case 16-11242-bls doc 449 filed 09/29/16 page 1 of 11 for ... · rit llc, filed its petition. on...
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UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
) In re: )
)
PHOENIX BRANDS LLC, et al,' )
) Debtors. )
)
Chapter 11
Case No. 16-11242 (BLS)
(Jointly Administered) Re: DJ. 433 Hearing Date: October 20, 2016 @ 11:00 a.m. Obj. Deadline: September 29, 2016 @4:00 p.m.
OBJECTION OF THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS TO
DEBTORS' MOTION FOR AN ORDER EXTENDING THEIR EXCLUSIVE PERIODS
TO FILE A CHAPTER 11 PLAN AND SOLICIT ACCEPTANCES THEREOF
The Official Committee of Unsecured Creditors (the "Committee") of the above-
captioned debtors and debtors-in-possession (the "Debtors"), by and through its counsel, Saul
Ewing LLP, hereby objects (the "Objection") to the Debtors' Motion for an Order Extending
Their Exclusive Periods to File a Chapter 11 Plan and Solicit Acceptances Thereof [D.I. 433]
(the "Motion"), 2 and in support of the Objection, respectfully states as follows:
PRELIMINARY STATEMENT
1. The Debtors seek a 120-day extension of the exclusive period to file a chapter 11
plan (the "Exclusive Filing Period"), through and including January 14, 2017. In the
Committee's view, this request is completely inappropriate. As of August 8, 2016, the Debtors
have closed on all three of their asset sales. The Debtors have fully performed under one of their
transition services agreements ("TSA"), and the initial terms of the other two TSAs expire in
early October, 2016. Other than performance under the TSAs, the Debtors have no remaining
operations.
2
The Debtors, together with the last four digits of each Debtor's tax identification number, are: Phoenix
Brands LLC, (4609), Phoenix Brands Parent LLC, (8729), Phoenix North LLC, (no EIN), Phoenix Brands Canada ULC (a Nova Scotia Company), Phoenix Brands Canada Laundry LLC (no EIN), and Phoenix RIT LLC (5149). The address of each of the Debtors is 1 Landmark Square, Suite 1810, Stamford, CT 06901, except Phoenix Brands Canada ULC, which is Box 50, 1 First Canadian Place, Toronto, Ontario, Canada
M5X 1B8.
Capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Motion.
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2. There are no exotic issues to be dealt with through the liquidating plan in these
cases, certainly not that would justify a 120-day extension. These estates are ripe for "pot plan"
with an analyses of whether there should be some form of substantive consolidation, which
requires some claim analysis but should not be unduly time consuming. In no event should the
remaining tasks here take four months and since tasks tend to take the time allotted, this runs the
risk of unneeded delay, cost, and an erosion of creditor recoveries. The Debtors cannot credibly
claim to need an additional 120 days to propose a "pot plan."
3. Recognizing the benefit for speed at the July 18, 2016 sale hearing, the Debtors
represented to the Court and the Committee that their goal was to confirm a plan coterminous
with the TSAs.
4. Given the cost of administration necessitated by delay, the Committee does not
believe it is in the creditors' best interest to continue to allow the Debtors to have exclusive
control over the plan process for an additional 120 days. Because the Debtors cannot
demonstrate sufficient cause for the requested extension of the Exclusive Filing Period, the
Committee respectfully requests that the Debtors should, at most, be given only a 60-day
extension. If more time is needed after that 60-day extension and there is no consent, the parties
should have to return to Court to consider why and whether exclusivity should be terminated to
allow the Committee to move forward.
BACKGROUND
I. The Bankruptcy Cases
5. On May 19, 2016, Debtors Phoenix Brands LLC, Phoenix Brands Parent LLC,
Phoenix North LLC, and Phoenix Canada ULC commenced their cases by filing voluntary
petitions for relief under chapter 11 of the Bankruptcy Code. On June 1, 2016, Debtor Phoenix
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RIT LLC, filed its petition. On June 17, 2016, Debtor Phoenix Brands Canada Laundry LLC
filed its petition.
