SIXTH AMENDMENT TO CREDIT AGREEMENT

Exhibit 10.1

SIXTH AMENDMENT

TO

CREDIT AGREEMENT

DATED FEBRUARY 27, 2004

BY, BETWEEN AND AMONG

BEASLEY MEZZANINE HOLDINGS, LLC,

BANK OF MONTREAL, CHICAGO BRANCH, AS ADMINISTRATIVE AGENT

AND

THE LENDERS PARTY THERETO

This SIXTH AMENDMENT (the “ Amendment ”) dated as of March 13, 2009, is entered into by, between and among BEASLEY MEZZANINE HOLDINGS, LLC (“ Borrower ”), BEASLEY BROADCAST GROUP, INC. (“ Holdings ”), THE OTHER CREDIT PARTIES (as defined in the Credit Agreement), BANK OF MONTREAL, CHICAGO BRANCH (“ Bank of Montreal ”), as administrative agent for Lenders (in such capacity the “ Administrative Agent ”), and THE LENDERS (as defined in the Credit Agreement).

WHEREAS, Borrower, the Lenders and the Administrative Agent are parties to that certain Credit Agreement dated as of February 27, 2004, as amended by that certain First Amendment to Credit Agreement dated June 18, 2004, that certain Second Amendment to Credit Agreement dated June 27, 2005, that certain Third Amendment to Credit Agreement dated January 30, 2006, that certain Fourth Amendment to Credit Agreement dated February 1, 2007, and that certain Fifth Amendment to Credit Agreement dated April 13, 2007 (as amended, the “ Credit Agreement ”); and

WHEREAS , pursuant to the Credit Agreement, the Lenders have agreed to make, and have made, certain Loans and other extensions of credit to Borrower; and

WHEREAS, Borrower and Lenders desire, among other things, to (i) decrease the aggregate amount of the Revolving Loan Commitments by $37,131,944.45 to $65,000,000.00, and (ii) terminate the Incremental Facility; and

WHEREAS , after giving effect to this Amendment, the Lenders shall have extended to Borrower revolving and term credit facilities in the aggregate amount of $183,000,000.00, of which $173,500,000 is outstanding; and

WHEREAS, Borrower, the Administrative Agent and the Lenders desire to enter into this Amendment to effect the foregoing and to amend certain other provisions of the Credit Agreement as more particularly set forth below;

NOW, THEREFORE, in consideration of the foregoing, the terms, covenants and conditions contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower, the Administrative Agent and the Lenders hereby agree as follows:

1. Defined Terms . Capitalized terms which are used herein without definition and which are defined in the Credit Agreement shall have the same meanings herein as in the Credit Agreement.

2. Amendments to Credit Agreement . Subject to the satisfaction of the conditions set forth in Section 4 below, the Credit Agreement is hereby amended as follows:

A. The following defined terms set forth in subsection 1.1 of the Credit Agreement are hereby deleted in their entirety and replaced with the following new definitions:

“ Adjusted LIBOR Rate ” means, for any Interest Rate Determination Date with respect to an Interest Period for a LIBOR Rate Loan, the rate per annum obtained by dividing (i) the arithmetic mean (rounded upward to the nearest  ¹ / 16 of one percent) of the offered rates for Dollar deposits with maturities comparable to the Interest Period for which such Adjusted LIBOR Rate will apply, appearing on Reuters Screen LIBOR01 Page (or any successor page) as of 11:00 A.M. (London, England time) on such Interest Rate Determination Date, as determined by the Administrative Agent by (ii) a percentage equal to 100% minus the stated maximum rate of all reserve requirements (including any marginal, emergency, supplemental, special or other reserves) applicable on such Interest Rate Determination Date to any member bank of the Federal Reserve System in respect of “Eurocurrency liabilities” as defined in Regulation D (or any successor category of similar liabilities under Regulation D).

