In Re:) : Debtors.)
In Re:) : Debtors.)
In Re:) : Debtors.)
In re: )
)
)
Debtors. )
CERTIFICATION OF COUNSEL WITH RESPECT TO ORDER AUTHORIZING THE EMPLOYMENT AND RETENTION OF ALBRECHT & ASSOCIATES, INC. AS AGENT FOR PACIFIC ENERGY RESOURCES LTD. AND PACIFIC ENERGY ALASKA OPERATING, LLC NUNC PRO TUNC TO THE PETITION DATE
On March 9,2009, Pacific Energy Resources Ltd, et al. (the "Debtors") fied the
Debtors' Application Pursuant to 11 Us. C. 327(a) and 328(a) For An order Authorizing The
Employment of Albrecht & Associates, Inc., As Agent For Pacifc Energy Resources LTD, and
Pacifc Energy Alaska Operating, LLC nunc pro tunc to the Petition Date (Docket No.9) (the
"Application").
In response thereto, the Offcial Committee of
"Committee") and the U.S. Trustee (the "Trustee") provided informal comments. The Debtors
have resolved the concerns of
the Committee and the U.S. Trustee and have revised the language
in the proposed order. A copy of the revised proposed order is attached hereto as Exhibit A,
which has been agreed to by the parties. A blackline copy of the order is attached hereto as
Exhibit B.
The Debtors respectfully request that the Cour enter the attached form of
proposed revised order at its earliest convenience.
the Debtors' federal tax identification number, are: Pacific Energy Resources Ltd. (3442); Petrocal Acquisition Corp. (6249); Pacific Energy Alaska Holdings, LLC (tax I.D. # not available); Cameros Acquisition Corp. (5866); Pacific Energy Alaska Operating LLC (7021); San Pedro Bay Pipeline Company the Debtors is 111 W. Ocean (1234); Cameros Energy, Inc. (9487); and Gotland Oil, Inc. (5463). The mailing address for all of Boulevard, Suite 1240, Long Beach, CA 90802.
i The Debtors in these cases, along with the last four digits of each of
Should the Cour have any questions regarding the proposed revised order, the
Debtors stand ready to respond.
Dated: May 13, 2009
Kathleen P. Makowski (DE Bar No. 3648) 919 North Market Street, 1 ih Floor P.O. Box 8705 Wilmington, DE 19899-8705
Telephone: 302/652-4100
Facsimile: 310/652-4400
Email: ljones~pszjlaw.com
EXHIBIT A
DOCS_DE:148130.1
In re: )
Chapter 11
Debtors. ))
ORDER GRATING APPLICATION OF DEBTORS PURSUANT TO 11 U.S.C. 327(A) AND 328(A) FOR AN ORDER AUTHORIZING THE EMPLOYMENT OF ALBRECHT & ASSOCIATES, INC. AS AGENT FOR PACIFIC ENERGY RESOURCES LTD. AND PACIFIC ENERGY ALASKA OPERATING, LLC NUNC PRO TUNC TO THE PETITION DATE
This matter coming to be heard on the Debtors' Application for Order
Authorizing the Employment of Albrecht & Associates, Inc. ("Albrecht") as Agent for Pacific
Energy Resources, Ltd. and Pacific Energy Alaska Operating, LLC , Nunc Pro Tunc to the
Petition Date (the "Application,,2), fied by the Debtors, the Court having reviewed the
Application, the Commission and Agency Agreement, as amended by the Amendment to
Commission and Agency Agreement dated April
and PEAO and Albrecht (the "Agency Agreement"), and the Affdavit of
"Willams Affdavit"); the Court finding that: (a) the Court has jurisdiction over this matter
pursuant to 28 U.S.C. 1334; (b) notice ofthe Application and the hearing on the Application
was suffcient under the circumstances; (c) the Court having determined that Albrecht is a
i The Debtors in these cases, along with the last four digits of each of the Debtors' federal tax identification
number, are: Pacific Energy Resources Ltd. (3442); Petrocal Acquisition Corp. (6249); Pacific Energy Alaska Holdings, LLC (tax I.D. # not available); Cameros Acquisition Corp. (5866); Pacific Energy Alaska Operating LLC (7021); San Pedro Bay Pipeline Company (1234); Cameros Energy, Inc. (9487); and Gotland Oil, Inc. (5463). The mailing address for all of the Debtors is 111 W. Ocean Boulevard, Suite 1240, Long Beach, CA 90802. 2 Capitalized terms not otherwise defined herein have the meanings given to them in the Application.
