Objections Due: August 15, 2016 at 4:00 pm ET Hearing Date ... · {11802-001 APPL A0445069.DOCX} 3...

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

In re:

SYNCARDIA SYSTEMS, INC.

Debtor.

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Chapter 11

Case No. 16-11599-MFW

Objections Due: August 15, 2016 at 4:00 pm ET

Hearing Date: August 22, 2016 at 2:00 pm ET

APPLICATION OF THE OFFICIAL COMMITTEE OF UNSECURED

CREDITORS FOR AN ORDER UNDER BANKRUPTCY CODE SECTIONS 328 AND 1103 AND BANKRUPTCY RULE 2014(a) APPROVING THE

EMPLOYMENT AND RETENTION OF GAVIN/SOLMONESE LLC NUNC PRO TUNC TO JULY 18, 2016, AS FINANCIAL ADVISOR TO

THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS

The Official Committee of Unsecured Creditors of the estate of SynCardia

Systems, Inc. (the “Committee”) in this Chapter 11 case hereby files this application (the

“Application”) for an Order, pursuant to Sections 328 and 1103 of the Bankruptcy Code

and Rule 2014 of the Federal Rules of Bankruptcy Procedure, authorizing the employment

and retention of Gavin/Solmonese LLC (“Gavin/Solmonese”) as Financial Advisor to the

Committee nunc pro tunc to July 18 2016 (the “Retention Date”). In support of the

Application, the Committee relies upon the Declaration of Edward T. Gavin, CTP (the

“Gavin Declaration”) attached hereto as Exhibit A and incorporated by reference, and

respectfully represents as follows:

Case 16-11599-MFW Doc 154 Filed 08/01/16 of 7

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BACKGROUND

1. SynCardia Systems, Inc. et al (the “Debtor“) filed its voluntary petition for

relief under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”) on

July 1, 2016. Pursuant to Sections 1107 and 1108 of the Bankruptcy Code, the Debtor

operates its business as a Debtor-in-possession. No trustee or examiner has been appointed

in this case.

2. On July 14, 2016, the Office of the United States Trustee, pursuant to

Section 1102 of the Bankruptcy Code, appointed the Committee.

3. By this Application, the Committee seeks to employ and retain

Gavin/Solmonese as its financial advisor during this Chapter 11 case effective as of July

18 2016, the date the Committee selected Gavin/Solmonese as its financial advisor and

Gavin/Solmonese began to work on behalf of the Committee.

JURISDICTION

4. This Court has jurisdiction over this Application pursuant to 28 U.S.C.

§§ 157 and 1334. Venue of this proceeding and this Application is proper in this district

pursuant to 28 U.S.C. §§ 1408 and 1409 although a motion seeking to transfer has been

filed but not heard as of the time of this writing. The statutory predicates for this

Application are 11 U.S.C. §§ 328 and 1103.

RELIEF REQUESTED

5. The Committee desires to retain and employ Gavin/Solmonese as its

financial advisor in this Chapter 11 case. By this Application, the Committee requests that

the Court enter an order authorizing the Committee to retain and employ

Gavin/Solmonese, nunc pro tunc to the Retention Date. Accordingly, the Committee


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respectfully requests the entry of an order, pursuant to Sections 328 and 1103 of the

Bankruptcy Code, authorizing the employment and retention of Gavin/Solmonese as its

financial advisor to perform the advisory services that will be necessary during this

Chapter 11 case.

6. The Committee has selected Gavin/Solmonese based on Gavin/Solmonese’s

experience in providing financial advisory services in Chapter 11 cases and based on

Gavin/Solmonese’s familiarity with the Debtor's businesses.

7. The Committee has been advised that: (i) Gavin/Solmonese is one of the

country’s premier mid-market turnaround and crisis management firms and is well

respected for its role as financial advisors; (ii) Gavin/Solmonese has extensive experience

working with financially troubled entities in complex financial reorganizations – both in

Chapter 11 cases and in out-of-court restructuring situations and; (iii) in particular,

Gavin/Solmonese and its employees have served, or are serving, as financial advisors to

numerous official committees and debtors-in-possession in bankruptcy proceedings.

