Common use of Release of Claims and Defenses Clause in Contracts

Release of Claims and Defenses. (a) Subject to the rights of the Committee or any other party in interest as provided in the following subparagraph, the Borrower and the Guarantor, each in its individual capacity, forever releases, waives and discharges the Prepetition Agent and the Prepetition Lenders (whether in its respective prepetition or postpetition capacity), together with its respective officers, directors, employees, agents, attorneys, professionals, affiliates, subsidiaries, assigns and/or successors (collectively, the “Released Parties”), from any and all claims and causes of action arising out of, based upon or related to, in whole or in part, any of the Prepetition Financing Documents, any aspect of the prepetition relationship between the Borrower or the Guarantor, on the one hand, and any or all of the Released Parties, on the other hand, relating to any of the Prepetition Financing Documents or any transaction contemplated thereby, or any acts or omissions by any or all of the Released Parties in connection with any of the Prepetition Financing Documents or such prepetition relationship, including, without limitation, any claims or defenses as to the extent, validity, priority or perfection of the Prepetition Liens or Prepetition Indebtedness, “lender liability” claims and causes of action, any actions, claims or defenses under chapter 5 of the Bankruptcy Code or any other claims and causes of action (all such claims, defenses and other actions described in this subparagraph are collectively defined as the “Claims and Defenses”). Nothing contained in this subparagraph shall affect the rights of any Committee or any other party in interest to undertake any action, on its own behalf, or on behalf of the Borrower’s or the Guarantor’s estate, with respect to the Claims and Defenses, including, without limitation, any investigation or prosecution of, Claims and Defenses that is permitted in subparagraphs (b) and (c) of this Paragraph. (b) Notwithstanding anything contained herein to the contrary and subject to Paragraph 10, the extent, validity, priority, perfection and enforceability of the Prepetition Indebtedness and Prepetition Liens, and all acknowledgments, admissions, confirmations, and releases of the Borrower or the Guarantor above, are for all purposes subject to the rights of any party in interest, other than a Debtor, but including the Committee, a Chapter 7 or Chapter 11 trustee, to seek to invalidate, or otherwise challenge (including a determination of the validity, priority, and extent of ) the Prepetition Indebtedness or Prepetition Liens, including by properly filing a complaint pursuant to Bankruptcy Rule 7001 or by otherwise properly asserting a contested matter (any of these actions, a “Challenge”); provided, however, that, to the extent not previously resolved by confirmation and consummation of any chapter 11 plan of reorganization, any such Challenge must be commenced or asserted in this Court no later than February 12, 2009. Except to the extent that a Challenge is timely commenced within such time period (or such timely asserted Challenge does not result in a final and non-appealable order of this Court that is inconsistent with clauses (i) through (iv) of subparagraph (c) of this Paragraph), then any and all Claims and Defenses against any of the Released Parties shall be, without further notice to or order of the Court, deemed to have been forever relinquished, released and waived as to the Committee and all other people and entities, and if such Challenge is timely asserted on or before such date, any and all Claims and Defenses that are not expressly asserted in such Challenge shall be deemed, immediately and without further action, to have been forever relinquished, released and waived as to the Committee and all other people and entities. (c) Except to the extent that a Challenge is timely commenced within such time period, or such timely asserted Challenge does not result in a final and non-appealable order of this Court that is inconsistent with clauses (i) through (iv) of this subparagraph, then, without the requirement or need to file any proof of claim with respect thereto, (i) the Prepetition Indebtedness shall constitute allowed, secured claims for all purposes in the Borrower’s and the Guarantor’s Chapter 11 Cases and any subsequent proceedings under the Bankruptcy Code, including, without limitation, any chapter 7 proceedings if the Borrower’s or the Guarantor’s Chapter 11 Case is converted to a case under chapter 7 of the Bankruptcy Code (a “Successor Case”), (ii) the Prepetition Liens shall be deemed legal, valid, binding, enforceable, perfected, not subject to subordination (except as to the Postpetition Liens and as otherwise specified in this Interim Order, the Postpetition Credit Agreement or the other Postpetition Financing Documents and the Prepetition Financing Documents) or avoidance for all purposes in the Borrower’s and the Guarantor’s Chapter 11 Cases and any Successor Case, (iii) the release of the Claims and Defenses against the Released Parties shall be binding on all parties in interest in the Borrower’s and the Guarantor’s Chapter 11 Cases and any Successor Case, and (iv) the Prepetition Indebtedness, the Prepetition Liens (as applicable), releases of the Claims and Defenses against the Released Parties (as applicable), and prior payments on account of or with respect to the Prepetition Indebtedness shall not be subject to any other or further claim, cause of action, objection, contest, setoff, defense or challenge by any party in interest for any reason, including, without limitation, by any successor to or estate representative of any Debtor.

