same Amendment. Receipt
by telecopy or electronic mail of any executed signature page to this Amendment
shall constitute effective delivery of such signature page. This Amendment to
the extent signed and delivered by means of a facsimile machine or other
electronic transmission including email transmission of a PDF image), shall be
treated in all manner and respects and for all purposes as an original agreement
or amendment and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person. No party hereto
shall raise the use of a facsimile machine or other electronic transmission to
deliver a signature or the fact that any signature or agreement or amendment was
transmitted or communicated through the use of a facsimile machine or other
electronic transmission as a defense to the formation or enforceability of a
contract and each such party forever waives any such defense.
5.06
Effect of Amendment. No consent or amendment, express or implied, by
Agent to or for any breach of or deviation from any covenant or condition by any
Loan Party shall be deemed a consent to or waiver or amendment of any other
breach of the same or any other covenant, condition or duty.
5.07
Headings. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.08
Applicable Law. THE VALIDITY OF THIS AMENDMENT, THE CONSTRUCTION,
INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, THE RIGHTS OF THE PARTIES
HERETO AND THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER
OR RELATED HERETO OR THERETO, AND ANY CLAIMS, CONTROVERSIES OR DISPUTES ARISING
HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO SHALL BE DETERMINED UNDER,
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.
5.09
Final Agreement. THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS,
EACH AS MODIFIED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE
CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS MODIFIED HEREBY, MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO
MODIFICATION, RESCISSION, WAIVER, RELEASE OR AGREEMENT OF ANY PROVISION OF THIS
AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY THE BORROWER
AND AGENT.
5.10
Release. AS A MATERIAL PART OF THE CONSIDERATION FOR AGENT AND LENDERS
ENTERING INTO THIS AMENDMENT, ON THE DATE HEREOF EACH LOAN PARTY, ON BEHALF OF
ITSELF AND ITS SUCCESSORS (INCLUDING, WITHOUT LIMITATION, ANY TRUSTEES ACTING ON
BEHALF OF SUCH LOAN PARTY AND ANY
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DEBTOR-IN-POSSESSION WITH RESPECT TO SUCH LOAN PARTY), ASSIGNS, SUBSIDIARIES AND
AFFILIATES HEREBY RELEASES AND FOREVER DISCHARGES AGENT AND EACH LENDER AND
THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, AFFILIATES,
SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS FROM ANY AND ALL LIABILITIES,
OBLIGATIONS, ACTIONS, CONTRACTS, CLAIMS, CAUSES OF ACTION, DAMAGES, DEMANDS,
COSTS AND EXPENSES