Case 2:19-bk-56885 Doc 383 Filed 12/10/19 Entered 12/10/19 15:36:48 Document Page 1 of 16 Desc Main This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio. IT IS SO ORDERED. Dated: December 10, 2019 IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION In re: MURRAY ENERGY HOLDINGS CO., et al., 1 Debtors. ) ) ) ) ) ) ) ) ) Chapter 11 Case No. 19-56885 (JEH) Judge John E. Hoffman, Jr. (Jointly Administered) ORDER (I) AUTHORIZING THE RETENTION AND COMPENSATION OF CERTAIN PROFESSIONALS UTILIZED IN THE ORDINARY COURSE OF BUSINESS, AND (II) GRANTING RELATED RELIEF [RELATED TO DOCKET NOS. 221, 222] 1 Due to the large number of Debtors in these chapter 11 cases, a complete list of the Debtors and the last four digits of their federal tax identification numbers is not provided herein. Such information may be obtained on the website of the Debtors’ claims and noticing agent at https://cases.primeclerk.com/MurrayEnergy. The location of Debtor Murray Energy Holdings Co.’s principal place of business and the Debtors’ service address in these chapter 11 cases is 46226 National Road, St. Clairsville, Ohio 43950. KE 65340982 Case 2:19-bk-56885 Doc 383 Filed 12/10/19 Entered 12/10/19 15:36:48 Document Page 2 of 16 Desc Main Upon the motion (the “Motion”) 2 of the above-captioned debtors and debtors in possession (collectively, the “Debtors”) for entry of an order (this “Order”), (a) authorizing the Debtors to retain and compensate the OCPs provided on the OCP Lists attached hereto as Exhibit 1 and Exhibit 2 (as may be amended or supplemented by the Debtors from time to time) pursuant to the OCP Procedures, and (b) granting related relief, all as more fully set forth in the Motion; and this Court having jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and General Order 30-2 from the United States Bankruptcy Court for the Southern District of Ohio, dated October 10, 2019; and this Court having found that this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2); and this Court may enter a final order consistent with Article III of the United States Constitution; and this Court having found that the relief requested in the Motion is in the best interests of the Debtors’ estates, their creditors, and other parties in interest; and this Court having found that the Debtors’ notice of the Motion and opportunity for a hearing on the Motion were appropriate and no other notice need be provided; and this Court having reviewed the Motion and having heard the statements in support of the relief requested therein at a hearing before this Court (the “Hearing”); and this Court having determined that the legal and factual bases set forth in the Motion and at the Hearing establish just cause for the relief granted herein; and upon all of the proceedings had before this Court; and after due deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED THAT: 1. The Motion is granted as set forth herein. 2. The Debtors are authorized to retain and compensate the OCPs identified on the OCP Lists attached hereto as Exhibit 1 and Exhibit 2 (as may be amended or supplemented by 2 Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Motion. 2 KE 65340982 Case 2:19-bk-56885 Doc 383 Filed 12/10/19 Entered 12/10/19 15:36:48 Document Page 3 of 16 Desc Main the Debtors from time to time in accordance with this Order), in the ordinary course of business, in accordance with the following compensation procedures (collectively, the “OCP Procedures”): (a) Declaration of Disinterestedness. Within 30 days of the date on which an OCP commences work for the Debtors, such OCP shall cause a declaration of disinterestedness, substantially in the form annexed as Exhibit 3 to the Order (each, a “Declaration of Disinterestedness”), to be filed with the Court and served upon: (i) Murray Energy Holdings Co., 46226 National Road, St. Clairsville, Ohio 43950, Attn: Michael McKown; (ii) proposed counsel to the Debtors, Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York 10022, Attn: Nicole L. Greenblatt, P.C. and Alexander J. Nicas; Kirkland & Ellis LLP 300 North LaSalle, Chicago, Illinois 60654, Attn: Ross M. Kwasteniet, P.C. and Joseph M. Graham; (iii) proposed co-counsel for the Debtors, Dinsmore & Shohl LLP, 255 East Fifth Street, Suite 1900, Cincinnati, Ohio 43202, Attn.: Kim Martin Lewis and Alexandra S. Horwitz; (iv) counsel to the Ad Hoc Group of Superpriority Lenders, Davis Polk & Wardwell, 450 Lexington Avenue, New