ONE-TIME
ADD-BACK ADJUSTMENT TO EBITDA FOR THE FISCAL QUARTER ENDING APRIL 15, 2006 FOR
SEPARATION AND TRANSITION CHARGES RELATED TO THE TERMINATION OF THE EMPLOYMENT
OF DIRK A. SODERSTROM AND STEPHEN J. RUSSO IN THE AGGREGATE AMOUNT OF $447,917.
FOR THE AVOIDANCE OF DOUBT, THE ADD-BACKS TO EBITDA PERMITTED UNDER THIS
AMENDMENT ARE SOLELY FOR THE PURPOSE OF DETERMINING COMPLIANCE WITH ANNEX G
(FINANCIAL COVENANTS) AND ARE NOT TO BE ADDED BACK FOR THE PURPOSE OF
DETERMINING INTEREST IN ACCORDANCE WITH SECTION 1.5(A)
OF THE CREDIT AGREEMENT.
2.
REPRESENTATIONS AND WARRANTIES OF THE PARENT AND THE BORROWERS.
THE
PARENT AND THE US BORROWER, JOINTLY AND SEVERALLY, AND THE UK BORROWER, ONLY IN
RESPECT OF ITSELF, SEVERALLY, MAKE THE FOLLOWING REPRESENTATIONS AND WARRANTIES
TO EACH LENDER AND EACH AGENT WITH RESPECT TO ALL CREDIT PARTIES:
2.1
POWER AND AUTHORITY.
EACH OF THE CREDIT PARTIES HAS ALL CORPORATE
OR OTHER ORGANIZATIONAL POWER AND AUTHORITY TO ENTER INTO THIS AMENDMENT AND, AS
APPLICABLE, THE CONSENT OF GUARANTORS ATTACHED HERETO (THE "CONSENT"), AND TO
CARRY OUT THE TRANSACTIONS CONTEMPLATED BY, AND TO PERFORM ITS OBLIGATIONS UNDER
OR IN RESPECT OF, THE CREDIT AGREEMENT, AS AMENDED HEREBY.
2.2
DUE AUTHORIZATION, NON-CONTRAVENTION.
THE EXECUTION, DELIVERY AND
PERFORMANCE BY EACH CREDIT PARTY OF THIS AMENDMENT AND THE CONSENT, AS
APPLICABLE, AND THE PERFORMANCE OF THE OBLIGATIONS OF EACH CREDIT PARTY UNDER OR
IN RESPECT OF THE CREDIT AGREEMENT AS AMENDED HEREBY (A) HAVE BEEN DULY
AUTHORIZED BY ALL NECESSARY CORPORATE, LIMITED LIABILITY COMPANY OR PARTNERSHIP
ACTION, (B) DO NOT CONTRAVENE ANY PROVISION OF SUCH PERSON'S CHARTER, BYLAWS OR
PARTNERSHIP OR OPERATING AGREEMENT, AS APPLICABLE, (C) DO NOT VIOLATE ANY LAW OR
REGULATION OR ANY ORDER OR DECREE OF ANY COURT OR GOVERNMENTAL AUTHORITY OF THE
UNITED STATES OR THE UNITED KINGDOM OR, IN EACH CASE, ANY POLITICAL SUBDIVISION
THEREOF, (D) DO NOT CONFLICT WITH OR RESULT IN THE BREACH OR TERMINATION OF,
CONSTITUTE A DEFAULT UNDER OR ACCELERATE OR PERMIT THE ACCELERATION OF ANY
PERFORMANCE REQUIRED BY, ANY INDENTURE, MORTGAGE, DEED OF TRUST, LEASE,
AGREEMENT OR OTHER INSTRUMENT TO WHICH SUCH PERSON IS A PARTY OR BY WHICH SUCH
PERSON OR ANY OF ITS PROPERTY IS BOUND, EXCEPT WHERE ANY SUCH VIOLATIONS,
INDIVIDUALLY OR IN THE AGGREGATE, COULD NOT REASONABLY BE EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT, AND (E) DO NOT RESULT IN THE CREATION OR IMPOSITION OF
ANY LIEN ON ANY OF THE PROPERTY OF SUCH PERSON.
2.3
EXECUTION, DELIVERY AND ENFORCEABILITY.
THIS AMENDMENT AND THE
CONSENT HAVE BEEN DULY EXECUTED AND DELIVERED BY EACH CREDIT PARTY WHICH IS A
PARTY THERETO AND THIS AMENDMENT, THE CONSENT AND THE CREDIT AGREEMENT, AS
AMENDED HEREBY, CONSTITUTE THE LEGAL,
2
valid and binding obligations of such Credit Party, enforceable in accordance
with their terms, except as enforceability may be limited by Insolvency Laws or
similar laws affecting creditors' rights generally or by general equitable
principles.
2.4
NO DEFAULT OR EVENT OF DEFAULT.
NO EVENT HAS OCCURRED AND IS
CONTINUING AFTER GIVING EFFECT TO THIS AMENDMENT OR