SECOND AMENDMENT TO AMENDEDAND RESTATED FINANCING AGREEMENT

e.)           Section 7.01 of the Financing Agreement is amended by adding a new subsection, Section 7.01(w), therein which Section shall read in its entirety as follows:

 

“(w)           No later than July 15, 2009, the Borrowers shall retain, at their sole cost and expense, a financial consultant reasonably acceptable to the Agent to evaluate the Borrowers’ financial condition, business, operations and prospects.  Unless otherwise consented to by the Agent in writing, the Borrowers shall at all times thereafter retain the services of such financial consultant and cooperate fully therewith and shall make available such senior executives and other members of management and all information, books and records requested by such Persons.  The Borrower shall cause such financial consultant to share all results, reports and other data generated as a result of such evaluation with the Agent and the Lenders.”

 

f.)           Section 7.01 of the Financing Agreement is amended by adding a new subsection, Section 7.01(x), therein which Section shall read in its entirety as follows:

 

“(x)           Recapitalization.  The Borrowers shall consummate the Recapitalization Event on or before December 7, 2009.

 

g.)           Section 7.02(d) of the Financing Agreement is amended by deleting the word “and” immediately before clause (E) therein and by inserting the following clause (F) immediately following clause (E) therein:

 

“ and (F) consummate the Recapitalization Event.”

 

h.)           Section 9.01(c) of the Financing Agreement is amended by amending and restating clause (i) therein to read in its entirety as follows:

 

“(i) paragraphs (b)(vi), (c), (e), (g), (i), (p), (q), (s), (x) or clauses (i)(C), (i)(D) or (i)(E) of paragraph (t) of Section 7.01 or Section 7.02, or any Loan Party shall fail to perform or comply with any negative covenant contained in Section 6 of any Pledge Agreement to which it is a party or in Section 5 of any Security Agreement to which it is a party,”

 

3.            Conditions to Effectiveness.  This Amendment shall become effective upon the satisfaction (or waiver by the Agent) of each of the following conditions (the first date on which said conditions have been so satisfied (or so waived), the “Amendment Effective Date”):

 

a.)           The Borrowers, the Agent and the Lenders shall each have executed and delivered two originals of this Amendment;

 

b.)           On the Amendment Effective Date, no Default or Event of Default shall exist;

 

c.)           The Borrowers shall have paid the Amendment Fee (as hereinafter defined) in full to the Agent; and

 

d.)           The Borrowers shall have paid all reasonable fees, costs and expenses of the Agent and the Lenders in connection with this Amendment, including, without limitation, the fees and expenses of Proskauer Rose, LLP.

 

If the Amendment Effective Date shall not have occurred by the close of business (New York time) on September 22, 2009 (or such later time as the Agent consents to in writing), this Amendment shall be deemed rescinded, null and void.

 

4.           No Waiver.  Except as expressly stated herein, nothing herein shall be deemed to constitute a waiver of compliance with, or other modification of, any term or condition contained in the Financing Agreement or any other Loan Document and nothing contained herein shall constitute a course of conduct or dealing among the parties hereto.  Except as expressly stated herein, the Agent and the Lenders reserve all rights, privileges and remedies under the Loan Documents.

 

5.           Representations.  In order to induce the Agents and the Lenders to execute this Amendment, the Borrowers hereby represent, warrant and covenant to the Agent and the Lenders that as of the date hereof and as of the Amendment Effective Date (which representations, warranties and covenants shall survive execution and delivery of this Amendment):

 

a.)           the Borrowers are duly organized, validly existing and in good standing under the laws of their respective jurisdictions of formation;

 

b.)           the Borrowers have the power and authority to execute, deliver and perform their obligations under this Amendment;

 

c.)           the execution, delivery and performance by the Borrowers of this Amendment has been duly authorized by all necessary action and does not and will not require any registration with, consent or approval of, notice to or action by, any other Person;

 

d.)           this Amendment constitutes the legal, valid and binding obligation of the Borrowers, enforceable against the Borrowers in accordance with its terms; and

 

e.)           no Default or Event of Default exists.

 

6.           Fee.   In consideration for the amendments to the Financing Agreement provided herein, the Borrowers shall pay an amendment fee to the Agent, for the ratable benefit of the Lenders based upon their Pro Rata Shares, in an amount equal to $150,000 (the “Amendment Fee”), which fee shall be fully earned on the Amendment Effective Date, and due and payable one-half on the Amendment Effective Date and the remainder upon the Recapitalization Event.

 

7.           Counterparts.  This Amendment may be executed by the parties hereto in any number of separate counterparts, each of which when so executed, shall be deemed an original and all said counterparts when taken together shall be deemed to constitute but one and the same instrument.

 

 

8.           Successors and Assigns.  This Amendment shall be binding upon and inure to the benefit of the Borrowers and their successors and permitted assigns, and the Lenders and the Agent and their successors and permitted assigns.

 

9.           Further Assurance.  The Borrowers hereby agree from time to time, as and when requested by the Agent, to execute and deliver or cause to be executed and delivered, all such documents, instruments and agreements and to take or cause to be taken such further or other action as the Agent may reasonably deem necessary or desirable in order to carry out the intent and purposes of this Amendment.

 

10.           GOVERNING LAW.  THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO ITS CONFLICT OF LAWS PROVISIONS OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

 

11.           Severability.  Wherever possible, each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Amendment.

 

12.           Reaffirmation.  Each Borrower hereby ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which it is a party (after giving effect hereto).  Each Borrower hereby acknowledges that, except as expressly modified herein, each of the Loan Documents, remains in full force and effect and is hereby ratified and reaffirmed.

 

13.           Acknowledgment of Rights; Release of Claims.  Each Borrower hereby acknowledges that: (a) it has no defenses, claims or set-offs to the enforcement by the Agent or the Lenders of the liabilities, obligations and agreements of the Borrowers under the Financing Agreement or other Loan Documents on the date hereof; and (b) to its knowledge, the Agent and the Lenders have fully performed all undertakings and obligations owed to it as of the date hereof.  In consideration of the Agent and the Lenders entering into this Amendment, each Borrower hereby irrevocably releases and forever discharges the Agent, the Lenders and their respective Affiliates, and each such Person’s respective directors, officers, employees, agents, attorneys and representatives (each, a “Released Person”) of and from all damages, losses, claims, demands, liabilities, obligations, actions or causes of action whatsoever which such Borrower may now have or claim to have against any Released Person for or because of any matter or thing done, omitted or suffered to be done or omitted by any of the Released Persons prior to and including the date hereof and on account of or in any way concerning, arising out of or founded upon the Financing Agreement or any other Loan Document, whether presently known or unknown and of every nature and extent whatsoever.  This Section 13 shall survive the termination of the Financing Agreement and payment in full of the Obligations thereunder.

 

IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to Amended and Restated Financing Agreement to be duly executed by their respective duly authorized officers as of the date first written above.