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Full title: Objection to Motion to Dismiss Case filed by Wendy D Brewer on behalf of Creditor Haier US Appliance Solutions, Inc (re: Doc # 3167). (Brewer, Wendy) (Entered: 07/22/2021)

Document posted on Jul 21, 2021 in the bankruptcy, 14 pages and 0 tables.

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The proposed Initial Order would a. grant the Debtors broad authority to reconcile, allow, and make distributions on administrative expense claims and “in the event the Debtors determine, based on progress with the liquidation of remaining assets including the Litigation Claims, that allowed administrative claims will be paid in full and allowed priority claims may be entitled to distributions” to reconcile, allow, and make distributions on priority claims; b. approve a $1.15mil Wind Down Budget that includes a Wind Down Professional Fee Reserve in the amount of $550,000 (in addition to any amounts required to be paid as contingency fees) to ensure payment of the fees and costs of Debtors AND Committee professionals from January 1, 2021 until dismissal of the case; c. require case Professionals to file final fee applications for professional fees incurred prior to January 1, 2021 and to file final applications for fees incurred on or after January 1, 2021 within 30 days prior to a hearing on the Debtors’ final report of the reconciliation and pro rata payment of administrative and/or priority claims; d. authorize the Debtors to destroy books and records; e. direct that the Debtors file a “certification of counsel” as soon as reasonably practicable after the filing of the Final Report, the payment of U.S. Trustee Fees, and the payment of Professional Fees, requesting entry of the Dismissal Order; and f. require the Debtors to continue to file monthly operating reports and pay U.S. Trustee fees until entry of the dismissal order; g. treat all of the Debtors’ executory contracts, to the extent not rejected by prior Court order, as deemed rejected; and h. grant the Debtors the broad authority to “take any and all actions necessary” to effectuate the relief granted pursuant to the Initial Order.Under the procedures established by the proposed form of Initial Order, the Debtors are only required to file an interim status report on the process “in the event the Debtors determine, based on progress with the liquidation of remaining assets including the Litigation Claims, that allowed administrative claims will be paid in full and allowed priority claims may be entitled to distributions . Based on a search of various filings in the case, GEA determined the term “GOB Administrative Claim” first appeared in a filing in this case in a motion filed by the Debtors and the Committee on November 27, 2017 – the Motion of the Debtors and the Official Committee of Unsecured Creditors for Order Approving Settlement of Claims of Synchrony Bank (the “Synchrony 9019 Motion”).Retention and Employment of Chipman Brown Cicero & Cole, LLP to Pursue Certain Claims against the Debtors’ Directors and Officers [DN 2282] (the “CBCC Agreed Entry”) was entered pursuant to which the engagement terms for CBCC were modified to remove any reference treatment of the professional fee claims of CBCC as “GOB Administrative Claims” and providing that “G

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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION IN RE: Chapter 11 hhgregg, Inc., et al.1 CASE NO: 17-01302-JJG-11 Debtors. Jointly Administered LIMITED OBJECTION TO DEBTOR’S AMENDED MOTION TO DISMISS Creditor and party-in-interest, Haier US Appliance Solutions, Inc. d/b/a GE Appliances, as successor-in-interest to the Appliances business unit of General Electric Company (“GEA”), submits this Limited Objection to the Debtors’ Amended Motion for Entry of an Order (I) Dismissing the Debtors’ Chapter 11 Cases; (II) Establishing Case Wind Down Procedures with Respect to Claims Reconciliation, Professional Fee and Final Fee Applications; (III) Directing the Debtor Entities to be Dissolved; and (IV) Granting Related Relief (the “Dismissal Motion”) (DN 3167) filed by the Debtors in these jointly administered cases and states the following: RELEVANT PROCEDURAL HISTORY 1. On March 6, 2017 (the “Petition Date”), hhgregg, Inc. and its affiliates Gregg Appliances, Inc. and HHG Distributing, LLC (collectively, the “Debtors”), filed voluntary petitions under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Southern District of Indiana (the “Bankruptcy Case”). 1 The Debtors in these cases are hhgregg, Inc., Gregg Appliances, Inc., and HHG Distributing, LLC.

