(D) OF ANNEX E TO THE CREDIT AGREEMENT
SHALL BE DELETED IN ITS ENTIRETY AND SHALL BE REPLACED IN ITS ENTIRETY BY THE
FOLLOWING:
(i)
a Compliance Certificate showing the calculations used in determining
compliance with the Financial Covenants tested for the Fiscal Quarter and Fiscal
Year ended December 31.
2.
CONSENT.
SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT,
AND NOT WITHSTANDING SECTION 6.13 OF THE CREDIT AGREEMENT, THE AGENT AND THE
UNDERSIGNED LENDERS HEREBY GRANT THEIR CONSENT TO ALLOW BORROWERS TO MAKE ONE OR
MORE STOCK REPURCHASES, IN
5
CONNECTION WITH THE TERMINATION OF EMPLOYEES OF BORROWERS, PROVIDED THAT (I) NO
DEFAULT OR EVENT OF DEFAULT EXISTS AT THE TIME THEREOF OR WOULD RESULT THEREFROM
(AFTER GIVING EFFECT TO THIS AGREEMENT AND THE CONSENT AND AMENDMENTS PROVIDED
FOR HEREIN) AND (II) SUCH REPURCHASES DO NOT VIOLATE THE TERMS OF THE SENIOR
UNSECURED NOTE INDENTURE AS IN EFFECT ON THE CLOSING DATE, PROVIDED, HOWEVER,
THAT BORROWER MAY REPURCHASE UP TO TWO MILLION DOLLARS ($2,000,000) IN FISCAL
YEAR 2007 IRRESPECTIVE OF WHETHER SUCH REPURCHASE IS PERMITTED UNDER THE SENIOR
UNSECURED NOTE INDENTURE SO LONG AS NO DEFAULT OR EVENT OF DEFAULT EXISTS AT THE
TIME HEREOF OR WOULD RESULT THEREFROM.
3.
NO OTHER AMENDMENTS.
EXCEPT FOR THE AMENDMENTS AND CONSENT
EXPRESSLY SET FORTH AND REFERRED TO IN SECTION 1 AND 2 HEREOF, THE CREDIT
AGREEMENT SHALL REMAIN UNCHANGED AND IN FULL FORCE AND EFFECT.
NOTHING IN THIS
AMENDMENT IS INTENDED OR SHALL BE CONSTRUED TO BE A WAIVER OR NOVATION OF ANY
OBLIGATIONS OR ANY PART OF THE CREDIT AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR TO AFFECT, MODIFY OR IMPAIR THE CONTINUITY OR PERFECTION OF THE
AGENT'S LIENS UNDER THE COLLATERAL DOCUMENTS.
4.
REPRESENTATIONS AND WARRANTIES.
TO INDUCE THE LENDERS AND THE
AGENT TO ENTER INTO THIS AMENDMENT, HOLDINGS AND EACH OF THE BORROWERS HEREBY
WARRANTS, REPRESENTS AND COVENANTS TO AND WITH TO THE LENDERS AND THE AGENT
THAT: (A) HOLDINGS AND EACH OF THE BORROWERS HAS THE CORPORATE OR ORGANIZATIONAL
POWER AND AUTHORITY (I) TO ENTER INTO THIS AMENDMENT AND (II) TO DO ALL ACTS AND
THINGS AS ARE REQUIRED OR CONTEMPLATED HEREUNDER TO BE DONE, OBSERVED AND
PERFORMED BY IT; (B) THIS AMENDMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND
DELIVERED BY HOLDINGS AND EACH BORROWER; (C) AFTER GIVING EFFECT TO THIS
AMENDMENT, NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING AS OF
THIS DATE; AND (D) AFTER GIVING EFFECT TO THIS AMENDMENT, ALL OF THE
REPRESENTATIONS AND WARRANTIES MADE BY THE CREDIT PARTIES IN THE CREDIT
AGREEMENT ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE DATE OF
THIS AMENDMENT (EXCEPT TO THE EXTENT THAT ANY SUCH REPRESENTATIONS OR WARRANTIES
EXPRESSLY REFERRED TO A SPECIFIC PRIOR DATE AND EXCEPT FOR CHANGES THEREIN
EXPRESSLY PERMITTED OR EXPRESSLY CONTEMPLATED BY THE CREDIT AGREEMENT OR THE
OTHER LOAN DOCUMENTS).
ANY BREACH IN ANY MATERIAL RESPECT BY HOLDINGS OR ANY
BORROWER OF ANY OF ITS REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED