EXHIBIT 10.3
Entered on Docket [court seal]
January 26, 2005
Gloria L. Franklin, Clerk
U.S. Bankruptcy Court
Signed and Filed: January 26, 2005
Van C. Durrer, II (CA State Bar No. 226693)
Glenn Walter (CA State Bar No. 220015) /s/ Thomas E. Carlson
Kurt Ramlo (CA State Bar No. 166856) -------------------------------
SKADDEN, ARPS, SLATE, MEAGHER Thomas E. Carlson
& FLOM LLP U.S. Bankruptcy Judge
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071
Telephone: (213) 687-5000
Facsimile: (213) 687-5600
KRamlo@Skadden.com
-and-
J. Gregory Milmoe
Kayalyn A. Marafioti
SKADDEN, ARPS, SLATE, MEAGHER
& FLOM LLP
Four Times Square
New York, New York 10036-6522
Telephone: (212) 735-3000
Facsimile: (212) 735-2000
Proposed Attorneys for Debtors and Debtors in Possession
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
San Francisco Division
In re ) Case Nos. 05-30145-TEC
) 05-30146-TEC
First Virtual Communications, Inc., )
and CUseeMe Networks, Inc., ) Chapter 11
)
Debtors. ) Jointly Administered
)
) INTERIM ORDER AUTHORIZING DEBTOR TO
) [I] OBTAIN POSTPETITION FINANCING
) SECURED BY LIENS ON PROPERTY OF THE
) ESTATES AND [II] SCHEDULE FINAL
) HEARING
)
) Hearing: January 26, 2005, 9:30 a.m.
) Place: U.S. BANKRUPTCY COURT
) Courtroom 23
) 235 Pine Street
) San Francisco, California
) Judge: Hon. Thomas E. Carlson
__________________________________________)
First Virtual Communications, Inc. ("FVC" or the "Debtor") and its wholly
owned subsidiary, CUseeMe Networks, Inc. ("CUseeMe") filed their "Emergency
Motion for
INTERIM ORDER AUTHORIZING DEBTOR TO [I] OBTAIN POSTPETITION FINANCING SECURED BY
LIENS ON PROPERTY OF THE ESTATES AND [II] SCHEDULE FINAL HEARING
Interim and Final Orders Authorizing Debtor to Incur Debtor-in-possession
Financing and Granting of Priming Liens" (the "DIP Motion") on or about January
26, 2005 pursuant to sections 363 and 364 of the United States Bankruptcy Code,
11 U.S.C. section 101 et seq. (the "Bankruptcy Code"), seeking interim and final
orders authorizing the Debtor to enter into debtor-in-possession financing
arrangements evidenced by (i) the Debtor In Possession Revolving Credit
Agreement, dated as of January 26, 2005, entered into among FVC and MTVP (First
Virtual Investments), LLC (the "DIP Lender") in a maximum principal amount not
to exceed $2,000,000 (the "Credit Agreement"), (ii) the Security Agreement,
dated as of January 26, 2005, among the Debtor and the DIP Lender (each of the
foregoing attached as Exhibits to the DIP Motion), (iii) other security
agreements referenced in Credit Agreement, and (iv) all other related
agreements, instruments and documents (collectively, the "DIP Financing
Documents").
Pursuant to the DIP Motion, FVC seeks authority, pursuant to sections 105,
362, 363 and 364(c) and (d) of the Bankruptcy Code and Bankruptcy Rule 4001(c),
inter alia, on an interim basis until the final hearing (i) for the Debtor to
obtain extensions of credit pursuant to the DIP Financing Documents (the "DIP
Financing"), (ii) for the Debtor to grant first priority Liens (as defined
below) on substantially all of the Debtor's assets as security for the DIP
Financing, and (iii) for the Debtor to grant super priority administrative claim
status in respect of the DIP Financing. As used herein, "Liens" shall mean ,
with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
encumbrance, charge or security interest in or on such asset, (b) the interest
of a vendor or a lessor under any conditional sale agreement, capital lease or
title retention agreement (or any financing lease having substantially the same
economic effect
[PROPOSED] INTERIM ORDER AUTHORIZING DEBTOR TO [I] OBTAIN POSTPETITION FINANCING
SECURED BY LIENS ON PROPERTY OF THE ESTATES AND [II] SCHEDULE FINAL HEARING
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as any of the foregoing) relating to such asset, and (c) in the case of
securities, any purchase option, call or similar right of a third party with
respect to such securities.
