of the other Loan
Documents.
In addition to the waivers, releases and discharges set forth above,
the Borrower and Parent each hereby permanently, irrevocably and unconditionally
waive all rights, actions, causes of action, defense, counterclaim or other
protections that the Borrower or Parent may at any time assert against any
Lender Party, as a result of or in connection with the running of any present
and future statute of limitations, laches or other
DLI-5879356v14
17
limitations period, with respect to any obligations, liabilities or indebtedness
of the Borrower and Parent under any Loan Document.
13.
THIS AMENDMENT, THE CREDIT AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT OF PARENT, THE BORROWER AND THE LENDER WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF, AND THERE ARE NO PROMISES,
UNDERTAKINGS, REPRESENTATIONS OR WARRANTIES BY THE LENDER RELATIVE TO THE
SUBJECT MATTER HEREOF AND THEREOF NOT EXPRESSLY SET FORTH OR REFERRED TO IN THIS
AMENDMENT, THE CREDIT AGREEMENT, THE NOTE OR THE OTHER LOAN DOCUMENTS.
14.
THE BORROWER AND PARENT EACH HEREBY IRREVOCABLY WAIVE, 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
AMENDMENT OR ANY OTHER LOAN DOCUMENTS (AS AMENDED HEREBY) OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY).
THE BORROWER AND PARENT EACH HEREBY FURTHER (A) CERTIFY THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGE THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
15.
Each of the Borrower and Parent hereby acknowledges and agrees that:
(a)
it has been advised by counsel in the negotiation, execution and delivery of
this Amendment, the GCA Amendment, the Debt Restructuring Agreement, the
Registration Rights Agreement and the other Loan Documents;
(b)
the Lender does not have any fiduciary relationship with or duty to the Borrower
or Parent arising out of or in connection with this Amendment, the GCA
Amendment, the Debt Restructuring Agreement, the Registration Rights Agreement
or any of the other Loan Documents, and the relationship between the Lender, on
one hand, and the Borrower and Parent, on the other hand, in connection herewith
or therewith is solely that of debtor and creditor; and
(c)
no joint venture is created by this Amendment, the GCA Amendment, the Debt
Restructuring Agreement, the Registration Rights Agreement, the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Borrower, Parent and the Lender.
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16.
Except as expressly amended, restated, modified or otherwise supplemented by
this Amendment, all of the terms, conditions and obligations contained in the
Credit Agreement and the other Loan Documents are, on