Case Document 2561 Filed in TXSB on 09/19/13 Page 1 of 14 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

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1 Case Document 2561 Filed in TXSB on 09/19/13 Page 1 of 14 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION IN RE: ATP OIL & GAS CORPORATION, CASE NO DEBTOR. CHAPTER 11 KEN-VAC CORPORATION, PLAINTIFF, VS. ADVERSARY NO. ATP OIL & GAS CORPORATION, CREDIT SUISSE AG, CAYMEN ISLANDS BRANCH AND THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., DEFENDANTS. KEN-VAC CORPORATION S ORIGINAL COMPLAINT FOR DECLARATORY JUDGMENT REGARDING VALIDITY, PRIORITY, AND EXTENT OF LIENS UNDER BANKRUPTCY RULE 7001(2) AND TO ENFORCE LIENS TO THE HONORABLE UNITED STATES BANKRUPTCY JUDGE: Ken-Vac Corporation ( KVC ) files this Original Complaint ( Complaint ) seeking a declaratory judgment pursuant to 28 U.S.C. 2201, et seq and Bankruptcy Rule 7001(2) regarding the validity, priority, extent and amount of its statutory liens and secured claims relating to the subject lease and subject interests (defined below) against ATP Oil & Gas Corporation, the debtor and debtor-in-possession in the above-captioned bankruptcy case ( ATP or Debtor ); Credit Suisse AG, Cayman Islands Branch ( Credit Suisse ), in its capacity as (i) administrative agent and collateral agent under that certain Act of Mortgage, Security Agreement, Financing Statement, Fixture Filing and Assignment of Production dated effective as of June 18, 2010 and (ii) DIP agent and collateral agent under the debtor-in- 1

2 Case Document 2561 Filed in TXSB on 09/19/13 Page 2 of 14 possession financing facility; and The Bank of New York Mellon Trust Company, N.A. ( BNY ), in its capacity as trustee and collateral agent under that certain Act of Second Lien Mortgage, a Security Agreement, Financing Statement, Fixture Filing and Assignment of Production dated effective as of April 23, PARTIES 1. Plaintiff, Ken-Vac Corporation, is a Louisiana corporation in good standing and with its principal place of business in Lafayette, Louisiana and is a creditor of the Debtor in the above-captioned bankruptcy case (the Bankruptcy Case ). 2. Defendant ATP is a Texas corporation with its principal place of business in Houston, Harris County, Texas and is the Debtor in the Bankruptcy Case. ATP may be served with process by mailing a copy of the summons and Complaint to the address on the petition: 4600 Post Oak Place, Suite 100, Houston, Texas 77027, Attn: Albert L. Reese, Jr. Pursuant to Federal Rule of Bankruptcy Procedure 7004(g), service is also being made on the following counsel of record for the Debtor: Mayer Brown LLP, Attn: Charles S. Kelley, 700 Louisiana Street, Suite 3400, Houston, Texas Defendant Credit Suisse is, upon information and belief, a branch of a foreign bank, and may be served in accordance with Federal Rule of Bankruptcy Procedure 7004(b)(3) by mailing a copy of the summons and Complaint to Credit Suisse AG, Cayman Islands Branch, One Madison Avenue, 2nd Floor, New York, NY 10010, Attention: Loan Operations Boutique Management, Primary Contact: Nirmala Durgana. 4. Defendant BNY is a national banking association that may be served with process in accordance with Federal Rule of Bankruptcy Procedure 7004(h) by mailing a copy of the summons and Complaint to CT Corporation System, 350 N. St. Paul Street, Suite 2900, Dallas, 2

3 Case Document 2561 Filed in TXSB on 09/19/13 Page 3 of 14 TX ; or by mailing a copy of the summons and Complaint to its attorneys Charles A. Beckham, Jr., Haynes and Boone LLP, 1221 McKinney, Suite 2100, Houston, Texas and Richard B. Levin, Cravath, Swaine & Moore LLP, 825 8th Avenue, New York, NY JURISDICTION AND VENUE 5. The Court has jurisdiction over this action pursuant to 28 U.S.C. 157, 1334 and 2201, et seq. 6. This is a core proceeding within the meaning of 28 U.S.C. 157(b)(2)(A) and (K). 7. Venue is proper pursuant to 28 U.S.C as the chapter 11 case to which this adversary proceeding relates is pending in this district. 8. This Complaint is brought pursuant to Rules 3012 and 7001 of the Federal Rules of Bankruptcy Procedure and pursuant to 11 U.S.C. 506 and 28 U.S.C Pursuant to Local Bankruptcy Rule , KVC does not consent to the entry of final orders or judgment by the Bankruptcy Judge if it is determined that the Bankruptcy Judge, absent consent of the parties, cannot enter final orders or judgment consistent with Article III of the United States Constitution. PROCEDURAL AND FACTUAL BACKGROUND A. Bankruptcy of the Debtor 10. On August 17, 2012 (the Petition Date ), the Debtor filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code (the Bankruptcy Code ) in the United States Bankruptcy Court for the Southern District of Texas, Houston Division (the Court ). 3

4 Case Document 2561 Filed in TXSB on 09/19/13 Page 4 of 14 B. KVC s Claims Against the Debtor and Liens and Privileges Against the Subject Interests 11. On or before July 4, 2009, KVC began providing logistical services to the Debtor in connection with the drilling or operating certain wells located within certain federal oil and gas lease blocks within the Outer Continental Shelf Gulf of Mexico (collectively, the OCS Leases ). 12. Specifically, KVC provided services, including movement of personnel and materials, for the following wells on the OCS Leases operated from the Titan platform: a) Mississippi Canyon Block #941, OCS Lease No. G16661, Well Nos. A-2, A-3 and 4; and b) Mississippi Canyon Block #942, OCS Lease No. G24130, Well Nos. 2 and BP-3. See Notice of Perfection of Section 546 Interests in Property of the Estate filed by KVC in the Bankruptcy Case [Dkt. # 473] and exhibits attached thereto (relating to Mississippi Canyon Block #941, OCS Lease No. G16661)(referred to as the Subject Lease ). 13. Pursuant to La. R.S. 9:4863(A), KVC s liens and privileges extend to the following described property (collectively, the Subject Interests ): a. the operating or leasehold interest of the operator of the Subject Lease, and the operating interest of any participating lessee(s) therein, together with such parties interest in any (i) well(s), building, tank, leasehold pipeline, platforms, machinery, flowlines, gathering lines, and other related equipment and other construction or facility located thereon, (ii) all movables used in the operation of the well attached thereto or located on the Subject Leases and/or well site, including, but not limited to, monitoring, measuring, metering and control equipment, appurtenances, appliances, equipment and other 4

5 Case Document 2561 Filed in TXSB on 09/19/13 Page 5 of 14 structures, and (iii) tract of land, servitude or other lease described in La. R.S. 9:4861(12)(c) covering the Subject Lease; b. a drilling or other rig located at the Subject Lease, if the rig is owned by the operator of the relevant lease, or the party with whom KVC contracted; c. all hydrocarbons produced from the operating interest of the operator of the Subject Lease, and the operating interest of any participating lessee(s) therein; and d. the proceeds received by, and the obligations owed to, any lessee or operating interest in the Subject Lease from the disposition of hydrocarbons subject to the privilege. 14. Pursuant to La. R.S. 9:4862(B), KVC is afforded a lien and privilege on the Subject Interests for the amount due for the labor, supplies, and services, in principal and interest, and for the cost of preparing and recording the privilege, or any notice of lis pendens and reasonable attorney s fees not to exceed ten percent (10%). 15. In accordance with La. R.S. 9:4865(A)(1), KVC timely preserved the efficacy of its liens and privileges as to third parties by recording Statements of Privilege and Notice of Claim of Lien in the relevant jurisdictions (collectively, the Lien Affidavits ). 16. Specifically, KVC recorded the Lien Affidavits in Plaquemines, LaFourche and Terrebonne Parishes, Louisiana and with the Department of Interior, Bureau of Ocean Management and Energy ( BOEM ), as follows: Recordation Info: File No , Book 602, Page 105, Plaquemines Parish, September 20, 2012 Recordation Info: Inst. No , Book 1568, Page 217, LaFourche Parish, September 20, 2012 Recordation Info: File No , Book 2494, Page 325, Terrebonne Parish, September 20,

