Post on 23-Oct-2020
Court File No. CV-20-00647463-00CL
ONTARIO SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED
AND IN THE MATTER OF BROOKS BROTHERS GROUP, INC., BROOKS BROTHERS FAR EAST LIMITED, BBD HOLDING 1, LLC, BBD HOLDING 2, LLC, BBDI, LLC, BROOKS BROTHERS INTERNATIONAL, LLC, BROOKS BROTHERS RESTAURANT, LLC, DECONIC GROUP LLC, GOLDEN FLEECE MANUFACTURING GROUP, LLC, RBA WHOLESALE, LLC, RETAIL BRAND ALLIANCE GIFT CARD SERVICES, LLC, RETAIL BRAND ALLIANCE OF PUERTO RICO, INC., 696 WHITE PLAINS ROAD, LLC, AND BROOKS BROTHERS CANADA LTD.
APPLICATION OF BROOKS BROTHERS GROUP, INC. UNDER SECTION 46 OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED
APPLICANT
MOTION RECORD (Recognition of Lease Rejection Order)
October 11, 2020 OSLER, HOSKIN & HARCOURT LLP Box 50, 1 First Canadian Place Toronto ON M5X 1B8
Tracy Sandler (LSO# 32443N) Tel: 416.862.5890 Email: tsandler@osler.com
Shawn T. Irving (LSO# 500035U) Tel: 416.862.4733 Email: sirving@osler.com
Martino Calvaruso (LSO# 57359Q) Tel: 416.862.6665 Email: mcalvaruso@osler.com
Fax: 416.862.6666
Lawyers for the Applicant
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mailto:tsandler@osler.commailto:sirving@osler.commailto:mcalvaruso@osler.com
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ONTARIO SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED
AND IN THE MATTER OF BROOKS BROTHERS GROUP, INC., BROOKS BROTHERS FAR EAST LIMITED, BBD HOLDING 1, LLC, BBD HOLDING 2, LLC, BBDI, LLC, BROOKS BROTHERS INTERNATIONAL, LLC, BROOKS
BROTHERS RESTAURANT, LLC, DECONIC GROUP LLC, GOLDEN FLEECE MANUFACTURING GROUP, LLC, RBA WHOLESALE, LLC, RETAIL BRAND
ALLIANCE GIFT CARD SERVICES, LLC, RETAIL BRAND ALLIANCE OF PUERTO RICO, INC., 696 WHITE PLAINS ROAD, LLC, AND BROOKS
BROTHERS CANADA LTD.
APPLICATION OF BROOKS BROTHERS GROUP, INC. UNDER SECTION 46 OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36,
AS AMENDED
Applicant
SERVICE LIST
(as at October 11, 2020)
PARTY CONTACT
OSLER, HOSKIN & HARCOURT LLP Box 50, 1 First Canadian Place 100 King Street West, Suite 6200 Toronto, ON M5X 1B8
Fax: 416.862.6666
Canadian Counsel to the Applicant and the Chapter 11 Debtors
Tracy Sandler Tel: 416.862.5890 Email: tsandler@osler.com Shawn Irving Tel: 416.862.4733 Email: sirving@osler.com
Martino Calvaruso Tel: 416.862.6665 Email: mcalvaruso@osler.com
Mark Sheeley Tel: 416.862.6791 Email: msheeley@osler.com
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WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, NY 10153
Fax: 212.310.8007
U.S. Counsel to the Chapter 11 Debtors
Gary T. Holtzer Tel: 212.310.8463 Email: gary.holtzer@weil.com Garrett A. Fail Tel: 212.310.8451 Email: garrett.fail@weil.com
David J. Cohen Tel: 212.310.8107 Email: davidj.cohen@weil.com
ALVAREZ & MARSAL CANADA INC. 200 Bay Street, Suite 200 Toronto, ON M5J 2J1 Information Officer
Al Hutchens Tel: 416.847.5159 Email: ahutchens@alvarezandmarsal.com Melanie MacKenzie Tel: 416.847.5158 Email: mmackenzie@alvarezandmarsal.com
TORYS LLP 79 Wellington St. W., 30th Floor Box 270, TD South Tower Toronto, ON M5K 1N2 Fax: 416.865.7380
Counsel to the Information Officer
Tony DeMarinis Tel: 416.865.8162 Email: tdemarinis@torys.com Adam Slavens Tel: 416.865.7333 Email: aslavens@torys.com Mike Noel Tel: 416.865.7378 Email: mnoel@torys.com
WOMBLE BOND DICKINSON (US) LLP 1313 North Market Street, Suite 1200 Wilmington, DE 19801 Fax: 302.252.4330 U.S. Counsel to Wells Fargo Bank, National Association
Matthew Ward Tel: 302.252.4338 Email: matthew.ward@wbd-us.com
Morgan Patterson Tel: 302.252.4326
Email: morgan.patterson@wbd-us.com
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mailto:gary.holtzer@weil.commailto:garrett.fail@weil.commailto:davidj.cohen@weil.commailto:ahutchens@alvarezandmarsal.commailto:mmackenzie@alvarezandmarsal.commailto:tdemarinis@torys.commailto:aslavens@torys.commailto:mnoel@torys.commailto:matthew.ward@wbd-us.commailto:morgan.patterson@wbd-us.com
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CHOATE, HALL & STEWART LLP Two International Place Boston, MA 02110-1726 Fax: 617.248.4000; 617.502.5127
U.S. Counsel to Wells Fargo Bank, National Association, the Prepetition ABL Agent
Kevin Simard Tel: 617.248.4086 Email: ksimard@choate.com Mark D. Silva Tel: 617.248.5127 Email: msilva@choate.com Jonathan D. Marshall Tel: 617.248.4799 Email: jmarshall@choate.com
GOODMANS LLP Bay Adelaide Centre - West Tower 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7 Fax: 416.979.1234 Canadian Counsel to SPARC Group LLC and Authentic Brands Group LLC
Brendan O’Neill Tel: 416.849.6017 Email: boneill@goodmans.ca
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 Fax: 212.757.3990
U.S. Counsel to SPARC Group LLC and Authentic Brands Group LLC
Brian S. Hermann Tel: 212.373.3545 Email: bhermann@paulweiss.com
Kelley A. Cornish Tel: 212.373.3493 Email: kcornish@paulweiss.com
Edward T. Ackerman Tel: 212.373.3310 Email: eackerman@paulweiss.com
Austin Witt Tel: 212.373.3181 Email: awitt@paulweiss.com Brian Bolin Tel: 212.373.3262 Email: bbolin@paulweiss.com
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mailto:ksimard@choate.commailto:msilva@choate.commailto:jmarshall@choate.commailto:boneill@goodmans.camailto:bhermann@paulweiss.commailto:kcornish@paulweiss.commailto:eackerman@paulweiss.commailto:awitt@paulweiss.commailto:bbolin@paulweiss.com
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POTTER ANDERSON & CORROON LLP 1313 N. Market Street, 6th Floor Wilmington, DE 19801-3700
Fax: 302.658.1192 U.S. Counsel to SPARC Group LLC and Authentic Brands Group LLC
Christopher M. Samis Tel: 302.984.6050 Email: csamis@potteranderson.com
L. Katherine Good Tel: 302.984.6049 Email: kgood@potteranderson.com
R. Stephen McNeill Tel: 302.984.6171 Email: rmcneill@potteranderson.com
CAMELINO GALESSIERE LLP 6 Adelaide Street East, Suite 220 Toronto, ON M5C 1H6 Fax: 416.306.3820 Counsel to Ivanhoe Cambridge Inc.
