Bayside Capital, Inc. et al v. TPC Group Inc.

Filing 37

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 7/26/2022. (nms)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: TPC GROUP INC., et al. ,

Chapter 11
Case No. 22-10493-CTG
(Jointly Administered)

Debtors.
BAYSIDE CAPITAL, INC. and CERBERUS
CAPITAL MANAGEMENT, L.P. ,
Appellant,

Adv. Proc. No. 22-50372-CTG

V.

TPC GROUP INC. and the AD HOC N OTEHOLDER
GROUP,
Appellee,

Misc. No. 22-298-RGA

-andTHE AD HOC NOTEHOLDER GROUP,
Intervenor.

MEMORANDUM OPINION
Jennifer Selendy, Andrew R. Dunlap, Oscar Shine, Max H. Siegel, Selendy Gay Elsberg PLLC,
New York, NY; Laura Davis Jones, Timothy P. Cairns, Pachulski Stang Ziehl & Jones LLP,
Wilmington, DE, attorneys for Appellants.
James R. Prince, Kevin Chiu, Baker Botts LLP, Dallas, TX; Scott R. Bowling, Baker Botts LLP,
New York, NY; David R. Eastlake, Lauren N. Randle, Baker Botts LLP, Houston, TX; Robert J.
Dehney, Curtis S. Miller, Daniel B. Butz, Matthew 0 . Talmo, Brian Loughnane, Morris Nichols
Arsht & Tunnell LLP, Wilmington, DE, attorneys for appellee TPC Group Inc.
Kristopher M. Hansen, Kenneth Pasquale, Jonathan D. Canfield, Paul Hastings LLP, New York,
NY; Matthew B. Lunn, Robert F. Poppiti, Jr. , Young Conaway Stargatt & Taylor, LLP, attorneys
for appellee the Ad Hoc Noteholder Group.

July 26, 2022

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This dispute arises in the chapter 11 cases of TPC Group Inc. (together with certain
affiliates, "Debtors"), a Texas-based petrochemical company. Appellants Bayside Capital, Inc. and
Cerberus Capital Management, L.P. ("Appellants") filed a complaint for declaratory judgment,
initiating the above-captioned adversary proceeding, 1 and later sought summary judgment to
adjudicate their purported rights under applicable loan documents. The dispute is over the
construction of a 2019 indenture governing $930 million in notes ("10.5% Notes") issued by the
Debtor. The fundamental question is whether a series of amendments to the 2019 indenture, made
in 2021, which sought to authorize a new loan that would come in senior to the 10.5% Notes, were
consistent with the terms of the 2019 indenture. Appellants have appealed the Bankruptcy Court's
July 6, 2022 Memorandum Opinion (Adv. D.I. 72; Appx Ex. 1), and the accompanying July 8, 2022
Order (Adv. D.I. 74; Appx 2) and Judgment (Adv. D.I. 75; Appx 3), which held that the 2021
amendments comported with the terms of the 2019 indenture, denied Appellants' summary
judgment motion, and granted the cross-motion for summary judgment filed by the Ad Hoc
Noteholder Group (as intervenors).
Pending before the Court is Appellants ' Emergency Motion for Stay of Effectiveness and
Enforcement of Order and Judgment Pending Appeal (D.I. 1, 4, 25, 27) ("Emergency Stay
Motion"), which seeks a stay of the Order and Judgment pending an expedited appeal. Critically,
such a stay would further delay the Bankruptcy Court' s ability to approve, on a final basis, the
Debtors' proposed debtor-in possession ("DIP") financing. Debtors and the Ad Hoc Noteholder

1

The docket of the adversary proceeding, captioned Bayside Capital, Inc. et al. v. TPC Grp. Inc.,
Adv. No. 22-50372 (CTG) (Bankr. D. Del.), is cited herein as "Adv. D.I. _ ," and the docket of the
Chapter 11 cases, captioned In re TPC Group Inc. , No. 22-10493-CTG (Bankr. D. Del.), is cited
herein as "B.D.I. _." Exhibits to the Appellants' appendix (D.I. 4) filed in support of the
Emergency Stay Motion is cited herein as "Appx Ex._."
2

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Group ("Appellees") filed a consolidated opposition to the Emergency Stay Motion. (D.I. 10).
Also pending before the Court is Appellants' Emergency Motion to Expedite Appeal (D.l. 7)
("Emergency Motion to Expedite"), which seeks an order setting an expedited schedule for briefing
and argument of the merits of the appeal. 2 Appellees filed a consolidated opposition to that motion
as well. (D.I. 12). The Emergency Motions are fully briefed. For the reasons set forth herein, the
Court will deny both Emergency Motions.

I.

BACKGROUND
The Memorandum Opinion contains a detailed description of the factual and procedural

background of this dispute. (Mem. Op. 1-14). Because I write primarily for the parties, and am
ruling on an expedited basis, this background is not repeated herein. No party contends that there is
a disputed question of fact, and all parties agreed that the question before the Bankruptcy Court was
"a pure question of contractual interpretation that can be resolved on the undisputed factual record
before the Court." (Mem. Op. 15).

A.

The 2019 10.5% Notes Indenture

TPC issued the 10.5% Notes on August 2, 2019, with a face amount of $930 million. The
terms of the 10.5% Notes, and the rights and responsibilities of TPC, the noteholders, the Trustee
(U.S. National Bank), and various guarantors are set forth in an Indenture signed that same day (D.I.
10 Ex. 4) (the " 10.5% Notes Indenture"). New York law governs the 10.5% Notes Indenture. (Id.§
14). Three provisions of the 10.5% Notes Indenture are particularly relevant here.
First, the default rule, set out in Section 9.02(a), allows TPC and U.S. Bank, as trustee and
collateral agent, to amend or supplement the 10.5% Notes Indenture or 10.5% Notes with the
consent of only a simple majority of the holders of the outstanding principal. Section 9.02(a)

2

The appeal of the Order was filed separately from the Emergency Motions and is pending at Civ.
No. 22-927-RGA.
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provides, in pertinent part, as follows :
Except as provided in this Section 9.02, the Issuer, the Guarantors and the Trustee
and, if applicable, the Collateral Agent, may amend or supplement this Indenture
(including, without limitation, Sections 4.08 and 4.12 hereof) and the Notes or the
Note Guarantees with the consent of the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes voting as a single class (including,
without limitation, consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes) . ...

