UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

www.flsb.uscourts.gov 

In re: 

 Chapter 11 

MIAMI AIR INTERNATIONAL, INC. Case No. 20-13924-BKC-AJC 

 

 Debtor. 

 

___________________________________/ 

DEBTOR’S EMERGENCY MOTION (I) FOR AUTHORIZATION TO OBTAIN 

POSTPETITION SECURED FINANCING PURSUANT TO 11 U.S.C. §§ 105, 361, 

362, AND 364, (II) TO GRANT ADEQUATE PROTECTION IN CONNECTION 

THEREWITH PURSUANT TO 11 U.S.C. §§ 361 AND 507, AND (III) 

SCHEDULING A FINAL HEARING UNDER BANKRUPTCY RULE 4001

(Emergency Hearing Requested on Thursday March 26, 2020)

Statement of Exigent Circumstances

The Debtor seeks to continue to operate its business in the ordinary course, to 

preserve the value of the estate, to preserve jobs and to maintain operations. 

Without the immediate authorization to obtain financing, the Debtor will not be 

able to meet payroll, tax, insurance and other obligations necessary for its day-today operations. The Debtor respectfully requests that the Court conduct a hearing 

on this Motion within two business days of the Petition Date (as defined herein), 

consistent with Local Rule 9013-1(F), as the Debtor believes that a hearing on 

this Motion is needed no later than Thursday, March 26, 2020 in order 

for it to continue to operate and meet its payroll obligations on Friday, March 27, 

2020. The Debtor respectfully requests that the Court waive the provisions of 

Local Rule 9075-1(B) which requires an affirmative statement that a bona fide 

effort was made in order to resolve the issues raised in the Motion, as the relief 

requested herein is urgent in nature and does not lend itself to advance resolution. 

MIAMI AIR INTERNATIONAL, INC. (the “Debtor”), by and through its proposed 

undersigned counsel, files this emergency motion (the “Motion”) requesting that this Court enter 

an interim order (the “Interim Order”), substantially in the form attached hereto as Exhibit A1, 

                                                            

1

 In the event of any inconsistency between the summary of the terms contained in this Motion and the terms set 

forth in the Interim Order, the terms of the Interim Order shall control. 

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and a final order (the “Final Order,” together with the Interim Order, (collectively, the “DIP 

Financing Orders”) pursuant to Sections 105, 361, 362, 364 and 507(b) of chapter 11 of title 

11 of the United States Code (the “Bankruptcy Code”), Rules 2002, 2014(a), 4001(c), 2016, 6003, 

6004 and 9014 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), the Local 

Rules of this Court (the “Local Rules”) and this Court’s Guidelines for Motions Seeking Authority 

to Use Cash Collateral and Motions Seeking Approval of Postpetition Financing (the 

“Guidelines”): (i) authorizing the Debtor to obtain secured postpetition financing, (ii) granting 

adequate protection in connection therewith, and (iii) scheduling an emergency interim hearing 

and final hearing on the Motion. In support of this Motion, the Debtor relies upon the 

Declaration of Annette M. Eckerle in Support of Chapter 11 Petition and First Day Motions (the 

“First Day Declaration”) filed contemporaneously herewith, and respectfully states as follows: 

I. JURISDICTION AND VENUE

1. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 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. The statutory predicates for the relief sought herein are sections 105(a), 361, 362, 

364, 507(a)(8), 541, 1107(a) and 1108 of the Bankruptcy Code, Rules 2002, 2014(a), 4001(c), 

2016, 6003, 6004 and 9014 of the Bankruptcy Rules and Local Rules 9014-1(F) and (H). 

II. DISCLOSURES UNDER BANKRUPTCY RULES, LOCAL RULES AND 

GUIDELINES

4. Pursuant to Local Rules 9013-1(F) and (H) and the Guidelines, the Debtor submits 

the following summary of the material terms of its proposed secured post-petition financing 

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pursuant to the proposed Interim Order attached hereto and setting forth the location of such 

material terms2 in the Interim Order.

Material Provision Location in

Interim Order

Summary Description

DIP Lender p. 1 TSI Holding Company, a Missouri corporation 

Loan Amount p. 2 Not to exceed $3,500,000.00

Interest Rate p. 2 Prime Rate established by Bank of America, N.A. from time to time plus 1%

(the “Applicable Rate”). From and after an Event of Default, interest shall 

accrue on all outstanding obligations at the Applicable Rate plus 5% (the 

“Default Rate”). 

Liens and Superpriority 

claim 

p. 2, 3, 4, 13 and 

14. 

(i) First priority lien and security interest in all of the Debtor’s pre-petition 

and post-petition tangible and intangible assets not otherwise subject to a 

perfected pre-petition lien or security interest, excluding Avoidance Actions 

and their proceeds, (ii) Junior lien and security interest in all of the Debtor’s 

pre-petition and post-petition tangible and intangible assets that are subject to 

a perfected pre-petition lien or security interest, excluding Avoidance Actions 

and their proceeds, and (iii) Superpriority administrative expense claim. The 

Superpriority administrative expense claim shall be payable from the proceeds of

Avoidance Actions. 

Proposed Use of DIP 

Loan Proceeds 

Budget attached as 

Exhibit to Interim 

Order 

Working capital and general corporate purposes; payment of certain 

administrative costs as set forth in the Budget; payment of insurance on 

Collateral, with disbursements not to exceed the sum of (x) 120% of the 

disbursements projected for such week in the Budget, plus (y) (except for the 

first week) any unused portion of the disbursements projected for any prior 

week in the Budget (but excluding, for avoidance of doubt, any amounts in 

excess of 100% of the projected disbursements for any week). For the Period 

from the Petition Date through the anticipated Final Hearing (April 24, 2020), 

the Debtor seeks to use approximately $2.7 million in proceeds of the DIP 

Loan. The Debtor’s Treasurer, Annette M. Eckerle, prepared the Budget. 

Termination Date p. 10 The Interim Period shall be through April 24, 2020, and subject to termination 

provisions in paragraphs 15 and 16 of the Interim Order. 

                                                            

2

 The following summary contains truncated descriptions of material terms and is qualified in its entirety by the 

actual terms of the proposed Interim Order. Capitalized but undefined terms shall have the meanings given to such 

terms in the Interim Order and/or this Motion, as applicable. 

Case 20-13924-AJC Doc 7 Filed 03/25/20 Page 3 of 41
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Termination 

Provisions 

p. 15, 16 Debtor’s ability to borrow funds shall terminate upon an event of default

including: 

(i) failure to comply with the terms of the Interim Order (including the

Budget); 

(ii) the obtaining of credit or the incurrence of indebtedness that is equal to

or senior to the liens and claims of DIP Lender, or entitled to priority 

administrative status which is equal or senior to that granted to the DIP 

Lender herein; 

 (iv) Termination of DIP Lender’s lien or security interest or assertion by

Debtor that DIP Lender’s lien is not valid or perfected; 

(v) relief from stay granted (a) to allow any creditor to execute upon or

enforce a lien on or security interest in any Collateral, or (b) with respect to

any lien of or the granting of any lien on any Collateral to any state or local

environmental or regulatory agency or authority, which would have a

material adverse effect on the business, operations, property, assets, or

condition, financial or otherwise, of the Debtor; 

(vi) the reversal, vacatur, or modification (without the express prior

written consent of the DIP Lender, in its sole discretion) of the Interim 

Order; 

(vii) dismissal or conversion of the Case, or appointment of a chapter 11 

trustee or examiner; 

(viii) the sale of any portion of the Debtor’s assets outside the ordinary 

course of business without the prior written consent of the DIP Lender, in 

its sole discretion; 

(ix) the Debtor’s failure to obtain entry of a Final Order by April 24, 2020; 

(x) the granting of any motion providing for reconsideration, stay, or 

vacatur of the Interim Order; 

(xi) ( 1 ) the Debtor’s assertion in any pleading filed in any court that any 

material provision of the Interim Order is not valid and binding for any

reason, or (2) any material provision of the Interim Order shall, for any

reason, cease to be valid and binding without the prior written consent of 

the DIP Lender; or 

 (xii) if any of the Debtor’s Equipment (as defined in section 1110(a)(3) of 

the Bankruptcy Code) is surrendered or repossessed without DIP Lender’s 

consent. 

Remedies Notice 

Period 

p. 16, 17 Within 7 business days after a Termination Declaration Date, the Debtor and/or

the Statutory Committee may seek an emergency hearing to determine if an 

Event of Default has occurred. 

Waiver

/modification of stay 

p. 16 - 19 Entry of an order granting relief from stay to allow any creditor to execute

or enforce a lien on Postpetition Collateral is an Event of Default. The 

Interim Order grants the DIP Lender relief from the automatic stay to implement

the financing including by filing a UCC-1 against the Debtor. 

