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Full title: Affidavit/Declaration in Support of First Day Motion Declaration of Daniel Strauss in Support of Chapter 11 Petition and First Day Pleadings Filed By Adara Enterprises Corp. (Gellert, Ronald) (Entered: 04/22/2021)
Document posted on Apr 21, 2021 in the bankruptcy, 27 pages and 0 tables.
Bankrupt11 Summary (Automatically Generated)
Accordingly, the Debtor defaulted on its financing and has filed for Chapter 11 to facilitate a restructuring that will enable its proposed new owners – the Debtor’s existing senior secured lender and its affiliate – to utilize the Debtor’s assets in new value-maximizing ways while repaying all of the Debtor’s creditors in full and providing a meaningful distribution to the Debtor’s parent and sole common equity holder, GlassBridge Enterprises Inc. (“GlassBridge”).To that end, Orix provided $13 million of debt financing (the “Orix Notes”) to the Debtor and acquired 20.1% of the Debtor’s common stock from GlassBridge. The RSA also contains certain plan sponsor protections which provide that if the Debtor invokes its fiduciary out or the Court approves an Alternative Transaction, then ESW Holdings shall be entitled to the immediate payment from the closing of the Alternative Transaction of a termination/break-up fee in the amount of three (3) percent of the $8,500,000 Plan Consideration, inclusive of any amount advanced to the Debtor under the DIP Facility.Establishing the first business date that is at least thirty days after service of the Bar Date Notice at 4:00 p.m. (ET) as the “General Bar Date” and deadline for all persons or entities, other than Governmental Units (as defined in section 101(27) of the Bankruptcy Code), to file proofs of claim (each, a “Proof of Claim”) based on claims against the Debtor that arose prior to the Petition Date, including claims for the value of goods sold to the Debtor in the ordinary course of business and received by the Debtor within twenty (20) days before the Petition Date that remain unpaid; and October 19, 2021 at 4:00 p.m. (ET) as the “Governmental Bar Date” and deadline for all Governmental Units to file Proofs of Claim against the Debtor based on claims against the Debtor that arose prior to the Petition Date that remain unpaid. 46. While the Debtor is currently unaware of any outstanding prepetition Reimbursable Expense Obligations, to avoid harming Employees who incurred the Reimbursable Expense Obligations, the Debtor requests authority, but not direction, to satisfy all prepetition Reimbursable Expense Obligations to the extent Employees have paid for such expenses directly from their own funds or are otherwise personally liable for such expenses.
List of Tables
Document ContentsIN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: Chapter 11 ADARA ENTERPRISES CORP.,1 Case No. 21-10736 Debtor. DECLARATION OF DANIEL STRAUSS IN SUPPORT OF CHAPTER 11 PETITION AND FIRST DAY PLEADINGS I, Daniel Strauss, declare, pursuant to 28 U.S.C. § 1746, under penalty of perjury as follows: 1. I am the President of Adara Enterprises Corp. (“Adara” or the “Debtor”). I haveheld this position since 2019. On April 22, 2021 (the “Petition Date”), the Debtor filed for relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”). 2. I make this Declaration in support of the Debtor’s Chapter 11 petition and certaininitial motions (collectively, the “First Day Motions”) filed in this case (the “Chapter 11 Case”), which have been or are to be soon filed, including the following: a) Motion of the Debtor for Entry of Interim and Final Orders (I) ApprovingContinued Use of Cash Management System; (II) Authorizing the Debtorto Open and Close Bank Accounts; (III) Authorizing Banks to HonorCertain Transfers; (IV) Suspending the Requirements of 11 U.S.C. §345(B); and (V) Granting Related Relief (“Cash ManagementMotion”); b) Debtor’s Motion for Interim and Final Orders (I) Authorizing the Debtorto Utilize Cash Collateral; (II) Granting Adequate Protection to thePrepetition Secured Parties; (III) Authorizing Unsecured Debtor inPossession Financing; (IV) Scheduling a Final Hearing; and (V) GrantingRelated Relief (“Cash Collateral/DIP Motion”); 1 The last four digits of the Debtor’s federal tax identification number are 8502. The Debtor’s address is 411 E 57th Street Suite 1-A, New York, New York 10022.
