Vyaire - COC - DIP Motion Final Order Final
- Date
- 2024-07-09
Summary
Doc 232-2, filed July 9, 2024 in In re Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), in the U.S. Bankruptcy Court for the District of Delaware, is Exhibit 2, a blackline comparing the interim order with the proposed final order on the debtors' postpetition financing motion. The order authorizes the debtors to obtain postpetition financing, use cash collateral, grant liens and superpriority administrative expense claims, provide adequate protection and modify the automatic stay. It describes a DIP Facility in the aggregate principal amount of $180,000,000, made up of $45,000,000 in New Money Loans and up to $135,000,000 in Roll-Up Loans, with Wilmington Savings Fund Society, FSB as DIP Agent. The closing paragraphs address insurance policies issued by Chubb, the effect of the order and retention of jurisdiction. The document runs 90 pages.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
Case 24-11217-BLS Doc 232-2 Filed 07/09/24 Page 1 of 90
Exhibit 2
Blackline
Case 24-11217-BLS Doc 232-2 Filed 07/09/24 Page 2 of 90
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re: ) Chapter 11
)
VYAIRE MEDICAL, INC., et al.,1 ) Case No. 24-11217 (BLS)
)
Debtors. ) (Jointly Administerationed
Requested)
) Re: Docket NoNos. 12 & 103
INTERIMFINAL ORDER (I) AUTHORIZING THE DEBTORS
TO OBTAIN POSTPETITION FINANCING, (II) AUTHORIZING
THE DEBTORS TO USE CASH COLLATERAL, (III) GRANTING
LIENS
AND PROVIDING SUPERPRIORITY ADMINISTRATIVE
EXPENSE CLAIMS,
(IV) GRANTING ADEQUATE PROTECTION,
(V) MODIFYING AUTOMATIC STAY,
AND (VI) SCHEDULING A FINAL HEARING, AND (VII) GRANTING RELATED
RELIEF
Upon the motion (the “Motion”)2 of the above-captioned debtors and debtors in
possession (collectively, the “Debtors”) in the above captioned chapter 11 cases (collectively, the
“Cases”), pursuant to sections 105, 361, 362, 363, 364, 506(c), 507, and 552 of title 11 of the
United States Code (as amended, the “Bankruptcy Code”), rules 2002, 4001, 6003, 6004, and
9014 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), and Rules
2002-1(b), 4001-2, 9006-1, and 9013 of the Local Rules of Bankruptcy Practice and Procedure of
1
The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495. A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may
be obtained on the website of the Debtors’ proposed claims and noticing agent at
https://omniagentsolutions.com/Vyaire. The location of Debtor Vyaire Medical, Inc.’s principal place of
business and the Debtors’ service address in these chapter 11 cases is 26125 North Riverwoods Boulevard,
Mettawa, Illinois, USA 60045.
2
Capitalized terms used but not defined herein have the meanings given to such terms in the Motion or the DIP
Credit Agreement (as defined herein).
Case 24-11217-BLS Doc 232-2 Filed 07/09/24 Page 3 of 90
the United States Bankruptcy Court for the District of Delaware (the “Local Rules”), seeking
entry of this interimfinal order (this “InterimFinal Order”):
(i) authorizing Vyaire Medical, Inc. and Vyaire Finance B.V., in their
capacities as borrowers (the “DIP Borrowers”), to obtain postpetition financing, and for
each of the other Debtors to guarantee unconditionally (the Debtors, other than the DIP
Borrowers, the “DIP Guarantors”) on a joint and several basis, the DIP Borrowers’
obligations in connection with a superpriority senior secured multiple draw term loan
credit facility (the “DIP Facility”) in the aggregate principal amount of $180,000,000 (the
“DIP Loans”), consisting of:
(a) New Money Loans. A superpriority senior secured
multiple draw term loan credit facility in the principal amount of $45,000,000 (the
“New Money Commitments” and the term loans made thereunder, the “New
Money Loans”), which New Money Loans shall bewere fully funded upon entry
of thisthe Interim Order (as defined below) in accordance with the terms and
conditions set forth in the DIP Credit Agreement (as defined below), substantially
in the form attached heretoto the Interim Order as Exhibit A and all other terms
and conditions of the DIP Documents (as defined below);
(b) Roll-Up Loans. A superpriority term loan facility in the
principal amount of up to $135,000,000 (the “Roll-Up Loans”), of which (x)
$75,000,000 will bewas deemed funded in accordance with clause (i) below on
the date of thisthe entry of the Interim Order, and (y) up to an additional
$60,000,000 will be deemed funded in accordance with clause (ii) below, subject
to the entry of and the terms of the Final Order, which Roll-Up Loans shall be
deemed funded and an equal amount of First Lien Term Loans (as defined below)
shallwas, or will be, deemed converted into and exchanged for, such Roll-Up
Loans, in each case, at the times, and in accordance with the terms and conditions,
set forth in the DIP Credit Agreement and the other DIP Documents and as set
forth below.
(i) On the date of thisthe Interim Order, concurrently with the
making of the New Money Loans as described in clause (a) above,
$75,000,000 in aggregate principal amount of First Lien Term
Loans shall bewere deemed converted into and exchanged for
Roll-Up Loans (the First Lien Term Loans rolled-up pursuant to
this clause (b), the “Rolled-Up First Lien Term Loans” and, the
First Lien Term Loans that are not Rolled-Up First Lien Term
Loans, the “Remaining First Lien Term Loans”), and $75,000,000
of Roll-Up Loans shall bewere deemed funded on the date of
thisthe Interim Order, without constituting a novation, and shall
satisfy andwhich deemed funding satisfied and discharged
$25,000,000 in aggregate principal amount of Rolled-Up First Lien
Term Loans. The Roll-Up Loans deemed funded on the date of
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thisthe Interim Order shall bewere deemed to be made by each
Backstop Party (as defined in the DIP Credit Agreement) (or an
investment advisor, manager, or beneficial owner for the account
of a Backstop Party, or an affiliated fund or trade counterparty
designated by such Backstop Party) (such initial lender holding
such Roll-Up Loans, the “Closing Date Roll-Up Lenders”) in an
amount equal to the lesser of (x) the aggregate principal amount of
the First Lien Term Loans owing to the applicable Closing Date
Roll-Up Lenders on the date of thisthe Interim Order and (y) an
amount equal to (I) $75,000,000 multiplied by (II) the quotient of
the amount set forth next to each Backstop Party’s name on
Schedule 2.09 of the DIP Credit Agreement divided by the sum of
all amounts set forth on Schedule 2.09 of the DIP Credit
Agreement.
(ii) Subject to the entry of and the terms of the Final Order,
onOn each Withdrawal Date (as defined in the DIP Credit
Agreement), concurrently with and automatically upon the
withdrawal from the Loan Proceeds Account (as defined in the DIP
Credit Agreement) and disbursement of New Money Loans to the
DIP Borrowers on such Withdrawal Date (the aggregate amount of
New Money Loans funded by any DIP Lender and so withdrawn
and disbursed on any such Withdrawal Date, such DIP Lender’s
“Withdrawn Amount”), each DIP Lender (or an investment
advisor, manager, or beneficial owner for the account of such DIP
Lender, or an affiliated fund or trade counterparty designated by
such DIP Lender) (collectively, the “Additional Roll-Up Lenders”)
shall be deemed to have (x) converted and exchanged an aggregate
principal amount of Remaining First Lien Term Loans equal to the
lesser of (I) such Additional Roll-Up Lender’s Remaining First
Lien Term Loans on such date and (II) three times its Withdrawn
Amount on such Withdrawal Date (such lesser amount, such DIP
Lender’s “Roll-Up Amount”) for Roll-Up Loans and (y) funded an
amount of Roll-Up Loans equal to its Roll-Up Amount on such
Withdrawal Date, without constituting a novation, and satisfied
and discharged an aggregate principal amount of its Rolled-Up
First Lien Term Loans equal to its Roll-Up Amount.
(iii) On the terms set forth in the Syndication Procedures, upon
completion of the Syndication (as defined in the DIP Credit
Agreement) (1) each DIP Lender holding Roll-Up Loans on such
date (“Existing Roll-Up Lender”) shall bewere deemed to have
assigned a portion of its Roll-Up Loans ratably to each other DIP
Lender on such date (each such DIP Lender, a “Syndicate
Lender”), and each Syndicate Lender shall bewere deemed to have
ratably assumed an amount of Roll-Up Loans from each Existing
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Roll-Up Lender and (2) each Syndicate Lender on such date shall
bewere deemed to have assigned a portion of its Remaining First
Lien Term Loans to each Existing Roll-Up Lender and each
Existing Roll-Up Lender shall bewere deemed to have assumed a
portion of such Remaining First Lien Term Loans from each
Syndicate Lender such that each DIP Lender (including both
Existing Roll-Up Lenders and Syndicate Lenders) will holds the
amount of Roll-Up Loans as set forth set forth on Schedule 2.17 of
the DIP Credit Agreement and the Remaining First Lien Term
Loans will bewere reallocated and assigned accordingly.
(c) Interim Facility. Upon entry of this Interim Order, the
maximum amount of the New Money Commitments that will be disbursed to the
Borrowers shall be $25,000,000;
(ii) authorizing the DIP Borrowers and the DIP Guarantors to (a) enter
into and perform under that certain Senior Secured Super-Priority Term Loan
Debtor-In-Possession Credit Agreement dated on or around June 11, 2024, among the
DIP Borrowers, the lenders party thereto (collectively in such capacities,
the “DIP Lenders”), and Wilmington Savings Fund Society, FSB, as administrative agent,
and collateral agent (in such capacities, the “DIP Agent,” and, together with the DIP
Lenders, the “DIP Secured Parties”) (as the same may be amended, restated, amended
and restated, supplemented, waived, or otherwise modified from time to time, the “DIP
Credit Agreement”) and the other DIP Documents (as defined below) and (b) enter into
and perform under that certain Escrow Agreement (the “Escrow Agreement”), dated on
or around June 11, 2024, among the DIP Borrowers, the DIP Agent, and Wilmington
Savings Fund Society, FSB, as escrow agent (the “Escrow Agent”); and each of the
foregoing, together with thisthe Interim Order, thethis Final Order, and all agreements,
documents, and instruments delivered or executed in connection therewith, in each case
as may be amended, restated, amended and restated, supplemented, waived, or otherwise
modified from time to time in accordance with the terms thereof (including the fee letters
executed by the DIP Borrowers in connection with the DIP Facility and the Escrow
Agreement), and other guarantee and security documentation, collectively, the “DIP
Documents”), and to perform such other and further acts as may be required in
connection with the DIP Documents;
(iii) authorizing the Debtors to use the proceeds of the DIP Loans and
the Prepetition Collateral (as defined below), including Cash Collateral (as defined
below), (x) solely in accordance with the Approved DIP Budget (subject to any Permitted
Variance set forth herein and in the DIP Credit Agreement), (y) to effectuate the
exchange of First Lien Term Loans for Roll-Up Loans in accordance with the DIP Credit
Agreement, thisthe Interim Order, and thethis Final Order, and (z) to provide working
capital for, and for other general corporate purposes of, the Debtors and certain of the
Debtors’ subsidiaries, including for funding the Carve Out (as defined below) and for
payment of any Adequate Protection Payments (as defined below);
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(iv) subject to the Carve Out, granting adequate protection to the
Prepetition Secured Parties (as defined below) to the extent of any Diminution in Value
(as defined below) of their interests in the Prepetition Collateral (as defined below);
(v) subject to the Carve Out, and except as otherwise provided in
paragraph 39 of this InterimFinal Order, granting valid, enforceable, binding,
non-avoidable, and fully perfected first priority priming liens on and senior security
interests in substantially all of the property, assets, and other interests in property and
assets of the Debtors, whether such property is presently owned or after-acquired, and
each Debtors’ estate as created by section 541 of the Bankruptcy Code, of any kind or
nature whatsoever, real or personal, tangible, intangible, or mixed, now existing or
hereafter acquired or created, whether existing prior to or arising after the Petition Date
(as defined below), subject only to the (x) Carve Out (as defined below) and (y) other
valid, perfected and unavoidable liens, if any, existing as of the Petition Date that are
senior to the liens or security interests of the Prepetition Secured Parties as of the Petition
Date by operation of law or permitted by the Prepetition Documents and liens that are
perfected after the Petition Date to the extent permitted by section 546(b) of the
Bankruptcy Code (the “Prior Senior Liens”);
(vi) except as otherwise provided in paragraph 39 of this Final Order,
granting superpriority administrative expense claims against each of the Debtors’ estates
to the DIP Agent and the DIP Lenders with respect to the DIP Obligations (as defined
below) over any and all administrative expenses of any kind or nature subject and
subordinate only to the payment of the Carve Out on the terms and conditions set forth
herein and in the DIP Documents;
(vii) subject to entry of a Final Order (as defined below), waiving the
Debtors’ and the estates’ right to surcharge against the Prepetition Collateral or DIP
Collateral (each as defined below) pursuant to section 506(c) of the Bankruptcy Code;
(viii) subject to entry of a Final Order and to the extent set forth herein,
forproviding that the “equities of the case” exception under section 552(b) of the
Bankruptcy Code todoes not apply to such parties with respect to the proceeds, products,
offspring, or profits of any of the Prepetition Collateral or the DIP Collateral, as
applicable;
(ix) pursuant to Bankruptcy Rule 4001, holding an interima final
hearing (the “InterimFinal Hearing”) on the Motion before this Court to consider entry of
this InterimFinal Order, among other things, (1) authorizing the Debtors to, on an
interima final basis, borrow from the DIP Lenders a principal amount of $1280,000,000
in DIP Loans of which (I) $25,000,000 of New Money Loans will bewere made available
to the DIP Borrowers onupon entry of the date of this Interim Order, (II) $20,000,000 of
New Money Loans will bewere funded into an escrow account on (the date of
this“Escrow Account”) upon entry of the Interim Order and available to be drawn by the
DIP Borrowers andin accordance with the DIP Documents, (III) $75,000,000 of Roll-Up
Loans were deemed funded and converted from and exchanged for First Lien Term Loans
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upon entry of the Interim Order, and (IV) up to an additional $60,000,000 of Roll-Up
Loans shall be deemed funded and converted from and exchanged for First Lien Term
Loans upon the entry of this Interim Order, subject to, and in accordance with, this
InterimFinal Order, without any further action by the Debtors or any other party,
(2) authorizing the DIP Guarantors to guaranty the DIP Obligations, (3) authorizing the
Debtors’ use of Prepetition Collateral (including Cash Collateral), (4) granting the
adequate protection described in this InterimFinal Order, and (5) authorizing the Debtors
to execute and deliver the DIP Documents to which they are a party and to perform their
respective obligations thereunder and such other and further acts as may be necessary or
appropriate in connection therewith; and
(x) scheduling a final hearing (the “Final Hearing”) to consider the
relief requested in the Motion and the entry of a final order (the “Final Order”), and
approving the form of notice with respect to the Final Hearing; and
(xix) granting related relief.
This CourtThe interim heavring consideredon the Motion, the exhibits thereto, having
been held by this Court on June 11, 2024 (the “Interim Hearing”); and upon the record made by
the Debtors at the Interim Hearing, including the Motion (Docket No. 12), the Declaration of
John Bibb, Group Chief Executive Officer of Vyaire Medical, Inc., in Support of Chapter 11
Filing and First Day Motions [Docket No. 15] (the “First Day Declaration”), the Declaration of
Michael Schlappig in Support of the Motion for Entry of Interim and Final Orders (I)
Authorizing the Debtors to (A) Obtain Postpetition Financing and (B) Utilize Cash Collateral,
(II) Granting Liens and Superpriority Administrative Expense Claims, (III) Granting Adequate
Protection to Prepetition Secured Parties, (IV) Modifying the Automatic Stay, (V) Scheduling a
Final Hearing, and (VI) Granting Related [Docket No. 44] (the “Schlappig Declaration”), the
Declaration of Charles Braley in Support of the Motion for Entry of Interim and Final Orders (I)
Authorizing the Debtors to (A) Obtain Postpetition Financing and (B) Utilize Cash Collateral,
(II) Granting Liens and Superpriority Administrative Expense Claims, (III) Granting Adequate
Protection to Prepetition Secured Parties, (IV) Modifying the Automatic Stay, (V) Scheduling a
Final Hearing, and (VI) Granting Related [Docket No. 34] (the “Braley Declaration”), and the
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other evidence submitted or adduced and the arguments of counsel made at the Interim Hearing
held on June 11, 2024; and this Court having entered, after the Interim Hearing, on June 12,
2024, that certain Interim Order (I) Authorizing the Debtors to Obtain Postpetition Financing,
(II) Authorizing the Debtors to use Cash Collateral, (III) Granting Liens and Providing
Superpriority Administrative Expense Claims, (IV) Granting Adequate Protection, (V) Modifying
Automatic Stay, (VI) Scheduling a Final Hearing, and (VII) Granting Related Relief (Docket No.
103) (the “Interim Order”); and notice of the Motion and the InterimFinal Hearing having been
given in accordance with Bankruptcy Rules 2002, 4001(b), (c) and (d), and 9014; and this Court
having heard and resolved or overruled any objections, reservations of rights, or other statements
with respect to the relief requested in the Motion; and the Court having noted the appearances of
all parties in interest; and it appearing that approval of the interimfinal relief requested in the
Motion is necessary to avoid immediate and irreparable harm to the Debtors and their estates
pending the Final Hearing, and otherwise is fair and reasonable and in the best interests of the
Debtors, their estates, and all parties in interest, and is essential for the continued operation of
the Debtors’ businesses and the preservation of the value of the Debtors’ assets; and it appearing
that the Debtors’ entry into the DIP Credit Agreement and the other DIP Documents is a sound
and prudent exercise of the Debtors’ business judgment; and the Debtors having provided notice
of the Motion and the relief requested therein as set forth in the Motion; and after due
deliberation and consideration, and for good and sufficient cause appearing therefor;
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BASED UPON THE RECORD ESTABLISHED AT THE INTERIMFINAL HEARING,
THE COURT HEREBY MAKES THE FOLLOWING FINDINGS OF FACT AND
CONCLUSIONS OF LAW:3
A. Petition Date. On June 9, 2024 (the “Petition Date”), each of the Debtors filed a
voluntary petition under chapter 11 of the Bankruptcy Code in the United States Bankruptcy
Court for the District of Delaware commencing these Cases.
B. Debtors in Possession. The Debtors continue to manage and operate their
businesses and properties as debtors in possession pursuant to sections 1107(a) and 1108 of the
Bankruptcy Code. No trustee or examiner has been appointed in these Cases.
C. Jurisdiction and Venue. The Court has jurisdiction over the Motion, these Cases,
and the parties and property affected hereby pursuant to 28 U.S.C. §§ 157 and 1334. The Court’s
consideration of the Motion constitutes a core proceeding pursuant to 28 U.S.C. § 157(b)(2).
Venue for these Cases and proceedings on the Motion is proper pursuant to 28 U.S.C. §§ 1408
and 1409. This Court may enter a final order consistent with Article III of the United States
Constitution.
D. Committee. As of the date hereofOn June 26, 2024, the Office of the United
States Trustee for the District of Delaware (the “U.S. Trustee”) has not yet appointed an official
committee of unsecured creditors pursuant to section 1102 of the Bankruptcy Code (any such
committee, the “Committee”).
E. Notice. Notice of the Motion and the InterimFinal Hearing has been provided in
accordance with the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules, and no other
3
Findings of fact shall be construed as conclusions of law, and conclusions of law shall be construed as findings
of fact, pursuant to Bankruptcy Rule 7052.
