Case 16-11247-KJC Doc 108 Filed 06/29/16 Page 1 of 9 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: INTERVENTION ENERGY HOLDINGS, LLC., et al., Chapter 11 Case No. 16-11247(KJC) Debtors. 1 (Jointly Administered) Hearing Date: July 26, 2016 at 10:00 a.m. (ET) Objection Deadline: July 13, 2016 at 4:00 p.m. (ET) DEBTORS APPLICATION FOR AUTHORITY TO EMPLOY AND RETAIN RUST CONSULTING/OMNI BANKRUPTCY AS ADMINISTRATIVE AGENT NUNC PRO TUNC TO THE PETITION DATE The above-captioned debtors (collectively, the Debtors ) hereby submit this application (the Application ) for entry of an order, substantially in the form attached hereto as Exhibit A (the Order ), authorizing the Debtors to retain Rust Consulting/Omni Bankruptcy ( Rust Omni ) as administrative agent in these Chapter 11 Cases nunc pro tunc to the Petition Date (as defined herein). In support of the Application, the Debtors rely upon and incorporate by reference the Declaration of Paul H. Deutch in Support of the Debtors Application Pursuant to Bankruptcy Code Section 327(a) and Bankruptcy Rule 2014(a) for Authority to Employ and Retain Rust Consulting/Omni Bankruptcy as Administrative Agent Nunc Pro Tunc to the Petition Date (the Deutch Declaration ) a copy of which is attached hereto as Exhibit B. In further support of this Application, the Debtors respectfully represent: JURISDICTION AND VENUE 1. This court (the Court ) has jurisdiction to consider this matter pursuant to 28 U.S.C. 1334 and the Amended Standing Order of Reference from the United States District 1 The Debtors in these Chapter 11 cases, together with the last four digits of each Debtor s federal tax identification number, are as follows: Intervention Energy Holdings, LLC (8131); and Intervention Energy, LLC (8131). The mailing address for the Debtors, solely for purposes of notices and communications, is: 475 17th Street, Suite 1040, Denver, CO 80202. EAST\125108636.3
Case 16-11247-KJC Doc 108 Filed 06/29/16 Page 2 of 9 Court for the District of Delaware dated as of February 29, 2012. This matter is a core proceeding within the meaning of 28 U.S.C. 157(b)(2). The Debtors consent, pursuant to Local Rule 9013-1(f), to the entry of a final judgment or order with respect to this Application, if it is determined that the Court would lack Article III jurisdiction to enter such final order or judgment absent consent of the parties. 2. Venue of this proceeding and this Application is proper in this district pursuant to 28 U.S.C. 1408 and 1409. 3. The bases for the relief requested herein are section 327(a) of the Bankruptcy Code, rule 2014(a) of Federal Rules of Bankruptcy Procedures, and rule 2014-1 of the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of Delaware. BACKGROUND 4. On May 20, 2016 (the Petition Date ), each of the Debtors filed with this Court voluntary petitions for relief under the Bankruptcy Code. 5. 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 request for the appointment of a trustee or examiner has been made in these chapter 11 cases (the Chapter 11 Cases ). These Chapter 11 Cases are being jointly administered for procedural purposes only pursuant to Bankruptcy Rule 1015(b). 6. Additional factual background regarding the Debtors, including their business operations, their capital and debt structure, and the events leading to the filing of these chapter 11 cases, is set forth in more detail in the Declaration of John R. Zimmerman in Support of Chapter 11 Petitions and First Day Motions [Docket No. 11] (the First Day Declaration ), filed on the Petition Date. EAST\125108636.3 2
