Amendment No. 8
To
Fifth Amended And
Restated Revolving Loan And Letter Of Credit
Agreement
This Amendment No. 8 (this
“Amendment”) is entered into as of November 3,
2006, among: the two entities included among the Borrower as listed
on Exhibit A attached hereto (individually, and
collectively, jointly and severally, the “Borrower”);
the several entities included among the Guarantors as listed on
Exhibit A attached hereto (each, individually, a
“Guarantor,” and collectively, jointly and severally,
the “Guarantors”); the several entities included among
the Banks as listed on Exhibit A attached hereto (each,
individually, a “Bank” and collectively, but not
jointly, the “Banks”); and Bank of America, N.A.
(“Bank of America”), as agent for the Banks (in such
capacity, the “Agent”).
RECITALS
Reference is made to the following
facts that constitute the background of this Amendment:
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A.
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The parties hereto have entered into that
certain Fifth Amended and Restated Revolving Loan and Letter of
Credit Agreement dated as of November 4, 2005 (as amended
and/or restated from time to time, the “Loan
Agreement”). Capitalized terms used herein and not otherwise
defined herein shall have the same meanings herein as ascribed to
them in the Loan Agreement;
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B.
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The Borrower and the Guarantors have requested
that the Loan Agreement be renewed for a period of 6 months;
and
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C.
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The Banks and the Agent are willing to grant
such request solely upon the terms and conditions set forth in this
Amendment.
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NOW, THEREFORE, in consideration of
the foregoing recitals and of the representations, warranties,
covenants and conditions set forth herein and in the Loan
Agreement, and for other valuable consideration the receipt and
adequacy of which is hereby acknowledged, the parties agree as
follows:
Section 1 .
Amendment .
(a) The definition of
“Maturity Date” in Section 1.1 of the Loan
Agreement is hereby amended by replacing “November 3,
2006” with “May 3, 2007”.
From and after the date hereof, all
references to the term “Maturity Date” in the Credit
Documents shall mean such term as amended hereby.
Section 2 . Commitment
Fee .
(a) In consideration of the
execution and delivery of this Amendment, and the extension and
administration of the credit facilities extended under the Loan
Agreement, the Borrower and Guarantors, jointly and severally,
agree to pay a commitment fee to the Agent on the date hereof, for
the ratable benefit of the Banks, in the aggregate amount of
$262,500 (equal to 0.375% of $140,000,000, which is the Maximum
Amount under the Loan Agreement as of the date hereof pro rated for
a half-year renewal), which shall be deemed fully-earned and
non-refundable simultaneously with the execution and delivery of
this Amendment (the “Commitment Fee”). The Commitment
Fee shall be remitted by the Agent to the Banks (including itself
as a Bank) in accordance with their Commitment Percentages.
(b) Should an additional lender
join in the Loan Agreement as a Bank after the date hereof, or
should one (or more) of the Banks increase its Commitment above the
amount reflected herein (each such joinder or increase, as the case
may be, referred to herein as an “Increase Event”), the
Borrower and Guarantors, jointly and severally, agree to pay an
additional commitment fee to the Agent on the date of each such
Increase Event, for the ratable benefit of such Bank(s), in an
amount equal to 0.375% of the amount by which the Maximum Amount
increases as a result of such Increase Event, which additional
commitment fee shall be deemed fully-earned and non-refundable on
the date of such Increase Event. Such additional Commitment Fees
shall be prorated on the basis of the number of days from the date
of such Increase Event to the Maturity Date.
Section 3 .
Representations and Warranties . The Borrower and
Guarantors, jointly and severally, represent and warrant to the
Banks as of the effective date of this Amendment that, assuming the
due execution and delivery of this Amendment: (a) no Default
or Event of Default is in existence, from and after, or will result
from, the execution and delivery of this Amendment or the
consummation of any transactions contemplated hereby; (b) each
of the representations and warranties of the Borrower and the
Guarantors in the Loan Agreement and the other Credit Documents is
true and correct in all material respects on the effective date of
this Amendment (except for representations and warranties limited
as to time or with respect to a specific event, which
representations and warranties shall continue to be limited to such
time or event) and (c) this Amendment and the Loan Agreement
(as amended by this Amendment) are legal, valid and binding
agreements of the Borrower and the Guarantors and are enforceable
against them in accordance with their terms.
Section 4 .
Ratification . Except as hereby amended, the Loan Agreement,
all other Credit Documents and each provision thereof are hereby
ratified and confirmed in every respect and shall continue in full
force and effect, and this Amendment shall not be, and shall not be
deemed to be, a waiver of any Default or Event of Default or of any
covenant, term or provision of the Loan Agreement or the other
Credit Documents. In furtherance of the foregoing ratification, by
executing this Amendment in the spaces provided below, each of the
Guarantors, on a joint and several basis, hereby absolutely and
unconditionally (a) reaffirms its obligations under the
Guaranty, and (b) absolutely and unconditionally consents to
(i) the execution and delivery by the Borrower of this
Amendment, (ii) the continued implementation and consummation
of arrangements and transactions contemplated by the Loan Agreement
(including, without limitation, as amended hereby) and the other
Credit Documents, and (iii) the performance and observance by
the Borrower and each Guarantor
