shl Doc 95 Filed 11/18/13 Entered 11/18/13 20:08:27 Main Document Pg 1 of 89

Transcription

1 Pg 1 of 89 Hearing Date: December 2, 2013 at 11:00 a.m. (Prevailing Eastern Time) Committee Objection Deadline: November 22, 2013 at 5:00 p.m. (Prevailing Eastern Time) Objection Deadline: November 20, 2013 at 4:00 p.m. (Prevailing Eastern Time) Reply Deadline: November 26, 2013 (Prevailing Eastern Time) AKIN GUMP STRAUSS HAUER & FELD LLP One Bryant Park New York, New York Tel: (212) Fax: (212) Lisa G. Beckerman Rachel Ehrlich Albanese AKIN GUMP STRAUSS HAUER & FELD LLP 1333 New Hampshire Avenue, N.W. Washington, DC Tel: (202) Fax: (202) Scott L. Alberino (Admitted Pro Hac Vice) Proposed Counsel to the Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK Chapter 11 In re: METRO AFFILIATES, INC., et al., 1 Case No (SHL) Jointly Administered Debtors. NOTICE OF FILING FINAL ORDER PURSUANT TO 11 U.S.C. 105, 361, 362, 363, 364 AND 507 AND RULES 2002, 4001 AND 9014 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE (I) AUTHORIZING THE DEBTORS TO OBTAIN POST-PETITION SECURED FINANCING WITH PRIORITY OVER CERTAIN EXISTING SECURED INDEBTEDNESS AND WITH ADMINISTRATIVE SUPERPRIORITY, (II) GRANTING LIENS, (III) AUTHORIZING THE DEBTORS TO USE CASH COLLATERAL AND PROVIDING FOR ADEQUATE PROTECTION AND (IV) MODIFYING THE AUTOMATIC STAY PLEASE TAKE NOTICE that on November 4, 2013, the above-captioned debtors and debtors in possession (collectively, the Debtors ) 1 filed the Debtors Motion for Entry of Interim 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal taxpayer identification number, are: 180 Jamaica Corp. (7630); Amboy Bus Co., Inc. (2369); Atlantic Escorts, Inc. (8870);

2 Pg 2 of 89 and Final Orders Pursuant to 11 U.S.C. 105, 361, 362, 363, 364 and 507 and Rules 2002, 4001 and 9014 of the Federal Rules of Bankruptcy Procedure (I) Authorizing the Debtors to Incur Postpetition Secured Indebtedness with Priority Over Existing Secured Indebtedness and with Administrative Superpriority, (II) Granting Liens, (III) Authorizing the Debtors to Use Cash Collateral and Providing for Adequate Protection, (IV) Modifying Automatic Stay and (V) Scheduling a Final Hearing [ECF No. 16] (the DIP Motion ), 2 to which that certain Ratification and Amendment Agreement (the Ratification Agreement ) was attached as Exhibit B. PLEASE TAKE FURTHER NOTICE that the United States Bankruptcy Court for the Southern District of New York (the Court ) approved the DIP Motion on an interim basis by so ordering the record on November 6, 2013, and on November 8, 2013, entered the Order Pursuant to 11 U.S.C. 105, 361, 362, 363, 364 and 507 and Rules 2002, 4001 and 9014 of the Federal Rules of Bankruptcy Procedure (I) Authorizing Debtors to Obtain Interim Post-Petition Secured Financing with Priority over Certain Existing Secured Indebtedness and with Administrative Superpriority, (II) Granting Liens, (III) Authorizing the Debtors to Use Cash Atlantic Express Coachways, Inc. (2867); Atlantic Express New England, Inc. (4060); Atlantic Express of California, Inc. (5595); Atlantic Express of Illinois, Inc. (5759); Atlantic Express of LA, Inc. (1639); Atlantic Express of Missouri, Inc. (3116); Atlantic Express of New Jersey, Inc. (8504); Atlantic Express of Pennsylvania, Inc. (0330); Atlantic Express Transportation Corp. (4567); Atlantic Queens Bus Corp. (0276); Atlantic Paratrans of NYC, Inc. (1114); Atlantic Paratrans, Inc. (3789); Atlantic Transit, Corp. (7142); Atlantic-Hudson, Inc. (5121); Block 7932, Inc. (3439); Brookfield Transit, Inc. (8247); Courtesy Bus Co., Inc. (5239); Fiore Bus Service, Inc. (1233); Groom Transportation, Inc. (7208); G.V.D. Leasing, Inc. (0595); James McCarty Limo Services, Inc. (8592); Jersey Business Land Co. Inc. (3850); K. Corr, Inc. (4233); Merit Transportation Corp. (8248); Metro Affiliates, Inc. (0142); Metropolitan Escort Service, Inc. (9197); Midway Leasing, Inc. (7793); R. Fiore Bus Service, Inc. (3609); Raybern Bus Service, Inc. (9412); Raybern Capital Corp. (6990); Raybern Equity Corp. (3830); Robert L. McCarthy & Son, Inc. (4617); Staten Island Bus, Inc. (6818); Temporary Transit Service, Inc. (0973); Atlantic Express of Upstate New York Inc. (1570); Transcomm, Inc. (4493); and Winsale, Inc. (2710). The Debtors service address at Metro Affiliates, Inc. s corporate headquarters is 7 North Street, Staten Island, NY Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the DIP Motion. 2

3 Pg 3 of 89 Collateral and Providing for Adequate Protection; (V) Modifying the Automatic Stay and (V) Scheduling a Final Hearing [ECF No. 56] (the Interim DIP Order ). PLEASE TAKE FURTHER NOTICE that a copy of the proposed form of Permanent Financing Order is attached hereto as Exhibit 1 (the Proposed Final DIP Order ), and a copy of the Proposed Final DIP Order redlined against the Interim DIP Order is attached hereto as Exhibit 2. 3 New York, NY Dated: November 18, 2013 /s/ Lisa G. Beckerman AKIN GUMP STRAUSS HAUER & FELD LLP One Bryant Park New York, New York Tel: (212) Fax: (212) Lisa G. Beckerman Rachel Ehrlich Albanese AKIN GUMP STRAUSS HAUER & FELD LLP 1333 New Hampshire Avenue, N.W. Washington, DC Tel: (202) Fax: (202) Scott L. Alberino Proposed Counsel to the Debtors and Debtors in Possession 3 Pursuant to the Court s request, the proposed form of interim order annexed to the DIP Motion as Exhibit A was modified before entry by the Court. 3

