any Computation Period to exceed
2.50 to 1.00.
(M)
SECTION 11.12.2 OF THE CREDIT AGREEMENT SHALL BE AMENDED AND
RESTATED TO READ IN FULL AS FOLLOWS:
11.12.2
Fixed Charge Coverage Ratio.
Not permit the Fixed Charge
Coverage Ratio as of the last day of any Computation Period to be less than the
amount indicated below:
7
Fiscal Quarter
Ending Nearest
Minimum Ratio
December 31, 2008
2.00:1.00
March 31, 2009
1.50:1.00
June 30, 2009, September 30, 2009
1.25:1:00
December 31, 2009 and thereafter
2.00:1.00
(N)
SECTION 12.2.1 OF THE CREDIT AGREEMENT SHALL BE AMENDED AND
RESTATED TO READ AS FOLLOWS:
12.2.1
Compliance with Warranties, No Default, etc.
Both before and
after giving effect to any borrowing and the issuance of any Letter of Credit,
the following statements shall be true and correct:
(a)
the representations and warranties of each Loan Party set forth in
this Agreement and the other Loan Documents shall be true and correct in all
respects with the same effect as if then made (except to the extent stated to
relate to a specific earlier date, in which case such representations and
warranties shall be true and correct as of such earlier date);
(b)
no Event of Default or Unmatured Event of Default shall have then
occurred and be continuing; and
(c)
during the Restricted Period, no Borrowing Base Deficiency shall
exist.
(O)
SECTION 13.1.5(A) OF THE CREDIT AGREEMENT SHALL BE AMENDED BY
DELETING THE PHRASE "SECTION 10.1.5, 10.3(B) OR 10.5 OR SECTION 11" AND
INSERTING IN ITS PLACE:
"SECTION 10.1.5, 10.1.9, 10.3(B), 10.5 OR 10.10 OR
SECTION 11".
(P)
THE CREDIT AGREEMENT SHALL BE FURTHER AMENDED BY DELETING
EXHIBIT B THEREOF AND REPLACING IT WITH THE EXHIBIT B ATTACHED HERETO AS
ANNEX I.
(Q)
THE CREDIT AGREEMENT SHALL BE FURTHER AMENDED BY (I) ADDING
"EXHIBIT F BORROWING BASE CERTIFICATE" TO THE TABLE OF CONTENTS UNDER
"EXHIBITS", AND (II) ADDING AS EXHIBIT F THEREOF THE EXHIBIT F ATTACHED HERETO
AS ANNEX II.
3.
ACKNOWLEDGEMENT AND WAIVER.
(A)
THE ADMINISTRATIVE AGENT AND LENDERS HEREBY ACKNOWLEDGE RECEIPT OF
ALL ASSIGNMENTS OF LIFE INSURANCE POLICIES REQUIRED UNDER SECTION 11 OF THAT
THIRD AMENDMENT TO CREDIT AGREEMENT DATED AS OF FEBRUARY 9, 2009 AMONG THE
PARTIES HERETO, AND HEREBY WAIVE ANY EVENT OF DEFAULT OR UNMATURED EVENT OF
DEFAULT ARISING FROM ANY FAILURE OF THE COMPANY TO DELIVER SUCH ASSIGNMENTS
PRIOR TO THE DATE SPECIFIED IN SUCH SECTION 11 ("EXISTING DEFAULT").
8
(B)
NOTHING CONTAINED HEREIN SHALL BE DEEMED A WAIVER OF (OR OTHERWISE
AFFECT THE LENDERS' ABILITY TO ENFORCE) ANY OTHER DEFAULT OR EVENT OF DEFAULT
UNDER THE CREDIT AGREEMENT, INCLUDING (I) ANY DEFAULT OR EVENT OF DEFAULT AS MAY
NOW OR HEREAFTER EXIST AND ARISE FROM OR OTHERWISE BE RELATED TO (BUT NOT
OTHERWISE CONSTITUTING) THE EXISTING DEFAULT (INCLUDING WITHOUT LIMITATION ANY
CROSS-DEFAULT ARISING UNDER THE CREDIT AGREEMENT BY VIRTUE OF ANY MATTERS
RESULTING FROM THE EXISTING DEFAULT), AND (II) ANY DEFAULT OR EVENT OF DEFAULT
ARISING AT ANY TIME AFTER THE EFFECTIVE DATE AND WHICH IS THE