Eighth Amendment to Amended and Restated Loan Agreement dated March 8, 2007


     

    Exhibit
      10.1

     

    EIGHTH
      AMENDMENT

     

    TO
      AMENDED And restated LOAN AGREEMENT

     

    THIS
      EIGHTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
      (“Eighth
      Amendment”) is made as of this 8th day of March, 2007, by and among BANK
      OF AMERICA, N.A.
      (“Bank
      of America”) (as successor-in-interest to Fleet Capital Corporation), with an
      office at One South Wacker Drive, Suite 3400, Chicago, Illinois 60606,
      individually as a Lender and as Agent (“Agent”) for itself and any other
      financial institution which is or becomes a party hereto (each such financial
      institution, including Fleet, is referred to hereinafter individually as a
      “Lender” and collectively as the “Lenders”), the CANADIAN
      PARTICIPANTS party
      hereto, the U.K.
      PARTICIPANTS party
      hereto, BANK
      OF AMERICA, N.A.
      (acting
      through its Canada branch) (“Canadian Agent”), BANK
      OF AMERICA, N.A.,
      London
      branch (as successor-in-interest to Fleet National Bank, London branch, trading
      as FleetBoston Financial), individually as a Lender and as U.K. Agent (“U.K.
      Agent”), WELLS
      FARGO FOOTHILL, LLC,
      as
      Syndication Agent, LASALLE
      BANK NATIONAL ASSOCIATION,
      as
      Documentation Agent, the LENDERS, KATY
      INDUSTRIES, INC.,
      a
      Delaware corporation, with its chief executive office and principal place of
      business at 2461 South Clark Street, Suite 630, Arlington, Virginia 22202
      (“Katy” or “U.S. Borrower”), WOODS
      INDUSTRIES (CANADA) INC.,
      a
      Canadian corporation with its chief executive office and principal place of
      business at 375 Kennedy Road, Scarborough, Ontario M1K 2A3 (“Woods Canada” or
“Canadian Borrower”), CEH
      LIMITED (“CEH”),
      a private limited company incorporated under the laws of England and Wales
      and
      registered with Company No. 4992300 whose registered office is Cardew Way,
      Redruth Cornwall, TR15 1ST, England and CONTICO
      MANUFACTURING LIMITED (“CML”
      and together with CEH, collectively, “U.K. Borrower”), a private limited company
      incorporated under the laws of England and Wales and registered with Company
      No.
      1338772 whose registered office is Cardew Way, Redruth Cornwall, TR15 1ST,
      England. Katy, Woods Canada, CEH and CML are sometimes hereinafter referred
      to
      individually as a “Borrower” and collectively as “Borrowers.”

     

    W
      I T
      N E S S E T H:

     

    WHEREAS,
      Agent, Lenders, Canadian Participants, U.K. Participants, Canadian Agent, U.K.
      Agent and Borrowers (other than CML) entered into a certain Amended and Restated
      Loan Agreement dated as of April 20, 2004, as amended by a certain First
      Amendment to Amended and Restated Loan Agreement dated June 29, 2004 by and
      among Agents, Lenders and Borrowers (other than CML), by a certain Second
      Amendment to Amended and Restated Loan and Security Agreement dated March 29,
      2005 by and among Agents, Lenders and Borrowers (other than CML), by a certain
      Third Amendment to Amended and Restated Loan and Security Agreement dated April
      13, 2005 by and among Agents, Lenders and Borrowers (other than CML), by a
      certain Fourth Amendment to Amended and Restated Loan and Security Agreement
      dated June 8, 2005 by and among Agents, Lenders and Borrowers (other than CML),
      by a certain Fifth Amendment to Amended and Restated Loan Agreement dated as
      of
      August 4, 2005 by and among Agent, Lenders and Borrowers (other than CML),
      and
      by a certain Sixth Amendment to Amended and Restated Loan Agreement dated March
      9, 2006 by and among Agents, Lenders and Borrowers (other than CML) and by
      a
      certain Seventh Amendment to Amended and Restated Loan and Security Agreement
      dated November 28, 2006 by and among Agents, Lenders and Borrowers (said Loan
      Agreement, as so amended, is hereinafter referred to as the “Loan Agreement”);
      and