Linda Galessiere Tel: 416.306.3827 Email: lgalessiere@cglegal.ca
Jessica Wuthmann Tel: 416.306.3836 Email: jwuthmann@cglegal.ca
IVANHOE CAMBRIDGE II INC. 95 Wellington Street West, Suite 300 Toronto, ON M5J 2R2 Fax: 905.879.1888 Landlord for Vaughan Mills Shopping Centre
Stephen Gascoine Tel: 905.879.1777 Email: stephen.gascoine@ivanhoecambridge.com
IVANHOE CAMBRIDGE INC. 95 Wellington Street West, Suite 300 Toronto, ON M5J 2R2 Landlord for Tsawwassen Mills Shopping Centre
Angel Zhang Email: angel.zhang@ivanhoecambridge.com
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mailto:csamis@potteranderson.commailto:kgood@potteranderson.commailto:rmcneill@potteranderson.commailto:lgalessiere@cglegal.camailto:jwuthmann@cglegal.camailto:stephen.gascoine@ivanhoecambridge.commailto:angel.zhang@ivanhoecambridge.com
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HALTON HILLS SHOPPING CENTRE PARTNERSHIP 105 Eisenhower Parkway Roseland, NJ 07068 – with a copy to – SIMON PROPERTY GROUP, INC. 225 West Washington Street Indianapolis, IN 46204
Landlord for Toronto Premium Outlets
Jesse Siebein Email: jsiebein@simon.com
RIOCAN MANAGEMENT INC., as agent for RIOCAN HOLDINGS (TJV) INC. AND 1633272 ALBERTA ULC
700 Lawrence Avenue West, Suite 315 Toronto, ON M6A 3B4 – with a copy to – RIOCAN REAL ESTATE INVESTMENT TRUST 2300 Yonge Street, Suite 500 P.O. Box 2386 Toronto, ON M4P 1E4 Landlord for Tanger Outlets (Ottawa)
Eric Topolnsiky Email: etopolnisk@riocan.com
THE OUTLET CONNECTION (NIAGARA) LIMITED 95 Wellington Street West, Suite 300 Toronto, ON M5J 2R2 Landlord for Outlet Connection, Niagara
April Daku Email: april.daku@ivanhoecambridge.com
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mailto:jsiebein@simon.commailto:etopolnisk@riocan.commailto:april.daku@ivanhoecambridge.com
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TEMPLETON DOC LIMITED PARTNERSHIP c/o McArthurGlen Designer Outlet Vancouver 7899 Templeton Road Richmond, BC V7B 1Y7 Landlord for McArthur Glen Designer Outlet Vancouver
Christie Lim Email: christie.Lim@mcarthurglen.com
CROSSIRON MILLS HOLDINGS INC. c/o Ivanhoe Cambridge Inc. 261055 CrossIron Blvd. Rocky View, AB T4A 0G3 Landlord for CrossIron Mills Shopping Centre
Sheri McEwan Tel: 416.369.1308 Email: sheri.mcewen@ivanhoecambridge.com
CEC LEASEHOLDS INC. c/o 20 VIC Management Inc. 1550 Home Oil Tower 324 - 8th Avenue S.W. Calgary, AB T2P 2Z2 Tel: 403.441.4901 Fax: 403.441.4902 – with a copy to – 20 VIC MANAGEMENT INC. One Queen Street East Suite 300, Box #88 Toronto, ON MSC 2W5 Fax: 416.955.0569 – with a copy to – CUSHMAN & WAKEFIELD ASSET SERVICES ULC 333 – 7th Avenue S.W. Suite 900 Calgary, AB T2P 2Z1
Landlord for Calgary Eaton Centre
Pina Dennis Email: corereception@cushwake.com
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mailto:christie.Lim@mcarthurglen.commailto:sheri.mcewen@ivanhoecambridge.commailto:corereception@cushwake.com
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BCIMC REALTY CORP. 2940 Jutland Road, Suite 300 Victoria, BC V8T 5K2 Tel: 778.410.7239 Landlord for Bayview Village Shopping Centre
Jennifer Miller Email: jennifer.miller@quadreal.com
BLANEY McMURTRY LLP Lawyers 1500 - 2 Queen Street East Toronto, ON M5C 3G5 Tel: (416) 593-1221 Fax: (416) 593-5437
Counsel to bcIMC Realty Corporation
John C. Wolf Email: Jwolf@blaney.com Brendan Jones Email: bjones@blaney.com
BLAKES, CASSELS & GRAYDON LLP 199 Bay Street, Suite 4000 Commerce Court West Toronto, ON M5L 1A9 Fax: 416.863.2653 Counsel to Landlord for 110 Bloor Street
Pamela L. J. Huff Tel: 416.863.2958 Email: pamela.huff@blakes.com Joseph Grignano Tel: 416.863.4025 Email: joseph.grignano@blakes.com
110 BLOOR STREET WEST INC. 360 Queen Street West, Suite 200 Toronto, ON M5Y 2A2 – with a copy to – CUSHMAN & WAKEFIELD ASSET SERVICES ULC 1 Queen Street East, 3rd Floor Atrium, Box 72 Toronto, ON M5C 2W5 Tel: 416.360.8322 Fax: 416.360.6865 Landlord for 110 Bloor Street
Benjamin Rekers Email: benjamin.rekers@prowinko.com; Violet Wytiuk Email: violet.wytiuk@cushwake.com
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mailto:jennifer.miller@quadreal.commailto:Jwolf@blaney.commailto:bjones@blaney.commailto:pamela.huff@blakes.commailto:joseph.grignano@blakes.commailto:benjamin.rekers@prowinko.commailto:violet.wytiuk@cushwake.com
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475189 BRITISH COLUMBIA LTD. c/o Warrington PCI Management 1700 - 1030 West Georgia Street Vancouver, BC V6E 2Y3 Landlord for 1026 Alberni Street
Ana Lagovschi Tel: 604.331.5266 Email: alagovschi@warringtonpci.com Deborah Cousins Email: dcousins@warringtonpci.com
GARDINER ROBERTS LLP 22 Adelaide St W #3600 Toronto, ON M5H 4E3 Fax: 416.865.6636 Counsel to Landlord for Royal Bank Plaza
S. Michael Citak Tel: 416.856.6706 Email: mcitak@grllp.com
OXFORD PROPERTIES GROUP INC., 200 BAY ST. HOLDINGS INC. and CPP INVESTMENT BOARD REAL ESTATE HOLDINGS INC., by their manager, without personal liability, OPGI Management GP Inc., as general partner of the OPGI Management Limited Partnership 200 Bay Street, Suite 1305, South Tower Toronto, ON M5J 2J1 Landlord for Royal Bank Plaza
Sabina Kwong Tel: 416.865.6859 Email: skwong@oxfordproperties.com John Spano Email: jspano@oxfordproperties.com
CANADA REVENUE AGENCY 1 Front Street West Toronto, ON M5J 2X6
Pat Confalone Tel: 416.954.6514 Fax: 416.964.6411 Email: pat.confalone@cra-arc.gc.ca
DEPARTMENT OF JUSTICE CANADA 120 Adelaide Street West, Suite 400 Toronto, ON M5H 1T1 Fax: 416.973.0810
Diane Winters Tel: 416.973.3172 Email: diane.winters@justice.gc.ca Rakhee Bhandari Tel: 416.9752.8563 Email: rakhee.bhandari@justice.gc.ca
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mailto:alagovschi@warringtonpci.commailto:dcousins@warringtonpci.commailto:mcitak@grllp.commailto:skwong@oxfordproperties.commailto:jspano@oxfordproperties.commailto:pat.confalone@cra-arc.gc.camailto:diane.winters@justice.gc.camailto:rakhee.bhandari@justice.gc.ca
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MINISTRY OF FINANCE (ONTARIO) LEGAL SERVICES BRANCH College Park 11th Floor 777 Bay St, Toronto, ON M5G 2C8 Fax: 416.325.1460
Kevin O’Hara Tel: 416.327.8463 Email: kevin.ohara@ontario.ca
MINISTRY OF JUSTICE AND ATTORNEY GENERAL (BC) Legal Services Branch 400 - 1675 Douglas Street Victoria, BC V8W 2G5 Mailing Address: PO BOX 9289 STN PROV GOVT Victoria, BC V8W 9J7 Fax: 250.387.0700
Aaron Welch Tel: 250.356.8589 Email: aaron.welch@gov.bc.ca Revenue and Taxation Group Legal Services Email: AGLSBRevTax@gov.bc.ca
MINISTRY OF FINANCE (ALBERTA) The Tax and Revenue Administration 9811 – 109 Street Edmonton, AB T5K 2L5
Travis Toews, Minister Tel: 780.427.2711 Email: tbf.minister@gov.ab.ca Grant Hunter, Associate Minister Tel: 780 427-0240 Email: associateminister-rtr@gov.ab.ca
MINISTRY OF JUSTICE AND SOLICITOR GENERAL (ALBERTA) Legal Services Peace Hills Trust Tower, 2nd Floor 10011 – 109 Street Edmonton, AB T5J 3S8
General Enquiries Tel: 780.427.2711 Email: ministryofjustice@gov.ab.ca
Koffman Kalef LLP Counsel to Landlord 475189 British Columbia Ltd, c/o Warrington PCI Management, for Alberni Street location, Vancouver
Shawn A. Poisson Email: sap@kkbl.com
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mailto:kevin.ohara@ontario.camailto:aaron.welch@gov.bc.camailto:AGLSBRevTax@gov.bc.camailto:tbf.minister@gov.ab.camailto:associateminister-rtr@gov.ab.camailto:ministryofjustice@gov.ab.camailto:sap@kkbl.com
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Email List:
tsandler@osler.com; sirving@osler.com; mcalvaruso@osler.com; msheeley@osler.com;
gary.holtzer@weil.com; garrett.fail@weil.com; davidj.cohen@weil.com; ahutchens@alvarezandmarsal.com; mmackenzie@alvarezandmarsal.com; tdemarinis@torys.com;
aslavens@torys.com; matthew.ward@wbd-us.com; morgan.patterson@wbd-us.com; ksimard@choate.com; msilva@choate.com; jmarshall@choate.com; boneill@goodmans.ca;
bhermann@paulweiss.com; kcornish@paulweiss.com; eackerman@paulweiss.com; awitt@paulweiss.com; bbolin@paulweiss.com; csamis@potteranderson.com;
kgood@potteranderson.com; rmcneill@potteranderson.com; lgalessiere@cglegal.ca; jwuthmann@cglegal.ca; stephen.gascoine@ivanhoecambridge.com;
angel.zhang@ivanhoecambridge.com; jsiebein@simon.com; etopolnisk@riocan.com; april.daku@ivanhoecambridge.com; christie.Lim@mcarthurglen.com;
sheri.mcewen@ivanhoecambridge.com; kate.davies@ivanhoecambridge.com; corereception@cushwake.com; jennifer.miller@quadreal.com; pamela.huff@blakes.com;
joseph.grignano@blakes.com; benjamin.rekers@prowinko.com; violet.wytiuk@cushwake.com; alagovschi@warringtonpci.com; dcousins@warringtonpci.com; mcitak@grllp.com;
skwong@oxfordproperties.com; jspano@oxfordproperties.com; pat.confalone@cra-arc.gc.ca; diane.winters@justice.gc.ca; rakhee.bhandari@justice.gc.ca; kevin.ohara@ontario.ca;
aaron.welch@gov.bc.ca; AGLSBRevTax@gov.bc.ca; tbf.minister@gov.ab.ca; associateminister-rtr@gov.ab.ca; ministryofjustice@gov.ab.ca; jwolf@blaney.com; bjones@blaney.com; sap@kkbl.com
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Table of Contents Tab Document Page
1 Notice of Motion, dated Oct. 11, 2020 13
2 Draft Recognition Order (Lease Rejection Order) 23
3 Third Affidavit of Stephen Marotta, sworn Oct. 11, 2020 35
Ex A First Marotta Affidavit, sworn Sep. 13, 2020 47
Ex B Second Marotta Affidavit, sworn Sep. 21, 2020 92
Ex C Initial Recognition Order (Foreign Main Proceedings), issued Sep. 14, 2020
126
Ex D Supplemental Order (Foreign Main Proceedings), issued Sep. 14, 2020
132
Ex E Endorsement of Hainey J., Sep. 14, 2020 159
Ex F Recognition, Approval and Vesting Order, issued Sep. 25, 2020
175
Ex G Notice of Rejection of Leases, Sep. 19, 2020 201
Ex H Notice of Rejection of Contract, Sep. 19, 2020 215
Ex I Lease Rejection Order, entered Oct. 8, 2020 220
Ex J Bar Date Order, entered Aug. 11, 2020 227
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Tab 1
13
Court File No. CV-20-00647463-00CL
ONTARIO SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED
AND IN THE MATTER OF BROOKS BROTHERS GROUP, INC., BROOKS BROTHERS FAR EAST LIMITED, BBD HOLDING 1, LLC, BBD HOLDING 2, LLC, BBDI, LLC, BROOKS BROTHERS INTERNATIONAL, LLC, BROOKS BROTHERS RESTAURANT, LLC, DECONIC GROUP LLC, GOLDEN FLEECE MANUFACTURING GROUP, LLC, RBA WHOLESALE, LLC, RETAIL BRAND ALLIANCE GIFT CARD SERVICES, LLC, RETAIL BRAND ALLIANCE OF PUERTO RICO, INC., 696 WHITE PLAINS ROAD, LLC, AND BROOKS BROTHERS CANADA LTD.
