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UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE
Chapter 11 In re:
INTERVENTION ENERGY Case No. 16- 11247 (KJC) HOLDINGS, LLC., et al., (Jointly Administered) Debtors.1 Related Docket Nos. 107 and 127 Hearing Date: July 26, 2016 at 10:00 a.m. (ET)
DEBTORS’ REPLY TO EIG MANAGEMENT COMPANY, LLC’S OBJECTION TO THE DEBTORS’ APPLICATION FOR AN ORDER AUTHORIZING THE EMPLOYMENT AND RETENTION OF PJT PARTNERS LP AS INVESTMENT BANKER FOR THE DEBTORS NUNC PRO TUNC TO THE PETITION DATE
Intervention Energy Holdings, LLC and Intervention Energy, LLC (together, the
“Debtors”), by and through their proposed undersigned counsel, DLA Piper LLP (US), submit this reply (the “Reply”) to EIG Management Company, LLC’s Objection to the Debtors’
Application for an Order Authorizing the Employment and Retention of PJT Partners LP as
Investment Banker for the Debtors Nunc Pro Tunc to the Petition Date [Docket No. 127] (the
“Objection”) filed by EIG Management Company, LLC (“EIG”). In support of their Reply, the
Debtors’ respectfully represent as follows:2
PRELIMINARY STATEMENT
1. Since the outset of these Chapter 11 Cases, PJT has been instrumental in advising and assisting the Debtors in their attempt to obtain a successful resolution of these Chapter 11
1 The Debtors in these Chapter 11 cases, together with the last four digits of each Debtor’s federal tax identification number, are as follows: Intervention Energy Holdings, LLC (8131); and Intervention Energy, LLC (8131). The mailing address for the Debtors, solely for purposes of notices and communications, is: 475 17th Street, Suite 1040, Denver, CO 80202. 2 Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Debtors’ Application for an Order Authorizing the Employment and Retention of PJT Partners LP as Investment Banker for the Debtors Nunc Pro Tunc to the Petition Date [Docket No. 107] (the “PJT Retention Application”). The Debtors intend to submit a revised proposed order at the hearing on the PJT Retention Application that reflects comments received from the U.S. Trustee.
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Cases with a primary focus being the repayment of the debt owed to EIG under the Note
Purchase Agreement, dated as of January 6, 2012. As described in more detail below, among other customary financial advisory services performed in the context of a chapter 11 case, PJT has performed and continues to perform substantial work in an effort to locate third parties willing to provide financing, all on a very compressed and expedited time frame.
2. As an initial matter, the retention of a specific professional (whether a law firm or financial advisor) to assist a debtor in its chapter 11 case is subject to the business judgment of the debtor. It is not any one creditor or group of creditors that can or should dictate which professionals that a debtor hires. The debtor conducts its activities and oversees its chapter 11 case for the benefit of all of its constituent groups, and not just for the benefit of one creditor or other constituent. Simply put, EIG should not be permitted to dictate who the Debtors hire and should not get a “veto right” as EIG appears to be arguing.
3. Notwithstanding the extensive services that PJT is performing on behalf of the
Debtors, EIG argues that PJT’s fees are unreasonable when compared to other bankruptcy cases in which PJT and other investment banking firms have been retained (erroneously using the amount of a debtor’s funded debt as the sole metric to determine reasonableness). However, as demonstrated herein, the fees and other terms provided for in PJT’s Engagement Letter are consistent with other debtor-side engagements and, in fact, the Restructuring Fee is the lowest
PJT has agreed to in any recent energy restructuring.
4. EIG also argues that a “Fee Tail”, which is standard in the industry and customarily approved by bankruptcy courts, is unreasonable. In fact, this case highlights the very need for such a fee tail. It seems apparent from the Objection that EIG is not supportive of
PJT’s fees and EIG may continue to take actions aimed at preventing PJT from being paid its
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Restructuring Fee, even if the PJT Retention Application is approved by this Court. Thus, to the extent that EIG is able to gain control of the Debtors or their assets via the chapter 11 process, in the absence of a fee tail, PJT could be at risk of not being paid the Restructuring Fee despite performing significant services in these Chapter 11 Cases.
