Case Doc 271 Filed 12/19/18 Page 1 of 5 IN THE UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF NORTH CAROLINA DURHAM DIVISION

Transcription

1 SO ORDERED. Case Doc 271 Filed 12/19/18 Page 1 of 5 SIGNED this 19th day of December, IN THE UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF NORTH CAROLINA DURHAM DIVISION In re: Chapter 11 Advanced Sports Enterprises, Inc., et al., 1 Case No (Jointly Administered Debtors. ORDER AUTHORIZING THE RETENTION OF A&G REALTY PARTNERS, LLC AS REAL ESTATE CONSULTANT FOR THE DEBTORS AND DEBTORS IN POSSESSION, NUNC PRO TUNC TO THE PETITION DATE Upon the Motion (the Motion 2 of Advanced Sports Enterprises, Inc., Advanced Sports, Inc., Performance Direct, Inc., Bitech, Inc. and Nashbar Direct, Inc. (collectively, the Debtors for entry of an order (this Order, pursuant to section pursuant to sections 327(a and 328(a of the Bankruptcy Code, Bankruptcy Rules 2014(a and 2016, and Local Rule , (i authorizing the Debtors to retain and employ A&G Realty as their real estate consultant nunc pro tunc to the 1 The Debtors in this case, along with each Debtor s case number, are: (i Advanced Sports Enterprises, Inc., Case No ; (ii Advanced Sports, Inc., Case No ; (iii Performance Direct, Inc., Case No ; (iv Bitech, Inc., Case No ; and (v Nashbar Direct, Inc., Case No Each Debtor is a North Carolina Corporation. 2 Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Motion.

2 Case Doc 271 Filed 12/19/18 Page 2 of 5 Petition Date in accordance with the terms and conditions of the Services Agreement, 3 (ii approving the terms of A&G Realty s retention and employment, including the fee and expense structure and the indemnification, reimbursement, and related provisions set forth in the Services Agreement, (iii approving a waiver of certain reporting requirements, and (iv granting certain related relief, all as more fully set forth in the Motion; and upon consideration of the Graub Declaration; and the Court having jurisdiction to consider the Motion pursuant to 28 U.S.C. 157 and 1334; and consideration of the Motion and the requested relief being a core proceeding pursuant to 28 U.S.C. 157(b(2; and the Court being able to issue a final order consistent with Article III of the United States Constitution; and venue being proper before this Court pursuant to 28 U.S.C and 1409; and appropriate notice of and the opportunity for a hearing on the Motion having been given; and the relief requested in the Motion being in the best interests of the Debtors estate, its creditors and other parties in interest; and the Court having determined that the legal and factual bases set forth in the Motion establish just cause for the relief granted herein; 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 327(a and 328(a of the Bankruptcy Code, Bankruptcy Rules 2014(a and 2016 and Local Rule , the Debtors are authorized to retain and employ A&G Realty as their real estate consultant nunc pro tunc to the Petition Date, on the terms and conditions set forth in the Motion and the Services Agreement and in accordance with the Fee Structure, except as provided by this Order. 3 Any references to, or summaries of, the Services Agreement in the Motion are qualified by the express terms of the Services Agreement, which shall govern if there is any conflict between the Service Agreement and such summaries referenced therein. Additionally, any capitalized terms used in the Motion and not otherwise defined therein shall have the meanings given to them in the Services Agreement.

