Credit Agreement for
the Fiscal Quarter ended December 31, 2005, and (c) the failure of the Borrowers
to limit the Senior Secured Leverage Ratio to 1.25:1.00 or less as required
pursuant to Section 7.16 of the Credit Agreement for the Fiscal Quarter ended
December 31, 2005 (collectively, the "Specified Defaults");
WHEREAS, the Borrowers have requested that Agent and Lenders waive the Specified
Defaults;
WHEREAS, subject to the terms and conditions specified herein, Agent and Lenders
are willing to waive the Specified Defaults.
NOW, THEREFORE, in consideration of the foregoing, the respective agreements,
warranties and covenants contained herein, for $10 and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. ACKNOWLEDGMENTS AND AGREEMENTS
1.1
ACKNOWLEDGMENT OF OBLIGATIONS. EACH OF THE BORROWERS HEREBY
ACKNOWLEDGES, CONFIRMS AND AGREES THAT AS OF THE CLOSE OF BUSINESS ON MARCH 31,
2006, THE BORROWERS ARE INDEBTED TO LENDERS IN RESPECT OF THE REVOLVING LOAN IN
THE AGGREGATE PRINCIPAL AMOUNT OF $29,105,060.30 AND IN RESPECT OF THE AGGREGATE
LETTER OF CREDIT OBLIGATIONS IN THE AMOUNT OF $3,640,000.00. ALL SUCH
OBLIGATIONS, TOGETHER WITH INTEREST ACCRUED AND ACCRUING THEREON, AND FEES,
COSTS, EXPENSES AND OTHER CHARGES NOW OR HEREAFTER PAYABLE BY THE BORROWERS TO
LENDERS, ARE UNCONDITIONALLY OWING BY THE BORROWERS TO LENDERS, WITHOUT OFFSET,
DEFENSE OR COUNTERCLAIM OF ANY KIND, NATURE OR DESCRIPTION WHATSOEVER.
1.2
ACKNOWLEDGMENT OF LIENS. EACH BORROWER HEREBY ACKNOWLEDGES,
CONFIRMS AND AGREES THAT AGENT HAS AND SHALL CONTINUE TO HAVE VALID, ENFORCEABLE
AND PERFECTED FIRST-PRIORITY LIENS UPON AND SECURITY INTERESTS IN THE COLLATERAL
GRANTED TO AGENT FOR THE BENEFIT OF THE LENDERS PURSUANT TO THE LOAN DOCUMENTS
OR OTHERWISE GRANTED TO OR HELD BY AGENT FOR THE BENEFIT OF THE LENDERS.
1.3
BINDING EFFECT OF DOCUMENTS. EACH BORROWER HEREBY ACKNOWLEDGES,
CONFIRMS AND AGREES THAT: (A) EACH OF THE LOAN DOCUMENTS HAS BEEN DULY EXECUTED
AND DELIVERED TO THE AGENT AND THE LENDERS BY EACH BORROWER THAT IS INTENDED TO
BE A PARTY THERETO, AND EACH IS IN FULL FORCE AND EFFECT AS OF THE DATE HEREOF,
(B) THE AGREEMENTS AND OBLIGATIONS OF EACH BORROWER CONTAINED IN SUCH LOAN
DOCUMENTS AND IN THIS AGREEMENT CONSTITUTE THE LEGAL, VALID AND BINDING
OBLIGATIONS OF SUCH BORROWER, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH THEIR
RESPECTIVE TERMS, AND NO BORROWER HAS ANY VALID DEFENSE TO THE ENFORCEMENT OF
SUCH OBLIGATIONS, AND (C) THE AGENT AND THE LENDERS ARE AND SHALL BE ENTITLED TO
THE RIGHTS, REMEDIES AND BENEFITS PROVIDED FOR IN THE LOAN DOCUMENTS AND
APPLICABLE LAW.
1.4
ACKNOWLEDGMENT OF DEFAULTS. EACH BORROWER HEREBY ACKNOWLEDGES AND
AGREES THAT (A) THE SPECIFIED DEFAULTS HAVE OCCURRED AND, PRIOR TO THE
EFFECTIVENESS OF THIS AGREEMENT, ARE CONTINUING AND CONSTITUTE EVENTS OF DEFAULT
WHICH ENTITLE THE AGENT AND THE LENDERS TO EXERCISE THEIR RIGHTS AND REMEDIES
UNDER THE LOAN DOCUMENTS, APPLICABLE LAW OR OTHERWISE, AND
(B) AGENT AND THE LENDERS HAVE THE PRESENTLY EXERCISABLE RIGHT TO CEASE FUNDING
AND DECLARE THE OBLIGATIONS TO BE IMMEDIATELY DUE AND PAYABLE UNDER