York, NY 10017, Attn: Damian Schaible and Adam Shpeen; (v) the United States Trustee for the Southern District of Ohio, 550 Main Street, Suite 4-812, Cincinnati, Ohio 45202, Attn: Monica V. Kindt; (vi) proposed counsel to the UCC, Morrison & Foerster LLP, 250 West 55th Street, New York NY 10019, Attn: Lorenzo Marinuzzi, Jennifer Marines, Todd Goren, and Erica Richards; and (vii) to the extent not listed herein those parties requesting notice pursuant to Bankruptcy Rule 2002 (each a “Notice Party,” and, collectively the “Notice Parties”)). (b) Objection Procedures. The Notice Parties shall have until 12:00 p.m., prevailing Eastern Time, on the date that is 14 days after the date of filing of each OCP’s Declaration of Disinterestedness (the “Objection Deadline”) to object to the retention of such OCP. The objecting party shall file any such objection and serve such objection upon the Notice Parties and the respective OCP on or before the Objection Deadline. If any such objection cannot be resolved within 14 days of its receipt, the matter shall be scheduled for hearing before the Court at the next regularly scheduled omnibus hearing date that is no less than 14 days from that date or on a date otherwise agreeable to the parties. The Debtors shall not be authorized to retain and compensate such OCP until all outstanding objections have been withdrawn, resolved, or overruled by order of the Court. 3 KE 65340982 Case 2:19-bk-56885 Doc 383 Filed 12/10/19 Entered 12/10/19 15:36:48 Document Page 4 of 16 (c) No Objection. If no objection is received from any of the Notice Parties by the Objection Deadline with respect to any particular OCP, the Debtors shall be authorized to: (i) retain such OCP as of the date such OCP commenced providing services to the Debtors; and (ii) compensate such OCP as set forth herein. (d) OCP Caps. The Debtors shall be authorized to pay, without formal application to the Court by any OCP, 100% of fees and disbursements to each of the OCPs retained by the Debtors pursuant to the OCP Procedures upon submission to the Debtors of an appropriate invoice setting forth in reasonable detail the nature of the services rendered on or after the Petition Date; provided that while these chapter 11 cases are pending, the following limitations, exclusive of costs and disbursements, shall apply to the compensation: • for each Tier 1 OCP set forth on Exhibit 1 attached hereto (collectively, the “Tier 1 OCPs”) $200,000 per month on average over a rolling three month period (the “Tier 1 OCP Cap”); and • for each Tier 2 OCP set forth on Exhibit 2 attached hereto (collectively, the “Tier 2 OCPs”) $125,000 per month on average over a rolling three month period (the “Tier 2 OCP Cap,” and together with the Tier 1 OCP Cap, the “OCP Caps”). The OCP Caps may be increased by mutual agreement between the Debtors, the U.S. Trustee, and the Ad Hoc Group of Superpriority Lenders; provided that the Debtors shall file a notice with the Court and submit notice to the Notice Parties of any such agreed increase; provided, further, that any increase of the OCP Caps shall be subject to the requirements imposed under any orders regarding the use of cash collateral or access to postpetition debtor-in-possession financing approved by the Court in these chapter 11 cases (including with respect to any budgets governing or relating to such use). (e) Exceeding Caps. To the extent an OCP seeks compensation in excess of the OCP Caps (the “Excess Fees”), the OCP will file with the Court a Notice of Fees in Excess of the OCP Caps (the “Notice of Excess Fees”) and an invoice setting forth, in reasonable detail, the nature of the services rendered and disbursements actually incurred. Interested parties shall then have 14 days to file an objection to the Notice of Excess Fees with the Court. If after 14 days no objection is filed, the Excess Fees shall be deemed approved without the need for a hearing 4 KE 65340982 Desc Main Case 2:19-bk-56885 Doc 383 Filed 12/10/19 Entered 12/10/19 15:36:48 Document Page 5 of 16 Desc Main before the Court, and the OCP may be paid 100% of its fees and 100% of its expenses without the need to file a fee application. (f) OCP Statements. Beginning on the month ending January 31, 2020, and each fiscal quarter end thereafter during which these chapter 11 cases are pending, the Debtors shall within 30 days thereof file with the Court and serve on the Notice Parties a statement