|
(PAGE NUMBERS REFER TO PAPER DOCUMENT
ONLY)
EXHIBIT 10.89
EXECUTION VERSION
LETTER AMENDMENT NO. 1
to Note Purchase Agreements
April 15, 2005
The Prudential Insurance Company
of America
c/o Prudential Capital Group
2200 Ross Avenue, Suite 4200E
Dallas, Texas 75201
The Guardian Life Insurance
Company of America
7 Hanover Square
New York, New York 10004-2616
Ladies and Gentlemen:
We
refer to the Note Purchase Agreements, each dated as of June 16,
1997 (the “ Agreements ”), among the
undersigned, CPI Corp., a Delaware corporation (the ”
Company ”), and each of you, respectively. Unless
otherwise defined in this Letter Amendment No. 1 to Note Purchase
Agreements (this ” Amendment ”), the terms
defined in the Agreements, as amended hereby, shall be used herein
as therein defined.
The
Company has requested and, subject to the terms and conditions
specified herein, the undersigned holders of the Notes are willing
to make, certain amendments to the Agreements, all as more
particularly set forth herein.
1.
Amendments to the Agreements . Subject to the accuracy of
the representations and warranties set forth in paragraph 2 hereof
and satisfaction of the conditions set forth in paragraph 3(c)
hereof, the undersigned holders of the Notes hereby agree with the
Company to amend, effective as of the date first above written,
each of the Agreements as follows:
|
|
|
|
|
(a)
Section 7. Information as to Company .
|
|
|
|
|
|
(I) Clause
(a) of Section 7.1 is amended by deleting such clause (a) in its
entirety and replacing it with the following:
|
|
|
|
|
|
“(a)
Monthly and Quarterly Statements – within 45 days
after the end of each monthly fiscal period, and within 45 days
after the end of each quarterly fiscal period, in each case in each
fiscal year of the Company (other than the last monthly and
quarterly fiscal periods of each such fiscal year) duplicate copies
of,
|
|
|
|
|
|
(i) a
consolidated balance sheet of the Company and its Subsidiaries as
at the end of such month or quarter, as applicable, and
|
|
|
(ii) consolidated
statements of earnings and cash flows and changes in
stockholders’ equity of the Company and its Subsidiaries, for
such month or for such quarter, as applicable, and (in the case of
each month other than the first month and in the case of the second
and third quarters) for the portion of the fiscal year ending with
such month or quarter, as applicable,
|
|
|
|
|
|
setting forth
in each case in comparative form the consolidated figures for the
corresponding periods in the previous fiscal year, all in
reasonable detail, prepared (in the case of such quarterly
statements) in accordance with GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial
Officer as fairly presenting, in all material respects, the
financial position of the companies being reported on and their
results of operations and cash flows, subject to changes resulting
from year-end adjustments, provided that delivery of such
quarterly statements within the time period specified above of
copies of the Company’s Quarterly Report on Form 10-Q
prepared in compliance with the requirements therefor and filed
with the Securities and Exchange Commission shall be deemed to
satisfy the requirements of this Section 7.1(a) with respect to
such quarterly statements;”
|
|
|
|
|
(II) Clause
(b) of Section 7.1 is amended by replacing “105” with
“90” in the first line thereof.
|
|
|
|
|
(III) Section
7.1 is further amended by relabeling existing clause (g) thereof as
clause (i) and adding new clauses (g) and (h) immediately prior
thereto, such new clauses (g) and (h) to read as
follows:
|
|
|
|
|
|
“(g) promptly,
but in no event later than three Business Days after becoming aware
of any of the following, written notice describing the same and the
steps being taken by the Company or any affected Subsidiary with
respect thereto:
|
|
|
|
|
|
(i) any
litigation, arbitration or governmental investigation or proceeding
not previously disclosed by the Company to the holders of Notes
which has been instituted or, to the knowledge of the Company, is
threatened against the Company or any Subsidiary or to which any of
the properties of any thereof is subject which might reasonably be
expected to have a Material Adverse Effect;
|
|
|
|
|
|
(ii) any
event which might reasonably be expected to have a Material Adverse
Effect; and
|
|
|
|
|
|
(iii) any
material default or any termination, or notice (written or oral)
thereof, under any of the Sears Agreements;
|
|
|
(h) concurrently
with the delivery thereof to the Bank Agent or any Bank Lender,
copies of all documents, reports or other deliverables furnished to
the Bank Agent or any Bank Lender pursuant to any of Sections
10.1.6, 10.1.7, 10.1.9 and 10.1.10 of the Bank Agreement;
and”
|
|
|
|
|
|
(IV)
Clause (a) of Section 7.2 is amended by replacing “Sections
10.1 through 10.6” therein with “Sections 10.1 through
10.15”.
|
|
|
|
|
|
(V)
Section 7.3 is amended by deleting such Section 7.3 in its entirety
and replacing it with the following:
|
|
|
|
|
|
“
7.3 Books, Records and
Inspections.
|
|
|
|
|
|
The
Company will and will cause each of its Subsidiaries to
(a) keep its books and records in accordance with sound
business practices sufficient to allow the preparation of financial
statements in accordance with GAAP, (b) permit any holder of
Notes or any representative thereof to inspect the properties and
operations of the Company and the Subsidiaries and (c) permit
at any reasonable time and with reasonable notice (or at any time
without notice if an Event of Default exists), any holder of Notes
or any representative thereof to visit any or all of its offices,
to discuss its financial matters with its officers and its
independent auditors (and the Company hereby authorizes such
independent auditors to discuss such financial matters with any
holder of Notes or any representative thereof), and to examine
(and, at the expense of the Company, photocopy extracts from) any
of its books or other records. All such inspections or examinations
by the holders of Notes shall be at the Company’s expense;
provided that so long as no Default or Event of Default
exists, the Company shall not be required to reimburse the holders
of Notes for inspections or examinations more frequently than once
each Fiscal Year.
|
|
|
|
|
|
(b)
Section 8.7. Prepayment Relating to Disposition Payment .
Section 8.7 is amended by deleting such Section in its entirety and
replacing it with the following:
|
|
|
|
|
|
“
8.7 Prepayment
Relating to Asset Dispositions.
|
|
|
|
|
|
(a) Concurrently
with the receipt by the Company or any Subsidiary of any Net Cash
Proceeds from any Asset Disposition, the Company shall make a
prepayment of the Notes, in a proportional amount equal to the
proportional amount the Designated Proceeds (as defined below)
represent to the aggregate principal amount of the Notes and all
Bank Debt at the time outstanding.
|
|
|
|
|
|
(b) For
purposes of this Section 8.7, “ Designated Proceeds
” means 100% of the Net Cash Proceeds received by the Company
and its Subsidiaries from any Asset Disposition (it being
understood that this
|
|
|
Section 8.7
shall not apply to proceeds of Dispositions not constituting
“Asset Dispositions”).
|
|
|
|
|
|
(c) Each
prepayment of Notes pursuant to this Section 8.7 shall be at the
principal amount thereof, together with interest accrued thereon to
the date of such prepayment, plus the Make-Whole Amount determined
for the prepayment date with respect to such principal
amount.
|
|
|
|
|
|
(d) Each
prepayment of Notes pursuant to this Section 8.7 shall be made in
the same manner (as to notice and all other provisions) as a
prepayment made under Section 8.2, provided that the holder of any
Note so to be prepaid may, by notice given to the Company at least
two Business Days prior to the prepayment date, elect that the
Notes of such holder to be prepaid (or any portion thereof) shall
not be prepaid, and the Company shall not prepay the Notes of such
holder. Any notice of prepayment given under this Section 8.7 shall
clearly and prominently make reference to the provisions of this
Section 8.7 permitting the holders of Notes to elect that their
respective Notes not be prepaid.”
|
|
|
|
|
|
(c)
Section 9. Affirmative Covenants .
|
|
|
|
|
|
(I)
Section 9.5 is amended by replacing “Sections 10.5 and
10.6” therein with “Section 10.5”.
|
|
|
|
|
|
(II)
Section 9 is further amended by inserting the following new Section
9.7 at the end thereof:
|
|
|
|
|
|
“
9.7 Further
Assurances.
|
|
|
|
|
|
The
Company will and will cause each of its Subsidiaries to take such
actions as are necessary or as the Required Holders may reasonably
request from time to time to ensure that the Guaranteed Obligations
(as defined in the Guaranty Agreement) are guarantied by each
domestic Subsidiary (including, upon the acquisition or creation
thereof, any Subsidiary acquired or created after the Closing),
other than the Dormant Entities, in each case as the Required
Holders may determine.”
|
|
|
|
|
|
(d)
Section 10. Negative Covenants . Section 10 of the
Agreement is amended by deleting such Section 10 in its entirety
and replacing it with the following:
|
|
|
|
|
|
“ 10.
NEGATIVE
COVENANTS.
|
|
|
|
|
|
The
Company covenants that so long as any of the Notes are outstanding,
it will:
|
|
|
10.1
Debt.
|
|
|
|
|
|
Not,
and will not permit any Subsidiary to, create, incur, assume or
suffer to exist any Debt, except:
|
|
|
|
|
|
(a) obligations
under this Agreement and the other Note Documents;
|
|
|
|
|
|
(b) Debt
secured by Liens permitted by Section 10.2(d), and extensions,
renewals and refinancings thereof; provided that the
aggregate amount of all such Debt at any time outstanding shall not
exceed $2,500,000, provided that the foregoing limit shall
not include the Sale Leaseback if the Sale Leaseback is consummated
in an arm’s-length manner on market terms and
conditions;
|
|
|
|
|
|
(c) Debt
of the Company to any domestic Wholly-Owned Subsidiary or Debt of
any domestic Wholly-Owned Subsidiary to the Company or another
domestic Wholly-Owned Subsidiary; provided that, upon the
reasonable request of the Required Holders, such Debt shall be
evidenced by a demand note in form and substance reasonably
satisfactory to the Required Holders and the obligations under such
demand note shall be subordinated to the obligations of the Company
hereunder in a manner reasonably satisfactory to the Required
Holders;
|
|
|
|
|
|
(d) Debt
(excluding the Bank Debt) described on Schedule 10.1(d)
attached hereto, and any extension, renewal or refinancing thereof
so long as the principal amount thereof is not increased in excess
of the amount set forth on such Schedule 10.1(d)
;
|
|
|
|
|
|
(e) the
Debt to be Repaid (so long as such Debt is repaid on the Amendment
No. 1 Effective Date with the proceeds of the initial loans under
the Bank Agreement);
|
|
|
|
|
|
(f) Contingent
Liabilities arising with respect to customary indemnification
obligations in favor of purchasers in connection with dispositions
permitted under Section 10.5;
|
|
|
|
|
|
(g) the
Bank Debt, so long as each mandatory payment of principal and
interest thereunder is timely made in accordance with the terms of
the Bank Debt Documents;
|
|
|
|
|
|
(h) Contingent
Liabilities listed on Schedule 10.1(d) ;
|
|
|
|
|
|
(i) Guaranties
by the Company and/or its Subsidiaries in respect of Debt of the
Company or its domestic Subsidiaries permitted by this Section
10.1;
|
|
|
(j) Hedging
Obligations incurred in favor of the Bank Agent, any Bank Lender or
any of their Affiliates for bona fide hedging purposes and not for
speculation;
|
|
|
|
|
|
(k) Debt
owing to any trust created under a supplemental executive
retirement program of the Company; and
|
|
|
|
|
|
(l) Debt
of the Company owing to any Canadian Entity so long as such
Canadian Entity remains a Wholly-Owned Subsidiary.
|
|
|
|
|
|
10.2
Liens.
|
|
|
|
|
|
Not,
and will not permit any Subsidiary to, create or permit to exist
any Lien on any of its real or personal properties, assets or
rights of whatsoever nature (whether now owned or hereafter
acquired), except:
|
|
|
|
|
|
(a) Liens
for taxes or other governmental charges not at the time delinquent
or thereafter payable without penalty or being contested in good
faith by appropriate proceedings and, in each case, for which it
maintains adequate reserves;
|
|
|
|
|
|
(b) Liens
arising in the ordinary course of business (such as (i) Liens
of carriers, warehousemen, mechanics and materialmen and other
similar Liens imposed by law and (ii) Liens in the form of
deposits or pledges incurred in connection with worker’s
compensation, unemployment compensation and other types of social
security (excluding Liens arising under ERISA) or in connection
with surety bonds, bids, performance bonds and similar obligations)
for sums not overdue or being contested in good faith by
appropriate proceedings and not involving any advances or borrowed
money or the deferred purchase price of property or services and,
in each case, for which it maintains adequate reserves;
|
|
|
|
|
|
(c) Liens
described on Schedule 10.2 as of the Amendment No. 1
Effective Date;
|
|
|
|
|
|
(d) subject
to the limitation set forth in Section 10.1(b), (i) Liens
arising in connection with Capital Leases (and attaching only to
the property being leased), (ii) Liens existing on property at
the time of the acquisition thereof by the Company or any
Subsidiary (and not created in contemplation of such acquisition)
and (iii) Liens that constitute purchase money security
interests on any property securing debt incurred for the purpose of
financing all or any part of the cost of acquiring such property,
provided that any such Lien attaches to such property within
20 days of the acquisition thereof and attaches solely to the
property so acquired;
|
|
|
|
|
|
(e) attachments,
appeal bonds, judgments and other similar Liens, for sums not
exceeding $250,000 arising in connection with court proceedings,
provided that the execution or other enforcement of
such
|
|
|
Liens is
effectively stayed and the claims secured thereby are being
actively contested in good faith and by appropriate
proceedings;
|
|
|
|
|
|
(f) easements,
rights of way, restrictions, minor defects or irregularities in
title and other similar Liens not interfering in any material
respect with the ordinary conduct of the business of the Company or
any Subsidiary;
|
|
|
|
|
|
(g) Liens
in favor of landlords with respect to assets located at locations
leased by the Company or any Subsidiary if such provisions granting
a Lien are in existence on the Amendment No. 1 Effective Date in
leases that are in existence on the Amendment No. 1 Effective Date;
provided that, with respect to any locations leased by the
Company or any Subsidiary after the Amendment No. 1 Effective Date,
the related lease shall not contain any provisions granting a
landlord a Lien on any assets of the Company or any Subsidiary or
grant the landlord the right to dispose of any assets of the
Company or any Subsidiary and to the extent any location leased
after the Amendment No. 1 Effective Date is in a jurisdiction with
a statutory lien in favor of a landlord, such lease shall contain a
waiver of such statutory landlord lien;
|
|
|
|
|
|
(h) Liens
(i) on cash collateral provided by the Company to secure
obligations in respect of Bank Letters of Credit and
(ii) pursuant to Section 10 of the Master Letter of Credit
Agreement dated as of the Amendment No. 1 Effective Date by the
Company in respect of Bank Letters of Credit; provided that
the liabilities secured by all such Liens specified in the
foregoing clauses (i) and (ii) do not exceed an aggregate of
$15,000,000 at any time; and
|
|
|
|
|
|
(i) the
replacement, extension or renewal of any Lien permitted by clause
(c) above upon or in the same property subject thereto arising out
of the extension, renewal or replacement of the Debt secured
thereby (without increase in the amount thereof).
|
|
|
|
|
|
10.3
Operating Leases.
|
|
|
|
|
|
Not
permit the aggregate amount of all rental payments under Operating
Leases made (or scheduled to be made) by the Company and the
Subsidiaries (on a consolidated basis) to exceed $3,000,000 in any
Fiscal Year; provided that the foregoing limit shall not
include (a) a Sale Leaseback if such Sale Leaseback is
consummated in an arm’s-length manner on market terms and
conditions, (b) if the St. Louis, Missouri headquarters (and
related parking facilities) is sold, transferred or assigned, the
rental payments with respect to any replacement location if such
rental payments are on an arm’s-length basis on market terms
and conditions, or (c) if the Brampton, Ontario facility is
sold, transferred or assigned, the rental payments with respect to
any replacement
|
|
|
location if
such rental payments are on an arm’s-length basis on market
terms and conditions.
|
|
|
|
|
|
10.4
Restricted Payments.
|
|
|
|
|
|
Not,
and will not permit any Subsidiary to, (a) make any
distribution or pay any dividend to any holders of its Capital
Securities, (b) purchase or redeem any of its Capital
Securities, (c) pay any management fees or similar fees to any
of its equity holders or any Affiliate thereof, (d) make any
redemption, prepayment, defeasance, repurchase or any other payment
in respect of any Debt, not including the Bank Debt or the Notes,
prior to its stated maturity or amortization schedule (in each case
as such amortization schedule exists on the date hereof) or
(e) set aside funds for any of the foregoing. Notwithstanding
the foregoing, (x) any Subsidiary may pay dividends or make
other distributions to the Company or to a domestic Wholly-Owned
Subsidiary and (y) so long as no Default or Event of Default
exists or would result therefrom, the Company may pay dividends or
make other distributions to the holders of its Capital Securities
and may purchase, repurchase or redeem the Company’s Capital
Securities up to an aggregate (for all such dividends,
distributions, purchases, repurchases and redemptions) of
$5,500,000 in each Fiscal Year.
|
|
|
|
|
|
10.5
Mergers, Consolidations, Sales.
|
|
|
|
|
|
Not,
and will not permit any Subsidiary to, (a) be a party to any
merger or consolidation, or purchase or otherwise acquire all or
substantially all of the assets or any Capital Securities of any
class of, or any partnership or joint venture interest in, any
other Person, (b) sell, transfer, convey or lease all or any
substantial part of its assets or Capital Securities (including the
sale of Capital Securities of any Subsidiary) except for sales of
inventory, excess equipment and obsolete equipment in the ordinary
course of business, (c) sell, transfer or assign the St.
Louis, Missouri headquarters (and related parking facilities)
and/or the Brampton, Ontario facility except, in each case, on an
arm’s-length basis and on market terms and conditions or
(d) sell or assign with or without recourse any receivables,
except for (x) any such merger, consolidation, sale, transfer,
conveyance, lease or assignment of or by any Wholly-Owned
Subsidiary into the Company or into any other domestic Wholly-Owned
Subsidiary and (y) any such purchase or other acquisition by
the Company or any domestic Wholly-Owned Subsidiary of the assets
or Capital Securities of any Wholly-Owned Subsidiary.
|
|
|
|
|
|
10.6 Modification
of Organizational Documents.
|
|
|
|
|
|
Not
permit the charter, by-laws or other organizational documents of
the Company or any Subsidiary to be amended or modified in any way
which could reasonably be expected to materially adversely affect
the interests of the holders of Notes; not change, or allow the
Company or any Subsidiary to change, its State of formation or its
organizational form.
|
|
|
10.7
Transactions with Affiliates.
|
|
|
|
|
|
Not,
and will not permit any Subsidiary to, enter into, or cause, suffer
or permit to exist any transaction, arrangement or contract with
any of its other Affiliates (other than the Company and the
Subsidiaries) which is on terms which are materially less favorable
than are reasonably obtainable from any Person which is not one of
its Affiliates and excluding any employment agreements with any
officers and directors of the Company or any Subsidiary to the
extent approved by the Board of Directors of the Company or such
Subsidiary, as applicable, and disclosed by the Company in
accordance with all applicable public reporting laws, rules, and
regulations.
|
|
|
|
|
|
10.8
Inconsistent Agreements.
|
|
|
|
|
|
Not,
and will not permit any Subsidiary to, enter into, or be a party
to, any agreement containing any provision which would (a) be
violated or breached by the performance by the Company or any
Subsidiary of any of its obligations hereunder or under any other
Note Document, (b) prohibit the Company or any Subsidiary from
granting to any holder of Notes, a Lien on any of its assets (other
than the Bank Debt Documents) or (c) create or permit to exist
or become effective any encumbrance or restriction on the ability
of any Subsidiary to (i) pay dividends or make other
distributions to the Company or any other Subsidiary, or pay any
Debt owed to the Company or any other Subsidiary, (ii) make
loans or advances to the Company or any Subsidiary or
(iii) transfer any of its assets or properties to the Company
or any Subsidiary, other than (A) customary restrictions and
conditions contained in agreements relating to the sale of all or a
substantial part of the assets of any Subsidiary pending such sale,
provided that such restrictions and conditions apply only to the
Subsidiary to be sold and such sale is permitted hereunder,
(B) restrictions or conditions imposed by any agreement
relating to purchase money Debt, and Capital Leases permitted by
this Agreement if such restrictions or conditions apply only to the
property or assets securing such Debt and (C) customary
provisions in leases and other contracts restricting the assignment
thereof.
|
|
|
|
|
|
10.9 Business
Activities; Issuance of Equity.
|
|
|
|
|
|
Not,
and will not permit any Subsidiary to, (a) engage in any line
of business other than the businesses engaged in on the Amendment
No. 1 Effective Date and businesses reasonably related thereto or
(b) issue any Capital Securities other than, in the case of
this clause (b), (i) any issuance of shares of the
Company’s common Capital Securities pursuant to any employee
or director option program, benefit plan or compensation program,
and (ii) any issuance by a Subsidiary to the Company or
another Subsidiary in accordance with Section 10.4.
|
|
|
10.10
Investments.
|
|
|
|
|
|
Not,
and will not permit any Subsidiary to, make or permit to exist any
Investment in any other Person, except the following:
|
|
|
|
|
|
(a) contributions
by the Company to the capital of any domestic Wholly-Owned
Subsidiary, or by any Subsidiary to the capital of any other
domestic Wholly-Owned Subsidiary, so long as the recipient of any
such capital contribution has guaranteed the obligations of the
Company and the Subsidiaries hereunder and under the Notes and the
other Notes Documents, as required by this Agreement;
|
|
|
|
|
|
(b) Investments
constituting Debt permitted by Section 10.1;
|
|
|
|
|
|
(c) Contingent
Liabilities constituting Debt permitted by Section 10.1 or Liens
permitted by Section 10.2;
|
|
|
|
|
|
(d) bank
deposits in the ordinary course of business;
|
|
|
|
|
|
(e) 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; and
|
|
|
|
|
|
(f) Investments
listed on Schedule 10.10 as of the Amendment No. 1 Effective
Date;
|
|
|
|
|
|
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; and (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 Default or Event of
Default exists.
|
|
|
|
|
|
10.11 Most Favored
Lender.
|
|
|
|
|
|
Not
enter into, assume or otherwise be bound or obligated under any
agreement creating or evidencing Debt in excess of $250,000
containing one or more Additional Covenants or Additional Defaults,
without the prior written consent of the Required Holders;
provided , however , in the event the Company or any
Subsidiary shall enter into, assume or otherwise become bound by or
obligated under any such agreement without the prior written
consent of the Required Holders, the terms of this Agreement shall,
without any further action on the part of the Company or any
Subsidiary or any holder of Notes, be deemed to be amended
automatically to include each Additional Covenant and each
Additional Default contained in such agreement. The Company further
covenants to promptly execute and deliver at its expense
(including, without limitation, the reasonable fees and expenses of
counsel for the holders of Notes) an amendment to this Agreement in
form and substance satisfactory to the Required Holders
|
|
|
evidencing the
amendment of this Agreement to include such Additional Covenants
and Additional Defaults, provided that the execution and
delivery of such amendment shall not be a precondition to the
effectiveness of such amendment as provided for in this Section,
but shall merely be for the convenience of the parties hereto.
Notwithstanding the foregoing, the Bank Debt Documents as they
exist on the Amendment No. 1 Effective Date are not implicated by
this Section.
|
|
|
|
|
|
10.12 Restriction
of Amendments to Certain Documents.
|
|
|
|
|
|
Not
amend or otherwise modify, or waive any rights under, (a) any
of the Sears Agreements, if, in any case, such amendment,
modification or waiver could reasonably be expected to be adverse
to the interests of the holders of Notes or be materially adverse
to the Company or (b) the Bank Debt Documents, except to the
extent such change could not reasonably be expected to materially
adversely effect any holder of Notes or except to the extent such
change is not more restrictive to the Company or any
Subsidiary.
|
|
|
|
|
|
10.13 Dormant
Entities.
|
|
|
|
|
|
Not
allow or permit any Dormant Entity to (a) have or hold any
assets of any kind or nature other than the Capital Securities of
any Subsidiary, (b) have or incur any liabilities, obligations
or Debt of any kind other than incidental corporate maintenance
items, incidental tax liabilities, or (c) have any operations
or employees.
|
|
|
|
|
|
10.14 Fiscal
Year.
|
|
|
|
|
|
Not
change its Fiscal Months, Fiscal Quarters or Fiscal Years from what
is set forth on Schedule 10.14 .
|
|
|
10.15 Financial
Covenants.
|
|
|
|
|
|
10.15.1 Minimum EBITDA.
|
|
|
|
|
|
Not
permit, as of the last day of any Computation Period, EBITDA for
such Computation Period to be less than the amount set forth below
for such Computation Period:
|
|
|
|
|
|
Computation
Periods Ending
|
|
Minimum
EBITDA
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
April 30, 2005
and July 23, 2005
|
|
$24,000,000
|
|
|
|
|
|
|
|
|
|
November
12, 2005
|
|
$25,000,000
|
|
|
|
|
|
|
|
|
|
February 4,
2006, April 29, 2006
and July 22, 2006
|
|
$28,000,000
|
|
|
|
|
|
|
|
|
|
November 11,
2006, February 3, 2007
and April 28, 2007
|
|
$30,000,000
|
|
|
|
|
|
|
|
|
|
10.15.2 Total Debt to EBITDA
Ratio.
|
|
|
|
|
|
Not
permit, as of the last day of any Fiscal Quarter, the ratio of
Total Debt to EBITDA, for the Computation Period ended on the last
day of such Fiscal Quarter, to exceed 2.00 to 1.00.
|
|
|
|
|
|
10.15.3 Minimum Net Worth.
|
|
|
|
|
|
The
Company’s Net Worth as of the last day of each Fiscal Quarter
shall not be less than the following, plus with respect to each of
the following, 90% of the net proceeds of any issuance of equity or
equity securities in the Company issued after the Amendment No. 1
Effective Date:
|
|
|
|
|
Fiscal Quarter Ending
|
|
Minimum
Net Worth
|
|
|
|
|
|
|
|
|
|
|
|
|
April 30, 2005
|
|
$17,000,000
|
|
|
July 23, 2005
|
|
$13,000,000
|
|
|
November 12, 2005
|
|
$7,000,000
|
|
|
February 4, 2006
|
|
$20,000,000
|
|
|
April 29, 2006
|
|
$18,000,000
|
|
|
July 22, 2006
|
|
$14,000,000
|
|
|
November 11, 2006
|
|
$10
|
|