UPON THE RECORD OF THE HEARING HELD BEFORE THIS COURT ON JANUARY 26, 2005
FOR CONSIDERATION OF THE DIP FINANCING MOTION (THE "INTERIM HEARING"), THE COURT
HEREBY MAKES THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:
A. On January 20, 2005 (the "Petition Date"), the Debtor filed voluntary
chapter 11 petition under the Bankruptcy Code. No trustee or examiner has been
appointed. Pursuant to Bankruptcy Code sections 1107(a) and 1108, the Debtor is
authorized to operate its businesses as debtor-in-possession.
B. The Debtor, its subsidiary and Silicon Valley Bank ("SVB"), are parties
to that certain Loan and Security Agreement, Schedule to Loan and Security
Agreement, Intellectual Property Security Agreement, and Cross-Corporate
Continuing Guaranty, all dated as of April 3, 2003, as amended, restated or
otherwise modified (collectively with other related documents, the "SVB Loan
Agreement"). The Debtor and certain service providers (the "Service Providers")
entered into a Services, Payment & Security Agreement dated September 29, 2004
and a Subordination Agreement effective as of August 19, 2004 in favor of SVB
(collectively with other related documents, the "Services Agreement"). Together,
SVB and the Service Providers are the "Prepetition Lenders." As of the Petition
Date, the SVB is owed loan principal obligations incurred by the Debtor and
interest, fees and expenses under the SVB Loan Agreement, together with
reimbursement obligations (either contingent, or fully due and payable) relating
to letters of credit issued and outstanding under the SVB Loan Agreement, and
[PROPOSED] INTERIM ORDER AUTHORIZING DEBTOR TO [I] OBTAIN POSTPETITION FINANCING
SECURED BY LIENS ON PROPERTY OF THE ESTATES AND [II] SCHEDULE FINAL HEARING
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the Service Providers are owed obligations (either contingent, or fully due and
payable) relating to services provided (collectively, the "Prepetition
Indebtedness"). To secure the Prepetition Indebtedness, the Debtor granted to
the Prepetition Lenders security interests and liens (the "Prepetition Liens")
on substantially all the assets of the Debtor (the "Prepetition Collateral").
C. The Debtor has requested that the DIP Lender provide the DIP Financing
in accordance with the terms of the DIP Financing Documents.
D. Without the funds provided by the DIP Financing, the Debtor would be
unable to effectively operate during the pendency of the Chapter 11 Cases. The
Debtor requires immediate financing to meet working capital requirements until
such time as final hearing is held on the DIP financing (the "Interim Period").
E. The Debtor is unable to obtain the financing that is contemplated by
the DIP Financing on (i) an unsecured basis under Bankruptcy Code sections
364(a) or 364(b), (ii) a junior secured basis under Bankruptcy Code section
364(c)(3), or (iii) any basis, other than an arrangement that secured the DIP
Financing with priming Liens as described in this Order (the "Priming Liens").
F. The Debtor have provided adequate protection to the Prepetition Lender
for, among other things, the Priming Liens on the Prepetition Collateral,
pursuant to a "Stipulation For Use of Cash Collateral And For Adequate
Protection Secured by Lien on Property of the Estate" dated January 20, 2005
(the "Cash Collateral Stipulation").
