ON TERMS AND CONDITIONS REASONABLY SATISFACTORY TO
THE ADMINISTRATIVE AGENT.
(E)
(I)
THE SENIOR LEVERAGE RATIO, DETERMINED ON A PRO FORMA BASIS
AFTER GIVING EFFECT TO THE TRANSACTIONS AND WITH SUCH OTHER ADJUSTMENTS AS ARE
REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT AND THE LEAD ARRANGERS,
SHALL NOT EXCEED 4.10:1.00 FOR THE TWELVE-MONTH PERIOD ENDED ON NOVEMBER 30,
2004, AND THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED FROM THE U.S. BORROWER
SUPPORT FOR SUCH CALCULATIONS OF A NATURE THAT IS REASONABLY SATISFACTORY TO THE
ADMINISTRATIVE AGENT AND THE LEAD ARRANGERS.
(ii)
The ratio of (A) (1) total Funded Debt of the U.S. Borrower and
its Restricted Subsidiaries, minus (2) the amount of cash in excess of
$5,000,000 reflected on the U.S. Borrower's balance sheet on the Closing Date
after giving effect to the Transactions, minus (3) the aggregate amount of TTI's
12.5% senior subordinated notes due 2010 and the U.S. Borrower's 9.25% senior
subordinated notes due 2008 (collectively, the "Old Notes"), in each case for
which cash sufficient for the repayment, redemption or repurchase thereof is
then on deposit with the applicable trustee, to (B) Consolidated EBITDA of the
U.S. Borrower and its Restricted Subsidiaries for the
57
twelve-month period ending on November 30, 2004 shall not exceed 5.35:1.00;
provided that Consolidated EBITDA shall be calculated giving effect to the
Transactions as though the Transactions had occurred at the beginning of such
twelve-month period, and the Administrative Agent shall have received from the
U.S. Borrower support for such calculations of a nature that is reasonably
satisfactory to the Administrative Agent and the Lead Arrangers.
(F)
BEFORE AND AFTER GIVING EFFECT TO THE TRANSACTIONS AND THE OTHER
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THERE SHALL HAVE OCCURRED NO
MATERIAL ADVERSE CHANGE IN THE BUSINESS, FINANCIAL CONDITION, OPERATIONS,
ASSETS, LIABILITIES OR PROSPECTS OF ANY LOAN PARTY OR ANY OF ITS SUBSIDIARIES
SINCE DECEMBER 31, 2003.
(G)
THERE SHALL EXIST NO ACTION, SUIT, INVESTIGATION, LITIGATION OR
PROCEEDING AFFECTING ANY LOAN PARTY OR ANY OF ITS SUBSIDIARIES PENDING OR
THREATENED BEFORE ANY COURT, GOVERNMENTAL AGENCY OR ARBITRATOR THAT (I) WOULD
REASONABLY BE LIKELY TO HAVE A MATERIAL ADVERSE EFFECT OR (II) PURPORTS TO
AFFECT THE LEGALITY, VALIDITY OR ENFORCEABILITY OF THE MERGER, THIS AGREEMENT,
ANY NOTE, ANY OTHER LOAN DOCUMENTS, ANY RELATED DOCUMENT OR THE CONSUMMATION OF
THE TRANSACTIONS CONTEMPLATED HEREBY.
(H)
NOTHING SHALL HAVE COME TO THE ATTENTION OF THE LENDER PARTIES TO
LEAD THEM TO BELIEVE (I) THAT THE INFORMATION MEMORANDUM WAS OR HAS BECOME
MISLEADING, INCORRECT OR INCOMPLETE IN ANY MATERIAL RESPECT OR (II) THAT,
FOLLOWING THE CONSUMMATION OF THE TRANSACTIONS, EITHER BORROWER OR ITS
SUBSIDIARIES WOULD NOT HAVE GOOD AND MARKETABLE TITLE TO ALL MATERIAL ASSETS OF
SUCH BORROWER AND SUCH SUBSIDIARIES REFLECTED IN THE INFORMATION MEMORANDUM;
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE LENDER PARTIES SHALL HAVE
BEEN GIVEN SUCH ACCESS TO THE MANAGEMENT, RECORDS, BOOKS OF ACCOUNT, CONTRACTS
AND PROPERTIES OF THE BORROWERS AND THEIR RESPECTIVE RESTRICTED SUBSIDIARIES AS
THEY SHALL HAVE REASONABLY REQUESTED.
(I)
ALL GOVERNMENTAL AND THIRD