SUCH PERIOD, EACH LOAN PARTY
HAS PERFORMED ALL OF ITS COVENANTS AND OTHER AGREEMENTS CONTAINED IN THIS
AGREEMENT TO BE PERFORMED BY IT, AND THAT NO DEFAULT OR EVENT OF DEFAULT HAS
OCCURRED, EXCEPT AS SPECIFIED IN SUCH CERTIFICATE AND (II) A SCHEDULE IN FORM
REASONABLY SATISFACTORY TO THE AGENT OF THE COMPUTATIONS USED IN DETERMINING
COMPLIANCE WITH THE COVENANTS CONTAINED IN SUBSECTION 6.1;
(E) AS SOON AS AVAILABLE, AND IN ANY EVENT NO LATER THAN 30 DAYS AFTER THE END
OF EACH FISCAL YEAR OF THE COMPANY, A REASONABLY DETAILED CONSOLIDATED AND
CONSOLIDATING BUDGET FOR THE FOLLOWING FISCAL YEAR AND EACH SUBSEQUENT FISCAL
YEAR THEREAFTER THROUGH 2011 (INCLUDING A PROJECTED CONSOLIDATED AND
CONSOLIDATING BALANCE SHEET OF THE COMPANY AND ITS SUBSIDIARIES AS OF THE END OF
THE FOLLOWING FISCAL YEAR), THE RELATED PROJECTED CONSOLIDATED AND CONSOLIDATING
STATEMENTS OF CASH FLOW AND INCOME FOR SUCH FISCAL YEAR EXPECTED AS OF THE END
OF EACH MONTH DURING SUCH FISCAL YEAR (COLLECTIVELY, THE "PROJECTIONS") IN THE
FORM DELIVERED TO THE BOARD OF DIRECTORS OF THE COMPANY, WHICH PROJECTIONS SHALL
BE ACCOMPANIED BY A CERTIFICATE OF THE CHIEF FINANCIAL OFFICER OF THE
16
COMPANY STATING THAT SUCH PROJECTIONS ARE BASED ON THEN REASONABLE ESTIMATES AND
THEN AVAILABLE INFORMATION AND ASSUMPTIONS; IT BEING UNDERSTOOD THAT THE
PROJECTIONS ARE MADE ON THE BASIS OF THE COMPANY'S THEN CURRENT GOOD FAITH VIEWS
AND ASSUMPTIONS BELIEVED TO BE REASONABLE WHEN MADE WITH RESPECT TO FUTURE
EVENTS, AND ASSUMPTIONS THAT THE COMPANY BELIEVES TO BE REASONABLE AS OF THE
DATE THEREOF (IT BEING UNDERSTOOD THAT PROJECTIONS ARE INHERENTLY UNRELIABLE AND
THAT ACTUAL PERFORMANCE MAY DIFFER MATERIALLY FROM THE PROJECTIONS).
(kk)
Subsection 5.2 of the Credit Agreement is hereby deleted in its
entirety and the following new subsection 5.2 is inserted in its place:
5.2.
CERTIFICATES; OTHER INFORMATION.
FURNISH TO EACH LENDER:
(A)(I) AS SOON AS AVAILABLE, AND IN ANY EVENT NO LATER THAN THE FIFTH BUSINESS
DAY OF EACH CALENDAR WEEK, A REPORT OF THE AVERAGE DAILY LIQUIDITY AVAILABILITY
FOR THE IMMEDIATELY PRECEDING CALENDAR WEEK, IN A FORM REASONABLY SATISFACTORY
TO THE AGENT AND CERTIFIED BY THE CHIEF RESTRUCTURING OFFICER OF THE COMPANY AND
(II) AS SOON AS AVAILABLE, AND IN ANY EVENT NO LATER THAN THE THIRD BUSINESS DAY
PRIOR TO ANY PREPAYMENT, REDEMPTION OR PURCHASE OF THE EXISTING NOTES PURSUANT
TO A PERMITTED NOTES REFINANCING OR ANY REDEMPTION OR PURCHASE OF INDEBTEDNESS
UNDER THE BRIDGE FACILITY OR HEREUNDER
PURSUANT TO AN AUCTION, A REPORT OF THE
AVERAGE DAILY LIQUIDITY AVAILABILITY FOR EACH OF THE THREE MONTHS PRIOR TO SUCH
PREPAYMENT, REDEMPTION OR PURCHASE;
(B) PROMPTLY AND IN ANY EVENT WITHIN 3 BUSINESS DAYS AFTER ANY LOAN PARTY OR ANY
ERISA AFFILIATE KNOWS THAT ANY ERISA EVENT HAS OCCURRED WITH RESPECT TO AN ERISA
PLAN, A STATEMENT OF A RESPONSIBLE OFFICER OF THE COMPANY DESCRIBING SUCH ERISA
EVENT AND THE ACTION, IF ANY, THAT SUCH LOAN PARTY OR SUCH ERISA AFFILIATE HAS
TAKEN AND PROPOSES TO TAKE WITH RESPECT THERETO, ON THE DATE ANY RECORDS,
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