FINANCIAL ADVISORY SERVICES TO BE PROVIDED

8. The Committee seeks the employment of Gavin/Solmonese to assist it in

evaluating the Debtor's businesses during this Chapter 11 case. The Committee seeks to

retain Gavin/Solmonese to provide financial advisory services including, but not limited to,

the following:

a) Reviewing and analyzing the business, management, operations,

properties, financial condition and prospects of the Debtor;

b) Reviewing and analyzing historical financial performance, and

transactions between and among the Debtor, its creditors, affiliates and other entities;


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c) Reviewing the assumptions underlying the business plans and cash

flow projections for the assets involved in any potential asset sale or plan of reorganization;

d) Determining the reasonableness of the projected performance of the

Debtor, both historically and future;

e) Monitoring, evaluating and reporting to the Committee with respect

to the Debtor's near-term liquidity needs, material operational changes and related financial

and operational issues;

f) Reviewing and analyzing all material contracts and/or agreements;

g) Assisting and procuring and assembling any necessary validations of

asset values;

h) Providing ongoing assistance to the Committee and the Committee’s

legal counsel;

i) Evaluating the Debtor's capital structure and making

recommendations to the Committee with respect to the Debtor's efforts to reorganize its

business operations and/or confirm a restructuring or liquidating plan;

j) Assisting the Committee in preparing documentation required in

connection with creating, supporting or opposing a plan and participating in negotiations

on behalf of the Committee with the Debtor or any groups affected by a plan;

k) Assisting the Committee in marketing the Debtor's assets with the

intent of maximizing the value received for any such assets from any such sale;

l) Providing ongoing analysis of the Debtor's financial condition,

business plans, capital spending budgets, operating forecasts, management and the

prospects for its future performance, and;


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m) Such other tasks as the Committee or its counsel may reasonably

request in the course of exercise of the Committee’s duties in these cases.

9. To the best of the Committee’s knowledge, information and belief, except

as set forth in the Gavin Declaration and except as set forth herein, Gavin/Solmonese has

no connection with, and holds no interest adverse to, the Debtor, its estate, its creditors, or

any party in interest in this case, nor to the best of the Committee’s knowledge does

Gavin/Solmonese hold any interest adverse to the interests of the Committee or Debtors’

creditors, except as set forth in the Gavin Declaration.

10. Subject to the approval of this Court, Gavin/Solmonese will charge the

Committee for its advisory services on an hourly basis in accordance with its ordinary and

customary rates, which are in effect on the date the services are rendered, subject to

periodic adjustments. The Committee has been advised by Gavin/Solmonese that the

current hourly rates, which will be charged in respect of the primary members of the

Gavin/Solmonese engagement team for the Committee, are as follows:

Edward T. Gavin, CTP $650.00/hour

Stanley Mastil $450.00/hour

The committee has requested, and Gavin/Solmonese has agreed to, a hybrid fee

arrangement that provides for a flat fee for the first two months of the case and a monthly

cap for each month thereafter. For the period starting July 18, 2016 through September 17,

2016, Gavin/Solmonese will receive a fee of $70,000 plus expenses; for each monthly

period starting September 18, 2016, Gavin/Solmonese will receive the lesser of its actual

hourly fees (billed in tenth of an hour increments) or $10,000, plus expenses. All fees will

be subject to approval by this Court after application by Gavin/Solmonese.


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11. From time to time, other Gavin/Solmonese professionals may be involved

in these cases as needed. Hourly rates for these professionals range from $250.00 to

$650.00 per hour. Reasonable non-working travel time will be charged at one-half of the

applicable hourly rate unless actual work is performed during such travel time, in which

case the full hourly rate will be charged.

