Partial Releases Borrower shall have the right to obtain partial releases of the Property subject to the following terms and conditions:
(a) There shall not be a Default or Event of Default hereunder or under any other of the Loan Instruments;
(b) Borrower shall submit to Lender a request for partial release of a Property (the “Partial Release”) in form and substance satisfactory to Lender together with a lot and block description of the Residence to be released. In addition, the Partial Release should be accompanied with information necessary for Lender to process the Partial Release, including the name and address of the title insurance company, if any, to whose attention the Partial Release should be directed, numbers that reference the Partial Release (i.e., order numbers, release numbers, assessor’s parcel numbers, etc.) and the date when the Partial Release is to become effective;
(c) If required by Lender, all accrued and unpaid interest on the principal amount of the Loan being prepaid shall be paid at the time such Partial Release is requested; provided that any payment in immediately available funds, received by Lender after one-thirty o’clock, p.m. (1:30 p.m.), Dallas, Texas time, will be deemed to have been made on the next following business day;
(d) Payment to Lender of an amount in cash equal to the Release Price as provided, and as such term is defined in Paragraph 18 of the Specific Loan Terms attached hereto; and
(e) Payment to Lender of all reasonable costs and expenses arising in connection with any Partial Release. Notwithstanding any provision herein to the contrary, at such time as Lender provides to the title company (which is closing the sale of a Property) a “payoff” quote for a Property being released from a Mortgage, in accordance with this Paragraph 20, Borrower shall not be entitled to any further Disbursements under the Loan with respect to such Property. Notwithstanding any provision herein to the contrary, Lots Being Actively Developed cannot be released from a particular Subdivision until all work is completed to finish the Lot.
Partial Release After the First Open Defeasance Date and prior to the First Open Payment Date, and provided no Event of Default exists, Borrower may from time to time obtain a partial release (a “Partial Release”) from the lien of the Mortgage and the Loan Documents of up to two of the individual Mortgaged Properties listed on Schedule 2.17 hereto (each such individual Mortgaged Property to be released, a “Partial Release Property”), provided that all of the following conditions precedent have been satisfied with respect to any such Partial Release of any such Partial Release Property:
(a) No Partial Release of a Partial Release Property will be permitted until after the First Open Defeasance Date or if any Event of Default has occurred and is continuing. No Partial Release of the Partial Release Property will be permitted on or after the First Open Payment Date. No more than two Partial Release Properties may be released during the term of the Loan.
(b) No Partial Release of the Partial Release Parcel will be permitted unless Borrower establishes to Lender’s satisfaction that the Debt Service Coverage Ratio for the remainder of the Mortgaged Property (i.e., exclusive of any income from the Partial Release Property) is and shall continue to be equal to or greater than the greater of (i) the Debt Service Coverage Ratio for the Mortgaged Property calculated immediately prior to the Partial Release (i.e., inclusive of the income from the Partial Release Property), and (ii) 1.30:1.00. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice to Lender given not less than ten (10) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result in the foregoing condition being satisfied upon completion of the Partial Defeasance of such larger Partial Defeasance Amount. No Partial Defeasance, nor any increase in any Partial Defeasance Amount under this paragraph (b) or paragraphs (c) below, shall affect the allocated loan amounts for the remaining Mortgaged Property as set forth on Schedule 2.17.
(c) No Partial Release of the Partial Release Parcel will be permitted unless Borrower establishes to Lender’s satisfaction that the value of the remainder of the Mortgaged Property (as determined by then-current Appraisals prepared by Appraisers approved by Lender, the fees and expenses of which shall be paid by Borrower) is sufficient to satisfy a loan-to-value ratio (based on the outstanding principal balance of the Loan immediately prior to the Partial Release, less the allocated loan amount for the Partial Release Property) which is the lesser of (i) 75% and (ii) the loan-to-value ratio for the Mortgaged Property (inclusive of the Partial Release Property, and based on the outstanding principal balance of the Loan immediately prior to the Partial Release) calculated immediately prior to the Partial Release. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice to Lender given not less than ten (10) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result in the foregoing condition being satisfied upon completion of the Partial Defeasance of such larger Partial Defeasance Amount.