APPLICATION OF BROOKS BROTHERS GROUP, INC. UNDER SECTION 46 OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED
APPLICANT
NOTICE OF MOTION (Recognition of Lease Rejection Order)
Brooks Brothers Group, Inc. (“BBGI”), in its capacity as foreign representative
(in such capacity, the “Foreign Representative”) of itself as well as Brooks Brothers
Canada Ltd. (“Brooks Brothers Canada”) and 121 other affiliated debtors in possession
(collectively, the “Chapter 11 Debtors” and together with their non-debtor affiliates,
1 In addition to BBGI and Brooks Brothers Canada, the other 12 Chapter 11 Debtors are Brooks Brothers
Far East Limited; BBD Holding 1, LLC; BBD Holding 2, LLC; BBDI, LLC; Brooks Brothers International, LLC; Brooks Brothers Restaurant, LLC; Deconic Group LLC; Golden Fleece Manufacturing Group, LLC; RBA Wholesale, LLC; Retail Brand Alliance Gift Card Services, LLC; Retail Brand Alliance of Puerto Rico, Inc.; and 696 White Plains Road, LLC.
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“BB Group”), will make a motion to the Ontario Superior Court of Justice (Commercial
List) (the “Canadian Court”) on October 16, 2020 at 9:15 a.m., or as soon thereafter as
the motion can be heard, at 330 University Avenue, Toronto, Ontario.
PROPOSED METHOD OF HEARING: The motion is to be heard by judicial
videoconference via Zoom at Toronto, Ontario, in accordance with the Changes to
Commercial List operations in light of COVID-19 practice direction dated March 16,
2020, and the Consolidated Notice to the Profession, Litigants, Accused Persons, Public
and the Media, dated May 13, 2020, issued by Chief Justice Morawetz. The Zoom
conference call-in details are attached as Schedule “A” hereto.
THE MOTION IS FOR: an order, inter alia:
(a) recognizing and giving effect to the Lease Rejection Order (as defined
below); and
(b) such further and other relief as counsel may request and this Honourable
Court may grant.
THE GROUNDS FOR THE MOTION ARE:
The Chapter 11 Cases and the Canadian proceedings
1. On July 8, 2020 (the “Initial Petition Date”), each of the Chapter 11 Debtors other
than Brooks Brothers Canada (the “Initial Chapter 11 Debtors”) filed voluntary petitions
for relief pursuant to Chapter 11 of the U.S. Bankruptcy Code with the United States
Bankruptcy Court for the District of Delaware (the “U.S. Court”). At the time, Brooks
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Brothers Canada did not seek relief under Chapter 11 as the Chapter 11 Debtors were
attempting to pursue an out-of-court restructuring for Brooks Brothers Canada.
2. Since the Initial Petition Date, the Initial Chapter 11 Debtors have completed a
successful sales and marketing process for the BB Group’s (now former) business
(“Brooks Brothers” or the “Business”), which resulted in a sale (the “Sale
Transaction”) of substantially all of the Chapter 11 Debtors’ assets, including the assets
of, but not the equity in, Brooks Brothers Canada, to SPARC Group LLC (the “Buyer”)
for aggregate proceeds totaling US$325 million.
3. The Initial Chapter 11 Debtors reached a global resolution with their prepetition
creditors, which provided for, among other things, the impairment and settlement of their
senior secured lenders’ claims for US$205.8 million and for the remainder of the proceeds
from the Sale Transaction to be delivered to the Chapter 11 Debtors’ estates for an
efficient administration and wind-down of the Chapter 11 Cases.
4. The U.S. Court entered an order approving the Sale Transaction on August 14,
2020 (the “Sale Order”).
5. The Sale Transaction closed on August 31, 2020, subject to the conveyance of
Brooks Brothers Canada’s assets (the “Canadian Assets”), including Brooks Brothers
Canada’s inventory (the “Canadian Acquired Inventory”).
6. Following the Sale Order, but before the Sale Transaction had closed, the Chapter
11 Debtors and the Buyer determined that it would be beneficial for Brooks Brothers
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Canada to obtain an order of this Court recognizing the Sale Order and approving the sale
of the Canadian Assets free and clear of all claims and encumbrances.
7. Brooks Brothers Canada filed a voluntary petition for relief pursuant to Chapter
11 of the U.S. Bankruptcy Code with the U.S. Court on September 10, 2020.
8. On September 11, 2020, the U.S. Court entered orders:
(a) authorizing BBGI to act as foreign representative on behalf of the Chapter
11 Debtors in these CCAA proceedings (the “Foreign Representative
Order”), and
(b) directing the administration of Brooks Brothers Canada’s Chapter 11 Case
jointly with the other Chapter 11 Cases (the “Second Joint
Administration Order”).
9. On September 14, 2020, this Court issued:
(a) an order (the “Initial Recognition Order”), among other things,
recognizing the Chapter 11 Cases as foreign main proceedings pursuant to
Part IV of the CCAA; and
(b) a supplemental order (the “Supplemental Order”), among other things:
(i) recognizing the Foreign Representative Order and Second Joint
Administration Order;
(ii) appointing Alvarez & Marsal Canada Inc. as the information
officer in this proceeding;
(iii) granting the Administration Charge (as defined in the
Supplemental Order); and
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(iv) granting the Directors’ Charge (as defined in the Supplemental
Order).
10. On September 18, 2020, the U.S. Court entered an order (the “‘All Orders’
Order”) directing that substantially all orders previously entered in the Chapter 11 Cases,
including an order entered August 7, 2020 (the “Rejection Procedures Order”)
authorizing the implementation of procedures for rejecting unexpired leases, apply to
Brooks Brothers Canada.
11. On September 25, 2020, the Canadian Court issued an order (the “Recognition,
Approval and Vesting Order”), among other things:
(a) recognizing and giving effect to the ‘All Orders’ Order;
(b) approving the sale of the Canadian Assets of the Chapter 11 Debtors over
which the Canadian Court has jurisdiction to the Buyer approving the sale
of the Canadian Assets, vesting the Canadian Assets in and to the Buyer
free and clear of all claims and encumbrances, and authorizing the Chapter
11 Debtors to take such steps and execute such additional documents as
may be necessary or desirable for the completion of the sale of the
Canadian Assets to the Buyer; and
(c) authorizing and directing the Chapter 11 Debtors to maintain account
balances in the Chapter 11 Debtors’ Canadian bank accounts, which
account balances shall, in aggregate, be no less than the aggregate amount
of the Administration Charge and the Directors’ Charge.
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12. The Chapter 11 Debtors and the Buyer are working together to close the sale
transaction for the Canadian Assets as quickly as possible.
Rejection of Brooks Brothers Canada’s unexpired leases
13. On September 19, 2020, in accordance with the Rejection Procedures Order, the
Chapter 11 Debtors filed a notice of rejection (the “Lease Rejection Notice”) in respect
of all 12 of Brooks Brothers Canada’s unexpired leases.
14. On October 8, 2020, the U.S. Court entered an order (the “Lease Rejection
Order”), among other things, deeming each of Brooks Brothers Canada’s leases to be
rejected and requiring the Chapter 11 Debtors to pay rent for the customary Canadian 30-
day notice period.
Recognition of the Lease Rejection Order is appropriate
15. The Lease Rejection Order is necessary to affect the rejection of Brooks Brothers
Canada’s leases and to ensure the protection of the Chapter 11 Debtors’ estate, for the
benefit of all of the Chapter 11 Debtors’ stakeholders.
General
16. The CCAA, including Part IV.
17. Such further and other grounds as counsel may advise and this Honourable Court
may permit.
THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the
motion:
(a) the Third Affidavit of Stephen Marotta, sworn October 11, 2020;
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(b) the Second Report of the Information Officer; and
(c) such further and other evidence as counsel may advise and this Honourable
Court may permit.
