or written) which could in any way be
5
construed to amend, modify, alter or terminate any one or more instruments or
agreements evidencing or relating to the Subordinated Debt."
(J)
APPENDIX A TO THE LOAN AGREEMENT SHALL
BE AND IS HEREBY AMENDED TO ADD THE FOLLOWING DEFINITIONS IN PROPER ALPHABETICAL
ORDER:
"AMORTIZING ADVANCE AMOUNT" SHALL MEAN (A) FROM FEBRUARY 18, 2005 THROUGH MAY
31, 2005, $500,000.00, AND (B) AS OF JUNE 1, 2005 AND THEREAFTER, $-0-.
UPON
JUNE 1, 2005, THE BORROWER SHALL IMMEDIATELY WITHOUT NOTICE OR DEMAND REPAY ANY
OUTSTANDING ADVANCES THAT EXCEED THE AVAILABILITY (AFTER TAKING INTO
CONSIDERATION THE REDUCTION TO ZERO DOLLARS ($-0-) OF THE AMORTIZING ADVANCE
AMOUNT).
"AMORTIZING ADVANCE FEE" SHALL HAVE THE MEANING SET FORTH IN SECTION 3.1A OF
THIS AGREEMENT.
"AMORTIZING ADVANCE PERIOD" SHALL MEAN FEBRUARY 18, 2005 THROUGH AND INCLUDING
MAY 31, 2005.
"Eighth Amendment" shall mean that certain Eighth Amendment to Revolving Credit
and Term Loan Agreement dated as of February 18, 2005 among Borrower, Agent and
Lenders.
(K)
APPENDIX A TO THE LOAN AGREEMENT SHALL BE
AND IS HEREBY AMENDED TO AMEND AND RESTATE THE FOLLOWING DEFINITION IN ITS
ENTIRETY:
"NOTES" SHALL MEAN, COLLECTIVELY AND EACH INDIVIDUALLY, THE REVOLVING NOTES AND
THE TERM NOTE, AS THE SAME MAY BE AMENDED, MODIFIED, DIVIDED, SPLIT,
SUPPLEMENTED AND/OR RESTATED FROM TIME TO TIME.
(L)
APPENDIX A TO THE LOAN AGREEMENT SHALL
BE AND IS HEREBY AMENDED TO DELETE THE DEFINITION OF "APPLICABLE ECF PERCENTAGE"
SET FORTH THEREIN IN ITS ENTIRETY.
(M)
ANNEX I (FINANCIAL COVENANTS) TO THE LOAN
AGREEMENT SHALL BE AND HEREBY IS AMENDED AND RESTATED IN ITS ENTIRETY AS SET
FORTH ON ANNEX I (FINANCIAL COVENANTS) ATTACHED HERETO.
(N)
ON OR BEFORE FEBRUARY 18, 2005, BORROWER
SHALL PAY TO AGENT, FOR THE RATABLE BENEFIT OF THE LENDERS, $110,000 IN CASH AS
A NONREFUNDABLE AMENDMENT FEE (THE "EIGHTH AMENDMENT FEE")."
SECTION 3.
CONDITIONS PRECEDENT.
THIS AMENDMENT SHALL BE EFFECTIVE UPON THE
SATISFACTION OF THE FOLLOWING CONDITIONS PRECEDENT (THE "EFFECTIVE DATE"):
(A)
THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN, IN THE LOAN AGREEMENT AND
IN ALL OTHER LOAN DOCUMENTS SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS
AS OF THE DATE HEREOF, EXCEPT FOR SUCH REPRESENTATIONS AND WARRANTIES LIMITED BY
THEIR TERMS TO A SPECIFIC DATE, AND ALL COVENANTS AND OTHER AGREEMENTS HEREIN,
IN THE LOAN AGREEMENT AND IN ALL OTHER LOAN DOCUMENTS SHALL BE AND ARE HEREBY
CONFIRMED AND RATIFIED IN ALL RESPECTS; (B) AFTER GIVING EFFECT TO THE WAIVER OF
THE SPECIFIED EVENTS
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OF DEFAULT PURSUANT TO SECTION 7 OF THIS AMENDMENT, NO DEFAULT OR EVENT OF
DEFAULT SHALL BE IN EXISTENCE AS OF THE DATE HEREOF; (C) BORROWER SHALL HAVE
DELIVERED TO THE AGENT AN EXECUTED ORIGINAL COPY OF THIS AMENDMENT AND EACH
OTHER AGREEMENT, DOCUMENT OR INSTRUMENT REASONABLY REQUESTED BY THE AGENT IN
CONNECTION WITH THIS AMENDMENT, INCLUDING, WITHOUT LIMITATION THE AMENDED AND
RESTATED REVOLVING NOTES DESCRIBED IN SUBSECTION (D) BELOW; (D) BORROWER SHALL
HAVE DELIVERED TO THE LENDERS THE EXECUTED AMENDED AND RESTATED REVOLVING NOTES