Million and 00/100 Dollars
($15,000,000.00) (as amended and in effect, the "Term Note").
C.
Contemporaneously with the execution and
delivery of this Sixth Amendment, the Borrower and the Lender are entering into
(1) that certain Fifth Amendment to Revolving Note dated as of March 1, 2010
(the "Amendment to Revolving Note"), (2) that certain Third Amendment to Term
Note dated as of March 1, 2010 (the "Amendment to Term Note"), and (3) that
certain First Amendment to Pledge Agreement dated as of March 1, 2010 (the
"Amendment to Pledge Agreement").
D.
The Borrower is not in compliance with one
or more of the financial covenants set forth in Section 6.14 of the Loan
Agreement for one or more of the fiscal quarters of the Borrower ending
(i) March 31, 2009, (ii) June 30, 2009, (iii) October 31, 2009, and/or
(iv) December 31, 2009.
The Borrower has made a request to the Lender to waive
such financial covenant defaults on a one time basis.
The Lender is willing to
waive such financial covenant defaults on a one time basis, subject to (a) the
terms and conditions set forth in this Sixth Amendment, and (b) the further
amendment of the Loan Agreement (1) to reduce the maximum principal amount of
the line of credit governed and secured by the Loan Agreement, (2) to obtain
additional security for the loans governed and secured by the Loan Agreement,
and (3) for certain other purposes, as more fully set forth hereafter.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual agreements herein contained, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Borrower and the Lender hereby agree as follows:
1.
CAPITALIZED TERMS. CAPITALIZED TERMS
USED IN THIS SIXTH AMENDMENT BUT NOT DEFINED HEREIN HAVE THE MEANINGS ASCRIBED
TO THEM IN THE LOAN AGREEMENT.
2.
REPRESENTATIONS AND WARRANTIES.
TO
INDUCE THE LENDER TO ENTER INTO THIS SIXTH AMENDMENT, THE BORROWER PROVIDES THE
FOLLOWING REPRESENTATIONS AND WARRANTIES TO THE LENDER:
A.
THE BORROWER'S BOOKS AND RECORDS
PROPERLY REFLECT THE BORROWER'S FINANCIAL CONDITION, AND NO MATERIAL ADVERSE
CHANGE IN THE BORROWER'S FINANCIAL CONDITION HAS OCCURRED SINCE THE LAST DATE
THAT THE BORROWER PROVIDED FINANCIAL REPORTS TO THE LENDER;
B.
NO LITIGATION WHICH, IN THE AGGREGATE,
IS MATERIAL TO BORROWER'S OPERATIONS OR FINANCIAL CONDITION, IS PENDING OR
THREATENED AGAINST THE BORROWER OF WHICH THE BORROWER HAS NOT INFORMED THE
LENDER IN WRITING OR WHICH IS NOT DISCLOSED IN THE BORROWER'S REQUIRED PUBLIC
FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION;
C.
EXCEPT AS SET FORTH IN THE RECITALS TO
THIS SIXTH AMENDMENT WITH RESPECT TO BORROWER'S NONCOMPLIANCE WITH THE FINANCIAL
COVENANTS SET FORTH IN SECTION 6.14 OF THE LOAN AGREEMENT, THE BORROWER IS IN
COMPLIANCE WITH ALL PROVISIONS OF THE LOAN
2
AGREEMENT, WITH ALL PROVISIONS OF THE OTHER LOAN DOCUMENTS, AND WITH ALL
APPLICABLE LAWS AND REGULATIONS;
D.
THE BORROWER HAS THE POWER AND AUTHORITY
TO ENTER INTO THIS SIXTH AMENDMENT, TO PERFORM ITS OBLIGATIONS HEREUNDER, TO
EXECUTE ALL DOCUMENTS, INSTRUMENTS,