TOGUT, SEGAL & SEGAL LLP One Penn Plaza, Suite 3335 New York, New York 10119 (212) 594-5000
Albert Togut Patrick Marecki Kyle J. Ortiz
Co-Counsel to the
Debtors and Debtors in Possession
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK
In re:
ARO LIQUIDATION, INC., et al.,
Debtors1.
Filed 07/12/17 Entered 07/12/17 15:02:52 Main Document Pg 1 of 3
PRESENTMENT DATE: OBJECTION DEADLINE:
7/19/2017 at 12:00 p.m. E.T. 7/19/2017 at 11:00 a.m. E.T.
:
: Chapter 11
:
: Case No. 16-11275 (SHL) :
: (Jointly Administered)
:
:
NOTICE OF PRESENTMENT OF SO ORDERED STIPULATION AMONG THE DEBTORS, AERO INVESTORS LLC, AND MGF SOURCING HOLDINGS, LIMITED (F/K/A TSAM HOLDINGS, LIMITED)
PLEASE TAKE NOTICE that the undersigned co-counsel to ARO Liquidation, Inc. and its subsidiaries, as debtors and debtors in possession in the above- captioned chapter 11 cases (collectively, the “Debtors”) will present for signature to the Honorable Sean H. Lane, United States Bankruptcy Judge, in his Chambers at the United States Bankruptcy Court, One Bowling Green, New York, New York, on July 19, 2017 at 12:00 p.m. eastern standard time (the “Presentment Date”), the attached so ordered stipulation of the Loan Agreement between the Claimant and the Debtors2 (the “Proposed Stipulated Order”).
1 The Debtors in these chapter 11 cases and the last four digits of each Debtor’s federal tax identification number are as follows: ARO Liquidation, Inc. (3880); ARO Liquidation West, Inc. (7013); ARO Liquidation Surf Co., LLC (0461); ARO Liquidation GC Management LLC (4257); ARO Liquidation Procurement Company, Inc. (8518); ARO Liquidation Licensing, Inc. (8124); ARO Liquidation (Kids), Inc. (5900); ARO Liquidation GJ LLC (4923); ARO Liquidation Holdings, Inc. (7729); and ARO Liquidation Puerto Rico, Inc. (6477). The Debtors’ corporate headquarters is located at 125 Chubb Avenue, Lyndhurst, NJ 07071.
2 Capitalized terms shall have the meanings ascribed to them in the Stipulation.
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PLEASE TAKE FURTHER NOTICE that this notice of presentment replaces the notice of presentment filed on July 11, 2017 [Dkt. No. 1347].
PLEASE TAKE FURTHER NOTICE that responses and objections, if any, to the Proposed Order must be in writing, conform to the Federal Rules of Bankruptcy Procedure and the Local Rules of the Bankruptcy Court for the Southern District of New York, must set forth the name and address of the objecting party, the nature of the claim or interest of such party, the basis for the objection and the specific grounds thereof and include, where appropriate, proposed language to be inserted in the Proposed Stipulated Order to resolve any such objection.
PLEASE TAKE FURTHER NOTICE that responses or objections, if any, must also be filed with the Bankruptcy Court electronically in accordance with General Order M-399 (which can be found at www.nysb.uscourts.gov) by registered users of the Bankruptcy Court’s case filing system and by all other parties in interest, on a CD, preferably in Portable Document Format (PDF), WordPerfect, or any other Windows- based word processing format (with a hard copy delivered directly to the Chambers of the Honorable Sean H. Lane) and shall be served in accordance with General Order M- 399, to the extent applicable, and shall be served in accordance with General Order M- 399 upon: (i) attorneys for the Debtors, Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, NY 10153 (Attn: Ray C. Schrock, P.C., Jacqueline Marcus, Esq., and Garrett A. Fail, Esq.); (ii) co-counsel for the Debtors, Togut, Segal & Segal LLP, One Penn Plaza, Suite 3335, New York, NY 10119 (Attn.: Albert Togut, Esq. and Kyle J. Ortiz, Esq.);
(iii) the Office of the United States Trustee for Region 2, 201 Varick Street, Suite 1006, New York, NY 10014 (Attn: Brian Masumoto, Esq.); (iv) attorneys for the Claimant, Kirkland & Ellis LLP, 300 North LaSalle, Chicago, IL 60654 (Attn.: James A. Stempel, Esq., pro hac vice, and Robert A. Britton, Esq.); (v) attorneys for Bank of America, N.A.,
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as agent under the Third Amended and Restated Loan and Security Agreement, Riemer & Braunstein LLP, Three Center Plaza, Boston, MA 02108 (Attn: David S. Berman, Esq.); and (vi) the attorneys for the DIP Agent, Proskauer Rose LLP, Eleven Times Square, New York, NY 10036 (Attn: Peter Antoszyk, Esq.), so as to be so filed and received no later than July 19, 2017 at 11:00 a.m. eastern standard time (the “Objection Deadline”). A further notice will be filed when the Objection Deadline is set.
