Common use of Financing Matters Clause in Contracts

Financing Matters. Buyer shall comply with its obligations under the Debt Commitment Letter and shall use its reasonable efforts to consummate the Debt Financing on the terms and conditions described in the Debt Commitment Letter, including using its reasonable efforts to (i) negotiate definitive agreements with respect to the Financing on the terms and conditions contained in the Debt Commitment Letter and (ii) satisfy all conditions to the Debt Financing to the extent the satisfaction of such conditions is within the control of Buyer. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, Buyer will seek in good faith to arrange to obtain such portion from alternative sources on terms and conditions that are equivalent or more favorable to Buyer as promptly as practicable. Subject to the satisfaction by Seller of its obligations pursuant to Section 5.02, the conditions set forth in Section 10.01 and 10.02 (other than Section 10.02(e)) and the conditions to funding set forth in the Debt Commitment Letter (other than conditions the nonsatisfaction of which is solely the result of the failure of the Equity Financing to be consummated), Buyer will draw down on the Bridge Loans, the Senior Bridge Loans and the Senior Subordinated Bridge Loans (in each case, as defined in the Debt Commitment Letter) if adequate funding has not been obtained through the issuance of the Subordinated Notes and the Notes (in each case, as defined in the Debt Commitment Letter) and the senior secured portion of the Debt Financing, in each case, as necessary to enable the Debt Financing to be funded on or prior to the later of (A) May 31, 2006 and (B) the earlier of (1) June 30, 2006 and (2) the 30th day after the first date on which both (x) Seller shall have provided Buyer with all financial information reasonably necessary to complete an offering memorandum for the Subordinated Notes and Notes financing (it being understood that such requirement shall not be satisfied if such information would go “stale” within such 30-day period) and (y) the conditions set forth in Section 10.01(a), 10.01(b), 10.01(c), 10.02(b) and 10.02(c) have been satisfied and the parties reasonably expect that the condition set forth in Section 10.01(e) will be satisfied within 30 days. Buyer will give Seller prompt notice of any material breach by any party of the Debt Commitment Letter or any termination of the Debt Commitment Letter. To the extent reasonably requested by Seller, Buyer will keep Seller informed on a current basis in reasonable detail of the status of its efforts to consummate the Financing. Buyer will not agree to any material amendment or modification to, or grant or seek any waiver under, the Debt Commitment Letter without first consulting with Seller and, if such amendment, modification or waiver would or would reasonably be expected to adversely affect or delay in any material respect Buyer’s ability to consummate the Debt Financing or the Closing, receiving Seller’s prior written consent.

Financing Matters. Buyer shall comply with its obligations Until the First Lien Obligations have been Paid in Full, if any Grantor becomes subject to any Insolvency Proceeding, and if the First Lien Representative or one or more of the other First Lien Secured Parties desire to consent to the use of cash collateral under the Debt Commitment Letter Bankruptcy Code or to provide financing to any Grantor under the Bankruptcy Code (“DIP Financing”), then the Second Lien Representative agrees, on behalf of itself and shall the other Second Lien Secured Parties, that the Second Lien Representative and each Second Lien Secured Party (a) will be deemed to have consented to, will raise no objection to, nor support any other Person objecting to, the use its reasonable efforts to consummate the Debt Financing on the terms and conditions described in the Debt Commitment Letter, including using its reasonable efforts to (i) negotiate definitive agreements with respect to the Financing on the terms and conditions contained in the Debt Commitment Letter and (ii) satisfy all conditions to the Debt Financing to the extent the satisfaction of such conditions is within cash collateral or to such DIP Financing, (b) will not request or accept