BANC OF
AMERICA LEASING AND CAPITAL, LLC DATED MAY 27, 2005, DECEMBER 21, 2005 AND JUNE
10, 2006 (THE "BOFA LEASING AGREEMENTS")) OR (C) DOES NOT ENGAGE IN ANY BUSINESS
ACTIVITIES.
NOTWITHSTANDING THE FOREGOING, IT IS HEREBY ACKNOWLEDGED THAT THE
BORROWER RATHER THAN BEACON SALES COMPANY, INCORPORATED IS THE INTENDED OBLIGOR
TO THE BOFA LEASING AGREEMENTS AND IT IS HEREBY AGREED THAT FOR THE PURPOSES OF
THIS AGREEMENT THE BORROWER RATHER THAN BEACON SALES COMPANY, INCORPORATED SHALL
BE DEEMED TO BE THE OBLIGOR TO THE BOFA LEASING
78
AGREEMENTS.
4.18
FULL DISCLOSURE.
THE INFORMATION PREPARED OR FURNISHED BY OR ON
BEHALF OF ANY GROUP MEMBER IN CONNECTION WITH ANY LOAN DOCUMENT OR RELATED
DOCUMENT (INCLUDING THE INFORMATION CONTAINED IN ANY FINANCIAL STATEMENT OR
DISCLOSURE DOCUMENT) OR THE CONSUMMATION OF ANY RELATED TRANSACTION OR ANY OTHER
TRANSACTION CONTEMPLATED THEREIN, DOES NOT CONTAIN ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS
CONTAINED THEREIN, IN LIGHT OF THE CIRCUMSTANCES WHEN MADE, NOT MISLEADING;
PROVIDED, HOWEVER, THAT PROJECTIONS CONTAINED THEREIN ARE NOT TO BE VIEWED AS
FACTUAL AND THAT ACTUAL RESULTS DURING THE PERIODS COVERED THEREBY MAY DIFFER
FROM THE RESULTS SET FORTH IN SUCH PROJECTIONS BY A MATERIAL AMOUNT.
ALL
PROJECTIONS THAT ARE PART OF SUCH INFORMATION (INCLUDING THOSE SET FORTH IN ANY
PROJECTIONS DELIVERED SUBSEQUENT TO THE CLOSING DATE) ARE BASED UPON GOOD FAITH
ESTIMATES AND STATED ASSUMPTIONS BELIEVED TO BE REASONABLE AND FAIR AS OF THE
DATE MADE IN LIGHT OF CONDITIONS AND FACTS THEN KNOWN AND, AS OF SUCH DATE,
REFLECT GOOD FAITH, REASONABLE AND FAIR ESTIMATES OF THE INFORMATION PROJECTED
FOR THE PERIODS SET FORTH THEREIN.
ALL FACTS KNOWN TO ANY GROUP MEMBER AND
MATERIAL TO AN UNDERSTANDING OF THE FINANCIAL CONDITION, BUSINESS, PROPERTY OR
PROSPECTS OF THE GROUP MEMBER TAKEN AS ONE ENTERPRISE HAVE BEEN DISCLOSED TO THE
LENDERS.
5
FINANCIAL COVENANTS
Each of Holdings and the Borrower (and, to the extent set forth in any other
Loan Document, each other Loan Party) agrees with the Lenders, the L/C Issuers
and the Administrative Agent to each of the following, as long as any Obligation
to the Term B Lenders remains outstanding:
5.1
MAXIMUM CONSOLIDATED LEVERAGE RATIO.
HOLDINGS SHALL NOT HAVE, ON
THE LAST DAY OF EACH FISCAL QUARTER, COMMENCING WITH THE FISCAL QUARTER ENDING
DECEMBER 31, 2006, A CONSOLIDATED LEVERAGE RATIO GREATER THAN 4.00:1.0.
5.2
CAPITAL EXPENDITURES.
GROUP MEMBERS SHALL NOT INCUR, NOR PERMIT TO
BE INCURRED, CAPITAL EXPENDITURES (EXCLUDING TRADE-INS AND CAPITAL EXPENDITURES
FUNDED WITH NET CASH PROCEEDS FROM PROPERTY LOSS EVENTS) IN THE AGGREGATE DURING
ANY FISCAL YEAR IN EXCESS OF THREE PERCENT (3.00%) OF CONSOLIDATED GROSS
REVENUES OF HOLDINGS AND ITS SUBSIDIARIES FOR SUCH FISCAL YEAR.
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6
REPORTING COVENANTS
Each of Holdings and the Borrower (and, to the extent set forth in any other
Loan Document, each other Loan Party) agrees with the Lenders, the L/C Issuers
and the Administrative Agent to each of the following, as long as any Obligation