(proposed) interim order authorizing the debtors to
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION In re: ARMSTRONG ENERGY, INC., et al.,
Debtors.
) ) ) ) ) ) ) )
Case No. 17-47541-659 CHAPTER 11 (Joint Administration Requested) Related Docket No. 18
INTERIM ORDER AUTHORIZING THE DEBTORS TO (I) CONTINUE INSURANCE COVERAGE ENTERED INTO PREPETITION AND SATISFY PREPETITION OBLIGATIONS RELATED THERETO, (II) RENEW, AMEND, SUPPLEMENT, EXTEND, OR PURCHASE INSURANCE POLICIES, (III) HONOR THE TERMS OF THE PREMIUM FINANCING AGREEMENT AND PAY PREMIUMS THEREUNDER, (IV) ENTER INTO NEW PREMIUM FINANCING AGREEMENTS IN THE ORDINARY COURSE OF BUSINESS, AND (V) GRANTING RELATED RELIEF Upon the motion (the “Motion”) 1 of the above-captioned debtors and debtors in possession (collectively, the “Debtors”) for entry of an interim order (this ”Interim Order”), to (a) continue insurance coverage entered into prepetition and satisfy prepetition obligations related thereto, (b) renew, amend, supplement, extend, or purchase insurance policies, (c) honor the terms of the premium financing agreement and pay premiums thereunder, (d) enter into new premium financing agreements in the ordinary course of business, and (e) granting related relief, all as more fully set forth in the Motion; and upon the First Day Declaration; and this Court having jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and Rule 81.901(B)(1) of the Local Rules of the United States District Court for the Eastern District of Missouri; and that this Court may enter a final order consistent with Article III of the United States Constitution; and this Court having found that venue of this proceeding and the Motion in 1
Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Motion.
KE 47904513
this district is proper pursuant to 28 U.S.C. §§ 1408 and 1409; and this Court having found that the Debtors’ notice of the Motion and opportunity for a hearing on the Motion were appropriate under the circumstances and no other notice need be provided; and this Court having reviewed the Motion and having heard the statements in support of the relief requested therein at a hearing before this Court (the “Hearing”); and this Court having determined that the legal and factual bases set forth in the Motion and at the Hearing establish just cause for the relief granted herein; and upon all of the proceedings had before this Court; and after due deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED THAT: 1.
The Motion is granted on an interim basis as set forth herein.
2.
The final hearing (the “Final Hearing”) on the Motion shall be held on
_________, 2017, at__:__ _.m., prevailing Central Time. Any objections or responses to entry of a final order on the Motion shall be filed on or before 4:00 p.m., prevailing Central Time, on _________, 2017, and shall be served on: (a) the Debtors, Armstrong Energy, Inc., 7733 Forsyth Boulevard, Suite 1625, St. Louis, Missouri 63105, Attn: Eric Waller; (b) proposed counsel to the Debtors, Kirkland & Ellis LLP, 300 North LaSalle, Chicago, Illinois 60654, Attn: Will Guerrieri and Travis M. Bayer; (c) proposed co-counsel to the Debtors, Armstrong Teasdale LLP, 7700 Forsyth Boulevard, Suite 1800, St. Louis, Missouri 63105, Attn: Richard W. Engel, Jr.; (d) counsel to the indenture trustee under the Debtors’ 11.75% senior secured notes due 2019, Loeb & Loeb LLP, 345 Park Avenue, New York, New York 10154, Attn: Vadim J. Rubenstein; (e) counsel to the ad hoc group of holders of the Debtors’ 11.75% senior secured notes due 2019, Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York, New York 10019-6064, Attn: Brian S. Hermann and Elizabeth R. McColm; (f) co-counsel to the ad hoc group of holders of the Debtors’ 11.75% senior secured notes due 2019, Carmody 2
MacDonald P.C., 120 South Central Avenue, Suite 1800, St. Louis, Missouri 63105, Attn: Christopher J. Lawhorn; (g) counsel to any statutory committee appointed in these cases; and (h) Office of The United States Trustee, 1111 South 10th Street, Room 6353, St. Louis Missouri, 63102, Attn: [___], Esq. In the event no objections to entry of a final order on the Motion are timely received, this Court may enter such final order without need for the Final Hearing. 3.