4 Pg 4 of 89 EXHIBIT 1 Proposed Final DIP Order

5 Pg 5 of 89 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK Chapter 11 In re: METRO AFFILIATES, INC., et al., Case No (SHL) Jointly Administered Debtors. FINAL ORDER PURSUANT TO 11 U.S.C. 105, 361, 362, 363, 364 AND 507 AND RULES 2002, 4001 AND 9014 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE (I) AUTHORIZING THE DEBTORS TO OBTAIN POST-PETITION SECURED FINANCING WITH PRIORITY OVER CERTAIN EXISTING SECURED INDEBTEDNESS AND WITH ADMINISTRATIVE SUPERPRIORITY, (II) GRANTING LIENS, (III) AUTHORIZING THE DEBTORS TO USE CASH COLLATERAL AND PROVIDING FOR ADEQUATE PROTECTION AND (IV) MODIFYING THE AUTOMATIC STAY Upon the motion (the Motion ), 1 dated November 4, 2013, of Metro Affiliates, Inc., et al. ( Debtors ), as Debtors and Debtors-in-Possession in the above-captioned Chapter 11 cases (the Cases ), pursuant to Sections 105, 361, 362, 364(c)(1), 364(c)(2) and 364(c)(3) of Title 11 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal taxpayer identification number, are: 180 Jamaica Corp. (7630); Amboy Bus Co., Inc. (2369); Atlantic Escorts, Inc. (8870); Atlantic Express Coachways, Inc. (2867); Atlantic Express New England, Inc. (4060); Atlantic Express of California, Inc. (5595); Atlantic Express of Illinois, Inc. (5759); Atlantic Express of LA, Inc. (1639); Atlantic Express of Missouri, Inc. (3116); Atlantic Express of New Jersey, Inc. (8504); Atlantic Express of Pennsylvania, Inc. (0330); Atlantic Express Transportation Corp. (4567); Atlantic Queens Bus Corp. (0276); Atlantic Paratrans of NYC, Inc. (1114); Atlantic Paratrans, Inc. (3789); Atlantic Transit, Corp. (7142); Atlantic-Hudson, Inc. (5121); Block 7932, Inc. (3439); Brookfield Transit, Inc. (8247); Courtesy Bus Co., Inc. (5239); Fiore Bus Service, Inc. (1233); Groom Transportation, Inc. (7208); G.V.D. Leasing, Inc. (0595); James McCarty Limo Services, Inc. (8592); Jersey Business Land Co. Inc. (3850); K. Corr, Inc. (4233); Merit Transportation Corp. (8248); Metro Affiliates, Inc. (0142); Metropolitan Escort Service, Inc. (9197); Midway Leasing, Inc. (7793); R. Fiore Bus Service, Inc. (3609); Raybern Bus Service, Inc. (9412); Raybern Capital Corp. (6990); Raybern Equity Corp. (3830); Robert L. McCarthy & Son, Inc. (4617); Staten Island Bus, Inc. (6818); Temporary Transit Service, Inc. (0973); Atlantic Express of Upstate New York Inc. (1570); Transcomm, Inc. (4493); and Winsale, Inc. (2710). The Debtors service address at Metro Affiliates, Inc. s corporate headquarters is 7 North Street, Staten Island, NY

6 Pg 6 of 89 of the United States Code, 11 U.S.C. 101, et seq. (the Bankruptcy Code ) and Rules 2002, 4001(c), and 9014 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ) and S.D.N.Y. LBR , seeking, among other things: (1) authorization for the Debtors to obtain post-petition loans, advances and other financial accommodations from Wells Fargo Bank, National Association, in its capacity as agent (in such capacity, the Agent ) for itself and the other financial institutions from time to time party to the Existing Credit Agreement (as defined below) as lenders (collectively with the Agent, the Lenders ) in accordance with all of the terms and conditions set forth in the Existing Credit Agreement, as amended and ratified by the Ratification Agreement (as defined below), and in accordance with this Order, secured by security interests in and liens upon all of the Collateral (as defined below) pursuant to Sections 364(c)(2) and 364(c)(3) of the Bankruptcy Code; (2) authorization for the Debtors to continue to comply with and perform under the Ratification and Amendment Agreement, dated as of November 6, 2013, by and among the Agent, Lenders, Atlantic Express Transportation Corp., a New York corporation ( Parent ), Amboy Bus Co., Inc., a New York corporation ( Amboy ), Atlantic Escorts Inc., a New York corporation ( Atlantic Escorts ), Atlantic Express Coachways, Inc., a New Jersey corporation ( Coachways ), Atlantic Express New England, Inc., a Massachusetts corporation ( AE-NE ), Atlantic Express of California, Inc., a California corporation ( AE-CA ), Atlantic Express of Illinois, Inc., an Illinois corporation ( AE-I ), Atlantic Express of L.A., Inc., a California corporation ( AELA ), Atlantic Express of Missouri Inc., a Missouri corporation ( AE Missouri ), Atlantic Express of New Jersey, Inc., a New Jersey corporation ( AENJ ), Atlantic Express of Pennsylvania, Inc., a Delaware corporation ( AEP ), Atlantic Express of Upstate New York, Inc., formerly known as TNT Bus Service, Inc., a New York corporation ( AE Upstate ), Atlantic-Hudson, Inc., a New York corporation ( AH ), Atlantic Paratrans, Inc., a New York corporation ( AP ), Atlantic Paratrans of NYC, Inc., a New York corporation ( APNY ), Atlantic Queens Bus Corp., a New York corporation ( AQ ), Atlantic Transit, Corp., -2-