1c) Motion of Debtor for Entry of Order Approving Assumption of Restructuring Support Agreement (“RSA Assumption Motion”); d) Motion of the Debtor For Entry of an Order (I) Scheduling a Combined Hearing on (A) Adequacy of Disclosure Statement, (B) Confirmation of Plan, and (C) The Assumption of Executory Contracts and Cure Amounts; (II) Approving Form and Manner of Notice of (A) Combined Hearing, (B) Commencement of Chapter 11 Case, and (C) Assumption of Executory Contracts and Cure Amounts Related Thereto, and Objection Deadlines; (III) Establishing Procedures for Objecting to (A) Disclosure Statement, (B) Plan, and (C) Proposed Assumption or Rejection of Executory Contracts and Cure Amounts; (IV) Conditionally Directing the United States Trustee not to Convene a Section 341 Meeting of Creditors; and (V) Granting Related Relief (the “Confirmation Procedures Motion”); e) Motion of the Debtor for Entry of an Order (I) Establishing Deadlines for Filing Proofs of Claim, Including Section 503(B)(9) Claims, (II) Approving the Form and Manner of Notice Thereof, and (III) Granting Related Relief (the “Bar Date Motion”); and f) Motion of the Debtor for Entry of Interim and Final Orders (I) Authorizing the Debtor to (A) Pay Certain Prepetition Wages and Compensation, (B) Maintain and Continue Employee Benefit Programs, and (C) Pay Reimbursable Expense Obligations, and (II) Authorizing And Directing Banks To Honor And Process Checks And Transfers Related To Such Employee Obligations (the “Employee Motion”). The Debtor may reference this declaration from time to time in support of other motions and applications in this Chapter 11 Case as well. I. THE DEBTOR’S STRUCTURE AND BUSINESS AND THE REASONS FOR FILING CHAPTER 11 A. The Debtor’s Business i. Overview 3. After a strategic restructuring of the Debtor’s prior business, Adara was launched in 2017 as an asset management business. Currently, the Debtor’s primary asset is quantitative trading software (the “Trading Software”), which was originally developed at significant expense over the course of 10-15 years by Clinton Group, Inc. (“Clinton”) and has been used to
2assist in trades of more than $50 billion by Clinton and its former licensees. In hopes of leveraging the Trading Software and building the Debtor’s asset management business, the Debtor took on financing in 2020, discussed below, which was used in large part to clear away historical indebtedness to the Debtor’s prior lender and facilitate an aggressive push to raise funds to manage on the Debtor’s quantitative trading strategy. While the Debtor worked tirelessly to recruit outside investors, it ultimately failed to generate interest from outside investors and was unable to raise funds prior to the maturity of its financing. Accordingly, the Debtor defaulted on its financing and has filed for Chapter 11 to facilitate a restructuring that will enable its proposed new owners – the Debtor’s existing senior secured lender and its affiliate – to utilize the Debtor’s assets in new value-maximizing ways while repaying all of the Debtor’s creditors in full and providing a meaningful distribution to the Debtor’s parent and sole common equity holder, GlassBridge Enterprises Inc. (“GlassBridge”). ii. Operational History 4. GlassBridge was formerly known as Imation Corp. (“Imation”). Upon information and belief, GlassBridge was formed in 1996 as a spinoff of 3M Co. At that time, I understand and believe that the Debtor was known as Imation Enterprises Corp. (“IEC”), and it was, as now, a subsidiary of Imation/GlassBridge. I am informed and believe that Imation manufactured and IEC marketed a wide variety of products and services for the information processing industry, specializing in data storage and imaging applications through several different units. Imation’s business units included: (1) data storage; (2) printing and publishing systems; (3) medical imaging systems and photo color products; (4) customer service technology; and (5) document imaging. Upon information and belief, Imation developed and
3manufactured the products for the various business lines and then sold them to the Debtor at cost, which the Debtor, in turn, marketed and sold through commercial and retail channels. 5. From the beginning, however, I am informed and believe that Imation and its subsidiaries, including the Debtor, struggled to be profitable. As a result, upon information and belief, Imation began to divest itself of various business lines in 1998 until it became focused solely on data storage by 2005. I am informed and believe that between 2005 and 2015, the Debtor made certain strategic acquisitions and attempted to pivot its business to meet rapidly changing data storage market needs and trends. Despite these efforts, I understand that the Debtor still failed to be profitable. Indeed, by 2015, the Debtor had net operating losses exceeding $450 million. 6. In the third quarter of 2015, Imation adopted a restructuring plan to begin the termination of all of its data storage business operations, and the Debtor wound down its distribution business for those products. During this time, the Debtor sought to ensure that all of its known creditors from its legacy business were paid in full. By the first quarter of 2016, Imation’s data storage business was effectively wound-down and all but a handful of small vendor claims had been repaid. The remaining vendors were paid in the following months, leaving the Debtor with no known unsecured creditors, other than, from time to time, trade payables incurred in the operation of the Debtor’s business that were paid in the ordinary course. 7. Having completed the wind-down of its data storage business, in 2017 GlassBridge and the Debtor acquired new management to help pivot its business to asset management. That team, which included me as President of the Debtor, remains in place. At or about that time, Imation announced its name change to GlassBridge and its new focus on asset management. In furtherance of that shift, in 2017, GlassBridge and the Debtor’s then wholly
4owned subsidiary, GlassBridge Asset Management LLC (“GAM”), entered into an agreement with Clinton to allow GAM to initially place up to $1 billion of investment capacity under Clinton’s management by utilizing the Trading Software. The transaction was structured to provide for quick and efficient scaling of the asset management business and designed to provide investors with access to quantitative equity strategies. In furtherance of this strategy, and pursuant to that agreement, Clinton granted to the GAM – again, then a wholly owned subsidiary of the Debtor – the right to invest funds through the Trading Software. GlassBridge supported the Debtor’s business by making a $10 million investment into the fund while the Debtor sought investments from other sources. That investment concluded in 2019. This arrangement with Clinton Group was terminated effective as of March 31, 2020. 8. Also in 2017, the Debtor established a second arm of its asset management business focused on making venture capital investments. To that end, the Debtor entered into a collaboration with Roc Nation to form Arrive LLC (“Arrive”) with the purpose of making venture capital investments and to serve as general partner and investment manager to a third-party fund. The shares of Arrive were held by GAM and thus were indirectly owned by the Debtor. iii. The Orix Notes 9. In 2019, Orix PTP Holdings, LLC (“Orix”) expressed an interest in purchasing the Debtor from GlassBridge and investing in Sport-BLX, Inc. (“Sport-BLX”), a sports investment platform, owned in part by GlassBridge. To that end, Orix provided $13 million of debt financing (the “Orix Notes”) to the Debtor and acquired 20.1% of the Debtor’s common stock from GlassBridge. Simultaneously, the Debtor received from GlassBridge, among other consideration, certain of GlassBridge’s shares in Sport-BLX. At the conclusion of this
5transaction, the Debtor owed $13 million to Orix, and its assets included certain shares of Sport-BLX and its interest in GAM (discussed above). 10. In 2020, the Debtor changed its name from Imation Enterprises Corp. to Adara and the name of GAM to Adara Asset Management LLC (“AAM”). At the same time, the COVID-19 pandemic and resulting liquidity constraints precluded Orix from executing on its initial plan to acquire the entirety of the Debtor’s stock from GlassBridge. The Debtor, GlassBridge and Orix reached an agreement by which the Debtor was relieved of its obligations under the Orix Notes through a series of transactions, including entry into the credit facility with ESW Holdings, Inc., the Debtor’s current senior secured lender. 11. The first step of this transaction was that on July 21, 2020, the Debtor caused AAM to distribute 100% of its membership interest relating to Arrive and certain other assets to the Debtor, which in turn assigned those interest to GlassBridge. The Debtor further assigned its obligations under the Orix Notes to AAM, the equity interests of which the Debtor sold to GEH Sport LLC (“GEH Sport”), another affiliate of GlassBridge, for $1.00 as well as GEH Sport’s agreement to assume the Debtor’s obligations under the Orix Notes. iii. The ESW Loan 12. Also on July 21, 2020, the Debtor borrowed $11 million from ESW Holdings (the “ESW Loan”) pursuant to a Loan and Security Agreement dated as of that date (the “LSA”). The ESW Loan had a maturity date of January 20, 2021. The proceeds of the ESW Loan were used to fund the Debtor’s business operation and, among other things, to purchase the Trading Software, to fund GlassBridge’s repurchase of the shares in the Debtor held by Orix, and to repay certain outstanding obligations.
