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AFDOCS/22419864.3

George P. Angelich Jordana L. Renert ARENT FOX LLP 1301 Avenue of the Americas, Floor 42 New York, NY 10019 Telephone: (212) 484-3900 Facsimile: (212) 484-3990 Email: [email protected]

[email protected] and Justin A. Kesselman (Pro Hac Vice) ARENT FOX LLP The Prudential Tower 800 Boylston Street, 32nd Floor Boston, MA 02199 Telephone: (617) 973-6102 Facsimile: (617) 722-4993 Email: [email protected] Counsel for the Official Committee of Unsecured Creditors UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------x

In re: DEAN & DELUCA NEW YORK, INC., et al.,

Debtors.1

: : : : : :

Chapter 11

Case No. 20-10916 (MEW) Jointly Administered

------------------------------------------------------------x

MOTION OF OFFICIAL COMMITTEE OF UNSECURED CREDITORS TO EXTEND

DEADLINE TO CHALLENGE CLAIMS AND LIENS OF SIAM COMMERCIAL BANK

1 The Debtors in the Chapter 11 Cases and the last four digits of each Debtor’s taxpayer identification number are as follows: Dean & DeLuca New York, Inc. (3111); Dean & DeLuca, Inc. (2998); Dean & DeLuca Brands, Inc. (2878); Dean & DeLuca International, LLC (8995); Dean & DeLuca Small Format, LLC (1806); Dean & DeLuca Atlanta, LLC (6678); Dean & DeLuca Markets, LLC (2674) (together, the “Debtors”). The registered address for the Debtors is 251 Little Falls Drive, Wilmington, DE 19808.

20-10916-mew Doc 161 Filed 07/09/20 Entered 07/09/20 16:05:27 Main Document Pg 1 of 12

2 AFDOCS/22419864.3

The Official Committee of Unsecured Creditors (the “Committee”) of Dean & DeLuca

New York Inc., et. al. and its affiliated debtors (collectively, the “Debtors”) in the above-captioned

Chapter 11 cases (the “Chapter 11 Cases”) by and through its undersigned counsel, hereby submits

this Motion (the “Motion”) for entry of an order, substantially in the form attached hereto as

Exhibit A (the “Proposed Order”), extending the Challenge Deadline2 established in the Final

Order Pursuant To 11 U.S.C. §§ 105, 361, 362, 363, 364, and 507, Bankruptcy Rules 2002, 4001,

6004, and 9014, and Local Rule 4001-2 (I) Authorizing the Debtors to Obtain Post-Petition

Financing, (II) Granting Liens And Providing Super-Priority Administrative Expense Status, (III)

Granting Adequate Protection, and (IV) Granting Related Relief [Doc. 77] (the “Final DIP

Order”). In support of this expedited Motion, the Committee states as follows:

PRELIMNARY STATEMENT

1. On April 29, 2020, the Committee requested information from the Debtors about

payments to and from Siam Commercial Bank (“SCB”). As of today, 72 days later – less than one

month from the August 1 deadline to challenge SCB’s alleged $45 million loans and all-asset liens

under the Final DIP Order – the Committee has not received this basic information. The

Committee filed its Rule 2004 Motion (defined below) on May 29, 2020, and after lengthy

negotiations with the parties from whom discovery is sought, including SCB, and two court

hearings, the Court entered the Rule 2004 Order (defined below) on June 26, 2020. On June 29th,

the Committee sent Rule 2004 subpoenas for documents and depositions to the Debtors, SCB, and

other parties. SCB responded by indicating that the Committee should have to wait until it has

had a chance to review all document productions before scheduling a deposition. But the

2 Capitalized terms not defined herein shall have the meaning ascribed to them in the Final DIP Order.


3 AFDOCS/22419864.3

Committee has not received a single new document from the Debtors, SCB, Pace, Emerald,

or Techakraisri since the Rule 2004 hearing on June 22nd.3 The Committee cannot evaluate –

let alone prosecute – a challenge or claim against SCB without the discovery requested by the

Committee and authorized by this Court.

2. In light of the delays in document productions and SCB’s efforts to defer its

deposition, it has become clear that the Committee will be unable to complete or even make

significant progress in its investigation into SCB’s claims and liens (and potential causes of action

against SCB) by the August 1st Challenge Deadline. As such, the Committee requested a

conference with SCB regarding extending the Challenge Deadline. SCB has not agreed to an

extension or even a discussion about an extension. Accordingly, pursuant to the Final DIP Order,

¶ 10, the Committee respectfully requests that the Court extend the Challenge Deadline to

September 30, 2020. In light of SCB’s substantial claims and liens, the broad release SCB is slated

to receive as of August 1, 2020, and the continuing delays in discovery regarding SCB, the

Committee respectfully submits that good cause exists to extend the Challenge Deadline as

requested herein.

RELEVANT BACKGROUND

3. On March 31, 2020 (the “Petition Date”), the Debtors filed voluntary petitions for

relief under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the

Southern District of New York (the “Court”). The cases are subject to joint administration under

Case No. 20-10916 (MEW) pursuant to the Court’s Order dated April 1, 2020 [Doc. 10].

4. The Office of the United States Trustee for Region 2 appointed the Committee on

April 23, 2020 [Doc. 34]. The Committee is comprised of four members: Laura Lendrum (co-

3 Finch provided a two-page statement on July 9th shortly before the filing of this Motion.


4 AFDOCS/22419864.3

chair), Meade Digital Enterprises Corp. d/b/a FultonFishMarket.com (co-chair), 33 Ninth Retail

Owner LLC, and The Brooklyn Biscuit Company.