(Id. § 9.02(a)). Second, Section 9.02(e) addresses amendments and modifications which have the
effect of releasing the collateral or modifying the 2019 Intercreditor Agreement (defined below),
upon the approval of two-thirds, i.e. , a super-majority, of the holders the outstanding principal:
Any amendment to, or waiver of, the provisions of this Indenture, any Security
Document or any other indenture governing Permitted Additional Pari Passu
Obligations that has the effect of releasing all or substantially all of the Collateral
from the Liens securing the Notes or otherwise modifies the Intercreditor Agreement
or other Security Documents in any manner adverse in any material respect to the
Holders will require the consent of the holders of at least 66- 2/3% in aggregate
principal amount of the Notes and any Permitted Additional Pari Passu Obligations
then outstanding.

(Id. § 9.02(e)). Third, Section 9.02(d) sets forth the instances where unanimous consent is required.
These "sacred rights" include situations where amendments generally impact the amount of
principal, the way principal is repaid, or "change the provisions in the Intercreditor Agreement or
this Indenture dealing with the application ofproceeds of Collateral that would adversely affect the
Holders." (Id. at§ 9.02(d)(l)-(10) (emphasis added)).
Section 4.07 of the 10.5% Notes Indenture expressly provides for the incurrence of
additional debt by TPC. (See§ 4.07). Section 4.07(b)( l ) provides for the incurrence of debt "not to
exceed the greater of .. . $300.0 million and ... the Borrowing Base." (Id. at§ 4.07(b)(l)).
Likewise, Section 4.07(b)(15) provides for TPC ' s incurrence of additional debt "not to exceed the
greater of ... $50 million and . .. 5.0% of Total Assets." (Id. at§ 4.07(b)(15)).

B.

2019 Intercreditor Agreement

At the same time that TPC issued the 10.5% Notes, it also entered into an asset-based
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revolving loan facility (referred to as the "ABL facility") with an availability of up to $200 million
(subject to a borrowing base), under which Bank of America served as administrative agent and
collateral agent. The ABL facility was secured by a first lien on the Debtors' accounts receivable,
deposit accounts, inventory, and other assets, and a second lien on those assets that secure the
10.5% Notes. Because the holders of the 10.5% Notes also took a security interest in the same
collateral-though, with respect to the accounts receivable and deposit accounts, one that was junior
to that held by the lenders under the ABL facility- the parties also entered into an intercreditor
agreement setting forth the parties' respective rights. (Appx Ex. 21) ("2019 Intercreditor
Agreement"). Section 4. l (a) of the 2019 Intercreditor Agreement explains that the holders of the
10.5% Notes are paid first out of the proceeds of the collateral as to which those holders have a
senior lien, with the lenders of the ABL facility being paid second. The priority of payment is
reversed with respect to accounts receivable, deposit accounts, inventory, and other assets as to
which the lenders under the ABL facility have a first lien. For that collateral, the proceeds are paid
first to the lenders under the ABL facility, with the holders of the 10.5% Notes being paid second.

C

The 2021 Transaction

After the issuance of the 10.5% Notes, TPC ' s business and liquidity was impacted by
several adverse events. To address its need for greater liquidity, in February 2021 , TPC issued $153
million in new notes, maturing in 2024 and bearing interest at 10.875 percent (" 10.875% Notes").
(See (D.I. 10 Ex. 7) (" 10.875% Notes Indenture"). In 2022, TPC issued an additional tranche of

$51.5 million in 10.875 percent notes, on substantially the same terms as those issued in 2021. The
parties intended for these tranches of 10.875% Notes to be secured by the same collateral as the
10.5% Notes, but with a lien that would become senior to the lien securing the 10.5% Notes, thus
necessitating various amendments to the 10.5% Notes Indenture and the 2019 Intercreditor
Agreement. Because, however, at the time of the 2021 transactions, the holders under the 10.875%

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Notes also held a majority (indeed, a super-majority of more than 67 percent) of the thenoutstanding 10.5% Notes, they had the authority to amend the 10.5% Notes Indenture in any way
that did not violate a holder' s "sacred rights" set out in § 9.02(d) of that indenture.
To allow for the issuance, TPC amended the 10.5% Notes Indenture by executing a
supplemental indenture. (D.I. 10 Ex. 5) ("Supplemental Indenture"). The Supplemental Indenture
contains amendments to the 10.5% Notes Indenture intended to permit the issuance of the 10.875%
Notes. The parties also entered into a new intercreditor agreement (D.I. 10 Ex. 8) ("2021
Intercreditor Agreement") which operates to subordinate the 10.5% Notes to the 10.875% Notes
with respect to the common collateral securing both sets of notes. The consents executed by more
than 67% of the holders of the 10.5% Notes authorized the entry into both the Supplemental
Indenture and the 2021 Intercreditor Agreement.
Appellants acquired their less than 10% interest in the 10.5% Notes through purchases made
between July 2021 and January 2022-i.e., months after the issuance of the first tranche of 10.875%
Notes. On March 31 , 2022, prior counsel for Appellants sent a letter to TPC ' s counsel asserting
that the 10.875% Notes, Supplemental Indenture, and 2021 Intercreditor Agreement were
ineffective.

D.

The Chapter 11 Cases Adversary Proceeding

TPC continued to experience challenges after the issuance of the 10.875% Notes. On June
1, 2022 ("Petition Date"), each of the Debtors commenced a voluntary case under chapter 11 of the
Bankruptcy Code. Debtors filed motions to approve a proposed DIP loan and restructuring support
agreement ("RSA"). On June 2, 2022, Appellants filed the adversary proceeding alleging that TPC
breached the 10.5% Notes Indenture and 2019 Intercreditor Agreement and seeking a declaratory
judgment invalidating Supplemental Indenture, 10.875% Notes Indenture, and 2021 Intercreditor
Agreement. Appellants requested expedited consideration of the adversary proceeding so that their
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claims could be considered prior to final approval of the Debtors' DIP financing including a term
loan from the Ad Hoc Noteholder Group.3 (Appx 25 , B.D.I. 148 ("6/2/2022 Tr.") at 84:15-85 :4).
Because the DIP loan would "roll up" the 10.875% Notes that purport to be senior to the 10.5%
Notes, the question was whether the 10.875% notes are actually senior, or were (as Appellants
contend) junior to the 10.5% Notes on account of a violation of the 10.5% Notes Indenture. The
Bankruptcy Court agreed to fast track the adversary proceeding.
The Memorandum Opinion, issued on July 6, 2022, following expedited discovery, briefing,
and argument, rejected Appellants' challenge to the 2021 transaction as a matter of law and held
that Section 9.02(d)(10) of the 10.5% Notes Indenture-the "sacred right" provision dealing with
the "application of proceeds to Collateral"-addressed only the ratable distribution of proceeds to
noteholders in a class, and "should not be read as an anti-subordination provision in disguise."
(Mem. Op. 27-28). The Bankruptcy Court then issued an Order and Judgment consistent with the
Opinion on July 8, 2022.

