1. The Application is granted as set forth herein.
2. In accordance with sections 327(a) and 328(a) of the Bankruptcy Code, Bankruptcy Rule 2014, and Local Rule 2014, the Debtors are authorized to employ and retain KPMG to provide audit and related services to the Debtors on the terms set forth in the Application and the Engagement Letter as modified by this Order, effective as of the Petition Date.
3. KPMG shall be compensated in accordance with sections 330 and 331 of the Bankruptcy Code, the Bankruptcy Rules, the Local Bankruptcy Rules, the U.S. Trustee Guidelines, this Order, and any other applicable orders of this Court.
4. Notwithstanding the prior paragraph, the fixed fees payable to KPMG pursuant to
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the Engagement Letter, are hereby approved as reasonable and shall be subject to review only pursuant to the standards set forth in section 328(a) of the Bankruptcy Code and shall not be subject to the standard of review set forth in section 330 of the Bankruptcy Code, except for the U.S.
Trustee, who shall have the right to object to any fees on any grounds as set forth below.
5. KPMG shall file interim and final fee applications for the allowance of compensation for services rendered and reimbursement of expenses incurred in accordance with the applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Bankruptcy Rules, the U.S. Trustee Guidelines, and any other applicable procedures and orders of this Court and consistent with the proposed compensation set forth in the Engagement Letter.
6. Notwithstanding anything to the contrary in the Bankruptcy Code, the Bankruptcy Rules, the Local Bankruptcy Rules, orders of this Court, or any guidelines regarding submission and approval of fee applications, with respect to services provided for fixed fees only, KPMG shall be required only to maintain time records in half-hour increments setting forth, in a summary format, a description of the services rendered by each professional and the amount of time spent on each date by each such individual in rendering services on behalf of the Debtors. For all other services to be provided on an hourly basis that are not included in the fixed fees services, KPMG’s retention shall be approved pursuant to section 327(a) of the Bankruptcy Code and subject to review under sections 330 and 331 of the Bankruptcy Code, the Bankruptcy Rules, the Local Bankruptcy Rules, this Order, and any applicable orders of this Court. With respect to the services provided on an hourly basis, KPMG will file time records one-tenth-hour increments.
7. Notwithstanding anything to the contrary in this Order, the U.S. Trustee and the Court shall retain the right and be entitled to object to KPMG’s fees and expenses in these cases based on the reasonableness standard provided for in section 330 of the Bankruptcy Code, and
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this Order shall not prejudice or otherwise affect the rights of the U.S. Trustee or the Court to challenge the reasonableness of KPMG’s compensation and reimbursement requests in these cases under sections 330 and 331 of the Bankruptcy Code. Accordingly, nothing in this Order or the record shall constitute a finding of fact or conclusion of law binding the U.S. Trustee or the Court on appeal or otherwise, with respect to the reasonableness of KPMG’s compensation and reimbursement requests in these cases.
8. The terms and conditions of the Engagement Letter, as modified by this Order, are approved.
9. To the extent the Debtors and KPMG enter into any additional engagement letter(s), including those with fixed fee structures, the Debtors will file such engagement letter(s) with the Bankruptcy Court and serve such engagement letters upon the applicable notice parties. If any of such parties object to the additional services to be provided by KPMG within 14 days of such new engagement letter(s) being served, the Debtors will promptly schedule a hearing before the Court.
All additional services and compensation structures, including fixed fees, will be subject to the provisions of this Order.
10. Prior to any increases in KPMG’s rates for any individual retained by KPMG and providing services in these cases, KPMG shall file a supplemental declaration with this Court and provide 10 business days’ notice to the Debtors, counsel to the Ad Hoc Noteholder Group and the U.S. Trustee. The supplemental declaration shall explain the basis for the requested rate increases in accordance with section 330(a)(3)(F) of the Bankruptcy Code and state whether the Debtors have consented to the rate increase. The U.S. Trustee and the Ad Hoc Noteholder Group retain all rights to object to any rate increase on all grounds including the reasonableness standard provided
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for in section 330 of the Bankruptcy Code and all rates and rate increases are subject to review by this Court.
11. Notwithstanding anything in the Application or the Engagement Letters to the contrary, KPMG shall (a) to the extent that KPMG uses the services of independent contractors, subcontractors, or employees of foreign or domestic affiliates or subsidiaries (collectively, the
“Contract Parties”) in these cases, KPMG shall pass-through the cost of such Contract Parties to the Debtors at the same rate that KPMG pays the Contract Parties, (b) seek reimbursement for actual costs only, (c) ensure that the Contract Parties are subject to the same conflict checks as required for KPMG, and (d) file with the Court such disclosures required by Bankruptcy Rule 2014.
12. Notwithstanding anything to the contrary in the Application or the Engagement Letter, KPMG shall not be entitled to reimbursement for fees and expenses of its counsel incurred in connection with any objection to its fees. In the event that, during the pendency of these cases, KPMG seeks reimbursement for any attorneys’ fees or expenses, the invoices and supporting time records from such attorneys shall be included in KPMG fee applications and such invoices and time records shall be in compliance with the Local Bankruptcy Rules and shall be subject to any U.S. Trustee Guidelines and approval of the Bankruptcy Court under the standards of sections 330 and 331 of the Bankruptcy Code, without regard to whether such attorney has been retained under section 327; provided, however, that KPMG shall not seek reimbursement from the Debtors’
estates for any fees incurred in defending any of KPMG’s fee applications in these chapter 11 cases.
13. KPMG will review its files periodically during the pendency of these chapter 11 cases to ensure that no conflicts or other disqualifying circumstances exist or arise. If any new
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relevant facts or relationships are discovered or arise, KPMG will use reasonable efforts to identify such further developments and will promptly file a supplemental declaration, as required by Bankruptcy Rule 2014(a).
14. The Debtors shall coordinate with KPMG to avoid any duplication of services provided by KPMG and any of the Debtors’ other retained professionals in these chapter 11 cases.
KPMG shall use reasonable efforts to avoid any such duplication.
15. To the extent that the express provisions of this Order are inconsistent with the provisions of the Application, the Engagement Letter, or the Declaration, the terms of this Order shall govern.
16. Notwithstanding anything in the Application or the Engagement Letter to the contrary, during the pendency of the chapter 11 cases, this Court retains exclusive jurisdiction over all matters arising out of and/or pertaining to KPMG’s engagement until such jurisdiction is relinquished.
17. During the pendency of the chapter 11 cases, this Court shall retain jurisdiction with respect to any matters, claims, rights or disputes arising from or related to the implementation of this Order.
Dated: December [__], 2020
Houston, Texas
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THE HONORABLE DAVID R. JONES UNITED STATES BANKRUPTCY JUDGE