Case 17-19899-SLM
Doc 37
Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 1 of 107
Desc Main
UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW JERSEY Caption in Compliance with D.N.J. LBR 9004-1
LOWENSTEIN SANDLER LLP Kenneth A. Rosen, Esq. Jeffrey D. Prol, Esq. Nicole Fulfree, Esq. Michael Papandrea, Esq. 65 Livingston Avenue Roseland, New Jersey 07068 (973) 597-2500 (Telephone) (973) 597-2400 (Facsimile)
Order Filed on May 17, 2017 by Clerk, U.S. Bankruptcy Court District of New Jersey
Proposed Counsel to the Debtors and Debtors-in-Possession
In re:
Chapter 11
Mountain Creek Resort, Inc., et al.,1
Case No. 17-19899 (SLM)
Debtors.
(Joint Administration Requested)
INTERIM ORDER (I) AUTHORIZING THE USE OF CASH COLLATERAL, (II) GRANTING ADEQUATE PROTECTION, (III) AUTHORIZING THE DEBTORS TO OBTAIN POSTPETITION FINANCING, (IV) GRANTING LIENS AND SUPERPRIORITY CLAIMS TO THE DIP LENDER, (V) MODIFYING THE AUTOMATIC STAY, AND (VI) SCHEDULING A FINAL HEARING The relief set forth on the following pages, numbered two (2) through and including nineteen (19), is hereby ORDERED. DATED: May 17, 2017
1
The Debtors in these chapter 11 cases and the last four digits of each Debtor’s taxpayer identification number are as follows: Mountain Creek Resort, Inc. (4557), Mountain Creek Services Inc. (3228), Mountain Creek Management, LLC (1394), Mountain Creek Mountainslide, LLC (1545), Mountain Leasing LLC (6057), and Appalachian Liquors Corporation (9542).
31381/2 05/17/2017 47987935.8
Case 17-19899-SLM Page: Debtors: Case No.: Caption:
Doc 37
Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 2 of 107
Desc Main
2 Mountain Creek Resort, Inc., et al. 17-19899 (SLM) Interim Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Authorizing the Debtors to Obtain Postpetition Financing, (IV) Granting Liens and Superpriority Claims to The DIP Lender, (V) Modifying The Automatic Stay, and (VI) Scheduling a Final Hearing ______________________________________________________________________________ This matter is before the Court on the motion (the “Motion”)2 of the above captioned debtors and debtors-in-possession (collectively, the “Debtors” or the “Company”) for entry of an interim order (the “Interim DIP Order”), and a final order (the “Final DIP Order”), pursuant to sections 105(a), 361, 362, 363 and 364 of title 11 of the United States Code, 11 U.S.C. §§ 101, et. seq. (the “Bankruptcy Code”), (i) authorizing the Debtors’ continued use of cash collateral pursuant to section 363 of the Bankruptcy Code; (ii) granting adequate protection for such use of cash collateral pursuant to sections 361 and 363 of the Bankruptcy Code; (iii) authorizing the Debtors to obtain secured postpetition financing from MC DIP Funding LLC (the “DIP Lender” or “Lender”), consisting of a credit facility in the aggregate principal amount of up to $6.0 million (the “DIP Financing” or the “DIP Facility”) for the purpose of funding the Debtors’ general operating and working capital needs and the administration of the Debtors’ chapter 11 cases, in accordance with (a) that certain Debtor-in-Possession Credit and Security Agreement, (the “DIP Credit Agreement”), substantially in the form attached hereto as Exhibit A, between the Debtors and MC DIP Funding LLC and (b) the budget (“Budget”) attached hereto as Exhibit B; (iv) authorizing and approving the Debtors’ entry into the DIP Credit Agreement and any other documents, certificates or instruments ancillary thereto, and performance of such other acts as may be necessary or appropriate in connection therewith; (v) granting to the DIP Lender valid, fully perfected, and enforceable security interests and liens (collectively, the “DIP Liens”) in and upon the DIP Collateral (as defined in the DIP Credit Agreement) pursuant to sections 364(c)(2) and 364(d)(1) of the Bankruptcy Code; (vi) granting an allowed superpriority administrative expense claim (the “DIP Superpriority Claim”) to the
2
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Motion.
-2-
Case 17-19899-SLM
Doc 37
Page: Debtors: Case No.: Caption:
Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 3 of 107
Desc Main
3 Mountain Creek Resort, Inc., et al. 17-19899 (SLM) Interim Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Authorizing the Debtors to Obtain Postpetition Financing, (IV) Granting Liens and Superpriority Claims to The DIP Lender, (V) Modifying The Automatic Stay, and (VI) Scheduling a Final Hearing ______________________________________________________________________________ DIP Lender pursuant to section 364(c)(1) of the Bankruptcy Code; (vii) vacating and modifying the automatic stay to the extent necessary to effectuate the terms and provisions of the DIP Credit Agreement and the DIP Orders; and (viii) scheduling a hearing (the “Final Hearing”) pursuant to Rules 4001(b)(2) and (c)(2) of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) to consider entry of the Final DIP Order, authorizing and approving the DIP Financing and use of cash collateral on a final basis. The Court considered the Motion on an interim basis at a hearing held on May 17, 2017, and after due deliberation and good and sufficient cause appearing for the entry of the within order, IT IS HEREBY FOUND, DETERMINED, ORDERED, AND ADJUDGED, that:3 1.
The Motion is granted on an interim basis in accordance with the terms of this
Interim Order. Any objections to the Motion with respect to the entry of this Interim Order that have not been withdrawn, waived or settled, and all reservations of rights included therein, are hereby denied and overruled. 2.
The Court has jurisdiction over the Motion pursuant to 28 U.S.C. §§ 157 and
1334. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). Venue of the Debtors’ Chapter 11 Cases and the Motion is proper under 28 U.S.C. §§ 1408 and 1409. 3.
The statutory predicates for the relief sought in the Motion are Bankruptcy Code
§§ 105, 361, 362, 363, 364, Rule 4001 of the Federal Rules of Bankruptcy Procedures (the “Bankruptcy Rules”), and Rule 4001-3 of the Local Rules of the United States Bankruptcy Court for the District of New Jersey (the “Local Rules”).
3
The findings and conclusions set forth herein constitute this Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014. Findings of fact shall be construed as conclusions of law, and conclusions of law shall be construed as findings of fact, as appropriate.
-3-
Case 17-19899-SLM
Doc 37
Page: Debtors: Case No.: Caption:
Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 4 of 107
Desc Main
4 Mountain Creek Resort, Inc., et al. 17-19899 (SLM) Interim Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Authorizing the Debtors to Obtain Postpetition Financing, (IV) Granting Liens and Superpriority Claims to The DIP Lender, (V) Modifying The Automatic Stay, and (VI) Scheduling a Final Hearing ______________________________________________________________________________ 4.
Notice of the Motion for the preliminary hearing on the Debtors’ proposed
financing and use of cash collateral has been served in accordance with section 102(1) of the Bankruptcy Code and Bankruptcy Rule 4001(b), which notice is appropriate and sufficient for all purposes under the Bankruptcy Code and the applicable Bankruptcy Rules with respect to the relief requested. 5.
Without prejudice to the rights of any other party (but subject to the limitations
thereon contained in paragraph 28 below), the Debtors admit, stipulate, and agree (provided that no such stipulations or agreements shall limit, impair or modify in any way the rights, protections or remedies of the DIP Lender, including with respect to any default or Event of Default under any of the DIP Credit Documents, that: (i) A.
M&T Prepetition Senior Credit Documents
MCRI as borrower, and the other Debtors (other than Appalachian
Liquors), as guarantors, are parties to a loan agreement, promissory note, mortgage, security agreement and related documents dated June 4, 2015 pursuant to which M&T Bank (“M&T” or the “Prepetition Senior Lender”) extended a secured financing facility to MCRI in the original principal sum of $25 million (the “M&T Loan Facility”). The M&T Loan Facility is also guaranteed by other affiliated non-debtor entities and individuals. As of the Petition Date, approximately $22.7 million remains outstanding under the M&T Loan Facility (together with any amounts incurred or accrued, but unpaid prior to the Petition Date, the “First Lien Obligations”).
To secure the First Lien
Obligations, MCRI granted the Prepetition Senior Lender first-priority security interests in and liens on substantially all of its personal and real property (collectively, the
-4-
Case 17-19899-SLM
Doc 37
Page: Debtors: Case No.: Caption:
Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 5 of 107
Desc Main
5 Mountain Creek Resort, Inc., et al. 17-19899 (SLM) Interim Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Authorizing the Debtors to Obtain Postpetition Financing, (IV) Granting Liens and Superpriority Claims to The DIP Lender, (V) Modifying The Automatic Stay, and (VI) Scheduling a Final Hearing ______________________________________________________________________________ “Prepetition Collateral”), subject only to certain permitted encumbrances set forth in the M&T Loan Facility. B.
On September 20, 2010, M&T issued an irrevocable standby letter of
credit in favor of the Township of Vernon in the approximate amount of $1.97 million (the “Letter of Credit”) in connection with the October 24, 2005 sewer agreement (the “Sewer Agreement”) between MCRI and the Township of Vernon. Pursuant to the reimbursement agreement between MCRI and M&T, MCRI granted security interests in the Prepetition Collateral to secure any amounts drawn on the Letter of Credit. MCRI, as borrower, the other Debtors (other than Appalachian Liquors), as guarantors, and M&T, as lender, are parties to a certain VISA Charge Card Agreement for Commercial Card, Corporate Card, and Purchasing Card Accounts dated September 2, 2011, which provides for a corporate credit card facility in the maximum principal amount of $110,000.00 (the “Corporate Credit Card Facility”). Together, the Letter of Credit Obligations and the Corporate Credit Card Facility will be referred to herein as the “M&T Prepetition Senior Obligations.” (ii) C.
Prepetition Subordinated Credit Documents
MCRI, as borrower, is a party to a promissory note, mortgage, and
security agreement dated June 4, 2015, pursuant to which HSK-MC, LLC (“HSK-MC”) extended a secured financing facility to MCRI in the original sum of $3 million (the “$3 Million Loan”). To secure the $3 Million Loan, the Debtors granted to HSK-MC a mortgage and security interests in the Prepetition Collateral junior to the Prepetition Senior Obligations. On January 1, 2016, HSK-MC assigned its rights and interest in the $3 Million Loan to HSK Industries, Inc. (“HSK Industries”). Also on January 1, 2016,
-5-
Case 17-19899-SLM Page: Debtors: Case No.: Caption:
Doc 37
Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 6 of 107
Desc Main
6 Mountain Creek Resort, Inc., et al. 17-19899 (SLM) Interim Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Authorizing the Debtors to Obtain Postpetition Financing, (IV) Granting Liens and Superpriority Claims to The DIP Lender, (V) Modifying The Automatic Stay, and (VI) Scheduling a Final Hearing ______________________________________________________________________________ HSK Industries, in turn, assigned its rights and interest in the $3 Million Loan to HSK Adventure, Inc. (“HSK Adventure”). On February 17, 2016, MCRI and HSK Adventure entered into the Amended and Restated Senior Secured Convertible Note dated June 4, 2015, in the amount of $3 million (the “HSK Adventure Facility”). The HSK Adventure Facility is secured by liens and security interests on the Prepetition Collateral. As of the Petition Date, approximately $3 million was outstanding under the HSK Adventure Facility (the “HSK Adventure Obligations”). D.
MCRI, as borrower, is a party to a promissory note (the “Senior Secured
Convertible Note”), mortgage, and security agreement dated February 17, 2016 pursuant to which Kuzari Investor 27335 LLC (“Kuzari”) extended a secured financing facility to MCRI in the original sum of $2 million (the “Kuzari Facility”). To secure the Kuzari Facility, MCRI granted to Kuzari a mortgage and security interests in the Prepetition Collateral junior to the Prepetition Senior Obligations and the HSK Adventure obligations. The remaining Debtors (other than Appalachian Liquors) and certain other affiliated entities and individuals are guarantors of the Kuzari Facility. As of the Petition Date, approximately $2 million was outstanding under the Kuzari Facility (the “Kuzari Obligations”). E.
MCRI, as borrower, is a party to the Amended and Restated Promissory
Note dated May 10, 2016, pursuant to which HSK Adventure extended a secured financing facility to MCRI in the original sum of $4 million (the “HSK Adventure Junior Facility”). To secure the HSK Junior Facility, MCRI granted to HSK Adventure a mortgage and security interests in the Prepetition Collateral junior to the Prepetition Secured Obligations, the HSK Adventure Obligations and the Kuzari Obligations. As of
-6-
Case 17-19899-SLM Page: Debtors: Case No.: Caption:
Doc 37
Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 7 of 107
Desc Main
7 Mountain Creek Resort, Inc., et al. 17-19899 (SLM) Interim Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Authorizing the Debtors to Obtain Postpetition Financing, (IV) Granting Liens and Superpriority Claims to The DIP Lender, (V) Modifying The Automatic Stay, and (VI) Scheduling a Final Hearing ______________________________________________________________________________ the Petition Date, approximately $4 million was outstanding under the HSK Adventure Junior Lien Facility (the “HSK Adventure Junior Obligations,” and together with the HSK Adventure Obligations and the Kuzari Obligations, the “Prepetition Subordinated Obligations”). Collectively, HSK Adventure and Kuzari will be referred to herein as the “Prepetition Subordinated Lenders.” 6.
The Debtors do not have sufficient unencumbered cash or other assets to continue
to operate their business during these Chapter 11 Cases or to effectuate a reorganization. The Debtors will be immediately and irreparably harmed if they are not immediately granted the authority to use the Cash Collateral of the Prepetition Senior Lender and Prepetition Subordinated Lenders and to obtain postpetition financing from the DIP Lender in accordance with the terms of the DIP Credit Agreement in order to permit, among other things, the orderly continuation of its business, the ability to fund payroll and payroll taxes, the maintenance of its relations with vendors and suppliers, satisfaction of its working capital needs, as well as the ability to pay taxes, inventory, supplies, overhead, insurance and other necessary expenses. The access of the Debtors to sufficient working capital and liquidity made available through the use of Cash Collateral, incurrence of new indebtedness for borrowed money and other financial accommodations is vital to the preservation and maintenance of the going concern value of the Debtors and to a successful reorganization of the Debtors. 7.
Despite reasonable efforts, the Debtors have been unable to obtain financing on
more favorable terms from sources other than the DIP Lender under the DIP Credit Agreement and are unable to obtain adequate unsecured credit allowable under section 503(b)(1) of the Bankruptcy Code as an administrative expense. The Debtors are also unable to obtain secured credit allowable under sections 364(c)(1), 364(c)(2) and 364(c)(3) of the Bankruptcy Code
-7-
Case 17-19899-SLM
Doc 37
Page: Debtors: Case No.: Caption:
Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 8 of 107
Desc Main
8 Mountain Creek Resort, Inc., et al. 17-19899 (SLM) Interim Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Authorizing the Debtors to Obtain Postpetition Financing, (IV) Granting Liens and Superpriority Claims to The DIP Lender, (V) Modifying The Automatic Stay, and (VI) Scheduling a Final Hearing ______________________________________________________________________________ without granting the DIP Lender, subject to the Carve-Out (defined below), the DIP Liens and the DIP Superpriority Claim under the terms and conditions set forth in this Interim Order and in the DIP Credit Agreement. 8.
The terms of the DIP Facility proposed by the DIP Lender are fair and reasonable
and the best available under the present circumstances, reflect the Debtors’ exercise of prudent business judgment consistent with its fiduciary duty, and are supported by reasonably equivalent value and consideration. The postpetition financing under the DIP Facility has been entered into in good faith by and among the Debtors and the DIP Lender; and the postpetition financing to be provided by the DIP Lender has been extended in good faith as that term is used in section 364(e) of the Bankruptcy Code. 9.
Based on the record before the Court, the terms of the use of Cash Collateral and
the adequate protection granted in this Order have been proposed in good faith, as that term is used in section 364(e) of the Bankruptcy Code, and are in the best interests of the Debtors, their estates, and creditors and are consistent with the Debtors’ fiduciary duties. 10.
The DIP Lender is willing to provide the DIP Facility subject to the conditions set
forth herein and in the DIP Credit Documents, including, without limitation, the provision of this Interim Order assuring that the Superpriority Claims (defined below), Adequate Protection Superpriority Claims (defined below), Adequate Protection Liens (defined below), and other protections granted pursuant to this Interim Order and the DIP Credit Documents will not be affected by any subsequent reversal or modification of this Interim Order or any other order which is applicable to the DIP Facility, to the extent provided in section 364(e) of the Bankruptcy Code.
-8-
Case 17-19899-SLM
Doc 37
Page: Debtors: Case No.: Caption:
Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 9 of 107
Desc Main
9 Mountain Creek Resort, Inc., et al. 17-19899 (SLM) Interim Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Authorizing the Debtors to Obtain Postpetition Financing, (IV) Granting Liens and Superpriority Claims to The DIP Lender, (V) Modifying The Automatic Stay, and (VI) Scheduling a Final Hearing ______________________________________________________________________________ 11.
The Debtors have requested the immediate entry of this Order pursuant to
Bankruptcy Rules 4001(b) and (c), and Local Rule 4001-3. Absent the entry of this Order, the Debtors and their estates will be immediately and irreparably harmed. 12.
Subject to the terms and conditions contained in this Interim Order, the Debtors
are hereby expressly authorized and directed to execute and deliver to the DIP Lender any DIP Credit Documents, including the DIP Credit Agreement, and such additional documents, instruments, and agreements as may be reasonably required by the DIP Lender to implement the terms, and effectuate the purposes, of this Interim Order. The terms and conditions of the DIP Credit Agreement, are hereby approved and ratified, and the Debtor is authorized and directed to comply with and perform all of the terms and conditions contained therein. The failure to reference or discuss any particular provision of the DIP Credit Agreement in this Interim Order shall not affect the validity or enforceability of any such provision. In the event of a conflict between this Interim Order and the DIP Credit Agreement, the terms and conditions of this Interim Order shall govern. 13.
The Debtors are hereby authorized to obtain postpetition financing from the DIP
Lender in accordance with the terms of this Interim Order, the DIP Facility, and the Budget up to the principal amount of $2 million pursuant to section 364(c) of the Bankruptcy Code pending the final hearing scheduled for June 5, 2017, at 10:00 a.m. (ET) (the “Final Hearing”). 14.
In accordance with sections 364(c)(1) and 507(b) of the Bankruptcy Code and
subject to the Adequate Protection Superpriority Claims (defined below), all DIP Obligations under the DIP Facility shall constitute claims (the “DIP Superpriority Claims”) with priority in payment over any and all administrative expenses of the kinds specified or ordered pursuant to any provision of the Bankruptcy Code, including, but not limited to, sections 105, 326, 328, 330,
-9-
Case 17-19899-SLM Page: Debtors: Case No.: Caption:
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 10 of 107
Desc Main
10 Mountain Creek Resort, Inc., et al. 17-19899 (SLM) Interim Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Authorizing the Debtors to Obtain Postpetition Financing, (IV) Granting Liens and Superpriority Claims to The DIP Lender, (V) Modifying The Automatic Stay, and (VI) Scheduling a Final Hearing ______________________________________________________________________________ 331, 503(b), 506(c), 507(b), 546(c), 1113 and 1114 of the Bankruptcy Code and shall at all times be senior to the rights of the Debtors, any successor trustee to the extent permitted by law, or any other creditor in the Chapter 11 Cases, provided, however, that the DIP Superpriority Claims shall be subordinate to the Adequate Protection Superpriority Claims of the Prepetition Senior Lender. 15.
As security for the Debtors’ DIP Obligations arising under or in connection with
the DIP Credit Agreement, the DIP Lender is hereby granted first priority liens and security interests pursuant to section 346(c)(2) of the Bankruptcy Code on all of the DIP Collateral (as described in the DIP Credit Agreement) of the Debtors that is made subject to the security interests granted to the DIP Lender under the DIP Facility that was not encumbered as of the Petition Date, but excluding any avoidance power actions the Debtors have under sections 544 through 551, and section 553, of the Bankruptcy Code (the “Avoidance Power Actions”). 16.
Additionally, as security for the Debtors’ DIP Obligations arising under or in
connection with the DIP Credit Documents, the DIP Lender is hereby granted, pursuant to sections 364(c)(3) and 364(d) of the Bankruptcy Code, a perfected lien and security interest in all of the DIP Collateral (as defined in the DIP Credit Agreement) of the Debtors junior in priority only to valid and perfected liens or security interests held by the Prepetition Senior Lender and Other Secured Lenders (as defined in the Motion) as of the Petition Date, and senior in priority to any liens or security interests held by the Prepetition Subordinated Lenders as of the Petition Date. 17.
The DIP Liens granted to the DIP Lender pursuant to this Interim Order and the
DIP Facility are deemed valid and perfected upon the entry of this Interim Order without the necessity of the DIP Lender taking possession of, filing financing statements, mortgages, or other
-10-
Case 17-19899-SLM Page: Debtors: Case No.: Caption:
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 11 of 107
Desc Main
11 Mountain Creek Resort, Inc., et al. 17-19899 (SLM) Interim Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Authorizing the Debtors to Obtain Postpetition Financing, (IV) Granting Liens and Superpriority Claims to The DIP Lender, (V) Modifying The Automatic Stay, and (VI) Scheduling a Final Hearing ______________________________________________________________________________ documents. Upon the request of the DIP Lender, the Debtors shall execute and deliver to the DIP Lender any and all UCC financing statements, mortgages, notes, assignments, or other instruments or documents considered by the DIP Lender necessary in order to perfect the DIP Liens; and the DIP Lender is hereby granted relief from the automatic stay embodied in section 362(a) of the Bankruptcy Code to receive, file, and record the foregoing. 18.
The Debtors are hereby authorized to use the Cash Collateral of the Prepetition
Senior Lender and Prepetition Subordinated Lenders pursuant to and in accordance with the terms of this Interim Order and the Budget. Until the Final Hearing, as adequate protection for the Debtors’ use of the Cash Collateral of the Prepetition Senior Lender and Prepetition Subordinated Lenders, the Prepetition Senior Lender and Prepetition Subordinated Lenders are hereby granted a replacement security interest and lien (the “Adequate Protection Liens”) on their Prepetition Collateral, but solely to the extent of any diminution in the value of such Prepetition Collateral. The Adequate Protection Liens given to the Prepetition Subordinated Lenders shall be subordinated to the Adequate Protection Liens given to the Prepetition Senior Lender. The Adequate Protection Liens given to the Prepetition Senior Lender shall be superior in priority to the DIP Liens. 19.
Additionally, in accordance with sections 364(c)(1) and 507(b) of the Bankruptcy
Code, the Prepetition Senior Lender and the Prepetition Subordinated Lenders are hereby granted a claim with priority in payment over any and all administrative expenses of the kind specified or ordered pursuant to any provision of the Bankruptcy Code, including, but not limited to, sections 105, 326, 328, 330, 331, 503(b), 506(c), 507(a), 507(b), 546(c), 1113 and 1114 of the Bankruptcy Code and shall at all times be senior to the rights of the Debtors, any successor or
-11-
Case 17-19899-SLM Page: Debtors: Case No.: Caption:
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 12 of 107
Desc Main
12 Mountain Creek Resort, Inc., et al. 17-19899 (SLM) Interim Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Authorizing the Debtors to Obtain Postpetition Financing, (IV) Granting Liens and Superpriority Claims to The DIP Lender, (V) Modifying The Automatic Stay, and (VI) Scheduling a Final Hearing ______________________________________________________________________________ trustee to the extent permitted by law , or any other creditor in the Chapter 11 Cases (the “Adequate Protection Superpriority Claims”). 20.
The Adequate Protection Liens and security interests granted to the Prepetition
Senior Lender and Prepetition Subordinated Lenders pursuant to this Interim Order are deemed valid and perfected upon entry of this Interim Order without the necessity of the Prepetition Senior Lender or Prepetition Subordinated Lenders taking possession of, filing financing statements, mortgages, or other documents. Upon the request of the Prepetition Senior Lender and/or the Prepetition Subordinated Lenders, the Debtors shall execute and deliver to the Prepetition Senior Lender and/or Prepetition Subordinated Lenders any and all UCC financing statements, mortgages, notes, assignments, or other instruments or documents considered by the Prepetition Senior Lender and/or Prepetition Subordinated Lenders necessary in order to perfect the Adequate Protection Liens; and the Prepetition Senior Lender and Prepetition Subordinated Lenders are hereby granted relief from the automatic stay embodied in section 362(a) of the Bankruptcy Code to receive, file, and record the foregoing. 21.
As additional adequate protection for the Prepetition Senior Lender, the Debtors
shall (a) pay all interest accruing on the First Lien Obligations at the non-default rate specified under the M&T Loan Facility, on a monthly basis, commencing as of June 1, 2017 (including unpaid interest for May 2017), and on the first day of each month thereafter, (b) pay all fees and costs associated with the Letter of Credit, and (c) fully cash collateralize the Corporate Credit Card Facility in an amount equal to 103% of $55,000.00 (which amount shall be the maximum amount available under the Corporate Credit Card Facility) in a separate account earmarked for the Debtors’ Corporate Credit Card Facility. To the extent the Debtors seek to increase the maximum amount available under the Corporate Credit Card Facility, the Debtors shall notify
-12-
Case 17-19899-SLM Page: Debtors: Case No.: Caption:
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 13 of 107
Desc Main
13 Mountain Creek Resort, Inc., et al. 17-19899 (SLM) Interim Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Authorizing the Debtors to Obtain Postpetition Financing, (IV) Granting Liens and Superpriority Claims to The DIP Lender, (V) Modifying The Automatic Stay, and (VI) Scheduling a Final Hearing ______________________________________________________________________________ the Prepetition Senior Lender and provide an amount equal to 103% of the new maximum amount available in a separate account earmarked for the Debtors’ Corporate Credit Card Facility, provided, however, the maximum credit under the Corporate Credit Card Facility shall not exceed $110,000.00. In addition, the Debtors shall pay the reasonable costs and expenses of the Prepetition Senior Lender, subject to the Budget. A copy of each invoice submitted to the Debtors for professional fees and expenses pursuant to this paragraph (the “Professional Fees”) shall be sent to the United States Trustee, counsel for the Debtors, counsel for the DIP Lender, and counsel for any Committee appointed in these Chapter 11 Cases (collectively, the “Professional Fees Notice Parties”). The invoices for such Professional Fees shall include the number of hours billed for each professional, the hourly rate charge by each professional, and a reasonably detailed description of the services provided and the expenses incurred by the applicable professional; provided, however, that any such invoice may be redacted to protect privileged, confidential, or proprietary information. The Professional Fee Notice Parties shall have fifteen (15) business days after receipt of the applicable invoice to submit to the applicable professional and the Professional Fee Notice Parties a written objection to the reasonableness of such Professional Fees, which must contain a specific basis for the objection and quantification of the undisputed amount of the fees and expenses involved. None of the Professional Fees shall be subject to Court approval unless a timely objection is raised and not consensually resolved or required to be maintained in accordance with the U.S. Trustee Guidelines, and no recipient of any payment on account thereof shall be required to file with respect thereto any interim or final fee application with the Court. 22.
Furthermore, the Debtors shall provide to the counsel for the Prepetition Senior
Lender and counsel for the Prepetition Subordinated Lenders all reports that are submitted to the
-13-
Case 17-19899-SLM Page: Debtors: Case No.: Caption:
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 14 of 107
Desc Main
14 Mountain Creek Resort, Inc., et al. 17-19899 (SLM) Interim Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Authorizing the Debtors to Obtain Postpetition Financing, (IV) Granting Liens and Superpriority Claims to The DIP Lender, (V) Modifying The Automatic Stay, and (VI) Scheduling a Final Hearing ______________________________________________________________________________ DIP Lender pursuant to section 10 of the DIP Credit Agreement, simultaneously with the time that such reports are provided to the DIP Lender. In addition, the Debtors shall provide to the counsel for the Prepetition Senior Lender the following: (a) a rolling thirteen (13) week budget every two (2) weeks, commencing June 2, 2017, of which the first thirteen (13) weeks shall agree to the DIP Budget; the “weekly change in cash” category contained in the Budget shall not have a variance greater than fifteen percent (15%) on a cumulative basis; (b) a variance report on a weekly basis each Thursday commencing June 1, 2017, covering the weekly period through the prior Thursday reconciling actual expenditures during that week to those set forth in the Budget; (c) updated thirteen (13)-week cash flow projections every other week commencing on June 2, 2017 and each two weeks thereafter; (d) monthly business financial statements together with monthly operating statements on the 27th day following the previous month end; (e) copies of all sewer and bond documents, which are available to the Debtors, which involve the Debtors’ assets, including, but not limited to, the $23 Million bond relating the Township of Vernon, Sussex County; (f) copies of all leases impacting the real estate owned by Mountain Creek Resort, Inc., including, but not limited to, the Morford lease and Kellam Lease, and that certain Reservation of Rights Agreement; (g) copies of any and all surveys concerning the real property owned by Mountain Creek Resort, Inc.; and (h) updated proof of insurance and proof that M&T is a co-insured and loss payee and updated proof of flood insurance. 23.
Neither the Debtors nor any other person shall assert a claim under section 506(c)
of the Bankruptcy Code for any costs and expenses incurred in connection with the preservation, protection or enhancement of, or realization by the DIP Lender, Prepetition Senior Lender or Prepetition Subordinated Lenders upon the DIP Collateral, the Prepetition Collateral or the
-14-
Case 17-19899-SLM Page: Debtors: Case No.: Caption:
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 15 of 107
Desc Main
15 Mountain Creek Resort, Inc., et al. 17-19899 (SLM) Interim Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Authorizing the Debtors to Obtain Postpetition Financing, (IV) Granting Liens and Superpriority Claims to The DIP Lender, (V) Modifying The Automatic Stay, and (VI) Scheduling a Final Hearing ______________________________________________________________________________ collateral subject to the Adequate Protection Liens or for any expenses of the administration of the estate. 24.
No cost or expense of administration under sections 105, 364(c)(1), 503(b),
506(c), 507(b), 726 (to the extent permitted by law), 1113, 1114 or otherwise of the Bankruptcy Code, shall be senior to, equal to, or pari passu with, the Superpriority Claims of the DIP Lender arising out of the DIP Obligations, or, thereafter, the Adequate Protection Superpriority Claims of the Prepetition Senior Lender and Prepetition Subordinated Lenders. 25.
Notwithstanding anything to the contrary contained anywhere in this Interim
Order and/or the DIP Credit Agreement, the Prepetition Collateral and all collateral which is made subject to the security interests and liens granted to the DIP Lender, the Prepetition Senior Lender, and Prepetition Subordinated Lenders pursuant to the terms of this Interim Order shall be subject to a carve-out (the “Carve-Out”) for the sum of allowed administrative expenses payable pursuant to 28 U.S.C. § 1930(a)(6) and Priority Professional Expenses.
“Priority
Professional Expenses” means allowed fees, costs, and reasonable expenses allowed or permitted pursuant to sections 330 and 331 of the Bankruptcy Code of (a) professionals retained by the Debtors up to the amount of $400,000, and (b) any professionals retained by any Committee that may be appointed in these Chapter 11 Cases up to the amount of $100,000, but subject to the amount set forth in the Budget, provided, however, that following the occurrence of an Event of Default under the DIP Facility, these Carve-Out amounts shall be limited to $75,000 and $25,000 in fees and expenses incurred after the Event of Default for the Debtors’ and Committees’ professionals, respectively. Furthermore, Priority Professional Expenses shall not include any fees or expenses (collectively, the “Ineligible Professional Fees”) incurred by any such professional in preventing, hindering or delaying the DIP Lender, the Prepetition Senior Lender,
-15-
Case 17-19899-SLM Page: Debtors: Case No.: Caption:
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 16 of 107
Desc Main
16 Mountain Creek Resort, Inc., et al. 17-19899 (SLM) Interim Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Authorizing the Debtors to Obtain Postpetition Financing, (IV) Granting Liens and Superpriority Claims to The DIP Lender, (V) Modifying The Automatic Stay, and (VI) Scheduling a Final Hearing ______________________________________________________________________________ or the Prepetition Subordinated Lenders from enforcing or realizing upon any of their collateral once an Event of Default has occurred, using or seeking to use Cash Collateral or selling any collateral subject to the liens of the DIP Lender, the Prepetition Senior Lender, or the Prepetition Subordinated Lenders without the consent of the DIP Lender, the Prepetition Senior Lender, or the Prepetition Subordinated Lenders, objecting to or contesting in any manner, or raising any defenses to, the validity, extent, amount, perfection, priority or enforceability of the liens and security interests of the Prepetition Senior Lender or the Prepetition Subordinated Lenders, the First Lien Obligations, the Prepetition Subordinated Obligations, the DIP Facility, or any mortgages, assignments, liens, or security interests with respect thereto or any other rights or interests of the DIP Lender, the Prepetition Senior Lender, or the Prepetition Subordinated Lenders, or in asserting any claims or causes of action, including, without limitation, any actions under chapter 5 or section 724(a) of the Bankruptcy Code, or for equitable subordination, against the DIP Lender, the Prepetition Senior Lender, or the Prepetition Subordinated Lenders. 26.
