Sample DIP Financing Agreement

This final order authorizing the debtors to obtain postpetition secured financing was entered at the beginning of the Boston Chicken, Inc., Chapter 11 in 1998. This order is representative of DIP financing orders entered in larger cases, and incorporates a fairly standard form of loan agreement and security agreement (which is voluminous and not included here), and includes a Carve out arrangement for the estate's professionals. The DIP facility was essentially a continuation of a prebankruptcy loan facility by prebankruptcy lenders, converted into a postpetition working-capital facility. Because the Boston Market restaurant chain's working-capital needs were so large, the DIP financing was provided by a group of participating lenders, with GE Capital Corporation and Bank of America serving as Administrative Agent and Collateral Agent, respectively, for the entire group of lenders. The case did not turn out well for anyone—McDonald's agreed to purchase most of the assets of the Boston Market chain, but for a price that afforded only cents on the dollar to senior secured debt and left junior secured debt, as well as all unsecured debt, completely out of the money.

Executive Guide to Corporate Bankruptcy

IN THE united states bankruptcy court

FOR THE district of arizona

The Motion for Authority to Obtain Credit and Incur Debt Secured by Senior Liens (the "Motion") filed by the above-referenced debtors and debtors in possession (each a "Debtor," and collectively "Debtors") in the above-captioned respective bankruptcy cases (each a "Chapter 11 Case," and collectively the "Chapter 11 Cases"), duly came on (1) for preliminary hearing (the "Interim Hearing") before the undersigned United States Bankruptcy Judge on October 5, 1998 and (2) for final hearing (the "Final Hearing") before the undersigned United States Bankruptcy Judge on October 26, 1998. At each such hearing, appearances were made as noted in the record of such hearing.

Pursuant to the Motion and subject in all respects to the terms and conditions hereof, Debtors sought authority: (1) to obtain secured postpetition financing from General Electric Capital Corporation ("GE Capital"), Bank of America National Trust and Savings Association ("BofA"), and certain other lenders (collectively with GE Capital and BofA, "Lenders") in an aggregate principal amount not to exceed $70,000,000 pursuant to (A) that certain Debtor in Possession Credit Agreement dated as of October 5, 1998

Sample DIP Financing Agreement

(the "Credit Agreement"),¹ by and between each Debtor, GE Capital, as administrative agent (in such capacity, "Administrative Agent") and as a lender, BofA, as collateral agent (in such capacity, "Collateral Agent," Administrative Agent and Collateral Agent being referred to collectively as "Agents") and as a lender, and the other Lenders signatory thereto from time to time, in substantially the form annexed to the Motion, and (B) the other Loan Documents; (2) to grant to Collateral Agent, for the benefit of Agents and Lenders, pursuant to Sections 364(c)(2), (c)(3) and (d) of the Bankruptcy Code,² as security for the payment and performance of the Obligations, Liens upon all of the Collateral, including all of Debtors' Accounts, books and records, Chattel Paper, Contracts, Documents, Equipment, Fixtures, General Intangibles, Goods, Instruments, Inventory, Investment Property, Real Estate, money, cash and cash equivalents, whether now existing or hereafter arising, wherever located, and all Proceeds of the foregoing; (3) to grant administrative priority to the Obligations pursuant to Section 364(c)(1); and (4) to modify the automatic stay in certain respects in connection with such postpetition financing.

Having reviewed and considered the Motion, all papers filed in connection with the Motion, and the record made by the Debtors at the Interim Hearing, and appropriate notice of the Motion and the Interim Hearing under the circumstances having been given pursuant to Rule 4001(c) , this Court entered its Interim and Proposed Final Order Approving Postpetition Financing and Granting Liens and Super Administrative Priority Pursuant to 11 U.S.C. §§ 364(c) and (d) and Modifying the Automatic Stay (the "Interim Order") and scheduled the Final Hearing to consider entering the Interim Order as a final order (as set forth herein, this "Final Order").

Having reviewed and considered the Motion again, all papers (including objections, if any) filed in connection with the Motion, and the record made by the Debtors at the Interim Hearing and the Final Hearing, and appropriate notice of the Final Hearing having been given pursuant to Rule 4001(c), based upon the foregoing and other good cause appearing therefor,

THE COURT HEREBY FINDS AND CONCLUDES AS FOLLOWS:

A. On October 5, 1998 (the "Petition Date"), each Debtor commenced

its Chapter 11 Case by filing a voluntary petition for relief under Chapter

¹Unless otherwise defined herein, capitalized terms or matters of construction defined or established in the Credit Agreement shall be applied herein as defined or established therein; capitalized terms that are not defined herein or in the Credit Agreement shall be as defined in the Security Agreement (as defined in the Credit Agreement).

