In re

UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE
Chapter II
Case No. 09-12416 (PJW)
ELECTROGLAS, INC., et a!.,
)
)
)
)
)
)
(Joint Administration Pending)
Debtors.
__________________________ )
Related Docket No. 13
INTERIM ORDER (I) APPROVING DEBTOR-IN-POSSESSION FINANCING
PURSUANT TO 11 U.S.C. lOS( a), 362, AND 364 AND FED. BANKR. P. 2002, 4001
AND 9014 AND LOCAL BANKRUPTCY RULE 4001-2; (II) AUTHORIZING USE OF
CASH COLLATERAL PURSUANT TO 11 U.S.C. SECTIONS lOS,
361,362 AND 363 OF THE BANKRUPTCY CODE; (III) GRANTING ADEQUATE
PROTECTION AND SUPERPRIORITY ADMINISTRATIVE CLAIMS;
QV) SCHEDULING A FINAL HEARING; AND (V) GRANTING RELATED RELIEF
Upon the motion (the "Motion") of Electroglas, Inc. ("Eiectrogias") and Eiectroglas
International, Inc. ("Electroglas International"), the debtors and debtors-in-possession
(collectively, the "Debtors") in the above-captioned Chapter 11 cases, pursuant to sections
105(a), 361,362,363 and 364 of title II ofthe United States Code, II U.S.C. 101, et seq.
(the "Bankruptcy Code"), Rules 2002,4001 and 9014 of the Federal Rules of Bankruptcy
Procedure (the "Bankruptcy Rules") and Local Rule 4001-2 of the Local Bankruptcy Rules for
the District of Delaware (the "Local Bankruptcy Rules"), seeking, pursuant to this interim
order (this "Interim Order"), among other things:
(1) authorization and approval, on an interim basis, for the Debtors to obtain
post-petition financing (the "DIP Facility") up to the aggregate principal amount
of $2,000,000 on the terms and conditions set forth in the Loan, Guarantee and
Security Agreement, substantially in the form attached as Exhibit A to the Motion
(the "DIP Credit Agreement"), and any security agreements, control agreements,
#ll217923 v2 Docket No. 40
July 13, 2009
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pledge agreements or other similar documents contemplated thereby (collectively,
with the DIP Credit Agreement, the "DIP Documents"), among Electroglas, as
borrower, International, as guarantor, and QVT Fund LP, Quintessence Fund L.P.,
Peninsula Master Fund Ltd. and Peninsula Technology Fund LP, as lenders
(collectively, the "DIP Lenders");
(2) authorization for the Debtors to execute and enter into the DIP Documents
and to perform such other and further acts as may be required in connection with
the DIP Documents;
(3) authorization, pursuant to sections 364(c)(2), 364(c)(3) and 364(d)(l) of
the Bankruptcy Code, to grant senior first-priority liens (as more fully described
in the DIP Documents, the "DIP Liens") to the DIP Lenders upon all property of
the Debtors' estates, which DIP Liens shall be subject only to the First Prepetition
Liens (as defined below) of Comerica Bank ("Comerica") and the Carve-Out (as
defined below);
(4) authorization, pursuant to section 364(c)(l) of the Bankruptcy Code, to
grant Superpriority Claims (as defined below) to the DIP Lenders with priority
over all administrative expenses, other than the Superpriority Claims granted to
Comerica and the Carve-Out;
(5) authorization for the Debtors to use Cash Collateral, other than Excluded
Cash Collateral (as each such term is defined below), in which Comerica and the
Note Parties (as defined below) have an interest;
(6) authorization to grant adequate protection, including, among other things,
Replacement Liens (as defined below) and Superpriority Claims to Comerica with
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respect to, inter alia, the DIP Liens and the Debtors' use of Cash Collateral and
all diminution in value of the Prepetition Collateral (as defined below), which
Replacement Liens and Superpriority Claims shall be senior in all respects to the
DIP Liens and Superpriority Claims granted to the DIP Lenders and the
Replacement Liens and Superpriority Claims granted to the Note Parties;
(7) authorization to grant adequate protection, including, among other things,
Replacement Liens and Superpriority Claims to the Note Parties, whose liens and
security interests are being primed by the DIP Lenders pursuant to
section 364(c)(l) of the Bankruptcy Code in connection with the DIP Facility and
pursuant to the DIP Documents, and with respect to the Debtors' use of Cash
Collateral and all diminution in value of the Prepetition Collateral; the Note
Parties' Replacement Liens and Superpriority Claims shall be junior and
subordinate in all respects to the DIP Liens and Superpriority Claims granted to
the DIP Lenders and the Replacement Liens and Superpriority Claims granted to
Comerica;
(8) authorization subject to, and only effective upon the entry of, the Final
Order (as defined below) granting such relief, to limit the Debtors' right to
surcharge against collateral pursuant to section 506( c) of the Bankruptcy Code;
(9) pursuant to Bankruptcy Rule 4001, an interim hearing (the "Interim
Hearing") on the Motion be held before this Court to consider entry of this
Interim Order which has been annexed to the Motion as Exhibit B; and
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(10) pursuant to the Interim Order, this Court schedule a final hearing (the
"Final Hearing") to consider entry of a final order granting all of the relief
requested in the Motion and DIP Documents on a final basis (the "Final Order").
The Interim Hearing having been held by this Court on July 13, 2009, and upon the
record made by the Debtors at the Interim Hearing and after due deliberation and consideration
and sufficient cause appearing therefor;
THE COURT HEREBY MAKES THE FOLLOWING FINDINGS OF FACT AND
CONCLUSIONS OF LAW:
I. Petition Date. On July 9, 2009 (the "Petition Date"), the Debtors filed voluntary
petitions for relief under Chapter II of the Bankruptcy Code (the "Cases"). The Debtors are
continuing in possession of their property, and operating and managing their businesses, as
debtors in possession pursuant to Bankruptcy Code 1107 and 1108. The Debtors have filed a
motion requesting joint administration of the Cases. No trustee or examiner has been appointed
in the Cases.
2. Jurisdiction and Venue. This Court has jurisdiction over the Cases and the parties
and property affected hereby pursuant to 28 U.S.C. 157(b) and 1334. This is a core
proceeding pursuant to 28 U.S.C. 157(b)(2). Venue is proper before this Court pursuant to 28
U.S.C. 1408 and 1409.
3. Committee Formation. An official committee of unsecured creditors has not yet
been appointed in the Cases.
4. Notice. Notice of the Motion and DIP Documents, the relief requested therein
and the Interim Hearing has been served by the Debtors on (i) the Office of the United States
Trustee, (ii) the DIP Lenders, (iii) counsel to Comerica, (iv) counsel to the Trustee and Collateral
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Agent (as each such term is defined below), (v) the Debtors twenty (20) largest unsecured
creditors, determined on a consolidated basis, and (vi) all other known holders of prepetition
liens, encumbrances or security interests against the Debtors' property. Under the
circumstances, such notice constitutes due and sufficient notice and complies with Bankruptcy
Rules 400l(b), 400l(c) and 4001(d), Local Bankruptcy Rule 4001-2 and section 102(1) ofthe
Bankruptcy Code in light of the emergency nature ofthe reliefrequested in the Motion, and no
further notice of the relief sought at the Interim Hearing and the relief granted herein is necessary
or required.
5. Necessity of Financing. The Debtors submit that the DIP Facility to be made
available by the DIP Lenders pursuant to the DIP Loan Agreement and the Debtors' use of Cash
Collateral will allow them to continue the operations of their businesses and administer and
preserve the value of their estates during the pendency of the Cases. The ability of the Debtors
to finance their operations during the pendency of the Cases requires the availability of
additional working capital, the absence of which would immediately and irreparably harm the
Debtors, their estates and their creditors and the Debtors' efforts to pursue and consummate the
sale of all or substantially all of their assets (the "Sale"). Entry of this Interim Order approving
the DIP Facility and the Debtors' use of Cash Collateral will benefit the Debtors and their estates
and creditors. Therefore, it is in the best interest of the Debtor's estates to establish the DIP
Facility contemplated by the DIP Loan Agreement and the other DIP Loan Documents and
authorize the Debtors' use of Cash Collateral, other than Excluded Cash Collateral, subject to the
terms and conditions in the DIP Loan Documents and as set forth in this Interim Order.
6. No Credit Available on Other Terms. The Debtors are unable to obtain unsecured
credit allowable under sections 503(b)(l), 364(a) or 364(b) of the Bankruptcy Code.
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7. Willingness to Lend. The Debtors are unable to obtain secured credit allowable
under sections 364(c)(l), 364(c)(2) and 364(c)(3) of the Bankruptcy Code without the necessity
of the Debtors granting to the DIP Lenders the DIP Liens and the Superpriority Claims under the
terms and conditions set forth in the DIP Documents and this Interim Order, subject to the
Carve-Out and the First Prepetition Liens, Replacement Liens and Superpriority Claims of
Comerica. The Debtors are unable to obtain financing from sources other than the DIP Lenders
or on more favorable terms than those set forth in the DIP Documents.
