by
such date, then such requirements shall be determined by the Required Lenders in
their credit judgment.
(c)
Notwithstanding anything in this Section 6.2.4 to the
contrary, irrespective of the actual minimum EBITDA requirements agreed to in
writing by the Borrowers and the Required Lenders or, in the absence
4
of any such agreement, as determined by the Required Lenders in their credit
judgment pursuant to this Section 6.2.4, the failure of the Borrowers to comply
with the minimum EBITDA covenant that is being tested as of any date (each, an
"EBITDA Test Date") shall not constitute an Event of Default if the average
daily sum of all Obligations (including, without limitation, the aggregate
outstanding principal amount of Working Capital Facility Loans and the aggregate
outstanding amount of Letter of Credit Obligations), as determined by the Agent
as of the last day of the Fiscal Month immediately following such EBITDA Test
Date for the Fiscal Month then ending, is less than $10,000,000; provided,
however, that the Borrowers shall continue to provide calculations of such
financial covenant in each Compliance Certificate delivered to the Agent
pursuant to Section 6.1.1.
7.
AMENDMENT OF CAPITAL EXPENDITURES COVENANT.
SECTION 6.2.5 OF THE
CREDIT AGREEMENT IS HEREBY AMENDED TO READ AS FOLLOWS:
SECTION 6.2.5
CAPITAL EXPENDITURES.
THE BORROWERS WILL NOT, AND
WILL NOT PERMIT ITS SUBSIDIARIES TO, MAKE OR COMMIT TO MAKE CONSOLIDATED CAPITAL
EXPENDITURES DURING THE 2007 FISCAL YEAR IN AN AGGREGATE AMOUNT GREATER THAN TWO
MILLION DOLLARS ($2,000,000).
ON OR PRIOR TO DECEMBER 31 OF EACH YEAR, THE
BORROWERS AND THE REQUIRED LENDERS SHALL AGREE AMONG THEMSELVES AS TO THE
MAXIMUM CONSOLIDATED CAPITAL EXPENDITURE LIMIT FOR THE FOLLOWING FISCAL YEAR;
PROVIDED, HOWEVER, THAT IF THE BORROWERS AND THE REQUIRED LENDERS ARE UNABLE TO
AGREE ON SUCH LIMIT IN WRITING BY SUCH DATE, THEN SUCH LIMIT SHALL BE DETERMINED
BY THE REQUIRED LENDERS IN THEIR CREDIT JUDGMENT.
8.
INDUCING REPRESENTATIONS.
TO INDUCE THE AGENT AND THE LENDERS TO
ENTER INTO THIS AGREEMENT, EACH BORROWER HEREBY REPRESENTS AND WARRANTS THAT:
(A) SUCH BORROWER IS DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT, AND THIS
AGREEMENT, UPON ITS EXECUTION BY SUCH BORROWER, THE AGENT AND EACH LENDER, WILL
CONSTITUTE SUCH BORROWER'S LEGAL, VALID AND BINDING OBLIGATIONS ENFORCEABLE IN
ACCORDANCE WITH ITS TERMS AGAINST SUCH BORROWER; (B) AFTER GIVING EFFECT TO THIS
AGREEMENT AND THE CONSUMMATION OF THE PERRIS SALE/LEASEBACK, NO DEFAULT OR EVENT
OF DEFAULT EXISTS; (C) NO PRESENT RIGHT OF SETOFF, COUNTERCLAIM, RECOUPMENT
CLAIM OR DEFENSE EXISTS IN SUCH BORROWER'S FAVOR IN RESPECT OF ITS PAYMENT OR
PERFORMANCE OF ANY OBLIGATIONS; AND (D) EXCEPT AS MODIFIED BY THIS AGREEMENT,
ALL TERMS OF THE CREDIT AGREEMENT AND EACH LOAN DOCUMENT SHALL REMAIN IN FULL
FORCE AND EFFECT.
9.
CONDITIONS PRECEDENT.
NOTWITHSTANDING ANY PROVISION HEREIN THE
CONTRARY, THIS AGREEMENT SHALL NOT BECOME EFFECTIVE, AND NEITHER THE AGENT NOR
ANY LENDER SHALL HAVE ANY LIABILITY HEREUNDER, UNLESS AND UNTIL EACH OF THE
FOLLOWING CONDITIONS PRECEDENT IS SATISFIED IN A MANNER AND PURSUANT TO
DOCUMENTATION SATISFACTORY TO THE AGENT