“ Base Rate ” means, for any day, the greatest of (i) the Prime Rate, (ii) the rate which is  ¹ / 2 of 1.00% in excess of the Federal Funds Effective Rate, and (iii) the LIBOR Quoted Rate for such day plus 1.00%.

“ Permitted Equity Financings ” means the issuance of unsecured subordinated Indebtedness (including convertible debt) and/or preferred equity of Holdings (or a newly created wholly-owned Subsidiary of Holdings, which Subsidiary may hold capital stock of Borrower (it being understood and agreed that all of the outstanding Equity Securities of Borrower shall at all times be pledged as Collateral pursuant to documentation in form and substance reasonably satisfactory to Administrative Agent), any such newly created Subsidiary being referred to herein as “ NewHoldco ”) in an aggregate combined principal amount not to exceed Thirty Million Dollars ($30,000,000), the Net Debt Securities Proceeds and/or the Net Equity Securities Proceeds of which are contributed as common equity to Borrower and are applied by Borrower as required by subsection 2.4B(iii)(b) to prepay Loans; provided that (a) Borrower and its Subsidiaries shall not have any obligations or liabilities under or in respect of any such Permitted Equity Financing, (b) all such Permitted Equity Financings shall be issued pursuant to documentation containing rates, maturities, amortizations, covenants, remedies and other material terms (including subordination provisions if required by Administrative Agent) in form and substance reasonably satisfactory to Administrative Agent, and (c) none of the unsecured subordinated Indebtedness and/or preferred equity issued pursuant to any Permitted Equity Financing shall be scheduled or permitted to mature prior to the scheduled maturity date of the Term Loans, or any Revolving Loan without the consent of Requisite Lenders; provided further , that (i) in the event Holdings elects to create NewHoldco for the purpose of issuing all or any portion of such Permitted Equity Financings, NewHoldco shall be created pursuant to documentation in form and substance reasonably satisfactory to Administrative Agent, and (ii) Holdings, NewHoldco, Borrower and the other Credit Parties shall enter into such amendments and modifications of this Agreement and the other Loan Documents as Administrative Agent shall reasonably request to reflect issuance of the Permitted Equity Financings, the existence of NewHoldco and preserve and maintain the rights and remedies of Administrative Agent

 

2

and Lenders (including preserving and maintaining the pledge of capital stock of Borrower pursuant to the Collateral Documents) in full force and effect as contemplated by this Agreement and the other Loan Documents prior to such issuance of preferred equity Securities or the creation of NewHoldco, as the case may be.

“ Revolving Loans ” means the Loans made or maintained by Lenders to Borrower pursuant to subsection 2.1A(ii).

“ Term Loans ” means the Loans made by Lenders to Borrower pursuant to subsection 2.1A(i).

B. The defined term “ Consolidated Operating Cash Flow ” set forth in subsection 1.1 of the Credit Agreement is hereby amended by deleting clause (b)(x) in its entirety and substituting in its place the following:

(x) fees and expenses paid in Cash by Borrower and its Subsidiaries in connection with the effectiveness of the Sixth Amendment to this Agreement to the extent included in determining net income for such period,

C. The following new defined terms are hereby added to subsection 1.1 of the Credit Agreement:

“ Effective Date ” means the “Effective Date” as defined and used in the Sixth Amendment.

“ LIBOR Quoted Rate ” means, for any day, the Adjusted LIBOR Rate for an Interest Period of one month commencing on that day or, if such day is not a Business Day, on the Business Day preceding such day.

“ Net Debt Securities Proceeds ” shall have the meaning assigned to that term in subsection 2.4B(iii)(b)(1).

“ Net Equity Securities Proceeds ” shall have the meaning assigned to that term in subsection 2.4B(iii)(b)(2).

“ Sixth Amendment ” means the Sixth Amendment to Credit Agreement dated March 13, 2009, by and among Borrower, Holdings, the other Credit Parties, Administrative Agent and the Lenders.

