THE LOAN PARTIES SHALL BE IN PRO FORMA
COMPLIANCE WITH THE FINANCIAL COVENANTS SET FORTH IN SECTIONS 9.1 AND 9.2.
(S)
SECOND LIEN TERM LOANS.
THE BORROWER SHALL HAVE BORROWED
$250,000,000 IN AGGREGATE PRINCIPAL AMOUNT UNDER THE SECOND LIEN CREDIT
AGREEMENT.
(T)
EQUITY PROCEEDS.
PARENT SHALL HAVE RECEIVED (I) NET PROCEEDS IN
A MINIMUM AMOUNT OF $650,000,000 FROM THE SALE OF NEW PARENT COMMON STOCK
(COMPRISED OF AT LEAST (A) $505,500,000 FROM THE SALE OF PARENT COMMON STOCK
PURSUANT TO A RIGHTS OFFERING TO PARENT NOTEHOLDERS THAT IS FULLY BACKSTOPPED BY
A GROUP OF PARENT NOTEHOLDERS (THE "PARENT BACKSTOP GROUP"), (B) $75,000,000
FROM A DIRECT DISCOUNTED PURCHASE OF PARENT COMMON STOCK BY THE PARENT BACKSTOP
GROUP, (C) $50,000,000 FROM A DIRECT UNDISCOUNTED PURCHASE OF PARENT COMMON
STOCK BY THE PARENT BACKSTOP GROUP AND (D) $19,500,000 FROM THE CONVERSION OF
CLAIMS IN RESPECT OF THE 12 1⁄4% NOTES DUE 2016 OF HOLDINGS (THE "SFO NOTES")) AND
(II) ADDITIONAL EQUITY CAPITAL OF AT LEAST (A) $25,000,000 FROM THE SALE OF
ADDITIONAL COMMON STOCK PURSUANT TO THE DELAYED DRAW EQUITY COMMITMENT UNDER
WHICH AT LEAST $25,000,000 CAN BE RAISED FROM THE SALE OF ADDITIONAL COMMON
STOCK IF THE BOARD OF DIRECTORS OF PARENT DETERMINES THAT SUCH ADDITIONAL EQUITY
CONTRIBUTION IS NECESSARY BETWEEN THE DATE ON WHICH THE CONFIRMATION ORDER
BECOMES EFFECTIVE AND JUNE 1, 2011, AND (B) $50,000,000 FROM THE CONVERSION OF
CLAIMS IN RESPECT OF THE SFO NOTES TO FUND THE PAYMENT OF POST-PETITION INTEREST
IN RESPECT OF THE SFO NOTES IF THE BANKRUPTCY COURT ALLOWS SUCH CLAIMS;
PROVIDED, HOWEVER, THAT IN THE CASE OF CLAUSES (I)(D) AND (II)(B) ABOVE, PARENT
MAY RECEIVE CASH IN SUCH AMOUNTS FROM SUCH HOLDERS OF CLAIMS (AS OPPOSED TO AND
IN LIEU OF A CONVERSION OF CLAIMS).
(U)
MANAGEMENT, ETC.
THE SENIOR MANAGEMENT OF THE LOAN PARTIES AS OF
NOVEMBER 30, 2009 SHALL CONTINUE TO BE SENIOR MANAGEMENT OF PARENT UPON
CONFIRMATION OF THE
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PLAN OF REORGANIZATION AND NO CHANGE OF SUCH SENIOR MANAGEMENT SHALL HAVE BEEN
PUBLICLY ANNOUNCED. THE BUSINESS PLAN FOR PARENT, HOLDINGS AND THE BORROWER ON
THE CLOSING DATE SHALL BE CONSISTENT WITH THAT DESCRIBED IN THE PLAN OF
REORGANIZATION.
7.2.
Conditions to Each Extension of Credit.
The
agreement of each Lender to make any extension of credit requested to be made by
it hereunder on any date (including, without limitation, its initial extension
of credit) is subject to the satisfaction of the following conditions precedent:
(A)
REPRESENTATIONS AND WARRANTIES.
EACH OF THE REPRESENTATIONS AND
WARRANTIES MADE BY ANY LOAN PARTY IN OR PURSUANT TO THE LOAN DOCUMENTS SHALL BE
TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF SUCH DATE AS IF MADE ON
AND AS OF SUCH DATE, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES
EXPRESSLY RELATE TO AN EARLIER DATE, IN WHICH CASE SUCH REPRESENTATIONS AND
WARRANTIES WERE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF SUCH EARLIER
DATE, PROVIDED, THAT, TO THE EXTENT ANY SUCH REPRESENTATION AND WARRANTY IS
ALREADY QUALIFIED BY MATERIALITY