Full title: Certificate of service (re:55 Order on miscellaneous motion (first day motion)) filed by DONLIN RECANO & COMPANY INC. (Donlin, Recano & Company Inc) (Entered: 01/26/2021)
Document posted on Jan 25, 2021 in the bankruptcy, 44 pages and 0 tables.
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MINNESOTA
Tea Olive I, LLC d/b/a Stock+Field, Case No.:21-30037
Chapter 11 Case
AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
COUNTY OF KINGS )
I, Sung Jae Kim, declare:
1. I am over the age of 18 years and not a party to this chapter 11 case.
2. I am employed by Donlin, Recano & Company, Inc. (“DRC”), 6201 15th Avenue, Brooklyn, NY 11219.
3. On the 20th day of January, 2021, DRC, acting under my supervision, caused a true and accurate copy of the following:
a. “Interim Order (I) Granting Expedited Relief, (II) Authorizing the Debtor to Assume the Consulting Agreement with Liquidation Consultant, (III) Authorizing and Approving the Conduct of Store Closing Sales, with Such Sales to Be Free and Clear of All Liens, Claims And Encumbrances, (IV) Permitting the Debtor to Abandon Any Property That is Burdensome or of Inconsequential Value, and (V) Granting Related Relief” (Docket No. 55);
b. “December 18, 2020 Letter re Consulting Agreement for Store Closing Program”, attached hereto as Exhibit 1; and
c. “Final Order (I) Authorizing the Debtor to Assume the Consulting Agreement with Liquidation Consultant, (II) Authorizing and Approving the Conduct of Store Closing Sales, with Such Sales to Be Free and Clear of All Liens, Claims And Encumbrances, (III) Permitting the Debtor to Abandon Any Property That is Burdensome or of Inconsequential Value, and (IV) Granting Related Relief”, attached hereto as Exhibit 2,
to be served upon the parties as set forth on Exhibit 3, attached hereto, via First Class U.S.
I declare under penalty of perjury that the foregoing is true and correct to the best of my personal knowledge. Executed this 25th day of January, 2021, Brooklyn, New York.
Sung Jae Kim
Sworn before me this
25th day of January, 2021
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MINNESOTA
Tea Olive I, LLC d/b/a Stock+Field, Case No.: 21-30037
Chapter 11 Case
FINAL ORDER (I) AUTHORIZING THE DEBTOR TO ASSUME THE CONSULTING AGREEMENT WITH LIQUIDATION CONSULTANT, (II) AUTHORIZING AND APPROVING THE CONDUCT OF STORE CLOSING SALES, WITH SUCH SALES TO BE FREE AND CLEAR OF ALL LIENS, CLAIMS AND ENCUMBRANCES, (III) PERMITTING THE DEBTOR TO ABANDON ANY PROPERTY THAT IS
BURDENSOME OR OF INCONSEQUENTIAL VALUE, AND (IV) GRANTING
This case came before the court on the motion of the above-captioned debtor (the “Debtor”) for the entry of a final order (this “Final Order”): (a) authorizing the Debtor to assume the Consulting Agreement, (b) authorizing the Debtor to conduct the Closing Sales in accordance with the Sale Guidelines, with such sales to be free and clear of all liens, claims, and encumbrances, (c) permitting the Debtor to abandon any property of the estate that is burdensome or that is of inconsequential value and benefit to the estate, and (d) and granting related relief (the “Motion”).
Based on the Motion and the record,
FOUND AND DETERMINED THAT:1
A. The Debtor has advanced sound business reasons for assuming the Consulting Agreement (a copy of which is attached to this Final Order as Exhibit 1) as set forth in the Motion
1 Findings of fact shall be construed as conclusions of law and conclusions of law shall be construed as findings of fact where appropriate. See Fed. R. Bankr. P. 7052.
and the record. Assuming the Consulting Agreement is a sound exercise of the Debtor’s business judgement and in the best interest of the Debtor and its estate.
