ANY AND ALL CLAIMS,
DEMANDS, PENALTIES, FINES, LIABILITIES, SETTLEMENTS, DAMAGES, COSTS AND EXPENSES
OF WHATEVER KIND OR NATURE KNOWN OR UNKNOWN, CONTINGENT OR OTHERWISE, ARISING
OUT OF, OR IN ANY WAY RELATING TO THE VIOLATION OF, NONCOMPLIANCE WITH OR
LIABILITY UNDER, ANY ENVIRONMENTAL LAW APPLICABLE TO THE OPERATIONS OF THE
CREDIT PARTIES OR ANY OF THEIR SUBSIDIARIES OR THE PROPERTIES, OR ANY ORDERS,
REQUIREMENTS OR DEMANDS OF GOVERNMENTAL AUTHORITIES RELATED THERETO, INCLUDING,
WITHOUT LIMITATION, ATTORNEY'S AND CONSULTANT'S FEES, INVESTIGATION AND
LABORATORY FEES, RESPONSE COSTS, COURT COSTS AND LITIGATION EXPENSES, EXCEPT TO
THE EXTENT THAT ANY OF THE FOREGOING ARISE OUT OF THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE PARTY SEEKING INDEMNIFICATION THEREFOR.
THE
PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND
THE PAYMENT IN FULL OF THE OBLIGATIONS.
SECTION 5.9
FINANCIAL COVENANTS.
The Borrowers and the Guarantors, as applicable, shall comply with the following
Financial Covenants:
(A)
INTEREST COVERAGE.
NO CREDIT PARTY SHALL
PERMIT, DURING ANY TEST PERIOD, THE RATIO OF (I) THE SUM OF CONSOLIDATED
ADJUSTED EBITDA OF ALL BORROWERS AT ANY TIME SUCH TEST PERIOD TO
(II) CONSOLIDATED INTEREST EXPENSE OF ALL BORROWERS AT ANY TIME SUCH TEST PERIOD
TO BE LESS THAN 1.50 TO 1.00.
(B)
MAINTENANCE OF RATIO OF CONSOLIDATED TOTAL
INDEBTEDNESS TO CONSOLIDATED TOTAL ASSETS.
NO CREDIT PARTY SHALL PERMIT THE
RATIO OF CONSOLIDATED TOTAL INDEBTEDNESS OF ALL BORROWERS TO CONSOLIDATED TOTAL
ASSETS OF ALL BORROWERS AT ANY TIME TO BE GREATER THAN 0.85 TO 1.00.
(C)
POSITIVE NET INCOME.
EACH BORROWER'S NET
INCOME SHALL BE POSITIVE AT ALL TIMES.
SECTION 5.10
ADDITIONAL CREDIT PARTIES.
(A)
ADDITIONAL BORROWERS.
TO THE EXTENT ANY
NEW BORROWER IS APPROVED BY THE ADMINISTRATIVE AGENT, IN ITS DISCRETION, THE
CREDIT PARTIES SHALL DELIVER TO THE ADMINISTRATIVE AGENT, WITH RESPECT TO EACH
NEW BORROWER TO THE EXTENT APPLICABLE, SUBSTANTIALLY THE SAME DOCUMENTATION
REQUIRED PURSUANT TO SECTIONS 4.1 AND 5.12 AND SUCH OTHER DOCUMENTS OR
AGREEMENTS AS THE ADMINISTRATIVE AGENT MAY REASONABLY REQUEST, INCLUDING WITHOUT
LIMITATION A BORROWER JOINDER AGREEMENT.
(B)
ADDITIONAL BORROWER SUBSIDIARIES.
SUBJECT
TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS,
INCLUDING WITHOUT LIMITATION THE SEPARATENESS PROVISIONS SET FORTH IN
SECTION 5.23 OF THIS AGREEMENT, ANY BORROWER MAY FROM TIME TO TIME FORM OR
ACQUIRE ADDITIONAL SUBSIDIARIES.
IN THE EVENT THAT ANY BORROWER AT ANY TIME
FORMS OR ACQUIRES ANY SUCH SUBSIDIARY, SUCH BORROWER SHALL, WITHIN TEN (10) DAYS
AFTER SUCH FORMATION OR ACQUISITION, (I) NOTIFY THE ADMINISTRATIVE AGENT IN
WRITING OF SUCH FORMATION OR ACQUISITION, (II) PLEDGE IN FAVOR OF THE
ADMINISTRATIVE AGENT FOR THE
84
RATABLE BENEFIT OF THE LENDERS OF ALL OF THE CAPITAL STOCK AND OTHER EQUITY AND
OWNERSHIP INTERESTS HELD BY THE BORROWER IN EACH SUCH SUBSIDIARY AND SHALL TAKE
ALL SUCH FURTHER ACTION AS THE ADMINISTRATIVE AGENT SHALL DEEM REASONABLY
NECESSARY OR ADVISABLE (INCLUDING, WITHOUT LIMITATION, THE EXECUTION OF
FINANCING STATEMENTS ON FORM UCC-1 AND ANY ADDITIONAL SECURITY AGREEMENTS OR
AMENDMENTS THERETO) IN ORDER TO EFFECT AND PERFECT SUCH PLEDGE, (III) IN THE