1 FORM 10A.71 INTERIM FACTORING FINANCING ORDER IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF In re: In Proceedings Under Chapter 11 Case No. Debtor. INTERIM ORDER APPROVING SECTION 364 FINANCING AND GRANTING OF LIENS This matter coming on to be heard on the emergency motion (the Motion ) of, a debtor and a debtor-in-possession ( Debtor ) in these proceedings, and a Stipulation (the Stipulation ) among the Debtor and ( Lender ), who in its role as post-petition financer is referred to in this Order as Factor, for the entry of an order (the Order ): A. authorizing Debtor to use cash collateral (as defined in Section 363(a) of Title 11 of the United States Code (the Code ), all of which cash collateral is presently subject to security interests and rights of setoff claimed by Lender that secure the prepetition liabilities, direct and contingent, and indebtedness of Debtor to Lender in the amount of $. B. granting certain replacement, substitute and/or additional liens and other relief for the benefit of Lender with respect to certain cash collateral on deposit or to be deposited in one or more depository accounts maintained under the control of Lender; C. authorizing Debtor to enter into a postpetition factoring agreement with Factor (the Factoring Agreement, an accurate copy of which is annexed hereto as Exhibit A [omitted]), in order to obtain financing from Factor; and D. granting liens and security interests in the property of the estate to secure payment of obligations incurred by Debtor under the factoring arrangements with Factor. The Court has considered and examined the Motion and the Stipulation (and the exhibits attached thereto), the arguments and avowals of counsel, and completed a preliminary hearing as provided for under Section 363 and 364 of the Code and Rule 4001(b)-(c) of the Rules of Bankruptcy Procedure (the Bankruptcy Rules ), and finding adequate notice under the circumstances to have been given, based upon the record in this case, and the Stipulation, the Court hereby finds and concludes as follows: 1 THE COURT HAS BEEN ADVISED THAT THE DEBTOR, Lender, FACTOR, HAVE STIPULATED TO THE FOLLOWING: 1.1. On or about, 20 (the Petition Date ), Debtor filed a Petition for relief under Chapter 11 of the Code (the Petition ). Pursuant to Sections 1107 and 1108 of the Code, Debtor has retained possession of its assets and is authorized thereby, as a debtor-in-possession, to continue the operation and management of its business On or about, 20, Debtor executed and delivered to Lender an Accounts Receivable Security Agreement, on or about, 20, Debtor executed and delivered to Lender a Promissory Note; and, on or about, 20, Debtor executed and delivered to Lender a second Promissory Note (as amended from time to time, collectively the Lender Agreements ). The Lender Agreements were duly 1 The findings and conclusions rendered by the court in this order are incorporated by reference into the decretal paragraphs of this order, as though set forth separately therein.
2 signed by authorized representatives of Debtor. Accurate copies of the Lender Agreements were attached to the Motion as Exhibit B [omitted]. Lender is the current owner and holder of each of the Lender Agreements Pursuant to Lender Agreements, Lender made advances of money to Debtor. The Lender Agreements evidence Obligations 2 of Debtor to Lender, all of which are prepetition obligations (the Lender Obligations ) The Lender Agreements granted to Lender a security interest in all assets of the Debtor existent prior to and as of the Petition Date, including without limitation, all proceeds, products, replacements, substitutes, accessions, additions and improvements thereof and thereto, and all of Debtor s books and records (hereafter, the Lender Collateral ) The Lender Collateral also includes cash collateral as defined by Section 363 of the Code, all deposits subject to setoff and cash arising from the collection or other conversion to cash of property of Debtor in which Lender has a security interest or lien, whether those security interests or liens existed as of the commencement of these proceedings or arise thereafter pursuant to this Order, and whether the property converted to cash existed as of the commencement of these proceedings or arose or was generated thereafter (collectively, the Lender Cash Collateral ) Lender has perfected its security interests in and liens upon the Lender Collateral by, among other things, filing the financing statement described below on the date indicated: Date Filing No. Filing Office Secured Party Debtor An accurate copy of the said financing statement was attached to the Motion as Exhibit C [omitted] As of the Petition Date, no one had a currently filed, non-lapsed financing statement of record against Debtor s assets, other than that of Lender, to indicate the possibility that any security interests or liens might exist in property owned or possessed by Debtor Prior to the filing of the Petition, the proceeds of the business operations of Debtor