2021-03-16_GENERAL DOCUMENTS - C1980004

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Case 1:20-bk-12043 Doc 643 Filed 03/03/21 Entered 03/03/21 18:42:10 Desc Main Document Page 5 of 20 f Case 1:20-bk-12043 Doc 643 Filed 03/03/21 Entered 03/0312118:42:10 Desc Main Document Page 6 of 20 release language of Paragraph 4(a) of the Settlement Agreement and specifically preserves "any and all rights and claims of the DIP Secured Parties and the Prepetition Secured Parties and any of their respective assignees and designees relating to the sale." As noted, above, that sale is governed by the Sale Order, which makes certain modifications to the Final DIP Order with respect to the reimbursement of the lenders' professional fees but otherwise specifically acknowledges that the Final DIP Order remains unaltered and in place and leave intact the right ofthe DIP Secured Parties and the Prepetition Secured Parties to have the DIP Fees and Expenses and the Adequate Protection Fees and Expenses, respectively, paid by the estates (again, subject only to the limitation on the lenders' professional fees set forth in the Sale Order). It would be perverse to read the Settlement Agreement and Joinder as causing the Cortland/AD—as a joinder party to the Settlement Agreement, signed in its capacity as agent to the lenders— to give up rights that the lenders themselves did not release by signing the Settlement Agreement. Accordingly, the Debtors should be directed to pay Cortland/AD the DIP Fee and reimburse the expenses of its counsel pursuant to the Final DIP Order without further delay. Jurisdiction and Venue 8. This Court has jurisdiction to consider this Application pursuant to 28 U.S.C. § 1334 and the automatic reference of all bankruptcy cases to this Court pursuant to the Amended General Order 05-02 ofthe United States District Court for the Southern District of Ohio. 9. This is a core proceeding pursuant to 28 U.S.C. § 157(b), and to the extent it is later determined that this Court, absent the consent of the parties, cannot enter final orders or -judgments in connection herewith consistent with Article III of the United States Constitution, Cortland confirms its consent to the entry of a final order on this Application by the Court. 10. Venue is proper before the Court pursuant to 28 U.S.C. §§ 1408 and 1409. 039 Case 1:20-bk-12043 Doc 643 Filed 03/03/21 Entered 03/03/21 18,42,10 Desc Main Document Page 7 of 20 17. On August 12, 2020, the Court entered the Final DIP Order, a true copy of which is attached as Exhibit A. 18. Paragraph 9(b)(iii) ofthe Final DIP Order approved the payment by the Debtors of Alter Domus (US)'s fees and expenses, including agency fees and the fees of its professionals in connection with these chapter 11 cases, defined as "(the "DIP Fees and Expenses"), without the need to file retention motions or fee applications or to provide notice to any party." As noted above, when the DIP Facility was funded, the Debtors should have paid the DIP Fee as part of the DIP Fees and Expenses. However, the Debtors failed to do so. 19. Paragraph 18 of the Final DIP Order granted the Prepetition Secured Parties, including Cortland as the Prepetition Agent and Prepetition Collateral Agent, adequate protection "pursuant to sections 361, 362, 363(e), 364(d)(1) and 507 ofthe Bankruptcy Code." 20. Paragraph 18(d) of the Final DIP Order further provides that the Prepetition Secured Parties adequate protection shall include, "current cash payments of the reasonable and documented prepetition and postpetition fees and expenses of the Prepetition Agent ... in accordance with the Prepetition Credit Agreement ("Adequate Protection Fees and Expenses"), subject to the review procedures set forth in paragraph 27 of this Final Order." 21. Paragraph 27 of the Final DIP Order contains no such review procedures and instead addresses the effect ofthe Debtors' stipulations in the Final DIP order on third parties and establishes deadlines and procedures for the Committee to challenge the validity, extent, and priority ofthe Prepetition Debt and the Prepetition Liens. Presumably, Paragraph 18(d)'s reference to "review procedures' should have been to Paragraph 25, which is labeled "Payment of Fees and Expenses" and in fact includes procedures for the payment of the DIP Fees and Expenses and the Adequate Protection Fees and Expenses and reads as follows: 11. The bases for the relief requested herein are sections 361, 363(b), 363(c), 364(d), 507, and 507 of title 11 ofthe United States Code, 11 U.S.C. §§ 101-1532 (the "Bankruptcy Code"), Rule 2002 and 9014 of the Federal Rules of Bankruptcy Procedure (the `Bankruptcy Rules"), the Local Bankruptcy Rules for the Southern District of Ohio (the "Local Bankruptcy Rules") and the Final DIP Order. Background 12. Prior to the commencement of these chapter 11 cases, Cortland was the administrative agent and collateral agent pursuant to the Debtors' Prepetition Credit Agreement, dated as of December 27, 2017. At that time, Cortland was an industry -leading, independent investment servicing company providing third -part fund administration and middle and back - office outsourcing to financial institutions, including for as the Prepetition Lenders under the Prepetition Credit Agreement. 