case 18-10122-kg doc 197 filed 02/23/18 page 1 of 3each ocp's declaration of disinterestedness...

IN T~-IE UNITED STATES BANKRU

PTCY COURT

FQR TI-IE DISTRICT OF DELAWA

RE

In re:

PES HOLDINGS, LLC, et al.,'

Debtors.

Chapter l'1

Case No. 18-1 Q 122 {KG)

(Jointly Administered)

Re: Docket No. 149

CERTIFICATION OF COUNSEL R

EGARDING

4RDEk2 (I) AUTHOR~ZTNG Tgi~ ~E

BTOl2S TO RETAIN

AND CQNiPENSATE PROFESSIO

NALS UTILIZED IN THE

(3RDINARY COURSE QF BUSINESS

AND (II) GRANTING RE~,ATED

RELIEF

The undersigned proposed counsel

for the above-captioned debtors an

d debtors in

possession (the "Debtors") hereby cer

tif es that:

1. On February 2, 20l 8, the Debtors filed

the Debtors' Motion for^ Entry of an

ONder

(I) AuthoNizing the Debtors to Retain

and Compensate Professionals Util

ized in the ONdinary

Course of Business and (II) Granting

Related Relief [Docket No. 149] (the

"Motion")

2. Pursuant to the notice of the Motian

, objections to the Motzon were to be

f led on

or before February 16, 2018, at 4:00

p.m. (prevailing Eastern Time). The

Debtors subsequently

extended the time for the Office of t

he United States Trustee (the "U.S. T

rustee") to respond to

the Motion until February 23, 2018 a

t 4;00 p.m. (prevailing Eastern Time).

3. The Debtors have received no obj

ections or informal comments t•elated

to the

Mahon.

~ The Debtors in these chapter 11 cas

es, along with the last four digits of

each Debtor's federal tax identificat

ion

number, are: PES Holdings, LLC (8

157); North Yard Financing, LLC (6

2$4); North Yard GP, LLC (5458)

;

North Yard Logistics, L.P. (5952); P

ES Administrative Services, LLC (3

022); PES Logistics GP, LLC (9202

);

PES Logistics Partners, L.P. (l28

$); PESRM Holdings, LLC (21Q7);

and Philadelphia Energy Solution

s

Refining and Marketing LLC (9574)

. The Debtors' service address is:

1735 Market Street, Philadelphia,

Pennsy]vania19103.

LEGAL26431-1:5216587$.1:

Case 18-10122-KG Doc 197 Filed 02/23/18 of 3

4. Attached hereto as Exhibit A is the revised proposed Order (I) Auth

orizing the

Debtors to Retain and Compensate PNofessionals Utilized in the Ordi

nary CouNse of Buszness

and (II) Granting Related Relief (the "Revised Proposed Order").

S. Attached hereto as Exhibit B is a redline of the Revised Proposed Ord

er, showing

changes made from. the proposed order attached to the Motion.

6. Accordingly, the Debtors respectfully request entry of the Revise

d Proposed

Order attached hereto as Exhibit r~ at the Court's earliest convenienc

e.

[Remainder of page intentionally left blank;]


Dated: February 23, 2018 /s/Timothy P. Cairns

Wilmington, Delaware Laura Davis Jones (DE Bar No. 2436)

Timothy P. Cairns (DE Bar No. 4228)

Peter J. Keane (DE Bar No. 5503)

PACHULSKI STANG ZIEHL & 30NES LLP

919 Narth Market Street, 17th Floot~

F.O. Box 8705

Wilmington, Delaware 19899-8705 (Courier 19801)

Telephone: (302) 652-4100

Facsimile: (302) 652-4400

Email: [email protected]

tcairns a pszjlaw.com

[email protected]

-and-

James H.M. Sprayregen, P.C.

