AMENDMENT.
IN CONSIDERATION OF LENDER ENTERING INTO THIS THIRD 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 THIRD AMENDMENT ARE
INSERTED FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT AFFECT THE MEANING OR
INTERPRETATION OF THIS THIRD AMENDMENT OR ANY PROVISIONS HEREOF.
6.2
COUNTERPARTS.
THIS THIRD AMENDMENT MAY BE EXECUTED BY THE PARTIES
HERETO IN SEVERAL COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL
AND ALL OF
6
WHICH TOGETHER SHALL BE DEEMED TO BE ONE AND THE SAME INSTRUMENT.
DELIVERY OF
AN EXECUTED COUNTERPART OF A SIGNATURE PAGE TO THIS THIRD AMENDMENT BY FACSIMILE
TRANSMISSION SHALL BE EFFECTIVE AS DELIVERY OF A MANUALLY EXECUTED COUNTERPART
THEREOF.
6.3
INTERPRETATION.
NO PROVISION OF THIS THIRD 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 THIRD AMENDMENT CONSTITUTES THE
COMPLETE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER
HEREOF, AND SUPERSEDES ANY PRIOR WRITTEN OR ORAL AGREEMENTS, WRITINGS,
COMMUNICATIONS OR UNDERSTANDINGS OF THE PARTIES WITH RESPECT THERETO.
6.5
GOVERNING LAW.
THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE
PRINCIPLES THEREOF REGARDING CONFLICT OF LAWS.
6.6
EFFECT.
UPON THE EFFECTIVENESS OF THIS THIRD AMENDMENT, EACH
REFERENCE IN THE LOAN AGREEMENT TO "THIS AGREEMENT," "HEREUNDER," "HEREOF" OR
WORDS OF LIKE IMPORT SHALL MEAN AND BE A REFERENCE TO THE LOAN AGREEMENT AS
AMENDED HEREBY AND EACH REFERENCE IN THE OTHER