1006-00002 · Crestline Packaging Solutions LLC · DIP Financing

proposed-final-dip-order.docx DOCUMENT Finance & Banking

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UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

¹ The Debtors in these Chapter 11 cases, along with the last four digits of each Debtor's federal tax identification number, are: Crestline Packaging Solutions LLC (2094) and CPS Holdings Inc. (1657). The location of the Debtors' corporate headquarters is 4710 Industrial Corridor Drive, Akron, OH 44308.

FINAL ORDER (I) AUTHORIZING THE DEBTORS TO OBTAIN POSTPETITION FINANCING PURSUANT TO 11 U.S.C. §§ 105, 361, 362, 363, 364(c)(1), 364(c)(2), 364(c)(3), AND 364(d)(1), (II) GRANTING LIENS AND SUPERPRIORITY ADMINISTRATIVE EXPENSE STATUS, (III) AUTHORIZING THE USE OF CASH COLLATERAL, (IV) GRANTING ADEQUATE PROTECTION TO PREPETITION SECURED PARTIES, AND (V) GRANTING RELATED RELIEF

Upon the motion (the "DIP Motion") of the above-captioned debtors and debtors in possession (collectively, the "Debtors") for entry of a final order pursuant to Sections 105, 361, 362, 363, 364(c)(1), 364(c)(2), 364(c)(3), and 364(d)(1) of Title 11 of the United States Code, 11 U.S.C. §§ 101–1532 (the "Bankruptcy Code"), and Rules 2002, 4001, 6004, and 9014 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), and the Local Bankruptcy Rules for the Northern District of Ohio (the "Local Rules"), (i) authorizing the Debtors to obtain postpetition financing under a senior secured superpriority revolving credit facility in the aggregate principal amount of up to $30,000,000, (ii) granting liens and superpriority administrative expense status, (iii) authorizing the use of cash collateral, (iv) granting adequate protection to prepetition secured parties, and (v) granting related relief; and the Court having considered the DIP Motion, the declarations and evidence submitted in support thereof, the DIP Credit Agreement (as defined below), the arguments of counsel, and any objections and responses thereto; and the Court having made the findings of fact and conclusions of law set forth herein; and after due deliberation and for good cause shown;

RECITALS

The Court finds and determines the following:

A. Petition and Procedural Background.

On June 20, 2022 (the "Petition Date"), Crestline Packaging Solutions LLC ("CPS" or the "Borrower"), an Ohio limited liability company, employer identification number 31-1782094, with its principal place of business at 4710 Industrial Corridor Drive, Akron, OH 44308, and CPS Holdings Inc. ("CPS Holdings"), a Delaware corporation, employer identification number 82-3491657, with its registered agent located at 1209 Orange Street, Wilmington, DE 19801 (c/o National Corporate Services, Inc.) (CPS and CPS Holdings, collectively, the "Debtors"), each filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Northern District of Ohio, Eastern Division (this "Court"). 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. No trustee, examiner, or official committee of unsecured creditors has been appointed in these Chapter 11 cases as of the date hereof. The Chapter 11 cases are jointly administered for procedural purposes under Case No. 22-51247 pursuant to the order of this Court entered on June 21, 2022 (Dkt. No. 8).

B. The DIP Motion.

On the Petition Date, the Debtors filed the DIP Motion (Dkt. No. 14), seeking authority to enter into a senior secured superpriority revolving credit facility (the "DIP Facility") with Ridgeline National Bank, N.A. ("Ridgeline"), a national banking association with its principal office located at 200 Public Square, Cleveland, OH 44114, in its capacity as administrative agent and collateral agent (in such capacity, the "DIP Agent"), and certain consenting first lien lenders party thereto from time to time (collectively, the "DIP Lenders" and, together with the DIP Agent, the "DIP Secured Parties"). The DIP Motion was supported by, among other things, the Declaration of Dana Kowalski, Chief Financial Officer of the Debtors, and the Declaration of Matthew Hollander of Aldersgate Advisory Group LLC, the Debtors' proposed financial advisor. The DIP Motion further sought authorization for the Debtors to use cash collateral and to grant adequate protection to the prepetition secured parties.

C. Interim DIP Order.

On June 24, 2022, following an interim hearing at which all parties in interest were afforded an opportunity to appear and be heard, this Court entered the Interim Order (I) Authorizing the Debtors to Obtain Postpetition Financing, (II) Granting Liens and Superpriority Administrative Expense Status, (III) Authorizing the Use of Cash Collateral, (IV) Granting Adequate Protection to Prepetition Secured Parties, and (V) Granting Related Relief (Dkt. No. 47) (the "Interim DIP Order"), authorizing the Debtors to borrow under the DIP Facility on an interim basis and granting certain related relief, pending the final hearing on the DIP Motion.

A final hearing on the DIP Motion (the "Final Hearing") was duly noticed and held on July 18, 2022, at which all parties in interest were afforded the opportunity to appear, be heard, and present evidence. Proper and adequate notice of the DIP Motion and the Final Hearing was given to: (i) the Office of the United States Trustee for Region 9 (Howard M. Metzenbaum U.S. Courthouse, 201 Superior Avenue, Cleveland, OH 44114); (ii) Hargrove, Mitchell & Saunders LLP, counsel to the Ad Hoc Group of First Lien Lenders (51 West 52nd Street, New York, NY 10019; lead partner Victoria Kline); (iii) Pemberton & Locke LLP, counsel to the Ad Hoc Group of Second Lien Noteholders (1 Liberty Plaza, New York, NY 10006; lead partner Raymond Delvecchio); (iv) Continental Fiduciary Trust Company, as Indenture Trustee under the Second Lien Notes Indenture (as defined below) (101 Barclay Street, New York, NY 10286); (v) all parties who have filed a request for notice in these Chapter 11 cases pursuant to Bankruptcy Rule 2002; and (vi) all other parties required to receive notice under the Bankruptcy Rules and the Local Rules.

D. Prepetition Capital Structure.

The Court has been informed of and takes judicial notice of the Debtors' prepetition capital structure, which consists of the following:

(i) First Lien Credit Agreement. That certain Credit Agreement, dated as of October 13, 2017 (as amended, restated, supplemented, or otherwise modified from time to time prior to the Petition Date, the "First Lien Credit Agreement"), among CPS, as borrower, CPS Holdings, as guarantor, Ridgeline National Bank, N.A., as administrative agent and collateral agent (in such capacity, the "Prepetition First Lien Agent"), and the lenders party thereto from time to time (collectively, the "First Lien Lenders" and, together with the Prepetition First Lien Agent, the "First Lien Secured Parties"). The First Lien Credit Agreement provides for:

(a) a revolving credit facility with a maximum commitment of $40,000,000 (the "First Lien Revolving Facility"), of which $32,600,000 was drawn and outstanding as of the Petition Date, bearing interest at the Secured Overnight Financing Rate ("SOFR") plus 375 basis points per annum, with a stated maturity date of October 13, 2022; and

(b) a term loan facility with an original principal amount of $175,000,000 (the "First Lien Term Loan"), of which $158,700,000 was outstanding as of the Petition Date, bearing interest at SOFR plus 425 basis points per annum, with a stated maturity date of October 13, 2024.

The total amount of First Lien Secured Claims outstanding as of the Petition Date was approximately $191,300,000 ($32,600,000 under the First Lien Revolving Facility plus $158,700,000 under the First Lien Term Loan), exclusive of accrued and unpaid interest, fees, costs, and other amounts owing thereunder (collectively, the "Prepetition First Lien Obligations"). The obligations under the First Lien Credit Agreement are secured by first-priority liens on and security interests in substantially all assets of the Debtors (collectively, the "Prepetition Collateral"), pursuant to that certain Pledge and Security Agreement and related collateral documents, each dated as of October 13, 2017.

(ii) Second Lien Notes Indenture. That certain Indenture, dated as of October 13, 2017 (as amended, restated, supplemented, or otherwise modified from time to time prior to the Petition Date, the "Second Lien Notes Indenture"), among CPS, as issuer, CPS Holdings, as guarantor, and Continental Fiduciary Trust Company, as trustee and collateral agent (in such capacity, the "Prepetition Second Lien Trustee"), providing for the issuance of 9.75% Senior Secured Second Lien Notes due 2025 (CUSIP 22761TAA3) (the "Second Lien Notes") in an original aggregate principal amount of $60,000,000, of which $56,000,000 in aggregate principal amount was outstanding as of the Petition Date (reflecting $4,000,000 in open-market repurchases completed in 2019). As of the Petition Date, approximately $3,900,000 in interest had accrued but remained unpaid, resulting in total Second Lien Secured Claims of approximately $59,900,000 (collectively, the "Prepetition Second Lien Obligations" and, together with the Prepetition First Lien Obligations, the "Prepetition Secured Obligations"). The Second Lien Notes are secured by second-priority liens on and security interests in the Prepetition Collateral, subordinate and junior to the liens securing the First Lien Credit Agreement, pursuant to the terms of the Intercreditor Agreement (as defined below). The holders of the Second Lien Notes and the Prepetition Second Lien Trustee are referred to collectively as the "Second Lien Secured Parties."

The total funded indebtedness of the Debtors as of the Petition Date was approximately $247,300,000. The holders of the First Lien Secured Claims and the Second Lien Secured Claims are referred to collectively herein as the "Prepetition Secured Parties."

E. Events Leading to the Filing.

The Debtors' need for Chapter 11 relief arose from, among other factors, a sustained decline in operating performance caused by significant increases in raw material costs (particularly petrochemical-based resins), supply chain disruptions, and the loss of certain customer contracts. In the first quarter of 2022, CPS breached the maximum leverage ratio financial covenant set forth in Section 7.11 of the First Lien Credit Agreement, which required Total Net Debt to EBITDA of no greater than 5.75 to 1.00. As of the last day of the fiscal quarter ended March 31, 2022, the Debtors' actual leverage ratio was approximately 8.50x ($247,300,000 in Total Net Debt divided by trailing twelve-month EBITDA of $29,100,000), exceeding the covenant threshold by 2.75x, representing a breach of approximately 47.8%.

On April 22, 2022, Ridgeline, as Prepetition First Lien Agent, delivered a Notice of Default (the "Notice of Default") to the Debtors pursuant to Section 8.01 of the First Lien Credit Agreement. The delivery of the Notice of Default triggered a cross-default under Section 6.01(e) of the Second Lien Notes Indenture. On May 18, 2022, the Debtors, Ridgeline, and the requisite lenders under the First Lien Credit Agreement entered into a Forbearance Agreement (the "Forbearance Agreement"), pursuant to which the First Lien Lenders agreed to forbear from exercising remedies for a period of forty-five (45) days (through July 2, 2022), which forbearance period was subsequently extended to July 15, 2022 by amendment dated June 29, 2022.

On July 8, 2022, the Debtors, CPS Holdings, Thornfield Capital Partners LP (the Debtors' equity sponsor, with offices at 590 Lexington Avenue, Suite 3200, New York, NY 10022), the Ad Hoc Group of First Lien Lenders, and the Ad Hoc Group of Second Lien Noteholders executed a Restructuring Support Agreement (the "RSA") setting forth the terms of a comprehensive restructuring of the Debtors' balance sheet to be effectuated through a prearranged plan of reorganization.

F. Need for DIP Financing.

The Debtors have demonstrated an immediate and critical need for postpetition financing to fund their ongoing operations during the pendency of these Chapter 11 cases. The Debtors operate four manufacturing facilities located in Akron, Ohio; Evansville, Indiana; Baton Rouge, Louisiana; and Ravenna, Ohio, and maintain a workforce of approximately 1,420 employees. Without access to the DIP Facility, the Debtors would be unable to fund payroll, maintain inventory levels, meet obligations to critical trade vendors and suppliers, and continue manufacturing operations necessary to preserve the going-concern value of their businesses for the benefit of all stakeholders. The Debtors reported revenue of $312,600,000 for fiscal year 2021 and EBITDA of $38,400,000 for the same period. Trailing twelve-month EBITDA as of the first quarter of 2022 declined to $29,100,000, reflecting an approximate 18% decline in revenue from fiscal year 2020 to fiscal year 2021 attributable primarily to resin cost increases and supply chain disruption. Access to the DIP Facility is essential to stabilize operations, maintain customer and vendor relationships, and fund the administrative costs of these Chapter 11 cases.

