united states bankruptcy court for the northern …omnimgt.com/cmsvol2/pub_47269/725876_1201.pdf68...

36027/2 04/02/2019 204015898.1

UNITED STATES BANKRUPTCY COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

In re:

MISSION COAL COMPANY, LLC, et al.,

Debtors.

Chapter 11

Case No. 18-04177-TOM11

Jointly Administered

THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS’ WITNESS AND

EXHIBIT LIST FOR APRIL 3, 2019 HEARING

The Official Committee of Unsecured Creditors (the “Committee”) of Mission Coal

Company, LLC and its debtor affiliates (the “Debtors”), respectfully submit this Witness and

Exhibit List (the “List”) for the Debtors plan confirmation hearing to begin on April 3, 2019 at

9:00 am (prevailing Central Time) (the “Hearing”).

EXHIBIT LIST

Exhibit

No.

Bates Description Offered Objection Admitted

UCC-1 CB00000261 December 31, 2016

engagement

information

spreadsheet

assembled by Cherry

Bekaert with project

schedule.

UCC-2 CB00033021 Mission Coal's 2016

equity rollforward

prepared by Josh

Stickley of Cherry

Bekaert.

UCC-3 CB00053376 Mission Coal's 2017

equity rollforward

prepared by Josh

Case 18-04177-TOM11 Doc 1201 Filed 04/02/19 Entered 04/02/19 16:56:47 Desc Main Document of 18

-2-

Stickley of Cherry

Bekaert.

UCC-4 CLARKE_10012136 Mission Coal's cash

position as of

October 23, 2017

prepared by Bill

Campbell.

UCC-5 CLARKE_10013209 Mission Coal's cash

position as of

November 30, 2017

prepared by Bill

Campbell.

UCC-6 CLARKE_10014040 December 31, 2017

email from Ken

McCoy to Tom

Clarke re

management fees.

UCC-7 CLARKE_10014856 August 13, 2018

email from Ken

McCoy to Tom

Clarke forwarding

Bill Campbell's

email complaining

about Charles

Ebetino's

management fee

invoice.

UCC-8 CLARKE_10014857 Invoice dated

08/05/2018 for

48,528.79 from

ENCECo to Mission

Coal.

UCC-9 CLARKE_10015227 February 6, 2018

email from Bill

Campbell re "Cash

Crisis" to Mike

Zervos and Alan

Jones and copying

Ken McCoy, Tom

Clarke, Jason

McCoy, and Charles

Ebetino.

UCC-

10

CLARKE_10015655 March 08, 2018

email from Bill

Campbell re "Cash

Position" to Mike


-3-

Zervos, Ken McCoy,

Jason McCoy, Tom

Clarke, Charles

Ebetino, and George

Mickum.

UCC-

11

CLARKE_10015684 March 19, 2018

email from Bill

Campbell re "Cash

Position" to Mike

Zervos, Ken McCoy,

Jason McCoy, Tom

Clarke, Charles

Ebetino, and George

Mickum.

UCC-

12

CLARKE_10064328 March 5, 2018 email

from Bill Campbell

re "Cash" to Mike

Zervos, Ken McCoy,

Jason McCoy, Tom

Clarke, Charles

Ebetino, and David

Fortner

UCC-

13

CLARKE_10064329 Mission Coal's

March 2018 cash

position.

UCC-

14

CLARKE_10064498 April 7, 2018 email

from Bill Campbell

re "Cash Position" to

Mike Zervos, Ken

McCOy, Jason

McCOy, Charles

Ebetino, and David

Fortner

UCC-

15

CLARKE_10069005 September 8, 2018

email from Charles

Ebetino to Tom

Clarke re

"Recommended

Directors for

Seminole"

UCC-

16

CLARKE_10069006 David G. Heiman,

Esq. Biography

UCC-

17

CLARKE_10069007 Anthon Horton’s CV


-4-

UCC-

18

CLARKE_10102426 May 11, 2017 email

from Bill Campbell

re Weekly Cash

Requirements to Ken

McCoy, Tom Clarke,

Jason McCoy,

Charles Ebetino,

George Mickum and

Mike Zervos

UCC-

19

CLARKE_10102427 Mission Coal and

Federal Minimum

Cash Requirements

"Fixed Costs"

