in the creation or imposition
of any lien or encumbrance upon any property of any Borrower pursuant to the
terms of any such agreement or instrument; (d) this Agreement has been duly and
validly executed and delivered by each Borrower and constitutes its legal, valid
and binding obligation, enforceable against each Borrower in accordance with its
terms;
(e) no authorizations, approvals or consents of, and no filings or
registrations with, any governmental or regulatory authority or agency, or any
securities exchange, are necessary for the execution, delivery or performance by
any Borrower of this Agreement or for the legality, validity or enforceability
hereof; (f) there are no Default or Events of Default in existence under the
Loan Documents other than the Specified Defaults; (g) assuming PIDC and MELF
each execute a MELF/PIDC Agreement, no Borrower is aware of any facts or
circumstances existing or expected to exist prior to January 31, 2011 that would
constitute defaults or events of default under any Borrower's agreement(s) with
MELF or PIDC; and (h) assuming Liberty and Liberty II execute the Liberty
Agreement, no Borrower is aware of any facts or circumstances existing or
expected to exist prior to January 31, 2011 that would constitute defaults or
events of default under any Borrower's agreement(s) with Liberty I or Liberty
II.
12.
ACKNOWLEDGEMENT AND RELEASE.
BORROWERS AND LENDERS EACH ACKNOWLEDGE AND AGREE THAT (I) THE INDEBTEDNESS,
SECURITY INTERESTS AND OTHER LIENS GRANTED TO LENDERS SECURING THE OBLIGATIONS
ARE VALID AND PERFECTED IN ACCORDANCE WITH APPLICABLE LAW; (II) THE OBLIGATIONS
ARE NOT SUBJECT TO ANY SETOFF, DEFENSE, CLAIM, COUNTERCLAIM, RECOUPMENT, OR
AVOIDANCE AND/OR SUBORDINATION UNDER THE BANKRUPTCY CODE OR OTHERWISE; AND (III)
BORROWERS HOLD NO CLAIMS AGAINST AGENT OR ANY LENDER, INDIVIDUALLY AND/OR AS
AGENT, SUCCESSOR OR ASSIGN, OR AGAINST AGENT'S OR ANY LENDER'S OFFICERS, AGENTS,
DIRECTORS, REPRESENTATIVES, ATTORNEYS, AND SUCCESSORS AND ASSIGNS (COLLECTIVELY,
THE "LENDER PARTIES").
TO THE EXTENT THAT ANY BORROWER HOLDS ANY CLAIMS AGAINST
ONE OR MORE OF THE LENDER PARTIES, INCLUDING BUT NOT LIMITED TO CLAIMS RELATING
TO ANY EXTENSION OR NON-EXTENSION OF A LETTER OF CREDIT OR ANY ISSUANCE OR
NON-ISSUANCE OF A LETTER OF CREDIT OR OTHERWISE ARISING FROM THE LOAN DOCUMENTS
AND ADMINISTRATION THEREOF OR COLLECTION OF
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AMOUNTS DUE THEREUNDER, OR ANY APPLICATIONS, DISCUSSIONS, AND/OR COMMITMENTS TO
ENTER INTO ANY FINANCE TRANSACTIONS, FORBEARANCE AGREEMENTS AND/OR AGREEMENTS
PRIOR TO THE DATE OF EXECUTION OF THIS AGREEMENT, AS CONSIDERATION FOR AGENT'S
AND LENDERS' UNDERTAKINGS UNDER THIS AGREEMENT, BORROWERS 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.
EACH BORROWER ACKNOWLEDGES AND REPRESENTS
THAT IT HAS HAD THE OPPORTUNITY TO RECEIVE THE ADVICE OF COUNSEL