DOCS_DE:148133.1
determined that the legal and factual bases set forth in the Application and the Wiliams
Affdavit establish just cause for the relief granted herein; it is hereby
ORDERED that the Application shall be, and hereby is, GRANTED, as modified
2016 and 5002 and the terms set forth in the Application and the Agency Agreement, as amended by the Amendment and as further modified below (hereinafter referred to as the
Amended Agency Agreement), nunc pro tunc to the Petition Date; and it is further
Albrecht's fee in these cases is approved pursuant to Bankptcy Code section 328(a); and it is
further
ORDERED, that, notwithstanding anything to the contrary in this Order, the U.S.
Trustee shall retain the right and be entitled to object to the fee provided for in the Amended
Agency Agreement on the reasonableness standard under Bankptcy Code sections 330 and
331. The Debtors and Albrecht further stipulate and agree that this Order and the record relating
to the Court's consideration of
Bankptcy Code sections 330 and 331. Accordingly, nothing in this Order or the record shall
2
0000 I -00 I \DOCS_DE: 145608.2
DOCS_DE:
148133.1
constitute a finding of
reimbursement pursuant to the Amended Agency Agreement for services other than those described in the Amended Agency Agreement, unless such services and indemnification therefore are approved by the Court;
b. The Debtors shall have no obligation to indemnify Albrecht, or
provide contribution or reimbursement to Albrecht, for any claim or expense that is either: (i) judicially determined (the determination having become final) to have arisen from Albrecht's bad faith, selfdealing, breach of fiduciary duty (if any), wilful misconduct or gross negligence; (ii) for a contractual dispute in which the Debtors allege the breach of Albrecht's contractual obligations unless the Court determines that indemnification, contribution or reimbursement would be permissible pursuant to In re United Artists Theatre Co., 315 F.3d 217 judicial determination as to the (3d Cir. 2003); or (iii) settled prior to a exclusions set forth in clauses (i) and (ii) above, but determined by the Court, after notice and a hearing to be a claim or expense for which Albrecht should not receive indemnity, contribution or reimbursement under the terms of the Amended Agency Agreement as modified by this Order; and
c. If, before the earlier of (i) the entr of an order confirming a
chapter 11 plan in these cases (that order having become a final order no longer subject to appeal), and (ii) the entry of an order closing these chapter 11 cases, Albrecht believes that it is entitled to the payment of any amounts by the Debtors on account of the Debtors' indemnification, contribution and/or reimbursement obligations under the Amended Agency Agreement (as modified by this Order), including without limitation the advancement of defense costs, Albrecht must fie an application therefore in this Court, and the Debtors may not pay any
3
0000 1-00 DOCS_DE:
such amounts to Albrecht before the entr of an order by this Court approving the payment. This subparagraph (c) is intended only to specify the period of time under which the Court shall have jurisdiction over any request for fees and expenses by Albrecht for indemnification, contribution or reimbursement, and not a provision limiting the duration of the Debtors' obligation to indemnify Albrecht. All parties in interest shall retain the right to object to any demand by Albrecht for indemnification, contribution or reimbursement;
and it is further
misconduct, no fee wil be payable pursuant to any Sale Transaction executed following such
termination; and it is further
ORDERED that notwithstanding anything to the contrary in the Agency
ultimately enter into an Existing Stakeholders Deal, such transaction shall be deemed to be a sale