Case 16-11247-KJC Doc 108 Filed 06/29/16 Page 3 of 9 7. On the Petition Date, the Debtors filed the Debtors Application for Entry of an Order Authorizing Employment and Retention of Rust Consulting/Omni Bankruptcy as Claims and Noticing Agent, Nunc Pro Tunc to the Petition Date [Docket No. 5] (the 156(c) Application ). On May 25, 2016, the Court entered the Order Authorizing Employment and Retention of Rust Consulting/Omni Bankruptcy as Claims and Noticing Agent, Nunc Pro Tunc to the Petition Date [Docket No. 34] (the 156(c) Order ) authorizing the Debtors to retain Rust Omni as their claims and noticing agent in these Chapter 11 Cases pursuant to the terms of 156(c) Order and the engagement agreement between Rust Omni and the Debtors, dated as of May 18, 2016 (the Engagement Agreement ), a copy of which is attached hereto as Exhibit C. The Debtors stated in their 156(c) Application that they would seek by separate application authorization to retain and employ Rust Omni as an administrative agent should these Chapter 11 Cases require Rust Omni to perform duties outside the scope of 28 U.S.C. 156(c). RELIEF REQUESTED 8. The Debtors submit this Application for authority to employ and retain Rust Omni as Administrative Agent pursuant to section 327(a) of the Bankruptcy Code. Following the entry of the 156(c) Order, it is anticipated that Rust Omni will performed duties outside the scope of those approved in the 156(c) Order, namely the services Rust Omni provided in assisting the Debtors in preparing their Schedules and SOFAs as well as assisting with plan solicitation and tabulation. Accordingly, the Debtors submit this Application for authority to employ and retain Rust Omni as Administrative Agent in accordance with the terms and conditions of the Engagement Agreement. RUST OMNI S QUALIFICATIONS 9. As a specialist in claims management and legal administration services, Rust Omni provides comprehensive administrative solutions for Chapter 11 Cases. Rust Omni is one EAST\125108636.3 3
Case 16-11247-KJC Doc 108 Filed 06/29/16 Page 4 of 9 of the country s leading chapter 11 administrators, with substantial experience in matters of all sizes and levels of complexity, including several large bankruptcy cases pending in both this District and other districts: In re City Sports, Inc., No. 15-12054(KG) (Bankr. D. Del. Mar. 15, 2016); In re Karmaloop, Inc., Case No. 15-10635(MFW) (Bankr. D. Del. Mar. 25, 2015); In re Phoenix Payment Systems, Case No. 14-11848(MFW) (Bankr. D. Del. Aug. 4, 2014); In re Gridway Energy Holdings, et al., Case No. 14-10833(CSS) (Bankr. D. Del. Apr. 10, 2014); In re Restora Healthcare Holdings, LLC, et al., Case No. 14-10367(PJW) (Bankr. D. Del. Feb. 24, 2014); In re First Mariner Bancorp, Case No. 14-11952 (Bankr. D. Md. Feb. 10, 2014); In re HDOS Enterprises, Case No. 2:14-12028(NB) (Bankr. C.D. Cal. Feb. 3, 2014); In re FAH Liquidating Corp., et al., Case No. 13-13087(FAH) (Bankr. D. Del. Nov. 22, 2013); In re SGK Ventures, LLC, Case No. 13-37603 (SGK) (Bankr. N.D. Ill. Sep. 24, 2013). Based on Rust Omni s experience, the Debtors believe that Rust Omni is well-qualified to serve as the administrative agent in these Chapter 11 Cases. SERVICES TO BE PROVIDED 10. Pursuant to the Engagement Agreement, and to the extent requested by the Debtors, Rust Omni has agreed to perform, among other services, the following: (a) (b) (c) (d) (e) (f) assisting with the preparation and filing of the Debtors schedules of assets and liabilities and statements of financial affairs; generating and providing claim reports and claim objection exhibits; managing any rights offering pursuant to a Chapter 11 plan (a Plan ); managing the publication of legal notices; collecting and tabulating votes in connection with any Plan filed by the Debtors and providing ballot reports to the Debtors and their professionals; generating an official ballot certification and testifying, if necessary, in support of the ballot tabulation results; EAST\125108636.3 4
