EXISTING BANK ACCOUNTS, CHECKS, AND BUSINESS FORMS, (II) AUTHORIZING CONTINUATION OF EXISTING DEPOSIT PRACTICES,
(III) APPROVING CONTINUATION OF CERTAIN ORDINARY COURSE INTERCOMPANY TRANSACTIONS WITH NON-DEBTOR FOREIGN SUBSIDIARIES, AND (IV) GRANTING RELATED RELIEF
Upon the motion (the “Motion”)2 of Sienna Biopharmaceuticals, Inc., as debtor
and debtor in possession in the above-captioned chapter 11 case (the “Debtor”), for entry of orders (a) authorizing, but not directing, the Debtor to continue to maintain and use its existing cash management system, including maintenance of existing bank accounts, checks, and business forms; (b) granting the Debtor a waiver of certain bank account and related requirements of the Office of the United States Trustee (the “U.S. Trustee”) for the District of Delaware to the extent that such requirements are inconsistent with the Debtor’s practices under its existing cash management system or other actions described in the Motion or this Interim Order; (c) authorizing, but not directing, the Debtor to continue to maintain and use its existing deposit practices notwithstanding the provisions of section 345(b) of the Bankruptcy Code;
1 The last four digits of the Debtor’s federal tax identification number are 4627. The Debtor’s mailing address is
30699 Russell Ranch Road, Suite 140, Westlake Village, California 91362.
2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the
(d) approving the continuation of certain ordinary course intercompany transactions with the Non-Debtor Foreign Subsidiaries; and (e) granting related relief, all as more fully set forth in the Motion; and this Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. §§ 157 and 1334 and the Amended Standing Order of Reference from the United States District Court for the District of Delaware, dated February 29, 2012; and consideration of the Motion and the requested relief being a core proceeding pursuant to 28 U.S.C. § 157(b); and venue being proper before this Court pursuant to 28 U.S.C. §§ 1408 and 1409; and due and proper notice of the Motion having been provided to the Notice Parties under the circumstances, and it appearing that no other or further notice need be provided; and this Court having held hearings to consider the relief requested in the Motion on an interim and final basis (the “Hearings”); and upon the First Day Declaration, the record of the Hearings, and all proceedings had before this Court; and this Court having determined that the legal and factual bases set forth in the Motion establish just cause for the relief granted herein; and after due deliberation and sufficient cause appearing therefor,
IT IS HEREBY ORDERED THAT:
1. The Motion is granted on a final basis to the extent set forth herein.
2. All objections to the entry of this Final Order, to the extent not withdrawn or settled, are overruled.
3. The Debtor is authorized to continue to use its existing Cash Management System and shall maintain through the use thereof detailed records reflecting all transfers of funds under the terms and conditions provided for by the existing agreements with the institutions participating in the Cash Management System. In connection with the ongoing
records with respect to all transfers of cash so that all transactions, including transfers to Non- Debtor Foreign Subsidiaries, can be readily ascertained, traced, properly recorded, and distinguished between prepetition and postpetition transactions on intercompany accounts.
4. The Debtor is authorized, but not directed, to allow all funds deposited in the Non-Debtor Foreign Subsidiary Bank Accounts to remain in the Non-Debtor Foreign Subsidiary Bank Accounts for use in the ordinary course by the Non-Debtor Foreign Subsidiaries.
5. The Debtor is authorized to engage in intercompany transactions with its Non-Debtor Foreign Subsidiaries in a manner consistent with its prepetition practices.
6. The Debtor is authorized to (a) continue to use any and all of the Debtor Bank Accounts in existence as of the Petition Date, including, but not limited to, the Debtor Bank Accounts identified on Exhibit D to the Motion, in the same manner and with the same account numbers, styles, and document forms as are currently employed; (b) deposit funds in and withdraw funds from the Debtor Bank Accounts in the ordinary course (including, without limitation, sending funds to and receiving funds from the Non-Debtor Foreign Subsidiary Bank Accounts) by all usual means, including checks, wire transfers, drafts, and electronic fund transfers or other items presented, issued, or drawn on the Debtor Bank Accounts; (c) pay ordinary course bank fees in connection with the Debtor Bank Accounts, including all investment related fees and expenses and any fees arising prior to the Petition Date; (d) perform its obligations under the documents and agreements governing the Debtor Bank Accounts; and (e) for all purposes, treat the Debtor Bank Accounts as accounts of the Debtor in its capacity as debtor in possession.
