Case 19-11739-LSS Doc 94 Filed 08/13/19 Page 1 of 21
IN THE UNITED STATES BANKRUPTCI'COURT FOR THE DISTRICT OF DEL~~'~'AItE
In re: Chapter 11 iPic-Gold Class Entertainment, LLC, et ccl.,~ I Case No. 19-11739(LSS)
Debtors. ~ (Jointly Administered)
Objection Deadline: September 4, 2019 at 4:00 p.m.(ET) Hearing Date: September 11, 2019 at 11:00 a.m.(ET)
DEBTORS' APPLICATION FOR ENTRY OF AN ORDER:(I) AUTHORIZING DEBTORS TO EMPLOY AND RETAIN PJ SOLOI~ION AS INVESTMENT BANKER TO THE DEBTORS EFF~CTIV~ NUNCPRO TUNC TO THE PETITION Dr~TE, (II) APPROVING THE T~RI~IS QF THE E`TGAGEMENT LETTER, (III) MODIFYING CERTAIl\T TIME-~~EEPING REQUIREMENTS, AND (IV) GRANTING RELATED RELIEF
The debtors and debtors in possession in the above-captioned cases (collectively, the
"Debtors" or the "Company") hereby apply to the Court (this "Application"), pursuant to sections 327(a) and 328(x) of title 11 of the United States Code (the `Bankruptcy"), Rules
2014(a) and 2016 of the Federal Rules of Bankruptcy Procedure (the `Banlcruptc~") and
Rules 2014-1 and 2016-2(h) of the Local Rules of Bankruptcy Practice and Procedure of the
United States Bankruptcy Court for the District of Delaware (the "Local Rules"), for the entry of an order, substantially in the form attached as Exhibit A (the "Proposed Order")(i) authorizing them to employ and retain PJ SoloYnon, L.P. and/or its affiliate PJ Solomon Securities, LLC
(collectively,"Solomon") as investment banker ~zunc pro tu~~c to the Petition Date (as defined
~ The Debtors in these cha}~ter 11 cases, along with Che last four digits of each Debtor's federal tax identification n~nnbei•, as applicable, are: iPic Entertai~lment l~zc. (9582); iPic-Gold Class Entertainment, LLC(4684); iPic Gold Class Holdings LLC (6315); iPic Media, LLC (0150); iPic Texas, LLC(N/A); and Delray Beach Holdings LLC (1035). The Debtors' }principal place of busi~~ess is 433 Plaza Real, Suite 335, Boca Rato~~, FL 33432.
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below) in accordance with the terms and conditions set forth in that certain amended and restated engagement letter between iPic Entertainment Inc. and Solomon, dated as of July 22, 2019
(the "Engagement Letter"),Z (ii) approving the terms of the Engagement Letter, including the fee and expense structure and the indemnification, contribution, reimbursement and related provisions set forth therein, (iii) modifying certain information requirements of Local Rule 2016-
2, and (iv) granting related relief. In support of this Application, the Debtors submit the declaration of Richard S. Brail (the `Brad Declaration"), attached hereto as exhibit B. In further support of the Application, the Debtors respectfully represent as follows:
.Tnrisdictimi
1. The United States Bankruptcy Court for the District of Delaware (the "Court") has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Ame~zdec~
Stc~ndiizg Order ofRefereizce fi~o~n the United States District Courtfor the District ofDelaware, dated February 29, 2012. This matter is a core proceeding within the meaning of 28 U.S.C.
§ 157(b)(2), and the Debtors confirm their consent pursuant to Rule 9013-1(~ of the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of
Delaware (the "Local Rules") to the entry of a final order by the Court in connection with this
Application to the extent that it is later determined that the Court, absent consent of the parties, cannot enter final orders or judgments in connection herewith consistent with Article III of the
United States Constitution.
2. Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409.
'- A copy of the Engagement Letter is attached as Exhibit l to the Proposed Order.
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The bases for the relief sought herein are sections 327(a) and 328(a) of the
Bankruptcy Code, Bankruptcy Rules 2014(a) and 2016, and Local Rules 2014-1 and 2016-2(h).
Background
4. On August 5, 2019 (the "Petition Date"), each Debtor commenced with this Court a voluntary case under Chapter 11 of the Bankruptcy Code. The Debtors continue to operate their businesses and manage their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. No trustee, examiner, or statutory committee of creditors has been appointed in these chapter 11 cases.
5. The Debtors are a leading provider ofpolished-casual dining in a luxury theater auditorium environment. The Debtors are one of the largest combined movie theater and restaurant entertainment destinations with locations that provide a luxurious movie-going experience at an affordable price. The Debtors provide customers with high-quality, chef-driven culinary and mixology in unique destinations that include premium movie theaters, restaurants, and lounges.
6. Amore detailed description of the Debtors' business and operations, and the events leading to the commencement of these chapter 11 cases, is provided in the Deciccrcation of
Dc~vicl M. Baker ziz Support First Day Motions [Docket No. 4](the "Declaration"), and incorporated herein by reference.
Relief Requested
By this Application, pursuant to sections 327(a) and 328(a) of the Bankruptcy
Code, Bankruptcy Rules 2014(a) and 2016, and Local Rules 2014-1 and 2016-2(h), the Debtors request authority to appoint and retain Solomon as their invesnllent banker in the Debtors'
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chapter 11 cases in accordance with the terms and conditions set forth in the Engagement Letter, effective as of the Petition Date.
Solomon's Qualifications
In light of the size and complexity of these cases, the Debtors require a qualified and experienced investment banker with the resources, capabilities, and experience of Solomon to assist the Debtors in pursuing the transactions that are crucial to the success of the Debtors' cases. Investment banking expertise, such as the expertise provided by Solomon, is a necessary, vital, and critical service that will complement the services provided by the Debtors' other professionals, without duplication. The Debtors believe the retention of Solomon as their investment banker is in the best interest of their estates and will inure to the benefit of all parties in interest because, among other things, Solomon has extensive experience in, and an excellent reputation for, providing investment banking services to debtors in bankruptcy reorganizations and other restructurings.
Solomon, and in particular Mr. Brail, who is the Head of Solomon's Media,
Entertainment &Communications Group, have extensive experience advising companies in the site-based entertainment industry. Mr. Brail's transaction experience includes extensive work in the motion picture exhibition sector and the dine-in theatre segment. He has worked as both sell- side and buy-side advisor for traditional theatres, luxury theatres and dine-in concepts. His transaction experience in the dine-in theatre segment includes advising: Moviehouse &Eatery on its Sale to Cinepolis (2019); VSS-Southern Theatres/Movie Tavern on its sale to Marcus
Corporation (2019); Cobb on its sale of Cinebistro to Cinemex (2017) and Movie Tavern on its sale to VSS/Southern Theatres (2013). His transaction experience in the broader motion picture exhibition sector includes advising: Santikos Enterprises on its sale of certain theatres and
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property far' future development to Regal (Apri12017); Cobb Theatres on its sale to Cinemex
(2017), Marcus Corporation on its acquisition of Wehrenberg Theatt~es (2016); Bow Tie Cinemas on its sale of a collection of theatres to Cinepolis (2016); Starplex Cinemas on its sale to AMC
Entertainment (2016); Kerasotes Theatres on its sale to AMC Entertainment (2010), and Syufy
Enterprises on its sale of Century Theatres to Cinemark USA (2006).
10. Further, Mr. Brail has extensive relationships across the landscape of likely interested parties, including existing theatre operators, site-based entertainment and venue management companies, and financial investors. He also maintains active dialogues with parties who invest opportunistically in transactions with turnaround potential.
11. In addition, Solomon and its senior professionals have extensive experience in the reorganization and restructuring of troubled companies, both out-of-court and in chapter 11 proceedings. Solomon's employees have advised debtors, creditors, equity constituencies, and government agencies in many complex reorganizations and Solomon has been retained as investment bankers in a number of troubled company situations in various jurisdictions, including, among others: hz ~~e Payless Holdi~zgs LLC, Case No. 19-40883 (Bankr.
E.D. Mo. Mar. 19, 2019); ba re Quicksilvef~, Inc., Case No. 15-11880 (Bankr. D. Del. Oct. 28,
2015); In re HHLiquidcrtiorz, LLC (f/lda In re Haggen Holdings, LLC), Case No. 15-11874(KG)
(~Banlcr. D. Del. Oct. 8, 2015); liz re Tl2e Dolan Comp~i~y, Case No. 14-10614 (Bankr. D. Del.
Apr. 15, 2014); h~~ re MESInt'l, Inc., Case No. 09-14109 (Banla~. D. Del. Feb. 26, 2010); bi re
CD Lilzriclmtioi~ Co., LLC, Case No. 09-13038 (Banta'. D. Del. Sept. 15, 2009); b~ i~e Leca~~ Corp.,
Case No. 09-14326 (Banlcr. S.DN.Y. Aug. 25, 2009); In ~~e Bzril~~ing Materials Holding Corp.,
Case No. 09-12074 (Ba1~l~~. D. Del. July 16, 2009); bz re Ecl~l~~e Bcruer Holdi»gs, Inc., Case No.
09-12099 (Bankj-. D. Del. July 7, 2009); In re Pola~~oid Copp., Case No. 08-46617 (Banta-. D.
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Minn. Feb. 9, 2009); bz re Tweeter Hone Entm't Grp., Inc., Case No. 07- 10787 (Banlcr. D. Del.
July 13, 2007); Ifs re M. Fabrikant & Sojas, Inc., Case No. 06-12737 (Bankr. S.D.N.Y. May 25,
2007); bz re Dzarcz Auto. Sys., Inc., Case No. 06-11202 (Bankr. D. Del. Dec. 6, 2006); lip re DaJ~a
Corp., Case No. 06- 10354 (Bankr. S.D.N.Y. March 9, 2006); In re J.L. FreJ~ch Auto. Castings, bzc., Case No. 06- 10119 (Bankr. D. Del. March 22, 2006); and In re AI Realty Marketing of
New Yoriz, Inc., Case No. 01-40252 (Bankr. S.D.N.Y. Sept. 11, 2002). Accordingly, Solomon has significant relevant experience and expertise that will enable Solomon and its professionals to provide necessary investment banking services to the Debtors in these chapter 11 cases.
12. Additionally, Solomon is already familiar with the Debtors' operations. As discussed more fully in the Brail Declaration, the Debtors first engaged Solomon on June 10,
2019. Since that date, Solomon has worked with the Debtors, and the Debtors other professionals, to provide the services outlined below. Thus, Solomon is already knowledgeable about the Debtors' business and is well-suited to provide the investment banking services to the
Debtors that are contemplated by the Engagement Letter and described herein.
Services to Be Provided
13. Subject to the approval of the Court, the contemplated terms and conditions of
Solomon's engagement in these cases are set forth in the Engagement Letter. These terms were negotiated at arm's length between the Debtors and Solomon and reflect the parties' mutual agreement as to the substantial efforts that will be 7-equired by Solomon in this engagement In
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consideration for the compensation contemplated in the Engagement Letter, Solomon has provided and has agreed to provide the following services (the "Services") in these cases:3
(a) Solomon will familiarize itself to the extent it deems appropriate and feasible with the business, operations, properties, financial condition and prospects of the Company and, to the extent relevant, any prospective Buyer (as defined in the Engagement Letter), it being understood that Solomon shall, in the course of such familiarization, rely entirely upon publicly available information and such other information as may be supplied by the Company or such Buyer, without assuming any responsibility for independent investigation or verification thereof;
(b) Solomon will advise and assist the Company in considering the desirability of effecting a Transaction including, but not limited to, assessing the financial issues related to the Transaction and/or developing and evaluating strategic options for the Company, and, if the Company believes any such Transaction to be desirable, in developing a general strategy for accomplishing such Transaction;
(c) Solomon will advise and assist the Company in identifying potential Buyers and will, on behalf of the Company, contact such potential Buyers as the Company may designate;
(d) At the Company's request, Solomon will advise and assist the Company in the preparation of descriptive data concerning the Company, in responding to due diligence requests from prospective Buyers, and in establishing and maintaining an electronic or physical data room for use by prospective Buyers, in each case, based upon information provided by the Company, the reasonableness, accuracy and completeness of which information Solomon will not be required to investigate and about which Solomon will express no opinion;
(e) Solomon will consult with and advise the Company concerning oppo7-tunities for any Sale Transaction (as defined in the
Tl~e stnnmaiy of the Engagement Letter in this Application is qualified in its entirety by reference to the provisions of the Engagement Letter. To Yl~e extent YhaY there is any discrepancy between the s~i~mna~y contained herein a~~d the terms set forth i» the Engagement Letter, the terms of the Engagement Letter shall govern and co»tr~ol. Capitalized terms used in describing the teens of tl~e Engageme~~t Letter, but not otherwise defined herein, shall have the meanings given to s~ich teens in the Engagement Letter.
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Engagement Letter) and periodically advise the Company as to the status of dealings with any potential Buyer on an "as needed" basis;
(~ Solomon will advise and assist management of the Company in making presentations to the Company's Board of Directors or appropriate committee thereof(the "Board") concerning general strategy and any proposed Sale Transaction and will attend any such Board or committee meetings at Company's request;
(g) Solomon will advise and assist the Company in the course of its negotiations of any Sale Transaction with any potential Buyer;
(h) In connection with a Restructuring Transaction (as defined below) and/or a Financing (as defined in the Engagement Letter), Solomon will evaluate the Company's capital structure alternatives, advise on tactics and strategies for negotiating with counterparties and advise on the timing, nature and terms of new securities, other consideration or other inducements to be offered pursuant any such Restructuring Transaction and/or Financing.
(i) Solomon will advise and assist the Company in the execution of and closing under a definitive agreement relating to a Transaction; and
(j) Solomon will render such other financial advisory and investment banking services as may from time to time be agreed upon by Solomon and the Company.
14. To the extent the Debtors request Solomon to perform additional services not contemplated by the Engagement Letter, such services and the fees for such services will be mutually agreed upon by Solomon and the Debtors, in writing, in advance and subject to Court approval.
15. The Services being provided to the Debtors are necessary to assist the Debtors in determining the most optimal and value-maximizing strategy in these chapter 11 cases. The resources, capabilities, and experience of Solomon in advising the Debtors are important to the
Debtors' chapter 11 efforts. As ahighly-qualified investment banker, Solomon fiilfills a critical need, which complements the services offered by the Debtors' other rests-uctui-ing professionals.
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Professional Compensation
16. In consideration of the Services, and as more fully described in the Engagement
Letter, subject to the Court's approval, the Debtors have agreed to pay Solomon the proposed compensation set forth in the Engagement Letter (the "Fee and Expense Structure"), which is summarized below:
(a) The Company and Solomon acknowledge that the Company paid Solomon a retainer fee (the "Retainer Fee") of $100,000 promptly following execution of the Initial Engagement Letter.4 (b) The Company shall pay Solomon a monthly financial advisory fee of $100,000 per month (the "Monthly Advisary Fee"), the first of which shall accrue on the date the Company files for Chapter 11 bankruptcy protection, and thereafter on the first day of the following two months; provided, however, that such Monthly Advisory Fees shall not be payable until the relevant Bankruptcy Court approves Solomon's retention. (c) The Company shall pay Solomon the following fees in respect of a Sale Transaction: (i) At the closing of a Sale Transaction in which the Sale Transaction counterparty is a Third Party Non-Operator, a transaction fee (the "Non- Operator Transaction Fee") of $1.75 million less any Retainer Fee paid and not previously credited. For purposes of this agreement, "Third Party Non-Operator" shall mean a financial sponsor, private equity fund, or any entity that does not own or operate a movie theater.
(ii) At the closing of a Sale Transaction other than a Sale Transaction described in Section 3(c)(i) above, a transaction fee (the "Strategic Transaction Fee" and together with allon-Operator Transaction Fee, each a "Sale Transaction Fee") equal to $2.5 million less any Retainer Fee paid and not previously credited.
(d) If any Restructuring Transaction is consuzl7mated, the Company shall pay Solomon a transaction fee (a "Restnzcturing Transaction Fee") at the.closing thereof, equal to $1.75 million. For the avoidance of douUt, in the event that a Sale Transaction occut~s, whether or not such Sale Transaction occurs within a
4 The Company a»d Solomon previously entered into air engagement IeYCer dated June 10, 2019 (the "Initial En~~ement Letter").
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bankruptcy process (i.e., sale and auction process as contemplated under Bankruptcy Code 363) or outside of a bankruptcy process, the fee payable in respect of such Transaction shall be the Sale Transaction Fee as calculated pursuant to Section 3(c) of the Engagement Letter. (e) If any Financing is consummated, the Company will pay to Solomon a financing fee equal to the applicable percentage below of the gross proceeds of, or if greater, maximum lending or funding commitment under, such Financing (a "Financing Transaction Fee"): (i) 1.0% for senior secured debt (including, without limitation, "debtor in possession" financing);
(ii) 2.5% for junior secured debt or any unsecured debt, including subordinated or mezzanine debt, or unitranche debt (i. e., combining different types of debt, such as senior and subordinated, into one instrument);
(iii) 4.5%for common, preferred or other equity, including, without limitation, securities or debt convertible into equity or' equity-linked debt
(iv) Notwithstanding the terms of the Engagement Letter, Solomon has agreed to cap the amount of any Financing Transaction Fee at $2.0 million, and no Financing Transaction Fee is payable in respect of proceeds received from Retirement Systems of Alabama as debtor-in-possession financing.5
(fl If the proceeds of any such Financing are to be funded in more than one stage, the aggregate proceeds to be raised in all stages of such Financing shall be deemed to have been received, and Solomon shall be entitled to the applicable compensation calculated based on such aggregate proceeds, upon the closing date of the first stage thereof. (g) In addition, the Company and Solomon acknowledge and agree that in no event shall more than one fee be payable to Solomon under Section 3(c) and Section 3(d) of the Engagement Letter. If ~ single transaction involves both a Sale Transaction and a Restructuring Transaction, the highest of the applicable Sale Transaction Fee or Resttucturing Transaction Fee shall be paid to Solomon. However, a Financing Transaction Fee shall be due in addition to a Sale Transaction Fee or Restructuring Transaction Fee, unless the proceeds of such Financing are used as part of a Sale Transaction or a Restructuring Transaction.
In addition, the re~Ierence to "two years" in Sectio» 6(Term) of the Engagement Letter his been replaced with "12 IIIOIIY}l S."
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17. The Company also agrees to reimburse Solomon monthly for its out-of-pocket expenses incurred in connection with the provision of its services, the execution and delivery of the Engagement Letter, and the consummation of any Transaction, including without limitation the fees, disbursements and other charges of Solomon's counsel; provided that the amount of such expenses for which Solomon may seek reimbursement from the Company shall not exceed
$75,000 in the aggregate without the Company's consent (not to be unreasonably withheld).
Out-of-pocket expenses also shall include, but not be limited to, travel and lodging, data processing and communication charges, research and courier services.
18. The Fee and Expense Structure described above is comparable to compensation generally charged by other firms of similar stature to Solomon for comparable engagements, both in and out of bankruptcy. The Fee and Expense Structure is also consistent with Solomon's normal and customary billing practices for cases of this size and complexity that require the level and scope of services outlined above. Solomon and the Debtors believe that the Fee and
Expense Structure is reasonable.
19. In determining the level of compensation to be paid to Solomon and its reasonableness, the Debtors compared Solomon's proposed Fees with the range of investment banking fees in other large and complex chapter 11 cases. The Fee and Expense Structure has been agreed uparl by the parties in anticipation that a substantial commitment of professional tinge and effort will be required of Solomon and its professionals hereunder, that such commitment may foreclose other opportunities for Solomon, and that the actual time and commitment required of Solomon and its professionals to perform its services hereunder tnay vary substantially from week to week or- month to month.
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20. The Debtors submit that Solomon has obtained valuable institutional knowledge of the Debtors' businesses, financial affairs and creditors as a result of providing services to the Debtors before the Petition Date and that Solomon is both well qualified and uniquely able to perform these services and assist the Debtors in these chapter 11 cases.
Moreover, the Debtors believe that Solomon's services will assist the Debtors in a successful outcome of these chapter 11 cases.
21. Solomon's strategic and financial expertise as well as its capital markets knowledge, financing skills, restY-ucturing capabilities and mergers and acquisitions expertise, some or all of which may be required by the Debtors during the term of Solomon's engagement hereunder, were important factors in determining the Fee and Expense Structure. The Debtors believe that the ultimate benefit of Solomon's services hereunder cannot be measured by reference to the number of hours to be expended by Solomon' professionals in the performance of such services.
22. Solomon has not shared or agreed to share any compensation to be paid by the
Debtors with any other person, otheY- than other principals and employees of Solomon, in accordance with section 504 of the Bankruptcy Code.
23. In sum, in light of the foregoing and given the numerous issues which Solomon may be required to address in the performance of its services hereunder, Solomon's commitment to the variable level of time and effort necessary to address all such issues as they arise, and the rnarlcet prices for Solomon's services for engagements of this nature both out-of-court and in a chapter 11 context, the Debtors believe that the Fee and Expense Structure is market-based and fair and reasonable under the standards set forth in section 328(a) of the Banl~~uptcy Code.
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24. Accordingly, as more fully described below, the Debtors believe that this Court should approve Solomon's retention subject to the standard of review set forth in section 328(a) of the Bankruptcy Code and that Solomon's compensation should not be subject to any additional standard of review under section 330 of the Bankruptcy Code.
Indemnification
25. As part of the overall compensation payable to Solomon under the terms of the
Engagement Letter, the Debtors have agreed to certain indemnification and contribution obligations as described in the Engagement Letter and "Exhibit A" attached thereto (the
"Indemnification Letter"). The Indemnification Letter provides, among other things, that the
Debtors will indemnify and hold harmless Solomon and its affiliates and their respective directors, officers, agents, employees, and contt-olling persons subject to customary carve outs
For gross negligence, bad faith, and willful misconduct. Both the Debtors and Solomon believe that such provisions are customary and reasonable for investment banking engagements, both out-of- court and in chapter- 11 cases. The terms of the Indemnification Letter, as modified in the
Proposed Order, are similar to indemnification terms that have been previously approved by the
Com-t and other banlctuptcy courts in other large chapter ll cases.
26. The Debtors and Solomon fully negotiated the terms of the Engagement Leiter and the Indemnification Letter at arm's length, and the Debtors respectfiilly submit that the terms of the Indemnification Letter are reasonable and in the best interests of the Debtors, their- estates, and creditors. Accordingly, as part of this 1~p~lication, the Debtors request that this Court approve the terms of the Indem~zification Letter as may be modified by the Proposed Order.
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No Duplication of Services
27. In addition to this Application, the Debtors have applied, or anticipate that they will apply, to the Court to retain, among others,(a) Pachulski Stang Ziehl &Jones LLP, as bankruptcy counsel,(b) FTI Consulting to provide a Chief Restructuring Officer("CRO") and support personnel for the CRO, and (c) Stretto as claims and noticing agent. The Debtors are mindful of the need to avoid duplication of services and the. Debtors understand that Solomon will use its reasonable efforts to work cooperatively with the Debtors' other professionals to integrate any respective work performed by those professionals on behalf of the Debtors. The
Debtors believe that Solomon's services will not duplicate the efforts of the other professionals retained by the Debtors in these cases.
Record-Keeping Requirements and Modification of Local Rule 2016-2
28. It is not the general practice of investment banking firms, including Solomon, to keep detailed time records similar to those customarily kept by attorneys and required by Local
Rule 2016-2(d). Because Solomon does not ordinarily maintain contemporaneous time records in one-tenth hour (.10) increments or provide or conform to a schedule of hourly rates for its professionals, the Debtors request pursuant to Local Rule 2016-2(h) that Solomon be excused from compliance with the requirements under Local Rule 2016-2(d). Instead, Solomon proposes to maintain records of services rendered for the Debtors, including summary descriptions of those services, the approximate time expended in providing those services (in half-hour (.5) increlnent~s) and the identity of the individuals who provided those services. Solomon will include such records in its fee applications.
29. Solomon will also maintain detailed records of any actual and necessary costs and expenses incurred in connection with the afol-ementioned services. Solomon's applications for
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compensation and expenses will be paid by the Debtors, pursuant to the terms of the Engagement
Letter, in accordance with the procedures established by the Court.
30. Bankruptcy courts in this and other jurisdictions have approved similar waivers to the one requested in this Application. See, e.g., In re M&G USA Corp., Case No. 17-12307
(BLS)(Bankr. D. Del. Dec. 1, 2017); bz re GeizOn Energy, Inc., No. 17-33695(DRJ) (Bankr.
S.D. Tex, July 14, 2017); In re rue21, inc., No. 17-22045(GLT) (Bankr. W.D. Pa. June 28,
2017); In re Answers Holdings, It2c., No. 17-10496(SMB) (Bankr. S.D.N.Y. Apr. 7, 2017); I~z re
UltYcz Petrolezarn Corp., No. 16-32202(MI) (Banlcr. S.D. Tex. June 20, 2016); In re Sports Auth.
Holdings, IJzc., No. 16-10527(MFW) (Bankr. D. Del. Mar. 29, 2016).
Disinterestedness
31. As more fully set forth in the Brail Declaration, prior to ding this application, the
Debtors' counsel provided Solomon with a list of Potential Parties in Interest, which is the same list the Debtors' counsel used to search for potential conflicts in connection with its retention application. Solomon ran the list of Potential Parties in Interest through its database and also sent an email to all Solomon personnel to determine if Solomon had any connections with the
Potential Parties in Interest.
32. Tv the best of the Debtors' knowledge, information and belief as of the date hereof, Solomon (a) is a "disinterested person," as such term is defined in section 101(14) of the
Bankruptcy Code and as required under section 327(a) of the Bankruptcy Code and, as set forth in further detail in the Brail Declaration,(b) does not hold or represent an interest materially adverse to Debtors' estates and (c) has no connection to the Debtor's, their creditors, shareholders or other parties in interest, except as disclosed in the Brail Declaration.
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33. During the 90-day period before the Petition Date, Solomon received no payments in respect of fees and expenses. In accordance with the terms of its Engagement Letter, Solomon received a retainer in the amount of $100,000 on June 10, 2019.
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Basis for Relief
B. The Debtors Should Be Permitted to Employ and Retain Solomon on the Terms of the Engagement Letter Pursuant to Sections 327 and 328 of the Bankruptcy Code
34. The Debtors seek approval of Solomon's retention and compensation structure pursuant to sections 327(a) and 328(a) of the Bankruptcy Code. Section 327(a) of the
Bankruptcy Code provides, in relevant part, as follows:
Except as otherwise provided in this section, the [Debtors], with the court's approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the [Debtors] in carrying out [their] duties under this title.
11 U.S.C. § 327(a).
35. Section 1107(b) of the Bankruptcy Code elaborates upon sections 101(14) and
327(a) of the Bankruptcy Code in cases under chapter 11 of the Bankruptcy Code and provides that "a person is not disqualified for employment under section 327 of[the Bankruptcy Code] by a debtor in possession solely because of such person's employment by or representation of the debtor before the commencement of the case." 11 U.S.C. § 1107(b).
36. Section 328(a) of the Bankruptcy Code provides, in pertinent part, that a debtor
"with the court's approval, play employ or authorize the employment of a professional person under section 327 ... on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, on a fixed or percentage fee basis, or on a contingent fee basis."
11 U.S.C. ~ 328(a). Thus, section 328(a) of the Bankruptcy Code permits the compensation of professionals, including financial advisors and investment banking firms, on more flexible terms that reflect the nature of their services and market conditions.
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37. As discussed above and as set forth in the Brail Declaration, Solomon satisfies the disinterestedness standard in section 327(a) of the Bankruptcy Code. Additionally, given the numerous issues that Solomon may be required to address in the performance of the services for the Debtors pursuant to the Engagement Letter, Solomon's commitment to the variable level of time and effort necessary to address all such issues as they arise and the market prices fot-
Solomon's services for engagements of this nature, the Debtors believe that the terms and conditions of the Engagement letter are fair, reasonable and market-based under the standards set forth in section 328(a) of the Bankruptcy Code.
38. Similar fixed and contingency fee arrangements have been approved and implemented by courts in this and other districts in other large chapter 11 cases. See, e.g., hz re
Cloud Peak ETzergy Inc., Case No. 19-11047(KG) (Bankr. D. Del. June 12, 2019); Iii Ye M&G
USA Corp., Case No. 17-12307(BLS) (Bankr. D. Del. Dec. 1, 2017); In re GenOJz Energy, Iizc.,
No. 17-33695(DRJ) (Banlcr. S.D. Tex, July 14, 2017); bz re r~ue21, hzc., No. 17-22045(GLT)
(Bankr. W.D. Pa. June 28, 2017); ha re Answers Holdings, bzc., No. 17-10496(SMB) (Bankr.
S.D.N.Y. Apr. 7, 2017); Iii re Ultra Peti~oleu~n Corp., No. 16-32202(MI) (Banlcr. S.D. Tex. June
20, 2016); Iia i~e Sports Auth. Holcliizgs, Inc., No. 16-10527(MFW) (Banlcr. D. Del. Mar. 29,
2016); hz i~e Alpha Natitrc~l Res., bze., No. 15- 33896(KRH) (Banlcr. E.D. Va. Sept. 17, 2015); In re Alle~~ Sys. Grp., Inc., No. 15-10332(KJC) (Banlcr. D. Del. Mar. 19, 2015); h2 ~-e Nll Holcli~~gs,
Inc., No. 14-12611 (SCC)(Banlcr. S.DN.Y. Oct. 22, 2014); Iii re Geolci~~~etics b7c., No. 13-10472
(KJC)(Banlcr. D. Del. Apr. 2, 2013); Iiz re LCI Holding Co., Inc., No. 12-13319(KG) (Banlcr. D.
Del. Jan. 10, 2013).
rocs ~e:azas~o.z ~ys~>~iooi Case 19-11739-LSS Doc 94 Filed 08/13/19 Page 19 of 21
C. Nainc Pro Tu~zc Relief is ~~'arranted
39. The Debtors believe that the employment of Solomon effective izzii~c pro tui2c to the Petition Date is waz-ranted under the circumstances of these cases so Solomon may be compensated for its services prior to entry of an order approving Solomon's retention. Further, the Debtors believe no party in interest will be prejudiced by the granting of the izzanc pro tuizc employment because Solomon has provided, and will continue to provide, valuable services to the Debtors' estates in the interim period.
40. Courts in this and other districts routinely approve fzunc pro tunc employment similar to that requested herein. See, e.g., In re Clozad Peak EizeYgy Inc., Case No. 19-11047
(KG)(Bankr. D. Del. June 12, 2019); In re MSG USA Corp., Case No. 17-12307(BLS) (Bankr.
D. Del. Dec. 1, 2017); bz re GefzOi~ Energy, Inc., No. 17-33695 (DRJ)(Bankr. S.D. Tex, July 14,
2017); Ii2 i-e rLie21, Ii~c., No. 17-22045(GLT) (Bankr. W.D. Pa. June 28, 2017); In re A~Zswers
Holdi~zgs, I~zc., No. 17-10496(SMB) (Bankr. S.D.N.Y. Apr. 7, 2017); Iii re Ultra Petroleum
Corp., No. 16-32202(MI) (Bankr. S.D. Tex. June 20, 2016); In re Sports ~lzith. Holdings, I~ac.,
No. 16-10527(MFW) (Banlcr. D. Del. Mar. 29, 2016).
D. The Retention of Solomon Is Critical to the Debtors' Chapter 11 Efforts.
41. The Debtors submit that the retention of Solomon is in the best interest of all parties in interest in these cases. Solomon is a preeminent investment banking firm that is intimately familiar with the Debtors' businesses. Denial of the relief requested herein will deprive the Debtors of the assistance of a uniquely qualified investment banking advisor and would be disadvantageous to the Debtors and all parties in interest. The Debtors remain in need of investment banking services to perform analysis, engage the marketplace, and negotiate the terms of one or more potential transactions in an effort to pursue t17e most value-maximizing
19
DOC'S D1~:2?4i7O.? 39566/001 Case 19-11739-LSS Doc 94 Filed 08/13/19 Page 20 of 21
strategy in these cases. Absent Solomon's retention, the Debtors would likely be required to engage a new investment banker who would lack Solomon's understanding of the Debtors' business. Anewly-retained investment banking advisor would require time and resources to get up to speed, which would imperil the Debtors' ability to efficiently determine and execute the appropriate strategy in these cases and create attendant administrative costs for the Debtors' estates.
42. Moreover, comparable investment bankers that the Debtors would require in these cases would likely charge an equal or greater amount of fees. Based on services performed to date, Solomon has been integral to preparing the Debtors for these cases. Based on the foregoing, the Debtor's submit they have satisfied the requirements of the Bankruptcy Code, the Bankruptcy
Rules, and the Local Rules to support entry of an order authorizing the Debtors to retain and employ Solomon in these cases on the terms described herein and in the Engagement Letter.
Notice
43. Notice of this Application will be provided to the following pa~~ties, or, in lieu thereof, their counsel, if known:(i) the Office of the United States Tnistee; (ii) each of Debtors' thirty (30) largest unsecured creditors on a consolidated basis; (iii) counsel for the Debtors' prepetition and postpetition lenders; and (iv) parties requesting notice pursuant to Banla-uptcy
Rule 2002. The Debtors submit that no other or further notice need be provided.
No Prior Request
44. No prior request for the relief sought herein has been made to this Court or any other' court.
[Remainder of page left blan,lc]
20
~~ocs nr.:z?as~o.z 3~se~~iooi Case 19-11739-LSS Doc 94 Filed 08/13/19 Page 21 of 21
WI-IEREFORE, the Debtors res}~ectfully request that the Cout-t enter the Pf•oposed
Order and grant such other• and fw-ther relief as may be appropriate.
Respectfully submitted,
Dated: August 13, 2019 /s/ Hamid H shemi Chief Executive Officer•
?~
DOCS DI=::224570? 3966/001 Case 19-11739-LSS Doc 94-1 Filed 08/13/19 Page 1 of 3
I~1 THE UNITED STATES BANKRUPTCY COURT FOR THE DI~TRIC'T OF DELA~'~'ARE
In re: I Chapter 11 iPic-Gold Class Entertainment, LLC, et c~l.,~ Case No. 19-11739(LSS)
Debtors. ~ (Jointly Administered)
Objection Deadline: SeptemUer 4,2019 at 4:00 p.m.(ET) Hearing Date: September 11, 2019 at 11:00 a.m.(ET) .
NOTICE OF DEBTORS' APPLICATION FOR ENTRY OI' AN ORDER:(I) AUTHORIZING DEBTORS TO EMPLOY r~ND RETAIN PJ SOLOMON AS INVESTMENT BANKER TO THE DEBTORS EFFECTIVE NUNCPRO TUNCTO THE PETITION DATE,(II) APPROVING TIE TERMS OF THE ENGAGEI~'IENT LETTER,(III) MODIFYING CERTAIN TIi~T~-KEEPING REQUIREMENTS,AND (IV) GRANTING RELATED RELIEF
TO: (i) the Office of the United States Trustee; (ii) each of Debtors' thirty (30) largest unsecured creditors on a consolidated basis; (iii) counsel for the Debtors' prepetition and postpetition lenders; and (iv) parties requesting notice pursuant to Bankruptcy Rule 2002.
PLEASE TAKE NOTICE that on August 13, 2019, the above-captioned debtors and debtors in possession (collectively, the "Debtors"), filed the attached Debtors' AppliccztioJz foi~ Ent y ofcan Order: (I) Aut7~of~izi~zg Debtors to Employ mz~~ Retaiiz PJSoloi7tioiz czs bavesti~zent
Baizlzer to the Debtors Effective Ni.~izc Pi~o Ti~nc to the Petitioiz Dcite, (II) Approving the Terns of the E~zgagement Letter, (III) Modifying Cei^taiiz Tine-Keeping Regz~ii^enze~zts, card (IV) Gra~ztii~g
Relc~tecl Relief(the "Application") with the United States Bankruptcy Court for the Disn•ict of
Delaware, 824 Market Street, 3rd Floor, Wilmington, Delaware 19801 (the `Bankruptcy").