8. Business Judgment and Good Faith. The terms of the DIP Facility and DIP Loan
Documents and the use of Cash Collateral as described in the Motion and as set forth at the
Interim Hearing, including those which provide for the payment of interest to the DIP Lenders at
the times, in the amounts and in the manner provided under the DIP Credit Agreement are fair
and reasonable, reflect the Debtors' exercise of prudent business judgment consistent with their
fiduciary duties and constitute reasonably equivalent value and fair consideration. The DIP
Facility and use ofthe Collateral (as defined below), including Cash Collateral, were negotiated
in good faith (as that term is used in section 364(e) of the Bankruptcy Code) and at arm's length
among the Debtors, DIP Lenders, Comerica and the Note Parties (collectively, the "Prepetition
Lien Holders"), and all ofthe Debtors' obligations and indebtedness arising under, in respect of,
or in connection with the DIP Facility and the DIP Documents, including, without limitation,
(i) all loans made to the Debtors pursuant to the DIP Credit Agreement and (ii) any Obligations
or Indebtedness (as each such term is defined in the DIP Credit Agreement) permitted thereby, in
each case owing to the DIP Lenders or any of their respective affiliates (all of the foregoing
collectively, the "DIP Obligations"), shall be deemed to have been extended by the DIP Lenders
and their respective affiliates in good faith (as that term is used in section 364(e) of the
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Bankruptcy Code), and in express reliance upon the protections offered by section 364( e) of the
Bankruptcy Code, and shall be entitled to the full protection of section 364( e) of the Bankruptcy
Code in the event that this Interim Order or any provision hereof is vacated, reversed or
modified, on appeal or otherwise.
9. Property of the Estate. Each item of the Collateral constitutes property of the
estate of at least one Debtor.
10. Good Cause. Good and sufficient cause exists for the entry of this Interim Order.
The borrowings under the DIP Facility and the Debtors' use of Cash Collateral, other than
Excluded Cash Collateral, and the other relief requested in the Motion is necessary, essential,
appropriate and in the best interest of the Debtors, their creditors, and their estates, as the
implementation of the DIP Facility and access to Cash Collateral will, among other things,
(a) provide the Debtors with the liquidity necessary to minimize disruption to the Debtors'
businesses and on-going operations during the course of the Cases, (b) preserve and maximize
the value of the Debtors' estates for the benefit of all creditors, (c) enable the Debtors to pursue
and consummate the Sale, and (d) avoid immediate and irreparable harm to the Debtors and their
estates, their creditors, their businesses, their employees, and their assets.
11. Debtors' Acknowledgments and Agreements. Without prejudice to the rights of
any other party (but subject to the limitations thereon set forth in paragraph 40 of this Interim
Order), the Debtors admit, stipulate, acknowledge and agree that:
(i) ?repetition Senior Loan Agreement. Prior to the Petition Date,
Comerica made certain financial accommodations available to Electroglas under that certain
Loan and Security Agreement, dated as ofJuly 16, 2004 (as amended, modified or supplemented
and in effect from time to time, the "Senior Loan Agreement"), and all of the security, pledge,
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control, collateral and ancillary agreements and documents executed in connection with the
Senior Loan Agreement (together with the Senior Loan Agreement, collectively, the "Senior
Loan Documents"), including letters of credit in an aggregate stated amount of approximately
$40 I ,000 and a credit line associated with a corporate credit card account in an aggregate
principal amount of approximately $25,000. Electroglas is liable to Comerica for the foregoing
and for fees and expenses incurred in connection with the Senior Loan Documents as provided
therein (such fees and expenses, together with the letters of credit and credit line extension,
collectively, the "Senior Loan Obligations");
(ii) Prepetition Indenture. Prior to the Petition Date, Electroglas issued
its 6.25% Convertible Senior Subordinated Notes due 2027 (the "Notes") pursuant to that certain
Indenture, dated as of March 26, 2007 (as amended, modified or supplemented and in effect from
time to time, the "Indenture"), among Electroglas, as Issuer, Electroglas International and
certain other subsidiaries ofElectroglas, as Guarantors, and The Bank of New York Trust
Company, N.A. ("BNY"), as Trustee (acting in such capacity, for the benefit of itself and the
Noteholders, the "Trustee"), and all of the security, pledge, control, collateral and ancillary
agreements and documents executed in connection with the Indenture, including the Security
Agreement (as defined in the Indenture) under which BNY is the Collateral Agent (acting in
such capacity on behalf of itself, the Trustee and the Noteholders, the "Collateral Agent")
(together with the Indenture, collectively, the "Note Documents", and together with the Senior
Loan Documents, the "Prepetition Debt Documents"). Before taking into account claims for
make whole or other prepayment premiums or other fees and expenses under the Indenture,
Electroglas is truly and justly indebted and obligated to the Trustee, without defense,
counterclaim, avoidance, disallowance, subordination or offset of any kind in the aggregate
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amount of approximately $25.75 million in outstanding principal of Notes, plus any accrued and
unpaid interest. In addition, as of the Petition Date, Electroglas is liable to the Trustee for fees
and expenses incurred in connection therewith as provided in the Indenture (collectively, the
"Note Obligations", and together with the Senior Loan Obligations, the "Prepetition
Obligations");
(iii) Intercreditor Agreement. The Intercreditor and Subordination
Agreement, dated as of March 26, 2007, among Comerica, the Trustee, the Collateral Agent,
Electroglas and Electroglas International (as amended, modified or supplemented and in effect
from time to time, the "lntercrcditor Agreement"), is valid, binding and enforceable and, as
modified by that certain Consent and Release under Intercreditor Agreement, dated as of July 8,
2009, among Comerica, the Collateral Agent, Electroglas and Electroglas International (the
"Consent"), shall govern the respective rights and priorities hereunder of the ?repetition Lien
Holders;
(iv) Validity and Enforceability. (a) The ?repetition Debt Documents
are valid and enforceable by the ?repetition Lien Holders against the Debtors, (b) the ?repetition
Obligations constitute legal, valid, binding, and non-avoidable obligations of the Debtors and are
secured by valid, binding, enforceable, duly perfected first liens and security interests granted by
Electroglas to Comerica (the "First Prcpetition Liens"), and valid, binding, enforceable, duly
perfected second liens and security interests granted by the Debtors to the Collateral Agent (the
"Second Prepetition Liens", and together with the First ?repetition Liens, the "Prepetition
Liens") on and in substantially all of the Debtors' assets and property in the amount and to the
extent set forth in the ?repetition Debt Documents, including the proceeds derived therefrom
(collectively, the "Prepctition Collateral"), (c) the ?repetition Lien Holders duly perfected the
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Prepetition Liens by, among other things, filing financing statements, mortgages and fixture
filings and, where necessary, by possession of relevant instruments, certificates, cash or other
property, and all such financing statements, mortgages and fixture filings were validly executed
by, or at the direction or with the consent of, authorized representatives of the Debtors, (d) the
Prepetition Liens are subject to the Intercreditor Agreement and the Consent, (e) the First
Prepetition Liens are subordinate only to the Carve-Out, and (f) the Second Prepetition Liens are
subordinate only to the DIP Liens, First Prepetition Liens, Replacement Liens of Comerica, the
Superpriority Claims of Comerica, and the Carve-Out;
(v) No Challenges. (a) No offsets, challenges, objections, defenses,
claims or counterclaims of any kind or nature to any of the Prepetition Liens or Prepetition
Obligations (or to any amounts previously paid to the Prepetition Lien Holders on account
thereof or with respect thereto) exist, and no portion of the Prepetition Liens or Prepetition
Obligations (or any amounts previously paid to the Prepetition Lien Holders on account thereof
or with respect thereto) is subject to any challenge or defense including, without limitation,
avoidance, disallowance, disgorgement, recharacterization, or subordination (whether equitable
or otherwise) pursuant to the Bankruptcy Code or applicable non-bankruptcy law, (b) the
Debtors and their estates have no valid claims, objections, challenges, causes of actions, or
choses in action, including without limitation, Avoidance Action (as defined below), against the
Prepetition Lien Holders or against any of their respective affiliates, agents, attorneys, advisors,
professionals, officers, managers, members, directors or employees arising out of, based upon or,
related to the financial accommodations extended to the Debtors under the Prepetition Debt
Documents or the Debtors' incurrence of the Prepetition Obligations, and (c) the Debtors
irrevocably waive any right to challenge or contest the Prepetition Liens of the Prepetition Lien
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Holders on the Prepetition Collateral or the validity of the Prepetition Obligations or ?repetition
Debt Documents; and
(vi) Cash Collateral. All of the Debtors' cash constitutes Cash
Collateral (as defined below) or proceeds of the Prepetition Collateral and, therefore, is Cash
Collateral of the Prepetition Lien Holders. For purposes of this Interim Order, the term "Cash
Collateral" shall be deemed to include, without limitation: (i) all "cash collateral" as defined
under Bankruptcy Code section 363; and (ii) all deposits subject to setoff and cash arising from
the collection or other conversion to cash of property of the Debtors in which the Prepetition
Lien Holders assert security interests, liens or mortgages, regardless of (a) whether such security
interests, liens, or mortgages existed as of the Petition Date or arose thereafter pursuant to this
Interim Order, and (b) whether the property converted to cash existed as of the Petition Date or
arose thereafter; provided, that notwithstanding any provision in this Interim Order to the
contrary, the Debtors' use of Cash Collateral, as authorized in this Interim Order, shall exclude
the use of $451,000 securing the Senior Loan Obligations until the Senior Loan Obligations have
been paid in full and discharged in accordance with the provisions of the Senior Loan
Agreement; provided, further, that upon payment in full by the Debtors to Comerica of the credit
card charges following the termination of the credit card line with Comerica, $25,000 of the
$451,000 of Excluded Cash Collateral, less any portion of the Excluded Cash Collateral used to
pay on the credit card line, shall become immediately available for use by the Debtors in
accordance with this Interim Order.
