Obligations, which aggregate commitment shall be Fifteen
Million Dollars ($15,000,000) on the Twelfth Amendment Closing Date, as such
amount may be adjusted, if at all, from time to time in accordance with the
Agreement.
(C)
ANNEX A TO THE CREDIT AGREEMENT (DEFINITIONS) IS HEREBY AMENDED BY ADDING
THE FOLLOWING DEFINED TERM IN PROPER ALPHABETICAL ORDER:
"TWELFTH AMENDMENT CLOSING DATE" MEANS AUGUST 4, 2009.
(D)
THE REFERENCE TO "COMMITMENT TERMINATION DATE" IN THE FIRST
SENTENCE OF PARAGRAPH (A) OF ANNEX B TO THE CREDIT AGREEMENT (LETTERS OF CREDIT)
IS HEREBY DELETED AND REPLACED WITH A REFERENCE TO "AUGUST 4, 2009".
(E)
ANNEX G TO THE CREDIT AGREEMENT IS HEREBY AMENDED BY AMENDING AND
RESTATING CLAUSE (C) THEREOF AS FOLLOWS:
"(C)
MINIMUM FIXED CHARGE COVERAGE RATIO.
IN THE EVENT THAT (A) THE
AVERAGE DAILY BORROWING AVAILABILITY FOR ANY FISCAL MONTH (THE "TRIGGER MONTH")
IS LESS THAN $5,000,000, AND (B) THERE ARE LOANS OUTSTANDING HEREUNDER AT ANY
TIME DURING SUCH TRIGGER MONTH, THEN BORROWER AND ITS SUBSIDIARIES SHALL HAVE ON
A CONSOLIDATED BASIS AT THE END OF EACH FISCAL MONTH, COMMENCING WITH THE
TRIGGER MONTH, A FIXED CHARGE COVERAGE RATIO FOR THE TWELVE (12) FISCAL MONTH
PERIOD THEN ENDED OF NOT LESS THAN 1.0 TO 1.0."
(F)
THE REFERENCE TO "$55,000,000" ON ANNEX J TO THE CREDIT AGREEMENT
IS HEREBY DELETED AND REPLACED WITH A REFERENCE TO "$15,000,000".
3.
CONDITIONS PRECEDENT.
THE EFFECTIVENESS OF THE CONSENT AND
AMENDMENT CONTEMPLATED HEREBY IS SUBJECT TO THE PRIOR RECEIPT BY AGENT OF EACH
OF THE FOLLOWING DOCUMENTS AND AGREEMENTS, EACH IN THE FORM AND SUBSTANCE
ACCEPTABLE TO AGENT IN ITS SOLE DISCRETION:
(A)
AGENT SHALL HAVE RECEIVED A FULLY EXECUTED COPY OF THIS AMENDMENT;
(B)
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING; AND
(C)
ALL PROCEEDINGS TAKEN IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY
THIS AMENDMENT ON OR PRIOR TO THE DATE HEREOF AND ALL AGREEMENTS, DOCUMENTS,
INSTRUMENTS AND OTHER LEGAL MATTERS INCIDENT THERETO ENTERED INTO ON OR PRIOR TO
THE DATE HEREOF SHALL BE REASONABLY SATISFACTORY TO AGENT AND ITS LEGAL COUNSEL.
3
4.
REPRESENTATIONS AND WARRANTIES.
TO INDUCE AGENT TO ENTER INTO
THIS AMENDMENT, THE BORROWER HEREBY REPRESENTS AND WARRANTS TO AGENT THAT:
(A)
THE EXECUTION, DELIVERY AND PERFORMANCE BY EACH CREDIT PARTY OF THIS
AMENDMENT AND EACH OTHER AGREEMENT AND DOCUMENT CONTEMPLATED HEREBY ARE WITHIN
THEIR CORPORATE OR LIMITED LIABILITY COMPANY POWER, HAVE BEEN DULY AUTHORIZED BY
ALL NECESSARY CORPORATE OR LIMITED LIABILITY COMPANY ACTION, HAVE RECEIVED ALL
NECESSARY GOVERNMENTAL APPROVAL (IF ANY SHALL BE REQUIRED), AND DO NOT AND WILL
NOT CONTRAVENE OR CONFLICT WITH ANY PROVISION OF LAW APPLICABLE TO ANY CREDIT
PARTY, THE ARTICLES OF INCORPORATION, ARTICLES OF ORGANIZATION, BY-LAWS OR
OPERATING AGREEMENT OF ANY CREDIT PARTY, ANY ORDER, JUDGMENT OR DECREE OF ANY
COURT OR GOVERNMENTAL AGENCY, OR ANY AGREEMENT, INSTRUMENT OR DOCUMENT BINDING
UPON ANY CREDIT PARTY OR ANY OF THEIR RESPECTIVE PROPERTIES;
(B)
EACH OF THE CREDIT AGREEMENT, THE OTHER LOAN DOCUMENTS, AND EACH OTHER
AGREEMENT AND DOCUMENT CONTEMPLATED HEREBY IS