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Allied Systems Holdings, Inc., eta!., filed a chapter 11 case in the District of Delaware. The debtors in the above-captioned cases are Allied Systems, Allied Automotive Group, Allied Freight Broker LLC and Allied Systems (Canada) Company. The Committee filed an Application for an Order Authorizing the employment and retention of conway Mackenzie, Inc. As Financial Advisor to the committee.
Allied Systems Holdings, Inc., eta!., filed a chapter 11 case in the District of Delaware. The debtors in the above-captioned cases are Allied Systems, Allied Automotive Group, Allied Freight Broker LLC and Allied Systems (Canada) Company. The Committee filed an Application for an Order Authorizing the employment and retention of conway Mackenzie, Inc. As Financial Advisor to the committee.
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Allied Systems Holdings, Inc., eta!., filed a chapter 11 case in the District of Delaware. The debtors in the above-captioned cases are Allied Systems, Allied Automotive Group, Allied Freight Broker LLC and Allied Systems (Canada) Company. The Committee filed an Application for an Order Authorizing the employment and retention of conway Mackenzie, Inc. As Financial Advisor to the committee.
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Attribution Non-Commercial (BY-NC)
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Descărcați ca PDF, TXT sau citiți online pe Scribd
FOR THE DISTRICT OF DELAWARE ALLIED SYSTEMS HOLDINGS, INC., eta!., 1 ) Chapter 11 ) ) Case No. 12-11564 (CSS) ) Debtors. ) (Jointly Administered) ) ) Related Docket No. 291 CERTIFICATE OF NO OBJECTION REGARDING APPLICATION FOR AN ORDER AUTHORIZING THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS TO RETAIN AND EMPLOY CONWAY MACKENZIE, INC. AS FINANCIAL ADVISOR NUNC PRO TUNC TO JUNE 25, 2012 The undersigned, co-counsel for the Official Committee of Unsecured Creditors (the "Committee") in the above captioned cases, hereby certifies as follows: 1. On July 25, 2012, the Committee filed the Application for Entry of an Order Authorizing the Employment and Retention of Conway Mackenzie, Inc. as Financial Advisor to the Official Committee of Unsecured Creditors, Nunc Pro Tunc to June 25, 2012 (the "Application"), (Docket No. 291) with the United States Bankruptcy Court for the District of Delaware (the "Court"). 2. No answer, objection or other responsive pleading to the Application has appeared on the Court's docket in the above-captioned chapter 11 cases, and undersigned counsel to the Committee has not received, and understands that the Committee has not received, any informal objections, answers, responses, comments or any other responsive pleading with The debtors in the above-captioned cases (collectively, the "Debtors"), along with the federal tax identification number (or Canadian business number where applicable) for each of the Debtors, are: Allied Systems Holdings, Inc. (58-0360550); Allied Automotive Group, Inc. (58-220 I 081 ); Allied Freight Broker LLC (59- 2876864); Allied Systems (Canada) Company (90-0169283); Allied Systems, Ltd. (L.P.) (58-1710028); Axis Areta, LLC ( 45-5215545); Axis Canada Company 87568828); Axis Group, Inc. (58-2204628); Commercial Carriers, Inc. (38-0436930); CT Services, Inc. (38-2918187); C01din Transport LLC (38-1985795); F.J. Boutell Driveaway LLC (38-0365100); GACS Incorporated (58-1944786); Logistic Systems, LLC (45-4241751); Logistic Technology, LLC ( 45-4242057); QAT, Inc. (59-2876863); RMX LLC (31-096 I 359); Transport Support LLC (38-2349563); and Terminal Services LLC (91-0847582). The location of the Debtors' corporate headquarters and the Debtors' address for service of process is 2302 Parklake Drive, Bldg. 15, Ste. 600, Atlanta, Georgia 30345. respect to the Application. Pursuant to the notice filed with the Application, objections to the Application were to be filed and served no later than August 8, 2012 at 4:00p.m. (EDT). WHEREFORE, the Committee respectfully requests that the Court enter the order attached to the Application as Exhibit C, and attached hereto as Exhibit A, at the earliest convenience of the Court. Date: August 10,2012 Wilmington, Delaware SULLIVAN HAZEL TINE ALLINSON LLC Is/ William A. Hazeltine William D. Sullivan (No. 2820) William A. Hazeltine (No. 3294) 901 North Market Street, Suite 1300 Wilmington, DE 19801 Tel: (302) 428-8191 Fax: (302) 428-8195 And SIDLEY AUSTIN LLP Michael G. Burke Brian J. Lohan Dennis Kao 787 Seventh A venue New York, NY 10019 Tel: (212) 839-5300 Fax: (212) 839-5599 Matthew A. Clemente One South Dearborn Street Chicago, IL 60603 Tel: (312) 853-7000 Fax: (312) 