CREDIT AGREEMENT OR
ANY OTHER AGREEMENT, LEASE OR INSTRUMENT TO WHICH SUCH OBLIGOR IS A PARTY OR BY
WHICH IT OR ITS PROPERTIES MAY BE BOUND OR AFFECTED; OR (E) RESULT IN, OR
REQUIRE, THE CREATION OR IMPOSITION OF ANY LIEN (OTHER THAN AS CREATED
HEREUNDER), UPON OR WITH RESPECT TO ANY OF THE PROPERTIES NOW OWNED OR HEREAFTER
ACQUIRED BY SUCH PERSON.
4.2
LEGALLY ENFORCEABLE AGREEMENTS.
THIS AMENDMENT IS A LEGAL, VALID
AND BINDING OBLIGATION OF SUCH OBLIGOR, ENFORCEABLE AGAINST SUCH OBLIGOR IN
ACCORDANCE WITH ITS TERMS, EXCEPT TO THE EXTENT THAT SUCH ENFORCEMENT MAY BE
LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY AND OTHER SIMILAR LAWS AFFECTING
CREDITORS' RIGHTS GENERALLY.
4.3
BOTH BEFORE AND AFTER GIVING EFFECT TO THIS AMENDMENT, THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE VIII OF THE FINANCING
AGREEMENT ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS WITH THE SAME EFFECT AS
IF MADE ON THE DATE HEREOF, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND
WARRANTIES EXPRESSLY RELATE TO AN EARLIER DATE.
4.4
AFTER GIVING EFFECT TO THIS AMENDMENT, NO EVENT OF DEFAULT OR
DEFAULT HAS OCCURRED AND IS CONTINUING.
4.5
SINCE JANUARY 31, 2002, THERE HAS BEEN NO DEVELOPMENT OR EVENT, OR
ANY PROSPECTIVE DEVELOPMENT OR EVENT, WHICH HAS HAD OR COULD RESULT IN A
MATERIAL ADVERSE CHANGE.
5.
EXECUTION BY GUARANTORS.
EACH
GUARANTOR, AS A GUARANTOR, IS EXECUTING THIS AMENDMENT AND CONSENTING TO THE
MODIFICATIONS TO THE FINANCING AGREEMENT SET FORTH HEREIN.
EACH GUARANTOR
HEREBY REAFFIRMS ITS GUARANTY SET FORTH IN THE FINANCING AGREEMENT AND
ACKNOWLEDGES THAT ALL CAPEX LOANS INCURRED BY ANY OTHER OBLIGOR SHALL
AUTOMATICALLY, WITHOUT NOTICE OR ACTION OF ANY PARTY, BE A GUARANTY OBLIGATION.
26
6.
MISCELLANEOUS.
6.1
FINANCING AGREEMENT.
EXCEPT AS EXPRESSLY SET
FORTH HEREIN, THIS AMENDMENT SHALL NOT, BY IMPLICATION OR OTHERWISE, LIMIT,
IMPAIR, CONSTITUTE A WAIVER OF, OR OTHERWISE AFFECT THE RIGHTS AND REMEDIES OF
THE LENDERS UNDER THE FINANCING AGREEMENT, AND SHALL NOT ALTER, MODIFY, AMEND OR
IN ANY WAY AFFECT ANY OF THE TERMS, CONDITIONS, OBLIGATIONS, COVENANTS OR
AGREEMENTS CONTAINED IN THE FINANCING AGREEMENT, ALL OF WHICH ARE RATIFIED AND
AFFIRMED IN ALL RESPECTS AND SHALL CONTINUE IN FULL FORCE AND EFFECT.
NOTHING
HEREIN SHALL BE DEEMED TO ENTITLE ANY OBLIGOR TO A CONSENT TO, OR A WAIVER,
AMENDMENT, MODIFICATION OR OTHER CHANGE OF, ANY OF THE TERMS, CONDITIONS,
OBLIGATIONS, COVENANTS OR AGREEMENTS CONTAINED IN THE FINANCING AGREEMENT IN
SIMILAR OR DIFFERENT CIRCUMSTANCES.
THIS AMENDMENT SHALL APPLY AND BE EFFECTIVE
ONLY WITH RESPECT TO THE PROVISIONS OF THE FINANCING AGREEMENT SPECIFICALLY
REFERRED TO HEREIN.
AFTER THE DATE HEREOF, ANY REFERENCE TO "THE FINANCING
AGREEMENT," IN THE FINANCING AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL MEAN
THE FINANCING AGREEMENT AS AMENDED HEREBY.
6.2
LOAN DOCUMENT.
THIS AMENDMENT SHALL BE A LOAN
DOCUMENT FOR ALL PURPOSES.
6.3
APPLICABLE LAW.
THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES OTHER THAN NYGOL 5-1401.
6.4
SEVERABILITY; SECTION HEADINGS.
6.4.1
IF