(d) The Partial Release shall be allowed only in connection with a bona fide all-cash sale of the Partial Release Parcel to an unaffiliated third party on arms-length terms and conditions, and upon closing of such sale (and thereafter) shall not be owned, purchased or acquired by Borrower or any Affiliate of Borrower.
(e) Borrower will on the date of the Partial Release (the “Partial Release Date”) complete a Partial Defeasance, pursuant to Section 2.7 hereof, of a portion of the Loan (the “Partial Defeasance Amount” for such Partial Release Property) equal to 125% of the allocated loan amount for the Partial Release Property set forth on Schedule 2.17 hereto; provided, that if Borrower elects in connection with a Partial Defeasance of a Partial Release Property to increase the Partial Defeasance Amount for such Partial Release Property pursuant to the provisions of paragraphs (b) and/or (c) above, the Partial Defeasance Amount for such Partial Release Property shall be such higher amount for purposes of such Partial Defeasance.
(f) Borrower will execute (and Guarantor will consent in writing thereto and reaffirm their obligations under the Loan Documents to which they are a party notwithstanding the Partial Release) and deliver all such amendments to the Loan Documents and other instruments or documents as may be required by Lender (using commercial standards customarily applied with respect to mortgage loans such as the Loan) in order to continue to fully protect Lender’s lien and security interest in the remainder of the Mortgaged Property.
(g) Borrower will cause the Master Homesite Lease(s) to be amended to exclude the Partial Release Property pursuant to documentation reasonably satisfactory to Lender.
(h) Borrower, at its sole cost and expense, shall obtain endorsements to Lender’s loan policy of title insurance satisfactory in form and content to Lender, which endorsements will (a) affirmatively evidence the continued validity of Lender’s first lien position created by the Loan Documents through the date of recordation of the partial release of the Partial Release Property, and (b) insure that the lien created by the Loan Documents remains a valid first lien on the remainder of the Mortgaged Property.
(i) Borrower shall pay for the costs of preparing and recording partial releases, UCC-3 releases, and any loan modification documents, easements, declarations, and/or restrictive covenants required by Lender, Lender’s reasonable attorneys’ fees and costs, all survey charges and costs, all title premiums and costs, documentary stamps incurred in connection with the release of the Partial Release Property in accordance with the requirements contained herein, and all other reasonable out-of-pocket costs, fees, and expenses incurred by Lender in connection with the requested release of the Partial Release Property.
(j) Borrower shall have provided Lender with a Rating Confirmation with respect to the Partial Release.
(k) Borrower shall pay Lender’s reasonable costs and expenses in connection with the Partial Release, as set forth below. Borrower shall pay or reimburse Lender for all reasonable costs and expenses incurred by Lender in connection with such request for a Partial Release, including, but not limited to, the preparation, negotiation and review of any and all materials required to be provided in connection therewith (including Lender’s reasonable attorneys’ fees and expenses).
