Case 12-36187 Document 2282 Filed in TXSB on 07/19/13 Page 1 of 8 U.S. BANKRUPTCY COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION IN RE: ATP OIL & GAS CASE NO. 12-36187 CORPORATION, (CHAPTER 11) DEBTOR MOTION OF EXTERRAN ENERGY SOLUTIONS, L.P. FOR ALLOWANCE AND PAYMENT OF ADMINISTRATIVE EXPENSE CLAIM NOTICE UNDER COMPLEX CASE ORDER A HEARING WILL BE CONDUCTED ON THIS MATTER ON AUGUST, 2013 AT 1:30 P.M. (CT) OR AS SOON THEREAFTER AS PRACTICABLE, AT THE U.S. BANKRUPTCY COURT, 515 RUSK AVENUE, HOUSTON, TEXAS. IF YOU OBJECT TO THE RELIEF REQUESTED, YOU MUST RESPOND IN WRITING, SPECIFICALLY ANSWERING EACH PARAGRAPH OF THIS PLEADING. UNLESS OTHERWISE DIRECTED BY THE COURT, YOU MUST FILE YOUR RESPONSE WITH THE CLERK OF THE BANKRUPTCY COURT WITHIN TWENTY-THREE (23) DAY FROM THE DATE YOU WERE SERVED WITH THIS PLEADING. YOU MUST SERVE A COPY OF YOUR RESPONSE ON THE PERSON WHO SENT YOU THE NOTICE; OTHERWISE, THE COURT MAY TREAT THE PLEADING AS UNOPPOSED AND GRANT THE RELIEF REQUESTED. REPRESENTED PARTIES SHOULD ACT THROUGH THEIR ATTORNEYS. Exterran Energy Solutions, L.P. ( Exterran ), by and through its undersigned counsel, hereby moves (the Motion ) for an order compelling ATP Oil & Gas Corporation (the Debtor or ATP ) to pay Exterran an administrative expense claim pursuant to 11 U.S.C. 503(b)(1)(A) in the amount of $278,109.79 as of July 31, 2013, plus applicable contractual demobilization fees, interest, attorney s fees and any additional contractual charges accruing after July 31, 2013. 1
Case 12-36187 Document 2282 Filed in TXSB on 07/19/13 Page 2 of 8 Jurisdiction and Venue 1. This Court has jurisdiction over this proceeding pursuant to 28 U.S.C. 157 and 1334. This matter is a core proceeding pursuant to 28 U.S.C. 157 (b)(2)(b). Venue is proper in this district pursuant to 28 U.S.C. 1408 and 1409. 2. The statutory basis for the relief requested herein is section 503(b)(1)(A) of title 11 of the United States Bankruptcy Code (the Bankruptcy Code ). Background 3. Before commencing this chapter 11 case, ATP entered into various compression service agreements with Exterran including the following agreements dated November 1, 2008: (a) a Master Compression Services Agreement; and (b) a Schedule A Agreement and 1 Amendment (collectively the Compression Agreement ). The Compression Agreement covered five active compressor rentals as of August 17, 2012. 2 4. On August 17, 2012 (the Petition Date ), ATP filed a voluntary petition for relief under Chapter 11 of Title 11, United States Code. 5. Exterran continues to provide five gas compressors to ATP on five offshore leases. The post-petition amounts due as of July 31, 2013 for each lease and the monthly compression service fees are as follows: Lease: OCS-G 25864 (West Cameron Block 432) Accrued Service Fees: $32,428.78 Monthly Service Fee: $10,920.37 Lease: OCS-G 21378 (Garden Banks 142 A ) Accrued Service Fees: $86,957.42 1 The Compression Agreement is attached hereto are Exhibit A. 2 The Schedule A for each of the five compressors is attached hereto are Exhibits B-1 through B-5. 2
Case 12-36187 Document 2282 Filed in TXSB on 07/19/13 Page 3 of 8 Monthly Service Fee: $12,480.00 Lease: Serial No. OCS-G 10226 (Block 544, Brazos Area) Accrued Service Fees: $27,255.74 Monthly Service Fee: $9,184.00 Lease: OCS-G 19822 (Ship Shoal Block 358 A ) Accrued Service Fees: $71,804.09 Monthly Service Fee: $24,182.34 Lease: OCS-G 27532 (High Island Block 589 A ) Accrued Service Fees: $59,663.76 Monthly Service Fee: $18,189.60 6. Unpaid service fees on the compressors from the Petition Date through July 31, 2013 will be $278,109.79, as further set forth in the invoice aging report attached hereto are Exhibit C. 7. Invoices issued by Exterran are payable within 30 days of the invoice date. Invoices not timely paid are entitled to interest at the contractual rate of 18% per annum. See Compression Agreement at 2. 