Lender has advised Borrower that it is granting such extension to Borrower
reluctantly and with reliance upon Borrower having advised Lender that Borrower
will be successful in its efforts to obtain take out financing that will enable
Borrower to pay all of Borrower's indebtedness to Lender under the Loan
Agreement in full in cash on or before September 30, 2005, (iii) Lender has no
current intention of consenting to any further extensions of the Termination
Date beyond September 30, 2005, and (iv) that Borrower shall conduct its
business and affairs with the knowledge that the Borrower cannot anticipate
further extensions of the Termination Date.
7. Governing Law, Waiver of Trial by Jury and Certain Other Rights. THIS
AMENDMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE
PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401
AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). EACH PARTY
HEREBY KNOWINGLY, VOLUNTARY AND INTENTIONALLY, WAIVES (TO THE EXTENT PERMITTED
BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE
ARISING UNDER OR RELATING TO THIS AMENDMENT AND AGREES THAT ANY SUCH DISPUTE
SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY. IN CONNECTION WITH ANY
ISSUE OR CONTROVERSY ARISING IN RELATION TO THIS AMENDMENT, THE PARTIES CONSENT
TO THE JURISDICTION OF THE STATE COURTS OF THE STATE OF NEW YORK AND THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND FURTHER CONSENT
THAT ANY PROCESS OR NOTICE OR OTHER APPLICATION TO ANY COURT OR ANY JUDGMENT
THEREOF MAY BE SERVED WITHIN OR WITHOUT THE STATE OF NEW YORK, BY CERTIFIED MAIL
OR PERSONAL SERVICE, TO THE NOTICE ADDRESS HEREIN PROVIDED, SO LONG AS A
REASONABLE TIME FOR APPEARANCE IS ALLOWED.
10
8. RELEASE AND REAFFIRMATION OF RELEASE. FOR GOOD AND VALUABLE 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 GUARANTY, THE ADMINISTRATION OR
ENFORCEMENT THEREOF, AND THE NEGOTIATION OF, AND THE PREPARATION OF ANY
DEFINITIVE DOCUMENTATION IN ANTICIPATION OF, THIS AMENDMENT.
THE RELEASE PROVIDED IN THIS SECTION 8 SHALL SURVIVE THE TERMINATION OF THE LOAN
AGREEMENT, GUARANTY 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