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Chapter 11
Case No. 20-13056 (JTD) (Jointly Administered)
DECLARATION OF BRUCE GARBER IN SUPPORT OF THE DEBTORS’
APPLICATION FOR AN ORDER AUTHORIZING THE RETENTION AND EMPLOYMENT OF KEEN-SUMMIT CAPITAL PARTNERS LLC AS DEBTORS’
REAL ESTATE BROKER IN A VENTURE WITH BHJ REALTY, INC. D/B/A CENTURY 21
Bruce Garber, being duly sworn, states the following under penalty of perjury:
1. I am the owner and responsible broker of BHJ Realty, Inc. d/b/a Century 21 (“BHJ”).
2. I am duly authorized to make and submit this declaration (the “Declaration”) on behalf of BHJ in accordance with section 327 of title 11 of the United States Code, 11 U.S.C. §§
101-1532, as amended (the ”Bankruptcy Code”), Rules 2014(a) and 2016(b) of the Federal Rules of Bankruptcy Procedure (the ”Bankruptcy Rules”), and Rules 2014-1 and 2016-1 of the Local Bankruptcy Rules for the District of Delaware (the “Local Rules”) in connection with the application of the above-captioned debtors (the “Debtors”) for an order authorizing the Debtors to
1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number include: Lighthouse Resources Inc. (4713), LHR Coal, LLC (4799), KCP, Inc. (2558), Big Horn Coal Company (7087), Rosebud Coal Sales Company (9016), KCP Properties, Inc. (8372), Decker Holding Company, LLC (8881), Decker Coal Company, LLC (3731), Montana Royalty Holdings, LLC (1107), LHR Infrastructure, LLC (9619), Millennium Bulk Terminals-Longview, LLC (0354), Barlow Point Land Company, LLC (1398), Columbia Land Co., LLC (6826), and Gulf States Bulk Terminal, LLC (5870). The location of the Debtors’ service address in these chapter 11 cases is 10980 South Jordan Gateway, South Jordan, Utah 84095.
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employ and retain BHJ and Keen-Summit Capital Partners LLC (“Keen”) as its real estate broker (the “Application”).2
3. Unless otherwise stated in this declaration, I have personal knowledge of the facts set forth herein and, if called as a witness, I would testify thereto.
4. BHJ has been in existence since 1908 and became affiliated with Century 21 in 1978. I have been employed by BHJ since 1989 and in 2005 I purchased the company.
5. BHJ has extensive expertise in representing buyers and sellers in Wyoming and Montana. It has 22 agents, 3 of which are licensed brokers in the state of Wyoming and Montana.
BHJ has developed expertise in the purchase and sale of residential, agricultural, and commercial properties, particularly in Wyoming and Montana. BHJ is located in Sheridan, Wyoming where the majority of the real property is located and BHJ is only a few hours’ drive from the Rosebud Coal Company property in Hanna, Wyoming. In light of COVID-19 and travel restrictions, it is a benefit to the estate to have a broker close to the properties.
6. In addition, since my career began three decades ago, I have been the proud recipient of numerous real estate and business awards. Most notably, my team and I was awarded the 2014 Art Bartlett 2100 Cup Award, which honors one company annually that demonstrates exceptional community leadership. I also received the Business Person of the Year Award by the Sheridan County Chamber of Commerce. Over the years I have had the privilege to lead the YMCA, Sheridan County Board of Realtors, Big Horn Education Fund and CAST or the Fly Sheridan Group.
7. In connection with these chapter 11 cases, the Debtors have requested Court authorization to retain BHJ and Keen as its real estate broker. In this capacity, the professional
2 Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Application.
