THIRD AMENDMENT TO
TERM LOAN AND SECURITY AGREEMENT AND WAIVER
THIS
THIRD AMENDMENT TO TERM LOAN AND SECURITY AGREEMENT AND WAIVER
(this “ Amendment ”) is made and entered into as
of this 19th day of October 20, 2005, by and among EASY GARDENER
PRODUCTS, LTD., a Texas limited partnership (the “
Borrower ”), EYAS INTERNATIONAL, INC., a Texas
corporation, EG, L.L.C., a Nevada limited liability company, E G
PRODUCT MANAGEMENT, L.L.C., a Texas limited liability company,
WEATHERLY CONSUMER PRODUCTS GROUP, INC., a Delaware corporation,
WEATHERLY CONSUMER PRODUCTS, INC., a Delaware corporation, and NBU
GROUP, LLC, a Texas limited liability company (each a “
Guarantor ” and collectively the “
Guarantors ”; and collectively with the Borrower, the
“ Credit Parties ”), the Lenders (as defined in
the Loan Agreement defined below) and CAPITALSOURCE FINANCE LLC, a
Delaware limited liability company (the “ Agent
”), as agent for itself and on behalf of the
Lenders.
W I T N E S S E T H
:
WHEREAS,
the Borrower, the Guarantors, the Lenders and the Agent are parties
to that certain Term Loan and Security Agreement, dated as of
October 29, 2003 (as amended by that certain First Amendment to
Term Loan and Security Agreement dated as of April 27, 2004, that
certain Second Amendment to Term Loan and Security Agreement and
Waiver dated as of October 12, 2004 and as the same may be further
amended, amended and restated, modified and supplemented, the
“ Loan Agreement ”), pursuant to which the
Lenders extended certain financial accommodations to the Borrower
under the terms and conditions stated therein;
WHEREAS,
the Credit Parties’ Senior Leverage Ratio as of June 30, 2005
was 4.08, which exceeded the maximum allowable Senior Leverage
Ratio of 3.00 for such period as set forth in Annex I of the
Loan Agreement;
WHEREAS,
the Credit Parties’ EBITDA was $9,416,000 as of June 30,
2005, which was less than the minimum allowable EBITDA of
$11,500,000 for such period as set forth in Annex I of the
Loan Agreement;
WHEREAS,
the Borrower has notified Agent that Events of Default have
occurred and are continuing as a result of: (a) Credit
Parties’ failure to comply with the Senior Leverage Ratio as
described above and (b) Credit Parties’ failure to comply
with the minimum EBITDA requirement as described above (such Events
of Default are hereinafter collectively referred to as the “
Specified Events of Default ”) and the Borrower has
requested that the Agent and the Lenders waive the Specified Events
of Default; and
WHEREAS,
the Agent and the Lenders have agreed to the Credit Parties’
requests upon and subject to the terms and conditions hereinafter
set forth;
NOW,
THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is
acknowledged, the parties hereto agree that all capitalized terms
used herein which are not
1
otherwise defined herein shall
have the meanings ascribed thereto in the Loan Agreement, and
further agree as follows:
SECTION 1. Acknowledgement of Obligations
.
(a) Borrower
hereby acknowledges and agrees that based on the Specified Events
of Default (as defined below), it is unconditionally liable to the
Agent and Lenders for the full and immediate payment of all of the
Obligations including, without limitation, those Obligations set
forth on Schedule A attached hereto and incorporated
herein by reference, plus all interest, charges, fees, costs, and
expenses that may arise under the Loan Agreement and other Loan
Documents plus all attorneys’ fees, disbursements and costs
of collection incurred in connection with such Obligations by Agent
and Lenders and that Borrower has no defenses, counterclaims or
set-offs with respect to the full and immediate payment and
performance of any or all Obligations under the Loan Agreement and
the other Loan Documents.
(b) Borrower
acknowledges and agrees that (i) the Specified Events of Default
constitute material defaults under the Loan Agreement and the other
Loan Documents, (ii) any notices that might be given and any grace
periods or cure periods which must expire, prior to Agent or
Lenders exercising any of their respective rights and remedies in
connection with the Loan Agreement or the other Loan Documents,
have been given, complied with and expired and, in any event, are
hereby waived and relinquished by Borrower, and (iii) as a
consequence, Agent and Lenders are now entitled to immediately
exercise all of their respective rights and remedies under the Loan
Agreement and the other Loan Documents, at law or in equity,
including, without limitation, their rights to declare all
Obligations to be immediately due, payable, and performable,
without notice, except that Agent and Lenders have agreed to
waive the Specified Events of Default as provided in this
Amendment.
