THE FOREGOING, FROM ANY AND ALL LIABILITIES, CLAIMS, COUNTERCLAIMS, CAUSES OF
ACTION, DAMAGES, COSTS, EXPENSES OR DEMANDS OF ANY KIND WHATSOEVER IN LAW OR IN
EQUITY INCLUDING WITHOUT LIMITATION, FROM ANY CLAIMS OR JOINDERS FOR SOLE
LIABILITY, CONTRIBUTION, INDEMNITY OR OTHERWISE, WHICH EXIST AGAINST THEM OR ANY
OF THEM WHICH EACH OF THE AGENT OR THE BANKS HAS, HAD OR MAY HAVE, WHETHER KNOWN
OR UNKNOWN, FORESEEN OR UNFORESEEN, BY REASON OF, RELATING TO, OR ARISING IN
CONNECTION WITH EVENTS, ACTIONS OR INACTIONS OCCURRING PRIOR TO THE EFFECTIVE
DATE IN CONNECTION WITH THE EXISTING CREDIT AGREEMENT AND ALL LOAN DOCUMENTS AND
ALL OBLIGATIONS AND TRANSACTIONS IN CONNECTION THEREWITH, PROVIDED, HOWEVER, IF
A BANKRUPTCY PROCEEDING IS COMMENCED WITH RESPECT TO ANY OBLIGOR WITHIN NINETY
(90) DAYS OF THE EFFECTIVE DATE AND
THE AGENT AND THE BANKS ARE REQUIRED TO
DISGORGE AT LEAST $45,000,000 OF THE CONSIDERATION SET FORTH IN SECTION
2(B) ABOVE, THEN THE RELEASE SET FORTH HEREIN SHALL BE OF NO FURTHER FORCE OR
EFFECT IN ITS ENTIRETY.
The provisions of the foregoing paragraph shall not be construed as an
acknowledgement of any obligation, responsibility or liability of any party
identified above other than by the Obligors with respect to the obligations
under the Credit Agreement and this Amendment.
Notwithstanding the foregoing,
nothing herein shall release the Obligations (which are non-recourse in
accordance with the provisions of Section 13 below) and covenants set forth in
this Amendment.
6.
CONDITIONS TO EFFECTIVENESS.
THIS
AMENDMENT, AND THE COMPROMISE, SETTLEMENT, RELEASE AND MODIFICATIONS TO THE
CREDIT AGREEMENT DESCRIBED HEREIN SHALL BE EFFECTIVE ON THE EFFECTIVE DATE IF
AND ONLY IF EACH OF THE FOLLOWING CONDITIONS PRECEDENT HAS BEEN SATISFIED AS OF
THE EFFECTIVE DATE:
(A)
EXECUTION OF THIS AMENDMENT AND OTHER TRANSACTION DOCUMENTS:
THIS
AMENDMENT AND EACH OF THE OTHER TRANSACTION DOCUMENTS SHALL HAVE BEEN EXECUTED
BY THE BORROWER, EACH OTHER OBLIGOR PARTY THERETO AND EACH OF THE BANKS PARTY
THERETO.
(B)
CASH PAYMENT.
CONTEMPORANEOUS WITH THE EXECUTION AND DELIVERY OF
THIS AMENDMENT, THE BORROWER SHALL MAKE THE $45,000,000 CASH PAYMENT REFERENCED
IN SECTION 2(B) ABOVE.
(C)
EXPENSES:
THE BORROWER SHALL HAVE PAID TO THE AGENT ALL
REASONABLE OUT OF POCKET THIRD PARTY COSTS AND EXPENSES PAID OR INCURRED BY THE
AGENT (TO THE EXTENT NOT PREVIOUSLY REIMBURSED BY THE BORROWER), INCLUDING FEES
AND EXPENSES OF MESIROW FINANCIAL HOLDINGS, INC. AND THE AGENT'S COUNSEL UP TO
AN AGGREGATE AMOUNT OF $500,000 AND THE LENDERS' COUNSEL UP TO AN AGGREGATE
AMOUNT OF $50,000.
(D)
EVIDENCE OF AUTHORITY.
THE AGENT SHALL HAVE RECEIVED A DULY
CERTIFIED
7
COPY OF THE DOCUMENTS AUTHORIZING THE BORROWER TO ENTER INTO TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
7.
Representations, Warranties and
Covenants.
(A)
REPRESENTATIONS AND WARRANTIES:
THE
AMENDMENT PARTIES EACH HEREBY REPRESENT AND WARRANT TO THE AGENT AND THE BANKS,
WITH RESPECT TO ANY OF THE FOLLOWING THAT APPLIES TO IT, AS FOLLOWS:
(I)
EACH OF THE BORROWER AND THE OWNERS OF DEDICATED CDO SECURITIES
IS VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF ITS STATE OF