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<br />Agent, on behalf of itself and the DIP Lenders, shall have the right to credit bid, in accordance
<br />with the DIP Documents, up to the full amount of the DIP Obligations in any sale of the DIP
<br />Collateral (or any part thereof); (b) the Prepetition Collateral Agent, on behalf of itself and the
<br />applicable Prepetition Secured Parties, shall have the right to credit bid up to the full amount of
<br />the Prepetition Debt in any sale of the Prepetition Collateral (or any part thereof), in each case of
<br />(a) and (b), as provided for in section 363(k) of the Bankruptcy Code, without the need for
<br />further Court order authorizing the same and whether any such sale is effectuated through section
<br />363(k) or 1129(b) of the Bankruptcy Code, by a chapter 7 trustee under section 725 of the
<br />Bankruptcy Code, or otherwise. Each of the DIP Collateral Agent, on behalf of itself and the DIP
<br />Lenders, and the Prepetition Collateral Agent, on behalf of itself and the applicable Prepetition
<br />Secured Parties, shall have the right to assign its credit bidding rights to any party, in each case
<br />in its sole discretion.
<br />40. Certain Governmental Matters.
<br />(a) Notwithstanding anything to the contrary in this Final Order or DIP
<br />Documents, nothing in this Final Order or the DIP Documents shall relieve the Debtors of any
<br />obligations under federal, state or local police or regulatory laws or under 28 U.S.C. § 959(b),
<br />provided that nothing herein shall limit or impair the Debtors' rights to assert defenses under
<br />applicable law and nothing herein shall create new defenses to obligations under police or
<br />regulatory laws or 28 U.S.C. § 959(b).
<br />(b) Notwithstanding anything to the contrary in this Final Order or the DIP
<br />Documents, nothing in this Final Order or the DIP Documents shall impair or adversely affect
<br />the United States of America's rights, claims and defenses of set-off and recoupment, or those of
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<br />any right under applicable law of any governmental unit with respect to any financial assurance,
<br />letter of credit, trust, or bond or limit any governmental unit in the exercise of its police powers
<br />in accordance with I 1 U.S.C. § 362(b)(4).
<br />(e) Notwithstanding anything to the contrary in this Final Order or the DIP
<br />Documents, nothing in this Final Order or the DIP Documents shall impair or adversely affect
<br />the right of the United States or any State to object to any credit bid for cause.
<br />41. DIP Credit Agreement Modifications. The following provisions of the DIP Credit
<br />Agreement are hereby amended and restated in their entirety as follows:
<br />(a) Section 9.01(w)(x): "the entry of an order by the Bankruptcy Court
<br />granting relief from or modifying the automatic stay of section 362 of the Bankruptcy Code (x)
<br />to allow any creditor to execute upon or enforce a Lien on any Collateral with a value in excess
<br />of $250,000 with respect to any single such order or $750,000 in the aggregate with respect to all
<br />such orders, or (y) with respect to any Lien of or the granting of any Lien on any Collateral to
<br />any state or local environmental or regulatory agency or authority having priority over the Liens
<br />in favor of the Agents;"
<br />(b) Section 9.01(w)(xvii): "the entry of an order precluding the Collateral
<br />Agent from having the right to or being permitted to "credit bid" with respect to any of the assets
<br />of the Loan Parties constituting DIP Collateral or Prepetition Collateral, as applicable (excluding
<br />an order determining the extent of the Prepetition Secured Parties' liens in connection with any
<br />Initial Challenge);"
<br />(c) Schedule 7.01(v): Schedule 7.01(y) will be replaced in its entirety with
<br />the Schedule 7.01(y) annexed to this Final Order as Exhibit 2.
<br />any State or any of the foregoing's respective agencies, departments or agents, and all such
<br />rights, claims and defenses shall be preserved in their entirety.
<br />(c) Stipulation 7(f) and paragraphs 26, 27, 28, 33, and 34 of this Final Order
<br />shall apply with respect to liabilities to governmental units under police or regulatory law only so
<br />long as the actions of the DIP Agent, DIP Lenders, or the Prepetition Secured Parties, as
<br />applicable, have not constituted and do not constitute, within the meaning of 42 U.S.C. §
<br />9601(20)(F), actual participation in the management or operational affairs of a vessel or facility
<br />owned or operated by the Debtors, or otherwise caused lender liability to arise or the status of
<br />control, responsible person, owner, or operator to exist under applicable federal, state, or local
<br />law. For the avoidance of doubt, in determining to make any loan or other extension of credit
<br />under the DIP Credit Agreement, permitting the use of Cash Collateral, performing under this
<br />Order and the DIP Documents in the ordinary course, no DIP Agent, DIP Lender or Prepetition
<br />Secured Party shall be deemed to have participated in the management or operational affairs of a
<br />vessel or facility owned or operated by the Debtors, or to have otherwise caused lender liability
<br />to arise or assumed the status of control, responsible person, owner, or operator, provided,
<br />however, that foreclosing, exercising remedies, or becoming involved in decision -making on the
<br />Debtors' compliance with police or regulatory laws or regulations would not be ordinary course
<br />performance. Each DIP Agent, DIP Lender, and Prepetition Secured Party preserves and is not
<br />waiving any defenses it may have to any claims as set forth in 42 U.S.C. § 9601(20)(F) or
<br />comparable, federal, state, and local law.
<br />(d) Notwithstanding anything to the contrary in this Final Order or the DIP
<br />Documents, nothing in this Final Order or the DIP Documents shall impair or adversely affect
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<br />(d) Notwithstanding the terms of the DIP Documents, the DIP Lenders are not
<br />being granted a lien on Avoidance Actions, Avoidance Proceeds, or Unencumbered Commercial
<br />Tort Claims.
<br />42. No Third Party Rights. Except as explicitly provided for herein, this Final Order
<br />does not create any rights for the benefit of any third party, creditor, equity holder or any direct,
<br />indirect or incidental beneficiary.
<br />43. Bankruptcy Rules. The requirements of Bankruptcy Rules 4001, 6003 and 6004,
<br />in each case to the extent applicable, are satisfied by the contents of the Motion.
<br />44. Necessary Action. The Debtors are authorized to take any and all such necessary
<br />actions as are reasonable and appropriate to implement the terms of this Final Order.
<br />45. Retention of Jurisdiction. The Court shall retain jurisdiction to implement,
<br />interpret and enforce the provisions of this Final Order, and this retention of jurisdiction shall
<br />survive the confirmation and consummation of any chapter I I plan for any one or more of the
<br />Debtors notwithstanding the terns or provisions of any such chapter II plan or any order
<br />confirming any such chapter I I plan.
<br />46. The Debtors shall serve this order in accordance with all applicable rules and
<br />orders and shall file a certificate of service evidencing compliance therewith.
<br />[SO ORDERED]
<br />Copies to Default List.
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