~ The Debtors in these chapter 1 l cases, along with the last four digits of each Debtor's federal tax idei~tific~tion number, as applicable, are: iPic Entertaii~mei~t Inc.(9582); iPic-Gold Class Entertai~~ment, LLC (4684); iPic Gold Class I-Ioldi~~gs LLC (6315); iPic Media LLC (0150); iPic Texas, LLC (N/A); ai d Delray Beach Holdings, LLC (1035). The Debtors' principal place of business is 433 Plaza Real, Suite 335. Boca Raton, FL 33432.
ROCS DI~234935.1 39>66/002 Case 19-11739-LSS Doc 94-1 Filed 08/13/19 Page 2 of 3
PLEASE TAKE FURTHER NOTICE that any t~esponse or objection to the
Application must be filed with the Bankruptcy Court on or before September 4, 2019 at 4:00 p.m.(Eastern Time).
PLEASE TAKE FURTHER NOTICE that at the same time, you must also serve a copy of the response or objection upon: (i) the Debtors, iPic-Gold Class Entertainment,
LLC,433 Plaza Real, Suite 335, Boca Raton, FL 33432-3945, Attu: Hamid Hashemi and Paul
Safran, Esq.; (ii) proposed counsel for the Debtors, Pachulslci Stang Ziehl &Jones LLP, 919 N.
Market Street, 17th Floor, Wilmington, DE 19801, Attn: Peter J. Keane, Esq.
([email protected]) and Pachulslci Stang Ziehl &Jones LLP, 10100 Santa Monica Blvd.,
13th Floor, Los Angeles, CA 90067, Attn: Jeffrey N. Pomerantz, Esq.
([email protected]); (iii) counsel to the committee of unsecured creditors (if any); (iv) counsel for the Debtors' prepetition and postpetition secured lenders, Burr &Forman LLP,420
N. 20th Street, Suite 3400, Birmingham, AL 35203, Attn: Derek F. Meek, Esq.
([email protected]) and Jeffrey T. Baker, Esq.([email protected]) and Burr &Forman LLP,
1201 N. Market Street, Suite 1407, Wilmington, DE 19801, Attn: Richard A. Robinson, Esq.
([email protected]) and J. Cory Falgowslci, Esq.([email protected]); (v) the Office of the
United States Trustee, 844 King Street, Suite 2207, Locicbox 35, Wilmington, DE 19801, Attn:
Benjamin A. Haclanan, Esq.([email protected]); and (vi) any other- party that has filed a request for notices with the Court.
PLEASE TAKE FURTHER NOTICE THAT IF YOU FAIL TO RESPOND IN
ACCORDANCE WITH THIS NOTICE, THE COURT MAY GRANT THE RELIEF
REQUESTED IN THE APPLICATION WITHOUT FURTHER NOTICE OR HEARING.
DOGS UL:2?4)3>.I 39 66/00'' Case 19-11739-LSS Doc 94-1 Filed 08/13/19 Page 3 of 3
PLEE~S~ TAKE FURTHER NOTICE THAT A HEARING TO CONSIDER
THE RELIEF SOUGHT IN THE APPLICATION WILL BE HELD ON SEPTEMBER 11,
2019 AT 11:00 ~.Ni.(EASTERN TIl~'I~) BEFORE THE HONORABLE LAURIE SELBER
SILVERSTEIN, UNITED STATES BANKRUPTCY COURT JUDGE, AT THE UNITED
STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE,824 NORTH
MARKET STREET,6TH FLOOR, COURTROOM NO. 2, WILMINGTON,DELAWARE
19801.
Dated: August 13, 2019 PACHULSKI STANG ZIEHL &JONES LLP
/s/PeteY J. Keczi~e Jeffrey N. Pomerantz(CA Bar No. 143717) Debra I. Grassgreen(CA Bar No. 169978) Peter J. Keane(DE Bar No. 5503) 919 N. Market Street, 17"' Floor P.O. Box 8705 Wilmington, DE 19899 (Courier 19801) Telephone:(302) 652-4100 Facsimile: (302) 652-4400 E-mail: [email protected] [email protected] [email protected]
Proposed Attorizeysfor Debtors c~iacl Debtors in Possessioi2
ROCS D62249i5.I 39166/002 Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 1 of 21
EYHIBIT A
Proposed Order
DOGS DL:224570.2 3956G/001 Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 2 of 21
IN THE UNITED ST~iTES BANKRUPTCY COURT FOR THE DISTRICT OF DELA~~ARE
In re: Chapter 11 iPic-Gold Class Entertainment, LLC, et al.,~ Case No. 19-11739(LSS)
Debtors (Jointly Administered)
ORDER:(I) AUTHORIZING DEBTORS TO EMPLOY AND RETAIN P3 SOLOMON AS INVESTNTENT BANKER TO THE DEBTORS EFFECTI~~E NUNCPRO TUNC TO THE PETITION DATE,(II) ~PPRO~ING THE ~ER~MS OF THE ENG~GENIENT LETTER,(III) MODIFYING CERTt~IN TIRTE-KEEPING REQUIREMENTS, AND (IV) GRANTING RELATED RELIEF
Upon consideration of the application (the "Application")2 filed by the debtors and debtors in possession in the above-captioned cases (collectively, the "Debtors" or the
"Company"), pursuant to sections 327(a) and 328(a) of title 11 of the United States Code (the
"Banlcruptc~"), Rules 2014(a) and 2016 of the Federal Rules of Bankruptcy Procedure (the
`Bankruptcy Rules") and Rules 2014-1 and 2016-2(h) of the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of Delaware (the "Local
Rules"), for the entry of an order (this "Order"): (i) authorizing the Debtors to employ and retain
PJ Solomon, L.P. and/or its affiliate PJ Solomon Securities, LLC (collectively,"Solomon") as investment banker nzuzc~ro tunc to the Petition Date in accordance with the terms and conditions set forth in that certain amended and restated engagement letter between iPic
Entertainment Inc. and Solomon, dated as of July 22, 2019 (the "Engagement Letter"), (ii)
~ 7~~he Debtors in these chapter ll cases, along with tl~e last four digits of each Debtor's federal tax identification number, as applicable, are: iPic E»tertainment Inc.(9582); iPic-Gold Class Entet-tainme~~t, LLC (4684); iPic Gold Class Holdings LLC (6315); iPic Media, LLC (0150); iPic Texas, LLC (N/A); and Delray Beach Holdings LLC (1035). The Debtors' principal }lace of business is 433 Plaza Real, Suite 335, Boca Raton, FL 33432. '- Capitalized terms not otherwise defined herein shall have the meanings given to them iii the Application
DOGS DE2?41702 395GG/9Q1 Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 3 of 21
approving the terms of the Engagement Letter, including the fee and expense structure and the indemnification, contribution, reimbursement and related provisions set forth therein, (iii) modifying certain information requirements of Local Rule 2016-2, and (iv) granting related relief, as more fully set forth in the Application; and upon consideration of the Brail Declaration attached to the Application as Exhibit B; this Court has found that: (i) this Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Ame~zded Standing OrcleY of
Reference from the United States District Court for the District of Delaware, dated February 29,
2012,(ii) this Court is able to issue a final order consistent with Article III of the United States
Constitution, (iii) venue is proper in this district pursuant to 28 U.S.C. §§ 1408 and 1409,
(iv) this is a core proceeding pursuant to 28 U.S.C. § 157(b), and (v) notice of the Application and a hearing on the Application was sufficient under the circumstances, and it appearing that no other or further notice need be provided; and after due deliberation, this Court has determined that the legal and factual bases set forth in the Application establish just cause for the relief granted herein and that the terms and conditions of Solomon's engagement, including but not limited to the Fee and Expense StY-ucture set forth in the Engagement Letter and summarized in the Application, are reasonable as required by section 328(a) of the Bankruptcy Code; and the
Court having found that Solomon is a "disinterested person" as that term is defined in section
101(14) of the Bankruptcy Code; and the Court having found that the relief requested in the
Application is in the best interests of the Debtors, their creditors, their estates and all other parties in interest; and sufficient cause appearing therefore; it is HEREBY ORDERED THAT:
1. The Application is G12ANTED as set forth herein.
2. The Debtors are hereby authorized, pursuant to sections 327 and 328(a) of the
Bat~lcruptcy Code, Banlcru~tcy Rule 2014 and Local Rule 2014-1, to employ and retain Solomon
rocs ~e:z?as~o.=3>>cbiooi Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 4 of 21
as their investment banker- in accordance with the terms and conditions set forth in the
Engagement Letter, effective nzifzc pro tui~c to the Petition Date and to pay fees and reimburse expenses to Solomon on the teens and at the times specified in the Engagement Letter, subject to the modifications set forth herein.
The terms of the Engagement Letter, attached hereto as Exhibit 1, are approved in all respects except as limited or modified herein.
4. All of Solomon's compensation set forth in the Engagement Letter, including, without limitation, the Fee and Expense Structure, is approved pursuant to section 328(a) of the
Bankruptcy Code and Solomon shall be compensated and reimbursed pursuant to section 328(a) of the Bankruptcy Code in accordance with the terms of the Engagement Letter, subject to the procedures set forth in the Bankruptcy Code, the Bankruptcy Rules, the Local Rules and any other applicable orders of the Court.
None of the fees payable to Solomon shall constitute a "bonus" or fee enhancement under applicable law.
Solotnon shall ale fee applications for interim and final allowance of compensation for- services and reimbursement of expenses pursuant to the procedures set forth in sections 330 and 331 of the Bankruptcy Code; pJ~oviclecl, IZowevei~, the fee applications filed by
Solomon shall be subject to review only pursuant to the standard of review set forth in section
328 of the Bankruptcy Code and not subject to the standard of review set forth in section 330 of the Bankruptcy Code.
7. Notwithstanding any provision to the contrary in this Order, the U.S. Trustee shall have the right to object to Solomon's requests) for interim and final compensation based on the reasonableness standard provided in section 330 of the Bankruptcy Code, not section 328(a) of
rocs ~~-_:~~a»o.~ ~~~s~~iooi Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 5 of 21
the Bankruptcy Code. This Order and the record relating to the Court's consideration of the
Application shall not prejudice or otherwise affect the rights of the U.S. Trustee to challenge the reasonableness of Solomon's fees under the standard set forth in the preceding sentence.
Accordingly, nothing in this Order or the record shall constitute a finding of fact or conclusion of law binding the U.S. Trustee, on appeal or otherwise, with respect to the reasonableness of
Solomon's fees.
Solomon is granted a waiver of the information requirements relating to compensation requests set forth in Local Rule 2016-2(d) to the extent requested in the
Application. Among other things, Solomon shall maintain records of services rendered for the
Debtors, including summary descriptions of those services, the approximate time expended in providing those services (in half-hour (.5) increments) and the identity of the individuals who provided those services. Solomon shall include such records in its fee applications.
The Debtors shall be bound by the indemnification, contribution, reimbursement, exculpation and other provisions of the Engagement Letter and will indemnify and hold harmless
Soloillon and the other Indemnified Parties (as defined in the Engagement Letter), pursuant to the Engagement Letter, subject, during the pendency of the cases, to the following:
(a) Solomon shall not be entitled to indemnification, contribution or reimbursement pursuant to the Engagement Letter for services, unless such services and the indemnification, contribution or reimbursement therefore are approved by this Court; (b) The Debtors shall have no obligation to indemnify Solomon, or provide contribution or reiilibursement to Solomon, for any claim or expense that is either': (i) judicially determined (the detei~nination having become final) to have arisen from Solomon's gross negligence, fraud, willful misconduct, breach of fiduciary duty, if any, bad faifll or self-dealing; (ii) for a contractual dispute in which the Debtors allege the breach of Solomon's contractual obligations, unless the Court determines that indemnification, conh~ibution or reimbtu-sement would be pei7nissible pursuant to In re U~~itecl Artists Theatre Co., 315 F.3d 217 (3d Cir. 2003); or (iii) settled prior to a judicial determination as to the exclusions set forth in clauses (i) and (ii) above, but detcnnined by this Court, after notice and a
4 rocs ~~:z~~~s~o.? ~~~~~~~ioo~ Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 6 of 21
hearing, to be a claim or expense for which Solomon should not receive indemnity, contribution or reimbursement under the terms of the Engagement Letter as modified by this Order; and (c) If, before the earlier of(i) the entry of an order confirming a chapter 11 plan in these Cases (that order having become a final order no longer subject to appeal) and (ii) the entry of an order closing these Cases, Solomon believes that it is entitled to the payment of any amounts by the Debtors on account of the Debtors' indemnification, contribution and/or reimbursement obligations under the Fng~gement Totter (as ~n;aodified by this Orderl, including; without limitation; the advancement of defense costs, Solomon must file an application therefore in this Court, and the Debtors may not pay any such amounts to Solomon before the entry of an order by this Court approving the payment. This subparagraph (c) is intended only to specify the period of time under which this Court shall have jurisdiction over any request for fees and expenses by Solomon for indemnification, contribution or reimbursement, and not a provision limiting the duration of the Debtors' obligation to indemnify Solomon. All parties in interest shall retain the right to object to any demand by Solomon for indemnification, contribution or reimbursement. 10. Exhibit A of the Engagement Letter is modified by deleting the following clause from the fourth paragraph: "provided, however, that in no event shall the amount, if any, to be contributed by all Indemnified Parties exceed the amount of the fees actually received by
Solomon hereunder."
11. Notwithstanding any term of the Engagement Letter to the contrary; (i) Solomon shall cap the amount of any Financing Transaction Fee at $2.0 million; (ii) no Financing
Transaction Fee shall be payable in respect of proceeds received from Retirement Systems of
Alabama as debtor-in-possession financing; and (iii) the reference to "two years" in Section 6
(Term) of the Engagement Letter shall be replaced with "12 months."
12. Notwithstanding any Bankruptcy Rule or Local Rule that might otherwise delay the effectiveness of this Order, the terms and conditions of this Order shall be effective and enforceable ilnnlediately upon its entry.
DOGS DE:224570.219566/OOI Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 7 of 21
13. The relief granted herein shall be binding upon any chapter 11 trustee appointed in the cases or upon any chapter 7 trustee appointed in the event of a subsequent conversion of the cases to cases under chapter 7.
14. To the extent that there maybe any inconsistency between the terms of the
Application, the Brail Declaration, the Engagement Letter, and this Order, the terms of this Order shall govern.
15. The Debtors are hereby authorized to take such actions and to execute such documents as may be necessary to implement the relief granted by this Order.
16. This Court shall retain jurisdiction with respect to all matters arising from or related to the implementation and/or interpretation of this Order.
Dated: , 2019
UNITED STATES BANKRUPTCY JUDGE
6
DOGS DE:224570.3 39i6C/001 Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 8 of 21
EXHIBIT 1
Engagement Letter
DOGS DG224570? 39566/001 Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 9 of 21
:~ Pl SOLOM(~I~I
July 22, 2019 i1~iC j~;ntPlt~ttitiPt~~ TtiC. Miner Park 433 .Plaza IZea1 Suite 335 Boca Raton, FL 33432
Attention: Paul Safz~an
Ladies and Gentlemen:
The purpose of this ainelzdecl and restated letter is to confirm the engagement of PJ Solo~iioxl, L:P, and/ox' its affiliate PJ Solomo~i Securities, LLC (collectively, "Solori~o~l") by iPic Entertaiiiznent Inc. (the "Cozn,~anX") as exclusive fi~iancial and strategic advisor• to the Company in connection ~~vith a passible Transactions} (as defined beloti~.T) acid with respect to such other financial matters as to which the Company ai d Solomon 7nay agree in writing du~•ing the term of this agreement. Ior purposes Hereof, the tei-~n "Coznuany" includes affiliates of the Com~iany and any entity that the Company or its affiliates rxaay fo3-m o~~ invest in t~ consummate a Transaction, and shall also include any successor to ot~ assignee of all. or a portion of the assets and/or businesses of the Company ~~iheth.er purst~az~t to a Plan (as defined below) or. other~~ise, The Company and Solomon entered i7ito a previous engagement letter (the "Initial E~i~agement Lettex") dated ,lone 10, 2019. "l~.his agreement ~imends Auld restates the Initial Engagemei3t I_,etter end i:s designed to confirm otlr arr~ngeineiits. The terns of this agreement supersede the tezms of tl~e Initial Engagezzle~it Letter in all respects.
