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Disclaimer
The material in this webinar is for informational purposes only. It should not be considered
legal, financial or other professional advice. You should consult with an attorney or other
appropriate professional to determine what may be best for your individual needs. While
Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate,
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4

Meet the Faculty
MODERATOR:
Ashley Jericho – McDonald Hopkins
PANELISTS:
Maria Carr – McDonald Hopkins LLC
Trinitee Green – Polsinelli LLP
Benjamin L. Wallen – Pachulski Stang Ziehl & Jones
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About This Webinar
The Nuts & Bolts of a First Day Hearing
Even when a bankruptcy petition is the result of a soft-landing rather than a freefall, filing a chapter 11
petition is a disruptive event. To facilitate the debtor’s entry into chapter 11 with as little disruption as
possible, first day motions are filed to ensure that a debtor-in-possession can minimize interruptions and
continue operating its business in order to achieve its goals in chapter 11. This webinar provides an
overview of the administrative and operational first day motions typically filed by chapter 11 debtors and
the process for requesting a first day hearing, providing notice of the hearing, and ensuring that the
hearing runs smoothly.
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About This Series
The Nuts & Bolts of Bankruptcy Law 2022
During the past few years, companies across a broad spectrum of industries have faced challenges stemming
from the COVID-19 pandemic, supply chain interruptions, labor shortages, and inflation, among others things.
Many businesses have been crippled by decreased revenues, increased debt, uncertain prospects and
vaporized equity. Sometimes companies in distress cannot heal on their own and are forced to check into the
hospital of Chapter 11 . . . or arrive at the door of the emergency room before negotiating a cure. If you need to
understand Chapter 11 – whether to avoid it or learn how to harness its power – this program is for you.
Designed for the corporate attorney, litigator, business consultant, executive and others not already experienced
in Chapter 11, each episode in this Financial Poise webinar series takes a deep dive into one aspect of a
Chapter 11 bankruptcy case at a level that can be understood by the non-expert.
Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and
executives without background in these areas, yet also invaluable to seasoned attorneys, accountants, and other
professionals who need to refresh their understanding of this timely topic. Each episode brings you an engaging
conversation designed to entertain as it teaches, and may be viewed independently so that your knowledge will be
enhanced whether you attend one, some, or all episodes.
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Episodes in this Series
#1: The Nuts & Bolts of a Chapter 11 Plan
Premiere date: 5/3/22
#2: The Nuts & Bolts of a Lift Stay Motion
Premiere date: 6/7/22
#3: The Nuts & Bolts of DIP Financing
Premiere date: 7/12/22
#4: The Nuts & Bolts of a 363 Motion
Premiere date: 8/16/22
#5: The Nuts & Bolts of Retention
Premiere date: 9/2/22
#6: The Nuts & Bolts of a First Day Hearing
Premiere date: 10/25/22
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Episode # 6
Nuts & Bolts of a First Day Hearing
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Introduction to First Day Motions
• “First day” motions seek immediate relief on an interim or final basis to ease a debtor’s
transition into bankruptcy.
• First day motions provide:
o Relief that addresses administrative issues; and
o Substantive relief that is needed to maintain the debtor’s operations.
▪ Substantive relief is often granted on an interim basis to provide for sufficient
notice to interested parties and an opportunity for interested parties to object to the
requested relief before it is granted on a final basis.

Introduction to First Day Motions (cont’d)
• First Day Motions allow the debtor to:
o Tell its story and map out a plan for the Chapter 11 case
o Establish credibility with the bankruptcy court, United States Trustee, creditors, and
other parties in interest
o Maintain the support of its employees, customers, and suppliers
o Obtain necessary relief to allow the debtor to continue its operations

Administrative First Day Motions
• Joint Administration Motion
o When affiliated debtors file petitions in the same court, the debtors may seek to jointly administer
the cases under a main case, in the interest of efficiency and economy.
o For administrative purposes only - does not involve pooling of assets or liabilities.
o Joint administration allows for:
▪ Use of a single docket for the jointly administered cases; and
▪ Combined notices to creditors.
• Motion for Extension of Time to File Schedules
o Extensions are regularly granted in large Chapter 11 cases to extend the deadline to file the
debtor’s schedules and statement of financial affairs beyond the Fed. R. Bankr. P. 1007 deadline
(14 days from petition date).

