AMENDMENT NO. 1 TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

Exhibit 10.1

AMENDMENT NO. 1 TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of September 4, 2009

AMENDMENT NO. 1 TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this “ Amendment ”) among Switch & Data Holdings, Inc., a Delaware corporation (the “ Borrower ”), the financial institutions and other institutional lenders party hereto, and Royal Bank of Canada, as administrative agent for the Lenders (as defined in the Credit Agreement referred to below) and as collateral agent for the Secured Parties (as defined in the Credit Agreement referred to below) (the “ Administrative Agent ”).

RECITALS:

WHEREAS, the Borrower, the financial institutions and other institutional lenders party thereto (the “ Lenders ”), the Administrative Agent and the other agents party thereto have entered into that certain Fourth Amended and Restated Credit Agreement dated as of March 27, 2008 (as further amended, supplemented or otherwise modified, the “ Credit Agreement ”; capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement);

WHEREAS, the Borrower has requested that the Lenders agree to amend certain provisions of the Credit Agreement as hereinafter set forth;

WHEREAS, the Administrative Agent and the Lenders are willing to amend the Credit Agreement as provided herein.

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

SECTION 1. AMENDMENTS TO CREDIT AGREEMENT

 

1.

Section 1.1 of the Credit Agreement is hereby amended by inserting the following defined terms in their proper alphabetical order:

“ Amendment No. 1 ” means that Amendment No. 1 to this Agreement, dated as of September 4, 2009, among the Borrower, the Guarantors, the Administrative Agent and the Lenders listed on the signature pages thereto.

“ Amendment No. 1 Effective Date ” has the meaning set forth in Amendment No. 1.

“ Additional Delayed Draw Term Loan ” has the meaning assigned to such term in Section 2.1.A(iv) .

“ Additional Delayed Draw Term Loan Availability Period ” means the period from and including the Amendment No. 1

Effective Date to and including the earlier to occur of (i) the twelve-month anniversary of the Amendment No. 1 Effective Date and (ii) the date on which all of the Additional Delayed Draw Term Loan Commitments terminate or expire pursuant to Section 2.5 or Section 7.16 .

“ Additional Delayed Draw Term Loan Commitment ” means the commitment of an Additional Delayed Draw Term Loan Lender to make an Additional Delayed Draw Term Loan to the Borrower pursuant to Section 2.1.A(iv), up to the amount set forth on Schedule 2.1 which may be supplemented from time to time by the Administrative Agent prior to any funding of the Additional Delayed Draw Term Loan, to include additional Additional Delayed Draw Term Loan Commitments so long as the aggregate amount of Additional Delayed Draw Term Loan Commitments does not exceed $100,000,000, as the Additional Delayed Draw Term Loan Commitment of such Additional Delayed Draw Term Loan Lender (or as set forth in the Register pursuant to any assignment of any such Additional Delayed Draw Term Loan Commitment in accordance with the terms hereof) and

“ Additional Delayed Draw Term Loan Commitments ” means all such commitments of the Additional Delayed Draw Term Loan Lenders in the aggregate.

“ Additional Delayed Draw Term Loan Lender ” means the Persons identified as “Additional Delayed Draw Term Loan Lenders” and listed on Schedule 2.1 (as may be supplemented from time to time), together with (i) their successors and permitted assigns pursuant to Section 9.1 and (ii) any other Person that becomes a party hereto pursuant to a joinder agreement in respect of the Additional Delayed Draw Term Loans, in form and substance satisfactory to the Administrative Agent.

“ Additional Delayed Draw Term Loan Maturity Date ” means March 27, 2014.

“ Additional Delayed Draw Term Loan Note ” means (i) the promissory notes of the Borrower issued pursuant to Section 2.1.E in respect of an Additional Delayed Draw Term Loan and (ii) any promissory note issued by the Borrower pursuant to Section 9.1.B in connection with an assignment of an Additional Delayed Draw Term Loan of any of the Additional Delayed Draw Term Loan Lenders, in each case substantially in the form of Exhibit M-5 hereto.

 

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“ Incremental Term Loan Notes ” means (i) the promissory notes of the Borrower issued pursuant to Section 2.9 on the date of funding in respect of the Incremental Term Loan made by each Incremental Term Loan Lender and (ii) any promissory note issued by the Borrower pursuant to Section 9.1.B in connection with assignments of the Incremental Term Loan of any of the Incremental Term Loan Lenders, in each case substantially in the form of Exhibit M-4 hereto.

