December 31, 2005 - 1.20 to 1.0
(j) from January 1, 2006 through and including January 31, 2006 - 1.10 to 1.0;
(k) from February 1, 2006 through and including February 28, 2006 - 1.00 to 1.0;
(l) from March 1, 2006 through and including March 31, 2006 - 1.25 to 1.0;
(m) from April 1, 2006 through and including April 30, 2006 - 1.15 to 1.0;
(n) from May 1, 2006 through and including May 31, 2006 - 1.05 to 1.0; and
(o) from June 1, 2006 and thereafter - 1.25 to 1.0."
4.
FINANCIAL STATEMENT RESTATEMENT/BANK
ACKNOWLEDGEMENT AND MODIFICATION.
BORROWER HAS FURNISHED BANK WITH BORROWER'S
PRESS RELEASE RELATING TO SELECTED PRELIMINARY FINANCIAL RESULTS FOR THE FISCAL
YEAR ENDED JUNE 30, 2006 ISSUED ON SEPTEMBER 6, 2006 (THE "RELEASE
DISCLOSURE").
BANK ACKNOWLEDGES THAT, TO THE EXTENT A RESTATEMENT OF CERTAIN
FINANCIAL STATEMENTS IS NECESSARY WITH RESPECT TO THE MATTERS DISCLOSED IN THE
RELEASE DISCLOSURE, SUCH RESTATEMENT AND THE MATTERS DISCLOSED IN THE RELEASE
DISCLOSURE (TO THE EXTENT SPECIFICALLY DISCLOSED IN THE RELEASE DISCLOSURE)
SHALL NOT BE DEEMED TO CONSTITUTE A BREACH BY BORROWER OF ITS REPRESENTATIONS,
WARRANTIES AND COVENANTS PURSUANT TO SECTION 3.6, 3.7 OR 3.9 OF THE LOAN
AGREEMENT (AND SUCH SECTIONS SHALL BE DEEMED TO BE MODIFIED TO THE EXTENT
NECESSARY TO ACCOUNT FOR ANY REQUIRED RESTATEMENT AND THE MATTERS DISCLOSED IN
THE RELEASE DISCLOSURE) OR OTHERWISE BE DEEMED BY BANK TO CONSTITUTE AN EVENT OF
DEFAULT UNDER THE LOAN AGREEMENT.
5.
FEES.
BORROWER SHALL PAY TO BANK A
MODIFICATION FEE OF $8,611.11, WHICH FEE SHALL BE DUE ON THE DATE HEREOF AND
SHALL BE DEEMED FULLY EARNED AS OF THE DATE HEREOF.
BORROWER SHALL ALSO
REIMBURSE BANK FOR ALL LEGAL FEES AND EXPENSES INCURRED IN CONNECTION WITH THIS
AMENDMENT TO THE EXISTING LOAN DOCUMENTS.
3
6.
RATIFICATION OF NEGATIVE PLEDGE.
BORROWER HEREBY RATIFIES, CONFIRMS AND REAFFIRMS, ALL AND SINGULAR, THE TERMS
AND CONDITIONS OF A CERTAIN NEGATIVE PLEDGE AGREEMENTS EACH DATED AS OF JANUARY
30, 2003 BETWEEN BORROWER AND BANK, AND ACKNOWLEDGES, CONFIRMS AND AGREES THAT
SAID NEGATIVE PLEDGE AGREEMENT
SHALL REMAIN IN FULL FORCE AND EFFECT.
7.
RATIFICATION OF PERFECTION
CERTIFICATES.
BORROWER HEREBY RATIFIES, CONFIRMS AND REAFFIRMS, ALL AND
SINGULAR, THE TERMS AND DISCLOSURES CONTAINED IN CERTAIN PERFECTION CERTIFICATES
EACH DATED AS OF JANUARY 30, 2003, AS AMENDED AND AFFECTED BY SCHEDULE 1 TO THE
FOURTH AMENDMENT AND EXHIBIT A TO THE FOURTH AMENDMENT AND ACKNOWLEDGES,
CONFIRMS AND AGREES THE DISCLOSURES AND INFORMATION THEREIN AND/OR IN SCHEDULE
3.10 TO THE LOAN AGREEMENT HAVE NOT CHANGED AS OF THE DATE HEREOF, EXCEPT AS SET
FORTH ON SCHEDULE 1 ANNEXED HERETO.
8.
CONSISTENT CHANGES.
THE EXISTING LOAN
DOCUMENTS ARE HEREBY AMENDED WHEREVER NECESSARY TO REFLECT THE CHANGES DESCRIBED
ABOVE.
9.
RATIFICATION OF LOAN DOCUMENTS.
BORROWER HEREBY RATIFIES, CONFIRMS, AND REAFFIRMS ALL TERMS AND CONDITIONS OF
ALL SECURITY OR OTHER COLLATERAL GRANTED TO THE BANK, AND CONFIRMS THAT THE
INDEBTEDNESS SECURED THEREBY INCLUDES, WITHOUT LIMITATION, THE OBLIGATIONS.
10.
NO DEFENSES OF BORROWER.
BORROWER HEREBY
ACKNOWLEDGES AND AGREES