the signature pages hereto.
BACKGROUND
A.
BORROWER, AGENT, ISSUING BANK AND THE LENDERS NAMED THEREIN ARE
PARTIES TO THAT CERTAIN AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT DATED
AS OF DECEMBER 16, 2004 (AS AMENDED BY THAT CERTAIN FIRST AMENDMENT TO AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT DATED JANUARY 10, 2005 AND AS THE SAME
MAY BE FURTHER AMENDED, MODIFIED, SUPPLEMENTED OR RESTATED FROM TIME TO TIME,
THE "LOAN AGREEMENT").
B.
BORROWER, AGENT, ISSUING BANK AND LENDERS DESIRE TO FURTHER AMEND
THE LOAN AGREEMENT AS SET FORTH HEREIN.
C.
CAPITALIZED TERMS USED HEREIN AND NOT OTHERWISE DEFINED SHALL HAVE
THE MEANINGS PROVIDED FOR SUCH TERMS IN THE LOAN AGREEMENT.
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto agree
as follows:
1.
SEASONAL PERIOD.
THE DEFINITION OF "SEASONAL PERIOD" SET FORTH
IN SECTION 10.1(OO) OF THE LOAN AGREEMENT IS HEREBY AMENDED BY REPLACING THE
REFERENCE THEREIN TO "SEPTEMBER 1, 2005" WITH "JULY 1, 2005".
2.
FURTHER AGREEMENTS AND REPRESENTATIONS.
BORROWER DOES HEREBY:
(A)
RATIFY, CONFIRM AND ACKNOWLEDGE THAT THE LOAN AGREEMENT, AS
AMENDED, AND THE OTHER LOAN DOCUMENTS CONTINUE TO BE AND ARE VALID, BINDING AND
IN FULL FORCE AND EFFECT;
(B)
COVENANT AND AGREE TO PERFORM ALL OBLIGATIONS OF BORROWER
CONTAINED HEREIN, UNDER THE LOAN AGREEMENT, AS AMENDED, AND THE OTHER LOAN
DOCUMENTS;
(C)
ACKNOWLEDGE AND AGREE THAT BORROWER HAS NO DEFENSE, SET-OFF,
COUNTERCLAIM OR CHALLENGE AGAINST THE PAYMENT OF ANY SUMS OWING UNDER LOAN
DOCUMENTS, THE ENFORCEMENT OF ANY OF THE TERMS OF THE LOAN AGREEMENT, AS
AMENDED, OR THE OTHER LOAN DOCUMENTS;
(D)
ACKNOWLEDGE AND AGREE THAT ALL REPRESENTATIONS AND WARRANTIES OF
BORROWER CONTAINED IN THE LOAN AGREEMENT AND/OR THE OTHER LOAN DOCUMENTS, AS
AMENDED, ARE TRUE, ACCURATE AND CORRECT ON AND AS OF THE DATE HEREOF AS IF MADE
ON AND AS OF THE DATE HEREOF;
(E)
REPRESENT AND WARRANT THAT NO DEFAULT OR EVENT OF DEFAULT EXISTS
AND ALL INFORMATION DESCRIBED IN THE FOREGOING BACKGROUND IS TRUE, ACCURATE AND
COMPLETE;
(F)
ACKNOWLEDGE AND AGREE THAT NOTHING CONTAINED HEREIN AND NO
ACTIONS TAKEN PURSUANT TO THE TERMS HEREOF IS INTENDED TO CONSTITUTE A NOVATION
OF THE LOAN AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND DO NOT CONSTITUTE
A RELEASE, TERMINATION OR WAIVER OF ANY OF THE RIGHTS OR REMEDIES GRANTED TO
AGENT OR ANY LENDER THEREIN, WHICH RIGHTS AND REMEDIES ARE HEREBY RATIFIED,
CONFIRMED, EXTENDED AND CONTINUED AS SECURITY FOR THE OBLIGATIONS OF BORROWER TO
AGENT AND LENDERS UNDER THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
AMENDED; AND
(G)
ACKNOWLEDGE AND AGREE THAT BORROWER'S FAILURE TO COMPLY WITH OR
PERFORM ANY OF ITS COVENANTS, AGREEMENTS OR OBLIGATIONS CONTAINED IN THIS
AMENDMENT SHALL CONSTITUTE AN EVENT OF DEFAULT UNDER THE LOAN AGREEMENT AND EACH
OF THE LOAN DOCUMENTS, SUBJECT TO ANY APPLICABLE CURE PERIODS CONTAINED THEREIN.
3.
ADDITIONAL DOCUMENTS; FURTHER ASSURANCES.
BORROWER COVENANTS AND
AGREES TO EXECUTE AND DELIVER TO AGENT, OR TO CAUSE TO BE EXECUTED AND DELIVERED
TO AGENT CONTEMPORANEOUSLY HEREWITH, AT THE SOLE COST AND EXPENSE