Common use of Budget Compliance Clause in Contracts

Budget Compliance. (a) The initial Approved Budget shall depict, on a weekly basis, cash revenues, receipts, expenses and disbursements and other information for the first ten (10) week period from the Third Amendment Effective Date and such initial Approved Budget shall be approved by, and be in form and substance satisfactory to, the Agents in their sole discretion. Until a Recapitalization Transaction has been consummated, the Approved Budget shall be updated, modified or supplemented (with the consent and/or at the request of the Agents) from time to time, but in any event not less than on a weekly basis (with the delivery to the Agents on or before the Friday of each week), and each such updated, modified or supplemented budget shall be approved by, and be in form and substance satisfactory to the Agents in their sole discretion, shall only add projections for the last week of the then thirteen (13) week period and shall not modify any prior periods, and no such updated, modified or supplemented budget shall be effective until so approved and once so approved shall be deemed an Approved Budget; provided that the next updated budget to be delivered on June 20, 2014 shall add five weeks of projections after the end of the last week of the initial Approved Budget (it being understood that the initial Approved Budget contains projections for only ten (10) weeks and the addition of the five additional weeks to the budget to be delivered on June 20, 2014 will result in a full thirteen (13) week cash flow). Each Approved Budget delivered to the Agents shall be accompanied by such supporting documentation as reasonably requested by the Agents. (b) Until a Recapitalization Transaction has been consummated, the Borrowers shall deliver to the Agents on or before 12:00 p.m. (Eastern time) on Friday of each week a Compliance Certificate, and such Compliance Certificate shall be in substance satisfactory to the Agents, executed by a Senior Officer of the Borrowers certifying that (i) the Loan Parties are in compliance with the covenants contained herein and in the Third Amendment and (ii) no Default or Event of Default has occurred or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto. Together with such Compliance Certificate, the Borrowers shall deliver an Approved Budget Variance Report, each of which shall be prepared by the Borrowers as of the last day of the Prior Week or the Cumulative Four Week Period, as applicable, and shall be in form and substance satisfactory to the Agents. Notwithstanding the foregoing, the first Compliance Certificate and Approved Budget Variance Report shall cover the weeks ending June 7, 2014 and June 14, 2014 and shall be furnished on June 20, 2014.

Budget Compliance. (ai) The initial Approved Budget Subject to the terms and conditions set forth below, the proceeds of Loans made under this Agreement shall depict, on a weekly basis, cash revenues, receipts, expenses and disbursements and other information be used by the Borrower solely for the first ten (10) week period from purposes and up to the Third Amendment Effective Date and such initial Approved Budget shall be approved by, and be amounts set forth in form and substance satisfactory to, the Agents in their sole discretion. Until a Recapitalization Transaction has been consummated, the Approved Budget shall be updated, modified or supplemented (with the consent and/or at the request of the Agents) from time to time, but in any event not less than on a weekly basis (with the delivery to the Agents on or before the Friday of each week), and each such updated, modified or supplemented budget shall be approved by, and be in form and substance satisfactory to the Agents in their sole discretion, shall only add projections for the last week of applicable line item during the then thirteen (13) week period and shall not modify any prior periods, and no such updated, modified or supplemented budget shall be effective until so approved and once so approved shall be deemed an Approved Budget; provided that the next updated budget to be delivered on June 20, 2014 shall add five weeks of projections after the end of the last week of the initial Approved Budget (it being understood that the initial Approved Budget contains projections for only ten (10) weeks and the addition of the five additional weeks to the budget to be delivered on June 20, 2014 will result in a full thirteen (13) week cash flow). Each Approved Budget delivered to the Agents shall be accompanied by such supporting documentation as reasonably requested by the Agentsapplicable seven-day period. (bii) Until a Recapitalization Transaction has been consummatedFor each period beginning on July 18, 2008 and ending on the last day of each seven-day period set forth in the Approved Budget, the Borrowers (A) aggregate cumulative cash inflows of the Borrower shall deliver be at least 67% of the aggregate cumulative amount and (B) aggregate cumulative expenditures by the Borrower shall not exceed 126.5% of the aggregate cumulative amount; provided, however, that, notwithstanding the foregoing, with respect to restructuring professional fees and expenses, the aggregate cumulative expenditures by the Borrower for restructuring professional fees and expenses shall not exceed 100% of the aggregate cumulative amount, in each case, budgeted for such cumulative time period pursuant to the Agents on or before 12:00 p.m. Approved