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2. On March 10, 2017, the Office of the United States Trustee for the Southern District of Indiana (the “U.S. Trustee”) appointed the Official Committee of Unsecured Creditors (the “Committee”) in these cases. THE GEA CLAIM 3. GEA holds an allowed administrative claim in the amount of $466,761.67 [DN 2311] (the “GEA Claim”) which was allowed on March 2, 2018. No payment has been made on account of GEA’s claim. THE DISMISSAL MOTION AND THE RELIEF REQUESTED 4. On July 1, 2021, the Debtors filed the Dismissal Motion [DN 3167]. By the Dismissal Motion, the Debtors seek entry of an Initial Order and a Dismissal Order. 5. The proposed Initial Order would a. grant the Debtors broad authority to reconcile, allow, and make distributions on administrative expense claims and “in the event the Debtors determine, based on progress with the liquidation of remaining assets including the Litigation Claims, that allowed administrative claims will be paid in full and allowed priority claims may be entitled to distributions” to reconcile, allow, and make distributions on priority claims; b. approve a $1.15mil Wind Down Budget that includes a Wind Down Professional Fee Reserve in the amount of $550,000 (in addition to any amounts required to be paid as contingency fees) to ensure payment of the fees and costs of Debtors AND Committee professionals from January 1, 2021 until dismissal of the case; c. require case Professionals to file final fee applications for professional fees incurred prior to January 1, 2021 and to file final applications for fees incurred on or after January 1, 2021 within 30 days prior to a hearing on the Debtors’ final

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report of the reconciliation and pro rata payment of administrative and/or priority claims; d. authorize the Debtors to destroy books and records; e. direct that the Debtors file a “certification of counsel” as soon as reasonably practicable after the filing of the Final Report, the payment of U.S. Trustee Fees, and the payment of Professional Fees, requesting entry of the Dismissal Order; and f. require the Debtors to continue to file monthly operating reports and pay U.S. Trustee fees until entry of the dismissal order; g. treat all of the Debtors’ executory contracts, to the extent not rejected by prior Court order, as deemed rejected; and h. grant the Debtors the broad authority to “take any and all actions necessary” to effectuate the relief granted pursuant to the Initial Order. 6. The proposed Dismissal Order effectuates the dismissal of the case. 7. The Dismissal Motion represents that dismissal is in the best interests of the creditors of the estate, but provides no evidence or other information sufficient to allow a creditor to evaluate that statement. 8. Additionally, it appears from the Dismissal Motion that the Debtors do not contemplate any further Court involvement in the case once the Initial Order is entered, with the exception of the ministerial entry of the Dismissal Order upon receipt of the certification of the Debtors. RELIEF REQUESTED BY THIS OBJECTION 9. GEA objects to approval of the Wind Down Budget and objects to dismissal of the case in the manner and on the terms proposed by the Debtors because the Debtors have failed to satisfy the requirements set forth in Section 1112(b)(1) of the Bankruptcy Code.

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BASIS FOR REQUESTED RELIEF 10. In general, GEA does not dispute the need to wrap up this case and make final distributions to creditors, such as GEA – or that dismissal of the case may ultimately be the correct result. However, the Debtors have not yet satisfied their burden of proof under Section 1112(b)(1) of the Bankruptcy Code, and the “structure” of the dismissal proposed is problematic for a variety of reasons. The Dismissal Motion Fails to Provide Sufficient Information 11. The Dismissal Motion fails to provide any detail regarding the assets remaining in the estate, the nature of those assets, or the extent of claims against the estate. 12. The most recent monthly operating report of the Debtors represents that the Debtors have “current assets” valued at $14,721,019, yet only $1,289,181 in cash, $0 in inventory, and $5,954,425 in extremely old receivables. So what comprises the rest of those “current” assets? Do those “current assets” include speculative recoveries in the pending and unresolved Litigation Claims? 13. At this point, it is simply impossible for any creditor reviewing the Dismissal Motion to determine that the process proposed by the Debtors – and the ultimate dismissal of the case – is warranted under the circumstances, and therefore GEA had little option but to file this objection to protect its interests. 14. At a minimum the Debtors should have provided a liquidation budget for consideration by the creditors along with the motion. The unsupported representations of the Debtor in the Dismissal Motion are insufficient to establish the “cause” necessary to justify approval of the relief provided by the Initial Order, or the dismissal of the case in accordance with Section 1112(b)(1) of the Bankruptcy Code.