B. The Sale Guidelines, which are attached to the Consulting Agreement as Exhibit D, are reasonable and appropriate, and the conduct of the Sales in accordance with the Sale Guidelines will provide an efficient means for the Debtor to sell the Merchandise and the Offered FF&E, and are in the best interest of the Debtor’s estate.
C. The relief set forth herein is necessary to avoid immediate and irreparable harm to the Debtor and the estate and the Debtor has demonstrated good, sufficient and sound business purposes and justifications for the relief approved herein.
D. The Store Closing Plan is in the best interest of the Debtor’s estate. Proceeding with the Store Closing Plan, including the abandonment of Remaining Property, is a sound exercise of the Debtor’s business judgment.
E. The Dispute Resolution Procedures are fair and reasonable, and comply with applicable law.
F. The entry of this Final Order is in the best interests of the Debtor and the Debtor’s estate, creditors, and interest holders and all other parties in interest herein; and now therefore it is hereby
1. The Motion is granted on a final basis to the extent set forth in this Final Order.
2. The Debtor is authorized and empowered to take any and all further actions as may be reasonably necessary or appropriate to give effect to this Final Order. The failure to specifically include any particular provision of the Consulting Agreement in this Final Order shall not diminish or impair the effectiveness of such provisions, it being the intent of this Court that the Consulting
Agreement and all of its provisions, payments, and transactions, be and hereby are authorized and approved as and to the extent provided for in this Final Order.
3. To the extent of any conflict between this Final Order, the Sale Guidelines, the Consulting Agreement, and any Side Letter (defined below), the terms of any Side Letter shall control as between the parties thereto, the terms of this Final Order shall control over the Sale Guidelines, and the Sale Guidelines shall control over the Consulting Agreement.
I. Authority to Assume the Consulting Agreement.
4. The assumption of the Consulting Agreement by the Debtor pursuant to section 365 of the Bankruptcy Code is approved on a final basis. The Debtor is authorized to act and perform in accordance with the terms of the Consulting Agreement, including making payments required by the Consulting Agreement, including fees and reimbursement of expenses to the Liquidation Consultant, on a weekly basis without the need for any application of the Liquidation Consultant or a further order of this Court. All such payments of fees and reimbursement of expenses shall be free and clear of any and all encumbrances.
II. Authority to Engage in Sales and Conduct Store Closings.
5. The Debtor is authorized, on a final basis, pursuant to sections 105(a) and 363(b)(1) of the Bankruptcy Code, to immediately continue and conduct the Sales at the Closing Stores in accordance with this Final Order, the Sale Guidelines, and the Consulting Agreement, as may be modified by any Side Letters (as defined below) between the Debtor and/or the Liquidation Consultant and the landlords at the Closing Stores.
6. The Sale Guidelines are approved in their entirety on a final basis.
7. The Debtor and/or the Liquidation Consultant, in accordance with this Final Order and the Sale Guidelines subject to any side letters, are authorized to include the sale of Additional
Consultant Goods in the Sale, pursuant to the terms of the Consulting Agreement. All transactions relating to the Additional Consultant Goods are acknowledged by the Debtor to be a true consignment from Consultant to the Debtor under Article 9 of the Uniform Commercial Code and not a consignment for security purposes. The Debtor is authorized to grant the Liquidation Consultant a security interest in the Additional Consultant Goods and proceeds thereof, pursuant to the terms of the Consulting Agreement, which security interest shall be deemed perfected on a final basis pursuant to this Final Order without the requirement of filing UCC financing statements or providing notifications to any prior secured parties (provided that the Consultant is hereby authorized to deliver any notices and file any financing statements and amendments thereto under the applicable UCC identifying (i) the Consultant’s interest in the Additional Consultant Goods and any proceeds thereof as consigned goods thereunder, (ii) the Debtor as the consignee therefor, and (iii) the Consultant’s security interest in such Additional Consultant Goods and proceeds thereof). As part of each weekly reconciliation, the Debtor shall turn over all proceeds from the sale of Additional Consultant Goods to the Consultant, net of any fee payable to the Debtor pursuant to the Consulting Agreement.
