Exhibit 10.1

 

EXECUTION COPY

 

THIRD AMENDMENT TO CREDIT AGREEMENT

 

THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of December 21, 2010 by and among DYNAVOX SYSTEMS LLC, a Delaware limited liability company (“Borrower”), DYNAVOX INTERMEDIATE LLC, a Delaware limited liability company (“Holdings”), DynaVox Services Inc., a Delaware corporation (“Services”), Blink-Twice LLC, a Delaware limited liability company (“Blink-Twice”), Mayer-Johnson LLC, a Delaware limited liability company (“Mayer-Johnson”), DynaVox International Holdings Inc., a Delaware corporation (“International”), EYE RESPONSE TECHNOLOGIES, INC., a Virginia corporation (“ERT”; Borrower, Holdings, Services, Blink-Twice, Mayer-Johnson, International and ERT are collectively referred to herein as the “Credit Parties” and each individually as a “Credit Party”), GE BUSINESS FINANCIAL SERVICES INC. (in its individual capacity, “GE BFS”), as agent (in such capacity, together with its successors and assigns in such capacity, the “Agent”) for the several financial institutions from time to time party to the Credit Agreement (collectively, the “Lenders” and each individually a “Lender”), and for itself as a Lender, and such Lenders signatory hereto.

 

W I T N E S S E T H:

 

WHEREAS, Borrower, Agent and the Lenders have entered into that certain Third Amended and Restated Credit Agreement dated as of June 23, 2008 (as amended, modified, restated or otherwise supplemented from time to time, the “Credit Agreement”);

 

WHEREAS, Borrower has requested that Agent and the Required Lenders amend the Credit Agreement in certain respects as set forth herein; and

 

WHEREAS, Agent and the Required Lenders are willing to make such amendments subject to the terms, conditions and other provisions hereof.

 

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:

 

I.                                         Defined Terms.  Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Credit Agreement (as amended hereby).

 

II.                                     Amendment.  Subject to the conditions set forth below, and in reliance upon the representations and warranties of the Credit Parties set forth in the Credit Agreement and in this Amendment, the Credit Agreement is hereby amended as follows:

 

(1)                                 Section 4.1(a) of the Credit Agreement is hereby deleted in its entirety and the following Section 4.1(a) is substituted in lieu thereof

 

“(a)                            as soon as practicable and in any event within thirty (30) days after the end of each month (including the last month of Borrower’s Fiscal Year), commencing with the month ended November 30, 2010, a consolidated balance sheet of Ultimate Holdings and its Subsidiaries as at the end of such month and the related consolidated statements of

 











 

operations and cash flows for such month, and for the portion of the Fiscal Year ended at the end of such month (i) with sufficient detail and specificity to distinguish and permit Agent to readily discern the revenues and gross profit of Borrower’s different business and product lines, including the business operations and performance of Mayer-Johnson LLC and (ii) setting forth, in each case, to the extent comparable figures are available, in comparative form the figures for the corresponding periods of the previous Fiscal Year and the figures for such month and for such portion of the Fiscal Year ended at the end of such month set forth in the annual operating and capital expenditure budgets and cash flow forecast delivered pursuant to Section 4.1(m), all of the foregoing in reasonable detail and certified by a Responsible Officer as fairly presenting, in all material respects, the financial condition and results of operations of Ultimate Holdings and its Subsidiaries and as having been prepared in accordance with GAAP applied on a basis consistent with the audited financial statements of Ultimate Holdings, subject to changes resulting from audit and normal year-end adjustments and the absence of footnote disclosures;”

 

(2)                                 Exhibit B to the Credit Agreement is deleted in its entirety and Exhibit A attached hereto is substituted in lieu thereof.