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services that BHJ will provide to the Debtors will be focused upon marketing the Debtors’ real properties in Wyoming, as set forth in Schedule A to the retention agreement dated December 23, 2020 (“Retention Agreement”) for the Debtors’ bidding and auction process. More particularly, BHJ’s services will include the following:
i. On request, review pertinent documents and will consult with Debtors’
counsel, as appropriate;
ii. Coordinate with Debtors the development of due diligence materials, the cost of which shall be Debtors’ sole responsibility;
iii. Develop, subject to Debtors’ review and approval, a marketing plan and implement each facet of the marketing plan;
iv. Communicate regularly with prospects and maintain records of communications;
v. Solicit offers for a Transaction;
vi. Assist Debtors in evaluating, structuring, negotiating and implementing the terms and conditions of a proposed Transaction;
vii. Develop and implement, subject to Debtors’ review and approval, an auction plan, including arranging auction logistics, assisting Debtors’
counsel with auction bid procedures, assisting Debtors to qualify bidders, and running a virtual auction on Zoom or a similar platform that may be designated by Debtors;
viii. Communicate regularly with Debtors and their professional advisors in connection with the status of its efforts; and
ix. Work with Debtors’ attorneys responsible for the implementation of the proposed Transactions, reviewing documents, negotiating and assisting in resolving problems which may arise.
20. BHJ is willing to act on behalf of the Debtors and to subject itself to the jurisdiction and supervision of the Court. Additionally, BHJ will coordinate with the other retained professionals in these bankruptcy cases to eliminate unnecessary duplication or overlap of work.
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Compensation
21. As set forth more fully in the Retention Documents (attached to the Application as Exhibit B), and subject in its entirety to the terms set forth in the Retention Documents, BHJ has agreed to accept compensation (subject to Section 328(a) review) and expense reimbursement (subject to Section 330 review) as follows:
Reimbursement of up to $35,000 for marketing related expenses; plus
Eight percent (8%) of the first four million dollars of Cash Proceeds (as defined in the Retention Agreement) from the Transaction; plus
Five percent (5%) of all Cash Proceeds in excess of four million dollars from the Transaction.
22. In the event a party holding a mortgage or lien on any of the Property acquires such Property by means of a credit bid and there are no Cash Proceeds involved in the Transaction, then the Broker shall have earned a (“Credit Bid Fee”) in lieu of the Transaction Fee, which: (a) in the event all of the Property is acquired by a credit bid, the Credit Bid Fee shall equal the greater of:
(i) the Transaction Fee calculated on the highest and best bid by a third party other than the credit bidder, or (ii) two hundred thousand dollars ($200,000); or (b) in the event only a portion of the Property is acquired by credit bid and other Transactions for other portions of the Property generate Cash Proceeds, then: (i) if (a) there are no offers on the Property that is the subject of the credit bid, and (b) Broker has earned and been paid a Transaction Fee on the other portions of the Property that are sold for Cash Proceeds, and (c) the aggregate of those Transaction Fees is less than $200,000, then the Credit Bid Fee shall be calculated as the difference between what Broker was actually paid and $200,000; or (ii) if: there are offers on the Property that is the subject of the credit bid, then the Credit Bid Fee shall equal the greater of the Transaction Fee calculated on the highest and best bid by a third party other than the credit bidder for that piece of Property and
$200,000 less the sum of all other Transaction Fees earned.
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23. The Credit Bid Fee shall be payable in cash at the closing by the credit bidding party. The Debtors shall not be responsible for paying the Credit Bid Fee but the Debtors shall not close on the transfer of title to a credit bidder without the credit bidder paying Broker the Credit Bid Fee, in cash, in full, at the closing.
24. The parties hereto recognize that it is difficult to ascertain a fair and reasonable Credit Bid Fee in all credit bid circumstances. In the event that this Agreement does not contemplate a credit bid scenario or one party is unsatisfied with the calculation of the credit bid, then the parties agree to work cooperatively to resolve any open items and submit any agreements or remaining disputes to the Bankruptcy Court for review and approval.
25. The above-referenced compensation and reimbursement provisions have been agreed upon by the parties in anticipation that a substantial commitment of professional time and effort will be required of BHJ and in light of the fact that such commitment may foreclose other opportunities for BHJ and that the actual time and commitment required of BHJ may vary substantially from week to week or month to month, creating “peak load” issues.
26. In this engagement, Keen and BHJ have agreed amongst themselves to be compensated in a manner consistent with each’s partner’s anticipated respective role and responsibilities in the venture. Other than as set forth in this Declaration and Application regarding the venture with Keen, to the best of my knowledge, (a) no commitments have been made or received by BHJ with respect to compensation or payment in connection with these cases other than in accordance with the provisions of the Bankruptcy Code and (c) consistent with section 504 of the Bankruptcy Code, BHJ will not share any compensation received by BHJ in connection with these chapter 11 cases with any other person or entity.
