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)
Each Credit Party 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.
5.6
COVENANT NOT TO SUE. EACH CREDIT PARTY, ON BEHALF OF ITSELF AND ITS
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 SUCH CREDIT PARTY PURSUANT TO SECTION 5.5 ABOVE. IF ANY CREDIT
PARTY OR ANY OF THEIR RESPECTIVE SUCCESSORS, ASSIGNS OR OTHER LEGAL
REPRESENTATIONS VIOLATES THE FOREGOING COVENANT, EACH CREDIT PARTY, FOR
THEMSELVES AND THEIR SUCCESSORS, ASSIGNS AND LEGAL REPRESENTATIVES, JOINTLY AND
SEVERALLY AGREE 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.
5.7
SEVERABILITY. ANY PROVISION OF THIS AGREEMENT HELD BY A COURT OF
COMPETENT JURISDICTION TO BE INVALID OR UNENFORCEABLE SHALL NOT IMPAIR OR
INVALIDATE THE REMAINDER OF THIS AGREEMENT.
5.8
REVIEWED BY ATTORNEYS. EACH BORROWER REPRESENTS AND WARRANTS TO
AGENT AND LENDERS THAT IT (A) UNDERSTANDS FULLY THE TERMS OF THIS AGREEMENT AND
THE CONSEQUENCES OF THE EXECUTION AND DELIVERY OF THIS AGREEMENT, (B) HAS BEEN
AFFORDED AN OPPORTUNITY TO HAVE THIS AGREEMENT REVIEWED BY, AND TO DISCUSS THIS
AGREEMENT AND DOCUMENT EXECUTED IN CONNECTION HEREWITH WITH, SUCH ATTORNEYS AND
OTHER PERSONS AS SUCH BORROWER MAY WISH, AND (C) HAS ENTERED INTO THIS AGREEMENT
AND EXECUTED AND DELIVERED ALL DOCUMENTS IN CONNECTION HEREWITH OF ITS OWN FREE
WILL AND ACCORD AND WITHOUT THREAT, DURESS OR OTHER COERCION OF ANY KIND BY ANY
PERSON. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT NEITHER THIS AGREEMENT NOR
THE OTHER DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE CONSTRUED MORE FAVORABLY
IN FAVOR OF ONE THAN THE OTHER BASED UPON WHICH PARTY DRAFTED THE SAME, IT BEING
ACKNOWLEDGED THAT ALL PARTIES HERETO CONTRIBUTED SUBSTANTIALLY TO THE
NEGOTIATION AND PREPARATION OF THIS AGREEMENT AND THE OTHER DOCUMENTS EXECUTED
PURSUANT HERETO OR IN CONNECTION HEREWITH.
5.9
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK FOR CONTRACTS TO
BE PERFORMED ENTIRELY WITHIN SAID STATE.
5.10
COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS, ALL OF WHICH SHALL BE DEEMED TO CONSTITUTE BUT ONE ORIGINAL AND
SHALL BE BINDING UPON ALL PARTIES,
THEIR SUCCESSORS AND PERMITTED ASSIGNS. DELIVERY OF AN EXECUTED SIGNATURE PAGE
HEREOF BY FACSIMILE TRANSMISSION SHALL BE EFFECTIVE AS DELIVERY OF A MANUALLY