINITIONS
Liquidation for BBGI US, Inc. and Its Affiliated Debtors (the "Plan Confirmation Order", a copy of which is attached as Schedule "A" hereto) of the U.S. Bankruptcy Court made in the Chapter 11 Cases is hereby recognized and given full force and effect in all provinces and territories of Canada pursuant to section 49 of the CCAA; provided, however, that in the event of any conflict between the terms of the Plan Confirmation Order and the Orders of this Court made in the within proceedings, the Orders of this Court shall govern with respect to Property (as defined in the Supplemental Order (Foreign Main Proceeding) dated October 13, 2020 (the "Supplemental Order")), made in these proceedings, in Canada.
IMPLEMENTATION OF THE PLAN
4. THIS COURT ORDERS that the Foreign Representative, the Chapter 11 Debtors, the Information Officer, the Liquidation Trustee and the Litigation Trustee are authorized and directed to take all steps and actions, and to do all things, necessary or appropriate to implement the Plan in accordance with its terms, and enter into, implement and consummate all of the steps, transfers, transactions and agreements contemplated pursuant to the Plan.
5. THIS COURT ORDERS that:
( a) as of the Effective Date, the Plan, including (i) the treatment of Claims as provided for in the Plan, and (ii) all compromises, arrangements, transfers, transactions, releases, discharges and injunctions provided for in the Plan as approved in the Plan Confirmation Order, as applicable, shall inure to the benefit of and be binding and effective upon the Chapter 11 Debtors, the Canadian creditors of the Chapter 11 Debtors, and all other persons affected thereby, and on their respective heirs, administrators, executors, legal personal representatives, successors and assigns; and
Canada not otherwise provided for in the Plan, the Plan Confirmation Order and this Order, if any, shall be assumed by, BBGI International, LLC.
6. THIS COURT ORDERS that, from and after the Effective Date, including, for certainty,
following the termination of these CCAA proceedings, BB Canada and the Liquidation Trustee (including its designee), as applicable, shall be authorized to take all such steps and actions, and to execute and deliver all such additional documents, as may be necessary or desirable to dissolve BB Canada in accordance with the Plan and applicable law.
RELEASES AND INJUNCTIONS
7. THIS COURT ORDERS AND DECLARES that the compromises, arrangements,
releases, discharges and injunctions contained and referenced in the Plan and as approved by the Plan Confirmation Order, are valid and effective on the Effective Date, all such releases, discharges and injunctions are hereby sanctioned, approved, recognized and given full force and effect in all provinces and territories of Canada in accordance with and subject to the terms of this Order, the Plan Confirmation Order and the Plan.
APPROVAL OF FEES AND ACTIVITIES
8. THIS COURT ORDERS that the Information Officer's activities, as set out in its Fourth
Report, dated February 12, 2021, and the Fifth Report, be and are hereby approved; provided, however, that only the Information Officer, in its personal capacity and only with respect to its own personal liability, shall be entitled to rely upon or utilize in any way such approval.
9. THIS COURT ORDERS that the fees and disbursements of the Information Officer and
Torys, as set out in the Fifth Report and the Fee Affidavits, be and are hereby approved.
10. THIS COURT ORDERS AND DECLARES that the fees and disbursements of the
any applicable taxes and disbursements, without further application to this Court for approval of such fees.
REDUCTION OF MINIMUM RESERVE ACCOUNT BALANCES
11. THIS COURT ORDERS that the minimum reserve account balances required in paragraph 13 of the Recognition, Approval and Vesting Order, dated September 25, 2020 (the
"Minimum Reserve Account Balances"), may, from time to time, be reduced to an amount to be determined by the Chapter 11 Debtors, in consultation with the Information Officer, upon service by the Information Officer of an executed certificate substantially in the form attached hereto as Schedule "B" (the "Information Officer's Reserve Account Balances Certificate") on the service list in these proceedings (the "Service List").
12. THIS COURT ORDERS that the Information Officer shall (a) incur no liability in
connection with any reductions to the Minimum Reserve Account Balances set forth herein, and (b) file each Information Officer's Reserve Account Balances Certificate with the Court as soon as practicable following service thereof on the Service List.
13. THIS COURT ORDERS that, upon the service by the Information Officer of the Information Officer's Reserve Account Balance Certificate on the Service List, BB Canada shall be authorized and directed to pay to BB Parent any and all Canadian Collateral Proceeds no longer required to be retained by BB Canada to support the Administration Charge and the Directors'
Charge (each as defined in the Supplemental Order) as Minimum Reserve Account Balances pursuant to this Order, in accordance with the Plan and the Debtors' Stipulation and Agreement with Wells Fargo, N.A. Regarding Sale Order and Release of Liens and Claims dated August 30,
2020.
TERMINATION OF CCAA PROCEEDINGS
14. THIS COURT ORDERS that upon service by the Information Officer of an executed
d and that to the
Termination Certificate") certifying that the Effective Date has occurr~ . '
AA
knowledge of the Information Officer, all matters to be attended to in connection with theseCC
proceedings have been completed, these CCAA proceedings shall be terminated without any otheract or formality (the "CCAA Termination Time"); provided that, nothing herein impacts the validity of any Orders made in these CCAA proceedings or any actions or steps taken by any Person in connection therewith.
15. THIS COURT ORDERS that the Administration Charge and the Directors' Charge shall be terminated, released and discharged at the CCAA Termination Time without any other act or formality.
16. THIS COURT ORDERS that effective at the CCAA Termination Time, A&M shall be and is discharged as the Information Officer in these proceedings, provided that the Information Officer shall continue to have the benefit of the provisions of all Orders made in these proceedings, including all approvals, protections and stays of proceedings in favour of the Information Officer. 17. THIS COURT ORDERS AND DECLARES that effective at the CCAA Termination Time, A&M and Torys shall be released and discharged from any and all liability that A&M and Torys now has or may hereafter have by reason of, or in any way arising out of, the acts or omissions of A&M while acting in its capacity as Information Officer and Torys while acting in its capacity as counsel to the Information Officer, save and except for any gross negligence or wilful misconduct on the Information Officer's part. Without limiting the generality of the foregoing, upon the filing of the Infonnation Officer's Termination Certificate, A&M and Torys shall be forever released and discharged from any and all liability relating to matters that were raised, or which could have been raised, in the within CCAA proceedings, save and except for any gross negligence or wilful misconduct on the Information Officer's part.
regulatory or administrative body having jurisdiction in Canada or in the United States of America, to give effect to this Order and to assist the Chapter 11 Debtors, the Foreign Representative, the Information Officer, and their respective counsel and agents in carrying out the terms of this Order. All courts, tribunals, regulatory and administrative bodies are hereby respectfully requested to make such orders and to provide such assistance to the Chapter 11 Debtors, the Foreign Representative and the Information Officer, the latter as an officer of this Court, as may be necessary or desirable to give effect to this Order, or to assist the Chapter 11 Debtors, the Foreign Representative, the Information Officer, and their respective counsel and agents in carrying out the terms of this Order.
20. THIS COURT ORDERS that each of the Chapter 11 Debtors, the Foreign Representative and the Information Officer be at liberty and is hereby authorized and empowered to apply to any court, tribunal, regulatory or administrative body, wherever located, for the recognition of this Order and for assistance in carrying out the terms of this Order.
