the
Applicable Percentage for Swingline Loans at any time shall be equal to (i) the
Applicable Percentage at such time for Revolving Loans that are Base Rate Loans
minus (ii) 0.50%):
Revolving Loans and Swingline Loans
Term Loans
Level
Total
Leverage Ratio
Applicable
LIBOR Margin
Applicable Base
Rate Margin
Applicable
LIBOR Margin
Applicable Base
Rate Margin
I
Greater than or equal to 3.75 to 1.0
3.50
%
2.50
%
2.25
%
1.25
%
II
Less than 3.75 to 1.0 but greater than or equal to 3.25 to 1.0
3.25
%
2.25
%
2.25
%
1.25
%
III
Less than 3.25 to 1.0 but greater than or equal to 2.75 to 1.0
3.00
%
2.00
%
2.25
%
1.25
%
IV
Less than 2.75 to 1.0
2.75
%
1.75
%
2.25
%
1.25
%
ON EACH ADJUSTMENT DATE (AS HEREINAFTER DEFINED), THE APPLICABLE PERCENTAGE FOR
ALL LOANS SHALL BE ADJUSTED EFFECTIVE AS OF SUCH ADJUSTMENT DATE (BASED UPON THE
CALCULATION OF THE TOTAL LEVERAGE RATIO AS OF THE LAST DAY OF THE REFERENCE
PERIOD TO WHICH SUCH ADJUSTMENT DATE RELATES) IN ACCORDANCE WITH THE ABOVE
MATRIX; PROVIDED, HOWEVER, THAT, NOTWITHSTANDING THE FOREGOING OR ANYTHING ELSE
HEREIN TO THE CONTRARY, IF AT ANY TIME THE BORROWER SHALL HAVE FAILED TO DELIVER
ANY OF THE FINANCIAL STATEMENTS AS REQUIRED BY SECTIONS 6.1(B) OR 6.1(C), AS THE
CASE MAY BE, OR THE COMPLIANCE CERTIFICATE AS REQUIRED BY SECTION 6.2(A), THEN
AT ALL TIMES FROM AND INCLUDING THE FIFTH (5TH) BUSINESS DAY FOLLOWING THE DATE
ON WHICH SUCH STATEMENTS AND COMPLIANCE CERTIFICATE ARE REQUIRED TO HAVE BEEN
DELIVERED UNTIL THE DATE ON WHICH THE SAME SHALL HAVE BEEN DELIVERED, EACH
APPLICABLE PERCENTAGE SHALL BE DETERMINED BASED ON LEVEL I ABOVE
(NOTWITHSTANDING THE ACTUAL TOTAL LEVERAGE RATIO).
FOR PURPOSES OF THIS
DEFINITION, "ADJUSTMENT DATE" SHALL MEAN, WITH RESPECT TO ANY REFERENCE PERIOD
OF
2
THE BORROWER BEGINNING WITH THE REFERENCE PERIOD ENDING AS OF THE LAST DAY OF
THE FOURTH FISCAL QUARTER OF FISCAL YEAR 2003, THE DAY OF (OR, IF SUCH DAY IS
NOT A BUSINESS DAY, THE NEXT SUCCEEDING BUSINESS DAY) DELIVERY BY THE BORROWER
IN ACCORDANCE WITH SECTION 6.1(B) OR SECTION 6.1(C), AS THE CASE MAY BE, OF
(I) FINANCIAL STATEMENTS AS OF THE END OF AND FOR SUCH REFERENCE PERIOD AND
(II) A DULY COMPLETED COMPLIANCE CERTIFICATE WITH RESPECT TO SUCH REFERENCE
PERIOD."
ARTICLE II
REPRESENTATIONS AND WARRANTIES
TO INDUCE THE ADMINISTRATIVE AGENT AND THE LENDERS TO ENTER INTO THIS FIRST
AMENDMENT, EACH OF THE CREDIT PARTIES REPRESENTS AND WARRANTS TO THE
ADMINISTRATIVE AGENT AND THE LENDERS AS FOLLOWS:
2.1
AUTHORIZATION; ENFORCEABILITY.
EACH CREDIT PARTY HAS TAKEN ALL
NECESSARY CORPORATE OR LIMITED LIABILITY ACTION, AS APPLICABLE, TO EXECUTE,
DELIVER AND PERFORM THIS FIRST AMENDMENT AND ANY OTHER CREDIT DOCUMENTS
CONTEMPLATED HEREBY TO WHICH IT IS A PARTY AND HAS VALIDLY EXECUTED AND
DELIVERED EACH OF SUCH CREDIT DOCUMENTS.
THIS FIRST AMENDMENT AND EACH SUCH
OTHER CREDIT DOCUMENT CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATION OF
EACH CREDIT PARTY THAT IS A