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Limitation on use of 

proceeds 

p. 19, 20 Neither proceeds from DIP Loan nor Carve Out Funds may be used (a) to

pursue (i) any action adverse to interests of DIP Lender; (ii) invalidate, set aside, 

avoid, subordinate DIP Lien or Interim Order; (iii) for monetary, injunctive or 

other affirmative relief against the DIP Lender; (iv) preventing, hindering, 

delaying DIP Lender’s exercise of any right or remedy; (b) for objecting to,

contesting, interfering with DIP Lender’s enforcement or realization upon any 

Collateral once Event of Default occurred; (c) using, selling or disposing of

Collateral without consent of DIP Lender; (d) objecting to or challenging liens 

or interest held by DIP Lender; (e) asserting, commencing, prosecuting any

claim or cause of action, including Chapter 5 claims against the DIP Lender; 

(f) prosecuting an objection or contesting the validity, priority, extent or

enforceability of any other rights or interests of DIP Lender; or (g) for 

preventing, hindering or otherwise delaying the exercise by the DIP Lender of 

any rights and remedies granted under the Interim Order. 

Waiver of right to 

file a plan 

None

 Deadlines for filing a 

plan 

None

Waiver/modification 

of non-bankruptcy 

law re perfection 

p. 16 -19 The DIP Lender will receive an automatically perfected postpetition 

security interests in and liens on the Postpetition Collateral 

Indemnification None

Limitation of rights of 

parties under section 

506(c) 

p. 13, 14 Postpetition Liens, DIP Obligations and Postpetition Collateral shall not be

subject to section 506(c) 

Granting of lien on 

claims/causes of action 

p. 13 The Postpetition Liens shall not encumber the Debtor’s Avoidance Actions or 

their proceeds. 

Carve Out p. 14, 15 DIP Lender’s Postpetition Liens and Super-Priority Claim shall be 

subordinate to: 

(i) the claims of retained professionals of the Debtor in this Case (the 

“Retained Professionals”) up to the amounts set forth in the Budget through the 

date of a Carve-Out Trigger Notice. From and after receipt of a Carve-Out 

Trigger Notice, the Carve-Out shall be capped at $50,000 in the aggregate for

all Retained Professionals plus up to $20,000 for any subsequently appointed 

trustee and any professionals engaged by any successor to the Debtor,

including an trustee or examiner with expanded powers. 

(ii) unpaid fees and expenses of the United States Trustee and the Clerk of the 

Court. 

Binding Effect N/A N/A 

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Interim Order Substantially in the form of the Interim Order attached to the Motion as

Exhibit A. 

III. BACKGROUND

5. On M arch 24, 2020 (the “Petition Date”), the Debtor filed a voluntary petition 

for relief under chapter 11 of title 11 of the United States Code. 

6. The Debtor is operating its business and managing its affairs as a debtor-inpossession pursuant to section 1107(a) and 1108 of the Bankruptcy Code. 

7. For a detailed description of the Debtor and its operations, the Debtor 

respectfully refers the Court and parties in interest to the First Day Declaration. 

IV. POSTPETITION FINANCING 

8. As disclosed in the First Day Declaration, TSI Holding Company, a Missouri 

corporation (in its capacity as the debtor-in-possession lender) (the “DIP Lender”) is the parent 

and sole shareholder of the Debtor. Prior to the Petition Date, the DIP Lender provided credit 

support to the Debtor in the form of unsecured loans. As of the Petition Date, the DIP Lender had 

made advances to the Debtor totaling $6,995,589.26. 

9. Given impact of the COVID-19 pandemic on the global economy, and on the 

aviation industry in particular, the Debtor does not presently have the liquidity needed to sustain 

its business. The DIP Lender is willing to provide post-petition financing to the Debtor upon the 

terms and conditions contained in the Interim Order that accompanies this Motion. Absent the 

financing, the Debtor cannot sustain its operations and preserve going concern value for the benefit 

of all stakeholders. 

10. For the reasons described hereafter, the proposed financing is necessary to 

promote an effective reorganization of the Debtor and its terms are in the best interest of the estate 

and its creditors. 

Case 20-13924-AJC Doc 7 Filed 03/25/20 Page 6 of 41
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11. Through this Motion, the Debtor seeks to obtain senior secured post-petition 

financing from the DIP Lender pursuant to the terms and conditions as set forth in the proposed 

Interim Order and any promissory note and loan and security documents to be executed by the 

Debtor in connection with and consistent with the terms and conditions of such financing 

(collectively, the “DIP Loan Documents”) on the following terms: 

(i) borrow, pursuant to this Interim Order and the DIP Loan Documents, one or 

more interim initial advances in an amount not to exceed $3,500,000, with no 

more than $2,900,000 outstanding at any time during the Interim Period (as 

defined below) and pursuant to the Budget attached hereto as Exhibit B (the 

“DIP Loan”) at an annual interest rate of the prime rate established from time to 

time by Bank of America, plus 1% (currently 4.25%), with no commitment fee, 

exit fee, unused line fee or similar fee to the DIP Lender; 

(ii) grant to the DIP Lender, pursuant to sections 364(c)(2) and 364(c)(3) of the 

Bankruptcy Code and the terms of the DIP Loan Documents, but subject in all 

events to the Carve Out (set forth below), perfected and enforceable liens and 

security interests comprised of (a) a first priority valid, binding, enforceable lien 

and security interest, pursuant to section 364(c)(2) of the Bankruptcy Code, on 

and against all tangible and intangible property of the Debtor, whether owned as 

of the Petition Date or acquired thereafter, and all rights, claims and causes of 

action of the Debtor-Borrower, including commercial tort claims; excluding, 

however, any claims and causes of action available to the Debtor or the estate 

through the exercise of the powers granted under Chapter 5 of the Bankruptcy 

Code (collectively the “Collateral”) that is not otherwise subject of a prior 

Case 20-13924-AJC Doc 7 Filed 03/25/20 Page 7 of 41
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perfected and duly enforceable lien or security interest as of the Petition Date, (b) 

a junior priority valid, binding, enforceable lien and security interest, pursuant to 

section 364(c)(3) of the Bankruptcy Code, on and against the Collateral that is 

otherwise subject of a prior perfected and duly enforceable lien or security interest 

as of the Petition Date, and (c) all proceeds and products of and from the 

Collateral, and all substitutions, renewals, improvements and replacements of any 

of the Collateral; and further including all proceeds and products of any of the 

foregoing Collateral, including without limitation, the proceeds of all insurance 

policies insuring the foregoing Collateral or any part thereof and proceeds of 

said insurance, and including unearned premiums (collectively, the 

“Proceeds”)(the Collateral and the Proceeds are collectively referred to herein as 

“Postpetition Collateral”); 

(iii) incur all of the obligations, liabilities and indebtedness under and in respect of the 

DIP Loan, including principal, interest, attorneys’ fees and expenses, financial 

advisory fees and expenses, and other charges of the DIP Lender (collectively, the 

“DIP Obligations”) and pay all amounts contemplated to be paid thereunder; 

(iv) use the proceeds of the DIP Loan in a manner consistent with the terms and 

conditions of the Interim Order, the DIP Loan Documents and in accordance with 

the Budget, solely for the purposes set forth in the Budget, including for (a) 

working capital and general corporate purposes, (b) payment of certain of the 

costs of administration of the Case, to the extent set forth in the Budget, a n d 

(c) payment of insurance on the Collateral; 

(v) grant to the DIP Lender, pursuant to section 364(c)(1) of the Bankruptcy Code, a 

Case 20-13924-AJC Doc 7 Filed 03/25/20 Page 8 of 41
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super-priority administrative expense claim in respect of all DIP Obligations with 

priority over all administrative expenses, subject only to the Carve-Out; 

(vi) vacate and modify the automatic stay imposed by section 362 of the Bankruptcy 

Code to the extent necessary to implement and effectuate the terms and provisions 

of the Interim Order; and 

(vii) and schedule a final hearing (the “Final Hearing”)3 to consider entry of a final 

order (the “Final Order”) granting the relief requested in the Motion on a final 

basis and approve the form of notice with respect to the Final Hearing. 

V. REQUEST FOR PRELIMINARY HEARING TO CONSIDER GRANTING 

INTERIM ORDER AUTHORIZING DEBTOR TO OBTAIN POSTPETITION 

FINANCING 

12. Pursuant to Bankruptcy Rule 4001(c)(2), a final hearing on a motion to obtain 

post-petition financing may not be commenced earlier than 14 days after service of such motion. 

Upon request, however, the Court is empowered to conduct a preliminary expedited hearing on 

the motion and authorize post-petition financing to the extent “necessary to avoid immediate 

and irreparable harm to the estate pending a final hearing.” Bankruptcy Rule 4001(c)(2). It is 

essential to the continued operation of the Debtor’s business that it be authorized by this Court 

to obtain post-petition financing as set forth in the Interim Order pending the final hearing on the 

Motion. Unless this Motion is approved on an interim basis, the Debtor will be unable to pay its 

employees and other immediate obligations as set forth in the Budget, which would have a 

devastating effect on the Debtor’s operations, customer base and revenues. Thus, funds are 

urgently needed to meet all of the Debtor’s immediate working capital and other liquidity needs. 

                                                            

3 The Debtor is evaluating its financing needs beyond the term of the Interim Order. Not later than three (3) business 

days prior to the date of the Final Hearing, the Debtor shall file an amended budget and a proposed form of Final 

Order disclosing the amount the Debtor seeks to borrow from the DIP Lender on a final basis, which amount may 

exceed the amount of the DIP Loan proposed herein. 

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In the absence of immediate relief, the Debtor’s ability to operate its business in the ordinary 

course will be immediately and irreparably jeopardized. 

