EVENT OF DEFAULT
OR (Y) AFTER THE FINAL TERM ADVANCE DATE, THE AVAILABILITY SHALL HAVE BEEN LESS
THAN $75,000,000.
(F)
USE OF PROCEEDS.
USE THE PROCEEDS OF THE ADVANCES SOLELY FOR THE
PURPOSES, AND SUBJECT TO THE RESTRICTIONS, SET FORTH IN SECTION 2.14.
(G)
RESTRUCTURING ADVISOR; FINANCIAL ADVISOR.
RETAIN AT ALL TIMES
(I) A RESTRUCTURING ADVISOR AND (II) A FINANCIAL ADVISOR THAT, IN EACH CASE, HAS
SUBSTANTIAL EXPERIENCE AND EXPERTISE ADVISING CHAPTER 11 DEBTORS-IN-POSSESSION
IN LARGE AND COMPLEX BANKRUPTCY CASES (IT BEING UNDERSTOOD THAT ALVAREZ & MARSAL
AND LAZARD ARE ADVISORS DESCRIBED IN THIS CLAUSE (G)); PROVIDED THAT ANY FAILURE
TO COMPLY WITH THIS SECTION 5.01(G) SHALL NOT BE DEEMED TO HAVE OCCURRED SO LONG
AS THE LOAN PARTIES SHALL HAVE FILED A MOTION WITH THE BANKRUPTCY COURT TO
RETAIN A REPLACEMENT ADVISOR WITHIN 10 DAYS OF SUCH FAILURE.
77
(H)
PRIORITY.
ACKNOWLEDGE PURSUANT TO SECTION 364(C)(1) OF THE
BANKRUPTCY CODE, THE OBLIGATIONS OF THE LOAN PARTIES HEREUNDER AND UNDER THE
OTHER LOAN DOCUMENTS CONSTITUTE ALLOWED SUPERPRIORITY CLAIMS.
(I)
VALIDITY OF LOAN DOCUMENTS.
USE ITS COMMERCIALLY REASONABLE
EFFORTS TO OBJECT TO ANY APPLICATION MADE ON BEHALF OF ANY LOAN PARTY OR BY ANY
PERSON TO THE VALIDITY OF ANY LOAN DOCUMENT OR THE APPLICABILITY OR
ENFORCEABILITY OF ANY LOAN DOCUMENT OR WHICH SEEKS TO VOID, AVOID, LIMIT, OR
OTHERWISE ADVERSELY AFFECT THE SECURITY INTEREST CREATED BY OR IN ANY LOAN
DOCUMENT OR ANY PAYMENT MADE PURSUANT THERETO.
(J)
CASH MANAGEMENT SYSTEM.
MAINTAIN WITH THE ADMINISTRATIVE AGENT
AN ACCOUNT OR ACCOUNTS (I) TO BE USED BY THE BORROWER AND THE GUARANTORS AS
THEIR PRINCIPAL CONCENTRATION ACCOUNTS AND (II) INTO WHICH SHALL BE SWEPT OR
DEPOSITED, ON EACH BUSINESS DAY, ALL CASH OF THE BORROWER AND THE GUARANTORS IN
ALL OF THE OPERATING AND OTHER BANK ACCOUNTS OF THE BORROWER AND THE GUARANTORS
(OTHER THAN THE ACCOUNTS DESCRIBED IN THE PROVISO TO SECTION 5.01(K)) MAINTAINED
AT ANY INSTITUTION OTHER THAN CITIBANK; PROVIDED THAT THIS CLAUSE (II) SHALL NOT
APPLY TO ACCOUNTS IN WHICH THE AGGREGATE AMOUNT ON DEPOSIT FOR ALL SUCH ACCOUNTS
IS LESS THAN $500,000.
(K)
ACCOUNT CONTROL AGREEMENTS.
WITH RESPECT TO ALL LOCKBOXES AND
DEPOSIT ACCOUNTS OF EACH LOAN PARTY (OTHER THAN THOSE (FOR SO LONG AS CITIBANK
IS THE ADMINISTRATIVE AGENT HEREUNDER) MAINTAINED WITH CITIBANK), OBTAIN AND
DELIVER TO THE ADMINISTRATIVE AGENT, NO LATER THAN 10 DAYS FOLLOWING THE
EFFECTIVE DATE (OR SUCH LATER DATE AS THE ADMINISTRATIVE AGENT MAY REASONABLY
DETERMINE), ACCOUNT CONTROL AGREEMENTS IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE ADMINISTRATIVE AGENT; PROVIDED, HOWEVER, THAT THIS
SECTION 5.01(K) SHALL NOT APPLY TO (I) PAYROLL ACCOUNTS, TRUST ACCOUNTS,
EMPLOYEE BENEFITS ACCOUNTS AND TAX ESCROW ACCOUNTS, IN EACH CASE MAINTAINED IN
THE ORDINARY COURSE OF BUSINESS, AND (II) DEPOSIT ACCOUNTS TO THE EXTENT THE
AGGREGATE AMOUNT ON DEPOSIT IN EACH SUCH DEPOSIT ACCOUNT DOES NOT EXCEED
$100,000 AT ANY TIME AND THE AGGREGATE AMOUNT ON DEPOSIT IN ALL SUCH DEPOSIT
ACCOUNTS DOES NOT EXCEED $500,000 AT ANY TIME.
(L)
MORTGAGES.
OBTAIN AND DELIVER TO THE ADMINISTRATIVE AGENT,