by any
Lender Party or require Lender Parties to extend the Forbearance Period, or
grant additional forbearance periods, or extend the term of the Loan Agreement
or the time for payment of any of the Obligations; or (iv) require any Lender
Party to make any Loans or other extensions of credit to Borrower after
termination of the Forbearance Period.
In the event of any inconsistency
between the terms of this Agreement and the Loan Agreement or the other Loan
Documents, this Agreement shall govern.
Borrower and each Guarantor
acknowledges that it has consulted with counsel and with such other experts and
advisors as it has deemed necessary in connection with the negotiation,
execution and delivery of this Agreement and related documents.
This Agreement
shall be construed without regard to any presumption or rule requiring that it
be construed against the party causing this Agreement or any part hereof to be
drafted.
NO COUNTERCLAIMS; RELEASE OF CLAIMS; WAIVER; HOLD HARMLESS
.
BORROWER AND each GUARANTOR REPRESENT AND WARRANT THAT NOne of BORROWER OR
ANY GUARANTOR HAVE ANY SET-OFF, RECOUPMENT, COUNTERCLAIM, DEFENSE,
CROSS-COMPLAINT, CLAIM, DEMAND OR OTHER CAUSE OF ACTION OF ANY NATURE WHATSOEVER
(TOGETHER, THE "COUNTERCLAIMS") AGAINST ANY LENDER PARTY WHICH ARISE OUT OF THE
TRANSACTIONS EVIDENCED BY THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS, ANY
TRANSACTIONS THAT WERE RENEWED OR EXTENDED BY THE LOAN AGREEMENT OR THE OTHER
LOAN DOCUMENTS, ANY OTHER TRANSACTION WITH LENDER PARTIES, OR WHICH COULD BE
ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF BORROWER'S OR ANY GUARANTOR'S
LIABILITY TO REPAY THE OBLIGATIONS OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF
ANY KIND OR NATURE FROM LENDER PARTIES, IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS
ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE,
INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING,
COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE
FORBEARANCE AGREEMENT AND AMENDMENT TO LOAN AND SECURITY AGREEMENT - Page 10
HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER
THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS, THE NEGOTIATION FOR AND
EXECUTION OF THIS AGREEMENT, AND ANY SETTLEMENT NEGOTIATIONS.
TO THE EXTENT
THAT ANY COUNTERCLAIMS MAY EXIST, WHETHER KNOWN OR UNKNOWN, SUCH ARE WAIVED AND
HEREBY RELEASED BY BORROWER AND GUARANTORs.
FURTHERMORE, BORROWER AND
GUARANTORs, ON BEHALF OF THEMSELVES AND THEIR SUCCESSORS, AGENTS, ATTORNEYS,
OFFICERS, DIRECTORS, ASSIGNS AND PERSONNEL AND LEGAL REPRESENTATIVES, DO HEREBY
RELEASE, REMISE, ACQUIT AND FOREVER DISCHARGE EACH LENDER PARTY 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