Case MFW Doc 416 Filed 03/29/18 Page 1 of 9 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

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1 Case MFW Doc 416 Filed 03/29/18 Page 1 of 9 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: THE BON-TON STORES, INC., et al., 1 Debtors. Chapter 11 Case No (MFW) (Jointly Administered) THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF THE BON-TON STORES, INC., et al., Adv. Pro. No.: 18- (MFW) Plaintiff v. WELLS FARGO BANK, NATIONAL ASSOCIATION, in its capacity as the original indenture trustee, and WILMINGTON SAVINGS FUND SOCIETY, FSB, in its capacity as the successor indenture trustee, Defendants. COMPLAINT (A) TO AVOID PREFERENCES, (B) TO AVOID LIENS, (C) FOR DECLARATORY JUDGMENT, AND (D) FOR RELATED RELIEF The Official Committee of Unsecured Creditors (the Committee or Plaintiff ) of The Bon-Ton Stores, Inc., et al. (the Debtors ) files this Complaint (A) to Avoid Preferences, (B) to Avoid Liens, (C) for Declaratory Judgment, and (D) for Related Relief (the Complaint ). In support of its Complaint, the Committee alleges as follows: 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, are: The Bon-Ton Stores, Inc. (5229); The Bon-Ton Department Stores, Inc. (9309); The Bon-Ton Giftco, LLC (2805); Carson Pirie Scott II, Inc. (2140); Bon-Ton Distribution, LLC (5855); McRil, LLC (5548); Bonstores Holdings One, LLC (8574); Bonstores Realty One, LLC (8931); Bonstores Holdings Two, LLC (8775); and Bonstores Realty Two, LLC (9075). The headquarters for the above-captioned Debtors is 2801 East Market Street, Bldg. E, York, Pennsylvania

2 Case MFW Doc 416 Filed 03/29/18 Page 2 of 9 NATURE OF ACTION 1. Wells Fargo Bank, National Association ( Wells ) was the trustee and collateral agent with respect to certain second lien notes (the Second Lien Notes ) that were issued by the Debtors prepetition and that were purportedly secured pursuant to certain UCC-1 financing statements, and a mortgage, that Plaintiff challenges in this action. Wilmington Savings Fund Society, FSB ( WSFS and together with Wells, the Defendants ) succeeded Wells as the trustee and collateral agent. 2. Wells learned of certain defects in its liens securing the Second Lien Notes that covered the majority of the Debtors assets and that were owned by Debtors The Bon-Ton Stores, Inc. ( BTSI ), The Bon-Ton Department Stores, Inc. ( BTDS ), and McRil, LLC ( McRil and together with BTSI and BTDS, the Lapsed Debtors ), as well as real property located in Rockford, Illinois (the Real Property ). In a belated attempt to cure the defects, but within ninety days of the commencement of these cases, certain new UCC-1 financing statements were filed, and a mortgage was recorded, for Defendants benefit when each of the Lapsed Debtors was insolvent. 3. Plaintiff brings this action on behalf of the Debtors estates to avoid and recover as preferential transfers the UCC-1 financing statements and mortgage that were filed and recorded in January 2018 with respect to the Lapsed Debtors and the Real Property. Plaintiff also seeks a declaratory judgment that the liens and mortgage that were perfected in January 2018 are voidable and unenforceable as against any of the Debtors assets. Finally, Plaintiffs seek an order disallowing Defendants claims pending final resolution of the claims in this adversary proceeding. 2

3 Case MFW Doc 416 Filed 03/29/18 Page 3 of 9 JURISDICTION AND VENUE 4. This is an adversary proceeding pursuant to Rule 7001 of the Federal Rules of Bankruptcy Procedure. 5. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334(b) and (e). 6. This adversary proceeding is a core proceeding within the meaning of 28 U.S.C. 157(b)(2)(A), (B), (C), (E), (F), (K), (M), and (O). 7. Venue is proper in this Court pursuant to 28 U.S.C and CASE BACKGROUND 8. On February 4, 2018 (the Petition Date ), the Debtors commenced these cases under chapter 11 of the Bankruptcy Code. Exhibit A. 9. The Debtors claim to be a leading hometown department store retailer focused on delivering better brands at favorable price points. As of the Petition Date, the Debtors asserted that they operated approximately 256 department stores across twenty-three (23) states in the Northeast, Midwest, and upper Great Plains. 10. The majority of the Debtors assets are owned by the Lapsed Debtors. PARTIES 11. The Committee is an official committee of unsecured creditors appointed in these cases by the United States Trustee for the District of Delaware on February 15, 2018, under section 1102 of the Bankruptcy Code. 12. Pursuant to paragraph 42(a) of the 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, (V) Modifying Automatic Stay, and (VI) Granting Related Relief, entered 3