5. Just days before the Petition Date, the Debtors purported to grant extensive liens to

SCB securing a $750,000 loan to fund professional fee retainers. [See Doc. 35, p. 59]. The secured

loan documents provided that the Debtors would enter into a DIP financing facility with SCB after

the Petition Date. The secured loan funds were earmarked for professional fees and thereby

ensured the Debtors would be unable to meet even their minimal operational needs, thereby

creating an “emergency” that would merit interim approval of a DIP loan from SCB.

6. The Committee objected to the Debtors’ request for interim approval of the DIP

loan from SCB and the Court declined to grant such interim approval. [Doc. 46]. Following the

interim DIP hearing, the Committee engaged in negotiations with the Debtors and SCB to

substantially revise the DIP facility. On May 13, 2020, the Court entered the Final DIP Order.

The Final DIP Order established a Challenge Deadline of August 1, 2020, for the Committee to

object to or otherwise challenge SCB’s prepetition claims and liens, unless extended by (a) the

agreement of SCB, or (b) this Court for good cause shown.

7. Absent a challenge, SCB’s $45 million alleged claim will, as a practical matter, be

allowed in full and all causes of action will be released under the Final DIP Order, ¶ 11. Indeed,

the Debtors’ Proposed Joint Chapter 11 Plan of Reorganization (“Plan”) [Doc. 126], of which SCB

is a Plan Proponent Party, contemplates this exact result. See Plan, pp. 2, 4, 7, 18.

8. Since April 29, 2020, the Committee has requested copies of documents necessary

to investigate, among other things, whether SCB’s prepetition claims and liens are valid and

whether the estate holds causes of action against SCB. Despite numerous requests, the Debtors

failed to produce the requested and necessary documents informally.


5 AFDOCS/22419864.3

9. In light of the upcoming Challenge Deadline and unsatisfactory document

productions by the Debtors in response to informal requests, on May 29, 2020, the Committee filed

its Motion for an Order Pursuant to Sections 105(a) and 1103(c) of the Bankruptcy Code and

Rules 2004 and 9016 Authorizing and Directing Subpoenas for the Production of Documents and

Examinations of (I) the Debtors; (II) Pace Development Corporation PLC and Pace Food Retail

Co., Ltd; (III) Sorapoj Techakraisri; (IV) Siam Commercial Bank; (V) Emerald Capital Advisors;

(VI) Charles Finch; and (VII) Other Entities Reasonably Likely to Have Relevant Information

(“Rule 2004 Motion”) [Doc. 105] seeking access to the information necessary for the Committee

to perform its investigation into, among other things, the liens and claims of SCB.

10. The Rule 2004 Motion was met with continued resistance by the Debtors and SCB

(as well as other Rule 2004 Parties) to making fulsome, voluntary, and timely productions of

documents. Following an initial hearing on the Rule 2004 Motion, the Committee engaged in

substantive discussions with counsel for the Debtors, SCB, and other Rules 2004 Parties. These

parties provided assurances regarding the scope of document productions and depositions.

11. Assurances notwithstanding, SCB served the Committee with a formal discovery

response identifying the document productions and deposition topics to which it (a) agreed, or (b)

objected. A true and accurate copy of SCB’s response is attached hereto as Exhibit B.4

12. On June 22, 2020, the Court held a continued hearing on the Rule 2004 Motion and

inquired of Committee counsel regarding the remaining areas in dispute with the various Rule

2004 Parties. The Court resolved those remaining disputes through an extensive colloquy with

counsel for the Committee and the participating Rule 2004 Parties.

4 Similarly, Pace and Techakraisri filed an (untimely) response to the Rule 2004 Motion in which they identified the specific document requests and topics to which they objected. See Response of Pace Development Corporation PLC, Pace Food Retail Co., Ltd and Sorapoj Techakraisri In Opposition to Rule 2004 Motion, p. 8 [Doc. 142].


6 AFDOCS/22419864.3

13. Following the continued hearing, counsel for the Committee circulated a proposed

Rule 2004 Order containing what counsel believed to contain (a) the discovery agreed-to in

advance of the hearing; and (b) the discovery agreed-to or otherwise ordered at the hearing.

14. After the hearing, SCB changed course by promptly reneging on certain document

requests and deposition topics to which it previously agreed.5 Compare Exhibit B (SCB pre-

hearing position), with Order on Official Committee of Unsecured Creditors’ Rule 2004 Motion

for Discovery (“Rule 2004 Order”) [Doc. 156], Schedules 3-4 (SCB post-hearing position).

Further, the 2004 Parties made new demands that the Committee attempt to squeeze the Rule 2004

topics and any Plan-related topics into a single deposition each of the Debtors, SCB and Pace.

15. Given the rapidly approaching August 1 Challenge Deadline (as well as the outside

deadline of September 30 for maturation of the DIP Facility), the Committee was forced to make

concessions in the interest of getting documents and information quickly, without prejudice to

seeking further relief form the Court if necessary.

16. On Friday, June 26, 2020, the Committee submitted – and the Court entered – the

Rule 2004 Order agreed to by the Rule 2004 Parties. See Rule 2004 Order.

17. On Monday, July 29, 2020, the Committee sent subpoenas, revised in accordance

with the Rule 2004 Order, to the Rule 2004 Parties for documents and depositions.

18. SCB responded by indicating it was premature to schedule a deposition and that the

Committee should wait until receiving the productions of each Rule 2004 Party before

determining whether a deposition would be necessary. A true and correct copy of the email

exchange is attached hereto as Exhibit C, p. 2.

