Case No. Bky 05-30073.United States Bankruptcy Court, D. Minnesota.
January 11, 2005
INTERIM ORDER AUTHORIZING USE OF CASH COLLATERAL AND GRANTING ADEQUATE PROTECTION
GREGORY KISHEL, Bankruptcy Judge
The motion of the Debtor for an order authorizing interim use of cash collateral came before the undersigned on January 11, 2005. Appearances are noted on the record.
Based on the arguments of counsel, all the files, records and proceedings herein, the Court being advised in the premises, and the Court’s findings of fact and conclusions of law, if any, having been stated orally and recorded in open court following the close of evidence,
THE COURT FINDS THAT:
A. API has complied with the notice requirements of Fed.R.Bankr.P. 4001(b).
B. API, the Senior Noteholders (which consist of Massachusetts Mutual Life Insurance Company, C.M. Life Insurance Company, Pacific Life Insurance Company, United of Omaha Life Insurance Company, Companion Life Insurance Company, Thrivent Financial for Lutherans, and Nationwide Life Insurance Company of America) and Banks (which consist of LaSalle Bank National Association and Wells Fargo Bank, National Association) have reached an agreement regarding the use of the Senior Noteholders’ and the Banks’ cash collateral and the granting of adequate protection.
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IT IS HEREBY ORDERED:
1. The Debtor’s motion for expedited hearing on its motion for interim use of cash collateral and providing adequate protection is granted.
2. The Debtor is authorized to use cash, including cash collateral, subject to the liens of the Senior Noteholders and the Banks in accordance with the projections attached to the Motion for Interim and Final Orders Authorizing Use of Cash Collateral and Providing Adequate Protection, up to the total amount of $3,243,763, through and including the later of February 15, 2005 or the date on which the Court enters an order regarding further use of cash collateral.
3. In addition to the existing rights and interests of the Senior Noteholders and the Banks in cash collateral and for the purpose of attempting to provide adequate protection for the interests of the Senior Noteholders and the Banks in their prepetition collateral, including any diminution in value which results from the Debtor’s use of cash collateral hereunder, the Senior Noteholders and the Banks are hereby granted, as security to the extent of the Debtors’ actual use of cash collateral and any diminution of the value of the Senior Noteholders’ and the Banks’ interest in their prepetition collateral, a valid perfected and enforceable security interest (the “Replacement Liens”) in and upon all of the assets of the Debtor, both tangible and intangible, real and personal, including without limitation, accounts, inventory, machinery and equipment, real property, chattel paper, intellectual property, licenses, deposit accounts, money, negotiable collateral, securities, and general intangibles (but not including claims or causes of action arising under Sections 544, 545, 547, 548, 549 and 553 of the Bankruptcy Code), and all improvements, additions and extensions thereto, all replacement thereof, all books and records with respect thereto and all products and proceeds of the foregoing, specifically including any proceeds of the foregoing deposited into accounts opened by the Debtor after the Petition Date and the accounts
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themselves. The Replacement Liens shall be subject to valid, properly perfected and enforceable liens existing on the Petition Date.
4. API shall also provide non-monetary adequate protection by: (a) maintaining insurance coverage for the Senior Noteholders’ and the Banks’ Collateral (as defined in the Motion); (b) providing to the Senior Noteholders and the Banks such financial or operating reports as were provided to the Senior Noteho lders and the Banks pre-petition and copies of reports filed with the Office of the U.S. Trustee, and additional financial or operating reports as reasonably required by the Senior Noteholders and the Banks; and (c) consulting with the Senior Noteholders and the Banks regarding the status of the case.
5. Nothing herein shall be construed as the Senior Noteholders’ or the Banks’ consent to § 506(c) claims against the Senior Noteholders, the Banks or their Collateral.
6. This Order is effective as of the date of its entry. No modification of this Order shall deprive the Senior Noteholders or the Banks of adequate protection of their interest in API’s property to the extent that such protection is required by the Bankruptcy Code and other applicable law.
7. API’s authorization to use cash collateral will terminate immediately upon the entry of an order concluding the final hearing (the “Final Hearing”) on this Motion, unless the authority granted hereunder is extended by further Order of the Court.
8. Any claims that the Senior Noteholders or the Banks may have under § 507(b) are preserved.
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9. This Order shall not constitute a waiver by API, the Senior Noteholders, the Banks or any other party of any of their rights, claims, defenses and interests except as expressly provided herein.
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