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
AGREEMENT.
THIS AMENDMENT SHALL BE CONSIDERED PART OF THE AGREEMENT AND SHALL
BE A LOAN DOCUMENT FOR ALL PURPOSES UNDER THE AGREEMENT AND OTHER LOAN
DOCUMENTS.
(C)
THIS AMENDMENT, THE 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
3
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 AGREEMENT AND SHALL BE
SUBJECT TO THE WAIVER OF JURY TRIAL AND NOTICE PROVISIONS OF THE 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, 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 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 AND EFFECT
AND IS HEREBY RATIFIED AND CONFIRMED.
(H)
ALL REPRESENTATIONS AND