COMPLIANCE WITH EACH TERM, COVENANT, CONDITION, AND
PROVISION OF THE LOAN DOCUMENTS.
3.
WAIVER AND SIXTH AMENDMENT.
IN CONNECTION WITH THE WAIVER
AND SIXTH AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT DATED AUGUST
14, 2008, BETWEEN BORROWER AND LENDER (THE "SIXTH AMENDMENT"), BORROWER WAS
REQUIRED TO RECEIVE AT LEAST $1,000,000 IN CASH EQUITY CONTRIBUTIONS ON OR
BEFORE SEPTEMBER 15, 2008.
FOR THE AVOIDANCE OF DOUBT, LENDER CONFIRMS THAT
BORROWER HAS SATISFIED ITS OBLIGATIONS AS SPECIFIED IN SECTION 3 OF THE SIXTH
AMENDMENT, NOTWITHSTANDING THE SUBSEQUENT SHAREHOLDER APPROVAL BEING OBTAINED BY
BORROWER WITH RESPECT TO SUCH CASH EQUITY CONTRIBUTIONS.
4.
CONDITIONS.
THIS AMENDMENT SHALL BE EFFECTIVE AS OF THE
DATE FIRST SET FORTH ABOVE ONCE EACH OF THE FOLLOWING HAVE BEEN DELIVERED TO
LENDER:
(I)
THIS AMENDMENT EXECUTED BY BORROWER AND LENDER;
(II)
PAYMENT BY BORROWER TO LENDER OF A $5,000
AMENDMENT/WAIVER FEE, WHICH FEE SHALL BE FULL-EARNED AND NON-REFUNDABLE WHEN
PAID;
(III)
PAYMENT BY BORROWER TO PORTER & HEDGES, L.L.P.,
COUNSEL TO LENDER, OF OUTSTANDING LEGAL FEES OF $6,532.50 (INVOICE NO. 342586);
AND
(IV)
SUCH OTHER DOCUMENTS AS LENDER MAY REASONABLY
REQUEST.
5.
REPRESENTATIONS AND WARRANTIES.
BORROWER REPRESENTS AND
WARRANTS TO LENDER THAT (A) IT POSSESSES ALL REQUISITE POWER AND AUTHORITY TO
EXECUTE, DELIVER AND COMPLY WITH THE TERMS OF THIS AMENDMENT, (B) THIS AMENDMENT
HAS BEEN DULY AUTHORIZED AND APPROVED BY ALL REQUISITE CORPORATE ACTION ON THE
PART OF BORROWER, (C) NO OTHER CONSENT OF ANY PERSON, GOVERNMENTAL AUTHORITY, OR
ENTITY (OTHER THAN LENDER) IS REQUIRED FOR THIS AMENDMENT TO BE EFFECTIVE, (D)
THE EXECUTION AND DELIVERY OF THIS AMENDMENT DOES NOT VIOLATE ITS ORGANIZATIONAL
DOCUMENTS, (E) THE REPRESENTATIONS AND WARRANTIES IN EACH LOAN DOCUMENT TO WHICH
IT IS A PARTY ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE
DATE OF THIS AMENDMENT AS THOUGH MADE ON THE DATE OF THIS AMENDMENT (EXCEPT TO
THE EXTENT THAT SUCH REPRESENTATIONS AND WARRANTIES SPEAK TO A SPECIFIC DATE OR
AS MODIFIED BY THIS AMENDMENT), (F) EXCEPT FOR THE EXISTING DEFAULTS, IT IS IN
FULL COMPLIANCE WITH ALL COVENANTS AND AGREEMENTS CONTAINED IN EACH LOAN
DOCUMENT TO WHICH IT IS A PARTY, AND (G) NO EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING OTHER THAN THE EXISTING DEFAULTS.
THE REPRESENTATIONS AND WARRANTIES
MADE IN THIS AMENDMENT SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS
AMENDMENT.
NO INVESTIGATION BY LENDER IS REQUIRED FOR LENDER TO RELY ON THE
REPRESENTATIONS AND WARRANTIES IN THIS AMENDMENT.
2
6.
SCOPE OF AMENDMENT; REAFFIRMATION; RELEASE.
ALL REFERENCES
TO THE LOAN AGREEMENT SHALL REFER TO THE LOAN AGREEMENT AS AMENDED BY THIS
AMENDMENT.
EXCEPT AS AFFECTED BY THIS AMENDMENT, THE LOAN DOCUMENTS ARE
UNCHANGED AND CONTINUE IN FULL FORCE AND EFFECT.
HOWEVER, IN THE EVENT OF ANY
INCONSISTENCY BETWEEN THE TERMS OF THE LOAN AGREEMENT (AS AMENDED BY THIS
AMENDMENT) AND ANY OTHER LOAN DOCUMENT, THE TERMS OF THE LOAN AGREEMENT SHALL
CONTROL AND SUCH OTHER DOCUMENT SHALL BE DEEMED TO BE AMENDED TO CONFORM TO THE
TERMS OF THE LOAN