Cálculo del Peso en rosca

CERTAIN (I) NO LIABILITY CLAIMS, AND (II) MISCLASSIFIED CLAIMS

I, Adrian Frankum, pursuant to 28 U.S.C. § 1746, hereby declare under penalty of perjury that the following is true and correct to the best of my knowledge, information, and belief: 1. I am a Senior Managing Director at Ankura Consulting Group, LLC (“Ankura”) and concurrently serve as the Restructuring Officer of BBGI US, Inc. and its debtor affiliates (collectively, the “Debtors”). In this capacity, I am familiar with the Debtors’ day-to-day operations, books and records, business and financial affairs, and the circumstances leading to the commencement of these chapter 11 cases.

2. I submit this declaration (the “Declaration”) in support of the Debtors’

Second Omnibus (Substantive) Objection to Certain (I) No Liability Claims, and (II) Misclassified Claims (the “Objection”).2

1 _{The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification}

number, as applicable, are BBGI US, Inc. (f/k/a Brooks Brothers Group, Inc.) (8883); Brooks Brothers Far East Limited (N/A); BBD Holding 1, LLC (N/A); BBD Holding 2, LLC (N/A); BBDI, LLC (N/A); BBGI International, LLC (f/k/a Brooks Brothers International, LLC) (N/A); BBGI Restaurant, LLC (f/k/a Brooks Brothers Restaurant, LLC) (3846); Deconic Group LLC (0969); Golden Fleece Manufacturing Group, LLC (5649); RBA Wholesale, LLC (0986); Retail Brand Alliance Gift Card Services, LLC (1916); Retail Brand Alliance of Puerto Rico, Inc. (2147); 696 White Plains Road, LLC (7265); and BBGI Canada Ltd. (f/k/a Brooks Brothers Canada Ltd.) (4709). The Debtors’ corporate headquarters and service address is 100 Phoenix Ave., Enfield, CT 06082.

3. I am over the age of eighteen and am authorized by the Debtors to submit this Declaration. Except as otherwise indicated, the facts and all statements in this Declaration are based on my personal knowledge, my review (or the review of others under my supervision) of (a) the relevant proofs of claim and/or (b) the official register of claims filed in the chapter 11 cases. If called as a witness, I could and would competently testify to the facts set forth in this Declaration.

4. The proofs of claim subject to the Objection were carefully reviewed and analyzed in good faith using due diligence by appropriate personnel of the Debtors, those familiar with the Debtors’ books and records, and the Debtors’ professionals.

No Liability Claims

5. Based on my review and analysis of the No Liability Claims listed on Schedule 1 to the Proposed Order, and as discussed in detail below, the Debtors have no liability on each of the No Liability Claims.

6. Claim #600 (Kurabo Industries Ltd.). Claimant asserts a secured claim for $125,439.24 related to “Finished Fabric” and “Air Charges”. Attached to the claim is a copy of a “Fabric Purchase Order”. However, the purchase order bears the letterhead of PT. Eratex Djaja Tbk. (“PT Eratex”) and directs shipment to PT Eratex’s address in Indonesia, not the Debtors. The documentation references Brooks Brothers as the ultimate buyer, but the order is from PT Eratex. Based on the claim’s attachments and a review of the Debtors’ books and records, the Debtors have no privity with the claimant and owe no liability on the claim to the claimant.

7. Claim #85 (Nueces County). Claimant asserts a secured claim for $15,365.73 for estimated ad valorem taxes for tax year 2020. However, in January 2019 the

Debtors closed the applicable store referenced by the claim’s attached tax statement and terminated the lease therefor. As a result, the Debtors are not responsible for ad valorem taxes for that period. 8. Claim #1457 (County of Denton, Texas). Claimant asserts an administrative claim for $925.70 for estimated property taxes for tax year 2021. However, the Debtors rejected the lease as of September 30, 2020. See D.I. 691 (rejection order), Ex. 1 at 2. As a result, the Debtors are not responsible for ad valorem taxes for that period.