8. ATP also agreed to pay Exterran the demobilization fee reflected in each applicable Schedule A (the Demobilization Fee ). The Demobilization Fee is due and payable in full within thirty (30) days of the termination of Exterran s services under the applicable Schedule A. See Compression Agreement at 4. 9. The Demobilization Fee is likely to be imminently incurred as to the following three locations that are not included in the pending sale motion: (1) West Cameron Block 432; 3 (2) Garden Banks 142 A ; and (3) Block 544, Brazos Area. The cost of recovery and return of 3 The forgoing three oil and gas leases have been rejected or abandoned by ATP. See Order entered June 21, 2013, ECF No. 2096. The remaining 2 oil and gas leases, Ship Shoal Block 358 A and High Island Block 589 A, are included in the pending sale motion. 3
Case 12-36187 Document 2282 Filed in TXSB on 07/19/13 Page 4 of 8 the forgoing three compressors as required by the Compression Agreement is estimated at $1,000,000. 10. In addition to the invoiced amounts, Exterran is entitled to payment of attorneys fees as provided by the Compression Agreement and Texas law. See Compression Agreement at 13. Relief Requested 11. Exterran seeks an order allowing its administrative claim and immediate payment of its allowed claim pursuant to Section 503(b)(1) of the Bankruptcy Code for post-petition services rendered to ATP during the period of January 1, 2013 through July 31, 2013 in the contractual amounts provided in the Compression Agreement, plus the applicable contractual Demobilization Fees, interest, attorney s fees and any additional post petition charges that accrue as of the date of hearing. Argument 12. By providing services and equipment to ATP, ATP was provided with and derived a direct economic benefit equal to or in excess of the contractual postpetition charges due and owing to Exterran and requested in this Motion. In light of this benefit to the estate, Exterran is entitled to an administrative expense claim pursuant to Section 503(b)(1)(A) of the Bankruptcy th Code. See In re United Trucking Serv., Inc., 851 F.2d 159, 161-62 (6 Cir. 1988) (quoting In re st Mammoth Mart, Inc., 536 F.2d 950, 954 (1 Cir. 1976)) accord, NLRB v. Bildisco & Bildisco, 465 U.S. 513, 531, 104 S.Ct. 1188, 1199, 79 L.Ed.2d 482 (1984). 13. [T]he purpose of the priority treatment afforded by 503 is to encourage third parties to provide necessary goods and services to the debtor-in-possession so that it can continue to conduct its business, thus generating funds from which prepetition creditors can be 4
Case 12-36187 Document 2282 Filed in TXSB on 07/19/13 Page 5 of 8 paid. Matter of TransAmerican Natural Gas Corp., 978 F.2d 1409, 1420 (5th Cir. 1992) (Finding that well casing provided post petition to oil and gas operator was an actual and necessary expense of the estate). Not only does the estate enjoy the direct and measurable benefit of the product created because of post-petition purchase of goods and services, the estate also receives other less readily calculable benefits, such as the ability to continue to conduct business as usual. Id. 14. The Fifth Circuit has held that to qualify as an actual and necessary cost under section 503(b)(1)(A), a claim against the estate must have arisen post-petition and as a result of actions taken by the [debtor-in-possession] that benefitted the estate. Meredith Corp. v. Home Interiors & Gifts, Inc. (In re Home Interiors & Gifts, Inc.), 2008 Bankr. LEXIS 2476, *12 (citing Total Minatome Corp. v. Jack/Wade Drilling, Inc. (In re Jack/Wade Drilling, Inc.), 258 F.3d 385, th 387 (5 Cir. 2001); see also Toma Steel Supply, Inc. v. TransAmerican Natural Gas Corp. (In re th TransAmerican Natural Gas Corp.), 978 F.2d 1409, 1416 (5 Cir. 1992) ( A prima facie case under 503(b)(1) may be established by evidence that (1) the claim arises from a transaction with the debtor-in-possession; and (2) the goods or services supplied enhanced the ability of the debtor-in-possession s business to function as a going concern )); Penn Traffic Co., v. COR Route 5 Co., LLC (In re Penn Traffic Co.), 2005 WL 2276879, at *5 (Sept. 16, 2005, S.D.N.Y.) ( If the debtor-in-possession elects to continue to receive benefits from the other party to an executory contract pending a decision to reject or assume the contract, the debtor-in-possession is obligated to pay for the reasonable value of those services ). 15. Numerous courts hold that the costs of preserving a right to possess and use property are entitled to administrative priority. See In re Palace Quality Services Indus., Inc., 283 B.R. 868, 906 (Bankr. E.D. Mich. 2002) ( [creditor s] entire post-petition/pre-rejection 5
Case 12-36187 Document 2282 Filed in TXSB on 07/19/13 Page 6 of 8 claim against the estate is entitled to administrative priority under 11 U.S.C. 503(b)(1)(A). When Debtor entered into its lease with [creditor] for the tunnel washers, it acquired the right to possess and use these tunnel washers to the exclusion of the [creditor] for the term of the lease notwithstanding [creditor s] ownership interest in the very same washers. This right became property of the estate when Debtor filed its bankruptcy petition. The cost of preserving this right was the continued payment of the rent which Debtor had agreed to pay [creditor] for the leasehold interest created. The estate s obligation to pay the rent ceased only when the lease was deemed rejected... ); see also In re Fred Sanders Co., 22 B.R. 902, 905 n. 8 (Bankr. E.D. Mich. 1982) (rejecting debtor s argument that because it did not use the vans, no benefit was conferred upon the debtor and noting that United States Supreme Court precedent holds that benefit is measured by control of the leased property irrespective of how it is actually used ) (citing Kneeland v. Am. Loan & Trust Co., 136 U.S. 89, 34 L. Ed. 379, 10 S. Ct. 950 (1890)); In re Sturgis Iron & Metal Co., Inc., 420 B.R. 716 (Bankr. W.D. Mich. 2009) (debtor required to make post-petition, pre-rejection payments with respect to a leased vehicle because the payments were actual and necessary expenses of preserving the estate s rights under the lease); In re Curry Printers, Inc., 135 B.R. 564 (N.D. Ind. 1991) (debtor s access to and use of copiers qualified as an administrative expense under Bankruptcy Code section 503(b)(1)(A)). 16. The compression services provided by Exterran were essential to the continued operation and marketing of ATP s offshore facilities and provided significant benefit to the estate. As a result, Exterran s claim for post-petition compression services (including Demobilization Fees) is entitled to administrative priority. Reservation of Rights 17. Exterran reserves all rights and claims related in any way to its pre-petition 6
Case 12-36187 Document 2282 Filed in TXSB on 07/19/13 Page 7 of 8 claims, which amounts are further indicated in its Proofs of Claim and Second Amended Notice of Perfection of Lien Pursuant to Section 546(b) filed May 8, 2013 (ECF No. 1826) and the exhibits thereto. 18. Exterran also reserves its rights to file liens for said post-petition debts as may be allowed under Louisiana and/or Texas state laws. WHEREFORE, Exterran Energy Solutions, L.P. moves for an order (i) allowing a first priority administrative expense claim in the amounts established at the time of hearing plus contractual interest, attorney s fees, and post-order interest at the applicable rate from the date of entry until paid; and (ii) directing that ATP immediately pay the allowed administrative claim. Respectfully submitted, /s/ Kevin M. Maraist Kevin M. Maraist State Bar No. 12962020 ANDERSON, LEHRMAN, BARRE & MARAIST, LLP Gaslight Square 1001 Third Street, Ste. 1 Corpus Christi, Texas 78404 (361) 884-4981 FAX: (361) 884-1286 Attorneys for Exterran Energy Solutions, L.P. 7
