the waiver of certain
financial covenants for the fiscal quarter of the Borrower ending June 30, 2010,
(2) to require additional principal payments on the Term Note, and (3) for
certain other purposes.
D.
In connection therewith, the Borrower and
the Lender desire to, among other things, amend the Term Note to extend the
maturity of the Term Note.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual agreements herein contained, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Borrower and the Lender hereby agree as follows:
1.
CAPITALIZED TERMS. CAPITALIZED TERMS USED IN THIS FOURTH
AMENDMENT BUT NOT DEFINED HEREIN HAVE THE MEANINGS ASCRIBED TO THEM IN THE TERM
NOTE.
2.
RATIFICATION OF TERM NOTE; FURTHER ASSURANCES.
THE BORROWER
HEREBY RATIFIES, CONFIRMS, AND REAFFIRMS ALL AND SINGULAR THE TERMS AND
CONDITIONS OF THE TERM NOTE.
THE BORROWER FURTHER ACKNOWLEDGES AND AGREES THAT
(A) EXCEPT AS SPECIFICALLY AMENDED IN THIS FOURTH AMENDMENT, ALL TERMS AND
CONDITIONS OF THE TERM NOTE SHALL REMAIN IN FULL FORCE AND EFFECT AND (B) THE
BORROWER HAS NO OFFSETS OR DEFENSES TO ITS OBLIGATIONS UNDER THE TERM NOTE.
THE
BORROWER SHALL FROM AND AFTER THE DATE OF THE EXECUTION OF THIS FOURTH
AMENDMENT, EXECUTE AND DELIVER TO THE LENDER WHATEVER ADDITIONAL DOCUMENTS,
INSTRUMENTS, AND AGREEMENTS THAT THE LENDER MAY REQUIRE TO GIVE EFFECT TO THE
TERMS AND CONDITIONS OF THIS FOURTH AMENDMENT.
3.
AMENDMENT TO TERM NOTE.
EFFECTIVE AS OF THE DATE OF THE
EXECUTION OF THIS FOURTH AMENDMENT, SECTION 2 OF THE TERM NOTE ENTITLED
"PAYMENTS AND MATURITY" IS HEREBY DELETED IN ITS ENTIRETY AND THE FOLLOWING
INSERTED IN ITS PLACE:
"2.
Payments and Maturity.
The unpaid Principal
Sum, together with interest thereon at the rate or rates provided above, shall
be payable as follows:
a.
interest shall be due and payable quarterly, commencing on the
first day of the first calendar quarter after the date of this Note, and on the
first day of each succeeding calendar quarter.
B.
UNLESS SOONER PAID, THE UNPAID PRINCIPAL SUM, TOGETHER WITH ALL
INTEREST ACCRUED AND UNPAID THEREON, AND ALL OTHER AMOUNTS OWING UNDER THIS NOTE
SHALL BE DUE AND PAYABLE IN FULL ON AUGUST 31, 2010 (THE "MATURITY DATE").
IF
THE LOAN AGREEMENT PROVIDES FOR BORROWER TO MAKE ADDITIONAL PAYMENTS ON ACCOUNT
OF THE PRINCIPAL SUM FROM TIME TO TIME, BORROWER PROMISES TO MAKE THOSE PAYMENTS
AT THE TIME AND IN THE MANNER SPECIFIED IN THE LOAN AGREEMENT.
NOTWITHSTANDING
THE FOREGOING MATURITY DATE AND PROVIDED NO "EVENT OF DEFAULT" (AS HEREINAFTER
DEFINED) HAS OCCURRED, LENDER MAY (BY WRITTEN NOTICE DELIVERED TO BORROWER), AS
DETERMINED IN LENDER'S SOLE AND ABSOLUTE DISCRETION, ELECT TO EXTEND THE
MATURITY DATE UPON SUCH TERMS AND CONDITIONS AS MAY BE
2
ACCEPTABLE TO LENDER, IN LENDER'S SOLE AND ABSOLUTE DISCRETION.
BORROWER SHALL,
UPON REQUEST OF LENDER, EXECUTE ALL DOCUMENTS AND TAKE ALL ACTION NECESSARY OR
REQUESTED BY LENDER TO EFFECTUATE OR EVIDENCE SUCH EXTENSION, ALL AT THE SOLE
COST OF BORROWER."
4.
CONFESSION OF