2021-03-16_GENERAL DOCUMENTS - C1980004

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CM;sB:2M6lblfaa1M3 DtD@3B13-EilelFW3BM/2EntEatfalIH'MMS�:1Desb"ain D&b hiestt P1RggtYYmb987 CbEa;d.2M6RAaa,W3 Dfin23813-EilegOWIEM12EnteatibQWM i MSM492:1DesD"ain DGchikeot P@ggff2bb987 (iii) the non-refundable and, upon entry of the Interim Order, irrevocable payment to the DIP Agents and/or the DIP Lenders, as the case may be, of all fees, whether paid pursuant to the Interim Order or this Final Order, including, without limitation, any origination fees, exit fees, prepayment fees, agency fees, administrative agents' fees, and collateral agents' fees, (which fees, in each case, were, and were deemed to have been, approved upon entry of the Interim Order, and which fees shall not be subject to any challenge, contest, attack, rejection, recoupment, reduction, defense, counterclaim, offset, subordination, recharactemation, avoidance or other claim, cause of action or other challenge of any nature under the Bankruptcy Code, under applicable non - bankruptcy law or otherwise) and any amounts due (or that may become due) in respect of the indemnification obligations, in each case referred to in the DIP Credit Agreement (and in any separate letter agreements between any or all Credit Parties, on the one hand, and any of the DIP Agents and/or DIP Lenders, on the other, in connection with the DIP Financing) and the costs and expenses as may be due from time to time, including, without limitation, fees and expenses of the following professionals retained by the DIP Agents and/or DIP Lenders, whether incurred before or after the Petition Date: (i) Stroock & Stroock & Lavan LLP ("Strocek"), counsel to the DIP Agents, (ii) one local bankruptcy counsel to the DIP Agent in the Southern District of Ohio (which may be the same local counsel to the DIP Lenders, as noted below), and, solely to the extent necessary to enforce rights and remedies under the DIP Documents, one counsel to the DIP Agent in each local jurisdiction, in each case which counsel may be the same as counsel representing the DIP Lenders in such capacity, (iii) Stroock, counsel to the DIP 20 NY 7r179967 �7b X 39 2 NV 78179967 C81a3d:PM0ks&a2W3 DOD9393-File#OWMM/2Entealf(EfMMMSB42:10esb"ain DDchihestt P@ggfP32b197 Financing, and each DIP Lender or each DIP Agent may rely upon each Credit Party's representations that the amount of DIP Financing requested at any time and the use thereof are in accordance with the requirements of this Final Order and the DIP Documents. (e) Subject to the terms and conditions of this Final Order, the DIP Agents are hereby authorized and directed to execute, enter into and perform all rights and obligations under the DIP Documents. 10. Carve -Out. (a) Notwithstanding anything to the contrary herein, the Debtors' obligations to the DIP Secured Parties and the liens, security interests and superpriority claims granted herein and/or under the DIP Documents, including the DIP Liens, the DIP Superprionty Claims, the Adequate Protection Liens, and the Adequate Protection 507(b) Claims, as well as the Prepetition Liens, shall be subject in all respects to the Carve -Out. (b) Carve-Oul. As used in this Final Order, the "Carve -Out" means the sum of (i) all fees required to be paid to the Clerk of the Court and to the Office of the United States Trustee under section 1930(a) of title 28 of the United States Code plus interest at the statutory rate (without regard to the notice set forth in (iii) below); (ii) all reasonable fees and expenses up to $20,000.00 incurred by a trustee under section 726(b) of the Bankruptcy Code (without regard to the notice set forth in (iii) below); (iii) to the extent allowed at any time, whether by interim order, procedural order, or otherwise, all unpaid fees and expenses (including any restructuring, sale, financing, or other success fee of any investment bankers or financial advisors of the Debtors or the Creditors' Committee, in each case solely to the extent such fee is earned pursuant to the terms of the applicable agreement giving rise to such fee, prior to delivery of a Carve -Out Lenders; (iv) Jackson Kelly PLLC, as local counsel for the DIP Lenders; (v), in each case of the foregoing (i)-(iv), solely to the extent provided for in the DIP Documents (the "DIP Fees and Expenses"), without the need to file retention motions or fee applications or to provide notice to any party; and (iv) the performance of all other acts required under or in connection with the DIP Documents, including the granting of the DIP Liens and DIP Superpriority Claims and perfection of the DIP Liens and DIP Superprionty Claims as permitted herein and therein. (c) Upon execution and delivery of the DIP Documents, each of the DIP Documents shall constitute valid, binding, enforceable, and non -avoidable obligations of the Credit Parties, fully enforceable against each Credit Patty in accordance with the terms of the DIP Documents and this Final Order. No obligation, payment, transfer or grant of security under the DIP Documents or this Final Order to the DIP Agents (including their Representatives) and/or the DIP Lenders and other DIP Secured Parties (including their Representatives) shall be stayed, restrained, voidable or recoverable under the Bankruptcy Code or under any applicable law (including, without limitation, under sections 502(d), 544, 548 or 549 of the Bankruptcy Code, any applicable Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or other similar state statute or common law), or subject to any defense, reduction, recoupment, recharacterization, subordination, disallowance, impairment, cross -claim, claim, counterclaim, or offset. (d) No DIP Lender, DIP Administrative Agent or the DIP Collateral Agent shall have any obligation or responsibility to monitor any Credit Party's use of the DIP 21 NY 78179967 ♦9 -7UI1 36.2 NY 79179867 C&s4:PD01blt 3 Dft23M3-Eile6iDWI M/2EnteneE $ MM=5030*2:1DesDUain DBchiokik P@(jg&II37b987 Trigger Notice) (the "Allowed Professional Fees") incurred by persons or firms retained by the Debtors pursuant to section 327, 328, or 363 of the Bankruptcy Code (the "Debtor Professionals") and the Creditors' Committee pursuant to section 328 or 1103 of the Bankruptcy Code (the "Committee Professionals" and, together with the Debtor Professionals, the "Professional Persona"), in each case, subject to the Approved Cash Flow Forecast only for purposes of payment but not for earning or accrual, at any time before the first business day following delivery by the DIP Administrative Agent of a Carve -Out Trigger Notice (as defined below), whether allowed by the Court prior to or after delivery of a Carve -Out Trigger Notice; and (iv) Allowed Professional Fees of Professional Persons in an aggregate amount not to exceed $300,000.00 incurred on or after the first business day following delivery by the DIP Administrative Agent of the Carve -Out Trigger Notice, to the extent allowed at any time, whether by interim order, procedural order, or otherwise (the amounts set forth in this clause (iv) being the "Post -Carve -Out Trigger Notice Cap"). For purposes of the foregoing, "Carve -Out Trigger Notice" shall mean a written notice delivered by email (or other electronic means) by the DIP Administrative Agent to the Debtors, their lead restructuring counsel, the U.S. Trustee, and counsel to the Creditors' Committee, which notice may be delivered upon the acceleration of the DIP Obligations under the DIP Facilities, stating that the Post -Carve -Out Trigger Notice Cap has been invoked. (c) Any provisions of the Interim Order, this Final Order, or the DIP Credit Agreement to the contrary notwithstanding, including the grant of the DIP Superpriority Claims set forth in Paragraph 11 below and the grant of the DIP Liens set forth in Paragraph 12 below and the Adequate Protection Liens set forth in Paragraph 18 below, until the occurrence of a 22 NY 76179r67 48µ7361-0 92 NY 7617M7 NY 7B1>9r67 NY 75179M7 B2 NV 79178667 23