BUSINESSFINANCING MODIFICATION AGREEMENT

 

BUSINESS FINANCING MODIFICATION AGREEMENT

 

 

1.           DESCRIPTION OF EXISTING INDEBTEDNESS: Among other indebtedness which may be owing by Borrower to Lender, Borrower is indebted to Lender pursuant to, among other documents, a Business Financing Agreement, dated February 18, 2009 by and between Borrower to Lender, as may be amended from time to time (the "Business Financing Agreement"). Capitalized terms used without definition herein shall have the meanings assigned to them in the Business Financing Agreement.

 

Hereinafter, all indebtedness owing by Borrower to Lender shall be referred to as the "Indebtedness" and the Business Financing Agreement and any and all other documents executed by Borrower in favor of Lender shall be referred to as the "Existing Documents."

 

2.           DESCRIPTION OF CHANGE IN TERMS.

 

A.

Modification(s) to Business Financing Agreement:

 

1.

The following defined term in Section 14.1 is hereby amended as follows:

 

"Credit Limit" means $2,000,000.00, which is intended to be the maximum amount of Advances at any time outstanding.

 

3.           CONSISTENT CHANGES. The Existing Documents are each hereby amended wherever necessary to reflect the changes described above.

 

4.           PAYMENT OF ADDITIONAL FACILITY FEE. Borrower shall pay Lender a fee in the amount of $4,375 ("Prorated Additional Facility Fee") plus all out-of-pocket expenses.

 

5.           NO DEFENSES OF BORROWER/GENERAL RELEASE. Borrower agrees that, as of this date, it has no defenses against the obligations to pay any amounts under the Indebtedness. Borrower ("Releasing Party") acknowledges that Lender would not enter into this Business Financing Modification Agreement without Releasing Party's assurance that it has no claims against Lender or any of Lender's officers, directors, employees or agents. Except for the obligations arising hereafter under this Business Financing Modification Agreement, each Releasing Party releases Lender, and each of Lender's and entity's officers, directors and employees from any known or unknown claims that Releasing Party now has against Lender of any nature, including any claims that Releasing Party, its successors, counsel, and advisors may in the future discover they would have now had if they had known facts not now known to them, whether founded in contract, in tort or pursuant to any other theory of liability, including but not limited to any claims arising out of or related to the Agreement or the transactions contemplated thereby. Releasing Party waives the provisions of California Civil Code section 1542, which states:

 

"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."

 

The provisions, waivers and releases set forth in this section are binding upon each Releasing Party and its shareholders, agents, employees, assigns and successors in interest. The provisions, waivers and releases of this section shall inure to the benefit of Lender and its agents, employees, officers, directors, assigns and successors in interest. The provisions of this section shall survive payment in full of the Obligations, full performance of all the terms of this Business Financing Modification Agreement and the Agreement, and/or Lender's actions to exercise any remedy available under the Agreement or otherwise.

 

 

7.           CONDITIONS. The effectiveness of this Business Financing Modification Agreement is conditioned upon payment of the Prorated Additional Facility Fee.

 

8.           COUNTERSIGNATURE. This Business Financing Modification Agreement shall become effective only when executed by Lender and Borrower.