Case 16-11599-MFW Doc 378 Filed 12/20/16 Page 1 of 13 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: TAH Windown, Inc. 1 Debtor. Chapter 11 Case No. 16-11599 (MFW) Objection Deadline: January 9, 2017 at 4:00 p.m. Hearing Date: Only if an objection is filed. SUMMARY FIFTH MONTHLY FEE APPLICATION OF OLSHAN FROME WOLOSKY LLP FOR COMPENSATION FOR SERVICES RENDERED AND REIMBURSEMENT OF EXPENSES AS COUNSEL TO THE DEBTOR FOR THE PERIOD FROM NOVEMBER 1, 2016 THROUGH NOVEMBER 30, 2016 Name of Applicant: Authorized to Provide Professional Services to: Olshan Frome Wolosky LLP Debtor and Debtor in Possession Date of Retention: Order Entered August 1, 2016 nunc pro tunc to July 1, 2016 Period for which compensation and reimbursement is sought: November 1, 2016 through November 30, 2016 Total amount of compensation sought as actual, reasonable and necessary: $12,966.00 Amount of expense reimbursement sought as actual, reasonable and necessary: $0.00 This is an: X interim final application This is Olshan s fifth monthly fee application filed in this chapter 11 case. 1 The Debtor in this case (with the last four digits of its taxpayer ID no. in parenthesis): TAH Windown f/k/a SynCardia Systems, Inc. (1044). The Debtor s corporate address is: 1992 E. Silverlake Road, Tucson, Arizona 85713. 1
Case 16-11599-MFW Doc 378 Filed 12/20/16 Page 2 of 13 Summary of Olshan Frome Wolosky LLP s Interim Fee Applications Filing Date/Docket No. 8/22/16 [D.K. 218] 9/20/16 [D.K. 277] 10/20/16 [D.K. 315] (1st Interim) [D.K. 344] 11/21/16 [D.K. 351] 12/ /16 [D.K.] Period 07/01/2016 through 07/31/2016 08/01/2016 through 08/31/2016 09/01/2016 through 09/30/2016 07/01/2016 through 09/30/2016 10/01/2016 through 10/31/2016 11/01/2016 through 11/30/2016 Fees Requested Expenses Requested 20% Holdback (CNO) Order Date/ Docket No. $129,744.50 $1,628.16 $25,948.90 TBD $82,976.00 $1,656.52 $16,595.20 TBD $75,355.00 $1,249.19 $15,071.00 TBD $288,075.50 $4,533.87 $57,615.10 TBD $21,792.00 $94.50 $4,358.40 TBD $12,966.00 $0.00 $2,593.20 TBD Total $322,833.50 $4,628.37 $64,566.70 TBD 2
Case 16-11599-MFW Doc 378 Filed 12/20/16 Page 3 of 13 Timekeeper Summary Timekeeper Position Rate Hours Amount Michael S. Fox Partner $710 5.3 $3,763.00 Jonathan T. Koevary Counsel $560 11.6 $6,496.00 Lauren B. Irby Associate $290 4.3 $1,247.00 Wilfred S. Lancaster Paralegal $200 6.4 $1,460.00 Project Category Summary Totals 27.6 $12,966.00 Blended Rate: $470.00 Project Category Matter Hours Amount Case Administration 001 18.2 $10,141.00 Asset Disposition 004 2.6 $943.00 Claims Administration and Objections 006 0.3 $168.00 Fee/Employment Applications/Objections 008 6.5 $1,714.00 Totals 27.6 $12,966.00 3
Case 16-11599-MFW Doc 378 Filed 12/20/16 Page 4 of 13 Expense Category Summary Expense Category Amount Total $0.00 4
Case 16-11599-MFW Doc 378 Filed 12/20/16 Page 5 of 13 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: TAH Windown, Inc. 1 Debtor. Chapter 11 Case No. 16-11599 (MFW) Objection Deadline: January 9, 2017 at 4:00 p.m. Hearing Date: Only if an objection is filed. FIFTH MONTHLY FEE APPLICATION OF OLSHAN FROME WOLOSKY LLP FOR COMPENSATION FOR SERVICES RENDERED AND REIMBURSEMENT OF EXPENSES AS COUNSEL TO THE DEBTOR FOR THE PERIOD FROM NOVEMBER 1, 2016 THROUGH NOVEMBER 30, 2016 Pursuant to sections 330 and 331 of title 11 of the United States Code (the Bankruptcy Code ), and Rule 2016 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), Olshan Frome Wolosky LLP ( Olshan ) hereby requests (the Application ) compensation for its fees and reimbursement for its expenses for professional legal services rendered as counsel to the above-captioned debtor (the Debtor ) in the amount of $12,966.00, and reimbursement in the amount of $0.00, for the period beginning November 1, 2016 through and including November 30, 2016 (the Application Period ). In support of this Application, Olshan represents as follows: Background 1. On July 1, 2016 (the Petition Date ), the Debtor filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court ). 1 The Debtor in this case (with the last four digits of its taxpayer ID no. in parenthesis): TAH Windown f/k/a SynCardia Systems, Inc. (1044). The Debtor s corporate address is: 1992 E. Silverlake Road, Tucson, Arizona 85713.
