IN THE UNITED STATES BANKRUPTCY ... - GCG Legacy Case...

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IN THE UNITED STATES BANKRUPTCY COURTFOR THE SOUTHERN DISTRICT OF TEXAS

VICTORIA DIVISION

IN RE:

HII TECHNOLOGIES, INC., et al.,

Debtors.1

§§§§§§§§

Chapter 11

Case No. 15-60070

Jointly Administered

OBJECTION TO THE EXPEDITED MOTION TO APPOINT OFFICIALCREDITORS’ COMMITTEE FOR DEBTOR APACHE ENERGY SERVICES

[Relates to Dkt. No. 287]

The Official Committee of Unsecured Creditors of HII Technologies, Inc., et al. (the

“Committee”) files this Objection (the “Objection”) to the Expedited Motion to Appoint Official

Creditors’ Committee for Debtor Apache Energy Services (the “Motion”) [Dkt. No. 287] filed by

the “Ad Hoc Committee of Creditors of debtor Apache Energy Services, Inc.”2 (the “Ad Hoc

Group” or “Movant”) and respectfully represents as follows:

FACTUAL BACKGROUND

1. On September 18, 2015 (the “Petition Date”), the Debtors each filed voluntary

petitions for relief under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy

Code”), thereby commencing the above-styled cases (the “Bankruptcy Cases”). Pursuant to

Bankruptcy Code §§ 1107(a) and 1108, the Debtors continue to operate their businesses and

manage their properties as debtors and debtors-in-possession. No trustee or examiner has been

appointed in these Bankruptcy Cases.

1 The Debtors in these Chapter 11 cases, along with the last four digits of each Debtor’s tax identification number, are:(i) Apache Energy Services, LLC (4404), (ii) Aqua Handling of Texas, LLC (4480), (iii) HII Technologies, Inc.(3686), (iv) Sage Power Solutions, Inc. (1210) f/k/a KMHVC, Inc. and (v) Hamilton Investment Group, Inc. (0150)2 This is the name the Ad Hoc Group has given itself in the Motion. The group is comprised of Brent Mulliniks,Billy Cox, One Flow Energy Services LLC, Black Gold Energy LLC, and Fields Water Services LLC. TheCommittee takes no position on the authenticity or authority of this “ad hoc” group.

Case 15-60070 Document 316 Filed in TXSB on 01/04/16 of 19

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2. On September 29, 2015, the Office of the United States Trustee appointed the

Committee in accordance with its authority under Bankruptcy Code § 1102 [Dkt. No. 69]. The

Committee was reconstituted on October 7, 2015 [Dkt. No. 115].

3. On December 14, 2015, the Movant filed the Motion seeking to appoint a separate

official creditors committee for Apache Energy Services, LLC (“AES”). The Committee now files

this Objection to the Motion.

OBJECTION AND AUTHORITIES IN SUPPORT

4. The appointment of a separate official committee in addition to the Committee is

“extraordinary” and should be “the rare exception.” In re Spansion, Inc., 421 B.R. 151, 156

(Bankr. D. Del. 2009) (citing In re Dana Corp., 344 B.R. 35, 38 (Bankr. S.D.N.Y. 2006)); In re

Winn-Dixie Stores, Inc., 326 B.R. 853, 857 (Bankr. M.D. Fla. 2005) (citing In re Enron Corp.,

279 B.R. 671, 685 (Bankr. S.D.N.Y. 2002), aff’d sub nom. Mirant Americas Energy Mktg. L.P.

v. Official Comm. of Unsecured Creditors of Enron Corp., No. 02 Civ. 6274, 2003 WL

22327118, at *7 (S.D.N.Y. Oct. 10, 2013)); In re Sharon Steel Corp., 100 B.R. 767, 778 (Bankr.

W.D. Pa. 1989). The Movant has not satisfied this high burden, and accordingly the Motion

should be denied. Enron, 279 B.R. at 685 (stating that the burden is on the moving party); see

also In re Residential Capital, LLC, 480 B.R. 550, 558 (Bankr. S.D.N.Y. 2012) (referring to a

movant’s burden in requesting an additional committee as a “high standard”).

5. Bankruptcy Code section 1102 provides the legal basis for the appointment of a

separate creditors’ committee. It states that such an additional committee may be appointed “if

necessary to assure adequate representation of creditors….” 11 U.S.C. § 1102(a)(2). Because

the Bankruptcy Code does not define the term “adequate representation” in this context,

bankruptcy courts have considered various factors when making this determination. 9


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AM.JUR.2D Bankruptcy § 661 (2015) (listing some factors). For example, the court in In re

Enron Corp. identifies many of these considerations and sets forth a useful two-part test that

guides its overarching analysis:

First, the court must determine whether the appointment of anadditional committee is necessary to assure the movants areadequately represented. Second, if the answer to the first questionis yes, then the court must decide whether it should exercise itsdiscretion and order the appointment.

Enron, 279 B.R. at 685 (citing In re Dow Corning Corp., 194 B.R. 121, 141 (Bankr. E.D. Mich.