Section 1 Seryiecs to, be Rendered.. Solorilon will perform such of tl~e following financial advisory services as the Company play reasonably x•equest:
(a) Solomon will falnilia~~ize itself to tl~e extent it deems appr~~riate and feasible ~~itl~ the business, opez~ati~ns, properties, financial condition and prospects of the Company and, fia the extent relevant, any prospective Buyer (as de~~led l~eIow), it being understood that Solor~lorl shall, in the course of such far~~zliari;~ation, rely entirely upon ~~ublicly available information atld such other inforr~lation as iz~ay be supplied by the Company o~• such T3~ryer, without assuming anST responsibility for independenti investigation. or ~~erif cation thereo:E;
(b) Solari~on «ill advise alid assist the Company in considering the desirability of ef~ectin~ a Transaction including, but clot limited to, assessilig the ~r~a71cia1 issL~es related to the Transaction andior developing and evaluating strategic optiol~s for the Com~an;~, and, if tihe Colnpan~7 believes any such Tr~arlsaction to be desirable, in developing a general stz•ateg~~ fo7• accomplishing such Transaction; Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 10 of 21
(c) Solomon v~~ill adi~ise and assist the C~lnpany in identifying potential Blryers and will, on behalf of the Com~~any, contact su~li potential Buyers as the Conl~~any znay designate;
(d) ~t the Company's 7~equest, Solomon will advise anct assist the Company in the preparation cif descriptive t~ata concerning the Cozn~any, i~~. resp~nc~ing to due diligence requests from p~•ospective Buyers, and in establishing and maintaining an electronic or physical data room for use by pros~3ectzve Buyers, z~r each case, based upon i~~fol~rnation pr~videci b5~ the Company, the reasonable~less, acct~~~acy and completeness oflvhich infornzatian Solainozz will not be req~lixed fiv iii`J,a~ii~"dfiE' 2iiiC~ u~JJ'~,'~~ ~J~EiC~2 cJ~~J:I?O'.: Venll ~' ~?l'pS~ 22n +J~?1121~:3~
(e) Solozllon will consult ti~vitll and advise the Caulpatly concerning opportutsities for any Sale `Lransaction (as defined below) alzd periodically advise the Company as to t11e status of dealings with any potential Buyer on au "as needed" basis;
(~ Solomon will advise and assist- mazlageiiler~fi of tl-ie Gc~m~~any in maleirig presentations to the Company's Board of Directa~~s of~ appxopriate coln~ni.ttee thereof(the "Boaa•d") concerning gencr•al st~ate~y and at~y prop~seci Sale Transaction grid will atlerid Duly slzch I3c~arci or coznn~ittee tizeetings at Company's ~•ec~uest;
{g) Solomon will advise aiict assist the Compa~ay in Che course of its ue~;otiations ~f any Sale Transaction with any potential Buyer;
(h) In comlectioa~ wit11 a Restructuring- Transactiozi (as defined below) and/ox a Pinancitlg (as clefizied belot~v}, Soloz~iozl will evahlate the ~oinpany's capital structure alternatives, advise fln tactics and strategies for ncgotiatirlg with counte:rpa~•ties and advise on the timing,.ziature and teens of new securities, other consideration or other inducements to be offered pl~~•suant airy such EZestructuring Ta•ansaction and/ar Financing.
(i) Solomon will. advise acid assist the Coirzpany iti the exec~ition of and closing tinder a definitive agreement relating t~ a Trausacti~t~; a1~d
(j) Solomon will. render such ot~ier ~nan~i.al advisory and investme.n~ banking services as lnay fiom tune to tizn.e lie agreed upon. by Solc~zxion and the C~inpany.
It is understood and agreed that nothing; contained hereitl shall constitute an expressed ot~ implied conlrnitnlent by Soloznorl to act in any other capacity or to underwrite, pl~~ce or purchase any financing or securities.
"Sa1e Tral~saction" sha11 mean a transaction ox series oz- coinbil~atio~l of transactions whex•eby, directly or indi7•ectly, control oaf or a tnatei~ial interest in the equ7t~, assets or business of the ConZpany ot• a~iy of its aFtiliates is acquired by or cotribixled with any persoYl ol• entity or any of its affiliates (a "I3nyez."), including without limitatio~l, through a sale o~• exchange of capital stock or other equity interests or assets (including, without li.mitatiozl, by acceptance o_[~ a credit bici), a lease o~• license of assets with oz' without a pu7~chase option, a ~nez-ger o7• consolidation, a s~~i~n-o1-k or split- 011 atender or exchange of~'er, a levez•aged buy-out, a nl.inoz•ity invesixnent, t11e Torna~tion ola joint venture or ~~~u-triers~~ip, or a7.ly other business combinatiUn ~r similar i~~ansaction. Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 11 of 21
"Restructuring "1'ransactioii" means a tx•ansaction ox• series or combination of transactions (other tl2an a Sale Transaction ca~tem~lated by this a~ zeement), whereby, directly a~• indirectly, the Company engages in any z-estructuring (~~c~uding; without limitation, through auq catzcellation, fo~~giveness, retiremezit and/oz• a material mocliCcati.on ~r amendment to the terms, conditi~lls o~• covenants thereof of all o~• a material portion of the Co;~l~any's debt securzties ancUor other in~d~btedness, obligations or I-iabilities (including preferred stack, u~Ei~nc~ed ~~ensidn a7~d retiree medical liabilities, partnership inte~~ests, lease obligatzUns, trade credit facilities and/o~• coz~tz•act or `LC~7"C G't513gdt10i1S) t~~1G "t~~?~I€;~~iG12~"j~ 1ilGiiiCiiit~ ~tii'~iia.ii~ iG a c:,~;til'~itaS(; of Fiji G~i~~i~li7~G transaction, a plan ofreorganizatio~i car lic~uidatic~ii(3 "1'la~i") confirmed pursua~it to Chapter 11, of the Uxuted States Banlc~~~~ptcy Code, or a solicitation of c~tiseirls, waivers, acce~ztances ~r authorizatit~ils.
"Financing" means a private issua~lce, sale or placement of the equity, equity-linked ox debt securities, izlstrume~lts or obligations of fhe Conlpa~iy wit~i one or more lenders and/or investc~~•s eYce~t to the extent issued to existing security holders of the Company in e~ch~nge for their existing seet~rities; oz' any loan ar other financing, incIt~ding, without_ lirnitafiou, any "debtor in possession 1in~icing" or "exit finai~ciug" in connection wifli a case under the Basil ruptcy Code or a righfs offez•ing.
"Transaction" means any Sale "l'r~nsacYi<~n, Restructuri~ig Transaction or FinanciYlg o~• all of them.
Section 2 Infc~rznation Provided by t~~e Co~npan~~.
(a) The Corr~pany shall fi~rnish to Solomon the names of aI] parties v,~ith which it has hacl discussiolis or contacts prior tc~ or on or aftez• the date hez'eof concerning any Tratlsaction.
{b} The Company shall make available (and shall request that each prospective Buyer with which the Company enters into ~le~otiations nial~e available) tc~ Solorz~on all inforinatic~n conce~~ning tl2e bLisincss, assets, ~iabiiities, operations, prospects and financial or other conditiazl ofthe Company or such Buyer, as applicable, that Solomon reasonably requests in cflnnection with tl~e rendering oI' services hereunder, and shall provide Salomon with reasonable access to tlii Company's (~n.d shall ~•equest that such Buye~~ provide zcasonable access to its) officers, directors, employees, independent accot~Yitants and other advisors arld agents as Solorzlon shall deem approp~~iate.
(c) The C~mpzny rec~g~~izes and confirms that Sol~~nc~n will. use a~ld rely u~~~n tl~e information pz~ovided by or on ~ehal:f of the Company and its advisors a71d agents oz• any prospective Buyer znd its advisors and agents and ozi publicly available inforrnatic~n in performing the services contemplated ~ez~eby. It is understood t~lat iii pe1•forming under this a~reelnent, Solomon n ay assume end rely upon the accl~rac~~ and completeness o:E; and is not assuming any 7•esponsibility for, independent investigation or verification of such publicl~~ available information axzd the information so fuz-~iished. Ii is also understood that Solomon is not assuming any responsibility for ally independent valuation ~r appraisal of any of the assets of t11e Comp~~y or a~~y prospective ~3~zyer. With respect t.o any financial forecasts (including cost savings and synergies} that 7nay be lurnislied to or discussed with Solomon by the Company or• a~iy Buyer, Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 12 of 21
Solomon will rely on suc~i forecasts and assume that they have been reasonably prepared and reflect the best then cu~x•ently available estimates at~d judgment of the Company's cat• such Buyet~'s management. The Company confirms that the inf~1-~nation to be furnished by the Company, when delivered, will be-true end coi-~•ect in all material respects, will be pz~epare~i in good faith, anti wi11 z~ot contain ~r~y material misstatement of fact oz• omit to state auy ~nate~~ial fact necess~y to make the statements contained #herein not .m.isleading. The Cani~ai~y will ~axon~ptly notify Solomon if the Company learns of any material inaccuracy or misstatement in; or a~iy material omission from, an~~ such information (incluc~in~ :Corec~sts) fi~tni.shecl by the Coin~any Ur airy prospective .Buyer, a a r 3 'C,t.,, _ t t..t - f1Y` e712y t?~ it1~11 tt'S~~Gtiily~ ~~ciSt~ vI' ~uVI~vTS, iv ~t3it7illvii Oi ai~j% Si.'sG~'i ~iivAl~~}T aJalt3vi2 information.
Section 3 Fees.. t~s compensation for the services rendered hereunder, the Company shall pay to Solon~o~l iti cash (via ~~vire transfer) the follov4~ing fees:
(a) T11e Coanpal~y and Soloman acl~iowledge that the Cam~any paid Saloinol~ ~ retainer 'fee (the "Retainer Fee") of $ i00 ;000 promptly following execution of the Initial Engagement Letter.
(h) Tl~e Company slzail pay Soloznozi a monthly financial advisozy fee of ~1U0,~00 per inc~ntll (the "1l~1c~~ithiv ~ciYjisor~"), the frsfi oI~ w~lich shall ~iccr~~e on the date the Company files for Cllaptez: I 1 batakruptcy protection, a~lcl thereafter on the first day of the following t~~vo mont~is; provided, however, that such Montl~ty .Advisory Fees shall not be payable until the relevant Bankruptcy Court approves Solomon's retention.
{c;) The Company shall pay Sc~loinon the ~o1loWing fees in respect of a Sale rl~z•ansaction:
(i} tit t11e closing of a Sale Transaction in t~hich the Sale Transaction countei-pai-ty is a Third Party t'~Ton-Operator•, a transaction fee (the "Non-0perator Transaction Fee")of $1.75 n-~illion less any Retainer Fee paid and not p7•evi~usly ct•edited. ror purposes c~~tl~is agree~llent; "Third Party Nc~n-npei•ato~~" shall meal a.fi~~ancial spox~sot•, private equity find; or ~iy entity that does nflt ovv~i or operate a movie theater.
(ii) At the closing.of a Sale Transaction ~il~~:z• than a Sale Transac#iUn described i11 Section 3(c)(i) above, a tz~arlsaction fee (the "Strategic 'Transaction Fee" and together with a Non-Operator Transaction Fee, each a "Sale ".I~xansaetion Fee") equal to $2.5 million less arly Retainer I'ee paid anc~ l~of previously ci~edzted.
(d) I:f any IZestructurixlg 'I'ransactza~~ is consLtzlimated, the Company shall pay Solomon a trat~sactioxi Cee {a "Resti-ucturi~n~? `Transaction ~ee") at the closing thereof, equal to $1.75 million. ~'or th.e avoidance of doubt, in the event that a Sale Tr~~saction occurs, whether or not such Sale "I'z•ansactiozl occurs within a bankruptcy process (i.e., sale and auction process as contemplated ender Bar~l~•L~ptcy Code 363) ar outside of a bankruptcy process,the fee payable i~l respect of such Tz-ax~sactiou shall be the Sale Transactia~i Fee ~s calculated p~~~•suant to Section 3(c) cif t13is I~gt~eeTnexlt.
4 Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 13 of 21
(e) If any Fi.rianciiig is consu~nated, the Company will pay to S~l~~n~n a financing tae equal to the a~~pIical~.le pez•centage below of the gross piocceds oF, or it gY•eater, maximuzn Iex~ding or fiindzng coirul~itment under, s~:ich Financing (a "Tinancixlg Transacti~.t~ Fee"):
(i) 1.0% for- senior secured. debt: (including, without limitation,, "debtor in possession" financing};
(ii) 2.5°10 for junior sectued debt or any unsecured debt, inchiding subordinated
'v'I` ITi~i,Z {iii) ~.5% for common, prefer•~•ed or other equity, including, without limitation, securities or debt convertible into equity or ec~iiity-Linked debt. It is t~ncierstaod and agreed that if the proceeds of any suc~i Financing are to he funded in more thin ane stage, t1~e aggregate proceeds to be .raised in all s#ales of such Fi~iancing shall be deemed to have i~een received., acid SoIoinoil s1ia11 lie entitled to tl~e applicable compensation hercunc~er calculated based o7z such agg7~egatie proceeds, upon the closing date of the first stage the~•eof. In addi#ion, the Com}~aziy and Saloznor~ aclu~c~wledge end agree that in no event shall more than ozie fee be payable to Solomon under Sectio7i 3(c)and Sectiozi 3(d) hereof. If a siz~~le transaction involves t~otli a Sale Trarisactior~ anal a .Rest~Yucfuri.ng Transaction, the highest of the ap~~lic~ible Sale T~•ansaction }{ee or Restructuring T~•atlsaciiaz~ Fee shall be paid to Soloiilon. However, a Firlanci7lg Transaction Fee shall be clue rra ~rrlditr'on to a Sale 1'ransacti~n I'ee or Restructuring Transaction Fee, unless the pioceeds of s~~ch ~az~ancing are used as ~az-t of a Sale Tz~axis~ciion oz• a Restrltc~uring Tra~lsaetion. In the event that the Company 1~ecoines a debtor• under Cliapte~• 11, the Company shalt ~~~~~ily promptly to the Bankruptcy Court fc~r the approval ~uz•suaut to Sectiazls 327(x) and 32~(a) of the Bankruptcy .Code of` this agreement and. Solc~ln~n's retention by the Company undez• the terms of ibis agreement, st~bjec;t o1~ly to the standard of review p~~ovided Fo~~ in Sectiozi 328(x) of the .Bankruptcy Cade, and nUt subject to the standard of'review under Section 330 of the Banla~uptcy Code or any ~thez• statldard ofreview, and s11all use reasonable effo7•ts to obtain Banlcru~~tcy Court authorization thereof. The Company shall sup~1~ Solomon and its counsel with a cll•aft of such application and the proposed order authoririllg Soloznozl's xetentic~n that is proposed to he st~binitted to the Bai~l;ruptcy Court sufficiently in advance of the filing of such application ar the subrilission of such order, as the case may be, to e~z~ible Solozzion uid its counsel to review an~i co11ui1ent thereon. Solorllori shall have no obligation to provide airy services udder tlsis agreement i11 the eveYlt that the Coi~pauy becomes a debtor under th,e Ba~»lc~~uptcy Code uliless Solomon's retention under the teams of this ag~~eement is appxoved under Section 32b(a.) of the Bankruptcy Code by a final order cif the B~in]<.ruptcy Court no longer subject to appeal, ~-eheari.z~g, recorisic~eration or petition for certiorari, and wlaicll order is acceptable to Sololnc~n in a]I respects. Solomon acl..nowledges that in the event that the Banl~~~i~tcy Coui-~ approves its retention by the Company puz-suant to t11e applicatiali process deser•ibed in this pa7•agrap:ll, payment of Solomon's fees and ex~~enses shall lie suLject to (i} the jurisdiction and approval of tl.1e 33acil~rttptcy Court tn~de~~ Section 328(x} of the I3az~lcrt~ptcy Code and. any oxder appz~ovirig Solomon's retention; (ii) any applicable lee and expense guicielin~s and/or ox•dexs arld (ii.i) a~iy regUirei~~e~nts governing Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 14 of 21 intez•izxl and final fee applications. In the event that tlxe CompaYly becor~ies a clebior under the Ba1~lc~u~tcy Cade alzd Solan~.on's engtigement hereunder is approved. by the Banlc~uptcy Court; the Cotnpa~iy shall pay all fees and expenses of Sola~non hereunder•(irlclud fig, without limitation, the fees and expenses of Solaznoz~'s cfluxisel} as pi~otnptly as practicable in acc~zdance with the terms hereof. Pz~io~• to corzunencin~ a Chapter 1 l case, the Coin.pany shall pay all undisputed amounts theretofore due and payable to Solo~noll in cash. I71 any chapter I 1 case or cases, tl~e Company agrees that Soloal~c~n's pest-petition cc~~npensatian ~tJ 5~l .t(~t'iil lle3'E:i12 t~lllt ~1n)%IliGilt~ i12t'1. uG ~iiiSiTc`litL iv ~ttC GY~i'115i: i~.iiii~i7iiiS~ITli~ii< ~iihot~gh the C~~mpany ~~~i11 request that Solomon be excused fi•am ar~y requirement t~ :maintain detailed tine 1•ecards of tine spent working c~7i this ass ~miner~t, Solomon will i~.onetheless maintain daily records, in summary fo7~nat, tivl~ieh. shall. indicate the Total houz~s i~lctiu~red by each pzc~fessio~.~al for each day, in half hour (.5) inc~•enients, and a brief description of the nature of the wozk pe.