9. Claim #1444 (County of Hays, Texas). Claimant asserts an administrative claim for $7,098.63 for estimated property taxes for tax year 2021. However, the Debtors assumed and assigned to the Buyer the lease for the applicable premises as of December 23, 2020. See D.I. 851 (assumption notice), Ex. 1 at 8. As a result, the Debtors are not responsible for ad valorem taxes for that period.

10. Claim #1445 (County of Williamson, Texas). Claimant asserts an administrative claim for $7,221.82 for estimated property taxes for tax year 2021. However, the Debtors assumed and assigned to the Buyer the lease for the applicable premises as of December 23, 2020. See D.I. 851 (assumption notice), Ex. 1 at 13. As a result, the Debtors are not responsible for ad valorem taxes for that period.

11. Accordingly, based on the foregoing and my understanding of the relevant facts and law, I have determined that the Debtors do not have any liability on account of the No Liability Claims.

Misclassified Claims

12. Based on a review and analysis of the Misclassified Claims listed on Schedule 2 to the Proposed Order, I and my team have determined that each Misclassified Claim

asserts a priority to which it is not entitled. Thus, the column labeled “Modified Claim” is the properly reclassified claim.

13. Claim #668 (Louis G. Amendola). Claimant asserts a priority claim under section 507(a)(5) for $946,920.86, comprising $671,179.44 related to “Pension Plan SERP” and $375,741.86 related to “401k non qualified plan”. As of the Petition Date, the Debtors sponsored the Brooks Brothers, Inc. Supplemental Executive Retirement Plan (the “BB SERP”) and the Retail Brand Alliance Inc. Supplemental Executive Salaried Employees Benefit Plan (together with the BB SERP, the “SERPs”).

14. The claim’s attachments include a statement summarizing the BB SERP benefits. It also attaches an account summary from Fidelity Investments (“Fidelity”) stating that the plan is “a non-qualified plan that is ‘unfunded’ for tax purposes. The sponsor has established a trust that holds the plan’s assets, but these assets are subject to the plan sponsor’s creditors if the plan sponsor becomes insolvent.” The attached statement further notes: “This plan represents an unfunded, nonqualified plan, and no funded account has been established for you. In the event of a bankruptcy or insolvency, you would be an unsecured general creditor of the plan sponsor.” These statements are consistent with the express terms of the SERPs.

15. According to the statement attached to the claim, since January 1, 2020, the claimant contributed $9,310.71 to the SERP and/or other supplemental retirement plans (as described below). In connection with the Debtors’ payments under the interim and final employee wages orders [D.I. 110, 275], the claimant already received approximately $5,000 of pre-petition amounts owed counting towards the combined cap under section 507(a)(4) and (a)(5). Thus, only $8,650 of the claimant’s pre-petition contributions are entitled to priority, if at all.

16. For the reasons noted above, in the Objection, and in the statement attached to the claim, the amounts under the SERPs and related plan are unsecured obligations. Accordingly, the claim should be reclassified as a non-priority unsecured claim, except for $8,650. 17. Claim #914 (Bunzl Retail Services, LLC). Claimant asserts a secured claim for $523,351.21 for “Goods sold, etc.” purportedly secured by the Debtors’ inventory held by claimant. However, after reviewing the Debtors’ books and records and the relevant agreement between the parties, any goods held by the claimant are the claimant’s proprietary goods, not the Debtors’. Therefore, the claim is not secured by collateral and should be reclassified as an unsecured claim.

18. Claim #716 (Cairo Malaga Manufacturing and Embroidery). Claimant asserts a claim for $245,013.88 for “Goods Sold and Imported Fabric for Brooks Brother”. Although the claimant checked “No” for Item 9 on the Proof of Claim (i.e., whether all or part of the claim is secured), the claimant included the total amount of the claim on a line within that part. As a result, the Claims Register shows the claim as secured. The claim attaches no documentation and references no collateral. After reviewing the Debtors’ books and records, the claim is not secured by any collateral and is simply an unsecured claim for goods sold prior to the Petition Date. As such, it should be reclassified as an unsecured claim and the Claims Register corrected.