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or further notice of the Motion with respect to the relief requested at the InterimFinal Hearing is
or shall be required. The interimfinal relief granted herein is necessary to avoid immediate and
irreparable harm to the Debtors and their estates pending the Final Hearing, for purposes of
Bankruptcy Rule 6003.
F. Debtors’ Stipulations. Subject only to the rights of parties in interest specifically
set forth in paragraph 12 of this InterimFinal Order (and subject to the limitations thereon
contained in such paragraph or otherwise in this InterimFinal Order), the Debtors stipulate and
agree that (collectively, paragraphs F(i) through (x) below are referred to herein as the “Debtors’
Stipulations”):
(i) First Lien Term Loans.
(a) The Prepetition First Lien Term Lenders (as defined below) provided
loans (the “First Lien Term Loans”) in a total aggregate principal amount outstanding as of the
Petition Date of $339,300,000 under that certain First Lien Credit Agreement dated as of April
16, 2018, by and among Vyaire Company (“Holdings”), the DIP Borrowers, each of the other
revolving lenders from time to time party thereto (collectively, the “Prepetition First Lien
Revolving Lenders”), each of the other term lenders from time to time party thereto (collectively,
the “Prepetition First Lien Term Lenders”), and Bank of America, N.A. as administrative agent
and collateral agent (in such capacities, the “Prepetition First Lien Term Loan Agent”, and
together with the Prepetition First Lien Revolving Lenders, the Prepetition First Lien Term
Lenders and the other Secured Parties (as defined in the Prepetition First Lien Credit
Agreement), the “Prepetition First Lien Term Loan Secured Parties”) (such credit agreement, as
amended, restated, amended and restated, supplemented, or otherwise modified from time to
time, the “Prepetition First Lien Credit Agreement”, and together with the other
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Loan Documents (as defined in the Prepetition First Lien Credit Agreement), the “Prepetition
First Lien Term Loan Documents”). The First Lien Credit Agreement and Prepetition First Lien
Loan Documents include a Revolving Credit Facility (as defined in the Prepetition First Lien
Credit Agreement) that matured on April 16, 2024.
(b) (1) As of the Petition Date, the Prepetition Loan Party Debtors (as defined
below) were jointly and severally indebted to the Prepetition First Lien Term Loan Secured
Parties pursuant to the Prepetition First Lien Term Loan Documents without objection, defense,
counterclaim, or offset of any kind, in the aggregate principal amount of not less than
$339,300,000 on account of First Lien Term Loans plus accrued and unpaid interest with respect
thereto and any additional fees, costs, premiums, expenses (including any attorneys’,
accountants’, consultants’, appraisers’, financial advisors’, and other professionals’ fees and
expenses), reimbursement obligations, indemnification obligations, guarantee obligations, other
contingent obligations, and other charges of whatever nature, whether or not contingent,
whenever arising, due, or owing, and all other Obligations (as defined in the Prepetition First
Lien Credit Agreement), in each case, owing under or in connection with the Prepetition First
Lien Term Loan Documents and (2) the Prepetition First Lien Revolving Lenders and the
Prepetition First Lien Term Loan Agent assert, subject to paragraph 39 of this Interim Order,
including, without limitation, the Debtors’, DIP Agent’s and DIP/First Lien Group’s respective
rights to contest such assertion, that, as of the Petition Date, the Prepetition Loan Party Debtors
were jointly and severally indebted to the Prepetition First Lien Revolving Lenders and the
Prepetition First Lien Term Loan Agent pursuant to the Prepetition First Lien Loan Documents
without objection, defense, counterclaim, or offset of any kind, in the aggregate amount of not
less than $1,3463,17962.200 as of April 5, 2024, on account of certain outstanding fees and
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certain fees and expenses owed to the Prepetition First Lien Revolving Lenders and
reimbursement obligations with respect to certain fees and expenses incurred by the Prepetition
First Lien Term Loan Agent’s legal counsel and financial advisor (collectively, the “Prepetition
First Lien Revolving Loan Obligations”), plus accrued and unpaid; provided that, for the
avoidance of doubt, no interest with respect, default intheresto and any, additional fees, costs,
premiums, expenses (including any attorneys’, financial advisors’, and other professionals’ fees
and expenses), reimbursement obligations, indemnification obligations, guarantee obligations,
other contingent obligations, and other charges of whatever nature, whether or not contingent,
whenever arising, due, or owing topenalties, or other costs shall accrue on the Prepetition First
Lien Revolving LendersLoan Obligations and the Prepetition First Lien TermRevolving Loan
AgentObligations shall not exceed $1,463,162.00 (the obligations described in the foregoing
subparagraph (b)(1) and (2), collectively, the “Prepetition First Lien Term Loan Obligations”).
(ii) First Lien Term Loan Collateral. In connection with the Prepetition First
Lien Credit Agreement, (x) certain Prepetition Loan Party Debtors entered into that certain First
Lien Security Agreement, dated as of April 16, 2018 (as amended, restated, amended and
restated, supplemented, or otherwise modified from time to time the “Prepetition First Lien Term
Loan Security Agreement”), by and between Holdings, Vyaire Medical, Inc., certain subsidiaries
identified therein as guarantors (including, as applicable, those subsidiaries that became
guarantors via a supplemental joinder thereto), and the Prepetition First Lien Term Loan Agent
and (y) Holdings entered into that certain First Lien Guaranty, dated as of April 16, 2018 (as
amended, restated, amended and restated, supplemented, or otherwise modified from time to
time, the “Prepetition First Lien Term Loan Guaranty Agreement” and, together with the
Prepetition First Lien Term Loan Security Agreement, the “Prepetition First Lien Term Loan
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Collateral Agreements”), by and between Holdings, certain subsidiaries of Holdings identified
therein as guarantors (including, as applicable, those subsidiaries that became guarantors via
supplemental joinder thereto), and the Prepetition First Lien Term Loan Agent. Pursuant to the
Prepetition First Lien Term Loan Collateral Agreements and the other Prepetition First Lien
Term Loan Documents, the Prepetition First Lien Term Loan Obligations are secured by valid,
binding, perfected, and enforceable first-priority security interests in and liens (the “First Lien
Term Loan Liens”) on the “Collateral” (the “Prepetition First Lien Term Loan Collateral”), as
such term is defined in the Prepetition First Lien Credit Agreement, pursuant to the Prepetition
First Lien Term Loan Documents. The Prepetition First Lien Term Loan Collateral consists of
substantially all of the assets of the Debtors that were Loan Parties (as defined in the Prepetition
First Lien Credit Agreement) under the Prepetition First Lien Term Loan Documents (the
“Prepetition Loan Party Debtors”), except as set forth in the Prepetition First Lien Credit
Agreement.
(iii) First Lien Notes.
(a) The Prepetition First Lien Noteholders provided notes (the “First Lien
Notes”) in a total aggregate principal amount outstanding as of the Petition Date of
€72,102,348.98 under that certain Note Purchase Agreement dated as of May 3, 2019, by and
among Holdings, the DIP Borrowers, each of the purchasers party thereto (collectively, the
“Prepetition First Lien Noteholders”), and Wilmington Trust, National Association as notes
agent and collateral agent (in such capacities, the “Prepetition First Lien Notes Agent”, and
together with the Prepetition First Lien Noteholders and the other Secured Parties (as defined in
the Prepetition First Lien Note Purchase Agreement), the “Prepetition First Lien Notes
Secured Parties” and, together with the Prepetition First Lien Term Loan Secured Parties, the
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“Prepetition First Lien Secured Parties”) (such note purchase agreement, as amended, restated,
amended and restated, supplemented, or otherwise modified from time to time, the “Prepetition
First Lien Note Purchase Agreement”, and together with the other “Note Documents” (as defined
in the Prepetition First Lien Note Purchase Agreement), the “Prepetition First Lien Note
Documents”).
(b) As of the Petition Date, the Prepetition Loan Party Debtors were jointly
and severally indebted to the Prepetition First Lien Notes Secured Parties pursuant to the
Prepetition First Lien Notes Documents without objection, defense, counterclaim, or offset of
any kind, in the aggregate principal amount of not less than €72,102,348.98 on account of First
Lien Notes plus accrued and unpaid interest with respect thereto and any additional fees, costs,
premiums, expenses (including any attorneys’, accountants’, consultants’, appraisers’, financial
advisors’, and other professionals’ fees and expenses), reimbursement obligations,
indemnification obligations, guarantee obligations, other contingent obligations, and other
charges of whatever nature, whether or not contingent, whenever arising, due, or owing, and all
other Obligations (as defined in the Prepetition First Lien Note Purchase Agreement), in each
case, owing under or in connection with the Prepetition First Lien Notes Documents
(collectively, the “Prepetition First Lien Notes Obligations” and, together with the Prepetition
First Lien Term Loan Obligations, the “Prepetition First Lien Obligations”).
(iv) First Lien Notes Collateral. In connection with the Prepetition First Lien
Note Purchase Agreement, (x) certain Prepetition Loan Party Debtors entered into that certain
Security Agreement, dated as of May 3, 2019 (as amended, restated, amended and restated,
supplemented, or otherwise modified from time to time the “Prepetition First Lien Notes
Security Agreement”), by and between Holdings, Vyaire Medical, Inc., certain subsidiaries
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identified therein as guarantors (including, as applicable, those subsidiaries that became
guarantors via a supplemental joinder thereto), and the Prepetition First Lien Notes Agent and (y)
Holdings entered into that certain Guaranty, dated as of May 3, 2019 (as amended, restated,
amended and restated, supplemented, or otherwise modified from time to time, the “Prepetition
First Lien Notes Guaranty Agreement” and, together with the Prepetition First Lien Notes
Security Agreement, the “Prepetition First Lien Notes Collateral Agreements”), by and between
Holdings, certain subsidiaries of Holdings identified therein as guarantors (including, as
applicable, those subsidiaries that became guarantors via a supplemental joinder thereto), and the
Prepetition First Lien Notes Agent. Pursuant to the Prepetition First Lien Notes Collateral
Agreements and the other Prepetition First Lien Notes Documents, the Prepetition First Lien
Notes Obligations are secured by valid, binding, perfected, and enforceable first-priority security
interests in and liens (the “First Lien Notes Liens”) on the “Collateral” (the “Prepetition First
Lien Notes Collateral”), as such term is defined in the Prepetition First Lien Note Purchase
Agreement, pursuant to the Prepetition First Lien Notes Documents. The Prepetition First Lien
Notes Collateral consists of substantially all of the assets of the Prepetition Loan Party Debtors,
except as set forth in the Prepetition First Lien Note Purchase Agreement.
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(v) Second Lien Term Loans.
(a) The Prepetition Second Lien Term Lenders (as defined below) provided
loans (the “Second Lien Term Loans”) in a total aggregate principal amount outstanding as of the
Petition Date of €106,178,070.76 under that certain Second Lien Credit Agreement dated as of
April 16, 2018, by and among Holdings, the DIP Borrowers, each of the other lenders from time
to time party thereto (collectively, the “Prepetition Second Lien Term Lenders”), Wilmington
Trust, National Association as administrative agent and collateral agent (in such capacities,
the “Prepetition Second Lien Term Loan Agent”, and together with the Prepetition First Lien
Term Loan Agent and the Prepetition First Lien Notes Agent, the “Prepetition Agents”, and the
Prepetition Second Lien Term Loan Agent, together with the Prepetition Second Lien Term
Lenders, and the other Secured Parties (as defined in the Prepetition Second Lien Credit
Agreement), the “Prepetition Second Lien Term Loan Secured Parties”, and together with the
Prepetition First Lien Term Loan Secured Parties and the Prepetition First Lien Notes Secured
Parties, the “Prepetition Secured Parties”) (such credit agreement, as amended, restated,
amended and restated, supplemented, or otherwise modified from time to time, the “Prepetition
Second Lien Credit Agreement”, and together with the other “Loan Documents” (as defined in
the Prepetition Second Lien Credit Agreement), the “Prepetition Second Lien Term Loan
Documents”, and together with the Prepetition First Lien Term Loan Documents and the
Prepetition First Lien Notes Documents, the “Prepetition Documents”).
(b) As of the Petition Date, the Prepetition Loan Party Debtors were jointly
and severally indebted to the Prepetition Second Lien Term Loan Secured Parties pursuant to the
Prepetition Second Lien Term Loan Documents without objection, defense, counterclaim, or
offset of any kind, in the aggregate principal amount of not less than €106,178,070.76 on account
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of Second Lien Term Loans plus accrued and unpaid interest with respect thereto and any
additional fees, costs, premiums, expenses (including any attorneys’, accountants’, financial
advisors’, and other professionals’ fees and expenses), reimbursement obligations,
indemnification obligations, guarantee obligations, other contingent obligations, and other
charges of whatever nature, whether or not contingent, whenever arising, due, or owing, and all
other Obligations (as defined in the Prepetition Second Lien Credit Agreement), in each case,
owing under or in connection with the Prepetition Second Lien Term Loan Documents
(collectively, the “Prepetition Second Lien Term Loan Obligations”, together with the
Prepetition First Lien Term Loan Obligations and the Prepetition First Lien Notes Obligations,
the “Prepetition Obligations”).
(vi) Second Lien Term Loan Collateral. In connection with the Prepetition
Second Lien Credit Agreement, (x) certain Prepetition Loan Party Debtors entered into that
certain Second Lien Security Agreement, dated as of April 16, 2018 (as amended, restated,
amended and restated, supplemented, or otherwise modified from time to time the “Prepetition
Second Lien Term Loan Security Agreement”), by and between Holdings, Vyaire Medical, Inc.,
certain subsidiaries identified therein as guarantors (including, as applicable, those subsidiaries
that became guarantors via a supplemental joinder thereto), and the Prepetition Second Lien
Term Loan Agent and (y) Holdings entered into that certain Second Lien Guaranty, dated as of
April 16, 2018 (as amended, restated, amended and restated, supplemented, or otherwise
modified from time to time, the “Prepetition Second Lien Term Loan Guaranty Agreement” and,
together with the Prepetition Second Lien Term Loan Security Agreement, the “Prepetition
Second Lien Term Loan Collateral Agreements”), by and between Holdings, certain subsidiaries
of Holdings identified therein as guarantors (including, as applicable, those subsidiaries that
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became guarantors via a supplemental joinder thereto), and the Prepetition Second Lien Term
Loan Agent. Pursuant to the Prepetition Second Lien Term Loan Collateral Agreements and the
other Prepetition Second Lien Term Loan Documents, the Prepetition Second Lien Term Loan
Obligations are secured by valid, binding, perfected, and enforceable second-priority security
interests in and liens (the “Second Lien Term Loan Liens”, together with the First Lien Term
Loan Liens and the First Lien Notes Liens, the “Prepetition Liens”) on the “Collateral” (the
“Prepetition Second Lien Term Loan Collateral”, and together with the Prepetition First Lien
Term Loan Collateral and the Prepetition First Lien Notes Collateral, the “Prepetition
Collateral”), as such term is defined in the Prepetition Second Lien Credit Agreement, pursuant
to the Prepetition Second Lien Term Loan Documents. The Prepetition Second Lien Term Loan
Collateral consists of substantially all of the assets of the Prepetition Loan Party Debtors, except
as set forth in the Prepetition Second Lien Credit Agreement.
(vii) Cash Collateral. Any and all of the Debtors’ cash, including any amounts
on deposit or maintained in any banking, checking, or other deposit accounts by the Debtors, any
amounts generated by the collection of accounts receivable or other disposition of the Prepetition
Collateral existing as of the Petition Date or deposited into the Debtors’ banking, checking, or
other deposit accounts after the Petition Date, and the proceeds of any of the foregoing is the
Prepetition Secured Parties’ cash collateral within the meaning of section 363(a) of the
Bankruptcy Code (the “Cash Collateral”).
(viii) Bank Accounts. The Debtors acknowledge and agree that as of the
Petition Date, none of the Debtors has either opened or maintains any bank accounts other than
the accounts listed in the exhibit attached to any order authorizing the Debtors to continue to use
the Debtors’ existing cash management system (the “Cash Management Order”).
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(ix) Validity, Perfection, and Priority of Prepetition Liens and Prepetition
Obligations. Subject to paragraph 39 of this Interim Order, eEach of the Debtors acknowledges
and agrees that, in each case as of the Petition Date: (A) the Prepetition Liens are valid, binding,
enforceable, non-avoidable, and properly perfected liens on and security interests in the
Prepetition Collateral; (B) the First Lien Term Loan Liens and the First Lien Notes Liens are
subject and subordinate only to Prior Senior Liens; (C) the Second Lien Term Loan Liens are
subject and subordinate only to Prior Senior Liens, the First Lien Term Loan Liens and the First
Lien Notes Liens; (D) the Prepetition Obligations constitute legal, valid, binding, and
non-avoidable obligations of the Prepetition Loan Party Debtors; (E) the Prepetition Liens
encumber all of the Prepetition Collateral subject to the priorities set forth in the Prepetition
Documents and the Prepetition Intercreditor Agreements (as defined below), as the same existed
on the Petition Date; (F) the Prepetition Liens were granted to or for the benefit of the Prepetition
Secured Parties for fair consideration and reasonably equivalent value and were granted
contemporaneously with, or covenanted to be provided as an inducement for, the making of the
loans and/or commitments and other financial accommodations secured thereby; (G) no offsets,
challenges, objections, defenses, claims, or counterclaims of any kind or nature to any of the
Prepetition Liens or Prepetition Obligations exist, and no portion of the Prepetition Liens or
Prepetition Obligations is subject to any challenge or defense including impairment, set-off, right
of recoupment, avoidance, attachment, disallowance, disgorgement, reduction,
recharacterization, recovery, subordination (whether equitable or otherwise), attack, offset,
defense, counterclaims, cross-claims, or “claim” (as defined in the Bankruptcy Code), pursuant
to the Bankruptcy Code or applicable nonbankruptcy law; and (H) the Debtors and their estates
have no claims, objections, challenges, causes of actions, recoupments, counterclaims,
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cross-claims, setoff rights, and/or choses in action, including “lender liability” causes of action
or avoidance claims under chapter 5 of the Bankruptcy Code, whether arising under applicable
state law or federal law (including any recharacterization, subordination, avoidance,
disgorgement, recovery, or other claims arising under or pursuant to sections 105, 510, or 542
through 553 of the Bankruptcy Code), against the Prepetition Agents, the Prepetition Secured
Parties, or any of their respective affiliates, agents, representatives, attorneys, advisors,
professionals, officers, directors, and employees arising out of, based upon, or related to their
loans under the Prepetition Documents, the Prepetition Obligations, or the Prepetition Liens.
(x) Prepetition Intercreditor Agreements. Pursuant to section 510 of the
Bankruptcy Code, any applicable intercreditor or subordination provisions contained in any of, or
entered into as permitted by and in accordance with, the Prepetition Documents, including that
certain (x) Equal Priority Intercreditor Agreement dated as of May 3, 2019, by and among
Holdings, the DIP Borrowers, the Prepetition First Lien Term Loan Agent, the Prepetition First
Lien Notes Agent, Wilmington Trust, National Association as the initial additional authorized
representative, and each additional authorized representative from time to time party thereto
(such intercreditor agreement, as amended, restated, amended and restated, supplemented, or
otherwise modified from time to time, the “Equal Priority Intercreditor Agreement”) and (y)
Junior Lien Intercreditor Agreement dated as of April 16, 2018 by and among the Prepetition
First Lien Term Loan Agent, the Prepetition First Lien Notes Agent, the Prepetition Second Lien
Term Loan Agent, and each additional representative from time to time party thereto (such
intercreditor agreement, as amended, restated, amended and restated, supplemented, or otherwise
modified from time to time, the “Junior Lien Intercreditor Agreement”, and together with the
Equal Priority Intercreditor Agreement, the “Prepetition Intercreditor Agreements”) shall (i)
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remain in full force and effect, and (iii) not be deemed to be amended, altered or modified by the
terms of this InterimFinal Order or the DIP Documents, in each case, unless expressly set forth
herein or therein.
G. Findings Regarding the DIP Facility and Use of Cash Collateral.
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(i) The Debtors have an immediate need to obtain the DIP Facility and to use
Cash Collateral (solely to the extent consistent with the Approved DIP Budget, subject to any
Permitted Variance set forth herein and in the DIP Credit Agreement) to, among other things,
(A) permit the orderly continuation of their businesses; (B) pay certain Adequate Protection
Payments; (C) pay the costs of administration of their estates and satisfy other working capital
and general corporate purposes of the Debtors and certain subsidiaries thereof; and (D) fund the
wind-down budget, subject to the terms of the Restructuring Support Agreement, to wind down
either certain, all, or substantially all of the Debtors’ operations in the event a sale of the
Debtors’ assets is not achievable within the terms, conditions, and/or milestones contemplated in
the Restructuring Support Agreement, the DIP Credit Agreement, the Bidding Procedures Order
and/or the Bidding Procedures.4 The DIP Facility will also reassure the Debtors’ and their
non-Debtor affiliates’ customers and employees that the Debtors will have access to additional
liquidity to meet their commitments during the Cases. The ability of the Debtors to obtain
sufficient working capital and liquidity through the incurrence of the new indebtedness for
borrowed money and other financial accommodations is vital to the preservation and
maintenance of the Debtors’ going concern value and successful reorganization. The Debtors
will not have sufficient sources of working capital and financing to operate their businesses in
the ordinary course of business throughout the Cases or to fund the wind-down budget as set
forth in this paragraph, subject to the Restructuring Support Agreement, without access to the
DIP Facility and authorized use of Cash Collateral, and subject to the Carve Out (defined below)
4
Unless otherwise specifically stated herein, the provisions of Bankruptcy Rule 9006(a) will apply in computing
any period of time prescribed or allowed herein. If the date on which a milestone or transaction may occur will
occur on a day that is not a Business Day, then such milestone or transaction will instead occur on the next
succeeding Business Day.
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as provided herein.
(ii) The Debtors and their estates will suffer immediate and irreparable harm if
immediate financing is not obtained and permission to use Cash Collateral is not granted. The
extensions of credit under the DIP Facility are fair and reasonable, reflect the Debtors’ exercise
of prudent business judgment consistent with their fiduciary duties.
(iii) The Debtors are unable to obtain financing on more favorable terms from
sources other than the DIP Lenders under the DIP Documents and are unable to obtain unsecured
credit allowable under section 503(b)(1) of the Bankruptcy Code as an administrative expense.
The Debtors also are unable to obtain secured credit allowable under sections 364(c)(1),
364(c)(2), and 364(c)(3) of the Bankruptcy Code for the purposes set forth in the DIP Documents
without the Debtors granting to the DIP Secured Parties the DIP Liens (as defined below) and the
DIP Superpriority Claims (as defined below) under the terms and conditions set forth in this
InterimFinal Order and the DIP Documents.
(iv) The DIP Facility has been negotiated in good faith and at arm’s length
among the Debtors and the DIP Secured Parties, and all of the Debtors’ obligations and
indebtedness arising under, in respect of, or in connection with the DIP Facility and the DIP
Documents, including, without limitation, all loans made to and guarantees issued by the Debtors
pursuant to the DIP Documents and all other obligations under the DIP Documents (collectively,
the “DIP Obligations”) shall be deemed to have been extended by the DIP Secured Parties in
good faith as that term is used in section 364(e) of the Bankruptcy Code and in express reliance
upon the protections offered by section 364(e) of the Bankruptcy Code. The DIP Obligations,
the DIP Liens, and the DIP Superpriority Claims shall be entitled to the full protection of section
364(e) of the Bankruptcy Code in the event that this InterimFinal Order or any provision hereof
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is vacated, reversed, or modified on appeal or otherwise, and any liens or claims granted to, or
payments made to, or payments made to, the DIP Agent or the DIP Lenders hereunder arising
prior to the effective date of any such vacatur, reversal, or modification of this InterimFinal
Order shall be governed in all respects by the original provisions of this InterimFinal Order,
including entitlement to all rights, remedies, privileges, and benefits granted herein.
(v) Adequate Protection. Each of the Prepetition Secured Parties are entitled,
pursuant to sections 105, 361, 362, and 363(e) of the Bankruptcy Code, to adequate protection of
their respective interests in the Prepetition Collateral, including Cash Collateral, for any
diminution in the value thereof, subject only to the rights of parties in interest specifically set
forth in paragraph 12 of this InterimFinal Order (and subject to the limitations thereon contained
in such paragraph or otherwise in this InterimFinal Order).
(vi) Sections 506(c) and 552(b). In light of the Prepetition Secured Parties’
agreement to subordinate their liens and superpriority claims to the DIP Obligations and the
Carve Out and to permit the use of their Cash Collateral as set forth herein, the Prepetition
Secured Parties are entitled to the rights and benefits of section 552(b) of the Bankruptcy Code
and, subject to and upon entry of the Final Order, (i) a waiver of any “equities of the case”
claims under section 552(b) of the Bankruptcy Code and (ii) a waiver of the provisions of section
506(c) of the Bankruptcy Code.
(vii) Consent by Required Lenders. Holders constituting Required Lenders (as
defined in the Prepetition First Lien Credit Agreement), Required Purchasers (as defined in the
Prepetition First Lien Note Purchase Agreement), and Required Lenders (as defined in the
Prepetition Second Lien Credit Agreement) have consented to, or are deemed to consent to,
conditioned upon the entry of this InterimFinal Order, the Debtors’ incurrence of the DIP
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Facility, and proposed use of Cash Collateral on the terms and conditions set forth in this
InterimFinal Order, including, without limitation, the terms of the adequate protection provided
for in this InterimFinal Order.
H. Good Cause Shown; Best Interest. Good cause has been shown for entry of this
InterimFinal Order, and entry of this InterimFinal Order is in the best interests of the Debtors’
respective estates and creditors as its implementation will, among other things, allow for the
continued operation of the Debtors’ existing business and enhance the Debtors’ prospects for a
successful reorganization. Absent granting the relief sought by this InterimFinal Order, the
Debtors’ estates will be immediately and irreparably harmed.
I. Notice. In accordance with Bankruptcy Rules 2002, 4001(b) and (c), and 9014,
and the Local Rules, notice of the InterimFinal Hearing and the emergency relief requested in the
Motion has been provided by the Debtors. Under the circumstances, the notice given by the
Debtors of the Motion, the relief requested herein, and of the InterimFinal Hearing complies with
Bankruptcy Rules 2002, 4001(b) and (c), and 9014 and applicable Local Rules.
J. Arm’s Length, Good Faith Negotiations. The terms of this InterimFinal Order
were negotiated in good faith and at arm’s length between the Debtors and the Prepetition
Secured Parties. The Prepetition Secured Parties have acted in good faith in respect of all
actions taken by them in connection with or related in any way to negotiating, implementing,
documenting, or obtaining requisite approvals of the Debtors’ incurrence of the DIP Facility and
the Debtors’ use of Cash Collateral, including in respect of all of the terms of this InterimFinal
Order, all documents related thereto, and all transactions contemplated by the foregoing.
Based upon the foregoing findings and conclusions, the Motion and the record before the
Court with respect to the Motion, and good and sufficient cause appearing therefor,
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IT IS HEREBY ORDERED THAT:
1. DIP Financing Approved. The Motion is granted on an interima final basis as set
forth herein, the DIP Facility is approved on an interima final basis, and the use of Cash
Collateral on an interima final basis is authorized, subject to the terms of this InterimFinal Order.
2. Objections Overruled. Any objections, reservations of rights, or other statements
with respect to entry of the Interimthis Final Order, to the extent not withdrawn or resolved, are
overruled on the merits. This InterimFinal Order shall become effective immediately upon its
entry.
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3. Authorization of the DIP Facility and the DIP Documents.
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(a) The DIP Borrowers and the DIP Guarantors are hereby immediately
authorized and empowered to enter into, and execute and deliver, the DIP Documents, including
the DIP Credit Agreement, and such additional documents, instruments, certificates and
agreements as may be reasonably required or requested by the DIP Secured Parties to implement
the terms or effectuate the purposes of this InterimFinal Order and the DIP Documents and to
effectuate the exchange of First Lien Term Loans for Roll-Up Loans. To the extent not entered
into as of the date hereof, the Debtors and the DIP Secured Parties shall negotiate the DIP
Documents in good faith, and in all respects such DIP Documents shall be, subject to the terms
of this Interim Order and the Final Order, consistent with the terms of the DIP Credit Agreement
and otherwise reasonably acceptable to the DIP Borrowers and the DIP Agent (acting at the
direction of the required lenders under and pursuant to the DIP Credit Agreement (the “Required
DIP Lenders”)) and the Required DIP Lenders. Upon entry of this Interim Order and until
execution and delivery of the DIP Credit Agreement and other DIP Documents required to be
delivered thereunder, the Debtors and the DIP Secured Parties shall be bound by (x) the terms
and conditions and other provisions set forth in the other executed DIP Documents (including the
fee letters executed in connection with the DIP Facility), with the same force and effect as if duly
executed and delivered to the DIP Agent by the Debtors, and (y) this InterimFinal Order, this
Final Order and the other executed DIP Documents (including the fee letters executed in
connection with the DIP Facility) shall govern and control the DIP Facility. Upon entry of this
Interim Order, the Interim Order, the DIP Credit Agreement, and other DIP Documents shall
govern and control the DIP Facility. The DIP Agent is hereby authorized to execute and enter
into its respective obligations under the DIP Facility Documents, subject to the terms and
conditions set forth therein and this InterimFinal Order. Upon execution and delivery thereof,
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the DIP Documents shall constitute valid and binding obligations of the Debtors enforceable in
accordance with their terms. To the extent there exists any conflict among the terms and
conditions of the DIP Documents and this InterimFinal Order, the terms and conditions of this
InterimFinal Order shall govern and control.
(b) Upon entry of this InterimFinal Order, the DIP Borrowers are hereby
authorized to borrow, and the DIP Guarantors are hereby authorized to guaranty, borrowings up
to an aggregate principal amount of $1280,000,000 of DIP Loans (inclusive of the Roll-Up
Loans), of which (i) $25,000,000 of New Money Loans will bewere made available to the DIP
Borrowers onupon entry of the date of this Interim Order, (ii) $20,000,000 of New Money Loans
will bewere funded into an escrow account on the date of thisthe Escrow Account upon entry of
the Interim Order and available to be drawn by the DIP Borrowers, and in accordance with the
DIP Documents, (iii) $75,000,000 of Roll-Up Loans were deemed funded and converted from
and exchanged for First Lien Term Loans upon entry of the Interim Order, and (iv) up to an
additional $60,000,000 of Roll-Up Loans shall be deemed funded and converted from and
exchanged for First Lien Term Loans upon entry of this InterimFinal Order, subject to and in
accordance with the Carve-Out and this InterimFinal Order, without any further action by the
Debtors or any other party.
(c) Upon the entry of this Interim Order, subject to the Carve-Out, without
any further action by the Debtors or any other party, the Debtors shall be authorized and deemed
to have effectuated the exchange of First Lien Term Loans for Roll-Up Loans, subject to the
occurrence of the Closing Date (as defined in the DIP Credit Agreement); provided that the
Roll-Up authorized upon entry of this Interim Order shall be final, subject only to the right of
parties in interest to seek a determination in accordance with paragraph 12 below that such
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Roll-Up resulted in the payment of an unsecured prepetition claim of the Prepetition Secured
Parties.
(dc) In accordance with the terms of this InterimFinal Order and the DIP
Documents, proceeds of the DIP Loans shall be used solely for the purposes permitted under the
DIP Documents and this InterimFinal Order, and in accordance with the Approved DIP Budget,
subject to the Carve Out and any Permitted Variance, as set forth in this InterimFinal Order and
the DIP Documents. Attached as Exhibit B heretoto the Interim Order and incorporated herein
by reference is a budget prepared by the Debtors and approved by the Required DIP Lenders in
accordance with section 6.20 of the DIP Credit Agreement (the “Initial DIP Budget”).
(ed) In furtherance of the foregoing and without further approval of this Court,
each Debtor is authorized, and the automatic stay imposed by section 362 of the Bankruptcy
Code is hereby lifted solely to the extent necessary to perform all acts and to make, execute, and
deliver all instruments and documents (including, without limitation, the DIP Credit Agreement,
any security and pledge agreement, and any mortgage to the extent contemplated thereby, or the
DIP Credit Agreement), and to pay all fees (including all amounts owed to the DIP Lenders and
the DIP Agent under the DIP Documents, the Escrow Agent under the Escrow Agreement, and
the Prepetition Agents under the Prepetition Documents) that may be reasonably required or
necessary for the Debtors’ performance of their obligations under the DIP Facility, including,
without limitation:
(1) the execution, delivery, and performance of the DIP Documents,
including, without limitation, the DIP Credit Agreement, any security and
pledge agreement, and any mortgage to the extent required thereby;
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(2) the execution, delivery, and performance of one or more amendments,
waivers, consents, or other modifications to and under the DIP Documents
(in each case in accordance with the terms of the applicable DIP
Documents and in such form as the Debtors, the DIP Agent, and the
Required DIP Lenders may reasonably agree), it being understood that no
further approval of the Court shall be required for amendments, waivers,
consents, or other modifications to and under the DIP Documents or the
DIP Obligations that are not material; provided, that, any such
non-material amendment or modification shall be provided to the U.S.
Trustee and counsel for the Committee to the extent one has been
appointed at such time;at least one (1) business day prior to such
non-material amendment being effective; provided, however, that any
material amendment or modification shall be subject to approval of this
Court.
(3) the non-refundable payment to each of and/or on behalf of the DIP
Secured Parties, as applicable, of the fees referred to in the DIP
Documents, including (x) all fees and other amounts owed to the DIP
Agent and the DIP Lenders and (y) all reasonable and documented costs
and expenses as may be due from time to time, including, without
limitation, the reasonable and documented fees and expenses of counsel
and other professionals retained as provided for in the DIP Documents and
this InterimFinal Order (in the case of (i) the DIP/First Lien Advisors and
the DIP Agent Advisors whether incurred before or after the Petition Date
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and (ii) any other party, solely incurred after the Petition Date) including,
for the avoidance of doubt, (a) Gibson, Dunn & Crutcher LLP (as
counsel), Rothschild & Co (as financial advisor), Pachulski Stang Ziehl &
Jones LLP (as local bankruptcy counsel), and any other foreign counsel
and other professionals necessary to represent the interests of the DIP
Lenders and the ad hoc group of Prepetition First Lien Term Lenders and
Prepetition First Lien Noteholders (the “DIP/First Lien Group”) in
connection with the Cases (collectively, the “DIP/First Lien Advisors”);
(b) ArentFox Schiff LLP (as counsel), and Morris James LLP (as local
bankruptcy counsel) to the DIP Agent (“DIP Agent Advisors”); (c) Haynes
and Boone, LLP (as counsel) and Ashby & Geddes, P.A. (as local counsel)
to the Prepetition First Lien Term Loan Agent; and (d) Seward & Kissel
LLP (as counsel) and local counsel to the Prepetition First Lien Notes
Agent; and one counsel to the DIP Agent and the DIP Lenders (which
shall be chosen by the Required DIP Lenders) in each local foreign
jurisdiction, which such fees and expenses shall not be subject to the
approval of the Court, nor shall any recipient of any such payment be
required to file with respect thereto any interim or final fee application
with the Court, provided that any fees and expenses of a professional shall
be subject to the provisions of paragraph 18 of this InterimFinal Order;
and
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(4) the performance of all other acts required under or in connection with the
DIP Documents, including, without limitation, pursuant to the Escrow
Agreement.
(fe) Upon entry of this Interim Order and sSubject to the Carve Out and the
rights of parties in interest specifically set forth in paragraph 12 of this InterimFinal Order (and
subject to the limitations thereon contained in such paragraph or otherwise in this InterimFinal
Order), such DIP Documents, the DIP Obligations, and the DIP Liens shall constitute valid,
binding, and non-avoidable obligations of the Debtors enforceable against each Debtor in
accordance with their respective terms and the terms of this InterimFinal Order for all purposes
during the Cases, any subsequently converted Case of any Debtor to a case under chapter 7 of the
Bankruptcy Code or after the dismissal of any Case. No obligation, payment, transfer, or grant
of security under the DIP Credit Agreement, the other DIP Documents, or this InterimFinal
Order shall be stayed, restrained, voidable, avoidable, or recoverable under the Bankruptcy Code
or under any applicable law (including, without limitation, under sections 502(d), 548, or 549 of
the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform
Fraudulent Conveyance Act, Uniform Voidable Transactions Act or similar statute or common
law), or subject to any defense, reduction, setoff, recoupment, or counterclaim. All payments or
proceeds remitted (a) to or on behalf of the DIP Agent on behalf of any DIP Secured Parties or
(b) to or on behalf of the Prepetition Secured Parties, in each case, pursuant to the DIP
Documents, the provisions of this InterimFinal Order, or any subsequent order of this Court shall
be received free and clear of any claim, charge, assessment, or other liability, including, without
limitation, any such claim or charge arising out of or based on, directly or indirectly, section
506(c) of the Bankruptcy Code or the “equities of the case” exception of section 552(b) of the
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Bankruptcy Code (and, solely in the case of waivers of rights under sections 506(c) of the
Bankruptcy Code and the “equities of the case” exception of section 552(b) of the Bankruptcy
Code, subject to the entry of the Final Order). For the avoidance of doubt, and notwithstanding
anything to the contrary in any Prepetition Document, DIP Document, any additional document,
instrument, certificate and/or agreement related to any of the foregoing, in no event shall any
property, proceeds, cash, cash equivalents, or otherwise placed or held in the eEscrow aAccount
established pursuant to the Escrow Agreement at any time be, or be deemed to be, property of
any of the Debtors or their affiliates or subsidiaries or any of the Debtors’ estates and the parties
to the Escrow Agreement have acknowledged and agreed to the foregoing. ; provided, however,
that any funds that the Debtors have actually drawn from the Escrow Account pursuant to
Section 4.02 of the DIP Credit Agreement, subject to the terms and conditions set forth in this
Final Order and the DIP Documents, shall constitute property of the Debtors’ estates only after
such funds have been actually drawn from the Escrow Account pursuant to Section 4.02 of the
DIP Credit Agreement; provided further, however, that notwithstanding anything to the contrary
set forth in Section 4.02 of the DIP Credit Agreement, this Final Order, or otherwise, (x) the
Debtors shall be required to provide a Withdrawal Notice (as defined in the DIP Credit
Agreement) no later than 12:00 p.m. on the date that is one Business Day prior to the proposed
Withdraw Date (as defined in the DIP Credit Agreement), and (y) there shall be no limitation on
the number of Withdrawal Notices that the Debtors may submit in any given week provided such
Withdrawal Notices comply with the DIP Credit Agreement, including, without limitation,
Section 4.02 of the DIP Credit Agreement.
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(gf) The DIP Guarantors are hereby authorized and directed to jointly,
severally, and unconditionally guarantee, and upon entry of this InterimFinal Order shall be
deemed to have guaranteed, in full, all of the DIP Obligations of the DIP Borrowers.