G. The DIP Lender's discretion to provide the DIP Financing on the terms
of the applicable DIP Financing Documents is predicated upon this Court entering
an order satisfactory to the DIP Lender approving the DIP Financing Documents
and granting such Liens, security
[PROPOSED] INTERIM ORDER AUTHORIZING DEBTOR TO [I] OBTAIN POSTPETITION FINANCING
SECURED BY LIENS ON PROPERTY OF THE ESTATES AND [II] SCHEDULE FINAL HEARING
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interests and priorities to, or for the benefit of, the DIP Lender as are set
forth herein with respect to all obligations of the Debtor to the DIP Lender
under the DIP Financing Documents (the "DIP Financing Obligations"), including
the granting of the Priming Liens.
H. The Debtor will receive and benefit from the DIP Financing authorized
herein. The DIP Financing is necessary to fund the businesses of the Debtor and
will contribute to payment of the actual and necessary costs and expenses of
preserving their estates.
I. Based on the record of the Interim Hearing and the declarations
attached to the DIP Motion, the financing arrangements contemplated by DIP
Financing Documents and approved herein is the product of arms' length
negotiation and is entered into by the DIP Lender in good faith, as the term
"good faith" is used in section 364(e) of the Bankruptcy Code.
J. The ability of the Debtor to continue in business so that they can
attempt to reorganize under the Bankruptcy Code depends on obtaining the relief
sought herein.
K. Entry of this Order on an interim basis is necessary to avoid immediate
and irreparable harm to the estates pending a final hearing pursuant to
Bankruptcy Rule 4001(c) (the "Final Hearing").
L. Notice of the relief requested pursuant to the DIP Motion, including a
sufficient description of the terms of the DIP Financing, has been given to,
inter alia, the United States Trustee, counsel to the DIP Lender, counsel to the
Prepetition Lender, and the creditors scheduled on the Debtor's lists filed
pursuant to Bankruptcy Rule 1007(d). No additional parties need be given notice
pursuant to Bankruptcy Code sections 364(c) and 364(d) and Bankruptcy Rule
4001(c). Each of the DIP Financing Documents constitutes an "agreement" as used
in Bankruptcy Rule 4001(c).
[PROPOSED] INTERIM ORDER AUTHORIZING DEBTOR TO [I] OBTAIN POSTPETITION FINANCING
SECURED BY LIENS ON PROPERTY OF THE ESTATES AND [II] SCHEDULE FINAL HEARING
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M. No further notice of or hearing on the interim relief sought pursuant
to the DIP Motion is required. This Court has jurisdiction over these cases and
the parties and property affected hereby pursuant to 28 U.S.C. Sections
157(b)(2)(D) and 1334.
N. Good, adequate and sufficient cause has been shown to justify the
granting of the interim relief requested.
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
1. The DIP Financing Documents are hereby approved on an interim basis
subject to the terms and conditions hereinafter set forth. Subject to a final
hearing, the Debtor is hereby authorized during the Interim Period to obtain
extensions of credit pursuant to the DIP Financing Documents in an amount not to
exceed $750,000 in accordance with the Budget attached hereto as Exhibit 1.
2. If any or all of the provisions of this Order are hereafter reversed,
modified, vacated or stayed by subsequent order of this Court (including in
connection with the Final Hearing) or any other court, such reversal, stay,
modification or vacatur shall not affect (a) the validity and enforceability of
any DIP Financing Obligation, debt or claim incurred, (b) any priority that is
or was granted, or (c) any remedy that is granted pursuant to the DIP Financing
Documents or this Order. Notwithstanding any stay, reversal, modification or
vacatur of this Order, any DIP Financing Obligations arising prior to the
effective date of such stay, reversal, modification or vacatur shall be governed
in all respects by the original provisions of this Order and the DIP Financing
Documents. The DIP Lender shall be entitled to all of its respective rights,
privileges and benefits hereunder and to the extent set forth under the DIP
Financing Documents, including, without limitation, the priorities, rights and
remedies granted herein and
[PROPOSED] INTERIM ORDER AUTHORIZING DEBTOR TO [I] OBTAIN POSTPETITION FINANCING
SECURED BY LIENS ON PROPERTY OF THE ESTATES AND [II] SCHEDULE FINAL HEARING
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therein to or for its benefit with respect to all DIP Financing Obligations
owing to it, and the priority granted therefor as set forth herein under
Bankruptcy Code sections 364(c)(1) and 364(d)(1).