Administrative First Day Motions (cont’d)
• Notice and Case Management Procedures
o May request that the court:
▪ Limit notice under Fed. R. Bankr. P. 2002(m) to parties likely to have an interest in
the relief being sought and to any other parties that request notice instead of all
creditors;
▪ Set omnibus hearing dates;
▪ Set procedures for telephonic or virtual appearances;
▪ Set procedures for filing and service of motions, applications, objections; and/or
▪ Set procedures for filing and service in adversary proceedings.
o Check local rules to see if the court has adopted standard case management
procedures.

Administrative First Day Motions (cont’d)
• Motion for Designation as Complex Chapter 11 Case
o Some courts have local procedures for complex Chapter 11 cases
o Complex Chapter 11 case procedures may provide for processes and requirements,
including:
▪ Expedited first day motions;
▪ Set omnibus hearing dates;
▪ Guidelines for paying professional fees, selling assets, or obtaining DIP financing.
o If the court designates the case as complex, the court’s complex chapter 11 case
procedures will apply.

Administrative First Day Motions (cont’d)
• Retention of Claims Agent
o Requests retention of an outside agent to provide claims and noticing services.
o Claims agent may also provide additional services, including assistance with
preparation of the schedules and statements of financial affairs, claims reconciliation,
and solicitation and balloting services for the Chapter 11 plan.
o Claims agent is paid from the estate (see 28 U.S.C. § 156(c)).

Operational First Day Motions
• Employee Wage and Benefits Motion
o Seeks authority to pay prepetition wages and benefits up to the statutory priority cap
▪ 11 U.S.C. § 507(a)(4): Wages and benefits earned within 180 days of the petition
date that remain unpaid, including vacation, severance, and sick leave pay, are
entitled to priority.
▪ 11 U.S.C. § 507(a)(5): Contributions to an employee benefit plan are entitled to
priority.
▪ The statutory cap for priority treatment is $15,150 (amount changes periodically)
per employee under each subsection. Amounts in excess of this cap or earned
before the 180 day window are treated as general unsecured claims.

Operational First Day Motions (cont’d)
• Critical Vendors Motion
o Seeks authority to pay prepetition vendors that are deemed crucial and non-replaceable to
ensure uninterrupted postpetition services or supply of goods under 11 U.S.C. § § 105 and §
363(b).
o Critical vendor requests are generally conditioned on the vendor's agreement to favorable trade
terms and an agreement to disgorge the payment if the postpetition agreement on terms is
breached.
▪ Typically, a vendor must: (a) continue to do business with the debtor on existing or better
trade terms; (b) agree to release goods or other assets of the debtor that are in the vendor’s
possession; and (c) confirm that it has no lien on the debtor’s assets based on non-payment
of prepetition claims.

Operational First Day Motions (cont’d)
• Motions to Pay Possessory Lienholders
o Seeks authority to pay these prepetition claims of possessory lienholders (shippers,
mechanics, warehousemen, customs brokers) under 11 U.S.C. § § 105 and 363(b) on
the following grounds:
▪ Under the doctrine of necessity as a critical vendor;
▪ To preserve value as a going concern;
▪ To avoid disruption in the delivery of goods that are in transit, have been repaired,
or are warehoused that are subject to possessory or statutory liens; or
▪ To the extent that the claims are entitled to priority under 11 U.S.C. § 507(a)(8).

Operational First Day Motions (cont’d)
• Honoring Customer Programs Motions
o Seeks authority to pay prepetition claims arising from customer programs (for
example, warranty programs, gift cards, reward programs, and service programs).
o Courts have permitted debtors to honor such prepetition obligations on the basis that
they are priority claims under 11 U.S.C. § 507(a)(7).
▪ Customers that made a deposit with the debtor before the petition date hold
priority claims up to $3,350 (amount changes periodically) under 11 U.S.C. §
507(a)(7).

