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<br />actions, at the same or different time, in each case without further order or application of the
<br />Court: (i) the DIP Secured Parties may, upon the occurrence of an Event of Default (a)
<br />immediately terminate the Debtors' limited use of any Cash Collateral, (b) cease making any
<br />DIP Loans, and terminate, reduce or restrict any further DIP Commitment to the extent any such
<br />DIP Commitment remains, (c) declare all DIP Obligations immediately due, owing and payable,
<br />without presentment, demand, protest, or other notice of any kind, all of which are expressly
<br />waived by the Credit Parties, notwithstanding anything herein or in any DIP Document to the
<br />contrary, (d) freeze any monies or balances in the Debtors' accounts and sweep all funds in the
<br />Debtors' deposit accounts, (e) immediately setoff all amounts in accounts maintained by the
<br />Debtors with the DIP Agent or any DIP Lenders against the DIP Obligations, or otherwise
<br />enforce all rights against the DIP Collateral in the possession of the DIP Agent or DIP Lenders
<br />(including the disposition of DIP Collateral solely for application to DIP Obligations), and (f)
<br />take any other action or exercise any other remedy permitted under the DIP Orders, the DIP
<br />Documents, or applicable law, and (ii) Debtors waive any right to seek relief under the
<br />Bankruptcy Code, including section 105, to the extent such relief would impair or restrict the
<br />rights and remedies of the DIP Agent and DIP Lenders set forth in the DIP Orders (as defined in
<br />the Motion) and the DIP Documents; provided however that, prior to the exercise of any rights
<br />in clauses (i)(d), (e) and (f) of this paragraph, the DIP Agent or DIP Lenders, as applicable, shall
<br />be required to provide five (5) calendar days' notice to counsel to the Debtors, counsel to the
<br />Creditors' Committee, and the U.S. Trustee of their intent to exercise their rights and remedies
<br />(the "Remedies Notice Period").
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<br />NY 78179867
<br />NV 78179887
<br />Ct3Esd:2fg6RAaC@M3 DGm23B13-EilegfiWM IB/2Ent6l)tpt?$ MMAB5BA8:1DesD"ain
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<br />14. Proceeds of Subsequent Financing. Without limiting the provisions and
<br />protections provided for herein, but subject in all respects to the Carve -Out, if at any time prior
<br />to the repayment in full in accordance with the DIP Documents of all the DIP Obligations
<br />(including subsequent to the confirmation of any chapter I I plan or plans with respect to any of
<br />the Debtors), the Debtors' estates, any trustee, any examiner with enlarged powers, or any
<br />responsible officer subsequently appointed shall obtain credit or incur debt pursuant to sections
<br />364(b), 364(c), 364(d), or any other provision of the Bankruptcy Code in violation of this Final
<br />Order or the DIP Documents, then, unless otherwise agreed by the DIP Requisite Lenders, all of
<br />the cash proceeds derived from such credit or debt and all Cash Collateral shall immediately be
<br />turned over to the DIP Collateral Agent for application to the DIP Obligations until such DIP
<br />Obligations are paid in full.
<br />15. Limitation on Charging Expenses Against Collateral. Except to the extent of the
<br />Carve Out, no costs or expenses of administration of the Chapter I I Cases or any future
<br />proceeding that may result therefrom, including liquidation in bankruptcy or other proceedings
<br />under the Bankruptcy Code, shall be charged against or recovered from the Collateral (including
<br />Cash Collateral) pursuant to section 506(c) of the Bankruptcy Code or any similar principle of
<br />law, without the prior written consent of the DIP Agent or the Prepetition Agent, as applicable,
<br />and no such consent shall he implied from any other action, inaction or acquiescence by the DIP
<br />Secured Parties or the Prepetition Secured Parties, and nothing contained in this Final Order shall
<br />be deemed to be a consent by the DIP Secured Parties to any charge, lien, assessment or claims
<br />against the Collateral under section 506(c) of the Bankruptcy Code or otherwise; provided,
<br />however, that solely in the event that the DIP Commitments are not fully funded by the DIP
<br />(e) During the Remedies Notice Period, the Credit Parties shall be permitted
<br />to use Cash Collateral only to pay the following amounts and expenses in accordance with the
<br />Approved Cash Flow Forecast to (i) the Carve -Out, (ii) the expenses that the Debtors and the
<br />DIP Requisite Lenders have determined in good faith are in the ordinary course and critical to
<br />the preservation of the Debtors and their estates, and (iii) such other amounts as approved in
<br />advance in writing by the DIP Requisite Lenders. Before or during the Remedies Notice Period,
<br />(x) the Debtors shall be entitled to seek an emergency hearing with the Court before or within the
<br />Remedies Notice Period solely for the purpose of contesting whether, in fact, an Event of Default
<br />has occurred and is continuing, and (y) the DIP Lenders shall not contest holding such a hearing
<br />on an emergency basis.