3. Pursuant to Bankruptcy Rule 4001(c), the Final Hearing on the DIP
Motion shall be held on February 14, 2005 at 11:00 a.m. Notice of the Final
Hearing shall be served, without limitation, on the counsel identified on the
attached notice list and all parties whose rights are directly effected by the
DIP Financing Documents, this Order and/or the final proposed order for entry at
the Final Hearing. Objections, if any, to the DIP Motion shall be filed with
this Court and served on (a)(i) the United States Trustee, (ii) counsel for the
Debtor, (iii) counsel for the Prepetition Lender (iv) counsel for the DIP
Lender, in each case, at the addresses on the attached notice list and (b) all
parties who have requested service thereof, such that objections are received no
later than February 9, 2005. If no objections have been received, a final order
may be entered without further hearing or notice dates.
4. The Debtor is authorized to obtain the DIP Financing pursuant to the
terms of the DIP Financing Documents subject to the terms of this Order.
5. The Debtor is hereby (i) authorized to execute and deliver the DIP
Financing Documents and all other documents necessary or desirable to implement
the DIP Financing (through one or more officers designated by it), (ii)
authorized to grant the security interests and Liens granted in the DIP
Financing Documents, (iii) authorized to effect all transactions and take any
actions provided for in the DIP Financing Documents or deemed appropriate by the
DIP Lender to effectuate the terms and conditions of the DIP Financing Documents
and this Order, including, without limitation, the payment of any and all
reasonable fees, costs, charges,
[PROPOSED] INTERIM ORDER AUTHORIZING DEBTOR TO [I] OBTAIN POSTPETITION FINANCING
SECURED BY LIENS ON PROPERTY OF THE ESTATES AND [II] SCHEDULE FINAL HEARING
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commissions and expenses, including reasonable counsel fees (including
reasonable time charges of in-house counsel), payable under the DIP Financing
Documents or this Order, and (iv) authorized to comply with all provisions of
the DIP Financing Documents, including, without limitation, the payment and
satisfaction in full of all DIP Financing Obligations when due in accordance
with the terms of the DIP Financing Documents.
6. The DIP Financing Obligations shall be entitled to the following
protections, Liens and priorities: (a) pursuant to Bankruptcy Code sections
364(c) and 364(d), the DIP Financing Obligations shall be secured by valid and
perfected first priority priming Liens on all property of the Debtor's estate of
every kind and nature, whether real or personal, including, without limitation,
all goods (including inventory, equipment and any accessions thereto),
instruments (including promissory notes), documents, accounts, chattel paper
(whether tangible or electronic), deposit accounts, letter-of-credit rights,
commercial tort claims, securities and all other investment property, supporting
obligations, any other contract rights or rights to the payment of money,
insurance claims and proceeds, all real estate interests, all general
intangibles (including all payment intangibles) and all intellectual property,
in each case wherever located, whether now owned or hereafter acquired or
arising and all proceeds and products thereof, but not avoidance power claims
and proceeds of avoidance power claims arising under the Bankruptcy Code (the
"Collateral"), which Liens, subject to the Carve Out (as defined below), shall
be senior to all other Liens other than (and in such case immediately junior to)
the Other Prepetition Liens (as defined below); and (b) all DIP Financing
Obligations (including, but not limited to, the obligation to pay principal,
interest, professional fees, costs, charges, commissions and expenses) shall be
paid as provided in the DIP Financing Documents when due, without
[PROPOSED] INTERIM ORDER AUTHORIZING DEBTOR TO [I] OBTAIN POSTPETITION FINANCING
SECURED BY LIENS ON PROPERTY OF THE ESTATES AND [II] SCHEDULE FINAL HEARING
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defense, offset, reduction or counterclaim, and shall constitute allowed
superpriority claims to the full extent thereof against the Debtor arising under
Bankruptcy Code section 364(c)(1), with priority for such claims over any and
all administrative expenses (other than the Carve Out) of the kind specified or
ordered pursuant to any provision of the Bankruptcy Code, including, but not
limited to, Bankruptcy Code sections 105, 328, 330, 331, 503(b), 507(a) and
507(b). Except to the extent of the Carve Out, the DIP Financing Obligations
shall at all times be senior, in this and any subsequent case under the
Bankruptcy Code, to the rights of the Debtor, any successor trustee, any secured
claims of any creditor or other entity, and any unsecured claims of any creditor
or other entity. No cost or expense of administration or any claims in these
cases, including those resulting from or incurred after any conversion of these
cases pursuant to Bankruptcy Code section 1112 shall (except to the extent of
the Carve Out) rank prior to, or on parity with, the DIP Financing Obligations.