General Releases (a) For and in consideration of the severance benefits which the Executive will receive under the Employment Severance Agreement to which this Release Agreement is attached, the Executive fully and forever releases and discharges MedSource Technologies, Inc. ("Company") (which for purposes of this Agreement includes its present and former officers, directors, shareholders, employees, agents, investors, administrators, representatives, attorneys, affiliates, divisions, subsidiaries, parent corporations, predecessor and successor corporations and assigns) from any and all liability for any claim, duty, obligation, debt, covenant, cause of action or damages (collectively "Claims"), whether presently known or unknown, suspected or unsuspected, that Executive ever had, may have had or now have arising from any omission, act or fact that has occurred up to and including the date of this Agreement. Such released Claims include, but are not limited to: (i) any Claims arising out of or attributable to Executive's employment or the termination of employment with the Company; (ii) any Claims for wages, severance pay, bonuses, accrued vacation, personal days, holidays, sick days, stock, stock options, units, membership interests, attorneys fees, costs or expenses; (iii) all Claims arising under any agreement, understanding, promise or contract (express or implied, oral or written) between Executive and the Company; (iv) all Claims of wrongful termination, unjust dismissal, defamation, violation of the implied covenant of good faith and fair dealing libel or slander; (v) all Claims arising under tort law; (vi) any Claims arising under any federal, state or local law dealing with discrimination based on age, race, sex, national origin, handicap, religion, disability or sexual preference; (vii) any Claims arising under any federal, state or local constitution, statute, regulation or ordinance to the extent such claims may be validly waived including, without limitation, the Age Discrimination in Employment Act (the "ADEA"), Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Civil Rights Act of 1991, the Family and Medical Leave Act, the Equal Pay Act, the Employee Retirement Income Security Act; and (viii) any Claims for any other loss or damage.
(b) The Company, for itself and affiliated companies and its and their successors and assigns, hereby releases and forever discharges Executive from any and all claims based upon any act, omission or occurrence occurring up to and including the effective date of this Agreement, including, but not limited to, any matter arising out of Executive's employment with the Company.
Waivers and Releases Each of the Guarantors hereby waives notice of, and consents to, any extension of time of payment, renewals, releases of Collateral, delays in obtaining or realizing upon or failures to obtain, perfect, or maintain perfection of, or realize upon Collateral or other indulgence from time to time granted by any of the Credit Parties in respect of this Agreement, the Notes or any other Loan Document. Each of the Guarantors hereby releases each of the Borrowers from all, and agrees not to assert or enforce (whether by or in a legal or equitable proceeding or otherwise), any "claims" (as defined in 11 U.S.C. ss. 101(4)), whether arising under Applicable Law or otherwise, to which such Guarantors are or would be entitled by virtue of their obligations hereunder, any payment made pursuant hereto or the exercise by the Credit Parties of their rights with respect to any Collateral, including any such claims to which such Guarantors may be entitled as a result of any right of subrogation, exoneration or reimbursement. To the extent not released by such Guarantors under this Article 3, each of the Guarantors agrees that it shall not be entitled to any right of subrogation, exoneration, reimbursement or contribution in respect of any Obligations guaranteed hereby. With respect to this Agreement and the Notes, each of the Guarantors hereby waives presentment, protest, demand of payment, notice of dishonor and all other notices and demands whatsoever. Each of the Guarantors further agrees that, as between such Guarantor, on the one hand, and the Credit Parties, on the other hand, (a) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Section 9.2 hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (b) in the event of any declaration of acceleration of such Obligations as provided in Section 9.2 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by each of the Guarantors for purposes of this guarantee. The obligations of the Guarantors under this Article 3 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrowers is rescinded or must otherwise be restored by any holder of any of the Obligations guaranteed hereunder, whether as a result of any Insolvency Proceeding or otherwise, and each Guarantor agrees that it will, jointly and severally, indemnify the Credit Parties on demand for reasonable costs and expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by the Credit Parties in connection with such rescission or restoration. Each Guarantor further agrees with the Borrowers for the benefit of each of their respective creditors (including, without limitation, the Credit Parties) that any payment referred to in this Article 3 by a Guarantor shall constitute a contribution of capital by such Guarantor to such Borrower (or an investment in the equity capital of such Borrower by such Guarantor).
