smb Doc 258 Filed 05/12/16 Entered 05/12/16 07:51:25 Main Document Pg 1 of 8 : : : : : : : : Chapter 11

Transcription

1 Pg 1 of 8 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re SUNEDISON, INC., et al., Debtors. 1 Chapter 11 Case No (SMB) Jointly Administered ORDER GRANTING DEBTORS MOTION FOR ORDER PURSUANT TO BANKRUPTCY CODE SECTIONS 105(a) AND 331, BANKRUPTCY RULE 2016, AND LOCAL BANKRUPTCY RULE ESTABLISHING PROCEDURES FOR INTERIM COMPENSATION AND REIMBURSEMENT OF EXPENSES OF PROFESSIONALS Upon the motion (the Motion ) 2 of the Debtors for an order pursuant to sections 105(a) and 331 of title 11 of the United States Code (the Bankruptcy Code ), Rule 2016 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), and Rule of the Local Bankruptcy Rules for the United States Bankruptcy Court for the Southern District of New York (the Local Bankruptcy Rules ), establishing procedures for interim compensation and reimbursement of expenses of the professionals retained by order of this Court in these Chapter 11 Cases; and upon the First Day Declaration; and due and sufficient notice of the Motion having been given under the particular circumstances; and it appearing that no other or further notice 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s tax identification number are as follows SunEdison, Inc. (5767); SunEdison DG, LLC (N/A); SUNE Wind Holdings, Inc. (2144); SUNE Hawaii Solar Holdings, LLC (0994); First Wind Solar Portfolio, LLC (5014); First Wind California Holdings, LLC (7697); SunEdison Holdings Corporation (8669); SunEdison Utility Holdings, Inc. (6443); SunEdison International, Inc. (4551); SUNE ML 1, LLC (3132); MEMC Pasadena, Inc. (5238); Solaicx (1969); SunEdison Contracting, LLC (3819); NVT, LLC (5370); NVT Licenses, LLC (5445); Team-Solar, Inc. (7782); SunEdison Canada, LLC (6287); Enflex Corporation (5515); Fotowatio Renewable Ventures, Inc. (1788); Silver Ridge Power Holdings, LLC (5886); SunEdison International, LLC (1567); Sun Edison LLC (1450); SunEdison Products Singapore Pte. Ltd. (7373); SunEdison Residential Services, LLC (5787); PVT Solar, Inc. (3308); SEV Merger Sub Inc. (N/A). The address of the Debtors corporate headquarters is Riverport Dr., Maryland Heights, Missouri Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Motion.

2 Pg 2 of 8 need be provided; and it appearing that the relief requested by the Motion is in the best interests of the Debtors, their estates, their creditors, their stakeholders, and other parties in interest; and after due deliberation thereon, and sufficient cause appearing therefor, it is hereby ORDERED, ADJUDGED AND DECREED that 1. The Motion is GRANTED solely to the extent set forth herein. 2. Except as may otherwise be provided in orders of this Court authorizing the retention of specific Professionals, all Professionals in these Chapter 11 Cases may seek interim compensation in accordance with the following procedures (a) On or before the thirtieth (30th) day of each month following the month for which compensation is sought, each Professional may serve a monthly statement (the Monthly Statement ) by (a) hand or overnight delivery upon (i) counsel to the Debtors, Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036, Attn Jay M. Goffman and J. Eric Ivester; (ii) counsel to the Tranche B Lenders (as defined in the debtor-in-possession credit agreement) and the steering committee of the second lien creditors, Akin Gump Strauss Hauer & Feld LLP, One Bryant Park, New York, NY 10036, Attn Arik Preis and Kristine Manoukian; (iii) counsel to the DIP Agent and the DIP Arrangers (each as defined in the Interim DIP Order (as defined below)), White & Case LLP, 1155 Avenue of the Americas, New York, NY 10036, Attn Scott Greissman and Elizabeth Feld; (iv) the office of the United States Trustee, U.S. Federal Office Building, 201 Varick Street, Suite 1006, New York, NY 10014, Attn Paul Schwartzberg, Esq. (paul.schwartzberg@usdoj.gov); and (v) counsel to the Committee, Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, NY 10153, Attn Matthew S. Barr and Ronit Berkovich; and (b) to the Debtors via electronic mail to their counsel, at james.mazza@skadden.com and louis.chiappetta@skadden.com (collectively, the Notice Parties ). (b) On or before the thirtieth (30th) day of each month following the month for which compensation is sought, 3 each Professional shall file a Monthly Statement with the Court; however, a courtesy copy need not be delivered to the presiding judge s chambers. The proposed interim compensation order is not intended to alter the fee application requirements outlined in Bankruptcy Code sections 330 and 331, and the Professionals are still required to serve and file interim and final applications for approval of fees and expenses in accordance with the relevant provisions of the Bankruptcy Code, the Bankruptcy Rules and the Local Bankruptcy Rules. 3 If a Professional does not file a Monthly Statement within this time period, the Monthly Statement may be filed for consideration and payment during the following month. 2