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The Case Wind Down Budget Should Not be Approved 15. By the Dismissal Motion, the Debtors seek approval of a $1.15 mil Wind down Budget. 16. According to the most recently filed Monthly Operating Report for Gregg Appliances, Inc., the cash balance of the Debtors as of June 30, 2021, was just $1,289,181. 17. The Dismissal Motion fails to provide any information to parties in interest regarding the nature or extent of the work to be performed in the wind down process or the potential recoveries for the estate during the process. However, the budget includes $550,000 allocated to protect the professional fees of counsel for the Debtor and the Committee for the period from January 1, 2021 through entry of the Dismissal Order. 18. The Dismissal Motion is replete with hints and suggestions that administrative expense creditors such as GEA will not be paid in full – i.e. that the case is administratively insolvent. 19. To date, the Debtors have not initiated a claims bar date process for priority claims because the Debtors are still uncertain that even administrative claims will be paid in full. Counsel for the Debtors represented to the Court and the parties at multiple hearings that the establishment of a bar date for general unsecured creditors (“GUCs”) and the expense of providing notice to the GUCs was pointless because it was unlikely that priority claims will be paid in full, let alone that any distribution would ever be made to the GUCs. 20. In fact, in the Response of the Official Committee of Unsecured Creditors of Gregg Appliances, Inc. in Support of the Approval of the Debtors’ Motion for Entry of an Order (I) Dismissing the Debtor’s Chapter 11 Cases; (II) Establishing Case Wind Down Procedures to Claims Reconciliation, Professional Fees and Final Fee Applications; (III) Directing the Debtor Entities to be Dissolved; and (IV) Granting Related Relief [DN 3148] (the “Committee Response”), the Committee endorses the Dismissal Motion and states: Taking into account that there are insufficient funds to satisfy the estates’ priority claims (much less general unsecured claims) even if the liquidation of the remaining assets yields recoveries at the higher end of estimates, the Committee

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has determined that the relief requested in the Motion to Dismiss merits this Court’s approval and provides closure to all stakeholders without unreasonable delay. Emphasis added. 21. In a case that is very likely administratively insolvent, the Wind Down Budget proposes to allocate $550,000 in professional fees for the compensation of counsel for the Debtors AND the Committee. Without more information, the allocation of such a substantial sum appears excessive. 22. Furthermore, is impossible to tell from the bare bones Wind Down Budget and the information contained in the Dismissal Motion, just how much of the budgeted professional fees are allocated for the benefit of Committee counsel. At this point, Committee counsel’s role in this case should be marginal considering the Committee can no longer serve its designated purpose – to represent the interests of the GUCs who are, and apparently have been “out of the money” for quite some time. The Dismissal Motion Seeks a Broad Grant of Authority to the Detriment of Creditors 23. By the Dismissal Motion, the Debtors appear to seek broad authority to reconcile, to allow, to determine which administrative claims should be paid, and to commence payment of those claims. No mention is made of any Court involvement in that process. In fact, the Initial Order proposed by the Debtors includes language as follows: The Debtors are authorized to take any and all actions necessary to effectuate the relief granted pursuant to this Initial Order. 24. Under the procedures established by the proposed form of Initial Order, the Debtors are only required to file an interim status report on the process “in the event the Debtors determine, based on progress with the liquidation of remaining assets including the Litigation Claims, that allowed administrative claims will be paid in full and allowed priority claims may be entitled to distributions . . . .”