19. Claim #813 (Mauro Calderan). Claimant asserts a priority claim under section 507(a)(5) for $12,153 related to “Brooks Brothers Supplemental Retirement Savings Plan – Brooks Bros NQ (20958)”. Similar to claim #668 above (see ¶ 14, supra), the claim attaches a statement from Fidelity Investments noting the savings plan is an unfunded, nonqualified plan entitling the participant only to status as a general unsecured creditor.

20. Separate from but related to the SERPs, the Debtors sponsored the Brooks Brothers Supplemental Retirement Savings Plan (the “Supplemental Retirement Plan”). Under the Supplemental Retirement Plan, benefits were to be paid with assets from a non-qualified, deferred compensation arrangement created by the Debtors for their employees. Fidelity also administered the Supplemental Retirement Plan. The trust agreement for the assets supporting the Supplemental Retirement Plan provides:

The principal of the Trust and any earnings thereon shall be held separately and apart from other funds of the Sponsor and shall be used exclusively for the uses and purposes of Participants [in the Supplemental Retirement Plan] and general creditors . . . . Participants and their beneficiaries shall have no preferred claim on, or any beneficial ownership interest in, any assets of the Trust. Any rights created under the [Supplemental Retirement] Plan and this Agreement shall be mere unsecured contractual rights of Participants and their beneficiaries against the Sponsor. Any assets held by the Trust will be subject to the claims of the Sponsor’s general creditors under Federal and state law in the event of the Sponsor’s Insolvency.

Trust Agreement § 2(c). The agreement reiterates that it is an “unfunded plan maintained for the purpose of providing deferred compensation for a select group of management or highly compensated employees for purposes of Title I of the ERISA”. Id. at 1; see also id. § 5(d) (“Unfunded Status of Plan. . . . [N]o Participant will have any preferential claim to or beneficial ownership interest in any asset or investment held in the Trust, and the rights of any Participant under the applicable Plan and this Agreement are solely those of an unsecured general creditor of the Sponsor with respect to the benefits of the Participant under the Plan.”).

21. Pursuant to the Debtors’ wages motion and orders, the Debtors terminated the Supplemental Retirement Plan and, consistent with the Trust Agreement, directed the trustee to liquidate the trust’s assets so they are available for distribution to the Debtors’ general unsecured

creditors. See D.I. 6 (wages motion) ¶¶ 73–76; D.I. 275 ¶ 11 (final wages order authorizing Debtors to terminate plan).

22. The claimant contributed no amounts to the plan during the 180 days prior to the Petition Date or post-petition. For the reasons noted above, in the Objection, and in the statement attached to the claim, the amounts under the Supplemental Retirement Plan are unsecured obligations. As a result, the claim should be reclassified as a non-priority unsecured claim.

23. Claim #499 (Dixiesewing Machine Co.). Claimant asserts an administrative claim under section 503(b)(9) for $174 related to “Goods Sold”. The claim attaches an invoice dated April 6, 2020 noting that the order shipped. After reviewing the Debtors’ books and records, the Debtors received the applicable goods prior to June 18, 2020, which is the 20-day period under section 503(b)(9). As a result, the claim should be reclassified as an unsecured claim. 24. Claim #199 (Doran Manufacturing Corp. of FL). Claimant asserts an administrative claim under section 503(b)(9) for $1,465.34 related to “Goods Sold”. The claim attaches invoices from February and March 2020. After reviewing the Debtors’ books and records, the Debtors received the applicable goods prior to June 18, 2020, which is the 20-day period under section 503(b)(9). As a result, the claim should be reclassified as an unsecured claim.

25. Claim #1278 (Michael A Gulish). Claimant asserts a priority claim under section 507(a)(5) for $70,581.69 related to “Forfeiture of my 401K NQ Supplemental Retirement Savings Plan”. Similar to claim #668 above (see ¶ 14, supra), the claim attaches a statement from Fidelity noting the Supplemental Retirement Plan is an unfunded, nonqualified plan entitling the participant only to status as a general unsecured creditor. The claimant contributed no amounts to the plan during the 180 days prior to the Petition Date or post-petition. For the reasons noted

above, in the Objection, and in the statement attached to the claim, the amounts under the Supplemental Retirement Plan are unsecured obligations. As a result, the claim should be reclassified as a non-priority unsecured claim.