Release of Claims and Defenses. (a) Subject to the rights of the any Committee or any other party in interest as provided in the following subparagraph, the Borrower and the Guarantor, each in its individual capacity, forever releases, waives and discharges the Prepetition Agent and the Prepetition Lenders (whether in its respective prepetition or postpetition capacity), together with its respective officers, directors, employees, agents, attorneys, professionals, affiliates, subsidiaries, assigns and/or successors (collectively, the “Released Parties”), from any and all claims and causes of action arising out of, based upon or related to, in whole or in part, any of the Prepetition Financing Documents, any aspect of the prepetition relationship between the Borrower or the GuarantorGuarantor relating to any of the Prepetition Financing Documents or any transaction contemplated thereby, on the one hand, and any or all of the Released Parties, on the other hand, relating to any of the Prepetition Financing Documents or any transaction contemplated thereby, or any other acts or omissions by any or all of the Released Parties in connection with any of the Prepetition Financing Documents or such their prepetition relationshiprelationship with the Borrower or any affiliate thereof relating to any of the Prepetition Financing Documents or any transaction contemplated thereby, including, without limitation, any claims or defenses as to the extent, validity, priority or perfection of the Prepetition Liens or Prepetition Indebtedness, “lender liability” claims and causes of action, any actions, claims or defenses under chapter 5 of the Bankruptcy Code or any other claims and causes of action (all such claims, defenses and other actions described in this subparagraph are collectively defined as the “Claims and Defenses”). Nothing contained in this subparagraph shall affect the rights of any Committee or any other party in interest to undertake any action, on its own behalf, or on behalf of the Borrower’s or the Guarantor’s estate, with respect to the Claims and Defensesto, including, without limitation, any investigation or prosecution of, Claims and Defenses that is permitted in subparagraphs (b) and (c) of this Paragraph. (b) Notwithstanding anything contained herein to the contrary and subject to Paragraph 1028, the extent, validity, priority, perfection and enforceability of the Prepetition Indebtedness and Prepetition Liens, and all acknowledgments, admissions, confirmations, and releases of the Borrower or the Guarantor above, are for all purposes subject to the rights of any party in interest, other than a Debtor, but including the Committee, a Chapter 7 or Chapter 11 trustee, to seek to invalidate, or otherwise challenge (including a determination of the validity, priority, and extent of any lien of) the Prepetition Indebtedness or Prepetition Liens, including by properly filing a complaint pursuant to Bankruptcy Rule 7001 or by otherwise properly asserting a contested matter (any of these actions, a “Challenge”); provided, however, that, to the extent not previously resolved by confirmation and consummation of any chapter 11 plan of reorganization, any such Challenge must be commenced or asserted in this Court no later than February 12, 2009within ninety (90) days after appointment of the Committee of unsecured claimholders under section 1102 of the Bankruptcy Code. Except to the extent that a Challenge is timely commenced within such time period (or such timely asserted Challenge does not result in a final and non-appealable order of this Court that is inconsistent with clauses (i) through (iv) of subparagraph (c) of this Paragraph), then any and all Claims and Defenses against any of the Released Parties shall be, without further notice to or order of the Court, deemed to have been forever relinquished, released and waived as to the such Committee and all other people and entitiesperson or entity, and if such Challenge is timely asserted on or before such date, any and all Claims and Defenses that are not expressly asserted in such Challenge shall be deemed, immediately and without further action, to have been forever relinquished, released and waived as to the such Committee and