Case 16-11247-KJC Doc 108 Filed 06/29/16 Page 5 of 9 (g) (h) managing any distributions made pursuant to a Plan; and providing any and all necessary administrative tasks not otherwise specifically set forth above as the Debtors or its professionals may require in connection with these Chapter 11 Cases. 11. Rust Omni s appointment as Administrative Agent will provide the Debtors with experienced professionals and services that are essential to these Chapter 11 Cases. Rust Omni will coordinate with the Debtors other retained professionals in these Chapter 11 Cases to avoid any unnecessary duplication of services. Accordingly, the relief requested in this Application is in the best interests of the Debtors estates and all parties in interest. PROFESSIONAL COMPENSATION 12. The Debtors solicited, received, and reviewed rates from other noticing and claims agents and submit that Rust Omni s rates are competitive with respect to the rates charged by Rust Omni s competitors for the performance of similar services. As such, the Debtors believe that Rust Omni s rates are reasonable given Rust Omni s extensive bankruptcy experience, expertise, and high quality of service. 13. As referenced in the 156(c) Application, prior to the Petition Date, the Debtors provided Rust Omni a retainer in the amount of $5,000. Rust Omni has applied the retainer to all pre-petition invoices, and Rust Omni seeks to hold any amounts remaining in the retainer as of the Petition Date during these Chapter 11 Cases as security for the payment of fees and expenses incurred under the Engagement Agreement. 14. The Debtors propose to compensate Rust Omni on substantially the terms and conditions set forth in the Engagement Agreement. To the extent that Rust Omni s duties exceed the scope of the 156(c) Order, Rust Omni intends to apply to the Court for allowance of compensation and reimbursement of reasonable and necessary out-of-pocket expenses incurred after the Petition Date in accordance with sections 330 and 331 of the Bankruptcy Code, the EAST\125108636.3 5
Case 16-11247-KJC Doc 108 Filed 06/29/16 Page 6 of 9 Bankruptcy Rules, the Local Rules, and any further orders of the Court (collectively, the Fee Guidelines ). DISINTERESTEDNESS 15. To the best of the Debtors knowledge, and except as disclosed in the Deutch Declaration, Rust Omni: (i) is a disinterested person within the meaning of section 101(14) of the Bankruptcy Code; (ii) does not hold or represent an interest adverse to the Debtors estates in connection with any matter on which Rust Omni will be employed; and (iii) neither Rust Omni nor any of its employees has any connection with the Debtors, their creditors, the United States Trustee or any other party in interest in these Chapter 11 Cases. 16. Prior to the Petition Date, Rust Omni performed certain professional services for the Debtors in accordance with the Engagement Agreement. The Debtors do not owe Rust Omni any amount for services performed or expenses incurred prior to the Petition Date. 17. In connection with its appointment as Administrative Agent in these Chapter 11 Cases, Rust Omni represents, among other things, that it will not employ any past or present employees of the Debtors in connection with its work as the administrative agent in these Chapter 11 Cases. 18. Rust Omni will conduct ongoing reviews of its files to ensure that no conflict or other disqualifying circumstances exist or arise. If any new material facts or circumstances are discovered that would require disclosure, Rust Omni will supplement its disclosure to the Court. 19. To the extent there is any inconsistency between this Application, the Engagement Agreement, the Fee Guidelines and the Court Order approving this Application, the Order shall govern. EAST\125108636.3 6
Case 16-11247-KJC Doc 108 Filed 06/29/16 Page 7 of 9 approval: BASIS FOR RELIEF 20. Section 327(a) of the Bankruptcy Code provides that a debtor, subject to Court See 11 U.S.C. 327(a). [M]ay 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 [debtor] in carrying out the [debtor] s duties under this title. 21. Bankruptcy Rule 2014(a) requires that an application for retention include: [S]pecific facts showing the necessity for the employment, the name of the [firm] to be employed, the reasons for the selection, the professional services to be rendered, any proposed arrangement for compensation, and, to the best of the applicant s knowledge, all of the [firm s] connections with the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee. See Fed. R. Bankr. P. 2014(a). 