EXHIBIT 2.2
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re :
: Case No. 98-661 (PJW)
:
PORTACOM WIRELESS, INC., : Chapter 11
:
:
Debtor. :
INTERIM ORDER AUTHORIZING DEBTOR
TO OBTAIN SECURED POST-PETITION FINANCING
PURSUANT TO 11 U.S.C. (S) 364(C)
--------------------------------
AND NOW, this __ day of _____, 1998, upon consideration of the Emergency
Motion of PortaCom Wireless, Inc. ("Debtor") to Obtain Secured Post-Petition
Financing Pursuant to 11 U.S.C. (S) 364(c) (the "Motion") and after a
preliminary hearing pursuant to Rule 4001(c)(2) of the Federal Rules of
Bankruptcy Procedure having been held before this Court on March 23, 1998, and
it appearing that the requested relief in the Motion is in the best interest of
the Debtor, its creditors and its estate, and is necessary to ensure the
continued operations and successful reorganization of the Debtor and after due
deliberation and good and sufficient cause appearing therefor, it is hereby
found, concluded and determined that:
1. Immediately prior to the hearing, notice of the Motion and hearing was
given to the U.S. Trustee, the secured creditors, and the 20 largest unsecured
creditors.
2. The Debtor is unable to obtain unsecured credit under Code (S)
503(b)(1) as an administrative expense.
3. The Debtor is unable to obtain "new" credit without: (i) granting to
VDC Corporation Ltd. ("VDC" or "Lender") claims having priority over that of
administrative
expenses of the kind specified in 11 U.S.C. (S)(S) 503(b), 506(c), and 507(b);
and (ii) securing such post-petition credit with a first-priority security
interest in and lien on substantially all property of the Debtor, as further
identified in the Motion and attached exhibits, limited only to the extent that
there exists perfected security interests in favor of other third parties.
4. Lender and Debtor have entered into an Asset Purchase Agreement dated
November, 1997, and amendments thereto (as amended, the "Purchase Agreement"),
whereby Lender agreed to purchase and Debtor agreed to sell the Securities, as
defined in the Debtor In Possession Loan, Security And Pledge Agreement between
Lender and the Debtor (the "DIP Financing Agreement"), in consideration of 5.3
million shares of the common stock of Lender plus $700,000.00 and which Purchase
Agreement has been superseded by an Asset Purchase Agreement entered into
between the parties post-petition (the "Transaction").
5. It is in the best interests of the Debtor's estate to permit the
Debtor to continue to finance its operations, the case and the Transaction,
under the terms and conditions set forth herein, so as to minimize and prevent a
disruption of its operations and to permit the Debtor to attempt to maximize the
value of its business and assets.
6. The DIP Financing Agreement attached to the Motion as Exhibit "G" was
negotiated in good faith and at arm's length by and between the Debtor and
Lender and any credit extended and loans made to the Debtor by Lender under the
DIP Financing Agreement were extended in good faith, within the meaning of Code
(S) 364(e), and the reversal or modification on appeal of this Order authorizing
Debtor to: (i) obtain such credit, or incur such debt, from Lender does not
affect the validity of either the credit obtained or the debt incurred;
-2-
and (ii) grant a priority claim, or lien, to Lender does not effect the extent,
validity, priority or enforceability of the claim and lien so granted.
7. Prior to the commencement of the case, Debtor and Lender entered into
a Loan Agreement dated November 10, 1997, whereby Lender agreed to extend a loan
to Debtor in the principal amount not to exceed $700,000.00 (the "Loan"). Prior
to the commencement of the case, Lender extended $366,725.00 to Debtor under the
Loan, which advances are evidenced by Credit Notes in the principal amount of
$366,725.00 (collectively, the "Credit Notes"), together with any and all
accrued and unpaid interest, costs and fees, including attorneys' fees (the
"Pre-Petition Indebtedness").
8. The Debtor, for itself, its creditors and its estate, ratified and
confirmed for the benefit of Lender, its successors and assigns, the full extent
of the Pre-Petition Indebtedness, the enforceability of the Loan Agreement,
Security Agreement, and Pledge Agreement, dated November 10, 1997 and the Credit
Notes (collectively the "Pre-Petition Loan Documents") in accordance with their
respective terms, and the extent, validity, priority, enforceability and
perfection of Lender's lien on and interest in and to those certain warrants to
purchase 4,000,000 shares of common stock of Metromedia Asia Corporation (the
"Warrants"). The Debtor acknowledged and confirmed that it has no defenses,
counterclaims, set-offs, recoupments or other claims or rights to disallow, in
whole or in part, the Pre-Petition Indebtedness or Lender's lien on and interest
in and to the Warrants, and no objection to the secured claim of Lender. Lender
holds an allowed secured claim to the full extent of the Pre-Petition
Indebtedness.
9. The Maturity Date of the loan authorized by this Order, the terms of
which are set forth in the DIP Financing Agreement (the "Post-Petition Loan") is
the earlier to occur (the
-3-
"Maturity Date") of: (i) the forty-fifth (45th) day following the entry of the
Order for Relief under Code (S) 301; or (ii) the date approved by the Court as
the sale or auction date of the Transaction; or (iii) April 30, 1998.
Notwithstanding anything herein or in the DIP Financing Agreement to the
contrary, the Maturity Date may be extended from time to time upon the written
consent of Lender, which consent shall be in Lender's absolute and sole
discretion, may be withheld without cause, and shall not constitute or be deemed
a waiver or cure of any Event of Default.
10. The Debtor has authority to borrow the Post-Petition Loan, to execute
and deliver the DIP Financing Agreement and any and all Notes executed in
connection with the Post-Petition Loan (the "Note(s)"), and any other
instruments and documents required to be executed in connection herewith and
therewith (such other instruments and documents being collectively called the
"Other Documents") without further Order of the Court.
11. The DIP Financing Agreement has been, and will be, validly executed
and delivered by the Debtor and is the legal, valid and binding obligation of
the Debtor, enforceable against the Debtor in accordance with its respective
terms.
12. The proceeds from the Post-Petition Loan shall be used by the Debtor
only for working capital purposes in the ordinary course of business, or in
connection with the case or the Transaction.
13. The Debtor has all right, title and interest in, and good and
marketable title to the Securities and Collateral, as defined in the DIP
Financing Agreement, free and clear of any claim, pledge, security interest,
restriction, lien or encumbrance of any kind or nature
-4-
whatsoever, except for the pre-petition lien to VDC and the Permitted Lien on
the Shares, as such term is defined in the Security Agreement.
14. The Debtor's other secured creditor(s) is/are adequately protected
from any adverse consequences which might result from the consummation of the
proposed post-petition secured financing between the Debtor and Lender.
15. The Debtor has acknowledged notice of the Lender's intention to, upon
the occurrence of an Event of Default or the Maturity Date, retain the Warrants
in satisfaction of the obligations of Debtor to Lender with respect to the Pre-
Petition Indebtedness and all obligations under the Post-Petition Loan and has
expressly waived its right to receive any further notice from Lender of its
intention to do so, either before or after the occurrence of any Event of
Default or the Maturity Date.
Accordingly, it hereby ORDERED, ADJUDGED and DECREED that:
1. The Motion is GRANTED.
2. The form of Notice of Final Hearing on the Debtor's Motion to Obtain
Secured Post-Petition Financing Pursuant to 11 U.S.C. (S) 364(c) attached as
Exhibit "H" to the Motion is APPROVED.
3. The Debtor is authorized and directed to do and perform all acts, to
make, execute, and deliver all instruments and documents which may be required
or necessary for the performance by the Debtor under or in connection with the
DIP Financing Agreement and to pay all present and future fees, costs, expenses
and taxes which may be required or necessary for its performance thereunder
including, without limitation, the execution and delivery of the DIP
-5-
Financing Agreement and any other document related to or necessary for the
performance of the Debtor's obligations thereunder.
4. Pursuant to 11 U.S.C. (S) 364(c), Lender is granted a lien on all of
the Debtor's now owned and hereafter acquired property, including, without
limitation, all cash, accounts, accounts receivable, inventory, goods,
equipment, chattel paper, instruments, general intangibles, documents, and
Collateral, whether arising pre- or post-petition, and all proceeds and products
of all of the foregoing (hereinafter referred to as the "Post-Petition
Collateral") superior to any and all liens, including post-petition replacement
liens under Code (S)(S) 361 and 363 and claims under Code (S) 507(b) granted now
or in the future to another, and with priority over any and all administrative
expenses, whether now in existence or hereafter incurred, of the kind specified
in Code (S)(S) 503(b), 506(c), and 507(b) or otherwise, with respect to all of
the Debtor's obligations and indebtedness arising under the DIP Financing
Agreement, as and to the extent set forth in the DIP Financing Agreement. With
respect to property of the Debtor in which other creditors hold a valid and
perfected pre-petition interest, the pledge, lien and security interest granted
and pledged to Lender in accordance herewith shall have priority junior to other
creditors' interests in such property.
5. As additional security for the post-petition credit being extended to
the Debtor, Lender is hereby granted, pursuant to Code (S) 364(c), nunc pro tunc
as of March 23, 1998 (the "Petition Date"), and without the necessity of the
Debtor's execution or recordation of any financing statements, pledges,
mortgages, security agreements, or otherwise, or Lender's recordation with
respect to or possession of any of the Post-Petition Collateral, a first
priority
-6-
security interest in and lien on the Post-Petition Collateral, as more
particularly detailed in the Motion and the DIP Financing Agreement, all of
which are incorporated herein by reference.
6. Lender shall not be required to file financing statements or similar
instruments in any jurisdiction or take possession of the Post-Petition
Collateral any other action in order to validate or perfect the liens and
security interests granted to it pursuant to this Order. Lender may, however,
at its sole discretion, choose to file such instruments or otherwise confirm
perfection of such liens and security interests. Accordingly, the automatic
stay of Code (S) 362 is hereby modified to permit: (i) the Debtor to grant and
(ii) Lender to evidence the perfection of the liens and security interests
granted herein.
7. The Debtor is authorized and directed, at its sole expense, to permit
Lender access to the Debtor's books and records in accordance with the terms and
conditions of the DIP Financing Agreement, or as otherwise reasonably requested
by Lender.
8. The Debtor is authorized and directed to make such payments to Lender
as are required under the terms of the DIP Financing Agreement, including,
without limitation, reimburse Lender for any and all filing and recording fees,
title insurance premiums, reasonable internal and auditing examination fees, and
reasonable attorneys' fees, costs and expenses incurred by Lender in connection
with the negotiating, closing, documenting of the DIP Financing Agreement and
obtaining the Court's approval of same, without the necessity of application to
the Court; provided, however, that the reasonableness of such professional fees,
costs and expenses shall be subject to review by the Court upon motion by any
party in interest.
-7-
9. Lender is authorized to accrue interest on the post-petition credit
being extended hereunder in accordance with the terms and conditions of the DIP
Financing Agreement nunc pro tunc as of the Petition Date.
10. Lender is authorized to retain the Warrants in its possession
notwithstanding the provisions of 11 U.S.C. (S)(S) 542 and 543.
11. As additional "adequate protection" of Lender's interest in and lien
on the Post-Petition Collateral, the automatic stay provisions imposed by Code
(S) 362(a) are hereby modified so as to permit Lender to: (i) stop "funding" the
Debtor's operations upon default under the DIP Financing Agreement or this
Order; (ii) following three (3) business days' notice to Debtor, any committee
appointed by the U.S. Trustee and the U.S. Trustee, exercise all rights and
remedies set forth in the following paragraph 15.
12. Until repayment, in full, of any credit extended under the DIP
Financing Agreement, Debtor will not, without the prior approval of the Court
and prior notice to Lender: (i) allow any covenants, representations or
warranties set forth herein or in the DIP Financing Agreement to be breached or
to become materially untrue; (ii) engage in any transaction which is not in the
ordinary course of its business (any sale, lease, exchange, collection or other
disposition (any of which is a "Disposition") of the Post-Petition Collateral);
(iii) engage in new or different business activities; (iv) invest whether by
purchase, lease, or otherwise, in fixed or capital assets; or (v) create,
assume, or suffer to exist any lien on security interest, in favor of any person
other than Lender except: (x) liens or security interests existing as of the
date of the entry of this Order; or (y) liens expressly consented to in writing
by Lender.
-8-
13. In addition to the "Events of Default" under the Pre-Petition Loan
Documents and the DIP Financing Agreement, each of the following events shall
constitute an Event of Default hereunder and thereunder:
(a) The Debtor fails to pay when due any principal, interest or other
sums due hereunder or under any of the Notes.
(b) Except for Events of Default described in sub-paragraph (i)
hereof, the Debtor defaults in the observance or performance of
any condition or covenant contained in the DIP Financing Agreement
or any Note and the Debtor shall not have remedied the default
within fifteen (15) days after receipt of written notice of such
default has been given by Lender to the Debtor.
(c) A breach by the Debtor of any warranty or any representation
contained in the DIP Financing Agreement or any Note, and such
breach shall not have been remedied within fifteen (15) days after
receipt of written notice of such breach has been given by Lender
to the Debtor.
(d) The conversion of the Debtor's case to a case proceeding under
Chapter 7 of the Code, or the dismissal of the Debtor's Chapter 11
case, or the appointment of a trustee in either a Chapter 7 or
Chapter 11 case of the Debtor.
(e) The appeal, rehearing, reconsideration, reversal, modification,
vacation or stay of this Order.
-9-
(f) The failure to have scheduled a hearing on approval of the post-
petition Asset Purchase Agreement and the Transaction ("Sale
Hearing") within thirty (30) days following the commencement of
the Case.
(g) The failure to have obtained approval of the proposed bidding
procedures and Break-Up Fee, as described in the Transaction
documents and in connection with the Sale Hearing.
(h) The failure to have obtained approval of the post-petition Asset
Purchase Agreement and the Transaction within thirty-five (35)
days following the commencement of the Case.
(i) The appeal, rehearing, reconsideration, reversal, modification,
vacation or stay of the Order approving the Transaction.
(j) The failure of the parties to close the Transaction within fifty
(50) days of the commencement of the Case.
(k) If there shall have occurred an Event of Default under any other
agreements between the Debtor and the Lender, except that the
commencement of the Debtor's case shall not be deemed to
constitute a default.
14. In addition to any and all other remedies available to Lender
resulting from the occurrence of an Event of Default, Lender, in its sole
discretion and without further notice to the Debtor or any other party, may
declare the unpaid principal amount of the Post-Petition Loan, together with all
accrued interest thereon at the applicable rate specified in the Notes, and all
other sums due by the Debtor under any Note or the DIP Financing Agreement shall
become
-10-
immediately due and payable, without presentment, demand, protest or other
requirements of any kind, all of which are expressly waived by the Debtor. Upon
the occurrence of an Event of Default, the Lender shall have the right to charge
and accrue interest at a rate per annum equal to ten percent (10%) (the
"Interest Rate") plus three percent (3%) (the "Default Rate"). In addition, in
each case, the Lender may recover all costs of suit and other expenses incurred
by the Lender (including attorneys' fees) in connection with the collection of
any sums due under any and all Notes or under the DIP Financing Agreement. In
addition to all other remedies available to it, the Lender may exercise its
rights under any and all Notes delivered to the Lender. The remedies set forth
herein shall be in addition to, and not in lieu of, any other additional rights
or remedies the Lender may have at law or in equity. In addition, upon the
occurrence of an Event of Default, the automatic stay imposed by Code (S) 362,
and all other stays and injunctions, if any, shall be deemed modified and
dissolved, and of no further force or effect, without further order of the Court
in order to permit Lender to exercise all rights or remedies with respect to or
in the Collateral and all obligations due Lender under the DIP Financing
Agreement and the Notes. Further, upon the occurrence of an Event of Default or
the Maturity Date, whichever shall first occur, following three (3) business
days' notice to Debtor, any committee appointed by the U.S. Trustee and the U.S.
Trustee, Lender is authorized to (i) exercise its rights in and to the Warrants,
(ii) credit the Debtor, and (iii) apply the Warrants to and in satisfaction of
the obligations of Debtor to Lender with respect to the Pre-Petition
Indebtedness and all obligations under the Post-Petition Loan.
15. All defenses or claims of, every kind or nature, whether existing by
virtue of state, federal bankruptcy or non-bankruptcy law, by agreement or
otherwise, against Lender, as such
-11-
defenses or claims may presently exist, are hereby forever waived, relinquished
and released by Debtor, against Lender, including without limitation, any
affirmative defense, counterclaim, setoff, deduction or recoupment as of the
entry of this Order, except that any committee appointed by the U.S. Trustee may
bring an action to challenge the validity, priority and extent of Lender's Pre-
Petition Indebtedness within forty-five (45) days after the entry of this Order.
16. If any or all of the provisions of this Order or the DIP Financing
Agreement are hereafter modified, vacated or stayed by subsequent order of this
Court or by any other court, such stay, modification, or vacation shall not
affect the validity of any debt to Lender in respect to any post-petition
lending prior to the effective date of such stay, modification, or vacation, or
the validity and enforceability of any lien, security interest or priority
authorized or created by this Order or the DIP Financing Agreement and
notwithstanding such stay, modification, or vacation, any obligations of the
Debtor pursuant to this Order or the DIP Financing Agreement arising prior to
the effective date of such stay, modification or vacation shall be governed in
all respects by the original provisions of this Order and the DIP Financing
Agreement, and the validity of any such credit extended or lien granted pursuant
to this Order and the DIP Financing Agreement is subject to the protections
afforded under 11 U.S.C. (S) 364(e).
17. The Debtor specifically waives and relinquishes any right, whether now
existing or hereafter arising, to seek or request any stay, injunction, or other
order concerning the Lender's ability to enforce its rights under the DIP
Financing Agreement.
18. In addition, the Debtor specifically waives and relinquishes any
right, whether now existing or hereafter arising, under Code (S)(S) 506(c) and
552(b) to challenge, modify, alter,
-12-
amend or surcharge Lender's rights, interest or liens in and to the Collateral
and the proceeds thereof.
19. The Debtor as plan proponent may not modify, alter, or revise any
terms, conditions, liens, priorities, payment terms, or other provisions of the
DIP Financing Agreement under any plan of reorganization.
20. A final hearing in this Motion shall be held on April 23, 1998, at
2:30 p.m. (Prevailing Eastern Time) at the United States Bankruptcy Court for
the District of Delaware. The Debtor shall promptly serve a copy of the Motion
and this Interim Order upon: (i) Lender; (ii) the Office of the United States
Trustee, (iii) the Debtor's twenty (20) largest unsecured creditors; and (iv)
any entity or person who has entered its appearance in this matter.
21. Any person opposing the Motion must file an objection or other
responsive pleading with the Clerk of the United States Bankruptcy Court for the
District of Delaware 824 Market Street, Wilmington, Delaware, 19801 and deliver
a copy to Debtor's counsel, whose name and address appears below, on or before
April 20, 1998 at 4:00 p.m. In the absence of any timely filed and property
served objection or responsive pleading, the Court may, upon consideration of
the record, enter a final order granting the Motion.
ORDERED in the District of Delaware, this 25th day of March, 1998.
BY THE COURT:
________________________________________
UNITED STATES BANKRUPTCY JUDGE
-13-