4874-0755-9072 

Jason S. Brookner (TX Bar No. 24033684) 

Amber M. Carson (TX Bar No. 24075610) 

Emily F. Shanks (TX Bar No. 24110350) 

GRAY REED 

1601 Elm Street, Suite 4600 

Dallas, Texas 75201 

Telephone: (214) 954-4135 

Facsimile: (214) 953-1332 

Email: jbrookner@grayreed.com 

 acarson@grayreed.com 

 eshanks@grayreed.com 

 

Proposed Counsel to the Debtors 

and Debtors in Possession 

IN THE UNITED STATES BANKRUPTCY COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION

NOTICE OF REVISED PROPOSED ORDER 

PLEASE TAKE NOTICE that attached to this Notice as Exhibit A is a revised proposed 

order granting the Debtors’ Emergency Motion for Entry of Interim and Final Orders 

(I) Authorizing the Debtors to (A) Obtain Postpetition Financing and (B) Utilize Cash Collateral, 

1 The Debtors in these chapter 11 cases and the last four digits of each Debtors’ federal tax identification number are 

as follows: ECL PH Services Group LLC (6746); Eye Care Leaders Portfolio Holdings, LLC (0576); Alta Billing 

Holdings, LLC (4944); Alta Billing, LLC (4823); Canta Health, LLC (7791); DJRTC, LLC (N/A); ECL Group, LLC 

(9195); ECL Holdings, LLC (8888); Eye Care Leaders Holdings, LLC (1701); iMedicWare, Inc. (6251); IMW EMR, 

LLC (6421); IMW Holdings, LLC (3980); Insight Software, LLC (8321); Integrity EMR Holdings, LLC (3877); 

Integrity EMR, LLC (3716); IO Practiceware, Inc. (4507); IOPW Holdings, LLC (0461); IOPW, LLC (N/A); Keymed 

Holdings, LLC (0301); Keymed, LLC (9379); MD Office, LLC (9075); MDO Group Holdings, LLC (0435); MDX, 

LLC (5074); Medflow Holdings, LLC (7716); Medflow, Inc. (N/A); MNI Holdings, LLC (7633); MRX Holdings, 

LLC (N/A); My Vision Express, Inc. (N/A); Penn Medical Informatics Systems, LLC (4584); PI Software Holdings, 

LLC (N/A); PI Software, LLC (N/A); PMX, LLC (N/A); Revenue Health Solutions, LLC (7025); RHS Holdings, 

LLC (N/A); and The Hoehne Group – Software Division, Inc. (7788). The Debtors’ principal offices are located at 

555 S. Mangum Street, Suite 100, Durham, NC 27701. 

 § 

In re: § Chapter 11 

 § 

EYE CARE LEADERS PORTFOLIO 

HOLDINGS, LLC, et al.,

1

§ 

§ 

Case No. 24-80001 (MVL) 

 § 

Debtors. § (Jointly Administered) 

 § 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 1 of 114
2 

4874-0755-9072 

(II) Granting Liens and Superpriority Administrative Expense Claims, (III) Granting Adequate 

Protection, (IV) Modifying the Automatic Stay, (V) Scheduling a Final Hearing, and (VI) Granting 

Related Relief [Docket No. 38]. 

PLEASE TAKE FURTHER NOTICE that attached to this Notice as Exhibit B is a 

redline of the revised proposed order marked against the version filed at Docket No. 38. 

Respectfully submitted this 25th day of January, 2024. 

GRAY REED 

 

By: /s/ Jason S. Brookner

 Jason S. Brookner 

 Texas Bar No. 24033684 

 Amber M. Carson 

 Texas Bar No. 24075610 

 Emily F. Shanks 

 Texas Bar No. 24110350 

1601 Elm Street, Suite 4600 

Dallas, Texas 75201

Telephone: (214) 954-4135 

Facsimile: (214) 953-1332 

Email: jbrookner@grayreed.com 

 acarson@grayreed.com 

 eshanks@grayreed.com 

Proposed Counsel to the Debtors 

and Debtors in Possession

Certificate of Service 

I certify that on January 25, 2024, I caused a copy of the foregoing document to be served 

by the Electronic Case Filing System for the United States Bankruptcy Court for the Northern 

District of Texas. 

/s/ Jason S. Brookner

Jason S. Brookner 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 2 of 114
4874-0755-9072 

Exhibit A 

Revised Proposed Order

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 3 of 114
4861-1202-7294 

INTERIM ORDER (I) AUTHORIZING THE 

DEBTORS TO (A) OBTAIN POSTPETITION FINANCING 

AND (B) UTILIZE CASH COLLATERAL, (II) GRANTING LIENS AND 

SUPERPRIORITY ADMINISTRATIVE EXPENSE CLAIMS, (III) GRANTING 

ADEQUATE PROTECTION, (IV) MODIFYING THE AUTOMATIC STAY, 

(V) SCHEDULING A FINAL HEARING, AND (VI) GRANTING RELATED RELIEF 

1 The Debtors in these chapter 11 cases and the last four digits of each Debtors’ federal tax identification number are 

as follows: ECL PH Services Group LLC (6746); Eye Care Leaders Portfolio Holdings, LLC (0576); Alta Billing 

Holdings, LLC (4944); Alta Billing, LLC (4823); Canta Health, LLC (7791); DJRTC, LLC (N/A); ECL Group, LLC 

(9195); ECL Holdings, LLC (8888); Eye Care Leaders Holdings, LLC (1701); iMedicWare, Inc. (6251); IMW EMR, 

LLC (6421); IMW Holdings, LLC (3980); Insight Software, LLC (8321); Integrity EMR Holdings, LLC (3877); 

Integrity EMR, LLC (3716); IO Practiceware, Inc. (4507); IOPW Holdings, LLC (0461); IOPW, LLC (N/A); Keymed 

Holdings, LLC (0301); Keymed, LLC (9379); MD Office, LLC (9075); MDO Group Holdings, LLC (0435); MDX, 

LLC (5074); Medflow Holdings, LLC (7716); Medflow, Inc. (N/A); MNI Holdings, LLC (7633); MRX Holdings, 

LLC (N/A); My Vision Express, Inc. (N/A); Penn Medical Informatics Systems, LLC (4584); PI Software Holdings, 

LLC (N/A); PI Software, LLC (N/A); PMX, LLC (N/A); Revenue Health Solutions, LLC (7025); RHS Holdings, 

LLC (N/A); The Hoehne Group – Software Division, Inc. (7788). The Debtors’ principal offices are located at 555 S. 

Mangum Street, Suite 100, Durham, NC 27701. 

IN THE UNITED STATES BANKRUPTCY COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

 § 

In re: § Chapter 11 

 § 

EYE CARE LEADERS PORTFOLIO 

HOLDINGS, LLC, et al.,

1

§ 

§ 

Case No. 24-80001(MVL) 

 § (Jointly Administered) 

Debtors. § 

 § 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 4 of 114
2 

4861-1202-7294 

Upon the motion (the “Motion”)2 of the above-captioned debtors and debtors in possession 

(collectively, the “Debtors”) for entry of interim and final orders pursuant to sections 105, 361, 

362, 363, 364(c)(1), 364(c)(2), 364(c)(3), 364(d), 364(e), 503 and 507 of title 11 of the United 

States Code, 11 U.S.C. §§ 101, et seq. (the “Bankruptcy Code”), rules 2002, 4001, 6003, 6004 and 

9014 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) and Section D of 

the Procedures for Complex Cases in the Northern District of Texas (the “Complex Case 

Procedures”) seeking, among other things: 

a. entry of an interim order (this “Interim DIP Order”) and subsequently, a final order 

(the “Final DIP Order”): 

(i) Authorizing the Debtors to use the purported cash collateral of their 

Prepetition Lenders, in accordance with the terms and conditions set forth 

in the Interim DIP Order and in accordance with the Approved Budget and 

authority for the Debtors to grant adequate protection to the Prepetition 

Lender with respect to any postpetition diminution in the value of their 

potential interests in the Prepetition Collateral (as defined below) arising 

from, among other things, the Debtors’ sale, use, or lease of the Prepetition 

Collateral and, subject to entry of the Final DIP Order, the priming of the 

alleged prepetition liens held by the Prepetition Lenders (as defined below) 

by the DIP Liens (as defined below); 

(ii) Subject and subordinate to the Carve Out (as defined below), replacement 

liens to the Prepetition Lenders, to the extent they have valid prepetition 

liens on the Prepetition Collateral; 

(iii) Authorizing the Debtors, as borrowers, to enter into a senior secured 

postpetition financing facility (the “DIP Facility”) consisting of a 

superpriority debtor in possession credit facility pursuant to the terms and 

conditions of that certain Superpriority Secured Debtor in Possession Credit 

Facility Term Sheet (as amended or modified from time to time, the “DIP 

Term Sheet”) among the Debtors and Create Capital, LLC (the “DIP 

Lender”) attached to this Interim DIP Order as Exhibit 1, and which shall 

consist of a superpriority priming line of credit and term loan facility with 

an aggregate principal amount of up to $8.0 million from the DIP Lender as 

follows: 

a. Interim Approval. From the date of the Interim DIP Order until the 

date a Final DIP Order is entered (the “Interim Period”), approval to 

2 Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Motion. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 5 of 114
3 

4861-1202-7294 

draw DIP Loans in the maximum amount of $1.3 million, subject to 

compliance with the terms, conditions, and covenants described in 

the DIP Term Sheet, the Interim DIP Order, and the Approved 

Budget (defined below); and 

b. Final Approval. Upon entry of the Final DIP Order, approval to 

draw DIP Loans in an amount up to $6.7 million, subject to 

compliance with the terms, conditions and covenants described in 

the DIP Loan Documents (defined below), the Final DIP Order and 

the Approved Budget; 

(iv) Authorizing the Debtors to execute and enter into the DIP Term Sheet and 

any other agreements, instruments, pledge agreements, guarantees, security 

agreements, intellectual property security agreements, control agreements, 

notes and other documents reasonably required by the DIP Lender 

(collectively, and together with the Orders, the “DIP Loan Documents” and 

all obligations and indebtedness of any of the Debtors to the DIP Lender 

under the DIP Loan Documents (including, without limitation the DIP 

Loans), collectively, the “DIP Obligations”) and to perform their respective 

obligations thereunder and all such other and further acts as may be 

necessary, appropriate, or desirable in connection with the DIP Loan 

Documents, including, but not limited to, granting or perfecting liens or 

security interests by any of the Debtors in favor of and for the benefit of the 

DIP Lender on account of the DIP Facility; 

(v) Authorization and direction for the Debtors to use the proceeds of the DIP 

Facility as expressly provided in the DIP Loan Documents and in 

accordance with the Approved Budget; 

(vi) Authorizing the Debtors to pay the principal, interest, fees, expenses and 

other amounts payable under the DIP Term Sheet and the DIP Loan 

Documents as such become earned, due and payable, including, but not 

limited to, the fees and costs of the DIP Lender’s professionals, advisors, 

and consultants (collectively, the “DIP Lender Reimbursements”); 

(vii) Granting to the DIP Lender allowed superpriority claims, subject to the 

Carve Out (as defined below), pursuant to section 364(c)(1) of the 

Bankruptcy Code payable from and having recourse to all assets of the 

Debtors; 

(viii) Granting to the DIP Lender (a) liens on all unencumbered prepetition and 

postpetition property of the Debtors and their respective estates and the 

proceeds thereof pursuant to section 364(c)(2) of the Bankruptcy Code 

including—subject to and effective upon entry of the Final DIP Order, and 

as a “last look” in the event the DIP Lender is not otherwise repaid in full—

any Avoidance Proceeds (as defined below), (b) for purposes of the Interim 

DIP Order only, a junior lien pursuant to 364(c)(3) of the Bankruptcy Code 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 6 of 114
4 

4861-1202-7294 

on the assets of Insight Software, LLC, Keymed, LLC, MD Office, LLC 

and MRX Holdings, LLC (the “Allegedly Encumbered Debtors”), (c), 

subject to entry of the Final DIP Order, priming liens pursuant to section 

364(d) of the Bankruptcy Code on all prepetition and postpetition property 

of the Debtors’ estates and all proceeds thereof, in each case of (a), (b) and 

(c) above, subject to the Carve Out and with the relative priorities set forth 

in the Interim DIP Order, and (d) the right to lower the DIP Commitment in 

its sole discretion if the senior priming liens described in (iii) above are not 

granted pursuant to the terms of the Final DIP Order; 

(ix) Subject to entry of the Final DIP Order approving such relief, waiving (a) 

any equitable doctrine of marshaling and (b) the Debtors’ right to surcharge 

the DIP Collateral pursuant to section 506(c) of the Bankruptcy Code; 

(x) Authorizing the DIP Lender to terminate (a) all commitments to extend 

credit under the DIP Facility, and (b) to terminate the Debtors’ sale, use, or 

lease of Cash Collateral or the proceeds of the DIP Facility, each upon the 

occurrence and continuance of an Event of Default (as defined below); 

(xi) Modifying the automatic stay of Bankruptcy Code section 362 (the 

“Automatic Stay”) to the extent necessary to implement and effectuate the 

terms and provisions of the DIP Loan Documents, including the Interim 

DIP Order; 

(xii) Approving a waiver of any applicable stay (including under Bankruptcy 

Rule 6004) with respect to the effectiveness of this Interim DIP Order; 

(xiii) Scheduling an interim hearing (the “Interim Hearing”) on the Motion; 

(xiv) Scheduling a final hearing (the “Final Hearing”) such that the Final Order 

is entered no later than 35 days after the Petition Date to consider final 

approval of the DIP Facility; and 

(xv) Granting such other and further relief as is just and proper. 

and this Court having considered the Motion, the exhibits attached thereto, the DIP Loan 

Documents, and the Declaration of Sophia Turrell, Chief Executive Officer, in Support of First 

Day Motions (the “First Day Declaration”) and the Declaration of Mark Shapiro in support of the 

Motion (the “Shapiro Declaration,” together with the First Day Declaration, the “Declarations”), 

the evidence submitted, and the record made at the Interim Hearing held before this Court on 

January 25, 2024; and due, proper and sufficient notice of the Motion, having been given in 

accordance with Bankruptcy Rules 4001(b), (c), and (d) and 9014, and the local rules, procedures 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 7 of 114
5 

4861-1202-7294 

and orders of the Court; and the Interim Hearing to consider the relief requested in the Motion 

having been held and concluded; and all objections, if any, to the relief requested in the Motion 

having been withdrawn, resolved, or overruled by this Court; and it appearing to this Court that 

granting the interim relief requested is necessary to avoid immediate and irreparable harm to the 

Debtors and their estates (as defined under Bankruptcy Code section 541, the “Estates”), and 

otherwise is fair and reasonable and in the best interests of the Debtors, their Estates, and their 

creditors and other constituents, and is essential for the continued operation of the Debtors’ 

business; and after due deliberation and consideration, and good and sufficient cause appearing 

therefor; 

THE COURT HEREBY MAKES THE FOLLOWING FINDINGS OF FACT AND 

CONCLUSIONS OF LAW: 

A. Petition Date. On January 16, 2024 (the “Petition Date”), each of the Debtors filed 

a voluntary petition for relief under chapter 11 of the Bankruptcy Code in this Court commencing 

these chapter 11 cases (these “Chapter 11 Cases”). On January 22, 2024, this Court entered an 

order approving the joint administration of these Chapter 11 Cases. The Debtors are continuing 

to operate their business and manage their affairs as debtors in possession pursuant to sections 

1107(a) and 1108 of the Bankruptcy Code. No trustee, examiner, or official committee of 

unsecured creditors (“Committee”) has been appointed in these Chapter 11 Cases. 

B. Jurisdiction and Venue. This Court has jurisdiction, pursuant to 28 U.S.C. §§ 

157(b) and 1334, over these Chapter 11 Cases, the Motion, the parties, and the Debtors’ property. 

This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). Venue for these Chapter 11 Cases 

and proceedings on the Motion is proper in this district pursuant to 28 U.S.C. §§ 1408 and 1409. 

The statutory bases for the relief sought herein are Bankruptcy Code sections 105, 361, 362, 363, 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 8 of 114
6 

4861-1202-7294 

364, 503, and 507, Bankruptcy Rules 2002, 4001, 6003, 6004, and 9014, and the Complex Case 

Procedures. 

C. Prepetition Secured Debt. According to the Motion, between 2014 and 2017, 

certain of the Debtors entered into multiple allegedly secured term loan agreements (collectively, 

the “Prepetition Term Loans” and the underlying documents being the “Prepetition Loan 

Documents”) with various entities related to GHTG Investment, LLC (collectively, the 

“Prepetition Lenders”) for the purpose of acquiring certain other Debtor entities. Each Prepetition 

Term Loan, if truly debt, is due at maturity, bears interest at rates of 5–5.50% per annum and 

matures in either June 2029 or December 2029. As of the Petition Date, the outstanding aggregate 

principal and interest due under the Prepetition Term Loans purports to be approximately $118 

million. The Debtors have no other long-term debt obligations. 

i. The Debtors content that certain of the Prepetition Term Loans are 

purportedly secured by the membership interests and books and records of the borrowing and 

acquired entities, and all proceeds, supporting obligations, and products of the foregoing. Certain 

others are purportedly secured by substantially all of the borrowers’ assets. The relevant 

Prepetition Lenders may not be fully perfected. A chart listing each Prepetition Term Loan is 

attached to the First Day Declaration as Exhibit C. 

ii. Pursuant to the Motion, the Prepetition Loan Documents generally attempt 

to grant security interests to the Prepetition Lenders in substantially all of certain Debtors’ assets. 

The Debtors contend that, at this juncture, it does not appear as if the Prepetition Lenders have 

properly perfected their liens in the Debtors’ cash because it appears the Prepetition Lenders do 

not “control” the deposit accounts: (i) there do not appear to be any deposit account control 

agreements (“DACAs”) in place with respect to any of the Debtors and (ii) the Prepetition Lenders 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 9 of 114
7 

4861-1202-7294 

do not appear to be banks and there do not appear to be any deposit accounts residing at any of the 

Prepetition Lenders in which the Debtors deposit cash. 

iii. Additionally, the Debtors contend it appears there may be other lien and 

perfection (imperfection) issues because, for certain of the Debtors, no UCC-1 financing statement 

was filed at all, and in other instances, UCC-1 financing statements extend only to a pledge of the 

stock/membership interests in certain subsidiaries and not to any assets of the borrower or the 

subsidiary in question. 

iv. Attached as Exhibit B to the Motion is a chart showing, among other things, 

the Debtors’ belief as to which Debtors have financing statements filed against them, and the scope 

of the collateral set forth in the applicable UCC-1 financing statement. 

v. The Debtors therefore contend that, because the Prepetition Lenders do not 

have a properly perfected lien on the Debtors’ cash, they cannot meet their burden of proof under 

section 363(p) of the Bankruptcy Code and are not entitled to adequate protection for the Debtors’ 

postpetition use of cash. The Debtors nonetheless seek to provide the Prepetition Lenders with 

replacement liens as adequate protection on an interim basis, pending entry of the Final DIP Order 

and a determination by the Court as to the validity, priority and extent of the Prepetition Lenders’ 

alleged liens. 

vi. The Debtors further contend that the Prepetition Lenders are all insiders of 

Global Growth Holdings, Inc. and its affiliates (including the individual behind Global Growth, 

Greg Lindberg), the private equity firm that was the indirect prior owner of the Debtors before the 

Debtors were transferred into an irrevocable trust on or about July 22, 2021, called the “ECL 

Trust.” The ECL Trust, since its formation, has been the sole member of Eye Care Leaders 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 10 of 114
8 

4861-1202-7294 

Holdings Portfolio, LLC (“HoldCo”), the Debtors’ ultimate parent, as set forth in HoldCo’s 

Amended and Restated Operating Agreement also dated July 22, 2021. 

vii. As a result of this insider relationship, and the multiple proceedings and 

allegations against Global Growth, Mr. Lindberg and various affiliates,3

 the Debtors believe that 

the claims and liens allegedly held by the Prepetition Lenders are subject to recharacterization 

and/or equitable subordination. 

D. Findings Regarding DIP Facility and the Use of Cash Collateral. 

i. Request for Postpetition Financing and Use of Cash. The Debtors seek 

authority to enter into and perform under the DIP Loan Documents. The DIP Lender shall have 

no obligation to make loans or advances except pursuant to the terms and conditions set forth 

herein and in the other DIP Loan Documents and no obligation to waive any conditions required 

thereunder. The Debtors also seek authority to use case on the terms described herein, and in 

accordance with the Approved Budget, which shall be subject to Permitted Variances (as defined 

below) to administer their Chapter 11 Cases and fund their operations. 

3 See, e.g., PB Life & Annuity Co., Ltd. v. Lindberg, et al., Adv. No. 23-01000 (LGB) (Bankr. S.D.N.Y.); United States 

v. Lindberg, et al., Case No. 5:19-cr-22-MOC-DSC (W.D.N.C.); United States v. Lindberg, 3:23-cr-48-MOC 

(W.D.N.C.); see also Southland Nat'l Ins. Corp. v. Lindberg, 289 N.C. App. 378, 381, 889 S.E.2d 512, 516 (2023), 

writ allowed, 894 S.E.2d 747 (N.C. 2023) and review allowed in part, denied in part, 894 S.E.2d 748 (N.C. 2023); see 

also https://www.justice.gov/opa/pr/former-insurance-executive-indicted-2b-fraud-scheme (last visited on Jan. 18, 

2024) (“ ‘The indictment reveals a carefully orchestrated scheme that relied on a web of complex financial investments 

and transactions designed to evade regulators, disguise the financial health of Lindberg’s insurance companies, and 

conceal the alleged purpose of the scheme: Lindberg’s personal gain,’ said U.S. Attorney Dena J. King for the Western 

District of North Carolina. ‘My office will continue to work with our law enforcement partners to investigate and 

prosecute financial wrongdoing and hold perpetrators accountable for their actions’ ”); 

https://www.justice.gov/criminal/criminal-vns/case/united-states-v-greg-e-lindberg (last visited on Jan. 18, 2024) 

(“According to court documents, from no later than 2016 through at least 2019, Lindberg and others allegedly 

conspired and schemed to defraud various insurance companies, other third parties, and ultimately thousands of 

insurance policyholders. Lindberg allegedly deceived the North Carolina Department of Insurance and other 

regulators, evaded regulatory requirements meant to protect policyholders, concealed the true financial condition of 

his insurance companies, and improperly used insurance company funds for his personal benefit. In particular, the 

indictment alleges that Lindberg personally benefitted from the fraud in part by using insurance company funds to 

finance his lavish lifestyle, including the purchase and refinancing of personal real estate and ‘forgiving’ more than 

$125 million in loans from his affiliated companies to himself to fund his personal expenses”). 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 11 of 114
9 

4861-1202-7294 

ii. Priming of the Prepetition Liens. The Debtors do not seek to prime the 

alleged liens of the Prepetition Lenders as part of this Interim DIP Order. This matter is reserved 

for the Final Hearing. 

iii. Need for Postpetition Financing and Use of Cash. The Debtors do not have 

sufficient liquidity to operate their business in the ordinary course or to pursue either a sale or a 

stand-alone restructuring without the financing requested in the Motion. The Debtors’ ability to 

maintain business relationships with vendors, suppliers, and customers, to pay their employees, 

pay certain fees and expenses as set forth herein, and to otherwise fund their operations is essential 

to the Debtors’ continued viability as the Debtors seek to maximize and preserve the value of their 

respective Estates for the benefit of all stakeholders. The ability of the Debtors to obtain sufficient 

working capital and liquidity through the proposed DIP Facility with the DIP Lender and to use 

cash as set forth in this Interim DIP Order and the DIP Loan Documents is vital to the Debtors’ 

preservation and maintenance of going concern value. If the Debtors do not obtain authorization 

to borrow under the DIP Loan Documents, they, and their Estates, will suffer immediate and 

irreparable harm. Accordingly, the Debtors have an immediate need to obtain the DIP Loans and 

to use cash. 

iv. No Credit Available on More Favorable Terms. As set forth in the Shapiro 

Declaration and as demonstrated at the Interim Hearing, given their current financial condition, 

financing arrangements, and capital structure, the Debtors have been unable to procure the 

necessary financing from sources other than the DIP Lender on terms more favorable than those 

set forth in the DIP Term Sheet. The Debtors have been unable to reasonably obtain adequate 

unsecured credit allowable under Bankruptcy Code section 503(b)(1) as an administrative expense. 

The Debtors have also been unable to obtain secured credit from other sources: (a) having priority 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 12 of 114
10 

4861-1202-7294 

over that of administrative expenses of the kind specified in Bankruptcy Code sections 503(b), 

507(a), and 507(b); (b) secured only by a lien on property of the Debtors and their Estates that is 

not otherwise subject to a lien; or (c) secured solely by a junior lien on property of the Debtors and 

their Estates that is subject to a lien. Financing on a postpetition basis is not otherwise available 

without granting to the DIP Lender: (x) automatically perfected security interests in and liens on 

(each as provided herein) all of the Debtors’ existing and after- acquired assets with the priorities 

set forth herein; (y) superpriority claims and liens; and (z) the other protections to the extent set 

forth in this Interim DIP Order. After considering all reasonable alternatives, the Debtors have 

concluded, in the exercise of their sound and reasonable business judgment, that the DIP Facility, 

including, without limitation, the DIP Loans, represents the best financing available to them at this 

time. 

v. Use of Proceeds of the DIP Facility. As a condition to entry into the DIP 

Loan Documents, the extensions of credit under the DIP Facility and the authorization to use cash, 

the Debtors have agreed, that proceeds of the DIP Facility and cash shall be used in accordance 

with the terms of this Interim DIP Order, the DIP Loan Documents, and the Approved Budget 

(which shall be subject to Permitted Variances), solely to (i) provide working capital and for 

general corporate purposes of the Debtors during the Chapter 11 Cases; (ii) pay interest, fees, costs 

and expenses related to the DIP Facility; (iii) pay the fees, costs and expenses of the estate 

professionals retained in the Chapter 11 Cases as set forth in the Approved Budget and approved 

by the Bankruptcy Court; (iv) pay the DIP Lender Reimbursements; (v) make all permitted 

payments of costs of administration of the Chapter 11 Cases; and (vi) pay such prepetition 

expenses as are consented to by the DIP Lender and approved by the Bankruptcy Court 

(collectively, the “Permitted DIP and Cash Uses”). 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 13 of 114
11 

4861-1202-7294 

vi. The DIP Facility Terms and Conditions are Fair and Reasonable. Based on 

the Motion, the Shapiro Declaration, and the record presented to the Court at the Interim Hearing, 

the terms and conditions of the DIP Facility pursuant to the DIP Loan Documents (including the 

payment of fees and expenses contemplated thereunder) and the use of the DIP Collateral (defined 

below) and cash, pursuant to this Interim DIP Order are fair, reasonable, and the best available to 

the Debtors under the circumstances, reflect the Debtors’ exercise of prudent business judgment 

consistent with their fiduciary duties, are supported by reasonably equivalent value and 

consideration, and were entered into at arm’s-length, under no duress, and without undue 

influence, negligence, or violation of public policy or law. Use of cash and any credit to be 

extended as set forth in the DIP Loan Documents shall be deemed to have been so allowed, 

advanced, made, used, or extended in good faith, and for valid business purposes and uses, within 

the meaning of Bankruptcy Code section 364(e), and the DIP Lender is therefore entitled to the 

protections and benefits of Bankruptcy Code section 364(e) and this Interim Order. 

vii. Bankruptcy Code Sections 506(c) and Marshaling. Subject to entry of the 

Final DIP Order, the DIP Lender is entitled to a waiver of (I) the provisions of Bankruptcy Code 

section 506(c), and (II) the equitable doctrine of “marshaling” or any similar doctrine. 

viii. Adequate Protection. The Debtors have agreed, despite the alleged 

deficiencies in the Prepetition Lender’s Liens and the contention that the Prepetition Lenders’ 

claims and liens may be subject to subordination and/or recharacterization, pursuant to Bankruptcy 

Code sections 361, 362, 363, and 364, to provide the Prepetition Lenders with adequate protection 

against any diminution in value of their interests in the Prepetition Collateral, as set forth herein. 

ix. Good Faith Pursuant to Section 364(e). The terms and conditions of the 

DIP Loan Documents, this Interim DIP Order, and the provision of the DIP Facility were 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 14 of 114
12 

4861-1202-7294 

negotiated in good faith and at arm’s length among the Debtors and the DIP Lender with the 

assistance and counsel of their respective advisors. Credit to be extended under the DIP Facility 

shall be deemed to have been allowed, made, or extended in good faith by the DIP Lender within 

the meaning of section 364(e) of the Bankruptcy Code. 

x. Good and Sufficient Cause Shown. Good and sufficient cause has been 

shown for entry of this Interim DIP Order. The ability of the Debtors to obtain sufficient working 

capital and liquidity under the DIP Loan Documents is vital to the Debtors’ Estates and creditors. 

The relief requested in the Motion is necessary, essential, and appropriate, and is in the best interest 

of and will benefit the Debtors, their creditors, and their Estates, as its implementation will, among 

other things, provide the Debtors with the necessary liquidity to (a) minimize disruption to the 

business and ongoing operations, (b) preserve and maximize the value of the Debtors’ Estates for 

the benefit of all the Debtors’ stakeholders, and (c) maximize and stabilize the value of the 

Debtors’ assets and avoid immediate and irreparable harm to the Debtors, their creditors, their 

business, their employees, and their assets. The terms of the DIP Facility are fair and reasonable, 

reflect each Debtor’s exercise of its business judgment, and are supported by reasonably equivalent 

value and fair consideration. 

xi. Final Hearing. At the Final Hearing, the Debtors will seek final approval 

of the proposed DIP Facility and use of cash pursuant to the Final DIP Order, which shall be in 

form and substance acceptable to the DIP Lender. Notice of the Final Hearing and Final DIP Order 

will be provided in accordance with this Interim DIP Order and no further notice, except as 

provided by this Interim DIP Order, shall be required. 

xii. Notice. Notice of the Interim Hearing and the emergency relief requested 

in the Motion has been provided by the Debtors, whether by facsimile, email, overnight courier, 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 15 of 114
13 

4861-1202-7294 

or hand delivery, to certain parties in interest, including: (a) the U.S. Trustee for the Northern 

District of Texas; (b) the holders of the 30 largest unsecured claims against the Debtors (on a 

consolidated basis); (c) the agent(s) to the Prepetition Lenders; (d) the United States Attorney’s 

Office for the Northern District of Texas; (e) the Internal Revenue Service; (f) the state attorneys 

general for states in which the Debtors conduct business; and (g) any party that has requested 

notice pursuant to Bankruptcy Rule 2002. Under the circumstances, the notice given by the 

Debtors of the Motion, the relief requested therein, and the Interim Hearing is appropriate notice 

thereof and complies with Bankruptcy Rules 4001(b) and (c) and the Complex Case Procedures, 

and no further notice of the relief granted herein is necessary or required. 

