AND WARRANTIES.
ALL
OF THE REPRESENTATIONS AND WARRANTIES MADE BY THE BORROWER HEREIN, WHETHER
DIRECTLY OR INCORPORATED BY REFERENCE, SHALL BE TRUE AND CORRECT ON THE DATE
HEREOF, EXCEPT AS PROVIDED IN §3 HEREOF.
(B)
PERFORMANCE; NO EVENT OF DEFAULT.
THE BORROWER SHALL HAVE PERFORMED AND COMPLIED IN ALL MATERIAL RESPECTS WITH ALL
TERMS AND CONDITIONS HEREIN REQUIRED TO BE PERFORMED OR COMPLIED WITH BY IT
PRIOR TO OR AT THE TIME HEREOF, AND, AFTER GIVING EFFECT TO THE TERMS OF THIS
AGREEMENT, THERE SHALL EXIST NO DEFAULT OR EVENT OF DEFAULT OR CONDITION WHICH,
WITH EITHER OR BOTH THE GIVING OF NOTICE OF THE LAPSE OF TIME, WOULD RESULT IN
AN EVENT OF DEFAULT UPON THE EXECUTION AND DELIVERY OF THIS AGREEMENT.
(C)
CORPORATE ACTION.
ALL REQUISITE
CORPORATE ACTION NECESSARY FOR THE VALID EXECUTION, DELIVERY AND PERFORMANCE BY
THE BORROWER AND THE GUARANTORS OF THIS AGREEMENT AND ALL OTHER INSTRUMENTS AND
DOCUMENTS DELIVERED BY THE BORROWER AND THE GUARANTORS IN CONNECTION THEREWITH
SHALL HAVE BEEN DULY AND EFFECTIVELY TAKEN.
(D)
DELIVERY.
THE RELEVANT PARTIES
HERETO SHALL HAVE EXECUTED AND DELIVERED THIS AGREEMENT, THE GRIFFIN SECURITY
AGREEMENT AND THE IMPERIAL SECURITY AGREEMENT, TOGETHER WITH ALL FILINGS,
RECORDINGS, DELIVERIES OF INSTRUMENTS AND OTHER ACTIONS NECESSARY OR DESIRABLE
IN THE OPINION OF THE BANK TO PROTECT AND PRESERVE SUCH SECURITY INTERESTS, ALL
IN FORM AND SUBSTANCE SATISFACTORY TO THE BANK.
(E)
SHAREHOLDER COMFORT LETTER.
THE
BORROWER SHALL HAVE DELIVERED TO THE BANK A COMFORT LETTER EXECUTED BY FREDERICK
M. DANZIGER ("DANZIGER"), IN FORM AND SUBSTANCE SATISFACTORY TO THE BANK
PURSUANT TO WHICH DANZIGER SHALL HAVE (I) ACKNOWLEDGED HIS COMMITMENT TO
EXERCISE THE STOCK OPTION ON OR BEFORE JUNE 1, 2004; AND (II) AGREED TO EXECUTE
AND DELIVER SUCH FURTHER INSTRUMENTS AND AGREEMENTS AND TAKE ALL SUCH ACTIONS AS
MAY BE REASONABLY NECESSARY TO EXERCISE THE STOCK OPTION BY SUCH DATE.
(F)
FEES AND EXPENSES.
THE BORROWER
SHALL HAVE PAID TO THE BANK A WAIVER AND RESTRUCTURING FEE IN THE AMOUNT OF
$100,000, WHICH THE BANK ACKNOWLEDGES RECEIPT THEREOF.
THE BORROWER SHALL ALSO
HAVE PAID TO THE BANK (I) AN AMENDMENT FEE IN THE AMOUNT OF $20,000, AND (II)
ALL FEES AND EXPENSES INCURRED BY THE BANK IN CONNECTION WITH THIS AGREEMENT,
THE CREDIT AGREEMENT OR THE OTHER LOAN DOCUMENTS ON OR PRIOR TO THE DATE HEREOF.
2
§5.
AMENDMENTS TO THE CREDIT AGREEMENT.
§5.1.
Amendments to §1.
The following definitions
appearing in Section 1 of the Credit Agreement are each hereby amended and
restated in their entirety to read as follows:
Applicable Margin.
For each period commencing on an Adjustment Date through the
date immediately preceding the next Adjustment Date (each a "Rate Adjustment
Period"), the Applicable Margin shall be the applicable margin set forth below
with respect to the Debt Service Coverage Ratio, as determined for the Debt
Service Reference Period of the Borrower and its Subsidiaries ending on the
fiscal quarter ended immediately prior to the applicable Rate Adjustment Period.
Level
Debt Service Coverage
Ratio
Base Rate
Loans
LIBOR