Final Order (I) Authorizing The Debtors — In re Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS) (Jointly Administered)

Source document: Final Order (I) Authorizing The Debtors; document type: bankruptcy-order.

Full text

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 Administered)

)
Re:  Docket Nos. 12 & 103

FINAL 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) 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 the United States Bankruptcy
Court for the District of Delaware (the “Local Rules”), seeking entry of this final order (this “Final
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

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).
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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 were fully funded upon entry of the 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 to
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 was deemed funded in accordance with clause (i) below on the date of
the entry of the Interim Order, and (y) up to an additional $60,000,000 will be
deemed funded in accordance with clause (ii) below, and an equal amount of First
Lien Term Loans (as defined below) was, 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 the 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 were 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 were deemed funded on the date of the Interim Order, without
constituting a novation, which 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 the Interim Order were 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 the 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
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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)
On 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”) were 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 were deemed to have ratably assumed an amount
of Roll-Up Loans from each Existing Roll-Up Lender and (2) each
Syndicate Lender on such date were 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 were 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) 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
were reallocated and assigned accordingly.

(ii)
authorizing the DIP Borrowers and the DIP Guarantors to (a) enter
into and perform under that certain Senior Secured Super-Priority Term Loan
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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 the Interim Order,
this 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, the
Interim Order, and this 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);

(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 Final 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”);

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(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)
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) providing that the “equities of the case” exception under section
552(b) of the Bankruptcy Code does 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 a final hearing
(the “Final Hearing”) on the Motion before this Court to consider entry of this Final Order,
among other things, (1) authorizing the Debtors to, on a final basis, borrow from the DIP
Lenders a principal amount of $180,000,000 in DIP Loans of which (I) $25,000,000 of
New Money Loans were made available to the DIP Borrowers upon entry of the Interim
Order, (II) $20,000,000 of New Money Loans were funded into an escrow account (the
“Escrow Account”) upon entry of the Interim Order and available to be drawn by the DIP
Borrowers 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 the
entry of, and in accordance with, this Final 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 Final 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)
granting related relief.

The interim hearing on the Motion 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
Declaration of Michael Schlappig in Support of the Motion for Entry of Interim and Final Orders
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(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 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], and the 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 Final
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 final relief requested
in the Motion is necessary to avoid immediate and irreparable harm to the Debtors and their estates,
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
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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;
BASED UPON THE RECORD ESTABLISHED AT THE FINAL 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.

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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D.
Committee.  On June 26, 2024, the Office of the United States Trustee for the
District of Delaware (the “U.S. Trustee”) appointed an official committee of unsecured creditors
pursuant to section 1102 of the Bankruptcy Code (the “Committee”).
E.
Notice.  Notice of the Motion and the Final Hearing has been provided in
accordance with the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules, and no other
or further notice of the Motion with respect to the relief requested at the Final Hearing is or shall
be required.  The final relief granted herein is necessary to avoid immediate and irreparable harm
to the Debtors and their estates, 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 Final Order (and subject to the limitations thereon contained in
such paragraph or otherwise in this Final 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
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“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 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) 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 $1,463,162.00 on account of certain outstanding fees owed
to the Prepetition First Lien Revolving Lenders and reimbursement obligations with respect to
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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”);
provided that, for the avoidance of doubt, no interest, default interest, additional fees, penalties, or
other costs shall accrue on the Prepetition First Lien Revolving Loan Obligations and the
Prepetition First Lien Revolving Loan Obligations 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 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,
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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 “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
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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 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
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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.
(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
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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 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
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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 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
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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”).
(ix)
Validity, Perfection, and Priority of Prepetition Liens and Prepetition
Obligations.  Each 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
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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, 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
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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) remain in full force and effect,
and (ii) not be deemed to be amended, altered or modified by the terms of this Final 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.
(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

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
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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) 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 Final Order
and the DIP Documents.