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25. The provisions of the Initial Order are contrary to Section 503 of the Bankruptcy Code which provides in relevant part that “[a]fter notice and a hearing, there shall be allowed administrative expenses . . . .” The Dismissal Motion Seeks to Continue the Improper Practice of Favoring Certain Administrative Expense Claims over Other Similarly Situated Claims 26. Throughout this bankruptcy case, the Debtors and the Committee have acted outside of the scrutiny of this Court and the stakeholders in this case to pick and choose the administrative expense claims that should be paid. 27. This has been a case that proves true the old adage “if you give them an inch, they will take a mile.” 28. The Debtors in this case, with the full endorsement of the Committee, have taken a grant of authority from the Final Order (I) Authorizing Debtors in Possession to Obtain Post-Petition Financing Pursuant to 11 U.S.C. §§ 105, 362, 363 and 364, (II) Granting Liens and Superpriority Claims to Post-Petition Lenders Pursuant to 11 U.S.C. §§ 364 and 507; and (III) Authorizing the Use of Cash Collateral and Providing Adequate Protection to Prepetition Secured Parties and Modifying the Automatic Stay Pursuant to 11 U.S.C. §§ 361, 362, 363, and 364 [DN 923] (the “Final DIP Order”) entered in the early days of this case, and interpreted that authority to allow majority of this case to occur outside of the scrutiny of the stakeholders. Now, creditors such as GEA who were not part of the favored group, are faced with what appears to be an administratively insolvent estate and the Debtors and the Committee are requesting another broad grant of authority to finish out the case outside of the supervision of the Court and without any opportunity for stakeholders to weigh in to protect their interests.

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GEA’s Objection to the CCBC Application to Employ 29. GEA highlighted concerns about such activities in its Objection to Application to Employ and Retain Chipman Brown Cicero & Cole, LLP as Counsel to the Committee and Incorporated Motion to Strike Portions of the Supplemental Declaration of Renee B. Weiss [DN 2208] (the “CBCC Objection”), which objection is incorporated herein by reference. 30. On December 28, 2017, the Committee filed its Application of the Official Committee of Unsecured Creditors of Gregg Appliances, Inc. for Entry of an Order Authorizing the Employment and Retention of Chipman Brown Cicero & Cole, LLP as Counsel to Pursue Certain Claims Against the Debtors’ Directors and Officers (the “Application to Employ CBCC”) [DN 2134]. Pursuant to the Application to Employ CBCC, if a claim is resolved prior to filing suit, CBCC is entitled to receive a contingency fee equal to 10% of the cash and noncash financial benefits or consideration received by the Debtor’s estates (the definition of the non-cash benefits includes, among other things, the reduction of claims by the directors and officers). If a claim is resolved after filing a complaint, CBCC is entitled to a contingency fee on a sliding scale ranging from 20-35% depending on the total cash and noncash financial benefits received by the Debtors’ estates. 31. The Application to Employ CBCC also sought approval to require the Debtors to advance to CBCC all reasonable costs and expenses incurred by CBCC in performing legal services for the Committee – subject to a prior approved estimate and budget. Regardless of whether CBCC was successful in pursuit of the claims, CBCC was to be granted a “GOB Administrative Claim” for all such amounts. 32. No definition of GOB Administrative Claim was provided in the Application to Employ CBCC. 33. Based on a search of various filings in the case, GEA determined the term “GOB Administrative Claim” first appeared in a filing in this case in a motion filed by the Debtors and the

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Committee on November 27, 2017 – the Motion of the Debtors and the Official Committee of Unsecured Creditors for Order Approving Settlement of Claims of Synchrony Bank (the “Synchrony 9019 Motion”). 34. The Synchrony 9019 Motion proposed to approve an administrative claim in the amount of $1,925,000.00 in favor of Synchrony, with $500,000 of that claim being afforded “GOB Administrative Claim” status. [DN 2054, ¶ 14]. 35. The term “GOB Administrative Claim” in the Synchrony 9019 Motion referred to the use of the phrase in “the Debtors’ Second Amended DIP Agreement, filed on November [ ], 2017”. [DN 2054, ¶ 14(c)(i)]. 36. As of the date of filing the Synchrony 9019 Motion, no such “Debtors’ Second Amended DIP Agreement” had been filed with the Court. 37. Sometime later, on December 14, 2017, the Debtors, the Committee and the lenders filed their Notice of Submission of Second Amendment to Debtor-in-Possession Loan and Security Agreement [DN 2105] (the “DIP 2nd Amendment”). 38. As outlined in the CBCC Objection, it appears the Debtors, the Committee and their lenders relied heavily upon the grant of authority provided in the Final DIP Order in Paragraph 53 providing as follows: The Debtors and the DIP Agent may, with the consent of the FILO Agent, amend, modify, supplement, or waive any provision of the DIP Financing Agreements in accordance with the terms thereof without further approval of this Court, but only after notice to the Committee, unless such amendment, modification, supplement, or waiver (i) increases the interest rate (other than as a result of the imposition of the Default Rate), (ii) increases the DIP Commitments, or (iii) changes the maturity date of the DIP Facility. All waivers, modifications, or amendments of any of the provisions of this Final Order shall not be effective unless set forth in writing, signed by and on behalf of the Debtors, the DIP Agent, the FILO Agent and the Prepetition Agent, and, if required, approved by this Court. [DN 923, ¶ 53, emphasis added].