(c) Borrower
further acknowledges and agrees that as a result of the Specified
Events of Default, Agent and Lenders have no commitments,
obligations or agreements to make loans or advances or other
financial accommodations to Borrower, except that Agent and Lenders
have agreed to waive the Specified Events of Default as provided in
this Amendment and to continue to make loans, advances or other
financial accommodations as provided in this Amendment.
SECTION 2. Amendments to Loan Agreement
.
(a)
Evidence of Loans; Notes . Sections 2.12 (Notes) of
the Loan Agreements is hereby deleted in its entirety and the
following in substituted in lieu thereof:
“
2.12 Evidence of Loans .
|
|
|
|
|
|
(a)
|
Each Lender shall maintain, in
accordance with its usual practice, electronic or written records
evidencing the indebtedness and obligations to such Lender
resulting from each Loan made by such Lender from time to time and
the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.
|
2
|
|
|
|
|
|
(b)
|
Agent shall maintain electronic
or written records (the “ Register ”) in which
it will record (i) the amount of each Loan made hereunder, the
class and type of each Loan made and any applicable interest rate
periods, (ii) the amount of any principal and/or interest due and
payable and/or to become due and payable from Borrower to each
Lender hereunder and (iii) all amounts received by Agent hereunder
from Borrower and each Lender’s share thereof.
|
|
|
|
|
|
|
(c)
|
The entries in the Register shall
be prima facie evidence, absent manifest error, of the existence
and amounts of the obligations and indebtedness therein recorded;
provided , however , that the failure of Agent to
maintain such records or any error therein shall not in any manner
affect the obligations of Borrower to repay the Loans or
Obligations in accordance with their terms.
|
|
|
|
|
|
|
(d)
|
Borrower agrees that upon written
notice by Agent to Borrowers, which written notice may be issued to
Borrower at any time in Agent’s sole discretion, and shall be
accompanied by the return of one or more of the then existing Notes
to Borrowers (“ Notice Regarding Notes ”); all
references to “Term A Loan Notes”, “Term B Loan
Notes”, or “PIK Notes” in the Loan Documents
shall be deemed to refer to any still outstanding Term A Loan
Notes, Term B Loan Notes or PIK Notes, as applicable, and, in the
case of Term A Loans, Term B Loans or PIK obligations that are no
longer evidenced by Term A Loan Notes, Term B Loan Notes or PIK
Notes, as applicable, such Loans shall thereupon be evidenced by
the Register and such references to any such “Term A Loan
Notes”, “Term B Loan Notes” or “PIK
Notes” in the Loan Documents shall be deemed to refer to such
Register or to the applicable facility, as appropriate.
|
|
|
|
|
|
|
(e)
|
Upon Agent’s or any
Lender’s request, and in any event within three (3) Business
Days of any such request, the Borrower shall execute and deliver to
Agent new Notes and/or divide any existing Notes in such smaller
amounts or denominations as Agent or such Lender shall specify in
their respective sole discretion, provided that the aggregate
principal amount of such new Notes does not exceed the aggregate
principal amount of the Loans outstanding when such request is
made.”
|
(b)
Subsection (v) of Section 2.7(c) (Other Mandatory
Prepayments; Optional Prepayments) is hereby deleted in its
entirety and the following is substituted in lieu
thereof:
|
|
|
|
|
|
“(v)
|
If, upon receipt of the
Borrower’s annual audited financial statements, the Agent
determines in its sole discretion that payments from Excess Cash
Flow made in the first three fiscal quarters of such fiscal year
exceed the required payment amount from Excess Cash Flow for
such fiscal year, then the difference shall be held by Agent and
thereafter shall be applied to the then outstanding Loans in the
order specified in Section 2.7(c)(i) ; and”
|
3
(c)
Termination Fee . A new sentence is hereby added to
Section 3.2 (Termination Fee) following the end of last
sentence set forth therein as follows:
|
|
|
|
|
|
|
“Notwithstanding the
foregoing, if the Obligations are indefeasibly repaid in full in
cash on or before the Maturity Date as a result of the consummation
of a Repayment Event, then the Termination Fee shall be forgiven
and shall not be payable by Borrower.”