²Unless otherwise provided herein, all references herein to (1) "Sections" shall refer to sections of the Bankruptcy Code and (2) "Rules" shall refer to rules of the Bankruptcy Rules.

Executive Guide to Corporate Bankruptcy

11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Arizona. Pursuant to Sections 1107 and 1108, each Debtor continues to operate its business and manage its properties as a debtor and debtor in possession.

B. Consideration of the Motion by this Court constitutes a core proceeding within the meaning of 28 U.S.C. § 157(b)(2). Accordingly, this Court has jurisdiction over these proceedings and the parties and property affected hereby pursuant to Section 364 and 28 U.S.C. § 157(b)(1).

C. Debtors represent that, prior to the Petition Date:

(1) Pursuant to the Master Lease Agreement dated as of September 27, 1995 (the "1995 Master Lease"), Citizens Bank of Rhode Island, as successor in interest to GE Capital, for itself and as agent for certain participants (in both such capacities, "1995 Lessor"), made loans, in the form of a lease, to Debtor Boston Chicken, Inc. ("BCI") that were used by BCI to purchase certain equipment referred to as the "Lease Assets" in the 1995 Master Lease. BCI retained certain of such Lease Assets for its own use, and subleased the balance thereof to, among others, certain of its subsidiaries who are also Debtors and assigned such subleases to 1995 Lessor (such Lease Assets, together with all underlying subleases and the related obligations of the sublessees thereunder, are referred to herein as the "1995 Master Lease Collateral"). As of the Petition Date, BCI was indebted to 1995 Lessor under the 1995 Master Lease for obligations totaling not less than $55 million, plus accrued interest, fees and costs, including professional fees and costs (collectively, the "1995 Lease Obligations"). As security for the 1995 Lease Obligations, BCI granted to 1995 Lessor a security interest in all of the 1995 Master Lease Collateral.

(2) (a) On December 9, 1996:

(i) BCI and GE Capital, for itself and as agent for certain participants (in both such capacities, "1996 Lessor"), entered into that certain Master Lease Agreement No. 2 dated as of December 9, 1996 (such agreement, as amended by Amendment No. 1 to Master Lease Agreement No. 2 dated as of February 28, 1997, Amendment No. 2 to Master Lease Agreement dated as of March 18, 1997, and Amendment No. 2 [sic] to Master Lease Agreement No. 2 dated as of July 15, 1998 (including all schedules thereto), the "1996 Master Lease"), pursuant to which 1996 Lessor made loans, in the form of a lease, to BCI that were used by BCI to purchase certain equipment and real property, which equipment and real property are referred to as the "Lease As

Sample DIP Financing Agreement

sets" in the 1996 Master Lease. BCI retained certain of such Lease Assets for its own use, and subleased the balance thereof to, among others, certain of its subsidiaries who are also Debtors and assigned such subleases to 1996 Lessor (such Lease Assets, together with all underlying subleases and the related obligations of the sublessees thereunder, are referred to herein as the "1996 Master Lease Collateral"). As of the Petition Date, BCI was indebted to 1996 Lessor under the 1996 Master Lease for obligations totaling not less than $166 million, plus accrued interest, fees and costs, including professional fees and costs (collectively, the "1996 Lease Obligations"); and

(ii) BCI, BofA, as loan agent (in such capacity, "Prepetition Revolver Agent") and as a lender, and certain other lenders (collectively with BofA, "Prepetition Revolver Lenders"), entered into that certain Secured Revolving Credit Agreement dated as of December 9, 1996 (such agreement, as amended by the First Amendment and Consent to Secured Revolving Credit Agreement dated as of October 24, 1997 and the Second Amendment and Consent to Secured Revolving Credit Agreement (the "Second Revolver Amendment") dated as of July 15, 1998 (collectively, the "Prepetition Revolving Loan Agreement"), pursuant to which the Prepetition Revolver Lenders have made revolving credit loans to, and incurred letter of credit obligations for the benefit of, BCI. As of the Petition Date, BCI was indebted to Prepetition Revolver Agent and Prepetition Revolver Lenders for obligations totaling not less than $92 million, plus accrued interest, fees and costs, including professional fees and costs (collectively, the "Prepetition Revolver Obligations").