D. The following defined terms set forth in subsection 1.1 of the Credit Agreement are hereby deleted in their entirety: “ Incremental Facility ”, “ Incremental Loan ”, “ Incremental Revolving Loan ”, “ Incremental Revolving Loan Notes ”, “ Incremental Term Loan ”, “ Incremental Loan Commitment Termination Date ”, “ Incremental Term Loan Notes ”, “ Net Securities Proceeds ”, and “ Notice of Incremental Term Loan Request ”.

E. Subsection 2.1(A)(ii) of the Credit Agreement is hereby amended by deleting the present text thereof in its entirety and substituting in its place the following:

(ii) Revolving Loans . Each Revolving Lender severally agrees, subject to the limitations set forth below with respect to the maximum amount of Revolving Loans

 

3

permitted to be outstanding from time to time, to lend to Borrower from time to time during the period from the Effective Date to but excluding the Revolving Loan Commitment Termination Date an aggregate amount not exceeding its Pro Rata Share of the aggregate amount of the Revolving Loan Commitments to be used for the purposes identified in subsection 2.5A. The amount of each Lender’s Revolving Loan Commitment is set forth opposite its name on Schedule 2.1 annexed hereto and the aggregate amount of the Revolving Loan Commitments is Sixty-Five Million and no/100 Dollars ($65,000,000.00); provided that the Revolving Loan Commitments of Lenders shall be adjusted to give effect to any assignments of the Revolving Loan Commitments pursuant to subsection 10.1B; and provided , further that the amount of the Revolving Loan Commitments shall be reduced from time to time by the amount of any reductions thereto made pursuant to subsection 2.4. Each Revolving Lender’s Revolving Loan Commitment shall expire on the Revolving Loan Commitment Termination Date, and all Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the Revolving Loan Commitments shall be paid in full no later than that date. Subject to reduction of the Revolving Loan Commitments pursuant to subsection 2.4, amounts borrowed under this subsection 2.1A(ii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date.

Anything contained in this Agreement to the contrary notwithstanding, the Revolving Loans and the Revolving Loan Commitments shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect.

F. Schedule 2.1 to the Credit Agreement is hereby amended by deleting the present text thereof and substituting in its place the new Schedule 2.1 attached to this Amendment.

G. Subsection 2.2A of the Credit Agreement is hereby amended by deleting the present text of the third paragraph thereof (including the table set forth therein) and substituting in its place the following:

With respect to Term Loans and Revolving Loans, the “ Applicable Margin ” for each Base Rate Loan and LIBOR Rate Loan shall be the percentage set forth below for that type of Loan based upon the Consolidated Total Debt Ratio as set forth and adjusted below:

 

 

4

H. Subsection 2.3A of the Credit Agreement is hereby amended by deleting the present text thereof in its entirety and substituting in its place the following:

A. Commitment Fee. Borrower agrees to pay to Administrative Agent, for distribution to each Revolving Lender in proportion to that Lender’s Pro Rata Share, commitment fees for the period from and including the Effective Date to and excluding the Revolving Loan Commitment Termination Date equal to the average of the daily excess of the Revolving Loan Commitments over the Total Utilization of Revolving Loan Commitments, multiplied by 0.500% per annum, such commitment fees to be calculated on the basis of a 360-day year and the actual number of days elapsed and to be payable quarterly in arrears on March 31, June 30, September 30 and December 31 of each year, commencing on the first such date to occur after the Effective Date, and on the Revolving Loan Commitment Termination Date.

I. Subsection 2.4(A)(ii) of the Credit Agreement is hereby amended by deleting the present text thereof in its entirety and substituting in its place the following:

(ii) Scheduled Reductions of Revolving Loan Commitments . The Revolving Loan Commitments shall be permanently reduced on the dates and in the amounts set forth below:

 

; provided that the scheduled reductions of the Revolving Loan Commitments set forth above shall be reduced in connection with any voluntary or mandatory reductions of the Revolving Loan Commitments in accordance with subsection 2.4B(iv); and provided , further , that the Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans shall be paid in full no later than the Revolving Loan Commitment Termination Date, and the final installment payable by Borrower in respect of the Revolving Loans on such date shall be in an amount, if such amount is different from that specified above, sufficient to repay all amounts owing by Borrower under this Agreement with respect to the Revolving Loans.

