case 18-04177-tom11 doc 609 filed 01/30/19 entered 01/30...

UNITED STATES BANKRUPTCY COURTFOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

In re:

MISSION COAL COMPANY, 11,C. ei o/.,1

Debtors.

Chapter 11Case No. 18-04177 (TOM)

(Jointly Administered)

Proposed Hearing Date: February 6, 2019 at 10:00 a.m.

(CT)

Proposed Objection Deadline: February 3, 2019 at 4:00

p.m. (CT)

THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS' MOTION FOR AN

ORDER PURSUANT TO BANKRUPTCY RULE 2004 AUTHORIZING THE

EXAMINATION AND PRODUCTION OF DOCUMENTS BYCHERRY BEKAERT LLP

The Official Committee of Unsecured Creditors (the "Committee'') of Mission Coal

Company, LLC ("Mission Coal") and certain of its affiliates, as debtors and debtors-in-

possession (collectively, the "Debtors"), by and through its undersigned counsel, hereby

respectfully moves (the -Motion"), pursuant to Bankruptcy Rule 2004 of the Federal Rules or

Bankruptcy Procedure (the "Bankruptcy Rules"), for the entry of an order, substantially in the

form attached hereto as Exhibit A (the "Proposed Order"), directing the corporate

representatives of Cherry Bekaert TIP ( "Cherry Bekaert") to produce all documents within its

custody, possession or control regarding the issues and matters designated on the attached

Exhibit B (the "Document Requests") on or before eight (8) calendar days following entry of an

order granting this Motion, and requiring the corporate representative(s) of Cherry Bekaert to

appear for examination to be held at a time and place mutually agreeable to the Committee and

The Debtors in these chapter 1 1 cases, along with the last four digits of each Debtor's federal tax identification

number, include: Mission Coal Company, LLC (8465); Beard Pinnacle, LLC (0637); Oak Grove Land Company,

LLC (6068); Oak Grove Resources, LLC (0300); Pinnacle Land Company, LLC (6070); Pinnacle Mining Company,

LLC (7780); Seminole Alabama Mining Complex, LLC (6631); Seminole Coal Resources, 1.1,C (1795); Seminole

West Virginia Mining Complex, LLC (7858); Seneca Coal Resources, I,LC (1816); and Seneca North American

Coal, LLC (5102). The location of the Debtors' service address is: 7 Sheridan Square, Suite 300, [Kingsport,

Tennessee 37660.

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Cherry .Bekaert no later than seven (7) calendar days before the Challenge Deadline (defined

below). In support of this Motion, the Committee respectfully states as follows:

PRELIMINARY STATEMENT

1. Since its retention of counsel in these Chapter 1 1 Cases (defined below), the

Committee has been diligently and vigorously investigating the Debtors' history, the

circumstances surrounding the creation of Mission Coal in January 2018, and the pre- and post-

formation transactions by and between the Debtors, their insiders and affiliates, and other related

third parties. The Committee's investigation to date has uncovered numerous transactions

involving third parties who have overlapping or common ownership with certain of the Debtors

both before and after Mission Coal's formation, including potentially fraudulent transfers and

other actions that were value-destructive to the Debtors.

2. The Committee's investigation is proceeding •at a rapid pace given the

confirmation timeline proposed by the Debtors. The Committee's deadline to initiate, or move

for standing to initiate any avoidance actions or any other claims, counterclaims, or causes of

action, objections, contests, or defenses relating to the Debtors' estates (the "Challenge

Deadline") is currently February 28, 2019 (and for one party, February 26, 2019).2 While the

Committee is working diligently to investigate the pre- and post-formation transactions of the

Debtors, the Committee's investigation remains ongoing and is not complete.

3. The Committee, as an independent party and the fiduciary charged with

representing the interest of all creditors in these Chapter 11 Cases, is well-equipped and is the

appropriate party to investigate the types of issues addressed in this Motion as part of its ongoint,,

investigation.

Simultaneously with the filing of this Motion, the Committee has tiled a Motion to Extend the Challenge Deadline

to April 5, 2019, without prejudice to the Committee's right to seek future extensions.


JURISDICTION AND VENUE

4. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and

1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). Venue is proper in this

District pursuant to 28 U.S.C. §§ 1408 and 1409.

5. The Committee consents to the entry of a final order in connection with this

Motion if it is determined that the Court, absent the consent of the parties, cannot enter final

orders or judgments consistent with Article 111 of the United States Constitution.