5. EIG also argues that it should be permitted to review PJT’s fees pursuant to the reasonableness standard under sections 330 and 331 of the Bankruptcy Code. For the reasons described below, allowing a creditor such review rights is contrary to well-established precedent in this and other bankruptcy courts and should not be permitted. Moreover, the fact that EIG may not ultimately agree with the outcome of these Chapter 11 Cases does not mean that the
Debtors’ advisors should not be paid for services designed to assist the Debtors in achieving a restructuring. Simply put, EIG’s Objection underscores exactly why investment bankers seek, and this Court and other bankruptcy courts routinely grant, section 328(a) approval for success fees.
6. For the reasons set forth below, the Debtors respectfully request that the Court overrule the Objection and approve the PJT Retention Application so that PJT and the Debtors can continue their efforts to secure financing for a restructuring or otherwise achieve a consensual resolution of these cases with all constituents while continuing to navigate the many other financial and business aspects of the Debtors’ and these Chapter 11 Cases.
REPLY
I. IN THIS CASE, THE AMOUNT OF FUNDED DEBT IS NOT THE SOLE OR EVEN THE MOST IMPORTANT METRIC FOR DETERMINING WHETHER PJT’S FEES ARE REASONABLE.
7. According to EIG, an analysis of whether an investment banker’s fees are reasonable begins and ends by calculating the total fees as a percentage of a debtor’s prepetition
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funded debt. However, while such a metric may help to provide a reference point, it is but one metric and has minimal relevance or importance in these particular Chapter 11 Cases. In order to fully perform its services under the Engagement Letter, PJT has and will continue to dedicate significant resources to this case. Merely because there is less funded debt does not mean that
PJT will need to dedicate any less resources or perform any less work than it would need to dedicate or perform if the funded debt were higher. In short, there is a minimum fee that would justify PJT’s time and resources in accepting an engagement of this type.
8. PJT has performed substantial services on behalf of the Debtors thus far in these
Chapter 11 Cases and continues to do so. A non-exhaustive list of the primary services performed by PJT so far includes the following activities:
a. Performed due diligence and assisted in the preparation of the Debtors’ 13- week cash flow budget;
b. Participated in numerous discussions with the Debtors and their counsel with respect to financial and operational issues, and performed related analysis;
c. Assisted management and its counsel in discussions and negotiations with certain of the Debtors’ vendors and with analysis with respect thereto;
d. Provided support and analysis in connection with the Debtors’ interaction and negotiations with other constituents, including EIG;
e. Performed long-term financial modeling;
f. Assisted the Debtors and their counsel with restructuring strategy, alternatives and options;
g. Participated in conference calls with the Debtors’ board of directors and provided periodic updates to board members;
h. Reviewed and provided comments on various pleadings to be filed by the Debtors in these Chapter 11 Cases;
i. Assisted in the Debtors’ efforts to locate refinancing for the notes held by EIG, including preparing a “teaser” to be provided to interested parties,
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coordinating the negotiation and signing of non-disclosure agreements (“NDAs”) by various interested parties, preparing an extensive confidential information memorandum for potential investors, populating an electronic dataroom for interested parties that signed an NDA, preparing a long-term financial forecast, contacting approximately fifty (50) potential third-party investors to date (including many top tier private equity investors as to which PJT has access by virtue of its experience and reputation), and coordinating and participating in numerous management meetings/calls with leading energy investment firms; and
j. Other services routinely performed by an investment banking firm representing a company in a chapter 11 case.
9. For this matter, PJT has dedicated the same number of team members that work on the vast majority of PJT’s debtor-side restructuring deals including ones with larger funded levels of debt. Members of the PJT team working on this engagement have substantial restructuring and oil and gas experience, having been involved with PJT’s representation of significant parties in the following recent, high-profile oil and gas restructurings: Samson
Resources, Sabine Oil & Gas, Chaparrel Energy, New Gulf Resources, Endeavor Operating
Corp., BPZ Resources, Sanjel Corp, and other confidential oil and gas restructurings. PJT is one of the leading investment banking firms involved in oil and gas company restructurings and has a proven track record for obtaining successful resolutions in the cases in which it is involved.