3 Pg 3 of 8 (c) Each Monthly Statement must contain a list of the individuals and their respective titles (e.g., attorney, accountant, or legal assistant) who provided services during the statement period, their respective billing rates, the aggregate hours spent by each individual, a reasonably detailed breakdown of the disbursements incurred, and contemporaneously maintained time entries for each individual in increments of tenths (1/10) of an hour, unless otherwise ordered by the Court. No Professional should seek reimbursement of an expense that would otherwise not be allowed pursuant to Local Bankruptcy Rule or the United States Trustee Guidelines for Reviewing Applications for Compensation and Reimbursement of Expenses Filed under 11 U.S.C. 330, dated January 30, (d) Each party in interest shall have fifteen (15) days after the filing of a particular Monthly Statement to review it and, if such party has an objection to the compensation and reimbursement sought in a particular Monthly Statement (an Objection ), such party shall, by no later than fifteen (15) days following the filing of the particular Monthly Statement (the Objection Deadline ), serve upon the retained Professional whose Monthly Statement is the subject of an Objection, and the other persons designated to receive statements in paragraph (a), above, a written Notice of Objection to Fee Statement, setting forth the nature of the Objection and the amount of fees or expenses at issue. (e) At the expiration of the Objection Deadline, the Debtors shall promptly pay eighty percent (80%) of the fees and one hundred percent (100%) of the expenses identified in each Monthly Statement to which no Objection has been served in accordance with paragraph (d). 4 (f) If a Notice of Objection to Fee Statement is filed, the Debtors shall withhold payment of that portion of the Monthly Statement to which the Objection is directed and promptly pay the remainder of the fees and disbursements in the percentages set forth in paragraph (e) unless the Professional whose statement is objected to seeks an order from the Court, upon notice and a hearing, directing payment to be made. (g) Similarly, if the parties to an Objection are able to resolve their dispute following the service of a Notice of Objection to Fee Statement, and if the party whose Monthly Statement was objected to serves upon all of the Notice Parties a statement indicating that the Objection is withdrawn and describing in detail the terms of the resolution, then the Debtors shall promptly pay, in accordance with paragraph (e), that portion of the Monthly Statement which is no longer subject to an Objection. (h) All Objections that are not resolved by the parties shall be preserved and presented to this Court at the next interim or final fee application hearing to be heard by this Court (see paragraph (j), below). 4 The remaining twenty percent (20%) of the Professional s fees for each Monthly Statement shall be withheld from payment until further order of the Court. 3

4 Pg 4 of 8 (i) The service of an Objection in accordance with paragraph (d) shall not prejudice the objecting party s right to object to any fee application made to the Court in accordance with the Bankruptcy Code on any ground, whether raised in the Objection or not. Furthermore, the decision by any party not to object to a Monthly Statement shall not be a waiver of any kind or prejudice that party s right to object to any fee application subsequently made to the Court in accordance with the Bankruptcy Code. (j) Unless the Court orders otherwise, each of the Professionals shall file with the Court and serve on the Notice Parties an application for interim or final Court approval and allowance, pursuant to Bankruptcy Code sections 330 and 331 (as the case may be), of the compensation and reimbursement of expenses requested. Commencing with the period ending August 31, 2016, and at four-month intervals thereafter, each of the Professionals shall file with the Court such an application, on or before the forty-fifth (45th) day following the last day of the compensation period for which compensation is sought. The fee application for interim Court approval and allowance for the four-month interval ending August 31, 2016 is due on October 17, (k) The Debtors counsel shall obtain a date from the Court for the hearing to consider interim fee applications for all retained Professionals (the Interim Fee Hearing ). At least twenty-one (21) days prior to the Interim Fee Hearing, the Debtors counsel shall file a notice with the Court, with service upon the United States Trustee, the Notice Parties and all retained Professionals, setting forth the time, date, and location of the Interim Fee Hearing, the period covered by the interim fee applications, and the objection deadline. (l) Any Professional who fails to file when due an application seeking approval of compensation and expenses previously paid under these procedures (i) shall be ineligible to receive further monthly payments of fees or expenses as provided herein until further order of the Court and (ii) may be required to disgorge any fees paid since such Professional s retention or such Professional s most recent fee application, whichever is later. (m) The pendency of an application or an order that payment of compensation or reimbursement of expenses was improper as to a particular Monthly Statement shall not disqualify a Professional from the future payment of compensation or reimbursement of expenses as set forth above, unless otherwise ordered by this Court. (n) Neither the payment of, nor the failure to pay, in whole or in part, monthly compensation and reimbursement as provided herein shall have any effect on this Court s interim or final allowance of compensation and reimbursement of expenses of any of the Professionals. (o) Counsel to any official committee appointed in these Chapter 11 Cases may, in accordance with the foregoing procedures for monthly compensation and reimbursement of Professionals, collect and submit statements of expenses, with supporting vouchers, from members of the committee he or she represents; provided, however, that such committee counsel ensures that these reimbursement requests comply 4