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    WHEREAS,
      Borrowers desire to amend and modify certain provisions of the Loan Agreement
      pursuant to the terms and conditions hereof;

     

    WHEREAS,
      subject to the terms and conditions hereof, Agent, Lenders, Canadian
      Participants, U.K. Participants, U.K. Agent and Canadian Agent are willing
      to so
      amend and modify the Loan Agreement; and

     

    NOW
      THEREFORE, in consideration of the premises, the mutual covenants and agreements
      herein contained, and any extension of credit heretofore, now or hereafter
      made
      by Agent and Lenders to Borrowers, the parties hereto hereby agree as
      follows:

     

    
      	1.  	
              Definitions.
                All capitalized terms used herein without definition shall have the
                meanings given to them in the Loan
                Agreement.

            


    

     

    
      	2.  	
              Amended
                Definitions.
                On the Eighth Amendment Effective Date, the definitions of “Availability
                Block” and “U.S. Borrowing Base” are hereby deleted and the following is
                inserted in their stead.

            


    

     

    “Availability
      Block
      - Five
      Million Dollars ($5,000,000) during the first three calendar quarters of each
      calendar year and Seven Million Five Hundred Thousand Dollars ($7,500,000)
      during the fourth calendar quarter of each calendar year.

     

    *
      *
      *

     

    U.S.
      Borrowing Base
      - as at
      any date of determination thereof, an amount equal to the lesser
      of:

     

    
      	 	
              (i)

            	
              the
                U.S. Revolving Loan Commitment, or

            


    

     

    
      	 	
              (ii)

            	
              an
                amount equal to:

            


    

     

    (a) 85%
      of
      the net amount of Eligible Accounts of U.S. Loan Parties (as defined below)
      outstanding at such date; plus

     

    (b) the
      lesser of (1) $60,000,000 or (2) 85% of the value of the Net Orderly Liquidation
      Value of Eligible Inventory of U.S. Loan Parties at such date; plus

     

    (c) to
      the
      extent not included in the U.K. Borrowing Base or the Canadian Borrowing Base
      as
      evidenced by a Borrowing Base Certificate, 85% of the net amount of Eligible
      Accounts of U.K. Loan Parties (other than CML) outstanding at such date;
      plus

     

    (d) to
      the
      extent not included in the U.K. Borrowing Base or the Canadian Borrowing Base
      as
      evidenced by a Borrowing Base Certificate, the lesser of (1) $6,000,000 or
      (2)
      85% of the Net Orderly Liquidation Value of Eligible Inventory of U.K. Loan
      Parties (other than CML) at such date; minus

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (e) the
      sum
      of (1) the Hedge Reserve applicable to U.S. Loan Parties, (2) Dilution Reserves
      applicable to U.S. Loan Parties, (3) Rent Reserves applicable to U.S. Loan
      Parties, (4) the Revolving Loan Repayment Reserve applicable to U.S. Loan
      Parties, (5) the PAYE Reserve (to the extent Eligible Accounts and Eligible
      Inventory of U.K. Loan Parties (other than CML) are included in the U.S.
      Borrowing Base), (6) the aggregate amount of other reserves applicable to U.S.
      Loan Parties, if any, established by Agent in the exercise of its Permitted
      Discretion against Eligible Accounts and Eligible Inventory and (7) the
      Availability Block.”

     

    provided
      that Agent, in the exercise of its Permitted Discretion, may (a) increase or
      decrease reserves against Eligible Accounts Receivable and Eligible Inventory
      and (b) reduce the advance rates provided in this definition, or restore
      such advance rates to any level equal to or below the advance rates in effect
      as
      of the Closing Date.

     

    For
      purposes hereof, (1) the net amount of Eligible Accounts at any time shall
      be
      the face amount of such Eligible Accounts, less any and all returns, rebates,
      discounts (which may, at Agent’s option, be calculated on shortest terms),
      credits allowance or excise taxes of any nature at any time issued, owing,
      claimed by Account Debtors, granted, outstanding or payable in connection with
      such accounts at such time and (2) the amount of Eligible Inventory shall be
      determined on a first-in, first-out, lower of cost or market basis in accordance
      with GAAP, with costs adjusted for differences between standard and actual
      costs.”