|
(d)
Section 3.4 (Default Rate of Interest) of the Loan Agreement
is hereby deleted in its entirety and the following is substituted
in lieu thereof:
“3.4
Default Rate of
Interest.
|
|
|
|
|
|
(a)
|
Borrower acknowledges and agrees
that based on the Specified Events of Default (as such term is
defined in the Third Amendment) and notwithstanding the waiver
thereof pursuant to Section 7 of the Third Amendment, the
Applicable Rate of interest in effect with respect to the
Obligations shall be increased by two percent (2.0%) per annum (the
“ Default Rate ”) from and after October
1, 2005 and until such time as the Default Rate with respect to the
Specified Events of Default (as such term is defined in the Third
Amendment) is waived by the Agent and Lenders, in writing in their
sole discretion, and shall be due and payable in cash on the first
day of each calendar month commencing on November 1, 2005 and
continuing until the later of the expiration of the Term and the
full performance and indefeasible payment in full in cash of all
Obligations and the termination of this Agreement.
|
|
|
|
|
|
|
(b)
|
In the event that the Agent and
Lenders waive the Default Rate in accordance with subsection
(a) above, then thereafter upon the occurrence and during the
continuation of a new Event of Default other than the Specified
Events of Default (as such term is defined in the Third Amendment),
the Default Rate shall be charged (such that the Applicable Rate of
interest in effect at such time with respect to the Obligations
shall be increased by two percent (2.0%) per annum) automatically
and without notice from Agent, Lenders or any other Person. In all
such events, and notwithstanding the date on which application of
the Default Rate is communicated to Borrower, the Default Rate
shall accrue from the initial date of such Event of Default and
shall be due and payable in cash upon demand. Neither Agent nor
Lenders shall be required to (A) accelerate the maturity of the
Loans, (B) terminate any Commitment or (C) exercise any other
rights or remedies under the Loan Documents or applicable law in
order to charge interest hereunder at the Default
Rate.”
|
(e)
Section 6.1(a) (Financial Statements, Reports and Other
Information) of the Loan Agreement is hereby deleted in its
entirety and the following is substituted in lieu
thereof:
4
“
6.1 Financial Statements, Reports and other
Information
(a)
Financial Reports . The Credit Parties shall furnish
to Agent (i) as soon as available and in any event within ninety
(90) calendar days after the end of each fiscal year of Borrower,
audited annual consolidated and consolidating financial statements
of the Credit Parties and EGUK, including the notes thereto,
consisting of a consolidated and consolidating balance sheet at the
end of such completed fiscal year and the related consolidated and
consolidating statements of income, retained earnings, cash flows
and owners’ equity for such completed fiscal year, which
financial statements shall be prepared and certified without
qualification by an independent certified public accounting firm
satisfactory to Agent in its Permitted Discretion and accompanied
by related management letters, if available; provided that the
consolidating statements may be unaudited; and provided, further
that internally prepared drafts of the annual consolidated and
consolidating financial statements of the Credit Parties and EGUK
that are described above shall be provided to Agent as soon as
possible and in any event within twenty (20) calendar days after
the end of each fiscal year of Borrower, (ii) as soon as available
and in any event in draft form within twenty (20) calendar days
after the end of each fiscal quarter of the Borrower and in final
form within forty-five (45) calendar days after the end of each
fiscal quarter of the Borrower (other than the last fiscal quarter
of each fiscal year), unaudited consolidated and consolidating
financial statements of the Credit Parties consisting of a balance
sheet and statements of income, retained earnings and cash flows
and owners’ equity as of the end of the immediately preceding
fiscal quarter, (iii) as soon as available and in any event within
twenty (20) calendar days after the end of each calendar month
(other than the last calendar month of a fiscal quarter), unaudited
consolidated and consolidating financial statements of the Credit
Parties, consisting of a balance sheet and statements of income,
retained earnings, cash flows and owners’ equity as of the
end of the immediately preceding calendar month, and (iv) within
twenty (20) calendar days after the end of each calendar month, a
listing of all proposed non-recurring adjustments to EBITDA during
such calendar month. All such financial statements shall be
prepared in accordance with GAAP consistently applied with prior
periods (subject, as to interim statements, to lack of footnotes
and year-end adjustments). With each quarterly and annual financial
statement, the Borrower shall also deliver (x) a Compliance
Certificate of its chief financial officer in the form of
Exhibit A attached hereto (as the same has been
amended and restated by the Third Amendment) and otherwise
satisfactory to Agent stating that (A) such person has reviewed the
relevant terms of the Loan Documents and the condition of the
Credit Parties, (B) no Default or Event of Default has occurred or
is continuing, or, if any of the foregoing has occurred or is
continuing, specifying the nature and status and period of
existence thereof and the steps taken or proposed to be taken with
respect thereto, and (C) the Borrower is in compliance with all
financial covenants in this Agreement attached as Annex I
hereto and (y) a description, in form and substance satisfactory to
the Agent, of each new material agreement or arrangement entered
into with any Affiliate or holder of the Existing Warrant,
including an estimate of cost savings to the Borrower and or
increase to the Borrower’s EBITDA resulting from such
agreement or arrangement, or of any modifications to existing
material agreements or arrangements with any Affiliate or holder of
the Existing Warrant, that occurred during the applicable fiscal
quarter. With each annual financial statement, Borrower shall also
deliver the calculation of the estimated level of distributions by
Borrower to its partners for the payment of all applicable federal,
and state income taxes in connection with Borrower’s income
for such fiscal year. Such certificate shall be accompanied by the
calculations necessary to show compliance with the financial
covenants in a form satisfactory to the Agent in its Permitted
Discretion.”