4. Budget and Variance Reporting.
(a) The Initial DIP Budget shallhad set forth, on a weekly basis, the Budgeted
Cash Receipts, Budgeted Disbursement Amounts, Budgeted Liquidity and Budgeted Borrower
Professional Fees (each as set forth and referenced in the Approved DIP Budget) for the period
commencing with the week that includes the Closing Date and shall bewas approved by, and
bewas in form and substance reasonably satisfactory to, the Required DIP Lenders (it being
acknowledged and agreed that the form of Initial DIP Budget set forth as Exhibit B hereto isto
the Interim Order was approved by and reasonably satisfactory to the Required DIP Lenders).
(b) On or before the fifth (5th) business day before the end of each Budget
Period (as defined below) beginning with the fourth full week following the Petition Date (or
more frequently if determined by the Debtors), the Debtors and/or the DIP Agent (at the direction
of the Required DIP Lenders) may request an updated budget, and in such case, the Debtors will
deliver to the DIP Agent, the DIP/First Lien Advisors, and counsel to the Prepetition First Lien
Term Loan Agent, and counsel to the Committee an updated Budget for the subsequent 13-week
period (a “Subsequent DIP Budget”), which shall be in form and substance satisfactory to the
Required DIP Lenders in their sole discretion (not to be unreasonably withheld); provided the
Debtors shall be limited to two (2) requests for an updated budget during the ninety (90) days
following the Petition Date; provided, further, that to the extent necessary as determined by the
Debtors’ business judgment, the Debtors may make more than two (2) such requests for an
updated budget during the ninety (90) days following the Petition Date solely with the consent of
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the Required DIP Lenders. The Initial DIP Budget or any Subsequent DIP Budget shall be
deemed to constitute the “Approved DIP Budget” for purposes of this InterimFinal Order with
the most recently delivered Budget constituting the “Approved DIP Budget” solely upon
approval by the Required DIP Lenders (which must be in writing (including from the DIP/First
Lien Advisors), email being sufficient), or which shall be deemed an Approved DIP Budget
absent objection by the Required DIP Lenders within tenfive (105) business days after delivery
of the Budget) in their sole discretion. In the event the conditions for the most recently delivered
Subsequent DIP Budget to constitute an “Approved DIP Budget” are not met as set forth herein,
the prior Approved DIP Budget shall remain in full force and effect and the Debtors shall be
required to work in good faith with the Required DIP Lenders to modify such Subsequent DIP
Budget until the Required DIP Lenders approve (which approval shall not be unreasonably
withheld) such Subsequent DIP Budget as an “Approved DIP Budget.” Each Approved Budget
delivered shall be accompanied by such supporting documentation as reasonably requested by
the Required DIP Lenders. Each Approved Budget shall be prepared in good faith based upon
assumptions believed to be reasonable at the time of preparation thereof. “Budget Period” means
the initial four-week period set forth in the Approved DIP Budget in effect at such time.
(c) Commencing on the Friday of the second full calendar week after the
Petition Date, Budget Variances (as defined below) shall be tested on each Friday on a two-week
basis (each such date, a “Testing Date”). Commencing after the second full week after the
Petition Date, on or before 5:00 p.m. (prevailing Eastern time) on each Friday after each full
calendar week ending on Friday, the Debtors shall deliver to the DIP Agent, the DIP/First Lien
Advisors, and counsel to the Prepetition First Lien Term Loan Agent, and counsel to the
Committee a budget variance report/reconciliation in form and substance reasonably satisfactory
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to the DIP/First Lien Group (the “Approved DIP Budget Variance Report”), setting forth in
detail (i) the Debtors’ actual disbursements (the “Actual Disbursements”), including, without
limitation, the sum of all such net line items under the headings “Total Operating
Disbursements”, “Total Non-Operating Receipts/(Disbursements)” and “Total Restructuring
Receipts/(Disbursements)” (as set forth in the Approved DIP Budget) for the week period and
the two-week period if ending on the applicable Testing Date; (ii) the Debtors’ actual ordinary
course receipts that are accounted for as “revenue” under GAAP (as applied by the Debtors in
the ordinary course of business consistent with past practice) (the “Actual Receipts”), including
the line item under the heading “Total Operating Receipts” in the Approved Budget and
excluding, for the avoidance of doubt, any intercompany transactions or asset sales outside the
ordinary course of business, on an aggregate basis during the two-week period ending on the
applicable Testing Date; (iii) a comparison (whether positive or negative, in dollars and
expressed as a percentage) of the Actual Receipts and the Actual Disbursements for the week
and two-week period ending on the Testing Date to the amount of Debtors’ projected cash
receipts and disbursements, in each case, on an aggregate basis, set forth in the Approved DIP
Budget with respect to such week or two-week period ending on the applicable Testing Date; (iv)
as to each variance contained in the Approved DIP Budget Variance Report and required to be
tested pursuant to clause (c) above, an indication as to whether such variance is temporary or
permanent and an analysis and explanation in reasonable detail for any variance, including,
without limitation, for any variance in excess of 5%; (v) only in the event that a Subsequent DIP
Budget has been requested during the two-week period ending on the applicable Testing Period,
a weekly roll forward of the Debtors’ cash forecast (both domestic and international); and (vi) a
cash balance for the Debtors by country. Commencing after the first full week after the entry of
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this Final Order the (x) Debtors’ financial advisors shall coordinate with the Committee’s
proposed financial advisors, and (y) Debtors’ counsel shall coordinate with the Committee’s
proposed counsel, to hold weekly calls to discuss, among other things, the financial performance
of the Company, including any variance and liquidity reporting, the sale process, the
investigation, and the general administration of the Chapter 11 Cases.
(d) The Debtors shall not permit: (i) for the rolling two-week period ending on
any Testing Date, the Debtors’ Total Operating Disbursements (in the aggregate) to be more than
110% (on a cumulative basis taking into account the variance for any prior Budget Period) of the
projected disbursements (in the aggregate) as set forth in the Approved DIP Budgets with respect
to such period; and (ii) for the rolling two-week period ending on any Testing Date, the Debtors’
Actual Receipts (in the aggregate) to be less than 85% (on a cumulative basis taking into account
the variance for any prior Budget Period) of the projected receipts (in the aggregate) as set forth
in the Approved DIP Budgets with respect to such period (the “Budget Variances”; all references
in this InterimFinal Order and the DIP Documents to “Approved DIP Budget” shall mean the
Approved DIP Budget as it is subject to the Budget Variances). Commencing with the first full
calendar week after the Petition Date, the Debtors shall maintain Liquidity (as defined in the DIP
Credit Agreement) of not less than $2,500,000 as of the last business day of each calendar week,
pro forma of any funds that the Debtors have drawn from the Escrow Account. For purposes of
Budget Variances testing, (i) the Debtors shall receive credit in subsequent Budget Periods for
any overperformance on either receipts or disbursements for the Budget Period prior thereto and
(ii) the fees and expenses of Professional Persons and disbursements made in connection with
the administration of the Debtors’ chapter 11 cases and other non-operating expenses shall be
excluded.
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5. Access to Records. The Debtors shall provide the DIP/First Lien Advisors and
the Committee’s advisors with all reporting and other information required to be provided to the
DIP Agent under the DIP Documents. In addition to, and without limiting, whatever rights to
access the DIP Secured Parties have under the DIP Documents, upon reasonable notice to
counsel to the Debtors (email being sufficient), at reasonable times during normal business
hours, the Debtors shall permit representatives, agents, and employees of the DIP Secured Parties
and the Committee to have reasonable access to (i) inspect the Debtors’ assets, and (ii)
reasonably requested information (including historical information and the Debtors’ books and
records) and personnel, including regularly scheduled meetings as mutually agreed with senior
management of the Debtors and other company advisors (during normal business hours), and the
DIP Secured Parties and the Committee shall be provided with access to all information they
shall reasonably request, excluding any information for which confidentiality is owed to third
parties, information subject to attorney client or similar privilege, or where such disclosure
would not be permitted by any applicable requirements of law.
6. DIP Superpriority Claims. Subject to, and subordinate in all respects to, the
Carve Out, pursuant to section 364(c)(1) of the Bankruptcy Code, all of the DIP Obligations shall
constitute allowed superpriority administrative expense claims against each of the Debtors’
estates (the “DIP Superpriority Claims”) (without the need to file any proof of claim) to the
extent set forth in the Bankruptcy Code, with priority over any and all administrative expenses,
adequate protection claims, diminution claims, and all other claims against the Debtors, now
existing or hereafter arising, of any kind whatsoever, including, without limitation, all
administrative expenses of the kind specified in sections 503(b) and 507(b) of the Bankruptcy
Code, and over any and all administrative expenses or other claims arising under sections 105,
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326, 327, 328, 330, 331, 361, 362, 364, 365, 503(b), 506(c), 507(a), 507(b), 726, 1113, or 1114
of the Bankruptcy Code or otherwise, which allowed claims shall for the purposes of
section 1129(a)(9)(A) of the Bankruptcy Code be considered administrative expenses allowed
under section 503(b) of the Bankruptcy Code and which shall be payable from all prepetition and
postpetition property of the Debtors and all proceeds thereof, including, without limitation, the
DIP Collateral and including, without limitation, subject to entry of the Final Order, any
proceeds or property recovered in connection with the pursuit of claims or causes of action
arising under chapter 5 of the Bankruptcy Code, if any (the “Avoidance Actions”), subject only
to the payment of the Carve Out; provided that the DIP Lenders shall use commercially
reasonable efforts to first seek recovery from DIP Collateral other than proceeds of Avoidance
Actions, commercial tort claims, claims against directors and officers, and any other claims
under the Debtors’ insurance policies to the extent such claims constituted Previously
Unencumbered Property, or any proceeds or product of the foregoing (collectively, the
“Unencumbered Claims”) before seeking recovery from proceeds of such Unencumbered Claims
with respect to such DIP Superpriority Claims. Except as set forth in this Interim Order or the
Final Order, no other superpriority claims shall be granted or allowed in these Cases.
7. DIP Liens. As security for the DIP Obligations, effective and perfected upon the
date of this InterimFinal Order, and without the necessity of the execution, recordation of filings
by the Debtors of mortgages, security agreements, control agreements, pledge agreements,
financing statements, or other similar documents, or the possession or control by the DIP Agent
or any DIP Lender of, or over, any DIP Collateral (as defined below), the following security
interests and liens are hereby granted by the Debtors to the DIP Agent, for the benefit of the DIP
Secured Parties (all property identified in clause (a) and (b) below being collectively referred to
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as the “DIP Collateral”), subject only to (x) Prior Senior Liens, (y) the Excluded PropertyAssets
(as defined in the DIP Credit Agreement), and (z) the Carve Out (all such liens and security
interests granted to the DIP Agent, for the benefit of the DIP Lenders, pursuant to this
InterimFinal Order and the DIP Documents, the “DIP Liens”):
(a) First Priority Lien On Any Unencumbered Property. Subject only to the
Carve Out, pursuant to section 364(c)(2) of the Bankruptcy Code, a valid, binding, continuing,
enforceable, fully-perfected, non-avoidable, automatically, and properly perfected first priority
senior security interest in and lien upon all property of the Debtors, whether existing on the
Petition Date or thereafter acquired, that, on or as of the Petition Date is not subject to valid,
perfected, and non-avoidable liens (or perfected after the Petition Date to the extent permitted by
section 546(b) of the Bankruptcy Code) including, without limitation (in each case, to the extent
not subject to valid, perfected, and non-avoidable liens), a 100% equity pledge of all first-tier
foreign subsidiaries and all unencumbered assets of the Debtors; all prepetition property and
post-petition property of the Debtors’ estates, and the proceeds, products, rents and profits
thereof, whether arising from section 552(b) of the Bankruptcy Code or otherwise, including,
without limitation, unencumbered cash, if any, (and any investment of such cash) of the Debtors
(whether maintained with the DIP Agent or otherwise); all equipment, all goods, all accounts,
cash, payment intangibles, bank accounts and other deposit or securities accounts of the Debtors
(including any accounts opened prior to, on, or after the Petition Date to the fullest extent
permitted under applicable law); all insurance policies and proceeds thereof, equity interests,
instruments, intercompany claims, accounts receivable, other rights to payment, all general
intangibles, all contracts and contract rights, securities, investment property, letters of credit and
letter of credit rights, chattel paper, all interest rate hedging agreements of the Debtors; all owned
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real estate, real property leaseholds and fixtures of the Debtors; patents, copyrights, trademarks,
trade names, rights under license agreements and other intellectual property of the Debtors; all
commercial tort claims of the Debtors; and all claims and causes of action (including causes of
action under section 549 of the Bankruptcy Code, claims arising on account of transfers of value
from a Debtor to (x) another Debtor and (y) a non-Debtor affiliate incurred on or following the
Petition Date), and any and all proceeds, products, rents, and profits of the foregoing, all
products and proceeds of the foregoing and, subject to entry of the Final Order, all proceeds and
property recovered in respect of Avoidance Actions (collectively, the “Previously Unencumbered
Property”); provided, for the avoidance of doubt, and notwithstanding anything to the contrary
contained herein, to the extent a lien cannot attach to any of the foregoing pursuant to applicable
law, the liens granted pursuant to this InterimFinal Order shall attach to the Debtors’ economic
rights, including, without limitation, any and all proceeds of the foregoing.; provided, further,
that the DIP Lenders shall use commercially reasonable efforts to first seek recovery from DIP
Collateral other than from proceeds of Unencumbered Claims before seeking recovery from
proceeds of Unencumbered Claims with respect to such DIP Liens.
(b) Liens Priming the Prepetition Liens. Subject only to the Carve Out and
Prior Senior Liens, pursuant to section 364(d)(1) of the Bankruptcy Code, a valid, binding,
continuing, enforceable, fully-perfected first priority senior priming security interest in and lien
upon all property of the Debtors that was subject to the Prepetition Liens, including, without
limitation, the Prepetition Collateral and Cash Collateral; provided, for the avoidance of doubt,
and notwithstanding anything to the contrary contained herein, to the extent a lien cannot attach
to any of the foregoing pursuant to applicable law, the liens granted pursuant to this InterimFinal
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Order shall attach to the Debtors’ economic rights, including, without limitation, any and all
proceeds of the foregoing.
(c) Liens Junior to Certain Other Liens. Subject only to the Carve Out,
pursuant to section 364(c)(3) of the Bankruptcy Code, a valid, binding, continuing, enforceable,
fully perfected security interest in and lien upon all prepetition and post-petition property of the
Debtors immediately junior to the Prior Senior Liens.
8. Adequate Protection for the Prepetition First Lien Term Loan Secured Parties and
the Prepetition First Lien Notes Secured Parties. Subject only to the Carve Out and the rights of
parties in interest specifically set forth in paragraph 12 of this InterimFinal Order (and subject to
the limitations thereon contained in such paragraph or otherwise in this InterimFinal Order), and
the terms of this InterimFinal Order, pursuant to sections 361, 363(e), and 364 of the Bankruptcy
Code, and in consideration of the stipulations and consents set forth herein, as adequate
protection of their interests in the Prepetition First Lien Term Loan Collateral and the Prepetition
First Lien Notes Collateral (in each case, including Cash Collateral), as applicable, for any
diminution in value of such interests (each such diminution, a “Diminution in Value”), resulting
from, among other things, the imposition of the priming DIP Liens on the Prepetition First Lien
Term Loan Collateral and the Prepetition First Lien Notes Collateral, the Carve Out, the
Debtors’ use of the Prepetition First Lien Term Loan Collateral and the Prepetition First Lien
Notes Collateral (in each case, including Cash Collateral), and the imposition of the automatic
stay, the Prepetition First Lien Term Loan Agent, for the benefit of itself and the Prepetition First
Lien Term Loan Secured Parties and the Prepetition First Lien Notes Agent, for the benefit of
itself and the Prepetition First Lien Notes Secured Parties, are hereby granted the following
(collectively, the “First Lien Adequate Protection Obligations”):
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(a) First Lien Adequate Protection Liens. As security for any Diminution in
Value, additional and replacement, valid, binding, enforceable, non-non-avoidable, and effective
and automatically perfected postpetition security interests in and liens as of the date of this
InterimFinal Order (together, the “First Lien Adequate Protection Liens”), without the necessity
of the execution by the Debtors (or recordation or other filing), of security agreements, control
agreements, pledge agreements, financing statements, mortgages, or other similar documents, on
all DIP Collateral and, upon entry of the Final Order, all proceeds or property recovered from
Avoidance Actions; provided that the Prepetition First Lien Term Loan Secured Parties and the
Prepetition First Lien Notes Secured Parties shall use commercially reasonable efforts to first
seek recovery from DIP Collateral other than proceeds of Unencumbered Claims before seeking
recovery from proceeds of Avoidance Actions with respect to such First Lien Adequate
Protection Liens. Subject to the terms of this InterimFinal Order, the First Lien Adequate
Protection Liens shall be subordinate only to the (A) Carve Out, (B) the DIP Liens, and (C) Prior
Senior Liens. The First Lien Adequate Protection Liens shall otherwise be senior to all other
security interests in, liens on, or claims against any of the DIP Collateral (including, for the
avoidance of doubt, any lien or security interest that is avoided and preserved for the benefit of
the Debtors and their estates under section 551 of the Bankruptcy Code). To the extent that any
of the First Lien Term Loan Liens and/or the First Lien Note Liens are subject of a successful
Challenge pursuant to the terms of this Final Order, any First Lien Adequate Protection
Obligations may be proportionately reduced.
(b) First Lien Adequate Protection Superpriority Claims. As further adequate
protection, and to the extent provided by sections 503(b), 507(a), and 507(b) of the Bankruptcy
Code, allowed administrative expense claims in each of the Cases ahead of and senior to any and
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all other administrative expense claims in such Cases to the extent of any postpetition
Diminution in Value (the “First Lien Adequate Protection Superpriority Claims”), but junior to
the Carve Out and the DIP Superpriority Claims; provided, that the Prepetition First Lien Term
Loan Secured Parties and the Prepetition First Lien Notes Secured Parties shall use commercially
reasonable efforts to first seek recovery from DIP Collateral other than proceeds of
Unencumbered Claims before seeking recovery from proceeds of Unencumbered Claims with
respect to such First Lien Adequate Protection Superpriority Claims. Subject to the Carve Out
and the DIP Superpriority Claims in all respects, and to the extent set forth in the Bankruptcy
Code, the First Lien Adequate Protection Superpriority Claims will not be junior to any claims
and shall have priority over all administrative expense claims against each of the Debtors, now
existing or hereafter arising, of any kind or nature whatsoever, including, without limitation,
administrative expense claims of the kinds specified in or ordered pursuant to sections 105, 326,
328, 330, 331, 365, 503(a), 503(b), 506(c) (subject to entry of the Final Order), 507(a), 507(b),
546(d), 726, 1113, and 1114 of the Bankruptcy Code.
(c) First Lien Adequate Protection Payments. As further adequate protection,
the Debtors are authorized and directed to pay, in accordance with the terms of paragraph 18 of
this InterimFinal Order, all reasonable and documented fees and expenses (the “First Lien
Adequate Protection Fees”), in the case of (i) the DIP/First Lien Advisors and DIP Agent
Advisors whether incurred before or after the Petition Date and (ii) any other party, solely
incurred after the Petition Date, to the extent not duplicative of any fees and/or expenses paid
pursuant to paragraph 3(e)(3) hereof, including all reasonable and documented fees and expenses
of counsel and other professionals retained as provided for in the DIP Documents and this
InterimFinal Order, including, for the avoidance of doubt, of (i) the DIP/First Lien Advisors,
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including, without limitation, Gibson, Dunn & Crutcher LLP (as counsel), Rothschild & Co (as
financial advisor), Pachulski Stang Ziehl & Jones LLP (as local bankruptcy counsel), and any
other foreign counsel and other professionals necessary to represent the interests of the DIP
Lenders and the ad hoc group of Prepetition First Lien Term Lenders and Prepetition First Lien
Noteholders, (ii) the DIP Agent Advisors, including, without limitation, ArentFox Schiff LLP
and Morris James LLP as counsel to the DIP Agent, (iii) Haynes and Boone, LLP and Ashby &
Geddes, P.A. as counsel to the Prepetition First Lien Term Loan Agent, and (iv) Seward &
Kissel LLP and local counsel as counsel to the Prepetition First Lien Notes Agent (all payments
referenced in this sentence, collectively, the “First Lien Adequate Protection Payments”). None
of the First Lien Adequate Protection Fees shall be subject to separate approval by this Court,
and no recipient of any such payment shall be required to file any interim or final fee application
with respect thereto or otherwise seek the Court’s approval of any such payments.
