GUARANTY IS SECURED BY A
PLEDGE OF ALL OF ITS CAPITAL SECURITIES AND SUBSTANTIALLY ALL OF ITS REAL AND
PERSONAL PROPERTY, IN EACH CASE IN ACCORDANCE WITH SECTION 11.10;
(B)
INVESTMENTS CONSTITUTING DEBT PERMITTED BY SECTION 11.1;
(C)
CONTINGENT LIABILITIES CONSTITUTING DEBT PERMITTED BY SECTION 11.1
OR LIENS PERMITTED BY SECTION 11.2;
(D)
CASH EQUIVALENT INVESTMENTS;
(E)
BANK DEPOSITS IN THE ORDINARY COURSE OF BUSINESS, PROVIDED THAT,
COMMENCING SIXTY (60) DAYS AFTER THE CLOSING DATE, THE AGGREGATE AMOUNT OF ALL
SUCH DEPOSITS WHICH ARE MAINTAINED WITH ANY BANK OTHER THAN A LENDER SHALL NOT
AT ANY TIME EXCEED THE AMOUNTS DESCRIBED IN SECTION 10.10 HEREOF;
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(F)
INVESTMENTS IN SECURITIES OF ACCOUNT DEBTORS RECEIVED PURSUANT TO
ANY PLAN OF REORGANIZATION OR SIMILAR ARRANGEMENT UPON THE BANKRUPTCY OR
INSOLVENCY OF SUCH ACCOUNT DEBTORS;
(G)
INVESTMENTS LISTED ON SCHEDULE 11.11 AS OF THE CLOSING DATE;
(H)
EXTENSIONS OF CREDIT UPON CUSTOMARY TERMS TO THEIR CUSTOMERS IN
THE ORDINARY COURSE OF THEIR BUSINESS; AND
(I)
EXTENSIONS OF CREDIT TO OFFICERS AND EMPLOYEES IN ACCORDANCE WITH
POLICIES IN EFFECT ON THE DATE OF THIS AGREEMENT TO THE EXTENT THE
ADMINISTRATIVE AGENT HAS RECEIVED A WRITTEN COPY OF SUCH POLICY;
provided that (x) any Investment which when made complies with the requirements
of the definition of the term "Cash Equivalent Investment" may continue to be
held notwithstanding that such Investment if made thereafter would not comply
with such requirements; (y) no Investment otherwise permitted by clause (b),
(c), (g), (h) or (i) of this Section 11.11 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, AND NOT
PERMIT ANY OTHER LOAN PARTY TO, MAKE OR AGREE TO ANY AMENDMENT TO OR
MODIFICATION OF, OR WAIVE ANY OF ITS RIGHTS UNDER (A) ANY AGREEMENT OR
INSTRUMENT GOVERNING ANY SUBORDINATED DEBT WHICH WOULD (I) HAVE THE EFFECT OF
(X) PROVIDING FOR EARLIER PAYMENT IN RESPECT OF PRINCIPAL OR REDEMPTIONS OR
OTHERWISE, (Y) REQUIRING COLLATERAL OR GUARANTEES TO SECURE ANY SUBORDINATED
DEBT OR (Z) INCREASING THE INTEREST RATE PAYABLE WITH RESPECT TO ANY
SUBORDINATED DEBT OR (II) OTHERWISE ADVERSELY AFFECT THE INTEREST OF THE LENDERS
IN ANY MATERIAL RESPECT, OR (B) THE MINING ROYALTY AGREEMENT WITHOUT PROMPT
NOTICE THEREOF TO THE ADMINISTRATIVE AGENT (SUCH NOTICE TO INCLUDE A DESCRIPTION
OF THE AMENDMENT, MODIFICATION OR WAIVER).
11.13
FINANCIAL COVENANTS.
11.13.1
MINIMUM ADJUSTED EBITDA.
NOT PERMIT ADJUSTED EBITDA FOR ANY
COMPUTATION PERIOD TO BE LESS THAN THE APPLICABLE AMOUNT SET FORTH BELOW FOR
SUCH COMPUTATION PERIOD:
Computation
Period Ending
Adjusted EBITDA
June 30, 2009
$
7,500,000
September 30, 2009
$
8,150,000
December 31, 2009 and each Fiscal Quarter end thereafter
$
6,500,000
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11.13.2
MINIMUM FIXED CHARGE COVERAGE RATIO.
NOT PERMIT THE FIXED
CHARGE COVERAGE RATIO FOR ANY COMPUTATION PERIOD TO BE LESS THAN 1.30 TO 1.00
FOR SUCH COMPUTATION PERIOD.
11.13.3
MINIMUM TANGIBLE NET WORTH.
NOT PERMIT TANGIBLE NET WORTH AS
OF THE LAST