(b) As security for the 1996 Lease Obligations and the Prepetition Revolver Obligations (collectively, the "1996 Obligations"), BCI granted to (i) 1996 Lessor a security interest in the 1996 Master Lease Collateral and (ii) to BofA, as common collateral agent (in such capacity, "Common Collateral Agent"), a security interest in substantially all of its assets other than the 1995 Master Lease Collateral. In addition, certain of BCI's subsidiaries who are also Debtors guaranteed the payment and performance of the 1996 Obligations and pledged substantially all of their assets (excluding any 1995 Master Lease Collateral) as security therefor. All of the collateral described in the preceding two sentences shall be referred to collectively as the "Common 1996 Collateral." The 1996 Lease Obligations and the

Executive Guide to Corporate Bankruptcy

Prepetition Revolver Obligations are pari passu with each other.

(3) Pursuant to the Second Revolver Amendment, BofA and GE Capital, as co-agents (collectively, in such capacities, "Prepetition Liquidity Agent") and as lenders, and certain other lenders (collectively with BofA and GE Capital, "Prepetition Liquidity Lenders") made the "Liquidity Loans" as defined therein to BCI during the period from and after July 15, 1998 until the Petition Date. As of the Petition Date, BCI was indebted to Prepetition Liquidity Agent and Prepetition Liquidity Lenders with respect to such Liquidity Loans for obligations totaling not less than $35 million, plus accrued interest, fees and costs, including professional fees and costs (collectively, the "Prepetition Liquidity Obligations"). The Prepetition Liquidity Obligations are guaranteed by the guaranties described in clause (2)(b) of this paragraph (C), and are secured by the Common 1996 Collateral. The 1996 Lessor (and all of the participants in the 1996 Master Lease), the Prepetition Revolver Agent and the Prepetition Revolver Lenders agreed to subordinate their right to payment with respect to the 1996 Lease Obligations and the Prepetition Revolver Obligations, respectively, to the prior payment in full of the Prepetition Liquidity Obligations.

(4) pursuant to certain agreements and arrangements more fully described in Exhibit A to the Second Amended and Restated Intercreditor Agreement dated as of July 15, 1998, with respect to BCI and certain of its subsidiaries who are also Debtors (the "Intercreditor Agreement"), certain institutions (collectively the "Cash Management Banks") agreed to provide continuing cash management services critical to the continuing operations of BCI and such subsidiaries. In addition, BCI is obligated with respect to certain "Other Obligations" owing to the "Other Creditors" (as both such terms are defined in the Intercreditor Agreement). Certain of BCI's subsidiaries who are also Debtors have guaranteed the payment and performance of the foregoing obligations owing to such Cash Management Banks and Other Creditors. All of such obligations are secured by a junior security interest in favor of the Common Collateral Agent, for the benefit of such Cash Management Banks and Other Creditors, in substantially all of the Common 1996 Collateral.

D. Pursuant to Rule 4001(c) and in accordance with the Interim Order, the Debtors have provided notice of the time, place, and nature of the Final Hearing on the Motion and opportunity to object to the entry of this Final Order to counsel to the Prepetition Revolver Lenders, counsel for the Offi

Sample DIP Financing Agreement

cial Committee of Unsecured Creditors (the "Official Committee"), the United States Trustee for the District of Arizona, (4) the participants under the 1995 Master Lease, (5) all other persons entitled to notice in accordance with paragraph 18 of the Interim Order and (6) any other parties entitled to notice under Bankruptcy Rule 4001(b). The foregoing notice is adequate and sufficient.

E. Debtors have requested that Lenders extend, and Lenders have agreed on the terms set forth in the Loan Documents to extend, certain financial accommodations to Debtors on a postpetition, secured, superpriority basis. Debtors, Agents and Lenders have conducted good faith negotiations for the extension of such financial accommodations, such negotiations were at arms length, and the proposed terms and conditions of such financial accommodations are fair and reasonable.

F. Debtors have represented that they have discussed with other potential lenders the possibility of extending postpetition credit to Debtors. Debtors are unable to obtain postpetition financing in the form of unsecured credit allowable as an administrative expense under Section 503(b)(1) , unsecured credit allowable under Sections 364(a) or 364(b) , or secured credit pursuant to Section 364(c) or (d) on terms and conditions more favorable to their respective estates than those offered by Agents and Lenders, as evidenced by this Final Order and the other Loan Documents.

