EXCEPT FOR THE CARVE OUT, NO COSTS OR
EXPENSES OF ADMINISTRATION SHALL BE IMPOSED AGAINST THE AGENTS, THE LENDERS OR
ANY OF THE COLLATERAL UNDER SECTIONS 105 OR 506(C) OF THE BANKRUPTCY CODE, OR
OTHERWISE, AND EACH OF THE LOAN PARTIES HEREBY WAIVES FOR ITSELF AND ON BEHALF
OF ITS ESTATE IN BANKRUPTCY, ANY AND ALL RIGHTS UNDER SECTIONS 105 OR 506(C), OR
OTHERWISE, TO ASSERT OR IMPOSE OR SEEK TO ASSERT OR IMPOSE, ANY SUCH COSTS OR
EXPENSES OF ADMINISTRATION AGAINST ANY AGENT OR THE LENDERS.
(C)
SUBJECT TO THE DIP ORDER AND SECTION 8 HEREOF, UPON THE MATURITY
(WHETHER BY ACCELERATION OR OTHERWISE) OF ANY OF THE OBLIGATIONS UNDER THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, LENDERS SHALL BE ENTITLED TO
IMMEDIATE PAYMENT OF SUCH OBLIGATIONS WITHOUT FURTHER APPLICATION TO OR ORDER OF
THE BANKRUPTCY COURT.
(D)
THE LOAN PARTIES AGREE THAT (I) THE OBLIGATIONS HEREUNDER SHALL
NOT BE DISCHARGED BY THE ENTRY OF AN ORDER CONFIRMING A PLAN OF REORGANIZATION
IN ANY CASE (AND THE LOAN PARTIES, PURSUANT TO SECTION 1141(D)(4) OF THE
BANKRUPTCY CODE, HEREBY WAIVE ANY SUCH DISCHARGE) AND (II) THE SUPER-PRIORITY
ADMINISTRATIVE CLAIM GRANTED TO THE COLLATERAL AGENT AND LENDERS PURSUANT TO THE
DIP ORDER AND THE LIENS GRANTED TO THE COLLATERAL AGENT PURSUANT TO THE DIP
ORDER SHALL NOT BE AFFECTED IN ANY MANNER BY THE ENTRY OF AN ORDER CONFIRMING A
PLAN OF REORGANIZATION IN ANY CASE.
(E)
UPON THE CLOSING DATE, AND ON BEHALF OF THEMSELVES AND THEIR
ESTATES, AND FOR SO LONG AS ANY OBLIGATIONS OR COMMITMENTS SHALL BE OUTSTANDING,
THE LOAN PARTIES HEREBY IRREVOCABLY WAIVE ANY RIGHT, PURSUANT TO SECTIONS 364(C)
OR 364(D) OF THE BANKRUPTCY CODE OR OTHERWISE, TO GRANT ANY LIEN OF EQUAL OR
GREATER PRIORITY THAN THE LIENS SECURING THE OBLIGATIONS, OR TO APPROVE A CLAIM
OF EQUAL OR GREATER PRIORITY THAN THE OBLIGATIONS, EXCEPT AS EXPRESSLY PERMITTED
UNDER THE DIP ORDER.
Notwithstanding the foregoing, so long as no Default or Event of Default shall
have occurred and be continuing, the Borrower and the Guarantors shall be
permitted to pay fees and expenses allowed and payable under Sections 330 and
331 of the Bankruptcy Code, as the same may be due and payable, and the same
shall not reduce the Carve-Out.
SECTION 4
REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement and to make
the Loans and issue or participate in the Letters of Credit, each of Holdings,
NWAC, NWA and the Borrower hereby jointly and severally represent and warrant to
each Agent and Lender that:
4.1
FINANCIAL CONDITION; FINANCIAL OUTLOOK.
(A)
THE AUDITED CONSOLIDATED BALANCE SHEETS OF HOLDINGS AND ITS
SUBSIDIARIES AS AT DECEMBER 31, 2005, AND THE RELATED CONSOLIDATED STATEMENTS OF
OPERATIONS, OF COMMON STOCKHOLDERS' DEFICIT AND OF CASH FLOWS FOR THE FISCAL
YEAR ENDED ON SUCH DATE, REPORTED ON BY ERNST & YOUNG LLP, PRESENT FAIRLY IN ALL
MATERIAL RESPECTS THE CONSOLIDATED FINANCIAL CONDITION OF SUCH ENTITIES AS AT
SUCH DATE, AND THE CONSOLIDATED