General Release of Claims Employee knowingly and voluntarily releases and forever discharges the Company from any and all claims, rights, causes of action, demands, fees costs, expenses, including attorneys’ fees, and liabilities of any kind whatsoever, whether known or unknown, against the Company, that Employee has, has ever had or may have as of the date of execution of this Agreement and General Release, including, but not limited to, any alleged violation of: ● The Age Discrimination in Employment Act of 1967, as amended; ● The Older Workers Benefit Protection Act of 1990; ● The National Labor Relations Act, as amended; ● Title VII of the Civil Rights Act of 1964, as amended; ● The Civil Rights Act of 1991; ● Sections 1981 through 1988 of Title 42 of the United States Code, as amended; ● The Employee Retirement Income Security Act of 1974, as amended; ● The Immigration Reform and Control Act, as amended; ● The Americans with Disabilities Act of 1990, as amended; ● The Worker Adjustment and Retraining Notification Act, as amended; ● The Occupational Safety and Health Act, as amended; ● The Family and Medical Leave Act of 1993; ● All other federal, state or local civil or human rights laws, whistleblower laws, or any other local, state or federal law, regulations and ordinances; ● All public policy, contract, tort, or common laws; and ● All allegations for costs, fees, and other expenses including attorneys’ fees incurred in these matters. Notwithstanding anything herein to the contrary, the sole matters to which the Agreement and General Release do not apply are: (i) Employee’s rights of indemnification and directors and officers liability insurance coverage to which the Executive was entitled immediately prior to __________ __, 20__ with regard to the Executive’s service as an officer and director of the Company (including, without limitation, under Article 15 of the Severance Agreement); (ii) Employee’s rights under any tax-qualified pension plan or claims for accrued vested benefits under any other employee benefit plan, policy or arrangement maintained by the Company or under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended; (iii) Employee’s rights under Article 7 or Article 11 of the Severance Agreement, as the case may be; and (iv) Employee’s rights as a stockholder of the Company.
Mutual Release of Claims Except as expressly set forth in the last sentence of this Section 14, Consultant and Client, on behalf of themselves, and their respective heirs, executors, officers, directors, employees, consultants, investors, administrators, predecessor and successor corporations, and assigns, hereby fully and forever release each other and their respective heirs, executors, officers, directors, employees, consultants, investors, shareholders, administrators, predecessor and successor corporations, and assigns, from, and agree not to xxx concerning, any claim, duty, obligation or cause of action relating to any matters of any kind, whether presently known or unknown, suspected or unsuspected, that any of them may possess arising from any omissions, acts or facts that have occurred up until and including the date of this Agreement including, without limitation: (a) any and all claims relating to or arising from Consultant's service to the Company and the termination of that service; (b) any and all claims relating to, or arising from, Consultant's right to purchase, or actual purchase of shares of common stock of Client; (c) any and all claims of violation of public policy, discrimination, breach of contract (both express and implied), breach of a covenant of good faith and fair dealing (both express and implied), promissory estoppel, negligent or intentional infliction of emotional distress, negligent or intentional misrepresentation, negligent or intentional interference with contract or prospective economic advantage, unfair business practices, defamation, libel, slander, negligence, personal injury, invasion of privacy and conversion; (d) any and all claims for violation of any federal, state or municipal constitution, law, statute, regulation or ordinance; and (e) any and all claims for attorneys' fees and costs. Client and Consultant agree that the release set forth in this Section 14 will be and remain in effect in all respects as a complete general release as to the matters released. Consultant agrees that this release does not extend to any claims of any nature or type against Consultant based on a breach by Consultant of any fiduciary duty owed to Client or its stockholders or any claims brought by the stockholders of Client against Consultant (whether in their own name or in the name, or on behalf, of Client).