Case 16-11599-MFW Doc 378 Filed 12/20/16 Page 6 of 13 2. The Debtor continues to possess its assets as a debtor-in-possession in accordance with sections 1107 and 1108 of the Bankruptcy Code. 3. On August 1, 2016, the Bankruptcy Court entered the Order Establishing Procedures for Interim Compensation and Reimbursement of Expenses of Professionals (the Order ). This Application is filed in accordance with the procedures set forth in the Order. 4. On August 1, 2016, the Bankruptcy Court approved the retention of Olshan as counsel to the Debtor, nunc pro tunc to July 1, 2016. 5. On August 22, 2016, Olshan filed its First Monthly Fee Application for the period the July 1, 2016 through and including July 31, 2016 (the First Monthly Fee Application ) for approval of reimbursement compensation in the amount of $129,744.50 for fees and expenses in the amount of $1,628.16. The deadline for objections was September 12, 2016 [Dk. 218]. 6. On September 20, 2016, Olshan filed its Second Monthly Fee Application for the period the August 1, 2016 through and including August 31, 2016 (the Second Monthly Fee Application ) for approval of reimbursement compensation in the amount of $82,976.00 for fees and expenses in the amount of $1,656.52. The deadline for objections was October 11, 2016 [Dk. 277]. 7. On October 20, 2016, Olshan filed its Third Monthly Fee Application for the period the September 1, 2016 through and including September 30, 2016 (the Third Monthly Fee Application ) for approval of reimbursement compensation in the amount of $75,355.00 for fees and expenses in the amount of $1,249.19. The deadline for objections was November 9, 2016 [Dk. 315]. 2
Case 16-11599-MFW Doc 378 Filed 12/20/16 Page 7 of 13 8. November 21, 2016, Olshan filed its Fourth Monthly Fee Application for the period the October 1, 2016 through and including October 31, 2016 (the Fourth Monthly Fee Application ) for approval of reimbursement compensation in the amount of $21,792.00 for fees and expenses in the amount of $94.50. The deadline for objections was December 12, 2016 [Dk. 351]. Jurisdiction and Venue 9. The Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334, and the Amended Standing Order of Reference from the United States District Court for the District of Delaware, dated as of February 29, 2012 (the Amended Standing Order ). This is a core proceeding pursuant to 28 U.S.C. 157(b)(2), and the Court may enter a final order consistent with Article III of the United States Constitution. Pursuant to Local Rule 9013-1(f), the Debtor consents to entry of a final order by the Court in connection with this Motion to the extent that it is later determined that the Court, absent consent of the parties, cannot enter final orders or judgments in connection herewith consistent with Article III of the United States Constitution. 10. The statutory predicates for the relief requested herein are sections 330 and 331 of the Bankruptcy Code and Bankruptcy Rule 2016. Relief Requested 11. Olshan submits this Application pursuant to sections 330 and 331 of the Bankruptcy Code, and pursuant to the Order. All services for which compensation is requested were performed for, or on behalf of, the Debtor. 12. This Application is the fifth monthly application filed by Olshan in this case. In connection with the professional services described below, by this Application, 3
Case 16-11599-MFW Doc 378 Filed 12/20/16 Page 8 of 13 Olshan has performed professional services during the Application Period and incurred fees in the amount of $12,966.00. Olshan has not incurred expenses during the Application Period. Attached hereto as Exhibit A is a detailed statement of fees for services rendered in this case during the Application Period, supporting $12,966.00 in compensation. 