Common use of Execution Copy Clause in Contracts

Execution Copy. Total Debt to Consolidated Total EBITDA Ratio as at the end of such fiscal year or period, as the case may be for the purpose of determining the Commitment Fee payable pursuant to Section 4.1(a); (iii) a specification of any change in the identity of the Restricted Subsidiaries, the Unrestricted Subsidiaries, the Specified Subsidiaries, the Immaterial Subsidiaries and the Foreign Subsidiaries as at the end of such fiscal year or period, as the case may be, from the Restricted Subsidiaries, the Unrestricted Subsidiaries, the Specified Subsidiaries, the Immaterial Subsidiaries and the Foreign Subsidiaries, respectively, provided to the Lenders on the Closing Date or the most recent fiscal year or period, as the case may be, (iv) the then applicable pricing level, (v) the calculations and basis, in reasonable detail, of any “run rate” cost savings added back to Consolidated EBITDA pursuant to the provisions of clause (a)(xi) of the definition thereof and (vi) the amount of any Pro Forma Adjustment not previously set forth in a Pro Forma Adjustment Certificate or any change in the amount of a Pro Forma Adjustment set forth in any Pro Forma Adjustment Certificate previously provided and, in either case in reasonable detail, the calculations and basis therefor. At the time of the delivery of the financial statements provided for in Section 9.1(a), a certificate of an Authorized Officer of the Borrower setting forth (i) in reasonable detail the calculation of the Available Amount and the Available Equity Amount as at the end of the fiscal year to which such financial statements relate and (ii) the information required pursuant to Section 2 of the Perfection Certificate or confirming that there has been no change in such information since the Closing Date or the date of the most recent certificate delivered pursuant to this Section 9.1(d), as the case may be.

Execution Copy. Total Debt to Consolidated Total EBITDA Ratio periods in each fiscal year of the Borrower (or, in the case of financial statements for the fiscal quarters ended March 31, 2008 and June 30, 2008, on or before the date that is 60 days after the end of such fiscal quarter), the consolidated balance sheet of the Borrower and its consolidated Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as at the end of such quarterly period and the related consolidated statement of operations for such quarterly accounting period and for the elapsed portion of the fiscal year or ended with the last day of such quarterly period, as and the related consolidated statement of cash flows for the elapsed portion of the fiscal year ended with the last day of such quarterly period, and setting forth comparative consolidated figures for the related periods in the prior fiscal year or, in the case may be of such consolidated balance sheet, for the purpose last day of determining the Commitment Fee payable pursuant to Section 4.1(a); prior fiscal year (iii) a specification or in lieu of any change in such audited financial statements of the identity of Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Unrestricted Subsidiaries, the Specified Subsidiaries, the Immaterial Subsidiaries Borrower and the Foreign Subsidiaries as at the end of such fiscal year or period, as the case may be, from the Restricted Subsidiaries, on the Unrestricted one hand, and the Borrower and its consolidated Subsidiaries, the Specified Subsidiaries, the Immaterial Subsidiaries and the Foreign Subsidiaries, respectively, provided to the Lenders on the Closing Date or the most recent fiscal year or periodother hand), as the case may be, (iv) the then applicable pricing level, (v) the calculations and basis, all in reasonable detail, detail and all of any “run rate” cost savings added back to Consolidated EBITDA pursuant to the provisions of clause (a)(xi) of the definition thereof and (vi) the amount of any Pro Forma Adjustment not previously set forth in a Pro Forma Adjustment Certificate or any change in the amount of a Pro Forma Adjustment set forth in any Pro Forma Adjustment Certificate previously provided and, in either case in reasonable detail, the calculations and basis therefor. At the time of the delivery of the financial statements provided for in Section 9.1(a), a certificate of which shall be certified by an Authorized Officer of the Borrower setting forth as fairly presenting in all material respects the financial condition, results of operations, stockholders’ equity and cash flows of the Borrower and its consolidated Subsidiaries in accordance with GAAP, subject to changes resulting from audit, normal year-end audit adjustments and the absence of footnotes. Notwithstanding the foregoing, the obligations in this Section 8.1(b) may be satisfied with respect to financial information of the Borrower and its consolidated Subsidiaries by furnishing (iA) the applicable financial statements of Holdings (or any direct or indirect parent of Holdings) or (B) the Borrower’s, or Holdings’ (or any direct or indirect parent thereof), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, with respect to each of clauses (A) and (B), to the extent such information relates to Holdings (or a parent thereof), such information is accompanied by consolidating information that explains in reasonable detail the calculation of differences between the Available Amount information relating to Holdings (or such parent), on the one hand, and the Available Equity Amount as at information relating to the end of Borrower and its consolidated Subsidiaries on a standalone basis, on the fiscal year to which such financial statements relate and (ii) the information required pursuant to Section 2 of the Perfection Certificate or confirming that there has been no change in such information since the Closing Date or the date of the most recent certificate delivered pursuant to this Section 9.1(d), as the case may beother hand.