and Albrecht shall be paid its Fee, as that term is defined is section 4 of
the Agreement, on
4
0000 I -00 I \DOCS_DE: 145608.2
DOCS_DE:148133.1
ORDERED that the Committee and the DIP Lenders shall have the ability, prior
to the payment of any Fee pursuant to the immediately preceding "ORDERED" paragraph, to
objet to the determination that a third-part offer is "bona-fide" and nothing contained in this
Order shall be deemed to waive such right to object; and it is further
ORDERED that nothing in this Order shall be deemed to affect any and all rights
that the Committee or any part-in-interest may have to seek avoidance, pursuant to Chapter 5 of
the Bankptcy Code, of any prepetition payments made by the Debtors to Albrecht, and all such
rights are hereby expressly preserved; and it is further
ORDERED that Paragraph 10 of
that Albrecht, at the direction of the Debtors, can provide reasonable access to information
related to the sale process to the Debtors' lenders; and it is further
ORDERED that this Court shall retain jurisdiction to hear and determine all
5
00001-001\DOCS_DE: 145608.2 DOCS_DE: 148133.1
EXHIBIT B
DOCS_DE: 148130. I
In re: )
Chapter 11
) )
Debtors. )
ORDER GRANTING APPLICATION OF DEBTORS PURSUANT TO 11 U.S.C. 327(A) AN 328(A) FOR AN ORDER AUTHORIZING THE EMPLOYMENT OF ALBRECHT & ASSOCIATES, INC. AS AGENT FOR PACIFIC ENERGY RESOURCES LTD. AND PACIFIC ENERGY ALASKA OPERATING, LLC NUNC PRO TUNC TO THE PETITION DATE
This matter coming to be heard on the Debtors' Application for Order
Authorizing the Employment of Albrecht & Associates, Inc. ("Albrecht") as Agent for Pacific
Energy Resources, Ltd. and Pacific Energy Alaska Operating, LLC , Nunc Pro Tunc to the
Petition Date (the "Application,,2), fied by the Debtors, the Court having reviewed the
Application, the Commission and Agency Agreement, as amended by the Amendment to
Commission and Agency Agreement dated April
and PEAO and Albrecht (the "Agency Agreement"), and the Affdavit of
"Wiliams Affdavit"); the Court finding that: (a) the Court has jurisdiction over this matter
pursuant to 28 U.S.C. 1334; (b) notice of
I The Debtors in these cases, along with the last four digits of each of the Debtors' federal tax identification
number, are: Pacific Energy Resources Ltd. (3442); Petrocal Acquisition Corp. (6249); Pacific Energy Alaska Holdings, LLC (tax J.D. # not available); Cameros Acquisition Corp. (5866); Pacific Energy Alaska Operating LLC (7021); San Pedro Bay Pipeline Company (1234); Cameros Energy, Inc. (9487); and Gotland Oil, Inc. (5463). The
mailing address for all of
the Debtors is 111 W. Ocean Boulevard, Suite 1240, Long Beach, CA 90802.
2 Capitalized terms not otherwise defined herein have the meanings given to them in the Application.
DOCS_LA:~20i580 6
was sufficient under the circumstances; (c) the Court having determined that Albrecht is a
"disinterested person" pursuant to 101(14) of
determined that the legal and factual bases set forth in the Application and the Wiliams
Affdavit establish just cause for the relief granted herein; it is hereby
ORDERED that the Application shall be, and hereby is, GRANTED, as modified
agent for PERL for the sale of the Properties at the expense of the chapter 11 estates,
pursuant to sections 327(a) and 328(a) of
2016 and 5002 and the terms set forth in the Application and the Agency Agreement, as amended by the Amendment and as further modified below (hereinafter referred to as the
Amended Agency Agreement), nunc pro tunc to the Petition Date; and it is further
ORDERED, that, subject to the following "ORDERED" paragraph of
this Order,
Albrecht's fee in these cases is approved pursuant to Bankptcy Code section 328(a); and it is
further
ORDERED, that, notwithstanding anything to the contrary in this Order, the u.s.
