not an amount of Indebtedness
constituting Material Indebtedness is outstanding thereunder).
(B)
THE FOLLOWING DEFINED TERM IS HEREBY ADDED TO ARTICLE 1 OF THE CREDIT
AGREEMENT:
"Unrestricted Cash" means cash and Cash Equivalents of the Borrower and the
Guarantors that are free and clear of all Liens and not subject to any
restrictions on the use thereof to pay Indebtedness and other obligations of the
Borrower and Guarantors.
2.
CONSOLIDATED TANGIBLE NET WORTH.
SECTION 6.24 OF THE CREDIT
AGREEMENT IS HEREBY AMENDED AND RESTATED IN ITS ENTIRETY AS FOLLOWS:
6.24
Consolidated Tangible Net Worth.
The Borrower shall not permit
Consolidated Tangible Net Worth at any time to be less than the sum of (a)
$850,000,000 plus (b) 50% of the Consolidated Net Income (without deduction for
losses sustained during any fiscal quarter) for each fiscal quarter subsequent
to the fiscal quarter ended
December 31, 2007, plus (c) 50% of the net proceeds
from any equity offerings of the Borrower from and after December 31, 2007.
Notwithstanding the foregoing, in the event that the Borrower shall at any time
engage in an Acquisition with a purchase price (determined under GAAP) equaling
or exceeding $100,000,000, the minimum Consolidated Tangible Net Worth
requirement shall be adjusted to the sum of (i) 80% of Consolidated Tangible Net
Worth at the end of the fiscal quarter in which the closing of such Acquisition
occurs, plus (ii) an amount equal to 50% of the Consolidated Net Income (without
deduction for losses sustained in any fiscal quarter) for each fiscal quarter
subsequent to the closing of such Acquisition, plus (iii) 50% of the net
proceeds received by the Borrower for any capital stock issued after the closing
of such Acquisition.
3.
BORROWING BASE AND COMPLIANCE CERTIFICATES.
THE FORM OF
BORROWING BASE CERTIFICATE ATTACHED AS EXHIBIT A TO THE CREDIT AGREEMENT IS
REPLACED BY EXHIBIT A ATTACHED
2
HERETO.
THE COMPLIANCE CERTIFICATE PROVIDED FOR IN THE CREDIT AGREEMENT SHALL
BE MODIFIED (AS APPLICABLE) TO CONFORM TO THE TERMS OF THIS AMENDMENT.
4.
CONDITIONS PRECEDENT.
THIS AMENDMENT SHALL BE EFFECTIVE AS OF
THE DATE ("AMENDMENT EFFECTIVE DATE") UPON WHICH THE FOLLOWING CONDITIONS ARE
SATISFIED:
(A)
THE AGENT SHALL HAVE RECEIVED FROM THE BORROWER AND THE REQUIRED
LENDERS A COUNTERPART OF THIS AMENDMENT SIGNED ON BEHALF OF EACH SUCH PARTY.
(B)
THE AGENT SHALL HAVE RECEIVED FROM THE GUARANTORS THE CONSENT AND
AGREEMENT SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS APPENDIX I.
(C)
THE AGENT SHALL HAVE RECEIVED SUCH DOCUMENTS AND CERTIFICATES AS THE
AGENT OR ITS COUNSEL MAY REASONABLY REQUEST RELATING TO THE ORGANIZATION OR
FORMATION, EXISTENCE AND GOOD STANDING OF THE BORROWER, THE AUTHORIZATION OF
THIS AMENDMENT AND ANY OTHER LEGAL MATTERS RELATING TO THE BORROWER, THE
AGREEMENT OR THIS AMENDMENT, ALL IN FORM AND SUBSTANCE SATISFACTORY TO THE AGENT
AND ITS COUNSEL.
(D)
THE AGENT SHALL HAVE RECEIVED ALL FEES AND OTHER AMOUNTS DUE AND
PAYABLE ON OR PRIOR TO THE AMENDMENT EFFECTIVE DATE, INCLUDING REIMBURSEMENT OR
PAYMENT OF ALL OUT-OF-POCKET EXPENSES REQUIRED TO BE REIMBURSED OR