SHALL BE IN PRO FORMA COMPLIANCE
WITH THE FINANCIAL COVENANTS SET FORTH IN SECTIONS 7.1 AND 7.2.
59
(S)
FIRST LIEN TERM LOANS.
THE BORROWER SHALL HAVE BORROWED $770,000,000 IN
AGGREGATE PRINCIPAL AMOUNT UNDER THE FIRST 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 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.
(V)
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 THE CLOSING 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 OR BY
REFERENCE TO MATERIAL ADVERSE EFFECT, SUCH REPRESENTATION SHALL BE TRUE AND
CORRECT IN ALL RESPECTS.
(W)
NO DEFAULT.
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING ON THE CLOSING DATE OR AFTER GIVING EFFECT TO THE MAKING OF THE
LOANS.
SECTION 6.
AFFIRMATIVE COVENANTS
Parent, Holdings and the Borrower hereby jointly