4 Case MFW Doc 416 Filed 03/29/18 Page 4 of 9 on March 12, 2018 (Docket No. 352) (the Final DIP Order ), the Committee was granted standing to investigate and prosecute the claims set forth herein on behalf of the Debtors estates. 13. Defendant Wells Fargo Bank, National Association was the original indenture trustee and collateral agent (the Original Indenture Trustee ) under that certain Second Lien Indenture (as defined below). 14. Upon information and belief, Defendant Wilmington Savings Fund Society, FSB has succeeded Wells as the Indenture Trustee (the Successor Indenture Trustee and together with the Indenture Trustee, the Trustee ). FACTUAL BACKGROUND A. THE PREPETITION SECOND LIEN NOTES 15. On May 28, 2013, The Bon-Ton Department Stores, Inc., as issuer (the Issuer ), the Original Indenture Trustee, and certain Debtor guarantors (the Second Lien Note Guarantors ) 2 entered into that certain indenture (the Second Lien Indenture, and collectively with any other agreements and documents executed or delivered in connection therewith, each as may have been amended, restated, supplemented, waived or otherwise modified from time to time, the Prepetition Second Lien Documents ). Pursuant to the Prepetition Second Lien Documents, the Issuer incurred indebtedness to holders (collectively, the Second Lien Noteholders, and together with the Trustee, the Prepetition Second Lien Parties ) of 8% senior secured lien notes due 2021 (the Prepetition Second Lien Notes ). 16. Pursuant to the Prepetition Second Lien Documents, the Issuer issued $350 million in aggregate principal amount of Prepetition Second Lien Notes. The Issuer and the Second Lien Note Guarantors granted to the Original Indenture Trustee, for the benefit of itself 2 All of the Debtors, except the Issuer, constitute the Second Lien Note Guarantors. 4

5 Case MFW Doc 416 Filed 03/29/18 Page 5 of 9 and the Prepetition Second Lien Parties, a second priority security interest in and lien on (the Prepetition Second Priority Liens ) substantially all of their assets and property, including mortgages on owned and certain leased real property, in each case then-owned or existing or thereafter acquired or arising (the Prepetition Second Priority Collateral ). 17. Upon information and belief, the Original Indenture Trustee filed UCC-1 financing statements for purposes of perfecting the Prepetition Second Priority Liens, including UCC-1 financing statements that were filed to secure the Prepetition Second Priority Liens on the assets owned by the Lapsed Debtors. B. LAPSE AND RE-PERFECTION OF PREPETITION SECOND PRIORITY LIENS 18. The Original Indenture Trustee s financing statements with respect to each of the Lapsed Debtors lapsed prior to the Petition Date. No continuation statements were filed. 19. Instead, on January 12, 2018, during the preference period, new UCC-1 Financing Statements in favor of the Original Indenture Trustee were filed with the Office of the Secretary of State for the State of Pennsylvania against (a) Lapsed Debtor BTSI (Filing No ) (the New BTSI UCC-1 ), covering all of BTSI s assets now owned or hereafter acquired by Debtor or in which Debtor otherwise has rights and all proceeds thereof (Exhibit B); and (b) Lapsed Debtor BTDS (Filing No ) (the New BTDS UCC- 1 ), covering all of BTDS s assets now owned or hereafter acquired by Debtor or in which Debtor otherwise has rights and all proceeds thereof. Exhibit C. 20. In addition, on January 16, 2018, during the preference period, a new UCC-1 Financing Statement was filed in the Office of the Secretary of State for the Commonwealth of Virginia against Lapsed Debtor McRil (Filing No ) (the New McRil UCC-1 and collectively with the New BTSI UCC-1 and the New BTDS UCC-1, the New UCC-1s ), 5

6 Case MFW Doc 416 Filed 03/29/18 Page 6 of 9 covering all of McRil s assets now owned or hereafter acquired by Debtor or in which Debtor otherwise has rights and all proceeds thereof. Exhibit D. 21. Separately, and until January 15, 2018, the Original Indenture Trustee also did not have a valid mortgage on the Debtors distribution center located on the Real Property commonly known as 4650 and 4622 Shepard Trail, Rockford, Illinois. 22. On January 16, 2018, during the preference period, that certain Mortgage, Assignment of Leases and Rents and Security Agreement was recorded in Winnebago County, Illinois against the Real Property (the Mortgage and together with the New UCC-1s, the Preferential Liens ), pursuant to which Debtor Bon-Ton Distribution LLC ( Distribution ) granted a mortgage in favor of the Original Indenture Trustee on the Real Property. Exhibit E. 23. Upon information and belief, WSFS subsequently replaced the Original Indenture Trustee as the Successor Indenture Trustee. COUNT I AVOIDANCE OF PREFERENCES (11 U.S.C. 547 (b)) 24. The Committee repeats and realleges the allegations contained in each preceding paragraph of the Complaint as though fully set forth herein. 25. During the ninety days prior to the Petition Date (the Preference Period ), the Trustee was a creditor of one or more of the Debtors. 26. The Preferential Liens were each filed or recorded for the Trustee s benefit. 27. The Preferential Liens were each filed or recorded for or on account of an antecedent debt or debts owed by one or more of the Debtors before such Preferential Liens were filed or recorded. 28. The Preferential Liens were each filed or recorded during the Preference Period and each constitutes a transfer of an interest in the property of one or more of the Debtors. In 6