5 Pace and Techakraisri took a similar tact, refusing to submit to discovery to which they had raised no objection prior to the hearing, including objecting to producing Techakraisri for a deposition at all.


7 AFDOCS/22419864.3

19. The Debtors have not produced any further documentation or other information in

response to the subpoenas or the Rule 2004 Order. The Debtors have not provided the Committee

with any information on the results of the email search they were ordered to perform. Indeed, the

Debtors have not produced a single document since the June 22nd hearing.

20. Likewise, the other 2004 Parties—including SCB—6have produced any further

documents in response to the subpoenas or the Rule 2004 Order. SCB has informed the Committee

that it is working on “responding” to the Committee’s document request—but SCB has produced

no further documents since providing prepetition loan documents on June 18th.7

21. In light of the continued delays in producing documents, the Committee requested

a conference with SCB to discuss extending the Challenge Deadline. Counsel for SCB responded

that it would “get back to [the Committee] after [they] have had a chance to speak with [SCB].”

See Exhibit C, p.1. As of the filing of this Motion, SCB has not agreed to extend the Challenge

Deadline or even agreed to discuss extending the Challenge Deadline with Committee.

22. In light of the ongoing delays to document productions and depositions, and the

rapidly approaching Challenge Deadline, the Committee believes there is good and sufficient cause

for an extension to September 30, 2020, so that the Committee may complete its investigation and

determine whether further pleadings before the Court are necessary.

6 As noted above, Finch provided some information shortly before the filing of this Motion.

7 Likewise, Pace has not, for example, provided any information concerning its bankruptcy proceeding in Thailand. Instead, the Committee continues to be left to the limited information available from media reports and summary public filings, such as the fact that SCB is apparently providing new funding to Pace during its bankruptcy case (https://www.bangkokpost.com/business/1936016/scb-touts-resilience-against-higher-npls), notwithstanding Pace’s suspension from trading on the Stock Exchange of Thailand (https://www.set.or.th/set/newsdetails.do?newsIdz=15937334302280&language=en&country=US).


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VENUE AND JURISDICTION

23. Venue is proper in this district under 28 U.S.C. §§ 1408 and 1409. This matter is

a core proceeding under 28 U.S.C. § 157(b)(2)(A), (C), (D) and (O).

24. The statutory basis for the relief in this Motion includes sections 105(a) and 364

of the Bankruptcy Code, and Federal Rule of Bankruptcy Procedure 9006.

RELIEF REQUESTED

25. By this Motion, the Committee requests entry of an order, substantially in the form

attached as Exhibit A, extending the Challenge Deadline under the Final DIP Order to September

30, 2020, for good cause and without prejudice to further requests for extensions pursuant to the

Final DIP Order.

BASIS FOR RELIEF

26. Under the terms of the Final DIP Order, parties in interest, including the

Committee, may file a complaint or other pleading to object to or contest in any manner, or raise

any defenses to, the validity, perfection, priority, or enforceability of any obligations owing to

SCB or in liens in favor of SCB, or to assert any claims or causes of action against SCB of any

type, including, without limitation, any avoidance actions under chapter 5 of the Bankruptcy Code.

See Final DIP Order ¶ 9.

27. However, the Committee must assert such a challenge on or before August 1, 2020,

unless SCB agrees to an extension or the Court orders such an extension for good cause shown,

provided that, the filing of this Motion automatically extends the Challenge Deadline to five (5)

business days after the Court rules on the Committee’s extension request. Final DIP Order, ¶ 10.


9 AFDOCS/22419864.3

Despite the Committee’s request, SCB has not agreed to an extension of the Challenge Deadline.8

Good cause exists for the Court to extend the Challenge Deadline in light of the substantial delays

in document productions by the Debtors, SCB, and other 2004 Parties.

28. Substantial questions remain about characterization and allowance of SCB’s

prepetition claims. Indeed, the Debtors’ stipulation in the Final DIP Order to allowance of an

alleged unsecured claim in the amount of $45 million (which comprises approximately 14% of the

general unsecured claims pool according to the Debtors’ estimates).9 To date, the Committee has

not even been able to get a simple schedule showing the flow of funds to and from SCB on account

of SCB’s alleged loans to the Debtors.

29. Moreover, in addition to verifying the validity and extent of SCB’s claims and liens,

the Committee is investigating whether SCB received avoidable transfers (including preferences).

This includes investigation into whether SCB is an insider of the Debtors, which would expand

the preference period to one-year prepetition. See 11 U.S.C. § 547(b)(4). Further, the Committee

is entitled to investigate whether grounds exist to equitably subordinate SCB’s claims pursuant to

section 510(c) of the Bankruptcy Code, which may turn on the extent of the Debtors’ capitalization

and SCB’s involvement and level of control over the Debtors’ financial affairs. See In re Monahan

Ford Corp. of Flushing, 340 B.R. 1, 45 (Bankr. E.D.N.Y. 2006). The Committee cannot evaluate

these potential claims without the discovery it has sought and that the Court has authorized.

30. Despite the Committee’s requests for information necessary for its investigation

(both formally and informally) for more than 70 days, less than one month remains before the

8 The Committee reserves its rights to seek a further extension of the Challenge Deadline beyond any extended date the Court may provide pursuant to this motion. In addition, the DIP maturity date of September 30, 2020 will likewise present future issues absent agreement of the parties. 9 Further, in the event Pace’s $241 million claim is recharacterized as equity or subordinated, SCB’s claim could then comprise upwards of 64% of the general unsecured claims pool.