UCC-

20

CLARKE_10108224 June 28, 2018 email

from Bill Campbell

re "Taxes Due 2018"

to Mike Zervos, Ken

McCoy, Jason

McCoy, Tom Clarke,

Chuck Ebetino, and

David Fortner

UCC-

21

CLARKE_10108225 Mission Coal's 2018

Taxes Owed

UCC-

22

CLARKE_10113769 May 15, 2017 email

from Bill Campbell

re "Cash Position" to

Ken McCoy, Tom

Clarke, Jason

McCoy, Charles

Ebetino, Brent

Mickum, Mike

Zervos and Alan

Jones

UCC-

23

McCoy010487 January 12, 2016

email from Tom

Summers to Jason

McCoy re "Wires

Sent"

UCC-

24

McCoy016886 Execution Copy of

the April 11, 2017

Member Interest

Purchase Agreement

UCC-

25

McCoy018088 June 13, 2017 email

from David Turner

re "Management

Fees" to David


-5-

Turner Joshua

Stickley and Jason

McCoy.

UCC-

26

McCoy018093 January 1, 2016

(back-dated)

"Management

Agreement" between

Iron

Management,LLC,

Lara Natural

Resources, and

Seneca Coal

Resources, LLC.

UCC-

27

McCoy018773 October 28, 2016

email from David

Turner to Jason

McCoy re

"Distribution"

UCC-

28

McCoy020205 November 14, 2017

email from Astricka

Wilhelm to Jason

McCoy and George

Mickum attaching a

"Copy of Owner

Distribution

Summary".

UCC-

29

McCoy020206 November 28, 2016

Owner Distribution

Summary

UCC-

30

MISSIONCOAL00000306 December 31, 2016

(believed to be back-

dated) ERP Federal

Mining Complex,

LLC, Non-

Negotiable, On

Demand, Unsecured

Revolving

Promissory Note.

UCC-

31

MISSIONCOAL00000309 June 30, 2017

(believed to be back-

dated) ERP Mineral

Reserves, LLC, Non-

Negotiable, On-

Demand, Unsecure

Promissory Note.

UCC- MISSIONCOAL00003094 Sources and uses of


-6-

32 MCF Loan

UCC-

33

MISSIONCOAL00003184 Board Members

Expense

Reconcilliation

UCC-

34

MISSIONCOAL00003188 Mission Coal Owner

Compensation and

Fees Summary

UCC-

35

MISSIONCOAL00003190 Mission Coal

"Owner/Other Fees

2018" Document

UCC-

36

MISSIONCOAL00015523 April 30, 2018 letter

from Cherry Bekaert

to Mission Coal re

accounting problems.

UCC-

37

MISSIONCOAL00016638 January 18, 2018

(incorrectly dated as

2017) letter from EY

to Alan Jones re

"Valuation to

estimate Fair Market

Value of . . . Equity

in Seneca Coal

Resources and

Seminole Coal

Resources"

UCC-

38

MISSIONCOAL00017102 April 30, 2018

Mission Coal Audit

Report by Cherry

Bekaert

UCC-

39

MISSIONCOAL00019594 September 28, 2018

Member Interest

Purchase Agreement

UCC-

40

MISSIONCOAL00021335 October 2, 2016

email from Bill

Campbell re "Cash"

to Robert McAtee

UCC-

41

MISSIONCOAL00021458 Novermber 9, 2016

email from Bill

Campbell re

"Management Fees"

to Bill Hunter

UCC-

42


email from Bill

Campbell re

"Seneca/Zhengzhuo

Mortgages - Need


-7-

Coding" to Jennifer

Bell

UCC-

43

MISSIONCOAL00029147 May 18, 2018

"Equiptment Purchas

and Sale Agreement"

UCC-

44

MISSIONCOAL00029402

(excerpt)

June 8, 2017

"Unconditional

Guaranty of Payment

and Performance . . .

In favor of Bay Point

Capital Partners, LP"

UCC-

45


"Solvency

Certificate" for

Mission Coal

Company, LLC

UCC-

46

MISSIONCOAL00039108 November 26, 2018

email from Mike

Morgus to Alan

Jones and Janie

Adams re "Update

Schedule Request

5.11" discussing

taxes.