had been deposited, at Debtor s direction and with the consent of Lender, into a blocked individual cash collateral account at First National Bank (the Cash Collateral Account ) Debtor admits that, except as hereafter noted, Lender s security interests in and liens upon the Lender Collateral have been properly perfected since at least ninety-one (91) days before the Petition Date, and that such security interests and liens are valid, choate, enforceable, non-avoidable and of first priority. Lender s security interest in the vehicles described in Exhibit D [omitted] to the Motion ( Equipment Collateral ) were not perfected prior to the Petition Date As of the Petition Date, Debtor was indebted to Lender with respect to the Lender Obligations in the sum of $ (which includes accrued, costs and professional and other fees) due under the Lender Agreements Cash in the possession of Debtor and in the Cash Collateral Account represents proceeds of collections of Lender Collateral, and constitute Lender Cash Collateral which is subject to Lender s lien and security interests Factor has indicated a willingness to provide factoring financing to Debtor in an amount not to exceed in the aggregate at any time $, subject to the terms and conditions contained herein and in the Factoring Agreement, to replace the financing previously provided by Lender pursuant to the Lender Agreements For purposes of this Order, Default shall mean and include the occurrence of any one or more of the following events: (a) Debtor s failure to deposit all Lender Cash Collateral into the Cash Collateral Account as provided in this Order; (b) The entry of an Order converting either of the Chapter 11 Cases to a Case under Chapter 7 of the Code; (c) Any sale by Debtor of the Collateral outside of the ordinary course of business, and other than on the terms and conditions of this Order or pursuant to the terms and provisions of the Code; 2 The term Obligations as used in this Order is defined in Section 1.12 of the above-referenced Accounts Receivable Security Agreement (the Lender Loan Agreement ).
3 (e) (f) (g) (h) (m) (n) (m) (n) Debtor s failure to pay, when due, any post-petition taxes unless such taxes are the subject of a bona fide dispute; Any warranty or representation made by Debtor to Factor, or any financial statement or other documents heretofore or hereafter delivered to Factor, shall prove false or misleading in any material respect; The occurrence of any other Event of Default as provided in the Lender Agreements, as modified by this Order, subject to cure periods (if any) that exist in the Lender Agreements; Debtor s failure to pay when due all payments to Lender as provided in the Lender Agreements as modified by this Order; Debtor s failure to pay when due all payments to Factor as provided in the Factor Agreements (hereafter defined), as modified by this Order; The automatic stay of 11 USC 362 with respect to any of the Lender Collateral or Lender Cash Collateral is modified or terminated without Lender s written consent; The automatic stay of 11 USC 362 with respect to any of the Factoring Collateral (hereafter defined) is modified or terminated without Lender s written consent; or The Debtor s failure to: (i) confirm a Chapter 11 plan providing for impaired treatment of the Lender Prepetition Obligations with the consent of Lender by, 20 ; or (ii) pay in full the Lender Obligations on or before, 20. THE COURT FINDS AS FOLLOWS: 2.1. Debtor has provided such notice as was practicable under the circumstances and as may be required under Bankruptcy Rule 4001(c) of the hearing held in connection herewith by sending notice of a proposed hearing on the Motion, and a copy of the Motion with exhibits thereto, via overnight courier on, 20, or by hand delivery on, 20, to: (a) Lender, the largest secured creditor; (b) the twenty (20) largest unsecured creditors of Debtor, as set forth on the schedule filed by Debtor pursuant to Bankruptcy Rule 1007(d); (c) all creditors with a record claim of a security interest in or lien upon any of the Lender Collateral; (d) all creditors that have requested notice herein; and (e) the Office of the United States Trustee. Confirmation of such hearing was provided to the same parties either by hand delivery on, 20, telefax or by sending confirmation via overnight courier on, 20. The Court expressly finds that such notice is adequate and sufficient under the circumstances pursuant to Sections 102(1) and 364(c) of the Code and Bankruptcy Rules 2006 and 4001(c) As of the date of this Order, no Official Unsecured Creditors Committee, as provided for under Section 1102 of the Code (the Creditors Committee ), has yet been appointed by the Office of the United States Trustee Debtor has made reasonable efforts, under the circumstances, to locate financing of the type contemplated by this Order, and the Court expressly finds that Debtor is unable to obtain, in the ordinary course of business or otherwise, financing of the type contemplated herein, either in the form of