Party and
deposited therein (unless authority is provided to Agent in any Other Agreement
governing such Lock Box or deposit account).
D.
Application of Payments.
Subsection
8(c) of the Loan Agreement is hereby amended to add the following at the end of
such subsection:
"Notwithstanding the foregoing, on the first day of the month during which
Systems Day One occurs, for purposes of determining the amount of Loans
available for borrowing purposes, the ledger balance in the main Dominion
Account as of the end of a Business Day shall be applied to the Liabilities at
the beginning of the next Business Day. However, solely for purposes of
computing interest hereunder, and in addition to Lender's standard fees and
charges relating to the Dominion Account, any application by Lender of such
balance to the Liabilities shall be deemed to be made one (1) Business
Day(s) after application to the Liabilities as set forth in the preceding
sentence.
If, as a result of such application, a credit balance exists, the
balance shall not accrue interest in favor of such Loan Party and shall be made
available to Loan Party as long as no Event of Default exists.
Each Loan Party
irrevocably waives the right to direct the application of any payments or
Collateral proceeds, and agrees that Lender shall have the continuing,
4
exclusive right to apply and reapply same against the Liabilities, in such
manner as Lender deems advisable, notwithstanding any entry by Lender in its
records."
3.
CROSS DEFAULT AND CROSS
COLLATERALIZATION.
A DEFAULT IN THE PAYMENT OR PERFORMANCE OF BORROWER'S
OBLIGATIONS UNDER THIS AMENDMENT WILL CONSTITUTE AN EVENT OF DEFAULT UNDER THE
LOAN AGREEMENT AND IN SUCH EVENT LENDER WILL BE ENTITLED TO EXERCISE ANY AND ALL
REMEDIES AVAILABLE HEREUNDER.
BORROWER AND LENDER FURTHER AGREE THAT THE OTHER
AGREEMENTS SECURING THE LOAN AGREEMENT ARE HEREBY MODIFIED SO THAT EACH OTHER
AGREEMENT WILL HEREAFTER SECURE THE LOAN AGREEMENT.
4.
RATIFICATION.
THE PARTIES HERETO
RATIFY AND REAFFIRM THAT ALL TERMS, CONDITIONS AND PROVISIONS OF THE LOAN
AGREEMENT, AND THE OTHER AGREEMENTS REMAIN IN FULL FORCE AND EFFECT EXCEPT TO
THE EXTENT EXPRESSLY MODIFIED BY THE TERMS OF THIS AMENDMENT.
5.
RELEASES.
AS A MATERIAL PART OF THE
CONSIDERATION FOR LENDER ENTERING INTO THIS AMENDMENT AND IN ORDER TO INDUCE
LENDER TO FURTHER MODIFY THE LOAN AGREEMENT AND OTHER AGREEMENTS AND TO EXTEND
CREDIT TO BORROWER, BORROWER HEREBY RELEASES AND FOREVER DISCHARGES LENDER AND
LENDER'S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, AFFILIATES,
SUBSIDIARIES, SUCCESSORS AND ASSIGNS FROM ANY AND ALL LIABILITIES, OBLIGATIONS,
ACTIONS, CONTRACTS, CLAIMS, CAUSES OF ACTION, DAMAGES, DEMANDS, COSTS AND
EXPENSES WHATSOEVER (COLLECTIVELY "CLAIMS"), OF EVERY KIND AND NATURE, HOWEVER
EVIDENCED OR CREATED, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO OR ON THE DATE
OF THIS AMENDMENT INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS INVOLVING THE
EXTENSION OF CREDIT UNDER OR ADMINISTRATION OF THE LOAN AGREEMENT OR OTHER
AGREEMENTS, AS EACH MAY BE AMENDED, THE INDEBTEDNESS INCURRED BY BORROWER OR ANY
OTHER TRANSACTIONS EVIDENCED BY THIS AMENDMENT OR OTHER AGREEMENTS.