Based upon the foregoing findings and conclusions, the Motion and the record before the 

Court with respect to the Motion, and good and sufficient cause appearing therefor, 

IT IS HEREBY ORDERED that: 

1. Motion Approved. The Motion is granted on an interim basis in accordance with 

the terms of this Interim DIP Order. All objections to and reservations of rights with respect to 

the Motion and to the entry of this Interim DIP Order to the extent not withdrawn or resolved are 

hereby overruled on the merits in their entirety. 

2. Authorization of the DIP Loans and the DIP Loan Documents. 

a. The DIP Facility is hereby approved on an interim basis. The Debtors are 

hereby authorized to execute, issue, deliver, enter into, and adopt, as the case may be, the DIP 

Loan Documents. Pending entry of the Final DIP Order, the Debtors are hereby authorized to 

borrow money pursuant to the DIP Loan Documents and request draws thereunder on an interim 

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

the Approved Budget (which shall be subject to Permitted Variances), in an aggregate principal 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 16 of 114
14 

4861-1202-7294 

amount not to exceed $1.3 million. Upon entry of the Final DIP Order, the Debtors may draw 

such amounts as are necessary and agreed to by the DIP Lender subject to the conditions set forth 

in the Approved Budget and the DIP Orders; provided however, that the aggregate amount of all 

DIP Loans shall not exceed $8.0 million (the “Total DIP Commitment”).4 

b. In furtherance of the foregoing and without further approval of this Court, 

each Debtor is authorized to perform all acts, to make, execute, and deliver all instruments and 

documents that may be necessary or required for performance by the Debtors under the DIP Loan 

Documents and the creation and perfection of the DIP Liens described in, provided for, and 

automatically perfected by this Interim DIP Order and the DIP Loan Documents. The Debtors are 

hereby authorized to pay, in accordance with this Interim DIP Order, the principal, interest, fees, 

expenses, DIP Lender Reimbursements and other amounts described in the DIP Loan Documents 

as such become due and without need to obtain further Court approval, as set forth herein. 

c. The Origination Fee and the Closing Fee shall each be earned immediately 

upon entry of this Interim DIP Order. The Origination Fee shall be payable upon the Closing Date 

of the DIP Loan, and shall be deducted from the initial advance approved herein. The Closing Fee 

shall be payable upon the earlier of (i) the DIP Termination Date, or (ii) the closing of a sale 

following entry of a Sale Order (as defined below); provided, however, that no Closing Fee shall 

be payable if the DIP Lender is the successful bidder for the Debtors’ assets. Neither the 

Origination Fee nor the Closing Fee shall be subject to any offset, defense, claim, counterclaim or 

diminution of any type, kind or nature whatsoever. 

d. The DIP Loan Documents, upon execution, shall be valid and binding 

obligations of the Debtors, enforceable against the Debtors and their Estates in accordance with 

4

 The DIP Lender has reserved the right to reduce the Total DIP Commitment in the event the requested lien priming 

pursuant to section 364(d) of the Bankruptcy Code is not authorized as part of the Final DIP Order. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 17 of 114
15 

4861-1202-7294 

their terms, and subject to the terms of this Interim DIP Order. The DIP Loan Documents and this 

Interim Order constitute and evidence the validity and binding effect of the DIP Obligations of the 

Debtors, which DIP Obligations shall be enforceable, jointly and severally, against the Debtors, 

their Estates, and any successors thereto, including, without limitation, any trustee or other estate 

representative appointed in these Chapter 11 Cases or any case under chapter 7 of the Bankruptcy 

Code upon the conversion of any of the Chapter 11 Cases (each, a “Successor Case”). No 

obligation, payment, transfer, or grant of a security or other interest to the DIP Lender under the 

DIP Loan Documents or this Interim DIP Order shall be stayed, restrained, avoidable, voidable, or 

recoverable under the Bankruptcy Code or any applicable law (including, without limitation, under 

Bankruptcy Code section 502(d)), or subject to any defense, reduction, setoff, recoupment, or 

counterclaim of any kind. 

e. From and after the Petition Date, the Debtors are authorized to use 

extensions of credit under the DIP Facility for the purposes specifically set forth in this Interim 

DIP Order and the DIP Loan Documents, and in compliance with the Approved Budget. The 

Debtors are authorized, subject to the satisfaction of the conditions set forth in the DIP Loan 

Documents, to use proceeds of the DIP Collateral and the Prepetition Collateral, subject to the 

Carve Out, and to draw upon the DIP Facility to (a) pay fees, costs, and expenses incurred in 

connection with the transactions contemplated by the DIP Loan Documents; (b) pay other 

administrative costs incurred in connection with the Chapter 11 Cases consistent with the 

Approved Budget, which shall be subject to Permitted Variances; (c) pay for other working capital 

and general corporate purposes of the Debtors consistent with the Approved Budget, which shall 

be subject to Permitted Variance, and other orders entered by the Court; and (d) fund the 

Professional Fee Reserve. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 18 of 114
16 

4861-1202-7294 

3. Non-Material and Material or Adverse DIP Amendments. Subject to the terms and 

conditions of the DIP Loan Documents, the Debtors and the DIP Lender may supplement and 

otherwise make amendments or modifications DIP Loan Document that are non- material and nonadverse to the Debtors. The DIP Lender may waive any provision of the DIP Loan Documents, 

without further approval of the Court; provided, however, that the Debtors shall file a notice on 

the Court’s docket of any such amendment, modification, supplement or waiver, not more than 

three (3) Business Days after the effective date thereof. Any amendments, modifications, or 

supplements to any DIP Loan Documents, other than as set forth in the preceding sentence 

(collectively, “Material or Adverse DIP Amendments”), that are agreed to by the Debtors and the 

DIP Lender, as applicable, in accordance with the terms of the DIP Loan Documents, shall be filed 

on the Docket of these Chapter 11 Cases, with notice to (i) the Office of the United States Trustee 

and (ii) counsel for the Committee or, in the event no Committee is appointed or existing at the 

time, the Debtors’ consolidated list of thirty (30) largest unsecured creditors. If no party in interest 

files an objection to the Material or Adverse DIP Amendment with the Court within five (5) 

Business Days from the date of such notice, the Debtors and the DIP Lender are authorized and 

empowered to execute, deliver, and implement, in accordance with the terms of the DIP Loan 

Documents, such Material or Adverse DIP Amendment, without further notice, hearing, or 

approval of this Court. Any Material or Adverse DIP Amendment subject to a timely and 

unresolved objection must be approved by the Court to be effective. 

4. Approved Budget. 

a. Compliance with Approved Budget. The Debtors and the DIP Lender have 

agreed to the Approved Budget setting forth all projected cash receipts and cash disbursements on 

a weekly basis, a copy of which is attached hereto as Exhibit 2. The Debtors shall deliver an 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 19 of 114
17 

4861-1202-7294 

updated budget to the DIP Lender at such time and in such manner as set forth herein and in the 

DIP Loan Documents. 

b. Permitted Variance and Financial Reporting Requirements. As set forth 

further herein, the Debtors shall deliver the reports required by the DIP Loan Documents, including 

Variance Reports (for operating disbursements only, pursuant to the DIP Loan Documents) and 

Financial Reporting Requirements, as required by the DIP Loan Documents. 

5. Superpriority Claims. Subject and subordinate to the Carve Out, pursuant to 

Bankruptcy Code section 364(c)(1), all of the DIP Obligations shall be allowed claims against the 

Debtors, jointly and severally, with priority over any and all administrative expenses (the “DIP 

Superpriority Claims”) and all other claims against the Debtors, now existing or hereafter arising, 

of any kind whatsoever, including, without limitation, all administrative expenses of the kind 

specified in Bankruptcy Code sections 503(b) and 507(b), and over any and all administrative 

expenses or other claims arising under Bankruptcy Code sections 105, 326, 328, 330, 331, 503(b), 

506(c) (subject to entry of the Final Order), 507(a), 507(b), 726, 1113, or 1114, whether or not 

such expenses or claims may become secured by a judgment lien or other non-consensual lien, 

levy, or attachment, which DIP Superpriority Claims shall be payable from and have recourse to 

all prepetition and postpetition property of the Debtors and their Estates and all proceeds thereof 

including, subject to the entry of the Final Order, the proceeds of actions under Chapter 5 of the 

Bankruptcy Code. Other than the Carve Out, no claims (including, without limitation, any priority 

claims) are, or will be, senior to, prior to, or pari passu with the DIP Superpriority Claims or any 

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

under the DIP Loan Documents or otherwise in connection with the DIP Facility. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 20 of 114
18 

4861-1202-7294 

6. DIP Liens and DIP Collateral. As security for the DIP Obligations, effective and 

perfected automatically upon entry of this Interim DIP Order, pursuant to Bankruptcy Code 

sections 364(c)(2) and 364(c)(3),5 and without the necessity of the execution by the Debtors (or 

recordation or other filing or notice) of security agreements, control agreements, pledge 

agreements, financing statements, mortgages, schedules or other similar documents, or the 

possession or control by the DIP Lender of any property, the DIP Lender is hereby granted security 

interests in and liens and mortgages upon all tangible and intangible prepetition and postpetition 

property in which any or each of the Debtors or their respective Estates have an interest of any 

kind or nature, whether existing on or as of the Petition Date or thereafter acquired or created, 

wherever located, including, without limitation, the proceeds, products, and offspring of any of the 

foregoing, including, subject to the entry of the Final DIP Order, proceeds of claims and causes of 

action arising under Bankruptcy Code sections 502(d), 544, 547, 548, 549, 550 and 553 and any 

other avoidance or similar action under the Bankruptcy Code or applicable nonbankruptcy law 

(such claims and causes of action being “Avoidance Actions” and all tangible and intangible 

prepetition and postpetition property in of the Debtors or their estates being, collectively, the “DIP 

Collateral”), subject and subordinate only to the Carve Out (all such liens and security interests 

granted to the DIP Lender, pursuant to this Interim Order and the DIP Loan Documents, the “DIP 

Liens”), will be provided to the DIP Lender as follows: 

a. First Lien on Unencumbered Property. Pursuant to Bankruptcy Code 

section 364(c)(2), a valid, binding, continuing, enforceable, fully perfected first priority lien on, 

and security interest in, all property of the Debtors, wherever located, that is not subject to a valid, 

perfected, non-avoidable and enforceable lien in existence on or as of the Petition Date or valid 

5

 As stated previously, the Court will address priming liens under section 364(d), as and if necessary, at the Final 

Hearing. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 21 of 114
19 

4861-1202-7294 

liens perfected (but not granted) after the Petition Date to the extent such postpetition perfection 

is permitted by Bankruptcy Code section 546(b), including, but not limited to: (i) any and all 

unencumbered cash, accounts receivable, inventory, general intangibles, contracts, securities, 

chattel paper, owned real property, fixtures, machinery, equipment, vehicles, deposit accounts, 

patents, copyrights, trademarks, tradenames, rights under license agreements and other intellectual 

property; and (ii) the proceeds, products and offspring of all of the foregoing. 

b. Liens Junior to Certain Other Liens. Pursuant to Bankruptcy Code section 

364(c)(3), a valid, binding, continuing, enforceable, fully perfected junior security interest in and 

lien upon all tangible and intangible prepetition and postpetition property of the Debtors that, on 

or as of the Petition Date (including pursuant to Bankruptcy Code section 546(b)), is subject to 

valid, perfected and unavoidable liens. 

c. “Last Look” to Avoidance Action Proceeds. Subject to entry of the Final 

DIP Order and the grant of a lien on proceeds of Avoidance Actions (“Avoidance Action 

Proceeds”), the DIP Lender shall only avail itself of Avoidance Action Proceeds on a “last look” 

basis, and only if all other DIP Collateral is inadequate to indefeasibly repay the DIP Obligations 

in full. 

7. Adequate Protection for the Prepetition Lenders. The Prepetition Lenders are 

hereby granted, pursuant to Bankruptcy Code sections 361, 362, 363(c)(2), and 363(e), 

replacement liens on the Prepetition Collateral to the same extent, validity and priority as existed 

prior to the Petition Date (“Adequate Protection Liens”), subject and subordinate only to (i) the 

DIP Liens and (ii) the Carve Out. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 22 of 114
20 

4861-1202-7294 

8. Carve Out. 

a. As used herein, the term “Carve Out” shall mean an amount equal to the 

sum of the following (A) : (i) all fees required to be paid to the Clerk of the Bankruptcy Court and 

to the Office of the United States Trustee under 28 U.S.C. § 1930(a) plus interest pursuant to 31 

U.S.C. § 3717 (without regard to the notice set forth in clause (ii) below); (ii) to the extent allowed 

by the Bankruptcy Court at any time, whether by interim order, final order, or otherwise, all 

accrued and unpaid fees, disbursements, costs and expenses incurred by persons or firms retained 

by the Debtors pursuant to sections 327, 328 or 363 of the Bankruptcy Code (the “Debtor 

Professionals”) and all accrued unpaid fees, disbursements, costs and expenses incurred by the 

Committee (if any) pursuant to sections 328 and 1103 of the Bankruptcy Code (the “Committee 

Professionals,” together with the Debtor Professionals, the “Estate Professionals,” and such Estate 

Professional fees in each case in accordance with the Budget, the “Allowed Professional Fees”) at 

any time before or on the first business day following delivery by the DIP Lender of a Carve Out 

Trigger Notice (as defined below), whether allowed by the Bankruptcy Court prior to or after 

delivery of a Carve Out Trigger Notice; and (iii) Allowed Professional Fees of Estate Professionals 

in an aggregate amount not to exceed $200,000 incurred after the first business day following 

delivery by the DIP Lender of a Carve Out Trigger Notice, to the extent allowed at any time, 

whether by interim order, final order, or otherwise (the amounts set forth in this clause (iii), the 

“Post-Carve Out Trigger Notice Cap”); provided, however, nothing herein shall be construed to 

impair the ability of any party to object to any fees, expenses, reimbursement or compensation 

sought by any such professionals or any other person or entity. 

b. For purposes of the foregoing, “Carve Out Trigger Notice” shall mean a 

written notice (which may be delivered by e-mail (or other electronic means)) by the DIP Lender 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 23 of 114
21 

4861-1202-7294 

to the Debtors and their counsel, the United States Trustee, and counsel to the Committee, and 

filed on the docket of the Chapter 11 Cases, which notice may be delivered following the 

occurrence of an Event of Default, stating that the Post-Carve Out Trigger Notice Cap has been 

invoked. 

c. On a weekly basis—to the extent there is sufficient cash on hand prior to 

entry of the Final DIP Order, and then following entry of the Final DIP Order—the fees of the 

Debtors’ and Committee’s professionals provided for in the Approved Budget shall be funded into 

one of the Debtors’ accounts at East West Bank to be used solely to satisfy Allowed Professional 

Fees in accordance with any applicable orders entered in the Chapter 11 Cases (the “Professional 

Fee Reserve”). The funds on deposit in the Professional Fee Reserve shall be available to satisfy 

the obligations owed to Estate Professionals, and the DIP Lender shall have a security interest on 

any residual amounts remaining in the Professional Fee Reserve after satisfaction in full of all 

Allowed Professional Fees. 

d. For the avoidance of doubt and notwithstanding anything to the contrary 

herein, the Carve Out shall be senior to all liens and claims securing the DIP Facility, and all other 

forms of adequate protection, liens, or claims securing the DIP Obligations. 

e. Notwithstanding the foregoing, the Carve Out shall not include, apply to, or 

be available for any fees or expenses incurred by any party in connection with (i) the initiation or 

prosecution of any claims, causes of action, adversary proceedings, or other litigation (A) against 

the DIP Lender or (B) challenging the amount, validity, perfection, priority, or enforceability of or 

asserting any defense, counterclaim, or offset to, the obligations and the liens and security interests 

granted under the DIP Loan Documents including, in each case, without limitation, for lender 

liability or pursuant to any section of the Bankruptcy Code, applicable non-bankruptcy law or 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 24 of 114
22 

4861-1202-7294 

otherwise; (ii) attempts to modify any of the rights granted to the DIP Lender; (iii) attempts to 

prevent, hinder, or otherwise delay any of the DIP Lender’s assertion, enforcement, or realization 

upon any DIP Collateral in accordance with the DIP Loan Documents, this Interim DIP Order, and 

the Final DIP Order; (iv) paying any amount on account of any claims arising before the 

commencement of the Chapter 11 Cases unless such payments are provided for in the Approved 

Budget and approved by an order of this Court; (v) the prosecution or support any plan of 

liquidation or reorganization to which the DIP Lender has not consented; or (vi) any direct or 

indirect objection or opposition to, or any other effort to impede or compromise in any way, any 

credit bid made by the DIP Lender to the extent such bid is not consistent with this Interim DIP 

Order. 

9. Limitations on Charging Expenses Against Collateral; No Marshaling. Effective 

upon entry of the Final DIP Order, (i) other than as set forth herein with relation to Avoidance 

Action Proceeds, the DIP Lender shall not be subject to the equitable doctrine of “marshaling” or 

any similar doctrine with respect to the DIP Collateral and all proceeds shall be received and 

applied pursuant to the Final DIP Order and the DIP Loan Documents notwithstanding any other 

agreement or provision to the contrary and (ii) the Debtors (on behalf of themselves and their 

estates) shall waive, and shall not assert in the Chapter 11 Cases or any successor cases, any 

surcharge claim under sections 105(a) and/or 506(c) of the Bankruptcy Code or otherwise for any 

costs and expenses incurred in connection with the preservation, protection or enhancement of, or 

realization by the DIP Lender, upon the DIP Collateral. 

10. Use of Prepetition Collateral and Cash. Subject to the terms and conditions of the 

DIP Loan Documents and this Interim DIP Order, and in accordance with the Approved Budget, 

which shall be subject to Permitted Variances, the Debtors are hereby authorized to use the DIP 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 25 of 114
23 

4861-1202-7294 

Collateral and Prepetition Collateral, including cash, until the DIP Termination Date (as defined 

below) for working capital and general corporate purposes, including interest, fees, costs, and 

expenses related to these Chapter 11 Cases, the DIP Loan, and the DIP Loan Documents, including 

payment of any adequate protection obligations as set forth herein; provided, that nothing in this 

Interim DIP Order shall authorize, other than in the ordinary course of the Debtors’ business, the 

sale, transfer, lease, encumbrance, or other disposition of any assets of the Debtors or their Estates 

without the prior written consent of the DIP Lender (and no such consent or direction shall be 

implied from any other action, inaction, or acquiescence by any DIP Lender or any order of this 

Court), except as permitted in the DIP Loan Documents and this Interim DIP Order and approved 

by the Court to the extent required under applicable bankruptcy law. 

11. Perfection of DIP Liens and Adequate Protection Liens. This Interim DIP Order 

shall be sufficient and conclusive evidence of the validity, perfection, and priority of all liens 

granted herein, including the DIP Liens and the Adequate Protection Liens, without the necessity 

of filing or recording financing statements, intellectual property filings, mortgages, notices of lien 

or similar instruments in any jurisdiction, taking possession of or control over, or the taking of any 

other action (including, for the avoidance of doubt, entering into any deposit account control 

agreement) to validate or perfect (in accordance with applicable non-bankruptcy law) the DIP 

Liens and the Adequate Protection Liens, or to entitle the DIP Lender or the Prepetition Lender to 

the priorities granted herein. Notwithstanding the foregoing, the DIP Lender and the Prepetition 

Lender each are hereby authorized, but not required, to file or record financing statements, 

intellectual property filings, mortgages, notices of lien or similar instruments in any jurisdiction, 

taking possession of or control over, or take any other action, as they may elect, in order to validate 

and perfect the liens and security interests granted to them hereunder. Whether or not the DIP 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 26 of 114
24 

4861-1202-7294 

Lender or Prepetition Lender chooses to file such financing statements, intellectual property 

filings, mortgages, notices of lien or similar instruments in any jurisdiction, take possession of or 

control over, or otherwise confirm perfection of the liens and security interests granted to it 

hereunder, such liens and security interests shall be deemed valid, perfected, allowed, enforceable, 

non-avoidable and not subject to challenge, dispute, or subordination immediately upon entry of 

this Interim DIP Order. A certified copy of this Interim Order may, in the discretion of the DIP 

Lender or the Prepetition Lender, as the case may be, be filed with any filing or recording office 

or with any registry of deeds or similar office, and accordingly, each officer is authorized to accept 

such certified copy of this Interim Order for filing and recording. 

12. Evidence of Liens. The Debtors shall execute and deliver promptly to the DIP 

Lender all such financing statements, mortgages, control agreements, notices, and other documents 

as the DIP Lender may reasonably request to evidence, confirm, validate, or perfect the DIP Liens. 

13. Enforceability of DIP Obligations. Subject to entry of the Final DIP Order, if any 

or all of the provisions of this Interim DIP Order are hereafter reversed, modified, vacated, or 

stayed, such reversal, stay, modification, or vacatur shall not affect (a) the validity, priority, or 

enforceability of any DIP Liens or DIP Obligations incurred prior to the effective date of such 

reversal, stay, modification, or vacatur or (b) the validity, priority, or enforceability of the DIP 

Liens. Notwithstanding any such reversal, stay, modification, or vacatur, any use of cash and any 

DIP Obligations incurred by the Debtors to the DIP Lender prior to the effective date of such 

reversal, stay, modification, or vacatur shall be governed in all respects by the original provisions 

of this Interim DIP Order, and the DIP Lender shall be entitled to all of the rights, remedies, 

privileges, and benefits granted in Bankruptcy Code section 364(e), this Interim DIP Order, and 

the DIP Loan Documents. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 27 of 114
25 

4861-1202-7294 

14. Survival of Rights Granted Herein. Except as expressly provided in this Interim 

DIP Order or in the DIP Loan Documents, the Carve Out, the DIP Liens, the DIP Superpriority 

Claims, and all other rights and remedies of the DIP Lender granted by this Interim DIP Order and 

the DIP Loan Documents shall survive, and shall not be modified, impaired, or discharged by (a) 

the entry of an order converting any of the Chapter 11 Cases to a case under chapter 7 of the 

Bankruptcy Code or dismissing any of the Chapter 11 Cases, or (b) the entry of a confirmation 

order and, pursuant to Bankruptcy Code section 1141(d)(4), the Debtors’ waiver of discharge as 

to any remaining DIP Obligations. The terms and provisions of this Interim DIP Order and the 

DIP Loan Documents shall continue in these Chapter 11 Cases and in any Successor Cases, and 

the DIP Liens, the DIP Obligations, the Carve Out, the DIP Superpriority Claims and the other 

administrative claims granted pursuant to this Interim DIP Order, and all other rights and remedies 

of the DIP Lender granted by this Interim DIP Order and the DIP Loan Documents shall continue 

in full force and effect until all DIP Obligations are indefeasibly paid in full in cash or receive 

other treatment as agreed to by the DIP Lender in its sole discretion. 

15. After-Acquired Property. Except as otherwise provided in this Interim DIP Order, 

pursuant to Bankruptcy Code section 552(a), all property acquired by the Debtors on or after the 

Petition Date is not, and shall not be, subject to any lien of any person or entity resulting from any 

security agreement entered into by the Debtors prior to the Petition Date, including, without 

limitation, in respect of the Prepetition Loan Documents (other than with respect to the Adequate 

Protection Liens), except to the extent that such property constitutes proceeds of property of the 

Debtors that is subject to a valid, binding, enforceable, perfected, and unavoidable lien as of the 

Petition Date which is not subject to recharacterization or subordination under the Bankruptcy 

Code, other provisions or principles of applicable law. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 28 of 114
26 

4861-1202-7294 

16. Protection of the Rights of the DIP Lender. Unless the DIP Lender has provided 

its prior written consent, or all DIP Obligations have been indefeasibly paid in full in cash, there 

shall not be entered in any of these Chapter 11 Cases or any Successor Cases any order (including 

any confirmation order) that authorizes any of the following: (a) the obtaining of credit or the 

incurring of indebtedness that is secured by a security, mortgage, or collateral interest or other lien 

on all or any portion of the DIP Collateral and/or that is entitled to administrative priority status, 

in each case that is superior to or pari passu with the DIP Liens, the DIP Obligations, and the DIP 

Superpriority Claims, except as expressly set forth in this Interim DIP Order; (b) the use of cash 

for any purpose other than as permitted in the Approved Budget, DIP Loan Documents, and this 

Interim DIP Order; (c) the return of goods pursuant to Bankruptcy Code section 546(h) (or other 

return of goods on account of any prepetition indebtedness) to any creditor of any Debtor or any 

creditor’s taking any setoff against any of its prepetition indebtedness based upon any such return 

of goods pursuant to Bankruptcy Code section 553 or otherwise; or (d) any modification of any of 

the DIP Lender’s rights under this Interim DIP Order, the DIP Loan Documents with respect to 

any DIP Obligations. 

17. Proceeds of Subsequent Financing. If the Debtors, any trustee, any examiner with 

enlarged powers, any responsible officer, or any other estate representative subsequently appointed 

in the Chapter 11 Cases or any Successor Case, shall obtain credit or incur debt other than the 

credit or debt provided pursuant to the DIP Loan Documents at any time prior to the repayment in 

full of all DIP Obligations, including subsequent to the entry of a confirmation order with respect 

to the Debtors and the Debtors’ Estates, then all cash proceeds derived from such credit or debt 

shall immediately be turned over to the DIP Lender until indefeasible payment in full of the DIP 

Obligations in existence at such time in accordance with the DIP Loan Documents. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 29 of 114
27 

4861-1202-7294 

18. Maturity Date. All DIP Obligations will be due and payable in full in cash unless 

otherwise agreed to by the DIP Lender in writing on the earliest of the following (the “Maturity 

Date”): (i) July 31, 2024, (ii) if the Final DIP Order has not been entered, thirty-five days after the 

Petition Date, (iii) the acceleration of the DIP Loan and the termination of the DIP Commitments 

upon the occurrence of an Event of Default (defined below), (iv) the effective date of any plan of 

reorganization, (v) the date the Court converts any of the Chapter 11 Cases to a case under chapter 

7 of the Bankruptcy Code, (vi) the date the Court dismisses any of the Chapter 11 Cases, (vii) the 

consummation of the sale of all or substantially all of the Debtors’ assets and (viii) the date an 

order is entered in any of the Chapter 11 Cases appointing a chapter 11 trustee or examiner with 

enlarged powers (any such date, the “DIP Termination Date”). Principal of, and accrued interest 

on, the DIP Loan and all other amounts owing to the DIP Lender under the DIP Facility shall be 

payable on the DIP Termination Date. 

19. Case Milestones. The Debtors and the DIP Lender have agreed on the following 

milestones for these Chapter 11 Cases (the “Milestones” and each, a “Milestone”): 

 No later than seven (7) days after filing the Motion, the Court shall have 

entered the Interim DIP Order. 

 No later than fourteen (14) days after the Petition Date, the Debtors shall 

file with the Court a motion (the “Bid Procedures Motion”) to approve procedures 

for the marketing and sale of the Debtors’ assets (the “Bid Procedures Motion”) in 

form and substance reasonably acceptable to the DIP Lender. 

 No later than twenty-one (21) days after the Bid Procedures Motion is filed, 

the Bankruptcy Court shall have entered an order approving the same (the “Bid 

Procedures Order”). The Bid Procedures Order and applicable bid procedures shall, 

consistent with the DIP Term Sheet, authorize and approve the DIP Lender’s credit 

bid of the DIP Obligations, in whole or in part, pursuant to section 363(k) of the 

Bankruptcy Code, for any or all of the Debtors’ assets; 

 Not later than 30 days after entry of the Bid Procedures Order, the Court 

shall have entered an order approving one or more sales of the Debtors’ assets 

(“Sale Order”); and 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 30 of 114
28 

4861-1202-7294 

 No later than thirty-five days after the Petition Date, the Court shall have 

entered the Final DIP Order. 

20. Events of Default. Subject to any applicable cure or any notice period set forth 

below, if any, the Debtors’ right to use proceeds of the DIP Facility shall terminate without prior 

order of this Court or any further action by the DIP Lender, unless waived by the DIP Lender in 

writing and in accordance with the terms of the DIP Loan Documents, on the earliest to occur of 

(each, an “Event of Default”): 

 failure to make payments when due under the DIP Loan Documents; 

 invalidity of the DIP Loan Documents; 

 any of the Debtors shall file a pleading seeking to vacate or modify the 

Interim DIP Order or the Final DIP Order over the objection of the DIP Lender; 

 entry of an order without the prior written consent of the DIP Lender 

amending, supplementing or otherwise modifying the Interim DIP Order or the 

Final DIP Order; 

 reversal, vacatur or stay of the effectiveness of the Interim DIP Order or the 

Final DIP Order except to the extent reversed within five (5) Business Days; 

 any violation of any material term of the Interim DIP Order or the Final DIP 

Order by the Debtors; 

 dismissal of the Chapter 11 Case of a Debtor with material assets or 

conversion of the Chapter 11 Case of a Debtor with material assets to a case under 

Chapter 7 of the Bankruptcy Code, or any Debtor shall file a motion or other 

pleading seeking such dismissal or conversion of any of the Chapter 11 Cases; 

 appointment of a chapter 11 trustee or examiner with enlarged powers, or 

any Debtor shall file a motion or other pleading seeking such appointment, 

provided that in such event, the Debtor’s right to use proceeds of the DIP Facility 

shall continue uninterrupted until the earlier of (i) such chapter 11 trustee's 

procurement of replacement financing, or (ii) thirty (30) days from such chapter 

11 trustee’s appointment; 

 any sale of all or substantially all assets of the Debtors pursuant to section 

363 of the Bankruptcy Code, unless such sale is conducted in accordance with the 

Bid Procedures Order; 

 failure to meet a Milestone, unless extended or waived by the prior written 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 31 of 114
29 

4861-1202-7294 

consent of the DIP Lender with a notice of the same to be filed on the Docket of 

the Chapter 11 Cases within three (3) days of the DIP Lender’s waiver, consent or 

extension; 

 the Debtors’ filing of (or supporting another party in the filing of) a motion 

seeking entry of, or the entry of an order by the Court, granting any superpriority 

claim or lien (except as contemplated herein) which is senior to or pari passu with 

the DIP Claims; 

 an order shall be entered in any of the Chapter 11 Cases, without the prior 

written consent of the DIP Lender: (i) permitting any administrative expense or 

any claim (now existing or hereafter arising of any kind or nature whatsoever) to 

have priority equal or superior to the DIP Claims (other than the Carve Out) or (ii) 

granting or permitting the grant of a lien that is equal in priority or senior to the 

DIP Liens (other than the Carve Out); 

 two or more members of the Debtors’ Executive Management Team resign 

or otherwise terminate their employment relationship with the Debtor. The term 

“Executive Management Team” shall be defined in the DIP Facility Documents 

as including the C-Suite executives and such other key employees as the Debtor 

may expressly identify; 

 the Debtors’ filing of a motion seeking entry of an order approving any key 

employee incentive plan, employee retention plan, or comparable plan, without 

the prior written consent of the DIP Lender; 

 cessation of the DIP Liens or the DIP Claims to be valid, perfected and 

enforceable in all respects; 

 Permitted Variances under the Budget are exceeded for any period of time 

without consent of or waiver by the DIP Lender; 

 subject to entry of the Final DIP Order, the allowance of any claim or claims 

under section 506(c) of the Bankruptcy Code or otherwise against any DIP Lender; 

 an order shall have been entered by the Court prohibiting, limiting or 

restricting the right of the DIP Lender to credit bid for any or all of the Debtors’ 

assets; and 

 the payment of any prepetition claim other than (i) as consented to by the 

DIP Lender, (ii) as authorized by the Approved Budget, (iii) permitted under the 

terms of the DIP Credit Agreement or (iv) as authorized by an order entered by the 

Court, including the Interim DIP Order or the Final DIP Order and reflected in the 

Approved Budget. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 32 of 114
30 

4861-1202-7294 

21. Rights and Remedies Upon Event of Default. Upon the occurrence and during the 

continuance of an Event of Default, the DIP Lender shall, by written notice to the Debtors, its 

counsel, the U.S. Trustee and counsel for the Committee, terminate the DIP Facility, declare the 

obligations in respect thereof to be immediately due and payable and, subject to the immediately 

following paragraph, exercise all rights and remedies under the DIP Loan Documents, the Interim 

DIP Order, and the Final DIP Order. Without further order from the Bankruptcy Court, and subject 

to the terms of the Interim DIP Order and the Final DIP Order (including in respect of any required 

notices), the automatic stay provisions of section 362 of the Bankruptcy Code shall be vacated and 

modified to the extent necessary to permit the DIP Lender to exercise, upon the occurrence and 

during the continuance of any Event of Default under their respective DIP Loan Documents, all 

rights and remedies provided for in the DIP Loan Documents, and to take any or all of the 

following actions without further order of or application to the Bankruptcy Court (as applicable): 

(a) immediately terminate the Debtors’ limited use of any cash collateral; (b) cease making any 

DIP Loan under the DIP Facility to the Debtors; (c) declare all DIP Obligations to be immediately 

due and payable; (d) freeze monies or balances in the Debtors’ accounts (and, with respect to the 

DIP Credit Agreement and the DIP Facility, sweep all funds contained in the Controlled 

Accounts); (e) immediately set-off any and all amounts in accounts maintained by the Debtors 

with the DIP Lender against the DIP Obligations, or otherwise enforce any and all rights against 

the DIP Collateral in the possession of any of the applicable DIP Lender, including, without 

limitation, disposition of the DIP Collateral solely for application towards the DIP Obligations; 

and (f) take any other actions or exercise any other rights or remedies permitted under the Interim 

DIP Order and the Final DIP Order, the DIP Loan Documents or applicable law to effect the 

repayment of the DIP Obligations; provided, however, that the DIP Lender must provide the 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 33 of 114
31 

4861-1202-7294 

Debtors, the U.S. Trustee and the Committee with five (5) calendar days’ written notice (which 

may be by email) and file such notice on the Docket of the Chapter 11 Cases before exercising any 

enforcement rights or remedies; provided, further, that neither the Debtors, the Committee nor any 

other party-in-interest shall have the right to contest the enforcement of the remedies set forth in 

the Interim DIP Order and the Final DIP Order and the DIP Loan Documents, other than to argue 

that an Event of Default and/or a DIP Termination Date has not occurred. Further, the Debtors are 

deemed to waive any right, without the prior written consent of the DIP Lender, to seek relief 

under the Bankruptcy Code, including under section 105 thereof, to the extent such relief would 

restrict or impair the rights and remedies of the DIP Lender set forth in the Interim DIP Order and 

the Final DIP Order and in the DIP Loan Documents. 