unsecured credit allowable under Section 503(b)(1) of the Code as an administrative expense, unsecured credit allowable under Sections 364(a) and 364(b) of the Code, or secured credit pursuant to Sections 364(c) and 364(d) of the Code, except from Factor on the terms and conditions contained in this Order and the Factoring Agreement. After considering all of the alternatives, Debtor has concluded, in the exercise of its best and reasonable business judgment, that the financing to be provided by Factor under the terms of this Order represents the best financing available to Debtor In order to continue the operation of its business, Debtor must obtain financing by selling accounts to Factor to purchase fuel for its trucks and supplies, and pay wages, salaries, utilities and other direct and necessary operating expenses. Otherwise, the Debtor would be unable to pay its direct and necessary operating expenses, including payroll, payroll expenses, insurance, and rent, and will not be able to purchase required fuel for its trucks and supplies Entry of this Order is necessary to prevent significant and irreparable harm to the estate that would otherwise result if Debtor is prevented from obtaining immediate financing for the payment of, inter alia, wages, salaries, and operating expenses and the purchase of fuel and supplies, until a final hearing can be convened on the Motion. Without limiting the foregoing, the Court specifically finds that the financing authorized by the Order set forth below is necessary to avoid immediate and irreparable harm pending a final hearing on the Motion Factor is willing to provide factoring financing for Debtor by purchasing eligible accounts of the Debtor, but only if the Lender Prepetition Obligations are allowed to be paid in full from the postpetition proceeds of the Lender Collateral, and only upon the terms and conditions and with the protections provided herein, in the Stipulation and in the Factoring Agreement, and is relying on such terms, conditions and protections in agreeing to factor eligible accounts of the Debtor. It is necessary and appropriate that property of the estate secure repayment of such indebtedness as Debtor may incur in connection with such financing.
4 2.7. The terms and conditions of the Factoring Agreement have been negotiated in good faith and at arms-length by all parties involved. Accordingly, the Court expressly finds that any factoring financing for the Debtor pursuant to the Factoring Agreement shall be and have been extended in good faith as that term is used in Section 364(e) of the Code The security interests and liens granted herein to Factor, including the liens granted below in paragraph 3.18 of this Order, do not impair the liens and security interests, if any, of the holder of record of a lien on or security interest in property of Debtor to the extent of the validity of any such security interests or liens. No finding is made in this Order regarding the extent or validity of any such liens or security interests in favor of any such holders of record Good cause has been shown for the entry of this Order. Among other things, entry of this Order will minimize disruption of Debtor as a going concern, will increase the possibilities for its successful reorganization, and is in the best interests of Debtor, its creditors, and its estate The terms of the factoring financing authorized hereby are fair and reasonable under the circumstances, reflect the exercise of prudent business judgment by Debtor consistent with its fiduciary duties, and are supported by fair equivalent value and fair consideration. ACCORDINGLY, IT IS HEREBY ORDERED THAT: 3.1. This Order entered on the Motion is in a core proceeding as defined in 28 USC 157(b)(2)(D), is valid and fully effective upon its entry The provisions of this Order shall be binding upon and inure to the benefit of Lender, Factor, Debtor, and its successors and assigns (including, to the extent expressly provided for herein, any trustee hereinafter appointed as a representative of the estate herein or in any subsequent proceeding under the Code) Debtor shall be and hereby is authorized to obtain factoring financing from Factor on the terms and conditions contained in this Order and the Factoring Agreement The Court approves the Factoring Agreement. Without limiting the generality of the foregoing sentence, the Factoring Agreement is binding on the parties thereto, and the parties are authorized to perform in accordance with the terms of the Factoring Agreement Lender s security interests and liens secure payment of the Lender Obligations, which shall also include all interest, fees, and expenses now or hereafter arising or related thereto, including, without limitation, all expenses of Lender described in the paragraphs that follow Interest shall accrue on the Lender Prepetition Obligations at the interest rate(s) provided for in the Lender Agreements. Nothing in this Order shall in any way restrict the scope of Lender s prepetition liens, security interests, rights