(d) Right to Seek Additional Adequate Protection. This InterimFinal Order is
without prejudice to, and does not constitute a waiver of, expressly or implicitly, the rights of the
Prepetition First Lien Term Loan Secured Parties or the Prepetition First Lien Notes Secured
Parties to request further or alternative forms of adequate protection at any time or the rights of
the Debtors or any other party, including the Committee, to contest such request. Nothing herein
shall impair or modify the application of section 507(b) of the Bankruptcy Code in the event that
the adequate protection provided to the Prepetition First Lien Term Loan Secured Parties or the
Prepetition First Lien Notes Secured Parties is insufficient to compensate for any Diminution in
Value of their interests in the Prepetition First Lien Term Loan Collateral and the Prepetition
First Lien Notes Collateral during the Cases. Nothing contained herein shall be deemed a
finding by the Court, or an acknowledgment by any of the Prepetition First Lien Term Loan
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Secured Parties or the Prepetition First Lien Notes Secured Parties that the adequate protection
granted herein does in fact adequately protect any of the Prepetition First Lien Term Loan
Secured Parties or the Prepetition First Lien Notes Secured Parties against any Diminution in
Value of their respective interests in the Prepetition First Lien Term Loan Collateral and the
Prepetition First Lien Notes Collateral (in each case, including the Cash Collateral).
(e) Other Covenants. The Debtors shall maintain their cash management
arrangements in a manner consistent with the Cash Management Order approving the Debtors’
cash management motion. The Debtors’ failure to comply with the covenants contained in the
DIP Credit Agreement regarding conduct of business, including, without limitation, preservation
of rights, qualifications, licenses, permits, privileges, franchises, governmental authorizations
and intellectual property rights material to the conduct of their business and the maintenance of
properties and insurance shall be an Event of Default.
(f) Reporting Requirements. As additional adequate protection to the
Prepetition First Lien Term Loan Secured Parties and the Prepetition First Lien Notes Secured
Parties, the Debtors shall comply with all reporting requirements set forth in the DIP Credit
Agreement. The Committee shall also be entitled to the same reporting requirements set forth in
the DIP Credit Agreement as provided to the Prepetition First Lien Term Loan Secured Parties
and the Prepetition First Lien Notes Secured Parties.
(g) Miscellaneous. Except for (i) the Carve Out; (ii) the rights of parties in
interest specifically set forth in paragraph 12 of this InterimFinal Order (and subject to the
limitations thereon contained in such paragraph or otherwise in this InterimFinal Order); and
(iii) as otherwise provided in paragraphs 6 and 7, the First Lien Adequate Protection Liens and
First Lien Adequate Protection Superpriority Claims granted to the Prepetition First Lien Term
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Loan Secured Parties and the Prepetition First Lien Notes Secured Parties pursuant to paragraph
8 of this InterimFinal Order shall not be subject, junior, or pari passu, to any lien or security
interest that is avoided and preserved for the benefit of the Debtors’ estates under the Bankruptcy
Code, including, without limitation, pursuant to section 551 of the Bankruptcy Code or
otherwise, and shall not be subordinated to or made pari passu with any lien, security interest or
administrative claim under the Bankruptcy Code, including, without limitation, pursuant to
section 364 of the Bankruptcy Code or otherwise.
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9. Adequate Protection for the Prepetition Second Lien Term Loan Secured Parties.
Subject only to (i) the Carve Out, and the rights of parties in interest specifically set forth in
paragraph 12 of this InterimFinal Order (and subject to the limitations thereon contained in such
paragraph or otherwise in this InterimFinal Order), and (ii) paragraph 9(c) below, the First Lien
Adequate Protection Obligations, and the terms of this InterimFinal Order, pursuant to sections
361, 363(e), and 364 of the Bankruptcy Code, and in consideration of the stipulations and
consents set forth herein, as adequate protection of their interests in the Prepetition Second Lien
Term Loan Collateral (including Cash Collateral), as applicable, for any Diminution in Value,
resulting from, among other things, the imposition of the priming DIP Liens on the Prepetition
Second Lien Term Loan Collateral, the Carve Out, the Debtors’ use of the Prepetition Second
Lien Term Loan Collateral (in each case, including Cash Collateral), and the imposition of the
automatic stay, the Prepetition Second Lien Term Loan Agent, for the benefit of itself and the
Prepetition Second Lien Term Loan Secured Parties, is hereby granted the following
(collectively, the “Second Lien Adequate Protection Obligations”, and together with the First
Lien Adequate Protection Obligations, the “Adequate Protection Obligations”):
(a) Second Lien Adequate Protection Liens. As security for any Diminution
in Value, additional and replacement, valid, binding, enforceable, non-avoidable, and effective
and automatically perfected postpetition security interests in and liens as of the date of this
InterimFinal Order (together, the “Second Lien Adequate Protection Liens”, and together with
the First Lien Adequate Protection Liens, the “Adequate Protection Liens”), without the
necessity of the execution by the Debtors (or recordation or other filing), of security agreements,
control agreements, pledge agreements, financing statements, mortgages, or other similar
documents, on all DIP Collateral and, upon entry of the Final Order, all proceeds or property
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recovered from Avoidance Actions; provided that the Prepetition Second Lien Term Loan
Secured Parties shall use commercially reasonable efforts to first seek recovery from DIP
Collateral other than proceeds of Avoidance Actions before seeking recovery from proceeds of
Avoidance Actions with respect to such Second Lien Adequate Protection Liens. Subject to the
terms of this InterimFinal Order, the Second Lien Adequate Protection Liens shall be subordinate
only to the (A) Carve Out, (B) the DIP Liens, (C) Prior Senior Liens, (D) the First Lien Term
Loan Liens, (E) the First Lien Notes Liens, and (F) the First Lien Adequate Protection Liens.
The Second Lien Adequate Protection Liens shall otherwise be senior to all other security
interests in, liens on, or claims against any of the DIP Collateral (including, for the avoidance of
doubt, any lien or security interest that is avoided and preserved for the benefit of the Debtors
and their estates under section 551 of the Bankruptcy Code). To the extent that any of the
Second Lien Term Loan Liens are subject of a successful Challenge pursuant to the terms of this
Final Order, any Second Lien Adequate Protection Obligations may be proportionately reduced.
(b) Second Lien Adequate Protection Superpriority Claims. As further
adequate protection, and to the extent provided by sections 503(b), 507(a), and 507(b) of the
Bankruptcy Code, allowed administrative expense claims in each of the Cases ahead of and
senior to any and all other administrative expense claims in such Cases to the extent of any
postpetition Diminution in Value (the “Second Lien Adequate Protection Superpriority Claims”,
and together with the First Lien Adequate Protection Superpriority Claims, the “Adequate
Protection Superpriority Claims”), but junior to the Carve Out, the DIP Superpriority Claims,
and the First Lien Adequate Protection Superpriority Claims; provided, that the Prepetition
Second Lien Term Loan Secured Parties shall use commercially reasonable efforts to first seek
recovery from DIP Collateral other than proceeds of Unencumbered Claims before seeking
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recovery from proceeds of Unencumbered Claims with respect to such Second Lien Adequate
Protection Superpriority Claims. Subject to the Carve Out, the DIP Superpriority Claims, and
the First Lien Adequate Protection Superpriority Claims in all respects, and to the extent set forth
in the Bankruptcy Code, the Second Lien Adequate Protection Superpriority Claims will not be
junior to any claims and shall have priority over all administrative expense claims against each
of the Debtors, now existing or hereafter arising, of any kind or nature whatsoever, including,
without limitation, administrative expense claims of the kinds specified in or ordered pursuant to
sections 105, 326, 328, 330, 331, 365, 503(a), 503(b), 506(c) (subject to entry of the Final
Order), 507(a), 507(b), 546(d), 726, 1113, and 1114 of the Bankruptcy Code.
(c) Second Lien Adequate Protection Payments. As further adequate
protection and solely to the extent not yet paid by the Debtors pursuant to the Interim Order, the
Debtors are authorized and directed to pay, in accordance with the terms of paragraph 18 of this
InterimFinal Order, all reasonable and documented fees and expenses up to $100,000 (the
“Second Lien Adequate Protection Fees”), to the extent not duplicative of any fees and/or
expenses paid pursuant to paragraph 3(e)(3) hereof or the Interim Order, of counsel to the
Prepetition Second Lien Term Lenders. None of the Second Lien Adequate Protection Fees shall
be subject to separate approval by this Court, and no recipient of any such payment shall be
required to file any interim or final fee application with respect thereto or otherwise seek the
Court’s approval of any such payments.
10. Carve Out.
(a) Carve Out. As used in this InterimFinal Order, the “Carve Out” means the
sum of (i) all fees required to be paid to the Clerk of the Court and to the Office of the United
States Trustee under section 1930(a) of title 28 of the United States Code plus interest at the
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statutory rate (without regard to the notice set forth in (iii) below); (ii) all reasonable fees and
expenses up to $50,000 incurred by a trustee under section 726(b) of the Bankruptcy Code
(without regard to the notice set forth in (iii) below); (iii) to the extent allowed at any time,
whether by interim order, procedural order, or otherwise, all unpaid fees and expenses (the
“Allowed Professional Fees”) incurred by persons or firms retained by the Debtors pursuant to
section 327, 328, or 363 of the Bankruptcy Code (the “Debtor Professionals”) and the Committee
(if appointed) pursuant to section 327, 328, or 1103 of the Bankruptcy Code (the “Committee
Professionals” and, together with the Debtor Professionals, the “Professional Persons”) at any
time before or on the first business day following delivery by the DIP Agent (at the direction of
the Required DIP Lenders) (or by the Prepetition First Lien Term Loan Agent (at the direction of
the Required Lenders) after repayment of the DIP Obligations in full) of a Carve Out Trigger
Notice (as defined below), whether allowed by the Court prior to or after delivery of a Carve Out
Trigger Notice; and (iv) Allowed Professional Fees of Professional Persons in an aggregate
amount not to exceed $1,500,000 incurred after the first business day following delivery by the
DIP Agent of the Carve Out Trigger Notice (or (i) by the Prepetition First Lien Term Loan
Secured Parties and/or the Prepetition First Lien Notes Secured Parties after repayment of the
DIP Obligations in full and (ii) by the Prepetition Second Lien Term Loan Secured Parties after
repayment of the Prepetition First Lien Obligations in full),5 to the extent allowed at any time,
whether by interim order, procedural order, or otherwise (the amounts set forth in this clause
(iv) being the “Post-Carve Out Trigger Notice Cap”). For purposes of the foregoing, “Carve Out
5
For the avoidance of doubt, (i) the Prepetition First Lien Term Loan Secured Parties and/or the Prepetition First
Lien Notes Secured Parties shall not deliver a Carve Out Trigger Notice until the DIP Obligations are paid in
full and (ii) the Prepetition Second Lien Term Loan Secured Parties shall not deliver a Carve Out Trigger
Notice until the Prepetition First Lien Obligations are paid in full.
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Trigger Notice” shall mean a written notice delivered by email (or other electronic means) by the
DIP Agent (at the direction of the Required DIP Lenders) (or by the Prepetition First Lien Term
Loan Agent (at the direction of the Required Lenders) after repayment of the DIP Obligations in
full) to the Debtors, their lead restructuring counsel, the U.S. Trustee, and counsel to the
Committee (if appointed), which notice may be delivered following the occurrence and during
the continuation of an Event of Default and acceleration of the DIP Obligations under the DIP
Facility (or the occurrence of the Termination Date for the Debtors’ use of cash collateral and the
expiration of the applicable Remedies Notice Period and during the continuation of an Event of
Default (as defined herein)), stating that the Post-Carve Out Trigger Notice Cap has been
invoked.
(b) Delivery of Weekly Fee Statements. Not later than 7:00 p.m. New York
time on the third business day of each week starting with the first full calendar week following the
Petition Date, each Professional Person shall deliver to the Debtors, the DIP Agent, and the
DIP/First Lien Advisors a statement setting forth a good-faith estimate of the amount of unpaid
fees and expenses incurred during the preceding week by such Professional Person (through
Saturday of such week, the “Calculation Date”), along with a good-faith estimate of the
cumulative total amount of unreimbursed fees and expenses incurred through the applicable
Calculation Date and a statement of the amount of such fees and expenses that have been paid to
date by the Debtors (each such statement, a “Weekly Statement”); provided that, within one
business day of the occurrence of the Termination Declaration Date (as defined below), each
Professional Person shall deliver one additional statement (the “Final Statement”) setting forth a
good-faith estimate of the amount of unpaid fees and expenses incurred during the period
commencing on the calendar day after the most recent Calculation Date for which a Weekly
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Statement has been delivered and concluding on the Termination Declaration Date (and the
Debtors shall cause such Weekly Statement and Final Statement to be delivered on the same day
received to the DIP Agent and the DIP/First Lien Advisors). If any Professional Person fails to
deliver a Weekly Statement within three (3) calendar days after such Weekly Statement is due,
such Professional Person’s entitlement (if any) to any funds in the Pre-Carve Out Trigger Notice
Reserve (as defined below) with respect to the aggregate unpaid amount of Allowed Professional
Fees for the applicable period(s) for which such Professional Person failed to deliver a Weekly
Statement covering such period shall be limited to the aggregate unpaid amount of Allowed
Professional Fees included in the Approved Budget for such period for such Professional
Person.; provided that, for the avoidance of doubt, such limitation shall only apply temporally for
the applicable period(s) at issue and shall not be deemed to, or construed as, precluding,
excluding, limiting, or disallowing such Professional Person’s Allowed Professional Fees for
such applicable period(s).
(c) Carve Out Reserves. Commencing with the week ended June 14, 2024, and on or
before the Thursday of each week thereafter, the Debtors shall utilize all cash on hand as of such
date to fund a reserve in an amount equal to the sum of (a) the greater of (i) the aggregate unpaid
amount of all Estimated Fees and Expenses reflected in the Weekly Statement delivered on the
immediately prior Wednesday to the Debtors and the DIP Agent, and (ii) the aggregate amount
of unpaid Allowed Professional Fees contemplated to be incurred in the Approved Budget
during such week, plus (b) the Post Carve-Out Trigger Notice Cap, plus (c) an amount equal to
the amount of Allowed Professional Fees set forth in the Budget for the week occurring after the
most recent Calculation Date. The Debtors shall deposit and hold such amounts in a segregated
account maintained at the Debtors in trust (the “Funded Reserve Account”) to pay such Allowed
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Professional Fees (the “Funded Reserves”) prior to any and all other claims, and all payments of
Allowed Professional Fees incurred prior to the Termination Declaration Date shall be paid first
from such Funded Reserve Account; provided that when all Allowed Professional Fees have
been paid in full, any funds remaining in the Funded Reserve Account shall revert to the Debtors
for use in a manner consistent with the DIP Credit Agreement and this InterimFinal Order. For
the avoidance of doubt, the DIP Lenders shall have no obligation to fund aggregate fees and
expenses in excess of the New Money Commitments. Other than with respect to Debtor
Professionals, Professional Person’s entitlement (if any) to any funds in the Funded Reserve
Account shall be limited to the aggregate unpaid amount of Allowed Professional Fees included
in the Approved Budget for such Professional Person. On the day on which a Carve Out Trigger
Notice is given by the DIP Agent (at the direction of the Required DIP Lenders) (or by the
Prepetition First Lien Term Loan Agent (at the direction of the Required Lenders) after
repayment of the DIP Obligations in full) to the Debtors with a copy to counsel to the
Committee (the “Termination Declaration Date”), the Carve Out Trigger Notice shall constitute
a demand to, and the Debtors shall utilize all cash on hand as of such date, including cash in the
Funded Reserve Account, and any available cash thereafter held by any Debtor, to fund a reserve
in an amount equal to the then unpaid amounts of the Allowed Professional Fees accrued prior
to the Termination Declaration Date. The Debtors shall deposit and hold such amounts in a
segregated account maintained at the Debtors in trust to pay such then unpaid Allowed
Professional Fees incurred through the Termination Declaration Date (the “Pre-Carve Out
Trigger Notice Reserve”) prior to any and all other claims. For the avoidance of doubt, the DIP
Lenders shall have no obligation to fund the Pre-Carve Out Trigger Notice Reserve in excess of
the DIP Loans already funded to the Debtors from the eEscrow aAccount prior to the
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Termination Declaration Date and any such remaining DIP Loans held in the eEscrow aAccount
that has not yet been funded to the Debtors prior to the Termination Declaration Date shall not
be used to fund the Pre-Carve Out Trigger Notice Reserve. On the Termination Declaration
Date, after funding the Pre-Carve Out Trigger Notice Reserve, the Debtors shall utilize all
remaining cash on hand as of such date and any available cash thereafter held by any Debtor,
after funding the Pre-Carve Out Trigger Notice Reserve, to fund a reserve in an amount equal to
the Post-Carve Out Trigger Notice Cap. The Debtors shall deposit and hold such amounts in a
segregated account maintained at the Debtors in trust to pay such unpaid Allowed Professional
Fees benefiting from the Post-Carve Out Trigger Notice Cap (the “Post-Carve Out Trigger
Notice Reserve” and, together with the Pre-Carve Out Trigger Notice Reserve, the “Carve Out
Reserves”) prior to any and all other claims. Any remaining DIP Loans held in the eEscrow
aAccount that has not yet been funded to the Debtors prior to the Termination Declaration Date
shall not be used to fund the Post-Carve Out Trigger Notice Reserve. All funds in the Pre-Carve
Out Trigger Notice Reserve shall be used first to pay the obligations set forth in clauses (i)
through (iii) of the definition of Carve Out set forth above (the “Pre-Carve Out Amounts”), but
not, for the avoidance of doubt, the Post-Carve Out Trigger Notice Cap, until indefeasibly paid
in full, and then to the extent the Pre-Carve Out Trigger Notice Reserve has not been reduced to
zero to pay the DIP Agent for the benefit of the DIP Lenders, unless the DIP Obligations have
been indefeasibly paid in full, in cash, and all Commitments have been terminated, in which
case any such excess shall be paid to the Prepetition Secured Parties in accordance with their
rights and priorities as of the Petition Date. All funds in the Post-Carve Out Trigger Notice
Reserve shall be used first to pay the obligations set forth in clause (iv) of the definition of
Carve Out set forth above (the “Post-Carve Out Amounts”), and then, to the extent the
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Post-Carve Out Trigger Notice Reserve has not been reduced to zero, to pay the DIP Agent for
the benefit of the DIP Lenders, unless the DIP Obligations have been indefeasibly paid in full, in
cash, and all Commitments have been terminated, in which case any such excess shall be paid to
the Prepetition Secured Parties in accordance with their rights and priorities under the
Prepetition Intercreditor Agreements as of the Petition Date. Notwithstanding anything to the
contrary in the DIP Documents, or this InterimFinal Order, if either of the Carve Out Reserves is
not funded in full in the amounts set forth in this paragraph 10, then, any excess funds in one of
the Carve Out Reserves following the payment of the Pre-Carve Out Amounts and Post-Carve
Out Amounts, respectively, shall be used to fund the other Carve Out Reserve, up to the
applicable amount set forth in this paragraph 10, prior to making any payments to the DIP
Agent, the Prepetition Secured Parties, or the Prepetition Agents, as applicable.