 

5

J. Subsection 2.4(B)(iii)(a)(1) of the Credit Agreement is hereby amended by deleting the present text thereof in its entirety and substituting in its place the following:

(1) Upon the receipt by any Credit Party of any Net Cash Proceeds from any Asset Sale, to the extent that the aggregate Net Cash Proceeds from all Asset Sales received in that Fiscal Year exceed One Hundred Thousand Dollars ($100,000), 100% of such Net Cash Proceeds in excess of such amount shall be applied immediately to prepay the Loans and/or to permanently reduce the Revolving Loan Commitments. Any such mandatory prepayments or reductions shall be applied as specified in subsection 2.4B(iv)(b)(1).

K. Subsection 2.4(B)(iii)(a)(3) of the Credit Agreement is hereby amended by deleting the present text thereof in its entirety and substituting in its place “Intentionally Omitted.”

L. Subsection 2.4(B)(iii)(b) of the Credit Agreement is hereby amended by deleting the present text thereof in its entirety and substituting in its place the following:

(b) Prepayments and Reductions Due to Issuance of Debt or Equity .

(1) On the date of receipt by any Obligor of cash proceeds (net of underwriting discounts and commissions and other reasonable costs associated therewith), from one or more issuances of any debt Securities of such Obligor (excluding issuances permitted by subsections 7.1(ii), (iii), (iv), (v) and (vii) and all Obligations) (“ Net Debt Securities Proceeds ”), Borrower shall prepay the Loans and/or the Revolving Loan Commitments shall be permanently reduced by 100% of such Net Debt Securities Proceeds. Any such mandatory prepayments or reductions shall be applied as specified in subsection 2.4B(iv)(b)(2).

(2) On the date of receipt by any Obligor of cash proceeds (net of underwriting discounts and commissions and other reasonable costs associated therewith), from one or more issuances of any equity Securities of such Obligor (“ Net Equity Securities Proceeds ”), Borrower shall use 100% of such Net Equity Securities Proceeds to prepay the Loans and/or the Revolving Loan Commitments shall be permanently reduced in an amount sufficient to achieve a Consolidated Total Debt Ratio at such time of 5.00:1.00, and thereafter then shall prepay the Loans by 50% of such Net Equity Securities Proceeds. Any such mandatory prepayments or reductions shall be applied as specified in subsection 2.4B(iv)(b)(2).

M. Subsection 2.4(B)(iii)(c) of the Credit Agreement is hereby amended by deleting the present text thereof in its entirety and substituting in its place the following:

(c) Prepayments and Reductions Due to Insurance Proceeds . Upon the receipt by any Credit Party of any cash payments under any of the insurance policies maintained pursuant to subsection 6.4 net of any costs incurred in collecting such payments (“ Net Insurance Proceeds ”) in excess of Seven Million Five Hundred Thousand Dollars ($7,500,000) in the aggregate, 100% of such Net Cash Proceeds in excess of such amount shall be applied immediately to prepay the Loans and/or to permanently reduce the Revolving Loan Commitments; provided that on the 365th day following receipt of such Net Insurance Proceeds that are equal to or less than Seven Million Five Hundred Thousand Dollars ($7,500,000), an amount equal to any amount of such Net Insurance

 

6

Proceeds which have not been used or committed by such date to pay or reimburse the costs of repairing, restoring or replacing the assets in respect of which such Net Insurance Proceeds payments were received shall then be applied by Borrower on such date to prepay the Loans and/or to permanently reduce the Revolving Loan Commitments. Any such mandatory prepayments or reductions shall be applied as specified in subsection 2.4B(iv)(b)(1).

N. Subsection 2.4(B)(iii)(d) of the Credit Agreement is hereby amended by deleting the present text thereof in its entirety and substituting in its place the following:

(d) Prepayments and Reductions from Consolidated Excess Cash Flow . In the event that there shall be Consolidated Excess Cash Flow for any Fiscal Year, then no later than one hundred twenty (120) days after the end of such Fiscal Year, Borrower shall prepay the Loans and/or the Revolving Loan Commitments shall be permanently reduced in an aggregate amount equal to 50% of such Consolidated Excess Cash Flow. Any such mandatory prepayments shall be applied as specified in subsection 2.4B(iv)(b)(2).

O. Subsection 2.4(B)(iii)(e) of the Credit Agreement is hereby amended by deleting the present text thereof in its entirety and substituting in its place the following:

(e) Calculations of Net Proceeds Amounts; Additional Prepayments and Reductions Based on Subsequent Calculations . Concurrently with any prepayment of the Loans and/or reduction of the Revolving Loan Commitments pursuant to subsections 2.4B(iii)(a)-(d), Borrower shall deliver to Administrative Agent (and, promptly after receipt from Borrower, Administrative Agent shall deliver to Lenders) an Officer’s Certificate demonstrating the calculation of the amount (the “ Net Proceeds Amount ”) of the applicable Net Cash Proceeds, the applicable Net Debt Securities Proceeds (as such term is defined in subsection 2.4B(iii)(b)(1)), the applicable Net Equity Securities Proceeds (as such term is defined in subsection 2.4B(iii)(b)(2)), the applicable Net Insurance Proceeds (as such term is defined in subsection 2.4B(iii)(c) together with a description of the assets which are the subject of such insurance payment), or the applicable Consolidated Excess Cash Flow, as the case may be, that gave rise to such prepayment and/or reduction. In the event that Borrower shall subsequently determine that the actual Net Proceeds Amount was greater than the amount set forth in such Officer’s Certificate (including if any Net Cash Proceeds retained for reinvestment are not so reinvested), Borrower shall promptly make an additional prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments shall be permanently reduced) in an amount equal to the amount of such excess in the manner specified in subsection 2.4B(iv)(b)(1) if such prepayment is made in connection with Net Cash Proceeds or Net Insurance Proceeds and subsection 2.4B(iv)(b)(2) if such prepayment is made in connection with Net Debt Securities Proceeds, Net Equity Securities Proceeds or Consolidated Excess Cash Flow, and Borrower shall concurrently therewith deliver to Administrative Agent an Officer’s Certificate demonstrating the derivation of the additional Net Proceeds Amount resulting in such excess. Anything in this Agreement to the contrary notwithstanding, if on any date of determination any Net Proceeds Amount received by any Credit Party is less than One Million Dollars ($1,000,000), then such Net Proceeds Amount need not be applied as set forth above until the aggregate amount of all Net Proceeds Amounts received and not so applied is equal to at least One Million Dollars ($1,000,000) in the aggregate.

 

7

P. The Credit Agreement is hereby amended by adding the following new subsection 2.4(B)(iii)(g):

(g) Prepayments Due to Failure to Use Proceeds from Revolving Loans . To the extent Borrower and/or its Subsidiaries do not spend the proceeds of Revolving Loans within ten (10) days after the Funding Date for such Revolving Loans, 100% of such unused Revolving Loan proceeds shall be applied to repay the outstanding Revolving Loans (but not reduce the Revolving Loan Commitments) to the full extent thereof.

Q. Subsection 2.11 of the Credit Agreement is hereby amended by deleting the present text thereof in its entirety and substituting in its place the following:

Intentionally Omitted .

R. Subsection 3.1(A)(ii) of the Credit Agreement is hereby amended by deleting the present text thereof in its entirety and substituting in its place the following:

(ii) any Letter of Credit if, after giving effect to such issuance, the Letter of Credit Usage would exceed Seven Million Five Hundred Thousand Dollars ($7,500,000);

S. Subsection 3.2(i) of the Credit Agreement is hereby amended by deleting the present text thereof in its entirety and substituting in its place the following:

(i) (a) a fronting fee, payable directly to the Issuing Lender for its own account, equal to the greater of (X) One Thousand Five Hundred Dollars ($1,500) or (Y) 0.375% per annum of the daily maximum amount available to be drawn under such Letter of Credit and (b) a letter of credit fee, payable to Administrative Agent for the account of Lenders, equal to the product of (X) an annual rate equal to the Applicable Margin for LIBOR Rate Loans in effect at the time of issuance of such Letter of Credit and (Y) daily maximum amount available to be drawn under such Letter of Credit, in each case payable in arrears on and to (but excluding) each March 31, June 30, September 30 and December 31 of each year and computed on the basis of a 360-day year for the actual number of days elapsed;

T. Subsection 4.3B of the Credit Agreement is hereby amended by deleting the present text thereof in its entirety and substituting in its place the following:

B. As of that Funding Date:

(i) The representations and warranties contained herein and in the other Loan Documents shall be true, correct and complete in all material respects on and as of that Funding Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true, correct and complete in all material respects on and as of such earlier date (or previously waived in accordance with this Agreement);

(ii) The ratio of Consolidated Total Debt (after giving effect to such borrowing) to Consolidated Operating Cash Flow for the period of twelve (12) calendar

 

8

months ending on the most recent calendar-month-end occurring at least forty-five (45) days before the Funding Date (determined, for purposes of the definition of “Consolidated Operating Cash Flow,” as if such period were a period of four Fiscal Quarters) shall not exceed the required ratio in effect as of the Funding Date as provided in subsection 7.6C, and Borrower shall have delivered to Administrative Agent and Lenders a Compliance Certificate and such supporting evidence as the Administrative Agent may reasonably require to confirm such determination; and

(iii) No event shall have occurred and be continuing or would result from the consummation of the borrowing contemplated by such Notice of Borrowing that would constitute an Event of Default or a Potential Event of Default.

U. Subsections 7.1(vi) through 7.1(vii) of the Credit Agreement are hereby amended by deleting the present text thereof in their entirety and substituting in their place the following:

(vi) Intentionally omitted;

(vii) Borrower and its Subsidiaries may become and remain liable with respect to other unsecured Indebtedness in an aggregate principal amount not to exceed Two Million Dollars ($2,000,000);

V. Subsection 7.3(viii) of the Credit Agreement is hereby amended by deleting the present text thereof in its entirety and substituting in its place the following:

(viii) So long as no Event of Default or Potential Event of Default shall have occurred and be continuing, or would result therefrom, Borrower and its Subsidiaries may make other Investments; provided that (a) any Cash consideration paid or advanced to make any such Investment, together with all Cash consideration paid or advanced to make all such Investments made pursuant to this clause (viii), shall not exceed Two Million Five Hundred Thousand Dollars ($2,500,000) in the aggregate, and (b) the value of any non-Cash consideration paid or advanced to make any such Investment, together with the value of all non-Cash consideration paid or advanced to make all such Investments described under this clause (viii), shall not exceed Five Million Dollars ($5,000,000) in the aggregate (it being understood that the value of any such non-Cash consideration shall be determined in good faith by Borrower at the time such consideration is paid or advanced to make the applicable Investment);

W. Subsections 7.5(iii) through 7.5(v) of the Credit Agreement are hereby amended by deleting the present text thereof in their entirety and substituting in their place the following:

(iii) as long as no Event of Default or Potential Event of Default has occurred and is continuing or would result therefrom and the Consolidated Total Debt Ratio at such time and immediately prior to and after (on a pro forma basis giving effect to the repurchase) is less than 5.00:1.00 (and Borrower shall have delivered to Administrative Agent a Compliance Certificate to such effect): Borrower may make Cash advances to Holdings or NewHoldco in an amount sufficient to enable Holdings to repurchase and (except for holding the applicable repurchased public Securities as treasury stock) retire or otherwise terminate up to an aggregate of Ten Million Dollars ($10,000,000) of the

 

9

public Securities of Holdings during the term of this Agreement; (iv) as long as no Event of Default or Potential Event of Default has occurred and is continuing or would result therefrom: Borrower may make Cash advances to Holdings or NewHoldco in an amount sufficient to enable Holdings to repurchase and (except for holding the applicable repurchased public Securities as treasury stock) retire or otherwise terminate annually up to an aggregate of Five Hundred Thousand Dollars ($500,000) of the Securities of Holdings held by current or former employees of any Credit Party; and (v) as long as no Event of Default or Potential Event of Default has occurred and is continuing or would result therefrom and the Consolidated Total Debt Ratio at such time and immediately prior to and after (on a pro forma basis giving effect to the dividend payment) is less than 5.00:1.00, Borrower may declare and pay Cash dividends to Holdings or NewHoldco for the sole purpose of paying Cash dividends to Holdings’ stockholders, provided that such Cash dividends may not exceed in the aggregate Five Million Dollars ($5,000,000) in any Fiscal Year.

X. Subsection 7.6(C) of the Credit Agreement is hereby amended by deleting the present text thereof in its entirety and substituting in its place the following:

C. Maximum Consolidated Total Debt Ratio . Borrower shall not permit the ratio of (i) Consolidated Total Debt as of the last day of any Fiscal Quarter to (ii) Consolidated Operating Cash Flow for the four consecutive Fiscal Quarter period ending as of the last day of such Fiscal Quarter during any of the periods set forth below to exceed the correlative ratio indicated:

 

Y. Subsections 7.7(v) and 7.7(vi) of the Credit Agreement are hereby amended by deleting the present text thereof in their entirety and substituting in their place the following:

(v) Borrower and its Subsidiaries may make Asset Sales of assets having an aggregate, cumulative fair market value not to exceed Ten Million Dollars ($10,000,000) since the Closing Date; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof and (b) the sole consideration received shall be Cash;

(vi) Borrower and its Subsidiaries may make other Asset Sales; provided that either (I) each of the following conditions is satisfied: (a) the assets subject to such Asset Sales, in the aggregate together with all other assets sold pursuant to Asset Sales of the Borrower and its Subsidiaries since the Closing Date did not generate more than 5% of Consolidated Operating Cash Flow taken as a single accounting period (calculated on a cumulative basis since the Closing Date) and excluding for such purpose Borrower’s corporate overhead to the extent deducted in determining net income, (b) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof and (c) the sole consideration received shall be Cash or (II) Requisite Lenders approve of such Asset Sale;

 

10

Z. Subsection 10.6 of the Credit Agreement is hereby amended by deleting “other than including Incremental Term Lenders or Incremental Revolving Loan Lenders” after the term “Requisite Lenders” in the first proviso.

AA. Exhibits X and X-1 are hereby deleted as exhibits to the Credit Agreement.

3. Representations and Warranties . Borrower represents and warrants to the Administrative Agent and the Lenders as follows:

A. Each of the representations and warranties set forth in the Credit Agreement, as amended, and the other Loan Documents is true and correct on and as of the date hereof as if made on the date hereof, except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date, and each of the agreements and covenants in the Credit Agreement, as amended, and the other Loan Documents is hereby reaffirmed with the same force and effect as if each were separately stated herein and made as of the date hereof.

B. As of the date hereof, no Event of Default or Potential Event of Default has occurred and is continuing (after giving effect to this Amendment).

C. The execution and delivery of this Amendment (i) have been duly authorized by all necessary limited liability company action on the part of Borrower; and (ii) do not result in a breach of or constitute a default under any Contractual Obligation of any Obligor or require any approval of stockholders or members or any approval or consent of any Person under any Contractual Obligation of any Obligor or the consent or approval of any Governmental Authority.

D. This Amendment has been duly executed and delivered by Borrower and is the legally valid and binding obligation of Borrower, enforceable against Borrower in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.

E. The Lenders’ security interests in the Collateral continue to be valid, binding and enforceable First Priority security interests which secure the Obligations under the Loan Documents.

4. Conditions to Effectiveness . This Amendment shall become effective on the date upon which all of the following conditions precedent have been satisfied in full or waived by the Administrative Agent in writing (the “ Effective Date ”):

A. The Administrative Agent (or its counsel) shall have received an original or facsimile counterpart of this Amendment, duly executed and delivered by Borrower, the Administrative Agent and the Lenders.

B. Borrower shall have paid to Administrative Agent, for distribution (as appropriate) to Lenders executing this Amendment, an amendment fee equal to 0.25% of the Commitments of such Lenders under the Credit Agreement.

 

11

C. The Administrative Agent (or its counsel) for Lenders shall have received an originally executed copy of the Holdings Guaranty, in the form of Exhibit A attached hereto, executed by Holdings on the date hereof.

D. After giving effect to the Amendment, no Event of Default or Potential Event of Default shall have occurred and be continuing.

E. Counsel to Administrative Agent shall have received payment in full for all reasonable, out-of-pocket legal fees charged, and all reasonable costs and expenses incurred, by such counsel to the extent invoiced prior to the Effective Time in connection with the transactions contemplated under the Credit Agreement and this Amendment.

5. Ratification of Liability . Each Credit Party and Holdings, as debtor, grantor, pledgor, guarantor, assignor, or in other similar capacity in which such party grants Liens or security interests in its properties or otherwise acts as an accommodation party or guarantor, as the case may be, under the Loan Documents, hereby ratifies and reaffirms all of its payment and performance obligations and obligations to indemnify, contingent or otherwise, under each Loan Document to which such Person is a party, and each such party hereby ratifies and reaffirms its grant of Liens on and security interests in its properties pursuant to such Loan Documents to which it is a party as security for the Obligations under or with respect to the Credit Agreement, and confirms and agrees that such Liens and security interests hereafter secure all of the Obligations under the Loan Documents, including, without limitation, all additional Obligations hereafter arising or incurred pursuant to or in connection with the Credit Agreement, as amended hereby, or any other Loan Documents. Each Credit Party and Holdings further agrees and reaffirms that the Loan Documents to which it is a party now apply to all Obligations as modified hereby (including, without limitation, all additional Obligations hereafter arising or incurred pursuant to or in connection with the Credit Agreement, as amended hereby, or any other Loan Documents). Each such party (i) further acknowledges receipt of a copy of this Amendment, all previous amendments to the Credit Agreement and all other agreements, documents and instruments executed or delivered in connection herewith or therewith, (ii) consents to the terms and conditions of same and (iii) agrees and acknowledges that each of the Loan Documents, as modified hereby and thereby, remains in full force and effect and is hereby ratified and confirmed. Except as expressly provided herein, the execution of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent or any Lender, nor constitute a waiver of any provision of any of the Loan Documents nor constitute a novation of any of the Obligations under the Loan Documents.

6. Miscellaneous Provisions .

A. Except as otherwise expressly provided by this Amendment, all of the terms, conditions and provisions of the Credit Agreement shall remain the same. It is declared and agreed by each of the parties hereto that the Credit Agreement, as amended hereby, and the other Loan Documents, shall continue in full force and effect, and that this Amendment and the Credit Agreement shall be read and construed as one instrument. Neither the execution, delivery nor effectiveness of this Amendment shall operate as a waiver of any present or future Potential Event of Default or Event of Default, whether known or unknown (except for any Potential Event of Default or Event of Default that would occur but for the operation of this Amendment), or of any right, power or remedy of the Administrative Agent or any Lender of any provision contained in the Credit Agreement or any other Loan Document. This Amendment shall be deemed one of the “Loan Documents” under the Credit Agreement.

 

12

B. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.

C. Headings or captions used in this Amendment are for convenience of reference only and shall not define or limit the provisions hereof.

D. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all of which together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

13

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.