“ Total Utilization of Additional Delayed Draw Term Loan Commitments ” means, as at any date of determination, the aggregate principal amount of all outstanding advances of Additional Delayed Draw Term Loans.

“ Unused Additional Delayed Draw Term Loan Commitments ” means, for any period, the average of the daily excess of the Additional Delayed Draw Term Loan Commitments in effect during such period over the average daily aggregate principal amount of Additional Delayed Draw Term Loans outstanding during such period.

 

2.

The definition of “Adjusted LIBOR Rate ” in Section 1.1 of the Credit Agreement is hereby amended by deleting such definition in its entirety and replacing it with the following:

“ Adjusted LIBOR Rate ” means, with respect to any LIBOR Rate Loan for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next  ¹ / 16 of 1%) equal to the higher of (a) the LIBOR Rate for such Interest Period and (b) 2.00%.

 

3.

The definition of “Alternate Base Rate ” in Section 1.1 of the Credit Agreement is hereby amended by deleting such definition in its entirety and replacing it with the following:

“ Alternate Base Rate ” means, for any day, a rate per annum equal to the greater of (i) the Prime Rate in effect on such day, (ii) the Federal Funds Effective Rate in effect on such day plus  ¹ / 2 of 1% and (iii) 3.00% per annum. Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.

 

4.

The definition of “Annualized Consolidated Fixed Charge Coverage Ratio ” in Section 1.1 of the Credit Agreement is hereby amended by deleting such definition in its entirety and replacing it with the following:

“ Annualized Consolidated Fixed Charge Coverage Ratio ” means, as at the last day of any Fiscal Quarter, the ratio of (i) Annualized Consolidated EBITDA as of such date to (ii) (x) Consolidated Fixed Charges as of such date minus (y) the aggregate of all expenditures by the members of the Borrower Group during the twelve month period ending prior to such date of calculation for expansion, fill-in capacity adds and customer installations, which would be capitalized or reflected as capital expenditures under GAAP on the most recent quarterly financial statements delivered to the Administrative Agent pursuant to Section 5.1 .

 

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5.

The definition of “Applicable Margin ” in Section 1.1 of the Credit Agreement is hereby amended by deleting such definition in its entirety and replacing it with the following:

“ Applicable Margin ” for each Loan (as applicable) means, for the period from the first Business Day immediately following each day of delivery of any certificate delivered in accordance with the following sentence (each a “ Start Date ”) to and including the applicable End Date described below, a percentage per annum based on the then-existing Consolidated Total Leverage Ratio as set forth below:

 

 

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For purposes of calculating the Applicable Margin, the Consolidated Total Leverage Ratio shall be determined based on a Compliance Certificate delivered by the Borrower to the Administrative Agent within 45 days after the last day of any fiscal quarter of the Parent, which certificate shall set forth the calculation of the Consolidated Total Leverage Ratio for the Test Period ended immediately prior to the relevant Start Date and the Applicable Margin which shall be thereafter applicable (until the same is changed or ceases to apply in accordance with the following sentences). The Applicable Margin so determined shall apply, except as set forth in the succeeding sentence, from the Start Date to the earlier of (x) the first Business Day immediately following the delivery of the next Compliance Certificate to the Administrative Agent and (y) the first Business Day immediately following the date which is 45 days following the last day of the fiscal quarter in which the previous Start Date occurred (the “ End Date ”), at which time, if no Compliance Certificate has been delivered to the Administrative Agent indicating an entitlement to a different Applicable Margin, the Applicable Margin shall be 4.50% per annum for Term Loan A LIBOR Rate Loans, Delayed Draw Term Loan LIBOR Rate Loans, Revolving Loan LIBOR Rate Loans and Additional Delayed Draw Term Loan LIBOR Rate Loans and 3.50% per annum for Term Loan A ABR Loans, Delayed Draw Term Loan ABR Loans, Revolving Loan ABR Loans and Additional Delayed Draw Term Loan ABR Loans; provided , that, if any aforementioned Compliance Certificate or if the information set forth in such Compliance Certificate is at any time restated or otherwise revised (including as a result of an audit) or otherwise proven to be false or incorrect such that the Applicable Margin would have been higher than was otherwise in effect during any period, without constituting a waiver of any Potential Event of Default or Event of Default arising as a result thereof, the Applicable Margin shall be recalculated at such higher rate for any applicable periods and shall be due and payable on demand. Notwithstanding anything to the contrary contained above in this definition, the Applicable Margin shall also be 4.50% per annum for Term Loan A LIBOR Rate Loans, Delayed Draw Term Loan LIBOR Rate Loans, Revolving Loan LIBOR Rate Loans and Additional Delayed Draw Term Loan LIBOR Rate Loans and 3.50% per annum for Term Loan A ABR Loans, Delayed Draw Term Loan ABR Loans, Revolving Loan ABR Loans and Additional Delayed Draw Term Loan ABR Loans at all times during which there shall exist a Potential Event of Default or an Event of Default. Nothing in this paragraph is intended to limit or affect in any way the rights and remedies of the Administrative Agent and the Lenders (including, without limitation, the right to demand default interest) upon the occurrence of an Event of Default.”

 

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6.

The definition of “ Class ” in Section 1.1 of the Credit Agreement is hereby amended by:

 

(a)

inserting “, an Additional Delayed Draw Term Loan” immediately after the words “an Incremental Term Loan” therein; and

 

(b)

inserting “, a Delayed Draw Term Loan Commitment” immediately after the words “an Incremental Term Loan Commitment” therein.

 

7.

The definition of “ Commitments ” in Section 1.1 of the Credit Agreement is hereby amended by inserting “, Additional Delayed Draw Term Loan Commitments,” immediately after the words “Incremental Term Loan Commitments,” therein.

 

8.

The definition of “ Fee Letter ” in Section 1.1 of the Credit Agreement is hereby amended by inserting “or the Administrative Agent” immediately after the words “between any of the Lenders” therein.

 

9.

The definition of “LIBOR Rate ” in Section 1.1 of the Credit Agreement is hereby amended by deleting such definition in its entirety and replacing it with the following:

“ LIBOR Rate ” LIBOR Rate “ means, for any Interest Period with respect to any LIBOR Loan:

(i) the rate of interest per annum, expressed on the basis of a year of 360 days, determined by the Administrative Agent, rounded upwards, if necessary to the nearest whole multiple of one-sixteenth of one percent (  ¹ / 16 th%), which is equal to the offered rate that appears on the page of the Reuters LIBOR01 screen (or any successor thereto as may be selected by the Administrative Agent) that displays an average British Bankers Association Interest Settlement Rate for deposits in Dollars 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, or

(ii) if the rates referenced in the preceding subsection (i) are not available, the rate per annum determined by the Administrative Agent as the rate of interest, expressed on a basis of 360 days (rounded upward to the nearest whole multiple of one-sixteenth of one percent (  ¹ / 16 th %) at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the LIBOR Rate Loan being made,

 

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continued or converted by the Administrative Agent and with a term and amount comparable to such Interest Period and principal amount of such LIBOR Loan as would be offered by the Administrative Agent’s London Branch to major banks in the offshore Dollar market at their request at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period.

 

10.

The definition of “ Permitted Liens ” in Section 1.1 of the Credit Agreement is hereby amended by inserting “ Section 6.1(iv) ,” immediately after the words “permitted under” therein in clause (xiii) thereof.

 

11.

The definition of “ Regulation D ” in Section 1.1 of the Credit Agreement is hereby deleted in its entirety.

 

12.

The definition of “ Statutory Reserve Rate ” in Section 1.1 of the Credit Agreement is hereby deleted in its entirety.

 

13.

The definition of “ Term Loan Commitments ” in Section 1.1 of the Credit Agreement is hereby amended by inserting “, Additional Delayed Draw Term Loan Commitments” immediately after the words “Delayed Draw Term Loan Commitments” therein.

 

14.

The definition of “ Term Loan Lenders ” in Section 1.1 of the Credit Agreement is hereby amended by inserting “, Additional Delayed Draw Term Loan Lenders” immediately after the words “Delayed Draw Term Loan Lenders” therein.

 

15.

The definition of “ Term Loan Notes ” in Section 1.1 of the Credit Agreement is hereby amended by inserting “, Additional Delayed Draw Term Loan Notes” immediately after the words “Delayed Draw Term Loan Notes” therein.

 

16.

The definition of “ Term Loans ” in Section 1.1 of the Credit Agreement is hereby amended by inserting “, the Additional Delayed Draw Term Loan” immediately after the words “Delayed Draw Term Loan” therein.

 

17.

Section 2.1.A of the Credit Agreement is hereby amended by adding a new clause (iv)  as follows:

(iv) Additional Delayed Draw Term Loan . Subject to the terms and conditions hereof (including without limitation the conditions in Section 3.2 ) and in reliance upon the representations and warranties set forth herein, each Additional Delayed Draw Term Loan Lender severally agrees to make term loans (each, an “ Additional Delayed Draw Term Loan ”) to the Borrower from time to time during the Additional Delayed Draw Term Loan Availability Period in an aggregate amount up to its Pro Rata Share of the Additional Delayed Draw Term Loan Commitments, but not exceeding its Additional Delayed Draw Term Loan Commitment.

 

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The amount of each Additional Delayed Draw Term Loan Lender’s Additional Delayed Draw Term Loan Commitment is set forth opposite its name on Schedule 2.1 hereto (as may be supplemented from time to time pursuant to the provisions hereof), and the aggregate amount of the Additional Delayed Draw Term Loan Commitments is as set forth on Schedule 2.1 ; provided that the Additional Delayed Draw Term Loan Commitments of the applicable Additional Delayed Draw Term Loan Lenders shall be adjusted to give effect to any assignments of such Additional Delayed Draw Term Loan Lender’s Additional Delayed Draw Term Loan Commitments pursuant to Section 9.1 ; and provided , further that the amount of the Additional Delayed Draw Term Loan Commitments shall be reduced from time to time by the amount of any reductions thereto made pursuant to Section 2.5 . Each Additional Delayed Draw Term Loan Lender’s Additional Delayed Draw Term Loan Commitments shall expire immediately and without further action at the expiration of the Additional Delayed Draw Term Loan Availability Period, and no advances of Additional Delayed Draw Term Loans shall be made after such date. Proceeds of the Additional Delayed Draw Term Loans borrowed under this Section 2.1.A(iv) and subsequently repaid or prepaid may not be reborrowed.

 

18.

Section 2.1.B(i) of the Credit Agreement is hereby amended by deleting such clause in its entirety and replacing it with the following:

(i) ABR Loans (other than Additional Delayed Draw Term Loan ABR Loans) shall be in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount and LIBOR Rate Loans (other than Additional Delayed Draw Term Loan LIBOR Rate Loans) shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount. Additional Delayed Draw Term Loan ABR Loans shall be in an aggregate minimum amount of $25,000,000 and integral multiples of $100,000 in excess of that amount and Additional Delayed Draw Term Loan LIBOR Rate Loans shall be in an aggregate minimum amount of $25,000,000 and integral multiples of $100,000 in excess of that amount.

 

19.

Section 2.1.D(ii) of the Credit Agreement is hereby amended by inserting “, Additional Delayed Draw Term Loan Commitment” after the words “Delayed Draw Term Loan Commitment” in subclause (a) therein.

 

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20.

Section 2.1.E of the Credit Agreement is hereby amended by deleting the second paragraph thereof in its entirety and replacing it with the following:

The Borrower shall execute and deliver on the date of the initial funding of a Delayed Draw Term Loan, the date of the funding of an Incremental Term Loan and on or before the date of the initial funding of an Additional Delayed Draw Term Loan and the date of any assignment or transfer of any Loan or Commitment to each Lender who so requests (or to the Administrative Agent on behalf of that Lender) (i) a Delayed Draw Term Loan Note substantially in the form of Exhibit M-2 hereto to evidence that Lender’s Delayed Draw Term Loan, in the principal amount of that Lender’s Delayed Draw Term Loan Commitment and with other appropriate insertions, as applicable and/or (ii) an Incremental Term Loan Note substantially in the form of Exhibit M-4 hereto to evidence that Lender’s Incremental Term Loans, in the principal amount of that Lender’s Incremental Term Loan Commitment and with other appropriate insertions, as applicable and/or (iii) an Additional Delayed Draw Term Loan Note substantially in the form of Exhibit M-5 hereto to evidence that Lender’s Additional Delayed Draw Term Loan, in the principal amount of that Lender’s Additional Delayed Draw Term Loan Commitment and with other appropriate insertions, as applicable.

 

21.

Section 2.3.B of the Credit Agreement is hereby amended by inserting “no Interest Period with respect to any portion of the Additional Delayed Draw Term Loan shall extend beyond the Additional Delayed Draw Term Loan Maturity Date;” immediately after the words “Incremental Term Loan Maturity Date;” in subclause (v) of the proviso therein.

 

22.

Section 2.4.B of the Credit Agreement is hereby amended by:

 

(a)

adding the words “ plus (iii) the Unused Additional Delayed Draw Term Loan Commitments multiplied by 1.00% per annum” immediately after the words “0.75% per annum” therein and immediately preceding the “.”; and

 

(b)

adding the words “, and with respect to the Unused Additional Delayed Draw Term Loan Commitments, the last day of the Additional Delayed Draw Term Loan Availability Period” immediately after the words “Availability Period” therein and immediately preceding the “.”.

 

23.

Section 2.4 of the Credit Agreement is hereby amended by adding a new Section 2.4.D as follows:

D. Funding Fees for Additional Delayed Draw Term Loans . The Borrower shall pay to the Administrative Agent, for the account of the Additional Delayed Draw Term Loan Lenders, on each date of funding Additional Delayed Draw Term Loans, a funding fee as agreed between the Borrower and the Administrative Agent in a Fee Letter dated September 2, 2009 between the Borrower and the Administrative Agent.

 

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24.

Section 2.5.A(i) of the Credit Agreement is hereby amended by deleting such clause in its entirety and replacing it with the following:

(i) On the Revolving Loan Maturity Date, the entire remaining unpaid principal amount of the Revolving Loans shall be due and payable by the Borrower. On each of the dates set forth below, principal payments of the Term Loans A, the Delayed Draw Term Loans and the Additional Delayed Draw Term Loans shall be payable by the Borrower in the amounts set forth opposite each such date:

 

 

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The Incremental Term Loans shall be repaid in accordance with the amortization schedule for such Incremental Term Loans in the Joinder Agreement, which amortization schedule shall be set at the same percentage that is applicable to the Term Loans.

Notwithstanding the foregoing, the Incremental Term Loans, together with all other amounts owed hereunder with respect thereto, shall, in any event, be paid in full no later than the latest of the Term Loan A Maturity Date or the Delayed Draw Term Loan Maturity Date, as the case may be.

The Borrower shall make all such amounts due and payable under this subsection A available to the Administrative Agent not later than 12:00 Noon (New York City time) on the applicable payment date, in immediately available funds in Dollars, at the Funding and Payment Office.”

 

25.

Section 2.5.B(ii) of the Credit Agreement is hereby amended by deleting such clause in its entirety and replacing it with the following:

(ii) Voluntary Reductions of Commitments . The Borrower may, upon not less than three Business Days’ prior written notice given to the Administrative Agent by 12:00 Noon (New York time) on the date required, at any time and from time to time, without premium or penalty, terminate in whole or permanently reduce in part the Revolving Loan Commitments, the Delayed Draw Term Loan Commitments or the Additional Delayed Draw Term Loan Commitments; provided that (a) the Borrower may not terminate or reduce the Revolving Loan Commitments to an amount less than the Total Utilization of Revolving Loan Commitments, (b) the Borrower may not terminate or reduce the Delayed Draw Term Loan Commitments to an amount less than the Total Utilization of Delayed Draw Term Loan Commitments, (c) the Borrower may not terminate or reduce the Additional Delayed Draw Term Loan Commitments to an amount less than the Total Utilization of Additional Delayed Draw Term Loan Commitments, and (d) any such partial reduction of the Revolving Loan Commitments, the Delayed Draw Term Loan Commitments or the Additional Delayed Draw Term Loan Commitments (as the case may be) shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount. The Borrower’s notice to the Administrative Agent shall designate (x) the date (which shall be a Business Day) of such termination or reduction, (y) whether the termination or reduction applies to the Revolving Loan Commitments, the Delayed Draw Term Loan Commitments or the Additional Delayed Draw Term Loan Commitments and (z) the amount of any such reduction or

 

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termination. Notice of such reduction or termination having been given as aforesaid, such termination or reduction of the specified Commitments shall be effective on the date specified in the Borrower’s notice and shall reduce the specified Commitment of each Lender proportionately by its Pro Rata Share thereof.

 

26.

Section 2.5.B(iii)(a) of the Credit Agreement is hereby amended by deleting the words “3:00 to 1.00” in subclauses (ii) and (iii) therein and replacing each occurrence therein with the words “3.50 to 1.00”.

 

27.

Section 2.5.B(v) of the Credit Agreement is hereby amended by adding at the end thereof the following:

The Borrower shall from time to time prepay the Additional Delayed Draw Term Loan to the extent necessary so that the Total Utilization of Additional Delayed Draw Term Loan Commitments shall not at any time exceed the Additional Delayed Draw Term Loan Commitments then in effect, unless the Total Utilization of Additional Delayed Draw Term Loan Commitments exceeds the Additional Delayed Draw Term Loan Commitments by virtue of the expiration of the Additional Delayed Draw Term Loan Commitments at the end of the Additional Delayed Draw Term Loan Availability Period pursuant to clause (i) of the definition thereof. The amount due upon any such prepayment shall be equal to the principal amount being so paid, plus accrued and unpaid interest thereon, plus, with respect to any Loan not prepaid on the expiration of the Interest Period applicable thereto, any amount payable pursuant to Section 2.6.D .

 

28.

Section 2.5.B(vi) of the Credit Agreement is hereby amended by deleting the words “$10,000,000” in each occurrence that they appear therein and replacing each such occurrence with the words “$15,000,000”.

 

29.

Sections 2.5.C(i) and (ii) are hereby amended by deleting such sections in their entirety and replacing them with the following:

(i) Any voluntary prepayments pursuant to Section 2.5.B(i) shall be applied as specified by the Borrower in the applicable notice of prepayment; provided that the Borrower may not make any voluntary prepayment of the Additional Delayed Draw Term Loan as long as any Term Loan A Loans are outstanding; provided further that if the Borrower fails to specify the Loans to which any such prepayment shall be applied, such prepayment shall be applied first to repay Term Loan A in the inverse order of maturity, second to repay the Delayed Draw Term Loan in the inverse order of maturity, third to repay the Additional Delayed Draw Term Loan in the inverse order of maturity and fourth to repay

 

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outstanding Revolving Loans (such voluntary prepayment shall not give rise to any permanent reduction in the Revolving Loan Commitment).

(ii) Any mandatory prepayments pursuant to Section 2.5.B(iii)(a) through (d)  shall be applied first to repay Term Loan A, the Delayed Draw Term Loans and the Additional Delayed Draw Term Loans, each in the inverse order of maturity, ratably in accordance with the amounts of each such Class of Term Loans then outstanding and second to repay outstanding Revolving Loans and, after the occurrence and during the continuance of a Potential Event of Default or an Event of Default, to the provision of cash collateral in respect of Letter of Credit Obligations in an amount equal to 105% of the Letter of Credit Obligations and to permanently reduce the Revolving Loan Commitment.

 

30.

Section 5.3 of the Credit Agreement is hereby amended by inserting the words “, the Additional Delayed Draw Term Loan Maturity Date” therein immediately after the words “Delayed Draw Term Loan Maturity Date”.

 

31.

Section 5.13.A of the Credit Agreement is hereby amended by inserting “, the Additional Delayed Draw Term Loans” immediately after the words “Delayed Draw Term Loans” in subclause (1) therein.

 

32.

Section 5.15 of the Credit Agreement is hereby amended by inserting “, the Additional Delayed Draw Term Loan” immediately after the words “Delayed Draw Term Loan” (i) in the second line of the second sentence therein, (ii) in the fourth line of the second sentence therein and (iii) in the tenth line of the second sentence therein.

 

33.

Section 6.1 of the Credit Agreement is hereby amended by (i) deleting “$10,000,000” in the fourth line of subclause (iv) therein and replacing it with “$35,000,000” and (ii) by restating clause (c) of such subclause (iv) to read as follows:

“(c) any Lien securing such Indebtedness shall attach and be limited to the acquired assets within 90 days after the acquisition thereof;”.

 

34.

Section 6.6 of the Credit Agreement is hereby amended by deleting such section in its entirety and replacing it with the following:

Section 6.6. Financial Covenants.

A. Consolidated Total Leverage Ratio . As of the end of each Fiscal Quarter ending on or after the Closing Date, the Consolidated Total Leverage Ratio shall not exceed the corresponding ratio set forth in Section A of Schedule 6.6 for such Fiscal Quarter.

 

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B. Consolidated Senior Leverage Ratio . As of the end of each Fiscal Quarter ending on or after the Closing Date, the Consolidated Senior Leverage Ratio shall not exceed the corresponding ratio set forth in Section B of Schedule 6.6 for such Fiscal Quarter.

C. Annualized Consolidated Interest Coverage Ratio . As of the end of each Fiscal Quarter ending on or after the Closing Date, Annualized Consolidated Interest Coverage Ratio shall not be less than the corresponding ratio set forth in Section C of Schedule 6.6 for such Fiscal Quarter.

D. Annualized Consolidated Fixed Charge Coverage Ratio . As of the end of each Fiscal Quarter set forth in Section D of Schedule 6.6 , the Annualized Consolidated Fixed Charge Coverage Ratio shall not be less than the corresponding ratio set forth in Section D of Schedule 6.6 for such Fiscal Quarter.

E. Maximum Capital Expenditures . The Borrower shall not, and shall not permit any member of the Borrower Group to, make Consolidated Capital Expenditures exceeding the amount set forth in Section E of Schedule 6.6 for any Fiscal Year; provided , that so long as no Event of Default or Potential Event of Default shall exist and be continuing or would result therefrom, to the extent that any portion of any amount set forth in Section E of Schedule 6.6 is not expended in the Fiscal Year for which it is permitted in Section E of Schedule 6.6 , (i) for the Fiscal Year ended December 31, 2009 one hundred percent (100%) of such unused amount may be carried over for expenditure in the Fiscal Year ended December 31, 2010 and, thereafter fifty percent (50%) of such unused amount may be carried over for expenditure in the immediately succeeding Fiscal Year (each such amount, the “ Carryover Amount ”), (ii) the Carryover Amount for any such Fiscal Year shall not exceed one hundred percent (100%) or fifty percent (50%), as applicable, of the amount of permitted Consolidated Capital Expenditures set forth in Section E of Schedule 6.6 for the applicable Fiscal Year, and (iii) Consolidated Capital Expenditures made during a Fiscal Year shall be allocated first to the amount of permitted Consolidated Capital Expenditures set forth above opposite such Fiscal Year and second to the Carryover Amount.

 

35.

Article IX of the Credit Agreement is hereby amended by adding a new Section 9.27 thereto as follows:

 

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Section 9.27. Consent of the Borrower to Certain Amendments and Waivers . Notwithstanding anything to the contrary contained herein:

(i) the Borrower agrees that it will not sign or otherwise consent to any amendment, modification, termination or waiver of any provision of this Agreement or of the Notes that requires the written consent of the Required Lenders unless the Borrower shall have received the written consent of sufficient Additional Delayed Draw Term Lenders such that if the Unused Additional Delayed Draw Term Loan Commitments of the Additional Delayed Draw Term Lenders were included in determining whether the Required Lenders had consented to such amendment, modification, termination or waiver, the Required Lenders would have consented to such amendment, modification, termination or waiver, and

(ii) the Borrower agrees that it will not sign or otherwise consent to any amendment, modification, termination or waiver of any provision of this Agreement or of the Notes that requires the written consent of the Supermajority Lenders unless the Borrower shall have received the written consent of sufficient Additional Delayed Draw Term Lenders such that if the Unused Additional Delayed Draw Term Loan Commitments of the Additional Delayed Draw Term Lenders were included in determining whether the Supermajority Lenders had consented to such amendment, modification, termination or waiver, the Supermajority Lenders would have consented to such amendment, modification, termination or waiver.

 

36.

The schedules to the Credit Agreement are hereby amended by:

 

(a)

deleting Schedule 2.1 in its entirety and replacing it with a new Schedule 2.1 attached hereto as Annex A ; and

 

(b)

deleting Schedule 6.6 in its entirety and replacing it with a new Schedule 6.6 attached hereto as Annex B .

 

37.

The exhibits to the Credit Agreement are hereby amended by:

 

(a)

deleting Exhibit G in its entirety and replacing it with a new Exhibit G attached hereto as Annex C ;

 

(b)

deleting Exhibit H in its entirety and replacing it with a new Exhibit H attached hereto as Annex D ; and

 

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(c)

adding a new Exhibit M-5 attached hereto as Annex E as an Exhibit to the Credit Agreement immediately following Exhibit M-4 thereto.

SECTION 2. CLASSIFICATION OF COMMITMENTS; ETC.

A. Effective upon the Amendment No. 1 Effective Date (as defined below) each Lender, including Bank of America, N.A., SunTrust Bank, U.S. Bank National Association, Caterpillar Financial Services Corpora