OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY
DELETING THE PERIOD AT THE END OF CLAUSE "(J)" THEREOF AND ADDING THE WORD "AND
" AND BY ADDING NEW CLAUSE "(K)" AT THE END THEREOF AS FOLLOWS:
"(k)" Indebtedness of the Co-Borrowers owing to Horowitz under the Horowitz
Documents and to Schorr under the Schorr Documents.
SECTION 1.10.
CO-BORROWERS EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE
COVENANT SET FORTH IN SECTION 7.06 OF THE CREDIT AGREEMENT, LOANS AND
INVESTMENTS AND SECTION 7.15 OF THE CREDIT AGREEMENT, TRANSACTIONS WITH
AFFILIATES, SHALL BE DEEMED TO PROHIBIT LOANS AND/OR ADVANCES TO RICHARD
HOROWITZ, SCHORR AND/OR ANY AFFILIATE OF THE CO-BORROWERS, OTHER THAN ANOTHER
CO-BORROWER.
SECTION 1.11.
SECTION 7.13 OF THE CREDIT AGREEMENT IS HEREBY AMENDED
AND RESTATED IN ITS ENTIRETY TO PROVIDE AS FOLLOWS:
(a) Intentionally Omitted
(b) Intentionally Omitted
(c) Intentionally Omitted
(d) Intentionally Omitted
(e) Intentionally Omitted
(f) Minimum EBITDA.
Achieve less than 85% of such amounts as are identified on
the line item entitled "EBITDA" in the 2010 forecasted consolidating statements
of operations attached hereto as Exhibit W, which shall be tested monthly on a
year to date basis.
(g) Minimum Availability.
Achieve less than 85% of such amounts as are
identified on the line item entitled "Total Availability" in the Forecast 2010
Monthly Consolidated Balance attached hereto as Exhibit X, which shall be tested
monthly on a rolling three month basis."
SECTION 1.12.
THE FOLLOWING SENTENCE SHALL BE ADDED TO THE END OF
SECTION 7.14 OF THE CREDIT AGREEMENT:
8
"Co-Borrowers acknowledge and agree that without Lenders' prior written consent,
Co-Borrowers are prohibited from making any payment to Hy-Tech on account of the
Junior Obligations (as such term is defined in the Hy-Tech Subordination
Agreement)."
SECTION 1.13.
SECTION 7.15 OF THE CREDIT AGREEMENT IS HEREBY AMENDED
AND RESTATED IN ITS ENTIRETY TO PROVIDE AS FOLLOWS:
"Section 7.15. Transactions with Affiliates.
Enter into any transaction,
including, without limitation, the purchase, sale, or exchange of property or
the rendering of any service, with any Affiliate (other than (i) transactions
with a Co-Borrower or a Guarantor, (ii) indemnification and compensation
arrangements with officers and directors in their capacity as an officer or
director, (iii) payment of dividends otherwise permitted by this Agreement and
(iv) transactions evidenced, contemplated or provided for by the Horowitz
Documents (and the Schorr Documents, to the extent Schorr might be deemed to be
an Affiliate)), except in the ordinary course of and pursuant to the reasonable
requirements of the business of such Co-Borrower or of its Subsidiary and upon
fair and reasonable terms no less favorable to the such entity than it would
obtain in a comparable arms-length transaction with a Person not an Affiliate."
SECTION 1.14.
ARTICLE VII OF THE CREDIT AGREEMENT IS HEREBY AMENDED TO
ADD THE FOLLOWING SECTION 7.20 IMMEDIATELY FOLLOWING SECTION 7.19 THEREOF:
"Section 7.20
Salary of Horowitz.
From and after April 1, 2010, pay Horowitz
salary compensation at a rate in excess of $750,000 per year, provided that this
Section shall not be deemed