Exhibit 10.5


 


OMNIBUS AMENDMENT NO. 4


 


THIS
OMNIBUS AMENDMENT NO. 4 (this “Amendment”), is dated July 27, 2009,
and relates to that certain Amended and Restated Receivables Sale and Servicing
Agreement, dated as of March 17, 2009 (as amended, supplemented or
otherwise modified prior to the date hereof, the “Sale Agreement”),
among the entities party thereto as Originators (the “Originators”),
GGRC Corp., a Delaware corporation, as Buyer (in such capacity, the “Buyer”),
and Georgia Gulf Corporation, a Delaware corporation, as Servicer (in such
capacity, the “Servicer”) and (ii) that certain Second Amended and
Restated Receivables Purchase Agreement, dated as of March 17, 2009 (as
amended, supplemented or otherwise modified prior to the date hereof, the “Purchase
Agreement” and together with the Sale Agreement, the “Agreements”
and each an “Agreement”), among GGRC Corp., as Seller (in such capacity,
the “Seller”), the “Purchasers” party thereto (collectively, the “Purchasers”)
and General Electric Capital Corporation, as administrative agent (in such
capacity, the “Administrative Agent”), and is hereby made by the
Originators, the Buyer, the Servicer, the Seller, the Purchasers and the
Administrative Agent.  Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to them
in the Sale Agreement or the Purchase Agreement, as applicable.


 


RECITALS:


 


WHEREAS,
the Originators, the Buyer and the Servicer desire to amend the Sale Agreement
on the terms and conditions set forth herein; and


 


WHEREAS,
the Seller, the Purchasers and the Administrative Agent desire to amend the
Purchase Agreement on the terms and conditions set forth herein;


 


NOW,
THEREFORE, in consideration of the foregoing premises, the parties hereto agree
as follows:


 


1.                                       Amendments to Purchase Agreement. 
Effective as of the “Amendment Effective Date” (as defined in Section 6
below), the Purchase Agreement is hereby amended as follows:


 


(a)                                  Section 2.12(a) is hereby
amended and restated in its entirety as follows:


 


“(a) If a Purchaser becomes a Non-Funding
Purchaser, then, so long as such Purchaser remains a Non-Funding Purchaser in
accordance with clause (b) below, notwithstanding any other
provisions of this Agreement, any amount paid by the Seller for the account of
such Non-Funding Purchaser under this Agreement (whether on account of Capital
Investment, Daily Yield, Fees, Breakage Costs, indemnity payments or other
amounts) will not be paid or distributed to such Non-Funding Purchaser, but
will, so long as such Purchaser is a Non-Funding Purchaser, instead be retained
by the Administrative Agent in a segregated non-interest bearing account (the “Non-Funding
Purchaser Account”), until the Termination Date and will be applied by the
Administrative Agent, to the fullest extent permitted by law, to the making of
payments from time to time in the following order of priority (and the
Non-Funding Purchaser shall have no claims against the Seller, the
Administrative Agent or any Purchaser for making such redirected payments): first
to the payment of amounts, if any, due and owing by such Non-Funding Purchaser
to the Administrative Agent under this Agreement, together with interest
thereon owing at the Index Rate; second to the payment of Daily Yield
due and payable to the Other Purchasers, ratably among them in accordance with
the amounts of such Daily Yield then due and payable to them; third to
the payment of fees then due and payable to the Other Purchasers,


 

















 


ratably among them in accordance with the amounts of such fees then due
and payable to them; fourth, if as of any Settlement Date the Capital
Investment of any Other Purchaser exceeds its Pro Rata Share (as determined
without giving effect to the proviso in the definition thereof) of the total
Capital Investments, to repay the Capital Investments of each such Other
Purchaser in the amount necessary to eliminate such excess, pro rata based on
the Capital Investments of the Other Purchasers; fifth, to make any
other mandatory reductions of Capital Investments of the Other Purchasers
required under Section 2.08, pro rata based on the Capital Investment of
such Other Purchasers; sixth to the ratable payment of other amounts
then due and payable to the Other Purchasers; and seventh to pay any
Daily Yield, Capital Investment or other amounts owing under this Agreement to
such Non-Funding Purchaser in the order of priority set forth in Section 2.08(b) hereof
or as a court of competent jurisdiction may otherwise direct; provided
that funds shall be redirected from the Non-Funding Purchaser Account to pay
amounts owed under clauses second through sixth solely after
application of other funds on deposit in the Agent Accounts and only to the
extent that such other funds are insufficient to make such payments.  Any
funds redirected from the Non-Funding Purchaser Account to make payments under
clauses second through sixth above shall not be deemed to be
payment by the Seller for purposes of determining whether a Termination Event
has occurred and shall not discharge any obligations of the Seller to make such
payment.  To the extent that any Other
Purchasers have been paid with amounts redirected from the Non-Funding
Purchaser Account, the Non-Funding Purchaser shall, from and after payment in
full of all interest, Capital Investment and other amounts owed to the Other
Purchaser, be subrogated to the rights of the Other Purchasers to the extent of
any such payments from the Non-Funding Purchaser Account under clause seventh
above.”


 


(b)                                 Schedule 8.01 is hereby amended and
restated in its entirety as “Schedule 8.01” attached hereto.


 


(c)                                  Section (a)(ii) of Annex 5.02(a) is
hereby amended to insert the following sentence at the end thereof:


 


“Notwithstanding
anything in this Purchase Agreement or any other Related
Agreement to the contrary, if the Seller requests a Capital Purchase or
notifies the Administrative Agent of a reduction in Capital Investment in
connection with the delivery of a Weekly Report in accordance with the terms
hereof, such Weekly Report shall constitute a Capital Purchase Request or a
Reduction Notice, as applicable, for all purposes hereof (including, without
limitation, for purposes of Section 3.02 hereof.”


 


(d)                                 Section 12.07(c) is hereby
amended by adding the following to the end of such section:


 


“In
addition, if any Purchaser is a Non-Funding Purchaser,
at the Seller’s request, the Administrative Agent, or a Person acceptable to
the Administrative Agent, shall have the right with the Administrative Agent’s
consent and in the Administrative Agent’s sole discretion (but shall have no
obligation) to purchase from such Non-Funding Purchaser, and such
Non-Consenting Purchaser agrees that it shall, upon the Administrative Agent’s
request, sell and assign to the Administrative Agent or such Person, all of the
Commitments and Purchaser Interests of such Non-Funding Purchaser for an amount
equal to the Capital Investment held by the Non-Funding Purchaser and all
accrued Daily Yield and Fees with respect thereto through the date of sale,
such purchase and sale to be consummated pursuant to an executed Assignment
Agreement.”


