125,000
June 30, 2006
$
270,000
September 30, 2006
$
490,000
December 31, 2006
$
580,000
March 31, 2007
$
820,000
June 30, 2007
$
780,000
4
3.
REPRESENTATIONS AND WARRANTIES OF BORROWERS.
EACH BORROWER
REPRESENTS AND WARRANTS THAT, AS OF THE DATE HEREOF:
(A)
BORROWERS HAVE THE RIGHT AND POWER AND IS DULY AUTHORIZED TO ENTER
INTO THIS AMENDMENT AND ALL OTHER AGREEMENTS EXECUTED IN CONNECTION HEREWITH;
(B)
THE EXECUTION, DELIVERY AND PERFORMANCE BY BORROWERS OF THIS
AMENDMENT AND THE OTHER AGREEMENTS TO WHICH EACH BORROWER IS A PARTY (I) HAVE
BEEN DULY AUTHORIZED BY ALL NECESSARY ACTION ON ITS PART; (II) DO NOT AND WILL
NOT, BY THE LAPSE OF TIME, GIVING OF NOTICE OR OTHERWISE, VIOLATE THE PROVISIONS
OF THE TERMS OF ITS CERTIFICATE OF INCORPORATION OR BY-LAWS, OR OF ANY MORTGAGE,
INDENTURE, SECURITY AGREEMENT, CONTRACT, UNDERTAKING OR OTHER AGREEMENT TO WHICH
A BORROWER IS A PARTY, OR WHICH PURPORTS TO BE BINDING ON A BORROWER OR ANY OF
ITS PROPERTIES; (III) DO NOT AND WILL NOT, BY LAPSE OF TIME, THE GIVING OF
NOTICE OR OTHERWISE, CONTRAVENE ANY GOVERNMENTAL RESTRICTION TO WHICH A BORROWER
OR ANY OF ITS PROPERTIES MAY BE SUBJECT; AND (IV) DO NOT AND WILL NOT, EXCEPT AS
CONTEMPLATED IN THE LOAN AGREEMENT, RESULT IN THE IMPOSITION OF ANY LIEN,
CHARGE, SECURITY INTEREST OR ENCUMBRANCE UPON ANY OF A BORROWER'S PROPERTIES
UNDER ANY INDENTURE, MORTGAGE, DEED OF TRUST, LOAN OR CREDIT AGREEMENT OR OTHER
AGREEMENT OR INSTRUMENT TO WHICH A BORROWER IS A PARTY OR WHICH PURPORTS TO BE
BINDING ON A BORROWER OR ANY OF ITS PROPERTIES;
(C)
NO CONSENT, LICENSE, REGISTRATION OR APPROVAL OF ANY GOVERNMENTAL
AUTHORITY BUREAU OR AGENCY IS REQUIRED IN CONNECTION WITH THE EXECUTION,
DELIVERY, PERFORMANCE, VALIDITY OR ENFORCEABILITY OF THIS AMENDMENT AND THE
OTHER AGREEMENTS EXECUTED BY BORROWERS IN CONNECTION HEREWITH; AND
(D)
THIS AMENDMENT AND THE OTHER AGREEMENTS EXECUTED BY EACH BORROWER
IN CONNECTION HEREWITH HAVE BEEN DULY EXECUTED AND DELIVERED BY BORROWERS AND
ARE ENFORCEABLE AGAINST BORROWERS IN ACCORDANCE WITH THEIR TERMS.
(E)
NO EVENT OF DEFAULT EXISTS UNDER THE LOAN AGREEMENT OTHER THAN THE
EXISTING DEFAULT.
4.
CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT.
THE EFFECTIVENESS
OF THE TERMS AND PROVISIONS OF THIS AMENDMENT SHALL BE SUBJECT TO (I) THE
EXECUTION AND DELIVERY BY BORROWERS AND LENDER OF THIS AMENDMENT AND (II)
PAYMENT BY BORROWERS OF A $50,000 WAIVER AND AMENDMENT FEE TO BE AUTOMATICALLY
DEDUCTED BY LENDER.
5.
ADDITIONAL EVENT OF DEFAULT.
AN EVENT OF DEFAULT SHALL EXIST IF
EITHER BORROWER FAILS TO DELIVER TO LENDER AN EXECUTED ACCOUNT ASSIGNMENT
AGREEMENT AND BLOCKED ACCOUNT AGREEMENT, EACH IN FORM AND SUBSTANCE SATISFACTORY
TO LENDER, BY 5:00 P.M. CENTRAL STANDARD TIME ON NOVEMBER 14, 2005.
5
6.
COSTS AND EXPENSES.
BORROWER AGREES TO PAY ALL REASONABLE LEGAL
FEES AND OTHER EXPENSES, WHETHER FOR IN-HOUSE OR OUTSIDE COUNSEL, INCURRED BY
LENDER IN CONNECTION WITH THIS AMENDMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY.
7.
LOAN AGREEMENT REMAINS IN FORCE.
EXCEPT AS SPECIFICALLY WAIVED
AND AMENDED HEREBY, ALL