Common use of Variance Reporting Clause in Contracts

Variance Reporting. Subject to the terms of the DIP Orders, commencing on the first full calendar week following the Petition Date and for each calendar week thereafter, on the Friday of such calendar week (the “Subsequent Testing Date”, in each case, testing the trailing four (4) week period ending on the Friday before the applicable testing date), a variance report in a form reasonably satisfactory to the Required Lenders (each, a “Variance Report”) for the applicable Budget Testing Period setting forth, in reasonable detail, any differences between (i) the aggregate cumulative actual “receipts” for such Budget Testing Period on a line by line basis compared to the projected aggregate cumulative “receipts” on a line by line basis set forth in the Approved Budget for such Budget Testing Period, (ii) the aggregate cumulative actual “operating disbursements” on a cumulative basis for such Budget Testing Period on a line by line basis compared to the projected aggregate “operating disbursements:” on a line by line basis set forth in the Approved Budget for such Budget Testing Period and (iii) the aggregate cumulative actual “non-operating disbursements” on a cumulative basis (excluding, for the avoidance of doubt, professional fees) for such Budget Testing Period on a line by line basis compared to the projected aggregate “non-operating disbursements” on a line by line basis (excluding, for the avoidance of doubt, professional fees) set forth in the Approved Budget for such Budget Testing Period (any such difference in clauses (i), (ii) and (iii) above, a “Variance”), together with a statement from the Borrower’s chief financial officer certifying the information contained in such Variance Report. Notwithstanding anything to the contrary herein, to the extent a Subsequent Testing Date is less than four (4) weeks from either the Petition Date or the approval of a Subsequent Budget, the applicable Variances shall be tested using the period of days between such Subsequent Testing Date and the Petition Date or such Subsequent Budget approval date, as applicable. The Variance Report shall also provide a reasonably detailed explanation for any variance that exceed the Permitted Variances. Amounts not used in a Budget Testing Period are not available in a subsequent Budget Testing Period;

Variance Reporting. Subject to the terms of the DIP Orders, commencing on the first full calendar week following the Petition Date and for each calendar week thereafter, By no later than 5:00 p.m. New York City time on the Friday of such each calendar week commencing with the Wednesday following the first full week after the Petition Date (the each such Wednesday, a “Subsequent Testing Variance Report Date”, in each case, testing the trailing four (4) week period ending on the Friday before the applicable testing date), the Debtors shall deliver to the DIP Agent and the DIP Lenders a variance report in a form reasonably satisfactory to the Required Lenders (each, a “Variance Report”) for the applicable Budget Testing Period setting forth, in reasonable detail, any differences between (i) the aggregate cumulative actual “receipts” for such Budget Testing Period on a line by line basis compared to the projected aggregate cumulative “receipts” on a line by line basis receipts and disbursements versus proposed receipts and disbursements set forth in the Approved Budget for such Budget Testing Period, (ii) the aggregate cumulative actual “operating disbursements” on a cumulative basis for such Budget Testing Period on a line by line basis compared to the projected aggregate “operating disbursements:” on a line by line basis set forth in the Approved Budget for such Budget Testing Period and (iii) the aggregate cumulative actual “non-operating disbursements” on a cumulative basis (excluding, for the avoidance of doubt, professional fees) for such Budget Testing Period on a line by line basis compared to the projected aggregate “non-operating disbursements” on a line by line basis (excluding, for the avoidance of doubt, professional fees) set forth in the Approved Budget for such Budget Testing Period (any such difference in clauses (i), (ii) and (iii) above, a “Variance”)prior week, together with a statement certifying compliance with the Budget Covenants (with supporting back-up in reasonable detail) and certifying that no disbursements inconsistent with the Budget Covenants have been made. There should be a weekly teleconference between the Debtors and the DIP Lenders’ professionals to discuss the Variance Report, including a management discussion and analysis of permanent versus timing differences for any variances from the Borrower’s chief financial officer certifying Approved Budget. Security: All obligations of the information contained in such Variance Report. Notwithstanding anything Debtors to the contrary hereinDIP Agent and the DIP Lenders under the DIP Facility, including, without limitation, all principal and accrued interest, premiums, costs, fees, expenses and any other amounts due under the DIP Facility (collectively, the “DIP Obligations”), shall be secured by the following liens and security interests (the “DIP Liens”) on all assets and properties of the Debtors (whether tangible, intangible, real, personal or mixed), whether now owned or hereafter acquired and wherever located, before or after the Petition Date, including, without limitation, all cash, cash equivalents, accounts, inventory, equipment, equity interests or capital stock in domestic and foreign subsidiaries, investment property, instruments, chattel paper, real property, leasehold interests, contracts, patents, copyrights, trademarks and other general intangibles, receivables (including those owed to the extent Debtors generated by intercompany transactions), all claims or causes of action (including, subject to entry of the Final DIP Order, Avoidance Actions (to be defined in the DIP Orders) and the proceeds thereof) and all products, offspring, profits and proceeds thereof (collectively, the “DIP Collateral”): 1. secured pursuant to Bankruptcy Code §364(c)(2), subject to the Carve-Out (as defined below), by a Subsequent Testing Date first-priority perfected lien on, and security interest in, all present and after-acquired property of the Debtors, wherever located, not subject to a perfected lien or security interest on the Petition Date; 2. secured pursuant to Bankruptcy Code §364(c)(3), subject to the Carve-Out, by a junior perfected lien on, and security interest in, all present and after-acquired property of the Debtors, wherever located, that is less than four (4) weeks from either subject to a valid, perfected, enforceable and unavoidable lien or security interest on the Petition Date or the approval of subject to a Subsequent Budget, the applicable Variances shall be tested using the period of days between such Subsequent Testing Date and lien or security interest in existence on the Petition Date that is perfected subsequent thereto as permitted by Bankruptcy Code §546(b), in each case, that is permitted to be senior to the DIP Liens pursuant to the DIP Orders; and 3. secured pursuant to Bankruptcy Code §364(d)(1), subject to the Carve-Out, by a first priority, perfected senior priming lien on, and security interest in, all present and after-acquired property of the Debtors, wherever located, that is or such Subsequent Budget approval date, as applicablewas subject to a perfected lien or security interest of the Secured Parties on the Petition Date. The Variance Report DIP Liens shall also provide a reasonably detailed explanation for be effective and perfected as of the entry of the Interim DIP Order and without requiring the execution, filing or recording of mortgages, security agreements, pledge agreements, control agreements, financing statements or other agreements or instruments, or the taking of any variance action to obtain possession or control of any collateral. However, if the Requisite DIP Lenders so require, the Debtors shall use their commercially reasonable efforts to execute, file or record any or all of the documents described in the preceding sentence and/or take any action so that exceed the Permitted Variances. Amounts not used in a Budget Testing Period are not available in a subsequent Budget Testing Period;DIP Agent obtains possession or control of any collateral.

Variance Reporting. Subject to the terms of the DIP OrdersBeginning on February 16, commencing on the first full calendar week following the Petition Date 2018 and for each calendar week thereafter, on the every Friday of such calendar week (the “Subsequent Testing Date”, in each case, testing the trailing four (4) week period ending on the Friday before the applicable testing date), a variance report in a form reasonably satisfactory to the Required Lenders thereafter (each, a “Variance Reporting Delivery Date”), the Loan Parties shall deliver to the Administrative Agent and the Lenders (email shall suffice) a report, in form and substance satisfactory to the Administrative Agent (at the direction of the Required Lenders) in all material respects (each a “Variance Report”), setting forth (i) actual results for the applicable following items identified in the Approved Budget: (A) Total Cash Receipts, (B) Total Operating Disbursements, (C) “total financing cash receipts/disbursements”, (D) “total QP disbursements / adjustments”, (E) “total other disbursements / adjustments”, and (F) “liquidity” of the Loan Parties for the previous calendar week ended on the immediately preceding Friday, and setting forth all the variances, on a line item and aggregate basis, as compared to the corresponding amounts set forth in the then-current Approved Budget Testing Period setting forthfor such week/period, in each case, on a cumulative basis from the beginning of the period covered by the then-current Approved Budget, together with an explanation of (1) in reasonable detail, all material variances from the then current Approved Budget for such period and (2) in the case of a Variance Report immediately following the end of any differences between Testing Period other than a Permitted Variance, the Loan Parties’ compliance with the Permitted Variances for such Testing Period or identifying and explaining in reasonable detail any non-compliance by the Loan Parties with the Permitted Variances for such Testing Period, and (iii) the aggregate cumulative actual “receipts” for such Budget Testing Period on a line by line basis compared to variance, if any, in the projected aggregate cumulative “receipts” on a line by line basis set forth amount contained in the Approved Budget for such Budget Testing Period, (ii) the aggregate cumulative