E.

The Initial Stay Motion

The same day, Appellants filed their notice of appeal and moved the Bankruptcy Court for a
stay pending appeal of the Order and Judgment. (Adv. D.I. 79). On July 11 , 2022, the Bankruptcy
Court issued a decision denying the request (Adv. D.I. 88) ("Initial Stay Decision").4
With respect to Appellants ' likelihood of success on the merits, the Bankruptcy Court

3

Pursuant to the DIP Motion, the Debtors seek authority to obtain secured post-petition financing
consisting of (i) a secured asset-based revolving credit facility in a maximum committed amount of
up to $200 million (the "ABL DIP Facility") and (ii) a priming secured term loan facility in an
aggregate amount of $323 million (the "Term DIP Facility").
4

Although the Order is a declaratory judgment, the Bankruptcy Court determined that the Order
could properly be the subject of a stay because the practical effect of such decision was that "it will
inform the Court' s consideration of the motion to approve the DIP loan." (Initial Stay Decision 4-5
(citing United States v. Safehouse, 468 F. Supp. 3d 687 (E.D. Pa. 2020) (declaratory judgment is
properly the subject of a stay where it will have an obvious practical effect)).
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concluded that the Appellants' likelihood of success was more than negligible without concluding
that it is likely or probable. (Id. at 5). In reaching this conclusion, the Bankruptcy Court reemphasized that the hierarchy of consents set forth in Section 9.02 of the 10.5% Notes Indenture
made it illogical to read section 9.02(d)(10) as an anti-subordination provision. (Id. at 6). Such a
reading, in the Bankruptcy Court' s own words, is "readily apparent." (Id. at 7). The Bankruptcy
Court further noted that Appellants ' arguments, rather than move the needle in their favor,
"demonstrate why they are unlikely to prevail on the merits." In the Bankruptcy Court' s view,
Appellants' reading would render Section 9.02(e) superfluous and meaningless because
subordination equally affects all 10.5% Noteholders. (Id. at 7-8). The Bankruptcy Court further
explained that the reference to "custom and usage" in the Order, and any related observations, were
intended to simply concern the context in which to review the agreements at issue, and regardless,
"has no effect on [the Bankruptcy] Court' s bottom-line conclusion." (Id. at 9-12).
With respect to irreparable harm, the Bankruptcy Court held that, because it planned to
proceed with a hearing on the final approval of the DIP Facility on the premise that its Order was
correct, Appellants had a substantial case for irreparable injury. At the same time, the Bankruptcy
Court acknowledged, "It is not certain that the [DIP Facility] loan will be approved," and that "there
are potential bases for objecting to the [DIP Facility] loan that do not depend on the declaratory
judgment ruling." (Id. at 12).
The Bankruptcy Court concluded that the balancing of equities weighed heavily against a
stay. Should the DIP Motion not be determined as scheduled, the Bankruptcy Court noted, the
resulting harm to the Debtors ' bankruptcy estates would greatly outweigh the harm alleged by
Appellants. Although Appellants face a potential reduction in their recoveries on their
approximately $90 million of funded debt, the Bankruptcy Court recognized that such potential
harm "is swamped by the potential harm on the other side of the ledger." (Id. at 16). Noting that
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the DIP loan would only be approved if the Debtors succeed in demonstrating that the loan "is
necessary to preserve the assets of the estate," in such a circumstance, prohibiting entry of the loan
"will lead to the destruction of value," which destruction would harm the company's nearly 500
employees, creditors holding over $1 billion of funded debt, and the various tort plaintiffs, and
could also threaten the Debtors' relationships with their vendors and suppliers. (Id. at 16-17). The
Bankruptcy Court found that the potential harm asserted by Appellants, and their low likelihood of
success on the merits, was "thoroughly overwhelmed" by the harm that the Debtors and their
constituents would suffer if the stay were granted and the Debtors were prevented from obtaining
final approval of the DIP Financing, and denied the stay on such basis. (Id.)
F.

The Emergency Motions and Temporary Stay

On July 13, 2022, Appellants filed the Emergency Stay Motion with this Court along with
the Motion to Expedite. In light of the impending hearing to approve the DIP loan on a final basis
("DIP Hearing"), which was then scheduled for July 15, 2022, this Court ordered a temporary stay
through and including July 25, 2022, and ordered expedited briefing of the Emergency Motions.
The hearing on the DIP Motion did not proceed on July 15, 2022. Based on instruction from the
Bankruptcy Court, the parties have held July 29, 2022 as a tentative date for the rescheduled DIP
Hearing.
II.

JURISDICTION

The Court has jurisdiction over appeals from final judgments, orders, and decrees of the
bankruptcy court. See 28 U.S.C. § 158(a)(l). No issue remains to be decided in the adversary
proceeding, and the Order and Judgment are final.
III.

STAND ARD OF REVIEW

This Court "review[s] the bankruptcy court' s legal determinations de nova, its factual
findings for clear error and its exercise of discretion for abuse thereof." See In re Trans World
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Airlines, Inc., 145 F.3d 124, 131 (3d Cir. 1998). The parties agree (D.I. 1 ,r 33; D.I. 10 ,r 51) that
this appeal presents matters of pure contractual interpretation, which this Court reviews de nova.

See Viera v. Life Ins. Co. ofN. Am., 642 F.3d 407,413 (3d Cir. 2011).

IV.

ANALYSIS
A.

Emergency Stay Motion

"The granting of a motion for stay pending appeal is discretionary with the court." In re

Trans World Airlines, Inc., 2001 WL 1820325, at *2-3 (Bankr. D. Del. Mar. 27, 2001). Appellants
bear the burden of showing that a stay of the Order is warranted based on the following criteria: (1)
whether the movant has made "a strong showing" that it is likely to succeed on the merits; (2)
whether the movant will be irreparably injured absent a stay; (3) whether a stay will substantially
injure other interested parties; and (4) where the public interest lies. Republic of Philippines v.