OUT OF POCKET EXPENSES INCURRED

12. In addition to hourly rates previously referred to and subject to the approval

of this Court, Gavin/Solmonese will also request reimbursement from the Debtor's estate

for its travel and other reasonable out-of-pocket expenses including, but not limited to,

messenger, delivery, telephone, facsimile, photocopy and other similar charges, in

connection with, or arising out of Gavin/Solmonese’s activities under this engagement,

including but not limited to its due diligence investigation and review. Gavin/Solmonese

will charge the cost of these expenses in a manner and at rates consistent with charges

generally made to the firm’s other clients. All such charges for which Gavin/Solmonese

seeks payment are subject to Court approval and/or pursuant to any administrative

procedures established by Order of the Court.

13. Based on the foregoing, the Committee believes that the employment of

Gavin/Solmonese is necessary, appropriate and in the best interests of the estate, enabling

the Committee to carry out its fiduciary duties owed to creditors under the Bankruptcy

Code.


{11802-001 NTC A0446080.DOCX}

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE

In re:

SYNCARDIA SYSTEMS, INC. 1

Debtor.

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Chapter 11

Case No. 16-11599 (MFW)

Objections Due: August 15, 2016 at 4:00 pm ET

Hearing Date: August 22, 2016 at 2:00 pm ET

NOTICE OF APPLICATION OF THE OFFICIAL COMMITTEE OF

UNSECURED CREDITORS FOR AN ORDER UNDER BANKRUPTCY CODE

SECTIONS 328 AND 1103 AND BANKRUPTCY RULE 2014(a) APPROVING

THE EMPLOYMENT AND RETENTION OF GAVIN/SOLMONESE LLC NUNC

PRO TUNC TO JULY 18, 2016, AS FINANCIAL ADVISOR TO THE OFFICIAL

COMMITTEE OF UNSECURED CREDITORS

Please take notice that on August 1, 2016, The Official Committee of Unsecured

Creditors (the “Committee”) of SynCardia Systems, Inc. filed its Application for an

Order Pursuant to Bankruptcy Code Sections 328 and 1103 and Rule 2014(a) of the

Federal Rules of Bankruptcy Procedure, authorizing the employment and retention of

Gavin/Solmonese LLC (“Gavin/Solmonese”) as Financial Advisor to the Committee

nunc pro tunc to July 18 2016 (the “Application”).

If you wish to respond to the Application, you are required to file a response on or

before August 15, 2016 at 4:00 p.m. EDT.

At the same time, you must serve a copy of the response upon proposed counsel

to the Committee:

Thomas M. Horan

Shaw Fishman Glantz & Towbin LLC

919 N. Market St., Suite 600

Wilmington, DE 19801

1 The Debtor in this case (with the last four digits of its taxpayer ID no. in parenthesis): SynCardia Systems,

Inc. (1044). The Debtor’s corporate address is: 1992 E. Silverlake Road, Tucson, Arizona 85713.

Case 16-11599-MFW Doc 154-1 Filed 08/01/16 Page 1 of 3

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-and-

Robert M. Hirsh

George P. Angelich

Arent Fox LLP

1675 Broadway

New York, NY 10019

HEARING ON THE MOTION WILL BE HELD ON AUGUST 22, 2016 AT

2:00 P.M. EDT BEFORE THE HONORABLE MARY F. WALRATH, UNITED

STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE, 824 N.

MARKET STREET, FIFTH FLOOR, COURTROOM 4, WILMINGTON, DE 19801.

IF YOU FAIL TO RESPOND IN ACCORDANCE WITH THIS NOTICE, THE

COURT MAY GRANT THE RELIEF DEMANDED BY THE MOTION WITHOUT

FURTHER NOTICE OR HEARING.

Dated: August 1, 2016

SHAW FISHMAN GLANTZ &

TOWBIN LLC

/s/ Thomas M. Horan

Thomas M. Horan (Del. Bar No. 4641)

919 N. Market Street, Suite 600

Wilmington, DE 19801

Telephone: (302) 480-9412

E-mail: [email protected]

-and-

ARENT FOX LLP

Robert M. Hirsh

George P. Angelich

1675 Broadway

New York, NY 10019

Tel: (212) 484-3900

Fax: (212) 484-3990

Email: [email protected]

[email protected]

Proposed Counsel to the Official Committee of


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Unsecured Creditors


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In re:


Debtor.