BACKGROUND

A. The Bankruptcy Cases

6. On October 14, 2018 (the "Petition Date"), the Debtors filed voluntary petitions

for relief under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the

Northern District of Alabama (the "Court"), commencing their chapter 11 cases (the "Chapter 11

Cases"). Pursuant to sections 1107 and 1 108 of the Bankruptcy Code, the Debtors continue to

operate their businesses and properties as debtors-in-possession. No trustee or examiner has

been appointed in these cases.

7. On October 25, 2018, the Bankruptcy Administrator for the Northern District of

Alabama appointed the nine-member Committee. [Docket No. 147]. The Committee convened

and selected counsel on October 30, 2018.

B. The Committee's Investigation

8. On November 12, 2018, the Committee sought. 2004 examinations and document

productions from the Debtors, Thomas Clarke and Ana Clarke, Charles Ebetino, Kenneth.

McCoy and Jason McCoy, and pre-petition lender Mission Coal Funding, (collectively, the

"Rule 2004 Parties"). [See Docket Nos. 244-49].


9 The Committee and the Rule 2004 Parties, plus Bay Point Advisors, LLC,

thereafter entered into agreed orders stipulating to dates and deadlines in connection with the

Debtors' independent directors' and the Committee's separate investigations (collectively, the

"November Orders"). [See Dockets Nos. 275, 306-07, 332-34.341 and 385].

10. The Rule 2004 Parties and Bay Point Advisors, LLC have produced in excess of

214,000 documents to the Committee as of January 28, 2019, and continue to produce

documents relevant to the Committee's investigation. The Committee has sent additional

document requests to certain of the Rule 2004 Parties in accordance with the November Orders.

The Committee's review and analysis of these document productions is ongoing.

1 1. The Committee's investigation to date has uncovered numerous transactions,

which occurred both before and after Mission Coal's formation on January 31, 2018, that merit

further scrutiny. These transactions include potentially fraudulent transfers and other value-

destructive behavior from which potential claims against the Debtors, their insiders, and/or other

related third parties may arise.

12. Cherry Bekaert has served as the auditor for Debtors Seneca Coal Resources,

TIC ("Seneca") and Seminole Coal Resources, LLC ("Seminole") and their subsidiaries. In

2018, Cherry Bekaert performed an audit for Seneca and Seminole and their subsidiaries for the

years ending December 31, 2016 and 2017 (the "Audit"). At the time Cherry Bekaert issued

the Audit, it also issued other reports that are highly relevant to the Committee's investigation.-

13. Many of the questionable transactions the Committee is investigating occurred in

2016 and 2017, the time period covered by the Audit. Accordingly, as part of its ongoing

investigation of the Debtors' financial affairs and various prepetition transfers, the Committee

filed the instant Motion.

These reports are marked Highly Confidential. In order to comply with the Conficlentialitt, Agreement 017(1

Stipulated Protective Order [Docket No. 5491, the Committee is referring to them generically.

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RELIEF REQUESTED

14. Pursuant to Bankruptcy Rule 2004, the Committee requests this Court to enter an

order substantially in the same form as the Proposed Order attached hereto as Exhibit A ordering

Cherry Bekaert to produce certain documents regarding the issues and matters designated on the

attached Exhibit B. Further, the Committee requests this Court to order Cherry Bekaert, through

the partner in charge of the Audit and/or the senior manager for the Audit, to appear for an

examination to be held at a time and place mutually agreeable to the Committee and Cherry

Bekaert no later than seven (7) calendar clays before the Challenge Deadline regarding the topics

described on the attached Exhibit B.

15. As a fiduciary for all unsecured creditors, the Committee is granted broad

statutory powers to, among other things, "investigate the acts, conduct, assets and liabilities and

financial condition of the debtor. . . and any other matter relevant to the case or to the

formulation of a plan." 11 U.S.C. § 1103(c)(2). The Committee believes that this Motion is

necessary and appropriate pursuant to its duties and efforts to investigate any possible avoidance

actions and fraudulent transfers that could benefit the Debtors' estates and the unsecured

creditors.

16. The Committee seeks information regarding various transactions which occurred

during the time period at issue in the Audit, including various debt issuances and related third

party transactions, the Debtors' financial and accounting practices, and the Debtors' internal

control procedures.