Upon the occurrence of an Event of Default contained in the DIP Credit
Agreement, the DIP Lender may declare all DIP Obligations owing under the DIP Facility to be immediately due and payable and may declare a termination of any further obligation to extend credit to the Debtors and exercise all other remedies as set forth in the section 13 of the DIP Credit Agreement. Upon the occurrence of an Event of Default and following the giving of five business days’ notice to counsel for the Debtors, counsel for any Committee appointed in these Chapter 11 Cases, and the United States Trustee, the DIP Lender shall have immediate relief from the automatic stay and foreclose on all or any portion of the DIP Collateral, or otherwise exercise remedies against the DIP Collateral, as permitted by applicable non-bankruptcy law and the Debtors’ rights to use cash collateral shall cease. During such five-business-day notice
-16-
Case 17-19899-SLM Page: Debtors: Case No.: Caption:
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 17 of 107
Desc Main
17 Mountain Creek Resort, Inc., et al. 17-19899 (SLM) Interim Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Authorizing the Debtors to Obtain Postpetition Financing, (IV) Granting Liens and Superpriority Claims to The DIP Lender, (V) Modifying The Automatic Stay, and (VI) Scheduling a Final Hearing ______________________________________________________________________________ period, the Debtors and any appointed Committee shall be entitled to an emergency hearing with this Court for the sole purpose of contesting whether an Event of Default has occurred. 27.
Pursuant to section 364(e) of the Bankruptcy Code, if any or all of the provisions
of this Interim Order are hereafter modified, vacated or stayed, such stay, modification or vacation shall not affect the validity of any obligation, indebtedness, security interests or liens granted by the Debtors to the DIP Lender, the Prepetition Senior Lender and/or the Prepetition Subordinated Lenders prior to the effective date of any such stay, modification or vacation, or the validity and enforceability or priority of any lien or security interest authorized, granted or created pursuant to this Interim Order. 28.
The entry of this Interim Order is without prejudice to the right of any party in
interest, including the Official Committee of Unsecured Creditors (the “Committee”), if any, appointed in these Chapter 11 Cases, to challenge the prepetition liens of the Prepetition Senior Lender and Prepetition Subordinated Lenders, to the extent such a right exists, provided, however, any challenges to the validity, extent or priority of the liens or claims of the Prepetition Senior Lender, including the assertion of any claims under sections 510, 544, 547 or 548 of the Bankruptcy Code (collectively, “Challenges”) must be commenced, subject to obtaining standing, within sixty (60) days after the appointment of the Committee, but in no event later than within seventy-five (75) days from the Petition Date (the “Challenge Deadline”). Any and all Challenges by any party (including any chapter 11 or chapter 7 trustee) shall be forever barred unless brought by the Committee on or before the Challenge Deadline. 29.
The provisions of this Interim Order shall be binding upon and insure to the
benefit of the DIP Lender, the Prepetition Senior Lender, the Prepetition Subordinated Lenders, and the Debtors and their respective successors and assigns (including any trustee or other
-17-
Case 17-19899-SLM Page: Debtors: Case No.: Caption:
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 18 of 107
Desc Main
18 Mountain Creek Resort, Inc., et al. 17-19899 (SLM) Interim Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Authorizing the Debtors to Obtain Postpetition Financing, (IV) Granting Liens and Superpriority Claims to The DIP Lender, (V) Modifying The Automatic Stay, and (VI) Scheduling a Final Hearing ______________________________________________________________________________ fiduciary hereafter appointed as legal representative of the Debtors or with respect to the property of the estate of the Debtors) whether in these Chapter 11 Cases, in any subsequent cases under chapter 7 of the Bankruptcy Code, or upon dismissal of any such chapter 11 or chapter 7 case. 30.
The provisions of this Interim Order shall be immediately effective upon its entry
by the Bankruptcy Court as provided for in Bankruptcy Rules 6004(g) and 7062. 31.
The Final Hearing on the Motion is scheduled for June 5, 2017, at 10:00 a.m.
(ET), before the Honorable Stacey L. Meisel, U.S.B.J., at the United States Bankruptcy Court for the District of New Jersey, in the Martin Luther King, Jr. Federal Building, located at 50 Walnut Street, Newark, New Jersey, 07102. 32.
The Debtors are hereby directed to serve a copy of this Interim Order, by regular
mail or overnight mail, within one (1) day of entry of this Interim Order on (i) the Office of the United States Trustee for the District of New Jersey, One Newark Center, Suite 2100, Newark, NJ 07102; (ii) Tarter Krinsky & Drogin LLP, 1350 Broadway, New York, New York 10018, Attention: Scott Markowitz, Esq. and Arthur Goldstein, Esq., attorneys for the DIP Lender; (iii) the Internal Revenue Service, 2970 Market Street, Mail Stop 5-Q30.133, Philadelphia, PA 19104-5016; (iv) the New Jersey Division of Taxation Compliance and Enforcement Bankruptcy Unit, 50 Barrack Street, 9th Floor, Trenton, NJ 08695; (v) the Office of the Attorney General of the State of New Jersey, Division of Law, Richard J. Hughes Justice Complex, 25 Market Street, Trenton, NJ 08625; (vi) the Office of the United States Attorney, Peter Rodino Federal Building, 970 Broad Street, Suite 700, Newark, NJ 07102; (vii) M&T Bank, PO Box 1302, Buffalo, NY 14240-1302; (viii) Greenberg Traurig, LLP, 2700 Two Commerce Square, 2001 Market Street, Philadelphia, PA 19103, Attention: Diane E. Vuocolo, attorneys for M&T
-18-
Case 17-19899-SLM Page: Debtors: Case No.: Caption:
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 19 of 107
Desc Main
19 Mountain Creek Resort, Inc., et al. 17-19899 (SLM) Interim Order (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Authorizing the Debtors to Obtain Postpetition Financing, (IV) Granting Liens and Superpriority Claims to The DIP Lender, (V) Modifying The Automatic Stay, and (VI) Scheduling a Final Hearing ______________________________________________________________________________ Bank; (ix) Head USA, Inc., 3125 Sterling Circle, Suite 101, Boulder, CO 80301; (x) Alpina Sports Corp., 93 Etna Road, Lebanon, NH 03766; (xi) HSK Adventure, Inc., 300 Plaza Drive, Vestal, NY 13850; (xii) Kuzari Investor 27335 LLC, 220 East 42nd Street, 29th Floor, New York, NY; (xiii) Bank of America, N.A. Bank of America Corporate Center, 100 North Tryon St, Charlotte, NC 28255; (xiv) The Township of Vernon, 21 Church Street, Vernon, NJ 07462; (xv) Highlands State Bank, PO Box 160, Vernon, NJ 07462; (xvi)Visions Federal Credit Union, 24 McKinley Ave, Endicott, NY 13760-5491; (xvii) Axess North America, 6433 N Business Loop Rd, Park City, UT 84098; (xviii) Proficio Bank, 6985 Union Park Center, Suite 150, Cottonwood Heights, UT 84047; (xix) Dell Financial Services LLC, 12234 North Interstate 35, Suite 35B, Austin, TX 78753; (xx) Marlin Business Bank, 300 Fellowship Rd, Mt Laurel, NJ 08054; (xxi) Ally Financial Inc., Ally Detroit Center, 500 Woodward Ave, Detroit, MI 48226; (xxii) Kubota Credit Corporation USA, 4400 Amon Carter Boulevard, Suite 100, Fort Worth, TX 76155; (xxiii) GE Capital Information Technology Solutions, LLC, 300 E. John Carpenter Freeway, Irving, TX 75062-2712; (xxiv) Bank of the West, Dept. LA 23091, Pasadena, CA 91185-3091; and (xxv) the Debtors’ twenty largest unsecured creditors on a consolidated basis. 33.
Any party in interest who objects to the relief sought in the Motion at the Final
Hearing shall, on or before May 31, 2017, at 5:00 p.m. (ET), file a written objection with the Clerk of the Court and serve a copy on: (i) Lowenstein Sandler LLP, 65 Livingston Avenue, Roseland, New Jersey 07068, Attention: Kenneth A. Rosen, Esq. and Jeffrey D. Prol, Esq., attorneys for the Debtors; and (ii) Tarter Krinsky & Drogin LLP, 1350 Broadway, New York, New York 10018, Attention: Scott Markowitz, Esq. and Arthur Goldstein, Esq., attorneys for the DIP Lender. 34.
The provisions of this Interim Order are non-severable and mutually dependent.
-19-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 20 of 107
Interim DIP Order Exhibit A
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 21 of 107
Desc Main
DEBTOR-IN-POSSESSION CREDIT AND SECURITY AGREEMENT BY AND BETWEEN MOUNTAIN CREEK RESORT, INC. AND MC DIP FUNDING LLC
31381/2 05/17/2017 47996688.5
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 22 of 107
Desc Main
TABLE OF CONTENTS PAGES Section 1.
Definitions................................................................................................................1
Section 2.
DIP Loan ................................................................................................................14
Section 3.
DIP Liens and Protections .....................................................................................17
Section 4.
Payment Obligations ..............................................................................................17
Section 5.
Use of Cash Collateral ...........................................................................................18
Section 6.
UCC Filings ...........................................................................................................18
Section 7.
Other DIP Loan Terms...........................................................................................18
Section 8.
Conditions Precedent; Conditions Subsequent ......................................................19
Section 9.
Representations and Warranties .............................................................................22
Section 10.
Affirmative Covenants ...........................................................................................25
Section 11.
Negative Covenants/Financial Covenants .............................................................28
Section 12.
Events of Default ...................................................................................................28
Section 13.
Remedies ................................................................................................................30
Section 14.
Miscellaneous ........................................................................................................31
Section 15.
Third Party Beneficiaries .......................................................................................34
Section 16.
Attorney-In-Fact ....................................................................................................35
Section 17.
Governing Law; Submission to Exclusive Jurisdiction; Venue; Waiver of Jury Trial ...............................................................................................35
-i-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 23 of 107
Desc Main
DEBTOR-IN- POSSESSION CREDIT AND SECURITY AGREEMENT THIS CREDIT AND SECURITY AGREEMENT (this “Agreement”), is made and entered into as of May __, 2017 (the “Agreement Date”), by Mountain Creek Resort, Inc., as borrower (the “Company” or “Borrower”) and MC DIP Funding LLC, as lender (the “DIP Lender”). WITNESSETH: WHEREAS, on May __ 2017 (the “Petition Date”), the Company and certain of its affiliates, Mountain Creek Services, Inc., Mountain Creek Management LLC, Mountain Creek Mountainside, LLC, Mountain Leasing LLC and Appalachian Liquors (collectively, the “Debtors” and each a “Debtor”) each commenced proceedings under chapter 11 of the Bankruptcy Code by filing voluntary petitions for relief with the United States Bankruptcy Court for the District of New Jersey (the “Bankruptcy Court”). Each Debtor retained possession of its assets and is authorized under sections 1107 and 1108 of the Bankruptcy Code to continue the management and operation of its business as a debtor-in-possession. The Debtors’ cases have been administratively consolidated and the lead case docket number is Case No. 17-_______ (collectively, the “Cases”); WHEREAS, each Debtor requested that the DIP Lender provide, and the DIP Lender is willing to provide, subject to the terms and conditions of this Agreement, any other DIP Credit Documents, and the approval of the Bankruptcy Court, a debtor-in-possession financing facility to the Debtors that will supplement the Debtors’ use of cash collateral to provide working capital and to pay other expenses permitted under this Agreement in an interim amount of up to $2,000,000.00 and an aggregate principal amount up to and including $6,000,000.00 (the “Maximum Commitment”); WHEREAS, on the Petition Date, the Debtors filed a motion with the Bankruptcy Court under docket number ____, which, among other things, seeks authorization for the Debtors to enter into the DIP Credit Documents, including this Agreement; WHEREAS, the parties to this Agreement have reached certain mutual understandings and agreements with respect to the matters as set forth in this Agreement, subject to approval of the Bankruptcy Court, and each of the parties believes it to be in their respective best interests to set forth the terms of such mutual understandings and agreements as provided in this Agreement. NOW THEREFORE, in consideration of the premises and the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement, intending to be legally bound, hereby agree as follows: Section 1. Definitions. As used in this Agreement, the following terms have the meanings as set forth in this Section 1: (a)
“Account” has the meaning assigned to such term in the UCC.
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 24 of 107
Desc Main
(b) “Action” against a Person means an action, suit, litigation, arbitration, investigation, complaint, contest, hearing, inquiry, inquest, audit, examination, or other proceeding threatened or pending against or affecting such Person or its property, whether civil, criminal, administrative, investigative, or appellate, in law or equity before any arbitrator or Governmental Body. (c)
“Additional Draw” has the meaning as set forth in Section 2(a)(ii)(2).
(d) “Affiliate” means, with respect to a specified Person, any other Person which directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with such Person, and without limiting the generality of the foregoing, includes: (i) any Person which beneficially owns or holds five percent or more of any class of Voting Stock of such Person or other equity interests in such Person; (ii) any Person of which such Person beneficially owns or holds five percent or more of any class of Voting Stock, or in which such Person beneficially owns or holds five percent or more of the Capital Stock; and (iii)
any director or executive officer of such Person.
For the purposes of this Section 1(d), the term “control” (including with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Stock, by agreement, or otherwise. (e)
“Agreement” has the meaning as set forth in the preamble.
(f)
“Agreement Date” has the meaning as set forth in the preamble.
(g)
“Applicable Rate” means the Prime Rate.
(h) “Asset Sale” means a sale, lease, or sublease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, or other disposition to, or any exchange of property with, any Person, in one or more transactions, or a series of related transactions, of all or any part of the businesses of any Debtor, or of all or any part of the assets or properties of any kind of any Debtor, whether real, personal, or mixed, and whether tangible or intangible, whether now owned or hereafter acquired other than any assets sold or leased in the ordinary course of business. (i)
“Assignee” has the meaning as set forth in Section 14(f).
(j)
“Assignment” has the meaning as set forth in Section 14(f).
(k) “Authorized Officer” means, as applied to any Person, any individual holding the position of chairman of the board, chief executive officer, president, or one of its
-2-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 25 of 107
Desc Main
vice presidents (or the equivalent thereof), and such Person’s chief financial officer, treasurer, or any other position with such Person, if such Person is deemed by that Person to be an Authorized Officer for the purposes of this Agreement. (l)
“Bankruptcy Code” means Title 11 of the United States Code.
(m)
“Bankruptcy Court” has the meaning as set forth in the recitals.
(n) “Business Day” means a day other than Saturday, Sunday, or other day on which commercial banks in New York City, New York or New Jersey are authorized or required by law or other governmental action to close. (o) “Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal, or mixed) by that Person as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person. (p) “Capital Stock” means any and all shares, interests, participations, or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights, or options to purchase or other arrangements or rights to acquire any of the foregoing. (q) (r)
“Cases” has the meaning as set forth in the recitals. “Change of Control” means any one or more of the following events:
(i) the transfer (in one transaction or a series of transactions) of all or substantially all of the assets of the Debtors to any Person or group (as such term is used in Section 13(d)(3) of the Exchange Act); and (ii) the liquidation or dissolution of any Debtor or the adoption of a plan by the stockholders, members, or holders of similar rights of the Debtors relating to the dissolution or liquidation of the Debtors. (s) “Closing Date” means the date that the Initial Draw is paid to the Borrower on behalf of all of the Debtors. (t) “Committee” means any statutory committee of unsecured creditors of the Debtors appointed by the United States Trustee for the District where the Cases are pending (if any). (u) “Controlled Account” means and includes any deposit account, securities account, or commodity account (as all such terms are defined in the UCC), and any other bank account or investment account over which the DIP Lender has a DIP Lien pursuant to any Financing Order or other order of the Bankruptcy Court. (v) “Controlled Account Agreement” means an account control agreement in form and substance acceptable to the DIP Lender as necessary to provide the DIP Lender, to the
-3-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 26 of 107
Desc Main
extent not prohibited by applicable law, with “control” over a Deposit Account (each, a “Controlled Account”) as provided for under Section 9-104 of Article 9 of the UCC (or other applicable law) for the purpose of perfecting the security interest which the DIP Lender has in such Deposit Account pursuant to the DIP Collateral Documents. (w) “Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default. (x) “Deposit Account” means any deposit account (as such term is defined in the UCC), including, a demand, time, savings, passbook, or like account with a bank, savings and loan association, credit union, or like organization, other than an account evidenced by a negotiable certificate of deposit. (y) “DIP Budget” means the consolidated budget provided by the Debtors and annexed to this Agreement as Exhibit A, and such other budgets that may be approved by the parties in accordance with Section 10(c). (z) “DIP Collateral Documents” means all instruments, documents, and agreements (including this Agreement) delivered by any Debtor pursuant to this Agreement or the other DIP Credit Documents pursuant to which any Debtor grants a DIP Lien, or any other Lien, mortgage, or encumbrance, to the DIP Lender, as any of the foregoing may be amended, restated, supplemented, modified, or replaced on one or more occasions. (aa) “DIP Collateral” means as security for the DIP Obligations, effective and perfected on the Interim Order Entry Date and without the necessity of the execution, recordation of filings by the Debtors of mortgages, security agreements, control agreements, pledge agreements, financing statements, or other similar documents, or the possession or control by the DIP Lender, security interests and Liens granted to the DIP Lender as set forth in Section 3 of this Agreement for the benefit of the DIP Lender, pursuant to a DIP Interim Order, the DIP Final Order, and the other DIP Credit Documents (collectively, the “DIP Liens”). (bb) “DIP Commitment” means the amount permitted to be advanced to the Debtors under this Agreement in an amount not exceeding the Maximum Commitment. (cc) “DIP Credit Documents” means this Agreement, the Financing Order, the DIP Note (if any), the DIP Collateral Documents, and all other documents, instruments, or agreements signed and delivered by any Debtor for the benefit of the DIP Lender in connection with the transactions contemplated by this Agreement and the other DIP Credit Documents. (dd) “DIP Draw Request Date” means the date that the Debtors obtain an advance from the DIP Lender pursuant to a DIP Loan. (ee) “DIP Final Order” means a final order (which must be acceptable in form and substance to the DIP Lender in its sole discretion) entered, or to be entered, by the Bankruptcy Court authorizing on a final basis the secured financing under this Agreement and the other DIP Credit Documents.
