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