 


2

















 


2.                                       Amendments to Annex X to the Sale
Agreement and the Purchase Agreement.  Effective as
of the Amendment Effective Date, Annex X to the Sale Agreement and the Purchase
Agreement is hereby amended as follows:


 


(a)                                  The following definitions are hereby
added to Annex X to the Sale Agreement and the Purchase Agreement in the
appropriate alphabetical order:


 


“2009
Exchange Offering Memorandum” means the Amended and Restated Offering
Memorandum and Consent Solicitation Statement, in the form provided by GGC to
the Administrative Agent on July 7, 2009.


 


“2009
Exchange Transaction” means the exchange offer transaction on substantially
the terms set forth in 2009 Exchange Offering Memorandum.


 


(b)                                 The definition of “Applicable Index Rate
Margin” is hereby amended and restated in its entirety as follows:


 


“Applicable
Index Rate Margin” shall mean 3.25% per annum.


 


(c)                                  The definition of “Applicable LIBOR
Margin” is hereby amended and restated in its entirety as follows:


 


“Applicable
LIBOR Margin” shall mean 4.75% per annum.


 


(d)                                 Clause (a) of the definition of “Change
of Control” in Annex X to the Sale Agreement and the Purchase Agreement is
hereby amended by inserting “except to the extent resulting from the
consummation of the 2009 Exchange Transaction,” at the beginning thereof.


 


(e)                                  Clause (b) of the definition of “Change
of Control” in Annex X to the Sale Agreement and the Purchase Agreement is
hereby amended by inserting the following proviso at the end thereof:


 


“provided,
that none of the foregoing shall constitute a “Change of Control” to the extent
directly attributable to the reconstitution of the board of directors of the
Parent as contemplated under the terms of the 2009 Exchange Transaction;”


 


(f)                                    The definition of “Change of Control” in
Annex X to the Sale Agreement and the Purchase Agreement is hereby amended by (i) deleting
the period at the end of clause (f) and inserting a semicolon in the place
thereof, and (ii) inserting the following clause (g) at the end
thereof:


 


“(g)                           the occurrence
of a “Change of Control” (or any comparable term) under, and as defined in, the
documents governing any Exchange Securities (as defined in the Credit
Agreement) or Permitted Junior Refinancing Indebtedness (as defined in the
Credit Agreement).”


 


(g)                                 the definition of “Index Rate” in Annex X
to the Sale Agreement and the Purchase Agreement is hereby amended and restated
in its entirety as follows:


 


“Index
Rate” shall mean, for any day, a floating rate equal to:


 


(a)                                  the Applicable
Index Rate Margin


 


plus


 


3

















 


(b)                                 the higher of (x) 4.00%
and (y) the greatest of the following (determined by the Administrative
Agent):


 


(i)                                     the Prime Rate;


 


(ii)                                  the Federal Funds Rate plus 3.00% per
annum;


 


and


 


(iii)                               the sum of:


 


(a)                                  1.50% per
annum;


 


and


 


(b)(1)                   the offered rate for
deposits in United States Dollars as of such date for a three month period in
United States Dollars which appears on Reuters Screen LIBOR01 Page as of
11:00 a.m., London time, on the second full LIBOR Business Day preceding
such day; divided by (b) a number equal to 1.0 minus the
aggregate (but without duplication) of the rates (expressed as a decimal
fraction) of reserve requirements in effect on the day which is two (2) LIBOR
Business Days to such day (including basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve system or other governmental authority having jurisdiction with
respect thereto, as now and from time to time in effect) for Eurocurrency
funding (currently referred to as “Eurocurrency liabilities” in Regulation D of
such Board) which are required to be maintained by a member bank of the Federal
Reserve System;


 


provided that in no event shall the
Index Rate for any day be less than the LIBOR Rate for the Yield Period in
which such day occurs.


 


3.                                       Consent to Amendments to Credit Agreement. 
The Administrative Agent, by its signature below, hereby consents to the
execution and delivery by Parent of the Ninth Amendment to Credit Agreement
dated as of the date hereof among Parent, Royal Group, Inc., the
Guarantors party thereto, the lenders party thereto, and Bank of America,
National Association, as Domestic Administrative Agent and Bank of America,
National Association acting through its Canada branch, as Canadian
Administrative Agent (the “Ninth Amendment”).


 


4.                                       Limited Waiver. 
The Seller, the Administrative Agent and the Requisite Purchasers hereby
waive (the “Waiver”), effective solely for the Waiver Effectiveness
Period (defined in the next sentence), (i) any Termination Event that may
exist under Sections 8.01(c), 8.01(f) or 8.01(x) of the Purchase
Agreement, and (ii) any Event of Servicer Termination that may exist under
Sections 8.01(b), 8.01(e) or 8.01(i) of the Sale Agreement that
arises solely from the failure by the Parent or any Subsidiary to make the
Applicable Note Interest Payments.  “Waiver
Effectiveness Period” means the period commencing on July 15, 2009 and
ending on the first to occur of (i) the date on which the 2009 Exchange
Transaction shall have been consummated, (ii) the date of termination or
expiration of the exchange offer contemplated by the 2009 Exchange Offering
Memorandum (as the same may be amended), (iii) the date on which (x) any
of the indebtedness outstanding under the 2003 Senior Notes, the 2006 Senior
Notes or the 2006 Senior Subordinated Notes shall have been accelerated or (y) any
other exercise of remedies or other enforcement action shall have been taken
with respect to the 2003 Senior Notes, the 2006 Senior Notes or the 2006 Senior
Subordinated Notes in accordance with the terms thereof and (iv) 11:59 p.m.
on July 30, 2009.  The Waiver
granted pursuant to this Section 4 shall be limited precisely as
written, and 


 


4

















 


shall not extend
to any other Termination Event or Event of Servicer Termination under the
Purchase Agreement or the Sale Agreement, or to any Termination Event under
Sections 8.01(c), 8.01(f) or 8.01(x) of the Purchase Agreement or any
Event of Servicer Termination under Sections 8.01(b), 8.01(e) or 8.01(i) of
the Sale Agreement which may exist after the end of the Waiver Effectiveness
Period.


 


5.                                       Representations and Warranties.


 


(a)                                  As of the Amendment Effective Date,
Seller hereby represents and warrants to the Administrative Agent and the
Purchasers that (i) all of the representations and warranties of Seller in
the Related Documents are true and correct in all material respects on and as
of such date as though made to each such Person on and as of such date (other
than representations and warranties which expressly speak as of a different
date, which representations shall be made only on such date) and (ii) as
of such date, no Incipient Termination Event, Termination Event, Incipient
Servicer Termination Event or Event of Servicer Termination has occurred and is
continuing.


