AND
WARRANTIES CONTAINED IN THE LOAN AGREEMENT WERE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS WHEN MADE AND, EXCEPT TO THE EXTENT THAT (A) A PARTICULAR
REPRESENTATION OR WARRANTY BY ITS TERMS EXPRESSLY APPLIES ONLY TO AN EARLIER
DATE, OR (B) BORROWER HAS PREVIOUSLY ADVISED LENDER IN WRITING AS CONTEMPLATED
UNDER THE LOAN AGREEMENT, ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF
THE DATE HEREOF.
BORROWER HEREBY FURTHER REPRESENTS AND WARRANTS THAT NO EVENT
HAS OCCURRED AND IS CONTINUING, OR WOULD RESULT FROM THE TRANSACTIONS
CONTEMPLATED UNDER THIS FOURTH AMENDMENT, THAT CONSTITUTES OR WOULD CONSTITUTE A
DEFAULT OR AN EVENT OF DEFAULT.
5.
BORROWER'S WAIVER OF CLAIMS ARISING PRIOR
TO EXECUTION DATE OF AMENDMENT.
IN CONSIDERATION OF LENDER ENTERING INTO THIS
FOURTH AMENDMENT, BORROWER, ON BEHALF OF ITSELF, ITS SUBSIDIARIES AND ITS OTHER
AFFILIATES, HEREBY WAIVES, RELEASES, REMISES AND FOREVER DISCHARGES LENDER AND
EACH OTHER INDEMNIFIED PERSON FROM ANY AND ALL CLAIMS, SUITS, ACTIONS,
INVESTIGATIONS, PROCEEDINGS OR DEMANDS, WHETHER BASED IN CONTRACT, TORT, IMPLIED
OR EXPRESS WARRANTY, STRICT LIABILITY, CRIMINAL OR CIVIL STATUTE OR COMMON LAW
OF ANY KIND OR CHARACTER, KNOWN OR UNKNOWN (COLLECTIVELY, THE "CLAIMS"), WHICH
BORROWER EVER HAD, NOW HAS OR MIGHT HEREAFTER HAVE AGAINST LENDER OR ANY OTHER
INDEMNIFIED PERSON BASED ON ANY ACTS OR OMISSIONS OF LENDER OR ANY OTHER
INDEMNIFIED PERSON ON OR PRIOR TO THE EXECUTION DATE.
BORROWER HEREBY WAIVES
AND RELINQUISHES FOR ITSELF, ITS SUBSIDIARIES AND ITS OTHER AFFILIATES ALL OF
THE RIGHTS AND BENEFITS EACH SUCH PERSON
HAS, OR MAY HAVE, WITH RESPECT TO THE CLAIMS RELEASED UNDER SECTION 1542 OF THE
CALIFORNIA CIVIL CODE OR ANY OTHER SIMILAR STATUTE.
SECTION 1542 OF THE
CALIFORNIA CIVIL CODE STATES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE 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.
Borrower has been advised by counsel with respect to the release contained in
this Section 5.
6.
MISCELLANEOUS.
6.1
HEADINGS.
THE VARIOUS HEADINGS OF THIS
FOURTH AMENDMENT ARE INSERTED FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT
AFFECT THE MEANING OR INTERPRETATION OF THIS FOURTH AMENDMENT OR ANY PROVISIONS
HEREOF.
6.2
COUNTERPARTS.
THIS FOURTH AMENDMENT MAY
BE EXECUTED BY THE PARTIES HERETO IN SEVERAL COUNTERPARTS, EACH OF WHICH SHALL
BE DEEMED TO BE AN ORIGINAL AND ALL OF WHICH TOGETHER SHALL BE DEEMED TO BE ONE
AND THE SAME INSTRUMENT.
DELIVERY OF AN EXECUTED COUNTERPART OF A SIGNATURE
PAGE TO THIS FOURTH AMENDMENT BY FACSIMILE OR ELECTRONIC TRANSMISSION SHALL BE
EFFECTIVE AS DELIVERY OF A MANUALLY EXECUTED COUNTERPART THEREOF.
6.3
INTERPRETATION.
NO PROVISION OF THIS
FOURTH AMENDMENT SHALL BE CONSTRUED AGAINST OR INTERPRETED TO THE DISADVANTAGE
OF ANY PARTY HERETO BY ANY COURT OR OTHER GOVERNMENTAL OR JUDICIAL AUTHORITY BY
REASON OF SUCH PARTY'S HAVING OR BEING DEEMED TO HAVE STRUCTURED, DRAFTED OR
DICTATED SUCH PROVISION.
6.4
COMPLETE AGREEMENT.
THIS FOURTH AMENDMENT
CONSTITUTES THE COMPLETE AGREEMENT