The Debtors are authorized to continue the Insurance Policies, including, but not
limited to those identified on Exhibit A to the Motion, 2 and, in their sole discretion, pay any prepetition or postpetition obligations related to the Insurance Policies, including, without limitation, any amounts owed to the Brokers. 4.
The Debtors are authorized to renew, amend, supplement, extend, or purchase
insurance policies in the ordinary course of business to the extent that the Debtors determine, in consultation with the Ad Hoc Group (which consultation shall be in advance to the extent commercially practicable), that such action is in the best interest of their estates. 5.
The Debtors are authorized, but not directed, to honor the terms of the
Premium Financing Agreement attached to the Motion as Exhibit B, including the grant of any security interest therein and the payment of any premiums thereunder, to renew the Premium Financing Agreement, and, with reasonable prior notice to the Ad Hoc Group, to enter into new premium financing agreements in the ordinary course of business; provided that pending entry of the Final Order, the Debtors’ payments on account of prepetition Premium Financing obligations shall not exceed $1,000,000. 6.
The Debtors are authorized, but not directed, to honor any amounts owed on
account of any Insurance Policy Audits in the ordinary course of business. 2
For the avoidance of doubt, Insurance Policies shall include all insurance policies, whether current or expired, and any agreements related thereto.
3
7.
The banks and financial institutions on which checks were drawn or electronic
payment requests made in payment of the prepetition obligations approved herein are authorized and directed to receive, process, honor, and pay all such checks and electronic payment requests when presented for payment, and all such banks and financial institutions are authorized to rely on the Debtors’ designation of any particular check or electronic payment request as approved by this Order. 8.
The Debtors are authorized to issue postpetition checks, or to effect postpetition
fund transfer requests, in replacement of any checks or fund transfer requests that are dishonored as a consequence of these chapter 11 cases with respect to prepetition amounts owed in connection with any Insurance Policies. 9.
Notwithstanding the relief granted in this Interim Order and any actions taken
pursuant to such relief, nothing contained in the Motion, this Interim Order or any payment made pursuant to the Interim Order shall be deemed: (a) an admission as to the validity of any prepetition claim against a Debtor entity; (b) a waiver of the Debtors’ right to dispute any prepetition claim on any grounds; (c) a promise or requirement to pay any prepetition claim; (d) an implication or admission that any particular claim is of a type specified or defined in this Interim Order or the Motion; (e) a request or authorization to assume any prepetition agreement, contract, or lease pursuant to section 365 of the Bankruptcy Code; (f) a waiver or limitation of the Debtors’ rights under the Bankruptcy Code or any other applicable law; or (g) a concession by the Debtors that any liens (contractual, common law, statutory, or otherwise) satisfied pursuant to the Motion are valid, and the Debtors expressly reserve their rights to contest the extent, validity, or perfection or seek avoidance of all such liens. 10.
Notwithstanding anything to the contrary contained herein, any payment to be 4
made or relief or authorization granted hereunder shall be subject to any applicable requirements imposed on the Debtors under any order authorizing the Debtors to use cash collateral (the “Cash Collateral Order”), and any such payment shall be in accordance with the Budget (as defined in the Cash Collateral Order) in effect in connection with the Cash Collateral Order (subject to Permitted Deviations and Non-Conforming Uses, each as defined in the Cash Collateral Order). To the extent that there is any conflict between this Interim Order and the Cash Collateral Order, the terms of the Cash Collateral Order shall govern. 11.