1996); In re Wang Labs, Inc., 149 B.R. 1, 2 (Bankr. D. Mass. 1992)). The factors relevant to

determining the adequacy of representation (i.e., the first part of the test) are as follows: (1) the

ability of the committee to function, (2) the nature of the case, and (3) the standing and desires of

the various constituencies in the case. Enron, 279 B.R. at 685. If, after evaluating these factors,

the bankruptcy court decides that representation is inadequate, the following considerations can

help the court determine whether to exercise its discretion and actually appoint a separate

committee: (1) the cost associated with the appointment, (2) the time of the application, (3) the

potential for added complexity, and (4) the presence of other avenues for creditor participation.

Enron, 279 B.R. at 685; see also Ad Hoc Bondholders Group v. Interco Inc. (In re Interco Inc.),

141 B.R. 422, 424-25 (Bankr. E.D. Mo. 1992) (declining to appoint a separate committee

because of, among other things, the disruption it would cause for the reorganization process).

A. Movant’s chosen Enron factors do not support its position.

6. Although the Motion cites to Enron, it only mentions those three factors that bear

on the adequacy of representation—specifically (1) the ability of the committee to function, (2)

the nature of the case, and (3) the standing and desires of the various constituencies. (Motion,

Dkt. No. 287, ¶¶ 38-39, pp. 13-14); see also Enron, 279 B.R. at 685. The Movant ignores the

other factors pertinent to the second part of the Enron analysis. Yet, even if the Court were to


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decline to follow Enron’s two-part approach and consider only the three adequate-representation

factors cited in the Motion, these three considerations still would not support appointing a

separate creditors’ committee for AES.

a. The Committee is able to function.

7. First, where an official committee is “hopelessly divided, unable to take a position

on important matters and ineffective,” grounds may exist for the appointment of an additional

committee. Enron, 279 B.R. at 686 (citing In re Hills Stores, 137 B.R. 4, 6 (Bankr. S.D.N.Y.

1992)). Even so, internal conflict within a committee is insufficient to establish that committee’s

inability to function. Dana Corp., 344 B.R. at 38-39 (“While the interests of the Official

Committee members may not always be aligned, the presence of potential conflict does not

always require separate committees for representation to be adequate. Creditor committees often

contain creditors having a variety of viewpoints (heterogeneous); however, these differing views

do not require a separate homogenous committee unless they impair the ability to reach a

consensus.”) (citations omitted); see also Hills Stores, 137 B.R. at 6 (“Indeed, creditors’

committees often contain creditors having a variety of viewpoints.”).

8. The Movant does not attempt to show that the Committee has been internally

conflicted, much less “hopelessly divided.” Instead, Movant offers the following quotation from

Enron:

Nevertheless, while the composition of the Creditors’ Committeeis an important factor, the analysis does not end here. “Theproblem is that a committee may function just fine, reachingconsensus on all issues, and still not adequately represent aparticular group of creditors. This can occur, for instance, if thecommittee is so dominated by one group of creditors that aseparate group has virtually no say in the decision-making process.Consequently, courts look to see whether conflicts of interest onthe committee effectively disenfranchise particular groups ofcreditors.”


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Enron, 279 B.R. at 686 (citing Dow Corning, 194 B.R. at 142 (citing Sharon Steel, 100 B.R. at

779)); see also Motion, Dkt. No.. 287, ¶ 38, p. 13-14. However, the very next sentence in the

Enron decision (which the Movant does not cite) undermines the relevance of the Movant’s

quote to the facts in these cases:

However, there has been no cry from anyone on the Creditors’Committee that the Creditors’ Committee is conflicted or has notpermitted everyone’s voice to be heard. In addition to theirparticipation on the Creditors’ Committee, the voice of the energytraders and the ENA creditors has been heard on every major issuebefore this Court.

Enron, 279 B.R. at 686. As in the Enron cases, the Movant here has failed to show that the

Committee is dominated by a group of creditors to such an extent that AES’s creditors have

virtually no say in the decision-making process. Although the Motion makes the unsupported

claim that “[t]he creditors of debtor AES are not being represented,” see Motion, Dkt. No. 287,

at ¶ 39, p. 14, this statement is incorrect. The Committee is composed of three members: Power

Reserve Corporation (“Power Reserve”), Bold Production Services, LLC (“Bold”), and

Worldwide Power Products, LLC (“Worldwide”). Power Reserve is listed on AES’s Amended

Schedule F as having an undisputed, non-contingent, and liquidated claim against AES in the

amount of $230,000.00. Amended Schedule F [Case No. 15-60069, Dkt. No. 32]. Similarly, Bold

is listed on AES’s Amended Schedule F as having an undisputed, non-contingent, and liquidated

claim against AES in the amount of $253,939.39. Id. Thus, two-thirds of the Committee’s

membership are creditors of AES, having an aggregate unsecured claim against AES exceeding

$480,000.00. The Committee literally cannot take a stance on an issue without the support of at

least one AES creditor.

9. By the same token, just as in Enron, no Committee member has complained of

disenfranchisement. Only the Movant (whose members are not members of the Committee) have


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complained. And, in any case, the Movant has actively participated in these Bankruptcy Cases,

and this Court has considered its views whenever they were raised. For these reasons, just as the

Enron court found that the committee in those cases could function effectively, this Court should

also find that the Committee can function in these Bankruptcy Cases and represent the interests

of all the Debtors’ creditors—including the creditors of AES.

b. The nature of these Bankruptcy Cases does not lend itself towards theappointment of an additional committee.