Operational First Day Motions (cont’d)
• Insurance Motions
o If prepetition insurance premiums remain unpaid as of the petition date, the debtor
must obtain authority from the bankruptcy court to pay the premiums as prepetition
claims under 11 U.S.C. § § 105, 363, 364, or 365.
o The US Trustee operational guidelines and other applicable laws require companies to
maintain certain insurance.
• Motions to Pay Prepetition Taxes
o Debtors frequently seek authority under 11 U.S.C. § § 105, 507(a)(8) and 541 to pay
prepetition sales, use, and franchise taxes.
▪ Certain taxes are treated as trust funds under applicable law and entitled to priority
treatment under 11 U.S.C. § 507(a)(8).

Operational First Day Motions (cont’d)
• Utilities Motion
o Debtors with multiple utilities often file a first day motion to establish procedures for providing
utilities with adequate assurance of payment.
▪ 11 U.S.C. § 366 prohibits utilities from denying service to the debtor based on nonpayment
of a prepetition debt if the debtor provides the utility with adequate assurance of payment for
postpetition services within 20 days after the date of the order for relief.
▪ Under 11 U.S.C. § 366(c)(2), a utility may alter, refuse, or discontinue service if the utility
does not receive satisfactory adequate assurance of payment during the 30 day period after
the petition date.
▪ Typical forms of assurance of payment can include (a) a cash deposit; (b) a letter of credit;
(c) a certificate of deposit; (d) a surety bond; (e) prepayment for the utility use; or (f) a
mutually agreed form of security.

Operational First Day Motions (cont’d)
• Cash Collateral and DIP Financing Motions
o A Chapter 11 debtor typically requires DIP financing and the ability to use cash collateral to fund
the debtor's postpetition operations and the costs of the bankruptcy case.
▪ Both require bankruptcy court approval and are typically necessary to fund the debtor from
the first day of the case.
▪ Without access to cash or financing, the debtor cannot fund payroll, utilities, rent, and other
necessary postpetition expenses.
o Check out Episode 3 of this series to learn more about DIP financing motions and hearings.

Operational First Day Motions (cont’d)
• Cash Management Motions
o Debtors with complex cash management systems frequently seek a variance from the United
States Trustee operational guidelines that require a Chapter 11 debtor to close existing bank
accounts and open new debtor-in-possession accounts.
o Debtors file cash management motions to request authority under 11 U.S.C. § § 363 and 105 to
continue to use their existing accounts, cash management systems, and checks.
▪ Without this relief, a large Chapter 11 debtor's operations may come to a halt while the
debtor makes the required changes to its financial system.

Operational First Day Motions (cont’d)
• Reclamation and 503(b)(9) Procedures Motions
o Debtors often seek approval of uniform procedures for asserting reclamation demands and
section 503(b)(9) claims.
▪ Reclamation procedures provide a mechanism for addressing reclamation demands in an
organized way and provide assurance to vendors that valid claims are recognized and paid.
o If a debtor anticipates that it will receive multiple reclamation demands, it can file a motion
seeking approval of procedures that require vendors to assert an administrative claim under 11
U.S.C. § 503(b)(9) instead of exercising a right to reclaim goods.

Non-First Day Motions/Applications
• Other motions or applications may be filed shortly after the petition date, but are not heard
at the first day hearing, including:
o Motions to retain bankruptcy professionals;
o Motions to retain ordinary course professionals;
o Motions to approve interim compensation procedures; and
o Motions for pro hac vice admission.

First Day Hearing
• Service of Notice of Hearing
o Once the hearing is schedule, the debtor typically serves the notice of hearing via facsimile,
email, or overnight mail on the following parties and their counsel, if known: (a) United States
Trustee; (b) prepetition secured lender; (c) top twenty unsecured creditors; (d) DIP lender; (e)
U.S. Attorneys’ office; (f) SEC; and (g) IRS.
• First Day Agenda
o Counsel for the debtor should prepare and file a proposed agenda of matters to be heard at the
first day hearing.