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27. In light of the foregoing, I believe that the proposed Transaction Fee or the alternative Credit Bid Fee is reasonable under the circumstances of this engagement.
28. As a professional seeking compensation consisting of a fixed fee and a contingent fee, BHJ seeks judicial review of its compensation pursuant to the standards of section 328(a) of the Bankruptcy Code and no other standard.
Disinterestedness and Eligibility
29. In connection with the preparation of this Declaration, BHJ conducted a review of its contacts with the Debtors that were made reasonably known to BHJ. A listing of the parties reviewed is reflected on Schedule 1 to this Declaration. I reviewed Schedule 1 and based upon my personal knowledge have identified on Schedule 2 to this Declaration those persons or entities with whom, to the best of my knowledge, we have some connection.
30. As a matter of full disclosure and as noted in the Schedule 2, BHJ has connections with the following and in the following manner:
a. First Interstate: I am on the Board of Directors and hold shares of stock;
b. Kayleen A. Gilliland, Rep. is a past and future client;
c. Memorial Hospital-Sheridan: My father is on the hospital’s board and I regularly donate to their foundation;
d. Sheridan County Chamber: Rosemary Garber is a member of their Executive Board of Directors and is a Chamber Ambassador; and
e. Sheridan County YMCA: I previously served on the Board of Directors for 17 years, but I am not currently a director.
31. Based upon the results of our review, to the best of my knowledge, after due inquiry and except as otherwise disclosed in this Declaration, neither I nor BHJ represent or hold any interest adverse to the Debtor, the Trustee or the Debtor’s estate in the matters upon which BHJ is
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to be engaged. To the best of my knowledge, BHJ’s relationship with any parties on Schedule 2 in no way involves such parties’ rights in the Debtors’ cases.
32. Furthermore, neither BHJ nor I have any connection to any of the judges of the United States Bankruptcy Court for the District of Delaware, the Office of the United States Trustee, or any person employed in the Office of the United States Trustee. In the event I subsequently learn of any such connections, I will submit a supplemental affidavit detailing any such connections to the Court.
33. In the ordinary course of business, BHJ has or may reasonably expect to have in the future, professional relationships with the professional law firms, accounting firms, or other professional firms or other parties in this case. All of those relationships are or are expected to be unrelated to this case.
34. In light of the foregoing, I believe that each of BHJ and myself (a) are each a
“disinterested person” as that term is defined in section 101(14) of the Bankruptcy Code, as modified by section 1107(b); and (b) do not hold or represent an interest adverse to the Debtors’
estates.
35. BHJ is a “disinterested person” as that term is defined in 101(14) of the Bankruptcy Code in that BHJ: (a) is not a creditor, equity security holder or insider of the Debtor; (b) is not and was not, within two years before the date of the order for relief entered in these cases, a director, officer or employee of the Debtor; and (c) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders. BHJ has not received any payments directly from the Debtors in the three (3) months prior to the start of this bankruptcy case.
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Pursuant to 28 U.S.C. §1746, I certify under penalty of perjury that the foregoing is true and correct.
Dated: December 23, 2020 By: /s/ Bruce Garber
Bruce Garber Responsible Broker BHJ Realty, Inc.
101 S. Main St.
Sheridan, WY 82801 Telephone: (307) 752-2013
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Schedule 1 Parties in Interest
4850-6077-7941 Barlow Point Land Company, LLC
Columbia Land Co., LLC Gulf States Bulk Terminal, LLC Former Names of Debtors
Prior names of Lighthouse Resources Inc:
Ambre Energy, North America, Inc.
AE Group Holdings, Inc.
Prior names of LHR Infrastructure, LLC:
AE Infrastructure, Millennium Bulk Logistics, Inc.
Prior name of LHR Coal Marketing, LLC:
AE Coal Marketing, LLC
Prior name of Montana Royalty Holding, LLC:
Montana Royalty Co
Prior name of Decker Holding Co., LLC:
Decker Coal Inc.
