Loan Availability Period" means the period commencing on the
date that Borrower provides Bank evidence satisfactory to Bank, in its
reasonable discretion, that Borrower has a Tangible Net Worth of not less than
Nine Million Dollars ($9,000,000) for the quarterly period ending June 30, 2010
and terminating on the earlier to occur of (i) the occurrence of an Event of
Default and (ii) December 31, 2010.
9
"Tranche B Term Loan Maturity Date" is the earlier to occur of (i) the
occurrence of an Event of Default and (ii) the last day of the month that is
thirty-five (35) months from the last day of the month following the month in
which the Funding Date of the Tranche B Term Loan occurs.
"Term Loan" or "Term Loans" means the Tranche A Term Loan and the Tranche B Term
Loan.
"Term Loan Maturity Date" means either or both of the Tranche A Term Loan
Maturity Date or the Tranche B Term Loan Maturity Date, as applicable."
15
THE COMPLIANCE CERTIFICATE APPEARING AS
EXHIBIT D TO THE LOAN AGREEMENT IS HEREBY REPLACED WITH THE COMPLIANCE
CERTIFICATE ATTACHED AS EXHIBIT A HERETO.
16
THE LIBOR SUPPLEMENT TO AGREEMENT
APPEARING AS EXHIBIT E TO THE LOAN AGREEMENT IS HEREBY REPLACED WITH THE
PAYMENT/ADVANCE FORM ATTACHED AS EXHIBIT B HERETO.
4.
CONDITIONS PRECEDENT.
BORROWER HEREBY AGREES THAT THE FOLLOWING
DOCUMENTS SHALL BE DELIVERED TO THE BANK PRIOR TO OR CONCURRENTLY WITH THE FIFTH
LOAN MODIFICATION EFFECTIVE DATE, EACH IN FORM AND SUBSTANCE SATISFACTORY TO THE
BANK (COLLECTIVELY, THE "CONDITIONS PRECEDENT"):
A.
COPIES, CERTIFIED BY A DULY AUTHORIZED
OFFICER OF THE BORROWER TO BE TRUE AND COMPLETE AS OF THE DATE HEREOF, OF EACH
OF (I) THE GOVERNING DOCUMENTS OF THE BORROWER AS IN EFFECT ON THE DATE HEREOF,
(II) THE RESOLUTIONS OF THE BORROWER AUTHORIZING THE EXECUTION AND DELIVERY OF
THIS LOAN MODIFICATION AGREEMENT, THE OTHER DOCUMENTS EXECUTED IN CONNECTION
HEREWITH AND THE BORROWER'S PERFORMANCE OF ALL OF THE TRANSACTIONS CONTEMPLATED
HEREBY, AND (III) AN INCUMBENCY CERTIFICATE GIVING THE NAME AND BEARING A
SPECIMEN SIGNATURE OF EACH INDIVIDUAL WHO SHALL BE SO AUTHORIZED;
B.
A CERTIFICATE FROM THE SECRETARY OF STATE
OF THE APPLICABLE STATE OF ORGANIZATION OF A RECENT DATE AS TO THE BORROWER'S
EXISTENCE AND GOOD STANDING, TOGETHER WITH A CERTIFICATE OF FOREIGN
QUALIFICATION FROM EACH APPLICABLE JURISDICTION;
C.
UPDATED PERFECTION CERTIFICATES, DULY
EXECUTED BY THE BORROWER;
D.
AN OPINION FROM BORROWER'S COUNSEL AS TO
AUTHORITY OF THE BORROWER TO EXECUTE AND DELIVER THIS LOAN MODIFICATION
AGREEMENT AND ENFORCEABILITY OF THIS LOAN MODIFICATION AGREEMENT;
E.
UPDATED PROPERTY INSURANCE AND LIABILITY
INSURANCE CERTIFICATES; AND
F.
SUCH OTHER DOCUMENTS AND/OR INSTRUMENTS
AS BANK MAY REQUEST, IN ITS REASONABLE DISCRETION.
5.
FEES.
BORROWER SHALL PAY TO BANK A MODIFICATION FEE IN THE
AMOUNT OF THIRTY SEVEN THOUSAND FIVE HUNDRED DOLLARS ($37,500.00), WHICH FEE
SHALL BE DUE AND PAYABLE AND FULLY EARNED AS OF THE DATE HEREOF.
BORROWER SHALL
ALSO REIMBURSE BANK FOR ALL LEGAL FEES AND EXPENSES INCURRED BY BANK IN
CONNECTION WITH THE EXISTING