DELIVERED FIVE (5) DAYS PRIOR TO THE MAKING OF SUCH
PAYMENT, WHICH FIVE (5) DAY PERIOD IS HEREBY WAIVED).
PURSUANT TO THE FOREGOING
REPRESENTATION AND WARRANTY OF THE BORROWERS, SUBJECT TO THE CONDITIONS SET
FORTH IN SECTION 7 OF THIS THIRD AMENDMENT, THE AGENTS AND THE REQUIRED LENDERS
HEREBY CONSENT TO THE PREPAYMENT IN FULL OF THE NOTE OBLIGATIONS, AND HEREBY
AGREE THAT, NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN
SECTION 7.07(B) OF THE CREDIT AGREEMENT, AS LONG AS THE PAYMENT CONDITIONS HAVE
BEEN SATISFIED, THE BORROWERS MAY USE THE PROCEEDS FROM CREDIT EXTENSIONS IN AN
AMOUNT NOT TO EXCEED $15,000,000 TO PREPAY THE ENTIRE OUTSTANDING AMOUNT OF THE
NOTE OBLIGATIONS;
PROVIDED THAT SUCH PREPAYMENT SHALL BE MADE ON OR BEFORE
AUGUST 3, 2009; AND PROVIDED FURTHER THAT THE ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED A PAYOFF LETTER FROM THE NOTE PURCHASERS ACKNOWLEDGING AND AGREEING
THAT UPON SUCH PREPAYMENT, THE NOTE OBLIGATIONS AND ALL OTHER OBLIGATIONS OF THE
LOAN PARTIES UNDER THE NOTE PURCHASE AGREEMENT SHALL BE PAID AND SATISFIED IN
FULL, THE NOTE PURCHASE
3
AGREEMENT, AND ALL DOCUMENTS AND AGREEMENTS EXECUTED IN CONNECTION THEREWITH,
SHALL BE TERMINATED AND OF NO FURTHER FORCE AND EFFECT, THE LIEN OF THE NOTE
PURCHASERS ON, AND SECURITY INTEREST IN, THE ASSETS OF THE LOAN PARTIES' SHALL
BE RELEASED AND THE NOTE PURCHASERS SHALL HAVE DELIVERED TO THE COLLATERAL AGENT
STOCK CERTIFICATES, STOCK POWERS AND OTHER NOTE PURCHASERS PRIORITY COLLATERAL
IN THE POSSESSION OF THE NOTE PURCHASERS.
6.
RATIFICATION OF LOAN DOCUMENTS; WAIVER
OF CLAIMS.
(A)
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN, ALL TERMS AND CONDITIONS OF THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS REMAIN IN FULL FORCE AND EFFECT.
THE LOAN PARTIES HEREBY RATIFY,
CONFIRM, AND REAFFIRM THAT ALL REPRESENTATIONS AND WARRANTIES OF THE LOAN
PARTIES CONTAINED IN THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT, AS
MODIFIED BY THE REVISED SCHEDULES TO THE CREDIT AGREEMENT TO BE DELIVERED WITHIN
TEN (10) BUSINESS DAYS AFTER THE DATE HEREOF, ARE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS ON AND AS OF THE DATE HEREOF, EXCEPT TO THE EXTENT THAT SUCH
REPRESENTATIONS AND WARRANTIES SPECIFICALLY REFER TO AN EARLIER DATE, IN WHICH
CASE THEY ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF SUCH EARLIER DATE.
(B)
EACH OF THE LOAN PARTIES HEREBY ACKNOWLEDGES
AND AGREES THAT THERE IS NO BASIS OR SET OF FACTS ON THE BASIS OF WHICH ANY
AMOUNT (OR ANY PORTION THEREOF) OWED BY THE LOAN PARTIES UNDER THE LOAN
DOCUMENTS COULD BE REDUCED, OFFSET, WAIVED, OR FORGIVEN, BY RESCISSION OR
OTHERWISE; NOR IS THERE ANY CLAIM, COUNTERCLAIM, OFFSET, OR DEFENSE (OR OTHER
RIGHT, REMEDY, OR BASIS HAVING A SIMILAR EFFECT) AVAILABLE TO THE LOAN PARTIES
WITH REGARD THERETO; NOR IS THERE ANY BASIS ON WHICH THE TERMS AND CONDITIONS OF
ANY OF THE OBLIGATIONS COULD BE CLAIMED TO BE OTHER THAN AS STATED ON THE
WRITTEN INSTRUMENTS WHICH EVIDENCE SUCH OBLIGATIONS.
(C)
EACH OF THE LOAN PARTIES HEREBY
ACKNOWLEDGES AND AGREES THAT IT HAS NO OFFSETS,