OF THE SUBORDINATED DEBT SHALL
HAVE CONSENTED IN WRITING TO THIS AMENDMENT, IN FORM AND SUBSTANCE SATISFACTORY
TO AGENT, AND NONE OF THE PROVISIONS OF THIS AMENDMENT SHALL BE A BREACH OR
EVENT OF DEFAULT UNDER THE NOTE PURCHASE AGREEMENT OR WITH RESPECT TO THE
SUBORDINATED DEBT; (E) BORROWER SHALL HAVE PAID TO AGENT ALL FEES, COSTS AND
EXPENSES OWED TO AND/OR INCURRED BY THE AGENT AND LENDERS ARISING IN CONNECTION
WITH THE LOAN DOCUMENTS AND/OR THIS AMENDMENT; AND (F) ALL PROCEEDINGS TAKEN IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT AND ALL
DOCUMENTATION AND OTHER LEGAL MATTERS INCIDENT THERETO SHALL BE SATISFACTORY TO
THE AGENT.
SECTION 3.
CONSENT TO MODIFICATIONS OF AGREEMENTS WITH SUBORDINATED LENDER.
AS
OF THE EFFECTIVE DATE, AGENT AND LENDERS HEREBY CONSENT TO BORROWER'S EXECUTION
AND DELIVERY OF THE NOTE PURCHASE AGREEMENT AMENDMENT.
SECTION 4.
WAIVERS.
AGENT AND LENDERS (A) HEREBY ACKNOWLEDGE THAT EVENTS OF
DEFAULT EXIST BECAUSE OF BORROWER'S FAILURE TO COMPLY WITH THE (I) SENIOR FIXED
CHARGE COVERAGE RATIO FOR THE QUARTERLY TEST PERIOD ENDING JUNE 30, 2004 AND
(II) THE $1,200,000 LIMIT ON CAPITAL EXPENDITURES FOR THE FISCAL YEAR ENDING
SEPTEMBER 30, 2004; AND (B) AS OF THE EFFECTIVE DATE WAIVE ALL SUCH EVENTS OF
DEFAULT (PROVIDED, THAT THIS SHALL NOT CONSTITUTE A WAIVER OF THE INCREASED
LIMIT OF $1,550,000 FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 2004 AS PROVIDED IN
THIS AMENDMENT).
BORROWER HAS REPRESENTED TO AGENT THAT ITS SENIOR FIXED CHARGE
COVERAGE RATIO FOR THE QUARTERLY TEST PERIOD ENDING JUNE 30, 2004 WAS 0.81:1.00.
2
SECTION 5.
AGREEMENT IN FULL FORCE AND EFFECT AS AMENDED.
EXCEPT AS
SPECIFICALLY AMENDED HEREBY, THE AGREEMENT AND OTHER LOAN DOCUMENTS SHALL REMAIN
IN FULL FORCE AND EFFECT AND ARE HEREBY RATIFIED AND CONFIRMED AS SO AMENDED.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THIS AMENDMENT SHALL NOT BE DEEMED TO BE A
WAIVER, AMENDMENT OR MODIFICATION OF ANY PROVISIONS OF THE AGREEMENT OR ANY
OTHER LOAN DOCUMENT OR ANY RIGHT, POWER OR REMEDY OF AGENT OR LENDERS, OR
CONSTITUTE A WAIVER OF ANY PROVISION OF THE AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY OTHER DOCUMENT, INSTRUMENT AND/OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION THEREWITH OR OF ANY DEFAULT OR EVENT OF DEFAULT UNDER
ANY OF THE FOREGOING, IN EACH CASE WHETHER ARISING BEFORE OR AFTER THE DATE
HEREOF OR AS A RESULT OF PERFORMANCE HEREUNDER OR THEREUNDER.
THIS AMENDMENT
ALSO SHALL NOT PRECLUDE THE FUTURE EXERCISE OF ANY RIGHT, REMEDY, POWER, OR
PRIVILEGE AVAILABLE TO AGENT AND/OR LENDERS WHETHER UNDER THE AGREEMENT, THE
OTHER LOAN DOCUMENTS, AT LAW OR OTHERWISE.
ALL REFERENCES TO THE AGREEMENT
SHALL BE DEEMED TO MEAN THE AGREEMENT AS MODIFIED HEREBY.
THIS AMENDMENT SHALL
NOT CONSTITUTE A NOVATION OR SATISFACTION AND ACCORD OF THE AGREEMENT AND/OR
OTHER LOAN DOCUMENTS, BUT SHALL CONSTITUTE AN AMENDMENT THEREOF.
THE PARTIES
HERETO AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT AND LOAN
DOCUMENTS AS AMENDED BY THIS AMENDMENT, AS THOUGH SUCH TERMS AND CONDITIONS WERE
SET FORTH HEREIN.
EACH