362 OF THE BANKRUPTCY CODE, FOR (A) THE MONTHLY CASH PAYMENT OF CURRENT
INTEREST AND LETTER OF CREDIT FEES ON THE PRE-PETITION SECURED INDEBTEDNESS AT
THE APPLICABLE NON-DEFAULT RATES APPLICABLE ON THE PETITION DATE PURSUANT TO THE
PRE-PETITION DOCUMENT, (B) A SUPERPRIORITY CLAIM AS CONTEMPLATED BY SECTION
507(B) OF THE BANKRUPTCY CODE, LIMITED IN AMOUNT TO THE DIMINUTION IN VALUE OF
THE PRE-PETITION COLLATERAL TO THE EXTENT OF THE PRE-PETITION SECURED
INDEBTEDNESS, RESULTING FROM THE SALE, LEASE OR USE BY THE BORROWER AND THE
GUARANTORS OF ANY PRE-PETITION COLLATERAL, THE PRIMING LIENS DESCRIBED IN
SECTION 2.17 AND THE IMPOSITION OF THE AUTOMATIC STAY PURSUANT TO SECTION 362 OF
THE BANKRUPTCY CODE, IMMEDIATELY JUNIOR TO THE CLAIMS UNDER SECTION 364(C)(1) OF
THE BANKRUPTCY CODE HELD BY THE ADMINISTRATIVE AGENT AND THE LENDERS (WITHOUT
THE REQUIREMENT TO FILE ANY MOTION OR PLEADING OR TO MAKE ANY DEMAND) AND
SUBJECT TO THE PAYMENT OF THE CARVE-OUT, (C) A LIEN ON SUBSTANTIALLY ALL OF THE
ASSETS OF THE BORROWER AND THE GUARANTORS HAVING A PRIORITY IMMEDIATELY JUNIOR
TO THE LIENS GRANTED IN FAVOR OF THE ADMINISTRATIVE AGENT AND THE LENDERS
HEREUNDER AND UNDER THE OTHER LOAN DOCUMENTS AND (D) THE PAYMENT ON A CURRENT
BASIS OF THE REASONABLE FEES AND DISBURSEMENTS OF RESPECTIVE PROFESSIONALS
(INCLUDING, BUT NOT LIMITED TO, THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL
AND ADVISERS AS PERMITTED UNDER THE PRE-PETITION DOCUMENT) FOR THE PRE-PETITION
AGENT AND THE CONTINUATION OF THE PAYMENT TO THE PRE-PETITION AGENT ON A CURRENT
BASIS OF THE FEES THAT ARE PROVIDED FOR UNDER THE PRE-PETITION SECURITY
AGREEMENT; (III) SHALL BE IN FULL FORCE AND EFFECT; AND (IV) SHALL NOT HAVE BEEN
STAYED, REVERSED, MODIFIED OR AMENDED IN ANY RESPECT.
(C)
PAYMENTS UNDER EXISTING DIP AGREEMENT.
THE BORROWER SHALL HAVE
PAID, CONCURRENTLY WITH THE FUNDING OF THE TERM ADVANCES, ALL PRINCIPAL,
INTEREST AND FEES AND ANY AND ALL OTHER OUTSTANDING AMOUNTS PAYABLE UNDER THE
EXISTING DIP AGREEMENT, INCLUDING, WITHOUT LIMITATION, FEES THEN DUE AND PAYABLE
UNDER SECTIONS 2.08(C) AND 2.08(E) OF THE EXISTING DIP AGREEMENT.
(D)
PAYMENT OF FEES.
THE BORROWER SHALL HAVE PAID ALL ACCRUED FEES
AND EXPENSES THEN DUE AND PAYABLE OF THE BOOKRUNNERS, THE ADMINISTRATIVE AGENT
AND THE INITIAL LENDERS.
(E)
OTHERS.
(I)
THE ADMINISTRATIVE AGENT SHALL BE SATISFIED IN ITS REASONABLE
JUDGMENT THAT, EXCEPT AS AUTHORIZED BY THE INTERIM ORDER, THERE SHALL NOT OCCUR
AS A RESULT OF, AND AFTER GIVING EFFECT TO, THE INITIAL EXTENSION OF CREDIT, A
DEFAULT (OR ANY EVENT WHICH WITH THE GIVING OF NOTICE OR LAPSE OF TIME OR BOTH
WOULD BE A DEFAULT) UNDER ANY OF THE BORROWER'S, THE GUARANTORS' OR THEIR
RESPECTIVE SUBSIDIARIES' DEBT INSTRUMENTS AND OTHER
59
MATERIAL CONTRACTS WHICH, IN THE CASE OF THE BORROWER'S OR ANY GUARANTOR'S DEBT
INSTRUMENTS AND OTHER MATERIAL CONTRACTS, WOULD PERMIT THE COUNTERPARTY THERETO
TO EXERCISE REMEDIES THEREUNDER AFTER THE EFFECTIVE DATE.
(II)
THERE SHALL EXIST NO ACTION, SUIT, INVESTIGATION, LITIGATION OR
PROCEEDING PENDING OR THREATENED IN ANY COURT OR BEFORE ANY ARBITRATOR OR
GOVERNMENTAL INSTRUMENTALITY (OTHER THAN THE