requested.
5.
WAIVER OF SPECIAL DAMAGES; RELEASE BY THE BORROWER AND THE
GUARANTORS. THE BORROWER AND THE GUARANTORS WAIVE, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT THEY MAY HAVE TO CLAIM OR RECOVER FROM THE AGENT
BANK OR THE BANKS IN ANY LEGAL ACTION OR PROCEEDING ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES.
AS A MATERIAL INDUCEMENT TO THE AGENT BANK
AND THE BANKS TO ENTER INTO THIS AMENDMENT, WHICH THE BORROWER AND THE
GUARANTORS HAVE DETERMINED TO BE TO THEIR DIRECT ADVANTAGE AND BENEFIT, THE
BORROWER AND THE GUARANTORS HEREBY RELEASE AND DISCHARGE THE AGENT BANK, THE
BANKS AND THEIR PAST AND PRESENT EMPLOYEES, AGENTS, ATTORNEYS, OFFICERS AND
DIRECTORS AND ALL AFFILIATES THEREFROM (COLLECTIVELY, THE "BANK RELEASEES") FROM
ANY AND ALL CLAIMS, LIABILITIES, DEMANDS, ACTIONS, AND CAUSES OF ACTIONS OF ANY
KIND WHATSOEVER, WHETHER KNOWN OR UNKNOWN, CONTINGENT OR NON-CONTINGENT,
LIQUIDATED OR UNLIQUIDATED, WHICH IN ANY WAY RELATE TO ANY EVENT, CIRCUMSTANCE,
ACTION, OR FAILURE TO ACT FROM THE BEGINNING OF TIME TO THE DATE THIS AMENDMENT
IS ACTUALLY DELIVERED RELATED TO THE LOAN DOCUMENTS, THIS AMENDMENT, ANY COURSE
OF DEALING OR OTHER BUSINESS RELATIONSHIP (WHETHER OR NOT RELATED TO THE LOAN
DOCUMENTS) AND/OR ANY OTHER CREDIT OR OTHER BUSINESS RELATIONSHIP AMONG THE
PARTIES (OR ANY ONE OR MORE OF THEM) TO THIS AMENDMENT.
THE BORROWER AND THE
GUARANTORS HEREBY ACKNOWLEDGE AND AGREE THAT THE BANK RELEASEES AT ALL TIMES
HAVE ACTED IN GOOD FAITH AND IN COMPLIANCE WITH ALL OBLIGATIONS THAT MIGHT HAVE
BEEN IMPOSED UNDER ANY AGREEMENTS BETWEEN OR AMONG, OR OTHER BUSINESS
RELATIONSHIP BETWEEN OR AMONG, THE BANK RELEASEES, THE BORROWER AND THE
GUARANTORS.
THE BORROWER AND THE GUARANTORS FURTHER ACKNOWLEDGE AND AGREE THAT
THE BANK RELEASEES HAVE TAKEN NO ACTION, AND HAVE NOT FAILED TO TAKE ANY ACTION,
WHICH WOULD IMPAIR ANY COLLATERAL SECURING ANY OBLIGATIONS OF ANY OF THEM TO THE
BANK RELEASEES OR ANY RIGHTS OR ACTIONS THAT THE BANK RELEASEES MIGHT HAVE
AGAINST ANY OF THE BORROWER OR THE GUARANTORS. THIS RELEASE IS NON-CONTINGENT
AND ABSOLUTE.
16
6.
REPRESENTATIONS, WARRANTIES, AND COVENANTS OF THE BORROWER.
To
induce the Agent Bank and the Banks to enter into this Amendment, the Borrower
represents and warrants to Agent Bank and the Banks as follows:
(a)
The Borrower has full power, authority, and capacity to enter into
this Amendment, and this Amendment constitutes the legal, valid and binding
obligation of the Borrower, enforceable against it in accordance with its
respective terms.
(b)
No uncured Event of Default under the Revolving Credit Notes or any
of the other Loan Documents has occurred which continues unwaived by the Agent
Bank, and no Potential Default exists as of the date hereof.
(c)
The Person executing this Amendment on behalf of the Borrower is
duly authorized to do so.
(d)
The representations and warranties made by the Borrower in any of
the Loan Documents are hereby remade and restated as of the date hereof.
(e)
Except as previously disclosed to the Agent Bank or disclosed in