G. Lenders have represented that they are not willing to extend postpetition financial accommodations unless each Debtor grants to Collateral Agent, for the benefit of Agents and Lenders, perfected Liens upon all of the Collateral with the priorities set forth herein.

H. The financial accommodations contemplated in the Interim Order and by the Credit Agreement and the other Loan Documents were necessary on an interim basis to avoid immediate and irreparable harm to each Debtor, its estate, and its creditors. The financing approved by the Interim Order on an interim basis was limited to an amount necessary to avoid immediate and irreparable harm pending the Final Hearing.

I. The Debtors have represented that, without continuing adequate financing, each Debtor will be unable to maintain its operations, preserve and maximize the value of its estate, and reorganize its business. Permitting each Debtor to obtain financial accommodations from Agents and Lenders will minimize disruption of such Debtor's business as a going concern, enable such Debtor to preserve and maintain its assets, and increase the possibility of a successful reorganization of such Debtor's business. Accordingly, good cause exists for approval of the Motion and entry of this Final Order, which is in the best interest of each Debtor, its creditors, and its estate. The terms of the postpetition financing and granting of Liens and super administrative expense priority authorized hereby are fair and equitable under the circumstances.

Executive Guide to Corporate Bankruptcy

J. Based upon the record presented to the Court by the Debtors at the Interim Hearing and the Final Hearing, it appears that the terms and conditions to which Debtors, Agents and Lenders have agreed pursuant to the Loan Documents constitute a part of this Court's authorization under Section 364 and are, therefore, subject to the protections contained in Section 364(e).

IN ACCORDANCE WITH THE FOREGOING, IT IS HEREBY

ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

1. The Motion was granted on an interim basis as set forth in the Interim Order. Subject to the terms hereof, this Final Order is valid immediately, is fully effective upon its entry, and replaces and supersedes the Interim Order in all respects.

2. Each Debtor is authorized and directed to enter into and perform under and in accordance with the terms and conditions of the Loan Documents and to execute and deliver to Agents such additional documents, instruments, and agreements as may be required by Agents to implement the terms, or effectuate the purposes, of this Final Order or any other Loan Document. The terms and conditions of the Loan Documents are hereby approved; provided, that the "Budget" attached to the Credit Agreement as Schedule 3.4(b) thereto shall be replaced and superseded by the Budget that was entered into evidence during the Final Hearing. The failure to reference or discuss any particular provision of any Loan Document in this Final Order shall not affect the validity or enforceability of any such provision. However, notwithstanding the foregoing or anything in the Loan Documents to the contrary, to the extent there is a conflict between the terms and provisions of this Final Order (without regard to any amendments or modifications hereof) and the terms and provisions of any of the Loan Documents, the terms and provisions of this Final Order shall control in all respects and the underlying Loan Documents shall be deemed to be, and hereby are, amended to reflect the foregoing.
3. BCI, on behalf of itself or any Debtor, is authorized to request and receive Revolving Credit Advances from Lenders and to request that Lenders incur L/C Obligations for the benefit of the relevant Debtor on the terms and conditions set forth in the Loan Documents in an aggregate outstanding principal amount not to exceed $70,000,000 on a final basis, which amount is inclusive of, and not in addition to, the $41,900,000 in financial accommodations authorized in the Interim Order. Each Debtor is authorized and directed to use proceeds of the Revolving Credit Advances for the purposes set forth in the Credit Agreement, including, without limitation, the satisfaction in full of the Prepetition Liquidity Obligations from the proceeds of the initial advance under the Credit Agreement.

4. Each Debtor has stipulated and is hereby deemed: (a) to release and discharge Prepetition Liquidity Agent and Prepetition Liquidity Lenders,

Sample DIP Financing Agreement

in their respective capacities as such, together with their respective agents, attorneys, employees, heirs, executors, administrators, officers, directors, successors and assigns, from any and all claims, causes of action and remedies (whether under the Bankruptcy Code or other applicable law) arising out of, based upon or related to the Prepetition Liquidity Obligations or the Common 1996 Collateral securing such obligations; and (b) to waive any and all defenses (including, without limitation, offsets and counterclaims of any nature or kind) as to the validity, perfection, priority, enforceability, and nonavoidability (under the Bankruptcy Code or otherwise) of the Prepetition Liquidity Obligations and the security interests in and liens upon the Common 1996 Collateral securing such obligations. The releases and waivers set forth in this paragraph are deemed effective upon the date of entry of the Interim Order, but are binding only on the Debtors and their respective estates and not on any other party in interest, with all rights, claims, causes of action, remedies, challenges, objections, defenses and other matters referred to above that the Debtors' estates have, or may (but for the provisions this decretal paragraph 4) have, being expressly reserved to and preserved for the benefit of such parties in interest.