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Based on the foregoing,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that:
12. Motion Granted. The Motion is granted in accordance with the terms and
conditions of this Interim Order. Any objections to the Motion with respect to entry ofthis
Interim Order that have not been withdrawn, waived or settled, and all reservations of rights
therein, are hereby denied and overruled.
13. Authorization of the DIP Facility and DIP Documents. The Debtors are hereby
authorized, pursuant to the terms of this Interim Order and the DIP Documents, to enter into the
DIP Credit Agreement and other DIP Documents and borrow funds under the DIP Facility up to
an aggregate amount of$2,000,000, subject to entry ofthe Final Order and satisfaction of the
other conditions precedent to additional borrowings set forth in the DIP Credit Agreement, and
incur and pay interest and all fees and expenses provided for in the DIP Documents payable to
the DIP Lenders and/or their counsel or other retained professionals; provided, that the Debtors
are authorized to borrow, on an interim basis, up to an aggregate principal amount of $1,000,000
during the period from the date of entry of this Interim Order until the date of entry of the Final
Order, in accordance with, and subject to, the terms of the DIP Financing Documents and this
Interim Order. The Debtors' use of borrowings under the DIP Facility and Cash Collateral shall
be in accordance with the Original Budget (as defined below) and subsequent budgets.
14. In furtherance of the foregoing and without further approval of this Court, each
Debtor is authorized and directed to perform all acts, to make, execute and deliver all
instruments and documents (including, without limitation, the execution or recordation of
security agreements, mortgages and financing statements), and to pay all fees and expenses of
the DIP Lenders and their counsel, or otherwise, that may be reasonably required or necessary
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for the Debtors' performance of their obligations under the DIP Facility, including, without
limitation:
(i) the execution, delivery and performance of the DIP Loan
Documents;
(ii) the execution, delivery and performance of one or more waivers,
consents or amendments to the DIP Credit Agreement, in each case in such form as the Debtors
and the DIP Lenders may agree, which do not (a) materially modify the DIP Credit Agreement
as approved by this Interim Order, (b) shorten the maturity of the extensions of credit thereunder,
(c) increase the commitments of the DIP Lenders (the "DIP Commitments") or the rate of
interest thereunder, (d) change any Event of Default under and as defined in the DIP Credit
Agreement (a "DIP Event of Default"), or add, remove or amend any covenants therein, or
(e) adversely affect the rights of the Prepetition Lien Holders as set forth in this Interim Order;
and
(iii) the execution, delivery and/or performance of all other documents
and acts required under or in connection with the DIP Documents.
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15. Upon execution and delivery of the DIP Documents, the DIP Documents shall
constitute valid and binding obligations of the Debtors, enforceable against each Debtor in
accordance with the terms thereof. No obligation, payment, transfer or grant of security under
the DIP Documents or this Interim Order shall be stayed, restrained, voidable, or recoverable
under the Bankruptcy Code (including without limitation, under section 502( d) of the
Bankruptcy Code) or under any applicable non-bankruptcy law, or subject to any defense,
reduction, setoff, recoupment or counterclaim.
16. DIP Liens. As security for the DIP Obligations, effective and perfected upon the
date of this Interim Order and without the necessity ofthe execution, recordation of filings of
mortgages, security agreements, control agreements, pledge agreements, financing statements or
other similar documents, the following security interests and liens are hereby granted to the DIP
Lenders (the "DIP Liens") on all property identified in clauses (a), (b) and (c) below
(collectively, the "DIP Collateral", and together with the Prepetition Collateral, the
"Collateral"):
(a) First Lien on Cash Balances and Unencumbered Property. Pursuant to
section 364(c)(2) of the Bankruptcy Code, a valid, binding, continuing, enforceable, fully-
perfected first priority senior security interest in and lien upon all pre-petition and post-petition
property of the Debtors, whether existing on the Petition Date or thereafter acquired, to the
extent not subject to valid, perfected, non-avoidable and enforceable liens in existence as of the
Petition Date or valid liens in existence as of the Petition Date that are perfected subsequent to
such date to the extent permitted by Section 546(b) of the Bankruptcy Code (collectively,
"Unencumbered Property"), including without limitation, all cash and Cash Collateral of the
Debtors (other than the Excluded Cash Collateral) and any investment of such cash and Cash
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Collateral (other than the Excluded Cash Collateral), inventory, accounts receivable, other rights
to payment whether arising before or after the Petition Date, contracts, properties, plants,
equipment, general intangibles, documents, instruments, interests in leaseholds, real properties,
patents, copyrights, trademarks, trade names, other intellectual property, capital stock of
subsidiaries, all property purportedly assigned or pledged as collateral by any Debtor to secure
any intercompany obligations to the extent any such assignment or pledge shall not have been
duly perfected as of the Petition Date and the proceeds of all the foregoing; provided, however,
that the Debtors shall not be required to pledge to the DIP Lenders in excess of 65% of the
voting capital stock of its direct foreign subsidiaries, if any, or any of the capital stock or
interests of its indirect foreign subsidiaries, if any, if, in the good faith judgment ofthe Debtors,
adverse tax consequences would result to the Debtors, which adverse consequences are
demonstrated to the reasonable satisfaction of the DIP Lenders. Unencumbered Property shall
exclude the Debtors' claims and causes of action under sections 502(d), 544, 545, 547, 548, 549
and 550 of the Bankruptcy Code, or any other avoidance actions under the Bankruptcy Code
(collectively, "Avoidance Actions"), and any proceeds or property recovered, unencumbered or
otherwise the subject of successful Avoidance Actions but, upon entry of a Final Order, shall
include any proceeds or property recovered, unencumbered or otherwise the subject of successful
Avoidance Actions of any Debtor.
(b) Liens Priming Prepetition Second Liens. Pursuant to section 364( d)(!) of
the Bankruptcy Code, subject only to the First Prepetition Liens and Replacement Liens granted
hereunder to Comerica, a valid, binding, continuing, enforceable, fully-perfected first priority
senior priming security interest in and lien upon all pre-petition and post-petition property of the
Debtors including, without limitation, Cash Collateral (other than the Excluded Cash Collateral),
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inventory, machinery, accounts receivable, other rights to payment whether arising before or
after the Petition Date, contracts, properties, plants, equipment, general intangibles, documents,
instruments, interests in leaseholds, real properties, patents, copyrights, trademarks, trade names,
other intellectual property, capital stock of subsidiaries, and the proceeds of all the foregoing,
whether now existing or hereafter acquired, that is subject to the existing liens presently securing
the Note Obligations. Such security interests and liens shall be senior in all respects to the
interests in such property ofthe Collateral Agent arising from current and future liens of the Note
Parties (including, without limitation, the Replacement Liens granted to the Note Parties
hereunder), and shall be subject and subordinate only to (i) the First Prepetition Liens and
Replacement Liens granted hereunder to Comerica, (ii) the Carve-Out and (iii) any valid,
perfected and unavoidable interests of other parties, other than the Prepetition Lien Holders,
arising out of liens, if any, on such property existing immediately prior to the Petition Date, to
the extent expressly permitted under the Prepetition Debt Documents ("Permitted Prior Liens")
or to any valid, perfected and unavoidable interests in such property arising out of liens to which
the liens of the Prepetition Lien Holders become subject subsequent to the Petition Date as
permitted by section 546(b) of the Bankruptcy Code.
(c) Liens Junior to Certain Other Liens. Pursuant to section 364(c)(3) of the
Bankruptcy Code, valid, binding, continuing, enforceable, fully-perfected security interests in
and liens upon all pre-petition and post-petition property of the Debtors (other than the property
described in clauses (a) or (b) of this Section 16, whether now existing or hereafter acquired),
that is subject to valid, perfected and unavoidable liens in existence immediately prior to the
Petition Date, or to valid and unavoidable liens in existence immediately prior to the Petition
Date that are perfected subsequent to the Petition Date as permitted by section 546(b) of the
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Bankruptcy Code, which security interests and liens in favor ofthe DIP Lenders are immediately
junior only to such valid, perfected and unavoidable liens.
(d) Liens Senior to Certain Other Liens. The DIP Liens and the Replacement
Liens (as defined below) granted to the DIP Lenders shall be senior to and shall not be subject or
subordinate to (i) any lien or security interest that is avoided and preserved for the benefit of the
Debtors and their estates under section 551 of the Bankruptcy Code or (ii) any liens arising after
the Petition Date (other than any liens of Comerica) including, without limitation, any liens or
security interests granted in favor of any federal, state, municipal or other governmental unit,
commission, board or court for any liability of the Debtors other than as expressly permitted
under the DIP Credit Agreement.