adequate protection or any other relief in connection with the control use of Buyer. If any portion of the Debt such cash collateral or such DIP Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, Buyer will seek in good faith to arrange to obtain such portion from alternative sources on terms and conditions that are equivalent or more favorable to Buyer except as promptly as practicable. Subject to the satisfaction by Seller of its obligations pursuant to Section 5.02, the conditions set forth in Section 10.01 5.04 below, (c) will subordinate (and 10.02 will be deemed hereunder to have subordinated) the second-priority Liens (i) to such DIP Financing on the same terms as the first-priority Liens are subordinated thereto (and such subordination will not alter in any manner the terms of this Agreement), (ii) to any adequate protection provided to the First Lien Secured Parties and (iii) to any “carve-out” for fees to the agent and any arranger in respect of such DIP Financing agreed to by the First Lien Representative and (d) agrees that notice received five calendar days prior to the entry of an order approving such usage of cash collateral or approving such financing shall be adequate notice; provided that (i) the aggregate principal amount of any DIP Financing, when taken together with any First Lien Obligations that are not repaid with such DIP Financing, shall not exceed an amount equal to the sum of (X) the First Lien Cap plus (Y) $100,000,000, (ii) the Liens on the collateral securing the DIP Financing are senior to or pari passu with the Liens securing the First Lien Obligations and (iii) the foregoing shall not prevent the Second Lien Secured Parties from (A) proposing any other than Section 10.02(e)DIP Financing to any Grantor or to a court of competent jurisdiction or (B) and objecting to (1) any aspect of a DIP Financing relating to any provision or content of a plan of reorganization or any sub xxxx plan or (2) any DIP Financing if the conditions to funding set forth Second Lien Secured Parties do not receive replacement Liens on all post-petition assets of any Grantors in the Debt Commitment Letter (other than conditions the nonsatisfaction of which is solely the result any of the failure of First Lien Secured Parties obtain a replacement Lien (to the Equity Financing to be consummatedextent that such assets constitute Collateral), Buyer will draw down on the Bridge Loans, the Senior Bridge Loans and the Senior Subordinated Bridge Loans (in each case, as defined in the Debt Commitment Letter) if adequate funding has not been obtained through the issuance of the Subordinated Notes and the Notes (in each case, as defined in the Debt Commitment Letter) and the senior secured portion of the Debt Financing, in each case, case with the same priority as necessary to enable the Debt Financing to be funded on or existed prior to the later of (A) May 31, 2006 and (B) the earlier of (1) June 30, 2006 and (2) the 30th day after the first date on which both (x) Seller shall have provided Buyer with all financial information reasonably necessary to complete an offering memorandum for the Subordinated Notes and Notes financing (it being understood that such requirement shall not be satisfied if such information would go “stale” within such 30-day period) and (y) the conditions set forth in Section 10.01(a), 10.01(b), 10.01(c), 10.02(b) and 10.02(c) have been satisfied and the parties reasonably expect that the condition set forth in Section 10.01(e) will be satisfied within 30 days. Buyer will give Seller prompt notice of any material breach by any party of the Debt Commitment Letter or any termination of the Debt Commitment Letter. To the extent reasonably requested by Seller, Buyer will keep Seller informed on a current basis in reasonable detail of the status of its efforts to consummate the Financing. Buyer will not agree to any material amendment or modification to, or grant or seek any waiver under, the Debt Commitment Letter without first consulting with Seller and, if such amendment, modification or waiver would or would reasonably be expected to adversely affect or delay in any material respect Buyer’s ability to consummate the Debt Financing or the Closing, receiving Seller’s prior written consentInsolvency Proceeding.

