Thomas E Lauria Robin Phelan State Bar No. 11998025 State Bar No. 15903000 WHITE & CASE LLP Judith Elkin Wachovia Financial Center State Bar No. 06522200 200 South Biscayne Blvd. HAYNES AND BOONE, LLP Miami, FL 33131 901 Main Street Telephone: (305) 371-2700 Suite 3100 Facsimile: (305) 358-5744 Dallas, TX 75202 Telephone: (214) 651-5000 Facsimile: (214) 651-5940 PROPOSED ATTORNEYS FOR THE DEBTORS AND DEBTORS-IN-POSSESSION IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION ) In re ) Chapter 11 Case ) MIRANT CORPORATION, et al., ) Case No. 03-46590-DML-11 ) Jointly Administered Debtors. ) ) Hearing Date and Time: To Be Set MOTION OF THE DEBTORS PURSUANT TO SECTIONS 327 AND 328 OF THE BANKRUPTCY CODE FOR AUTHORIZATION TO EMPLOY PROFESSIONALS USED IN THE ORDINARY COURSE OF BUSINESS TO THE HONORABLE UNITED STATES BANKRUPTCY JUDGE: Mirant Corporation ( Mirant ) and its affiliated debtors (collectively, the Debtors ), as debtors-in-possession, pursuant to 11 U.S.C. 327 and 328, file this motion for entry of an order authorizing the Debtors to employ professionals used in the ordinary course of business (the Motion ), and respectfully represent as follows: JURISDICTION AND VENUE 1. This Court has jurisdiction to consider this matter pursuant to 28 U.S.C. 157 and 1334. This is a core proceeding pursuant to 28 U.S.C. 157(b). Venue is proper before this Court pursuant to 28 U.S.C. 1408 and 1409. MIAMI 400019 v1 (2K) -2-
PROCEDURAL BACKGROUND 2. The Cases. On July 14 and 15, 2003 (the Petition Dates ), Mirant Corporation and seventy-four of its affiliates filed voluntary petitions in this Court for relief under chapter 11 of title 11 of the United States Code (the Bankruptcy Code ). The Debtors continue to manage and operate their businesses as debtors-in-possession pursuant to sections 1107 and 1108 of the Bankruptcy Code. 1 3. Joint Administration. The Court has ordered the joint administration of the bankruptcy estates of the Debtors. 4. The Creditors Committee. No creditors committee has yet been appointed in these cases by the United States Trustee. Further, no trustee or examiner has been requested or appointed in any of the Debtors chapter 11 cases. EMPLOYMENT OF ORDINARY COURSE PROFESSIONALS SHOULD BE AUTHORIZED 5. The Debtors seek authorization, pursuant to sections 327 and 328 of the Bankruptcy Code, to retain professionals utilized by the Debtors in the ordinary course of business as of the Petition Date and thereafter (the Ordinary Course Professionals ). Exhibit "A" annexed hereto contains a list of the Ordinary Course Professionals as of the Petition Date. 6. The Debtors seek to continue to employ the Ordinary Course Professionals to render services to their estates similar to those services rendered prior to the Petition Date. These services include legal services with regard to specialized areas of the law, certain 1 Concurrently, Mirant caused two of its Canadian subsidiaries, Mirant Canada Energy Marketing, Ltd and Mirant Canada Energy Marketing Investments, Inc. (collectively, the Canadian Debtors ) to commence plenary insolvency proceedings (the Canadian Proceedings ) in the Court of Queen s Bench of Alberta Judicial District of Calgary (the Canadian Court ) pursuant to the Companies Creditors Arrangement Act (the CCAA ). The Canadian Debtors are subject to the sole and exclusive jurisdiction of the Canadian Court. MIAMI 400019 v1 (2K) -3-
accounting services, environmental and engineering consulting services and related services, which are necessary to the day-to-day continuation of the Debtors' operations and are unrelated to the administration of these chapter 11 cases. 7. The Debtors submit that, in light of the additional cost associated with the preparation of employment applications for professionals who will receive relatively small fees and the substantial number of Ordinary Course Professionals, it is impractical and cost inefficient for the Debtors to submit individual applications and proposed retention orders for each professional. Accordingly, the Debtors request that this Court dispense with the requirement of individual employment applications and retention orders with respect to each Ordinary Course Professional, and that each professional be retained from time to time as of the Petition Date. 8. The Debtors propose that they be permitted to pay each Ordinary Course Professional, without a prior application to the Court by such professional, the full amount of the fees and disbursements billed, upon the submission to and approval by the Debtors of an appropriate invoice setting forth in reasonable detail the nature of the services rendered and disbursements actually incurred and calculated in accordance with such Ordinary Course Professional s standard billing practices (without prejudice to the Debtors right to dispute any such invoices); provided, however, that if any Ordinary Course Professional s fees and disbursements exceed a total of $50,000 per month, then the payments to such Ordinary Course Professional for such excess amounts shall be subject to the prior approval of the Court in accordance with sections 330 and 331 of the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), the Local Rules and Orders of this Court and the Fee Guidelines promulgated by the Executive Office of the United States Trustee. MIAMI 400019 v1 (2K) -4-