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Chapter 11

Case No. 16-11599-MFW-KJC

DECLARATION OF EDWARD T. GAVIN, CTP IN SUPPORT OF THE

APPLICATION OF THE OFFICIAL COMMITTEE OF UNSECURED

CREDITORS FOR AN ORDER AUTHORIZING THE EMPLOYMENT AND

RETENTION OF GAVIN/SOLMONESE LLC NUNC PRO TUNC TO

JULY 18, 2016 AS FINANCIAL ADVISOR TO THE

OFFICIAL COMMITTEE OF UNSECURED CREDITORS

I, Edward T. Gavin, CTP1 hereby declare under penalty of perjury:

1. I am a Managing Director and Founding Partner of the firm

Gavin/Solmonese LLC (“Gavin/Solmonese”), with offices at 919 N. Market Street, Suite

600; Wilmington, DE 19801 and other locations, and I am duly authorized to make this

statement on behalf of Gavin/Solmonese. This Declaration is given in support of the

Application of the Official Committee of Unsecured Creditors for an Order Under

Bankruptcy Code Sections 328 and 1103 and Bankruptcy Rule 2014(a) Approving the

Employment and Retention of GAVIN/SOLMONESE LLC Nunc Pro Tunc to July 18 2016,

as Financial Advisor to the Official Committee of Unsecured Creditors, in part on personal

knowledge and in part on information and belief based on discussions with individuals at

1 The suffix “CTP” refers to “Certified Turnaround Professional”, a credential awarded by the Association of

Certified Turnaround Professionals based upon, inter alia, at least five years experience as a turnaround pro-

fessional, passage of a rigorous examination, an extensive background check, and maintenance of continuing

professional education.


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Gavin/Solmonese whom I consider reliable for the purposes of the matters discussed, and

in part on reviewing records provided to me by Gavin/Solmonese colleagues and

employees.

2. With headquarters in Wilmington, DE and offices in New York, NY and

Raleigh, NC, Gavin/Solmonese has extensive experience and expertise as financial

advisors and turnaround management specialists in bankruptcy and reorganization

proceedings. The Official Committee of Unsecured Creditors (the “Committee”) in this

case seeks the employment of Gavin/Solmonese to provide financial advisory services for

the Committee in connection with carrying out its fiduciary duties and responsibilities

under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”) consistent

with §1103(c) and other provisions of Title 11.

3. Gavin/Solmonese is well qualified to provide financial advisory services to

the Committee of SynCardia Systems, Inc. (the “Debtor”) in these Chapter 11 cases.

Gavin/Solmonese professionals have broad-based experience and a respected reputation as

financial advisors in bankruptcy and reorganization proceedings. Through

Gavin/Solmonese, the Committee will have the benefit of such knowledge and experience

as may be needed.

4. Gavin/Solmonese is not a law firm and does not “represent” clients in the

sense that attorneys do, nor is Gavin/Solmonese subject to licensing requirements or

conflicts of interest regulations pursuant to state law.

5. Gavin/Solmonese has numerous employee professionals (“Employees”) and

two non-employee independent contractors (“Associates”), neither of which will work on

this matter. Compensation received by the Employees is substantially unrelated to fees


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received by Gavin/Solmonese from any particular client. The Associates each have written

independent contractor agreements with Gavin/Solmonese or its predecessor entities,

pursuant to which they provide services to Gavin/Solmonese or its predecessor and,

through Gavin/Solmonese, to its clients, through a business entity owned by each

Associate and of which the Associate is the sole employee, except possibly for family

members. Each of the Associates or their respective business entities does all or

substantially all of its business with Gavin/Solmonese or its predecessor, and all of them

are considered regular members of Gavin/Solmonese’s professional staff and may be

featured in Gavin/Solmonese’s marketing literature and on its website. Compensation

received by the Associates or their respective entities is based in substantial part upon fees

received by Gavin/Solmonese from each of Gavin/Solmonese’s clients on whose cases

they work.

