the Bank a Lien on the Collateral as security for the
Obligations, that such pledge, assignment and/or grant of the Lien is hereby
ratified and confirmed in all respects, and such Borrower hereby reaffirms and
grants a Lien in favor of the Bank on all such Collateral.
20
(c)
Each Capex Note amends and restates (and the Borrower expressly
states that it does not constitute an extinguishment or novation of) that
certain Second Amended and Restated 2008 Equipment Purchase Note dated September
30, 2013, executed by the Borrower and payable to the order of the Bank in the
original principal amount of $1,000,000.00 (the "Prior Note"). No CapEx Note
evidences or effects a refinancing of all or any portion of the 2008 Equipment
Purchase Loan evidenced by the Prior Note, or a release or relinquishment
(including, without limitation, the priority) of any or all of the Liens and
security interests of the Bank in any of the Collateral. Borrower and Bank
acknowledge and agree that as of the date of this Agreement, there are no
outstanding amounts under the Prior Note.
(d)
AS A MATERIAL PART OF THE CONSIDERATION FOR BANK ENTERING INTO
THIS AGREEMENT, EACH BORROWER FOR ITSELF AND ITS OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, SUCCESSORS, ASSIGNS, AND TRUSTEES (COLLECTIVELY "RELEASOR") HEREBY
FOREVER RELEASES, FOREVER WAIVES AND FOREVER DISCHARGES BANK AND EACH OF BANK'S
PREDECESSORS, SUCCESSORS, ASSIGNS, OFFICERS, MANAGERS, DIRECTORS, SHAREHOLDERS,
EMPLOYEES, AGENTS, ATTORNEYS, REPRESENTATIVES, PARENT CORPORATIONS,
SUBSIDIARIES, AND AFFILIATES (HEREINAFTER ALL OF THE ABOVE COLLECTIVELY REFERRED
TO AS "LENDER GROUP"), FROM ANY AND ALL CLAIMS, COUNTERCLAIMS, DEMANDS, DAMAGES,
DEBTS, AGREEMENTS, COVENANTS, SUITS, CONTRACTS, OBLIGATIONS, LIABILITIES,
ACCOUNTS, OFFSETS, RIGHTS, ACTIONS, AND CAUSES OF ACTION OF ANY NATURE
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ALL CLAIMS, DEMANDS, AND CAUSES OF
ACTION FOR CONTRIBUTION AND INDEMNITY, WHETHER ARISING AT LAW OR IN EQUITY, AND
WHETHER ARISING UNDER, ARISING IN CONNECTION WITH, OR ARISING FROM, THIS
AGREEMENT, THE EXISTING LOAN AGREEMENT, THE EXISTING LOAN DOCUMENTS AND THE
OTHER LOAN DOCUMENTS OR OTHERWISE, WHETHER KNOWN OR UNKNOWN, WHETHER LIABILITY
BE DIRECT OR INDIRECT, LIQUIDATED OR UNLIQUIDATED, WHETHER ABSOLUTE OR
CONTINGENT, FORESEEN OR UNFORESEEN, AND WHETHER OR NOT HERETOFORE ASSERTED, IN
EACH CASE, TO THE EXTENT EXISTING, ACCRUED OR ARISING ON OR PRIOR TO THE DATE
HEREOF, WHICH RELEASOR MAY HAVE OR CLAIM TO HAVE AGAINST ANY OF THE LENDER
GROUP.
1.7.
Other Interpretive Provisions.
(a)
The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms. Whenever the context so
requires, the neuter gender includes the masculine and feminine, the single
number includes the plural, and vice versa.
(b)
Section and Schedule references are to this Agreement unless
otherwise specified. The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement
(c)
The term "including" is not limiting, and means "including,
without limitation".
(d)
In the computation of periods of time from a specified date to