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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(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 Final Order or any provision hereof 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 Final Order shall be governed in all respects
by the original provisions of this Final 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 Final Order (and subject to the limitations thereon contained in such
paragraph or otherwise in this Final 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
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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 (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 Final Order, the Debtors’ incurrence of the DIP Facility, and
proposed use of Cash Collateral on the terms and conditions set forth in this Final Order, including,
without limitation, the terms of the adequate protection provided for in this Final Order.
H.
Good Cause Shown; Best Interest.  Good cause has been shown for entry of this
Final Order, and entry of this Final 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 Final 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 Final Hearing 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 Final Hearing complies with Bankruptcy Rules 2002, 4001(b) and (c), and 9014 and applicable
Local Rules.
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J.
Arm’s Length, Good Faith Negotiations.  The terms of this Final 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 Final 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,
IT IS HEREBY ORDERED THAT:
1.
DIP Financing Approved.  The Motion is granted on a final basis as set forth herein,
the DIP Facility is approved on a final basis, and the use of Cash Collateral on a final basis is
authorized, subject to the terms of this Final Order.
2.
Objections Overruled.  Any objections, reservations of rights, or other statements
with respect to entry of this Final Order, to the extent not withdrawn or resolved, are overruled on
the merits.  This Final Order shall become effective immediately upon its entry.
3.
Authorization of the DIP Facility and the DIP Documents.
(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 Final 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
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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 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 Final 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.  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 Final Order.  Upon execution and delivery thereof, 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
Final Order, the terms and conditions of this Final Order shall govern and control.
(b)
Upon entry of this Final 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 $180,000,000 of DIP Loans (inclusive of the Roll-Up Loans), of which
(i) $25,000,000 of New Money Loans were made available to the DIP Borrowers upon entry of
the Interim Order, (ii) $20,000,000 of New Money Loans were funded into the Escrow Account
upon entry of the Interim Order and available to be drawn by the DIP Borrowers 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 Final Order, subject to and in accordance
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with the Carve-Out and this Final Order, without any further action by the Debtors or any other
party.
(c)
In accordance with the terms of this Final Order and the DIP Documents,
proceeds of the DIP Loans shall be used solely for the purposes permitted under the DIP
Documents and this Final Order, and in accordance with the Approved DIP Budget, subject to the
Carve Out and any Permitted Variance, as set forth in this Final Order and the DIP Documents.
Attached as Exhibit B to 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”).
(d)
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 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 Final Order (in the
case of (i) the DIP/First Lien Advisors and the DIP Agent Advisors whether
incurred before or after the Petition Date 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
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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 Final Order; and
(4)
the performance of all other acts required under or in connection with the
DIP Documents, including, without limitation, pursuant to the Escrow
Agreement.
(e)
Subject to the Carve Out and the rights of parties in interest specifically set
forth in paragraph 12 of this Final Order (and subject to the limitations thereon contained in such
paragraph or otherwise in this Final Order), such DIP Documents, the DIP Obligations, and the
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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 Final 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
Final 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 Final 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 Bankruptcy
Code.  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 Escrow Account 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
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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.
(f)
The DIP Guarantors are hereby authorized and directed to jointly, severally,
and unconditionally guarantee, and upon entry of this Final 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 had 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 was approved by, and was 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 to the Interim Order was approved
by and reasonably satisfactory to the Required DIP Lenders).
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(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, 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 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 Final 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 five (5) 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.”
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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, 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 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
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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 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
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the Approved DIP Budgets with respect to such period (the “Budget Variances”; all references in
this Final 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.
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
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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, 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, 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
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“Unencumbered Claims”) before seeking recovery from proceeds of such Unencumbered Claims
with respect to such DIP Superpriority Claims.  Except as set forth in this 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 Final 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 as
the “DIP Collateral”), subject only to (x) Prior Senior Liens, (y) the Excluded Assets (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 Final 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
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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 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 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 Final 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
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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 Final 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 Final Order (and subject to the
limitations thereon contained in such paragraph or otherwise in this Final Order), and the terms of
this Final 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
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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”):
(a)
First 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 Final 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 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 Final 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
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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
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), 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
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this Final 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 Final Order, including, for
the avoidance of doubt, of (i) the DIP/First Lien Advisors, 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.  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 Final 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
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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 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
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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 Final Order (and subject to the limitations
thereon contained in such paragraph or otherwise in this Final 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 Loan Secured Parties
and the Prepetition First Lien Notes Secured Parties pursuant to paragraph 8 of this Final 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.
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 Final Order (and subject to the limitations thereon contained in such paragraph
or otherwise in this Final Order, and (ii) paragraph 9(c) below, the First Lien Adequate Protection
Obligations, and the terms of this Final 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
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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 Final 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 all proceeds or property 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 Final 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
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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 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), 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
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authorized and directed to pay, in accordance with the terms of paragraph 18 of this Final 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 Final 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 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 pursuant to section 327, 328,
or 1103 of the Bankruptcy Code (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
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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
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, 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