10. In May 2016, PJT and the Company had discussions with respect to the terms upon which PJT would be retained, including PJT’s Monthly Fee and Restructuring Fee. While the Debtors sought to lower PJT’s fees, PJT advised that it had made a decision, as an institutional matter, that it could not take on an engagement for a Monthly Fee of less than
$150,000 and a Restructuring Fee of less than $3.5 million given the resources that it would need to dedicate and in light of other potential opportunities that PJT would likely need to forgo by taking on such an engagement. At that time, PJT provided the Debtors with the names of two other investment banking firms that it believed would be willing to provide investment banking
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services to the Debtors under a lower fee structure. However, the Debtors determined that PJT
was the right choice to advise the Debtors given its experience and track record.
11. Attached as Exhibit A hereto is a chart showing debtor-side advisory success fees
in numerous recent energy restructurings. As can be seen, PJT’s Restructuring Fee of $3.5
million is one of the lowest. In fact, as shown in Exhibit B, PJT’s $3.5 million Restructuring Fee
in this case is the lowest it has agreed to in any recent debtor-side energy restructuring. 3
12. The Debtors submit that there is no basis for determining the reasonableness of
PJT’s fees based solely (or even primarily) upon the amount of the Debtors’ funded debt.
Rather, for the reasons stated above, the Debtors submit that PJT’s fees are on the low end of the
spectrum of fees that have been approved in other cases and are wholly reasonable.
II. A FEE TAIL IS REASONABLE AND CUSTOMARY IN THE INDUSTRY AND IN THIS CASE.
13. It is customary for investment bankers to include a “Fee Tail” in their
engagements. Fee Tails can vary in length and PJT requests a Fee Tail in every single one of
their engagements, which is appropriate and market in the industry. A Fee Tail is a standard
feature in an investment banker engagement to protect the firm from having done all (or
substantially all) the work on a transaction only to be terminated prior to closing.
14. Here, the Engagement Letter provides that PJT would be entitled to a
Restructuring Fee in the event that a Restructuring Transaction is consummated. As described in
more detail above, PJT has dedicated a team to assist the Debtors on their refinancing efforts and
other financial, operating and bankruptcy related matters and has thus far conducted a significant
3 EIG asserts that a secured creditor is usually asked to consent to any proposed investment banking engagement and suggests that the failure to obtain EIG’s consent of the Debtors’ engagement of PJT was improper. Objection at ¶ 17. However, in practice, while debtors may on occasion consult with secured lenders, debtors are entitled to exercise their business judgment in selecting their advisors.
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amount of work in connection with these Chapter 11 Cases. Thus, the Fee Tail protects PJT
against the risk that it will not be paid if its services are terminated prior to the consummation of
a Restructuring Transaction that PJT has worked to obtain. To be clear, PJT does not anticipate
nor does it expect to collect on its Restructuring Fee in the event the automatic stay is lifted on a
non-consensual basis to allow EIG to exercise its remedies and EIG subsequently obtains
possession of the Debtors’ assets via a foreclosure or otherwise.4
15. However, this case highlights the very need for the protection of a fee tail. It is
apparent from the Objection that EIG is not supportive of PJT’s fees and EIG may continue to
take actions aimed at preventing PJT from being paid its Restructuring Fee, even if the PJT
Retention Application is approved by this Court. Thus, to the extent that EIG is able to gain
control of the Debtors or their assets via the chapter 11 process, in the absence of a fee tail, PJT
could be at risk of not being paid the Restructuring Fee despite performing significant services in
these Chapter 11 Cases. Such a result should not be countenanced by this Court.
III. EIG SHOULD NOT BE PROVIDED WITH SECTION 330 REVIEW RIGHTS WITH RESPECT TO PJT’S FEES.
16. The proposed retention order attached to the PJT Retention Application carves out
a “reasonableness” review by only the U.S. Trustee pursuant to section 330 of the Bankruptcy
Code. This type of review reserved for the U.S. Trustee is standard and well-established for the
retention of financial advisors and investment bankers.5
4 EIG’s reference to a prepetition proposed transaction involving the Debtors has no bearing on the PJT Retention Application. As the Debtors have indicated in the First Day Declaration, such “proposed” transaction was a transaction whereby “EIG indicated that they would exercise the Stock Pledge and take control of IE” (see First Day Declaration at ¶ 37), which precipitated the commencement of these Chapter 11 Cases in the first place. 5 It is the Debtors’ understanding that all of the comments and concerns of the U.S. Trustee with respect to the PJT Retention Application have been resolved by virtue of certain changes that will be included in the revised proposed order that the Debtors intend to submit at or prior to the hearing.
