ANY SUCH "DISPUTE" AND ANY ACTION ON
SUCH "DISPUTE." THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY THE
PARTIES HERETO, AND THE PARTIES HERETO HEREBY REPRESENT THAT NO REPRESENTATIONS
OF FACT OR OPINION HAVE BEEN MADE BY ANY PERSON OR ENTITY ACTING BY OR ON BEHALF
OF ADMINISTRATIVE AGENT OR ANY LENDER TO INDUCE THIS WAIVER OF TRIAL BY JURY OR
TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT.
THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT. THE PARTIES HERETO ARE
EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL. EACH PARTY HERETO FURTHER
REPRESENTS AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS
AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS
HAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF
ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER
WITH COUNSEL.
7.25
RELEASE.
(A)
BORROWERS REPRESENT AND WARRANT THAT BORROWERS DO NOT HAVE ANY
SETOFF, RECOUPMENT, COUNTERCLAIM, DEFENSE, CROSS-COMPLAINT, CLAIM, DEMAND OR
OTHER CAUSE OF ACTION OF ANY NATURE WHATSOEVER (COLLECTIVELY, "COUNTERCLAIMS")
AGAINST, ADMINISTRATIVE AGENT OR LENDERS WHICH ARISE OUT OF THE TRANSACTIONS
EVIDENCED BY THE LOAN DOCUMENTS, THE GUARANTY AGREEMENTS, OR ANY TRANSACTION
WITH ADMINISTRATIVE AGENT OR LENDERS, OR WHICH RELATE TO THE COLLATERAL, OR
WHICH COULD BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF BORROWERS'
LIABILITY TO REPAY THE INDEBTEDNESS OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF
ANY KIND OR NATURE FROM
52
ADMINISTRATIVE AGENT OR LENDERS, IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE
OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION, ANY CONTRACTING FOR, CHANGING, TAKING, RESERVING, COLLECTING
OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE
EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE LOAN DOCUMENTS OR GUARANTY
AGREEMENTS, THE NEGOTIATION FOR AND EXECUTION OF THIS AGREEMENT, AND ANY
SETTLEMENT NEGOTIATIONS.
TO THE EXTENT THAT ANY COUNTERCLAIMS MAY EXIST,
WHETHER KNOWN OR UNKNOWN, ALL SUCH COUNTERCLAIMS ARE WAIVED AND HEREBY RELEASED
BY BORROWERS;
(B)
BORROWERS, ON BEHALF OF THEMSELVES, AND THEIR SUCCESSORS, AGENTS,
ATTORNEYS, OFFICERS, DIRECTORS, MEMBERS, ASSIGNS AND PERSONNEL AND LEGAL
REPRESENTATIVES, DO HEREBY RELEASE, REMISE, ACQUIT AND FOREVER DISCHARGE
ADMINISTRATIVE AGENT, LENDERS, AND THEIR EMPLOYEES, AGENTS, REPRESENTATIVES,
CONSULTANTS, ATTORNEYS, FIDUCIARIES, SERVANTS, OFFICERS, DIRECTORS, PARTNERS,
PREDECESSORS, SUCCESSORS AND ASSIGNS, SUBSIDIARY CORPORATIONS, PARENT
CORPORATIONS, AND RELATED CORPORATE DIVISIONS (ALL OF THE FOREGOING HEREINAFTER
CALLED THE "RELEASED PARTIES"), FROM ANY AND ALL ACTIONS AND CAUSES OF ACTION,
JUDGMENTS, EXECUTIONS, SUITS, DEBTS, CLAIMS, DEMANDS, LIABILITIES, OBLIGATIONS,
DAMAGES AND EXPENSES OF ANY AND EVERY CHARACTER, KNOWN OR UNKNOWN, DIRECT AND/OR
INDIRECT, AT LAW OR IN EQUITY, OF WHATSOEVER KIND OR NATURE, WHETHER HERETOFORE
OR HEREAFTER ARISING, FOR OR BECAUSE OF ANY MATTER OR THINGS DONE, OMITTED OR
SUFFERED TO BE DONE BY ANY OF THE RELEASED PARTIES PRIOR TO THE DATE OF
EXECUTION HEREOF, AND IN