 

III.                                 Conditions Precedent.  The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent or concurrent:

 

(1)                                 the execution and delivery of this Amendment by each of the Credit Parties, Agent and the Required Lenders;

 

(2)                                 all representations and warranties by any Credit Party contained herein or in any other Financing Document shall be true and correct in all material respects on and as of the date hereof or, to the extent such representations and warranties expressly relate to an earlier date, on and as of such earlier date;

 

(3)                                 before and after giving effect hereto, no Default or Event of Default under the Credit Agreement shall have occurred and be continuing;

 

(4)                                 receipt by Agent on behalf of each Lender that executes and returns to Agent a counterpart signature page of this Amendment no later than 4:00 p.m. Eastern Standard Time on December 21, 2010 of a fully earned, non-refundable amendment fee in the aggregate amount of 0.125% of the Revolving Loan Commitments of and the Term Loan held by such Lenders on the date hereof, which fee is due and payable in full on the date hereof;

 

(5)                                 Borrower and Agent shall have entered into a fee letter in form and substance acceptable to Agent;

 

(6)                                 receipt by Agent of the items required to be delivered pursuant to Section 4.1(a) of the Credit Agreement (after giving effect to this Amendment) for the month ended October 31, 2010; and

 

(7)                                 receipt by Agent on the date hereof of the fees set forth in that certain fee letter dated as of the date hereof by and between Borrower and Agent.

 

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IV.                                Representations and Warranties.  Each Credit Party, jointly and severally, hereby represents and warrants to Agent and each Lender as follows:

 

(1)                                 The execution, delivery and performance by each Credit Party of this Amendment and each other document, agreement and instrument executed by such Credit Party in connection herewith are within its powers, have been duly authorized by all necessary action pursuant to its Organizational Documents, require no further action by or in respect of, or filing with, any governmental body, agency or official except for actions or filings, the failure with respect to which could not reasonably be expected to have a Material Adverse Effect, and do not violate, conflict with or cause a breach or a default under any provision of applicable law or regulation or of the Organizational Documents of any Credit Party or of any agreement, judgment, injunction, order, decree or other instrument binding upon it, except for such violations, conflicts, breaches or defaults as could not reasonably be expected to have a Material Adverse Effect;

 

(2)                                 this Amendment and each other document, agreement and instrument executed by such Credit Party in connection herewith constitutes a valid and binding agreement or instrument of such Credit Party, enforceable against such Credit Party in accordance with its respective terms, subject to the effects of (i) insolvency, fraudulent conveyance, reorganization, moratorium and bankruptcy or other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) any implied covenant of good faith and fair dealing; and

 

(3)                                 no Default or Event of Default exists.

 

V.                                    No Waiver.  Except as expressly set forth herein, nothing contained herein shall be deemed to constitute a waiver of compliance with any term or condition contained in the Credit Agreement or any of the other Financing Documents or constitute a course of conduct or dealing among the parties.  Except as expressly stated herein, (a) Agent and Lenders reserve all rights, privileges and remedies under the Financing Documents, and (b) the Credit Agreement and other Financing Documents remain unmodified and in full force and effect.

 

VI.                                References.  Any reference to the Credit Agreement contained in any document, instrument or agreement executed in connection with the Credit Agreement, including, without limitation, any Financing Document, shall be deemed to be a reference to the Credit Agreement as modified by this Amendment.  This Amendment shall be deemed to be a Financing Document.

 

VII.                            Counterparts.  This Amendment may be executed and delivered via facsimile or other electronic transmission with the same force and effect as if an original were executed and may be executed by one or more of the parties to this Amendment and any number of separate counterparts, each of which when so executed, shall be deemed an original and all said counterparts when taken together shall be deemed to constitute but one and the same instrument.

 

VIII.                        Successors and Assigns.  This Amendment shall be binding upon and inure to the benefit of Borrower and each other Credit Party and their successors and assigns and the Agent and the Lenders and their successors and assigns.

 

3











 

IX.                                GOVERNING LAW.  THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

X.                                    Severability.  Wherever possible, each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Amendment.

 

XI.                                Reaffirmation. Each of the Credit Parties as debtor, grantor, pledgor, guarantor, assignor, or in other any other similar capacity in which such Credit Party grants liens or security interests in its property or otherwise acts as accommodation party or guarantor, as the case may be, hereby: (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the Financing Documents to which it is a party (after giving effect hereto) and (ii) to the extent such Credit Party granted liens on or security interests in any of its property pursuant to any such Financing Document as security for or otherwise guaranteed the Obligations under or with respect to the Financing Documents, ratifies and reaffirms such guarantee and grant of security interests and liens and confirms and agrees that such security interests and liens hereafter secure all of the Obligations.  Each of the Credit Parties hereby consents to this Amendment and acknowledges that each of the Financing Documents remains in full force and effect and is hereby ratified and reaffirmed.  Except as specifically provided hereunder, the execution of this Amendment shall not operate as a waiver of any right, power or remedy of the Agent or Lenders, constitute a waiver of any provision of any of the Financing Documents or serve to effect a novation of the Obligations.