17. DIP Lender Superpriority Claims. Pursuant to section 364( c )(I) of the
Bankruptcy Code, all of the DIP Obligations shall constitute allowed claims against the Debtors
with priority over all administrative expenses, diminution claims and all other claims against the
Debtors, now existing or hereafter arising, of any kind whatsoever, including, without limitation,
all administrative expenses of the kind specified in sections 503(b) and 507(b) ofthe Bankruptcy
Code, and over all administrative expenses or other claims arising under sections 105, 326, 328,
330,331, 503(b), 506(c), 507(a), 507(b), 726, 1113 or 1114 of the Bankruptcy Code
(collectively, the "Superpriority Claims"), whether or not such expenses or claims may become
secured by a judgment lien or other non-consensual lien, levy, or attachment or otherwise, which
allowed claims shall be payable from and have recourse to all pre-petition and post-petition
property of the Debtors and all proceeds thereof (including upon entry of the final order,
proceeds of Avoidance Actions); provided, however, that the Superpriority Claims granted to the
DIP Lenders shall be junior and subordinate in all respects to the Superpriority Claims granted to
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Comerica pursuant to this Interim Order and that, subject to the Carve-Out, no cost or expense of
administration under sections I 05, 503(b) or 507(b) shall be senior to, or pari passu with any
Superpriority Claims.
18. Protection of DIP Lenders' Rights.
(a) So long as there are any borrowings or amounts outstanding (other than
contingent indemnity obligations as to which no claim has been asserted when all other amounts
have been paid or are outstanding), any DIP Lender has a DIP Commitment outstanding under
the DIP Credit Agreement or any other DIP Obligations are outstanding, the Prepetition Lien
Holders shall (other than with the prior written consent of the DIP Lenders) (i) take no action to
foreclose upon or recover in connection with the Prepetition Liens, the Replacement Liens or any
other liens granted pursuant to any other agreements or operation oflaw, or otherwise exercise
remedies against any Collateral, except to the extent expressly authorized by a non-appealable
order of this Court, (ii) be deemed to have consented to any release of Collateral authorized
under the DIP Documents, (iii) not file any further financing statements, trademark filings,
copyright filings, mortgages, notices oflien or similar instruments, or otherwise take any action
to perfect their security interests in the Collateral unless, solely as to this clause (iii), the DIP
Lenders file financing statements or other documents to perfect the liens granted to them
pursuant to this Interim Order, or as may be required by applicable state law to continue the
perfection of valid and unavoidable liens or security interests as of the Petition Date, and (iv) not
seek to terminate or modifY the use of Cash Collateral, or obtain additional or different adequate
protection than as set forth in this Interim Order. Nothing herein shall permit the Prepetition
Lien Holders to take any action in violation of the Bankruptcy Code or other applicable law or
that is contrary to this Interim Order.
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#11217923 v2
(b) The automatic stay provisions of section 362 of the Bankruptcy Code are
vacated and modified to permit the DIP Lenders to exercise: (i) immediately upon the occurrence
of a DIP Event of Default, and at any times thereafter, all rights and remedies under the DIP
Documents which permit the DIP Lenders to (a) terminate all or any portion of the DIP Facility
and the DIP Commitments, (b) declare the DIP Obligations to be immediately due and payable,
and (c) take any and all actions and exercise any and all rights and remedies permitted under the
DIP Financing Documents which the DIP Lenders may deem appropriate (other than those set
forth in paragraph (b)(ii) of this Section 18); and (ii) upon the occurrence and during the
continuance of a DIP Event of Default and the giving of at least five (5) business days' prior
written notice to the Debtors, the United States Trustee, Comerica, the Trustee, the Collateral
Agent and any Committee, all rights and remedies against the Collateral provided for in the DIP
Documents (including, without limitation, the right to setoff monies of the Debtors in accounts
maintained with the DIP Lenders, if any).
19. Use of Cash Collateral. Subject in all respects to the terms and conditions set
forth herein, the Debtors are authorized to use Cash Collateral in the amounts set forth in the
Original Budget attached hereto as Exhibit A (the "Original Budget"), other than the Excluded
Cash Collateral, through the earliest to occur of (the "Interim Period"): (a) the date of entry of
the Final Order, (b) October 9, 2009, and (c) the occurrence of the Termination Date (as defined
below). Subject to the terms and conditions set forth in this Interim Order, the Debtors are
authorized to use Cash Collateral (other than Excluded Cash Collateral) to: (x) continue
operating while in chapter 11, including purchasing inventory, paying employees and employee
related costs, rent, utilities and other overhead; and (y) fund the professional and other fees
associated with conducting the Sale, negotiating and closing the Sale, closing the Debtors'
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#!1217923v2
offices in France and Taiwan, and converting the Cases to cases under chapter 7 of the
Bankruptcy Code (or otherwise winding down and closing the estates), in each case in
accordance with the Original Budget, as it may be updated from time-to-time.
20. The Original Budget reflects on a line-item thirteen (13) week rolling-basis the
Debtors' anticipated aggregate cash receipts and aggregate necessary and required expenses for
each week covered by the Original Budget. For each week covered by the Original Budget and
any subsequent budget, the aggregate actual disbursements by the Debtors during such week of
determination must be no greater than 115% of the aggregate amount of projected disbursements
for such period as set forth in the Original Budget or any subsequent budget. In addition, during
each four (4) week period covered by the Original Budget or any subsequent budget, aggregate
actual cash receipts collected by the Debtors during such period of determination shall not be
less than 85% of the aggregate amount of projected cash receipts for such period as set forth in
the Original Budget or any subsequent budget. For the avoidance of doubt, for purposes of the
foregoing variance tests, any unused amounts set forth in the Original Budget or any subsequent
budget for any period of determination may be carried forward and used during subsequent
periods. Except as expressly set forth herein, nothing in the Original Budget or this Interim
Order shall be deemed or construed as (x) a finding or admission as to the validity of any claim
relating to a budgeted amount, (y) an agreement or promise by any party in interest to pay any
such budgeted claim, or (z) a waiver ofthe rights of any party in interest to contest any such
claim. Furthermore, nothing in this Interim Order shall authorize the disposition of any assets of
the Debtors or their estates outside the ordinary course of business, nor authorize the use by the
Debtors of any proceeds from any such disposition of assets. The Original Budget may be
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#ll217923v2
amended or modified in writing from time to time only with the prior written consent of the DIP
Lenders and Trustee at the direction of the Noteholders.
21. The Debtors shall provide to the DIP Lenders, Comerica (for so long as the Senior
Loan Obligations remain outstanding) and the Trustee, so as to actually be received within four
(4) business days following the end of each week, (a) an updated rolling 13-week budget, and
(b) weekly line-by-line variance reports for the immediately preceding weekly period and on a
cumulative basis from the Petition Date to the report date, comparing actual cash receipts and
actual cash disbursements to cash receipts and cash disbursements forecasted in the Original
Budget for such period and showing on a line-by-line basis any variance to the corresponding
line-item of the Original Budget together with an explanation for such variance.
22. Adeguate Protection for Prepetition Lien Holders. In this Interim Order, the term
"Replacement Lien" shall mean that, subject to the terms and conditions set forth in this Interim
Order, the Prepetition Lien Holders shall have and are hereby granted (effective upon the date of
this Interim Order and without the necessity of the Debtors or the Prepetition Lien Holders to
execute mortgages, deeds of trust, security agreements, pledge agreements, control agreements,
financing statements or otherwise), valid and perfected, security interests in, and liens upon all
present and after-acquired property of the Debtors of any nature whatsoever, including, without
limitation, all cash contained in any account maintained or controlled by the Debtors, the
proceeds of all causes of action, whether pursuant to applicable federal, state or local law of the
Debtors or their estates and, subject to entry of the Final Order and the terms thereof, the
proceeds of Avoidance Actions in the Cases, in the same priority and to the same extent, priority,
enforceability, unavoidability and validity applicable to Comerica's security interests and liens in
the Prepetition Collateral and the Collateral Agent's security interests and liens in the Prepetition
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#11217923 v2
Collateral; provided, however, the Replacement Liens granted to Comerica shall be senior in all
respects to the DIP Liens granted to the DIP Lenders and the Replacement Liens granted to the
Collateral Agent pursuant to this Interim Order and to the Second Prepetition Liens of the
Collateral Agent, and provided further, that all of the Replacement Liens shall be subject and
subordinate to any Permitted Prior Liens.
23. Any provision of this Interim Order to the contrary notwithstanding, the
Replacement Liens and the Superpriority Claims granted to the Prepetition Lien Holders
pursuant to this Interim Order shall be subject and subordinate to the Carve-Out.
24. The Prepetition Lien Holders are granted the following adequate protection for
any diminution in the value of their respective interests in the Prepetition Collateral from the
Petition Date resulting from (a) the use, sale, lease, disposition, shrinkage, decline in market
value, consumption or physical deterioration of the Prepetition Collateral (including Cash
Collateral) by the Debtors, and (b) the imposition of the automatic stay pursuant to section 362
of the Bankruptcy Code (collectively, the "Adequate Protection Obligations"):
25. The Prepetition Lien Holders shall have and are hereby granted the Replacement
Liens subject to the priorities set forth herein and the Carve-Out. Subject in all respects to the
Intercreditor Agreement and the Consent, and except as otherwise set forth herein, the
Replacement Liens granted to the Prepetition Lien Holders pursuant to this Interim Order shall
be prior and senior to all liens and encumbrances of (a) all other secured creditors in and to such
property granted, or arising, subsequent to the date of this Interim Order (including, without
limitation, liens and security interests, if any, granted in favor of any federal, state, municipal or
other governmental unit, commission, board or court for any liability of the Debtors other than
taxes), (b) any intercompany claim of any Debtor or subsidiary or affiliate of any Debtor, and (c)
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#\1217923v2
any security interest or lien that is avoided or otherwise preserved for the benefit of any Debtor's
estate pursuant to Bankruptcy Code section 551; provided, however, that the Replacement Liens
granted to the Collateral Agent shall be subordinate to the DIP Liens and the Replacement Liens
granted to Comerica.
(a) Subject to the Carve-Out, Comerica and the Collateral Agent are hereby
granted allowed Superpriority Claims; provided, however, that the Superpriority Claims granted
to Comerica shall be senior in all respects to the Supermajority Claims of the DIP Lenders and
the Collateral Agent. Subject to the Carve-Out, no cost or expense of administration under
Bankruptcy Code 105, 503(b) and 507(b) shall be senior to, or pari passu with, any
Superpriority Claims;
(b) As additional adequate protection for Comerica, to the extent that
Comerica determines that the amount of Excluded Cash Collateral it will have on hand on the
date of the closing of the Sale (the "Consummation Date") is insufficient to satisfy in full the
Senior Loan Obligations, Comerica shall deliver written notice of the same, which notice shall
include the amount ofthe deficiency (the "Deficiency Amount"), the calculation thereof and
Comerica' s wire instructions, to the Debtors, with copies to counsel to the DIP Lenders and
Note Parties, at least two (2) days prior to the Consummation Date and, as a condition to the
occurrence of the closing of the Sale, (i) ifthe Noteholders are not the successful purchasers of
the Debtors' assets pursuant to the Sale, the Debtors shall, prior to the Consummation Date, wire
the Deficiency Amount to the Comerica in immediately available US funds, or (ii) if the
Noteholders are the successful purchaser of the Debtors' assets pursuant to the Sale, the
purchaser shall wire the Deficiency Amount to the Comerica in immediately available US funds
on the Consummation Date. The DIP Lenders and Note Parties shall be deemed to consent to the
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#ll2l7923v2
use of proceeds of the DIP Facility and/or Cash Collateral, as the case may be, to fund the
Deficiency Amount; and
(c) As additional adequate protection, the Debtors, without further order of or
application to the Court, are directed and authorized during the Interim Period to pay on a
monthly basis, all reasonable out-of-pocket costs and expenses incurred by Comerica, the
Trustee and the Collateral Agent (including the reasonable fees and expenses of counsel and any
financial or other consultants advising them) that were due as of the Petition Date or arise after
the Petition Date in connection with the Cases or any subsequent cases or proceedings, without
the necessity of filing fee applications. In the event of a draw under or in connection with the
Comerica letters of credit or credit card line, Comerica may deduct amounts from the Excluded
Cash Collateral and apply the same to its own account for reimbursement of any or all of its fees
or expenses incurred under the terms of the Senior Loan Agreement, whether such fees and
expenses were incurred prior to or after the Petition Date, without the necessity of filing fee
applications, seeking relief from the automatic stay or obtaining any other order of the Court or
authorization from any other Entity (as defined in the Bankruptcy Code). Any party seeking
reimbursement under this Section 25 shall provide copies of any invoices or notices sent to the
Debtors for such costs and expenses to counsel for the Committee and the Office ofthe United
States Trustee. Notwithstanding any provision of this Interim Order or the Prepetition Debt
Documents to the contrary, the Prepetition Lien Holders reserve, and this Interim Order is
without prejudice to, their respective rights to, among other things, seek additional adequate
protection (provided that any adequate protection provided hereafter to the Collateral Agent shall
also be provided to Comerica on a senior priority basis), claim payment or reimbursement of
additional interest (including default interest), fees and expenses (including, without limitation,
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#\1217923 v2
professional fees and expenses) or other costs and expenses (including claims related to make
whole or prepayment premiums, if any) set forth in the Prepetition Debt Documents.
Notwithstanding any provision of this Interim Order or the Prepetition Debt Documents to the
contrary, all provisions for payments to Comerica, the Trustee and the Collateral Agent of post-
petition fees and expenses (including, without limitation, professional fees and expenses) in
respect of the Prepetition Obligations shall be without prejudice to the right of any party in
interest with standing to seek a determination from the Court at the Final Hearing as to whether
such parties were entitled to such payments as adequate protection payments pursuant to sections
361 and 363 of the Bankruptcy Code. To the extent that the Court determines in a final and non-
appealable order that such party was not entitled to adequate protection payments under sections
361 and 363 of the Bankruptcy Code, then the amount of such payments shall be recharacterized
and applied as payments of principal, if any, under the Senior Loan Agreement or Indenture, as
the case may be.
26. Anything in this Interim Order to the contrary notwithstanding, the Debtors shall
be prohibited from using Cash Collateral (absent further order of the Bankruptcy Court)
immediately upon receipt of written notice from Comerica (to the extent the Senior Loan
Obligations remain outstanding) or the Trustee to Debtors' counsel and counsel to the
Committee that a Cash Collateral Event of Default has occurred and is continuing. For purposes
of this Interim Order, a "Cash Collateral Event of Default" shall occur with respect to the
Debtors' use of Cash Collateral if (a) the Debtors fail to perform any of their obligations in
accordance with the terms of this Interim Order, including, without limitation, the Debtors'
failure to use Cash Collateral in compliance with the Original Budget or subsequent budgets or
to provide the information or access as required herein, (b) any representation or warranty made
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#\1217923 v2
by the Debtors under this Interim Order or any pleading, certificate, report or financial statement
delivered to the Prepetition Lien Holders proves to have been false or misleading in any material
respect as of the time made or given (including by omission of material information or fact
necessary to make such representation, warranty or statement not misleading), (c) the
appointment of a Chapter 11 trustee or examiner with expanded powers, (d) the Cases are
converted to cases under chapter 7, (e) without the prior written consent ofComerica and the
Collateral Agent, the Debtors shall purport to grant or file a motion seeking to grant a third party
a security interest or lien upon all or part of any property of the Debtors that has a priority which
is senior to, or equal with, any of the Prepetition Liens or Replacement Liens granted hereunder
in all or any of a portion of such property (other than the DIP Liens), or (f) a DIP Event of
Default shall have occurred.
27. Carve-Out. Any provision of this Interim Order to the contrary notwithstanding,
the DIP Liens, Replacement Liens and Superpriority Claims granted hereunder to the DIP
Lenders and/or Prepetition Lien Holders, as the case may be, shall be subject and subordinate to
a carve-out (the "Carve-Out") for (a) allowed reasonable fees and expenses of attorneys and
financial advisors (collectively, the "Professionals") employed by the Debtors and any official
committee(s) of unsecured creditors (the "Committee") formed pursuant to sections 327, 328,
II 02 and II 03 of the Bankruptcy Code and any disbursements of any member of the Committee
accrued before the termination of the DIP Facility and/or the Debtors' use of Cash Collateral
hereunder, (b) following notice of the termination of the DIP Facility and/or Debtors' use of
Cash Collateral, the payment of allowed professional fees and disbursements incurred or accrued
after such notice of termination by the Professionals and any disbursements of any member of
the Committee in an aggregate amount not to exceed $200,000 (in addition to compensation
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#ll217923v2
previously awarded or incurred prior to termination of the Debtors' use of Cash Collateral, but
subject to Court approval), (c) quarterly fees required to be paid pursuant to 28 U.S. C.
1930(a)(6) and any fees payable to the Clerk ofthe Bankruptcy Court, and (d) all reasonable fees
and expenses incurred by a trustee under section 726(b) of the Bankruptcy Code in an amount
not to exceed $50,000; provided, however, the Carve-Out shall not include professional fees and
disbursements incurred in connection with the commencement and prosecution of any adversary
proceeding or contested matter in which any person or entity asserts any claims or causes of
action against any or all of the DIP Lenders or Prepetition Lien Holders or challenges or raises
any defense to the DIP Liens, DIP Lenders, Petition Obligations, Prepetition Liens, Prepetition
Lien Holders, Replacement Liens or the Superpriority Claims; provided, further that nothing
herein shall be construed to impair the ability of any party, including, but not limited to the DIP
Lenders and Prepetition Lien Holders, to object to any fees, expenses, reimbursement or
compensation described in this paragraph 27. As long as the Debtors are entitled to use
borrowings under the DIP Facility or Cash Collateral pursuant to the terms ofthis Interim Order,
the Debtors shall be permitted to pay all reasonable and necessary compensation and
reimbursement of expenses allowed and payable under sections 330 and 331 of the Bankruptcy
Code, as the same may be payable, and the amount so paid shall not reduce the Carve-Out. In
the event of a liquidation of either of both of the Debtors' estates, an amount equal to the Carve-
Out (or a pro rata amount in the event of a liquidation of only one of the Debtors) shall be
reserved from the proceeds of such liquidation, or from cash held in the estates at such time, and
held in a segregated account prior to the making of the distributions.
28. So long as no DIP Event of Default or Cash Collateral Event of Default shall have
occurred and be continuing, the Debtors shall be permitted to pay administrative expenses of the
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#11217923 v2
kind specified in section 503(b) ofthe Bankruptcy Code incurred in the ordinary course of
business of the Debtors, subject to the maximum amounts for such type of expenditures
contained in the provisions of the DIP Credit Documents and Original Budget in the aggregate,
as the same may be due and payable.
29. Proceeds ofSubseguent Financing. Without limiting any of the other provisions
of this Interim Order, if at any time prior to (i) the indefeasible repayment in full in cash of all
DIP Obligations, and (ii) the termination of the DIP Commitments, any Debtor or any trustee
subsequently appointed in the Cases shall obtain credit or incur debt pursuant to section 364(b ),
364( c) or 364( d) of the Bankruptcy Code, then, except as permitted by the DIP Credit
Agreement, all of the proceeds of such credit or debt shall immediately be applied to the
indefeasible payment in full in cash of the DIP Obligations in accordance with the DIP
Documents.
30. Limitation on Charging Expenses Against Collateral. Subject to and effective
only upon entry of the Final Order granting such relief, except to the extent of the Carve-Out, no
expenses of administration of the Cases or any future proceeding that may result therefrom,
including liquidation in bankruptcy or other proceedings under the Bankruptcy Code, shall be
charged against or recovered from the Collateral pursuant to section 506( c) of the Bankruptcy
Code or any similar principle of law, without the prior written consent of the DIP Lenders,
Comerica and the Collateral Agent, as the case may be, and no such consent shall be implied
from any other action, inaction, or acquiescence by the DIP Lenders and/or the Prepetition Lien
Holders.
31. Termination. All (i) DIP Obligations of the Debtors to the DIP Lenders shall be
immediately due and payable in accordance with the terms of the DIP Credit Agreement and
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(ii) authorization to use Cash Collateral shall cease, on the date (the "Termination Date") that is
the earliest to occur of: (a) October 9, 2009; (b) the Consummation Date, (c) the effective date
of a plan of reorganization for any of the Debtors confirmed pursuant to section 1129 of the
Bankruptcy Code, (d) the date that is the Commitment Termination Date (as defined in the DIP
Credit Agreement) and (e) the occurrence of a DIP Event of a Default and/or Cash Collateral
Event of Default.
32. Access to Collateral. The DIP Lenders and the Collateral Agent and their
respective experts and advisors shall be given reasonable access to the Collateral for purposes of
monitoring the business of the Debtors and valuing the Collateral.
33. Information. The Debtors shall provide the DIP Lenders and the Prepetition Lien
Holders with all inspection rights and reports (in addition to those required by this Interim Order)
to the extent required under the Prepetition Debt Documents or as otherwise reasonably
requested by the DIP Lenders and the Prepetition Lien Holders.
34. Reservation of Rights of Prepetition Lien Holders. Except as expressly provided
herein, nothing contained in this Interim Order (including, without limitation, the authorization
of the use of any Cash Collateral) shall impair or modify any rights, claims or defenses available
in law or equity, to the DIP Lenders or Prepetition Lien Holders, including, without limitation,
rights of a party to a swap agreement, securities contract, commodity contract, forward contract
or repurchase agreement with a Debtor to assert rights of setoff or other rights with respect
thereto as permitted by law (or the right of a Debtor to contest such assertion).
35. Perfection of DIP Liens and Replacement Liens.
(a) The automatic stay imposed under section 362(a) of the Bankruptcy Code
is hereby vacated and modified to permit the Debtors to grant the liens and security interests to
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#11217923v2
the DIP Lenders and Prepetition Lien Holders contemplated by the DIP Financing Documents
(with respect to the DIP Lenders) and this Interim Order.
(b) The DIP Liens and Replacement Liens granted pursuant to this Interim
Order shall constitute valid and duly perfected security interests and liens (subject to the
priorities set forth herein and in the Intercreditor Agreement and the Consent), and the DIP
Lenders and the Prepetition Lien Holders shall not be required to file or serve financing
statements, notices of lien or similar instruments which otherwise may be required under federal,
state or local law in any jurisdiction, or take any action, including taking possession, to validate
and perfect such security interests and liens; and the failure by the Debtors to execute any
documentation relating to the DIP Liens or Replacement Liens shall in no way affect the validity,
perfection or priority of such liens. The DIP Lenders and Prepetition Lien Holders are hereby
authorized, but not required, to file or record financing statements, trademark filings, copyright
filings, mortgages, notices of lien or similar instruments in any jurisdiction or take any other
action in order to validate and perfect the liens and security interests granted to them hereunder.
Whether or not the DIP Lenders or Prepetition Lien Holders shall, in their sole discretion, choose
to file such financing statements, trademark filings, copyright filings, mortgages, notices of lien
or similar instruments or otherwise confirm perfection of the liens and security interests granted
to them hereunder, such liens and security interests shall be deemed valid, perfected, allowed,
enforceable, nonavoidable and not subject to challenge, dispute or subordination, at the time and
as of the date of entry of this Interim Order. Upon the request of the DIP Lenders, the Debtors
and the Prepetition Lien Holders, without any further consent of any party, are authorized to
take, execute and deliver such instruments (in each case without representation or warranty of
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any kind) to enable the DIP Lenders to further validate, perfect, preserve and enforce the DIP
Liens.
(c) A certified copy of this Interim Order may be filed with or recorded in
filing or recording offices in addition to or in lieu of such financing statements, mortgages,
notices of lien or similar instruments, and all filing offices are hereby authorized and directed to
accept such certified copy of this Interim Order for filing and recording.
36. Marshalling. In no event shall the DIP Lenders or the Prepetition Lien Holders
be subject to the equitable doctrine of "marshaling" or any similar doctrine with respect to the
Collateral.
37. Section 552(b). The DIP Lenders and Prepetition Lien Holders are entitled to all
of the rights and benefits of section 552(b)(l) of the Bankruptcy Code and the "equities of the
case" exception therein shall not apply.
38. Proofs of Claim. (i) The DIP Lenders and Prepetition Lien Holders shall not be
required to file proofs of claim in the Cases or any successor cases and (ii) the Trustee is hereby
authorized, in its sole discretion, but not required, to file (and amend or supplement, as it sees fit)
aggregate proofs of claim in the Cases or any successor cases on behalf of itself and the other
Note Parties; any order entered by the Court in relation to the establishment of procedures to file
proofs or a bar date in any of the Cases or any successor cases shall so provide.
39. Preservation of Rights Granted Under this Interim Order.
(a) No claim or lien having a priority superior to or pari passu with those
granted by this Interim Order to the DIP Lenders or to the Prepetition Lien Holders, respectively,
shall be granted or allowed while any portion of the DIP Facility (or any refinancing thereof), the
DIP Commitments, the DIP Obligations or the Adequate Protection Obligations remain
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#ll217923v2
outstanding, and the DIP Liens and the Replacement Liens shall not be (i) subject or junior to
any lien or security interest that is avoided and preserved for the benefit of the Debtors' estates
under section 551 of the Bankruptcy Code or (ii) subordinated to or made pari passu with any
other lien or security interest, whether under section 364(d) of the Bankruptcy Code or
otherwise.
(b) To the extent permitted by applicable law, if an order dismissing any of
the Cases under section 1112 of the Bankruptcy Code or otherwise is at any time entered, such
order shall provide (in accordance with sections I 05 and 349 of the Bankruptcy Code), to the
fullest extent permitted by law, that (i) the DIP Liens, Replacement Liens and Superpriority
Claims pursuant to this Interim Order shall continue in full force and effect and shall maintain
their priorities as provided in this Interim Order (and pursuant to the Intercreditor Agreement and
Consent) until all DIP Obligations and Adequate Protection Obligations shall have been paid and
satisfied in full and that such DIP Liens, Replacement Liens and Superpriority Claims, shall,
notwithstanding such dismissal, remain binding on all parties in interest and (ii) this Court shall
retain jurisdiction, notwithstanding such dismissal, for the purposes of enforcing the claims, liens
and security interests referred provided for this Interim Order.
(c) If any or all of the provisions of this Interim Order are hereafter reversed,
modified, vacated or stayed, such reversal, stay, modification or vacation shall not affect (i) the
validity of any DIP Obligations or Adequate Protection Obligations incurred prior to the
effective date of such reversal, stay, modification or vacation or (ii) the validity or enforceability
of any lien or priority authorized or created hereby or pursuant to the DIP Credit Agreement with
respect to any DIP Obligations or with respect to the Adequate Protection Obligations.
Notwithstanding any such reversal, stay, modification or vacation, any use of Cash Collateral, or
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#11217923 v2
DIP Obligations or Adequate Protection Obligations incurred by the Debtors prior to the
effective date of such reversal, stay, modification or vacation shall be governed in all respects by
the original provisions of this Interim Order, and the DIP Lenders and Prepetition Lien Holders
shall be entitled to all the rights, remedies, privileges and benefits granted in section 364( e) of
the Bankruptcy Code, this Interim Order and pursuant to the DIP Documents with respect to all
uses of Cash Collateral, DIP Obligations and Adequate Protection Obligations.
(d) Except as expressly provided in this Interim Order or in the DIP
Documents, the DIP Liens, Replacement Liens, Superpriority Claims and all other rights and
remedies of the DIP Lenders and Prepetition Lien Holders granted by the provisions of this
Interim Order and the DIP Documents, as applicable, shall survive, and shall not be modified,
impaired or discharged by (i) the entry of an order converting any of the Cases to a case under
chapter 7 of the Bankruptcy Code, dismissing any of the Cases, terminating the joint
administration of the Cases or by any other act or omission or (ii) the entry of an order
confirming a plan of reorganization in any of the Cases and, pursuant to section 1141 (d)( 4) ofthe
Bankruptcy Code, the Debtors have waived any discharge as to any remaining DIP Obligations.
The terms and provisions of this Interim Order and the DIP Documents shall continue in these
Cases, in any successor cases if these Cases cease to be jointly administered, or in any
superseding chapter 7 cases under the Bankruptcy Code, and the DIP Liens, Replacement Liens
and Superpriority Claims and all other rights and remedies of the DIP Lenders and Prepetition
Lien Holders granted pursuant to this Interim Order and the DIP Documents, as applicable, shall
continue in full force and effect.
40. Effect of Stipulations on Third Parties. The agreements, stipulations and findings
contained in this Interim Order shall be binding upon all parties in interest, including but not
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1111217923 v2
limited to the Debtors and the Committee, unless (a) (i) a party in interest with standing, other
than the Committee, in the Debtors' Cases has timely filed an adversary proceeding or contested
matter no later than seventy-five (75) days from the date of entry of this Interim Order (unless
such deadline is extended by written consent of Comerica (until the Senior Loan Obligations
have been paid in full and discharged in accordance with the provisions of the Senior Loan
Agreement) and the Trustee or by order of this Court) asserting any claims or causes of action
against the Prepetition Lien Holders, or (ii) the Committee has timely filed an adversary
proceeding or contested matter no later than sixty (60) days from the date of its formation (unless
such deadline is extended by written consent of Comerica (until the Senior Loan Obligations
have been paid in full and discharged in accordance with the provisions of the Senior Loan
Agreement) and the Trustee or by order of this Court) asserting any claims or causes of action
against the Prepetition Lien Holders, and (b) the Court rules (whether prior to or after such
period) in favor of the plaintiff or movant in any such adversary proceeding or contested matter
timely filed within such period. If no such adversary proceeding or contested matter is timely
commenced within the respective periods set forth above, (w) the Prepetition Obligations shall
constitute allowed claims (other than those Senior Loan Obligations that are contingent, if any,
which shall constitute allowed claims upon the date such claims are no longer contingent),
subject to increase in accordance with the provisions of this Interim Order, for all purposes in the
Cases and any subsequent chapter 7 cases, (x) the Prepetition Lien Holders' respective security
interest and liens on the Prepetition Collateral shall be deemed legal, valid, binding, perfected
and otherwise unavoidable, (y) the Prepetition Obligations and the Prepetition Lien Holders'
security interest and liens on the Prepetition Collateral shall not be subject to subordination,
counterclaims, set-off, defense, avoidance or any other or further challenge by any party in
-34-
#112l7923v2
interest seeking to exercise the rights of the Debtors' estates, including, without limitation, any
successor thereto, and (z) as a result of the foregoing, the repayment of any Prepetition
Obligations in accordance with the terms of this Interim Order and the Prepetition Debt
Documents shall constitute an indefeasible payment and shall be final and binding for all
purposes. If any such adversary proceeding or contested matter is timely commenced within the
respective periods set forth above, the agreements, stipulations and findings contained in this
Interim Order shall nonetheless remain binding and preclusive on the Committee and on any
other person or entity, except to the extent that such findings or admissions were expressly
challenged in such adversary proceeding or contested matter. Nothing in this Interim Order
confers on any Entity (as defined in the Bankruptcy Code), other than the Debtors, standing or
authority to pursue any cause of action belonging to the Debtors or their estates, including
without limitation, claims and defenses with respect to the Prepetition Obligations. For purposes
of this paragraph 40, any trustee appointed or elected in the Cases shall, until expiration of the
period for commencing an adversary proceeding or contested matter as described in this
paragraph and thereafter for the duration of any litigation in such an adversary proceeding or
contested matter (whether commenced by such trustee or by any other party in interest on behalf
of the debtors' estates), be deemed to be a party "other than the debtors" and shall not, for
purposes of such litigation, be bound by the acknowledgments, admissions and confirmations of
the debtors in this Interim Order.
41. Except with respect to the matters expressly governed by this Interim Order and
subject to the provisions of the Intercreditor Agreement and the Consent, entry ofthis Interim
Order shall be without prejudice to any and all the rights, remedies, claims and causes of action
which the Prepetition Lien Holders may have against the Debtors or any third parties, and
-35-
#11217923 v2
without prejudice to the rights, if any, ofPrepetition Lien Holders to seek relief from the
automatic stay in effect pursuant to section 362 of the Bankruptcy Code, or any other relief in the
Cases, and without prejudice to the rights of the Debtors or any other party in interest to oppose
any such relief. The provisions of this Interim Order shall be binding upon and inure to the
benefit of the Prepetition Lien Holders, the Debtors, and their respective permitted successors
and assigns, including any trustee or other fiduciary hereatler appointed in the Cases as a legal
representative of the Debtors or the Debtors' estates.
42. Limitation on Use of DIP Facility Proceeds and Cash Collateral. Notwithstanding
anything herein or in any other order by this Court to the contrary, no borrowings, Cash
Collateral, Collateral or the proceeds of the Carve-Out may be used to (a) object, contest or raise
any defense to, the validity, perfection, priority, extent or enforceability of any amount due under
the DIP Documents or the Prepetition Debt Documents, or the liens or claims granted under this
Interim Order, the DIP Documents or the Prepetition Debt Documents, (b) assert claims and
defenses or any other causes of action against the DIP Lenders or the Prepetition Lien Holders or
their respective agents, affiliates, representatives, attorneys or advisors, (c) prevent, hinder or
otherwise delay the DIP Lenders' or Prepetition Lien Holders' assertion, enforcement or
realization on the Collateral in accordance with the DIP Documents, the Prepetition Debt
Documents or this Interim Order, (d) seek to modify any of the rights granted to the DIP Lenders
or the Prepetition Lien Holders hereunder or under the DIP Documents or the Prepetition Debt
Documents, in each of the foregoing cases without such parties' prior written consent or (e) pay
any amount on account of any claims arising prior to the Petition Date or any professional fees
and disbursements incurred in connection with such claims or any of the actions set forth in the
foregoing clauses (a) through (d) unless in each case such payments are (i) approved by an order
-36-
#11217923v2
of this Court and (ii) in accordance with the DIP Credit Agreement and Original Budget or
otherwise approved by the DIP Lenders in their sole discretion.
43. Order Governs. In the event of any inconsistency between the provisions of this
Interim Order and the DIP Documents and/or Prepetition Debt Documents, the provisions of this
Interim Order shall govern and control.
44. Enforceability. This Interim Order shall constitute findings of fact and
conclusions of law and shall take effect and be fully enforceable nunc pro tunc to the Petition
Date immediately upon entry hereof. Notwithstanding Bankruptcy Rules 6004(h), 6006(d),
7062, or 9014 of the Bankruptcy Rules or any other Bankruptcy Rule, or Rule 62(a) of the
Federal Rules of Civil Procedure, this Interim Order shall be immediately effective and
enforceable upon its entity and there shall be no stay of execution or effectiveness of this Interim
Order.
45. Binding Effect; Successors and Assigns. The DIP Documents and the provisions
of this Interim Order, including all findings herein, shall be binding upon all parties in interest in
the Cases, including, without limitation, the DIP Lenders and the Prepetition Lien Holders, any
Committee and the Debtors and their respective successors and assigns (including any estate
representative or any chapter 7 or chapter II trustee hereinafter appointed or elected for the
estate of any of the Debtors) and shall inure to the benefit of the DIP Lenders, the Prepetition
Lien Holders and the Debtors and their respective successors and assigns; provided, however,
that the DIP Lenders and the Prepetition Lien Holders shall have no obligation to permit the use
of Cash Collateral or extend any financing, as the case may be, to any trustee or similar
responsible person appointed for the estates of the Debtors.
-37-
#ll217923v2
46. Retention of Jurisdiction. The Bankruptcy Court shall retain jurisdiction to
enforce the provisions of this Interim Order and the rights of the parties set forth herein, and this
retention of jurisdiction shall survive the confirmation and consummation of any Chapter II plan
for any one or more of the Debtors notwithstanding the terms or provisions of any such Chapter
II plan or order confirming such Chapter II plan or any order dismissing or closing the Cases.
47. Exculpation. Nothing in this Interim Order, the DIP Documents, or any other
documents related to these transactions shall in any way be construed or interpreted to impose or
allow the imposition upon the DIP Lenders or Prepetition Lien Holders any liability for any
claims arising from the prepetition or postpetition activities of the Debtors in the operation of
their business, or in connection with their restructuring efforts.