7 Pg 7 of 89 a New York corporation ( ATC ), Block 7932, Inc., a New York corporation ( Block ), Brookfield Transit Inc., a New York corporation ( Brookfield ), Courtesy Bus Co., Inc., a New York corporation ( Courtesy ), Fiore Bus Service, Inc., a Massachusetts corporation ( Fiore ), Groom Transportation, Inc., a Massachusetts corporation ( Groom ), G.V.D. Leasing Co., Inc., a New York corporation ( GVD ), James McCarty Limo Service, Inc., a Massachusetts corporation ( Limo ), Jersey Business Land Co., Inc., a New Jersey corporation ( JBL ), K. Corr, Inc., a New York corporation ( Corr ), Merit Transportation Corp., a New York corporation ( Merit ), Metro Affiliates, Inc., a New York corporation ( Metro ), Metropolitan Escort Service, Inc., a New York corporation ( Metropolitan Escort ), Midway Leasing Inc., a New York corporation ( Midway ), 180 Jamaica Corp., a New York corporation ( Jamaica ), R. Fiore Bus Service, Inc., a Massachusetts corporation ( FBS ), Raybern Bus Service, Inc., a New York corporation ( RBS ), Raybern Capital Corp., a New York corporation ( RBC ), Raybern Equity Corp., a PNew York corporation ( REC ), Robert L. McCarthy & Son, Inc., a Massachusetts corporation ( McCarthy ), Staten Island Bus, Inc., a New York corporation ( SI- Bus ), Temporary Transit Service, Inc., a New York corporation ( TTS ), Transcomm, Inc., a Massachusetts corporation ( Transcomm ), Winsale, Inc., a New Jersey corporation ( Winsale and together with Parent,Amboy, Atlantic Escorts, Coachways, AE-NE, AE-CA, AE-I, AELA, AE Missouri, AENJ, AEP, AE Upstate, AH, AP, APNY, AQ, ATC, Block, Brookfield, Courtesy, Fiore, Groom, GVD, Limo, JBL, Corr, Merit, Metro, Metropolitan Escort, Midway, Jamaica, FBS, RBS, RBC, REC, McCarthy, SI-Bus, and Transcomm, each individually a Borrower and collectively Borrowers ) (the Ratification Agreement, a copy of which is annexed to the Interim Financing Order (as defined below) as Exhibit A and is incorporated herein), which ratifies, extends, adopts and amends the Existing Credit Agreement and the other Financing Agreements (each as defined below); (3) modification of the automatic stay to the extent hereinafter set forth; -3-

8 Pg 8 of 89 (4) granting the Agent, the Lenders and the Bank Product Providers (as defined in the Existing Credit Agreement) superpriority administrative claim status pursuant to Section 364(c)(1) of the Bankruptcy Code in respect of all Post-Petition Obligations (as defined in the Ratification Agreement); (5) authorization for the Debtors to use cash collateral pursuant to Sections 361 and 363 of the Bankruptcy Code in accordance with the terms of this Order; and (6) granting The Bank of New York Mellon as indenture trustee and collateral agent ( BNYM ) adequate protection on account of its prepetition liens on the Noteholder Pre-Petition Collateral (as defined below). The initial hearing on the Motion having been held by this Court on November 6, 2013 (the Interim Hearing ), and the final hearing on the Motion having been held by this Court on December 2, 2013 (the Final Hearing ). It appearing that due and appropriate notice of the Motion, the relief requested therein and the Interim Hearing and the Final Hearing (the Notice ) having been served by the Debtors in accordance with Rule 4001(c) on (i) counsel to Agent, (ii) the Office of the United States Trustee for the Southern District of New York (the U.S. Trustee ), (iii) the holders of the thirty (30) largest unsecured claims against the Debtors estates (the 30 Largest Unsecured Creditors ), (iv) the Internal Revenue Service, (v) all appropriate state taxing authorities, (vii) all landlords, owners, and/or operators of premises at which any of the Debtor s rolling stock and/or equipment are located, (viii) the Department of Education of the City of New York, (ix) counsel to certain Noteholders (as defined herein); (x) counsel to BNYM; (xi) the Securities and Exchange Commission; (xii) the United States Attorney for the Southern District of New York; (xiii) Merchants Automotive Group, Inc.; (xiv) GE Capital Commercial Inc.; (xv) People s Capital and Leasing Corp.; (xvi) HSBC Bank USA; (xvii) Bank of America, N.A.; (xviii) Citizens Bank; (xix) City National Bank; (xx) Eastern Bank; (xxi) Country Bank; (xxii) Rollstone Bank; and (xxiii) the other lienholders listed on Exhibit D to the Motion (collectively, the Noticed Parties ). -4-

9 Pg 9 of 89 Upon the record made by the Debtors at the Interim Hearing and the Final Hearing, including the Motion, and the filings and pleadings in the Cases, and good and sufficient cause appearing therefor; THE COURT HEREBY MAKES THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW: A. Petition. On November 4, 2013 (the Petition Date ), the Debtors filed voluntary petitions (the Petitions ) under Chapter 11 of the Bankruptcy Code. The Debtors continue to operate their businesses and manage their properties as debtors-in-possession pursuant to Sections 1107(a) and 1108 of the Bankruptcy Code. B. Jurisdiction and Venue. The Court has jurisdiction of this proceeding and the parties and property affected hereby pursuant to 28 U.S.C. 157(b) and The Motion is a core proceeding as defined in 28 U.S.C. 157(b) (2) (A), (D) and (M). Venue of the Cases and the Motion in this Court is proper pursuant to 28 U.S.C and C. Notice. The Notice given by the Debtors of the Motion and the Final Hearing and the relief granted under this Order constitutes due and sufficient notice thereof and complies with Bankruptcy Rule 4001(c). D. Debtors Acknowledgments and Agreements. The Debtors admit, stipulate, acknowledge and agree that, subject to any rights of other parties to the extent set forth in section 4.1 below: (i) Existing Financing Agreements. Prior to the commencement of the Cases, the Agent, Lenders and Bank Product Providers made loans, advances and provided other financial accommodations to the Debtors pursuant to the terms and conditions set forth in: (1) the Fourth Amended and Restated Loan and Security Agreement, dated as of March 12, 2010, by and among Debtors, Borrowers, Guarantors, the Agent and Lenders, as amended by Amendment No. 1 to Fourth Amended and Restated Loan and Security Agreement, dated as of January 25, 2011, Amendment No. 2 to Fourth Amended and Restated Loan and Security Agreement, dated as of April 1, 2011, Amendment No. 3 to Fourth Amended and Restated Loan and Security -5-

