AND GUARANTOR HEREBY ACKNOWLEDGES AND AGREES
THAT: (I) NEITHER IT NOR ANY OF ITS SUBSIDIARIES HAS ANY CLAIM OR CAUSE OF
ACTION AGAINST AGENT OR ANY LENDER (OR ANY OF THE DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, AFFILIATES OR ATTORNEYS OF THE FOREGOING) AND (II) AGENT AND
THE LENDERS HAVE HERETOFORE PROPERLY PERFORMED AND SATISFIED IN A TIMELY MANNER
ALL OF THEIR OBLIGATIONS TO BORROWER, GUARANTOR, AND ALL OF THEIR SUBSIDIARIES
AND AFFILIATES.
AGENT AND THE LENDERS WISH (AND BORROWER AND GUARANTOR AGREE)
TO ELIMINATE ANY POSSIBILITY THAT ANY PAST CONDITIONS, ACTS, OMISSIONS, EVENTS
OR CIRCUMSTANCES WOULD IMPAIR OR OTHERWISE ADVERSELY AFFECT ANY OF THEIR RIGHTS,
INTERESTS, SECURITY AND/OR REMEDIES.
FOR AND IN CONSIDERATION OF THE AGREEMENTS
CONTAINED IN THIS AMENDMENT AND OTHER GOOD AND VALUABLE CONSIDERATION, BORROWER
AND GUARANTOR (THE "RELEASORS") UNCONDITIONALLY AND IRREVOCABLY RELEASE, WAIVE
AND FOREVER DISCHARGE AGENT AND THE LENDERS, TOGETHER WITH THEIR RESPECTIVE
SUCCESSORS, ASSIGNS, SUBSIDIARIES, AFFILIATES, AGENTS AND ATTORNEYS
(COLLECTIVELY, THE "RELEASED PARTIES"), FROM: (X) ANY AND ALL LIABILITIES,
OBLIGATIONS, DUTIES, PROMISES OR INDEBTEDNESS OF ANY KIND OF THE RELEASED
PARTIES TO THE RELEASORS OR ANY OF THEM AND (Y) ALL CLAIMS, OFFSETS, CAUSES OF
ACTION, SUITS OR DEFENSES OF ANY KIND WHATSOEVER (IF ANY), WHICH THE RELEASORS
OR ANY OF THEM MIGHT OTHERWISE HAVE AGAINST THE RELEASED PARTIES OR ANY OF THEM,
IN EITHER CASE (X) OR (Y) ON ACCOUNT OF ANY CONDITION, ACT, OMISSION, EVENT,
CONTRACT, LIABILITY, OBLIGATION, INDEBTEDNESS, CLAIM, CAUSE OF ACTION, DEFENSE,
CIRCUMSTANCE OR MATTER OF ANY KIND WHICH EXISTED, AROSE OR OCCURRED AT ANY TIME
FROM THE BEGINNING OF THE WORLD TO THE DATE THIS AMENDMENT BECOMES EFFECTIVE.
5.
REPRESENTATIONS AND WARRANTIES.
BORROWER REPRESENTS AND WARRANTS TO THE
LENDER GROUP THAT:
(A)
IT HAS THE REQUISITE POWER AND AUTHORITY TO EXECUTE AND DELIVER
THIS AMENDMENT AND TO PERFORM ITS OBLIGATIONS HEREUNDER AND UNDER EACH LOAN
DOCUMENT TO WHICH IT IS A PARTY.
THE EXECUTION, DELIVERY, AND PERFORMANCE BY IT
OF THIS AMENDMENT AND
6
THE PERFORMANCE BY IT OF EACH LOAN DOCUMENT TO WHICH IT IS A PARTY (I) HAVE BEEN
DULY APPROVED BY ALL NECESSARY ACTION AND NO OTHER PROCEEDINGS ARE NECESSARY TO
CONSUMMATE SUCH TRANSACTIONS; AND (II) ARE NOT IN CONTRAVENTION OF (A) ANY LAW,
RULE, OR REGULATION, OR ANY ORDER, JUDGMENT, DECREE, WRIT, INJUNCTION, OR AWARD
OF ANY ARBITRATOR, COURT OR GOVERNMENTAL AUTHORITY BINDING ON IT, (B) THE TERMS
OF ITS GOVERNING DOCUMENTS, OR (C) ANY PROVISION OF ANY MATERIAL CONTRACT OR
UNDERTAKING TO WHICH IT IS A PARTY OR BY WHICH ANY OF ITS PROPERTIES MAY BE
BOUND OR AFFECTED;
(B)
THIS AMENDMENT HAS BEEN DULY EXECUTED AND DELIVERED BY BORROWER.
THIS AMENDMENT AND EACH LOAN DOCUMENT TO WHICH IT IS A PARTY IS ITS LEGAL, VALID
AND BINDING OBLIGATION, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS, AND
IS IN FULL FORCE AND EFFECT;
(C)
NO INJUNCTION, WRIT, RESTRAINING ORDER, OR OTHER ORDER OF ANY
NATURE PROHIBITING, DIRECTLY OR INDIRECTLY, THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREIN HAS BEEN ISSUED AND REMAINS IN FORCE BY