 


(b)                                 As of the Amendment Effective Date, each
of the Transaction Parties hereby represents and warrants to Buyer that (i) all
of the representations and warranties of such Person in the Related Documents
are true and correct in all material respects on and as of such date as though
made to each such Person on and as of such date (other than representations and
warranties which expressly speak as of a different date, which representations
shall be made only on such date) and (ii) as of such date, no Incipient
Termination Event, Termination Event, Incipient Servicer Termination Event or
Event of Servicer Termination has occurred and is continuing.


 


6.                                       Effective Dates. 
Subject to the proviso to this Section 6, the “Amendment
Effective Date” shall occur upon:


 


(a)                                  receipt by the Administrative Agent of: (i) counterparts
of this Amendment executed by each of the Persons identified on the signature pages hereto,
(ii) a fully executed copy of the Ninth Amendment;


 


(b)                                 receipt by the Administrative Agent of (i) for
the account of each Purchaser that has executed this Amendment, a fee equal to
0.25% of the aggregate amount of each such Purchaser’s Commitment, (ii) all
fees and other amounts to be paid under the fee letter, dated the date hereof,
between the Administrative Agent and the Seller and (iii) any fees and
expenses of the Administrative Agent (including reasonable attorneys’ fees of
the Administrative Agent) in connection with the Related Documents. Such fees
shall be fully earned and payable upon satisfaction of each of the other
conditions set forth in this Section 6 and shall be nonrefundable when
paid;


 


(c)                                  the consummation of the 2009 Exchange
Transaction or the consummation of such 2009 Exchange Transaction substantially
simultaneously with the effectiveness of this amendment; and


 


(d)                                 each of the conditions precedent set
forth in Section 5 of the Ninth Amendment shall be satisfied;


 


provided, however,
that (i) the consent contemplated by Section 3 hereof and (ii) the
Waiver contemplated pursuant to Section 4 (and no other provision
of this Amendment) shall become effective upon satisfaction of the conditions
set forth in Sections 6(a).


 


5

















 


7.                                       Reference to and Effect on the Related
Documents.


 


(a)                                  As applicable, on and after the Amendment
Effective Date, each reference in any Agreement to “this Agreement”, “hereunder”,
“hereof” or words of like import, and each reference in the other Related
Documents to such Agreement, shall mean and be a reference to such Agreement as
modified hereby.


 


(b)                                 Parent shall deliver to the
Administrative Agent copies of the certificate of designations and any other
documents governing the terms of any Equity Interests issued in connection with
the 2009 Exchange Transaction immediately upon the effectiveness thereof, and
agrees that its failure to do so within two days after the effectiveness
thereof shall constitute a Termination Event.


 


(c)                                  Except as specifically amended or
consented to above, all of the terms of each Agreement and all other Related
Documents remain unchanged and in full force and effect.


 


(d)                                 The execution, delivery and effectiveness
of this Amendment shall not, other than as set forth herein, operate as a
waiver of any right, power or remedy of any party under any of the Related
Documents, nor constitute an amendment or waiver, other than as set forth
herein, of any provision of any of the Related Documents, nor obligate any such
party to agree to similar consents in the future.


 


(e)                                  This Amendment shall constitute a Related
Document.


 


8.                                       Miscellaneous. 
The headings herein are for convenience of reference only and shall not
alter or otherwise affect the meaning hereof.


 


9.                                       Counterparts. 
This Amendment may be executed in any number of counterparts and by the
different parties hereto in separate counterparts, each of which when so
executed and delivered by facsimile shall be an original, but all of which
shall together constitute one and the same instrument.


 


10.                                 GOVERNING LAW.  THIS AMENDMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL
RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES).


 


11.                                 Release.


 


(a)                                  The Seller, each Transaction Party and
their respective successors, assigns and legal representatives (collectively,
the “Releasors”), releases, acquits and forever discharges each
Administrative Agent and each Purchaser (collectively, the “Purchaser
Parties”), and their respective subsidiaries, parents, affiliates,
officers, directors, employees, agents, attorneys, advisors, successors and
assigns, both present and former (collectively, the “Purchaser Party
Affiliates”), from any and all manner of losses, costs, defenses, damages,
liabilities, deficiencies, actions, causes of action, suits, debts,
controversies, damages, judgments, executions, claims, demands and
out-of-pocket expenses whatsoever, asserted or unasserted, known or unknown, foreseen
or unforeseen, in contract, tort, law or equity (generically, “Claims”),
that any Releasor has or may have against any of the Purchaser Parties and/or
the Purchaser Party Affiliates by reason of any action, failure to act, event,
statement, accusation, assertion, matter or thing whatsoever arising from or
based on facts occurring prior to the Amendment Effective Date that arises out
of or is connected to the Related Documents and the Purchases, including but
not 


 


6

















 


limited to any
Claims or defense that relates to, in whole or in part, directly or indirectly:
(i) the Purchase Agreement or any other Related Document or the
transactions contemplated thereby; (ii) the making of any Purchases under
the Related Documents; (iii) any actual or proposed use by the Seller of
the Purchases; (iv) any actions or omissions of any Purchaser Party or
Purchaser Party Affiliate in connection with the initiation or continuing
exercise of any right or remedy contained in the Related Documents at law or in
equity; (v) the making or administration of the Purchases, including
without limitation, any such claims and defenses based on fraud, mistake,
duress, usury or misrepresentation, or any other claim based on so-called “lender
liability theories”; (vi) any covenants, agreements, duties or obligations
set forth in the Related Documents; (vii) lost profits, (viii) loss
of business opportunity, (ix) increased financing costs, (x) increased
legal or other administrative fees or (xi) damages to business reputation.


 


(b)                                 The Seller and each Transaction Party, on
behalf of itself and its successors, assigns, and other legal representatives,
hereby unconditionally and irrevocably agrees that it will not sue any
Purchaser Party or Purchaser Party Affiliate on the basis of any Claim
released, remised and discharged by the Seller or such Transaction Party
pursuant to this Section 11.  If the
Seller or any Transaction Party or any of their respective successors, assigns
or other legal representatives violates the foregoing covenant, the Seller and
each Transaction Party, for itself and its successors, assigns and legal
representatives, agrees to pay, in addition to such other damages as any
Purchaser Party or Purchaser Party Affiliate may sustain as a result of such
violation, all reasonable and documented attorneys’ fees and costs incurred by
any Purchaser Party or Purchaser Party Affiliate as a result of such violation.


 


*           *           *


 


7

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective signatories thereunto duly authorized as of the date first
above written.


