Free Designated Record on Appeal - District Court of Delaware - Delaware

Case 1:06-cv-00588-JJF

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: GLOBAL HOME PRODUCTS, LLC, et al.,1 Debtors. ) ) ) ) ) ) )

Case No. 06-10340 (KG) (Jointly Administered) Chapter 11

STATEMENT OF ISSUES AND DESIGNATION OF RECORD BY APPELLANT REGAL WARE, INC. Regal Ware, Inc., appellant, hereby states the following as the issues on appeal and its designation of the record with respect to its appeal pursuant to 28 U.S.C. § 158(a) from the final judgment of the Bankruptcy Court entered in the above captioned bankruptcy case on August 14, 2006 [Docket No. 664], approving the Motion of Debtors for the Entry of an Order (I) Approving Sale by the Wearever Debtors of Substantially all of Wearever Debtors' Assets Free and Clear of all Liens, Claims, Enbumbrances and Other Interests, (II) Assuming and Assigning Certain Executory Contracts and Unexpired Leases, and (III) Granting Related Relief (the "Sale Motion") and denying Regal Ware's Objection to the Sale Motion [Docket No. 618]: II. 1. ISSUES ON APPEAL

Whether the Bankruptcy Court erred as a matter of law in determining that Regal

Ware's exclusive trademark license is freely assignable, notwithstanding that Regal Ware retained full ownership of the marks, and notwithstanding the restrictions on assignment contained in Regal Ware's license agreement?
The Debtors are the following entities: Global Home Products LLC; GHP Holding Company LLC; GHP Operating Company LLC; Anchor Hocking Acquisition Inc.; Anchor Hocking Inc.; AH Acquisition Puerto Rico, Inc.; Anchor Hocking Consumer Glass Corporation; Anchor Hocking CG Operating Company LLC; Anchor Hocking Operating Company LLC; Burnes Acquisition Inc.; Intercraft Company; Burnes Puerto Rico, Inc.; Picture LLC; Burnes Operating Company LLC; Mirro Acquisition Inc.; Mirro Puerto Rico, Inc.; Mirro Operating Company LLC.
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2.

To the extent that the Bankruptcy Court made any finding of fact -- which Regal

disputes took place -- relating to the reasonableness of Regal's withholding of consent to assignment, whether such a finding by the Bankruptcy Court constitutes reversible error, since, among other things, no information was given to Regal with respect to the proposed assignee other than public financials? III.
DATE

DESIGNATION OF THE RECORD
ITEM Motion to Approve Motion of the Debtors for an Order (I) (A) Approving Sale Procedures and Overbid Protections in Connection with Sale of Substantially All of the Operating Assets Owned by the WearEver Debtors; (B) Scheduling an Auction and Hearing to Consider Approval of the Sale; (C) Approving Notice of Respective Dates, Times and Places for Auction and for Hearing on Approval of (i) Sale and (ii) Assumption and Assignment of Certain Executory Contracts and Unexpired Leases; (D) Approving Forms of Notice; (II) Approving Inventory Advance Provisions and Granting Security Interests and Superpriority Claim; and (III) Granting Related Relief (Requested Objection Deadline: 7/11/06 at 12:00 p.m.) (Requested Hearing Date: 7/12/06 at 4:00 p.m. at U.S. District Court, 844 King Street, Courtroom 2B, Wilmington, DE 19801) Filed by Global Home Products LLC. (Attachments: # 1 Notice # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Proposed Form of Order) (Jones, Laura Davis) (Entered: 07/07/2006) Motion to Shorten Time Motion to Fix Hearing Date on and Shorten Time to Object or Respond to Motion of the Debtors (I) (A) Approving Sale Procedures and Overbid Protections in Connection with Sale of Substantially All of the Operating Assets Owned by the WearEver Debtors; (B) Scheduling an Auction and Hearing to Consider Approval of the Sale; (C) Approving Notice of Respective Dates, Times and Places for Auction and for Hearing on Approval of (i) Sale and (ii) Assumption and Assignment of Certain Executory Contracts and Unexpired Leases; (D) Approving Forms of Notice; and (II) Approving Inventory Advance Provisions and Granting Security Interests and Superpriority Claim; and (III) Granting Related Relief (Requested Objection Deadline for Procedures Motion: 7/11/06 at 12:00 p.m.) (Requested Hearing Date for Procedures Motion: 7/12/06 at 4:00 p.m. at U.S. District Court, 844 King Street, Courtroom 2B, Wilmington, DE 19801) (related document(s)511 ) Filed by Global Home Products LLC. (Attachments: # 1 Proposed Form of Order) (Jones, Laura Davis) (Entered: 07/07/2006)