13. Through this Application, and in accordance with the Order, Olshan seeks (i) the allowance on an interim basis of fees in the amount of $12,966.00 (the Fee Amount ), and (ii) payment of $10,372.80 (representing 80% of the Fee Amount). Summary of Services 14. Given the nature and value of the services provided by Olshan to the Debtor as described herein, the interim amounts sought under this Application are fair and reasonable pursuant to section 330 of the Bankruptcy Code. 15. Olshan received no payment and no promises for payment from any source for services rendered in connection with this case other than in accordance with the Bankruptcy Code, and as set forth in the retention application filed in this case. There is no agreement or understanding between Olshan and any other person for the sharing of compensation to be received for the services rendered in this case. 16. In general, pursuant to the Retention Order, the services that Olshan was authorized to render as counsel to the Debtor included, without limitation, the following: a. advising the Debtor of its rights, powers and duties as debtor and debtor in possession continuing to operate and to manage its business under chapter 11 of the Bankruptcy Code; b. preparing on behalf of the Debtor all necessary and appropriate applications, motions, draft orders, other pleadings, notices, schedules and other documents, and reviewing all financial and other reports to be filed in this chapter 11 case; 4
Case 16-11599-MFW Doc 378 Filed 12/20/16 Page 9 of 13 c. advising the Debtor concerning, and preparing responses to, applications, motions, other pleadings, notices and other papers that may be filed by other parties in this chapter 11 case; d. advising the Debtor with respect to, and assisting in the negotiation and documentation of, financing agreements and related transactions; e. reviewing the nature and validity of any liens asserted against the Debtor s property and advising the Debtor concerning the enforceability of such liens; f. advising the Debtor regarding its ability to initiate actions to collect and recover property for the benefit of its estate; g. advising and assisting the Debtor in connection with any commercial transactions; h. advising and assisting the Debtor in negotiations or communications with the Debtor s customers, equity holders and other stakeholders, and government regulatory bodies; i. advising the Debtor concerning executory contract assumptions, assignments and rejections; j. assisting the Debtor in reviewing, estimating and resolving claims asserted against the Debtor s estate; k. commencing and conducting litigation necessary and appropriate to assert rights held by the Debtor, protect assets of the Debtor s chapter 11 estate or otherwise further the goal of completing the Debtor s successful chapter 11 process, and to defend against any litigation brought against the Debtor; and l. performing all other necessary and appropriate legal services in connection with this chapter 11 case for or on behalf of the Debtor. 12. The legal services rendered by Olshan have been provided with as little duplication of effort as possible, and are detailed by professional and project category in Exhibit A. 5
Case 16-11599-MFW Doc 378 Filed 12/20/16 Page 10 of 13 Amounts Requested 13. For the Application Period, and consistent with the Order, Olshan at this time seeks allowance on an interim basis of the Fee Amount, and payment of 80% of its Fee Amount, in the amount of $10,372.80 in connection with the professional services described above and detailed in Exhibit A. 14. Pursuant to Local Rule 2016-2, Olshan represents as follows with regard to its charges for actual and necessary costs and expenses during the Application Period: (a) (b) (c) Copying, printing and scanning charges are $.10 per page for which charge is reasonable and customary in the legal industry representing costs of copy materials, acquisition, maintenance, storage and operation of copy machines and printers, together with a margin for recovery of lost expenditures. In addition, Olshan often utilizes outside copier services for high volume projects, and this Application seeks the recovery of those costs. Incoming facsimiles are not billed. Olshan has not billed for any staff overtime. Out-going facsimiles are billed, if applicable, at the rate of $.10 per page. The cost represents operator time, the maintenance of several dedicated facsimile telephone lines, supplies and equipment, and includes a margin for recovery of lost expenditures. Toll telephone charges are not billed. In addition, Olshan utilizes the services of a carrier for high volume, multipledestination fax transactions, and this Application may seek the recovery of those costs. 