Westinghouse Electric Corp. , 949 F.2d 653, 658 (3d Cir. 1991). The most critical factors,
according to the Supreme Court, are the first two: whether the stay movant has demonstrated (1) a
strong showing of the likelihood of success, and (2) that it will suffer irreparable harm - the latter
referring to harm that cannot be prevented or fully rectified by a successful appeal. In re Revel AC,

Inc. , 802 F.3d 558,568 (3d Cir. 2015) (citing Nken v. Holder, 556 U .S. 418,434 (2009)). The
Court' s analysis should proceed as follows:
Did the applicant make a sufficient showing that (a) it can win on the merits
(significantly better than negligible but not greater than 50%) and (b) [it] will suffer
irreparable harm absent a stay? If it has, we balance the relative harms considering
all four factors using a ' sliding scale' approach. However, if the movant does not
make the requisite showings on either of these first two factors, the inquiry into the
balance of harms and the public interest is unnecessary, and the stay should be
denied without further analysis.

In re Revel AC, 802 F.3d at 571 (emphasis in text) (internal quotations and citations omitted).

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1.

Likelihood of Success on the Merits

As to the first factor-whether the stay applicant has made a strong showing that it is likely
to succeed on the merits-a sufficient degree of success for a strong showing exists if there is "a
reasonable chance, or probability, of winning." In re Revel AC, 802 F.3d at 568-69 (quoting Singer

Mgmt. Consultants, Inc. v. Milgram , 650 F.3d 223, 229 (3d Cir. 2011) (en bane)). It "is not enough
that the chance of success on the merits be better than negligible," but the likelihood of winning on
appeal need not be "more likely than not. " Id. at 569 (internal quotations omitted). The question
the Third Circuit asked in Revel was, "Did the applicant make a sufficient showing that ... it can
win on the merits" by a showing "significantly better than negligible but not necessarily greater than
50%." In re Revel AC, 802 F.3d at 571.
The central issue on appeal is whether the adoption of the Supplemental Indenture or the
202 1 Intercreditor Agreement violates Section 9.02(d)(10) of the 10.5% Notes Indenture, which
provides that "an amendment, supplement or waiver under this Section 9.02 may not (with respect
to any Notes held by a non-consenting Holder) . .. make any change in the provisions of the
Intercreditor Agreement or this Indenture dealing with the application ofproceeds of Collateral

that would adversely affect the Holders." (10.5% Notes Indenture§ 9.02(d)(10)). The parties
dispute how broadly or narrowly to read the term "dealing with the application of proceeds of
Collateral." Appellants read the language broadly, arguing that any change that would put new debt
ahead of them with respect to the right to recover out of the Collateral "deal[s] with the application
of proceeds of Collateral." (D .I. 1 at 14 ("That broad language covers any amendments that would
alter the order in which Collateral proceeds are to be distributed-whether among the Senior
Noteholders, between the Senior Noteholders and the ABL Lenders, or between those classes and
the new [10.875%] Noteholders.")). Appellants thus argue that the amendments to the 10.5% Notes

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Indenture made by the Supplemental Indenture (including subjecting the 10.5% Notes Indenture to
the 2021 Intercreditor Agreement) were covered by Section 9.02(d)(10) and required their consent.
Appellees counter that those changes did not "deal with" application of proceeds of
Collateral. According to Appellees, the only provision of the 10.5% Notes Indenture that "deals
with the application of proceeds of collateral" is Section 6.10, which addresses the waterfall for how
the trustee should distribute monies it receives under the indenture (including the distribution of
proceeds of collateral). That provision states that, after the payment of the trustee' s fees, such funds
are to be distributed "ratably" among holders. (10.5% Notes Indenture§ 6.l0(a)). Thus, if the
agreement were amended so that certain holders would be paid ahead of others out of the proceeds
of collateral, such an amendment could not be effective under Section 9. 02(d)( 10), as against an
adversely affected objecting holder. On the other hand, so long as the proceeds of collateral that
comes into the hands of the trustee are to be distributed ratably among the noteholder-as remained
the case after the adoption of the Supplemental Indenture-then the indenture has not been
amended in any way that "deal[s] with the application of the proceeds of Collateral." (10.5% Notes
Indenture§ 9.02(d)(l0)).
Looking at the words in isolation, the Bankruptcy Court observed, "reasonable arguments
could be made on either side." (Mem. Op. 22). But based on the "context ... provided by the other
terms of the 2019 [10.5% Notes] Indenture itself," the Bankruptcy Court adopted Appellees '
narrower reading. The Bankruptcy Court focused on an "anomaly" that would result under
Appellants' proposed reading, which would allow for the release of all or substantially all of the
underlying collateral with only 2/3 of noteholders' support (as Section 9.02(e) of the 10.5% Notes
Indenture does) but require unanimous approval for subordination. The Bankruptcy Court
ultimately concluded: "In sum, contrary to the argument advanced by the objecting noteholders, ...
[Section] 9.02(d)(10) of the 10.5% Notes Indenture is primarily directed at protecting the holders '
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rights to ratable treatment and should not be read as an anti-subordination provision in disguise."

(Id. at 27-28).
In my view, Appellants have not demonstrated a significantly better than negligible chance
that they can prevail on the merits of their appeal. First, I find no support for Appellants ' argument
in the text of the agreements. By its unambiguous terms, Section 9.02(d)(10) encompasses
amendments "dealing with the application of proceeds of Collateral." I agree that the only
provision of the 10.5% Notes Indenture that "deal[s] with the application of proceeds of Collateral"
is Section 6.10, which addresses the waterfall for how the trustee should distribute monies it
receives under the indenture (including the distribution of proceeds of collateral). The only
provisions in the 10.5% Notes Indenture and the 2019 Intercreditor Agreement "dealing with the
application of proceeds of Collateral" are (i) Section 4.l (a) of the Intercreditor Agreement (which
deals with the priorities between the 10.5% Noteholders (via the 10.5% Notes Trustee), on the one
hand, and the ABL representative, on the other hand), and (ii) Section 6.10 of the 10.5% Notes
Indenture (which deals with the "Priorities" among the 10.5% Noteholders themselves). As a result,
Section 9.02(d)(10) does not apply to priorities between the two different tranches of notes, the
10.875% Notes and the 10.5% Notes.
Appellants' argument relies solely on§ 9.02(d)(10). Appellants argue for "a commonsense
reading" of that section: that "dealing with the application of Collateral proceeds" covers more than
just amendments affecting the ratable distribution of such proceeds within a single class of
noteholders; rather, " [a]pplication of proceeds covers the order and manner in which proceeds of
Collateral are paid out;" "subordination is, by its very definition, a matter of application of
proceeds;" and because the 2021 transaction changed the order in which proceeds are paid,
Appellants' consent was required. (D.I. 25 at 2, 5, 15).