Financing Matters. Buyer shall comply with its obligations under the Debt Commitment Letter (a) Parent shall, and shall cause its Affiliates to, use its reasonable best efforts to consummate take, or cause to be taken, all actions and to do, or cause to be done, all things necessary to obtain the Debt Financing contemplated by the Commitment Letters so that the funds contemplated thereby are available on the terms and conditions described set forth in the Debt Commitment LetterLetters as promptly as practicable but in any event no later than the Closing Date, including using its reasonable best efforts to (i) comply with and maintain in full force and effect the Financing and the Commitment Letters, in each case in accordance with the terms and subject to the conditions thereof until the funding of the Financing, (ii) negotiate and enter into definitive financing agreements with respect to the Financing on the terms and conditions (including any “flex” provisions) contained in the Commitment Letters so that such agreements are in effect as promptly as practicable but in any event no later than the Closing Date (which definitive financing agreements shall not (1) reduce the amounts to be funded under the Financing (including by changing the amount of fees to be paid or original issue discount) from that contemplated in the Financing Commitment Letter (including the “flex provisions” of the fee letter included in the Debt Commitment Letter), below, together with the Equity Financing or the Debt Financing (as applicable), the Required Financing Amount on the Closing Date, (2) amend, modify or supplement the conditions precedent to the Financing in a manner that makes it materially less likely the Financing will be funded or imposes new or additional conditions precedent to the receipt of the Financing, or (3) otherwise delay funding in any non de minimis respect of the Financing or make funding of the Financing less likely to occur at the Closing, (iii) satisfy as promptly as practicable and on a timely basis all conditions to the Financing contemplated by the Commitment Letter and the definitive agreements relating to the Financing within Parent’s and its Affiliates’ control, (iv) accept to the fullest extent all “market flex” contemplated by the Debt Commitment Letter to the extent required by the Debt Commitment Letter and (iiv) satisfy all conditions to the Debt Financing to the extent the satisfaction of such conditions is within the control of Buyer. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, Buyer will seek in good faith to arrange to obtain such portion from alternative sources on terms and conditions that are equivalent or more favorable to Buyer as promptly as practicable. Subject to the satisfaction by Seller of enforce its obligations pursuant to Section 5.02, the conditions set forth in Section 10.01 and 10.02 (other than Section 10.02(e)) and the conditions to funding set forth in rights under the Debt Commitment Letter (other than conditions the nonsatisfaction of which is solely the result of the failure of the Equity Financing to be consummated), Buyer will draw down on the Bridge Loans, the Senior Bridge Loans and the Senior Subordinated Bridge Loans (in each case, as defined in the Debt Commitment Letter) if adequate funding has not been obtained through the issuance event of the Subordinated Notes and the Notes (in each case, as defined in the Debt Commitment Letter) and the senior secured portion of the Debt Financing, in each case, as necessary to enable the Debt Financing to be funded on or prior to the later of (A) May 31, 2006 and (B) the earlier of (1) June 30, 2006 and (2) the 30th day after the first date on which both (x) Seller shall have provided Buyer with all financial information reasonably necessary to complete an offering memorandum for the Subordinated Notes and Notes financing (it being understood that such requirement shall not be satisfied if such information would go “stale” within such 30-day period) and (y) the conditions set forth in Section 10.01(a), 10.01(b), 10.01(c), 10.02(b) and 10.02(c) have been satisfied and the parties reasonably expect that the condition set forth in Section 10.01(e) will be satisfied within 30 days. Buyer will give Seller prompt notice of any material a breach by any party of the Lenders under the Debt Commitment Letter or any termination of the Debt Commitment Letter. To the extent reasonably requested by Seller, Buyer will keep Seller informed on a current basis in reasonable detail of the status of its efforts definitive agreements entered into pursuant thereto relating to consummate the Financing. Buyer will not agree to any material amendment or modification to, or grant or seek any waiver under, the Debt Commitment Letter without first consulting with Seller and, if such amendment, modification or waiver would or would reasonably be expected to adversely affect or delay in any material respect Buyer’s ability to consummate the Debt Financing that would be reasonably likely to impede or delay the ClosingClosing in any non de minimis respect. Parent shall provide to the Company copies of all documents (including all fee letters and engagement letters but excluding provisions thereof related to fees, receiving Seller’s prior written consentpricing, market flex provisions, customary threshold amounts and any other provisions as reasonably required by the Lenders, which may be redacted so long as no redaction covers terms that would adversely affect the aggregate principal amount committed thereunder) relating to the Financing and shall keep the Company reasonably informed of material developments in respect of the financing process relating thereto.

