Attached files
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8-K - ORLEANS HOMEBUILDERS INC | v182290_8k.htm |
EX-10.2 - ORLEANS HOMEBUILDERS INC | v182290_ex10-2.htm |
EX-10.1 - ORLEANS HOMEBUILDERS INC | v182290_ex10-1.htm |
EX-99.2 - ORLEANS HOMEBUILDERS INC | v182290_ex99-2.htm |
Exhibit
99.1
DISTRICT
OF DELAWARE
FINAL
ORDER APPROVING DEBTORS’ MOTION FOR
AUTHORITY
TO OBTAIN CREDIT SECURED BY SENIOR LIENS
AND
WITH SUPERPRIORITY ADMINISTRATIVE CLAIM STATUS
PURSUANT TO 11 U.S.C. §
364(c) AND (d)
Upon
consideration of the Motion, dated March 1, 2010, filed in the above captioned
jointly administered bankruptcy cases (the “Bankruptcy Cases”) of
the debtors and debtors-in-possession1
(collectively, the “Debtors”) for
Authority to Obtain Credit Secured by Senior Liens and with Superpriority
Administrative Claim Status Pursuant to 11 U.S.C. § 364(c) and (d) (the “Financing Motion”);
the Declaration of Benjamin D. Goldman in Support of Debtors’ First-Day
Pleadings; the record established at the interim hearing on the Financing Motion
held on March 3, 2010 (the “Interim Hearing”) and
the final hearing on the Financing Motion held on April 15, 2010 (the “Final Hearing”); and
the evidence and arguments of counsel; and it appearing that notice of the
Financing Motion, Interim Hearing, and Final Hearing were served pursuant to
Bankruptcy Rule 4001(c)(2) upon the Office of the United States Trustee for
the District of Delaware, the 50 largest unsecured non-insider creditors of the
Debtors on a consolidated basis, Wells Fargo Bank, National Association,
successor by merger to Wachovia Bank, National Association (in its capacity as
the administrative agent for the Pre-Petition Lenders (as defined hereinafter),
the “Pre-Petition
Agent” and, in its capacity as the administrative agent for the DIP
Lenders (as defined hereinafter), the “Agent”), and its
counsel, and the transfer agent for the stock of OHB; and the Court having
entered, after the Interim Hearing, that certain Interim Order Approving
Debtors’ Motion for Authority to Obtain Credit Secured by Senior Liens and with
Superpriority Administrative Claim Status Pursuant to 11 U.S.C. § 364(c) and (d)
(the “Interim
Order”); and it appearing that the relief requested by the Financing
Motion and granted by this Final Order is appropriate in the context of the
Bankruptcy Cases, in the best interests of the Debtors and their respective
bankruptcy estates in the Bankruptcy Cases (collectively, the “Bankruptcy Estates”),
their creditors, and all other parties-in-interest, and necessary to avoid
immediate and irreparable harm to the Debtors’ respective Bankruptcy Estates as
contemplated by Federal Rule of Bankruptcy Procedure (a “Bankruptcy Rule”)
4001 and Local Rule for the United States Bankruptcy Court for the District of
Delaware (a “Local
Bankruptcy Rule”) 4001-2; and all objections, to the entry of this Final
Order having been withdrawn, resolved, or overruled by this Court; and, after
due deliberation and consideration, the Court having found that good and
sufficient cause exists for granting the Financing Motion, BASED ON THE RECORD ESTABLISHED AT
THE INTERIM HEARING AND FINAL HEARING, THE COURT HEREBY MAKES THE FOLLOWING
FINDINGS OF FACT AND CONCLUSIONS OF LAW:
1 The
Debtors in these cases are: Brookshire Estates, L.P.; Greenwood Financial Inc.;
Masterpiece Homes, LLC; OHB Homes, Inc.; OHI Financing, Inc.; OHI PA GP, LLC;
OPCNC, LLC; Orleans Arizona Realty, LLC; Orleans at Bordentown, LLC; Orleans at
Cooks Bridge, LLC; Orleans at Covington Manor, LLC; Orleans at Crofton Chase,
LLC; Orleans at East Greenwich, LLC; Orleans at Elk Township, LLC; Orleans at
Evesham, LLC; Orleans at Falls, LP; Orleans at Hamilton, LLC; Orleans at
Harrison, LLC; Orleans at Hidden Creek, LLC; Orleans at Jennings Mill, LLC;
Orleans at Lambertville, LLC; Orleans at Limerick, LP; Orleans at Lower Salford,
LP; Orleans at Lyons Gate, LLC; Orleans at Mansfield LLC; Orleans at Maple Glen
LLC; Orleans at Meadow Glen, LLC; Orleans at Millstone River Preserve, LLC;
Orleans at Millstone, LLC; Orleans at Moorestown, LLC; Orleans at Tabernacle,
LLC; Orleans at Thornbury, L.P.; Orleans at Upper Freehold, LLC; Orleans at
Upper Saucon, L.P.; Orleans at Upper Uwchlan, LP; Orleans at Wallkill, LLC;
Orleans at West Bradford, LP; Orleans at West Vincent, LP; Orleans at Westampton
Woods, LLC; Orleans at Windsor Square, LP; Orleans at Woolwich, LLC; Orleans at
Wrightstown, LP; Orleans Construction Corp.; Orleans Corporation; Orleans
Corporation of New Jersey; Orleans DK, LLC; Orleans Homebuilders, Inc.; Orleans
Homebuilders Trust; Orleans RHIL, LP; Parker & Lancaster Corporation; Parker
& Orleans Homebuilders, Inc.; Parker Lancaster, Tidewater, L.L.C.; Realen
Homes, L.P.; RHGP LLC; Sharp Road Farms Inc.; Stock Grange, LP; and Wheatley
Meadows Associates, LLC.
A. The
Petition Date. On March 1, 2010 (the
“Petition
Date”), the Debtors filed voluntary petitions under chapter 11 of title
11 of the United States Code (the “Bankruptcy Code”)
with the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court” or
this “Court”). Since
the Petition Date, the Debtors have remained in possession and control of their
assets and property as debtors-in-possession pursuant to sections 1107 and 1108
of the Bankruptcy Code. No trustee or examiner has been appointed in
the Bankruptcy Cases.
B. Jurisdiction
and Venue. This Court has
jurisdiction to hear the Financing Motion pursuant to 28 U.S.C. §
1334. Consideration of the Financing Motion constitutes a core
proceeding under 28 U.S.C. § 157(b)(2)(D), (K), (M), and (O). Venue
for the Bankruptcy Cases and proceedings on the Financing Motion is proper in
this district pursuant to 28 U.S.C. §§ 1408 and 1409.
C. Committee
Formations. On March 11, 2010, the
United States Trustee (the “US Trustee”)
appointed an Official Committee of Unsecured Creditors (the “Committee”).
D. Interim
Order. After
the Interim Hearing, the Court approved the Financing Motion on an interim basis
pending the Final Hearing and entry of this Final Order. The Final Hearing was
originally scheduled for April 6, 2010 and adjourned to April 13, 2010 and then
further adjourned to April 15, 2010.
E. Notice. Notice of the Interim
Hearing and Final Hearing and the relief requested in the Financing Motion has
been provided by the Debtors as set forth in the Financing
Motion. Under the circumstances, such notice of the Interim Hearing
and Final Hearing and the relief requested in the Financing Motion constitutes
due, sufficient, and appropriate notice and complies with section 102(1) of the
Bankruptcy Code, Bankruptcy Rules 2002, 4001(b), and 9014, and Local Bankruptcy
Rules 2002-1 and 4001-2.
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F. Debtor’s Acknowledgements
& Agreements.
(a) The Pre-Petition Credit
Agreement. Subject to the
Committee’s rights under paragraph 29 of this Final Order, as of the date of the
Financing Motion, the Debtors were indebted to the
Pre-Petition Agent and various lending institutions (collectively, the “Pre-Petition
Lenders”) in an aggregate amount of approximately $337,956,029.99 on
account of the indebtedness and other obligations, including, without
limitation, earned but unpaid fees and expenses of the Pre-Petition Lenders and
Pre-Petition Agent, arising under and in connection with a revolving line of
credit (the “Pre-Petition
Facility”) evidenced by that certain Second Amended and Restated
Revolving Credit Loan Agreement, dated as of September 28, 2008 (as amended,
modified, supplemented, restated, extended, renewed, increased, and/or replaced
from time to time and together with all schedules, exhibits, annexes, addenda,
and related documents, the “Pre-Petition Credit
Agreement”), and the various notes, guaranties, security agreements,
mortgages, letters of credit, and all other agreements, documents, and
instruments executed or delivered in connection with the Pre-Petition Credit
Agreement (together with the Pre-Petition Credit Agreement, collectively, the
“Pre-Petition Credit
Documents”).
(b) The Pre-Petition
Liens. Pursuant to the Pre-Petition Credit Documents, the
indebtedness and other obligations of the Debtors arising under the Pre-Petition
Credit Documents (collectively, the “Pre-Petition Debt”)
is secured by liens on and security interests in (collectively, the “Pre-Petition Liens”)
substantially all of the assets of the Debtors (collectively, the “Pre-Petition
Collateral”).
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(c) Enforceability of the
Pre-Petition Debt. As of the date hereof, the Pre-Petition
Debt is (a) legal, valid, binding, and enforceable against each of the Debtors
and their respective Bankruptcy Estates and (b) not subject to any contest,
attack, objection, recoupment, defense, counterclaim, offset, subordination,
re-characterization, avoidance, or other claim, cause of action, or other
challenge of any nature under the Bankruptcy Code, under applicable
non-bankruptcy law, in equity, or otherwise. Subject to the
Committee’s rights under paragraph 29 of this Final Order, the Debtors and their
respective Bankruptcy Estates do not have, hereby forever release, and are
forever barred from bringing any claims, counterclaims, causes of action,
defenses, or setoff rights relating to the Pre-Petition Debt, whether arising
under the Bankruptcy Code, under applicable non-bankruptcy law, in equity, or
otherwise, against the Pre-Petition Lenders and their respective affiliates,
subsidiaries, agents, officers, directors, employees, and
attorneys.