 


 


	
   

  	
  GEORGIA GULF CORPORATION, as Servicer and as an Originator

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joel I. Beerman

  
	
   

  	
  Name:

  	
  Joel I. Beerman

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GEORGIA GULF CHEMICALS & VINYLS, LLC, as an Originator

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joel I. Beerman

  
	
   

  	
  Name:

  	
  Joel I. Beerman

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GEORGIA GULF LAKE CHARLES, LLC, as an Originator

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joel I. Beerman

  
	
   

  	
  Name:

  	
  Joel I. Beerman

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ROYAL MOULDINGS LIMITED, as an Originator

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joel I. Beerman

  
	
   

  	
  Name:

  	
  Joel I. Beerman

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ROYAL GROUP, INC., as an Originator

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joel I. Beerman

  
	
   

  	
  Name:

  	
  Joel I. Beerman

  
	
   

  	
  Title:

  	
  Vice President

  



 

















 


	
   

  	
  ROYAL WINDOW AND DOOR PROFILES PLANT 12 INC., as an Originator

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joel I. Beerman

  
	
   

  	
  Name:

  	
  Joel I. Beerman

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ROYAL WINDOW AND DOOR PROFILES PLANT 13 INC., as an Originator

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joel I. Beerman

  
	
   

  	
  Name:

  	
  Joel I. Beerman

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ROYAL WINDOW AND DOOR PROFILES PLANT 14 INC., as an Originator

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joel I. Beerman

  
	
   

  	
  Name:

  	
  Joel I. Beerman

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ROYAL OUTDOOR PRODUCTS, INC., as an Originator

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joel I. Beerman

  
	
   

  	
  Name:

  	
  Joel I. Beerman

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PLASTIC TRENDS, INC.., as an Originator

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joel I. Beerman

  
	
   

  	
  Name:

  	
  Joel I. Beerman

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GGRC CORP., as Buyer and as Seller

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joel I. Beerman

  
	
   

  	
  Name:

  	
  Joel I. Beerman

  
	
   

  	
  Title:

  	
  Vice President

  



 

















 


	
   

  	
  GENERAL ELECTRIC CAPITAL CORPORATION, as Administrative Agent and as
  a Purchaser

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Johnson

  
	
   

  	
  Name:

  	
  David Johnson

  
	
   

  	
  Title:

  	
  Duly Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CIT BANK, as a Purchaser

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Barbara Coffin

  
	
   

  	
  Name:

  	
  Barbara Coffin

  
	
   

  	
  Title:

  	
  Assistant Vice President

  



 














 


SCHEDULE 8.01

to

PURCHASE AGREEMENT

FINANCIAL TESTS


 


A.                                   Definitions: 
Capitalized terms used herein and not otherwise defined herein shall
have the meanings attributed to such terms in Annex X to the Purchase Agreement
(or, if not defined therein, in the Credit Agreement (as in effect as of the “Ninth
Amendment Effective Date” (as defined in the Ninth Amendment thereto, dated as
of July 27, 2009)).  The following
additional terms shall have the meanings when used in this Schedule 8.01:


 


“Attributable Indebtedness”
means, on any date, (a) in respect of any Capital Lease of any Person, the
capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, (b) in respect of any
Synthetic Lease Obligation, the capitalized amount of the remaining lease
payments under the relevant lease that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a Capital Lease and (c) in respect of any Securitization
Transaction of any Person, the outstanding principal amount of such financing,
after taking into account reserve accounts and making appropriate adjustments,
determined by the Domestic Administrative Agent in its reasonable judgment.


 


“Consolidated Capital
Expenditures” means, for any period, for the Parent and its Subsidiaries on
a consolidated basis, all capital expenditures, as determined in accordance
with GAAP; provided, however, that Consolidated Capital
Expenditures shall not include expenditures made with proceeds of any
Involuntary Disposition to the extent such expenditures are used to purchase
property that is the same as or similar to the property subject to such
Involuntary Disposition.


 


“Consolidated Cash
Interest Charges” means, for any period, for the Parent and its
Subsidiaries on a consolidated basis, the excess of (a) the sum of (i) the
interest expense (including imputed interest expense under Capital Leases) for
such period, in accordance with GAAP, plus (ii) the implied interest
component of Synthetic Leases with respect to such period, plus (iii) any
interest accrued during such period in respect of Indebtedness that is required
to be capitalized rather than included in consolidated interest expense for
such period in accordance with GAAP, plus (iv) any cash payments (other
than fees and expenses paid in connection with the closing under this Agreement
and any premiums paid in connection with the redemption of the Series D
Notes and Medium Term Notes) made during such period in respect of obligations
referred to in clause (b)(ii) below that were amortized or accrued in a
previous period, minus (b) the sum of (i) to the extent included in
such consolidated interest expense for such period, non-cash expenses attributable
to the amortization or write-off of capitalized financing costs previously
paid, plus (ii) to the extent included in such consolidated interest
expense for such period, noncash amounts attributable to amortization of debt
discounts or accrued interest payable in kind for such period. For purposes of
this definition, “interest” shall include yield, discount or other similar
financing costs pursuant to any Securitization Transaction.  Notwithstanding the foregoing, for purposes
of calculating the Consolidated Interest Coverage Ratio (a) as of the
fiscal quarter ending December 31, 2006, Consolidated Cash Interest
Charges for the four fiscal quarter period ending December 31, 2006 shall
be calculated as Consolidated Cash Interest Charges for the fiscal quarter
period ending December 31, 2006 multiplied by four, (b) as of the
fiscal quarter ending March 31, 2007, Consolidated Cash Interest Charges
for the four fiscal quarter period ending March 31, 2007 shall be
calculated as Consolidated Cash Interest Charges for the two fiscal quarter
period ending March 31, 2007 multiplied by two and (c) as of the
fiscal quarter period ending June 30, 2007, Consolidated Cash Interest
Charges for the four fiscal quarter period ending June 30, 2007 shall be
calculated as Consolidated Cash Interest Charges for the three fiscal quarter
period ending June 30, 2007 multiplied by 4/3.  For purposes of 


 


1

















 


calculating
Consolidated Cash Interest Charges, the effects of the application of EITF
Issue No. 96-19 shall be disregarded.


 


“Consolidated Cash Taxes”
means, for any period, for the Parent and its Subsidiaries on a consolidated
basis, the aggregate amount of Taxes paid in cash during such period,
excluding, without duplication and to the extent included therein (a) Taxes
paid in cash during such period that are directly attributable to, without
duplication (i) any “cancellation of debt” income or other gain arising
from the cancellation of Indebtedness pursuant to the 2009 Exchange Transaction
or otherwise and (ii) any gain in respect of the modification or exchange
of debt instruments in accordance with EITF Issue No. 96-19, in an
aggregate amount for clauses (a)(i) and (a)(ii) not to exceed
$29,000,000 for all periods and (b) Taxes paid in cash during such period
attributable to income or gains arising from Non-Core Asset Dispositions in an
aggregate amount not to exceed $15,000,000 for all periods.


