SO ORDERED. Case 18-80856 Doc 83 Filed 11/21/18 Page 1 of 9 SIGNED this 21st day of November, 2018. IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA DURHAM DIVISION In re: Chapter 11 Advanced Sports Enterprises, Inc., et al., 1 Case No. 18-80856 (Jointly Administered Debtors. ORDER PURSUANT TO 11 U.S.C. 105, 365 AND 554 FOR APPROVAL OF GLOBAL PROCEDURES FOR (A REJECTING UNEXPIRED NONRESIDENTIAL REAL PROPERTY LEASES AND (B THE ABANDONMENT OF DE MINIMIS ASSETS This Matter is before the Court on the Motion of Debtors Pursuant to 11 U.S.C. 105, 365 and 554 for Approval of Global Procedures for (a Rejecting Unexpired Nonresidential Real Property Leases and (b the Abandonment of de Minimis Assets (the Motion of Advanced Sports Enterprises, Inc., Advanced Sports, Inc., Performance Direct, Inc., Bitech, Inc. and 1 The Debtors in this case, along with each Debtor s case number, are: (i Advanced Sports Enterprises, Inc., Case No. 18-80856; (ii Advanced Sports, Inc., Case No. 18-80857; (iii Performance Direct, Inc., Case No. 18-80860; (iv Bitech, Inc., Case No. 18-80858; and (v Nashbar Direct, Inc., Case No. 18-80859. Each Debtor is a North Carolina Corporation. 1
Case 18-80856 Doc 83 Filed 11/21/18 Page 2 of 9 Nashbar Direct, Inc. (collectively, the Debtors. All capitalized terms used but not defined herein shall have the meanings given to them in the Motion. The Court has considered the Motion, the Declaration of Patrick Cunnane in Support of First Day Motions and Applications, and the matters reflected in the record of the hearing held on the Motion on November 20, 2018. It appears that the Court has jurisdiction over this proceeding; that this is a core proceeding; that appropriate notice was given under the circumstances and that no other notice need be provided; that the relief sought in the Motion is in the best interests of the Debtors, their estates, and their creditors; and that good and sufficient cause exists for such relief Accordingly, it is hereby ORDERED as follows: 1. The Motion is granted as provided herein. 2. The Rejection Procedures are approved. 3. The Debtors shall comply with the following Rejection Procedures: (a (b (c Rejection Notice. The Debtors will file a notice or notices (the Rejection Notice that identify which Lease(s the Debtors intend to reject. The Rejection Notice shall contain, among other information: (i the name of the counter-party to the Lease; (ii the address of the property affected by the Lease; (iii the effective date of the rejection of the Lease; and (iv the deadline to serve an objection to the Rejection Notice. The Debtors may file multiple Rejection Notices on multiple dates. Service of the Rejection Notice. Within one business day of filing a Rejection Notice, the Debtors (through Kurtzman Carson Consultants, LLC shall serve a Rejection Notice via overnight mail to each Lease counter-party identified on the Rejection Notice. The transmission of the Rejection Notice shall also include a copy of the Order approving this Motion. The Debtors shall file a certificate of service indicating the service made upon the counter-parties to the Leases, and on all known parties with an interest in the properties subject to the Leases including sub-tenants or sub-landlords, within 5 business days of filing a Rejection Notice. Rejection Effective Date. The rejection of any Lease described on a Rejection Notice and approved pursuant to these Procedures shall be effective on the later of (i the date that the Rejection Notice is filed and served, (ii the date of the 2
Case 18-80856 Doc 83 Filed 11/21/18 Page 3 of 9 Debtors unequivocal surrender of the leased premises via the delivery of the keys, key codes, and alarm codes to the premises, as applicable, to the applicable lease counterparty, or, if not by delivering such keys and codes, then by providing notice that the landlord may re-let the premises and (iii the expiration of the deadline to file an Objection as set forth below. (the Rejection Effective Date. In the event that a counter-party to a Lease objects to the rejection of its Lease and such rejection is ultimately approved by the Court, the Rejection Effective Date shall, unless otherwise ordered by the Court, remain the applicable date as determined by the preceding sentence. (d (e (f (g Objection Procedures. Parties objecting to a proposed rejection must file and serve a written objection (an Objection so that such objection is filed with the Court and is actually received by counsel to the Debtors, Flaster/Greenberg, PC, 1835 Market Street, Suite 1050, Philadelphia, PA 19103 no later than ten (10 calendar days after the date