THE BANKRUPTCY COURT IN THE CASES, OR DISTRIBUTED BY OR ON
BEHALF OF ANY OF THE LOAN PARTIES TO THE COMMITTEE OR ANY OFFICIAL COMMITTEE
APPOINTED IN THE CASES AND, WITHIN FIVE DAYS AFTER THE SAME ARE FILED, PROVIDING
COPIES OF SAME TO THE INITIAL LENDERS AND COUNSEL FOR ADMINISTRATIVE AGENT;
PROVIDED THAT SUCH DOCUMENTS MAY BE MADE AVAILABLE (AND SHALL BE DEEMED MADE
AVAILABLE) BY POSTING ON A WEBSITE MAINTAINED BY THE BORROWER, AND IDENTIFIED TO
THE LENDERS, IN CONNECTION WITH THE CASES.
(O)
OTHER INFORMATION.
SUCH OTHER INFORMATION RESPECTING THE
BUSINESS, CONDITION (FINANCIAL OR OTHERWISE), OPERATIONS, PERFORMANCE,
PROPERTIES OR PROSPECTS OF ANY LOAN PARTY OR ANY OF ITS SUBSIDIARIES AS ANY
LENDER PARTY (THROUGH THE ADMINISTRATIVE AGENT) OR THE ADMINISTRATIVE AGENT MAY
FROM TIME TO TIME REASONABLY REQUEST.
(P)
BORROWING BASE CERTIFICATE.
A BORROWING BASE CERTIFICATE
SUBSTANTIALLY IN THE FORM OF EXHIBIT F AS OF THE DATE REQUIRED TO BE DELIVERED
OR SO REQUESTED, IN EACH CASE WITH SUPPORTING DOCUMENTATION, WHICH SHALL BE
FURNISHED TO THE INITIAL LENDERS:
(I) AS SOON AS AVAILABLE AND IN ANY EVENT
PRIOR TO THE INITIAL BORROWING TO BE MADE AFTER THE DATE OF ENTRY OF THE FINAL
ORDER, (II) AFTER SUCH INITIAL BORROWING, (A) ON OR BEFORE THE LAST BUSINESS DAY
OF EACH CALENDAR WEEK, WHICH WEEKLY BORROWING BASE CERTIFICATE SHALL REFLECT THE
ELIGIBLE RECEIVABLES UPDATED AS OF THE END OF THE BUSINESS DAY PRECEDING THE
DATE OF SUCH DELIVERY AND (B) ON OR BEFORE THE LAST BUSINESS DAY OF EACH
TWO-WEEK PERIOD, WHICH BIWEEKLY BORROWING BASE CERTIFICATE SHALL REFLECT THE
INVENTORY UPDATED AS OF THE END OF THE BUSINESS DAY PRECEDING THE DATE OF SUCH
DELIVERY, CERTIFIED BY A RESPONSIBLE OFFICER; PROVIDED THAT NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, THE BORROWER SHALL BE PERMITTED TO DELIVER AN
UPDATED BORROWING BASE CERTIFICATE ON ANY BUSINESS DAY, WHICH BORROWING BASE
CERTIFICATE SHALL REFLECT THE ELIGIBLE RECEIVABLES AND INVENTORY UPDATED AS OF
THE END OF THE PRECEDING BUSINESS DAY, CERTIFIED BY A RESPONSIBLE OFFICER, AND
(III) IF AT ANY TIME AFTER THE FINAL TERM ADVANCE DATE THE AVAILABILITY SHALL BE
LESS THAN $75,000,000, OR IF REASONABLY REQUESTED BY THE INITIAL LENDERS AT ANY
OTHER TIME WHEN THE INITIAL LENDERS REASONABLY BELIEVE THAT THE THEN EXISTING
BORROWING BASE CERTIFICATE IS MATERIALLY INACCURATE, AS SOON AS REASONABLY
AVAILABLE AFTER SUCH TIME OR SUCH REQUEST, IN EACH CASE WITH SUPPORTING
DOCUMENTATION AS THE INITIAL LENDERS MAY REASONABLY REQUEST.
88
Section 5.04
Financial Covenants.
So long as any Advance shall remain unpaid,
any Letter of Credit shall be outstanding and not Cash Collateralized or any
Lender Party shall have any Commitment hereunder, the Borrower will:
(A)
MINIMUM EBITDA.
MAINTAIN CONSOLIDATED EBITDA OF THE BORROWER AND
ITS SUBSIDIARIES FOR THE PERIOD SET FORTH BELOW AS AT THE LAST DAY OF EACH
CALENDAR MONTH NOT LESS THAN THE AMOUNT SET FORTH BELOW FOR SUCH PERIOD, AS
DETERMINED FOR SUCH PERIOD THEN ENDED:
Month
Period then Ended
EBITDA
March 2009
1 month
$
-15,000,000
April 2009
2 months
$
-8,000,000