REPRESENTATIONS AND
WARRANTIES SPECIFICALLY RELATE TO A SPECIFIC DATE, IN WHICH CASE SUCH
REPRESENTATIONS AND WARRANTIES WERE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON
AND AS OF SUCH OTHER SPECIFIC DATE);
(B)
REAFFIRMS ALL OF THE COVENANTS CONTAINED IN THE LOAN AGREEMENT,
COVENANTS TO ABIDE THEREBY UNTIL SATISFACTION IN FULL OF THE OBLIGATIONS AND
TERMINATION OF THE LOAN AGREEMENT;
(C)
REPRESENTS AND WARRANTS THAT NO DEFAULT OR EVENT OF DEFAULT HAS
OCCURRED AND IS CONTINUING UNDER ANY OF THE EXISTING FINANCING AGREEMENTS;
(D)
REPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY AND LEGAL RIGHT
TO EXECUTE, DELIVER AND CARRY OUT THE TERMS OF THIS FIRST AMENDMENT, THAT SUCH
ACTIONS WERE DULY AUTHORIZED BY ALL NECESSARY LIMITED LIABILITY COMPANY OR
CORPORATE ACTION, AS APPLICABLE, AND THAT THE OFFICERS EXECUTING THIS FIRST
AMENDMENT ON ITS BEHALF WERE SIMILARLY AUTHORIZED AND EMPOWERED, AND THAT THIS
FIRST AMENDMENT DOES NOT CONTRAVENE ANY PROVISIONS OF ITS CERTIFICATE OF
INCORPORATION OR FORMATION, OPERATING AGREEMENT, BYLAWS, OR OTHER FORMATION
DOCUMENTS, AS APPLICABLE, OR OF ANY CONTRACT OR AGREEMENT TO WHICH IT IS A PARTY
OR BY WHICH ANY OF ITS PROPERTIES ARE BOUND; AND
(E)
REPRESENTS AND WARRANTS THAT THIS FIRST AMENDMENT AND ALL
ASSIGNMENTS, INSTRUMENTS, DOCUMENTS, AND AGREEMENTS EXECUTED AND DELIVERED IN
CONNECTION HEREWITH, ARE VALID, BINDING AND ENFORCEABLE IN ACCORDANCE WITH THEIR
RESPECTIVE TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY ANY APPLICABLE
BANKRUPTCY, INSOLVENCY, MORATORIUM OR SIMILAR LAWS AFFECTING CREDITORS' RIGHTS
GENERALLY.
SECTION 4.
GENERAL PROVISIONS.
(A)
PAYMENT OF EXPENSES.
BORROWERS SHALL PAY OR REIMBURSE AGENT AND
LENDERS FOR ITS REASONABLE ATTORNEYS' FEES AND EXPENSES IN CONNECTION WITH THE
PREPARATION, NEGOTIATION AND EXECUTION OF THIS FIRST AMENDMENT AND THE DOCUMENTS
PROVIDED FOR HEREIN OR RELATED HERETO.
(B)
REAFFIRMATION OF LOAN AGREEMENT.
EXCEPT AS MODIFIED BY THE TERMS
HEREOF, ALL OF THE TERMS AND CONDITIONS OF THE LOAN AGREEMENT, AS AMENDED, AND
ALL OF THE OTHER EXISTING FINANCING AGREEMENTS ARE HEREBY REAFFIRMED AND SHALL
CONTINUE IN FULL FORCE AND EFFECT AS THEREIN WRITTEN.
(C)
THIRD PARTY RIGHTS.
NO RIGHTS ARE INTENDED TO BE CREATED
HEREUNDER FOR THE BENEFIT OF ANY THIRD PARTY DONEE, CREDITOR, OR INCIDENTAL
BENEFICIARY.
(D)
HEADINGS.
THE HEADINGS OF ANY PARAGRAPH OF THIS FIRST AMENDMENT
ARE FOR CONVENIENCE ONLY AND SHALL NOT BE USED TO INTERPRET ANY PROVISION
HEREOF.
2
(E)
MODIFICATIONS.
NO MODIFICATION HEREOF OR ANY AGREEMENT REFERRED
TO HEREIN SHALL BE BINDING OR ENFORCEABLE UNLESS IN WRITING AND SIGNED ON BEHALF
OF THE PARTY AGAINST WHOM ENFORCEMENT IS SOUGHT.
(F)
GOVERNING LAW.
THIS FIRST AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLIED TO
CONTRACTS TO BE PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK.
(G)
COUNTERPARTS.
THIS FIRST AMENDMENT MAY BE EXECUTED IN ANY NUMBER
OF AND BY DIFFERENT PARTIES HERETO ON SEPARATE COUNTERPARTS, ALL OF WHICH, WHEN
SO EXECUTED, SHALL BE DEEMED AN ORIGINAL, BUT ALL SUCH COUNTERPARTS SHALL
CONSTITUTE ONE AND THE SAME AGREEMENT.
ANY SIGNATURE DELIVERED BY A PARTY BY
FACSIMILE TRANSMISSION OR