of setoff, or claims with respect to the Lender Obligations The automatic stay provisions of Section 362 of the Code are hereby modified and terminated with respect to Lender, to the extent necessary to implement the provisions of this Order and any agreements executed by Debtor pursuant to this Order, thereby permitting Lender, inter alia, (a) to receive collections of Lender Collateral; (b) to file any financing statements or other instruments and documents, if any, evidencing its security interests in and liens on Lender Collateral; (c) to charge any fees and interest accruing under or pursuant to this Order, the Lender Agreements, or any agreements executed by Debtor pursuant to this Order; and (d) to take any or all of the actions permitted by this Order or by the Lender Agreements, or any agreements executed by Debtor pursuant to this Order, in the event of a Default or termination under any of those agreements; provided, however, that Lender shall provide at least five (5) days prior Notice (as defined in paragraph 3.39) of Lender s intent to take any such action described in clause (d) of this paragraph, to: (i) the Debtor; (ii) counsel for Debtor; (iii) counsel, if any, for the Creditors Committee (or in lieu thereof to a designated representative of that Committee, if any); and (iv) to the United States Trustee So long as the Lender Prepetition Obligations remain unpaid, Debtor irrevocably waives any right, without Lender s prior written consent: (a) to grant or impose, or request that the court grant or impose, under Section 364 of the Code or otherwise, liens or security interests on any Lender Cash Collateral deposited in the Cash Collateral Account, whether equal, superior, or subordinate to Lender s liens and security interests on that property; or (b) to seek authority to use Lender Cash Collateral in any manner other than is described in this Order Until such time as there shall have deposited in the Cash Collateral Account since the Petition Date sums equal in the aggregate to the Lender Obligations, Lender and Debtor are authorized and directed to deposit the Lender Cash Collateral and the proceeds of all of the Lender Collateral into the Cash Collateral Account. Debtor shall notify Lender, in writing within twenty-four (24) hours following the receipt thereof, of any cash, checks, securities, documents of title, negotiable instruments, or other cash equivalents received after
5 the Petition Date that have not been deposited in the Cash Collateral Account, and shall immediately deposit the same in the Cash Collateral Account Lender is authorized to collect upon, convert to cash, and enforce checks, drafts, instruments, and other forms of payment now or hereafter coming into its possession that represents Lender Collateral or proceeds of collection of Lender Collateral, and to apply all proceeds of collections of the Lender Collateral and all other Cash Collateral now or hereafter coming into Lender s possession to the Lender Obligations only as provided in this Order Unapplied proceeds or payments of Lender Collateral received as of the Petition Date by Lender through the Cash Collateral Account or otherwise shall be applied to the Lender Obligations, including all accrued and accruing interest, fees and expenses payable (at the rates, and to the extent set forth in the Lender Agreements) with respect to the Lender Obligations as provided in this Order All proceeds of Lender Collateral received in the Cash Collateral Account or otherwise after the Petition Date shall be applied to pay the Lender Obligations, including all accrued and accruing fees, charges, discounts and interest payable in the amounts, at the rates and in the manner set forth in the Factor Agreements At such time as the Lender Obligations are paid in full, Lender shall promptly cause the release of all available Lender Cash Collateral by transferring the Lender Cash Collateral to Debtor s operating account, and Debtor shall thereafter use the Lender Cash Collateral (a) for the purposes permitted hereunder, and (b) subject in all respects to the limitations set forth in this Order As additional protection to Lender (but not necessarily as adequate protection), Debtor shall (a) provide Lender with access to their books and records upon request during normal business hours and shall allow Lender to inspect, review, and photocopy the same upon request; (b) provide to Lender, on each business day, a complete listing and itemization, in detail acceptable to Lender, identifying by category all receipts for the immediately preceding business day; (c) provide to Lender, upon request, all written documents and other information available to Debtor respecting the Lender Collateral; (d) permit Lender or its representatives, appraisers, accountants, and other professionals and experts, upon request, to count, inspect and photograph Lender Collateral, and for such purposes to enter and remain upon any premises occupied by Debtor; and (e) comply in all respects with the provisions of the Lender