DOCKET NO.

7/7/2006

511

7/7/2006

512

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7/10/2006

515

Order Fixing Hearing And Shortening Notice On The Debtors' Motion To Fix Hearing Date On And Shorten Time To Object Or Respond To Motion Of The Debtors For An Order (I)(A) Approving Sale Procedures And Overbid Protections In Connection With Sale Of Substantially All Of The Operating Assets Owned By The Wearever Debtors; (B) Scheduling An Auction And Hearing To Consider Approval Of The Sale; (C) Approving Notice Of Respective Dates, Times And Places For Auction And For Hearing On Approval Of (i) Sale And (ii) Assumption And Assignment Of Certain Executory Contracts And Unexpired Leases; (D) Approving Forms Of Notice; (II) Approving Inventory Advance Provisions And Granting Security Interests And Superpriority Claim; And (III) Granting Related Relief. (Related Doc # 512) Signed on 7/10/2006. (BMT, ) (Entered: 07/10/2006) Order (I)(A) Approving Sale Procedures and Overbid Protections in Connection with Sale of Substantially All of the Operating Assets Owned By the Wearever Debtors; (B) Scheduling an Auction and Hearing to Consider Approval of the Sale; (C) Approving Notice of Respective Dates, Times and Places for Auction and for Hearing on Approval of (i) Sale and (ii) Assumption and Assignment of Certain Executory Contracts and Unexpired Leases; (D) Approving Forms of Notice; (II) Approving Inventory Advance Provisions and Granting Security Interests and Superpriority Claim; and (III) Granting Related Relief. (Related Doc # 511, 525) Order Signed on 7/14/2006. (LCN, ) (Entered: 07/14/2006) Amended Agreement/Notice of Filing of First Amendment to Agreement with Lifetime Brands, Inc. (related document(s)525, 511 ) Filed by Global Home Products LLC. (Attachments: # 1 Exhibit 1) (Grohsgal, Bruce) (Entered: 07/14/2006) Motion to Approve SaleMotion of the Debtors for an Order: (I) Approving Sale by the WearEver Debtors of Substantially All of the WearEver Debtors' Operating Assets Free and Clear of All Liens, Claims, Encumbrances and Other Interests Pursuant to Sections 363(b), (f) and (m) of the Bankruptcy Code, (II) Assuming and Assigning Certain Executory Contracts and Unexpired Leases, and (III) Granting Related Relief Filed by Global Home Products LLC Hearing scheduled for 8/8/2006 at 10:00 AM at US District Court, 844 King St., Courtroom #2B, Wilmington, Delaware. Objections due by 8/1/2006.. (Attachments: # 1 Notice # 2 Exhibit A# 3 Proposed Form of Order) (Jones, Laura Davis) (Entered: 07/14/2006) Notice of Sale Procedures, Auction Date, and Sale Hearing Filed by Global Home Products LLC. (Attachments: # 1 Affidavit of Service) (Jones, Laura Davis) (Entered: 07/14/2006) Notice of Sale Hearing and Auction Filed by Global Home Products LLC. (Attachments: # 1 Affidavit of Service) (Jones, Laura Davis) (Entered: 07/18/2006)

