LOAN PARTY HAS RECEIVED A NOTICE OF DEFAULT OF ANY KIND FROM
ANY MATERIAL ACCOUNT DEBTOR OR ANY COUNTERPARTY TO A MATERIAL CONTRACT AND NO
MATERIAL
6
ACCOUNT DEBTOR OR COUNTERPARTY TO A MATERIAL CONTRACT HAS ASSERTED ANY RIGHT OF
SET-OFF, DEDUCTION OR COUNTERCLAIM WITH RESPECT TO ANY ACCOUNT OR SUCH MATERIAL
CONTRACT, RESPECTIVELY.
SECTION 4.2
RELEASE.
EACH LOAN PARTY
HEREBY WAIVES AND RELEASES THE FIRST LIEN ADMINISTRATIVE AGENT AND THE FIRST
LIEN LENDERS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS,
ATTORNEYS, AFFILIATES AND SUBSIDIARIES (EACH A "RELEASEE") FROM ANY AND ALL
CLAIMS, OFFSETS, DEFENSES AND COUNTERCLAIMS, KNOWN AND UNKNOWN, THAT ANY LOAN
PARTY MAY HAVE AS OF THE DATE OF THIS AGREEMENT BASED UPON, RELATING TO, OR
ARISING OUT OF THE OBLIGATIONS AND RELATED TRANSACTIONS IN ANY WAY.
EACH LOAN
PARTY INTENDS THE FOREGOING RELEASE TO COVER, ENCOMPASS, RELEASE AND 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 4.2 SHALL NOT CONSTITUTE A RELEASE
OF THE OBLIGATIONS OF THE FIRST LIEN ADMINISTRATIVE AGENT OR ANY FIRST 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 4.3
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 4.2 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 4.4
LOAN DOCUMENTS UNAFFECTED.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, ALL PROVISIONS OF THE FIRST
LIEN CREDIT AGREEMENT (INCLUDING WITHOUT LIMITATION, SECTION 10.07 THEREOF) AND
THE OTHER LOAN DOCUMENTS (INCLUDING, WITHOUT LIMITATION, THE INTERCREDITOR
AGREEMENT) SHALL REMAIN IN FULL FORCE AND EFFECT AND BE UNAFFECTED HEREBY.
THE
PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT CONSTITUTES A "LOAN
DOCUMENT" UNDER THE TERMS OF THE FIRST LIEN CREDIT AGREEMENT.
SECTION 4.5
GUARANTOR ACKNOWLEDGEMENT.
EACH GUARANTOR, BY SIGNING THIS AGREEMENT:
(A)
CONSENTS AND AGREES TO AND ACKNOWLEDGES THE
TERMS OF THIS AGREEMENT;
(B)
ACKNOWLEDGES AND AGREES THAT