Partial Releases (a) At any time prior to the Maturity Date, Administrative Agent shall, at the Borrower's request, issue partial releases from the Lien of a Mortgage and other Security Documents of Land Held for Development, Lots Under Development, one or more Housing Units, one or more Finished Lots or other Collateral; provided, however, that prior to or simultaneously with each such partial release all of the following conditions shall be satisfied:
(i) the sales price for any sale, transfer or conveyance must be at the Fair Market Value for such Collateral;
(ii) [intentionally omitted];
(iii) if Collateral constituting more than 10% of the Borrowing Base in the Borrowing Base Certificate most recently delivered is to be released from the Mortgages in any month, Borrower shall have delivered to the Administrative Agent a Borrowing Base Certificate demonstrating on a pro forma basis, and the Administrative Agent shall have determined to its reasonable satisfaction, that the outstanding principal balance of the Loans together with the aggregate amount of all Letter of Credit Liabilities will not exceed the Maximum Loan Availability after giving effect to such request and any Release Consideration to be paid and/or the acceptance of any Property as an additional or replacement Borrowing Base Property to be given concurrently with such request;
(iv) the Borrower requests in writing to the Administrative Agent a payoff letter for the Collateral it seeks to release from the Mortgage not less than three (3) Business Days prior to the date such payoff is needed, together with all data reasonably necessary to support the Borrower’s being entitled to the partial release, including, without limitation, a legal description for the Collateral to be released and a partial release document prepared by the Borrower, all at the Borrower’s expense and all in form and content satisfactory to the Administrative Agent;
(v) the Borrower shall submit to the Administrative Agent within five (5) Business Days after the closing of the sale, a photocopy of the final signed closing statement with respect to the sale of such Collateral, it being understood that the Borrower’s failure to submit a closing statement within such time period shall not constitute a Default hereunder;
(vi) the Borrower shall pay all costs and expenses of the Administrative Agent, including, without limitation, reasonable legal fees and expenses incurred by the Administrative Agent in connection with any partial release of the Mortgage;
(vii) the Borrower pays, or causes to be paid, to the Administrative Agent the Release Consideration for any Collateral to be released from the Mortgages under this Section 4.2(a), which Release Consideration shall be applied to payment of any outstanding Revolving Loans hereunder, and to the extent no Revolving Loans are outstanding or if following payment of outstanding Revolving Loans additional funds remain, such Release Consideration shall be returned to the Borrower within one (1) Business Day of receipt of such proceeds by the Administrative Agent; and
(viii) no monetary Default, material non-monetary Default or Event of Default exists. Notwithstanding the provisions of Section 4.2(a)(viii), during the existence of an Event of Default, provided that (i) the conditions set forth in Sections 4.2(a)(i) through (a)(vi) are satisfied, and (ii) Borrower pays, or causes to be paid, to the Administrative Agent the Release Consideration required to be paid under Section 4.2(a)(vii) (which the parties agree shall be applied in accordance with Section 11.5), then the Administrative Agent shall issue partial releases from the Lien of a Mortgage and other Security Documents for (y) the sale, transfer or conveyance by the Borrower of any Presold Housing Unit, Lots Under Development, Finished Lots or Land Held for Development pursuant to a valid, bona-fide agreement between the Borrower and a third party entered into prior to the occurrence of the applicable Event of Default, or (z) the sale, transfer or conveyance by the Borrower of any other Housing Unit, Lots Under Development, Finished Lots or Land Held for Development with the prior written consent of the Administrative Agent in its sole discretion.
(i) With respect to any Collateral other than Housing Units, upon five (5) Business Days prior written request by the Borrower, the Administrative Agent will execute all partial release documents for such Collateral other than Housing Units released from Mortgages, and (ii) with respect to any Housing Units, once per month, the Administrative Agent will execute all partial release documents for such Housing Units released from Mortgages during the preceding month, which partial release documents will be executed on the forms of release previously prepared and forwarded by the Borrower as set forth above or on such other release documentation in form and substance reasonably acceptable to the Administrative Agent and customarily used in the applicable jurisdiction.
