LIABILITY, CRIMINAL OR CIVIL STATUTE OR COMMON LAW
(EACH A "CLAIM" AND COLLECTIVELY, THE "CLAIMS"), WHETHER KNOWN OR UNKNOWN, FIXED
OR CONTINGENT, DIRECT, INDIRECT, OR DERIVATIVE, ASSERTED OR UNASSERTED, MATURED
OR UNMATURED, FORESEEN OR UNFORESEEN, PAST OR PRESENT, LIQUIDATED OR
UNLIQUIDATED, SUSPECTED OR UNSUSPECTED, WHICH SUCH BORROWER EVER HAD, NOW HAS,
OR MIGHT HEREAFTER HAVE AGAINST ANY SUCH RELEASEE WHICH RELATES, DIRECTLY OR
INDIRECTLY TO THE CREDIT AGREEMENT, ANY OTHER LOAN DOCUMENT, OR TO ANY ACTS OR
OMISSIONS OF ANY SUCH RELEASEE WITH RESPECT TO THE CREDIT AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR TO THE LENDER-BORROWER RELATIONSHIP EVIDENCED BY THE LOAN
DOCUMENTS, EXCEPT FOR THE DUTIES AND OBLIGATIONS SET FORTH IN THE LOAN
DOCUMENTS.
AS TO EACH AND EVERY CLAIM RELEASED HEREUNDER, EACH BORROWER HEREBY
REPRESENTS THAT IT HAS RECEIVED THE ADVICE OF LEGAL COUNSEL WITH REGARD TO THE
RELEASES CONTAINED HEREIN, AND HAVING BEEN SO ADVISED, SPECIFICALLY WAIVES THE
BENEFIT OF THE PROVISIONS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA WHICH
PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
As to each and every Claim released hereunder, each Borrower also waives the
benefit of each other similar provision of applicable federal or state law
(including without limitation the laws of the state of New York), if any,
pertaining to general releases after having been advised by its legal counsel
with respect thereto.
Each Borrower acknowledges that it may hereafter discover facts different from
or in addition to those now known or believed to be true with respect to such
Claims and agrees that this instrument shall be and remain effective in all
respects notwithstanding any such
3
differences or additional facts.
Each Borrower understands, acknowledges and
agrees that the 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.
(B)
EACH BORROWER, FOR ITSELF AND ON BEHALF OF ITS RESPECTIVE
SUCCESSORS, ASSIGNS, AND OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND ATTORNEYS,
AND ANY PERSON ACTING FOR OR ON BEHALF OF, OR CLAIMING THROUGH IT, HEREBY
ABSOLUTELY, UNCONDITIONALLY AND IRREVOCABLY, COVENANTS AND AGREES WITH AND IN
FAVOR OF EACH RELEASEE ABOVE 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 SUCH PERSON PURSUANT TO THE ABOVE RELEASE.
EACH BORROWER FURTHER AGREES THAT IT SHALL NOT DISPUTE THE VALIDITY OR
ENFORCEABILITY OF THE CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY
OF ITS OBLIGATIONS THEREUNDER, OR THE VALIDITY, PRIORITY, ENFORCEABILITY OR THE
EXTENT OF AGENT'S LIEN ON ANY ITEM OF COLLATERAL UNDER THE CREDIT AGREEMENT