Common use of Total Borrowed Funds to Consolidated Net Worth Clause in Contracts

Total Borrowed Funds to Consolidated Net Worth. The Company will not permit Total Borrowed Funds to exceed (i) 93% of Consolidated Net Worth at the end of the fiscal quarter ending September 30, 2002 or (ii) 85% of Consolidated Net Worth at the end of any other quarter. C. From and after July 1, 2002 the interest rate on the Notes shall be 7.91% per annum and the interest rate "7.41%" shall be deleted each and every time it appears in the Agreement or the Notes and replaced with "7.91%." The Company hereby agrees to execute and deliver to each Holder who shall request the same, upon surrender to the Company of the outstanding Note held by such Holder, a new Note in the same principal amount as the surrendered Note, but having an interest rate of 7.91%. Until so exchanged, the interest rate on all outstanding Notes shall be deemed to be 7.91% notwithstanding that the interest rate set out in such Note shall be 7.41%. 2. Subject to the provisions of Section 3 below, the amendment set forth in Section 1.A shall be effective from June 30, 2002 through March 31, 2003 and the Company and the undersigned Holders agree that the definition of "Cash Flow" applicable and effective on March 31, 2001 shall be restored, deemed reinstated and effective as if expressly set forth herein from and after April 1, 2003. 3. In reliance upon the Company's representations in Section 4 below, the Required Holders waive any violations of Sections 5A, 5B(i) and 5(E) of the Agreement, and the inaccuracies in the representations and warranties contained in Sections 8D and 8K of the Agreement, in each case solely to the extent caused by the non-cash charges incurred by the Company in an aggregate amount of no more than $97,100,000 with respect to the fiscal quarter ended June 30, 2002 or prior periods on a cumulative basis; provided, however, that with respect to Section 5E, such waiver is limited to those laws, rules and regulations enacted for the primary purpose of regulating or governing audit and/or financial reporting requirements for similarly-situated public companies; and provided further that all of the foregoing waivers expressly exclude any conduct, actions or omissions on the part of the Company, its affiliates, or any of their respective officers, directors or employees in connection with the matters contemplated hereby, that constitute fraud, willful misconduct or criminal charges for which any such Person is indicted or otherwise prosecuted. 4. The Company hereby represents and warrants that, after giving effect to this Amendment and Waiver Agreement, no Default or Event of Default will have occurred or be continuing. Except as expressly provided herein (and solely with respect to any applicable period referenced herein), the Agreement shall remain in full force and effect and this Amendment and Waiver Agreement shall not operate as a waiver of any right, power or remedy of any Holder, nor constitute a waiver of any provision of the Agreement. 5. In consideration for the amendment set forth in Section 1.B, the Company shall pay pro rata to the Holders a fee in an aggregate amount equal to the product of (x) the aggregate outstanding principal amount of the Notes and (y) 0.125%. 6. The Company agrees to pay all out-of-pocket expenses incurred by the Holders in connection with this Amendment and Waiver Agreement in accordance with the terms of Section 11B of the Agreement. 7. This Amendment and Waiver Agreement shall be construed and enforced in accordance with the laws of the State of New York, without regard to conflicts of law provisions. 8. Each of the Holders agrees to keep confidential, in accordance with Section 11H of the Agreement, all information disclosed by the Company to the Holders in connection with this Amendment and Waiver Agreement relating to the subject matter hereof (other than any such information which was publicly known or otherwise known to such Holder at the time of disclosure, or (ii) which subsequently becomes publicly known through no act or omission by such Holder). 9. This Amendment and Waiver Agreement shall be effective as of the date first above written and the Agreement shall be deemed amended upon delivery to the Holders of a fully executed copy of this Amendment and Waiver Agreement and the fee set forth in Section 5.