613. The Debtor’s obligations under the LSA are guaranteed by GlassBridge, which also issued a Limited Recourse Stock Pledge Agreement to ESW Holdings to support the Debtor’s obligations under the LSA, pledging all of the Debtor’s stock as well as 30% of GlassBridge’s outstanding shares in Sport-BLX (the “Stock Pledge”). At the same time, an affiliate of ESW Holdings, ESW Capital LLC (“ESW Capital”), also entered into a Subscription Agreement with the Debtor and agreed to purchase 100 of the Debtor’s Series A Preferred Stock for a total purchase price of $25,000. Upon the liquidation, dissolution, or winding up of the Debtor, each holder of Series A Preferred Stock is entitled to a liquidation preference of $1,500 per share and each share of Series A Preferred Stock entitles the holder to one vote. 14. The Debtor’s obligations under the ESW Loan are secured by a first priority lien on substantially all of the Debtor’s assets, including the Trading Software. The Debtor has no other secured debt and, as noted above, has no known unsecured creditors (outside of, potentially, a few thousand dollars of vendor claims incurred in the ordinary course of the Debtor’s business). iv. Failed Shift to Quantitative Trading and Default on ESW Loan 15. After closing these July 2020 transactions, the Debtor was no longer obligated on the Orix Notes, and its operational focus had shifted solely to reviving, operating and marketing its quantitative trading platform. In addition to cash, its assets consisted solely of the Trading Software, and its sole indebtedness was the $11 million owed to ESW Holdings. 16. Because the ESW Loan had a short-term maturity, the Debtor knew it would need to ramp up its quantitative trading business, centered around the Trading Software, quickly and that it would need to raise substantial third-party investment in a short period of time in order to be successful and to enable the Debtor to repay the ESW Loan. To that end, the Debtor
7aggressively sought to raise investment capital. Ultimately, that effort failed. The Debtor was unable to raise any investment capital, and on January 21, 2021, the Debtor received notice from ESW Holdings that it had defaulted on its obligation to repay the ESW Loan at maturity. 17. Pursuant to Section 9 of the LSA, upon the occurrence of an event of default thereunder, the Debtor had the right to elect (the “Restructuring Election”) to proceed with a prepackaged plan of reorganization consistent with the pre-negotiated terms set forth in Exhibit E to the LSA (the “Agreed Restructuring Terms”) in lieu of ESW Holdings exercising its other remedies under the Loan and Security Agreement. On February 5, 2021, the Debtor made the Restructuring Election. B. Appointment of the Independent Director 18. GlassBridge is the owner of 100% of the Debtor’s common equity and the residual beneficiary of the Plan Consideration (defined below). GlassBridge and the Debtor have overlapping employees and Boards of Directors. Because both the Debtor and GlassBridge anticipated that implementing the Agreed Restructuring Terms might result in a meaningful distribution to GlassBridge after payment of all other allowed claims against the Debtor, the Debtor’s existing Board of Directors determined to appoint an independent director to have sole authority to evaluate and approve all (i) restructuring transactions involving the Debtor; (ii) all transactions involving the Debtor, on the one hand, and GlassBridge, affiliates of GlassBridge, and/or Insiders (as defined in the Bankruptcy Code), on the other hand; and (iii) any transaction involving a conflict of interest with respect to GlassBridge, affiliates of GlassBridge or Insiders. Accordingly, on March 1, 2021, William Lenhart (the “Independent Director”) was appointed to the Debtor’s Board of Directors.