22. Financial Reporting. 

a. Permitted Variance. The term “Permitted Variances” will mean, for the first 

full week period after the Closing Date, to be tested on the third business day of each week 

following the end of such week period (the “Initial Testing Period”) and for the Applicable Rolling 

Period (as defined below) after the Initial Testing Period (each such period after the Initial Testing 

Period, together with the Initial Testing Period, the “Testing Periods”): (i) all favorable variances, 

and (ii) an unfavorable variance of no more than 10% for actual operating disbursements (on an 

aggregate basis), in each case as compared to the budgeted disbursements, respectively, set forth 

in the Budget with respect to the applicable Testing Period; notwithstanding the foregoing, 

Professional Fees shall be excluded from the determination of Permitted Variances. The Permitted 

Variances with respect to each Testing Period shall be determined and reported to the DIP Lender 

not later than 5:00 p.m. Central Time on the third business day of each week immediately following 

the end of each such Testing Period. Additional variances, if any, from the Budget, and any 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 34 of 114
32 

4861-1202-7294 

proposed changes to the Budget, shall be subject to the approval of the DIP Lender. Variances 

will be reported on a cumulative basis matching the relevant Applicable Rolling Period in a format 

replicating the Budget and will include explanation of variances (including whether they are 

permanent or temporal in nature). Variances will be carried over across Applicable Rolling 

Periods solely to the extent they are permanent in nature. “Applicable Rolling Period” means, (i) 

for the Initial Testing Period, the most recently completed calendar week, (ii) for the second 

Testing Period after the Closing Date, the most recently completed two calendar weeks, (iii) for 

the third Testing Period after the Closing Date, the most recently completed three calendar weeks 

and (iv) for each Testing Period thereafter, the most recently completed four calendar weeks. 

b. Other Reporting. The Debtors shall provide to the DIP Lender (hereinafter 

the “Financial Reporting Requirements”): (i) following delivery of the Approved Budget on the 

Closing Date, by not later than 5:00 p.m. Eastern Time on the third business day of the second full 

week following the Closing Date and by not later than 5:00 p.m. Eastern Time on the third business 

day of every other week thereafter following the end of each Testing Period, an updated Budget, 

in each case, in form and substance reasonably satisfactory to the DIP Lender for the subsequent 

13 week period consistent with the form of the Budget, and such updated Budget shall become the 

“Budget” for the purposes of the DIP Facility upon the DIP Lender’s acknowledgement that the 

proposed updated Budget is substantially in the form of the Budget and in substance satisfactory 

to the DIP Lender (provided, that, until a new Budget has been approved by the DIP Lender, the 

most recently approved Budget shall govern); and (ii) beginning on the third business day of the 

first full week following the Closing Date (by not later than 5:00 p.m. Eastern Time), and on the 

third business day of each week thereafter following the end of each Testing Period (by not later 

than 5:00 p.m. Eastern Time), a variance report (the “Variance Report”) setting forth actual cash 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 35 of 114
33 

4861-1202-7294 

receipts and disbursements and cash flows of the Debtors for the prior Testing Period and setting 

forth all the variances, on a line-item and aggregate basis, from the amount set forth for such period 

as compared to the applicable Budget delivered by the Debtors, in each case, on a weekly and 

cumulative rolling 4-week basis (and each such Variance Report shall include explanations for all 

material variances and shall be certified by the Chief Financial Officer of the Debtors). The 

Debtors will promptly provide notice to the DIP Lender of any Material Adverse Change. 

c. Meetings with DIP Lender. At the election of the DIP Lender, on each 

Monday (or, in the event that such day is not a business day then on the business day immediately 

following or on a day mutually agreed upon by the DIP Lender and the Borrower’s senior 

management and professionals) during the Chapter 11 Cases, the Debtors’ senior management and 

professionals shall host a telephonic meeting for the DIP Lender and their professionals at which 

the Debtors’ senior management and professionals shall provide an update to the DIP Lender (and 

make themselves available for questions) with respect to the financial and operating performance 

of the Debtors and their Estates, including, but not limited to, the Variance Report. 

23. Interim DIP Order Controls. This Interim DIP Order shall constitute this Court’s 

findings of fact and conclusions of law based upon the record of these Chapter 11 Cases at the 

Interim Hearing and shall, upon its entry by this Court, take effect and be fully enforceable as of 

the Petition Date. In the event of any inconsistency between the terms and conditions of the DIP 

Loan Documents or this Interim DIP Order, the provisions of this Interim DIP Order shall govern 

and control. 

24. Binding Effect of Interim DIP Order. Immediately upon entry by the Court 

(notwithstanding any applicable law or rule to the contrary), the terms and provisions of this 

Interim DIP Order, including the liens granted herein shall, effective as of the Petition Date, 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 36 of 114
34 

4861-1202-7294 

become valid and binding upon and inure to the benefit of the Debtors, the DIP Lender, the 

Committee, the U.S. Trustee, and all other parties in interest and their respective successors and 

assigns, including any trustee or other fiduciary hereafter appointed in these Chapter 11 Cases, any 

Successor Case, or upon dismissal of the Chapter 11 Cases or any Successor Case. 

25. Costs, Fees, and Expenses of the DIP Lender. 

a. DIP Lender Reimbursements. Subject to the provisions set forth herein, the 

Debtors are authorized to pay, when due and payable, the DIP Lender Reimbursements, including, 

without limitation, (i) (x) all reasonable and documented (in summary form) out-of-pocket fees, 

costs, disbursements and expenses of the DIP Lender (including, but limited in the case of counsel, 

to all reasonable and documented (in summary form) out-of-pocket fees, costs, disbursements and 

expenses of the DIP Lender’s counsels, and any successor counsel to each), in each case in 

connection with the negotiations, preparation, execution and delivery of the DIP Loan Documents 

and the funding of all DIP Loan under the DIP Facility, including, without limitation, all due 

diligence, transportation, computer, duplication, messenger, audit, insurance, appraisal, valuation 

and consultant costs and expenses, and all search, filing and recording fees, incurred or sustained 

by the DIP Lender and its counsel and professional advisors in connection with the DIP Facility, 

the DIP Loan Documents or the transactions contemplated thereby, the administration of the DIP 

Facility and any amendment or waiver of any provision of the DIP Loan Documents, and (ii) 

without duplication, all reasonable and documented (in summary form) out-of-pocket fees, costs, 

disbursements and expenses of the DIP Lender (including, but limited in the case of counsels, to 

all reasonable and documented (in summary form) out-of-pocket fees, costs, disbursements and 

expenses of outside counsels to the DIP Lender (and any successor counsel), and, to the extent 

necessary, one firm of local counsel engaged by the DIP Lender in each relevant jurisdiction, and 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 37 of 114
35 

4861-1202-7294 

any successor counsel to such primary counsel and local counsel, in each case in connection with 

(A) the enforcement of any rights and remedies under the DIP Loan Documents, (B) the Chapter 

11 Cases, including attendance at all hearings in respect of the Chapter 11 Cases; and (C) defending 

and prosecuting any actions or proceedings arising out of or relating to the DIP Obligations, the 

Liens securing the DIP Obligations, or any transaction related to or arising in connection with the 

DIP Credit Agreement or the other DIP Loan Documents. 

b. Process and Procedure. Payment of the DIP Lender Reimbursements shall 

not be subject to allowance by the Court but shall be subject to the following process. At the same 

time such remittance advices are delivered to the Debtors, the professionals for the DIP Lender 

shall deliver a copy of their respective remittance advices to counsel for the Committee and the 

U.S. Trustee. The remittance advices for such fees and expenses shall not be required to comply 

with any U.S. Trustee guidelines related to the payment of fees and expenses of retained estate 

professionals, may be in summary form only, and shall not be subject to application or allowance 

by the Court. Any objections raised by the Debtors, the Office of the U.S. Trustee or the Committee 

with respect to such remittance advices within five (5) calendar days of receipt thereof will be 

resolved by the Court (absent prior consensual resolution thereof). Pending such resolution, the 

undisputed portion of any such remittance advices shall be promptly paid by the Debtors. Except 

as otherwise ordered by the Court in the event an objection is timely filed, such fees and expenses 

shall not be subject to any setoff, defense, claim, counterclaim, or diminution of any type, kind, or 

nature whatsoever. 

26. Right to Credit Bid. Subject to Bankruptcy Code section 363(k) and the terms of 

the DIP Loan Documents and the Carve Out, the DIP Lender shall have the right to credit bid all 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 38 of 114
36 

4861-1202-7294 

or any portion of the DIP Obligations as part of any asset sale process, whether conducted pursuant 

to Bankruptcy Code sections 363 or 1129, or otherwise. 

27. Indemnification of DIP Lender. The DIP Lender shall have no liability to any third 

party and shall not be deemed to be in control of the operations of Debtors, or to be acting as a 

“responsible person” or managing agent with respect to the operation or management of the 

Debtors. The Debtors shall indemnify and hold harmless the DIP Lender and their respective 

affiliates and officers, directors, employees, agents, and advisors to the extent set forth in the DIP 

Term Sheet; provided that any claim for indemnity under this paragraph must be brought before 

this Court for approval. For the avoidance of doubt, the DIP Lender shall not be indemnified for 

willful misconduct, gross negligence, or criminal acts. No indemnification shall be granted that 

violates applicable law in the Fifth Circuit. 

28. Good Faith Under Section 364(e). The DIP Lender has acted in good faith in 

connection with the DIP Loan Documents, including this Interim DIP Order, and is entitled to rely 

upon the protections granted herein and by section 364(e) of the Bankruptcy Code. 

29. Interim Compensation Procedures. The DIP Lender hereby consents to entry of an 

order, to be entered contemporaneously with, or after the entry of, this Interim DIP Order, in a 

form reasonably acceptable to the DIP Lender. 

30. Rights Preserved. Other than as expressly set forth in this Interim DIP Order, any 

other rights, claims, or privileges (whether legal, equitable, or otherwise) of the DIP Lender and 

the Prepetition Lenders are preserved. 

31. No Waiver by Failure to Seek Relief. The failure or delay of the DIP Lender to seek 

relief or otherwise exercise its respective rights and remedies under this Interim DIP Order, the 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 39 of 114
37 

4861-1202-7294 

DIP Loan Documents, or applicable law, as the case may be, shall not constitute a waiver of any 

of the rights hereunder, thereunder, or otherwise of the DIP Lender. 

32. No Third Party Rights. Except as explicitly provided for herein, this Interim DIP 

Order does not create any rights for the benefit of any third party, creditor, equity holder, or any 

direct, indirect, or incidental beneficiary. 

33. Immediate Enforceability. This Interim DIP Order shall constitute findings of fact 

and conclusions of law pursuant to Bankruptcy Rule 7052 and shall take effect and be fully 

enforceable as of the Petition Date immediately upon execution hereof. Notwithstanding 

Bankruptcy Rules 4001(a)(3), 6004(h), 6006(d), 7062, or 9024 or any other Bankruptcy Rule, or 

Rule 62(a) of the Federal Rules of Civil Procedure, this Interim DIP Order shall be immediately 

effective and enforceable upon its entry and there shall be no stay of execution or effectiveness of 

this Interim DIP Order. Good cause has been shown for immediate entry of this Interim Order 

pursuant to Bankruptcy Rules 4001(b)(2) and (c)(2). 

34. Retention of Jurisdiction. The Court retains jurisdiction to enforce this Interim DIP 

Order according to its terms to the fullest extent permitted by applicable law. 

35. Final Hearing. The Final Hearing to consider entry of the Final DIP Order is 

scheduled for February 15, 2024 at 9:30 a.m. (CT) before the Honorable Michelle V. Larson, 

United States Bankruptcy Judge, at the United States Bankruptcy Court for the Northern District 

of Texas, Dallas Division, Earle Cabell Federal Building, 1100 Commerce St., Courtroom #2, 

Dallas, TX 75242-1496. 

36. Notice of Final Hearing. Within three (3) Business Days of the date of the entry of 

this Interim DIP Order, the Debtors shall serve a copy of the Motion and this Interim DIP Order 

upon: (a) the U.S. Trustee; (b) the Internal Revenue Service; (c) the parties included on the 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 40 of 114
38 

4861-1202-7294 

Debtors’ consolidated list of thirty (30) largest unsecured creditors; (d) counsel to the DIP Lender; 

(e) counsel to the Prepetition Lenders; (f) financial institutions where the Debtors hold bank 

accounts; and (g) any party that has filed prior to such date a request for notices under Bankruptcy 

Rule 2002 with the Court. 

37. Objection Deadline. Objections, if any, to the relief sought in the Motion and entry 

of the Final DIP Order shall be in writing, shall set forth with particularity the grounds for such 

objections or other statement of position, shall be filed with the Clerk of the Court, and personally 

served upon: (a) proposed counsel to the Debtors; (b) the U.S. Trustee; (c) proposed counsel to 

any Committee; and (d) counsel to the DIP Lender so that such objections are filed with the Court 

and received by said parties on or before 4:00 p.m. (CT) on February __, 2024. 

# # # END OF ORDER # # # 

Submitted by: 

Jason S. Brookner (TX Bar No. 24033684) 

Amber M. Carson (TX Bar No. 24075610) 

Emily F. Shanks (TX Bar No. 24110350) 

GRAY REED 

1601 Elm Street, Suite 4600 

Dallas, Texas 75201

Telephone: (214) 954-4135 

Facsimile: (214) 953-1332 

Email: jbrookner@grayreed.com 

 acarson@grayreed.com 

 eshanks@ grayreed.com 

 

Proposed Counsel to the Debtors 

and Debtors in Possession 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 41 of 114
4861-1202-7294 

Exhibit 1 

Dip Term Sheet 

 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 42 of 114
278261410 v5 

4873-0781-6093 

EYE CARE LEADERS HOLDINGS, LLC. 

SUPERPRIORITY SECURED 

DEBTOR-IN-POSSESSION CREDIT FACILITY TERM SHEET 

Summary of Proposed Terms and Conditions 

This Summary of Terms and Conditions (this “DIP Term Sheet”) outlines certain terms of the DIP Facility 

(as defined herein) to be provided by the DIP Lender (as defined herein) subject to the conditions herein 

and as set forth more fully below and subject to such definitive documentation as the parties may agree to 

(collectively, and as defined further herein, the “DIP Facility Documents”). The Loan Parties are not 

authorized to disclose the terms contained herein to any person other than their professional advisors, who 

shall agree to maintain its confidentiality; provided, however, that the Loan Parties may, following 

agreement on definitive terms, disclose such terms in any pleading required to be filed in the Bankruptcy 

Court. 

Borrower: Eye Care Leaders Portfolio Holdings, LLC, a North Carolina limited liability 

company (“ECL Holdings”), and its affiliated chapter 11 debtors (collectively, the 

“ECL Debtors,” each a “Borrower” and together the “Borrowers” or “you”), each in 

their capacity as a debtor and debtor in possession (each individually a “Loan Party” 

and a “Debtor”, and collectively, the “Loan Parties” and the “Debtors”), in Jointly 

Administered Case No. 24-80001, captioned In re Eye Care Leaders Portfolio 

Holdings, LLC, et al. (collectively the “Chapter 11 Cases”), pending in the United 

States Bankruptcy Court for the Northern District of Texas, Dallas Division (the 

“Bankruptcy Court”).1

 

 

DIP Lender: Create Capital, LLC, a Delaware limited liability company will, either directly or 

through one or more U.S. affiliates (collectively, the “DIP Lender”), provide the 

funds for the DIP Facility (as defined below) and provide the DIP Commitments (as 

defined herein). 

Type and 

Amount of the 

DIP Facility:

Subject to the terms and conditions herein, the DIP Lender shall provide a secured 

superpriority priming debtor in possession non-amortizing facility (the “DIP 

Facility”) comprised of a term loan in the principal amount of $8.0 million, of which 

(i) $1.3 million (the “Interim Funding”) will be available upon entry of an interim 

order by the Bankruptcy Court, in a form acceptable to the DIP Lender in all 

respects, approving the terms and conditions of the DIP Facility (the “Interim DIP 

1

 The Debtors in the Chapter 11 Cases and the last four digits of each Debtors’ federal tax identification number are 

as follows: ECL PH Services Group LLC (6746); Eye Care Leaders Portfolio Holdings, LLC (0576); Alta Billing 

Holdings, LLC (4944); Alta Billing, LLC (4823); Canta Health, LLC (7791); DJRTC, LLC (N/A); ECL Group, LLC 

(9195); ECL Holdings, LLC (8888); Eye Care Leaders Holdings, LLC (1701); iMedicWare, Inc. (6251); IMW EMR, 

LLC (6421); IMW Holdings, LLC (3980); Insight Software, LLC (8321); Integrity EMR Holdings, LLC (3877); 

Integrity EMR, LLC (3716); IO Practiceware, Inc. (4507); IOPW Holdings, LLC (0461); IOPW, LLC (N/A); Keymed 

Holdings, LLC (0301); Keymed, LLC (9379); MD Office, LLC (9075); MDO Group Holdings, LLC (0435); MDX, 

LLC (5074); Medflow Holdings, LLC (7716); Medflow, Inc. (N/A); MNI Holdings, LLC (7633); MRX Holdings, 

LLC (N/A); My Vision Express, Inc. (N/A); Penn Medical Informatics Systems, LLC (4584); PI Software Holdings, 

LLC (N/A); PI Software, LLC (N/A); PMX, LLC (N/A); Revenue Health Solutions, LLC (7025); RHS Holdings, 

LLC (N/A); The Hoehne Group – Software Division, Inc. (7788). The Debtors’ principal offices are located at 555 

S. Mangum Street, Suite 100, Durham, NC 27701 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 43 of 114
278261410 

2 

4873-0781-6093 

Order”) and (ii) the remaining $6.7 million will be available upon entry of a final 

order by the Bankruptcy Court, in a form acceptable to the DIP Lender in all 

respects, approving the DIP Facility on a final basis (the “Final DIP Order” and 

together with the Interim DIP Order the “DIP Orders”). The DIP Lender’s 

commitments under the DIP Facility are referred to as the “DIP Commitments”; the 

loan under the DIP Facility is referred to as the “DIP Loan”; the DIP Lender’s claim 

under the DIP Facility is referred to as the “DIP Claim” or “DIP Claims”; and 

proceeds received by the Borrowers from the DIP Loan are referred to as the “DIP 

Proceeds”. 

Following the Closing Date (as defined below) and conditioned upon entry of the 

Interim DIP Order or the Final DIP Order, as appropriate, DIP Loan funds may be 

drawn by the Debtors in multiple draws (in a manner consistent with the “use of 

proceeds” set forth below); provided that the total amount of all draws incurred 

before entry of the Final DIP Order shall not exceed $1.3 million. 

Once repaid, DIP Proceeds cannot be reborrowed. 

Credit Bidding: The DIP Orders and the related DIP Facility Documents shall provide that, in 

connection with any sale of any of the Debtors’ assets under section 363 of the 

Bankruptcy Code or under a plan of reorganization, the DIP Lender shall have the 

right to credit bid all amounts then-outstanding under the DIP Facility (including 

any accrued interest and fees) in accordance with Section 363(k) of the Bankruptcy 

Code. 

Closing Date: The date of the satisfaction or waiver by the DIP Lender of the relevant “Conditions 

Precedent to Borrowing DIP Loan” set forth below (the “Closing Date”). 

Maturity: All DIP Obligations (as defined herein) will be due and payable in full in cash unless 

otherwise agreed to by the DIP Lender in writing on the earliest of: (i) July 31, 2024, 

(ii) if the Final DIP Order has not been entered, thirty-five days after the Petition 

Date, (iii) the acceleration of the DIP Loan and the termination of the DIP 

Commitments upon the occurrence of an event referred to below under 

“Termination”, (iv) the effective date of any plan of reorganization, (v) the date the 

Bankruptcy Court converts any of the Chapter 11 Cases to a case under chapter 7 of 

the Bankruptcy Code, (vi) the date the Bankruptcy Court dismisses any of the 

Chapter 11 Cases, (vii) the consummation of the sale of all or substantially all of the 

Borrowers’ assets and (viii) the date an order is entered in any Bankruptcy Case 

appointing a Chapter 11 trustee or examiner with enlarged powers (any such date, 

the “DIP Termination Date”). Principal of, and accrued interest on, the DIP Loan 

and all other amounts owing to the DIP Lender under the DIP Facility shall be 

payable on the DIP Termination Date (the “Repaid Amount”). 

Budget: The “Budget” shall consist of a standard 13-week operating budget setting forth all 

forecasted receipts and disbursements on a weekly basis for such 13-week period 

beginning as of the week of the Petition Date, on a line item basis, including, among 

other things, expected draws under the DIP Facility, available cash, trade payables 

and ordinary course expenses, fees and expenses relating to the DIP Facility, fees 

and expenses related to the Chapter 11 Case (including US Trustee fees and 

professional fees), which Budget shall be in form and substance satisfactory to and 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 44 of 114
278261410 

3 

4873-0781-6093 

approved by the DIP Lender (such Budget shall be supplemented in the manner 

required pursuant to the “Financial Reporting Requirements” section below). 

Use of Proceeds: The DIP Loan shall be used solely in accordance with the Budget (including 

Permitted Variances (as defined below)) and the terms and conditions of the DIP 

Credit Agreement, and the DIP Orders, including (but subject to the Budget) to (i) 

provide working capital and for other general corporate purposes of the Debtors, (ii) 

fund the costs of the administration of the Chapter 11 Case (including US Trustee 

fees and professional fees and expenses) and the section 363 sale process, and (iii) 

fund interest, fees, and other payments contemplated in respect of the DIP Facility. 

The DIP Loan shall be funded in periodic installments, not more frequently than 

weekly, in amounts designed to coincide with the approved Budget and cash flow 

requirements forecasted therein. For the avoidance of doubt, the Borrowers 

understand and agree a permitted use shall be to pay the DIP Lender’s reasonable 

costs. fees and expenses relating to the DIP Loan, which shall be paid as set forth in 

the DIP Facility Documents and the DIP Orders, 

Documentation: While the DIP Facility initially will be defined pursuant to the terms of this DIP 

Term Sheet and the Interim DIP Order, the DIP Facility will be evidenced by a credit 

agreement (the “DIP Credit Agreement”), which shall be filed with the Bankruptcy 

Court and approved in final form in the Final DIP Order. The DIP Credit Agreement 

shall be in a form and substance satisfactory to the DIP Lender, and shall reflect the 

terms set forth in this DIP Term Sheet and the nature of the DIP Facility as a debtor 

in possession facility. The parties shall also execute such other ancillary documents 

as the DIP Lender may require (such ancillary documents, collectively with the DIP 

Credit Agreement, the “DIP Facility Documents”). The DIP Facility Documents 

shall be in a form and substance satisfactory to the DIP Lender. 

Controlled 

Accounts: 

The Debtors shall maintain all existing deposit accounts (other than excluded 

accounts to be agreed) and each such deposit account shall remain or become subject 

to a perfected lien and control pursuant to the terms of the DIP Orders or, as may be 

requested by the DIP Lender, an enforceable control agreement in favor of the DIP 

Lender (any such account, a “Controlled Account”). The DIP Credit Agreement, 

and the DIP Orders (as applicable) shall require the Debtors to maintain the DIP 

Proceeds in the Controlled Accounts except as permitted to be used in accordance 

with the Budget and shall prohibit the Debtors from withdrawing funds from the 

Controlled Accounts after the occurrence and during the continuance of an Event of 

Default under the DIP Credit Agreement; provided, however, that the Debtors shall 

be permitted to fund the Carve-Out and pay ordinary course administrative claims 

up to $200,000 in accordance with the terms of the Budget after an Event of Default. 

Interest: The DIP Loan will bear interest at a fixed rate per annum equal to 15%, accruing 

monthly, payable in arrears and payable in kind. 

Interest shall be calculated on the basis of the actual number of days elapsed in a 

360-day year. 

Default Interest: Upon the occurrence of and during the continuance of an Event of Default under the 

DIP Credit Agreement, the DIP Loan and all DIP Obligations shall bear interest at 

an additional 2.00% per annum. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 45 of 114
278261410 

4 

4873-0781-6093 

Fees: An origination fee of $300,000 (the “Origination Fee”), which shall be earned and 

payable upon entry of the Interim DIP Order, and payable by the Debtors to the DIP 

Lender immediately upon the delivery of the Interim Funding after the Closing Date. 

For the avoidance of doubt, the payment of the fee will be in the form of an offset 

to the Interim Funding amount such that the DIP Lender will retain $300,000 of the 

$1,300,000 of Interim Funding in satisfaction of the obligation. 

A closing fee equal to $200,000 (the “Closing Fee”), which shall be earned upon 

entry of the Interim DIP Order, and payable upon the earlier of (i) the DIP 

Termination Date, or (ii) the closing of a sale following entry of a Sale Order (as 

defined below); provided, however, that no Closing Fee shall be payable if the DIP 

Lender is the successful bidder for the Debtors’ assets. 

 Voluntary 

Prepayments: 

All or any portion of the DIP Loan may be voluntarily repaid at any time, without 

premium or penalty. 

 

Priority and 

Security under 

DIP Facility: 

All obligations of the Borrowers to the DIP Lender under the DIP Facility, including, 

without limitation, all principal and accrued interest, premiums (if any), costs, fees 

and expenses or any other amounts due (collectively, the “DIP Obligations”), shall 

be secured by the following liens and security interests (the “DIP Liens”): 

(a) subject to the Carve Out, and subject to entry of the Final DIP Order, 

pursuant to section 364(d)(1) of the Bankruptcy Code, a first priority perfected 

senior priming lien on, and security interest in, substantially all of the assets of the 

Borrowers, wherever located, that may be subject to a validly perfected security 

interest in existence on the Petition Date;2

(b) subject to the Carve Out, pursuant to section 364(c)(2) of the Bankruptcy 

Code, a first priority perfected lien on, and security interest in, all present and after 

acquired property of the Debtors, wherever located, not subject to a lien or security 

interest on the date of commencement of the Chapter 11 Cases (collectively, the 

“Unencumbered Property”); 

(c) subject to the Carve Out, pursuant to section 364(c)(3) of the Bankruptcy 

Code, a junior perfected lien on, and security interest in, all present and afteracquired property of the Debtors, wherever located, that is subject to a Permitted 

Lien (as to be defined in the DIP Credit Agreement) on the Petition Date or subject 

to a Permitted Lien in existence on the Petition Date that is perfected subsequent 

thereto as permitted by section 546(b) of the Bankruptcy Code; and 

(d) subject to the Carve Out, a first priority perfected lien on, and security 

interest in, all funds on deposit in the Controlled Accounts. 

The property referred to in the preceding clauses (a) through (d) is collectively 

referred to as the “DIP Collateral” and shall include, without limitation, all assets 

(whether tangible, intangible, personal or mixed) of the Borrowers, whether now 

2

 For purposes of the Interim DIP Order only, the DIP Lender will receive a junior lien pursuant to 364(c)(3) of the 

Bankruptcy Code on the assets of Insight Software, LLC, Keymed, LLC, MD Office, LLC and MRX Holdings, LLC. 

If the DIP Lender is not afforded a senior priming lien on the assets of these entities as part of the Final DIP Order, 

the DIP Lender reserves the right to lower the DIP Commitment in its sole discretion. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 46 of 114
278261410 

5 

4873-0781-6093 

owned or hereafter acquired and wherever located, before or after the Petition Date, 

including, without limitation, all accounts, proceeds of leases, inventory, equipment, 

equity interests or capital stock in subsidiaries, investment property, instruments, 

chattel paper, real estate, leasehold interests, contracts, patents, copyrights, 

trademarks and other general intangibles, the proceeds of all claims or causes of 

action (including upon entry of the Final DIP Order, proceeds of avoidance actions 

under chapter 5 of the Bankruptcy Code) and all products, offspring, profits and 

proceeds thereof; provided however the DIP Lender shall only avail itself of 

proceeds from avoidance actions, on a “last look” basis, and only if all other 

Collateral is inadequate to indefeasibly repay the DIP Obligations in full. 