853-7036 Attorneys for the Official Committee of Unsecured Creditors 2 Exhibit A IN THE UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE In re: Chapter 11 ALLIED SYSTEMS HOLDINGS, INC., et a!./ . Case No. 12-11564 (CSS) (Jointly Administered) Debtor. ORDER AUTHORIZING THE EMPLOYMENT AND RETENTION OF CONWAY MACKENZIE, INC. AS FINANCIAL ADVISOR TO THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS, NUNC PRO TUNC TO JUNE 25,2012 Upon consideration of the Application (the "Application") 2 of the Official Committee of Unsecured Creditors (the "Committee") of the above captioned debtors and debtors in possession (collectively, the "Debtors") seeking to retain Conway MacKenzie, Inc. ("CM") as its financial advisor in this proceeding, effective as of June 25, 2012, and upon consideration of the Turek Declaration in support of the Application; the Court having found that it has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334, venue is proper in this district pursuant to 28 U.S.C. 1409, this is a core proceeding pursuant to 28 U.S.C. 157(b); the Court having determined that the terms and conditions ofCM's employment are reasonable as required by section 328(a) of the Bankruptcy Code; the Court being satisfied that CM represents no interest materially adverse to the Debtors in the matters with respect to which CM is to be employed; and notice of the Application being sufficient; and after due deliberation and sufficient cause appearing therefor; The Debtors in these cases, along with the federal tax identification number (or Canadian business number where applicable) for each of the Debtors, are: Allied Systems Holdings, Inc. (58-0360550); Allied Automotive Group, Inc. (58-2201081); Allied Freight Broker LLC (59-2876864); Allied Systems (Canada) Company (90- 0 169283); Allied Systems, Ltd. (L.P.) (58-1710028); Axis Areta, LLC (45-5215545); Axis Canada Company (87568828); Axis Group, Inc. (58-2204628); Commercial Carriers, Inc. (38-0436930); CT Services, Inc. (38- 2918187); Cord in Transport LLC (38-1985795); F..T. Boutell Driveaway LLC (38-03651 00); GACS Incmvoratcd (58-1944786); Logistic Systems, LLC (45-4241751); Logistic Technology, LLC (45-4242057); QAT, Inc. (59-2876863); RMX LLC (31-0961359); Transport Support LLC (38-2349563); and Tenninal Services LLC (91-0847582). The location ofthe Debtors' corporate headquarters and the Debtors' address tor service of process is 2302 Parklake Drive, Bldg. 15, Ste. 600, Atlanta, Georgia 30345. Capitalized terms not otherwise defined shall have the meanings ascribed to such terms in the Application. NYI 831342lv.l IT IS HEREBY ORDERED THAT: 1. The Application is GRANTED as set forth herein, nunc pro tunc to June 25, 2012. 2. The terms ofthe Engagement Letter, attached hereto as Exhibit I, are approved in all respects, including the indemnification provisions, except as limited or modified herein. 3. Pursuant to sections 328(a) and 1103 of the Bankruptcy Code, Bankruptcy Rule 2014(a) and Local Rule 2014-1, the Committee is authorized to employ CM as its financial advisor on the terms set forth in the Engagement Letter and without the need for any further action on the part of CM or the Committee to document such retention nunc pro tunc to June 25, 2012. The Debtors are authorized to pay fees and reimburse expenses and to provide indemnification, contribution and/or reimbursement to CM on the terms and at the times specified in the Engagement Letter, nunc pro tunc to June 25, 2012. 4. All of CM 's compensation set fo11h in the Engagement Letter is approved pursuant to section 328(a) of the Bankruptcy Code and CM shall file applications for interim and final allowance of compensation and reimbursement of expenses pursuant to section 328(a) of the Bankruptcy Code in accordance with the terms of the Engagement Letter, subject to the procedures set forth in the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, and any other applicable orders of this Court. 5. The terms and conditions of this Order shall be immediately effective and enforceable upon its entry. 