 

— Remainder of Page Intentionally Blank; Signature Page Follows —

 

4











 

IN WITNESS WHEREOF, each of the undersigned has executed this Amendment as of the date set forth above.

 

	
 
    	
BORROWER:
    
	
 
    	
 
    
	
 
    	
DYNAVOX   SYSTEMS LLC
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Kenneth D. Misch
    
	
 
    	
 
    	
Name:
    	
Kenneth   D. Misch
    
	
 
    	
 
    	
Title:   
    	
Chief   Financial Officer
    
	
 
    	
 
    	
 
    
	
 
    	
OTHER   LOAN PARTIES:
    
	
 
    	
 
    
	
 
    	
DYNAVOX   INTERMEDIATE LLC
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Kenneth D. Misch
    
	
 
    	
 
    	
Name:
    	
Kenneth   D. Misch
    
	
 
    	
 
    	
Title:   
    	
Chief   Financial Officer
    
	
 
    	
 
    	
 
    
	
 
    	
DYNAVOX   SERVICES INC.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Kenneth D. Misch
    
	
 
    	
 
    	
Name:   
    	
Kenneth   D. Misch
    
	
 
    	
 
    	
Title:   
    	
Chief   Financial Officer
    
	
 
    	
 
    	
 
    
	
 
    	
BLINK-TWICE   SYSTEMS LLC
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Kenneth D. Misch
    
	
 
    	
 
    	
Name:   
    	
Kenneth   D. Misch
    
	
 
    	
 
    	
Title:   
    	
Chief   Financial Officer
    
	
 
    	
 
    	
 
    
	
 
    	
EYE   RESPONSE TECHNOLOGIES, INC.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Kenneth D. Misch
    
	
 
    	
 
    	
Name:   
    	
Kenneth   D. Misch
    
	
 
    	
 
    	
Title:   
    	
Chief   Financial Officer
    


 











 

	
 
    	
MAYER-JOHNSON   LLC
    
	
 
    	
 
    
	
 
    	
By:   DynaVox Systems LLC, its sole member
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
  By:   
    	
/s/   Kenneth D. Misch
    
	
 
    	
 
    	
Name:   
    	
Kenneth   D. Misch
    
	
 
    	
 
    	
Title:   
    	
Chief   Financial Officer
    
	
 
    	
 
    	
 
    
	
 
    	
DYNAVOX   INTERNATIONAL HOLDINGS INC.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Kenneth D. Misch
    
	
 
    	
 
    	
Name:   
    	
Kenneth   D. Misch
    
	
 
    	
 
    	
Title:   
    	
Chief   Financial Officer
    


 











 

IN WITNESS WHEREOF, each of the undersigned has executed this Amendment as of the date set forth above.

 

 

	
 
    	
GE   BUSINESS FINANCIAL SERVICES INC., as the Agent and a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Keith Bird
    
	
 
    	
Name:
    	
Keith   Bird
    
	
 
    	
Its:
    	
Duly   Authorized Signatory
    


 











 

IN WITNESS WHEREOF, each of the undersigned has executed this Amendment as of the date set forth above.

 

	
 
    	
PNC Bank, N.A., as a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Brent R. Schweikle
    
	
 
    	
Name:
    	
Brent   R. Schweikle
    
	
 
    	
Title:
    	
Vice President
    


 











 

IN WITNESS WHEREOF, each of the undersigned has executed this Amendment as of the date set forth above.

 

	
 
    	
TriState Capital Bank, as a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Anne M. Westbrook
    
	
 
    	
Name:
    	
Anne   M. Westbrook
    
	
 
    	
Title:
    	
Relationship Manager
    


 











 

IN WITNESS WHEREOF, each of the undersigned has executed this Amendment as of the date set forth above.