13. The Debtor has been informed that the D I P Lender is willing to provide the 

DIP Loan, subject to the conditions set forth in the Interim Order, including, without limitation, 

the provisions of the Interim Order assuring that the security interests and liens pursuant to 

section 364(c) of the Bankruptcy Code and the various claims, superpriority claims, and other 

protections granted pursuant to the Interim Order will not be affected by any subsequent reversal 

or modification of the Interim Order, or by any other order that is applicable to the DIP Loan, as 

provided in section 364(e) of the Bankruptcy Code. 

14. The Debtor submits that the DIP Lender has acted in good faith in consenting to 

and in agreeing to provide the financing, and the reliance of the DIP Lender on the assurances 

referred to above is in good faith. The DIP Lender and the Debtor have negotiated at arms’ length 

and in good faith regarding the DIP Financing to fund the continued operations of the Debtor. 

The DIP Lender will not agree to provide the DIP Loan, absent the approval of the terms and 

conditions set forth in the Interim Order. 

15. Given the impact that the Coronavirus pandemic and the travel restrictions 

imposed by several countries in the world have had on the Debtor’s business operations, as well 

as the uncertainty of the Debtor’s future resulting therefrom and the extreme time constraints 

f a c i n g t h e Debtor, the Debtor’s range of realistic financing alternatives is extremely limited if 

not non-existent. The Debtor submits that the terms and conditions of the DIP Loan, taken as a 

whole, are fair and reasonable under the circumstances, reflect the Debtor’s exercise of prudent 

business judgment consistent with its fiduciary duty; and are supported by reasonably equivalent 

value and fair consideration. 

Case 20-13924-AJC Doc 7 Filed 03/25/20 Page 10 of 41
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16. In view of the foregoing, the Debtor respectfully requests entry of an Interim Order 

in substantially the form attached hereto as Exhibit A, together with such amendments and 

modifications as may be made by Debtor and DIP Lender prior to, at or as a result of the Interim 

Hearing. 

17. Such interim relief is essential to enable the Debtor to fulfill its existing obligations, 

as specifically detailed in the Budget. These sums will be required to pay employees and other 

immediate operating expenses that are the very minimum necessary for the Debtor to continue as 

a going concern for the benefit of all of its creditors, employees and stakeholders. Accordingly, 

the Debtor respectfully requests approval of the Motion, pending a final hearing on the Motion, 

on an emergency interim basis, on the terms and subject to the conditions set forth in the Interim 

Order and Budget, or on such other terms that the Court may deem appropriate. 

VI. BASES FOR THE RELIEF REQUESTED

A. Incurrence of Secured Debt Pursuant to Bankruptcy Code

Section 364 

18. Section 364(c) of the Bankruptcy Code provides as follows: 

(c) If the trustee [or debtor in possession] is unable to obtain 

unsecured credit allowable under § 503(b)(1) of this title as an 

administrative expense, the court, after notice and a hearing, 

may authorize the obtaining of credit or the incurring of debt – 

(1) with priority over any and all administrative expenses of the kind 

specified in § 503(b) or 507(b) of this title; 

(2) secured by a lien on property of the estate that is not otherwise 

subject to a lien; or 

(3) secured by a junior lien on property of the estate that is subject to a 

lien.

11 U.S.C. § 364(c). 

19. Pursuant to section 364 of the Bankruptcy Code, a debtor may, in the exercise of 

Case 20-13924-AJC Doc 7 Filed 03/25/20 Page 11 of 41
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its business judgment, incur secured debt if the debtor has been unable to obtain unsecured credit 

and the borrowing is in the best interests of the estate. See 11 U.S.C. §§ 364(c), (d); In re Nat'l 

Litho, LLC, 2013 WL 2303786 (Bankr. S.D. Fla. 2013) (Isicoff, J.); In re Trigeant Holdings, 

Ltd., 2014 WL 5789926, at*3 (Bankr. S.D. Fla. Oct. 10, 2014); In re Ames Dep’t Stores, 115 B.R. 

34, 38 (Bankr. S.D.N.Y. 1990)(with respect to post-petition credit, courts “permit debtor[s]-inpossession to exercise their basic business judgment consistent with their fiduciary duties”); 3 

COLLIER ON BANKRUPTCY 364.03, at 364-7-18 (15th ed. rev. 2001). 

20. To satisfy the standards of section 364 of the Bankruptcy Code, a debtor is not 

required to seek credit from every possible source: “the statute imposes no duty to seek credit 

from every possible lender before concluding that such credit is unavailable.” Bray v. 

Shenandoah Fed. Sav. & Loan Ass’n (In re Snowshoe Co.), 789 F.2d 1085, 1088 (4th Cir. 1986). 

Rather, a debtor need only demonstrate “by a good faith effort that credit was not available 

without” the protections of section 364(c). Id.; see also In re Ames, 115 B.R. 38, 40 (Bankr. 

S.D.N.Y. 1990). Where there are few lenders likely to be able and willing to extend the 

necessary credit to the debtor, “it would be unrealistic and unnecessary to require [the debtor] to 

conduct an exhaustive search for financing.” In re Sky Valley, Inc., 100 B.R. 107, 113 (Bankr. 

N.D. Ga. 1988). In general, a bankruptcy court should defer to a debtor’s business judgment 

regarding the need for and proposed use of funds unless such judgment is arbitrary and capricious. 

In re Curlew Valley Associates, 14 B.R. 507, 511-14 (Bankr. D. Utah 1981). 

21. There are no prohibitions in the Bankruptcy Code for an insider or an affiliate of 

an insider to make a debtor-in-possession loan. In addition, even though the DIP Lender is 

not seeking a priming lien, there are no requirements other than those set forth in section 364 of 

the Bankruptcy Code for a debtor to obtain a priming debtor-in-possession loan from an insider or 

Case 20-13924-AJC Doc 7 Filed 03/25/20 Page 12 of 41
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an affiliate of an insider. See In re Devlin, 185 B.R. 376 (Bankr. M.D. Fla. 1995)(Court allowed 

a priming debtor- in-possession loan from the debtor’s mother under section 364(d)(1)); In re 

495 Central Park Avenue Corp., 136 B.R. 626 (Bankr. S.D.N.Y 1992)(Court allowed priming 

debtor-in-possession loan from shareholders of the debtor); Bland v. Farmworker Creditors (In 

re Bland), 308 B.R. 109 (S.D. Ga. 2003)(Recognizing that courts can approve priming loans 

from insiders); In re Phase-I Molecular Toxicology, Inc., 285 B.R. 494 (Bankr. D. N.M. 

2002)(Court denied debtor-in- possession loan from an insider because debtor did not satisfy 

the provisions of section 364 of the Bankruptcy Code). 

22. The Debtor has satisfied the requirements of sections 364(c) because, under 

current circumstances, it is unable to obtain credit other than as provided herein. The liens granted 

to the Postpetition Lender shall, except as provided in the Interim Order, be first priority liens 

on all property that is not o t h e r w i s e subject to properly perfected liens on the Petition Date. 

23. Given the current economic and health circumstances facing the world as set forth 

above, the Debtor firmly believes that the financing to be provided as contemplated by the 

Interim Order represents the best — and only — financing available to the Debtor at this 

time, warranting approval of the proposed Interim Order on an emergency basis, pending a 

the Final Hearing. 

24. In the exercise of its business judgment, the Debtor has concluded that the 

DIP Lender is the only lender willing and able to offer a post-petition credit facility that meets 

the Debtor’s working-capital needs on the terms, and within the time frame, required by the 

Debtor. Courts routinely defer to the business judgment of the debtor on most business 

decisions, including borrowing decisions. See, e.g., In re Simasko Prod. Co., 47 B.R. 444, 

449 (D. Colo. 1985) (“business judgments should be left to the board room and not to this 

Case 20-13924-AJC Doc 7 Filed 03/25/20 Page 13 of 41
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Court”); In re Lifeguard Indus., Inc., 37 B.R. 3, 17 (Bankr. S.D. Ohio 1983) (same); In re Curlew 

Valley Assocs., 14 B.R. 506, 511-13 (Bankr. D. Utah 1981) (courts generally will not secondguess a debtor’s business decisions where those decisions constitute “a business judgment made 

in good faith, upon a reasonable basis, and within the scope of its authority under the Code”); 

In re Weaver Oil Co., Inc., 2008 WL 8202063, at *2 (Bkrtcy. N.D. Fla. ,2008) (“Under the

“business judgment rule”, the Bankruptcy Court recognizes that it is “no more equipped to make 

subjective business decisions for insolvent businesses than [the Court is] for solvent businesses,” 

and the formulation of the business judgment rule in corporate litigation is also the appropriate 

formulation of the business judgment rule in the Bankruptcy Court”). “More exacting scrutiny 

would slow the administration of the debtor’s estate and increase its costs, interfere with the 

Bankruptcy Code’s provision for private control of administration of the estate, and threaten the 

court’s ability to control a case impartially.” Richmond Leasing Co. v. Capital Bank, N.A., 762 

F.2d 1303, 1311 (5th Cir. 1985). 

