HEREBY FOUND AND DETERMINED THAT. A. On April 10, 2008 (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 Southern District of New York commencing these cases (the “Cases”). B. The Debtors have continued in the management and operation of their businesses and properties as debtors in possession pursuant to sections 1107 and 1108 of the Bankruptcy Code. No trustee or examiner has been appointed in the Cases. On April 24, 2008, the United States Trustee appointed a statutory committee of unsecured creditors (the “Creditors’ Committee”) in the Cases. C. This Court has core jurisdiction over the Cases, this Motion and the parties and properties affected hereby pursuant to 28 U.S.C. §§ 157(b) and 1334. Venue is proper before this Court pursuant to 28 U.S.C. §§ 1408 and 1409. D. Under the circumstances, the notice given by the Debtors of the Motion, the Notice, the Interim Hearing and the Final Hearing constitutes due and sufficient notice thereof and complies with Bankruptcy Rule 4001. E. Good cause has been shown for the entry of this Order. F. The Debtors need access to the DIP Credit Facility to satisfy working capital and operational needs and to ensure, commensurate with the size of their operations, an appropriate liquidity cushion. The access of the Debtors to sufficient working capital and liquidity is vital to the preservation and maintenance of the going concern values of the Debtors and to a successful reorganization of the Debtors. If the Debtors do not obtain authorization to borrow under the DIP Loan Documents, the Debtors may be at risk of irreparable harm. G. The Debtors are unable to obtain adequate post-petition credit on more favorable terms from sources other than the DIP Lenders under the DIP Loan Documents, and are unable to obtain adequate unsecured credit allowable under section 503(b)(1) of the Bankruptcy Code as an administrative expense. The Debtors are also unable to obtain adequate secured credit allowable under sections 364(c)(1), 364(c)(2) and 364(c)(3) of the Bankruptcy Code without the Debtors granting to the Administrative Agent and the DIP Lenders (i) the Superpriority Claims (as defined below), subject to the Carve Out and the First Data Claim (which claim shall be pari passu to the Superpriority Claims) and (ii) the DIP Liens (as defined below),subject to the liens securing the obligations owed to First Data as described in the First Data Order, the Carve Out (each to the extent provided in the DIP Credit Agreement) and the other exceptions expressly set forth in the DIP Loan Documents, in each case under the terms and conditions set forth in this Order and the DIP Loan Documents. H. The terms of the DIP Credit Facility are fair and reasonable, reflect the Debtors’ exercise of prudent business judgment consistent with their fiduciary duties and constitute reasonably equivalent value and fair consideration. I. The DIP Credit Facility has been negotiated in good faith and at arm’s length between the Debtors, the Administrative Agent and the DIP Lenders, as applicable, and all of the Debtors’ obligations and indebtedness arising under, in respect of or in connection with the DIP Credit Facility and the DIP Loan Documents, including, without limitation, (i) all loans made to the Debtors pursuant to the DIP Credit Agreement and (ii) all other “Obligations” (as defined in the DIP Credit Agreement) (all of the foregoing, collectively, the “DIP Obligations”), shall be deemed to have been extended by the Administrative Agent and the DIP Lenders and their affiliates, as applicable, 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, and shall be entitled to the full protection of section 364(e) of the Bankruptcy Code in the event that this Order or any provision hereof is vacated, reversed or modified, on appeal or otherwise. J. Absent granting the relief sought by this Order, the Debtors’ estates may well be immediately and irreparably harmed. Consummation of the DIP Credit Facility in accordance with this Order and the DIP Loan Documents is therefore in the best interest of the Debtors’ estates. Based on the foregoing, and upon the record made before this Court at the Interim Hearing and the Final Hearing, and good and sufficient cause appearing therefor,
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HEREBY FOUND AND DETERMINED THAT. A. On April 10, 2008 (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 Southern District of New York commencing these cases (the “Cases”).