     

    
      	3.  	
              Revolving
                Loan Commitments.
                As of the Eighth Amendment Effective Date, the aggregate amount of
                Revolving Loan Commitments shall be reduced from Ninety Million Dollars
                ($90,000,000) to Eighty Million Dollars ($80,000,000) and each Lender’s
                Revolving Loan Commitment shall be correspondingly reduced pro rata
                to the
                amount set forth below such Lender’s signature on the signature page to
                this Eighth Amendment. Agents and Lenders hereby waive any required
                notice
                before any such reduction in the Revolving Loan Commitments become
                effective.

            


    

     

    
      	4.  	
              Financial
                Covenants.
                Upon the Eighth Amendment Effective Date, Exhibit
                7.3
                attached to the Loan Agreement shall be deemed deleted and Exhibit
                7.3
                attached hereto and incorporated herein shall be inserted in its
                stead.

            


    

     

    
      	5.  	
              Amendment
                Fee.
                In order to induce Agent and Lenders to enter into this Eighth Amendment,
                Borrowers agree to pay to Agent for the ratable benefit of U.S. Lenders
                an
                amendment fee in the amount of $116,250. Said fee shall be due and
                payable
                and shall be deemed fully earned and non-refundable on the Eighth
                Amendment Effective Date.

            


    

     

    
      	6.  	
              Condition
                Precedent.
                This Eighth Amendment shall become effective
                upon:

            


    

     

    (x) the
      execution and delivery of this Eighth Amendment by each of Borrowers, Agents
      and
      Lenders; and

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (y) Borrower
      shall have paid to Agent the amendment fee referred to in Section 5 of the
      Eighth Amendment.

     

    The
      date
      on which such condition precedent is satisfied shall be referred to as the
      “Eighth Amendment Effective Date.”

     

    
      	7.  	
              Continuing
                Effect.
                Except as otherwise specifically set out herein, the provisions of
                the
                Loan Agreement shall remain in full force and
                effect.

            


    

     

    
      	8.  	
              Governing
                Law.
                This Eighth Amendment and the obligations arising hereunder shall
                be
                governed by, and construed and enforced in accordance with, the laws
                of
                the State of Illinois applicable to contracts made and performed
                in such
                state, without regard to the principles thereof regarding conflicts
                of
                laws.

            


    

     

    
      	9.  	
              Counterparts.
                This Eighth Amendment may be executed in any number of separate
                counterparts, each of which shall, collectively and separately, constitute
                one agreement.

            


    

     

    (Signature
      Page Follows)

     

    



    
      
        
          
            	 	 	 


          

           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
          


        

      

    



    (Signature
      Page to Eighth Amendment to


    Amended
      and Restated Loan and Security Agreement)

     

    IN
      WITNESS WHEREOF,
      this
      Eighth Amendment has been duly executed on the day and year specified at the
      beginning of this Eighth Amendment.

     

    


    
      	 	
              KATY
                INDUSTRIES, INC.

               

              By:
                /s/ Amir Rosenthal

              Name:
                Amir Rosenthal

              Title:
                Vice President and CFO

               

            


    

    


    



    
      
        
          
            	 	 	 


          

           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
          


        

      

    



    


    (Signature
      Page to Eighth Amendment to

    Amended
      and Restated Loan and Security Agreement)

     

    


    
      	 	
              CEH
                LIMITED

               

              By:
                /s/ Christopher W. Anderson

              Name:
                Christopher W. Anderson

              Title:
                Authorized Manager

               

              and

               

              By:
                /s/ Christopher Lacovara

              Name:
                Christopher Lacovara

              Title:
                Authorized Manager

               

            
	 	
              CONTICO
                MANUFACTURING LIMITED

               

              By:
                /s/ Christopher W. Anderson

              Name:
                Christopher W. Anderson

              Title:
                Authorized Manager

               

              and

               

              By:
                /s/ Christopher Lacovara

              Name:
                Christopher Lacovara

              Title:
                Authorized Manager

               

            


    

    


    



    
      
        
          
            	 	 	 


          

           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
          


        

      

    



    


    (Signature
      Page to Eighth Amendment to

    Amended
      and Restated Loan and Security Agreement)

     

    


    
      	 	
              WOODS
                INDUSTRIES (CANADA) INC.