25. More fundamentally, unless the Debtor has access to the DIP Loan, it will not 

have sufficient funds to continue to operate its business and to preserve its assets. Indeed, in the 

absence of such financing, it will not continue as a going concern, resulting in a dramatic decrease 

in the value of the Debtor’s assets and the overall estate. Accordingly, the use of funds provided 

by the DIP Loan to avert an immediate shutdown and liquidation of the Debtor, and to enable the 

Debtor to effect a preservation of the value of the Debtor’s assets is clearly in the best interests 

of the Debtor’s estate. 

26. Based on the circumstances present here, and the grounds and authorities set forth 

above, the Debtor firmly believes that the financing sought is the best financing available, and 

that it is in the best interests of its estate and creditors to enter into the DIP Loan. It respectfully 

Case 20-13924-AJC Doc 7 Filed 03/25/20 Page 14 of 41
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requests authority to do so. 

27. Notice of this motion was served, in compliance with Federal Rule of Bankruptcy 

Procedure 4001(c)(1)(C), upon the Office of the United States Trustee, the Internal Revenue 

Service, and the persons and/or entities identified in the list of 20 largest unsecured creditors of 

the Debtor, as no unsecured creditors’ committee has been appointed. 

28. A proposed Interim Order authorizing the Debtor to obtain postpetition financing 

pending a Final Hearing is attached hereto as Exhibit “ A”. At the Interim Hearing, the Debtor 

will seek entry of an order in substantially the same form as the Interim Order attached hereto. 

WHEREFORE, the Debtor respectfully requests that the Court enter the Interim 

Order in the form attached hereto: (i) authorizing the Debtor on an interim basis as set forth 

herein to obtain secured postpetition financing, and grant liens and superpriority administrative 

expense claims, (ii) setting an emergency interim hearing and thereafter a final hearing; and 

(iii) granting the Debtor such other and further relief as may be proper and just. 

Dated: March 25, 2020 Respectfully Submitted, 

 GENOVESE JOBLOVE & BATTISTA, P.A. 

 Proposed Attorneys for Debtor-in-Possession 

100 Southeast Second Street, Suite 4400 

 Miami, Florida 33131 

 Telephone: (305) 349-2300 

 Facsimile: (305) 349-2310 

 By: /s/ Paul J. Battista 

 Paul J. Battista, Esq. 

Florida Bar No. 884162 

pbattista@gjb-law.com 

Mariaelena Gayo-Guitian, Esq. 

Florida Bar No. 813818 

mguitian@gjb-law.com

Heather L. Harmon 

Florida Bar No. 13192 

hharmon@gjb-law.com

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16

EXHIBIT A 

PROPOSED INTERIM ORDER 

 

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UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

www.flsb.uscourts.gov 

In re: 

 Chapter 11 

MIAMI AIR INTERNATIONAL, INC. Case No. 20-13924-BKC-AJC 

 

 Debtor. 

___________________________________/ 

INTERIM ORDER G R A N T I N G DEBTOR’S EMERGENCY MOTION (I) FOR 

AUTHORIZATION TO OBTAIN POSTPETITION SECURED FINANCING 

PURSUANT TO 11 U.S.C. §§ 105, 361, 362, AND 364, (II) TO GRANT ADEQUATE 

PROTECTION IN CONNECTION THEREWITH PURSUANT TO 11 U.S.C. §§ 

361 AND 507, AND (III) SCHEDULING A FINAL HEARING UNDER 

BANKRUPTCY RULE 4001

 THIS MATTER came for hearing on March___, 2020 at a.m./p.m. (the “Interim 

Hearing”) upon the Emergency Motion of Miami Air International, Inc. (the “Debtor”) in the 

above captioned chapter 11 case seeking entry of an interim order (this “Interim Order”) and a 

Final Order (as defined below) authorizing, inter alia, the Debtor to: 

(i) obtain secured post-petition financing from TSI Holding Co., a Missouri 

corporation (in its capacity as the debtor-in-possession lender, (the “DIP 

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Lender”))1 pursuant to the terms and conditions of this Interim Order and any 

promissory note and loan and security documents to be executed by the Debtor in 

connection with and consistent with the terms and conditions of such financing 

(collectively, the “DIP Loan Documents”). 

(ii) borrow pursuant to this Interim Order and the DIP Loan Documents, one or more 

interim initial advances in an amount not to exceed $3,500,000.00 outstanding at 

any time, with a maximum of $2,900,000 during the Interim Period (as defined 

below) and pursuant to the Budget attached hereto as Exhibit “A” (the “DIP Loan”) 

at an annual interest rate equal to the Prime Rate established by Bank of America, 

N.A. from time to time (currently 3.25%) plus 1%2 (the “Applicable Rate”), with no 

commitment fee, exit fee, unused line fee or similar fee to the DIP Lender; 

(iii) grant to the DIP Lender, pursuant to sections 364(c)(2) and 364(c)(3) of the 

Bankruptcy Code and the terms of the DIP Loan Documents, but subject in all 

events to the Carve Out (set forth below), perfected and enforceable liens and 

security interests comprised of (a) a first priority valid, binding, enforceable priority 

lien and security interest, pursuant to section 364(c)(2) of the Bankruptcy Code, on 

and against on and against all tangible and intangible property of the Debtor 

wherever located, including, without limitation the following: 

A. All equipment of every type now owned or hereafter acquired by Debtor, 

wherever located, including without limitation all machinery, furniture, fixtures, 

parts, leasehold equipment, fittings, accessories and special tools affixed thereto or 

used in connection therewith; 

B. All rights to the payment of money now owned or hereafter acquired by 

Debtor, whether due or to become due and whether or not earned by performance, 

                                                            

1

 The Debtor has disclosed and the Court notes that the Debtor is a wholly-owned subsidiary of the DIP Lender. 2

 From and after an Event of Default, interest shall accrue at the Applicable Rate plus 5%. 

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including but not limited to those rights relating to, evidenced by or constituting 

accounts, general intangibles, chattel paper, instruments, contract rights, notes, 

drafts, acceptances, letters of credit and certificates of deposit, together with any 

interest accrued or to accrue thereon, any security held therefor, any guaranties 

thereof and all records and credit information pertaining thereto; 

C. All documents now owned or hereafter acquired by Debtor, whether 

negotiable or non-negotiable, including without limitation all warehouse receipts, 

receipts in the nature of warehouse receipts, and bills of lading; 

D. All trademarks, trade names, copyrights, intellectual property and all other 

personal property of Debtor; 

E. All monies, bank accounts, balances, credits, deposits, collections, drafts, 

bills, notes and other assets property of every kind (whether tangible or intangible) 

now owned or hereafter acquired by Debtor; and 

F. All claims and causes of action of the Debtor or the estate, including 

commercial tort claims and the Debtor’s rights under Section 506(c) of the 

Bankruptcy Code; excluding, however, claims and causes of action available to the 

Debtor or the estate through the exercise of the power granted pursuant to Chapter 

5 of the Bankruptcy Code (“Avoidance Actions”) and their proceeds, 

whether owned as of the Petition Date or acquired thereafter (collectively the 

“Collateral”) that is not otherwise subject of a prior perfected and duly enforceable 

lien or security interest as of the Petition Date, (b) a junior priority valid, binding, 

enforceable lien and security interest, pursuant to section 364(c)(3) of the 

Bankruptcy Code, on and against the Collateral that is otherwise subject of a prior 

perfected and duly enforceable lien or security interest as of the Petition Date, and 

(c) all proceeds and products of and from the Collateral, and all substitutions, 

renewals, improvements and replacements of any of the Collateral; and further 

including all proceeds and products of any of the foregoing Collateral, including 

without limitation, all insurance policies insuring the foregoing Collateral or 

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any part thereof and proceeds of said insurance, and including unearned premiums 

(collectively, the “Proceeds”)(the Collateral and the Proceeds are collectively 

referred to herein as “Post-petition Collateral”); 

(iv) incur all of the obligations, liabilities and indebtedness under and in respect of 

the DIP Loan, including attorneys’ fees and expenses and financial advisory fees 

and expenses of the DIP Lender (collectively, the “DIP Obligations”) and pay all 

amounts contemplated to be paid thereunder; 

(v) use the proceeds of the DIP Loan in a manner consistent with the terms and 

conditions of this Interim Order, the DIP Loan Documents and in accordance with 

the Budget, solely for the purposes set forth in the Budget, including for (a) working 

capital and general corporate purposes, (b) payment of certain of the costs of 

administration of the Case, to the extent set forth in the Budget, (c) payment of 

interest, fees and costs to the DIP Lender under this Interim Order, and d) payment 

of insurance on the Postpetition Collateral; 

(vi) grant to the DIP Lender, pursuant to section 364(c)(1) of the Bankruptcy Code, a 

super-priority administrative expense claim in respect of all DIP Obligations with 

priority over all administrative expenses, subject only to the Carve-Out (as 

defined below) and the other terms and conditions contained herein; 

(vii) vacate and modify the automatic stay imposed by section 362 of the Bankruptcy 

Code to the extent necessary to implement and effectuate the terms and 

provisions of this Interim Order; and schedule a final hearing (the “Final Hearing”) 

to consider entry of a final order (the “Final Order”) granting the relief requested 

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in the Motion on a final basis and approve the form of notice with respect to the 

Final Hearing. 