6. Gavin/Solmonese has undertaken an extensive examination of its database

of existing and former clients to determine whether it had or has any connections with

parties in interest in these cases. Specifically, based upon the information provided by the

Debtor, Gavin/Solmonese’s analysis included: the Court; the Debtor; the Debtor's insiders,

the thirty (30) largest unsecured creditors of the Debtor as listed on the Debtor's voluntary

petition; professionals for the Debtor; the United States Trustee’s Office; current officers

and directors; and any known parties to any known executory contracts sought to be

rejected by the Debtor.

7. Based on the database examination specified above, Gavin/Solmonese

wishes to disclose as follows: The Debtor has retained or seeks to retain Olshan Frome

Wolosky LLP and Young, Conaway, Stargatt & Taylor, LLP as its legal counsel,


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Canaccord Genuity LLC as its investment banker and Ankura Consulting Group as interim

management. Sindex SSI Lending, LLC is represented by Landis Rath & Cobb LLP. In

addition, the Official Committee of Unsecured Creditors has proposed to retain Arent Fox

LLP and Shaw Fishman Glantz & Towbin LLC (“Shaw Fishman”) as its counsel.

Gavin/Solmonese has provided office space to Shaw Fishman and receives no

remuneration for this. In addition, Shaw Fishman is counsel to G/S in matters wholly

unrelated to these cases. Gavin/Solmonese has in the past, either directly or through

predecessors, worked in the same cases as, and may currently work in the same cases as,

some of the professional firms that will be involved in these cases, including those set forth

above, in connection with matters wholly unrelated to these Chapter 11 proceedings. One

or more individual creditors of the Debtor may also be creditors in other, unrelated, cases

in which Gavin/Solmonese is employed, either as an advisor or as a post-confirmation

liquidating trustee. In addition, Gavin/Solmonese has been in the past and may, in the

future, be referred to companies by some or all of the professional firms referenced herein

and/or refer opportunities for work to the professional firms referenced herein. Finally, as

of the time of this declaration, I serve as Vice President – Development of the American

Bankruptcy Institute, a position that requires that I lead efforts to raise money from the

restructuring community, including many, if not all, of the professionals engaged in this

matter (among many others) to support the American Bankruptcy Institute’s Anthony H.N.

Schnelling Endowment Fund, which funds go towards research and education that enhance

and further develop the restructuring profession.

8. In an effort to comply with guidance with respect to disclosures pursuant to

Bankruptcy Rule 2014 and the means by which these disclosures are best managed,


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Gavin/Solmonese has implemented a series of steps to be followed by all Employees and

Associates when seeking engagement in a case by an Official Committee (the “Creditor

Contact Disclosure Protocol”). Gavin/Solmonese trifurcates the members of the creditors

body into distinct groups for purposes of this disclosure, based on the degree of contact

with the respective creditors prior to the organizational meeting of the Committee: Creditor

Discussions; Creditor Contacts, and; Creditor No-Contacts.

a. Creditor Discussions are those instances where Gavin/Solmonese

contacted a member of the largest creditors list as filed by the Debtor with their bankruptcy

petition and where the creditor invited Gavin/Solmonese to send along overview

information about NHB via email and where the creditor may have initiated contact with

Gavin/Solmonese or where substantive discussions occurred with between

Gavin/Solmonese, the creditor and/or the creditor’s counsel. Creditor Discussions occurred

with no creditors.

b. Creditor Contacts are those instances where Gavin/Solmonese

made telephonic or email contact with a creditor but, either due to lack of interest in

serving on the committee on the creditors’ part or because the creditor did not wish to

receive any information from Gavin/Solmonese (for any reason), no information about

Gavin/Solmonese was sent and no further contact occurred. Creditor Contacts occurred

with no creditors.

c. No-Contact Creditors are those instances where, for any reason,

no contact was made with a creditor. No-Contact Creditors are, by process of elimination,

those members of the creditors list not already mentioned herein.