8. The Debtor is authorized to discontinue operations at the Closing Stores in accordance with this Final Order and the Sale Guidelines.
9. Subject to paragraph 21 of this order, neither the Debtor nor the Liquidation Consultant nor any of their officers, employees, or agents shall be required to obtain the approval of any third party to conduct the Sales and Store Closings and to take the related actions authorized herein. If any issue arises, the Debtor, the Liquidation Consultant, or any third party may seek an expedited hearing from the Court to resolve such issue.
III. Conduct of the Sales.
10. All newspapers and other advertising media in which the Sales and Store Closings may be advertised and all landlords shall presume that this Final Order is binding authority authorizing the Debtor and the Liquidation Consultant to conduct the Sales and Store Closings pursuant to the Consulting Agreement, including, without limitation, to conduct and advertise the sale of the Merchandise, Offered FF&E and Additional Consultant Goods in the manner contemplated by and in accordance with this Final Order, the Sale Guidelines (subject to any Side Letters), and the Consulting Agreement.
11. The Debtor and Liquidation Consultant are hereby authorized to take such actions as may be necessary and appropriate to implement the Consulting Agreement and to conduct the Sales and Store Closings without necessity of further order of this Court as provided in the Consulting Agreement and the Sale Guidelines (subject to any Side Letters), including, but not limited to, advertising the sale as a “going out of business,” “store closing sale”, “sale on everything”, “everything must go”, or similar-themed sales as contemplated in the Sale Guidelines through the posting of signs (including the use of exterior banners at non-enclosed mall closing locations, and at enclosed mall closing locations to the extent the applicable closing location entrance does not require entry into the enclosed mall common area), use of signwalkers, A-frames, and other street signage, as contemplated in the Sale Guidelines.
12. Except as expressly provided in the Consulting Agreement and the Sale Guidelines (subject to any Side Letters), the sale of the Merchandise, Offered FF&E and Additional Consultant Goods shall be conducted by the Debtor and the Liquidation Consultant notwithstanding any restrictive provision of any lease, sublease, restrictive covenant, or other
agreement relative to occupancy affecting or purporting to restrict the conduct of the Store Closings or the Sales (including the sale of the Merchandise, Offered FF&E and Additional Consultant Goods), abandonment of assets, or “going dark” provisions shall not be enforceable in conjunction with the Store Closings or the Sales. Breach of any such provisions in this chapter 11 case in conjunction with the Store Closings or the Sales shall not constitute a default under a lease or provide a basis to terminate the lease; provided that the Store Closings and Sales are conducted in accordance with the terms of this Final Order, any Side Letter, and the Sale Guidelines. The Debtor and/or Liquidation Consultant and landlords of the Closing Stores are authorized to enter into agreements (“Side Letters”) between themselves modifying the Sale Guidelines without further order of the Court, and such Side Letters shall be binding as among the Debtor, the Liquidation Consultant and any such landlords.
13. Except as expressly provided for herein or in the Sale Guidelines (subject to any Side Letters), no person or entity, including, but not limited to, any landlord, licensor, service providers, utilities, or creditors, shall take any action to directly or indirectly prevent, interfere with, or otherwise hinder consummation of the Sales or the sale of Merchandise, Offered FF&E or Additional Consultant Goods, or the advertising and promotion (including the posting of signs and exterior banners or the use of sign-walkers) of such sales, and all such parties and persons of every nature and description, including, but not limited to, any landlord, licensor, service providers, utilities, and creditors and all those acting for or on behalf of such parties, are prohibited and enjoined from interfering in any way with, obstructing, or otherwise impeding, the conduct of the Store Closings. If and to the extent that any landlord contends that the Debtor or the Liquidation Consultant is in breach of or default under the Sale Guidelines or the terms of this
Final Order, such landlord shall provide at least five days’ written notice, served by email or overnight delivery, on the parties identified in paragraph 22(c)(i)-(iii).
