INTO, DELIVER AND PERFORM THIS AMENDMENT AND THIS AMENDMENT
IS THE LEGAL, VALID AND BINDING OBLIGATION OF THE BORROWER ENFORCEABLE AGAINST
THE BORROWER IN ACCORDANCE WITH ITS TERMS, AND (IV) ATTACHED HERETO AS EXHIBIT A
IS A SUMMARY OF ALL INTELLECTUAL PROPERTY OF THE BORROWER THAT
4
HAS BEEN REGISTERED OR ABANDONED DURING THE PERIOD FROM THE CLOSING DATE THROUGH
THE AMENDMENT DATE.
6.
CONDITION PRECEDENT TO EFFECTIVENESS OF
THIS AMENDMENT.
THIS AMENDMENT SHALL BECOME EFFECTIVE AS OF THE AMENDMENT DATE,
AND THE WAIVER SET FORTH IN SECTION 2 AND THE AMENDMENTS SET FORTH IN SECTION 3
HEREOF SHALL BE DEEMED TO BE EFFECTIVE AS OF THE AMENDMENT DATE (THE "EFFECTIVE
DATE"), UPON THE SATISFACTION IN FULL OF EACH OF THE FOLLOWING CONDITIONS
PRECEDENT:
(A) RECEIPT BY THE AGENT OF ONE OR MORE COUNTERPARTS OF THIS AMENDMENT DULY
EXECUTED AND DELIVERED BY THE BORROWER, AGENT AND LENDERS, IN FORM AND SUBSTANCE
SATISFACTORY TO AGENT AND LENDERS;
(B) RECEIPT BY THE AGENT OF PAYMENT BY THE BORROWER OF THE PAY DOWN AMOUNT IN
IMMEDIATELY AVAILABLE FUNDS; AND
(c)
evidence satisfactory to Agent that Borrower has received net cash proceeds
of at least $15,000,000 from an issuance of equity in form and substance, and
subject to documentation, satisfactory to Agent.
7.
RELEASE.
(A)
IN CONSIDERATION OF THE AGREEMENTS OF AGENT
AND LENDERS CONTAINED HEREIN AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, BORROWER, ON BEHALF OF
ITSELF AND ITS SUCCESSORS, ASSIGNS, AND OTHER LEGAL REPRESENTATIVES, HEREBY
ABSOLUTELY, UNCONDITIONALLY AND IRREVOCABLY RELEASE, REMISE AND FOREVER
DISCHARGE AGENT AND LENDERS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND
THEIR RESPECTIVE PRESENT AND FORMER SHAREHOLDERS, AFFILIATES, SUBSIDIARIES,
DIVISIONS, PREDECESSORS, DIRECTORS, OFFICERS, ATTORNEYS, EMPLOYEES, THE AGENTS
AND OTHER REPRESENTATIVES (AGENT AND LENDERS, AND ALL SUCH OTHER PERSONS BEING
HEREINAFTER REFERRED TO COLLECTIVELY AS THE "RELEASEES" AND INDIVIDUALLY AS A
"RELEASEE"), OF AND FROM ALL DEMANDS, ACTIONS, CAUSES OF ACTION, SUITS,
COVENANTS, CONTRACTS, CONTROVERSIES, AGREEMENTS, PROMISES, SUMS OF MONEY,
ACCOUNTS, BILLS, RECKONINGS, DAMAGES AND ANY AND ALL OTHER CLAIMS,
COUNTERCLAIMS, DEFENSES, RIGHTS OF SET-OFF, DEMANDS AND LIABILITIES WHATSOEVER
OTHER THAN WITH RESPECT TO ANY CLAIMS MADE TO CORRECT MANIFEST ERRORS WITH
RESPECT TO AMOUNTS OWING PURSUANT TO THE LOAN AGREEMENT, THIS AMENDMENT OR OTHER
DEBT DOCUMENTS (INDIVIDUALLY, A "CLAIM" AND COLLECTIVELY, "CLAIMS") OF EVERY
NAME AND NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, BOTH AT LAW AND IN
EQUITY, WHICH BORROWER OR ANY OF THEIR RESPECTIVE SUCCESSORS, ASSIGNS, OR OTHER
LEGAL REPRESENTATIVES MAY NOW OR HEREAFTER OWN, HOLD, HAVE OR CLAIM TO HAVE
AGAINST THE RELEASEES OR ANY OF THEM FOR, UPON, OR BY REASON OF ANY
CIRCUMSTANCE, ACTION, CAUSE OR THING WHATSOEVER WHICH ARISES AT ANY TIME ON OR
PRIOR TO THE DAY AND DATE OF THIS AMENDMENT, FOR OR ON ACCOUNT OF, OR IN
RELATION TO, OR IN ANY WAY IN CONNECTION WITH THE LOAN AGREEMENT, THIS AMENDMENT
OR ANY OF THE OTHER DEBT DOCUMENTS OR TRANSACTIONS THEREUNDER OR RELATED
THERETO.
(B)
BORROWER UNDERSTANDS, ACKNOWLEDGES AND
AGREES