26. Claim #601 (J&Y International Textile Co Ltd). Claimant asserts an administrative claim under section 503(b)(9) for $594,159.19 related to “Goods sold”. The claim attaches a statement of account that identifies numerous invoices. Many of those invoices include an associated “Delivery Date” on the statement of account. The vast majority of those dates are prior to June 18, 2020, which is the 20-day period under section 503(b)(9). Others have no delivery date. A couple of invoices show delivery dates after the Petition Date. After reviewing the Debtors’ books and records, the vast majority of the goods underlying the claim either were not received by the Debtors or were received prior to June 18, 2020. However, $13,971.00 may be entitled to administrative priority for post-petition delivery of goods, but not under section 503(b)(9). As a result, the claim should be reclassified as an unsecured claim except for $13,971.00 that should be reclassified as non-section 503(b)(9) administrative priority, subject to the Debtors’ rights to object on other substantive or non-substantive grounds.

27. Claim #90 (JPMA Global Inc). Claimant asserts an administrative claim under section 503(b)(9) for $103,156.41. The claim attaches several invoices all dated in November 2019. After reviewing the Debtors’ books and records, the Debtors received the applicable goods prior to June 18, 2020, which is the 20-day period under section 503(b)(9). As a result, the claim should be reclassified as an unsecured claim.

28. Claim #538 (Koolspace). Claimant asserts a priority claim under section 507(a)(4) for $13,650 (out of a total $28,250 claim) related to “Retail Real Estate Leasing”. The claim attaches an invoice from February 2020 for “Retail Leasing” activity. Koolspace is a

company providing retail leasing consultant and broker services. Koolspace was not an employee of the Debtors. As a result, and for the reasons stated in the Objection, the claim is not entitled to priority under section 507(a)(4) for wages of the Debtors’ employees and should be reclassified as a non-priority unsecured claim.

29. Claim #857 (Richard Lester). Claimant asserts a priority claim under section 507(a)(5) for $21,866.26 related to “Brooks Brothers Supplemental Retirement Savings Plan with Fidelity, Non-Qualified 20958”. Similar to claim #668 above (see ¶ 14, supra), the claim attaches a statement from Fidelity noting the Supplemental Retirement Plan is an unfunded, nonqualified plan entitling the participant only to status as a general unsecured creditor. The claimant contributed no amounts to the plan during the 180 days prior to the Petition Date or post- petition. For the reasons noted above, in the Objection, and in the statement attached to the claim, the amounts under the Supplemental Retirement Plan are unsecured obligations. As a result, the claim should be reclassified as a non-priority unsecured claim.

30. Claim #1252 (Burrelles Luce). Claimant filed an administrative claim for $477,4963 _{related to “Media Monitoring Services”. The claim attaches invoices for the services}

dated as of March 31, 2020 (for services in March 2020), April 30, 2020 (for services in April 2020), May 31, 2020 (for services in May 2020), and June 30, 2020 (for services in June 2020). After reviewing the Debtors’ books and records, the amounts asserted in the claim are all for pre- petition services. As a result, the claim should be reclassified as an unsecured claim.

31. Claim #1196 (Jonathan Murphy). Claimant asserts a priority claim under section 507(a)(5) for $65,268 related to “Brooks Brothers Supplemental Executive Retirement Plan (SERP)”. The claim attaches a letter regarding the “Brooks Brothers Supplemental Executive

Retirement Plan” and notes the claimant’s early retirement date of July 1, 2020. For the reasons noted above and in the Objection, amounts owed under the SERPs are unsecured obligations of the Debtors. As a result, the claim should be reclassified as a non-priority unsecured claim.

32. Claim #1427 (NILP, LLC). Claimant appears to have filed its Proof of Claim for unsecured amounts owed using an administrative claim form. The documentation attached to that claim notes that NILP, LLC separately filed an administrative claim for $7,655.23, which is Claim #1373. The “Statement” attached to Claim #1427 states that NILP, LLC filed it “as to rejection damages” for the rejection of a lease the Debtors had with NILP, LLC, which damages total the $726,758.21 asserted in the claim. The Debtors rejected the lease with NILP, LLC as of October 31, 2020. See D.I. 787 (rejection order), Ex. 1 at 2. Thus, according to the Debtors’ books and records and the claim’s own attachments, this claim should be reclassified as an unsecured claim as it asserts damages arising from the rejection of a lease of nonresidential real property.