10. Second, although Enron does not delve deeply into the “nature of the case” factor,

it and various other cases have “recognized that certain complex, multi-debtor, multi-business

cases lend support for the appointment of additional committees.” Enron, 279 B.R. at 689; see

also Dana Corp., 344 B.R. at 39 (“[T]he large size of a bankruptcy case is not determinative of

whether an additional committee should be appointed.”); Winn-Dixie Stores, Inc., 326 B.R. at

857 (concluding that, although the “cases are large and complex,” appointment of an additional

committee “would not facilitate a more harmonious resolution of the cases but would instead

engender discord, litigation and delay”). In other words, courts are perhaps more inclined to

appoint additional committees in large and complex bankruptcy cases, but even then will only do

so in certain, discrete circumstances. For instance, although few bankruptcy cases are larger or

more complex than the Enron bankruptcy cases were, that court still declined to appoint an

additional committee. Enron, 279 B.R. at 694-95.

11. The Movant does not argue that these Bankruptcy Cases are so large and complex

that an additional committee is required. Indeed, these cases are neither large nor especially

complex. The issues here are relatively common to most bankruptcy proceedings, and the

Debtors’ assets and liabilities are relatively modest. Thus, the second Enron factor cuts against

the relief the Movant seeks.


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c. The Movant’s desire to have an additional committee is questionable.

12. The Committee does not dispute that the Movant has standing to request the

appointment of an additional committee. However, the Movant’s desires and reasons for seeking

the appointment of a separate committee weigh against granting its request. For instance, Enron

found that the appointment of a separate committee for the creditors of one of the debtors “would

be both counter-productive and costly” because doing so would constrain the court “to appoint a

separate committee for each debtor in a jointly administered case.” Enron, 279 B.R. at 692. The

same analysis applies here. If the appointment of a committee solely for the creditors of AES is

always necessary to protect the separate interests of such creditors, then, logically, the Court

should have to appoint separate committees for each of the five Debtors. This is not the law.

13. Many courts have also denied requests for an additional official committee when

those requests were merely veiled efforts to obtain official sanction for the requester’s personal

agenda and to bill the debtors’ estates for such efforts. See, e.g., Sharon Steel, 100 B.R. at 780;

Hills Stores, 137 B.R. at 7 (“This motion confuses adequate representation on a Committee with

the right to charge a debtor’s estate for separate professionals.”). The Motion is no different. The

Movant has stated, on numerous occasions, that it intends to reinstall AES’s former managers

(and, not coincidentally, members of the Ad Hoc Group) Billy Cox and Brent Mulliniks as

AES’s officers. Notice of Filing of Proffer of Brent Mullinks [sic], at § G [Dkt. No. 202]

(“Mulliniks Proffer”). Creating an additional official committee just to allow the Movant to

accomplish this personal goal is improper. See In re Garden Ridge Corp., No. 04-10324, 2005

WL 523129, at *4 (Bankr. D. Del. March 2, 2005) (“The Official Committee is simply not

intended to represent individual creditor interests.”); Residential Capital, 480 B.R. at 558-59.


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14. Furthermore, to the extent that the Movant believes that counsel to the Committee

is somehow conflicted or unable to investigate any potential causes of action that the Debtors

may have, the Committee disagrees. Counsel to the Committee, who have extensive education

and experience in bankruptcy law, including analysis and prosecution of fraudulent transfer

claims, have analyzed the alleged claims against the DIP Lenders asserted by the Movant and

concluded that they are not viable. In addition, the Committee (including the two members who

are AES creditors) believes that the Movant’s continued insistence upon a separate plan for AES

is unnecessary and misguided. Thus, the Movant’s stated motivations for seeking the

appointment of a separate committee appear unfounded, and the Committee concludes that the

Movant really seeks the appointment of an official AES committee in order to more easily

achieve its members’ personal goals. This does not represent an appropriate basis upon which to

appoint a separate official committee for AES.

B. The Movant fails to discuss the other factors considered in Enron and other cases.

15. The three Enron factors cited by the Movant do not paint a complete picture of

that court’s decision. As mentioned above, the Enron court utilized a well-established analytical

test that divides the consideration of this issue into two questions. “First, the court must

determine whether the appointment of an additional committee is necessary to assure the

movants are adequately represented. Second, if the answer to the first question is yes, then the

court must decide whether it should exercise its discretion and order the appointment.” Enron,

279 B.R. at 685. Other courts have adopted this analytical approach. See, e.g., In re New

Century TRS Hldgs., Inc., No. 07-10416, 2013 WL 5377962, at *3 (Bankr. D. Del. Sep. 26,

2013); Residential Capital, 480 B.R. at 558. Thus, even if this Court had determined that AES’s

creditors were not adequately represented, then it still could decide in its discretion not to appoint

an additional committee. As mentioned above, the Movant ignores the following factors that


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courts typically consider when deciding whether to exercise their discretion not to appoint a

committee: (i) the cost associated with the appointment, (ii) the time of the application, (iii) the

potential for added complexity, (iv) the presence of other avenues for creditor participation. E.g.,

Enron, 279 B.R. at 685 (citing Dow Corning Corp., 194 B.R. 142-43); Hills Stores, 137 B.R. at

5-8; Interco, 141 B.R. at 424; see also Winn-Dixie Stores, 326 B.R. at 857 (stating that Enron

enumerates seven factors).

a. The cost of appointing an additional committee outweighs any utility of suchappointment.