Total Borrowed Funds to Consolidated Net Worth. The Company will not permit Total Borrowed Funds to exceed (i) 93% of Consolidated Net Worth at the end of the fiscal quarter ending September 30, 2002 or (ii) 85% of Consolidated Net Worth at the end of any other quarter. C. From and after July 1, 2002 the interest rate on the Notes shall be 7.918.45% per annum and the interest rate "7.417.95%" shall be deleted each and every time it appears in the Agreement or the Notes and replaced with "7.918.45%." The Company hereby agrees to execute and deliver to each Holder who shall request the same, upon surrender to the Company of the outstanding Note held by such Holder, a new Note in the same principal amount as the surrendered Note, but having an interest rate of 7.918.45%. Until so exchanged, the interest rate on all outstanding Notes shall be deemed to be 7.918.45% notwithstanding that the interest rate set out in such Note shall be 7.417.95%. 2. Subject to the provisions of Section 3 below, the amendment set forth in Section 1.A shall be effective from June 30, 2002 through March 31, 2003 and the Company and the undersigned Holders agree that the definition of "Cash Flow" applicable and effective on March 31, 2001 shall be restored, deemed reinstated and effective as if expressly set forth herein from and after April 1, 2003. 3. In reliance upon the Company's representations in Section 4 below, the Required Holders waive any violations of Sections 5A, 5B(i) and 5(E) of the Agreement, and the inaccuracies in the representations and warranties contained in Sections 8D and 8K of the Agreement, in each case solely to the extent caused by the non-cash charges incurred by the Company in an aggregate amount of no more than $97,100,000 with respect to the fiscal quarter ended June 30, 2002 or prior periods on a cumulative basis; provided, however, that with respect to Section 5E, such waiver is limited to those laws, rules and regulations enacted for the primary purpose of regulating or governing audit and/or financial reporting requirements for similarly-situated public companies; and provided further that all of the foregoing waivers expressly exclude any conduct, actions or omissions on the part of the Company, its affiliates, or any of their respective officers, directors or employees in connection with the matters contemplated hereby, that constitute fraud, willful misconduct or criminal charges for which any such Person is indicted or otherwise prosecuted. 4. The Company hereby represents and warrants that, after giving effect to this Amendment and Waiver Agreement, no Default or Event of Default will have occurred or be continuing. Except as expressly provided herein (and solely with respect to any applicable period referenced herein), the Agreement shall remain in full force and effect and this Amendment and Waiver Agreement shall not operate as a waiver of any right, power or remedy of any Holder, nor constitute a waiver of any provision of the Agreement. 5. In consideration for the amendment set forth in Section 1.B, the Company shall pay pro rata to the Holders a fee in an aggregate amount equal to the product of (x) the aggregate outstanding principal amount of the Notes and (y) 0.125%. 6. The Company agrees to pay all out-of-pocket expenses incurred by the Holders in connection with this Amendment and Waiver Agreement in accordance with the terms of Section 11B of the Agreement. 7. This Amendment and Waiver Agreement shall be construed and enforced in accordance with the laws of the State of New York, without regard to conflicts of law provisions. 8. Each of the Holders agrees to keep confidential, in accordance with Section 11H of the Agreement, all information disclosed by the Company to the Holders in connection with this Amendment and Waiver Agreement relating to the subject matter hereof (other than any such information which was publicly known or otherwise known to such Holder at the time of disclosure, or (ii) which subsequently becomes publicly known through no act or omission by such Holder). 9. This Amendment and Waiver Agreement shall be effective as of the date first above written and the Agreement shall be deemed amended upon delivery to the Holders of a fully executed copy of this Amendment and Waiver Agreement and the fee set forth in Section 5.

Total Borrowed Funds to Consolidated Net Worth. The Company will not permit Total Borrowed Funds to exceed (i) 93% of Consolidated Net Worth at the end of the fiscal quarter ending September 30, 2002 or (ii) 85% of Consolidated Net Worth at the end of any other quarter. C. From and after July 1, 2002 the interest rate on the Notes shall be 7.916.55% per annum and the interest rate "7.416.05%" shall be deleted each and every time it appears in the Agreement or the Notes and replaced with "7.916.55%." The Company hereby agrees to execute and deliver to each Holder who shall request the same, upon surrender to the Company of the outstanding Note held by such Holder, a new Note in the same principal amount as the surrendered Note, but having an interest rate of 7.916.55%. Until so exchanged, the interest rate on all outstanding Notes shall be deemed to be 7.916.55% notwithstanding that the interest rate set out in such Note shall be 7.416.05%. 2. Subject to the provisions of Section 3 below, the amendment set forth in Section 1.A shall be effective from June 30, 2002 through March 31, 2003 and the Company and the undersigned Holders agree that the definition of "Cash Flow" applicable and effective on March 31, 2001 shall be restored, deemed reinstated and effective as if expressly set forth herein from and after April 1, 2003. 3. In reliance upon the Company's representations in Section 4 below, the Required Holders waive any violations of Sections 5A, 5B(i) and 5(E) of the Agreement, and the inaccuracies in the representations and warranties contained in Sections 8D and 8K of the Agreement, in each case solely to the extent caused by the non-cash charges incurred by the Company in an aggregate amount of no more than $97,100,000 with respect to the fiscal quarter ended June 30, 2002 or prior periods on a cumulative basis; provided, however, that with respect to Section 5E, such waiver is limited to those laws, rules and regulations enacted for the primary purpose of regulating or governing audit and/or financial reporting requirements for similarly-situated public companies; and provided further that all of the foregoing waivers expressly exclude any conduct, actions or omissions on the part of the Company, its affiliates, or any of their respective officers, directors or employees in connection with the matters contemplated hereby, that constitute fraud, willful misconduct or criminal charges for which any such Person is indicted or otherwise prosecuted. 