(d) Enforceability of the
Pre-Petition Liens. Subject to the Committee’s rights under
paragraph 29 of this Final Order, the Pre-Petition Liens are legal, valid,
enforceable, non-avoidable, and duly perfected and are not subject to avoidance,
attack, offset, recharacterization, or subordination under the Bankruptcy Code,
under applicable non-bankruptcy law, in equity, or otherwise and, as of the date
hereof, other than Prior Liens, there are no liens or security interests having
priority over the Pre-Petition Liens.
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G. Need for
Post-Petition Financing. As of the Petition Date,
an immediate need existed for the Debtors to obtain funds in order to continue
operations and to administer and preserve the value of their respective
Bankruptcy Estates. The ability of the Debtors to finance their
operations, to preserve and maintain the value of their assets, and maximize the
return for all creditors requires the availability of working capital under the
terms of the debtor-in-possession financing transactions described in the term
sheet attached to the Interim Order as Exhibit A (the “Term
Sheet”). On April 14, 2010, the Debtors filed with the Court a
form of that certain Debtor in Possession Loan Agreement (to be amended pursuant
to the terms of this Order, the “DIP Credit
Agreement”). The Term Sheet, DIP Credit Agreement, Interim
Order, this Final Order, and any and all agreements, instruments, and documents
executed or delivered in connection therewith or related thereto or contemplated
thereby (including, without limitation, commitment letters and fee letters
executed and delivered in connection with the Term Sheet) are referred to
herein, collectively, as the “DIP Credit
Documents.” In the absence of the availability of such funds
in accordance with the terms of the DIP Credit Documents, the continued
operation of the Debtors’ businesses would not be possible, and immediate and
irreparable harm to the Debtors and their respective Bankruptcy Estates and
creditors would occur.
H. No Credit
Available on More Favorable Terms. The Debtors have been
unable to obtain (a) adequate unsecured credit allowable under section 503(b)(1)
of the Bankruptcy Code as an administrative expense; (b) credit with priority
over any or all administrative expenses of the kind specified in sections 503(b)
or 507(b); (c) credit secured solely by a lien on or security interest in
property of their respective Bankruptcy Estates that is not otherwise subject to
a lien or security interest; or (d) credit secured by a junior lien on or
security interest in property of their respective Bankruptcy Estates which is
subject to a lien or security interest, in each case, on more favorable terms
and conditions than those set forth in the DIP Credit Documents.
I.
DIP
Facilities. Pursuant to the
Financing Motion the Debtors seek the Court’s authorization to obtain credit and
incur debt pursuant to section 363 and section 364(c)(1), (2), (3) and (d)(1) of
the Bankruptcy Code, upon entry of this Final Order, as
follows:
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(a) DIP Revolving
Facility. Subject to the terms and conditions of the DIP
Credit Documents, revolving loans in the amount of up to $40,000,000 (the “DIP Revolving
Facility”), of which up to $25,000,000 (the “Revolving Sublimit”)
shall be available for advances and up to $15,000,000 shall fund certain letters
of credit issued under the Pre-Petition Facility that were drawn prior to the
Petition Date (the “DIP Letters of
Credit”). Cash or cash equivalents received by a Debtor from a
beneficiary of a DIP Letter of Credit in exchange for the issuance of such DIP
Letter of Credit shall be paid to the Pre-Petition Lenders pursuant to the terms
of the DIP Credit Documents.
(b) Roll-Up Term
Facility. A portion of the Pre-Petition Debt will be “rolled
up” into a new postpetition term loan facility (the “DIP Term Facility”;
together with the DIP Revolving Facility, the “DIP Facilities” and,
together with the Pre-Petition Facility, collectively, the “Facilities”). The
DIP Term Facility consists of an $80,000,000 term loan consisting of (i) Tranche 1: a $40,000,000
tranche consisting of a roll up of each Pre-Petition Lenders’ pro rata share of
outstanding Pre-Petition Debt, provided that each such Pre-Petition Lender
consented in writing to the terms of the DIP Credit Documents prior to the Final
Hearing regarding the DIP Facilities: (ii) Tranche 2: a $40,000,000
tranche, consisting of a dollar for dollar roll up of each DIP Revolving
Lender’s (as defined hereinafter) Pre-Petition Debt in an amount equal to each
DIP Revolving Lender’s (as defined hereinafter) commitment amount under the DIP
Revolving Facility.
J. Use of
Proceeds of the DIP Facilities. Proceeds of the DIP
Facilities (net of any amounts used to pay fees, costs, and expenses under the
DIP Credit Documents) shall be used, in each case in a manner consistent with
the DIP Credit Documents and Final Budget (as defined
hereinafter).
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K. Business
Judgment and Good Faith Pursuant to Section 364(e). The terms and conditions
of the DIP Facilities, as set forth in the DIP Credit Documents, and the fees
paid and to be paid thereunder (i) are fair, reasonable, and the best available
under the circumstances; (ii) reflect the Debtors’ exercise of prudent business
judgment consistent with their fiduciary duties; and (iii) are supported by
reasonably equivalent value and consideration. The DIP Facilities
were negotiated in good faith and at arm’s length between the Debtors and Agent
and the various lending institutions that have indicated their willingness to
provide debtor-in-possession financing to the Debtors pursuant to the DIP Credit
Documents (collectively, the “DIP Lenders” and, if
having a commitment under the DIP Revolving Facility, a “DIP Revolving
Lender”). The funds to be extended under the DIP Facilities will be
extended by the DIP Lenders in good faith, and for valid business purposes and
uses by the Debtors, and, as a consequence, the DIP Lenders are entitled to the
protection and benefits afforded by section 364(e) of the Bankruptcy
Code. The DIP Liens (as defined hereinafter), DIP Superpriority Claim
(as defined hereinafter), and other protections granted pursuant to the DIP
Credit Documents will not be affected by any subsequent reversal, modification,
amendment, or vacation of the Interim Order or this Final Order or any other
order, as provided in section 364(e) of the Bankruptcy Code.
L. Relief
Essential; Best Interests. The relief requested in
the Financing Motion and granted by the Interim Order and this Final Order is
necessary, essential, and appropriate for the continued operation of the
Debtors’ businesses and management and preservation of their respective
Bankruptcy Estates. It is in the best interests of the Bankruptcy
Estates, the creditors, equity holders, and all other parties-in-interest that
the Debtors be allowed to obtain credit under the DIP Facilities pursuant to the
DIP Credit Documents.
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M. Section
552. In light of the DIP Lenders’ agreement to fund unpaid
accrued ordinary course obligations (other than those fees and expenses covered
by or intended to be covered by the Carve-Out (as defined hereinafter) in
accordance with Section 4 of this Final Order (the “Carve-Out Expenses”))
incurred consistent with the DIP Credit Documents and Final Budget up to the
date the Agent serves upon the Debtors a notice of an event of default under the
DIP Credit Documents (an “Event of Default”)
and the subordination of their liens and superpriority claims to the Carve-Out
(as defined hereinafter), the DIP Lenders are entitled to all of the rights and
benefits of section 552(b) of the Bankruptcy Code, and, upon entry of this Final
Order, the “equities of the case” exception shall not apply.
N. Extension
of Financing. The DIP Lenders have indicated a willingness to
provide financing to certain of the Debtors in accordance with the DIP Credit
Documents. The DIP Lenders are good faith financiers.
O. Entry of
Final Order. For the reasons stated
above, the Debtors have requested and are entitled to entry of this Final Order
pursuant to Bankruptcy Rule 4001(c).
NOW, THEREFORE, upon the
Financing Motion and the record before this Court with respect to the Financing
Motion, including the record made during the Interim Hearing and Final Hearing,
and good and sufficient cause appearing therefor,
IT IS HEREBY ORDERED
that:
1. Motion
Granted. The
Financing Motion is granted in accordance with the terms and conditions set
forth in this Final Order and other DIP Credit Documents. Any
objections to the Financing Motion with respect to the entry of this Final Order
to the extent not withdrawn, waived, or otherwise resolved, and all reservations
of rights included therein, if any, are hereby denied and
overruled.
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2. DIP
Credit Documents.
(a) Approval
of Entry into the DIP Credit Documents. The Debtors are
expressly and immediately authorized and empowered to execute and deliver the
DIP Credit Documents (to be modified to be consistent with the statements and
representations made to this Court at the Final Hearing) and to incur and
perform in accordance therewith, and to execute and deliver all instruments,
certificates, agreements, and documents which may be required or necessary for
the performance by the Debtors in connection with the DIP Facilities and the
creation and perfection of the liens and security interests granted pursuant to
the DIP Credit Documents as described in and provided for by this Final Order
and other DIP Credit Documents. The Debtors are hereby authorized and
directed to do and perform all acts, satisfy all obligations, and to pay all
principal, interest, fees, expenses, and other amounts described in the DIP
Credit Documents as such become due (collectively with all other obligations
under and as defined in the DIP Credit Documents, the “DIP Obligations”),
which shall not otherwise be subject to further approval of this
Court. Upon execution and delivery, the DIP Credit Documents shall
represent valid and binding obligations of the Debtors enforceable in accordance
with their respective terms against the Debtors and their respective Bankruptcy
Estates.
(b) Authorization
to Borrow. The Debtors are
immediately authorized to borrow subject to, and in accordance with, the terms
and conditions of the DIP Credit Documents, up to (including the roll-up under
the DIP Term Facility) $120,000,000 (the “DIP Facility
Amount”). For the avoidance of doubt, the DIP Facility Amount includes
any and all amounts borrowed under the authority granted by the Interim
Order.