SCHEDULE “A”
UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE --- x : In re : Chapter 11 :
BBGI US, INC., et al., : Case No. 20–11785 (CSS)
:
Debtors.1 : (Jointly Administered)
:
--- x Re: D.I. 957
ORDER CONFIRMING AMENDED JOINT CHAPTER 11 PLAN OF LIQUIDATION FOR BBGI US, INC. AND ITS AFFILIATED DEBTORS
Upon the filing by BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.) and its affiliated debtors, as debtors and debtors in possession in the above-captioned chapter 11 cases (collectively, the “Debtors”)2 of the Amended Joint Chapter 11 Plan of Liquidation for BBGI US,
Inc. and Its Affiliated Debtors [D.I. 957] (as amended or modified in accordance with its terms,
the “Plan”) which is attached hereto as Exhibit A; and the Court previously having approved the Disclosure Statement and the solicitation procedures related to the Disclosure Statement and the solicitation of acceptances and rejections of the Plan, in each case pursuant to the Disclosure Statement Order; and the Debtors having served the Disclosure Statement on the holders of Claims and Interests pursuant to the Order (I) Approving Disclosure Statement and Form and Manner of
1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, as applicable, are BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.) (8883); Brooks Brothers Far East Limited (N/A); BBD Holding 1, LLC (N/A); BBD Holding 2, LLC (N/A); BBDI, LLC (N/A), BBGI International, LLC (f/k/a Brooks Brothers International, LLC) (N/A); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC) (3846); Deconic Group LLC (0969); Golden Fleece Manufacturing Group, LLC (5649); RBA Wholesale, LLC (0986); Retail Brand Alliance Gift Card Services, LLC (1916); Retail Brand Alliance of Puerto Rico, Inc. (2147); 696 White Plains Road, LLC (7265); and BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.) (4709). The Debtors’ corporate headquarters and service address is 100 Phoenix Ave., Enfield, CT 06082.
Notice of Disclosure Statement Hearing, (II) Establishing Solicitation, Voting, and Related Procedures, (III) Scheduling Confirmation Hearing, (IV) Establishing Notice and Objection Procedures for Confirmation of Plan, and (V) Granting Related Relief [D.I. 954] (the “Disclosure Statement Order”), see Affidavit of Service of Solicitation Materials [D.I. 1005] (the “Solicitation Affidavit”); and the Debtors having filed the documents comprising the Plan Supplement on February 19, 2021 and March 3, 2021 [D.I. 1046 and 1086] (collectively, and as may be further amended or supplemented, the “Plan Supplement”); and the Court having considered the Declaration of Adrian Frankum in Support of Confirmation of Amended Joint
Chapter 11 Plan of Liquidation For BBGI US, Inc. and Its Affiliated Debtors; and the Court having
considered the record in these chapter 11 cases, the stakeholder support for the Plan evidenced on the record and in the Declaration of Craig E. Johnson of Prime Clerk, LLC Regarding the
Solicitation of Votes and Tabulation of Ballots Cast on the Amended Joint Chapter 11 Plan of Liquidation for BBGI US, Inc. and Its Affiliated Debtors, filed on March 3, 2021 [D.I. 1085]
(the “Voting Certification”), the compromises and settlements embodied in and contemplated by the Plan, the briefs and arguments regarding confirmation of the Plan, the evidence regarding confirmation of the Plan, and the hearing on confirmation of the Plan having been held on March 5, 2021 (the “Confirmation Hearing”); and after due deliberation:
THE COURT HEREBY FINDS:
I. The findings and conclusions set forth herein and on the record of the
Confirmation Hearing constitute the Court’s findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure, as made applicable herein by Bankruptcy Rules 7052 and 9014. To the extent any of the following findings of fact constitute conclusions of law, they are adopted as such. To the extent any of the following conclusions of law constitute findings
II. The Debtors are eligible debtors under section 109 of the Bankruptcy Code, and, pursuant to Rule 9013-1(f) of the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of Delaware (the “Local Rules”), the Debtors consent to entry of a final order by the Court in accordance with the terms set forth herein to the extent that it is later determined that the Court, absent consent of the parties, cannot enter final orders or judgments consistent with Article III of the United States Constitution. Venue is proper before the Court pursuant to 28 U.S.C. §§ 1408 and 1409. The Debtors are proper plan proponents under section 1121(a) of the Bankruptcy Code.
III. The Court has jurisdiction to consider this matter pursuant to 28 U.S.C. §§ 157 and 1334, and the Amended Standing Order of Reference from the United States District Court of Delaware, dated February 29, 2012. This is a core proceeding pursuant to 28 U.S.C. § 157(b) and this Court has jurisdiction to enter a final order with respect thereto.
IV. Each of the Debtors has met the burden of proving that the Plan satisfies the elements of 1129(a) and (b) of the Bankruptcy Code by a preponderance of the evidence.
V. The Plan was solicited in good faith and in compliance with applicable
VI. The Plan has been proposed in good faith and not by any means forbidden by law. In so finding, the Court has considered the totality of the circumstances of these cases, and found that all constituencies acted in good faith. The Plan is the result of extensive, good faith, arm’s length negotiations among the Debtors and their principal constituencies.
VII. Votes to accept or reject the Plan have been solicited and tabulated fairly, in good faith, and in a manner consistent with the Bankruptcy Code, the Bankruptcy Rules and the Disclosure Statement Order.
VIII. The Plan does not “discriminate unfairly” and is “fair and equitable” with respect to the Classes that are impaired and are deemed to reject the Plan, because no Class senior to any rejecting Class is being paid more than in full and the Plan does not provide a recovery on account of any Claim or Interest that is junior to such rejecting Classes.
IX. The releases contained in Section 10 of the Plan are an essential component of the Plan. In addition, the third-party release contained therein is consensual in that all parties to be bound by such release were given due and adequate notice thereof and sufficient opportunity and instruction to elect to opt out of such release. In addition, the releases contained in Section 10.4 of the Plan are: (a) in exchange for the good and valuable consideration provided by the Released Parties; (b) a good faith settlement and compromise of the claims released by such section; (c) in the best interests of the Debtors and all holders of Claims and Interests; (d) fair, equitable, and reasonable; and (e) given and made after due notice and opportunity for hearing.
X. The exculpation provided by Section 10.6 of the Plan for the benefit of the Exculpated Parties is appropriately tailored to the circumstances of these cases.
XI. The Plan does not discriminate unfairly among the different classes of
Bankruptcy Code because grounds and justifications exist for treating the classes differently in these cases.
FURTHER, IT IS HEREBY ORDERED THAT: A. Confirmation of the Plan
1. The Plan is confirmed and approved in all respects.
2. Any and all objections to the Plan that have not been withdrawn or resolved prior to the Confirmation Hearing are hereby overruled.
3. The documents contained in the Plan Supplement are integral to the Plan
and are approved by the Court and the Debtors, the Liquidation Trustee, and the Litigation Trustee are authorized to take all actions required under the Plan and the Plan Supplement to effectuate the Plan and the transactions contemplated therein.
4. The terms of the Plan, including the Plan Supplement and the exhibits
thereto are incorporated herein by reference and are an integral part of this Confirmation Order. The terms of the Plan, the Plan Supplement, all exhibits thereto, and all other relevant and necessary documents executed or to be executed in connection with the transactions contemplated by the Plan shall be effective and binding as of the Effective Date. Subject to the terms of the Plan, including the consent rights incorporated therein, the Debtors reserve the right to alter, amend, update or modify the Plan Supplement before the Effective Date. The failure to specifically include or refer to any particular article, section, or provision of the Plan, the Plan Supplement, or any related document in this Confirmation Order does not diminish or impair the effectiveness or enforceability of such article, section, or provision.
