THE NOTE AS OF THE DATE HEREOF IS
$10,000,000.00; (B) THAT INTEREST ON THE UNPAID PRINCIPAL BALANCE OF THE NOTE
HAS BEEN PAID THROUGH DECEMBER 1, 2009 AND (C) THAT THE UNPAID PRINCIPAL BALANCE
OF THE NOTE, TOGETHER WITH ACCRUED AND UNPAID INTEREST THEREON, IS DUE AND OWING
SUBJECT TO THE TERMS OF REPAYMENT HEREINAFTER SET FORTH, WITHOUT DEFENSE OR
OFFSET.
3.
SECTION 1 (INTEREST) OF THE NOTE IS HEREBY AMENDED AND
RESTATED IN ITS ENTIRETY AS FOLLOWS:
"1.
Interest.
Commencing as of December 2, 2009 and continuing until repayment in full of all
sums due hereunder, the unpaid Principal Sum shall bear interest at the
fluctuating rate based on an independent index which is the average of interbank
offered rates for one-month dollar deposits in the London Market as reported in
The Wall Street Journal (the "Index") plus 500 basis points per annum (the
"LIBOR Rate") which rate shall be adjusted for any reserve requirements imposed
upon the Lender from time to time.
The LIBOR Rate does not necessarily
represent the lowest rate of interest charged by the Lender to borrowers.
If
the Index becomes unavailable during the term of this Note, the Lender may
designate a substitute index after giving notice to the Borrower.
The LIBOR
Rate will be adjusted on the first day of each month, based on the value of the
Index as published in The Wall Street Journal as of the first business day of
each month.
All interest payable under the terms of this Note shall be
calculated on the basis of a 365-day year.
The LIBOR Rate shall be in effect
for a period of the number of days indicated (each a "LIBOR Period"), in any
case extended to the next succeeding Business Day (as defined in the Loan and
Security Agreement of even date herewith) when necessary, beginning on the date
hereof or the expiration date of the then-current LIBOR Period."
4.
SECTION 2 (PAYMENTS AND MATURITY) OF THE NOTE IS HEREBY
AMENDED AND RESTATED IN ITS ENTIRETY AS FOLLOWS:
"2.
Payments and Maturity.
The unpaid Principal Sum, together with interest thereon at the rate provided
above, shall be payable as follows:
(a)
Interest only commencing on October 1, 2007 and continuing on the
same day of each and every month thereafter, to and including December 1, 2010;
(b)
Unless sooner paid, the unpaid Principal Sum, together with interest
accrued and unpaid thereon, shall be due and payable in full on December 2,
2010."
5.
BORROWER HEREBY ISSUES, RATIFIES AND CONFIRMS THE
REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED IN THE NOTE, AS AMENDED
HEREBY.
BORROWER AGREES THAT THIS AGREEMENT IS NOT INTENDED TO AND SHALL NOT
CAUSE A NOVATION WITH RESPECT TO LOAN B ANY OR ALL OF THE OBLIGATIONS OF
BORROWER UNDER THE FINANCING DOCUMENTS.
EXCEPT AS EXPRESSLY MODIFIED HEREIN,
THE TERMS, PROVISIONS AND COVENANTS OF THE NOTE ARE IN ALL OTHER RESPECTS HEREBY
RATIFIED AND CONFIRMED AND REMAIN IN FULL FORCE AND EFFECT.
6.
THE BORROWER ACKNOWLEDGES AND WARRANTS THAT