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17. Moreover, in virtually every case in which PJT has been retained as a debtor’s investment banker, PJT has been retained pursuant to section 328, with a review for
“reasonableness” pursuant to section 330 only provided for the U.S. Trustee. Exhibit C hereto lists a representative sample of the debtor-side advisory engagements on which PJT (or its predecessor Blackstone) has worked over the last decade. In each such case, bankruptcy courts have granted PJT’s retention under section 328(a) with section 330 review rights provided only to the U.S. Trustee.6
18. The reason for this type of limited review of the fee structure is straightforward:
PJT’s fee structure, as is usually the case with investment bankers, is “back-end” loaded. Unlike attorneys, accountants or other service providers, investment banks in the restructuring area do not have hourly rate schedules, but instead charge a fixed fee contingent upon consummation of a transaction on which the firm is advising. The fixed fee model more closely resembles a broker’s commission or fees for contingency counsel versus the lodestar method of billing, and thus is more appropriately governed by section 328, rather than section 330. The payment of fees to an investment banker dependent on the consummation of a transaction more closely aligns the interest of investment bankers with those of their clients. Although tying the payment of the transaction fee to the consummation of a transaction means that much of the investment banker’s compensation is paid at the end of the engagement which, to persons accustomed to
“lodestar” methods of compensation, might be misconstrued as an extraordinary “bonus” as
6 EIG states that “courts in this district routinely defer approval of back-end ‘success fees’ to further review and order of the court after the parties have had an opportunity to evaluate the reasonableness of the fee request under section 330 of the Bankruptcy Code and cites to two cases, one from 2010 and another from 2011. Objection at ¶35 (citing to In re Blitz U.S.A., Inc., Case No. 11-13603(PJW) (Bankr. D. Del. Dec. 20, 2011) [Docket No. 156]; and In re Middlebrook Pharm., Inc., Case No. 10-11485 (MFW) (Bankr. D. Del. June 9, 2011) [Docket No. 138]. However, in both Blitz and Middlebrook, the fees of the financial advisor/investment banker were subject to the reasonableness review only by the U.S. Trustee and the creditors’ committee, not by the court or any other party.
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opposed to what it is, a simple deferral by the investment bank of a large portion of its projected compensation.
19. As such, if the bulk of the “back end” fee structure is at a higher risk, PJT would need to increase the amount of its fees that are at “lower risk” or else PJT would simply not be able to take on as many engagements. Indeed, it is likely that most professionals in the industry would stop pursuing this type of work—and the entire industry would suffer—if large amounts of their compensation were to be at increased risk.
20. Accordingly, it is more appropriate for only a neutral party, such as the U.S.
Trustee, to retain the right to review PJT’s fees for reasonableness and the Court should not permit EIG to retain the right to object to the reasonableness of PJT’s fees pursuant to section
330.
21. The fact that EIG may not ultimately agree with the outcome of these Chapter 11
Cases does not mean that the Debtors’ advisors should not be paid for services designed to assist the Debtors in achieving a restructuring. Simply put, EIG’s Objection underscores exactly why investment bankers seek, and this and other bankruptcy courts routinely grant, section 328(a) approval for success fees (with a carveout for section 330 review by the U.S Trustee).
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CONCLUSION
WHEREFORE, the Debtors respectfully request the Court overrule EIG’s Objection, approve the PJT Retention Application and grant such other and further relief as the Court may deem just and proper.
