RECEIVED AN EXECUTED ORIGINAL OR EXECUTED ORIGINAL
COUNTERPARTS OF THIS AMENDMENT NO. 4 (AS THE CASE MAY BE), DULY AUTHORIZED,
EXECUTED AND DELIVERED BY BORROWER;
(B) AGENT SHALL HAVE RECEIVED SUCH APPROVALS OF THE LENDERS TO THE TERMS OF THIS
AMENDMENT NO. 4 AS MAY BE REQUIRED IN THE DETERMINATION OF AGENT UNDER THE TERMS
OF THE LOAN AGREEMENT; AND
(C) AGENT SHALL HAVE RECEIVED A TRUE AND CORRECT COPY OF ANY CONSENT, WAIVER OR
APPROVAL TO OR OF THIS AMENDMENT NO. 4 WHICH BORROWER IS REQUIRED TO OBTAIN FROM
ANY OTHER PERSON, AND SUCH CONSENT, WAIVER OR APPROVAL SHALL BE IN FORM AND
SUBSTANCE SATISFACTORY TO AGENT.
7. PROVISIONS OF GENERAL APPLICATION.
(A) EFFECT OF THIS AMENDMENT.
EXCEPT AS MODIFIED PURSUANT HERETO, NO OTHER
CHANGES OR MODIFICATIONS TO THE FINANCING AGREEMENTS ARE INTENDED OR IMPLIED AND
IN ALL OTHER RESPECTS THE FINANCING AGREEMENTS ARE HEREBY SPECIFICALLY RATIFIED,
RESTATED AND CONFIRMED BY ALL PARTIES HERETO AS OF THE EFFECTIVE DATE HEREOF.
TO THE EXTENT OF CONFLICT BETWEEN THE TERMS OF THIS AMENDMENT NO. 4 AND THE
OTHER FINANCING AGREEMENTS, THE TERMS OF THIS AMENDMENT NO. 4 SHALL CONTROL.
THE LOAN AGREEMENT AND THIS AMENDMENT NO. 4 SHALL BE READ AND CONSTRUED AS ONE
AGREEMENT.
ANY ACKNOWLEDGMENT OR CONSENT CONTAINED HEREIN SHALL NOT BE
CONSTRUED TO CONSTITUTE A CONSENT TO ANY OTHER OR FURTHER ACTION BY BORROWER OR
ANY SUBSIDIARY OF BORROWER OR TO ENTITLE BORROWER OR ANY SUBSIDIARY OF BORROWER
TO ANY OTHER CONSENT.
THE PARTIES CONFIRM AND AGREE THAT AMENDMENT NO. 3 TO
LOAN AND SECURITY AGREEMENT SHALL BE DATED AND EFFECTIVE AS OF OCTOBER 16, 2002.
(B) GOVERNING LAW.
THE RIGHTS AND OBLIGATIONS HEREUNDER OF EACH OF THE PARTIES
HERETO SHALL BE GOVERNED BY AND INTERPRETED AND DETERMINED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, BUT EXCLUDING ANY PRINCIPLES OF CONFLICTS OF
LAW OR OTHER RULE OF LAW THAT
3
WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY JURISDICTION OTHER THAN THE
LAWS OF THE STATE OF NEW YORK.
(C) BINDING EFFECT.
THIS AMENDMENT NO. 4 SHALL BE BINDING UPON AND INURE TO THE
BENEFIT OF EACH OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS.
(D) COUNTERPARTS.
THIS AMENDMENT NO. 4 MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS, BUT ALL OF SUCH COUNTERPARTS SHALL TOGETHER CONSTITUTE BUT ONE AND
THE SAME AGREEMENT.
IN MAKING PROOF OF THIS AMENDMENT NO. 4, IT SHALL NOT BE
NECESSARY TO PRODUCE OR ACCOUNT FOR MORE THAN ONE COUNTERPART THEREOF SIGNED BY
EACH OF THE PARTIES HERETO.
DELIVERY OF AN EXECUTED COUNTERPART OF THIS
AMENDMENTS NO. 4 BY TELEFACSIMILE SHALL HAVE THE SAME FORCE AND EFFECT AS
DELIVERY OF AN ORIGINAL MANUALLY EXECUTED COUNTERPART OF THIS AMENDMENT NO. 4.
ANY PARTY DELIVERING ANY EXECUTED COUNTERPART OF THIS AMENDMENT NO. 4 BY
TELEFACSIMILE SHALL ALSO DELIVER AN ORIGINAL MANUALLY EXECUTED COUNTERPART, BUT
THE FAILURE TO DO SO SHALL NOT AFFECT THE VALIDITY, ENFORCEABILITY AND BINDING
EFFECT OF THIS AMENDMENT NO. 4 AS TO SUCH