UCC-

47

MISSIONCOAL00039109 "Copy of 5.11 Tax

Returns and Reports

Updates"

UCC-

48


email from Luke

Javernik "re Legal

and Tax Questions

from Arcelor"

UCC-

49


Company LLC's Tax

Calendar

UCC-

50


Company LLC's Tax

Due Dilligence

UCC-

51

MISSIONCOAL00040875 July 26, 2018 email

from Charles Ebetino

re "Bay Point $4.0

million" to Ken

McCoy, Jason

McCoy, and Tom

Clarke


-8-

UCC-

52

MISSIONCOAL00041902 May 7, 2018 email

from Bill Campbel to

Mike Zervos re

"Cash Position"

UCC-

53

MISSIONCOAL00044938 February 28, 2018

email from Rodney

Thorton re

"intercompany

amounts" to Alan

Jones

UCC-

54


email from Bill

Campbell re "Cash

Position" to Ken

McCoy, Jason

McCoy, Tom Clarke,

Charles Ebetino,

Mike Zervos, David

Fortner and Alan

Jones.

UCC-

55

MISSIONCOAL00045011 February 2018 Cash

Position Spreadsheet

UCC-

56


email from Bill

Campbell re "$31

Million" to Mike

Zervos and Alan

Jones

UCC-

57


email from Bill

Campbell re "Cash

Position" to Mike

Zervos and Alan

Jones and copying

Ken McCoy, Tom

Clarke, Jason

McCoy, and Charles

Ebetino.

UCC-

58


email from Jason

McCoy re "Funding"

to Bill Campbell,

Mike Zervos, and

Alan Jones


-9-

UCC-

59


email from Bill

Campbell re "Cash

Position" to Ken

McCoy, Jason

McCoy, Tom Clarke,

Charles Ebetino, and

Mike Zervos.

UCC-

60


email from Bill

Campbell re "Cash

Position" to Ken

McCoy, Jason

McCoy, Tom Clarke,

Charles Ebetino, and

Mike Zervos

UCC-

61

MISSIONCOAL00045655 April 11, 2017,

guaranty by Thomas

M. Clarke in favor of

Mission Coal

Funding, LLC

UCC-

62


email from Bill

Campbell re "Cash

Position" to Ken

McCoy, Thomas

Clarke, Jason

McCoy, and Charles

Ebetino

UCC-

63


email from Alan

Jones re "Complaint

Fuels Payroll

Funding" to David

Turner and Mike

Morgus

UCC-

64


email from Rodney

Thorton re "ERP

Mineral

Distributions" to Bill

Campbell.

UCC-

65

MISSIONCOAL00053804 March 9, 2018 email

from Alan Jones re

April 11, 2017

Member Interest


-10-

Purchase Agreement.

(attaching April,

2017 member

interest purchase

agreement).

UCC-

66

MISSIONCOAL00053805 April 11, 2017

Member Interest

Purchase Agreement

UCC-

67


Credit Agreement

UCC-

68


email from Alan

Jones re "Seneca

Fees" to Charles

Ebetino, Erin

Deacon, and Jennifer

Bell

UCC-

69

MISSIONCOAL00060471 August 14, 2017

email from Bill

Campbell re "Cash

Position" to Ken

McCoy, Charles

Ebetino, Tom

Clarke, Mike Zervos,

Brent Mickum, Alan

Jones, and Jason

McCoy.

UCC-

70


email from Jason

McCoy to David

Turne re

"Distribution from

Mineral Reserves"

UCC-

71

MISSIONCOAL00074130 Saturday March 17,

2018 email from Bill

Campbell to Mike

Zervos re "Cash

Needs"

UCC-

72

MISSIONCOAL00086196 August 10, 2018

email from Rodney

Thorton to Joshua

Stickley re "External

MCF Expenses"

UCC-

73


Seneca Coal

Resources Non-


-11-

Negotiable,

Unsecured

Revolving

Promissort Note

UCC-

74


email from Mike

Zervos to Ken

McCoy re "Air travel

Reimb"

UCC-

75


"Agreement

Regarding

Satisfaction of

Promissory Note"

UCC-

76


email from Alan

Jones re "Federal" to

Bill Campbell, Ken

McCoy, and Mike

Zervos.