22. In light of the size and complexity of these Chapter 11 Cases, the Debtors respectfully submit that Rust Omni s retention and employment pursuant to the terms of the Engagement Agreement are both necessary and in the best interests of the Debtors estates and all parties in interest to these Chapter 11 Cases. 23. The Debtors seek entry of an order approving the relief requested by this Application nunc pro tunc to the Petition Date. Cause exists in support of such request. As the Court is well aware, the first several weeks of these Chapter 11 Cases were mired in litigation and controversy concerning the Debtors authority to commence these Chapter 11 Cases and reporting owing to the Office of the U.S. Trustee and EIG, the Secured Noteholders in these EAST\125108636.3 7
Case 16-11247-KJC Doc 108 Filed 06/29/16 Page 8 of 9 Chapter 11 Cases. The Debtors are filing the Application as soon as practicable following the commencement of these Chapter 11 Cases. NOTICE 24. Notice of this Application shall be provided to: (a) the Office of the United States Trustee for the District of Delaware, (b) each of the Debtors largest unsecured creditors as identified on their respective voluntary petitions, (c) counsel to EIG Management Company, as administrative agent under the Note Purchase Agreement, dated as of January 6, 2012, (d) the United States Attorney s Office for the District of Delaware, (e) the Securities and Exchange Commission, (f) the Internal Revenue Service, and (g) any such other party entitled to notice pursuant to Bankruptcy Rule 2002 and Local Rule 2002-1(b). The Debtors respectfully submit that no further notice of this Application is required. NO PRIOR REQUEST 25. No prior request for the relief sought herein has been made to this Court or any other Court. [Remainder of page left intentionally blank.] EAST\125108636.3 8
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Case 16-11247-KJC Doc 108-1 Filed 06/29/16 Page 1 of 2 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: INTERVENTION ENERGY HOLDINGS, LLC., et al., Chapter 11 Case No. 16-11247(KJC) Debtors. 1 (Jointly Administered) Hearing Date: July 26, 2016 at 10:00 a.m. (ET) Objection Deadline: July 13, 2016 at 4:00 p.m. (ET) DEBTORS APPLICATION FOR AUTHORITY TO EMPLOY AND RETAIN RUST CONSULTING/OMNI BANKRUPTCY AS ADMINISTRATIVE AGENT NUNC PRO TUNC TO THE PETITION DATE PLEASE TAKE NOTICE that on the date hereof, the above-captioned debtors (collectively, the Debtors ) filed the Debtors Application for Authority to Employ and Retain Rust Consulting/Omni Bankruptcy as Administrative Agent Nunc Pro Tunc to the Petition Date (the Application ) with the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court ). A copy of the Application is being provided herewith and may also be obtained by visiting http://omnimgt.com/interventionenergy/ PLEASE TAKE FURTHER NOTICE that any objection or other response to the Application must be in writing, filed with the Clerk of the Bankruptcy Court, 824 North Market Street, 3rd Floor, Wilmington, Delaware 19801, and served upon and received by the undersigned counsel for the Debtors on or before July 13, 2016 at 4:00 p.m. (ET). PLEASE TAKE FURTHER NOTICE that if a response is timely filed, served and received, you or your attorney must attend the hearing on the Objection scheduled to be held before The Honorable Kevin J. Carey at the Bankruptcy Court, 824 North Market Street, 5th Floor, Courtroom #5, Wilmington, Delaware 19801, on July 26, 2016 at 10:00 a.m. (ET). 1 The Debtors in these Chapter 11 cases, together with the last four digits of each Debtor s federal tax identification number, are as follows: Intervention Energy Holdings, LLC (8131); and Intervention Energy, LLC (8131). The mailing address for the Debtors, solely for purposes of notices and communications, is: 475 17th Street, Suite 1040, Denver, CO 80202. EAST\125108636.3
