DISCRETION):
(A)
SIGNED COPIES.
THE BORROWER, THE LENDERS AND THE AGENT SHALL HAVE
EXECUTED A COPY HEREOF, AND DELIVERED THE FOREGOING TO THE AGENT AT 1095 AVENUE
OF THE AMERICAS, NEW YORK, NEW YORK 10036 (ATTENTION: LOANS ADMINISTRATION);
(B)
NO CHANGE.
ON THE AMENDMENT CLOSING DATE, BOTH BEFORE AND AFTER
GIVING EFFECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT TO BE EFFECTIVE
ON THE AMENDMENT CLOSING DATE, NO MATERIAL ADVERSE CHANGE SHALL HAVE OCCURRED
SINCE SEPTEMBER 5, 2007;
(C)
NO DEFAULTS.
NO DEFAULT OR EVENT OF DEFAULT SHALL EXIST;
(D)
ACCURACY OF REPRESENTATIONS.
EACH REPRESENTATION AND WARRANTY
MADE BY THE BORROWER IN THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE
TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE AMENDMENT CLOSING DATE WITH
THE SAME EFFECT AS THOUGH MADE AT AND AS OF SUCH DATE (EXCEPT FOR THOSE THAT
SPECIFICALLY SPEAK AS OF A PRIOR DATE); AND
(E)
GUARANTOR'S CONSENT.
EACH OF THE GUARANTORS SHALL HAVE EXECUTED A
CONFIRMING CONSENT, SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS ANNEX A OR
OTHERWISE SATISFACTORY TO THE AGENT, AND DELIVERED THE SAME TO THE AGENT AT 1095
AVENUE OF THE AMERICAS, NEW YORK, NEW YORK 10036 (ATTENTION: LOANS
ADMINISTRATION) OR SUCH OTHER PLACE DIRECTED BY THE AGENT.
(F)
AMENDMENT FEE.
THE BORROWER SHALL HAVE PAID TO THE LENDERS AN
AMENDMENT FEE IN THE AMOUNT OF $62,500.
6.
LIMITED NATURE OF AMENDMENT. THE AMENDMENT SET FORTH HEREIN IS
LIMITED PRECISELY AS WRITTEN AND SHALL NOT BE DEEMED TO PREJUDICE ANY RIGHT OR
RIGHTS WHICH THE AGENT OR THE LENDERS MAY NOW HAVE OR MAY HAVE IN THE FUTURE
UNDER OR IN CONNECTION WITH THE LOAN AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. EXCEPT AS EXPRESSLY AMENDED HEREBY, THE TERMS AND PROVISIONS OF THE
LOAN AGREEMENT AND ALL OTHER LOAN DOCUMENTS REMAIN IN FULL FORCE AND EFFECT.
7.
THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO CHOICE OF LAW
DOCTRINE THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION.
2
8.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE MATTERS COVERED HEREBY
AND THEREBY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
9.
JURISDICTION, WAIVER OF JURY TRIAL.
THE BORROWER HEREBY AGREES
THAT ANY LEGAL ACTION OR PROCEEDING AGAINST IT WITH RESPECT TO THIS AMENDMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK CITY
OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AS THE
AGENT OR ANY LENDER MAY ELECT, AND, BY EXECUTION AND DELIVERY HEREOF, THE
BORROWER ACCEPTS AND CONSENTS FOR ITSELF AND IN RESPECT TO ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS, UNLESS WAIVED IN WRITING BY THE AGENT AND THE MAJORITY LENDERS.