satisfied.
The Obligors acknowledge that the Loan Documents
constitute the valid obligations of the Obligors, enforceable in accordance with
their respective terms, without any counterclaim, defense or setoff.
26.
Waiver and Release.
The Obligors warrant and represent
to the
Lender that the loans evidenced by the Loan Documents are not subject to any
credits, charges, claims, or rights of offset or deduction of any kind or
character whatsoever and, as a material part of the consideration for the Lender
entering into this Agreement,
each Obligor agrees as follows (the "Release
Provision"):
(a)
EACH OBLIGOR HEREBY RELEASES AND FOREVER DISCHARGES THE LENDER AND
EACH OF ITS PREDECESSORS, SUCCESSORS, ASSIGNS, OFFICERS, MANAGERS, DIRECTORS,
MEMBERS, SHAREHOLDERS, EMPLOYEES, AGENTS, ATTORNEYS, REPRESENTATIVES, PARENT
CORPORATIONS, SUBSIDIARIES, AND AFFILIATES (HEREINAFTER ALL OF THE ABOVE
COLLECTIVELY REFERRED TO AS "RELEASED PARTIES") JOINTLY AND SEVERALLY FROM ANY
AND ALL CLAIMS, COUNTERCLAIMS, DEMANDS, DAMAGES, DEBTS, AGREEMENTS, COVENANTS,
SUITS, CONTRACTS, OBLIGATIONS, LIABILITIES, ACCOUNTS, OFFSETS, RIGHTS, ACTIONS,
AND CAUSES OF ACTION OF ANY NATURE WHATSOEVER OCCURRING PRIOR TO THE DATE
HEREOF, INCLUDING, WITHOUT LIMITATION, ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION
FOR CONTRIBUTION AND INDEMNITY, WHETHER ARISING AT LAW OR IN EQUITY, PRESENTLY
POSSESSED, WHETHER KNOWN OR UNKNOWN, WHETHER LIABILITY BE DIRECT OR INDIRECT,
LIQUIDATED OR UNLIQUIDATED, PRESENTLY ACCRUED, WHETHER ABSOLUTE OR CONTINGENT,
FORESEEN OR UNFORESEEN, AND WHETHER OR NOT HERETOFORE ASSERTED ("CLAIMS"), WHICH
BORROWER MAY HAVE OR CLAIM TO HAVE AGAINST ANY RELEASED PARTIES.
(b)
Each Obligor agrees not to sue any Released Parties or in any way
assist any other Person in suing any Released Parties with respect to any Claim
released herein.
The Release Provision may be pleaded as a full and complete
defense to, and may be used as the basis for an injunction against, any action,
suit, or other proceeding which may be instituted, prosecuted, or attempted in
breach of the release contained herein.
(c)
Each Obligor acknowledges, warrants, and represents to Released
Parties that:
(i)
Each Obligor has read and understands the effect of the Release
Provision.
Each Obligor has had the assistance of independent counsel of its
own choice, or has had the opportunity to retain such independent counsel, in
reviewing, discussing, and considering all the terms of the Release Provision;
and if counsel was retained, counsel for each Obligor has read and considered
the Release Provision and advised each Obligor to execute the same.
Before
execution of this Agreement,
each Obligor has had adequate opportunity to make
whatever investigation or inquiry it may deem necessary or desirable in
connection with the subject matter of the Release Provision.
(ii)
Each Obligor is not acting in reliance on any representation,
understanding, or agreement not expressly set forth herein.
Each Obligor
acknowledges that the Released Parties have not made any representation with
respect to the Release Provision except as expressly set forth herein.
(iii)
Each Obligor has executed this Agreement and the Release Provision
thereof as its free and voluntary act, without any duress, coercion, or undue
influence exerted by or on behalf of any Person.
(iv)