17. The examination of Cherry Bekaert and the Document Requests will inform

whether, and to what extent, the transactions the Committee has identified implicate, inter alio,

(i) breaches of fiduciary or other duties to the Debtors; (ii) transfers that may constitute

fraudulent transfers or preferences; (iii) coordinated actions; and/or (iv) breach of the covenant

of good faith and fair dealing, among other potential causes of action.

18. Each request in the Document Requests seeks information concerning the acts,

conduct, property, liabilities, and/or financial condition of the Debtors, or matters affecting the

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administration of the Debtors' estates. As a result, the Document Requests fall squarely within

the scope of discovery permissible under Bankruptcy Rule 2004. The relief requested herein should

be granted to permit the Committee to adequately investigate claims against the Debtors' estates

and potentially aid in the recovery of assets for the benefit of the Debtors' estates and their

creditors. Accordingly, the Committee respectfully submits that the Motion should be granted,

and the Committee be authorized to conduct the Bankruptcy Rule 2004 discovery requested

herein on an expedited basis.

1 9. Until Cherry Bekaert produces the documents requested by the Document

Requests and appears for examination by the Committee, the Committee will not be able to fully

discharge its fiduciary duties to all creditors by investigating potential claims and causes of

action.

BASIS FOR RELIEF

20. The facts and circumstances set forth herein and as described in the previously

filed motions concerning the Rule 2004 Parties demonstrate that good cause exists to allow the

Committee to pursue the requested Bankruptcy Rule 2004 discovery to further the Committee's

investigation into potential causes of action. The examination of Cherry Bekaert and the

Document Requests are intended to provide a more complete picture of the questionable

transactions that occurred during the time period at issue in the Audit that is not otherwise

available to the Committee.

21. As previously stated. Committee is a fiduciary for all unsecured creditors. Thus,

the Committee is granted broad statutory powers to, among other things, "investigate the acts,

conduct, assets, liabilities. and financial condition of the debtor . . . and any other matter relevant

to the case or to the formulation of a plan." 11 U.S.C. § 1 103(c)(2). To permit the Committee to

exercise its investigative powers, Bankruptcy Rule 2004 provides that "[o In motion of any party

in interest, the court may order" the production of documents. Fed. R. Bankr. P. 2004(c).

22. Discovery under Bankruptcy Rule 2004 includes within its scope, inter cilia, any

matter that may relate to the property and assets of the estate; the financial condition of the


debtor; and any matter that may affect the administration of a debtor's estate. See Fed. R. Bankr.

P. 2004(b); see also "babas v. Global Auto. Grp., LLC (In re MMII Auto. Grp., LUC), 346 B.R.

229, 233 (Bankr. S.D. Fla. 2006) ("Rule 2004 does allow the Trustee to go on a general fishing

expedition so long as the information sought relates to the acts, conduct, or property or to the

liabilities and financial condition of the debtor, or to any matter which may affect the

administration of the debtor's estate. . . . ") (internal quotation omitted); In re Teleglobe

Commc'ns Corp., 493 F.3d 345, 354 n.6 (3d Cir. 2007) (Rule 2004 allows parties with an

interest in the bankruptcy estate to conduct discovery into matters affecting the estate); Official

Comm. of Unsecured Creditors of Cybergenics Corp. v. Chinery, 330 F.3d 548, 564-65 (3d Cir.

2003) ("creditors' committee may certainly assist a debtor in locating property under Bankruptcy

Rule 2004"); In re Wash. Mut., Inc., 408 B.R. 45, 50 (Bankr. D. Del. 2010) ("The purpose of the

examination is to enable the trustee to discover the nature and extent of the bankruptcy estate.");

In re Johns-Manville Corp., 42 B.R. 362, 364 (S.D.N.Y. 1984) (lithe examination of witnesses

having knowledge or the debtor's acts, conduct, liabilities, assets, etc. is [I proper"). Bankruptcy

Rule 2004 affords both debtors and creditors the broad rights of examination of a debtor's or

third party's records. See Snyder v. Soc'y Bank, 181 B.R. 40, 41 (S.D. Tex. 1994), aff'd by In re

Snyder. 52 F.3d 1067 (5th Cir. 1995) (citing Cameron v. U.S., 231 U.S. 710, 716 (1914)).

