including September 30, 2009
5.50 to 1.00
October 1, 2009 and thereafter
5.00 to 1.00
(B)
INTEREST COVERAGE RATIO.
THE BORROWER AND ITS CONSOLIDATED
SUBSIDIARIES SHALL NOT PERMIT THE RATIO (THE "INTEREST COVERAGE RATIO") OF
(I) ADJUSTED CONSOLIDATED EBITDA FOR ANY FOUR (4) CONSECUTIVE FISCAL QUARTER
PERIOD ENDING AS OF THE LAST DAY OF ANY FISCAL QUARTER ENDING DURING THE PERIODS
DESCRIBED BELOW TO (II) INTEREST EXPENSE FOR SUCH PERIOD ENDING AS OF SUCH DATE,
TO BE LESS THAN THE CORRESPONDING RATIO SET FORTH BELOW OPPOSITE SUCH PERIOD:
Period
Ratio
July 16, 2007 through and including December 31, 2008
1.75 to 1.00
January 1, 2009 and thereafter
2.00 to 1.00
(D)
AMENDMENT TO SECTION 10.1(N)
SECTION 10.1(N) OF THE AGREEMENT IS
HEREBY AMENDED AND RESTATED TO READ AS FOLLOWS:
(N)
CHANGE OF CONTROL.
A CHANGE IN CONTROL PURSUANT TO
SECTION 7.1(J) (OR SUCH COMPARABLE SECTION)
OF THE DOMESTIC CREDIT AGREEMENT
SHALL OCCUR; OR
2
(E)
AMENDMENTS TO EXHIBIT "A" OF THE AGREEMENT.
(I)
THE FOLLOWING
DEFINITIONS IN EXHIBIT "A" OF THE AGREEMENT ARE HEREBY AMENDED AND RESTATED IN
THEIR ENTIRETY, TO READ AS FOLLOWS:
"Adjusted Consolidated EBITDA" means EBITDA adjusted as required or permitted by
Regulation S-X of the 1933 Act, but in any event in a manner consistent with the
Borrower's applicable filings submitted with the Securities and Exchange
Commission.
"Domestic Credit Agreement" shall mean the Credit Agreement dated as of June 12,
2007, among the Borrower, the other Loan Parties from time to time party
thereto, the financial institutions from time to time party thereto and LaSalle
Bank National Association, as Administrative Agent, Swing Line Lender and an
Issuing Lender, as the same may be amended, restated, supplemented, modified,
refunded, refinanced or replaced, in whole or in part, from time to time.
"Domestic Lenders" shall mean LaSalle Bank National Association, as
administrative agent, and other agents, arrangers and lenders now or hereafter
party to the Domestic Credit Agreement.
"EBITDA" means, with respect to any period, as determined in accordance with
GAAP, the sum of the amounts for such period of Net Income, (a) plus, without
duplication and to the extent reflected as a charge in the consolidated
statement of such Net Income for such period: (i) depreciation, depletion and
amortization expense, (ii) federal, state, local and foreign income taxes, (iii)
Interest Expense, (iv) transaction fees and expenses incurred in connection with
the Transactions (as defined in the Domestic Credit Agreement) to the extent not
capitalized and to the extent not exceeding in the aggregate $3,000,000, (v)
non-cash charges and losses (excluding any such non-cash charges or losses to
the extent (x) there were cash charges with respect to such charges and losses
in past accounting periods or (y) there is a reasonable expectation that there
will be cash charges with respect to such charges and losses in future
accounting periods), (vi) any amounts included in the calculation of Net Income
for amortization or non-cash charges for the write-off or impairment of
goodwill, intangibles or other purchase accounting