the Debtors file the Rejection Notice (the Rejection Objection Deadline. Event of No Objection. In the event that a counter-party does not file a timely Objection and subject to the provisions of paragraph 4 below, the Court shall be deemed to have approved the rejection of that particular Lease without further Order of the Court on the Rejection Effective Date. Each individual lease in a Rejection Notice shall be treated independently for purposes of determining whether an objection was timely filed. Event of Objection. If an Objection is timely filed and not withdrawn or resolved, the Debtors shall file a notice with the Court requesting a hearing to consider the rejection of the Lease. The Debtors shall seek to have all Objections to a particular Rejection Notice heard at the same hearing whenever possible. Rejection Damages Claim. The counter-party to any Lease that is rejected pursuant to these procedures shall be permitted to file a lease rejection damage claim at the date that is the later of: (i the date fixed by this Court pursuant to 11 U.S.C. 501; (ii 30 days from the Rejection Date; or (iii 14 days from the date the objection is overruled. 4. In the event that the Debtors files one or more Rejection Notices in the accordance with the Rejection Procedures identified above, unless otherwise ordered by this Court upon a joint motion filed by the Debtors and the applicable landlord(s within thirty (30 days after the filing of the such Rejection Notice(s, the Lease(s identified on the Rejection Notices shall be deemed rejected on the Rejection Date without further Order of this Court. 3
Case 18-80856 Doc 83 Filed 11/21/18 Page 4 of 9 5. The Abandonment Process is approved and the Debtors are authorized to abandon any Abandonment Assets without further order of the Court. The applicable landlord or its designee shall be free to dispose of Abandonment Assets without notice or liability to any Debtor or non-debtor third party and without further notice or order of the Court and, to the extent applicable, the automatic stay is modified to allow such disposition; provided that notwithstanding anything to the contrary in this Order, the Debtors are not authorized hereunder to abandon, and are directed to remove no later than the effective date of the rejection of a nonresidential real property lease or sublease, any hazardous (as such term is defined in federal, state, or local law, rule, regulation, or ordinance materials and personally identifiable information located at the premises subject to such lease or sublease. Landlords rights, if any, to file claims for the costs of disposal of such property are fully reserved, as are the rights of any party in interest to object to such claims. 6. The Debtors are directed to serve a copy of this Order on all parties on the Master Service List within three (3 days of the entry of this Order and to file a certificate of service with the Clerk of the Court. [END OF DOCUMENT] 4
Case 18-80856 Doc 83 Filed 11/21/18 Page 5 of 9 Exhibit 2 Form Rejection Notice 5
Case 18-80856 Doc 83 Filed 11/21/18 Page 6 of 9 IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA DURHAM DIVISION In re: Chapter 11 Advanced Sports Enterprises, Inc., et al., 2 Case No. 18-80856 (Joint Administration Pending Debtors. [FIRST] OMNIBUS NOTICE OF REJECTION OF CERTAIN UNEXPIRED NONRESIDENTIAL REAL PROPERTY LEASES PARTIES RECEIVING THE OMNIBUS NOTICE SHOULD LOCATE THEIR NAMES AND THEIR CONTRACTS OR LEASES LISTED IN THE NOTICE PLEASE TAKE NOTICE that, on November 16, 2018 (the Petition Date, Advanced Sports Enterprises, Inc., Advanced Sports, Inc., Performance Direct, Inc., Bitech, Inc. and Nashbar Direct, Inc., as debtors and debtors in possession in the above-captioned chapter 11 cases (collectively, the Debtors, filed chapter 11 petitions commencing chapter 11 cases under the Bankruptcy Code, 11 U.S.C. 101-1532 (the Bankruptcy Code, in the United States Bankruptcy Court for the Middle District of North Carolina (the Bankruptcy Court. PLEASE TAKE FURTHER NOTICE that, on the Petition Date, the Debtors filed the Motion of Debtors Pursuant to 11 U.S.C. 105, 365 and 554 for Approval of Global Procedures for (a Rejecting Unexpired Nonresidential Real Property Leases and (b the 2 The Debtors in this case, along with each Debtor s case number, are: (i Advanced Sports Enterprises, Inc., Case No. 18-80856; (ii Advanced Sports, Inc., Case No. 18-80857; (iii Performance Direct, Inc., Case No. 18-80860; (iv Bitech, Inc., Case No. 18-80858; and (v Nashbar Direct, Inc., Case No. 18-80859. Each Debtor is a North Carolina Corporation. Error! Unknown document property name.
