RELEASEES OR ANY OF THEM
FOR, UPON, OR BY REASON OF ANY CIRCUMSTANCE, ACTION, CAUSE
5
OR THING WHATSOEVER WHICH ARISES AT ANY TIME ON OR PRIOR TO THE DAY AND DATE OF
THIS AMENDMENT, FOR OR ON ACCOUNT OF, OR IN RELATION TO, OR IN ANY WAY IN
CONNECTION WITH THE LOAN AGREEMENT, THIS AMENDMENT OR ANY OF THE OTHER DEBT
DOCUMENTS OR TRANSACTIONS THEREUNDER OR RELATED THERETO.
(B)
BORROWER UNDERSTANDS, ACKNOWLEDGES AND AGREES 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 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 6 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