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(c) Use of
the DIP Facility Amount. The first Eighty Million
Dollars ($80,000,000) of the DIP Facility Amount advanced by the DIP Lenders to
the Debtors shall be used by the Debtors to repay Eighty Million Dollars
($80,000,000) of the Pre-Petition Debt. Fifteen Million Dollars
($15,000,000) of the DIP Facility Amount advanced by the DIP Lenders to the
Debtors may be used by the Debtors to fund the DIP Letters of
Credit. Cash or cash equivalents received by a Debtor from a
beneficiary of a DIP Letter of Credit in exchange for the issuance of such DIP
Letter of Credit shall be paid to the Pre-Petition Lenders pursuant to the terms
of the DIP Credit Documents. Remaining portions of the DIP Facility
Amount, if advanced by the DIP Lenders to the Debtors, shall be used by the
Debtors to (i) pay related transaction costs, fees, and expenses of the DIP
Facilities in accordance with the DIP Credit Documents; (ii) fund ongoing
working capital needs of the Debtors; and (iii) pay administrative costs
associated with the Bankruptcy Cases consistent with the budget that is attached
hereto as Exhibit A (the “Final
Budget”). All advances by the DIP Lenders to the Debtors of
the DIP Facility Amount shall be subject to the Final Budget.
(d) Conditions
Precedent. The DIP Lenders shall
have no obligation to make any loan or any other financial accommodations under
the DIP Credit Documents unless the conditions precedent as set forth in the DIP
Credit Documents have occurred or have been waived in the manner set forth
therein.
(e) DIP
Superpriority Claim and DIP Liens. Effective immediately
upon the entry of this Final Order, and subject to the terms of the DIP Credit
Documents, the DIP Lenders, as adequate protection and security for the DIP
Obligations, are hereby granted (x) a superpriority administrative expense
claim, pursuant to section 364(c)(1) of the Bankruptcy Code, superior to any and
all administrative claims of any kind specified or ordered pursuant to any
provision of the Bankruptcy Code, including, without limitation, sections 105,
326, 328, 330, 331, 503(b), 506(c), 507(a), 507(b), and 726 of the Bankruptcy
Code (the “DIP
Superpriority Claim”) and (y) the following security interests and liens,
all of which shall be immediately valid, binding, permanent, continuing,
enforceable, and non-avoidable (collectively, the “DIP
Liens”):
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(I) pursuant
to section 364(d) of the Bankruptcy Code, a perfected first priority security
interest in and lien on all now owned or hereafter acquired assets and property,
real and personal, of the Debtors and their respective Bankruptcy Estates, which
includes, without limitation, all inventory, accounts receivable, chattel paper,
contract rights, documents, equipment, fixtures, deposit accounts, general
intangibles (including, without limitation, all tax refunds, copyrights,
licensing agreements, patents, trademarks, and trade names), instruments, real
property, securities and other investment property, and all cash collateral,
whether received by judgment, settlement, or otherwise, and proceeds of all of
the foregoing, wherever located, subject only to valid and unavoidable liens
that are in existence on the Petition Date, or that can be asserted after the
Petition Date but relate back to the Petition Date or earlier under applicable
law, and that under applicable law are senior to, and have not been subordinated
to, the liens and security interests of the Pre-Petition Lenders (collectively,
the “Prior
Liens”);
(II) pursuant
to section 364(c)(2) of the Bankruptcy Code, a perfected first priority security
interest in and lien on all assets and property of the Debtors and their
respective Bankruptcy Estates that, as of the Petition Date, was not subject to
valid, unavoidable Pre-Petition Liens; and
(III) pursuant
to section 364(c)(3), a perfected junior priority security interest in and lien
on all assets and property of Debtors and their respective Bankruptcy Estates
that is subject to Prior Liens perfected as of the Petition Date or Prior Liens
that are perfected subsequent to the Petition Date as permitted by section
546(b) of the Bankruptcy Code.
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The foregoing property described in
paragraphs (I), (II), and (III) above shall hereinafter be referred to,
collectively, as the “DIP
Collateral.” Notwithstanding anything to the contrary in this
paragraph, the DIP Liens and DIP Superpriority Claims shall be subject to (i)
the Carve Out (as defined hereinafter) and, (ii) payment of all accrued and
unpaid postpetition obligations owed by the Debtors as of the date that an Event
of Default has been declared by the Agent and all amounts under the DIP Credit
Documents are due and payable, that are incurred in accordance with the Final
Budget, other than the Carve-Out Expenses. Furthermore,
notwithstanding anything else contained in this Order, the DIP Collateral and
DIP Superpriority Claim shall not include any causes of action under chapter 5
of the Bankruptcy Code, including, causes of action under sections 502(d), 544,
545, 547, 548, 549, 550, and 553 of the Bankruptcy Code, and the proceeds of all
of the foregoing (collectively, the “Avoidance
Actions”).
3. Authorization
to Perfect the DIP Liens. The DIP Lenders shall be
and are hereby authorized to take any action they deems necessary or appropriate
to perfect the DIP Liens granted to the DIP Lenders pursuant to the DIP Credit
Documents and this Final Order, including, without limitation, filing financing
statements, all of which shall be deemed to have been filed on the date of entry
of the Interim Order and shall continue in full force and effect through and
after the entry of this Final Order.
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4. Carve-Out. The DIP Superpriority
Claim and DIP Liens granted hereunder to the DIP Lenders and any claims or liens
ranking pari passu with
or junior in priority to the DIP Superpriority Claim and DIP Liens shall be
subject to the Carve-Out (as defined hereinafter). As used in this
Final Order, “Carve-Out” means all
fees required to be paid to the Clerk of the Bankruptcy Court and the statutory
fees payable to the US Trustee pursuant to 28 U.S.C. § 1930(a)(6) plus an
aggregate amount, not to exceed Two Million Five Hundred Thousand Dollars
($2,500,000), for payment of any allowed fees or expenses incurred by the
Debtors and the Committee that remain unpaid as of and following the date that
the Agent notifies the Debtors that (a) an Event of Default has occurred and the
DIP Lenders elect to cease lending or make further advances under the DIP Loan
Agreement or (b) upon maturity of the DIP Facilities, whichever first occurs, in
respect of allowances of compensation for services rendered or reimbursement of
expenses awarded by the Bankruptcy Court to the Debtors’ or the Committee’s
professionals, provided, however, that nothing herein shall be construed to
impair the ability of any party to object to the fees, expenses, reimbursement
or compensation described in above. Notwithstanding the foregoing, no
portion of the Carve-Out, any cash collateral or proceeds of the DIP Facilities
or any other amounts may be used for the payment of the fees and expenses of any
person incurred in challenging, or in relation to the challenge of, (i) any of
the Pre-Petition Lenders’ or DIP Lenders’ liens or claims, or the initiation or
prosecution of any claim or cause of action against any Pre-Petition Lender,
including, without limitation, any Avoidance Action claim, and (ii) any claims
or causes of action against the Pre-Petition Lenders or DIP Lenders under the
Prepetition Facility or DIP Facilities (as the case may be), their respective
advisors, agents and sub-agents, and/or challenging any Pre-Petition Lien of the
Pre-Petition Lenders under the Prepetition Facility. No more than
$125,000 of the Carve-Out, any cash collateral or proceeds of the DIP Facilities
may be used by the Committee or any representative of the estate to investigate
claims and/or liens of the Pre-Petition Lenders under the Pre-Petition
Facility.
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5. Modification
of the Automatic Stay Imposed Under Section 362(a) of the Bankruptcy
Code. The
automatic stay imposed under section 362(a) of the Bankruptcy Code is hereby
modified as necessary to (i) permit the Debtors to grant the DIP Liens and to
incur all liabilities and obligations to the DIP Lenders under and in connection
with the DIP Credit Documents, DIP Facilities, and this Final Order, (ii)
authorize the DIP Lenders to retain and apply payments hereunder; and (iii) to
otherwise permit the parties to carry out the intent and purposes of this Final
Order.
6. DIP Lien
Priority and DIP Collateral. The DIP Liens shall have
the priorities set forth in this Final Order and, except as may otherwise be
expressly set forth herein, including, without limitation, shall in each and
every instance be first priority senior liens, except with respect to the Prior
Liens, which shall be preserved. The DIP Liens shall secure all of
the DIP Obligations. The DIP Liens (i) shall not be made subject to
or pari passu with any
lien or security interest by any court order heretofore or hereafter entered in
the Bankruptcy Cases, unless the DIP Lenders and 66 2/3% of the Pre-Petition
Lenders have provided their prior written consent or all DIP Obligations and
Pre-Petition Debt have been indefeasibly paid in cash in full and discharged,
and (ii) shall be valid and enforceable against any trustee appointed in the
Bankruptcy Cases, upon the conversion of any of the Bankruptcy Cases to a case
under chapter 7 of the Bankruptcy Code or in any other proceedings related to
any of the foregoing (any “Successor Cases”)
and/or upon the dismissal of any of the Bankruptcy Cases, except as otherwise
set forth herein. The Pre-Petition Debt, Pre-Petition Liens,
Pre-Petition Collateral, DIP Obligations, DIP Liens, and DIP Collateral and any
proceeds, products, offspring, or profits of any of the foregoing, shall not be
subject to sections 510, 549, 550, or 551 of the Bankruptcy Code, marshaling,
the “equities of the case” exception of section 552 of the Bankruptcy Code, or
section 506(c) of the Bankruptcy Code.
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7. Use of
Cash Collateral. The Debtors are authorized to use cash
collateral, but only to the extent and on the terms set forth in the DIP Credit
Documents, the Budget and this Order.
8. Adequate
Protection. Pursuant to sections
361, 363(e), and 364(d)(l) of the Bankruptcy Code, the Pre-Petition Agent, for
the benefit of the Pre-Petition Lenders under the Pre-Petition Credit Agreement,
is hereby granted the following as adequate protection (collectively, the “Adequate Protection”)
of the Pre-Petition Liens for, and equal in amount to, the diminution in the
value of the Pre-Petition Liens calculated in accordance with section 506(a) of
the Bankruptcy Code (each such diminution, a “Diminution in
Value”), whether or not such Diminution in Value results from the sale,
lease, or use by the Debtors of the Pre-Petition Collateral, the priming of the
Pre-Petition Liens, or the stay of enforcement of any Pre-Petition Lien arising
as a result of the stay under section 362(a) of the Bankruptcy Code, or
otherwise:
(a) Adequate
Protection Liens. As security for and
solely to the extent of any Diminution in Value, the Pre-Petition Agent is
hereby granted for the benefit of the Pre-Petition Lenders, effective and
perfected as of the date of the Interim Order and continuing in full force and
effect through and after the entry of this Final Order and without the necessity
of the execution or recording of financing statements, deeds of trust,
mortgages, security agreements, notices of lien, or other instruments or
documents, a security interest in and lien on all assets and property of the
Debtors and their respective Bankruptcy Estates except for the Avoidance Actions
(collectively, the “Adequate Protection
Liens”), whether or not subject to Pre-Petition Liens, subject and
subordinate only to (x) the Carve-Out and (y) the DIP Liens, which Adequate
Protection Liens shall rank in the same relative priority and right as the
Pre-Petition Liens, provided, however, that notwithstanding the foregoing, any
Adequate Protection Liens shall be subject to valid, enforceable Prior
Liens.
- 15
-
(b) Super-Priority
Claim.
Except with respect to Avoidance Actions, to the extent of any Diminution in
Value of the Pre-Petition Liens, the Pre-Petition Agent, on behalf of the
Pre-Petition Lenders, is hereby granted, subject only to the payment of the
Carve-Out, a superpriority administrative expense claim, as provided for in
section 507(b) of the Bankruptcy Code, which shall be immediately junior to the
DIP Superpriority Claim but superior in priority to any administrative claims of
the Debtors or their respective Bankruptcy Estates other than the DIP
Superpriority Claim; provided that the Pre-Petition
Agent and Pre-Petition Lenders shall not receive or retain any payments,
property, or other amounts in respect of their superpriority administrative
expense claims unless and until the DIP Obligations have been indefeasibly paid
in cash in full and discharged.
9. Maturity. The DIP Facilities will
mature upon the earliest to occur of (i) twelve months from the Petition Date,
(ii) the effective date of a plan of reorganization, (iii) the conversion of a
Bankruptcy Case to a chapter 7 proceeding, or (iv) any other termination of the
DIP Credit Agreement in accordance with the DIP Credit Documents (the “Maturity
Date”). All DIP Obligations of the Debtors to the DIP Lenders
that remain outstanding or are in existence on the Maturity Date of the DIP
Facilities shall be due and payable on the Maturity Date of the DIP
Facilities.
10. Enforceable
Obligations. The DIP Credit Documents
shall constitute and evidence the valid and binding obligations of the Debtors,
which obligations shall be enforceable in accordance with their terms against
the Debtors, their respective Bankruptcy Estates, and any successors
thereto.
- 16
-
11. Use of
DIP Facility Amount. From and after the date
hereof, the Debtors shall use the proceeds of the extensions of credit under the
DIP Facilities only for the purposes specifically set forth in the DIP Credit
Documents and Final Budget.
12. Superpriority
Administrative Claim Status. The DIP Obligations,
pursuant to section 364(c)(1) of the Bankruptcy Code, shall at all times
constitute the DIP Superpriority Claim and be payable from and have recourse to
all DIP Collateral. Other than as provided in the DIP Credit
Documents with respect to (i) the Carve-Out and (ii) the payment of accrued and
unpaid postpetition obligations incurred by the Debtors in accordance with the
Final Budget (other than the Carve-Out Expenses), prior to the notification by
the Agent to the Debtors that an Event of Default has occurred, or upon the
maturity of the DIP Facilities, whichever first occurs, no costs or expenses of
administration, including, without limitation, professional fees allowed and
payable under sections 105, 326, 328, 330, 331, 503(b) 506(c), 507(a), 507(b),
and 726 of the Bankruptcy Code or otherwise, that have been or may be incurred
in these Bankruptcy Cases or in any Successor Cases, and no priority claims are,
or will be, senior to, prior to, or on a parity with the DIP Superpriority
Claim.
13. DIP Term
Facility Consideration. Notwithstanding anything contained in
the Pre-Petition Loan Documents, the right of the DIP Lenders to participate in
the DIP Term Facility and any compensation or payment that may be received by
such DIP Lenders incremental to that which would have been received had such DIP
Term Facility remained Pre-Petition Debt are hereby authorized as compensation
for, in consideration for, and solely on account of the agreement of such DIP
Lender to make and/or consent to the DIP Facilities and not as adequate
protection for, repayment of, or otherwise on account of, any Pre-Petition
Debt.
- 17
-
14. Authorization
to Use Proceeds of DIP Facilities. Pursuant to the terms
and conditions of the DIP Credit Documents and in a manner consistent with the
Final Budget, each of the Debtors is authorized to use the advances under the
DIP Facilities. The Debtors’ right to use the extensions of credit
under the DIP Facilities shall terminate upon notice being provided by the Agent
(i) that an Event of Default has occurred and is continuing or (ii) on the
Maturity Date. Nothing in this Final Order shall authorize the
disposition of any assets of the Debtors or their respective Bankruptcy Estates
outside the ordinary course of business or the use of the proceeds resulting
therefrom, except as permitted under the DIP Credit Documents (subject to any
required court approval).
15. Cash
Collection. Except as otherwise
permitted in the DIP Credit Documents, cash collections (including, but not
limited to, payments from customers with respect to accounts receivable)
constituting proceeds of assets which constitute DIP Collateral or Pre-Petition
Collateral shall be directed to lock-box and/or deposit accounts (“Cash Collection
Accounts”) under the sole dominion and control of the Agent pursuant to a
structure reasonably satisfactory to the Agent. All amounts collected
in the Cash Collection Accounts will be automatically applied in the manner set
forth in the DIP Credit Documents and after the DIP Obligations have been
indefeasibly paid in full and there is no availability under the DIP Facilities,
in accordance with the Pre-Petition Credit Documents. The Debtors and
the financial institutions where the Debtors’ Cash Collection Accounts are
maintained, including Wells Fargo Bank, National Association, are authorized and
directed to implement and/or continue daily cash sweeps from the Cash Collection
Accounts to an account or accounts maintained at Wells Fargo Bank, National
Association. Any obligations of the Debtors for treasury, depositary or cash
management services, including without limitation, overnight overdraft services,
controlled disbursement, automated clearinghouse transactions, return items,
overdrafts, and interstate depository network services provided post-petition by
Wells Fargo Bank, National Association shall be secured pari passu with the DIP
Obligations.
- 18
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16. Monitoring
of Collateral. The DIP Lenders shall be
permitted to retain consultants and financial advisors at the expense of the
Debtors, and the DIP Lenders and their consultants and advisors shall be given
reasonable access to the Pre-Petition Collateral and DIP
Collateral.
17. Financial
Reporting. The Debtors shall
provide the DIP Lenders with all financial and other reporting in full
compliance with the Pre-Petition Credit Documents and DIP Credit
Documents.
18. DIP and
Adequate Protection Lien Perfection. This Final Order shall
be sufficient and conclusive evidence of the validity, perfection, and priority
of the DIP Liens without the necessity of filing or recording any financing
statement, deed of trust, mortgage, security agreement, notice of lien, or other
instrument or document which may otherwise be required under the law of any
jurisdiction or the taking of any other action to validate or perfect the DIP
Liens or to entitle the DIP Liens to the priorities granted
herein. Notwithstanding the foregoing, the DIP Lenders may, in their
sole discretion, file such financing statements, deeds of trust, mortgages,
security agreements, notices of lien, and other instruments or documents and
take such other actions, and are hereby granted relief from the automatic stay
of section 362(a) of the Bankruptcy Code in order to do so, and all such
financing statements, mortgages, security agreements, notices of lien, and other
instruments or documents shall be deemed to have been filed or recorded at the
time and on the date of the Interim Order and shall continue in full force and
effect through and after the entry of this Final Order. The Debtors
shall execute and deliver to the DIP Lenders all such financing statements,
mortgages, security agreements, notices or lien, and other instruments and
documents as the DIP Lenders may reasonably request to evidence, confirm,
validate, perfect, or insure the contemplated priority of the DIP
Liens. The DIP Lenders, in their sole discretion, may file a
photocopy of this Final Order as a financing statement with any recording
officer designated to file financing statements or with any registry or recorder
of deeds or similar office in any jurisdiction in which any of the Debtors has
real or personal property, and in such event, the subject filing or recording
officer shall be authorized to file or record such copy of this Final
Order. The DIP Lenders shall also deemed to be the secured party
under account control agreements to which the Debtors are a party and loss payee
under the Debtors’ insurance policies, shall have all rights and powers
attendant to that position (including, without limitation, rights of
enforcement), and shall act in that capacity and distribute any proceeds
recovered or received by them in accordance with the terms of the DIP Credit
Documents.
- 19
-
19. Waiver of
Claims and Causes of Action. Subject to paragraph 29
of this Final Order, all claims and causes of action of the Debtors and their
respective Bankruptcy Estates against the Pre-Petition Lenders on account of the
Pre-Petition Credit Documents, Pre-Petition Debt, Pre-Petition Liens, or
otherwise, including, but not limited to, any claims for preference, fraudulent
conveyance, or other claims arising under the Bankruptcy Code or applicable
state or federal law, and any and all claims regarding the validity, priority,
perfection or avoidability of the Pre-Petition Liens or Pre-Petition Debt are
hereby released, relinquished, and waived.