(c) Upon request by the Borrower and without payment of any release price or Release Consideration, or other amount, the Administrative Agent shall also release land from the Lien of the Mortgages and other Security Documents or subordinate such Liens, all as necessary to effect necessary dedications of roadways or utility and service areas to Governmental Authorities or utility companies, to convey common areas to homeowners or condominium associations, and to allow the recordation of plats, easements and declarations to the extent such are common or reasonably necessary for the development of Collateral for residential purposes, and Borrower shall pay all costs and expenses of the Administrative Agent including, without limitation, reasonable legal fees incurred by the Administrative Agent in connection with any such release. Releases of Collateral from the Mortgages and other Security Documents shall not affect or impair the Lien of the Mortgages and the Administrative Agent’s Lien and security interests created by the other Loan Documents as to the Collateral and other property encumbered by the Mortgages and the other Loan Documents not theretofore released, and said Liens and security interests shall continue in full force and effect as to the Collateral and such other property not released. Except as set forth in this Section 4.2, no Collateral shall be released from the Lien of a Mortgage applicable thereto. Lenders hereby irrevocably authorize the Administrative Agent to release Collateral in accordance with this Section 4.2.
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.
Mutual Releases (a) Effective upon the Settlement Effective Time, the TERP Parties, for themselves and on behalf of their respective trustees, executors, estates, heirs and assigns (the “TERP Releasing Parties”) hereby fully and forever release, discharge and acquit SunEdison and SunEdison’s trustees, executors, estates, heirs and assigns, and each of their respective current and former partners, agents, officers, directors, employees, representatives, attorneys, successors and predecessors, in each case solely in their capacities as such (other than TERP and GLBL) (the “SunEdison Released Parties”) from any and all claims, actions, suits, debts, covenants, contracts, controversies, agreements, promises, judgments, executions, rights, damages, costs, expenses, claims, and any and all demands and causes of action of every kind, nature and character whatsoever, at law or in equity, whether based on contract (including, without limitation, quasi contract or estoppel), statute, regulation, tort (including, without limitation, intentional torts, fraud, misrepresentation, defamation, breaches of fiduciary duty, recklessness, gross negligence, willful misconduct or negligence) or otherwise, accrued or unaccrued, known or unknown, matured, unmatured, liquidated or unliquidated, certain or contingent (collectively, “Claims”), that the TERP Releasing Parties ever had, now have or may hereafter have against the SunEdison Released Parties for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world through the Settlement Effective Time, including but not limited to the TERP Claims; provided that the TERP Releasing Parties do not release, discharge or acquit the SunEdison Released Parties from (i) any Claim to enforce, or for damages for breach of, this Agreement, the Jointly Supported Transaction Agreement, the Voting and Support Agreement, any agreement not rejected or terminated pursuant to Section 2(c) and 2(e), or any other contract, instrument, release or other agreement or document created or entered into in connection with this Agreement or the Jointly Supported Transaction, or (ii) the Preserved Comprehensive Unsecured Claim and the Preserved DE Shaw Unsecured Claim or (iii) any Claim against any direct or indirect subsidiary of SunEdison Inc that is not a SunEdison Party and that commences any action or proceeding with respect to a Claim against a TERP Released Party (as defined below) other than a Claim described in the proviso in Section 4(b)(i) below.
(b) Effective upon the Settlement Effective Time, the SunEdison Parties, for themselves and on behalf of their respective trustees, executors, estates, heirs and assigns (the “SunEdison Releasing Parties”) hereby fully and forever release, discharge and acquit TERP and TERP’s trustees, executors, estates, heirs and assigns, and each of their respective current and former partners, agents, officers, directors, employees, representatives, attorneys, successors and predecessors, in each case solely in their capacities as such (other than SunEdison and GLBL) (the “TERP Released Parties”) from any and all Claims that the SunEdison Releasing Parties ever had, now have or may hereafter have against the TERP Released Parties for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world through the Settlement Effective Time, including but not limited to the SunEdison Claims; provided that the SunEdison Releasing Parties do not release, discharge or acquit the TERP Released Parties from (i) any Claim to enforce, or for damages for breach of, this Agreement, the Jointly Supported Transaction Agreement, the Voting and Support Agreement, any agreement not rejected or terminated pursuant to Section 2(c) and 2(e), or any other contract, instrument, release or other agreement or document created or entered into in connection with this Agreement or the Jointly Supported Transaction or (ii) any Claim against any direct or indirect subsidiary of TERP Inc that is not a TERP Party and that commences any action or proceeding with respect to a Claim against a SunEdison Released Party (as defined below) other than a Claim described in the proviso at Section 4(a)(i) or 4(a)(ii) above.