16. One of the most important considerations when deciding whether or not to

appoint an additional committee is the expense of such an appointment. Enron, 279 B.R. at 692;

Interco, 141 B.R. at 424; In re Orfa Corp., 121 B.R. 294, 299 (Bankr. E.D. Pa. 1990). Because

“the appointment of additional committees is ‘closely followed by applications to retain

attorneys and accountants,’” which will be levied as administrative expenses against the estate,

this factor cuts against the appointment of an additional committee in most circumstances. In re

Beker Indus. Corp., 55 B.R. 945, 949 (Bankr. S.D.N.Y. 1985) (citing In re Saxon Indus., Inc., 39

B.R. 945, 947 (Bankr. S.D.N.Y. 1984)). Here, an additional committee for AES would represent

a wholly unnecessary expense—especially given that, among other reasons, two-thirds of the

current Committee’s membership are already creditors of AES.

b. The Movant’s delay in bringing the Motion weighs against an additionalcommittee.

17. Some courts have found that if a movant waits too long to request the

appointment of an additional committee, then that request should be denied. In re Drexel

Burnham Lambert Grp., Inc., 118 B.R. 209, 211 (Bankr. S.D.N.Y. 1990) (“A motion under

section 1102 should be made promptly.”); In re Public Svc. Co., 89 B.R. 1014, 1018 (Bankr.


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D.N.H. 1988) (“[T]he delay in submission of the request for a separate committee following the

original filing of these proceedings [is] itself a factor to be considered in any decision.”). Here,

the Movant challenges certain positions held by the Committee and asserts that a separate AES

committee should be appointed for this reason. (Motion, Dkt. No. 287, ¶¶ 41-43, pp. 14-15).

However, the Movant has known the Committee’s positions for some time, but nevertheless still

waited until December 14, 2015 to file the Motion. See, e.g., Interco, 141 B.R. at 424-25

(finding that a delay of approximately one month from the movant’s knowledge of a

disagreement weighed against granting of an additional committee). This consideration also

disfavors granting the Movant’s request.

c. Appointment of an additional committee would result in unnecessary complexityand conflict.

18. Courts also hesitate to add additional committees where doing so “would likely

intensify conflict and lead to further complication.” Enron, 279 B.R. at 688. Accordingly, the

Enron court was “disinclined to add committees to satisfy one group of creditors, a group that

already has representation on the Creditors’ Committee, only to create further discord, litigation

and delay.” Id., see also Mirant Americas, 2003 WL 22327118, at *8 (“[B]ecause creditors

would be balkanized into several independent committees, each furthering the interests of only

certain groups, the consultation and balancing of interests necessary for a successful negotiation

of a reorganization plan would be severely hampered, leading to increased costs and delays.”)

(internal citations omitted).

19. Appointing an additional committee would not lessen the disagreements between

the Movant and the Committee and would not vindicate the Movant’s various untenable

positions. It would only foment more conflict. Just as the Enron court chose not to appoint an

additional committee to satisfy a group that was already sufficiently represented on the existing


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official creditor’s committee, this Court should also decline to grant the relief requested by the

Movant given that AES’s creditors are already well-represented on the Committee and that

appointing a separate AES committee would only confound the conflicts in these cases.

d. The Movant does not need to be an official committee in order to participate.

20. Finally, as evidenced the by Movant’s continued involvement in these Bankruptcy

Cases, the members of the Ad Hoc Group do not need recognition as an official committee in

order to participate in these Bankruptcy Cases either individually or collectively as an ad hoc

group. See, e.g., Spansion, 421 B.R. at 163 (“[T]he Ad Hoc Equity Committee is well organized,

well represented by counsel, and adequate to the task of representing its interests without

‘official’ status.”); In re Eastman Kodak Co., No. 12-10202, 2012 WL 2501071, at *3 (Bankr.

S.D.N.Y. June 28, 2012) (“[G]iven the quality of the legal talent hired by the Shareholders, there

is no reason to conclude that the Shareholders cannot be represented ably through an unofficial,

or ad hoc, committee.”). The Movant already has counsel and is participating in these

Bankruptcy Cases. This Court does not need to appoint a separate official committee to represent

it or the interests of its various members.

CONCLUSION

21. In conclusion, this Court should decline to appoint an additional official

committee for AES. The Committee adequately represents AES’s creditors already, and the

Movant has not satisfied its high burden to demonstrate otherwise. Furthermore, even if AES’s

creditors were not adequately represented, this Court should still exercise its discretion not to

appoint an official AES committee because of, among other things, the additional expense and

further conflict that such an appointment would surely impose. For this reason, the Committee


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requests that the Court decline to appoint an additional official committee for AES and deny the

Motion.

