TO THE
AMENDMENT OF THE FIRST LIEN FORBEARANCE AGREEMENT TO PERMIT THE BORROWERS' TO
BORROW UNDER THE FIRST LIEN REVOLVING CREDIT FACILITY AND (II) ACKNOWLEDGE AND
AGREE THAT ALL PROVISIONS OF THE FORBEARANCE AGREEMENT REMAIN IN FULL FORCE AND
EFFECT.
ARTICLE II
CONDITIONS TO EFFECTIVENESS
SECTION 2.1.
CONDITIONS PRECEDENT.
THIS AMENDMENT SHALL
BECOME EFFECTIVE AS OF THE DATE FIRST WRITTEN ABOVE UPON RECEIPT BY THE SECOND
LIEN ADMINISTRATIVE AGENT OF DULY EXECUTED COUNTERPARTS OF THIS AMENDMENT FROM
EACH OF THE BORROWERS, THE GUARANTORS AND WRITTEN CONFIRMATION OF AGREEMENT TO
THE TERMS HEREOF BY THE REQUIRED LENDERS.
ARTICLE III
MISCELLANEOUS
SECTION 3.1.
REPRESENTATIONS AND WARRANTIES.
EACH LOAN PARTY
HEREBY REPRESENTS AND WARRANTS TO THE SECOND LIEN ADMINISTRATIVE AGENT AND THE
SECOND LIEN LENDERS THAT (A) EACH LOAN PARTY HAS THE LEGAL POWER AND AUTHORITY
TO EXECUTE AND DELIVER THIS CONSENT; (B) THE OFFICERS OF EACH LOAN PARTY
EXECUTING THIS CONSENT HAVE BEEN DULY AUTHORIZED TO EXECUTE AND DELIVER THE SAME
AND BIND EACH LOAN PARTY WITH RESPECT TO THE PROVISIONS HEREOF; (C) THE
EXECUTION AND DELIVERY HEREOF BY EACH LOAN PARTY AND THE PERFORMANCE AND
OBSERVANCE BY EACH LOAN PARTY OF THE PROVISIONS HEREOF DO NOT VIOLATE OR
CONFLICT WITH ANY ORGANIZATIONAL DOCUMENT OF ANY LOAN PARTY OR ANY LAW
APPLICABLE TO ANY LOAN PARTY OR RESULT IN A BREACH OF ANY PROVISION OF OR
CONSTITUTE A DEFAULT UNDER ANY OTHER AGREEMENT, INSTRUMENT OR DOCUMENT BINDING
UPON OR ENFORCEABLE AGAINST ANY LOAN PARTY; (D) EXCEPT WITH RESPECT TO THE
EXISTING EVENTS OF DEFAULT, NO DEFAULT OR EVENT OF DEFAULT EXISTS UNDER THE
SECOND LIEN CREDIT AGREEMENT, NOR WILL ANY OCCUR IMMEDIATELY AFTER THE EXECUTION
AND DELIVERY OF THIS CONSENT OR BY THE PERFORMANCE OR OBSERVANCE OF ANY
PROVISION HEREOF; (E) NO LOAN PARTY IS AWARE OF ANY CLAIM OR OFFSET AGAINST, OR
DEFENSE OR COUNTERCLAIM TO, ANY LOAN PARTY'S OBLIGATIONS OR LIABILITIES UNDER
THE SECOND LIEN CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT; (F) THIS CONSENT
AND EACH DOCUMENT EXECUTED BY EACH LOAN PARTY IN CONNECTION HEREWITH CONSTITUTE
VALID AND BINDING OBLIGATIONS OF THE APPLICABLE LOAN PARTY IN EVERY RESPECT,
ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS; AND (G) NO LOAN PARTY HAS RECEIVED A
NOTICE OF DEFAULT OF ANY KIND FROM ANY MATERIAL ACCOUNT DEBTOR OR ANY
COUNTERPARTY TO A MATERIAL CONTRACT AND NO MATERIAL ACCOUNT DEBTOR OR
COUNTERPARTY TO A MATERIAL CONTRACT HAS
2
ASSERTED ANY RIGHT OF SET-OFF, DEDUCTION OR COUNTERCLAIM WITH RESPECT TO ANY
ACCOUNT OR SUCH MATERIAL CONTRACT, RESPECTIVELY.
SECTION 3.2.
RELEASE.
EACH LOAN PARTY HEREBY WAIVES AND
RELEASES THE SECOND LIEN ADMINISTRATIVE AGENT AND THE SECOND LIEN LENDERS AND
THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, AFFILIATES
AND SUBSIDIARIES (EACH A "RELEASEE") FROM ANY AND ALL CLAIMS, OFFSETS, DEFENSES
AND COUNTERCLAIMS, KNOWN AND UNKNOWN, THAT ANY LOAN PARTY MAY HAVE AS OF THE
DATE OF THIS CONSENT BASED UPON, RELATING TO, OR ARISING OUT OF THE OBLIGATIONS
AND RELATED TRANSACTIONS IN ANY WAY.
EACH LOAN PARTY INTENDS THE FOREGOING
RELEASE TO COVER, ENCOMPASS, RELEASE AND