20. Waiver of
Surcharge Rights. As a further condition
of the DIP Facilities and any obligation of the DIP Lenders to make credit
extensions pursuant to the DIP Credit Documents, the Debtors and their
respective Bankruptcy Estates (and any successors thereto or any representatives
thereof, including any trustees appointed in the Bankruptcy Cases or Successors
Cases) shall be deemed to have waived any rights, benefits, or causes of action
under section 506(c) of the Bankruptcy Code as they may relate to the
Pre-Petition Collateral or DIP Collateral or be asserted against the
Pre-Petition Lenders or DIP Lenders. Nothing contained in this Final
Order shall be deemed a consent by the Pre-Petition Lenders or DIP Lenders to
any charge, lien, assessment, or claim against the Pre-Petition Collateral or
DIP Collateral under section 506(c) or otherwise.
- 20
-
21. Disposition
of the DIP Collateral. The Debtors shall not
sell, transfer, lease, encumber, or otherwise dispose of any portion of the DIP
Collateral except as otherwise provided for in the DIP Credit Documents and
approved by the DIP Lenders and this Bankruptcy Court.
22. No
Marshaling/Applications of Proceeds. The Pre-Petition Lenders
and DIP Lenders shall not be subject to the equitable doctrine of “marshaling”
or any other similar doctrine with respect to the Pre-Petition Liens or DIP
Liens or any of the Pre-Petition Collateral or DIP Collateral.
23. Events of
Default. Subject to the
provisions of the DIP Credit Documents, unless and until all DIP Obligations are
indefeasibly paid in cash in full and discharged (or other arrangements for
payment of such amounts satisfactory (in their sole discretion) to the DIP
Lenders have been made), the protections afforded the DIP Lenders pursuant to
this Final Order and under the DIP Credit Documents and any actions taken
pursuant thereto shall survive the entry of any order confirming a chapter 11
plan or converting the Bankruptcy Cases into cases under chapter 7 of the
Bankruptcy Code, and the DIP Liens and DIP Superpriority Claim shall continue in
the Bankruptcy Cases and in any Successor Cases, and such DIP Liens and DIP
Superpriority Claims shall maintain their respective priority as provided by
this Final Order.
- 21
-
(a) No Additional
Liens. From and after entry of this Final Order, unless the
DIP Lenders and 66 2/3% of the Pre-Petition Lenders have provided their prior
written consent or all DIP Obligations and Pre-Petition Debt have been
indefeasibly paid in cash in full and discharged, it shall be an Event of
Default if an order is entered in these Bankruptcy Cases or in any Successor
Cases that authorizes the obtaining of credit or the incurring of indebtedness
that is secured by a security, mortgage, or collateral interest or other lien on
all or any portion of the DIP Collateral and/or entitled to priority
administrative status which is superior to or pari passu with those granted
pursuant to this Final Order to the DIP Lenders or Pre-Petition
Lenders.
(b) Proceeds of Subsequent
Financing. Without limiting the provisions and protections of
any part of this Final Order, it shall constitute an Event of Default if at any
time prior to the indefeasible repayment in cash in full of all DIP Obligations
and Pre-Petition Debt, the Debtors, their respective Bankruptcy Estates, any
trustee, any examiner with enlarged powers, or any responsible officer
subsequently appointed, shall obtain credit or incur debt pursuant to sections
364(b), 364(c), or 364(d) of the Bankruptcy Code in violation of the DIP Credit
Documents.
24. Rights
and Remedies Upon Occurrence of Event(s) of Default.
(a) Upon
the occurrence of an Event of Default, the DIP Lenders are authorized to
exercise their remedies pursuant to the DIP Credit Documents, at law, and in
equity. All proceeds realized in connection with the exercise of the
rights and remedies of the DIP Lenders shall be applied to the DIP Obligations
and Pre-Petition Debt under, and in accordance with the provisions of, the DIP
Credit Documents. Five (5) business days following the giving of
notice by the Agent to the Debtors of the occurrence of an Event of Default and
the filing of such notice with the Court, the automatic stay under section
362(a) of the Bankruptcy Code will be automatically lifted without need for
further order of the Bankruptcy Court to allow the DIP Lenders to take any and
all actions in furtherance of their rights and remedies, as if no Bankruptcy
Cases were pending under the Bankruptcy Code, unless the Bankruptcy Court
determines, within such five (5) business day period, that no Event of Default
has occurred and is continuing.
- 22
-
(b) Upon
the expiration of the fifth business day following the giving of notice by the
Agent to the Debtors of the occurrence of an Event of Default, any automatic
stay otherwise applicable to the DIP Lenders is hereby modified so that, (i)
after the occurrence of any Event of Default and (ii) at any time thereafter
during the continuance of such Event of Default, upon written notice of such
occurrence to the Debtors, the DIP Lenders shall be entitled to exercise their
rights and remedies in accordance with the DIP Credit Documents, including,
without limitation, to terminate any obligations of the DIP Lenders under the
DIP Credit Documents and/or demand payment and seek enforcement of the DIP
Obligations then outstanding and take any action, in their sole discretion,
necessary to preserve and protect the DIP Collateral. Notwithstanding
the immediately preceding sentence, immediately following the giving of notice
by the Agent to the Debtors of the occurrence of an Event of Default: (i) the
Debtors shall continue to deliver and cause the delivery of the net proceeds of
the DIP Collateral to the DIP Lenders as provided in the DIP Credit Documents,
provided, however, that nothing in this sentence shall be applicable in the
instance that a Chapter 7 trustee is appointed; (ii) the DIP Lenders shall
continue to apply such proceeds in accordance with the provisions of the DIP
Credit Documents; (iii) the Debtors shall have no right to use any of such
proceeds or any other cash collateral other than towards the payment and
satisfaction of the DIP Obligations, as provided in the applicable DIP Credit
Documents, provided, however, that the Debtors shall be permitted to pay all
postpetition expenses (other than Carve-Out Expenses which shall be payable from
the Carve-Out) that they incurred prior to the giving of notice by the Agent of
an Event of Default so long as such expenses (at the time of incurrence) were
permitted under the Final Budget; and (iv) any obligation otherwise imposed on
the DIP Lenders to provide any loan or advance to the Debtors pursuant to the
DIP Credit Documents shall immediately be suspended.
- 23
-
25. Proofs of
Claim. The
Pre-Petition Lenders and DIP Lenders shall not be required to file proofs of
claim in these Bankruptcy Cases or in any Successor Cases, and the Debtors’
stipulations under this Final Order shall be deemed to constitute a timely filed
proof of claim. Any order entered by this Court in connection with
the establishment of a bar date for any claim (including without limitation
administrative claims) in these Bankruptcy Cases or any Successor Cases shall
not apply to the Pre-Petition Lenders and DIP Lenders.
26. Good
Faith Under Section 364(e); No Modification or Stay of this Interim
Order. The
DIP Lenders are extending credit pursuant to this Final Order in “good-faith”
within the meaning of section 364(e) of the Bankruptcy Code, and the credit
extended by the DIP Lenders, pursuant to this Final Order, in connection with
the DIP Facilities pursuant to the DIP Credit Documents shall be deemed to be
extended in good faith within the meaning of section 364(e) of the Bankruptcy
Code, and the DIP Lenders are entitled to the protections afforded by section
364(e) of the Bankruptcy Code, and no reversal, modification, amendment, or
vacation of this Final Order shall affect the validity and enforceability of any
advances made hereunder or the liens, rights, claims, or priority authorized or
created hereby. Notwithstanding any such potential reversal,
modification, amendment, or vacation, any liens, rights, claims, or priorities
granted to the DIP Lenders hereunder arising prior to the effective date of such
reversal, modification, amendment, or vacation of any DIP Liens and DIP
Superpriority Claims granted to the DIP Lenders shall be governed in all
respects by the original provisions of this Final Order, and the DIP Lenders
shall be entitled to all of the rights, liens, priorities, remedies, privileges,
and benefits, including the DIP Liens and DIP Superpriority Claims granted
herein, with respect to any such claim. Since the loans made pursuant
to the DIP Credit Documents are made in reliance on this Final Order, the
obligations owed to the DIP Lenders prior to the effective date of any appeal,
modification, amendment, or vacation of this Final Order shall not, as a result
of any subsequent order in the Bankruptcy Cases or in any Successor Cases, be
subordinated, lose their lien priority or superpriority administrative expense
claim status, or be deprived of the benefit of the status of the liens and
claims granted to the DIP Lenders under this Final Order and/or the DIP Credit
Documents.
- 24
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27. Expenses
of the DIP Lenders. As provided in the DIP
Credit Documents, the Debtors shall pay all reasonable out-of-pocket costs and
expenses (including legal fees of the Agent’s counsel) incurred by the Agent in
connection with the Debtors’ Bankruptcy Cases and the DIP Facilities ten (10)
days after the Agent provides a summary of such costs and expenses to the
Debtors, the Committee, counsel to the Committee, and the US Trustee, including
costs and expenses of (i) the Agent’s due diligence, including field
examinations, appraisals, and environmental audits, and (ii) preparing,
administering, syndicating, monitoring, and enforcing the DIP Credit
Documents. All such expenses were fully earned upon entry of the
Interim Order and are due and payable upon the entry of this Final
Order. Payment of such fees shall not be subject to allowance by the
Bankruptcy Court and shall not be required to comply with the U.S. Trustee fee
guidelines.
- 25
-
28. Payment
of Compensation. Nothing herein shall be construed as consent
to the allowance of any professional fees or expenses of any of the Debtors or
Committee or shall affect the right of the Agent, DIP Lenders, Pre-Petition
Lenders, or Pre-Petition Agent to object to the allowance and payment of such
fees and expenses.