6. This Court shall retain jurisdiction with respect to all matters arising or related to the implementation of this Order or CM's services for the Committee. Dated: ------' 2012 THE HONORABLE CHRISTOPHER S. SONTCHI UNITED STATES BANKRUPTCY JUDGE 2 EXHIBIT 1 to the Order Engagement Letter Private & Confidential V i a E ~ m a i l Committee Chair 401 South Old Woodward Avenue, Suite 340 Birmingham, Michigan 48009 248.433.3100 1248.433.3143 FAX www. ConwayMacKenzie.com June 25, 2012 Official Committee of Unsecured Creditors of Allied Systems Holdings, Inc. Re: Engagement of Conway MacKenzie, Inc. to Provide Professional Services to the Official Committee of Unsecured Creditors Dear Sir/Madam: This letter confirms the terms and conditions of the engagement by the Official Committee of Unsecured Creditors (the "Committee") of Allied Systems Holdings, Inc., et al. ("Allied" or the "Company") of Conway MacKenzie, Inc. (collectively, "CM") to provide professional services in connection with the Committee's efforts to maximize the value of the claims of unsecured creditors of Allied given the Company's current financial distress and related insolvency proceeding. Scope of Engagement Based on confidential discussions with the Committee's legal advisors, Sidley Austin LLP, our services are contemplated to initially include, but may be subsequently modified depending upon the circumstances, new information, and at your direction, the following: Review and analysis of Allied's financial condition and the circumstances leading up to the current financial distress, current business plan, and operating metrics as a basis, in part, for evaluating the prospects for a financial recovery and viable plan of treatment for unsecured creditors. As part of the analysis, review the prospects of a successful reorganization supported, in part, by a viable business plan, access to capital, asset sales, contemplated changes in the operations, etc. such that it results in maximum recovery to the unsecured creditors; Supplement the Committee's review of the financial and cash flow projections and DIP financing terms to evaluate the risks and opportunities represented or inherent therein and the sufficiency ofthe DIP financing necessary to get to resolution of the circumstances; TURNAROUND MANAGEMENT CONSULTING. MANUFACI'URING OPERATIONS CONSULTING. INTERIM eXECUTIVE MANAGEMENT LOW COST COUNTRY SOURCING DANKRUPTCYIFIDUCIARY SERVICES. LITIGATION SUI'I'OR I & EXPERT TbSTIMUNY fORENSIC ACCOUNTING & FRAUD INVESTIGATIONS. BUSINESS VALUATIONS ECONOMIC DAMAGE CLAIM QUANTIFICATION. INVESTMENT DANKING SERVICES mmT RESTI\liCTlJRING. MERGERS & ACQUISITIONS. CAPITAL RAISING SERVICES Committee Chair June 25, 2012 Page2 Review and/or assist in the Company's analysis of potential Chapter 5 recoveries (preferential transfers, fraudulent conveyances or other). Evaluate other assets and claims available to the unsecured creditors and estimate value, if any; Review and evaluate the Rothschild Inc. ("Rothschild") sale process undertaken prior to Allied's voluntary filing and other activities used to solicit interest in the assets of Allied. Determine how comprehensive, complete or thorough the process was. Evaluate the contemplated post-petition process to be used by Rothschild to solicit capital or sell the assets ofthe Company; Assist the Committee and its counsel in developing strategies and related negotiations with Allied and other interested parties with respect to elements of Allied's treatment to the Unsecured Creditors or alternative proposals; Other items as requested by the Committee. Engagement Fees Fees for our services will be based upon the actual number of hours incurred at hourly rates ranging from $100 (paraprofessional) to $725 (senior managing director) and will be billed monthly, together with out-of-pocket expenses incurred in compliance with the Bankruptcy Court's guidelines. Hourly rates are subject to periodic adjustment. As an accommodation to the Committee's request, CM's fees, as quoted herein, are limited to $100,000 a month, plus reasonable out of pocket expenses, for the duration ofthe engagement. Notwithstanding, any fees in excess ofthe $100,000 monthly limitation can be carried into a future month ("Carry Over Fees"), provided that the total fees in that month are not greater than $100,000. Carry Over Fees can be used in any future month. To the extent that the incurred monthly fees including any Carry Over Fees are less than $100,000, then CM will only bill the amount of the incurred fees plus Carry Over Fees. For clarification, the $100,000 limitation applies only to professional fees and not any reasonable out of pocket expenses, which are not subject to any monthly limitation. A. Jeffrey Zappone, Senior Managing Director will provide oversight and engagement management with a standard billing rate of $575 per hour. Timothy A. Turek, Managing Director and John B. Pidcock, Managing Director, will be the lead consultants with standard billing rates of $565 and $465 per hour, respectively. Senior Associate and Director billing rates range from $250 to $475 an hour. In rendering its services under this engagement letter, the Committee acknowledges that CM may use professionals from its affiliate, Variant Capital Advisors LLC ("Variant