WAIVE BORROWER'S COMPLIANCE WITH ANY OF THE OTHER TERMS OR CONDITIONS IN
ANY OF THE LOAN DOCUMENTS OR ANY OTHER EVENTS OF DEFAULT, WHETHER NOW EXISTING
OR HEREAFTER ARISING, INCLUDING, WITHOUT LIMITATION, BORROWERS' FAILURE TO
COMPLY WITH THE COVENANTS SET FORTH IN SECTIONS 8.1, 8.3 OR 8.4 OF THE LOAN
AGREEMENT AS OF ANY OTHER DATE AFTER THE DATE HEREOF.
2.
FINANCIAL COVENANTS.
(A)
SECTIONS 8.2 OF THE LOAN AGREEMENT IS HEREBY DELETED AND REPLACED
WITH THE FOLLOWING:
"8.2
Minimum Quarterly Net Income.
Borrowers shall have Net Income of
at least $0 for Borrowers' fiscal quarter ending June 30, 2008 and as of the end
of each of the first three (3) fiscal quarters of Borrowers thereafter, measured
on a year-to-date basis."
(B)
SECTIONS 8.3 OF THE LOAN AGREEMENT IS HEREBY DELETED AND REPLACED
WITH THE FOLLOWING:
"8.3
Fixed Charge Coverage Ratio.
Borrowers shall maintain a Fixed
Charge Coverage Ratio of not less than (i) 1.0 to 1.0 as of Borrowers' fiscal
quarter ending June 30, 2008, (ii) 1.0 to 1.0 as of the end of Borrowers' fiscal
quarter ending September 30, 2008 measured on a year-to-date basis and (iii) 1.2
to 1.0 as of the end of Borrowers' fiscal quarter ending December 31, 2008 and
as of the end of each fiscal quarter of Borrowers thereafter, measured on a
rolling four quarter basis.
3.
AMENDMENT FEE.
UPON EXECUTION OF THIS AMENDMENT, BORROWERS SHALL
PAY TO BANK AN AMENDMENT FEE IN THE AMOUNT OF TEN THOUSAND DOLLARS ($10,000.00)
(THE "AMENDMENT FEE") WHICH FEE MAY BE CHARGED AS A LINE ADVANCE (AS DEFINED IN
THE LOAN AGREEMENT) OR CHARGED TO ANY BANK ACCOUNT OF ANY BORROWER MAINTAINED
WITH BANK.
THE FOREGOING AMENDMENT FEE IS IN ADDITION TO THE INTEREST AND OTHER
AMOUNTS WHICH BORROWERS ARE REQUIRED TO PAY UNDER THE LOAN DOCUMENTS, AND IS
FULLY EARNED AND NONREFUNDABLE.
4.
AMENDMENT/REFERENCES.
THE LOAN AGREEMENT AND THE LOAN DOCUMENTS
ARE HEREBY AMENDED TO BE CONSISTENT WITH THE TERMS OF THIS AMENDMENT. ALL
REFERENCES IN THE LOAN AGREEMENT AND THE LOAN DOCUMENTS TO (A) THE "LOAN
AGREEMENT" SHALL MEAN THE LOAN AGREEMENT AS AMENDED HEREBY; AND (B) THE "LOAN
DOCUMENTS" SHALL INCLUDE THIS AMENDMENT AND ALL OTHER INSTRUMENTS OR AGREEMENTS
EXECUTED PURSUANT TO OR IN CONNECTION WITH THE TERMS HEREOF.
5.
RELEASE.
EACH BORROWER AND GUARANTOR ACKNOWLEDGES AND AGREES
THAT IT HAS NO CLAIMS, SUITS OR CAUSES OF ACTION AGAINST BANK AND HEREBY
REMISES, RELEASES AND FOREVER DISCHARGES BANK, THEIR OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS, AND ANY OF
2
THEM, FROM ANY CLAIMS, SUITS OR CAUSES OF ACTION WHATSOEVER, IN LAW OR AT
EQUITY, WHICH ANY BORROWER OR GUARANTOR HAS OR MAY HAVE ARISING FROM ANY ACT,
OMISSION OR OTHERWISE, AT ANY TIME UP TO AND INCLUDING THE DATE OF THIS
AMENDMENT.
6.
ADDITIONAL DOCUMENTS; FURTHER ASSURANCES.
EACH BORROWER
COVENANTS AND AGREES TO EXECUTE AND DELIVER TO BANK, OR TO CAUSE TO BE EXECUTED
AND DELIVERED TO BANK CONTEMPORANEOUSLY HEREWITH, AT THE SOLE COST AND EXPENSE
OF SUCH BORROWER, THE