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39. The DIP 2nd Amendment is an agreement entered into by and between, Wells Fargo Bank, N.A., GACP Finance Co., LLC, and GACP 1, L.P. (collectively, the “DIP Lenders”), the Debtors, and the Committee. 40. The DIP 2nd Amendment established a “Bucket System” of special claims and established a “Funding Split Waterfall” to fill those buckets using all of the receipts of the Debtors’ estates. The Funding Split Waterfall required that all funds be dedicated to filling the “Buckets” created prior to being allocated or paid to any other creditor of claimant of the estate. 41. In summary, the “Buckets” created by the DIP 2nd Amendment were as follows: a. Bucket 1, KEIP Carve Out: $1,510,000 “restricted for the benefit of the KEIP Participants . . . .” b. Bucket 2, GOB Administrative Claims: $2,700,000. c. Bucket 3, Case Professionals Carve Out: $2,500,000 “restricted for the benefit of the Case Professionals . . . .” Case Professionals include the professionals retained by the Debtors and the Committees, except ASK LLP. d. Bucket 4, GACP: $10,000,000 principal, a $1,500,000 exit fee, all accrued interest, all fees and expenses of the DIP Lenders “restricted for the benefit of the DIP Lenders . . . .” e. Bucket 5, Additional GOB Administrative Claims: Up to an additional $877,000 in GOB Administrative Claims not paid from Bucket 2. Bucket 5 is funded only after Buckets 1 through 4 are fully funded. f. Bucket 6, Additional Case Professional Fees: Up to an additional $1,600,000 in Case Professional Fees not paid from Bucket 3, “restricted for the benefit of the Case Professionals.” Bucket 6 is funded only after Buckets 1 through 4 are fully funded. [DN 2105, pp 7-10]. 42. The DIP 2nd Amendment also provides that: For the avoidance of doubt, payment of all administrative claims remaining after payment of the claims identified in the Funding Split Waterfall (the “Non-GOB Administrative Claims”) shall be paid after the Funding Split Waterfall is fully funded and paid from the Receipts allocated to c(ii) seventh. [DN 2105, p10, emphasis added]. The reference to c(ii)seventh refers to Buckets 1-6.

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43. Based on the terms of the DIP 2nd Amendment, “Non-GOB Administrative Claims” would not be paid until Buckets 1 through 6 were fully funded – and paid out – to the various favored creditors entitled to receive funds from those 6 buckets. 44. Nowhere in the DIP 2nd Amendment did the parties identify any criteria for identifying which administrative expense claims qualified as “GOB Administrative Claims.” 45. At no time did the Debtors or the Committee seek authority from the Court to alter the priority status of administrative claims or to establish criteria for determining which administrative claims should be favored. 46. It now appears that GOB Administrative Claims consisted of any claim the Debtors and/or the Committee decided should be favored or afforded super priority administrative expense status. 47. An Agreed Entry Regarding GEA’s Limited Objection to the Committee’s Retention and Employment of Chipman Brown Cicero & Cole, LLP to Pursue Certain Claims against the Debtors’ Directors and Officers [DN 2282] (the “CBCC Agreed Entry”) was entered pursuant to which the engagement terms for CBCC were modified to remove any reference treatment of the professional fee claims of CBCC as “GOB Administrative Claims” and providing that “GEA reserves all rights with respect to other issues raised in the GEA Objection (e.g., ‘What is a GOB Administrative Claim?’)” GEA’s Objection to the Electrolux 9019 Motion 48. GEA again highlighted its concerns with the out-of-court activities of the Debtors and Committee in its Limited Objection to Motion to Approve Settlement [DN 2959] (the “Electrolux 9019 Objection”). 49. As set forth in the Electrolux 9019 Objection, GEA explained that it did not object to the concept of a settlement with Electrolux or that a resolution of the Electrolux dispute is necessary