G. Good Cause and Findings.

The Court has reviewed the DIP Motion, the DIP Credit Agreement dated as of June 24, 2022, by and among CPS, as borrower, CPS Holdings, as guarantor, Ridgeline National Bank, N.A., as DIP Agent, and the DIP Lenders party thereto (the "DIP Credit Agreement"), the declarations filed in support of the DIP Motion (including the Declaration of Dana Kowalski, Chief Financial Officer of the Debtors), the exhibits attached thereto, the evidence adduced and arguments of counsel presented at both the interim hearing on June 24, 2022 and the Final Hearing on July 18, 2022, and all objections, if any, filed in response to the DIP Motion and the responses thereto. Based upon the foregoing, and after consideration of the totality of the circumstances, the Court finds and concludes that: (i) the terms of the DIP Facility are fair and reasonable; (ii) the DIP Facility was negotiated in good faith and at arm's length among the Debtors, the DIP Agent, and the DIP Lenders; (iii) the DIP Facility reflects the Debtors' exercise of prudent business judgment; and (iv) the Debtors were unable to obtain unsecured credit allowable as an administrative expense under Section 503(b)(1) of the Bankruptcy Code, or credit secured solely by a lien on property of the estate that is not otherwise subject to a lien, or credit secured by a junior lien on property of the estate that is subject to a lien, or credit secured by a senior or equal lien on property of the estate that is subject to a lien, on terms more favorable than the terms of the DIP Facility.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Based on the entire record before the Court, including the DIP Motion, the declarations and exhibits in support thereof, the arguments of counsel, the evidence presented at the interim hearing and the Final Hearing, and the full record in these Chapter 11 cases, the Court hereby makes the following findings of fact and conclusions of law:

1. Jurisdiction and Venue. This Court has jurisdiction over these Chapter 11 cases and the DIP Motion pursuant to 28 U.S.C. §§ 157 and 1334 and the General Order of Reference entered in this district. Venue of these Chapter 11 cases and the DIP Motion is proper in this district pursuant to 28 U.S.C. §§ 1408 and 1409. This matter constitutes a core proceeding within the meaning of 28 U.S.C. § 157(b)(2), and the Court has the constitutional authority to enter a final order with respect thereto. The Debtors have consented to the entry of a final order by this Court.

2. Notice. Adequate and sufficient notice of the DIP Motion, the Interim DIP Order, and the Final Hearing was provided to all parties required to receive notice, including, without limitation: (a) the Office of the United States Trustee for Region 9 (Howard M. Metzenbaum U.S. Courthouse, 201 Superior Avenue, Cleveland, OH 44114); (b) Hargrove, Mitchell & Saunders LLP, as counsel to the Ad Hoc Group of First Lien Lenders (51 West 52nd Street, New York, NY 10019); (c) Pemberton & Locke LLP, as counsel to the Ad Hoc Group of Second Lien Noteholders (1 Liberty Plaza, New York, NY 10006); (d) Continental Fiduciary Trust Company, as Indenture Trustee (101 Barclay Street, New York, NY 10286); and (e) all parties that have filed requests for notice in these Chapter 11 cases pursuant to Bankruptcy Rule 2002. No further notice of the DIP Motion or the Final Hearing is required. The notice given was sufficient to satisfy the requirements of the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules.

3. Good Cause. Good cause has been shown for entry of this Final Order pursuant to Sections 105, 361, 362, 363, and 364 of the Bankruptcy Code. Entry of this Final Order is in the best interests of the Debtors' estates, their creditors, and all parties in interest.

4. Business Justification and Necessity. The Debtors have an immediate and critical need for the DIP Facility in order to, among other things: (a) fund ongoing operations at their four manufacturing facilities; (b) meet payroll obligations for approximately 1,420 employees; (c) maintain relationships with critical vendors and suppliers, including Northstar Polymers Inc. and other key raw material providers; (d) preserve the going-concern value of the Debtors' businesses and assets; (e) fund the costs of administration of these Chapter 11 cases; and (f) pursue a successful reorganization for the benefit of all stakeholders. The Debtors have demonstrated that, without the DIP Facility, they would suffer immediate and irreparable harm, including the potential loss of key customer and vendor relationships, disruption to manufacturing operations, and the erosion of enterprise value. The DIP Facility is essential to the Debtors' ability to operate as going concerns during these Chapter 11 cases.

5. No Credit Available on Better Terms. The Debtors have been unable to obtain sufficient postpetition financing on any basis other than the terms and conditions set forth in the DIP Credit Agreement and this Final Order. The Debtors have established, and the Court finds, that credit was not available to the Debtors on an unsecured basis under Section 503(b)(1) of the Bankruptcy Code, or on a secured basis pursuant to Section 364(c) or (d) of the Bankruptcy Code, on terms more favorable than those provided under the DIP Facility. The DIP Facility represents the best available financing for the Debtors under the circumstances.

6. Good Faith — Section 364(e). The DIP Agent and the DIP Lenders have extended credit under the DIP Facility in good faith within the meaning of Section 364(e) of the Bankruptcy Code, and the DIP Agent and the DIP Lenders are entitled to the full protections afforded by Section 364(e) of the Bankruptcy Code, including protection against reversal or modification on appeal. The terms and conditions of the DIP Facility were the product of good faith, arm's-length negotiations among the Debtors, the DIP Agent, and the DIP Lenders. Neither the DIP Agent nor any DIP Lender has engaged in any inequitable conduct in connection with the negotiation, documentation, or extension of credit under the DIP Facility.

7. Adequate Protection. The Prepetition Secured Parties are entitled to adequate protection of their interests in the Prepetition Collateral pursuant to Sections 361, 362, 363, and 364 of the Bankruptcy Code to the extent of any diminution in the value of such interests resulting from, among other things: (a) the Debtors' use, sale, or lease of Prepetition Collateral (including cash collateral); (b) the priming of the Prepetition Secured Parties' liens pursuant to Section 364(d)(1) of the Bankruptcy Code; and (c) the imposition of the automatic stay under Section 362 of the Bankruptcy Code. The adequate protection provided to the Prepetition Secured Parties as set forth in this Final Order is sufficient to protect the Prepetition Secured Parties' interests in the Prepetition Collateral.

ORDERING PROVISIONS

Based upon the foregoing Recitals and Findings of Fact and Conclusions of Law, each of which is incorporated herein by reference, and for good cause shown, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as follows:

I. AUTHORIZATION OF DIP FACILITY

A. Approval of DIP Credit Agreement. The DIP Motion is hereby GRANTED on a final basis. The Debtors are authorized to borrow under the DIP Facility, on the terms and conditions set forth in the DIP Credit Agreement dated as of June 24, 2022, up to an aggregate principal amount of Thirty Million Dollars ($30,000,000) (the "DIP Facility Amount"), in the form of a senior secured superpriority revolving credit facility. All terms and conditions of the DIP Credit Agreement, a copy of which is attached hereto as Exhibit A and incorporated herein by reference, are hereby approved in their entirety.

B. Material Terms of the DIP Facility. The material terms of the DIP Facility are as follows:

(a) DIP Agent: Ridgeline National Bank, N.A., 200 Public Square, Cleveland, OH 44114.

(b) DIP Lenders: The consenting first lien lenders party to the DIP Credit Agreement from time to time.

(d) Maximum Commitment: $30,000,000.

(e) Interest Rate: SOFR plus 500 basis points per annum, calculated on the basis of actual days elapsed and a 360-day year, payable monthly in arrears on the first business day of each calendar month.

(f) Default Interest Rate: Upon the occurrence and during the continuance of an Event of Default (as defined in the DIP Credit Agreement), interest shall accrue at an additional 200 basis points per annum above the applicable interest rate set forth in clause (e) above.

(g) Commitment Fee: 1.50% of the DIP Facility Amount (i.e., $450,000), fully earned and payable on the closing date of the DIP Facility.

(h) Closing Fee: 2.00% of the DIP Facility Amount (i.e., $600,000), fully earned and payable on the closing date of the DIP Facility.

(i) Maturity Date: The earlier of (x) 120 days after the Petition Date (i.e., October 18, 2022) or (y) the effective date of the Debtors' plan of reorganization (the "Maturity Date").

(j) DIP Budget: The Debtors shall comply with a 13-week rolling cash flow budget (the "DIP Budget"), a copy of the initial DIP Budget being attached hereto as Exhibit B, with permitted aggregate disbursement variances of plus or minus fifteen percent (±15%), tested on a bi-weekly basis as set forth in the DIP Credit Agreement. The DIP Budget shall be updated and delivered to the DIP Agent every two weeks, or more frequently as reasonably requested by the DIP Agent.

C. Authorization to Execute Documents. The Debtors are hereby authorized and empowered to execute, deliver, and perform under the DIP Credit Agreement and all related documents, instruments, agreements, certificates, and other ancillary materials (collectively, the "DIP Documents") as are necessary or appropriate to effectuate the DIP Facility and the transactions contemplated thereby. The Debtors' officers, managers, and authorized representatives are authorized to take all actions and execute all documents as may be reasonably necessary to give effect to the provisions of this Final Order and the DIP Documents.

II. DIP LIENS

A. Grant of Liens — Section 364(c)(2) and 364(c)(3). As security for the prompt and complete payment and performance of all obligations arising under or in connection with the DIP Credit Agreement, this Final Order, and the other DIP Documents, whether now existing or hereafter arising (collectively, the "DIP Obligations"), the DIP Agent is hereby granted, effective as of the Petition Date, for the benefit of the DIP Agent and the DIP Lenders, valid, binding, continuing, enforceable, fully perfected, first-priority liens on and security interests in (collectively, the "DIP Liens") the following property:

(i) Pursuant to Section 364(c)(2) of the Bankruptcy Code, a first-priority lien on all presently owned or hereafter acquired assets of the Debtors and their estates that are not otherwise subject to a valid, perfected, and non-avoidable lien in existence as of the Petition Date (collectively, "Unencumbered Property"), including, without limitation, all real property, personal property, fixtures, accounts, inventory, equipment, general intangibles, intellectual property, contract rights, causes of action (other than avoidance actions or proceeds thereof as set forth below), and all proceeds and products thereof.

(ii) Pursuant to Section 364(c)(3) of the Bankruptcy Code, a junior lien on all assets of the Debtors and their estates that are subject to valid, perfected, and non-avoidable liens in existence as of the Petition Date or to Permitted Prior Liens (as defined in Section VIII of this Final Order), which junior lien shall be subordinate only to such prepetition liens and to the Carve-Out (as defined in Section IV of this Final Order).

B. Priming Liens — Section 364(d)(1). Pursuant to Section 364(d)(1) of the Bankruptcy Code, the DIP Agent is hereby granted, effective as of the Petition Date, for the benefit of the DIP Agent and the DIP Lenders, a first-priority senior priming lien on all Prepetition Collateral (the "DIP Priming Liens"), which priming lien shall be senior in priority to all existing liens on such Prepetition Collateral, including, without limitation, the liens securing the Prepetition First Lien Obligations under the First Lien Credit Agreement and the Prepetition Second Lien Obligations under the Second Lien Notes Indenture, subject only to: (x) the Carve-Out and (y) Permitted Prior Liens. The Prepetition Secured Parties are adequately protected as set forth in Section V of this Final Order, and such adequate protection is sufficient, pursuant to Section 364(d)(1)(B) of the Bankruptcy Code, to support the grant of the DIP Priming Liens.

C. Perfection. The DIP Liens (including the DIP Priming Liens) shall be deemed automatically and fully perfected upon entry of this Final Order without the necessity of the DIP Agent or any DIP Lender filing financing statements under the Uniform Commercial Code, mortgages, deeds of trust, notices, or other documents in any jurisdiction, or taking any other action to perfect such liens and security interests, and no such filing or action shall be necessary to create or perfect any such lien or security interest; provided, however, that the DIP Agent may, in its sole discretion, file financing statements, mortgages, deeds of trust, or other documents or instruments, or take any other action, to evidence or further perfect the DIP Liens, and the Debtors and their officers, managers, and authorized representatives shall cooperate with and execute any such documents or instruments as may be reasonably requested by the DIP Agent. All such filings, if any, shall be deemed to have been filed or recorded at the time and on the date of the entry of this Final Order.

D. DIP Collateral. The property of the Debtors' estates subject to the DIP Liens and the DIP Priming Liens is referred to herein collectively as the "DIP Collateral." The DIP Collateral shall include all of the Debtors' right, title, and interest in and to all assets and property, whether now owned or hereafter acquired, real or personal, tangible or intangible, and all proceeds and products thereof, excluding only the proceeds of avoidance actions arising under Chapter 5 of the Bankruptcy Code (except to the extent such exclusion is limited by the DIP Credit Agreement).

III. SUPERPRIORITY ADMINISTRATIVE EXPENSE CLAIMS

A. Section 364(c)(1) Superpriority. Pursuant to Section 364(c)(1) of the Bankruptcy Code, all DIP Obligations shall constitute allowed superpriority administrative expense claims against each of the Debtors and their respective estates (the "DIP Superpriority Claims"), with priority in payment over any and all administrative expense claims, unsecured claims, and all other claims against the Debtors or their estates now existing or hereafter arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kind specified in Sections 503(b) and 507(b) of the Bankruptcy Code (whether or not such expenses or claims have been allowed), and all other claims arising under or pursuant to Sections 105, 326, 328, 330, 331, 503(b), 506(c) (subject to Section XIII of this Final Order), 507(a), 507(b), 546(c), 726, 1113, or 1114 of the Bankruptcy Code, in each case subject only to the Carve-Out. The DIP Superpriority Claims shall be payable from and have recourse to all of the property of the Debtors and their estates, and shall not be subordinated to, or pari passu with, any other claims in these Chapter 11 cases.