5. This Confirmation Order shall constitute all approvals and consents
necessary or appropriate for the implementation or consummation of the Plan. Pursuant to the applicable provisions of the General Corporation Law of the State of Delaware, other applicable non-bankruptcy law, and section 1142(b) of the Bankruptcy Code, no action of the respective directors or stockholders of the Debtors shall be required to authorize the Debtors to enter into, execute, deliver, file, adopt, amend, restate, consummate, or effectuate, as the case may be, the Plan and any contract, instrument, or other document to be executed, delivered, adopted, or amended in connection with implementation of the Plan.
6. Each federal, state, commonwealth, local, foreign or other governmental
agency is authorized to accept for filing and/or recording any and all documents, mortgages and instruments necessary or appropriate to effectuate, implement or consummate the transactions contemplated by the Plan and this Confirmation Order.
7. On or after the Effective Date, at the Liquidation Trustee’s direction: any of the Debtor Affiliates may be merged into BB Parent and the Liquidation Trustee may complete the winding up of such Debtor Affiliates without the necessity for any other or further actions to be taken by or on behalf of such dissolving Debtor or its shareholders or any payments to be made in connection therewith (including the payment of any franchise taxes), other than the filing of a certificate of dissolution, cancellation, and/or merger with the appropriate governmental authorities, and any such certificate of dissolution, cancellation, and/or merger may be filed by the Liquidation Trustee without need for any authorization, signature or other act of any Person or Entity, including without limitation any holder of any Claim or Interest. On or after the Effective Date, as determined by the Liquidation Trustee, BB Canada shall be dissolved in accordance with the Confirmation Recognition Order and applicable Canadian Law. After the Effective Date, the Liquidation Trustee or his designee is authorized to and shall, subject to applicable non-bankruptcy
law and consistent with the implementation of this Plan, dissolve, liquidate, or take such other similar action with respect BB Parent and complete the winding up of BB Parent as expeditiously as practicable without the necessity for any other or further actions to be taken by or on behalf of BB parent or its shareholders or members, as applicable, or any payments to be made in connection therewith (including the payment of any franchise taxes), other than the filing of a certificate of dissolution with the appropriate governmental authorities.
8. The PBGC Settlement satisfies the requirements of Bankruptcy Rule 9019
and is approved. The compromises and settlements set forth in the Plan, as reflected in the relative distributions and recoveries of holders of Claims under the Plan, are approved pursuant to Bankruptcy Rule 9019(a), including with respect to the PBGC Settlement, and will be effective immediately and binding on all parties in interest on the Effective Date.
9. For the avoidance of doubt, pursuant to Bankruptcy Rule 3020(c)(1), the
following provisions in the Plan are hereby approved and will be effective immediately on the Effective Date without further order or action by the Court, any of the parties to such release, or any other Entity: (a) Releases by the Debtors (Section 10.4); (b) Third-Party Releases (Section 10.5); (c) PBGC Release (Section 10.10); (d) Exculpation (Section 10.6); and (e) Injunction (Section 10.7).
10. The Court finds that entry into the Liquidation Trust Agreement and the
Liquidation Trust; (iii) William T. Reid, IV, PPLC, as Litigation Trustee; and (iv) 39-15 Skillman Realty Co. LLC., Workers United, Trajes Mexicanos S.A. de C.V., Swiss Garments Company, and the Pension Benefits Guaranty Corporation, as members of the Litigation Trust Oversight Board. The Debtors, the Liquidation Trustee, the Delaware resident trustee, and/or the Litigation Trustee, as applicable, are hereby authorized to take all actions, on or prior to the Effective Date, as may be necessary or appropriate to form the Liquidation Trust and/or Litigation Trust consistent with the terms of the Plan and the respective trust agreement.
11. Except as otherwise may be set forth in the Plan or the Confirmation Order, on the Effective Date, (i) the Liquidation Trust Assets shall vest in the Liquidation Trust free and clear of any claim, Lien, encumbrance or other interest and (ii) the Litigation Trust Assets shall vest in the Litigation Trust free and clear of any claim, Lien, encumbrance or other interest.
12. Pursuant to section 1146 of the Bankruptcy Code, (i) the issuance, transfer or exchange of any securities, instruments or documents, (ii) the creation of any lien, mortgage, deed of trust or other security interest, (iii) any sale transactions consummated by the Debtors and approved by the Bankruptcy Court on and after the Confirmation Date through and including the Effective Date of the Plan, including any transfers effectuated pursuant to the Plan, (iv) any assumption, assignment, or sale by the Debtors of their interests in unexpired leases of nonresidential real property or executory contracts pursuant to section 365(a) of the Bankruptcy Code, and (v) the issuance, renewal, modification, or securing of indebtedness by such means, and the making, delivery or recording of any deed or other instrument of transfer under, in furtherance of, or in connection with, the Plan, including this Confirmation Order, shall not be subject to any document recording tax, stamp tax, conveyance fee or other similar tax, mortgage tax, real estate transfer tax, mortgage recording tax, Uniform Commercial Code filing or recording fee, regulatory
filing or recording fee, sales tax, use tax or other similar tax or governmental assessment. Consistent with the foregoing, each recording officer for any county, city or Governmental Unit in which any instrument hereunder is to be recorded is authorized, pursuant to this Confirmation Order, to accept such instrument without requiring the payment of any filing fees, documentary stamp tax, deed stamps, stamp tax, transfer tax, intangible tax or similar tax.
13. In furtherance of the transfer of the Liquidation Trust Assets to the
Liquidation Trust on the Effective Date, the Liquidation Trust shall be entitled to all refunds, credits, rebates, abatements or other recovery for any taxes (including, for the avoidance of doubt, income taxes, value added taxes and customs duties), together with any interest due thereon or penalty rebate arising therefrom, of the Debtors (and the Liquidation Trust shall bear responsibility for all tax liabilities of the Debtors for taxable periods ended on or before the dissolution of the Debtors, to the extent not discharged by the Plan or provided for payment or otherwise satisfied in the Plan).
15. The Debtors shall cause to be served a notice of the entry of this Confirmation Order (the “Confirmation Date Notice”), upon (a) all parties listed in the creditor matrix maintained by Prime Clerk, LLC, and (b) such additional persons and entities as deemed appropriate by the Debtors, no later than five (5) business days after the Confirmation Date. Within seven (7) business days after the Confirmation Date, or as soon as reasonably practicable thereafter, the Debtors shall cause the Confirmation Date Notice to be published in the (a) the national editions of one of USA Today or The New York Times, (b) the national edition of The
Globe and Mail in Canada, and (c) other national, local, or foreign newspapers, trade journals, or
publications, if any, as the Debtors, after consultation with the Committee, deem appropriate. 16. The Debtors shall cause to be served a notice of the Effective Date, upon (a) all parties listed in the creditor matrix maintained by Prime Clerk, LLC, and (b) such additional persons and entities as deemed appropriate by the Debtors, no later than five (5) business days after the Effective Date.
