31, 2010; (B) Five
Million Dollars ($5,000,000) for the quarter ending June 30, 2010; and (C) Two
Million Dollars ($2,000,000) for the quarter ending September 30, 2010; (iv) not
less than Two Million Dollars ($2,000,000) for the quarter ending December 31,
2010; and (v) losses not greater than Five Hundred Thousand Dollars ($500,000)
for the quarter ending March 31, 2011."
3
THE LOAN AGREEMENT SHALL BE AMENDED
BY DELETING THE FOLLOWING DEFINITION APPEARING IN SECTION 13.1THEREOF:
"Revolving Line Maturity Date" is November 30, 2010.
and inserting in lieu thereof the following:
"Revolving Line Maturity Date" is April 1, 2011."
4
THE COMPLIANCE CERTIFICATE APPEARING
AS EXHIBIT B TO THE LOAN AGREEMENT IS HEREBY REPLACED WITH THE COMPLIANCE
CERTIFICATE ATTACHED AS EXHIBIT A HERETO.
4.
FEES.
IN ADDITION TO AND SUPPLEMENTAL OF ANY FEES THAT ARE DUE
OR THAT MAY BECOME DUE AND PAYABLE BY BORROWER TO BANK PURSUANT TO SECTION 2.4
OF THE LOAN AGREEMENT, BORROWER SHALL PAY TO BANK A NON-REFUNDABLE MODIFICATION
FEE EQUAL TO TWENTY FIVE THOUSAND DOLLARS ($25,000), WHICH FEE SHALL BE DEEMED
FULLY EARNED AS OF THE DATE HEREOF AND SHALL BE PAYABLE AS FOLLOWS: (I) TEN
THOUSAND DOLLARS ($10,000) SHALL BE PAYABLE ON OR BEFORE THE DATE HEREOF; AND
(II) FIFTEEN THOUSAND DOLLARS ($15,000) SHALL BE PAYABLE ON THE EARLIER TO OCCUR
OF (X) AN EVENT OF DEFAULT AND (Y) FEBRUARY 1, 2010.
BORROWER SHALL ALSO
REIMBURSE BANK FOR ALL LEGAL FEES AND EXPENSES INCURRED IN CONNECTION WITH THIS
AMENDMENT TO THE EXISTING LOAN DOCUMENTS.
5.
WAIVER OF LANDLORD CONSENTS.
IN CONNECTION WITH THIS LOAN
MODIFICATION AGREEMENT, THE BANK HAS AGREED TO WAIVE DELIVERY OF OUTSTANDING
LANDLORD CONSENT AGREEMENTS FORMERLY DELIVERABLE AS A POST-CLOSING ITEM IN
CONNECTION WITH THE EXECUTION OF THE EXISTING LOAN DOCUMENTS.
6.
RATIFICATION OF NEGATIVE PLEDGE.
BORROWER HEREBY RATIFIES,
CONFIRMS AND REAFFIRMS, ALL AND SINGULAR, THE TERMS AND CONDITIONS OF A CERTAIN
NEGATIVE PLEDGE ARRANGEMENT WITH RESPECT TO BORROWER'S INTELLECTUAL PROPERTY,
BETWEEN BORROWER AND BANK, AND BORROWER ACKNOWLEDGES, CONFIRMS AND AGREES THAT
SAID NEGATIVE PLEDGE ARRANGEMENT REMAINS IN FULL FORCE AND EFFECT.
7.
ADDITIONAL COVENANTS: RATIFICATION OF PERFECTION CERTIFICATE.
BORROWER IS NOT A PARTY TO, NOR IS BOUND BY, ANY LICENSE OR OTHER AGREEMENT WITH
RESPECT TO WHICH BORROWER IS THE LICENSEE (A) THAT PROHIBITS OR OTHERWISE
RESTRICTS BORROWER FROM GRANTING A SECURITY INTEREST IN BORROWER'S INTEREST IN
SUCH LICENSE OR AGREEMENT OR ANY OTHER PROPERTY, OR (B) FOR WHICH A DEFAULT
UNDER OR TERMINATION OF COULD INTERFERE WITH THE BANK'S RIGHT TO SELL ANY
COLLATERAL.
BORROWER SHALL PROVIDE WRITTEN NOTICE TO BANK WITHIN TEN (10) DAYS
OF ENTERING OR BECOMING BOUND BY ANY SUCH LICENSE OR AGREEMENT (OTHER THAN
OVER-THE-COUNTER SOFTWARE THAT IS COMMERCIALLY AVAILABLE TO THE PUBLIC).
BORROWER SHALL TAKE SUCH STEPS AS BANK REQUESTS TO OBTAIN THE CONSENT OF, OR
WAIVER BY, ANY PERSON WHOSE CONSENT OR WAIVER IS NECESSARY FOR (X) ALL SUCH
LICENSES OR CONTRACT RIGHTS TO BE DEEMED "COLLATERAL" AND FOR BANK TO HAVE A
SECURITY INTEREST IN IT THAT MIGHT OTHERWISE BE RESTRICTED