Case CSS Doc 811 Filed 10/09/18 Page 1 of 6 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

Transcription

1 Case CSS Doc 811 Filed 10/09/18 Page 1 of 6 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: Chapter 11 CHARMING CHARLIE HOLDINGS INC., et al., 1 Case No (CSS Debtors. Jointly Administered STIPULATION REGARDING ALLOWANCE AND PAYMENT OF ADMINISTRATIVE EXPENSE CLAIM OF APPLIED PREDICTIVE TECHNOLOGIES, INC. This Stipulation (this Stipulation is entered into this 9th day of October, 2018, by and among the above captioned debtors and debtors-in-possession (the Reorganized Debtors and Applied Predictive Technologies, Inc. ( APT and, together with the Reorganized Debtors, collectively, the Parties. WHEREAS, on December 11, 2017 (the Petition Date, each of the Reorganized Debtors filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code (the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware (the Court ; WHEREAS, March 29, 2018, the Reorganized Debtors filed the Fourth Amended Joint Chapter 11 Plan of Reorganization of Charming Charlie Holdings Inc. and its Debtor Affiliates Pursuant to Chapter 11 of the Bankruptcy Code [Docket No. 564] (the Plan. 2 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, include: Charming Charlie Canada LLC (0693; Charming Charlie Holdings Inc. (6139; Charming Charlie International LLC (5887; Charming Charlie LLC (0263; Charming Charlie Manhattan LLC (7408; Charming Charlie USA, Inc. (3973; and Poseidon Partners CMS, Inc. (3302. The location of the Debtors service address is: 6001 Savoy Drive, 4th Floor, Houston, Texas Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the Plan.

2 Case CSS Doc 811 Filed 10/09/18 Page 2 of 6 WHEREAS, on April 3, 2018, the Bankruptcy Court entered its Findings of Fact, Conclusions of Law and Order Confirming the Fourth Amended Joint Chapter 11 Plan of Reorganization of Charming Charlie Holdings Inc. and Its Debtor Affiliates Pursuant to Chapter 11 of the Bankruptcy Code [Docket No. 584] (the Confirmation Order confirming the Plan; WHEREAS, on April 10, 2018, APT filed its Request for Allowance and Payment of Administrative Expense Priority Claim Pursuant to 11 U.S.C. 503(b(1 [Docket No. 597] (the Administrative Claim Application asserting, among other things, an administrative expense Claim under Section 503(b(1 of the Bankruptcy Code in the aggregate amount of $109, against Reorganized Debtor Charming Charlie USA, Inc. ( CCUSA relating to a software license and related services allegedly provided to CCUSA after the Petition Date (such administrative expense Claim being the APT Administrative Claim ; WHEREAS, on April 24, 2018, the Reorganized Debtors filed their Notice of (I Entry of Confirmation Order, (II Occurrence of Effective Date, and (III Related Bar Dates [Docket No. 618] stating that the Effective Date had occurred; WHEREAS, on July 23, 2018, the Reorganized Debtors filed their Second Omnibus Objection to Proofs of Claim [Docket No. 757] (the Objection. Under the Objection, the Reorganized Debtors objected to, among other things, the extent to which the APT Administrative Claim is entitled to administrative expense priority; WHEREAS, on August 15, 2018, APT filed its Response to Reorganized Debtors Second Omnibus Objection to Certain Proofs of Claim (Substantive [Docket No. 776] (the Response ;

3 Case CSS Doc 811 Filed 10/09/18 Page 3 of 6 WHEREAS, following arms length discussions between APT and the Reorganized Debtors, the Reorganized Debtors have stipulated as to the appropriate portion of the APT Administrative Claim entitled to administrative expense priority; WHEREAS, pursuant to paragraph 81 of the Confirmation Order and Section IX.A of the Plan, the Reorganized Debtors may compromise and settle Claims against the Debtors and their Estates without any further notice to or action, order or approval of the Bankruptcy Court after the Effective Date. NOW THEREFORE, it is hereby stipulated and agreed to by and among the Parties as follows: 1. The APT Administrative Claim shall be allowed in the total amount of $83, (the Administrative Expense Payment as an Allowed General Administrative Claim under Article II.A of the Plan. The balance of the APT Administrative Claim (which, for the avoidance of doubt, is $25, shall be deemed Allowed as a General Unsecured Claim (Class 4 under Article III.B of the Plan. The Administrative Expense Payment shall be paid to APT via check payable to Applied Predictive Technologies, Inc. and transmitted to Applied Predictive Technologies, Inc., Attn. Finance, 4250 N Fairfax Drive, 11th Floor, Arlington, VA 22203, at the times and in the amounts set forth below: Amount Due Payment Due Date $20, On or before October 15, 2018 $20, On or before November 15, 2018 $20, On or before December 1, 2018 $20, On or before December 21, 2018

4 Case CSS Doc 811 Filed 10/09/18 Page 4 of 6 2. For the avoidance of any doubt, this Stipulation modifies the APT Administrative Claim as set forth herein. Immediately upon APT s receipt of the final installment of the Administrative Expense Payment, any and all Administrative Claims held by or for the benefit of APT or its successors and assigns, including, without limitation, the APT Administrative Claim (as modified hereby, shall be deemed fully satisfied and discharged in all respects. 3. Immediately upon the effectiveness hereof, (i the Objection shall be deemed withdrawn solely with respect to the APT Administrative Claim and Administrative Claim Application and (ii the Response shall be deemed withdrawn. 4. Nothing in this Stipulation is intended to, or shall be deemed to, waive, limit, impair, or restrict any rights, remedies, or interests of the Parties under the Confirmation Order or the Plan. 5. The relief granted herein shall be binding upon any chapter 11 trustee appointed in these chapter 11 cases (and upon any chapter 7 trustee appointed in the event of a subsequent conversion of these chapter 11 cases to cases under chapter This Stipulation constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter hereof and, except as otherwise expressly provided herein, is not intended to confer upon any other person any rights or remedies hereunder. 7. The undersigned persons have full authority to execute this Stipulation on behalf of the respective Parties, and the respective Parties hereto have full knowledge of and have consented to this Stipulation. 8. This Stipulation is without prejudice to the right of the Reorganized Debtors (or any one or more of them to object, on any basis, to any Claim other than the APT

5 Case CSS Doc 811 Filed 10/09/18 Page 5 of 6 Administrative Claim now or hereafter held by APT or its successors and assigns, including, without limitation, Proofs of Claim No. 157 and 280 filed by APT against Reorganized Debtor Charming Charlie LLC. 9. Neither this Stipulation, nor any terms contained herein shall be offered or received in evidence or in any way referred to in any legal action or administrative proceeding among or between the parties hereto, other than as may be necessary: (a to enforce this Stipulation; or (b to seek damages or injunctive relief in connection therewith. 10. Each of the Parties shall bear its own attorneys fees and costs with respect to the execution and delivery of this Stipulation and the matters addressed herein. 11. This Stipulation may be executed in counterparts, any of which may be transmitted by facsimile or electronic mail, and each of which shall be deemed an original and all of which together shall constitute one and the same instrument. 12. This Stipulation shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflict of laws. 13. This Stipulation may not be amended without the express written consent of all Parties to this Stipulation. 14. This Stipulation shall be binding upon the Parties hereto and upon all of their affiliates, assigns and successors. 15. It is acknowledged that each Party has participated in and jointly consented to the drafting of this Stipulation and that any claimed ambiguity shall not be construed for or against either Party on account of such drafting. 16. The Court shall retain jurisdiction over any and all disputes or other matters arising under or otherwise relating to this Stipulation.

6 Case CSS Doc 811 Filed 10/09/18 Page 6 of 6 Dated: October 9, 2018 /s/ Domenic E. Pacitti Wilmington, Delaware Domenic E. Pacitti (DE Bar No Michael W. Yurkewicz (DE Bar No KLEHR HARRISON HARVEY BRANZBURG LLP 919 N. Market Street, Suite 1000 Wilmington, Delaware Telephone: ( Facsimile: ( and- Drew T. Parobek (admitted pro hac vice Kari B. Coniglio (admitted pro hac vice Jeffrey W. Bieszczak (admitted pro hac vice VORYS, SATER, SEYMOUR AND PEASE LLP 200 Public Square, Suite 1400 Cleveland, Ohio Telephone: ( Facsimile: ( Co-Counsel for the Reorganized Debtors /s/ Joel D. Nesset Joel D. Nesset (MN Bar No X COZEN O CONNOR 33 South 6th Street, Suite 3800 Minneapolis, Minnesota Telephone: ( JNesset@cozen.com Counsel for Applied Predictive Technologies, Inc.