Steven N. Serajeddini (admitted pro hac vice)

KIRKLAND & ELLIS LLP

KIRI~LAND & ELLIS INTERNATIONAL LLP

300 North LaSalle Street

Chicago, Illinois 60654

Telephone: (312) 862-2000

Facsimile: (312) 862-2200

Email: james.sprayi•[email protected]

steven.seraj [email protected]

-and-

Edward O. Sassower, P.C. (admitted pr^o hac vice)

Matthew C. Fagen (admitted pro hac vice)

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]

[email protected]

Proposed Co-Counsel to the Debtors and Debtors in Possession

LEGAL:26431-1:52 ] 65878.1:


Exhibit A

Revised Proposed Order

Case 18-10122-KG Doc 197-1 Filed 02/23/18 Page 1 of 13

IN THE UNITED STATES BANKRUPTCY COURT

FQR THE DISTRICT` OF DELAWARE

In re: ) Chapter 1 I

PES HOLDINGS, LLC, et al.,~ ) Case No. 18-10122 (KG)

Debtors. ) (Jointly Administered)

Re: Docket No. 149

OR~~R (I) AiJ'I'I~ORIZING THE ~EBT'ORS Tt~ RET

AIN

AND COMPENSATE PROFESSIONALS UTILIZED I

N '~~-IE

ORDINARY CC?URSE OF BUSINESS AND (II) GRA

NTING RELATED RELIEF

Upon the motion (the "Motion")2 of the above-captioned d

ebtors and debtors in possession

(collectively, the "Debtors") for entry of an order (this "

t~rder"), (a) authorizing the Debtors to

retain and compensate professionals utilized in the ordin

ary course of business; and (b) granting

related relief, aJl as more fully set forth in the Motion;

and upon the First Day Declaration; and

this Court having jurisdiction over this matter pursuant t

o 28 U.S.C. §§ 157 and 1334 and the

Amended Standing Order; and that this Court may ente

r a final order consistent with Article III of

the United States Constitution; and this Court having fo

und that venue of this proceeding and the

Motion in 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 oppo

rtunity for a hearing on the Motian were

appropriate under the circumstances and no other notic

e need be provided; and this Court having

reviewed the Motion and having heard the statements

in support of the relief requested therein at

~ The Debtors in these chapter 11 cases, along with the l

ast four digits of each Debtor's federal tax identificat

ion

number, are: PES Holdings, LLC (81 S7); North Yard F

inancing, LLC (6284); No~~th Yard GP, LLC (5458};Nort

h

Yard Logistics, L.P. (5952}; PES Administrative Ser

vices, LLC (3022); PES Logistics GP, LLC (9202); PE

S

Logistics Partners, L.P. (1288); PESRM Holdings, LLC (

2107); and Philadelphia Energy Solutions Refining and

MarkeCing LLC (9574}, The Debtors' service add~•ess is

: 1735 Market Street, Philadelphia, Pennsylvania 19103.

z Capitalized terms used but not otherwise defined herein

have the meanings ascribed to them in the Motion.


a hearing, if any, before this Court (the "He_ arin~"); and this Court having determined that the legal

and factual bases set forth in the Motion and at any 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:

The Motion is granted as set forth herein.

2. The Debtors are authorized to retain and compensate the professionals identified

on the OCP List (collectively, the "OCPs"), attached as Exhibit 1 to the Order, in the ordinary

coursc of business pursuant to the following OCP Procedures:

a. Within thirty (30) days of the date on which an OCP commences work

for the Debtors, such OCP shall cause a declaration of disinterestedness,

substantially in the form annexed as Exhibit 2 to the Order (each,

a "Declaration of Disinterestedness"), to be filed with the Court and

served upon: (i) the Debtors, PES Holdings, LLC, 1735 Market Street,

Philadelphia, Pennsylvania 19103, Attn: John B. McShane;

