"RELEASEE") FROM ANY AND ALL CLAIMS, OFFSETS, DEFENSES AND
COUNTERCLAIMS, KNOWN AND UNKNOWN, THAT ANY LOAN PARTY MAY HAVE AS OF THE DATE OF
THIS AMENDMENT BASED UPON, RELATING TO, OR ARISING OUT OF THE OBLIGATIONS AND
RELATED TRANSACTIONS IN ANY WAY.
EACH LOAN PARTY INTENDS THE FOREGOING RELEASE
TO COVER, ENCOMPASS, RELEASE AND EXTINGUISH, AMONG OTHER THINGS, ALL CLAIMS AND
MATTERS THAT MIGHT OTHERWISE BE RESERVED BY CALIFORNIA CIVIL CODE SECTION 1542,
WHICH PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR. "
NOTWITHSTANDING THE FOREGOING, THIS SECTION 3.2 SHALL NOT CONSTITUTE A RELEASE
OF THE OBLIGATIONS OF THE FIRST LIEN ADMINISTRATIVE AGENT OR ANY FIRST LIEN
LENDER UNDER THE LOAN DOCUMENTS, SUCH WAIVER AND RELEASE BEING WITH FULL
KNOWLEDGE AND UNDERSTANDING OF THE CIRCUMSTANCES AND EFFECT THEREOF AND AFTER
HAVING CONSULTED LEGAL COUNSEL WITH RESPECT THERETO.
SECTION 3.3
COVENANT NOT TO SUE.
EACH LOAN PARTY, ON BEHALF OF ITSELF
AND ITS SUCCESSORS, ASSIGNS, AND OTHER LEGAL REPRESENTATIVES, HEREBY ABSOLUTELY,
UNCONDITIONALLY AND IRREVOCABLY, COVENANTS AND AGREES WITH AND IN FAVOR OF EACH
RELEASEE THAT IT WILL NOT SUE (AT LAW, IN EQUITY, IN ANY REGULATORY PROCEEDING
OR OTHERWISE) ANY RELEASEE ON THE BASIS OF ANY CLAIM RELEASED, REMISED AND
DISCHARGED BY SUCH LOAN PARTY PURSUANT TO SECTION 3.2 ABOVE.
IF ANY LOAN PARTY
OR ANY OF ITS SUCCESSORS, ASSIGNS OR OTHER LEGAL REPRESENTATIONS VIOLATES THE
FOREGOING COVENANT, SUCH LOAN PARTY, FOR ITSELF AND ITS SUCCESSORS, ASSIGNS AND
LEGAL REPRESENTATIVES, AGREES TO PAY, IN ADDITION TO SUCH OTHER DAMAGES AS ANY
RELEASEE MAY SUSTAIN AS A RESULT OF SUCH VIOLATION, ALL ATTORNEYS' FEES AND
COSTS INCURRED BY ANY RELEASEE AS A RESULT OF SUCH VIOLATION.
SECTION 3.4
LOAN DOCUMENTS UNAFFECTED.
EXCEPT AS OTHERWISE SPECIFICALLY
PROVIDED HEREIN, ALL PROVISIONS OF THE FIRST LIEN CREDIT AGREEMENT (INCLUDING
WITHOUT LIMITATION, SECTION 10.07 THEREOF) AND THE OTHER LOAN DOCUMENTS
(INCLUDING, WITHOUT LIMITATION, THE FORBEARANCE AGREEMENT AND THE INTERCREDITOR
AGREEMENT) SHALL REMAIN IN FULL FORCE AND EFFECT AND BE
3
UNAFFECTED HEREBY.
THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THIS AMENDMENT
CONSTITUTES A "LOAN DOCUMENT" UNDER THE TERMS OF THE FIRST LIEN CREDIT
AGREEMENT.
SECTION 3.5
GUARANTOR ACKNOWLEDGEMENT.
EACH GUARANTOR, BY SIGNING THIS
AMENDMENT:
(A)
CONSENTS AND AGREES TO AND ACKNOWLEDGES THE TERMS OF THIS
AMENDMENT;
(B)
ACKNOWLEDGES AND AGREES THAT ALL OF THE LOAN DOCUMENTS TO WHICH
SUCH GUARANTOR IS A PARTY OR OTHERWISE BOUND SHALL CONTINUE IN FULL FORCE AND
EFFECT AND THAT ALL OF SUCH GUARANTOR'S OBLIGATIONS THEREUNDER SHALL BE VALID
AND ENFORCEABLE AND SHALL NOT BE IMPAIRED OR LIMITED BY THE EXECUTION OR
EFFECTIVENESS OF THIS AMENDMENT;
(C)
REPRESENTS AND WARRANTS TO THE FIRST LIEN ADMINISTRATIVE AGENT AND
THE FIRST LIEN LENDERS THAT ALL REPRESENTATIONS AND WARRANTIES MADE BY SUCH
GUARANTOR AND CONTAINED IN THIS AMENDMENT OR ANY