The security interests and Liens granted to DIP Lender shall not now or at any
time hereafter be subject to any Lien or security interest that is avoided and
preserved for the benefit of the Debtor' estates under Bankruptcy Code section
551.
7. As used herein, "Other Prepetition Liens" means the pre-petition liens
and security interests (exclusive of those in respect of the SVB Loan Agreement
or the Services Agreement) which are (i) valid, perfected, and senior to the
Prepetition Liens and (ii) not avoidable.
8. As used herein, "Carve Out" shall mean (i), following the occurrence
and during the pendency of a default under the DIP Financing Documents, the Cash
Collateral Stipulation or this Order, (A) the payment of (x) allowed
professional fees and disbursements incurred by the professionals retained,
pursuant to 11 U.S.C. Sections 327, 328(a), or 1103(a), by the
[PROPOSED] INTERIM ORDER AUTHORIZING DEBTOR TO [I] OBTAIN POSTPETITION FINANCING
SECURED BY LIENS ON PROPERTY OF THE ESTATES AND [II] SCHEDULE FINAL HEARING
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Debtors and any creditors' committee ("Committee") appointed in the Cases and
(y) the expenses of any member of any such Committee allowed under 11 U.S.C.
Section 503(b)(3)(F), in an aggregate amount not to exceed $250,000 (plus
professional fees and disbursements previously incurred, accrued, or invoiced
before delivery of a Default Notice (defined below) to the extent previously or
subsequently allowed), and (B) quarterly fees required to be paid, pursuant to
28 U.S.C. Section 1930(a)(6) and any fees payable to the clerk of the Bankruptcy
Court, and (ii) the payment of any allowed success fees ("Success Fees") payable
to any professional retained, pursuant to 11 U.S.C. Sections 327, 328(a), or
1103(a), by the Debtors and any Committee upon the consummation of a transaction
by the Debtors or in connection with the Debtors' estates for consideration
sufficient to pay the DIP Lender in full except that the DIP Lender agrees to
payment of a success fee earned by Gordian Group up to $250,000 less fifty
percent of the aggregate hourly fees actually paid to Gordian provided that the
DIP Lender receives a 90% or more recovery and that the DIP Lender or its
affiliates are not a credit bid purchaser for their own account in such
transaction; provided that notwithstanding the occurrence and continuance of a
default, no fees or disbursements shall be charged against the Carve-Out before
the delivery (by hand, telecopy, or overnight delivery) to the Debtors' counsel
and counsel to any Committee of a notice (a "Default Notice") by SVB of a
Debtor's noncompliance with the terms of the Cash Collateral Stipulation or by
the DIP Lender of a Debtor's noncompliance with the terms of the DIP Financing
Documents, and the triggering of the Carve-Out. So long as no Default Notice
shall have been delivered, the Debtors shall (i) pay compensation and
reimbursement of expenses, allowed under 11 U.S.C. Sections 330 and 331 or
payable pursuant to an order of this Court, as the
[PROPOSED] INTERIM ORDER AUTHORIZING DEBTOR TO [I] OBTAIN POSTPETITION FINANCING
SECURED BY LIENS ON PROPERTY OF THE ESTATES AND [II] SCHEDULE FINAL HEARING
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same may be payable, and the amount so paid shall not reduce the Carve-Out and
(ii) make payment of any Success Fees, and the amount so paid shall not reduce
the Carve-Out.