(ii) proposed counsel to the Debtors, Kirkland &Ellis, LLP, 300 North

LaSalle, Chicago, Illinois 60654, Attn: Steven N. Serajeddini and

Kirkland &Ellis LLP, 601 Lexington Avenue, New York, New Yorlc,

10022, Attn: Matthew G Fagen and Allyson Smith; (iii) proposed co-

counsel to the Debtors, Pachulski Stang Ziehl &Jones LLP, 919 North

Market Street, 17th Floor, P.O. Box 8705, Wilmington, Delaware

19899-8705 (Courier 19801), Attn; Laura Davis Jones and Timothy

Cairns; (iv) the Office of the United States Trustee for the District of

Delaware, Caleb Boggs Federal Building, 844 King Street, Suite 2207,

Lockbox 35, Wilmington, Delaware 19801, Attn: Richard

Schepacarter; (v) counsel to any official committee of unsecured

creditors appointed in these chapter 1.1 cases; (vi) counsel to the DIP

Agent; (vii) counsel to the DIP Lenders; (viii) counsel to the Refining

ABL Agent; (ix) counsel to the Logistics Agent; (x) counsel to Merrill

Lynch Commodities, Inc.; (xi) counsel to BTO Commodities, L.P. and

PES Inventory Company, LLC; and (xii) to the extent not listed herein,

those parties requesting notice pursuant to rule 2002 of the Federal

Rules of Bankruptcy Procedure (the "Bankruptcy Rules") (collectively,

the "Notice Parties").

b. The Notice Parties shall have fourteen days after the date of ding of

each OCP's Declaration of Disinterestedness (the "Objection

Deadline") to object to the retention of such OCP. The objecting party

shall file any such objection and serve such objection upon the Notice

Parties and the respective OCP on or before the Objection Deadline. If

2


any -such objection cannot be resolved within fourteen days

of its

receipt, the matter shall be scheduled for hearing before the Cou

rt at the

next regularly scheduled omnibus hearing date that is no les

s than

fourteen days from that date or on a date otherwise agreeable

to the

parties. The Debtors shall not be authorized to retain and compen

sate

such qCP until all outstanding objections have been withdrawn,

resolved, or overruled by order of the Court.

c. If no objection is received from any of the Notice Parties

by the

Objection Deadline with respect to any particular 4CP, the D

ebtors

shall be authorized to: (i} retain such OCP as of the date s

uch OCP

commenced providing services to the Debtors; and (ii) compens

ate such

OCP as set forth below.

d. The Debtors shall be authorized to pay, without formal

application to

the Court by any OCP, 100 percent of fees and disbursemen

ts to each

of the OCPs retained by the Debtors pursuant to the OCP Pr

ocedures

upon submission to the Debtors of an appropriate invoice s

etting forth

in reasonable detail the nature of the services rendered after th

e Petition

Dade; provided that fees paid to OCPs, excluding costs and

disbursements, may not exceed $250,000 per month per

OCP in the

aggregate, calculated as an average over a rolling three-m

onth period

while these chapter 11 cases are pending (the "OCP Monthl

~Cap") (it

being understood and agreed ghat there shall be no appl

ication of a

rolling three month average for the first month); provzded,

further, that

the total amount disbursed per quarter, for each OCP, does

not exceed

$750,000 per OCP (the "OCP Quarterly Cad" together w

ith the OCP

Monthly Cap, collectively, the "OCP Caps"). The OCP Ce

ps may be

increased by mutual agreement between the Debtors an

d the U.S.

Trustee, provided that the Debtors sha11 file a notice with t

he Court and

submit notice to the Notice Parties of any such agreed increas

e; provided

further, that any increase of the OCP Caps shall be s

ubject to the

requirements imposed on the Debtors under any orders r

egarding the

use of cash collateral or access to postpetition debtor i

n possession

financing approved by the Court in these chapter I l cases

(including

with respect to any budgets governing or relating to such us

e).

e. To the extent that fees payable to any OCP exceed the

applicable OCP

Cap,. the applicable OCP shall file a fee application (a "Fee

Application") with the Court for the amount in excess of th

e applicable

OCP Cap in accordance with sections 330 and 331 of the

Bankruptcy

Code, the Bankruptcy Rules, the Local Rules, the f

ee guidelines

promulgated by the Office of the United States Truste

e, and any

applicable orders of the Court, unless the U.S. Trustee agr

ees otherwise.

f. Beginning on the quarter ending March 31, 2018, and for

each quarter

thereafter during which these chapter 11 cases are pending

, the Debtors


shall within thirty days thereof file with the Court and serve on the

Notice Parties a statement with respect to each OCP paid during the

immediately preceding quarterly period (the "4uarterly Statement").