Notwithstanding anything to the contrary in the DIP Documents or this InterimFinal Order,
following delivery of a Carve Out Trigger Notice, the DIP Agent and the Prepetition Agents
shall not sweep or foreclose on cash (including cash received as a result of the sale or other
disposition of any assets) of the Debtors until the Carve Out Reserves have been fully funded,
but shall have an automatically perfected lien and a security interest in any residual interest in
the Carve Out Reserves, with any excess paid to the DIP Agent for application in accordance
with the DIP Documents or if the DIP Obligations have been indefeasibly paid in full, to the
applicable Prepetition Agents, for application in accordance with the Prepetition Documents and
the Prepetition Intercreditor Agreements. Further, notwithstanding anything to the contrary in
this InterimFinal Order, (i) disbursements by the Debtors from the Carve Out Reserves shall not
constitute Loans (as defined in the DIP Credit Agreement) or increase or reduce the DIP
Obligations, (ii) the failure of the Carve Out Reserves to satisfy in full the Allowed Professional
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Fees shall not affect the priority of the Carve Out, and (iii) in no way shall the Initial Budget,
Budget, Carve Out, Post-Carve Out Trigger Notice Cap, Carve Out Reserves, or any of the
foregoing be construed as a cap or limitation on the amount of the Allowed Professional Fees,
nor as a cap or limitation on the amount of fees under 28 U.S.C. § 1930, due and payable by the
Debtors. For the avoidance of doubt and notwithstanding anything to the contrary in this
InterimFinal Order, the DIP FacilityDocuments, or in any Prepetition Document, the Carve Out,
including without limitation, for the avoidance of doubt, funds held in the Funded Reserve
Account and the Carve-Out Reserves pursuant to this paragraph 10, shall be senior to all liens
and claims securing the DIP Facility, the DIP Superpriority Claims, the DIP Liens, the Adequate
Protection Liens, and claims pursuant to section 507(b) of the Bankruptcy Code, and any and all
other forms of adequate protection, liens, or claims securing the DIP Obligations, the Prepetition
First Lien Term Loan Obligations, the Prepetition First Lien Notes Obligations, or the
Prepetition Second Lien Term Loan Obligations, including, without limitation, the Adequate
Protection Obligations, the Prepetition First Lien Adequate Protection Obligations and the
Prepetition Second Lien Adequate Protection Obligations.
(d) Carve Out Payment of Allowed Professional Fees Prior to the Termination
Declaration Date. Any payment or reimbursement made prior to the occurrence of the
Termination Declaration Date in respect of any Allowed Professional Fees shall not reduce the
Carve Out.
(e) No Direct Obligation To Pay Allowed Professional Fees. None of the DIP
Agent, DIP Lenders, or the Prepetition First Lien Term Loan Secured Parties shall be responsible
for the payment or reimbursement of any fees or disbursements of any Professional Person or any
fees or expenses of the U.S. Trustee or Clerk of the Court incurred in connection with the Cases
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or any successor cases under any chapter of the Bankruptcy Code. Nothing in this InterimFinal
Order or otherwise shall be construed to obligate the DIP Agent, the DIP Lenders, or the
Prepetition Secured Parties, in any way, to pay compensation to, or to reimburse expenses of, any
Professional Person or to guarantee that the Debtors have sufficient funds to pay such
compensation or reimbursement.
(f) Payment of Carve Out On or After the Termination Declaration Date.
Any payment or reimbursement made on or after the occurrence of the Termination Declaration
Date in respect of any Allowed Professional Fees shall permanently reduce the Carve Out on a
dollar-for-dollar basis. Any funding ofExcept as set forth in paragraph 10 of this Final Order, the
Carve Out shall be added to, and made a part of, thenot constitute DIP Obligations secured by
the DIP Collateral and shall be otherwise, First Lien Term Loan Obligations, First Lien Term
Loan Notes Obligations, or Second Lien Term Loan Obligations, but shall be entitled to the
protections granted under this InterimFinal Order, the DIP Documents, the Bankruptcy Code,
and applicable law.
11. Reservation of Rights of the DIP Agent, DIP Lenders, and Prepetition First Lien
Secured Parties. Subject only to the Carve Out, notwithstanding any other provision in this
InterimFinal Order or the DIP Documents to the contrary, the entry of this InterimFinal Order is
without prejudice to, and does not constitute a waiver of, expressly or implicitly, or otherwise
impair: (a) any of the rights of any of the Prepetition First Lien Secured Parties to seek any other
or supplemental relief in respect of the Debtors including the right to seek additional adequate
protection at and following the Final Hearing; provided that any such further or different
adequate protection shall at all times be subordinate and junior to the Carve Out and the claims
and liens of the DIP Secured Parties granted under this InterimFinal Order and the DIP
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Documents; (b) any of the rights of the DIP Secured Parties or the Prepetition First Lien Secured
Parties under the DIP Documents, the Prepetition Documents, the Prepetition Intercreditor
Agreements, or the Bankruptcy Code or under non-bankruptcy law (as applicable), including,
without limitation, the right of any of the DIP Secured Parties or the Prepetition First Lien
Secured Parties to (i) request modification of the automatic stay of section 362 of the Bankruptcy
Code, (ii) request dismissal of any of the Cases, conversion of any of the Cases to cases under
chapter 7, or appointment of a chapter 11 trustee or examiner with expanded powers in any of the
Cases, (iii) seek to propose, subject to the provisions of section 1121 of the Bankruptcy Code, a
chapter 11 plan or plans; or (c) any other rights, claims, or privileges (whether legal, equitable, or
otherwise) of any of the DIP Secured Parties or the Prepetition Secured Parties. The delay in or
failure of the DIP Secured Parties and/or the Prepetition First Lien Secured Parties to seek relief
or otherwise exercise their rights and remedies shall not constitute a waiver of any of the
DIP Secured Parties’ or the Prepetition First Lien Secured Parties’ rights and remedies. For all
adequate protection purposes throughout the Cases, each of the Prepetition First Lien Secured
Parties shall be deemed to have requested relief from the automatic stay and adequate protection
for any Diminution in Value from and after the Petition Date. For the avoidance of doubt, such
request will survive termination of this InterimFinal Order.
12. Reservation of Certain Committee and Third Party Rights and Bar of Challenges
and Claims. Subject to the Challenge Period (as defined herein), the stipulations, admissions,
waivers, and releases contained in this InterimFinal Order, including the Debtors’ Stipulations,
shall be binding upon the Debtors, their estates, and any of their respective successors in all
circumstances and for all purposes and the Debtors are deemed to have irrevocably waived and
relinquished all Challenges (as defined below) as of the Petition Date. The stipulations,
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admissions, and waivers contained in this InterimFinal Order, including, the Debtors’
Stipulations, shall be binding upon all other parties in interest, including any Ccommittee and
any other person acting on behalf of the Debtors’ estates, unless and to the extent that the
Committee or a party in interest with proper standing granted by order of the Court (or other
court of competent jurisdiction) has timely and properly filed an adversary proceeding or
contested matter under this Final Order and the Bankruptcy Rules seventy-five (75) calendar
days after entry of the Interim Order (i.e., no later than August 26, 2024) (the “Challenge Period”
and the date of expiration of the Challenge Period, the “Challenge Period Termination Date”);
provided, however, that if, prior to the end of the Challenge Period, (x) the cases convert to
chapter 7, or (y) if a chapter 11 trustee is appointed, then, in each such case, the Challenge Period
shall be extended by the later of (A) the time remaining under the Challenge Period plus ten (10)
days or (B) such other time as ordered by the Court solely with respect to any such trustee,
commencing on the occurrence of either of the events discussed in the foregoing clauses (x) and
(y); provided, that, subject to entry of the Final Order, the Challenge Period shall not be
extended past the date (as such date may be extended in accordance with the Bidding Procedures
and the consent rights thereunder) of a hearing on the approval of the Debtors’ proposed sale
transaction(s), if any, before this Court; (i) seeking to avoid, object to, or otherwise challenge the
findings or Debtors’ Stipulations regarding: (a) the validity, enforceability, extent, priority, or
perfection of the mortgages, security interests, and liens of the Prepetition Agents and the
Prepetition Secured Parties; or (b) the validity, enforceability, allowability, priority, secured
status, or amount of the Prepetition Obligations (any such claim, a “Challenge”), and (ii) in
which the Court enters a final order in favor of the plaintiff sustaining any such Challenge in any
such timely filed adversary proceeding or contested matter. Upon the expiration of the
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Challenge Period Termination Date without the filing of a Challenge (or if any such Challenge is
filed and overruled): (a) any and all such Challenges by any party (including the Committee, any
chapter 11 trustee, and/or any examiner or other estate representative appointed or elected in
these Cases, and any chapter 7 trustee and/or examiner or other estate representative appointed or
elected in any Successor Case) shall be deemed to be forever barred; (b) the Prepetition
Obligations shall constitute allowed claims, not subject to counterclaim, setoff, recoupment,
reduction, subordination, recharacterization, defense, or avoidance for all purposes in the
Debtors’ Cases and any Successor Cases; (c) the Prepetition Liens shall be deemed to have been,
as of the Petition Date, legal, valid, binding, and perfected secured claims, not subject to
recharacterization, subordination, or avoidance; and (d) all of the Debtors’ stipulations and
admissions contained in this InterimFinal Order, including the Debtors’ Stipulations, and all
other waivers, releases, affirmations, and other stipulations as to the priority, extent, and validity
as to the Prepetition Secured Parties’ claims, liens, and interests contained in this InterimFinal
Order shall be of full force and effect and forever binding upon the Debtors, the Debtors’ estates,
and all creditors, interest holders, and other parties in interest in these Cases and any Successor
Cases. If any such adversary proceeding or contested matter is timely and properly filed under
the Bankruptcy Rules and remains pending and the Cases are converted to chapter 7, the chapter
7 trustee may continue to prosecute such adversary proceeding or contested matter on behalf of
the Debtors’ estates. Furthermore, if any such adversary proceeding or contested matter is timely
and properly filed under the Bankruptcy Rules, the stipulations and admissions contained in this
InterimFinal Order, including the Debtors’ Stipulations, shall nonetheless remain binding and
preclusive on anythe Committee and any other person or entity except to the extent that such
stipulations and admissions were expressly challenged in such adversary proceeding or contested
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matter prior to the Challenge Period Termination Date. Nothing in this InterimFinal Order vests
or confers on any person (as defined in the Bankruptcy Code), including, without limitation,
anythe Committee appointed in the Cases, standing or authority to pursue any cause of action
belonging to the Debtors or their estates, including, without limitation any challenges (including
a Challenge) with respect to the Prepetition Documents, the Prepetition Liens, and the
Prepetition Obligations, and a separate order of the Court conferring such standing on anythe
Committee or other party-in-interest shall be a prerequisite for the prosecution of a Challenge by
suchthe Committee or such other party-in-interest. Notwithstanding anything to the contrary set
forth in this Final Order, the Committee shall have the right to serve upon the DIP Lender and
the Prepetition Secured Parties requests pursuant to Bankruptcy Rule 2004 relating to the
Prepetition First Lien Term Loan Obligations, the Prepetition First Lien Notes Obligations, and
the Second Lien Term Loan Obligations (the “2004 Requests”), and the Prepetition First Lien
Term Loan Obligations, the Prepetition First Lien Notes Obligations, and the Second Lien Term
Loan Obligations, as applicable, shall timely respond to such 2004 Requests, and to the extent
that the Prepetition First Lien Term Loan Obligations, the Prepetition First Lien Notes
Obligations, and the Second Lien Term Loan Obligations, as applicable, do not timely respond to
such 2004 Requests, the Committee shall be entitled to seek an emergency hearing with the
Court.
13. Termination Date. Following the Termination Date (as defined below) and the
expiration of the Remedies Notice Period as defined below), consistent with Article VIII of the
DIP Credit Agreement, (a) all DIP Obligations shall be immediately due and payable, all New
Money Commitments will terminate, and the Carve Out Reserves shall be funded as set forth in
this InterimFinal Order; (b) all authority to use Cash Collateral shall cease; provided, however,
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that during the Remedies Notice Period (as defined below), the Debtors may use Cash Collateral
solely to fund the Carve Out and, pay payroll, and for other expenses critical to the
administration of the Debtors’ estates in accordance with the Approved DIP Budget, subject to
any Permitted Variance provided for in the DIP Credit Agreement; and (c) the DIP Secured
Parties shall be otherwise entitled to exercise rights and remedies under the DIP Documents in
accordance with this InterimFinal Order.
14. Events of Default. The occurrence of any of the following events, unless waived
by the Required DIP Lenders in accordance with the terms of the DIP Documents, shall
constitute an event of default (collectively, the “Events of Default”): (a) the failure of the
Debtors to perform, in any material respect, any of the terms, provisions, conditions, covenants,
or obligations under this InterimFinal Order; (b) the failure of the Debtors to comply with any of
the case milestones set forth in section 6.19 of the DIP Credit Agreement (collectively, the
“Required Milestones”), in accordance with the DIP Credit Agreement, unless such Required
Milestone has been waived or extended by the Required DIP Lenders; or (c) the occurrence of an
“Event of Default” under the DIP Credit Agreement. The Required DIP Lenders shall provide
written notice (email being sufficient) of any Event of Default to the Debtors, anythe Committee,
and the U.S. Trustee; provided that such notice should be for informational purposes only and
shall not be a pre-requisite to the occurrence of an Event of Default.. For the avoidance of doubt,
(i) to the extent the Debtors breach section 6.23 of the DIP Credit Agreement, the Debtors may
cure such breach within three (3) Business Days before such breach constitutes an immediate
event of default under section 8.01(b) of the DIP Credit Agreement, (ii) section 8.01(k) of the
DIP Credit Agreement shall not apply to claims for fees and expenses of Professional Persons,
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and (iii) section 8.01(e) of the DIP Credit shall not apply to defaults under the Prepetition
Documents.
15. Rights and Remedies Upon Event of Default. Immediately upon the occurrence
and during the continuation of an Event of Default, notwithstanding the provisions of section 362
of the Bankruptcy Code, without any application, motion, or notice to, hearing before, or order
from the Court, but subject to the terms of this InterimFinal Order, and following the expiration
of the Remedies Notice Period (defined below), (a) the DIP Agent (at the direction of the
Required DIP Lenders) may declare (any such declaration shall be referred to herein as a
“Termination Declaration”) (i) all DIP Obligations owing under the DIP Documents to be
immediately due and payable, (ii) the termination, reduction or restriction of any further
commitment to extend credit to the Debtors to the extent any such commitment remains under
the DIP Facility, (iii) termination of the DIP Facility and the DIP Documents as to any future
liability or obligation of the DIP Agent and the DIP Lenders, but without affecting any of the DIP
Liens or the DIP Obligations, and (iv) that the Carve Out shall be triggered, through the delivery
of the Carve Out Trigger Notice to the DIP Borrower and (b) subject to paragraph 13(b), the DIP
Agent (at the direction of the Required DIP Lenders) may declare a termination, reduction or
restriction on the ability of the Debtors to use Cash Collateral (the date on which a Termination
Declaration is delivered, the “Termination Date”). The automatic stay in the Cases otherwise
applicable to the DIP Agent, the DIP Lenders, and the Prepetition Secured Parties is hereby
modified so that five (5) business days after the date a Termination Declaration is delivered
(such five (5) business day period, the “Remedies Notice Period”): (a) the DIP Agent (at the
direction of the Required DIP Lenders) shall be entitled to exercise its rights and remedies in
accordance with the DIP Documents and this InterimFinal Order to satisfy the DIP Obligations,
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DIP Superpriority Claims, and DIP Liens, subject to the Carve Out; (b) subject to the foregoing
clause (a), the applicable Prepetition First Lien Secured Parties shall be entitled to exercise their
respective rights and remedies to the extent available in accordance with the applicable
Prepetition Documents, the Prepetition Intercreditor Agreements, and this InterimFinal Order
with respect to the Debtors’ use of Cash Collateral. During the Remedies Notice Period, the
Debtors (and to the extent the Debtors elect not to do so, only following written request (which
may be via email) to the Debtors from the Committee to request an emergency hearing which the
Debtors decline, the Committee) shall be entitled to seek an emergency hearing within the
Remedies Notice Period with the Court. To the extent the Debtors (or, as applicable, the
Committee) timely seek an emergency hearing within the Remedies Notice Period with the Court
and this Court schedules such hearing on a date beyond the Remedies Notice Period solely
because of this Court’s availability, the Remedies Notice Period shall automatically be extended
to the date of such hearing. Except as set forth in this paragraph 15 or otherwise ordered by the
Court prior to the expiration of the Remedies Notice Period, after the Remedies Notice Period,
the Debtors shall waive their right to and shall not be entitled to seek relief, including, without
limitation, under section 105 of the Bankruptcy Code, to the extent such relief would in any way
impair or restrict the rights and remedies of the DIP Agent, the DIP Lenders, or the Prepetition
Secured Parties under this InterimFinal Order. Unless the Court orders otherwise prior to the
expiration of the Remedies Notice Period, the automatic stay, as to all of the DIP Agent, DIP
Lenders, and Prepetition First Lien Secured Parties shall automatically be terminated at the end
of the Remedies Notice Period without further notice or order. Upon expiration of the Remedies
Notice Period, the DIP Agent (at the direction of the Required DIP Lenders) and the Prepetition
First Lien Secured Parties shall be permitted to exercise all remedies set forth herein, and in the
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DIP Documents, and as otherwise available at law without further order of or application or
motion to this Court consistent with this InterimFinal Order. Notwithstanding anything to the
contrary in this InterimFinal Order, following an Event of Default, the Prepetition Secured
Parties shall be stayed from enforcing any rights and remedies under this InterimFinal Order
unless and until the DIP Agent has delivered a Carve Out Trigger Notice pursuant to paragraph
10 and has complied with its obligations in connection with the issuance thereof or consents to
such enforcement.
16. Limitation on Charging Expenses Against Collateral. Subject to entry of the Final
Order, noNo expenses of administration of the Cases or any future proceeding that may result
therefrom, including liquidation in bankruptcy or other proceedings under the Bankruptcy Code,
shall be charged against or recovered from (a) the DIP Collateral (except to the extent of the
Carve Out), the DIP Agent, or the DIP Lenders or (b) the Prepetition Collateral (except to the
extent of the Carve Out) or the Prepetition Secured Parties, in each case, pursuant to sections
105(a) or 506(c) of the Bankruptcy Code or any similar principle of law or equity, without the
prior written consent of the DIP Agent, the DIP Lenders, and the Prepetition First Lien Secured
Parties, as applicable, and no such consent shall be implied from any other action, inaction, or
acquiescence by the DIP Agent, the DIP Lenders, or the Prepetition Secured Parties.
17. Use of Cash Collateral. The Debtors are hereby authorized to use all Cash
Collateral of the Prepetition Secured Parties, but solely for the purposes set forth in this
InterimFinal Order and solely in accordance with the Approved DIP Budget (subject to permitted
variances as set forth in this InterimFinal Order and the DIP Documents), including, without
limitation, to make payments on account of the Adequate Protection Obligations provided for in
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this InterimFinal Order, from the date of this InterimFinal Order through and including the date
of termination of the DIP Credit Agreement.
18. Expenses and Indemnification.
(a) The Debtors are hereby authorized and directed to pay, in accordance with
this InterimFinal Order, the principal, interest, fees, payments, expenses, and other amounts
described in the DIP Documents as such amounts become due and without need to obtain further
Court approval, including, without limitation, backstop, fronting, closing, arrangement or
commitment payments (including all payments and other amounts owed to the DIP Lenders),
administrative agent’s fees, collateral agent’s fees, and escrow agent’s fees (including all fees
and other amounts owed to the DIP Agent), the reasonable and documented fees and
disbursements of counsel and other professionals to the extent listed and set forth in paragraphs
3(e)(3), 8(c), and 9(c) of this InterimFinal Order, all to the extent provided in this InterimFinal
Order or the DIP Documents. Notwithstanding the foregoing, the Debtors are authorized and
directed to pay on the Closing Date (as defined in the DIP Documents), subject to paragraphs
3(e)(3), 8(c), and 9(c), all reasonable and documented fees, costs, and expenses, including the
fees and expenses of counsel to the DIP Lenders, the DIP Agent, the Prepetition Agents, and the
Prepetition First Lien Secured Parties incurred on or prior to such date without the need to be
subject to the procedures set forth in paragraph 18(b).
(b) The Debtors shall be jointly and severally obligated to pay all fees and
expenses described above, which obligations shall constitute the DIP Obligations. The Debtors
shall pay the reasonable and documented professional fees, expenses, and disbursements of
professionals to the extent provided for in paragraphs 3(e)(3), 8(c), and 9(c) of this InterimFinal
Order (collectively, the “Lender Professionals” and, each, a “Lender Professional”) no later than
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fiveseven (57) business days (the “Review Period”) after the receipt by counsel for the Debtors,
anythe Committee, or the U.S. Trustee of each of the invoices therefor (the “Invoiced Fees”) and
without the necessity of filing formal fee applications, including such amounts arising before the
Petition Date. Invoiced Fees shall be in the form of an invoice summary for professional fees
and categorized expenses incurred during the pendency of the Cases, and such invoice summary
shall not be required to contain time entries, but shall include a general, brief description of the
nature of the matters for which services were performed (which shall provide sufficient
information to determine if such fees and expenses are reasonable), and which may be redacted
or modified to the extent necessary to delete any information subject to the attorney-client
privilege, any work product doctrine, privilege or protection, common interest doctrine privilege
or protection, any other evidentiary privilege or protection recognized under applicable law, or
any other confidential information, and the provision of such invoices shall not constitute any
waiver of the attorney-client privilege, work product doctrine, privilege or protection, common
interest doctrine privilege or protection, or any other evidentiary privilege or protection
recognized under applicable law. The Debtors, anythe Committee, or the U.S. Trustee may
dispute the payment of any portion of the Invoiced Fees (the “Disputed Invoiced Fees”) if, within
the Review Period, a Debtor, anythe Committee that may be appointed in these Cases, or the
U.S. Trustee notifies the submitting party in writing setting forth the specific objections to the
Disputed Invoiced Fees (to be followed by the filing with the Court, if necessary, of a motion or
other pleading, with at least ten (10) days prior written notice to the submitting party of any
hearing on such motion or other pleading). For avoidance of doubt, the Debtors shall promptly
pay in full all Invoiced Fees other than the Disputed Invoiced Fees.
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(c) In addition, as provided in section 10.05 of the DIP Credit Agreement, the
Debtors will indemnify each of the DIP Lenders, the DIP Agent, the Prepetition Agents, the
Prepetition First Lien Secured Parties, and each of their respective aAffiliates (as defined in the
DIP Credit Agreement), successors, and assigns and the officers, directors, employees, agents,
attorneys, advisors, controlling persons, and members of each of the foregoing (each an
“Indemnified Person”) and hold them harmless from and against all costs, expenses (including
but not limited to reasonable and documented legal fees and expenses), and liabilities arising out
of or relating to the transactions contemplated hereby and any actual or proposed use of the
proceeds of any loans made under the DIP Facility as and to the extent provided in the DIP
Credit Agreement; provided that the Debtors shall not indemnify any Indemnified Person against
a successful Challenge, including a Challenge of the underlying First Lien Term Loan Liens
securing those First Lien Term Loans converted into Roll-Up Loans. No Indemnified Person
shall have any liability (whether direct or indirect, in contract, tort, or otherwise) to the Debtors
or any shareholders or creditors of the Debtors for or in connection with the transactions
contemplated hereby, except to the extent such liability is found in a final non-appealable
judgment by a court of competent jurisdiction to have resulted solely from such Indemnified
Person’s gross negligence, fraud, or willful misconduct or breach of their obligations under the
DIP Facility, which indemnity shall have equal priority and lien status to the DIP Superpriority
Claims. In no event shall any Indemnified Person or any Debtor be liable on any theory of
liability for any special, indirect, consequential, or punitive damages; provided, that this shall not
affect the Debtor’s indemnification obligations pursuant to the immediately preceding sentence.
For the avoidance of doubt, nothing in this Final Order shall be construed as granting any
prospective exculpation to the DIP Lenders or the Prepetition Secured Parties.
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19. No Third Party Rights. Except as explicitly provided for herein, this InterimFinal
Order does not create any rights for the benefit of any third party, creditor, equity holder, or any
direct, indirect, or incidental beneficiary.
20. Section 507(b) Reservation. Subject only to the Carve Out, nothing herein shall
impair or modify the application of section 507(b) of the Bankruptcy Code in the event that the
adequate protection provided to the Prepetition Secured Parties is insufficient to compensate for
any Diminution in Value of their interests in the Prepetition Collateral during the Cases.
Nothing contained herein shall be deemed a finding by the Court, or an acknowledgment by any
of the Prepetition Secured Parties that the adequate protection granted herein does in fact
adequately protect any of the Prepetition Secured Parties against any Diminution in Value of
their respective interests in the Prepetition Collateral (including the Cash Collateral). To the
extent the Prepetition Secured Parties request any additional adequate protection to compensate
for the Diminution in Value of their interests in the Prepetition Collateral during the Cases, the
Prepetition Secured Parties shall provide the Committee with written notice (email being
sufficient) prior to the deadline to vote to accept or reject any chapter 11 plan of such request and
a reasonably detailed explanation for the Diminution in Value and the Committee’s rights are
fully preserved with respect to such request.
21. Insurance. Until the DIP Obligations have been indefeasibly paid in full, at all
times the Debtors shall maintain casualty and loss insurance coverage for the Prepetition
Collateral and the DIP Collateral on substantially the same basis as maintained prior to the
Petition Date and shall name the DIP. To the extent that any of the Prepetition Agents is listed
as loss payee and/or additional insured under the DIP Borrowers’ (or their affiliates’) insurance
policies, the DIP Agent shall also be deemed to be a loss payee and/or additional insured under
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such insurance policies and shall act in that capacity and distribute any proceeds recovered or
received in respect of any such insurance policies subject to the Carve Out and in accordance
with the terms of this Final Order, the other DIP Documents, and the Prepetition Intercreditor
Agreements, as applicable, thereunder.
22. No Waiver for Failure to Seek Relief. The failure or delay of the DIP Agent or
the Required DIP Lenders to exercise rights and remedies under this InterimFinal Order, the DIP
Documents, or applicable law, as the case may be, shall not constitute a waiver of their
respective rights hereunder, thereunder, or otherwise.
23. Perfection of the DIP Liens and Adequate Protection Liens.
(a) Without in any way limiting the automatically effective perfection of the
DIP Liens granted pursuant to paragraph 7 hereof and the Adequate Protection Liens granted
pursuant to paragraphs 8(a) and 9(a) hereof, the DIP Agent and the Prepetition Agents are hereby
authorized, but not required, to file or record financing statements, intellectual property filings,
mortgages, depository account control agreements, notices of lien, or similar instruments in any
jurisdiction in order to validate and perfect the liens and security interests granted hereunder.
Whether or not the DIP Agent or the Prepetition Agents shall (at the direction of the applicable
required lenders or required noteholders) choose to file such financing statements, intellectual
property filings, mortgages, notices of lien, or similar instruments, such liens and security
interests shall be deemed valid, perfected, allowed, enforceable, non-avoidable, and not, subject
to the Challenge Period, subject to challenge, dispute, or subordination as of the date of entry of
this InterimFinal Order. If the DIP Agent or the Prepetition Agents (at the direction of the
applicable required lenders or required noteholders) determines to file or execute any financing
statements, agreements, notice of liens, or similar instruments (which, in each case, shall be at
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the sole cost and expense of the Debtors), the Debtors shall use commercially reasonable efforts
to cooperate and assist in any such execution and/or filings as reasonably requested by the
DIP Agent or the Prepetition Agents (at the direction of the applicable required lenders or
required noteholders), and the automatic stay shall be modified solely to allow such filings as
provided for in this InterimFinal Order.
(b) A certified copy of this InterimFinal Order may, at the direction of the
applicable Required DIP Lenders, be filed with or recorded in filing or recording offices by the
DIP Agent or the Prepetition Agents in addition to or in lieu of such financing statements,
mortgages, notices of lien, or similar instruments, and all filing offices are hereby authorized to
accept such certified copy of this InterimFinal Order for filing and recording; provided, however,
that notwithstanding the date of any such filing, the date of such perfection shall be the date of
this InterimFinal Order.
(c) Any provision of any lease or other license, contract or other agreement
that requires (i) the consent or approval of one or more landlords, lessors, or other parties or (ii)
excluding any stamp-tax, the payment of any fees or obligations to any governmental entity, in
order for any Debtor to pledge, grant, sell, assign, or otherwise transfer any such leasehold
interest, or the proceeds thereof, or other collateral related thereto, is hereby deemed to be
inconsistent with the applicable provisions of the Bankruptcy Code, subject to applicable law.
Any such provision shall have no force and effect with respect to the granting of the DIP Liens
and the Adequate Protection Liens on such leasehold interest or the proceeds of any assignment
and/or sale thereof by any Debtor in accordance with the terms of the DIP Credit Agreement or
this InterimFinal Order, subject to applicable law.
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24. Release. Subject to the rights and limitations set forth in paragraph 12 of this
InterimFinal Order, each of the Debtors and the Debtors’ estates, on its own behalf and on behalf
of each of their predecessors, their successors, and assigns, shall, to the maximum extent
permitted by applicable law, unconditionally, irrevocably, and fully forever release, remise,
acquit, relinquish, irrevocably waive, and discharge, effective upon entry of this Interim Order,
each of the DIP Secured Parties and each of their respective affiliates, former, current, or future
officers, employees, directors, agents, representatives, owners, members, partners, financial
advisors, legal advisors, shareholders, managers, consultants, accountants, attorneys, affiliates,
assigns, and predecessors in interest, each in their capacity as such (collectively, the “Related
Parties”), and, effective upon entry of the Final Order, each of the Prepetition Agents and
Prepetition First Lien Secured Parties and each of their respective Related Parties, of and from
any and all claims, demands, liabilities, responsibilities, disputes, remedies, causes of action,
indebtedness and obligations, rights, assertions, allegations, actions, suits, controversies,
proceedings, losses, damages, injuries, attorneys’ fees, costs, expenses, or judgments of every
type, whether known, unknown, asserted, unasserted, suspected, unsuspected, accrued,
unaccrued, fixed, contingent, pending, or threatened, including, without limitation, all legal and
equitable theories of recovery, arising under common law, statute, or regulation or by contract, of
every nature and description that exist on the date hereof with respect to or relating to the DIP
Obligations, the DIP Liens, the DIP Documents, the Prepetition Obligations, the Prepetition
Liens or the Prepetition Documents, as applicable, including, without limitation: (i) any so-called
“lender liability” or equitable subordination claims or defenses, (ii) any and all claims and causes
of action arising under the Bankruptcy Code, and (iii) any and all claims and causes of action
regarding the validity, priority, extent, enforceability, perfection, or avoidability of the liens or
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claims of the DIP Secured Parties and the Prepetition Secured Parties; provided that nothing in
this paragraph 24 shall in any way limit or release the obligations of any DIP Secured Party
under the DIP Documents, thisthe Interim Order, and thethis Final Order.
25. Credit Bidding. Except as otherwise provided in the RSA, Ssubject to section
363(k) of the Bankruptcy Code, the DIP Agent (at the direction of the Required DIP Lenders)
and the Prepetition First Lien Term Loan Agent (at the direction of the Required Lenders) shall
have the right to credit bid (either directly or through one or more acquisition vehicles), up to the
full amount of the underlying lenders’ respective claims, including, for the avoidance of doubt,
Adequate Protection Superpriority Claims (other than any First Lien Adequate Protection Fees),
if any, in any sale of all or any portion of the Prepetition Collateral or the DIP Collateral
including, without limitation, sales occurring pursuant to section 363 of the Bankruptcy Code or
included as part of any chapter 11 plan subject to confirmation under section
1129(b)(2)(A)(ii)-(iii) of the Bankruptcy Code; provided that any right to credit bid pursuant to
this paragraph 25 shall be subject to the Committee’s Challenge rights under paragraph 12.
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26. Preservation of Rights Granted Under this InterimFinal Order.
(a) Unless and until all DIP Obligations are indefeasibly paid in full, in cash,
and all New Money Commitments are terminated, the Prepetition Secured Parties shall: (i) have
no right to and shall take no action to foreclose upon, or recover in connection with, the liens
granted thereto pursuant to the Prepetition Documents or this InterimFinal Order, or otherwise
seek to exercise or enforce any rights or remedies against such DIP Collateral; and (ii) not file
any further financing statements, trademark filings, copyright filings, mortgages, notices of lien
or similar instruments, or otherwise take any action to perfect their security interests in the DIP
Collateral, except as set forth in paragraph 23 herein.
(b) In the event this InterimFinal Order or any provision hereof is vacated,
reversed, or modified on appeal or otherwise, any liens or claims granted to the DIP Secured
Parties or the Prepetition Secured Parties hereunder arising prior to the effective date of any such
vacatur, reversal, or modification of this InterimFinal Order shall be governed in all respects by
the original provisions of this InterimFinal Order, including entitlement to all rights, remedies,
privileges, and benefits granted herein, and the Prepetition Secured Parties shall be entitled to all
the rights, remedies, privileges, and benefits afforded in section 364(e) of the Bankruptcy Code.
(c) Subject to the Carve Out, Uunless and until all DIP Obligations,
Prepetition Obligations, and Adequate Protection Obligations are indefeasibly paid in full, in
cash, and all New Money Commitments are terminated, the Debtors irrevocably waive the right
to seek and shall not seek or consent to, directly or indirectly (i) except as permitted under the
DIP Documents or, if not provided for therein, with the prior written consent of the DIP Agent,
the Required DIP Lenders, and the Prepetition Agents (acting at the direction of the applicable
Rrequired Llenders or required noteholders), (x) any modification, stay, vacatur, or amendment
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of this InterimFinal Order or (y) a priority claim for any administrative expense or unsecured
claim against any of the Debtors (now existing or hereafter arising of any kind or nature
whatsoever, including, without limitation, any administrative expense of the kind specified in
sections 503(b), 507(a), or 507(b) of the Bankruptcy Code) in any of the Cases, pari passu with
or senior to the DIP Superpriority Claims, the Adequate Protection Superpriority Claims, or the
Prepetition First Lien Obligations, or (z) any other order allowing use of the DIP Collateral;
(ii) except as permitted under the DIP Documents (including the Carve Out), any lien on any of
the DIP Collateral or the Prepetition Collateral with priority equal or superior to the DIP Liens,
the Adequate Protection Liens or the Prepetition Liens, as applicable; (iii) the use of Cash
Collateral for any purpose other than as permitted in the DIP Documents and this InterimFinal
Order; (iv) except as set forth in the DIP Documents, the return of goods pursuant to section
546(h) of the Bankruptcy Code (or other return of goods on account of any prepetition
indebtedness) to any creditor of any Debtor; (v) an order converting or dismissing any of the
Cases; (vi) an order appointing a chapter 11 trustee in any of the Cases; or (vii) an order
appointing an examiner with enlarged powers in any of the Cases; provided, however, that none
of the foregoing shall require the Debtors to violate their fiduciary duties.
(d) Notwithstanding any order dismissing any of the Cases entered at any
time, (x) the DIP Liens, the DIP Superpriority Claims, the Adequate Protection Liens, the
Adequate Protection Superpriority Claims, and the other administrative claims granted pursuant
to this InterimFinal Order shall continue in full force and effect and shall maintain their priorities
as provided in this InterimFinal Order until all DIP Obligations and Adequate Protection
Payments are indefeasibly paid in full in cash (and such DIP Liens, DIP Superpriority Claims,
Adequate Protection Liens, Adequate Protection Superpriority Claims, and the other
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administrative claims granted pursuant to this InterimFinal Order, shall, notwithstanding such
dismissal, remain binding on all parties in interest); and (y) to the fullest extent permitted by law
the Court shall retain jurisdiction, notwithstanding such dismissal, for the purposes of enforcing
the claims, liens, and security interests referred to in clause (x) above.
(e) Except as expressly provided in this InterimFinal Order or in the DIP
Documents, and subject to the rights of parties in interest specifically set forth in paragraph 12 of
this InterimFinal Order (and subject to the limitations thereon contained in such paragraph or
otherwise in this InterimFinal Order), the DIP Liens, the DIP Superpriority Claims, the Adequate
Protection Liens, the Adequate Protection Superpriority Claims, and all other rights and
remedies of the DIP Agent, the DIP Lenders, and the Prepetition Secured Parties granted by the
provisions of this InterimFinal Order and the DIP Documents shall survive, and shall not be
modified, impaired, or discharged by (i) the entry of an order converting any of the Cases to a
case under chapter 7, dismissing any of the Cases, terminating the joint administration of these
Cases or by any other act or omission, (ii) the entry of an order approving the sale of any
Prepetition Collateral or DIP Collateral pursuant to section 363(b) of the Bankruptcy Code, or
(iii) the entry of an order confirming a chapter 11 plan in any of the Cases and, pursuant to
section 1141(d)(4) of the Bankruptcy Code, the Debtors have waived any discharge as to any
remaining DIP Obligations or Adequate Protection Obligations. The terms and provisions of this
InterimFinal Order and the DIP Documents shall continue in these Cases, in any successor cases
if these Cases cease to be jointly administered, or in any superseding chapter 7 cases under the
Bankruptcy Code. The DIP Liens, the DIP Superpriority Claims, the Adequate Protection Liens,
the Adequate Protection Superpriority Claims, and all other rights and remedies of the DIP
Secured Parties and the Prepetition Secured Parties granted by the provisions of this InterimFinal
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Order shall continue in full force and effect until the DIP Obligations and the Adequate
Protection Payments are indefeasibly paid in full, in cash or, with respect to the DIP Obligations,
otherwise satisfied in a manner agreed to by the Required DIP Lenders and the DIP Agent
(acting at the direction of the Required DIP Lenders).
(f) Other than as set forth in this InterimFinal Order, subject to the Carve Out,
neither the DIP Liens nor the Adequate Protection Liens shall be made subject to or pari passu
with any lien or security interest granted in any of the Cases or arising after the Petition Date,
and neither the DIP Liens nor the Adequate Protection Liens shall be subject or junior to any lien
or security interest that is avoided and preserved for the benefit of the Debtors’ estates under
section 551 of the Bankruptcy Code.