~•farmed, which ~~ecc~rds shall be available fog• submission to the Bankruptcy Court subject to ap~iopriate redactioizs to preserve confidelitial oi~ sensitive itiforxnatiot~. Although Solomon is providing suc~z recn~~ds, it, as a financial advisor, does not ]gave 1lourly 1•ates for its professionals. Solomon will make every effoi-~ to coordinate with tl~e other professionals retained by the Golnp~ny in this I~az~la-upt~.y i~ oxder tc~ e1i1~1inate u~necessa7y duplicatioli or overla~~ of~ vaorlc. I7z addition to the lees provided above,and as more Fully set forth ii1 Section 4 below,the Company shall Y•eimburse Solomon for its out-of-pocket expenses anti pay to Salomon the customary hourly fees charged by Solomon for each hour th~~t a Solo~nt~n em~~loyee shall be required to testify (~r ~e available on site to testify) in any court, arbit~•atiozi oi' adlninist~•ative proceec~izigs, or in oral depositions, in comiection with a~iy such proceedings z~elating tc~ ar arisir~d out o1' Solomon's enga~ernen~ hereunder. Section 4 1?x~~erlses. Whether or not any 1~.c•~~nsactiozl is ~~roposed or consummated acid wii~hout in any way reciucixig or affectirl~ the provisions of Ex~~.ibit ~ }.sereto, the Company sl~1~ll ~a•eiinburse S«~lo»1oz1 monthly fo7~ its nut-ot=pocl.et expenses incurred in connection with the provision of services hereundc;z`, the e;~ecution acid delivery of this letter a~reeme~it and the consu~llat~ion of any'.ti•ansaction contemplated or• ~tteinpted hereby, including without limitation the fees, disbursemetlts and otllez• charges ofd Solo~non'~ coulisel; provided that the ai11ou11t of sl~cli Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 15 of 21 e~~ezises for which Solomon tnay seek rermbursemezlt from the (~`ompany under this Section 4 shall not exceed $75,040 in the aggregate without the Company`s cailsent (~1ot to be unreas~t~al~ly withheld). Uut-of-docket expenses also shall include, htit not lie limited to, t~•avel and lod~.ing, data processing end communication charges, research and courier services. The Cozn~~any shall p~•ornptly reimbuz•se Solomon zzpo~i presentation of an invoice or other• similar c~ocirrnentati~n. Section 5 I~ldemnity a~ld ~thex R.i~hts. The Com~~any agrees that the pz•c~visiozxs of Ex~~ibit A he~•eto are an integral dart <~f this agreement a~ld t11e terms of Exhibit ~ are incorporated U`T ~'P ~P:~v:~r..v J ~.(.i~~~~. Y~ii~ii Jir i1 .ei}iti" .~.~i iiiVi,~~v Glif Cvi~iii~w~iv.~ii ~i~ u{i~liui~~ii v~ iili.Ci. ^Ca~~i~vtiivii l~. Section 6 Texan. TI~e term. of thus agreeniei~t shall eYtenc~ from fhe dale ~~ereof until three nsoriths afters such time as the Company or Solomon shall slave notified the other party in writing of the termi~iation of this agreement; ~~rovided, however, lhat (i) terininatioiz of this agreement shall not af~'ect the C~m~atly's co~ltu~uing obligations wider Sectio~Is 5, ~ and Exhibit A. hereof;(ii) Solomon shall be entztled to its firll fees under Section 3 hereof'(payable at t11e times set fort11 in Section 3) if, ~n or prior 'to two yews fioin the. effective date of termination ~f-this agreement,(x) a `I'raz~saction is cozisui~~alated, ox (y) a letter off'intent ~r definitive agreement wi#Ii respect to a Ti•ar~saction is execufed (wllicli letter of intent or defitlitive agreement subsequently results in the consumi~lation of a Transactio~i at any tune); a~ad (iii) terzllillation of this agreement shall not affect the Company's obligation. to reiiliburse the expenses accruing prioz• fo such te~•mination to the extent provided for iu Section ~. Section Z Miscellaneous. (a) Solomo~i acltnov~~leci~es i}zat the Company sha1111ave no obligation to enter into any Transactio~l and s1ia11 have the right to •eject any `Transaction or• to terminate negoCiations ti~vitll respect to any Transaction at any tune. (b) Except as contetzl~lated by tll.e terms hereof, S~lonlon shall 1{eep cozxfidential all information provided to it by the Calmany, unless publicly available or otherwise available to Solomon without rest~•iction gin• t~z•e~cli of airy confidentiality agreeTnent, end shall i~ot disclose sucJ~ i~lfotxuation to any third par-~y, other than in confidence to i.is aFfiliates and its axed their respective officers,. directors, employees, members, limited and general partners, agents, re~~resentatives and advisors, without the C:oznpar~y's prior ~~ritten approval; provided that nothing in this agreement shall restrict the c~iscl.~sure a~ suc17 infonuatio~ as required by la~~ or regulation or in response to irzquit~ies from, as' to investigate or• defetld a1le~ations o~• claznls made or tlu•eatened hy, regulai:ory at• selFregulatory autlao_cities or others {a "Required Disclosure"). In the eve7lt Soloman is subject to a Requi7-ed .Disclosure, it shall give proill~t notice thereof(to the extent legally permissible Viand practicable under the circumstances) to the Company; and Solomon shall only disclose st~cl~ in:Eormatioz~ as its legal counsel advises it is required to disclose. The Company agrees xlot to disclose this agreement, the co7~2ents he7-eof or the ~~cti~~ities of Solomon pursi~~mt hexeto to any other ~a~•ty without the prior approval. of Soloz~zoz~. (c) The advice (oral o~- ~v1•itien) rezldered by Solomon pursuant to this a~;reeme~~t is intended solely for the benefit anal use of the Board in considering tie matters to ~~~icll this agreement 7•ela~tes, and th.e C~~mpany agz~ees that such advice may not be disclosed or relied «pon. Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 16 of 21 by any other person (incl~zdin~, without Iim tat Un, secui•ityholders, ai~filiates o1• cr•eclitors of the Company), used for any other purpose or i•e~l~oduced, eiisseniinated, quoted or referred to at any time, in any manner o~~ fog• ~i}~ pt~ipose, nor shad any public references to Solarxlon be made by the Cam~arly, without the prior written consent of Solozno7l. (d) The Company agrees that in any press release amlouncing a "Cratisaction, -the t;~m~~any will include in such press release a reference to Solomon's role as financial advisor to the Co~i~pa~ly wit11 respect t~ slick Transaction izi form and substance reasonably satisf~~etol~y to .~~C)i0i~17ii. i~c; ~`Oiii~]ciiiy a~YeBS iilc3~ CvJiJiiii)11 ~ll~~~ i~c^~`J8 ~~1~ 2t~}2~' 3f~~.T ~~'.:; Sl~:',:I1~'J~u ~P~nt~:V~ agreement-iii respect of a Transaction t~ place advez-tisements in financial. and other news~3a~~ers and joiu~ials at its ~wi~ expense desczbin~ its services hereunder and Uthez-t~~ise use customary "tornbstozzes" in any form of media ~r in Solomon's ma~•keting matea~ials. (e) This agre~;ment contains tl~e entire agreement beti~eeza the parties hereto ~uxt supersedes all p~•iar agreements and t~nderstandi~l~s relating to the subject matter hcr~of. This agreement play zaot be amended or modified except ~y a writing executed by each of the parties. This agreeF~lent may not be assigned by either party hereto ~~ithout the prior wiitte~i consent of the other, to be _given in the s~ie discretion of the party from whom such consent is toeing requested. Any atiem~atecl assignment of this agreeineflt made without sitcll consent shall be void and of no effect, at the option of the noii-assigning party. The provisions of thrs agreement, including without Iilnitation the obiigatio~~ to make the p~.yzn.ents set forth in Section 3, shall tie binding o11 the Campa~iy and i#s successo~~s acid assigns. IFS addition, the_obIigations ofthe Cail~pany set forth iii Sections 3-5 and EYliibit A shall be binding oil the Company's affiliates, subsidiaries aszd a~iy entity used thereby to facilitate a Tzansaction contemplated hereby. This agreement is s~J.ely for the bei~eft offhe Company,Solomon and, to the extent expressly set forth herein, the Indemnified Parties (as defined in Exhibit ~A) and nn other party shall be a third-party beneficiary to, or otherwise: acquire or have any rights under or by viz-tue of, this agreement. (fj This agreeulent shall be govez7led by aucl construed in ~cc~rdance with the laws o:f the State of New Yorl~ in the Uxlited States of America, without regard tc~ its choice of lave principles. In the- event that any party k~eretc~ shall institute any suit, action ~r oiher legal pi~c~eeediizg under, in connection t~~ith; ox pu~-stian:t to, this agreement and/~r arly rights or obligations established by t11is agrEement; such suit, action or other legal proceeding shall be brought il~ the supreme C~r~rt of the State of New York located in the City and County of New York or t11e United States District Cou7-t for the Southezn :District. of New York. Each o:f the parties hereto fitl~ther a~;~rees to submit, and hereby subn~zts, to the exclusive jurisdiction of such courts, ~~nd to coJnply ~~vith all requiren~e~its necessary to give such courts persal~al jt~z~isdiction over such party. (g) To the ~Ytent permitted by applicable law, ttie Company hereby waives tights o:C setoff, and t11c right to interpose counterclair~ls in any lawsuit with respect to, ii1 connec~ior~ wit}1 ox arising out of this a~~reemelat, oz• any other claim or dispute z•~latil~g to the engagement of Solomon a7•isiizg betwcezl the pa~.~.ies hereto. The Company hereby eonftnns that the foregoing ~~~azvei~s a~~e informed a~ld freely made. 8 Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 17 of 21 (~~) Solomozi and the Compa~iy each hereby l~r~ovvingly, voluntae•ity and intentionally waive any right ezther• may have to a trial by jut~T `~rith respect to any litigation based I~ex•ean, or arisi►ig o~~t oif, u~idez- oi• in connection ~vitii this eYigage~~ent letfer and/or• t1~e services provided hereunc~ez•, or any cQut-se of conduct, curse of dealing, s4atements (whether verbal ay wvz-itten) or actions of either party. Vii) Tie relatit~nship of Soio~non to the Co~~lpany he~•eiu~der shall be #hat ~f an irldependei~t contractor, Soiorno~l shall have no authority to bind, ~~epresent or otherwise act as (tg('.tit ~pY f~~P (~()m~at~ly at~t~ ~'(?~O:::L:1 L~ (j) The Company und~Y•stai~cls that Solomon is an. affiliate of Nati~is (toget}ier with its affiliates including SoIomorz, "Natixis") and that Natixis engages globally irl a ~=ide varieiy of ~nalzciiig, eo~nmodities, derivatives, ec~n~.mercial baz~lcing, irivestinent banking, securities trading and brokex•age activities, asset znanabement and fiziancial adviso~•y services. Ian tl~e Urtlina7{y course oF.its activities Natixis may at oily ti~aie (i} be in possession ofiron -public info.r~nation t11at it does not disclose to the Company and {ii) hold long oz shoY-t positions, or trade or otherwise effect iransactioY~s, for its own account or customer accounts, in tale dent oi• equity of(oi• ot11eY• flnaileial instruments relating to) perso7ls oz• entities That may be involved or otherwise 1~.ave interests in the Traizsactic~n or play provide irzvesi~nent banl~ing and oihe~~ services or financing to such persons or entities. `.I'he Company ~ixrtller understands and agrees t~iat Natixis play e:~ercise vofiing power or other types of discxetic3n over loans or securities o.f {'or' other• financial instri~riients relating to) persan~ or entities that lnay he involved. in the Transaction and that Natixis play exercise stic;h. ~~oweis o.t• discreti~7n and otherwise perk<>rns its functions in connection with and fiduciary and other relatiolzships without regard to its relationship to the Coi7rpaz1~7. (lc) The Coin~any hereby acicx~o~vle~lges that Solomon is or will be engaged to provide sell-side M&A advisory sez~vices a71d/or financing services to a third party operating in the same lire ofbizsiness as tl~e Coz~rpany, aild Solomon may be marl~eting the sale of such tla.ird p~~t~y a~~d/or capital raise in z•espect of such third panty to the same potential buyers/izivestors that zna~ be interested i.n pursui7lg a Tz~a~isactioil with the Company at the same time as the ~n~oeess Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 18 of 21 contemplated by this agt~eeinent. In Iigllt o~ tl~e foregoi~lg; the Com~~a~ly waives ally and all potential or actual conflicts of interest in comiection therewith. (1) ~ihis agreement may be executed ix~ any nurnber of counterparts and by diffeaent parties. hereto in se~a~~ate c~ul~ter~aa7-ts, each of wl1ic11 when so executed and delivet'ed shall be dee~iied az1 original, but all such eountexpa~•ts tc~getlleY• shall constitute orle and the same inst~uxnent, Delivery of an executed cormterpart sigf~atiure ~~age to Phis agreement by telecapier or e-nail (including by .~df or other electronic Fo~~nat) shall be as effeeti~Te as delivery of a manually eXeCLII~U COt1TlteTpAt'C STgTl~tllt'~ ~>~~;e U~ 1~L1S ~t~I`e~itiE:Ili. iV7~i ~aiiutc vx ii~~ay vy uG~viiivi~ iix exez'cis ng any right, poti~vez• ar remedy hereunder or pursuant het•eto, or any failzlre to give notice of any breach of or to require compliance with any term ofthis a;reeme~lt, s~iall ope~~ate as a ~x~aivez• t~ie~eo~. {~n) 1lotiee ~'equired. tt> be gzven i.tl vo~x'iting pursuant to any of the pxovisio~is of this ~1greelz~e~~t shall be i~~ailed by next-day delivery Ltsing anationally-recognized overnight courier o~ hand-delzvered (a) if to tl~e ~az3~~~a~iy~. at the address set foz-th above, anci (t~} if #c3 SolomoY~, at 1345 avenue of the 1~rrkericas, New York, Ne~v Yark I0105, Attentiaz~: Gez1e~•al Cotuasel. 10 Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 19 of 21 If the foregoi~~g correctly se#s fol-th the understanding gild a~;reemetrt between Sc~Zozz~.on ai d the Coinpa~ly, plca~e so indicate by si~rling tI~is letter, whereupozi it shall b~coine a bi~~c~ir~g ~greenien~ between the parties hereto as oftlie date fizst above ~Fn•.itten. P.1 SQL~DMQN,L.~'. ~y; ~'1 ~alvmcstt ~iF, LLB' lip general P~~r~~r B~+: i~Iln9~: ~ ~c~~~ ~ ~~.; Tine; ;~j~~,~,~-~;~~ ~;~(~~; r 'Title: ~~V~ ACC~gY~t1 and ~gre~i fn ~S cif ~Ite ~i$y f~e~t s~~itten at~vc: ~y., ~~,' ;~ _v ~. I~iarne: ire ~.~ :~~ ~-~•~ Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 20 of 21 E otherwise R~feience is made to the agreement attached hereto beri~veen Solatnon and the Company. Unless further consicleratioti xzoted, all capitalized terms used herein sha1111ave the rneanirags set forth in the a~•eeinent. ~s ; counsel and ether under the agreement, the Company shall indemnify and hold harmless Solomon and its affiliates agents and professional advisors, and the respective cli~recYors, officers, nlenlbers, pailners; conholling persons, "Indenmit`ied Parties"), employees of each of tale foregoing (Solomon and all of such other ~3ersons collectively, the assessments, from ai2d agauist a~iy losses, c]auns oi• praceeciings ii~clnding stockholder actions,-damabes,judgt~sents, - c~sfs, investigation costs, third-party subpoenas, setttenient costs, fines, penalties, arbitration awards, oth.e~ liabilities, provided by fees anti expenses (coIiectivety, "Losses"){i) related to or arising out of(A) o~~ai or ~u~•itten information provides to any the Ca~upauy, the Goznpany's eanpl~yees or other• agents, which either the Company or Soloi~ion ot}zer agents or Soloman persons, or(B) other action oi• failure to act by the Company; the Coin~any's employees or arising out of the en~agei~~ent at the Co~npany's request ~r with the Comp~3ny's consent, or (ii) otherwise related to o~• in cannectioii therewith, of Soloano~i Undet• this agreement, the Transaction o~~ any .other h~ansaction or conduct ofia court.of ~ovicied that t}iis clause (ii} s11a11 not appty if it is determined by a final, non-appealable jud~ient such IndemnifzedParty. competentjurisdiction that such Loss~:s arose solely out of tice gross uegli~ei3ce or bad faith of to at least one cif which Tf multiple claims are brought agauist an Inde~~rni~ed .Party in an arbih~atioz~, with respect Cotupany agrees that. ind'eznnificatiori is ~~ermittec~ ilndel• applicable law and provided for under this abee~nenT, the is pei~nitted airy arbihation a~,vard shall be conclusively deemed to be based oil claims as tc~ which uldemnificatioa~ ox portion thereof, is and provided for, except to the extent the ~j-bit~•ation ~warct expressly states that tiie award, any based solely on a claim as to which indemnification is nni available. Party's The Company shall further reimburse any Indatnnifiecl Party promptly foz•, or at the Indemnified in investigating, option advance amounts sufficient to cover, any legal oz other fees or expenses as they are in~~u-r~d (i) ttiez~eof, whether ot• not in preparizig or pursuing airy action. or other proceeding (whether fozn~al or informal) or threat Party is a party (an con~iection with p~nciing or threatened litigation o.E• arbitration gild whetY~er or not any Incteninified (including, "Action") and (ii) in coT~necti~n with enforcing such lndemni~ed Party's rights under tills agreement determined by a final, without limitation, its ~•i~hts under this Esliibit A}; provided, howevei; that in the e~~ent it is Party ~ros~ solely pion-ap}~ealable judgment of a court of cozrapetent jurisdiction that the Losses of srtch-Indei~lnified promptly remit to the out flf the gross negligence or bad fai[h of such lndemi~ified Pal•ty; such Indemnified Party will Company any amounts reimbursed or advanced udder this paragraph. the `i'he Company shall, if requested by Solomon, assume the defense ~f any such Action. including consent or otherwise employment ~f counsel reasonably satisfactory to Solomon and will. not. settle,. compromise, Ptzrty is a parry thereto) resotve