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Case 1:20-bk-12043 Doc 643 Filed 03/03/21 Entered 03/03/21 18:42:10 Desc Main <br />Document Page 7 of 20 <br />17. On August 12, 2020, the Court entered the Final DIP Order, a true copy of which <br />is attached as Exhibit A. <br />18. Paragraph 9(b)(iii) of the Final DIP Order approved the payment by the Debtors of <br />Alter Domus (US)'s fees and expenses, including agency fees and the fees of its professionals in <br />connection with these chapter 11 cases, defined as "(the "DIP Fees and Expenses"), without the <br />need to file retention motions or fee applications or to provide notice to any party." As noted above, <br />when the DIP Facility was funded, the Debtors should have paid the DIP Fee as part of the DIP <br />Fees and Expenses. However, the Debtors failed to do so. <br />19. Paragraph 18 of the Final DIP Order granted the Prepetition Secured Parties, <br />including Cortland as the Prepetition Agent and Prepetition Collateral Agent, adequate protection <br />"pursuant to sections 361, 362, 363(e), 364(d)(1) and 507 of the Bankruptcy Code." <br />20. Paragraph 18(d) of the Final DIP Order further provides that the Prepetition <br />Secured Parties adequate protection shall include, "current cash payments of the reasonable and <br />documented prepetition and postpetition fees and expenses of the Prepetition Agent . . . in <br />accordance with the Prepetition Credit Agreement ("Adequate Protection Fees and Expenses"), <br />subject to the review procedures set forth in paragraph 27 of this Final Order." <br />21. Paragraph 27 of the Final DIP Order contains no such review procedures and <br />instead addresses the effect of the Debtors' stipulations in the Final DIP order on third parties and <br />establishes deadlines and procedures for the Committee to challenge the validity, extent, and <br />priority of the Prepetition Debt and the Prepetition Liens. Presumably, Paragraph 18(d)'s reference <br />to "review procedures" should have been to Paragraph 25, which is labeled "Payment of Fees and <br />Expenses" and in fact includes procedures for the payment of the DIP Fees and Expenses and the <br />Adequate Protection Fees and Expenses and reads as follows: <br />26594115v.2 <br />