Agreements, except for the provisions thereof requiring the timing of the payment of money to Lender and except for the financial covenants set forth therein Debtor hereby: (a) releases and discharges Lender and its agents, attorneys, officers, directors, and employees from any and all claims and causes of action arising out of the Lender Agreements or Lender s relationship with Debtor prior to the entry of this Order; (b) waives any and all defenses (including, without limitation, offsets and counterclaims of any nature or kind) to the validity, perfection, enforceability, and nonavoidability (under Section 544, 545, 547 or 548 of the Code or otherwise) of the Lender Obligations and Lender s security interests in and liens on the Lender Collateral; and (c) agrees without further order to the allowance of the Lender Obligations, pursuant to Sections 502 and 506 of the Code, as a fully secured claim in the amount due to Lender according to Lender s books and records as of the Petition Date, which amount, exclusive of accruing interest and fees, shall be $ Debtor shall be and hereby is authorized to obtain factoring financing from Factor on the terms and conditions contained in this Order and the Factoring Agreement. All indebtedness, including interest and fees accruing in connection therewith, incurred from and after the entry of this Order, and from time to time hereafter owing by Debtor-in-Possession to Factor are hereinafter referred to as the Factor Obligations. The Lender Obligations and Factor Obligations shall be referred to herein collectively as the Financing Liabilities All purchases of accounts of Debtor shall be made at Factor s sole and absolute discretion, shall be evidenced by Factor s books and records, and shall be administered as provided in the Factoring Agreement. Factor has no commitment to purchase any accounts, or make any advances or other extensions of credit, and subject to the terms of the Factoring Agreement, may at any time refuse to purchase any accounts whatsoever, or make any advances or extensions of credit, provided, however, that if Factor intends no longer to purchase any accounts or extend any credit, whatsoever, Factor will provide five (5) business days Notice of its intention to refuse to purchase accounts or make advances or extend credit, to: (a) the Debtor; (b) counsel for Debtor; (c) counsel, if any, for the Creditors Committee (or in lieu thereof to a designated representative of that Committee, if any); and (d) to the United States Trustee To secure the Factor Obligations, and subject only to any non-avoidable valid, enforceable, and perfected liens and security interests in Debtor s assets that existed on the Petition Date and that are superior in priority to Factor s security interests in and liens on the Debtor s assets, Factor is hereby granted pursuant to Sections 364(c) and 364(d) of the Code a valid, choate, perfected, and enforceable first-priority security interest in and lien on: (a) the Lender Collateral owned by Debtor prior to and acquired since the Petition Date, including proceeds thereof; and (b) the property and interests in property of the Debtor described in the Factoring
6 Agreement as the Factoring Collateral. Until all Factor Obligations are paid in full, the security interest and lien granted by this paragraph 3.18 shall at all times be senior to the rights of Debtor in these or any subsequent proceedings under the Code To effectuate and evidence the terms and conditions of the factoring financing to be made available to Debtor by Factor pursuant to the terms of this Order, Debtor is hereby authorized and directed to enter into one or more agreements with Factor that are substantially similar in substance to the Factoring Agreement annexed hereto as Exhibit A [omitted] and any other security agreements necessary to grant a security interest in or lien on the Factoring Collateral (all such postpetition agreements with Factor, collectively, together with all other postpetition documents Debtor is authorized to execute in favor of Factor pursuant to this Order, are hereinafter collectively referred to as the Factor Agreements ). The provisions of the Factor Agreements by this reference thereto are incorporated herein as part of this Order and are made fully enforceable against Debtor As a further condition precedent to Factor s providing factoring financing to Debtor, Debtor is authorized and directed to execute and deliver to Factor, and Factor shall receive, in form and substance satisfactory to Factor and Factor s counsel, such other agreements, documents, and instruments from Debtor, or other third parties, as Factor or its counsel may reasonably request in order to effectuate the transactions described in this Order The signature of or any other person(s) designated in writing by them to Factor, appearing on any one or more of the agreements, instruments, documents, or other writings referred to or, in the opinion of Factor, necessary or desirable to implement the terms and purposes of this