6 Case Document 2561 Filed in TXSB on 09/19/13 Page 6 of 14 Recordation Info: BOEM, September 20, 2012 Principal Amount: $236, Thereafter, and pursuant to La. R.S. 9:4865(B) and Section 546 of the Bankruptcy Code, KVC timely perfected and maintained its liens and privileges as to the Subject Interests by filing its Notice of Perfection of Section 546 Interests in Property of the Estate ( Notice of Perfection ) [Dkt. # 473]. KVC s Lien Affidavits are attached as Exhibits A - D to its Notice of Perfection and incorporated herein by reference. 18. From on or before July 4, 2009 until August 13, 2012, KVC provided services on the Subject Lease. 19. From on or before July 4, 2009 until August 13, 2012, there was never a period of ninety (90) days or more between services by KVC to ATP. 20. ATP failed to pay KVC for services that it provided on the Subject Lease from March 12, 2012 until August 13, 2012 in the aggregate principal amount of $236, C. Credit Suisse Mortgage 21. On or about June 18, 2010, the Debtor and Credit Suisse executed an Act of Mortgage, Security Agreement, Financing Statement, Fixture Filing and Assignment of Production ( Credit Suisse Mortgage ). 22. The Credit Suisse Mortgage was recorded in the mortgage records for Plaquemines Parish, State of Louisiana on June 21, Also, on June 21, 2010, the Credit Suisse Mortgage was recorded with BOEM. D. BNY Mortgage 24. On or about April 23, 2010, the Debtor and BNY executed an Act of Second Lien Mortgage, Security Agreement, Financing Statement, Fixture Filing and Assignment of 6

7 Case Document 2561 Filed in TXSB on 09/19/13 Page 7 of 14 Production ( BNY Mortgage ). 25. The BNY Mortgage was recorded in the mortgage records for Plaquemines Parish, State of Louisiana on May 3, 2010 (also, March 30, 2011). 26. Pursuant to an intercreditor agreement by and between, inter alia, ATP, BNY and Credit Suisse, the liens and mortgages granted under the BNY Mortgage are subordinate to the liens and mortgages granted under the Credit Suisse Mortgage. E. DIP Financing and DIP Credit Agreement 27. As part of its first-day motions, the Debtor filed an Emergency Motion for Entry of Interim and Final Orders Pursuant to Bankruptcy Code Sections 105, 107(b), 361, 362, 363, 364 and 507 (1) Approving Postpetition Financing, (2) Authorizing Use of Cash Collateral, (3) Granting Liens and Providing Superpriority Administrative Expense Status, (4) Granting Adequate Protection, (5) Modifying Automatic Stay, (6) Authorizing Debtor to File the Fee Letter Under Seal and (7) Scheduling a Final Hearing (the DIP Motion ) [Dkt. No. 21]. 28. This Court entered the Interim Order on the DIP Motion August 22, 2012 [Dkt. No. 126], which was supplemented by the Supplemental Order entered on the same date [Dkt. No. 128]. 29. On September 20, 2012, following the final hearing on the DIP Motion during which the Debtor advised of the need to amend the DIP Credit Agreement to modify certain covenants, the Court entered its Final Order [Dkt. No. 440] approving the DIP Motion and authorizing the Debtor to enter into Amendment No. 1 to the DIP Credit Agreement. 30. Following the subsequent failure of the Debtor to satisfy certain conditions under the DIP Credit Agreement, as amended, the Debtor filed its Motion For Entry of An Order Pursuant to Bankruptcy Code Sections 105, 361, 362, 363, 364 and 507 Authorizing the Debtor 7

8 Case Document 2561 Filed in TXSB on 09/19/13 Page 8 of 14 to Enter Into Amendment No. 2 to the DIP Credit Agreement [Dkt. No. 910]. 31. The Court approved and authorized the Debtor to enter into the Amendment No. 2 to the DIP Credit Agreement on December 6, 2012 [Dkt. No. 986]. 32. On February 1, 2013, as a result of further covenant defaults under the DIP Credit Agreement, as amended, including the failure to achieve production of the MC 942-A-3 Sand Well by January 2, 2013 which resulted in the termination of approximately $50 million in DIP loan availability under Amendment No. 2 the Debtor filed its Emergency Motion for Entry of an Order Authorizing the Debtor to Enter Into Amendment No. 3 to the DIP Credit Agreement [Dkt. No. 1311]. 33. After several Court hearings and a number of modifications, on February 21, 2013, the Court approved and authorized the Debtor on a final basis to enter into Amendment No. 3 to the DIP Credit Agreement [Dkt. No. 1489]. 34. The original DIP Credit Agreement provided for funding for a roll-up of the prepetition first lien debt under the Credit Agreement of approximately $367 million and additional funding of $250 million which was to be used for two capital expenditure projects Clipper and Gomez No. 9 and for general and administrative (G&A) and bankruptcy administration expenses. During the course of the bankruptcy case, the actual amounts for the Clipper Project, G&A and bankruptcy administration expenses have far exceeded the budgeted and projected costs. As a result, among other things, the Gomez No. 9 well was never drilled and ultimately the Gomez Properties were shut-in. 35. As of May 2013, the Debtor had drawn approximately $700 million under the DIP facility, as amended, inclusive of the roll-up of pre-petition indebtedness of approximately $367 million. Further, upon information and belief, the total cost to the estate of the DIP facility is in 8

