participating Banks, from Ray-Carroll,
or other party, to provide additional Subordinated Debt or additional equity to
allow Borrower to fulfill its obligations under the Existing 2008 Contracts (the
"Ray-Carroll Equity")."
6.
Release/Lender Liability.
The Parties hereto acknowledge and agree
that a new Section 8.18 "No Existing Default; Waiver and Release by Borrower"
shall be added to the agreement, and shall read as follows:
"8.18 NO EXISTING DEFAULT; WAIVER AND RELEASE BY BORROWER.
FOR AND IN
CONSIDERATION OF THE EXECUTION AND DELIVERY BY LENDER OF THIS AGREEMENT,
BORROWER HEREBY RELEASES AND DISCHARGES LENDER, ITS PAST, PRESENT AND FUTURE
AFFILIATES, DIRECTORS, OFFICERS, PRINCIPALS, SHAREHOLDERS, EMPLOYEES,
TRANSFEREES, ATTORNEYS AND AGENTS FROM ANY AND ALL CLAIMS, LIABILITIES,
OBLIGATIONS, RIGHTS OR CAUSES OF ACTION OF ANY KIND AND NATURE IN LAW OR IN
EQUITY BASED UPON ANY ACT, EVENT OR RELATIONSHIP OCCURRING OR EXISTING AT ANY
TIME IN THE PAST, UP TO AND THROUGH THE DATE ON WHICH THIS AGREEMENT IS
EXECUTED, INCLUDING, WITHOUT LIMITATION, ALL CAUSES OF ACTION IN LAW OR IN
EQUITY FOR BREACH OF CONTRACT, LENDER LIABILITY, FAILURE TO ADVANCE FUNDS,
REFUSAL TO LOAN MONEY, NEGLIGENCE, MISREPRESENTATION, FRAUD, VIOLATION OF THE
DECEPTIVE TRADE PRACTICES CONSUMER PROTECTION ACT, USURY, INTENTIONAL
INTERFERENCE WITH CONTRACTUAL OR BUSINESS RELATIONSHIPS, ANTITRUST VIOLATIONS,
UNFAIR TRADE PRACTICES, DAMAGES, INFLICTION OF EMOTIONAL DISTRESS OR MENTAL
ANGUISH, ACTUAL DAMAGES, EXEMPLARY DAMAGES, CONSEQUENTIAL DAMAGES, AND ALL
CLAIMS, LIABILITIES, OBLIGATIONS, RIGHTS OR CAUSES OF ACTION BASED UPON THE
EXISTING LOANS AND THE PARTIES' PAST DEALINGS AND RELATIONSHIPS INCLUDING, BUT
NOT LIMITED TO, ANY WRITTEN OR ORAL AGREEMENTS OF ANY KIND OR NATURE ENTERED
INTO OR ALLEGED TO HAVE BEEN ENTERED INTO PRIOR TO THE DATE OF THIS
AGREEMENT.
ADDITIONALLY, BORROWER FURTHER HEREBY WAIVES ANY AND ALL DEFENSES,
OFFSETS AND COUNTERCLAIMS TO LENDER'S ENFORCEMENT OF THE LOAN DOCUMENTS OR ANY
ACTION BY LENDER TO FORECLOSE THE SECURITY INTEREST, WHETHER SECURED BY REAL OR
PERSONAL PROPERTY AND COVENANTS AND AGREES THAT NO RIGHT IS RESERVED BY THE
BORROWER TO MAKE ANY CLAIM AGAINST THE LENDER, OR ITS PAST, PRESENT AND FUTURE
AFFILIATES, DIRECTORS, OFFICERS, PRINCIPALS, SHAREHOLDERS, EMPLOYEES,
TRANSFEREES, ATTORNEYS AND AGENTS, ARISING FROM THE MATTERS ABOVE REFERENCED.
3
BORROWER HEREBY EXPRESSLY AGREES THAT THE TERMS OF THIS SECTION 8.18 EXTEND TO
CLAIMS WHICH BORROWER DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME
OF EXECUTING THIS AGREEMENT, WHICH IF KNOWN BY ANY OF THEM WOULD MATERIALLY
AFFECT ITS DECISION TO EXECUTE THIS AGREEMENT, AND EXPRESSLY WAIVE THE
APPLICATION OF ANY LAW OR DECISION WHICH WOULD EXCLUDE PARTICULAR CLAIMS FROM
THE APPLICATION OF THIS SECTION 8.18 IF BORROWER HAD BEEN AWARE OF ANY SUCH
CLAIMS AT THE TIME OF THE EXECUTION OF THIS AGREEMENT.
BORROWER SPECIFICALLY FURTHER ACKNOWLEDGES THAT IT SOUGHT AND RECEIVED OR HAD
THE OPPORTUNITY TO SEEK AND RECEIVE LEGAL COUNSEL CONCERNING THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION, THIS SECTION 8.18 AND THIS AGREEMENT, IS ENTERED
INTO SOLELY IN RELIANCE UPON BORROWER'S OWN KNOWLEDGE, BELIEF AND JUDGMENT AND
NOT UPON ANY REPRESENTATION MADE BY THE LENDER OR ITS PAST, PRESENT