AND SHALL NOT
PERMIT ANY OF ITS SUBSIDIARIES TO, ENTER INTO OR BE A PARTY TO ANY ARRANGEMENT
FOR THE PURCHASE OF MATERIALS, SUPPLIES, OTHER PROPERTY OR SERVICES IF SUCH
ARRANGEMENT BY ITS EXPRESS TERMS REQUIRES THAT PAYMENT BE MADE BY THE BORROWER
OR SUCH SUBSIDIARY REGARDLESS OF WHETHER SUCH MATERIALS, SUPPLIES, OTHER
PROPERTY OR SERVICES ARE DELIVERED OR FURNISHED TO IT; PROVIDED, HOWEVER, THE
BORROWER MAY, AND MAY PERMIT ITS SUBSIDIARIES TO, ENTER INTO SUCH ARRANGEMENTS
WHICH ARE INCIDENTAL TO ITS BUSINESS AND NOT ENTERED INTO FOR SPECULATION.
(Q)
USE OF PROCEEDS.
THE BORROWER SHALL NOT AND SHALL NOT PERMIT ANY
OF THE ITS SUBSIDIARIES TO, DIRECTLY OR INDIRECTLY USE OR APPLY ANY OF THE
PROCEEDS OF ANY LOANS IN A MANNER INCONSISTENT WITH THE PROVISIONS OF SECTION
2.21.
(R)
CERTAIN COLLATERAL MATTERS.
NOTWITHSTANDING ANYTHING SET FORTH
IN THIS SECTION 6.2, NO LOAN PARTY SHALL DISPOSE OF ANY COLLATERAL (OTHER THAN
IN A PERMITTED DISPOSITION DESCRIBED IN CLAUSE (C) OF THE DEFINITION OF
PERMITTED DISPOSITION) OR SHALL CONSUMMATE ANY TRANSACTION OTHERWISE NOT
PROHIBITED BY THIS SECTION 6.2, IF SUCH DISPOSITION OR TRANSACTION WOULD RESULT
IN ANY MODIFICATION OF THE EXISTENCE, PERFECTION OR PRIORITY OF ANY LIEN ON
COLLATERAL IN FAVOR OF THE ADMINISTRATIVE AGENT, FOR THE BENEFIT OF THE SECURED
PARTIES (AS SET FORTH IN SECTION 6.1(P)), IN ANY MANNER ADVERSE TO THE INTERESTS
OF THE SECURED PARTIES.
ANY TRANSACTION THAT WOULD OTHERWISE BE PERMITTED UNDER
THIS SECTION 6.2 BUT FOR THE IMMEDIATELY PRECEDING SENTENCE, SHALL BE PERMITTED
SO LONG AS, PRIOR TO THE CONSUMMATION OF SUCH DISPOSITION OR TRANSACTION, THE
LOAN PARTIES (AND ANY OTHER PERSON RECEIVING SUCH COLLATERAL) PERFORM ANY AND
ALL STEPS REASONABLY REQUESTED BY THE ADMINISTRATIVE AGENT TO PERFECT, MAINTAIN
AND PROTECT THE ADMINISTRATIVE AGENT'S SECURITY INTERESTS IN AND LIENS ON AND
AGAINST THE COLLATERAL GRANTED OR PURPORTED TO BE GRANTED BY THE COLLATERAL
DOCUMENTS, AS WELL AS THE PRIORITY OF SUCH SECURITY INTERESTS AND LIENS, OR TO
ENABLE THE ADMINISTRATIVE AGENT TO EXERCISE ITS RIGHTS AND REMEDIES HEREUNDER
WITH RESPECT TO ANY COLLATERAL.
SECTION 6.3.
FINANCIAL COVENANTS.
THE BORROWER COVENANTS AND AGREES THAT SO
LONG AS THE LENDERS SHALL HAVE ANY COMMITMENT HEREUNDER, ANY LETTER OF CREDIT
SHALL REMAIN OUTSTANDING, OR ANY OTHER OBLIGATION (OTHER THAN CONTINGENT
OBLIGATIONS HEREUNDER FOR WHICH NO CLAIM HAS BEEN, OR IS REASONABLY EXPECTED TO
BE, MADE) SHALL REMAIN OUTSTANDING:
(A)
MAXIMUM TOTAL LEVERAGE. THE BORROWER AND ITS CONSOLIDATED
SUBSIDIARIES SHALL NOT PERMIT THE RATIO (THE "TOTAL LEVERAGE RATIO") OF (I) THE
AGGREGATE UNPAID PRINCIPAL AMOUNT OF TOTAL FUNDED DEBT AS OF THE LAST DAY OF ANY
FISCAL QUARTER ENDING DURING THE PERIODS DESCRIBED BELOW TO (II) ADJUSTED
CONSOLIDATED EBITDA FOR THE FOUR (4) CONSECUTIVE FISCAL QUARTER PERIOD ENDING AS
OF SUCH DATE, TO EXCEED THE CORRESPONDING RATIO SET FORTH BELOW OPPOSITE SUCH
PERIOD:
Period
Ratio
Closing Date through and including September 30, 2008
6.00 to 1.00
October 1, 2008 through and including September 30, 2009
5.50 to 1.00
October 1, 2009 and thereafter
5.00 to 1.00
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