Notwithstanding the relief granted herein and any actions taken hereunder,
nothing contained in the Motion or this Interim Order or any payment made pursuant to this Interim Order shall constitute, nor is it intended to constitute, an admission as to the validity or priority of any claim or lien against the Debtors, a waiver of the Debtors’ rights to subsequently dispute such claim or lien, or the assumption or adoption of any agreement, contract, or lease under section 365 of the Bankruptcy Code. 12.
The contents of the Motion satisfy the requirements of Bankruptcy Rule 6003(b).
13.
Notice of the Motion as provided therein shall be deemed good and sufficient
notice of such Motion and the requirements of Bankruptcy Rule 6004(a) and the Local Rules are satisfied by such notice. 14.
Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this
Interim Order are immediately effective and enforceable upon its entry. 15.
No later than two business days after entry of this Order, the Debtors shall serve a
copy of this Order on the Notice Parties and shall file a certificate of service no later than 24 hours after service.
5
Dated: __________, 2017 St. Louis, Missouri
KATHY A. SURRATT-STATES Chief United States Bankruptcy Judge
Order Prepared By: Richard W. Engel, Jr., MO 34641 Erin M. Edelman, MO 67374 John G. Willard, MO 67049 ARMSTRONG TEASDALE LLP 7700 Forsyth Boulevard, Suite 1800 St. Louis, Missouri 63105 Telephone: (314) 621-5070 Facsimile: (314) 621-2239 Email: [email protected] Email: [email protected] Email: [email protected] James H.M. Sprayregen, P.C. Ross M. Kwasteniet, P.C. (pro hac vice pending) William A. Guerrieri (pro hac vice pending) Travis M. Bayer (pro hac vice pending) KIRKLAND & ELLIS LLP KIRKLAND & ELLIS INTERNATIONAL LLP 300 North LaSalle Chicago, Illinois 60654 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Jonathan S. Henes, P.C. (pro hac vice pending) KIRKLAND & ELLIS LLP KIRKLAND & ELLIS INTERNATIONAL LLP 601 Lexington Avenue New York, New York 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 Email: [email protected] Proposed Counsel to the Debtors
6
Debtors.
) ) ) ) ) ) ) )
Case No. 17-47541-659 CHAPTER 11 (Joint Administration Requested) Related Docket No. 18
INTERIM ORDER AUTHORIZING THE DEBTORS TO (I) CONTINUE INSURANCE COVERAGE ENTERED INTO PREPETITION AND SATISFY PREPETITION OBLIGATIONS RELATED THERETO, (II) RENEW, AMEND, SUPPLEMENT, EXTEND, OR PURCHASE INSURANCE POLICIES, (III) HONOR THE TERMS OF THE PREMIUM FINANCING AGREEMENT AND PAY PREMIUMS THEREUNDER, (IV) ENTER INTO NEW PREMIUM FINANCING AGREEMENTS IN THE ORDINARY COURSE OF BUSINESS, AND (V) GRANTING RELATED RELIEF Upon the motion (the “Motion”) 1 of the above-captioned debtors and debtors in possession (collectively, the “Debtors”) for entry of an interim order (this ”Interim Order”), to (a) continue insurance coverage entered into prepetition and satisfy prepetition obligations related thereto, (b) renew, amend, supplement, extend, or purchase insurance policies, (c) honor the terms of the premium financing agreement and pay premiums thereunder, (d) enter into new premium financing agreements in the ordinary course of business, and (e) granting related relief, all as more fully set forth in the Motion; and upon the First Day Declaration; and this Court having jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and Rule 81.901(B)(1) of the Local Rules of the United States District Court for the Eastern District of Missouri; and that this Court may enter a final order consistent with Article III of the United States Constitution; and this Court having found that venue of this proceeding and the Motion in 1
Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Motion.