The DIP Liens shall be effective and perfected as of the entry of the Interim DIP 

Order (subject to the occurrence of the Closing Date) and without necessity of the 

execution, filing or recording of control agreements, financing statements or other 

agreements. However, the DIP Lender may, in its discretion, require the execution, 

filing or recording of any or all of the documents described in the preceding 

sentence. 

Notwithstanding the foregoing, the DIP Collateral shall not include (and the DIP 

Liens shall not extend to) assets scheduled and held by the Debtors in trust (but only 

for so long as such assets are held in trust). 

Superpriority 

DIP Claims: 

All DIP Claims shall be entitled to the benefits of section 364(c)(1) of the 

Bankruptcy Code, having superpriority over any and all administrative expenses of 

the kind that are specified in sections 105, 326, 328, 330, 331, 503(b), 506(c), 507(a), 

507(b), 546(c), 726, 1114 or any other provisions of the Bankruptcy Code, subject 

only to the Carve Out. 

The DIP Claims will, at all times during the period that the DIP Loan remains 

outstanding, remain, in right of payment, senior in priority to all other claims or 

administrative expenses, subject only to the Carve Out. 

Carve Out: “Carve Out” means an amount equal to the sum of the following (A) : (i) all fees 

required to be paid to the Clerk of the Bankruptcy Court and to the Office of the 

United States Trustee under 28 U.S.C. § 1930(a) plus interest pursuant to 31 U.S.C. 

§ 3717 (without regard to the notice set forth in clause (ii) below); (ii) to the extent 

allowed by the Bankruptcy Court at any time, whether by interim order, final order, 

or otherwise, all accrued and unpaid fees, disbursements, costs and expenses 

incurred by persons or firms retained by the Debtors pursuant to sections 327, 328 

or 363 of the Bankruptcy Code (the “Debtor Professionals”) and all accrued unpaid 

fees, disbursements, costs and expenses incurred by the Committee (if any) pursuant 

to sections 328 and 1103 of the Bankruptcy Code (the “Committee Professionals,” 

together with the Debtor Professionals, the “Estate Professionals,” and such Estate 

Professional fees in each case in accordance with the Budget, the “Allowed 

Professional Fees”) at any time before or on the first business day following delivery 

by the DIP Lender of a Carve Out Trigger Notice (as defined below), whether 

allowed by the Bankruptcy Court prior to or after delivery of a Carve Out Trigger 

Notice; and (iii) Allowed Professional Fees of Estate Professionals in an aggregate 

amount not to exceed $200,000 incurred after the first business day following 

delivery by the DIP Lender of a Carve Out Trigger Notice, to the extent allowed at 

any time, whether by interim order, final order, or otherwise (the amounts set forth 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 47 of 114
278261410 

6 

4873-0781-6093 

in this clause (iii), the “Post-Carve Out Trigger Notice Cap”); provided, however, 

nothing herein shall be construed to impair the ability of any party to object to any 

fees, expenses, reimbursement or compensation sought by any such professionals or 

any other person or entity. For purposes of the foregoing, “Carve Out Trigger 

Notice” shall mean a written notice (which may be delivered by e-mail (or other 

electronic means)) by the DIP Lender to the Debtors and their counsel, the United 

States Trustee, and lead counsel to any Committee appointed in the Chapter 11 

Cases, and filed on the docket of the Chapter 11 Cases, which notice may be 

delivered following the occurrence of an Event of Default, stating that the PostCarve Out Trigger Notice Cap has been invoked. 

On a weekly basis—to the extent there is sufficient cash on hand prior to entry of 

the Final DIP Order, and then following entry of the Final DIP Order—the fees of 

the Debtors’ and committee’s professionals provided for in the Budget shall be 

funded into one of the Debtors’ accounts at East West Bank to be used solely to 

satisfy Allowed Professional Fees in accordance with any applicable orders entered 

in the Chapter 11 Cases (the “Professional Fee Reserve”). The funds on deposit in 

the Professional Fee Reserve shall be available to satisfy the obligations owed to 

Estate Professionals, and the DIP Lender shall have a security interest on any 

residual amounts remaining in the Professional Fee Reserve after satisfaction in full 

of all Allowed Professional Fees. 

For the avoidance of doubt and notwithstanding anything to the contrary herein, the 

Carve Out shall be senior to all liens and claims securing the DIP Facility, and all 

other forms of adequate protection, liens, or claims securing the DIP Obligations. 

Conditions 

Precedent to 

Borrowing DIP 

Loan: 

The DIP Credit Agreement will contain the following conditions precedent to draws 

under the DIP Facility: 

 The DIP Lender shall have received a borrowing notice from the Borrowers at 

least one (1) business day prior to the requested date of funding. 

 No Default or Event of Default shall have occurred, and shall be continuing, 

under the DIP Loan Documents immediately prior to the funding of the DIP 

Loan or would result from such borrowing of the DIP Loan. 

 The making of the DIP Loan shall be authorized pursuant to the Interim DIP 

Order or the Final DIP Order, as applicable. 

 The entry of the Interim DIP Order or Final DIP Order, as the case may be, in 

form and substance consistent with the terms and conditions set forth herein and 

otherwise satisfactory to the DIP Lender in its sole discretion, which Interim 

DIP Order or Final DIP Order, as the case may be, shall be in full force and 

effect, shall provide DIP Lender with lien priming all other liens, shall not have 

been reversed, vacated or stayed and shall not have been amended, 

supplemented or otherwise modified without the prior written consent of the 

DIP Lender. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 48 of 114
278261410 

7 

4873-0781-6093 

 Other than the Known Events, since the Petition Date, there shall not have been 

a Material Adverse Change; provided that Known Events and Material Adverse 

Change shall be defined in the DIP Credit Agreement. 

 The Loan Parties shall be in compliance with (i) the Interim DIP Order or the 

Final DIP Order, as the case may be, and (ii) the Budget (subject to Permitted 

Variances). 

Affirmative and 

Negative 

Covenants:

The DIP Credit Agreement will contain customary affirmative and negative 

covenants, including without limitation, the following: 

 The Debtors shall deliver to the DIP Lender and its counsel for review and 

comment, as soon as commercially reasonable, and to the extent practicable, 

not less than three (3) Business Days prior to filing (or as soon thereafter as is 

reasonably practicable under the circumstances), all pleadings, motions and 

other documents material to the DIP Lender (provided that any of the 

foregoing relating to the DIP Facility shall be deemed material) to be filed by 

the Debtors with the Bankruptcy Court. 

 The Debtors shall promptly deliver to the DIP Lender copies of any offers, term 

sheets, proposals, presentations, bids or other documents, from any party, 

related to (i) the restructuring of the Debtors, or (ii) the sale of assets of one or 

more of the Debtors. Notwithstanding the foregoing, the Debtors are not 

required to provide copies of any offers term sheets, proposals, presentations, 

bids or other confidential information to the DIP Lender if the DIP Lender is 

either an active bidder, involved in the bidding process, or has expressed its 

intent to credit bid for the applicable assets. 

 The Debtors shall comply with applicable laws (including without limitation, 

the Bankruptcy Code, ERISA, environmental laws, OFAC, money laundering 

laws, PATRIOT Act and other anti-terrorism laws and anti-corruption laws), 

pay taxes, maintain all necessary licenses and permits and trade names, 

trademarks, patents, preserve corporate existence, maintain appropriate and 

adequate insurance coverage and permit the DIP Lender’s inspection of 

properties, books and records at reasonable times with reasonable advance 

notice. 

 The Debtors shall limit all transactions with their affiliates (other than ordinary 

course transactions consistent with past practice among or between any Debtors 

and their respective subsidiaries), including, without limitation, restrictions on 

payment of any management fees to non-Borrowers. Transfers to non-Debtors 

shall be prohibited unless previously approved by the DIP Lender in writing. 

 The Debtors shall maintain their existing cash management system, as requested 

in their first day motion to do so, modified as appropriate to comply with the 

DIP Orders. 

 The Debtors shall deliver the Budget, updated weekly (and calculated 

cumulatively for each 1-week Budget period) and adherence to the Budget, 

subject to Permitted Variances. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 49 of 114
278261410 

8 

4873-0781-6093 

 For purposes hereof, the term “Permitted Variances” will mean, for the first full 

week period after the Closing Date, to be tested on the third business day of each 

week following the end of such week period (the “Initial Testing Period”) and 

for the Applicable Rolling Period (as defined below) after the Initial Testing 

Period (each such period after the Initial Testing Period, together with the Initial 

Testing Period, the “Testing Periods”): (i) all favorable variances, and (ii) an 

unfavorable variance of no more than 10% for actual operating disbursements 

(on an aggregate basis), in each case as compared to the budgeted disbursements, 

respectively, set forth in the Budget with respect to the applicable Testing 

Period; notwithstanding the foregoing, Professional Fees shall be excluded from 

the determination of Permitted Variances. The Permitted Variances with respect 

to each Testing Period shall be determined and reported to the DIP Lender not 

later than 5:00 p.m. Central Time on the third business day of each week 

immediately following the end of each such Testing Period. Additional 

variances, if any, from the Budget, and any proposed changes to the Budget, 

shall be subject to the approval of the DIP Lender. Variances will be reported 

on a cumulative basis matching the relevant Applicable Rolling Period in a 

format replicating the Budget and will include explanation of variances 

(including whether they are permanent or temporal in nature). Variances will 

be carried over across Applicable Rolling Periods solely to the extent they are 

permanent in nature. “Applicable Rolling Period” means, (i) for the Initial 

Testing Period, the most recently completed calendar week, (ii) for the second 

Testing Period after the Closing Date, the most recently completed two calendar 

weeks, (iii) for the third Testing Period after the Closing Date, the most recently 

completed three calendar weeks and (iv) for each Testing Period thereafter, the 

most recently completed four calendar weeks. 

 Subject to the Budget, the Debtors shall not incur or assume any additional debt 

(including intercompany funding) or contingent obligations in respect of debt, 

give any guaranties in respect of debt, create any liens, charges or encumbrances 

or incur additional material lease obligations, in each case, beyond agreed upon 

limits; not merge or consolidate with any other person, change the nature of 

business or corporate structure or create or acquire new subsidiaries, in each 

case, beyond agreed upon limits; not amend its charter or by laws; not sell, lease 

or otherwise dispose of assets (including, without limitation, in connection with 

a sale leaseback transaction) outside the ordinary course of business and beyond 

agreed upon limits; not give a negative pledge on any assets in favor of any 

person other than the DIP Lender; and not permit to exist any consensual 

encumbrance on the ability of any subsidiary to pay dividends or other 

distributions to the Borrowers; in each case, subject to customary exceptions or 

baskets as may be agreed. 

 The Debtors shall not, without the DIP Lender’s prior written consent, which 

consent shall not be unreasonably withheld: (i) make, commit to make, or permit 

to be made any bonus payments (including retention and incentive bonuses) to 

any employees of the Debtors and their subsidiaries in excess of the amounts set 

forth in the Budget (on an aggregate basis); or (ii) terminate any member of the 

Executive Team (as defined in the DIP Facility Documents). 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 50 of 114
278261410 

9 

4873-0781-6093 

 The Debtors shall not permit any change in ownership or control of any Debtor 

or any change in accounting treatment or reporting practices, except as required 

by GAAP or as permitted or contemplated by the DIP Credit Agreement. 

 Without the prior written consent of the DIP Lender, the Debtors shall not make 

or permit to be made any change to the DIP Orders. 

 The Debtors shall not seek authorization to incur or permit the existence of any 

claims in the Chapter 11 Cases that are senior to or pari passu with the DIP 

Lender’s section 364(c)(1) claim, except for the Carve Out. 

 The Debtors shall comply with the Milestones (as defined herein). 

Financial 

Reporting 

Requirements: 

The Borrowers shall provide to the DIP Lender (hereinafter the “Financial Reporting 

Requirements”): (i) following delivery of the Budget on the Closing Date, by not 

later than 5:00 p.m. Eastern Time on the third business day of the second full week 

following the Closing Date and by not later than 5:00 p.m. Eastern Time on the third 

business day of every other week thereafter following the end of each Testing 

Period, an updated Budget, in each case, in form and substance reasonably 

satisfactory to the DIP Lender for the subsequent 13 week period consistent with the 

form of the Budget, and such updated Budget shall become the “Budget” for the 

purposes of the DIP Facility upon the DIP Lender’s acknowledgement that the 

proposed updated Budget is substantially in the form of the Budget and in substance 

satisfactory to the DIP Lender (provided, that, until a new Budget has been approved 

by the DIP Lender, the most recently approved Budget shall govern); and (ii) 

beginning on the third business day of the first full week following the Closing Date 

(by not later than 5:00 p.m. Eastern Time), and on the third business day of each 

week thereafter following the end of each Testing Period (by not later than 5:00 p.m. 

Eastern Time), a variance report (the “Variance Report”) setting forth actual cash 

receipts and disbursements and cash flows of the Debtors for the prior Testing Period 

and setting forth all the variances, on a line-item and aggregate basis, from the 

amount set forth for such period as compared to the applicable Budget delivered by 

the Debtors, in each case, on a weekly and cumulative rolling 4-week basis (and 

each such Variance Report shall include explanations for all material variances and 

shall be certified by the Chief Financial Officer of the Debtors). The Borrowers will 

promptly provide notice to the DIP Lender of any Material Adverse Change. 

All deliveries required pursuant to this section shall be subject to the confidentiality 

provision to be negotiated in the DIP Credit Agreement. 

At the election of the DIP Lender, on each Monday (or, in the event that such day is 

not a Business Day then on the Business Day immediately following or on a day 

mutually agreed upon by the DIP Lender and the Borrower’s senior management 

and professionals) during the Chapter 11 Cases, the Borrowers’ senior management 

and professionals shall host a telephonic meeting for the DIP Lender and their 

professionals at which the Borrower’s senior management and professionals shall 

provide an update to the DIP Lender (and make themselves available for questions) 

with respect to the financial and operating performance of the Loan Parties and their 

estates, including, but not limited to, the Variance Report. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 51 of 114
278261410 

10 

4873-0781-6093 

Other Reporting 

Requirements:

The DIP Credit Agreement will contain other customary reporting requirements for 

similar debtor in possession financings and other matters as determined by the DIP 

Lender in its reasonable discretion to be appropriate to the transactions contemplated 

herein, including, without limitation, with respect to material adverse events, events 

and notices under other material debt instruments, litigation, contingent liabilities, 

ERISA or environmental events and consistent with the Documentation Principles 

(collectively with the financial reporting information described above, 

the “Information”). 

Chapter 11 

Cases 

Milestones: 

The DIP Credit Agreement will include the following milestones related to the 

Debtors’ Chapter 11 Cases (the “Milestones”): 

 No later than seven (7) days after filing a motion to approve the DIP Facility, 

the Bankruptcy Court shall have entered the Interim DIP Order. 

 No later than fourteen (14) days after the Petition Date, the Debtors shall 

file with the Bankruptcy Court a motion (the “Bid Procedures Motion”) to 

approve procedures for the marketing and sale of the Debtors’ assets (the 

“Bid Procedures Motion”) in form and substance reasonably acceptable to 

the DIP Lender. 

 No later than twenty-one (21) days after the Bid Procedures Motion is filed, 

the Bankruptcy Court shall have entered an order approving the same (the 

“Bid Procedures Order”). The Bid Procedures Order and applicable bid 

procedures shall, consistent with this Term Sheet, authorize and approve the 

DIP Lender’s credit bid of the DIP Obligations, in whole or in part, pursuant 

to Section 363(k) of the Bankruptcy Code, for any or all of the Debtors’ 

assets; 

 Not later than 30 days after entry of the Bid Procedures Order, the 

Bankruptcy Court shall have entered an order approving one or more sales 

of the Debtors’ assets (“Sale Order”); and 

 No later than thirty-five days after the Petition Date, the Bankruptcy Court 

shall have entered the Final DIP Order. 

Events of 

Default: 

The DIP Credit Agreement will contain events of default customarily found in loan 

agreements for similar debtor in possession financings (each an “Event of Default”), 

including, without limitation: 

 failure to make payments when due; 

 invalidity of the DIP Loan Documents; 

 any of the Debtors shall file a pleading seeking to vacate or modify the Interim 

DIP Order or the Final DIP Order over the objection of the DIP Lender; 

 entry of an order without the prior written consent of the DIP Lender amending, 

supplementing or otherwise modifying the Interim DIP Order or the Final DIP 

Order; 

 reversal, vacatur or stay of the effectiveness of the Interim DIP Order or the 

Final DIP Order except to the extent reversed within five (5) Business Days; 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 52 of 114
278261410 

11 

4873-0781-6093 

 any violation of any material term of the Interim DIP Order or the Final DIP 

Order by the Debtors; 

 dismissal of the Chapter 11 Case of a Debtor with material assets or conversion 

of the Chapter 11 Case of a Debtor with material assets to a case under Chapter 

7 of the Bankruptcy Code, or any Debtor shall file a motion or other pleading 

seeking such dismissal or conversion of any Bankruptcy Case; 

 appointment of a Chapter 11 trustee or examiner with enlarged powers, or any 

Debtor shall file a motion or other pleading seeking such appointment; 

 any sale of all or substantially all assets of the Debtors pursuant to Section 363 

of the Bankruptcy Code, unless such sale is conducted in accordance with the 

Bid Procedures; 

 failure to meet a Milestone, unless extended or waived by the prior written 

consent of the DIP Lender; 

 the Debtors’ filing of (or supporting another party in the filing of) a motion 

seeking entry of, or the entry of an order by the Bankruptcy Court, granting any 

superpriority claim or lien (except as contemplated herein) which is senior to or 

pari passu with the DIP Claims; 

 an order shall be entered in any of the Chapter 11 Cases, without the prior written 

consent of the DIP Lender: (i) permitting any administrative expense or any 

claim (now existing or hereafter arising of any kind or nature whatsoever) to 

have priority equal or superior to the DIP Claims (other than the Carve Out) or 

(ii) granting or permitting the grant of a lien that is equal in priority or senior to 

the DIP Liens (other than the Carve Out); 

 two or more members of the Executive Management Team resign or otherwise 

terminate their employment relationship with the Debtor. The term “Executive 

Management Team” shall be defined in the DIP Facility Documents as including 

the C-Suite executives and such other key employees as the Debtor may 

expressly identify; 

 the Debtors’ filing of a motion seeking entry of an order approving any key 

employee incentive plan, employee retention plan, or comparable plan, without 

the prior written consent of the DIP Lender; 

 cessation of the DIP Liens or the DIP Claims to be valid, perfected and 

enforceable in all respects; 

 Permitted Variances under the Budget are exceeded for any period of time 

without consent of or waiver by the DIP Lender; 

 subject to entry of the Final DIP Order, the allowance of any claim or claims 

under Section 506(c) of the Bankruptcy Code or otherwise against any DIP 

Lender; 

 an order shall have been entered by the Bankruptcy Court prohibiting, limiting 

or restricting the right of the DIP Lender to credit bid for any or all of the 

Debtors’ assets; and 

 the payment of any prepetition claim other than (i) as consented to by the DIP 

Lender, (ii) as authorized by the Budget, (iii) permitted under the terms of the 

DIP Credit Agreement or (iv) as authorized by the Bankruptcy Court pursuant 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 53 of 114
278261410 

12 

4873-0781-6093 

to the “first day” or “second day” orders or the Interim DIP Order or the Final 

DIP Order and reflected in the Budget. 

Termination: Upon the occurrence and during the continuance of an Event of Default, the DIP 

Lender shall, by written notice to Borrowers, its counsel, the U.S. Trustee and 

counsel for any statutory committee, terminate the DIP Facility, declare the 

obligations in respect thereof to be immediately due and payable and, subject to the 

immediately following paragraph, exercise all rights and remedies under the DIP 

Loan Documents, the Interim DIP Order, and the Final DIP Order. 

Remedies: The DIP Lender shall have customary remedies upon the occurrence and during the 

continuance of an Event of Default, including, without limitation, the following: 

Without further order from the Bankruptcy Court, and subject to the terms of the 

Interim DIP Order and the Final DIP Order (including in respect of any required 

notices), the automatic stay provisions of section 362 of the Bankruptcy Code shall 

be vacated and modified to the extent necessary to permit the DIP Lender to exercise, 

upon the occurrence and during the continuance of any Event of Default under their 

respective DIP Loan Documents, all rights and remedies provided for in the DIP 

Loan Documents, and to take any or all of the following actions without further order 

of or application to the Bankruptcy Court (as applicable): (a) immediately terminate 

the Debtors’ limited use of any cash collateral; (b) cease making any DIP Loan under 

the DIP Facility to the Debtors; (c) declare all DIP Obligations to be immediately 

due and payable; (d) freeze monies or balances in the Debtors’ accounts (and, with 

respect to the DIP Credit Agreement and the DIP Facility, sweep all funds contained 

in the Controlled Accounts); (e) immediately set-off any and all amounts in accounts 

maintained by the Debtors with the DIP Lender against the DIP Obligations, or 

otherwise enforce any and all rights against the DIP Collateral in the possession of 

any of the applicable DIP Lender, including, without limitation, disposition of the 

DIP Collateral solely for application towards the DIP Obligations; and (f) take any 

other actions or exercise any other rights or remedies permitted under the Interim 

DIP Order and the Final DIP Order, the DIP Loan Documents or applicable law to 

effect the repayment of the DIP Obligations; provided, however, that the DIP Lender 

must provide the Debtors, the U.S. Trustee and any official committee with five (5) 

calendar days’ written notice (which may be by email) and file such notice of the 

Docket of the Chapter 11 Cases before exercising any enforcement rights or 

remedies; provided, further, that neither the Debtors, any statutory committee nor 

any other party-in-interest shall have the right to contest the enforcement of the 

remedies set forth in the Interim DIP Order and the Final DIP Order and the DIP 

Loan Documents, other than to argue that an Event of Default and/or a DIP 

Termination Date has not occurred. 

The Debtors shall waive any right, without the prior written consent of the DIP 

Lender, to seek relief under the Bankruptcy Code, including under section 105 

thereof, to the extent such relief would restrict or impair the rights and remedies of 

the DIP Lender set forth in the Interim DIP Order and the Final DIP Order and in 

the DIP Loan Documents. 

Marshalling and 

Waiver of 

506(c): 

Effective upon entry of the Final DIP Order, the DIP Lender shall not be subject to 

the equitable doctrine of “marshaling” or any similar doctrine with respect to the 

DIP Collateral and all proceeds shall be received and applied pursuant to the Final 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 54 of 114
278261410 

13 

4873-0781-6093 

DIP Order and the DIP Loan Documents notwithstanding any other agreement or 

provision to the contrary. 

Effective upon entry of the Final DIP Order, the Debtors (on behalf of themselves 

and their estates) shall waive, and shall not assert in the Chapter 11 Cases or any 

successor cases, any surcharge claim under sections 105(a) and/or 506(c) of the 

Bankruptcy Code or otherwise for any costs and expenses incurred in connection 

with the preservation, protection or enhancement of, or realization by the DIP 

Lender, upon the DIP Collateral. 

Expenses The Borrowers shall jointly and severally pay (i) (x) all reasonable and documented 

(in summary form) out-of-pocket fees, costs, disbursements and expenses of the DIP 

Lender (including, but limited in the case of counsel, to all reasonable and 

documented (in summary form) out-of-pocket fees, costs, disbursements and 

expenses of the DIP Lender’s counsels, and any successor counsel to each), in each 

case in connection with the negotiations, preparation, execution and delivery of the 

DIP Loan Documents and the funding of all DIP Loan under the DIP Facility, 

including, without limitation, all due diligence, transportation, computer, 

duplication, messenger, audit, insurance, appraisal, valuation and consultant costs 

and expenses, and all search, filing and recording fees, incurred or sustained by the 

DIP Lender and its counsel and professional advisors in connection with the DIP 

Facility, the DIP Loan Documents or the transactions contemplated thereby, the 

administration of the DIP Facility and any amendment or waiver of any provision of 

the DIP Loan Documents, and (ii) without duplication, all reasonable and 

documented (in summary form) out-of-pocket fees, costs, disbursements and 

expenses of the DIP Lender (including, but limited in the case of counsels, to all 

reasonable and documented (in summary form) out-of-pocket fees, costs, 

disbursements and expenses of outside counsels to the DIP Lender (and any 

successor counsel), and, to the extent necessary, one firm of local counsel engaged 

by the DIP Lender in each relevant jurisdiction, and any successor counsel to such 

primary counsel and local counsel, in each case in connection with (A) the 

enforcement of any rights and remedies under the DIP Loan Documents, (B) the 

Chapter 11 Cases, including attendance at all hearings in respect of the Chapter 11 

Cases; and (C) defending and prosecuting any actions or proceedings arising out of 

or relating to the DIP Obligations, the Liens securing the DIP Obligations, or any 

transaction related to or arising in connection with the DIP Credit Agreement or the 

other DIP Loan Documents (collectively, the “DIP Lender Reimbursements”). 

Indemnification: The Debtors shall jointly and severally indemnify and hold harmless the DIP Lender 

and each of its affiliates and each of their respective officers, directors, employees, 

controlling persons, agents, advisors, attorneys and representatives of each (each, an 

“Indemnified Party”) from and against any and all claims, damages, losses, liabilities 

and expenses (including, without limitation, fees and disbursements of counsel), 

joint or several, that may be incurred by or asserted or awarded against any 

Indemnified Party, in each case arising out of or in connection with or relating to 

any investigation, litigation or proceeding or the preparation of any defense with 

respect thereto, arising out of or in connection with or relating to the DIP Facility, 

the DIP Loan Documents or the transactions contemplated thereby, or any use made 

or proposed to be made with the DIP Proceeds, whether or not such investigation, 

litigation or proceeding is brought by any Debtor or any of its subsidiaries, any 

shareholders or creditors of the foregoing, or any other third party, an Indemnified 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 55 of 114
278261410 

14 

4873-0781-6093 

Party or any other person, or an Indemnified Party is otherwise a party thereto and 

whether or not the transactions contemplated hereby or under the DIP Loan 

Documents are consummated, except, with respect to any Indemnified Party, to the 

extent such claim, damage, loss, liability or expense is found in a final 

non-appealable judgment by a court of competent jurisdiction to have resulted solely 

from such Indemnified Party’s gross negligence or willful misconduct or any of such 

Indemnified Party’s affiliates or their respective principals, directors, officers, 

employees, representatives, agents, attorneys or third party advisors. No 

Indemnified Party shall have any liability (whether direct or indirect, in contract, tort 

or otherwise) to any Debtor or any of its subsidiaries or any shareholders or creditors 

of the foregoing for or in connection with the transactions contemplated hereby, 

except, with respect to any Indemnified Party, to the extent such liability is found in 

a final non-appealable judgment by a court of competent jurisdiction to have resulted 

solely from such Indemnified Party’s gross negligence or willful misconduct or any 

of such Indemnified Party’s affiliates or their respective principals, directors, 

officers, employees, representatives, agents, attorneys or third party advisors. In no 

event, however, shall any Indemnified Party be liable on any theory of liability for 

any special, indirect, consequential or punitive damages. 

Assignments 

and 

Participations:

No consent of the Borrowers shall be required for any assignments to a U.S. 

subsidiary of the DIP Lender. 

Governing Law: Except as governed by the Bankruptcy Code, the DIP Facility Documents shall be 

governed by the law of the State of New York. 

Counsel to the 

DIP Lender: 

Akerman LLP 

2001 Ross Avenue 

Suite 3600 

Dallas, TX 75201 

Attn: Eduardo S. Espinosa and John H. Thompson 

Email: john.thompson@akerman.com 

 eduardo.espinosa@akerman.com 

Counsel to the 

Debtors: 

Gray Reed 

1601 Elm Street, Suite 4600 

Dallas, Texas 75201 

Attn: Jason S. Brookner and Amber M. Carson 

Email: jbrookner@grayreed.com 

 acarson@grayreed.com 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 56 of 114
4861-1202-7294 

Exhibit 2 

Approved Budget 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 57 of 114
Eye Care Leaders Portfolio Holdings, LLC, et al.

