Free Appendix - District Court of Delaware - Delaware

Case 1:07-cv-00621-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
In re:
)
Chapter 11

)

EXAERIS, INC., and INYX USA, LTD.,I
Debtors.

DR. JACK KACHKAR,

) ) ) ) ) ) )

Case No. 07-10887 (KG) Case No. 07-10888 (KG)

Appellant
v.

) ) )
) )

Civil Action No. 07-621 (GMS)

WESTERNBANK PUERTO RICO, STEPHEN S. GRAY, Chapter 11 Trustee ofINYX USA, LTD.
Appellees.

) )
)

ADDENDUM OF STATUTES, RULES, UNREPORTED ORDERS, OR SIMILAR MATERIAL TO BRIEF OF APPELLEE. CHAPTER 11 TRUSTEE OF INYX USA. LTD.
Richard Pachulski

Bruce Grohsgal (DE Bar No. 3583) PACHULSKI STANG ZIEHL & JONES LLP 919 North Market Street, 17th Floor
Wilmington, Delaware 19801

Telephone: (302) 652-4100

Facsimile: (302) 652-4400
Email: bgrohsgal(fpszjlaw.com

Attorneys for the Chapter 11 Trustee of Inyx USA, Ltd.

Dated: April 14, 2008

1 The Exaeris, Inc. and Inyx USA, Ltd. bankptcy cases were jointly administered for procedural purposes at the
commencement of

those cases, by order entered on July 12,2007 (Docket No. 39 in Bankptcy Case No. 07-

10887). On December 6, 2007 (Docket No. 421 in Bankptcy Case No. 07-10887), the Bankptcy Court vacated

the order for joint administration, and the bankptcy cases have been separately administered since the entr of that
order.

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INDEX
Tab No.
Unreported Orders

In re American Home Mortgage Holdings, Inc., Ch. 11 Case No. 07-11047 (CSS)
(Bankr. D. DeL. Nov. 28, 2007)..............................................................................................1

In re Buffets Holdings Inc., Ch. 11 Case No. 08-10141 (MFW) (Bankr. D. DeL.

Feb. 22, 2008) ........................................................................................................................2

In re Domain, Inc., Ch. 11 Case No. 08-10132 (PJW) (Ban. D. DeL. Feb 14,2008).........3
In re Foamex International, Inc., Ch. 11 Case No. 05-12685 (PJW) (Banr. D. DeL. Oct. 17, 2005)....................... .......................................................... ..............4
In re HomeBanc Mortgage Corp., Ch. 11 Case No. 07-11079 (KJC)...................................5
In re New Century TRS Holdings, Ch. 11 Case No. 07-10416 (KJC) (Bank. D. DeL.

May 7, 2007)..........................................................................................................................6
In re Sharper Image Corp., Ch. 11 Case No. 08-10322 (KG) (Bank. D. DeL. Mar. 7,

2008) .............................................................................................................................. ........7

In re Tweeter Home Entertainment Group, Ch. 11 Case No. 07-10787 (PJW)
(Bankr. D. DeL. June 29, 2007) ..............................................................................................8
Statutes and Rules

11 U.S .C. § 361 ................. .................................................... .................................................9
11 U . S.C. § 363.................................. ................................................................................ ....1 0

11 U. S. C. § 364..................................................................................................................... .11

11 U . S.C. § 506..................................................................................................................... .12

11 U .S.C. § 552.................................................................................................................... ..13
Fed. R. Bank. P. 8013........... ....................................... ......... .............................................. ..14

DeI.Bank.L.R. 4001-2.......................................................................................................... .15

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EXHIBIT 1

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICl OJ¡' DELAWARE
In re
Chapter 11

AMERICAN HOME MORTGAGE HOLDINGS, INC., et al.,
Debtors.

Case No. 07-11047 (CSS)
Jointly Administered
Re: Docket

Nos. 1967 & 1999

FINAL ORDER PURSUANT TO SECTIONS i05(a), 362, AND 364 OF THE BANKRUPTCY CODE AND BANKRUPTCY RULES 2002, 4001 AND 9014: (A) APPROVING LIMITED RECOURSE DEBTOR-IN-POSSESSION FINANCING, (B) GRANTING LIENS. AND (C) GRANTING RELATED RELIEF
Upon the Motion for Interim and Final Orders (I) Authorizing Certain Debtors to Obtain

Postpctition Pinancing and Grant Security Interests Pursuant to 11 U.S.C. §§ 105,362,363, and
364(c); (TJ) ScheduJíng Final Hearng Pursuant to Bankl1ptcy Rule 4001(c); and (II) Granting

Related ReHef (the "Motion") dated November 12,2007 of American Home Mortgage
Jnvestment CO'P. ("AHMIC"), American Home Mortgage Corp. ("AHMC"), and American

Home Mortgage Servicing, Inc. ("AHMS"\ seeking, inter alia:
(i) authorization for debtors AHMIC, AHMC, and AHMS (collectively, the
"Borrowers") to obtain limited tec()urs~ postpetition financing (the "J ,imlted RecouTst: DJP
Facility") pursuant to section:: 1 05(a), 362, and 364 of title 11 of

the United States Code (the

"Daiiku.ptcy Code") and Rule 4001 of

the Federal Rules of

Bankruptcy Procedure (thc

"Bankruptcy Rules"), by enterÎiig into that certain $50,000,000 Debtor-in-Possessitm Loan and
St:clITily Agreement dated November 16, 2007 (as the same may be amended, supplemented, or
otherwí::e modi

lied lhnn time to time, the "Limited Recourse DIP Credit A~JTeement"l, a copy of

i CapÜalii-ed tetms \is~:d Ii~:ri:in but not othei'Wse defined herein shall have the meanings sr.t forth in the
J ,irnikd R~~çf.mrs~: i )1.1 Crt:dit Agrccmcnt.

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which is annexed hereto as Exhibit UA") by andlamong the Borrowers, the several lenders from
i

limo 10 I;mo paty thereto (colleei;vely, the "Let'''.,,), AH Mortgage Acqoisii;on Co., Inc., ;n;!s
capacity as Lender and Administrative Agent (c, llectively, the Lenders and the Administrative
;

Agent, the "Secured Parties"), subjeet to the terms and conditions set forth in this order (the "Final Order"), the Limited Recourse DIP Credit Agreement, and all related security and other
agreements, documents, notes, and instruments executed or delivered pursuant hereto or in

connection herewith or therewith (collectively, with the Limited Recourse DIP Credit
Agreement, and as any of the same shall be amended, restateù, supplemented or otherwise

moditied from time to time in accordance with this Final Order, the "Limited Recourse DIP
Fínancing Doeuinents"); and

(ii) the granting of liens and security interests in favor of

the Administrative Agent for the
the Bankruptcy

benelÏt of

the Secured Parties pursuant to sections 364(c)(2) and 364(c)(3) of

Code.
'fhe Emergency Interim Healing having been held on November 14,2007, and an interim

ordcr (the "Interim Order") having been entered on such date; and notice having been given of
the final hearing with respect to the Motion (the uFinal Hearing") in accordance with the Interim Order; and the Final Hearing having been held on November 28, 2007 at 10:00 a.m. (ET); and
upøn all ølthe pleadings tìed with the Court and the evidence adduced at, and statements or

counsel on the record of~ the Emergency Interim Hearing and the Final IlearIng, and afLer due

deliberation and consideration and suflícienl cause appearing therefor;