4. The Company hereby represents and warrants that, after giving effect to this Amendment and Waiver Agreement, no Default or Event of Default will have occurred or be continuing. Except as expressly provided herein (and solely with respect to any applicable period referenced herein), the Agreement shall remain in full force and effect and this Amendment and Waiver Agreement shall not operate as a waiver of any right, power or remedy of any Holder, nor constitute a waiver of any provision of the Agreement. 5. In consideration for the amendment set forth in Section 1.B, the Company shall pay pro rata to the Holders a fee in an aggregate amount equal to the product of (x) the aggregate outstanding principal amount of the Notes and (y) 0.125%. 6. The Company agrees to pay all out-of-pocket expenses incurred by the Holders in connection with this Amendment and Waiver Agreement in accordance with the terms of Section 11B of the Agreement. 7. This Amendment and Waiver Agreement shall be construed and enforced in accordance with the laws of the State of New York, without regard to conflicts of law provisions. 8. Each of the Holders agrees to keep confidential, in accordance with Section 11H of the Agreement, all information disclosed by the Company to the Holders in connection with this Amendment and Waiver Agreement relating to the subject matter hereof (other than any such information which was publicly known or otherwise known to such Holder at the time of disclosure, or (ii) which subsequently becomes publicly known through no act or omission by such Holder). 9. This Amendment and Waiver Agreement shall be effective as of the date first above written and the Agreement shall be deemed amended upon delivery to the Holders of a fully executed copy of this Amendment and Waiver Agreement and the fee set forth in Section 5.

Total Borrowed Funds to Consolidated Net Worth. The Company will not permit Total Borrowed Funds to exceed (i) 93% of Consolidated Net Worth at the end of the fiscal quarter ending September 30, 2002 or (ii) 85% of Consolidated Net Worth at the end of any other quarter. C. From and after July 1, 2002 the interest rate on the Notes shall be 7.917.59% per annum and the interest rate "7.417.09%" shall be deleted each and every time it appears in the Agreement or the Notes and replaced with "7.917.59%." The Company hereby agrees to execute and deliver to each Holder who shall request the same, upon surrender to the Company of the outstanding Note held by such Holder, a new Note in the same principal amount as the surrendered Note, but having an interest rate of 7.917.59%. Until so exchanged, the interest rate on all outstanding Notes shall be deemed to be 7.917.59% notwithstanding that the interest rate set out in such Note shall be 7.417.09%. 2. Subject to the provisions of Section 3 below, the amendment set forth in Section 1.A shall be effective from June 30, 2002 through March 31, 2003 and the Company and the undersigned Holders agree that the definition of "Cash Flow" applicable and effective on March 31, 2001 shall be restored, deemed reinstated and effective as if expressly set forth herein from and after April 1, 2003. 3. In reliance upon the Company's representations in Section 4 below, the Required Holders waive any violations of Sections 5A, 5B(i) and 5(E) of the Agreement, and the inaccuracies in the representations and warranties contained in Sections 8D and 8K of the Agreement, in each case solely to the extent caused by the non-cash charges incurred by the Company in an aggregate amount of no more than $97,100,000 with respect to the fiscal quarter ended June 30, 2002 or prior periods on a cumulative basis; provided, however, that with respect to Section 5E, such waiver is limited to those laws, rules and regulations enacted for the primary purpose of regulating or governing audit and/or financial reporting requirements for similarly-situated public companies; and provided further that all of the foregoing waivers expressly exclude any conduct, actions or omissions on the part of the Company, its affiliates, or any of their respective officers, directors or employees in connection with the matters contemplated hereby, that constitute fraud, willful misconduct or criminal charges for which any such Person is indicted or otherwise prosecuted. 4. The Company hereby represents and warrants that, after giving effect to this Amendment and Waiver Agreement, no Default or Event of Default will have occurred or be continuing. Except as expressly provided herein (and solely with respect to any applicable period referenced herein), the Agreement shall remain in full force and effect and this Amendment and Waiver Agreement shall not operate as a waiver of any right, power or remedy of any Holder, nor constitute a waiver of any provision of the Agreement. 5. In consideration for the amendment set forth in Section 1.B, the Company shall pay pro rata to the Holders a fee in an aggregate amount equal to the product of (x) the aggregate outstanding principal amount of the Notes and (y) 0.125%. 6. The Company agrees to pay all out-of-pocket expenses incurred by the Holders in connection with this Amendment and Waiver Agreement in accordance with the terms of Section 11B of the Agreement. 7. This Amendment and Waiver Agreement shall be construed and enforced in accordance with the laws of the State of New York, without regard to conflicts of law provisions. 8. Each of the Holders agrees to keep confidential, in accordance with Section 11H of the Agreement, all information disclosed by the Company to the Holders in connection with this Amendment and Waiver Agreement relating to the subject matter hereof (other than any such information which was publicly known or otherwise known to such Holder at the time of disclosure, or (ii) which subsequently becomes publicly known through no act or omission by such Holder). 9. This Amendment and Waiver Agreement shall be effective as of the date first above written and the Agreement shall be deemed amended upon delivery to the Holders of a fully executed copy of this Amendment and Waiver Agreement and the fee set forth in Section 5.