5. Each Debtor is authorized to grant to Collateral Agent, for the benefit of Agents and Lenders, and Collateral Agent is hereby granted, pursuant to Sections 364(c)(2), (c)(3) and (d), valid, perfected, and enforceable Liens upon the Collateral (including the 1995 Master Lease Collateral and the Common 1996 Collateral) subject only to (a) Permitted Senior Encumbrances that would be prior to such Liens as a matter of law, (b) 1995 Lessor's interest in the 1995 Master Lease Collateral, and (c) the Carve-Out (as defined below). Subject to the Carve-Out, such Liens shall at all times be senior to the rights of any successor trustee or estate representative in any Chapter 11 Case or any subsequent case commenced upon the conversion of any Chapter 11 Case to a case under Chapter 7 of the Bankruptcy Code.

6. Each of 1996 Lessor, each participant in the 1996 Master Lease, Prepetition Revolver Agent, each Prepetition Revolver Lender, each Cash Management Bank, and each Other Creditor has consented to the grant to Collateral Agent, for the benefit of Agents and Lenders, pursuant to Section 364(d), of a valid, perfected, and enforceable first priority Lien upon the Common 1996 Collateral pursuant to (i) an acknowledgment of the Request for Participants' Consent dated as of September 23, 1998 and/or (ii) the Consent to Modification of Second Amended and Restated Intercreditor Agreement dated as of September 24, 1998.

7. The Obligations shall have administrative priority under Section 364(c)(1). Subject to the Carve-Out, such administrative expenses shall have priority over all other costs and expenses of the kinds specified in, or ordered pursuant to, Sections 326, 330, 331, 503(b), 507(a) or 507(b), and shall at all times be senior to the rights of each Debtor, its estate, and any successor trustee or estate representative in its Chapter 11 Case.

Executive Guide to Corporate Bankruptcy

8. Nothing contained in this Final Order or otherwise, and no action or inaction of the Collateral Agent, the Agents or the Lenders, shall be deemed to be a consent by any of them to any charge, lien, assessment or claim against the Collateral under section 506(c) of the Code or otherwise. The Debtors and the Official Committee, on their own behalf but not on behalf of any other party-in-interest, hereby waive any rights they may have to seek to impose any charge, lien, assessment or claim against the Collateral under section 506(c) of the Code or otherwise. Except as set forth in paragraph 9 hereof with respect to the Carve-Out, no costs or expenses of administration that have been or may be incurred in these proceedings are or will be prior to or on a parity with the claims of the Collateral Agent, the Agents or the Lenders against the Debtors or any successor debtor-in-possession or Chapter 11 trustee or with the security interests, liens, and mortgages of the Collateral Agent, the Agents or the Lenders upon the Collateral.

9. Collateral Agent's Liens upon the Collateral and the super administrative priority granted to Agents and Lenders under Section 364(c)(1) shall be subject only to unpaid professional fees and expenses incurred by Debtors, the Official Committee, and any other statutory committee appointed by the U.S. Trustee in the Chapter 11 Cases (any such committee, an "Other Committee"), but only if such Other Committee's fees are, pursuant to an order of the Bankruptcy Court, required to be paid by the Debtors (which expenses described in this clause (a) shall include the allowed out-of-pocket expenses of Official Committee and (if applicable) Other Committee members) as and when allowed on a final basis pursuant to Section 330, and fees payable to the United States Trustee and to the Clerk of the Bankruptcy Court pursuant to 28 U.S.C. § 1930 in the Chapter 11 Cases, in an aggregate amount under the foregoing clauses (a) and (b) not to exceed $3,500,000 (such fees and expenses referred to in clauses (a) and (b) of this paragraph 9 being collectively referred to as the "Carve-Out"); provided, that the Carve-Out (i) shall only apply after the termination of the Revolving Loan facility under Section 8.2(i) of the Credit Agreement (the "Facility Termination Date"), (ii) shall only include unpaid professional fees and expenses accrued as of the Facility Termination Date and professional fees and expenses incurred after the Facility Termination Date, and shall neither include nor be reduced by any professional fees and expenses that were allowed by this Court under any interim compensation orders pursuant to Sections 330 or 331 and paid by the Debtors prior to the Facility Termination Date, (iii) shall not be paid from amounts on deposit in the Cash Collateral Account, (iv) shall not include any professional fees or expenses arising after the conversion of any Chapter 11 Case to a case under Chapter 7 of the Bankruptcy Code, (v) shall not apply to the extent there is equity in encumbered assets or there are unencumbered assets of any Debtor's estate that may be used to satisfy the fees and expenses included in the Carve-Out, and (vi) shall be payable only after the Facility