10 Pg 10 of 89 Agreement, dated as of May 16, 2011, Amendment No. 4 to Fourth Amended and Restated Loan and Security Agreement, dated as of May 25, 2011, Amendment No. 5 to Fourth Amended and Restated Loan and Security Agreement, dated as of November 14, 2011, Amendment No. 6 to Fourth Amended and Restated Loan and Security Agreement, dated as of February 9, 2012, Amendment No. 7 to Fourth Amended and Restated Loan and Security Agreement, dated as of March 28, 2012, Amendment No. 8 to Fourth Amended and Restated Loan and Security Agreement, dated as of April 16, 2013, Amendment No. 9 to Fourth Amended and Restated Loan and Security Agreement, dated as of May 9, 2013, and Amendment No. 10 to Fourth Amended and Restated Loan and Security Agreement, dated as of May 15, 2013, and otherwise as in effect immediately prior to the Petition Date (the Existing Credit Agreement, a copy of which is included with the Exhibit Supplement defined below) and (2) all other agreements, documents and instruments executed and/or delivered with, to, or in favor of the Agent, any Lender or any Bank Product Provider, including, without limitation, all security agreements, notes, guarantees, mortgages, Uniform Commercial Code financing statements and all other related agreements, documents and instruments executed and/or delivered in connection therewith or related thereto (all of the foregoing, together with the Existing Credit Agreement, as all of the same have heretofore been amended, supplemented, modified, extended, renewed, restated and/or replaced at any time prior to the Petition Date, collectively, the Existing Financing Agreements ). Copies of the operative Existing Financing Agreements are contained in the Exhibit Supplement to the Motion (the Exhibit Supplement ). (ii) Pre-Petition Obligations Amount. As of the close of business on November 4, 2013, the aggregate amount of all Loans, 2 Supplemental Loans, Letters of Credit, Bank Products and other Pre-Petition Obligations (as defined below) owing by Debtors to the 2 Capitalized terms used but not otherwise defined in this Order shall have the respective meanings ascribed thereto in the Existing Credit Agreement, as amended and ratified by the Ratification Agreement. -6-

11 Pg 11 of 89 Agent, Lenders and Bank Product Providers under and in connection with the Existing Financing Agreements was not less than $43,289,202.29, plus interest accrued and accruing thereon, together with all costs, fees, expenses (including attorneys fees and legal expenses) and other charges accrued, accruing or chargeable with respect thereto (collectively, and as such term is more fully defined in the Ratification Agreement, the Pre-Petition Obligations ). The Pre- Petition Obligations constitute allowed, legal, valid, binding, enforceable and non-avoidable obligations of the Debtors, and are not subject to any offset, defense, counterclaim, avoidance, recharacterization or subordination pursuant to the Bankruptcy Code or any other applicable law, and the Debtors do not possess and shall not assert any claim, counterclaim, setoff or defense of any kind, nature or description which would in any way affect the validity, enforceability and non-avoidability of any of the Pre-Petition Obligations. (iii) Pre-Petition Collateral. As of the Petition Date, the Pre-Petition Obligations were secured pursuant to the Existing Financing Agreements by valid, perfected, enforceable and non-avoidable first priority security interests and liens granted by the Debtors to the Agent, for the benefit of itself, the other Lenders and the Bank Product Providers, upon all of the Pre-Petition Collateral (as defined in the Ratification Agreement), subject only to the liens specifically permitted under Section 4.4(b) of the Existing Credit Agreement to the extent that such security interests, liens or encumbrances are (a) valid, perfected and non-avoidable security interests, liens or encumbrances existing as of the Petition Date, and (b) senior to and have not been or are subject to being subordinated to the Agent s, Lenders and Bank Product Providers liens on and security interests in the Pre-Petition Collateral or otherwise avoided, and, in each instance, only for so long as and to the extent that such encumbrances are and remain senior and outstanding (hereinafter referred to as the Permitted Encumbrances ). The Debtors do not possess and will not assert any claim, counterclaim, setoff or defense of any kind, nature or description which would in any way affect the validity, enforceability and non-avoidability of any of the Agent s, Lenders and Bank Product Providers liens, claims or security interests in the Pre-Petition Collateral. -7-

12 Pg 12 of 89 (iv) Proof of Claim. The acknowledgment by Debtors of the Pre- Petition Obligations and the liens, rights, priorities and protections granted to or in favor of the Agent, Lenders and Bank Product Providers as set forth herein and in the Existing Financing Agreements shall be deemed a timely filed proof of claim on behalf of the Agent, Lenders and Bank Product Providers in these Cases. (v) Noteholder Documents. Prior to the commencement of the Cases, Parent issued 10.5% Senior Secured Notes due 2017 (the Notes ) pursuant to an indenture dated as of October 19, 2009 (as amended, the Indenture ) with The Bank of New York Mellon, as indenture trustee (the Trustee ). Pursuant to a certain Security Agreement dated as of October 19, 2009 (as amended, the Security Agreement ), Parent and each of the Subsidiary Guarantors (as defined therein) as security for the Noteholder Debt (as defined therein) granted The Bank of New York Mellon as collateral agent (the Collateral Agent ) for the benefit of the Trustee and the holders of the Notes (the Noteholders ) liens on the Collateral (as defined therein), including substantially all of the Pre-Petition Collateral (the Noteholder Collateral ) (the Indenture, Notes, the Security Agreement, together with all other agreements, documents and instruments executed and/or delivered with, to, or in favor of BNYM, as Trustee and/or Collateral Agent including, without limitation, all guarantees, mortgages, Uniform Commercial Code financing statements and all other related agreements, documents and instruments executed and/or delivered in connection therewith or related thereto, as all of the same have heretofore been amended, supplemented, modified, extended, renewed, restated and/or replaced at any time prior to the Petition Date, collectively, the Noteholder Documents ). (vi) Noteholder Obligations. The aggregate amount of the Noteholder Obligations owing by Debtors to the Noteholders and the Indenture Trustee under and in connection with the Noteholder Documents was not less than $155,423,638, plus interest accrued and accruing thereon, together with all costs, fees, expenses (including attorneys' fees and legal expenses) and other charges accrued, accruing or chargeable with respect thereto. The -8-