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I find little support for Appellants ' interpretation of Section 9.02(d)(10) as an antisubordination provision. No such words exist in the plain language of that section. Section 9.02(e),
which immediately follows that section, permits, with the consent of a supermajority of the 10.5%
Noteholders, an amendment to, or waiver of, provisions of the 10.5% Notes Indenture that modifies
the 2019 Intercreditor Agreement "in any manner adverse in any material respect to the Holders."
(10.5% Notes Indenture§ 9.02(e) (emphasis added)). As a result, any transaction that had the effect
of amending the 2019 Intercreditor Agreement would be permissible so long as a supermajority of
holders consented to such transaction, and it is undisputed that a supermajority of 10.5%
Noteholders consented to the 2021 transaction.
In support of their reading of 9.02(d)(10) as an anti-subordination provision, Appellants rely
(D.I. 1 at ,r,r 38-50) uponAudax Credit Opportunities Offshore v. TMK Hawk Parent, 150 N.Y.S.3d
894 (Sup. Ct. N.Y. Cty. Aug. 19, 2021) ("TriMark:'), a case which also involved amendments to a
provision concerning the "application of proceeds." TriMark involved a slightly different "uptier"
transaction, whereby a majority group of noteholders jump their existing debt ahead of a minority
group whose notes are left behind, thereby resulting in a full recovery to the majority. (See Mem.
Op. at 2 (noting that the 2021 transaction-in which the majority 10.5% noteholders continued to
own all 10.5% notes even after the 10.875% notes were issued-"is somewhat less aggressive than
the paradigmatic ' uptier' transaction"). The transaction in TriMark was challenged by the
noteholders who were "left behind" on the basis that the amendments to the agreement to authorize
that transaction required their consent pursuant to a clause providing that an amendment could not
revise Section 4.02 of the collateral agreement "in a manner that would by its terms alter the
application of proceeds" without "the written consent of each Lender directly and adversely affected
thereby ." Id. at *11. Section 4.02 set up a waterfall among three separate constituents in the credit
agreement. The TriMark court observed that one "reasonable way" to read the provision is as a
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prohibition on subordination- to prohibit the parties "from placing any tranche of debt above
Plaintiffs' place in the waterfall, even if the order of distribution" is not affected. Id. at *12. Under
this reading, even if the objectors' rights were not affected vis-a-vis the other holders in their same
tranche, the objectors still "have a plausible argument that the [transaction] required their consent
... because it altered the application of proceeds by subordinating Plaintiffs' priority interest to the
new Super-Priority Intercreditor Agreement." Id. (internal quotation marks omitted). The TriMark
court noted the counter-argument by defendants that "application of proceeds" refers "only to the
Administrative Agent' s application of proceeds among the categories covered by the agreement."

Id. Under this view, "the Administrative Agent's task remains the same before and after the
amendment-it still applies the ' proceeds' (whatever is left of them) in the order specified" in the
agreement. Id.
"Even assuming the Defendants' interpretation is plausible," the TriMark court noted, "it is
not the only reasonable way to read the contract." Id. Because the TriMark court found that the
objectors' reading to be a plausible one, it denied a motion to dismiss the complaint and allowed the
litigation to proceed. Id. The case settled thereafter. Thus, TriMark did not resolve the question as
to whether the prohibition on subordination was a "sacred right" in the context of the agreement at
issue there. (Mem. Op. at 24). The TriMark court never reached a definitive construction of the
language at issue and TriMark does not create a likelihood of success on the merits.
The Bankruptcy Court cited Serta, a case in which the U.S. District Court for the Southern
District of New York declined the invitation to construe a similar sacred rights provision as an antisubordination clause. See LCM XXII Ltd. v. Serta Simmons Bedding, LLC, 2022 WL 953109
(S.D.N.Y. Mar. 29, 2022). In that case, the sacred rights provision at issue required "consent from
all affected Lenders for any waiver, amendment, or modification of the provisions of section 2.18(b)
or (c) ... in a manner that would by its terms alter the pro rata sharing ofpayments required
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thereby. Serta, 2022 WL 953109, at *2 (emphasis added). Like the Bankruptcy Court here, the

Serta court declined the invitation to read this provision as an anti-subordination provision in
disguise:
While the Amendments had the effect of extinguishing certain first-lien lenders'
loans in exchange for an elevation of their priority rights under a new class of debt,
the Amendments left untouched the pro rata rights of first-lien lenders vis-a-vis other
first-lien lenders. At base, Plaintiffs' objection to the Transaction is not the
interruption of their pro rata payment rights within the same class of lenders which remain fully intact - but rather the subordination of their first-lien loans.
Despite Plaintiffs' protestations, anti-subordination is not a sacred right protected by
Section 9.02(b)(A)(6), or any other provision of Section 9.02. Thus, the Agreement
permitted such changes to be made with the consent of only a majority of lenders.

Id. at * 10. The Bankruptcy Court cited Serta in support of its proposition that "a provision
providing for ratable distribution (in the absence of an express anti-subordination clause) would
more naturally apply to distributions within a class, and not prohibit subordination of an entire class
to another, different class." (Mem. Op. 25 n.75).
Appellants argue that Serta does not apply here because the sacred rights provision in Serta
protects "only ' pro rata' rights" and therefore "concerns only rights within [a] class of
shareholders." (D.I. 1 at 13-14). According to Appellants, the use of "application of proceeds of
Collateral" in the 10.5% Notes Indenture "refers to the complete waterfall by which proceeds are
applied," and "not merely a single step of that waterfall that requires pro rata sharing, which is a
distinct concept." (Id. at 13) (emphasis in original). According to Appellants, the only authority
interpreting the broader "application of proceeds" phrase in this context is TriMark, which supports
their interpretation. (Id. at 5-6). As discussed, TriMark did not reach a definitive construction of
the language at issue. Appellants are correct that Serta considered different language, but Serta
supports the Bankruptcy Court' s interpretation insomuch as it also rejected a broad interpretation of
the sacred rights provision as an anti-subordination provision and limited the unanimous consent