or seek to Ce~-~ninate any pendin; or ttueatened Action (~vliethar or rzot any Indemnified t•elease of each lmless it obtains (i) the pa`ior v,~~ittei~ consent of So(onion or (ii) (x), an express, unconditional ab~eement anti Indenznit7ed Parry from all I:i~bitiYy relating to srich Action and tl7e engagement of Solainon under tills fault on the part of any (y) suc~i sett}elnent, co.mpro~nise rn• consent sloes not include any admission or assumption of aiid participate in Ii~der~rni~ed Party. Auy IndeTnzli~ed Party sl~al'1 be entitled to retain separate counsel of its choice but the fees and the r3efeilse of any Action in connection with oily of the matters to which this Exllib,it A relates, has failed promptly expenses ofsuch counsel shall bz at the expense of such Indemnified Party unless:(i) flee Company by its cow~sel filet to assume the defense arld employ counsel, (ii) sash Indemnified Party shall ]lave been advised to the there maybe o1~e or mote legal defenses available t~ it wi~ich are differe~it from oz- in addition to these available Company's expense Gc~mpany or (iii) t3ze Co»lpan}+ authorizes the I~zden~nified Party to c~.n~~loy sepaa•ate counsel at the that the Company (in each such case the Company will pay the fees and disburseai~e~nts ~f stash coiulsel); z•ovided one ~r•in of separate sh111 ziot ii1 such event be 1•esponsible undea- this E~ibit ~ for the fees ai d ~;xpenses of more than counsel (:in addition to local counsel) in connection with any such Action ~in the same jiirisdietion. is Tlie Co~npaz~y agrees that if any right of any Ind~~til~ifiefl Party set forth in the ~reeedin~ paragraphs filially such Losses judicially deter~vined to be tirlavail~ble, or is insl~fficient to hold such Indemnified ]:'arty harmless abainst is appropriate to as coiitempl~ted Herein, tlleit the Company shall contribute to such Tosses (i} iii such pa•oportioil as and such Inde:mni~ed reflect the ~relaYive bznefits i~eeeived by the Compa~~y and iCs stockholders, on the one land, iE~ the allocation Pa1-ty, on the otherhand, ire connection with theil~ansactio»s contemplated hereby, and (ii) if(and only re#lest not oily the provided in clause (i) is riot peiinitted by applicable law, in such pa•oportion as is appro~i•iate to such Indemnified Party; relative be~~efits refe~i•ed ro in clause (i) beat also the relative fault of the Company and Parties eticeed the provided, hotivcvc~~; that in no eve~i~t shall the amount, if airy, to be conh-ibnted by nll Indemnified 1? Case 19-11739-LSS Doc 94-2 Filed 08/13/19 Page 21 of 21 amount of the fees actually received by Solomon hereunder. Benefits received (or ac~Ticipated to be rer..~ived) by the Cutiiper~y a~7d iTs st~cldiolders slia}1 be deemed to be equal to the aggregate cash considez~ation grid value of equity interests oz• any other property payable; exchangeable ox n•ansfei•able in any proposed or potential transactions within the scope of this agreeuiexit, and benefits received by Solomon shad be deemed to be equal to the compensation payable by the Coniparly tca Solomon in cazuiection with this agreement. Relative fatia.l~ shall be cieter3nined by reference t~, among other things, whether at~y alleged untrue statement or ozr~ission or any othe~~ alleged conduct relates to information provided-by the Company or other conduct by tl~e Company {or the Compa7ry's e~n~loyees, ar other agents) o~i t1~e one hand or by Solomon on tl~e ot}~er hand. The parties Hereto agree that it would not be just and ec~urtable if contribution were determicied by pro rata allocation or by any othez• method of allocation that does not take into account the equltabte considerations ~•eferied Tv above. 'I'1~~ Company also agrees tllaf na Indemnified Party shall leave any liability (whether direct or indu~ect, in contract ot~ tort or otherwise) to the Company for ar ul coruiectioi~ with advice or services rendered or to be r~endez•ed by any lndemziified Party pursuant to this agreement, tiie t~•ansactions conteizlplated hereby or any Indei~u~i.fied Par[y's actions or i~~actiaus in connection wit11 any such advice, services or transactions except for Losses of tI~e Colnpazly tl~~it are finally judicially determined h} a count oP competent jtzrisdictiort to nave arisen. solely out of the gross negligence or bad faith of such Iiidemnifie~i Party in connection tivith airy such advice, actions, inactions car services. I~he ~~iglits of the Irtc3emnitled Parties Iieretmder shall. be in additio~i to airy other rights ti~at any Indemnified Ya~-ty may have at common law, by statute or otherwise, ~;xcept as otherwise expressly provided for in this F.,xhibit A,i£any term, provision, covenant or restriction contained ari this Exhibit A is held bya court ~f,competentjurisdiction or ofher authority to be uivalid, vnicl, unenforceable or against-its regulatory policy, flee 7•emainder of tite terms, .provisions, covenants and restrictions contained in this agrezme~lt shall remain in full force and effect aiid sha11 iu .ao way be affected, impaired.or invalidated. Tl~e reimbursement, incie~i~nity and contribution oi~}igations ofthe Coxnp~ny set foi•tll hereitz shall (i) apply to any modification of this agreement and shall remain in full force and effect regardless of any termination of tells agreement anti (ii) shall inure to the benefit ~f any successor or• assign. Party. of any Indemnified. 13 Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 1 of 21 EXHIBIT B Brail Declaration rocs oc:~?as~u.z ~y~v~iooi Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 2 of 21 IN THE UNITED STATES BANKRUPTCY COURT I+OR THT DISTRICT OF DELAWARE In re: I Chapter 11 iPic-Gold Class F_,i~tertaii~nent, LLC, et al.,' I Case No. 19-11739(LSS) Debtors. ~ (Jointly Adlninistei•ed) DECLARATION OF RICHARD S. BRAD I~~ SLTPP~RT ~)F DEBTORS' APPLICATION FOR E\TTRY OT AN ORDER:(I) AUTIIORIZiNG llEI3T012S TO EMPLOY AND RETAIN PJ SOLOMON AS INVESTMENT BANKER TO TIIE DEBTORS EFFECTIVE NUNC PIZO TUNC TO THE PETITION DATE, (II) APPROVING THI; TERMS OF THE ENGAU~M~NT LETTER, (III) MODII+YI\~G CI;RTAIIL' TIME-KT~PING I2EQUI12EM~NTS, AND (IV) GRANTING RELATED RELIrF I, Richard S. Grail, declare as follows: 7 am a Managing Director at PJ Solomon, L.P., an investment banking film which offices at 1345 Avemie of tl~e Americas, 31st Floor, New Yo~•k, New York l Ol O5, and the Head of the Media, Entertaimneilt & Comi~iunications Group. I am authorized to inalce this declaration (this "Declaration") on behalf of PJ Solomon, L.P. and/or its aff Bate PJ Solomon Secu~•ities, LLC ("Solomon"). Unless otherwise stated i» this Declaration, I have pei•soi~al knowledge of the facts set fo7~th herein. ~ The Debtors in these chapter l 1 cases, alo»~ with il~e last four digits of each Debtor's federal tax identification member, as applicable, are: iPic Entertainment ]nc. (9582); iPic-Gold Class Entertainment, I~LC (4684); iPic Gold Class Holdings LLC (6315); iPic Media, LLC (O]50); iPic Tcxas, LLC (N/A); and Delray Beach Noldi»gs LLC (1035). "The Debtors' principal place of business is 433 Plaza Real, Suite 335, Boca Raton, FL 33432. 2722!99987-512 CURRENT/109774055x6 08/07/2019 12 25 PM Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 3 of 21 2. I submit this Declaration in support of the Debtors'Application for Ent~;y ofcan OrdeJ~ (1) Authof~izirrg Tlzem to Er~zploy and Retain PJSolonaon as hz>>est»~en! Banke~~ to the l~ebto~•s Effective Na~nc Pr•o Ta~nc to the Petition Date, (II) ~ll~p7•oving the Te~~nzs oftl~e E~gagej~~ent Lette~~, (III) YVaiving Ce~~tain Tune-Keeling lZecl~ireilzents, caf~c~ (IV) Ur~anting Related Relief(the "Application").Z Solomon's Qualifications 3. I understand that, in light of the size and con~pleYity of these cases, the Debtors require a qualified and experienced investment banker with tl~e resources, capabilities, and experience of Solox~~on to assist them in pursuing the transactions that az•e crucial to the success of the Debtoz-s' cases. I further understand that an investlnetlt banker such as Solomon is a critical service that complements the services provided by the Debtors' other professionals. I am informed that the Debtors believe retaining Soloinozl as tl~eiz• iiavestment banker• is in ~t}ie best intet-est of their estates and all parties in interest because, among other things, Solomoia leas extensive experience in, and an excellent reputation for, providing investment banking services to debtors in bankz-uptcy reorganizations and other• restructurings. 4. I have extensive experience advising companies in the site-based entertainment industry. My transaction experieXlce includes extensive woz-k in the motion picture exhibition sector and tl~e di~~e-in thean~e segment. T have worked as both sell-side and buy-side advisor• fol• tz~aditional theatres, luxury theatres and cline-in concepts. My transaction experience in tl~e dine- in theatre segment includes adv~siz~g: Moviehouse &Eatery o~~ its S~31e to C~uepolis (2019); VSS-Southe~•z~ Theatz-es/Movie "Lavern on its sale to Marcus Corporation (201)); Cobb on its sale ~ Capitalized terms riot otherwise defined herein shall have the meanings given to them in the Application. 2 2722/99987-512 CURRENT/109774055v6 08/07/2019 12.25 PM Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 4 of 21 of Cinebistro to Cinemex (2017) and Movie "I~avein on its sale to VSS/Southern Theatres (2013). My transaction experience in the broader motion picture exhibition seetoz• includes advising: Santikos Enterprises on its sale of certain theatres and property for future development to Rega](Apz -il 2017); Cobb Theatres on its sale to Ciuenlex (2017), Marcus Corporation on its acquisition of We~uenberg Theah•es (2016); Bow Tie Cinemas on its sale of a collection of theatres to Cinepolis (2016); Starpiex Cinemas ou its sale to AMC Entertainment (201 h); Kerasotes Theatres on its sale to AMC entertainment (2010), and Syufy Enterprises on its sale of Century I'laeatres to Cinenlark USA (2006). 5. ~'ur~ther, I have extensive relationships across the landscape of likely interested parties, illchlding existi~lg theatre operators, site-based ei~tei•taimilent and venue z~aal~agernent companies, and financial investors. I also mai~itain active dialogues with parties who uivest opportunistically in t1•atlsactions wit11 turnaround potential. 6. Iz~ addition, Solomon and its seziior proFessionals leave extensive expez-ience in the reorganization a~~d rest~-uctur-ing of troubled companies, both out-of-court and in chapter 11 pl•oceedizlgs and Solomon's employees have advised debtors, creditors, equity constituencies, and government agencies iz~ many complex reoz•ganizations. Moreover, Solomon has beery retained as i~lvestment bankers in a number of irolibled company situations in various jurisdictions, includi~ig, an~oilg others: h2 ~•e Payless I-Ioldzngs I,LC, Case No. 19-40883 (I3ankr. E.D. Mo. Mar-. 19, 2019); In i•e Qz~icksilver•, Inc., Case No. 15-1180 (Banlci•. D. Del. Oct. 28, 2015); In s°e HHLtgz.ridation, I,I C. (f/Ic/a In i•e IIaggen Holdings, LLC), Lase No. 15-11874 (ICG) (Bankr. D. DeL Oct. 8, 20l 5); I~z ~~e "1'l~e Dolcn~ Co3~~pany, Case No. 14-1 Obl~ (Ballkr. D. Del. Apr. l 5, 2014); In r•e MLS Intl, hoc., Case No. 09-14109 (13anlcr. D. Del. Feb. 26, 2010); h2 ~~e C;'1~ I,ictrizc~atiorz Co., LLC, Case No. 09-13038 (B~uikr. D. Del. Sept. 15, 2009); In re Leaj~ C:'oyp., 3 2722!99987-512 CURRENT/109774055v6 08!07/2019 12 25 PM Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 5 of 21 Case No. 09-14326 (Ba~~kr. S.D.N.Y. lug. 25, 2009); I~ re Bz~zlding Matei~icrls Holding Corp.; Lase No. 09-12074 (Bankr. U. Del. July 16, 2009); In ~•e Ec~c~re Bauer Ilolding.s, Inc., Case Nn. 09-12099 (Ba1~•. D. llel. July 7, 2009); Iii ~~e Pol~rroid Coil., Case No. 08-46b17 (Banki~. D. Minn. Feb. ), 2Q09); In ~•e T~a~eete~• Home Lnrn~'t Grp., It~c., Case Nn. 07- l 07$7 (Banks•. D. Del. July 13, 2007); In re M. Fab~~zlcanl & Svns, Inc., Case No. 06-12737(Bankr. S.D:N.Y. May 25, 2007); In ~~e Dura Pluto. Sys., Inc., Case Nn. 06-1 ]202 (I3ank1•. D. Del. Dec. 6, 2006); In 7~e Dana Co~l~., Case No. 06- 70354 (Ba~1kr. S.DN.Y. Maz-ch 9, 2006); In re J.L. Fi°ench Auto. Castings, If~c., Lase No. 06- 1011 J (Bankr. D. Del. March 22, 2006); and In re Al Realty Mai°keting of~ Nei-i~ York, Inc., Case No. 01-40252(Bate. S.D:N.Y. Sept. 11, 2002). Accordingly, Solomon has developed significant z~elevant experience and expertise that will enable Solomon and its professionals to provide necessary investment banking services in these chapter 11 cases. 7. Additionally, Solomon is already familiar with tl~e Debtors' operations. The Debtors first engaged Solomozl oxi June 10, 2Q19. From that date, Solomon has worked Wirth tl~e Debtors to provide the services outlined below. Thus, Solomon is well-suited to provide the im~estment banlciilg services to the Debtors that are contemplated by the Engagement Letter and described herein. 8. In J~ine 20l 6, Natixis acquired a 5] `% stake iu Solo~~lon. Nati~zs is the international corporate and investl~lent banking, asses .management, insurance, and fina~lcial services arm of troupe BPC1~, the 2nd-largest banking group in France. Natixis has a nwliber of areas of expertise that are organized into foul- main business liz7es: Asset &Wealth Management, Corpot~ate &Investment Banking, Tnsw~ance, aiad Specialized Financial Services, and it is possible that Natixis has comlection5 with lkie Potenii~il Parties in Interest. however, other• than through its connection to Solomon, to the best of ~~~y knowledge, Natixis is .not involved iii 4 2722/99987-51?_ CURRENT/109774055v6 08/07/2019 12:25 PM Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 6 of 21 adl~ising any of the Debtors or theiz• businesses. Accordingly, this disclosure is limited to Solomon, and does not include any con»ections ~liat its sl~a~•eholcler may, or may i~ot, have with Potential Parties in Interest. Professional Compensation 9. In consideration of tl~e Set•vices, and as more fully described in the Engagement Letter, subject to the Court's approval, the Debtors have agreed to pay Solornozl the proposed compensation set :forth in the Engagement Letter (the "Fee and ExUense Structw•e"), which is summarized below: (a) "l~he Company azld Solomon acknowledge that the Company paid Solomon a retainer fee (the "Retainer Fee") of $100,000 promptly following execution of the Initial engagement I.,ettex. (b) Tlie Company shall pay Solomon a monthly financial advisory fee of $100,000 per• month (the "Monthly Advisory Fee"), the first of which shall acc~•ue on tl~e date the Company files for Chapter 11 bankruptcy protection, and thereafter on the fiz•st day of tl~e following two ~~~onths; provided, however, that sLich Monthly Advisory Fees shall not be payable until the relevant Bankruptcy Cotu~t approves Solomon's retention. (c) The Conipai~y shall pay Solomon the following fees in respect of a Sale `Transaction: (i) At the closing of a Sale Transaction iz1 which the Sale Transaction counterpai•ty is a "l~hird Party Non-Operator, a tz-ansactioia fee (the "Non- O~eratoz~ Transaction Tee") of $1.75 million less• any Retai»ei• I~ee paid and not previously credited. For purposes of this agreement,"Third Party Non-Operator" shall n~eai~ a financial sponsor, private equity fund, oz~ any el~tity that does not own or operate a movie tlleatei•. (ii) At the closing of a Sale Transaction other than a Sale Transaction described in Section 3(c)(i) above, a trazisactio~z ~~ee (the" Strate~ie T~~ansaction tee" and together with a Non-Opez•ator Transaction Fee, each a "Sale I~ransaction Fee") equal to $2.5 million less any Retainer ~'ee paid and not previously credited. (d) If~any Restructuring Transaction is consummated, the Company shall pay So]omon a transaction fee (a "Rest~•uctuz~in~ Transaction Fee") at the closing thereof, equal t:v $l .75 million. Fot~ the avoidance of doubt, in tl~e event that a Sale Tz-ansaction oec~u~s, whether or ~1ot such Sale Transaction occurs within a 2722/99987-512 CURRF_NT7109774055v6 08/07/2019 12'25 PM Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 7 of 21 bar~la-uptcy process (i.e., sale and auction process as co~ltemplated under Bankr~~ptcy Code 363) or outside of a bankruptcy pl•ocess, tl~e fee payable in respect of such Transaction shall be the Sale "Transaction F'ee as calculated pursuant to Section 3(c) of the Engagement Letter. (e) If any Fina~~ciz~g is consummated, the Company will pay to Solomon a financing fee equal to the applicable percentage below of the gross proceeds of, or if greater, maximum lending or funding coznmitl7~ent under, such Financing (a "Financing Transaction Fee"): (i) 1.0% for senior secured debt (including, without limitation, "debto~~ in possession" financing); (ii) 2.5%for junior secuz•ed debt or any unsecured debt, includizag suboz•dinated or• mezzanine debt, o~~ Li~~itranche debt (i.e., coinbini~~g different types of debt, such as senior and subordinated, into one instrument); (iii) 4.5%for common, preferred oz~ other equity, including, without limitation, securities or debt convertible into equity or equity-linked debt. (iv) Notwithstanding the terms of the Engagement Letter, Solomon has agreed to cap the amount of any Financing Transaction Fee at $2.0 million, and zoo Financing Transaction Fee is payable in respect of pz•oceeds received from Retirement Syste~l~s of Alabama as debtor-in-possession financing.3 (~ If the proceeds of any such Financing are to be funded in more than one stage, the aggregate proceeds to be raised iu all stages of such Financing shall be deemed to have been received, and Solomon shall be entitled to fl1e applicable compensatio~i calculated based on such aggregate proceeds, upon tl~e closing date of the first stage thereof. (g) In addition, the Company and Solomon acknowledge and agree that in no event shall more than one fee be payable to Solomon under Section 3(c) and Section 3(d) of the Engagement Letter. If a single transaction i~ivolves both a Sale Transaction and a Restructtu•ing Transaction, the highest of the applicable Sale T~~allsaction Fee or Restructuring Transaction Pee shall he paid to Solomon. However, a F'inanculg "Transaction I'ee shall be due i~z nrlrCitio~z to a Sale Transaction Fee or Restructtu•ing Transaction I~ee, unless the proceeds of such Financing are used as part of a Sale Ti-~~saction or a Restztlefirinb Transaction. In addition, tl~e reference to "Ywo years" in Section 6 ("Ierm) of the F?ngagement letter has been replaced with "]2 months.