13 Pg 13 of 89 Noteholder Obligations constitute allowed, legal, valid, binding, enforceable and non-avoidable obligations of the Debtors, and are not subject to any offset, defense, counterclaim, avoidance, recharacterization or subordination pursuant to the Bankruptcy Code or any other applicable law, and the Debtors do not possess and shall not assert any claim, counterclaim, setoff or defense of any kind, nature or description which would in any way affect the validity, enforceability and non-avoidability of any of the Noteholder Obligations. (vii) Noteholder Pre-Petition Collateral. As of the Petition Date, the Noteholder Obligations were secured pursuant to the Note Documents by valid, perfected, enforceable and non-avoidable first priority security interests and liens granted by the Debtors to Collateral Agent for the benefit of Trustee and the Noteholders upon all of the Noteholder Collateral (the "Noteholder Pre-Petition Collateral"), subject only to the liens specifically permitted under the Indenture to the extent that such security interests, liens or encumbrances are (a) valid, perfected and non-avoidable security interests, liens or encumbrances existing as of the Petition Date, and (b) senior to and have not been or are subject to being subordinated to BNYM's liens on and security interests in the Noteholder Pre-Petition Collateral or otherwise avoided, and, in each instance, only for so long as and to the extent that such encumbrances are and remain senior and outstanding (hereinafter referred to as the "Noteholder Permitted Encumbrances"). The Debtors do not possess and will not assert any claim, counterclaim, setoff or defense of any kind, nature or description which would in any way affect the validity, enforceability and non-avoidability of any of BNYM's liens, claims or security interests in the Noteholder Pre-Petition Collateral. (viii) Intercreditor Agreement. The Agent, the Collateral Agent and the Debtors are parties to an Amended and Restated Intercreditor Agreement, dated as of March 12, 2010, as amended and supplemented thereafter (the "Intercreditor Agreement"), which sets forth the respective rights, obligations and priorities of the liens and security interests of the Agent, Lenders, the Collateral Agent and the Noteholders with respect to the Pre-Petition Collateral and -9-

14 Pg 14 of 89 the Noteholder Pre-Petition Collateral. Nothing in this Order shall modify the terms of Intercreditor Agreement, and the rights, priorities and obligations set forth thereunder. E. Findings Regarding the Postpetition Financing. (i) Postpetition Financing. The Debtors have requested from the Agent, Lenders and Bank Product Providers, and the Agent, Lenders and Bank Product Providers are willing to extend, certain loans, advances and other financial accommodations on the terms and conditions set forth, in this Order and the Financing Agreements (as defined below). (ii) Need for Post-Petition Financing. The Debtors do not have sufficient available sources of working capital, including cash collateral, to operate their businesses in the ordinary course of their businesses without the financing requested under the Motion. The Debtors ability to maintain business relationships with their respective vendors and customers, to pay their employees, and to otherwise fund their operations is essential to the Debtors continued viability as the Debtors seek to maximize the value of the assets of the Estates (as defined below) for the benefit of all creditors of the Debtors. The ability of the Debtors to obtain sufficient working capital and liquidity through the proposed post-petition financing arrangements with the Agent, Lenders and Bank Product Providers as set forth in this Order and the Financing Agreements (as defined below) is vital to the preservation and maintenance of the going concern values of the Debtors. Accordingly, the Debtors have an immediate need to obtain the post-petition financing in order to, among other things, permit the orderly continuation of the operation of their businesses, minimize the disruption of their business operations, and preserve and maximize the value of the assets of the Debtors bankruptcy estates (as defined under Section 541 of the Bankruptcy Code, the Estates ) in order to maximize the recovery to all creditors of the Estates. (iii) No Credit Available on More Favorable Terms. The Debtors have been unable to procure financing in the form of unsecured credit allowable under Section 503(b) (1) of the Bankruptcy Code, as an administrative expense under Section 364(a) or (b) of the Bankruptcy Code, or in exchange for the grant of an administrative expense priority pursuant to -10-

15 Pg 15 of 89 Section 364(c)(1) of the Bankruptcy Code, without the grant of liens on assets. The Debtors have been unable to procure the necessary financing on terms more favorable than the financing offered by the Agent, Lenders and Bank Product Providers pursuant to the Financing Agreements. (iv) Budget. The Debtors have prepared and delivered to the Agent, Lenders, Bank Product Providers and BNYM a Budget (as defined in the Ratification Agreement). Such Budget has been thoroughly reviewed by the Debtors and their respective management and sets forth, among other things, the projected receipts and disbursements for the periods covered thereby. The Debtors represent that the Budget is achievable in accordance with the terms of the Financing Agreements and this Order and will allow the Debtors to operate during these Cases without the accrual of unpaid administrative expenses. The Agent, Lenders and Bank Product Providers are relying upon the Debtors compliance with the Budget in accordance with Section 5.3 of the Ratification Agreement, the Financing Agreements and this Order in determining to enter into the post-petition financing arrangements provided for herein. (v) Interim Financing Order. On November 8, 2013, the Court entered the Order Pursuant to 11 U.S.C. 105, 361, 362, 363, 364 and 507 and Rules 2002, 4001 and 9014 of the Federal Rules of Bankruptcy Procedure (I) Authorizing The Debtors to Obtain Interim Post-Petition Secured Financing With Priority Over Certain Existing Secured Indebtedness and With Administrative Superpriority, (II) Granting Liens, (III) Authorizing The Debtors To Use Cash Collateral And Providing For Adequate Protection, (IV) Modifying The Automatic Stay And (V) Scheduling A Final Hearing (the Interim Financing Order ) pursuant to which, among other things, the Debtors were authorized to obtain post-petition Loans and Bank Products from the Agent, Lenders and Bank Product Providers, secured by the Collateral and afforded superpriority status. (vi) Business Judgment and Good Faith Pursuant to Section 364(e). The terms of the Financing Agreements and this Order are fair, just and reasonable under the circumstances, are ordinary and appropriate for secured financing to debtors-in-possession, -11-

