Case Document 1898 Filed in TXSB on 05/22/13 Page 1 of 8

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1 Case Document 1898 Filed in TXSB on 05/22/13 Page 1 of 8 IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION IN RE: Case No ATP OIL & GAS CORPORATION, INC., Chapter 11 DEBTOR. Judge Marvin Isgur SUPPLEMENTAL OBJECTION TO NATIONAL OILWELL VARCO, L.P. s JOINDER IN SUPPLEMENTAL OBJECTIONS TO DEBTOR S DEEPWATER SALE MOTION [Relates to Docket Nos. 1252, 1386, 1411, 1727, 1739, and 1816] TO THE HONORABLE U.S. BANKRUPTCY JUDGE: National Oilwell Varco, L.P., d/b/a NOV Portable Power, NOV Tuboscope, and NOV Wilson, (collectively, NOV ) hereby files this Supplemental Objection (the Supplemental Objection ) to its Joinder [Dkt. No. 1739] to the Supplemental Objections and Reservations of Rights (collectively, the Objections ) [Dkt. Nos. 1386, 1411, and 1727] of other statutory lien holders with respect to Debtor s Emergency Motion for Entry of an Order Pursuant to Bankruptcy Code Sections 105, 361, 363, and 365, and Bankruptcy Rules 2002, 6004, and 6006 for Orders (I) (A) Approving (i) Bidding Procedures; (ii) Bid Protections; (iii) Auction Procedures; and (iv) Assumption and Assignment Procedures; (B) Approving Notice Procedures for (i) the Solicitation of Bids; and (ii) an Auction; (C) Scheduling Hearings on Approval of a Sale or Sales of Substantially All of Debtor s Deepwater Property Assets; and (D) Granting Related Relief; and (II) (A) Approving the Sale or Sales of Substantially All of the Debtor s Deepwater Property Assets Free and Clear of Claims and Liens and (B) Approving the Assumption and Assignment of Contracts and Leases, [Dkt. No. 1252] (the Deepwater Sale Motion ), and in support thereof, respectfully states the following: 1

2 Case Document 1898 Filed in TXSB on 05/22/13 Page 2 of 8 RELEVANT BACKGROUND 1. NOV, prior to and after filing of Debtor s bankruptcy case, provided essential oilfield services and equipment to Debtor in support of Debtor s development, exploration, maintenance, and operations on OSC-G Lease No , located in the Mississippi Canyon Block, Gulf of Mexico Federal Waters (the Mineral Property ). 2. In accordance with applicable law, including relevant state and bankruptcy law, NOV timely perfected its lien and privilege on the Mineral Property by filing its Affidavit and Statement of Privilege in Support of Lien on Mineral Property with the applicable Parish, by sending its Notice of Statement of Privilege in Support of Lien on Mineral Property to the Debtor, and by filing its Notice of Perfection of Section 546 Interests with this Court. 3. On October 17, 2013, NOV filed its Proof of Claim, asserting its claim and lien on the Mineral Property in the amount of $210,729.70, plus applicable attorney fees and costs. In support of its Proof of Claim, NOV attached its Affidavit and Statement of Privilege in Support of Lien on Mineral Property and its Notice of Perfection of Section 546 Interests. See NOV s Proof of Claim and accompanying attachment, attached hereto and incorporated herein as Exhibit A. 4. On January 23, 2013, in accordance with this Court s Order Approving Lien Identification Process (the Lien Identification Process Order ), NOV sent to the Debtor s Claims Processing Agent, Kurtzman Carson Consultants, L.L.C. ( KCC ), by U.S. Certified Mail, return receipt requested, its Lien Identification Statement. KCC received NOV s Lien Identification Statement on January 28, See NOV s U.S. Certified Mail receipt and Return Receipt, attached hereto and incorporated herein as Exhibit B. 5. On January 22, 2013, Debtor filed its Deepwater Sale Motion [Dkt. No. 1252], seeking the Court s approval to, among other things, sell its Deepwater Assets free and clear of 2