Case 16-11247-KJC Doc 108-1 Filed 06/29/16 Page 2 of 2 IF NO REPONSES TO THE APPLICATION ARE TIMELY FILED, SERVED AND RECEIVED IN ACCORDANCE WITH THIS NOTICE, THE BANKRUPTCY COURT MAY GRANT THE RELIEF REQUESTED BY THE APPLICATION WITHOUT FURTHER NOTICE OR HEARING. Dated: June 29, 2016 Wilmington, Delaware Respectfully submitted, DLA PIPER LLP (US) /s/ Stuart M. Brown Stuart M. Brown (DE 4050) 1201 North Market Street, Suite 2100 Wilmington, DE 19801 Telephone: (302) 468-5700 Facsimile: (302) 394-2341 Email: Stuart.Brown@dlapiper.com -and- Thomas R. Califano (admitted pro hac vice) Dienna Corrado (admitted pro hac vice) 1251 Avenue of the Americas New York, New York 10020 Telephone: (212) 335-4500 Facsimile: (212) 335-4501 Email: Thomas.Califano@dlapiper.com Dienna.Corrado@dlapiper.com Proposed Attorneys for Debtors and Debtors in Possession EAST\125108636.3
Case 16-11247-KJC Doc 108-2 Filed 06/29/16 Page 1 of 4 EXHIBIT A Proposed Order EAST\125108636.3
Case 16-11247-KJC Doc 108-2 Filed 06/29/16 Page 2 of 4 IN UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: INTERVENTION ENERGY HOLDINGS, LLC., et al., Chapter 11 Case No. 16-11247(KJC) (Jointly Administered) Debtors. 1 Related Docket No. ORDER AUTHORIZING EMPLOYMENT AND RETENTION OF RUST CONSULTING/OMNI BANKRUPTCY AS ADMINISTRATIVE AGENT, NUNC PRO TUNC TO THE PETITION DATE Upon the application (the Application ) 2 of the Debtors for entry of an order (this Order ) authorizing the employment and retention of Rust Consulting/Omni Bankruptcy ( Rust/Omni ) as administrative agent in the Debtors Chapter 11 Cases, effective nunc pro tunc to the Petition Date, as more fully set forth in the Application; and upon due and sufficient notice of the Application having been provided under the particular circumstances, and it appearing that no other or further notice need be provided; and the Court having jurisdiction to consider the Application and the relief requested therein in accordance with 28 U.S.C. 157 and 1334; and consideration of the Application and the relief requested therein being a core proceeding under 28 U.S.C. 157(b)(2); and that this Court may enter a final order consistent with Article III of the United States Constitution; and venue being proper before this Court under 28 U.S.C. 1408 and 1409; and a hearing having been held to consider the relief requested in the Application (the Hearing ); and upon the Deutch Declaration submitted in support of the Application and the record of the Hearing and all the proceedings had before the Court; and the Court having 1 The Debtors in these Chapter 11 cases, together with the last four digits of each Debtor s federal tax identification number, are as follows: Intervention Energy Holdings, LLC (8131); and Intervention Energy, LLC (8131). The mailing address for the Debtors, solely for purposes of notices and communications, is: 475 17th Street, Suite 1040, Denver, CO 80202. 2 Capitalized terms used but not otherwise defined in this Order have the meanings used in the Application. EAST\125108636.3
Case 16-11247-KJC Doc 108-2 Filed 06/29/16 Page 3 of 4 found and determined that Rust/Omni has the capability and experience to provide the services described in the Application, that Rust/Omni does not hold an interest adverse to the Debtors or their estates with respect to the matters on which it is to be engaged, and that the employment and retention of Rust/Omni is in the best interests of the Debtors, their estates and creditors, and any parties in interest; and that the legal and factual bases set forth in the Application and at the Hearing establish just cause for the relief granted herein; and after due deliberation thereon and sufficient cause appearing therefor, it is HEREBY ORDERED THAT: 1. The Application is granted as set forth herein. 2. Pursuant to section 327(a) of the Bankruptcy Code and Bankruptcy Rule 2014(a), the Debtors are authorized to employ and retain Rust Omni as Administrative Agent, nunc pro tunc to the Petition Date, pursuant to the terms and conditions set forth in the Engagement Agreement. 