October 11, 2020 OSLER, HOSKIN & HARCOURT LLP Box 50, 1 First Canadian Place Toronto ON M5X 1B8
Tracy Sandler (LSO# 32443N) Tel: 416.862.5890 Email: tsandler@osler.com
Shawn T. Irving (LSO# 500035U) Tel: 416.862.4733 Email: sirving@osler.com
Martino Calvaruso (LSO# 57359Q) Tel: 416.862.6665 mcalvaruso@osler.com
Fax: 416.862.6666
Lawyers for the Applicant
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SCHEDULE “A” – Zoom Conference Call-in Details
Link to join Zoom Meeting:
https://us02web.zoom.us/j/89204847456?pwd=SFpIQU1mZnBGZ0NZNjRpZXF5cWg3UT09
Zoom Meeting ID and Passcode
Meeting ID: 892 0484 7456 Passcode: 876232
One tap mobile dial-in numbers for Canada
+16473744685,,89204847456#,,,,,,0#,,876232# Canada +17789072071,,89204847456#,,,,,,0#,,876232# Canada +15873281099,,89204847456#,,,,,,0#,,876232# Canada
Dial-in numbers by location
+1 204 272 7920 Canada +1 438 809 7799 Canada +1 587 328 1099 Canada +1 647 374 4685 Canada +1 647 558 0588 Canada +1 778 907 2071 Canada +1 253 215 8782 US (Tacoma) +1 301 715 8592 US (Germantown) +1 312 626 6799 US (Chicago) +1 346 248 7799 US (Houston) +1 646 558 8656 US (New York) +1 669 900 9128 US (San Jose)
Meeting ID: 892 0484 7456 Passcode: 876232
Link for additional local dial-in numbers:
https://us02web.zoom.us/u/kHyoQ2L73
21
https://us02web.zoom.us/j/89204847456?pwd=SFpIQU1mZnBGZ0NZNjRpZXF5cWg3UT09https://us02web.zoom.us/j/89204847456?pwd=SFpIQU1mZnBGZ0NZNjRpZXF5cWg3UT09https://us02web.zoom.us/u/kHyoQ2L73
IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED Court File No: CV-20-00647463-00CL
AND IN THE MATTER OF BROOKS BROTHERS GROUP, INC., BROOKS BROTHERS FAR EAST LIMITED, BBD HOLDING 1, LLC, BBD HOLDING 2, LLC, BBDI, LLC, BROOKS BROTHERS INTERNATIONAL, LLC, BROOKS BROTHERS RESTAURANT, LLC, DECONIC GROUP LLC, GOLDEN FLEECE MANUFACTURING GROUP, LLC, RBA WHOLESALE, LLC, RETAIL BRAND ALLIANCE GIFT CARD SERVICES, LLC, RETAIL BRAND ALLIANCE OF PUERTO RICO, INC., 696 WHITE PLAINS ROAD, LLC, AND BROOKS BROTHERS CANADA LTD. APPLICATION OF BROOKS BROTHERS GROUP, INC. UNDER SECTION 46 OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED
Applicant
Ontario SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST Proceeding commenced at Toronto
NOTICE OF MOTION
(Recognition of Lease Rejection Order)
OSLER, HOSKIN & HARCOURT, LLP P.O. Box 50, 1 First Canadian Place Toronto, ON M5X 1B8 Tracy Sandler (LSO# 32443N) Tel: 416.862.5890 tsandler@osler.com Shawn Irving (LSO# 50035U) Tel: 416.862.4733 sirving@osler.com Martino Calvaruso (LSO# 57359Q) Tel: 416.862.6665 mcalvaruso@osler.com Fax: 416.862.6666 Lawyers for the Applicant
22
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Tab 2
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Court File No.: CV-20-00647463-00CL
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
THE HONOURABLE MR.
JUSTICE HAINEY
) ) )
FRIDAY, THE 16th
DAY OF OCTOBER, 2020
IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED
AND IN THE MATTER OF BROOKS BROTHERS GROUP, INC., BROOKS BROTHERS FAR EAST LIMITED, BBD HOLDING 1, LLC,
BBD HOLDING 2, LLC, BBDI, LLC, BROOKS BROTHERS INTERNATIONAL, LLC, BROOKS BROTHERS RESTAURANT, LLC,
DECONIC GROUP LLC, GOLDEN FLEECE MANUFACTURING GROUP, LLC, RBA WHOLESALE, LLC, RETAIL BRAND ALLIANCE
GIFT CARD SERVICES, LLC, RETAIL BRAND ALLIANCE OF PUERTO RICO, INC., 696 WHITE PLAINS ROAD, LLC, AND BROOKS
BROTHERS CANADA LTD.
APPLICATION OF BROOKS BROTHERS GROUP, INC. UNDER SECTION 46 OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT,
R.S.C. 1985, c. C-36, AS AMENDED
RECOGNITION ORDER (Lease Rejection Order)
THIS MOTION, made by Brooks Brothers Group, Inc. (“BBGI”) in its capacity as the
foreign representative (the “Foreign Representative”) of BBGI, Brooks Brothers Far East
Limited, BBD Holding 1, LLC, BBD Holding 2, LLC, BBDI, LLC, Brooks Brothers
International, LLC, Brooks Brothers Restaurant, LLC, Deconic Group LLC, Golden Fleece
Manufacturing Group, LLC, RBA Wholesale, LLC, Retail Brand Alliance Gift Card Services,
LLC, Retail Brand Alliance of Puerto Rico, Inc., 696 White Plains Road, LLC, and Brooks
Brothers Canada Ltd. (collectively, the “Chapter 11 Debtors”), pursuant to the Companies’
Creditors Arrangement Act, R.S.C. 1985, c. C-36, as amended (the “CCAA”) for an Order,
among other things, recognizing and giving effect to the Lease Rejection Order (as defined
herein) granted by the United States Bankruptcy Court for the District of Delaware (the “U.S.
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Bankruptcy Court”), made in the cases commenced by the Chapter 11 Debtors pursuant to
Chapter 11 of the United States Bankruptcy Code (the “Chapter 11 Cases”), was heard this day
by judicial videoconference via Zoom at Toronto, Ontario due to the COVID-19 crisis.
ON READING the Notice of Motion, the affidavit of Mr. Stephen Marotta affirmed
October 11, 2020, and the second report of Alvarez & Marsal Canada Inc., in its capacity as
information officer (the “Information Officer”), dated October ⚫, 2020, filed,
AND UPON HEARING the submissions of counsel for the Foreign Representative, the
Information Officer, SPARC Group LLC, and those other parties present, no one else appearing
although duly served as appears from the affidavit of service of Lipi Mishra sworn October 11,
2020:
SERVICE
1. THIS COURT ORDERS that the time for service of the Notice of Motion and the
Motion Record is hereby abridged and validated so that this Motion is properly returnable today
and hereby dispenses with further service thereof.
DEFINITIONS
2. THIS COURT ORDERS that capitalized terms used and not otherwise defined herein
have the meaning given to them in the Supplemental Order (Foreign Main Proceeding) made in
these proceedings on September 14, 2020.
RECOGNITION OF FOREIGN ORDER
3. THIS COURT ORDERS that the following order of the U.S. Bankruptcy Court made in
the Chapter 11 Cases is hereby recognized and given full force and effect in all provinces and
territories of Canada pursuant to section 49 of the CCAA:
(a) Third Order (I) Authorizing Debtors to (A) Reject Certain Unexpired Leases of
Nonresidential Real Property and (B) Abandon Property in Connection Therewith
and (II) Granting Related Relief (the “Lease Rejection Order”, a copy of which
is attached as Schedule “A” hereto);
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provided, however, that in the event of any conflict between the terms of the Lease Rejection
Order and the Orders of this Court made in the within proceedings, the Orders of this Court shall
govern with respect to Property in Canada.
GENERAL
4. THIS COURT HEREBY REQUESTS the aid and recognition of any court, tribunal,
regulatory or administrative body having jurisdiction in Canada or in the United States of
America, to give effect to this Order and to assist the Chapter 11 Debtors, the Foreign
Representative, the Information Officer, and their respective counsel and agents in carrying out
the terms of this Order. All courts, tribunals, regulatory and administrative bodies are hereby
respectfully requested to make such orders and to provide such assistance to the Chapter 11
Debtors, the Foreign Representative and the Information Officer, the latter as an officer of this
Court, as may be necessary or desirable to give effect to this Order, or to assist the Chapter 11
Debtors, the Foreign Representative, the Information Officer, and their respective counsel and
agents in carrying out the terms of this Order.
5. THIS COURT ORDERS that each of the Chapter 11 Debtors, the Foreign
Representative and the Information Officer be at liberty and is hereby authorized and empowered
to apply to any court, tribunal, regulatory or administrative body, wherever located, for the
recognition of this Order and for assistance in carrying out the terms of this Order.
6. THIS COURT ORDERS that this Order shall be effective as of 12:01 a.m. Eastern
Standard Time on the date of this Order.
26
SCHEDULE “A”
LEASE REJECTION ORDER
27
RLF1 24101239v.1
UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE
------------------------------------------------------------ x : In re : Chapter 11 : BROOKS BROTHERS GROUP, INC., et al., : Case No. 20–11785 (CSS) : Debtors.1 : (Jointly Administered) : ------------------------------------------------------------ x Re: D.I. 604
THIRD ORDER (I) AUTHORIZING DEBTORS TO (A) REJECT CERTAIN UNEXPIRED LEASES OF
NONRESIDENTIAL REAL PROPERTY AND (B) ABANDON PROPERTY IN CONNECTION THEREWITH AND (II) GRANTING RELATED RELIEF
Pursuant to and in accordance with the Order (I) Approving Procedures for
Rejecting Unexpired Leases of Nonresidential Real Property and (II) Granting Related Relief
[Docket No. 337] (the “Rejection Procedures Order”)2 and the Order Extending to Brooks
Brothers Canada Ltd. Certain Relief Granted to the Original Debtors [Docket No. 602] entered
in the above-captioned chapter 11 cases of Brooks Brothers Group, Inc. and its debtor affiliates
(collectively, the “Debtors”); and the Debtors having properly filed with this Court and served on
the Rejection Notice Parties a notice (the “Rejection Notice”) of their intent to reject certain
unexpired leases identified on Annex 1 hereto (“Leases”) in accordance with the terms of the
Rejection Procedures Order, and such notice having been adequate and appropriate under the
1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, as applicable, are Brooks Brothers Group, Inc. (8883); Brooks Brothers Far East Limited (N/A); BBD Holding 1, LLC (N/A), BBD Holding 2, LLC (N/A), BBDI, LLC (N/A), Brooks Brothers International, LLC (N/A); Brooks Brothers Restaurant, LLC (3846); Deconic Group LLC (0969); Golden Fleece Manufacturing Group, LLC (5649); RBA Wholesale, LLC (0986); Retail Brand Alliance Gift Card Services, LLC (1916); and Retail Brand Alliance of Puerto Rico, Inc. (2147); 696 White Plains Road, LLC (7265); and Brooks Brothers Canada Ltd. (4709). The Debtors’ corporate headquarters and service address is 100 Phoenix Avenue, Enfield, CT 06082.
2 Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Rejection Procedures Order.
Case 20-11785-CSS Doc 649 Filed 10/08/20 Page 1 of 428
RLF1 24101239V.1 2
circumstances; and it appearing that no other or further notice need be provided; and no timely
objections having been filed to the Rejection Notices; and the Court having found and determined
that the relief requested is in the best interests of the Debtors, their estates, their creditors, and all
parties in interest, and after due deliberation and sufficient cause appearing therefor,
IT IS HEREBY ORDERED THAT
1. The Leases are hereby rejected as set forth herein, effective as of (i) the later
of (a) the date of service of the Rejection Notice, and (b) 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 delivering such keys and
codes, providing notice that the landlord may re-let the premises or (ii) the date otherwise agreed
by the Debtors and the applicable lease counterparty (the “Rejection Date”); provided that the
Rejection Date shall be no later than 30 days after the date of service of the Rejection Notice unless
otherwise agreed by the Debtors and the applicable lease counterparty.
2. Notwithstanding the effective Rejection Date, the Debtors will pay 30 days
of rent for the customary Canadian 30-day notice period following the date of service of the
Rejection Notice.
3. Any and all property, including De Minimis Assets, remaining at the leased
premises as of the applicable Rejection Date shall be deemed abandoned upon the Rejection Date
without further notice or order of the Court, free and clear of all liens, claims, interests, or other
encumbrances. Any landlord or other designee shall be free to use or dispose of any such items
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 stay is modified or lifted, as applicable, to
allow such disposition; provided that notwithstanding anything to the contrary in this Order, the
Case 20-11785-CSS Doc 649 Filed 10/08/20 Page 2 of 429
RLF1 24101239V.1 3
Debtors are not authorized hereunder to abandon, and are directed to remove, any hazardous (as
such term is defined in federal, state, or local law, rule, regulation, or ordinance) materials at any
premises subject to a nonresidential real property lease or sublease. The right of any landlord, if
any, to file a claim for the costs of disposal of such property is fully reserved, as is the right of all
parties in interest to object to such claim.
4. Nothing contained in this Order is intended to be or shall be construed as (i)
an admission as to the validity of any claim against the Debtors; (ii) a waiver of the Debtors’ or
any appropriate party in interest’s rights to dispute the amount of, basis for, or validity of any claim
against the Debtors; or (iii) a waiver of any claims or causes of action that may exist against any
creditor or interest holder.
5. Nothing in this Order authorizes the Debtors to abandon personal
identifying information (which means information which alone or in conjunction with other
information identifies an individual, including but not limited to an individual’s first name (or
initial) and last name, physical address, electronic address, telephone number, social security
number, date of birth, government-issued identification number, account number and credit or
debit card number (the “PII”) of any employee or any customer. Nothing in this Order relieves
the Debtors’ of their obligation to comply with state, provincial or federal privacy and/or identity
theft prevention laws and rules with respect to PII. Prior to abandonment of any personal property,
the Debtors shall remove or cause to be removed any confidential and/or PII in any of the Debtors’
hardware, software, computers, cash registers, or similar equipment which are to be abandoned or
otherwise disposed of so as to render the PII unreadable or undecipherable.
6. Notwithstanding entry of this Order, nothing herein shall create, nor is
intended to create, any rights in favor of or enhance the status of any claim held by, any party.
Case 20-11785-CSS Doc 649 Filed 10/08/20 Page 3 of 430
RLF1 24101239V.1 4
7. The Debtors are authorized to take all action necessary to effectuate the
relief granted in this Order.
8. Any proofs of claim for rejection damagers or other related claims, if any,
asserted by counterparties to the Leases shall be filed on or before the later of (i) the applicable
claims bar date established by the Court in these chapter 11 cases, if any, and (ii) thirty (30) days
after entry of this Order.
9. Notwithstanding the applicability of any Bankruptcy Rule or Local Rule,
this Order shall be immediately effective upon the entry hereof.
10. The Court shall retain jurisdiction to hear and determine all matters arising
from or related to the implementation, interpretation, and/or enforcement of this Order.
Dated: October 8th, 2020 Wilmington, Delaware
CHRISTOPHER S. SONTCHI UNITED STATES BANKRUPTCY JUDGE
Case 20-11785-CSS Doc 649 Filed 10/08/20 Page 4 of 431
RLF1 24101239v.1
Annex 1
List of Rejected Leases
LOCATION ID NO.
COUNTERPARTY-LANDLORD AND
ADDRESS DEBTOR PROPERTY ADDRESS
ABANDONED PROPERTY
(IF ANY)
6301
475189 British Columbia Ltd. c/o Warrington PCI
Management 1700-1030 West Georgia
Street Vancouver, BC V6E 2Y3
Brooks Brothers
Canada Ltd.
1026 ALBERNI STREET VANCOUVER , BC
V6E 1A3
Miscellaneous Store Furniture, Fixtures, and Equipment
6302
Oxford Properties Group INC c/o Royal Bank Plaza
200 Bay Street Suite 1305 South Tower
Attn: Property Manager Toronto, ON M5J 2J1
Brooks Brothers
Canada Ltd.
200 BAY STREET STE UR1-P.0.B0X 20
TORONTO , ON M5J 2J1
Miscellaneous Store Furniture, Fixtures, and Equipment
6303
CEC Leaseholds, Inc. c/o Cushman & Wakefield
Asset Services, Inc. 333 7th Avenue S. W. Suite
900 Calgary, AB T2P 2Z1
Brooks Brothers
Canada Ltd.
751 3RD STREET, SW BOX 25
CALGARY , AB T2P 4K8
Miscellaneous Store Furniture, Fixtures, and Equipment
6306 bcIMC Realty Corp.
2940 Jutland Road, Suite 300 Victoria, BC V8T 5K2
Brooks Brothers
Canada Ltd.
2901 BAYVIEW AVENUE UNIT 2
TORONTO , ON M2K 1E6
Miscellaneous Store Furniture, Fixtures, and Equipment
6308
110 Bloor Street West, Inc. c/o Cushman & Wakefield
Asset Services, Inc One Queen Street East, Suite
300 Toronto, ON M5C 2W5
Brooks Brothers
Canada Ltd.
110 BLOOR STREET WEST
TORONTO , ON M5S 2W7
Miscellaneous Store Furniture, Fixtures, and Equipment
6401
CrossIron Mills Holdings, Inc.
c/o Ivanhoe Cambridge, Inc. 95 Wellington Street West,
Suite 300 Toronto, ON M5J 2R2
Brooks Brothers
Canada Ltd.
261055 CROSSIRON BLVD.
SPACE 176 ROCKY VIEW , AB
T4A 0G3
Miscellaneous Store Furniture, Fixtures, and Equipment
6403
RioCan Management INC 700 Lawrence Avenue West
Suite 315 Toronto, ON M6A 3B4
Brooks Brothers
Canada Ltd.
8555 CAMPEAU DRIVE UNIT #300
OTTAWA , ON K2T 0K5
Miscellaneous Store Furniture, Fixtures, and Equipment
Case 20-11785-CSS Doc 649-1 Filed 10/08/20 Page 1 of 232
RLF1 24101239V.1 2
6404
Simon Property Group 225 West Washington Street
Attn: Premium Outlets Indianapolis, IN 46204-3438
Brooks Brothers
Canada Ltd.
13850 STEELES AVE WEST
SUITE 712 HALTON HILLS , ON
L7G 0J1
Miscellaneous Store Furniture, Fixtures, and Equipment
6405
The Outlet Collection (Niagara) Limited
95 Wellington Street West, Suite 300
Attn: Legal Dept. Toronto, ON M5J 2R2
Brooks Brothers
Canada Ltd.
300 TAYLOR ROAD STE 301
NIAGARA ON THE LAKE , ON
L0S 1J0
Miscellaneous Store Furniture, Fixtures, and Equipment
6406
Ivanhoe Cambridge II Inc 95 Wellington Street West
Suite 300 Attn: Legal Affairs
Toronto, ON M5J 2R2
Brooks Brothers
Canada Ltd.
1 BASS PRO MILLS DRIVE
SPACE 100A VAUGHAN , ON
L4K 5W4
Miscellaneous Store Furniture, Fixtures, and Equipment
6407
Templeton DOC Limited Partnership
c/o McArthur Glen Designer Outlet Vancouver
7899 Templeton Road Richmond, BC V7B 1Y7
Brooks Brothers
Canada Ltd.
1047-7899 TEMPLETON STATION RD (UNIT 1047)
RICHMOND , BC V7B0B7
Miscellaneous Store Furniture, Fixtures, and Equipment
6408
Ivanhoe Cambridge Inc. 95 Wellington Street West,
Suite 300 Toronto, ON M5J 2R2
Brooks Brothers
Canada Ltd.
5000 CANOE PASS WAY SPACE 180
TSAWWASSEN , BC V4M0B3
Miscellaneous Store Furniture, Fixtures, and Equipment
Case 20-11785-CSS Doc 649-1 Filed 10/08/20 Page 2 of 233
IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED Court File No: CV-20-00647463-00CL
AND IN THE MATTER OF BROOKS BROTHERS GROUP, INC., BROOKS BROTHERS FAR EAST LIMITED, BBD HOLDING 1, LLC, BBD HOLDING 2, LLC, BBDI, LLC, BROOKS BROTHERS INTERNATIONAL, LLC, BROOKS BROTHERS RESTAURANT, LLC, DECONIC GROUP LLC, GOLDEN FLEECE MANUFACTURING GROUP, LLC, RBA WHOLESALE, LLC, RETAIL BRAND ALLIANCE GIFT CARD SERVICES, LLC, RETAIL BRAND ALLIANCE OF PUERTO RICO, INC., 696 WHITE PLAINS ROAD, LLC, AND BROOKS BROTHERS CANADA LTD. APPLICATION OF BROOKS BROTHERS GROUP, INC. UNDER SECTION 46 OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED
Applicant
Ontario SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST Proceeding commenced at Toronto
RECOGNITION ORDER
(LEASE REJECTION ORDER)
OSLER, HOSKIN & HARCOURT, LLP P.O. Box 50, 1 First Canadian Place Toronto, ON M5X 1B8 Tracy Sandler (LSO# 32443N) Tel: 416.862.5890 tsandler@osler.com Shawn Irving (LSO# 50035U) Tel: 416.862.4733 sirving@osler.com Martino Calvaruso (LSO# 57359Q) Tel: 416.862.6665 mcalvaruso@osler.com Fax: 416.862.6666 Lawyers for the Applicant
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Tab 3
35
Court File No. CV-20-00647463-00CL
ONTARIO SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED
AND IN THE MATTER OF BROOKS BROTHERS GROUP, INC., BROOKS BROTHERS FAR EAST LIMITED, BBD HOLDING 1, LLC, BBD HOLDING 2, LLC, BBDI, LLC, BROOKS BROTHERS INTERNATIONAL, LLC, BROOKS
BROTHERS RESTAURANT, LLC, DECONIC GROUP LLC, GOLDEN FLEECE MANUFACTURING GROUP, LLC, RBA WHOLESALE, LLC,
RETAIL BRAND ALLIANCE GIFT CARD SERVICES, LLC, RETAIL BRAND ALLIANCE OF PUERTO RICO, INC., 696 WHITE PLAINS ROAD, LLC, AND
BROOKS BROTHERS CANADA LTD.