48. Final Hearing. The Final Hearing to consider entry of the Final Order will be held
at 1 Eastern time. The Debtors shall, on or before II./,
2009, mail copies of a notice of the entry of this Interim Order, together with a copy of this
Interim Order, to the parties having been given notice of the Interim Hearing, to any party which
has filed prior to such date a request for notice with the Bankruptcy Court and to counsel for the
Committee, if any. Such notice shall constitute adequate notice of the Final Hearing, including
without limitation, notice that the Debtors will seek approval at the Final Hearing of a waiver of
rights under section 506( c) of the Bankruptcy Code. The notice of entry of this Interim Order
shall state that any party in interest objecting to the DIP Facility, the DIP Documents or the use
of Cash Collateral on the terms and conditions set forth therein and herein shall file written
objections with the United States Bankruptcy Court Clerk for the District of Delaware no later
than-j'cJy ti 2009 at 4:00p.m., which shall be served so that the same are received on or before
such date and time by: (i) the DIP Lenders, (ii) counsel to the Debtors, (a) Pepper Hamilton LLP,
-38-
#ll217923v2
Hercules Plaza, Suite 5100, 1313 N. Market Street, P.O. Box 1709, Wilmington, Delaware
19899-1709, Attn: David B. Stratton, Esq. and James C. Carignan, Esq., (b) Morrison &
Foerster, LLP, 425 Market Street, San Francisco, California 94105, Attn: G. Larry Engel, Esq.
and (c) Morrison & Foerster, LLP, 1290 Avenue of the Americas, New York, New York 10104,
Attn.: James J. DeCristofaro, Esq.,; (iii) counsel to the Noteholders, Lovells, Attn.: Chris
Donoho, Esq., 590 Madison Avenue, New York, New York 10022; (iv) counsel to Comerica,
Comerica Bank-Legal Dept., M/C 4855, 333 West Santa Clara- 12th Floor, San Jose, CA 95113,
Attn: Thomas R. Shanle, Esq.; (v) counsel to any Official Committee appointed in the Debtors'
cases; and (vi) the Office ofthe United States Trustee for the District of Delaware J. Caleb
Boggs Federal Building, 844 King Street, Room 5209, Wilmington, Delaware 19801, Attn: Jane
M. Leamy, Esq ..
Dated: Julyk-":hoo9
Wilmington, Delaware
1111217923 v2
e;;;lr= /fW df\--
UNITED STATES BANKRUPTCY JUDGE
-39-
Page I of2
Barrist, Joy A.
From: stephen.dorosh1 @wachovia.com
Sent: Monday, July 13, 200911:14AM
To: Barris!, Joy A.
Subject: RE: Synerfac
The company has injected the $500M in sub debt already. We would like to move forward as quickly as possible.
We have extended the line via a short term extension.
Stephen T. Dorosh
V.P. & Commercial Risk Manager
Wachovia Bank, N.A.- PA 5414
2240 Butler Pike
Plymouth Meeting, PA 19462-1424
Phone (610) 397-2565
Fax (61 0) 397-2558
"Barrist, Joy A," <barristJ@pepperlaw.com>
07/13/200911:11 AM
To <stephen.dorosh1 @wachovia.com>
cc
Subject RE: Synerfac
Thanks Stephen. I will be handling this request. What is the timing?
Joy
Joy A. Barrist
Attorney at Law
Pepper Hamilton LLP
Hercules Plaza, Suite 5100
1313 North Market Street
Wilmington, Delaware 19899-1709
302.777.657 4 - Direct Phone
302.397.2705- Direct Fax
barristj@pepperlaw.com
www. pepperlaw. com
From: stephen.doroshl@wachovia.com [mailto:stephen.doroshl@wachovia.com]
Sent: Monday, July 13, 2009 9:56AM
To: Lamb, Chris
Cc: Barrist, Joy A.
Subject: Synerfac
7/13/2009
Page 2 of2
Chris
Please find attached an term sheet outlining the terms of the Synerfac line renewaL Please call with any
questions.
Thanks.
Stephen T. Dorosh
V.P. & Commercial Risk Manager
Wachovia Bank, N.A.- PA 5414
2240 Butler Pike
Plymouth Meeting, PA 19462-1424
Phone (610) 397-2565
Fax (610) 397-2558
This email is for the use of the intended recipient(s) only. If you have received this email in error, please
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ForwardSourceiD:NTOOOAA4CA
7113/2009
Elcctroglas, Inc., ct al.
July 13, 2009 Original Budget
Part I (initial $1 million borrowing only)
7/17 7/24 7/31 an 8114 8/21 8/28
Cash Proection 1,930,102 1,556,291 1,464 276 1,506 648 1,146,004 908,161 452,253
DIP funds 1 000 000
Collections E x l s t l n ~ AR 370 036 134 036 164 676 616 661 264,132 84,132 74,827
Collections est Future sales
- -
101 667 190 000 209 667 368 667
San Jose rent Std 111,047 111,047
Payroll total 64,000 76,000 94,597 94,000 43,000 76,000 65,010
Employee benefits 28,130 34,000 8,300 15,209 28,130 25,000 8,300
Utilities 10,500
- - 25000 10 500 - -
Maint and facilities related 1,150 9,800 1,695 8,000
-
4,950 7,695
Sub total 103,780 230,847 104,592 142 209 81,630 216,997 81,005
other AP Cks not clear Vac
- - - - - - -
Mise exp check run Items Vac 80000 80 000 80 000 80,000 80,000 80,000 80,000
Professional Fees
- - - 150,000
- - -
Committee Prof Fees
- - - - - - -
RIF and wind down cost - 30,000 50,000 - 70,000 - 215,500
Manufae and invento 29,000 168,000 21,000 204,646 572,146 234,646 512,896
subtotal 109,000 278,000 161,000 434,646 722,146 314,646 808,396
Total Disbursements 212 780 608 847 265 592 576,856 803,776 531,643 889,401
Key Assumptions and Notes:
-Assumes Flextronics will sell EG parts as needed for Q1 mfg
-Reflects Electroglas San Jose mfg startup cost of -$3150K
-Reflects $400K from Form Factor lnc.for milestone 3 (end of July)
-Reflects $260K Flextronics Manfg Overhead for August & September
Buys 10ea 4090's from Flextronics@ $441 K during FY10Q1 (June, July, August)
-Potential Flextronics inventory buy@ $7.855M (.251$) in 12 payments
of $164K starting on August 7th week.
-DIP funds of $1,000,000 In July
914 9/11 9118
217,754 283,784 (445,247
67,347 57,347 57,347
374 ODD 393 500 323 833
111,047
80,500 43,000 76,000
9,700 9,639 25,000
- 29,500 -
- 8 000 4,950
90,200 90,139 216,997
- - -
80,000 80,000 80,000
150,000 364,600
-
- 25 000
-
100,000 - -
245,646 392,646 245,646
575,646 862,246 325,646
665,846 952,385 542,643
-The Debtors expect to pay on or about 10/12 $219,000 in fees to the Debtors' professionals, plus $25,000 In fees to the committee (If any) and Its professionals
9/26 10/2 1010
(661,564 (870,410 (1,057,028
-
265,333 276,000 147 167
65,010 80,500 43,000
8,300 9,700 9,639
- - 29,500
7695 - 8,000
81,005 90,200 90,139
- - -
80,000 80,000 80,000
-
150,000
-
- - -
-
-
-
310,646 163,646 163,646
390,646 393,646 243,646
471,651 483,846 333,785
Electroglas, Inc., et al.
July 13, 2009 Original Budget
Part II (initial $1 million borrowing plus second $1 million borrowing)
7/17 7/24 7131 812
Cash Pro'ection 1,930,102 1,555,291 1,464,275 2,505,648
DIP funds 1,000,000 1 000 000
Collections Existin AR 370,036 134,036 164,576 516,561
Collections est Future sales
- -
101,667
San Jose rent Sid 111,047
Payroll total 64,000 76,000 94,597 94,000
Employee benefits 28,130 34,000 8,300 15,209
Utilities 10,500
- -
25,000
Malnt and facilities related 1,150 9,800 1 695 8 000
Sub total 103,780 230,847 104,592 142,209
other AP - Cks not clear v .. - - - -
Mise exp check run items Var 80,000 80,000 80,000 80,000
Debtors Professional Fees
- - -
150,000
Committee Prof Fees
-
-
- -
RIF and wind down cost - 30,000 50,000
-
Manufac and inventory 29,000 168,000 21,000 204,646
subtotal 109,000 278,000 151,000 434,646
Total Disbursements 212,780 508,847 255,592 576,855
Key Assumptions and Notes:
-Assumes Flextronics will sell EG parts as needed for Q1 mfg
- Reflects Electroglas San Jose mfg startup cost of -$350K
-Reflects $40DK from Fonn Factor lnc.for milestone 3 (end of July)
- Reflects $250K Flextronlcs Manfg Overhead for August & September
-Buys 10ea 4090's from Flextronlcs@ $441K during FY10Q1 (June, July, August)
-Potential Flextronics inventory buy@ $7.855M (.251$) in 12 payments
of $164K starting on August 7th week.
DIP funds of $1,000,000 in July
8/14 8121 8128 9/4
2,146,004 1,908,161 1 452,253 1,217,754
254,132 84,132 74,827 57,347
190,000 209,667 358,667 374,000
111,047
43,000 76,000 65,010 80,500
28,130 25,000 8,300 9,700
10,500
- - -
- 4950 7,695 -
81,630 216,997 81,005 90,200
- - - -
80,000 80,000 80,000 80,000
- - -
150,000
- - - -
70,000
-
215,500 100,000
572,146 234,646 512,896 245,646
722,146 314,646 808,396 575,646
803,776 631,643 889,401 665,846
9/11 9/18
716,216 554,753
57,347 57,347
393,500 323,833
111,047
43,000 76,000
9,639 25,000
29,500
-
8,000 4 950
90,139 216,997
- -
80,000 80,000
364,600
-
25,000
-
- -
392,646 245,646
862,246 325,646
952,385 642,643
- The Debtors expect to pay on or about 10/12 $219,000 In fees to the Debtors' professionals, plus $26,000 In fees to the committee (if any} and its professionals
9/26 1012 10/9
338,436 129,590 (57,028
- -
255,333 275,000 147,167
65,010 80,500 43,000
8,300 9,700 9,639
- -
29,500
7,695 - 8000
81,005 90,200 90,139
- - -
80,000 80,000 80,000
-
150,000
-
- - -
- - -
310,646 163,646 163,646
390,646 393,646 243,646
471,651 483,846 333,785