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).
(E)
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.
(F)
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 BY ANY GOVERNMENTAL AUTHORITY AGAINST BORROWER, ANY GUARANTOR, OR LENDER.
5.
CONDITIONS SUBSEQUENT.
THE OBLIGATION OF LENDER TO CONTINUE TO
MAKE ADVANCES (OR OTHERWISE EXTEND CREDIT HEREUNDER) IS SUBJECT TO THE
FULFILLMENT, ON OR BEFORE THE DATE APPLICABLE THERETO, OF FOLLOWING CONDITION
SUBSEQUENT (THE FAILURE BY BORROWER TO SO PERFORM OR CAUSE TO BE PERFORMED
CONSTITUTING AN EVENT OF DEFAULT).
WITHIN 30 DAYS OF THE DATE HEREOF, AGENT
SHALL HAVE RECEIVED, WITH RESPECT TO ALL BANK ACCOUNTS OF BORROWER OR ANY
GUARANTOR LISTED ON SCHEDULE 5.20, AS AMENDED HEREBY, THAT (A) ARE CARRYING A
BALANCE OF $5,000 OR MORE AS OF THE DATE HEREOF, OR (B) REGULARLY CARRY A
BALANCE OF $5,000 OR MORE, FULLY EXECUTED CONTROL AGREEMENTS IN FORM AND
SUBSTANCE SATISFACTORY TO LENDER.
11
6.
Release.
Borrower hereby waives,
releases, remises and forever discharges Lender, each of its Affiliates, and
each of its officers, directors, employees, and agents (collectively, the
"Releasees"), 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 Borrower ever had, now has or might hereafter have against
any such Releasee which relates, directly or indirectly, to the Loan Agreement
or any other Loan Document, or to any acts or omissions of any such Releasee
with respect to the Loan Agreement or any other Loan Document, or to the
lender-borrower relationship evidenced by the Loan Documents.
As to each and
every claim released hereunder, Borrower hereby represents that it has received
the advice of legal counsel with regard to the releases contained herein, and
having been so advised, Borrower specifically waives 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 OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR."
As to each and every claim released hereunder, Borrower 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.
7.
REPRESENTATIONS AND WARRANTIES.
BORROWER REPRESENTS AND
WARRANTS TO LENDER THAT (A) THE EXECUTION, DELIVERY, AND PERFORMANCE OF THIS
AMENDMENT AND