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 AND THE INITIAL LENDERS.
(X)
AUDITED CONSOLIDATED FINANCIAL STATEMENTS
OF THE BORROWER AND ITS SUBSIDIARIES AS AT DECEMBER 31, 2008 FOR THE FISCAL YEAR
THEN ENDED.
(XI)
A NOTICE OF BORROWING FOR ANY BORROWING TO
BE MADE, AND/OR ONE OR MORE LETTER OF CREDIT APPLICATIONS FOR EACH LETTER OF
CREDIT TO BE ISSUED, ON THE EFFECTIVE DATE.
(XII)
A FAVORABLE OPINION OF KIRKLAND & ELLIS LLP,
COUNSEL TO THE LOAN PARTIES, IN SUBSTANTIALLY THE FORM OF EXHIBIT D-1 HERETO.
67
(B)
INTERIM ORDER.
AT THE TIME OF THE INITIAL
EXTENSION OF CREDIT, 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 (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
RESPECT OF (X) THE NON-ROLLUP REVOLVING CREDIT FACILITY IN AN AGGREGATE AMOUNT
OF UP TO $25,000,000 AND (Y) THE TERM FACILITY IN AN AGGREGATE AMOUNT OF UP TO
$165,000,000, (B) SHALL AUTHORIZE AND DIRECT THE INDEFEASIBLE REPAYMENT OF ANY
OBLIGATIONS UNDER THE EXISTING RECEIVABLES FACILITY, WHICH REPAYMENT SHALL NOT
BE SUBJECT TO ANY FUTURE CHALLENGE BY ANY PERSON, (C) SHALL HAVE BEEN ENTERED
UPON AN APPLICATION OR MOTION OF THE BORROWER AND EACH GUARANTOR REASONABLY
SATISFACTORY IN FORM AND SUBSTANCE TO THE INITIAL LENDERS, ON SUCH PRIOR NOTICE
TO SUCH PARTIES AS MAY IN EACH CASE BE REASONABLY SATISFACTORY TO THE INITIAL
LENDERS, (D) 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 AND
(E) SHALL HAVE BEEN ENTERED NOT LATER THAN FIVE DAYS AFTER THE PETITION DATE;
(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 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