13. On March 22, 2018 Alter Domus, a Luxembourg -based provider of Fund and Corporate Services to alternative investment managers completed its acquisition of Cortland, and Cortland's business was re -branded under the "Alter Domus" time as Alter Domus (US) LLC for all new agency deals following this acquisition. 14. On July 22, 2020 (the "Petition Date'), each Debtor filed a voluntary petition for relief pursuant to chapter II ofthe Bankruptcy Code in this Court. 15. In connection with the DIP Facility, the DIP Lenders asked Cortland/AD to have Alter Domus (US) LLC serve as the DIP Administrative Agent and the DIP Collateral Agent. 16. On July 30, 2020, the United States Trustee appointed the Official Committee of Unsecured Creditors (the "Committer'). Minctsri Case 1:20-bk-12043 Doc 643 Filed 03/03/21 Entered 03/03/2118:42:10 Desc Main Document Page 8 of 20 Payment of Fees and Expenses. The Credit Parties are authorized to pay the DIP Fees and Expenses, as provided in the DIP Documents and in accordance with the Approved Cash Flow Forecast. Subject to the review procedures set forth in this paragraph 25, payment of all DIP Fees and Expenses and Adequate Protection Fees and Expenses shall not be subject to allowance or review by the Court. Professionals for the DIP Secured Parties and the Prepetition Secured Parties shall not be required to comply with the U.S. Trustee fee guidelines, however any time that such professionals seek payment of fees and expenses from the Debtors after the closing ofthe DIP Facility and prior to confirmation of a chapter I 1 plan, each professional shall provide summary copies of its invoices (which shall not be required to contain time entries and which may be redacted or modified to the extent necessary to delete any information subject to the attorney -client privilege, any information constituting attorney work product, or any other confidential information, and the provision of such invoices shall not constitute any waiver of the attorney client privilege or of any benefits of the attorney work product doctrine) to the Debtors, the U.S. Trustee and counsel for the Creditors' Committee (together, the "Review Parties")- Any objections raised by the Review Patties with respect to such invoices must be in writing and state with particularity the grounds therefor and must be submitted to the applicable professional within ten (10) days of the receipt of such invoice (the "Review Period'). If no written objection is received by 12:00 p.m., prevailing Eastern Time, on the end date of the Review Period, the Credit Parties shall pay such invoices within three (3) days. If an objection to a professional's invoice is received within the Review Period, the Credit Parties shall promptly pay the undisputed amount of the invoice and this Court shall have jurisdiction to determine the disputed portion of such invoice if the parties are unable to resolve the dispute consensually. Notwithstanding the foregoing, the Debtors are authorized and directed to pay on or after the Closing Date the DIP Fees and Expenses and Adequate Protection Fees and Expenses incurred on or prior to such date without the need for any professional engaged by the DIP Secured Parties or the Prepetition Secured Parties to first deliver a copy of its invoice or other supporting documentation to the Review Parties (other than the Debtors). No attorney to the DIP Secured Parties or any Prepetition Secured Party shall be required to file an application seeking compensation for services or reimbursement of expenses with the Court. Final DIP Order ¶ 25. 22. On September 4, 2020, this Court entered the Order (I) Approving the Sale of Substantially all of the Debtors' Assets Free and Clear of All Non -Assumed Liens, Claims, Encumbrances, andlnterests; (H) Approving the Assumption and Assignment of Certain Executory Contracts and Unexpired Leases; and all) Granting Related Relief [Related to Docket No. 26] (Docket No. 410, the "Sale Order'). A true copy ofthe Sale Order is attached as Exhibit B.