 


“Consolidated EBITDA”
means, for any period, for the Parent and its Subsidiaries on a consolidated
basis, the sum of (a) Consolidated Net Income for such period, plus
(b) to the extent deducted in determining such Consolidated Net Income for
such period, the aggregate amount, without duplication, of (i) interest
expense, (ii) income tax expense, (iii) depreciation and amortization
(including without limitation amortization of debt issuance costs), (iv) non-cash
charges which do not represent a cash item in such period or any future period,
(v) for the fiscal quarters ended September 30, 2008 and December 31,
2008 only, cash restructuring charges and expenses in an aggregate amount not
to exceed $12,000,000, (vi) for the fiscal quarter ended March 31,
2009 only, cash restructuring charges and expenses in an aggregate amount not
to exceed $8,100,000, (vii) for the fiscal quarters ended June 30,
2009, September 30, 2009, December 31, 2009, March 31, 2010, and
June 30, 2010 only, cash restructuring charges and expenses in an
aggregate amount not to exceed $24,200,000, (viii) the fees and expenses
of (x) Alvarez & Marsal Holdings, LLC incurred since April 1,
2009 in respect of services relating to the Parent’s financial restructuring
and operational review and performance improvement initiatives) and (y) the
financial advisory firm retained by the Administrative Agents (as defined in
the Credit Agreement) pursuant to Section 7.10(e) of the Credit
Agreement, (ix) the fees and expenses incurred in connection with
obtaining the real estate appraisals pursuant to Section 7.10(d) of
the Credit Agreement and the evaluations and appraisals of accounts receivable
and inventory pursuant to Section 7.20 of the Credit Agreement, (x) legal
and financial advisory fees and expenses of third party professionals (other
than Alvarez & Marsal Holdings, LLC and the financial advisory firm
retained by the Administrative Agents) incurred in connection with the
negotiation, documentation and closing of the 2009 Exchange Transaction, (xi)
legal, financial advisory and other fees and expenses (other than of Alvarez &
Marsal Holdings, LLC and the financial advisory firm retained by the
Administrative Agents) incurred since April 1, 2009 in connection with the
negotiation, documentation and closing of the sixth, seventh, eighth, and ninth
amendments to the Credit Agreement and (xii) fees and expenses of third party
professionals (other than Alvarez & Marsal Holdings, LLC and the
financial advisory firm retained by the Administrative Agents) incurred since April 1,
2009 in respect of financial contingency planning, in an aggregate amount for
this clause (xii) not to exceed $3,400,000. 
For purposes of this definition, “interest” shall exclude yield,
discount or other similar financing costs pursuant to any Securitization
Transaction.


 


“Consolidated Fixed
Charge Coverage Ratio” means, as of any date of determination, the ratio of
(a) the sum of (i) Consolidated EBITDA minus (ii) Consolidated
Capital Expenditures (other than (x) Permitted Additional Consolidated
Capital Expenditures and, without duplication, (y) Consolidated Capital
Expenditures to the extent financed with Indebtedness (other than Loans or
Letters of Credit)) minus (iii) Consolidated Cash Taxes to (b) Consolidated
Fixed Charges, in each case for the period of the four prior fiscal quarters
most recently ended.


 


“Consolidated Fixed
Charges” means, for any period, for the Parent and its Subsidiaries on a
consolidated basis, the sum, without duplication, of (a) Consolidated Cash
Interest Charges for such 


 


2

















 


period
(excluding, to the extent included therein, yield, discount or other financing
costs pursuant to any Securitization Transaction) plus (b) the
aggregate amount of scheduled principal payments (whether or not made) during
such period in respect of Indebtedness (including, without limitation, the
Attributable Indebtedness of Capital Leases) of the Parent and its Subsidiaries
(other than Attributable Indebtedness of Securitization Transactions permitted
under Section 8.03(i) of the Credit Agreement) plus (c) the
aggregate amount of Restricted Payments made by the Parent and its Subsidiaries
during such period.


 


“Consolidated Funded
Indebtedness” means Funded Indebtedness of the Parent and its Subsidiaries
on a consolidated basis determined in accordance with GAAP.  For purposes of determining Consolidated
Funded Indebtedness, any adjustments to the amount at which any Indebtedness is
recorded in the consolidated financial statements of the Parent and its
Subsidiaries resulting from the application of EITF Issue No. 96-19 shall
be disregarded.


 


“Consolidated Interest
Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated
EBITDA for the period of the four prior fiscal quarters ending on such date to (b) the
sum of (i) Consolidated Cash Interest Charges for such period minus
(ii) to the extent included in Consolidated Cash Interest Charges for such
period, yield, discount or other financing cost pursuant to any Securitization
Transaction, each as determined on a consolidated basis in accordance with
GAAP.


 


“Consolidated Leverage
Ratio” means, as of any date of determination, the ratio of (a) the
sum of (i) Consolidated Funded Indebtedness as of such date minus (ii) in
each case to the extent included in Consolidated Funded Indebtedness as of such
date, (x) the Attributable Indebtedness of Securitization Transactions and
(y) Permitted Junior Refinancing Indebtedness to  (b) Consolidated EBITDA for the period of the four
fiscal quarters most recently ended.


 


“Consolidated Net Income”
means, for any period, for the Parent and its Subsidiaries on a consolidated
basis, the net income of the Parent and its Subsidiaries for that period
(exclusive of, without duplication, (x) the effect of (1) any
extraordinary gain, (2) any gain or loss (whether or not classified as
extraordinary) in respect of the modification or exchange of debt instruments
in accordance with EITF Issue No. 96-19 or otherwise (including, for the
avoidance of doubt with respect to the fiscal quarter period ending March 31,
2009, the “Gain on substantial modification of debt” in the amount of $121.033
million), (3) any “cancellation of debt” income or other gain (in each
case whether or not classified as extraordinary) arising from the cancellation
of Indebtedness pursuant to the 2009 Exchange Transaction or otherwise, (4) any
extraordinary non-cash loss, (5) for any fiscal quarter period ending
prior to the Closing Date, any extraordinary loss paid in cash during such
period and (y) the income of any Person (other than the Parent) in which
any other Person (other than the Parent or any Subsidiary or any director
holding qualifying shares in compliance with applicable law) owns an Equity
Interest, except to the extent of the amount of dividends or other
distributions actually paid to the Parent or any Subsidiary during such
period), determined on a consolidated basis in accordance with GAAP for such
period and (6) any gain or loss arising from any Non-Core Asset
Disposition.


 


“Consolidated Senior
Secured Indebtedness” means Consolidated Funded Indebtedness other than any
such Consolidated Funded Indebtedness that is (i) Attributable
Indebtedness of Securitization Transactions, (ii) subordinated to the
Obligations on Acceptable Subordination Terms or (iii) not secured by a
Lien on the assets of any Loan Party or any Subsidiary of any Loan Party.