5
(f)
Subsection (iv) of Section 6.1(c) (Notices) of the
Loan Agreement is hereby deleted in its entirety and the following
is substituted in lieu thereof:
|
|
|
|
|
|
“(iv)
|
any notice received by any Credit
Party from any payor of a claim, suit or other action that such
payor has claims or has filed any claims against any Credit Party
for an amount in excess of $250,000 individually or $500,000 in the
aggregate.”
|
(g)
Subsection (f) of Section 6.1 (Shareholder Reports
and Government Filings) of the Loan Agreement is hereby deleted in
its entirety and the following is substituted in lieu
thereof:
|
|
|
|
|
|
“(f)
|
Shareholder Reports and
Government Filings .
Borrower shall furnish to Agent, concurrently with the sending or
filing thereof, a copy of any proxy statements, financial
statements or reports which the Credit Parties have made available
to their shareholders or other equity owners in their capacity as
such shareholders or equity owners, as a class or any class or
series of shareholders or other equity owners as a class or series
and a copy of any regular, periodic and special reports or
registration statements which the Credit Parties file with the
Securities and Exchange Commission, any stock exchange or any
Governmental Authority, and Credit Parties shall timely file all
reports required to be filed with the Securities and Exchange
Commission, any stock exchange or any Governmental Authority. In
connection with the foregoing, the Agent and Lenders shall not
declare an Event of Default based on Borrower’s failure to
timely file its form 10-K for the fiscal year ended June 30, 2005
with the Securities and Exchange Commission and the American Stock
Exchange, provided that the same is filed with such authorities on
or before October 25, 2005.”
|
(h)
Section 6.7 (Inspection; Periodic Audits) of the Loan
Agreement is hereby deleted in its entirety and the following is
substituted in lieu thereof:
|
|
|
|
|
|
“ 6.7
Inspection; Periodic Audits . Each Credit Party shall
permit the representatives of Agent, at the expense of the Credit
Parties, from time to time as determined by Agent in its sole
discretion and during normal business hours without the requirement
of prior notice, to (a) visit and inspect any of such Credit
Party’s offices or properties or any other place where
Collateral is located to inspect the Collateral and/or to examine
and/or audit all of such Credit Party’s books of account,
records, reports and other papers, (b) make copies and extracts
therefrom, and (c) discuss such Credit Party’s business,
operations, prospects, properties, assets, liabilities, condition
and/or Accounts with its officers and independent public
accountants (and by this provision such officers and accountants
are authorized to discuss the foregoing).”