Prior name of Decker Coal Company, LLC:
Decker Coal Company
Non-Debtor Affiliated Entities Lighthouse Products LLC Black Butte Coal Company
Current & Former Officers & Directors Everett King
Resource Capital Fund V L.P.
Resource Capital Fund VI L.P.
RCF V Annex Fund L.P.
Bank of New York Mellon
Bankruptcy Judges for the District of Delaware & Staff
Chief Judge Christopher S. Sontchi Cheryl Szymanski
4850-6077-7941
United States Trustees for District Three and Staff
American Guarantee and Liability Insurance Company
Arch Coal Arch Resources
Atlantic Specialty Insurance Company Colonial American Casualty and Surety Company
Fidelity and Deposit Company of Maryland
Northwest Alloys, Inc.
Intact Insurance Specialty Solutions f/k/a OneBeacon Surety Group
Cloud Peak Energy Resources, Inc.
Triumph Aerospace Systems
Blue Cross Blue Shield of Wyoming Principal Life Insurance Company Regence Blue Cross Blue Shield of Utah Regence Blue Cross Blue Shield of Montana Kaiser Permanente
4850-6077-7941
Insurers, Issuers of Surety Bonds, and Premium Financing Agreement Parties ACE American Insurance Company (Starr Tech)
ACE Property & Casualty Insurance Company
AFB Lloyd’s Syndicate AIG
American Guarantee and Liability Insurance Company
AmTrust North America (RT Specialty) Aspen Specialty Insurance Company Aspen Insurance UK Ltd. (Lloyd’s) Atlantic Specialty Insurance Company Axis Surplus Insurance Company Beazley (Lloyds)
Colonial American Casualty and Surety Company
CorePointe Insurance Company
Endurance American Insurance Company Endurance American Specialty Insurance Company
Fidelity and Deposit Company of Maryland Great American Insurance Company of NY Houston Specialty Insurance Company (HIIG)
Imperium Insurance Company (HIIG)
Intact Insurance Specialty Solutions f/k/a OneBeacon Surety Group
National Union Fire Insurance Company Old Republic Insurance Company
Republic- Vanguard Insurance Company Sompo
Starr Surplus Lines Insurance Company The Insurance Company of the state of Pennsylvania
Travelers Property Casualty Company of America Washington Division of Natural Resources Washington Environmental Council Sierra Club
Columbia Riverkeeper
Friends of the Columbia Gorge Climate Solutions
Torque Tools
Major Secured Lenders Resource Capital Fund V L.P.
Resource Capital Fund VI L.P.
RCF V Annex Fund L.P.
Parties to Real Estate Contracts Alfred Visborg
Deanna Visborg Barry Mann Brett DeLapp
Flying V Cattle Company George and Dixie Holmes George Baker
George Penson
4850-6077-7941
Rock Springs Land & Livestock, LLC Sheridan County Conservation District State of Montana Department of Natural Resources and Conservation, State Board of Land Commissioners
State of Montana Department of Natural Resources and Conservation, Trust Land Management Division
State of Montana Department of Natural Resources and Conservation
State of Wyoming
The State Highway Commission of Wyoming
Todd and Cori Enders
Transportation Commission of Wyoming Triumph Aerospace Systems
Tucker Smith
US Department of the Interior, Bureau of Land Management
Western AgCredit FLCA
Wyoming Game and Fish Commission Vendors, Customers, Potential Creditors 4 Corners Farm & Garden
A & I Distributors of Billings A Plus Plumbers & Appliance Repair A&B Buildings All Battery Sales and Service All County Locating Services, LLC All State Fire Equipment of Texas All-American Publishing American Welding & Gas, Inc.
Anchor QEA
Anderson Environmental Contracting, LLC Anderson Services, Inc.
Andrew Conrad Anixter Inc.
Annette Cleveland for State Senate Annie Greenthumbs Anthony Schroeder
4850-6077-7941 Associated Sales & Bag Co.
Association of Washington Business
Bay Valve Service & Engineering, LLC Beacon Hill Extreme Team Booster Club Belzona Rocky Mountain Inc
Big Horn Mtn Trauma Conference Big Horn Tire, Inc. Black Hawk Crane & Rigging Black Rock Industrial Crane, LLC Black Rock Mine Service Blasters Tool & Supply Co.