10 AFDOCS/22419864.3

Challenge Deadline is set to expire and the Committee’s investigation has been delayed by the

lack of documents from the Debtors and SCB and will likely face further delays due to the

expressed resistance of SCB to sitting for a deposition before the Committee receives all document

productions.

31. The Court is authorized to extend the Challenge Deadline under the Bankruptcy

Code, the Federal Rules of Bankruptcy Procedure, and the Final DIP Order. Section 105 of the

Bankruptcy Code authorizes the court to issue any order, process, or judgment that is necessary or

appropriate to carry out the provisions of the Bankruptcy Code. In re Calpine Corp., 365 B.R. 401,

409 (S.D.N.Y. 2007).

32. Additionally, the Court may extend the Challenge Deadline for cause shown under

Federal Rule of Bankruptcy Procedure 9006(b)(1), which provides that “when an act is required

or allowed to be done at or within a specified period by these rules or by a notice given thereunder

or by order of court, the court for cause shown may at any time in its discretion with or without

motion or notice order the period enlarged if the request therefor is made before the expiration of

the period originally prescribed or as extended by a previous order.” Fed. R. Bankr. P. 9006(b)(1).

33. The Committee respectfully submits that an extension of the Challenge Deadline is

in the best interest of unsecured creditors and the bankruptcy estates. SCB cannot be entitled to

the benefit of the stipulations and releases provided in the Final DIP Order without cooperating

with the Committee and allowing the Committee to complete discovery and determine whether

claims and causes of action exist against SCB. Such a result would be inequitable and contrary to

the rationale in approving the stipulations and shortened statute of limitations.


11 AFDOCS/22419864.3

NO PRIOR REQUEST

34. No prior request for the relief sought in this Motion has been made in this Court

or in any other court.

NOTICE

35. Notice of this Motion has been given to: (a) the Debtors and their counsel; (b) the

Office of United States Trustee for Region 2; (c) counsel to SCB; (d) any parties requesting service

of all motions and pleadings pursuant to Bankruptcy Rule 2002; and (e) all parties entitled to notice

pursuant to Local Bankruptcy Rule 9013-1(b). The Committee submits that, in light of the nature

of the relief requested herein, no other or further notice is necessary.

REQUEST FOR RELIEF

36. For the reasons set forth above, the Committee requests entry of an order,

substantially in the format attached as Exhibit A, extending the Challenge Deadline to September

30, 2020.

[Signature on following page]


12 AFDOCS/22419864.3

Dated: New York, New York July 9, 2020

ARENT FOX LLP By: /s/ Jackson D. Toof

George P. Angelich Jordana L. Renert 1301 Avenue of the Americas, Floor 42 New York, New York 10019 Telephone: (212) 484-3900 Facsimile: (212) 484-3990 Email: [email protected]

[email protected] Justin A. Kesselman (Pro Hac Vice) The Prudential Tower 800 Boylston Street, 32nd Floor Boston, MA 02199 Telephone: (617) 973-6102 Email: [email protected] -and- Jackson D. Toof 1717 K Street, N.W. Washington, D.C. 20006 Telephone: (202) 857-6000 Email: [email protected] Counsel for the Official Committee of Unsecured Creditors


AFDOCS/22419864.3

Exhibit A

20-10916-mew Doc 161-1 Filed 07/09/20 Entered 07/09/20 16:05:27 Exhibit A -Proposed Order Pg 1 of 3

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------x In re: DEAN & DELUCA NEW YORK, INC., et al.,

Debtors.1

: : : : : :

Chapter 11

Case No. 20-10916 (MEW) Jointly Administered

-------------------------------------------------------------x

ORDER ON OFFICIAL COMMITTEE OF UNSECURED CREDITORS’ RULE 2004 MOTION FOR DISCOVERY

Upon the Motion of the Official Committee of Unsecured Creditors (the “Committee”) to

Extend Deadline to Challenge Claims and Liens of Siam Commercial Bank (the “Motion”) for an

order extending the Challenge Deadline2 established in the Final Order Pursuant To 11 U.S.C.

§§ 105, 361, 362, 363, 364, and 507, Bankruptcy Rules 2002, 4001, 6004, and 9014, and Local

Rule 4001-2 (I) Authorizing the Debtors to Obtain Post-Petition Financing, (II) Granting Liens

And Providing Super-Priority Administrative Expense Status, (III) Granting Adequate

Protection, and (IV) Granting Related Relief [Doc. 77] (the “Final DIP Order”), to September

30, 2020; and the Court having jurisdiction to consider the Motion and relief requested therein in

accordance with 28 U.S.C. §§ 157 and 1334; and sufficient notice having been provided; and the

Court having found and determined that certain of the relief sought in the Motion is in the best

interest of creditors and the bankruptcy estates; and the legal and factual bases set forth in the

1 The Debtors in the Chapter 11 Cases and the last four digits of each Debtor’s taxpayer identification number are as follows: Dean & DeLuca New York, Inc. (3111); Dean & DeLuca, Inc. (2998); Dean & DeLuca Brands, Inc. (2878); Dean & DeLuca International, LLC (8995); Dean & DeLuca Small Format, LLC (1806); Dean & DeLuca Atlanta, LLC (6678); Dean & DeLuca Markets, LLC (2674) (together, the “Debtors”). The registered address for the Debtors is 251 Little Falls Drive, Wilmington, DE 19808. 2 Capitalized terms not defined herein shall have the meaning ascribed to them in the Final DIP Order.