Each Quarterly Statement sha11 include: (i) the name ofthe OCP; (ii) the

aggregate amounts paid as compensation for services rendered and

reimbursement of expenses incurred by that OCP during the reported

quarter; and (iii) a general description of the services rendered by that

OCP,

g. The Debtors reserve the right to retain additional OCPs from time t

o

time during these chapter i l cases by: (i) including such OCPs on an

amended version pf the OCP List that is filed with the Court and served

on the Notice Parties; and (ii) having such OCPs comply with the OCP

Procedures.

3. The Debtors are authorized to supplement the OCP List as necessary to

add or

remove OCPs, from time to time in their sole discretion, without the need

for any further hearing

and without the need to file individual retention applications for newly ad

ded OCPs. In such event,

the Debtors shall file the amended OCP List with this Court and serv

e such list on the Notice

Parties. Each additional OCP listed in the OCP List shall file with this Cou

rt and serve a

Declaration of Disinterestedness on the Notice Parties as provided in

the OCP Procedures, If no

objections are filed within fourteen days to any such additional OCP's Declaration of

Disinterestedness, then retention of such OCPs shall be deemed appr

oved by this Court pursuant

to this Order without a hearing or further order.

4. Nothing contained herein sha11 affect the Debtors' or any appropria

te party in

interest's ability to dispute any invoice submitted by an OCP, and no

thing contained herein shalt

preclude the Debtors from seeking authority to pay any OCP in an a

mount greater than the OCP

Caps, subject to the rights of any party in interest to oppose any suc

h request.

5. This Order shall not apply to any professional retained by the Debtors

pursuant to

a separate order of the Court.

0


6. 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.

7. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Order

are immediately effective and enforceable upon its entry.

8. The Debtors are authorized to take all actions necessary to effectuate the relief

granted in this Order in accordance with the Motion.

9. This Court retains exclusive jurisdiction with respect to all matters arising from or

related to the implementation, interpretation, and enforcement of this Order.

Dated: , 2018Wilmington, Delaware Kevin Gross

United States Bankruptcy Judge


Exhibit 1

OCP List


Schedule of Ordinary Course Professionals


I~T~me ~►ddress Ser~ic~

BDO1801 Market Street, Suite 170 provides audit and tax related servicesPhiladel hia, PA 19103

KPMG Consulting Inc.1676 International DriveMcLean, VA 22102

provides audit related services

Weaver &Tidwell LLP2821 West 7th Street Provides tax advisory and EPAFort Worth, TX 76107 attestation services

Tax Advisoj•y Services 1 Green Way Plaza, Suite 330 Provides motor fuel excise tax

Group, LLC Houston, TX 77046 advisory services

Akin. Gump StraussTwo Commerce Square2001 Market Street, Suite 4100

Provides legal advocacy/lobbying

Hauer &Feld philadel hia, PA 19103services related to the RF'S

1221 Avenue of the Americas Provides legal advisory servicesAllen & Overy LLP New York, NY 10020 related to commodities regulations

1492 Oliver Road Provides legal advisory servicesBallard Spahr LLP New Milford, PA 18834 related to benefits plans

Beveridge &Diamond 1350 I Street N.W. Suite 700 Provides legal services related to

pC Washington, DC 20005 environmental matters

One Logan Square Provides legal advisory services onBlank Rome LLP Philadelphia, PA 19103 marine issues

Provides legal advisory servicesBuchanan Ingersoll & One Oxford Center related to real estate, litigation andRooney PC Pittsburgh, PA 15219 government relations matters

Provides legal advisory servicesCozen O'Connor P.O. Box 7247 related to labor and employmentAttorney Philadelphia, PA 19170 matters

Provides legal advisory services

Foley & Lardner LLP1381 Rothley AvenueAbington, PA 19001

related to certain regulatorycompliance matters

885 Third Avenue Provides legal advisory servicesLatham &Watkins LLP New York, NY 10022 related to intermediation matters

Provides legal advisory servicesMcNees Wallace & P.O. Box 1166 related to natural gas and electricalNurick LLC Harrisburg, PA 17108 matters