9. Other than (i) Liens granted pursuant to this Order, (ii) Liens
permitted under the terms of the DIP Financing Documents (including Liens
granted pursuant to the Cash Collateral Stipulation), (iii) Liens existing on
the Petition Date and (iv) Liens that relate back to the Petition Date that may
be perfected pursuant to Bankruptcy Code section 362(b)(3), no Liens or security
interests shall attach to any property of the Debtor's estate in this or any
successor case under the Bankruptcy Code unless either (a) the DIP Lender give
their express written consent, or (b) all DIP Financing Obligations have been
paid in full in cash and all commitments shall have terminated under the DIP
Financing Documents (the "Discharge").
10. Other than (i) indebtedness permitted by this Order and the Cash
Collateral Stipulation or (ii) indebtedness, the proceeds of which are used
first to satisfy in full all DIP Financing Obligations, no indebtedness shall be
incurred by the Debtor in this or any successor case under the Bankruptcy Code
unless or until (a) the DIP Lender give their express written consent, or (b)
the Discharge.
11. The Debtor is authorized to pay any and all fees and expenses of
advisors and counsel to the DIP Lender incurred prior to and on and after the
Petition Date.
12. During the period in which the Debtor is authorized to use cash
collateral or borrow funds pursuant to this Order, no cost or expense,
including, but not limited to, any cost or expense of administration of the
Chapter 11 Cases or any future proceeding that may develop out of such cases,
including liquidation in Chapter 7 under the Bankruptcy Code, (other than the
Carve Out), shall be charged by the Debtor against their property pursuant to
Bankruptcy Code
[PROPOSED] INTERIM ORDER AUTHORIZING DEBTOR TO [I] OBTAIN POSTPETITION FINANCING
SECURED BY LIENS ON PROPERTY OF THE ESTATES AND [II] SCHEDULE FINAL HEARING
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section 506(c) or otherwise, without the prior written consent of the DIP
Lender, and no such consent shall be implied from any action, inaction or
acquiescence by the DIP Lender.
13. The security interests and Liens in the Collateral granted to the DIP
Lender herein are valid and fully perfected by entry of this Order, and the DIP
Lender shall not be required to file any financing statement, mortgage, deed of
trust, assignment of rents, fixture filing, notice of lien or similar instrument
in any jurisdiction or take any other action in order to validate, perfect or
otherwise enforce the security interests or Liens created hereunder. If the DIP
Lender or its agent or representative chooses, each in its sole discretion, to
file financing statements or other documents or otherwise confirm perfection of
such security interests and Liens in the Collateral, the automatic stay of
Bankruptcy Code section 362 is hereby modified to allow such actions, and all
such documents shall be deemed to have been filed or recorded on the date of
entry of this Order. The DIP Lender and any agent for the DIP Lender is each
hereby authorized to file this Order as evidence of its security interests and
Liens in lieu of a financing statement or similar filing.
14. The DIP Lender, having been found to be a lender in good faith, shall
be entitled to the full protection of Bankruptcy Code section 364(e) and the
claims, Liens and priorities created or authorized in this Order, and the DIP
Financing Documents are so created and authorized pursuant to Bankruptcy Code
sections 364(c) and (d) and are entitled to the benefits and protections of
Bankruptcy Code section 364(e).
15. Notwithstanding any otherwise applicable law, the DIP Lender and any
agent for the DIP Lender is entitled to all of the rights, benefits, privileges
and remedies set forth or provided herein or to the extent set forth in the DIP
Financing Documents, including, but not
[PROPOSED] INTERIM ORDER AUTHORIZING DEBTOR TO [I] OBTAIN POSTPETITION FINANCING
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limited to all of the rights, benefits, privileges and remedies (subject to
paragraph 17 below) available to the DIP Lender and any agent for the DIP Lender
upon the occurrence and during the continuance of a default (as defined herein).