Dated: July 21, 2016 Respectfully submitted, Wilmington, Delaware DLA PIPER LLP (US)
/s/ Stuart M. Brown Stuart M. Brown (DE 4050) 1201 North Market Street, Suite 2100 Wilmington, DE 19801 Telephone: (302) 468-5700 Facsimile: (302) 394-2341 Email: [email protected]
-and-
Thomas R. Califano (admitted pro hac vice) Dienna Corrado (admitted pro hac vice) 1251 Avenue of the Americas New York, New York 10020 Telephone: (212) 335-4500 Facsimile: (212) 335-4501 Email: [email protected] [email protected]
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EXHIBIT A
Summary of Success Fees in Debtor-side Advisory Engagements Recent U.S. Energy Bankruptcies (>$100MM in Funded Debt)
Success Company Petition Date Advisor Fee ($MM) LINN 5/11/16 Lazard $29.8 Breitburn 5/15/16 Lazard 17.5 SandRidge 5/16/16 Houlihan Lokey 12.5 Ultra Petroleum 4/29/16 Rothschild/Petrie 12.0 Quicksilver 3/17/15 Houlihan Lokey 10.6 Energy XXI 4/14/16 PJT 10.5 Undisclosed E&P Company TBD PJT 10.0 Samson Resources 9/16/15 PJT 9.5 Paragon 2/14/16 Lazard 8.5 Chaparral 5/9/16 Evercore 8.0 Sabine 7/15/15 Lazard 7.5 Hercules 8/13/15 Lazard 7.0 Penn Virginia 5/12/16 Jefferies 7.0 Endeavour Operating Corp 10/10/14 PJT 7.0 Midstates 4/30/16 Evercore 6.5 Swift 12/31/15 Lazard 5.8 Magnum Hunter 12/15/15 PJT 5.8 Energy & Exploration 12/7/15 Evercore 5.5 Triangle Petroleum 6/29/16 PJT 5.3 Southcross 3/27/16 Houlihan Lokey 5.0 CHC Group 5/5/16 PJT 5.0 Venoco 3/18/16 PJT 4.8 Warren Resources 6/2/16 Jefferies 4.6 Horsehead 2/2/16 Lazard 3.5 New Gulf 12/17/15 Barclays 3.5 Intervention Energy 5/20/16 PJT 3.5 Miller Energy 10/1/15 Seaport 2.8 Emerald Oil 3/22/16 Intrepid Partners 2.0 BPZ Resources 3/9/15 Houlihan Lokey 1.8 Goodrich 4/15/16 Lazard 1.3 Cubic Energy 12/11/15 Houlihan Lokey 0.8
Case 16-11247-KJC Doc 139-1 Filed 07/21/16 Page 2 of 2
EXHIBIT A (Cont’d)
Summary of Success Fees in Debtor-side Advisory Engagements Recent U.S. Energy Bankruptcies (>$100MM in Funded Debt)
$15.0
$12.0
$9.0
$6.0
$3.0
-
Swift
LINN
Sabine
Venoco
Paragon
Hercules
Goodrich
Breitburn
Midstates
Chaparral
New Gulf New
Horsehead
SandRidge Southcross
Quicksilver
CHC Group CHC
Energy XXI Energy Oil Emerald
Cubic Energy Cubic
Penn Virginia Penn
Miller Energy Miller
BPZ Resources BPZ
Ultra Petroleum Ultra
Magnum Hunter Magnum
Warren Resources Warren
Samson Resources Samson
Triangle Petroleum Triangle
Intervention Energy Intervention
Energy & Exploration & Energy Endeavour Operating Corp Operating Endeavour Undisclosed E&P Company E&P Undisclosed Note: LINN Success Fee is $29.8MM and Breitburn Success Fee is $17.5MM Case 16-11247-KJC Doc 139-2 Filed 07/21/16 Page 1 of 1
EXHIBIT B
Summary of Success Fees in PJT Debtor-side Advisory Engagements Recent PJT Advised U.S. Energy Bankruptcies (>$100MM in Funded Debt)
Success Company Petition Date Advisor Fee ($MM) Energy XXI 4/14/16 PJT $10.5 Undisclosed E&P Company TBD PJT 10.0 Samson Resources 9/16/15 PJT 9.5 Endeavour Operating Corp 10/10/14 PJT 7.0 Magnum Hunter 12/15/15 PJT 5.8 Triangle Petroleum 6/29/16 PJT 5.3 CHC Group 5/5/16 PJT 5.0 Venoco 3/18/16 PJT 4.8
Intervention Energy 5/20/16 PJT $3.5
Mean $7.2 Median 6.4
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EXHIBIT C