9 Case Document 2561 Filed in TXSB on 09/19/13 Page 9 of 14 excess of $140 million, not including certain non-public fees and charges. 36. In connection with each debtor-in-possession financing request, statutory lien creditors asserted objections to, inter alia, preserve the rank and priority of their respective statutory liens and privileges vis-à-vis the DIP Liens (as defined in the Interim Order) that were granted in favor of the DIP Lenders. 37. As a result, each of the Orders entered by the Court (collectively, the DIP Financing Orders ) with respect to debtor-in-possession financing (the DIP Financing ), included provisions which, inter alia, specifically preserved the rank and priority of statutory liens that (a) were valid, enforceable and non-avoidable against property that did not constitute Prepetition Collateral (as defined in the Interim Order) (the Senior Statutory Liens ); or (b) were valid, enforceable, non-avoidable and senior in priority to the Prepetition First Liens (as defined in the Interim Order) encumbering the Prepetition Collateral (the Senior Prior Liens ) (as defined in the Interim Order). 1 F. Sale Motion 38. On January 22, 2013, the Debtor filed its Emergency Motion Pursuant to 11 U.S.C. 105(a), 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 the Debtors Deepwater Property Assets; and (D) Granting Related Relief; and (II) (A) Approving the Sale or Sales of Substantially all of the Debtors Deepwater Property 1 See Dkt. No , at p. 23; Dkt. No. 440, at p ; Dkt. No. 986, at p. 2; Dkt. No. 1418, at p. 2; Dkt. No. 1489, at p. 2. 9

10 Case Document 2561 Filed in TXSB on 09/19/13 Page 10 of 14 Assets Free and Clear of Claims and Liens and (B) Approving the Assumption and Assignment of Contracts and Leases, by which it sought to market and sell the Debtor s Deepwater Property Assets, including the Subject Lease [Dkt. # 1256] ( Sale Motion ). 39. Following a hearing on the Sale Motion on February 14, 2013, the Court entered its Order (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 [Dkt. # 1419] (the Sale Procedures Order ). 40. The Bidding Procedures approved by the Court and attached to the Sale Procedures Order as Exhibit 1 specifically provided that, Notwithstanding the foregoing, any credit bid by the DIP Lenders or the Prepetition Second Lien Trustee that is the Successful Bid with respect to all or a portion of the Deepwater Assets shall result in a sale of those assets that is subject to (i) any Senior Statutory Liens (as defined in the Final DIP Order entered by the Court [Dkt. 440] and (ii) any Senior Prior Liens (as defined in the Final DIP Order entered by the Court [Dkt. 440]) on the assets purchased to the extent that the claims securing such Senior Statutory Liens or Senior Prior Liens are not paid in cash in full upon closing of the sale On May 7, 2013, the Debtor filed its Notice of Debtor s Designation of Successful Bid [Dkt. # 1816] designating the credit bid submitted by Credit Suisse AG, as Administrative Agent and Collateral Agent (the DIP Agent ), as the Successful Bid (as defined in the Bidding Procedures). The Debtor did not designate a Backup Successful Bidder. 42. On June 20, 2013, the Debtor filed an executed Asset Purchase Agreement ( APA ) between the Debtor and the DIP Agent. 2 See Exhibit 1 to Sales Procedures Order, at p