Motion having established good cause for the relief granted herein; and after due deliberation

and sufficient cause appearing therefor,

IT IS HEREBY ORDERED THAT:

1. The relief requested in the Motion is GRANTED.

2. The Challenge Deadline under the Final DIP Order is hereby extended through

and including September 30, 2020 (the “Extended Challenge Deadline”).

3. In accordance with paragraph 10 of the Final DIP Order, the Committee shall

have standing to raise any Challenge against the DIP Lender or Siam Commercial Bank

(together, “SCB”), including but not limited to: objecting, contesting in any manner, or raising

any defenses to the claims or liens of SCB, and asserting any claims or causes of action against

SCB, on or before the Extended Challenge Deadline.

4. This Order is without prejudice to further extensions of the Extended Challenge

Deadline, whether by agreement of SCB or by further Order of this Court for good cause shown.

5. This Court retains jurisdiction to resolve all matters arising under or related to this

Order, and to interpret, implement, and enforce the provisions of this Order.

Dated: July ___, 2020 ____________________________________ The Honorable Michael E. Wiles UNITED STATES BANKRUPTCY JUDGE


AFDOCS/22419864.3

Exhibit B

20-10916-mew Doc 161-2 Filed 07/09/20 Entered 07/09/20 16:05:27 Exhibit B -SCB Objections and Responses Pg 1 of 13

CHAPMAN AND CUTLER LLP 1270 Avenue of the Americas New York, New York 10020 Telephone: (212) 655-6000 Facsimile: (212) 697-7210 Larry G. Halperin ([email protected]) Joon P. Hong ([email protected]) Attorneys for The Siam Commercial Bank Public Company Limited UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

-----------------------------------------------------------X

In re

DEAN & DELUCA NEW YORK, INC., et al.,

Debtors.1

: : : : :

Chapter 11

Case No. 20-10916 (MEW)

(Jointly Administered)

-----------------------------------------------------------X

THE SIAM COMMERCIAL BANK PUBLIC COMPANY LIMITED’S RESPONSES AND OBJECTIONS

TO SUBPOENA PROFFERED BY THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS

The Siam Commercial Bank Public Company Limited (“SCB”), by and through its

undersigned attorneys, responds and objects to the subpoena for documents and testimony

(the “Subpoena”) proffered by the Official Committee of Unsecured Creditors (the “Committee”)

in its pending motion pursuant to Rule of Bankruptcy Procedure 2004 (each document request a

“Request” and together the “Requests” and each deposition topic a “Topic” and together the

“Topics”) as follows:

1 The Debtors in the Chapter 11 Cases and the last four digits of each Debtor’s taxpayer identification number are as follows: Dean & Deluca New York, Inc. (3111); Dean & Deluca, Inc. (2998); Dean & Deluca Brands, Inc. (2878); Dean & Deluca International, LLC (8995); Dean & Deluca Small Format, LLC (1806); Dean & Deluca Atlanta, LLC (6678); and Dean & Deluca Markets, LLC (2674). The registered address for the Debtors is 251 Little Falls Drive, Wilmington, Delaware 19808.


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GENERAL OBJECTIONS

1. SCB objects to the purported response dates for document production and

testimony as grossly improper under Federal Rules of Civil Procedure 30(b)(6) and 45, which are

made applicable to this proceeding by Rules 7030 and 9014 of the Federal Rules of Bankruptcy

Procedure. The Subpoena purports to require SCB to produce documents in ten business days.

This is not reasonable and therefore violates Federal Rule of Civil Procedure 30(b)(1).

2. SCB objects to each Request and to each Topic that seeks documents or testimony

outside the Debtors’ financial affairs or claims that the Committee may have concerning the

Debtors as irrelevant and outside the proportional needs of the case.

3. SCB objects to each Request and to each Topic to the extent they call for the

production of documents, testimony, or disclosure of information protected by any privilege,

including without limitation, the attorney-client privilege, the work product doctrine or any other

available and valid grounds for withholding documents or information from production or

disclosure (collectively, “Privileged Material”).

4. SCB does not waive or intend to waive, but rather intends to preserve and preserves:

(a) all objections as to competency, relevance, materiality, and admissibility of any information or

document provided based upon a foundation, hearsay, relevancy, or any other applicable ground;

(b) all objections as to vagueness, ambiguity, or other infirmity; (c) all objections, on any ground,

to the use of any identified information or documents in any other proceeding; and (d) all

objections to any further discovery requests.

5. The inadvertent production of any information or documents that are protected

from disclosure shall not constitute a waiver of any applicable privilege, and SCB reserves its right

to withdraw or recall any documents or information inadvertently produced for any reason.

6. SCB expressly reserves the right to amend and supplement its objections and

responses to these Requests and Topics.


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7. The applicable foregoing General Objections are incorporated into each of the

specific responses and objections as follows. The stating of a specific response or objection shall

not be construed as a waiver of SCB’s General Objections.

RESPONSES AND OBJECTIONS TO DEPOSITION TOPICS

1. SCB’s acquisition of an ownership interest in Pace Development Corporation Plc. (“Pace Development”), and its actions in its capacity as an owner insofar as they relate to the business decisions or strategic direction of the Debtors.

RESPONSE: SCB objects that this Topic is overbroad and outside the proportional needs

of the case as it seeks testimony having nothing to do with the Debtors and is therefore beyond the

scope of discovery.

2. SCB’s loans to the Debtors, including any liens on collateral for such loans, repayment of such loans, and due diligence performed in making such loans.