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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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 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
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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
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 Final 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.  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
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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 Escrow Account prior to the Termination Declaration Date and any such remaining DIP
Loans held in the Escrow Account 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 Escrow Account 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
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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 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 Final 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 Final 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
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Agreements.  Further, notwithstanding anything to the contrary in this Final 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 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 Final Order, the DIP Documents, 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 Secured Parties shall be responsible for the payment or
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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 or any successor cases
under any chapter of the Bankruptcy Code.  Nothing in this Final 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.  Except as set forth in paragraph 10 of this Final Order, the Carve Out shall
not constitute DIP Obligations, 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 Final 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 Final
Order or the DIP Documents to the contrary, the entry of this Final 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 Final Order and the DIP Documents; (b) any of the rights of the DIP Secured
Parties or the Prepetition First Lien Secured Parties under the DIP Documents, the Prepetition
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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 Final 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 Final 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, admissions, and waivers
contained in this Final Order, including, the Debtors’ Stipulations, shall be binding upon all other
parties in interest, including any committee and any other person acting on behalf of the Debtors’
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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 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 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
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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 Final 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 Final 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 Final Order, including the Debtors’ Stipulations,
shall nonetheless remain binding and preclusive on the 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 matter prior to the Challenge Period Termination Date.  Nothing
in this Final Order vests or confers on any person (as defined in the Bankruptcy Code), including,
without limitation, the Committee, standing or authority to pursue any cause of action belonging
to the Debtors or their estates, including, without limitation any challenges (including a Challenge)
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with respect to the Prepetition Documents, the Prepetition Liens, and the Prepetition Obligations,
and a separate order of the Court conferring such standing on the Committee or other party-in-
interest shall be a prerequisite for the prosecution of a Challenge by the 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 Final Order; (b) all authority to use Cash Collateral shall cease; provided, however, that during
the Remedies Notice Period (as defined below), the Debtors may use Cash Collateral solely to
fund the Carve Out, 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
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entitled to exercise rights and remedies under the DIP Documents in accordance with this Final
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 Final 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, the Committee, and the U.S. Trustee.  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, 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 Final Order, and following the expiration of the
Remedies Notice Period (defined below), (a) the DIP Agent (at the direction of the Required DIP
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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
Final Order to satisfy the DIP Obligations, 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 Final 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
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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 Final 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 DIP Documents, and
as otherwise available at law without further order of or application or motion to this Court
consistent with this Final Order.  Notwithstanding anything to the contrary in this Final Order,
following an Event of Default, the Prepetition Secured Parties shall be stayed from enforcing any
rights and remedies under this Final 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.  No expenses of
administration of the Cases or any future proceeding that may result therefrom, including
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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 Final Order
and solely in accordance with the Approved DIP Budget (subject to permitted variances as set
forth in this Final Order and the DIP Documents), including, without limitation, to make payments
on account of the Adequate Protection Obligations provided for in this Final Order, from the date
of this Final 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 Final 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
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Final Order, all to the extent provided in this Final 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 Final Order
(collectively, the “Lender Professionals” and, each, a “Lender Professional”) no later than seven
(7) business days (the “Review Period”) after the receipt by counsel for the Debtors, the
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-
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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, the 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, the
Committee, 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.
(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 Affiliates (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
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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.
19.
No Third Party Rights.  Except as explicitly provided for herein, this Final 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
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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.  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 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.
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 Final 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.
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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
Final 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 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 Final Order.
(b)
A certified copy of this Final 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 Final 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 Final 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
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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 Final Order,
subject to applicable law.
24.
Release.  Subject to the rights and limitations set forth in paragraph 12 of this Final
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, 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 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,
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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 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, the Interim
Order, and this Final Order.
25.
Credit Bidding.  Except as otherwise provided in the RSA, subject 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.
26.
Preservation of Rights Granted Under this Final 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 Final Order, or otherwise seek to
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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 Final 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 Final Order shall be governed in all respects by the original
provisions of this Final 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, unless 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 required lenders or
required noteholders), (x) any modification, stay, vacatur, or amendment of this Final 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
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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 Final 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 Final
Order shall continue in full force and effect and shall maintain their priorities as provided in this
Final 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 administrative claims granted pursuant to this Final
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 Final Order or in the DIP Documents,
and subject to the rights of parties in interest specifically set forth in paragraph 12 of this Final
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Order (and subject to the limitations thereon contained in such paragraph or otherwise in this Final
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 Final 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 Final 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
Final 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 Final 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
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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 Final 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 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 Final Order, including, without limitation, for the payment of any services rendered by the
professionals retained by the Debtors or the Committee 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,
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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
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
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related to the Prepetition Obligations or the Prepetition Liens, provided that no more than $125,000
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 the Committee 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
effect; provided that nothing in this Final 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 Final 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 committee 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
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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 Final 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 Final 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 Final Order or the DIP Documents, the
DIP Secured Parties and the Prepetition Secured Parties shall not, solely by 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 Final 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.
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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 Final
Order, or applicable law.  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.
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
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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 Final 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.  Except as otherwise set forth herein, the DIP Agent and the
DIP Secured Parties shall not be subject to the equitable doctrine 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 Final 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.
[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 the “equities of the case”
exception under section 552(b) of the Bankruptcy Code shall not apply to the Prepetition Secured
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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.
38.
[Reserved].
39.
Notwithstanding anything to the contrary contained in this Final Order, including,
without limitation, paragraphs 6, 7, 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 both the
Interim Order 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 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 securing the 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 Final Order on account of the Prepetition
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First Lien Revolving Loan Obligations, (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 Obligations, 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 Loan 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 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
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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.
41.
Effect of this Final Order.  This Final 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.
42.
Retention of Jurisdiction.  The Court retains jurisdiction with respect to all matters
arising from or related to the implementation of this Final Order.

BRENDAN L. SHANNON
UNITED STATES BANKRUPTCY JUDGE
Dated: July 11th, 2024
Wilmington, Delaware
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