PLEASE TAKE FURTHER NOTICE that if no Objections are timely filed and served with respect to the Application, the Debtors may, on or after the Objection Deadline, submit to the Bankruptcy Court orders substantially in the form of the Proposed Stipulated Order annexed to the Application, which order may be entered without further notice or opportunity to be heard.
DATED:
New York, New York July 12, 2017
ALBERT TOGUT
Not Individually But Solely in His Capacity as Chapter 11 Trustee By His Attorneys,
TOGUT, SEGAL & SEGAL LLP By:
/s/ Albert Togut
ALBERT TOGUT
A Member of the Firm
One Penn Plaza, Suite 3335 New York, New York 10119 (212) 594-5000
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16-11275-shl Doc 1350-1 Filed 07/12/17 Stipulated Order
TOGUT, SEGAL & SEGAL LLP One Penn Plaza
Suite 3335
New York, New York 10119 (212) 594-5000
Albert Togut Patrick Marecki Kyle J. Ortiz
Co-Counsel to the
Debtors and Debtors in Possession
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK
Entered 07/12/17 15:02:52 Pg 1 of 5
Proposed
In re:
ARO LIQUIDATION, INC., et al.,
Debtors.1
:
: Chapter 11 :
: Case No. 16-11275 (SHL) :
: (Jointly Administered) :
:
SO ORDERED STIPULATION AMONG THE DEBTORS, AERO INVESTORS LLC, AND MGF SOURCING HOLDINGS, LIMITED (F/K/A TSAM HOLDINGS, LIMITED)
This stipulation and order (the “Stipulation and Order”) is entered into among, ARO Liquidation, Inc. and its subsidiaries, as debtors and debtors in possession in the above-captioned chapter 11 cases (collectively, the “Debtors”), Aero Investors LLC, and MGF Sourcing Holdings, Limited (f/k/a TSAM Holdings, Limited) (the “Claimant,” and together with the Debtors, the “Parties”):
1
The Debtors in these chapter 11 cases and the last four digits of each Debtor’s federal tax
identification number, as applicable, are as follows: ARO Liquidation, Inc. (3880); ARO Liquidation West, Inc. (7013); ARO Liquidation Surf Co., LLC (0461); ARO Liquidation GC Management LLC (4257); ARO Liquidation Procurement Company, Inc. (8518); ARO Liquidation Licensing, Inc. (8124); ARO Liquidation (Kids), Inc. (5900); ARO Liquidation GJ LLC (4923); ARO Liquidation Holdings, Inc. (7729); and ARO Liquidation Puerto Rico, Inc. (6477). T he Debtors’ corporate headquarters is located at 125 Chubb Avenue, Lyndhurst, NJ 07071.
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WHEREAS, on May 4, 2016, each of the Debtors commenced with this Court a voluntary case under chapter 11 of the Bankruptcy Code; and
WHEREAS, the Debtors have continued to operate their businesses and manage their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code; and
WHEREAS, on May 23, 2014, the Claimant entered into a loan and security agreement with Debtor ARO Liquidation, Inc. (the “Loan Agreement”) and ARO Liquidation, Inc. pledged certain assets to secure the loans provided under the Loan Agreement; and
WHEREAS, ARO Liquidation, Inc.’s Debtor affiliates: ARO Liquidation GJ LLC, ARO Liquidation West, Inc., ARO Liquidation (Kids), Inc., ARO Liquidation Surf Co., LLC, ARO Liquidation Licensing, Inc., ARO Liquidation GC Management LLC, and ARO Liquidation Procurement Co., Inc. (the “Guarantors”) guaranteed all obligations under the Loan Agreement; and
WHEREAS, under the Loan Agreement and the related loan documents, the Guarantors are jointly and severally liable with ARO Liquidation, Inc. for all obligations under the Loan Agreement and the related loan documents; and
WHEREAS, on September 13, 2016, the Court entered an Order (I) Approving the Purchase Agreement Among Sellers and Buyer Consortium, (II) Authorizing the Sale of Certain of the Debtors’ Assets Free and Clear of Liens, Claims, Interests, and Encumbrances,
(III) Authorizing the Assumption and Assignment of Certain Executory Contracts and Leases in Connection Therewith, and (IV) Granting Related Relief [Docket No. 809] approving the sale of substantially all of the Debtors’ assets; and
WHEREAS, on November 17, 2016, the Court entered an order [Docket No. 972]
(the “Administrative Claims Bar Date Order”) establishing, among other things, 2
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December 13, 2016 at 5:00 p.m. (Eastern Time) as the deadline for filing proofs of claim for administrative expenses that arose on or after the Petition Date under sections 503 and 507 of the Bankruptcy Code; and
WHEREAS, on December 13, 2016, the Claimant filed administrative expense Claim No. 2503 (the “Administrative Claim”) against Debtor ARO Liquidation, Inc. for $42,750,000 (the “Administrative Claim Amount”) for compensation for the diminution in value of its interests in the collateral that secures the obligations of the Debtors under the Loan Agreement; and
WHEREAS, on December 13, 2016, the Claimant also filed the following seven (7) claims against the Guarantors for $42,750,000 each (the “Guarantor Claims”):
Debtor Asserted Against
Claim No.
