IN ITS REASONABLE DISCRETION, MAY DEEM NECESSARY TO PROTECT
LENDER FROM ANY SUCH LOSS OR DAMAGE; OR (III) HAVE RECEIVED SUCH OTHER WRITTEN
AGREEMENTS AND/OR ARRANGEMENTS SATISFACTORY TO LENDER, IN ITS SOLE DISCRETION,
WITH RESPECT TO SUCH MATTERS.
(D)
EFFECTIVE AS OF DECEMBER 1, 2009, SECTION 2.03(D) OF THE CREDIT
AGREEMENT IS HEREBY AMENDED AND RESTATED AS FOLLOWS:
(D)
BORROWERS SHALL UNCONDITIONALLY PAY TO LENDER A FEE ("UNUSED LINE
FEE") EQUAL TO ONE-HALF OF ONE PERCENT (0.50%) PER ANNUM OF THE UNUSED PORTION
OF THE CREDIT FACILITY.
THE UNUSED PORTION OF THE CREDIT FACILITY SHALL BE THE
DIFFERENCE BETWEEN THE REVOLVING LOAN COMMITMENT AND THE AVERAGE DAILY
OUTSTANDING BALANCE OF THE REVOLVING LOANS DURING EACH MONTH (OR PORTION
THEREOF, AS APPLICABLE), WHICH FEES SHALL BE CALCULATED AND PAYABLE MONTHLY, IN
ARREARS, AND SHALL BE DUE AND PAYABLE ON THE FIRST CALENDAR DAY OF EACH MONTH.
(E)
SECTION 6.06 OF THE CREDIT AGREEMENT IS HEREBY AMENDED AND
RESTATED AS FOLLOWS:
6.06
Financial Covenants.
Borrowers shall perform and comply with each
of the following financial covenants as reflected and computed from their
financial statements:
(a)
Borrowers shall maintain a Loan Turn Days of not greater than
thirty-five (35) days, measured as of December 31, 2009.
(B)
RESERVED
(C)
BORROWERS SHALL MAINTAIN, AT ALL TIMES, A FIXED CHARGE COVERAGE
RATIO, MEASURED QUARTERLY AT THE END OF EACH FISCAL QUARTER, OF NOT LESS THAN
(I) 1.00 TO 1.0 AS OF THE FISCAL QUARTER ENDING MARCH 31, 2010, (II) 1.10 TO 1.0
AS OF THE FISCAL QUARTER ENDING JUNE 30, 2010, AND (III) 1.20 TO 1.0 AS OF THE
FISCAL QUARTER ENDING SEPTEMBER 30, 2010 AND EACH FISCAL QUARTER THEREAFTER.
3
3.
REPRESENTATIONS AND WARRANTIES.
EACH BORROWER REPRESENTS AND
WARRANTS TO LENDER THAT:
(A)
ALL WARRANTIES AND REPRESENTATIONS MADE TO LENDER UNDER THE CREDIT
AGREEMENT AND THE EXISTING CREDIT DOCUMENTS ARE TRUE AND CORRECT AS OF THE DATE
HEREOF (EXCEPT AS TO SUCH WARRANTIES AND REPRESENTATIONS WHICH ARE AS OF A
SPECIFIC DATE, WHICH WARRANTIES AND REPRESENTATIONS ARE TRUE AND CORRECT AS OF
SUCH DATE).
(B)
THE EXECUTION AND DELIVERY BY SUCH BORROWER OF THIS AMENDMENT AND
THE PERFORMANCE BY IT OF THE TRANSACTIONS HEREIN CONTEMPLATED (I) ARE AND WILL
BE WITHIN ITS POWERS, (II) HAVE BEEN AUTHORIZED BY ALL NECESSARY ORGANIZATIONAL
ACTION, AND (III) ARE NOT AND WILL NOT BE IN CONTRAVENTION OF ANY ORDER OF ANY
COURT OR OTHER AGENCY OF GOVERNMENT, OF LAW OR ANY OTHER INDENTURE, AGREEMENT OR
UNDERTAKING TO WHICH ANY BORROWER IS A PARTY OR BY WHICH THE PROPERTY OF SUCH
BORROWER IS BOUND, OR BE IN CONFLICT WITH, RESULT IN A BREACH OF, OR CONSTITUTE
(WITH DUE NOTICE AND/OR LAPSE OF TIME) A DEFAULT UNDER ANY SUCH INDENTURE,
AGREEMENT OR UNDERTAKING OR RESULT IN THE IMPOSITION OF ANY LIEN, CHARGE OR
ENCUMBRANCE OF ANY NATURE ON ANY OF THE PROPERTIES OF SUCH BORROWER.
(C)
THIS AMENDMENT AND ANY ASSIGNMENT, INSTRUMENT, DOCUMENT, OR
AGREEMENT EXECUTED AND DELIVERED IN CONNECTION HEREWITH, IS VALID, BINDING AND
ENFORCEABLE IN ACCORDANCE WITH