B. Administrative Expense Claims Bar Date
17. Except as otherwise provided in the Bar Date Orders or the Plan, requests for payment of Administrative Expense Claims incurred on and after September 1, 2020 and prior to the Effective Date, other than Fee Claims of Professionals, must be filed with the Bankruptcy Court and served on the Debtors or the Liquidation Trust, as applicable, Prime Clerk, LLC in their capacity as the Debtors’ claims and noticing agent, and the U.S. Trustee within thirty (30) days from the date of service of the Confirmation Date Notice. Such proof of Administrative Expense Claim must include at a minimum: (i) the name of the applicable Debtor that is purported to be liable for the Administrative Expense Claim and if the Administrative Expense Claim is asserted against more than one Debtor, the exact amount asserted to be owed by each such Debtor; (ii) the
Administrative Expense Claim; (iv) the basis of the Administrative Expense Claim; and (v) supporting documentation for the Administrative Expense Claim. FAILURE TO FILE AND SERVE SUCH PROOF OF ADMINISTRATIVE EXPENSE CLAIM TIMELY AND PROPERLY SHALL RESULT IN SUCH CLAIM BEING FOREVER BARRED AND DISCHARGED. IF FOR ANY REASON ANY SUCH ADMINISTRATIVE EXPENSE CLAIM IS INCAPABLE OF BEING FOREVER BARRED AND DISALLOWED, THEN THE HOLDER OF SUCH CLAIM SHALL IN NO EVENT HAVE RECOURSE TO ANY PROPERTY TO BE DISTRIBUTED PURSUANT TO THE PLAN.
C. Additional Matters
18. Notwithstanding anything provided in the Plan or this Confirmation Order to the contrary, pursuant to the terms of the Stipulation and Agreement Between UniCredit S.p.A
– New York Branch and BBGI US, Inc. Regarding the Secured Claim of UniCredit S.p.A – New York Branch (the “UniCredit Stipulation”) between UniCredit S.p.A. (“UniCredit”) and the
Debtors, which was approved by the Court on February 3, 2021 [D.I. 983], UniCredit and its predecessors, successors and assigns, subsidiaries, affiliates, current and former officers, directors, principals, shareholders, members, partners, employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, and other professionals, and such persons’ respective heirs, executors, estates, servants and nominees shall be a “Released Party” for the purposes of sections 10.4, 10.5 and 10.8 of the Plan; provided, that, notwithstanding anything in the Plan, this Confirmation Order, or the UniCredit Stipulation, nothing shall relieve the Debtors or UniCredit of their obligations under the UniCredit Stipulation or any agreement entered into contemporaneously therewith.
19. Nothing in this Confirmation Order and/or the Plan (including, without
enjoin, impair or otherwise affect the claims, if any, of the Board of Trustees of the National Retirement Fund, the National Retirement Fund, the Legacy Plan of the National Retirement Fund (f/k/a the Pension Plan of the National Retirement Fund), the Board of Trustees of the Amalgamated Retail Retirement Fund, the Amalgamated Retail Retirement Fund, the Board of Trustees of the Retirement Plan of the Amalgamated Insurance Fund, the Amalgamated Insurance Fund and the Retirement Plan of the Amalgamated Insurance Fund (collectively, the “Benefit Plans”) against non-Debtors that are part of the Debtors’ “controlled group” (as set forth in 26 U.S.C. § 414 and Section 4001(b) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), 29 U.S.C. § 1301(b), and the regulations implementing those provisions) (collectively, the “Non-Debtor Controlled Group”) for asserted withdrawal liability and mass withdrawal liability, as applicable, under ERISA. For the avoidance of doubt, the Benefit Plans’ rights to pursue withdrawal liability and mass withdrawal liability claims, as applicable, against individuals and/or non-Debtor entities the Benefit Plans assert are part of the Non-Debtor Controlled Group, are not impaired by this Confirmation Order and/or the Plan.
20. Notwithstanding Section 6.4 of the Plan, the Debtors shall reserve and set aside for Winner Way Industrial Limited (“WW”) the amount of Three Million Four Hundred Fifty Seven Thousand One Hundred Thirty Three Dollars and Ninety Six Cents ($3,457,133.96) (as set forth in Administrative Expense Claims filed (in parts) at numbers 1367, 1368, 1370, 1371, 1382, and 1383). Notwithstanding any provision in the Plan or this Confirmation Order, WW reserves all rights to assert that the Debtors shall be permitted to set-off any alleged Avoidance Action or other Causes of Action against any Allowed Claim (whether an Administrative Expense Claim or other Claim) of WW only to the extent that the Debtors have obtained a final judgment liquidating such Avoidance Action or other Causes of Action, and the Debtors reserve all rights to
assert that an alleged Avoidance Action or other Cause of Action may otherwise be set-off against any Allowed Claim of WW. Notwithstanding anything in the Plan, Confirmation Order, Disclosure Statement or Ballots to the contrary, WW shall not be deemed to be a Releasing Party (as defined in Section 1.123 of the Plan) and, for the avoidance of doubt, WW shall not be deemed to give any releases to non-Debtors under the Plan. WW (a) shall not be deemed to give any releases to non-Debtors under the Plan and (b) reserves its rights to distributions on its claims (whether Administrative Expense Claims or General Unsecured Claims) under the Plan and this Confirmation Order and the Debtors reserve all of their defenses to WW’s claims (whether Administrative Expense Claims or General Unsecured Claims) and all of the Debtors’ claims and other rights against WW.
21. Notwithstanding anything in the Plan or this Confirmation Order to the
this Confirmation Order to the contrary, including without limitation Sections 10.5 and 10.7 of the Plan, any and all setoff and recoupment rights and defenses of each of the DV Entities (including in their capacities as former directors and officers) and Shareholders are expressly preserved and shall not be enjoined, waived, released, modified, discharged or impaired, nor shall they be expanded, enhanced, or enlarged, in any manner by the Plan or this Confirmation Order. None of the DV Entities (including in their capacities as former directors and officers) or Shareholders shall be deemed to be enjoined in any manner by Sections 10.5 or 10.7 of the Plan from asserting or prosecuting defenses of any kind or nature, including without limitation affirmative defenses and defenses in the nature of setoff or recoupment (including with respect to any claims, counterclaims, cross-claims, or third-party claims), in any litigation commenced against them, nor shall the Litigation Trustee be restricted in any manner from contesting those defenses. Notwithstanding Section 12.14 of the Plan, the CDV Parties (as defined in their notice of appearance filed at D.I. 19) and Delfin SARL (which filed its notice of appearance at D.I. 241), shall not be required to file renewed Bankruptcy Rule 2002 requests in order to continue to receive documents after the Effective Date. Notwithstanding Section 6.4 of the Plan, the Debtors shall reserve the full amount of the Administrative Expense Claim asserted by 346 Madison Avenue LLC (assigned proof of claim number 1223), or such other amount as may be ordered by the Court prior to the Effective Date after notice to 346 Madison Avenue LLC and an opportunity for hearing.
22. Notwithstanding anything in the Plan to the contrary, including Sections 10.2, 10.5, and 10.8, as a result of the Plan, TAL Global Alliances and Castle Apparel Limited shall not be deemed to (i) be a Releasing Party, whether as a holder of a Claim or Interest or otherwise, and without needing to submit or file an “opt out” ballot as a member of a voting class, or an objection or reservation of rights as a member of a non-voting class; (ii) be granted a release
or discharge under Section 10.5 of the Plan; (iii) be enjoined by Section 10.5 of the Plan; (iv) compromise or release any claim against a non-Debtor party or waive rights related thereto; or (v) be bound by Section 10.8 of the Plan. Notwithstanding Section 12.14 of the Plan, TAL Global Alliances and Castle Apparel Limited (as defined in their notice of appearance filed at D.I. 282) shall not be required to file renewed Bankruptcy Rule 2002 requests in order to continue to receive documents after the Effective Date.
23. Notwithstanding anything to the contrary in the Plan, the Plan Supplement or Confirmation Order or any other documents related to any of the foregoing, nothing shall modify the rights, if any, of any party (including any landlord under a rejected Unexpired Lease) to an Unexpired Lease of non-residential real property which the Debtors have not assumed to assert any right of setoff or recoupment that such party may have under applicable bankruptcy or non-bankruptcy law (including the express assertion of such setoff or recoupment through a timely filed Proof of Claim), including, but not limited to: (i) the ability, if any, of such parties to setoff or recoup a security deposit held pursuant to the terms of their Unexpired Lease(s) with the Debtors; (ii) assertion of rights of setoff or recoupment, if any, in connection with Claims reconciliation; or (iii) assertion of setoff or recoupment as a defense, if any, to any claim or action by the Debtors or any representative or successors to the Debtors, including the Plan Trusts and Plan Trustees, as applicable. The Debtors’ rights with respect thereto are expressly reserved.
24. Notwithstanding anything to the contrary in the Plan, or in any notice related thereto, the ASO Agreement (as defined in the Objection of Cigna to Notice of Cure Costs and
Potential Assumption and Assignment of Executory Contracts and Unexpired Leases in Connection with Sale Transaction [D.I. 385]) through which Cigna Health and Life Insurance
plan, shall be assumed and assigned to the Liquidation Trust under the Plan, and, in lieu of cure, all obligations due and unpaid under the ASO Agreement accruing prior to the Effective Date shall be unimpaired and reinstated, and nothing in this Confirmation Order or 11 U.S.C. § 365 shall affect such obligations.
25. Notwithstanding anything in the Plan, Confirmation Order, or Disclosure
Statement to the contrary, each of (i) Oracle America, Inc., successor in interest to MICROS Systems, Inc., and (ii) Proofpoint, Inc. shall not be deemed to be a Releasing Party (as defined in Section 1.123 of the Plan).
26. On or within sixty (60) days after the Effective Date, the Debtors and/or Liquidation Trust, as applicable, shall file with the Texas Comptroller of Public Accounts (the “Texas Comptroller”) all of the unclaimed property reports due to be filed on or before the Effective Date and identify the known unclaimed property (the “Texas Unclaimed Property”) being held under Texas Property Code, Title 6, Chapters 72-76 and other applicable Texas laws (the “Texas Unclaimed Property Laws”). With respect to any such Texas Unclaimed Property timely remitted following the filing of the reports, the Texas Comptroller will not seek payment of any interest or penalty by the Debtors or the Liquidation Trust. Notwithstanding section 362 of the Bankruptcy Code and any injunction contained in the Plan, the Texas Comptroller and its agents may commence an audit of the Debtors in accordance with the Texas Unclaimed Property Laws (the “Texas Unclaimed Property Audit”). For the avoidance of doubt, to the extent any Texas Unclaimed Property does not constitute property of the Estates, nothing in this Confirmation Order or the Plan precludes the Texas Comptroller from pursuing recovery of such amounts. The Texas Comptroller may amend any Proofs of Claim in these Chapter 11 Cases following the Effective Date as a result of the filing of any property reports; provided, however, that the Debtors
or Liquidation Trust, as applicable, reserve all rights to object to such proofs of Claim on any and all grounds. This provision is not an admission by any party that (i) such liability exists, (ii) any such liability is or is not a non-priority Claim arising prior to the Petition Date and/or (iii) any interest and/or penalties are subject to assessment. Nothing herein precludes Debtors and Liquidation Trust from compliance with continued obligations pursuant to Texas Unclaimed Property Laws. The Debtors’, Liquidation Trust’s, and Texas Comptroller’s rights and defenses with respect to any allegations and claims asserted against the Debtors arising from or relating to Texas Unclaimed Property Laws, including but not limited to the Texas Unclaimed Property Audit, are hereby reserved.
27. Notwithstanding any provision to the contrary in the Plan, the Plan
Supplement, this Confirmation Order or any implementing Plan documents (collectively, “Documents”):
Bankruptcy Code and applicable law; (6) release, exculpate, enjoin, impair or discharge any non-Debtor from any claim, liability, suit, right or Cause of Action of the United States nor shall the United States be enjoined from bringing any claim, suit, Cause of Action or other proceeding against any non-Debtor for any liability whatsoever; (7) affect any setoff or recoupment rights of the United States (and such rights and all of the Debtors’ non-bankruptcy defenses are preserved); (8) require the United States to file an administrative claim in order to receive payment for any liability described in Section 503(b)(1)(B) and (C) (in accordance with Section 503(b)(1)(D) of the Bankruptcy Code); (9) be deemed an approval or consent by the United States without compliance with all applicable legal requirements and approvals under non-bankruptcy law; or (10) be construed as a compromise or settlement of any liability, Claim, Cause of Action or interest of the United States. Without limiting the foregoing but for the avoidance of doubt, (i) the United States reserves, and the Documents are without prejudice to, any and all rights or Causes of Action the United States has or may have against any surety under any bond, and nothing shall release, discharge, or exculpate any surety from its obligations or liabilities pursuant to non-bankruptcy law, including any obligation or liability of any surety of the Debtors with respect to any bond, and (ii) the Debtors reserve any and all defenses with respect thereto.
ii. Liens securing Claims of the United States that are allowed pursuant to the Plan or the Bankruptcy Code (if any) shall be retained until Claim, with interest (to the extent such interest is allowed pursuant to the Bankruptcy Code and applicable law), is paid in full. Administrative Expense Claims of the United States that are allowed pursuant to the Plan or the Bankruptcy Code shall accrue interest and penalties as provided by non-bankruptcy law until paid in full. Priority Tax Claims of the United States that are allowed pursuant to the Plan or the Bankruptcy Code will be paid in accordance with Section 1129(a)(9)(C) of the Bankruptcy Code. To the extent allowed
28. Upon the later of the Effective Date and the formation of the Litigation Trust, any attorney-client privilege, work-product protection, or other privilege, protection, or immunity held by the Creditors’ Committee (“Privilege”) is hereby transferred, assigned, given over to, and shall vest in the Litigation Trust, and the Litigation Trust shall have the exclusive authority and sole discretion to maintain or waive any such Privilege or other protection. The disclosure and/or provision of any Privilege from the Creditors’ Committee to the Litigation Trust is not intended to and shall not void or waive any applicable Privilege.
D. Miscellaneous
29. The Plan shall not become effective unless and until all conditions set forth in Section 9.1 of the Plan have been satisfied or waived pursuant to Section 9.2 of the Plan.
30. Notwithstanding Bankruptcy Rule 3020(e), the terms and conditions of this Confirmation Order will be effective and enforceable immediately upon its entry.
31. Except as otherwise provided in this Confirmation Order, if any or all of the provisions of this order are hereafter reversed, modified, vacated or stayed by subsequent order of this Court, or any other court, such reversal, stay, modification, or vacatur shall not affect the validity or enforceability of any act, obligation, indebtedness, liability, priority, or lien incurred or undertaken by the Debtors, the Liquidation Trust and/or the Litigation Trust, as applicable, prior to the effective date of such reversal, stay, modification, or vacatur. Notwithstanding any such reversal, stay, modification or vacatur of this Confirmation Order, any such act or obligation incurred or undertaken pursuant to, or in reliance on, this Confirmation Order prior to the effective date of such reversal, stay, modification, or vacatur shall be governed in all respects by the provisions of this Confirmation Order, the Plan, the Plan Supplement, or any amendments or modifications to the foregoing.
32. The provisions of the Plan and this Confirmation Order, including the findings of fact and conclusions of law set forth herein, are nonseverable and mutually dependent.
33. To the extent of any inconsistency between this Confirmation Order and the Plan, this Confirmation Order shall govern.
34. Except as otherwise may be provided in the Plan or herein, notice of all subsequent pleadings in these cases after the Effective Date shall be limited to the following parties: (i) the Debtors and their counsel, (ii) the U.S. Trustee, (iii) the Liquidation Trustee, (iv) the Litigation Trustee and (v) any party known to be directly affected by the relief sought.
Dated: March 5th, 2021 Wilmington, Delaware
CHRISTOPHER S. SONTCHI
Exhibit A Plan
UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE --- x : In re : Chapter 11 :
BBGI US, INC., et al., : Case No. 20–11785 (CSS)
:
Debtors.1 : (Jointly Administered)
: --- x
AMENDED JOINT CHAPTER 11 PLAN OF LIQUIDATION FOR BBGI US, INC. AND ITS AFFILIATED DEBTORS
WEIL, GOTSHAL & MANGES LLP Garrett A. Fail (admitted pro hac vice) David J. Cohen (admitted pro hac vice) 767 Fifth Avenue
New York, New York 10153 Telephone: (212) 310-8000 Facsimile: (212) 310-8007
RICHARDS, LAYTON & FINGER, P.A. Mark D. Collins (No. 2981)
Zachary I. Shapiro (No. 5103) Christopher M. De Lillo (No. 6355) One Rodney Square
910 N. King Street
Wilmington, Delaware 19801 Telephone: (302) 651-7700 Facsimile: (302) 651-7701
Attorneys for Debtors and Debtors in Possession
Dated: January 27, 2021 Wilmington, Delaware
1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND INTERPRETATION. ... 1
SECTION 2. ADMINISTRATIVE EXPENSE AND PRIORITY CLAIMS. ... 16
2.1 Administrative Expense Claims. ... 16
2.2 Fee Claims. ... 16
2.3 Priority Tax Claims... 17
SECTION 3. CLASSIFICATION OF CLAIMS AND INTERESTS. ... 18
3.1 Classification in General. ... 18
3.2 Formation of Debtor Groups for Convenience Only. ... 18
3.3 Summary of Classification. ... 18
3.4 Special Provision Governing Unimpaired Claims. ... 19
3.5 Elimination of Vacant Classes. ... 19
3.6 Voting Classes; Presumed Acceptance by Non-Voting Classes. ... 19
3.7 Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the
Bankruptcy Code. ... 19
SECTION 4. TREATMENT OF CLAIMS AND INTERESTS. ... 20 4.1 Other Priority Claims (Class 1). ... 20
4.2 Secured Claims (Class 2). ... 20
4.3 PBGC Claims (Class 3). ... 21
4.4 General Unsecured Claims (Class 4). ... 21
4.5 Intercompany Claims (Class 5). ... 21
4.6 Debtor Interests (Class 6). ... 22
4.7 Subordinated Claims (Class 7). ... 22
SECTION 5. MEANS FOR IMPLEMENTATION. ... 22 5.1 Joint Chapter 11 Plan. ... 22
5.2 Limited Substantive Consolidation. ... 22
5.3 PBGC Settlement. ... 24
5.4 Liquidation Trust. ... 24
5.5 Litigation Trust. ... 31
5.6 Plan Trusts Tax Matters... 37
5.7 Merger of Debtors... 39
5.8 Elimination of Duplicate Claims. ... 40
5.9 Dissolution of BB Parent. ... 40
5.10 Corporate Action. ... 40 5.11 Directors, Officers, Managers, Members and Authorized Persons of the
Debtor. ... 40
SECTION 6. DISTRIBUTIONS. ... 42 6.1 Distributions Generally. ... 42
6.2 Distribution Record Date. ... 43
6.3 Delivery of Distributions... 43
6.4 Disputed Administrative Claims Holdback. ... 43
6.5 Manner of Payment Under Plan. ... 44
6.6 Minimum Cash Distributions. ... 44
6.7 Setoffs. ... 44
6.8 Distributions After Effective Date. ... 44
6.9 Allocation of Distributions Between Principal and Interest. ... 45
6.10 No Postpetition Interest on Claims. ... 45 6.11 No Distribution in Excess of Amount of Allowed Claim. ... 45 6.12 Securities Registration Exemption. ... 45 SECTION 7. PROCEDURES FOR DISPUTED CLAIMS. ... 45
7.1 Objections to Claims. ... 45
7.2 Allowance of Claims. ... 45
7.3 Estimation of Claims. ... 46
7.4 No Distributions Pending Allowance... 46
7.5 Reserve on Account of Disputed Claims. ... 46
7.6 Resolution of Claims. ... 47
7.7 Late Filed Claims. ... 48
7.8 Amendments to Claims. ... 48
7.9 Insured Claims. ... 48
SECTION 8. EXECUTORY CONTRACTS AND UNEXPIRED LEASES. ... 48
8.1 Assumption and Assignment of Executory Contracts and Unexpired
Leases. ... 48
8.2 Indemnification Obligations. ... 48
8.3 Claims Based on Rejection of Executory Contracts and Unexpired Leases. ... 49
8.4 Cure of Defaults for Assumed Executory Contracts and Unexpired Leases. ... 49
8.5 Modifications, Amendments, Supplements, Restatements, or Other
Agreements. ... 50
8.6 Reservation of Rights. ... 50
SECTION 9. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE. ... 50
9.1 Conditions Precedent to the Effective Date. ... 50
9.2 Waiver of Conditions Precedent. ... 51
9.3 Substantial Consummation. ... 51
9.4 Effect of Vacatur of Confirmation Order. ... 51
SECTION 10. SETTLEMENT, RELEASES, INJUNCTIONS, AND RELATED
TABLE OF CONTENTS (continued)
10.4 Releases by the Debtors. ... 52 10.5 Releases By Holders of Claims and Interests. ... 53 10.6 Exculpation. ... 54 10.7 Injunction. ... 54 10.8 Waiver of Statutory Limitation on Releases. ... 55 10.9 Solicitation of the Plan... 55 10.10 PBGC Release. ... 56 SECTION 11. RETENTION OF JURISDICTION. ... 56 SECTION 12. MISCELLANEOUS PROVISIONS. ... 58 12.1 No Revesting of Assets. ... 58 12.2 Subordinated Claims. ... 58 12.3 Payment of Statutory Fees. ... 58 12.4 Dissolution of Creditors’ Committee. ... 59 12.5 Amendments. ... 59 12.6 Revocation or Withdrawal of the Plan... 59 12.7 Severability of Plan Provisions upon Confirmation. ... 59 12.8 Governing Law... 60 12.9 Time... 60 12.10 Additional Documents. ... 60 12.11 Immediate Binding Effect. ... 60 12.12 Successor and Assigns. ... 61 12.13 Entire Agreement. ... 61 12.14 Notices... 61
Each of the Debtors proposes the following joint chapter 11 plan of liquidation pursuant to section 1121(a) of the Bankruptcy Code. Capitalized terms used herein shall have the meanings set forth in Section 1.A.
SECTION 1. DEFINITIONS AND INTERPRETATION.
A. Definitions.
1.1. Administration Charge means the charge granted by the Canadian Court in the Recognition Proceedings on the Canadian Assets to secure certain professional fees and disbursements incurred in respect of the Recognition Proceedings.
1.2. Administrative Expense Claim means any Claim for costs and expenses of
administration during the Chapter 11 Cases pursuant to sections 328, 330, 363, 364(c)(1), 365, 503(b) or 507(a)(2) of the Bankruptcy Code, including, (i) the actual and necessary costs and expenses incurred after the Petition Date and through the Effective Date of preserving the Estates and operating the businesses of the Debtors; (ii) Fee Claims; and (iii) all fees and charges assessed against the Estates pursuant to section 1911 through 1930 of chapter 123 of title 28 of the United States Code, 28 U.S.C. §§ 1911-1930.
