ORDER OF ANY NATURE PROHIBITING, DIRECTLY OR INDIRECTLY, THE CONSUMMATION
OF THE TRANSACTIONS CONTEMPLATED HEREIN SHALL HAVE BEEN ISSUED AND REMAIN IN
FORCE BY ANY GOVERNMENTAL AUTHORITY AGAINST ANY LOAN PARTY, EITHER AGENT, OR ANY
LENDER;
(C)
THE REPRESENTATIONS AND WARRANTIES SET
FORTH HEREIN AND IN THE FINANCING AGREEMENT ARE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS (EXCEPT THAT SUCH MATERIALITY QUALIFIER SHALL NOT BE APPLICABLE TO ANY
REPRESENTATIONS AND WARRANTIES THAT ALREADY ARE QUALIFIED OR MODIFIED BY
MATERIALITY IN THE TEXT THEREOF) ON AND AS OF THE DATE HEREOF, AS THOUGH MADE ON
SUCH DATE (EXCEPT TO THE EXTENT THAT SUCH REPRESENTATIONS AND WARRANTIES RELATE
SOLELY TO AN EARLIER DATE); AND
3
(D)
ALL OTHER DOCUMENTS AND LEGAL MATTERS IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT SHALL HAVE BEEN
DELIVERED OR EXECUTED OR RECORDED, AS REQUIRED BY COLLATERAL AGENT.
8.
GOVERNING LAW.
THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
9.
ENTIRE AMENDMENT; EFFECT OF AMENDMENT.
THIS AMENDMENT, AND THE TERMS AND PROVISIONS HEREOF, CONSTITUTE THE ENTIRE
AGREEMENT AMONG THE PARTIES PERTAINING TO THE SUBJECT MATTER HEREOF AND
SUPERSEDES ANY AND ALL PRIOR OR CONTEMPORANEOUS AMENDMENTS RELATING TO THE
SUBJECT MATTER HEREOF.
EXCEPT FOR THE AMENDMENTS TO THE FINANCING AGREEMENT
EXPRESSLY SET FORTH IN SECTION 2 HEREOF, THE FINANCING AGREEMENT AND OTHER LOAN
DOCUMENTS SHALL REMAIN UNCHANGED AND IN FULL FORCE AND EFFECT.
TO THE EXTENT
ANY TERMS OR PROVISIONS OF THIS AMENDMENT CONFLICT WITH THOSE OF THE FINANCING
AGREEMENT OR OTHER LOAN DOCUMENTS, THE TERMS AND PROVISIONS OF THIS AMENDMENT
SHALL CONTROL.
THIS AMENDMENT IS A LOAN DOCUMENT.
THE AMENDMENTS SET FORTH
HEREIN ARE LIMITED TO THE SPECIFICS HEREOF, SHALL NOT APPLY WITH RESPECT TO ANY
FACTS OR OCCURRENCES OTHER THAN THOSE ON WHICH THE SAME ARE BASED, SHALL NOT
EXCUSE FUTURE NON-COMPLIANCE WITH THE FINANCING AGREEMENT OR THE OTHER LOAN
DOCUMENTS, AND SHALL NOT OPERATE AS A CONSENT TO OR WAIVER OF ANY FURTHER OR
OTHER MATTER, UNDER THE LOAN DOCUMENTS.
10.
HEADINGS.
SECTION AND SUBSECTION HEADINGS IN
THIS AMENDMENT ARE INCLUDED HEREIN FOR CONVENIENCE OF REFERENCE ONLY AND SHALL
NOT CONSTITUTE A PART OF THIS AMENDMENT FOR ANY OTHER PURPOSE OR BE GIVEN ANY
SUBSTANTIVE EFFECT.
11.
COUNTERPARTS; TELECOPY EXECUTION.
THIS
AMENDMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS, ALL OF WHICH TAKEN
TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT AND ANY OF THE PARTIES
HERETO MAY EXECUTE THIS AMENDMENT BY SIGNING ANY SUCH COUNTERPART.
DELIVERY OF
AN EXECUTED COUNTERPART OF THIS AMENDMENT BY TELECOPY SHALL BE EQUALLY AS
EFFECTIVE AS DELIVERY OF AN ORIGINAL EXECUTED COUNTERPART OF THIS AMENDMENT.
ANY PARTY DELIVERING AN EXECUTED COUNTERPART OF THIS AMENDMENT BY TELECOPY ALSO
SHALL DELIVER AN ORIGINAL EXECUTED COUNTERPART OF THIS AMENDMENT, BUT THE
FAILURE TO DELIVER AN ORIGINAL EXECUTED COUNTERPART SHALL NOT AFFECT THE
VALIDITY, ENFORCEABILITY, AND BINDING EFFECT OF THIS AMENDMENT.
12.
MISCELLANEOUS.
(A)
UPON