SECOND AMENDMENT TO CREDIT AGREEMENT

1. Defined Terms; Incorporation of the Credit Agreement.  All capitalized terms which are not defined hereunder shall have the same meanings as set forth in the Credit Agreement, and the Credit Agreement, to the extent not inconsistent with this Amendment, is incorporated herein by this reference as though the same were set forth in its entirety.  To the extent any terms and provisions of the Credit Agreement are inconsistent with the amendments set forth in paragraph 2 below, such terms and provisions shall be deemed superseded hereby.  Except as specifically set forth herein, the Credit Agreement shall remain in full force and effect and its provisions shall be binding on the Borrowers, Administrative Agent, Collateral Agent, Lenders and the Loan Parties.

 

2. Amendment to the Credit Agreement

 

(a) Section 1.1 of the Credit Agreement is hereby amended by adding the definitions “Incremental Term Loan”, “Prepayment Fee”, “Second Amendment Effective Date” and “Term Loan Commitment Termination Date” to read as follows:

 

“Incremental Term Loan” shall mean that portion of the Term Loan Commitment in an amount not to exceed $4,500,000, which may be funded upon the Second Amendment Effective Date in multiple draws until the Term Loan Commitment Termination Date in accordance with the provisions of Section 2.1(a).

 

“Term Loan Commitment Termination Date” shall mean December 31, 2010.

 

(b) The definition of the terms “LIBOR Rate”, “Term Loan Commitment”, “Term Loan Maturity Date” and “Three Month LIBOR Rate” set forth in Section 1.1 of the Credit Agreement are hereby amended and restated to read as follows:

 

“LIBOR Rate” means, with respect to a Eurodollar Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of: (a) *** and (b) the rate determined by the Administrative Agent to be the offered rate that appears on the Bloomberg BBAM Screen (or any successor thereto) that displays an average British Bankers Association Interest Settlement Rate for deposits in dollars (for delivery on the first day of such Interest Period) with a term equivalent to such interest period, determined as of approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period.  In the event that such rate is not available at such time for any reason , then the “LIBOR Rate” with respect to the Eurodollar Borrowing for such Interest Period shall be determined by the Administrative Agent by reference to such other comparable publicly available service for displaying the offered rate for dollar deposits in the London interbank market as may be selected by the Administrative Agent and, in the absence of availability, such other method as may be selected by the Administrative Agent in the exercise of its reasonable business judgment.

 

“Term Loan Commitment” means, with respect to each Lender, the commitment of such Lender to make a Term Loan in accordance with Section 2.1(a).  The amount of each Lender’s Term Loan Commitment on the Effective Date is set forth on Schedule 2.1.  The aggregate amount of the Lenders’ Term Loan Commitments on the Second Amendment Effective Date is $27,800,000.  Effective upon the assignment of an interest pursuant to Section 10.4, Schedule 2.1 may be amended by the Administrative Agent to reflect such assignment.

(c) Section 2.1(a) of the Credit Agreement is hereby amended and restated to read in its entirety as follows:

(d) Section 2.8(a) of the Credit Agreement is hereby amended and restated to read in its entirety as follows:

(e) Section 2.9(a) of the Credit Agreement is hereby amended and restated to read in its entirety as follows:

 

(a)           The Borrowers shall have the right at any time and from time to time to prepay the Term Loan in whole or in part, subject to (i) prior notice in accordance with paragraph (b) of this Section, (ii) the provisions of Section 2.14 below in an amount of *** or any integral of *** in excess thereof, or the full amount of the Term Loan and (iii) receipt by Administrative Agent (for the benefit of the Lenders) of the Prepayment Fee.

 

(f) Schedules 2.1, 3.17 and 3.23 to the Credit Agreement are hereby deleted and shall be replaced with Schedule 2.1, Schedule 3.17 and Schedule 3.23 attached hereto.

 

3. Representations and Warranties; No Default.  Except for the representations and warranties of the Loan Parties made as of a particular date, the representations and warranties set forth in Article III of the Credit Agreement shall be deemed remade as of the date hereof by the Loan Parties; provided, however, that any and all references to the Credit Agreement in such representations and warranties shall be deemed to include this Amendment.  The Loan Parties hereby represent, warrant and covenant that after giving effect to the amendments contained in this Amendment, no Default or Event of Default has occurred and is continuing .

 

4. Fees and Expenses.  (a) The Borrowers agree to pay on demand all reasonable costs and expenses actually incurred by Administrative Agent and the Lenders in connection with the drafting, negotiation, execution and implementation of this Amendment including, but not limited to, the expenses and reasonable fees of counsel for Administrative Agent and the Lenders.

 

(b) In addition to any other fees and expenses due hereunder on or prior to the date hereof, the Borrowers shall pay to the Lenders an amendment fee in the amount of *** payable on the date hereof, which shall be fully earned and non-refundable on the date hereof.

 

5. Closing Documents.  This Amendment shall be deemed effective as of the date hereof provided that Borrowers shall deliver to Administrative Agent the following documents and/or complete the following requirements (collectively, the “Closing Requirements”) upon execution hereof (in each case in form and substance satisfactory to Administrative Agent and the Lenders):

 

(a) this Amendment executed by the Loan Parties, Administrative Agent and the Lenders;

 

(b) the Substitute Term Loan Note executed by the Borrowers; and

 

(c) such other documents, instruments, agreements, opinions or certificates as required by Administrative Agent.

 

6. Effectuation.  Upon the full execution of this Amendment and delivery or completion, as applicable, of the Closing Requirements, without any further action required by the parties hereto, the amendments to the Credit Agreement contemplated by this Amendment shall be deemed effective as of the date hereof.  There are no other conditions precedent or subsequent to the effectiveness of this Amendment.

 

7. Continuing Effect.  Except as otherwise specifically set forth herein, the provisions of the Credit Agreement shall remain in full force and effect.

 

8. Counterparts.  This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.  A facsimile or other electronic signature to this Amendment shall be deemed an original signature hereunder.