with respect to each OCP paid during the immediately preceding quarterly period (the “Quarterly Statement”). Each Quarterly Statement shall include: (i) the name of the OCP; (ii) the aggregate amounts paid as compensation for services rendered and reimbursement of expenses incurred by that OCP during the reported quarter; and (iii) a general description of the services rendered by that OCP. (g) Additional OCPs. The Debtors reserve the right to retain additional OCPs from time to time during these chapter 11 cases by: (i) including such OCPs on an amended version of the affected OCP List that is filed with the Court and served on the Notice Parties; and (ii) having such OCPs comply with the OCP Procedures. 3. The Debtors are authorized to supplement the OCP List as necessary to add or remove OCPs, from time to time in its sole discretion, without the need for any further hearing and without the need to file individual retention applications for newly added OCPs. In such event, the Debtors shall file the amended OCP List with this Court and serve such list on the Notice Parties. Each additional OCP listed in the OCP List shall file with this Court and serve a Declaration of Disinterestedness on the Notice Parties as provided in the OCP Procedures. If no objections are filed within 14 days of any such additional OCP’s Declaration of Disinterestedness, then retention of such OCPs shall be deemed approved by this Court pursuant to this Order without a hearing or further order. 4. Nothing contained herein shall affect the Debtors or any appropriate party in interest’s ability to dispute any invoice submitted by an OCP, and nothing contained herein shall preclude the Debtors from seeking authority to pay any OCP in an amount greater than the applicable OCP Cap, subject to the rights of any party in interest to oppose any such request. 5 KE 65340982 Case 2:19-bk-56885 5. Doc 383 Filed 12/10/19 Entered 12/10/19 15:36:48 Document Page 6 of 16 Desc Main This Order shall not apply to any professional retained by the Debtors pursuant to a separate order of the Court. 6. Notwithstanding the relief granted in this Order, any payment made or to be made by the Debtors pursuant to the authority granted herein shall be subject to and in compliance with any interim or final orders entered by the Court approving the Debtors’ entry into any postpetition debtor in possession financing facility and any budget or cash flow forecasts in connection therewith and/or authorizing the Debtors’ use of cash collateral and any budget or cash flow forecasts in connection therewith (in either case, the “DIP Order”). To the extent there is any inconsistency between the terms of the DIP Order and any action taken or proposed to be taken hereunder, the terms of the DIP Order shall control. For the avoidance of doubt, the Debtors are not authorized to make any payments pursuant to this Order to, or on behalf of, a non-debtor affiliate except as permitted by the Approved Cash Flow Forecasts (as defined in the DIP Order). 7. Notice of the Motion as provided therein shall be deemed good and sufficient notice of such Motion and the requirements of the Local Rules are satisfied by such notice. 8. The Debtors shall serve this Order in accordance with all applicable rules and shall file a certificate of service evidencing compliance with this requirement. 9. The Debtors are authorized to take all reasonable actions necessary to effectuate the relief granted in this Order in accordance with the Motion. 10. This Court retains exclusive jurisdiction with respect to all matters arising from or related to the implementation, interpretation, and enforcement of this Order. SO ORDERED. Copies to Default List 6 KE 65340982 Case 2:19-bk-56885 Doc 383 Filed 12/10/19 Entered 12/10/19 15:36:48 Document Page 7 of 16 Exhibit 1 Tier 1 Ordinary Course Professionals KE 65340982 Desc Main Case 2:19-bk-56885 Doc 383 Filed 12/10/19 Entered 12/10/19 15:36:48 Document Page 8 of 16 Desc Main Ordinary Course Professionals OCP Name Address Service Ernst & Young LLP 950 Main Avenue, Suite 1800 Cleveland, OH 44113-7214 Tax and Accounting - Audit Ogletree, Deakins, Nash, Smoak & Stewart, P.C. One PPG Place, Suite 1900 Pittsburgh, PA 15222 Legal - Union Matters KE 65340982 Case 2:19-bk-56885 Doc 383 Filed 12/10/19 Entered 12/10/19 15:36:48 Document Page 9 of 16 Exhibit 2 Tier 2 Ordinary Course Professionals KE 65340982 Desc Main Case 2:19-bk-56885 Doc 