29. Binding
Effect. The provisions of this Final Order, including any
findings of fact and conclusions of law, shall be binding on and shall inure to
the benefit of the DIP Lenders, Agent, Pre-Petition Lenders, Pre-Petition Agent,
Debtors, Bankruptcy Estates, and their respective successors and assigns
(including any trustee or other fiduciary hereinafter appointed as a legal
representative of the Debtors or with respect to the property of the estates of
the Debtors) whether in the Bankruptcy Cases, in any Successor Cases, or upon
dismissal of any such chapter 11 or chapter 7 case unless a Chapter 7 or Chapter
11 trustee is appointed during the Challenge Period (as defined below),
excluding any extensions thereof granted on behalf of the Committee, except as
otherwise ordered by the Court. The waivers, admissions, and
acknowledgements provided in this Final Order shall be binding on the Debtors,
their respective Bankruptcy Estates, creditors, and equity holders, and all
other parties-in-interest, except that the Committee shall have until June 15,
2010 (the “Challenge
Period”) to commence an adversary proceeding or contested matter on
behalf of the Committee or any Bankruptcy Estate, against the Pre-Petition Agent
or Pre-Petition Lenders for the purpose of challenging the validity, extent,
priority, perfection, and enforceability of the Pre-Petition Debt or
Pre-Petition Liens or otherwise asserting any claims or causes of action against
the Pre-Petition Agent and/or Pre-Petition Lenders arising as a result of the
relationship between the Debtors and Pre-Petition Lenders (each a “Challengeable
Claim”). After the Challenge Period has expired, the Committee
and all of the equity holders, creditors, and other parties-in-interest in the
Bankruptcy Cases shall be bound by the waivers, admissions, and acknowledgements
of the Debtors contained in this Final Order other than with respect to any
Challengeable Claim timely filed by the Committee during the Challenge Period,
and the Committee waives any right to bring any additional Challengeable Claim,
whether separately filed or through an amendment of any pleading asserting a
Challengeable Claim timely filed during the Challenge Period; provided, however, that if a
Challengeable Claim is brought by the Committee during the Challenge Period,
parties to that litigation will be bound by any consensual settlement thereof or
a final order of the Court that ultimately determines the merits of such
claim. Except for the statutory rights of any Chapter 11 or Chapter 7
trustee, nothing in this order vests or confers on any person (as defined in the
Bankruptcy Code), including any statutory committee appointed in these cases,
standing or authority to pursue any cause of action belonging to the Debtors or
their estates, including claims and defenses, if any, with respect to the
Prepetition Credit Documents.
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-
30. No
Waiver. The
failure of the DIP Lenders to seek relief or otherwise exercise their rights and
remedies under the DIP Credit Documents or otherwise, as applicable, shall not
constitute a waiver of any of the DIP Lenders’ rights hereunder, thereunder, or
otherwise. Notwithstanding anything herein, the entry of this Final
Order is without prejudice to, and does not constitute a waiver of, expressly or
implicitly, or otherwise impair any of the rights or remedies of the DIP Lenders
under the Bankruptcy Code or under non-bankruptcy law, including, without
limitation, the rights of the DIP Lenders upon an Event of Default (i) to
request conversion of any or all of the Bankruptcy Cases to cases under chapter
7 of the Bankruptcy Code, dismissal of the Bankruptcy Cases, or the appointment
of a trustee in the Bankruptcy Cases, or (ii) to propose, subject to the
provisions of section 1121 of the Bankruptcy Code, a chapter 11 plan, or (iii)
to exercise any of the rights, claims, or privileges (whether legal, equitable,
or otherwise) of the DIP Lenders, including against any non-Debtor
entity. Neither the commencement of the Bankruptcy Cases nor the
entry of this Final Order shall limit or otherwise modify the rights and
remedies of the DIP Lenders upon an Event of Default with respect to non-Debtor
entities or third parties or their respective assets, whether such rights and
remedies arise under the DIP Credit Documents, applicable law, or
equity.
- 27
-
31. 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.
32. Section
552(b). The
Pre-Petition Lenders and DIP Lenders shall be entitled to all of 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
Pre-Petition Debt, Pre-Petition Liens, Pre-Petition Collateral, DIP Obligations,
DIP Liens, and DIP Collateral and any proceeds, products, offspring, or profits
of any of the foregoing.
33. Amendment. Upon entry of this Final
Order, the Debtors and DIP Lenders may amend, modify, supplement, or waive any
provision of the DIP Credit Documents without further approval of the Bankruptcy
Court, unless such amendment, modification, supplement, or waiver (x) increases
the interest rate (other than as a result of the imposition of the default
rate), (y) increases the commitments of the DIP Lenders under the DIP Credit
Documents, or (z) changes the Maturity Date. Except as otherwise
provided herein, no waiver, modification, or amendment of any of the provisions
hereof shall be effective unless set forth in writing, signed by, or on behalf
of, all the Debtors and a majority of the DIP Lenders and approved by the
Bankruptcy Court.
- 28
-
34. Survival
of Final Order. The provisions of this
Final Order and any actions taken pursuant hereto shall survive entry of any
order which may be entered (i) confirming any chapter 11 plan in the Bankruptcy
Cases, (ii) converting any of the Bankruptcy Cases to a case under chapter 7 of
the Bankruptcy Code, (iii) to the extent authorized by applicable law,
dismissing any of the Bankruptcy Cases, (iv) withdrawing of the reference of any
of the Bankruptcy Cases from the Bankruptcy Court, or (v) providing for
abstention from handling or retaining of jurisdiction of any of the Bankruptcy
Cases in the Bankruptcy Court. The terms and provisions of this Final
Order, including the DIP Liens and DIP Superpriority Claims granted pursuant to
this Final Order and other DIP Credit Documents and any other protections
granted the DIP Lenders, shall continue in full force and effect notwithstanding
the entry of such order, and such DIP Liens and DIP Superpriority Claims and
other protections for the DIP Lenders shall maintain their priority as provided
by this Final Order until all the DIP Obligations and Pre-Petition Debt have
been indefeasibly paid in cash in full and discharged (such payment being
without prejudice to any terms or provisions contained in the DIP Facilities
which survive such discharge by their terms). The DIP Obligations
shall not be discharged by the entry of an order confirming a chapter 11 plan;
the Debtors having waived such discharge pursuant to section 1141(d)(4) of the
Bankruptcy Code.
35. Inconsistency. In the event of any
inconsistency between the terms and conditions of the DIP Credit Documents and
of this Final Order, the provisions of this Final Order shall govern and
control.
- 29
-
36. Enforceability. This Final Order shall
constitute findings of fact and conclusions of law pursuant to the Bankruptcy
Rule 7052 and shall take effect and be fully enforceable immediately upon
execution hereof.
37. No
Waivers or Modification of this Final Order. The Debtors irrevocably
waive any right to seek any modification or extension of this Final Order
without the prior written consent of the DIP Lenders and no such consent shall
be implied by any other action, inaction, or acquiescence of the DIP
Lenders.
38. Waiver of
any Applicable Stay, including Bankruptcy Rule 6004(h). Any applicable stay
(including, without limitation, under Bankruptcy Rule 6004(h)) is hereby waived
and shall not apply to this Final Order.
39. Retention
of Jurisdiction. The Bankruptcy Court has
and will retain jurisdiction to enforce this Final Order according to its
terms.
SO
ORDERED by the Bankruptcy Court, this 16 day of April, 2010.
/s/ Peter J. Walsh
|
|
THE
HONORABLE PETER J. WALSH
|
|
UNITED
STATES BANKRUPTCY JUDGE
|
- 30
-
Exhibit
A to Final Order
Final
Budget
See
Attached.
Orleans
Homebuilders, Inc.