16 Pg 16 of 89 reflect the Debtors exercise of their prudent business judgment consistent with their fiduciary duties, and is supported by reasonably equivalent value and fair consideration. The terms and conditions of the Financing Agreements and this Order have been negotiated in good faith and at arms length by and among the Debtors, on one hand, and the Agent, Lenders and Bank Product Providers, on the other hand, with all parties being represented by counsel. Any credit extended under the terms of this Order shall be deemed to have been extended in good faith by the Agent, Lenders and Bank Product Providers as that term is used in Section 364(e) of the Bankruptcy Code. (vii) Good Cause. The relief requested in the Motion is necessary, essential and appropriate, and is in the best interest of and will benefit the Debtors, their creditors and their Estates, as its implementation will, among other things, provide the Debtors with the necessary liquidity to (a) minimize disruption to the Debtors business and on-going operations, (b) preserve and maximize the value of the Debtors Estates for the benefit of all the Debtors creditors, and (c) avoid immediate and irreparable harm to the Debtors, their creditors, their businesses, their employees, and their assets. (viii) Immediate Entry. Sufficient cause exists for immediate entry of this Order pursuant to Bankruptcy Rule 4001(c)(2). No party appearing in the Cases has filed or made an objection to the relief sought in the Motion or the entry of this Order, or any objections that were made (to the extent such objections have not been withdrawn) are hereby overruled. Based upon the foregoing, and after due consideration and good cause appearing therefor; IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that: Section 1. Authorization and Conditions to Financing. 1.1 Motion Granted. The Motion is granted in accordance with Bankruptcy Rule 4001(c)(2) to the extent provided in this Order. This Order shall hereinafter be referred to as the Final Order. -12-

17 Pg 17 of Authorization to Borrow and Use Loan Proceeds. The Debtors are hereby authorized and empowered to immediately borrow and obtain Loans and Bank Products and to incur indebtedness and obligations owing to the Agent, Lenders and Bank Product Providers pursuant to the terms and conditions of this Final Order, the Existing Credit Agreement, as ratified and amended by the Ratification Agreement (the Credit Agreement, as such term is more fully defined in the Ratification Agreement), and the Existing Financing Agreements as ratified and amended by the Ratification Agreement (the Financing Agreements, as such term is more fully defined in the Ratification Agreement) in such amounts as may be made available to the Debtors by the Agent and Lenders pursuant to the terms and conditions of the Credit Agreement. Subject to the terms and conditions contained in this Final Order and the Financing Agreements, Debtors shall use the proceeds of the Loans and any other credit accommodations provided to Debtors pursuant to this Final Order, the Credit Agreement or the Financing Agreements only for payment of expense items specified in the Budget, including the fees of the U.S. Trustee, the Clerk of this Court and for payment of adequate protection solely to the extent provided herein. 1.3 Financing Agreements Authorization. The Debtors are hereby authorized to continue to perform under and comply in all respects with all of the terms, conditions and covenants of the Credit Agreement, the Financing Agreements and all other agreements, documents and instruments executed or delivered in connection with or related to the Credit Agreement, the Financing Agreements or this Final Order, including, without limitation, the Ratification Agreement, pursuant to which, inter alia, each Debtor ratifies, reaffirms, extends, assumes, adopts, amends, and restates the Existing Credit Agreement and the other Financing Agreements to which it is a party Approval. The Financing Agreements (including, without limitation, the Credit Agreement) are approved to the extent necessary to implement the terms and provisions of this Final Order. All of such terms, conditions and covenants shall be -13-

18 Pg 18 of 89 sufficient and conclusive evidence of the borrowing and bank product arrangements by and among the Debtors, the Agent, Lenders and Bank Product Providers, and of the Debtors assumption and adoption of all of the terms, conditions, and covenants of the Credit Agreement and the Financing Agreements for all purposes, including, without limitation, to the extent applicable, the payment of all Obligations (as defined in the Ratification Agreement) arising thereunder, including, without limitation, all principal, interest, commissions, letter of credit fees, servicing fees, unused line fees, debtor-in-possession financing facility fee and other fees and expenses, including, without limitation, all of the Agent s and Lenders reasonable consultant fees, professional fees, attorney fees and legal expenses, as more fully set forth in the Financing Agreements Amendment. Subject to the terms and conditions of the Credit Agreement and the Financing Agreements, the Debtors, the Agent and Lenders may amend, modify, supplement or waive any provision of the Financing Agreements (an Amendment ) without further approval or order of the Court so long as (i) such Amendment is not material (for purposes hereof, a material Amendment shall mean, any Amendment that operates to increase the interest rate other than as currently provided in the Financing Agreements, increase the Maximum Credit (as defined in the Credit Agreement), add specific new events of default or enlarge the nature and extent of default remedies available to the Agent and Lenders following an event of default, or otherwise modify any terms and conditions in any of the Financing Agreements in a manner materially less favorable to the Debtors) and is undertaken in good faith by the Agent, Lenders and Debtors; (ii) the Debtors provide prior written notice of the Amendment (the Amendment Notice ) to (x) the U.S. Trustee, (y) counsel to any official committee appointed in the Cases under Section 1102 of the Bankruptcy Code (collectively, the Committee(s) ), or in the event no such Committee is appointed at the time of such Amendment, the 30 Largest Unsecured Creditors and (z) counsel to BNYM; (iii) the Debtors file the Amendment Notice with the Court; and (iv) no objection to the Amendment is filed with the Court within two (2) business days from the later of the date the Amendment Notice is served or -14-

