THAT ITS RELEASE SET FORTH ABOVE MAY BE PLEADED AS A FULL AND COMPLETE
DEFENSE AND MAY BE USED AS A BASIS FOR AN INJUNCTION
5
AGAINST ANY ACTION, SUIT OR OTHER PROCEEDING WHICH MAY BE INSTITUTED, PROSECUTED
OR ATTEMPTED IN BREACH OF THE PROVISIONS OF SUCH RELEASE.
(C)
BORROWER AGREES THAT NO FACT, EVENT,
CIRCUMSTANCE, EVIDENCE OR TRANSACTION WHICH COULD NOW BE ASSERTED OR WHICH MAY
HEREAFTER BE DISCOVERED SHALL AFFECT IN ANY MANNER THE FINAL, ABSOLUTE AND
UNCONDITIONAL NATURE OF THE RELEASE SET FORTH ABOVE.
8.
COVENANT NOT TO SUE.
BORROWER, ON
BEHALF OF ITSELF AND ITS RESPECTIVE SUCCESSORS, ASSIGNS, AND OTHER LEGAL
REPRESENTATIVES, HEREBY ABSOLUTELY, UNCONDITIONALLY AND IRREVOCABLY, COVENANTS
AND AGREES WITH AND IN FAVOR OF EACH RELEASEE THAT IT WILL NOT SUE (AT LAW, IN
EQUITY, IN ANY REGULATORY PROCEEDING OR OTHERWISE) ANY RELEASEE ON THE BASIS OF
ANY CLAIM RELEASED, REMISED AND DISCHARGED BY BORROWER PURSUANT TO SECTION 7
ABOVE.
IF BORROWER OR ANY OF ITS RESPECTIVE SUCCESSORS, ASSIGNS OR OTHER LEGAL
REPRESENTATIVES VIOLATES THE FOREGOING COVENANT, BORROWER, FOR ITSELF AND ITS
SUCCESSORS, ASSIGNS AND LEGAL REPRESENTATIVES, JOINTLY AND SEVERALLY AGREES TO
PAY, IN ADDITION TO SUCH OTHER DAMAGES AS ANY RELEASEE MAY SUSTAIN AS A RESULT
OF SUCH VIOLATION, ALL ATTORNEYS' FEES AND COSTS INCURRED BY ANY RELEASEE AS A
RESULT OF SUCH VIOLATION.
9.
ADVICE OF COUNSEL.
EACH OF THE PARTIES
REPRESENTS TO EACH OTHER PARTY HERETO THAT IT HAS DISCUSSED THIS AMENDMENT WITH
ITS COUNSEL.
10.
SEVERABILITY OF PROVISIONS.
IN CASE ANY
PROVISION OF OR OBLIGATION UNDER THIS AMENDMENT SHALL BE INVALID, ILLEGAL OR
UNENFORCEABLE IN ANY APPLICABLE JURISDICTION, THE VALIDITY, LEGALITY AND
ENFORCEABILITY OF THE REMAINING PROVISIONS OR OBLIGATIONS, OR OF SUCH PROVISION
OR OBLIGATION IN ANY OTHER JURISDICTION, SHALL NOT IN ANY WAY BE AFFECTED OR
IMPAIRED THEREBY.
11.
COUNTERPARTS.
THIS AMENDMENT MAY BE EXECUTED
IN MULTIPLE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL AND
ALL OF WHICH WHEN TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
DELIVERY OF AN EXECUTED SIGNATURE PAGE OF THIS AMENDMENT BY FACSIMILE
TRANSMISSION OR ELECTRONIC TRANSMISSION SHALL BE AS EFFECTIVE AS DELIVERY OF A
MANUALLY EXECUTED COUNTERPART HEREOF.
12.
GOVERNING LAW.
THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE WITHOUT REGARD
TO THE PRINCIPLES THEREOF REGARDING CONFLICTS OF LAWS.
13.
ENTIRE AGREEMENT.
THE LOAN AGREEMENT AS AND
WHEN AMENDED THROUGH THIS AMENDMENT EMBODIES THE ENTIRE AGREEMENT BETWEEN THE
PARTIES HERETO RELATING TO THE SUBJECT MATTER THEREOF AND SUPERSEDES ALL PRIOR
AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, IF ANY, RELATING TO THE SUBJECT
MATTER THEREOF.
14.
NO STRICT CONSTRUCTION, ETC.
THE PARTIES
HERETO HAVE PARTICIPATED JOINTLY IN THE NEGOTIATION AND DRAFTING OF THIS
AMENDMENT.
IN THE EVENT AN AMBIGUITY OR QUESTION OF INTENT OR INTERPRETATION
ARISES, THIS AMENDMENT SHALL BE CONSTRUED AS IF DRAFTED JOINTLY BY THE PARTIES
HERETO AND NO PRESUMPTION OR BURDEN OF PROOF SHALL ARISE FAVORING OR