The Court, having considered the Motion, the Declaration of Annette M. Eckerle in 

Support of Chapter 11 Petition and First Day Motions [ECF No. ___] (the “First Day 

Declaration”) which was filed contemporaneously with the Motion, and the evidence submitted, 

adduced or proffered at the Interim Hearing, the notice of the Interim Hearing having been given 

in accordance with Bankruptcy Rules 2002, 4001(c) and 9014, and all objections, if any, to the 

interim relief requested in the Motion having been withdrawn, resolved or overruled by the 

Court, and it appearing to the Court that granting the interim relief and entering this Interim 

Order is necessary to avoid immediate and irreparable harm to the Debtor, its creditors and its 

estate pending the Final Hearing, and otherwise is fair and reasonable and in the best interests of 

the Debtor, its estate and its creditors, and equity holders, and is essential for the continued 

operation of the Debtor’s business; and after due deliberation and consideration, and for good 

and sufficient cause appearing therefor; 

BASED UPON THE RECORD ESTABLISHED AT THE INTERIM HEARING, THE 

COURT HEREBY MAKES THE FOLLOWING FINDINGS OF FACT AND 

CONCLUSIONS OF LAW:

A. Petition Date. On March 24, 2020 (the “Petition Date”), the Debtor commenced 

this case (the “Case”) by filing a voluntary petition for relief under chapter 11 of the United 

States Bankruptcy Code, 11 U.S.C. §§ 101, et seq. (as amended, the “Bankruptcy Code”) in the 

United States Bankruptcy Court for the Southern District of Florida (the “Court”). The Debtor 

is continuing in the management and operation of its business and properties as a debtor-inpossession pursuant to sections 1107 and 1108 of the Bankruptcy Code. 

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B. Jurisdiction and Venue. This Court has jurisdiction over the Case pursuant to 28 

U.S.C. §§ 157 and 1334 and over the persons and property affected hereby. Consideration of the 

Motion constitutes a core proceeding under 28 U.S.C. § 157(b)(2). Venue of the Debtor’s Case 

is proper in this Court under 28 U.S.C. §§ 1408 and 1409. 

C. No Committee Formation. No official committee of unsecured creditors has 

been appointed in the Case. 

D. Notice. Notice of the Interim Hearing and the emergency relief requested in the 

Motion has been provided by the Debtor, whether by facsimile, e-mail, overnight courier or 

hand delivery, to certain parties in interest, including: (i) the U.S. Trustee; (ii) Internal Revenue 

Service; (iii) the parties included on the Debtor’s list of the twenty (20) largest unsecured 

creditors; (iv) counsel to the DIP Lender, (v) any known secured creditors of record; (vi) any 

known parties asserting liens against the Debtor’s assets; and (vii) any parties required to be 

served under any applicable Bankruptcy Rule or Local Rules. The Debtor has made reasonable 

efforts to afford the best notice possible under the circumstances and such notice is good and 

sufficient to permit the granting of the interim relief set forth in this Interim Order, and no other 

or further notice is or shall be required. 

E. Debtor’s Acknowledgements and Agreements. After consultation with its 

attorneys and financial advisors, the Debtor admits, stipulates, acknowledges and agrees that: 

(i) Until such time as all DIP Obligations are indefeasibly paid in full in 

cash (or otherwise satisfied according to such terms as may be mutually 

agreed among the Debtor and the DIP Lender), the Debtor shall not in any 

way prime or seek to prime the Post-petition Liens (as defined below) 

provided to the DIP Lender under this Interim Order by offering a 

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subsequent lender or a party-in-interest a superior or pari passu lien or 

claim on the Post-petition Collateral (as defined below) or a claim pursuant 

to section 364(d) of the Bankruptcy Code or otherwise. 

(ii) Without the prior express written approval of the DIP Lender, the Debtor 

shall not (i) file with the Bankruptcy Court any pleading or request to (A) 

limit, alter, modify, or terminate any provision of this Interim Order, or 

any protection granted to DIP Lender hereunder, or (B) extinguish, 

subordinate or diminish any security interest, lien or claim of the DIP 

Lender, or (ii) seek, consent to, or join in the approval of any matter or 

any plan of reorganization which purports to do any of the things 

prohibited by this Interim Order. 

F. Findings Regarding the Post-Petition Financing. The ability of the Debtor to 

finance its operations requires the use of the proceeds of the DIP Loan, absent which immediate 

and irreparable harm will result to the Debtor, its estate and creditors. In the absence of the DIP 

Loan, the continued operation of the Debtor’s business would not be possible and immediate and 

irreparable harm to the Debtor, its estate and creditors would occur. The Debtor does not have 

sufficient available sources of working capital and financing to operate its business in the 

ordinary course of business or to maintain its property without the DIP Loan. The relief 

requested in the Motion is therefore necessary, essential, and appropriate for the continued 

operation of the Debtor’s business and the management and preservation of its property. The DIP 

Lender and the Debtor have negotiated at arms’ length and in good faith regarding the DIP Loan 

to fund the continued operation of the Debtor’s business during the interim period covered by 

this Order. As a result, the Debtor has requested immediate entry of this Interim Order 

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pursuant to Bankruptcy Rule 4001(c)(2). Good and sufficient cause has been shown for the 

entry of this Interim Order. Among other things, the entry of this Interim Order is in the best 

interests of the Debtor, its creditors and its estate because it will enable the Debtor to (i) continue 

the orderly operation of its business and avoid an immediate shutdown of operations; (ii) meet its 

obligations for payroll, necessary ordinary course expenditures, and other operating expenses; 

(iii) pay necessary fees and expenses under the Bankruptcy Code and make payments authorized 

under other Orders entered by this Court; all in accordance with the Budget (as defined herein); 

(iv) obtain needed goods and services; and (v) retain customer, supplier and employee confidence 

by demonstrating that they have the financial ability to maintain normal operations; thereby 

avoiding immediate and irreparable harm to the Debtor’s estate.

G. No Credit Available on More Favorable Terms. The Debtor has been unable to 

obtain unsecured credit allowable under section 503(b)(1) of the Bankruptcy Code as an 

administrative expense. The Debtor has also been unable to obtain secured credit, allowable only 

under sections 364(c)(2), 364(c)(3), and 364(d) of the Bankruptcy Code on more favorable terms 

and conditions than those provided in the DIP Loan Documents and this Interim Order. The 

Debtor is unable to obtain credit for borrowed money without granting to the DIP Lender the DIP 

Protections (as defined below). 

H. Use of Proceeds of the DIP Loan. Proceeds of the DIP Loan shall be used, in 

each case in a manner consistent with the terms and conditions of the DIP Loan Documents, and 

in strict compliance with the Budget solely for the purposes (i) set forth in the Budget, 

including among other things, for (a) working capital and general corporate purposes, including 

the payroll and overhead associated with operating the Debtor’s business, (b) payment of certain 

of the costs of administration of the Case, to the extent set forth in the Budget, (d) payment of 

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interest, fees and costs to the DIP Lender under the DIP Loan Documents, and (e) payment of 

the maintenance of and insurance on the Postpetition Collateral. 

I. Payment of Post-Petition Principal, Interest and Expenses. The Debtor is 

authorized to pay, and the DIP Lender is entitled to receive the costs and expenses of the DIP 

Lender in connection with the Case and in accordance herewith. The DIP Loan shall mature and 

become due and payable on the earlier of (1) the occurrence of an Event of Default, or (2) April 

24, 2020 (the “Maturity Date”), subject to extension pursuant to the terms of a Final Order. On 

the Maturity Date, all the DIP Obligations shall become due and payable in full, in cash, to the 

DIP Lender. 

J. Extension of Financing. The DIP Lender has indicated a willingness to provide 

interim financing to the Debtor in accordance with this Interim Order and the DIP Loan 

Documents and subject to (i) the entry of this Interim Order, and (ii) findings by the Court that 

such financing is essential to the Debtor’s estate, that the DIP Lender is a good faith lender, and 

that the DIP Lender’s claims, super priority claims, senior security interests and liens and 

other protections granted pursuant to this Interim Order and the DIP Loan will not be affected 

by any subsequent reversal, modification, vacatur or amendment of this Interim Order, the Final 

Order or any other order, as provided in section 364(e) of the Bankruptcy Code. 

K. Business Judgment and Good Faith Pursuant to Section 364(e). (i) The terms 

and conditions of the DIP Loan and the DIP Loan Documents, and the fees and costs to be paid 

thereunder, are fair, reasonable, and the best available under the circumstances, reflect the 

Debtor’s exercise of prudent business judgment consistent with its fiduciary duties, and are 

supported by reasonably equivalent value and consideration; (ii) the DIP Loan and this Interim 

Order were negotiated in good faith and at arms’ length between the Debtor and the DIP Lender; 

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and (iii) use of the proceeds to be extended under the DIP Loan will be so extended in good 

faith, and for valid business purposes and uses, as a consequence of which the DIP Lender is 

entitled to the full protection and benefits of section 364(e) of the Bankruptcy Code. 

L. Entry of Interim Order. For the reasons stated above, the Debtor has 

requested immediate entry of this Interim Order pursuant to Bankruptcy Rule 4001(c)(2). 