THE COURT HEREBY MAKES THE l~OLLOWING FINDINGS PURSUANT TO

ßANKRUPTCY RUJ.E 7052:

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A. Commencement of Cases. On August 6, 2007 (the "Commencement Date"),
each of the debtors in the above-captioned cases (the "Debtors") fied voluntay petìtìons for
rc1icfunder chapter i 1 of

the Bankptcy Code. The Debtors continue to operate their

businesses and manage their assets as debtors in possession pursuant to sections 1107(a) and

i 108. On August 14, 2007, the United States Trustee for the Distrct of Delaware appointed The
Oft1cial Committee of Unsecurcd Creditors (the "Committee'') in these cases. Pursuant to order
of

the Cour, the Debtors' cases arc bcîngjointly administered under the case number above.
B. Jurisdiction and Venue. 'l'he Court has

jurisdiction over these proceedings and

the parties and property affected hereby pursuant to 28 V,S.C. §§ 157(b) and 1334 and this is a

core proceeding pursuant to 28 lJ.S.C. § 157(b). Venue tòr proceedings on the Motion is proper
in this Court pursuant to 28 U.S.C. § 1409.
C. Node.c. Notice of the Final Hearing and entry of' thís Final Order was provided

pursuant to the Interim Order, and constitutes good and suffeicnt notice.

D. Sale of ServicIne Business. On October 30, 2007, this Court entered its Order
Pursuant to Sections 105,363,364,365, and 503(b) of

the Banptcy Code and Rules 2002,
the Federal Rules of

400 1,6004,6006, 7062, 9007, and 9014 of

Banuptcy Procedure (A)

Approving (i) the Sale of

the Debtors' Mortgage Servicing Business Free and Clear of Liens,

Claím~ al1d Interests, and (ii) Assumption and Assignmcnt of

Certain Executory Contracts and

Unexpired Leases Related Thereto, and (B) Granting Certain Related Relief (D.I. 1711 J (the
"Sale Order"). Pursuant to the Sale Order, AH Home Mortgage Acquisition Co., Inc. (in such

capacity, the "Purchaser") has been granted a first priority security interest in and lien on
Purchaser's Collateral (as det1ned in the Sale Ordcr) cffcctive upon the Initial Closing (as

defined in the Purchase Agreement (defined below)) and the right to assign such security interest

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, ¡ I

and lien in connection with a Financing. In conhection with the Purchase Agreement approved

puruant to the Sale Order, the Borrowers agree~ to tae certain actions in connecon with a

Financing. !

i

E. WiIinf!ess to Lend. The Lenders arc willing to make the Limited Recourse DIP
Facilíty available and to make the loans and advances pursuant to the terms of

the Limited
the

Recourse nip Financing Documents, but only ífthe Administrative Agent on behalf of

Lenders is granted a security interest in and liens on the Collateral (as defined in Paragraph 8
below), pursuant to seetions 364(c)(2) and 364(c)(3) of

the Bankptcy Code, in the priority set

fbrth herein.
F. Business Judi!ilcnt and Good Faith. Based on the record belbre the Court, the

tem1S 01' the Limited Recourse DIP Facitty are fairj just, at1d reasonable under the

circumstaces, are consistent with the Purchase Agreement approved by the Cour pursuaiit to

the Sale Order, are appropriate for secured financing to a debtor in possession, reflect the

Borrowers' exercise ofthcir prudent business judgment consistent with their fiduciary duties,
and are supported by reasonably equivalent value and fair consideration. Based On the record

before the Court, the terms of

the Limited Recourse DIP Facility have been negotiated in good

l11ith and at an's length by and among the parties, with all parties represented by counsel.

Based on the record before the Cour, any credit extended under the terms of the Limted
Recourse DIP Facilty is hereby found to be extended in good faith by the T ,enders as that tem1 is
used in section 364(e) of

the Bankruptcy Code. Bascd on the record before the Court, the

Secured PaTLíe~ are hereby round to be acting ín good faíth within the meaning of section 364(c)

of

the Bankruptcy Code in closíng the transactions conlemplated in the Limited Recourse DIP

Financing Agreements after the entry oftlie Interim Order. Based on the record beI(ire the

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Court, 110ne or the Seeured Parties is an "insider" or "aí11iate" of any of the Debtors (as such

terms are defined ín the Bankruptcy Code).

G. PrODcrtv of thc Estate. Each item of the Collateral constitutes propert of the
estate of at least one of the Borrowers.
II. Good Cause. Authol'Izíng the Liniíted Recourse DIP Facility and other rclìcf

granted herein is appropriate to provide the Borrowers wíth liquidity to support working capital
needs to the extent incurred in the Ordinary Course of

Business and as pennitted by the Limited

Recourse DIP Facilty tbr lhe purpose of operating the Servicing Business (as defined in the
Purchase Agreement) between the Initial Closing and the Final Closing (as defined Ín the
Purchase Agreement).
Based on the foregoing,

JT is HEREBY ORDERED, ADJUGED AND DECREED, that:
1. The Motion is granted in accordance with the terms of

this Pinal Order. Any

objections to the Motion. with respect to entry of

this Final Order that have not been withdrawn,

waived, or settled are hereby denied and overruled.
2. The Borrowers arc hereby authorized upon the Initíal Closing, pursuant to the
terms of

this Final Order and the terms and conditons (J('the Umited Recourse DIP Financing

Documents, to borrow funds under die Limited Recourse DIP Facilíly in such amount or
amounts as may be available to or for the benefit of

the Borrowers from the Secured Parties.

3. Except as otherwise expressly set forth in this Final Order, the terms and

conditions of the Limited Recourse DIP financing Documents are hereby approved in all
respects. The Limited Recourse DIP Financing Documents shall constitute vaHd and hinding

obligations of the Borruwers, enforceable against each of the Borrowers in accordance wíth their

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tenns. The Limited Ri;course DIP Financing Documents shall be suffîcient and conclusive
evidence of

the borrowing arrangements by and among the Borrowers and the Secured Parties.

All provisions in the Limited Recourse DIP Finfncing Documents arc binding and enforceable in
full even if not expressly rcfcrenced in this Final Order.
4. TIie Borrowers are hereby authorized and directed to do and perform all acts and

to make, execute, and deliver all instruments and documents (Including, without limitation, the
execution (,1' all seçuríty agreemt:nts, linancíng statemenls, and other filngs and regístrations)
which may be requirt:d or necessary tbr the Borrowers' performance LlIder the Limited ReeOUriie

DIP Financing Documcnts.
5. Each oflicer of

each Borrower, and each such other individual as may be so
Directol's of such Borrower, acting singly, is hereby authorized to
and all of

authorized by the Board of

execute and deliver any

the Limited Recourse DIP Pinaiicing Documents and related

documents, such execution and delivery to be conclusive of

their respective authority to act in

the name and on behalf of the Borrowers.

