EXTINGUISH, AMONG OTHER THINGS, ALL
CLAIMS AND MATTERS THAT MIGHT OTHERWISE BE RESERVED BY CALIFORNIA CIVIL CODE
SECTION 1542, WHICH PROVIDES AS FOLLOWS:
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which
if known by him or her must have materially affected his or her settlement with
the debtor."
Notwithstanding the foregoing, this Section 3.2 shall not constitute a release
of the obligations of the Second Lien Administrative Agent or any Second Lien
Lender under the Loan Documents, such waiver and release being with full
knowledge and understanding of the circumstances and effect thereof and after
having consulted legal counsel with respect thereto.
SECTION 3.3.
COVENANT NOT TO SUE.
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 RELEASEE THAT IT WILL NOT SUE (AT LAW, IN EQUITY, IN ANY
REGULATORY PROCEEDING OR OTHERWISE) ANY RELEASEE ON THE BASIS OF ANY CLAIM
RELEASED, REMISED AND DISCHARGED BY SUCH LOAN PARTY PURSUANT TO SECTION 3.2
ABOVE.
IF ANY LOAN PARTY OR ANY OF ITS SUCCESSORS, ASSIGNS OR OTHER LEGAL
REPRESENTATIONS VIOLATES THE FOREGOING COVENANT, SUCH LOAN PARTY, FOR ITSELF AND
ITS SUCCESSORS, ASSIGNS AND LEGAL REPRESENTATIVES, AGREES TO PAY, IN ADDITION TO
SUCH OTHER DAMAGES AS ANY RELEASEE MAY SUSTAIN AS A RESULT OF SUCH VIOLATION,
ALL ATTORNEYS' FEES AND COSTS INCURRED BY ANY RELEASEE AS A RESULT OF SUCH
VIOLATION.
SECTION 3.4.
LOAN DOCUMENTS UNAFFECTED.
EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED HEREIN, ALL PROVISIONS OF THE SECOND LIEN CREDIT AGREEMENT
(INCLUDING WITHOUT LIMITATION, SECTION 10.07 THEREOF) AND THE OTHER LOAN
DOCUMENTS (INCLUDING, WITHOUT LIMITATION, THE FORBEARANCE AGREEMENT AND THE
INTERCREDITOR AGREEMENT) SHALL REMAIN IN FULL FORCE AND EFFECT AND BE UNAFFECTED
HEREBY.
THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THIS CONSENT CONSTITUTES
A "LOAN DOCUMENT" UNDER THE TERMS OF THE SECOND LIEN CREDIT AGREEMENT.
SECTION 3.5.
GUARANTOR ACKNOWLEDGEMENT.
EACH GUARANTOR, BY
SIGNING THIS CONSENT:
(A)
CONSENTS AND AGREES TO AND ACKNOWLEDGES THE
TERMS OF THIS CONSENT;
(B)
ACKNOWLEDGES AND AGREES THAT ALL OF THE LOAN
DOCUMENTS TO WHICH SUCH GUARANTOR IS A PARTY OR OTHERWISE BOUND SHALL CONTINUE
IN FULL FORCE AND EFFECT AND THAT ALL OF SUCH GUARANTOR'S OBLIGATIONS THEREUNDER
SHALL BE VALID AND ENFORCEABLE AND SHALL NOT BE IMPAIRED OR LIMITED BY THE
EXECUTION OR EFFECTIVENESS OF THIS CONSENT;
3
(C)
REPRESENTS AND WARRANTS TO THE SECOND LIEN
ADMINISTRATIVE AGENT AND THE SECOND LIEN LENDERS THAT ALL REPRESENTATIONS AND
WARRANTIES MADE BY SUCH GUARANTOR AND CONTAINED IN THIS CONSENT OR ANY OTHER
LOAN DOCUMENT TO WHICH IT IS A PARTY ARE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS (OTHER THAN SUCH REPRESENTATIONS AND WARRANTIES THAT ARE UNTRUE OR
OTHERWISE INACCURATE SOLELY AND DIRECTLY AS A RESULT OF THE EXISTING EVENTS OF
DEFAULT) ON AND AS OF THE DATE OF THIS CONSENT TO THE SAME EXTENT AS