Mutual Releases In consideration of the covenants contained in this Agreement, including, without limitation, RVI’s agreements with respect to the Pension Plan pursuant to paragraph 2 of this Agreement, and other good and valuable consideration (receipt and sufficiency of which is hereby acknowledged) on the Effective Date:
(i) the Debtors, their estates, the Committee, and any party that may acquire standing to prosecute estate claims on their behalf (the “Debtor Releasors”) shall be deemed to forever release RVI and DSW and their officers, directors, agents, attorneys and employees and the Xxxxxxx Releasees (as hereinafter defined) (collectively, the “RVI/DSW Releasees”) from any and all claims and causes of action of any nature whatsoever, including, without limitation, any and all claims pursuant to Chapter 5 of the Bankruptcy Code, that the Debtor Releasors may have against the RVI/DSW Releasees;
(ii) the RVI/DSW Releasees shall be deemed to forever release the Debtor Releasors from any and all claims and causes of action that the RVI/DSW Releasees may have against the Debtor Releasors, except with respect to those claims allowed herein; and
(iii) to the extent approved by the Bankruptcy Court in the context of a Chapter 11 plan of liquidation or reorganization to be proposed in the Debtors’ Chapter 11 cases, to the extent a creditor votes in favor of any plan of liquidation or reorganization proposed by the Debtors and/or the Committee (the “Plan”), or to the fullest extent permitted by law, such creditor shall be deemed to forever release the RVI/DSW Releasees from any and all claims and causes of action that such creditor may have against the RVI/DSW Releasees related to the prepetition and postpetition conduct of the Debtors’ business and the Debtors’ Chapter 11 cases; provided, however, that the foregoing releases shall not limit the rights of any party to enforce the terms of this Agreement. Approval of the release provided in paragraph 9(iii) of this Agreement shall not serve as a condition precedent to the effectiveness of the RVI/DSW Settlement, provided that the Debtors and the Committee shall cooperate in good faith and use their best efforts to obtain such approval. The releases provided under this paragraph 9 shall apply to all rights arising from or pursuant to Chapter 5 of the Bankruptcy Code; for the avoidance of doubt, claims against RVI and/or DSW, including under Chapter 5 of the Bankruptcy Code, shall not be used to offset RVI Claims and/or DSW Claims. As used in this Agreement, the term “Xxxxxxx Releasees” refers to FB II Acquisition Corp., its subsidiaries and other affiliates (excluding the Debtors and any of their subsidiaries which may from time to time exist) and their respective stockholders, directors, managers, officers, employees, agents, attorneys and representatives (excluding such persons of the Debtors and any of their subsidiaries which may from time to time exist).
General Release and Waiver of Claims (a) In consideration for the benefits provided to Former Director under the Separation Agreement (the “Consideration”), Former Director hereby releases and forever discharges and holds the Company, subsidiaries of the Company, affiliates of the Company and each officer, director, employee, partner (general and limited), equity holder, member, manager, agent, subsidiary, affiliate, successor and assign and insurer of any of the foregoing (collectively, the “Releasees”) harmless from all claims or suits, of any nature whatsoever (whether known or unknown), being directly or indirectly related to Former Director’s service with the Company or the termination thereof, including, but not limited to, any claims for notice, pay in lieu of notice, wrongful dismissal, discrimination, harassment, severance pay, bonus, incentive compensation, interest, any claims relating to Former Director’s service as with the Company, through the date hereof.
(b) This release includes, but is not limited to, contract and tort claims, claims arising out of any legal restriction on the Company’s right to terminate its employees and claims or rights under federal, state, and local laws prohibiting employment discrimination, including, but not limited to, claims or rights under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Civil Rights Act of 1991; the Equal Pay Act; the Age Discrimination in Employment Act of 1967 (“ADEA”), including the Older Workers Benefit Protection Act of 1990; the Americans with Disabilities Act; the Employee Retirement Income Security Act; the Worker Adjustment and Retraining Notification Act, and any other federal, state, or local law (statutory or decisional), regulation or ordinance (if and to the extent applicable and as the same may be amended from time to time), or under any public policy, contract or tort, or under common law; or arising under any policies, practices or procedures of the Releasees; or any claim for wrongful discharge, breach of contract, infliction of emotional distress, defamation; or any claim for costs, fees, or other expenses (including attorneys’ fees incurred in these matters), which arose through the date Former Director executes this Agreement.
(c) Former Director acknowledges that the consideration given for this Agreement is in addition to anything of value to which Former Director was already entitled.
(d) Former Director acknowledges that because this Agreement contains a general release of all claims including under the ADEA, and is an important legal document, he has been advised to consult with legal counsel of his own choosing. Former Director may take up to twenty-one (21) days to decide whether to execute this Agreement, and he may revoke his signature by delivering or mailing a signed notice of revocation to the Company at its corporate offices within seven (7) days after executing it.
(e) Notwithstanding the foregoing, this Agreement does not release (i) claims which cannot be lawfully released, (ii) Former Director’s rights of indemnification and directors’ and officers’ liability insurance coverage, if any, to which he is entitled with regard to his service as a director of the Company and (iii) claims with respect to the breach of any covenant to be performed by the Company pursuant to this Agreement or any other claims arising from actions or omissions occurring after the date of this Agreement. Further, the release contained herein does not, and shall not be construed to, release or limit the scope of any existing obligation of the Company with respect to payments to be made under Section 2 of the Separation Agreement.
(f) Former Director acknowledges that there is a risk that after signing this Agreement he may discover losses or claims that are released under this Agreement, but that are presently unknown to him. Former Director assumes this risk and understands that this Agreement shall apply to any such losses and claims. Former Director understands that this Agreement includes a full and final release covering all known and unknown, suspected or unsuspected injuries, debts, claims or damages which have arisen or may have arisen from any matters, acts, omissions or dealings released herein. Former Director acknowledges that by accepting the Consideration, he assumes and waives the risks that the facts and the law may be other than as he believes.
Waiver and Release of Claims In consideration of, and subject to, the payment to be made to me by ____________ (the “Employer”) of the "Severance Payment" and the “Prorated Target Bonus Amount” (in each case as defined in the Severance Agreement, dated as of _________, entered into between me and the Company (the "Agreement")), I hereby waive any claims I may have for employment or re-employment by the Employer or any parent or subsidiary of the Employer after the date hereof, and I further agree to and do release and forever discharge the Employer and any parent or subsidiary of the Employer, and their respective past and present officers, directors, shareholders, insurers, employees and agents from any and all claims and causes of action, known or unknown, arising out of or relating to my employment with the Employer or any parent or subsidiary of the Employer, or the termination thereof, including, but not limited to, wrongful discharge, breach of contract, tort, fraud, the Civil Rights Acts, Age Discrimination in Employment Act as amended by the Older Workers’ Benefits Protection Act, Employee Retirement Income Security Act of 1974, Americans with Disabilities Act, or any other federal, state or local legislation or common law relating to employment or discrimination in employment or otherwise; provided however, that no claim that I may have against the Employer in any capacity other than as an Employer shall be waived pursuant to this Waiver and Release. Notwithstanding the foregoing or any other provision hereof, nothing in this Waiver and Release of Claims shall adversely affect (i) my rights to ongoing Severance Benefits under the terms of the Agreement; (ii) my rights to benefits (other than severance payments or benefits) under plans, programs and arrangements of the Employer or any parent or subsidiary of the Employer; (iii) my rights to indemnification under any indemnification agreement, applicable law or the certificates of incorporation or bylaws of the Employer or any parent or subsidiary of the Employer, (iv) my rights under any director's and officers' liability insurance policy covering me, (v) my workers compensation rights, or (vi) my unemployment insurance rights. I acknowledge that I have signed this Waiver and Release of Claims voluntarily, knowingly, of my own free will and without reservation or duress, and that no promises or representations have been made to me by any person to induce me to do so other than the promise