actual “operating disbursements” on a cumulative basis for such Budget Testing Period on a line by line basis with respect to projected Cumulative Net Operating Cash Flow compared to the projected aggregate “operating disbursements:” on a line actual Cumulative Net Operating Cash Flow as of the end of the last day covered by line basis set forth in the Approved Budget for such Budget Testing Period and (iii) the aggregate cumulative actual “non-operating disbursements” on a cumulative basis (excluding, for the avoidance of doubt, professional fees) for such Budget Testing Period on a line by line basis compared to the projected aggregate “non-operating disbursements” on a line by line basis (excluding, for the avoidance of doubt, professional fees) set forth in the Approved Budget for such Budget Testing Period (any such difference in clauses (i), (ii) and (iii) above, a “Variance”), together with a statement from the Borrower’s chief financial officer certifying the information contained in such Variance Report. Notwithstanding anything Variances other than any Permitted Variance, if any, from the applicable Approved Budget, and any proposed changes to the contrary hereinapplicable Approved Budget, shall be subject to the extent a Subsequent Testing Date is less than four (4) weeks from either prior written consent of the Petition Date or the approval of a Subsequent Budget, the applicable Variances shall be tested using the period of days between such Subsequent Testing Date Administrative Agent and the Petition Date or such Subsequent Budget approval date, as applicable. The Variance Report shall also provide a reasonably detailed explanation for any variance that exceed the Permitted Variances. Amounts not used in a Budget Testing Period are not available in a subsequent Budget Testing Period;Required Lenders.

Variance Reporting. Subject to No later than 5:00 p.m. (New York City time) every Thursday, commencing with the terms Thursday of the DIP Orders, commencing on the first full calendar second week following the week in which the Petition Date and for occurs (each calendar week thereaftersuch Thursday, on the Friday of such calendar week (the “Subsequent Testing DateVariance Report Deadline”, in each case, testing the trailing four (4) week period ending on the Friday before the applicable testing date), the Loan Parties shall deliver to the Lender Professionals a variance report report, each in a form reasonably satisfactory form, detail and substance consistent with the Loan Parties’ prepetition reporting to the Required Lenders Lender Professionals (each, a “Variance Report”) for ), setting forth the applicable Budget Testing Period setting forthdifference between, in reasonable detailon a line-by-line and aggregate basis, any differences between (i) the aggregate cumulative actual “receipts” for such Budget Testing Period on a line by line basis compared to the projected aggregate cumulative “receipts” on a line by line basis operating receipts and budgeted operating receipts as set forth in the Approved Budget in effect for such Budget Testing Periodthe relevant periods (the “Receipts Variance”), (ii) the aggregate cumulative actual “operating disbursements” on a cumulative basis for such Budget Testing Period on a line by line basis compared to the projected aggregate “disbursements and budgeted operating disbursements:” on a line by line basis disbursements as set forth in the Approved Budget for such Budget Testing Period (excluding professional fees of the Chapter 11 Debtors) (the “Disbursements Variance”) and (iii) actual disbursements and accruals with respect to professional fees of the aggregate cumulative actual “non-operating disbursements” on a cumulative basis (excluding, for Chapter 11 Debtors and budgeted disbursements and accruals with respect to professional fees of the avoidance of doubt, professional fees) for such Budget Testing Period on a line by line basis compared to the projected aggregate “non-operating disbursements” on a line by line basis (excluding, for the avoidance of doubt, professional fees) Chapter 11 Debtors set forth in the Approved Budget for such Budget Testing Period (any such difference in clauses (i), (ii) and (iii) above, a the “Debtor Professional Variance”), in each case, for the Applicable Period, and together with a statement from the Borrower’s chief financial officer certifying the information contained in such Variance Report. Notwithstanding anything to the contrary herein, to the extent a Subsequent Testing Date is less than four (4) weeks from either the Petition Date or the approval of a Subsequent Budget, the applicable Variances shall be tested using the period of days between such Subsequent Testing Date and the Petition Date or such Subsequent Budget approval date, as applicable. The Variance Report shall also provide a reasonably detailed explanation of such Receipts Variance, Disbursements Variance and Debtor Professional Variance; provided, that in addition to the foregoing, on the Thursday of the first full week following the Petition Date, the Loan Parties shall deliver to the Lender Professionals a Variance Report solely with respect to the Debtor Professional Variance for any variance that exceed the Permitted Variances. Amounts not used in a Budget Testing Period are not available in a subsequent Budget Testing Applicable Period;.