THE AGENT IN ITS SOLE
DISCRETION):
(A)
SIGNED COPIES.
THE BORROWER, THE LENDERS
AND THE AGENT SHALL HAVE EXECUTED A COPY HEREOF, AND DELIVERED THE FOREGOING TO
THE AGENT AT 1095 AVENUE OF THE AMERICAS, NEW YORK, NEW YORK 10036 (ATTENTION:
LOANS ADMINISTRATION);
(B)
NO CHANGE.
ON THE AMENDMENT CLOSING DATE,
BOTH BEFORE AND AFTER GIVING EFFECT TO THE TRANSACTIONS CONTEMPLATED BY THIS
AMENDMENT TO BE EFFECTIVE ON THE AMENDMENT CLOSING DATE, NO MATERIAL ADVERSE
CHANGE SHALL HAVE OCCURRED SINCE NOVEMBER 12, 2004;
(C)
NO DEFAULTS.
NO DEFAULT OR EVENT OF
DEFAULT SHALL EXIST;
(D)
ACCURACY OF REPRESENTATIONS.
EACH
REPRESENTATION AND WARRANTY MADE BY THE BORROWER IN THE LOAN 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);
(E)
GUARANTOR'S CONSENT.
EACH OF THE
GUARANTORS SHALL HAVE EXECUTED A CONFIRMING CONSENT, SUBSTANTIALLY IN THE FORM
ATTACHED HERETO AS ANNEX A OR OTHERWISE SATISFACTORY TO THE AGENT, AND DELIVERED
THE SAME TO THE AGENT AT 1095 AVENUE OF THE AMERICAS, NEW YORK, NEW YORK 10036
(ATTENTION: LOANS ADMINISTRATION) OR SUCH OTHER PLACE DIRECTED BY THE AGENT; AND
(F)
AMENDMENT FEE.
THE BORROWER SHALL HAVE
PAID TO THE LENDERS AN AMENDMENT FEE IN THE AMOUNT OF $492,879.
6.
LIMITED NATURE OF AMENDMENT. THE
AMENDMENT SET FORTH HEREIN IS LIMITED PRECISELY AS WRITTEN AND SHALL NOT BE
DEEMED TO PREJUDICE ANY RIGHT OR RIGHTS WHICH THE AGENT OR THE LENDERS MAY NOW
HAVE OR MAY HAVE IN THE FUTURE UNDER OR IN CONNECTION WITH THE LOAN AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS. EXCEPT AS EXPRESSLY AMENDED HEREBY, THE TERMS
AND PROVISIONS OF THE LOAN AGREEMENT AND ALL OTHER LOAN DOCUMENTS REMAIN IN FULL
FORCE AND EFFECT.
7.
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.
2
8.
THIS AMENDMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO
THE MATTERS COVERED HEREBY AND THEREBY AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
9.
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, THE BORROWER ACCEPTS AND CONSENTS FOR ITSELF AND IN RESPECT TO
ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS, UNLESS WAIVED IN WRITING BY THE