8C. The Debtor’s Intentions in Chapter 11 19. After the Debtor made the Restructuring Election, the Debtor engaged in substantial good faith, arm’s-length negotiations with ESW Holdings, ESW Capital and GlassBridge, which culminated in the execution of a Restructuring Support Agreement (the “RSA”) as of April 21, 2021 between (1) ESW Holdings, as plan sponsor and consenting secured lender, (2) GlassBridge, as the holder of the Debtor’s common equity, (3) ESW Capital, as the Debtor’s preferred equity interest holder, and (4) the Debtor (together, the “RSA Parties”). The Independent Director has evaluated and approved the RSA on behalf of the Debtor. 20. Among other agreements reached under the RSA, the RSA Parties agreed to effectuate the Debtor’s restructuring through the Prepackaged Chapter 11 Plan of Reorganization of Adara Enterprises Corp. (as it may be amended, supplement or modified from time to time in accordance with the terms of the RSA, the “Plan”), the terms of which are substantially consistent with the Agreed Restructuring Terms, to the Debtor’s use of ESW Holdings’ cash collateral, and to the terms upon which ESW Holdings or its designee will provide the debtor with unsecured debtor in possession financing to permit the Debtor to fund the Debtor’s working capital needs and to pay related transaction costs, fees, liabilities and expenses during the pendency of the Chapter 11 Case. 21. The Plan generally provides that ESW Holdings, as plan sponsor, will fund the Plan Consideration (defined fully in the RSA) of $8.5 million on the Plan’s effective date, less any amount the Plan Sponsor provides to the Debtor in the form of post-petition financing. The Debtor will use the Plan Consideration to pay all holders of allowed unsecured and priority claims, if any, in full, with any residual consideration to be paid to GlassBridge on account of its
9common stock in the Debtor. There are no impaired classes under the Plan that are not also parties to the RSA. Indeed, while the Debtor intends to provide broad notice of this bankruptcy case and establish a bar date for filing claims, the Debtor anticipates that there will be minimal, if any, priority or general unsecured claims. Accordingly, the Debtor’s proposed Plan is entirely consensual. 22. On the Plan’s effective date, the Debtor will retire, cancel and discharge the equity interests held by GlassBridge. The Debtor will further issue 50% of its new common equity to ESW Capital in exchange for its Series A Preferred Stock and will issue 50% of its new common equity to ESW Holdings in exchange for $2 million of ESW Holdings’ prepetition secured claim. The Plan provides that the remainder of the Debtor’s prepetition secured claim owed to ESW Holdings under the LSA will remain outstanding and will become an obligation of the Debtor, as reorganized. ESW Holdings and GlassBridge will also execute releases of one another of certain claims and interests relating to the Debtor and certain of GlassBridge’s non-debtor subsidiaries, and ESW will grant to GlassBridge a license to use the Trading Software solely in connection with the sports industry. 23. Having negotiated the RSA, obtained agreement on the Plan, and received the approval of the Independent Director of the RSA and Plan, the Debtor believes it has entered bankruptcy well-poised for a successful restructuring. II. FIRST DAY PLEADINGS 24. Contemporaneously with the filing of its chapter 11 petition, the Debtor seeks approval of the First Day Motions and related orders (the “Proposed Orders”). The Debtor respectfully requests that the Court enter each of the Proposed Orders as they are critical to the Debtor’s successful reorganization in this Chapter 11 Case.
1025. I have reviewed each of the First Day Motions, Proposed Orders, and exhibits thereto (or have otherwise had their contents explained to me), and the facts set forth therein are true and correct to the best of my knowledge, information, and belief. Moreover, I believe that the relief sought in each of the First Day Motions (a) is vital to enabling the Debtor to make the transition to, and effectively administer this Chapter 11 Case with minimum disruption to its business or loss of value; (b) constitutes a critical element in the Debtor’s ability to successfully maximize value for the benefit of its estate; and (c) will permit the Debtor to expediently and efficiently proceed through its Chapter 11 Case, which will inure to the benefit of all stakeholders. A. Cash Management Motion 26. By the Cash Management Motion, the Debtor seeks entry of an order (i) approving the Debtor’s continued use of its current cash management system, existing bank accounts, and business forms, (ii) authorizing the Debtor to open and close bank accounts, (iii) authorizing all banks participating in the Debtor’s Cash Management System (as defined below) to honor certain transfers, (iv) suspending the requirements of 11 U.S.C. § 345(b); and (v) granting related relief. 27. Prior to the Petition Date, and in the ordinary course of its business, the Debtor maintained a very simple cash management designed to, among other things, efficiently collect, concentrate, and disburse funds (such system, the “Cash Management System”). The Cash Management system is comprised of one checking account (the “Bank Account”) with account number XXXXXX8188, which is maintained at Signature Bank (“Signature”) in the name of the Debtor. 28. All receipt and disbursement activity flows through the Bank Account. This