DIP
- 13-Week Cash Flow Forecast
Beginning
WE April 23-July 16 2010
(Actual
Dollars)
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
10
|
11
|
12
|
13
|
Cumulative
|
|||||||||||||||||||||||||||||||||||||||||||
Week Ending
|
23-Apr
|
30-Apr
|
7-May
|
14-May
|
21-May
|
28-May
|
4-Jun
|
11-Jun
|
18-Jun
|
25-Jun
|
2-Jul
|
9-Jul
|
16-Jul
|
13 Weeks
|
||||||||||||||||||||||||||||||||||||||||||
#
of Home Closings
|
8 | 18 | 8 | 7 | 12 | 9 | 16 | 1 | 11 | 8 | 10 | - | - | 108 | ||||||||||||||||||||||||||||||||||||||||||
Cash
Receipts
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Net
Settlement Proceeds
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
North
|
1,076,477 | 1,181,557 | 1,228,549 | 1,228,287 | 2,769,535 | 1,637,314 | 3,308,155 | 682,350 | 1,281,221 | 1,019,186 | 1,841,445 | - | - | 17,254,074 | ||||||||||||||||||||||||||||||||||||||||||
South
|
1,133,479 | 2,461,484 | 1,883,407 | 1,920,429 | 1,960,785 | 891,112 | 1,324,745 | 86,190 | 1,726,389 | 1,347,911 | 655,978 | - | - | 15,391,909 | ||||||||||||||||||||||||||||||||||||||||||
Midwest
|
- | 244,758 | - | 30,595 | - | - | 883,082 | - | 630,101 | - | 854,786 | - | - | 2,643,321 | ||||||||||||||||||||||||||||||||||||||||||
Florida
|
- | - | - | - | - | - | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||
Total
Settlement Proceeds
|
2,209,955 | 3,887,799 | 3,111,955 | 3,179,311 | 4,730,320 | 2,528,426 | 5,515,982 | 768,540 | 3,637,711 | 2,367,097 | 3,352,209 | - | - | 35,289,305 | ||||||||||||||||||||||||||||||||||||||||||
Other
Receipts - CMSG
|
64,906 | - | 64,906 | - | 64,906 | - | 64,906 | - | 64,906 | - | 64,906 | - | 64,906 | 454,345 | ||||||||||||||||||||||||||||||||||||||||||
Other
Receipts - FTI (partial retainer return)
|
350,000 | - | - | - | - | - | - | - | - | - | - | - | - | 350,000 | ||||||||||||||||||||||||||||||||||||||||||
TOTAL
CASH RECIEPTS
|
2,624,862 | 3,887,799 | 3,176,862 | 3,179,311 | 4,795,226 | 2,528,426 | 5,580,888 | 768,540 | 3,702,617 | 2,367,097 | 3,417,115 | - | 64,906 | 36,093,649 | ||||||||||||||||||||||||||||||||||||||||||
Disbursements
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Pre-Petition
Disbursements and Deposits
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
North
|
425,000 | 425,000 | 425,000 | - | - | - | - | - | - | - | - | - | - | 1,275,000 | ||||||||||||||||||||||||||||||||||||||||||
South
|
425,000 | 425,000 | 425,000 | - | - | - | - | - | - | - | - | - | - | 1,275,000 | ||||||||||||||||||||||||||||||||||||||||||
Midwest
|
150,000 | 150,000 | 150,000 | - | - | - | - | - | - | - | - | - | - | 450,000 | ||||||||||||||||||||||||||||||||||||||||||
Florida
|
- | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||||||||
Total
Pre-Petition Critical Vendor Payments
|
1,000,000 | 1,000,000 | 1,000,000 | - | - | - | - | - | - | - | - | - | - | 3,000,000 | ||||||||||||||||||||||||||||||||||||||||||
Utility
Deposits
|
- | - | - | - | - | - | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||
Other
Pre-Petition Approved Obligations
|
- | - | - | 109,526 | - | - | - | - | - | - | - | - | - | 109,526 | ||||||||||||||||||||||||||||||||||||||||||
Total
BK-related Payments
|
- | - | - | 109,526 | - | - | - | - | - | - | - | - | - | 109,526 | ||||||||||||||||||||||||||||||||||||||||||
TOTAL
PRE-PETITION DISBURSEMENTS
|
1,000,000 | 1,000,000 | 1,000,000 | 109,526 | - | - | - | - | - | - | - | - | - | 3,109,526 | ||||||||||||||||||||||||||||||||||||||||||
Post-Petition
Operating Disbursements
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
North
|
1,468,045 | 2,360,558 | 1,445,885 | 771,238 | 2,079,267 | 1,355,632 | 1,059,548 | 964,927 | 795,714 | 576,333 | 184,865 | 224,846 | 428,655 | 13,715,512 | ||||||||||||||||||||||||||||||||||||||||||
South
|
1,854,576 | 1,244,843 | 789,876 | 719,287 | 1,182,361 | 1,055,164 | 687,277 | 589,554 | 462,993 | 340,819 | 125,786 | 45,380 | 231,936 | 9,329,851 | ||||||||||||||||||||||||||||||||||||||||||
Midwest
|
315,938 | - | - | 261,817 | - | 261,817 | - | - | - | - | - | - | - | 839,571 | ||||||||||||||||||||||||||||||||||||||||||
Florida
|
- | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
Total
WIP Disbursements
|
3,638,559 | 3,605,401 | 2,235,761 | 1,752,342 | 3,261,628 | 2,672,613 | 1,746,825 | 1,554,481 | 1,258,707 | 917,152 | 310,650 | 270,226 | 660,591 | 23,884,934 | ||||||||||||||||||||||||||||||||||||||||||
Payroll
- net
|
- | 488,591 | - | 490,321 | - | 486,795 | - | 485,631 | - | 487,832 | - | 487,834 | - | 2,927,003 | ||||||||||||||||||||||||||||||||||||||||||
Employer
Taxes
|
- | 95,155 | - | 85,703 | - | 94,927 | - | 85,069 | - | 95,168 | - | 85,321 | - | 541,343 | ||||||||||||||||||||||||||||||||||||||||||
401(K)
|
- | 51,676 | - | 51,016 | - | 51,181 | - | 51,577 | - | 51,423 | - | 51,375 | - | 308,248 | ||||||||||||||||||||||||||||||||||||||||||
RIF
|
- | (56,434 | ) | - | (93,934 | ) | - | (153,326 | ) | - | (153,326 | ) | - | (233,474 | ) | - | (233,474 | ) | - | (923,966 | ) | |||||||||||||||||||||||||||||||||||
Bonuses
|
- | 24,000 | - | 24,000 | - | 24,000 | - | 24,000 | - | 24,000 | - | 24,000 | - | 144,000 | ||||||||||||||||||||||||||||||||||||||||||
Commissions
|
- | 170,069 | - | 101,286 | - | 170,220 | - | 101,411 | - | 170,923 | - | 101,022 | - | 814,931 | ||||||||||||||||||||||||||||||||||||||||||
Severance
|
- | 244,547 | - | - | - | 264,083 | - | - | - | 219,669 | - | 402,783 | - | 1,131,082 | ||||||||||||||||||||||||||||||||||||||||||
Severance
- CFO
|
- | - | - | 60,000 | - | - | - | - | - | - | - | - | - | 60,000 | ||||||||||||||||||||||||||||||||||||||||||
Accrued
Vacation
|
30,000 | - | - | 34,650 | - | - | - | 17,510 | - | - | - | 225,492 | - | 307,653 | ||||||||||||||||||||||||||||||||||||||||||
MIP
|
- | - | - | - | - | - | - | - | - | - | 3,584,120 | - | - | 3,584,120 | ||||||||||||||||||||||||||||||||||||||||||
Other
Benefits
|
113,000 | 82,290 | 121,250 | 93,040 | 123,750 | 93,040 | 132,000 | 103,790 | 134,500 | 103,790 | 133,000 | 104,790 | 135,500 | 1,473,740 | ||||||||||||||||||||||||||||||||||||||||||
Total
Payroll and Related
|
143,000 | 1,099,893 | 121,250 | 846,082 | 123,750 | 1,030,921 | 132,000 | 715,663 | 134,500 | 919,331 | 3,717,120 | 1,249,143 | 135,500 | 10,368,153 | ||||||||||||||||||||||||||||||||||||||||||
Group
Insurance / D&O
|
- | 29,302 | 29,704 | - | - | - | 4,042 | - | - | - | 1,804,558 | - | - | 1,867,606 | ||||||||||||||||||||||||||||||||||||||||||
Utilities
|
45,095 | 51,617 | 45,095 | 45,247 | 45,095 | 51,617 | 45,095 | 45,247 | 45,095 | 51,617 | 45,095 | 45,247 | 45,095 | 606,260 | ||||||||||||||||||||||||||||||||||||||||||
Office
Rent and Leases
|
1,280 | 1,747 | 159,168 | 271 | 1,032 | 2,303 | 158,367 | 1,072 | 795 | 1,438 | 158,367 | 1,072 | 795 | 487,707 | ||||||||||||||||||||||||||||||||||||||||||
Advertising
|
39,959 | 39,959 | 39,959 | 39,959 | 39,959 | 39,959 | 39,959 | 39,959 | 39,959 | 39,959 | 39,959 | 39,959 | 39,959 | 519,464 | ||||||||||||||||||||||||||||||||||||||||||
Sales
Office
|
31,227 | 31,227 | 31,227 | 31,227 | 31,227 | 31,227 | 31,227 | 31,227 | 31,227 | 31,227 | 31,227 | 31,227 | 31,227 | 405,955 | ||||||||||||||||||||||||||||||||||||||||||
G&A
|
50,138 | 50,138 | 50,138 | 50,138 | 50,138 | 50,138 | 50,138 | 50,138 | 50,138 | 50,138 | 50,138 | 50,138 | 50,138 | 651,797 | ||||||||||||||||||||||||||||||||||||||||||
Warranty
|
31,619 | 31,619 | 31,619 | 31,619 | 31,619 | 31,619 | 31,619 | 31,619 | 31,619 | 31,619 | 31,619 | 31,619 | 31,619 | 411,048 | ||||||||||||||||||||||||||||||||||||||||||
Field
Overhead
|
34,583 | 34,583 | 34,583 | 34,583 | 34,583 | 34,583 | 34,583 | 34,583 | 34,583 | 34,583 | 34,583 | 34,583 | 34,583 | 449,579 | ||||||||||||||||||||||||||||||||||||||||||
Real
Estate Taxes
|
15,221 | 9,202 | 212,123 | 4,350 | 71,195 | 86,986 | 77,669 | - | - | - | 18,830 | - | 15,662 | 511,239 | ||||||||||||||||||||||||||||||||||||||||||
Other
/ CMSG
|
852 | 852 | 852 | 852 | 852 | 852 | 852 | 852 | 852 | 852 | 852 | 852 | 852 | 11,072 | ||||||||||||||||||||||||||||||||||||||||||
Total
SG&A and Other
|
249,974 | 280,246 | 634,468 | 238,246 | 305,699 | 329,285 | 473,551 | 234,698 | 234,268 | 241,433 | 2,215,228 | 234,698 | 249,931 | 5,921,725 | ||||||||||||||||||||||||||||||||||||||||||
TOTAL
POST-PETITION DISBURSEMENTS
|
4,031,533 | 4,985,540 | 2,991,479 | 2,836,670 | 3,691,077 | 4,032,818 | 2,352,376 | 2,504,842 | 1,627,475 | 2,077,915 | 6,242,998 | 1,754,066 | 1,046,021 | 40,174,812 | ||||||||||||||||||||||||||||||||||||||||||
TOTAL
DISBURSEMENTS (PRE/POST PETITION)
|
5,031,533 | 5,985,540 | 3,991,479 | 2,946,196 | 3,691,077 | 4,032,818 | 2,352,376 | 2,504,842 | 1,627,475 | 2,077,915 | 6,242,998 | 1,754,066 | 1,046,021 | 43,284,338 | ||||||||||||||||||||||||||||||||||||||||||
Net
Operating Cash Generated (Used)
|
