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EXHIBIT 10.4
AMENDMENTS TO INTERCREDITOR, SUBORDINATION AND
STANDBY
AGREEMENT dated as of SEPTEMBER 2, 2003
Amendment #3 to Section 17 of the Intercreditor
Agreement
The bold and italicized language below will be
added to Section 17:
(c) In addition
to any vote required by both the holders of a majority of the
Senior Debt and the holders of a majority of the Subordinated Debt
in order to amend this Agreement, the agreement of the Borrower
shall also be required for any amendment to become
effective.
Amendment #4 to the Intercreditor Agreement; new Section
29
The bold and italicized language below will be
added to the Intercreditor Agreement as Section 29:
Notwithstanding
anything contained in this Agreement or any of the Senior Loan
Documents or Subordinated Loan Documents, or any applicable state
or federal law to the contrary; Any Senior Lender(s) or any
Subordinated Lender(s) shall not take any legal action to obtain a
judgment for all or any portion of either any Senior Debt or any
Subordinated Debt without the express prior written consent of the
holders of a majority of the Senior Debt, which consent may be
granted or withheld in the sole and absolute discretion of each
holder of Senior Debt. The prior approval requirements contained in
this section for Senior and Subordinated Lenders shall be in
addition to any other provisions in this Agreement that require, as
the case may be, any Senior or Subordinated Lender(s) to obtain the
approval of a majority of either the Senior Debt holders,
Subordinated Debt holders or both the Senior and Subordinated Debt
holders before taking certain actions.
Amendment #5 to the Intercreditor Agreement; new Section
30
The bold and italicized language below will be
added to the Intercreditor Agreement as Section 30:
30. Statute of Limitations,
Waivers .
(a) Notwithstanding anything contained in this
Agreement or any of the Senior Loan Documents or Subordinated Loan
Documents, or any applicable state or federal law to the contrary;
the time-period after which Borrower shall have the right to plead
any statute of limitations as a defense to any demand made by a
Senior Lender under any Senior Loan Document or any demand made by
a Subordinated Lender under any Subordinated Loan Document shall be
two and one-half (2 1/2) years. Further, the purpose of this
provision is to modify (shorten) the time-period that must elapse
before Borrower may plead any statute of limitations as a defense
to any demand made by a Senior or Subordinated Lender.
(b) Notwithstanding anything contained in this
Agreement or any of the Senior Loan Documents or Subordinated Loan
Documents, or any applicable state or federal law to the contrary;
Borrower's right to plead any statute of limitations as a defense
to any demand made under any Senior Loan Document or any
Subordinated Loan Document, including, but not limited to, any
Promissory Note, Security Agreement or Subordinate Security
Agreement, shall not be terminated, and any provision contained in
any Senior Loan Document or any Subordinated Loan Document that
waives or terminates such right to plead any statute of limitations
shall be null and void.
(c) Nothing contained in this Section or any
other section or provision in this Agreement shall be construed to
have negated any of the requirements under this Agreement that
certain actions taken by any Senior or Subordinated Lender(s)
require, as the case may be, the approval of a majority of either
the Senior Debt holders, Subordinated Debt holders or both the
Senior and Subordinated Debt holders.
(d) All Senior Lenders and all Subordinated
Lenders
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