UCC-

77


email from Alan

Jones re "Seminole

Coal Resources" to

Mike Zervos

UCC-

78

MISSIONCOAL00153883

Excerpt

May 21, 2018

$15,300,000 Secured

Loan with Bay Point

Capital Partners, LP

as Lender to Coking

Coal Leasing, LLC

as Borrower

UCC-

79


email from Charles

Ebetino re "Seneca

Loan 30% Fee

Rebate" to Charles

Andros

UCC-

80

MISSIONCOAL00212760 January 2018

Mission Coal

Company "Affiliated

Balances

Discussion"

Presentation

UCC-

81


email from Alan


-12-

Jones re "Seneca

Promissory Note to

Seminole" to Charles

Ebetino

UCC-

82


email from Mike

Zervos re "Ken

McCoy loans to

Seneca" to Ken

McCoy

UCC-

83


email from Bill

Campbell re "Ken

McCoy loans to

Seneca" to Ken

McCoy

UCC-

84

MISSIONCOAL00267746 June 13, 2017 email

from Jason McCoy

re "Conum Daily

Cash Forecast" to

Nimesh Patel

UCC-

85

MISSIONCOAL00267747 Conuma US Funds

Account Statement

UCC-

86

MISSIONCOAL00267749 June 12, 2017 email

from Nimseh Patel re

"Conuma Daily Cash

Forecast" to Ken

McCoy

UCC-

87


email from Charles

Ebetino re "Mission

Coal Audit Update"

to Mark Bartkoski

UCC-

88


Second Amended

and Restated Note in

favor of Mission

Coal Funding, LLC,

Lender

UCC-

89

MME00004841 February 8, 2018

Owner Distribution

Summary

UCC-

90

Seneca001332 February 22, 2016

email from Tom

Summers re "Wires

for Today" to Jason


-13-

McCoy

UCC-

91

Seneca003248 December 4, 2016

email from Tom

Summers re "Owner

Distribution

Summary" to Bill

Campbell

UCC-

92

Seneca003249 November 28, 2016

Owner Distribution

Summary

UCC-

93


Management Fee

Summary

UCC-

94

Seneca004445 March 21, 2017

Member Interest

Purchase Agreement

UCC-

95


email from Mike

Zervos re "Sale of

Seminole Member

Interest by Blue

Ridge" to Ken

McCoy and Jason

McCoy

UCC-

96

Seneca005040 Sale of Seminole

Member Interest by

Blue Ridge

UCC-

97

Seneca007685 February 2016

Ownership

Distributions

Summary

UCC-

98

Seneca010273 October 12, 2016

email from Charles

Ebetino re "Wire

Transfer Report" to

Bill Campbell

UCC-

99


email from Bill

Campbell re

"Projects 3/17/2016"

to Tom Clarke, Jason

McCoy, Ken

McCoy, David

Fornter, and Charles

Ebetino


-14-

UCC-

100

Seneca023371 October 3, 2016

Loan Reinstatement

and Extension of

Agreement and

Second Amendemtn

to Promissory Note

in favor of Bay Point

Capital Partners

UCC-

101

Seneca025389 Overriding Royalty

Payment Agreement

between Oak Grove

Resources, LLC and

Bay Point Capital

Partners

UCC-

102

Seneca030385 September 13, 2016

email from Tom

Summers re

"Transfer" to David

Turner and Bill

Campbell

UCC-

103

Seneca030423 Septmeber 23, 2016

email from Tom

Summers re

"Transfer" to David

Turner and Bill

Campbell

UCC-

104


email from Jason

McCoy re "Wire

Needed" to Tom

Summers and Bill

Campbell

UCC-

105


email from Jason

McCoy re "Vendors"

to Ken McCoy and

Tom Clarke

UCC-

106

Seneca055639 July 8, 2016 email

from David Turner

re "Transfer" to Tom

Summers

UCC-

107

Seneca067513 November 21, 2016

letter from Mintz

Levin on behalf of

Bay Point Capital

Parnters re "Demand


-15-

for Payment

Pursuant to Guarant"