7/14/2006

547

7/14/2006

548

7/14/2006

549

7/14/2006

550

7/18/2006

556

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7/26/2006

590

Exhibit Notice of Filing of Corrected Schedule of Executory Contracts and Unexpired Leasese that May be Assumed or Assigned Under the Agreement or any Competing Agreement (related document(s)584, 547 ) Filed by GHP Holding Company LLC. (Attachments: # 1 Exhibit A# 2 Affidavit of Service and Service List) (Selzer, Sandra) (Entered: 07/26/2006) Objection to -- OBJECTION OF REGAL WARE, INC. TO MOTION OF THE DEBTORS FOR AN ORDER (I) APPROVING SALE BY THE WEAREVER DEBTORS OF SUBSTANTIALLY ALL OF THE WEAREVER DEBTORS OPERATING ASSETS FREE AND CLEAR OF ALL LIENS, CLAIMS, ENCUMBRANCES AND OTHER INTERESTS PURSUANT TO SECTIONS 363(B), (F) AND (M) OF THE BANKRUPTCY CODE, (II) ASSUMING AND ASSIGNING CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED LEASES, AND (III) GRANTING RELATED RELIEF (related document(s)584, 547, 590, 511, 549 ) Filed by Regal Ware, Inc. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C Part 1 of 2.pdf# 4 Exhibit C Part 2 of 2.pdf# 5 Certificate of Service) (Kortanek, Steven) (Entered: 08/03/2006) Motion to Compel Debtors' Emergency Motion to Expedite Discovery Relating to the Objection of Regal Ware, Inc., to Motion of the Debtors for Order (I) Approving Sale by the Various WearEver Debtors of Substantially all of the WearEver Debtors Operating Assets Free and Clear of All Liens, Claims, Encumbrances and Other Interests Pursuant to Sections 363(B), (F) and (M) of the Bankruptcy Code, (II) Assuming and Assigning Certain Executory Contracts and Unexpired Leases, and (III) Granting Related Relief Filed by Global Home Products LLC Hearing scheduled for 8/7/2006 at 10:00 AM at US District Court, 844 King St., Courtroom #2B, Wilmington, Delaware. Objections due by 8/4/2006.. (Attachments: # 1 Proposed Form of Order # 2 Certificate of Service and Service List) (Grohsgal, Bruce) (Entered: 08/03/2006)

8/3/2006

618

8/3/2006

624

8/3/2006

625

Motion to Shorten Time Motion for Order Fixing Hearing and Shortening Notice on Debtors' Emergency Motion to Expedite Discovery Relating to the Objection of Regal Ware, Inc., to Motion of the Debtors for Order (I) Approving Sale by the Various WearEver Debtors of Substantially all of the WearEver Debtors Operating Assets Free and Clear of All Liens, Claims, Encumbrances and Other Interests Pursuant to Sections 363(B), (F) and (M) of the Bankruptcy Code, (II) Assuming and Assigning Certain Executory Contracts and Unexpired Leases, and (III) Granting Related Relief (related document(s)624 ) Filed by Global Home Products LLC Hearing scheduled for 8/7/2006 at 10:00 AM at US District Court, 844 King St., Courtroom #2B, Wilmington, Delaware. Objections due by 8/4/2006.. (Attachments: # 1 Proposed Form of Order # 2 Certificate of Service and Service List) (Grohsgal, Bruce) (Entered: 08/03/2006)