6. AHMS ís hereby authorized to act as tht: Administrative Borrower on behalf of
each other Borrower with respect to the Borrowers' rights and obligations under the Limited

Recourse DIP Finncing Documents, including, without limitation, requesting Loans thereunder.
Subject in all cases to the limited recourse provisions set forth in Paragraph 7 of

the Interim

Order, Paragraph 7 below

and in Section 3.05 of

the Limited Recourse DIP Cri;dlt Agreement

(collectively, the "Limited Recourse Provisions"), each Borrower shall be j(linlly and severally

liable for all Obligations ofthe Borrowers arsing under the Limited Recourse DTP Financing

Documents (collectively, the "Limited Recourse DIP Obligations"). Any notice given to, or
demand made on, any Borrower by the Secured Parties, pursuant to this Final Order or the

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Limited Recourse DIP Financing Ooeuments shall constitute notice to, or demand on, all

Borrowers without any requirement to provide any such notice or demand (or copy thercof) to
thc other Borrowers.
7. Notwithstanding anything contained herein, in thc Interim Order, in the Limited

Recourse DIP Credit Agreement or in any other Loan Document to the contrary, the liability of
the Borrowers is limited solely to the extent, but only to the extent, of the interest of each
Borrower in the CoJ1ateral only. Upon the occurence and during the continuance of an Event of

Default, any action taken by the Adniiníslrative Agent or any Lender against the Borrowers
under the Limited Recourse nip Creùí1 Agreement or any other Loan Document shall be limitcd

to the Collateral and no attachment, execution or other action or process shall be sought, issued
or levied UpOll any assets, properties or funds of the Borrowers other than the Collateral. In the

event of enforcement by the Adiuinistrative Agent or any Lender oltheir remedies under the
Limited Recourse DIP Credit Agreement, no judgment for any deflciency upon the Obligations

shall be obtained by the Secured Paries against the Borrowers. Any foreclosure on the
Collateral by the Administrative Agent under the Limited Recourse DIP Credit Agreement which results in the Administrative Agent obtaining possession or ownership of the Purchased Assets

(as ddined in the Purchase Agreement) shall be deemed to satisfy and relieve the Borrowers of
any requirement under the Purchase Agreement to deliver to thc Purchaser any such Purchased

Assets over which the Administrative Agent has obtained possession or ownership. Upon the
oCCurrence and during the continuancc of an Event of Default, the sole and exclusive remedy or

the Secured Parties with respect to the Collateral shall be limited to the collection by the Secured
Partíes olthe cash proceeds thereof

upon the receipt ofthc samc by the Borrowers and the

application of such cash proceeds to the repayment ofthe Oblígations. Neither the

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Administrativt: Agt:nt nor any oihc:r Secured Party shall have the right to foreclose upon, or sell,
lease, transfer, assign Or otherwíse dispose or any of

the Collateral or otherwise enforce their

security interest or lien upon the Collateral other than wíth respect to the cash proceeds thereof in accordance WÎth Section 3.05(b) ofthc Limited Recourse DIP Credit Agreement.

LIENS AND COLLATERAL
8. Upon the payment of

the Purchase Price (as detlned Ìn the Purchase Agreement)

at the Initial Closing in accordance with the provisions of the Purchase Agreement and as furthcr protection to the Secured Parties and to .secure the repayment ofthc Limited Recourse DIP
Obligations, the Administrative Agent, for the benefi of

the Secured Parties, shall have and is

hereby granted (subject to the occurrence of

the Initial Closing): (a) pursuant to section 364(c)(2)

of the Banuptcy Code, a valid, binding, enforceable, and perfected securìty interest in and lien
on all (i) the Purchased Assets (as such term is detJned in that certain Asset Purchase Agreement

by and among thc Borrowers, as sellers, and AH Mortgage Acquisition Co., Inc., as purchaser, dated September 25, 2007 as amended, restated, supplemented or otherwise modificd from time
to time with the consent ofthe Admínístrative Agent, the "Purchase Agreement") of every kind

or type wha.tsoever, tangible, intangible, real, personal and mixed, whether now owned or

existing or h~reaner acquíred or arising and regardless of where located, whether within the Unitcd States or in other locations, and aU cash and cash equivalents eamed in connection with

the Servicing Business (as defined in the Purchase Agreement) from and after the Initial Closing
(as dcfined in the Purchase Agreement) until the later of

the Final Closing (as defined in the
the Reconcilation Pa.yment (as defined in the Purchase

Purchase Agreement) or the payment of

Agreement); and (ii) all proceeds, products, rents and protHs, whether tangible or intangible, of
any of the foregoing, including proceeds of insurance covering any or all of

the toregoing, and

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any and all tagible or intagible property resulting from the sale, exchange, collection, or other

disposition of any of

the foregoing, or any portion thereof or interest therein, and the proceeds

thereof

(collcctivcly, (i) and (îi), the "Collateral") that is not encumbered by a Permitted Lien;

and (b) pursuant to section 364(e)(3) of

the Hanmptcy Code, a valid, binding, enforceable, and

perfected security interest in and lien on the Collateral that is immediately junior to any

Permitted Lien. The liens arising pursuant to the foregoing sentence shall not be released until
the earHest of (a) the Final Closing, (b) the Termination Date (as defined in the Purchase

Agreement) and (e) the Administrative Agent's written consent; except that with rcspcct to aiiy

Disputed Servicing Agreement (as defined in the Purchase Agreement) that is designated an
Excluded Contract (as defined in the Purchase Agreement) as provided in the Purchase
Agreement, the Hens arising pursuant to the tlm;~going sentence shall be a.utomatieally released

upon such designaiion, and Bank of America, N.A:s lien and security interest in such Excluded
Contract shall automatically reattach upon such designation without any further action, by the

Borrower, the Secured Pm1ies, Bank of America, N.A. or the Banptcy Court and wíthout the
need for the entry of aii order (with such liens to have the same priority and rights as existed prior to the Initial Closing). Notwithstanding the foregoing, if any Permitted Lìen is voided,
extinguished, or deterined not to be valid, the liens granted to the Administrative Agent
pursuant. to this paragraph shall, notwithstanding anything to the contrary in section 551 of

the

Bankruptcy Codc~ bc deemed first priority liens without any further action by the Borrowers, the

Secured Partics~ or the Bankruptcy Cour.
9. Notwithstanding anything to the contrary herein, the Secured Parties shall not

have, and nothing herein shall be constnicd as granting the Secured Paries a security interest in
or lien on any (i) proceeds of

the Sale (as defined in the Purchase Agreement), (ii) proceeds of

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the D of A Collateral rcceived by the Sellers (as defined in the Purchase Agreement) on Or be/~)re

the Initial Closing Date (as deJ1ned in the Purchase Agreement) but not paid to Ban of America,
N.A. as of

the InÜial Closing Date (which proceeds ofthe B of A Collateral shall be held in trust

and segregated lilr the bene/it of the Bank of Aiberica, N.A. and paid to Bank of America, N.A.
in the maner set forth in that certin Final Order (i) Authorizing Debtors' Use of Cash

Collateral and (ii) Granting Replacement Liens and Adequate Protection to Certain Pre-Petition

Secured Credítors, dated September 4, 2007, entered by the Bankrptcy Court in the Banuptcy
Cases, as extended and amended by the (a) First Interim Stipulation and Order Extending
Limited Use of

Cash Collatcral Pursuant to the Final Order (1) Authorizing Debtors' Limited Use

of Cash Collateral, (IT) Granting Replacement Liens and Adequate Protection to Certain Pre-

Petition Secured Paries and (11) Scheduling Final Hearing Pursuant to Bankruptcy Rule 4001

entercd on October 31, 2007 and (b) First Final Stipulation and Orùer Extendíng Limited Use of
Cash Collateral Pursuant to the Final Order (I) Authorizing Debtors' Limited Use of