11centralization facilitates the Debtor’s cash forecasting, approval of disbursement of funds, and management of liquidity requirements. It also makes sense for the Debtor’s limited cash in-flows and disbursements. The Debtor, with the assistance of its advisors, has implemented protocols to ensure that only claims arising postpetition and certain claims arising prepetition (if payment of such prepetition claims is approved by this Court) will be paid by the Debtor. 29. The Debtor also uses various business forms, such as invoices, letterhead, and other business and marketing materials in the ordinary course of its business (the “Business Forms”). Because the Business Forms were used prepetition, they do not reference the Debtor’s current status as a debtor in possession. Requiring the Debtor to change existing Business Forms, especially where the Debtor has already filed the Plan and proposed a path towards its expedient confirmation, would unnecessarily distract the Debtor from its restructuring efforts and impose needless expenses on the estate. Thus, the Debtor requests that it be authorized to use its existing Business Forms without placing a “Debtor-In-Possession” legend on each. 30. Because of the disruption and added expense that would result if the Debtor were forced to close its existing Bank Account and order new Business Forms, I believe that it is in the best interests of the Debtor and its stakeholders for the Bank Account and existing Business Forms to remain in place. I believe that that relief requested in the Cash Management Motion is in the best interests of the Debtor’s estate, its creditors, and all other parties in interest and will enable the Debtor to efficiently continue to operate its business in chapter 11. Accordingly, on behalf of the Debtor, I respectfully submit that the Cash Management Motion should be approved. B. Cash Collateral/DIP Motion
1231. As discussed above, repayment of the ESW Loan is secured by a first priority lien on substantially all of the Debtor’s assets, including its cash (the “Cash Collateral”). By the Cash Collateral/DIP Motion, the Debtor seeks approval of the terms of its agreement with ESW Holdings, which is also memorialized in the RSA, for the use of its Cash Collateral during the Chapter 11 Case as well as the terms for ESW Holdings or its designee to provide the Debtor with unsecured financing in the amount of up to $350,000 (the “DIP Facility”), to be deducted from the total amount of the Plan Consideration. 32. The Debtor intends to use the Cash Collateral and DIP Facility, in accordance with the initial eight-week budget attached as Exhibit I to the interim Proposed Order, to (1) finance working capital needs and other general corporate purposes, and (2) pay related transaction, costs, fees, liabilities and expenses of the Chapter 11 Case. The Debtor has agreed with ESW Holdings to adhere to certain budget covenants and to provide budget variance reports to ESW Holdings on a bi-weekly basis. As a condition to ESW Holdings’ agreement for the use of Cash Collateral, the Debtor has agreed to provide adequate protection to ESW Holdings in the form of adequate protection liens, adequate protection superpriority claims, and the payment of ESW Holdings’ fees and expenses under the LSA, all as more fully set forth in the interim Proposed Order. ESW Holdings has agreed to provide a carve out for its adequate protection liens to facilitate the payment of fees that I understand will be owed to the Office of the United States Trustee as well as for payment of allowed professional fees. I understand that the complete terms between the Debtor and ESW Holdings for the use of Cash Collateral and for the provision of the DIP Facility are set forth in full in the interim Proposed Order and I believe that those terms properly reflect the agreement that has been reached between ESW Holdings and the Debtor.
1333. The Debtor urgently needs to use Cash Collateral and to obtain the DIP Facility to continue to operate its business and fund the administration of this Chapter 11 Case. Absent the relief requested in the Cash Collateral/DIP Motion, the Debtor likely will not have sufficient liquidity to fund its modest payroll and benefits obligations, and satisfy its restructuring costs during this Chapter 11 Case. All of the foregoing expenditures are necessary to preserve the value of the Debtor’s estate as a going concern. Any delay in the Debtor’s ability to access Cash Collateral or the DIP Facility would irreparably harm the Debtor and its estate. Accordingly, I respectfully submit on behalf of the Debtor that the Cash Collateral/DIP Motion should be granted. C. RSA Assumption Motion 34. As set forth above, over the past few months, the Debtor engaged in substantial negotiations with ESW Holdings, ESW Capital, and GlassBridge regarding the Debtor’s reorganization, which culminated in the RSA. Under the RSA, the RSA Parties agreed to support and take all reasonable actions necessary to facilitate the implementation and consummation of the Restructuring Transaction (as defined in the RSA) in accordance with the terms of the RSA in a timely manner. Through the RSA Assumption Motion, the Debtor seeks approval of its assumption of the RSA, but not approval of the underlying transactions contemplated by the Restructuring Transaction. 35. On behalf of the Debtor, I respectfully submit that the RSA Assumption Motion should be granted. The Debtor believes that the Restructuring Transaction represents the best and most value-maximizing path for the Debtor, its estate, and all stakeholders. The RSA ensures key stakeholder support for the Restructuring Transaction, which will permit the Debtor to expeditiously emerge from the Chapter 11 Case and maximize recoveries for creditors.
14Moreover, the RSA represents a major concession by ESW Holdings in its capacity as Consenting Lender – which is agreeing under the Plan to take 50% of the equity of the Reorganized Debtor in exchange for $2 million of its pre-petition secured claim, and to allow the remainder of its claim to remain outstanding following the Effective Date and become an obligation of the Reorganized Debtor (on terms to be set forth in the Plan Supplement) – and provides a 100% recovery to general unsecured creditors and a meaningful return to equity. ESW Holdings’s execution of the RSA constitutes a major victory for the Debtor and provides the foundation upon which this Chapter 11 Case may proceed to a successful confirmation, as well as the maximization of recoveries to all stakeholders. 36. The Debtor further believes that the assumption of the RSA will provide important structure and stability to the Chapter 11 Case and a framework for the confirmation and consummation of the Plan. Pursuing the Restructuring Transaction contemplated in the RSA preserves the highly advantageous bargain negotiated by the Debtor under the LSA, allows the Debtor to avoid any negative consequences that would result from a “free fall” into bankruptcy, and ensures the Debtor will have access to its Cash Collateral on a consensual basis as well as access to the DIP Facility as necessary to finance its liquidity needs during the Chapter 11 Case. 37. The RSA is the product of good faith and arm’s-length negotiations among the RSA Parties. Further, notwithstanding assumption of the RSA, confirmation and consummation of the consensual Plan will remain subject to all requirements of law, including satisfaction of all the requirements set forth in Bankruptcy Code section 1129. 38. The Debtor believes that the Restructuring Transaction contemplated by the RSA provides the Debtor with the best opportunity to maximize value in the Chapter 11 Case. Importantly, the RSA contains a “fiduciary out” provision, thus preserving the Debtor’s