all other people and entitiesperson or entity. (c) Except to the extent that a Challenge is timely commenced within such time period, or such timely asserted Challenge does not result in a final and non-appealable order of this Court that is inconsistent with clauses (i) through (iv) of this subparagraph, then, without the requirement or need to file any proof of claim with respect thereto, (i) the Prepetition Indebtedness shall constitute allowed, secured claims for all purposes in the Borrower’s and the Guarantor’s Chapter 11 Cases and any subsequent proceedings under the Bankruptcy Code, including, without limitation, any chapter 7 proceedings if the Borrower’s or the Guarantor’s Chapter 11 Case is converted to a case under chapter 7 of the Bankruptcy Code (a “Successor Case”), (ii) the Prepetition Liens (as applicable) shall be deemed legal, valid, binding, enforceable, perfected, not subject to subordination (except as to the Postpetition Liens and as otherwise specified in this Interim Final Order, the Postpetition Credit Agreement DIP Financing Term Sheet or the other Postpetition Financing Documents and the Prepetition Financing Documents) or avoidance for all purposes in the Borrower’s and the Guarantor’s Chapter 11 Cases Case and any Successor Case, (iii) the release of the Claims and Defenses against the Released Parties shall be binding on all parties in interest in the Borrower’s and the Guarantor’s Chapter 11 Cases Case and any Successor Case, and (iv) the Prepetition Indebtedness, the Prepetition Liens (as applicable), releases of the Claims and Defenses against the Released Parties (as applicable), and prior payments on account of or with respect to the Prepetition Indebtedness shall not be subject to any other or further claimclaims, cause of action, objection, contest, setoff, defense or challenge by any party in interest for any reason, including, without limitation, by any successor to or estate representative of any Debtor.

Release of Claims and Defenses. (a) Subject to entry of the Final Order and the rights of the any Committee or any other party in interest as provided in the following subparagraph, the Borrower and the Guarantor, each in its individual capacity, capacity forever releases, waives and discharges the Prepetition Agent and the Prepetition Lenders (whether in its respective prepetition or postpetition capacity), together with its respective officers, directors, employees, agents, attorneys, professionals, affiliates, subsidiaries, assigns and/or successors (collectively, the “Released Parties”), from any and all claims and causes of action arising out of, based upon or related to, in whole or in part, any of the Prepetition Financing Documents, any aspect of the prepetition relationship between the Borrower relating to any of the Prepetition Financing Documents or the Guarantorany transaction contemplated thereby, on the one hand, and any or all of the Released Parties, on the other hand, relating to any of the Prepetition Financing Documents or any transaction contemplated thereby, or any other acts or omissions by any or all of the Released Parties in connection with any of the Prepetition Financing Documents or such their prepetition relationshiprelationship with the Borrower or any affiliate thereof relating to any of the Prepetition Financing Documents or any transaction contemplated thereby, including, without limitation, any claims or defenses as to the extent, validity, priority or perfection of the Prepetition Liens or Prepetition Indebtedness, “lender liability” claims and causes of action, any actions, claims or defenses under chapter 5 of the Bankruptcy Code or any other claims and causes of action (all such claims, defenses and other actions described in this subparagraph Paragraph are collectively defined as the “Claims and Defenses”). Nothing contained in this subparagraph shall affect the rights of any Committee or any other party in interest to undertake any action, on its own behalf, or on behalf of the Borrower’s or the Guarantor’s estate, with respect to the Claims and Defensesto, including, without limitation, any investigation or prosecution of, Claims and Defenses that is permitted in subparagraphs (b) and (c) of this Paragraph. (b) Notwithstanding anything contained herein to the contrary and subject to Paragraph 1028, the extent, validity, priority, perfection and enforceability of the Prepetition Indebtedness Indebtedness, and Prepetition Liens, and all acknowledgments, admissions, confirmations, and releases of the Borrower or the Guarantor above, are for all purposes subject to the rights of any party in interest, other than a Debtor, but including the Committee, a Chapter 7 or Chapter 11 trustee, to seek to invalidate, or otherwise challenge (including a determination of the validity, priority, and extent of any lien of) the Prepetition Indebtedness or Prepetition Liens, including by properly filing a complaint pursuant to Bankruptcy Rule 7001 or by otherwise properly asserting a contested matter (any of these actions, a “Challenge”); provided, however, that, to the extent not previously resolved by confirmation and consummation of any chapter 11 plan of reorganization, any such Challenge must be commenced or asserted in this Court within sixty (60) days after appointment of the Committee of unsecured claimholders under section 1102 of the Bankruptcy Code, but in no event later than February 12, 2009seventy-five (75) days after entry of this Interim Order. Except to the extent that a Challenge is timely commenced within such time period (or such timely asserted Challenge does not result in a final and non-appealable order of this Court that is inconsistent with clauses (i) through (iv) of subparagraph (c) of this Paragraph), then any and all Claims and Defenses against any of the Released Parties shall be, without further notice to or order of the Court, deemed to have been forever relinquished, released and waived as to the such Committee and all other people and entitiesperson or entity, and if such Challenge is timely asserted on or before such date, any and all Claims and Defenses that are not expressly asserted in such Challenge shall be deemed, immediately and without further action, to have been forever relinquished, released and waived as to the such Committee and all other people and entitiesperson or entity. (c) Except to the extent that a Challenge is timely commenced within such time period, or such timely asserted Challenge does not result in a final and non-appealable order of this Court that is inconsistent with clauses (i) through (iv) of this subparagraph, then, without the requirement or need to file any proof of claim with respect thereto, (i) the Prepetition Indebtedness shall constitute allowed, secured claims for all purposes in the Borrower’s and the Guarantor’s Chapter 11 Cases Case and any subsequent proceedings under the Bankruptcy Code, including, without limitation, any chapter 7 proceedings if the Borrower’s or the Guarantor’s Chapter 11 Case is converted to a case under chapter 7 of the Bankruptcy Code (a “Successor Case”), (ii) the Prepetition Liens (as applicable) shall be deemed legal, valid, binding, enforceable, perfected, not subject to subordination (except as to the Postpetition Liens and as otherwise specified in this Interim Order, the Postpetition Credit Agreement or the other Postpetition Financing Documents and the Prepetition Financing Documents) or avoidance for all purposes in the Borrower’s and the Guarantor’s Chapter 11 Cases Case and any Successor Case, (iii) the release of the Claims and Defenses against the Released Parties shall be binding on all parties in interest in the Borrower’s and the Guarantor’s Chapter 11 Cases Case and any Successor Case, and (iv) the Prepetition Indebtedness, the Prepetition Liens (as applicable), releases of the Claims and Defenses against the Released Parties (as applicable), and prior payments on account of or with respect to the Prepetition Indebtedness shall not be subject to any other or further claimclaims, cause of action, objection, contest, setoff, defense or challenge by any party in interest for any reason, including, without limitation, by any successor to or estate representative of any Debtor. Nothing in this Interim Order shall confer standing upon the Committee or any other person or entity to bring, assert, commence, continue, prosecute or litigate the Claims and Defenses against any Released Party.

