(OR WAIVED BY
THE AGENT).
THE FIRST DATE ON WHICH ALL OF THE FOLLOWING CONDITIONS HAVE BEEN
SO FULFILLED (OR SO WAIVED) IS HEREIN REFERRED TO AS THE "AMENDMENT CLOSING
DATE."
IF THE AMENDMENT CLOSING DATE SHALL NOT HAVE OCCURRED BY THE CLOSE OF
BUSINESS (NEW YORK TIME) ON OCTOBER 31, 2006 (OR SUCH LATER TIME OR DATE AS THE
AGENT CONSENTS TO IN WRITING), THE PROVISIONS OF THIS AMENDMENT SHALL (EXCEPT AS
MAY OTHERWISE BE SPECIFIED IN THIS AMENDMENT) BE DEEMED RESCINDED, NULL AND
VOID.
(A)
SIGNED COPIES.
THE BORROWER, THE LENDERS AND THE AGENT SHALL HAVE
EXECUTED A COPY HEREOF AND DELIVERED THE SAME TO THE AGENT AT 565 FIFTH AVENUE,
NEW YORK, NEW YORK 10017 (ATTENTION:
JOSEPH FRATUS) OR SUCH OTHER PLACE
DIRECTED BY THE AGENT.
(B)
GUARANTOR'S CONSENT.
EACH GUARANTOR SHALL HAVE EXECUTED A
CONFIRMING CONSENT, SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS ANNEX A OR
OTHERWISE SATISFACTORY TO THE AGENT (A
4
"CONFIRMING CONSENT"), AND DELIVERED THE SAME TO THE AGENT AT 565 FIFTH AVENUE,
NEW YORK, NEW YORK 10017 (ATTENTION:
JOSEPH FRATUS) OR SUCH OTHER PLACE
DIRECTED BY THE AGENT.
(C)
NO DEFAULTS.
NO DEFAULT OR EVENT OF DEFAULT SHALL EXIST.
(D)
ACCURACY OF REPRESENTATIONS.
EACH REPRESENTATION AND WARRANTY MADE
BY THE BORROWER, EACH PRIMARY OBLIGOR, EACH PORTFOLIO ENTITY, EACH RELATED
ENTITY AND EACH OTHER LOAN PARTY IN THE AGREEMENT AND THE OTHER LOAN DOCUMENTS
SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE AMENDMENT CLOSING
DATE WITH THE SAME EFFECT AS THOUGH MADE AT AND AS OF SUCH DATE (EXCEPT FOR
THOSE THAT SPECIFICALLY SPEAK AS OF A PRIOR DATE).
6.
LIMITED NATURE OF AMENDMENTS.
THE AMENDMENTS SET FORTH HEREIN
ARE LIMITED PRECISELY AS WRITTEN AND SHALL NOT BE DEEMED TO (A) BE A CONSENT BY
THE AGENT OR THE LENDERS TO ANY WAIVER OF, OR MODIFICATION OF, ANY OTHER TERM OR
CONDITION OF THE AGREEMENT, OR ANY OF THE DOCUMENTS REFERRED TO IN ANY OF THE
FOREGOING OR (B) PREJUDICE ANY RIGHT OR RIGHTS WHICH ANY OF THE LENDERS OR THE
AGENT MAY NOW HAVE OR MAY HAVE IN THE FUTURE UNDER OR IN CONNECTION WITH THE
AGREEMENT, OR ANY OF THE DOCUMENTS REFERRED TO IN ANY OF THE FOREGOING.
EXCEPT
AS EXPRESSLY AMENDED HEREBY, THE TERMS AND PROVISIONS OF THE AGREEMENT SHALL
REMAIN IN FULL FORCE AND EFFECT.
7.
GOVERNING LAW.
THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO CHOICE OF LAW DOCTRINE THAT WOULD RESULT IN THE APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION.
8.
JURISDICTION, WAIVER OF JURY TRIAL.
THE BORROWER HEREBY AGREES
THAT ANY LEGAL ACTION OR PROCEEDING AGAINST IT WITH RESPECT TO THIS AMENDMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK CITY
OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AS THE
AGENT OR ANY LENDER MAY ELECT, AND, BY EXECUTION AND DELIVERY HEREOF,