>, b 2722/99987-512 CURRENT/109774055v6 08/07/2019 12 25 PM Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 8 of 21 10. The Company also has agreed to reimburse Solomon monthly foz• its out-of- pocket expenses incuz~z~ed irl connection with the provision of its ser~~ices, the execution and delivery of the Ei~gagemei~t Letter and the consummation of any ~'z•ansaction, including without ]imitation the fees, disbursements and otl~ei• charges of Solomon's counsel; provided that the amount of such expenses for which Solomon play seek reimbmsernent from the Company shall not exceed $75,000 in the aggregate without the Company's consent (not to be unreasonably withheld). Out-of-pocket expenses also shall include, but not be limited to, travel and lodgii7g, data processing and communication charges, research and coux~iei• services. 11. The Fec and Expense Structure described above is comparable to compensation generally charged by other firms or similar stature to Solomon fog- compax•able engagements, both in and out of baz~ic~~uptcy. 1~1~e Fee and Expense Structure is also consistent with Solomon's normal and customary billing practices for cases or this size and complexity that require the level and scope of services outlined above.- I believe that the Fee and Lxpense Structuz•e is reasonable, ~u1d I further understand that the Debtors believe the Fee and expense Structure is reasonable. 12. In determining the level of compezisatiol~ to be paid to Solomon azid its reasonableness, Iunderstand that the Debtors compared Solomon's proposed fees with the range of investment banking fees iii other large and complex chaptez• 11 cases. The Pee and Expense Structure has been agreed upon by the parties in anticipation that a substantial comznitinent of piofessiona] time and effort will be required of Solomon and its professionals in colulection with these cl~aptet~ 1 l cases, that such com~~nitlner~i may foreclose other oppot-tunities for Solomon, and that the actual time and commit~l~ent requiz~ed of Solomon and its professionals to perforn7 its services in coiuleetioz~ with these chapter 11 cases may vary substantially fi-om week to week o~- month to month. 7 2722/999E37-512 CURRENT/109774055v6 08/07/2019 12:25 PM Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 9 of 21 13. I understand that tl~e Debtors believe Solomon has obtail~ed valuable institutional knowledge of the Debtozs' businesses, financial affairs anti c1•editot•s as a result of providing services to the Debtoz~s before the Petition Date and that Solomon is both well qualified and uniquely able to perform these services and assist the Debtors in these chapter• l 1 cases. Mor•eovcr, I understand that the Debtors believe that Solomon's services will assist the Debtors in a successful outcome of these chlptei- 11 cases. 14. Solomon's strategic and linancia] expez-tise as well as its capital markets knowledge, financing skills, x•estr~ucttuing capabilities anti me1•gers and acquisitions expertise, some or all of which may be required by the Debtors during the term of Soloillot~'s engagement i11 connection with these chapter 11 cases, were impoz•tant factors in determining the Fee and Expense Structure. Based on discussions with the Debtors, I understand the Debtors believe that the ultimate benefit of Solomon's services hereunder cannot be measured by reference to the number of hours to be expended by Solomon' pt•ofessiouals in the performance of such services. 15. Solomon has not shared or agreed to share any compensation to be paid by the Debtors with any other person, other than other principals and en7ployees of Solomon, in accordance with sectioi7 504 of the Bankruptcy Code. l 6. It is my uzaderstanding, in light of the foregoing and given the numerotas issues which Solomon ii~ay be required to addz~ess il~ the perfot-mance of its services hez•etnldei•, Solomon's comnutmez~t to the variable level of time and effort necessary to address all such issues as they arise, and the market prices for Solomon's services for engagements of this nature both out-of=colu-t and ii1 a chapter 11 context, the Debtors believe that the Fee and Expense StruciL~i-e is market-based and fair and reasonable under the standards set Foz•th in section 328(x) 8 2722/99987-512 CURRENT/109774055v6 08/07!2019 12.25 PM Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 10 of 21 of tlae I3anlcruptcy Code. Additionally, Solomon believes -that the Fee and Expense Structure is n~ai•ket-based and fair and reasonable under the standards set forth in section 32R(a) of the Ba»kruptcy Lode. 17. Accordingly, I understand that the Debtors believe that this Court should approve Solomon's retentioza subject to the standard of review set forth in section 328(a) of the Bankruptcy Code and that Solomon's compensation should not be subject to any additional standard of review under section 330 of the Bar~•uptcy Code. Disinterestedness 18. In connectiots with its proposed retention by the Debtors in these cases, Solotllon undertook to determine whether it lead any conflicts or- other• relationships that might cause it not to be disinterested or to hold or represent an interest adverse to the Debtors. Specifically, Solozzlon obtained from the Debtors representatives tl~e names of individuals and entities that nay be parties in interest in these cases (the "Potential Parties in Intez~est"), and such parties are listed on Schedule 1 attached hereto. I luldei•stand that this is the sa~~ie list the Debtors' counsel used to dete~7nizae if there are any potential conflicts in coiuZection with its retention application. 19. Solomon has researched its electronic client databases to determine connections with the I'otea~tial Parties in Interest. Tv the best of nay knowledge and belief, Solomon has not represented any Potential Parties in Interest in connection with znatteis re,laling to the Debtors or their estates, assets, or businesses and will trot represent oflier entities which a~~e ez-editors of, or have other• relationships to, the Debtors in mattez~s relating to these cases. 20. In addition, I understand that an email was broadly circulated within Solomon to inquire whether any employees or paz~tncrs at Solomon, or any member of such recipient's imz~ledrate fai7lily (spouse, minor children, oz' fatl~ily members living in your household)(i) have 9 2722/99987-512 CURRENT/109774055v6 08/07/2019 12'25 PM Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 11 of 21 any connection t~ the Potential Parties in Inte1-est; (ii) own an}~ equity security of any of the Debtors; (iii) own any debt security of~al~y of the Debtors;(iv) hold a general unsecured claim against any of the Debtors;(v) hold any other claim against any of the Debtors; or (vi) own more than one pei-ce;nt, manage oz~ otherwise control, or have any influence over any of the Potential Paz-ties in Interest. I understated that no affirmative response was received in response to any of these email inquiries. 21. Further, the email inquired whether az~y recipient of the email, or any member of such recipient's izl~mediate family,(i} leas, within the last two (2) yeaz•s, been an officer, di~•ector, or• employee of any of the Debtors or (ii) holds an intel•est materially adve~•se to interests of the Debtors, or oI'a11y class of creditors or equity security holders, by reason of any direct or indirect relatiotlslli}~ to; connection with, or interest in, the Debtors, or for any other• reason. I understand that no affirmative z~esponse was received iz~ response to these email inquiries. 22. Moreovez~, tlae email izaqui~•ed whether• any recipient, or any member of such recipient's immediate family, is related to (i) any ban]ci•uptcy judge for the Distz-ict of Delaware and/or (ii) any employee of t ie United States Trustee for Region 3. I understand that no aitirmative respo~lse was 1•eceived in response to these email inquiries. 23. Duz-ing the 90-day period before the Petition Date, Solomon received no payments in x•espect of fees and expenses. In accordance with the terms of its Engagement Letter, Salomon z~eceived a retainer iii the amount of $100,000 on June 10, 2019. 24. As of the Petition Date, the Debtors did not owe Solomon any fees or expenses inctu~rcd prior to the Petition Ua~te that ~~ill not be waived upon entry of the Proposed Order (including um•eiznbursed expelises in excess of amotmts paid to Solomon prepetition). 10 2722/99987-512 CURRENT/109774055v6 08/07/2019 12'25 PM Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 12 of 21 25. Tv the best of my knowledge, as set forth above, no individual assignment in which Solomon is involved appeared on tl~e Potential Parties in Interest, and accordingly, Wane of the entities listed on the Potential ~~arties in Interest accotmts for- more than 1.0% of Solomon's Inc.'s gross revenue during tl~e twelve month period prior to the date hereof. 26. Solomon provides investment banking and financial advisory services Co a wide variety of clients. As a result, Solomon has i-epr-esented, and may in the future represent, certain Potential Parties in Interest in matters utlrelated to these cases, either individually or• as pact of the representation of an ad hoc or official committee of creditors or• interest holders. To the best of my knowledge, information and belief, uisofat• as I have been able to ascertain after reasonable inc~uiiy, none of these representations are adverse tv the Debtors' interests. 27. In June 2016, Natixis acquired a 51 %stake in Solomon. NatiYis is the inte~~national corporate and investment banking, asset management, insura~lce, and financial sez•vices arm of Groupe BPCE, the 2iad-largest backing group in France. Natixis has a izumber of areas of eYper•tise that at•e orgaz7ized into four main business lines: Asset &Wealth Management, Corporate &Investment $ankizlg, Insu~~ance, and Specialized Financial Services, and it is possible that Natixis leas connections with the Potential Parties ~n Interest. However-, other• than t~Irough its connection to Solomon, to the best of i~1y 1cilowledge, Nati~is is not involved in advising any of the Debtors or their businesses. Accordingly, this disclosure is limited to Solomozi, and does not include any colvlections that its shareholder may, or may not, have with Pote~itizl Parties in Interest. 28. Based on the fol•egoing, to the best olmy knowledge and belief; neithet~ Solomon i~or I, nor any other employee of Solomon that will provide services to the Debtors in connection 2722/99987-512 CURRENT/109774055v6 08/07/2019 12.25 PM Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 13 of 21 with Phis engagement, has any connection with or holds any interest adverse to the llebtors, their estates or the Potential I'artxes in Interest. 29. In addition, to tlae hest of my knowledge, Solomon has t~eceived no revenue in the last 2 years from any of t~~e Pote~~tial Parties in Interest. Further, to the best of zny knowledge, there has been no outside business activities oz- private investments disclosed in Solomon's compliance system foi• any of the Potential PaY•ties in Interest. Moreover, tv the best of my knowledge, there is no curc•ent or o~~going mandates for• any Potential Parties in Interest i~a the ODEON check, which is ouz• firm's master Watch/IZestricted list system. 30. To the best of my knowledge, information, and belief, insofar as I have been able to ascertain after reasonable ii~quiiy, except with respect to the Engagement Lettez•, Solomon leas not been retained to assist any entity or Berson other than the Debtors on matters relating to, or in direct coz~ilection with, these cases. Solomon will, however, continue to provide professional services to other entities or pez•sous that may be creditors or equity security holders of the Debtors or iziterested parties i11 these cases; provided that such services do not relate to, or have any direct connection with, these cases or the Debto~•s. 31. I azn not related or connected to and, to the best o1' my knowledge, no other professioisa] of Solomon who will work on this engagement is t•elated o~• co~inected to, any United States 13anlct•uptcy Judge for the District of Delaware or any employee in the Office of tl~e United States Trustee Tor Region 3. 32. Accordingly, except as otherwise set forth herein, insofar• as I Have been able to dete7~z~linc, none v1'Solomon, I, nor any employee of Solomon who will work on t11e engageineni holds or ~-epr•esents ally interest adverse to the Debiors or ihe~r estates, and Solomon is a "disinterested person" as that te1~m is defined in Bankruptcy Code section 101(14), as modified 12 2122/99987-512 CURRENT/109774055v6 08/07/2019 12 25 PM Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 14 of 21 by section 1107(b), in t17at Solomon, a~ld its professionals and employees who will work on the engagement: (a} are not creditors, equity security l~oldeT•s oi• inside~•s of the Debtoz-s; (b) were not, within two years befoz•e the date of filizlg of the Dei~tors' chaptez• 11 petitions, a director, officer or employee of the Debtors; and (c) do not have an interest materially adverse to the interest of the Debtors' estates or any class of creditors or equity sectu~ity holdet•s, by reason of any direct oz• indirect z-elati~nshin tee; cot>>~P~tinr, with, oz• interest in, the Debtors, oi• for any other reason. 33. To the extent that Solomon discovers any additional facts bearing in a material respect on its disinterestedness duz•ing the ~~e7•iod of Solomon's retention in connection with these cases, Solomon will supplement this Declaration, as required by Bat~•uptcy Rule 2014(x). [Remainder of page left blank] l3 2722/99987-512 CURRENT/109774055v6 08/07/2019 1?_:25 PM Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 15 of 21 Pursuant to 28 U.S.C. ~ 174b, I declare under• penalty oFperjury tfaat the foregoing is true and correct to the best oI'my (cnowlecJge a►~d belief. Dated: August 7, 2019 Managing Director P,I Solomon, L,.P, 14 2722/999f37-512 CURRCNT/109774055v6 Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 16 of 21 SCH~DULE1 Interested Parties List 2722/99987-512 CURRENT/109774055v6 08/07/2019 12 25 PM Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 17 of 21 iPic Potential Parties In Interest BANK BONIFACIO DANIEL GONZALES ESTHER GYAMBTBI RENTERTA DAMEL HILTON- FARAH DHIA~.LD~1N JPNlorgan Chase BONITA BBCKIIAM ALLEN FRANCES NA'T'AL BRADFORD C BANTA DANIEL LE~VIS I~REDLRICIC ZUPP RF.,VOCABLE TRUS"1' DANTE MORTON GAI3RILLA ROSLS CLASS A EQUITY BRANDON MILTON- DARC~N WILSON GAB~2]ELLE SCALISE BAP'I'TSTf~' DA1tREN GULSTON GAVIN NICHOLS ABN[NAV T12IVF_,DI BRETT SOBLE DARRYL I,EVERSUCI i GEORGE 70SEPI~ ABHIS~I~K SI-IARMA I3KIAN AL~XANDBR DASETA GRAY GEORGE Ivi. PI~ILIP ADAM SCOT"1~ FQSHEE BRIAN STARK DAVE SHARMA GILDA WAI.,LACE ADORA CHERRY BRIANNA BTZANCH DAVID BATCHELOR BONN~NIERE AFTIN HAYMON BRIDGETTE DAVID BOOKER GLEN INGLIS AFUA WILSON WASHINGTON DAVID DZIEDZIC GRANT RAID ATAV $TTI.T '~~Rii i,~'iiVY S'~Ia TVi~ Lt1V AL lV1LLJ~ll,11t1J V1\1UVnI~ VYILL1Y11~J ALAN IZUIZ BROOKF SVJWT DAVID MILLER GRUPO SAN JOSE ALBERT'llONALDSON CAPATORIA WILSON DAVID RTCHARDSON HOLDINGS ALDINE WILLIAMS CARL SI-IEDD DAVID YlJ HAMID I-3ASHBM( AI.,F_,JnNDRA CARLTSA BCJRT DAWN FERRER HANAKA VIRASTTGUI CARMEN COSTBN DEBBIE ASI-ILLY DIVERSIFIED LLC ALEX ARCTIER CAKNIEN ROSS DEBORAH MENCONI f IARRISON GORMAN ALEX REID CAROLPORCHO DEBRA CARSON HECTOR GARCIA DE ALEXANDRA CAROLYN JONES DELSIIVA WEST QIJEVLUU KUR SAI~CHE7 CASSANDRA ILLIDGE DERETC YOUNG HENRY '~VEBB ALLYSON GRAY CASS~INDRA SMITH DEWTLLIANNE HERBERT LAZ~\RUS AMBROSG PHILLIPS CATHEKINE FISHER BRTSCOERAY I-IFRIB~RTO COLLAZO AtvIELIA FRENCH CATI-IERINL' NI BANTA DIANA GUEVARA HIL~IKY f-iENRY AMY PILRCE REVOCABLE TRUST DIf1NL L~WIS HILDA MORIZTS- ANA SALMON CATHERINE DOLORES WATICINS JACI 272?