-4-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 27 of 107
Desc Main
(ff) “DIP Interim Order” means one or more interim orders in form(s) acceptable to the DIP Lender entered by the Bankruptcy Court authorizing the secured financing under this Agreement and the other DIP Credit Documents. (gg)
“DIP Lender” has the meaning as set forth in the preamble.
(hh) “DIP Lien” means any Lien granted under or pursuant to this Agreement, any DIP Collateral Document, the other DIP Credit Documents, or any Financing Order. (ii)
“DIP Loan” has the meaning given such term in Section 2(a).
(jj)
“DIP Note” has the meaning given such term in Section 2(c).
(kk) “DIP Obligations” means all Indebtedness, obligations, and liabilities of any Debtor, from time to time, owed to the DIP Lender directly or indirectly, jointly or severally, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law, or otherwise, arising or incurred under this Agreement, the Financing Orders, or any other DIP Credit Documents, or in respect of the DIP Loan, the DIP Note, or any other instruments at any time evidencing any of the foregoing. (ll)
“Dollars” or “$” means lawful money of the United States of America.
(mm) “Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA that is or, within the six years preceding the Agreement Date, was sponsored, maintained, or contributed to by, or required to be contributed to by, any Debtor or any of their respective ERISA Affiliates. (nn) “Environmental Laws” means all federal, state, local, and foreign laws (including common law), statutes, regulations, and rules, whether now or hereinafter in effect relating in any way to the environment, the preservation or reclamation of natural resources, the management, release, or threatened release of any Hazardous Material, or health and safety matters, including the Resource Conservation and Recovery Act, the Comprehensive Environmental Response Compensation and Liability Act of 1980, the Superfund Amendments and Reauthorization Act of 1986, the Federal Clean Water Act, the Federal Clean Air Act, the Toxic Substances Control Act. (oo) “Environmental Liability” means any actual, alleged, or contingent liability or obligations of any Debtor, directly or indirectly resulting from or based on: (i)
violations or alleged violations of any Environmental Law;
(ii) the generation, use, handling, transportation, management, storage, treatment or disposal of any Hazardous Material; (iii)
exposure to any Hazardous Material;
(iv)
the release or threatened release of any Hazardous Material into the
environment; or
-5-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 28 of 107
Desc Main
(v) any contract, agreement, or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. (pp) “Environmental Permits” means all Permits, licenses, authorizations, registrations and other governmental consents required by applicable Environmental Laws for the use, storage, treatment, transportation, release, emission, and disposal of raw materials, byproducts, wastes, and other substances used or produced by, or otherwise relating to, the operations of any Debtor. (qq) “Equipment” means, as to each Debtor, all of such Debtors’ now owned and hereafter acquired equipment, wherever located, including machinery, data processing, and computer equipment (whether owned or licensed and including embedded software), vehicles, tools, furniture, fixtures, all attachments, accessions and property now or hereafter affixed thereto, or used in connection therewith, and substitutions and replacements thereof, wherever located. (rr)
“ERISA” means the Employee Retirement Income Security Act of 1974.
(ss)
“ERISA Affiliate” means, as applied to any Person:
(i) any corporation that is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member; (ii) any trade or business (whether or not incorporated) that is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in Section 1(tt)(i) or any trade or business described in Section 1(tt)(ii) is a member. Any former ERISA Affiliate of any Debtor, will continue to be considered an ERISA Affiliate of such Debtor, within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of such Debtor, and with respect to liabilities arising after such period for which such Debtor, could be liable under the Internal Revenue Code or ERISA. (tt)
“ERISA Event” means:
(i) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(d) of the Internal Revenue Code) or the failure to make by its due date a required installment under Section 412(m) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan;
-6-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 29 of 107
Desc Main
(iii) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by any Debtor or any of their ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which might constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on any Debtor or any of their ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of any Debtor or any of their ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor, or the receipt by any Debtor or any of their ERISA Affiliates of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or omission which could give rise to the imposition on any Debtor or any of their ERISA Affiliates of fines, penalties, taxes, or related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (1), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the assertion of a material claim (other than routine claims for benefits) against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against any Debtor or any of their respective ERISA Affiliates in connection with any Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan. (uu)
“Event of Default” means each of the conditions or events as set forth in
(vv)
“Exchange Act” means the Securities Exchange Act of 1934.
Section 12.
-7-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 30 of 107
Desc Main
(ww) “Final Order Entry Date” means the date on which the Bankruptcy Court enters the DIP Final Order. (xx) “Financial Officer Certification” means, with respect to the financial statements for which such certification is required, the certification of the chief financial officer of the Debtors that such financial statements fairly present, in all material respects, the financial condition of the Debtors on a consolidated basis as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to the absence of footnotes and changes resulting from audit and normal year-end adjustments. (yy) “Financials” means, with respect to any Person for any period, the balance sheet of such Person as at the end of such period, and the related statement of income and expense and statement of cash flow of such Person for such period, each setting forth in comparative form the figures for the previous comparable fiscal period, all in reasonable detail and prepared in accordance with GAAP. (zz) “Financing Order” means, collectively, any DIP Interim Order, the DIP Final Order, and such other orders relating thereto or authorizing the granting of credit by the DIP Lender to the Debtors on an emergency, interim, or permanent basis, pursuant to section 364 of the Bankruptcy Code as may be issued or entered by the Bankruptcy Court in the Cases. (aaa)
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
(bbb) “Fiscal Year” means the fiscal year of any Debtor ending on December 31 of each calendar year. (ccc) “GAAP” means generally accepted accounting principles in the United States as set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied. (ddd) “Governmental Body” means any nation or government, any state or other political subdivision thereof, accounting board or authority that is responsible for the establishment or interpretation of national or international accounting principles, supranational bodies such as the European Union or the European Central Bank, and any agency, branch of government, department or Person exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any corporation or other Person owned or controlled (through stock or capital ownership or otherwise) by any of the foregoing, whether domestic or foreign. (eee) “Hazardous Materials” means any hazardous or toxic substance, waste, contaminant, pollutant, gas, or material, including, radioactive materials, oil, petroleum, and petroleum products and constituents thereof, which are regulated under any Environmental Law, including any substance, waste, or material which is:
-8-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 31 of 107
Desc Main
(i) designated a “pollutant”, “hazardous substance”, “extremely hazardous substance” or “toxic chemical” under any Environmental Law; or (ii) regulated in any way under the Regulations of any Governmental Body where any Debtor conducts its business or owns any real property or has any leasehold or in which any of the Debtors’ properties are located. (fff) “Indebtedness” means, with respect to any Person, without duplication, the following: (i)
all indebtedness of such Person for borrowed money;
(ii) all obligations of such Person for the deferred purchase price of property or services, other than accounts payable and accrued liabilities that would be classified as current liabilities under GAAP which payables and liabilities are incurred in respect of property or services purchased in the ordinary course of business if and only for so long as no item of such accounts payable and accrued liabilities is more than 90 days past due; (iii) all obligations of such Person evidenced by notes, bonds, debentures, or similar notes or Securities instruments; (iv) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person; (v)
all obligations of such Person as lessee under Capital Leases;
(vi)
all obligations of such Person in respect of banker’s acceptances
(vii) property of such Person;
all obligations of such Person secured by Liens on the assets and
and letters of credit;
(viii) all obligations of such Person to purchase, redeem, retire, defease, or otherwise make any payment in respect of any Capital Stock or other ownership or profit interest in such Person or any other Person or any warrants, rights, or options to acquire such Capital Stock; (ix) net liabilities in respect of such Person’s Hedge Agreements as determined in accordance with GAAP; (x) all obligations of such Person in respect of any guaranty by such Person of any obligation of another Person of the type described in Section 1(hhh)(i) and Section 1(hhh)(ix) (inclusive); and (xi) all obligations of another Person of the type described in Section 1(hhh)(i) through Section 1(hhh)(x) (inclusive) secured by a Lien on the property or assets of
-9-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 32 of 107
Desc Main
such Person (whether or not such Person is otherwise liable for such obligations of such other Person). (ggg) “Initial Draw” has the meaning given such term in Section 2(a)(ii)(1). (hhh) “Intellectual Property” means, individually copyrights, all patents, and all trademarks, together with: (i) all inventions, information, know-how, and trade secrets;
processes,
production
and
collectively,
methods,
all
proprietary
(ii) all licenses or user or other agreements granted to any Debtor with respect to any of the foregoing, in each case whether now or hereafter owned or used including the licenses or other agreements with respect to any DIP Collateral; (iii) all customer lists, identification of suppliers, data, plans, blueprints, specifications, designs, drawings, recorded knowledge, surveys, engineering reports, test reports, manuals, materials standards, processing standards, performance standards, catalogs, computer and automatic machinery software and programs; (iv) all field repair data, sales data, and other information relating to sales or service of products now or hereafter manufactured; (v) all accounting information and all media in which or on which any information or knowledge or data or records may be recorded or stored and all computer programs used for the compilation or printout of such information, knowledge, records or data; and (vi) all causes of action, claims, and warranties, in each case, now or hereafter owned or acquired by any Debtor in respect of any of the items set forth in this Section 1(lll). (iii) “Interim Order Entry Date” means the date on which the Bankruptcy Court enters the DIP Interim Order. (jjj)
“Internal Revenue Code” means the Internal Revenue Code of 1986.
(kkk) “Investment” means: (i) any direct or indirect purchase, or other acquisition by any Person of, or of a beneficial interest in, any of the Securities (including any Capital Stock) of any other Person; (ii) any direct or indirect redemption, retirement, purchase or other acquisition for value, by any Person from any Person, of any Capital Stock of such Person; and (iii) any direct or indirect loan, advance or capital contribution by any Person to any other Person, including all Indebtedness and accounts receivable from that other
-10-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 33 of 107
Desc Main
Person that are not current assets or did not arise from sales to that other Person or constitute ordinary trade credit extended in the ordinary course of business. (lll) “Knowledge” means, with respect to the Debtors as the context requires, the Knowledge of the Debtors’ or such Debtors’ Authorized Officers, after reasonable inquiry by such Authorized Officers. (mmm) “Lien” means any mortgage, deed of trust, security interest, charge, pledge, hypothecation, assignment, attachment, deposit arrangement, encumbrance, lien (statutory, judgment, or otherwise, but excluding any right of setoff arising by operation of law or pursuant to agreements entered into in the ordinary course of business), or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any Capital Lease, any financing lease involving substantially the same economic effect as any of the foregoing and the filing of any financing statement under the UCC or comparable law of any jurisdiction in respect of the foregoing). (nnn) “M&T” means M & T Bank. (ooo) “Material Adverse Effect” means any material adverse effect on or change in: (i) the business, operations, properties, prospects, assets, or condition (financial or otherwise) of any Debtor; (ii) the ability of any Debtor to perform its obligations under this Agreement or the other DIP Credit Documents; (iii)
the legality, validity, or enforceability of any DIP Credit
Documents; or (iv) the DIP Collateral or the perfection or priority of any DIP Liens granted to the DIP Lender under this Agreement of the other DIP Collateral Documents. (ppp) “Maturity Date” means the earliest to occur of the date that is: (i)
January 31, 2018.
(ii) June 30, 2017, if the DIP Final Order has not been entered by the Bankruptcy Court prior to June 30, 2017; (iii)
the date on which any sale of substantially all of the Debtors’
assets occurs; (iv) the date on which a plan of reorganization for any of is the Debtors approved by the Bankruptcy Court becomes effective; and
-11-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 34 of 107
Desc Main
(v) the day on which the DIP Lender accelerates the DIP Obligations, or the DIP Obligations automatically and immediately accelerate, or the DIP Obligations otherwise become immediately due and payable pursuant to the terms of this Agreement. (qqq) “Maximum Commitment” has the meaning as set forth in the recitals. (rrr) “Multiemployer Plan” means any Employee Benefit Plan that is a “multiemployer plan” as defined in Section 3(37) or 4001(a)(3) of ERISA as to which any ERISA Affiliate incurs or otherwise has any obligation or liability contingent or otherwise. (sss) “Net Asset Sale Proceeds” means, for any Debtor, with respect to any Asset Sale, an amount equal to the cash payments, including any cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received, received by (or on behalf of) any Debtor from such Asset Sale less reasonable, customary, and documented out-of-pocket attorneys’ fees, accountants’ fees, investment banking fees, and brokerage, consultant, other reasonable customary and documented fees and expenses actually incurred in connection with such Asset Sale, and the payment of nonavoidable liens (if any) with respect to such Asset Sale. (ttt)
“Notices” has the meaning as set forth in Section 14(d)(i).
(uuu)
“Patriot Act” has the meaning given such term in Section 9(j).
(vvv) “PBGC” means the Pension Benefit Guaranty Corporation. (www) “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, that is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA. (xxx) “Permit” means any permit, license, approval, consent, permission, notice, franchise, confirmation, endorsement, waiver, certification, registration, qualification, clearance, or other authorization issued, granted, given, or otherwise made available by, or under the authority of, any Governmental Body or pursuant to any federal, state, local, or foreign Regulation. (yyy)
“Permitted Liens” has as the meaning as set forth in Section 8(a)(i)(2).
(zzz) “Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, other legal entities and Governmental Bodies. (aaaa) “Petition Date” has the meaning as set forth in the recitals. (bbbb) “Post-Petition” means following the Petition Date.
-12-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 35 of 107
Desc Main
(cccc) “Prepetition Payment” means a payment (by way of adequate protection or otherwise) of principal or interest or otherwise on account of any pre-petition debt or trade payables or other pre-petition “claims” (as defined in section 101(5) of the U.S. Bankruptcy Code) against the Debtors. (dddd) “Principal Office” means, for the DIP Lender, its office located at 300 Plaza Drive, Vestal, New York 13850, Attention: President, or such other office as the DIP Lender may on one or more occasions designate in writing to the Borrower. (eeee)
“Proposed Revised DIP Budget” has the meaning as set forth in Section
10(c). (ffff) “Regulation” means each applicable law, rule, regulation, order, guidance, or recommendation (or any change in its interpretation or administration) by any Governmental Body, and any request or directive (whether or not having the force of law) of any of those Persons, and each judgment, injunction, order, writ, decree, or award of any Governmental Body, arbitrator, or other Person. (gggg)
“Released Parties” has the meaning as set forth in Section 17(f)(ii).
(hhhh) “Real Property” means the land located at 200 State Route 94, Vernon, New Jersey, as more particularly described on Exhibit B annexed hereto, together with all buildings and other improvements located thereon, and all easements, rights, privileges and appurtenances (including, without limitation, any air or development rights, if any) belong or in any way appurtenant, and all of the estates, rights, title, interests, privileges, tenements, hereditaments, and appurtenances of any nature whatsoever, in any way belongs, relating or pertaining to the Property, either in law or in equity, in possession or expectancy, now of hereafter acquired, together with certain waterpark rides and equipment associated therewith. (iiii) “Securities” means any stock, shares, limited liability company membership interests, partnership interests, voting trust certificates, certificates of interest or participation in any profit sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares, or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing. (jjjj) “Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture, or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof. (kkkk) “Superpriority Claims” means, as additional protection for the DIP Lender, pursuant to section 364(c)(1) of the Bankruptcy Code, all of the DIP Obligations will -13-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 36 of 107
Desc Main
constitute allowed claims against the Debtors (without the need to file any proof of claim) with priority over any and all administrative expenses, diminution claims, and all other claims against the Debtors, now existing or hereafter arising, of any kind whatsoever, including, all administrative expenses of the kind specified in sections 503(b) and 507(b) of the Bankruptcy Code, and over any and all administrative expenses or other claims arising under sections 105, 326, 328, 330, 331, 503(a), 503(b), 506(c), 507(a), 507(b), 726, 1113 or 1114 of the Bankruptcy Code, whether or not such expenses or claims may become secured by a judgment lien or other non-consensual lien, levy or attachment, which allowed claims will be payable from and have recourse to all pre- and post-petition property of the Debtors and all proceeds thereof. (llll) “Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction, or withholding of any nature and whatever called, by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld, or assessed. (mmmm) “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in the State of New Jersey, provided that if by reason of mandatory provisions of law, the perfection, the effect of perfection or non-perfection or the priority of the DIP Liens is governed by the Uniform Commercial Code as in effect in a United States jurisdiction other than New Jersey, “UCC” will mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions of this Agreement relating to such perfection, effect of perfection or non-perfection or priority. (nnnn)
“Voting Stock” means with respect to any Person:
(i) one or more classes of Capital Stock of such Person having general voting powers to elect at least a majority of the board of directors, managers, or trustees of such Person, irrespective of whether at the time Capital Stock of any other class or classes have or might have voting power by reason of the happening of any contingency; and (ii) any Capital Stock of such Person convertible or exchangeable without restriction at the option of the holder thereof into Capital Stock of such Person described in Section 1(vvvv)(i). Section 2.
