If any payment or transfer (or any portion thereof) to Collateral Agent or any Lender shall be subsequently invalidated, declared to be fraudulent or a fraudulent conveyance or preferential, avoided, rescinded, set aside or otherwise required to be returned or repaid, whether in bankruptcy, reorganization, insolvency or similar proceedings involving a Loan Party or otherwise, then such payment or transfer shall immediately be reinstated, without need for any action by any Person, and shall be enforceable against such Loan Party and its successors and assigns as if such payment had never been made (in which case this letter agreement shall in no way impair the claims of Collateral Agent or any Lender with respect to such payment or transfer).
Further, notwithstanding any terms of this letter to the contrary, all equity interests and warrants of Borrower or any of its affiliates held by Collateral Agent, any Lender or any of their respective Affiliates (including, for the avoidance of doubt, the Warrants), and any ancillary agreements directly related thereto, shall remain in full force and effect and shall not be discharged or affected by this letter.
Each of Borrower and each other Loan Party, for itself and on behalf of its officers, directors, subsidiaries, successors and assigns (collectively with Borrower and each Loan Party, collectively, “Releasors” and, each individually, a “Releasor”), hereby jointly and severally releases, acquits and forever discharges each Releasee (as hereinafter defined) from any and all claims, demands, debts, suits, controversies, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever and any and all other liabilities, actions or causes of action of any kind (if any there be), whether absolute or contingent, due or to become due, disputed or undisputed, liquidated or unliquidated, at law or in equity, or known or unknown (collectively, “Claims”) that any Releasor now has, ever had or hereafter may have against Collateral Agent or any Lender in any capacity or any of its officers, directors, employees, agents, attorneys, representatives, subsidiaries, affiliates and shareholders (collectively with Collateral Agent and each Lender, “Releasees”) based on any actions, inactions, transactions, or circumstances that have occurred on or before the date of this letter and that relate in any way to (i) any of the Obligations, Loan Documents or Collateral, (ii) any transaction, act or omission contemplated by or described in any Loan Documents or concluded thereunder, or (iii) any aspect of the dealings or relationships between or among any Releasor, on the one hand, and any Releasee, on the other hand, under or in connection with any Loan Document or any transaction, act or omission contemplated by or described in any Loan Document or concluded thereunder. The provisions of this paragraph shall survive the termination of this letter or any Loan Document and payment in full of the Obligations. Each of Borrower and each other Loan Party, for itself and on behalf of the other Releasors, hereby unconditionally and irrevocably agrees that it will not sue any Releasee on the basis of any Claim released, remised and discharged pursuant to the foregoing provisions of this paragraph, and if Borrower or any other Loan Party or any other Releasor violates the foregoing covenant, each of Borrower and each other Loan Party, for itself and its successors and assigns, agrees to pay, in addition to such other damages as any Releasee may sustain as a result of such violation, all attorneys’ fees and other costs incurred by any Releasee as a result of such violation. EACH OF BORROWER AND EACH OTHER LOAN PARTY EXPRESSLY WAIVES AND RELEASES ANY AND ALL PROVISIONS, RIGHTS AND BENEFITS UNDER ANY APPLICABLE LAW WHICH, IN THE ABSENCE OF SUCH WAIVER, WOULD BAR ITS RELEASE OF ANY CLAIMS WHICH IT DOES NOT KNOW OF (NOR SUSPECT TO EXIST) IN ITS FAVOR AT THE TIME OF EXECUTING THIS LETTER.
Collateral Agent and the Lenders hereby waive the requirements pursuant to Section 2.2(d)(i) of the Loan Agreement that the Borrower provide Collateral Agent with written notice at least five (5) Business Days prior to the date of any prepayment of the Term Loans.
This letter shall terminate immediately at 2:00 p.m. (Eastern time) on September 24, 2021 if the Payoff Effective Time has not occurred before such time.