3 Case Document 1898 Filed in TXSB on 05/22/13 Page 3 of 8 all valid and enforceable liens. Included in these Deepwater Assets is the Mineral Property on which NOV had a valid and enforceable lien interest. 6. On May 7, 2013, Debtor filed its Notice of Designation of Successful Bid [Dkt. No. 1816], providing notice to the Court, creditors, and other interested parties that the Debtor, pursuant to the terms set forth in its Deepwater Sale Motion and the Court s Deepwater Sale Procedures Order, had designated the credit bid submitted by Credit Suisse, as administrative agent and collateral agent to the DIP Lenders (the DIP Agent ), as the Successful Bid on certain oil and gas assets, the Mineral Property being included among those assets. 7. As set forth in the Asset Purchase Agreement (the APA ) provided by the DIP Agent in conjunction with the Debtor s Notice of Designation of Successful Bid, the Purchase Price (as defined in Section 3.01) for the Assets (as defined in Section 2.02) is comprised of the following: (i) $45 million in cash (the Closing Cash Payment ) to satisfy legitimate Liens on Assets that are ranked senior to the DIP Claims ; and (ii) a Credit Bid of a portion of the value of the DIP Claims equal to the difference between the Adjusted Purchase Price and the $45 million Closing Cash Payment. 8. Section 3.01 of the APA further provides that the Closing Cash Payment shall be held in escrow by Seller and distributed as follows: (i) to each holder of a Lien asserting priority to the DIP Claims upon agreement by the Buyer or upon final and non-appealable order determining that such Lien is ranked senior to the DIP Claims; and (ii) to Buyer to the extent that the Closing Cash Payment exceeds the aggregate amount of Liens determined to be senior to the DIP Claims. The APA is silent as to what happens if the $45 million is not enough to satisfy Liens ranked senior to the DIP Claims. 3

4 Case Document 1898 Filed in TXSB on 05/22/13 Page 4 of 8 9. On May 7, 2013, also in conjunction with the Debtor s Notice of Designation of Successful Bid, the DIP Agent made available certain exhibits which, from the arguments and comments of the DIP Agent s counsel made at the Court s May 9 th hearing, apparently make up the documents the DIP Agent relied upon in arriving at its conclusion that $45 million would be sufficient to satisfy legitimate Liens on Assets that are ranked senior to the DIP Claims. Despite NOV complying with the every applicable law in perfecting its lien on the Mineral Property, as well as complying with the Court s Lien Identification Process Order, Debtor and DIP Agent listed on these exhibits only that NOV had asserted a lien on the Mineral Property, and instead of listing the correct amount and relation-back date of NOV s claimed lien, listed that information as not available. SUPPLEMENTAL OBJECTION 10. NOV has a valid, perfected, enforceable, and senior lien on the Mineral Property. By its omission of NOV s lien in its computation of the $45 million Closing Cash Payment as contemplated in the APA, and its disregard of NOV s lien in the documents relied on in such computation, the DIP Agent has ignored this fact and NOV s real property rights in the Mineral Property are in danger of being prejudiced if the Deepwater Sale Motion, as it currently contemplated, is granted. 11. Through their allocation in the APA of $45 million to satisfy legitimate Liens on Assets that are ranked senior to the DIP Claims, Debtor and DIP Agent are essentially making their own judicial determination on the validity and seniority of the various liens filed against the property encompassed under the APA. 12. NOV has complied with every single requirement, both as required by applicable state and bankruptcy law as well as required by this Court, in asserting and protecting its right to 4

