Pg 1 of 31 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------x : In re : Chapter 11 : TOISA LIMITED, et. al., : Case No. 17-10184 (SCC) : : Jointly Administered Debtors. : : ------------------------------------------------------x FIRST INTERIM APPLICATION OF ZOLFO COOPER, LLC, BANKRUPTCY CONSULTANTS AND SPECIAL FINANCIAL ADVISORS TO THE DEBTORS FOR ALLOWANCE OF INTERIM COMPENSATION FOR SERVICES RENDERED AND FOR REIMBURSEMENT OF EXPENSES FOR THE PERIOD JUNE 21, 2017 THROUGH AUGUST 31, 2017 Name of applicant: Zolfo Cooper, LLC Authorized to provide professional services to: Toisa Limited, et al., as Debtors and Debtors in Possession Date of retention: Nunc Pro Tunc to June 21, 2017 Period for which compensation and reimbursement is sought: Amount of compensation requested: June 21, 2017 through and including August 31, 2017 $1,112,402.75 Amount of expense reimbursement requested: $229,840.08 This is a: Monthly Interim Final This is a first application? Yes No
Pg 2 of 31 Schedule 1 Summary by Timekeeper of Hours, Rates and Fees for Services Rendered during the Application Period TOTAL HOURS TOTAL FEES PROFESSIONAL TITLE RATE (1) DURING PERIOD DURING PERIOD Jonathan Mitchell Senior Managing Director $1,035 104.7 $106,863.75 Jason Keyes Senior Director $810 485.8 $338,053.50 Elizabeth Kardos Counsel $565 3.2 $1,808.00 Kevin McCarty Manager $495 533.1 $225,918.00 Helen Zhang Associate $440 565.0 $216,524.00 Rahul Yenumula Associate $440 26.7 $11,748.00 John Katsigeorgis Associate $440 505.5 $200,640.00 Jarett Bienenstock Analyst $305 3.4 $1,037.00 Subtotal for Professionals 2,227.4 $1,102,592.25 Laurie Verry Paralegal $285 21.7 $6,184.50 Paul Fabsik Paralegal $245 14.8 $3,626.00 Subtotal for Paraprofessionals 36.5 $9,810.50 Total 2,263.9 $1,112,402.75 (1) Non-Working travel time rates are reduced by 50%. Average Billing Rate $491.37 2
Schedule 2 Pg 3 of 31 Summary by Task Category of Hours and Fees for the Application Period TASK CODE TASK CATEGORY TOTAL HOURS DURING PERIOD TOTAL FEES DURING PERIOD 1 Chapter 11 Process 156.4 $109,670.50 2 DIP Budget Process Management 0.0 $0.00 3 Cash Management 517.8 $250,026.50 4 Communication with Interested Parties 114.7 $77,105.50 5 U. S. Trustee / Court Reporting Requirements 1.9 $836.00 6 Business Plan Development Scenario Development 49.3 $39,518.50 7 Business Analysis 161.4 $75,100.00 8 Valuation 1.1 $1,048.50 9 Asset Dispositions, 363 Sales 0.0 $0.00 10 Accounting 502.3 $268,001.00 11 Plan, Disclosure Statement, Solicitation 56.6 $51,209.00 12 DIP Financing / Cash Collateral 23.8 $19,278.00 13 Business Operations 19.3 $10,805.50 14 Testimony 0.0 $0.00 15 Executory Contracts, Unexpired Leases, and Real Estate 7.1 $6,786.00 16 Claims Process 0.9 $729.00 17 Special Projects 0.0 $0.00 18 ZC Retention, Fee Applications, and Engagement Administration 113.3 $53,521.00 19 Avoidance Actions 0.0 $0.00 20 Travel (1) 538.0 $148,767.75 21 Executive Committee Updates 0.0 $0.00 Total 2,263.9 $1,112,402.75 (1) Non-Working travel time rates are reduced by 50% Average Billing Rate $491.37 3
Pg 4 of 31 Schedule 3 Summary of Expenses by Category for the Application Period Expense Category Total Expenses During Period Travel & Lodging $217,519.15 Meals $8,123.62 Telephone $3,314.51 Photocopies $1.40 Direct Charges $881.40 Total $229,840.08 4
Pg 5 of 31 Schedule 4 Summary of Fees and Expenses by Month for the Application Period Compensation Period Total Fees Total Expenses Total Requested Total Paid Unpaid Balance June/July 2017 $517,319.75 $118,080.95 $635,400.70 $531,936.75 $103,463.95 August 2017 $595,083.00 $111,759.13 $706,842.13 $0.00 $706,842.13 Total $1,112,402.75 $229,840.08 $1,342,242.83 $531,936.75 $810,306.08 5