15flexibility to pursue an alternative value-maximizing transaction, should one arise. This provision ensures that, while the Debtor is contractually bound to comply with the RSA, the Debtor retains the right to pursue an alternative restructuring path in compliance with its fiduciary duties. 39. The RSA also contains certain plan sponsor protections which provide that if the Debtor invokes its fiduciary out or the Court approves an Alternative Transaction, then ESW Holdings shall be entitled to the immediate payment from the closing of the Alternative Transaction of a termination/break-up fee in the amount of three (3) percent of the $8,500,000 Plan Consideration, inclusive of any amount advanced to the Debtor under the DIP Facility. 40. Each of the RSA Parties has agreed to undertake obligations as set forth in the RSA to effectuate the Restructuring Transaction and each has the ability to terminate the RSA under certain circumstances. Moreover, the RSA Parties have also agreed to a timeline for the achievement of various case milestones, which are set forth more fully in the RSA Assumption Motion. 41. The Debtors submits that the RSA provides the best path for the Debtor’s restructuring and that the RSA accurately reflects the agreement it has reached with the RSA Parties. On behalf of the Debtor, I respectfully request that the Court grant the RSA Assumption Motion. D. Confirmation Procedures Motion 42. Through the Confirmation Procedures Motion, the Debtor seeks entry of an order, among other things: (a) scheduling a combined hearing (the “Combined Hearing”) for the Court to consider (i) approving the adequacy of the Disclosure Statement for Prepackaged Plan of Reorganization Under Chapter 11 of the Bankruptcy Code for Adara Enterprises Corp.. (as may be amended, modified or
16supplemented from time to time the “Disclosure Statement”), (ii) confirmation of the Plan (as defined above),2 and (iii) the proposed assumption or rejection of executory contracts, unexpired leases and any related cure costs in connection therewith (the “Cure Amounts”); (b) establishing the deadline to object to the adequacy of the Disclosure Statement and confirmation of the Plan; (c) establishing the deadline to object to the proposed assumption or rejection of executory contracts and unexpired leases and any related Cure Amounts; (d) approving the form and manner of notice of the Combined Hearing, the objection deadlines, notice of commencement, and the assumption of executory contracts and unexpired leases, Cure Amounts; and (e) conditionally directing the Office of the United States Trustee for the District of Delaware for Region 3 not to convene the initial meeting of creditors under section 341(a) of the Bankruptcy Code. 43. The following table summarizes the key proposed dates relevant to the Confirmation Procedures Motion, subject to the Court’s calendar: Event Date Within three (3) Business Days of the entry Combined Notice Mailing Date of the Proposed Scheduling Order, or as soon as reasonably practicable thereafter Plan Supplement Filing Date May 13, 2021 Plan / Disclosure Statement Objection May 20, 2021, at 4:00 p.m. (prevailing Deadline Eastern Time) Confirmation Brief / Reply to Plan / June 2, 2021 Disclosure Statement Objections Deadline Deadline to file and serve the May 12, 2021 Assumption and Cure Notice June 2, 2021, at 4:00 p.m. (prevailing Executory Contract Objection Deadline Eastern Time) Executory Contract Reply Deadline June 4, 2021 Combined Hearing June 9, 2021 If Plan is not confirmed by June 16, 2021, Section 341(a) Meeting on no less than twenty-one (21) days’ notice; if Plan is confirmed by June 16, 2 Capitalized terms not otherwise defined herein shall have the meaning set forth in the Plan.
17Event Date 2021, there will be no Section 341(a) Meeting 44. I understand that the relief requested in the Confirmation Procedures Motion is the typical relief requested in connection with the prosecution of a prepackaged chapter 11 plan of reorganization. Permitting the Debtor to utilize these procedures here will help streamline the chapter 11 process and ensure that all creditors with allowed claims are paid in full under the Plan. The procedures also reduce the administrative burden of the Court and the Office of the United States Trustee. I believe the relief requested in the Confirmation Procedures Motion is in the best interest of the Debtor’s estate, its creditors, and all other parties in interest. Accordingly, I respectfully submit, on behalf of the Debtor, that the relief requested in the Confirmation Procedures Motion should be granted. E. Bar Date Motion 45. Through the Bar Date Motion, the Debtor seeks an order (i) establishing deadlines for creditors to submit proofs of claim, (ii) approving the form and manner for submitting such proofs of claim, and (iii) approving notice thereof. Specifically, the Debtor requests that the Court set the following bar dates: Establishing the first business date that is at least thirty days after service of the Bar Date Notice at 4:00 p.m. (ET) as the “General Bar Date” and deadline for all persons or entities, other than Governmental Units (as defined in section 101(27) of the Bankruptcy Code), to file proofs of claim (each, a “Proof of Claim”) based on claims against the Debtor that arose prior to the Petition Date, including claims for the value of goods sold to the Debtor in the ordinary course of business and received by the Debtor within twenty (20) days before the Petition Date that remain unpaid; and October 19, 2021 at 4:00 p.m. (ET) as the “Governmental Bar Date” and deadline for all Governmental Units to file Proofs of Claim against the Debtor based on claims against the Debtor that arose prior to the Petition Date that remain unpaid.