UCC-

108

Seneca076337 June 14, 2016 email

from Bill Campbell

re "in the loop" to

Bill Campbell

UCC-

109

Seneca117056 Overriding Royalty

Payment Agreement

UCC-

110

Seneca117074 Secured Loan

Agreement Dated

April 11, 2017 by

Seminole and Seneca

and Mission Coal

Funding, LLC

UCC-

111


Promissory Note to

Blue Ridge Natural

Resources

UCC-

112


Employment offer

letter to Alan Jones

UCC-

113


Limited Guaranty

Agreement in favor

of Mission Coal

Funding, LLC

UCC-

114

ECF Filing No 1 Minutes of the Board

of Managers Meeting

(Petition)

UCC-

115

ECF Filing No 14 Mission Coal

Funding Proof of

Claim

UCC-

116

ECF Filing No 21 Kevin Nystrom

Declaration

UCC-

117

ECF Filing No 22 Cliffs Complaint

UCC-

118

ECF Filing No 290 Mission Coal

Schedules A-J

UCC-

119

ECF Filing No 300 Final Dip Order

UCC-

120

ECF Filing No 393 Debtors Sale Motion

UCC-

121

ECF Filing No 686 Anthony Horton

Declaration


-16-

UCC-

122

ECF Filing No 732 First Amended Plan

UCC-

123

ECF Filing No 780 Order Approving

Stipulation and

Agreed Order

Among the Official

Committee of

Unsecured Creditors

and the DIP Lenders

UCC-

124

ECF Filing No 799 Omnibus Objection

to the Motion of Bay

Point Capital

Partners and Coking

Coal Leasing

UCC-

125

ECF Filing No 916 Notice of Filing of

Plan Supplement

UCC-

126

ECF Filing No 934 Objection of Bay

Point Capital

Partners to the

Debtors' Request to

Sell All or

Substantially All of

Their Assets

UCC-

127

ECF Filing No 964 Motion of the

Official Committee

of Unsecured

Creditors Seeking

the Entry of an Order

Granting it Standing

and Authorizing it to

Prosecute and Settle

Certain Claims and

Causes of Action on

Behalf of the

Debtors' Estates

UCC-

128

ECF Filing No 992 Objection of Bay

Point Capital

Partners to the First

Amended Joint

Chapter 11 Plan

UCC-

129

ECF Filing No 1121 Debtors’ Proposed

Independent

Investigation

Settlement and

Amended Plan

Summary


-17-

UCC-

130

Houlihan Draft

Financial & Tax Due

Diligence Report

UCC-

131

Tom Clarke

Intercompany

Balances Chart (No

Bates Stamp)

UCC-

132

MCF Transaction

Spreadsheet (2-27-

18)

UCC-

133

Committee’s Letter

to Debtors re

Proposed Complaint

and Standing Motion

dated March 4, 2019

Any exhibit

designated by

another party

Any future

amendments,

modifications,

revisions or

supplements to the

Joint Chapter 11

Plan of

Reorganization

Any documents

necessary for rebuttal

RESERVATION OF RIGHTS

The Committee reserves the right to introduce one or more, or none, of the exhibits listed

above and further reserve the right to modify or supplement this list prior to the Hearing. In

addition, the Committee reserves the right to use documents not set forth on this list as a result of

unanticipated cross examination or with any rebuttal witnesses.

[Remainder of Page Left Blank]


-18-

Dated: April 2, 2019 BAKER DONELSON BEARMAN CALDWELL

& BERKOWITZ, P.C.

/s/ Rita L. Hullett

Rita L. Hullett, Esq.

1400 Wells Fargo Tower

420 20th Street N

Birmingham, AL 35203

Telephone: (205) 276-9807

Email: [email protected]

LOWENSTEIN SANDLER LLP Jeffrey Cohen, Esq. (admitted Pro Hac Vice)

Jennifer Kimble, Esq. (ASB-9593-E62K)

1251 Avenue of the Americas

New York, New York

Telephone: (212) 262-6700

Facsimile: (212) 262-7402

E-mail: [email protected]

[email protected]

– and –

Michael Kaplan (admitted Pro Hac Vice)

Nicole Fulfree, Esq. (admitted Pro Hac Vice)

One Lowenstein Drive

Roseland, New Jersey 07068

(973) 597-2500 (Telephone)

(973) 597-2400 (Facsimile)

E-mail:

[email protected]

[email protected]

Counsel for the Official Committee of

Unsecured Creditors


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