3 Case Doc 271 Filed 12/19/18 Page 3 of 5 3. The terms of the Services Agreement, including without limitation, the indemnification provisions and the Fee Structure, are approved, as modified herein. 4. The terms of the Services Agreement are reasonable terms and conditions of employment and are approved, as hereinafter modified. The indemnification provisions included in the Services Agreement are hereby deleted and replaced with the following: ASE shall, upon the receipt of written notice, indemnify, defend, and hold harmless A&G and its present and former partners, principals, directors, employees, agents, and contractors from and against any liability, damages, fees, expenses, losses, demands, and costs (including defense costs associated with any claim arising from or relating to: (i Debtor s misrepresentations; (ii false or incomplete information provided to A&G by ASE or its agents; or (iii any third party claims related to the Services provided under this Agreement. ASE agrees to reimburse A&G for all reasonable expenses, including attorneys fees and expenses, as they are incurred in connection with the investigation of, preparation for, or defense of, any pending or threatened claim, action, or proceeding arising therefrom, whether or not A&G is a party. In no event shall ASE or its bankruptcy estate have any obligation to indemnify, defend or hold harmless A&G for any claim and/or from any liability, damages, fees, expenses, losses, demands, and costs (including defense costs arising A&G s gross negligence, willful misconduct, or fraud. If before the entry of an order closing ASE s chapter 11 case, A&G believes it is entitled to the payment of any amounts by ASE on account of this indemnification provision, including without limitation the advance of defense costs, A&G must file an application therefor in the Bankruptcy Court, and ASE may not pay any such amounts to A&G before the entry of a final order approving such payment. This paragraph is intended only to specify the period during which the Court shall have jurisdiction over any request by A&G for indemnification or contribution and is not a provision limiting the duration of ASE s obligation to indemnify. ASE shall have no obligation to indemnify A&G or provide contribution or reimbursement to A&G for a contractual dispute to the extent such indemnification, contribution, or reimbursement would be inconsistent with In re United Artists Theatre Co., 315 F.3d 217, 234 (3d Cir A&G Realty will file a fee application for final allowance of compensation and reimbursement of fees and expenses in accordance with section 328(a of the Bankruptcy Code, and such Bankruptcy Rules as may then be applicable, and any procedures or orders of this Court. A&G Realty shall be compensated based on the fees set forth in the Services Agreement and the Motion, and A&G Realty s compensation shall be subject to the standard of review provided for in section 328(a of the Bankruptcy Code and shall not be subject to the standard of review set

4 Case Doc 271 Filed 12/19/18 Page 4 of 5 forth in section 330 of the Bankruptcy Code; provided, however, that the Bankruptcy Administrator and the Court retain all rights to object to A&G Realty s interim and final fee application (including expense reimbursement on all grounds, including, but not limited to, the reasonableness standard provided for in section 330 of the Bankruptcy Code. Accordingly, nothing in this order or the record shall constitute a finding of fact or conclusion of law binding the Bankruptcy Administrator, on appeal or otherwise, with respect to the reasonableness of A&G Realty s fees or compensation. 6. A&G Realty will be compensated for 100% of the amount due upon submission of an acceptable invoice to the Debtors for all Services, other than the Additional Services, and expenses incurred in connection with the Services. Other than any Additional Services, the Debtors shall not be required to submit interim fee applications for the Services or maintain records of detailed time entries in connection with professional services rendered under the Services Agreement. Upon completion of their work for the Debtors, A&G Realty will file a final fee application for review by the Court and parties in interest pursuant to section 328(a of the Bankruptcy Code for all Services. 7. For any Additional Services provided to the Debtors by A&G Realty, A&G Realty shall submit monthly, interim, and final fee applications on an hourly basis only and the time detail provided with such fee applications may be provided in a summary fashion. Specifically, A&G Realty will submit time records setting forth the hours spent on each activity and a description of the Additional Services provided, but will not break out their time into tenth-of-anhour increments. 8. A&G Realty shall disclose any and all facts that may have a bearing on whether A&G Realty, its affiliates, and/or any individuals working on the engagement hold or represent

5 Case Doc 271 Filed 12/19/18 Page 5 of 5 any interest adverse to the Debtors, their creditors, or other parties in interest. The obligation to disclose identified in this paragraph is a continuing obligation. 9. With respect to controversies or claims arising out of or in any way related to the services in the Services Agreement, notwithstanding any arbitration, dispute resolution or exclusive jurisdiction provisions contained in the Services Agreement, any disputes arising under the Services Agreement shall be heard in this Court during the pendency of these cases. 10. To the extent that there may be any inconsistency between the terms of the Motion, the Graub Declaration, or the Services Agreement and this Order, the terms of this Order shall govern. 11. The Debtors are authorized and empowered to take all actions necessary to implement the relief granted in this Order. 12. The terms and conditions of this Order shall be immediately effective and enforceable upon its entry. 13. This Court shall retain jurisdiction with respect to all matters arising from or related to the implementation, interpretation, or enforcement of this Order. [end of document]