IN ANY THE EXCLUDED ACCOUNTS SET FORTH IN LETTER "(III)" OF THE
DEFINITION OF "EXCLUDED ACCOUNT" AS OF ANY DATE OF DETERMINATION EXCEED AN
AMOUNT EQUAL TO THE AMOUNT OF PAYROLL PAYABLE TO EMPLOYEES OF THE LOAN PARTIES
DURING THE FIFTEEN (15) DAY PERIOD IMMEDIATELY FOLLOWING SUCH DATE OF
DETERMINATION, AND (II) THE AGGREGATE AMOUNTS ON DEPOSIT IN ANY EXCLUDED ACCOUNT
SET FORTH IN LETTER "(II)" OF THE DEFINITION OF "EXCLUDED ACCOUNTS" SHALL NOT
EXCEED $25,000 IN CASH OR CASH EQUIVALENTS.
SECTION 7.16
CAPITAL EXPENDITURES.
INCUR CAPITAL EXPENDITURES:
(A)
DURING FISCAL YEAR 2008, IN EXCESS OF $120,000,000;
(B)
DURING FISCAL YEAR 2009, IN EXCESS OF $120,000,000 PLUS THE UNUSED
PORTION OF THE CAPITAL EXPENDITURES ALLOWED FOR FISCAL YEAR 2008 (FOR THE
PURPOSES OF THIS DEFINITION, SUCH UNUSED PORTION, THE "2008 CAPEX REMAINDER");
(C)
DURING FISCAL YEAR 2010, IN EXCESS OF $120,000,000 PLUS THE LESSER
OF (I) $120,000,000 AND (II) THE 2008 CAPEX REMAINDER PLUS $120,000,000 MINUS
THE AMOUNT OF CAPITAL EXPENDITURES INCURRED BY THE LOAN PARTIES FOR THE FISCAL
YEAR 2009;
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PROVIDED, HOWEVER, THAT IN NO EVENT SHALL THE AMOUNT OF CAPITAL EXPENDITURES
INCURRED BY THE BORROWERS IN ORDER TO BE ABLE TO RENDER THE SERVICES PERMITTED
UNDER SECTION 7.02(K) HEREOF EXCEED $5,000,000 FOR ANY FISCAL YEAR (AS CERTIFIED
BY THE BORROWER REPRESENTATIVE PRIOR TO SUCH CAPITAL EXPENDITURE AND ON AN
ANNUAL BASIS).
ARTICLE VIII
FINANCIAL COVENANTS
SECTION 8.01
FINANCIAL COVENANTS.
SO LONG AS ANY LENDER SHALL
HAVE ANY REVOLVING COMMITMENT OR ANY DELAYED DRAW COMMITMENT HEREUNDER OR OTHER
OBLIGATION HEREUNDER SHALL REMAIN UNPAID OR UNSATISFIED, OR ANY LETTER OF CREDIT
SHALL REMAIN OUTSTANDING, NO LOAN PARTY SHALL PERMIT:
(A)
NET TOTAL FUNDED DEBT RATIO.
NET TOTAL FUNDED DEBT RATIO TO BE
GREATER THAN 2.50 TO 1.0, BASED ON THE MOST RECENT COMPLIANCE CERTIFICATE
RECEIVED BY THE ADMINISTRATIVE AGENT PURSUANT TO SECTION 6.02(B).
(B)
CONSOLIDATED FIXED CHARGES COVERAGE RATIO. CONSOLIDATED FIXED CHARGES
COVERAGE RATIO TO BE LESS THAN (IN EACH CASE BASED ON THE COMPLIANCE CERTIFICATE
RECEIVED BY THE ADMINISTRATIVE AGENT PURSUANT TO SECTION 6.02(B)):
(I)
1.0 TO 1.0 DURING EACH OF THE FIRST THREE (3) FISCAL
QUARTERS OF THE FISCAL YEAR 2008,
(II)
1.05 TO 1.0 DURING THE FOURTH FISCAL QUARTER OF 2008, AND
(III)
1.1 TO 1.0 DURING EACH REMAINING FISCAL QUARTER THEREAFTER
AND UNTIL THE MATURITY DATE.
(C)
RESTRICTED CASH. THE AGGREGATE AMOUNT OF CASH AND CASH EQUIVALENTS
ON DEPOSIT IN THE BLOCKED ACCOUNTS AT ANY TIME TO BE LESS THAN $20,000,000
("RESTRICTED CASH").
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
SECTION 9.01
EVENTS OF DEFAULT.
ANY OF THE FOLLOWING SHALL
CONSTITUTE AN EVENT OF DEFAULT:
(A)
NON-PAYMENT.
ANY BORROWER OR ANY OTHER LOAN PARTY FAILS TO PAY WHEN
AND AS REQUIRED TO BE PAID PURSUANT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, (I) ANY AMOUNT OF PRINCIPAL OF ANY LOAN OR ANY L/C EXPOSURE OR
(II) WITHIN THREE (3) DAYS AFTER THE SAME BECOMES DUE, INTEREST ON ANY LOAN OR
ANY L/C EXPOSURE,
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ANY COMMITMENT FEE, UTILIZATION FEE OR OTHER FEE