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 (b) Each Lender shall make available all amounts it is to Consolidated Total EBITDA Ratio as fund to the Borrower under any Borrowing in immediately available funds to the Administrative Agent at the end of such fiscal year or period, as Administrative Agent’s Office and the Administrative Agent will (except in the case may be for of Mandatory Borrowings and Borrowings to repay Unpaid Drawings under Letters of Credit) make available to the purpose Borrower, by depositing to an account designated by the Borrower to the Administrative Agent in writing, the aggregate of determining the Commitment Fee payable pursuant amounts so made available in Dollars. Unless the Administrative Agent shall have been notified by any Lender prior to Section 4.1(a); (iii) a specification the date of any change in such Borrowing that such Lender does not intend to make available to the identity Administrative Agent its portion of the Restricted SubsidiariesBorrowing or Borrowings to be made on such date, the Unrestricted SubsidiariesAdministrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date of Borrowing, and the Administrative Agent, in reliance upon such assumption, may (in its sole discretion and without any obligation to do so) make available to the Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender and the Administrative Agent has made available same to the Borrower, the Specified SubsidiariesAdministrative Agent shall be entitled to recover such corresponding amount from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Immaterial Subsidiaries Administrative Agent shall promptly notify the Borrower and the Foreign Subsidiaries as at Borrower shall immediately pay such corresponding amount to the end of Administrative Agent. The Administrative Agent shall also be entitled to recover from such fiscal year Lender or periodthe Borrower, as the case may be, interest on such corresponding amount in respect of each day from the Restricted Subsidiaries, date such corresponding amount was made available by the Unrestricted Subsidiaries, the Specified Subsidiaries, the Immaterial Subsidiaries and the Foreign Subsidiaries, respectively, provided Administrative Agent to the Lenders on the Closing Date or the most recent fiscal year or periodBorrower, 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 date such corresponding amount is recovered by the definition thereof and (vi) the amount of any Pro Forma Adjustment not previously set forth in Administrative Agent, at 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 rate per annum equal to (i) in reasonable detail if paid by such Lender, 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 Federal Funds Effective Rate or (ii) if paid by the information required pursuant to Borrower, the then-applicable rate of interest, calculated in accordance with Section 2 of 2.8, for 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 berespective Loans.

Execution Copy. Total Debt Lender represents to Consolidated Total EBITDA Ratio the Administrative Agent that it has, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Borrower, any Guarantor and any other Credit Party and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the end of time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Credit Documents, and to make such fiscal year or periodinvestigation as it deems necessary to inform itself as to the business, 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 operations, property, financial and other condition and creditworthiness of the Restricted SubsidiariesBorrower, the Unrestricted Subsidiariesany Guarantor and any other Credit Party. Except for notices, the Specified Subsidiaries, the Immaterial Subsidiaries reports 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 other documents expressly required to be furnished to the Lenders on by the Closing Date Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the most recent fiscal year business, assets, operations, properties, financial condition, prospects or periodcreditworthiness of the Borrower, as any Guarantor or any other Credit Party that may come into the case may bepossession of the Administrative Agent or any of its officers, (iv) directors, employees, agents, attorneys-in-fact or Affiliates. Notwithstanding anything herein to the then applicable pricing levelcontrary, (v) each Lender also acknowledges that the calculations lien and basis, in reasonable detail, security interest granted to the Collateral Agent pursuant to the Security Documents and the existence of any “run rate” cost savings added back to Consolidated EBITDA pursuant right or remedy by the Collateral Agent thereunder are subject to the provisions of clause (a)(xi) the Intercreditor Agreement. In the event of a conflict between the terms of the definition thereof Intercreditor Agreement 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 detailSecurity Document, the calculations and basis therefor. At the time terms of the delivery Intercreditor Agreement shall govern and control. Each Lender hereby authorizes the Collateral Agent to enter into the Intercreditor Agreement on behalf 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 beLender.

Execution Copy. Any increase or decrease in the Applicable Margin resulting from a change in the Consolidated Total Debt to Consolidated Total EBITDA Ratio shall become effective as of the first Business Day immediately following the date Section 8.1 Financials are delivered to the Administrative Agent pursuant to Sections 8.1(a) and 8.1(b); provided that at the end option of such fiscal year or periodthe Required Lenders, the highest Pricing Level (as set forth in the case may be for tables above) shall apply (i) as of the purpose of determining first Business Day after the Commitment Fee payable date on which Section 8.1 Financials were required to have been delivered but have not been delivered pursuant to Section 4.1(a); 8.1 and shall continue to so apply to and including the date on which such Financials Section 8.1 Financials are so delivered (iii) a specification of any change and thereafter the Pricing Level otherwise determined 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 accordance with this 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(ashall apply), 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) as of the information required pursuant first Business Day after an Event of Default under Section 10 shall have occurred and be continuing and the Administrative Agent has notified that the highest Pricing Level applies, and shall continue to so apply to but excluding the date on which such Event of Default shall cease to be continuing (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply). In the event that the Administrative Agent and the Borrower determine that any Section 8.1 Financials previously delivered were incorrect or inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then (i) the Borrower shall as soon as practicable deliver to the Administrative Agent the correct Section 8.1 Financials for such Applicable Period, (ii) the Applicable Margin shall be determined as if the Pricing Level for such higher Applicable Margin were applicable for such Applicable Period, and (iii) the Borrower shall within 3 Business Days of demand thereof by the Administrative Agent pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with this Agreement. This paragraph shall not limit the rights of the Administrative Agent and Lenders with respect 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 2.8(c) and Section 9.1(d), as the case may be10.