(y) no Investment otherwise permitted by clause (b)
or (c) shall be permitted to be made if, immediately before or after giving
effect thereto, any Event of Default or Unmatured Event of Default exists.
11.12
RESTRICTION OF AMENDMENTS TO CERTAIN DOCUMENTS.
NOT AMEND OR
OTHERWISE MODIFY, OR WAIVE ANY RIGHTS UNDER, THE RELATED AGREEMENTS IF, IN ANY
CASE, SUCH AMENDMENT, MODIFICATION OR WAIVER COULD BE ADVERSE TO THE INTERESTS
OF THE LENDERS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY
SHALL NOT AMEND THE PURCHASE AGREEMENT IN ANY MANNER WHICH WOULD ACCELERATE THE
PAYMENT OF THE EARN-OUT OBLIGATIONS AND THE COMPANY SHALL NOT PREPAY THE
EARN-OUT OBLIGATIONS.
11.13
FISCAL YEAR.
NOT CHANGE ITS FISCAL YEAR.
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11.14
FINANCIAL COVENANTS.
11.14.1
EBITDA.
NOT PERMIT EBITDA FOR ANY COMPUTATION PERIOD TO BE LESS THAN
THE APPLICABLE AMOUNT SET FORTH BELOW FOR SUCH COMPUTATION PERIOD:
Computation
Period Ending
EBITDA
March 31, 2007
$
7,053,000
June 30, 2007
$
14,105,000
September 30, 2007
$
21,753,000
December 31, 2007
$
29,400,000
March 31, 2008
$
29,995,000
June 30, 2008
$
30,590,000
September 30, 2008
$
30,205,000
December 31, 2008
$
29,820,000
11.14.2
FIXED CHARGE COVERAGE RATIO.
NOT PERMIT THE FIXED CHARGE COVERAGE
RATIO FOR ANY COMPUTATION PERIOD TO BE LESS THAN 1.10:1.
11.14.3
TOTAL DEBT TO EBITDA RATIO.
NOT PERMIT THE TOTAL DEBT TO EBITDA
RATIO AS OF THE LAST DAY OF ANY FISCAL QUARTER TO EXCEED THE APPLICABLE RATIO
SET FORTH BELOW FOR THE FOUR CONSECUTIVE FISCAL QUARTERS ENDING ON SUCH DATE:
Fiscal Quarter
Ending
Total Debt to
EBITDA Ratio
March 31, 2007 through and including June 30, 2008
3.50:1.0
September 30, 2008 and thereafter
3:00:1.0
11.14.4
CAPITAL EXPENDITURES.
NOT PERMIT THE AGGREGATE AMOUNT OF ALL CAPITAL
EXPENDITURES MADE BY THE LOAN PARTIES IN ANY FISCAL YEAR TO EXCEED $15,000,000.
IF THE LOAN PARTIES DO NOT UTILIZE THE ENTIRE AMOUNT OF CAPITAL EXPENDITURES
PERMITTED IN ANY FISCAL YEAR, THE LOAN PARTIES MAY CARRY FORWARD, TO THE
IMMEDIATELY SUCCEEDING FISCAL YEAR ONLY, SUCH UNUTILIZED AMOUNT (WITH CAPITAL
EXPENDITURES MADE BY THE LOAN PARTIES IN SUCH SUCCEEDING FISCAL YEAR APPLIED
LAST TO SUCH UNUTILIZED AMOUNT).
SECTION 12.
EFFECTIVENESS; CONDITIONS OF LENDING, ETC.
The obligation of each Lender to make its Loans and of the Issuing Lender to
issue Letters of Credit is subject to the following conditions precedent:
12.1
INITIAL CREDIT EXTENSION.
THE OBLIGATION OF THE LENDERS TO MAKE
THE INITIAL LOANS AND THE OBLIGATION OF THE ISSUING LENDER TO ISSUE ITS INITIAL
LETTER OF CREDIT (WHICHEVER FIRST OCCURS) IS, IN ADDITION TO THE CONDITIONS
PRECEDENT SPECIFIED IN SECTION 12.2, SUBJECT TO THE CONDITIONS PRECEDENT THAT
(A) ALL DEBT TO BE REPAID HAS BEEN (OR CONCURRENTLY WITH THE INITIAL
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BORROWING WILL BE) PAID IN FULL, AND THAT ALL AGREEMENTS AND INSTRUMENTS
GOVERNING THE DEBT TO BE REPAID AND THAT ALL LIENS SECURING SUCH DEBT TO BE
REPAID HAVE BEEN (OR CONCURRENTLY WITH THE INITIAL BORROWING WILL BE) TERMINATED
AND (B) THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED (I) EVIDENCE, REASONABLY
SATISFACTORY TO THE