OR THE ISSUANCE OF ANY LETTER OF
CREDIT, EXCESS AVAILABILITY SHALL BE NOT LESS THAN ZERO.
(E) IF A LIQUIDITY EVENT AS TO WHICH THE AGENT HAS NOTIFIED THE BORROWER THEREOF
IS IN EFFECT AT THE TIME OF, OR WOULD EXIST AFTER GIVING EFFECT TO, SUCH
REQUESTED EXTENSION OF CREDIT, THE BORROWER'S PRO FORMA FIXED CHARGE COVERAGE
RATIO, AFTER GIVING EFFECT TO SUCH EXTENSION OF CREDIT, WOULD BE NOT LESS THAN
1.1 TO 1.0 (THE "LIQUIDITY EVENT CONDITION").
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (b), (c),
(d) and (if applicable) (e) of this Section.
SECTION 4.03. HOLDINGS' RIGHT TO CURE.
(A)
NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN SECTION 4.02(E), IN THE EVENT THAT THE BORROWER FAILS TO
SATISFY THE LIQUIDITY EVENT CONDITION, HOLDINGS SHALL HAVE THE RIGHT TO ISSUE
PERMITTED CURE SECURITIES FOR CASH OR OTHERWISE RECEIVE CASH CONTRIBUTIONS TO
THE CAPITAL OF HOLDINGS, AND, IN EACH CASE, TO CONTRIBUTE ANY SUCH CASH TO THE
CAPITAL OF THE BORROWER (COLLECTIVELY, THE "CURE RIGHT"), AND UPON THE RECEIPT
BY THE BORROWER OF SUCH CASH (THE "CURE AMOUNT") PURSUANT TO THE EXERCISE BY
HOLDINGS OF SUCH CURE RIGHT THE LIQUIDITY EVENT CONDITION SHALL BE RECALCULATED
GIVING EFFECT TO THE FOLLOWING PRO FORMA ADJUSTMENTS:
(I) EBITDA SHALL BE INCREASED, SOLELY FOR THE PURPOSE OF DETERMINING WHETHER THE
LIQUIDITY EVENT CONDITION SHALL HAVE BEEN SATISFIED AND NOT FOR ANY OTHER
PURPOSE UNDER THIS AGREEMENT, BY AN AMOUNT EQUAL TO THE CURE AMOUNT; AND
(II) IF, AFTER GIVING EFFECT TO THE FOREGOING RECALCULATIONS, THE BORROWER SHALL
SATISFY THE LIQUIDITY EVENT CONDITION, THEN THE CONDITIONS TO THE APPLICABLE
REQUESTED EXTENSION OF CREDIT
63
SHALL BE DEEMED SATISFIED, PROVIDED THAT ALL OTHER CONDITIONS SET FORTH IN
SECTION 4.02 SHALL HAVE BEEN SATISFIED IN CONNECTION THEREWITH.
(B) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, (I) IN EACH
FOUR-FISCAL-QUARTER PERIOD THERE SHALL BE AT LEAST TWO FISCAL QUARTERS IN WHICH
THE CURE RIGHT IS NOT EXERCISED AND (II) FOR PURPOSES OF THIS SECTION 4.03, THE
CURE AMOUNT SHALL BE NO GREATER THAN THE AMOUNT REQUIRED FOR PURPOSES OF
SATISFYING THE LIQUIDITY EVENT CONDITION.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of and
interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit shall have expired or terminated (or have been
cash collateralized pursuant to Section 2.09(b)) and all LC Disbursements shall
have been reimbursed, each Loan Party executing this Agreement covenants and
agrees, jointly and severally with all of the Loan Parties, with the Lenders
that:
SECTION 5.01. FINANCIAL STATEMENTS; BORROWING BASE AND OTHER INFORMATION.
THE
BORROWER WILL FURNISH TO THE AGENT (WHICH WILL PROMPTLY FURNISH SUCH INFORMATION
TO THE LENDERS):
(A) WITHIN NINETY (90) DAYS AFTER THE END OF EACH FISCAL YEAR OF THE BORROWER,
ITS AUDITED CONSOLIDATED