30 Rockefeller Plaza, 22nd Floor Provides legal. advisory servicesPerkins Cole LLP New York, NY 10112 related to the RFS

KE 52154672


Robert C. Stewart & 116 Capps Ct. Provides consulting services related to

Associated Inc. Wilmington, NC 28409 labor matters

Skadden, Arps, Slate, 920 North King Street Provides legal advisory services

Meagher &Flom Wilmington, DE 19801 related to tax matters

Stradley Ronon Stevens 2005 Market Street Provides litigation support and

&Young LLP Philadelphia, PA 19103 regulatory counsel

I{~ 52154672


Exhibit 2

Declaration of Disinterestedness

KE 52154672


IN THE UNITED STATES BANKRUPTCY COURTFOR THE DISTRICT OF DELAWARE

In re: § Chapter 11

PES HOLDINGS, LLC, et al.,' § Case No. 18-10122 (KG)

Debtors. § (Jointly Administered)

DECLARATION OF DISINTERESTEDNESS OF [ENTITY]PURSUANT TO T~-IE OTZl3EIt (I) AUTHORIZING 'THE 1?EBTOI~S

'TO RETAIN ANI~ C011ZPEN~A'I'E PFt~FE~~IONAL,S iT'I'ILI~ED IllT TIDEORDINARY COURSE OF BUSINESS AND (II) GRANTING RELATED RELIEF

I, [NAME], declare under penalty of perjury:

I am a [POSITION] of [ENTITY], located at [STREET, CITY, STATE, ZIP CODE] (the "Firm")

2. PES Holdings, LLC and certain of its affiliates, as debtors and debtors in possession (collectively,

the "Debtors"), have requested that the Firm provide [SPECIFIC DESCRIPTION] services to the Debtors, and

the Firm has consented to provide such services.

3. The Firm may have performed services in the past, may currently perform services, and may

perform services in the future in matters unrelated to these chapter 11 cases for persons that are parties in interest

in the Debtors' chapter 11 cases. The Firm, however, does not perform services for any such person in connection

with these chapter I 1 cases, or have any relationship with any such person, their attorneys, or accountants that

would be adverse to the Debtors or their estates.

~ The Debtors in these chapter l l cases, along with the last four digits of each Debtor's federal tax identification number, af•e: PES

Holdings, LLC (8157); Not~th Yard Financing, LLC (6284); North Yard GP, LLC (5458); North Yard Logistics, L.P, (5952); PES

Administrative Services, LLC (3022); PES Logistics GP, LLC (9202); PBS Logistics Partners, L.P. (1288); PESRM Holdings, LLC

(2107); and Philadelphia Energy Solutions Refining and Marketing LLC (9574). The Debtors' service address is: 1735 Market

Street, Philadelphia, Pennsylvania 19103.


4. As part of its customary practice, the Firm is retained in cases, proceedings, and transactions

involving many different parties, some of whom may represent or be employed by the Debtors, claimants, and

parties in interest in these chapter 11 cases.

5. Neither I nor any principal, partner, director, officer, [etc.] of, or professional employed by, the

Firm has agreed to share or will share any portion of the compensation to be received from the Debtors with any

other person other than the principal and regular employees of the Firm.

6. Neither I nor any principal, partner, director, officer, of, or professional employed by, the Firm,

insofar as I have been able to ascertain, holds or represents any interest adverse to the Debtors or their estates

with respect to the matters) upon which the Firm is to be employed.

7. [The Debtors owe the Firm $[_] for prepetition services, the payment of which is subject to

limitations contained in title 11 of the United States Code, 11 U.S.C. §§ 101-1532.]

8. As of the Petition Date, which was the date on which the Debtors commenced these chapter 11

cases, the Firm [was/was not] party to an agreement for indemnification with certain of the Debtors. [A copy of

such agreement is attached as Exhibit 1 to this Declaration.]