Sample DIP Financing Agreement

Termination Date.

10. The Liens granted to Collateral Agent pursuant to this Order and the other Loan Documents shall be perfected by operation of law upon execution of this Order by this Court. Neither any Agent nor any Lender shall be required to file or record any financing statements, mortgages or other documents in any jurisdiction, to give any notices to, to receive acknowledgments or consents from any Person, or to take any other action to validate or perfect the Liens granted hereunder. This Order shall be deemed sufficient and conclusive evidence of the validity and perfection of the Liens granted hereunder. If Collateral Agent shall, in its sole discretion or upon the request of Administrative Agent, choose to file financing statements or record mortgages or other documents, or otherwise confirm perfection of such Liens, Collateral Agent is hereby authorized to effect such filings and recordations (and all such financing statements, mortgages, and similar documents shall be deemed to have been filed, recorded or made on the date of entry of the Interim Order); provided, that if the Debtors have filed or recorded a copy of this Final Order and/or evidence of the pendency of the Chapter 11 Cases in all applicable jurisdictions, the aggregate amount of fees and expenses (including without limitation professional fees and recording costs) that may be charged to the Debtors (either directly or as part of the fees and expenses otherwise contractually payable by the Debtors) in connection with filings and recordings by the Collateral Agent shall not exceed $10,000.

11. Reasonable fees and expenses due to Agents and Lenders under and in connection with the Loan Documents shall be charged and promptly paid as required by the Credit Agreement and the other Loan Documents. The Agents consent to, and this Court hereby directs, the provision of copies of all invoices relating to such fees and expenses (which invoices shall be in sufficient detail to enable the parties to review the tasks performed, the individuals performing such tasks, and the hourly rates being charged with respect to each such individual), by the Debtors as and when received to counsel for the Official Committee, counsel for any Other Committee, and the United States Trustee. Nothing in this Final Order or in the Loan Documents shall be construed as waiving or limiting the rights of the Debtors, the Official Committee, any Other Committee, the United States Trustee or any other party-in-interest to seek judicial review of the reasonableness of the fees and expenses being charged.

12. Except as specifically permitted under the Loan Documents, the Adequate Protection Order applicable to the 1996 Obligations, or consented to by each Agent in writing, as long as any Obligations remain outstanding under the Loan Documents, the occurrence of either of the following events shall constitute an Event of Default entitling the Agents to take action as described in decretal paragraph 13 of this Final Order: (a) this Court granting or imposing, under Section 364 or otherwise, (i) super administrative

Executive Guide to Corporate Bankruptcy

priority status senior or equal to that granted to Agents and Lenders hereunder or (ii) postpetition Liens upon any of the Collateral, or (b) this Court permitting any Debtor to use Agents' and Lenders' Cash Collateral.

13. The automatic stay of Section 362 is hereby modified to the extent necessary to permit Agents and Lenders to perform in accordance with, and exercise their respective rights and remedies pursuant to, this Final Order and the other Loan Documents. Upon the occurrence of and during the continuation of an Event of Default, and without application or motion to, or further order from, this Court or any other court, Agents and Lenders are hereby authorized, inter alia, (a) to cease making Revolving Credit Advances, incurring L/C Obligations, or otherwise extending any other financial accommodations under the Loan Documents, (b) to declare all principal of, and accrued interest on, the Obligations to be immediately due and payable and require that the L/C Obligations be cash collateralized, (c) to revoke each Debtor's right to use Cash Collateral in which Agents and Lenders have an interest, and (d) upon five Business Days' prior written notice to (i) BCI, (ii) the United States Trustee, and (iii) counsel for the Official Committee and counsel for any Other Committee, exercise any and all other rights and remedies provided for under this Final Order, any Loan Document, or applicable law, including the right to sell or otherwise dispose of all or any part of the Collateral in a commercially reasonable manner.

