2021-03-16_GENERAL DOCUMENTS - C1980004

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C61Ee:PD616g,7&U3 10esf)Main DCebitrkH P@gg65,bb698 C8SIs9:226Rttt',1 M3 DMo4H83-EilefFKMW92M/2Entfrott gIMMAM2CB48:1DesBMain DFaKbh*iR P@gg66inb698 West Bank and BB&T (the "Unencumbered Deposit Accounts") may be used to food administrative and/or priority claims; and (iii) the Prepetition Lenders' and DIP Lenders' professionals' fees shall he paid by the Debtors only to the extent set forth in the Approved Cash Flow Forecast. d. If actual cash revenues collected by the Debtors (excluding contract termination payments, if any, from AEP Generation Resources, Inc. and Buckeye Power, Inc.), from the opening of business on August 29, 2020 through the close of business on September 10, 2020 (the "Measurement Period") are less than the aggregate receipts budgeted to be collected by Debtors in the attached Exhibit A (the "Measurement Period Budget") during the Measurement Period (the amount of such difference being referred to as the "Budgeted Revenue Shortfall'), then the DIP Lender/Stalking Horse Bidder will Release (as defined below) to the Debtors' estates an amount of accounts receivable (together with the proceeds thereof, the "Released Receivables") with an aggregate face amount equal to the lesser of (A) an amount equal to the remainder of (i) the Budgeted Revenue Shortfall minus (it) the Budgeted Expense Savings (as defined below), or (B) an amotmt equal to the remainder of (x) the aggregate amount of the Debtors' inventory and accounts receivable as of the Closing on September 10, 2020 (determined by the Debtors in accordance with the methodology historically used by Debtors to prepare daily flash reports) that would comprise Purchased Assets under the Stalling Horse Asset Purchase Agreement (except for the provisions hereof), minus (y) the net of S 13.5 million less the smount of inventory actually purchased and the proceeds thereof that are paid to the DIP Lenders/Stalking Horse Bidder (or their assignees or 54 Cfl1asB:PQ�6{bg,2B'P(&3 Dt�d�l3-EileRi09fmSH�l2EntEtpah�®8HBd7J22BdiP:lDesBA6ain D6shi6e� P@gg68®6696 e. Notwithstanding anything provided benzin, all of the rights of the parties under the Stipulation remain in full force and effect. I. Upon the Closing, the DIP Lenders and the Prepetition Lenders shall possess only unsecured, non -priority deficiency claims against the Debtors' estates for arty amounts left on the DIP Facility and their prepetition debt after the Closing (the "Deficiency Claims"). For avoidance of doubt, the DIP Lenders and the Prepetition Lenders shall not possess arty secured or administrative claims against the Debtors' estates, effective as of the Closing. The Committee reserves its rights to object to the Deficiency Claims pursuant to the terms of the Stipulation. 62. Application of Proceeds. At the Closing of each Complementary Transaction or Competing Transaction (each as defined in the Stalking Horse Agreement), all proceeds and consideration therefrom shall be directly paid to, and all non -cash proceeds shall be otherwise assigned to, the DIP Secured Parties and/or the Prepetition Secured Parties (or their assignees or designees), as provided in the Stalling Horse Agreement, the Final DIP Order and the DIP Credit Agreement. 63. Reservation of Rights. Except w expressly provided herein, all of the rights of the DIP Secured Parties and their assignees and designees under the DIP Facility and the Final DIP Order remain in full force and effect. 64. Debtor Documents. Other than as set forth in any Sale Agreement, no buyer, or its successors or assigns, shall be obligated or responsible to maintain or provide any records or information, conduct any data downloads or searches, allow any access to or respond to any subpoenas, discovery or information requests related to the Debtors, or any records, information, debts, liabilities, responsibilities or commitments in any way relating to the Assets, or the Debtors' designees) in connection with the Complementary Sales. If the remainder amount in clause (A) or (B) above is less than $0, then the amount determined under such clause shall be $0. For purposes of this paragraph, (i) "Budgeted Expense Savings" means the excess, if any, of budgeted cash expenditures of the Debtors during the Measurement Period as reflected in the Measurement Period Budget over the total of (i) actual cash expenditures during the Measurement Period, plus (ii) expenditures of the Debtors incurred but not yet paid during the Measurement Period, and (ii) "Release" means the Released Receivables will be (i) excluded from the Purchased Assets (as defined in the Stalling Horse Asset Purchase Agreement), (ii) not required to be used to repay amounts outstanding under the DIP Credit Agreement, and (iii) collections on the Released Receivables will be retained by the Debtors and available for payment by the Debtors of expenditures, including admirstratve expenses, professional fees or other expenditures. In addition, solely to the extent the Stalking Horse Bidder eleets to extend the closing date of the Sale Transaction, the Debtors, the Committee, and the Stalking Horse Bidder will mutually agree on, and the Stalking Horse Bidder or DIP Lenders will pay, the incremental administrative claims relating to the extension period only; provided, however, that any expenses relating to the pre -extension period shall not be paid by the Stalking Horse Bidder or DIP Lenders. For the avoidance of doubt, the Prepetition [.enders, DIP Lenders, and Stalking Horse Bidder (and their assignees and designees) will not assume, fund, or pay any administrative or priority claims other than as specifically provided for herein. .11 C8m4:2.B61b4M=3 D&D4EA3-EilegOWU 8M/2EntEta4BOW099MBMZ BMP:1Desb"ain DF5zbbkiR P@gg68Ab698 use of the Assets prior to the Closing and all persons and entities are hereby barred and enjoined from seeking such information from the Buyers or their successors or assigns; provided,however, the foregoing shall not apply to records that are in the possession of, and are required to be preserved according to applicable law by, the Buyers or their suceessors and assigns. 65. West Virginia Mid Vol Obiection. On August 6, 2020, West Virginia Mid Vol, Inc. ("WVMV") filed with this Court a Complaint for Declaratory Judgment [Docket No. 1431 (the "Complaint") against Debtor Rockhouse Land LLC ("Rockhouse"), initiating an adversary proceeding styled as West Virginia Mid Vol, Inc. v. Rockhouse Land LLC, Case No. 1:20-ap- 01029 (the "WVMV Adversary Proceeding"). By the Complaint, WVMV seeks entry of a declaratory judgment that the Lease entered between WVMV, as Lessor, and Rockhouse, as Lessee and dated August 17, 2007 (the "WVMV Lease") terminated rim its own terms on August 17, 2017 and is therefore not property of Rockhouse's estate under 1 I U.S.C. § 541(a). Rockhouse contests WVMV's assertion that the WVMV Lease terminated on August 17, 2017 or at arty time. Pursuant to this Order, the Debtors assume and assign the WVMV Lease to Eagle Speciality Materials, LLC (" 4�'j, subject to resolution of the WVMV Adversary Proceeding, whether by adjudication, settlement or otherwise, which ESM has agreed to defend and prosecute. For the avoidance of doubt, if the Court determines, or if it is otherwise agreed to by WVMV and ESM, that the WVMV Lase terminated pre -petition, the WVMV Lease cannot be assumed and assigned and ESM shall not be entitled to a refund of arty portion of the $1,800,000 it agreed to pay for the Rhino Easter assets in Croup 6 during the Auction that was held on August 31, 2020. However, if the Court determines, or if it is otherwise agreed to by WVMV and ESM, that the WVMV Lease remained active as of the Petition Date, the WVMV Lease is assumed and assigned to ESM pursuant to this Order in accordance with Section 365 of the Bankruptcy Code, 56 57