Summary Of PJT Partners Debtor-side Advisory Engagements
Date Company Judge District Code Provision for Retention 4/21/2006 ABB Lummus Global Inc. Judith K. Fitzgerald Delaware §§ 328(a) 9/28/2006 Global Power Equipment Group Inc. Brendan L. Shannon Delaware §§ 328(a) & 330 (for Trustee) 1/18/2007 Pacific Lumber Company Richard S. Schmidt Texas (SD - Corpus Christi)§§ 328(a) & 330 (for Trustee) 1/18/2007 Scotia Pacific Company Richard S. Schmidt Texas (SD - Corpus Christi)§§ 328(a) & 330 (for Trustee) 7/22/2008 SemGroup LP Brendan L. Shannon Delaware §§ 328(a) & 330 (for Trustee) 9/26/2008 Washington Mutual Mary F. Walrath Delaware §§ 328(a) & 330 (for Trustee) 12/22/2008 Flying J Mary F. Walrath Delaware §§ 328(a) & 330 (for Trustee) 1/9/2009 Merisant Worldwide, Inc. Peter J. Walsh Delaware §§ 328(a) & 330 (for Trustee) 1/15/2009 Star Tribune Robert D. Drain New York (SD) §§ 328(a) & 330 (for Trustee) 3/5/2009 Magna Entertainment Mary F. Walrath Delaware §§ 328(a) & 330 (for Trustee) 4/16/2009 AbitibiBowater Inc. Kevin J. Carey Delaware §§ 328(a) & 330 (for Trustee) 10/21/2009 Nortek Holdings Kevin J. Carey Delaware §§ 328(a) & 330 (for Trustee) 12/21/2009 Hawkeye Renewables Kevin J. Carey Delaware §§ 328(a) & 330 (for Trustee) 1/27/2010 National Products Group Brendan L. Shannon Delaware §§ 328(a) & 330 (for Trustee) 3/6/2010 Centaur, LLC Kevin J. Carey Delaware §§ 328(a) & 330 (for Trustee) 5/31/2010 Specialty Products Holding Corp. Judith K. Fitzgerald Delaware §§ 328(a) & 330 (for Trustee) 10/19/2010 Terrestar Networks Sean H. Lane New York (SD) §§ 328(a) & 330 (for Trustee) 11/8/2010 Ambac Financial Group, Inc. Shelley C. Chapman New York (SD) §§ 328(a) & 330 (for Trustee) 2/16/2011 Terrestar Corporation Sean H. Lane New York (SD) §§ 328(a) & 330 (for Trustee) 6/27/2011 Los Angeles Dodgers Kevin Gross Delaware §§ 328(a) & 330 (for Trustee) 12/12/2011 Lee Enterprises Kevin Gross Delaware §§ 328(a) & 330 (for Trustee) 5/21/2012 Houghton Mifflin Harcourt Robert E. Gerber New York (SD) §§ 328(a) & 330 (for Trustee) 7/9/2012 Patriot Coal Corporation Shelley C. Chapman New York (SD) §§ 328(a) & 330 (for Trustee) 4/21/2014 Genco Shipping & Trading Limited Sean H. Lane New York (SD) §§ 328(a) & 330 (for Trustee) 6/23/2014 Nautilus Holdings Robert D. Drain New York (SD) §§ 328(a) & 330 (for Trustee) 10/10/2014 Endeavour Operating Corporation Kevin J. Carey Delaware §§ 328(a) & 330 (for Trustee) 5/5/2015 Magnetation Gregory F. Kishel Minnesota §§ 328(a) & 330 (for Trustee) 7/15/2015 Walter Energy Tamara O. Mitchell Alabama (ND) §§ 328(a) & 330 (for Trustee) 7/30/2015 Relativity Fashion LLC Michael E. Wiles New York (SD) §§ 328(a) & 330 (for Trustee) 9/16/2015 Samson Resources Corporation Christopher S. Sontchi Delaware §§ 328(a) & 330 (for Trustee) 12/15/2015 Magnum Hunter Resources Kevin Gross Delaware §§ 328(a) & 330 (for Trustee) 1/11/2016 Arch Coal Charles E. Rendlen, III Missouri (ED) §§ 328(a) & 330 (for Trustee) 1/26/2016 Verso Corporation Kevin Gross Delaware §§ 328(a) & 330 (for Trustee) 3/18/2016 Venoco Kevin Gross Delaware §§ 328(a) & 330 (for Trustee) 5/5/2016 CHC Helicopter Barbara J. Houser Texas (ND - Dallas) §§ 328(a) & 330 (for Trustee)