to Revolving Credit
and Term Loan Agreement dated as of August 9, 2005 among Borrower, Agent and
Lenders.
(h)
The disclosure schedules to the Loan Agreement shall be and hereby
are amended and restated in the entirety by the amended and restated disclosure
schedules attached hereto as Exhibit 3(h) (the "Amended and Restated Disclosure
Schedules").
SECTION 4.
CONDITIONS PRECEDENT.
THIS AMENDMENT SHALL BE EFFECTIVE UPON THE
SATISFACTION OF THE FOLLOWING CONDITIONS PRECEDENT (THE "EFFECTIVE DATE"):
(A) THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN, IN THE LOAN AGREEMENT
AND IN ALL OTHER LOAN DOCUMENTS SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS AS OF THE DATE HEREOF, EXCEPT FOR SUCH REPRESENTATIONS AND WARRANTIES
LIMITED BY THEIR TERMS TO A SPECIFIC DATE, AND ALL COVENANTS AND
4
OTHER AGREEMENTS HEREIN, IN THE LOAN AGREEMENT AND IN ALL OTHER LOAN DOCUMENTS
SHALL BE AND ARE HEREBY CONFIRMED AND RATIFIED IN ALL RESPECTS; (B) NO DEFAULT
OR EVENT OF DEFAULT SHALL BE IN EXISTENCE AS OF THE DATE HEREOF, EXCEPT FOR THE
BORROWER'S FAILURE TO COMPLY WITH THE MINIMUM ADJUSTED EBITDA COVENANT SET FORTH
ON ANNEX I TO THE LOAN AGREEMENT FOR THE QUARTERLY TEST PERIOD ENDING JUNE 30,
2005 (THE "SPECIFIED DEFAULT"); (C) BORROWER SHALL HAVE DELIVERED TO THE AGENT
AN EXECUTED ORIGINAL COPY OF THIS AMENDMENT AND EACH OTHER AGREEMENT, DOCUMENT
OR INSTRUMENT REASONABLY REQUESTED BY THE AGENT IN CONNECTION WITH THIS
AMENDMENT; (D) BORROWER SHALL HAVE DELIVERED TO THE AGENT THE AMENDED AND
RESTATED DISCLOSURE SCHEDULES, WHICH SHALL BE IN FORM AND SUBSTANCE SATISFACTORY
TO THE AGENT IN ITS PERMITTED DISCRETION; (E) BORROWER SHALL HAVE PAID TO AGENT:
(I) THE REDUCED EXIT FEE, AND (II) ALL LEGAL FEES AND EXPENSES INCURRED BY THE
AGENT IN CONNECTION WITH THE DRAFTING, NEGOTIATION AND EXECUTION OF THIS
AMENDMENT, WHICH SHALL NOT EXCEED $10,000.00; (F) BORROWER SHALL HAVE DELIVERED
TO AGENT A CERTIFICATE OF THE CORPORATE SECRETARY OR ASSISTANT SECRETARY OF
BORROWER DATED AS OF THE DATE OF THIS AMENDMENT ON BEHALF OF BORROWER, IN
SUBSTANTIALLY THE FORM OF EXHIBIT 4(F) ATTACHED HERETO; AND (G) ALL PROCEEDINGS
TAKEN IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT AND ALL
DOCUMENTATION AND OTHER LEGAL MATTERS INCIDENT THERETO SHALL BE SATISFACTORY TO
THE AGENT.
SECTION 5.
ADDITIONAL EVENTS OF DEFAULT.
IN ADDITION TO AND WITHOUT IN ANY WAY
LIMITING OR SUBSTITUTING FOR THE EVENTS OF DEFAULT OUTLINED IN THE LOAN
AGREEMENT AND THE OTHER LOAN DOCUMENTS, BORROWER'S FAILURE TO TIMELY AND FULLY
COMPLY WITH ANY COVENANT OR AGREEMENT SET FORTH IN THIS AMENDMENT, WITHOUT ANY
NOTICE AND GRACE AND/OR CURE PERIODS (NOTWITHSTANDING ANY SUCH NOTICE AND GRACE
AND/OR CURE PERIODS IN THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS, ALL OF
WHICH ARE EXPRESSLY WAIVED WITH RESPECT TO PROVISIONS OF THIS AMENDMENT, THE
EIGHTH AMENDMENT AND THE PROVISIONS OF THE LOAN AGREEMENT THAT ARE AMENDED
HEREBY OR THEREBY, OTHER THAN WITH RESPECT TO SECTION 6.1(J) TO THE LOAN
AGREEMENT, AS ADDED BY THE EIGHTH AMENDMENT, FOR WHICH THERE SHALL BE A FIVE
(5) DAY GRACE PERIOD),