OUT
OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING
FROM THE CREDIT AGREEMENT AND/OR THE OTHER LOAN DOCUMENTS, INCLUDING, WITHOUT
LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR
RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE
OF ANY RIGHTS AND REMEDIES UNDER THE CREDIT AGREEMENT OR THE OTHER LOAN
DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT.
EACH LOAN PARTY, ON BEHALF OF ITSELF AND ITS SUCCESSORS, ASSIGNS AND OTHER LEGAL
REPRESENTATIVES, HEREBY ABSOLUTELY, UNCONDITIONALLY AND IRREVOCABLY, COVENANTS
AND AGREES WITH AND IN FAVOR OF EACH OF THE RELEASED PARTIES THAT IT WILL NOT
SUE (AT LAW, IN EQUITY, IN ANY REGULATORY PROCEEDING OR OTHERWISE) ANY RELEASED
PARTY ON THE BASIS OF ANY CLAIM RELEASED, REMISED AND DISCHARGED BY THE LOAN
PARTIES PURSUANT TO THIS
3
SECTION 5. IF ANY LOAN PARTY OR ANY OF ITS SUCCESSORS, ASSIGNS OR OTHER LEGAL
REPRESENTATIVES VIOLATES THE FOREGOING COVENANT, THE LOAN PARTIES AND THEIR
SUCCESSORS, ASSIGNS AND LEGAL REPRESENTATIVES SHALL PAY, IN ADDITIONAL TO SUCH
OTHER DAMAGES AS ANY RELEASED PARTY MAY SUSTAIN AS A RESULT OF SUCH VIOLATION,
ALL ATTORNEYS' FEES AND COSTS INCURRED BY ANY RELEASED PARTY AS A RESULT OF SUCH
VIOLATION.
IN ENTERING INTO THIS AMENDMENT, THE LOAN PARTIES HAVE CONSULTED WITH, AND HAVE
BEEN REPRESENTED BY, LEGAL COUNSEL AND EXPRESSLY DISCLAIM ANY RELIANCE ON ANY
REPRESENTATIONS, ACTS OR OMISSIONS BY ANY OF THE RELEASED PARTIES AND HEREBY
AGREE AND ACKNOWLEDGE THAT THE VALIDITY AND EFFECTIVENESS OF THE RELEASES SET
FORTH IN THIS SECTION 5 DO NOT DEPEND IN ANY WAY ON ANY SUCH REPRESENTATIONS,
ACTS AND/OR OMISSIONS OR THE ACCURACY, COMPLETENESS OR VALIDITY THEREOF. THE
PROVISIONS OF THIS SECTION 5 SHALL SURVIVE THE TERMINATION OF THE CREDIT
AGREEMENT AND PAYMENT IN FULL OF THE OBLIGATIONS.
6.
Fees and Expenses. On the Effective Date, Borrower shall pay to the
Administrative Agent, for the ratable account of the Lenders, a non-refundable
amendment fee in the amount of $125,000, which fee shall be fully earned on the
Effective Date and shall not reduce or be applied against the outstanding
Obligations. The Borrower shall pay all reasonable and documented costs and
expenses of the Lenders in connection with the preparation, execution and
delivery of this Amendment (including attorneys' fees).
7.
No Third Party Beneficiaries. This Amendment and the rights and benefits
hereof shall inure to the benefit of each of the parties hereto and their
respective successors and assigns. No other person shall have or be entitled to
assert rights or benefits under this Amendment.
8.
Entirety. This Amendment (together with the Credit Agreement and the Loan
Documents) embodies the entire agreement among the Loan Parties, Administrative
Agent and Lender and supersedes all prior agreements and understandings, oral or
written, if any, relating to the subject matter hereof.
9.
Counterparts; Facsimile Delivery. This Amendment may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original. Delivery of an executed counterpart of