<br />(f) In no event shall the DIP Agents, the DIP Lenders, or the Prepetition
<br />Secured Parties be subject to the equitable doctrine of "marshaling" or any similar doctrine with
<br />respect to the Prepetition Collateral or the DIP Collateral. Further, in no event shall the "equities
<br />of the case" exception in section 552(b) of the Bankruptcy Code apply to the secured claims of
<br />the Prepetition Secured Parties.
<br />(g) No rights, protections or remedies of the DIP Agents, the DIP Lenders, or
<br />the Prepetition Secured Parties granted by the provisions of this Final Order or the DIP
<br />Documents shall be limited, modified or impaired in any way by: (i) any actual or purported
<br />withdrawal of the consent of any party to the Debtors' authority to continue to use Cash
<br />Collateral; (it) any actual or purported termination of the Debtors' authority to continue to use
<br />Cash Collateral; or (iii) the terms of any other order or stipulation related to the Debtors'
<br />continued use of Cash Collateral or the provision of adequate protection to any party.
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<br />NY 1.179961
<br />NY 781 s867 .2
<br />NV ]8179867
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<br />D6abihitok P@ggaiB2)b987
<br />Lenders, any waiver under section 506(c) of the Bankruptcy Code by the Debtors shall not apply
<br />to claims arising prior to the Termination Declaration Date (defined below) from the furnishing
<br />of goods or services for which payment is provided for in accordance with the Approved Cash
<br />Flow Forecast.
<br />16. Payments Free and Clear. Any and all payments or proceeds remitted to the DIP
<br />Agents by, through or on behalf of the DIP Secured Parties pursuant to the provisions of the
<br />Interim Order or this Final Order or the DIP Documents (including, without limitation, the
<br />Approved Cash Flow Forecast (subject to Permitted Variances)) shall be irrevocable, received
<br />frce and clear of any claim, charge, assessment or other liability, including without limitation,
<br />any such claim or charge arising out of or based on, directly or indirectly, sections 506(c)
<br />(subject to paragraph 15 hereof) or 552(b) of the Bankruptcy Code, whether asserted or assessed
<br />by through or on behalf of the Debtors.
<br />IT Use of Cash Collateral. The Debtors are hereby authorized, subject to the terms
<br />and conditions of this Final Order, to use Cash Collateral; provided that (a) the Pmpetition
<br />Secured Parties are granted the Adequate Protection as hereinafter set forth and (b) except on the
<br />terms and conditions of this Final Order, the Debtors shall be enjoined and prohibited from at
<br />any time using the Cash Collateral absent further order of the Court.
<br />18. Adequate Protection of Prepetition Secured Parties. Subject to the Carve -Out in
<br />all respects, the Prepetition Secured Parties are entitled, pursuant to sections 361, 362, 363(e),
<br />364(d)(1) and 507 of the Bankruptcy Code, to adequate protection of their interests in all
<br />Prepetition Collateral, including Cash Collateral, for and equal in amount to the aggregate
<br />diminution in the value of the Pmpetition Secured Parties' interests in the Prepetition Collateral
<br />IR
<br />NY 78179967
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