Cash

Collateral, und (II) Granting Replacemcnt Liens and Adequate Protection to Certail1 Pre~PetItion
Secured Parties entered on November 14, 2007 (the "Cacih Collatera.l Order"), regardli:si: 01'

whether the Termination Date (as defíneù in the Cash Collateral Order) has occured), (ií) assets
of

the Sellers that are not being purchased by AU Mortgage Acquisition Co., Inc. pursuant to the
the Debtors used in the Servicing Business not
the

Purchase Agrccment, or (iv) any other a"set~ of

beîng purchased by the AH MorLgage Acquisition Co., Inc., in accordance with the terms of

Purchase Agreement.
10. The liens and security interests granted to the Admiistrative Agent herein and

pursuant to the Limited Recourse DIP Facilty in the Collateral shall not (a) be subject to any lien
or security interest that is avoided and preserved for the benefit of

the Borrowers' esttes as a

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result of any A voidance Actíons, or (h) be subordinated to or made pari passu with any other lien
or security interest pursuant section 364(d) of

the Banuptcy Code or otherwise.
the Final Closing and the

11. Aller the Initial Closing and prior to the earlier of

Termination Date (as defined in the Purchase Agreement), no other liens in or priority status with
respect to the Collateral, other than Pennitted Liens, shall have priorìty superior to or pari passu
with the liens granted by this Pinal Order to the Secured Paries, or shall be brrunted in the
Collateral while any portion of

the Limited Recourse DIP Obligations remains outstanding,

absent the express written consent of the Administrative Agent.
12. After the Initial Closing, this Final Order shall be suffcient and conclusive

evidence of

the validity, perfection, and priority of

the Administrative Agent's liens upon the

Collateral, without the necessity of fiUng or recording any financing statement or other

instrument or document which may otherwise be required iinder the law of any jurisdiction, or
the takíng or any other action to validate or perfect such liens or security interests in the

Collateral or to entitle the Administrative Agent to the prioritics granted herein. The

Administrative Agent shall not be required to fie any financing statements, notices of Hen or
similar instruments in any jurisdiction or fHing ollice, or to take any other action in order to
perfect the Administrative Agent's Hens and security interests granted by or pursuant to the

Interim Order, this Final Order or the Limited Recourse DIP Financing Documenls.

13. Any provision 0 l any lease or other license, contract, or other agreement that
requîres the consent or approval of one or more Persons, or requires the payment of any fees or

obligations to any Person, in ordcr tòr any of the Borrowers to pledge, grant, or otherwise perfèct

the Collateral, is and shall be deemed to be inconsistent with the provisions of the Bankruptcy
Code and shall have no force and effect.

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14. After the Initial Closing, should the Secured Paries, in their sole discretion (but

not as a requirement hereunder), from time to time choose to fie financing statements, notices of
i

lien or similar instruments, take possession of ~y Collateral as permitted by the Limited
Recourse DIP Financing Documents, or take any other action to validate or perfect any such

security interests or liens in the Collateral, the Borrowers and their offcers are hereby directed to

execute any such documents or instruents as the Secured Paries may reasonably requcst, and
all such documents and instruments shall be deemed to have been filed or recorded at the time
and on the date of

the Intial Closing.

15. Afer the Initial Closing, the Secured Parties may, in their discretion, tile a copy
of

this Final Order as a financing statement with any recording offcer designated to tile

financing statements or with any similar otlïce in any jurisdiction in which the Collateral is

located, and, in such event, the applicable fiing or recording officer or registrar is authorized to
file or record such copy of this Final Order.
i 6. Aller the Initial Closing and prior to the earlier of the Final Closing and the

Termination Date (as defined in the Purchase Agreement), until such time as all Limited
Recourse DIP Obligations are indefeasibly paid in lull in cash and (he commitments thereunder

are terminated in accordance with the Limited Recourse DIP Financing Documents, the

Borrowers shall not in any way prime or otherwse adversely affect the liens on the Collateral
granted under this Final Order by granting a subsequent lender or a pary-in-interest a. superior or
pari passu lien pursuant to sections 364 of

the Bankruptcy Code or otherwise.

17. After the Initial Closing and prior to the earlier of the Final Closíng and the

Termination Date (as defined in the Purchase Agreement), until such time as all Limited
Rccourse DIP Obligations arc indefeasibly paid in full in cash and the commitments thereunder

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are tennInated in accordance with the Limited Recourse DIP Financing Documents, the
Borrowers shall not create, permit, or suffer to exist any liens on the Collateral othcr than
Permitted Liens.
18. After the Ttiitial Closing and prior to the earlier or the Final Closing and the

Termination Date (as defined in the Purchase Agreement)~ neither the Collateral nor the Secured
Parties shall be subject to surcharge, pursuant to sections lOS(a) or 506(c) of

the Bankruptcy

Code or otherwise, by

any of

the Borrowers or any other party, and no such consent shall be

implied fro11 any action, inaction, or acquiescence by the Secured Parties, provided. however.

that the Borrowers may use the Collateral to pay the disbursements set fort in the Budget (as
defined in the Purchase AgTeement) that were properly and actually incurred by the Borrowers

prior to the Final Closing Date; provided further. however. that all rights of B of A under the
Cash Collateral Order arc hereby prcserved.
19. in no evcnt shall the Secured Parties be subject to the equitable doctrine of

"marshallng" or any similar doctrine with respect to the CollateraL.
20. Notwithstanding anything in this Final Order to the contrary, the licns and

security interests granted to the Adminístrative Agent shall not extend to any assets that are not
CollateraL.

REMEDIES
21. Not withstanding the provisions of section 362 of the Bankruptcy Code and

without any further order of, or applicatíon or motion to, the Court, in the event of

the occurrence

or an Event ol'DelliuH, and at all times thereafter, and wlthout any restnetîon or restraint by

any
the liens and security

st.'lY under section 362 of

the Dankruptcy Code against the enforcement of

inter~sts or any other rights granted in the Collateral to the Secured Parties pursuant to the

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I

Limited Recourse DlP Financing Documents, ~e Administrtive Agent ma, by writtn notice to
the Borrowers as provided in the Limited RecoJrse DIP Financing Documents, (a) terminate
forthwith all or any portion of

the Limitcd Recourse VIP Facilty and the Secured Parties'

Qbligatíol1 to make any further loans or advances) (b) declare the Limited Recourse DIP
ObJígations to be immedíate1y due and payable, and (c) subject to the Limited Recourse

Provisions, exercise the sole rights and remedies against the Collateral allowed under
Paragraph 7 of the Interim Order, Paragraph 7 of this Final Order and Section 3.05 of

the

T .1mited RecOUTse DIP Financing Documents.
22. The autumaIÍc stay ímposed under section 362(a) of

the Bankrptcy Code is

hereby lifted to grant the liens and security interests to the Secured Paries contemplated by the
Limited Recourse DIP Financing Documents and this Final Order, and subject to the Limited
Recourse Provisions, is further lifted to the extent of the exercise by the Secured Partíes of any

rights or remedies permitted under this Final Order and under the Linúted Recourse DIP
Financing Documents.