6. Pursuant to the Order Authorizing Joint Administration of Related Chapter 11
Cases for Procedural Purposes Only [D.I. 44], the Order (A) Authorizing Joint Administration
of Related Chapter 11 Cases for Procedural Purposes Only and (B) Applying Certain Orders in
the Chapter 11 Cases of Phoenix Brands LLC and its Affiliated Debtors to the Chapter 11 Case
of Phoenix RIT LLC [D.I. 127], and the Order (A) Directing Joint Administration of Related
Chapter 11 Cases for Procedural Purposes Only and (B) Applying Certain Orders in the
Chapter 11 Cases of Phoenix Brands LLC and its Affiliated Debtors to the Chapter 11 Case of
Phoenix Brands Canada Laundry, LLC [D.I. 255], the chapter 11 cases of the Debtors are jointly
administered and are consolidated for procedural purposes.
7. The Debtors continue in possession of their properties and continue to operate and
manage their businesses as debtors-in-possession pursuant to sections 1107(a) and 1108 of the
Bankruptcy Code. No request for the appointment of a trustee or examiner has been made in
these chapter 11 cases.
8. On June 1, 2016, the Office of the United States Trustee appointed the Committee
pursuant to section 1102(a)(1) of the Bankruptcy Code [D.I. 94].
9. On July 18, 2016, this Court entered the following orders approving three sales of
the Debtors' assets: an order [D.I. 283] approving the sale of the Debtors' "Canadian Laundry"
assets to Lavo, Inc. ("Lavo"), an order [D.I. 284] approving the sale of the Debtors' "US
Laundry" assets to U.S. Nonwovens Corporation ("US Nonwovens"), and an order [D.I. 285]
approving the sale of the Debtors "RIT" assets to Nakoma Products, LLC ("Nakoma"). On
August 1, 2016, the Debtors' sale of the RIT assets closed, on August 2, 2016, the sale of the
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Debtors' Canadian Laundry assets closed, and on August 8, 2016, the sale of the Debtors' US
Laundry assets closed.
10. In each of the asset sales, the Debtors and the respective purchaser entered into a
TSA. The Lavo TSA terminated September 1, 2016. The last day of the initial term of the U.S.
Nonwovens TSA is October 1, 2016, and the last day of the initial term of the Nakoma TSA is
October 7, 2016. 3
II. The Plan Process and the Motion
11. After the sales closed, the Committee immediately focused on getting these cases
through plan confirmation. The Committee saw these cases as the perfect candidates for a
combined plan and disclosure statement process, as contemplated under this Court's local rules.
12. The Committee was pleased when the Court raised this issue sua sponte at the
July 18, 2016 sale hearing, and was optimistic when, in response, the Debtors represented to the
Court that the Debtors intended to propose a plan for confirmation "at or around" the time of the
expiration of the TSAs in early October 2016:
THE COURT: Let me ask you another question.
DEBTORS' COUNSEL: Yes, Your Honor.
THE COURT: And I don't want to get too far down the lane; I think we
may have had a discussion about this. It's been -- it has become my practice in
sale cases to at least ask the debtor, at the approval of the sale, where you're going
from here. I do understand that there are some additional assets, and I do
understand that there are claims and -- there's process left to this. I'm sure Ms.
Jones has told you that my strong preference —
And, Ms. Levine, you've heard this speech too.
-- is that we move rapidly if circumstances warrant -- and I trust your
judgment in this respect -- but to move forward to a confirmed plan, in a format
that would allow, frankly, all stakeholders to achieve and retain the benefit of the
Both the U.S. Nonwovens TSA and the Nakoma TSA provide an option to extend the initial term, but as of
the date hereof, the Debtors have not provided any written notice to the Committee showing that those
TSAs have been extended.
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productive sale process that's occurred. And I have on many occasions combined disclosure statement and plan. Again, I don't know what the facts are, so if this is
not a case that merits that, then so be it and I'll be guided by the parties. But if
the parties are prepared to move forward promptly, you can fully expect that I will
be a partner in that exercise, with respect to scheduling and moving the matter
forward.
DEBTORS COUNSEL: We appreciate that, Your Honor, and it is our
expectation and intention, working with the committee, to craft a plan shortly and to bring that plan on for confirmation at or around the expiration of the
transition-services agreement.
THE COURT: Terrific, Okay.
