Case No. BKY 05-46836.United States Bankruptcy Court, D. Minnesota.
September 28, 2005
ORDER GRANTING EXPEDITED HEARING AND AUTHORIZING INTERIM USE OF CASH COLLATERAL AND SECURED BORROWING
ROBERT KRESSEL, Bankruptcy Judge
This case came before the Court on Debtor’s motion (the “Motion”) for an order authorizing use of cash collateral and secured borrowing. Appearances were as noted on the record.
Based on the arguments of counsel, all the files, records and proceedings herein, including a certain Stipulation for Interim Use of Cash Collateral and Secured Borrowing dated as of September 26, 2005, by and between U.S. Bank National Association (the “Bank”) and the Debtor (the “Stipulation”), and the Court having determined that use of cash collateral pending a final hearing to consider the Motion is necessary to avoid immediate and irreparable harm to the Debtor,
IT IS HEREBY ORDERED:
1. Debtor’s Motion for an expedited hearing is granted.
2. The Stipulation is hereby approved and Debtor is authorized to use cash collateral (as defined in the Stipulation) through November 19, 2005; subject, however, to the terms and conditions set forth in the Stipulation.
3. Notwithstanding paragraph 10 of the Stipulation, the representations and warranties referred to therein shall not bind a trustee subsequently appointed herein.
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4. The Bank is hereby granted a replacement lien in all property of the same type or nature of the Bank’s pre-petition collateral, including all now owned or hereafter acquired inventory, accounts and other rights to payment, equipment, contracts, deposits, documents of title, instruments, trade names and trademarks and general intangibles, and all cash and non-cash proceeds thereof at any time becoming property of the estate of the Debtor, which lien shall have the same order of priority, dignity, effect and extent as the Bank’s pre-petition liens in such assets, except that such lien shall be junior to the lien granted in paragraph 6 below. The lien granted hereunder shall secure the Debtor’s indebtedness to the Bank to the extent of the aggregate amount of cash collateral any time used by the Debtor, plus all other amounts by which the original or replacement collateral declines in value from and after the petition date, plus all post-petition interest, late charges, attorneys’ fees, costs and other amounts required to be paid under the Debtor’s loan documents with the Bank to the extent such post-petition amounts are allowable under 11 U.S.C. § 506. The lien granted hereunder shall be effective immediately upon entry of this Order without further action on the part of any party and shall be deemed fully perfected as of such date, it being understood that the Bank shall not be required to file financing statements or other documents in any jurisdiction or take any other action in order to validate or perfect the security interest and liens granted hereunder.
5. The Debtor is authorized to borrow funds as a Debtor-in-Possession Loan, subject to the terms and conditions set forth in the Stipulation; provided, however, that the Debtor may not borrow funds for the purposes set out in Motion paragraph 19, note 1, prior to the final hearing on use of cash collateral.
6. To secure the Debtor-in-Possession Loan, the Bank is hereby granted a first priority secured interest on all property of the estate of the same type or nature of the Bank’s pre-petition collateral and replacement collateral described in paragraph 4 above, excluding Debtor’s
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causes of action and avoidance rights under 11 U.S.C. §§ 544, 545, 547, 548, 549, or 553. The lien granted hereunder shall be senior and prior to all other liens and security interests on the described collateral and shall be in addition to, and not in substitution for, the replacement lien granted under paragraph 3 above and the Bank’s pre-petition liens and security interests.
7. In addition, the Debtor-in-Possession Loan, together with interest thereon and all other fees and expenses payable by the Debtor under the terms of the Stipulation, shall be payable as an administrative expense allowable under 11 U.S.C. § 503(b)(1), with priority under § 364(c)(1) over all other administrative expenses of the kind specified in §§ 503(b) or 507(b). The lien granted hereunder shall be effective immediately upon entry of this Order without further action on the part of any party and shall be deemed fully perfected as of such date, it being understood that the Bank shall not be required to file financing statements or other documents in any jurisdiction or take any other action in order to validate or perfect the security interest and liens granted hereunder.
8. A final hearing to consider the Motion shall be held on October 26, 2005, at 3:00 p.m. (the “Final Hearing”). Any objections to the Motion shall be considered at the Final Hearing. A copy of this Order and a notice of the Final Hearing shall be served by the Debtor on all parties in interest within 24 hours of its entry.
9. In the event that any or all of the provisions of this Order are hereby modified, amended, vacated or stayed, such modification, amendment, vacation or stay shall not affect the validity or enforceability of any provisions of this Order prior to such time.
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10. This Order shall not constitute a waiver by the Bank or any other party of any of their rights, claims, defenses and interests except as expressly provided herein.
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