Financing Matters. Buyer shall comply with its obligations under the Debt Commitment Letter and shall use its reasonable efforts to consummate the Debt Financing on the terms and conditions described in the Debt Commitment Letter, including using its reasonable efforts to (i) negotiate definitive agreements with respect to the Financing on the terms and conditions contained in the Debt Commitment Letter and (ii) satisfy all conditions to the Debt Financing to the extent the satisfaction of such conditions is within the control of Buyer. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, Buyer will seek in good faith to arrange to obtain such portion from alternative sources on terms and conditions that are equivalent or more favorable to Buyer as promptly as practicable. Subject to the satisfaction by Seller of its obligations pursuant to Section 5.02, the conditions set forth in Section 10.01 and 10.02 (other than Section 10.02(e)) and the conditions to funding set forth in the Debt Commitment Letter (other than conditions the nonsatisfaction of which is solely the result of the failure of the Equity Financing to be consummated), Buyer will draw down on the Bridge Loans, the Senior Bridge Loans and the Senior Subordinated Bridge Loans (in each case, as defined in the Debt Commitment Letter) if adequate funding has not been obtained through the issuance of the Subordinated Notes and the Notes (in each case, as defined in the Debt Commitment Letter) and the senior secured portion of the Debt Financing, in each case, as necessary to enable the Debt Financing to be funded on or prior to the later of (A) May 31, 2006 and (B) the earlier of (1) June 30, 2006 and (2) the 30th day after the first date on which both (x) Seller shall have provided Buyer with all financial information reasonably necessary to complete an offering memorandum for the Subordinated Notes and Notes financing (it being understood that such requirement shall not be satisfied if such information would go “stale” within such 30-day period) and (y) the conditions set forth in Section 10.01(a), 10.01(b), 10.01(c), 10.02(b) and 10.02(c) have been satisfied and the parties reasonably expect that the condition set forth in Section 10.01(e) will be satisfied within 30 days. Buyer will give Seller prompt notice of any material breach by any party of the Debt Commitment Letter or any termination of the Debt Commitment Letter. To the extent reasonably requested by Seller, Buyer will keep Seller informed on a current basis in reasonable detail of the status of its efforts to consummate the Financing. Buyer will not agree to any material amendment or modification to, or grant or seek any waiver under, the Debt Commitment Letter without first consulting with Seller and, if such amendment, modification or waiver would or would reasonably be expected to adversely affect or delay in any material respect Buyer’s 's ability to consummate the Debt Financing or the Closing, receiving Seller’s 's prior written consent.

Financing Matters. Buyer shall comply with its obligations If an Obligor becomes subject to any Insolvency Proceeding, and if the Senior Lender desires to consent (or not object) to the sale, use or lease of cash or other collateral under the Debt Commitment Letter and shall use its reasonable efforts Bankruptcy Code or otherwise to consummate provide financing to such Obligor under the Debt Financing on Bankruptcy Code or otherwise or to consent (or not object) to the terms and conditions described in provision of such financing to such Obligor by any third party (a “DIP Financing”), then the Debt Commitment Letter, including using its reasonable efforts to Junior Lender agrees that (i) negotiate definitive agreements with respect to the Financing on the terms and conditions contained in the Debt Commitment Letter and (ii) satisfy all conditions to the Debt Financing to the extent the satisfaction aggregate principal amount of loans outstanding under any such DIP Financing together with the aggregate outstanding principal amount of the pre-petition Senior Obligations does not exceed 110% of the aggregate outstanding principal amount of the Senior Obligations immediately prior to the commencement of the Insolvency Proceedings (the "DIP Cap"), such DIP Financing (and any Senior Obligations not in excess of the Maximum Senior Principal Amount which arose prior to the Insolvency Proceeding) may be secured by Liens on all or a part of the assets of such conditions is within Obligor which shall be superior in priority to the control of Buyer. If any portion of the Debt Financing becomes unavailable Liens on the terms and conditions contemplated in the Debt Commitment Letterassets of such Obligor held by any other Person, Buyer will seek in good faith to arrange to obtain such