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8/7/2006

629

Motion to Continue Hearing On Sale, Assumption and Assignment -Motion of Regal Ware, Inc. to Adjourn Hearing on Assumption and Assignment of Regal Ware, Inc.'s Trademark Sublicense Agreement, and Objection of Regal Ware, Inc. to (i) Debtors' Emergency Motion to Expedite Discovery and (ii) Debtors' Motion to Shorten Time [Related Docket Nos. 624, 625], Filed by Regal Ware, Inc. Hearing scheduled for 8/7/2006 at 10:00 AM at US District Court, 844 King St., Courtroom #2B, Wilmington, Delaware. Objections due by 8/7/2006.. (Attachments: # 1 Exhibit) (Kortanek, Steven) (Entered: 08/07/2006) Order Fixing Hearing and Shortening Notice on Debtors' Emergency Motion to Expedite Discovery Relating to the Objection of Regal Ware, Inc., to Motion of the Debtors for Order (I) Approving Sale By the Various Wearever Debtors of Substantially All of the Wearever Debtors Operating Assets Free and Clear of All Liens, Claims, Encumberances an Other Interests and (II) Assuming and Assigning Certain Executory Contracts and Unexpired Leases, and (III) Granting Related Relief. (Related Doc # 625) Order Signed on 8/4/2006. (TK, ) (Entered: 08/07/2006) Reply to Objection of Regal Ware, Inc., to Motion Of The Debtors for Order (I) Approving Sale by the Various Wearever Debtors of Substantially all of the Wearever Debtors Operating Assets Free and Clear of all Liens, Claims, Encumbrances and Other Interests Pursuant to Sections 363(b), (f) and (m) of the Bankruptcy Code, (II) Assuming and Assigning Certain Executory Contracts and Unexpired Leases, and (III) Granting Related Relief (related document(s)618, 549 ) Filed by Global Home Products LLC (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C, Part I# 4 Exhibit C, Part II) (Jones, Laura Davis) (Entered: 08/07/2006) Joinder of Wachovia Bank, National Association to Debtors' Reply to Objection of Regal Ware, Inc. to Motion of the Debtors for Order (I) Approving Sale by Various Wearver Debtors of Substantially All of the Wearever Debtors Operating Assets Free and Clear of All Liens, Claims Encumbrances and Other Interests Pursuant to 363(B),(F) and (M) of the Bankruptcy Code, (II) Assuming and Assigning Certain Executory Contracts and Unexpired Leases; and (III) Granting Related Relief (related document(s)618, 631, 549 ) Filed by Wachovia Bank, National Assocation. (Attachments: # 1 Certificate of Service) (Huston Jr., Joseph) (Entered: 08/07/2006) Brief Supplemental Memorandum Of Regal Ware, Inc. In Support Of Objection To Assignment Of Trademark Sublicensing Agreement (related document(s)618, 631 ) Filed by Regal Ware, Inc.. (Scoliard, Jennifer) (Entered: 08/07/2006)

