FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
AND
AMENDMENT TO FORBEARANCE AGREMENT
THIS FIFTH AMENDMENT to the
Loan and Security Agreement and Amendment to Forbearance Agreement
dated as of April ____, 2005 (the “Amendment”), is
entered into by and between CAPITAL TEMPFUNDS, INC., a North
Carolina corporation (herein called “TEMPFUNDS”) and
STRATUS SERVICES GROUP, INC., a Delaware corporation (herein called
“BORROWER”).
R E C I
T A L
S:
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TEMPFUNDS and BORROWER are parties to a Loan
and Security Agreement dated December 8, 2000, as amended by that
certain First Amendment to Loan and Security Agreement dated June
12, 2001, and as further amended by that certain Second Amendment
to Loan and Security Agreement dated as of December 8, 2002, and as
further amended by that certain Third Amendment to Loan and
Security Agreement dated as of April 10, 2003, and as further
amended by that certain Fourth Amendment to Loan and Security
Agreement dated as of August 1, 2003 (hereinafter referred to as
the “Agreement”).
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TEMPFUNDS and BORROWER are also parties to
that certain Forbearance Agreement dated as of January 15, 2005
(the “Forbearance Agreement”).
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BORROWER and TEMPFUNDS have agreed to certain
modifications of the Agreement and the Forbearance Agreement as a
result of the ongoing business relationship between the
parties.
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AGREEMENT
IN CONSIDERATION of the above
recitals and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
1. The
above recitals are true and correct and are incorporated herein by
this reference.
2. The
Agreement is hereby amended as follows:
a. Item 8 of
Schedule 1 is hereby deleted and replaced with the following:
“8. “Term” as referred to in Section 1.33
means through August 12, 2005.”
b. The
introductory sentence to Item 27a. of Schedule 1 is deleted in its
entirety, and the following is substituted in its place:
“a. Section 1.11 (d) is deleted in its entirety, and
the following is substituted in its place:”
3. The
Forbearance Agreement is hereby amended as follows:
a. Section 4
of the Forbearance Agreement is deleted in its entirety, and the
following is substituted in its place:
“4.
Forbearance Period . So long as the
Borrower is in compliance with all of the terms and conditions of
this Agreement, Capital agrees that it will refrain from exercising
its rights and remedies under the Loan Documents and applicable law
until August 12, 2005, said period being sometimes hereinafter
referred to as the "Forbearance Period" ). During
the Forbearance Period, Borrower will be in compliance with all of
the terms and conditions of the Loan Documents. In addition, during
the Forbearance Period and thereafter, Borrower agree to provide
all financial statements required to be delivered to Capital on a
timely basis, as required by the Loan Documents.”
4. Upon
the effectiveness of this Amendment, each reference in the
Agreement and/or the Forbearance Agreement to the
“Agreement”, R