portion from alternative sources on terms and conditions that are equivalent or more favorable to Buyer as promptly as practicable. Subject (ii) notice received three (3) Business Days prior to the satisfaction by Seller entry of its obligations pursuant an interim order approving such DIP Financing and notice received fourteen (14) calendar days prior to Section 5.02entry of a Final Order approving such DIP Financing, shall be adequate notice, (iii) so long as the aggregate principal amount of such DIP Financing does not exceed the DIP Cap, the conditions Junior Lender will not request or accept adequate protection or any other relief in connection with such DIP Financing except as set forth in Section 10.01 and 10.02 4(d) below, (other than Section 10.02(e)iv) and to the conditions to funding set forth in extent the Debt Commitment Letter (other than conditions aggregate principal amount such DIP Financing does not exceed the nonsatisfaction of which is solely the result of the failure of the Equity Financing to be consummated), Buyer will draw down on the Bridge LoansDIP Cap, the Senior Bridge Loans Junior Lender will subordinate (and will be deemed hereunder to have subordinated) the Senior Subordinated Bridge Loans (in each case, as defined in Liens securing the Debt Commitment Letter) if adequate funding has not been obtained through the issuance of the Subordinated Notes and the Notes (in each case, as defined in the Debt Commitment Letter) and the senior secured portion of the Debt Financing, in each case, as necessary to enable the Debt Financing to be funded on or prior to the later of Junior Obligations (A) May 31to the Liens securing such DIP Financing (the "DIP Liens") on the same terms (but on a basis junior to the Liens of the Senior Lender) as the Liens of the Senior Lender are subordinated thereto (and such subordination will not alter in any manner the terms of this Agreement), 2006 and (B) to any "replacement Lien" granted to the earlier Senior Lender as adequate protection of its interests in the Collateral (1) June 30the "Senior Adequate Protection Lien"), 2006 provided that, to the extent the aggregate principal amount such DIP Financing is in excess of the DIP Cap, such excess amount shall be subordinated to the Junior Obligations and (2v) subject to Section 4(d) below, the 30th day after Junior Lender shall not contest or oppose in any manner any adequate protection provided to the first date on which both Senior Lender as adequate protection of its interests in the Collateral, or any DIP Financing, and shall be deemed to have waived any objections to such adequate protection, or DIP Financing, including, without limitation, any objection alleging such Obligor’s failure to provide "adequate protection" of the interests of the Junior Lender in the Collateral, provided, for purposes of the consents and limitations set forth in clauses (i) through (v) of this Section, that the DIP Financing does not by its express terms require such Obligor to (x) Seller shall have provided Buyer with all financial information reasonably necessary to complete an offering memorandum for the Subordinated Notes and Notes financing (it being understood that such requirement shall not be satisfied if such information would go “stale” within such 30-day period) and propose a specific plan of reorganization, or (y) sell substantially all of such Obligor’s assets, other than as a result of and after the conditions set forth in occurrence of an event of default under such DIP Financing. It is understood and agreed that the foregoing provisions of this Section 10.01(a4(b) shall not limit the right of the Junior Lender to object to any motion regarding DIP Financing but only (x) to the extent that the DIP Financing contravenes the requirements of this Section 4(b), 10.01(bor (y) such objection is based upon the Junior Lender’s rights under Section 4(j), 10.01(c), 10.02(b) and 10.02(c) have been satisfied and the parties reasonably expect that the condition set forth in Section 10.01(e) will be satisfied within 30 days. Buyer will give Seller prompt notice of any material breach by any party of the Debt Commitment Letter or any termination of the Debt Commitment Letter. To the extent reasonably requested by Seller, Buyer will keep Seller informed on a current basis in reasonable detail of the status of its efforts to consummate the Financing. Buyer will not agree to any material amendment or modification to, or grant or seek any waiver under, the Debt Commitment Letter without first consulting with Seller and, if such amendment, modification or waiver would or would reasonably be expected to adversely affect or delay in any material respect Buyer’s ability to consummate the Debt Financing or the Closing, receiving Seller’s prior written consent.