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<br />(a) Remedies Upon an Event of Default. If an Event of Default shall have
<br />occurred and be continuing, the DIP Agents for the benefit of the DIP Secured Parties shall, with
<br />respect to any Real Property Lease or group of Real Property Leases, he permitted, and are
<br />hereby authorized, approved, and granted the following rights and remedies: only to the extent
<br />permitted by applicable law, and after advance written notice to the counterparty to the Real
<br />Property Lease (and affording the Counterparty an opportunity to he heard in this Court on
<br />notice with respect to the foregoing), to access the leasehold interests of the Debtors or debtors in
<br />possession in any such Real Property Lease(s) for the purpose of (A) marketing such property or
<br />properties for sale and (B) removing any Collateral thereon or arranging for the Asset Sale of any
<br />such Collateral except to the extent prohibited by the terms of the Real Property Lease (unless
<br />the applicable provision is rendered ineffective by applicable non-bankmptcy law or the
<br />Bankruptcy Code); provided that the foregoing shall not preclude any coumerparty to a Real
<br />Property Lease (each, a "Counterparty") from an opportunity to be heard in this Court on notice
<br />with respect to the foregoing.
<br />(b) Right to Credit Bid. Prior to any assumption and assignment of any Real
<br />Property Lease or group of Real Property Leases under Bankruptcy Code Sections 363 and 365,
<br />the Debtors shall first provide at least five (5) business days' prior written notice (the "Initial
<br />Notice Period") to the DIP Agents, unless such notice provision is waived by the DIP Agents
<br />and the DIP Requisite Lenders, which Initial Notice Period may be extended up to a further
<br />twenty-five (25) days by the DIP Agents or the DIP Requisite Lenders in each of their sole
<br />discretion by delivering written notice of such extension to the Debtors prior to expiration of the
<br />Initial Notice Period, and by any further period as is mutually agreeable between the DIP Agents
<br />52
<br />NY ]8179867
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<br />(c) DIP Lenders' Right to Cure Defaults. If any of the Debtors are required to
<br />cure any monetary defaults under any Real Property Lease pursuant to any order of this Court or
<br />otherwise in connection with any assumption or assumption and assignment of any such Real
<br />Property Lease pursuant to section 365(f) of the Bankruptcy Code, and such monetary default is
<br />not, within five (5) business days of the receipt by such Debtor of notice from the DIP Agents
<br />pursuant to the applicable provision(s) of the DIP Credit Agreement or any other notice from the
<br />DIP Agents requesting the cure of such monetary default, cured in accordance with the
<br />provisions of such applicable court order as arranged by the DIP Agents, the DIP Agents may
<br />cure any such monetary defaults on behalf of the applicable Debtor(s).
<br />(d) Priorities. For the avoidance of doubt, nothing set forth in this paragraph
<br />23 shall affect the relative priorities of liens and claims set forth herein.
<br />24. Approved Cash Flow Forecast. The Approved Cash Flow Forecast is approved on
<br />a final basis. Proceeds of the DIP Facility and Cash Collateral under this Final Order shall be
<br />used by the Credit Parties in accordance with the DIP Credit Agreement and this Final Order and
<br />consistent with the Approved Cash Flow Forecast or as otherwise agreed by the DIP Agents
<br />(subject to Permitted Variances). None of the DIP Secured Parties' consent to, or
<br />acknowledgment of, the Approved Cash Flow Forecast shall be construed as consent to use of
<br />the proceeds of the DIP Facilities or Cash Collateral beyond the maturity date set forth in the
<br />DIP Credit Agreement, regardless of whether the aggregate funds shown on the Approved Cash
<br />Flow Forecast have been expended.
<br />25. Payment of Fees and Expenses. The Credit Parties are authorized to pay the DIP
<br />Fees and Expenses, as provided in the DIP Documents and in accordance with the Approved
<br />or the DIP Requisite Lenders and the Company (such notice period being the "Aggregate Notice
<br />Period"). During such notice period, the DIP Agents shall be permitted, subject to the terms of
<br />the DIP Documents and unless otherwise ordered by the Court, to participate in an auction sale
<br />for the Real Property Lease(s) and to credit bid forgiveness of some or all of the outstanding DIP
<br />Obligations (in an amount equal to at least the consideration offered by any other party in respect
<br />of such assignment) outstanding under the DIP Facilities as consideration in exchange for any
<br />such Real Property Lease(s) and pay to the Real Property Lease counterparty, in cash all amounts
<br />necessary to cure any monetary defaults under the Real Property Leases, provided that to the
<br />extent the Company is entitled to retain a portion of the total consideration paid in respect of
<br />such assignment in accordance with the DIP Credit Agreement, the applicable portion of the
<br />consideration to be retained by Company shall be paid in cash (provided that such proceeds shall
<br />constitute DIP Collateral and Cash Collateral). In addition, and in connection with any sale of
<br />any Real Property Lease(s), the DIP Agents, on behalf of the DIP Lenders, shall be permitted to
<br />credit bid (subject to paragraph 27(a)(i) hereof) forgiveness of some or all of the outstanding
<br />DIP Obligations (in an amount equal to at least the consideration offered by any other party in
<br />respect of such sale or other Asset Sale) as consideration in exchange for such Real Property
<br />Lease(s), plus pay cash to the counterparty(ies) to the Real Property Lease(s) an amount
<br />necessary to cure any monetary defaults under the Real Property Leaw(s). Pursuant to section
<br />364(e) of the Bankruptcy Code, absent a stay pending appeal, the DIP Lenders' right to credit bid
<br />shall not be affected by the reversal or modification on appeal of the Debtors' authorization
<br />pursuant to this Final Order to obtain credit and incur debt as and in accordance with the terms
<br />set forth herein.
<br />53
<br />NY 78179867
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<br />Cash Flow Forecast. Subject to the review procedures set forth in this paragraph 25, payment of
<br />all DIP Fees and Expenses and Adequate Protection Fees and Expenses shall not be subject to
<br />allowance or review by the Court. Professionals for the DIP Secured Parties and the Prepetition
<br />Secured Parties shall not be required to comply with the U.S. Trustee fee guidelines, however
<br />any time that such professionals seek payment of fees and expenses from the Debtors after the
<br />closing of the DIP Facility and prior to confirmation of a chapter I I plan, each professional shall
<br />provide summary copies of its invoices (which shall not be required to contain time entries and
<br />which may be redacted or modified to the extent necessary to delete any information subject to
<br />the attorney -client privilege, any information constituting attorney work product, or any other
<br />confidential information, and the provision of such invoices shall not constitute any waiver of the
<br />attorney client privilege or of any benefits of the attorney work product doctrine) to the Debtors,
<br />the U.S. Trustee and counsel for the Creditors' Committee (together, the "Review Parties').
<br />Any objections raised by the Review Parties with respect to such invoices must be in writing and
<br />state with particularity the grounds therefor and must be submitted to the applicable professional
<br />within ten (10) days of the receipt of such invoice (the "Review Period"). If no written objection
<br />is received by 12:00 p.m., prevailing Eastern Time, on the end date of the Review Period, the
<br />Credit Parties shall pay such invoices within three (3) days. If an objection to a professional's
<br />invoice is received within the Review Period, the Credit Parties shall promptly pay the
<br />undisputed amount of the invoice and this Court shall have jurisdiction to determine the disputed
<br />portion of such invoice if the parties are unable to resolve the dispute consensually.
<br />Notwithstanding the foregoing, the Debtors are authorized and directed to pay on or after the
<br />Closing Date the DIP Fees and Expenses and Adequate Protection Fees and Expenses incurred
<br />54
<br />NY ]rl]9867
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