14. Upon entry of this Final Order, the Debtors shall not have any right to contest the enforcement of the remedies set forth in the Credit Agreement on any basis other than the fact that an Event of Default has not occurred, and, except with respect to an objection to the existence of an Event of Default, the Debtors shall not have the right to seek injunctive relief against such enforcement under Section 105 or otherwise, or to seek injunctive relief in conflict with the provisions of this Final Order or any other Loan Document. The foregoing restrictions on the Debtors' rights shall not in any way be construed or deemed to constitute a restriction as to any such rights that the Official Committee, any Other Committee, and any other party-in-interest may have.

15. If any provisions of this Final Order or any Loan Document are hereafter modified, vacated, reversed, limited or stayed by subsequent order of this Court, an appellate court, or any other court, such modification, vacation, reversal, limitation or stay shall not affect the validity or priority of any Obligations incurred prior thereto, or the validity, enforceability or priority of any Lien. Notwithstanding any such modification, vacation, reversal, limitation or stay, any Obligation of any Debtor pursuant to this Final Order or under any Loan Document arising prior thereto shall be governed in all respects by the original provisions of this Final Order and the Loan Documents, and Agents and Lenders shall be entitled to all of the rights, privileges, and benefits granted hereunder and thereunder with re

Sample DIP Financing Agreement

spect to all such Obligations.

16. No order dismissing any Chapter 11 Case under Section 1112 or providing for the sale of any Debtor or substantially all of such Debtor's assets under Section 363 or otherwise shall be entered unless the Obligations have first been paid in full in cash, or would be paid in full in cash upon the consummation of any such sale.

17. This Order shall not be construed in any way as a waiver or relinquishment of any rights that any Agent or Lender may have (i) to be heard on any matter brought before this Court or (ii) to bring any matter before this Court, including seeking the appointment of a trustee, examiner, or other representative for any Debtor's estate under Section 1104, converting any Chapter 11 Case to a case under Chapter 7 pursuant to Section 1112, or opposing extension of the exclusivity periods of Section 1121. The rights and remedies of Agents and Lenders specified herein are cumulative and not exclusive of any rights or remedies that they may have under this Final Order, any other Loan Documents, or otherwise.

18. The Agents consent to the provision by the Debtors, and this Court hereby directs the Debtors to provide, to counsel for the Official Committee and counsel for any Other Committee copies of all financial reports and notices delivered as required in, or in connection with, the Loan Documents.

19. Nothing contained in this Final Order or in the Loan Documents shall constitute a finding or determination by the Court concerning the amount, validity, perfection, priority, enforceability or non-avoidability of the obligations incurred or the liens and security interests granted by one or more of the Debtors to any of the 1996 Lessor, the 1995 Lessor, the Prepetition Revolver Agent, the Prepetition Revolver Lenders, the Common Collateral Agent or the Prepetition Liquidity Agent prior to the Petition Date.

20. This Final Order and, subject to the final sentence of decretal paragraph 2 hereof, each other Loan Document shall be binding upon each Debtor and its respective estate, each Agent, each Lender, and their respective successors and assigns, including any trustee or other estate representative hereafter appointed or elected for the estate of any Debtor in its Chapter 11 Case or any subsequent Chapter 7 case. This Final Order and each other Loan Document shall inure to the benefit of each Debtor, each Agent, each Lender, and their respective successors and assigns, but not to any trustee or other estate representative hereafter appointed for the estate of any Debtor in proceedings under Chapter 7 or Chapter 11 of the Bankruptcy Code. Except as otherwise explicitly set forth in this Final Order, no third parties are intended to be or shall be deemed to be third party beneficiaries of the provisions of this Final Order or any other Loan Document.

Executive Guide to Corporate Bankruptcy

21. Except to such matters as are expressly waived or limited herein, nothing in this Final Order shall be deemed to confer standing on, or deny standing to, any party-in-interest in the Chapter 11 Cases.

Dated: October 29, 1998

By: /s/ Charles G. Case II Hon. Charles G. Case II

UNITED STATES BANKRUPTCY JUDGE