1846. I understand that the claims bar date plays an essential role in the dual goals of bankruptcy—i.e., preserving going concerns and maximizing property available to satisfy creditors. I further understand that the claims bar date allows debtors and parties in interest to expeditiously determine and evaluate the liabilities of the estate and develop a sound plan of reorganization. Here, especially considering the proposed timeframe for the combined Confirmation Hearing for the Debtor’s Plan, it is of critical importance for the universe of claims to be known as of the Confirmation Hearing. Prolonged uncertainty regarding claims would delay and potentially upset this process. 47. Through the Bar Date Motion, the Debtor also seeks to establish procedures for providing notice of the Bar Dates and the proof of claim form. The proposed mailings will provide actual notice to known creditors wherever practicable, while at the same time preserving the integrity of the Bar Dates. By the Bar Date Motion, the Debtor also seeks approval of a form of publication notice to advise unknown creditors of the Debtor’s Chapter 11 Case and the need to timely submit a proof of claim. 48. The Debtor respectfully requests that this Court find that the Debtor’s proposed procedures regarding all notices be deemed: (a) good, adequate, and sufficient notice to all creditors of the Bar Dates and their rights and obligations in connection with any Claims they may assert against the Debtors in this chapter 11 case and (b) to satisfy the requirements of the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules. 49. I believe the relief requested in the Bar Date Motion is in the best interest of the Debtor’s estate, its creditors, and all other parties in interest as it will ultimately enable the Debtor to evaluate the liabilities of the company. I respectfully submit that the Bar Date Motion should be approved.
19F. Employee Motion 50. By the Employee Motion, the Debtor seeks to eliminate any personal hardship to its employees as a result of the filing of this Chapter 11 Case and to minimize the disruption to the Debtor’s efforts to reorganize. As of the Petition Date, although the Debtor is not currently aware of any outstanding amounts due, certain of the Debtor’s prepetition obligations to its Employees or other third parties on account of wages and compensation (collectively, the “Prepetition Workforce Obligations”), may remain unpaid or not yet provided for the reasons set forth in the Employee Motion. By the Employee Motion, the Debtor seeks authority, but not direction, to pay or provide as they become due all Prepetition Workforce Obligations and the related administrative fees that have already accrued, to the extent any exist, subject to the priority payment cap of $13,650 per Employee as set forth in section 507(a)(4) of the Bankruptcy Code. 51. While the Debtor does not request authority to pay prepetition amounts due on account of Employee Benefits Programs (as defined below), with the exception of PTO up to the priority cap of $13,650 per Employee, by the Employee Motion, the Debtor requests confirmation of its right to continue to perform its obligations with respect to the Employee Benefit Programs. The Debtor also seeks authority, but not direction, to pay Reimbursable Expense Obligations (as defined below), to the extent any are owed. 52. As set forth fully in the Motion, the Debtor also requests that the Court issue an order authorizing and directing all applicable banks and other financial institutions, including Signature Bank where the Debtor maintains its checking account, (collectively, the “Banks”) to honor Prepetition Workforce Obligations, provided that the Debtor has sufficient funds on deposit.
20i. The Debtor’s Workforce 53. As of the Petition Date, the Debtor has four (4) full time salaried employees (the “Salaried Employees”) and one (1) as-needed employee (the “As-Needed Employee” and with the Salaried Employees, the “Employees”). GlassBridge and the Debtor’s Employees overlap, with each of GlassBridge and the Debtor compensating the Employees for the work completed for each respective entity. The Debtor pays approximately $56,000 monthly in salary, benefits, payroll tax and other fees. The Employees will be central to guiding the Debtor through its restructuring and will be instrumental in helping the Debtor to exit bankruptcy in a timely manner. 54. The Employees’ knowledge and understanding with respect to the Debtor’s history and operations, and their work in furtherance of the Debtor’s restructuring efforts, are essential to maintaining the Debtor’s business during this Chapter 11 Case and ensuring that the Debtor can achieve confirmation of the Plan. Moreover, just as the Debtor depends on the Employees to operate its business, those individuals also depend on the Debtor to meet their basic living necessities. Accordingly, as set forth in the Employee Motion, the Debtor seeks authority, but not direction, to pay any pre-petition amounts outstanding, if any, up to the statutory cap of $13,650 to each Employee. ii. Prepetition Wages, Salaries, and Other Compensation a. Employee Compensation 55. In the ordinary course of business, the Debtor pays its Salaried Employees on a monthly basis, two weeks in arrears and two weeks in advance. Salaried Employees are paid on the fourteenth day of each month. The Debtor’s first postpetition scheduled payroll date for the
21Salaried Employees is May 14, 2021, which will compensate Employees for postpetition services only. 56. In connection with the wages and salaries paid to its Employees, the Debtor is required by law to withhold from its Employees’ paychecks certain amounts for federal, state, and local income taxes and other payments, employee benefits, employee programs, and unemployment insurance (collectively, the “Withholding Taxes and Obligations”) and to remit the withheld amounts to the appropriate taxing and other governmental authorities in the United States and all other applicable jurisdictions (collectively, the “Authorities”). 57. The Debtor utilizes the services of ADP, LLC (“ADP”), a third-party payroll administrator, to process its payroll to Salaried Employees. The Debtor remits a lump sum payment into a specified ADP account, which ADP then uses to fund payroll and to remit the Withholding Taxes and Obligations directly to the appropriate Authorities for Salaried Employees. The Debtor pays $133.45 to ADP for each payroll it processes. The Debtor seeks authority to continue to administer and process its Salaried Employee payroll through ADP and to pay ADP the amounts owed. As of the Petition Date, the Debtor does not believe it owes any amounts to ADP. 58. The Debtor’s As-Needed Employee is paid every other week in advance directly by GlassBridge through its payroll processor. The Debtor then repays GlassBridge for the amount advanced. Through its payroll processor, GlassBridge withholds and remits Withholding Taxes and Obligations to the appropriate Authorities for the Debtor’s As-Needed Employee. The Debtor currently owes GlassBridge $72,187 on account of its As-Needed Employee’s compensation or Withholding Taxes and Obligations, but does not seek authority to pay that
22amount by this Motion. Instead, the Debtor seeks authority to pay the As-Needed Employee through GlassBridge postpetition. b. Employee Benefit Programs 59. In the ordinary course of business, GlassBridge maintains on behalf of itself and certain of its affiliates, including the Debtor, various employee benefit plans and policies, including, without limitation, a medical plan, dental plan, vision plan, life insurance plan, and short term and long term disability plan (collectively, the “Salaried Employee Benefit Programs”) as described in greater detail below. GlassBridge then charges Adara for the applicable portion of the premiums and Adara repays GlassBridge on a monthly basis, generally by accruing an intercompany receivable in favor of GlassBridge. Salaried Employees are eligible for all company sponsored benefits. 60. Health Plans. The Debtor’s medical, dental and vision insurance plans, (collectively, the “Health Plans”), are provided by the insurance companies United Healthcare Oxford Freedom (“Oxford”) and Guardian. GlassBridge and the Debtor share the cost of the Salaried Employee’s Health Plans and, together, pay 100% of the Salaried Employee’s and his or her dependents’ Health Plans premiums. The Debtor estimates that its share of the Health Plans cost approximately $6,000 per month. 61. Life, AD&D, Short-Term and Long-Term Disability Insurance. Through GlassBridge, the Debtor provides basic life insurance and accidental death and dismemberment (“AD&D”) insurance, short term and long term disability programs. Each of these programs are provided by Guardian. GlassBridge and the Debtor share the costs of these benefits and together pay 100% of the Salaried Employees’ premium associated with these programs. The Debtor estimates that its share of these programs cost less than $2,000 per year.