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requirement to only those sacred rights specifically "enumerated." See Serta, 2022 WL 953109 at
*9-10.
Appellants also dispute the Bankruptcy Court' s hierarchy of consent analysis. While noting
that both constructions of the language at issue in TriMark "were plausible based on the language in
isolation," the Bankruptcy Court concluded that the language at issue here, read in the context of
"the other terms of the 2019 [10.5% Notes] Indenture itself," compelled a narrower reading of
Section 9.02(d)(10). (Mem. Op. 25-26). Indeed, the 10.5% Notes Indenture created a hierarchy of
consents needed for particular amendments-it generally provided for control by the majority;
stated that a super-majority of two-thirds was required to release all or substantially all of the
collateral; and then identified ten "sacred rights" that required unanimous consent of affected
holders. The Bankruptcy Court observed that the logic of this hierarchy suggests that the matters
included among the ten "sacred rights" would be actions that are- at least from the perspective of
an individual holder-more problematic or prejudicial than the kinds of actions that can be taken
simply with the approval of a simple or two-thirds majority. It would create an anomaly to read the
10.5% Notes Indenture to permit a two-thirds majority to take a more drastic action ofreleasing all
collateral but give every holder the right to block the less extreme measure of subordination.
Reading § 9.02( d)( 10) to be limited to protecting the right to pro rata distributions is consistent with
this structure, the Bankruptcy Court reasoned, as an individual holder would be severely prejudiced
if the other holders all agreed that they would be paid in full out of the distribution of the proceeds
of collateral before that individual holder received any distribution. Reading§ 9.02(d)(10) to treat
any subordination as violating a "sacred right," on the other hand, would be inconsistent with this
hierarchy, the Bankruptcy Court reasoned, because subordination of a lien to that of another lender
is a less drastic intrusion on the rights of an individual holder than simply releasing all of the
collateral. "There are many reasons why a lender might agree to subordinate its lien to one in favor
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of a new lender." (Mem. Op. at 26-27). "In circumstances in which a borrower is facing a liquidity
constraint, an old lender that is unwilling or unable to make a further loan might be very happy to
subordinate its lien if that is the most cost-effective way for the borrower to attract new capital and
thus avoid the greater threat to the lender' s collateral that a default would precipitate." (Id.)
Appellants argue on appeal that the Bankruptcy Court erred in applying this hierarchy as
"neither the contract nor any caselaw provides that actions implicating sacred rights, and requiring
consent of all adversely affected Holders, must be more "drastic" than those which can be
undertaken by a supermajority." (D.I. 25 at 9). The touchstone of contract interpretation is the text
of the contract, Appellants argue, and not a court' s opinion of how the text could be made more
sensible (Id. (citing Greenfield v. Philles Records, 98 N.Y.2d 562, 569 (2002)). But the
Bankruptcy Court' s reading of the 10.5% Notes Indenture is a reasonable one harmonizing§
9.02(d)(l) with§ 9.02(e). As the Bankruptcy Court observed, under any reading of§ 9.02(d)(l0)
that was broad enough to cover subordination, it would also cover the release of collateral. Because
§ 9.02(e) requires only a two-thirds majority to release all of the collateral, any reading of§
9.02(d)(10) that would require the consent of every holder for the release of collateral would
conflict with § 9 .02(e). "The import of this construction is that § 9 .02(d)(l 0) needs to be read more
narrowly than the objecting noteholders contend." (Initial Stay Decision at 6). It is logical for§
9.02(d)(10), which would require unanimous consent, to apply to an amendment that would be more
drastic or prejudicial to an individual noteholder than the release of collateral. Reading §
9.02(d)(10) as treating the right to ratable treatment as a "sacred right" that cannot be amended
away without the consent of each affected holder is consistent with the language and more
consonant with the overall structure and hierarchy of consents reflected in the indenture. The
strained hypothetical posed by Appellants (D.I. 1 at 20) does not give rise to a likelihood of success.

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Finally, the Bankruptcy Court acknowledged that the question before the Bankruptcy Court
was "a pure question of contractual interpretation that can be resolved on the undisputed factual
record before the Court." (Mem. Op. at 15). According to Appellants, the Bankruptcy Court
therefore committed reversible error because it looked to "the customs, practices, usages and
terminology as generally understood in the particular trade or business" to interpret the Section
9.02(d)(10), rather than relying on the plain text of the indenture. (D.I. 1 at 147 (citing Mem. Op.
at 24-25)). The Memorandum Opinion noted that a provision providing for ratable distribution (in
the absence of an express anti-subordination clause) would more naturally apply to distributions
within a class, and not prohibit subordination of an entire class to another, different class-indeed,
when the parties adopted the Supplemental Indenture, they included such a standard antisubordination clause. (Supplemental Indenture § 9.02(f) ("Notwithstanding the foregoing in this
Section 9.02, no amendment, supplement or waiver to the Indenture or any other Note Document
shall subordinate the Lien securing the Notes Obligations to any other Lien (and the Trustee shall
not enter into any intercreditor agreement providing for such subordination) without the consent of
the holders of at least 66-2/3% in aggregate principal amount of the Notes then outstanding."))
But the Bankruptcy Court clarified in its Initial Stay Decision the point it had intended to
make: that in construing the language of a contract "even without extrinsic evidence of custom and
usage, the context and subject of the agreement can help lend clarity to terms that might otherwise
be ambiguous." (Initial Stay Decision at 9-10). In the context of a leveraged loan agreement, the
court noted, "one would not expect parties who intend to prohibit subordination to do so by
amendments that deal with the allocation of the proceeds of collateral." (Id. at 10). The court
further clarified that the principal basis for granting summary judgment in favor of the Appellees
(and denying Appellants' summary judgment motion) was "the structural one about ' hierarchy of
consents' contained in the indenture'"-a fundamental concern which had nothing to do with
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custom and usage. (Id. at 11-12). Indeed, while referencing the customs and practices in the
context of an indenture, the Memorandum Opinion itself makes clear that the " [e ]ven more telling
context" is that "provided by the other terms of the 2019 [10.5% Notes] Indenture itself." (Mem.
Op. 24-25). Based on the foregoing, I agree that the inclusion of the language about "customs,
practices, usages and terminology as generally understood in the particular trade or business" does
not give rise to a substantial likelihood that Appellants will prevail on the merits of their appeal.
I find that Appellants have not made a significantly better than negligible showing that they

are likely to succeed on the merits of the appeal.

2.