Total Borrowed Funds to Consolidated Net Worth. The Company will not permit Total Borrowed Funds to exceed (i) 93% of Consolidated Net Worth at the end of the fiscal quarter ending September 30, 2002 or (ii) 85% of Consolidated Net Worth at the end of any other quarter. C. From and after July 1, 2002 the interest rate on the Notes shall be 7.918.51% per annum and the interest rate "7.418.01%" shall be deleted each and every time it appears in the Agreement or the Notes and replaced with "7.918.51%." The Company hereby agrees to execute and deliver to each Holder who shall request the same, upon surrender to the Company of the outstanding Note held by such Holder, a new Note in the same principal amount as the surrendered Note, but having an interest rate of 7.918.51%. Until so exchanged, the interest rate on all outstanding Notes shall be deemed to be 7.918.51% notwithstanding that the interest rate set out in such Note shall be 7.418.01%. 2. Subject to the provisions of Section 3 below, the amendment set forth in Section 1.A shall be effective from June 30, 2002 through March 31, 2003 and the Company and the undersigned Holders agree that the definition of "Cash Flow" applicable and effective on March 31, 2001 shall be restored, deemed reinstated and effective as if expressly set forth herein from and after April 1, 2003. 3. In reliance upon the Company's representations in Section 4 below, the Required Holders waive any violations of Sections 5A, 5B(i) and 5(E) of the Agreement, and the inaccuracies in the representations and warranties contained in Sections 8D and 8K of the Agreement, in each case solely to the extent caused by the non-cash charges incurred by the Company in an aggregate amount of no more than $97,100,000 with respect to the fiscal quarter ended June 30, 2002 or prior periods on a cumulative basis; provided, however, that with respect to Section 5E, such waiver is limited to those laws, rules and regulations enacted for the primary purpose of regulating or governing audit and/or financial reporting requirements for similarly-situated public companies; and provided further that all of the foregoing waivers expressly exclude any conduct, actions or omissions on the part of the Company, its affiliates, or any of their respective officers, directors or employees in connection with the matters contemplated hereby, that constitute fraud, willful misconduct or criminal charges for which any such Person is indicted or otherwise prosecuted. 4. The Company hereby represents and warrants that, after giving effect to this Amendment and Waiver Agreement, no Default or Event of Default will have occurred or be continuing. Except as expressly provided herein (and solely with respect to any applicable period referenced herein), the Agreement shall remain in full force and effect and this Amendment and Waiver Agreement shall not operate as a waiver of any right, power or remedy of any Holder, nor constitute a waiver of any provision of the Agreement. 5. In consideration for the amendment set forth in Section 1.B, the Company shall pay pro rata to the Holders a fee in an aggregate amount equal to the product of (x) the aggregate outstanding principal amount of the Notes and (y) 0.125%. 6. The Company agrees to pay all out-of-pocket expenses incurred by the Holders in connection with this Amendment and Waiver Agreement in accordance with the terms of Section 11B of the Agreement. 7. This Amendment and Waiver Agreement shall be construed and enforced in accordance with the laws of the State of New York, without regard to conflicts of law provisions. 8. Each of the Holders agrees to keep confidential, in accordance with Section 11H of the Agreement, all information disclosed by the Company to the Holders in connection with this Amendment and Waiver Agreement relating to the subject matter hereof (other than any such information which was publicly known or otherwise known to such Holder at the time of disclosure, or (ii) which subsequently becomes publicly known through no act or omission by such Holder). 9. This Amendment and Waiver Agreement shall be effective as of the date first above written and the Agreement shall be deemed amended upon delivery to the Holders of a fully executed copy of this Amendment and Waiver Agreement and the fee set forth in Section 5.