Case 12-36187 Document 2282 Filed in TXSB on 07/19/13 Page 8 of 8 CERTIFICATE OF SERVICE This is to certify that a copy of Exterran Energy Solutions, L.P. s Motion For Allowance and Payment of Administrative Expense Claim (the Motion ) was served on July 19, 2013, by electronic filing through the court s electronic filing system, on all parties receiving service through such system. This is also to certify that a copy of the Motion was served on July 19, 2013, via U.S. mail as set forth below. ATP Oil & Gas Corporation 4600 Post Oak Place, Suite 100 Houston, Texas 77027-9726 Attention: Pauline Van der Sman-Archer (Debtor and Debtor-in-Possesion) Haynes and Boone, LLP 1221 McKinney Street, Suite 2100 Houston, Texas 77010 Attention: Charles A. Beckham, Jr. (Local Counsel to the Debtor s DIP Agent) Office of the United States Trustee For the Southern District of Texas 515 Rusk Street, Suite 3516 Houston, Texas 77002 Attention: Nancy L. Holley (United States Trustee) Cravath, Swaine & Moore LLP Worldwide Plaza 825 Eighth Avenue New York, New York 10019-7475 Attention: Paul H. Zumbro (Counsel to the Debtor s DIP Agent) Mayer Brown LLP 700 Louisiana Street, Suite 3400 Houston, Texas 77002-2730 Attention: Charles S. Kelley, Esq. (Counsel for the Debtor) Milbank, Tweed, Hadley & McCloy LLP 1 Chase Manhattan Plaza New York, New York 10005 Attention: Evan R. Fleck (Counsel to the Unsecured Creditors Committee) Bingham McCutchen LLP 399 Park Avenue New York, New York 10022-4689 Attention: Ronald J. Silverman (Counsel to Certain of the Debtor s DIP Lenders) Porter Hedges LLP 1000 Main Street, 36th Floor Houston, Texas 77002 Attention: James M. Vaughan (Local Counsel to the Unsecured Creditors Committee) /s/ Kevin M. Maraist Kevin M. Maraist N:\Kevin\Exterran\ATP Oil & Gas\Mo Allowance of Payment.wpd 8
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Case 12-36187 Document 2282-10 Filed in TXSB on 07/19/13 Page 1 of 2 U.S. BANKRUPTCY COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION IN RE: ATP OIL & GAS CASE NO. 12-36187 CORPORATION, (CHAPTER 11) DEBTOR ORDER GRANTING MOTION OF EXTERRAN ENERGY SOLUTIONS, L.P. FOR ALLOWANCE AND PAYMENT OF AN ADMINISTRATIVE EXPENSE CLAIM UPON CONSIDERATION of the Motion of Exterran Energy Solutions, L.P. ( Exterran ) for Allowance and Payment of an Administrative Expense Claim under 11 U.S.C. 503(b)(1)(A) (the Motion ); and upon consideration of the proceedings before the Court related to the Motion; and the Court having found that: (i) the Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334; (ii) this is a core proceeding pursuant to 28 U.S.C. 157(b); (iii) venue is proper in this Court pursuant to 28 U.S.C. 1408 and 1409; (iv) the Motion is in full compliance with applicable provisions of the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, the Local Rules of the United States Bankruptcy Court for the Southern District of Texas, and orders and procedures of this Court; (v) proper and adequate notice of the Motion, the deadline to file any objections to the Motion, and any hearing thereon was given, and no other or further notice is necessary; (vi) the legal and factual bases set forth in the Motion establish just cause for the relief granted herein; and (vii) the relief sought in the Motion is in the best interests of the Debtor and its estate; and after due deliberation and sufficient cause appearing therefor; IT IS HEREBY ORDERED that the Motion is GRANTED; IT IS FURTHER ORDERED that the Debtor shall immediately pay to Exterran its postpetition administrative expense claim pursuant to 11 U.S.C. 503(b)(1)(A) in the amount of
Case 12-36187 Document 2282-10 Filed in TXSB on 07/19/13 Page 2 of 2. IT IS FURTHER ORDERED that this Court shall retain jurisdiction to resolve all matters arising out of or related to this Order. Dated: Marvin Isgur United States Bankruptcy Judge