Leverage Ratio.
So long as any portion of the Term Loan
remains outstanding, Borrower shall not permit the ratio of (i) the sum of the
aggregate principal amount of Loans outstanding under this Agreement and the
aggregate amount of outstanding Letter of Credit Liability and the aggregate
principal amount of Capital Leases of Borrower and its Subsidiaries on the last
day of each fiscal quarter, beginning September 30, 2006, to (ii) EBITDA for the
twelve-month period ending on such date, to be more than 1.50 to 1.00."
ARTICLE III
CONDITIONS PRECEDENT
3.01
CONDITIONS TO EFFECTIVENESS.
NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, THE EFFECTIVENESS OF THIS AMENDMENT IS SUBJECT TO THE SATISFACTION OF
THE FOLLOWING CONDITIONS PRECEDENT, UNLESS SPECIFICALLY WAIVED IN WRITING BY
AGENT:
(A)
AGENT SHALL HAVE RECEIVED, IN FORM AND SUBSTANCE SATISFACTORY TO
AGENT AND DULY EXECUTED BY EACH PARTY THERETO:
(I)
THIS AMENDMENT, AND
(II)
THIRD AMENDED AND RESTATED REVOLVING NOTE IN THE FORM OF
EXHIBIT A ATTACHED HERETO; AND
5
(III)
TERM NOTE IN THE FORM OF EXHIBIT B ATTACHED HERETO; AND
(IV)
SUCH ADDITIONAL DOCUMENTS, INSTRUMENTS AND INFORMATION AS AGENT OR
ITS LEGAL COUNSEL, PATTON BOGGS LLP, MAY REQUEST; AND
(B)
ALL CORPORATE PROCEEDINGS TAKEN IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT AND THE AGREEMENTS DESCRIBED IN
CLAUSE (A) ABOVE AND ALL DOCUMENTS, INSTRUMENTS AND OTHER LEGAL MATTERS INCIDENT
THERETO SHALL BE SATISFACTORY TO AGENT AND ITS LEGAL COUNSEL, PATTON BOGGS LLP.
ARTICLE IV
NO WAIVER
4.01
NOTHING CONTAINED HEREIN SHALL BE CONSTRUED AS A WAIVER BY AGENT OR
ANY LENDER OF ANY COVENANT OR PROVISION OF THE LOAN AGREEMENT, THE OTHER LOAN
DOCUMENTS, THIS AMENDMENT, OR OF ANY OTHER CONTRACT OR INSTRUMENT BETWEEN
BORROWER, AGENT AND/OR ANY LENDER, AND AGENT'S OR ANY LENDER'S FAILURE AT ANY
TIME OR TIMES HEREAFTER TO REQUIRE STRICT PERFORMANCE BY BORROWER OF ANY
PROVISION THEREOF SHALL NOT WAIVE, AFFECT OR DIMINISH ANY RIGHT OF AGENT AND/OR
ANY LENDER TO THEREAFTER DEMAND STRICT COMPLIANCE THEREWITH.
AGENT AND LENDERS
HEREBY RESERVE ALL RIGHTS GRANTED UNDER THE LOAN AGREEMENT, THE OTHER LOAN
DOCUMENTS, THIS AMENDMENT AND ANY OTHER CONTRACT OR INSTRUMENT BETWEEN BORROWER,
AGENT AND/OR ANY LENDER.
ARTICLE V
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
5.01
RATIFICATIONS.
THE TERMS AND PROVISIONS SET FORTH IN THIS AMENDMENT
SHALL MODIFY AND SUPERSEDE ALL INCONSISTENT TERMS AND PROVISIONS SET FORTH IN
THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND EXCEPT AS EXPRESSLY
MODIFIED AND SUPERSEDED BY THIS AMENDMENT, THE TERMS AND PROVISIONS OF THE LOAN
AGREEMENT AND THE OTHER LOAN DOCUMENTS ARE RATIFIED AND CONFIRMED AND SHALL
CONTINUE IN FULL FORCE AND EFFECT.
BORROWER, AGENT AND LENDERS AGREE THAT THE
LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS AMENDED HEREBY, SHALL CONTINUE
TO BE LEGAL, VALID, BINDING AND ENFORCEABLE IN ACCORDANCE WITH THEIR RESPECTIVE
TERMS.
5.02
REPRESENTATIONS AND WARRANTIES.
BORROWER HEREBY REPRESENTS AND
WARRANTS TO AGENT AND LENDERS THAT (A) THE EXECUTION, DELIVERY AND PERFORMANCE
OF THIS AMENDMENT AND ANY AND ALL OTHER LOAN DOCUMENTS EXECUTED AND/OR DELIVERED
IN CONNECTION HEREWITH HAVE BEEN AUTHORIZED