 

	
 
    	
Bank of Montreal, as a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Andrew J. Pluta
    
	
 
    	
Name:
    	
Andrew   J. Pluta
    
	
 
    	
Title:
    	
Director
    


 












 

Exhibit A

 

EXHIBIT B TO CREDIT AGREEMENT (COMPLIANCE CERTIFICATE)

 

COMPLIANCE CERTIFICATE

 

DYNAVOX SYSTEMS LLC

 

DATE:                  ,        

 

This certificate is given by                                           , a Responsible Officer of DynaVox Systems LLC (“Borrower”), pursuant to Section 4.1(c) of that certain Third Amended and Restated Credit Agreement dated as of June 23, 2008 among Borrower, the Lenders from time to time party thereto and GE Business Financial Services Inc. (formerly known as Merrill Lynch Business Financial Services Inc.), as Agent for Lenders (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).  Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement.

 

The undersigned Responsible Officer hereby certifies to Agent and Lenders that:

 

(a)             the financial statements delivered with this certificate in accordance with Section 4.1(b) and/or 4.1(n) of the Credit Agreement fairly present in all material respects the results of operations and financial condition of Ultimate Holdings and its direct and indirect Subsidiaries as of the dates of such financial statements;

 

(b)             I have reviewed the terms of the Credit Agreement and have made, or caused to be made under my supervision, a review in reasonable detail of the transactions and conditions of Borrower and the Subsidiaries during the accounting period covered by such financial statements;

 

(c)                                  such review has not disclosed the existence during or at the end of such accounting period, and I have no knowledge of the existence as of the date hereof, of any condition or event that constitutes a Default or an Event of Default, except as set forth in Schedule 1 hereto, which includes a description of the nature and period of existence of such Default or an Event of Default and what action Borrower has taken, is undertaking and proposes to take with respect thereto; and

 

(d)                                 to the extent that this Certificate is delivered with respect to the end of a fiscal quarter of Borrower, Borrower is in compliance with the covenants contained in Article VI of the Credit Agreement, as demonstrated by the calculation of such covenants below, except as set forth in Schedule 1 hereto.

 

IN WITNESS WHEREOF, the undersigned officer has executed and delivered this certificate this          day of                       ,         .

 

	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title
    	
 
    	
  of Borrower
    


 











 

CAPITAL EXPENDITURES

 

(SECTION 6.1)

 

	
Capital Expenditures for the applicable   measurement period (the “Defined Period”)   are defined as follows:
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
Amount   capitalized during the Defined Period by Borrower and its Subsidiaries as   capital expenditures for property, plant, and equipment or similar fixed   asset accounts, including any such expenditures by way of acquisition of a   Person or by way of assumption of Debt or other obligations, to the extent   reflected as plant, property and equipment
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Plus:
    	
 
    	
deposits   made in the Defined Period in connection with property, plant, and equipment;   less deposits of a prior period included above
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Less:
    	
 
    	
Net   Cash Proceeds of Asset Dispositions received during the Defined Period which   (i) Borrower or a Subsidiary is permitted to reinvest pursuant to the   terms of the Credit Agreement and (ii) are included in capital   expenditures above
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Proceeds   of Property Insurance Policies received during the Defined Period which   (i) Borrower or a Subsidiary is permitted to reinvest pursuant to the   terms of the Credit Agreement and (ii) are included in capital   expenditures above
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Capital   Expenditures
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
Less:
    	
 
    	
Portion   of Capital Expenditures financed during the Defined Period under Capital   Leases or other Debt (Debt, for this purpose, does not include drawings under   the Revolving Loan Commitment)
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Unfinanced   Capital Expenditures (used in calculation of Operating Cash Flow (defined in   Section 6.3 of the Compliance Certificate))
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
Capital Expenditures (from above)
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
Permitted Capital Expenditures
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
In Compliance
    	
 
    	
Yes/No
    	
 
    


 











 

EBITDA

 