9. The Firm is conducting further inquiries regarding its retention by any creditors of the Debtors,

and upon conclusion of that inquiry, or at any time during the period of its employment, if the Firm should

discover any facts bearing on the matters described herein, the Firm will supplement the information contained

in this Declaration.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

Date: , 2018

[DECLARANT'S NAME]

2


Exhibit B

Redline


IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE

In re: ) Chapter 11

PES HOLDINGS, LLC, et al.,' ) Case No. 18-10122 (KG)

Debtors. ) (Jointly Administered)

ORDER (I) AUTI~ORIZING THE DEBTORS TO RETAIN

AND COII~IPENSATE PROFESSIONALS UTILIZED IN THE

ORDINARY COURSE OF BUSINESS AND (II) GRANTING RELATED RELIEF

Upon the motion (the "Motion")2 of the above-captioned debtors and debtors in possession

(collectively, the "Debtors") for entry of an order (this "Order"), (a) authorizing the Debtors to

retain and compensate professionals utilized in the ordinary course of business; and (b) 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 the

Amended Standing Order; 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 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

~ Tl~e Debtors in these chapter 11 cases, along with the last four• digits of each Debtor's federal tax identification

number, are: PES Holdings, LLC (8157); North Yard Financing, LLC (6284); North Yard GP, LLC (5458); North

Yard Logistics, L.P. (5952); PES Administrative Services, LLC (3022); PES Logistics GP, LLC (9202); PES

Logistics Partnet•s, L.P. (1288); PESRM Holdings, LLC (2107); and Philadelphia Energy Solutions Refining and

Marketing LLC (9574). The Debtors' service addt•ess is: 1735 Market Street, Philadelphia, Pennsylvania ].9103.

2 Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Motion.


a hearing, if any, before this Court (the "Hearin "); and this Court having determined that the legal

and factual bases set forth in the Motion and at any 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:

The Motion is granted as set forth herein.

2. The Debtors are authorized to retain and. compensate the professionals identified.

on the OCP List (collectively, the "OCPs"), attached as Exhibit ., to the ~~~ ; in the

ordinary course of business pursuant to the following OCP Procedures:

a. Within thirty (30) days of the date on which an OCP commences work

for the Debtors, such OCP shall cause a declaration of disinterestedness,

substantially in the form annexed as Exhibit ~-j; to the Order (each,

a "Declaration of Disinterestedness"), to be filed with the Court and

served upon: (i) the Debtors, PES Holdings, LLC, ].735 Market Street,

Philadelphia, Pennsylvania 19103, Attn: John B. McShane;

(ii) proposed counsel to the Debtors, Kirkland &Ellis, LLP, 300 North

LaSalle, Chicago, Illinois 60654, Attn: Steven N. Serajeddini and

Kirkland &Ellis LLP, 601 Lexington Avenue, New York, New York,

10022, Attn: Matthew C. Fagen and Allyson Smith; (iii) proposed co-

counsel to the Debtors, Pachulski Stang Ziehl &Jones LLP, 919 North

Market Street, 17th Floor, P.O. Box 8705, Wilmington, Delaware

19899-8705 (Courier 19801), Attn: Laura Davis Jones and Timothy

Cairns; (iv) the Office of the United States Trustee for the District of

Delaware, Caleb Boggs Federal Building, 844 King Street, Suite 2207,

Lockbox 35, Wilmington, Delaware 19801, Attn: Richard

Schepacarter; (v) counsel to any official committee of unsecured

creditors appointed in these chapter 11 cases; (vi) counsel to the DIP

Agent; (vii) counsel to the DIP Lenders; (viii) counsel to the Refining

ABL Agent; (ix) counsel to the Logistics Agent; (x) counsel to Merrill

Lynch Commodities, Inc.; (xi) counsel to BTO Commodities, L.P. and

PES Inventory Company, LLC; and (xii) to the extent not listed herein,

those parties requesting notice pursuant to rule 2002 of the Federal

Rules of Bankruptcy Procedure (the Bankruptcy Rules") (collectively,

the "Notice Parties").

b. The Notice Parties shall have fourteen days after the date of fling of

each OCP's Declaration of Disinterestedness (the "Objection

Deadline") to object to the retention of such OCP. The objecting party

shall file any such objection and serve such objection upon the Notice

Parties and the respective OCP on or before the Objection Deadline. If


any such objection cannot be resolved within fourteen days of itsreceipt, the matter shall be scheduled for hearing before the Court at thenext regularly scheduled omnibus hearing date that is no less thanfourteen days from that date or on a date otherwise agreeable to theparties. The Debtors shall not be authorized to retain and compensatesuch OCP until all outstanding objections have been withdrawn,resolved, or overruled by order of the Court.

