on a consolidated basis in accordance with
GAAP, on a rolling four (4) quarter basis; provided, however, that such
calculation as of the fiscal quarter ending March 31, 2010 shall be for the most
recent fiscal quarterly period ending on such date on a cumulative, annualized
basis; such calculation for the fiscal quarter ending June 30, 2010 shall be for
the two (2) most recent fiscal quarterly periods ending on such date on a
cumulative, annualized basis and such calculation for the fiscal quarter ending
September 30, 2010 shall be for the three (3) most recent fiscal quarterly
periods ending on such date on a cumulative, annualized basis.
(B)
SECTION 2.01(D) OF THE CREDIT AGREEMENT IS HEREBY AMENDED AND
RESTATED AS FOLLOWS:
(D)
THE INITIAL TERM OF THE CREDIT FACILITY ("INITIAL TERM") SHALL
EXPIRE ON JANUARY 31, 2011.
ALL REVOLVING LOANS SHALL BE REPAID ON OR BEFORE
THE EARLIER OF THE LAST DAY OF THE INITIAL TERM OR UPON TERMINATION OF THE
CREDIT FACILITY OR TERMINATION OF THIS AGREEMENT ("MATURITY DATE").
AFTER THE
MATURITY DATE NO FURTHER REVOLVING LOANS SHALL BE AVAILABLE FROM LENDER.
(C)
SECTION 2.03(C) OF THE CREDIT AGREEMENT IS HEREBY AMENDED AND
RESTATED AS FOLLOWS:
(C)
SHOULD THE CREDIT FACILITY BE TERMINATED FOR ANY REASON PRIOR TO
THE LAST DAY OF THE INITIAL TERM, IN ADDITION TO REPAYMENT OF ALL OBLIGATIONS
THEN OUTSTANDING AND TERMINATION OF LENDER'S COMMITMENT HEREUNDER, BORROWERS
SHALL UNCONDITIONALLY BE OBLIGATED TO PAY AT THE TIME OF SUCH TERMINATION, A FEE
("TERMINATION FEE") IN AN AMOUNT EQUAL TO ONE PERCENT (1.0%) OF THE REVOLVING
LOAN COMMITMENT.
BORROWERS ACKNOWLEDGE THAT THE TERMINATION FEE IS AN ESTIMATE OF LENDER'S
DAMAGES IN THE EVENT OF EARLY TERMINATION AND IS NOT A PENALTY.
IN THE EVENT OF
TERMINATION OF THE CREDIT FACILITY, ALL OF THE OBLIGATIONS SHALL BE IMMEDIATELY
DUE AND PAYABLE UPON THE TERMINATION DATE STATED IN ANY NOTICE OF TERMINATION.
ALL UNDERTAKINGS, AGREEMENTS, COVENANTS, WARRANTIES AND REPRESENTATIONS OF
BORROWERS CONTAINED IN THE LOAN DOCUMENTS SHALL SURVIVE ANY SUCH TERMINATION,
AND LENDER SHALL RETAIN ITS SECURITY INTERESTS IN THE COLLATERAL AND ALL OF ITS
RIGHTS AND REMEDIES UNDER THE LOAN DOCUMENTS NOTWITHSTANDING SUCH TERMINATION
UNTIL BORROWERS HAVE PAID THE OBLIGATIONS TO LENDER, IN FULL, IN IMMEDIATELY
AVAILABLE FUNDS, TOGETHER WITH THE APPLICABLE TERMINATION FEE, IF ANY.
2
NOTWITHSTANDING THE PAYMENT IN FULL OF THE OBLIGATIONS, LENDER SHALL NOT BE
REQUIRED TO TERMINATE ITS SECURITY INTERESTS IN THE COLLATERAL UNLESS, WITH
RESPECT TO ANY LOSS OR DAMAGE LENDER MAY INCUR AS A RESULT OF DISHONORED CHECKS
OR OTHER ITEMS OF PAYMENT RECEIVED BY LENDER FROM BORROWERS OR ANY OBLIGOR AND
APPLIED TO THE OBLIGATIONS, LENDER SHALL, AT ITS OPTION, (I) HAVE RECEIVED A
WRITTEN AGREEMENT EXECUTED BY BORROWERS AND BY ANY PERSON WHOSE LOANS OR OTHER
ADVANCES TO BORROWERS ARE USED IN WHOLE OR IN PART TO SATISFY THE OBLIGATIONS,
INDEMNIFYING LENDER FROM ANY SUCH LOSS OR DAMAGE; (II) HAVE RETAINED SUCH
MONETARY RESERVES AND SECURITY INTERESTS ON THE COLLATERAL FOR SUCH PERIOD OF
TIME AS LENDER,