19 Pg 19 of 89 the date the Amendment Notice is filed with the Court in accordance with this Section. Any material Amendment to the Financing Agreements must be approved by the Court to be effective. 1.4 Payment of Prepetition Debt. The Debtors are authorized to pay the Agent, Lenders and Bank Product Providers in respect of all Pre-Petition Obligations in accordance with the Financing Agreements and Sections 1.5 and 1.6 of this Final Order. 1.5 Payments and Application of Payments. The Debtors are authorized and directed to make all payments and transfers of Estate property to the Agent, Lenders and Bank Product Providers as provided, permitted and/or required under the Credit Agreement and the Financing Agreements. All proceeds of the Collateral(as defined below) received by the Agent, Lenders or Bank Product Providers, and any other amounts or payments received by the Agent, Lenders or Bank Product Providers in respect of the Obligations, shall be applied or deemed to be applied by the Agent, Lenders and Bank Product Providers in accordance with the Credit Agreement, the Financing Agreements and this Final Order first to the Pre-Petition Obligations, until such Pre-Petition Obligations are indefeasibly paid in full and completely satisfied, and then to the Post-Petition Obligations (as defined in the Ratification Agreement). Without limiting the generality of the foregoing, the Debtors are authorized, without further order of this Court, to pay or reimburse the Agent, Lenders and Bank Product Providers for all present and future costs and expenses, including, without limitation, all reasonable professional fees, consultant fees and legal fees and expenses paid or incurred by the Agent, Lenders and Bank Product Providers in connection with the financing transactions as provided in this Final Order and the Financing Agreements (the Lender Group Professional Fees ), all of which shall be and are included as part of the principal amount of the Obligations and secured by the Collateral; provided, that, the Debtors shall provide copies of any invoices it receives in respect of Lender Group Professional Fees to the Office of the United States Trustee and counsel for the official committee of unsecured creditors (if appointed) in these Cases, and the such parties shall have ten (10) days to review such invoices for reasonableness. -15-

20 Pg 20 of Continuation of Prepetition Procedures. All pre-petition practices and procedures for the payment and collection of proceeds of the Collateral, the turnover of cash, the delivery of property to the Agent, Lenders and Bank Product Providers and the funding pursuant to the Financing Agreements, including any blocked, lockbox or depository account arrangements of the Debtors, are hereby approved and shall continue without interruption after the commencement of the Cases. Section 2. Postpetition Lien; Superpriority Administrative Claim Status. 2.1 Post-Petition Lien Post-Petition Lien Granting. To secure the prompt payment and performance of any and all Obligations of the Debtors to the Agent, Lenders and Bank Product Providers of whatever kind, nature or description, absolute or contingent, now existing or hereafter arising, the Agent, for the benefit of itself, the other Lenders and the Bank Product Providers, shall have and is hereby granted, effective as of the Petition Date, valid and perfected first priority security interests and liens, superior to all other liens, claims or security interests that any creditor of the Debtors Estates may have (but subject to certain claims entitled to priority, including the Permitted Liens and Claims as defined below as and to the extent expressly provided in Section below and subject to the Intercreditor Agreement), in and upon all of the Pre-Petition Collateral and the Post-Petition Collateral (as defined in the Ratification Agreement). The Pre-Petition Collateral and the Post-Petition Collateral are collectively referred to herein as the Collateral. In accordance with Sections 552(b) and 361 of the Bankruptcy Code, the value, if any, in any of the Collateral, in excess of the amount of Obligations secured by such Collateral after satisfaction of the Post-Petition Obligations of the Debtors to the Agent, Lenders and Bank Product Providers, shall constitute additional security for the repayment of the Pre-Petition Obligations and adequate protection for the use by the Debtors, and the diminution in the value, of the Collateral as of the Petition Date Lien Priority. The pre-petition and post-petition liens and security interests of the Agent, Lenders and Bank Product Providers granted under the Financing -16-

21 Pg 21 of 89 Agreements and this Final Order in the Collateral shall be and shall continue to be first and senior in priority to all other interests and liens of every kind, nature and description, whether created consensually, by an order of the Court or otherwise, including, without limitation, liens or interests granted in favor of third parties in conjunction with Section 363, 364 or any other Section of the Bankruptcy Code or other applicable law; provided, however, that the Agent s, Lenders and Bank Product Providers liens on and security interests in the Collateral shall be subject only to the Permitted Encumbrances. For the purposes hereof, the term Permitted Liens and Claims shall mean, as to each Secured Creditor (as defined below) (i) the Intercreditor Agreement (including any lien subordination contained therein), (ii) the Permitted Encumbrances applicable to such Secured Creditor and (iii) the Carve Out Expenses (as defined below) solely to the extent provided for in Sections 2.3, 2.4 and 2.5 of this Final Order. For the avoidance of doubt, the liens granted pursuant to this section will not prime any valid, enforceable, nonavoidable and perfected liens held by lenders under the Other Financings (as defined in the Motion) with respect to the motor vehicles that are pledged as collateral for the Other Financings solely to the extent such liens securing the Other Financings are senior in priority to the liens of Agent in and to such motor vehicles. For purposes hereof, the term Secured Creditors shall mean the Agent, the Lenders, the Bank Product Providers, BNYM and the Noteholders, each individually referred to herein as a Secured Creditor Post-Petition Lien Perfection. This Final Order shall be sufficient and conclusive evidence of the priority, perfection and validity of the post-petition liens and security interests granted herein, effective as of the Petition Date, without any further act and without regard to any other federal, state or local requirements or law requiring notice, filing, registration, recording or possession of the Collateral, or other act to validate or perfect such security interest or lien, including without limitation, with respect to any blocked, lockbox or depository account consisting of Collateral (a Perfection Act ). Notwithstanding the foregoing, if the Agent shall, in its sole discretion, elect for any reason to file, record or otherwise effectuate any Perfection Act, the Agent is authorized to perform such act, and the Debtors are authorized -17-