 


“Consolidated Senior
Secured Leverage Ratio” means, as of any date of determination, the ratio
of (a) Consolidated Senior Secured Indebtedness as of such date to  (b) Consolidated EBITDA for the
period of the four fiscal quarters most recently ended.


 


3

















 


“EBITDA Cure Issuance”
has the meaning specified in the definition of “EBITDA Cure Proceeds”.


 


“EBITDA Cure Issuance
Expiration Date” means the earlier of (x) the date on which the
aggregate amount of EBITDA Cure Proceeds that shall have been applied to
increase Consolidated EBITDA is equal to $10,000,000 and (y) the date that
is the fifteenth day after the date on which the Compliance Certificate for the
fiscal quarter ending March 31, 2010 is required to be delivered (or, if
earlier, the date that is the fifteenth day after the date on which such
Compliance Certificate is actually delivered).


 


“EBITDA Cure Proceeds”
means, with respect to any exercise of the Parent’s rights under Section C(1),
the Net Cash Proceeds received by the Domestic Loan Parties pursuant to an
issuance of Permitted Cure Securities (an “EBITDA Cure Issuance”).  “EBITDA Cure Proceeds” shall not include any
cash proceeds which exceed the amount permitted to be added to Consolidated
EBITDA pursuant to the limitations set forth in Section C(1) and
Section C(4).


 


“Equity Interests”
means, with respect to any Person, all of the shares of capital stock of (or
other ownership or profit interests in) such Person, all of the warrants,
options or other rights for the purchase or acquisition from such Person of
shares of capital stock of (or other ownership or profit interests in) such
Person, all of the securities convertible into or exchangeable for shares of
capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are outstanding on any date of
determination.


 


“Funded Indebtedness”
means, as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:


 


(a)                                  all obligations for borrowed money,
whether current or long-term (including the Obligations) and all obligations of
such Person evidenced by bonds, debentures, notes, loan agreements or other
similar instruments;


 


(b)                                 all purchase money Indebtedness;


 


(c)                                  the principal portion of all obligations
under conditional sale or other title retention agreements relating to property
purchased by the Parent or any Subsidiary (other than customary reservations or
retentions of title under agreements with suppliers entered into in the
ordinary course of business);


 


(d)                                 all obligations arising under letters of
credit (including standby and commercial), bankers’ acceptances, bank
guaranties and similar instruments (other than obligations arising under surety
bonds);


 


(e)                                  all obligations in respect of the
deferred purchase price of property or services (other than trade accounts
payable in the ordinary course of business and, in each case, not past due for
more than 60 days after the date on which such trade account payable was
created);


 


(f)                                    the Attributable Indebtedness of Capital
Leases and Synthetic Leases;


 


(g)                                 the Attributable Indebtedness of
Securitization Transactions;


 


4

















 


(h)                                 all obligations of such Person to
purchase, redeem, retire, defease or otherwise make any payment in respect of
any Equity Interests in such Person or any other Person, valued, in the case of
a redeemable preferred interest, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends;


 


(i)                                     all Funded Indebtedness of others secured
by (or for which the holder of such Funded Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed;


 


(j)                                     all Guarantees with respect to Funded
Indebtedness of the types specified in clauses (a) through (i) above
of another Person; and


 


(k)                                  all Funded Indebtedness of the types
referred to in clauses (a) through (j) above of any partnership or
joint venture (other than a joint venture that is itself a corporation or
limited liability company) in which such Person is a general partner or joint
venturer, except to the extent that Funded Indebtedness is expressly made
non-recourse to such Person.


 


For purposes hereof, (a) the
amount of any direct obligation arising under letters of credit (including
standby and commercial), bankers’ acceptances, bank guaranties, surety bonds
and similar instruments shall be the maximum remaining amount available to be
drawn thereunder and (b) the Indebtedness under the Medium Term Notes
shall not be considered Funded Indebtedness so long as the Parent maintains a
reserve of cash in an amount sufficient to repay the entire outstanding amount
of Medium Term Notes within 40 days of the Closing Date (as defined in the
Credit Agreement).


 


“Gallman Bond Repayment”
means the payment made to repay the entire principal amount of the industrial
development bond Indebtedness secured by the Gallman Property, in an aggregate
amount not to exceed $17,000,000.


 


“Indebtedness” means,
solely for purposes of this Schedule 8.01 and the definitions herein contained,
as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:  (a) all Funded
Indebtedness; (b) net obligations of such Person under any Swap Contract; (c) all
Guarantees of such Person with respect to outstanding Indebtedness of the types
specified in clauses (a) and (b) above; and (d) all Indebtedness
of the types referred to in clauses (a) through (c) above of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which such Person is a general
partner or joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person.  The amount
of any net obligation under any Swap Contract on any date shall be deemed to be
the Swap Termination Value thereof as of such date.


 


“Lien” means, solely
for purposes of this Schedule 8.01 and the definitions herein contained,
any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or
other security interest or preferential arrangement in the nature of a security
interest of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).


 


“Medium Term Notes”
means those certain notes of the Canadian Borrower issued pursuant to the
Medium Term Notes Indenture.


 


5

















 


“Other Cure Issuance”
means an issuance or incurrence of Permitted Junior Refinancing Indebtedness by
any Domestic Loan Party pursuant to an exercise by GGC of its rights under Section D
below.


 


“Permitted Additional
Consolidated Capital Expenditures” shall have the meaning specified in the
Credit Agreement.


 


“Permitted Cure
Securities” means (x) Equity Interests (other than Disqualified Equity
Interests) of the Parent and (y) Permitted Junior Refinancing
Indebtedness.


 


“Permitted Junior
Refinancing Indebtedness”  means
Indebtedness of the Parent or any other Domestic Loan Party that (i) is
unsecured, (ii) is subordinated to the Obligations on Acceptable
Subordination Terms, (iii) does not provide for the payment of cash
interest, (iv) bears interest at an effective interest rate (after giving
effect to any original issue discount) that is not in excess of 15.0% per
annum, (v) has a maturity date not earlier than October 1, 2015 and
does not require any mandatory principal payments prior to such date (other than
upon a change of control, but then only subject to prior payment in full of the
Obligations) and (vi) contains no financial maintenance covenants or
restrictions on the incurrence of Indebtedness or Liens (it being understood
that an “equal and ratable” or like provision shall be deemed to be a
restriction on the incurrence of Liens).


 


“Person” means any
natural person, corporation, limited liability company, trust, joint venture,
association, company, partnership, governmental authority or other entity.


 


“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other
property) with respect to any Equity Interests of the Parent or any Subsidiary,
or any payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such Equity
Interests, or on account of any return of capital to the Parent’s stockholders,
partners or members (or the equivalent Person thereof), or any setting apart of
funds or property for any of the foregoing.