NOW, THEREFORE, on the Motion of the Debtor and the record before this Court 

with respect to the Motion, and with the consent of the Debtor and the DIP Lender to the form 

and entry of this Interim Order, and good and sufficient cause appearing therefor, 

IT IS ORDERED that: 

1. The Motion is granted in accordance with and limited to the terms and conditions 

set forth in this Interim Order and the DIP Loan Documents. 

2. All objections to the Motion as it relates to the interim relief sought therein and to 

the entry of this Interim Order have been resolved by the provisions hereof or are overruled. 

3. Notwithstanding any provision of the Bankruptcy Code or the Bankruptcy Rules 

to the contrary, this Interim Order shall take effect immediately upon entry and shall remain in 

effect until 11:59 p.m. (Prevailing Eastern Time) on April 24, 2020 (such period being referred 

to as the "Interim Period”), subject to being extended pursuant to the terms of a Final Order. 

4. The Debtor, the DIP Lender, and their respective advisors and employees have 

acted in good faith in negotiating, consenting, and agreeing to the DIP Loan as contemplated and 

provided by this Interim Order. The negotiation of the terms and provisions of this Interim Order 

has been conducted at arms’ length, and such terms and provisions are fair and reasonable under 

the circumstances and reflect the Debtor’s exercise of reasonable business judgment consistent 

with the Debtor’s fiduciary duties. 

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5. Nothing in this Interim Order shall in any way be construed or interpreted to 

impose or allow the imposition upon the DIP Lender or its advisors or employees, any 

liability for any claims arising from the prepetition or post-petition activities of the Debtor in 

the operation of its business, or in connection with its restructuring efforts. 

6. Based on the findings set forth in this Interim Order and the reliance of the 

DIP Lender in good faith on the terms thereof, if any of the provisions of this Interim Order are 

hereafter modified, vacated or stayed by an Order of this Court or another court, such stay, 

modification or vacation shall not affect the validity and enforceability of any lien, security 

interest or priority authorized for the benefit of the DIP Lender hereunder that is granted or 

attaches prior to the effective date of such stay, modification or vacation, and any use of DIP 

Loan by the Debtor pursuant to this Interim Order prior to the effective date of such modification, 

stay or vacation shall be governed in all respects by the original provisions of this Interim Order. 

7. This Interim Order is without prejudice to the rights of the DIP Lender to seek a 

modification of this Interim Order, including a request for additional adequate protection or the 

termination of the DIP Loan, after notice and hearing, including a hearing noticed on an 

emergency basis. The DIP Lender has expressly reserved, and this Interim Order is without 

prejudice to, any and all rights and remedies of the DIP Lender, including the appropriateness 

of any adequate protection that may be proposed in connection with the DIP Loan after the 

Interim Period. 

8. The DIP Lender shall receive such protections and be entitled to such rights as are 

set forth in this Interim Order. The Debtor and all other relevant parties are expressly and 

immediately authorized, empowered and directed (i) to execute and deliver to DIP Lender the 

DIP Loan Documents in a form consistent with the terms of this Interim Order, (ii) to 

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consummate the transactions described herein and therein and incur and perform on an interim 

basis the DIP Obligations in accordance with, and subject to, the terms of this Interim Order and 

the DIP Loan Documents, and (iii) to execute and deliver all instruments and documents which 

reasonably may be required or necessary for the performance by the Debtor under the DIP Loan 

and the creation and perfection of the Post-petition Liens described in and provided for by this 

Interim Order and the DIP Loan Documents. The Debtor is hereby authorized to perform all 

acts, and subject to the provisions of this Interim Order, pay the principal, interest, fees, expenses 

and other amounts described in this Interim Order and the DIP Loan Documents as such become 

due, including, without limitation, attorneys’ fees and disbursements pursuant to the terms hereof. 

9. In order to enable it to continue to operate its business during the Interim 

Period, subject to the terms and conditions of this Interim Order, the DIP Loan Documents and 

the Budget (which Budget may not be materially amended or modified during the Interim 

Period), the Debtor is hereby authorized under the DIP Loan to borrow up to the amounts set 

forth in the Budget during the Interim Period. Notwithstanding any provision of its certificate or 

articles of incorporation, bylaws, operating agreement, partnership agreement, membership 

agreement, certificate of formation, certificate of limited partnership, regulations, or comparable 

governing documents to the contrary, the Debtor is authorized to, and each officer, member, 

manager, partner, or other comparable authorized signatory of the Debtor is hereby authorized 

to pledge, mortgage and grant security interests in its assets to secure such DIP Obligations, and 

to execute and enter into any and all of the DIP Loan Documents and all other documents and 

transactions necessary to implement and effectuate the terms of the DIP Loan, this Interim Order 

and the DIP Loan Documents. 

10. The proceeds of the DIP Loan (net of any amounts used to pay fees, costs and 

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expenses under this Interim Order or the DIP Loan Documents) shall be used, in each case in a 

manner consistent with the terms and conditions of this Interim Order and the DIP Loan 

Documents, and in accordance with the Budget limited pursuant to this Interim Order to the 

Interim Period. 

11. Effective immediately upon the entry of the Interim Order, the DIP Lender is 

hereby granted, pursuant to subsections 364(c)(2) and (c)(3) of the Bankruptcy Code, perfected 

and enforceable liens and security interests (collectively, the “Postpetition Liens”) comprised 

of (a) a first priority valid, binding, enforceable priority lien and security interest, pursuant to 

section 364(c)(2) of the Bankruptcy Code, on and against the Post-petition Collateral that is not 

otherwise subject of a prior perfected and duly enforceable lien or security interest as of the 

Petition Date, and (b) a junior priority valid, binding, enforceable lien and security interest, 

pursuant to section 364(c)(3) of the Bankruptcy Code, on and against the Post-petition Collateral 

that is otherwise subject of a prior perfected and duly enforceable lien or security interest as of 

the Petition Date; provided, however, that the Post-petition Liens shall not encumber the 

Debtor’s avoidance claims or causes of action arising under chapter 5 of the Bankruptcy Code 

and the proceeds thereof (the “Avoidance Actions”). Notwithstanding anything herein to the 

contrary, the Post-petition Liens shall at all times be subject to the Carve Out. 

12. Except as set forth in this Interim Order and the Carve Out, the Post-petition 

Liens granted pursuant to this Interim Order shall be senior in priority and shall not be made 

subject to, or pari passu with any prepetition lien or security interest by any court order 

heretofore or hereafter entered in the Case and shall be valid and enforceable against any trustee 

or examiner appointed in the Case, upon the conversion of the Case to a case under Chapter 7 of 

the Bankruptcy Code or in any other proceedings related to any of the foregoing (any “Successor 

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Case”), and/or upon the dismissal of the Case; provided, however, that this provision shall not 

apply to any bankruptcy case filed by the Debtor in the future after the closing of this Case. 

The Post-petition Liens shall not be subject to sections 506(c), 510, 549, 550 or 551 of the 

Bankruptcy Code or challenge on any basis. 

13. Except with respect to the Carve-Out during the Interim Period pending the entry 

of a Final Order, all DIP Obligations shall be an allowed super priority administrative expense 

claim (the “DIP Super Priority Claim” and, together with the Post-petition Liens, the “DIP 

Protections”) with priority in the Case under sections 364(c)(1), 503(b) and 507(b) of the 

Bankruptcy Code and otherwise over all administrative expense claims and unsecured claims 

against the Debtor and its estate, now existing or hereafter arising, of any kind or nature 

whatsoever including, without limitation, administrative expenses of the kinds specified in, 

arising, or ordered pursuant to sections 105, 326, 328, 330, 331, 503(a), 503(b), 506(c), 507(a), 

507(b), 546(c), 546(d), 726(b), 1113 and 1114 of the Bankruptcy Code; provided, however, that 

the proceeds of Avoidance Actions shall not be used to pay the Super Priority DIP Claim. 

Except in respect of the administrative expense claims provided for in the Carve Out, no costs 

or expenses of administration, including, without limitation, professional fees allowed and 

payable under sections 328, 330, and 331 of the Bankruptcy Code or otherwise, that have 

been or may be incurred in these proceedings, or in any Successor Case, and no priority claims 

are, or will be, senior to, prior to or pari passu with the DIP Protections or the DIP Obligations, 

or with any other claims of the DIP Lender arising hereunder. 