OTHER PROVISIONS
23. Use of Proceeds. From and after the Initial Closing, the Borrowers shall use the

proceeds of the Loans solely in accordance wÎth and subject to the conditions set forth in this

Final Order and the I ,ímited Recourse nip Financing Docuiients. Nothing in this Final Order
shall be construed to require the Lenders to make advances or extem;íons of credit or other
financial accommodations to pem1ît the Borrowers to makc any payments, except to the extent

expressly provided tor in this Final Order and the Limited Recourse DIP Financing Documents.
24. Bank Accounts. Any prüceeds of

the sale, lease or other disposition oftlic
the Secured Parties, shall be used in accordance with

Collateral, including all Cash Collat.eral of

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the provisions ofthís Final Order and the Limited Recourse DIP Financing Documents and shall
be applied in payment olth~ BOTIowers' obligations under, and in the manner provided in, the

Limited Recourse DIP Financing Documents. The Borrowers are authorized and directed to
deposit such proceeds of

the Collateral into such account or accounts as the Administrative

Agent shall direct and as provided for in the Limited Recourse DIP Financing Documents, and
upon such deposit, such proceeds of

the Collateral shall become the sole and exclusive property

of

the Secured Parties and may be applied by the Administrative Agent against the Borrowers'

obligations as provided in the Limited Recourse DIP Financing Documents. The Borrowers are
deemed to have irrevocably waived any right to direct the manner of application or any payments
to the Secured Paries or any other receipts by the Secured Paries of proceeds of any of the
Collateral, includíng all of

the Lenders' Cash Collateral, other than as expressly set forth in this

Final Order and the Limited Recourse DIP Financing Documents. The Borrowers are hereby
directed to establish one or more bank accounts as provided in the Limited Recourse DIP
Financing Documents, into which all of

the Lenders' Cash Collateral shall be held.

25. Immediate Effectiveness. Notwithstanding Banuptcy Rules 6004(h), 6006(d),
7062, or 9014 of the Bankrptcy Rules or any other Bankniptcy Rule, or Rule 62(a) of

the

Federal Rules of

Civil Procedure, this Final Order shall be immcdiatcly effective and enforceable
execution or elTectiveness of

upon its entry and there shall be no stay of

this Final Order.

26. SurvivaL. (a) The terms and provisions of

this Final Order and the Limited

Recourse DIP Financing Documents, and the liens and security interests granted to the
Adminjstrat¡v~ Agent and payment provísíon¡; contained in thís Fínal Order and the Limited

Recourse DJP Financing Documtnls shall continue in full fbfce and eflect nntil the Limited

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Recourse DIP Obligations are indefeasibly paidlin full in cash, and Limited Recourse DIP
Financing Documents are terminated.

i ,
I i

(b) The liens, security interests and other rights and remedies granted to the Secured
Parties by the provisions of

this Final Order, as well a'l the Borrowers' (ibligaHons pursuant 10

the Limited Recourse DIP Financing Documents and this Final Order, shall continue beyond and

survive ihe expiration of this Final Order, and, to the extent pemiitted by applicable law, shall

not be modified, altered or impaired in any maiier by (a) any other financing or extension of
credit Or incurrence olindebtedness by any of

the Borrowers under section 364 ofthe

Bankruptcy Code or otherwise (except as contemplated by the Limited Recourse DIP Financing

Documents), (b) the entry of an order or orders confim\ing any plan or plans of reorganization or
liquiùation in these cases, or (c) the entry of an order converting these cases to cases under

chapter 7 ofthe Bankuptcy Code, suspending, or dismissing these cases.
(c) This Final Order and DIP Pinancing Documents shall be valid, binding and

enforceable by the Secured Parties against the Borrowers, their respective successors and

assigns, including, without limitation, any chapter 11 or chapter 7 trustee appointed as a
representative of any of the Borrowers' estates;

provided, the Secured Paries shall have no

obligation to extend any Jinancing to any such chapter 11 or chapter 7 trustee or similar person.
(d) If

any provision ofthís Final Order is hereafter modified, vacated, reversed or

stayed by subsequent order of this or any other cour for any reason, such modification, vacation,

reven;al or stay shall not alfèct the validity and priority of any orihe Liniited Recourse DIP
Obligations incurred under. this Final Order and the Limited Recourse DIP Financing Documents, and, prior to the effective date of any such modification, vacatíon, reversal or stay,
the validity, enforceabilty or priority of

the LImited Recourse DIP Obligations shall be governed

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in all respects by the original provisions of

this Final Order, and the Secured Parties and Lender-

Related Paries shall be entitled to all the rights, privileges and benefits granted herein. The

transaclions contemplated by the Limited Recoure DIP Facilty have been entered into by the
Secured Partes in good faith, and, as a result, the Secured Parties are entitled to the protections
afforded by Section 364( c) of the Bankrptcy Code in the event of any reversal or modilícatíon
of

this Final Order.
(e) Under no circumstances, except with the written consent of

the Administrative

Agei"l, shall the liens, rights and remedies granted to the Secured Parties pursuant to or in
connecLíon with the I.ìmited Recourse DIP Financing Documents and this Final Order be

modí /led, altered or impaired in any manner by a chapter 11 plan or order of confirmation of a
chapter 11 plan for any of

the Borrowers.

27. No Waiver of Secured Parties' Rhihts. Notwithstanding anything to the
contrary herein, the entry of

this Pinal Order is without prejudice to, and does not constitute a
the rights of

waiver of, expressly or implicitly, or otherwise impair any of

the Secured Paries

under the Bankruptcy Code or under non-bankruptcy law.
28. Conflcts. To the extent of any conflct between or among the express tcrffS or

provisions of any of

the Limited Recourse DIP Financíng Documents and the Motion, the terms

and provisions of the Limited Recourse nip Fínuncing Documents shall govern. To the extent oj'

any conflct between or among the express terms or provisions of any of the Limited Recourse
DIP Financing Documents or the MotiOl"l on the one hand, and the terms and provisions of

this

Final Order on the other hand, the terms and provisions of this Final Order shall govem.

29. Amendments. The BOTTowers and the Secured Parties may lìnalize, amend,
modify, supplement or waive any provision of

the Limited Recourse DIP Financing Documents

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if such amendment, modification, supplement or waiver is permitted under the terms of the

Limited Recourse DIP Pinancing Documents and is not material (in the good faith judgment of

the Secured Parties and the Borrowers) without any nccd to apply to, or receive furher approval
from, the Court.

30. No Third Part Beneficiaries. No third party is intended to be or shall be
deemed to be a third party benelíciary of

the provisions ofthìs Final Order or the Limited

Recourse DIP Pinancing Docmncnts.

31_ Purchaser A2:rccmcnt Obliliations. Notwithstading anything else in the
Interim Order, this Final Order or the Limited Recourse DIP Financing Documents to the
contrary, (a) in the event of any conflct between terms and provisions of

the Limited Recourse

DIP Financing Documents and thc Sale Order or the Purchase Agreement) the terms and

provisions of the Sale Order and the Purchase Agreements shall prevail, and (b) nothing in the
Interim Order, this i'Ïnal Order or the Limited Recourse DIP Financing Documents is intended

to, nor shall it 0) limit, modify or affect the obligations of AH Mortgage Acquisition as
"Purchaser" under the Purchase Agreement, including, without limitation the obligation of AH
Mortgage Acquisition to provided liquidity or working ca.pital in accorda.nce in Section 6.2 ofihe

Purchase Agreement, or (ii) expand or increase the obligations of the Borrowers under the
Purchase Agreement. Any failure or inabilty of

the Borrowers to perform or comply with their

obligations under the Purchase Agreement that is due to the exercise by the Secured Paries of
theír remedies pùrsuant to Paragraph 7 olthe Interim Order, Paragraph 7 of

this Final Order or

the Limited Recourse DIP Financing Documents shall not constitute a defàult or be deemed a

breach by the Borrowers oftlieir obligations to the Purchaser under the Purchase Agreement.

wLS~

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32. Retention of Jurisdiction. The Court shall retain jurisdiction to hear and
determine all matters arising from this Final Order and its implementation.
33. Headinfls. Paragraph headings used herein are solely for a convenience and shall

convey no substantive import.