Capital"). Variant Capital Managing Director and Senior Managing Director (Michael Fixler and Thomas Gordy, respectively) standard billing rates will range from $495 to $575 an hour. As a further accommodation to the Committee, CM will discount the foregoing standard hourly rates by I 0%. Approval and payment of fees will be made pursuant to the rules of the District of Delaware Bankruptcy Court. The Committee agrees to support and facilitate an expedited process to approve our retention. Access to Records In order for us to perform our services, it will be necessary for our personnel to have access to certain books, records and reports of the Company, and to have discussions with Company personnel. Accordingly, we understand that the Company has agreed to cooperate with our personnel, and to make available its personnel and fully disclose any books, records and other sources from which data can be Committee Chair June 25, 2012 Page3 obtained and that the books, records and reports of the Company are of reasonable organization and quality. Non-Audit Because of the time and scope limitations implicit in our engagement, the depth of our analysis and verification of data is significantly limited. We understand that we are not being requested to perform an audit nor apply generally accepted auditing standards or procedures. We understand that we are entitled, in general, to rely on the accuracy and validity of the data disclosed to us or supplied to us by employees and representatives of the Company. We will not, nor are we under any obligation to update data submitted to us or review any areas unless you specifically request us to do so in writing. Confidentiality It is agreed that all professional services will be performed on a confidential basis. Any information that CM requests of the Committee or the Company will be for the sole purpose of accomplishing the services as described above, and such information shall be used for no other purposes. Such information will be held in confidence and not used, disclosed to others, or in any way used by CM for any purposes other than as specifically provided for by the terms of this engagement letter. CM will restrict dissemination of any information provided or disclosed to us or to our employees and agents who have an actual need to know, and are informed by us ofthe confidential nature of the information and the obligations herein. All such information shall remain the sole property of the Committee or the Company and CM shall obtain no right of any kind to any of the information. Upon written notice, CM will promptly return all writings, records, documents and copies containing any of the confidential information. Disclosure of Pre-existing Relationships We have informed you that CM professionals may have been retained by the Company or its creditors in the past. At the present time, CM knows of no facts or circumstances that would represent a conflict of interest for it with regard to its engagement by the Committee in connection with the aforementioned services. CM continues to execute its conflict check process and to the extent conflicts are identified, we will appropriately disclose them to you. Indemnification and Limitation of Liability In consideration of our agreement to act on the Committee's behalf in connection with this engagement, the Company agrees to indemnify, hold harmless, and defend CM and certain other entities and persons as set forth on the attached Schedule 1. Termination Either the Committee or CM may terminate this engagement at any time and for any reason whatsoever provided that, if terminated by Committee for convenience or otherwise not for cause, all professional fees and expenses due, both billed and unbilled, including Carry Over Fees, up through the Committee Chair June 25, 2012 Page4 time and date of termination shall be billed to the pursuant to the guidelines of the District of Delaware Bankruptcy Court. If CM terminates or resigns, professional fees and expenses, both billed and unbilled, through the month of resignation shall be limited and billed pursuant to the $100,000 monthly cap (plus reasonable out of pocket expenses). At the end of engagement, to be defined as the last day of the month when any of the following events occurs: (a) effective date of chapter 11 plan, (b) conversion to chapter 11 to chapter 7, or (c) dismissal of the chapter 11 cases, CM will forever waive any remaining Carry Over Fees. The confidentiality, indemnification and limitation of liability provisions of this agreement shall survive termination ofCM's engagement by the Committee. Governing Law This agreement letter shall be governed by and construed in