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9. Gavin/Solmonese, through its processor firm NHB Advisors, has an

affiliated separate legal entity, NHB Capital Partners, LP (“NHBCP”). NHBCP is an

affiliate that sources investment capital to be invested as debt or equity in distressed

companies in North America, and sources investment and/or lending opportunities for

NHBCP’s Limited Partner(s) (the “LP” or “LPs”). NHBCP earns a transaction fee for

each funded transaction. The amount of the transaction fee is a fixed percentage of the total

funding transaction amount.

10. As of the date of this Declaration, NHBCP currently has a single Limited

Partner (“LP”). NHBCP may, in the future, have different or additional LPs. At no time in

the past, nor at any time in the future, will NHBCP LPs be affiliates of Gavin/Solmonese.

They are independent unrelated entities with their own fiduciary obligations to their own

investors. Gavin/Solmonese is not an investor in any LPs.

11. Due diligence responsibilities related to potential transactions involving

NHBCP transactions are those of the LPs and neither Gavin/Solmonese, nor its Employees

or Associates, are involved in such transactions, unless engaged separately by the LPs on a

basis unrelated to any existing Gavin/Solmonese engagements.

12. The terms of the Joint Venture and Partnership agreements provide that

Gavin/Solmonese has no requirement to show opportunities to NHBCP in cases where

Gavin/Solmonese is engaged by a party in interest in a case filed under Chapter 11 of the

Bankruptcy Code, or in any matter that is court-supervised (such as an Assignment for the

Benefit of Creditors, Receivership or other court-supervised disposition of assets).

Therefore, NHBCP will not participate in this case.


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13. In cases in which Gavin/Solmonese has been retained with Bankruptcy

Court approval, Gavin/Solmonese may show opportunities for investment, issuance of debt

or purchase of assets to entities that may be LPs. Such transactions are unrelated to

NHBCP. Therefore, Gavin/Solmonese may, in the course of informing potentially

interested parties of the opportunity to acquire some or all of the Debtors’ assets, show this

opportunity to one or more LPs or to parties who are, without Gavin/Solmonese’s

knowledge, investors in the LPs. Gavin/Solmonese has no economic interest in the

investment activities of NHBCP LPs in transactions that are not initiated by NHBCP.

Thus, a LP executing an acquisition that is not sourced by NHBCP results in no economic

benefit to NHBCP or Gavin/Solmonese.

14. Gavin/Solmonese’s standard agreements (which are utilized only in non-

bankruptcy engagements or in those bankruptcy cases where Gavin/Solmonese is engaged

by a Debtor in Possession) include a disclosure of NHBCP and provide both

Gavin/Solmonese’s clients and the lenders to Gavin/Solmonese’s clients with “opt-in” and

“opt-out” rights with respect to NHBCP consideration of any financing, investment or sale

opportunities that might arise with respect to that client. At all times, NHBCP and

Gavin/Solmonese adhere strictly to the Turnaround Management Association’s Code of

Ethics and, in particular with respect to NHBCP, Ethical Standard 2.7 (Ownership)2.

2 E.S. 2.7 Ownership:

(A) TMA recognizes the difficulties involved with respect to equity ownership of a troubled company client; (B) If a

member owns or obtains a direct or indirect financial interest in a client, such interest must be disclosed to creditors and

stockholders of the client on a timely basis, must be negotiated prior to the assignment and additional equity ownership

should not be negotiated during the course of an engagement; (C) If an equity interest in a troubled business client results

in the member gaining control of the client, the conditions and circumstances whereby the interest is obtained should be

set forth in writing and agreed to prior to commencement of the engagement. Equity interests held by parties affiliated

with the member shall be aggregated with the member's direct interest to determine whether or not the member would

control the client. The member should insist that the client obtain legal counsel to represent the client with respect to

negotiating and documenting the equity interest to be obtained by the member.


