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.
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 4 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
4
Releasee may sustain as a result of such violation, all attorneys' fees and
costs incurred by any Releasee as a result of such violation.
6.
REIMBURSEMENT OF EXPENSES.
EACH
BORROWER HEREBY AGREES THAT IT SHALL REIMBURSE THE AGENT AND THE LENDERS ON
DEMAND FOR ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION ATTORNEY'S FEES)
INCURRED BY SUCH PARTIES IN CONNECTION WITH THE NEGOTIATION, DOCUMENTATION AND
CONSUMMATION OF THIS AMENDMENT AND THE OTHER DOCUMENTS EXECUTED IN CONNECTION
HEREWITH AND THEREWITH AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
7.
GOVERNING LAW.
THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
FOR CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SAID STATE.
8.
SEVERABILITY OF PROVISIONS.
ANY
PROVISION OF THIS AMENDMENT WHICH IS PROHIBITED OR UNENFORCEABLE IN ANY
JURISDICTION SHALL, AS TO SUCH JURISDICTION, BE INEFFECTIVE TO THE EXTENT OF
SUCH PROHIBITION OR UNENFORCEABILITY WITHOUT INVALIDATING THE REMAINING
PROVISIONS HEREOF OR AFFECTING THE VALIDITY OR ENFORCEABILITY OF SUCH PROVISION
IN ANY OTHER JURISDICTION.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH
CREDIT PARTY HEREBY WAIVES ANY PROVISION OF LAW THAT RENDERS ANY PROVISION
HEREOF PROHIBITED OR UNENFORCEABLE IN ANY RESPECT.
9.
COUNTERPARTS.
THIS AMENDMENT 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 EXECUTED
COUNTERPART HEREOF.
10.
EFFECT OF THIS AMENDMENT.
EXCEPT AS
SPECIFICALLY AMENDED OR MODIFIED PURSUANT TO SECTION 1 OF THIS AMENDMENT, NO
OTHER AMENDMENTS, CHANGES, MODIFICATIONS, CONSENTS OR WAIVERS TO THE LOAN
DOCUMENTS ARE INTENDED OR IMPLIED BY THIS AMENDMENT AND IN ALL OTHER RESPECTS
THE LOAN DOCUMENTS ARE HEREBY SPECIFICALLY RATIFIED, RESTATED AND CONFIRMED BY
ALL PARTIES HERETO AS OF THE EFFECTIVE DATE HEREOF.
TO