Case 18-80856 Doc 83 Filed 11/21/18 Page 7 of 9 Abandonment of de Minimis (the Motion. On [ ], 2018 the Bankruptcy Court entered an Order granting the Motion (the Order. A copy of the Order is attached hereto. PLEASE TAKE FURTHER NOTICE, that pursuant to the terms of the Order, the Debtor filed a Rejection Notice with the Court, as authorized by the Order, which identifies a Lease in which the Debtors have determined you are a counter-party. A copy of the Rejection Notice is attached hereto. PLEASE TAKE FURTHER NOTICE that, pursuant to the terms of the Order, the Debtors hereby provide notice of their intent to reject the lease(s referenced below (each a Lease : Landlord Debtor Entity Address PLEASE TAKE FURTHER NOTICE that, pursuant to the terms of the Order, the rejection of the Lease shall become effective as of, which is the later of (i the date that the Rejection Notice is filed and served, (ii the date of the Debtors unequivocal surrender of the leased premises via the delivery of the keys, key codes, and alarm codes to the premises, as applicable, to the applicable lease counterparty, or, if not by delivering such keys and codes, then by providing notice that the landlord may re-let the premises and (iii the expiration of the deadline to file an Objection as set forth below. (the Rejection Date without further notice, hearing or order of the Court. PLEASE TAKE FURTHER NOTICE that, should you object to the Debtors rejection of the Lease, you must file and serve a written objection so that such objection is filed with the Bankruptcy Court and actually received no later (the Rejection Objection 2
Case 18-80856 Doc 83 Filed 11/21/18 Page 8 of 9 Deadline, which is 10 calendar days after the date that the Debtors filed and served the Rejection Notice by counsel for the Debtors, Flaster/Greenberg, P.C., 1835 Market Street, Suite 1050, Philadelphia, PA 19103, Attn: William J. Burnett, Esq. and Northen Blue, LLP, 1414 Raleigh Road, Suite 435, Chapel Hill, NC 27517, Attn: John A. Northen. PLEASE TAKE FURTHER NOTICE that absent such an objection being filed and served in compliance with the foregoing, the rejection of the Lease shall become effective as of the Rejection Date without further notice, hearing or order of the Bankruptcy Court. PLEASE TAKE FURTHER NOTICE that, if an objection is properly filed and served on the Notice Parties as specified above, the Bankruptcy Court will schedule a hearing to consider that objection. If the Bankruptcy Court upholds the objection and determines the effective date of rejection of such lease, that date shall be the rejection date. If such objection is overruled or withdrawn or the Bankruptcy Court does not determine the date of rejection, the rejection date of such lease shall be deemed to have occurred on the Rejection Date. PLEASE TAKE FURTHER NOTICE that copies of the Order and the Motion are available at http://www.kccllc.net/advancedsports. 3
Case 18-80856 Doc 83 Filed 11/21/18 Page 9 of 9 Dated: Respectfully submitted, NORTHEN BLUE LLP /s/ John A. Northen North Carolina State Bar No. 6789 jan@nbfirm.com Vicki L. Parrott North Carolina State Bar No. 25449 vlp@nbfirm.com John Paul H. Cournoyer North Carolina State Bar No. 42224 jpc@nbfirm.com 1414 Raleigh Road, Suite 435 Chapel Hill, North Carolina 27517 Telephone: (919 968-4441 PROPOSED COUNSEL FOR THE DEBTORS-IN-POSSESSION FLASTER/GREENBERG P.C. William J. Burnett (PA Bar No. 75975 (pro hac application pending Harry J. Giacometti (PA Bar No. 55861 (pro hac application pending Damien Nicholas Tancredi (PA Bar No. 308317 (pro hac application pending 1835 Market Street, Suite 1050 Philadelphia, PA 19103 (215 279-9383 Telephone (215 279-9394 Facsimile william.burnett@flastergreenberg.com 4