23. Indeed, the scope of inquiry under Bankruptcy Rule 2004 is broad because "Me

primary purpose of a Rule 2004 examination is for revealing the nature and extent of the

bankruptcy estate, and for discovering assets, examining transactions and determining whether

wrongdoing has occurred." In re Kelton, 389 B.R. 812, 820 (Bankr. S.D. Ga. 2008) (internal

quotations permitted. "The general rule is that the scope a Rule 2004 examination is very broad

and great latitude of inquiry is ordinarily permitted." Id. at 819-20 (quotations omitted); see also

In re Recoton Corp., 307 B.R. 751, 755 (Bankr. S.D.N.Y. 2004). This broad inquiry extends to

third parties -[b]ccause the purpose of the Rule 2004 investigation is to aid in the discovery of

assets, any third party who can be shown to have a relationship with the debtor can be made

subject to a Rule 2004 investigation." In re Ionosphere Clubs, Inc., 156 B.R. 414, 432

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(S.D.N.Y. 1993), affid, 17 F.3d 600 (2d Cir. 1994); see also In re Mittco, Inc., 44 B.R. 35, 36

(Bankr. D. Wis. 1984) ("Where there is a showing that the purpose of the examination is to

enable a party to probe into matters which may lead to the discovery of assets by examining not

only the debtor, but also other witnesses, such inquiry is allowed."); In re Wilcher, 56 B.R. 428,

433 (Bankr. N.D. Ill. 1985) (Rule 2004 examination "may extend to creditors and third parties

who have had dealings with the debtor"). This is because "Hite clear intent of Rule 2004 . . . is

to give parties in interest an opportunity to examine individuals having knowledge of the financial

affairs of the debtor in order to preserve the rights of creditors." In re GI IR Cos., Inc., 41 B.R.

655, 660 (Bankr. D. Mass. 1984).

24. Furthermore, even in instances where estate representatives try to ascertain

whether or not to pursue estate claims, Bankruptcy Rule 2004 is recognized as a proper pre-

litigation device that can uncover facts and circumstances that may demonstrate whether a

debtor's estate holds a claim against a third party and the strength of any such claim. In fact,

"[o]ne of the primary purposes of a Rule 2004 examination is as a pre-litigation device." Wash.

Mut., 408 B.R. at 53. Similarly, as noted in Bennett Fundin Group. Bankruptcy Rule 2004 "is

properly used as a pre-litigation device to determine whether there are grounds to bring an

action[.]" Bennett Funding Grp., 203 B.R. 24, 28 (Bankr. N.D.N.Y. 1996); see In re Rosenberg,

303 B.R. 172, 175 (B.A.P. 8th Cir. 2004) (use of Rule 2004 to investigate potential claims

against the debtor's employer permitted where the claim is an asset of the estate); In re Hughes,

281 B.R. 224, 226 (Bankr. S.D.N.Y. 2002) (rejecting argument that a subpoena issued against an

accounting firm seeking the production of documents was improper because it was primarily

sought for the purpose of investigating potential claims that the debtor may have against the

accounting firm).

25. Understanding the various debt issuances and related third party transactions, the

Debtors' financial and accounting practices, and the Debtors' internal control procedures in

conjunction with the transactions at issue during the time periods covered by the Audit could

have a significant impact on the Debtors' bankruptcy estates. Accordingly, the Committee's

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Motion seeking authorization to serve document requests on, and it necessary, issue subpoenas

for the production of documents by, Cherry Bekaert and the examination of Cherry Bekaert

should be granted.

RESERVATION OF RIGHTS

26. The Committee reserves all rights to serve additional requests for documents or

examinations in the course of its investigation, pursuant to Bankruptcy Rule 2004 or otherwise,

and to propound discovery in connection with this matter and/or any other matter that may arise

in these cases.

27. The Committee further reserves all rights to seek to formally depose Cherry

-Bekaert, through the partner in charge of the Audit and/or the senior manager on the Audit, or a

witness under Federal Rule of Civil Procedure 30(h)(6) iii requested by the Committee, upon

service of appropriate deposition notices and subpoenas, if it determines that such depositions are

warranted.

CONCLUSION

WHEREFORE, the Committee respectfully requests the Court grant the Motion

and enter the Proposed Order attached hereto as Exhibit A, and grant the Committee such further

relief as is just and appropriate.

[Remainder of Ilk> page intentionally left blank]

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Dated: January 30, 2019 BAKER DONELSON BEARMAN CALDWELL

& BERKOWITZ, P.C.