Budget. (Eastern timeiii) on Friday of each week a Compliance CertificateIn addition, and such Compliance Certificate shall be in substance satisfactory to the Agents, executed by a Senior Officer Borrower’s expenditures under any line item for any seven-day period may include the sum of the Borrowers certifying that budgeted amount for such line item for such seven-day period plus any excess of the cumulative amounts budgeted for such line item for the immediately preceding three seven-day periods (i) the Loan Parties are in compliance with the covenants contained herein and in the Third Amendment and (ii) no Default or Event of Default has occurred or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto. Together with such Compliance Certificateshorter, the Borrowers shall deliver an Approved Budget Variance Report, each of which shall be prepared by the Borrowers as of Post-Petition period ending on the last day of the Prior Week immediately preceding seven-day period) over the cumulative amount of Borrower’s actual expenditures under such line item for such prior time period. (iv) To the extent any additional line item is added to the Approved Budget in accordance with the provisions of the Interim Order or the Cumulative Four Week PeriodFinal Order, such line items shall be subject to such variance provisions as applicableAgent may determine in Agent’s sole discretion. (v) Except as expressly set forth above, no unused portion of any line item in the Approved Budget may be carried forward or carried backward to the same or any other line item for any prior or subsequent seven-day period in the Approved Budget. (vi) Agent and Lenders (A) may assume that the Borrower will comply with the Approved Budget, (B) shall have no duty to monitor such compliance and (C) other than with respect to the Carve-Out, shall not be obligated to pay (directly or indirectly from the Collateral) any unpaid expenses incurred or authorized to be incurred pursuant to any Approved Budget. The line items in the Approved Budget for payment of interest, expenses and other amounts to Agent and Lenders are estimates only, and shall be the Borrower remains obligated to pay any and all Obligations in form and substance satisfactory to accordance with the Agents. Notwithstanding terms of the foregoingLoan Documents, the first Compliance Certificate Interim Order and the Final Order. Nothing in any Approved Budget Variance Report (including any estimates of a loan balance in excess of Borrowing Base restrictions) shall cover constitute an amendment or other modification of this Agreement or any of the weeks ending June 7, 2014 and June 14, 2014 and shall be furnished on June 20, 2014Borrowing Base restrictions or other lending limits set forth therein.

Budget Compliance. Subject to the terms and conditions set forth below, the proceeds of Notes issued under this Agreement shall be used by the Issuers solely for the purposes and up to the amounts set forth in the Approved Budget and: (a) The initial Approved Budget shall depict, on a weekly basis, cash revenues, receipts, expenses and disbursements and other information for the first ten (10) week period from the Third Amendment Effective Date and such initial Approved Budget shall be approved by, and be in form and substance satisfactory to, the Agents in their sole discretion. Until a Recapitalization Transaction has been consummated, the Approved Budget shall be updated, modified or supplemented (beginning with the consent and/or at the request of the Agents) from time to time, but in any event not less than on a weekly basis (with the delivery to the Agents on or before the Friday of each week), and each such updated, modified or supplemented budget shall be approved by, and be in form and substance satisfactory to the Agents in their sole discretion, shall only add projections for the last 4th week of the then thirteen (13) week period and shall not modify any prior periods, and no such updated, modified or supplemented budget shall be effective until so approved and once so approved shall be deemed an Approved Budget; provided that the next updated budget to be delivered on June 20, 2014 shall add five weeks of projections after the end of the last week of the initial Approved Budget (it being understood that the initial Approved Budget contains projections for only ten (10) weeks and the addition of the five additional weeks to the budget to be delivered on June 20Closing Date, 2014 will result in a full thirteen (13) week cash flow). Each Approved Budget delivered to the Agents shall be accompanied by such supporting documentation as reasonably requested by the Agents. (b) Until a Recapitalization Transaction has been consummated, the Borrowers shall deliver to the Agents on or before 12:00 p.m. (Eastern time) on Friday of each week a Compliance Certificate, and such Compliance Certificate shall be in substance satisfactory to the Agents, executed by a Senior Officer of the Borrowers certifying that (i) the Loan Parties are in compliance with the covenants contained herein and in the Third Amendment and (ii) no Default or Event of Default has occurred or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto. Together with such Compliance Certificate, the Borrowers shall deliver an Approved Budget Variance Report, each of which shall be prepared by the Borrowers as of the last day of each week (1) the Prior Week Cumulative Net Operating Cash Flows for the period