Dated: Novemberii, 2007
Wilmington, Delaware

¡J~S~JUÐGE

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EXHIBIT 2

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IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWAR

Inre
BUFFETS HOLDINGS, INC.,
a Delaware corporation, et ai. i

) Chapter 11

)

) Case No. 08-10141 (MFW)
)
) Jointly Administered

Debtors.

)
) Related Docket Nos. 16,39,61

)

FINAL ORDER (I AUTHORIZING DEBTORS (A) TO OBTAIN POST-PETITION SENIOR SECURED SUPER.PRIORITY FINANCING PURSUANT TO 11 U.S.C. §§ 105,361,362, 363(c)(2), 364(c), 364(d)(1) AND 364(e) AND (B) TO UTILIZE CASH COLLATERAL OF PRE-PETITION LENDERS, AND (m GRATING ADEQUATE PROTECTION TO PREPETITION LENDERS PURSUANT TO 11 U.S.c. S§ 361. 362. 363 AND 364
Upon the motion (the "Motion") dated Janua 22, 2008 (the "Petition Date") of

Bufets, Inc. and its affliated debtors, each as debtor and debtor-in-possession
(collectively, the "Debtors"), in the above-captioned chapter 11 cases (the "Cases")
pursuat to sections 105,361,362, 363(c)(2), 364(c), 364(d)(1) and 364(e) of

title 11 of

the United States Code, 11 V.S.C. §§ 101 et seq. (as amended, the "Banptcy Code"),
C' C and Rules 2002, 4001 and 9014 of the Federal Rules of

Banptcy Procedure (the

"Banptcy Rules"), seeking, among other thgs:
(1) authorization for Buffets Inc. (the "Borrower") to obtain postpetition debtor-in-possession financing (the "Financing"), and for each of

the

i The Debtors in these cases, along with the last four digits of each Debtor's federal ta identification
number, are: Buffets Holdings, Inc. (4018); Buffets, Inc. (2294); HomeTown Buffet, Inc. (3002); QCB Restaurat Company, LLC (7607); aCB Puchasing Co. (7610); Buffets Leaing Company, LLC (8138);

Ryan's Restaurant Group, Inc. (7895); Buffets Frachise Holdigs, LLC (8749); Tahoe Joe's, Inc. (7129); HomeTown Leasing Company, LLC (8142); OCB Leasing Company, LLC(8147); Big R Procurement
Company, LLC (5198); Ryan's Restaurt Leasing Company, LLC (7405); Fire Mountain Restaurts,

LLC (8003); Ryan's Restaurant Management Group, LLC (6739): Tahoe Joe's Lesing Company, LLC (8145); Fire Mountain Leasing Company, LLC (7452); Fire Mountain Management Group, LLC (7299).
The address for all of

the Debtors is 1460 Buffet Way, Eagan, MN 55121.

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other Debtors (collectively, the "Guarantors") to guaanty the Borrower's

obligations in connection with the Financing, up to an aggregate principal amount
of $285,000,000 (the "Financing Amount") (the actu available principal amount

at any time being subject to those conditions set forth in tht certn Senior
Secured Super Priority Debtor In Possession Credit Agrement (the "DIP Credit
Agreement" and, together with tht certn Facilty Fee Letter dated Janua 22,

2008 and each of

the other Loan Documents (as defined in the DIP Credit

Agreement), the "DIP Documents"), from Credit Suisse, Cayman Islands Branch

("Credit Suisse"), as Administrative Agent (in such capacity, the "Agent") for
itself and the ban and other financial institutions or entities that may become

pares to the DIP Credit Agreement from time to time (together with Credit

Suisse and including the frontig and issuing ban for the letters of credit, and in
such capacities, the "DIP Lenders"), to be aranged by Credit Suisse Securties

(USA) LLC ("CS Securities"), as Sole Lead Aranger and Sole Bookrer, and,

at the option of CS Securities, one or more financial institutions as Syndicaton

Agent. The Financing consists of (i) an $85,000,000 New Money Facilty (as that
term is defined in the DIP Credit Agreement) and (ii) a $200,000,000 Rollover

Facilty (as that term is defined in the DIP Credit Agrement);
(2) authorization for the Debtors to execute and enter into the DIP

Documents and to perform such other and fuer acts as may be required in

connection with the DIP Documents;

2
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(3) the granting of adequae protection of

the securty interests and

liens (such securty interests and liens the "Pre-Petition Liens") of the lenders
(such lenders in such capacities, the "Pre-Petition Lenders") to that certai Credit

Agreement dated as of

November 1, 2006 as amended from time to time among

the Borrower, Bufets Holdings, Inc. ("Holdin&!s"), the lenders named therein,

Credit Suisse, as Administrative Agent, CS Securities and UBS Securties LLC,
as Joint Bookrers and Co-Lead Arrangers, UBS Securities LLC, as

Syndication Agent and Goldman Sachs Credit Parers L.P " as Documentation

Agent (the "Existing Credit Agreement"), which adequate protection is grated

until the DIP Pay-Out (as defied below);
(4) (a) authorization for the Debtors to use cash collateral (as defied

in the Banptcy Code) in which the Pre-Petition Lenders haye any interest and
(b) the granting of adequate protection to the Pre-Petition Lenders with respect to,

inter alia, such use of cash collateral and all use and diminution in the value of
the Pre-Petition Lenders' interest in the Debtors' interest in the Pre-Petition
Collateral (as defined in paragraph 16 herein);
(5) the granting of superpriority admsttive expense clais to the

Agent and the DIP Lenders payable from, and having recourse to, all pre-petition
and post-petition propert of

the Debtors' estates (including property tht

curently constitutes Pre-Petition Collatera) and all proceeds thereof, subject only
to the Care-Out (as defined in paragraph 6 herein) and the grantig offirst

priority priing liens for the benefit of

the Agent and the DIP Lenders in all DIP
3

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Collateral (as defined in paragraph 7 herein) in accordance with the Securty
Docwnents (as defined in the DIP Credit Agreement) and this Final Order to
secure any and all of

the DIP Obligations (as defined in paragraph 4 herein);

(6) the granting to the Borrower of a superpriority claim agaist each

of the other Debtors tht is equal to the net amount of fuds trsferred by the
Borrower to the other Debtors afer the Petition Date, which claim shal be junior
in priority only to the Superpriority Clai (as defined in pargraph 6 herein) and

the Section 507(b) Claim (as defined in paragraph 14 herein);
(7) upon entr of ths Final Order, (a) the limtation of

the Debtors'

and their estates' right to surcharge against the DIP Collateral puruant to section
506(c) of the Banptcy Code and (b) the conversion of

up to $200,000,000 of

the Debtors' obligations under the Existing Credit Agreement into post-petition
debt under the DIP Credit Agreement (the "Roll-Up");

