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Exhibit
10.5
EXECUTION
AMENDMENT NO. 1 TO
INTERCREDITOR AGREEMENT
THIS AMENDMENT NO. 1 TO
INTERCREDITOR AGREEMENT (“Amendment”) dated as of
January 27, 2005 is by and between Wachovia Bank, National
Association (as successor by merger to Congress Financial
Corporation) in its capacity as agent pursuant to the Working
Capital Loan and Security Agreement for the lenders who are party
from time to time thereto (in such capacity, together with its
successors and assigns in such capacity, the “Working Capital
Agent”) and Ableco Finance LLC, a Delaware limited liability
company, in its capacity as agent pursuant to the Term Loan and
Security Agreement for the lenders who are party from time to time
thereto (in such capacity, together with its successors and assigns
in such capacity, the “Term Loan Agent”).
W I T
N E S S E T H
:
WHEREAS, Working Capital
Agent, Working Capital Lenders, Term Loan Agent and Term Loan
Lenders have previously entered into the Intercreditor Agreement,
dated as of December 18, 2003 (the “Intercreditor
Agreement”); and
WHEREAS, Borrowers have
requested certain amendments to Working Capital Loan Agreements,
including an increase in the principal amount of the Term Loans
outstanding under the Working Capital Loan Agreements;
and
WHEREAS, Working Capital
Agent and Term Loan Agent desire to enter into this Amendment to
confirm that the terms and conditions of the Intercreditor
Agreement, as amended hereby, shall continue to be in full force
and effect;
NOW THEREFORE, in
consideration of the mutual benefits accruing to each of the
parties to the Intercreditor Agreement hereunder and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto do hereby agree as
follows:
SECTION 1.
Interpretation . For purposes of this Amendment, unless
otherwise defined herein, all capitalized terms used herein shall
have the meaning given to them in the Intercreditor
Agreement.
SECTION 2. Additional
Definitions to Intercreditor Agreement . As used herein, the
following terms shall have the meanings given to them below and the
Intercreditor Agreement is hereby amended to include, in addition
and not in limitation, the following definitions:
2.1 “ Amendment No.
4 ” shall mean Amendment No. 4 to Amended and Restated
Loan and Security Agreement, dated January
, 2005, by
and among Borrowers, Working Capital Agent and Working Capital
Lenders.
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SECTION 3. Amendments to
Intercreditor Agreement .
3.1 Maximum W/C Debt
Section 1.12 of the Intercreditor Agreement is hereby deleted and
the following is substituted therefor:
“1.12 “
Maximum W/C Debt” shall mean the sum of (a) the
aggregate outstanding principal amount of revolving loans and
letter of credit accommodations made or issued pursuant to the
Working Capital Loan Agreements up to a maximum amount equal to the
lesser of (i) $20,000,000 or (ii) the amount equal to (A) the
Availability multiplied by (B) 105% plus (b) t
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