DIP Financing Budget 1.21.24

$ - Thousands

Week Ending---> 1 2 3 4 5 6 7 8 9 10 11 12 13 

19-Jan 26-Jan 2-Feb 9-Feb 16-Feb 23-Feb 1-Mar 8-Mar 15-Mar 22-Mar 29-Mar 5-Apr 12-Apr TOTAL

Total Receipts 420.8 $ 490.8 $ 583.6 $ 611.8 $ 611.8 $ 611.8 $ 607.8 $ 583.9 $ 583.9 $ 583.9 $ 583.9 $ 601.2 $ 608.1 $ 7,483.4 $ 

Operating Disbursements

Payroll - 2.0 340.0 - 345.0 - 345.0 - 350.0 - - 350.0 - 1,732.0 

Hosting and EMR Fees - 208.8 216.7 236.4 236.4 236.4 238.4 250.5 250.5 250.5 250.5 252.9 253.9 2,882.0 

Consulting and Oustourced Services - 132.0 80.5 84.4 84.4 84.4 84.1 82.0 82.0 82.0 82.0 81.7 81.6 1,041.0 

Information Technology - 72.3 68.5 59.0 59.0 59.0 58.6 56.3 56.3 56.3 56.3 57.8 58.4 717.8 

Sales & Marketing - 3.6 4.0 4.8 4.8 4.8 5.6 10.8 10.8 10.8 10.8 8.4 7.4 86.4 

Other G&A 5.0 21.2 6.8 21.3 21.3 21.3 8.4 19.9 19.9 19.9 19.9 7.9 20.9 213.7 

Insurance - 20.0 20.0 20.0 60.0 

Other Operating - 12.1 12.1 12.2 12.2 12.2 12.4 13.3 13.3 13.3 13.3 13.3 13.3 153.0 

Sales Taxes - 50.9 - - - 49.7 - - - 49.7 - - - 150.3 

Critical Vendors - - - - 1,000.0 - - - - - - - - 1,000.0 

Total Operating Disbursements $ 5.0 $ 503.0 $ 728.6 $ 438.2 $ 1,763.2 $ 467.9 $ 752.5 $ 452.7 $ 782.7 $ 482.4 $ 432.7 $ 772.0 $ 455.5 $ 8,036.3

Operating Cash Flow $ (12.1) 415.8 $ (144.9) $ 173.7 $ (1,151.3) $ 144.0 $ (144.7) $ 131.2 $ (198.8) $ 101.5 $ 151.2 $ (170.9) $ 152.6 $ (552.9) $ 

Accumulated 415.8 403.7 258.8 432.4 (718.9) (574.9) (719.7) (588.5) (787.3) (685.8) (534.6) (705.5) (552.9)

Other (Sources)/ Uses

Advances from DIP Lender - (1,300.0) - - (1,500.0) - (1,000.0) - (800.0) - - - - (4,600.0) 

DIP Loan Costs - 300.0 150.0 450.0 

Creditors Committee 25.0 25.0 25.0 25.0 25.0 25.0 25.0 25.0 25.0 25.0 25.0 25.0 25.0 325.0 

Financial Advisor 75.0 75.0 75.0 75.0 75.0 75.0 75.0 75.0 75.0 75.0 75.0 75.0 75.0 975.0 

Debtor Counsel 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 1,950.0 

Capital Expenditures 11.5 11.5 11.9 12.9 12.9 12.9 12.7 11.5 11.5 11.5 11.5 8.6 7.5 148.2 

Restructuring Costs & UST Fees - - - 25.0 - - - 25.0 - - - 94.5 25.0 169.5 

Total Other (Sources/Uses) $ 261.5 $ (738.5) $ 411.9 $ 287.9 $ (1,237.1) $ 262.9 $ (737.3) $ 286.5 $ (538.5) $ 261.5 $ 261.5 $ 353.1 $ 282.5 $ (582.3)

Net Cash Flow 154.4 $ 726.4 $ (556.8) $ (114.3) $ 85.7 $ (119.0) $ 592.6 $ (155.3) $ 339.7 $ (160.0) $ (110.3) $ (524.0) $ (129.9) $ 

Accumulated 154.4 880.8 324.0 209.7 295.5 176.5 769.1 613.8 953.5 793.5 683.3 159.3 29.4

Change

 Cash Balance 73.0 $ 227.4 $ 953.8 $ 397.0 $ 282.8 $ 368.5 $ 249.5 $ 842.1 $ 686.8 $ 1,026.5 $ 866.6 $ 756.3 $ 232.3 $ 102.4 $ 29.4 $ 

 DIP Facility Balance - $ - $ 1,300.0 $ 1,300.0 $ 1,300.0 $ 2,800.0 $ 2,800.0 $ 3,800.0 $ 3,800.0 $ 4,600.0 $ 4,600.0 $ 4,600.0 $ 4,600.0 $ 4,600.0 $ 4,600.0 $ 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 58 of 114
4874-0755-9072 

Exhibit B 

Redline of Revised Proposed Order 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 59 of 114
4861-1202-7294 

INTERIM ORDER (I) AUTHORIZING THE 

DEBTORS TO (A) OBTAIN POSTPETITION FINANCING 

AND (B) UTILIZE CASH COLLATERAL, (II) GRANTING LIENS AND 

SUPERPRIORITY ADMINISTRATIVE EXPENSE CLAIMS, (III) GRANTING 

ADEQUATE PROTECTION, (IV) MODIFYING THE AUTOMATIC STAY, 

(V) SCHEDULING A FINAL HEARING, AND (VI) GRANTING RELATED RELIEF 

1 The Debtors in these chapter 11 cases and the last four digits of each Debtors’ federal tax identification number are 

as follows: ECL PH Services Group LLC (6746); Eye Care Leaders Portfolio Holdings, LLC (0576); Alta Billing 

Holdings, LLC (4944); Alta Billing, LLC (4823); Canta Health, LLC (7791); DJRTC, LLC (N/A); ECL Group, LLC 

(9195); ECL Holdings, LLC (8888); Eye Care Leaders Holdings, LLC (1701); iMedicWare, Inc. (6251); IMW EMR, 

LLC (6421); IMW Holdings, LLC (3980); Insight Software, LLC (8321); Integrity EMR Holdings, LLC (3877); 

Integrity EMR, LLC (3716); IO Practiceware, Inc. (4507); IOPW Holdings, LLC (0461); IOPW, LLC (N/A); Keymed 

Holdings, LLC (0301); Keymed, LLC (9379); MD Office, LLC (9075); MDO Group Holdings, LLC (0435); MDX, 

LLC (5074); Medflow Holdings, LLC (7716); Medflow, Inc. (N/A); MNI Holdings, LLC (7633); MRX Holdings, 

LLC (N/A); My Vision Express, Inc. (N/A); Penn Medical Informatics Systems, LLC (4584); PI Software Holdings, 

LLC (N/A); PI Software, LLC (N/A); PMX, LLC (N/A); Revenue Health Solutions, LLC (7025); RHS Holdings, 

LLC (N/A); The Hoehne Group – Software Division, Inc. (7788). The Debtors’ principal offices are located at 555 S. 

Mangum Street, Suite 100, Durham, NC 27701. 

IN THE UNITED STATES BANKRUPTCY COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

 § 

In re: § Chapter 11 

 § 

EYE CARE LEADERS PORTFOLIO 

HOLDINGS, LLC, et al.,

1

§ 

§ 

Case No. 24-80001(MVL) 

 § (Jointly Administered) 

Debtors. § 

 § 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 60 of 114
2 

4861-1202-7294 

Upon the motion (the “Motion”)2 of the above-captioned debtors and debtors in possession 

(collectively, the “Debtors”) for entry of interim and final orders pursuant to sections 105, 361, 

362, 363, 364(c)(1), 364(c)(2), 364(c)(3), 364(d), 364(e), 503 and 507 of title 11 of the United 

States Code, 11 U.S.C. §§ 101, et seq. (the “Bankruptcy Code”), rules 2002, 4001, 6003, 6004 and 

9014 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) and Section D of 

the Procedures for Complex Cases in the Northern District of Texas (the “Complex Case 

Procedures”) seeking, among other things: 

a. entry of an interim order (this “Interim DIP Order”) and subsequently, a final order 

(the “Final DIP Order”): 

(i) Authorizing the Debtors to use the purported cash collateral of their 

Prepetition Lenders, in accordance with the terms and conditions set forth 

in the Interim DIP Order and in accordance with the Approved Budget and 

authority for the Debtors to grant adequate protection to the Prepetition 

Lender with respect to any postpetition diminution in the value of their 

potential interests in the Prepetition Collateral (as defined below) arising 

from, among other things, the Debtors’ sale, use, or lease of the Prepetition 

Collateral and, subject to entry of the Final DIP Order, the priming of the 

alleged prepetition liens held by the Prepetition Lenders (as defined below) 

by the DIP Liens (as defined below); 

(ii) Subject and subordinate to the Carve Out (as defined below), replacement 

liens to the Prepetition Lenders, to the extent they have valid prepetition 

liens on the Prepetition Collateral; 

(iii) Authorizing the Debtors, as borrowers, to enter into a senior secured 

postpetition financing facility (the “DIP Facility”) consisting of a 

superpriority debtor in possession credit facility pursuant to the terms and 

conditions of that certain Superpriority Secured Debtor in Possession Credit 

Facility Term Sheet (as amended or modified from time to time, the “DIP 

Term Sheet”) among the Debtors and Create Capital, LLC (the “DIP 

Lender”) attached to this Interim DIP Order as Exhibit 1, and which shall 

consist of a superpriority priming line of credit and term loan facility with 

an aggregate principal amount of up to $8.0 million from the DIP Lender as 

follows: 

a. Interim Approval. From the date of the Interim DIP Order until the 

date a Final DIP Order is entered (the “Interim Period”), approval to 

2 Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Motion. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 61 of 114
3 

4861-1202-7294 

draw DIP Loans in the maximum amount of $1.3 million, subject to 

compliance with the terms, conditions, and covenants described in 

the DIP Term Sheet, the Interim DIP Order, and the Approved 

Budget (defined below); and 

b. Final Approval. Upon entry of the Final DIP Order, approval to 

draw DIP Loans in an amount up to $6.7 million, subject to 

compliance with the terms, conditions and covenants described in 

the DIP Loan Documents (defined below), the Final DIP Order and 

the Approved Budget; 

(iv) Authorizing the Debtors to execute and enter into the DIP Term Sheet and 

any other agreements, instruments, pledge agreements, guarantees, security 

agreements, intellectual property security agreements, control agreements, 

notes and other documents reasonably required by the DIP Lender 

(collectively, and together with the Orders, the “DIP Loan Documents” and 

all obligations and indebtedness of any of the Debtors to the DIP Lender 

under the DIP Loan Documents (including, without limitation the DIP 

Loans), collectively, the “DIP Obligations”) and to perform their respective 

obligations thereunder and all such other and further acts as may be 

necessary, appropriate, or desirable in connection with the DIP Loan 

Documents, including, but not limited to, granting or perfecting liens or 

security interests by any of the Debtors in favor of and for the benefit of the 

DIP Lender on account of the DIP Facility; 

(v) Authorization and direction for the Debtors to use the proceeds of the DIP 

Facility as expressly provided in the DIP Loan Documents and in 

accordance with the Approved Budget; 

(vi) Authorizing the Debtors to pay the principal, interest, fees, expenses and 

other amounts payable under the DIP Term Sheet and the DIP Loan 

Documents as such become earned, due and payable, including, but not 

limited to, the fees and costs of the DIP Lender’s professionals, advisors, 

and consultants (collectively, the “DIP Lender Reimbursements”); 

(vii) Granting to the DIP Lender allowed superpriority claims, subject to the 

Carve Out (as defined below), pursuant to section 364(c)(1) of the 

Bankruptcy Code payable from and having recourse to all assets of the 

Debtors; 

(viii) Granting to the DIP Lender (a) liens on all unencumbered prepetition and 

postpetition property of the Debtors and their respective estates and the 

proceeds thereof pursuant to section 364(c)(2) of the Bankruptcy Code 

including—subject to and effective upon entry of the Final DIP Order, and 

as a “last look” in the event the DIP Lender is not otherwise repaid in full—

any Avoidance Proceeds (as defined below), (b) for purposes of the Interim 

DIP Order only, a junior lien pursuant to 364(c)(3) of the Bankruptcy Code 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 62 of 114
4 

4861-1202-7294 

on the assets of Insight Software, LLC, Keymed, LLC, MD Office, LLC 

and MRX Holdings, LLC (the “Allegedly Encumbered Debtors”), (c), 

subject to entry of the Final DIP Order, priming liens pursuant to section 

364(d) of the Bankruptcy Code on all prepetition and postpetition property 

of the Debtors’ estates and all proceeds thereof, in each case of (a), (b) and 

(c) above, subject to the Carve Out and with the relative priorities set forth 

in the Interim DIP Order, and (d) the right to lower the DIP Commitment in 

its sole discretion if the senior priming liens described in (iii) above are not 

granted pursuant to the terms of the Final DIP Order; 

(ix) Subject to entry of the Final DIP Order approving such relief, waiving (a) 

any equitable doctrine of marshaling and (b) the Debtors’ right to surcharge 

the DIP Collateral pursuant to section 506(c) of the Bankruptcy Code; 

(x) Authorizing the DIP Lender to terminate (a) all commitments to extend 

credit under the DIP Facility, and (b) to terminate the Debtors’ sale, use, or 

lease of Cash Collateral or the proceeds of the DIP Facility, each upon the 

occurrence and continuance of an Event of Default (as defined below); 

(xi) Modifying the automatic stay of Bankruptcy Code section 362 (the 

“Automatic Stay”) to the extent necessary to implement and effectuate the 

terms and provisions of the DIP Loan Documents, including the Interim 

DIP Order; 

(xii) Approving a waiver of any applicable stay (including under Bankruptcy 

Rule 6004) with respect to the effectiveness of this Interim DIP Order; 

(xiii) Scheduling an interim hearing (the “Interim Hearing”) on the Motion; 

(xiv) Scheduling a final hearing (the “Final Hearing”) such that the Final Order 

is entered no later than 35 days after the Petition Date to consider final 

approval of the DIP Facility; and 

(xv) Granting such other and further relief as is just and proper. 

and this Court having considered the Motion, the exhibits attached thereto, the DIP Loan 

Documents, and the Declaration of Sophia Turrell, Chief Executive Officer, in Support of First 

Day Motions (the “First Day Declaration”) and the Declaration of Mark Shapiro in support of the 

Motion (the “Shapiro Declaration,” together with the First Day Declaration, the “Declarations”), 

the evidence submitted, and the record made at the Interim Hearing held before this Court on 

January 25__, 2024; and due, proper and sufficient notice of the Motion, having been given in 

accordance with Bankruptcy Rules 4001(b), (c), and (d) and 9014, and the local rules, procedures 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 63 of 114
5 

4861-1202-7294 

and orders of the Court; and the Interim Hearing to consider the relief requested in the Motion 

having been held and concluded; and all objections, if any, to the relief requested in the Motion 

having been withdrawn, resolved, or overruled by this Court; and it appearing to this Court that 

granting the interim relief requested is necessary to avoid immediate and irreparable harm to the 

Debtors and their estates (as defined under Bankruptcy Code section 541, the “Estates”), and 

otherwise is fair and reasonable and in the best interests of the Debtors, their Estates, and their 

creditors and other constituents, and is essential for the continued operation of the Debtors’ 

business; and after due deliberation and consideration, and good and sufficient cause appearing 

therefor; 

THE COURT HEREBY MAKES THE FOLLOWING FINDINGS OF FACT AND 

CONCLUSIONS OF LAW: 

A. Petition Date. On January 16, 2024 (the “Petition Date”), each of the Debtors filed 

a voluntary petition for relief under chapter 11 of the Bankruptcy Code in this Court commencing 

these chapter 11 cases (these “Chapter 11 Cases”). On January 22, 2024, this Court entered an 

order approving the joint administration of these Chapter 11 Cases. The Debtors are continuing 

to operate their business and manage their affairs as debtors in possession pursuant to sections 

1107(a) and 1108 of the Bankruptcy Code. No trustee, examiner, or official committee of 

unsecured creditors (“Committee”) has been appointed in these Chapter 11 Cases. 

B. Jurisdiction and Venue. This Court has jurisdiction, pursuant to 28 U.S.C. §§ 

157(b) and 1334, over these Chapter 11 Cases, the Motion, the parties, and the Debtors’ property. 

This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). Venue for these Chapter 11 Cases 

and proceedings on the Motion is proper in this district pursuant to 28 U.S.C. §§ 1408 and 1409. 

The statutory bases for the relief sought herein are Bankruptcy Code sections 105, 361, 362, 363, 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 64 of 114
6 

4861-1202-7294 

364, 503, and 507, Bankruptcy Rules 2002, 4001, 6003, 6004, and 9014, and the Complex Case 

Procedures. 

C. Prepetition Secured Debt. According to the Motion, Bbetween 2014 and 2017, 

certain of the Debtors entered into multiple allegedly secured term loan agreements (collectively, 

the “Prepetition Term Loans” and the underlying documents being the “Prepetition Loan 

Documents”) with various entities related to GHTG Investment, LLC (collectively, the 

“Prepetition Lenders”) for the purpose of acquiring certain other Debtor entities. Each Prepetition 

Term Loan, if truly debt, is due at maturity, bears interest at rates of 5–5.50% per annum and 

matures in either June 2029 or December 2029. As of the Petition Date, the outstanding aggregate 

principal and interest due under the Prepetition Term Loans purports to be approximately $118 

million. The Debtors have no other long-term debt obligations. 

i. The Debtors content that Ccertain of the Prepetition Term Loans are 

purportedly secured by the membership interests and books and records of the borrowing and 

acquired entities, and all proceeds, supporting obligations, and products of the foregoing. Certain 

others are purportedly secured by substantially all of the borrowers’ assets. The relevant 

Prepetition Lenders may not be fully perfected. A chart listing each Prepetition Term Loan is 

attached to the First Day Declaration as Exhibit C. 

ii. Pursuant to the Motion, Tthe Prepetition Loan Documents generally attempt 

to grant security interests to the Prepetition Lenders in substantially all of certain Debtors’ assets. 

The Debtors contend that, However, at this juncture, it does not appear as if the Prepetition Lenders 

have properly perfected their liens in the Debtors’ cash because it appears the Prepetition Lenders 

do not “control” the deposit accounts: (i) there do not appear to be any deposit account control 

agreements (“DACAs”) in place with respect to any of the Debtors and (ii) the Prepetition Lenders 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 65 of 114
7 

4861-1202-7294 

do not appear to be banks and there do not appear to be any deposit accounts residing at any of the 

Prepetition Lenders in which the Debtors deposit cash. 

iii. Additionally, the Debtors contend it appears there may be other lien and 

perfection (imperfection) issues because, for certain of the Debtors, no UCC-1 financing statement 

was filed at all, and in other instances, UCC-1 financing statements extend only to a pledge of the 

stock/membership interests in certain subsidiaries and not to any assets of the borrower or the 

subsidiary in question. 

iv. Attached as Exhibit B to the Motion is a chart showing, among other things, 

the Debtors’ belief as to which Debtors have financing statements filed against them, and the scope 

of the collateral set forth in the applicable UCC-1 financing statement. 

v. The Debtors therefore contend that, because the Prepetition Lenders do not 

have a properly perfected lien on the Debtors’ cash, they cannot meet their burden of proof under 

section 363(p) of the Bankruptcy Code and are not entitled to adequate protection for the Debtors’ 

postpetition use of cash. The Debtors nonetheless seek to provide the Prepetition Lenders with 

replacement liens as adequate protection on an interim basis, pending entry of the Final DIP Order 

and a determination by the Court as to the validity, priority and extent of the Prepetition Lenders’ 

alleged liens. 

vi. The Debtors further contend that the Prepetition Lenders are all insiders of 

Global Growth Holdings, Inc. and its affiliates (including the individual behind Global Growth, 

Greg Lindberg), the private equity firm that was the indirect prior owner of the Debtors before the 

Debtors were transferred into an irrevocable trust on or about July 22, 2021, called the “ECL 

Trust.” The ECL Trust, since its formation, has been the sole member of Eye Care Leaders 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 66 of 114
8 

4861-1202-7294 

Holdings Portfolio, LLC (“HoldCo”), the Debtors’ ultimate parent, as set forth in HoldCo’s 

Amended and Restated Operating Agreement also dated July 22, 2021. 

vii. As a result of this insider relationship, and the multiple proceedings and 

allegations against Global Growth, Mr. Lindberg and various affiliates,3

 the Debtors believe that 

the claims and liens allegedly held by the Prepetition Lenders are subject to recharacterization 

and/or equitable subordination. 

D. Findings Regarding DIP Facility and the Use of Cash Collateral. 

i. Request for Postpetition Financing and Use of Cash. The Debtors seek 

authority to enter into and perform under the DIP Loan Documents. The DIP Lender shall have 

no obligation to make loans or advances except pursuant to the terms and conditions set forth 

herein and in the other DIP Loan Documents and no obligation to waive any conditions required 

thereunder. The Debtors also seek authority to use case on the terms described herein, and in 

accordance with the Approved Budget, which shall be subject to Permitted Variances (as defined 

below) to administer their Chapter 11 Cases and fund their operations. 

3 See, e.g., PB Life & Annuity Co., Ltd. v. Lindberg, et al., Adv. No. 23-01000 (LGB) (Bankr. S.D.N.Y.); United States 

v. Lindberg, et al., Case No. 5:19-cr-22-MOC-DSC (W.D.N.C.); United States v. Lindberg, 3:23-cr-48-MOC 

(W.D.N.C.); see also Southland Nat'l Ins. Corp. v. Lindberg, 289 N.C. App. 378, 381, 889 S.E.2d 512, 516 (2023), 

writ allowed, 894 S.E.2d 747 (N.C. 2023) and review allowed in part, denied in part, 894 S.E.2d 748 (N.C. 2023); see 

also https://www.justice.gov/opa/pr/former-insurance-executive-indicted-2b-fraud-scheme (last visited on Jan. 18, 

2024) (“ ‘The indictment reveals a carefully orchestrated scheme that relied on a web of complex financial investments 

and transactions designed to evade regulators, disguise the financial health of Lindberg’s insurance companies, and 

conceal the alleged purpose of the scheme: Lindberg’s personal gain,’ said U.S. Attorney Dena J. King for the Western 

District of North Carolina. ‘My office will continue to work with our law enforcement partners to investigate and 

prosecute financial wrongdoing and hold perpetrators accountable for their actions’ ”); 

https://www.justice.gov/criminal/criminal-vns/case/united-states-v-greg-e-lindberg (last visited on Jan. 18, 2024) 

(“According to court documents, from no later than 2016 through at least 2019, Lindberg and others allegedly 

conspired and schemed to defraud various insurance companies, other third parties, and ultimately thousands of 

insurance policyholders. Lindberg allegedly deceived the North Carolina Department of Insurance and other 

regulators, evaded regulatory requirements meant to protect policyholders, concealed the true financial condition of 

his insurance companies, and improperly used insurance company funds for his personal benefit. In particular, the 

indictment alleges that Lindberg personally benefitted from the fraud in part by using insurance company funds to 

finance his lavish lifestyle, including the purchase and refinancing of personal real estate and ‘forgiving’ more than 

$125 million in loans from his affiliated companies to himself to fund his personal expenses”). 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 67 of 114
9 

4861-1202-7294 

ii. Priming of the Prepetition Liens. The Debtors do not seek to prime the 

alleged liens of the Prepetition Lenders as part of this Interim DIP Order. This matter is reserved 

for the Final Hearing. 

iii. Need for Postpetition Financing and Use of Cash. The Debtors do not have 

sufficient liquidity to operate their business in the ordinary course or to pursue either a sale or a 

stand-alone restructuring without the financing requested in the Motion. The Debtors’ ability to 

maintain business relationships with vendors, suppliers, and customers, to pay their employees, 

pay certain fees and expenses as set forth herein, and to otherwise fund their operations is essential 

to the Debtors’ continued viability as the Debtors seek to maximize and preserve the value of their 

respective Estates for the benefit of all stakeholders. The ability of the Debtors to obtain sufficient 

working capital and liquidity through the proposed DIP Facility with the DIP Lender and to use 

cash as set forth in this Interim DIP Order and the DIP Loan Documents is vital to the Debtors’ 

preservation and maintenance of going concern value. If the Debtors do not obtain authorization 

to borrow under the DIP Loan Documents, they, and their Estates, will suffer immediate and 

irreparable harm. Accordingly, the Debtors have an immediate need to obtain the DIP Loans and 

to use cash. 

iv. No Credit Available on More Favorable Terms. As set forth in the Shapiro 

Declaration and as demonstrated at the Interim Hearing, given their current financial condition, 

financing arrangements, and capital structure, the Debtors have been unable to procure the 

necessary financing from sources other than the DIP Lender on terms more favorable than those 

set forth in the DIP Term Sheet. The Debtors have been unable to reasonably obtain adequate 

unsecured credit allowable under Bankruptcy Code section 503(b)(1) as an administrative expense. 

The Debtors have also been unable to obtain secured credit from other sources: (a) having priority 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 68 of 114
10 

4861-1202-7294 

over that of administrative expenses of the kind specified in Bankruptcy Code sections 503(b), 

507(a), and 507(b); (b) secured only by a lien on property of the Debtors and their Estates that is 

not otherwise subject to a lien; or (c) secured solely by a junior lien on property of the Debtors and 

their Estates that is subject to a lien. Financing on a postpetition basis is not otherwise available 

without granting to the DIP Lender: (x) automatically perfected security interests in and liens on 

(each as provided herein) all of the Debtors’ existing and after- acquired assets with the priorities 

set forth herein; (y) superpriority claims and liens; and (z) the other protections to the extent set 

forth in this Interim DIP Order. After considering all reasonable alternatives, the Debtors have 

concluded, in the exercise of their sound and reasonable business judgment, that the DIP Facility, 

including, without limitation, the DIP Loans, represents the best financing available to them at this 

time. 

v. Use of Proceeds of the DIP Facility. As a condition to entry into the DIP 

Loan Documents, the extensions of credit under the DIP Facility and the authorization to use cash, 

the Debtors have agreed, that proceeds of the DIP Facility and cash shall be used in accordance 

with the terms of this Interim DIP Order, the DIP Loan Documents, and the Approved Budget 

(which shall be subject to Permitted Variances), solely to (i) provide working capital and for 

general corporate purposes of the Debtors during the Chapter 11 Cases; (ii) pay interest, fees, costs 

and expenses related to the DIP Facility; (iii) pay the fees, costs and expenses of the estate 

professionals retained in the Chapter 11 Cases as set forth in the Approved Budget and approved 

by the Bankruptcy Court; (iv) pay the DIP Lender Reimbursements; (v) make all permitted 

payments of costs of administration of the Chapter 11 Cases; and (vi) pay such prepetition 

expenses as are consented to by the DIP Lender and approved by the Bankruptcy Court 

(collectively, the “Permitted DIP and Cash Uses”). 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 69 of 114
11 

4861-1202-7294 

vi. The DIP Facility Terms and Conditions are Fair and Reasonable. Based on 

the Motion, the Shapiro Declaration, and the record presented to the Court at the Interim Hearing, 

the terms and conditions of the DIP Facility pursuant to the DIP Loan Documents (including the 

payment of fees and expenses contemplated thereunder) and the use of the DIP Collateral (defined 

below) and cash, pursuant to this Interim DIP Order are fair, reasonable, and the best available to 

the Debtors under the circumstances, reflect the Debtors’ exercise of prudent business judgment 

consistent with their fiduciary duties, are supported by reasonably equivalent value and 

consideration, and were entered into at arm’s-length, under no duress, and without undue 

influence, negligence, or violation of public policy or law. Use of cash and any credit to be 

extended as set forth in the DIP Loan Documents shall be deemed to have been so allowed, 

advanced, made, used, or extended in good faith, and for valid business purposes and uses, within 

the meaning of Bankruptcy Code section 364(e), and the DIP Lender is therefore entitled to the 

protections and benefits of Bankruptcy Code section 364(e) and this Interim Order. 

vii. Bankruptcy Code Sections 506(c) and Marshaling. Subject to entry of the 

Final DIP Order, the DIP Lender is entitled to a waiver of (I) the provisions of Bankruptcy Code 

section 506(c), and (II) the equitable doctrine of “marshaling” or any similar doctrine. 

viii. Adequate Protection. The Debtors have agreed, despite the alleged 

deficiencies in the Prepetition Lender’s Liens and the contention that the Prepetition Lenders’ 

claims and liens may be subject to subordination and/or recharacterization, pursuant to Bankruptcy 

Code sections 361, 362, 363, and 364, to provide the Prepetition Lenders with adequate protection 

against any diminution in value of their interests in the Prepetition Collateral, as set forth herein. 

ix. Good Faith Pursuant to Section 364(e). The terms and conditions of the 

DIP Loan Documents, this Interim DIP Order, and the provision of the DIP Facility were 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 70 of 114
12 

4861-1202-7294 

negotiated in good faith and at arm’s length among the Debtors and the DIP Lender with the 

assistance and counsel of their respective advisors. Credit to be extended under the DIP Facility 

shall be deemed to have been allowed, made, or extended in good faith by the DIP Lender within 

the meaning of section 364(e) of the Bankruptcy Code. 

x. Good and Sufficient Cause Shown. Good and sufficient cause has been 

shown for entry of this Interim DIP Order. The ability of the Debtors to obtain sufficient working 

capital and liquidity under the DIP Loan Documents is vital to the Debtors’ Estates and creditors. 

The relief requested in the Motion is necessary, essential, and appropriate, and is in the best interest 

of and will benefit the Debtors, their creditors, and their Estates, as its implementation will, among 

other things, provide the Debtors with the necessary liquidity to (a) minimize disruption to the 

business and ongoing operations, (b) preserve and maximize the value of the Debtors’ Estates for 

the benefit of all the Debtors’ stakeholders, and (c) maximize and stabilize the value of the 

Debtors’ assets and avoid immediate and irreparable harm to the Debtors, their creditors, their 

business, their employees, and their assets. The terms of the DIP Facility are fair and reasonable, 

reflect each Debtor’s exercise of its business judgment, and are supported by reasonably equivalent 

value and fair consideration. 

xi. Final Hearing. At the Final Hearing, the Debtors will seek final approval 

of the proposed DIP Facility and use of cash pursuant to the Final DIP Order, which shall be in 

form and substance acceptable to the DIP Lender. Notice of the Final Hearing and Final DIP Order 

will be provided in accordance with this Interim DIP Order and no further notice, except as 

provided by this Interim DIP Order, shall be required. 

xii. Notice. Notice of the Interim Hearing and the emergency relief requested 

in the Motion has been provided by the Debtors, whether by facsimile, email, overnight courier, 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 71 of 114
13 

4861-1202-7294 

or hand delivery, to certain parties in interest, including: (a) the U.S. Trustee for the Northern 

District of Texas; (b) the holders of the 30 largest unsecured claims against the Debtors (on a 

consolidated basis); (c) the agent(s) to the Prepetition Lenders; (d) the United States Attorney’s 

Office for the Northern District of Texas; (e) the Internal Revenue Service; (f) the state attorneys 

general for states in which the Debtors conduct business; and (g) any party that has requested 

notice pursuant to Bankruptcy Rule 2002. Under the circumstances, the notice given by the 

Debtors of the Motion, the relief requested therein, and the Interim Hearing is appropriate notice 

thereof and complies with Bankruptcy Rules 4001(b) and (c) and the Complex Case Procedures, 

and no further notice of the relief granted herein is necessary or required. 

Based upon the foregoing findings and conclusions, the Motion and the record before the 

Court with respect to the Motion, and good and sufficient cause appearing therefor, 

IT IS HEREBY ORDERED that: 

1. Motion Approved. The Motion is granted on an interim basis in accordance with 

the terms of this Interim DIP Order. All objections to and reservations of rights with respect to 

the Motion and to the entry of this Interim DIP Order to the extent not withdrawn or resolved are 

hereby overruled on the merits in their entirety. 