/s/ Rita HuHell Rita Ilullett, Esq.1400 Wells Fargo Tower420 20th Street NBirmingham. AL 35203Telephone: (205) 276-9807

Email: rhullett('(7)bakerdonelson.com

LOWENSTEIN SANDLER LLPJeffrey Cohen. Esq. (admitted Pro Hoc rice)

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

1 251 Avenue or the Americas

New York, New York

Telephone: (212) 262-6700

Facsimile: (212) 262-7402

E mail: jcoheniidowenstein.com

ikimbleOdowenstein.com

and —

Michael Kaplan (admitted Pro Hoc Vice)

Nicole Et]lfree, Esq. (tilllitted Pro Hoc Vice)

One I,owenstein DriveRoseland, New Jersey 07068

(973) 597-2500 (Telephone)

(973) 597-2400 (Facsimile)

E-mail: mkaplan(iidoNkenstein.com nrulrree(adowenstein.com

Counsel for the ()Metal Committee of

Unsecured Creditors


EXHIBIT A

36027/1

01/301)019 2(13628919,5


UNITED STATES BANKRUPTCY COURTFOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

In re:

MISSION COAI, COMPANY, 11_,C, et at.,1

Debtors.



ORDER GRANTING THE OFFICIAL COMMITTEE OF UNSECURED

CREDITORS' MOTION FOR AN ORDER PURSUANT TO BANKRUPTCY

RULE 2004 AUTHORIZING THE EXAMINATION AND PRODUCTION

OF DOCUMENTS BY CHERRY BEKAERT LLP

Upon consideration of The Official Committee of (insectrreof Creditors' for cm

Order Pursuant 10 Bankruptcy Rule 2004 .4Mhorizing the Production of Documents by Cherry

Belated.' LLP (the -IVIotion"),2 and any responses thereto; and the Court having conducted a

hearing on the Motion, and upon the record thereof; and after due deliberation thereon; and good

and sufficient cause existing therefor, it is hereby

ORDERED, ADJUDGED, AND DECREED that:

1. "file Motion is granted as set forth herein.

2. The Committee is authorized to (a) conduct a Rule 2004 examination of Cherry

Bekaert LLP, and (b) serve on Cherry Bekaert LLP document requests substantially in the form

attached as Exhibit B to the Motion.

The Debtors in these chapter I I cases, along with the last Pour digits of each Debtor's federal tax identification


LLC (6068); Oak Grove Resources, LLC (0300); Pinnacle Land Company, LLC (6070); Pinnacle Mining Company,

LLC (7780); Seminole Alabama Mining Complex, LLC (6631); Seminole Coal Resources, I,I,C (1795); Seminole

West Virginia Mining Complex, LLC (7858); Seneca Coal Resources, LI,C (1816); and Seneca North American

Coal, LLC (5102). The location of the Debtors' service address is: 7 Sheridan Square, Suite 300, Kingsport,

Tennessee 37660.

- Capitalized terms used but otherwise not defined herein shall have the meanings ascribed to such terms in the

Motion.

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Cherry Bekaert I,I,P must respond to the document requests attached as Exhibit 13

to the Motion on a rolling basis following the entry of this Order so as to be completed no later

than eight (8) calendar days after entry of this Order.

4. The Committee is authorized to examine Cherry Bekaert LLP, through the partner

in charge of the Audit and/or the senior manager on the Audit, or a witness under Federal Rule of

Civil Procedure 30(b)(6) if requested by the Committee. Such examinations shall be completed

no later than seven (7) calendar days before the Challenge Deadline.

5 . Nothing in this Order shall be deemed to limit or restrict the Committee's right to

seek further discovery, including but not limited to additional documents. communications, and

formal depositions, from Cherry Bekaert

6. Notwithstanding Bankruptcy Rule 6004(h), this Order shall be effective and

enforceable immediately upon entry.

7. This Court shall retain jurisdiction to resolve any disputes arising from or related

to this Order, and to interpret, implement, and enforce the provisions of this Order.

Dated: Birmingham, AlabamaFebruary , 2019

HONORABLE TAMARA 0. MITCI TELL

UNITED STATES BANKRUPTCY JUDGE


EXHIBIT B


UNITED STATES BANKRUPTCY COURT

FOR THE NORTHERN DISTRICT OF ALABAMASOUTHERN DIVISION

In re:

MISSION COAL COMPANY, LLC, et a/.,1

Debtors.



THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS' REQUESTS

FOR DOCUMENTS AND INFORMATION FROM CHERRY BEKAERT LLP AND

TOPICS FOR EXAMINATION

DEFINITIONS

1. "Bankruptcy Court" means the United States Bankruptcy Court for the

Northern District of Alabama, Southern Division.

"Chapter 11 Cases" means the chapter 11 cases filed by the Debtors in the

Bankruptcy Court on the Petition Date, jointly administered under Case No. 18-04177.

3. "Cherry Bekaert means Cherry Bekaert LLP, including its present and

former parents, members, partners, direct and indirect subsidiaries, affiliates, predecessors,

successors, employees, managers, officers, directors, agents, advisors, contractors,

representatives, attorneys, and all other persons and entities acting or purporting to act on its

behalf.

4. "Communication" means any writiml., or any oral conversation of any kind

or character, including, by way of example and without limitation, e-mails, instant messages, text

The Debtors in these chapter 1 1 cases, along with the last four digits of each Debtor's federal tax identification


LLC (6068); 0 ik Grove Resources, LI.0 (0300); Pinnacle band Company, LLC (6070); Pinnacle Mining Company,

LLC (7780); Seminole Alabama Mining Complex, LLC (6631); Seminole Coal Resources, LLC (1795); Seminole

West Virginia Mining Complex, LLC (7858); Seneca Coal Resources, LLC (1816); and Seneca North American

Coal, LLC (5102). The location of the Debtors' service address is: 7 Sheridan Square, Suite 300, Kingsport,

Tennessee 37660.

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01/30/2019 2036322 14 4


messages, voicemail or messages, personal conversations, telephone conversations, letters,

meetings, memoranda, telegraphic and telex communications or transmittals of Documents, and

all Documents concerning such writing or such oral conversation.

5. "Concerning" means consisting of, reflecting, referring to, relating to,

regarding, involving, evidencing, constituting, or having any legal, logical, evidential, or factual

connection with (whether to support or to rebut) the subject matter designated in any paragraph

of these requests. A request for documents "concerning" a specified subject matter always shall

include communications, notes, and memoranda (whenever prepared) relating to the subject

matter of the request.

6. "Debtors" means the above-captioned debtors and debtors-in-possession,

including their predecessors or successors, assignees, prior or current parents, members, partners,

subsidiaries, affiliates or controlled companies, and each of their prior or current Officers,

Directors, managers, employees, agents, advisors, and attorneys.

7. "Directors" means each present and former director of the Debtors and

Non-Debtors.

8. "Document(s)" means, without limitation, the original and all copies, prior

drafts, and translations of information in any written, typed, printed, recorded or graphic form,

however produced or reproduced, or any type Or description, regardless of origin or location,

including without limitation all Electronically Stored Information, correspondence, records,

tables, charts, analyses, graphs, schedules, reports, memoranda, notes, lists, calendar and diary

entries, letters (sent or received), telegrams, telexes, messages (including, but not limited to,

reports of telephone conversations and conferences), studies, books, periodicals, magazines,

booklets, circulars, bulletins, instructions, papers, files, minutes, other communications

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(including, but not limited to, inter- and intra-office communications), questionnaires, contracts,

memoranda or agreements, assignments, licenses, ledgers, books of account, orders, invoices,

statements, bills, checks, vouchers, notebooks, receipts, acknowledgments, microfilm,

photographs, motion pictures, video tapes, photographic negatives, phonograph records, tape

recordings, wire recordings, voice mail recordings or messages, other mechanical records,

transcripts or logs of any such recordings, and all other data compilations from which

information can be obtained. The term "Document(s)" is intended to be at least as broad in

meaning and scope as the usage of this term in or pursuant to the Federal Rules of Civil

Procedure.

followinLY:

"Electronically Stored Information" shall include, without limitation, the

a. Information that is generated, received, processed, recorded, or

accessed by computers and other electronic devices, including but not

limited to e-mail;

b. Internal or external web sites:

c. Output resulting from the use of any software program; and

d. All items stored on cache memories, magnetic disks (such as computer

hard drives or floppy drives), optical disks (such as DVDs or CDs),

magnetic tapes, microfiche, or on any other media for digital data

storage or transmittal (e.g., a smartphone such as an iPhone , a tablet

such as an iPad®, or a personal digital assistant such as a

Blackberryt).