27. Limitation on Use of DIP Facility Proceeds, DIP Collateral, and Cash Collateral.
Notwithstanding anything to the contrary set forth in this Interim OrderFinal Order, but subject
to Review Period set forth in paragraph 18 hereof, none of the DIP Facility, the DIP Collateral,
the Prepetition Collateral, including Cash Collateral, or the Carve Out or proceeds thereof may
be used: (a) to investigate (including by way of examinations or discovery proceedings), initiate,
assert, prosecute, join, commence, support, or finance the initiation or prosecution of any claim,
counterclaim, action, suit, arbitration, proceeding, application, motion, objection, defense,
adversary proceeding, or other litigation of any type (i) against any of the DIP Secured Parties or
the Prepetition Secured Parties (each in their capacities as such), and each of their respective
affiliates, officers, directors, employees, agents, representatives, attorneys, consultants, financial
advisors, affiliates, assigns, or successors, with respect to any transaction, occurrence, omission,
action, or other matter (including formal discovery proceedings in anticipation thereof),
including, without limitation, any so-called “lender liability” claims and causes of action, or
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seeking relief that would impair the rights and remedies of the DIP Secured Parties or the
Prepetition Secured Parties (each in their capacities as such) under the DIP Documents, the
Prepetition Documents, or this InterimFinal Order, including, without limitation, for the payment
of any services rendered by the professionals retained by the Debtors or anythe Committee
appointed in these Cases in connection with the assertion of or joinder in any claim,
counterclaim, action, suit, arbitration, proceeding, application, motion, objection, defense,
adversary proceeding, or other contested matter, the purpose of which is to seek, or the result of
which would be to obtain, any order, judgment, determination, declaration, or similar relief that
would impair the ability of any of the DIP Secured Parties or the Prepetition Secured Parties to
recover on the DIP Collateral or the Prepetition Collateral or seeking affirmative relief against
any of the DIP Secured Parties or the Prepetition Secured Parties related to the DIP Obligations
or the Prepetition Obligations; (ii) invalidating, setting aside, avoiding, or subordinating, in
whole or in part, the DIP Obligations or the Prepetition Obligations, or the DIP Agent’s, the DIP
Lenders’, and the Prepetition Secured Parties’ liens or security interests in the DIP Collateral or
Prepetition Collateral, as applicable; or (iii) for monetary, injunctive, or other affirmative relief
against the DIP Secured Parties or the Prepetition Secured Parties, or the DIP Agent’s, the DIP
Lenders’, the Prepetition Secured Parties’ respective liens on or security interests in the DIP
Collateral or the Prepetition Collateral that would impair the ability of any of the DIP Secured
Parties or the Prepetition Secured Parties, as applicable, to assert or enforce any lien, claim,
right, or security interest or to realize or recover on the DIP Obligations or the Prepetition
Obligations, to the extent applicable; (b) for objecting to or challenging in any way the legality,
validity, priority, perfection, or enforceability of the claims, liens, or interests (including the
Prepetition Liens) held by or on behalf of each of the Prepetition Secured Parties related to the
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Prepetition Obligations, or by or on behalf of the DIP Agent and the DIP Lenders related to the
DIP Obligations; (c) for asserting, commencing, or prosecuting any claims or causes of action
whatsoever, including, without limitation, any Avoidance Actions related to the DIP Obligations,
the DIP Liens, the Prepetition Obligations, or the Prepetition Liens; or (d) for prosecuting an
objection to, contesting in any manner, or raising any defenses to, the validity, extent, amount,
perfection, priority, or enforceability of: (x) any of the DIP Liens or any other rights or interests
of the DIP Agent or the DIP Lenders related to the DIP Obligations or the DIP Liens, or (y) any
of the Prepetition Liens or any other rights or interests of any of the Prepetition Secured Parties
related to the Prepetition Obligations or the Prepetition Liens, provided that no more than
$1250,000 of the proceeds of the DIP Facility, the DIP Collateral, or the Prepetition Collateral,
including the Cash Collateral, in the aggregate, may be used by anythe Committee appointed in
these Cases, if any, solely to investigate, within the Challenge Period (as defined below), the
claims, causes of action, adversary proceedings, or other litigation against the Prepetition
Secured Parties solely concerning the legality, validity, priority, perfection, enforceability or
extent of the claims, liens, or interests (including the Prepetition Liens) held by or on behalf of
each of the Prepetition Secured Parties related to the Prepetition Obligations.
28. Conditions Precedent. Except as provided for in the Carve Out, no DIP Lender
shall have any obligation to make any DIP Loan under the respective DIP Documents unless all
of the conditions precedent to the making of such extensions of credit under the applicable DIP
Documents have been satisfied in full or waived in accordance with such DIP Documents.
29. Prepetition Intercreditor Agreements. Pursuant to section 510 of the Bankruptcy
Code, any applicable intercreditor or subordination provisions contained in any of the Prepetition
Documents, including the Prepetition Intercreditor Agreements, shall remain in full force and
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effect; provided that nothing in this InterimFinal Order shall be deemed to provide liens to any
Prepetition Secured Party on any assets of the Debtors except as set forth herein.
30. Binding Effect; Successors and Assigns. The DIP Documents and the provisions
of this InterimFinal Order, including all findings herein, shall, subject to paragraph 12, be
binding upon all parties in interest in these Cases, including, without limitation, the DIP Secured
Parties, the Prepetition Secured Parties, any Ccommittee appointed in these Cases, and the
Debtors and their respective successors and permitted assigns (including any chapter 7 or chapter
11 trustee hereinafter appointed or elected for the estate of any of the Debtors, an examiner
appointed pursuant to section 1104 of the Bankruptcy Code, or any other fiduciary appointed as a
legal representative of any of the Debtors or with respect to the property of the estate of any of
the Debtors) and shall inure to the benefit of the DIP Secured Parties and the applicable
Prepetition Secured Parties; provided that, except to the extent expressly set forth in this
InterimFinal Order, the Prepetition Secured Parties shall have no obligation to permit the use of
Cash Collateral or to extend any financing to any chapter 7 trustee or similar responsible person
appointed for the estates of the Debtors. In determining to make any loan (whether under the
DIP Credit Agreement, a promissory note or otherwise) to permit the use of Cash Collateral
pursuant to this InterimFinal Order or the DIP Documents, the DIP Secured Parties and the
Prepetition Secured Parties shall not (i) be deemed to be in control of the operations of the
Debtors, or (ii) owe any fiduciary duty to the Debtors, their respective creditors, shareholders, or
estates.
31. Limitation of Liability. In determining to make any loan under the DIP
Documents, or permitting the use of Cash Collateral, pursuant to this InterimFinal Order or the
DIP Documents, the DIP Secured Parties and the Prepetition Secured Parties shall not, solely by
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reason thereof, be deemed in control of the operations of the Debtors or to be acting as a
“responsible person” or “owner or operator” with respect to the operation or management of the
Debtors (as such terms, or any similar terms, are used in the United States Comprehensive
Environmental Response, Compensation and Liability Act, 29 U.S.C. §§ 9601 et seq. as
amended, or any similar federal or state statute). Furthermore, nothing in this InterimFinal Order
or in the DIP Documents shall in any way be construed or interpreted to impose or allow the
imposition upon the DIP Agent, the DIP Lenders, or any Prepetition Secured Parties of any
liability for any claims arising from the prepetition or post-petition activities of any of the
Debtors.
32. No Requirement to File Claim for DIP Obligations. Notwithstanding anything to
the contrary contained in any prior or subsequent order of the Court, including, without
limitation, any order establishing a deadline for the filing of proofs of claim or requests for
payment of administrative expenses under section 503(b) of the Bankruptcy Code, neither the
DIP Agent nor any DIP Lender shall be required to file any proof of claim or request for payment
of administrative expenses with respect to any of the DIP Obligations, all of which shall be due
and payable in accordance with the DIP Documents without the necessity of filing any such
proof of claim or request for payment of administrative expenses, and the failure to file any such
proof of claim or request for payment of administrative expenses shall not affect the validity,
priority, or enforceability of any of the DIP Documents or of any indebtedness, liabilities, or
obligations arising at any time thereunder or prejudice or otherwise adversely affect the
DIP Agent’s or any DIP Lender’s rights, remedies, powers, or privileges under any of the DIP
Documents, this InterimFinal Order, or applicable law. The provisions set forth in this paragraph
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are intended solely for the purpose of administrative convenience and shall not affect the
substantive rights of any party-in-interest or their respective successors-in-interest.
33. No Requirement to File Claim for Prepetition Obligations. Notwithstanding
anything to the contrary contained in any prior or subsequent order of the Court, including,
without limitation, any order establishing a deadline for the filing of proofs of claim or requests
for payment of administrative expenses under section 503(b) of the Bankruptcy Code, neither the
Prepetition Agents nor any Prepetition Secured Parties shall be required to file any proof of claim
or request for payment of administrative expenses with respect to any of the Prepetition
Obligations; and the failure to file any such proof of claim or request for payment of
administrative expenses shall not affect the validity, priority, or enforceability of any of the
Prepetition Documents or of any indebtedness, liabilities, or obligations arising at any time
thereunder or prejudice or otherwise adversely affect the Prepetition Agents’ or any Prepetition
Secured Party’s rights, remedies, powers, or privileges under any of the Prepetition Documents,
this InterimFinal Order, or applicable law. Subject to paragraph 20, each Prepetition Agent, for
the benefit of itself and the other Prepetition Secured Parties is hereby authorized and entitled, in
its sole discretion, but not required, to file (and amend and/or supplement, in its discretion) in the
Debtors’ lead chapter 11 case a single master proof of claim, which shall be deemed to have
been filed in each of the Cases or Successor Cases on account of the Prepetition Obligations or
the Adequate Protection Obligations, as applicable. The provisions set forth in this paragraph
are intended solely for the purpose of administrative convenience and shall not affect the
substantive rights of any party-in-interest or their respective successors-in-interest.
34. No Marshaling. Subject to entry of the Final OrderExcept as otherwise set forth
herein, the DIP Agent and the DIP Secured Parties shall not be subject to the equitable doctrine
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of “marshaling” or any other similar doctrine with respect to any of the DIP Collateral, and
proceeds of the DIP Collateral shall be received and applied pursuant to this InterimFinal Order,
the DIP Documents and the Prepetition Documents, notwithstanding any other agreement or
provision to the contrary, and the Prepetition Secured Parties shall not be subject to the equitable
doctrine of “marshaling” or any other similar doctrine with respect to any of the Prepetition
Collateral.
35. Application of Proceeds of DIP Collateral. Subject to entry of a Final Order, the
DIP Obligations, at the option of the Required DIP Lenders, to be exercised in their sole and
absolute discretion, shall be repaid (a) first, from the DIP Collateral comprising Previously
Unencumbered Property and (b) second, from all other DIP Collateral.[Reserved].
36. Equities of the Case. The Prepetition Secured Parties shall each be entitled to all
the rights and benefits of section 552(b) of the Bankruptcy Code, and, subject to and upon entry
of the Final Order, the “equities of the case” exception under section 552(b) of the Bankruptcy
Code shall not apply to the Prepetition Secured Parties with respect to proceeds, product,
offspring, or profits of any of the Collateral (including the Prepetition Collateral).
37. Transferred Assets. Notwithstanding anything contained in the Interim Order,
this Final Order, or any DIP Documents, no liens or other security interests granted hereunder or
under any DIP Loan Document, including any DIP Liens or any Adequate Protection Liens, shall
attach to, encumber, or otherwise impact the “Transferred Assets” as defined in that certain
Stock and Asset Purchase Agreement by and between Vyaire Holding Company and SunMed
Group Holdings, LLC, dated as of March 27, 2023, and such Transferred Assets are not property
of the Debtors’ estates.
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38. Final Hearing. The Final Hearing on the Motion shall be held on July 9, 2024, at
10:00 a.m., prevailing Eastern time. Any objections or responses to entry of a final order on the
Motion shall be filed on or before 4:00 p.m., prevailing Eastern time, on July 2, 2024, and shall
be served on: (a) the Debtors, 26125 North Riverwoods Boulevard, Mettawa, Illinois, USA
60045, Attn.: Charles Braley (cbraley@alixpartners.com); (b) proposed co-counsel to the
Debtors (i) Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York 10022, Attn.:
Joshua A. Sussberg, P.C. (joshua.sussberg@kirkland.com), Chris Ceresa
(chris.ceresa@kirkland.com), and Tiffani Chanroo (tiffani.chanroo@kirkland.com) (ii) Kirkland
& Ellis LLP, 333 West Wolf Point Plaza, Chicago, Illinois, 60654, Attn.: Spencer A. Winters
(spencer.winters@kirkland.com) and Yusuf U. Salloum (yusuf.salloum@kirkland.com), and,
(iii) Cole Schotz P.C., 500 Delaware Avenue, Suite 1410, Wilmington, Delaware 19801, Attn.:
Patrick J. Reilley, Esq. (preilley@coleschotz.com), Stacy L. Newman
(snewman@coleschotz.com), Michael E. Fitzpatrick, Esq. (mfitzpatrick@coleschotz.com), and
Jack M. Dougherty, Esq. (jdougherty@coleschotz), and (iv) Cole Schotz P.C., Court Plaza
North, 25 Main Street, Hackensack, New Jersey 07601, Attn.: Michael D. Sirota, Esq
(msirota@coleschotz.com) and Warren A. Usatine, Esq. (wusatine@coleschotz.com); (c)
co-counsel to the DIP Lenders and the DIP/First Lien Group, (i) Gibson, Dunn & Crutcher LLP,
200 Park Ave., New York, NY 10166, Attn: Scott J. Greenberg (sgreenberg@gibsondunn.com),
Jason Zachary Goldstein (jgoldstein@gibsondunn.com), Joshua Brody
(jbrody@gibsondunn.com), and Kevin Liang (kliang@gibsondunn.com) and (ii) Pachulski Stang
Ziehl & Jones LLP, 919 North Market Street, 17th Floor, Wilmington, DE 19801, Attn: Laura
Davis Jones (ljones@pszjlaw.com); (d) co-counsel to the DIP Agent, (i) ArentFox Schiff LLP,
1301 Avenue of the Americas, 42nd Floor, New York, NY 10019, Attn: Jeffrey R. Gleit
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(jeffrey.gleit@afslaw.com) and (ii) Morris James LLP, 500 Delaware Avenue, Suite 1500,
Wilmington, DE 19801, Attn: Eric J. Monzo (emonzo@morrisjames.com) and Brya Keilson
(bkeilson@morrisjames.com); (e) co-counsel to the Prepetition First Lien Term Loan Agent,
(i) Haynes & Boone LLP, 2801 N. Hardwood Street, Suite 2300, Dallas, TX 75201, Attn: Eli
Columbus (eli.columbus@haynesboone.com), James Markus
(james.markus@haynesboone.com), and Dani Leon-Osorio
(Dani.Leon-Osorio@haynesboone.com) and (ii) local counsel; (f) co-counsel to the Prepetition
First Lien Notes Agent and the Prepetition Second Lien Term Loan Agent, (i) Seward & Kissel
LLP, One Battery Park Plaza, New York, NY 10004, Attn: Ronald A. Hewitt
(hewitt@sewkis.com) and (ii) local counsel; (g) the United States Trustee, 844 King Street, Suite
2207, Lockbox 35, Wilmington, Delaware 19801, Attn: Benjamin A. Hackman
(benjamin.a.hackman@usdoj.gov); and (h) counsel to any statutory committee appointed in these
chapter 11 cases. In the event no objections to entry of the Final Order on the Motion are timely
received, this Court may enter such Final Order without need for the Final Hearing.
38. [Reserved].
39. Notwithstanding anything to the contrary contained in this InterimFinal Order,
including, without limitation, paragraphs 6, 7 hereof, to the extent the Prepetition First Lien
Revolving Loan Obligations become allowed claims, and 8 hereof, the DIP Liens and DIP
Superpriority Claims granted herein solely with respect to the Roll-Up Loans (but, for the
avoidance of doubt, not with respect to the New Money Loans made available to the DIP
Borrowers on the date of thisboth the Interim Order) shall not and this Final Order) shall be
subject and subordinate to, in all respects, the First Lien Term Loan Liens in existence as of the
Petition Date securing the Prepetition First Lien Revolving Loan Obligations and the First Lien
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Adequate Protection Liens and First Lien Adequate Protection Superpriority Claims granted by
virtue of entry of this Final Order on account of the Prepetition First Lien Revolving Loan
Obligations; provided, that, for the avoidance of doubt, (i) the DIP Liens and DIP Superpriority
Claims granted herein with respect to the New Money Loans shall be senior to the First Lien
Term Loan Liens, in existence as of the Petition Date, securing suchthe Prepetition First Lien
Revolving Loan Obligations and the First Lien Adequate Protection Liens and First Lien
Adequate Protection Superpriority Claims granted by virtue of entry of this Interim Order;
provided, that, all rights of the Debtors, DIP Agent and DIP/First Lien Group, on the one hand,
and the Prepetition First Lien Loan Agent and Prepetition First Lien Revolving Lenders, on the
other, are reserved with respect to the allowanceFinal Order on account of the Prepetition First
Lien Revolving Loan Obligations; provided, further, that the Debtors, DIP Agent and DIP/First
Lien Group reserve the right to request, upon entry of a Final Order, approval of DIP Liens in
respect of any and all Roll-Up Loans (and any other New Money Loans) that are senior in
priority to the First Lien Term Loan Liens securing such Prepetition First Lien Revolving Loan
Obligations, and, (ii) with the exception of First Lien Adequate Protection Fees, no interest,
default interest, additional fees, penalties, or other costs shall accrue on the Prepetition First Lien
Revolving Loan Agent andObligations, and (iii) except for payment of the First Lien Adequate
Protection Fees as provided herein, the Debtors shall not, without the consent of the Required
DIP Lenders, pay the Prepetition First Lien Revolving Lenders reserve the right to oppose such
reliefLoan Obligations until the New Money Loans have been indefeasibly paid in full, in cash,
or otherwise satisfied in full with the consent, or at the direction, of the Required DIP Lenders.
40. Chubb Reservation of Rights. For the avoidance of doubt, (i) the Debtors shall
not grant liens and/or security interests in any insurance policies issued by ACE American
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Insurance Company and/or any of its U.S.-based affiliates (collectively, together with each of
their successors, and solely in their roles as insurers, “Chubb”), (ii) any insurance policies issued
by Chubb and any rights, interests, benefits, proceeds, and claims thereunder shall not be nor
shall constitute DIP Collateral and shall not be subject to any liens granted pursuant to this Final
Order, and, further, the proceeds of any insurance policy issued by Chubb shall only be
considered to be DIP Collateral to the extent such proceeds are paid to the Debtors or their
estates (as opposed to a third party claimant) pursuant to the terms of any such applicable
insurance policy, and (iii) except as expressly provided in paragraph 21 of this Final Order
regarding the DIP Agent as loss payee under any of the Debtors’ insurance policies, nothing,
including the DIP Documents and/or this Final Order, alters or modifies the terms and conditions
of any insurance policies issued by Chubb and/or any agreements related thereto; provided,
however, that (a) Chubb shall only pay the proceeds of any insurance policy in accordance with
and pursuant to the terms of such insurance policy and any related agreements, (b) Chubb does
not have any independent duty to turn over or pay any insurance proceeds to the DIP Agent or
any liability to the DIP Agent related to any payment, and (c) nothing in the DIP Documents
and/or this Final Order requires Chubb to modify, endorse, or amend any insurance policies,
including adding any loss payees thereunder.
401. Effect of this InterimFinal Order. This InterimFinal Order shall constitute
findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052 and shall take effect
and be enforceable immediately upon execution hereof. For the avoidance of doubt, nothing in
this Final Order shall constitute approval or ratification of the Restructuring Support Agreement
and the Committee’s rights with respect to the Restructuring Support Agreement are fully
preserved.
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412. Retention of Jurisdiction. The Court retains jurisdiction with respect to all
matters arising from or related to the implementation of this InterimFinal Order.
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