33. Claim #571 (Retail Construction Services, Inc.). Claimant asserts a claim for $292,369.94, of which it asserts $290,501.06 is secured and $1,868.88 is unsecured. The claim’s attachment notes that prior to the Petition Date the claimant renovated one of the Debtors’ leased stores. The attachment also notes the claimant filed a mechanic’s lien for the unpaid portion of the renovation work and filed a notice in the Debtors’ cases regarding same [D.I. 202]. However, the attachment acknowledges that the Debtors do not own the property subject to the lien. In fact, the Debtors have assumed and assigned the relevant lease to the Buyer. See D.I. 851 (assumption and assignment notice), Ex. 1 at 6. Under the APA, the Buyer is obligated to pay any pre-petition cure costs associated with assigned leases. As a result, at a minimum the claim is unsecured as to the Debtors’ liability and should be reclassified as such.

34. Claim #1105 (Mark Shulman). Claimant asserts a priority claim under section 507(a)(5) for $100,000 related to “Pension Plan”. The claim attaches no documentation. After reviewing the Debtors’ books and records, I have determined that the claim is one for amounts under the SERPs and/or the Supplemental Retirement Plan. The claimant contributed no amounts to the SERPs or the Supplemental Retirement Plan during the 180 days prior to the Petition Date or post-petition. For the reasons noted above and in the Objection, amounts under the plans are unsecured obligations. As a result, the claim should be reclassified as a non-priority unsecured claim.

35. Claim #675 (Stephen Walters & Sons Ltd). Claimant asserts an administrative claim under section 503(b)(9) for $100,468.49 related to “Goods sold”. The claim attaches an account statement referencing purchase orders dating back to November 2019 and only as late as March 17, 2020. After reviewing the Debtors’ books and records, the Debtors received the applicable goods prior to June 18, 2020, which is the 20-day period under section 503(b)(9). As a result, the claim should be reclassified as an unsecured claim.

36. Claim #1128 (David Tharp). Claimant asserts a priority claim under section 507(a)(5) for at least $10,304.40 related to “Brooks Brothers Group Inc. SERP – Supplemental Executive Retirement Plan”. According to the claim’s attachments, the claimant left the Debtors’ employ in 1995. For the reasons noted above and in the Objection, amounts under the SERPs are unsecured obligations. As a result, the claim should be reclassified as a non-priority unsecured claim.

37. Claim #365 (The Agency Worx LLC). Claimant asserts a priority claim under section 507(a)(4) for $18,574.64 related to “Service[s] Performed by Consultants”. The claim attaches several pre-petition invoices for various charges related to work and costs associated

with temporary employees provided by the claimant. The claimant is a temporary staffing agency that provided a temporary employee for creative marketing services. As a result, and for the reasons stated in the Objection, the claim is not entitled to priority under section 507(a)(4) for wages of the Debtors’ employees and should be reclassified as a non-priority unsecured claim.

38. Claim #165 (WorkForce Software). Claimant asserts an administrative claim under section 503(b)(9) for $129,149.22 related to “Services sold under contract, Application Managed Services, for SaaS Software.” The claim attaches several pre-petition invoices for “Managed Services” and a copy of an “Application Managed Services Agreement” that notes the claimant provides services to the Debtors under that agreement. As the claim is for services, not goods received by the Debtors, the claim is not entitled to administrative priority under section 503(b)(9) and should be reclassified as an unsecured claim (or administrative priority for any post-petition services).

39. Claim #302 (Victoria Zazzara). Claimant asserts a claim for $3,975 related to “Business expenses owed to Victoria Zazzara incurred from a bedbug infestation on a business trip.” Although the claimant checked “No” for Item 13 on the Proof of Claim (i.e., whether all or part of the claim is entitled to administrative priority under section 503(b)(9)), the claimant included the total amount of the claim on a line within that part. As a result, the Claims Register