Bloedorn Lumber
Blue Cross Blue Shield of WY Blue Orbis Logistics, LLC Bomber Mountain Field Services Bond Properties
Border States Electric Company Border States Electric Supply Boundary Equipment Co. Canada Bozarth, Abigail
4850-6077-7941
Bricklayers and Allied Craftworkers Union
Brook Mining Company, LLC Bryant Ideas
Buckingham Lumber Co., Inc.
Buckley Powder Co. Campbell Crane & Rigging, Inc.
Candlewood Suites Sheridan
Charlene P. Carlat Irrevocable Charley Carlat
Chase Cardmember Services Chase CCD Purchases
Chemical Waste Mgmnt of the NW Chevron
Children’s Discovery Museum Chinook Ventures, Inc.
Chmelik Sitkin & Davis P.S.
Chris Sorenson Christopher Gulley Cintas Corporation
Cisco Systems Capital Corporation Citizens for Brad Klippert
Citizens to Elect Steve Conway Clair Company Inc.
Claisse
Classic Performance & Tuning LLC Clearwater Environmental Services, Inc.
Columbia Security Service & Systems, Inc.
Colonial Life
Columbia Theatre Association Commissioner of State Lands Committee to Elect Bob McCaslin
4850-6077-7941
Committee to Elect Brandon Vick Committee to Elect Doug Ericksen Committee to Elect Ed Orcutt Committee to Elect Joel Kretz Committee to Elect JT Wilcox
Committee to Elect Kevin Van de Wege Committee to Elect Mary Dye
Committee to Elect Matt Shea Committee to Elect Steve Hobbs Committee To Elect Tim Sheldon Committee to Re-Elect DeBolt Communication Technologies, Inc.
Community Home Health & Hospice Community House on Broadway Compression Leasing Svs., LLC CompuNet Inc.
Connie’s Glass Shop Conrad J. Stewart
Consolidated Electrical Distributors Control Concepts Inc
Cowlitz County 4-H and FFA Youth Livestock Sale
Cowlitz County Habitat for Humanity Cowlitz County Health Dept
Cowlitz County Treasurer Cowlitz PUD
Cowlitz County Veterans Service Center Cowlitz Economic Development Council Cowlitz Regional Conference Center Cowlitz River Rigging
Craftco Metals Services, Inc.
Craig Osborne
Crown Products & Services, Inc.
CRU International Ltd.
Crum Electric Supply Co Inc Cummins Intermountain LLC
Cummins Rocky Mountain Inc. Davis, Graham & Stubbs, LLP Day Wireless Systems
Deborah Paterakis Deep Seven Archive & Shred Delaware Secretary of State Delcon Crane Certificators, Inc.
Delcon Crane Certifiers, LLC Dell Computers
Denali Heating & Air Conditioning LLC Denise A. Paulson
Department of Ecology, State of Washington
Department of the Interior - BLM Derek McArthur Detector Electronics dba RMI DEX.YP Dimensional Strategies, Inc.
4850-6077-7941 Dragline Service Specialties Drive Train Industries Inc Drives & Controls Services, Inc.
DRM Inc.
DSU Peterbilt & GMC Inc.
DTC Doyle Trading Company
Equipment Maintenance Service Eric Fuller & Associates, Inc.
Eric Nyback
Excel Foundry & Machine, Inc.
Express Toll F & H Mine Supply Inc.
Fairmont Supply Co - Industrial Fairway 17 Incorporated
Farmers Co-Op Oil Company Fastenal Industrial & Const Supp Father’s House Church Fremont Motors Sheridan, Inc.
4850-6077-7941
Friends of Jim Walsh
Friends of the East Fork Lewis River Friends to Elect Vicki Kraft
Frontier Precision, Inc. Generator & Starter Shop, Inc.
Genetec Inc.
Good News Cowboy Ministries, Inc Gordon Rhoades
Health Care Service Corp. COBRA Health Care Service Corporation Huser Sales & Service Inc.
IBEW-Local 48
4850-6077-7941
IC Group
ICF Jones & Stokes, Inc.
Idaho Power Company (Idaho Company) IHS Markit Agribusiness
Idaho Power Company (Idaho Company) IHS Markit Agribusiness