RESPONSE: No objections. SCB reserves all rights to direct the time and manner of such

deposition testimony, including in-person or remote depositions.

3. SCB’s lending relationship with Pace concerning liens, if any, on collateral relating to the Debtors.



scope of discovery.

4. Transactions involving the Debtors, Sorapoj Techakraisri, Charles Finch, any other insider of the Debtors, or any of their respective affiliates or relatives, in which SCB was either a counter-party or had consent rights.



5. Any claim of SCB against the Debtors’ estates.




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6. The purpose, use, and expenditure of all funds loaned or otherwise distributed to or on behalf of the Debtors by SCB.

RESPONSE: SCB objects to this Topic as inappropriate for testimony from SCB. While

SCB intends to produce documents and provide testimony concerning “all funds loaned or

otherwise distributed to or on behalf of the Debtors to SCB,” SCB is not the appropriate party to

provide testimony on “the purpose, use, and expenditure” of those funds. That testimony is more

easily and efficiently sought from the Debtors themselves, and is therefore improper as a

deposition Topic to SCB.

7. Service by SCB employees on Pace Development’s Board of Directors, including the names of such employees, their roles at SCB, the circumstances by which they came to serve on Pace Development’s Board, the dates of such service, and any decisions made during such service relating to the Debtors.



scope of discovery. In addition, the names and roles of SCB employees on Pace Development’s

Board of Directors have already been identified and such information if publicly available.

8. Restructuring strategies relating to the Debtors (as well as for Pace insofar as they relate to the Debtors), including the funding of the Debtors’ bankruptcy cases and any communications about the Debtors’ restructuring with the Debtors, Pace, Emerald Capital Advisors, Argus, Brown Rudnick, or any other professional retained by the Debtors.

RESPONSE: SCB objects to this Topic as inappropriate for testimony from SCB. While

SCB intends to provide testimony concerning “the funding of the Debtors’ bankruptcy cases”, the

Topic is overbroad and outside the proportional needs of the case. SCB reserves all rights to direct

the time and manner of such deposition testimony, including in-person or remote depositions.

9. Any valuations or other analyses by or on behalf of SCB relating to the Debtors’ intellectual property and brand.




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10. SCB’s document retention policies.



11. All documents and communications identified on Schedule A to the Subpoena or that otherwise concern the above topics.

RESPONSE: No objections, however SCB objects to a number of documents listed on

Schedule A as outside the scope of discovery and therefore SCB’s testimony under this Topic will

be limited to documents actually produced either through agreement or Court order. SCB reserves

all rights to direct the time and manner of such deposition testimony, including in-person or remote

depositions.

12. Identity of all witnesses and persons with knowledge of the above topics.




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RESPONSES AND OBJECTIONS TO REQUESTS FOR PRODUCTION

1. Documents sufficient to identify the date, extent, and circumstances of SCB’s acquisition of an ownership interest in Pace Development Corporation Plc. (“Pace Development”) or any affiliate of Pace Development.

RESPONSE: SCB objects that the Subpoena does not permit sufficient time to identify,

locate, prepare, and produce these documents. Responding further, SCB objects that this Request

is overbroad and outside the proportional needs of the case as it seeks documents having nothing

to do with the Debtors and is therefore beyond the scope of discovery.

2. All documents and communications evidencing any action taken by SCB in its capacity as a shareholder of Pace Development reflecting an attempt to exercise control over or influence the business decisions of the Debtors.



is outside the proportional needs of the case. Additionally, the Request is vague and overbroad,

specifically in its use of the undefined terms and phrases “reflecting an attempt” and “business

decisions of the Debtors.” The burden of responding to such expansive discovery significantly

outweighs any probative value of these documents and therefore the Request is outside the

proportional needs of the case.

3. Documents sufficient to identify each SCB employee that has served on Pace Development’s Board of Directors, including the employee’s name, role at SCB, the circumstances by which they came to serve on Pace Development’s Board, the dates of such service, and any decisions concerning the Debtors made during such service.




to do with the Debtors and is therefore beyond the scope of discovery. In addition, the names and


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roles of SCB employees on Pace Development’s Board of Directors have already been identified

and such information if publicly available.

4. Documents sufficient to identify the outstanding balance and status of SCB’s loans to Pace Development or Pace Food Retail Co. Ltd. (“Pace Food”, and together with Pace Development, “Pace”), including any defaults on such loans, from September 2019 to the present.




to do with the Debtors and is therefore beyond the scope of discovery. Additionally, SCB states

that even if these documents were within the scope of discovery, they are more easily and

efficiently sought from the Debtors themselves and therefore the Request is improper under

proportionality and other principles of the Federal Rules of Civil Procedure.

5. Documents sufficient to identify the date, amount, and status of SCB’s loans to the Debtors, including any payments and defaults on such loans from 2018 to the present.

RESPONSE: Responsive documents will be produced in a reasonable time frame. SCB

objects that the Subpoena does not permit sufficient time to identify, locate, prepare, and produce

these documents.

6. All documents and communications concerning the grant, perfection, or foreclosure of any security interest in property of Pace in favor of SCB, which relates to the Debtors, including any pledges of stock in the Debtors.




to do with the Debtors and is therefore beyond the scope of discovery. Nevertheless, SCB

anticipates that it will produce documents that are likely partially responsive to this Request as

part of its document production under separate Requests in the Subpoena.


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7. All documents and communications concerning the grant, perfection, or foreclosure of any security interest in property of the Debtors in favor of SCB.


locate, prepare, and produce these documents. Nevertheless, SCB anticipates that it will produce

documents that are likely partially responsive to this Request as part of its document production

under separate Requests in the Subpoena.