DIP Loan.
(a) The DIP Loan Draws. Subject to the terms and conditions as set forth in this Agreement and in the Financing Orders, the DIP Lender will make advances available to the Debtors pursuant to this Section 2(a) (the “DIP Loan”): (i)
Maturity Date.
(1) The DIP Loan will be repaid to the DIP Lender, and all other DIP Obligations will be paid to the DIP Lender, in full on or before the Maturity Date. (ii)
Initial Draw.
(1) Subject to the terms and conditions of this Agreement, Immediately upon entry by the Bankruptcy Court of the DIP Interim Order, $2,000,000 of the
-14-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 37 of 107
Desc Main
DIP Loan will be delivered to the Borrower, for the benefit of all of the Debtors to be used by the Debtors solely in accordance with the DIP Interim Order, DIP Budget, the use of proceeds as set forth in Section 2(b), and the other provisions of this Agreement (the “Initial Draw”). (iii)
Additional Draws.
(1) On or after the Final Order Entry Date, or the Business Day immediately succeeding such day, the Borrower may draw on one or more occasions, additional amounts under the DIP Loan to be used solely in accordance with the Financing Orders, DIP Budget, the use of proceeds as set forth in Section 2(b), and the other provisions of this Agreement. The Borrower may draw up to $4 million (the “Additional Draw”) in addition to the Initial Draw. (2) Upon an Event of Default and during the continuance of an Event of Default, the Borrower may not make or request advances under the Additional Draw, without the express written consent of the DIP Lender. (3) Amounts may be drawn under the Additional Draw if the Debtors’ cash on hand is less than the cash that the Debtors reasonably anticipate that they will require for the then next four week forward-looking period. If the condition as set forth in the prior sentence is satisfied, then the Borrower can request an amount under the Additional Draw that is the greater of: (A) the cash that the Debtors reasonably anticipate that they will require for the then next four week forward-looking period less the amount of the Debtors’ cash on hand at the time of the request. (4) Each draw under the Additional Draw must be on no less than 1 Business Day notice by the Borrower to the DIP Lender. (iv) The aggregate principal amount that may be drawn pursuant to this Agreement (i.e., the sum of the Initial Draw and the Additional Draws) is the Maximum Commitment. (v) Absent the written consent of the DIP Lender, once repaid, the DIP Loan amounts borrowed under this Agreement may not be reborrowed. (b)
Use of Proceeds.
(i) The DIP Loan and proceeds thereof will be used by the Debtors solely for the purposes as set forth in this Agreement and the DIP Budget. (ii)
None of the proceeds of the DIP Loan will be used in:
(1) connection with the investigation, including discovery proceedings, initiation, or prosecution of any claims, causes of action, adversary proceedings, or other litigation against the DIP Lender, including in connection with the validity of the DIP
-15-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 38 of 107
Desc Main
Liens granted to the DIP Lender; the foregoing will be without prejudice to any other rights of any Debtor; and (c) Evidence of Debt. The Debtors shall sign and deliver a promissory note (a “DIP Note”), mortgage, and other evidence of security in a form satisfactory to the DIP Lender to evidence the DIP Lender’s DIP Loan and Liens in the DIP Collateral. (d)
Interest on the DIP Loan; Payment.
(i) Applicable Rate. Except as otherwise set forth in this Agreement, the DIP Loan will bear interest on the unpaid principal amount thereof from the date made through repayment, whether by acceleration or otherwise, at the Applicable Rate. (ii)
Interest Calculation.
(1) Interest payable pursuant to this Agreement will be computed on the basis of a 360-day year for the actual number of days elapsed in the period during which it accrues. (2) In computing interest on the DIP Loan, the date of the making of an advance under the DIP Loan will be included, and the date of payment of the DIP Loan will be excluded. (iii) be payable in arrears on:
Cash Interest. Accrued and unpaid interest on the DIP Loan will
(1) the first day of each calendar month, and if such day is not a Business Day, the immediately preceding Business Day; (2) the date of any prepayment or payment of the DIP Loan principal, whether voluntary or mandatory, to the extent accrued on the amount being prepaid or paid; and (3) (e)
the Maturity Date.
Default Interest.
(i) Upon the occurrence and during the continuance of an Event of Default, the principal amount of the DIP Loan and, to the extent permitted by applicable law, any interest payments on the DIP Loan, any fees, or other amounts owed under this Agreement that are not paid when due, in each case, whether at stated maturity, by notice of prepayment, by acceleration, or otherwise, will thereafter bear interest (including interest, as provided in this Agreement, accruing during the Cases, whether or not such interest accrues or is recoverable against the Debtors after the filing of the Cases for purposes of the Bankruptcy Code or is an allowed claim in such proceeding) payable on written demand (or automatically upon the occurrence and during the continuation of an Event of Default) at the Applicable Rate plus 500 basis points.
-16-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 39 of 107
Desc Main
(ii) Payment or acceptance of the increased rate of interest provided for in Section 2(e)(i) is not a permitted alternative to timely payment and will not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of the DIP Lender. (iii) All amounts due and owing to the DIP Lender under this Agreement and the other DIP Credit Documents will be paid in Dollars, by wire transfer in immediately available funds, to the DIP Lender’s account as the DIP Lender may inform the Debtors on one or more occasions. Section 3. DIP Liens and Protections. Each of the Debtors hereby grants and conveys to the DIP Lender, subject to the entry of the Financing Orders, the following Liens and protections to secure the DIP Obligations: (a) pursuant to Section 364(c)(2) of the Bankruptcy Code, the DIP Lender is hereby granted and will be secured by a valid, binding, continuing, enforceable and fully perfected first priority security interest and Lien on all pre- or post-petition property of the Debtors and/or interest of the Debtors in property, whether existing on the Petition Date or thereafter acquired, that, on or as of the Petition Date or the date acquired (if after the Petition Date) is not subject to valid, perfected and non-avoidable Liens, including, all cash and cash collateral of the Debtors (whether maintained with the DIP Lender or otherwise) and investment of such cash and cash collateral, all inventory, all Accounts, other rights to payment whether arising before or after the Petition Date, all commercial tort claims, books and records, Investments, all Real Estate, all contracts, all properties, all Equipment, general intangibles, documents, instruments, all vehicles, all Deposit Accounts, all goods, work-in-progress, all fixtures, all finished goods, all chattel paper, investment property, in all leaseholds, all real properties), all patents, all copyrights, all trademarks, all trade names, other Intellectual Property, Capital Stock of Subsidiaries, other Capital Stock, and the proceeds rents, profits, accessions, substitution, insurance proceeds, warranty and indemnity proceeds, and all other product, offspring, or profits of all the foregoing (collectively, the “Secured Assets”);; (b) pursuant to Section 364 (c)(3) and (d)(1) of the Bankruptcy Code, the DIP Obligations owed to the DIP Lender will be secured by a valid, binding, continuing, enforceable, and fully perfected security interest and Lien in all the Secured Assets, junior in priority only to valid and perfected liens or security interests existing on the Petition Date, provided, however, the security interests and Liens granted herein shall be senior to any security interests and Liens of HSK Adventure, Inc. and Kuzari Investor 27335 LLC. (c) pursuant to Section 364(c)(l) of the Bankruptcy Code, all DIP Obligations will at all times constitute joint and several Superpriority Claims in the Cases. Section 4. Payment Obligations. On the Maturity Date, whether by acceleration or otherwise of any of the DIP Obligations under this Agreement or the other DIP Credit Documents, the DIP Lender will be entitled to immediate payment of the DIP Obligations without further application to, or order of, the Bankruptcy Court.
-17-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 40 of 107
Desc Main
Section 5. Use of Cash Collateral. Notwithstanding anything to the contrary contained in this Agreement, the Debtors will not be permitted to request any advance under the DIP Loan unless the Bankruptcy Court will have entered as part of the DIP Interim Order and thereafter the DIP Final Order or other order approving the use of cash collateral on terms acceptable to the DIP Lender in its sole discretion. Section 6. UCC Filings. The DIP Lender is authorized by the Debtors to file UCC financing statements with respect to all DIP Collateral of the Debtors in all jurisdictions as may be necessary or, in the opinion of the DIP Lender, desirable, to perfect the security interests created in such DIP Collateral pursuant to the DIP Collateral Documents and this Agreement. Section 7.
Other DIP Loan Terms.
(a) Repayment. The DIP Loan will be due and payable, and on the Maturity Date, the Debtors will repay all of the DIP Obligations, including all accrued and unpaid principal, interest fees, costs, expenses, and all other obligations under this Agreement and the DIP Credit Documents. (b)
Net Asset Sale Proceeds.
(i) No later than the second Business Day following the date of receipt by any Debtor of any Net Asset Sales Proceeds, the Debtors will remit the Net Asset Sale Proceeds to repay any amounts due to M&T and thereafter, to the extent M&T is repaid in full, to repay the DIP Loan; provided, however, that, so long as no Default or Event of Default will have occurred and be continuing or would result therefrom, the Debtors will not be required to prepay M&T or the DIP Loan pursuant to this Section 7(b) with the Net Asset Sale Proceeds of any transaction or series of related transactions under $10,000. (ii) Concurrent with any prepayment of the DIP Loan pursuant to Section 7(b), the Debtors will deliver to M&T and the DIP Lender a certificate of an Authorized Officer demonstrating the calculation of the amount of the applicable Net Asset Sale Proceeds. In the event that any Debtor will subsequently determine that the actual amount received exceeded the amount as set forth in such certificate, the Debtors will promptly make an additional prepayment of the DIP Loan in an amount equal to such excess, and the Debtors will concurrently therewith deliver to the DIP Lender a certificate of an Authorized Officer demonstrating the calculation of such excess. (c)
Application of Payments and Proceeds.
(i) Any amount required to be paid pursuant to this Agreement and all proceeds of the DIP Collateral, whether before or after an Event of Default, will be applied: (1)
first, to repay any fees, costs, or expenses payable to the
(2)
second, to repay any principal amounts outstanding in
DIP Lender; respect of the DIP Loan; and
-18-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 41 of 107
Desc Main
(3) third, to pay accrued and unpaid interest, and any other fees, costs, expenses, and other outstanding DIP Obligations. (ii) Payments to Include Accrued Interest. All payments in respect of the principal amount of the DIP Loan (whether mandatory or optional) will include payment of accrued interest on the principal amount being repaid or prepaid. (iii) Business Day. Whenever any payment to be made under this Agreement will be stated to be due on a day that is not a Business Day, such payment will be made on the immediate preceding Business Day. Section 8.
Conditions Precedent; Conditions Subsequent.
(a) Conditions Precedent; Closing Date. The obligation of the DIP Lender to make the DIP Loan and the other financial accommodations as set forth in this Agreement on the Closing Date, or any other date on which the Debtors request an advance of the DIP Loan, is subject to the satisfaction, or waiver, of the following conditions (such satisfaction or waiver demonstrated by the funding of a DIP Loan): (i) DIP Interim Order and DIP Final Order. The DIP Interim Order and the DIP Final Order, and all motions relating thereto, approving, and authorizing the DIP Loan, all provisions thereof and the priorities and DIP Liens granted under Bankruptcy Code section 364(c) and (d), as applicable, will be in form and substance satisfactory to the DIP Lender and the DIP Final Order will be entered no later than June 30, 2017, in a form and substance acceptable to the DIP Lender in its sole discretion and will include, among others, the following provisions: (1)
modifying the automatic stay to permit the creation and
perfection of the DIP Liens; (2) prohibiting any granting or imposition of Liens other than DIP Liens and any other liens that the DIP Lender may permit in its sole discretion; and (3) authorizing and approving the Debtors to sign and deliver the DIP Credit Documents to which each will be a party and the transactions contemplated therein, including, the granting of the super priority status, the first-priority, and DIP Liens upon the DIP Collateral, and the payment of all fees and expenses due to the DIP Lender. (ii) As of the Final Order Entry Date, the DIP Final Order will further state, among other things, that, upon entry of the DIP Final Order: (1) the DIP Lender and its counsel, advisors, and consultants, will each be entitled to the benefit of a “good faith� finding pursuant to section 364(e) of the Bankruptcy Code; and (2) permit the DIP Lender the right to credit bid, subject to section 363(k) of the Bankruptcy Code or applicable law, the DIP Loan, in whole or in part, in connection with any plan, sale, or other disposition of assets in the Cases.
-19-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 42 of 107
(iii)
Desc Main
Compliance with Financing Orders.
(1) No Financing Order will have been reversed, modified, amended, stayed, or vacated, in the case of any modification or amendment, in a manner, or relating to a matter, without the prior written consent of the DIP Lender. (2) The Debtors will be in compliance in all respects with the Financing Orders and all other orders of the Bankruptcy Court binding on them. (iv) Debtor-in-Possession. No trustee or examiner will have been appointed with respect to the Debtors or their properties. (v)
DIP Budget and Projections. The DIP Lender will have received: (1)
the DIP Budget;
(2) all information then required to be delivered to the DIP Lender pursuant to Section 10(b); and (3) such other information (financial or otherwise) as may be reasonably requested by the DIP Lender. (vi) Performance of Obligations. All costs, fees, expenses, and other compensation payable to the DIP Lender will have been paid to the extent due and payable in accordance with the terms of any Financing Order, this Agreement, and the other DIP Credit Documents, and the Debtors will have complied in all material respects with all of their other obligations to the DIP Lender as set forth in this Agreement and the other DIP Credit Documents. (vii) Litigation, Etc. There will not exist any action, suit, investigation, litigation, or proceeding pending (other than the Cases) or threatened in any court or before any Governmental Body that, in the opinion of the DIP Lender, affects any of the transactions contemplated by this Agreement, or that has or could be reasonably likely to have a Material Adverse Effect. (viii) Insurance/Assets. The DIP Lender will be named as loss payee (in respect of property/casualty insurance policies maintained by the Debtors) and additional insured (in respect of liability insurance policies maintained by Debtors), and that the DIP Lender will be provided with 30 days’ advance notice of non-renewal, cancellation, or amendment riders in respect of such policies. (ix) No Default. No Default or Event of Default will exist at the time of, or after giving effect to, the transactions contemplated on the Closing Date, including the advancing of the DIP Loan. (x) Representations and Warranties. All representations and warranties in the DIP Credit Documents and this Agreement will be true and correct in all material respects as of the Closing Date.
-20-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 43 of 107
Desc Main
(xi) DIP Credit Documents. The DIP Lender will have received signed original copies of each DIP Credit Document. (xii) Other Information. The DIP Lender will have received any other financial or non-financial information regarding any Debtor as the DIP Lender may reasonably request. (xiii) Certain Expenses. (1) The DIP Interim Order and the DIP Budget will provide for the Debtors to pay, on the terms and schedule provided therein, all fees and reasonable out-ofpocket expenses of the DIP Lender incurred in connection with this Agreement and the other DIP Credit Documents, including the reasonable fees, costs and expenses of its counsel (the “Formation Expenses”); the DIP Lender will submit the Formation Expenses, on one or more occasions, to the Debtors. The Debtors will promptly pay such expenses, but in no event, such payment will be made by the Debtors to the DIP Lender on or before seven (7) business days after such expenses are submitted to the Debtors by the DIP Lender. (xiv) No Material Adverse Change. Each Debtor will have continued to operate its businesses in the ordinary course through the Closing Date and, since the Petition Date, there will have been no Material Adverse Effect. (b) Conditions to each Advance under the DIP Loan. The obligations of the DIP Lender to make advances under the DIP Loan, is subject to the satisfaction or waiver, of the following conditions precedent: (i) Representations and Warranties. As of the date of request for a draw (the “DIP Draw Request Date”) of a DIP Loan (both before and after giving effect to the advance of the DIP Loan and application of its proceeds), the representations and warranties of the Debtors contained in the DIP Credit Documents will be true and correct in all material respects on and as of that DIP Draw Request Date, as if made on and as of that DIP Draw Request Date (except to the extent such representations and warranties specifically relate to an earlier date, such representations and warranties were true and correct in all material respects as of such earlier date). (ii) No Default or Event of Default. As of such DIP Draw Request Date, no event will have occurred and be continuing or would result from the consummation of the applicable DIP Loan (or the application of its proceeds) that would constitute an Event of Default or a Default. (iii) Available Commitments. After making the DIP Loan requested on such DIP Draw Request Date, the aggregate outstanding principal amount of the DIP Loan will not exceed the aggregate amount of the Maximum Commitment. (iv) Use of Proceeds. The Debtors will have confirmed in writing that the proceeds of such DIP Loan will be used only in accordance with the provisions of Section 2(b) and the other provisions of this Agreement and DIP Budget.
