IN SEPTEMBER 2006 AND FOR EACH FISCAL QUARTER
THEREAFTER MEASURED AT THE END OF EACH SUCH PERIOD, AN AMOUNT EQUAL TO THE
GREATER OF (A) ZERO AND (B) THE DIFFERENCE BETWEEN (I) THE AMOUNT OF EBITDA FOR
SUCH 3 MONTH PERIOD AS SET FORTH IN BORROWERS' PROJECTIONS DELIVERED TO LENDER
IN ACCORDANCE WITH SECTION 5.3 AND APPROVED BY AGENT IN ITS PERMITTED
DISCRETION, AND (II) $5,000,000.
(III)
NOTWITHSTANDING THE FOREGOING, BORROWERS
SHALL NOT BE REQUIRED TO COMPLY WITH SECTION 6.16(A)(I) OR (II), AS APPLICABLE,
DURING THE EBITDA WAIVER PERIOD, SO LONG AS AT ALL TIMES DURING THE EBITDA
WAIVER PERIOD:
(Y)
No Default or Event of Default (other than a
Default or Event of Default arising from non-compliance with Section 6.16(a) or
(b), as applicable, for the applicable period) has occurred and is continuing;
and
(Z)
The amount of Held Cash Collateral held by
Agent in accordance with Section 6.16(c) is no less than $35,000,000.
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(B)
MINIMUM GLOBAL UNRESTRICTED CASH.
FAIL TO MAINTAIN GLOBAL UNRESTRICTED
CASH OF PARENT AND ITS SUBSIDIARIES, DETERMINED ON A CONSOLIDATED BASIS, OF NO
LESS THAN $25,000,000 AT ALL TIMES DURING THE TERM OF THIS AGREEMENT, PROVIDED,
HOWEVER, THAT BORROWERS MAY PERMIT SUCH AMOUNT TO BE REDUCED TO NO LESS THAN
$20,000,000 FOR A PERIOD OF 10 CONSECUTIVE CALENDAR DAYS DURING ANY 30-DAY
PERIOD DURING THE TERM OF THIS AGREEMENT.
(C)
MINIMUM HELD CASH COLLATERAL.
FAIL AT ALL TIMES DURING THE TERM OF THIS
AGREEMENT TO CAUSE AGENT TO HOLD HELD CASH COLLATERAL IN AN AMOUNT EQUAL TO NO
LESS THAN THE AMOUNT BY WHICH THE OBLIGATIONS EXCEED THE BORROWING BASE;
PROVIDED, HOWEVER, THAT AT ALL TIMES DURING THE CONDITIONAL WAIVER PERIOD, HELD
CASH COLLATERAL SHALL BE NO LESS THAN $20,000,000.
(D)
CAPITAL EXPENDITURES.
MAKE CAPITAL EXPENDITURES IN ANY FISCAL QUARTER IN
EXCESS OF $10,000,000.
6.17
No Transactions Prohibited Under ERISA; Unfunded
Liability.
(A)
DIRECTLY OR INDIRECTLY
(I)
ENGAGE, IN ANY PROHIBITED TRANSACTION
WHICH IS REASONABLY LIKELY TO RESULT IN A CIVIL PENALTY OR EXCISE TAX DESCRIBED
IN SECTIONS 406 OF ERISA OR 4975 OF THE IRC FOR WHICH A STATUTORY OR CLASS
EXEMPTION IS NOT AVAILABLE OR A PRIVATE EXEMPTION HAS NOT BEEN PREVIOUSLY
OBTAINED FROM THE DEPARTMENT OF LABOR;
(II)
PERMIT TO EXIST WITH RESPECT TO ANY
BENEFIT PLAN ANY ACCUMULATED FUNDING DEFICIENCY (AS DEFINED IN SECTIONS 302 OF
ERISA AND 412 OF THE IRC), WHETHER OR NOT WAIVED;
(III)
FAIL TO PAY TIMELY REQUIRED CONTRIBUTIONS OR
ANNUAL INSTALLMENTS DUE WITH RESPECT TO ANY WAIVED FUNDING DEFICIENCY TO ANY
BENEFIT PLAN;
(IV)
TERMINATE ANY BENEFIT PLAN WHERE SUCH EVENT
WOULD RESULT IN ANY LIABILITY OF BORROWER, OR ANY ERISA AFFILIATE UNDER TITLE IV
OF ERISA WHICH WAS NOT PAID IN CONNECTION WITH SUCH TERMINATION;
(V)
FAIL TO MAKE ANY REQUIRED CONTRIBUTION OR
PAYMENT TO ANY MULTIEMPLOYER PLAN;
(VI)
FAIL TO PAY ANY REQUIRED INSTALLMENT OR ANY
OTHER PAYMENT REQUIRED UNDER SECTION 412 OF THE IRC ON OR BEFORE THE DUE DATE
FOR SUCH INSTALLMENT OR OTHER PAYMENT;
(VII)
AMEND A PLAN RESULTING