TO THE TERMS AND CONDITIONS IN THIS AGREEMENT (OTHER THAN THE BORROWING
LIMITATION IN SECTION (A) OF THE DEFINITION OF "BORROWING BASE" IN SCHEDULE
1.1), ADVANCES THAT WOULD CAUSE THE AMOUNT OF THE OBLIGATIONS TO SO EXCEED) THE
LIMITATIONS SET FORTH IN SECTIONS 2.1 AND 2.12 IN AN AMOUNT NOT TO EXCEED
$7,500,000 (THE "TEMPORARY OVERADVANCE AMOUNT"); PROVIDED, HOWEVER, IN NO EVENT
SHALL THE AMOUNT OF OBLIGATIONS (TAKING INTO ACCOUNT THE TEMPORARY OVERADVANCE
AMOUNT) OWED BY BORROWERS TO THE LENDER GROUP EXCEED THE MAXIMUM REVOLVER AMOUNT
LESS THE LETTER OF CREDIT USAGE AT SUCH TIME AND LESS THE BANK PRODUCT RESERVE.
ON THE TEMPORARY OVERADVANCE TERMINATION DATE, BORROWERS SHALL PAY THE THEN
OUTSTANDING OVERADVANCES IN FULL."
(B)
SCHEDULE 1.1 OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY ADDING
THE FOLLOWING DEFINITIONS THERETO IN ALPHABETICAL ORDER TO READ AS FOLLOWS:
"Temporary Overadvance Amount" means the temporary overadvance amount set forth
in Section 2.5.
"Temporary Overadvance Period" means the temporary overadvance period set forth
in Section 2.5.
"Temporary Overadvance Termination Date" means the temporary overadvance
termination date set forth in Section 2.5.
3.
CONDITIONS PRECEDENT TO AMENDMENT.
THE SATISFACTION OF EACH OF THE
FOLLOWING SHALL CONSTITUTE CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
AMENDMENT AND EACH AND EVERY PROVISION HEREOF:
(A)
AGENT SHALL HAVE RECEIVED THIS AMENDMENT, DULY EXECUTED BY THE
PARTIES HERETO, AND THE SAME SHALL BE IN FULL FORCE AND EFFECT.
(B)
AGENT SHALL HAVE RECEIVED AN AMENDMENT FEE IN THE AMOUNT OF
$100,000, WHICH AMOUNT BORROWER AUTHORIZES AGENT, FOR THE BENEFIT OF THE
LENDERS, TO CHARGE TO THE LOAN ACCOUNT.
SUCH FEE SHALL BE FULLY EARNED AND PAID
IN FULL IN IMMEDIATELY AVAILABLE FUNDS ON OR BEFORE THE DATE HEREOF.
(C)
THE REPRESENTATIONS AND WARRANTIES HEREIN AND IN THE CREDIT
AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS ON AND AS OF THE DATE HEREOF, AS THOUGH MADE ON SUCH DATE (EXCEPT TO
THE EXTENT THAT SUCH REPRESENTATIONS AND WARRANTIES RELATE SOLELY TO AN EARLIER
DATE).
(D)
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING ON THE DATE HEREOF, NOR SHALL RESULT FROM THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREIN.
2
(E)
NO INJUNCTION, WRIT, RESTRAINING ORDER, OR OTHER ORDER OF ANY
NATURE PROHIBITING, DIRECTLY OR INDIRECTLY, THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREIN SHALL HAVE BEEN ISSUED AND REMAIN IN FORCE BY ANY
GOVERNMENTAL AUTHORITY AGAINST ANY BORROWER, ANY GUARANTOR, AGENT, OR ANY
LENDER.
4.
REPRESENTATIONS AND WARRANTIES.
EACH BORROWER REPRESENTS AND WARRANTS TO
THE LENDER GROUP THAT (A) THE EXECUTION, DELIVERY, AND PERFORMANCE OF THIS
AMENDMENT AND OF THE CREDIT AGREEMENT, AS AMENDED HEREBY, (I) ARE WITHIN ITS
POWERS, (II) HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY ACTION, AND (III) ARE
NOT IN CONTRAVENTION OF ANY LAW, RULE, OR REGULATION APPLICABLE TO IT, OR ANY
ORDER, JUDGMENT, DECREE, WRIT, INJUNCTION, OR AWARD OF ANY ARBITRATOR, COURT, OR
GOVERNMENTAL AUTHORITY, OR OF THE TERMS OF ITS GOVERNING DOCUMENTS, OR OF ANY
CONTRACT OR UNDERTAKING TO WHICH