_/999II7-512 CURRENT/109860961 v1 0/06/2019 7.08 PM Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 18 of 21 JENNIFER DOTSON I 2722/99987-512 CURRENT1109860961v1 08/06/2019 7:OII PM Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 19 of 21 SUZANNE NOBLL DARRYL THEODORE DIRECTORS ID &Design SY~D S~IAI{IR LEVERSUCH International, ]nc. '1'AVIMAKA HASHEMI HOLDINGS Andrew Essex Integrated Nledia Systms MCDONALD LLC Dana Messina IPFS Corporation TANDRA CHEATHAM HAYLEY HASHBMI George Philip Jackson Lewis P.C. TARAH MURPI-iY IRREV INV TRUST Robert Kirby Lane Valente Industries TAW~NA JONES HBIC LENDER Paramount Pictures / TAYLOR JAPFEL EN'I'ERTAINYIENT Dreamwor( 2722/99987-512 CURRENT/109860961 v1 08/06/2019 7.08 PM Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 20 of 21 Jackson Walker LLP CA Dept of Alcoholic Florida Department of Tax Collector, Palm Jameson Babbitt Stites & $everage Control Financial Services Belch County Lombard CA State Controller's Florida Department of 'Texas Comptroller of Jeffer Mangels Butler & Office Revenue Public Accounts Mitchell LLP California Department of Florida Department of Texas Department of TCing &Spalding LLP City o'f Austin State "Texas State Comptroller IClugei• Kaplan Silverman City of Boca Raton Franchise Tax Board Town of Fairview Katcen &Levine City Of Boca Raton Banla•uptcy Section Travis County Clerk Kroll, McNamara, Evans City Of Glendale Harris County Clerk `Travis County Tax Office & Delehanty, LLP City of T~ouston Illinois Department of Treasin-er, City of Mediant Canmunications City of Los Angeles Revenue Glendale Inc. Treasw•er Tilinois Liquor- Control Treasure•, State of New PachulslWisconsin Department o~ Tools &Solutions Revenue Services Maun, Kenneth L. Revenue Commissioner of Miami Dade County Wisconsin SC`1'F S~CUR~D Taxation and Finance Miami-Dade Tax Wisconsin State Treasury PARTIES Co~mnissioner of Collector Taxation and Finance Montgomery County UTILITIES Comptroller of Public New Jersey llivision of `I'EACNERS' Accounts Taxation Airespri~ig RETIRENtENT Cool< Cotmty - New Yorlc City AT~i.`I' SYSTEM OF Amusement "lax Department of Finance AT&'I' Ntobility AIABAMA Cook County New Yoi•Ic State Athens Services TI-IE EMPI,OYELS' Government Department of State Inc-iimazon Web RLTIRE1bIF_NT AWS Delaware Division of New Yorl< State Filing Services, Inc SYS"I~ENI OF Corporations Fee Centerpoint ~neigy ALABAMA Delaware Secretary of NJ Div of Alcoholic Central Texas Refuse, State Beverage Control Inc. TAXES Delray Beach CRA NY State Liquor CenturyLinf< Department of Alcoholic Atttl~ority Champion Energy AI~b1m1 Depardneilt of Beverage Control NYC Department of Ser~~ices, LLC Revenue Department of Finance CI"I"Cechnology (Avaya) Ann Harris Bennett - Assessments &Taxation NYS Corporatiai Tax City of Austin I-Iarris County Department of Office of Finance, City City of Boca Raton Arizona Corporation Assessments and Of Los Angeles City of lleh-ay Beach Conunission Taxation Patin Beach County Tax City of Los Angeles Arizona Deparhnent of Department of Financial Collector City of North ivliami Revenue II15t14UtIOt1S Secretary of State Beach ~~rizona Department of Department of Revenue - Sharon R Bock, Clerk & City of Pasadena Revenue State of WA Comptroller City of Scottsdale Arizona Dept of Liquor Department of State State Board of City Waste I,P Licenses Control DeE~t of Business &Prof. Equalization Corncasi Arizona Secretary o1~ Regulations State Department of ComEd State Division of Alcoholic State Of New Jersey Consolidated Edison nrizona Unclaimec{ Bev &Tobacco SCate of Washington Dept Company oPNY, lnc. Property Unit Division of Hoteis and of Revenue CoSeiv Bergen County Cleric Restaurants "1'ax Collector, T'alm Dever li~tracoastal lvlall Borough of Dort Lee F'mployment Beach County Direct Iinergy F3usiness F3o~u~o~igh of Paramus Development Dept DIK~CTV 272 2199987-5 1 2 CURRENT/109860961 v1 08/06/2019 7:0£S PM Case 19-11739-LSS Doc 94-3 Filed 08/13/19 Page 21 of 21 FC Janes P1rlc Flexentiat South Florida Corp. Florida Pu61ic Utilities FPL Frontier• Gexa Ene~~gy Grande Communications Green Mountain energy I{eter Environmental Scivices, Inc. LoopUp LLC Los Angeles Dept of ~Jate~ °;; ~~e~ Los Angeles Public Health Nicor Gas OMB Hous[on I,P Pepco PSE&G Puget Sound Energy Qwest Kiver Oaks District.LP SeaviceCl}a~mel.com, lnc. SoCalGas Southern C1lifornia Edison SouthWaste Disposal Southwest Gas Corporation Texas Gas Service 'Time Warner Cable V erizor~ VFS Fire &Security Services Village at Purview ti~8S~1~I1bt011 ~7ftS GVasCe Ivlai~agement b'✓aste Management of /lriroiia ~V1ste Management of l~~ew I'oi•k, LLC WE Energies W indstream-P~etec Winters Bros. Hauling of C`I', LLC Withers Worldwide XO Conununications Allied Waste Systems, Inc. 2722/99987-512 CURRENT/909860961 v1 08/06/2019 7 O8 PM Case 19-11739-LSS Doc 94-4 Filed 08/13/19 Page 1 of 7 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT QF DELA«ARE In re: Chapter 11 iPic-Gold Class Entertainment, LLC, et al.,~ ~ Case No. 19-11739(LSS) Debtors. ~ (Jointly Administered) CERTIFICATE OF SERVICE I, Peter J. Keane, hereby certify that on the 13th day of August, 2019, I caused a copy of the following documents) to be served on the individuals) on the attached service lists) in the manner indicated: ivotice of Debtors' Application for Entry of an Order:(I) Authorizing Debtors to Employ and Retain P3 Solomon as Investment Banker to the Debtors Effective Nunc Pro Tunc to the Petition Date,(II) Approving the Terms of the Engagement Letter,(III) NTodifying Certain Time-Keeping Requirements, and (IV) Granting Related Relief Debtors' Application for Entry of an Order:(I) Authorizing Debtors to Employ and Retain PJ Solomon as Investment Banker to the Debtors Effective Nulzc Pro Tznic to the Petition Date,(II) Approving the Terms of the Engagement Letter,(III) NTodifying Certain Time-Keeping Requirements, and (IV) Granting Related Relief /s/Peter J. Kecc~ze Peter J. Keane(DE Bar No. 5503) ~ The Debtors in these chapter I 1 cases, along ~viYh tl~e last fow- digits of each Debtor's federal tax identification number, as applicable, are: iPic Entertai»ment Inc.(9582); iPic-Gold Class E~~tertai~unent, LLC (4684); iPic Gold Class Holdings LLC (6315); iPic Media LLC (0150); iPic Texas, LLC (N/A); and Delray Beach Holdings, LLC (1035). "The Debtors' ~rii~cipal place of business is 433 Plaza Real, Suite 335, Boca RaCon, FI.. 33432. DOGS DF234935.1 39 66/0O2 Case 19-11739-LSS Doc 94-4 Filed 08/13/19 Page 2 of 7 iPic-Gold Class Entertainment 2002 Service HAl~TD DELIVERY List FCM David C. Weiss, Esquire Case No. 19-11739(LSS) c/o Ellen Slights, Esquire Document No. 224842 US Attorney's Office 08 —Hand Deliveries District of Delaware 57 —First Class Mail Hercules Building, Suite 400 O l —Foreign First Class 1313 N. Market Street Wilmington, DE 19801 ([Proposed] Attorneys for Debtors and HAND DELIVERY Debtors in Possession) (Counsel to Teacher's' Retirement System of Jeffrey N. Pomerantz, Esquire Alabama ("TRSA") and Employees' Debra I. Grassgreen, Esquire Retirement System of Alabama (`BRSA")) Peter J. Keane, Esquire Richard A. Robinson, Esquire 919 N. Market Street, 17th Floor J. Cory Falgowski, Esquire P.O. Box 8705 Burr &Forman LLP Wilmington, DE 19801 1201 N. Market Street, Suite 1407 Wilmington, DE 19801 HAND DELIVERY Benjamin Hackman, Esquire HAND DELIVERY Office of the United States Trustee (Counsel to Federal Realty Investment J. Caleb Boggs Federal Building, Suite 2207 Trust; Starwood Retail Partners LLC) 844 King Street Leslie C. Heilman, Esquire Lockbox 35 Ballard Spahr LLP Wilmington, DE 19801 919 N. Market Street, ll th Floor Wilmington, DE 19801-3034 HAND DELIVERY Kathy Jennings, Esquire NAND DELIVERI' Delaware Department of Justice (Counsel to Delray Beach 4th &.5th Avenue Carvel State Office Building, 6th Floor LLC) 820 N. French Street Michael R. Lastowski, Esquire Wilmington, DE 19801 Duane Morris LLP 222 Delaware Avenue, Suite 1600 HAND DELIVERY Wilmington, DE 19801-1659 Zillah A. Frampton Banla-uptcy Administrator HAND DELIVERI' Delaware Division of Revenue (Counsel to TDC Fort Lee LLC) Carvel State Office Building, 8th Floor Gregory A. Taylor, Esquire 820 N. French Street Ashby &Geddes, P.A. Wilmington, DE 19801 500 Delaware Avenue, 8th Floor Wilmington, DE 19801 DOGS DE:224S42.1 3)~6G/001 Case 19-11739-LSS Doc 94-4 Filed 08/13/19 Page 3 of 7 FIRST CLASS MAIL William Barr, Esquire FIRST CLASS MAIL Office of the US Attorney General Office of the Chief Counsel U.S. Department of Justice Pension Benefit Guaranty Corporation 950 Pennsylvania Avenue, NW,Room 4400 1200 K Street, NW Washington, DC 20530-0001 Washington, DC 20005 FIRST CUSS N1~IL FIRST CLASS MAIL State of Delaware Internal Revenue Service Division of Corporations -Franchise Tax Centralized Insolvency Operation John G. Townsend Building, Suite 4 PO Box 7346 PO Box 898 Philadelphia, PA 19101 Dover, DE 19903 FIRST CUSS 11~IAIL FIRST CLASS MAIL (Counsel to Brookfield Property REIT, Inc., Delaware Secretary of Treasury Regency Centers L.P. and Shopcore 820 Silver Lalce Boulevard, Suite 100 Properties L.P.) Dover, DE 19904 Robert L. LeHane, Esquire Jennifer D. Raviele, Esquire FIRST CLASS MAIL Kelley Drye &Warren LLP Office of General Counsel 101 Park Avenue U.S. Department of the Treasury New York, NY 10178 1500 Pennsylvania Avenue, NW Washington, DC 20220 FIRST CLASS MAIL (Landlord) FIRST CLASS MAIL Kristen N. Pate, Esquire Office of General Counsel Brookfield Property REIT, Inc., as Agent Securities &Exchange Commission 350 N. Orleans Street, Suite 300 100 F Street, NE Chicago, IL 60654-1607 Washington, DC 20554 FIRST CLASS 1~~IAIL FIRST CLASS MAIL Simon Property Group, L.P. Sharon Binger, Regional Director Attn: Ronald M. Tucker, Esquire Philadelphia Regional Office 225 W. Washington Street Securities &Exchange Commission Indianapolis, IN 46204 One Penn Center, Suite 520 1617 JFK Boulevard FIRST CLASS 1b~AIL Philadelphia, PA 19103 (Counsel to Teachers' Retirement System of Alabama ("TRSA") and Employees' FIRST CLASS MAIL Retirement System of Alabama ("ERSA")) Andrew Calarnari, Regional Director Derek F. Meelc, Esquire New Yorlc Regional Office Jeffrey T. Balser, Esquire Securities &Exchange Commission Bun' &Forman LLP Brookfield Place, Suite 400 420 N. 20th Street, Suite 3400 200 Vesey Sti-eet Birmingham, AL 35203 New Yorlc, NY 10281 pOCS D1=:_'_4J42.1 3966/001 Case 19-11739-LSS Doc 94-4 Filed 08/13/19 Page 4 of 7 FIRST CLASS MAIL FIRST CLASS MAIL (Counsel to Washington Prime Group, Inc.) (Counsel to TDC Fort Lee LLC) Ronald E. Gold, Esquire Carey D. Schreiber, Esquire A.J. Webb, Esquire Winston & Strawn LLP Frost Brown Todd LLC 200 Park Avenue 3300 Great American Tower New Yorlc, NY 10166-4193 301 E. Fourth Street Cincinnati, OH 45202 FIRST CUSS Mt~IL (Counsel to Paramount Pictures FIRST CUSS 11~TE'~IL Corporation) (Counsel to City of Fairview) Richard Stern, Esquire Elizabeth Weller, Esquire Stephan E. Hornung, Esquire Linebarger Gogan Blair &Sampson, LLP Luskin, Stern &Eisler LLP 2777 N. Stemmons Freeway, Suite 1000 Eleven Times Square Dallas, TX 75207 New York, NY 10036 FIRST CLASS 1VTAIL FIRST CLASS lYI~IL (Counsel to Harris County) (Top 30 Creditors) John P. Dillman, Esquire Yetter Coleman LLP Linebarger Gogan Blair &Sampson, LLP 811 Main Street, Suite 4100 PO Box 3064 Houston, TX 77002 Houston, TX 77253-3064 FIRST CLASS MAIL FIRST CLASS MAIL (Top 30 Creditors) (Counsel to Heather Rosenstein) Class Action Claimants Joseph E. Sarachek, Esquire KJT Law Group LLP The Sarachek Law Firm Vache A. Thomassian 101 Parlc Avenue, 27th Floor 230 North Maryland Ave. New York, NY 10178 Suite 306 Glendale, CA 91206-4281 FIRST CLASS nTAIL (Counsel to Delray Beach 4th & 5th Avenue FIRST CLASS MAIL LLC) (Top 30 Creditors) James F. Wallacic, Esquire Adams Employment Counsel Peter Bilowz, Esquire Christopher A. Adams Goulston &Storrs PC 4740 Calle Carga 400 Atlantic Avenue Camarillo, CA 93012 Boston, MA 02110-3333 FIRST CLASS MAIL FIRST CLASS MAIL (Top 30 Creditors) (Counsel to Stai~vood Retail Partners LLC) Walt Disney Studio Pictures Dustin P. Branch, Esquire Sandy Moruzzi Ballard Spahr LLP PO Box 732554 2029 Century Parlc East, Suite 800 Dallas, TX 75373 Los Angeles, CA 90067-2909 rocs i~L:~z4~a2.i ~ys~~~iooi Case 19-11739-LSS Doc 94-4 Filed 08/13/19 Page 5 of 7 FIRST CLASS MAIL FIRST CLASS MAIL (Top 30 Creditors) (Top 30 Creditors) Walt Disney Studio Pictures Hodges &Associates, PLLC Sandy Moruzzi Gerald Luecke, President 500 South Buena Vista Street 13642 Omega Road Burbank, CA 91521 Dallas, TX 75244-4514 FIRST CUSS MAIL FIRST CLASS 1~~IAIL (Top 30 Creditors) (Top 30 Creditors) Sysco SDQ Fee, LLC 1390 Enclave Parkway Greg Zimmerman Houston, TX 77077-2099 15059 N. Scottsdale Rd Suite 205 FIRST CLr~SS NTAIL Scottsdale, AZ 85254 (Top 30 Creditors) Sony Pictures FIRST CLASS MAIL Robin Kittrell (Top 30 Creditors) PO Box 840550 SDQ Fee, LLC Dallas, TX 75284-0550 c/o WP Glimcher 180 E. Broad Street, 21st Floor FIRST CLASS n'IAIL Columbus, OH 43215 (Top 30 Creditors) Sony Pictures FIRST CLASS MAIL Robin Kittrell (Top 30 Creditors) 10202 West Washington Blvd Integrated Media System Culver City, CA 90232 DBA Be Media 9729 Lurline Ave FIRST CUSS 1VI~,IL Chatsworth, CA 91311 (Top 30 Creditors) TDC Fort Lee LLC FIRST CLASS 1~~T~IL c/o Lincoln Eastern Management Corp (Top 30 Creditors) 2030 Hudson Street Crowe LLP Unit 520 320 E Jefferson Blvd Fort Lee, NJ 07024 South Bend, IN 46624 FIRST CLE~SS MAIL FIRST CUSS MAIL (Top 30 Creditors) (Top 30 Creditors) Ecostruction LLC Federal Realty Investment Trust Saln Modzelewslci Lock Box #9320 Jeff Grueninger PO Box 8500 946 NE 80th Street Philadelphia, PA 19178-9320 Miami, FL 33138 4 DOGS DE:?24542.1 39566/001 Case 19-11739-LSS Doc 94-4 Filed 08/13/19 Page 6 of 7 FIRST CLASS MAIL FIRST CLASS A'IAIL (Top 30 Creditors) (Top 30 Creditors) Federal Realty Investment Trust Schindler Elevator Corporation 1626 E. Jefferson St. U.S. Headquarters Rockville, MD 20852 20 Whippany Road Mon-istown, NJ 07960 FIRST CLE~SS MAIL (Top 30 Creditors) FIRST CLE~SS iVIAIL ID &Design International, Inc. (Top 30 Creditors) Casie Idle Softeq Development Corporation 5100 North Dixie Highway 1155 Dairy Ashford Fort Lauderdale, FL 33334 Suite 125 Houston, TX 77079 FIRST CLASS P~IAIL (Top 30 Creditors) FIRST CLASS MAIL Universal Film Exchanges (Top 30 Creditors) PO BOX: 848270 Stainless Fixtures Inc Dallas, TX 75284-8270 1250 E Franklin Avenue Carla Ortiz Pomona, CA 91766 TIRST CLASS NTAIL FIRST CLASS MAIL (Top 30 Creditors) (Top 30 Creditors) Bank of America Locicbox Services 7acicson Lewis PC 1950 N Stemmons Fwy David G. Hodes, Jr. Ste 5010, Locicbox# 848270 Managing Principal Dallas, TX 75207-3199 225 Broadway Suite 2000 San Diego CA 92101 RST CLASS MAIL (Top 30 Creditors) FIRST CLASS MAIL Paramount Pictures / Dreamworks (Top 30 Creditors) Beth Ozburn Delray Beach 4th & 5th Avenue LLC PO Box 748774 c/o Samuels &Associates Management Los Angeles, CA 90074-8774 LLC 136 Brookline Avenue I'IRST CLASS MAIL Boston, MA 2215 (Top 30 Creditors) Paramount Pictures / Dreamworlcs TIRST CUSS NI~IL Beth Ozburn (Top 30 Creditors) 5515 Melrose Ave, Driscoll Foods Los Angeles, CA 90038 P. Carson 174 Delawanna Ave Clifton, NJ 07014 noes ~~-_:??asa~.i ~ys~~i~oi Case 19-11739-LSS Doc 94-4 Filed 08/13/19 Page 7 of 7 FIRST CLASS MAIL FIRST CLASS NTAIL (Top 30 Creditors) (Top 30 Creditors) Spencer Stuart Village FV Ltd David Mac Eachern c/o LPC Retailing Accounting, 355 Alhambra Cir Suite 1300 Dennis Streit, CFO Coral Gables, FL 33134 2000 McKinney Ave STE 1000 FIRST CLASS MAIL Dallas TX 75012 027 (Top 30 Creditors) IPFS Corporation FOREIGN FIRST CLASS Vera Kagan, Assoc. General Counsel (Top 30 Creditors) P.O. Box 730223 Superl Sequoia Limited Dallas, TX 75373-0223 Unit 612, 6/F Tower 1 833 Cheung Sha Wan Road Kowloon, FIRST CLASS 1~iAIL Hong Kong (Top 30 Creditors) AVCO Center Corporation Bob yari, President 10850 Wilshire Blvd Ste 1050 Los Angeles, CA 90024 FIRST CLASS MAIL (Top 30 Creditors) Cardlytics Inc. Scott D. Grimes, CEO 675 Ponce de Leon Ave NE Suite 6000 Atlanta, GA 30308 I'IRST CLASS 1VIAIL (Top 30 Creditors) Lane Valente Industries 20 Keyland Court Bohemia, NY 11716 FIRST CLASS MAIL (Top 30 Creditors) 1~merica's Escape Game Jim Llewllyn, COO 8723 International Dr. Orlando, FL 32819 6 DOCS DL:224b42.1 39566/001