|
(i)
Subsection (a) of Article VIII (Events of Default) is
hereby deleted in its entirety and the following is substituted in
lieu thereof:
6
|
|
|
|
|
|
“(a)
|
The Credit Parties shall fail to
pay any amount on the Obligations or provided for in any Loan
Document on the date when due (in all cases, whether on any payment
date, at maturity, by reason of acceleration, by notice of
intention to prepay, by required prepayment or
otherwise);”
|
(j)
Subsection (c) of Article VIII (Events of Default) is
hereby deleted in its entirety and the following is substituted in
lieu thereof:
|
|
|
|
|
|
“(c)
|
any Credit Party or other party
thereto, other than Agent or any Lender, shall be in violation,
breach or default of, or shall fail to perform, observe or comply
with any covenant, obligation or agreement set forth in, or any
event of default occurs under, any Loan Document and such
violation, breach, default, event of default or failure shall not
be cured within the applicable period set forth in the applicable
Loan Document; provided that , with respect to the
affirmative covenants set forth in Article VI (other than
Sections 6.3(b) , (f) , (g) and
(h) , 6.8(c) , 6.9 and 6.11 for which
there shall be no cure period and Section 6.2 for which
there shall be a cure period to the extent indicated in
subsection (a) above), there shall be a thirty (30) calendar
day cure period (other than Sections 6.1 and
7.1 for which there shall not be any cure period) commencing
from the earlier of (i) Receipt by such Person of written notice of
such breach, default, violation or failure, and (ii) the time at
which such Person or any authorized officer thereof knew or became
aware, or should reasonably have known or been aware, of such
failure, violation, breach or default.”
|
(k)
Section 13.11 (Release of Collateral) of the Loan Agreement
is hereby deleted in its entirety and the following is substituted
in lieu thereof:
|
|
|
|
|
“ 13.11 Release of
Collateral . Subject to Section 12.3 , promptly
following full performance and satisfaction and indefeasible
payment in full in cash of all Obligations and the termination of
this Agreement and following the Credit Parties’ delivery of
a written release of claims in favor of Agent and Lenders in form
and substance satisfactory to Agent in its sole discretion, the
Liens created hereby shall terminate and Agent and Lenders shall
execute and deliver such documents, at the Credit Parties’
expense, as are necessary to release Lenders’ Liens in the
Collateral and shall return the Collateral to the Credit Parties,
and the Credit Parties agree that they shall have no right to file
any UCC termination statement with respect to any of the UCC
financing statements in favor of Agent and Lenders until all
Obligations are satisfied and performed in full, as provided
herein, including, without limitation, the delivery of the written
release described above; provided , however , that
the parties agree that, notwithstanding any such termination or
release or the execution, delivery or filing of any such documents
or the return of any Collateral, if and to the extent that any such
payment made or received with respect to the Obligations is
subsequently invalidated, determined to be fraudulent or
preferential, set aside, defeased or required to be repaid to a
trustee, debtor in possession, receiver, custodian or any other
Person under any Debtor Relief Law, common law or equitable cause
or any other law, then the Obligations intended to be satisfied by
such payment shall be revived and shall continue as if such payment
had not been received by Agent or any Lender and the Liens created
hereby shall be revived automatically without any action on the
part of any party hereto and shall continue as if such payment
had
|
7
|
|
|
|
|
not been received by Agent or any
Lender. Agent and Lenders shall not be deemed to have made any
representation or warranty with respect to any Collateral so
delivered except that such Collateral is free and clear, on the
date of such delivery, of any and all Liens arising from such
Person’s own acts.”
|
(l) The
definitions of “ Excess Cash Flow ”, “
Notes ”, “ Senior Leverage Ratio ”
and “ Term ” set forth in Appendix A to
the Loan Agreement (Definitions) are hereby deleted in the entirety
and the following are substituted in lieu thereof:
|
|
|
|
|
“ Excess Cash Flow
” shall mean, for any fiscal period, without duplication, an
amount equal to the sum of (a) EBITDA (but excluding the items
comprising subsections (g) and (h) of the definition
of EBITDA) for such period plus the amount of any cash Makewell
Investments made to meet the applicable ECF Threshold for such
period, plus (b) an amount equal to the aggregate net cash
proceeds of the sale, lease, transfer or other disposition of
assets by the Borrower and its Subsidiaries during such period
(such net cash proceeds to be determined only after deducting all
transaction costs, expenses, debt repayments and taxes in
connection with such sale, lease, transfer or other disposition) to
the extent not required to be applied to mandatory prepayments or
payments on the Loans or not otherwise reinvested pursuant to
Section 2.7 hereof, plus (c) the amount of any cash tax refunds
received by Borrower and its Subsidiaries during such period, less
(d) an amount equal to the aggregate amount of all prepayments of
the Loans in excess of required repayments, less (e) an amount
equal to Capital Expenditures of Borrower and its Subsidiaries for
such period, less (f) an amount equal to the sum of all
regularly scheduled payments and optional and/or mandatory payments
of principal on Indebtedness of Borrower and its Subsidiaries
actually made during such period to the extent permitted hereunder,
less (g) cash tax expenses actually paid during such period,
less (h) cash Interest Expense actually paid during such
period, less (i) any Tax Distributions made during such
period.