beginning on the first day of the Budget Period covered by the then applicable Approved Budget through the last day of the Budget Period then elapsed to date covered by the then applicable Approved Budget (as such Approved Budget may be updated pursuant to the terms hereof) (each such period, a “Test Period”), as compared to the Cumulative Net Operating Cash Flows for such Test Period set forth in the Approved Budget, shall be not more than $4,000,000 less than the amount set forth in the Approved Budget for such Test Period, (2) maximum cumulative Professional Fees incurred during such Test Period shall not exceed the amount set forth in the applicable Approved Budget for such period by more than 15% and (3) maximum cumulative Capital Expenditures paid in cash during such Test Period shall not exceed the amount set forth in the applicable Approved Budgets for such Test Period by more than 10%; (i) to the extent any additional line item is added to the Budget in accordance with the provisions of the Interim Order or the Final Order, such line items shall be included in the Cumulative Four Week Period, as applicable, Net Operating Cash Flows and shall be in form and substance satisfactory subject to the Agentssame variance provisions as set forth in Section 6.5(a); (ii) except as would not violate the cumulative variance tests set forth above, no unused portion of any line item in the Budget may be carried forward to the same or any other line item for any prior or subsequent period in the Budget; and (b) the Agent (A) may assume that the Issuers will comply with each Budget to the extent required by this Section 6.5, (B) shall have no duty to monitor such compliance and (C) shall not be obligated to pay (directly or indirectly from the Collateral) any unpaid expenses incurred or authorized to be incurred pursuant to any Budget. Notwithstanding The line items in each Budget for payment of interest, expenses and other amounts to Agent and Purchasers are estimates only, and each Issuer remains obligated to pay any and all Obligations in accordance with the foregoingterms of the Note Documents, the first Compliance Certificate Interim Order and Approved the Final Order. Nothing in any Budget Variance Report (including any estimates of the outstanding principal amount of Notes) shall cover the weeks ending June 7, 2014 and June 14, 2014 and shall be furnished on June 20, 2014constitute an amendment or other modification of this Agreement or any of such restrictions or other lending limits set forth therein.

Budget Compliance. (a) The initial Approved Budget shall depict, on a weekly basis, cash revenues, receipts, expenses and disbursements and other information for the first ten (10) week 10)week period from the Third First Amendment Effective Date and such initial Approved Budget shall be approved by, and be in form and substance satisfactory to, the Agents Administrative Agent in their its sole discretion. Until a Recapitalization Transaction has been consummated, the Approved Budget shall be updated, modified or supplemented (with the consent and/or at the request of the AgentsAdministrative Agent) from time to time, but in any event not less than on a weekly basis (with the delivery to the Agents Administrative Agent on or before the Friday of each week), and each such updated, modified or supplemented budget shall be approved by, and be in form and substance satisfactory to the Agents Administrative Agent in their its sole discretion, shall only add projections for the last week of the then thirteen (13) week period and shall not modify any prior periods, and no such updated, modified or supplemented budget shall be effective until so approved and once so approved shall be deemed an Approved Budget; provided that the next updated budget to be delivered on June 20, 2014 shall add five weeks of projections after the end of the last week of the initial Approved Budget (it being understood that the initial Approved Budget contains projections for only ten (10) weeks and the addition of the five additional weeks to the budget to be delivered on June 20, 2014 will result in a full thirteen (13) week cash flow). Each Approved Budget delivered to the Agents Administrative Agent shall be accompanied by such supporting documentation as reasonably requested by the AgentsAdministrative Agent. (b) Until a Recapitalization Transaction has been consummated, the Borrowers shall deliver to the Agents Administrative Agent on or before 12:00 p.m. (Eastern time) on Friday of each week a Compliance Certificate, and such Compliance Certificate shall be in substance satisfactory to the AgentsAdministrative Agent, executed by a Senior Officer of the Borrowers certifying that (i) the Loan Parties are in compliance with the covenants contained herein and in the Third Amendment herein, and (ii) no Default or Event of Default has occurred or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto. Together , together with such Compliance Certificate, the Borrowers shall deliver an Approved Budget Variance Report, each of which shall be prepared by the Borrowers as of the last day of the Prior Week or for the Cumulative Four Week Period, as applicable, and shall be in form and substance satisfactory to the AgentsAdministrative Agent. Notwithstanding the foregoing, the first Compliance Certificate and Approved Budget Variance Report shall cover the weeks ending June 7, 2014 and June 14, 2014 and shall be furnished on June 20, 2014.

