SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH ITS
TERMS, THE "INTELLECTUAL PROPERTY SECURITY AGREEMENT"), DULY EXECUTED BY EACH
LOAN PARTY, TOGETHER WITH EVIDENCE THAT ALL ACTIONS THAT THE ADMINISTRATIVE
AGENT MAY DEEM REASONABLY NECESSARY OR DESIRABLE IN ORDER TO PERFECT AND PROTECT
THE FIRST PRIORITY LIENS AND SECURITY INTERESTS CREATED UNDER THE INTELLECTUAL
PROPERTY SECURITY AGREEMENT IN THE UNITED STATES HAVE BEEN TAKEN OR WILL BE
TAKEN IN ACCORDANCE WITH THE TERMS OF THE LOAN DOCUMENTS; PROVIDED THAT IT IS
UNDERSTOOD AND AGREED THAT THE "INTELLECTUAL PROPERTY SECURITY AGREEMENT"
DELIVERED UNDER (AND AS DEFINED IN) THE EXISTING DIP AGREEMENT SHALL SATISFY
THIS CONDITION IN ALL RESPECTS WITH RESPECT TO EACH LOAN PARTY PARTY THERETO IF
THE REPRESENTATIONS AND WARRANTIES MADE BY SUCH LOAN PARTY THEREIN, INCLUDING
WITHOUT LIMITATION THOSE REFERENCING THE SCHEDULES THERETO, ARE TRUE AND CORRECT
IN ALL MATERIAL RESPECTS AS OF THE EFFECTIVE DATE.
(VIII)
A FORECAST REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT
DETAILING THE BORROWER'S ANTICIPATED MONTHLY INCOME STATEMENT, BALANCE SHEET AND
CASH FLOW STATEMENT, EACH ON A CONSOLIDATED BASIS FOR THE BORROWER AND ITS
SUBSIDIARIES, TOGETHER WITH A WRITTEN SET OF ASSUMPTIONS SUPPORTING SUCH
STATEMENTS, FOR EACH MONTH DURING THE PERIOD COMMENCING ON THE EFFECTIVE DATE
AND ENDING ON THE MONTH OF DECEMBER 2010 AND SETTING FORTH THE ANTICIPATED
AGGREGATE MAXIMUM AMOUNT OF UTILIZATION OF THE COMMITMENTS ON A MONTHLY BASIS.
(IX)
A DIP BUDGET REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT.
(X)
A NOTICE OF BORROWING FOR ANY BORROWING TO BE MADE, AND/OR ONE OR
MORE LETTER OF CREDIT APPLICATIONS FOR EACH LETTER OF CREDIT (OTHER THAN
EXISTING LETTERS OF CREDIT) TO BE ISSUED, ON THE EFFECTIVE DATE.
(XI)
A FAVORABLE OPINION OF KIRKLAND & ELLIS LLP, COUNSEL TO THE LOAN
PARTIES, IN SUBSTANTIALLY THE FORM OF EXHIBIT D-1 HERETO CONSISTENT IN ALL
MATERIAL RESPECTS
58
WITH THE CORRESPONDING OPINION DELIVERED IN CONNECTION WITH THE EXISTING DIP
AGREEMENT.
(B)
INTERIM ORDER.
THE INITIAL LENDERS SHALL HAVE RECEIVED, ON OR
BEFORE THE EFFECTIVE DATE, A CERTIFIED COPY OF AN ORDER ENTERED BY THE
BANKRUPTCY COURT IN SUBSTANTIALLY THE FORM OF EXHIBIT E, OR OTHERWISE IN FORM
AND SUBSTANCE REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT (THE "INTERIM
ORDER"), APPROVING THE LOAN DOCUMENTS AND GRANTING THE SUPERPRIORITY CLAIM
STATUS AND THE LIENS DESCRIBED IN SECTION 2.17, WHICH INTERIM ORDER (I)(A) SHALL
AUTHORIZE EXTENSIONS OF CREDIT IN THE AGGREGATE AMOUNT OF UP TO $450,000,000,
AND (B) SHALL APPROVE THE PAYMENT BY THE BORROWER OF ALL OF THE FEES AND
EXPENSES THAT ARE REQUIRED TO BE PAID IN CONNECTION WITH THE FACILITIES;
(II) SHALL HAVE AUTHORIZED THE USE BY THE BORROWER AND THE GUARANTORS OF ANY
CASH COLLATERAL IN WHICH ANY PRE-PETITION SECURED CREDITOR UNDER THE
PRE-PETITION SECURITY AGREEMENT MAY HAVE AN INTEREST AND SHALL HAVE PROVIDED, AS
ADEQUATE PROTECTION FOR THE USE OF SUCH CASH COLLATERAL AND THE AGGREGATE
REDUCTION IN THE PRE-PETITION COLLATERAL AS A CONSEQUENCE OF THE PRIMING LIENS
DESCRIBED IN SECTION 2.17 AND THE IMPOSITION OF THE AUTOMATIC STAY PURSUANT TO
SECTION