383 Filed 12/10/19 Entered 12/10/19 15:36:48 Document Page 10 of 16 Desc Main Ordinary Course Professionals OCP Name Address Service Babst Calland Two Gateway Center 603 Stanwix Street Pittsburgh, PA 15022 Legal - Environmental Matters in West Virginia and Pennsylvania Bailey & Glasser LLP 209 Capitol Street Charleston, WV 25301 Legal - Environmental Matters in Illinois Benesch, Friedlander, Coplan & Aronoff LLP 200 Public Square Suite 2300 Cleveland, OH 44114 Legal - Environmental and Litigation Matters in West Virginia and Ohio Bingham Greenebaum Doll LLP 3913 Solutions Center Chicago, IL 60677-3009 Legal - MSHA and Litigation Matters in Kentucky Black, Ballard & McDonald P.C. 108 South 9th Street Mount Vernon, IL 62864 Legal - Real Estate Matters Bowles Rice LLP University Town Centre 125 Granville Square Suite 400 Morgantown, WV 26501 Legal - Real Estate and Litigation Matters Ciuni & Panichi, Inc. 25201 Chagrin Boulevard Suite 200 Cleveland, OH 44122-5683 Tax and Accounting - Tax Consultant Cohen & Grigsby, PC 625 Liberty Avenue Pittsburgh, PA 15222-3152 Legal - CERCLA Matters Covington & Burling LLP 620 Eighth Avenue New York, NY 10018-1405 Legal - Colombian Matters Crowe & Dunlevy 321 South Boston Avenue Tulsa, OK 74013 Legal - Oklahoma Matters Deloitte Management Services LP 2800 - 1055 Dunsmuir Street 4 Bentall Centre Vancouver, BC V7X 1P4 Canada Tax and Accounting Dickie McCamey & Chilcote, P.C. Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 Legal - Litigation Matters in Pennsylvania KE 65340982 Case 2:19-bk-56885 Doc 383 Filed 12/10/19 Entered 12/10/19 15:36:48 Document Page 11 of 16 OCP Name Address Desc Main Service Fabian Vancott 215 South State Street Suite 1200 Salt Lake City, UT 84111 Legal - MSHA Matters in Utah Flaherty Sensabaugh Bonasso PLLC 200 Capitol Street Charleston, WV 25301 Legal - Litigation Matters Frost Brown Todd, LLC Great American Tower 301 East Fourth Street Suite 3300 Cincinnati, OH 45202 Legal - Environmental Matters in Ohio Gaydos & Turner PLLC 17548 Veterans Memorial Highway, Suite A Kingwood, WV 26537 Legal - Real Property Matters in West Virginia Gordon Goetz Johnson Caldwell, PSC 121 West 2nd Street Owensboro, KY 42303 Legal - Real Estate and Litigation Matters in Kentucky Hardy Pence PLLC 10 Hale Street, 4th Floor Charleston, WV 25301 Legal - MSHA Matters Hissam Forman Donovan Ritchie PLLC 707 Virginia Street East Suite 260 Charleston, WV 25301 Legal - Litigation Matters in West Virginia Long Reimer Winegar LLP 2120 Carey Avenue, Suite 300 Cheyenne, WY 82001 Legal - Wyoming Matters Lucha LLC 247 Gentle Breeze Drive Chapmanville, WV 25508 Labor Matters Consultant Mercer Six PPG Place, Suite 400 Pittsburgh, PA 15222 Human Resources Consultant Morgan, Lewis & Bockius 111 Pennsylvania Avenue NW Washington, DC 20004 Legal - ERISA and Labor Matters Polsinelli PC 900 W. 48th Place, Suite 900 Kansas City, MO 64112 Legal - Environmental Matters in Illinois Porterwright Morris & Arthur LLP 41 South High Street Suites 2800 - 3200 Columbus, OH 43215-6194 Legal - Real estate, Environmental, and Litigation Matters in West Virginia and Ohio 3 KE 65340982 Case 2:19-bk-56885 Doc 383 Filed 12/10/19 Entered 12/10/19 15:36:48 Document Page 12 of 16 OCP Name Address Desc Main Service PricewaterhouseCoopers LLP 300 Madison Avenue New York, NY 10017 Tax and Accounting Proskauer Rose LLP Eleven Times Square New York, NY 10036 Legal - General Corporate Matters Reed Smith LLP Reed Smith Centre 225 Fifth Avenue Pittsburgh, PA 15222-2716 Legal - Litigation and FCPA Matters in Colombia Rock Creek Advisors, LLC 555 Fifth Avenue New York, NY 10017 Pension and OPEB Consultant Sandberg Phoenix & von Gontard P.C. 600 Washington Avenue St. Louis, MO 63101 Legal - Maritime Law Matters Schulte Roth & Zabel LLP 919 Third Avenue New York, NY 10022 Legal - General Corporate Matters Snell & Wilmer LLP 400 East Van Buren Street Suite 1900 Phoenix, AZ 85004-9955 Legal - Federal Leasing, Litigation, Environmental, and Real Estate Matters in Utah Spilman Thomas & Battle PLLC 300 Kanawha Boulevard East Charleston, WV 25301 Legal - MSHA Matters in Kentucky Steptoe & Johnson PLLC Chase Tower, 17th Floor 707 Virginia Street East Charleston, WV 25301 Legal - Real Property Matters in West Virginia The Brennan Group 12221 Big Bend Road St. Louis, MO 63122 Tax and Accounting - Sales and Use Tax Audits Wyatt, Tarrant & Combs, LLP 500 West Jefferson Street Suite 2800 Louisville, KY 