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to the completion of these cases, but the proposed settlement not only resolved the litigation with Electrolux, it also indicated that in addition to an immediate cash payment to Electrolux, that it was the intent of the parties to modify the DIP loan to provide Electrolux with an allowed administrative claim in the amount of $4,000,000 with a special heightened priority over similarly-situated administrative creditors with the same priority under the Bankruptcy Code, such as GEA. 50. According to the Motion of the Debtors and the Official Committee of Unsecured Creditors for Entry of an Order (I) Approving Settlement with Electrolux Home Products, Inc. and (II) Granting Related Relief (the “Settlement Motion”) [DN 2945], the DIP Loan was to be amended again to include another new “bucket” in addition to six previously created “buckets” for certain administrative expenses creditors afforded heightened priority status as determined by the Debtors and the Committee (the “DIP 3rd Amendment”). 51. The proposed DIP 3rd Amendment would create a new 7th “bucket” and place $2,500,000 in that bucket for the sole benefit of Electrolux, and grant that bucket a priority greater than other similarly situated administrative expense creditors, such as GEA. Electrolux would also be afforded even greater priority for the remaining $1,500,000 due from estate funds to be paid from the 6th bucket. 52. Ultimately, the parties submitted an Agreed Entry Resolving Limited Objection to Motion to Approve Settlement [DN 2962] (the “Electrolux Agreed Entry”) acknowledging that GEA had raised concerns regarding the Bucket System and that all rights of GEA, to the extent such rights existed, to object to any payments made pursuant to the Bucket System, were preserved and not waived by entry of the order approving the Electrolux Settlement. 53. The Debtors never filed the DIP 3rd Amendment with the Court, so it is unclear whether the parties ever entered into the DIP 3rd Amendment

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The Dismissal Motion Establishes Yet Another Category of Preferred Administrative Expense Claims 54. By the Dismissal Motion, the Debtors seek approval of yet another “bucket” of favored administrative expenses. This time, it is approval of the Wind Down Budget as preferred administrative expenses. 55. The Debtors have provided no justification for preferring the Wind Down expense creditors over any other administrative expense incurred in the case. 56. As described in the United States Trustee’s Objection to Debtors’ Amended Motion for Entry of an Order (I) Dismissing the Debtors’ Chapter 11 Cases; (II) Establishing Case Wind Down Procedures with Respect to Claims Reconciliation, Professional Fee and Final Fee Applications; (III) Directing the Debtor Entities to be Dissolved; and (IV) Granting Related Relief [DN 3181] (the “UST Objection”), the requested relief is contrary to the Supreme Court’s ruling in Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973 (2017). While the proposed treatment of the Wind Down expense creditors does not involving any class skipping, it does treat propose disparate treatment for similarly situated creditors of the same priority and class. The Notice Provided was Insufficient 57. Section 1112(b)(1) provides that a dismissal may only be granted “after notice and a hearing.” 58. The Notice issued on the Dismissal Motion at DN 3171 provides that ‘if no objection is timely filed with respect to the [Dismissal Motion], the Court may enter the Orders granting the relief requested in the Motion and such other relief as may be required without conducting an actual hearing.” WHEREFORE, based upon the foregoing, GEA respectfully requests the Court deny the Dismissal Motion.

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Respectfully submitted this 22nd day of July, 2021, -and- /s/ Wendy D. Brewer Wendy D. Brewer (#22669-49) Phillip A. Martin (KY 88985) FULTZ MADDOX DICKENS PLC Laura M. Brymer (#30989-10) 333 N. Alabama Street, Ste. 350 FULTZ MADDOX DICKENS PLC Indianapolis, IN 46204 101 S. Fifth Street, Ste. 2700 Telephone: (317) 215-6220 Louisville, Kentucky 40202 wbrewer@fmdlegal.com Telephone: (502) 588-2000 Facsimile: (502) 588-2020 pmartin@fmdlegal.com lbrymer@fmdlegal.com Counsel for GEA CERTIFICATE OF SERVICE I HEREBY CERTIFY, that a copy of the foregoing was filed electronically on July 22, 2021. Notice of this filing will be sent to all parties registered to receive such notice by operation of the Court’s electronic filing system. /s/ Wendy D. Brewer Counsel for GEA

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