9. Although certain of the Ordinary Course Professionals may hold unsecured claims against the Debtors in respect of prepetition services rendered to the Debtors, the Debtors do not believe that any of the Ordinary Course Professionals have an interest materially adverse to the Debtors, their creditors or other parties in interest that should preclude such Ordinary Course Professional from continuing to represent the Debtors. 10. The Debtors reserve the right to retain additional Ordinary Course Professionals from time to time during these cases, as the need arises. The Debtors propose to file a list or lists of such additional professionals with the Court and to serve same on the United States Trustee and the attorneys for any statutory committees appointed by the Court. The Debtors further propose that if no objections to any such supplemental list are filed within ten (10) days after service thereof, the list would be deemed approved by the Court without the need for a hearing. 11. The proposed ordinary course retention and payment procedures set forth herein will not apply to those Ordinary Course Professionals for whom the Debtors file separate applications for approval of employment. 12. The proposed employment of the Ordinary Course Professionals and the payment of compensation on the basis set forth above is in the best interests of the Debtors estates and their creditors. Retention and payment plans similar to that proposed herein have been approved and utilized in many chapter 11 cases. See, e.g., In re Worldcom, Inc., Case No. 02-13533 (Bankr. S.D.N.Y. Sept. 4, 2002) (Gonzales, J.) (Order Pursuant to Sections 105(a), 327, 328 and 330 of the Bankruptcy Code Authorizing the Debtors to Employ Professionals Utilized in the Ordinary Course of Business) (approving similar procedures and establishing $100,000 monthly cap); In re Enron Corp., Case No. 01-16034 (Bankr. S.D.N.Y Feb. 22, 2002) MIAMI 400019 v1 (2K) -5-
(Gonzales, J.) (Order Pursuant to Section 327 of the Bankruptcy Code Authorizing Nunc Pro Tunc Employment of Professionals Utilized in the Ordinary Course of Business) (establishing $50,000 monthly cap); In re Washington Group Int'l, Inc., Case No. BK-N-01-31267 (Bankr. D. Nev. May 23, 2001) (Zive, J.) (Amended Order Authorizing Retention of Professionals Utilized by Debtors in the Ordinary Course of Business) (establishing $50,000 monthly cap). The relief requested herein will save the estates the expense of separately applying for the employment of each professional. Furthermore, relieving the Ordinary Course Professionals of the requirement of preparing and prosecuting fee applications will save the estates the additional professional fees and expenses that would be generated thereby. Likewise, the procedure outlined above will spare the Court and the United States Trustee from having to consider numerous fee applications involving relatively modest amounts of fees and expenses. CONCLUSION WHEREFORE, the Debtors respectfully request entry of an order authorizing the Ordinary Course Professionals to receive monthly and interim compensation and reimbursement of expenses in accordance with the procedures described herein, and granting such other and further relief as is just and proper. MIAMI 400019 v1 (2K) -6-
Dated: Fort Worth, Texas July 18, 2003 HAYNES AND BOONE, LLP 901 Main Street Suite 3100 Dallas, TX 75202 (214) 651-5000 By /s/ Ian Peck Robin Phelan State Bar No. 15903000 Judith Elkin State Bar No. 06522200 Ian Peck State Bar No. 24013306 -and- Thomas E Lauria State Bar No. 11998025 Michelle C. Campbell State Bar No. 24001828 WHITE & CASE LLP Wachovia Financial Center 200 South Biscayne Blvd. Miami, Florida 33131 (305) 371-2700 PROPOSED ATTORNEYS FOR THE DEBTORS AND DEBTORS-IN-POSSESSION CERTIFICATE OF SERVICE The undersigned hereby certifies that he has authorized BSI as service agent to cause to serve a true and correct copy of the foregoing Application and Affidavit upon all parties on the attached service list via United States first class mail, postage prepaid, on the 18 th day of July, 2003 in accordance with the Federal Rules of Bankruptcy Procedure. /s/ Ian T. Peck MIAMI 400019 v1 (2K) -7-