               

              By:
                /s/ Amir Rosenthal

              Name:
                Amir Rosenthal

              Title:
                Secretary

               

            


    

    


    



    
      
        
          
            	 	 	 


          

           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
          


        

      

    



    


    (Signature
      Page to Eighth Amendment to

    Amended
      and Restated Loan and Security Agreement)

     

    


    
      	 	
              BANK
                OF AMERICA, N.A.,

               

              as
                predecessor-in-interest to Fleet Capital Corporation,

              as
                Agent and as a Lender

               

              By:
                /s/ Jason Riley

              Name:
                Jason Riley

              Title:
                Vice President

               

              Revolving
                Loan Commitment: $32,727,200

              (40.909%)

               

            


    

    


    



    
      
        
          
            	 	 	 


          

           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
          


        

      

    



    


    (Signature
      Page to Eighth Amendment to

    Amended
      and Restated Loan and Security Agreement)

     

    


    
      	 	
              WELLS
                FARGO FOOTHILL LLC,
                

              as
                Syndication Agent and Lender

               

              By:
                /s/ Yelena Kravchuk

              Name:
                Yelena Kravchuk

              Title:
                Assistant Vice President

               

              Revolving
                Loan Commitment: $21,818,400

              (27.273%)

            


    

    


    



    
      
        
          
            	 	 	 


          

           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
          


        

      

    



    


    (Signature
      Page to Eighth Amendment to

    Amended
      and Restated Loan and Security Agreement)

     

    


    
      	 	
              LASALLE
                BANK NATIONAL ASSOCIATION,
                

              as
                Documentation Agent and as a Lender

               

              By:
                /s/ Mark Mital

              Name:
                Mark Mital

              Title:
                Senior Vice President

               

              Revolving
                Loan Commitment: $18,181,600

              (22.727%)

            


    

    


    



    
      
        
          
            	 	 	 


          

           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
          


        

      

    



    


    (Signature
      Page to Eighth Amendment to

    to
      Amended and Restated Loan and Security Agreement)

     

    


    
      	 	
              UPS
                CAPITAL CORPORATION,
                as a Lender

               

              By:
                /s/ John P. Holloway

              Name:
                John P. Holloway

              Title:
                Director of Portfolio Management

               

              Revolving
                Loan Commitment: $7,272,800

              (9.091%)

            


    

    


    



    
      
        
          
            	 	 	 


          

           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
          


        

      

    



    


    (Signature
      Page to Eighth Amendment to

    Amended
      and Restated Loan and Security Agreement)

     

    


    
      	 	
              BANK
                OF AMERICA, N.A.,
                London branch, 

              as
                U.K. Agent and U.K. Lender

               

              By:
                /s/ Justin Charles Van Ast

              Name:
                Justin Charles Van Ast

              Title:
                Vice President

               

            


    

    


    



    
      
        
          
            	 	 	 


          

           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
          


        

      

    



    


    (Signature
      Page to Eighth Amendment to

    Amended
      and Restated Loan and Security Agreement)

     

    


    
      	 	
              BANK
                OF AMERICA, N.A.
                (acting through

              it
                Canada branch), as Canadian Agent and

              Canadian
                Lender

               

              By:
                /s/ Nelson Lam

              Name:
                Nelson Lam

              Title:
                Vice President

               

            


    

    


    



    
      
        
          
            	 	 	 


          

           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
          


        

      

    



    (Signature
      Page to Eighth Amendment to

    Amended
      and Restated Loan and Security Agreement)

     

    


     

    Accepted
      and Agreed to this 8th day of March, 2007.

     

    


     

    
      	
              GUARANTORS:

               

              KKTY
                HOLDING COMPANY, L.L.C.

               

              By:
                /s/ Christopher W. Anderson

              Name:
                Christopher W. Anderson

              Title:
                Authorized Manager

            
	
               

              AMERICAN
                GAGE& MACHINE CO.

               

              By:
                /s/ Amir Rosenthal

              Name:
                Amir Rosenthal

              Title:
                Secretary

            
	
               

              CONTINENTAL
                COMMERCIAL PRODUCTS, LLC

               

              By:
                /s/ Amir Rosenthal

              Name:
                Amir Rosenthal

              Title:
                Secretary

            
	
               

              PTR
                MACHINE CORP.

