THE
PARTIES ACKNOWLEDGES THAT IT MAY HEREAFTER DISCOVER FACTS DIFFERENT FROM, OR IN
ADDITION TO, THOSE WHICH THEY NOW KNOW OR BELIEVE TO BE TRUE, AND AGREE THAT
THIS SETTLEMENT AGREEMENT AND THE RELEASES CONTAINED HEREIN SHALL BE AND REMAIN
EFFECTIVE IN ALL RESPECTS NOTWITHSTANDING SUCH DIFFERENT OR ADDITIONAL FACTS OR
THE DISCOVERY THEREOF.
(D)
THE PARTIES ACKNOWLEDGE THAT THE RELEASE IS GIVEN FOR ADEQUATE, VALID AND
SUFFICIENT CONSIDERATION, INCLUDING THE ACCEPTANCE OF THE OBLIGATIONS SET FORTH
IN THIS SETTLEMENT AGREEMENT.
IN THE EVENT AFTER THE EFFECTIVE DATE, ANY PARTY
SHALL BREACH ANY PROVISION SET FORTH IN THIS SETTLEMENT AGREEMENT (OTHER THAN
THE RELEASE), THE OTHER PARTIES WILL BE ENTITLED TO REMEDIES IN CONTRACT FOR THE
BREACH OF THE OBLIGATIONS SET FORTH IN THIS SETTLEMENT AGREEMENT, HOWEVER, THE
VALIDITY OF THE RELEASES CONTAINED HEREIN SHALL NOT BE AFFECTED.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR ANY ACTS OR EVENTS FOLLOWING
THE EFFECTIVE DATE, THE RELEASES
9
CONTAINED HEREIN ARE IRREVOCABLE AND, FROM THE EFFECTIVE DATE SHALL BE AND
REMAIN EFFECTIVE IN ALL RESPECTS.
(E)
TO THE EXTENT APPLICABLE LAW WOULD NOT OTHERWISE RECOGNIZE THE PROVISIONS
OF SUBSECTIONS (A) AND (B) OF THIS SECTION 2.2 AS CONSTITUTING A FULL AND FINAL
RELEASE APPLYING TO ALL UNKNOWN AND UNANTICIPATED CLAIMS, AS WELL AS THOSE NOW
KNOWN OR DISCLOSED, THE PARTIES HEREBY EXPRESSLY WAIVE ALL RIGHTS OR BENEFITS
WHICH EITHER ONE OR ANY OF THEM MAY HAVE AGAINST ANY OTHER COUNTERPARTY NOW OR
IN THE FUTURE UNDER ANY SUCH APPLICABLE LAW.
(F)
IN CONSIDERATION OF THE FOREGOING, TEM AGREES TO WITHDRAW, AND HEREBY
WITHDRAWS, THE NOTICE OF DISPUTE (AS SUCH TERM IS DEFINED IN THE MANAGEMENT
AGREEMENT) DATED OCTOBER 28, 2004 SENT TO NEWCOMM PURSUANT TO SECTION 12.13.1 OF
THE MANAGEMENT AGREEMENT.
AS A RESULT THEREOF, NEWCOMM'S RESPONSE LETTER TO TEM
DATED NOVEMBER 10, 2004 SHALL BE OF NO FURTHER FORCE AND EFFECT.
Section 2.2
Limitation of Mutual Release.
(A)
IT IS THE INTENT OF THE PARTIES THAT THE SCOPE OF THE RELEASE PROVIDED FOR
IN THIS SETTLEMENT AGREEMENT SHALL BE AS BROAD AND COMPLETE AS POSSIBLE AND
SHALL HAVE THE BENEFITS OF THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL
TO THE FULLEST EXTENT ALLOWED BY LAW AND LIMITED ONLY BY THE PROVISIONS OF THIS
SECTION 2.2.
NOTHING WHATSOEVER PROVIDED OR CONTAINED IN THIS ARTICLE II OR IN
ANY OTHER PROVISION OF THIS SETTLEMENT AGREEMENT (W) SHALL BE CONSTRUED AS, OR
DEEMED TO BE A RELEASE OF, OR TO RELEASE, ANY PARTY FROM ITS OBLIGATIONS,
DUTIES, AGREEMENTS AND OTHER WARRANTIES EXPRESSLY INCURRED OR OTHERWISE ARISING
UNDER THIS SETTLEMENT AGREEMENT, (X) SHALL BE CONSTRUED AS, OR DEEMED TO BE A
RELEASE OF, OR TO RELEASE, NEWCOMM FROM ITS DELIVERY AND CONVERSION OBLIGATIONS
OF THE PROMISSORY NOTES DELIVERED PURSUANT TO SECTION 3.1(A) AND (B) HEREOF OR
(Y) SHALL RESTRICT, IMPINGE UPON, OR NULLIFY ANY RIGHT OR OTHER CLAIM THAT
NEWCOMM MAY HAVE AGAINST TEM BECAUSE OF ANY FRAUD COMMITTED BY TEM OR ANY TEM
SENIOR EXECUTIVES IN THEIR PERFORMANCE OF MANAGEMENT SERVICES UNDER