the sum of any intangible assets (including, without limitation,
goodwill, franchises, licenses, patents, trademarks, trade names, copyrights,
service marks and brand names).
(U)
BORROWER GROUP WILL MAINTAIN A DEBT SERVICE COVERAGE RATIO,
DEFINED AS CASH FLOW DIVIDED BY DEBT SERVICE, OF NOT LESS THAN 1.40 TO 1.00 ON A
CONSOLIDATED BASIS FOR EACH FISCAL YEAR.
"CASH FLOW" SHALL MEAN NET INCOME
BEFORE TAXES PLUS INTEREST EXPENSE, DEPRECIATION, AMORTIZATION AND OTHER NONCASH
ITEMS (AS DETERMINED BY LENDER); AND "DEBT SERVICE" SHALL MEAN THE SUM OF THE
CURRENT PORTION OF LONG TERM DEBT AND CAPITALIZED LEASES PLUS INTEREST EXPENSE.
23
(V)
BORROWER GROUP MAY ONLY DISTRIBUTE AMOUNTS NO GREATER THAN:
Distribution Limit
Applicable Date
$ 427,000
FYE 6/30/2012
$ 521,000
FYE 6/30/2013
$ 616,000
FYE 6/30/2014
$ 711,000
FYE 6/30/2015
$ 853,000
FYE 6/30/2016
PROVIDED HOWEVER, THE BORROWER GROUP MAY EXCEED THE ESTABLISHED LIMITATIONS AS
DESCRIBED ABOVE, IN AN AMOUNT EQUAL TO THE AMOUNT BY WHICH THE THEN-TRAILING
TWELVE (12) MONTHS EBITDA EXCEEDS 1.10 TIMES THE TOTAL FUNDED DEBT, AS
DETERMINED FROM TIME TO TIME BY LENDER.
With respect to the covenants and information set forth in subsections (t), (u)
and (v) next above, the Borrower Group shall prepare and submit to Lender, no
later than forty-five (45) days following the end of each calendar quarter while
any Indebtedness remains outstanding, a Compliance Certificate signed by the
Chief Financial Officer of the Borrower Group, indicating compliance with those
covenants.
The Compliance Certificate shall contain such backup documentation
and materials as Lender shall require.
Failure to timely provide any Compliance
Certificate, or the backup documentation, shall constitute a Event of Default
hereunder.
(W)
BORROWER GROUP AGREES TO USE ITS BEST EFFORTS TO MOVE ITS
MERCHANT PROCESSING RELATIONSHIP TO LENDER SUBSEQUENT TO THE CLOSING OF THE
LOANS, AND TO MAINTAIN THE SAME AT ALL TIMES WHILE ANY INDEBTEDNESS REMAINS
OUTSTANDING;
(X)
BORROWER GROUP WILL REQUIRE ANY AND ALL INDEBTEDNESS OWED BY
ANY OF THE ENTITIES COMPRISING BORROWER GROUP TO THEIR OWNERS AND/OR PRINCIPALS,
TO BE SUBORDINATED TO ALL OF BORROWER GROUP'S INDEBTEDNESS TO LENDER, ON A FORM
OF SUBORDINATION AGREEMENT ACCEPTABLE TO LENDER;
(Y)
BORROWER GROUP WILL MAINTAIN ITS PRIMARY OPERATING ACCOUNT AND
TREASURY MANAGEMENT SERVICES WITH LENDER WHILE ANY INDEBTEDNESS REMAINS
OUTSTANDING;
(Z)
AT ALL TIMES THROUGHOUT THE TERM OF THIS AGREEMENT, BORROWER
GROUP AND ALL OF ITS AFFILIATES SHALL (I) NOT BE A PROHIBITED PERSON, AND
(II) BE IN FULL COMPLIANCE WITH THE EXECUTIVE ORDER AND THE UNITING AND
STRENGTHENING AMERICA BY PROVIDING APPROPRIATE TOOLS REQUIRED TO INTERCEPT AND
OBSTRUCT TERRORISM ACT OF 2001, PUB. L. NO. 107‐56, 115 STAT. 272(2001) AND ALL
AMENDMENTS THERETO.
EXECUTIVE ORDER MEANS EXECUTIVE ORDER NO. 13224 - BLOCKING
PROPERTY AND PROHIBITING TRANSACTIONS WITH PERSONS WHO COMMIT, THREATEN TO
COMMIT, OR SUPPORT TERRORISM, EFFECTIVE SEPTEMBER 24, 2001, AND ALL APPLICABLE
ORDERS, RULES, REGULATIONS, AND RECOMMENDATIONS PROMULGATED UNDER OR IN
CONNECTION THEREWITH, AND ALL AMENDMENTS OF THE FOREGOING.
PROHIBITED PERSON
MEANS ANY PERSON:
(I)
LISTED IN THE ANNEX TO, OR OTHERWISE SUBJECT TO THE
PROVISIONS OF, THE