               

              By:
                /s/ Amir Rosenthal

              Name:
                Amir Rosenthal

              Title:
                Secretary

            
	
               

              SAVANNAH
                ENERGY SYSTEMS COMPANY

               

              By:
                /s/ Amir Rosenthal

              Name:
                Amir Rosenthal

              Title:
                Secretary

            
	
               

              WOODS
                INDUSTRIES, INC.

               

              By:
                /s/ Amir Rosenthal

              Name:
                Amir Rosenthal

              Title:
                Secretary

            


    

    



    
      
        
          
            	 	 	 


          

           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
          


        

      

    



    EXHIBIT 7.3

     

    FINANCIAL
      COVENANTS

     

    DEFINITIONS

     

    Consolidated
      EBITDA
      - for
      any period, the sum, without duplication, of the amounts for such period of
      (i)
      Consolidated Net Income, (ii) interest expense, (iii) provisions for taxes
      based
      on income, (iv) total depreciation expense, (v) total amortization expense,
      (vi)
      all unusual expenses and all other non-capitalized restructuring expenses
      (including costs and expenses attributable to employee severance obligations
      and
      facility consolidation costs) for such period to the extent not disallowed
      by
      Agent in its sole discretion, (vii) any payment of or accrual for the Management
      Fee under the Management Agreement, (viii) all other payments made to K&C
      and its Affiliates during such period for expenses incurred on behalf of Parent,
      Katy or any of their respective Subsidiaries pursuant to Kohlberg Agreements,
      (ix) any non-cash expense incurred with respect to Katy’s stock appreciation
      rights plan (“SAR”) and (x) any non-cash expense with respect to changes in
      market value of any options to purchase Katy’s Common Stock and (xi) other
      non-cash items (other than any such non-cash item to the extent that it
      represents an accrual of or reserve for cash expenditures in any future period),
      but only, in the case of clauses (ii)-(xi), to the extent deducted in the
      calculation of Consolidated Net Income less other non-cash items added in the
      calculation of Consolidated Net Income (other than any such non-cash item to
      the
      extent that it will result in the receipt of cash payments in any future
      period), all of the foregoing as determined on a consolidated basis for Katy
      and
      its Subsidiaries in conformity with GAAP; provided that there shall be
      subtracted from the sum of items (i) through (xi) above (x)
      the
      amount of any cash expenditure made within the applicable period pursuant to
      the
      SAR, to the extent that the amount of such cash expenditure was expensed or
      will
      be expensed against a prior or future period’s Consolidated Net Income and (y)
      the amount of cash expenditure incurred in connection with the reduction of
      any
      restructuring or similar reserve, unless such amount was already charged against
      Consolidated Net Income for the applicable period (for fiscal periods ending
      prior to December 31, 2006, said amount shall be deemed to be $175,000 per
      fiscal quarter); provided, further, that (a) in the event any Loan Party makes
      an acquisition of any Person or any division or any business unit permitted
      hereunder or consented to by Majority Lenders during such period, if Katy
      provides Agent and Lenders financial statements with respect to the business
      so
      acquired (which financial statements shall have been audited by one of the
“Big
      4” accounting firms or another nationally recognized accounting firm reasonably
      satisfactory to Agent or financial statements otherwise satisfactory to Agent)
      reasonably satisfactory to Majority Lenders, Consolidated EBITDA for such period
      shall be calculated on a pro forma basis, taking into account the elimination
      of
      non-recurring expenses, based on the results of such acquired Person or acquired
      assets as if such acquisition had occurred on the first day of such period,
      and
      (b) in the event any Loan Party makes a Permitted Disposition (or any other
      disposition of any Person or any division or any business unit permitted
      hereunder or consented to by the Majority Lenders) during such period,
      Consolidated EBITDA for such period shall be calculated on a pro forma basis,
      based on the results of such disposed Person or disposed assets as if such
      Permitted Disposition (or such other disposition) had occurred on the first
      day
      of such period.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Consolidated
      Fixed Charges,
      with
      respect to any period, the sum of: (i) scheduled principal payments required
      to
      be made during such period in respect to Indebtedness for Money Borrowed
      (including the principal portion of Capitalized Lease Obligations), plus (ii)
      Consolidated Interest Expense payable in cash for such period, all as determined
      for Borrowers and their Subsidiaries on a Consolidated basis and in accordance
      with GAAP. For fiscal periods ending on or prior to December 31, 2006,
      scheduled principal payments with respect to the Term Loan shall be deemed
      to be
      $375,000 per fiscal quarter.

     

    Consolidated
      Interest Expense-
      for any
      period, total interest expense of Katy and its Subsidiaries on a consolidated
      basis with respect to all outstanding Indebtedness for Money Borrowed of Katy
      and its Subsidiaries, including, without limitation, net costs under Interest
      Rate Agreements, but excluding, however, (i) any amounts referred to in the
      Fee Letter or amortization thereof, (ii) any deferred financing fees or
      amortization thereof, (iii) commissions, discounts and other fees and
      charges owed with respect to letters of credit and bankers’ acceptance
      financing, (iv) unused line charges, (v) non-cash charges included in
      interest expense other than in clauses (i) and (ii) and (vi) to the
      extent included in interest expense, costs associated with the unsuccessful
      second lien financing abandoned prior to the Closing Date. For fiscal periods
      ending on or prior to December 31, 2006, interest expense shall be deemed
      to be $950,000 per fiscal quarter.

     

    Consolidated
      Leverage Ratio,
      as at
      any date, the ratio of (a) Consolidated Total Debt as at such date minus
      contingent reimbursement obligations with respect to letters of credit or
      guaranties of letters of credit to (b) Consolidated EBITDA for the consecutive
      four fiscal quarters ending on the last day of the most recently ended fiscal
      quarter.

     

    Consolidated
      Net Income,
      for any
      period, the net income (or loss) of Katy on a Consolidated basis for such period
      taken as a single accounting period determined in conformity with GAAP; provided
      that there shall be excluded (i) the income (or loss) of any Person (other
      than
      a Subsidiary of Katy) in which any other Person (other than Katy or any of
      its
      Subsidiaries) has a joint interest, except to the extent of the amount of
      dividends or other distributions actually paid to Katy or any of its
      Subsidiaries by such Person during such period, (ii) the income (or loss) of
      any
      Person accrued prior to the date it becomes a Subsidiary of Katy or is merged
      into or consolidated with Katy or any of its Subsidiaries or that Person’s
      assets are acquired by Katy or any of its Subsidiaries, (iii) the income of
      any
      Subsidiary of Katy to the extent that the declaration or payment of dividends
      or
      similar distributions by that Subsidiary of that income is not at the time
      permitted by operation of the terms of its charter or any agreement, instrument,
      judgment, decree, order, statute, rule or governmental regulation applicable
      to
      that Subsidiary, (iv) any after-tax gains or losses attributable to Asset Sales
      or returned surplus assets of any Pension Plan, (v) any LIFO reserves of CCP
      to
      the extent such LIFO reserves decrease or increase net income of CCP, and
      (vii)(to the extent not included in clauses (i) through (v) above) any net
      extraordinary gains or net extraordinary losses.

     

    Consolidated
      Total Debt means,
      as
      at any date of determination, the aggregate stated balance sheet amount (which
      shall not include the face amount of undrawn letter of credit) of all Money
      Borrowed of Katy and its Subsidiaries on the last day of the most recently
      ended
      fiscal quarter, determined on a Consolidated basis in accordance with
      GAAP.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Fixed
      Charge Coverage Ratio,
      with
      respect to any period, the ratio of (i) Consolidated EBITDA for such period
      minus
      the sum
      of (a) any income taxes paid in cash during such period plus (b) non-financed
      Capital Expenditures during such period, to (ii) Consolidated Fixed Charges
      for
      such period, all as determined for Borrowers and their Subsidiaries on a
      Consolidated basis and in accordance with GAAP. In the event Consolidated EBITDA
      is adjusted on a pro forma basis as provided in the definition thereof as a
      result of a permitted acquisition or Permitted Disposition, Consolidated Fixed
      Charges, income taxes and Capital Expenditures shall also be appropriately
      adjusted in a manner satisfactory to Agent in its Permitted Discretion on a
      pro
      forma basis to reflect changes resulting from such transaction as if all such
      events had occurred on the first day of such period.