-21-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 44 of 107
Desc Main
(v) No Material Adverse Effect. Since the Petition Date, no Material Adverse Effect will have occurred after giving effect to the making of the DIP Loan in the reasonable opinion of the DIP Lender. (vi) Confirmation. Upon the request of the DIP Lender, the Debtors will provide a certificate signed by an Authorized Officer, in a form acceptable to the DIP Lender, that the conditions set forth in this Section 8(b) have been satisfied. (vii) Conditions Subsequent. The Debtors will satisfy each of the following conditions in the time period provided below therefor; provided, however that the DIP Lender may extend any such time period in its sole discretion. (1) Insurance Endorsements. The Debtors will, within 10 Business Days after the DIP Lender’s request, take all actions reasonably required by the DIP Lender to: (A) (x) make each insurance policy of the Debtors payable to the DIP Lender for the benefit of the DIP Lender, as their interests may appear, in case of loss, or (y) name the DIP Lender, for the benefit of the DIP Lender, as an additional insured under each such policy; and (B) deliver to the DIP Lender endorsements, reasonably satisfactory to the DIP Lender in its sole discretion, with respect to such policies. Section 9. Representations and Warranties. In order to induce the DIP Lender to enter into this Agreement and to make each DIP Loan, each Debtor hereby represents and warrants to the DIP Lender, on the Closing Date and on each DIP Draw Request Date as follows: (a)
Status; Authorization.
(i) Each Debtor is duly organized, validly existing, and, if applicable, in good standing under the laws of its jurisdiction of organization and is duly qualified and in good standing in every other jurisdiction where it is doing business except where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect and, subject to the entry by the Bankruptcy Court of the Financing Orders, the signing, delivery and performance by each Debtor of the DIP Credit Documents: (1)
are within its respective authority;
(2)
have been duly authorized; and
(3) does not conflict with or contravene its constitutive documents subject to the entry by the Bankruptcy Court of any Financing Order. (ii) The signing, delivery, and performance of any Debtors’ obligations, and exercise of their respective rights under the DIP Credit Documents, including, the making of the DIP Loan under this Agreement:
-22-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 45 of 107
Desc Main
(1)
does not require any consents that have not been obtained;
(2)
are not and will not be in conflict with or prohibited or
and prevented by: (A) (B) minute, or resolution (as applicable); or
any Regulation; any corporate governance document, corporate
(C) any instrument, agreement, or provision thereof, in each case binding on any of the Debtors or affecting any of their property. (b) Signing and Binding Effect. Subject to the entry by the Bankruptcy Court of any Financing Order, upon signing and delivery thereof, each DIP Credit Document will constitute the legal, valid, and binding joint and several obligation of each of the Debtors, enforceable in accordance with its terms. (c)
DIP Budget.
(i) After giving effect to the DIP Loan projected to be made under the DIP Budget, each of the Debtors believes, in good faith and in the exercise of its commercially reasonable judgment, that it has or will have sufficient capital and funds to pay and satisfy the expenses, obligations, and liabilities of the Debtors as set forth, as and when provided to be paid or satisfied, in the DIP Budget. (d)
Environmental Matters.
(i) None of the Debtors has any Environmental Liabilities at any of their properties or locations, which individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. (ii)
The Debtors:
(1) applicable Environmental Laws;
have operated their business in compliance with all
(2) has obtained all Environmental Permits required by applicable Environmental Laws for the ownership and operation of their properties, and all such Environmental Permits are in full force and effect or such Person has made all appropriate filings for issuance or renewal of such Environmental Permits; (3) are not aware of any acts, omissions, events or circumstances that may interfere with or prevent continued compliance with the Environmental Laws and Environmental Permits referred to in Section 9(e)(ii)(1) or Section 9(e)(ii)(2);
-23-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 46 of 107
Desc Main
(4) has not received notice of any asserted or threatened claim, action, suit, proceeding, hearing, investigation, or request for information relating to any environmental matter; and (5) has not received notice from any Governmental Body that the Debtors are a potentially responsible party under any Environmental Law at any disposal site containing Hazardous Materials, nor received any notice that any Lien under any Environmental Law against any property of the Debtors exists, which individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. (e) Insurance. The policies, binders, or self-insurance programs for fire, liability, product liability, workmen’s compensation, vehicular and other insurance currently held by or on behalf of the Debtors insure its material properties and business activities against such losses and risks as are adequate to protect its properties in accordance with customary industry practice when entered into or renewed (f)
Intellectual Property.
(i) The Debtors own or license or otherwise have the right to use all Intellectual Property necessary for the operation of their business as presently conducted or proposed to be conducted. No event has occurred which permits or would permit after notice or passage of time or both, the revocation, suspension or termination of such rights. (ii) To the best of the Debtors’ Knowledge, no slogan or other advertising device, product, process, method, substance or other Intellectual Property or goods bearing or using any Intellectual Property presently contemplated to be sold by or employed by the Debtors infringes any patent, trademark, servicemark, tradename, copyright, license or other Intellectual Property owned by any other Person presently and no claim or litigation is pending or threatened against or affecting the Debtors contesting its right to sell or use any such Intellectual Property. (g)
Absence of Events of Default and Material Adverse Effect.
(i) Since the Petition Date, no event has occurred and is continuing and no condition exists which constitutes a Default or Event of Default (ii)
Since the Petition Date, no Material Adverse Effect has occurred.
(h) Absence of Other Defaults. The Debtors have complied and are in compliance in all respect with all laws, except for such instances of noncompliance that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. (i) USA Patriot Act; Etc. Each Debtor that is subject to the USA Patriot Act (Title III of Pulp. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”) is in compliance in all material respects therewith. No part of the proceeds of the extensions of credit under this Agreement will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office or -24-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 47 of 107
Desc Main
anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the federal Foreign Corrupt Practices Act of 1977. Section 10.
Affirmative Covenants.
(a) Until payment in full of all DIP Obligations (other than indemnification obligations for which a claim does not exist as of the applicable date of determination), each Debtor will performall the covenants in this Agreement, including this Section 10 and Section 11, and the other DIP Credit Documents applicable to it. (b) Reporting Requirements. Unless such requirements are waived by the DIP Lender, the Debtors will furnish to the DIP Lender: (i) Commencing on Monday, May 29, 2017, and every other Monday thereafter, a report setting forth, in a form and in sufficient detail satisfactory to the DIP Lender, a comparison of actual receipts and expenses to budgeted receipts and expenses in the then current DIP Budget for the preceding two week ending the prior Thursday. (ii) As soon as available and in any event within 25 days after the end of each calendar month, a report setting forth, in each case in a form and in sufficient detail satisfactory to the DIP Lender: (1)
balance sheets of each Debtor as of the end of such month;
(2) statements of income and cash flows of each Debtor for such month, and for the period commencing at the end of the previous Fiscal Year and ending with the end of such month; and (3) profit and loss statements of each Debtor for such month and for the period commencing at the end of the previous Fiscal Year and ending with the end of such month, in each case, prepared in accordance with GAAP (subject to the absence of footnote disclosures and to normal year-end adjustments). (iii) As soon as possible and in any event within one Business Day after the occurrence of any Default or Event of Default, a statement of an Authorized Officer of the Debtors setting forth details of such Default or Event of Default and the action that the Debtors have taken and propose to take with respect thereto. (iv) Within 5 days after any Debtor obtains Knowledge thereof, a statement of an Authorized Officer of the Debtors setting forth details of: (1) any litigation or governmental proceeding pending or threatened in writing against any Debtor; and (2) any other event, act or condition that has or could reasonably be expected to have a Material Adverse Effect.
-25-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 48 of 107
Desc Main
(v) Promptly and in any event within five (5) Business Days after the existence of any of the following conditions, a duly executed certificate of an Authorized Officer of the Debtors specifying in detail the nature of such condition and, if applicable, the proposed response of the Debtors thereto: (1) receipt by any Debtor of any written communication from a Governmental Body or any written communication from any other Person or other source of written information, including (to the extent not privileged) reports prepared by any Debtor, that alleges or indicates that any Debtors is not in compliance in all material respects with applicable Environmental Laws; (2) any Debtor obtains Knowledge that there exists any Environmental Liability or threatened in writing against any Debtor; or (3) any Debtor obtains Knowledge of any release, threatened release, emission, discharge or disposal of any Hazardous Materials or obtains Knowledge of any material noncompliance with any Environmental Laws that, in either such case, could reasonably be expected to form the basis for an Environmental Liability against any Debtor. (vi) As promptly as reasonably practicable on one or more occasions following the DIP Lender’s request therefor, such other information regarding the operations, business affairs and financial condition of Debtors as the DIP Lender may reasonably request. (c) DIP Budget. The Debtors, on one or more occasions, may propose a revised DIP Budget (the “Proposed Revised DIP Budget”) to replace or amend the then current DIP Budget. If the Debtors seek to submit a Proposed Revised DIP Budget for review and consideration by the DIP Lender, the Debtors will deliver such Proposed Revised DIP Budget to the DIP Lender and respond to inquiries by the DIP Lender and its advisors concerning the Proposed Revised DIP Budget. If and to the extent that the DIP Lender approves of such Proposed Revised DIP Budget, the DIP Lender will deliver such written approval to the Borrower and from and after the delivery of such written approval, the Proposed Revised DIP Budget will be deemed, and will be, the DIP Budget for the purposes of this Agreement. (d)
Use of Proceeds.
(i) The Debtors will use the proceeds of the DIP Loan only as permitted by any Financing Order, this Agreement (including Section 2(b)) and the DIP Budget. (e)
Further Assurances.
(i) The Debtors will cooperate with the DIP Lender and take such action, sign such documents, and provide such information as the DIP Lender may, on one or more occasions, reasonably request in order to effect the transactions contemplated by and the purposes and intent of the DIP Credit Documents. (ii) The Debtors will promptly, upon request by the DIP Lender, correct any defect or error that may be discovered in any DIP Credit Documents or in the execution, acknowledgment, or recordation of the DIP Credit Documents. -26-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 49 of 107
Desc Main
(iii) Promptly upon request by the DIP Lender, the Debtors will execute, authorize, acknowledge, deliver, record, file, and register, any and all such further acts, deeds, conveyances, documents, security agreements, pledge agreements, mortgages, deeds of trust, trust deeds, assignments, financing statements and continuations, notices of assignment, transfers, certificates, assurances, and other instruments as the DIP Lender may require on one or more occasions in order to carry out more effectively the purposes and intent of each DIP Credit Document. (iv) Without limiting the foregoing, the Debtors, will authorize, and hereby authorize the DIP Lender to undertake (without any further action, notice, or consent of the Debtors), the filing by the DIP Lender of mortgages, UCC-1 financing statements and other similar documents for all jurisdictions deemed necessary or desirable by the DIP Lender; and (f)
Insurance.
(i) Each Debtor will maintain, at its respective expense, and keep in effect with responsible insurance companies, such liability insurance for bodily injury and thirdparty property damage as is customary in the case of companies engaged in the same or similar business or having similar properties, similarly situated. (ii) Each Debtor will, keep and maintain, at its expense, its material real and personal property insured against loss or damage by fire, theft, explosion, spoilage and all other risks ordinarily insured against by other owners or users of such properties in similar businesses in an amount equal to the full replacement or cash value thereof, subject to deductible amounts which the Debtors, in its reasonable judgment, deems prudent. (g) Existence; Conduct of Business. Each Debtor will do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, Permits (including, Environmental Permits) privileges, franchises, patent, copyrights, trademarks and trade names material to the conduct of its business, except to the extent that failure to so act, which either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. (h) Compliance with Laws. Except as otherwise excused by the Bankruptcy Code, the Debtors will comply with all laws (including, all Environmental Laws), rules, licenses, Permits, Regulations and orders of any Governmental Body applicable to it or its property, except where failures to do so, in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. (i) Subsidiaries. If any Subsidiary is formed or acquired by the Debtors after the Agreement Date, the Debtors will, prior to the date upon which such Subsidiary is formed or acquired, notify the DIP Lender thereof and immediately following such formation or acquisition, cause any Capital Stock in, assets owned or leased by, or Indebtedness owned by or on behalf, of such Subsidiary to be added to the DIP Collateral. (j) Mortgages. At the request of the DIP Lender, the Debtors will sign and deliver to the DIP Lender, mortgages, deeds of trust, or similar instruments in form and substance satisfactory to the DIP Lender as the DIP Lender will deem necessary or appropriate to -27-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 50 of 107
Desc Main
grant, evidence and perfect a first priority Lien in such property in favor of the DIP Lender, subject only to the existing mortgages held by M&T, together with such other assignments, conveyances, agreements, surveys, appraisals, title insurance policies, environmental assessments, and other documents, in each case, as the DIP Lender will deem necessary or appropriate in connection with same, provided, however, the entry of the Financing Orders shall, without the need for any other action on behalf of the DIP Lender or Debtors, be sufficient to perfect the Liens granted pursuant to this Agreement. Section 11.
Negative Covenants/Financial Covenants.
(a) Each Debtor will, until all of the DIP Obligations (other than indemnification obligations for which a claim does not exist as of the applicable date of determination) have been paid in full, perform, all covenants in this Agreement including this Section 11. (b) Indebtedness. Each Debtor will not, incur, create, assume, become or be liable in any manner with respect to, or permit to exist, any Indebtedness, or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly), any Indebtedness, performance, obligations or dividends of any other Person, except: (i)
the DIP Obligations;
(ii) purchase money Indebtedness (including Capital Leases) to the extent secured by purchase money security interests in Equipment (including Capital Leases) not to exceed $10,000 in the aggregate at any time outstanding so long as such security interests do not apply to any property of the Debtors other than the Equipment so acquired, and the Indebtedness secured thereby does not exceed the cost of the Equipment so acquired, as the case may be; (iii) guarantee, indemnity, reimbursement and contribution agreements and similar agreements entered into in the ordinary cause in connection with performance bonds issued for the account of any Debtor; and (iv) unsecured trade debt of any Debtor incurred in the ordinary course of business after the Petition Date. Section 12. Events of Default. Any one or more of the following events which occur and be continuing will constitute an “Event of Default�: (a) Failure to Make Payments When Due. Failure by the Borrower to pay any of the DIP Obligations, including failure by the Borrower pay when due any installment of principal of, or interest on, the DIP Loan, whether at stated Maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise, or any fee or any other amount due under this Agreement, and such failure, except in respect of principal and interest, is continuing for three (3) Business Days after the date due therefor. (b) Breach of Certain Covenants. Failure of any Debtor to perform or comply with any material term or material condition contained in Section 10 and Section 11, such failure -28-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 51 of 107
Desc Main
is continuing five (5) business days after the date such term or condition should have been performed or complied with; provided that such 5 day period will not apply in the case of: (i) any failure to observe any such covenant which is not capable of being cured at all or within such 5 day period or which has been the subject of a prior failure within a two (2) month period; or (ii)
an intentional breach by the Debtors or any Debtor of any such
covenant. (c) Breach of Representations, Etc. Any representation, warranty, certification, or other statement made or deemed made by any Debtor in any DIP Credit Documents, or in any statement or certificate at any time given by any Debtor in writing, pursuant to this Agreement will be false in any material respect as of the date made or deemed made. (d) Other Defaults Under DIP Credit Documents. Any Debtor will default in the material performance, of or material compliance with, any term contained in this Agreement and the other DIP Credit Documents, other than any such term referred to in any other section of this Section 12, and such default will not have been remedied or waived within five (5) business days after the earlier of: (i) the date upon which an Authorized Officer of the Debtors had Knowledge of such default; and (ii)
the date upon which written notice thereof is given to the Debtors
by the DIP Lender. (e)
Change of Control. A Change of Control occurs.
(f) DIP Collateral Documents and other DIP Credit Documents. At any time after the signing and delivery thereof: (i) this Agreement or any DIP Credit Documents ceases to be in full force and effect (other than by reason of a release of DIP Collateral in accordance with the terms of this Agreement or thereof or the satisfaction in full of the DIP Obligations in accordance with the terms of this Agreement) or will be declared null and void, or the DIP Lender will not have or will cease to have a valid and perfected DIP Lien in any material portion of DIP Collateral; (ii) any Debtor will contest the validity or enforceability of any DIP Credit Documents in writing or deny in writing that it has any further liability under any DIP Credit Documents to which it is a party. (g)
Other Events of Default.
(i) Any Debtor files a plan of reorganization or liquidation, or enters into any transaction for the sale of all or substantially all of the Debtors’ assets that does not provide for payment in full in cash of the DIP Obligations.
