"CASH AND CASH
EQUIVALENTS" AND "MARKETABLE SECURITIES" OF THE FOREIGN SUBSIDIARIES (OTHER THAN
FOREIGN SUBSIDIARIES THAT ARE LOAN PARTIES), IN EACH CASE THAT WOULD BE REQUIRED
TO BE REFLECTED ON A CONSOLIDATED BALANCE SHEET OF THE PARENT BORROWER AND THE
SUBSIDIARIES PREPARED AS OF SUCH TIME IN ACCORDANCE WITH GAAP, MINUS (B) THE
AGGREGATE AMOUNT OF PAYMENTS IN SUCH CASH AND CASH EQUIVALENTS THAT THE PARENT
BORROWER REASONABLY AND IN GOOD FAITH DETERMINES WILL BE MADE BY THE FOREIGN
SUBSIDIARIES THAT ARE NOT LOAN PARTIES (AND WILL REDUCE SUCH CASH AND CASH
EQUIVALENTS) ON SUCH DAY TO EXCEED $10,000,000.
SECTION 6.15.
ERISA.
THE PARENT BORROWER WILL NOT, AND WILL NOT PERMIT ANY
SUBSIDIARY TO, CAUSE OR PERMIT ANY ERISA AFFILIATE TO, CAUSE OR PERMIT TO OCCUR
(I) AN EVENT THAT COULD RESULT IN THE IMPOSITION OF A LIEN UNDER SECTION 412 OF
THE CODE OR SECTION 302 OR 4068 OF ERISA OR (II) AN ERISA EVENT TO THE EXTENT
SUCH ERISA EVENT WOULD REASONABLY BE EXPECTED TO RESULT IN TAXES, PENALTIES AND
OTHER LIABILITIES IN AN AGGREGATE AMOUNT IN EXCESS OF $250,000 IN THE AGGREGATE.
SECTION 6.16.
CANCELLATION OF INDEBTEDNESS.
THE PARENT BORROWER WILL NOT, AND
WILL NOT PERMIT ANY SUBSIDIARY TO, CANCEL ANY CLAIM OR DEBT OWING TO IT, EXCEPT
FOR REASONABLE CONSIDERATION NEGOTIATED ON AN ARM'S LENGTH BASIS AND IN THE
ORDINARY COURSE OF ITS BUSINESS CONSISTENT WITH PAST PRACTICES.
SECTION 6.17.
CHANGE IN FISCAL YEAR; ACCOUNTING POLICIES.
THE PARENT BORROWER
WILL NOT, AND WILL NOT PERMIT ANY SUBSIDIARY TO, CHANGE ITS FISCAL YEAR FROM A
YEAR ENDING DECEMBER 31 UNLESS REQUIRED BY LAW, IN WHICH CASE SUCH LOAN PARTY
WILL GIVE THE ADMINISTRATIVE AGENT AT LEAST THIRTY (30) DAYS PRIOR WRITTEN
NOTICE THEREOF.
SUBJECT TO SECTION 1.04, THE PARENT BORROWER WILL NOT, AND WILL
NOT PERMIT ANY SUBSIDIARY TO, CHANGE ITS ACCOUNTING POLICIES FROM THOSE USED TO
PREPARE THE FINANCIAL STATEMENTS DELIVERED PURSUANT TO SECTION 4.01(I) WITHOUT
THE PRIOR WRITTEN CONSENT OF THE ADMINISTRATIVE AGENT
SECTION 6.18.
FINANCIAL COVENANTS.
THE PARENT BORROWER SHALL HAVE AT THE END
OF EACH FISCAL MONTH SET FORTH BELOW, A FIXED CHARGE COVERAGE RATIO FOR THE
12-MONTH PERIOD THEN ENDED OF NOT LESS THAN:
Fiscal Month Ending
Minimum Fixed Charge Coverage Ratio
December 31, 2005
0.78:1.00
January 31, 2006
0.75:1.00
February 28, 2006
0.74:1.00
March 31, 2006
0.74:1.00
April 30, 2006
0.74:1.00
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May 31, 2006
0.76:1.00
June 30, 2006
0.90:1.00
July 31, 2006
0.94:1.00
August 31, 2006
0.96:1.00
September 30, 2006
0.96:1.00
October 31, 2006
1.00:1.00
November 30, 2006
1.02:1.00
December 31, 2006
1.09:1.00
each fiscal month thereafter
1.10:1.00
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SECTION 6.19.
No Additional Deposit Accounts.
No Loan Party shall open,
maintain or otherwise have any deposit accounts at any bank or other financial
institution, or any other account where money is or may be deposited or
maintained with any Person, other than (a) the accounts set forth on Schedule
6.19, each of which shall (i) on the Effective Date, be subject to a deposit
account control agreement in