APPLICATION OF BROOKS BROTHERS GROUP, INC. UNDER SECTION 46 OF THE COMPANIES’ CREDITORS ARRANGEMENT
ACT, R.S.C. 1985, c. C-36, AS AMENDED
Applicant
THIRD AFFIDAVIT OF STEPHEN MAROTTA
I, Stephen Marotta, of Little Silver, New Jersey, United States of America,
MAKE OATH AND SAY:
1. I am a Senior Managing Director at Ankura Consulting Group, LLC (“Ankura”)
and concurrently serve as the Chief Restructuring Officer (“CRO”) of Brooks Brothers
Group, Inc. (“BBGI”) and 131 of its affiliated debtors in possession (collectively, the
1 In addition to BBGI and Brooks Brothers Canada, the other 12 Chapter 11 Debtors are Brooks Brothers
Far East Limited; BBD Holding 1, LLC; BBD Holding 2, LLC; BBDI, LLC; Brooks Brothers International, LLC; Brooks Brothers Restaurant, LLC; Deconic Group LLC; Golden Fleece
36
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“Chapter 11 Debtors” and together with their non-debtor affiliates, “BB Group”),
including Brooks Brothers Canada Ltd. (“Brooks Brothers Canada”), all of which have
filed voluntary petitions for relief pursuant to Chapter 11 of the U.S. Bankruptcy Code
with the United States Bankruptcy Court for the District of Delaware (the “U.S. Court”).
The cases commenced by the Chapter 11 Debtors in the U.S. Court are referred to in this
Third Affidavit as the “Chapter 11 Cases”.
2. Ankura is a consulting firm that provides expert witness, bankruptcy and corporate
restructuring, litigation support, forensic accounting, geopolitical risk assessment, and
general management consulting services. I have more than 35 years of experience
providing professional accounting and consulting services to major corporations and
businesses, including 30 years of consulting to financially troubled companies, which
itself includes business plan development, viability assessments, reengineering and
overhead-reduction programs, claims and preference analyses, crisis management,
forensic investigation, and litigation support. My industry experience includes retail,
manufacturing, wholesale distribution, healthcare, telecommunications, entertainment,
and financial services.
3. In my role as CRO, I am familiar with the Chapter 11 Debtors’ businesses, day-
to-day operations, and financial affairs. As such, I have personal knowledge of the matters
deposed to herein. Where I have relied on other sources for information, I have so stated
Manufacturing Group, LLC; RBA Wholesale, LLC; Retail Brand Alliance Gift Card Services, LLC; Retail Brand Alliance of Puerto Rico, Inc.; and 696 White Plains Road, LLC.
37
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and I believe them to be true. In preparing this Third Affidavit, I have also consulted the
BB Group’s senior management team, and financial and legal advisors.
4. I swear this Third Affidavit in support of BBGI’s motion, in its capacity as foreign
representative (in such capacity, the “Foreign Representative”) of the Chapter 11
Debtors, for an order, inter alia:
(a) recognizing and giving effect to the Lease Rejection Order (as defined
below); and
(b) such further and other relief as counsel may request and this Honourable
Court may grant.
5. I previously swore an affidavit on September 13, 2020 in support of the Foreign
Representative’s application for the Initial Recognition Order (as defined below) and
Supplemental Order (as defined below). I also swore an affidavit on September 21, 2020
in support of the Foreign Representative’s motion for the Recognition, Approval and
Vesting Order (as defined below).
6. Capitalized terms used herein and not otherwise defined shall have the meaning
given to them in my first affidavit. A copy of my first affidavit, without exhibits, is
attached as Exhibit “A”. A copy of my second affidavit, without exhibits, is attached as
Exhibit “B”.
A. Background
7. On July 8, 2020 (the “Initial Petition Date”), each of the Chapter 11 Debtors other
than Brooks Brothers Canada (the “Initial Chapter 11 Debtors”) filed voluntary petitions
for relief pursuant to Chapter 11 of the U.S. Bankruptcy Code with the U.S. Court.
38
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8. At the time, Brooks Brothers Canada did not seek relief under Chapter 11 as the
BB Group was attempting to pursue an out-of-court restructuring for Brooks Brothers
Canada, potentially through the sale of the equity in Brooks Brothers Canada. The BB
Group wished to defer the costs associated with proceedings under Part IV of the
Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (the “CCAA”) until such
time as Canadian relief was in fact necessary.
9. Since the Initial Petition Date, the Initial Chapter 11 Debtors have obtained a
variety of orders from the U.S. Court and completed a successful marketing and sales
process for the BB Group’s (now former) business (“Brooks Brothers” 2 or the
“Business”), which resulted in the sale (the “Sale Transaction”) of substantially all of
the Chapter 11 Debtors’ assets, including substantially all of the assets of Brooks Brothers
Canada (the “Canadian Assets”), to SPARC Group LLC (the “Buyer”), for aggregate
proceeds totaling $325 million (subject to certain adjustments).
10. In addition, a global resolution was reached as between the Initial Chapter 11
Debtors and the Agent, the Prepetition ABL Lenders and the Creditors’ Committee (as
each is defined in my first affidavit). This resolution provided for, among other things, the
impairment and settlement of the Prepetition ABL Lenders’ claims for approximately
$205.8 million and for the remainder of the proceeds from the Sale Transaction to be
delivered to the Chapter 11 Debtors’ estates for an efficient administration and wind-down
of the Chapter 11 Cases.
2 For the avoidance of any doubt, the term Brooks Brothers refers to the business acquired by the Buyer,
and not any particular corporation.
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11. The U.S. Court entered an order approving the Sale Transaction on August 14,
2020 (the “Sale Order”), and the transaction closed on August 31, 2020, subject to the
subsequent conveyance of the Canadian Assets (described below).
12. Following the U.S. Court’s approval of the Sale Transaction, but before the Sale
Transaction had closed, the Chapter 11 Debtors and the Buyer determined that it would
be beneficial for Brooks Brothers Canada to obtain an order of the Ontario Superior Court
of Justice (Commercial List) (the “Canadian Court”) recognizing the Sale Order and
approving the sale of inventory owned by Brooks Brothers Canada free and clear of all
claims and encumbrances (other than certain permitted post-closing liens).
13. As such, on September 10, 2020, Brooks Brothers Canada filed a voluntary
petition for relief pursuant to Chapter 11 of the U.S. Bankruptcy Code with the U.S. Court.
14. On September 11, 2020, the U.S. Court entered an order authorizing BBGI to act
as foreign representative on behalf of the Chapter 11 Debtors in these CCAA proceedings
(the “Foreign Representative Order”). The U.S. Court also entered an order directing
the administration of Brooks Brothers Canada’s Chapter 11 Case jointly with the other
Chapter 11 Cases (the “Second Joint Administration Order”).
15. On September 14, 2020, the Canadian Court issued:
(a) an order (the “Initial Recognition Order”), among other things,
recognizing the Chapter 11 Cases as foreign main proceedings pursuant to
Part IV of the CCAA; and
(b) a supplemental order (the “Supplemental Order”), among other things:
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(i) recognizing the Foreign Representative Order and Second Joint
Administration Order;
(ii) appointing Alvarez & Marsal Canada Inc. as the information
officer in this proceeding;
(iii) granting the Administration Charge (as defined in the
Supplemental Order); and
(iv) granting the Directors’ Charge (as defined in the Supplemental
Order).
16. Attached as Exhibits “C”, “D” and “E” are copies of the Initial Recognition
Order, Supplemental Order and Justice Hainey’s September 14, 2020 endorsement.
17. On September 18, 2020, the U.S. Court entered to obtain an order (the “‘All
Orders’ Order”) applying substantially all previous orders in the Chapter 11 Cases,
including the Sale Order and the Rejection Procedures Order (as defined below), to
Brooks Brothers Canada.
18. On September 25, 2020, the Canadian Court issued an order (the “Recognition,
Approval and Vesting Order”), among other things:
(a) recognizing and giving effect to the ‘All Orders’ Order;
(b) approving the sale of the Canadian Assets of the Chapter 11 Debtors, over
which the Canadian Court has jurisdiction, to the Buyer, vesting the
Canadian Assets in and to the Buyer free and clear of all claims and
encumbrances (other than certain permitted post-closing liens), and
authorizing the Chapter 11 Debtors to take such steps and execute such
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additional documents as may be necessary or desirable for the completion
of the sale of the Canadian Assets to the Buyer; and
(c) authorizing and directing the Chapter 11 Debtors to maintain account
balances in the Chapter 11 Debtors’ Canadian bank accounts, which
account balances shall, in aggregate, be no less than the aggregate amount
of the Administration Charge and the Directors’ Charge.
19. A copy of the Recognition, Approval and Vesting Order is attached as
Exhibit “F”.
20. The Chapter 11 Debtors and the Buyer are working together to close the sale
transaction for the Canadian Assets as quickly as possible.
B. Lease Rejection Notice and Lease Rejection Order
21. On August 7, 2020, the U.S. Court entered an order (the “Rejection Procedures
Order”) authorizing the implementation of procedures for rejecting unexpired leases (the
“Rejection Procedures”). Pursuant to the Rejection Procedures Order, the Chapter 11
Debtors may reject leases (and abandon personal property located at such leased
premises), subject to complying with the Rejection Procedures, which require the Chapter
11 Debtors to file with the U.S. Court and serve on affected counterparties (and others) a
rejection notice in a prescribed form.
22. On September 19, 2020, in accordance with the Rejection Procedures Order, the
Chapter 11 Debtors filed a notice of rejection (the “Lease Rejection Notice”) in respect
of all 12 of Brooks Brothers Canada’s unexpired leases. The Lease Rejection Notice
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provides for the payment of rent for the customary Canadian 30-day notice period. That
same day, Prime Clerk published the Lease Rejection Notice on the case website and
commenced service on Brooks Brothers Canada’s landlords via first-class mail. As a
courtesy, Canadian counsel for the Chapter 11 Debtors also emailed the Canadian
landlords’ counsel on September 20, 2020 to advise of the Lease Rejection Notice. A copy
of the Lease Rejection Notice is attached as Exhibit “G”.