	
EBITDA for the applicable measurement period (the   “Defined Period”) is defined as   follows:
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
Net   income (or loss) for the Defined Period of Borrower and its Subsidiaries, but   excluding: (a) the income (or loss) of any Person (other than   Subsidiaries of Borrower) in which Borrower or any of its Subsidiaries has an   ownership interest unless received by Borrower or its Subsidiary in a cash   distribution; and (b) the income (or loss) of any Person accrued prior   to the date it became a Subsidiary of Borrower or is merged into or   consolidated with Borrower
    	
 
    	
$
    	
 
    	
 
    
					


 

	
 
    	
 
    	
 
    	
 
    
	
Plus:
    	
 
    	
Any   provision for (or less any benefit from) income and franchise taxes included   in the determination of net income for the Defined Period
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Interest   expense, net of interest income, deducted in the determination of net income   for the Defined Period
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Amortization   and depreciation deducted in the determination of net income for the Defined   Period
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Losses   (or less gains) from Asset Dispositions or sales of securities included in   the determination of net income for the Defined Period (excluding sales,   expenses or losses related to current assets)
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Other   non-cash losses (or less gains) included in the determination of net income   for the Defined Period and for which no cash outlay (or cash receipt) is   foreseeable
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Expenses   and fees included in the determination of net income and incurred during the   Defined Period to consummate the transactions contemplated by the Operative   Documents, but solely to the extent disclosed in writing to Agent prior to   the Third Restatement Effective Date
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Extraordinary   losses (or less gains) included in the determination of net income during the   Defined Period, net of related tax effects
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Unusual   or non-recurring losses, expenses, charges, severance costs, signing costs,   retention or completion bonuses, transition costs and relocation costs; provided,   that, the aggregate amount of such add-backs for any Defined Period shall not   exceed ten percent (10%) of EBITDA (without giving effect to this add-back)
    	
 
    	
 
    	
 
    


 











 

	
 
    	
 
    	
Non-cash   expenses resulting from the grant of stock and stock options and other compensation   to management personnel of Borrower or its Subsidiaries pursuant to a written   plan or agreement or the treatment of such options under variable plan   accounting for the Defined Period
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Step-up   in asset valuation as a result of purchase accounting applied during the   Defined Period in connection with any Permitted Acquisition
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Payments   under non-competition agreements (including, without limitation, the Enkidu   Non-Compete Agreements) for the Defined Period
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Non-cash   asset write-offs or impairment charges for the Defined Period
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Management   fees to the Investors paid in cash during the Defined Period to the extent   permitted to be paid under Section 5.13 of the Credit Agreement and to   the extent deducted in the determination of net income for the Defined Period
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
EBITDA,   if any, of any Person acquired during the Defined Period attributable to a   Permitted Acquisition (including the portion thereof occurring prior to such   Permitted Acquisition) with such pro forma adjustments as are reasonably   acceptable to Agent based upon data presented to Agent to its reasonable   satisfaction
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Non-recurring   expenses and fees incurred during the Defined Period attributable to a   Permitted Acquisition to the extent such non-recurring expenses and fees are   disclosed in writing to Agent in reasonable detail
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Non-recurring   expenses and fees incurred during the Defined Period attributable to the IPO   and the redemption of the Third Restatement Subordinated Debt with the   proceeds of the IPO to the extent such non-recurring expenses and fees are   disclosed in writing to Agent in reasonable detail
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
EBITDA for the Defined Period
    	
 
    	
$
    	
 
    


 












 

FIXED CHARGE COVERAGE RATIO

 

(SECTION 6.3)

 

	
Fixed Charge Coverage Ratio for the applicable   measurement period (the “Defined Period”)   is defined as follows:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Fixed   Charges: Cash interest expense   ($            ),   net of interest income   ($            )   included in the determination of net income of Borrower and its Subsidiaries   for the Defined Period (“Total Interest   Expense”)
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Plus:
    	