accordance with the laws of the State of Ohio without regard to such state's rules concerning conflict of laws. Severability If any term, provision or portion ofthis agreement letter shall be determined to be invalid, void or unenforceable, the remainder of the terms, provisions and portions of this agreement letter shall remain in full force and effect and shall in no way be affected, impaired or invalidated. Complete Understanding This agreement letter sets forth the entire understanding of the parties concerning the matters contained herein and supersedes all prior agreements, arrangements and communications, whether oral or written, with respect to the matters contained herein. Modification This agreement letter may not be altered, modified or changed in any manner except by a writing duly executed by the parties hereto. Notices All notices required or permitted to be delivered under this letter agreement shall be sent, if to CM, to the address set forth at the head ofthis letter, to the attention of Mr. Van E. Conway, and ifto the Committee, to the address set forth above to the attention of the Committee's Counsel, or to such other name or address as may be given in writing to the other party. All notices under this agreement letter shall be sufficient if delivered by facsimile or overnight mail. Any notice shall be deemed to be given only upon actual receipt. Acceptance of Terms and Conditions If you are in agreement with the foregoing terms of our engagement, please sign and date in acknowledgment in the space provided below and return via facsimile and via overnight mail one Committee Chair June 25, 2012 Page 5 executed original of this letter. Upon receipt of the executed engagement letter, 1vc will connnenec work immediately. We appreciate this opportunity to be ofassi.siancc to the Conunittcc and look forward to working with you in this important matter. Very truly yours, Committee Chair June 25, 2012 Page6 Above Terms Agreed to mtd Accepted: Official Cod"i'7 Creditors of Allied Systems Holdings, Inc. By: 44-&/\/----- Date: /IJ. Name: /?rc:.. J f( F$e.r {,w.r Its: Cftu; (#(If tJ '\ , Committee Chair June 25, 2012 Page 7 Schedule I In the event that CM or any of its affiliates, partners, officers, directors, shareholders, agents, employees or controlling persons (collectively, the "Indemnified Persons" and each, an "Indemnified Person") becomes involved in any capacity in any claim, action, proceeding or investigation (collectively, "Actions") brought by or against any person, including equity holders of the Company, in connection with or as a result of either CM's engagement or any matter referred to in this Agreement, the Company periodically will advance to the Indemnified Persons amounts necessary to pay their reasonable out-of-pocket legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith; provided, however, that if it is finally found (in a non-appealable judgment) by a court of competent jurisdiction that any loss, claim, judgment, damage or liability of an Indemnified Person has resulted primarily from the gross negligence or willful misconduct of such Indemnified Person in performing the services that are the subject of this Agreement, such Indemnified Person shall repay such portion of the advanced amounts that is attributable to expenses incurred in relation to the act or omission of such Indemnified Person that is the subject of such non-appealable judgment. The Company also will indemnify and hold the Indemnified Persons harmless from and against any and all losses, claims, judgments, damages or liabilities to which such Indemnified Person may become subject under any applicable law, or otherwise, that is related to, arising out of, or in connection with either CM's engagement or any matter referred to in this Agreement and without regard to the exclusive or contributory negligence of any Indemnified Person except to the extent that it is finally found (in a non-appealable judgment) that any such loss, claim, damage of liability resulted primarily from the gross negligence or willful misconduct bad faith of the Indemnified Persons in performing the services that are the subject of this Agreement. Upon receipt by an Indemnified Person of actual notice of an Action against such Indemnified Person with respect to which indemnity may be sought under this Agreement, such Indemnified Person shall promptly notify the Company in writing; provided that failure to so notify the Company shall not relieve the Company from any liability that the Company may have on account of this indemnity or otherwise, except to the extent the Company shall have been materially prejudiced by such failure. The