5 Pg 5 of 8 with the Guidelines for Fees and Disbursements for Professionals in Southern District of New York Bankruptcy Cases. 3. Each Professional whose retention has been approved by the Court may, with respect to compensation for work performed and reimbursement for expenses incurred during the period beginning on April 21, 2016 and ending on April 30, 2016, either (a) serve a first Monthly Statement covering such period any time after the entry of this order and before or on May 30, 2016 or (b) serve a first Monthly Statement covering such period and the period beginning May 1, 2016 and ending May 31, 2016, in which case such first Monthly Statement shall be served on or before June 30, All Professionals not retained as of the date of this order shall file their first Monthly Statement for the period from the effective date of their retention through the end of the first full month following the effective date of their retention and otherwise in accordance with the procedures set forth in this order. 4. The amount of fees and disbursements sought shall be set out in U.S. dollars. If the fees and disbursements are to be paid in foreign currency, the amount shall be set out in U.S. dollars and the conversion amount in the foreign currency, calculated at the time of the submission. 5. The Debtors shall include all payments to Professionals on their monthly operating reports, detailed so as to state the amount paid to each Professional. 6. Any party in interest may object to requests for monthly payment made under this order on the grounds, among other things, that the Debtors have not timely filed monthly operating reports or remained current with their administrative expenses and 28 U.S.C fees, or that manifest exigency exists, by seeking further order of this Court. Otherwise this order shall continue and shall remain in effect during the pendency of these Chapter 11 Cases. 5

6 Pg 6 of 8 7. Service of interim fee applications and the final fee application (collectively, the Applications ) shall be limited to the Notice Parties. All other parties that have filed a notice of appearance with the Clerk of the Court and requested notice of pleadings in these Chapter 11 Cases shall be entitled to receive only notice of hearings on the Applications, with a right to receive copies of the Applications upon request. 8. Any and all further notice of the relief requested in the Motion shall be, and hereby is, dispensed with and waived; provided, however, that the Debtors must serve a copy of this order on the Notice Parties. 9. Notwithstanding anything to the contrary contained herein, any payment to be made, or authorization contained, hereunder shall be subject to any applicable requirements imposed on the Debtors under the Interim Order (I) Authorizing Debtors to (A) Obtain Senior Secured Superpriority Postpetition Financing Pursuant to Bankruptcy Code Sections 105, 361, 362, 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(1), and 364(e), and (B) Utilize Cash Collateral Pursuant to Bankruptcy Code Section 363, (II) Granting Adequate Protection to Prepetition Secured Parties Pursuant to Bankruptcy Code Sections 361, 362, 363, and 364, and (III) Scheduling Final Hearing Pursuant to Bankruptcy Rule 4001(b) and (c) (the Interim DIP Order ) and any related final order (together, the DIP Financing Orders ) and the other DIP Loan Documents (as defined therein), and any such payments shall be in accordance with the DIP Budget (as defined in the DIP Financing Orders) in effect in connection with such orders (subject to Permitted Budget Variances, as defined in the DIP Credit Agreement). 10. All time periods referenced in this order shall be calculated in accordance with Bankruptcy Rule 9006(a). 6

7 Pg 7 of The requirements set forth in Local Bankruptcy Rule (b) are satisfied by the contents of the Motion. 12. The Debtors are authorized and empowered to take all actions necessary to implement the relief granted in this Order. 7

8 Pg 8 of This Court shall retain jurisdiction with respect to all matters arising from or related to the implementation or interpretation of this Order. Dated New York, New York May 11 th, 2016 /s/ STUART M. BERNSTEIN UNITED STATES BANKRUPTCY JUDGE 8