3. Rust Omni is authorized to perform all actions and services set forth in the Application, including, but not limited to, the following services: (a) (b) (c) (d) (e) (f) (g) assisting with the preparation and filing of the Debtors schedules of assets and liabilities and statements of financial affairs; generating and providing claim reports and claim objection exhibits; managing any rights offering pursuant to a Chapter 11 plan (a Plan ); managing the publication of legal notices; collecting and tabulating votes in connection with any Plan filed by the Debtors and providing ballot reports to the Debtors and their professionals; generating an official ballot certification and testifying, if necessary, in support of the ballot tabulation results; managing any distributions made pursuant to a Plan; and EAST\125108636.3
Case 16-11247-KJC Doc 108-2 Filed 06/29/16 Page 4 of 4 (h) providing any and all necessary administrative tasks not otherwise specifically set forth above as the Debtors or its professionals may require in connection with these chapter 11 cases. 4. This Order shall not apply to any services Rust Omni was authorized to render pursuant to the order approving the 156(c) Application. 5. To the extent that Rust Omni s duties exceed the scope of those set forth in the 156(c) Application, Rust Omni shall be compensated in accordance with, will file interim and final fee applications for allowance of its compensation and expenses pursuant to, and shall be subject to, the Fee Guidelines. 6. Rust Omni shall be reimbursed for reasonable and necessary expenses as provided in the Fee Guidelines. 7. Rust Omni shall use its best efforts to avoid any duplication of services provided by any of the Debtors other retained professionals in these Chapter 11 Cases. 8. The Debtors and Rust Omni are authorized to take such other and further actions necessary to comply with all of the duties set forth in the Application. 9. To the extent that there may be any inconsistency between the terms of the Application, the Engagement Agreement or this Order, the terms of this Order shall govern. 10. This Order is immediately effective and enforceable upon its entry 11. This Court retains jurisdiction with respect to all matters arising from, or related to, the implementation of this Order. Dated:, 2016 Wilmington, Delaware THE HONORABLE KEVIN J. CAREY UNITED STATES BANKRUPTCY JUDGE EAST\125108636.3
Case 16-11247-KJC Doc 108-3 Filed 06/29/16 Page 1 of 6 EXHIBIT B Deutch Declaration EAST\125108636.3
Case 16-11247-KJC Doc 108-3 Filed 06/29/16 Page 2 of 6 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: INTERVENTION ENERGY HOLDINGS, LLC., et al., Chapter 11 Case No. 16-11247(KJC) (Jointly Administered) Debtors. 1 DECLARATION OF PAUL H. DEUTCH IN SUPPORT OF THE DEBTORS APPLICATION FOR AUTHORITY TO EMPLOY AND RETAIN RUST CONSULTING/OMNI BANKRUPTCY AS ADMINISTRATIVE AGENT NUNC PRO TUNC TO THE PETITION DATE I, Paul H. Deutch, under penalty of perjury, declare as follows: 1. I am the Executive Managing Director of Rust Consulting/Rust Omni Bankruptcy ( Rust Omni ), which maintains an office at 1120 Avenue of the Americas, 4th Floor, New York, NY 10036. I am duly authorized to make this declaration on behalf of Rust Omni. Except as otherwise noted, I have personal knowledge of the matters set forth herein, and if called and sworn as a witness, I could and would testify thereto. 2. This declaration is submitted in support of the Debtors Application for Authority to Employ and Retain Rust Consulting/Omni Bankruptcy as Administrative Agent Nunc Pro Tunc to the Petition Date (the Application ) of the above-captioned debtors and debtors in possession (collectively, the Debtors ) for authorization pursuant to section 327(a) of the Bankruptcy Code and Bankruptcy Rule 2014(a) to employ and retain Rust Omni as administrative agent ( Administrative Agent ) in connection with the above-captioned Chapter 11 Cases and in accordance with the terms and conditions of the Engagement Agreement by and between the 1 The Debtors in these Chapter 11 cases, together with the last four digits of each Debtor s federal tax identification number, are as follows: Intervention Energy Holdings, LLC (8131); and Intervention Energy, LLC (8131). The mailing address for the Debtors, solely for purposes of notices and communications, is: 475 17th Street, Suite 1040, Denver, CO 80202. EAST\125108636.3
Case 16-11247-KJC Doc 108-3 Filed 06/29/16 Page 3 of 6 Debtors and Rust Omni dated as of May 18, 2016 (the Engagement Agreement ), a true and correct copy of which is attached to the Application as Exhibit C. The statements contained herein are based upon personal knowledge. 3. Rust Omni is an industry leader whose professionals have significant experience in both the legal and administrative aspects of large, complex Chapter 11 Cases. Rust Omni s professionals have experience in noticing, claims administration, solicitation, balloting, and facilitating other administrative aspects of Chapter 11 Cases, including in matters of this size and complexity. Rust Omni s professionals have acted as official claims and noticing agent in many large bankruptcy cases in this District and in other districts nationwide, including: In re City Sports, Inc., No. 15-12054(KG) (Bankr. D. Del. Mar. 15, 2016); In re Karmaloop, Inc., Case No. 15-10635(MFW) (Bankr. D. Del. Mar. 25, 2015); In re Phoenix Payment Systems, Case No. 14-11848(MFW) (Bankr. D. Del. Aug. 4, 2014); In re Gridway Energy Holdings, et al., Case No. 14-10833(CSS) (Bankr. D. Del. Apr. 10, 2014); In re Restora Healthcare Holdings, LLC, et al., Case No. 14-10367(PJW) (Bankr. D. Del. Feb. 24, 2014); In re First Mariner Bancorp, Case No. 14-11952 (Bankr. D. Md. Feb. 10, 2014); In re HDOS Enterprises, Case No. 2:14-12028(NB) (Bankr. C.D. Cal. Feb. 3, 2014); In re FAH Liquidating Corp., et al., Case No. 13-13087(FAH) (Bankr. D. Del. Nov. 22, 2013); In re SGK Ventures, LLC, Case No. 13-37603 (SGK) (Bankr. N.D. Ill. Sep. 24, 2013). 4. The Debtors selected Rust Omni to serve as the Administrative Agent for the Debtors estates, as set forth in more detail in the Application filed contemporaneously herewith. To the best of my knowledge, and based upon information provided to me by the Debtors, and except as provided herein, neither Rust Omni, nor any employee thereof, has any materially adverse connection to the Debtors, their creditors or other relevant parties. Rust Omni may have EAST\125108636.3 2
Case 16-11247-KJC Doc 108-3 Filed 06/29/16 Page 4 of 6 relationships with certain of the Debtors creditors as vendors or in connection with cases in which Rust Omni serves or has served in a neutral capacity as noticing, claims, balloting and/or administrative advisor for another chapter 11 debtor. In addition, Rust Omni s personnel may have relationships with some of the Debtors creditors or other parties-in-interest. However, to the best of my knowledge, such relationships, to the extent they exist, are of a personal nature and completely unrelated to these Chapter 11 Cases. 5. Rust Omni has and will continue to represent clients in matters unrelated to these Chapter 11 Cases. In addition, Rust Omni has had and will continue to have relationships in the ordinary course of its business with certain vendors, professionals and other parties-in-interest that may be involved in these Chapter 11 Cases in matters unrelated to these Chapter 11 Cases. Rust Omni may also provide professional services to entities or persons that may be creditors or parties in interest in these Chapter 11 Cases, which services do not directly relate to, or have any direct connection with, the Chapter 11 Cases or the Debtors. 6. Rust Omni has reviewed its electronic database to determine whether it has any relationships with the entities provided by the Debtors. At this time, I am not aware of any relationship which would present a disqualifying conflict of interest. Should Rust Omni discover any new relevant facts or relationships bearing on the matters described herein during the period of its retention, Rust Omni will use reasonable efforts to file promptly a supplemental affidavit. 