Company shall, if requested by the Indemnified Person, assume the defense of any such Action, including the employment of counsel reasonably satisfactory to the Indemnified Person. An Indemnified Person may retain separate counsel to represent it in the defense of any Action, which shall be at the expense of the Company if (i) the Indemnified Party does not request the Company to assume the defense of any such Action or the Company does not assume the defense of the Action within a reasonable period of time after being requested to assume the defense of the Action, or (ii) the Indemnified Person is advised by counsel in writing that there is an actual or potential conflict in the Company's and the Indemnified Person's respective interests or additional defenses are available to the Indemnified Person, which makes representation by the same counsel inappropriate; provided that in no event shall the Company be obligated to pay expenses for more than one counsel in any one jurisdiction for all Indemnified Persons in connection with any Action. No Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company or its equity holders or creditors related to, arising out of, or in connection with, advise or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement, the transactions contemplated in this Agreement or any Indemnified Person's actions or inactions in connection with any such advice, services or transactions except to the extent any loss, claim, judgment, damage or liability is finally found (in a non-appealable judgment) by a court of competent jurisdiction to have resulted from the Indemnified Person's gross negligence or willful misconduct. If for any reason the foregoing indemnification is unavailable to an Indemnified Person or insufficient to hold it harmless, then the Company shall contribute to the amount paid or payable by the Indemnified Person as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect (i) the relative economic benefits to the Company and its equity holders, on the one hand, and to the Indemnified Persons, on the other hand, ofthe matters covered by this engagement; or (ii) if the allocation provided by the immediately preceding clause is not permitted by applicable law, not only such relative economic benefits but also the relative fault of the Company, on the one hand, and the Indemnified Persons, on the other hand, with respect to such loss, claim, damage or liability and any other relevant equitable considerations. For purposes of this paragraph, the relative economic benefits to Committee Chair June 25, 2012 Page 8 the Indemnified Persons of the matters contemplated in this Agreement, shall be deemed to be the fees paid or to be paid to CM under this Agreement; provided, however, that, to the extent permitted by applicable law, in no event shall the Indemnified Persons be required to contribute an aggregate amount in excess of the aggregate fees actually paid to CM under this Agreement. The reimbursement, indemnity and contribution obligations of the Company in this Schedule I shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to any afflliate of the Indemnified Persons, and shall be binding upon and inure to the benefit of any successors, heirs and personal representatives of the Company, the Indemnified Persons, any such affiliate and any such person. The Company shall not be required to indemnify an Indemnified Person for any amount paid or payable by the Indemnified Person in the settlement of any action, proceeding or investigation without the written consent of the Company, which consent shall not be unreasonably withheld. Prior to entering into any agreement or arrangement with respect to, or effecting, any proposed sale, exchange, dividend or other distribution or liquidation of all or a significant portion of its assets in one of a series of transactions or any significant recapitalization or reclassification of its outstanding securities that does not directly or indirectly provide for the assumption of the obligations of the Company set forth in this Schedule I, the Company will notify CM in writing thereof (if not previously so notified) and, if requested by CM, shall arrange in connection therewith alternative means of providing for the obligations of the Company set forth in this Schedule I, including the assumption of such obligations by another party, insurance, surety bonds or the creation of an escrow, in each case in an amount and upon terms and conditions reasonably satisfactory to CM.
Assured of Payment, (B) Prohibiting Utilities From Altering, Refusing, or Discontinuing Services, and (C) Establishing Procedures For Resolving Requests For Additional Assurance