FORMAL RESPONSE

22. Paragraph 1 of the Motion requests relief from the Court and does not require a

response. For avoidance of doubt, the Committee denies that the relief requested therein should

be granted.

23. The Committee lacks sufficient information to admit or deny the allegations made

in Paragraph 2 of the Motion. To the extent a further response is necessary, the Committee

denies the allegations Paragraph 2 of the Motion.

24. The allegations in Paragraph 3 of the Motion are admitted.

25. With respect to the allegations in Paragraph 4 of the Motion, the Committee

admits solely that it met with counsel for the Movant. The Committee denies the remainder of

the allegations made in Paragraph 4, and specifically denies that counsel for the Committee

refused to speak with counsel for the Movant.


admits solely that the letters attached as Exhibit “1” and Exhibit “2” to the Motion are authentic

copies of letters sent by counsel to the Movant and further states that such letters speak for

themselves. All other allegations in Paragraph 5 of the Motion are denied.

27. With respect to the allegations made in Paragraph 6 of the Motion, the Committee

solely admits the authenticity of the letter. With respect to the remaining allegations in Paragraph

6 of the Motion, the Committee states that the allegations are too vague and ambiguous to permit

it to frame a response, and the Committee therefore denies the allegations.


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28. The Committee lacks sufficient information to admit or deny the allegations in

Paragraph 7 of the Motion. The Committee further separately denies that it has not

communicated with the Movant about the Movant’s belief that there are viable claims against

Heartland. To the extent a further response is necessary, the Committee denies the allegations

made in Paragraph 7 of the Motion.

29. With regard to the allegations made in Paragraph 8 of the Motion, the Committee

admits solely that the Movant has stated its belief that Brent Mulliniks and Billy Cox could

resurrect AES. The remainder of Paragraph 8 of the Motion is too vague and ambiguous to

permit the Committee to frame a response. To the extent a further response is necessary, the

Committee denies the allegations made in Paragraph 8 of the Motion.


admits solely that the Debtors filed the Motion to 1) Sell Certain Assets Under 11 U.S.C. § 363

Free of Liens, Claims and Encumbrances; 2) Approve Lease of Hydroflow Units to Purchaser;

3) Assign the Hydroflow Distribution Agreement; and 4) Approve Breakup Fee and Bidding

Procedure [Dkt. No. 242] (the “Sale Motion”) on November 20, 2015 and that the Movant filed

its Response to Debtors’ Motion to Sell Certain Assets Under Section 363 of the Bankruptcy

Code, Approval of Bidding Procedures, and For Related Relief [Dkt. No. 278] (“Response to

Sale Motion”) on December 10, 2015 and that the Sale Motion and the Response to Sale Motion

speak for themselves. To the extent a further response is necessary, the Committee denies the

allegations made in Paragraph 9 of the Motion.


states that the Final Order Approving the Debtors’ Emergency Motion For Entry of Interim and

Final Orders (A) Authorizing Postpetition Financing; (B) Authorizing Use of Cash Collateral;


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and (C) Granting Adequate Protection to the Dip Lenders [Dkt. No. 149] (“DIP Order”) speaks

for itself and that all further allegations in Paragraph 10 of the Motion are too vague and

ambiguous to permit the Committee to frame a response, and the Committee therefore denies the

allegations.


expressly denies that it is not interested in protecting the interests of AES’s creditors. The

remaining allegations in Paragraph 11 of the Motion are too vague and ambiguous to permit the

Committee to frame a response, and the Committee therefore denies the allegations.

33. The Committee admits the allegations made in Paragraph 12 of the Motion.

34. There is no text in Paragraph 13 in the Motion, and accordingly the Committee

can neither admit nor deny the lack of allegations made in Paragraph 13 of the Motion.




38. The Committee admits the first three sentences of Paragraph 17 of the Motion

only. The Committee denies the remaining allegations in Paragraph 17 of the Motion.


admits solely that it received a letter from the Movant, as is stated in the final sentence of

Paragraph 18 of the Motion. The remainder of Paragraph 18 states conclusions of law and does

not require a response.


41. With regard to Paragraph 20 of the Motion, the Committee states that the DIP

Order speaks for itself.


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Paragraph 24 of the Motion. To the extent a response is required, the Committee denies the



states that the allegations are too vague and ambiguous to permit the Committee to frame a

response, and the Committee therefore denies the allegations.




admits solely that it met with counsel for the Movant. The Committee denies the remainder of

the allegations made in Paragraph 28, and specifically denies that counsel for the Committee

refused to speak with counsel for the Movant.


admits solely that the letters attached as Exhibit “1” and Exhibit “2” to the Motion are authentic

copies of letters sent by counsel to the Movant and further states that such letters speak for

themselves. All other allegations in Paragraph 29 of the Motion are denied.



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53. With respect to the allegations made in Paragraph 32 of the Motion, the

Committee states that the DIP Order speaks for itself and further denies that the Committee is

unlikely or unable to pursue claims against Heartland, as is alleged in Paragraph 32 of the

Motion.


admits solely that the Movant has sought to terminate the Debtors’ exclusive period to file a

Chapter 11 plan and that the Committee has opposed this effort. To the extent a further response

is required, the Committee denies the allegations made in Paragraph 33 of the Motion.