7. To the best of my knowledge, neither Rust Omni nor any employee thereof has any affiliation with the Debtors, their creditors, other parties-in-interest, the United States Trustee or any other person employed by the Office of the United States Trustee. To the best of my knowledge, neither Rust Omni nor any other employee thereof holds any interest adverse to the Debtors estates with respect to the matters upon which it is to be engaged. Based on the EAST\125108636.3 3
Case 16-11247-KJC Doc 108-3 Filed 06/29/16 Page 5 of 6 foregoing, I believe that Rust Omni is a disinterested person as that term is defined in section 101(14) of the Bankruptcy Code. 8. Rust Omni shares a corporate parent with certain companies that provide integrated technology products and services to the legal profession for electronic discovery, class action settlements, financial transactions, bankruptcy, litigation and regulatory compliance. Given the legal and operational separateness of Rust Omni from its affiliates and the administrative nature of the services performed by such companies, Rust Omni does not believe that a conflict would arise solely from any relationship or claim of an affiliate or its corporate parent of Rust Omni. 9. In performing the services described in the Application, Rust Omni will charge the rates set forth on the fee schedule appended to the Engagement Agreement. These rates are at least as favorable as the prices Rust Omni charges in cases in which the firm has been retained to perform similar services. 10. As referenced in the Application, Rust Omni has received a $5,000 retainer from the Debtors. Rust Omni has applied the retainer to all pre-petition invoices, and will apply any remaining retainer amounts to post-petition amounts due. Rust Omni also seeks to thereafter hold the retainer under the Engagement Agreement during these Chapter 11 Cases to apply against unpaid fees and expenses incurred in performing services for the Debtors under the Engagement Agreement. 11. Subject to the Court s approval, the Debtors have agreed to compensate Rust Omni for professional services rendered pursuant to section 327(a) of the Bankruptcy Code in connection with these Chapter 11 Cases according to the terms and conditions of the Engagement Agreement. EAST\125108636.3 4
Case 16-11247-KJC Doc 108-3 Filed 06/29/16 Page 6 of 6 12. To the extent that Rust Omni s duties exceed the scope of those set forth in the 156(c) Application, Rust Omni intends to apply to the Court for allowance of compensation and reimbursement of reasonable and necessary out-of-pocket expenses incurred after the Petition Date in accordance with the Fee Guidelines (as defined in the Application). 13. Rust Omni represents, among other things, that: (a) (b) (c) (d) it will not consider itself employed by the United States government and shall not seek any compensation from the United States government in its capacity as Administrative Agent; by accepting employment in these Chapter 11 Cases, Rust Omni waives any right to receive compensation from the United States government; in its capacity as Administrative Agent, Rust Omni will not be an agent of the United States and will not act on behalf of the United States; and Rust Omni will not employ any past or present employees of the Debtors in connection with its work as Administrative Agent. Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that, to the best of my knowledge and after reasonable inquiry, the foregoing is true and correct. Executed on this 29th day of June, 2016. /s/ Paul H. Deutch Paul H. Deutch Executive Management Director Rust Consulting/Omni Bankruptcy EAST\125108636.3 5
Case 16-11247-KJC Doc 108-4 Filed 06/29/16 Page 1 of 7 EXHIBIT C Engagement Agreement EAST\125108636.3
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