-29-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 52 of 107
Desc Main
(ii) A trustee, receiver, examiner, or responsible officer with enlarged powers relating to the operation of the business of any Debtor (powers beyond those set forth in sections 1106(a)(3) and (a)(4) of the Bankruptcy Code), will be appointed in the Cases. (iii) Any other Lien will be granted with respect to any of the DIP Collateral without the prior written consent of the DIP Lender unless at the time such Lien is granted all DIP obligations are indefeasibly paid in full in cash. (iv) The Bankruptcy Court will enter an order granting relief from the automatic stay to any creditor or party in interest: (1)
to permit the enforcement of any Lien on any material
assets of any Debtor; or (2) to permit other actions that the DIP Lender may, in its reasonable discretion, deem to have a Material Adverse Effect. (v) Any material provision of the DIP Credit Documents will cease to be valid or binding on any Debtor, or any Debtor will so assert in any pleading filed in any court. (vi) Any order will be entered reversing, amending, supplementing, staying, vacating, or otherwise modifying in any material respect a DIP Interim Order or the DIP Final Order without the prior written consent of the DIP Lender. (vii) The exclusive period for each Debtor to file a plan of reorganization under section 1121(b) of the Bankruptcy Code expires or is terminated. (viii) The DIP Final Order will not have been entered by the Bankruptcy Court by June 30, 2017. Section 13.
Remedies.
(a) Upon and after the occurrence of an Event of Default, the DIP Lender may take any or all of the following actions, at the same or different times, in each case without further order of or application to the Bankruptcy Court (provided, that with respect to the enforcement of Liens or other remedies with respect to the DIP Collateral the DIP Lender will provide the Borrower (with a copy to the United States Trustee and counsel to any official committee that may be appointed in the Cases) with five (5) Business Days’ written notice prior to taking the action contemplated thereby; in any hearing after the giving of the aforementioned notice, the only issue that may be raised by any party in opposition thereto being whether, in fact, an Event of Default has occurred and is continuing): (i) declare the DIP Commitment terminated, whereupon such DIP Commitment will terminate immediately; (ii) declare due the principal and any accrued interest in respect of the DIP Loan owing with respect thereto under this Agreement, whereupon the same will become,
-30-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 53 of 107
Desc Main
forthwith immediately due and payable without presentment, demand, protest, or other notice of any kind, all of which are hereby waived by each Debtor; and (b)
In addition, upon the occurrence of an Event of Default, the DIP Lender
may: (i) bring any lawsuit, action, or other proceeding permitted by law for the specific performance of, or injunction against any violation of, any DIP Credit Documents and may exercise any power granted under or to recover judgment under any DIP Credit Documents, and (ii) exercise any other right or remedy permitted by applicable law , or otherwise available to the DIP Lender at law, in equity or otherwise. (c) No remedy in this Agreement conferred upon the DIP Lender is intended to be exclusive of any other remedy, and each and every remedy will be cumulative and will be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute or any other provision of law. (d) Anything contained in any of the DIP Credit Documents to the contrary notwithstanding, the Debtors and the DIP Lender hereby acknowledged that in the event of a foreclosure or other sale by the DIP Lender or Debtors pursuant to a public or private sale, the DIP Lender may be the purchaser of any or all of such DIP Collateral and at any such sale will be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the DIP Collateral sold at any such public sale or any sale under Section 363 of the Bankruptcy Code or any reorganization, to use and apply any of the DIP Obligations as a credit on account of the purchase price for any DIP Collateral payable by the DIP Lender at such sale. (e) The DIP Lender will not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default under this Agreement unless the DIP Lender has received notice from any of the Debtors referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default�. Section 14.
Miscellaneous.
(a) Amendments and Waivers; Release of DIP Collateral. No amendment, modification, termination (other than pursuant to the express terms of the DIP Credit Documents), or waiver of any provision of the DIP Credit Documents, or consent to any departure by any Debtor therefrom, will be effective without the written consent of the DIP Lender. (b)
Effect of Notices, Waivers, or Consents.
(i) Any waiver or consent will be effective only in the specific instance and for the specific purpose for which it was given.
-31-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 54 of 107
Desc Main
(ii) No notice to or demand on any Debtor will entitle any Debtor to any other or further notice (except as otherwise specifically required under this Agreement or under any of the DIP Credit Documents) or demand in similar or other circumstances. (iii) Any amendment, modification, termination, waiver, or consent affected in accordance with this Section 14(b)(ii) will be binding upon the DIP Lender. (c) Certain DIP Collateral Releases. The Debtors are entitled to receive, and the DIP Lender is authorized to effect (and the DIP Lender will so effect), the release of DIP Collateral that is the subject of an Asset Sale, or any other sale, transfer or other disposition, in each case, expressly permitted by, and consummated in accordance with, this Agreement from the DIP Lien, so long as the proceeds (including the Net Asset Sale Proceeds) of such Asset Sale or other sale, transfer or disposition that are required to be used to prepay the DIP Loan are in fact so prepaid as required by this Agreement. (d)
Notices.
(i) All notices, requests, demands, and other communications to any party or given under any DIP Credit Documents (collectively, the “Notices�) will be in writing and delivered personally, by nationally recognized overnight courier (e.g., Federal Express) or by USPS First Class mail, Certified Mail Return Receipt Requested, to the parties at the following address: If to the Debtors:
Mountain Creek Resort, Inc. 200 State Route 94 Vernon, New Jersey 07462 Attention: Jeffrey Koffman with a copy to (which will not constitute notice): Lowenstein Sandler LLP 65 Livingston Avenue Roseland, New Jersey, 07068 Attention: Jeffery Prol, Esq. jprol@lowenstein.com
-32-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 55 of 107
If to the DIP Lender:
Desc Main
MC DIP Funding LLC Attn: President 300 Plaza Drive Vestal, NY 13850 With a copy to Tarter Krinsky & Drogin LLP 1350 Broadway, 11th Floor New York, NY 10018 Attn: Scott S. Markowitz, Esq. Alex Spizz, Esq. smarkowitz@tarterkrinksy.com aspizz@tarterkrinsky.com
(ii) All Notices will be deemed delivered when actually received. Each of the parties will hereafter notify the other in accordance with this Section 14(d) of any change of address to which notice is required to be delivered. (e) Expenses. Whether or not, the transactions contemplated by this Agreement will be consummated or the DIP Loan will be made, each Debtor agrees to pay promptly subject to entry of any Financing Order, upon written demand from the DIP Lender, and without the requirement for Bankruptcy Court approval. (i)
The Formation Expenses as set forth in Section 8(a)(xiii)(1).
(ii) All the actual costs and reasonable fees, expenses, and disbursements incurred by the DIP Lender in managing, monitoring, servicing, or enforcing any of the DIP Obligations of, or in collecting any payments due from, any Debtor under this Agreement or under the other DIP Credit Documents by reason of such Default or Event of Default (including in connection with the sale of, collection from, or other realization upon, any of the DIP Collateral or in connection with any negotiations, reviews, refinancing, or restructuring of the credit arrangements provided under this Agreement, including, but not limited to reasonable attorneys’ fees. (f) Assignments. The DIP Lender may assign (each, an “Assignment”) to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of the DIP Loan and the DIP Note, as the case may be. Such Assignment may be made without the consent of the Debtors. (g)
Participations.
(i) The DIP Lender may sell participations (each, a “Participation”) to one or more Persons (each, a “Participant”) in all or a portion of the DIP Lender’s rights and obligations under this Agreement (including all or a portion of the DIP Lender’s DIP Loan and DIP Note, as the case may be); provided that:
-33-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 56 of 107
(1)
Desc Main
the DIP Lender’s obligations under this Agreement will
remain unchanged; (2) the DIP Lender will remain solely responsible to the Debtors for the performance of such obligations; and (3) the Debtors will continue to deal solely and directly with the DIP Lender in connection with the DIP Lender’s rights and obligations under this Agreement. (h) Integration. This Agreement, the Financing Orders, and the other DIP Credit Documents contain and constitute the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all prior negotiations, agreements, and understandings whether written or oral, of the parties to this Agreement. Certain provisions of the DIP Credit Documents may be modified by the Financing Order, in the event of any inconsistency between any of the DIP Credit Documents and the Financing Orders, the provisions of the Financing Orders will govern. (i) No Course of Dealing. No course of dealing and no delay on the part of any party to this Agreement in exercising any right, power, or remedy conferred by this Agreement will operate as a waiver thereof or otherwise prejudice such party’s rights, powers, and remedies conferred by this Agreement, or will preclude any other or further exercise thereof or the exercise of any other right, power, and remedy. (j) No Waiver; Remedies. No failure or delay by any party in exercising any right, power, or privilege under this Agreement or any of the other DIP Credit Documents will operate as a waiver of such right, power, or privilege. A single or partial exercise of any right, power, or privilege will not preclude any other or further exercise of the right, power, or privilege or the exercise of any other right, power, or privilege. The rights and remedies provided in the DIP Credit Documents will be cumulative and not exclusive of any rights or remedies provided by law. (k)
Counterpart; Electronic Signature. This Agreement may be signed:
(i) in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same Agreement and binding on all of the parties to this Agreement, notwithstanding that all of the parties are not a signatory to the original or to the same counterpart; and (ii) via facsimile transmission or other electronic transmission which provides an accurate copy of this Agreement, which such copy will be deemed an original. Section 15.
Third Party Beneficiaries.
(a) Except for the parties to this Agreement and the Released Parties, this Agreement is not intended, and will not be deemed, to:
-34-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 57 of 107
Desc Main
(i) confer any rights or remedies upon any Person other than the parties to this Agreement and their respective successors and permitted assigns; or (ii)
otherwise create any third party beneficiary to this Agreement.
(b) Each Released Party is an intended third party beneficiary of this Agreement and is entitled to such rights and benefits as if such Indemnified Person were a party to this Agreement. Section 16.
Attorney-In-Fact.
(a) Each Debtor hereby constitutes and appoints the DIP Lender, the true and lawful attorney-in-fact of the Debtors, with full power and authority in the place and stead of the Debtors and in the name of the Debtors, to enforce all rights, interests, and remedies of the Debtors with respect to the DIP Collateral or enforce all rights, interests, and remedies of the DIP Lender under this Agreement; provided, however, that the DIP Lender will not exercise any of the aforementioned rights unless an Event of Default has occurred and is continuing and has not been waived or cured in accordance with this Agreement and the other DIP Credit Documents. (b) The power of attorney, as set forth in this Section 16, is a power coupled with an interest and will be irrevocable. Section 17. Jury Trial.
Governing Law; Submission to Exclusive Jurisdiction; Venue; Waiver of
(a) Subject to the jurisdiction of the Bankruptcy Court, this Agreement, and the other DIP Credit Documents, and the rights and obligations of the parties under this Agreement and thereunder will be construed in accordance with, and be governed by, the internal law of the State of New Jersey, without regard to conflict of laws rules and principles thereunder, and, to the extent applicable, the Bankruptcy Code. (b) Any legal action or proceeding with respect to this Agreement or any other DIP Credit Document will be brought exclusively in the Bankruptcy Court, and, by signing and delivery of this Agreement or any other DIP Credit Document: (i) Each Debtor hereby irrevocably accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid court. (ii) Each Debtor hereby further irrevocably waives any claim that any such courts lack personal jurisdiction over such Debtor, and agrees not to plead or claim, in any legal action proceeding with respect to this Agreement or any other DIP Credit Document brought in the aforementioned court, that such court lack personal jurisdiction over any Debtor. (c) JURY WAIVER. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
-35-
Case 17-19899-SLM
(d)
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 58 of 107
Desc Main
Severability.
(i) If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. (ii) Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties to this Agreement will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated by this Agreement and the other DIP Credit Documents are fulfilled to the extent possible. (e) Survival. All representations, warranties, covenants, agreements, and conditions contained in or made pursuant to this Agreement and the other DIP Credit Documents will survive: (i)
the making of the DIP Loan and the payment of the DIP
Obligations; and (ii) the performance, observance, and compliance with the covenants, terms, and conditions, express or implied, of all DIP Credit Documents, until the due and punctual: (1)
indefeasible payment of the DIP Obligations; and
(2) performance, observance, and compliance with the covenants, terms, and conditions, express or implied, of this Agreement and all of the other DIP Credit Documents. (f)
Releases.
(i) Each Debtor hereby acknowledges that it has no defense, counterclaim, offset, cross-complaint, claim, or demand of any kind or nature whatsoever that can be asserted to reduce or eliminate all or any part of its liability to repay the DIP Obligations. (ii) Each Debtor hereby voluntarily and knowingly releases and forever discharges the DIP Lender, its Affiliates, and each of their respective agents, employees, successors, and assigns (collectively, the “Released Parties�) from all possible claims, demands, actions, causes of action, damages, costs, expenses, obligations, debts and liabilities whatsoever, whether known or unknown, anticipated or unanticipated, suspected or unsuspected, fixed, contingent or conditional, or at law or in equity, in any case originating in whole or in part on or before this Agreement is signed that such Debtor may now or hereafter have against the Released Parties, if any, irrespective of whether any such claims arise out of contract, tort, violation of law or regulations, or otherwise, and that arise from the DIP Loan.
-36-
Case 17-19899-SLM
(g)
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 59 of 107
Desc Main
Modifications.
(i) Except as specifically contemplated in the Financing Orders, the Liens, lien priority, administrative priorities, and other rights, and remedies granted to the DIP Lender pursuant to this Agreement and the Financing Orders (specifically, including the existence, perfection, and priority of the Liens provided in this Agreement and therein and the administrative priority in this Agreement and therein) will not be modified, altered, or impaired in any manner by any other financing or extension of credit or incurrence of Indebtedness by any Debtor (pursuant to section 364 of the Bankruptcy Code or otherwise), or by any dismissal or conversion of the Cases, or by any other act or omission whatsoever (other than in connection with any asset disposition permitted under this Agreement). Without limitation, notwithstanding any such order, financing, extension, incurrence, dismissal, conversion, act, or omission: (1) except for any “carve out� having priority over the DIP Obligations, no costs or expenses of administration which have been or may be incurred in the Cases or any conversion of the same or in any other proceedings related thereto, and no priority claims, are or will be prior to or on a parity with any claim of the DIP Lender against any Debtor in respect of any DIP Obligation; and (2) the Liens and security interests granted under this Agreement and the other DIP Credit Documents will continue to be valid and perfected and with the specified priority without the necessity that financing statements be filed or that any other action be taken, or document or instrument registered or delivered, under applicable nonbankruptcy law. (ii) Notwithstanding any failure on the part of any Debtor or the DIP Lender to perfect, maintain, protect, or enforce the DIP Liens and security interests in the DIP Collateral granted under the DIP Collateral Documents, the Financing Orders will automatically, and without further action by any Person, perfect such DIP Liens and security interests against the DIP Collateral of the Debtors. (h) Lead Debtor. The Borrower is authorized to act for, and on behalf of, all of the Debtors. Any act, direction, notice, waiver, or other consent provided by the Borrower or an Authorized Officers of the Borrower will be deemed, and will be, the act, direction, notice, waiver, or other consent of each Debtor. (i) Strict Construction. The language used in this Agreement will be deemed the language chosen by the parties to express their collective intent; no rule of strict construction will be applied against any party. (j)
Interpretation.
(i) The headings contained in this Agreement are for convenience of reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.
-37-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 60 of 107
Desc Main
(ii) Whenever the words “include,” “includes,” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation” (whether or not such words or similar words are used). (iii) The meanings given to terms defined in this Agreement will be equally applicable to both the singular and plural forms of such terms. (iv) Unless otherwise indicated to the contrary in this Agreement by the context or use in this Agreement, the words, “in this Agreement,” “hereto,” “of this Agreement” and words of similar import refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement. (v) Words importing the masculine gender will also include the feminine and neutral genders, and vice versa. (vi) Any reference to an accounting term that is not otherwise defined in this Agreement will have the meaning ascribed to such accounting term under GAAP. (vii) Unless otherwise specified, all accounting terms used in this Agreement will be interpreted, all accounting determinations and computations under this Agreement will be made, and all financial statements required to be delivered under this Agreement will be prepared, in accordance with GAAP. (viii) Any terms used in this Agreement which are defined in the UCC will be construed and defined as set forth in the UCC, unless otherwise defined in this Agreement. (ix)
The words “will” and “shall” have the same meaning and effect.