15. In accordance with the factors enumerated in section 330 of the Bankruptcy Code, the amounts requested for compensation and expense reimbursement are fair and reasonable given: (a) the complexity of this case; (b) the time expended; (c) the nature and extent of the services rendered; (d) the value of such services; and (e) the costs of comparable services in non-bankruptcy cases. 16. Olshan has reviewed the requirements of Local Rule 2016-2, and this Application and the Exhibits attached hereto comply with Local Rule 2016-2. 6
Case 16-11599-MFW Doc 378 Filed 12/20/16 Page 11 of 13 17. A copy of this Application has been sent to: (i) the Debtor, SynCardia Systems, Inc., 1992 E Silverlake Rd, Tucson, AZ 85713; (ii) counsel to the Debtor, (a) Olshan Frome Wolosky LLP, 1325 Avenue of the Americas, New York, New York 10019, Attn: Michael S. Fox and Jonathan Koevary, and (b) Young Conaway Stargatt & Taylor, LLP, Attn: Justin Rucki; (iii) counsel for the DIP Lenders, Landis Rath & Cobb LLP, 919 N. Market Street, Suite 1800, Wilmington, Delaware 19801, Attn: Adam G. Landis and Matthew B. McGuire; (iv) counsel for SWK, Holland & Knight LLP; 200 Crescent Court, Suite 1600, Dallas, Texas, 75201 Attn: Ryan Magee, Esq.; (v) counsel to the Committee, Arent Fox LLP, 1675 Broadway Avenue, New York, NY 10019 (Attn: George P. Angelich and Robert M. Hirsh,), and Shaw Fishman Glantz & Towbin, LLC, 919 N. Market Street, Suite 600, Wilmington, DE 19801 (Attn: Thomas M. Horan); and (vi) the Office of the United States Trustee for the District of Delaware (the U.S. Trustee ), 844 North King Street, Room 2207, Wilmington, Delaware 19801, Attn: Juliet Sarkessian, and notice of this Application has been sent to all parties required to receive notice pursuant to the Order. 7
Case 16-11599-MFW Doc 378 Filed 12/20/16 Page 12 of 13 WHEREFORE, Olshan respectfully requests (a) approval on an interim basis for the Fee Amount of $12,966.00 and payment of 80% of such in the amount of $10,372.80 on account of reasonable and necessary professional services rendered to the; and (b) reimbursement of actual and necessary costs and expenses in the amount of $0.00.during this Application Period. Dated: December 20, 2016 OLSHAN FROME WOLOSKY LLP /s/michael S. Fox Michael S. Fox, Esquire Jonathan T. Koevary, Esquire 1325 Avenue of the Americas New York, New York 10019 (212) 451-2300 Counsel to the Debtor 8
Case 16-11599-MFW Doc 378 Filed 12/20/16 Page 13 of 13 DECLARATION OF MICHAEL S. FOX Michael S. Fox, Esquire, after being duly sworn according to law, hereby deposes and says: 1. I am a Partner in the applicant firm, Olshan Frome Wolosky LLP ( Olshan ). 2. I have personally performed many of the legal services rendered by Olshan as counsel to the Debtor, and am familiar with all other work performed on behalf of the Debtor by the lawyers and paraprofessionals at Olshan. 3. The facts set forth in the foregoing Fifth Monthly Fee Application of Olshan covering the month of November, 2016, are true and correct to the best of my knowledge, information and belief. 4. Pursuant to 28 U.S.C. 1746, I certify under penalty of perjury that the foregoing is true and correct. Dated: December 20, 2016 /s/ Michael S. Fox MICHAEL S. FOX 9