KE 47904513
this district is proper pursuant to 28 U.S.C. §§ 1408 and 1409; and this Court having found that the Debtors’ notice of the Motion and opportunity for a hearing on the Motion were appropriate under the circumstances and no other notice need be provided; and this Court having reviewed the Motion and having heard the statements in support of the relief requested therein at a hearing before this Court (the “Hearing”); and this Court having determined that the legal and factual bases set forth in the Motion and at the Hearing establish just cause for the relief granted herein; and upon all of the proceedings had before this Court; and after due deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED THAT: 1.
The Motion is granted on an interim basis as set forth herein.
2.
The final hearing (the “Final Hearing”) on the Motion shall be held on
_________, 2017, at__:__ _.m., prevailing Central Time. Any objections or responses to entry of a final order on the Motion shall be filed on or before 4:00 p.m., prevailing Central Time, on _________, 2017, and shall be served on: (a) the Debtors, Armstrong Energy, Inc., 7733 Forsyth Boulevard, Suite 1625, St. Louis, Missouri 63105, Attn: Eric Waller; (b) proposed counsel to the Debtors, Kirkland & Ellis LLP, 300 North LaSalle, Chicago, Illinois 60654, Attn: Will Guerrieri and Travis M. Bayer; (c) proposed co-counsel to the Debtors, Armstrong Teasdale LLP, 7700 Forsyth Boulevard, Suite 1800, St. Louis, Missouri 63105, Attn: Richard W. Engel, Jr.; (d) counsel to the indenture trustee under the Debtors’ 11.75% senior secured notes due 2019, Loeb & Loeb LLP, 345 Park Avenue, New York, New York 10154, Attn: Vadim J. Rubenstein; (e) counsel to the ad hoc group of holders of the Debtors’ 11.75% senior secured notes due 2019, Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York, New York 10019-6064, Attn: Brian S. Hermann and Elizabeth R. McColm; (f) co-counsel to the ad hoc group of holders of the Debtors’ 11.75% senior secured notes due 2019, Carmody 2
MacDonald P.C., 120 South Central Avenue, Suite 1800, St. Louis, Missouri 63105, Attn: Christopher J. Lawhorn; (g) counsel to any statutory committee appointed in these cases; and (h) Office of The United States Trustee, 1111 South 10th Street, Room 6353, St. Louis Missouri, 63102, Attn: [___], Esq. In the event no objections to entry of a final order on the Motion are timely received, this Court may enter such final order without need for the Final Hearing. 3.
The Debtors are authorized to continue the Insurance Policies, including, but not
limited to those identified on Exhibit A to the Motion, 2 and, in their sole discretion, pay any prepetition or postpetition obligations related to the Insurance Policies, including, without limitation, any amounts owed to the Brokers. 4.
The Debtors are authorized to renew, amend, supplement, extend, or purchase
insurance policies in the ordinary course of business to the extent that the Debtors determine, in consultation with the Ad Hoc Group (which consultation shall be in advance to the extent commercially practicable), that such action is in the best interest of their estates. 5.
The Debtors are authorized, but not directed, to honor the terms of the
Premium Financing Agreement attached to the Motion as Exhibit B, including the grant of any security interest therein and the payment of any premiums thereunder, to renew the Premium Financing Agreement, and, with reasonable prior notice to the Ad Hoc Group, to enter into new premium financing agreements in the ordinary course of business; provided that pending entry of the Final Order, the Debtors’ payments on account of prepetition Premium Financing obligations shall not exceed $1,000,000. 6.
The Debtors are authorized, but not directed, to honor any amounts owed on
account of any Insurance Policy Audits in the ordinary course of business. 2
For the avoidance of doubt, Insurance Policies shall include all insurance policies, whether current or expired, and any agreements related thereto.
3
7.
The banks and financial institutions on which checks were drawn or electronic
payment requests made in payment of the prepetition obligations approved herein are authorized and directed to receive, process, honor, and pay all such checks and electronic payment requests when presented for payment, and all such banks and financial institutions are authorized to rely on the Debtors’ designation of any particular check or electronic payment request as approved by this Order. 8.