14. The Postpetition Liens and the DIP Super-Priority Claim, to the extent granted 

hereunder to and for the benefit of the DIP Lender, respectively, shall be subject and subordinate 

to the following expenses (collectively, the “Carve Out”): 

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a. the claims of the respective retained professionals of the Debtor in this Case, 

(collectively, the “Retained Professionals”) for fees and expenses incurred at any time 

on and after the Petition Date and prior to the delivery of a Carve-Out Trigger Notice3

up to the amount set forth for each professional in the Budget; provided that, in each case, 

such fees and expenses of the Retained Professionals are ultimately allowed, if and as 

applicable, on a final basis by this Court under sections 330 or 331 or allowed pursuant 

to the Court-approved terms applicable to the retention of the Debtor’s Retained 

Professionals (the “Pre-Termination Date Expenses” and the permitted amount thereof, 

the “Pre-Termination Date Amount”); 

b. the claims of the Retained Professionals for fees and expenses which were 

incurred on and after the delivery of a Carve-Out Trigger Notice; provided that, in each 

case, such fees and expenses of the Retained Professionals are ultimately allowed, if and 

as applicable, on a final basis by this Court under sections 330 or 331 of the Bankruptcy 

Code, and do not exceed $50,000 in the aggregate for all of the Retained Professionals, 

plus the fees and expenses incurred by a trustee or any professionals engaged by any 

successor to the Debtor, including, without limitation, any trustee appointed under 

chapter 11 or 7 of the Bankruptcy Code or any examiner with expanded powers, in an 

aggregate amount not to exceed $20,000 (such fees and expenses described in this clause 

the “Post-Termination Date Expenses” and the permitted amount thereof, the “PostTermination Amount” and, together with the Pre-Termination Date Amount, the 

“Professional Fees”); 

d. the unpaid fees and expenses of the United States Trustee and the Clerk of the 

Court (or any agent thereof) pursuant to 28 U.S.C. § 1930(a)(6) or otherwise; and 

e. unpaid operating expenses up to the amount set forth in the Budget for such 

expenses that were incurred prior to the delivery of a Carve-Out Trigger Notice, solely 

to the extent that such claims would have been authorized to be paid by the Debtor 

prior to such date, pursuant to the Budget, if the Carve-Out Trigger Notice had not been 

delivered. 

15. The following events shall each constitute an event of default hereunder, 

(collectively, the “Events of Default”): 

a. the violation of or failure by the Debtor to perform, in any respect, any of the 

terms, provisions, conditions, covenants, or obligations under this Interim Order 

(including the Budget); 

                                                            

3

 As used herein, “Carve-Out Trigger Notice” means, upon the occurrence of an Event of Default, a written notice 

delivered by the DIP Lender to counsel for the Debtor expressly stating that the Carve-Out has been invoked and 

terminating the right of the Debtor to pay professional fees incurred after such date outside of the Carve-Out. Upon 

receipt of the Carve-Out Trigger Notice, the Debtor shall provide immediate notice by electronic mail to the 

professionals retained in the Case informing them that a Carve-Out Trigger Notice has been received and further 

advising them that the Debtor’s ability to pay professional fees incurred subsequent to the date thereof is subject to 

the Carve-Out. 

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b. the obtaining of credit or the incurring of indebtedness that is (i) secured by a 

security interest, mortgage or other lien on all or any portion of the Post-petition Collateral 

which is equal or senior to any security interest, mortgage or other lien of the DIP Lender, 

or (ii) entitled to priority administrative status which is equal or senior to that granted to 

the DIP Lender herein; 

c. the entry of an order by the Court granting relief from or modifying the automatic 

stay of section 362 of the Bankruptcy Code (i) to allow any creditor to execute upon or 

enforce a lien on or security interest in any Post-petition Collateral, or (ii) with respect to 

any lien of or the granting of any lien on any Post-petition Collateral to any state or local 

environmental or regulatory agency or authority, which in either case would have a 

material adverse effect on the business, operations, property, assets, or condition, financial 

or otherwise, of the Debtor; 

d. the reversal, vacatur, or modification (without the express prior written consent of 

the DIP Lender, in its sole discretion) of this Interim Order; 

e. dismissal of the Case or conversion of the Case to chapter 7 case, or appointment 

of a chapter 11 trustee or examiner with enlarged powers or other responsible 

person; 

f. the sale of any portion of the Debtor’s assets outside the ordinary course of 

business without the prior written consent of the DIP Lender, in its sole discretion; 

g. the Debtor’s failure to obtain entry of a Final Order by April 24, 2020; 

h. the granting of any motion providing for reconsideration, stay, or vacatur of this 

Interim Order; or (1) the Debtor shall assert in any pleading filed in any court that any 

material provision of this Interim Order is not valid and binding for any reason, or (2) any 

material provision of this Interim Order shall, for any reason, cease to be valid and 

binding without the prior written consent of the DIP Lender; and 

i. the surrender or repossession of any of the Debtor’s Equipment (as defined in 

section 1110(a)(3) of the Bankruptcy Code) without the consent of DIP Lender. 

16. Immediately upon the occurrence and during the continuation of an Event of 

Default, the DIP Lender may declare a termination of the obligations to advance any additional 

amounts under the DIP Loan (any such declaration shall be referred to herein as a “Termination 

Declaration”). The Termination Declaration shall be given by e-mail or facsimile (or other 

electronic means) contemporaneously to counsel to the Debtor, counsel to any Statutory 

Committee, and the U.S. Trustee (the earliest date any such Termination Declaration is made 

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17 

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shall be referred to herein as the “Termination Declaration Date”). On the Termination 

Declaration Date the DIP Lender shall not be obligated to advance any additional funds under 

the DIP Loan. Within seven (7) business days after the Termination Declaration Date (the 

“Remedies Notice Period”), the Debtor and/or the Statutory Committee shall be entitled to 

seek an emergency hearing with the Court seeking an emergency determination of whether an 

Event of Default has occurred, with the rights and objections of all parties reserved with respect 

thereto. Unless the Court determines otherwise during the Remedies Notice Period (which shall 

be extended, if necessary, to accommodate the Court’s calendar for an emergency hearing), the 

automatic stay shall automatically be terminated at the end of the Remedies Notice Period without 

further notice to or order of the Court, the DIP Loan Documents, as applicable, and as otherwise 

available at law against the Post-petition Collateral, without further order of or notice, application 

or motion to the Court, and without restriction or restraint by any stay under sections 362 or 105 

of the Bankruptcy Code, or otherwise, against the enforcement of the liens and security interest 

in the Post-petition Collateral or any other rights and remedies granted to the DIP Lender, this 

Interim Order or the DIP Loan Documents, as applicable. In addition, the DIP Lender shall have 

the right to file an emergency motion with the Court during the Remedies Notice Period 

seeking, among other things, relief from the automatic stay otherwise applicable to the DIP 

Lender so as to be able to exercise its rights and remedies at law or in equity to satisfy the DIP 

Obligations, the Superpriority Claims, and any other obligation under this Interim Order or the 

DIP Loan Documents. 

17. This Interim Order shall be sufficient and conclusive evidence of the validity, 

perfection, and priority of the Post-petition Liens without the necessity of filing or recording any 

financing statement, deed of trust, mortgage, or other instrument or document which may 

Case 20-13924-AJC Doc 7 Filed 03/25/20 Page 33 of 41
18 

9661024‐2  

otherwise be required under the law of any jurisdiction or the taking of any other action (including, 

for the avoidance of doubt, entering into any deposit account control agreement) to validate or 

perfect the Post-petition Liens, or to entitle the DIP Lender to the priorities granted herein. 

Notwithstanding the foregoing, the Debtor and the DIP Lender 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 possession of or control over, 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 Lender shall, in its sole discretion, choose to file such 

financing statements, trademark filings, copyright filings, mortgages, notices of lien or similar 

instruments, or take possession of or control over, 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, non-avoidable and not subject to challenge or 

dispute or subordination, at the time and on the date of entry of this Interim Order. Upon the 

request of the DIP Lender, without any further consent of any party, the Debtor is authorized 

to take, execute, deliver and file such instruments (in each case without representation or 

warranty of any kind) to enable the DIP Lender to further validate, perfect, preserve and enforce 

the Post-petition Liens and claims. The Debtor shall execute and deliver to the DIP Lender all 

such agreements, financing statements, instruments and other documents as the DIP Lender may 

reasonably request to more fully evidence, confirm, validate, perfect, preserve and enforce 

the Post-petition Liens and claims. All such documents will be deemed to have been recorded 

and filed as of the Petition Date. A certified copy of this Interim Order may, in the discretion 

of the DIP Lender, 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 

Case 20-13924-AJC Doc 7 Filed 03/25/20 Page 34 of 41
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9661024‐2  

offices are hereby authorized to accept such certified copy of this Interim Order for filing and 

recording. The DIP Lender, in its discretion, may also file a photocopy of this Interim Order as 

a financing statement with any recording officer designated to file financing statements or with 

any registry of deeds or similar office in any jurisdiction in which the Debtor has real or personal 

property, and in such event, the subject filing or recording officer shall be authorized and is 

directed to file or record such copy of this Interim Order. 

18. Nothing herein shall be construed as consent to the allowance of, or obligate the 

DIP Lender to pay, any professional fees or expenses of the Debtor, any Statutory Committee or 

of any person or shall affect the right of the DIP Lender to object to the allowance and payment 

of such fees and expenses or to permit the Debtor to pay any such amounts not set forth in the 

Budget. The DIP Lender reserves the right to object to any request or application for the payment 

of professional fees that may be submitted or filed in the Case. 