2. Authorization of the DIP Loans and the DIP Loan Documents. 

a. The DIP Facility is hereby approved on an interim basis. The Debtors are 

hereby authorized to execute, issue, deliver, enter into, and adopt, as the case may be, the DIP 

Loan Documents. Pending entry of the Final DIP Order, the Debtors are hereby authorized to 

borrow money pursuant to the DIP Loan Documents and request draws thereunder on an interim 

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

the Approved Budget (which shall be subject to Permitted Variances), in an aggregate principal 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 72 of 114
14 

4861-1202-7294 

amount not to exceed $1.3 million. Upon entry of the Final DIP Order, the Debtors may draw 

such amounts as are necessary and agreed to by the DIP Lender subject to the conditions set forth 

in the Approved Budget and the DIP Orders; provided however, that the aggregate amount of all 

DIP Loans shall not exceed $8.0 million (the “Total DIP Commitment”).4 

b. In furtherance of the foregoing and without further approval of this Court, 

each Debtor is authorized to perform all acts, to make, execute, and deliver all instruments and 

documents that may be necessary or required for performance by the Debtors under the DIP Loan 

Documents and the creation and perfection of the DIP Liens described in, provided for, and 

automatically perfected by this Interim DIP Order and the DIP Loan Documents. The Debtors are 

hereby authorized to pay, in accordance with this Interim DIP Order, the principal, interest, fees, 

expenses, DIP Lender Reimbursements and other amounts described in the DIP Loan Documents 

as such become due and without need to obtain further Court approval, as set forth herein. 

c. The Origination Fee and the Closing Fee shall each be earned immediately 

upon entry of this Interim DIP Order. The Origination Fee shall be payable upon the Closing Date 

of the DIP Loan, and shall be deducted from the initial advance approved herein. The Closing Fee 

shall be payable upon the earlier of (i) the DIP Termination Date, or (ii) the closing of a sale 

following entry of a Sale Order (as defined below); provided, however, that no Closing Fee shall 

be payable if the DIP Lender is the successful bidder for the Debtors’ assets. Neither the 

Origination Fee nor the Closing Fee shall be subject to any offset, defense, claim, counterclaim or 

diminution of any type, kind or nature whatsoever. 

d. The DIP Loan Documents, upon execution, shall be valid and binding 

obligations of the Debtors, enforceable against the Debtors and their Estates in accordance with 

4

 The DIP Lender has reserved the right to reduce the Total DIP Commitment in the event the requested lien priming 

pursuant to section 364(d) of the Bankruptcy Code is not authorized as part of the Final DIP Order. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 73 of 114
15 

4861-1202-7294 

their terms, and subject to the terms of this Interim DIP Order. The DIP Loan Documents and this 

Interim Order constitute and evidence the validity and binding effect of the DIP Obligations of the 

Debtors, which DIP Obligations shall be enforceable, jointly and severally, against the Debtors, 

their Estates, and any successors thereto, including, without limitation, any trustee or other estate 

representative appointed in these Chapter 11 Cases or any case under chapter 7 of the Bankruptcy 

Code upon the conversion of any of the Chapter 11 Cases (each, a “Successor Case”). No 

obligation, payment, transfer, or grant of a security or other interest to the DIP Lender under the 

DIP Loan Documents or this Interim DIP Order shall be stayed, restrained, avoidable, voidable, or 

recoverable under the Bankruptcy Code or any applicable law (including, without limitation, under 

Bankruptcy Code section 502(d)), or subject to any defense, reduction, setoff, recoupment, or 

counterclaim of any kind. 

e. From and after the Petition Date, the Debtors are authorized to use 

extensions of credit under the DIP Facility for the purposes specifically set forth in this Interim 

DIP Order and the DIP Loan Documents, and in compliance with the Approved Budget. The 

Debtors are authorized, subject to the satisfaction of the conditions set forth in the DIP Loan 

Documents, to use proceeds of the DIP Collateral and the Prepetition Collateral, subject to the 

Carve Out, and to draw upon the DIP Facility to (a) pay fees, costs, and expenses incurred in 

connection with the transactions contemplated by the DIP Loan Documents; (b) pay other 

administrative costs incurred in connection with the Chapter 11 Cases consistent with the 

Approved Budget, which shall be subject to Permitted Variances; (c) pay for other working capital 

and general corporate purposes of the Debtors consistent with the Approved Budget, which shall 

be subject to Permitted Variance, and other orders entered by the Court; and (d) fund the 

Professional Fee Reserve. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 74 of 114
16 

4861-1202-7294 

3. Non-Material and Material or Adverse DIP Amendments. Subject to the terms and 

conditions of the DIP Loan Documents, the Debtors and the DIP Lender may supplement and 

otherwise make amendments or modifications DIP Loan Document that are non- material and nonadverse to the Debtors. The DIP Lender may waive any provision of the DIP Loan Documents, 

without further approval of the Court; provided, however, that the Debtors shall file a notice on 

the Court’s docket of any such amendment, modification, supplement or waiver, not more than 

three (3) Business Days after the effective date thereof. Any amendments, modifications, or 

supplements to any DIP Loan Documents, other than as set forth in the preceding sentence 

(collectively, “Material or Adverse DIP Amendments”), that are agreed to by the Debtors and the 

DIP Lender, as applicable, in accordance with the terms of the DIP Loan Documents, shall be filed 

on the Docket of these Chapter 11 Cases, with notice to (i) the Office of the United States Trustee 

and (ii) counsel for the Committee or, in the event no Committee is appointed or existing at the 

time, the Debtors’ consolidated list of thirty (30) largest unsecured creditors. If no party in interest 

files an objection to the Material or Adverse DIP Amendment with the Court within five (5) three 

(3) Business Days from the date of such notice, the Debtors and the DIP Lender are authorized 

and empowered to execute, deliver, and implement, in accordance with the terms of the DIP Loan 

Documents, such Material or Adverse DIP Amendment, without further notice, hearing, or 

approval of this Court. Any Material or Adverse DIP Amendment subject to a timely and 

unresolved objection must be approved by the Court to be effective. 

4. Approved Budget. 

a. Compliance with Approved Budget. The Debtors and the DIP Lender have 

agreed to the Approved Budget setting forth all projected cash receipts and cash disbursements on 

a weekly basis, a copy of which is attached hereto as Exhibit 2. The Debtors shall deliver an 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 75 of 114
17 

4861-1202-7294 

updated budget to the DIP Lender at such time and in such manner as set forth herein and in the 

DIP Loan Documents. 

b. Permitted Variance and Financial Reporting Requirements. As set forth 

further herein, the Debtors shall deliver the reports required by the DIP Loan Documents, including 

Variance Reports (for operating disbursements only, pursuant to the DIP Loan Documents) and 

Financial Reporting Requirements, as required by the DIP Loan Documents. 

5. Superpriority Claims. Subject and subordinate to the Carve Out, pursuant to 

Bankruptcy Code section 364(c)(1), all of the DIP Obligations shall be allowed claims against the 

Debtors, jointly and severally, with priority over any and all administrative expenses (the “DIP 

Superpriority Claims”) and all other claims against the Debtors, now existing or hereafter arising, 

of any kind whatsoever, including, without limitation, all administrative expenses of the kind 

specified in Bankruptcy Code sections 503(b) and 507(b), and over any and all administrative 

expenses or other claims arising under Bankruptcy Code sections 105, 326, 328, 330, 331, 503(b), 

506(c) (subject to entry of the Final Order), 507(a), 507(b), 726, 1113, or 1114, whether or not 

such expenses or claims may become secured by a judgment lien or other non-consensual lien, 

levy, or attachment, which DIP Superpriority Claims shall be payable from and have recourse to 

all prepetition and postpetition property of the Debtors and their Estates and all proceeds thereof 

including, subject to the entry of the Final Order, the proceeds of actions under Chapter 5 of the 

Bankruptcy Code. Other than the Carve Out, no claims (including, without limitation, any priority 

claims) are, or will be, senior to, prior to, or pari passu with the DIP Superpriority Claims or any 

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

under the DIP Loan Documents or otherwise in connection with the DIP Facility. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 76 of 114
18 

4861-1202-7294 

6. DIP Liens and DIP Collateral. As security for the DIP Obligations, effective and 

perfected automatically upon entry of this Interim DIP Order, pursuant to Bankruptcy Code 

sections 364(c)(2) and 364(c)(3),5 and without the necessity of the execution by the Debtors (or 

recordation or other filing or notice) of security agreements, control agreements, pledge 

agreements, financing statements, mortgages, schedules or other similar documents, or the 

possession or control by the DIP Lender of any property, the DIP Lender is hereby granted security 

interests in and liens and mortgages upon all tangible and intangible prepetition and postpetition 

property in which any or each of the Debtors or their respective Estates have an interest of any 

kind or nature, whether existing on or as of the Petition Date or thereafter acquired or created, 

wherever located, including, without limitation, the proceeds, products, and offspring of any of the 

foregoing, including, subject to the entry of the Final DIP Order, proceeds of claims and causes of 

action arising under Bankruptcy Code sections 502(d), 544, 547, 548, 549, 550 and 553 and any 

other avoidance or similar action under the Bankruptcy Code or applicable nonbankruptcy law 

(such claims and causes of action being “Avoidance Actions” and all tangible and intangible 

prepetition and postpetition property in of the Debtors or their estates being, collectively, the “DIP 

Collateral”), subject and subordinate only to the Carve Out (all such liens and security interests 

granted to the DIP Lender, pursuant to this Interim Order and the DIP Loan Documents, the “DIP 

Liens”), will be provided to the DIP Lender as follows: 

a. First Lien on Unencumbered Property. Pursuant to Bankruptcy Code 

section 364(c)(2), a valid, binding, continuing, enforceable, fully perfected first priority lien on, 

and security interest in, all property of the Debtors, wherever located, that is not subject to a valid, 

perfected, non-avoidable and enforceable lien in existence on or as of the Petition Date or valid 

5

 As stated previously, the Court will address priming liens under section 364(d), as and if necessary, at the Final 

Hearing. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 77 of 114
19 

4861-1202-7294 

liens perfected (but not granted) after the Petition Date to the extent such postpetition perfection 

is permitted by Bankruptcy Code section 546(b), including, but not limited to: (i) any and all 

unencumbered cash, accounts receivable, inventory, general intangibles, contracts, securities, 

chattel paper, owned real property, fixtures, machinery, equipment, vehicles, deposit accounts, 

patents, copyrights, trademarks, tradenames, rights under license agreements and other intellectual 

property; and (ii) the proceeds, products and offspring of all of the foregoing. 

b. Liens Junior to Certain Other Liens. Pursuant to Bankruptcy Code section 

364(c)(3), a valid, binding, continuing, enforceable, fully perfected junior security interest in and 

lien upon all tangible and intangible prepetition and postpetition property of the Debtors that, on 

or as of the Petition Date (including pursuant to Bankruptcy Code section 546(b)), is subject to 

valid, perfected and unavoidable liens. 

c. “Last Look” to Avoidance Action Proceeds. Subject to entry of the Final 

DIP Order and the grant of a lien on proceeds of Avoidance Actions (“Avoidance Action 

Proceeds”), the DIP Lender shall only avail itself of Avoidance Action Proceeds on a “last look” 

basis, and only if all other DIP Collateral is inadequate to indefeasibly repay the DIP Obligations 

in full. 

7. Adequate Protection for the Prepetition Lenders. The Prepetition Lenders are 

hereby granted, pursuant to Bankruptcy Code sections 361, 362, 363(c)(2), and 363(e), 

replacement liens on the Prepetition Collateral to the same extent, validity and priority as existed 

prior to the Petition Date (“Adequate Protection Liens”), subject and subordinate only to (i) the 

DIP Liens and (ii) the Carve Out. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 78 of 114
20 

4861-1202-7294 

8. Carve Out. 

a. As used herein, the term “Carve Out” shall mean an amount equal to the 

sum of the following (A) : (i) all fees required to be paid to the Clerk of the Bankruptcy Court and 

to the Office of the United States Trustee under 28 U.S.C. § 1930(a) plus interest pursuant to 31 

U.S.C. § 3717 (without regard to the notice set forth in clause (ii) below); (ii) to the extent allowed 

by the Bankruptcy Court at any time, whether by interim order, final order, or otherwise, all 

accrued and unpaid fees, disbursements, costs and expenses incurred by persons or firms retained 

by the Debtors pursuant to sections 327, 328 or 363 of the Bankruptcy Code (the “Debtor 

Professionals”) and all accrued unpaid fees, disbursements, costs and expenses incurred by the 

Committee (if any) pursuant to sections 328 and 1103 of the Bankruptcy Code (the “Committee 

Professionals,” together with the Debtor Professionals, the “Estate Professionals,” and such Estate 

Professional fees in each case in accordance with the Budget, the “Allowed Professional Fees”) at 

any time before or on the first business day following delivery by the DIP Lender of a Carve Out 

Trigger Notice (as defined below), whether allowed by the Bankruptcy Court prior to or after 

delivery of a Carve Out Trigger Notice; and (iii) Allowed Professional Fees of Estate Professionals 

in an aggregate amount not to exceed $200,000 incurred after the first business day following 

delivery by the DIP Lender of a Carve Out Trigger Notice, to the extent allowed at any time, 

whether by interim order, final order, or otherwise (the amounts set forth in this clause (iii), the 

“Post-Carve Out Trigger Notice Cap”); provided, however, nothing herein shall be construed to 

impair the ability of any party to object to any fees, expenses, reimbursement or compensation 

sought by any such professionals or any other person or entity. 

b. For purposes of the foregoing, “Carve Out Trigger Notice” shall mean a 

written notice (which may be delivered by e-mail (or other electronic means)) by the DIP Lender 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 79 of 114
21 

4861-1202-7294 

to the Debtors and their counsel, the United States Trustee, and counsel to the Committee, and 

filed on the docket of the Chapter 11 Cases, which notice may be delivered following the 

occurrence of an Event of Default, stating that the Post-Carve Out Trigger Notice Cap has been 

invoked. 

c. On a weekly basis—to the extent there is sufficient cash on hand prior to 

entry of the Final DIP Order, and then following entry of the Final DIP Order—the fees of the 

Debtors’ and Committee’s professionals provided for in the Approved Budget shall be funded into 

one of the Debtors’ accounts at East West Bank to be used solely to satisfy Allowed Professional 

Fees in accordance with any applicable orders entered in the Chapter 11 Cases (the “Professional 

Fee Reserve”). The funds on deposit in the Professional Fee Reserve shall be available to satisfy 

the obligations owed to Estate Professionals, and the DIP Lender shall have a security interest on 

any residual amounts remaining in the Professional Fee Reserve after satisfaction in full of all 

Allowed Professional Fees. 

d. For the avoidance of doubt and notwithstanding anything to the contrary 

herein, the Carve Out shall be senior to all liens and claims securing the DIP Facility, and all other 

forms of adequate protection, liens, or claims securing the DIP Obligations. 

e. Notwithstanding the foregoing, the Carve Out shall not include, apply to, or 

be available for any fees or expenses incurred by any party in connection with (i) the initiation or 

prosecution of any claims, causes of action, adversary proceedings, or other litigation (A) against 

the DIP Lender or (B) challenging the amount, validity, perfection, priority, or enforceability of or 

asserting any defense, counterclaim, or offset to, the obligations and the liens and security interests 

granted under the DIP Loan Documents including, in each case, without limitation, for lender 

liability or pursuant to any section of the Bankruptcy Code, applicable non-bankruptcy law or 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 80 of 114
22 

4861-1202-7294 

otherwise; (ii) attempts to modify any of the rights granted to the DIP Lender; (iii) attempts to 

prevent, hinder, or otherwise delay any of the DIP Lender’s assertion, enforcement, or realization 

upon any DIP Collateral in accordance with the DIP Loan Documents, this Interim DIP Order, and 

the Final DIP Order; (iv) paying any amount on account of any claims arising before the 

commencement of the Chapter 11 Cases unless such payments are provided for in the Approved 

Budget and approved by an order of this Court; (v) the prosecution or support any plan of 

liquidation or reorganization to which the DIP Lender has not consented; or (vi) any direct or 

indirect objection or opposition to, or any other effort to impede or compromise in any way, any 

credit bid made by the DIP Lender to the extent such bid is not consistent with this Interim DIP 

Order. 

9. Limitations on Charging Expenses Against Collateral; No Marshaling. Effective 

upon entry of the Final DIP Order, (i) other than as set forth herein with relation to Avoidance 

Action Proceeds, the DIP Lender shall not be subject to the equitable doctrine of “marshaling” or 

any similar doctrine with respect to the DIP Collateral and all proceeds shall be received and 

applied pursuant to the Final DIP Order and the DIP Loan Documents notwithstanding any other 

agreement or provision to the contrary and (ii) the Debtors (on behalf of themselves and their 

estates) shall waive, and shall not assert in the Chapter 11 Cases or any successor cases, any 

surcharge claim under sections 105(a) and/or 506(c) of the Bankruptcy Code or otherwise for any 

costs and expenses incurred in connection with the preservation, protection or enhancement of, or 

realization by the DIP Lender, upon the DIP Collateral. 

10. Use of Prepetition Collateral and Cash. Subject to the terms and conditions of the 

DIP Loan Documents and this Interim DIP Order, and in accordance with the Approved Budget, 

which shall be subject to Permitted Variances, the Debtors are hereby authorized to use the DIP 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 81 of 114
23 

4861-1202-7294 

Collateral and Prepetition Collateral, including cash, until the DIP Termination Date (as defined 

below) for working capital and general corporate purposes, including interest, fees, costs, and 

expenses related to these Chapter 11 Cases, the DIP Loan, and the DIP Loan Documents, including 

payment of any adequate protection obligations as set forth herein; provided, that nothing in this 

Interim DIP Order shall authorize, other than in the ordinary course of the Debtors’ business, the 

sale, transfer, lease, encumbrance, or other disposition of any assets of the Debtors or their Estates 

without the prior written consent of the DIP Lender (and no such consent or direction shall be 

implied from any other action, inaction, or acquiescence by any DIP Lender or any order of this 

Court), except as permitted in the DIP Loan Documents and this Interim DIP Order and approved 

by the Court to the extent required under applicable bankruptcy law. 

11. Perfection of DIP Liens and Adequate Protection Liens. This Interim DIP Order 

shall be sufficient and conclusive evidence of the validity, perfection, and priority of all liens 

granted herein, including the DIP Liens and the Adequate Protection Liens, without the necessity 

of filing or recording financing statements, intellectual property filings, mortgages, notices of lien 

or similar instruments in any jurisdiction, taking possession of or control over, or the taking of any 

other action (including, for the avoidance of doubt, entering into any deposit account control 

agreement) to validate or perfect (in accordance with applicable non-bankruptcy law) the DIP 

Liens and the Adequate Protection Liens, or to entitle the DIP Lender or the Prepetition Lender to 

the priorities granted herein. Notwithstanding the foregoing, the DIP Lender and the Prepetition 

Lender each are hereby authorized, but not required, to file or record financing statements, 

intellectual property filings, mortgages, notices of lien or similar instruments in any jurisdiction, 

taking possession of or control over, or take any other action, as they may elect, in order to validate 

and perfect the liens and security interests granted to them hereunder. Whether or not the DIP 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 82 of 114
24 

4861-1202-7294 

Lender or Prepetition Lender chooses to file such financing statements, intellectual property 

filings, mortgages, notices of lien or similar instruments in any jurisdiction, take possession of or 

control over, or otherwise confirm perfection of the liens and security interests granted to it 

hereunder, such liens and security interests shall be deemed valid, perfected, allowed, enforceable, 

non-avoidable and not subject to challenge, dispute, or subordination immediately upon entry of 

this Interim DIP Order. A certified copy of this Interim Order may, in the discretion of the DIP 

Lender or the Prepetition Lender, as the case may be, be filed with any filing or recording office 

or with any registry of deeds or similar office, and accordingly, each officer is authorized to accept 

such certified copy of this Interim Order for filing and recording. 

12. Evidence of Liens. The Debtors shall execute and deliver promptly to the DIP 

Lender all such financing statements, mortgages, control agreements, notices, and other documents 

as the DIP Lender may reasonably request to evidence, confirm, validate, or perfect the DIP Liens. 

13. Enforceability of DIP Obligations. Subject to entry of the Final DIP Order, if any 

or all of the provisions of this Interim DIP Order are hereafter reversed, modified, vacated, or 

stayed, such reversal, stay, modification, or vacatur shall not affect (a) the validity, priority, or 

enforceability of any DIP Liens or DIP Obligations incurred prior to the effective date of such 

reversal, stay, modification, or vacatur or (b) the validity, priority, or enforceability of the DIP 

Liens. Notwithstanding any such reversal, stay, modification, or vacatur, any use of cash and any 

DIP Obligations incurred by the Debtors to the DIP Lender prior to the effective date of such 

reversal, stay, modification, or vacatur shall be governed in all respects by the original provisions 

of this Interim DIP Order, and the DIP Lender shall be entitled to all of the rights, remedies, 

privileges, and benefits granted in Bankruptcy Code section 364(e), this Interim DIP Order, and 

the DIP Loan Documents. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 83 of 114
25 

4861-1202-7294 

14. Survival of Rights Granted Herein. Except as expressly provided in this Interim 

DIP Order or in the DIP Loan Documents, the Carve Out, the DIP Liens, the DIP Superpriority 

Claims, and all other rights and remedies of the DIP Lender granted by this Interim DIP Order and 

the DIP Loan Documents shall survive, and shall not be modified, impaired, or discharged by (a) 

the entry of an order converting any of the Chapter 11 Cases to a case under chapter 7 of the 

Bankruptcy Code or dismissing any of the Chapter 11 Cases, or (b) the entry of a confirmation 

order and, pursuant to Bankruptcy Code section 1141(d)(4), the Debtors’ waiver of discharge as 

to any remaining DIP Obligations. The terms and provisions of this Interim DIP Order and the 

DIP Loan Documents shall continue in these Chapter 11 Cases and in any Successor Cases, and 

the DIP Liens, the DIP Obligations, the Carve Out, the DIP Superpriority Claims and the other 

administrative claims granted pursuant to this Interim DIP Order, and all other rights and remedies 

of the DIP Lender granted by this Interim DIP Order and the DIP Loan Documents shall continue 

in full force and effect until all DIP Obligations are indefeasibly paid in full in cash or receive 

other treatment as agreed to by the DIP Lender in its sole discretion. 

15. After-Acquired Property. Except as otherwise provided in this Interim DIP Order, 

pursuant to Bankruptcy Code section 552(a), all property acquired by the Debtors on or after the 

Petition Date is not, and shall not be, subject to any lien of any person or entity resulting from any 

security agreement entered into by the Debtors prior to the Petition Date, including, without 

limitation, in respect of the Prepetition Loan Documents (other than with respect to the Adequate 

Protection Liens), except to the extent that such property constitutes proceeds of property of the 

Debtors that is subject to a valid, binding, enforceable, perfected, and unavoidable lien as of the 

Petition Date which is not subject to recharacterization or subordination under the Bankruptcy 

Code, other provisions or principles of applicable law. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 84 of 114
26 

4861-1202-7294 

16. Protection of the Rights of the DIP Lender. Unless the DIP Lender has provided 

its prior written consent, or all DIP Obligations have been indefeasibly paid in full in cash, there 

shall not be entered in any of these Chapter 11 Cases or any Successor Cases any order (including 

any confirmation order) that authorizes any of the following: (a) the obtaining of credit or the 

incurring of indebtedness that is secured by a security, mortgage, or collateral interest or other lien 

on all or any portion of the DIP Collateral and/or that is entitled to administrative priority status, 

in each case that is superior to or pari passu with the DIP Liens, the DIP Obligations, and the DIP 

Superpriority Claims, except as expressly set forth in this Interim DIP Order; (b) the use of cash 

for any purpose other than as permitted in the Approved Budget, DIP Loan Documents, and this 

Interim DIP Order; (c) the return of goods pursuant to Bankruptcy Code section 546(h) (or other 

return of goods on account of any prepetition indebtedness) to any creditor of any Debtor or any 

creditor’s taking any setoff against any of its prepetition indebtedness based upon any such return 

of goods pursuant to Bankruptcy Code section 553 or otherwise; or (d) any modification of any of 

the DIP Lender’s rights under this Interim DIP Order, the DIP Loan Documents with respect to 

any DIP Obligations. 

17. Proceeds of Subsequent Financing. If the Debtors, any trustee, any examiner with 

enlarged powers, any responsible officer, or any other estate representative subsequently appointed 

in the Chapter 11 Cases or any Successor Case, shall obtain credit or incur debt other than the 

credit or debt provided pursuant to the DIP Loan Documents at any time prior to the repayment in 

full of all DIP Obligations, including subsequent to the entry of a confirmation order with respect 

to the Debtors and the Debtors’ Estates, then all cash proceeds derived from such credit or debt 

shall immediately be turned over to the DIP Lender until indefeasible payment in full of the DIP 

Obligations in existence at such time in accordance with the DIP Loan Documents. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 85 of 114
27 

4861-1202-7294 

18. Maturity Date. All DIP Obligations will be due and payable in full in cash unless 

otherwise agreed to by the DIP Lender in writing on the earliest of the following (the “Maturity 

Date”): (i) July 31, 2024, (ii) if the Final DIP Order has not been entered, thirty-five days after the 

Petition Date, (iii) the acceleration of the DIP Loan and the termination of the DIP Commitments 

upon the occurrence of an Event of Default (defined below), (iv) the effective date of any plan of 

reorganization, (v) the date the Court converts any of the Chapter 11 Cases to a case under chapter 

7 of the Bankruptcy Code, (vi) the date the Court dismisses any of the Chapter 11 Cases, (vii) the 

consummation of the sale of all or substantially all of the Debtors’ assets and (viii) the date an 

order is entered in any of the Chapter 11 Cases appointing a chapter 11 trustee or examiner with 

enlarged powers (any such date, the “DIP Termination Date”). Principal of, and accrued interest 

on, the DIP Loan and all other amounts owing to the DIP Lender under the DIP Facility shall be 

payable on the DIP Termination Date. 

19. Case Milestones. The Debtors and the DIP Lender have agreed on the following 

milestones for these Chapter 11 Cases (the “Milestones” and each, a “Milestone”): 

 No later than seven (7) days after filing the Motion, the Court shall have 

entered the Interim DIP Order. 

 No later than fourteen (14) days after the Petition Date, the Debtors shall 

file with the Court a motion (the “Bid Procedures Motion”) to approve procedures 

for the marketing and sale of the Debtors’ assets (the “Bid Procedures Motion”) in 

form and substance reasonably acceptable to the DIP Lender. 

 No later than twenty-one (21) days after the Bid Procedures Motion is filed, 

the Bankruptcy Court shall have entered an order approving the same (the “Bid 

Procedures Order”). The Bid Procedures Order and applicable bid procedures shall, 

consistent with the DIP Term Sheet, authorize and approve the DIP Lender’s credit 

bid of the DIP Obligations, in whole or in part, pursuant to section 363(k) of the 

Bankruptcy Code, for any or all of the Debtors’ assets; 

 Not later than 30 days after entry of the Bid Procedures Order, the Court 

shall have entered an order approving one or more sales of the Debtors’ assets 

(“Sale Order”); and 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 86 of 114
28 

4861-1202-7294 

 No later than thirty-five days after the Petition Date, the Court shall have 

entered the Final DIP Order. 

20. Events of Default. Subject to any applicable cure or any notice period set forth 

below, if any, the Debtors’ right to use proceeds of the DIP Facility shall terminate without prior 

order of this Court or any further action by the DIP Lender, unless waived by the DIP Lender in 

writing and in accordance with the terms of the DIP Loan Documents, on the earliest to occur of 

(each, an “Event of Default”, and the date of any such Event of Default, the “DIP Termination 

Date”): 

 failure to make payments when due under the DIP Loan Documents; 

 invalidity of the DIP Loan Documents; 

 any of the Debtors shall file a pleading seeking to vacate or modify the 

Interim DIP Order or the Final DIP Order over the objection of the DIP Lender; 

 entry of an order without the prior written consent of the DIP Lender 

amending, supplementing or otherwise modifying the Interim DIP Order or the 

Final DIP Order; 

 reversal, vacatur or stay of the effectiveness of the Interim DIP Order or the 

Final DIP Order except to the extent reversed within five (5) Business Days; 

 any violation of any material term of the Interim DIP Order or the Final DIP 

Order by the Debtors; 

 dismissal of the Chapter 11 Case of a Debtor with material assets or 

conversion of the Chapter 11 Case of a Debtor with material assets to a case under 

Chapter 7 of the Bankruptcy Code, or any Debtor shall file a motion or other 

pleading seeking such dismissal or conversion of any of the Chapter 11 Cases; 

 appointment of a chapter 11 trustee or examiner with enlarged powers, or 

any Debtor shall file a motion or other pleading seeking such appointment, 

provided that in such event, the Debtor’s right to use proceeds of the DIP Facility 

shall continue uninterrupted until the earlier of (i) such chapter 11 trustee's 

procurement of replacement financing, or (ii) thirty (30) days from such chapter 

11 trustee’s appointment; 

 any sale of all or substantially all assets of the Debtors pursuant to section 

363 of the Bankruptcy Code, unless such sale is conducted in accordance with the 

Bid Procedures Order; 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 87 of 114
29 

4861-1202-7294 

 failure to meet a Milestone, unless extended or waived by the prior written 

consent of the DIP Lender with a notice of the same to be filed on the Docket of 

the Chapter 11 Cases within three (3) days of the DIP Lender’s waiver, consent or 

extension; 

 the Debtors’ filing of (or supporting another party in the filing of) a motion 

seeking entry of, or the entry of an order by the Court, granting any superpriority 

claim or lien (except as contemplated herein) which is senior to or pari passu with 

the DIP Claims; 

 an order shall be entered in any of the Chapter 11 Cases, without the prior 

written consent of the DIP Lender: (i) permitting any administrative expense or 

any claim (now existing or hereafter arising of any kind or nature whatsoever) to 

have priority equal or superior to the DIP Claims (other than the Carve Out) or (ii) 

granting or permitting the grant of a lien that is equal in priority or senior to the 

DIP Liens (other than the Carve Out); 

 two or more members of the Debtors’ Executive Management Team resign 

or otherwise terminate their employment relationship with the Debtor. The term 

“Executive Management Team” shall be defined in the DIP Facility Documents 

as including the C-Suite executives and such other key employees as the Debtor 

may expressly identify; 

 the Debtors’ filing of a motion seeking entry of an order approving any key 

employee incentive plan, employee retention plan, or comparable plan, without 

the prior written consent of the DIP Lender; 

 cessation of the DIP Liens or the DIP Claims to be valid, perfected and 

enforceable in all respects; 

 Permitted Variances under the Budget are exceeded for any period of time 

without consent of or waiver by the DIP Lender; 

 subject to entry of the Final DIP Order, the allowance of any claim or claims 

under section 506(c) of the Bankruptcy Code or otherwise against any DIP Lender; 

 an order shall have been entered by the Court prohibiting, limiting or 

restricting the right of the DIP Lender to credit bid for any or all of the Debtors’ 

assets; and 

 the payment of any prepetition claim other than (i) as consented to by the 

DIP Lender, (ii) as authorized by the Approved Budget, (iii) permitted under the 

terms of the DIP Credit Agreement or (iv) as authorized by an order entered by the 

Court, including the Interim DIP Order or the Final DIP Order and reflected in the 

Approved Budget. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 88 of 114
30 

4861-1202-7294 

21. Rights and Remedies Upon Event of Default. Upon the occurrence and during the 

continuance of an Event of Default, the DIP Lender shall, by written notice to the Debtors, its 

counsel, the U.S. Trustee and counsel for the Committee, terminate the DIP Facility, declare the 

obligations in respect thereof to be immediately due and payable and, subject to the immediately 

following paragraph, exercise all rights and remedies under the DIP Loan Documents, the Interim 

DIP Order, and the Final DIP Order. Without further order from the Bankruptcy Court, and subject 

to the terms of the Interim DIP Order and the Final DIP Order (including in respect of any required 

notices), the automatic stay provisions of section 362 of the Bankruptcy Code shall be vacated and 

modified to the extent necessary to permit the DIP Lender to exercise, upon the occurrence and 

during the continuance of any Event of Default under their respective DIP Loan Documents, all 

rights and remedies provided for in the DIP Loan Documents, and to take any or all of the 

following actions without further order of or application to the Bankruptcy Court (as applicable): 

(a) immediately terminate the Debtors’ limited use of any cash collateral; (b) cease making any 

DIP Loan under the DIP Facility to the Debtors; (c) declare all DIP Obligations to be immediately 

due and payable; (d) freeze monies or balances in the Debtors’ accounts (and, with respect to the 

DIP Credit Agreement and the DIP Facility, sweep all funds contained in the Controlled 

Accounts); (e) immediately set-off any and all amounts in accounts maintained by the Debtors 

with the DIP Lender against the DIP Obligations, or otherwise enforce any and all rights against 

the DIP Collateral in the possession of any of the applicable DIP Lender, including, without 

limitation, disposition of the DIP Collateral solely for application towards the DIP Obligations; 

and (f) take any other actions or exercise any other rights or remedies permitted under the Interim 

DIP Order and the Final DIP Order, the DIP Loan Documents or applicable law to effect the 

repayment of the DIP Obligations; provided, however, that the DIP Lender must provide the 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 89 of 114
31 

4861-1202-7294 

Debtors, the U.S. Trustee and the Committee with five (5) calendar days’ written notice (which 

may be by email) and file such notice onf the Docket of the Chapter 11 Cases before exercising 

any enforcement rights or remedies; provided, further, that neither the Debtors, the Committee nor 

any other party-in-interest shall have the right to contest the enforcement of the remedies set forth 

in the Interim DIP Order and the Final DIP Order and the DIP Loan Documents, other than to 

argue that an Event of Default and/or a DIP Termination Date has not occurred. Further, the 

Debtors are deemed to waive any right, without the prior written consent of the DIP Lender, to 

seek relief under the Bankruptcy Code, including under section 105 thereof, to the extent such 

relief would restrict or impair the rights and remedies of the DIP Lender set forth in the Interim 

DIP Order and the Final DIP Order and in the DIP Loan Documents. 