Transcript of Proceedings at 55-56, In re Phoenix Brands, LLC, et al., No. 16-11242 (July 18,
2016) (emphasis added).
13. After the July 18, 2016 sale hearing, the Committee urged the Debtors to quickly
move forward with a combined plan and disclosure statement. The Committee raised the issue at
the August 9, 2016 hearing:
COMMITTEE'S COUNSEL: [W]e're hoping to move quickly through
plan and disclosure statement, if some of the -- and we heard Your Honor say
there's a possibility that you would think kindly of a combined plan and
disclosure statement, so it's just a —
THE COURT: You heard me say it before.
COMMITTEE'S COUNSEL: -- pot of money.
Transcript of Proceedings at 9, In re Phoenix Brands, LLC, et al., No. 16-11242 (August 9,
2016) (emphasis added).
14. At that August 8, 2016 hearing, the Debtors repeated their intention to pursue a
combined plan and disclosure statement process, with confirmation to occur at or near the
expiration of the TSAs (i.e., early October 2016):
DEBTORS' COUNSEL: So with the sales done, the TSAs now in process,
the employee-plan motion about to be filed, that leaves us just with the plan of
reorganization.
THE COURT: Um-hum.
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DEBTORS' COUNSEL: We've already started initial conversations with
the committee, about what the shape of a plan is going to look like. As Ms.
Levine said and the debtors support, we're going to try to accomplish this through
a combined plan and disclosure statement so that we can save the estate time and
money. And also –
THE COURT: Um-hum.
DEBTORS' COUNSEL: -- I think time is of the essence here. We have a
sixty-day window. It would be -- while aspirational, I think we would love to be
before Your Honor at some point towards the end of that window, on
confirmation, if we can get there, so that the plan is coterminous with the TSA.
And we can shift whatever post-TSA operations and post-TSA workouts can be
done, to whatever entity is going to survive, whatever plan that we get to.
Id. at 11-12 (emphasis added). And the Court commented:
THE COURT: But again, to me, the goal here is -- and I hear it loud and
clear from Ms. Levine – is preserving as much value for distribution to
stakeholders as possible. And getting out of bankruptcy is -- time is money in
these cases. And there's just a big difference between being in for two months and
being in for four months.
Id. at 14.
15. After the last asset sale closed on August 8, 2016, the Committee again urged the
Debtors to quickly move these cases toward confirmation. On August 12, 2016, the Debtors
represented to the Committee that they had begun drafting the plan and disclosure statement. In
the weeks since that representation, the Committee has regularly followed up with the Debtors
on plan issues, but the Debtors have not yet provided a draft plan.
16. Compounding the Committee's frustration is the inappropriately broad relief
requested in the Motion, which seeks to extend the Debtors' exclusive right to file a plan to
January 14, 2017, and to extend the period to solicit votes to March 15, 2017. Contrary to the
Debtors' prior representations to the Committee and the Court—that they will seek to confirm a
plan in the fall of 2016—the Debtors are now, through the Motion, looking to push confirmation
back until winter or spring 2017.
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OBJECTION
17. The Bankruptcy Code affords a debtor an exclusive 120-day period within which
to propose a chapter 11 plan. 11 U.S.C. § 1121(b). Under section 1121(d), a bankruptcy court
may increase the debtor's exclusivity period beyond the initial 120 days, but only "for cause."
11 U.S.C. § 1121(d); see also First Am. Bank of N.Y. v. Southwest Gloves & Safety Equip., Inc.,
64 B.R. 963, 965 (D. Del. 1986) (section 1121(d) allows the bankruptcy court flexibility to
reduce or extend exclusivity). The Bankruptcy Code does not define "cause," but the legislative
history, as amplified by decisional authority, indicates that the following nine factors are relevant
to the determination of whether exclusivity should be extended:
(1) the size and complexity of the case; (2) the necessity for sufficient
time to permit the debtor to negotiate a plan of reorganization and
prepare adequate information; (3) the existence of good faith progress
toward reorganization; (4) the fact that the debtor is paying its bills as
they become due; (5) whether the debtor has demonstrated reasonable
prospects for filing a viable plan; (6) whether the debtor has made
progress in negotiations with its creditors; (7) the amount of time which
has elapsed in the case; (8) whether the debtor is seeking an extension
of exclusivity in order to pressure creditors to submit to the debtor's
reorganization demands; and (9) whether an unresolved contingency
exists.
