No. 00-34533United States Bankruptcy Court, E.D. Virginia, Richmond Division
February 4, 2003
Bruce H. Matson, Esquire, Troy Savenko, Esquire, Katherine Macaulay Mueller, Esquire, LeCLAIIR RYAN, A Professional Corporation, Richmond, Virginia, Counsel for the Debtors; Katherine Macaulay Mueller, Esquire, LeClair Ryan, A Professional Corporation, Richmond, Virginia.
Peter M. Pearl, Esquire, Smith, Gambrell Russell, LLP, Atlanta, GA, Counsel for The CIT Group/Business Credit, Inc.
ORDER AUTHORIZING THE DEBTORS (A) TO ENTER INTO FIRST AMENDMENT TO SENIOR SECURED SUPERPRIORITY DEBTOR-IN-POSSESSION LOAN AND SECURITY AGREEMENT, (B) TO PAY AMENDMENT FEE RELATED THERETO AND (C) TO ENTER INTO A FURTHER AMENDMENT SUBJECT TO A TWENTY 20 DAY NOTICE PERIOD
DOUGLAS O. TICE, United States Bankruptcy Judge
This matter comes before the Court upon the Debtor’s Motion to Authorize (A) First Amendment to Senior Secured Superpriority Debtor-In-Possession Loan and Security Agreement and (B) Payment of Amendment Fee (the “Motion”). The Court having reviewed the Motion and having heard the statements of counsel in support of the relief requested therein at a hearing before the Court (the “Hearing”), the Court finding that (a) the Court has jurisdiction over this matter pursuant to 28 U.S.C. § 157 and 1334, (b) this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2), (c) notice of the Motion (and proposed Order) was sufficient, (d) entry into the First Amendment to Senior Secured Superpriority Debtor-In-Possession Loan and Security Agreement and payment of the Amendment Fee and entry into a further amendment as described herein is supported by the sound business judgment of the Debtors; and the Court being fully advised in the premises and having determined that the legal and factual bases set forth in the Motion and at the Hearing establish just cause for the relief granted herein; it is hereby
ORDERED that:
1. The Motion is hereby GRANTED.
2. Capitalized terms not otherwise defined herein have the meanings given them in the Motion.
3. The Debtors are authorized to enter into the First Amendment to Senior Secured Superpriority Debtor-In-Possession Loan and Security Agreement (the “First Amendment”), and to take all action necessary or appropriate in connection with entry thereof.
4. The Debtors are authorized to pay the Amendment Fee of $75,000 to CIT upon entry of this Order and subsequent execution of the First Amendment.
5. The Debtors are authorized to enter into a second amendment to the Senior Secured Superpriority Debtor-In-Possession Loan and Security Agreement (the “Second Amendment”) to include an optional renewal term whereby the Debtors are permitted to elect to extend the term by three (3) months such that the term of the Second Amendment would expire on January 31, 2004 rather than October 31, 2003 (the “Optional Renewal Term”). Additionally, the Debtors are authorized to pay an additional fee of $25,000 for the Optional Renewal Term (the “Additional Amendment Fee”).
6. Notwithstanding the foregoing, the relief provided in paragraph (5) of this Order (“Paragraph 5”) shall not be effective until the twentieth day after entry hereof, provided however, if any party objects to the relief provided in Paragraph 5, such relief shall not be effective unless the Court enters such additional order(s) authorizing the Debtors to enter into the Second Amendment containing the Optional Renewal Term. Any party that wants to object to the relief provided in Paragraph 5 of this Order must file a written objection and serve such objection on counsel for the Debtors and for the Committee and appear at a hearing on such objection on February 27, 2003 at 2:00 p.m. If no party objects timely, the provisions in Paragraph 5 will become effective, and the Debtors will be authorized to enter into the Second Amendment which will include the Optional Renewal Term and the Additional Amendment Fee.
7. Except for Paragraph 5, all provisions contained in this Order shall be valid and enforceable upon entry. In the event that, for whatever reason, this Court later does not authorize the relief provided in Paragraph 5, all other paragraphs and other provisions of this Order (and any and all actions taken in respect of such provisions) shall remain in full force and effect.
8. Upon entry, the Debtors shall serve a copy of this Order to those parties on the Limited Service List and to those parties on the Service List attached hereto.
Rule 9022-1 Certification
Pursuant to LBR 9022-1, 1 hereby certify that a true copy of the foregoing Order was endorsed by or served upon all necessary parties; or as provided in the Order will be served on all necessary parties.