Trustee shall retain the right and be entitled to object to the fee provided for in the Amended
Agency Agreement on the reasonableness standard under Bankptcy Code sections 330 and
331. The Debtors and Albrecht further stipulate and agree that this Order and the record relating
to the Court's consideration of
of
Bankptcy Code sections 330 and 331. Accordingly, nothing in this Order or the record shall
2
0000 I -00 I \DOCS _DE: 145608.2
DOCS_LA:~201580 6
constitute a finding of fact or conclusion of law binding on the U.S. Trustee, on appeal or otherwise, with respect to the reasonableness of Albrecht's compensation; and it is further
ORDERED that Albrecht shall be excused from maintaining time records in
connection with the services to be rendered pursuant to the Amended Agency Agreement.
Nonetheless, Albrecht wil keep records in summary form of
reimbursement pursuant to the Amended Agency Agreement for services other than those described in the Amended Agency Agreement, unless such services and indemnification therefore are approved by the Court;
b. The Debtors shall have no obligation to indemnify Albrecht, or
provide contribution or reimbursement to Albrecht, for any claim or expense that is either: (i) judicially determined (the determination having become final) to have arisen from Albrecht's bad faith, selfdealing, breach of fiduciary duty (if any), wilful misconduct or gross negligence; (ii) for a contractual dispute in which the Debtors allege the breach of Albrecht's contractual obligations unless the Court determines that indemnification, contribution or reimbursement would be
permissible pursuant to In re United Artists Theatre Co., 315 F .3d 217
(3d Cir. 2003); or (iii) settled prior to ajudicial determination as to the exclusions set forth in clauses (i) and (ii) above, but determined by the Court, after notice and a hearing to be a claim or expense for which Albrecht should not receive indemnity, contribution or reimbursement under the terms of the Amended Agency Agreement as modified by this Order; and
c. If, before the earlier of (i) the entr of an order confirming a
chapter 11 plan in these cases (that order having become a final order no longer subject to appeal), and (ii) the entry of an order closing these chapter 11 cases, Albrecht believes that it is. entitled to the payment of any amounts by the Debtors on account of the Debtors' indemnification, contribution and/or reimbursement obligations under the Amended Agency Agreement (as modified by this Order), including without limitation the advancement of defense costs, Albrecht must fie an application therefore in this Court, and the Debtors may not pay any
3
0000 I -00 I \DOCS_DE: 145608.2
DOCS_LA:;U~20i580 6
such amounts to Albrecht before the entr of an order by this Court approving the payment. This subparagraph (c) is intended only to specify the period of time under which the Cour shall have jurisdiction over any request for fees and expenses by Albrecht for indemnification, contribution or reimbursement, and not a provision limiting the duration of the Debtors' obligation to indemnify Albrecht. All parties in interest shall retain the right to object to any demand by Albrecht for indemnification, contrbution or reimbursement;
and it is further
in the Amended Agency Agreement, or any agreements incorporated by reference therein, the Amended Agency Agreement, shall be modified hereby to delete such provision or provisions
misconduct, no fee wil be payable pursuant to any Sale Transaction executed following such
termination; and it is further
ORDERED that notwithstanding anything to the contrary in the Agency
and Albrecht shall be paid its Fee, as that term is defined is section 4 ofthe Agreement, on
consummation thereof."; and it is further
4
0000 I -00 I \DOCS _DE: 145608.2
DOCS_LA:~B20i580 6
ORDERED that the Committee and the DIP Lenders shall have the ability. Drior
to the Davment of anv Fee Dursuant to the immediatelv orecedinl! "ORDERED" Daral!raDh. to
obiet to the determination that a third-Dart offer is "bona-fide" and nothinl! contained in this
Order shall be deemed to waive such ril!ht to obiect: and it is further
ORDERED that nothing in this Order shall be deemed to affect any and all rights
that the Committee or any part-in-interest may have to seek avoidance, pursuant to Chapter 5 of
the Bankptcy Code, of any prepetition payments made by the Debtors to Albrecht, and all such
rights are hereby expressly preserved; and it is further
ORDERED that Paragraph 10 of
that Albrecht, at the direction of the Debtors, can provide reasonable access to information related to the sale process to the Debtors' lenders; and it is further
ORDERED that this Court shall retain
5
0000 I -00 I \DOCS_DE: 145608.2
DOCS_LA:~201580 6
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