IN THE PLURAL,
AND VICE VERSA, AND THE MASCULINE GENDER SHALL INCLUDE THE FEMININE AND NEUTER
AND THE NEUTER SHALL INCLUDE THE MASCULINE AND FEMININE.
(B)
THIS AMENDMENT MAY NOT BE CHANGED, AMENDED,
RESTATED, WAIVED, SUPPLEMENTED, DISCHARGED, CANCELED, TERMINATED OR OTHERWISE
MODIFIED ORALLY OR BY ANY COURSE OF DEALING OR IN ANY MANNER OTHER THAN AS
PROVIDED IN THE LOAN AGREEMENT.
THIS AMENDMENT SHALL BE CONSIDERED PART OF THE
LOAN AGREEMENT AND SHALL BE A LOAN DOCUMENT FOR ALL PURPOSES UNDER THE LOAN
AGREEMENT AND OTHER LOAN DOCUMENTS.
(C)
THIS AMENDMENT, THE LOAN AGREEMENT AND THE
LOAN DOCUMENTS CONSTITUTE THE FINAL, ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN
THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
BETWEEN THE PARTIES, AND SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE
SUCCESSORS AND ASSIGNS OF THE PARTIES HERETO AND THERETO.
THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND THEREOF.
(D)
THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE CHOICE OF LAW PROVISIONS SET
FORTH IN THE LOAN AGREEMENT AND SHALL BE SUBJECT TO THE WAIVER OF JURY TRIAL AND
NOTICE PROVISIONS OF THE LOAN AGREEMENT.
(E)
BORROWER MAY NOT ASSIGN, DELEGATE OR
TRANSFER THIS AMENDMENT OR ANY OF ITS RIGHTS OR OBLIGATIONS HEREUNDER.
NO
RIGHTS ARE INTENDED TO BE CREATED UNDER THIS AMENDMENT FOR THE BENEFIT OF ANY
THIRD PARTY DONEE, CREDITOR OR INCIDENTAL BENEFICIARY OF BORROWER OR ANY
GUARANTOR.
NOTHING CONTAINED IN THIS AMENDMENT SHALL BE CONSTRUED AS A
DELEGATION TO AGENT OR LENDERS OF BORROWER'S OR ANY GUARANTOR'S DUTY OF
PERFORMANCE, INCLUDING, WITHOUT LIMITATION, ANY DUTIES UNDER ANY ACCOUNT OR
CONTRACT IN WHICH AGENT HAS OR LENDERS HAVE A SECURITY INTEREST OR LIEN.
THIS
AMENDMENT SHALL BE BINDING UPON THE BORROWER AND ITS RESPECTIVE SUCCESSORS AND
ASSIGNS.
(F)
THE BORROWER SHALL PAY ALL COSTS AND
EXPENSES INCURRED BY AGENT AND LENDERS OR ANY OF THEIR AFFILIATES, INCLUDING,
WITHOUT LIMITATION, DOCUMENTATION AND DILIGENCE FEES AND EXPENSES, ALL SEARCH,
AUDIT, APPRAISAL, RECORDING, AND FILING FEES AND EXPENSES AND ALL OTHER
OUT-OF-POCKET CHARGES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, UCC AND
JUDGMENT AND TAX LIEN SEARCHES AND UCC FILINGS AND FEES FOR POST-CLOSING UCC AND
JUDGMENT AND TAX LIEN SEARCHES) AND REASONABLE FEES AND EXPENSES OF OUTSIDE
COUNSEL AND IN-HOUSE COUNSEL, IN CONNECTION WITH ENTERING INTO, NEGOTIATING,
PREPARING, REVIEWING AND EXECUTING THIS AMENDMENT AND THE DOCUMENTS, AGREEMENTS
AND INSTRUMENTS CONTEMPLATED HEREBY AND ALL RELATED AGREEMENTS, DOCUMENTS AND
INSTRUMENTS, AND ALL OF THE SAME SHALL BE PART OF THE OBLIGATIONS.
(G)
BORROWER HEREBY (I) AGREES THAT THIS
AMENDMENT SHALL NOT LIMIT OR DIMINISH THE OBLIGATIONS OF BORROWER UNDER THE LOAN
DOCUMENTS, (II) REAFFIRMS ITS OBLIGATIONS
11
UNDER EACH OF THE LOAN DOCUMENTS TO WHICH IT IS A PARTY, AND (III) AGREES THAT
EACH OF SUCH LOAN DOCUMENTS REMAINS IN FULL FORCE