1.3. Administrative Expense Claims Bar Date means (i) December 18, 2020 at 5:00
p.m. (Eastern Time) for Administrative Expense Claims arising on or prior to August 31, 2020; and (ii) such date that is thirty (30) days following the Confirmation Date for Administrative Expense Claims arising on and after September 1, 2020 and prior to the Effective Date.
1.6. Allowed General Unsecured Claims Distribution Amount means, for the purpose of calculating Distributions of Liquidation Trust Assets or proceeds of the Litigation Trust Assets, as applicable, to be received by holders of Allowed General Unsecured Claims on account of such holders’ Liquidation Trust Beneficial Interests or Litigation Trust Beneficial Interests, the amount determined based on the following formula:
(a - b)
x
y
z
a = The amount of the Distribution to be made by the Liquidation Trustee or the
Litigation Trustee, as applicable, to holders of the Liquidation Trust Beneficial Interests or Litigation Trust Beneficial Interests, respectively.
b = The PBGC Claims Distribution Amount.
y = The aggregate amount of Allowed amount of General Unsecured Claims. z = The aggregate amount of Allowed and Disputed General Unsecured Claims
against the Debtors.
1.7. APA means that certain Asset Purchase Agreement entered into by and among
certain of the Debtors and SPARC, dated July 23, 2020, as amended by that certain First Amendment to the Asset Purchase Agreement dated as of August 11, 2020, as further amended by that certain Second Amendment to the Asset Purchase Agreement dated as of August 31, 2020, as may be amended, modified, or supplemented from time to time in accordance with the Sale Order.
1.8. Assumption Schedule means the schedule of Executory Contracts and
Unexpired Leases to be assumed or assumed and assigned by the Debtors pursuant to the Plan, which will be (i) in form and substance reasonably acceptable to the Creditors’ Committee, and (ii) included in the Plan Supplement, as may be amended, modified, or supplemented from time to time in accordance with the Confirmation Order.
1.9. Avoidance Action means any action commenced, or that may be commenced,
before or after the Effective Date pursuant to the Bankruptcy Code, CCAA, BIA or applicable non-bankruptcy law, including actions or remedies under sections 544, 545, 547, 548, 549, 550, or 551 of the Bankruptcy Code.
1.10. Ballot means each of the ballots distributed to the holders of Claims in Class 3 and Class 4.
1.11. Bankruptcy Code means title 11 of the United States Code, 11 U.S.C. §§ 101,
et seq., as amended from time to time, as applicable to the Chapter 11 Cases.
1.12. Bankruptcy Court means the United States Bankruptcy Court for the District of Delaware having jurisdiction over the Chapter 11 Cases and, to the extent of any reference made under section 157 of title 28 of the United States Code, the unit of such District Court having jurisdiction over the Chapter 11 Cases under section 151 of title 28 of the United States Code.
1.13. Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure as
Code, as amended from time to time, applicable to the Chapter 11 Cases, and any Local Rules of the Bankruptcy Court.
1.14. Bar Date means the dates fixed by order(s) of the Bankruptcy Court (including the Bar Date Orders, the Administrative Expense Claims Bar Date, or otherwise in this Plan or the Confirmation Order) by which any Persons, asserting a Claim against any Debtor must have filed a Proof of Claim or application for allowance of such Claim (as applicable) with the Bankruptcy Court against any such Debtor or be forever barred from asserting such Claim.
1.15. Bar Date Orders means that certain (i) Order (I) Establishing a General Bar
Date to File Proofs of Claim, (II) Establishing a Bar Date to file Proofs of Claim by Governmental Units, (III) Establishing an Amended Schedules Bar Date, (IV) Establishing A Rejection Damages Bar Date, (V) Approving the Form and Manner for Filing, (VI) Approving the Proposed Notice of Bar Date, and (VII) Granting Related Relief, entered by the Bankruptcy Court in the Chapter 11
Cases on August 11, 2020 [D.I. 366]; and (ii) Order (I) Establishing Bar Dates for (A) Filing
Proofs of Claim Against BBGI Canada Ltd., (B) Assertion of Certain Administrative Expense Claims, and (C) Filing Proofs of Claim for Alexis Bittar Customer Programs, (II) Approving the Form and Manner for Filing Proofs of Claim, (III) Approving the Proposed Notice Thereof, and (IV) Granting Related Relief entered by the Bankruptcy Court in these Chapter 11 Cases on
November 16, 2020 [D.I. 727].
1.16. BB Canada means BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.).
1.17. BB Parent means BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.).
1.18. BIA means the Bankruptcy and Insolvency Act R.S.C., 1985, c. B-3, as
amended.
1.19. Business Day means any day, other than a Saturday, Sunday or “legal holiday” (as defined in Bankruptcy Rule 9006(a)).
1.20. Canadian Assets means the assets, undertakings and properties of BB Canada at the applicable time, excluding any Canadian Collateral Proceeds.
1.21. Canadian Collateral Proceeds means the BB Canada asset sale proceeds as
defined in the Debtors’ Stipulation and Agreement with Wells Fargo N.A. Regarding Sale Order
and Release of Liens and Claims dated August 30, 2020, paid or to be paid to BB Parent in
accordance with the terms thereof and the Canadian Sale Order.
1.22. Canadian Court means the Ontario Superior Court of Justice (Commercial
List).
1.23. Canadian Sale Order means the recognition, approval and vesting order issued by the Canadian Court dated September 25, 2020 in the Recognition Proceedings.
1.25. Causes of Action means any action, Claim, cause of action, controversy, demand, right, lien, indemnity, guaranty, suit, obligation, liability, damage, judgment, account, defense, offset, power, privilege, license and franchise of any kind or character whatsoever, known, unknown, contingent or non-contingent, matured or unmatured, suspected or unsuspected, liquidated or unliquidated, disputed or undisputed, secured or unsecured, assertable directly or derivatively, whether arising before, on, or after the Petition Date, in contract or in tort, in law or in equity or pursuant to any other theory of law; provided that, for the avoidance of doubt, Causes of Action shall not include the Purchased Actions. Cause of Action also includes: (i) any right of setoff, counterclaim or recoupment and any claim for breach of contract or for breach of duties imposed by law or in equity; (ii) the right to object to Claims or Interests; and (iii) any claim or defense including fraud, mistake, duress and usury and any other defenses set forth in section 558 of the Bankruptcy Code.
1.26. CCAA means Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36,
as amended.
1.27. Chapter 11 Cases means the jointly administered cases of the Debtors under chapter 11 of the Bankruptcy Code styled In re Brooks Brothers, Inc., et al., Case No. 20-11785 (CSS).
1.28. Claim has the meaning set forth in section 101(5) of the Bankruptcy Code. 1.29. Claims Objection Bar Date means the first Business Day that is 180 days after the Effective Date or such later date as may be permitted pursuant to an order of the Bankruptcy Court.
1.30. Class means any group of Claims or Interests classified pursuant to Section 3.1 of the Plan.
1.31. Confirmation means the entry on the docket of the Chapter 11 Cases of the Confirmation Order.
1.32. Confirmation Date means the date on which the Clerk of the Bankruptcy Court enters the Confirmation Order.
1.33. Confirmation Hearing means the hearing held by the Bankruptcy Court
regarding Confirmation of the Plan, as such hearing may be adjourned or continued from time to time.
1.34. Confirmation Recognition Order means the order granted by the Canadian
Court recognizing the Confirmation Order in the Recognition Proceedings.
1.35. Confirmation Order means an order of the Bankruptcy Court in form and
substance acceptable to the Debtors and reasonably acceptable to the Creditors’ Committee confirming the Plan.