2362. The Debtor owes GlassBridge approximately $53,097 for the Debtor’s share of payments to Oxford as well as approximately $4,646 for the Debtor’s share of payments to Guardian on account of Salaried Employee Benefit Programs. By the Employee Motion, the Debtor does not seek to pay GlassBridge for any prepetition amounts paid to Oxford or Guardian on the Debtor’s behalf. 63. PTO. Together, the Debtor and GlassBridge provide Salaried Employees with either three or four weeks of PTO per 12-month period, which accrues ratably per each monthly pay period by taking the Employee’s total PTO days for the year times eight (8) hours, divided by twelve (12) months, and then multiplying by the Employee’s hourly rate. The hourly rate is an Employee’s annual salary divided by 2080 hours. The Debtor intends to honor its prepetition PTO policy. As of the Petition Date, the Debtor estimates that it owes approximately $58,904 in accrued, prepetition PTO. 64. The Debtor’s As-Needed Employee pays for her medical, dental and vision insurance plans directly and the Debtor and GlassBridge repay the As-Needed Employee quarterly for each of their share of the costs of the premiums (the “As-Needed Employee Benefit Program” and with the Salaried Employee Benefit Programs, the “Employee Benefit Programs”). As of the Petition Date, the Debtor owes GlassBridge approximately $14,091 on account of the As-Needed Employee Benefit Program. By the Employee Motion, the Debtor does not seek to pay GlassBridge for any prepetition amounts paid by it to the As-Needed Employee on account of the As-Needed Employee Benefit Program. 65. After the Petition Date, subject to the Debtor’s discretion regarding the modification or discontinuation of such programs, the Debtor seeks authority to continue to provide and administer the Salaried Employee Benefit Programs for the Salaried Employees and
24to pay to GlassBridge the Debtor’s allocable share of these expenses. The Debtor further seeks authority to continue to repay the As-Needed Employee quarterly for her expenses towards the As-Needed Employee Benefit Program. Further, the Debtor will offer COBRA insurance for the Employees to cover certain periods should any such Employees have a covered termination. c. Reimbursable Expense Obligations 66. Prior to the Petition Date, in the ordinary course of business, the Debtor reimbursed certain Employees for reasonable and legitimate expenses incurred on behalf of the Debtor in the scope of the Employee’s employment (“Reimbursable Expense Obligations”). Reimbursable Expense Obligations typically include expenses for, among other things, travel, mileage, food, beverage, cell phone and certain other business and travel related expenses. All such expenses are incurred with the applicable Employee’s understanding that he or she will be reimbursed by the Debtor in accordance with the Debtor’s reimbursement policy, as described in more detail below. In all cases, reimbursement is contingent on the Debtor’s determination that the charges are for legitimate business expenses. 67. The Reimbursable Expense Obligations are ordinary course expenses that the Debtor’s Employees incur in performing their job functions. It is essential to the continued operation of the Debtor’s business that the Debtor be permitted to continue reimbursing, or making direct payments on behalf of, Employees for such expenses. Employees incur the Reimbursable Expense Obligations as business expenses on the Debtor’s behalf and with the understanding that they would be reimbursed. While the Debtor is currently unaware of any outstanding prepetition Reimbursable Expense Obligations, to avoid harming Employees who incurred the Reimbursable Expense Obligations, the Debtor requests authority, but not direction, to satisfy all prepetition Reimbursable Expense Obligations to the extent Employees have paid
25for such expenses directly from their own funds or are otherwise personally liable for such expenses. The Debtor also seeks authority to continue its reimbursement policy, and to satisfy any prepetition amounts due in connection therewith, in the ordinary course of business during the administration of this Chapter 11 Case. 68. In light of the importance of the Employees to the Debtor’s business, I respectfully submit, on behalf of the Debtor, that the relief requested in the Employee Wage Motion is essential and should be granted. [remainder of page intentionally blank]
26Dated: April 22, 2021 By: Daniel Strauss President, Adara Enterprises Corp. [SIGNATURE PAGE TO DECLARATION OF DANIEL STRAUSS IN SUPPORT OF CHAPTER 11 PETITION AND FIRST DAY PLEADINGS]