c. If no objection is received from any of the Notice Parties by theObjection Deadline with respect. to any particular OCP, the Debtorsshall be authorized to: (i) retain such OCP as of the date such OCPcommenced providing services to the Debtors; and (ii) compensate suchOCP as set forth below.

d. The Debtors shall be authorized to pay, without formal application tothe Court by any OCP, 100 percent of fees and disbursements to eachof the OCPs retained by the Debtors pursuant to the OCP Proceduresupon submission to the Debtors of an appropriate invoice setting forthin reasonable detail the nature of the services rendered after the PetitionDate; provzded that fees paid to OCPs, excluding costs anddisbursements, may not exceed $250,000 per month per OCP in theaggregate, calculated as an average over a rolling three-month periodwhile these chapter 11 cases are pending (the "OCP Monthl~Cap") (itbeing understood and agreed that there shall be no application of arolling three month average for the first month); provi~'ed, further, thatthe total amount disbursed per quarter, for each OCP, does not exceed$750,000 per OCP (the "OCP Quarterly Cad" together with the OCPMonthly Cap, collectively, the "OCP Caps"). The OCP Caps may beincreased by mutual agreement between the Debtors and the U.S.Trustee, provided that the Debtors shall file a notice with the Court andsubmit notice to the Notice Parties of any such agreed increase; providedfurther, that any increase of the OCP Caps shall be subject to therequirements imposed on the Debtors under any orders regarding theuse of cash collateral or access to postpetition debtor in possessionfinancing approved by the Court in these chapter 11 cases (includingwith respect to any budgets governing or relating to such use).

e. To the extent that fees payable to any OCP exceed the applicable OCPCap, the applicable OCP shall file a fee application (a "FeeApplication") with the Court for the amount in excess of the applicableOCP Cap in accordance with sections 330 and 331 of the BankruptcyCode, the Bankruptcy Rules, the Local Rules, the fee guidelinespromulgated by the Office of the United States Trustee, and anyapplicable orders of the Court, unless the U.S. Trustee agrees otherwise.

f. Beginning on the quarter ending March 31, 2018, and for each quarterthereafter during which these chapter I 1 cases are pending, the Debtors


shall within thirty days thereof file with the Court and serve on the

Notice Parties a statement with respect to each OCP paid during the

immediately preceding quarterly period (the "Quarterly Statement").

Each Quarterly Statement shall include: (i) the name of the OCP; (ii) the

aggregate amounts paid as compensation for services rendered and

reimbursement of expenses incurred by that OCP during the reported

quarter; and (iii) a general description of the services rendered by that

OCP.

g. The Debtors reserve the right to retain additional OCPs from time to

time during these chapter 11 cases by: (i) including such OCPs on an

amended version of the OCP List that is filed with the Court and served

on the Notice Parties; and (ii) having such OCPs comply with the OCP

Procedures.

3. The Debtors are authorized to supplement the OCP List as necessary to add or

remove OCPs, from time to time in their sole discretion, without the need for any further hearing

and without the need to file individual retention applications for newly added OCPs. In such event,

the Debtors shall file the amended OCP List with this Court and serve such list on the Notice

Parties. Each additional OCP listed in the OCP List shall f le with this Court and serve a

Declaration of Disinterestedness on the Notice Parties as provided in the OCP Procedures. If no

objections are filed within fourteen days to any such additional OCP's Declaration of

Disinterestedness, then retention of such OCPs shall be deemed approved by this Court pursuant

to this Order without a hearing or further order.

4. Nothing contained herein shall affect the Debtors' or any appropriate panty in

interest's ability to dispute any invoice submitted by an OCP, and nothing contained herein shall

preclude the Debtors from seeking authority to pay any OCP in an amount greater than the OCP

Caps, subject to the rights of any party in interest to oppose any such request.

5. This Order shall not apply to any professional retained by the Debtors pursuant to

a separate order of the Court.

4


Notice ofthe 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.

Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Order

are immediately effective and enforceable upon its entry.

The Debtors are authorized to take all actions necessary to effectuate the relief

granted in this Order in accordance with the Motion.

9. This Court retains exclusive jurisdiction with respect to all matters arising from or

related to the implementation, interpretation, and enforcement of this Order.

Dated: , 2018Wilmington, Delaware Kevin Gross

United States Bankruptcy Judge


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Declaration of Disinterestedness


IN THE UNITED STATES BANKRUPTCY COURTFOR THE DISTRICT OF DELAWARE

In re: § Chapter 11

PES HOLDINGS, LLC, et al.,' § Case No. l 8-10122 (KG)

Debtors. § (Jointly Administered)

DECLARATION OF DISINTERESTEDNESS OF [ENTITY]PURSUANT TO THE ORDER (I) AUTHORIZING THE DEBTORS

TO RETAIN AND COMPENSATE PROFESSIONALS UTILIZED IN THEORDINARY COURSE OF BUSINESS AND (II) GRANTING RELATED RELIEF

I, [NAME], declare under penalty of perjury:

I am a [POSITION] of [ENTITY], located at [STREET, CITY, STATE, ZIP

CODE] (the "Firm")

2. PES Holdings, LLC and certain of its affiliates, as debtors and debtors in possession

(collectively, the "Debtors"), have requested that the Firm provide [SPECIFIC DESCRIPTION]

services to the Debtors, and the Firm has consented to provide such services.

The Firm may have performed services in the past, may currently perform services,

and may perform services in the future in matters unrelated to these chapter 11 cases for persons

that are parties in interest in the Debtors' chapter 11 cases. The Firm, however, does not perform

services for any such person in connection with these chapter 11 cases, or have any relationship

with any such person, their attorneys, or accountants that would be adverse to the Debtors or their

estates.

~ The Debtors in these chapter 11 cases, along with the last four digits of each Debtor's federal tax identification

number, are: PES Holdings, LLC (8157); North Yard Financing, LLC (6284); North Yard GP, LLC (5458); North

Yard Logistics, L.P. (5952); PES Adminisri•ative Services, LLC (3022); PES Logistics GP, LLC (9202); PES

Logistics Partners, L.P. (1288); PESRM Holdings, LLC (2107); and Philadelphia Energy Solutions Refining and

Marketing LLC (9574). The Debtors' service address is: 1735 Market Street, Philadelphia, Pennsylvania 19103,


4. As part of its customary practice, the Firm is retained in cases, proceedings, and

transactions involving many different parties, some of whom may represent or be employed by the

Debtors, claimants, and parties in interest in these chapter 11 cases.

5. Neither I nor any principal, partner, director, officer, [etc.J of, or professional

employed by, the Firm has agreed to share or will share any portion of the compensation to be

received from the Debtors with any other person other than the principal and regular employees of

the Firm.

6. Neither I nor any principal, partner, director, officer, of, or professional employed

by, the Firm, insofar as I have been able to ascertain, holds or represents any interest adverse to

the Debtors or their estates with respect to the matters) upon which the Firm is to be employed.

7. [The Debtors owe the Firm $[] for prepetition services, the payment of which

is subject to limitations contained in title 11 of the United States Code, 11 U.S.C. §§ 101-1532.]

8. As of the Petition Date, which was the date on which the Debtors commenced these

chapter 11 cases, the Firm [was/was not] party to an agreement for indemnification with certain of

the Debtors. [A copy of such agreement is attached as Exhibit 1 to this Declaration.]

9. The Firm is conducting further inquiries regarding its retention by any creditors of

the Debtors, and upon conclusion of that inquiry, or at any time during the period of its

employment, if the Firm should discover any facts bearing on the matters described herein, the

Firm will supplement the information contained in this Declaration.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true

and correct.

Date: , 2018

[DECLARANT'S NAME]

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case 18-10122-kg doc 197 filed 02/23/18 page 1 of 3each ocp's declaration of disinterestedness...

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