IV. CARVE-OUT. A. Definition. As used in this Final Order, the term "Carve-Out" shall mean the sum of the following amounts:

(i) all unpaid fees of the Clerk of the Bankruptcy Court and the United States Trustee pursuant to 28 U.S.C. § 1930(a)(6), without regard to whether a Carve-Out Trigger Notice (as defined below) has been delivered;

(ii) all reasonable and documented fees and expenses incurred by professionals retained by the Debtors pursuant to Sections 327 or 328 of the Bankruptcy Code (the "Debtor Professionals"), including Calderwood & Harkness LLP (restructuring counsel), Kellner & Hartwick LLP (local counsel), Aldersgate Advisory Group LLC (financial advisor), Dralvecen Reyes Linley CPAs LLP & Associates LLP (tax advisor), and Pinnacle Claims Administration LLC (claims and noticing agent), and all reasonable and documented fees and expenses incurred by professionals retained by any statutory committee of unsecured creditors appointed in these Chapter 11 cases (the "Committee Professionals" and, together with the Debtor Professionals, the "Estate Professionals"), in each case to the extent allowed by the Court, through and including the date that is five (5) business days after the delivery by the DIP Agent of a Carve-Out Trigger Notice; plus

(iii) following the date of delivery of a Carve-Out Trigger Notice, all reasonable and documented professional fees and expenses incurred by the Estate Professionals in an aggregate amount not to exceed One Million Five Hundred Thousand Dollars ($1,500,000) (the "Post-Trigger Carve-Out Cap").

For the avoidance of doubt, the Carve-Out shall be senior to the DIP Liens, the DIP Superpriority Claims, and any and all liens and claims granted to the Prepetition Secured Parties pursuant to this Final Order.

B. Carve-Out Trigger Notice. The DIP Agent may deliver a written notice (the "Carve-Out Trigger Notice") to the Debtors and their counsel (Calderwood & Harkness LLP and Kellner & Hartwick LLP) upon the occurrence and during the continuance of an Event of Default under the DIP Credit Agreement. Delivery of a Carve-Out Trigger Notice shall commence the running of the five (5) business day period described in clause (ii) of Section IV.A above and shall trigger the Post-Trigger Carve-Out Cap described in clause (iii) of Section IV.A above. Nothing in this Final Order shall be construed to impair or limit the ability of any party to object to the reasonableness of any fees and expenses sought by any Estate Professional.

V. ADEQUATE PROTECTION FOR PREPETITION SECURED PARTIES

As adequate protection of the interests of the Prepetition Secured Parties in the Prepetition Collateral, and pursuant to Sections 361, 362, 363(e), and 364(d)(1) of the Bankruptcy Code, the following adequate protection is hereby granted:

A. Adequate Protection for First Lien Secured Parties.

The holders of claims under the First Lien Credit Agreement (the "First Lien Secured Parties"), including the Prepetition First Lien Agent, in their capacity as holders of Prepetition First Lien Obligations totaling approximately $191,300,000 in aggregate principal amount outstanding as of the Petition Date (exclusive of accrued and unpaid interest, fees, costs, and other amounts), shall receive the following adequate protection, to the extent of any diminution in the value of their interests in the Prepetition Collateral, from and after the Petition Date:

1. Adequate Protection Liens. The First Lien Secured Parties are hereby granted, pursuant to Sections 361(2) and 363(e) of the Bankruptcy Code, valid, binding, continuing, enforceable, fully perfected replacement liens on and security interests in (the "First Lien Adequate Protection Liens") all postpetition assets of the Debtors and their estates, including all DIP Collateral and all proceeds and products thereof, whether now owned or hereafter acquired (excluding the proceeds of avoidance actions arising under Chapter 5 of the Bankruptcy Code, except as otherwise provided in the DIP Credit Agreement). The First Lien Adequate Protection Liens shall be junior only to: (a) the DIP Liens (including the DIP Priming Liens); (b) the Carve-Out; and (c) Permitted Prior Liens. The First Lien Adequate Protection Liens shall be deemed automatically perfected without the necessity of any further action by the First Lien Secured Parties.

2. Adequate Protection Superpriority Claims. The First Lien Secured Parties are hereby granted allowed superpriority administrative expense claims under Section 507(b) of the Bankruptcy Code (the "First Lien Adequate Protection Superpriority Claims"), which claims shall be junior to the DIP Superpriority Claims and the Carve-Out, but shall be senior to all other administrative expense claims and priority claims of any kind or nature, including claims arising under Sections 503(b) and 507(a) of the Bankruptcy Code.

3. Adequate Protection Payments — Current Interest. As further adequate protection, the Debtors shall pay current interest to the First Lien Secured Parties (through the Prepetition First Lien Agent) at the applicable non-default contract rate under the First Lien Credit Agreement on the outstanding Prepetition First Lien Obligations, payable monthly in arrears on the first business day of each calendar month during the pendency of these Chapter 11 cases, commencing on August 1, 2022. Such adequate protection payments shall be made from the proceeds of the DIP Facility and cash collateral in accordance with the DIP Budget and shall not constitute a modification of the automatic stay or an admission as to the allowed amount of the Prepetition First Lien Obligations.

4. Payment of Fees and Expenses. As further adequate protection, the Debtors shall pay the reasonable and documented fees and expenses of Hargrove, Mitchell & Saunders LLP, as counsel to the Ad Hoc Group of First Lien Lenders (lead partner Victoria Kline; lead associate Thomas Frey; 51 West 52nd Street, New York, NY 10019), promptly upon presentation of invoices therefor, in accordance with the DIP Budget. Such payments shall be made without the necessity of filing fee applications with the Court, but shall be subject to Court review upon request by the Debtors, the U.S. Trustee, or any party in interest.

5. Reporting and Information Rights. As further adequate protection, the Debtors shall provide the First Lien Secured Parties (through the DIP Agent, in its dual capacity as DIP Agent and Prepetition First Lien Agent) with the following: (a) copies of the 13-week rolling DIP Budget, as updated and delivered to the DIP Agent on a bi-weekly basis; (b) bi-weekly variance reports showing actual results compared to the DIP Budget; (c) monthly unaudited financial statements of the Debtors, including a balance sheet, income statement, and cash flow statement, within thirty (30) days following the end of each calendar month; and (d) such other financial information as may be reasonably requested by the Prepetition First Lien Agent from time to time.

B. Adequate Protection for Second Lien Secured Parties.

The holders of claims under the Second Lien Notes Indenture (the "Second Lien Secured Parties"), including the Prepetition Second Lien Trustee, in their capacity as holders of Prepetition Second Lien Obligations totaling approximately $59,900,000 as of the Petition Date ($56,000,000 in aggregate principal amount outstanding plus $3,900,000 in accrued and unpaid interest), shall receive the following adequate protection, to the extent of any diminution in the value of their interests in the Prepetition Collateral, from and after the Petition Date:

1. Adequate Protection Liens. The Second Lien Secured Parties are hereby granted, pursuant to Sections 361(2) and 363(e) of the Bankruptcy Code, valid, binding, continuing, enforceable, fully perfected replacement liens on and security interests in (the "Second Lien Adequate Protection Liens") all postpetition assets of the Debtors and their estates, including all DIP Collateral and all proceeds and products thereof, whether now owned or hereafter acquired (excluding the proceeds of avoidance actions arising under Chapter 5 of the Bankruptcy Code, except as otherwise provided in the DIP Credit Agreement). The Second Lien Adequate Protection Liens shall be junior to: (a) the DIP Liens (including the DIP Priming Liens); (b) the Carve-Out; (c) Permitted Prior Liens; (d) the First Lien Adequate Protection Liens; and (e) the liens securing the Prepetition First Lien Obligations under the First Lien Credit Agreement. The Second Lien Adequate Protection Liens shall be deemed automatically perfected without the necessity of any further action by the Second Lien Secured Parties.

2. Adequate Protection Superpriority Claims. The Second Lien Secured Parties are hereby granted allowed superpriority administrative expense claims under Section 507(b) of the Bankruptcy Code (the "Second Lien Adequate Protection Superpriority Claims"), which claims shall be junior to the DIP Superpriority Claims, the Carve-Out, and the First Lien Adequate Protection Superpriority Claims, but shall be senior to all other administrative expense claims and priority claims (other than the DIP Superpriority Claims and the First Lien Adequate Protection Superpriority Claims).

3. Payment of Fees and Expenses. As further adequate protection, the Debtors shall pay the reasonable and documented fees and expenses of Pemberton & Locke LLP, as counsel to the Ad Hoc Group of Second Lien Noteholders (lead partner Raymond Delvecchio; lead associate Nia Patterson; 1 Liberty Plaza, New York, NY 10006), promptly upon presentation of invoices therefor, in accordance with the DIP Budget. Such payments shall be made without the necessity of filing fee applications with the Court, but shall be subject to Court review upon request by the Debtors, the U.S. Trustee, or any party in interest.

4. Reporting and Information Rights. As further adequate protection, the Second Lien Secured Parties (through Continental Fiduciary Trust Company, as Indenture Trustee, 101 Barclay Street, New York, NY 10286) shall receive copies of the same financial reporting provided to the First Lien Secured Parties pursuant to Section V.A.5 of this Final Order, subject to applicable confidentiality restrictions and the terms of any applicable non-disclosure agreement or confidentiality order entered in these cases.

VI. USE OF CASH COLLATERAL

A. Authorization. The Debtors are hereby authorized, pursuant to Section 363 of the Bankruptcy Code, to use cash collateral (as defined in Section 363(a) of the Bankruptcy Code) of the Prepetition Secured Parties in accordance with the DIP Budget and the terms and conditions of this Final Order and the DIP Credit Agreement. The authorization to use cash collateral granted herein is subject to the adequate protection provided to the Prepetition Secured Parties as set forth in Section V of this Final Order.

B. DIP Budget Compliance. The Debtors shall use proceeds of the DIP Facility and cash collateral solely in accordance with the DIP Budget, a copy of which is attached hereto as Exhibit B. The Debtors shall not permit aggregate disbursements for any bi-weekly testing period to exceed or fall below the amounts projected in the DIP Budget by more than fifteen percent (±15%) (the "Permitted Variance"). Budget compliance shall be tested on a bi-weekly basis, with variance reports delivered to the DIP Agent no later than the third business day following the end of each bi-weekly testing period. Any variance beyond the Permitted Variance threshold (a "Material Variance") shall constitute an Event of Default under the DIP Credit Agreement unless such Material Variance is waived in writing by the DIP Agent (acting at the direction of the Required DIP Lenders, as defined in the DIP Credit Agreement).

VII. EVENTS OF DEFAULT AND REMEDIES

A. Events of Default. The occurrence of any of the following events shall constitute an "Event of Default" for purposes of this Final Order and the DIP Credit Agreement, to the extent set forth and more fully described in the DIP Credit Agreement:

(i) failure by the Debtors to comply with the DIP Budget beyond the Permitted Variance;

(ii) failure by the Debtors to satisfy any milestone or deadline under the Restructuring Support Agreement dated July 8, 2022, including, without limitation: (a) filing a disclosure statement and obtaining approval thereof within forty-five (45) days of the Petition Date (i.e., by August 4, 2022); (b) obtaining an order confirming the Debtors' plan of reorganization within ninety (90) days of the Petition Date (i.e., by September 18, 2022); and (c) the occurrence of the effective date of the Debtors' plan of reorganization within fifteen (15) business days following entry of the confirmation order;

(iii) termination of the RSA for any reason;

(iv) conversion of any of the Debtors' Chapter 11 cases to a case under Chapter 7 of the Bankruptcy Code;

(v) appointment of a Chapter 11 trustee or an examiner with expanded powers in any of the Debtors' Chapter 11 cases;

(vi) entry of an order by any court of competent jurisdiction granting relief from the automatic stay under Section 362 of the Bankruptcy Code with respect to any material portion of the Debtors' assets (having a value in excess of $500,000 in the aggregate); and

(vii) any other Event of Default as set forth in the DIP Credit Agreement.

B. Remedies. Upon the occurrence and during the continuance of an Event of Default under the DIP Credit Agreement, and upon five (5) business days' prior written notice (the "Remedies Notice Period") delivered to: (a) the Debtors; (b) Calderwood & Harkness LLP (30 Rockefeller Plaza, New York, NY 10112 and 127 Public Square, Suite 4100, Cleveland, OH 44114); (c) Kellner & Hartwick LLP (600 Superior Avenue East, Suite 1800, Cleveland, OH 44114); (d) the Office of the United States Trustee for Region 9 (201 Superior Avenue, Cleveland, OH 44114); and (e) any official committee of unsecured creditors appointed in these Chapter 11 cases (through its counsel), the DIP Agent may exercise any or all of the following remedies:

(i) terminate all remaining commitments under the DIP Facility;

(ii) declare all DIP Obligations to be immediately due and payable in full;

(iii) exercise any and all rights and remedies available to the DIP Agent and the DIP Lenders with respect to the DIP Collateral under applicable law, the DIP Credit Agreement, and this Final Order, including the right to foreclose upon, sell, assign, or otherwise dispose of the DIP Collateral, subject to the Carve-Out; and

(iv) exercise any and all other rights and remedies available under the DIP Credit Agreement, this Final Order, or applicable law.

During the Remedies Notice Period, the Debtors and any other party in interest may seek an emergency hearing before this Court to contest the exercise of remedies by the DIP Agent, and the Court shall use reasonable efforts to schedule such hearing prior to the expiration of the Remedies Notice Period. The five-business-day Remedies Notice Period shall not apply to any action that would be taken solely in the Court or to any request for relief that may be made by motion or application to the Court.

VIII. PERMITTED PRIOR LIENS

As used in this Final Order, the term "Permitted Prior Liens" means those liens and encumbrances that are senior in priority to the prepetition liens of the First Lien Secured Parties and the Second Lien Secured Parties by operation of applicable non-bankruptcy law and that are not subject to avoidance under Chapter 5 of the Bankruptcy Code or other applicable law. Permitted Prior Liens include, without limitation, statutory liens (such as tax liens, mechanic's liens, materialmen's liens, and warehousemen's liens) that are valid, properly perfected, and unavoidable under applicable law as of the Petition Date. A schedule of known Permitted Prior Liens is attached hereto as Exhibit C.