As used in this Order, "default" means any of the following: (a) failure by
First Virtual to make any payment to the DIP Lender under the Credit Agreement,
(b) entry of any order dismissing any of the Chapter 11 Cases or converting any
of the Chapter 11 Cases to a case under Chapter 7 of the Bankruptcy Code, unless
consented to by the DIP Lender, (c) the appointment of a Chapter 11 trustee or
examiner with expanded powers, unless consented to by the DIP Lender, (d) the
seeking by the Debtor of any of the foregoing relief, (e) failure by the Debtor
to perform any obligation under this Order or any of the DIP Financing
Documents, (f) any Event of Default as defined in the Credit Agreement or (g)
any Event of Default as defined in the Cash Collateral Stipulation.
16. Upon the occurrence of a default and following the giving of five
business days' notice to the Debtor, the Creditors' Committee and the United
States Trustee, the DIP Lender shall have relief from the automatic stay and may
exercise all rights, benefits, privileges and remedies (including foreclosure on
all or any portion of the Collateral) available to the DIP Lender under this
Order, any of the DIP Financing Documents or applicable non-bankruptcy law.
During such five-business-day notice period, the Debtor shall be entitled to an
emergency hearing with this Court to determine whether such relief from the
automatic stay is appropriate under the circumstances. Unless, during this
period, the Debtor obtains an order of this Court to the effect that the DIP
Lender remains subject to the automatic stay, the automatic stay, as to the DIP
Lender, shall automatically terminate at the end of such notice period.
[PROPOSED] INTERIM ORDER AUTHORIZING DEBTOR TO [I] OBTAIN POSTPETITION FINANCING
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17. No failure or delay on the part of the DIP Lender or any agent for the
DIP Lender in the exercise of any power, right or privilege under any DIP
Financing Document shall impair such power, right or privilege or be construed
to be a waiver of any default or acquiescence therein, nor shall any single or
partial exercise of any such power, right or privilege. All rights and remedies
existing under the DIP Financing Documents are cumulative to, and not exclusive
of, any rights or remedies otherwise available.
18. The provisions of this Order, including the priority and validity of
all claims and Liens in favor of the DIP Lender, and any actions taken pursuant
hereto shall survive entry of any other order which may be entered in these
cases, including any order (i) confirming any plan of reorganization, (ii)
converting these cases from Chapter 11 to Chapter 7, (iii) appointing a trustee
or examiner, or (iv) dismissing the cases, and the terms and provisions of this
Order, as well as the priorities in payment granted pursuant to this Order, and
the DIP Financing Documents shall continue in full force and effect
notwithstanding the entry of any such other order, until the Discharge.
19. None of the DIP Lender or any agent for the DIP Lender shall have any
liability to any third party, and shall not be deemed to be in control of the
operations of the Debtor, or to be acting as a "responsible person" or managing
agent with respect to the operation or management of the Debtor.
20. Notwithstanding the possible applicability of Fed. R. Bankr. P.
6004(g), 7062, 9014, or otherwise, the terms and conditions of this Order shall
be immediately effective and enforceable upon its entry.
[PROPOSED] INTERIM ORDER AUTHORIZING DEBTOR TO [I] OBTAIN POSTPETITION FINANCING
SECURED BY LIENS ON PROPERTY OF THE ESTATES AND [II] SCHEDULE FINAL HEARING
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21. In the event of any conflict between the terms of this Order and the
Cash Collateral Stipulation, or between the terms of this Order and the Credit
Agreement, the terms of this Order shall control. Pending entry of a final
order, all parties reserve their rights to object to any provision of this Order
or entry of a final order, subject to 11 U.S.C. Section 364(e).
This Court retains and reserves jurisdiction to enforce all provisions of
this Order.
**END OF ORDER**
[PROPOSED] INTERIM ORDER AUTHORIZING DEBTOR TO [I] OBTAIN POSTPETITION FINANCING
SECURED BY LIENS ON PROPERTY OF THE ESTATES AND [II] SCHEDULE FINAL HEARING
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