HEREBY UNCONDITIONALLY FOREVER
RELEASE, DISCHARGE, AND ACQUIT THE LENDER PARTIES OF ANY AND ALL CLAIMS,
BREACHES OF CONTRACT, DEBTS, SUITS, DEMANDS, CAUSES OF ACTIONS AND ACTIONS OF
ANY TYPE OR NOTICE WHICH AROSE OR ARE BASED ON OCCURRENCES OR TRANSACTIONS WHICH
TOOK PLACE PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT, WHETHER KNOWN OR
UNKNOWN, CONTINGENT OR LIQUIDATED, SUSPECTED OR UNSUSPECTED, AT LAW OR IN
EQUITY, OR BASED IN CONTRACT OR TORT.
BORROWER AND EACH SUBSIDIARY GUARANTOR
ACKNOWLEDGE AND REPRESENT THAT THEY HAVE HAD THE OPPORTUNITY TO RECEIVE THE
ADVICE OF COUNSEL IN CONNECTION WITH THIS ACKNOWLEDGMENT AND RELEASE AND HAS
VOLUNTARILY ENTERED INTO THIS ACKNOWLEDGEMENT AND RELEASE.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
5
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 7.
BORROWERS ACKNOWLEDGE THAT BORROWERS HAVE NO RIGHT TO CURE EVENTS OF DEFAULT.
8.
Inconsistencies.
To the extent of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of the Credit
Agreement or the other Loan Documents, the terms and conditions of this
Agreement shall prevail.
All terms and conditions of the Credit Agreement and
the other Loan Documents not inconsistent herewith shall remain in full force
and effect and are hereby ratified and confirmed by Borrowers.
Notwithstanding
anything herein to the contrary, nothing herein shall be construed to affect the
waiver of the Designated Defaults under (and as defined in) the Forbearance and
First Amendment, and such waiver continues in full force and effect (subject, in
all respects, to the terms and conditions of such waiver set forth in the
Forbearance and First Amendment).
9.
Counterparts.
This Agreement may be executed by each party in
counterparts and may be delivered by facsimile or in electronic PDF sent via
e-mail, each of which shall be deemed to be an original and all of which, taken
together, shall constitute one agreement binding upon all parties.
10.
Binding Effect.
This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns.
11.
Status of Loan Documents.
Borrowers further agree that (a) all terms and
conditions of the Loan Documents remain in full force and effect, except as
expressly modified by the terms of this Agreement and (b) this Agreement
constitutes a Loan Document.
12.
No Waiver.
The execution, delivery and effectiveness of this Agreement
by Lender except