In re Borders Group, Inc., 460 B.R. 818, 822 (Bankr. S.D.N.Y. 2011) (citing In re Adelphia
Communs. Corp., 352 B.R. 578, 587 (Bankr. S.D.N.Y. 2006)).
18. The legislative history also demonstrates that Congress disfavors "undue
extension[s]" that result in "excessively prolonged and costly delay, to the detriment of
creditors." See H.R. Rep. No. 103-835, at 36 (1994), reprinted in 1994 U.S.C.C.A.N. 3340,
3344 (1994); see also Bankruptcy Amendments Act of 1994: Hearing on S. 540 Before Subcomm.
on Econ. and Comm. and the Comm. of the Judiciary, 103rd Cong. (Aug. 17, 1994) (statement of
Philip S. Corwin, Director & Counsel, Am. Bankers Assoc.) ("We believe that in too many cases
the courts have abused their discretion under [the 'for cause'] standard and have been too lenient
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in granting extensions of exclusivity. . . ."). In fact, "both the language and the purpose of
[section 1121(d)] require that an extension not be granted routinely." In re Pine Run Trust, Inc.,
67 B.R. 432, 434 (Bankr. E.D. Pa. 1986); see United Say. Ass 'n v. Timbers of Inwood Forest
Assocs., Ltd. (In re Timber of Inwood Forest Assocs., Ltd.), 808 F.2d 363, 372 (5th Cir. 1987),
aff'd, 484 U.S. 365 (1988) ("Section 1121 was designed, and should be faithfully interpreted, to
limit the delay that makes creditors the hostages of Chapter 11 debtors."); In re Curry Corp., 148
B.R. 754, 755-56 (Bankr. S.D.N.Y. 1992) (holding that courts should not "routinely extend the
exclusive period" upon creditor objection).
19. While the determination as to whether "cause" exists is left to the discretion of the
bankruptcy court, that discretion is "limited by the requirement that cause be shown." In re
Perkins, 71 B.R. 294, 298 (W.D. Tenn. 1987). The debtor bears the burden of proving that
"cause" exists. See, e.g., In re Newark Airport/Hotel Limited Partnership, 156 B.R. 444, 451
(Bankr. D.N.J. 1993). And, even if "cause" exists, a bankruptcy court may still deny an
extension of exclusivity in cases where, for example, "the debtor has delayed in arriving at an
agreement or is attempting to pressure other parties to yield to a position which is necessarily
prejudicial." In re Sharon Steel Corp., 78 B.R. 762, 765 (Bankr. W.D. Pa. 1987).
20. Given the cost of administration and delay, the Committee does not believe it is in
the creditors' best interest to continue to allow the Debtors to have exclusive control over the
plan process for the time period requested. The Debtors have made no measurable progress
toward a plan since the closings of the sales, and should only be given—at most—a 60-day
extension, rather than the requested 120 days. Because the Debtors cannot demonstrate
sufficient cause for the requested extension of the Exclusive Filing Period, the Committee
respectfully requests that the Motion be denied.
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21. The relevant factors weigh against granting the Debtors' Motion. First, these
cases are not large or complex, certainly not large or complex enough to justify the requested
extension. There are no exotic issues to negotiate in a plan. All that remains are normal, "run of
the mill" issues that arise in any chapter 11 case.
22. Second, the Debtors have had more than sufficient time to attempt to propose a
plan of liquidation—or at the very least, outline the basic terms of a plan to the Committee—and
have not done so. The Debtors need only to complete performance under the TSAs, allocate the
purchase price, analyze the limited number of claims asserted against the Debtors' estates (only
116 proofs of claim, many of them duplicative, were filed by the bar date), and estimate a
proposed distribution to holders of allowed general unsecured claims. Accordingly, there is no
need to permit the Debtors any more time to prepare a plan of liquidation.
23. As to the third factor (good faith progress toward reorganization or, in this case,
liquidation), the Debtors have done very little to move the plan process forward. The Debtors
should, at most, be given a brief 60-day extension, and if no progress is made by then, the
Debtors should hand off the plan process to the Committee. This factor is particularly compelling
when it is the Committee's constituents who are awaiting payment and who are footing the bill
for the costs of administration of these cases.
