Case Doc 690 Filed 04/03/19 Page 1 of 6 IN THE UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF NORTH CAROLINA DURHAM DIVISION

Transcription

1 SO ORDERED. Case Doc 690 Filed 04/03/19 Page 1 of 6 SIGNED this 2nd day of April, IN THE UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF NORTH CAROLINA DURHAM DIVISION In re: ) Chapter 11 ) Advanced Sports Enterprises, Inc., et al., 1 ) ) Case No ) (Jointly Administered) ) Debtors. ) ) ORDER AUTHORIZING DEBTORS TO REJECT CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED LEASES THIS MATTER comes before the Court upon the Fifth Omnibus Motion to Authorize the Debtors to Reject Certain Executory Contracts and Unexpired Leases (Dkt. No. 634) (the Motion ) filed by the Debtors seeking authority to reject certain executory contracts and unexpired leases as set forth in Exhibit A attached. Notice of the Motion (Dkt. No. 640) was issued on March 14, 2019 with a deadline of March 30, 2019 within which to file objections. No objections having been filed, and after considering the matters set forth in the Motion and the official file, the Court hereby makes the following findings: 1 The Debtors in this case, along with each Debtor s case number, are: (i) Advanced Sports Enterprises, Inc., Case No ; (ii) Advanced Sports, Inc., Case No ; (iii) Performance Direct, Inc., Case No ; (iv) Bitech, Inc., Case No ; and (v) Nashbar Direct, Inc., Case No

2 Case Doc 690 Filed 04/03/19 Page 2 of 6 1. This Court has jurisdiction to consider this Motion pursuant to 28 U.S.C Consideration of this Motion is a core proceeding pursuant to 28 U.S.C. 157(b). Venue of this proceeding is proper before this Court pursuant to 28 U.S.C and The predicates for the relief requested herein are sections 365 and 1107 of title 11 of the United States Code, 11 U.S.C. 101, et seq. (the Bankruptcy Code ), and Rule 6006 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ). 3. On November 16, 2018 (the Petition Date ), each of the Debtors filed a voluntary petition with the Court under Chapter 11 of the Bankruptcy Code. 4. The Debtors have continued in possession of their properties and have continued to manage their businesses as debtors-in-possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. 5. On November 21, 2018, the Court entered an order in each Debtors case jointly administering the Debtors cases under a single docket. 6. An Official Unsecured Creditors Committee was appointed on November 27, On February 6, 2019, the Court entered an order (Doc. 505, the Sale Order ) approving the sale of certain assets of the Debtors to BikeCo, LLC ( BikeCo ), Amain.com, Inc. ( AMain ) and K&B Investment Corporation ( K&B and collectively, the Buyers ). Closings on the sales occurred on February 8, 2019 (the Closing Date ). 8. The Debtors have identified certain executory contracts and unexpired leases that are no longer necessary in connection with the operation of their businesses and were not designated as contracts to be assumed and assigned to the Buyers (the Contracts ).

3 Case Doc 690 Filed 04/03/19 Page 3 of 6 9. The Contracts are not providing any benefit to the Debtors estate and the Debtors request this Court s authority to reject each of the Contracts effective March 13, Exhibit A attached hereto contains an alphabetical listing by Debtor of the parties and the corresponding contracts and leases to be rejected, in compliance with Fed. R. Bankr. 6006(f). 11. Sections 365(a) and 1107 of the Bankruptcy Code authorize a debtor-in-possession to reject any executory contract or unexpired lease, subject to bankruptcy court approval. 12. Although section 365(a) does not provide a standard for determining when rejection is appropriate, bankruptcy courts have traditionally applied the business judgment standard in determining whether to permit the rejection of an executory contract or unexpired lease. See NLRB v. Bildisco & Bildisco, 465 U.S. 513, 523 (1984); Lubrizol Enterprises., Inc., v. Richmond Metal Finishers (In re Richmond Metal Finishers, Inc.), 756 F. 2d 1043, (4 th Cir. 1985), cert. denied, 475 U.S (1986); In re Minges, 602 F. 2d 38, 42 (2d Cir. 1979). The decision to reject a lease or executory contract is to be accepted unless it is shown that the debtor s decision was one taken in bad faith or in gross abuse of the debtor s retained business discretion. Lubrizol Enterprises, Inc. v. Richmond Metal Finishers, supra. 13. The contracts sought to be rejected in the Motion include maintenance, trash removal, software, and service agreements that are not necessary in connection with the Debtors operations. Therefore, the Debtors have satisfied the business judgment standard in seeking rejection of these Contracts. Based upon the foregoing findings, the Court concludes that the Motion should be granted and for good and sufficient reasons appearing, it is hereby ORDERED as follows:

4 Case Doc 690 Filed 04/03/19 Page 4 of 6 1. The Motion is granted as set forth herein. 2. The Debtors are authorized to reject, pursuant to 11 U.S.C. 365, the executory contracts and unexpired leases identified in Exhibit A attached hereto, effective March 13, 2019; and 3. The Debtors are directed to serve copies of this Order on the Master Service List as well as the parties listed on Exhibit A attached hereto and shall file a certificate of service with the Court. [END OF DOCUMENT]

5 Case Doc 690 Filed 04/03/19 Page 5 of 6 EXHIBIT A

6 Case Doc 690 Filed 04/03/19 Page 6 of 6 DebtorName Line Name of other parties with whom the debtor has an executory contract or unexpired lease Address 1 Address 2 City State Zip State what the contract or lease is for and the nature Country of the debtor's interest Bitech, Inc. Aptos Canada Inc Trans Canada Hwy Suite 300 Saint-Laurent QC H4S 1K5 Canada Retail POS software maintenance agreement Bitech, Inc. Epicor Retail Solutions Corporation 2800 Trans-Canada Hwy Pointe Claire QC H9R 1B1 Canada Retail POS hardware depot support Performance Direct, Inc. Globant, LLC 875 Howard Street Suite 320 San Francisco CA IBM Spectrum Protect SW subscriptions & support Advanced Sports Enterprises, Inc. Hendrickson Mechanical Services, Inc. PO Box Raleigh NC HVAC maintenance contract Chapel Hill offices Performance Direct, Inc. IBM Corporation PO Box Atlanta GA Performance Direct, Inc. IBM Corporation PO Box Atlanta GA Web Service (Commerce On Cloud) Performance Direct, Inc. Atlassian PTY LTD Collections Center Drive Chicago IL IT Project Tracking System (Jira) Performance Direct, Inc. Silverpop Systems, Inc., an IBM Company 200 Galleria Parkway Suite 1000 Atlanta GA Platform for s to customers Performance Direct, Inc. Muzak, LLC dba Mood Media 2100 S IH 35 Frontage Road Suite 200 Austin TX Music Services for Stores Performance Direct, Inc. Tableau Software, Inc. PO Box Dallas TX Reporting Performance Direct, Inc. Unicom Systems, Inc San Fernando Mission Blvd Mission Hills CA Change Mgmt software Advanced Sports Enterprises, Inc Universal Atlantic Systems, Inc. 45 West Industrial Blvd Paoli PA Store alarm system monitoring (multiple stores) Bitech, Inc. Waste Management of Arizona PO Box Los Angeles CA Trash Removal - Stores Bitech, Inc. Waste Management of Denver PO Box Arizona CA Trash Removal - Stores Bitech, Inc. Waste Management of Northern Colorado PO Box Arizona CA Trash Removal - Stores Performance Direct, Inc. WorksRight Software, Inc. 211 Waterford Square PO Box 1156 Madison MS Per Zip - Zipcode Software