7. Pursuant to Local Rule 2015-2(a), the Debtor is authorized to continue to use its existing checks, correspondence, and other business forms without alteration or change and without the designation “Debtor in Possession” or a bankruptcy case number imprinted upon them. Notwithstanding the foregoing, once the Debtor’s existing checks have been used, the Debtor shall, when reordering checks, require the designation “Debtor in Possession” and the corresponding bankruptcy case number on all checks; provided that, with respect to checks that the Debtor prints itself, the Debtor shall begin printing the “Debtor in Possession” legend and bankruptcy case number on such items within 10 days of the date of entry of the Interim Order.
8. The Debtor is authorized to continue to utilize all third-party providers necessary for the administration of its Cash Management System, including its third-party payroll processor and benefits administrator. In addition, the Debtor is authorized, but not directed, to pay all prepetition or postpetition amounts due to such third-party providers.
9. Effective as of the Petition Date, and subject to the terms of this Final Order, the Bank at which the Debtor Bank Accounts are maintained is authorized to continue to administer, service, and maintain the Debtor Bank Accounts as such accounts were administered, serviced, and maintained prepetition, without interruption and in the ordinary course (including making deductions for Bank Fees and Expenses), and, when requested by the Debtor in its sole discretion, to honor any and all checks, drafts, wires, electronic fund transfers, or other items presented, issued, or drawn on the Debtor Bank Accounts on account of a claim against the Debtor arising on or after the Petition Date; provided, however, that unless otherwise ordered by the Court, no checks, drafts, electronic funds transfers (excluding any electronic funds transfer that the Bank is obligated to settle), or other items presented, issued, or drawn on the Debtor
Bank Accounts on account of a claim against the Debtor arising prior to the Petition Date shall be honored.
10. If the Bank honors a prepetition check or item drawn on any account that is the subject of this Final Order (a) at the direction of the Debtor to honor such prepetition check or item, (b) in the good faith belief that the Court has authorized such prepetition check or item to be honored, or (c) as a result of a good faith error, the Bank shall not be deemed liable to the Debtor or its estate on account of such prepetition check or item being honored postpetition or otherwise in violation of this Final Order.
11. The Debtor is authorized to implement such reasonable changes, consistent with this Final Order, to the Cash Management System as the Debtor may deem necessary or appropriate, including, without limitation, closing any of the Debtor Bank Accounts or opening any additional bank accounts following the Petition Date (the “New Accounts”) wherever the Debtor deems that such accounts are needed or appropriate. Notwithstanding the foregoing, the Debtor shall open such New Account(s) at banks that have executed a Uniform Depository Agreement with the U.S. Trustee for the District of Delaware, or at such banks that are willing to immediately execute such an agreement, and any New Account that the Debtor opens in the United States shall be (a) at the existing Bank or with a bank that is organized under the laws of the United States of America or any state therein, and that is insured by the FDIC or the Federal Savings and Loan Insurance Corporation and (b) designated a “Debtor in Possession” account by the relevant bank. The New Accounts are deemed to be Debtor Bank Accounts and are similarly subject to the rights, obligations, and relief granted in this Final Order. The Bank is authorized to honor the Debtor’s request to open or close (as the case may be) such Debtor Bank Account(s) or New Account(s). In the event that the Debtor opens or closes any Debtor Bank
Accounts(s) or New Account(s), such opening or closing shall be timely indicated on the Debtor’s monthly operating reports and notice of such opening or closing shall be provided to the U.S. Trustee for the District of Delaware and counsel to any official committee of unsecured creditors appointed in this chapter 11 case within 15 days.