(8) pursuat to Banptcy Rule 4001, that an interim hearing (the
"Interim Hearing") on the Motion be held before ths Cour to consider entr of an

interim order (the "Interi Order") (a) authorizing the Borrower, on an interim

basis, to borrow in a single drawig under the DIP Documents up to an aggregate
principal or face amount not to exceed $30,000,000, subject to any limitations of
credit extensions under the DIP Documents (the "Maximum Interim Borrowing"),

(b) granting the DIP Liens (as defied in paragraph 7 herein) and the
Superpriority Clai to the DIP Lenders, (c) authorizing the Debtors' use of cash

4
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collateral of the Pre.Petition Lenders and (d) granting the adequae protection

described therein; and
(9) that this Cour schedule a final hearg (the "Final Hearng") to be
held within thirt days of the entr of the Interim Order to consider entr of a

final order (the "Final Order") authorig, inter alia, (a) the balance of

the

borrowigs under the DIP Documents on a final basis and (b) the Roll-Up, as set

fort in the Motion and the DIP Documents.
Due and appropriate notice of the Motion under the cÍrcmnstaces and in
accordance with section 102 of the Banptcy Code and Banptcy Rules 400 1

(b) and

(c), the relief

requested therein and the Final Hearng having been served by the Debtors

on the forty largest unsecured creditors of the Debtors on a consolidated basis as certified
by the Debtors or their noticing agent, counsel to the Agent, counsel to the adistrative

agent under the Existing Credit Agreement, counsel to the indentue trstee for the

Debtors' 12 1/2% senior notes (the "Notes"), counsel to the official committee of

unsecured creditors appointed in the Cases (the "Creditors' Commttee"), the Offce of
the United States Trustee for the Distrct of Delaware, and the other pares listed in the

Notice of Interim Order and Final Hearing of Debtors' Request for Post-Petition
Financing, Use of

Cash Collateral and Related Relief, fied with ths Cour on Janua

24, 2008 (Docket No. 62).
The Interim Hearing having been held by this Cour on Januar 23, 2008 and tls

Cour having entered the Interim Order on Janua 23, 2008. The Fina Hearng having
/

been held and concluded before this Cour on Febru 22, 2008.
5
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Upon the record made at the Interim Hearing and the Final Hearg, the record of

the Cases and the Affdavit of

Keith Wall in Support of

First Day Motions (the "Wal

Affdavit") and afer due deliberation and consideration and sufcient cause appearing
therefor;

IT is FOUND, DETERMIND, ORDERED AND ADJUGED, that:1
1. Disposition. The Motion hereby is granted on the terms set forth herein.

Any objections to the relief sought in the Motion tht have nút previously been resolved
or withdrawn hereby are overred on the merits. Ths Final Order shall be valid, binding
on all

paries in interest and fully effective immediately upon entr by this Cour.
2. Jurisdiction and Venue. Ths Cour ha core jursdiction over the Cases,

this Motion, and the paries and property affected hereby puruant to 28 U.S.C. §§ 157(b)
and 1334. Venue is proper before ths Cour pursuant to 28 U.S.C. §§ 1408 and 1409.
On Januar 29, 2008, the Offce of

the United States Trustee appointed the Creditors'

Committee pursuant to section 1l02(a)(1) of

the Banptcy Code.

3. Notice. Under the circumstaces, the notice given by the Debtors and .

their noticing agent of the Motion, the Interim Hearing and the Final Hearng eúnstitutes

due and sufficient notice thereof and complies with section 102 of the Banptcy Code

and Banptcy Rules 4001(b) and (c).
4. Findings Regarding the Financing.
ths Fina Order.

(a) Good cause has been shown for the entry of

i Findings of fact shall also constitute conclusíons of law, and conclusions of law shall also constitute
findings offact.

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(b) The Debtors have an imedate need to obta the Financing and

use Cash Collatera (as defined in paragrph 12 herein) to permt, among other thngs, the
orderly continuation of the operation of their businesses, to maintain business

relationships with vendors, suppliers and customers, to make payroll, to make capita
expenditues, to pay the costs of adminstration of their esttes and t.o satisfy other

working capital and operational needs. The Debtots' access to sufficient working capitaI
and liquidity though the use of Cash Collateral, incurence of

new indebtedness and

other finacial accommodations is vital to the preservation and maitenance of the going
concern values of the Debtors and to a successful reorganization of

the Debtors.

( c) The Debtors are unable to obta financing on mote favorable

terms from sources other than the DIP Lenders under the DIP Documents and are unable
to obtain adequate unsecured credit allowable under section 503(b)(1) of

the Banptcy

Code as an adnistrtive expense. The Debtors also are unable to obtai secured credit
under sections 364(c) or 364(d) of

the Banptcy Code on equal or more favorable terms

than those set fort in the DIP Documents within the time frame required by their needs
to avoid imediate and irreparable har. A loan facilty in the amount and under the

terms provided by the DIP Docwnents is not avaiable without the Debtors granting to the

Agent and the DIP Lenders, subject to the Care-Out as provided for herein, the DIP
Liens and the Superpriority Clai under the terms and conditions set fort in the DIP

Docwnents.
(d) The tenns of the Financing and the use of Cash Collatera are fair

and reasonable, reflect the Debtors' exercise of prudent business judgment consistent
7
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with their fiduciar duties and constitute reasonably equivalent value and fair

consideration. For the avoidance of doubt, the signatue of any offcer of each one or
more of the Debtors, appearng on anyone or more of

the DIP Documents shall bind the

Debtors. No approval of

the board of directors or any other approval shall be necessar.

(e) The Financing has been negotiated in good faith and at ar's
lengt among the Debtors, the Agent, the DIP Lenders and their repective afliates. All

of

the Debtors' obligations and indebtedness arsing under, in respect of or in connection

with the Financing and the DIP Documents, including, but not limited to, (i) all loans

made to the Debtors pursuant to the DIP Documents and (ii) all Obligations incured (as
defined in the DIP Credit Agreement) (collectively, the "DIP Obligatons"), have been

extended by the Agent and the DIP Lenders in good faith, as that term is used in section
364(e) of

the Banptcy Code and in express reliance upon the protections offered by
the Banptcy Code. The Agent and the DIP Lenders shall be entitled

section 364(e) of

to the full protection of section 364(e) of

the Banptcy Code in the event that this Final

Order or any provision herein is vacated, reversed or modified, on appeal or otherwse.
(t) The Pre-Petition Lenders are entitled to rely upon the terms and

enforceabilty ofthís Fina Order inasmuch as the Pre-Petition Lenders' liens and security
interests shall be junior to the DIP Liens.
(g) The Debtors have requested entr of

ths Final Order pursuant to

Banptcy Rules 4001(b)(2) and 4001 (c)(2). Absént the relief

in this Final Order, the
the

Debtors' estates will be immediately and irreparably hared. Consumation of

Financing, therefore, is in the best interest of

the Debtors' estates.
8

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5. Authorization of

the Financing and the DIP Documents.

