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