Order, shall bind Debtor In consideration of the factoring financing made available pursuant hereto, Debtor irrevocably waives any right, without Factor s prior written consent, to: (a) grant or impose, or request that the court grant or impose, under Section 364 of the Code or otherwise, liens or security interests on any property, whether equal, superior, or subordinate to Factor s liens and security interests on that property; or (b) seek authority to use cash collateral (as defined in Section 363 of the Code) of Factor ( Factor Cash Collateral ) The automatic stay provisions of Section 362 of the Code are hereby modified and terminated with respect to Factor, to the extent necessary to implement the provisions of this Order and the Factor Agreements, thereby permitting Factor, inter alia, (a) to receive collections of the Factoring Collateral; (b) to file any financing statements or other instruments and documents evidencing its security interest in and lien on the Factoring Collateral; (c) to charge any fees and interest accruing under the Factor Agreements as provided below in paragraphs 3.27 and 3.29; and (d) to take any or all of the actions permitted by the Factor Agreements in the event of a Default or termination under any of those agreements; provided, however, that Factor will provide five (5) business days prior Notice of its intention to take any such action described in clause (d) of this paragraph, to: (a) the Debtor; (b) counsel for Debtor; (c) counsel, if any, for the Creditors Committee (or in lieu thereof to a designated representative of that Committee, if any); and (d) to the United States Trustee All agreements by Factor to provide factoring financing to Debtor contained in any security agreement, instrument, document, or other writing now or from time to time hereafter executed by Debtor and delivered to Factor may, subject to the terms of the Factor Agreements, be terminated by Factor at any time at Factor s sole and absolute discretion; provided, however, that Factor shall provide five (5) business days Notice of its intention to terminate any of those agreements, to: (a) Debtor; (b) Debtor s counsel; (c) counsel of record for the Creditors Committee, if any (or, in lieu thereof, a designated representative of that committee, if any); and (d) the Office of the United States Trustee Subject only to the notice provisions of the Factor Agreements and this Order, upon a Default, Lender and Factor each shall have the right at any time in its sole discretion to demand immediate payment in full of, as applicable, the Lender Obligations or the Factor Obligations and, in the absence of immediate full payment, to exercise and enforce the rights granted it under the Lender Agreements, the Factor Agreements, this Order, and applicable law as to all or such part of the Lender Collateral and Factoring Collateral as Lender or Factor, as applicable, shall, in its sole discretion, elect. For those purposes, the automatic stay, to the extent that it may apply to the actions of Lender or Factor, is hereby vacated. Lender and Factor shall provide at least five (5) business days Notice of its intention to enforce its rights under this paragraph, to: (a) Debtor; (b) Debtor s counsel of record; (c) counsel of record for the Creditors Committee, if any (or, in lieu thereof, a designated representative of that Committee, if any); and (d) the United States Trustee. Upon expiration of the five (5) day notice period, Debtor shall cooperate with Lender or Factor, as the case may be, in the disposition of the Lender Collateral or the Factoring Collateral, and shall not otherwise interfere with the enforcement of its rights or actively encourage others to do so In addition to the liens granted to Factor in paragraph 3.18, pursuant to Section 364 of the Code, the Factor Obligations shall constitute an administrative expense equivalent in priority to a claim under Section 364(c)(1) of the Code, with priority over all other costs and expenses of administration of the kinds specified in, or ordered pursuant to, Section 105, 326, 328, 330, 331, 503(b), 507(a), 507(b), or 726 of the Code, and
7 shall at all times be senior to the rights of Debtor or any successor trustee in this or any subsequent proceeding under the Code. No costs or expenses of administration that have been or may be incurred in these Chapter 11 cases, any conversion of these cases pursuant to Section 1112 of the Code, or in any other proceedings related hereto, and no priority claims are or will be prior to or on a parity with any claim of Factor against Debtor arising out of the factoring financing made available by Factor to Debtor, or with the security interests and liens of Factor upon the Factoring Collateral. No costs or expenses of administration shall be imposed against Factor, its claims or the Factoring Collateral under Section 506(c) of the Code or otherwise Factor shall be promptly reimbursed by Debtor upon demand, but without further motion to or hearing by this Court, for all costs and expenses (including, without limitation, all filing and recording fees, reasonable attorney and paralegal fees and expenses, and out-of-pocket audit expenses) incurred by Factor in connection with: (a) the preparation of the Motion, this Order, the Factor Agreements, and related instruments, documents, and agreements; (b) the preservation and the protection of Factor s rights hereunder and thereunder; (c) the collection of Factor Obligations; (d) the defense of any claim or action asserted or brought against Factor by any person that arises from or relates to the Lender Agreements, the Factor Agreements, the claims of Factor against Debtor, or any and all matters in connection therewith; (e) the commencement or defense of or intervention in any court proceeding in this matter; (f) the filing of any petition, complaint, answer, motion, or other pleading, or taking of any other action in or with respect to the Factoring Collateral; (g) the protection, collection, lease, sale, taking possession of, or liquidation or other disposition of any of the Factoring Collateral or the interest therein of Factor; (h) any attempt to enforce any lien on or security interest in any of the Factoring Collateral; and (i) the receipt of any advice with respect to any of the foregoing. These costs and expenses shall be added to the Factor Obligations as provided in paragraph Notwithstanding the foregoing provisions of paragraph 3.27, nothing herein shall be construed to limit the right of Debtor or of the Creditors Committee to request the Court, in accordance with Section 506(b) of the Code, to review any costs and expenses reimbursed pursuant to paragraph Discounts, fees, charges and expenses deducted or charged by Lender or Factor in connection with the Lender Agreements and/or the Factor Agreements, as applicable, shall be added to the Lender Obligations or the Factor Obligations, as applicable, with all such items incurred on or before the Petition Date to be added to the Lender Obligations (the payment of such fees being subject to allowance under Section 506(b) of the Code), and all such items incurred after the Petition Date to be charged to the Factor Obligations Debtor hereby irrevocably waives any right to direct the manner of application of any payments to Factor or any other receipts by Factor of proceeds of any of the Factoring Collateral Factor shall not be required to file financing statements, mortgages, or other documents in any jurisdiction or take any other action in order to validate or perfect the security interests and liens granted to it by this Order or by any of the Factor Agreements. If Factor shall, in its sole discretion, choose to file financing statements, mortgages, or other documents or otherwise confirm perfection of such security interests and liens, Factor is authorized to effect such filings and recordations, and all such financing statements, mortgages, or similar documents shall be deemed to have been filed or recorded at the time and on the date of entry of this Order In making decisions to purchase the accounts of Debtor, in administering any aspect of the factoring arrangement, or in taking any other actions reasonably related to the Motion, this Order or the Factor Agreements, Factor: (a) shall have no liability to any third party (including creditors of Debtor), and no such third parties are intended to be or shall be deemed to be third-party beneficiaries of the provisions of this Order or of the Factoring Agreements; and (b) shall not be deemed to be in control of the operations of the Debtor or be acting as a responsible person or owner or operator with respect to operations or management of Debtor (as such terms, or any similar terms, are used in the United States Comprehensive Environmental Response, Compensation and Liability Act, as amended, or in any other Federal or state statute) Notwithstanding any language to the contrary in this Order, all liens and administrative claims of Lender and Factor shall be subject to the following, and only the following, carveouts: (i) all post-petition professional fees and expenses of Debtor s counsel in an amount not to exceed $, before applying any prepetition retainer held by such counsel; (ii) all post-petition professional fees and expenses of counsel for the Official Unsecured Creditors Committee, if any, in an amount not to exceed $, in all instances subject to prior Court approval of such fees and expenses pursuant to interim and final fee procedures approved by the Court; provided, however, that Lender and Factor reserve the right to object to any interim or final fee application filed in the Debtor s Chapter 11 cases Nothing contained in this Order shall be deemed a finding with respect to adequate protection (as that term is described in Section 361 of the Code) of the interest of Lender in the Lender Collateral Any of the requirements of this Order may be waived or modified. Unless the proposed waiver or modification affects a party, its agreement to the waiver or modification shall not be required.