19. No costs or expenses of administration that have been or may be incurred in the 

Chapter 11 Case at any time shall be charged against the DIP Lender or the Post-petition Collateral 

20. Neither the proceeds from DIP Loan nor the Carve Out funds may be used: (a) in 

connection with or to finance, directly or indirectly, in any way any action, suit, arbitration, 

proceeding, application, motion or other litigation of any type (i) adverse to the interests of the 

DIP Lender, (ii) invalidating, setting aside, avoiding, recharacterizing or subordinating, in whole 

or in part, the obligations under the DIP Loan or this Interim Order, (iii) for monetary, injunctive 

or other affirmative relief against the DIP Lender, or (iv) preventing, hindering or otherwise 

delaying the exercise by the DIP Lender of any rights and/or remedies under this Interim Order, 

or applicable law, or the enforcement or realization (whether by foreclosure, credit bid, further 

order of the Court or otherwise) by the DIP Lender upon any of the Collateral or Post-petition 

Case 20-13924-AJC Doc 7 Filed 03/25/20 Page 35 of 41
20 

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Collateral; (b) for objecting to, contesting, or interfering with in any way the DIP Lender’s 

enforcement or realization upon any of the Post-petition Collateral once an Event of Default 

has occurred; (c) for selling or otherwise disposing of the Postpetition Collateral without the 

consent of the DIP Lender; (d) for objecting to or challenging in any way the claims, liens, or 

interests (including interests in the Post-petition Collateral) held by or on behalf of the DIP 

Lender; (e) for asserting, commencing or prosecuting any claims or causes of action whatsoever, 

including, without limitation, any Avoidance Actions, against the DIP Lender; (f) for prosecuting 

an objection to, contesting in any manner, or raising any defenses to, the validity, extent, amount, 

perfection, priority, or enforceability of any other rights or interests of DIP Lender; or (g) for 

preventing, hindering or otherwise delaying the exercise by the DIP Lender of any rights and 

remedies granted under this Interim Order. 

21. All net proceeds of the sale or other disposition of any Post-petition Collateral 

outside the ordinary course of business, prior to the occurrence of an Event of Default, shall be 

paid to the DIP Lender pending the application thereof to the DIP Obligations according to the 

provisions of this Interim Order and subject, in all respects, to the Carve Out. 

22. The DIP Lender has acted in good faith in connection with this Interim Order and 

its respective reliance on this Interim Order is in good faith. Based on the findings set forth in 

this Interim Order and in accordance with section 364(e) of the Bankruptcy Code, which is 

applicable to the DIP Loan contemplated by this Interim Order, in the event any or all of the 

provisions of this Interim Order are hereafter modified, stayed, amended or vacated by a 

subsequent order of this or any other Court, the DIP Lender is entitled to the protections provided 

in section 364(e) of the Bankruptcy Code and no such modification, stay, amendment or vacation 

shall affect the validity and enforceability of any advances made hereunder or the liens, claims 

Case 20-13924-AJC Doc 7 Filed 03/25/20 Page 36 of 41
21 

9661024‐2  

or priority authorized or created hereby. Notwithstanding any such modification, amendment or 

vacatur, any claim or lien granted to the DIP Lender hereunder arising prior to the effective date 

of such modification, amendment or vacatur of any DIP Protections granted to the DIP Lender 

shall be governed in all respects by the original provisions of this Interim Order, and the DIP 

Lender shall be entitled to all of the rights, remedies, privileges and benefits, including the DIP 

Protections granted herein, with respect to any such claim or lien. Since the loan made pursuant 

to the DIP Loan Documents is made in reliance on this Interim Order, the obligations owed to the 

DIP Lender prior to the effective date of any stay, modification or vacation of this Interim Order 

cannot, as a result of any subsequent order in the Case or in any Successor Case, be subordinated, 

lose its lien priority or super priority administrative expense claim status, or be deprived of the 

benefit of the status of the liens and claims granted to the DIP Lender under this Interim Order 

and/or the DIP Loan Documents. 

23. All costs and expenses of the DIP Lender in connection with the Case, including, 

without limitation, legal, accounting, financial advisory fees, will be paid by the Debtor. The 

DIP Lender shall provide to the U.S. Trustee, counsel to the Debtor and counsel to the Statutory 

Committee (the “Fee Notice Parties”), on a monthly basis, the total amount of professional fees 

and expenses described in this subsection that are incurred per calendar month in the Case, upon 

request, along with summary invoices relating to such fees and expenses. Under no 

circumstances shall professionals for the DIP Lender be required to comply with the U.S. Trustee 

fee guidelines. I n the event any of the Fee Notice Parties object to such fees or expenses, 

or any portion thereof, such objecting Fee Notice Party shall send written notice of such objection 

to the DIP Lender within five (5) days of receipt of the invoice. Any unresolved objection shall 

be resolved by the Court after notice and hearing. Absent any objections, the Debtor shall pay 

Case 20-13924-AJC Doc 7 Filed 03/25/20 Page 37 of 41
22 

9661024‐2  

such requested fees and expenses within five (5) days of receipt of the invoices. 

24. The automatic stay imposed under section 362(a) of the Bankruptcy Code is 

hereby modified to the extent necessary to implement this Interim Order, including, without 

limitation, to (1) permit the Debtor to grant the Post-petition Liens and to incur all liabilities and 

DIP Obligations to the DIP Lender hereunder, and (2) authorize the DIP Lender to retain and apply 

payments hereunder in accordance with the provisions of this Interim Order. 

25. The DIP Lender may, but is not required to file proofs of claim in the Case or 

any Successor Case. Any order entered by the Court in relation to the establishment of a bar 

date for any claim (including without limitation administrative claims) in the Case or any 

Successor Case shall not apply to the DIP Lender. Notwithstanding any order entered by the Court 

in relation to the establishment of a bar date in the Case or Successor Case to the contrary, the 

DIP Lender is hereby authorized and entitled, in its sole discretion, but not required, to file (and 

amend and/or supplement, as it sees fit) a proof of claim in the Case or any Successor Case. 

26. The Final Hearing to consider entry of the Final Order and final approval of the 

DIP Loan , shall be held on ________ at , at the United States Bankruptcy Court for the 

Southern District of Florida, Miami Division, C. Clyde Atkins United States Courthouse, 301 

North Miami Avenue, Room , Miami, FL 33128 before the Honorable 

_________________, United States Bankruptcy Judge. 

27. This Court has and will retain jurisdiction to enforce this Interim Order according 

to its terms. 

###

 

Case 20-13924-AJC Doc 7 Filed 03/25/20 Page 38 of 41
23 

9661024‐2  

SUBMITTED BY:

Paul J. Battista, Esq 

Genovese Joblove & Battista, P.A.

100 S.E. Second Street, 44th Floor 

Miami, FL 33131 

(305) 349-2300 (p) 

(305) 349- 2310 (f) 

pbattista@gjb-law.com

Case 20-13924-AJC Doc 7 Filed 03/25/20 Page 39 of 41
17

EXHIBIT B 

BUDGET 

Case 20-13924-AJC Doc 7 Filed 03/25/20 Page 40 of 41
MIAMI AIR INTERNATIONAL 

CASH FORECAST

Petition Filing Date through April 24,2020

Total

Description Amount

Bank of America Opening Available Balance $ 1,560,258.49

Receipts

GOVERNMENT RECEIPTS 1,652,084.72 

MISCELLANEOUS DEPOSITS 2,030,199.19 

TRANSFERS FROM ESCROW ACCOUNT - 

 Total Receipts 3,682,283.91 

Payments

401K Transfer 215,000.00 

Post Petition General Payables & Credit Cards 827,361.64 

DFAS ACH Payments 252,036.73

AMEX Payments 100,000.00

Critcal Vendor Payments 2,086,538.88 

Utility Payments 29,950.00 

TUI Tax Payments to US Gov't 1,038,193.20

3 -Aircraft Lease-N749MA-ACG-10/17/16 - 

9 -Aircraft Lease-N758MA-Aergo Capital - 

10-Aircraft Lease-N735MA-SMBC Aviation - 

11-Aircraft Lease-Engine Lease - ELFC - 

12-Aircraft Lease-Engine Lease - Kellstrom - 

Rent and Other office equipment rent 58,993.54 

Commercial Insurance 703,788.29 

Professional Fees - Attorney - 

United States Trustee Fees (1st pmt in Apr) 21,759.17 

Auto Debit - Fuel - 

Auto Debit - Visa 75,000.00

Captain Accounts Funding - 

Debit Memos - 

FET Taxes 309,375.02 

PFC, AGRI, CUSTOMS, IMMIGRA 100,319.20 

Maintenance Reserve - N735 - - 

Maintenance Reserve - N749 - 10/17/16 - 

Maintenance Reserve - N758 - 

Maintence Reserve-Engine Lease - ELFC - 

Maintenancae Reserve-Engine Lease - Kellstrom - 

Payroll Bi-Monthly 1,211,169.02 

Payroll Taxes - Monthly 231,333.28 

Health Insurance 200,000.00 

Health Insurnace Stop Loss Policy Premium 47,480.90 

September 11th Security Fee 151,648.00 

Taxes - Quarterly (Jan-Mar) - 

Wire Transfers - Fuel 180,000.00 

Wire Transfers - MACA 25,258.48 

 Total Payments 7,865,205.35

Net Operating Cash Flow +/- $ (4,182,921.43)

Managed Funds - Receipts

RADIANT GLOBAL LOGISTICS - Government -

GOVERNMENT RECEIPTS - SUN COUNTRY -

 Total Receipts - 

Managed Funds - Payments

Wire Transfers - Radiant Global Logistics - 

Wire Transfers - Sun Country AMC - 

Wire Transfers - Apple/TUI - 

 Total Debits 0.00

Managed Funds Net Cash Flow +/- 0.00

Bank of America Closing Available Balance $ (2,622,662.94)

Case 20-13924-AJC Doc 7 Filed 03/25/20 Page 41 of 41