12. The Debtor is authorized to deposit funds in accordance with existing practices under the Cash Management System as in effect as of the Petition Date, subject to any reasonable changes, consistent with this Final Order, to the Cash Management System that the Debtor may implement, and, to the extent such practices are inconsistent with the requirements of section 345(b) of the Bankruptcy Code, such requirements are waived, on an interim basis. The Debtor shall have 30 days (or such additional time as the U.S. Trustee for the District of Delaware may agree to) from the Petition Date (the “Extension Period”) within which to either come into compliance with section 345(b) of the Bankruptcy Code and Local Rule 4001-3 or to make such other arrangements as agreed with the U.S. Trustee. Such extension is without prejudice to the Debtor’s right to request a further extension of the Extension Period or a final waiver of the requirements under section 345(b) of the Bankruptcy Code and Local Rule 4001-3.
13. The Bank at which the Debtor maintains its accounts relating to the payment of all fees associated with its Cash Management System is authorized to (a) receive, process, honor, and pay all checks presented for payment and to honor all fund transfer requests made by the Debtor related thereto, to the extent that sufficient funds are on deposit in those accounts and (b) accept and rely on all representations made by the Debtor with respect to which checks, drafts, wires, or automated clearing house transfers should be honored or dishonored in accordance with this or any other order of this Court, whether such checks, drafts, wires, or
14. The Debtor is authorized, but not directed, to issue new postpetition checks, or effect new electronic funds transfers, on account of the Debtor’s Cash Management System as set forth herein, and to replace any prepetition checks or electronic fund transfer requests that may be lost or dishonored as a result of the commencement of the Debtor’s chapter 11 case.
15. Nothing contained in the Motion or this Final Order, nor any payment made pursuant to the authority granted by this Final Order, is intended to be or shall be construed as (a) an admission as to the validity of any claim against the Debtor, (b) a waiver of the Debtor’s or any appropriate party in interest’s rights to dispute the amount of, basis for, or validity of any claim against the Debtor, (c) a waiver of any claim or cause of action which may exist against any creditor or interest holder, or (d) an approval, assumption, adoption, or rejection of any agreement, contract, lease, program, or policy between the Debtor and any third-party under section 365 of the Bankruptcy Code.
16. Notwithstanding anything to the contrary contained herein, any payment made or authorized to be made under this Final Order or any claim for which payment is authorized hereunder, shall be subject to the requirements imposed on the Debtor under any orders of this Court approving any use of cash collateral by the Debtor.
17. Notwithstanding entry of this Final Order, nothing herein shall create, nor is intended to create, any rights in favor of or enhance the status of any claim held by any party.
18. Under the circumstances of this chapter 11 case, notice of the Motion is adequate under Bankruptcy Rule 6004(a).
19. Notwithstanding Bankruptcy Rule 6004(h), this Final Order shall be immediately effective and enforceable upon its entry.
20. The Debtor is authorized to take all action necessary to effectuate the relief granted in this Final Order.
21. This Court shall retain jurisdiction to hear and determine all matters arising from or related to the implementation, interpretation, or enforcement of this Final Order.
Dated: __________________, 2019 Wilmington, Delaware
EXHIBIT C
Schedule of Debtor Bank Accounts Financial Institution Address Account
Number
Account Holder Account Type
Silicon Valley Bank 3003 Tasman Drive Santa Clara, CA 95054
**3396 Sienna
Biopharmaceuticals, Inc (US)
Sweep– Excess Cash Investment
Silicon Valley Bank 3003 Tasman Drive Santa Clara, CA 95054 **3773 Sienna Biopharmaceuticals, Inc (US) Operating
Silicon Valley Bank 3003 Tasman Drive Santa Clara, CA 95054 **4271 Sienna Biopharmaceuticals, Inc (US) Restricted Cash Collateral Banca Intermobiliare di Investimenti e Gestioni S.p.A.
Via Antonio Gramsci, 7, 10121 Torino TO, Italy
IBAN **599 Sienna
Biopharmaceutical S.r.l. (Italy)
Operating
ING Luxembourg S.A 26, Place de la Gare L-2965 Luxembourg
IBAN **000 Sienna
Biopharmaceuticals S.A. (Luxembourg)
EXHIBIT D