22. Financial Reporting. 

a. Permitted Variance. The term “Permitted Variances” will mean, for the first 

full week period after the Closing Date, to be tested on the third business day of each week 

following the end of such week period (the “Initial Testing Period”) and for the Applicable Rolling 

Period (as defined below) after the Initial Testing Period (each such period after the Initial Testing 

Period, together with the Initial Testing Period, the “Testing Periods”): (i) all favorable variances, 

and (ii) an unfavorable variance of no more than 10% for actual operating disbursements (on an 

aggregate basis), in each case as compared to the budgeted disbursements, respectively, set forth 

in the Budget with respect to the applicable Testing Period; notwithstanding the foregoing, 

Professional Fees shall be excluded from the determination of Permitted Variances. The Permitted 

Variances with respect to each Testing Period shall be determined and reported to the DIP Lender 

not later than 5:00 p.m. Central Time on the third business day of each week immediately following 

the end of each such Testing Period. Additional variances, if any, from the Budget, and any 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 90 of 114
32 

4861-1202-7294 

proposed changes to the Budget, shall be subject to the approval of the DIP Lender. Variances 

will be reported on a cumulative basis matching the relevant Applicable Rolling Period in a format 

replicating the Budget and will include explanation of variances (including whether they are 

permanent or temporal in nature). Variances will be carried over across Applicable Rolling 

Periods solely to the extent they are permanent in nature. “Applicable Rolling Period” means, (i) 

for the Initial Testing Period, the most recently completed calendar week, (ii) for the second 

Testing Period after the Closing Date, the most recently completed two calendar weeks, (iii) for 

the third Testing Period after the Closing Date, the most recently completed three calendar weeks 

and (iv) for each Testing Period thereafter, the most recently completed four calendar weeks. 

b. Other Reporting. The Debtors shall provide to the DIP Lender (hereinafter 

the “Financial Reporting Requirements”): (i) following delivery of the Approved Budget on the 

Closing Date, by not later than 5:00 p.m. Eastern Time on the third business day of the second full 

week following the Closing Date and by not later than 5:00 p.m. Eastern Time on the third business 

day of every other week thereafter following the end of each Testing Period, an updated Budget, 

in each case, in form and substance reasonably satisfactory to the DIP Lender for the subsequent 

13 week period consistent with the form of the Budget, and such updated Budget shall become the 

“Budget” for the purposes of the DIP Facility upon the DIP Lender’s acknowledgement that the 

proposed updated Budget is substantially in the form of the Budget and in substance satisfactory 

to the DIP Lender (provided, that, until a new Budget has been approved by the DIP Lender, the 

most recently approved Budget shall govern); and (ii) beginning on the third business day of the 

first full week following the Closing Date (by not later than 5:00 p.m. Eastern Time), and on the 

third business day of each week thereafter following the end of each Testing Period (by not later 

than 5:00 p.m. Eastern Time), a variance report (the “Variance Report”) setting forth actual cash 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 91 of 114
33 

4861-1202-7294 

receipts and disbursements and cash flows of the Debtors for the prior Testing Period and setting 

forth all the variances, on a line-item and aggregate basis, from the amount set forth for such period 

as compared to the applicable Budget delivered by the Debtors, in each case, on a weekly and 

cumulative rolling 4-week basis (and each such Variance Report shall include explanations for all 

material variances and shall be certified by the Chief Financial Officer of the Debtors). The 

Debtors will promptly provide notice to the DIP Lender of any Material Adverse Change. 

c. Meetings with DIP Lender. At the election of the DIP Lender, on each 

Monday (or, in the event that such day is not a business day then on the business day immediately 

following or on a day mutually agreed upon by the DIP Lender and the Borrower’s senior 

management and professionals) during the Chapter 11 Cases, the Debtors’ senior management and 

professionals shall host a telephonic meeting for the DIP Lender and their professionals at which 

the Debtors’ senior management and professionals shall provide an update to the DIP Lender (and 

make themselves available for questions) with respect to the financial and operating performance 

of the Debtors and their Estates, including, but not limited to, the Variance Report. 

23. Interim DIP Order Controls. This Interim DIP Order shall constitute this Court’s 

findings of fact and conclusions of law based upon the record of these Chapter 11 Cases at the 

Interim Hearing and shall, upon its entry by this Court, take effect and be fully enforceable as of 

the Petition Date. In the event of any inconsistency between the terms and conditions of the DIP 

Loan Documents or this Interim DIP Order, the provisions of this Interim DIP Order shall govern 

and control. 

24. Binding Effect of Interim DIP Order. Immediately upon entry by the Court 

(notwithstanding any applicable law or rule to the contrary), the terms and provisions of this 

Interim DIP Order, including the liens granted herein shall, effective as of the Petition Date, 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 92 of 114
34 

4861-1202-7294 

become valid and binding upon and inure to the benefit of the Debtors, the DIP Lender, the 

Committee, the U.S. Trustee, and all other parties in interest and their respective successors and 

assigns, including any trustee or other fiduciary hereafter appointed in these Chapter 11 Cases, any 

Successor Case, or upon dismissal of the Chapter 11 Cases or any Successor Case. 

25. Costs, Fees, and Expenses of the DIP Lender. 

a. DIP Lender Reimbursements. Subject to the provisions set forth herein, the 

Debtors are authorized to pay, when due and payable, the DIP Lender Reimbursements, including, 

without limitation, (i) (x) all reasonable and documented (in summary form) out-of-pocket fees, 

costs, disbursements and expenses of the DIP Lender (including, but limited in the case of counsel, 

to all reasonable and documented (in summary form) out-of-pocket fees, costs, disbursements and 

expenses of the DIP Lender’s counsels, and any successor counsel to each), in each case in 

connection with the negotiations, preparation, execution and delivery of the DIP Loan Documents 

and the funding of all DIP Loan under the DIP Facility, including, without limitation, all due 

diligence, transportation, computer, duplication, messenger, audit, insurance, appraisal, valuation 

and consultant costs and expenses, and all search, filing and recording fees, incurred or sustained 

by the DIP Lender and its counsel and professional advisors in connection with the DIP Facility, 

the DIP Loan Documents or the transactions contemplated thereby, the administration of the DIP 

Facility and any amendment or waiver of any provision of the DIP Loan Documents, and (ii) 

without duplication, all reasonable and documented (in summary form) out-of-pocket fees, costs, 

disbursements and expenses of the DIP Lender (including, but limited in the case of counsels, to 

all reasonable and documented (in summary form) out-of-pocket fees, costs, disbursements and 

expenses of outside counsels to the DIP Lender (and any successor counsel), and, to the extent 

necessary, one firm of local counsel engaged by the DIP Lender in each relevant jurisdiction, and 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 93 of 114
35 

4861-1202-7294 

any successor counsel to such primary counsel and local counsel, in each case in connection with 

(A) the enforcement of any rights and remedies under the DIP Loan Documents, (B) the Chapter 

11 Cases, including attendance at all hearings in respect of the Chapter 11 Cases; and (C) defending 

and prosecuting any actions or proceedings arising out of or relating to the DIP Obligations, the 

Liens securing the DIP Obligations, or any transaction related to or arising in connection with the 

DIP Credit Agreement or the other DIP Loan Documents. 

b. Process and Procedure. Payment of the DIP Lender Reimbursements shall 

not be subject to allowance by the Court but shall be subject to the following process. At the same 

time such remittance advices are delivered to the Debtors, the professionals for the DIP Lender 

shall deliver a copy of their respective remittance advices to counsel for the Committee and the 

U.S. Trustee. The remittance advices for such fees and expenses shall not be required to comply 

with any U.S. Trustee guidelines related to the payment of fees and expenses of retained estate 

professionals, may be in summary form only, and shall not be subject to application or allowance 

by the Court. Any objections raised by the Debtors, the Office of the U.S. Trustee or the Committee

with respect to such remittance advices within five (5) calendar days of receipt thereof will be 

resolved by the Court (absent prior consensual resolution thereof). Pending such resolution, the 

undisputed portion of any such remittance advices shall be promptly paid by the Debtors. Except 

as otherwise ordered by the Court in the event an objection is timely filed, such fees and expenses 

shall not be subject to any setoff, defense, claim, counterclaim, or diminution of any type, kind, or 

nature whatsoever. 

26. Right to Credit Bid. Subject to Bankruptcy Code section 363(k) and the terms of 

the DIP Loan Documents and the Carve Out, the DIP Lender shall have the right to credit bid all 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 94 of 114
36 

4861-1202-7294 

or any portion of the DIP Obligations as part of any asset sale process, whether conducted pursuant 

to Bankruptcy Code sections 363 or 1129, or otherwise. 

27. Indemnification of DIP Lender. The DIP Lender shall have no liability to any third 

party and shall not be deemed to be in control of the operations of Debtors, or to be acting as a 

“responsible person” or managing agent with respect to the operation or management of the 

Debtors. The Debtors shall indemnify and hold harmless the DIP Lender and their respective 

affiliates and officers, directors, employees, agents, and advisors to the extent set forth in the DIP 

Term Sheet; provided that any claim for indemnity under this paragraph must be brought before 

this Court for approval. For the avoidance of doubt, the DIP Lender shall not be indemnified for 

willful misconduct, gross negligence, or criminal acts. No indemnification shall be granted that 

violates applicable law in the Fifth Circuit.

28. Good Faith Under Section 364(e). The DIP Lender has acted in good faith in 

connection with the DIP Loan Documents, including this Interim DIP Order, and is entitled to rely 

upon the protections granted herein and by section 364(e) of the Bankruptcy Code. 

29. Interim Compensation Procedures. The DIP Lender hereby consents to entry of an 

order, to be entered contemporaneously with, or after the entry of, this Interim DIP Order, in a 

form reasonably acceptable to the DIP Lender. 

30. Rights Preserved. Other than as expressly set forth in this Interim DIP Order, any 

other rights, claims, or privileges (whether legal, equitable, or otherwise) of the DIP Lender and 

the Prepetition Lenders are preserved. 

31. No Waiver by Failure to Seek Relief. The failure or delay of the DIP Lender to seek 

relief or otherwise exercise its respective rights and remedies under this Interim DIP Order, the 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 95 of 114
37 

4861-1202-7294 

DIP Loan Documents, or applicable law, as the case may be, shall not constitute a waiver of any 

of the rights hereunder, thereunder, or otherwise of the DIP Lender. 

32. No Third Party Rights. Except as explicitly provided for herein, this Interim DIP 

Order does not create any rights for the benefit of any third party, creditor, equity holder, or any 

direct, indirect, or incidental beneficiary. 

33. Immediate Enforceability. This Interim DIP Order shall constitute findings of fact 

and conclusions of law pursuant to Bankruptcy Rule 7052 and shall take effect and be fully 

enforceable as of the Petition Date immediately upon execution hereof. Notwithstanding 

Bankruptcy Rules 4001(a)(3), 6004(h), 6006(d), 7062, or 9024 or any other Bankruptcy Rule, or 

Rule 62(a) of the Federal Rules of Civil Procedure, this Interim DIP Order shall be immediately 

effective and enforceable upon its entry and there shall be no stay of execution or effectiveness of 

this Interim DIP Order. Good cause has been shown for immediate entry of this Interim Order 

pursuant to Bankruptcy Rules 4001(b)(2) and (c)(2). 

34. Retention of Jurisdiction. The Court retains jurisdiction to enforce this Interim DIP 

Order according to its terms to the fullest extent permitted by applicable law. 

35. Final Hearing. The Final Hearing to consider entry of the Final DIP Order is 

scheduled for February 15, 2024 at 9:30 a.m. (CT) before the Honorable Michelle V. Larson, 

United States Bankruptcy Judge, at the United States Bankruptcy Court for the Northern District 

of Texas, Dallas Division, Earle Cabell Federal Building, 1100 Commerce St., Courtroom #2, 

Dallas, TX 75242-1496. 

36. Notice of Final Hearing. Within three (3) Business Days of the date of the entry of 

this Interim DIP Order, the Debtors shall serve a copy of the Motion and this Interim DIP Order 

upon: (a) the U.S. Trustee; (b) the Internal Revenue Service; (c) the parties included on the 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 96 of 114
38 

4861-1202-7294 

Debtors’ consolidated list of thirty (30) largest unsecured creditors; (d) counsel to the DIP Lender; 

(e) counsel to the Prepetition Lenders; (f) financial institutions where the Debtors hold bank 

accounts; and (g) any party that has filed prior to such date a request for notices under Bankruptcy 

Rule 2002 with the Court. 

37. Objection Deadline. Objections, if any, to the relief sought in the Motion and entry 

of the Final DIP Order shall be in writing, shall set forth with particularity the grounds for such 

objections or other statement of position, shall be filed with the Clerk of the Court, and personally 

served upon: (a) proposed counsel to the Debtors; (b) the U.S. Trustee; (c) proposed counsel to 

any Committee; and (d) counsel to the DIP Lender so that such objections are filed with the Court 

and received by said parties on or before 4:00 p.m. (CT) on February __, 2024. 

# # # END OF ORDER # # # 

Submitted by: 

Jason S. Brookner (TX Bar No. 24033684) 

Amber M. Carson (TX Bar No. 24075610) 

Emily F. Shanks (TX Bar No. 24110350) 

GRAY REED 

1601 Elm Street, Suite 4600 

Dallas, Texas 75201

Telephone: (214) 954-4135 

Facsimile: (214) 953-1332 

Email: jbrookner@grayreed.com 

 acarson@grayreed.com 

 eshanks@ grayreed.com 

 

Proposed Counsel to the Debtors 

and Debtors in Possession 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 97 of 114
4861-1202-7294 

Exhibit 1 

Dip Term Sheet 

 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 98 of 114
278261410 v5 

4873-0781-6093 

EYE CARE LEADERS HOLDINGS, LLC. 

SUPERPRIORITY SECURED 

DEBTOR-IN-POSSESSION CREDIT FACILITY TERM SHEET 

Summary of Proposed Terms and Conditions 

This Summary of Terms and Conditions (this “DIP Term Sheet”) outlines certain terms of the DIP Facility 

(as defined herein) to be provided by the DIP Lender (as defined herein) subject to the conditions herein 

and as set forth more fully below and subject to such definitive documentation as the parties may agree to 

(collectively, and as defined further herein, the “DIP Facility Documents”). The Loan Parties are not 

authorized to disclose the terms contained herein to any person other than their professional advisors, who 

shall agree to maintain its confidentiality; provided, however, that the Loan Parties may, following 

agreement on definitive terms, disclose such terms in any pleading required to be filed in the Bankruptcy 

Court. 

Borrower: Eye Care Leaders Portfolio Holdings, LLC, a North Carolina limited liability 

company (“ECL Holdings”), and its affiliated chapter 11 debtors (collectively, the 

“ECL Debtors,” each a “Borrower” and together the “Borrowers” or “you”), each in 

their capacity as a debtor and debtor in possession (each individually a “Loan Party” 

and a “Debtor”, and collectively, the “Loan Parties” and the “Debtors”), in Jointly 

Administered Case No. 24-80001, captioned In re Eye Care Leaders Portfolio 

Holdings, LLC, et al. (collectively the “Chapter 11 Cases”), pending in the United 

States Bankruptcy Court for the Northern District of Texas, Dallas Division (the 

“Bankruptcy Court”).1

 

 

DIP Lender: Create Capital, LLC, a Delaware limited liability company will, either directly or 

through one or more U.S. affiliates (collectively, the “DIP Lender”), provide the 

funds for the DIP Facility (as defined below) and provide the DIP Commitments (as 

defined herein). 

Type and 

Amount of the 

DIP Facility:

Subject to the terms and conditions herein, the DIP Lender shall provide a secured 

superpriority priming debtor in possession non-amortizing facility (the “DIP 

Facility”) comprised of a term loan in the principal amount of $8.0 million, of which 

(i) $1.3 million (the “Interim Funding”) will be available upon entry of an interim 

order by the Bankruptcy Court, in a form acceptable to the DIP Lender in all 

respects, approving the terms and conditions of the DIP Facility (the “Interim DIP 

1

 The Debtors in the Chapter 11 Cases and the last four digits of each Debtors’ federal tax identification number are 

as follows: ECL PH Services Group LLC (6746); Eye Care Leaders Portfolio Holdings, LLC (0576); Alta Billing 

Holdings, LLC (4944); Alta Billing, LLC (4823); Canta Health, LLC (7791); DJRTC, LLC (N/A); ECL Group, LLC 

(9195); ECL Holdings, LLC (8888); Eye Care Leaders Holdings, LLC (1701); iMedicWare, Inc. (6251); IMW EMR, 

LLC (6421); IMW Holdings, LLC (3980); Insight Software, LLC (8321); Integrity EMR Holdings, LLC (3877); 

Integrity EMR, LLC (3716); IO Practiceware, Inc. (4507); IOPW Holdings, LLC (0461); IOPW, LLC (N/A); Keymed 

Holdings, LLC (0301); Keymed, LLC (9379); MD Office, LLC (9075); MDO Group Holdings, LLC (0435); MDX, 

LLC (5074); Medflow Holdings, LLC (7716); Medflow, Inc. (N/A); MNI Holdings, LLC (7633); MRX Holdings, 

LLC (N/A); My Vision Express, Inc. (N/A); Penn Medical Informatics Systems, LLC (4584); PI Software Holdings, 

LLC (N/A); PI Software, LLC (N/A); PMX, LLC (N/A); Revenue Health Solutions, LLC (7025); RHS Holdings, 

LLC (N/A); The Hoehne Group – Software Division, Inc. (7788). The Debtors’ principal offices are located at 555 

S. Mangum Street, Suite 100, Durham, NC 27701 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 99 of 114
278261410 

2 

4873-0781-6093 

Order”) and (ii) the remaining $6.7 million will be available upon entry of a final 

order by the Bankruptcy Court, in a form acceptable to the DIP Lender in all 

respects, approving the DIP Facility on a final basis (the “Final DIP Order” and 

together with the Interim DIP Order the “DIP Orders”). The DIP Lender’s 

commitments under the DIP Facility are referred to as the “DIP Commitments”; the 

loan under the DIP Facility is referred to as the “DIP Loan”; the DIP Lender’s claim 

under the DIP Facility is referred to as the “DIP Claim” or “DIP Claims”; and 

proceeds received by the Borrowers from the DIP Loan are referred to as the “DIP 

Proceeds”. 

Following the Closing Date (as defined below) and conditioned upon entry of the 

Interim DIP Order or the Final DIP Order, as appropriate, DIP Loan funds may be 

drawn by the Debtors in multiple draws (in a manner consistent with the “use of 

proceeds” set forth below); provided that the total amount of all draws incurred 

before entry of the Final DIP Order shall not exceed $1.3 million. 

Once repaid, DIP Proceeds cannot be reborrowed. 

Credit Bidding: The DIP Orders and the related DIP Facility Documents shall provide that, in 

connection with any sale of any of the Debtors’ assets under section 363 of the 

Bankruptcy Code or under a plan of reorganization, the DIP Lender shall have the 

right to credit bid all amounts then-outstanding under the DIP Facility (including 

any accrued interest and fees) in accordance with Section 363(k) of the Bankruptcy 

Code. 

Closing Date: The date of the satisfaction or waiver by the DIP Lender of the relevant “Conditions 

Precedent to Borrowing DIP Loan” set forth below (the “Closing Date”). 

Maturity: All DIP Obligations (as defined herein) will be due and payable in full in cash unless 

otherwise agreed to by the DIP Lender in writing on the earliest of: (i) July 31, 2024, 

(ii) if the Final DIP Order has not been entered, thirty-five days after the Petition 

Date, (iii) the acceleration of the DIP Loan and the termination of the DIP 

Commitments upon the occurrence of an event referred to below under 

“Termination”, (iv) the effective date of any plan of reorganization, (v) the date the 

Bankruptcy Court converts any of the Chapter 11 Cases to a case under chapter 7 of 

the Bankruptcy Code, (vi) the date the Bankruptcy Court dismisses any of the 

Chapter 11 Cases, (vii) the consummation of the sale of all or substantially all of the 

Borrowers’ assets and (viii) the date an order is entered in any Bankruptcy Case 

appointing a Chapter 11 trustee or examiner with enlarged powers (any such date, 

the “DIP Termination Date”). Principal of, and accrued interest on, the DIP Loan 

and all other amounts owing to the DIP Lender under the DIP Facility shall be 

payable on the DIP Termination Date (the “Repaid Amount”). 

Budget: The “Budget” shall consist of a standard 13-week operating budget setting forth all 

forecasted receipts and disbursements on a weekly basis for such 13-week period 

beginning as of the week of the Petition Date, on a line item basis, including, among 

other things, expected draws under the DIP Facility, available cash, trade payables 

and ordinary course expenses, fees and expenses relating to the DIP Facility, fees 

and expenses related to the Chapter 11 Case (including US Trustee fees and 

professional fees), which Budget shall be in form and substance satisfactory to and 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 100 of 114
278261410 

3 

4873-0781-6093 

approved by the DIP Lender (such Budget shall be supplemented in the manner 

required pursuant to the “Financial Reporting Requirements” section below). 

Use of Proceeds: The DIP Loan shall be used solely in accordance with the Budget (including 

Permitted Variances (as defined below)) and the terms and conditions of the DIP 

Credit Agreement, and the DIP Orders, including (but subject to the Budget) to (i) 

provide working capital and for other general corporate purposes of the Debtors, (ii) 

fund the costs of the administration of the Chapter 11 Case (including US Trustee 

fees and professional fees and expenses) and the section 363 sale process, and (iii) 

fund interest, fees, and other payments contemplated in respect of the DIP Facility. 

The DIP Loan shall be funded in periodic installments, not more frequently than 

weekly, in amounts designed to coincide with the approved Budget and cash flow 

requirements forecasted therein. For the avoidance of doubt, the Borrowers 

understand and agree a permitted use shall be to pay the DIP Lender’s reasonable 

costs. fees and expenses relating to the DIP Loan, which shall be paid as set forth in 

the DIP Facility Documents and the DIP Orders, 

Documentation: While the DIP Facility initially will be defined pursuant to the terms of this DIP 

Term Sheet and the Interim DIP Order, the DIP Facility will be evidenced by a credit 

agreement (the “DIP Credit Agreement”), which shall be filed with the Bankruptcy 

Court and approved in final form in the Final DIP Order. The DIP Credit Agreement 

shall be in a form and substance satisfactory to the DIP Lender, and shall reflect the 

terms set forth in this DIP Term Sheet and the nature of the DIP Facility as a debtor 

in possession facility. The parties shall also execute such other ancillary documents 

as the DIP Lender may require (such ancillary documents, collectively with the DIP 

Credit Agreement, the “DIP Facility Documents”). The DIP Facility Documents 

shall be in a form and substance satisfactory to the DIP Lender. 

Controlled 

Accounts: 

The Debtors shall maintain all existing deposit accounts (other than excluded 

accounts to be agreed) and each such deposit account shall remain or become subject 

to a perfected lien and control pursuant to the terms of the DIP Orders or, as may be 

requested by the DIP Lender, an enforceable control agreement in favor of the DIP 

Lender (any such account, a “Controlled Account”). The DIP Credit Agreement, 

and the DIP Orders (as applicable) shall require the Debtors to maintain the DIP 

Proceeds in the Controlled Accounts except as permitted to be used in accordance 

with the Budget and shall prohibit the Debtors from withdrawing funds from the 

Controlled Accounts after the occurrence and during the continuance of an Event of 

Default under the DIP Credit Agreement; provided, however, that the Debtors shall 

be permitted to fund the Carve-Out and pay ordinary course administrative claims 

up to $200,000 in accordance with the terms of the Budget after an Event of Default. 

Interest: The DIP Loan will bear interest at a fixed rate per annum equal to 15%, accruing 

monthly, payable in arrears and payable in kind. 

Interest shall be calculated on the basis of the actual number of days elapsed in a 

360-day year. 

Default Interest: Upon the occurrence of and during the continuance of an Event of Default under the 

DIP Credit Agreement, the DIP Loan and all DIP Obligations shall bear interest at 

an additional 2.00% per annum. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 101 of 114
278261410 

4 

4873-0781-6093 

Fees: An origination fee of $300,000 (the “Origination Fee”), which shall be earned and 

payable upon entry of the Interim DIP Order, and payable by the Debtors to the DIP 

Lender immediately upon the delivery of the Interim Funding after the Closing Date. 

For the avoidance of doubt, the payment of the fee will be in the form of an offset 

to the Interim Funding amount such that the DIP Lender will retain $300,000 of the 

$1,300,000 of Interim Funding in satisfaction of the obligation. 

A closing fee equal to $200,000 (the “Closing Fee”), which shall be earned upon 

entry of the Interim DIP Order, and payable upon the earlier of (i) the DIP 

Termination Date, or (ii) the closing of a sale following entry of a Sale Order (as 

defined below); provided, however, that no Closing Fee shall be payable if the DIP 

Lender is the successful bidder for the Debtors’ assets. 

 Voluntary 

Prepayments: 

All or any portion of the DIP Loan may be voluntarily repaid at any time, without 

premium or penalty. 

 

Priority and 

Security under 

DIP Facility: 

All obligations of the Borrowers to the DIP Lender under the DIP Facility, including, 

without limitation, all principal and accrued interest, premiums (if any), costs, fees 

and expenses or any other amounts due (collectively, the “DIP Obligations”), shall 

be secured by the following liens and security interests (the “DIP Liens”): 

(a) subject to the Carve Out, and subject to entry of the Final DIP Order, 

pursuant to section 364(d)(1) of the Bankruptcy Code, a first priority perfected 

senior priming lien on, and security interest in, substantially all of the assets of the 

Borrowers, wherever located, that may be subject to a validly perfected security 

interest in existence on the Petition Date;2

(b) subject to the Carve Out, pursuant to section 364(c)(2) of the Bankruptcy 

Code, a first priority perfected lien on, and security interest in, all present and after 

acquired property of the Debtors, wherever located, not subject to a lien or security 

interest on the date of commencement of the Chapter 11 Cases (collectively, the 

“Unencumbered Property”); 

(c) subject to the Carve Out, pursuant to section 364(c)(3) of the Bankruptcy 

Code, a junior perfected lien on, and security interest in, all present and afteracquired property of the Debtors, wherever located, that is subject to a Permitted 

Lien (as to be defined in the DIP Credit Agreement) on the Petition Date or subject 

to a Permitted Lien in existence on the Petition Date that is perfected subsequent 

thereto as permitted by section 546(b) of the Bankruptcy Code; and 

(d) subject to the Carve Out, a first priority perfected lien on, and security 

interest in, all funds on deposit in the Controlled Accounts. 

The property referred to in the preceding clauses (a) through (d) is collectively 

referred to as the “DIP Collateral” and shall include, without limitation, all assets 

(whether tangible, intangible, personal or mixed) of the Borrowers, whether now 

2

 For purposes of the Interim DIP Order only, the DIP Lender will receive a junior lien pursuant to 364(c)(3) of the 

Bankruptcy Code on the assets of Insight Software, LLC, Keymed, LLC, MD Office, LLC and MRX Holdings, LLC. 

If the DIP Lender is not afforded a senior priming lien on the assets of these entities as part of the Final DIP Order, 

the DIP Lender reserves the right to lower the DIP Commitment in its sole discretion. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 102 of 114
278261410 

5 

4873-0781-6093 

owned or hereafter acquired and wherever located, before or after the Petition Date, 

including, without limitation, all accounts, proceeds of leases, inventory, equipment, 

equity interests or capital stock in subsidiaries, investment property, instruments, 

chattel paper, real estate, leasehold interests, contracts, patents, copyrights, 

trademarks and other general intangibles, the proceeds of all claims or causes of 

action (including upon entry of the Final DIP Order, proceeds of avoidance actions 

under chapter 5 of the Bankruptcy Code) and all products, offspring, profits and 

proceeds thereof; provided however the DIP Lender shall only avail itself of 

proceeds from avoidance actions, on a “last look” basis, and only if all other 

Collateral is inadequate to indefeasibly repay the DIP Obligations in full. 

The DIP Liens shall be effective and perfected as of the entry of the Interim DIP 

Order (subject to the occurrence of the Closing Date) and without necessity of the 

execution, filing or recording of control agreements, financing statements or other 

agreements. However, the DIP Lender may, in its discretion, require the execution, 

filing or recording of any or all of the documents described in the preceding 

sentence. 

Notwithstanding the foregoing, the DIP Collateral shall not include (and the DIP 

Liens shall not extend to) assets scheduled and held by the Debtors in trust (but only 

for so long as such assets are held in trust). 

Superpriority 

DIP Claims: 

All DIP Claims shall be entitled to the benefits of section 364(c)(1) of the 

Bankruptcy Code, having superpriority over any and all administrative expenses of 

the kind that are specified in sections 105, 326, 328, 330, 331, 503(b), 506(c), 507(a), 

507(b), 546(c), 726, 1114 or any other provisions of the Bankruptcy Code, subject 

only to the Carve Out. 

The DIP Claims will, at all times during the period that the DIP Loan remains 

outstanding, remain, in right of payment, senior in priority to all other claims or 

administrative expenses, subject only to the Carve Out. 

Carve Out: “Carve Out” means an amount equal to the sum of the following (A) : (i) all fees 

required to be paid to the Clerk of the Bankruptcy Court and to the Office of the 

United States Trustee under 28 U.S.C. § 1930(a) plus interest pursuant to 31 U.S.C. 

