than 0.75 but less than or equal to 1.00
.35
%
V
Greater than 1.00 but less than or equal to 1.25
.40
%
VI
Greater than 1.25
.50
%
THE UNUSED COMMITMENT FEE PERCENTAGE SHALL BE ADJUSTED QUARTERLY ON THE DATE
(EACH A "COMMITMENT FEE CALCULATION DATE") THAT IS FIVE BUSINESS DAYS AFTER THE
DATE ON WHICH BORROWER PROVIDES THE QUARTERLY COMPLIANCE CERTIFICATE IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 11(G)(2) (EACH A "CERTIFICATE DELIVERY
DATE"); PROVIDED, THAT IF EITHER BORROWER FAILS TO PROVIDE THE COMPLIANCE
CERTIFICATE TO LENDER FOR ANY FISCAL QUARTER AS REQUIRED BY AND WITHIN THE TIME
LIMITS SET FORTH IN SECTION 11(G)(2), OR A DEFAULT OR AN EVENT OF DEFAULT
OCCURS, THEN THE UNUSED COMMITMENT FEE PERCENTAGE FROM THE DATE OF SUCH FAILURE
OR DEFAULT OR EVENT OF DEFAULT SHALL BE BASED ON ROW ABOVE ENTITLED "TIER VI"
UNTIL FIVE BUSINESS DAYS AFTER THE APPROPRIATE COMPLIANCE CERTIFICATE IS
PROVIDED OR UNTIL SUCH DEFAULT OR EVENT OF DEFAULT IS CURED OR WAIVED,
RESPECTIVELY, WHEREUPON THE UNUSED COMMITMENT FEE PERCENTAGE SHALL BE DETERMINED
BY THE THEN CURRENT RATIO OF CONSOLIDATED FUNDED DEBT TO CONSOLIDATED NET
WORTH.
EXCEPT TO THE EXTENT OTHERWISE PROVIDED ABOVE, EACH UNUSED COMMITMENT
FEE PERCENTAGE SHALL BE EFFECTIVE FROM ONE COMMITMENT FEE CALCULATION DATE UNTIL
THE NEXT COMMITMENT FEE CALCULATION DATE.
3.
REPRESENTATIONS AND WARRANTIES OF
BORROWER.
BORROWER REPRESENTS, WARRANTS AND COVENANTS TO LENDER THAT:
3.1
BORROWER KNOWS OF NO DEFAULT OR EVENT OF
DEFAULT UNDER THE TERMS AND CONDITIONS OF THE LOAN DOCUMENTS.
3.2
THIS AMENDMENT CONSTITUTES A LEGAL, VALID
AND BINDING OBLIGATION OF BORROWER, ENFORCEABLE AGAINST BORROWER IN ACCORDANCE
WITH ITS TERMS, EXCEPT AS ENFORCEMENT MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM OR SIMILAR LAWS OR EQUITABLE PRINCIPLES RELATING TO
OR LIMITING CREDITORS' RIGHTS GENERALLY.
4
3.3
THE REPRESENTATIONS AND WARRANTIES OF
BORROWER SET FORTH IN SECTION 10 OF THE CREDIT AGREEMENT ARE CORRECT IN ALL
MATERIAL RESPECTS AS THOUGH MADE ON AND AS OF THE DATE OF THIS AMENDMENT
(PROVIDED, IF A REPRESENTATION OR WARRANTY WAS MADE AS OF A SPECIFIC DATE, SUCH
REPRESENTATION OR WARRANTY WAS TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF
THE DATE MADE).
3.4
EXCEPT AS DISCLOSED TO LENDER IN DRAFT
FINANCIAL STATEMENTS PROVIDED FOR THE PERIOD ENDING DECEMBER 31, 2008, SINCE THE
DATE OF THE LAST FINANCIAL STATEMENTS DELIVERED BY BORROWER TO LENDER, THERE HAS
BEEN NO MATERIAL ADVERSE CHANGE IN THE BUSINESS, ASSETS, LIABILITIES (ACTUAL OR
CONTINGENT), OPERATIONS, CONDITION (FINANCIAL OR OTHERWISE) OR PROSPECTS OF
BORROWER AND ITS SUBSIDIARIES TAKEN AS A WHOLE OR IN THE FACTS AND INFORMATION
REGARDING SUCH ENTITIES AS REPRESENTED TO LENDER TO DATE.
3.5
THERE ARE NO ACTIONS, SUITS, INVESTIGATIONS
OR PROCEEDINGS PENDING OR TO BORROWER'S KNOWLEDGE, THREATENED IN ANY COURT OR
BEFORE ANY ARBITRATOR OR GOVERNMENTAL AUTHORITY THAT PURPORT (X) TO MATERIALLY
AND ADVERSELY AFFECT BORROWER OR ANY OF ITS SUBSIDIARIES, OR (Y) TO AFFECT ANY
TRANSACTION CONTEMPLATED HEREBY OR THE ABILITY OF BORROWER TO PERFORM ITS
OBLIGATIONS UNDER THE LOAN DOCUMENTS.
3.6
BORROWER IS