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10. "Mission Coal" means Mission Coal Company, LLC, including its present

and former parents, members, partners, direct and indirect subsidiaries, affiliates, predecessors,

successors, managers, employees, Officers, Directors, agents, advisors, contractors,

representatives, attorneys, and all other persons and entities acting or purporting to act on its

behalf.

11. "Non-Debtors" means any affiliate and/or direct or indirect subsidiary of

the Debtors who are not Debtors in the Chapter 11 Cases, including their professionals,

employees, agents and other representatives.

1 2. "Officers" means each present and former officer of the Debtors and Non-

Debtors.

13. "Person" means any natural person or any business, legal, or governmental

entity or association.

14. "Petition Date" means October 14, 2018.

15. "Relating to" means consisting of, reflecting, referring to, regarding.

Concerning, involving, evidencing, constituting, or having any legal, logical, evidential, or

factual contention with (whether to support or to rebut) the subject matter designated in any

paragraph of this request. A request for documents "relating to" a specified subject matter

always shall include notes and memoranda (whenever prepared) relating to the subject matter of

the request.

16. The -Audit- means the Combined Financial Statements of Consolidated

Seneca Coal Resources, 11.0 and Consolidated Seminole Coal Resources, LLC as of and for the

Years Ended December 31, 2017 and 2016 issued by Cherry Bekaert on or about April 30, 2018.

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17. "Mission Coal AU-C 265 Management Letter.pdf' means the April 30,

2018 memorandum to the members and management of Seneca Coal Resources, LLC and

Seminole Coal Resources, TIC bearing the file name "Mission Coal AU-C 265 Management

Letter.pdf."

RULES OF CONSTRUCTION

1. The following rules of construction apply to these Requests: (1 ) the terms

"all" and "each" shall be construed as all and each (2) the connectives, and" and "or" shall be

construed either disjunctively or conjunctively as necessary to bring within the scope of these

Requests all responses that might otherwise be construed to be outside of their scope; and (3) the

use of the singular form of any word shall include the plural and vice versa.

2. Capitalized terms not defined herein shall have the meaning ascribed to

them in the Official Committee of Unsecured Creditors' Requests for Documents and

Inlarmation From the Debtors (Docket No. 244-2), as applicable. All other words, terms, and

phrases not defined herein are to be given their normal and customary meaning in the context in

which they are used.

INSTRUCTIONS

1. Unless otherwise indicated, all documents shall be produced for the

relevant time period, including any documents having an earlier origin and in use during the

relevant time period.

2. The obligation to produce documents responsive to these Requests shall be

continuing in nature, and a producing party is required promptly to produce any document

requested herein that it locates or obtains after responding to these Requests, up to the conclusion

of the Chapter 11 Cases.

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3. Where an objection is made to any document request, the objection shall

state with specificity all grounds for objection.

4. Where a claim of privilege is asserted in objecting to the production of any

document and a document called for by this Request is withheld on the basis of such assertion,

the objecting party shall identify the nature of the privilege (including work product) that is

being claimed and, if the privilege is governed by state law, indicate the state's privilege rule

being invoked. In addition, the objecting party shall provide the following information with

respect to any document so withheld: (i) the type of document, e.g., letter or memorandum; (ii)

the general subject matter of the document; (iii) the date of the document; and (iv) such other

information as is sufficient to identify the document for a subpoena duces tecin» including,

where appropriate, the author of the document, the addressees of the document, and any other

recipients shown in the document, and, where not apparent, the relationship of the author,

addressees, and recipients to each other.

In the event that a requested document has been lost, destroyed, discarded,

and/or otherwise disposed of; the parties will identify the document by identifying: (i) its author

or preparers (ii) all persons to whom distributed or shown; (iii) date; (iv) subject matter; (v)

attachments or appendices; (vi) date, manner, and reason for destruction or other disposition;

(vii) person authorizing destruction or other disposition; (viii) the document request or requests

to which the document is responsive.

6. Produce all responsive documents as they are kept in the usual course of

business, or organize and label them to correspond with the Request to which they are

responsive.


DOCUMENT REQUESTS TO CHERRY BEKAERT

1. Any and all audit work papers Concerning or Relating to the Audit.

2. Any and all Documents and Communications Concerning or Relating to any audit

tiles and/or "permanent work papers" used as background for the Audit, including, but not

limited to, loan documents, bank statements, credit card statements or other accounting

reconciliation documents used to verily any of the Debtors' transactions.