of payment set forth in the first paragraph above and the Employer’s acknowledgment of my rights reserved under the second paragraph above. I understand that this release will be deemed to be an application for benefits under the Agreement and that my entitlement thereto shall be governed by the terms and conditions of the Agreement and any applicable plan. I expressly hereby consent to such terms and conditions. I acknowledge that (i) I am waiving any rights or claims I might have under the Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act (“ADEA”); (ii) I have received consideration beyond that to which I was previously entitled; (iii) I have been given forty-five (45) days to review and consider this Waiver and Release of Claims (unless I have signed a written waiver of such review and consideration period); (iv) I have had the opportunity to consult with an attorney or other advisor of my choice and have been advised by the Company to do so if I choose; and (vi) I have been separately furnished a written schedule of all persons, listed by job title and age, within the affected decisional unit who were selected and not selected for the benefits extended by this Agreement, as may be required by the ADEA. I may revoke this Waiver and Release of Claims seven days or less after its execution by providing written notice to the Employer. I acknowledge that it is my intention and the intention of the Employer in executing this Waiver and Release of Claims that the same shall be effective as a bar to each and every claim, demand and cause of action hereinabove specified. In furtherance of this intention, I hereby expressly waive any and all rights and benefits conferred upon me by the provisions of SECTION 1542 OF THE CALIFORNIA CIVIL CODE, to the extent applicable to me, and expressly I consent that this Waiver and Release of Claims shall be given full force and effect according to each and all of its express terms and provisions, including as well those related to unknown and unsuspected claims, demands and causes of action, if any, as well as those relating to any other claims, demands and causes of action hereinabove specified. SECTION 1542 provides: "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." I acknowledge that I may hereafter discover claims or facts in addition to or different from those which I now know or believe to exist with respect to the subject matter of this Waiver and Release of Claims and which, if known or suspected at the time of executing this Waiver and Release of Claims, may have materially affected this settlement. Finally, I acknowledge that I have read this Waiver and Release of Claims and understand all of its terms. ____________ (the “Old Employer”) and ______________ (the “Executive”) have entered into a Severance Agreement dated ______________ (the “Agreement”). The Executive is transferring employment from the Old Employer to ____________ (the “New Employer”), effective ________. The fourth bullet of the Agreement provides that, if the Executive transfers to the Company or an Affiliate, the Old Employer shall assign the Agreement to the Company or Affiliate. To order to carry out the provisions of the fourth bullet of the Agreement –
General Release (a) For and in consideration of the payments to be made and the promises set forth under this Agreement and the Employment Agreement, I, for myself and for my heirs, dependents, executors, administrators, trustees, legal representatives and assigns (collectively referred to as "Releasors"), hereby forever release, waive and discharge the Company, its affiliates, employee benefit and/or pension plans or funds, insurers, successors and assigns, and all of its or their past, present and/or future directors, officers, trustees, agents, members, partners, counsel, employees, fiduciaries, administrators, representatives and assigns, whether acting on behalf of the Company or its affiliates or in their individual capacities (collectively referred to as "Releasees"), from any and all claims, demands, causes of action, fees and liabilities of any kind whatsoever, whether known or unknown, which Releasors ever had, now have, or hereafter may claim to have against Releasees by reason of any actual or alleged act, omission, transaction, practice, policy, procedure, conduct, occurrence, or other matter up to and including the date of my execution of this Settlement, Waiver and General Release, in connection with, or in any way related to or arising out of, my employment, service as a director, service as a trustee, service as a fiduciary or termination of any of the foregoing with the Company.