 


“Series D Notes”
means those certain 7.10% senior unsecured notes, Series D, of the
Canadian Borrower due November 14, 2007 issued pursuant to the Series D
Note Purchase Agreement.


 


“Subsidiary” of a
Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having
such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled,
directly, or indirectly through one or more intermediaries, or both, by such
Person.  Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a
Subsidiary or Subsidiaries of the Parent.


 


“2009 Exchange
Transaction” means the exchange offer transaction on substantially the
terms set forth in the 2009 Exchange Offering Memorandum.


 


B.                                     Financial Tests: The occurrence of any of the following
shall constitute a Termination Event under the Purchase Agreement:


 


1.                                       Consolidated Interest Coverage Ratio: The Consolidated Interest Coverage
ratio as of the end of any fiscal quarter of the Parent shall be less than the
ratio set forth opposite such fiscal quarter below:


 


6

















 




	
  Fiscal Quarter Ending

  	
   

  	
  Consolidated Interest

  Coverage Ratio

  	
   

  
	
  June 30,
  2009

  	
   

  	
  1.00:1.0

  	
   

  
	
  September 30,
  2009

  	
   

  	
  2.00:1.0

  	
   

  
	
  December 31,
  2009

  	
   

  	
  1.65:1.0

  	
   

  
	
  March 31,
  2010

  	
   

  	
  1.50:1.0

  	
   

  
	
  June 30,
  2010

  	
   

  	
  1.65:1.0

  	
   

  
	
  September 30,
  2010

  	
   

  	
  1.70:1.0

  	
   

  
	
  December 31,
  2010

  	
   

  	
  1.75:1.0

  	
   

  
	
  March 31,
  2011

  	
   

  	
  1.85:1.0

  	
   

  
	
  June 30,
  2011

  	
   

  	
  1.90:1.0

  	
   

  
	
  September 30,
  2011

  	
   

  	
  2.00:1.0

  	
   

  
	
  December 31,
  2011 and thereafter

  	
   

  	
  3.00:1.0

  	
   

  






 


2.                                       Consolidated Leverage Ratio. 
The  Consolidated Leverage Ratio as of the end of any fiscal
quarter of the Parent shall be greater than the ratio set forth opposite such
fiscal quarter below:


 




	
  Fiscal Quarter Ending

  	
   

  	
  Consolidated Leverage Ratio

  	
   

  
	
  June 30,
  2009

  	
   

  	
  10.30:1.0

  	
   

  
	
  September 30,
  2009

  	
   

  	
  4.80:1.0

  	
   

  
	
  December 31,
  2009

  	
   

  	
  5.55:1.0

  	
   

  
	
  March 31,
  2010

  	
   

  	
  6.45:1.0

  	
   

  
	
  June 30,
  2010

  	
   

  	
  5.55:1.0

  	
   

  
	
  September 30,
  2010

  	
   

  	
  5.10:1.0

  	
   

  
	
  December 31,
  2010

  	
   

  	
  4.75:1.0

  	
   

  
	
  March 31,
  2011

  	
   

  	
  5.15:1.0

  	
   

  
	
  June 30,
  2011

  	
   

  	
  4.85:1.0

  	
   

  
	
  September 30,
  2011

  	
   

  	
  4.60:1.0

  	
   

  
	
  December 31,
  2011 and thereafter

  	
   

  	
  3.50:1.0

  	
   

  






 


3.                                       Consolidated Fixed Charge Coverage Ratio. 
The Consolidated Fixed Charge
Coverage Ratio as of the end of any fiscal quarter of the Parent shall be less than the ratio set forth opposite such fiscal
quarter below:


 




	
  Fiscal Quarter Ending

  	
   

  	
  Consolidated Fixed Charge

  Coverage Ratio

  	
   

  
	
  September 30,
  2009

  	
   

  	
  1.20:1.0

  	
   

  
	
  December 31,
  2009

  	
   

  	
  1.10:1.0

  	
   

  
	
  March 31,
  2010

  	
   

  	
  0.90:1.0

  	
   

  
	
  June 30,
  2010

  	
   

  	
  1.00:1.0

  	
   

  
	
  September 30,
  2010

  	
   

  	
  1.00:1.0

  	
   

  
	
  December 31,
  2010

  	
   

  	
  1.00:1.0

  	
   

  
	
  March 31,
  2011

  	
   

  	
  1.05:1.0

  	
   

  
	
  June 30,
  2011

  	
   

  	
  1.05:1.0

  	
   

  
	
  September 30,
  2011

  	
   

  	
  1.05:1.0

  	
   

  
	
  December 31,
  2011 and thereafter

  	
   

  	
  2.00:1.0

  	
   

  






 


7

















 


4.                                       Consolidated Senior Secured Leverage
Ratio.  The Consolidated Senior Secured Leverage Ratio as of the end of
any fiscal quarter of the Parent shall be greater than the ratio set forth
opposite such fiscal quarter below:


 




	
  Fiscal Quarter Ending

  	
   

  	
  Consolidated Senior Secured

  Leverage Ratio

  	
   

  
	
  September 30,
  2009

  	
   

  	
  4.50:1.0

  	
   

  
	
  December 31,
  2009

  	
   

  	
  5.20:1.0

  	
   

  
	
  March 31,
  2010

  	
   

  	
  6.10:1.0

  	
   

  
	
  June 30,
  2010

  	
   

  	
  5.20:1.0

  	
   

  
	
  September 30,
  2010

  	
   

  	
  4.75:1.0

  	
   

  
	
  December 31,
  2010

  	
   

  	
  4.45:1.0

  	
   

  
	
  March 31,
  2011

  	
   

  	
  4.80:1.0

  	
   

  
	
  June 30,
  2011

  	
   

  	
  4.55:1.0

  	
   

  
	
  September 30,
  2011

  	
   

  	
  4.30:1.0

  	
   

  
	
  December 31,
  2011 and thereafter

  	
   

  	
  2.50:1.0

  	
   

  






 


5.                                       Pro Forma Impact of 2009 Exchange
Transaction and Gallman Bond Repayment.  The parties
hereto agree that, solely for purposes of determining compliance with the
financial tests set forth in Sections B(1) and B(3) of
this Schedule 8.01 as of the end of the fiscal quarters ending September 30,
2009, December 31, 2009 and March 31, 2010, Consolidated Cash
Interest Charges and Consolidated Fixed Charges shall be calculated giving pro
forma effect to (x) the 2009 Exchange Transaction as if it had occurred on
October 1, 2008 and (y) the Gallman Bond Repayment as if it had
occurred on June 30, 2008.