Pg 6 of 31 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------x : In re : Chapter 11 : TOISA LIMITED, et al., : Case No. 17-10184 (SCC) : : Jointly Administered Debtors. : : ------------------------------------------------------x FIRST INTERIM APPLICATION OF ZOLFO COOPER, LLC, BANKRUPTCY CONSULTANTS AND SPECIAL FINANCIAL ADVISORS TO THE DEBTORS FOR ALLOWANCE OF INTERIM COMPENSATION FOR SERVICES RENDERED AND FOR REIMBURSEMENT OF EXPENSES FOR THE PERIOD JUNE 21, 2017 THROUGH AUGUST 31, 2017 Zolfo Cooper, LLC ( ZC or the Firm ), as bankruptcy consultant and financial advisor to Toisa Limited, et al. and its affiliated debtors and debtors-in-possession in these chapter 11 cases (collectively, the Debtors ), hereby submits this interim fee application (the Application ), pursuant to this Court s Order Establishing Procedures for Interim Compensation and Reimbursement of Expenses for Professionals, dated February 21, 2017 (the Interim Compensation Order ), 11 U.S.C. 330, Rule 2016 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), Rule 2016-1 of the Local Bankruptcy Rules for the Southern District of New York (the Local Rules ), and the Amended Guidelines for Fees and Disbursements for Professionals in the Southern District of New York, updated June 17, 2013 (the Local Guidelines ), seeking interim allowance of compensation for professional services rendered in the amount of $1,112,402.75 and for reimbursement of actual, reasonable, and necessary out-of-pocket expenses incurred in the amount of $229,840.08 during the period beginning June 21, 2017 through and including August 31, 2017 (the Application Period ), and in support thereof respectfully represents as follows:
Pg 7 of 31 I. PRELIMINARY STATEMENT 1. By this Application, ZC requests that this Court authorize the interim allowance during the Application Period in the total amount of $1,342,242.83, comprising (a) compensation of $1,112,402.75 for services rendered to the Debtors and (b) reimbursement of $229,840.08 in actual and necessary expenses incurred in connection with its rendering of professional services. 2. During the Application Period, ZC has received payment from the Debtors of 80% of its fees for the period from June 21, 2017 through July 31, 2017 in the amount of $476,066.40, and 100% of its expenses for the same time period in the amount of $111,759.13. II. BACKGROUND 3. On January 29, 2017 (the Petition Date ), each of the Debtors commenced their respective chapter 11 cases by filing voluntary petitions for relief under chapter 11 of the Bankruptcy Code. The Debtors are authorized to continue operating their businesses and managing their properties as debtors-in-possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code. III. ZOLFO COOPER S RETENTION 4. On June 21, 2017, the Debtors executed an engagement letter (the Engagement Letter ) setting forth the terms, conditions, compensation and scope of services to be provided by ZC, a copy of which is attached hereto as Exhibit A. 5. On July 20, 2017, the Debtors filed the Debtors Application for Entry of an Order Authorizing the Employment and Retention of Zolfo Cooper, LLC as Bankruptcy Consultants and Special Financial Advisors to the Debtors Nunc Pro Tunc to June 21, 2017 [ECF No. 249] (the Retention Application ). 6. On August 2, 2017, the Court entered the Order Authorizing the Debtors to Retain Zolfo Cooper, LLC as Bankruptcy Consultants and Special Financial Advisors to the 2
Pg 8 of 31 Debtors, Nunc Pro Tunc to June 21, 2017 [ECF No. 267] (the Retention Order ), a copy of which is attached hereto as Exhibit B. IV. JURISDICTION AND VENUE 7. This Court has jurisdiction to hear and determine this Application pursuant to 28 U.S.C. 157 and 1334. Venue is proper in this district pursuant to 28 U.S.C. 1408 and 1409. Sections 330 and 331 of the Bankruptcy Code and Bankruptcy Rule 2016 are the statutory predicates for the relief sought by this Application. V. BILLING PRACTICES 8. ZC hereby seeks compensation in accordance with its customary practices and in accordance with the applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, Local Rules, Interim Compensation Order, and Local Guidelines. 