(c) The Parties hereby agree to hold in abeyance any and all discovery requests related to (i) any Claims released in this Section 4 unless and until this Agreement is terminated in accordance with its terms, and (ii) the Preserved Comprehensive Unsecured Claim until the Approval Order has been entered; provided that the SunEdison Parties reserve the right to make discovery requests relating to Claims brought against SunEdison by entities other than the TERP Releasing Parties and, subject to the potential applicability of the automatic stay, the TERP Parties reserve the right to make discovery requests relating to Claims brought against TERP by entities other than the SunEdison Releasing Parties.
(d) Notwithstanding anything to the contrary in this Section 4, the Parties’ rights, if any, to access any insurance policies, including those under which SunEdison or TERP is insured, or the proceeds thereof in their respective capacities as insureds thereunder, including, but not limited to, (i) directors’ and officers’ insurance policies, (ii) employee liability insurance policies, (iii) property, casualty and liability insurance policies and (iv) module and other warranty insurance policies, shall not be affected or diminished by this Agreement (even if Claims related thereto are released against the SunEdison Released Parties or the TERP Released Parties pursuant to this Agreement), and the rights and defenses of all Parties are reserved with respect thereto.
(e) For the avoidance of doubt, nothing in this Agreement is intended, or shall be construed, to release any Claims by or on behalf of (i) the TERP Parties against TERP’s own current and former partners, agents, officers, directors, employees, representatives, attorneys, successors and predecessors acting in their capacities as such (regardless of whether such persons are or were also officers, directors or employees of SunEdison), or (ii) the SunEdison Parties against SunEdison’s own current and former partners, agents, officers, directors, employees, representatives, attorneys, successors and predecessors acting in their capacities as such (regardless of whether such persons are or were also officers, directors or employees of TERP).
(f) Effective upon the entry of the Approval Order, (i) the TERP Releasing Parties hereby fully and forever release, discharge and acquit any Buyer of any and all renewable energy projects owned by SunEdison (the “SunEdison Projects”) from any and all Claims arising out of, in connection with, or relating to their acquisition of such SunEdison Projects (which shall include, without limitation, the release and waiver of any right of first offer or similar rights held by the TERP Releasing Parties in connection with any SunEdison Projects, and shall extend to the SunEdison Project companies themselves; provided that it is agreed and stipulated that, prior to the Settlement Effective Time upon which time the releases in Section 4(a) shall become effective, such releases and waivers shall not reduce, diminish or modify TERP’s Claims against the Debtors in the Chapter 11 Cases in any respect, with such Claims to be treated as if such releases and waivers were never granted, other than any acquisition of SunEdison Projects in connection with such Buyer’s or its affiliates’ direct or indirect acquisition of all or a part of the equity or assets of TERP or GLBL (under a sale, plan of reorganization, plan of liquidation or otherwise), and (ii) except to the extent previously provided by a Final Order of the Bankruptcy Court, the SunEdison Releasing Parties hereby fully and forever release, discharge and acquit any Buyer of a UK Project Company (and, effective upon the consummation of Buyer’s acquisition of the UK Project Companies, the UK Project Companies themselves) from any and all Claims in respect of prepetition transfers from SunEdison to the UK Project Companies, including any Avoidance Actions. For purposes of this Section 4(f), (A) “Buyer” means any prospective or actual third-party buyer of a SunEdison Project or UK Project Company, as applicable, or any debt or equity investor in such entity, in each case, solely in such capacity, (B) the “UK Project Companies” means the companies set forth on Exhibit A attached to the Debtors’ Motion for Order Pursuant to Bankruptcy Code Sections 105 and 363(b) and Bankruptcy Rules 6004 and 9019 Authorizing and Approving the Release of Certain Claims in Connection with Certain UK Sales [Docket No. 2512]. Notwithstanding anything to the contrary in this Agreement, the releases contained in this Section 4(f) shall survive the termination of this Agreement.