1.37. Creditors’ Committee means the statutory committee of unsecured creditors appointed by the U.S. Trustee in the Chapter 11 Cases pursuant to section 1102 of the Bankruptcy Code, as the same may be constituted from time to time.
1.38. Creditors’ Committee Counsel means Akin Gump Strauss Hauer & Feld LLP
and Troutman Pepper Hamilton Sanders LLP in their respective capacities as counsel to the Creditors’ Committee.
1.39. Cure Obligation means all (a) amounts required to cure any monetary defaults, and (b) other obligations required to cure any non-monetary defaults, in each case under any Executory Contract or Unexpired Lease that is to be assumed by the Debtors pursuant to the Plan and sections 365 and 1123 of the Bankruptcy Code.
1.40. D&O Policy means any insurance policy for, among others, directors, members, trustees, and officers liability (or any equivalents) maintained by the Debtors’ Estates, and all agreements, documents or instruments relating thereto, including any runoff policies or tail coverage.
1.41. Debtor Affiliates means the Debtors other than BB Parent.
1.42. Debtors means BB Parent; Brooks Brothers Far East Limited; BBD
Holding 1, LLC; BBD Holding 2, LLC; BBDI, LLC; BBGI International, LLC (f/k/a Brooks Brothers International, LLC) (N/A); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC); Deconic Group LLC; Golden Fleece Manufacturing Group, LLC; RBA Wholesale, LLC; Retail Brand Alliance Gift Card Services, LLC; Retail Brand Alliance of Puerto Rico, Inc.; 696 White Plains Road, LLC; and BB Canada.
1.43. DIP Agent means ABG-BB, LLC, solely in its capacity as agent under the DIP Credit Agreement.
1.44. DIP Credit Agreement means that certain Debtor-in-Possession Term Loan
Agreement dated as of July 10, 2020 among BB Parent, as the lead borrower, and the lenders party thereto.
1.45. DIP Lender shall have the meaning ascribed to the term “Lender” in the DIP Credit Agreement.
1.46. Directors’ Charge means the charge granted by the Canadian Court in the
1.47. Disallowed means a Claim against a Debtor, or any portion thereof, (i) that has been disallowed by a Final Order of the Bankruptcy Court, a settlement, or the Plan, (ii) that is listed in the Schedules at zero or as contingent, disputed, or unliquidated and as to which a Bar Date has been established but no Proof of Claim has been timely filed or deemed timely filed with the Bankruptcy Court pursuant to either the Bankruptcy Code or any Final Order of the Bankruptcy Court or applicable law, or (iii) that is not listed in the Debtors’ Schedules and as to which a Bar Date has been established but no Proof of Claim has been timely filed or deemed timely filed with the Bankruptcy Court pursuant to either the Bankruptcy Code or any Final Order of the Bankruptcy Court or under applicable law.
1.48. Disclosure Statement means the Disclosure Statement for the Plan, which is prepared and distributed in accordance with sections 1125, 1126(b) and/or 1145 of the Bankruptcy Code, Bankruptcy Rule 3018 and/or other applicable law.
1.49. Disputed means, with respect to a Claim, a Claim against a Debtor (i) neither Allowed nor Disallowed, or (ii) held by a Person or Entity against whom or which any of the Debtors, the Liquidation Trust or the Liquidation Trustee has commenced a proceeding, including an objection to such Claim or an Avoidance Action.
1.50. Disputed Claims Reserve means Liquidation Trust Assets or Litigation Trust Assets allocable to Disputed Claims.
1.51. Distribution means payment or distribution of consideration to holders of
Allowed Claims, or Liquidation Trust Beneficiaries or Litigation Trust Beneficiaries pursuant to this Plan.
1.52. Distribution Date means a date or dates, including the Initial Distribution Date, as determined by the Debtors or the Liquidation Trustee, as applicable, in accordance with the terms of the Plan, on which the Debtors or the Liquidation Trustee makes a Distribution to holders of the Liquidation Trust Beneficial Interests or the Litigation Trust Interests, as applicable, on account of Allowed Claims.
1.53. Distribution Record Date means the Effective Date of the Plan.
1.54. DV Claims means any of the Debtors’ or the Estates’ Causes of Action against the DV Entities, including, but not limited to, Avoidance Actions or recharacterization, contractual subordination or equitable subordination of any Claims of any of the DV Entities, and all rights to object to Claims of any DV Entities.
1.55. DV Entities means (i) Claudio Del Vecchio; (ii) Matteo Del Vecchio; (iii) any present or former member of Claudio Del Vecchio or Matteo Del Vecchio’s immediate families; (iv) the CDV Trust; (v) the CDV 2010 Annuity Trust; (vi) the Del Vecchio Family Trust; (vii) Delfin S.Á R.L.2; (viii) DV Family LLC; (ix) the CDV 2015 Annuity Trust; (x) the CDV 2015 Annuity Trust U/A/D 9-16-2015; (xi) the CDV 2015 Annuity Trust U/A/D 2-9-2006; (xii) 346 Madison Avenue, LLC; (xiii) 11 East 44th Street, LLC; (xiv) CDV Holdings LLC; (xv) 2015 Omega Trust U/A/D 9-16-2015; (xvi) DV Family, LLC; and (xvii) with respect to each of the foregoing entities in clauses (i) through (xvi), such entities’ respective trustees, beneficiaries, heirs, executors, estates, devisees, members, managers, transferees and assigns that are not Debtors.
1.56. Effective Date means the date on which all conditions to the effectiveness of the Plan set forth in Section 9 hereof have been satisfied or waived in accordance with the terms of the Plan.
1.57. Entity has the meaning set forth in section 101(15) of the Bankruptcy Code. 1.58. Estate or Estates means individually or collectively, the estate or estates of the Debtors created under section 541 of the Bankruptcy Code.
1.59. Exculpated Parties means collectively: (i) the Debtors; (ii) the Estates; (iii) the Creditors’ Committee and the members of the Creditors’ Committee; and (iv) with respect to each of the foregoing entities in clauses (i) through (iv), such entities’ predecessors, successors and assigns, subsidiaries, affiliates, current and former officers, directors, principals, shareholders, members, partners, employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, and other professionals, and such persons’ respective heirs, executors, Estates, servants and nominees, in each case in their capacity as such; provided, however, that Exculpated Parties shall not include any Former D&Os.
1.60. Executory Contract means a contract or lease to which one or more of the
Debtors is a party that is subject to assumption or rejection under sections 365 or 1123 of the Bankruptcy Code.
1.61. Fee Claim means a Claim for professional services rendered or costs incurred on or after the Petition Date through the Effective Date by professional persons retained by the Debtors, the Creditors’ Committee, or any other official committee appointed in these Chapter 11 Cases pursuant to sections 327, 328, 329, 330, 331, 503(b) or 1103 of the Bankruptcy Code;
provided that the foregoing excludes Claims for compensation for services rendered by
professionals retained under that certain Order (I) Authorizing Debtors to Employ Professionals
Utilized in the Ordinary Course of Business and (II) Granting Related Relief, entered by the
Bankruptcy Court in the Chapter 11 Cases on August 7, 2020 [D.I. 333].
1.62. Final DIP Order means that certain Final Order (I) Authorizing the Debtors
to Obtain Postpetition Financing, (II) Authorizing the Debtors to Use Cash Collateral, (III) Granting Liens and Providing Superpriority Administrative Expense Status, (IV) Granting Adequate Protection to the Prepetition Secured Parties, (V) Modifying Automatic Stay, and (VI)