Execution Copy. Total Debt If any of the foregoing provisions or other provisions of this Article 11 are inconsistent with applicable law, such law shall govern. (2) To exercise a repurchase right, a Holder shall deliver to Consolidated Total EBITDA Ratio the Trustee on or before the date specified in the repurchase notice (i) written notice of the Holder's exercise of such right, which notice shall set forth the name of the Holder, the principal amount of the Notes to be repurchased (and, if any Note is to repurchased in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby, and, in the event that the Repurchase Price shall be paid in shares of Common Stock, the name or names (with addresses) in which the certificate or certificates for shares of Common Stock shall be issued, and (ii) the Notes with respect to which the repurchase right is being exercised. The right of the Holder to convert the Notes with respect to which the repurchase right is being exercised shall continue until the close of business on the Business Day prior to the Repurchase Date. (3) In the event a repurchase right shall be exercised in accordance with the terms hereof, on the Repurchase Date, the Company shall accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer, deposit with or pay or cause to be paid to the Trustee the Repurchase Price in cash or shares of Common Stock, as provided above, for payment by the Trustee to the Holder on the Repurchase Date or, if shares of Common Stock are to be paid, as promptly after the Repurchase Date as practicable; provided, however, that installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the end close of business on the relevant Regular Record Date; and deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers' Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company. (4) If any Note (or portion thereof) surrendered for repurchase shall not be so paid on the Repurchase Date, the principal amount of such fiscal year Note (or period, as the case may be for the purpose of determining the Commitment Fee payable pursuant to Section 4.1(a); (iii) a specification of any change in the identity of the Restricted Subsidiaries, the Unrestricted Subsidiaries, the Specified Subsidiaries, the Immaterial Subsidiaries and the Foreign Subsidiaries as at the end of such fiscal year or periodportion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the Restricted SubsidiariesRepurchase Date at the rate specified therein, and each Note shall remain convertible into Common Stock until the Unrestricted Subsidiaries, the Specified Subsidiaries, the Immaterial Subsidiaries and the Foreign Subsidiaries, respectively, provided to the Lenders on the Closing Date principal of such Note (or the most recent fiscal year or periodportion thereof, as the case may be) shall have been paid or duly provided for. (5) Any Note which is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and mail (ivor cause to be transferred by book entry) to the then applicable pricing levelHolder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered; provided that each such new Note shall be in principal amount of $1,000 or an integral multiple thereof. (v6) Any issuance of shares of Common Stock in respect of the calculations Repurchase Price shall be deemed to have been effected immediately prior to the close of business on the Repurchase Date and basisthe Person or Persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such repurchase shall be deemed to have become on the Repurchase Date the holder or holders of record of the shares represented thereby; provided, however, that any surrender for repurchase on a date when the stock transfer books of the Company shall be closed shall constitute the Person or Persons in reasonable detail, whose name or names the certificate or certificates for such shares are to be issued as the record holder or holders thereof for all purposes at the opening of business on the next succeeding day on which such stock transfer books are open. No payment or adjustment shall be made for dividends or distributions on any Common Stock issued upon repurchase of any “run rate” cost savings added back to Consolidated EBITDA pursuant Note declared prior to the provisions Repurchase Date. (7) No fractions of clause (a)(xi) shares shall be issued upon repurchase of Notes. If more than one Note shall be repurchased from the same Holder and the Repurchase Price shall be payable in shares of Common Stock, the number of full shares which shall be issuable upon such repurchase shall be computed on the basis of the definition thereof aggregate principal amount of the Notes so repurchased. Instead of any fractional share of Common Stock which would otherwise be issuable on the repurchase of any Note or Notes, the Company will deliver to the applicable Holder its check for the current market value of such fractional share or round up the number of shares of Common Stock issuable upon conversion to the nearest whole share). The current market value of a fraction of a share is determined by multiplying the current market price of a full share by the fraction, and rounding the result to the nearest cent. For purposes of this Section, the current market price of a share of Common Stock is the Closing Price Per Share of the Common Stock on the Trading Day immediately preceding the Repurchase Date. (vi8) Any issuance and delivery of certificates for shares of Common Stock on repurchase of Notes shall be made without charge to the Holder of Notes being repurchased for such certificates or for any tax or duty in respect of the issuance or delivery of such certificates or the Notes represented thereby; provided, however, that the Company shall not be required to pay any tax or duty which may be payable in respect of (i) income of the Holder or (ii) any transfer involved in the issuance or delivery of certificates for shares of Common Stock in a name other than that of the Holder of the Notes being repurchased, and no such issuance or delivery shall be made unless and until the Person requesting such issuance or delivery has paid to the Company the amount of any Pro Forma Adjustment not previously set forth in a Pro Forma Adjustment Certificate such tax or any change in duty or has established, to the amount of a Pro Forma Adjustment set forth in any Pro Forma Adjustment Certificate previously provided and, in either case in reasonable detail, the calculations and basis therefor. At the time satisfaction of the delivery of the financial statements provided for in Section 9.1(a)Company, a certificate of an Authorized Officer of the Borrower setting forth (i) in reasonable detail the calculation of the Available Amount and the Available Equity Amount as at the end of the fiscal year to which that such financial statements relate and (ii) the information required pursuant to Section 2 of the Perfection Certificate tax or confirming that there duty has been no change in such information since the Closing Date or the date of the most recent certificate delivered pursuant to this Section 9.1(d), as the case may bepaid.