14. In accordance with and subject to the terms and conditions of the Consulting Agreement, the Liquidation Consultant shall have the right to use the Closing Stores and all related Closing Store services, furniture, fixtures, equipment and other assets of the Debtor for the purpose of conducting the Sales, free of any interference from any entity or person, subject to compliance with the Sale Guidelines and this Final Order.
15. All sales of Merchandise, Offered FF&E and Additional Consultant Goods shall be “as is” and final. However, all state and federal laws relating to implied warranties for latent defects shall be complied with and are not superseded by the sale of said goods or the use of the terms “as is” or “final sales.”
16. Pursuant to section 363(f) of the Bankruptcy Code, the Liquidation Consultant, on behalf of the Debtor, is authorized to sell the Merchandise, Offered FF&E and Additional Consultant Goods and all sales thereof, whether by the Liquidation Consultant or the Debtor, shall be free and clear of any and all liens, claims, encumbrances, and other interests; provided, however, that any such liens, claims, encumbrances, and other interests, including any asserted purchase money security interests, shall attach to the proceeds of the sale of the Merchandise and Offered FF&E with the same validity, in the amount, with the same priority as, and to the same extent that any such liens, claims, and encumbrances have with respect to the Merchandise and Offered FF&E, subject to any claims and defenses that the Debtor may possess with respect thereto and the Liquidation Consultant’s fees and expenses (as provided in the Consulting Agreement).
17. The Debtor and/or the Liquidation Consultant (as the case may be) are authorized and empowered to transfer Merchandise and Additional Consultant Goods among, and into, the
Closing Stores in accordance with the Sale Guidelines (subject to any Side Letters), as applicable.
The Liquidation Consultant is authorized to sell the Offered FF&E and abandon the same, in each case, as provided for and in accordance with the terms of the Consulting Agreement and the Sale Guidelines.
18. The Debtor is authorized to abandon any Remaining Property, in accordance with the terms of the Consulting Agreement and the Sale Guidelines (subject to any Side Letters).
20. The Debtor shall use commercial reasonable efforts to remove or cause to be removed any confidential and/or PII in any of the Debtor’s hardware, software, computers or cash registers or similar equipment which are to be sold or abandoned so as to render the PII unreadable or undecipherable. At the conclusion of the Sales, the Liquidation Consultant shall provide the Debtor with written verification that the Liquidation Consultant has not removed, copied, or
transferred any customer PII and that any records containing PII were shredded, erased or otherwise modified to render the PII unreadable or undecipherable.
IV. Dispute Resolution Procedures with Governmental Units.
21. Nothing in this Final Order, the Consulting Agreement, or the Sale Guidelines, releases, nullifies, or enjoins the enforcement of any liability to a Governmental Unit under environmental laws or regulations (or any associated liabilities for penalties, damages, cost recovery, or injunctive relief) to which any entity would be subject as the owner, lessor, lessee, or operator of the property after the date of entry of this Final Order. Nothing contained in this Final Order, the Consulting Agreement, or the Sale Guidelines shall in any way: (a) diminish the obligation of any entity to comply with environmental laws; or (b) diminish the obligations of the Debtor to comply with environmental laws consistent with its rights and obligations as debtor in possession under the Bankruptcy Code. The Store Closings and the Sales shall not be exempt from laws of general applicability, including, without limitation, public health and safety, criminal, tax, (including, but not limited to, the collection of Sales Taxes), labor, employment, environmental, antitrust, fair competition, traffic and consumer protection laws, including consumer laws regulating deceptive practices and false advertising, consumer protection, the sale of gift certificates, layaway programs, return of goods, express or implied warranties of goods, and “weights and measures” regulation and monitoring (collectively, “General Laws”). Nothing in this Final Order, the Consulting Agreement, or the Sale Guidelines, shall alter or affect obligations to comply with all applicable federal safety laws and regulations. Nothing in this Final Order shall be deemed to bar any Governmental Unit (as such term is defined in section 101(47) of the Bankruptcy Code) from enforcing General Laws in the applicable non-bankruptcy forum, subject to the Debtor’s rights to assert in that forum or before this Court that any such laws are not in fact
General Laws or that such enforcement is impermissible under the Bankruptcy Code or this Final Order. Notwithstanding any other provision in this Final Order, no party waives any rights to argue any position with respect to whether the conduct was in compliance with this Final Order and/or any applicable law, or that enforcement of such applicable law is preempted by the Bankruptcy Code. Nothing in this Final Order shall be deemed to have made any rulings on any such issues.
22. To the extent that the sale of Merchandise, Offered FF&E or Additional Consultant Goods is subject to any Liquidation Laws, including any federal, state or local statute, ordinance, rule, or licensing requirement directed at regulating “going out of business,” “store closing,” or similar inventory liquidation sales, or bulk sale laws, laws restricting safe, professional and non-deceptive, customary advertising such as signs, banners, signage, and use of sign-walkers solely in connection with the sale of the Merchandise, Offered FF&E and Additional Consultant Goods, including ordinances establishing license or permit requirements, waiting periods, time limits or bulk sale restrictions that would otherwise apply solely to the sale, the dispute resolution procedures in this section shall apply:
a. Provided that the Sales are conducted in accordance with this Final Order and the Sale Guidelines, the Debtor, the Liquidation Consultant, and the Debtor’s landlords, shall be deemed to be in compliance with any requirements of all county, parish, or municipal or other local government (hereinafter referred to as “Local”) and State requirements governing the conduct of the Sales of the Merchandise, Offered FF&E or Additional Consultant Goods, including but not limited to Local statutes, regulation and ordinances establishing licensing or permitting requirements, waiting periods or time limits, or bulk sale restrictions that would otherwise apply to the Sales and sales of the Store Closure Assets (collectively, the “Liquidation Laws”) of any state or local Governmental Unit (as defined in Bankruptcy Code section 101(27); provided, that the term “Liquidation Laws” shall be deemed not to include any public health or safety laws or any state (collectively, “Safety Laws”), and the Debtor and the Liquidation Consultant shall continue to be required to comply, as applicable, with such Safety Laws and General Laws, subject to any applicable provision of the Bankruptcy Code and federal law, and nothing in this Order shall be deemed to bar Governmental Units (as defined in section
101(27) of the Bankruptcy Code) or public officials from enforcing Safety Laws or General Laws.
b. Within three (3) business days after entry of this Final Order, the Debtor will serve by first-class mail, copies of this Final Order, the Consulting Agreement, and the Sale Guidelines on the following: (a) the Attorney General’s office for each state where the Sales are being held; (b) the county consumer protection agency or similar agency for each county where the Sales are being held; (c) the division of consumer protection for each state where the Sales are being held; and (d) the landlords for the Closing Stores (collectively, the “Dispute Notice Parties”).
c. To the extent that there is a dispute arising from or relating to the Sales, this Final Order, the Consulting Agreement, or the Sale Guidelines, which dispute relates to any Liquidation Laws (a “Reserved Dispute”), the Bankruptcy Court shall retain exclusive jurisdiction to resolve the Reserved Dispute. Following entry of this Final Order, any Governmental Unit may assert that a Reserved Dispute exists by sending a notice (the “Dispute Notice”) explaining the nature of the dispute to: (i) Fredrikson & Byron, 200 South Sixth Street, Suite 4000, Minneapolis, Minnesota 55402, Attn: Clinton E. Cutler & Steven Kinsella, firstname.lastname@example.org, email@example.com; (ii) Tea Olive I, LLC, 2600 Eagan Woods Dr. Suite 120, Eagan, Minnesota 55121, Attn: Kelly Sims, firstname.lastname@example.org; (iii) Tiger Capital Group, LLC, 340 N. Westlake Village, CA 91362, Attn: Mark P. Naughton, email@example.com; (iv) counsel to the Second Avenue Capital Partners LLC, as administrative agent, Riemer & Braunstein LLP, Times Square Tower, Seven Times Square, Suite 2506, New York, NY 10036, Attn: Steven E.
Fox, firstname.lastname@example.org; and (v) the affected landlord. If the Debtor and the Governmental Unit are unable to resolve the Reserved Dispute within 15 days after service of the notice, the Governmental Unit may file a motion with the Bankruptcy Court requesting expedited relief and that the Bankruptcy Court resolve the Reserved Dispute (a “Dispute Resolution Motion”).
d. In the event that a Dispute Resolution Motion is filed, nothing in this Final Order shall preclude the Debtor, a landlord, or any other interested party from asserting (A) that the provisions of any Liquidation Laws are preempted by the Bankruptcy Code, or (B) that neither the terms of the Interim Order or this Final Order nor the conduct of the Debtor pursuant to the Interim Order or the Final Order, violates such Liquidation Laws.
Filing a Dispute Resolution Motion as set forth herein shall not be deemed to affect the finality of the Final Order or to limit or interfere with the Debtor’s or the Liquidation Consultant’s ability to conduct or to continue to conduct the Sales pursuant to Final Order absent further order of the Bankruptcy Court. Upon the entry of the Final Order, the Bankruptcy Court grants authority for the Debtor and the Consultant to conduct the Sales pursuant to the terms of the Final Order, the Consulting Agreement, and the Sale Guidelines and to take all actions reasonably related thereto or arising in connection therewith. The Governmental Unit will be entitled to assert any jurisdictional, procedural, or substantive arguments it wishes with respect to the requirements of its Liquidation Laws or the lack of any preemption of such Liquidation Laws by the Bankruptcy Code. Nothing in the Final Order will constitute a ruling with respect to any issues to be raised in any Dispute Resolution Motion.
e. If, at any time, a dispute arises between the Debtor and/or the Liquidation Consultant and a Governmental Unit as to whether a particular law is a Liquidation Law, and subject to any provisions contained in the Final Order related to the Liquidation Laws, then any party to that dispute may utilize the provisions of subparagraphs (c) and (d) above by serving a notice to the other party and proceeding thereunder in accordance with those paragraphs. Any determination with respect to whether a particular law is a Liquidation Law shall be made de novo.
23. Subject to paragraphs 21 and 22 above, each and every federal, state, or local agency, departmental, or Governmental Unit with regulatory authority over the Sales and all newspapers and other advertising media in which the Sales are advertised shall presume this Final Order is binding authority that no further approval, license, or permit of any Governmental Unit shall be required, nor shall the Debtor or the Liquidation Consultant be required to post any bond, to conduct the Sales.
24. Provided that the Sales are conducted in accordance with the terms of this Final Order, the Consulting Agreement, and the Sale Guidelines, and in light of the provisions in the laws that exempt court-ordered sales from their provisions, the Debtor and Liquidation Consultant shall be presumed to be in compliance with any Liquidation Laws and are authorized to conduct the Sales in accordance with the terms of this Final Order and the Sale Guidelines without the necessity of further showing compliance with any such Liquidation Laws.
25. Nothing in this Final Order, the Consulting Agreement, or the Sale Guidelines releases, nullifies, or enjoins the enforcement of any liability to a Governmental Unit under environmental laws or regulations (or any associated liabilities for penalties, damages, cost recovery, or injunctive relief) to which any entity would be subject as the owner, lessor, lessee, or operator of the property after the date of entry of this Final Order. Nothing contained in this Final Order, the Consulting Agreement, or the Sale Guidelines shall in any way: (a) diminish the obligation of any entity to comply with environmental laws; or (b) diminish the obligations of the
Debtor to comply with environmental laws consistent with its rights and obligations as debtor in possession under the Bankruptcy Code.
V. Other Provisions.
26. The Liquidation Consultant shall act solely as an independent consultant to the Debtor, pursuant to the terms of the Consulting Agreement.
27. The Debtor is authorized and permitted to transfer to the Liquidation Consultant personal information in the Debtor’s custody and control solely for the purposes of assisting with and conducting the Sale and only to the extent necessary for such purposes, provided that Liquidation Consultant removes such personal information from the FF&E prior to the sale or abandonment of the same.
28. Notwithstanding the relief granted herein and any actions taken pursuant to such relief, nothing contained in the Motion or this Final Order shall constitute, nor is intended to constitute: (a) an admission as to the validity, priority, or amount of any particular claim against the Debtor; (b) a waiver of the Debtor’s right to dispute any particular claim on any grounds; (c) a promise or requirement to pay any particular claim; (d) an implication or admission that any particular claim is of a type specified or defined in this Final Order or the Motion; (e) a request or authorization to assume any agreement, contract, or lease, other than the Consulting Agreement, pursuant to section 365 of the Bankruptcy Code; (f) a waiver or limitation of the Debtor’s rights under the Bankruptcy Code or any other applicable law; or (g) a concession by the Debtor or any other party-in-interest that any liens (contractual, common law, statutory, or otherwise) satisfied pursuant to this Final Order are valid and the Debtor and all other parties-in-interest expressly reserve their rights to contest the extent, validity, or perfection or to seek avoidance of all such liens. Any payment made pursuant to this Final Order should not be construed as an admission as
to the validity, priority, or amount of any particular claim or a waiver of the Debtor’s or any other party-in-interest’s rights to subsequently dispute such claim.
29. During the first thirty (30) days of the Sale Term (as defined in the Consulting Agreement), the Liquidation Consultant shall (i) accept the Debtor’s validly issued gift cards, gift certificates and merchandise credits and (ii) honor the Debtor’s refund and exchange program as in effect on the Petition Date.
30. The Liquidation Consultant shall not be liable for sales taxes under its agreement with the Debtor except as expressly provided in the Consulting Agreement and the payment of any and all sales taxes is the responsibility of the Debtor. The Debtor is directed to remit all taxes arising from the Sale to the applicable Governmental Units as and when due, provided that in the case of a bona fide dispute the Debtor is only directed to pay such taxes upon the resolution of the dispute if and to the extent that the dispute is decided in favor of the applicable Governmental Unit. For the avoidance of doubt, sales taxes collected and held in trust by the Debtor shall not be used to pay any creditor or any other party, other than the applicable Governmental Unit for which the sales taxes are collected. The Liquidation Consultant shall collect, remit to the Debtor, and account for sales taxes as and to the extent provided in the Consulting Agreement. This Final Order does not enjoin, suspend, or restrain the assessment, levy, or collection of any tax under state law, and does not constitute a declaratory judgment with respect to any party’s liability for taxes under state law.
31. The Debtor shall provide copies of any reports received from the Liquidation Consultant regarding the Sales to counsel to the Committee promptly after receipt thereof from the Liquidation Consultant.
32. Notice of the Motion as provided therein is deemed good and sufficient notice of such Motion and the requirements of Bankruptcy Rules 6004(a) and 6006(c) and the Local Bankruptcy Rules of this Court are satisfied by such notice.
33. Notwithstanding Bankruptcy Rules 6003, 6004(h), and 6006(d) the terms and conditions of this Order shall be immediately effective and enforceable upon its entry.
34. This Court shall retain jurisdiction with regard to all issues or disputes relating to this Final Order or the Consulting Agreement and any party may seek an expedited determination from the Court concerning any such issue or dispute.
William J. Fisher
United States Bankruptcy Judge
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