Release of Claims and Defenses. (a) Subject to entry of the Final Order and the rights of the Committee or any other party in interest as provided in the following subparagraph, the Borrower and the Guarantor, each in its individual capacity, forever releases, waives and discharges the Prepetition Agent and the Prepetition Lenders (whether in its respective prepetition or postpetition capacity), together with its respective officers, directors, employees, agents, attorneys, professionals, affiliates, subsidiaries, assigns and/or successors (collectively, the “Released Parties”), from any and all claims and causes of action arising out of, based upon or related to, in whole or in part, any of the Prepetition Financing Documents, any aspect of the prepetition relationship between the Borrower or the GuarantorGuarantor relating to any of the Prepetition Financing Documents or any transaction contemplated thereby, on the one hand, and any or all of the Released Parties, on the other hand, relating to any of the Prepetition Financing Documents or any transaction contemplated thereby, or any other acts or omissions by any or all of the Released Parties in connection with any of the Prepetition Financing Documents or such their prepetition relationshiprelationship with the Borrower or any affiliate thereof relating to any of the Prepetition Financing Documents or any transaction contemplated thereby, including, without limitation, any claims or defenses as to the extent, validity, priority or perfection of the Prepetition Liens or Prepetition Indebtedness, “lender liability” claims and causes of action, any actions, claims or defenses under chapter 5 of the Bankruptcy Code or any other claims and causes of action (all such claims, defenses and other actions described in this subparagraph are collectively defined as the “Claims and Defenses”). Nothing contained in this subparagraph shall affect the rights of any the Committee or any other party in interest to undertake any action, on its own behalf, or on behalf of the Borrower’s or the Guarantor’s estate, with respect to the Claims and Defensesto, including, without limitation, any investigation or prosecution of, Claims and Defenses that is permitted in subparagraphs (b) and (c) of this Paragraph. (b) Notwithstanding anything contained herein to the contrary and subject to Paragraph 10contrary, the extent, validity, priority, perfection and enforceability of the Prepetition Indebtedness Indebtedness, and Prepetition Liens, and all acknowledgments, admissions, confirmations, and releases of the Borrower or the Guarantor Gurantor above, are for all purposes subject to the rights of any party in interest, other than a Debtor, but including the Committee, a Chapter 7 or Chapter 11 trustee, to seek to invalidate, or otherwise challenge (including a determination of the validity, priority, and extent of any lien of) the Prepetition Indebtedness or Prepetition Liens, including by properly filing a complaint pursuant to Bankruptcy Rule 7001 or by otherwise properly asserting a contested matter (any of these actions, a “Challenge”); provided, however, that, to the extent not previously resolved by confirmation and consummation of any chapter 11 plan of reorganization, any such Challenge must be commenced or asserted in this Court no later than February 12, 2009within ninety (90) days after appointment of the Committee. Except to the extent that a Challenge is timely commenced within such time period (or such timely asserted Challenge does not result in a final and non-appealable order of this Court that is inconsistent with clauses (i) through and (ivii) of subparagraph (c) of this Paragraph), then any and all Claims and Defenses against any of the Released Parties shall be, without further notice to or order of the Court, deemed to have been forever relinquished, released and waived as to the such Committee and all other people and entitiesperson or entity, and if such Challenge is timely asserted on or before such date, any and all Claims and Defenses that are not expressly asserted in such Challenge shall be deemed, immediately and without further action, to have been forever relinquished, released and waived as to the such Committee and all other people and entitiesperson or entity. (c) Except to the extent that a Challenge is timely commenced within such time period, or such timely asserted Challenge does not result in a final and non-appealable order of this Court that is inconsistent with clauses (i) through and (ivii) of this subparagraph, then, without the requirement or need to file any proof of claim with respect thereto, (i) the Prepetition Indebtedness shall constitute allowed, secured claims for all purposes in the Borrower’s and the Guarantor’s Chapter 11 Cases and any subsequent proceedings under the Bankruptcy Code, including, without limitation, any chapter 7 proceedings if the Borrower’s or the Guarantor’s Chapter 11 Case is converted to a case under chapter 7 of the Bankruptcy Code (a “Successor Case”), (ii) the Prepetition Liens (as applicable) shall be deemed legal, valid, binding, enforceable, perfected, not subject to subordination (except as to the Postpetition Liens and as otherwise specified in this Interim Order, the Postpetition Credit Agreement or DIP Financing Term Sheet, the other Postpetition Financing Documents and the Prepetition Financing Documents) or avoidance for all purposes in the Borrower’s and or the Guarantor’s Chapter 11 Cases Case and any Successor Case, (iii) the release of the Claims and Defenses against the Released Parties shall be binding on all parties in interest in the Borrower’s and the Guarantor’s Chapter 11 Cases Case and any Successor Case, and (iv) the Prepetition Indebtedness, the Prepetition Liens (as applicable), releases of the Claims and Defenses against the Released Parties (as applicable), and prior payments on account of or with respect to the Prepetition Indebtedness shall not be subject to any other or further claimclaims, cause of action, objection, contest, setoff, defense or challenge by any party in interest for any reason, including, without limitation, by any successor to or estate representative of any Debtor.