Cash   taxes paid during the Defined Period (“Cash Taxes”)
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
Scheduled   payments of principal for the Defined Period with respect to all Debt   (including the portion of scheduled payments under Capital Leases allocable   to principal but excluding prepayments and excluding scheduled repayments of   Revolving Loans and other Debt subject to re-borrowing to the extent not   accompanied by a concurrent and permanent reduction of the Revolving Loan   Commitment (or equivalent loan commitment)) (“Payments   of Principal”) (for the sake of clarity, scheduled payments of   principal with respect to the Term Loan shall be equal to the amounts set   forth in Section 2.6(b) of the Credit Agreement with respect to the   applicable Defined Period after giving effect to any reduction thereof as a   result of any optional or mandatory prepayments)
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
Restricted   Distributions (other than (a) loans to officers and employees permitted   by Section 5.4(c) of the Credit Agreement, (b) distributions   to Holdings for the repurchase of equity interests or options therefor from   directors or employees permitted by Section 5.4(a) of the Credit   Agreement and (c) solely for the purpose of the Defined Period ending   December 31, 2010, a Restricted Distribution permitted under   Section 5.4(e) of the Credit Agreement made by Borrower in cash in   an amount of $10,000,000 made in March, 2010) made by Borrower in cash during   the Defined Period
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
Management   fees to the Investors paid in cash during the Defined Period to the extent   permitted to be paid under Section 5.13 of the Credit Agreement and to   the extent deducted in the determination of net income for the Defined Period
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Fixed Charges
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Operating Cash Flow:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
EBITDA for the Defined Period (calculated in the   manner required by the Compliance Certificate)
    	
 
    	
$
    	
 
    	
 
    


 











 

	
Less:
    	
Unfinanced   Capital Expenditures for the Defined Period (calculated in the manner   required by the Compliance Certificate)
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Operating Cash Flow
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Fixed Charge Coverage Ratio (Ratio of Operating   Cash Flow to Fixed Charges) for the Defined Period
    	
 
    	
 
    	
    to  1.0
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Minimum Fixed Charge Coverage for the Defined   Period
    	
 
    	
 
    	
    to  1.0
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
In Compliance
    	
 
    	
 
    	
Yes/No
    	
 
    


 











 

NET SENIOR DEBT TO EBITDA RATIO
 (Section 6.4)

 

	
Net Senior Debt:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Net Total Debt (calculated in the manner required   by Section 6.5 of the Compliance Certificate)
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Less:
    	
The   aggregate principal amount of the Third Restatement Subordinated Debt, the   Debt evidenced by the Enkidu Seller Note  and any   other subordinated debt permitted under the Credit Agreement as of the last   day of the Defined Period
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Net Senior Debt
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
EBITDA for the Defined Period (calculated in the   manner required by the Compliance Certificate)
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Ratio of Net Senior Debt to EBITDA for the Defined   Period
    	
 
    	
 
    	
    to  1.0
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Maximum Permitted Ratio of Net Senior Debt to   EBITDA for the Defined Period
    	
 
    	
 
    	
    to  1.0
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
In Compliance
    	
 
    	
 
    	
Yes/No
    	
 
    


 











 

NET TOTAL DEBT TO EBITDA RATIO

 

(SECTION 6.5)

 

	
Net Total Debt:
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Average   daily principal balance of the Revolving Loans for the one month period   ending on the last day of the applicable measurement period (the “Defined Period”)
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Plus:
    	
 Outstanding principal balance of the Term   Loan as of the last day of the Defined Period
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
Outstanding   principal balance of all other Debt of Borrower and its Subsidiaries as of   the last day of the Defined Period
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Less:
    	
(a) Borrower’s   cash and Cash Equivalents of up to $5,000,000 as indicated on Borrower’s most   recent balance sheet submitted pursuant to Section 4.1 of the Credit   Agreement if EBITDA for the Defined Period (calculated in the manner required   by the Compliance Certificate) is greater than $30,000,000, and (b) $0   if EBITDA for the Defined Period (calculated in the manner required by the   Compliance Certificate) is equal to or less than $30,000,000
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Net Total Debt
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
EBITDA for the Defined Period (calculated in the   manner required by the Compliance Certificate)
    	
 
    	
$
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Ratio of Net Total Debt to EBITDA for the Defined   Period
    	
 
    	
 
    	
    to 1.0
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Maximum Permitted Ratio of Net Total Debt to   EBITDA for the Defined Period
    	
 
    	
 
    	
    to 1.0
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
In Compliance
    	
 
    	
 
    	
Yes/No