CONSTRUCTION SO REQUIRE, ALL WORDS HEREIN IN THE SINGULAR NUMBER HEREIN
SHALL BE DEEMED TO HAVE BEEN USED IN THE PLURAL, 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 LOAN
AGREEMENT OR THE APPLICABLE LOAN DOCUMENT.
THIS AMENDMENT SHALL BE CONSIDERED
PART OF THE LOAN AGREEMENT AND SHALL BE A LOAN DOCUMENT FOR ALL PURPOSES UNDER
THE LOAN AGREEMENT AND OTHER LOAN DOCUMENTS.
(C)
THIS AMENDMENT, THE LOAN 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 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 LOAN AGREEMENT AND SHALL BE
SUBJECT TO THE WAIVER OF JURY TRIAL AND NOTICE PROVISIONS OF THE LOAN 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 LENDER OF BORROWER'S DUTY
OF PERFORMANCE, INCLUDING, WITHOUT LIMITATION, ANY DUTIES UNDER ANY ACCOUNT OR
CONTRACT IN WHICH LENDER HAS A SECURITY INTEREST OR LIEN.
THIS AMENDMENT SHALL
BE BINDING UPON THE BORROWER AND ITS RESPECTIVE SUCCESSORS AND ASSIGNS.
(F)
IN FURTHERANCE AND NOT IN LIMITATION OF ANYTHING SET FORTH IN THE
INTERIM FINANCING ORDER, ANY OTHER FINANCING ORDER OR THE LOAN DOCUMENTS,
BORROWER SHALL PAY ALL COSTS AND EXPENSES INCURRED BY LENDER OR ANY OF LENDER'S
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
16
COUNSEL AND REASONABLE FEES AND EXPENSES OF IN-HOUSE 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