8. All agreements which grant SCB rights (contingent or otherwise) to exercise control over the Debtors, to control the flow of funds to or from the Debtors, or to influence the business decisions of the Debtors.


locate, prepare, and produce these documents. Responding further, SCB objects to this Request

as both overbroad and vague, specifically in its use of the undefined phrase “business decisions.”

The burden of responding to such expansive discovery significantly outweighs any probative value

of these documents and therefore the Request is outside the proportional needs of the case. Finally,

SCB states that this information can be more easily and efficiently sought from the Debtors

themselves and is therefore improper as a Request for SCB under Federal Rules of Civil Procedure.

9. All agreements between SCB and the Debtors.



as overbroad in seeking all agreements rather than only those agreements that may be relevant or

have an effect on these proceedings. The burden of responding to such expansive discovery

significantly outweighs any probative value of these documents and therefore the Request is

outside the proportional needs of the case. Nevertheless, SCB anticipates that it will produce

documents that are likely partially responsive to this Request as part of its document production

under separate Requests in the Subpoena.

10. All agreements between SCB and Sorapoj Techakraisri, which the concern the Debtors.


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as overbroad and outside the proportional needs of the case. The burden of responding to such

expansive discovery significantly outweighs any probative value of these documents and therefore

the Request is outside the proportional needs of the case.

11. All guarantees of SCB’s loans to the Debtors.



these documents.

12. Documents sufficient to identify each payment made by or on behalf of the Debtors (including any direct payments of moneys owed to the Debtor by third parties such as royalties or franchise fees) to or for the benefit of SCB or any affiliate, employee, officer, director, or principal of SCB from 2016 to the present.



these documents.

13. Documents sufficient to identify each disbursement or other payment made by SCB to or for the benefit of the Debtors, including payments made to third parties at the direction or for the purported benefit of the Debtors.



as overbroad and outside the proportional needs of the case. The burden of responding to such

expansive discovery significantly outweighs any probative value of these documents and therefore

the Request is outside the proportional needs of the case.

14. Documents sufficient to identify each payment by SCB to or for the benefit of any affiliate, employee, officer, director, or principal of the Debtors (other than Pace) from 2014 to the present, including payments made directly to:

a. Sorapoj Techakraisri; and


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b. Charles Finch or his affiliates (including Finch + Partners, Finch & Partners Corporate Creative Ltd., Charles Finch Creative Ltd., and Grovepark International Ltd.).



as overbroad and outside the proportional needs of the case. Finally, the burden of responding to

such expansive discovery significantly outweighs any probative value of these documents and

therefore the Request is outside the proportional needs of the case.

15. All documents and communications between or among SCB, on the one hand, and any of the following persons or entities, on the other hand, concerning the restructuring of the Debtors, from 2018 to the present, including the funding and goals of the Debtors’ bankruptcy cases:

a. Debtors; b. Pace or its affiliates; c. Any financial advisor of the Debtors or Pace, including Argus and Emerald Capital

Advisors; d. Sorapoj Techakraisri; e. Charles Finch or his affiliates (including Finch + Partners, Finch & Partners

Corporate Creative Ltd., Charles Finch Creative Ltd., and Grovepark International Ltd.); and

f. Any other officer, director, or employee of the Debtors.


locate, prepare, and produce these documents. Responding further, SCB objects to subsections

(b)-(e) of this Request as overbroad and outside the proportional needs of the case. The burden of

responding to such expansive discovery significantly outweighs any probative value of the

documents called for in subsections (b)-(e) and therefore the majority of this Request is outside

the proportional needs of the case. Responsive documents to subsections (a) and (f) will be

produced in a reasonable time frame.

16. All documents and communications between or among SCB, on the one hand, and any of the following persons or entities, on the other hand, concerning the restructuring of Pace insofar as it relates to the Debtors, from 2018 to the present:

a. Debtors; b. Pace or its affiliates;


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c. Any financial advisor of the Debtors or Pace, including Argus and Emerald Capital Advisors;

d. Sorapoj Techakraisri; e. Charles Finch or his affiliates (including Finch + Partners, Finch & Partners

Corporate Creative Ltd., Charles Finch Creative Ltd., and Grovepark International Ltd.); and

f. Any other officer, director, or employee of the Debtors.




to do with the Debtors and is therefore beyond the scope of discovery.

17. All documents and communications evidencing attempts by SCB or any employee, officer, director, or principal of SCB, including Sarunthorn Chutima and Kittiya Todhanakasem, to direct or influence the Debtors’ expenditures, business decisions, or strategic direction from 2014 to the present.



is overbroad and vague, specifically in its use of the phrases “direct of influence the Debtors,”

“business decisions” and “strategic direction.” Additionally, the time frame for this Request, i.e.,

six years, is overbroad. Finally, the burden of responding to such expansive discovery significantly

outweighs any probative value of these documents and therefore the Request is outside the

proportional needs of the case.

18. All documents and communications concerning SCB’s alleged $45 million unsecured claim against the Debtors’ estates.



these documents.

19. All documents and communications concerning SCB’s alleged $750,000 secured claim against the Debtors’ estates.


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these documents.

20. All documents and communications concerning the Debtors’ intellectual property, including the value of such intellectual property and intellectual property transactions in which SCB played a role from 2016 to the present.



these documents.

21. All business plans for the Debtors submitted to or formulated by SCB.



is overbroad and vague, specifically in its use of the phrase “business plan.” Finally, the burden

of responding to such expansive discovery significantly outweighs any probative value of these

documents and therefore the Request is outside the proportional needs of the case.

