OF DEFAULT HAS OCCURRED AND IS CONTINUING AS OF THE DATE HEREOF AND
(III) BORROWER HAS THE POWER AND IS DULY AUTHORIZED TO ENTER INTO, DELIVER AND
PERFORM THIS AMENDMENT AND THIS AMENDMENT IS THE LEGAL, VALID AND BINDING
OBLIGATION OF THE BORROWER ENFORCEABLE AGAINST THE BORROWER IN ACCORDANCE WITH
ITS TERMS.
5.
CONDITION PRECEDENT TO EFFECTIVENESS OF THIS AMENDMENT.
THIS
AMENDMENT SHALL BECOME EFFECTIVE AS OF THE AMENDMENT DATE, AND THE AMENDMENTS
SET FORTH IN SECTION 2
4
HEREOF SHALL BE DEEMED TO BE EFFECTIVE AS OF THE AMENDMENT DATE (THE "EFFECTIVE
DATE"), UPON THE SATISFACTION IN FULL OF EACH OF THE FOLLOWING CONDITIONS
PRECEDENT:
(A) RECEIPT BY THE AGENT OF ONE OR MORE
COUNTERPARTS OF THIS AMENDMENT DULY EXECUTED AND DELIVERED BY THE BORROWER,
AGENT AND LENDERS, IN FORM AND SUBSTANCE SATISFACTORY TO AGENT AND LENDERS;
(B) RECEIPT BY THE AGENT OF PAYMENT BY THE
BORROWER OF THE AMENDMENT FEE (DEFINED BELOW) IN IMMEDIATELY AVAILABLE FUNDS;
AND
(C) RECEIPT BY AGENT OF SUCH CERTIFICATES,
DOCUMENTS AND OTHER INFORMATION NECESSARY OR REQUIRED BY AGENT AND LENDERS TO
SATISFY THE CONDITIONS SET FORTH IN SECTIONS 4.2(A) AND 4.2(B) OF THE LOAN
AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING DOCUMENTS:
(I) AN OFFICER'S CERTIFICATE IN FORM AND SUBSTANCE SATISFACTORY TO AGENT;
(ii) a secretary's certificate, in form and substance satisfactory to Agent;
(III) AN UPDATED PERFECTION CERTIFICATE, IN FORM AND SUBSTANCE SATISFACTORY TO
AGENT; AND
(IV) A DISBURSEMENT INSTRUCTION LETTER, IN FORM AND SUBSTANCE SATISFACTORY TO
AGENT.
6.
THE AMENDMENT FEE.
THE BORROWER HEREBY AGREES TO PAY TO THE
AGENT, FOR THE RATABLE BENEFIT OF THE LENDERS, AN AMENDMENT FEE (THE "AMENDMENT
FEE") IN AN AMOUNT EQUAL TO $150,000.00, AS OF THE DATE OF THIS AGREEMENT.
7.
RELEASE.
(A)
IN CONSIDERATION OF THE AGREEMENTS OF AGENT AND LENDERS CONTAINED
HEREIN AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, BORROWER, ON BEHALF OF ITSELF AND
ITS SUCCESSORS, ASSIGNS, AND OTHER LEGAL REPRESENTATIVES, HEREBY ABSOLUTELY,
UNCONDITIONALLY AND IRREVOCABLY RELEASE, REMISE AND FOREVER DISCHARGE AGENT AND
LENDERS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND THEIR RESPECTIVE
PRESENT AND FORMER SHAREHOLDERS, AFFILIATES, SUBSIDIARIES, DIVISIONS,
PREDECESSORS, DIRECTORS, OFFICERS, ATTORNEYS, EMPLOYEES, THE AGENTS AND OTHER
REPRESENTATIVES (AGENT AND LENDERS, AND ALL SUCH OTHER PERSONS BEING HEREINAFTER
REFERRED TO COLLECTIVELY AS THE "RELEASEES" AND INDIVIDUALLY AS A "RELEASEE"),
OF AND FROM ALL DEMANDS, ACTIONS, CAUSES OF ACTION, SUITS, COVENANTS, CONTRACTS,
CONTROVERSIES, AGREEMENTS, PROMISES, SUMS OF MONEY, ACCOUNTS, BILLS, RECKONINGS,
DAMAGES AND ANY AND ALL OTHER CLAIMS, COUNTERCLAIMS, DEFENSES, RIGHTS OF
SET-OFF, DEMANDS AND LIABILITIES WHATSOEVER OTHER THAN WITH RESPECT TO ANY
CLAIMS MADE TO CORRECT MANIFEST ERRORS WITH RESPECT TO AMOUNTS OWING PURSUANT TO
THE LOAN AGREEMENT OR OTHER DEBT DOCUMENTS (INDIVIDUALLY, A "CLAIM" AND
COLLECTIVELY, "CLAIMS") OF EVERY NAME AND NATURE, KNOWN OR UNKNOWN, SUSPECTED OR
UNSUSPECTED, BOTH AT LAW AND IN EQUITY, WHICH BORROWER OR ANY OF THEIR
RESPECTIVE SUCCESSORS, ASSIGNS, OR OTHER LEGAL REPRESENTATIVES MAY NOW OR
HEREAFTER OWN, HOLD, HAVE OR CLAIM TO HAVE AGAINST THE