B. The Debtors have continued in the management and operation of their businesses and properties as debtors in possession pursuant to sections 1107 and 1108 of the Bankruptcy Code. No trustee or examiner has been appointed in the Cases. On April 24, 2008, the United States Trustee appointed a statutory committee of unsecured creditors (the “Creditors’ Committee”) in the Cases.
C. This Court has core jurisdiction over the Cases, this Motion and the parties and properties affected hereby pursuant to 28 U.S.C. §§ 157(b) and 1334. Venue is proper before this Court pursuant to 28 U.S.C. §§ 1408 and 1409.
D. Under the circumstances, the notice given by the Debtors of the Motion, the Notice, the Interim Hearing Notice and the Final Hearing constitutes due and sufficient notice thereof and complies with Bankruptcy Rule 4001.
E. Good cause has been shown for the entry of this Order.
F. The Debtors need access to the DIP Credit Facility to satisfy working capital and operational needs and to ensure, commensurate with the size of their operations, an appropriate liquidity cushion. The access of the Debtors to sufficient working capital and liquidity is vital to the preservation and maintenance of the going concern values of the Debtors and to a successful reorganization of the Debtors. If the Debtors do not obtain authorization to borrow under the DIP Loan Documents, the Debtors may be at risk of irreparable harm.
G. The Debtors are unable to obtain adequate post-petition credit on more favorable terms from sources other than the DIP Lenders under the DIP Loan Documents, and are unable to obtain adequate unsecured credit allowable under section 503(b)(1) of the Bankruptcy Code as an administrative expense. The Debtors are also unable to obtain adequate secured credit allowable under sections 364(c)(1), 364(c)(2) and 364(c)(3) of the Bankruptcy Code without the Debtors granting to the Administrative Agent and the DIP Lenders (i) the Superpriority Claims (as defined below), subject to the Carve Out and the First Data Claim (which claim shall be pari passu to the Superpriority Claims) and (ii) the DIP Liens (as defined below),subject below), subject to the liens securing the obligations owed to First Data as described in the First Data Order, the Carve Out (each to the extent provided in the DIP Credit Agreement) and the other exceptions expressly set forth in the DIP Loan Documents, in each case under the terms and conditions set forth in this Order and the DIP Loan Documents.
H. The terms of the DIP Credit Facility are fair and reasonable, reflect the Debtors’ exercise of prudent business judgment consistent with their fiduciary duties and constitute reasonably equivalent value and fair consideration.
I. The DIP Credit Facility has been negotiated in good faith and at arm’s length between the Debtors, the Administrative Agent and the DIP Lenders, as applicable, and all of the Debtors’ obligations and indebtedness arising under, in respect of or in connection with the DIP Credit Facility and the DIP Loan Documents, including, without limitation, (i) all loans made to the Debtors pursuant to the DIP Credit Agreement and (ii) all other “Obligations” (as defined in the DIP Credit Agreement) (all of the foregoing, collectively, the “DIP Obligations”), shall be deemed to have been extended by the Administrative Agent and the DIP Lenders and their affiliates, as applicable, 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, and shall be entitled to the full protection of section 364(e) of the Bankruptcy Code in the event that this Order or any provision hereof is vacated, reversed or modified, on appeal or otherwise.
J. The Debtors have requested immediate entry of this Order pursuant to Bankruptcy Rules 4001(b)(2) and 4001(c)(2). Absent granting the relief sought by this Order, the Debtors’ estates may well be immediately and irreparably harmed. Consummation of the DIP Credit Facility in accordance with this Order and the DIP Loan Documents is therefore in the best interest of the Debtors’ estates. Based on the foregoing, and upon the record made before this Court at the Interim Hearing and the Final Hearing, and good and sufficient cause appearing therefor,, IT IS HEREBY ORDERED AND ADJUDGED THAT:
1. The Motion, as modified by the Notice, is granted on an interim basis, as set forth herein.
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