Dated: New York, New York June 18, 2020 CHAPMAN AND CUTLER LLP By: /s/Joon P. Hong ________________ Larry G. Halperin

Joon P. Hong 1270 Avenue of the Americas New York, New York 10020 Telephone: (212) 655-6000 Facsimile: (212) 697-7210 [email protected] [email protected]

Attorneys for The Siam Commercial

Bank Public Company Limited


AFDOCS/22419864.3

Exhibit C

20-10916-mew Doc 161-3 Filed 07/09/20 Entered 07/09/20 16:05:27 Exhibit C -Email Chain Pg 1 of 5

1

From: Joon P. Hong <[email protected]>Sent: Wednesday, July 1, 2020 11:37 PMTo: Kesselman, Justin A.; [email protected]: Toof, Jackson; Angelich, George; Renert, Jordana; [email protected];

[email protected]: Re: Dean & Deluca New York Inc., No. 20-10916 (MEW) (SDNY Bankr.); Rule 2004

Subpoena

Justin,

We are waiting to hear back from SCB about the current status of their search for remaining documents that are responsive to the Committee’s document request. We are not looking for an indefinite pause, should depositions be needed, but we have already provide the Committee with the prepetition loan documents (both for the secured and unsecured loans) and as an initial matter, we first need to understand when our client will be able to provide the documents before we can talk about overall timing. We hope to hear back from SCB soon and will get back to after we have had a chance to speak with them.

Thanks.

Joon P. Hong | Partner Chapman and Cutler LLP 1270 Avenue of the Americas | New York, NY 10020 Direct: 212.655.2537 Fax: 212.655.2538 [email protected]

From: "Kesselman, Justin A." <[email protected]> Date: Wednesday, July 1, 2020 at 12:47 PM To: Joon Hong <[email protected]>, Larry Halperin <[email protected]> Cc: "[email protected]" <[email protected]>, "[email protected]" <[email protected]>, "[email protected]" <[email protected]>, "[email protected]" <[email protected]>, "[email protected]" <[email protected]> Subject: RE: Dean & Deluca New York Inc., No. 20‐10916 (MEW) (SDNY Bankr.); Rule 2004 Subpoena

**EXTERNAL SENDER**

Joon,

We appreciate that SCB is working on the document response, but we did not agree to an indefinite pause on depositions of third‐parties, particularly in light of the August 1 challenge deadline with respect to SCB.

In view of the substantial delays with productions and deposition scheduling, we need to discuss extending the challenge deadline.


2

We are amenable to discussing with you an adjustment to the case timeline. But it needs to factor in the Committee’s deadline.

Please let us know if this is acceptable.

Thank you,

Justin

Justin A. Kesselman Associate

Arent Fox LLP | Attorneys at Law The Prudential Tower 800 Boylston Street, 32nd Floor Boston, MA 02199 617.973.6102 DIRECT | 617.722.4993 FAX [email protected] | www.arentfox.com

From: Joon P. Hong <[email protected]> Sent: Tuesday, June 30, 2020 4:59 PM To: Kesselman, Justin A. <[email protected]>; [email protected] Cc: Toof, Jackson <[email protected]>; Angelich, George <[email protected]>; Renert, Jordana <[email protected]>; [email protected]; [email protected] Subject: Re: Dean & Deluca New York Inc., No. 20‐10916 (MEW) (SDNY Bankr.); Rule 2004 Subpoena

Justin,

SCB is working on responding to the document request, but we will need to speak to SCB about the deposition request. We thought the general arrangement that had been worked out between the Committee and the Debtors was for the Committee to first review documents that the various parties would produce, and then for the parties to determine whether follow‐up depositions would be needed of third parties. Has there been a change regarding this arrangement?

Thanks.

Joon P. Hong | Partner Chapman and Cutler LLP 1270 Avenue of the Americas | New York, NY 10020 Direct: 212.655.2537 Fax: 212.655.2538 [email protected]

From: "Kesselman, Justin A." <[email protected]> Date: Monday, June 29, 2020 at 8:53 PM To: Joon Hong <[email protected]>, Larry Halperin <[email protected]> Cc: "[email protected]" <[email protected]>, "[email protected]" <[email protected]>, "[email protected]" <[email protected]> Subject: Dean & Deluca New York Inc., No. 20‐10916 (MEW) (SDNY Bankr.); Rule 2004 Subpoena

**EXTERNAL SENDER**


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Gentlemen,

In connection with the above‐referenced case, please take notice that the Committee intends to issue the attached Rule 2004 to Siam Commercial Bank (SCB). We will work with SCB on scheduling if the deposition date provided proves unworkable, but please let us know as soon as possible regarding any scheduling concerns. Also, please let me know if you will accept service of the subpoena on behalf of SCB.

Thank you,

Justin

Justin A. Kesselman Associate

Arent Fox LLP | Attorneys at Law The Prudential Tower 800 Boylston Street, 32nd Floor Boston, MA 02199 617.973.6102 DIRECT | 617.722.4993 FAX [email protected] | www.arentfox.com

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Please consider the Environment before printing this email.

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NOTICE OF CONFIDENTIALITY: The information contained in this email transmission is confidential information which may contain information that is legally privileged and exempt from disclosure under applicable law. The information is intended solely for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or taking of any action in reliance on the contents of this email transmission is strictly prohibited. If you have received this email transmission in error, please notify us immediately by telephone to arrange for the return of the original transmission to us.

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