(a) Motions. Except as provided herein and elsewhere in these Rules, parties seeking cash collateral and/or financing requests under 11 U.S.C. §§ 363 and 364 must file a motion pursuant to Fed. R. Bankr. P. 2002, 4001, and 9014, and L.B.R. 2081-1 and 9013-1 as applicable (“Financing Motions”).
(1) Mandatory Inclusions. All Financing Motions must also provide a summary of the essential terms of the proposed use of cash collateral and/or financing including, but not limited to:
(A) maximum borrowing available on a final basis;
(B) interim borrowing limit;
(C) borrowing conditions;
(D) interest rate;
(E) fees, costs and charges paid or payable by debtor or any other person or entity;
(G) events of default;
(H) remedies in the event of default;
(I) use of funds limitations;
(J) protections afforded under 11 U.S.C. §§ 363 and 364; and
(K) line item budget for both the interim and final order periods, unless the Court orders otherwise.
(2) Provisions That Will Not Be Approved without Demonstration of Necessity or Cause. All Financing Motions must identify the location of any of the following provisions or findings of fact in the proposed form of order and/or underlying cash collateral stipulation or loan agreement by page, paragraph and/or line number, and provide the justification for the inclusion of each such provision or finding of fact:
(A) Cross-collateralization that secures pre-petition debt by post-petition assets not otherwise subject to the secured party’s pre-petition security interest, except as a means of providing adequate protection for use of cash collateral, to the extent of deterioration of a secured creditor’s position. See 11 U.S.C. § 552;
(B) Binding the estate or all parties in interest with respect to the validity, perfection or amount of the secured party’s lien or debt;
(C) Binding the estate or all parties in interest with respect to the relative priorities of the secured party’s lien and liens held by persons who are not party to the stipulation (i.e., an order approving a stipulation providing that the secured party’s lien is a “first priority” lien);
(D) Waivers of 11 U.S.C. § 506(c);
(E) Provisions that operate to divest the debtor-in-possession of any discretion in the formulation of a plan, administration of the estate or limit access to the Court to seek any relief under other applicable provisions of law;
(F) Releases of liability for the creditor’s alleged pre-petition torts or breaches of contract;
(G) Waivers of avoidance actions arising under the Bankruptcy Code;
(H) Automatic relief from the automatic stay upon default, conversion to chapter 7, or appointment of a trustee;
(I) Waivers of the procedural requirements for foreclosure mandated under applicable non-bankruptcy law;
(J) Adequate protection provisions that create liens on claims for relief arising under the Bankruptcy Code (see 11 U.S.C. §§ 506(c), 544, 545, 547, 548, and 549);
(K) Waivers, effective on default or expiration, of the debtor’s right to move for a Court order pursuant to 11 U.S.C. § 363(c)(2)(B) authorizing the use of cash collateral in the absence of the secured party’s consent; and
(L) Findings of fact extraneous to the approval process.
(b) Interim Relief. When Financing Motions are filed with the Court on or shortly after the date of the entry of the order for relief pursuant to L.B.R. 2081-1, the Court may grant interim relief pending review by the interested parties of the proposed debtor-in-possession financing arrangements. Such interim relief is intended to avoid immediate and irreparable harm to the estate pending a final hearing. The Court may deny the interim relief requested in the absence of a reasonable opportunity to object.
(c) Final Orders. The Court will enter a final order only after providing parties notice and an opportunity for a hearing pursuant to Fed. R. Bankr. P. 4001 and L.B.R. 9013-1.