Paragraph 35 of the Motion. To the extent a further response is required, the Committee denies

the allegations made in Paragraph 35 of the Motion.


admits solely that the Movant filed the Mulliniks Proffer. The remainder of Paragraph 36 of the

Motion does not require a response.

58. Paragraph 37 of the Motion states conclusions of law and does not require a

response.

59. Paragraph 38 of the Motion states conclusions of law and does not require a

response.





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Paragraph 40 of the Motion. To the extent a specific response is necessary, the Committee

denies the allegations contained in Paragraph 40.






response, and the Committee therefore denies the allegations. Furthermore, insofar as Paragraph

42 of the Motion alleges that competent counsel has not analyzed potential claims that could be

made against the DIP Lenders, Paragraph 42 of the Motion is denied. To the extent a further

response is required, the Committee denies the allegations made in Paragraph 42 of the Motion.

64. The Committee denies the allegations in Paragraph 43 of the Motion.

65. Paragraph 44 of the Motion is too vague and ambiguous for the Committee to

frame a response. To the extent a further response is required, the Committee denies the


66. All other allegations not specifically admitted herein are denied.


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WHEREFORE the Official Committee of Unsecured Creditors of HII Technologies, Inc.,

et al. respectfully requests that the Court deny the Motion and grant such other and further relief

to which the Committee may be entitled.

Date: January 4, 2016 Respectfully submitted,

LOCKE LORD LLP

By: /s/ W. Steven BryantW. Steven BryantState Bar No. 24027413Federal I.D. No. 32913Elizabeth M. GuffyState Bar No. 08592525Steven W. GoldenFederal Bar No. 2650080600 Travis Street, Suite 2800Houston, Texas 77002Phone: (713) 226-1489Fax: (713) [email protected]@[email protected]

ATTORNEYS FOR THE OFFICIALCOMMITTEE OF UNSECUREDCREDITORS OF HII TECHNOLOGIES,INC., ET AL.


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CERTIFICATE OF SERVICE

I certify that, on January 4, 2016, a true and correct copy of the foregoing pleading wasserved via ECF on all parties who receive service in these Bankruptcy Cases via electronic casefiling and/or by United States regular mail on the attached Master Service List.

/s/ Steven W. GoldenSteven W. Golden

CERTIFICATE OF CONFERENCE

I certify that, on January 4, 2016, I left a voice message for Leonard Simon, counsel tothe Movant, informing him that the Committee intended to oppose the Motion. As of the filingof this Response, I had not received a return call from Mr. Simon. The Motion should thereforebe deemed opposed.

/s/ W. Steven BryantW. Steven Bryant


1 McKool 1138517v1

IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS

VICTORIA DIVISION In re: § Chapter 11 § HII TECHNOLOGIES, INC., et al. § 15-60070 (DRJ) Debtors § (Jointly Administered)

MASTER SERVICE LIST – December 16, 2015 DEBTORS: HII Technologies, Inc., et al. Attn: Loretta Cross, CRO 8588 Katy Freeway Ste 430 Houston, TX 77024 DEBTORS’ MANAGEMENT: Stout, Risius, Ross Attn: Loretta Cross 815 Walker Ste 1140 Houston, TX 77002 DEBTORS’ COUNSEL: McKool Smith PC Attn: Hugh M. Ray, III 600 Travis Ste 7000 Houston, TX 77002 CREDITORS COMMITTEE: Power Reserve Corp. 13310 Hempstead Hwy Houston, TX 77040 Attn: Keith Paul [email protected] Bold Production Services, LLC 10880 Alcott Drive Houston, TX 77043 Attn: Austin Traweek [email protected]

Worldwide Power Products, LLC 5711 Brittmoore Road Houston, TX 77041 Attn: Chuck Matthews [email protected] CREDITORS COMMITTEE COUNSEL: Locke Lord LLP 600 Travis Suite 2800 Houston, TX 77002 Attn: W. Steven Bryant [email protected] Attn: Elizabeth M. Guffy [email protected] U.S. TRUSTEE: Office of the US Trustee 515 Rusk Ave Ste 3516 Houston, TX 77002 Attn: Hector Duran [email protected] GOVERNMENTAL ENTITIES: Securities and Exchange Commission Fort Worth Regional Office 801 Cherry Street Ste 1900, Unit 18 Fort Worth, TX 76102 Internal Revenue Service Centralized Insolvency Operation PO Box 7346 Philadelphia, PA 19101-7346

Case 15-60070 Document 316-1 Filed in TXSB on 01/04/16 Page 1 of 6

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Office of the Attorney General Main Justice Bldg Rm 5111 10th & Constitution Ave NW Washington, DC 20530 Courtney J. Hull Assistant Attorney General Rachel R. Obaldo Assistant Attorney General Bankruptcy & Collections Division MC 008 P O Box 12548 Austin, TX 78711-2548 [email protected] Texas Workforce Commission Bankruptcy Section P O Box 149080 Austin, TX 78714-9080 Texas Comptroller of Public Accounts Revenue Accounting Division Bankruptcy Section P O Box 13528 Austin, TX 78711-3528 Oklahoma Attorney General’s Office 313 NE 21st Street Oklahoma City, OK 73105 Oklahoma Tax Commission 2501 North Lincoln Boulevard Oklahoma City, OK 73194 SECURED CREDITORS: BCL-Equipment Leasing, LLC 450 Skokie Blvd Bldg 600 Northbrook, IL 60062 Heartland Bank as Administrating Agent for Bank Group 1 Information Way Ste 300 Little Rock AR 72202 Nations Fund I, LLC 101 Merritt Seven 5th Floor Norwalk, CT 06851

20 LARGEST CONSOLIDATED: Bold Production Services 10880 Alcott Drive Houston, TX 77040 Enterprise FM Trust Enterprise Fleet Management P O Box 800089 Kansas City, MO 64180 Hertz Equipment Rental Service Pump & Compressor Division P O Box 650280 Dallas, TX 75265-0280 Holt CAT Power Systems P O Box 911975 Dallas, TX 75391-1975 Nitro-Lift Technologies, LLC P O Box 678456 Dallas, TX 75267-8456 Odessa Pump & Equipment P O Box 60429 Midland, TX 79711-0429 Paychex 8605 Freeport Pkwy Irving, TX 75063 Power Reserve Corp 13310 Hempstead Hwy Houston, TX 77040 Power Solutions International 201 Mittel Drive Wood Dale, IL 60191 Precision Frac, LLC 407 Walker Midland, TX 79701


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SJ Water Solutions, LLC 813 Leach Street Kilgore, TX 75662 Southern Oilfield Services, LLC c/o Universal Funding Corp P O Box 13115 Spokane, WA 99213-3115 Sunbelt Rentals Oil & Gas Services P O Box 409211 Atlanta, GA 30384 Sunstream Services Co. P O Box 514 Grandview, TX 76050 Sutherland Asbill & Brennan LLP 1001 Fannin Street Suite 3700 Houston, TX 77002-6760 Texas State Comptroller Comptroller of Public Accounts P O Box 149359 Austin, TX 78711-4935 Timekeepers, Inc. 41109 Interstate 10 West #C Boerne, TX 78006 Titan Test Pumps P O Box 1419 El Campo, TX 77437 United Rentals Pump Solutions United Rentals (North America) Inc. P O Box 840514 Dallas, TX 75284-0514 Worldwide Power Products 5711 Brittmoore Road Houston, TX 77041

DIP LENDER: Heartland Bank as Administrating Agent for Bank Group 1 Information Way Ste 300 Little Rock AR 72202 SHAREHOLDERS OVER 5%: Mitchell Lukin 910 Louisiana Street Houston, Texas 77002 William M. Hamilton P.O. Box 1137 Guthrie, OK 73044 Sharon K. Hamilton P.O. Box 1137 Guthrie, OK 73044 Brent Mulliniks 201 River Creek Lane Aledo, TX 76008 Billy Cox 5373 FM 1726 Goliad, TX 77963 Reserve Financial Corp. 13310 Hempstead Highway Houston, Texas 77040 Kenton Chickering III 10302 Lynbrook Hollow Houston, TX 77042 OTHERS REQUESTING SERVICE: Robinson Brog Leinwand Greene Genovese & Gluck P.C. Attn: Steven B. Eichel 875 Third Avenue New York, NY 10022 Counsel for Magna Management LLC


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Kelley Drye & Warren LLP 101 Park Avenue New York, NY 10178 Attn: Michael Adelstein [email protected] Counsel for Purchasers Under Series B Purchase Agreement Arent Fox LLP 1717 K Street NW Washington, DC 20006-5344 Attn: Mark Joachim [email protected] Counsel for Heartland Bank and McLarty Capital Partners SBIC, L.P. Munsch Hardt Kopf & Harr PC 700 Milam Ste 2700 Houston, TX 77002-2806 Attn: E. Lee Morris [email protected] Local Counsel for Heartland Bank and McLarty Capital Partners SBIC, L.P. Levenfeld Pearlstein, LLC 400 Skokie Blvd Ste 700 Northbrook, IL 60062 Attn: William S. Schwartz [email protected] Counsel for BCL-Equipment Leasing, LLC Vedder Price P.C. 222 North LaSalle Street Chicago, IL 60601 Attn: Arlene Gelman [email protected] Attn: Stephanie Hor-Chen [email protected] Counsel for Axis Capital, Inc. Chaffe McCall, LLP 801 Travis Ste 1910 Houston, TX 77002 Attn: Kevin Walters [email protected] Local Counsel for Axis Capital, Inc.

Pulman, Cappuccio, Pullen, Benson & Jones 300 Burnett Street Ste 150 Fort Worth, TX 76102 Attn: Lance “Luke” Beshara [email protected] Counsel for Christopher George Conner & Winters, LLP 211 North Robinson Ste 1700 Oklahoma City, OK 73102-7101 Attn: Victor Albert [email protected] Attn: Matthew Warren [email protected] Counsel for Craig Hamilton, William Mark Hamilton, Sharon Hamilton, S&M Assets, L.L.C. and H2Services, LLC Conner & Winters, LLP 1001 McKinney Ste 550 Houston, TX 77002 Attn: Ashley Selwyn [email protected] Local Counsel for Craig Hamilton, William Mark Hamilton, Sharon Hamilton, S&M Assets, L.L.C. and H2Services, LLC The Kennedy Law Firm 4221 Avondale Ave Dallas, TX 75219 Attn: Kirk Kennedy [email protected] Counsel for Brent Mulliniks and Ad Hoc Committee of Unsecured Creditors Pendergraft & Simon 2777 Allen Parkway Ste 800 Houston, TX 77019 Attn: Leonard Simon [email protected] Counsel for Ad Hoc Committee of Creditors for Apache Energy Services, LLC


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Linebarger Goggan Blair & Sampson LLP P O Box 3064 Houston, TX 77253-3064 Attn: Tara Grundemeier [email protected] Counsel for Harris County Johnson DeLuca Kurisky & Gould PC 1221 Lamar, Suite 1000 Houston, TX 77010 Attn: George Kurisky, Jr. [email protected] Counsel for High Pressure Rental and Supply, LLC and TSI Flow Products, Inc. Mediant Communications Inc. 200 Regency Forest Drive Suite 110 Cary, NC 27518 Attn: Michael Jones II [email protected] Investor Communication Firm for COR Clearing Cole Schotz PC 301 Commerce Street Ste 1700 Fort Worth, TX 76102 Attn: Michael Warner [email protected] Attn: Kenneth Baum [email protected] Counsel for Nations Fund I, LLC Alex Newton 13707 Cricket Hollow Dr Houston, TX 77069 Paychex, Inc. 225 Kenneth Drive Ste 100 Rochester, NY 14623 Attn: Jon V. Volpe, Bankruptcy Clerk [email protected] Chapoton Sanders Scarborough LLP Two Riverway Ste 1500 Houston, TX 77056 Attn: Jeremy Sanders

[email protected] Attn: Gwyneth Campbell [email protected] Counsel for Worldwide Power Products, LLC Burleson LLP 700 Milam Ste 1100 Houston, TX 77002 Attn: Trent Rosenthal [email protected] Counsel for Occidental Permian Ltd and OXY USA WTP LP Magna Management LLC 40 Wall Street New York, NY 10005 Attn: Justin Harris [email protected] Barton, East & Caldwell, PLLC 700 North St. Mary’s Street Ste 1825 San Antonio, TX 78205 Attn: Zachary Fanucchi [email protected] G. Wade Caldwell [email protected] Counsel for Holt Texas, Ltd dba Holt Cat and dba Holt Rental Services Johnson DeLuca Kurisky & Gould PC 1221 Lamar Suite 1000 Houston, TX 77010 Attn: George Kurisky, Jr. [email protected] Counsel for Enterprise FM Trust Orlando & Orlando LLP 440 Louisiana Suite 1110 Houston, TX 77002 Attn: Monica Schulz Orlando [email protected] Counsel for Sunbelt Rentals, Inc.


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Gray Reed & McGraw, PC 1601 Elm Street Suite 4600 Dallas, TX 75201 Attn: Jason Brookner [email protected] Counsel for Enservco Corporation Markus Williams Young & Zimmerman 1700 Lincoln Street Suite 4550 Denver, CO 80203 Attn: Donald Allen [email protected] Counsel for Enservco Corporation Hoover Slovacek LLP Galleria Tower II 5051 Westheimer Ste 1200 Houston, TX 77056 Attn: Edward Rothberg [email protected] Counsel for BCL-Equipment Leasing LLC Snow Spence Green LLP 2929 Allen Parkway Ste 2800 Houston, TX 77019 Attn: Carolyn Carollo [email protected] Counsel for K&B Services of Arkansas and Branden Brewer, individually


IN THE UNITED STATES BANKRUPTCY COURTFOR THE SOUTHERN DISTRICT OF TEXAS

VICTORIA DIVISION

IN RE:

HII TECHNOLOGIES, INC., et al.,

Debtors.1

§§§§§§§§

Chapter 11

Case No. 15-60070

Jointly Administered

ORDER DENYING EXPEDITED MOTION TO APPOINT OFFICIALCREDITORS’ COMMITTEE FOR DEBTOR APACHE ENERGY SERVICES

CAME ON for consideration the Expedited Motion to Appoint Official Creditors’ Committee

for Debtor Apache Energy Services (the “Motion”) [Dkt. No. 287] filed by the Ad Hoc Committee

of Unsecured Creditors of Debtor Apache Energy Services LLC in the above-styled bankruptcy case

and the Court, having considered the Motion, the responses and objections to the Motion, and the

parties’ arguments in support of their respective positions, and after due and proper notice to all

parties in interest and a hearing, is of the opinion that the Motion should be DENIED.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT:

1. The Motion is DENIED.

SIGNED ________________, 2016.

DAVID R. JONESUNITED STATES BANKRUPTCY JUDGE

1 The Debtors and the last four digits of their respective taxpayer identification numbers are as follows: Apache EnergyServices, L.L.C. (4404), HII Technologies, Inc. (3686), Aqua Handling of Texas, L.L.C. (4480), Hamilton InvestmentGroup, Inc. (0150), and Sage Power Solutions, Inc. (1210).


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