40202-2898 Legal - Kentucky Matters 4 KE 65340982 Case 2:19-bk-56885 Doc 383 Filed 12/10/19 Entered 12/10/19 15:36:48 Document Page 13 of 16 Exhibit 3 Form of Declaration of Disinterestedness KE 65340982 Desc Main Case 2:19-bk-56885 Doc 383 Filed 12/10/19 Entered 12/10/19 15:36:48 Document Page 14 of 16 Desc Main IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION In re: MURRAY ENERGY HOLDINGS CO., et al., 1 Debtors. ) ) ) ) ) ) ) ) ) Chapter 11 Case No. 19-56885 (JEH) Judge John E. Hoffman, Jr. (Jointly Administered) DECLARATION OF DISINTERESTEDNESS OF [FIRM] PURSUANT TO THE ORDER AUTHORIZING THE RETENTION AND COMPENSATION OF CERTAIN PROFESSIONALS UTILIZED IN THE ORDINARY COURSE OF BUSINESS I, _________, declare under penalty of perjury: 1. I am a [Position] of [Firm], located at [Street, City, State, Zip Code] (the “Firm”). 2. Murray Energy Holdings Co. and certain of its affiliates, as debtors and debtors in possession (collectively, the “Debtors”), have requested that the Firm provide [specific description] services to the Debtors, namely [specific Debtor(s) for which services are being provided], and the Firm has consented to provide such services. 3. The Firm may have performed services in the past, may currently perform services and may perform services in the future, in matters unrelated to these chapter 11 cases, for persons that are parties in interest in the Debtors’ chapter 11 cases. The Firm does not perform services for any such person in connection with these chapter 11 cases, or have any relationship with any 1 Due to the large number of Debtors in these chapter 11 cases, a complete list of the Debtors and the last four digits of their federal tax identification numbers is not provided herein. Such information may be obtained on the website of the Debtors’ claims and noticing agent at https://cases.primeclerk.com/MurrayEnergy. The location of Debtor Murray Energy Holdings Co.’s principal place of business and the Debtors’ service address in these chapter 11 cases is 46226 National Road, St. Clairsville, Ohio 43950. KE 65340982 Case 2:19-bk-56885 Doc 383 Filed 12/10/19 Entered 12/10/19 15:36:48 Document Page 15 of 16 Desc Main such person, their attorneys, or accountants that would be adverse to the Debtors or their estates with respect to the matter on which the Firm is proposed to be employed. 4. As part of its customary practice, the Firm is retained in cases, proceedings, and transactions involving many different parties, some of whom may represent or be employed by the Debtors, claimants, and parties in interest in these chapter 11 cases. 5. Neither I nor any principal, partner, director, or officer of, or professional employed by, the Firm, has agreed to share or will share any portion of the compensation to be received from the Debtors with any other person other than the principal and regular employees of the Firm. 6. Neither I nor any principal, partner, director, or officer of, or professional employed by, the Firm, insofar as I have been able to ascertain, holds, or represents any interest adverse to the Debtors or their estates with respect to the matters upon which this Firm is to be employed. 7. The Debtors owe the Firm $_________ for prepetition services, the payment of which is subject to limitations contained in the United States Bankruptcy Code, 11 U.S.C. §§ 101– 1532, and subject to the terms of the Order approving the ordinary course professionals. Unless authorized by order of the Court, the Firm understands that its prepetition billings will not be paid as part of the Firm’s continued service during these chapter 11 cases. 8. As of October 29, 2019, which was the date on which the Debtors commenced these chapter 11 cases, the Firm [was/was not] party to an agreement for indemnification with certain of the Debtors. [A copy of such agreement is attached as Exhibit 1 to this declaration.] 9. The Firm is conducting further inquiries regarding its retention by any creditors of the Debtors, and upon conclusion of that inquiry, or at any time during the period of its employment, if the Firm should discover any facts bearing on the matters described herein, the Firm will supplement the information contained in this declaration. 7 KE 65340982 Case 2:19-bk-56885 Doc 383 Filed 12/10/19 Entered 12/10/19 15:36:48 Document Page 16 of 16 Desc Main Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Date: ___________, 2019 [DECLARANT] 8 KE 65340982