(x)
The word “or” is not exclusive and is deemed to have the meaning
“and/or.” (xi) The word “any” is not limiting and means “any and all” unless the context clearly requires or the language provides otherwise. (xii) Unless the context otherwise requires, any reference in this Agreement to any Person will be construed to include such Person’s successors, assigns, as a debtor, as a debtor-in-possession, and any receiver or trustee for such Person. (xiii) The Exhibits referred to in this Agreement will be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim in this Agreement. [signature pages follow]
-38-
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 61 of 107
Desc Main
IN WITNESS WHEREOF, the parties to this Agreement have signed this Agreement as of the Agreement Date. Mountain Creek Resort, Inc. (on behalf of itself and the other Debtors)
By: _______________________________ Name: Title: MC DIP Funding LLC
By: _______________________________ Name: Title:
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 62 of 107
EXHIBIT A DIP BUDGET
Exhibit A
Desc Main
MCRI DIP
Case 17-19899-SLM
Week of Fiscal Year Week of BK period Beginning Period (Friday) Ending Period (Thursday) IR Row 1 Row 18 Row 19 Row 20 Row 21 Row 22 Row 23 Row 24 Row 25 Row 26 Row 27 Row 28 Row 29 Row 30 Row 31 Row 32 Row 33 Row 34 Row 35 Row 36 Row 37 Row 38 Row 39 Row 40 Row 41 Row 42 Row 43 Row 44 Row 45 Row 46 Row 47 Row 48 Row 49 Row 50 Row 51 Row 52 Row 53 Row 54 Row 55 Row 56 Row 57 Row 58 Row 59 Row 60 Row 61 Row 71 Row 72 Row 73 Row 74 Row 75 Row 76 Row 77 Row 78 Row 79 Row 80 Row 81 Row 82 Row 83 Row 84 Row 85 Row 86 Row 87 Row 88 Row 89 Row 91 Row 92
Cash Receipts Total Cash Receipts Cash Disbursements Payroll HMGG/RT94 Payroll HMGG/RT94 Payroll (inflow) Payroll ER Payroll Taxes ADP - PR Processing & HR Fees NW Trust Contrib 401K Insurance - Health Insurance
3 1 15-May-17 18-May-17 Projected 100,656 0%
4 2 19-May-17 25-May-17 Projected 108,083 0%
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 63 of 107 WP Opens 5 3 26-May-17 1-Jun-17 Projected 199,984 0%
6 4 2-Jun-17 8-Jun-17 Projected 188,824 0%
7 5 9-Jun-17 15-Jun-17 Projected 206,966 0%
8 6 16-Jun-17 22-Jun-17 Projected 334,196 0%
9 7 23-Jun-17 29-Jun-17 Projected
10 8 30-Jun-17 6-Jul-17 Projected
11 9 7-Jul-17 13-Jul-17 Projected
342,089 0%
907,297 0%
781,429 0%
Desc Main
12 10 14-Jul-17 20-Jul-17 Projected 968,604 0%
13 11 21-Jul-17 27-Jul-17 Projected
14 12 28-Jul-17 3-Aug-17 Projected
15 13 4-Aug-17 10-Aug-17 Projected
Admin Period Total 13 Week Total Projected
764,597 0%
1,140,997
749,984
6,793,707
222,900 (222,900) 2,383,002 248,917 24,575 47,421 135,000 233,609 678,381 55,000 139,973 762,486 122,029 90,349 785,069 80,000 351,600 80,200 145,665 40,000 136,000 48,591 23,100 8,169 76,602 50,000 996,554 7,742,292 (948,585) 966,717
37,150 (37,150) 224,714 22,471 2,336 6,774 -
-
37,150 (37,150) 229,698 22,970 2,085 6,774 45,000
-
37,150 (37,150) 250,526 25,053 3,592 6,774 -
-
37,150 (37,150) 371,558 39,014 4,141 6,774 -
45,000
37,150 (37,150) 445,387 48,993 4,141 6,774 -
-
37,150 (37,150) 430,558 47,361 4,141 6,774 -
45,000
430,558 43,056 4,141 6,774 -
COGS Retail Inventory Purchases (48%) F&B Inventory Purchases (30%) Rental Inventory Purchases
8,552 15,299 -
1,952 17,623 -
4,191 18,924 -
8,574 22,289 -
7,864 23,903 -
28,512 81,661 -
24,156 71,923 -
26,057 77,075 -
26,422 84,585 -
26,422 57,956 -
26,422 71,063 -
23,470 74,631
21,017 61,449
Operations Expense Legal/Professional/Tax & Audit (OCP) Real Estate Taxes Sales Taxes & MCA Fees Operating Expenses - Utilities & Insurance M&T Visa P Card (10th) Miscellaneous Dept Purchases Operating Expenses - Bank/CC Fees Operating Expenses - Operations and Maintenance Operating Expenses - Food & Beverage Operating Expenses - Marketing & Sales Operating Expenses - Retail/Rentals Operations Operating Expenses - Hotel Directors Fees Capital Expenditures
18,138 2,029 252 84,097 10,000 3,000 5,200 2,505 10,000 30,000
62,925 119,038 270 62,097 10,000 7,000 23,200 2,505 30,000
87,564 11,575 92,097 10,000 125,700 5,200 2,505 30,000
2,581 62,153 472 49,678 5,000 2,500 5,200 2,505 25,000
15,000 35,216 40,000 517 49,678 5,000 2,250 5,200 2,505 10,000 11,000
21,672 3,321 835 49,678 5,000 3,250 5,200 35,608 -
128,293 855 49,678 5,000 110,450 5,200 2,505 -
15,000 3,730 19,997 16,081 74,678 5,000 1,000 5,200 2,505 10,000
52,404 40,000 1,954 49,678 5,000 2,000 5,200 2,505 10,000 -
10,000 38,548 17,584 2,422 49,678 5,000 1,000 5,200 82,505 -
100,442 1,911 49,678 5,000 1,000 5,200 2,505 -
15,000 10,518 56,835 51,329 74,678 5,000 91,450 2,500 2,505 -
61,501 40,000 1,875 49,678 5,000 1,000 2,500 2,505 10,000 -
445,368 (344,711)
110,000 446,610 (338,527)
16,197 7,700 25,956 744,137 (544,153)
12,500 75,000 273,451 (84,627)
12,500 75,000 581,578 (374,611)
75,000 309,737 24,458
75,000 894,546 (552,457)
16,197 7,700 8,169 25,323 12,500 75,000 446,212 461,085
75,000 860,041 (78,612)
50,000 346,314 622,291
752,055 12,542
16,197 7,700 25,323 12,500 514,635 626,361
5,250
16,395
36,223
225,669
34,446
48,224
370,629
24,459
4,628
16,854
175,866
8,075
10,000 40,000 50,000 500,618
100,000 15,000 32,000 10,000 157,000 620,005
10,000 10,000 790,360
15,000 75,000 15,000 150,000 10,000 265,000 764,120
10,000 10,000 20,000 636,024
275,000 65,000 100,000 25,000 10,000 475,000 832,961
10,000 10,000 904,546
10,000 10,000 826,841
10,000 10,000 894,500
35,000 10,000 45,000 395,942
10,000 10,000 778,909
250,000 65,000 50,000 100,000 13,000 10,000 488,000 1,178,501
400,000 10,000 410,000 1,545,683
(399,961)
(511,922)
(590,376)
(575,296)
(429,057)
(498,766)
(562,457)
80,456
(113,071)
572,663
(14,312)
(37,505)
(795,698)
(3,875,303)
64,934 100,656 500,618 (335,027)
(335,027) 108,083 620,005 (846,949)
(846,949) 199,984 790,360 (1,437,326)
(1,437,326) 188,824 764,120 (2,012,621)
(2,012,621) 206,966 636,024 (2,441,679)
(2,441,679) 334,196 832,961 (2,940,444)
(2,940,444) 342,089 904,546 (3,502,901)
(2,962,854) 764,597 778,909 (2,977,166)
(2,977,166) 1,140,997 1,178,501 (3,014,670)
(3,014,670) 749,984 1,545,683 (3,810,369)
64,934 6,793,707 10,669,009 (3,810,369)
Rents and Admin Dues (Comet, The Appalachian, ) Commercial Units 212 Building Rent Rent - Trager Morford Consv Co (Land Lease use of lakes) Kellam Lease Management Fee (HSK) Income Taxes Accrual at Period End/ CV/CC Total Operating Disbursements & CAPEX Operating Cashflow Debt & Equipment Leases Total Debt Payments Restructuring Fees Restructuring Advisors (HL) Debtors Counsel (LS) Debtors Financial Advisor (GH) Other Debtor Professionals UCC Committee Professionals M&T Professionals DIP Lenders Professionals Deposits - Utilities, etc. Filing & US Trustees Costs Claims Agent Contingency Restructuring Expenses Total Cash Disbursements Weekly Change in Cash Mountain Creek Resort, Inc. - Cash Summary Beginning Balance Receipts Disbursements Ending Balance
-
(3,502,901) 907,297 826,841 (3,422,445)
(3,422,445) 781,429 894,500 (3,535,517)
(3,535,517) 968,604 395,942 (2,962,854)
386,554 1,127,608 (377,623)
500,000 525,000 130,000 15,000 150,000 175,000 50,000 150,000 53,000 92,000 120,000 1,960,000 10,669,009
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 64 of 107
EXHIBIT B REAL PROPERTY DESCRIPTION
Exhibit B
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 65 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 66 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 67 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 68 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 69 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 70 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 71 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 72 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 73 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 74 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 75 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 76 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 77 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 78 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 79 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 80 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 81 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 82 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 83 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 84 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 85 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 86 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 87 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 88 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 89 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 90 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 91 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 92 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 93 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 94 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 95 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 96 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 97 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 98 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 99 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 100 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 101 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 102 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 103 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 104 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 105 of 107
Desc Main
Case 17-19899-SLM
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 106 of 107
Interim DIP Order Exhibit B
Desc Main
MCRI DIP
Case 17-19899-SLM
Week of Fiscal Year Week of BK period Beginning Period (Friday) Ending Period (Thursday) IR Row 1 Row 18 Row 19 Row 20 Row 21 Row 22 Row 23 Row 24 Row 25 Row 26 Row 27 Row 28 Row 29 Row 30 Row 31 Row 32 Row 33 Row 34 Row 35 Row 36 Row 37 Row 38 Row 39 Row 40 Row 41 Row 42 Row 43 Row 44 Row 45 Row 46 Row 47 Row 48 Row 49 Row 50 Row 51 Row 52 Row 53 Row 54 Row 55 Row 56 Row 57 Row 58 Row 59 Row 60 Row 61 Row 71 Row 72 Row 73 Row 74 Row 75 Row 76 Row 77 Row 78 Row 79 Row 80 Row 81 Row 82 Row 83 Row 84 Row 85 Row 86 Row 87 Row 88 Row 89 Row 91 Row 92
Cash Receipts Total Cash Receipts Cash Disbursements Payroll HMGG/RT94 Payroll HMGG/RT94 Payroll (inflow) Payroll ER Payroll Taxes ADP - PR Processing & HR Fees NW Trust Contrib 401K Insurance - Health Insurance
3 1 15-May-17 18-May-17 Projected 100,656 0%
4 2 19-May-17 25-May-17 Projected 108,083 0%
Doc 37 Filed 05/17/17 Entered 05/17/17 18:02:49 Document Page 107 of 107 WP Opens 5 3 26-May-17 1-Jun-17 Projected 199,984 0%
6 4 2-Jun-17 8-Jun-17 Projected 188,824 0%
7 5 9-Jun-17 15-Jun-17 Projected 206,966 0%
8 6 16-Jun-17 22-Jun-17 Projected 334,196 0%
9 7 23-Jun-17 29-Jun-17 Projected
10 8 30-Jun-17 6-Jul-17 Projected
11 9 7-Jul-17 13-Jul-17 Projected
342,089 0%
907,297 0%
781,429 0%
Desc Main
12 10 14-Jul-17 20-Jul-17 Projected 968,604 0%
13 11 21-Jul-17 27-Jul-17 Projected
14 12 28-Jul-17 3-Aug-17 Projected
15 13 4-Aug-17 10-Aug-17 Projected
Admin Period Total 13 Week Total Projected
764,597 0%
1,140,997
749,984
6,793,707
222,900 (222,900) 2,383,002 248,917 24,575 47,421 135,000 233,609 678,381 55,000 139,973 762,486 122,029 90,349 785,069 80,000 351,600 80,200 145,665 40,000 136,000 48,591 23,100 8,169 76,602 50,000 996,554 7,742,292 (948,585) 966,717
37,150 (37,150) 224,714 22,471 2,336 6,774 -
-
37,150 (37,150) 229,698 22,970 2,085 6,774 45,000
-
37,150 (37,150) 250,526 25,053 3,592 6,774 -
-
37,150 (37,150) 371,558 39,014 4,141 6,774 -
45,000
37,150 (37,150) 445,387 48,993 4,141 6,774 -
-
37,150 (37,150) 430,558 47,361 4,141 6,774 -
45,000
430,558 43,056 4,141 6,774 -
COGS Retail Inventory Purchases (48%) F&B Inventory Purchases (30%) Rental Inventory Purchases
8,552 15,299 -
1,952 17,623 -
4,191 18,924 -
8,574 22,289 -
7,864 23,903 -
28,512 81,661 -
24,156 71,923 -
26,057 77,075 -
26,422 84,585 -
26,422 57,956 -
26,422 71,063 -
23,470 74,631
21,017 61,449
Operations Expense Legal/Professional/Tax & Audit (OCP) Real Estate Taxes Sales Taxes & MCA Fees Operating Expenses - Utilities & Insurance M&T Visa P Card (10th) Miscellaneous Dept Purchases Operating Expenses - Bank/CC Fees Operating Expenses - Operations and Maintenance Operating Expenses - Food & Beverage Operating Expenses - Marketing & Sales Operating Expenses - Retail/Rentals Operations Operating Expenses - Hotel Directors Fees Capital Expenditures
18,138 2,029 252 84,097 10,000 3,000 5,200 2,505 10,000 30,000
62,925 119,038 270 62,097 10,000 7,000 23,200 2,505 30,000
87,564 11,575 92,097 10,000 125,700 5,200 2,505 30,000
2,581 62,153 472 49,678 5,000 2,500 5,200 2,505 25,000
15,000 35,216 40,000 517 49,678 5,000 2,250 5,200 2,505 10,000 11,000
21,672 3,321 835 49,678 5,000 3,250 5,200 35,608 -
128,293 855 49,678 5,000 110,450 5,200 2,505 -
15,000 3,730 19,997 16,081 74,678 5,000 1,000 5,200 2,505 10,000
52,404 40,000 1,954 49,678 5,000 2,000 5,200 2,505 10,000 -
10,000 38,548 17,584 2,422 49,678 5,000 1,000 5,200 82,505 -
100,442 1,911 49,678 5,000 1,000 5,200 2,505 -
15,000 10,518 56,835 51,329 74,678 5,000 91,450 2,500 2,505 -
61,501 40,000 1,875 49,678 5,000 1,000 2,500 2,505 10,000 -
445,368 (344,711)
110,000 446,610 (338,527)
16,197 7,700 25,956 744,137 (544,153)
12,500 75,000 273,451 (84,627)
12,500 75,000 581,578 (374,611)
75,000 309,737 24,458
75,000 894,546 (552,457)
16,197 7,700 8,169 25,323 12,500 75,000 446,212 461,085
75,000 860,041 (78,612)
50,000 346,314 622,291
752,055 12,542
16,197 7,700 25,323 12,500 514,635 626,361
5,250
16,395
36,223
225,669
34,446
48,224
370,629
24,459
4,628
16,854
175,866
8,075
10,000 40,000 50,000 500,618
100,000 15,000 32,000 10,000 157,000 620,005
10,000 10,000 790,360
15,000 75,000 15,000 150,000 10,000 265,000 764,120
10,000 10,000 20,000 636,024
275,000 65,000 100,000 25,000 10,000 475,000 832,961
10,000 10,000 904,546
10,000 10,000 826,841
10,000 10,000 894,500
35,000 10,000 45,000 395,942
10,000 10,000 778,909
250,000 65,000 50,000 100,000 13,000 10,000 488,000 1,178,501
400,000 10,000 410,000 1,545,683
(399,961)
(511,922)
(590,376)
(575,296)
(429,057)
(498,766)
(562,457)
80,456
(113,071)
572,663
(14,312)
(37,505)
(795,698)
(3,875,303)
64,934 100,656 500,618 (335,027)
(335,027) 108,083 620,005 (846,949)
(846,949) 199,984 790,360 (1,437,326)
(1,437,326) 188,824 764,120 (2,012,621)
(2,012,621) 206,966 636,024 (2,441,679)
(2,441,679) 334,196 832,961 (2,940,444)
(2,940,444) 342,089 904,546 (3,502,901)
(2,962,854) 764,597 778,909 (2,977,166)
(2,977,166) 1,140,997 1,178,501 (3,014,670)
(3,014,670) 749,984 1,545,683 (3,810,369)
64,934 6,793,707 10,669,009 (3,810,369)
Rents and Admin Dues (Comet, The Appalachian, ) Commercial Units 212 Building Rent Rent - Trager Morford Consv Co (Land Lease use of lakes) Kellam Lease Management Fee (HSK) Income Taxes Accrual at Period End/ CV/CC Total Operating Disbursements & CAPEX Operating Cashflow Debt & Equipment Leases Total Debt Payments Restructuring Fees Restructuring Advisors (HL) Debtors Counsel (LS) Debtors Financial Advisor (GH) Other Debtor Professionals UCC Committee Professionals M&T Professionals DIP Lenders Professionals Deposits - Utilities, etc. Filing & US Trustees Costs Claims Agent Contingency Restructuring Expenses Total Cash Disbursements Weekly Change in Cash Mountain Creek Resort, Inc. - Cash Summary Beginning Balance Receipts Disbursements Ending Balance
-
(3,502,901) 907,297 826,841 (3,422,445)
(3,422,445) 781,429 894,500 (3,535,517)
(3,535,517) 968,604 395,942 (2,962,854)
386,554 1,127,608 (377,623)
500,000 525,000 130,000 15,000 150,000 175,000 50,000 150,000 53,000 92,000 120,000 1,960,000 10,669,009