NOT PROHIBITED BY
APPLICABLE LAW, EACH OF THE BORROWERS AND THE LENDER IRREVOCABLY WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS WAIVER AGREEMENT, THE CREDIT AGREEMENT, THE
OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY OR ANY LENDER-RELATED PERSON OR PARTICIPANT, WHETHER
WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. WITHOUT LIMITING THE
APPLICABILITY OF ANY OTHER PROVISION OF THE CREDIT AGREEMENT, THE TERMS OF
SECTION 12.3 OF THE CREDIT AGREEMENT SHALL APPLY TO THIS WAIVER AGREEMENT.
SECTION 6.10.
RELEASE. THE BORROWERS EACH HEREBY REPRESENT AND WARRANT
THAT AS OF THE DATE OF THIS WAIVER AGREEMENT THERE ARE NO CLAIMS OR OFFSETS
AGAINST OR DEFENSES OR COUNTERCLAIMS TO THE BORROWERS' OBLIGATIONS UNDER THE
CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT, INCLUDING THIS WAIVER AGREEMENT.
THE BORROWERS WAIVE AND RELEASE ANY AND ALL SUCH CLAIMS, OFFSETS, DEFENSES OR
COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO THE DATE OF THIS
WAIVER AGREEMENT.
THE BORROWERS INTEND THE ABOVE RELEASE TO COVER, ENCOMPASS, RELEASE, AND
EXTINGUISH, INTER ALIA, ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION THAT MIGHT
OTHERWISE BE RESERVED BY THE CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES
AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE 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."
THE BORROWERS ACKNOWLEDGE THAT THEY MAY HEREAFTER DISCOVER FACTS DIFFERENT FROM
OR IN ADDITION TO THOSE NOW KNOWN OR BELIEVED TO BE TRUE WITH RESPECT TO SUCH
CLAIMS, DEMANDS, OR CAUSES OF ACTION, AND AGREE THAT THIS WAIVER AGREEMENT AND
THE ABOVE RELEASE ARE AND WILL REMAIN EFFECTIVE IN ALL RESPECTS NOTWITHSTANDING
ANY SUCH DIFFERENCES OR ADDITIONAL FACTS.
[Signature Pages Follow]
4
IN WITNESS WHEREOF, the parties have executed and delivered this Waiver
Agreement as of the day and year first above written.
"BORROWERS":
MEADE INSTRUMENTS CORP.
By:
/s/ Paul E. Ross
Name:
Paul E. Ross
Title:
Chief Financial Officer
SIMMONS OUTDOOR CORP.
By:
/s/ Paul E. Ross
Name:
Paul E. Ross
Title:
Chief Financial Officer
CORONADO INSTRUMENTS, INC.
By:
/s/ Paul E. Ross
Name:
Paul E. Ross
Title:
Chief Financial Officer
"LENDER":
BANK OF AMERICA, N.A.
By:
/s/ Robert M. Dalton
Name:
Robert M. Dalton
Title:
Vice President
CONSENTS AND REAFFIRMATIONS
Each of MEADE INSTRUMENTS EUROPE CORP., a California corporation, and MEADE
INSTRUMENTS HOLDINGS CORP., a California corporation, hereby acknowledges the
execution of, and consents to, the terms and conditions of that Limited Waiver
Agreement dated as of October
, 2007, among MEADE INSTRUMENTS CORP.,
SIMMONS OUTDOOR CORP., CORONADO INSTRUMENTS, INC. and BANK OF AMERICA, N.A. (the
"Creditor"), and reaffirms its obligations under (a) that certain Continuing
Guaranty (the "Guaranty")