dated June 20, 2005 between Initial Factor and Borrower, as such
agreement may be supplemented, modified, amended, amended and restated, or
replaced with the consent of Agent, together in each case with an Assignment of
Factoring Proceeds related thereto, (b) on and after December 16, 2008, the
Amended and Restated Collection Services Factoring Agreement dated as of such
date between Borrower and Initial Factor, as such agreement may be supplemented,
modified, amended, amended and restated, or replaced from time to time with the
consent of Agent and (c) on and after the date, if any, Borrower enters into a
Factoring Agreement in form and substance satisfactory to Agent in all respects
with a Factor other than Initial Factor, such Factoring Agreement, as it may be
supplemented, modified, amended, amended and restated, or replaced from time to
time with the consent of Agent.
(IV)
A DEFINITION FOR THE NEW TERM "INITIAL FACTOR"
IS HEREBY INSERTED INTO SECTION 1.2 AS FOLLOWS:
"Initial Factor" shall mean GMAC Commercial Finance LLC.
(B)
SCHEDULE 4.5 TO THE FINANCING AGREEMENT IS
HEREBY AMENDED BY ADDING THE FOLLOWING EQUIPMENT AND INVENTORY LOCATIONS AT THE
END THEREOF, EFFECTIVE AS OF THE DATE AGENT SHALL HAVE RECEIVED A FULLY EXECUTED
LANDLORD'S LIEN WAIVER FOR EACH SUCH NEW LOCATION, EACH IN FORM AND SUBSTANCE
SATISFACTORY TO AGENT IN ALL RESPECTS,:
800 FEDERAL BOULEVARD, CARTERET, NEW JERSEY 07008
51-53 HOOK ROAD, BAYONNE, NEW JERSEY 07008
2
35 ENTERPRISE AVENUE, SECAUCUS, NEW JERSEY 07094
809 EAST 236 STREET, CARSON, CALIFORNIA 90745
500 INDUSTRIAL ROAD, CARLSTADT, NEW JERSEY 07072
3.
CONDITIONS OF EFFECTIVENESS.
THIS
AMENDMENT SHALL BECOME EFFECTIVE UPON SATISFACTION OF THE FOLLOWING CONDITIONS
PRECEDENT:
(A)
AGENT SHALL HAVE RECEIVED FOUR (4) COPIES
OF THIS AMENDMENT EXECUTED BY BORROWER, VERRAZANO, AGENT AND LENDERS.
(B)
ALL REASONABLE OUT-OF-POCKET COSTS AND
EXPENSES INCURRED BY AGENT IN CONNECTION WITH THIS AMENDMENT OR WITH THE
FINANCING AGREEMENT, INCLUDING WITHOUT LIMITATION ATTORNEYS FEES AND
DISBURSEMENTS, SHALL HAVE BEEN PAID BY BORROWER.
4.
REPRESENTATIONS AND WARRANTIES.
BORROWER AND VERRAZANO EACH HEREBY REPRESENTS AND WARRANTS AS FOLLOWS:
(A)
THIS AMENDMENT AND THE FINANCING AGREEMENT,
AS AMENDED HEREBY, CONSTITUTE ITS LEGAL, VALID AND BINDING OBLIGATIONS AND ARE
ENFORCEABLE AGAINST IT IN ACCORDANCE WITH THEIR RESPECTIVE TERMS.
(B)
UPON THE EFFECTIVENESS OF THIS AMENDMENT, IT
HEREBY REAFFIRMS, IN ALL MATERIAL RESPECTS, ALL REPRESENTATIONS, WARRANTIES AND
COVENANTS MADE IN THE FINANCING AGREEMENT ON AND AS OF THE DATE HEREOF EXCEPT:
(I) TO THE EXTENT SUCH REPRESENTATION, WARRANTIES OR COVENANTS ARE LIMITED BY
THEIR TERMS TO A SPECIFIC DATE IN WHICH CASE THEY SHALL BE TRUE AND CORRECT IN
ALL MATERIAL RESPECTS AS OF SUCH DATE OR (II) FOR CHANGES IN THE NATURE OF ITS
BUSINESS OR OPERATIONS THAT MAY OCCUR AFTER THE CLOSING DATE IN THE ORDINARY
COURSE OF BUSINESS SO LONG AS AGENT HAS CONSENTED TO SUCH CHANGES OR SUCH
CHANGES ARE NOT IN VIOLATION OF ANY PROVISION OF THE FINANCING AGREEMENT OR ANY
OTHER DOCUMENT.
(C)
NO EVENT OF DEFAULT OR DEFAULT HAS OCCURRED
AND IS CONTINUING OR WOULD EXIST