8/7/2006

630

8/7/2006

631

8/7/2006

633

8/7/2006

639

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Brief Amended Supplemental Memorandum Of Regal Ware, Inc. In Support Of Objection To Assignment Of Trademark Sublicensing Agreement (related document(s)639 ) Filed by Regal Ware, Inc.. (Attachments: # 1 Certificate of Service) (Scoliard, Jennifer) (Entered: 08/07/2006) Certification of Counsel Regarding Revised Proposed WearEver Sale Order (related document(s)549 ) Filed by Global Home Products LLC. (Attachments: # 1 Proposed Form of Order (Clean)# 2 Proposed Form of Order (Blackline)) (Grohsgal, Bruce) (Entered: 08/11/2006) Amended Certification of Counsel Regarding Revised Proposed WearEver Sale Order (related document(s)654, 549 ) Filed by Global Home Products LLC. (Attachments: # 1 Proposed Form of Order (Clean)# 2 Proposed Form of Order (Blackline)) (Grohsgal, Bruce) (Entered: 08/11/2006) Objection to the Debtors proposed form of order attached to the Certification of Counsel (related document(s)654 ) Filed by Regal Ware, Inc. (Attachments: # 1 Exhibit A# 2 Exhibit B) (Kortanek, Steven) (Entered: 08/11/2006) Emergency Motion To Stay Pending Appeal Of Order Approving Motion Of The Debtors For An Order (i) Approving Sale By The Wearever Debtors Of Substantially All Of The Wearever Debtors' Operating Assets Free And Clear Of All Liens, Claims, Encumbrances And Other Interests Pursuant To Sections 363(B), (F) And (M) Of The Bankruptcy Code, (ii) Assuming And Assigning Certain Executory Contracts And Unexpired Leases, And (iii) Granting Related Relief, Filed by Regal Ware, Inc. Hearing scheduled for 8/14/2006 at 04:00 PM at US District Court, 844 King St., Courtroom #2B, Wilmington, Delaware. Objections due by 8/14/2006.. (Kortanek, Steven) (Entered: 08/12/2006) Objection to Emergency Motion of Regal Ware, Inc. for a Stay Pending Appeal of the Order Granting Motion of the Debtors for an Order: (i) Approving Sale By the WearEver Debtors of Substantially All of the WearEver Debtors' Operating Assets Free and Clear of All Liens, Claims, Encumbrances and Other Interests Pursuant to Sections 363(b), (b) and (m) of the Bankruptcy Code, (II) Assuming and Assigning Certain Executory Contracts and Unexpired Leases, and (III) Granting Related Relief (related document(s)660 ) Filed by Global Home Products LLC (Jones, Laura Davis) (Entered: 08/14/2006)

8/11/2006

654

8/11/2006

655

8/11/2006

656

8/12/2006

660

8/14/2006

663

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664

Order Approving Motion of Debtors for the Entry of an Order (I) Approving Sale by the Wearever Debtors of Substantially all of Wearever Debtors' Assets Free and Clear of all Liens, Claims, Enbumbrances and Other Interests, (II) Assuming and Assigning Certain Executory Contracts and Unexpired Leases, and (III) Granting Related Relief. (related document(s)633, 641, 604, 618, 631, 549 ) Order Signed on 8/11/2006. (Attachments: # 1 Exhibit A) (LCN, ) (Entered: 08/14/2006) Transcript of Hearing held on August 8, 2006 before the Honorable Kevin Gross (related document(s) [637,]) (SS, ) (Entered: 08/14/2006) Objection to OBJECTION OF PURCHASERS TO EMERGENCY MOTION OF REGAL WARE, INC. FOR STAY PENDING APPEAL OF ORDER APPROVING MOTION OF THE DEBTORS FOR AN ORDER (I) APPROVING SALE BY THE WEAREVER DEBTORS OF SUBSTANTIALLY ALL OF THE WEAREVER DEBTORS OPERATING ASSETS FREE AND CLEAR OF ALL LIENS, CLAIMS, ENCUMBRANCES AND OTHER INTERESTS PURSUANT TO SECTIONS 363(b), (f) AND (m) OF THE BANKRUPTCY CODE, (II) ASSUMING AND ASSIGNING CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED LEASES, AND (III) GRANTING RELATED RELIEF (related document(s)660 ) Filed by SEB S.A. and Groupe SEB USA (Ward, Matthew) (Entered: 08/14/2006) Objection to // Memorandum of Wachovia Bank, National Association in Opposition to, and Joinder of Wachovia Bank in the Debtors' Objection to, the Emergency Motion of Regal Ware, Inc. for Stay Pending Appeal of Order Approving Motion of the Debtors for an Order (I) Approving Sale by the Wearever Debtors of Substantially all of the Wearever Debtors Operating Assets Free and Clear of All Liens, Claims, Encumbrances and Other Interests Pursuant to Sections 363(b),(f) and (m) of the Bankruptcy Code, (II) Assuming and Assigning Certain Executory Contracts and Unexpired Leases; and (III) Granting Related Relief Filed by Wachovia Bank, National Assocation (Attachments: # 1 Certificate of Service) (Huston Jr., Joseph) (Entered: 08/14/2006) Joinder of the Official Committee of Unsecured Creditors to Objection of ther Debtors to Emergency Motion of Regal Ware Inc. for a Stay Pending Appeal of the Order Granting Motion of the Debtors for an Order: (I) Approving Sale by the Wearever Debtors of Substantially All of the Wearever Debtors' Operating Assets Free and Clear of all Liens, Claims, Encumbrances and Other Interests Pursuant to Sections 363(b), (f) and (m) of ther Bankruptcy Code, (II) Assuming and Assigning Certain Executory Contracts and Unexpired Leases; and (III) Granting Related Relief (related document(s)663, 660 ) Filed by Official Committee Of Unsecured Creditors. (Fournier, David) (Entered: 08/14/2006)

8/14/2006

665

8/14/2006

666

8/14/2006

668

8/14/2006

670

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8/14/2006

673

Notice of Appeal . Fee Amount $255. (related document(s)664 ) Filed by Regal Ware, Inc.. Appellant Designation due by 8/24/2006. (Scoliard, Jennifer) (Entered: 08/14/2006) Order Denying Emergency Motion To Stay Pending Appeal (Related Doc # 660) Order Signed on 8/14/2006. (JRH, ) (Entered: 08/15/2006) Transcript Of Hearing Before The Honorable Kevin Gross, Held on August 14, 2006. (related document(s)675, 669 ) (JWS, ) (Entered: 08/23/2006)

8/15/2006

676

8/23/2006

713

Date: September 6, 2006

Respectfully submitted, KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS LLP

By: Morton R. Branzburg, Esq. Steven K. Kortanek (Del. Bar No. 3106) 919 N. Market Street, Suite 1000 Wilmington, Delaware 19801 (302) 552-5503 ­ telephone (302) 426-9193 - facsimile -andRYAN KROMHOLZ & MANION, S.C. Daniel R. Johnson, Esq. Joseph A. Kromholz, Esq. P. O. Box 26618 Milwaukee, Wisconsin 53226-0618 Attorneys for Regal Ware, Inc.

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SERVICE LIST Counsel to Global Home Products: Laura Davis Jones, Esq. Bruce Grohsgal, Esq. Sandra G. M. Selzer, Esq. Pachulski Stang Ziehl Young Jones & Weintraub LLP 919 N. Market St., 17th Flr. Wilmington, DE 19899-8705 David M. Bertenthal, Esq. Joshua M. Fried, Esq. Pachulski Stang Ziehl Young Jones & Weintraub LLP 150 California St., 15th Flr. San Francisco, CA 94111 Counsel for SEB, SA: Gregg M. Galardi, Esq. Matthew Paul Ward, Esq. Skadden Arps Slate Meagher & Flom LLP One Rodney Square P.O. Box 636 Wilmington, DE 19899 Joseph H. Smolinsky, Esq. Thomas J. Hall, Esq. Chadbourne & Parke LLP 30 Rockefeller Plaza New York, NY 10112 United States Trustee Mark Kenney, Esq. Office of the U.S. Trustee J. Caleb Boggs Federal Building 844 N. King Street, Suite 2207 Lockbox 35 Wilmington, DE 19801 Counsel to the Official Committee of Unsecured Creditors: David M. Fournier, Esq. Pepper Hamilton LLP 1313 Market Street, Suite 5100 Wilmington, DE 19801 Sharon Levine, Esq. Bruce Buechler, Esq. Lowenstein Sandler PC 65 Livingston Avenue Roseland, NJ 07068-1791 9
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Counsel for Wachovia Bank, National Association: Joseph H. Huston, Jr., Esq. Thomas G. Whalen, Jr., Esq. Stevens & Lee, P.C. 1105 N. Market Street, 7th Flr. Wilmington, DE 19801 Steven B. Soll, Esq. Jonathan Helfat, Esq. Otterbourg, Steindler, Houston & Rosen, P.C. 230 Park Avenue New York, NY 10169 Counsel for Citigroup:

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