§ 3717 (without regard to the notice set forth in clause (ii) below); (ii) to the extent 

allowed by the Bankruptcy Court at any time, whether by interim order, final order, 

or otherwise, all accrued and unpaid fees, disbursements, costs and expenses 

incurred by persons or firms retained by the Debtors pursuant to sections 327, 328 

or 363 of the Bankruptcy Code (the “Debtor Professionals”) and all accrued unpaid 

fees, disbursements, costs and expenses incurred by the Committee (if any) pursuant 

to sections 328 and 1103 of the Bankruptcy Code (the “Committee Professionals,” 

together with the Debtor Professionals, the “Estate Professionals,” and such Estate 

Professional fees in each case in accordance with the Budget, the “Allowed 

Professional Fees”) at any time before or on the first business day following delivery 

by the DIP Lender of a Carve Out Trigger Notice (as defined below), whether 

allowed by the Bankruptcy Court prior to or after delivery of a Carve Out Trigger 

Notice; and (iii) Allowed Professional Fees of Estate Professionals in an aggregate 

amount not to exceed $200,000 incurred after the first business day following 

delivery by the DIP Lender of a Carve Out Trigger Notice, to the extent allowed at 

any time, whether by interim order, final order, or otherwise (the amounts set forth 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 103 of 114
278261410 

6 

4873-0781-6093 

in this clause (iii), the “Post-Carve Out Trigger Notice Cap”); provided, however, 

nothing herein shall be construed to impair the ability of any party to object to any 

fees, expenses, reimbursement or compensation sought by any such professionals or 

any other person or entity. For purposes of the foregoing, “Carve Out Trigger 

Notice” shall mean a written notice (which may be delivered by e-mail (or other 

electronic means)) by the DIP Lender to the Debtors and their counsel, the United 

States Trustee, and lead counsel to any Committee appointed in the Chapter 11 

Cases, and filed on the docket of the Chapter 11 Cases, which notice may be 

delivered following the occurrence of an Event of Default, stating that the PostCarve Out Trigger Notice Cap has been invoked. 

On a weekly basis—to the extent there is sufficient cash on hand prior to entry of 

the Final DIP Order, and then following entry of the Final DIP Order—the fees of 

the Debtors’ and committee’s professionals provided for in the Budget shall be 

funded into one of the Debtors’ accounts at East West Bank to be used solely to 

satisfy Allowed Professional Fees in accordance with any applicable orders entered 

in the Chapter 11 Cases (the “Professional Fee Reserve”). The funds on deposit in 

the Professional Fee Reserve shall be available to satisfy the obligations owed to 

Estate Professionals, and the DIP Lender shall have a security interest on any 

residual amounts remaining in the Professional Fee Reserve after satisfaction in full 

of all Allowed Professional Fees. 

For the avoidance of doubt and notwithstanding anything to the contrary herein, the 

Carve Out shall be senior to all liens and claims securing the DIP Facility, and all 

other forms of adequate protection, liens, or claims securing the DIP Obligations. 

Conditions 

Precedent to 

Borrowing DIP 

Loan: 

The DIP Credit Agreement will contain the following conditions precedent to draws 

under the DIP Facility: 

 The DIP Lender shall have received a borrowing notice from the Borrowers at 

least one (1) business day prior to the requested date of funding. 

 No Default or Event of Default shall have occurred, and shall be continuing, 

under the DIP Loan Documents immediately prior to the funding of the DIP 

Loan or would result from such borrowing of the DIP Loan. 

 The making of the DIP Loan shall be authorized pursuant to the Interim DIP 

Order or the Final DIP Order, as applicable. 

 The entry of the Interim DIP Order or Final DIP Order, as the case may be, in 

form and substance consistent with the terms and conditions set forth herein and 

otherwise satisfactory to the DIP Lender in its sole discretion, which Interim 

DIP Order or Final DIP Order, as the case may be, shall be in full force and 

effect, shall provide DIP Lender with lien priming all other liens, shall not have 

been reversed, vacated or stayed and shall not have been amended, 

supplemented or otherwise modified without the prior written consent of the 

DIP Lender. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 104 of 114
278261410 

7 

4873-0781-6093 

 Other than the Known Events, since the Petition Date, there shall not have been 

a Material Adverse Change; provided that Known Events and Material Adverse 

Change shall be defined in the DIP Credit Agreement. 

 The Loan Parties shall be in compliance with (i) the Interim DIP Order or the 

Final DIP Order, as the case may be, and (ii) the Budget (subject to Permitted 

Variances). 

Affirmative and 

Negative 

Covenants:

The DIP Credit Agreement will contain customary affirmative and negative 

covenants, including without limitation, the following: 

 The Debtors shall deliver to the DIP Lender and its counsel for review and 

comment, as soon as commercially reasonable, and to the extent practicable, 

not less than three (3) Business Days prior to filing (or as soon thereafter as is 

reasonably practicable under the circumstances), all pleadings, motions and 

other documents material to the DIP Lender (provided that any of the 

foregoing relating to the DIP Facility shall be deemed material) to be filed by 

the Debtors with the Bankruptcy Court. 

 The Debtors shall promptly deliver to the DIP Lender copies of any offers, term 

sheets, proposals, presentations, bids or other documents, from any party, 

related to (i) the restructuring of the Debtors, or (ii) the sale of assets of one or 

more of the Debtors. Notwithstanding the foregoing, the Debtors are not 

required to provide copies of any offers term sheets, proposals, presentations, 

bids or other confidential information to the DIP Lender if the DIP Lender is 

either an active bidder, involved in the bidding process, or has expressed its 

intent to credit bid for the applicable assets. 

 The Debtors shall comply with applicable laws (including without limitation, 

the Bankruptcy Code, ERISA, environmental laws, OFAC, money laundering 

laws, PATRIOT Act and other anti-terrorism laws and anti-corruption laws), 

pay taxes, maintain all necessary licenses and permits and trade names, 

trademarks, patents, preserve corporate existence, maintain appropriate and 

adequate insurance coverage and permit the DIP Lender’s inspection of 

properties, books and records at reasonable times with reasonable advance 

notice. 

 The Debtors shall limit all transactions with their affiliates (other than ordinary 

course transactions consistent with past practice among or between any Debtors 

and their respective subsidiaries), including, without limitation, restrictions on 

payment of any management fees to non-Borrowers. Transfers to non-Debtors 

shall be prohibited unless previously approved by the DIP Lender in writing. 

 The Debtors shall maintain their existing cash management system, as requested 

in their first day motion to do so, modified as appropriate to comply with the 

DIP Orders. 

 The Debtors shall deliver the Budget, updated weekly (and calculated 

cumulatively for each 1-week Budget period) and adherence to the Budget, 

subject to Permitted Variances. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 105 of 114
278261410 

8 

4873-0781-6093 

 For purposes hereof, the term “Permitted Variances” will mean, for the first full 

week period after the Closing Date, to be tested on the third business day of each 

week following the end of such week period (the “Initial Testing Period”) and 

for the Applicable Rolling Period (as defined below) after the Initial Testing 

Period (each such period after the Initial Testing Period, together with the Initial 

Testing Period, the “Testing Periods”): (i) all favorable variances, and (ii) an 

unfavorable variance of no more than 10% for actual operating disbursements 

(on an aggregate basis), in each case as compared to the budgeted disbursements, 

respectively, set forth in the Budget with respect to the applicable Testing 

Period; notwithstanding the foregoing, Professional Fees shall be excluded from 

the determination of Permitted Variances. The Permitted Variances with respect 

to each Testing Period shall be determined and reported to the DIP Lender not 

later than 5:00 p.m. Central Time on the third business day of each week 

immediately following the end of each such Testing Period. Additional 

variances, if any, from the Budget, and any proposed changes to the Budget, 

shall be subject to the approval of the DIP Lender. Variances will be reported 

on a cumulative basis matching the relevant Applicable Rolling Period in a 

format replicating the Budget and will include explanation of variances 

(including whether they are permanent or temporal in nature). Variances will 

be carried over across Applicable Rolling Periods solely to the extent they are 

permanent in nature. “Applicable Rolling Period” means, (i) for the Initial 

Testing Period, the most recently completed calendar week, (ii) for the second 

Testing Period after the Closing Date, the most recently completed two calendar 

weeks, (iii) for the third Testing Period after the Closing Date, the most recently 

completed three calendar weeks and (iv) for each Testing Period thereafter, the 

most recently completed four calendar weeks. 

 Subject to the Budget, the Debtors shall not incur or assume any additional debt 

(including intercompany funding) or contingent obligations in respect of debt, 

give any guaranties in respect of debt, create any liens, charges or encumbrances 

or incur additional material lease obligations, in each case, beyond agreed upon 

limits; not merge or consolidate with any other person, change the nature of 

business or corporate structure or create or acquire new subsidiaries, in each 

case, beyond agreed upon limits; not amend its charter or by laws; not sell, lease 

or otherwise dispose of assets (including, without limitation, in connection with 

a sale leaseback transaction) outside the ordinary course of business and beyond 

agreed upon limits; not give a negative pledge on any assets in favor of any 

person other than the DIP Lender; and not permit to exist any consensual 

encumbrance on the ability of any subsidiary to pay dividends or other 

distributions to the Borrowers; in each case, subject to customary exceptions or 

baskets as may be agreed. 

 The Debtors shall not, without the DIP Lender’s prior written consent, which 

consent shall not be unreasonably withheld: (i) make, commit to make, or permit 

to be made any bonus payments (including retention and incentive bonuses) to 

any employees of the Debtors and their subsidiaries in excess of the amounts set 

forth in the Budget (on an aggregate basis); or (ii) terminate any member of the 

Executive Team (as defined in the DIP Facility Documents). 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 106 of 114
278261410 

9 

4873-0781-6093 

 The Debtors shall not permit any change in ownership or control of any Debtor 

or any change in accounting treatment or reporting practices, except as required 

by GAAP or as permitted or contemplated by the DIP Credit Agreement. 

 Without the prior written consent of the DIP Lender, the Debtors shall not make 

or permit to be made any change to the DIP Orders. 

 The Debtors shall not seek authorization to incur or permit the existence of any 

claims in the Chapter 11 Cases that are senior to or pari passu with the DIP 

Lender’s section 364(c)(1) claim, except for the Carve Out. 

 The Debtors shall comply with the Milestones (as defined herein). 

Financial 

Reporting 

Requirements: 

The Borrowers shall provide to the DIP Lender (hereinafter the “Financial Reporting 

Requirements”): (i) following delivery of the Budget on the Closing Date, by not 

later than 5:00 p.m. Eastern Time on the third business day of the second full week 

following the Closing Date and by not later than 5:00 p.m. Eastern Time on the third 

business day of every other week thereafter following the end of each Testing 

Period, an updated Budget, in each case, in form and substance reasonably 

satisfactory to the DIP Lender for the subsequent 13 week period consistent with the 

form of the Budget, and such updated Budget shall become the “Budget” for the 

purposes of the DIP Facility upon the DIP Lender’s acknowledgement that the 

proposed updated Budget is substantially in the form of the Budget and in substance 

satisfactory to the DIP Lender (provided, that, until a new Budget has been approved 

by the DIP Lender, the most recently approved Budget shall govern); and (ii) 

beginning on the third business day of the first full week following the Closing Date 

(by not later than 5:00 p.m. Eastern Time), and on the third business day of each 

week thereafter following the end of each Testing Period (by not later than 5:00 p.m. 

Eastern Time), a variance report (the “Variance Report”) setting forth actual cash 

receipts and disbursements and cash flows of the Debtors for the prior Testing Period 

and setting forth all the variances, on a line-item and aggregate basis, from the 

amount set forth for such period as compared to the applicable Budget delivered by 

the Debtors, in each case, on a weekly and cumulative rolling 4-week basis (and 

each such Variance Report shall include explanations for all material variances and 

shall be certified by the Chief Financial Officer of the Debtors). The Borrowers will 

promptly provide notice to the DIP Lender of any Material Adverse Change. 

All deliveries required pursuant to this section shall be subject to the confidentiality 

provision to be negotiated in the DIP Credit Agreement. 

At the election of the DIP Lender, on each Monday (or, in the event that such day is 

not a Business Day then on the Business Day immediately following or on a day 

mutually agreed upon by the DIP Lender and the Borrower’s senior management 

and professionals) during the Chapter 11 Cases, the Borrowers’ senior management 

and professionals shall host a telephonic meeting for the DIP Lender and their 

professionals at which the Borrower’s senior management and professionals shall 

provide an update to the DIP Lender (and make themselves available for questions) 

with respect to the financial and operating performance of the Loan Parties and their 

estates, including, but not limited to, the Variance Report. 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 107 of 114
278261410 

10 

4873-0781-6093 

Other Reporting 

Requirements:

The DIP Credit Agreement will contain other customary reporting requirements for 

similar debtor in possession financings and other matters as determined by the DIP 

Lender in its reasonable discretion to be appropriate to the transactions contemplated 

herein, including, without limitation, with respect to material adverse events, events 

and notices under other material debt instruments, litigation, contingent liabilities, 

ERISA or environmental events and consistent with the Documentation Principles 

(collectively with the financial reporting information described above, 

the “Information”). 

Chapter 11 

Cases 

Milestones: 

The DIP Credit Agreement will include the following milestones related to the 

Debtors’ Chapter 11 Cases (the “Milestones”): 

 No later than seven (7) days after filing a motion to approve the DIP Facility, 

the Bankruptcy Court shall have entered the Interim DIP Order. 

 No later than fourteen (14) days after the Petition Date, the Debtors shall 

file with the Bankruptcy Court a motion (the “Bid Procedures Motion”) to 

approve procedures for the marketing and sale of the Debtors’ assets (the 

“Bid Procedures Motion”) in form and substance reasonably acceptable to 

the DIP Lender. 

 No later than twenty-one (21) days after the Bid Procedures Motion is filed, 

the Bankruptcy Court shall have entered an order approving the same (the 

“Bid Procedures Order”). The Bid Procedures Order and applicable bid 

procedures shall, consistent with this Term Sheet, authorize and approve the 

DIP Lender’s credit bid of the DIP Obligations, in whole or in part, pursuant 

to Section 363(k) of the Bankruptcy Code, for any or all of the Debtors’ 

assets; 

 Not later than 30 days after entry of the Bid Procedures Order, the 

Bankruptcy Court shall have entered an order approving one or more sales 

of the Debtors’ assets (“Sale Order”); and 

 No later than thirty-five days after the Petition Date, the Bankruptcy Court 

shall have entered the Final DIP Order. 

Events of 

Default: 

The DIP Credit Agreement will contain events of default customarily found in loan 

agreements for similar debtor in possession financings (each an “Event of Default”), 

including, without limitation: 

 failure to make payments when due; 

 invalidity of the DIP Loan Documents; 

 any of the Debtors shall file a pleading seeking to vacate or modify the Interim 

DIP Order or the Final DIP Order over the objection of the DIP Lender; 

 entry of an order without the prior written consent of the DIP Lender amending, 

supplementing or otherwise modifying the Interim DIP Order or the Final DIP 

Order; 

 reversal, vacatur or stay of the effectiveness of the Interim DIP Order or the 

Final DIP Order except to the extent reversed within five (5) Business Days; 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 108 of 114
278261410 

11 

4873-0781-6093 

 any violation of any material term of the Interim DIP Order or the Final DIP 

Order by the Debtors; 

 dismissal of the Chapter 11 Case of a Debtor with material assets or conversion 

of the Chapter 11 Case of a Debtor with material assets to a case under Chapter 

7 of the Bankruptcy Code, or any Debtor shall file a motion or other pleading 

seeking such dismissal or conversion of any Bankruptcy Case; 

 appointment of a Chapter 11 trustee or examiner with enlarged powers, or any 

Debtor shall file a motion or other pleading seeking such appointment; 

 any sale of all or substantially all assets of the Debtors pursuant to Section 363 

of the Bankruptcy Code, unless such sale is conducted in accordance with the 

Bid Procedures; 

 failure to meet a Milestone, unless extended or waived by the prior written 

consent of the DIP Lender; 

 the Debtors’ filing of (or supporting another party in the filing of) a motion 

seeking entry of, or the entry of an order by the Bankruptcy Court, granting any 

superpriority claim or lien (except as contemplated herein) which is senior to or 

pari passu with the DIP Claims; 

 an order shall be entered in any of the Chapter 11 Cases, without the prior written 

consent of the DIP Lender: (i) permitting any administrative expense or any 

claim (now existing or hereafter arising of any kind or nature whatsoever) to 

have priority equal or superior to the DIP Claims (other than the Carve Out) or 

(ii) granting or permitting the grant of a lien that is equal in priority or senior to 

the DIP Liens (other than the Carve Out); 

 two or more members of the Executive Management Team resign or otherwise 

terminate their employment relationship with the Debtor. The term “Executive 

Management Team” shall be defined in the DIP Facility Documents as including 

the C-Suite executives and such other key employees as the Debtor may 

expressly identify; 

 the Debtors’ filing of a motion seeking entry of an order approving any key 

employee incentive plan, employee retention plan, or comparable plan, without 

the prior written consent of the DIP Lender; 

 cessation of the DIP Liens or the DIP Claims to be valid, perfected and 

enforceable in all respects; 

 Permitted Variances under the Budget are exceeded for any period of time 

without consent of or waiver by the DIP Lender; 

 subject to entry of the Final DIP Order, the allowance of any claim or claims 

under Section 506(c) of the Bankruptcy Code or otherwise against any DIP 

Lender; 

 an order shall have been entered by the Bankruptcy Court prohibiting, limiting 

or restricting the right of the DIP Lender to credit bid for any or all of the 

Debtors’ assets; and 

 the payment of any prepetition claim other than (i) as consented to by the DIP 

Lender, (ii) as authorized by the Budget, (iii) permitted under the terms of the 

DIP Credit Agreement or (iv) as authorized by the Bankruptcy Court pursuant 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 109 of 114
278261410 

12 

4873-0781-6093 

to the “first day” or “second day” orders or the Interim DIP Order or the Final 

DIP Order and reflected in the Budget. 

Termination: Upon the occurrence and during the continuance of an Event of Default, the DIP 

Lender shall, by written notice to Borrowers, its counsel, the U.S. Trustee and 

counsel for any statutory committee, terminate the DIP Facility, declare the 

obligations in respect thereof to be immediately due and payable and, subject to the 

immediately following paragraph, exercise all rights and remedies under the DIP 

Loan Documents, the Interim DIP Order, and the Final DIP Order. 

Remedies: The DIP Lender shall have customary remedies upon the occurrence and during the 

continuance of an Event of Default, including, without limitation, the following: 

Without further order from the Bankruptcy Court, and subject to the terms of the 

Interim DIP Order and the Final DIP Order (including in respect of any required 

notices), the automatic stay provisions of section 362 of the Bankruptcy Code shall 

be vacated and modified to the extent necessary to permit the DIP Lender to exercise, 

upon the occurrence and during the continuance of any Event of Default under their 

respective DIP Loan Documents, all rights and remedies provided for in the DIP 

Loan Documents, and to take any or all of the following actions without further order 

of or application to the Bankruptcy Court (as applicable): (a) immediately terminate 

the Debtors’ limited use of any cash collateral; (b) cease making any DIP Loan under 

the DIP Facility to the Debtors; (c) declare all DIP Obligations to be immediately 

due and payable; (d) freeze monies or balances in the Debtors’ accounts (and, with 

respect to the DIP Credit Agreement and the DIP Facility, sweep all funds contained 

in the Controlled Accounts); (e) immediately set-off any and all amounts in accounts 

maintained by the Debtors with the DIP Lender against the DIP Obligations, or 

otherwise enforce any and all rights against the DIP Collateral in the possession of 

any of the applicable DIP Lender, including, without limitation, disposition of the 

DIP Collateral solely for application towards the DIP Obligations; and (f) take any 

other actions or exercise any other rights or remedies permitted under the Interim 

DIP Order and the Final DIP Order, the DIP Loan Documents or applicable law to 

effect the repayment of the DIP Obligations; provided, however, that the DIP Lender 

must provide the Debtors, the U.S. Trustee and any official committee with five (5) 

calendar days’ written notice (which may be by email) and file such notice of the 

Docket of the Chapter 11 Cases before exercising any enforcement rights or 

remedies; provided, further, that neither the Debtors, any statutory committee nor 

any other party-in-interest shall have the right to contest the enforcement of the 

remedies set forth in the Interim DIP Order and the Final DIP Order and the DIP 

Loan Documents, other than to argue that an Event of Default and/or a DIP 

Termination Date has not occurred. 

The Debtors shall waive any right, without the prior written consent of the DIP 

Lender, to seek relief under the Bankruptcy Code, including under section 105 

thereof, to the extent such relief would restrict or impair the rights and remedies of 

the DIP Lender set forth in the Interim DIP Order and the Final DIP Order and in 

the DIP Loan Documents. 

Marshalling and 

Waiver of 

506(c): 

Effective upon entry of the Final DIP Order, the DIP Lender shall not be subject to 

the equitable doctrine of “marshaling” or any similar doctrine with respect to the 

DIP Collateral and all proceeds shall be received and applied pursuant to the Final 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 110 of 114
278261410 

13 

4873-0781-6093 

DIP Order and the DIP Loan Documents notwithstanding any other agreement or 

provision to the contrary. 

Effective upon entry of the Final DIP Order, the Debtors (on behalf of themselves 

and their estates) shall waive, and shall not assert in the Chapter 11 Cases or any 

successor cases, any surcharge claim under sections 105(a) and/or 506(c) of the 

Bankruptcy Code or otherwise for any costs and expenses incurred in connection 

with the preservation, protection or enhancement of, or realization by the DIP 

Lender, upon the DIP Collateral. 

Expenses The Borrowers shall jointly and severally pay (i) (x) all reasonable and documented 

(in summary form) out-of-pocket fees, costs, disbursements and expenses of the DIP 

Lender (including, but limited in the case of counsel, to all reasonable and 

documented (in summary form) out-of-pocket fees, costs, disbursements and 

expenses of the DIP Lender’s counsels, and any successor counsel to each), in each 

case in connection with the negotiations, preparation, execution and delivery of the 

DIP Loan Documents and the funding of all DIP Loan under the DIP Facility, 

including, without limitation, all due diligence, transportation, computer, 

duplication, messenger, audit, insurance, appraisal, valuation and consultant costs 

and expenses, and all search, filing and recording fees, incurred or sustained by the 

DIP Lender and its counsel and professional advisors in connection with the DIP 

Facility, the DIP Loan Documents or the transactions contemplated thereby, the 

administration of the DIP Facility and any amendment or waiver of any provision of 

the DIP Loan Documents, and (ii) without duplication, all reasonable and 

documented (in summary form) out-of-pocket fees, costs, disbursements and 

expenses of the DIP Lender (including, but limited in the case of counsels, to all 

reasonable and documented (in summary form) out-of-pocket fees, costs, 

disbursements and expenses of outside counsels to the DIP Lender (and any 

successor counsel), and, to the extent necessary, one firm of local counsel engaged 

by the DIP Lender in each relevant jurisdiction, and any successor counsel to such 

primary counsel and local counsel, in each case in connection with (A) the 

enforcement of any rights and remedies under the DIP Loan Documents, (B) the 

Chapter 11 Cases, including attendance at all hearings in respect of the Chapter 11 

Cases; and (C) defending and prosecuting any actions or proceedings arising out of 

or relating to the DIP Obligations, the Liens securing the DIP Obligations, or any 

transaction related to or arising in connection with the DIP Credit Agreement or the 

other DIP Loan Documents (collectively, the “DIP Lender Reimbursements”). 

Indemnification: The Debtors shall jointly and severally indemnify and hold harmless the DIP Lender 

and each of its affiliates and each of their respective officers, directors, employees, 

controlling persons, agents, advisors, attorneys and representatives of each (each, an 

“Indemnified Party”) from and against any and all claims, damages, losses, liabilities 

and expenses (including, without limitation, fees and disbursements of counsel), 

joint or several, that may be incurred by or asserted or awarded against any 

Indemnified Party, in each case arising out of or in connection with or relating to 

any investigation, litigation or proceeding or the preparation of any defense with 

respect thereto, arising out of or in connection with or relating to the DIP Facility, 

the DIP Loan Documents or the transactions contemplated thereby, or any use made 

or proposed to be made with the DIP Proceeds, whether or not such investigation, 

litigation or proceeding is brought by any Debtor or any of its subsidiaries, any 

shareholders or creditors of the foregoing, or any other third party, an Indemnified 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 111 of 114
278261410 

14 

4873-0781-6093 

Party or any other person, or an Indemnified Party is otherwise a party thereto and 

whether or not the transactions contemplated hereby or under the DIP Loan 

Documents are consummated, except, with respect to any Indemnified Party, to the 

extent such claim, damage, loss, liability or expense is found in a final 

non-appealable judgment by a court of competent jurisdiction to have resulted solely 

from such Indemnified Party’s gross negligence or willful misconduct or any of such 

Indemnified Party’s affiliates or their respective principals, directors, officers, 

employees, representatives, agents, attorneys or third party advisors. No 

Indemnified Party shall have any liability (whether direct or indirect, in contract, tort 

or otherwise) to any Debtor or any of its subsidiaries or any shareholders or creditors 

of the foregoing for or in connection with the transactions contemplated hereby, 

except, with respect to any Indemnified Party, to the extent such liability is found in 

a final non-appealable judgment by a court of competent jurisdiction to have resulted 

solely from such Indemnified Party’s gross negligence or willful misconduct or any 

of such Indemnified Party’s affiliates or their respective principals, directors, 

officers, employees, representatives, agents, attorneys or third party advisors. In no 

event, however, shall any Indemnified Party be liable on any theory of liability for 

any special, indirect, consequential or punitive damages. 

Assignments 

and 

Participations:

No consent of the Borrowers shall be required for any assignments to a U.S. 

subsidiary of the DIP Lender. 

Governing Law: Except as governed by the Bankruptcy Code, the DIP Facility Documents shall be 

governed by the law of the State of New York. 

Counsel to the 

DIP Lender: 

Akerman LLP 

2001 Ross Avenue 

Suite 3600 

Dallas, TX 75201 

Attn: Eduardo S. Espinosa and John H. Thompson 

Email: john.thompson@akerman.com 

 eduardo.espinosa@akerman.com 

Counsel to the 

Debtors: 

Gray Reed 

1601 Elm Street, Suite 4600 

Dallas, Texas 75201 

Attn: Jason S. Brookner and Amber M. Carson 

Email: jbrookner@grayreed.com 

 acarson@grayreed.com 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 112 of 114
4861-1202-7294 

Exhibit 2 

Approved Budget 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 113 of 114
Eye Care Leaders Portfolio Holdings, LLC, et al.

DIP Financing Budget 1.21.24

$ - Thousands

Week Ending---> 1 2 3 4 5 6 7 8 9 10 11 12 13 

19-Jan 26-Jan 2-Feb 9-Feb 16-Feb 23-Feb 1-Mar 8-Mar 15-Mar 22-Mar 29-Mar 5-Apr 12-Apr TOTAL

Total Receipts 420.8 $ 490.8 $ 583.6 $ 611.8 $ 611.8 $ 611.8 $ 607.8 $ 583.9 $ 583.9 $ 583.9 $ 583.9 $ 601.2 $ 608.1 $ 7,483.4 $ 

Operating Disbursements

Payroll - 2.0 340.0 - 345.0 - 345.0 - 350.0 - - 350.0 - 1,732.0 

Hosting and EMR Fees - 208.8 216.7 236.4 236.4 236.4 238.4 250.5 250.5 250.5 250.5 252.9 253.9 2,882.0 

Consulting and Oustourced Services - 132.0 80.5 84.4 84.4 84.4 84.1 82.0 82.0 82.0 82.0 81.7 81.6 1,041.0 

Information Technology - 72.3 68.5 59.0 59.0 59.0 58.6 56.3 56.3 56.3 56.3 57.8 58.4 717.8 

Sales & Marketing - 3.6 4.0 4.8 4.8 4.8 5.6 10.8 10.8 10.8 10.8 8.4 7.4 86.4 

Other G&A 5.0 21.2 6.8 21.3 21.3 21.3 8.4 19.9 19.9 19.9 19.9 7.9 20.9 213.7 

Insurance - 20.0 20.0 20.0 60.0 

Other Operating - 12.1 12.1 12.2 12.2 12.2 12.4 13.3 13.3 13.3 13.3 13.3 13.3 153.0 

Sales Taxes - 50.9 - - - 49.7 - - - 49.7 - - - 150.3 

Critical Vendors - - - - 1,000.0 - - - - - - - - 1,000.0 

Total Operating Disbursements $ 5.0 $ 503.0 $ 728.6 $ 438.2 $ 1,763.2 $ 467.9 $ 752.5 $ 452.7 $ 782.7 $ 482.4 $ 432.7 $ 772.0 $ 455.5 $ 8,036.3

Operating Cash Flow $ (12.1) 415.8 $ (144.9) $ 173.7 $ (1,151.3) $ 144.0 $ (144.7) $ 131.2 $ (198.8) $ 101.5 $ 151.2 $ (170.9) $ 152.6 $ (552.9) $ 

Accumulated 415.8 403.7 258.8 432.4 (718.9) (574.9) (719.7) (588.5) (787.3) (685.8) (534.6) (705.5) (552.9)

Other (Sources)/ Uses

Advances from DIP Lender - (1,300.0) - - (1,500.0) - (1,000.0) - (800.0) - - - - (4,600.0) 

DIP Loan Costs - 300.0 150.0 450.0 

Creditors Committee 25.0 25.0 25.0 25.0 25.0 25.0 25.0 25.0 25.0 25.0 25.0 25.0 25.0 325.0 

Financial Advisor 75.0 75.0 75.0 75.0 75.0 75.0 75.0 75.0 75.0 75.0 75.0 75.0 75.0 975.0 

Debtor Counsel 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 150.0 1,950.0 

Capital Expenditures 11.5 11.5 11.9 12.9 12.9 12.9 12.7 11.5 11.5 11.5 11.5 8.6 7.5 148.2 

Restructuring Costs & UST Fees - - - 25.0 - - - 25.0 - - - 94.5 25.0 169.5 

Total Other (Sources/Uses) $ 261.5 $ (738.5) $ 411.9 $ 287.9 $ (1,237.1) $ 262.9 $ (737.3) $ 286.5 $ (538.5) $ 261.5 $ 261.5 $ 353.1 $ 282.5 $ (582.3)

Net Cash Flow 154.4 $ 726.4 $ (556.8) $ (114.3) $ 85.7 $ (119.0) $ 592.6 $ (155.3) $ 339.7 $ (160.0) $ (110.3) $ (524.0) $ (129.9) $ 

Accumulated 154.4 880.8 324.0 209.7 295.5 176.5 769.1 613.8 953.5 793.5 683.3 159.3 29.4

Change

 Cash Balance 73.0 $ 227.4 $ 953.8 $ 397.0 $ 282.8 $ 368.5 $ 249.5 $ 842.1 $ 686.8 $ 1,026.5 $ 866.6 $ 756.3 $ 232.3 $ 102.4 $ 29.4 $ 

 DIP Facility Balance - $ - $ 1,300.0 $ 1,300.0 $ 1,300.0 $ 2,800.0 $ 2,800.0 $ 3,800.0 $ 3,800.0 $ 4,600.0 $ 4,600.0 $ 4,600.0 $ 4,600.0 $ 4,600.0 $ 4,600.0 $ 

Case 24-80001-mvl11 Doc 55 Filed 01/25/24 Entered 01/25/24 09:47:35 Desc Main

Document Page 114 of 114