PART OF
ITS LIABILITY TO REPAY THE OBLIGATIONS OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES
OF ANY KIND OR NATURE FROM THE COLLATERAL AGENT OR THE PURCHASERS.
EACH LOAN
PARTY HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES THE
COLLATERAL AGENT AND THE PURCHASERS, THEIR RESPECTIVE AGENTS, EMPLOYEES,
SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "RELEASED PARTIES"), FROM ALL POSSIBLE
CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND
LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED,
SUSPECTED OR UNSUSPECTED, ASSERTED OR UNASSERTED, FIXED, CONTINGENT, OR
CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE
THE DATE THIS AMENDMENT IS EXECUTED, WHICH SUCH LOAN PARTY MAY NOW OR HEREAFTER
(WHETHER OR NOT PRESENTLY SUSPECTED, CONTEMPLATED OR ANTICIPATED) HAVE AGAINST
ANY OF THE RELEASED PARTIES, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS
ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND
ARISING FROM THE NOTE PURCHASE AGREEMENT AND/OR THE OTHER NOTE DOCUMENTS,
INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING,
COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE
APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE NOTE PURCHASE
AGREEMENT OR THE OTHER NOTE DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS
AMENDMENT.
2
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 OF THE RELEASED PARTIES THAT IT WILL NOT
SUE (AT LAW, IN EQUITY, IN ANY REGULATORY PROCEEDING OR OTHERWISE) ANY RELEASED
PARTY ON THE BASIS OF ANY CLAIM RELEASED, REMISED AND DISCHARGED BY THE LOAN
PARTIES PURSUANT TO THIS SECTION 5.
IF ANY LOAN PARTY OR ANY OF ITS SUCCESSORS,
ASSIGNS OR OTHER LEGAL REPRESENTATIVES VIOLATES THE FOREGOING COVENANT, THE LOAN
PARTIES AND THEIR SUCCESSORS, ASSIGNS AND LEGAL REPRESENTATIVES SHALL PAY, IN
ADDITIONAL TO SUCH OTHER DAMAGES AS ANY RELEASED PARTY MAY SUSTAIN AS A RESULT
OF SUCH VIOLATION, ALL ATTORNEYS' FEES AND COSTS INCURRED BY ANY RELEASED PARTY
AS A RESULT OF SUCH VIOLATION.
IN ENTERING INTO THIS AMENDMENT, THE LOAN PARTIES HAVE CONSULTED WITH, AND HAVE
BEEN REPRESENTED BY, LEGAL COUNSEL AND EXPRESSLY DISCLAIM ANY RELIANCE ON ANY
REPRESENTATIONS, ACTS OR OMISSIONS BY ANY OF THE RELEASED PARTIES AND HEREBY
AGREE AND ACKNOWLEDGE THAT THE VALIDITY AND EFFECTIVENESS OF THE RELEASES SET
FORTH IN THIS SECTION 5 DO NOT DEPEND IN ANY WAY ON ANY SUCH REPRESENTATIONS,
ACTS AND/OR OMISSIONS OR THE ACCURACY, COMPLETENESS OR VALIDITY THEREOF.
THE
PROVISIONS OF THIS SECTION 5 SHALL SURVIVE THE TERMINATION OF THE NOTE PURCHASE
AGREEMENT AND PAYMENT IN FULL OF THE OBLIGATIONS.
6.
Fees and Expenses.
Borrower shall pay to the Collateral Agent for
the ratable account of the Purchasers an amendment fee (the "Amendment Fee") in
the amount of $5,513.81 per day for each day from April 1, 2019 through May 31,
2019 that any of the Indebtedness evidenced by the Notes or the Amended and
Restated Secured Convertible Note, dated