ARO Liquidation GJ LLC
2514
ARO Liquidation West, Inc.
2508
ARO Liquidation (Kids), Inc.
2492
ARO Liquidation Surf Co., LLC
2494
ARO Liquidation Licensing, Inc.
2499
ARO Liquidation GC Management LLC
2507
ARO Liquidation Procurement Company, Inc.
2513
WHEREAS, on April 14, 2017, the Court entered the Order (I) Authorizing the Debtors to File Omnibus Administrative Claims Objections on Grounds Other than as Set Forth in Bankruptcy Rule 3007(d) and (II) Authorizing Procedures for Settling Administrative Claims [Docket No. 1227] (the “Administrative Claims Procedure Order”) establishing, among other things, procedures for settling certain administrative claims; and
WHEREAS, on June 9, 2017, the Debtors filed the Debtors’ Fourth Omnibus Objection to Administrative Claims (Duplicate Claims) [Docket No. 1297] objecting to the
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Guarantor Claims and proposing that the Administrative Claim should be designated as the primary claim (the “Objection”); and
WHEREAS, the Debtors and the Claimant do not dispute that the Debtors are jointly and severally liable for all obligations under the Loan Agreement and related loan documents, but agree that the Debtors are only liable for payment in full of the Administrative Claim Amount one time; and
WHEREAS, in order to have the Debtors’ official administrative claims registry maintained in these Chapter 11 Cases (the “Claims Registry”) reflect the proper amount that the Debtors may ultimately be liable for, the Parties have agreed to have the Administrative Claim Amount reflected on the Claims Registry in the full amount against Debtor ARO Liquidation, Inc. and for the claim amount listed on the Claims Registry for all other Debtors in the amount of $0; and
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, the Parties hereto, subject to the Bankruptcy Court’s approval agree that:
1. Each of the Debtors is jointly and severally liable for the full amount of the Administrative Claim. If the Administrative Claim is not satisfied in full by Debtor ARO Liquidation, Inc., Claimant shall retain the right to collect the full allowed amount of the Administrative Claim from any and each of the Debtors, provided, for the avoidance of doubt, that the full allowed amount of the Administrative Claim shall only
be paid once.
2. Upon the date this Stipulation is approved by the Court pursuant to a final, non-appealable order, Prime Clerk LLC, the Debtors’ claims and noticing agent appointed in these Chapter 11 Cases, shall be authorized to update the Claims Registry to list each of the Guarantor Claims in the amount of $0.
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3. The Parties reserve all rights with regard to the validity of the Administrative Claim Amount.
4. Each person who executes this Stipulation represents that he or she is duly authorized to execute this Stipulation on behalf of the Parties hereto.
5. The Parties hereby irrevocably and unconditionally agree that the Court
shall retain exclusive jurisdiction to interpret, implement, and enforce the provisions of
this Settlement Agreement.
Dated: July 11, 2017
New York, New York
AERO INVESTORS LLC AND MGF SOURCING HOLDINGS, LIMITED (F/K/A TSAM HOLDINGS, LIMITED)
/s/ James A. Stempel
James A. Stempel (admitted pro hac vice) Robert A. Britton
KIRKLAND & ELLIS LLP
300 North LaSalle
Chicago, Illinois 60654
(312) 862-2000
ARO Liquidation, Inc., et al.,
/s/ Albert Togut
TOGUT, SEGAL & SEGAL LLP Albert Togut
Patrick Marecki
Kyle J. Ortiz
One Penn Plaza, Suite 3335 New York, New York 10119 (212) 594-5000
5
