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
December 2009
10
months
$
150,000,000
January 2010
11
months
$
171,000,000
February 2010
12
months
$
193,000,000
March 2010
12
months
$
200,000,000
April 2010
12
months
$
205,000,000
May 2010
12
months
$
212,000,000
80
June 2010
12
months
$
218,000,000
July 2010
12
months
$
222,000,000
August 2010
12
months
$
224,000,000
September 2010
12
months
$
229,000,000
October 2010
12
months
$
230,000,000
November 2010
12
months
$
232,000,000
December 2010
12
months
$
240,000,000
January 2011
12
months
$
242,000,000
February 2011
12
months
$
245,000,000
(B)
MINIMUM AVAILABILITY.
NOT PERMIT AVAILABILITY TO BE LESS THAN
$20,000,000 ON ANY DAY.
(C)
COMPLIANCE WITH BUDGET.
NOT PERMIT VARIANCE FROM THE DIP BUDGET
OF ACTUAL CASH FLOW (EXCLUDING FROM THE CALCULATION THEREOF PAYMENTS FOR
PROFESSIONAL FEES NOT ATTRIBUTABLE TO ANY LITIGATION) OF THE BORROWER AND THE
OTHER LOAN PARTIES TO EXCEED, FOR ANY TESTING PERIOD FOR ANY CALENDAR WEEK
(COMMENCING WITH MARCH 1, 2010), 20% OF THE AMOUNT SET FORTH IN THE DIP BUDGET
FOR SUCH NON-EXCLUDED CASH FLOWS FOR SUCH TESTING PERIOD PLUS THE AMOUNT, IF
ANY, OF THE CASH VARIANCE. FOR THE AVOIDANCE OF DOUBT, THE PARTIES HERETO
ACKNOWLEDGE AND CONFIRM THAT THE COVENANT IN THIS SECTION 5.04(C) MEASURES, AT
THE END OF EACH APPLICABLE WEEK, CUMULATIVE VARIANCE FOR THE PERIOD FROM THE
FIRST DAY OF THE FIRST CALENDAR WEEK OF THE DIP BUDGET AND ENDING WITH THE LAST
DAY OF SUCH APPLICABLE WEEK.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01
Events of Default.
If any of the following events ("Events of
Default") shall occur and be continuing:
(A)
THE BORROWER SHALL FAIL TO PAY ANY PRINCIPAL OF ANY ADVANCE OR ANY
UNREIMBURSED DRAWING WITH RESPECT TO ANY LETTER OF CREDIT WHEN THE SAME SHALL
BECOME DUE AND PAYABLE OR ANY LOAN PARTY SHALL FAIL TO MAKE ANY PAYMENT OF
INTEREST ON ANY ADVANCE OR ANY OTHER PAYMENT UNDER ANY LOAN DOCUMENT WITHIN TWO
BUSINESS DAYS AFTER THE SAME BECOMES DUE AND PAYABLE; OR
(B)
ANY REPRESENTATION OR WARRANTY MADE BY ANY LOAN PARTY (OR ANY OF
ITS OFFICERS) UNDER OR IN CONNECTION WITH ANY LOAN DOCUMENT SHALL PROVE TO HAVE
BEEN INCORRECT IN ANY MATERIAL RESPECT WHEN MADE OR DEEMED MADE; OR
(C)
ANY LOAN PARTY SHALL FAIL TO PERFORM OR OBSERVE (I) ANY TERM,
COVENANT OR AGREEMENT CONTAINED IN SECTION 2.14, 5.01(A) (WITH RESPECT TO THE
LOAN PARTIES), 5.01(C), 5.01(F),
81
5.02, 5.03 (OTHER THAN SUBSECTIONS (E), (F), (L) AND (N) OF SECTION 5.03) OR
5.04 OR THE PROVISO TO SECTION 3.01(E)(VI), (II) ANY TERM, COVENANT OR AGREEMENT
CONTAINED IN SECTION 5.03(E) OR (F), IF SUCH FAILURE SHALL REMAIN UNREMEDIED FOR
ONE BUSINESS DAY, OR (III) ANY TERM, COVENANT OR AGREEMENT (OTHER THAN