The Debtors are authorized to issue postpetition checks, or to effect postpetition
fund transfer requests, in replacement of any checks or fund transfer requests that are dishonored as a consequence of these chapter 11 cases with respect to prepetition amounts owed in connection with any Insurance Policies. 9.
Notwithstanding the relief granted in this Interim Order and any actions taken
pursuant to such relief, nothing contained in the Motion, this Interim Order or any payment made pursuant to the Interim Order shall be deemed: (a) an admission as to the validity of any prepetition claim against a Debtor entity; (b) a waiver of the Debtors’ right to dispute any prepetition claim on any grounds; (c) a promise or requirement to pay any prepetition claim; (d) an implication or admission that any particular claim is of a type specified or defined in this Interim Order or the Motion; (e) a request or authorization to assume any prepetition agreement, contract, or lease pursuant to section 365 of the Bankruptcy Code; (f) a waiver or limitation of the Debtors’ rights under the Bankruptcy Code or any other applicable law; or (g) a concession by the Debtors that any liens (contractual, common law, statutory, or otherwise) satisfied pursuant to the Motion are valid, and the Debtors expressly reserve their rights to contest the extent, validity, or perfection or seek avoidance of all such liens. 10.
Notwithstanding anything to the contrary contained herein, any payment to be 4
made or relief or authorization granted hereunder shall be subject to any applicable requirements imposed on the Debtors under any order authorizing the Debtors to use cash collateral (the “Cash Collateral Order”), and any such payment shall be in accordance with the Budget (as defined in the Cash Collateral Order) in effect in connection with the Cash Collateral Order (subject to Permitted Deviations and Non-Conforming Uses, each as defined in the Cash Collateral Order). To the extent that there is any conflict between this Interim Order and the Cash Collateral Order, the terms of the Cash Collateral Order shall govern. 11.
Notwithstanding the relief granted herein and any actions taken hereunder,
nothing contained in the Motion or this Interim Order or any payment made pursuant to this Interim Order shall constitute, nor is it intended to constitute, an admission as to the validity or priority of any claim or lien against the Debtors, a waiver of the Debtors’ rights to subsequently dispute such claim or lien, or the assumption or adoption of any agreement, contract, or lease under section 365 of the Bankruptcy Code. 12.
The contents of the Motion satisfy the requirements of Bankruptcy Rule 6003(b).
13.
Notice of the Motion as provided therein shall be deemed good and sufficient
notice of such Motion and the requirements of Bankruptcy Rule 6004(a) and the Local Rules are satisfied by such notice. 14.
Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this
Interim Order are immediately effective and enforceable upon its entry. 15.
No later than two business days after entry of this Order, the Debtors shall serve a
copy of this Order on the Notice Parties and shall file a certificate of service no later than 24 hours after service.
5
Dated: __________, 2017 St. Louis, Missouri
KATHY A. SURRATT-STATES Chief United States Bankruptcy Judge
Order Prepared By: Richard W. Engel, Jr., MO 34641 Erin M. Edelman, MO 67374 John G. Willard, MO 67049 ARMSTRONG TEASDALE LLP 7700 Forsyth Boulevard, Suite 1800 St. Louis, Missouri 63105 Telephone: (314) 621-5070 Facsimile: (314) 621-2239 Email: [email protected] Email: [email protected] Email: [email protected] James H.M. Sprayregen, P.C. Ross M. Kwasteniet, P.C. (pro hac vice pending) William A. Guerrieri (pro hac vice pending) Travis M. Bayer (pro hac vice pending) KIRKLAND & ELLIS LLP KIRKLAND & ELLIS INTERNATIONAL LLP 300 North LaSalle Chicago, Illinois 60654 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Jonathan S. Henes, P.C. (pro hac vice pending) KIRKLAND & ELLIS LLP KIRKLAND & ELLIS INTERNATIONAL LLP 601 Lexington Avenue New York, New York 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 Email: [email protected] Proposed Counsel to the Debtors
6
