CONSIDERATION, THE
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED AND CONFIRMED, EFFECTIVE UPON THE
DATE THIS AMENDMENT IS EXECUTED, EACH OF BORROWER AND NEWTEK, FOR ITSELF AND ITS
PREDECESSORS, SUCCESSORS AND ASSIGNS, HEREBY FOREVER RELEASE, WAIVE AND
DISCHARGE ALL CLAIMS, SUITS, JUDGMENTS, DAMAGES, DEMANDS, DEBTS, RIGHTS, CAUSES
OF ACTION AND OTHER LIABILITIES, WHETHER LIQUIDATED OR UNLIQUIDATED, FIXED OR
CONTINGENT, MATURED OR UNMATURED, KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, NOW
EXISTING, IN LAW OR EQUITY OR OTHERWISE THAT THE BORROWER OR NEWTEK MAY HAVE
AGAINST THE LENDER AND EACH OF THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
ADVISORS, PARTNERS, MEMBERS, SHAREHOLDERS AND AFFILIATES OF LENDER BASED ON OR
ARISING OUT OF THE LOAN AGREEMENT, THE ADMINISTRATION OR ENFORCEMENT THEREOF,
AND THE NEGOTIATION OF, AND THE PREPARATION OF ANY DEFINITIVE DOCUMENTATION IN
ANTICIPATION OF, THIS AMENDMENT, INCLUDING, WITHOUT LIMITATION, THE ENGAGEMENT
LETTER, DATED MARCH 22, 2004, AMONG THE BORROWER, NEWTEK AND LENDER.
THE RELEASE PROVIDED IN THIS SECTION 7 SHALL SURVIVE THE TERMINATION OF THE LOAN
AGREEMENT AND EACH LOAN DOCUMENT.
THE FAILURE OF THE BORROWER AND NEWTEK, FOR ITSELF AND ITS PREDECESSORS,
SUCCESSORS AND ASSIGNS, TO DELIVER THE REAFFIRMATION OF RELEASE LETTER ATTACHED
HERETO AS EXHIBIT A WITHIN ONE BUSINESS DAY OF APPROVAL OF THIS AMENDMENT AND
THE TRANSACTIONS CONTEMPLATED HEREBY BY THE SBA SHALL BE AN AUTOMATIC EVENT OF
DEFAULT.
Successors and Assigns. This Amendment shall be binding upon and inure to the
benefit of the Borrower, Newtek and the Lender, and their respective successors
and assigns.
65
Entire Agreement. This Amendment constitutes the entire agreement of the parties
hereto in connection with amending the Loan Agreement as provided herein and
supersedes all prior and contemporaneous agreements and understandings, both
written and oral, between the parties with respect to the subject matter of this
Amendment.
Severability. In case any one or more of the provisions contained in this
Amendment or the Loan Agreement should be invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby.
Counterparts. This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which shall be considered
one and the same instrument.
Facsimile Execution. Facsimile signatures on counterparts of this Amendment are
hereby authorized and shall be acknowledged as if such facsimile signatures were
an original execution, and this Amendment shall be deemed as executed when an
executed facsimile hereof is transmitted by a Party to any other Party.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Borrower and Lender have caused their names to be signed by
their respective officers thereunto duly authorized as of the date first above
written.
BORROWER:
NEWTEK SMALL BUSINESS FINANCE, INC.
By
/s/
Barry Sloane
Name:
Barry Sloane
Title:
Secretary
LENDER:
DB STRUCTURED PRODUCTS, INC.
By
/s/
Elizabeth A. Whalen
Name:
Elizabeth A. Whalen
Title:
Director
By
/s/
Christine Belbusti
Name:
Christine Belbusti
Title:
Vice President
CONSENT TO RELEASES, RATIFICATION OF