(b) Without limiting the generality of the foregoing, this Settlement, Waiver and General Release is intended to and shall release the Releasees from any and all claims, whether known or unknown, which Releasors ever had, now have, or may hereafter claim to have against the Releasees including, but not limited to, (i) any claim of discrimination or retaliation under the Age Discrimination in Employment Act ("ADEA"), Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Employee Retirement Income Security Act of 1974 ("ERISA") or the Family and Medical Leave Act; (ii) any claim under the Tennessee Anti-Discrimination Act, the Tennessee Equal Pay Act the Tennessee Handicap Discrimination Law and the Smokers' Right Law; (iii) any other claim (whether based on federal, state or local law, statutory or decisional) relating to or arising out of my employment, the terms and conditions of such employment the termination of such employment and/or any of the events relating directly or indirectly to or surrounding the termination of such employment, including, but not limited to breach of contract (express or implied), wrongful discharge, tortious interference, detrimental reliance, defamation, emotional distress or compensatory or punitive damages; and (iv) any claim for attorney's fees, costs, disbursements and the like.
(c) Except as provided herein, I agree that I will not from any source or proceeding, seek or accept any award or settlement with respect to any claim or right covered by Section 3(a) or (b) above, including, without limitation, any source or proceeding involving any person or entity, the United States Equal Employment Opportunity Commission or other similar federal or state agency. Except as provided herein or as otherwise required by law, I further agree that I will not, at any time hereafter, commence, maintain, prosecute, participate in as a party, permit to be filed by any other person on my behalf (to the extent it is within my control or permitted by law), or assist in the commencement or prosecution of as an advisor, witness (unless compelled by legal process or court order) or otherwise, any action or proceeding of any kind, judicial or administrative (on my own behalf, on behalf of any other person and/or on behalf of or as a member of any alleged class of persons) in any court, agency, investigative or administrative body against any Releasee with respect to any actual or alleged act, omission, transaction, practice, conduct, occurrence or any other matter up to and including the date of my execution of this Settlement, Waiver and General Release which I released pursuant to Section 3(a) or (b) above. I further represent that, as of the date I sign this Settlement, Waiver and General Release, I have not taken any action encompassed by this Section 3(c). If, notwithstanding the foregoing promises, I violate this Section 3(c), I will indemnify and hold harmless Releasees from and against any and all demands, assessments, judgments, costs, damages, losses and liabilities and reasonable attorneys' fees, costs, disbursements and the like and other reasonable expenses which result from, or are incident to, such violation. Notwithstanding anything herein to the contrary, this Section 3(c) shall not apply to any claims that I may have under the ADEA and shall not apply to the portion of the release provided for in Section 3(a) or (b) relating to the ADEA.
(d) Notwithstanding anything herein to the contrary, the sole matters to which the release and covenants in this Section 3 do not apply are: (i) my rights of indemnification or contribution to which I was entitled immediately prior to the Termination Date under the Company's By-laws, the Company's Certificate of Incorporation or otherwise with regard to my service as an officer or director of the Company (including, without limitation, under Section 11 of the Employment Agreement); (ii) my rights as a stockholder (other than the right to sue, which is released); (iii) my rights under any tax-qualified pensxxx plan or claims for accrued vested benefits any other employee benefit plan, program, policy or arrangement maintained by the Company or under COBRA; or (iv) my rights under the provisions of the Employment Agreement which are intended to survive termination of employment.
(e) I acknowledge and agree that this Settlement, Waiver and General Release constitutes a voluntary waiver of any and all rights and claims I may have as of this date, including rights or claims arising under the ADEA. I have waived rights or claims pursuant to this Settlement, Waiver and General Release in exchange for consideration and one-eighth of the consideration paid to me is attributable to this ADEA portion of the Settlement, Waiver and General Release. I have been advised that I may consult with the attorney of my choosing concerning this Settlement, Waiver and General Release prior to executing it. I also have been allowed a period of at least 21 days to consider the terms of this Settlement, Waiver and General Release, and in the event I decide to execute this Agreement in fewer than 21 days, I have done so with the express understanding that I have been given and declined the opportunity to consider this Settlement, Waiver and General Release for a full 21 days. I also understand that I may revoke the release contained in this Paragraph only (regarding claims under the ADEA), at any time during the seven days following the date of execution of this Agreement, and the release contained in this Paragraph only shall not become effective or enforceable until such revocation period has expired.