WITHIN THE CONTROL OF THE COMPANY PARTIES),
FURTHER AGREE NEVER TO COMMENCE, AID OR PARTICIPATE IN (EXCEPT TO THE EXTENT
REQUIRED BY ORDER OR LEGAL PROCESS ISSUED BY A COURT OR GOVERNMENTAL AGENCY OF
COMPETENT JURISDICTION) ANY LEGAL ACTION OR OTHER PROCEEDING BASED IN WHOLE OR
IN PART UPON THE FOREGOING QUADRANGLE RELEASED MATTERS.
THE COMPANY PARTIES
AGREE THAT THIS WAIVER AND RELEASE IS AN ESSENTIAL AND MATERIAL TERM OF THIS
AGREEMENT AND THAT THE AGREEMENTS IN THIS PARAGRAPH ARE INTENDED TO BE IN FULL
SATISFACTION OF ANY ALLEGED INJURIES OR DAMAGES IN CONNECTION WITH THE
QUADRANGLE RELEASED MATTERS.
THE COMPANY PARTIES ALSO UNDERSTAND THAT THIS
RELEASE SHALL APPLY TO ALL UNKNOWN OR UNANTICIPATED RESULTS OF ANY ACTION OF ANY
PARTY, AS WELL AS THOSE KNOWN AND ANTICIPATED.
THE COMPANY PARTIES HAVE
CONSULTED WITH LEGAL COUNSEL PRIOR TO SIGNING THIS AGREEMENT, AND EXECUTE THIS
AGREEMENT VOLUNTARILY, WITH THE INTENTION OF FULLY AND FINALLY EXTINGUISHING ALL
QUADRANGLE RELEASED MATTERS.
THE PARTIES ACKNOWLEDGE AND AGREE THAT,
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE RIGHTS AND
OBLIGATIONS SET FORTH IN THIS AGREEMENT, THE OTHER RESTRUCTURING DOCUMENTS AND
THE VCOC LETTER SHALL SURVIVE AND SHALL NOT BE WAIVED OR RELEASED BY THIS
AGREEMENT OTHER THAN WITH RESPECT TO ANY CLAIMS ARISING FROM ANYTHING DONE,
OMITTED, SUFFERED, OR ALLOWED TO BE DONE UNDER THE CREDIT FACILITY ON OR PRIOR
TO THE DATE OF THIS AGREEMENT.
4
(C)
CREDIT FACILITY WAIVERS; FORBEARANCE.
WITHOUT IN ANY WAY LIMITING SECTION 1.2(A), EFFECTIVE AS OF THE CLOSING,
ACQUISITION LLC AND QMFL HEREBY WAIVE AND RELEASE ALL DEFAULTS AND EVENTS OF
DEFAULT UNDER THE CREDIT FACILITY EXISTING IMMEDIATELY PRIOR TO THE CLOSING.
WITHOUT IN ANY WAY LIMITING SECTION 1.2(B), EFFECTIVE AS OF THE CLOSING, THE
COMPANY RELEASING PARTIES HEREBY WAIVE, RELEASE, ACQUIT AND FOREVER DISCHARGE
THE QUADRANGLE RELEASED PARTIES FROM ANY CLAIMS RELATING TO THE CREDIT FACILITY,
WHETHER ARISING FROM ANYTHING DONE, OMITTED, SUFFERED, OR ALLOWED TO BE DONE ON
OR PRIOR TO THE DATE OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY CLAIMS
RELATING TO LENDER LIABILITY, THE DOCTRINE OF RECHARACTERIZATION OR EQUITABLE
SUBORDINATION, AND SHALL NOT SEEK TO EXERCISE ANY DEFENSES, RIGHTS OF SET-OFF OR
RECOUPMENT WITH RESPECT TO THE OBLIGATION, OR ANY PORTION THEREOF, IN CONNECTION
WITH ANY SUCH CLAIMS.
SECTION 1.3
EXCEPTIONS TO RELEASE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE PROVISIONS OF
THIS ARTICLE I SHALL HAVE NO EFFECT ON ANY ALARM MONITORING OR OTHER SERVICE
AGREEMENTS (INCLUDING CARD ACCESS CONTROL, CCTV AND FIRE AND SECURITY MONITORING
SERVICES), IF ANY, AMONG THE QUADRANGLE RELEASED PARTIES, ON THE ONE HAND, AND
THE COMPANY RELEASED PARTIES, ON THE OTHER HAND, IN EFFECT ON THE DATE OF THIS
AGREEMENT; PROVIDED, HOWEVER, THAT NOTHING IN THIS ARTICLE I SHALL BE HELD OR
IMPLIED TO WAIVE, AFFECT OR OTHERWISE MODIFY ANY RIGHTS, CLAIMS OR DEFENSES THAT
ANY QUADRANGLE RELEASED PARTY OR COMPANY RELEASED PARTY HAS OR MAY HAVE WITH
RESPECT TO THE AGREEMENTS DESCRIBED IN THIS SECTION 1.3.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY PARTIES
The