PARTIES HERETO INDIVIDUALLY OR IN COMBINATION, IN ONE OR MORE COUNTERPARTS, EACH
OF WHICH SHALL BE AN ORIGINAL AND ALL OF WHICH, TAKEN TOGETHER, SHALL CONSTITUTE
ONE AND THE SAME AGREEMENT.
DELIVERY OF AN EXECUTED COUNTERPART OF A SIGNATURE
PAGE BY TELECOPIER SHALL BE EFFECTIVE AS DELIVERY OF A MANUALLY EXECUTED
COUNTERPART.
SECTION 10.
GOVERNING LAW.
THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER
IN ACCORDANCE WITH SECTION 5-1401 OF THE
GENERAL OBLIGATION LAW OF THE STATE OF NEW YORK, SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO ANY CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION
OF THE LAWS OF ANY OTHER JURISDICTION.
SECTION 11.
SUCCESSORS AND ASSIGNS.
THE PROVISIONS OF THIS AMENDMENT
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS.
SECTION 12.
ACKNOWLEDGEMENT BY LOAN PARTIES.
EACH OF THE LOAN PARTIES
HEREBY ACKNOWLEDGE THAT IT HAS READ THIS AMENDMENT AND CONSENTS TO THE TERMS
HEREOF AND FURTHER CONFIRMS AND
8
agrees that the Loan Documents to which such Loan Party is a party and all of
the Collateral, as the case may be, described therein do, and shall continue to,
secure the payment of all of the Obligations.
SECTION 13.
COSTS AND EXPENSES.
THE BORROWER AGREES THAT ITS
OBLIGATIONS SET FORTH IN SECTION 11.10 OF THE LOAN AGREEMENT SHALL EXTEND TO THE
PREPARATION, EXECUTION AND DELIVERY OF THIS AMENDMENT (WHETHER OR NOT THIS
AMENDMENT BECOMES EFFECTIVE), INCLUDING, BUT NOT LIMITED TO, THE REASONABLE FEES
AND DISBURSEMENTS OF KAYE SCHOLER LLP, COUNSEL FOR THE AGENT.
SECTION 14.
SEVERABILITY.
IF ANY PROVISIONS OF THIS AMENDMENT SHALL BE
HELD INVALID OR UNENFORCEABLE IN WHOLE OR IN PART IN ANY JURISDICTION, SUCH
PROVISION SHALL, AS TO SUCH JURISDICTION, BE INEFFECTIVE TO THE EXTENT OF SUCH
INVALIDITY OR ENFORCEABILITY WITHOUT IN ANY MANNER AFFECTING THE VALIDITY OR
ENFORCEABILITY OF SUCH PROVISION IN ANY OTHER JURISDICTION OR THE REMAINING
PROVISIONS OF THIS AMENDMENT IN ANY JURISDICTION.
SECTION 15.
SURVIVAL.
ALL REPRESENTATIONS, WARRANTIES, COVENANTS,
AGREEMENTS, UNDERTAKINGS, WAIVERS AND RELEASES OF THE BORROWER AND THE LOAN
PARTIES CONTAINED HEREIN SHALL SURVIVE THE MATURITY DATE AND THE INDEFEASIBLE
PAYMENT IN FULL IN CASH OF THE OBLIGATIONS.
SECTION 16.
INTEGRATION.
THIS AMENDMENT REPRESENTS THE ENTIRE AGREEMENT
OF THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF.
THERE ARE NO
REPRESENTATIONS, AGREEMENTS, ARRANGEMENTS OR UNDERSTANDINGS, ORAL OR WRITTEN,
BETWEEN THE PARTIES HERETO, RELATING TO THE SUBJECT MATTER OF THIS AMENDMENT,
WHICH ARE NOT FULLY EXPRESSED HEREIN.
SECTION 17.
CONSULTATION WITH ADVISORS.
THE LOAN PARTIES ACKNOWLEDGE
THAT THEY HAVE CONSULTED WITH COUNSEL AND WITH SUCH OTHER EXPERTS AND ADVISORS
AS THEY HAVE DEEMED NECESSARY IN CONNECTION WITH THE NEGOTIATION, EXECUTION AND
DELIVERY OF THIS AMENDMENT.
THIS AMENDMENT SHALL BE CONSTRUED WITHOUT REGARD TO
ANY PRESUMPTION OR RULE REQUIRING THAT IT BE CONSTRUED AGAINST THE PARTY CAUSING
THIS AMENDMENT OR ANY PART THEREOF TO BE DRAFTED.
SECTION 18.
FURTHER DELIVERIES.