Budget Compliance. Company shall, within 4 Business Days after the last day of each week (a) The initial Approved Budget shall depicta “Test Date”), on deliver a weekly basiscertificate, cash revenues, receipts, expenses and disbursements and other information for the first ten (10) week period from the Third Amendment Effective Date and such initial Approved Budget shall be approved by, and be in form and substance reasonably satisfactory to, the Agents in their sole discretion. Until to Administrative Agent (a Recapitalization Transaction has been consummated, the Approved “Budget shall be updated, modified or supplemented (with the consent and/or at the request of the Agents) from time to time, but in any event not less than on a weekly basis (with the delivery to the Agents on or before the Friday of each weekCompliance Certificate”), and each such updateddemonstrating that Total Utilization of Revolving Commitments does not exceed, modified or supplemented budget shall be approved by, and be in form and substance satisfactory to the Agents in their sole discretion, shall only add projections for the last week of the then thirteen (13) week period and shall not modify any prior periods, and no such updated, modified or supplemented budget shall be effective until so approved and once so approved shall be deemed an Approved Budget; provided that the next updated budget to be delivered on June 20, 2014 shall add five weeks of projections after the end of the last week of the initial Approved Budget (it being understood that the initial Approved Budget contains projections for only ten (10) weeks and the addition of the five additional weeks to the budget to be delivered on June 20, 2014 will result in a full thirteen (13) week cash flow). Each Approved Budget delivered to the Agents shall be accompanied by such supporting documentation as reasonably requested by the Agents. (b) Until a Recapitalization Transaction has been consummated, the Borrowers shall deliver to the Agents on or before 12:00 p.m. (Eastern time) on Friday of each week a Compliance Certificate, and such Compliance Certificate shall be in substance satisfactory to the Agents, executed by a Senior Officer of the Borrowers certifying that more than (i) the Loan Parties are 25% for each Test Date occurring in compliance with the covenants contained herein and in the Third Amendment February or March 2008, and (ii) no Default or Event of Default has occurred or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof 20% for each Test Date occurring in April 2008 and any corrective action taken or proposed to be taken with respect thereto. Together with such Compliance Certificatemonth thereafter, the Borrowers shall deliver an Approved Total Utilization of Revolving Commitments set forth in the Budget Variance Report, each of which shall be prepared by the Borrowers as of for the last day of the Prior Week immediately preceding month, if the Test Date is on or before the Cumulative Four Week Period15th day of such month (other than the month of February 2008), or for the last day of such month, if the Test Date is on or after the 16th day of such month and for any Test Date in the month of February 2008; provided that no amendment of or modification to the Budget approved by Administrative Agent following a breach arising under this provision shall be effective to cure or waive such breach without the consent of the Requisite Lenders; provided, further, that, Company shall not submit a Funding Notice or Issuance Notice (and for the avoidance of doubt, the Lenders shall not be required to fund any Loans and the Issuing Bank shall not be required to issue any Letters of Credit) if the amount of the Loans and/or Letters of Credit requested pursuant thereto would cause the Total Utilization of Revolving Commitments to exceed the maximum amount of Total Utilization of Revolving Commitments permitted under this Section 6.8(b). In the event that Company proposes to use any Adequate Protection Portion for any purpose of other than the adequate protection payments referred to in Section 2.6, Company shall provide an updated Budget reasonably acceptable to Administrative Agent for the purposes of determining whether to approve such use (as applicablecontemplated in Section 2.6).” (ff) Section 6.8(c) (Excess Availability) of the Revolving DIP Credit Agreement is hereby amended by: (i) deleting the word “and” at the end of clause (i) thereof, (ii) deleting the words “Beginning on January 11, 2008 and thereafter” from clause (ii) thereof and replacing them with the words “Beginning on January 11, 2008 until the day immediately prior to the Fifth Amendment Effective Date”, (iii) deleting the period at the end of clause (ii) thereof and replacing it with a semicolon, and shall be in form and substance satisfactory to (iv) inserting after such semicolon at the Agents. Notwithstanding the foregoingend of clause (ii) thereof, the first Compliance Certificate and Approved Budget Variance Report shall cover the weeks ending June 7, 2014 and June 14, 2014 and shall be furnished on June 20, 2014.a new clause (iii) as follows: