Default shall have occurred and be
continuing as of the Second Amendment Effective Date.
Section 4. Representations and Warranties; Etc. The Borrower hereby affirms:
(a) that as of the date of execution and delivery of this Second Amendment, all
of the representations and warranties contained in each Loan Document to which
the Borrower is a party are true and correct in all material respects as though
made on and as of the Second Amendment Effective Date (unless made as of a
specific earlier date, in which case, was true as of such date); and (b) that
after giving effect to this Second Amendment and to the transactions
contemplated hereby, no Defaults exist under the Loan Documents or will exist
under the Loan Documents.
Section 5. Miscellaneous.
5.1 Confirmation. The provisions of the Credit Agreement (as amended by this
Second Amendment) shall remain in full force and effect in accordance with its
terms following the effectiveness of this Second Amendment.
5.2 Ratification and Affirmation of the Borrower. The Borrower hereby expressly
(i) acknowledges the terms of this Second Amendment, (ii) ratifies and affirms
its obligations under the Credit Agreement and the other Security Instruments to
which it is a party, (iii) acknowledges, renews and extends its continued
liability under the Credit Agreement and the other Security Instruments to which
it is a party remains in full force and effect with respect to the Indebtedness
as amended hereby.
5.3 RELEASE BY THE BORROWER. THE BORROWER HEREBY ACKNOWLEDGES AND AGREES THAT:
(I) IT HAS NO CLAIM OR CAUSE OF ACTION AGAINST THE ADMINISTRATIVE AGENT OR ANY
LENDER (OR ANY OF THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES OR
ATTORNEYS OF THE FOREGOING), (II) THE ADMINISTRATIVE AGENT OR ANY LENDER HAS
HERETOFORE PROPERLY PERFORMED AND SATISFIED IN A TIMELY MANNER ALL OF ITS
OBLIGATIONS TO THE BORROWER AND (III) IT HAS RECEIVED THE ADVICE OF LEGAL
COUNSEL WITH REGARD TO THE RELEASES CONTAINED HEREIN. THE ADMINISTRATIVE AGENT
AND THE LENDERS WISH (AND THE BORROWER AGREES) 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 SECOND
AMENDMENT AND OTHER GOOD AND VALUABLE CONSIDERATION, THE BORROWER VOLUNTARILY,
KNOWINGLY, INCONDITIONALLY AND IRREVOCABLY RELEASES, WAIVES AND FOREVER
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DISCHARGES THE ADMINISTRATIVE AGENT OR ANY LENDER, TOGETHER WITH ITS
PREDECESSORS, SUCCESSORS, ASSIGNS, SUSIDIARIES, AFFILIATES, AGENTS, EMPLOYEES
AND ATTORNEYS (COLLECTIVELY, THE "RELEASED PARTIES"), FROM: (X) ANY AND ALL
LIABILITIES, OBLIGATIONS, DUTIES, PROMISES OR INDEBTEDNESS OF ANY KIND OF THE
BORROWER, WHETHER KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR
UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING
IN WHOLE OR IN PART ON OR BEFORE THE DATE THE SECOND AMENDMENT EFFECTIVE DATE
AND (Y) ALL CLAIMS, OFFSETS, CAUSES OF ACTION, SUITS OR DEFENSES OF ANY KIND
WHATSOEVER (IF ANY), WHICH THE BORROWER MIGHT OTHERWISE HAVE AGAINST THE
RELEASED PARTIES OR ANY OF THEM, WHETHER KNOWN OR UNKNOWN, ANTICIPATED