Case BLS Doc 987 Filed 01/15/19 Page 1 of 8 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE.

Transcription

1 Case BLS Doc 987 Filed 01/15/19 Page 1 of 8 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: BROOKSTONE HOLDINGS CORP., et al., 1 Debtors. Chapter 11 Case No (BLS) (Jointly Administered) Docket Ref. Nos. 758 & 846 CERTIFICATION OF COUNSEL REGARDING SECOND ORDER, PURSUANT TO SECTIONS 105(a) AND 365(a) OF THE BANKRUPTCY CODE, AUTHORIZING THE DEBTORS TO REJECT CERTAIN EXECUTORY CONTRACTS NUNC PRO TUNC TO NOVEMBER 16, 2018 The undersigned hereby certifies as follows: 1. On November 13, 2018, Brookstone Holdings Corp. and its affiliated debtors and debtors in possession in the above-captioned chapter 11 cases (collectively, the Debtors ) filed the Debtors Fourth (4th) Omnibus Motion for Entry of an Order, Pursuant to Sections 105(a) and 365(a) of the Bankruptcy Code, Authorizing the Debtors to Reject Certain Executory Contracts Nunc Pro Tunc to November 16, 2018 [Docket No. 758] (the Motion ) with the United States Bankruptcy Court for the District of Delaware (the Court ). The deadline to file objections or respond to the Motion was established as November 27, 2018 at 4:00 p.m. (ET), and subsequently extended solely for AQ Textiles, LLC ( AQ Textiles and together with the Debtors, the Parties ) to November 29, 2018 at 4:00 p.m. (ET). 2. On November 29, 2018, AQ Textiles filed the Objection of Licensee AQ Textiles, LLC to Debtors Fourth (4th) Omnibus Motion for Entry of an Order, Pursuant to 01: The Debtors, along with the last four digits of each Debtor s tax identification number, are: Brookstone Holdings Corp. (4638), Brookstone, Inc. (2895), Brookstone Company, Inc. (3478), Brookstone Retail Puerto Rico, Inc. (5552), Brookstone International Holdings, Inc. (8382), Brookstone Purchasing, Inc. (2514), Brookstone Stores, Inc. (2513), Big Blue Audio LLC (N/A), Brookstone Holdings, Inc. (2515), and Brookstone Properties, Inc. (2517). The Debtors corporate headquarters and the mailing address for each Debtor is One Innovation Way, Merrimack, NH

2 Case BLS Doc 987 Filed 01/15/19 Page 2 of 8 Sections 105(a) and 365(a) of the Bankruptcy Code, Authorizing the Debtors to Reject Certain Executory Contracts Nunc Pro Tunc to November 16, 2018 and Election Under Section 365(n) [Docket No. 832] (the Objection ), which responded to the Debtors proposed retroactive rejection of that certain license agreement between the Debtors and AQ Textiles (the AQ Textiles Agreement ) and raised certain other arguments in connection therewith. 3. In an effort to consensually resolve the Objection, the Debtors agreed to temporarily remove the AQ Textiles Agreement from Schedule 1 annexed to the proposed order attached to the Motion and make certain other conforming revisions. Subsequently, on December 3, 2018, the Court entered that certain Order, Pursuant to Sections 105(a) and 365(a) of the Bankruptcy Code, Authorizing the Debtors to Reject Certain Executory Contracts Nunc Pro Tunc to November 16, 2018 and Election Under Section 365(n) [Docket No. 846] (the Initial Order ) approving the Motion. Pursuant to paragraph 6 of the Initial Order, the Motion with respect to the AQ Textiles Agreement was adjourned to a date and time to be determined. 4. Subsequent to the entry of the Initial Order, the Parties engaged in good faith negotiations regarding the Motion and, in furtherance thereof, the Parties have reached the agreement memorialized in the proposed form of order (the Second Order ) attached hereto as Exhibit A. 01:

3 Case BLS Doc 987 Filed 01/15/19 Page 3 of 8 WHEREFORE, as the Parties have agreed to the terms of the Second Order, the Debtors respectfully request that the Court enter the Second Order without further notice or hearing at the Court s earliest convenience. Dated: Wilmington, Delaware January 15, 2019 /s/ Andrew L. Magaziner YOUNG CONAWAY STARGATT & TAYLOR, LLP Michael R. Nestor (No. 3526) Sean M. Beach (No. 4070) Andrew L. Magaziner (No. 5426) Rodney Square 1000 North King Street Wilmington, Delaware Tel: (302) Fax: (302) mnestor@ycst.com sbeach@ycst.com amagaziner@ycst.com -and- GIBSON, DUNN & CRUTCHER LLP Matthew J. Williams David M. Feldman Matthew K. Kelsey Keith R. Martorana Jason Zachary Goldstein 200 Park Avenue New York, New York Tel: (212) Fax: (212) mjwilliams@gibsondunn.com dfeldman@gibsondunn.com mkelsey@gibsondunn.com kmartorana@gibsondunn.com jgoldstein@gibsondunn.com Counsel to the Debtors and Debtors in Possession 01:

