OF THE
NOTES OUTSTANDING AT THE TIME SUCH REQUEST IS MADE; AND PROVIDED, FURTHER, THAT
SUCH NOTES THAT ARE REPLACED SHALL THEN BE DEEMED NO LONGER OUTSTANDING
HEREUNDER AND REPLACED BY SUCH NEW NOTES AND RETURNED TO BORROWER WITHIN A
REASONABLE PERIOD OF TIME AFTER AGENT'S RECEIPT OF THE REPLACEMENT NOTES.
(III)
UPON RECEIPT OF EVIDENCE REASONABLY SATISFACTORY TO THE BORROWER
OF THE MUTILATION, DESTRUCTION, LOSS OR THEFT OF ANY THEN EXISTING SUBJECT NOTES
AND THE OWNERSHIP THEREOF, THE BORROWER SHALL, UPON THE WRITTEN REQUEST OF THE
HOLDER OF SUCH NOTES, EXECUTE AND DELIVER IN REPLACEMENT THEREOF NEW NOTES IN
THE SAME FORM, IN THE SAME ORIGINAL PRINCIPAL AMOUNT AND DATED THE SAME DATE AS
THE NOTES SO MUTILATED, DESTROYED, LOST OR STOLEN; AND SUCH NOTES SO MUTILATED,
DESTROYED, LOST OR STOLEN SHALL THEN BE DEEMED NO LONGER OUTSTANDING HEREUNDER.
IF THE NOTES BEING REPLACED HAVE BEEN MUTILATED, THEY SHALL BE SURRENDERED TO
THE BORROWER AFTER AGENT'S RECEIPT OF THE REPLACEMENT NOTES; AND IF SUCH
REPLACED NOTES HAVE BEEN DESTROYED, LOST OR STOLEN SUCH HOLDER SHALL FURNISH THE
BORROWER WITH AN INDEMNITY IN WRITING REASONABLY ACCEPTABLE TO THE BORROWER AND
AGENT TO SAVE THEM HARMLESS IN RESPECT OF SUCH REPLACED NOTE."
(E)
SECTION 3.4 OF THE LOAN AGREEMENT SHALL BE AND IS HEREBY AMENDED
AND RESTATED AS FOLLOWS:
"3.4. REDUCED EXIT FEE.
ON AUGUST 9, 2005, THE BORROWER PAID TO AGENT FOR THE
RATABLE BENEFIT OF THE LENDERS, THE REDUCED EXIT FEE (AS DEFINED IN THE NINTH
AMENDMENT) IN FULL SATISFACTION OF ANY EXIT FEE OR TERMINATION FEE THAT WOULD
OTHERWISE NOW OR IN THE FUTURE BE DUE HEREUNDER."
(F)
SECTION 3.6 OF THE LOAN AGREEMENT SHALL BE AND IS HEREBY DELETED
IN THE ENTIRETY AND REPLACED WITH THE FOLLOWING:
"3.6.
LATE FEE; DEFAULT RATE OF INTEREST.
NOTWITHSTANDING ANY OTHER
PROVISION OF ANY LOAN DOCUMENT, IF ANY PAYMENT, INTEREST, OBLIGATION, FEE,
CHARGE OR OTHER AMOUNT DUE UNDER ANY LOAN DOCUMENT IS NOT RECEIVED BY AGENT
WITHIN THREE (3) BUSINESS DAYS OF ITS DUE DATE, THEN BORROWER SHALL PAY TO AGENT
FOR THE RATABLE BENEFIT OF LENDERS A LATE CHARGE EQUAL TO 5% OF THE AMOUNT NOT
TIMELY MADE OR PAID.
UPON THE OCCURRENCE AND DURING THE CONTINUATION OF AN
EVENT OF DEFAULT, THE APPLICABLE RATE OF INTEREST IN EFFECT AT SUCH TIME WITH
RESPECT TO THE OBLIGATIONS (OTHER THAN THE NINTH AMENDMENT AMORTIZING ADVANCE
AMOUNT) SHALL BE INCREASED BY 5% PER ANNUM (THE "DEFAULT RATE")."
(G)
APPENDIX A TO THE LOAN AGREEMENT SHALL BE AND IS HEREBY AMENDED TO
ADD THE FOLLOWING DEFINITIONS IN PROPER ALPHABETICAL ORDER:
"NINTH AMENDMENT AMORTIZING ADVANCE AMOUNT" SHALL MEAN (A) FROM AUGUST _, 2005
THROUGH JANUARY 30, 2007, $650,000, AND (B) AS OF JANUARY 30, 2007 AND
THEREAFTER, $-0-.
UPON THE REVOLVING FACILITY MATURITY DATE, THE BORROWER SHALL
IMMEDIATELY WITHOUT NOTICE OR DEMAND REPAY ANY OUTSTANDING ADVANCES THAT EXCEED
AVAILABILITY (AFTER TAKING INTO CONSIDERATION THE REDUCTION TO ZERO DOLLARS ($0)
OF THE NINTH AMENDMENT AMORTIZING ADVANCE AMOUNT).
"Ninth Amendment" shall mean that certain Ninth Amendment