AND, IN EACH CASE, ARISING FROM THE LIABILITIES, THE
EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE LOAN AGREEMENT OR OTHER LOAN
DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS FIFTH AMENDMENT.
BORROWER
HEREBY COVENANTS AND AGREES NEVER TO INSTITUTE ANY ACTION OR SUIT AT LAW OR IN
EQUITY, NOR INSTITUTE, PROSECUTE, OR IN ANY WAY AID IN THE INSTITUTION OR
PROSECUTION OF ANY CLAIM, ACTION OR CAUSE OF ACTION, RIGHTS TO RECOVER DEBTS OR
DEMANDS OF ANY NATURE AGAINST CONTINUING LENDERS, AGENT, THEIR RESPECTIVE
AFFILIATES AND PARTICIPANTS, OR THEIR RESPECTIVE SUCCESSORS, AGENTS, OFFICERS,
DIRECTORS, EMPLOYEES, AND PERSONAL AND LEGAL REPRESENTATIVES ARISING ON OR
BEFORE THE DATE HEREOF OUT OF OR RELATED TO CONTINUING LENDERS' OR AGENT'S
ACTIONS, OMISSIONS, STATEMENTS, REQUESTS OR DEMANDS IN ADMINISTERING, ENFORCING,
MONITORING, COLLECTING OR ATTEMPTING TO COLLECT THE OBLIGATIONS OF THE BORROWER
TO CONTINUING LENDERS AND AGENT, WHICH OBLIGATIONS ARE EVIDENCED BY THE LOAN
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Fifth Amendment to
Amended and Restated Loan and Security Agreement as of the day and year first
above written.
HERCULES FUNDING II LLC,
a Delaware limited liability company, as Borrower
By:
Name:
Title:
WELLS FARGO CAPITAL FINANCE, LLC,
formerly known as Wells Fargo Foothill, LLC,
a Delaware limited liability company,
as Agent and a Lender
By:
Name:
Title:
State Bank and Trust Company, as successor by merger to AloStar Bank of
Commerce,
as a Lender
By:
Name:
Title:
TIAA, FSB as successor in interest to certain assets of EverBank Commercial
Finance, Inc.,
as a Lender
By:
Name:
Title:
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Revised Schedule C-1
Commitments
(as of the Fifth Amendment Closing Date)
Lender
Commitment
Wells Fargo Capital Finance, LLC
$75,000,000
Total for All Lenders
$75,000,000
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