7 Case MFW Doc 416 Filed 03/29/18 Page 7 of 9 particular, the New UCC-1s are preferential as to the Lapsed Debtors and the Mortgage is preferential as to Distribution. 29. The Preferential Liens were each filed or recorded when each of the Lapsed Debtors, and Distribution, was insolvent. 30. Unless avoided, the Preferential Liens will enable the Trustee to receive more than it would have received if (i) the applicable Debtors chapter 11 cases were instead cases under chapter 7 of the Bankruptcy Code; (ii) the transfers had not been made; and (iii) the Trustee received payment on account of the debt secured by the Preferential Liens to the extent provided by the Bankruptcy Code. 31. Each Preferential Lien constitutes an avoidable preference pursuant to Bankruptcy Code section 547(b). COUNT II RECOVERY OF PREFERENTIAL TRANSFERS (11 U.S.C. 550) 32. Plaintiff repeats and realleges the allegations contained in each preceding paragraph of the Complaint as if fully set forth herein. 33. The Trustee was the entity for whose benefit each of the Preferential Liens were filed or recorded. 34. Each Preferential Lien that is avoided under Bankruptcy Code section 547(b) is recoverable pursuant to Bankruptcy Code section Plaintiff is entitled to recover, for the benefit of the applicable Debtors estates, the value of the Preferential Liens pursuant to Bankruptcy Code section 550(a). 7

8 Case MFW Doc 416 Filed 03/29/18 Page 8 of 9 COUNT III DECLARATORY JUDGMENT (28 U.S.C. 2201, 2202) 36. Plaintiff repeats and realleges the allegations contained in each preceding paragraph of the Complaint as if fully set forth herein. 37. Plaintiff contends that the Trustee s liens on the assets of the Lapsed Debtors, and the Mortgage recorded on the Real Property, are preferential and avoidable. 38. The Trustee disagrees, and contends that its liens are valid and not avoidable. 39. Thus, an actual, substantial, and justiciable controversy exists between the parties concerning whether the Preferential Liens are voidable. 40. Such a controversy is sufficient to warrant the issuance of a declaratory judgment that, notwithstanding the Debtors stipulations in the Final DIP Order to the contrary, the Preferential Liens are voidable. COUNT IV DISALLOWANCE OF SECURED CLAIM (11 U.S.C. 502(d)) 41. Plaintiff repeats and realleges the allegations contained in each preceding paragraph of the Complaint as if fully set forth herein. 42. As alleged above, each Preferential Lien constitutes an avoidable preference pursuant to Bankruptcy Code section 547(b), which is recoverable pursuant to Bankruptcy Code section Accordingly, pursuant to Bankruptcy Code section 502(d), the Trustee s secured claim must be disallowed until Plaintiff s claims in this adversary proceeding are finally determined. PRAYER FOR RELIEF WHEREFORE, by reason of the foregoing, the Committee requests that the Court enter an order: (1) avoiding each of the Preferential Liens pursuant to 11 U.S.C. 547(b); 8

9 Case MFW Doc 416 Filed 03/29/18 Page 9 of 9 (2) recovering for the benefit of the applicable Debtors estates each of the Preferential Liens pursuant to 11 U.S.C. 550; (3) declaring that each of the Preferential Liens is avoidable and unenforceable as against the applicable Debtors assets; (4) disallowing Defendants secured claim pursuant to 11 U.S.C. 502 pending final resolution of Plaintiff s claims; and (5) granting Plaintiff such other and further relief as the Court deems just, proper and equitable, including the costs and expenses of this action. Dated: March 29, 2018 PACHULSKI STANG ZIEHL & JONES LLP /s/ Bradford J. Sandler Jeffrey N. Pomerantz (CA Bar No ) Robert J. Feinstein (NY Bar No ) Bradford J. Sandler (DE Bar No. 4142) John A. Morris (NY Bar No ) 919 North Market Street, 17th Floor P.O. Box 8705 Wilmington, DE (Courier 19801) Telephone: Facsimile: jpomerantz@pszjlaw.com rfeinstein@pszjlaw.com bsandler@pszjlaw.com jmorris@pszjlaw.com Proposed Counsel for the Official Committee of Unsecured Creditors 9