WHEREAS, the Lenders have agreed to extend credit to the Borrower under the Credit Agreement on the terms and subject to the conditions set forth therein; and
WHEREAS, the Borrower has requested that the Lenders amend certain provisions of the Credit Agreement and the Lenders whose signatures appear below, constituting at least the Required Lenders, are willing to amend the Credit Agreement on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not otherwise defined herein (including in the recital hereto) have the meanings assigned to them in the Credit Agreement.
SECTION 2. Amendment of “Permitted Investments” Definition : Paragraph (f) of the “Permitted Investments” definition in Section 1.01 of the Credit Agreement is hereby amended in its entirety to read as follows (such amendment to be given effect as of December 21, 2005, as if the Credit Agreement as originally executed had contained the amended definition):
“(f) investments in unconsolidated entities that do not constitute subsidiaries of the Borrower; provided that the sum of all such investments shall not exceed $10,000,000 in the aggregate.”
SECTION 3. Amendment of Section 6.08(a) of the Credit Agreement. Section 6.08(a) of the Credit Agreement is hereby amended in its entirety to read as follows:
“The Borrower will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) the Borrower may declare and pay dividends with respect to its capital stock payable solely in additional shares of its common stock, (ii) Subsidiaries may declare and pay dividends ratably with respect to their capital stock, (iii) the Borrower may make Restricted Payments, not exceeding $1,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and (iv) the Borrower may repurchase shares of its common stock (either in the open market or through private transactions) pursuant to the Borrower’s stock buyback program, in an aggregate amount not to exceed $125,000,000 in any fiscal year; provided that at the time of and immediately after giving effect to any such Restricted Payment, (x) the Borrower shall be in Pro Forma Compliance and (y) no Default or Event of Default shall have occurred and be continuing.
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SECTION 4. Representations, Warranties and Agreements. The Borrower, hereby represents and warrants to and agrees with each Lender and the Administrative Agent that:
(a) The representations and warranties set forth in Article III of the Credit Agreement, as amended hereby, are true and correct in all material respects on and as of the Amendment Effective Date (as defined below) and after giving effect to this Amendment, with the same effect as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they were true and correct as of such earlier date.
(b) As of the Amendment Effective Date, after giving effect to this Amendment, no