SUBJECT.
(D)
NO AUTHORIZATION OR APPROVAL OR OTHER ACTION BY, AND NO NOTICE TO
OR FILING OR REGISTRATION WITH, ANY GOVERNMENTAL AUTHORITY OR REGULATORY BODY
(OTHER THAN THOSE WHICH HAVE BEEN OBTAINED AND ARE IN FORCE AND EFFECT) IS
REQUIRED IN CONNECTION WITH THE EXECUTION, DELIVERY AND PERFORMANCE BY THE
BORROWER OR THE GUARANTOR OF THIS AGREEMENT AND ALL AGREEMENTS, DOCUMENTS AND
INSTRUMENTS EXECUTED AND DELIVERED PURSUANT TO THIS AGREEMENT.
(E)
NO EVENT OF DEFAULT OR DEFAULT EXISTS UNDER THE CREDIT AGREEMENT
OR WOULD EXIST AFTER GIVING EFFECT TO THIS AGREEMENT.
4.
MISCELLANEOUS.
THE PARTIES HERETO HEREBY FURTHER AGREE AS
FOLLOWS:
(A)
PAYMENT OF FEES AND COSTS.
THE BORROWER HEREBY AGREES TO PAY (I)
AN AMENDMENT FEE IN THE AMOUNT OF $15,356 (THE "AMENDMENT FEE") AND (II) ALL
REASONABLE OUT-OF-POCKET COSTS AND EXPENSES (EVIDENCED BY INVOICES IN REASONABLE
DETAIL) INCURRED BY THE LENDER (INCLUDING THE REASONABLE FEES AND EXPENSES OF
ITS COUNSEL) IN CONNECTION WITH THE PREPARATION, EXECUTION AND DELIVERY OF THIS
AGREEMENT.
THIS AGREEMENT SHALL NOT BE EFFECTIVE UNTIL THE BORROWER SHALL HAVE
(I) PAID THE AMENDMENT FEE TO THE LENDER AND (II) PAID TO LENDER'S COUNSEL THE
FEES SET FORTH ON THAT CERTAIN INVOICE DATED JUNE 30, 2005.
(B)
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ONE OR MORE
COUNTERPARTS, EACH OF WHICH, WHEN EXECUTED AND DELIVERED, SHALL BE DEEMED TO BE
AN ORIGINAL AND ALL OF WHICH COUNTERPARTS, TAKEN TOGETHER, SHALL CONSTITUTE BUT
ONE AND THE SAME DOCUMENT WITH THE SAME FORCE AND EFFECT AS IF THE SIGNATURES OF
ALL OF THE PARTIES WERE ON A SINGLE COUNTERPART, AND IT SHALL NOT BE NECESSARY
IN MAKING PROOF OF THIS AGREEMENT TO PRODUCE MORE THAN ONE (1) SUCH COUNTERPART.
(C)
HEADINGS.
HEADINGS USED IN THIS AGREEMENT ARE FOR CONVENIENCE OF
REFERENCE ONLY AND SHALL NOT AFFECT THE CONSTRUCTION OF THIS AGREEMENT.
(D)
INTEGRATION.
THIS AGREEMENT, THE OTHER AGREEMENTS AND DOCUMENTS
EXECUTED AND DELIVERED PURSUANT TO THIS AGREEMENT, THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE AGREEMENT AMONG THE PARTIES HERETO
WITH RESPECT TO THE SUBJECT MATTER HEREOF.
(E)
GOVERNING LAW.
THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS AND DECISIONS OF SAID STATE, INCLUDING
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW BUT EXCLUDING
ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAWS RULES.
2
(F)
BINDING EFFECT.
THIS AGREEMENT SHALL BE BINDING UPON AND INURE
TO THE BENEFIT OF AND BE ENFORCEABLE BY THE BORROWER, THE GUARANTOR AND THE
LENDER AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
EXCEPT AS EXPRESSLY SET
FORTH TO THE CONTRARY HEREIN, THIS AGREEMENT SHALL NOT BE CONSTRUED SO AS TO
CONFER ANY RIGHT OR BENEFIT UPON ANY PERSON OTHER THAN THE BORROWER, THE
GUARANTOR AND THE LENDER AND THEIR RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS.
(G)
AMENDMENT; WAIVER.
THE PARTIES HERETO AGREE AND ACKNOWLEDGE THAT
NOTHING CONTAINED IN THIS AGREEMENT IN ANY MANNER OR