THIS THIRD AMENDMENT SHALL BE
DEEMED OR OTHERWISE CONSTRUED AS A WAIVER BY THE BANK OF ANY OF ITS RIGHTS AND
REMEDIES PURSUANT TO THE EXISTING LOAN DOCUMENTS, APPLICABLE LAW OR OTHERWISE.
4.
FEES.
BORROWER SHALL PAY TO BANK A
MODIFICATION FEE EQUAL TO TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00), WHICH
FEE SHALL BE DUE ON THE DATE HEREOF AND SHALL BE DEEMED FULLY EARNED AS OF THE
DATE HEREOF.
THE BORROWER SHALL ALSO REIMBURSE BANK FOR ALL LEGAL FEES AND
EXPENSES INCURRED IN CONNECTION WITH THIS AMENDMENT TO
THE EXISTING LOAN DOCUMENTS.
5.
RATIFICATION OF INTELLECTUAL PROPERTY
SECURITY AGREEMENT.
BORROWER HEREBY RATIFIES, CONFIRMS AND REAFFIRMS, ALL AND
SINGULAR, THE TERMS AND CONDITIONS OF A CERTAIN INTELLECTUAL PROPERTY SECURITY
AGREEMENT DATED AS OF DECEMBER 19, 2002 BETWEEN BORROWER AND BANK, AND
ACKNOWLEDGES, CONFIRMS AND AGREES THAT SAID INTELLECTUAL PROPERTY SECURITY
AGREEMENT CONTAINS AN ACCURATE AND COMPLETE LISTING OF ALL INTELLECTUAL PROPERTY
COLLATERAL AS DEFINED IN SAID INTELLECTUAL PROPERTY SECURITY AGREEMENT, SHALL
REMAIN IN FULL FORCE AND EFFECT.
6.
CONSISTENT CHANGES.
THE EXISTING LOAN
DOCUMENTS ARE HEREBY AMENDED WHEREVER NECESSARY TO REFLECT THE CHANGES DESCRIBED
ABOVE.
7.
RATIFICATION OF LOAN DOCUMENTS.
BORROWER HEREBY RATIFIES, CONFIRMS, AND REAFFIRMS ALL TERMS AND CONDITIONS OF
ALL SECURITY OR OTHER COLLATERAL GRANTED TO THE BANK, AND CONFIRMS THAT THE
INDEBTEDNESS SECURED THEREBY INCLUDES, WITHOUT LIMITATION, THE OBLIGATIONS.
8.
NO DEFENSES OF BORROWER.
BORROWER
HEREBY ACKNOWLEDGES AND AGREES THAT BORROWER HAS NO OFFSETS, DEFENSES, CLAIMS,
OR COUNTERCLAIMS AGAINST BANK WITH RESPECT TO THE OBLIGATIONS, OR OTHERWISE, AND
THAT IF BORROWER NOW HAS, OR EVER DID HAVE, ANY OFFSETS, DEFENSES, CLAIMS, OR
COUNTERCLAIMS AGAINST BANK, WHETHER KNOWN OR UNKNOWN, AT LAW OR IN EQUITY, ALL
OF THEM ARE HEREBY EXPRESSLY WAIVED AND BORROWER HEREBY RELEASES BANK FROM ANY
LIABILITY THEREUNDER.
9.
CONTINUING VALIDITY.
BORROWER
UNDERSTANDS AND AGREES THAT IN MODIFYING THE EXISTING OBLIGATIONS, BANK IS
RELYING UPON BORROWER'S REPRESENTATIONS, WARRANTIES, AND AGREEMENTS, AS SET
FORTH IN THE EXISTING LOAN DOCUMENTS.
EXCEPT AS EXPRESSLY MODIFIED PURSUANT TO
THIS THIRD AMENDMENT, THE TERMS OF THE EXISTING LOAN DOCUMENTS REMAIN UNCHANGED
AND IN FULL FORCE AND EFFECT.
BANK'S AGREEMENT TO MODIFICATIONS TO THE EXISTING
OBLIGATIONS PURSUANT TO THIS THIRD AMENDMENT IN NO WAY SHALL OBLIGATE BANK TO
MAKE ANY FUTURE MODIFICATIONS TO THE OBLIGATIONS.
NOTHING IN THIS THIRD
AMENDMENT SHALL CONSTITUTE A SATISFACTION OF THE OBLIGATIONS.
IT IS THE
INTENTION OF BANK AND BORROWER TO RETAIN AS LIABLE PARTIES ALL MAKERS OF
EXISTING LOAN DOCUMENTS, UNLESS THE PARTY IS EXPRESSLY RELEASED BY BANK IN
WRITING.
NO MAKER WILL BE RELEASED BY VIRTUE OF THIS THIRD AMENDMENT.
10.
COUNTERSIGNATURE.
THIS THIRD AMENDMENT
SHALL BECOME EFFECTIVE ONLY WHEN IT SHALL HAVE BEEN EXECUTED BY BORROWER AND
BANK (PROVIDED, HOWEVER, IN NO EVENT SHALL THIS THIRD AMENDMENT BECOME EFFECTIVE
UNTIL SIGNED BY AN OFFICER OF BANK IN CALIFORNIA).
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2
This Third Amendment is executed as a sealed instrument under the laws of the
Commonwealth of Massachusetts as of the date first written