ANY
PRINCIPAL OF, PREMIUM, IF ANY, INTEREST OR OTHER AMOUNT PAYABLE IN RESPECT OF
THE 2003 SENIOR SECURED DEBT, THE 2002 SENIOR DEBT, THE MEZZANINE DEBT, THE
FEBRUARY 2003 SENIOR SUBORDINATED DEBT, THE SENIOR SUBORDINATED DEBT AND ANY
OTHER SUBORDINATED DEBT, OTHER THAN INTERCOMPANY INDEBTEDNESS REFLECTING AMOUNTS
OWING TO THE CREDIT PARTIES; PROVIDED, THAT THE FOREGOING RESTRICTIONS SHALL NOT
APPLY TO ACTION TAKEN BY ANY CREDIT PARTY WITH THE CONSENT OF THE REQUIRED
LENDERS.
5.19.
SPECIAL PURPOSE VEHICLE.
THE RECEIVABLES SUBSIDIARY SHALL NOT
ENGAGE IN ANY BUSINESS ACTIVITIES AND SHALL HAVE NO SIGNIFICANT ASSETS OR
LIABILITIES OTHER THAN IN CONNECTION WITH THE PERMITTED RECEIVABLES FINANCING;
PROVIDED, THAT THE RECEIVABLES SELLERS SHALL BE PERMITTED TO TRANSFER
RECEIVABLES PURCHASE AGREEMENT ASSETS TO THE RECEIVABLES SUBSIDIARY FROM TIME TO
TIME IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.7(C), AND IN CONNECTION
THEREWITH MAY MAKE INVESTMENTS CONSISTENT WITH THE PROVISIONS OF SECTION 5.3.
IN ADDITION, INTERCOMPANY LOANS MAY
54
BE MADE BY THE RECEIVABLES SELLERS AS A RESULT OF THE TRANSFER OF THEIR
RECEIVABLE PURCHASE AGREEMENT ASSETS TO THE RECEIVABLES SUBSIDIARY.
SECTION 6.
FINANCIAL COVENANTS/REPORTING
Borrowers covenant and agree that from and after the date hereof until the
Termination Date, Borrowers shall perform and comply with, and shall cause each
of the other Credit Parties to perform and comply with, all covenants in this
Section 6 applicable to such Person.
6.1.
FINANCIAL COVENANT.
(A)
MINIMUM EBITDA.
HOLDINGS AND ITS SUBSIDIARIES ON A CONSOLIDATED
BASIS SHALL HAVE, AT THE END OF EACH FISCAL QUARTER, EBITDA, ADJUSTED TO REFLECT
RESTRUCTURING CHARGES, NON-CASH NON-RECURRING CHARGES AND OTHER ADJUSTMENTS, IF
ANY, ALL AS SET FORTH IN SECTION 6.1(A) OF SCHEDULE 1 TO ANNEX F FOR THE
12-FISCAL MONTH PERIOD THEN ENDED OF NOT LESS THAN $160,000,000.
IN THE EVENT
THAT HOLDINGS AND ITS SUBSIDIARIES ARE NOT IN COMPLIANCE WITH THIS SECTION
6.1(A), THL AND EVERCORE (HOLDING'S TWO PRINCIPAL STOCKHOLDERS) SHALL HAVE THE
OPTION TO MAKE A COMMON EQUITY OR, ON TERMS AND CONDITIONS ACCEPTABLE TO AGENT,
PREFERRED EQUITY, CONTRIBUTION TO HOLDINGS AND THE NET PROCEEDS OF SUCH EQUITY
CONTRIBUTION SHALL BE TREATED ON A DOLLAR FOR DOLLAR BASIS AS EBITDA FOR
PURPOSES OF DETERMINING COMPLIANCE WITH THIS SECTION 6.1(A); PROVIDED, THAT,
SUCH AN EQUITY CONTRIBUTION SHALL, FOR PURPOSES OF ITS TREATMENT AS EBITDA, (I)
NOT BE MADE MORE THAN ONCE IN ANY FISCAL YEAR AND (II) NOT EXCEED $15,000,000 IN
AMOUNT (I.E., NOT MORE THAN $15,000,000 OF SUCH AN EQUITY CONTRIBUTION SHALL BE
TREATED AS A REPLACEMENT FOR EBITDA IN ANY YEAR AND SUCH AN EQUITY CONTRIBUTION
MAY ONLY BE MADE ONCE PER YEAR).
6.2.
FINANCIAL STATEMENTS AND OTHER REPORTS.
HOLDINGS AND BORROWERS
WILL MAINTAIN, AND CAUSE EACH OF THEIR SUBSIDIARIES TO MAINTAIN, A SYSTEM OF
ACCOUNTING ESTABLISHED AND ADMINISTERED IN ACCORDANCE WITH SOUND BUSINESS
PRACTICES TO PERMIT PREPARATION OF FINANCIAL STATEMENTS IN CONFORMITY WITH GAAP
(IT BEING UNDERSTOOD THAT MONTHLY FINANCIAL STATEMENTS ARE NOT REQUIRED TO HAVE
FOOTNOTE DISCLOSURES).
BORROWER REPRESENTATIVE WILL DELIVER OR MAKE AVAILABLE
EACH OF THE FINANCIAL STATEMENTS AND OTHER REPORTS DESCRIBED BELOW