Any engagement letter or retention agreement between Cherry Bekaert and the

Debtors (or any of them) from January 1, 2015 through the current date.

4. Any Communications with the Debtors (or any of them) Concerning or Relating

to the engagement or retention of Cherry Bekaert from January 1, 2015 through the current date.

5. Any and all Documents and Communications (including but not limited to

Communications with the Debtors, third parties and internal Cherry Bekaert Communications)

used to confirm the debt transactions and amounts set forth in the Combined Balance Sheets and

Notes to the Combined Financial Statements in the Audit.

6. Any and all Documents Concerning or Relating to sources/uses for each of the

debt transactions discussed in the Audit.

7. Any and all Documents Concerning or Relating to the related party transactions in

Note 14 of the Audit.

8. Any and all Communications Concerning or Relating to the full impairment of

loans with affiliated entities in Note 14 of the Audit.

9. Any and all Communications between Cherry Bekaert and the Debtors (or any of

them) and/or the any of the Debtors' Officers, Directors, managers and employees Concerning or

Relating, to the conclusions and results of the Audit.

1 0. Any and all Documents, including drafts of memoranda, Concerning or Relating

to "Mission Coal AU-C 265 Management Letter.pdr from January 1. 2015 through the current

date.

11. Any and all Documents Concerning or Relating to any disagreements between

Cherry Bekaert and the Debtors' management, including the Debtors' Officers, Directors,

managers and employees, regarding accounting issues from January 1, 2015 through the current

date.

12. Any and all work papers and Documents Relating to Note 12 of the Audit.

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13. Any and all Documents dated between April 1, 2018 and May 31, 2018 fromCherry Bekaert to the Debtors Concerning or Relating to the Audit. including but not limited to-Mission Coal AU-C 265 Management Letter.pdf- and any other letters or memoranda issued inconjunction with the Audit.

EXAMINATION TOPICS

Mission Coal.

2. Any and all a' greements, Communications, negotiations or discussions by or onbehalf of Cherry Bekaert and any third party Concerning or Relating to Cherry Bekaert'sretention by, and work or services performed for, Mission Coal.

3. Any and all agreements, Communications, negotiations or discussions by or onbehalf of Cherry Bekaert and any third party Concerning or Relating to Mission Coal and theAudit.

4. Preparation of the Audit.

5. "l'he Audit.

6. Any and all interactions and Communications with the Debtors and the Debtors'Officers, Directors, managers and employees Concerning or Relating to the Audit.

7. Any and all interactions and Communications with the Debtors and the Debtors'

Officers, Directors, managers and employees Concerning or Relating to the conclusions and/or

results of the Audit.

8. Any and all Documents, findings, reports or other memoranda prepared as part of

the Audit or prior accounting services performed by Cherry Bekaert for Mission Coal.

9. The authentication, source and creation of any Documents produced in responseto the Document Requests set forth herein.

10. Any Documents produced in response to the Document Requests set forth herein.

1 1. The Debtors' and Non-Debtors' financial conditions and transactions by and

among them and various third parties.

[Remainder of the page intenlionaTh: left blank]

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Dated: January 30, 2019 BAKER DONELSON BEARMAN CALDWELL

& BERKOWITZ, P.C.

/s/ Rita Mullett Rita Hullen, Esq.1400 Wells Fargo Tower420 20th Street NBirmingham, AL 35203Telephone: (205) 276-9807

rhullett bakerdonelson.com

LOWENSTEIN SANDLER LLPJeffrey Cohen, Esq. (admitted Pro HOC riCC)Jennifer Kimble. Esq. (ASB-9593-E62K)1251 Avenue of the AmericasNew York, New YorkTelephone: (212) 262-6700Facsimile: (212) 262-7402E mail: jcohen4idowenstein.com

ikimble idowensteincom

— and

Michael Kaplan (admitted Pro Hue Vice)Nicole Fulfree, Esq. (admitted Pro Hue rice)One Lowenstein DriveRoseland, New Jersey 07068(973) 597-2500 (Telephone)(973) 597-2400 (Facsimile)E-mail:

mkaplani)lowenstein.com nfulfreerii':lowenstein.com

Counsel for the Official Committee of.

Unsecured Creditors