Structure of a First Day Hearing
• Introductory Statement
o Debtor’s counsel describes the events leading up to the Chapter 11 filing, the general relief sought on a first
day basis, and the debtor’s plan for the case.
o Counsel typically asks the court for permission to present the first day motions in the order reflected in the first
day agenda.
• Introduction of first day witness/declarant
o The facts that provide the basis for a debtor's first day motions are typically collected in an affidavit or
declaration of an officer of the debtor that is available, if necessary, to testify at the first day hearing.
• Presentation on administrative motions
• Presentation on operational motions
• Submission of first day orders

About the Faculty
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About The Faculty
Ashley Jericho - ajericho@mcdonaldhopkins.com
Ashley is an associate in the Strategic Advisory and Restructuring Department at McDonald
Hopkins LLC. She has over 10 years of insolvency experience, including representing
consumer and business debtors, creditors and trustees in bankruptcy proceedings, contested
matters and adversary proceedings. Before joining McDonald Hopkins, she gained
experience as a shared law clerk at the United States Bankruptcy Court for the Eastern
District of Michigan, law clerk to Hon. Walter Shapero (ret.) in the United States Bankruptcy
Court for the Eastern District of Michigan, and as an associate attorney at a metro-Detroit
bankruptcy and litigation firm. Ashley earned her J.D., magna cum laude, from Western
Michigan Cooley Law School in 2008, where she served as the associate editor of the
Thomas M. Cooley Law Review. She received a B.A. in political science from Washington
and Jefferson College in 2004.
29

About The Faculty
Maria Carr - mcarr@mcdonaldhopkins.com
Maria Carr is associate counsel at PRA Group, a distressed debt buyer based out of Norfolk,
Virginia. Before joining PRA in April 2022, Maria was an associate at McDonald Hopkins LLC
who focused her practice on corporate restructuring, commercial bankruptcy, business
counseling, and creditors’ rights matters. Maria frequently counseled businesses and
fiduciaries in chapter 11 bankruptcy proceedings, state or federal receiverships, out of court
workouts, or other insolvency proceedings. Maria also represented secured and unsecured
creditors in these proceedings, and handled litigation arising out of and related to bankruptcy
or receivership cases. Maria also has experience representing purchasers of assets of
distressed businesses and liquidating trustees in various bankruptcy and distressed matters.
30

About The Faculty
Trinitee Green - tggreen@polsinelli.com
Trinitee Green focuses her practice on complex restructuring and insolvency matters, primarily representing Chapter 11
debtors. Although Trinitee has represented debtors in a variety of industries, such as manufacturing, distribution, retail,
real estate, and distressed health care, her expertise is most significant in the health care space. In addition to mega
debtors, Trinitee has represented debtors (and creditors) in Subchapter V cases since the Bankruptcy Code was
amended in 2020. In just two years, she co-led two Subchapter V cases and helped two small business healthcare
companies confirm plans of reorganization in Delaware and Texas.
Trinitee regularly represents creditors, secured and unsecured, in restructuring matters. She has represented
committees, trustees, and receiverships in federal and state court. Trinitee has substantial experience defending and
prosecuting avoidance actions and she routinely represents secured lenders in contested bankruptcy matters.
With this experience, Trinitee has developed strong negotiation skills, which she uses to obtain the best result for each
client. She regularly achieves successful agreements between parties even when a successful outcome seems unlikely,
and often exceeds the expectations of clients. When parties are unable to reach an agreement, Trinitee is ready to take
her client’s case to trial.
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About The Faculty
Benjamin L. Wallen - bwallen@pszjlaw.com
Ben Wallen graduated from the University of Oklahoma in 2013 and from the University of
Houston Law Center in 2016. While in law school, he was a judicial intern for the Honorable
David R. Jones, U.S. Bankruptcy Court for the Southern District of Texas, and for the
Honorable Harold R. DeMoss Jr., U.S. Court of Appeals for the Fifth Circuit. Ben also worked
for the Mexican government as a legal intern for la Comisión Nacional de Hidrocarburos. In
addition, Ben was a research assistant to Professor Jim Hawkins and served as the chief
articles editor for the Houston Business and Tax Law Journal, where he currently serves on
the board of trustees. Shortly before graduating law school, Ben was awarded the American
Bankruptcy Institute Medal of Excellence.
32

Questions or Comments?
If you have any questions about this webinar that you did not get to ask during the live
premiere, or if you are watching this webinar On Demand, please do not hesitate to email us
at info@financialpoise.com with any questions or comments you may have. Please include
the name of the webinar in your email and we will do our best to provide a timely response.
IMPORTANT NOTE: The material in this presentation is for general educational purposes
only. It has been prepared primarily for attorneys and accountants for use in the pursuit of
their continuing legal education and continuing professional education.
33

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