THIS AMENDMENT AND EACH AND EVERY PROVISION HEREOF:
(A)
AGENT SHALL HAVE RECEIVED THIS AMENDMENT, DULY EXECUTED BY THE
PARTIES HERETO, AND THE SAME SHALL BE IN FULL FORCE AND EFFECT.
(B)
AGENT SHALL HAVE RECEIVED A REAFFIRMATION AND CONSENT
SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT A, DULY EXECUTED AND
DELIVERED BY EACH GUARANTOR.
(C)
THE REPRESENTATIONS AND WARRANTIES HEREIN AND IN THE LOAN
AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS ON AND AS OF THE DATE HEREOF, AS THOUGH MADE ON SUCH DATE (EXCEPT TO
THE EXTENT THAT SUCH REPRESENTATIONS AND WARRANTIES RELATE SOLELY TO AN EARLIER
DATE).
(D)
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING ON THE DATE HEREOF, NOR SHALL RESULT FROM THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREIN.
(E)
NO INJUNCTION, WRIT, RESTRAINING ORDER, OR OTHER ORDER OF ANY
NATURE PROHIBITING, DIRECTLY OR INDIRECTLY, THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREIN SHALL HAVE BEEN ISSUED AND REMAIN IN FORCE AND EFFECT BY ANY
GOVERNMENTAL AUTHORITY AGAINST ANY BORROWER, ANY GUARANTOR, AGENT, OR ANY
LENDER.
4.
RELEASE.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH
BORROWER AND EACH GUARANTOR HEREBY WAIVES, RELEASES, REMISES AND FOREVER
DISCHARGES EACH MEMBER OF THE LENDER GROUP, EACH OF THEIR RESPECTIVE AFFILIATES,
AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS
(COLLECTIVELY, THE "RELEASED PARTIES"), FROM ANY AND ALL CLAIMS, DEMANDS,
OBLIGATIONS, LIABILITIES, CAUSES OF ACTION, DAMAGES, LOSSES, COSTS AND EXPENSES
OF ANY KIND OR CHARACTER, KNOWN OR UNKNOWN, PAST OR PRESENT, LIQUIDATED OR
UNLIQUIDATED, SUSPECTED OR UNSUSPECTED, WHICH ANY BORROWER OR ANY GUARANTOR EVER
HAD, NOW HAS OR MIGHT HEREAFTER HAVE AGAINST ANY SUCH RELEASED PARTY WHICH
RELATES, DIRECTLY OR INDIRECTLY, TO THE LOAN AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR TO ANY ACTS OR OMISSIONS OF ANY SUCH RELEASE WITH RESPECT TO THE
LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR TO THE LENDER-BORROWER
RELATIONSHIP EVIDENCED
2
BY THE LOAN DOCUMENTS.
AS TO EACH AND EVERY CLAIM RELEASED HEREUNDER, EACH
BORROWER AND EACH GUARANTOR HEREBY REPRESENTS THAT IT HAS RECEIVED THE ADVICE OF
LEGAL COUNSEL WITH REGARD TO THE RELEASES CONTAINED HEREIN, AND HAVING BEEN SO
ADVISED, EACH BORROWER SPECIFICALLY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE BENEFIT OF THE PROVISIONS OF SECTION 1542 OF THE CIVIL CODE
OF CALIFORNIA WHICH PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
As to each and every claim released hereunder, each Borrower and each Guarantor
also waives the benefit of each other similar provision of applicable federal or
state law, if any, pertaining to general releases after having been advised by
its legal counsel with respect thereto.
5.
REPRESENTATION AND WARRANTY.
EACH BORROWER REPRESENTS AND
WARRANTS TO THE LENDER GROUP THAT THE EXECUTION, DELIVERY, AND PERFORMANCE OF