11 Case Document 2561 Filed in TXSB on 09/19/13 Page 11 of The APA provides, inter alia, that the DIP Agent will pay $55,000, to satisfy legitimate Liens on Assets that are ranked senior to the DIP Claims See APA, Section 3.01 at p. 21. DIP Claims are defined as (i) the aggregate principal amount of obligations outstanding under the DIP Credit Agreement, together with accrued interest and any other Claim with respect to the DIP Credit Agreement, (ii) the aggregate principal amount of obligations outstanding under the Prepetition Hedge Obligations that rank pari passu with the DIP Credit Agreement and (iii) any Liens securing the foregoing. Id., Section 1.01 at p. 6. The Prepetition Hedge Obligations include the Credit Suisse Mortgage. Id., Section 1.01 at p The Credit Suisse Mortgage and the BNY Mortgage are part of the Debt Facilities to be assumed by the DIP Lenders under the APA. Id., Sections 1.01 and 10.01(h) at pp. 5 and 46. G. Sale Order 45. On July 9, 2013, the Court entered its Interim Order (A) Approving the Sale of Certain of the Debtor s Assets Free and Clear of Claims and Liens and (B) Approving the Assumption and Assignment of Contracts and Leases ( Interim Sale Order ), with a proposed form of Final Order ( Final Sale Order ) attached [Dkt. # 2224]. The final hearing on approval of the sale and the proposed purchaser to be designated by the DIP Agent and Required DIP Lenders, as applicable, is anticipated to occur in October, in extenso. CAUSES OF ACTION COUNT I (Determination of Existence, Validity, Amount and Priority of KVC s liens) 46. KVC incorporates each factual allegation set forth above as though restated herein 11

12 Case Document 2561 Filed in TXSB on 09/19/13 Page 12 of KVC has valid liens and privileges on the Subject Interests under the Louisiana Oil Well Lien Act, La R.S. 9:4861, et seq. ( LOWLA ) securing all amounts owed, reasonable attorneys fees not to exceed 10%, and the cost of preparing and filing the Lien Affidavits and Notice of Lis Pendens. Further, KVC s statutory privilege and lien is a Senior Lien under the terms of the DIP Financing Orders and proposed Final Sale Order. 48. KVC seeks a determination of the amount owed and the existence, validity, and priority of its liens and privileges and allowed secured claim, pursuant to Rule 3012 of the Federal Rules of Bankruptcy Procedure, 11 U.S.C. 506 and LOWLA. 49. KVC seeks a judicial determination that to the extent the Credit Suisse Mortgage and the BNY Mortgage are valid they are junior and subordinate in priority to KVC s LOWLA liens and privileges. 50. KVC seeks a judicial determination that its statutory privilege is senior to the liens granted under the DIP Liens, the DIP Credit Agreement and DIP Financing Order. in extenso. COUNT II (Request for Declaratory Judgment) 51. KVC incorporates each factual allegation set forth above as though restated herein 52. As set forth above, a valid case or controversy exists at this time for this Court to declare the rights and remedies of KVC and the Defendants in this Adversary Proceeding. 53. For the reasons set forth above and pursuant to 28 U.S.C , upon approval of the APA by the Court, KVC requests that this Court declare KVC s LOWLA liens and privileges as valid and first priority liens and privileges on the Subject Interests and order payment of KVC s claim secured by the LOWLA liens and privileges in full pursuant to the 12

13 Case Document 2561 Filed in TXSB on 09/19/13 Page 13 of 14 terms of the APA. in extenso. COUNT III (Recovery of Attorneys Fees and Costs) 54. KVC incorporates each factual allegation set forth above as though restated herein 55. Pursuant to Section 506(b) of the Bankruptcy Code and the LOWLA, KVC seeks recovery of all reasonable attorneys fees and costs incurred in enforcing its statutory privilege and lien claim and underlying obligations related thereto in this proceeding. law; CONCLUSION WHEREFORE, the plaintiff, Ken-Vac Corporation prays: 1. That its Complaint be deemed good and sufficient and that it be filed according to 2. A summons be issued herein to Defendants compelling each to appear and respond to this Complaint or suffer a default; 3. For a judgment in favor of KVC and against ATP in the principal amount of $236,776.48, together with interest on said amount as provided by law, attorney s fees, the cost of preparing and filing the statement of privilege and notice of pendency of action, and all costs and expenses of this proceeding; 4. For a judgment holding that KVC has valid, properly and timely perfected, first priority LOWLA liens and privileges in the Subject Interests securing the sums provided above; 5. For judgment ordering and directing that KVC s claim secured by the LOWLA liens and privileges be paid in full upon approval of the APA by the Court in accordance with the terms thereof and the related orders of the Court; and 13

14 Case Document 2561 Filed in TXSB on 09/19/13 Page 14 of For judgment awarding such other and further relief to which it may be entitled in law and in equity. Dated: September 19, Respectfully submitted, /s/ Kevin M. Maraist Kevin M. Maraist State Bar No ANDERSON, LEHRMAN, BARRE & MARAIST, LLP Gaslight Square 1001 Third Street, Ste. 1 Corpus Christi, Texas (361) (361) Fax Attorneys for Ken-Vac Corporation 14

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