and correct in all material
respects on and as of such earlier date.
4. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT.
(a) Upon the effectiveness hereof, each reference to the Credit Agreement in the
Credit Agreement or any other Loan Document shall mean and be a reference to the
Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit Agreement and all other
documents, instruments and agreements executed and/or delivered in connection
therewith shall remain in full force and effect and are hereby ratified and
confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of the Administrative Agent or
the Lenders, nor constitute a waiver of any provision of the Credit Agreement or
any other documents, instruments and agreements executed and/or delivered in
connection therewith.
5. RELEASE. IN FURTHER CONSIDERATION OF THE EXECUTION BY THE ADMINISTRATIVE
AGENT AND THE LENDERS OF THIS AMENDMENT, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THE COMPANY, ON BEHALF OF ITSELF AND EACH OF ITS SUBSIDIARIES, AND ALL OF
THE SUCCESSORS AND ASSIGNS OF EACH OF THE FOREGOING (COLLECTIVELY, THE
"RELEASORS"), HEREBY COMPLETELY, VOLUNTARILY, KNOWINGLY, AND UNCONDITIONALLY
RELEASES AND FOREVER DISCHARGES THE COLLATERAL AGENT, THE ADMINISTRATIVE AGENT,
EACH OF THE LENDERS, EACH OF THEIR ADVISORS, PROFESSIONALS AND EMPLOYEES, EACH
AFFILIATE OF THE FOREGOING AND ALL OF THEIR RESPECTIVE PERMITTED SUCCESSORS AND
ASSIGNS (COLLECTIVELY, THE "RELEASEES"), FROM ANY AND ALL CLAIMS, ACTIONS,
SUITS, AND OTHER LIABILITIES, INCLUDING, WITHOUT LIMITATION, ANY SO-CALLED
"LENDER LIABILITY" CLAIMS OR DEFENSES (COLLECTIVELY, "CLAIMS"), WHETHER ARISING
IN LAW OR IN EQUITY, WHICH ANY OF THE RELEASORS EVER HAD, NOW HAS OR HEREINAFTER
CAN, SHALL OR MAY HAVE AGAINST ANY OF THE RELEASEES FOR, UPON OR BY REASON OF
ANY MATTER, CAUSE OR THING WHATSOEVER FROM TIME TO TIME OCCURRED ON OR PRIOR TO
THE DATE HEREOF, IN ANY WAY CONCERNING, RELATING TO, OR ARISING FROM (I) ANY OF
THE TRANSACTIONS, (II) THE SECURED OBLIGATIONS, (III) THE COLLATERAL, (IV) THE
CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, (V) THE FINANCIAL
CONDITION, BUSINESS OPERATIONS, BUSINESS PLANS, PROSPECTS OR CREDITWORTHINESS OF
THE BORROWERS, AND (VI) THE NEGOTIATION, DOCUMENTATION AND EXECUTION OF THIS
AMENDMENT AND ANY DOCUMENTS RELATING HERETO EXCEPT FOR CLAIMS DETERMINED BY A
COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE
RESULTED FROM THE GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT OF SUCH
RELEASEE (OR ANY OF ITS RELATED PARTIES). THE RELEASORS HEREBY ACKNOWLEDGE THAT
THEY HAVE BEEN ADVISED BY LEGAL COUNSEL OF THE MEANING AND CONSEQUENCES OF THIS
RELEASE.
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6. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
7. HEADINGS. SECTION HEADINGS IN THIS AMENDMENT ARE INCLUDED HEREIN FOR
CONVENIENCE OF REFERENCE ONLY AND SHALL NOT CONSTITUTE A PART OF THIS AMENDMENT
FOR ANY OTHER PURPOSE.
8. COUNTERPARTS. THIS AMENDMENT MAY BE EXECUTED BY ONE OR MORE OF THE PARTIES
HERETO ON ANY NUMBER OF SEPARATE