22 Pg 22 of 89 to perform such act to the extent necessary or required by the Agent, which act or acts shall be deemed to have been accomplished as of the date and time of entry of this Final Order notwithstanding the date and time actually accomplished, and in such event, the subject filing or recording office is authorized to accept, file or record any document in regard to such act in accordance with applicable law. The Agent and Lenders may choose to file, record or present a certified copy of this Final Order in the same manner as a Perfection Act, which shall be tantamount to a Perfection Act, and, in such event, the subject filing or recording office is authorized to accept, file or record such certified copy of this Final Order in accordance with applicable law. Should the Agent so choose and attempt to file, record or perform a Perfection Act, no defect or failure in connection with such attempt shall in any way limit, waive or alter the validity, enforceability, attachment, or perfection of the post-petition liens and security interests granted herein by virtue of the entry of this Final Order Nullifying Pre-Petition Restrictions to Post-Petition Financing. Notwithstanding anything to the contrary contained in any pre-petition agreement, contract, lease, document, note or instrument to which the Debtors are a party or under which the Debtors are obligated, except as otherwise permitted under the Financing Agreements, any provision that restricts, limits or impairs in any way the Debtors from granting the Agent, Lenders and Bank Product Providers security interests in or liens upon any of the Debtor s assets or properties (including, among other things, any anti-lien granting or anti-assignment clauses in any leases or other contractual arrangements to which the Debtors are a party) under this Final Order, or otherwise entering into and complying with all of the terms, conditions and provisions hereof or the Financing Agreements shall not (i) be effective and/or enforceable against the Debtors, the Agent, Lenders and Bank Product Providers, or (ii) adversely affect the validity, priority or enforceability of the liens, security interests, claims, rights, priorities and/or protections granted to the Agent, Lenders and Bank Product Providers pursuant to this Final Order or the Financing Agreements to the maximum extent permitted under the Bankruptcy Code and other applicable law. -18-

23 Pg 23 of Superpriority Administrative Expense. For all Post-Petition Obligations now existing or hereafter arising pursuant to this Final Order, the Financing Agreements or otherwise, the Agent, for the benefit of itself, the other Lenders and the Bank Product Providers, is granted an allowed superpriority administrative claim pursuant to Section 364(c)(1) of the Bankruptcy Code, having priority in right of payment over any and all other obligations, liabilities and indebtedness of the Debtors, whether now in existence or hereafter incurred by the Debtors, and over any and all administrative expenses or priority claims of the kind specified in, or ordered pursuant to, inter alia Sections 105, 326, 328, 330, 331, 503(b), 506(c), 507(a), 507(b), 364(c)(1), 546(c), 726 or 1114 of the Bankruptcy Code (the Superpriority Claim ), provided, however, the Superpriority Claim shall be subject only to the Permitted Liens and Claims as and to the extent expressly set forth in this Final Order. 2.3 Carve Out Expenses Carve Out Expenses. Subject to the terms and conditions contained in this Final Order, the Agent s, Lenders and Bank Product Providers liens, claims and security interests in the Collateral and their Superpriority Claim shall be subject only to the right of payment from the Allowed Professional Fee Escrow Account (as defined below) of the following expenses (the Carve Out Expenses ): a. statutory fees payable to the U.S. Trustee pursuant to 28 U.S.C. 1930(a)(6); b. fees payable to the Clerk of this Court; c. the allowed reasonable fees and expenses of any Chapter 7 trustee appointed for any Debtor s Chapter 7 case, in the cumulative aggregate sum for all of the Debtors Chapter 7 cases not to exceed $50,000; d. the unpaid and outstanding reasonable fees and expenses actually incurred on or after the Petition Date, and approved by a final order of the Court pursuant to Sections 326, 327, 328, 330, or 331 of the Bankruptcy Code (collectively, the Allowed Professional Fees ), by attorneys, accountants, investment bankers and other -19-

24 Pg 24 of 89 professionals retained by the Debtors and any Committee(s) under Section 327 or 1103(a) of the Bankruptcy Code (collectively, the Professionals ), in a cumulative, aggregate sum not to exceed $1,500,000 (the Professional Fee Carve Out ); and e. the unpaid and outstanding reasonable fees and expenses actually incurred by any consumer privacy ombudsman appointed pursuant to section 332(a) of the Bankruptcy Code in a cumulative, aggregate sum not to exceed $10, Excluded Professional Fees. Notwithstanding anything to the contrary in this Final Order, neither the Professional Fee Carve Out nor the proceeds of any Loans, Letters of Credit, Bank Products or Collateral shall be used to pay any Allowed Professional Fees or any other fees or expenses incurred by any Professional in connection with any of the following: (a) an assertion or joinder in (but excluding any investigation into) any claim, counter-claim, action, proceeding, application, motion, objection, defense or other contested matter seeking any order, judgment, determination or similar relief: (i) challenging the legality, validity, priority, perfection, or enforceability of (A) the Obligations or the Agent s, Lenders and Bank Product Providers liens on and security interests in the Collateral or (B) the Noteholder Obligations or BNYM s liens on and security interests in the Collateral, (ii) invalidating, setting aside, avoiding or subordinating, in whole or in part, (A) the Obligations or the Agent s, Lenders and Bank Product Providers liens on and security interests in the Collateral or (B) the Noteholder Obligations or BNYM s liens on and security interests in the Collateral, or (iii) preventing any Secured Creditor s assertion or enforcement of any lien, claim, right or security interest or realization upon any Collateral in accordance with the terms and conditions of this Final Order (and as to the Secured Creditors, subject to the Intercreditor Agreement); provided, however, not more than $50,000 in the aggregate of the Professional Fee Carve Out or the proceeds of any Loans, Letters of Credit, Bank Products or Collateral may be used to pay the Allowed Professional Fees of Professionals retained by the Committee incurred in connection with investigating the matters set forth in this Section 2.3.2(a)(i), 2.3.2(a)(ii) and 2.3.2(a)(iii); (b) a request to use the Cash Collateral (as such term is defined in Section 363 of the -20-