Irreparable Harm Absent a Stay

The applicant for a stay must "demonstrate that irreparable injury is likely in the absence" of
the stay. Winters v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 22 (2008). Irreparable
harm is an injury that "cannot be redressed by a legal or equitable remedy following a trial."
Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharms. Co. , 290 F.3d

578, 595 (3d Cir. 2002).
Appellants assert "three independent irreparable harms." (D.I. 1 at ,r 60). First, without a
stay pending appeal, Appellants will lose access to the proceeds of Collateral without adequate
protection or a valid waiver, in violation of the Fifth Amendment. (Id) Second, proceeding to the
DIP Hearing with the Order intact and issuing relief unfavorable to Appellants pending appeal

would irreparably harm their property right in the 10.5% Notes by diluting their security interest.
(Id.

,r 70).

Third, absent a stay, Appellees may later argue that Appellants' appeal has become

statutorily moot under§ 364(e) of the Bankruptcy Code or equitably moot under the Third Circuit's
standard.
Appellees argue that Appellants have failed to demonstrate that any harm would be actual
and imminent. I disagree. In absence of stay, the eventual DIP Hearing will proceed on the premise
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that the Order' s declaratory judgment ruling is correct. As the Bankruptcy Court noted, it is not
certain that the DIP loan will be approved, as there are potential bases for objecting to the DIP loan
that do not depend on the declaratory judgment ruling in the Order. But I agree with the
Bankruptcy Court that, as a practical matter, the resolution of the declaratory judgment ruling
increased the risk the objecting noteholders face that the DIP loan may be approved and that the
10.5% Notes will thus be placed behind the subsequent loans in priority.
Appellees further argue that Appellants have failed to establish that any harm would be
irreparable. Appellees argue that a purely economic injury, compensable in money, cannot satisfy
the irreparable injury requirement unless the potential economic loss is so great as to threaten the
existence of the movant's business-an assertion Appellants have not made. See Revel AC, 802
F.3d at 572. Again, I disagree with Appellees.
Like the Bankruptcy Court, this Court does not read the Third Circuit case law to apply
equitable mootness outside of the context of a confirmed plan. Statutory mootness, however,
presents a very real challenge. If the DIP loan is approved, and Appellants are successful on appeal,
they would face a statutory challenge under§ 364(e) of the Bankruptcy Code, which provides that
the "reversal or modification on appeal of an authorization under this section to obtain credit or
incur debt, or of a grant under this section of a priority or a lien, does not affect the validity of any
debt so incurred, or any priority or lien so granted, to an entity that extended such credit in good
faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and
the incurring of such debt, or the granting of such priority or lien, were stayed pending appeal." 11
U.S.C. § 364(e). Thus, it does not appear that the subsequent reversal of the Order on appeal would
provide a basis to restore the prior scheme of priority. According to Appellees, Appellants ' remedy,
if they are right and the rollup cannot be unwound, would be money damages. (D.I. 10 at 34-35).
The Court agrees it would be extremely difficult to fashion a remedy if the DIP loan is approved
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and Appellants are later successful on appeal. Based on the foregoing, Appellants have carried their
burden of establishing irreparable harm.

3.

Balancing of Harms

Despite finding that Appellants have carried their burden of demonstrating irreparable harm,
having already determined that Appellants have failed to carry their burden as to likelihood of
success, I am satisfied no further analysis is required and the stay should be denied. See Revel AC,
802 F.3d at 571. I nevertheless address the remainder of the analysis, however, as I have thought
about it and it may assist the Court of Appeals should there be a further appeal. In balancing the
harms, the Court should "weigh the likely harm to the movant (absent a stay) (factor two) against
the likely irreparable harm to the stay opponent(s) if the stay is granted (factor three). The Court
should also take into account where the public interest lies (factor four)-in effect, how a stay
decision has consequences beyond the immediate parties." In re Revel AC, 802 F.3d at 569
(internal quotation and citation omitted).
As the Bankruptcy Court noted, the objecting noteholders have a stake of approximately 10
percent in a $930 million debt issuance. The potential injury Appellants face is thus a reduction in
their percentage recovery on that debt.
On the other hand, Appellees have provided substantial evidence of harms the Debtors
would face from loss or delay of the DIP loan. In order to obtain approval of the DIP loan, Debtors
will be required to make a showing that borrowing money "is necessary to preserve the assets of the
estate." Thus, in any circumstance in which the DIP loan would otherwise be approved, loss or
delay of the DIP loan will lead to the destruction of value affecting the Debtors' five hundred
employees, other creditors holding more than $1 billion in other funded debt, as well as the tort
claimants who suffered injury when the Debtors' facility in Port Neches, Texas exploded in
November 2019.
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The Debtors operate in a volatile business, one impacted by shifts in commodity prices and
other factors beyond the Debtors' control, including weather and natural disasters. (D .I. 10-1 ("Del
Genie Dec.") ,i,i 17-25). This is particularly true because the Debtors operate a cash-intensive
business with accounts payable and accounts receivables that can vary widely. Appellees submit
evidence supporting the potential harm that a further delay of the DIP Hearing may impose,
including that: (i) Debtors currently have over $43,000,000 in vendor and supplier bills from May
that are due in July (see id. ,i,i 8-9); (ii) with the rise in commodity prices, vendor and supplier
expenses have risen to between $100,000,000 and $150,000,000 per month (id. at ,i 20); (iii) the
inherent risks that come with the Debtors' business, which can cause large variances in liquidity
needs, making the historical minimum liquidity threshold a less than perfect indicator of the
Debtors' future liquidity needs (id. at ,i 18-22); (iv) failure to obtain the Final DIP Order would
result in a substantial erosion of the liquidity the Debtors currently enjoy from the interim DIP loan
and ABL facility (id. at ,i 6-16); and (v) the failure to obtain the Term DIP Facility on a final basis
would result in a default of the interim DIP Loan, thereby obligating Debtors, under the terms of
those agreements, to repay the current draw of $32,000,000, further eroding the Debtors' liquidity
by that amount (id. at ,i 10-12).
Additionally, Debtors have provided the declaration of Zul Jamal that, based on his
conversations with Eclipse, the ABL DIP Lender, that the failure of Debtors to obtain entry of a
final order on the DIP loan by end of day July 18, 2022 would result in an event of default under
Section 7.0l(k)(iii)(c) of the Term DIP Facility and ABL DIP Facility. (D.I. 10-2 ("Jamal Dec.") i!
13). Appellants argue that the Court' s current stay of the Order and Judgment until July 25 , 2022

has already triggered an event of default under the ABL DIP Facility yet, "There is no evidence that
the ABL DIP lender has stopped providing financing to TPC or has indicated that it will stop doing
so." (D.I. 25 at 17). But Appellants do not dispute that Eclipse's willingness to provide the ABL
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DIP Loan Facility-which no party disputes is necessary-on the existing negotiated terms is
contingent upon approval of the Term DIP Loan Facility on a final basis. (Jamal Dec.