9. ZC charges for its professional services based on actual hours expended to perform its services at standard hourly rates established for each employee, which hourly rates are subject to adjustment semi-annually. It is the customary practice of the Firm to bill clients for travel time consistent with the guidelines of the jurisdiction. Therefore, ZC has applied a 50% discount rate to non-working travel time billed. ZC records time entries in six-minute increments. ZC s fees reflect economies resulting from the use of paraprofessional and support personnel to develop schedules and analyses, input computer data, perform research, work on fee applications, and other activities necessary to the efficient administration of this case. ZC does not include support services in the Firm s overhead for the purpose of establishing billing rates. Billing rates are generally representative of prevailing market rates, as awarded by other courts in similar circumstances, based on the customary compensation charged by comparably skilled practitioners in bankruptcy and non-bankruptcy engagements. 10. ZC charges for reasonably incurred, out-of-pocket expenses, including, but not limited to, costs of reproduction at the lesser of $0.10 per page or cost and other direct expenses. 3
Pg 9 of 31 Except in certain instances which may be listed in the expense detail attached hereto, all expenses are billed at actual cost, exclusive of amortization of the cost of any investment, equipment or capital outlay. 11. ZC maintains contemporaneous records of the time expended and out-of-pocket expenses incurred in support of its billings for services. VI. STAFFING APPROACH 12. I, Jonathan Mitchell, have over 30 years of diversified business experience providing both advisory services and interim management to a variety of clients. Most recently, I advised Total Terminals, International, LLC, as well as the lenders in eight separate container terminal restructurings. Additionally, I previously served as CRO to Sabine Oil & Gas Corporation, Dewey & LeBoeuf, LLP, LandAmerica Financial Group, Inc., and LandAmerica 1031 Exchange Services, Inc. I have also served as chairman of Entegra Power Group, which owns the two largest gas-fired merchant power plants in the United States. At Entegra, I led the company s refinancing, raising approximately $1.33 billion. I am responsible for the overall design of ZC s services and direction of the engagement team in this matter, and I have assigned ZC professionals with the requisite skill and experience levels to assist me on this engagement. VII. MONTHLY FEE STATEMENTS 13. ZC previously submitted two monthly fee statements (the Monthly Fee Statements ) during the Application Period. For the period commencing on June 21, 2017 through and including July 31, 2017, ZC requested payment of $413,855.80 in professional fees (representing 80% of the $517,319.75 in total fees incurred during that period) and $118,080.95 in expenses (representing 100% of total expenses incurred during that period). For the period commencing on August 1, 2017 through and including August 31, 2017, ZC requested payment of $476,066.40 in professional fees (representing 80% of the $595,083.00 in total fees incurred during that period) and $111,759.13 in expenses (representing 100% of total expenses incurred 4
Pg 10 of 31 during that period). In total, as outlined in Schedule 4, ZC has submitted Monthly Fee Statements, during the Application Period, for professional fees in the amount of $889,922.20 (representing 80% of the $1,112,402.75 in professional fees incurred by ZC during the Application Period) and expenses incurred in the total amount of $229,840.08 (representing 100% of the expenses incurred by ZC during the Application Period). VIII. SUMMARY OF PROFESSIONAL SERVICES RENDERED AND BENEFIT CONFERRED 14. During the course of ZC s engagement, ZC has (i) provided creditors with a full and complete accounting and reconciliation of all cash receipts, disbursements, and transfers of cash with respect to the Debtors and their non-debtor management companies from August 31, 2016 through June 30, 2017, (ii) advised and assisted the Debtors in forecasting, planning, controlling and other aspects of cash management, including but not limited to preparing and delivering cash collateral reporting, (iii) advised and assisted management in its development of its business plans, (iv) advised the Debtors in its ongoing development of a Plan of Reorganization, and (v) advised and assisted management in organizing the Debtors resources and activities so as to effectively and efficiently plan, coordinate and manage the chapter 11 process and communicate with lenders, employees, and other parties in interest. Additionally, we have a team of professionals working in Greece alongside management of the Debtor to assist the Debtor in performing certain financial functions. We have traveled to England and other countries as required to attend meetings and perform other professional services at the Debtor s request. 