IX. MODIFICATION OF AUTOMATIC STAY

A. Stay Relief. The automatic stay imposed under Section 362 of the Bankruptcy Code is hereby modified to the extent necessary to permit: (a) the DIP Agent and the DIP Lenders to exercise their rights and remedies under the DIP Credit Agreement and this Final Order upon the occurrence and during the continuance of an Event of Default, subject to the Remedies Notice Period and other notice provisions set forth in Section VII.B of this Final Order; and (b) the Debtors to grant the DIP Liens (including the DIP Priming Liens), provide the adequate protection contemplated herein, perform their obligations under the DIP Credit Agreement and the other DIP Documents, and take all actions authorized or contemplated by this Final Order. This modification of the automatic stay is necessary and appropriate to effectuate the terms of this Final Order and the DIP Facility.

B. No Waiver of Stay Otherwise. Except as expressly set forth in this Final Order, nothing herein shall be deemed to constitute a modification, waiver, or termination of the automatic stay imposed by Section 362 of the Bankruptcy Code with respect to any other party or any other action, and the automatic stay shall remain in full force and effect as to all parties and actions not expressly addressed herein.

X. WAIVER AND STIPULATIONS

A. Debtors' Stipulations. The Debtors hereby stipulate, acknowledge, and agree, for the benefit of the Prepetition Secured Parties and all parties in interest, as follows:

(i) The Prepetition First Lien Obligations under the First Lien Credit Agreement, in the aggregate principal amount of approximately $191,300,000 outstanding as of the Petition Date, together with all accrued and unpaid interest, fees, costs, and other amounts owing thereunder, constitute legal, valid, binding, and enforceable obligations of the Debtors, and are not subject to any defense, counterclaim, offset, recoupment, or avoidance.

(ii) The Prepetition Second Lien Obligations under the Second Lien Notes Indenture, in the aggregate amount of approximately $59,900,000 outstanding as of the Petition Date (inclusive of $56,000,000 in principal and $3,900,000 in accrued and unpaid interest), together with all other fees, costs, and amounts owing thereunder, constitute legal, valid, binding, and enforceable obligations of the Debtors, and are not subject to any defense, counterclaim, offset, recoupment, or avoidance.

(iii) The liens and security interests securing the Prepetition First Lien Obligations and the Prepetition Second Lien Obligations were validly granted, properly perfected, are non-avoidable, and are enforceable against the Debtors and their estates in accordance with their terms and applicable law.

(iv) The Debtors have no claims, counterclaims, causes of action, defenses, setoffs, recoupments, or offsets of any kind or nature, whether arising under the Bankruptcy Code or applicable non-bankruptcy law, against any of the Prepetition Secured Parties, the Prepetition First Lien Agent, the Prepetition Second Lien Trustee, or any of their respective agents, representatives, attorneys, advisors, or affiliates, in each case with respect to the Prepetition Secured Obligations, the Prepetition Collateral, or any actions taken or omitted to be taken by any such party in connection therewith.

B. Challenge Period. Notwithstanding the foregoing stipulations set forth in Section X.A of this Final Order, any party in interest with standing (including any official committee of unsecured creditors, if and when appointed, or the United States Trustee) shall have seventy-five (75) days from the entry of this Final Order (the "Investigation Period") to investigate and, if appropriate, commence an adversary proceeding or contested matter (a "Challenge Proceeding") to challenge, object to, or contest any of the findings, stipulations, or conclusions set forth in Section X.A of this Final Order, including, without limitation, the validity, extent, perfection, priority, or enforceability of the Prepetition Secured Obligations, the liens securing such obligations, or the absence of claims, counterclaims, or defenses against the Prepetition Secured Parties; provided, however, that in the case of any official committee of unsecured creditors appointed in these Chapter 11 cases, the Investigation Period shall expire on the later of (x) seventy-five (75) days from the entry of this Final Order or (y) seventy-five (75) days from the date of formation of such committee.

If no Challenge Proceeding is timely commenced within the applicable Investigation Period, the stipulations set forth in Section X.A of this Final Order shall be binding upon all parties in interest for all purposes in these Chapter 11 cases and any successor proceedings, and shall not be subject to further investigation, challenge, contest, or review by any party, and the Prepetition Secured Obligations and the liens securing such obligations shall be deemed to have been finally allowed and determined. The filing of a Challenge Proceeding within the Investigation Period shall not toll or extend the deadline as to any claims or issues not asserted in such Challenge Proceeding.

XI. INSURANCE PROVISIONS

Nothing in this Final Order shall impair, diminish, or otherwise modify the Debtors' directors' and officers' tail insurance policy issued by Apex Indemnity Insurance Company, Policy No. DOT-2022-CP-04871, providing aggregate coverage of Fifteen Million Dollars ($15,000,000), with a tail premium of One Million Two Hundred Thousand Dollars ($1,200,000). The proceeds of such directors' and officers' tail insurance policy shall not constitute DIP Collateral, Prepetition Collateral, or property of the Debtors' estates for purposes of this Final Order, and no lien granted hereunder shall attach to such proceeds.

XII. PROVISIONS REGARDING PROFESSIONAL FEES

Nothing in this Final Order shall prejudice, impair, or otherwise affect the right of the Debtors' professionals retained in these Chapter 11 cases, including Calderwood & Harkness LLP (estimated aggregate fees of approximately $4,200,000), Kellner & Hartwick LLP (estimated aggregate fees of approximately $380,000), Aldersgate Advisory Group LLC (estimated aggregate fees of approximately $4,025,000, comprising a completion fee of $3,500,000 and a monthly advisory fee of $175,000 per month), Dralvecen Reyes Linley CPAs LLP & Associates LLP (estimated aggregate fees of approximately $410,000), and Pinnacle Claims Administration LLC (estimated aggregate fees of approximately $285,000), to seek allowance and payment of their respective fees and expenses in accordance with Sections 327, 328, 330, and 331 of the Bankruptcy Code and the applicable orders of this Court approving the retention of such professionals. All such professional fees and expenses shall be subject to and entitled to the benefit of the Carve-Out as set forth in Section IV of this Final Order.

XIII. SECTION 506(c) WAIVER

Except to the extent of the Carve-Out, no costs or expenses of administration that have been or may be incurred in these Chapter 11 cases at any time shall be charged against or recovered from the DIP Collateral or the Prepetition Collateral pursuant to Section 506(c) of the Bankruptcy Code, or any similar principle of law or equity (including, without limitation, the "equities of the case" exception under Section 552(b) of the Bankruptcy Code or any theory of unjust enrichment), without the prior written consent of the DIP Agent (with respect to the DIP Collateral) or the applicable Prepetition Secured Party (with respect to the Prepetition Collateral). No such consent shall be implied from any action, inaction, or acquiescence by the DIP Agent or any Prepetition Secured Party.

XIV. SECTION 552(b) PROVISIONS

The Prepetition Secured Parties shall be entitled to the benefits of Section 552(b) of the Bankruptcy Code, and the liens and security interests of the Prepetition Secured Parties shall extend to all proceeds, products, offspring, rents, and profits of the Prepetition Collateral acquired, generated, or received by the Debtors after the Petition Date. The "equities of the case" exception under Section 552(b) of the Bankruptcy Code shall not apply to diminish or limit the liens, security interests, or claims of the Prepetition Secured Parties in any respect, and no party in interest shall seek to invoke or apply such exception.

XV. INTERCREDITOR PROVISIONS

The relative priorities, rights, and obligations as among the First Lien Secured Parties and the Second Lien Secured Parties shall continue to be governed by that certain Intercreditor Agreement, dated as of October 13, 2017 (the "Intercreditor Agreement"), by and between Ridgeline National Bank, N.A. (in its capacity as First Lien Agent) and Continental Fiduciary Trust Company (in its capacity as Second Lien Trustee), as such agreement may have been amended, supplemented, or otherwise modified from time to time prior to the Petition Date. Nothing in this Final Order shall alter, amend, modify, or otherwise affect the terms, provisions, or relative priorities established by the Intercreditor Agreement, except as expressly provided herein with respect to the adequate protection granted to the First Lien Secured Parties and the Second Lien Secured Parties, respectively, in Section V of this Final Order. To the extent of any conflict between the terms of this Final Order and the terms of the Intercreditor Agreement, the terms of this Final Order shall control.

XVI. NO MARSHALING

In no event shall the DIP Agent, the DIP Lenders, or the Prepetition Secured Parties be subject to the equitable doctrine of marshaling or any other similar doctrine with respect to the DIP Collateral, the Prepetition Collateral, or any other property of the Debtors or their estates. The DIP Agent, the DIP Lenders, and the Prepetition Secured Parties shall not be required to marshal any of their liens or claims, or any collateral securing such liens or claims, for the benefit of any other person or entity.

XVII. BINDING EFFECT AND SURVIVAL

The provisions of this Final Order, including, without limitation, the DIP Liens, the DIP Superpriority Claims, the Adequate Protection Liens, and the Adequate Protection Superpriority Claims, shall be binding upon the Debtors, their estates, the DIP Agent, the DIP Lenders, the Prepetition Secured Parties, all creditors and parties in interest, and their respective successors, assigns, heirs, executors, administrators, and representatives, and shall inure to the benefit of the foregoing parties and their respective successors and assigns. The DIP Liens, the DIP Superpriority Claims, the Adequate Protection Liens, and the Adequate Protection Superpriority Claims shall continue in full force and effect, and shall maintain their priority and validity as provided herein, notwithstanding:

(a) the entry of an order dismissing any or all of the Debtors' Chapter 11 cases under Section 1112 of the Bankruptcy Code or otherwise;

(b) the entry of an order converting any or all of the Debtors' Chapter 11 cases to cases under Chapter 7 of the Bankruptcy Code;

(c) the entry of an order appointing a trustee under Chapter 7 or Chapter 11 of the Bankruptcy Code, or appointing an examiner with expanded powers; or

(d) the entry of an order confirming a plan of reorganization in any of the Debtors' Chapter 11 cases (which plan shall provide for the indefeasible payment in full in cash of all DIP Obligations on or before the effective date thereof, unless otherwise agreed in writing by the DIP Agent).

In the event of a dismissal or conversion of any of these Chapter 11 cases, neither the DIP Liens, the DIP Superpriority Claims, nor any of the other rights and protections granted to the DIP Agent, the DIP Lenders, or the Prepetition Secured Parties pursuant to this Final Order shall be affected, diminished, or impaired in any way.

XVIII. SECTION 364(e) PROTECTION

If any or all of the provisions of this Final Order are hereafter reversed, modified, vacated, or stayed, whether by order of this Court, any appellate court, or any other court of competent jurisdiction, such reversal, modification, vacation, or stay shall not affect:

(a) the validity, enforceability, or priority of any DIP Obligations incurred, or any DIP Liens or DIP Superpriority Claims granted, prior to the effective date of such reversal, modification, vacation, or stay; or

(b) the validity, enforceability, or priority of the DIP Liens or the DIP Superpriority Claims as to any obligations or amounts outstanding at the time of such reversal, modification, vacation, or stay.

Any DIP Obligations incurred by the DIP Lenders, and any DIP Liens or DIP Superpriority Claims granted, prior to the effective date of any reversal, modification, vacation, or stay of this Final Order shall be governed in all respects by the original provisions of this Final Order, and the DIP Agent and the DIP Lenders shall be entitled to all of the rights, remedies, privileges, and protections granted under this Final Order and Section 364(e) of the Bankruptcy Code with respect thereto.

XIX. NO WAIVER OF RIGHTS OF PREPETITION SECURED PARTIES

Except as expressly set forth in this Final Order, nothing herein shall be deemed a waiver, release, or relinquishment of any rights, remedies, claims, or defenses of the Prepetition Secured Parties, whether arising under the Bankruptcy Code, applicable non-bankruptcy law, or any agreement or instrument, including, without limitation:

(a) any right to object to the Debtors' use of cash collateral, to seek additional or modified adequate protection, or to seek relief from the automatic stay under Section 362 of the Bankruptcy Code;

(b) any right to challenge the priming of their liens or the sufficiency of the adequate protection provided herein;

(c) any right to file, assert, or pursue any claim, proof of claim, motion, objection, or other pleading in these Chapter 11 cases or any related proceeding; and

(d) any right to credit bid their claims pursuant to Section 363(k) of the Bankruptcy Code in connection with any sale of the Debtors' assets.

XX. EFFECTIVENESS. This Final Order shall be effective immediately upon its entry, and any stay of this Final Order, whether under Bankruptcy Rule 6004(h), Bankruptcy Rule 7062, Rule 62 of the Federal Rules of Civil Procedure, or otherwise, is hereby waived. The requirement of Bankruptcy Rule 4001(c)(2) has been satisfied. No further order of this Court shall be required for this Final Order to become effective.

XXI. RETENTION OF JURISDICTION

This Court retains exclusive jurisdiction over all matters arising from or related to the interpretation, implementation, enforcement, and administration of this Final Order, the DIP Credit Agreement, and the other DIP Documents, including, without limitation, any dispute between or among the Debtors, the DIP Agent, the DIP Lenders, the Prepetition Secured Parties, or any other party in inte

UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION
¹ The Debtors in these Chapter 11 cases, along with the last four digits of each Debtor's federal tax identification number, are: Crestline Packaging Solutions LLC (2094) and CPS Holdings Inc. (1657). The location of the Debtors' corporate headquarters is 4710 Industrial Corridor Drive, Akron, OH 44308.
FINAL ORDER (I) AUTHORIZING THE DEBTORS TO OBTAIN POSTPETITION FINANCING PURSUANT TO 11 U.S.C. §§ 105, 361, 362, 363, 364(c)(1), 364(c)(2), 364(c)(3), AND 364(d)(1), (II) GRANTING LIENS AND SUPERPRIORITY ADMINISTRATIVE EXPENSE STATUS, (III) AUTHORIZING THE USE OF CASH COLLATERAL, (IV) GRANTING ADEQUATE PROTECTION TO PREPETITION SECURED PARTIES, AND (V) GRANTING RELATED RELIEF
Upon the motion (the "DIP Motion") of the above-captioned debtors and debtors in possession (collectively, the "Debtors") for entry of a final order pursuant to Sections 105, 361, 362, 363, 364(c)(1), 364(c)(2), 364(c)(3), and 364(d)(1) of Title 11 of the United States Code, 11 U.S.C. §§ 101–1532 (the "Bankruptcy Code"), and Rules 2002, 4001, 6004, and 9014 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), and the Local Bankruptcy Rules for the Northern District of Ohio (the "Local Rules"), (i) authorizing the Debtors to obtain postpetition financing under a senior secured superpriority revolving credit facility in the aggregate principal amount of up to $30,000,000, (ii) granting liens and superpriority administrative expense status, (iii) authorizing the use of cash collateral, (iv) granting adequate protection to prepetition secured parties, and (v) granting related relief; and the Court having considered the DIP Motion, the declarations and evidence submitted in support thereof, the DIP Credit Agreement (as defined below), the arguments of counsel, and any objections and responses thereto; and the Court having made the findings of fact and conclusions of law set forth herein; and after due deliberation and for good cause shown;
RECITALS
The Court finds and determines the following:
A. Petition and Procedural Background.
On June 20, 2022 (the "Petition Date"), Crestline Packaging Solutions LLC ("CPS" or the "Borrower"), an Ohio limited liability company, employer identification number 31-1782094, with its principal place of business at 4710 Industrial Corridor Drive, Akron, OH 44308, and CPS Holdings Inc. ("CPS Holdings"), a Delaware corporation, employer identification number 82-3491657, with its registered agent located at 1209 Orange Street, Wilmington, DE 19801 (c/o National Corporate Services, Inc.) (CPS and CPS Holdings, collectively, the "Debtors"), each filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Northern District of Ohio, Eastern Division (this "Court"). 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. No trustee, examiner, or official committee of unsecured creditors has been appointed in these Chapter 11 cases as of the date hereof. The Chapter 11 cases are jointly administered for procedural purposes under Case No. 22-51247 pursuant to the order of this Court entered on June 21, 2022 (Dkt. No. 8).
B. The DIP Motion.
On the Petition Date, the Debtors filed the DIP Motion (Dkt. No. 14), seeking authority to enter into a senior secured superpriority revolving credit facility (the "DIP Facility") with Ridgeline National Bank, N.A. ("Ridgeline"), a national banking association with its principal office located at 200 Public Square, Cleveland, OH 44114, in its capacity as administrative agent and collateral agent (in such capacity, the "DIP Agent"), and certain consenting first lien lenders party thereto from time to time (collectively, the "DIP Lenders" and, together with the DIP Agent, the "DIP Secured Parties"). The DIP Motion was supported by, among other things, the Declaration of Dana Kowalski, Chief Financial Officer of the Debtors, and the Declaration of Matthew Hollander of Aldersgate Advisory Group LLC, the Debtors' proposed financial advisor. The DIP Motion further sought authorization for the Debtors to use cash collateral and to grant adequate protection to the prepetition secured parties.
C. Interim DIP Order.
On June 24, 2022, following an interim hearing at which all parties in interest were afforded an opportunity to appear and be heard, this Court entered the Interim Order (I) Authorizing the Debtors to Obtain Postpetition Financing, (II) Granting Liens and Superpriority Administrative Expense Status, (III) Authorizing the Use of Cash Collateral, (IV) Granting Adequate Protection to Prepetition Secured Parties, and (V) Granting Related Relief (Dkt. No. 47) (the "Interim DIP Order"), authorizing the Debtors to borrow under the DIP Facility on an interim basis and granting certain related relief, pending the final hearing on the DIP Motion.
A final hearing on the DIP Motion (the "Final Hearing") was duly noticed and held on July 18, 2022, at which all parties in interest were afforded the opportunity to appear, be heard, and present evidence. Proper and adequate notice of the DIP Motion and the Final Hearing was given to: (i) the Office of the United States Trustee for Region 9 (Howard M. Metzenbaum U.S. Courthouse, 201 Superior Avenue, Cleveland, OH 44114); (ii) Hargrove, Mitchell & Saunders LLP, counsel to the Ad Hoc Group of First Lien Lenders (51 West 52nd Street, New York, NY 10019; lead partner Victoria Kline); (iii) Pemberton & Locke LLP, counsel to the Ad Hoc Group of Second Lien Noteholders (1 Liberty Plaza, New York, NY 10006; lead partner Raymond Delvecchio); (iv) Continental Fiduciary Trust Company, as Indenture Trustee under the Second Lien Notes Indenture (as defined below) (101 Barclay Street, New York, NY 10286); (v) all parties who have filed a request for notice in these Chapter 11 cases pursuant to Bankruptcy Rule 2002; and (vi) all other parties required to receive notice under the Bankruptcy Rules and the Local Rules.
D. Prepetition Capital Structure.
The Court has been informed of and takes judicial notice of the Debtors' prepetition capital structure, which consists of the following:
(i) First Lien Credit Agreement. That certain Credit Agreement, dated as of October 13, 2017 (as amended, restated, supplemented, or otherwise modified from time to time prior to the Petition Date, the "First Lien Credit Agreement"), among CPS, as borrower, CPS Holdings, as guarantor, Ridgeline National Bank, N.A., as administrative agent and collateral agent (in such capacity, the "Prepetition First Lien Agent"), and the lenders party thereto from time to time (collectively, the "First Lien Lenders" and, together with the Prepetition First Lien Agent, the "First Lien Secured Parties"). The First Lien Credit Agreement provides for:
(a) a revolving credit facility with a maximum commitment of $40,000,000 (the "First Lien Revolving Facility"), of which $32,600,000 was drawn and outstanding as of the Petition Date, bearing interest at the Secured Overnight Financing Rate ("SOFR") plus 375 basis points per annum, with a stated maturity date of October 13, 2022; and
(b) a term loan facility with an original principal amount of $175,000,000 (the "First Lien Term Loan"), of which $158,700,000 was outstanding as of the Petition Date, bearing interest at SOFR plus 425 basis points per annum, with a stated maturity date of October 13, 2024.
The total amount of First Lien Secured Claims outstanding as of the Petition Date was approximately $191,300,000 ($32,600,000 under the First Lien Revolving Facility plus $158,700,000 under the First Lien Term Loan), exclusive of accrued and unpaid interest, fees, costs, and other amounts owing thereunder (collectively, the "Prepetition First Lien Obligations"). The obligations under the First Lien Credit Agreement are secured by first-priority liens on and security interests in substantially all assets of the Debtors (collectively, the "Prepetition Collateral"), pursuant to that certain Pledge and Security Agreement and related collateral documents, each dated as of October 13, 2017.
(ii) Second Lien Notes Indenture. That certain Indenture, dated as of October 13, 2017 (as amended, restated, supplemented, or otherwise modified from time to time prior to the Petition Date, the "Second Lien Notes Indenture"), among CPS, as issuer, CPS Holdings, as guarantor, and Continental Fiduciary Trust Company, as trustee and collateral agent (in such capacity, the "Prepetition Second Lien Trustee"), providing for the issuance of 9.75% Senior Secured Second Lien Notes due 2025 (CUSIP 22761TAA3) (the "Second Lien Notes") in an original aggregate principal amount of $60,000,000, of which $56,000,000 in aggregate principal amount was outstanding as of the Petition Date (reflecting $4,000,000 in open-market repurchases completed in 2019). As of the Petition Date, approximately $3,900,000 in interest had accrued but remained unpaid, resulting in total Second Lien Secured Claims of approximately $59,900,000 (collectively, the "Prepetition Second Lien Obligations" and, together with the Prepetition First Lien Obligations, the "Prepetition Secured Obligations"). The Second Lien Notes are secured by second-priority liens on and security interests in the Prepetition Collateral, subordinate and junior to the liens securing the First Lien Credit Agreement, pursuant to the terms of the Intercreditor Agreement (as defined below). The holders of the Second Lien Notes and the Prepetition Second Lien Trustee are referred to collectively as the "Second Lien Secured Parties."
The total funded indebtedness of the Debtors as of the Petition Date was approximately $247,300,000. The holders of the First Lien Secured Claims and the Second Lien Secured Claims are referred to collectively herein as the "Prepetition Secured Parties."
E. Events Leading to the Filing.
The Debtors' need for Chapter 11 relief arose from, among other factors, a sustained decline in operating performance caused by significant increases in raw material costs (particularly petrochemical-based resins), supply chain disruptions, and the loss of certain customer contracts. In the first quarter of 2022, CPS breached the maximum leverage ratio financial covenant set forth in Section 7.11 of the First Lien Credit Agreement, which required Total Net Debt to EBITDA of no greater than 5.75 to 1.00. As of the last day of the fiscal quarter ended March 31, 2022, the Debtors' actual leverage ratio was approximately 8.50x ($247,300,000 in Total Net Debt divided by trailing twelve-month EBITDA of $29,100,000), exceeding the covenant threshold by 2.75x, representing a breach of approximately 47.8%.
On April 22, 2022, Ridgeline, as Prepetition First Lien Agent, delivered a Notice of Default (the "Notice of Default") to the Debtors pursuant to Section 8.01 of the First Lien Credit Agreement. The delivery of the Notice of Default triggered a cross-default under Section 6.01(e) of the Second Lien Notes Indenture. On May 18, 2022, the Debtors, Ridgeline, and the requisite lenders under the First Lien Credit Agreement entered into a Forbearance Agreement (the "Forbearance Agreement"), pursuant to which the First Lien Lenders agreed to forbear from exercising remedies for a period of forty-five (45) days (through July 2, 2022), which forbearance period was subsequently extended to July 15, 2022 by amendment dated June 29, 2022.
On July 8, 2022, the Debtors, CPS Holdings, Thornfield Capital Partners LP (the Debtors' equity sponsor, with offices at 590 Lexington Avenue, Suite 3200, New York, NY 10022), the Ad Hoc Group of First Lien Lenders, and the Ad Hoc Group of Second Lien Noteholders executed a Restructuring Support Agreement (the "RSA") setting forth the terms of a comprehensive restructuring of the Debtors' balance sheet to be effectuated through a prearranged plan of reorganization.
F. Need for DIP Financing.
The Debtors have demonstrated an immediate and critical need for postpetition financing to fund their ongoing operations during the pendency of these Chapter 11 cases. The Debtors operate four manufacturing facilities located in Akron, Ohio; Evansville, Indiana; Baton Rouge, Louisiana; and Ravenna, Ohio, and maintain a workforce of approximately 1,420 employees. Without access to the DIP Facility, the Debtors would be unable to fund payroll, maintain inventory levels, meet obligations to critical trade vendors and suppliers, and continue manufacturing operations necessary to preserve the going-concern value of their businesses for the benefit of all stakeholders. The Debtors reported revenue of $312,600,000 for fiscal year 2021 and EBITDA of $38,400,000 for the same period. Trailing twelve-month EBITDA as of the first quarter of 2022 declined to $29,100,000, reflecting an approximate 18% decline in revenue from fiscal year 2020 to fiscal year 2021 attributable primarily to resin cost increases and supply chain disruption. Access to the DIP Facility is essential to stabilize operations, maintain customer and vendor relationships, and fund the administrative costs of these Chapter 11 cases.
G. Good Cause and Findings.
The Court has reviewed the DIP Motion, the DIP Credit Agreement dated as of June 24, 2022, by and among CPS, as borrower, CPS Holdings, as guarantor, Ridgeline National Bank, N.A., as DIP Agent, and the DIP Lenders party thereto (the "DIP Credit Agreement"), the declarations filed in support of the DIP Motion (including the Declaration of Dana Kowalski, Chief Financial Officer of the Debtors), the exhibits attached thereto, the evidence adduced and arguments of counsel presented at both the interim hearing on June 24, 2022 and the Final Hearing on July 18, 2022, and all objections, if any, filed in response to the DIP Motion and the responses thereto. Based upon the foregoing, and after consideration of the totality of the circumstances, the Court finds and concludes that: (i) the terms of the DIP Facility are fair and reasonable; (ii) the DIP Facility was negotiated in good faith and at arm's length among the Debtors, the DIP Agent, and the DIP Lenders; (iii) the DIP Facility reflects the Debtors' exercise of prudent business judgment; and (iv) the Debtors were unable to obtain unsecured credit allowable as an administrative expense under Section 503(b)(1) of the Bankruptcy Code, or credit secured solely by a lien on property of the estate that is not otherwise subject to a lien, or credit secured by a junior lien on property of the estate that is subject to a lien, or credit secured by a senior or equal lien on property of the estate that is subject to a lien, on terms more favorable than the terms of the DIP Facility.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Based on the entire record before the Court, including the DIP Motion, the declarations and exhibits in support thereof, the arguments of counsel, the evidence presented at the interim hearing and the Final Hearing, and the full record in these Chapter 11 cases, the Court hereby makes the following findings of fact and conclusions of law:
1. Jurisdiction and Venue. This Court has jurisdiction over these Chapter 11 cases and the DIP Motion pursuant to 28 U.S.C. §§ 157 and 1334 and the General Order of Reference entered in this district. Venue of these Chapter 11 cases and the DIP Motion is proper in this district pursuant to 28 U.S.C. §§ 1408 and 1409. This matter constitutes a core proceeding within the meaning of 28 U.S.C. § 157(b)(2), and the Court has the constitutional authority to enter a final order with respect thereto. The Debtors have consented to the entry of a final order by this Court.
2. Notice. Adequate and sufficient notice of the DIP Motion, the Interim DIP Order, and the Final Hearing was provided to all parties required to receive notice, including, without limitation: (a) the Office of the United States Trustee for Region 9 (Howard M. Metzenbaum U.S. Courthouse, 201 Superior Avenue, Cleveland, OH 44114); (b) Hargrove, Mitchell & Saunders LLP, as counsel to the Ad Hoc Group of First Lien Lenders (51 West 52nd Street, New York, NY 10019); (c) Pemberton & Locke LLP, as counsel to the Ad Hoc Group of Second Lien Noteholders (1 Liberty Plaza, New York, NY 10006); (d) Continental Fiduciary Trust Company, as Indenture Trustee (101 Barclay Street, New York, NY 10286); and (e) all parties that have filed requests for notice in these Chapter 11 cases pursuant to Bankruptcy Rule 2002. No further notice of the DIP Motion or the Final Hearing is required. The notice given was sufficient to satisfy the requirements of the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules.
3. Good Cause. Good cause has been shown for entry of this Final Order pursuant to Sections 105, 361, 362, 363, and 364 of the Bankruptcy Code. Entry of this Final Order is in the best interests of the Debtors' estates, their creditors, and all parties in interest.
4. Business Justification and Necessity. The Debtors have an immediate and critical need for the DIP Facility in order to, among other things: (a) fund ongoing operations at their four manufacturing facilities; (b) meet payroll obligations for approximately 1,420 employees; (c) maintain relationships with critical vendors and suppliers, including Northstar Polymers Inc. and other key raw material providers; (d) preserve the going-concern value of the Debtors' businesses and assets; (e) fund the costs of administration of these Chapter 11 cases; and (f) pursue a successful reorganization for the benefit of all stakeholders. The Debtors have demonstrated that, without the DIP Facility, they would suffer immediate and irreparable harm, including the potential loss of key customer and vendor relationships, disruption to manufacturing operations, and the erosion of enterprise value. The DIP Facility is essential to the Debtors' ability to operate as going concerns during these Chapter 11 cases.
5. No Credit Available on Better Terms. The Debtors have been unable to obtain sufficient postpetition financing on any basis other than the terms and conditions set forth in the DIP Credit Agreement and this Final Order. The Debtors have established, and the Court finds, that credit was not available to the Debtors on an unsecured basis under Section 503(b)(1) of the Bankruptcy Code, or on a secured basis pursuant to Section 364(c) or (d) of the Bankruptcy Code, on terms more favorable than those provided under the DIP Facility. The DIP Facility represents the best available financing for the Debtors under the circumstances.
6. Good Faith — Section 364(e). The DIP Agent and the DIP Lenders have extended credit under the DIP Facility in good faith within the meaning of Section 364(e) of the Bankruptcy Code, and the DIP Agent and the DIP Lenders are entitled to the full protections afforded by Section 364(e) of the Bankruptcy Code, including protection against reversal or modification on appeal. The terms and conditions of the DIP Facility were the product of good faith, arm's-length negotiations among the Debtors, the DIP Agent, and the DIP Lenders. Neither the DIP Agent nor any DIP Lender has engaged in any inequitable conduct in connection with the negotiation, documentation, or extension of credit under the DIP Facility.
7. Adequate Protection. The Prepetition Secured Parties are entitled to adequate protection of their interests in the Prepetition Collateral pursuant to Sections 361, 362, 363, and 364 of the Bankruptcy Code to the extent of any diminution in the value of such interests resulting from, among other things: (a) the Debtors' use, sale, or lease of Prepetition Collateral (including cash collateral); (b) the priming of the Prepetition Secured Parties' liens pursuant to Section 364(d)(1) of the Bankruptcy Code; and (c) the imposition of the automatic stay under Section 362 of the Bankruptcy Code. The adequate protection provided to the Prepetition Secured Parties as set forth in this Final Order is sufficient to protect the Prepetition Secured Parties' interests in the Prepetition Collateral.
ORDERING PROVISIONS
Based upon the foregoing Recitals and Findings of Fact and Conclusions of Law, each of which is incorporated herein by reference, and for good cause shown, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as follows:
I. AUTHORIZATION OF DIP FACILITY
A. Approval of DIP Credit Agreement. The DIP Motion is hereby GRANTED on a final basis. The Debtors are authorized to borrow under the DIP Facility, on the terms and conditions set forth in the DIP Credit Agreement dated as of June 24, 2022, up to an aggregate principal amount of Thirty Million Dollars ($30,000,000) (the "DIP Facility Amount"), in the form of a senior secured superpriority revolving credit facility. All terms and conditions of the DIP Credit Agreement, a copy of which is attached hereto as Exhibit A and incorporated herein by reference, are hereby approved in their entirety.
B. Material Terms of the DIP Facility. The material terms of the DIP Facility are as follows:
(a) DIP Agent: Ridgeline National Bank, N.A., 200 Public Square, Cleveland, OH 44114.
(b) DIP Lenders: The consenting first lien lenders party to the DIP Credit Agreement from time to time.
(c) Facility Type: Senior secured superpriority revolving credit facility.
(d) Maximum Commitment: $30,000,000.
(e) Interest Rate: SOFR plus 500 basis points per annum, calculated on the basis of actual days elapsed and a 360-day year, payable monthly in arrears on the first business day of each calendar month.
(f) Default Interest Rate: Upon the occurrence and during the continuance of an Event of Default (as defined in the DIP Credit Agreement), interest shall accrue at an additional 200 basis points per annum above the applicable interest rate set forth in clause (e) above.
(g) Commitment Fee: 1.50% of the DIP Facility Amount (i.e., $450,000), fully earned and payable on the closing date of the DIP Facility.
(h) Closing Fee: 2.00% of the DIP Facility Amount (i.e., $600,000), fully earned and payable on the closing date of the DIP Facility.
(i) Maturity Date: The earlier of (x) 120 days after the Petition Date (i.e., October 18, 2022) or (y) the effective date of the Debtors' plan of reorganization (the "Maturity Date").
(j) DIP Budget: The Debtors shall comply with a 13-week rolling cash flow budget (the "DIP Budget"), a copy of the initial DIP Budget being attached hereto as Exhibit B, with permitted aggregate disbursement variances of plus or minus fifteen percent (±15%), tested on a bi-weekly basis as set forth in the DIP Credit Agreement. The DIP Budget shall be updated and delivered to the DIP Agent every two weeks, or more frequently as reasonably requested by the DIP Agent.
C. Authorization to Execute Documents. The Debtors are hereby authorized and empowered to execute, deliver, and perform under the DIP Credit Agreement and all related documents, instruments, agreements, certificates, and other ancillary materials (collectively, the "DIP Documents") as are necessary or appropriate to effectuate the DIP Facility and the transactions contemplated thereby. The Debtors' officers, managers, and authorized representatives are authorized to take all actions and execute all documents as may be reasonably necessary to give effect to the provisions of this Final Order and the DIP Documents.
II. DIP LIENS
A. Grant of Liens — Section 364(c)(2) and 364(c)(3). As security for the prompt and complete payment and performance of all obligations arising under or in connection with the DIP Credit Agreement, this Final Order, and the other DIP Documents, whether now existing or hereafter arising (collectively, the "DIP Obligations"), the DIP Agent is hereby granted, effective as of the Petition Date, for the benefit of the DIP Agent and the DIP Lenders, valid, binding, continuing, enforceable, fully perfected, first-priority liens on and security interests in (collectively, the "DIP Liens") the following property:
(i) Pursuant to Section 364(c)(2) of the Bankruptcy Code, a first-priority lien on all presently owned or hereafter acquired assets of the Debtors and their estates that are not otherwise subject to a valid, perfected, and non-avoidable lien in existence as of the Petition Date (collectively, "Unencumbered Property"), including, without limitation, all real property, personal property, fixtures, accounts, inventory, equipment, general intangibles, intellectual property, contract rights, causes of action (other than avoidance actions or proceeds thereof as set forth below), and all proceeds and products thereof.
(ii) Pursuant to Section 364(c)(3) of the Bankruptcy Code, a junior lien on all assets of the Debtors and their estates that are subject to valid, perfected, and non-avoidable liens in existence as of the Petition Date or to Permitted Prior Liens (as defined in Section VIII of this Final Order), which junior lien shall be subordinate only to such prepetition liens and to the Carve-Out (as defined in Section IV of this Final Order).
B. Priming Liens — Section 364(d)(1). Pursuant to Section 364(d)(1) of the Bankruptcy Code, the DIP Agent is hereby granted, effective as of the Petition Date, for the benefit of the DIP Agent and the DIP Lenders, a first-priority senior priming lien on all Prepetition Collateral (the "DIP Priming Liens"), which priming lien shall be senior in priority to all existing liens on such Prepetition Collateral, including, without limitation, the liens securing the Prepetition First Lien Obligations under the First Lien Credit Agreement and the Prepetition Second Lien Obligations under the Second Lien Notes Indenture, subject only to: (x) the Carve-Out and (y) Permitted Prior Liens. The Prepetition Secured Parties are adequately protected as set forth in Section V of this Final Order, and such adequate protection is sufficient, pursuant to Section 364(d)(1)(B) of the Bankruptcy Code, to support the grant of the DIP Priming Liens.
C. Perfection. The DIP Liens (including the DIP Priming Liens) shall be deemed automatically and fully perfected upon entry of this Final Order without the necessity of the DIP Agent or any DIP Lender filing financing statements under the Uniform Commercial Code, mortgages, deeds of trust, notices, or other documents in any jurisdiction, or taking any other action to perfect such liens and security interests, and no such filing or action shall be necessary to create or perfect any such lien or security interest; provided, however, that the DIP Agent may, in its sole discretion, file financing statements, mortgages, deeds of trust, or other documents or instruments, or take any other action, to evidence or further perfect the DIP Liens, and the Debtors and their officers, managers, and authorized representatives shall cooperate with and execute any such documents or instruments as may be reasonably requested by the DIP Agent. All such filings, if any, shall be deemed to have been filed or recorded at the time and on the date of the entry of this Final Order.
D. DIP Collateral. The property of the Debtors' estates subject to the DIP Liens and the DIP Priming Liens is referred to herein collectively as the "DIP Collateral." The DIP Collateral shall include all of the Debtors' right, title, and interest in and to all assets and property, whether now owned or hereafter acquired, real or personal, tangible or intangible, and all proceeds and products thereof, excluding only the proceeds of avoidance actions arising under Chapter 5 of the Bankruptcy Code (except to the extent such exclusion is limited by the DIP Credit Agreement).
III. SUPERPRIORITY ADMINISTRATIVE EXPENSE CLAIMS
A. Section 364(c)(1) Superpriority. Pursuant to Section 364(c)(1) of the Bankruptcy Code, all DIP Obligations shall constitute allowed superpriority administrative expense claims against each of the Debtors and their respective estates (the "DIP Superpriority Claims"), with priority in payment over any and all administrative expense claims, unsecured claims, and all other claims against the Debtors or their estates now existing or hereafter arising, of any kind or nature whatsoever, including, without limitation, administrative expenses of the kind specified in Sections 503(b) and 507(b) of the Bankruptcy Code (whether or not such expenses or claims have been allowed), and all other claims arising under or pursuant to Sections 105, 326, 328, 330, 331, 503(b), 506(c) (subject to Section XIII of this Final Order), 507(a), 507(b), 546(c), 726, 1113, or 1114 of the Bankruptcy Code, in each case subject only to the Carve-Out. The DIP Superpriority Claims shall be payable from and have recourse to all of the property of the Debtors and their estates, and shall not be subordinated to, or pari passu with, any other claims in these Chapter 11 cases.
IV. CARVE-OUT.  A. Definition. As used in this Final Order, the term "Carve-Out" shall mean the sum of the following amounts:
(i) all unpaid fees of the Clerk of the Bankruptcy Court and the United States Trustee pursuant to 28 U.S.C. § 1930(a)(6), without regard to whether a Carve-Out Trigger Notice (as defined below) has been delivered;
(ii) all reasonable and documented fees and expenses incurred by professionals retained by the Debtors pursuant to Sections 327 or 328 of the Bankruptcy Code (the "Debtor Professionals"), including Calderwood & Harkness LLP (restructuring counsel), Kellner & Hartwick LLP (local counsel), Aldersgate Advisory Group LLC (financial advisor), Dralvecen Reyes Linley CPAs LLP & Associates LLP (tax advisor), and Pinnacle Claims Administration LLC (claims and noticing agent), and all reasonable and documented fees and expenses incurred by professionals retained by any statutory committee of unsecured creditors appointed in these Chapter 11 cases (the "Committee Professionals" and, together with the Debtor Professionals, the "Estate Professionals"), in each case to the extent allowed by the Court, through and including the date that is five (5) business days after the delivery by the DIP Agent of a Carve-Out Trigger Notice; plus
(iii) following the date of delivery of a Carve-Out Trigger Notice, all reasonable and documented professional fees and expenses incurred by the Estate Professionals in an aggregate amount not to exceed One Million Five Hundred Thousand Dollars ($1,500,000) (the "Post-Trigger Carve-Out Cap").
For the avoidance of doubt, the Carve-Out shall be senior to the DIP Liens, the DIP Superpriority Claims, and any and all liens and claims granted to the Prepetition Secured Parties pursuant to this Final Order.
B. Carve-Out Trigger Notice. The DIP Agent may deliver a written notice (the "Carve-Out Trigger Notice") to the Debtors and their counsel (Calderwood & Harkness LLP and Kellner & Hartwick LLP) upon the occurrence and during the continuance of an Event of Default under the DIP Credit Agreement. Delivery of a Carve-Out Trigger Notice shall commence the running of the five (5) business day period described in clause (ii) of Section IV.A above and shall trigger the Post-Trigger Carve-Out Cap described in clause (iii) of Section IV.A above. Nothing in this Final Order shall be construed to impair or limit the ability of any party to object to the reasonableness of any fees and expenses sought by any Estate Professional.
V. ADEQUATE PROTECTION FOR PREPETITION SECURED PARTIES
As adequate protection of the interests of the Prepetition Secured Parties in the Prepetition Collateral, and pursuant to Sections 361, 362, 363(e), and 364(d)(1) of the Bankruptcy Code, the following adequate protection is hereby granted:
A. Adequate Protection for First Lien Secured Parties.
The holders of claims under the First Lien Credit Agreement (the "First Lien Secured Parties"), including the Prepetition First Lien Agent, in their capacity as holders of Prepetition First Lien Obligations totaling approximately $191,300,000 in aggregate principal amount outstanding as of the Petition Date (exclusive of accrued and unpaid interest, fees, costs, and other amounts), shall receive the following adequate protection, to the extent of any diminution in the value of their interests in the Prepetition Collateral, from and after the Petition Date:
1. Adequate Protection Liens. The First Lien Secured Parties are hereby granted, pursuant to Sections 361(2) and 363(e) of the Bankruptcy Code, valid, binding, continuing, enforceable, fully perfected replacement liens on and security interests in (the "First Lien Adequate Protection Liens") all postpetition assets of the Debtors and their estates, including all DIP Collateral and all proceeds and products thereof, whether now owned or hereafter acquired (excluding the proceeds of avoidance actions arising under Chapter 5 of the Bankruptcy Code, except as otherwise provided in the DIP Credit Agreement). The First Lien Adequate Protection Liens shall be junior only to: (a) the DIP Liens (including the DIP Priming Liens); (b) the Carve-Out; and (c) Permitted Prior Liens. The First Lien Adequate Protection Liens shall be deemed automatically perfected without the necessity of any further action by the First Lien Secured Parties.
2. Adequate Protection Superpriority Claims. The First Lien Secured Parties are hereby granted allowed superpriority administrative expense claims under Section 507(b) of the Bankruptcy Code (the "First Lien Adequate Protection Superpriority Claims"), which claims shall be junior to the DIP Superpriority Claims and the Carve-Out, but shall be senior to all other administrative expense claims and priority claims of any kind or nature, including claims arising under Sections 503(b) and 507(a) of the Bankruptcy Code.
3. Adequate Protection Payments — Current Interest. As further adequate protection, the Debtors shall pay current interest to the First Lien Secured Parties (through the Prepetition First Lien Agent) at the applicable non-default contract rate under the First Lien Credit Agreement on the outstanding Prepetition First Lien Obligations, payable monthly in arrears on the first business day of each calendar month during the pendency of these Chapter 11 cases, commencing on August 1, 2022. Such adequate protection payments shall be made from the proceeds of the DIP Facility and cash collateral in accordance with the DIP Budget and shall not constitute a modification of the automatic stay or an admission as to the allowed amount of the Prepetition First Lien Obligations.
4. Payment of Fees and Expenses. As further adequate protection, the Debtors shall pay the reasonable and documented fees and expenses of Hargrove, Mitchell & Saunders LLP, as counsel to the Ad Hoc Group of First Lien Lenders (lead partner Victoria Kline; lead associate Thomas Frey; 51 West 52nd Street, New York, NY 10019), promptly upon presentation of invoices therefor, in accordance with the DIP Budget. Such payments shall be made without the necessity of filing fee applications with the Court, but shall be subject to Court review upon request by the Debtors, the U.S. Trustee, or any party in interest.
5. Reporting and Information Rights. As further adequate protection, the Debtors shall provide the First Lien Secured Parties (through the DIP Agent, in its dual capacity as DIP Agent and Prepetition First Lien Agent) with the following: (a) copies of the 13-week rolling DIP Budget, as updated and delivered to the DIP Agent on a bi-weekly basis; (b) bi-weekly variance reports showing actual results compared to the DIP Budget; (c) monthly unaudited financial statements of the Debtors, including a balance sheet, income statement, and cash flow statement, within thirty (30) days following the end of each calendar month; and (d) such other financial information as may be reasonably requested by the Prepetition First Lien Agent from time to time.
B. Adequate Protection for Second Lien Secured Parties.
The holders of claims under the Second Lien Notes Indenture (the "Second Lien Secured Parties"), including the Prepetition Second Lien Trustee, in their capacity as holders of Prepetition Second Lien Obligations totaling approximately $59,900,000 as of the Petition Date ($56,000,000 in aggregate principal amount outstanding plus $3,900,000 in accrued and unpaid interest), shall receive the following adequate protection, to the extent of any diminution in the value of their interests in the Prepetition Collateral, from and after the Petition Date:
1. Adequate Protection Liens. The Second Lien Secured Parties are hereby granted, pursuant to Sections 361(2) and 363(e) of the Bankruptcy Code, valid, binding, continuing, enforceable, fully perfected replacement liens on and security interests in (the "Second Lien Adequate Protection Liens") all postpetition assets of the Debtors and their estates, including all DIP Collateral and all proceeds and products thereof, whether now owned or hereafter acquired (excluding the proceeds of avoidance actions arising under Chapter 5 of the Bankruptcy Code, except as otherwise provided in the DIP Credit Agreement). The Second Lien Adequate Protection Liens shall be junior to: (a) the DIP Liens (including the DIP Priming Liens); (b) the Carve-Out; (c) Permitted Prior Liens; (d) the First Lien Adequate Protection Liens; and (e) the liens securing the Prepetition First Lien Obligations under the First Lien Credit Agreement. The Second Lien Adequate Protection Liens shall be deemed automatically perfected without the necessity of any further action by the Second Lien Secured Parties.
2. Adequate Protection Superpriority Claims. The Second Lien Secured Parties are hereby granted allowed superpriority administrative expense claims under Section 507(b) of the Bankruptcy Code (the "Second Lien Adequate Protection Superpriority Claims"), which claims shall be junior to the DIP Superpriority Claims, the Carve-Out, and the First Lien Adequate Protection Superpriority Claims, but shall be senior to all other administrative expense claims and priority claims (other than the DIP Superpriority Claims and the First Lien Adequate Protection Superpriority Claims).
3. Payment of Fees and Expenses. As further adequate protection, the Debtors shall pay the reasonable and documented fees and expenses of Pemberton & Locke LLP, as counsel to the Ad Hoc Group of Second Lien Noteholders (lead partner Raymond Delvecchio; lead associate Nia Patterson; 1 Liberty Plaza, New York, NY 10006), promptly upon presentation of invoices therefor, in accordance with the DIP Budget. Such payments shall be made without the necessity of filing fee applications with the Court, but shall be subject to Court review upon request by the Debtors, the U.S. Trustee, or any party in interest.
4. Reporting and Information Rights. As further adequate protection, the Second Lien Secured Parties (through Continental Fiduciary Trust Company, as Indenture Trustee, 101 Barclay Street, New York, NY 10286) shall receive copies of the same financial reporting provided to the First Lien Secured Parties pursuant to Section V.A.5 of this Final Order, subject to applicable confidentiality restrictions and the terms of any applicable non-disclosure agreement or confidentiality order entered in these cases.
VI. USE OF CASH COLLATERAL
A. Authorization. The Debtors are hereby authorized, pursuant to Section 363 of the Bankruptcy Code, to use cash collateral (as defined in Section 363(a) of the Bankruptcy Code) of the Prepetition Secured Parties in accordance with the DIP Budget and the terms and conditions of this Final Order and the DIP Credit Agreement. The authorization to use cash collateral granted herein is subject to the adequate protection provided to the Prepetition Secured Parties as set forth in Section V of this Final Order.
B. DIP Budget Compliance. The Debtors shall use proceeds of the DIP Facility and cash collateral solely in accordance with the DIP Budget, a copy of which is attached hereto as Exhibit B. The Debtors shall not permit aggregate disbursements for any bi-weekly testing period to exceed or fall below the amounts projected in the DIP Budget by more than fifteen percent (±15%) (the "Permitted Variance"). Budget compliance shall be tested on a bi-weekly basis, with variance reports delivered to the DIP Agent no later than the third business day following the end of each bi-weekly testing period. Any variance beyond the Permitted Variance threshold (a "Material Variance") shall constitute an Event of Default under the DIP Credit Agreement unless such Material Variance is waived in writing by the DIP Agent (acting at the direction of the Required DIP Lenders, as defined in the DIP Credit Agreement).
VII. EVENTS OF DEFAULT AND REMEDIES
A. Events of Default. The occurrence of any of the following events shall constitute an "Event of Default" for purposes of this Final Order and the DIP Credit Agreement, to the extent set forth and more fully described in the DIP Credit Agreement:
(i) failure by the Debtors to comply with the DIP Budget beyond the Permitted Variance;
(ii) failure by the Debtors to satisfy any milestone or deadline under the Restructuring Support Agreement dated July 8, 2022, including, without limitation: (a) filing a disclosure statement and obtaining approval thereof within forty-five (45) days of the Petition Date (i.e., by August 4, 2022); (b) obtaining an order confirming the Debtors' plan of reorganization within ninety (90) days of the Petition Date (i.e., by September 18, 2022); and (c) the occurrence of the effective date of the Debtors' plan of reorganization within fifteen (15) business days following entry of the confirmation order;
(iii) termination of the RSA for any reason;
(iv) conversion of any of the Debtors' Chapter 11 cases to a case under Chapter 7 of the Bankruptcy Code;
(v) appointment of a Chapter 11 trustee or an examiner with expanded powers in any of the Debtors' Chapter 11 cases;
(vi) entry of an order by any court of competent jurisdiction granting relief from the automatic stay under Section 362 of the Bankruptcy Code with respect to any material portion of the Debtors' assets (having a value in excess of $500,000 in the aggregate); and
(vii) any other Event of Default as set forth in the DIP Credit Agreement.
B. Remedies. Upon the occurrence and during the continuance of an Event of Default under the DIP Credit Agreement, and upon five (5) business days' prior written notice (the "Remedies Notice Period") delivered to: (a) the Debtors; (b) Calderwood & Harkness LLP (30 Rockefeller Plaza, New York, NY 10112 and 127 Public Square, Suite 4100, Cleveland, OH 44114); (c) Kellner & Hartwick LLP (600 Superior Avenue East, Suite 1800, Cleveland, OH 44114); (d) the Office of the United States Trustee for Region 9 (201 Superior Avenue, Cleveland, OH 44114); and (e) any official committee of unsecured creditors appointed in these Chapter 11 cases (through its counsel), the DIP Agent may exercise any or all of the following remedies:
(i) terminate all remaining commitments under the DIP Facility;
(ii) declare all DIP Obligations to be immediately due and payable in full;
(iii) exercise any and all rights and remedies available to the DIP Agent and the DIP Lenders with respect to the DIP Collateral under applicable law, the DIP Credit Agreement, and this Final Order, including the right to foreclose upon, sell, assign, or otherwise dispose of the DIP Collateral, subject to the Carve-Out; and
(iv) exercise any and all other rights and remedies available under the DIP Credit Agreement, this Final Order, or applicable law.
During the Remedies Notice Period, the Debtors and any other party in interest may seek an emergency hearing before this Court to contest the exercise of remedies by the DIP Agent, and the Court shall use reasonable efforts to schedule such hearing prior to the expiration of the Remedies Notice Period. The five-business-day Remedies Notice Period shall not apply to any action that would be taken solely in the Court or to any request for relief that may be made by motion or application to the Court.
VIII. PERMITTED PRIOR LIENS
As used in this Final Order, the term "Permitted Prior Liens" means those liens and encumbrances that are senior in priority to the prepetition liens of the First Lien Secured Parties and the Second Lien Secured Parties by operation of applicable non-bankruptcy law and that are not subject to avoidance under Chapter 5 of the Bankruptcy Code or other applicable law. Permitted Prior Liens include, without limitation, statutory liens (such as tax liens, mechanic's liens, materialmen's liens, and warehousemen's liens) that are valid, properly perfected, and unavoidable under applicable law as of the Petition Date. A schedule of known Permitted Prior Liens is attached hereto as Exhibit C.