23. Also on September 19, 2020, the Chapter 11 Debtors filed a notice of designation
of rejected contract (the “Remco Rejection Notice”) in respect of Brooks Brothers
Canada’s contract with Remco. The Remco Rejection Notice provides the customary
Canadian 30-day notice. A copy of the Remco Rejection Notice is attached as Exhibit
“H”.
24. As no objections were filed in respect of the Lease Rejection Notice by the
deadline of October 5, 2020 at 4:00 p.m. (prevailing Eastern Time), on October 8, 2020,
the U.S. Court entered an order (the “Lease Rejection Order”), among other things:
(a) deeming each of Brooks Brothers Canada’s leases to be rejected as of
(i) the later of
(A) the date of service of the Lease Rejection Notice (being September 19, 2020), or
(B) the date of unequivocal surrender (the “Rejection Date”), or
(ii) the date otherwise agreed between the Chapter 11 Debtors and the applicable landlord,
provided that the Rejection Date shall be no later than 30 days after the
date of service of the Lease Rejection Notice (being October 19, 2020),
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unless otherwise agreed between the Chapter 11 Debtors and the
applicable landlord;
(b) requiring the Chapter 11 Debtors to pay 30 days of rent for the customary
Canadian 30-day notice period following the date of service of the
Rejection Notice; and
(c) deeming as abandoned, free and clear of all claims and encumbrances, any
property remaining at the leased premises as of the applicable Rejection
Date.
25. A copy of the Lease Rejection Order is attached as Exhibit “I”.
26. I understand that the Buyer’s licensee in Canada has entered into new lease
agreements in respect of several of the Canadian store locations.
27. No objections were filed in respect of the Remco Rejection Notice prior to the
deadline of September 28, 2020 at 4:00 p.m. (Eastern Time). As such, Brooks Brothers
Canada’s contract with Remco is deemed rejected as of October 19, 2020.3
C. Supplemental Bar Date and proposed next hearing
28. On August 11, 2020, the U.S. Court entered an order (the “Bar Date Order”)
establishing, among other things, a general bar date, a governmental bar date, an amended
schedules bar date, and a rejection damages bar date for filing claims against the Initial
3 The Remco Rejection Notice was filed pursuant to the designation rights procedures under the Sale
Order, which provide that if no objections are filed before the applicable deadline, the rejection becomes effective without further order of the U.S. Court.
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Chapter 11 Debtors, and approving the forms and manner of notice thereof. A copy of the
Bar Date Order is attached as Exhibit “J”.
29. On August 24, 2020, the Initial Chapter 11 Debtors filed a notice (the “Original
Bar Date Notice”) establishing the following deadlines, among others, for filing proofs
of claims for prepetition claims against the Initial Chapter 11 Debtors:
(a) September 25, 2020 at 5:00 p.m. (Eastern Time) as the general bar date;
and
(b) January 4, 2021 at 5:00 p.m. (Eastern Time) as the governmental bar date.
30. The ‘All Orders’ Order did not extend the Bar Date Order to Brooks Brothers
Canada and the claims bar dates established under the Bar Date Order and Original Bar
Date Notice do not apply to Brooks Brothers Canada’s creditors. As of the date of this
Third Affidavit, the Chapter 11 Debtors have not yet obtained an order from the U.S.
Court establishing claims bar dates for Brooks Brothers Canada’s creditors (the
“Supplemental Bar Date Order”) but intend to file a motion in the coming days. The
Foreign Representative intends to return to the Canadian Court to seek recognition of the
Supplemental Bar Date Order, once it has been entered.
45
THIS IS EXHIBIT “A” REFERRED TO IN THE
THIRD AFFIDAVIT OF STEPHEN MAROTTA,
SWORN BEFORE ME over videoconference in accordance with
the Administering Oath or Declaration Remotely Regulation,
O. Reg. 431/20, on October 11, 2020, while I was located in the
City of Toronto, in the Province of Ontario, and the affiant was
located in the City of Little Silver, in the State of New Jersey, in
the United States of America,
THIS 11th DAY OF OCTOBER, 2020.
____________________________________________
LIPI MISHRA Commissioner for Taking Affidavits
47
Court File No. ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED
AND IN THE MATTER OF BROOKS BROTHERS GROUP, INC., BROOKS BROTHERS FAR EAST LIMITED, BBD HOLDING 1, LLC, BBD HOLDING 2, LLC, BBDI, LLC, BROOKS BROTHERS INTERNATIONAL, LLC, BROOKS
BROTHERS RESTAURANT, LLC, DECONIC GROUP LLC, GOLDEN FLEECE MANUFACTURING GROUP, LLC, RBA WHOLESALE, LLC,
RETAIL BRAND ALLIANCE GIFT CARD SERVICES, LLC, RETAIL BRAND ALLIANCE OF PUERTO RICO, INC., 696 WHITE PLAINS ROAD, LLC, AND
BROOKS BROTHERS CANADA LTD.
APPLICATION OF BROOKS BROTHERS GROUP, INC. UNDER SECTION 46 OF THE COMPANIES’ CREDITORS ARRANGEMENT
ACT, R.S.C. 1985, c. C-36, AS AMENDED
Applicant
AFFIDAVIT OF STEPHEN MAROTTA
I, Stephen Marotta, of Little Silver, New Jersey, United States of America,
MAKE OATH AND SAY:
1. I am a Senior Managing Director at Ankura Consulting Group, LLC (“Ankura”)
and concurrently serve as the Chief Restructuring Officer (“CRO”) of Brooks Brothers
Group, Inc. (“BBGI”) and 131 of its affiliated debtors in possession (collectively, the
1 In addition to BBGI and Brooks Brothers Canada, the other 12 Chapter 11 Debtors are Brooks Brothers Far East Limited; BBD Holding 1, LLC; BBD Holding 2, LLC; BBDI, LLC; Brooks Brothers International, LLC; Brooks Brothers Restaurant, LLC; Deconic Group LLC; Golden Fleece Manufacturing Group, LLC; RBA Wholesale, LLC; Retail Brand Alliance Gift Card Services, LLC; Retail Brand Alliance of Puerto Rico, Inc.; and 696 White Plains Road, LLC.
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“Chapter 11 Debtors” and together with their non-debtor affiliates, “BB Group”),
including Brooks Brothers Canada Ltd. (“Brooks Brothers Canada”), all of which have
filed voluntary petitions for relief pursuant to Chapter 11 of the U.S. Bankruptcy Code
with the United States Bankruptcy Court for the District of Delaware (the “U.S. Court”).
The cases commenced by the Chapter 11 Debtors in the U.S. Court are referred to in this
Affidavit as the “Chapter 11 Cases”.
2. Ankura is a consulting firm that provides expert witness, bankruptcy and corporate
restructuring, litigation support, forensic accounting, geopolitical risk assessment, and
general management consulting services. I have more than 35 years of experience
providing professional accounting and consulting services to major corporations and
businesses, including 30 years of consulting to financially troubled companies, which
itself includes business plan development, viability assessments, reengineering and
overhead-reduction programs, claims and preference analyses, crisis management,
forensic investigation, and litigation support. My industry experience includes retail,
manufacturing, wholesale distribution, healthcare, telecommunications, entertainment,
and financial services.
3. In my role as CRO, I am familiar with the Chapter 11 Debtors’ businesses, day-
to-day operations, and financial affairs. As such, I have personal knowledge of the matters
deposed to herein. Where I have relied on other sources for information, I have so stated
and I believe them to be true. In preparing this affidavit, I have also consulted the BB
Group’s senior management team, and financial and legal advisors.
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4. I swear this Affidavit in support of BBGI’s application, in its capacity as foreign
representative (in such capacity, the “Foreign Representative”) of the Chapter 11
Debtors, for inter alia:
(a) recognition of the Chapter 11 Cases as foreign main proceedings pursuant
to Part IV of the Companies’ Creditors Arrangement Act, RSC 1985, c C-
36 (the “CCAA”);
(b) recognition of the Foreign Representative Order (as defined below) and
Second Joint Administration Order (as defined below);
(c) the appointment of Alvarez & Marsal Canada Inc. (“A&M”) as the
information officer in this proceeding (the “Information Officer”);
(d) the granting of the Administration Charge (as defined below); and
(e) the granting of the Directors’ Charge (as defined below).
5. All references to monetary amounts in this affidavit are in U.S. dollars unless
noted otherwise. Capitalized terms in this Affidavit that are not otherwise defined have
the meanings given to them in the Initial First Day Declaration.
6. This affidavit is organized into the following sections:
A. Background ........................................................................................................... 5 B. The BB Group prior to the Sale Transaction......................................................... 9
(a) Overview of Brooks Brothers ....................................................................... 9 (b) The Chapter 11 Debtors .............................................................................. 10 (c) The Non-Debtor Affiliates .......................................................................... 11
C. The BB Group after the close of the Sale Transaction ........................................ 12
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D. Brooks Brothers Canada...................................................................................... 12 (a) Brooks Brothers Canada’s retail stores and leases ...................................... 13 (b) Merchandising and sourcing ....................................................................... 14 (c) Corporate and support services ................................................................... 14 (d) Intellectual Property .................................................................................... 15 (e) Employees ................................................................................................... 15 (f) Logistics Suppliers .......................................................................................... 17 (g) Banking and Cash Management .................................................................. 18
E. Brooks Brothers Canada’s current position ........................................................ 19 (a) Financial Position ........................................................................................ 19
(i) Assets .......................................................................................................... 20 (ii) Liabilities ................................................................................................. 20 (iii) Stockholder’s Equity ............................................................................... 21 (iv) Earnings ................................................................................................... 21 (v) Secured Debt of Brooks Brothers Canada............................................... 21
(b) Gift Cards .................................................................................................... 24 F. Restructuring efforts prior to Initial Petition Date .............................................. 24
(a) Before COVID-19 ....................................................................................... 24 (b) Response to COVID-19 .............................................................................. 25
G. Chapter 11 Cases and Marketing Process ........................................................... 27 (a) Petitions and First Day Motions .................................................................. 27 (b) Marketing Process ....................................................................................... 29
H. Anticipated path forward for Brooks Brothers Canada ....................................... 37 I. Need for Relief Under the CCAA ....................................................................... 38 J. Relief Sought ....................................................................................................... 39
(a) Recognition of Foreign Proceedings ........................................................... 39 (b) Recognition of the Foreign Representative Order and Second JointAdministration Order .............................................................................................. 40 (c) Stay of Proceedings ..................................................................................... 40 (d) Appointment of Information Officer ........................................................... 40 (e) Administration Charge ................................................................................ 41 (f) Directors’ Charge ............................................................................................ 41
K. Notice .................................................................................................................. 43 L. Proposed next hearing ......................................................................................... 43 M. General ............................................................................................................ 43
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A. Background
7. Brooks Brothers (as defined below) is the oldest apparel business in the United
States and has grown into one of the world’s leading clothing retailers with over 1,400
locations in over 45 countries and a leading e-commerce platform. Brooks Brothers
Canada operates the BB Group’s Canadian operations, which consists of 12 retail stores.