15. ZC s cash reconciliation work has improved creditors understanding and trust in the company s operating results and movements in cash collateral. This has served as the foundation for advancing the Debtor s discussions with creditors on a Plan of Reorganization. ZC s work has also (i) resulted in increased visibility of liquidity to management and creditors, 5
Pg 11 of 31 (ii) progressed the development of management s business plans and liquidation analysis, (iii) resulted in more efficient and timely reimbursements of operating expenses from lenders, and (iv) supported the agreement of a bridge order at Sealion to bridge a liquidity shortfall. These deliverables have helped to advance discussions on a Plan of Reorganization with management and creditors. IX. PROFESSIONAL SERVICES BY CATEGORY 16. Pursuant to the Local Rules and Local Guidelines, ZC classified all services performed for which compensation is sought into separate categories. ZC attempted to place the services performed in the category that best relates to the services provided. However, because certain services may relate to one or more categories, services pertaining to one category may be included in another category. Additionally, the following summaries are intended only to highlight key services rendered by ZC during the Application Period in certain project billing categories where ZC has expended a considerable number of hours on behalf of the Debtors, and are not meant to be a detailed description of all of the work performed by ZC. 1 Chapter 11 Process Hours 156.4 Fees $109,670.50 Organizing and managing the Debtors' resources to effectively and efficiently plan, coordinate and manage the chapter 11 process and restructuring process; including preparation of motions and support in filing of objections. 2 DIP Budget Process Management Hours 0.0 Fees $0.00 Developing, designing and preparing various projections, monitoring reports and other information required under the terms of the DIP Agreement. 6
Pg 12 of 31 3 Cash Management Hours 517.8 Fees $250,026.50 Forecasting, planning, and controlling cash and cash position, and analyzing cash variance from forecast. 4 Communication with Interested Parties Hours 114.7 Fees $77,105.50 Preparation of reports to and communicating with the Secured Lenders, Steering Committee, the Official Committee of Unsecured Creditors, their respective advisors, other parties-in-interest, and the U.S. Trustee, including attending and participating in meetings. 5 U.S. Trustee / Court Reporting Requirements Hours 1.9 Fees $836.00 Assisting the Debtors with the preparation of financial and operating information required by such parties as the U.S. Trustee and/or the Court, including the Statement of Financial Affairs and the Schedules of Assets and Liabilities, interim and monthly operating reports and motions, orders and stipulations related hereto. 6 Business Plan Development Scenario Development Hours 49.3 Fees $39,518.50 Developing, designing, drafting, and challenging the Debtors (Multi-Year) Business Plans including related assumptions and rationale. 7 Business Analysis Hours 161.4 Fees $75,100.00 Performing analysis of the business, including evaluation of business line performance, assessments of business developments, industry trends, revenue and expense trends and market conditions. 8 Valuation Hours 1.1 Fees $1,048.50 Assessing likely ranges of value of the Debtors assets or business units under reorganization, sale and/or liquidation scenarios. 9 Asset Dispositions, 363 Sales Hours 0.0 Fees $0.00 Assistance with sales, carve-outs, leases ( 365 matters), abandonment and related transaction work. 7
