hereunder without the prior written consent of Lender.
Section 6.8
Counterparts.
This Amendment may be executed in one or
more counterparts and on telecopy counterparts, each of which when so executed
shall be deemed to be an original, but all of which when taken together shall
constitute one and the same agreement.
Section 6.9
Headings.
The headings, captions, and arrangements
used in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
Section 6.10
Consideration.
IN CONSIDERATION OF THIS AMENDMENT,
BORROWER REPRESENTS AND WARRANTS THAT THERE ARE NO KNOWN CLAIMS, OFFSETS,
DEFENSES OR COUNTERCLAIMS TO ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS, AND
HEREBY WAIVES ANY AND ALL CLAIMS, OFFSETS, DEFENSES OR COUNTERCLAIMS, WHETHER
KNOWN OR UNKNOWN, ARISING PRIOR TO THE DATE OF ITS EXECUTION OF THIS AGREEMENT
AND RELEASES AND DISCHARGES LENDER, AND ITS OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, SHAREHOLDERS, AFFILIATES AND ATTORNEYS (COLLECTIVELY THE "RELEASED
PARTIES") FROM ANY AND ALL OBLIGATIONS, INDEBTEDNESS, LIABILITIES, CLAIMS,
RIGHTS, CAUSES OF ACTION OR DEMANDS WHATSOEVER, WHETHER KNOWN OR UNKNOWN,
SUSPECTED OR UNSUSPECTED, IN LAW OR EQUITY, WHICH BORROWER HAS OR MAY HAVE
AGAINST ANY RELEASED PARTY ARISING PRIOR TO THE DATE HEREOF AND FROM OR IN
CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
Section 6.11
Entire Agreement.
THIS AMENDMENT AND ALL OTHER
INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH
THIS AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND
SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS AMENDMENT, AND MAY NOT
BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
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4
Executed as of the date first written above.
BORROWER:
EQUINOX BUSINESS CREDIT CORP.
By:
Name:
Title:
LENDER:
FOOTHILL CAPITAL CORPORATION
By:
Name:
Title:
5
REAFFIRMATION OF GUARANTY AND STOCK PLEDGE AGREEMENT
The undersigned hereby (a) acknowledges the execution of, and consents
to the terms and conditions of, that certain Waiver and Third Amendment to Loan
and Security Agreement dated as of March 31, 2003, between Equinox Business
Credit Corp. and Foothill Capital Corporation ("Lender") and reaffirms its
obligations under (i) that certain Continuing Guaranty (the "Guaranty") dated as
of December 19, 2001, and (ii) that certain Stock Pledge Agreement (the "Pledge
Agreement") dated as of December 19, 2001, each made by the undersigned in favor
of Lender, and (b) acknowledges and agrees that the Guaranty and the Pledge
Agreement remain in full force and effect, free of any defense, offset or
counterclaim, and the Guaranty and the Pledge Agreement are hereby ratified and
confirmed.
GUARANTOR:
EQUIFIN, INC.
By:
Name:
Title:
6
REAFFIRMATION OF VALIDITY GUARANTIES
Each of the undersigned hereby (a) acknowledges the execution of, and
consents to the terms and conditions of, that certain Waiver and Third Amendment
to Loan and Security Agreement