,r,r 14-15; see

also 6/2/22 Tr. at 180:16-181 :22 (Mr. Jamal testifying that, for Eclipse, "[t]he entire basis for their
underwrite was that the expectation that there would be new money coming in in the form of the
[DIP] term loan"). If that does not occur, there is no guarantee that Eclipse will continue to provide
the ABL DIP Loan Facility (or on what terms). Thus, if the Debtors lose access to the Term DIP
Facility due to delays caused by the stay, the ABL DIP Loan Facility will also be in jeopardy,
eroding the Debtors' available liquidity and forcing the repayment of amounts borrowed thereunder.
(Jamal Dec.

,r,r 14-15).

Appellants dispute Debtors' view that even a further short delay of the DIP Hearing, to
allow the expedited briefing and ruling on the appeal sought by the Appellants, could cause the
Debtors to lose over $140,000,000 in liquidity. (Del Genio Dec. ,r,r 6-16). Along with the over
$43 ,000,000 owed to vendors and suppliers for May orders, this would leave the Debtors
substantially short of the bare minimum $50,000,000 in liquidity to operate its business. (Id.

,r 8-9,

16). Such an occurrence would damage relationships with the Debtors' key business partners, the
Debtors' workforce, and commercial counterparties by disrupting the Debtors' ordinary-course
operations and causing them to fail to meet their financial commitments. (Id.

,r,r 28-30).

It would

present substantial, if not insurmountable, challenges in holding vendor and supplier relationshipsparties that provide better terms and credit when the Debtors can show substantial liquidity exists.
(Id.)

Appellants' assertion that the Debtors have alternative postpetition financing available
discounts the Debtors' business judgment in concluding that the Term DIP Facility is the best and
only actionable postpetition financing proposal available to the Debtors. (Jamal Dec.

,r 14-16).

The

DIP Facility was negotiated at arms' length and does not require nonconsensual priming of existing
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prepetition liens. (Id.) As the Debtors are unable to provide adequate protection to the 10.5%
Notes collateral agent on account ofnonconsensual priming, and the 10.5% Notes collateral agent
has not consented to priming by liens other than those securing the Term DIP Facility, Appellants'
assertions regarding an "alternative proposal" are belied by the facts. (Id.; see also 6/2/22 Hearing
Tr. at 194:17-23).
Moreover, as Mr. Jamal has testified without dispute, the Term DIP Facility and the
restructuring support agreement provide the Debtors with new money on reasonable terms under the
circumstances and provide a path to emergence from these chapter 11 cases. (Id) . The Debtors
determined in their business judgment that the RSA transactions constitute the best and only
restructuring transactions available to the Debtors and maximize value for the benefit of all parties
in these chapter 11 cases. (Id.) Appellants' requested relief would put the Debtors into default
under their DIP facilities and allow the RSA to be terminated without providing any alternative
viable path forward for the Debtors. (Id.

,r,r 11-13).

Debtors argue that each month of delay resulting from the requested stay will dramatically
drain the Debtors ' estate. (Del Genia Dec.

,r,r 26-27).

In professionals' fees alone, the Debtors

expect to spend between $8 million to $10 million monthly. (Id). This forecast-which assumes
professional fees of $9.3 million and $7.3 million for June and July, respectively-was
conceptualized on proceeding consensually through the bankruptcy and does not contemplate the
level oflitigation currently occurring. (Id.) Extending this process for months to resolve the appeal
would drain estate resources. (Id.)
I agree with the Bankruptcy Court that these potential harms far outweigh the potential
reduction in Appellants ' percentage recovery.

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4.

Where the Public Interest Lies

The Court agrees with the Bankruptcy Court that, in the context of this dispute, which is
primarily a commercial dispute between private parties, consideration of the public interest does not
add materially to the considerations described above.
Because the balance of equities weighs strongly against the entry of a stay, the Emergency
Stay Motion will be denied.

B.

Emergency Motion to Expedite

Appellants request that the Court consider this appeal on an expedited basis within a matter
of weeks. Indeed this is "extraordinary relief under any measure." In re Mallinckrodt PLC, 2021
WL 3403799, at *2 (D. Del. Aug. 4, 2021 ). For an appeal to be considered on an emergency,

expedited basis, the Appellants must (i) show justification for "considering the appeal ahead of
other matters," and (ii) demonstrate immediate or irreparable harm that would occur in the absence
of expediting the appeal. See In re John Varvatos Enterprises, Inc. , 2020 WL 3971723 , at *2 (D.
Del. July 14, 2020) (citing to Fed. R. Bankr. P. 8013(a)(2)(B) & 8013(d)(l)).
That standard is not met here. The breach alleged by Appellants occurred when the Debtors
issued the 10.875% Senior Secured Notes in February 2021. In July 2021 , Appellants began
purchasing 10.5% Notes, and over the ensuing months, Appellants built a small position in the
10.5% Notes. Appellants did not seek judicial relief until the Chapter 11 cases were filed in June of
this year, leading to this emergency. As the timeline demonstrates, any exigencies are of
Appellants' own making in failing to seek relief before the bankruptcy filing. " Such extraordinary
relief [of expediting an appeal] should not be granted to redress a purported emergency that was
caused by Appellants ' own delay and failure to follow established procedures." In re Mallinckrodt

PLC, 2021 WL 3403799, at *3 (citing Bos. Parent Coal.for Acad. Excellence Corp. v. Sch. Comm.
of City of Bos. , 996 F.3d 37, 50 (1st Cir. 2021) ("We do not lightly grant emergency relief,
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especially where the emergency is largely one of [plaintiffs] own making and the relief sought
would interfere with processes on which many others have reasonably relied.") (internal quotations
omitted); In re Rosas, 2010 WL 3075468, at *1 (Bankr. W.D. Tex. Aug. 4, 2010) ("The court is not
obligated to grant relief for emergencies of the [movant]'s own making.").

V.

CONCLUSION
Appellants have failed to establish that a stay pending appeal of the Order or expedited

consideration of the appeal is warranted. A separate order will be entered.

27