IX. MODIFICATION OF AUTOMATIC STAY
A. Stay Relief. The automatic stay imposed under Section 362 of the Bankruptcy Code is hereby modified to the extent necessary to permit: (a) the DIP Agent and the DIP Lenders to exercise their rights and remedies under the DIP Credit Agreement and this Final Order upon the occurrence and during the continuance of an Event of Default, subject to the Remedies Notice Period and other notice provisions set forth in Section VII.B of this Final Order; and (b) the Debtors to grant the DIP Liens (including the DIP Priming Liens), provide the adequate protection contemplated herein, perform their obligations under the DIP Credit Agreement and the other DIP Documents, and take all actions authorized or contemplated by this Final Order. This modification of the automatic stay is necessary and appropriate to effectuate the terms of this Final Order and the DIP Facility.
B. No Waiver of Stay Otherwise. Except as expressly set forth in this Final Order, nothing herein shall be deemed to constitute a modification, waiver, or termination of the automatic stay imposed by Section 362 of the Bankruptcy Code with respect to any other party or any other action, and the automatic stay shall remain in full force and effect as to all parties and actions not expressly addressed herein.
X. WAIVER AND STIPULATIONS
A. Debtors' Stipulations. The Debtors hereby stipulate, acknowledge, and agree, for the benefit of the Prepetition Secured Parties and all parties in interest, as follows:
(i) The Prepetition First Lien Obligations under the First Lien Credit Agreement, in the aggregate principal amount of approximately $191,300,000 outstanding as of the Petition Date, together with all accrued and unpaid interest, fees, costs, and other amounts owing thereunder, constitute legal, valid, binding, and enforceable obligations of the Debtors, and are not subject to any defense, counterclaim, offset, recoupment, or avoidance.
(ii) The Prepetition Second Lien Obligations under the Second Lien Notes Indenture, in the aggregate amount of approximately $59,900,000 outstanding as of the Petition Date (inclusive of $56,000,000 in principal and $3,900,000 in accrued and unpaid interest), together with all other fees, costs, and amounts owing thereunder, constitute legal, valid, binding, and enforceable obligations of the Debtors, and are not subject to any defense, counterclaim, offset, recoupment, or avoidance.
(iii) The liens and security interests securing the Prepetition First Lien Obligations and the Prepetition Second Lien Obligations were validly granted, properly perfected, are non-avoidable, and are enforceable against the Debtors and their estates in accordance with their terms and applicable law.
(iv) The Debtors have no claims, counterclaims, causes of action, defenses, setoffs, recoupments, or offsets of any kind or nature, whether arising under the Bankruptcy Code or applicable non-bankruptcy law, against any of the Prepetition Secured Parties, the Prepetition First Lien Agent, the Prepetition Second Lien Trustee, or any of their respective agents, representatives, attorneys, advisors, or affiliates, in each case with respect to the Prepetition Secured Obligations, the Prepetition Collateral, or any actions taken or omitted to be taken by any such party in connection therewith.
B. Challenge Period. Notwithstanding the foregoing stipulations set forth in Section X.A of this Final Order, any party in interest with standing (including any official committee of unsecured creditors, if and when appointed, or the United States Trustee) shall have seventy-five (75) days from the entry of this Final Order (the "Investigation Period") to investigate and, if appropriate, commence an adversary proceeding or contested matter (a "Challenge Proceeding") to challenge, object to, or contest any of the findings, stipulations, or conclusions set forth in Section X.A of this Final Order, including, without limitation, the validity, extent, perfection, priority, or enforceability of the Prepetition Secured Obligations, the liens securing such obligations, or the absence of claims, counterclaims, or defenses against the Prepetition Secured Parties; provided, however, that in the case of any official committee of unsecured creditors appointed in these Chapter 11 cases, the Investigation Period shall expire on the later of (x) seventy-five (75) days from the entry of this Final Order or (y) seventy-five (75) days from the date of formation of such committee.
If no Challenge Proceeding is timely commenced within the applicable Investigation Period, the stipulations set forth in Section X.A of this Final Order shall be binding upon all parties in interest for all purposes in these Chapter 11 cases and any successor proceedings, and shall not be subject to further investigation, challenge, contest, or review by any party, and the Prepetition Secured Obligations and the liens securing such obligations shall be deemed to have been finally allowed and determined. The filing of a Challenge Proceeding within the Investigation Period shall not toll or extend the deadline as to any claims or issues not asserted in such Challenge Proceeding.
XI. INSURANCE PROVISIONS
Nothing in this Final Order shall impair, diminish, or otherwise modify the Debtors' directors' and officers' tail insurance policy issued by Apex Indemnity Insurance Company, Policy No. DOT-2022-CP-04871, providing aggregate coverage of Fifteen Million Dollars ($15,000,000), with a tail premium of One Million Two Hundred Thousand Dollars ($1,200,000). The proceeds of such directors' and officers' tail insurance policy shall not constitute DIP Collateral, Prepetition Collateral, or property of the Debtors' estates for purposes of this Final Order, and no lien granted hereunder shall attach to such proceeds.
XII. PROVISIONS REGARDING PROFESSIONAL FEES
Nothing in this Final Order shall prejudice, impair, or otherwise affect the right of the Debtors' professionals retained in these Chapter 11 cases, including Calderwood & Harkness LLP (estimated aggregate fees of approximately $4,200,000), Kellner & Hartwick LLP (estimated aggregate fees of approximately $380,000), Aldersgate Advisory Group LLC (estimated aggregate fees of approximately $4,025,000, comprising a completion fee of $3,500,000 and a monthly advisory fee of $175,000 per month), Dralvecen Reyes Linley CPAs LLP & Associates LLP (estimated aggregate fees of approximately $410,000), and Pinnacle Claims Administration LLC (estimated aggregate fees of approximately $285,000), to seek allowance and payment of their respective fees and expenses in accordance with Sections 327, 328, 330, and 331 of the Bankruptcy Code and the applicable orders of this Court approving the retention of such professionals. All such professional fees and expenses shall be subject to and entitled to the benefit of the Carve-Out as set forth in Section IV of this Final Order.
XIII. SECTION 506(c) WAIVER
Except to the extent of the Carve-Out, no costs or expenses of administration that have been or may be incurred in these Chapter 11 cases at any time shall be charged against or recovered from the DIP Collateral or the Prepetition Collateral pursuant to Section 506(c) of the Bankruptcy Code, or any similar principle of law or equity (including, without limitation, the "equities of the case" exception under Section 552(b) of the Bankruptcy Code or any theory of unjust enrichment), without the prior written consent of the DIP Agent (with respect to the DIP Collateral) or the applicable Prepetition Secured Party (with respect to the Prepetition Collateral). No such consent shall be implied from any action, inaction, or acquiescence by the DIP Agent or any Prepetition Secured Party.
XIV. SECTION 552(b) PROVISIONS
The Prepetition Secured Parties shall be entitled to the benefits of Section 552(b) of the Bankruptcy Code, and the liens and security interests of the Prepetition Secured Parties shall extend to all proceeds, products, offspring, rents, and profits of the Prepetition Collateral acquired, generated, or received by the Debtors after the Petition Date. The "equities of the case" exception under Section 552(b) of the Bankruptcy Code shall not apply to diminish or limit the liens, security interests, or claims of the Prepetition Secured Parties in any respect, and no party in interest shall seek to invoke or apply such exception.
XV. INTERCREDITOR PROVISIONS
The relative priorities, rights, and obligations as among the First Lien Secured Parties and the Second Lien Secured Parties shall continue to be governed by that certain Intercreditor Agreement, dated as of October 13, 2017 (the "Intercreditor Agreement"), by and between Ridgeline National Bank, N.A. (in its capacity as First Lien Agent) and Continental Fiduciary Trust Company (in its capacity as Second Lien Trustee), as such agreement may have been amended, supplemented, or otherwise modified from time to time prior to the Petition Date. Nothing in this Final Order shall alter, amend, modify, or otherwise affect the terms, provisions, or relative priorities established by the Intercreditor Agreement, except as expressly provided herein with respect to the adequate protection granted to the First Lien Secured Parties and the Second Lien Secured Parties, respectively, in Section V of this Final Order. To the extent of any conflict between the terms of this Final Order and the terms of the Intercreditor Agreement, the terms of this Final Order shall control.
XVI. NO MARSHALING
In no event shall the DIP Agent, the DIP Lenders, or the Prepetition Secured Parties be subject to the equitable doctrine of marshaling or any other similar doctrine with respect to the DIP Collateral, the Prepetition Collateral, or any other property of the Debtors or their estates. The DIP Agent, the DIP Lenders, and the Prepetition Secured Parties shall not be required to marshal any of their liens or claims, or any collateral securing such liens or claims, for the benefit of any other person or entity.
XVII. BINDING EFFECT AND SURVIVAL
The provisions of this Final Order, including, without limitation, the DIP Liens, the DIP Superpriority Claims, the Adequate Protection Liens, and the Adequate Protection Superpriority Claims, shall be binding upon the Debtors, their estates, the DIP Agent, the DIP Lenders, the Prepetition Secured Parties, all creditors and parties in interest, and their respective successors, assigns, heirs, executors, administrators, and representatives, and shall inure to the benefit of the foregoing parties and their respective successors and assigns. The DIP Liens, the DIP Superpriority Claims, the Adequate Protection Liens, and the Adequate Protection Superpriority Claims shall continue in full force and effect, and shall maintain their priority and validity as provided herein, notwithstanding:
(a) the entry of an order dismissing any or all of the Debtors' Chapter 11 cases under Section 1112 of the Bankruptcy Code or otherwise;
(b) the entry of an order converting any or all of the Debtors' Chapter 11 cases to cases under Chapter 7 of the Bankruptcy Code;
(c) the entry of an order appointing a trustee under Chapter 7 or Chapter 11 of the Bankruptcy Code, or appointing an examiner with expanded powers; or
(d) the entry of an order confirming a plan of reorganization in any of the Debtors' Chapter 11 cases (which plan shall provide for the indefeasible payment in full in cash of all DIP Obligations on or before the effective date thereof, unless otherwise agreed in writing by the DIP Agent).
In the event of a dismissal or conversion of any of these Chapter 11 cases, neither the DIP Liens, the DIP Superpriority Claims, nor any of the other rights and protections granted to the DIP Agent, the DIP Lenders, or the Prepetition Secured Parties pursuant to this Final Order shall be affected, diminished, or impaired in any way.
XVIII. SECTION 364(e) PROTECTION
If any or all of the provisions of this Final Order are hereafter reversed, modified, vacated, or stayed, whether by order of this Court, any appellate court, or any other court of competent jurisdiction, such reversal, modification, vacation, or stay shall not affect:
(a) the validity, enforceability, or priority of any DIP Obligations incurred, or any DIP Liens or DIP Superpriority Claims granted, prior to the effective date of such reversal, modification, vacation, or stay; or
(b) the validity, enforceability, or priority of the DIP Liens or the DIP Superpriority Claims as to any obligations or amounts outstanding at the time of such reversal, modification, vacation, or stay.
Any DIP Obligations incurred by the DIP Lenders, and any DIP Liens or DIP Superpriority Claims granted, prior to the effective date of any reversal, modification, vacation, or stay of this Final Order shall be governed in all respects by the original provisions of this Final Order, and the DIP Agent and the DIP Lenders shall be entitled to all of the rights, remedies, privileges, and protections granted under this Final Order and Section 364(e) of the Bankruptcy Code with respect thereto.
XIX. NO WAIVER OF RIGHTS OF PREPETITION SECURED PARTIES
Except as expressly set forth in this Final Order, nothing herein shall be deemed a waiver, release, or relinquishment of any rights, remedies, claims, or defenses of the Prepetition Secured Parties, whether arising under the Bankruptcy Code, applicable non-bankruptcy law, or any agreement or instrument, including, without limitation:
(a) any right to object to the Debtors' use of cash collateral, to seek additional or modified adequate protection, or to seek relief from the automatic stay under Section 362 of the Bankruptcy Code;
(b) any right to challenge the priming of their liens or the sufficiency of the adequate protection provided herein;
(c) any right to file, assert, or pursue any claim, proof of claim, motion, objection, or other pleading in these Chapter 11 cases or any related proceeding; and
(d) any right to credit bid their claims pursuant to Section 363(k) of the Bankruptcy Code in connection with any sale of the Debtors' assets.
XX. EFFECTIVENESS.  This Final Order shall be effective immediately upon its entry, and any stay of this Final Order, whether under Bankruptcy Rule 6004(h), Bankruptcy Rule 7062, Rule 62 of the Federal Rules of Civil Procedure, or otherwise, is hereby waived. The requirement of Bankruptcy Rule 4001(c)(2) has been satisfied. No further order of this Court shall be required for this Final Order to become effective.
XXI. RETENTION OF JURISDICTION
This Court retains exclusive jurisdiction over all matters arising from or related to the interpretation, implementation, enforcement, and administration of this Final Order, the DIP Credit Agreement, and the other DIP Documents, including, without limitation, any dispute between or among the Debtors, the DIP Agent, the DIP Lenders, the Prepetition Secured Parties, or any other party in inte