REQUIRE."
2.9
SECTION 5.9(F) OF THE LOAN AGREEMENT IS HEREBY DELETED IN ITS
ENTIRETY.
2.10
SECTION 10.3 OF THE LOAN AGREEMENT IS HEREBY AMENDED BY INSERTING
THE FOLLOWING SECTION REFERENCE IN THE APPROPRIATE NUMERICAL ORDER:
"4.28
REFINANCING OF SUBORDINATED DEBT".
2.11
SECTION 13.2 OF THE LOAN AGREEMENT IS HEREBY AMENDED BY DELETING
THE FOLLOWING LANGUAGE FROM THE FIRST SENTENCE THEREOF:
"ANY THEN REMAINING INSTALLMENTS OF THE FACILITY FEE;".
4
2.12
EXHIBIT 5.11(A) OF THE LOAN AGREEMENT IS HEREBY DELETED IN ITS
ENTIRETY AND THE FOLLOWING IS SUBSTITUTED IN ITS STEAD:
"(I)
THE BORROWER SHALL AT ALL TIMES MAINTAIN AVAILABILITY OF NOT LESS
THAN THE GREATER OF (I) $1,500,000, AND (II) TEN PERCENT (10%) OF THE FOLLOWING:
BORROWING BASE LESS AVAILABILITY RESERVES.
(II)
IF, AT ANY TIME, THE BORROWER'S AVAILABILITY IS LESS THAN TWENTY
PERCENT (20%) OF THE BORROWING BASE, THEN THE RATIO OF THE BORROWER'S EBITDA TO
ITS INTEREST EXPENSE, EACH CALCULATED ON A TRAILING TWELVE MONTH BASIS, SHALL BE
EQUAL TO OR GREATER THAN 1.0:1.0.
SUCH RATIO SHALL BE TESTED ON A MONTHLY
BASIS, BEGINNING WITH THE MONTH IMMEDIATELY PRECEDING THE MONTH WHERE
AVAILABILITY FELL BELOW TWENTY PERCENT (20%) OF THE BORROWING BASE, AND
CONTINUING THROUGH AND UNTIL THE MATURITY DATE.
FOR PURPOSES OF SUCH
CALCULATION, "EBITDA" MEANS WITH RESPECT TO ANY FISCAL PERIOD, BORROWER'S AND
ITS SUBSIDIARIES' (FOR THE PORTION OF SUCH FISCAL PERIOD DURING WHICH SUCH
ENTITY IS A SUBSIDIARY OF THE BORROWER) CONSOLIDATED NET INCOME (OR LOSS), MINUS
THE SUM OF THE FOLLOWING: (I) INTEREST INCOME, (II) DECREASES IN THE RECORDED
VALUE OF OUTSTANDING WARRANTS, (III) EXTRAORDINARY ITEMS, AND (IV) GAINS ON SALE
OF PROPERTY AND EQUIPMENT, PLUS THE SUM OF THE FOLLOWING: (I) INTEREST EXPENSE
(INCLUSIVE OF ACCRETION OF DEBT DISCOUNT), (II) NONCASH INCREASES IN THE
RECORDED VALUE OF OUTSTANDING WARRANTS, (III) INCOME TAX EXPENSE, (IV)
DEPRECIATION AND AMORTIZATION, (V) NONCASH IMPAIRMENT OF LONG-LIVED ASSETS,
NONCASH LOSSES ON DISPOSAL OF PROPERTY AND EQUIPMENT, AND (VI) NONCASH
STOCK-BASED COMPENSATION EXPENSE, IN EACH CASE, AS DETERMINED IN ACCORDANCE WITH
GAAP.
FOR PURPOSES OF THIS RATIO, "INTEREST EXPENSE" MEANS WITH RESPECT TO ANY
FISCAL PERIOD, INTEREST EXPENSE AS DETERMINED IN ACCORDANCE WITH GAAP MINUS
NONCASH ACCRETION OF DEBT DISCOUNT INCLUDED IN INTEREST EXPENSE.""
3.
ADDITIONAL ACKNOWLEDGMENTS AND REPRESENTATIONS.
AS AN
INDUCEMENT FOR THE LENDER TO EXECUTE THIS FIFTH AMENDMENT, THE BORROWER HEREBY
REPRESENTS AND WARRANTS THAT AS OF THE DATE HEREOF NO SUSPENSION EVENT HAS
OCCURRED AND IS CONTINUING.
4.
RATIFICATION OF LOAN DOCUMENTS; NO CLAIMS AGAINST LENDER.
EXCEPT AS PROVIDED HEREIN, ALL TERMS AND CONDITIONS OF THE LOAN AGREEMENT AND OF
THE OTHER LOAN DOCUMENTS REMAIN IN FULL FORCE AND EFFECT.
THE BORROWER HEREBY
RATIFIES, CONFIRMS, AND RE-AFFIRMS ALL AND SINGULAR THE TERMS AND CONDITIONS,
INCLUDING EXECUTION AND DELIVERY, OF THE LOAN DOCUMENTS.
THERE IS NO BASIS NOR
SET OF FACTS ON WHICH ANY AMOUNT (OR ANY PORTION THEREOF) OWED BY THE BORROWER
TO THE LENDER COULD BE REDUCED, OFFSET, WAIVED, OR FORGIVEN, BY RESCISSION OR
OTHERWISE; NOR IS THERE ANY CLAIM, COUNTERCLAIM, OFF SET, OR