24. The fourth factor (a debtor paying its bills as they come due) is largely irrelevant,
as the Debtors, after expiration of the remaining two TSAs, will no longer be running an
operating business.
25. The fifth (reasonable prospects for filing a viable plan) and sixth (progress in
negotiations with creditors) factors, taken together, both weigh against a long extension of
exclusivity. The Debtors have not proposed a plan to the Committee or to any other constituency
and, therefore, their prospects for pursuing a viable plan are unknown. The Committee is
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confident, however, that a simple, straight-forward plan of liquidation will win the support of
creditors. While the Debtors have engaged in some negotiations with the Committee, it is
noteworthy that those discussions have been very preliminary, and only came after the
Committee repeatedly hounded the Debtors to engage.
26. The seventh factor (amount of time elapsed in case) favors denial of an extension.
The Debtors have not made any measurable progress toward a plan since the sale closings, and
the requested extension will serve only to further delay the conclusion of these cases.
27. The eighth factor (whether the extension is designed to pressure creditors to
submit to a debtor's demands) is not applicable, as the Debtors have not proposed a plan.
28. Finally, there are no significant "unresolved contingencies" in these cases. The
Committee believes there are no real obstacles to confirming a plan. Any remaining issues in
these cases can and will be addressed post-confirmation.
CONCLUSION
29. The Debtors have had more than enough time to move the plan process along.
They have not done so. The Committee has done everything in its power to move, the plan
process forward and is ready to proceed with a combined plan and disclosure statement process.
The Committee cannot sit back and allow these cases to languish any longer.
30. The Debtors cannot demonstrate sufficient "cause" to warrant the requested
extension of the Exclusive Filing Period, as all of the applicable factors weigh against a finding
of "cause." The Debtors should be given a brief extension, nothing more.
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SAUL EWING LLP
WHEREFORE, the Committee respectfully requests that the Court (i) sustain its
Objection; (ii) deny the Motion; and (iii) grant such other and further relief as may be just and
proper.
Dated: September 29, 2016
By: M Minu (DE Ba il o. 659)
Lucian B. Murley (DE Bar No. 4892)
1201 North Market Street, Suite 2300
P.O. Box 1266 Wilmington, DE 19899
Telephone: (302) 421-6840
Facsimile: (302) 421-5873
-and-
Sharon L. Levine
Dipesh Patel One Riverfront Plaza 1037 Raymond Blvd., Suite 1520
Newark, NJ 07102-5426
Telephone: (973) 286-6713
Facsimile: (973) 286-6821
Counsel to the Official Committee of Unsecured Creditors of Phoenix Brands LLC, et al.
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UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
) Chapter 11
In re: ) Case No. 16-11242 (BLS)
PHOENIX BRANDS LLC, et al.,
) (Jointly Administered)
Debtors.
CERTIFICATE OF SERVICE
I, Lucian B. Murley, hereby certify that on September 29, 2016, I caused a copy of the
Objection of the Official Committee of Unsecured Creditors to Debtors' Motion for an
Order Extending Their Exclusive Periods to File a Chapter 11 Plan and Solicit Acceptances
Thereof to be served on the parties on the attached service list in the manner indicated therein.
SAUL EWING LLP
By:
.V rley (1 Bar No. 4892)
1201 North Market Street, Suite 2300
P. 0. Box 1266 Wilmington, DE 19899
(302) 421-6898
Dated: September 29, 2016
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PHOENIX BRANDS LLC, et al.
Service List
Via Hand Delivery:
Laura Davis Jones, Esquire
Joseph M. Mulvihill, Esquire
Pachulski Stang Ziehl & Jones LLP
919 N. Market Street, 17th Floor
P.O. Box 8705
Wilmington, DE 19899-8705
Hannah McCollum, Esquire
Office of the United States Trustee
for the District of Delaware
J. Caleb Boggs Federal Building
844 King Street, Suite 2007
Wilmington, DE 19801
Robert Dehney, Esquire
Curtis Miller, Esquire
Morris, Nichols, Arsht & Tunnell LLP
1201 N. Market Street, 16th Floor
P.O. Box 1347
Wilmington, DE 19899-1347
Via Electronic Mail and
First Class Mail: Joseph T. Moldovan, Esquire
Robert K. Dakis, Esquire
MoiTison Cohen LLP
909 Third Avenue
New York, NY 10022
Dimitri Karcazes, Esquire
Zach Garrett, Esquire
Goldberg Kohn Ltd.
55 E. Monroe, Suite 3300
Chicago, IL 60603
Via First Class Mail: Phoenix Brands LLC, et al.
Attn: Bill Littlefield
1 Landmark Square #18
Stamford, CT 06901
Madison Capital Funding Attn: James Powell and Kevin Bolash
30 S. Wacker Drive, Suite 3700
Chicago, IL 60606
Fifth Street Asset Management Inc.
Attn: Brian Finkelstein, Michael Shannon,
and Irene Chen 777 W. Putnam Avenue, 3rd Floor
Greenwich, CT 06830
Jeremy W. Ryan, Esquire
R. Stephen McNeill, Esquire
Potter Anderson & Corroon LLP 1313 N. Market Street, 6th Floor
P.O. Box 951 Wilmington, DE 19801
David M. Klauder, Esquire
Bielli & Klauder, LLC
1204 N. King Street
Wilmington, DE 19801
Domenic E. Pacitti, Esquire
Klehr Harrison Harvey Branzburg LLP
919 Market Street, Suite 1000
Wilmington, DE 19801-3062
Rachel B. Mersky, Esquire Monzack Mersky McLaughlin & Browder
1201 N. Orange Street, Suite 400
Wilmington, DE 19801
Joseph H. Huston, Jr., Esquire
Stevens & Lee, P.C. 919 N. Market Street, Suite 1300
Wilmington, DE 19801
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Michael J. Barrie, Esquire
Kevin M. Capuzzi, Esquire
Benesch, Friedlander, CopIan
& Aronoff LLP
222 Delaware Avenue, Suite 801
Wilmington, DE 19801
Ellen Slights, Esquire
U.S. Attorney's Office
1007 N. Orange Street, Suite 700
P.O. Box 2046
Wilmington, DE 19899-2046
John T. Weber, Esquire
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022-4611
Morton R. Branzburg, Esquire
Klehr Harrison Harvey Branzburg LLP
1835 Market Street
Philadelphia, PA 19103
Vadim J. Rubinstein, Esquire
Loeb & Loeb
345 Park Avenue
New York, NY 10154
Christopher Kelly, Esquire
Karl Block, Esquire
Loeb & Loeb 10100 Santa Monica Blvd.
Los Angeles, CA 90067
Kenneth Rosen, Esquire
Paul Kizel, Esquire
Nicole M. Brown, Esquire
Lowenstein Sandler LLP
65 Livingston Avenue
Roseland, NJ 07068
Vicente Matias Murrell, Esquire Pension Benefit Guaranty Corporation
Office of the Chief Counsel
1200 K Street, N.W.
Washington, D.C. 20005-4026
Edmond O'Brien, Esquire Stempel Bennett Claman & Hochberg, PC
675 Third Avenue, 31st Floor
New York, NY 10017
Jeffrey W. Levitan, Esquire
Scott K. Rutsky, Esquire
Proskauer Rose LLP
Eleven Times Square
New York, NY 10036
Lincolnshire Management, Inc.
Attn: President or Legal Department
780 Third Avenue, 40th Floor
New York, NY 10017
Akzo Nobel Surface Chemistry LLC
Attn: Keith Porapaiboon
525 W. Van Buren
Chicago, IL 60640
Berry Plastics Corporation
Attn: Tammy Alstadt
101 Oakley Street
Evansville, IN 47710
DS Containers, Inc.
Attn: Mark J. Baiocchi
1789 Hubbard Avenue
Batavia, IL 60510
International Paper
Attn: Mark Wilkund 1740 International Drive
Memphis, TN 38197
XPO Logistics Worldwide, LLC
Attn: Richard EF Valitutto
4035 Piedmont Pkwy
High Point, NC 27265
Internal Revenue Service Centralized Insolvency Operation
P.O. Box 7346 Philadelphia, PA 19101-7346
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