5 Case Document 1898 Filed in TXSB on 05/22/13 Page 5 of 8 a lien on the Mineral Property. Nevertheless, Debtor and DIP Agent have failed to acknowledge NOV s lien rights and have not budgeted for such in the Deepwater Sale Motion and APA. 13. Through their comments at the May 9, 2013 Deepwater Sale Motion hearing, it appears that Debtor and DIP Agent arrived at the $45 million budget by via a review of the various Lien Identification Statements filed with KCC. Although, NOV filed a Lien Identification Statement with KCC in accordance with the Lien Identification Order, the DIP Agent s exhibit nevertheless shows that information regarding NOV s valid and enforceable lien is not available. Debtor and DIP Agent s apparent disregard for NOV s real property rights in the Mineral Property is unacceptable. 14. Further, even if KCC never received NOV s Lien Identification Statement, Debtor s real property interest in the Mineral Property cannot be prejudiced because NOV is in compliance with the Lien Identification Order and Debtor and DIP Agent possess all information concerning NOV s claimed lien on the Mineral Property that would otherwise be found in the Lien Identification Statement. 15. The Lien Identification Order Provides that: Each Lien Claimant must completed the [Lien Identification Statement] by February 15, 2013; provided, that Lien Claimants who have already submitted information regarding their Liens to KCC or though filing with the Court on or before [January 15, 2013] shall be permitted to rely on such submissions to satisfy the informational requirements set out in the [Lien Identification Statement]. 16. NOV filed its Proof of Claim with this Court on October 17, 2013 months prior to the Lien Identification Order s January 15, 2013 deadline. Attached to the Proof of Claim was NOV s Statement of Perfection of 546 Interests and Affidavit in Support of Lien on Mineral Property. These documents, separately and when taken together, contain more than enough information regarding NOV s claimed lien on the Mineral Property to satisfy the informational 5

6 Case Document 1898 Filed in TXSB on 05/22/13 Page 6 of 8 requirements set out in the [Lien Identification Statement]. Therefore, NOV was exempt from filing a Lien Identification Statement and could rely on the information provided in its Proof of Claim and accompanying attachments. 17. Based on the foregoing, NOV respectfully requests the Court to require that prior to granting of the Deepwater Sale Motion and execution of the APA, Debtor and DIP Agent s budget of $45 million allocated to satisfying liens on property encompassed by the APA be expanded so as to account for NOV s lien on the Mineral Property. RESERVATION OF RIGHTS 18. NOV reserves the right to amend, supplement, or modify this Supplemental Objection as appropriate based on arguments and/or evidence presented in any papers filed by any party in support of or in opposition to the Deepwater Sale Motion. NOV further reserves the right to adopt or join in any objections filed or arguments made by any other party in interest. CONCLUSION AND PRAYER Accordingly, NOV respectfully asks this Court to deny and/or modify the Deepwater Sale Motion consistent with this Supplemental Objection and the arguments and authorities set forth herein and in the Objections, and to enter an order grating such other and further relief to which NOV may show itself to be justly or equitably entitled. [Remainder of the Page Intentionally Left Blank] 6

7 Case Document 1898 Filed in TXSB on 05/22/13 Page 7 of 8 Dated: May, 2013 Respectfully Submitted, CHRIS A. STACY & ASSOCIATES, P.C. By:/s/Chris A. Stacy/s/ Chris A. Stacy State Bar No chris.stacy@cstacylaw.com Brian A. Baker State Bar No brian.baker@cstacylaw.com 1010 Lamar Street, Suite 1005 Houston, Texas Ph: Fx: ATTORNEYS FOR NATIONAL OILWELL VARCO, L.P., D/B/A NOV PORTABLE POWER, NOV TUBOSCOPE, AND NOV WILSON 7

8 Case Document 1898 Filed in TXSB on 05/22/13 Page 8 of 8 CERTIFICATE OF SERVICE A copy of the foregoing has been served on all parties registered via the Court s ECF electronic filing system on this the 22 nd day of May 2013, as well as on the following parties by electronic mail: Charles S. Kelley, ckelley@mayerbrown.com; and Paul H. Zumbro, pzumbro@cravath.com /s/chris A. Stacy/s/ Chris A. Stacy 8

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