Pg 13 of 31 10 Accounting Hours 502.3 Fees $268,001.00 Assistance with activities related to reconciling cash, reconciling silo positions, maintaining and closing the accounting records, preparation of financial statements and account analysis. 11 Plan, Disclosure Statement, Solicitation Hours 56.6 Fees $51,209.00 Developing the Debtors Plan of Reorganization (the Plan ) and Disclosure Statement and negotiating such Plan with various parties-in-interest. 12 Cash Collateral Hours 23.8 Fees $19,278.00 Negotiating and complying with cash collateral orders as required. Supporting the Debtors in efforts related to obtaining new financing, including due diligence and meeting with potential Lenders, if applicable. 13 Business Operations Hours 19.3 Fees $10,805.50 Developing, designing and recommending programs to manage or divest assets, support and improve operations, reduce costs and restructure the operations with the objective of rehabilitating the business. 14 Testimony Hours 0.0 Fees $0.00 Preparing for and providing testimony concerning the extensions of exclusivity, adequate disclosure, insolvency, feasibility of the Plan, avoidance actions and other matters that may arise in the case. Assisting the Debtors and Counsel regarding preparation for testimony by management. 15 Executory Contracts, Unexpired Leases, and Real Estate Hours 7.1 Fees $6,786.00 Analyzing executory contracts in order to determine the appropriate course of action to protect the Estates best interests. Preparing and reviewing related motions, applications, orders, stipulations and attending hearings related thereto. 16 Claims Process Hours 0.9 Fees $729.00 Advising and assisting the Debtors with the development of a claims resolution process, including responding to specific claim inquiries, determining bar dates, analyzing claims, settling claims, preparing motions, orders, stipulations related thereto and attending related hearings. 17 Special Projects Hours 0.0 Fees $0.00 Assisting and advising with respect to various projects related to the case including preferences and fraudulent conveyances, as well as other projects identified by the Debtors. 8
Pg 14 of 31 18 ZC Retention and Engagement Administration Hours 113.3 Fees $53,521.00 Planning and coordinating the professionals engagement team activities, participating in engagement team meetings, maintaining engagement files, preparing fee applications and responding to inquiries by the U.S. Trustee and other Parties in Interest. 19 Avoidance Actions Hours 0.0 Fees $0.00 Analysis, meetings, phone calls and report preparation related to avoidance actions. 20 Travel Hours 538.00 Fees $148,767.75 Travel time: Billed at either 50% of hourly rate or 50% of actual time. 21 Executive Committee Updates Hours 0.0 Fees $0.00 Meetings with members of the Executive Committee to provide comprehensive strategic updates on the restructuring process. 17. Schedule 1, attached hereto, lists each timekeeper, his or her respective billing rate, title and the total number of hours expended during the Application Period. Schedule 2, attached hereto, summarizes the professional and paraprofessional time expended by project category during the Application Period. Schedule 3, attached hereto, summarizes, by category, the out-of-pocket expenses incurred by ZC for services rendered during the Application Period. Schedule 4, attached hereto, summarizes the fees and expenses requested by ZC by month for the Application Period. 18. ZC believes that the fees and expenses requested are reasonable, and all amounts requested are for actual and necessary services rendered on behalf of the Debtors. 19. ZC has not entered into any agreement, express or implied, with any other party for the purpose of fixing or sharing fees or other compensation to be paid for professional services rendered in these cases. No promises have been received by ZC or any member thereof as to compensation in connection with these cases other than in accordance with the provisions of the Bankruptcy Code. 9
Pg 15 of 31 X. ALLOWANCE OF COMPENSATION 20. Section 330(a)(1)(A) of the Bankruptcy Code provides that the Court may award to a professional person, reasonable compensation for actual, necessary services rendered. 11 U.S.C. 330(a)(1)(A). Section 330(a)(3)(A), in turn, provides that: 11 U.S.C. 330(a)(3)(A). In determining the amount of reasonable compensation to be awarded, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including (A) the time spent on such services; (B) the rates charged for such services; (C) whether the services were necessary to the administration of, or beneficial at the time which the service was rendered toward the completion of, a case under this title; (D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; (E) with respect to a professional person, whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field; and (F) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. XI. CERTIFICATION 21. The undersigned affiant, a Senior Managing Director of ZC, as the professional designated by ZC with the responsibility for the Application, certifies that except as otherwise noted elsewhere herein: 1) a) He has read the Application; b) To the best of his knowledge, information and belief, formed after reasonable inquiry, the fees and disbursements sought fall within the Local Guidelines, except as may be specifically noted in this Certification and described in the Application; 10
Pg 16 of 31 c) Except to the extent that fees or disbursements are prohibited by the Local Guidelines, the fees and disbursements sought are billed at rates in accordance with practices customarily employed by ZC and generally accepted by ZC s clients; and d) In providing a reimbursable service, ZC does not make a profit on that service, whether the service is performed by ZC in-house or through a third party. XII. NOTICE 22. The Debtors have been provided with an opportunity to review the Monthly Fee Statements, including the time summaries, included in the Applications. 23. Pursuant to the Interim Compensation Order, ZC has or will be serving a copy of this Application upon: (i) the Debtors, c/o Brokerage and Management Corporation, NY Agency of Marine Management Services, M.C., 40 Wall Street, New York, New York 10005, Attn: Richard W. Baldwin, Esq.; (ii) counsel to the Debtors, Togut, Segal & Segal LLP, One Penn Plaza, Suite 3335, New York, New York, 10119, Attn: Frank A. Oswald, Esq. and Brian F. Moore, Esq. (frankoswald@teamtogut.com and bmoore@teamtogut.com); (iii) the Office of the United States Trustee for Region 2, U.S. Federal Office Building, 201 Varick Street, Suite 1006, New York, New York 10014, Attn: Paul Schwartzberg, Esq. (paul.schwartzberg@usdoj.gov); (iv) counsel to Citibank, N.A., Norton Rose Fulbright US LLP, 1301 Avenue of the Americas, New York, New York 10019, Attn: Louis R. Strubeck, Jr., Esq. and David Rosenzweig, Esq. (louis.strubeck@nortonrosefulbright.com and david.rosenzweig@nortonrosefulbright.com); (v) counsel to the Ad Hoc Steering Committee of Lenders, Cadwalader, Wickersham & Taft LLP, 200 Liberty Street, New York, New York, 10281, Attn: Gregory Petrick, Esq. and Michele Maman, Esq., (Gregory.Petrick@cwt.com and Michele.Maman@cwt.com); and (iv) counsel to Credit Agricole, Linklaters LLP, 1345 Avenue of the Americas, New York, New York 10019, Attn: Robert Trust, Esq. and Margot Schonholtz, Esq., (Robert.trust@linklaters.com and margot.schonholtz@linklaters.com). 11
Pg 17 of 31
Pg 18 of 31 Exhibit A Engagement Letter
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Pg 26 of 31 Exhibit B Retention Order
17-10184-scc Doc 267 369 Filed 08/02/17 11/09/17 Entered 08/02/17 11/09/17 10:46:59 16:03:20 Main Document Pg Pg 27 1 of 531 UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ) In re: ) Chapter 11 ) TOISA LIMITED, et al., ) Case No. 17 10184 (SCC) ) ) Jointly Administered Debtors. 1 ) ) ) ORDER AUTHORIZING DEBTORS TO RETAIN ZOLFO COOPER, LLC AS BANKRUPTCY CONSULTANTS AND SPECIAL FINANCIAL ADVISORS TO THE DEBTORS NUNC PRO TUNC TO JUNE 21, 2017 This matter coming to be heard upon the Application of the Debtors for an Order authorizing the above-captioned debtors and debtors in possession (collectively, the Debtors ) to retain Zolfo Cooper, LLC (either Zolfo Cooper, LLC or ZC or the Firm ) as Bankruptcy Consultants and Special Financial Advisors to the Debtors (the Application ) 2 filed by the Debtors; and the Court having reviewed the Application and the Declaration of Jonathan Mitchell, a senior managing director of ZC (the Mitchell Declaration ), in support of such Application; and it appearing to the Court 1 The Debtors are as follows: trade Prosperity, Inc.; Toisa Limited; United Courage, Inc.; Trade Vision, Inc.; United Journey, Inc.; United Kalavryta, Inc.; trade Sky, Inc.; Trade Industrial Development Corporation; United Honor, Inc.; Trade Will, Inc.; United Leadership Inc.; United Seas, Inc.; United Dynamic, Inc.; United Emblem, Inc.; United Ideal Inc.; Trade United, Inc.; Trade Quest, Inc.; Trade Spirit, Inc.; Trade Resource, Inc.; United Ambassador, Inc.; Edgewater Offshore Shipping, Ltd.; United Banner, Inc.; Toisa Horizon, Inc.; and Trade and Transport Inc. Development Corporation; United Honor, Inc.; Trade Will, Inc. United Leadership Inc.; United Seas, Inc.; United Dynamic Inc.; United Emblem, Inc.; United Ideal Inc.; Trade Unity, Inc.; Trade Quest, Inc.; Trade United Banner, Inc.; Toisa Horizon, Inc. and Trade and Transport Inc. 2 Capitalized terms not otherwise defined herein shall have the meanings given to them in the Application.
17-10184-scc Doc 267 369 Filed 08/02/17 11/09/17 Entered 08/02/17 11/09/17 10:46:59 16:03:20 Main Document Pg Pg 28 2 of 531 that: (i) notice of the filing of the Application was adequate under the circumstances; (ii) ZC does not hold or represent any interest adverse to the interests of the Debtors, their estates, their creditors or other parties in interest, the United States Trustee, or anyone employed in the Office of the United States Trustee in the matters upon which ZC is to be engaged and is a disinterested person as that term is defined in section 101(14) of the Bankruptcy Code; (iii) the Debtors require the assistance of knowledgeable Bankruptcy Consultants and Special Financial Advisors and desire to employ and retain ZC pursuant to section 327 of the Bankruptcy Code, to render the essential services set forth in the Application as needed during the course of these chapter 11 proceedings and that ZC is well qualified to render such services; (iv) this Court has proper jurisdiction with respect to the granting of the relief requested herein; and (v) the employment and retention of ZC is in the best interests of the Debtors, their respective estates, their creditors and other parties in interest herein; and the Court being fully advised in the premises and having determined that the legal and factual bases set forth in the Application and the Mitchell Declaration, which are in full compliance with applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules, establish just and sufficient cause for the relief granted herein; IT IS HEREBY ORDERED that, nunc pro tunc, to June 21, 2017: 1. The Application is granted as set forth herein nunc pro tunc to June 21, 2017. 2. The Debtors shall be, and hereby are, authorized to employ and retain ZC as their Bankruptcy Consultants and Special Financial Advisors in connection with
17-10184-scc Doc 267 369 Filed 08/02/17 11/09/17 Entered 08/02/17 11/09/17 10:46:59 16:03:20 Main Document Pg Pg 29 3 of 531 these chapter 11 cases and the Debtors businesses generally, upon the terms and for the purposes set forth and as requested in the Application, Mitchell Declaration, the Engagement Letter and attachments thereto. 3. ZC shall, and hereby is authorized to, perform the services enumerated in the Engagement Letter. 4. ZC s fees for services will be based on Zolfo Cooper s standard hourly rates, plus reasonable and necessary expenses, as set forth in the Application, the Mitchell Declaration and the Engagement Letter. Zolfo Cooper shall be compensated in accordance with and will file interim and final fee applications for allowance of its compensation and expenses in accordance with the Fee Guidelines, and shall be subject to sections 330 and 331 of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, the Amended Guidelines for Fees and Disbursements for Professionals in the Southern District of New York, dated January 29, 2013, the Order Establishing Procedures for Interim Compensation and Reimbursement of Expenses of Professionals entered February 21, 2017 [Docket No. 37], and any other orders entered by the Court. 5. Notwithstanding anything to the contrary in the Engagement Letter, the Application or the Mitchell Declaration, the Debtors are authorized to indemnify and hold harmless ZC and its affiliates, their respective directors, officers, agents, employees and controlling persons, and each of their respective successors and assigns (collectively, the Indemnified Persons ), pursuant to the terms and conditions set forth in the Engagement Letter, subject to the following conditions:
17-10184-scc Doc 267 369 Filed 08/02/17 11/09/17 Entered 08/02/17 11/09/17 10:46:59 16:03:20 Main Document Pg Pg 30 4 of 531 (a) (b) (c) all requests of Indemnified Persons for the payment of indemnity contribution or otherwise pursuant to the Engagement Letter shall be made by means of interim and final fee applications filed in accordance with the Bankruptcy Code, the local rules of this Court and any order establishing compensation procedures in these cases, and shall be subject to the approval of, and review by, the Court to ensure that such payment (i) conforms to the terms of the Engagement Letter, the Bankruptcy Code, the Bankruptcy Rules, the Local Rules and the orders of this Court, and (ii) is reasonable based upon the circumstances of the litigation or settlement in respect of which the indemnity is sought; provided, however, that in no event shall any Indemnified Person be indemnified or receive contribution in the case of bad faith, self-dealing, breach of fiduciary duty, if any, gross negligence or willful misconduct on the part of that or any other Indemnified Persons; in no event shall any Indemnified Person be indemnified or receive contribution or other payment under the Engagement Letter if the Debtors, their estates or any statutory committee that may be appointed in these Chapter 11 Cases asserts a claim for, and the Court determines by final order that such claim arose out of, bad faith, self-dealing, breach of fiduciary duty, if any, gross negligence or willful misconduct on the part of that or any other Indemnified Persons; and in the event that an Indemnified Person seeks reimbursement for attorneys fees from the Debtors, the invoices and supporting time records from such attorneys shall be annexed to ZC s own interim and final fee applications, and such invoices and time records shall be subject to the United States Trustee s guidelines for compensation and reimbursement of expenses and the approval of the Court without regard to whether such attorney has been retained under sections 327 or 1103 of the Bankruptcy Code. 6. Notwithstanding anything to the contrary in the Engagement Letter, ZC s liability, including but not limited to lost profits, consequential, indirect, punitive, exemplary or special damages, arising in tort, contract or otherwise, shall not be limited in the case of ZC s own willful misconduct, gross negligence, breach of fiduciary duty, self-dealing and/or bad faith.
17-10184-scc Doc 267 369 Filed 08/02/17 11/09/17 Entered 08/02/17 11/09/17 10:46:59 16:03:20 Main Document Pg Pg 31 5 of 531 7. To the extent that this Order is inconsistent with the Engagement Letter with respect to the terms and conditions of ZC s retention and employment by the Debtors in these chapter 11 cases, the terms of this Order shall govern. 8. The Debtors and ZC are authorized to take all actions necessary to effectuate the relief granted pursuant to this Order in accordance with the Application and the Engagement Letter. 9. The relief requested herein shall continue to apply to any of the Debtors affiliates and their respective estates that subsequently commence chapter 11 cases without the need for any further requests or motions. 10. Notice of the Application as provided therein shall be deemed good and sufficient and the requirements of Bankruptcy Rule 6004(a) and the Local Rules are satisfied by such notice. 11. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Order shall be immediately effective and enforceable upon its entry. Dated: August 1, 2017 New York, New York /S/ Shelley C. Chapman HONORABLE SHELLEY C. CHAPMAN UNITED STATES BANKRUPTCY JUDGE