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15. Additionally, neither I, nor Gavin/Solmonese, nor any Employee or

professional of Gavin/Solmonese, nor any Associate of Gavin/Solmonese, insofar as I have

been able to ascertain:

a. is a creditor of the Debtor;

b. is a direct or indirect equity interest holder of the Debtor;

c. is or has been an officer within two years before commencement of

these Chapter 11 cases, director or employee of the Debtor or an “insider” of the Debtor as

that term is defined in § 101(31) of Title 11 of the United States Code, 11 U.S.C. § 101

(the “Bankruptcy Code”);

d. presently provides services to a creditor or equity interest holder of

the Debtor, or a person otherwise adverse or potentially adverse to the Debtor or the

Debtor's estate on any matter that is related to the Debtor or the Debtor's estates or, except

as described in paragraph 7 above, on any matter that is unrelated to the Debtor or the

Debtor's estate;

e. except as described in paragraph 7 above, has any other connection

with the Debtor, its creditors, the Trustee, the Office of the United States Trustee or any

employee of that office or any other parties in interest; or

f. has any other interest, direct or indirect, which may affect or be

affected by the provision of services proposed hereunder.

16. Gavin/Solmonese will provide services to no entity other than the

Committee in connection with this Chapter 11 case.

17. To the best of my knowledge, information and belief, except as set forth

herein, there are no other instances where Gavin/Solmonese has, has had, or might be


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deemed to have or have had connections with the Debtor, creditors, or other parties in

interest.

18. Gavin/Solmonese has not received a retainer.

19. Gavin/Solmonese has agreed to be employed by the Committee at the firm’s

customary, hourly rates for comparable matters and understands that the firm’s

compensation is to be paid and the expenses and costs are to be reimbursed upon

application to the Court and is subject to the Court’s approval and/or pursuant to any

administrative procedures established by order of the Court, after notice and a hearing.

Gavin/Solmonese anticipates that the following are the core team of advisors who will be

primarily responsible for this engagement and the current hourly rates, which

Gavin/Solmonese customarily charges for their services:

Edward T. Gavin, CTP $650.00/hour

Stanley Mastil $450.00/hour

The committee has requested, and Gavin/Solmonese has agreed to, a hybrid fee

arrangement that provides for a flat fee for the first two months of the case and a monthly

cap for each month thereafter. For the period starting July 18, 2016 through September 17,

2016, Gavin/Solmonese will receive a fee of $70,000 plus expenses; for each monthly

period starting September 18, 2016, Gavin/Solmonese will receive the lesser of its actual

hourly fees (billed in tenth of an hour increments) or $10,000, plus expenses. All fees will

be subject to approval by this Court after application by Gavin/Solmonese.

20. Other professionals, Employees and Associates at Gavin/Solmonese may be

called upon from time to time as the need and issues arise to provide services to the

Committee in respect of certain aspects of these Chapter 11 cases. Hourly rates of


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Employees and associates of Gavin/Solmonese range from $250.00 to $650.00 per hour.

Reasonable travel time will be charged at one-half of the applicable hourly rate unless

actual work is performed during such travel time, in which case the full hourly rate will be

charged. Gavin/Solmonese’s rates may change from time to time in accordance with

Gavin/Solmonese’s established billing practices and procedures. Gavin/Solmonese will

maintain detailed, contemporaneous records of time and necessary expenses provided or

incurred in connection with the rendering of the financial advisory services described

above by category and nature of the services rendered.

21. Gavin/Solmonese customarily and generally charges clients for the costs of

support services the firm provides in connection with provision of professional services,

including, without limitation, photocopying charges, long distance telephone calls,

facsimile transmissions, messengers, courier mail, secretarial and administrative overtime

and temporary services, travel, lodging and catering for meetings. Some of these services

are provided by Gavin/Solmonese, in which case the charges are set by Gavin/Solmonese,

and others are provided by third party service providers, in which case the charges are set

by the providers. Gavin/Solmonese will charge the cost of these expenses in a manner and

at rates consistent with charges generally made to the firm’s other clients. All such charges

for which Gavin/Solmonese seeks payment are subject to Court approval and/or pursuant

to any administrative procedure established by Order of the Court.