Case 16-11599-MFW Doc 378-1 Filed 12/20/16 Page 1 of 2 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: TAH Windown, Inc., 1 Chapter 11 Case No. 16-11599 (MFW) Debtor. Hearing Date: N/A Objections Due: January 9, 2017 at 4:00 p.m. (ET) NOTICE OF APPLICATION TO: (I) THE DEBTOR; (II) THE UNITED STATES TRUSTEE FOR THE DISTRICT OF DELAWARE; (III) COUNSEL TO THE DIP LENDERS; (IV) COUNSEL TO THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS; AND (V) COUNSEL TO SWK HOLDINGS CORPORATION. Olshan Frome Wolosky LLP, co-counsel to the above-captioned debtor and debtor in possession (the Debtor ), has filed its Fifth Monthly Fee Application of Olshan Frome Wolosky LLP for Compensation for Services Rendered and Reimbursement of Expenses as Counsel to the Debtor for the Period from November 1, 2016 through November 30, 2016 (the Application ). The Application seeks fees in the amount of $12,966.00 and expenses in the amount of $0.00. Objections, if any, to the relief requested in the Application must be filed with the United States Bankruptcy Court for the District of Delaware, 824 N. Market Street, 3rd Floor, Wilmington, Delaware 19801 on or before January 9, 2017 at 4:00 p.m. (ET). At the same time, you must serve a copy of any objection upon the following parties so as to be received no later than 4:00 p.m. (ET) on January 9, 2017: (i) the Debtor, TAH Windown, Inc., 1992 E Silverlake Rd, Tucson, Arizona 85713; (ii) counsel to the Debtor, (a) Olshan Frome Wolosky LLP, 1325 Avenue of the Americas, New York, New York 10019, Attn: Michael S. Fox, Esq. and Jonathan Koevary, Esq., and (b) Young Conaway Stargatt & Taylor, LLP, Rodney Square, 1000 North King Street, Wilmington, Delaware 19801, Attn: Justin H. Rucki, Esq.; (iii) counsel to the DIP Lenders, Landis Rath & Cobb LLP, 919 N. Market Street, Suite 1800, Wilmington, Delaware 19801, Attn: Adam G. Landis, Esq. and Matthew B. McGuire, Esq.; (iv) counsel to SWK Holdings Corporation, Holland & Knight LLP, 200 Crescent Court, Suite 1600, Dallas, Texas 75201, Attn: Ryan Magee, Esq.; (v) counsel to the Official Committee of Unsecured Creditors, (a) Arent Fox LLP, 1675 Broadway, New York, New York 10019, Attn: George P. Angelich, Esq. and Robert M. Hirsh, Esq., and (b) Shaw Fishman Glantz & Towbin, LLC, 919 N. Market Street, Suite 600, 1 The Debtor in this case (with the last four digits of its taxpayer ID no. in parenthesis): TAH Windown, Inc., f/k/a SynCardia Systems, Inc. (1044). The Debtor s corporate address is: 1992 E. Silverlake Road, Tucson, Arizona 85713. 01:21340325.1
Case 16-11599-MFW Doc 378-1 Filed 12/20/16 Page 2 of 2 Wilmington, Delaware 19801, Attn: Thomas M. Horan, Esq.; and (vi) the Office of the United States Trustee for the District of Delaware, J. Caleb Boggs Federal Building, 844 North King Street, Suite 2207, Lockbox 35, Wilmington, Delaware 19801, Attn: Juliet Sarkessian, Esq. PLEASE TAKE FURTHER NOTICE THAT, PURSUANT TO THE ORDER, PURSUANT TO SECTIONS 105(a) AND 331 OF THE BANKRUPTCY CODE, BANKRUPTCY RULE 2016 AND LOCAL RULE 2016-2, ESTABLISHING PROCEDURES FOR INTERIM COMPENSATION AND REIMBURSEMENT OF EXPENSES OF PROFESSIONALS [D.I. 144], IF NO OBJECTIONS ARE FILED AND SERVED IN ACCORDANCE WITH THE ABOVE PROCEDURE, THE DEBTOR WILL BE AUTHORIZED TO PAY 80% OF REQUESTED FEES AND 100% OF REQUESTED EXPENSES WITHOUT FURTHER COURT ORDER. ONLY IF AN OBJECTION IS PROPERLY AND TIMELY FILED IN ACCORDANCE WITH THE ABOVE PROCEDURE, WILL A HEARING ON THE APPLICATION BE HELD. Dated: Wilmington, Delaware December 20, 2016 YOUNG CONAWAY STARGATT & TAYLOR, LLP /s/ Justin H. Rucki Robert S. Brady (No. 2847) Sean T. Greecher (No. 4484) Justin H. Rucki (No. 5304) Norah Roth-Moore (No. 6125) Rodney Square 1000 North King Street Wilmington, Delaware 19801 Telephone: (302) 571-6600 Facsimile: (302) 571-1253 - and - Michael S. Fox, Esquire Jonathan H. Deblinger, Esquire Jonathan T. Koevary, Esquire OLSHAN FROME WOLOSKY LLP 1325 Avenue of the Americas New York, New York 10019 Telephone: (212) 451-2300 Facsimile: (212) 451-2222 Counsel to the Debtor and Debtor in Possession 01:21340325.1
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