8. On July 8, 2020 (the “Initial Petition Date”), each of the Chapter 11 Debtors other
than Brooks Brothers Canada (the “Initial Chapter 11 Debtors”) filed voluntary petitions
for relief (the “Initial Petitions”) pursuant to Chapter 11 of the U.S. Bankruptcy Code
with the U.S. Court.
9. At the time, Brooks Brothers Canada did not file a petition for relief under Chapter
11 with the U.S. Court as the BB Group was attempting to pursue an out-of-court
restructuring for Brooks Brothers Canada, potentially through the sale of the equity in
Brooks Brothers Canada. In connection therewith, the BB Group’s senior Prepetition ABL
Lenders (as defined below) agreed to forbear from taking any enforcement actions against
Brooks Brothers Canada resulting from the Initial Petitions and other pre- and post-Initial
Petition events of default, to allow such efforts to be pursued. The BB Group wished to
defer the costs associated with CCAA proceedings until such time as Canadian relief was
in fact necessary.
10. Since the Initial Petition Date, the Initial Chapter 11 Debtors have obtained a
variety of first day and final orders from the U.S. Court and, most notably, have completed
a successful sales and marketing process for the BB Group’s (now former) business
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(“Brooks Brothers” 2 or the “Business”), which resulted in the sale (the “Sale
Transaction”) of substantially all of the Chapter 11 Debtors’ assets (the “Acquired
Assets”), including substantially all of the assets of, but not the equity in, Brooks Brothers
Canada (the “Canadian Assets”), to SPARC Group LLC (the “Buyer”) for aggregate
proceeds totaling $325 million.
11. In addition, a global resolution was reached as between the Initial Chapter 11
Debtors, the Agent (as defined below), the Prepetition ABL Lenders and the official
committee of unsecured creditors in the Chapter 11 Cases (the “Creditors’ Committee”).
This resolution provided for, among other things, the impairment and settlement of the
Prepetition ABL Lenders’ claims for approximately $205.8 million and for the remainder
of the proceeds from the Sale Transaction to be delivered to the Chapter 11 Debtors’
estates for an efficient administration and wind-down of the Chapter 11 Cases.
12. The U.S. Court entered an order approving the Sale Transaction on August 14,
2020 (the “Sale Order”), and the transaction closed on August 31, 2020. Accordingly,
the Buyer now owns the Business, subject to the Buyer’s designation rights in respect of
leases (including Brooks Brothers Canada’s leases, none of which have been designated
for assumption and assignment or rejection to date) and the subsequent conveyance of the
Canadian Assets, including the Canadian Acquired Inventory (as defined below),
described below.
2 For the avoidance of any doubt, the term Brooks Brothers refers to the business acquired by the Buyer, and not any particular corporation.
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13. Following the U.S. Court’s approval of the Sale Transaction, but before the Sale
Transaction had closed, the Chapter 11 Debtors and the Buyer determined that it would
be beneficial for Brooks Brothers Canada to obtain an order of this Court recognizing the
Sale Order and approving the sale of inventory owned by Brooks Brothers Canada (the
“Canadian Acquired Inventory”) free and clear of all claims and encumbrances.
14. As such, and to facilitate this process, an agreement was reached with the Buyer
to amend the Asset Purchase Agreement (as defined below) to specifically address the
process for the acquisition of the Canadian Acquired Inventory (the “Second
Amendment to the Asset Purchase Agreement”). In addition, BBGI, on behalf of itself,
the other Chapter 11 Debtors and the other Sellers, and the Agent entered into a Stipulation
(as defined below) wherein it was confirmed that the Agent would still retain (rather than
release) the Prepetition ABL Lenders’ liens and claims against Brooks Brothers Canada,
on behalf of and solely for the benefit of the Chapter 11 Debtors, and would turn over any
proceeds of the Canadian Acquired Inventory received by the Agent to BBGI.
15. In furtherance of the above, on September 10, 2020, Brooks Brothers Canada filed
a voluntary petition for relief pursuant to Chapter 11 of the U.S. Bankruptcy Code with
the U.S. Court (the “September Petition”, and collectively with the Initial Petitions the
“Petitions”). On the same day, the Chapter 11 Debtors filed a motion to obtain an order
to apply all previous orders in the Chapter 11 Cases, including the Sale Order, to Brooks
Brothers Canada (the “‘All Orders’ Order”). The motion to approve the ‘All Orders’
Order is scheduled to be heard by the U.S. Court on September 24, 2020.
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16. On September 11, 2020, the U.S. Court entered an order authorizing BBGI to act
as foreign representative on behalf of the Chapter 11 Debtors in these CCAA proceedings
(the “Foreign Representative Order”). The U.S. Court also entered an order directing
the administration of Brooks Brothers Canada’s Chapter 11 Case jointly with the other
Chapter 11 Cases (the “Second Joint Administration Order”).
17. The Foreign Representative now brings this application to obtain a stay of
proceedings, recognition of the Chapter 11 Cases as a foreign main proceeding and
recognition of the Foreign Representative Order and Second Joint Administration Order
in Canada. The Foreign Representative intends to return to this Court to seek recognition
of the ‘All Orders’ Order after it has been entered by the U.S. Court and for such other
relief from this Court as may be deemed necessary.
18. In support of the Initial First Day Motions (as defined below), I submitted a
declaration to the U.S. Court, a copy of which is attached as Exhibit “A” (the “Initial
First Day Declaration”). The Initial First Day Declaration provides a comprehensive
overview of the BB Group and the events leading up to the commencement of the Chapter
11 Cases. As such, this Affidavit provides a more general overview and focuses on the
events since the Initial Petition Date, including in relation to the sales and marketing
process that culminated in the Sale Transaction, Brooks Brothers Canada’s business, and
information to support the finding of the centre of main interest of each of the Chapter 11
Debtors and to support the request for recognition of the Chapter 11 Cases as a foreign
main proceeding, the recognition of the Foreign Representative Order and Second Joint
Administration Order, the granting of the stay, the granting of the Administration Charge
and the Directors’ Charge, and the appointment of the Information Officer.
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19. I am not aware of any other foreign recognition insolvency proceedings involving
the Chapter 11 Debtors.
20. I am advised by the Chapter 11 Debtors’ U.S. counsel and believe that due to the
COVID-19 pandemic, the U.S. Court is only processing requests for certified copies of
orders one day per week. The Foreign Representative will obtain certified copies of the
Petitions and the Foreign Representative Order and Second Joint Administration Order as
soon as it is able this coming week and then immediately forward them to Osler, Hoskin
& Harcourt LLP (“Osler”), Canadian counsel to the Chapter 11 Debtors. The certified
copies will be provided to this Court as soon as possible upon arrival.
21. In the interim, copies of the Foreign Representative Order and Second Joint
Administration Order are attached as Exhibits “B” and “C”.
B. The BB Group prior to the Sale Transaction
(a) Overview of Brooks Brothers
22. Prior to the Sale Transaction, the BB Group owned Brooks Brothers, the oldest
apparel business in the United States and a world-renowned fashion innovator. The BB
Group acquired Brooks Brothers in 2001, after which Brooks Brothers expanded across
the globe and grew into one of the world’s leading clothing retailers with over 1,400
locations in over 45 countries, and a leading e-commerce platform built on best-in-class
systems and supporting a direct-to-consumer website (www.brooksbrothers.com) and
mobile application. Brooks Brothers is known as a lifestyle brand for men, women and
children, which markets and sells footwear, eyewear, bags, jewelry, bedding, linens and
more.
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http://www.brooksbrothers.com/
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23. For the fiscal year ending 2019, the BB Group’s revenue totaled over $991 million,
of which less than 3% was attributable to Brooks Brothers Canada.
(b) The Chapter 11 Debtors
24. All of the Chapter 11 Debtors (including Brooks Brothers Canada) operate on an
integrated basis and are incorporated or established under the laws of the United States,
with the exception of Brooks Brothers Canada and Brooks Brothers Far East Limited
(“BB Far East”), which is incorporated in Hong Kong.
25. BBGI directly or indirectly owns all of the shares of the other Chapter 11 Debtors
(including Brooks Brothers Canada), with the exception of BB Far East, in which BBGI
holds a 99.8% interest. A copy of the BB Group’s organization chart (as at the Initial
Petition Date) is included as Exhibit A to the Initial First Day Declaration, which is
attached hereto as Exhibit “A”.
26. Prior to the Sale Transaction, the Chapter 11 Debtors’ operations were directed
out of the BB Group’s (now former) headquarters at 346 Madison Avenue in Manhattan,
where the flagship Brooks Brothers store is located. The Chapter 11 Debtors also owned
an office building located in Enfield, Connecticut that houses certain of the Business’s
corporate functions, including finance, human resources, IT, and real estate. The Chapter
11 Debtors also maintained two distribution centres to process merchandise and
warehouse inventory and to support the Chapter 11 Debtors’ stores in the United States,
Canada, and Puerto Rico, including a 660,000 square foot distribution centre facility in
Enfield, Connecticut, and a 250,000 square foot distribution centre facility in Clinton,
North Carolina.
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27. Prior to the Sale Transaction, all of the Chapter 11 Debtors’ (including Brooks
Brothers Cana