(a) The Debtors hereby are authorize to enter into the DIP

Documents. The Borrower hereby is authorized to borrow money pursuant to the DIP
Documents in the principal ammint of up to the Financing Amount. The Guarantors

hereby are authorized to guaranty such borrowigs in an aggregate principal or face
amount of up to the Financing Amount (plus interest, fees and other expenses provided
for in the DIP Documents), subject to any liitations of

borrowigs under the DIP

Documents. In accordance with the term of

ths Final Order and the DIP Documents,

the borrowings under the DIP Documents shall be used solely for purses pennitted

under the DIP Documents.
(b) In fuerance of the foregoing and without fuer approval of

this

Cour, each Debtor is authorized and directed to perform all acts, to make, execute and
deliver all instrents and documents (including the execution or recordation of securty

agreements, mortgages and financing statements), and to pay from the borrowigs under

the DIP Documents interest, fees and expense reimbursements, includig all fees
(including, but not limited to, an anual adinistrative agent fee of

$200,000 and an

arangement fee of $250,000) and expnse reimbursements of Credit Suisse and CS

Securities, and the reasonable fees and expense reimbursements oftheIr attorneys,
financial advisors and other professionals, and the reaonable fees and expenses of the
attorneys for each of the DIP Lenders; provided

that such attorneys, financial advisors

and other professionals shall issue invoices to the Debtors with copies to counsel to the

Creditors' Commttee, counsel to any other statutory committee, and the Office of the
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United States Trustee, and provided further that the Debtors shall promptly pay al
reasonable fees and expenses not subject to objection by the Creditors' Commttee or the
Offce of

the United States Trutee within ten business days afer receipt of such

invoices, and provided further that Blackstone shall be paid in accordance with that

certai agreement dated December 13,2007 (the "Blackstone Engagement Letter"),
which payment shall include the Restrctug Fee (as tht term is derined in the

Blackstone Engagement Lettr), that may be required or necessar for the Debtors'
performance of

the DIP Obligations, including:
(i) the execution, delivery and performance of

the DIP

Documents and any exhbits attached thereto;
(ii) with the express written consent of

the Agent and the DIP

Lenders in accordance with the DIP Credit Agreement, the execution,

delivery and performance of one or more amendments to the DIP

Documents for, among other things, the purose of (A) adding additional
financial institutions as DIP Lenders, (B) reallocatig the commtments for

the Financing among the DIP Lenders or (C) implementing this Order;
(iii) making the non-refudable payment to Credit Suisse, CS

Securities or the DIP Lenders, as the case may be, of all of the pricipal,
interest, charges, fees and the reimburement of expenses, all of which
unpaid principal, interest, chages, fees (including, but not liited to, an

administrtive agent fee of $200,000 and an arangement fee of $250,000
to Credit Suisse and CS Securities) and expenses shal be included in and
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constitute par of

the principal amount of

the DIP Obligations (subject

only to the Creditors' Committe's chalenge rights with respect to the
Roll-Up as set fort in pargraph 19 of

ths Final Order), be deemed a

Superpriority Claim and be secured by a first priority lien on and securty
interest in all of

the DIP Collateral as and to the extent provided for in ths

Final Order and the DIP Documents (for the avoidance of doubt, all fees

and expense reimburements of Credt Suisse or CS Securties shall be
deemed fully eared when paid by the Debtors, and shall not be subject to

disgorgement by Credit Suisse or CS Securties for any reason, including
as a result of a successfu Challenge or Excepted Challenge (as such tenns

are defined in paragraph 19 below));
(iv) the performance of all other acts requied under or in

connection with the DIP Documents; and
(v) with the express wrtten consent of

the administrative agent

under the Existing Credit Agreement, the execution, delivery and

performance of one or more amendments to the Existing Credit
Agreement for, among other thgs, the purose of implementing this

Final Order.

(c) The DIP Documents shall and hereby do constitute valid and
binding obligations of the Debtors, enforceable agait each Debtor par thereto in
accordance with the terms of

the DIP Documents. No DIP Obligation, payment, transfer

or grant of security under the DIP Documents or tlus Final Order shall be stayed,
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restrained, voidable or recoverable under the Banptcy Code or under any applicable
law (including under section S02(d) of

the Banptcy Code), or subject to any defense,

reduction, setoff, recoupment or counterclaim (subject only to the Creditors' Committee's
challenge rights with respect to the Roll-Up as set fort in paragraph 19 of

this Final

Order).
6. Superpriority Claim.
the Banptcy Code, all of

(a) Pursuat to section 364(c)(1) of

the

DIP Obligations (including the Roll-Up) shall constute an allowed claim, subject to
payment of

the Care-Out (the "Suoer,rioritv Claim") agaist each Borrower and each

Guarantor, with priority over any and all adminstative expenses, diinution clais
(including all Adequate Protection Obligations (as defined in paragraph 14 herein)), all
clais of any kid asserted by the Pre-Petition Lenders, and all other clais against the

Debtors, now existing or hereafter arsing, of any kind whatsoever, including all
administrative expenses of the kid specified in sections 503(b) and 507(b) of

the

Banptcy Code, and over any and all administrative expenses or other clais arsing
under sections 105, 326, 328, 330, 331, 503(b), 506(c), 507, 546(c), 726, 1113 or 1114 of
the Banptcy Code, whether or not Such expenses or claims may become secured by a

judgment lien or other non-consensua

lien, levy or attchment, and which Superpriority

Clai shall be payable from and have recourse to all pre- and post-petition property of
the Debtors and all proceeds thereof (including proceeds of all claims and causes of
action under sections S02(d), 544, 545, 547, 548,549 and 550 of

the Banptcy Code, or

any other avoidace actions under the Banptcy Code or other applicable law
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(collectively, the "Avoidance Actions")), subject only to the payment of

the Care-Out to

the extent specifically provided for herein. Prior to the DIP Pay-Out (as defined below),

the Debtors shall deposit in escrow all money and other propert recovered arsing out of,
relating to, or in connection with any Avoidance Action (whether or not an adversar

proceeding is conuenced), and no such money and other propert shall be distrbuted to
any par other than the DIP Lenders until the DIP Pay-Out. DIP Liens (as defined in

paragraph 7 hereof) shall attach to the escrow accounts into which any money and other

property recovered arising out of, relating to, or in connection with any Avoidace
Action are deposited.

(b) The term "Care-Out" mea (i) the unpaid fees due and payable
to the Clerk of the Cour and the Offce of the UlÛted States Trustee pursuant to 28
U.S.C. § 1930; (ii) the accrued and unpaid fees and expenses incured by professionals
retained pursuant to an order of

ths Cour until the earlier of (x) the occurence of an

Event of Default (as defined in the DIP Documents), provided that accred and unpaid

professional fees and expenses incured afer an Event of Default which is waived or
cured, shall also be included in the Care-Out (so long as an unwaived or uncured Event
of Default has not occured and is not continuing) or (y) the conversion of

the Cases to

cases under chapter 7 of the Banptcy Code, provided that such fees and expenses
incured pursuant to either (ii)(x) or (ii)(y) must be approved by ths Cour; and (ii) the
accrued and unpaid fees and expenses incured by professionals retaied puruant to an

order of ths Cour upon and afer the occurence of an Event of Default and during the

continuance of such an Event of Default which is not waived or cured, or upon and after
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the conversion of the Cases to cases under chapter 7 of the Banptcy Code, in an
aggrgate amount not to exceed $600,000, plus any allowed fees and expnses reasnably

incured by professionals retained pursuant to an order of ths Cour solely in connection
with responding to requests a chapter 7 trstee appointed by order of ths Cour for the

Cases makes of such professionals for tranmitt of documents in their possession. In no
event shal any of the Care-Out be used to pay any fees or expenses of any person

retained in a chapter 7 case under sections 326, 327 or 328 of

the Banptcy Code.

(c) No Loan (as defined