5 OF THIS AMENDMENT, SECTION 6.17(A)(III) OF
THE CREDIT AGREEMENT IS HEREBY AMENDED AND RESTATED IN ITS ENTIRETY AS FOLLOWS:
(III)
LEVERAGE RATIO.
A LEVERAGE RATIO, MEASURED ON A QUARTER-END
BASIS, OF NOT MORE THAN THE RATIO SET FORTH IN THE FOLLOWING TABLE FOR THE
APPLICABLE PERIOD SET FORTH OPPOSITE THERETO:
Applicable Ratio
Applicable Period
2.50:1.0
For the 4 fiscal quarters
ending March 31, 2006 and June 30, 2006
2.25:1.0
For the 4 fiscal quarters
ending September 30, 2006 and December 31, 2006
2.00:1.0
For the 4 fiscal quarters
ending each fiscal quarter thereafter
4.
RATIFICATION.
THIS AMENDMENT, SUBJECT TO SATISFACTION OF THE
CONDITIONS PROVIDED BELOW, SHALL CONSTITUTE CONSENTS AND AMENDMENTS TO THE
CREDIT AGREEMENT AND ALL OF THE LOAN DOCUMENTS AS APPROPRIATE TO EXPRESS THE
AGREEMENTS CONTAINED HEREIN.
IN ALL OTHER RESPECTS, THE CREDIT AGREEMENT AND
THE LOAN DOCUMENTS SHALL REMAIN UNCHANGED AND IN FULL FORCE AND EFFECT IN
ACCORDANCE WITH THEIR ORIGINAL TERMS.
5.
CONDITIONS PRECEDENT.
THE EFFECTIVENESS OF THIS AMENDMENT IS
SUBJECT TO THE FOLLOWING CONDITIONS PRECEDENT:
(A)
BORROWERS, ADMINISTRATIVE AGENT AND THE REQUIRED LENDERS SHALL
HAVE EXECUTED AND DELIVERED TO ADMINISTRATIVE AGENT THIS AMENDMENT;
(B)
BORROWERS, ABLECO FINANCE LLC, AS AGENT, AND THE "REQUIRED
LENDERS" PARTY TO THE TERM B CREDIT AGREEMENT SHALL HAVE EXECUTED AND DELIVERED
A CONSENT AND AMENDMENT TO THE TERM B CREDIT AGREEMENT IN FORM AND SUBSTANCE
SATISFACTORY TO ADMINISTRATIVE AGENT; AND
2
(C)
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED THE AMENDMENT FEE PAYABLE
PURSUANT TO SECTION 6 BELOW.
6.
AMENDMENT FEE.
BORROWERS HEREBY AGREE TO PAY TO ADMINISTRATIVE
AGENT ON THE DATE HEREOF, FOR DISTRIBUTION TO THE LENDERS BASED ON THEIR PRO
RATA SHARES, AN AMENDMENT FEE EQUAL TO $50,000.
THE FOREGOING AMENDMENT FEE IS
IN ADDITION TO, AND NOT IN LIEU OF, ALL OTHER FEES CHARGED TO THE BORROWERS
UNDER THE LOAN DOCUMENTS.
7.
RELEASE.
EACH BORROWER HEREBY ABSOLUTELY AND UNCONDITIONALLY
RELEASES AND FOREVER DISCHARGES ADMINISTRATIVE AGENT AND THE LENDERS, AND ANY
AND ALL PARTICIPANTS, PARENT CORPORATIONS, SUBSIDIARY CORPORATIONS, AFFILIATED
CORPORATIONS, INSURERS, INDEMNITORS, SUCCESSORS AND ASSIGNS THEREOF, TOGETHER
WITH ALL OF THE PRESENT AND FORMER DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES OF
ANY OF THE FOREGOING, FROM ANY AND ALL CLAIMS, DEMANDS OR CAUSES OF ACTION OF
ANY KIND, NATURE OR DESCRIPTION, WHETHER ARISING IN LAW OR EQUITY OR UPON
CONTRACT OR TORT OR UNDER ANY STATE OR FEDERAL LAW OR OTHERWISE, WHICH SUCH
BORROWER HAS HAD, NOW HAS OR HAS MADE CLAIM TO HAVE AGAINST ANY SUCH PERSON FOR
OR BY REASON OF ANY ACT, OMISSION, MATTER, CAUSE OR THING WHATSOEVER ARISING
FROM THE BEGINNING OF TIME TO AND INCLUDING THE DATE OF THIS AMENDMENT, WHETHER
SUCH CLAIMS, DEMANDS AND CAUSES OF ACTION ARE MATURED OR UNMATURED OR KNOWN (AND
FOR THE AVOIDANCE OF DOUBT, NOT INCLUDING ANY ACT, OMISSION, MATTER, CAUSE OR
THING WHATSOEVER ARISING AFTER THE DATE OF THIS AMENDMENT) OR UNKNOWN.
8.
MISCELLANEOUS.
(A)
WARRANTIES AND ABSENCE OF DEFAULTS.
IN ORDER TO INDUCE
ADMINISTRATIVE AGENT AND THE REQUIRED LENDERS TO ENTER INTO THIS AMENDMENT, EACH
BORROWER HEREBY