22. No agreement or understanding exists between Gavin/Solmonese and any

other person (other than members or employees of the firm as disclosed herein) to share

compensation received for services to be rendered in connection with services to be

provided hereunder. No representations have been received or made by Gavin/Solmonese


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nor any member or associate thereof, in respect of compensation in connection with these

cases other than in accordance with the provisions of the Bankruptcy Code.

23. By reason of the foregoing, I believe that Gavin/Solmonese is eligible for

employment and retention by the Committee pursuant to Sections 328 and 1103 of the

Bankruptcy Code and applicable rules of bankruptcy procedure.

Dated: July 19, 2016 By:_______________________________________

Edward T. Gavin, CTP


{11802-001 ORD A0445076.DOCX}Delaware Committee FA Retention Order Template.doc


In re:


Debtor.

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Chapter 11

Case No. 16-11599-MFW

Re: D.I. ______________

ORDER AUTHORIZING EMPLOYMENT AND RETENTION OF

GAVIN/SOLMONESE LLC NUNC PRO TUNC TO

JULY 18, 2016 AS FINANCIAL ADVISOR TO THE

OFFICIAL COMMITTEE OF UNSECURED CREDITORS

Upon consideration of the Application of the Official Committee of Unsecured

Creditors for an Order Pursuant to Bankruptcy Code Sections 328 and 1103 and

Bankruptcy Rule 2014 Approving the Employment and Retention of Gavin/Solmonese

LLC Nunc Pro Tunc to July 18 2016, as Financial Advisor to the Official Committee of

Unsecured Creditors (the “Application”)1; and the Court being satisfied, based upon the

representations made in the Application and the Declaration of Edward T. Gavin, CTP,

that Gavin/Solmonese LLC (“Gavin/Solmonese”) represents or holds no interests adverse

to the Debtor, its estate, or the Committee in connection with this case, and that the

employment of Gavin/Solmonese is necessary and is in the best interests of the Debtor's

estate; and it appearing that Gavin/Solmonese is a “disinterested person” as the term is

defined in Section 101(14) of the Bankruptcy Code; and it appearing that this Court has

jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334; and it appearing that

this proceeding is a core proceeding pursuant to 28 U.S.C. § 157(b)(2); and it appearing

1 All capitalized terms not otherwise defined herein shall assume the meanings ascribed to them in the

Application.


{11802-001 ORD A0445076.DOCX}

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that venue of this proceeding and this Application in this District is proper pursuant to 28

U.S.C. §§ 1408 and 1409; and it appearing that sufficient notice of the Application has

been given; and good cause having been shown, it is hereby

ORDERED that the Application is GRANTED as set forth herein; and it is further

ORDERED that the retention of Gavin/Solmonese as financial advisor to the

Committee to perform all of the services set forth in the Application on the terms set forth

in the Application is approved pursuant to Sections 328 and 1103 of the Bankruptcy Code,

nunc pro tunc to July 18 2016; and it is further

ORDERED that Gavin/Solmonese shall be compensated for financial advisory

work which will be billed on a tenth-of-an-hourly basis, in accordance with the procedures

set forth in Sections 328, 330 and 331 of the Bankruptcy Code, applicable Federal Rules of

Bankruptcy Procedure, Local Rules of the Court, any administrative order governing

professional fees in these cases, and any such procedures as may be fixed by order of this

Court; and it is further

ORDERED, that to the extent this Order is inconsistent with any prior order or

pleading with respect to the Application in these cases or the Advisory Agreement, the

terms of this Order shall govern; and it is further

ORDERED, that this Court retains jurisdiction with respect to all matters arising

from or related to the implementation of this Order.

Dated: ______________________, 2016 ________________________________

Wilmington, Delaware Honorable Mary F. Walrath

United States Bankruptcy Judge


Objections Due: August 15, 2016 at 4:00 pm ET Hearing Date ... · {11802-001 APPL A0445069.DOCX} 3...

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