|
|
|
|
|
|
“ Note ” shall
mean, if any, collectively and each individually, the Term A Loan
Notes, the Term B Loan Notes and the PIK Notes, as the same may be
amended, modified, divided, supplemented and/or restated from time
to time.
|
|
|
|
|
|
“ Senior Leverage
Ratio ” shall mean, for the Credit Parties on a
consolidated basis, at any date of determination, the ratio of (a)
Senior Debt (but excluding for purposes of this definition all
Permitted Transaction Costs that are actually paid by the Borrower
and any installments of the Performance Fee that are accrued by the
Borrower in accordance with the terms and provisions of Section 6
of the Third Amendment) outstanding on such date, to (b) EBITDA for
the twelve (12) months then ending taken as one accounting
period.
|
|
|
|
|
|
“ Term ” shall
mean the period commencing on the Closing Date and ending on
September 30, 2006.
|
(m) The
following new definitions “ Fred Meyer Gain ”,
“ Fred Meyer Loss ”, “ Performance
Fee ” and “ Third Amendment ” are
hereby added to Appendix A to the Loan Agreement
(Definitions) in the appropriate alphabetical order as
follows:
8
|
|
|
|
|
“ Fred Meyer Gain
” shall mean, for any period, the amount of the gain incurred
during such period in connection with the recognition of sales made
to Fred Meyer that were previously treated as deferred income,
provided that such gain shall not exceed $309,000.
|
|
|
|
|
|
“ Fred Meyer Loss
” shall mean, for any period, the amount of the loss incurred
during such period in connection with the reversal of sales made to
Fred Meyer and the treatment thereof as deferred income, provided
that such loss shall not exceed $309,000.
|
|
|
|
|
|
“ LaSalle Third
Amendment ” shall mean, the Waiver and Amendment No. 3 to
Loan and Security Agreement dated as of October 19, 2005 by and
among LaSalle and the Credit Parties without regard to any
amendments thereto.
|
|
|
|
|
|
“ Performance Fee
” shall have the meaning ascribed to such term in Section 6
of the Third Amendment.
|
|
|
|
|
|
“ Permitted Transaction
Costs ” shall mean, the $50,000 amendment fee charged by
LaSalle in connection with the execution and delivery of the
LaSalle Third Amendment, legal fees and expenses incurred by the
Borrower in connection with the negotiation and documentation of
the Third Amendment, the LaSalle Third Amendment and the
consummation of a Repayment Event and any other reasonable expenses
payable by the Borrower related to consultants, investment bankers
or appraisers engaged on behalf of the Borrower, the Agent or the
Agent’s counsel, as the case may be; provided ,
however , that such consultants, investment bankers or
appraisers have been requested by the Agent and Lenders; and
provided , however , further that the fees and
expenses covered by this definition of “Permitted Transaction
Costs” shall not exceed $500,000 in the aggregate.
|
|
|
|
|
|
“ Third Amendment
” shall mean the Third Amendment to Term Loan and Security
Agreement and Waiver dated as of October 19, 2005, by and among
Borrower, Guarantors, Agent and Lenders.
|
(n)
Annex I (Financial Covenants) of the Loan Agreement is
hereby amended by deleting the Senior Leverage Ratio, Minimum
EBTIDA and Fixed Charge Coverage Ratio tables set forth in
subsections A(1) , (2) and (3) thereof in
their entirety and substituting the following in lieu
thereof:
“1. Senior Leverage Ratio
As
measured on each of the following test dates, the Senior Leverage
Ratio shall not exceed the following:
|
|
|
|
|
|
|
|
|
|
Test Date:
|
Maximum Senior Leverage Ratio:
|
|
|
|
|
|
|
|
|
|
|
December 31, 2003
|
3.6:1.00
|
|
|
March 31, 2004
|
3.70:1.00
|
|
|
June 30, 2004; September 30, 2004 and December
31, 2004
|
3.25:1.00
|
|
|
March 31, 2005
|
3.40:1.00
|
|
|
June 30, 2005
|
3.00:1.00
|
|
|
September 30, 2005
|
3.89:1.00
|
|
|
December 31, 2005
|
3.39:1.00
|
|
|
March 31, 2006
|
3.86:1.00
|
|
|
June 30, 2006 and the last day of each fiscal
quarter thereafter
|
2.64:1.00
|
9
|
