SECOND AMENDMENT TO LOANAGREEMENT

A.    Reference is made to the Loan Agreement, dated as of September 16, 1999 as amended by that certain First Amendment to Loan Agreement dated as of July 15, 2004 (said loan agreement as amended from time to time being referred to hereinafter as the “Loan Agreement”), between the Borrower and the Lender, pursuant to which Lender made available to Borrower the Revolving Loan (as defined in the Loan Agreement).

B.    The Borrower has requested (i) an increase of the maximum amount available under the Revolving Loan from $20,000,000 to $25,000,000, (ii) an extension of the Maturity Date of the Revolving Loan to December 31, 2011, and (iii) certain other modifications to the terms and conditions of the Loan Agreement, as specified herein.

C.    The Lender is amenable to said modifications in accordance with, and subject to, the terms and conditions of this Amendment.

NOW, THEREFORE, for good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto agree as follows:

Section 1.     Definitions

All capitalized terms used but not otherwise defined in this Amendment shall have the meanings given to such terms in the Loan Agreement.

Section 2.     Acknowledgment of Revolving Loan and Waiver.

The Borrower acknowledges and agrees that the Revolving Loan is a valid and binding obligation of the Borrower enforceable against the Borrower in accordance with the terms of the Loan Documents, and that there are no claims, set-offs or defenses to the paymentthereof.

Section 3.     Amendment to the Loan Agreement.

(a)    References in the following Sections of the Loan Agreement to “$20,000,000” shall be deleted and replaced by references to “$25,000,000”: the defined term “Commitment” in Section 1.1 of the Loan Agreement; Section 2.1 of the Loan Agreement; and Section 2.2 of the Loan Agreement.

(b)    The defined term "Maturity Date" set forth in Section 1.1 of the Loan Agreement shall be amended and restated to read as follows:

 

(d)    Section 3.6 of the Loan Agreement shall be amended and restated as follows:

“3.6 Term. The Term of this Loan Agreement shall expire at midnight on the Maturity Date. The Maturity Date, and therefore the Term of this Agreement, may be extended for additional one (1) year periods as of December 31st of each year during the Term of this Agreement upon the written request of the Borrower to the Lender made at least two (2) months prior (but not more than three (3) months prior) to said date during the Term of this Agreement. Such notice shall be accompanied (i) by a certificate from the Chief Financial Officer of the Borrower stating that no Default or Event of Default has occurred and is then continuing and the representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects on such date and (ii) three year financial projections in GAAP format. The Lender shall not be obligated to grant any such extension, it being acknowledged that the Lender may or may not grant any such extension in its sole and absolute discretion, however, the Lender agrees to reply to any such request within thirty days after receipt of a request therefor in accordance with this Section 3.6. The foregoing notwithstanding, the Borrower and the Lender may agree on further extensions of the Maturity Date and therefore the Term of this Agreement from time to time and on such terms as the parties may propose and accept.”

(e) Section 5.12 of the Loan Agreement shall be amended and restated to read as follows:

(f) Section 7.4(B) of the Loan Agreement shall be amended and restated to read as follows:

(g)    Section 7.4(E) of the Loan Agreement shall be amended and restated to read as follows:

(h)    Section 7.11 of the Loan Agreement shall be amended and restated to read as follows:

Section 4.      Conditions Precedent. The agreement of the Lender to amend the Loan Agreement as set forth herein is subject to the conditions precedent that, on or before the date hereof, the Lender shall have received the following, each in form and substance satisfactory to the Lender:

(a) this Amendment, duly executed and delivered by the Borrower;

(b) an Amended and Restated Revolving Note made by Borrower in favor of

Lender in the aggregate principal amount of $25,000,000, substantially in the form attached hereto as EXHIBIT "A", duly executed and delivered by the Borrower;

 

(c) payment in full to Lender of a loan processing fee in connection with this Amendment in the amount of $25,000;

(d) payment in full of all fees and expenses incurred by the Lender's outside counsel for legal services rendered in connection with this Amendment; and

 

(e) such other documents and information as the Lender may reasonably request.

Section 5.     Representations and Warranties. To induce the Lender to enter into this Amendment, the Borrower makes the following representations and warranties to the Lender, which shall survive the execution and delivery hereof:

(a)    The execution and delivery of this Amendment has been authorized by all necessary corporate action on its part, this Amendment has been duly executed and delivered by it, and this Amendment and the Loan Agreement, as amended hereby, constitutes the legal, valid and binding obligations of it enforceable against it in accordance with its terms subject to applicable bankruptcy, insolvency, reorganization and other laws affecting creditors' rights generally, moratorium laws from time to time in effect and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);

(b)    No Event of Default has occurred and is continuing under the Loan Agreement, and no event has occurred that, with notice, lapse of time or both, would constitute such an Event of Default; and

(c)      The representations and warranties set forth in the Loan Agreement and the other Loan Documents are true and correct as of the date hereof in all material respects.

Section 6.      Effect of Amendment; No Novation. Except as expressly set forth herein, this Amendment shall not, by implication or otherwise, limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lender under the Loan Agreement, nor alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Loan Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect. All references to the Loan Agreement in anyLoan Document or other instrument, agreement or document shall hereafter be deemed to refer to the Loan Agreement as amended by this Amendment. This Amendment is given as a modification of the Borrower's obligations under the Loan Agreement and is not given in substitution therefor or extinguishment thereof and is not intended to be a novation.

Section 7.      Waiver of Claims and Defenses; Release. The Borrower agrees that, as of the date hereof, it has no claim, counterclaim, cause of action or defense of any kind by way of setoff or otherwise (i) to the payment and satisfaction in full of the Revolving Loan, (ii) inconnection with any provisions of the Loan Agreement and the other Loan Documents and (iii) in connection with any and all acts or omissions of the Bank in administering the amounts outstanding under the Loan Documents or otherwise. The foregoing notwithstanding, to the extent that any such claim or defense may or does exist as of the date hereof, the Borrower waives and releases any and all such claims, counterclaims, causes of action and defenses. Section 8. Entire Agreement. This Amendment constitutes the entire agreement of the parties hereto with respect to an amendment of the Loan Agreement pertaining to the subject matter hereof, and it supersedes and replaces all prior and contemporaneous agreements, discussions and understandings (whether written or oral) with respect to such amendment. Section 9. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.

 

Section 10.     Governing Law. This Amendment, including the validity thereof and the rights and obligations of the parties hereunder, shall be construed in accordance with and governed by the laws of the State of New Jersey.

Section 11.     Execution Certification. This Amendment has been executed by the Borrower and delivered to the Lender in the State of New Jersey.

Section 12.     Patriot Act Notice. To help the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. For purposes of this Section, account shall be understood to include loan accounts.

Section 13.    OFAC Provisions. None of the Borrower, any guarantor, any subsidiary of the Borrower or any guarantor nor any affiliate of the Borrower or any guarantor is (i) named on the list of Specially Designated Nationals or Blocked Persons maintained by the U.S. Department of the Treasury's Office of Foreign Assets Control available at http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or (ii) (A) an agency of the government of a country, (B) an organization controlled by a country, or (C) a person resident in a country that is subject to a sanctions program identified on the list maintained by the U.S. Department of the Treasury's Office of Foreign Assets Control and available at http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or as otherwise published from time to time, as such program may be applicable to such agency, organization or person, and the proceeds from the loan will not be used to fund any operations in, finance any investments or activities in, or make any payments to, any such country, agency, organization or person.

 

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year first above written.