or in connection with the Second Lien Credit Agreement or the other
Loan Documents and any such claim is hereby irrevocably waived and released and
discharged forever.
Until the Obligations are paid in full in cash and all
obligations and liabilities of Borrowers under this Amendment, the Second Lien
Credit Agreement and the Loan Documents are performed and paid in full in cash,
each Borrower agrees and covenants it is bound by the covenants and agreements
set forth in the Second Lien Credit Agreement, Loan Document and in this
Agreement.
Each Borrower hereby ratifies and confirms the Obligations.
This
Agreement does not create or constitute, and is not, a novation of the Second
Lien Credit Agreement and the other Loan Documents.
8.
Release.
AS A MATERIAL PART OF THE CONSIDERATION FOR AGENT AND
THE LENDERS ENTERING INTO THIS AGREEMENT, EACH BORROWER, FOR ITSELF AND ITS
OFFICERS, MEMBERS, MANAGERS, SHAREHOLDERS, PARTNERS, DIRECTORS, EMPLOYEES AND
AGENTS (COLLECTIVELY "RELEASOR") HEREBY FOREVER RELEASES, FOREVER WAIVES AND
FOREVER DISCHARGES AGENT AND EACH LENDER AND ITS PREDECESSORS, SUCCESSORS,
ASSIGNS, OFFICERS, MANAGERS, DIRECTORS, SHAREHOLDERS, INVESTMENT MANAGERS,
PARTNERS, EMPLOYEES, AGENTS, ATTORNEYS, REPRESENTATIVES, PARENT CORPORATIONS,
SUBSIDIARIES, AND AFFILIATES (HEREINAFTER ALL OF THE ABOVE COLLECTIVELY REFERRED
TO AS "LENDER GROUP"), 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, INCLUDING, WITHOUT LIMITATION, ALL CLAIMS,
DEMANDS, AND CAUSES OF ACTION FOR CONTRIBUTION AND INDEMNITY, WHETHER ARISING AT
LAW OR IN EQUITY, AND WHETHER ARISING UNDER, ARISING IN CONNECTION WITH, OR
ARISING FROM, THE SECOND LIEN CREDIT AGREEMENT, AND THE OTHER LOAN DOCUMENTS OR
OTHERWISE, 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, WHICH RELEASOR MAY HAVE OR CLAIM TO HAVE, AGAINST ANY OF LENDER GROUP,
IN EACH CASE TO THE EXTENT ARISING OR ACCRUING ON OR PRIOR TO THE DATE HEREOF.
9.
Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.
10.
Section Titles.
The section titles in this Agreement are for
convenience of reference only and shall not be construed so as to modify any
provisions of this Agreement.
11
11.
Fees and Expenses.
All fees (other than any fees owed to Agent's
legal counsel), costs and expenses owing to Agent and the Lenders under the
Second Lien Credit Agreement and the other Loan Documents prior to the date
hereof shall continue to accrue as of the date hereof and will become due and
payable upon the earliest of (i) the termination of the "Forbearance Period"
under the First Lien Credit Agreement, (ii) the Maturity Date, and (iii) the
date on which all or any portion of the principal amount of the Obligations is
accelerated in accordance with terms of the Loan Documents.
12.
Counterparts; Facsimile Transmissions.
This Agreement may be
executed in counterparts (and