EACH BORROWER HEREBY REPRESENTS AND WARRANTS THAT:
(A) SUCH BORROWER IS DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT, AND THIS
AGREEMENT, UPON ITS EXECUTION BY SUCH BORROWER, THE AGENT AND EACH LENDER, WILL
CONSTITUTE SUCH BORROWER'S LEGAL, VALID AND BINDING OBLIGATIONS ENFORCEABLE IN
ACCORDANCE WITH ITS TERMS AGAINST SUCH BORROWER; (B) AFTER GIVING EFFECT TO THIS
AGREEMENT AND THE CONSUMMATION OF THE CCI STOCK SALE, NO DEFAULT OR EVENT OF
DEFAULT EXISTS; (C) NO PRESENT RIGHT OF SETOFF, COUNTERCLAIM, RECOUPMENT CLAIM
OR DEFENSE EXISTS IN SUCH BORROWER'S FAVOR IN RESPECT OF ITS PAYMENT OR
PERFORMANCE OF ANY OBLIGATIONS; AND (D) EXCEPT AS MODIFIED BY THIS AGREEMENT,
ALL TERMS OF THE CREDIT AGREEMENT AND EACH LOAN DOCUMENT SHALL REMAIN IN FULL
FORCE AND EFFECT.
23.
AMENDMENT FEE.
THE BORROWERS AGREE TO PAY TO THE AGENT ON THE
AMENDMENT DATE AN AMENDMENT FEE IN THE AMOUNT OF TWO HUNDRED THOUSAND DOLLARS
($200,000), TO BE SHARED EQUALLY BETWEEN WELLS FARGO AND UPS, WHICH FEE SHALL BE
FULLY EARNED AND NON-REFUNDABLE ON THE AMENDMENT DATE.
THE AGENT AND THE
LENDERS MAY CAUSE SUCH FEE TO BE PAID BY MAKING WORKING CAPITAL FACILITY LOANS
TO THE BORROWERS IN THE AMOUNT THEREOF.
24.
KIBEL GREEN INC.
THE BORROWERS COVENANT AND AGREE TO CONTINUE TO
ENGAGE KIBEL GREEN INC. AS A CONSULTANT ON A BASIS REASONABLY SATISFACTORY TO
THE AGENT BUT TO INCLUDE, IN ANY EVENT, ASSISTING THE BORROWER IN THE
PREPARATION OF PROJECTIONS FOR THE 2007 FISCAL YEAR.
25.
CONDITIONS PRECEDENT.
NOTWITHSTANDING ANY PROVISION HEREIN THE
CONTRARY, THIS AMENDMENT SHALL NOT BECOME EFFECTIVE, AND NO LENDER SHALL HAVE
ANY LIABILITY HEREUNDER, AND NO WAIVER OF ANY DEFAULT OR EVENT OF DEFAULT SET
FORTH HEREIN SHALL BECOME EFFECTIVE, UNLESS AND UNTIL EACH OF THE FOLLOWING
CONDITIONS PRECEDENT IS SATISFIED IN A MANNER AND PURSUANT TO DOCUMENTATION
SATISFACTORY TO WELLS FARGO IN ITS SOLE DISCRETION:
(A)
UPS SHALL HAVE EXECUTED AND DELIVERED ALL DOCUMENTATION DEEMED
NECESSARY OR APPROPRIATE IN ORDER TO (I) CAUSE WELLS FARGO TO BECOME THE "AGENT"
UNDER THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND (II) ASSIGN THE
COMMITMENT OF UPS TO WELLS FARGO, IN EACH CASE SUBJECT ONLY TO THE RECEIPT AND
DISBURSEMENT OF FUNDS IN ACCORDANCE WITH THE FUNDS FLOW AGREEMENT DESCRIBED
BELOW;
(B)
THE BORROWERS SHALL HAVE PAID TO THE AGENT THE AMENDMENT FEE
DESCRIBED ABOVE;
(C)
THE BORROWERS, THE AGENT AND THE LENDERS HAVE EXECUTED THIS
AMENDMENT;
(D)
THE BORROWERS, THE AGENT, UPS AND PURCHASER SHALL HAVE EXECUTED
AND DELIVERED THAT CERTAIN FUNDS FLOW AGREEMENT DATED ON OR ABOUT THE DATE
HEREOF (THE "FUNDS FLOW AGREEMENT");
(E)
THE AGENT SHALL HAVE RECEIVED A TRUE, CORRECT AND COMPLETE COPY OF
THE STOCK PURCHASE AGREEMENT AND ALL RELATED DOCUMENTATION IN CONNECTION WITH
THE CCI STOCK SALE, CERTIFIED AS SUCH BY AN OFFICER OF HOLDINGS, AND THE AGENT
SHALL HAVE RECEIVED EVIDENCE SATISFACTORY TO THE AGENT THAT THE CCI STOCK SALE
HAS BEEN CONSUMMATED ON TERMS AND CONDITIONS SATISFACTORY TO THE AGENT;
9
(F)
THE BORROWERS SHALL HAVE DELIVERED TO WELLS FARGO