4 Case BLS Doc 987 Filed 01/15/19 Page 4 of 8 EXHIBIT A Second Order 01:

5 Case BLS Doc 987 Filed 01/15/19 Page 5 of 8 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: BROOKSTONE HOLDINGS CORP., et al., 1 Debtors. Chapter 11 Case No (BLS) Jointly Administered Ref. Docket Nos. 758, 846 & SECOND ORDER, PURSUANT TO SECTIONS 105(a) AND 365(a) OF THE BANKRUPTCY CODE, AUTHORIZING THE DEBTORS TO REJECT CERTAIN EXECUTORY CONTRACTS NUNC PRO TUNC TO NOVEMBER 16, 2018 Upon consideration of the motion (the Motion ) 2 of the Debtors for the entry of an order, pursuant to sections 105(a) and 365(a) of the Bankruptcy Code, authorizing the Debtors to reject certain Rejected Contracts effective as of November 16, 2018 (the Rejection Effective Date ); and this Court having previously entered that certain Order, Pursuant to Sections 105(a) and 365(a) of the Bankruptcy Code, Authorizing the Debtors to Reject Certain Executory Contracts Nunc Pro Tunc to November 16, 2018 [D.I. 846] (the Initial Rejection Order ); and it appearing that this Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334 and the Amended Standing Order of Reference dated February 29, 2012, from the United States District Court for the District of Delaware; and it appearing that this is a core proceeding pursuant to 28 U.S.C. 157(b)(2); and it appearing that venue of this proceeding and the Motion is proper pursuant to 28 U.S.C and 1409; and it appearing that the relief requested in 01: The Debtors, along with the last four digits of each Debtor s tax identification number, are: Brookstone Holdings Corp. (4638), Brookstone, Inc. (2895), Brookstone Company, Inc. (3478), Brookstone Retail Puerto Rico, Inc. (5552), Brookstone International Holdings, Inc. (8382), Brookstone Purchasing, Inc. (2514), Brookstone Stores, Inc. (2513), Big Blue Audio LLC (N/A), Brookstone Holdings, Inc. (2515), and Brookstone Properties, Inc. (2517). The Debtors corporate headquarters and the mailing address for each Debtor is One Innovation Way, Merrimack, NH Capitalized terms used herein, but not otherwise defined, have the meanings given to them in the Motion.

6 Case BLS Doc 987 Filed 01/15/19 Page 6 of 8 the Motion and provided for herein is an appropriate exercise of the Debtors business judgment; and it appearing that notice of the Motion was adequate and proper under the circumstances and that no further or other notice need be given; and after due deliberation and sufficient cause appearing therefor, IT IS HEREBY ORDERED THAT: 1. The Motion is GRANTED as set forth herein. 2. Pursuant to sections 105(a) and 365(a) of the Bankruptcy Code and Bankruptcy Rule 6006, the Rejected Contract identified on Schedule 1 hereto is hereby rejected by the Debtors, with such rejection being effective as of the Rejection Effective Date, November 16, The Debtors shall have no liability to AQ Textiles LLC for any amounts or claims related to the Rejected Contract for the period prior to, or following, the Rejection Effective Date, including, without limitation, for any claims for damages arising from the Debtors rejection of the Rejected Contract. 4. Upon the payment of $64, on or prior to the date that is five (5) business days following entry of this Order, AQ Textiles LLC shall have no liability to the Debtors for any amounts or claims related to the Rejected Contract for the period prior to, or following, the Rejection Effective Date. 5. Nothing in this Order shall be deemed to amend, modify or otherwise affect the Initial Rejection Order, which shall remain in full force and effect unless otherwise ordered by the Court. 6. This Order is immediately effective and enforceable, notwithstanding the possible applicability of Bankruptcy Rule 6004(h) or otherwise. 01:

7 Case BLS Doc 987 Filed 01/15/19 Page 7 of 8 7. The requirements of Bankruptcy Rule 6006 are satisfied. 8. This Court shall retain jurisdiction to hear and determine all matters arising from or related to the implementation of this Order. Dated: January, 2019 Wilmington, Delaware BRENDAN LINEHAN SHANNON UNITED STATES BANKRUPTCY JUDGE 01:

8 Case BLS Doc 987 Filed 01/15/19 Page 8 of 8 SCHEDULE 1 REJECTED CONTRACT Name of Contract Counterparty Description of Contract Address of Contract Counterparty Rejection Effective Date AQ Textiles LLC License Agreement with Brookstone Company, Inc. 230 Fifth Avenue New York, NY /16/18 01: