POWER REPRESENTED BY THE ISSUED AND OUTSTANDING CAPITAL STOCK OF THE
BORROWER, (B) OCCUPATION OF A MAJORITY OF THE SEATS (OTHER THAN VACANT SEATS OR
SEATS HELD BY YUCAIPA PURSUANT TO THE STOCKHOLDERS AGREEMENT SUBSTANTIALLY IN
THE FORM ATTACHED AS EXHIBIT C TO THE SECURITIES PURCHASE AGREEMENT DATED AS OF
MARCH 23, 2005 BETWEEN THE BORROWER AND YUCAIPA) ON THE BOARD OF DIRECTORS OF
THE BORROWER BY PERSONS WHO WERE NEITHER (I) NOMINATED BY THE BOARD OF DIRECTORS
OF THE BORROWER NOR (II) NOMINATED BY A MAJORITY OF THE INDEPENDENT DIRECTORS
(AS DEFINED IN SUCH STOCKHOLDERS AGREEMENT) IN ACCORDANCE WITH SUCH STOCKHOLDERS
AGREEMENT, NOR (III) APPOINTED BY DIRECTORS SO NOMINATED OR (C) THE OCCURRENCE
OF ANY CHANGE OF CONTROL EVENT AS DEFINED IN ANY INDENTURE IN RESPECT OF THE
INITIAL SUBORDINATED INDEBTEDNESS REQUIRING THE BORROWER TO PREPAY, REDEEM OR
REPURCHASE (OR MAKE AN OFFER TO PREPAY, REDEEM OR REPURCHASE) ANY PORTION OF
SUCH INITIAL SUBORDINATED INDEBTEDNESS.
B.
BY DELETING THE DEFINITION OF
"CONSOLIDATED EBITDA" IN ITS ENTIRETY AND SUBSTITUTING THE FOLLOWING IN ITS
STEAD:
"CONSOLIDATED EBITDA" MEANS, FOR ANY PERIOD, CONSOLIDATED NET INCOME FOR SUCH
PERIOD, PLUS, WITHOUT DUPLICATION AND TO THE EXTENT DEDUCTED FROM REVENUES IN
DETERMINING CONSOLIDATED NET INCOME, THE SUM OF (A) THE AGGREGATE AMOUNT OF
CONSOLIDATED INTEREST EXPENSE FOR SUCH PERIOD, (B) THE AGGREGATE AMOUNT OF
LETTER OF CREDIT FEES PAID DURING SUCH PERIOD, (C) PROVISIONS FOR TAXES BASED ON
INCOME FOR SUCH PERIOD, (D) ALL AMOUNTS ATTRIBUTABLE TO DEPRECIATION AND
AMORTIZATION FOR
2
SUCH PERIOD, (E) OTHER NON-CASH ITEMS (INCLUDING CHARGES FOR INVENTORY ACCOUNTED
FOR ON A LAST IN, FIRST OUT BASIS) REDUCING CONSOLIDATED NET INCOME FOR SUCH
PERIOD (F) ALL YUCAIPA CHARGES DURING SUCH PERIOD, (G) ALL EXTRAORDINARY CHARGES
DURING SUCH PERIOD, AND (H) ALL STRATEGIC CHARGES DURING SUCH PERIOD, AND MINUS,
WITHOUT DUPLICATION AND TO THE EXTENT INCREASING CONSOLIDATED NET INCOME FOR
SUCH PERIOD, (H) ALL EXTRAORDINARY GAINS DURING SUCH PERIOD, (I) NET GAINS
(HOWSOEVER CLASSIFIED) FROM THE SALE OF REAL PROPERTY ASSETS IN EXCESS OF
$10,000,000 DURING ANY FOUR FISCAL QUARTER PERIOD, AND (J) OTHER NON-CASH ITEMS
(OTHER THAN PENSION INCOME RELATED TO THE BORROWER'S QUALIFIED PENSION PLAN, TO
THE EXTENT SUCH PENSION INCOME CONSTITUTES A NON-CASH ITEM) DURING SUCH PERIOD,
ALL AS DETERMINED ON A CONSOLIDATED BASIS WITH RESPECT TO THE BORROWER AND ITS
CONSOLIDATED SUBSIDIARIES IN ACCORDANCE WITH GAAP.
C.
BY DELETING CLAUSE (VI) OF THE
DEFINITION OF "PERMITTED ACQUISITIONS" AND SUBSTITUTING THE FOLLOWING IN ITS
STEAD:
(VI)
EACH OF THE ADJUSTED PAYMENT CONDITIONS SHALL
HAVE BEEN SATISFIED.
D.
BY DELETING CLAUSE (C) OF THE DEFINITION
OF "PERMITTED INVESTMENTS" AND SUBSTITUTING THE FOLLOWING IN ITS STEAD:
(C)
INVESTMENTS IN COMMERCIAL PAPER MATURING WITHIN 270 DAYS FROM THE DATE OF
ACQUISITION THEREOF AND HAVING, AT SUCH DATE OF ACQUISITION, A RATING OF AT
LEAST A-3 FROM S&P OR AT LEAST P-3 FROM MOODY'S;
E.
BY ADDING THE WORDS "OR INCREASED"
AFTER
THE WORD "REDUCED" IN CLAUSE (A) OF THE DEFINITION OF "REVOLVING
COMMITMENT."
F.
BY DELETING THE DEFINITION OF "TERM