Amendment No. 9 To Fifth Amended And Restated Revolving Loan And Letter Of Credit Agreement

Amendment No. 9
To
Fifth Amended And Restated Revolving Loan And Letter Of Credit Agreement

This Amendment No. 9 (this “Amendment”) is entered into as of December 15, 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:

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 . Increase in Maximum Amount . Solely during the Increase Period, the definition of “Maximum Amount” in Section 1.1 of the Loan Agreement is hereby amended to mean One Hundred Sixty-Five Million and 00/100 Dollars ($165,000,000.00). During the Increase Period, all references to the term “Maximum Amount” in the Credit Documents shall mean such term as amended hereby, including, without limitation, as referenced in the sublimits set forth in Section 2.11 of the Loan Agreement. The parties hereto acknowledge and agree that the Commitments of Bank of America, Citicorp and Comerica (the “Participating Banks”) shall increase during the Increase Period and the Commitments of the other Banks shall not change. Accordingly, Section IV of Schedule A to the Loan Agreement, which sets forth the Commitment and Commitment Percentage of each Bank, is hereby amended by deleting it in its entirety and substituting Section IV of Schedule A attached to this Amendment in its stead. Upon expiration of the Increase Period, Section IV of Schedule A to the Loan Agreement as it existed immediately prior to the date of this Amendment shall be in full force and effect.

Section 2 . 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 3 . 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 of all of its respective agreements, covenants, duties and obligations under the Loan Agreement (including, without limitation, as amended hereby) and the other Credit Documents.

Section 4 . Conditions Precedent . The agreements set forth in this Amendment are conditional and this Amendment shall not be effective until (i) receipt by the Agent of a fully-executed counterpart original of this Amendment and (ii) receipt by the Participating Banks of fully-executed original allonges to the Credit Notes in their favor in the form attached hereto as Exhibit B .

Section 5 . Counterparts . This Amendment may be executed and delivered in any number of counterparts with the same effect as if the signatures on each counterpart were upon the same instrument.

Section 6 . Amendment as Credit Document . Each party hereto agrees and acknowledges that this Amendment constitutes a “Credit Document” under and as defined in the Loan Agreement.

SECTION 7 . GOVERNING LAW . THIS AMENDMENT SHALL BE DEEMED TO CONSTITUTE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW Y