 


C.                                     EBITDA Cure Rights


 


1.                                       In the event of any Termination Event
resulting from a failure to comply with any test set forth in the above Section B
with respect to the fiscal quarter ended September 30, 2009, the fiscal
quarter ended December 31, 2009 or the fiscal quarter ended March 31,
2010, and until the fifteenth day after the date on which the Parent provides
the Administrative Agent notice that it intends to exercise its right to engage
in an EBITDA Cure Issuance under this Section C with respect to any
such Termination Event (but only if such notice is provided on or before the
date on which the financial statements for such fiscal quarter are required to
be delivered under Annex 5.02(a) (without regard to any cure
periods set forth in Section 8.01 with respect to such fiscal quarter)
or, if earlier, the date on which such financial statements are actually
delivered), subject to Sections C(3) and C(4) below,
the Parent may engage in an EBITDA Cure Issuance and apply the amount of the
EBITDA Cure Proceeds thereof to increase Consolidated EBITDA with respect to
such fiscal quarter; provided that such EBITDA Cure Proceeds (i) are
actually received by the Parent or any other Domestic Loan Party no later than
the fifteenth day following the earlier of (x) the date on which the
financial statements for such fiscal quarter are required to be delivered under
Annex 5.02(a) (without regard to any cure periods set forth in Section 8.01
with respect to such fiscal quarter) and (y) the date on which such
financial statements are actually delivered and (ii) do not exceed the
aggregate amount necessary to cure such Termination Event under the above Section B
for such fiscal quarter.  The parties
hereby acknowledge that this Section C shall not be relied on for
any purpose other than recalculating financial ratios for purposes of
determining compliance with the above Sections B(1), B(2), B(3) and
B(4), and shall not result in any adjustment to Consolidated EBITDA or
any other amounts, other than the amount of Consolidated EBITDA referred to in
the immediately preceding sentence.


 


8

















 


2.                                       If, after giving effect to the foregoing
recalculations, the Loan Parties and their Subsidiaries shall be in compliance
with the tests set forth in the above Sections B(1), B(2), B(3) and
B(4), the Loan Parties and their Subsidiaries shall be deemed to have
satisfied the requirements of such tests as of the relevant determination date
with the same effect as if there had been no failure to comply therewith at
such date, and the applicable breach or default with respect to such tests that
had occurred shall be deemed to be cured effective as of such date for all
purposes of this Purchase Agreement and the other Related Documents.


 


3.                                       With respect to the fiscal quarters ending
September 30, 2009, December 31, 2009 and March 31, 2010, there
shall be at least one fiscal quarter in which the right to engage in an EBITDA
Cure Issuance set forth in the above Section C(1) is not
exercised.


 


4.                                       Consolidated EBITDA may not be increased
by more than $10,000,000 in aggregate for all fiscal quarters as a result of
the exercise of the right to engage in an EBITDA Cure Issuance set forth in the
above Section C(1).


 


5.                                       The Administrative Agent and the
Purchasers agree that from the date of delivery of the notice referred to in
(and delivered in accordance with) the above Section C(1) until
the date that is fifteen days thereafter, neither the Administrative Agent nor
the Purchasers shall exercise any rights or remedies with respect to any Termination
Event addressed in such notice.


 


D.                                    Other Cure Rights.


 


1.                                       In the event of any Termination Event
resulting from a failure to comply with any test set forth in the above Section B
with respect to any fiscal quarter and so long as the EBITDA Cure Issuance
Expiration Date has occurred (or shall occur simultaneously with the applicable
Other Cure Issuance), and until the fifteenth day after the date on which the
Parent provides the Administrative Agent notice that it intends to exercise its
right to engage in an Other Cure Issuance under this Section D(1) with
respect to any such Termination Event (but only if such notice is provided on
or before the date on which the financial statements for such fiscal quarter
are required to be delivered under Annex 5.02(a) (without regard to
any cure periods set forth in Section 8.01 with respect to such
fiscal quarter) or, if earlier, the date on which such financial statements are
actually delivered), the Parent may engage in an Other Cure Issuance.  If no later than the fifteenth day following
the earlier of (x) the date on which the financial statements for such
fiscal quarter are required to be delivered under Annex 5.02(a) (without
regard to any cure periods set forth in Section 8.01 with respect
to such fiscal quarter) and (y) the date on which such financial
statements are actually delivered, the Parent shall have applied an amount
equal to 100% of the Net Cash Proceeds of the Permitted Junior Refinancing
Indebtedness issued or incurred pursuant to such Other Cure Issuance to prepay
or cash collateralize the Term Loan, the Revolving Loans, the Bankers’
Acceptance Advances, the Canadian Swing Line Loans and the L/C Obligations
(each as defined in the Credit Agreement) in accordance with the proviso to Section 8.03(r) of
the Credit Agreement, then:


 


(i)                                     solely for purposes of recalculating the
financial ratios for purposes of determining compliance with Sections B(1) and
B(3) above, Consolidated Cash Interest Charges and Consolidated
Fixed Charges shall be determined on a pro forma basis assuming that such Other
Cure Issuance and the related prepayments had occurred on the first day of the
four consecutive fiscal quarter period most recently ended prior to the date on
which such Other Cure Issuance actually occurred; and


 


(ii)                                  solely for purposes of recalculating the
financial ratios for purposes of determining compliance with Sections B(2) and
B(4) above, Consolidated Funded Indebtedness and Consolidated
Senior Secured Indebtedness shall be determined on a pro forma basis 


 


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assuming that such Other Cure Issuance and the related
prepayments had occurred on the last day of the fiscal quarter most recently
ended prior to the date on which such Other Cure Issuance actually occurred.


 


(b)                                 The parties hereby acknowledge that this Section D
shall not be relied on for any purpose other than recalculating financial
ratios for purposes of determining compliance with the above Sections B(1),
B(2), B(3) and B(4), and shall not result in any
adjustment to Consolidated Cash Interest Charges, Consolidated Fixed Charges,
Consolidated Funded Indebtedness, Consolidated Senior Secured Indebtedness or
any other amounts, other than as set forth in Sections D(1)(i) and D(1)(ii).


 


(c)                                  If, after giving effect to the foregoing
recalculations, the Parent shall be in compliance with the tests set forth in
the above Sections B(1), B(2), B(3) and B(4),
the Parent shall be deemed to have satisfied the requirements of such tests as
of the relevant determination date with the same effect as if there had been no
failure to comply therewith at such date, and the applicable breach or default
with respect to such tests that had occurred shall be deemed to be cured
effective as of such date for all purposes of this Agreement and the other
Related Documents.


 


(d)                                 The Administrative Agent and the
Purchasers agree that from the date of delivery of the notice referred to in
(and delivered in accordance with) the above Section D(1) until
the date that is fifteen days thereafter, neither the Administrative Agent nor
the Purchasers shall exercise any rights or remedies with respect to any
Termination Event addressed in such notice.


 


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