(2,406,672 | ) | (2,097,741 | ) | (814,618 | ) | 233,114 | 1,104,149 | (1,504,392 | ) | 3,228,512 | (1,736,302 | ) | 2,075,142 | 289,182 | (2,825,883 | ) | (1,754,066 | ) | (981,115 | ) | (7,190,689 | ) | |||||||||||||||||||||||||||||||||
Cumulative
Operating Cash Generated (Used)
|
(2,406,672 | ) | (4,504,412 | ) | (5,319,030 | ) | (5,085,916 | ) | (3,981,767 | ) | (5,486,159 | ) | (2,257,647 | ) | (3,993,949 | ) | (1,918,807 | ) | (1,629,625 | ) | (4,455,508 | ) | (6,209,574 | ) | (7,190,689 | ) | ||||||||||||||||||||||||||||||
Financial
and Bankruptcy Related
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
DIP
facility fees and interest (post-petition)
|
- | - | - | - | 465,639 | - | - | - | 482,420 | - | - | - | 500,659 | 1,448,718 | ||||||||||||||||||||||||||||||||||||||||||
US
Trustee Fees
|
- | 13,000 | - | - | - | - | - | - | - | - | - | - | - | 13,000 | ||||||||||||||||||||||||||||||||||||||||||
Professional
Fees (see
schedule)
|
785,000 | 85,000 | 85,000 | 535,000 | 1,345,000 | 85,000 | 85,000 | 535,000 | 1,493,000 | 85,000 | 85,000 | 535,000 | 1,217,000 | 6,955,000 | ||||||||||||||||||||||||||||||||||||||||||
Audit
fees - PWC (TBD)
|
- | - | - | - | - | - | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||
TOTAL
FINANCIAL AND BANKRUPCY RELATED
|
785,000 | 98,000 | 85,000 | 535,000 | 1,810,639 | 85,000 | 85,000 | 535,000 | 1,975,420 | 85,000 | 85,000 | 535,000 | 1,717,659 | 8,416,718 | ||||||||||||||||||||||||||||||||||||||||||
Net
Cash Generated (Used)
|
(3,191,672 | ) | (2,195,741 | ) | (899,618 | ) | (301,886 | ) | (706,490 | ) | (1,589,392 | ) | 3,143,512 | (2,271,302 | ) | 99,722 | 204,182 | (2,910,883 | ) | (2,289,066 | ) | (2,698,774 | ) | (15,607,407 | ) | |||||||||||||||||||||||||||||||
Cumulative
Net Cash Generated (Used)
|
(3,191,672 | ) | (5,387,412 | ) | (6,287,030 | ) | (6,588,916 | ) | (7,295,405 | ) | (8,884,797 | ) | (5,741,285 | ) | (8,012,587 | ) | (7,912,865 | ) | (7,708,683 | ) | (10,619,566 | ) | (12,908,633 | ) | (15,607,407 | ) | ||||||||||||||||||||||||||||||
Liquidity
Rollforward
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cash
Rollforward
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Beginning
Balance
|
1,468,151 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,468,151 | ||||||||||||||||||||||||||||||||||||||||||
Cash
Used/(Generated) less home closings
|
(5,401,627 | ) | (6,083,540 | ) | (4,011,573 | ) | (3,481,196 | ) | (5,436,809 | ) | (4,117,818 | ) | (2,372,470 | ) | (3,039,842 | ) | (3,537,989 | ) | (2,162,915 | ) | (6,263,092 | ) | (2,289,066 | ) | (2,698,774 | ) | (50,896,711 | ) | ||||||||||||||||||||||||||||
Plus:
Loan Borrowings
|
4,933,475 | 6,083,540 | 4,011,573 | 3,481,196 | 5,436,809 | 4,117,818 | 2,372,470 | 3,039,842 | 3,537,989 | 2,162,915 | 6,263,092 | 2,289,066 | 2,698,774 | 50,428,560 | ||||||||||||||||||||||||||||||||||||||||||
Less:
Excess Cash Recapture
|
- | - | - | - | - | - | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||
Ending
Balance
|
1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | ||||||||||||||||||||||||||||||||||||||||||
assumed
max cash balance
|
5,000,000 | 5,000,000 | 5,000,000 | 5,000,000 | 5,000,000 | 5,000,000 | 5,000,000 | 5,000,000 | 5,000,000 | 5,000,000 | 5,000,000 | 5,000,000 | 5,000,000 | |||||||||||||||||||||||||||||||||||||||||||
assumed
min cash balance
|
1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | |||||||||||||||||||||||||||||||||||||||||||
DIP
Rollforward
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Beginning
Balance
|
3,395,578 | 6,119,098 | 8,314,839 | 9,214,456 | 9,516,342 | 10,222,832 | 11,812,224 | 8,668,711 | 10,940,013 | 10,840,292 | 10,636,109 | 13,546,993 | 15,836,059 | 3,395,578 | ||||||||||||||||||||||||||||||||||||||||||
Plus:
Borrowings
|
4,933,475 | 6,083,540 | 4,011,573 | 3,481,196 | 5,436,809 | 4,117,818 | 2,372,470 | 3,039,842 | 3,537,989 | 2,162,915 | 6,263,092 | 2,289,066 | 2,698,774 | 50,428,560 | ||||||||||||||||||||||||||||||||||||||||||
Less:
Repayments from home closings
|
(2,209,955 | ) | (3,887,799 | ) | (3,111,955 | ) | (3,179,311 | ) | (4,730,320 | ) | (2,528,426 | ) | (5,515,982 | ) | (768,540 | ) | (3,637,711 | ) | (2,367,097 | ) | (3,352,209 | ) | - | - | (35,289,305 | ) | ||||||||||||||||||||||||||||||
Less:
Tax refund
|
- | - | - | - | - | - | - | - | - | - | - | - | (3,600,000 | ) | (3,600,000 | ) | ||||||||||||||||||||||||||||||||||||||||
Adjust:
Excess Cash Recapture (waterfall)
|
- | - | - | - | - | - | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||
Ending
Balance
|
6,119,098 | 8,314,839 | 9,214,456 | 9,516,342 | 10,222,832 | 11,812,224 | 8,668,711 | 10,940,013 | 10,840,292 | 10,636,109 | 13,546,993 | 15,836,059 | 14,934,833 | 14,934,833 |
Orleans
Homebuilders, Inc.
DIP
- 13-Week Cash Flow Forecast
Beginning
WE April 23-July 16 2010
(Actual
Dollars)
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
10
|
11
|
12
|
13
|
Cumulative
|
|||||||||||||||||||||||||||||||||||||||||||
Week Ending
|
23-Apr
|
30-Apr
|
7-May
|
14-May
|
21-May
|
28-May
|
4-Jun
|
11-Jun
|
18-Jun
|
25-Jun
|
2-Jul
|
9-Jul
|
16-Jul
|
13 Weeks
|
||||||||||||||||||||||||||||||||||||||||||
Excess
Cash Recapture
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Available
Excess Cash
|
- | - | - | - | - | - | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||
Waterfalled
Cash
|
- | - | - | - | - | - | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||
Cash
Collateral to Carve Out
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Beginning
Balance
|
2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | ||||||||||||||||||||||||||||||||||||||||||
Plus:
Excess Cash Tier 1
|
- | - | - | - | - | - | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||
Ending
Balance
|
2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | ||||||||||||||||||||||||||||||||||||||||||
max
balance
|
2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | 2,500,000 | |||||||||||||||||||||||||||||||||||||||||||
Cash
Collateral to Post Petition LCs
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Available
Excess Cash Tier 2
|
- | - | - | - | - | - | - | - | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||
Beginning
Balance
|
15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | ||||||||||||||||||||||||||||||||||||||||||
Plus:
Excess Cash Tier 2
|
- | - | - | - | - | - | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||
Ending
Balance
|
15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | ||||||||||||||||||||||||||||||||||||||||||
max
balance
|
15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | 15,000,000 | |||||||||||||||||||||||||||||||||||||||||||
Cash
Collateral to DIP Revolver Commitment
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Available
Excess Cash Tier 3
|
- | - | - | - | - | - | - | - | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||
Beginning
Balance
|
5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | ||||||||||||||||||||||||||||||||||||||||||
Plus:
Excess Cash Tier 3
|
- | - | - | - | - | - | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||
Ending
Balance
|
5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | 5,785,153 | ||||||||||||||||||||||||||||||||||||||||||
max
balance
|
25,000,000 | 25,000,000 | 25,000,000 | 25,000,000 | 25,000,000 | 25,000,000 | 25,000,000 | 25,000,000 | 25,000,000 | 25,000,000 | 25,000,000 | 25,000,000 | 25,000,000 | |||||||||||||||||||||||||||||||||||||||||||
Repay
DIP Term Facility
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Available
Excess Cash Tier 4
|
- | - | - | - | - | - | - | - | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||
Beginning
Balance
|
- | - | - | - | - | - | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||
Plus:
Excess Cash Tier 4
|
- | - | - | - | - | - | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||
Ending
Balance
|
- | - | - | - | - | - | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||
max
balance
|
80,000,000 | 80,000,000 | 80,000,000 | 80,000,000 | 80,000,000 | 80,000,000 | 80,000,000 | 80,000,000 | 80,000,000 | 80,000,000 | 80,000,000 | 80,000,000 | 80,000,000 | |||||||||||||||||||||||||||||||||||||||||||
Repay
Pre-Petition Bank Debt
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Available
Excess Cash Tier 5
|
- | - | - | - | - | - | - | - | - | - | - | - | - | |||||||||||||||||||||||||||||||||||||||||||
Beginning
Balance
|
- | - | - | - | - | - | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||
Plus:
Excess Cash Tier 5
|
- | - | - | - | - | - | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||
Ending
Balance
|
- | - | - | - | - | - | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||||||||
max
balance
|
231,000,000 | 231,000,000 | 231,000,000 | 231,000,000 | 231,000,000 | 231,000,000 | 231,000,000 | 231,000,000 | 231,000,000 | 231,000,000 | 231,000,000 | 231,000,000 | 231,000,000 |