HEREUNDER.
14.
LIMITATION OF LIABILITY AND RELEASES.
AS A MATERIAL INDUCEMENT
TO LENDER TO ENTER INTO THIS AGREEMENT AND TO MAKE LOANS TO DEBTORS IN
ACCORDANCE WITH AND SUBJECT TO THE TERMS AND CONDITIONS OF THE LOAN DOCUMENTS,
ALL OF WHICH ARE TO THE DIRECT ADVANTAGE AND BENEFIT OF EACH OBLIGOR, AND ALL OF
THEIR RESPECTIVE HEIRS, SUCCESSORS AND ASSIGNS:
(A)
RELEASE.
EACH OBLIGOR DOES HEREBY REMISE, RELEASE, ACQUIT,
SATISFY AND FOREVER DISCHARGE LENDER, AND ALL OF THE PAST, PRESENT AND FUTURE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, FINANCIAL ADVISORS,
REPRESENTATIVES, PARTICIPANTS, HEIRS, SUCCESSORS AND ASSIGNS OF LENDER AND ANY
SUBSIDIARIES AND AFFILIATES OF LENDER (EACH A "LENDER PARTY") FROM ANY AND ALL
MANNER OF DEBTS, ACCOUNTINGS, BONDS, WARRANTIES, REPRESENTATIONS, COVENANTS,
PROMISES, CONTRACTS, CONTROVERSIES, ARGUMENTS, LIABILITIES, OBLIGATIONS,
EXPENSES, DAMAGES, JUDGMENTS, EXECUTIONS, ACTIONS, CLAIMS, DEMANDS AND CAUSES OF
ACTION OF ANY NATURE WHATSOEVER, WHETHER AT LAW OR IN EQUITY, EITHER NOW ACCRUED
OR NOW EXISTING AND HEREAFTER MATURING OR WHETHER KNOWN OR UNKNOWN, WHICH SUCH
OBLIGOR NOW HAS OR HEREAFTER CAN, SHALL OR MAY HAVE BY REASON OF ANY MANNER,
CAUSE OR THINGS, IN EACH CASE EXISTING OR ARISING FROM DECEMBER 28, 2007 TO AND
INCLUDING THE DATE ON WHICH ALL INDEBTEDNESS OF DEBTOR UNDER THE LOAN DOCUMENTS
IS PAID IN FULL RELATING TO MATTERS ARISING OUT OF OR IN CONNECTION WITH (I) ANY
AND ALL OBLIGATIONS OWED OR OWING BY SUCH OBLIGOR TO LENDER UNDER THE LOAN
DOCUMENTS OR (II) THE INDEBTEDNESS EVIDENCED AND SECURED THEREBY (COLLECTIVELY,
"OBLIGOR CLAIMS"), PROVIDED THAT THIS SECTION 15(A) SHALL NOT APPLY TO ANY
EXCLUDED OBLIGOR CLAIMS (DEFINED BELOW).
(B)
COVENANT NOT TO SUE.
EACH OBLIGOR DOES HEREBY COVENANT AND
AGREE NEVER TO INSTITUTE OR CAUSE TO BE INSTITUTED OR TO CONTINUE PROSECUTION OF
ANY SUIT OR OTHER FORM OF ACTION OR PROCEEDING OF ANY KIND OR NATURE WHATSOEVER
AGAINST ANY LENDER PARTY, BY REASON OF OR IN CONNECTION WITH ANY OBLIGOR CLAIMS
(OTHER THAN EXCLUDED OBLIGOR CLAIMS). IN ADDITION TO THE FOREGOING, EACH OBLIGOR
HEREBY WAIVES, RELEASES, AND AGREES NOT TO SUE ANY LENDER PARTY FOR PUNITIVE
DAMAGES IN RESPECT OF ANY CLAIM (OTHER THAN EXCLUDED OBLIGOR CLAIMS) IN
CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT OR ANY
OF THE OTHER LOAN DOCUMENTS, OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
- 25 -
(C)
EXCLUDED OBLIGOR CLAIMS.
AS USED HEREIN, THE TERM "EXCLUDED
OBLIGOR CLAIMS" SHALL MEAN ANY OBLIGOR CLAIM OF ANY OBLIGOR OR ANY OTHER PERSON
AGAINST ANY LENDER PARTY WHETHER NOW EXISTING OR HEREAFTER ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY
INDEBTEDNESS THEREUNDER THAT ARISE, OUT OF, AS A RESULT OF OR IN CONNECTION WITH
ANY WILLFUL OR INTENTIONAL MISCONDUCT, BAD FAITH OR GROSS NEGLIGENCE BY, OF OR
ON THE PART OF ANY LENDER PARTY.
15.
NO DUTY.
ALL ATTORNEYS, ACCOUNTANTS, APPRAISERS, FINANCIAL
ADVISORS AND OTHER PROFESSIONAL PERSONS AND CONSULTANTS RETAINED BY LENDER SHALL
HAVE THE