MARCH 31, 2009, NOT LATER THAN APRIL 30, 2009.
(D)
NOTWITHSTANDING THE SUBSEQUENT EXECUTION AND
EFFECTIVENESS AS A WHOLE OF THIS AMENDMENT, UPON SATISFACTION OF THE CONDITIONS
PRECEDENT SET FORTH HEREIN, THE MODIFICATIONS CONTAINED IN SECTION 3.4 (A) AND
3.4 (B) SHALL BE DEEMED TO HAVE BECOME EFFECTIVE AS OF DECEMBER 31, 2008.
3.5
EXTENSION OPTION. THE BORROWER HEREBY
ACKNOWLEDGES THAT (I) THE MATURITY DATE HAS NOT BEEN EXTENDED UNDER SECTION 2.14
OF THE LOAN AGREEMENT, (II) SECTION 2.14 IS OF NO FURTHER FORCE AND EFFECT AND
THE LENDERS HAVE NO FURTHER OPTION TO EXTEND THE LOAN, AND (III) THE MATURITY
DATE OF THE LOAN IS NOVEMBER 13, 2009 AND IS NOT SUBJECT TO FURTHER EXTENSION.
4.
FORMATION AND ORGANIZATIONAL DOCUMENTS.
BORROWER HAS PREVIOUSLY DELIVERED TO ADMINISTRATIVE AGENT ALL OF THE RELEVANT
FORMATION AND ORGANIZATIONAL DOCUMENTS OF BORROWER, OF THE PARTNERS OR JOINT
VENTURERS OF BORROWER (IF ANY), AND OF ALL GUARANTORS OF THE LOAN (IF ANY), AND
ALL SUCH FORMATION DOCUMENTS REMAIN IN FULL FORCE AND EFFECT AND HAVE NOT BEEN
AMENDED OR MODIFIED SINCE THEY WERE DELIVERED TO ADMINISTRATIVE AGENT. BORROWER
HEREBY CERTIFIES THAT: (I) THE ABOVE DOCUMENTS ARE ALL OF THE RELEVANT FORMATION
AND ORGANIZATIONAL DOCUMENTS OF BORROWER; (II) THEY REMAIN IN FULL FORCE AND
EFFECT; AND (III) THEY HAVE NOT BEEN AMENDED OR MODIFIED SINCE THEY WERE
PREVIOUSLY DELIVERED TO ADMINISTRATIVE AGENT.
5.
NON-IMPAIRMENT. EXCEPT AS EXPRESSLY
PROVIDED HEREIN, NOTHING IN THIS AGREEMENT SHALL ALTER OR AFFECT ANY PROVISION,
CONDITION, OR COVENANT CONTAINED IN THE NOTE OR OTHER LOAN DOCUMENT OR AFFECT OR
IMPAIR ANY RIGHTS, POWERS, OR REMEDIES OF ADMINISTRATIVE AGENT OR LENDERS, IT
BEING THE INTENT OF THE PARTIES HERETO THAT THE PROVISIONS OF THE NOTE AND OTHER
LOAN DOCUMENTS SHALL CONTINUE IN FULL FORCE AND EFFECT EXCEPT AS EXPRESSLY
MODIFIED HEREBY.
6.
MISCELLANEOUS. THE HEADINGS USED IN
THIS AGREEMENT ARE FOR CONVENIENCE ONLY AND SHALL BE DISREGARDED IN INTERPRETING
THE SUBSTANTIVE PROVISIONS OF THIS AGREEMENT. TIME IS OF THE ESSENCE OF EACH
TERM OF THE LOAN DOCUMENTS, INCLUDING THIS AGREEMENT. IF ANY PROVISION OF THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS SHALL BE DETERMINED BY A COURT OF
COMPETENT JURISDICTION TO BE INVALID, ILLEGAL OR UNENFORCEABLE, THAT PORTION
SHALL BE DEEMED SEVERED FROM THIS AGREEMENT AND THE REMAINING PARTS SHALL REMAIN
IN FULL FORCE AS THOUGH THE INVALID, ILLEGAL, OR UNENFORCEABLE PORTION HAD NEVER
BEEN A PART THEREOF.
7.
INTEGRATION; INTERPRETATION. THE LOAN
DOCUMENTS, INCLUDING THIS AGREEMENT, CONTAIN OR EXPRESSLY INCORPORATE BY
REFERENCE THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE MATTERS
CONTEMPLATED THEREIN AND SUPERSEDE ALL PRIOR NEGOTIATIONS OR AGREEMENTS, WRITTEN
OR ORAL. THE LOAN DOCUMENTS SHALL NOT BE MODIFIED EXCEPT BY WRITTEN INSTRUMENT
EXECUTED BY ALL PARTIES. ANY REFERENCE TO THE LOAN DOCUMENTS INCLUDES ANY
AMENDMENTS, RENEWALS OR EXTENSIONS NOW OR HEREAFTER APPROVED BY ADMINISTRATIVE
AGENT AND LENDERS IN WRITING.
3
8.
EXECUTION IN COUNTERPARTS. TO
FACILITATE EXECUTION, THIS DOCUMENT MAY BE EXECUTED IN AS MANY COUNTERPARTS AS
MAY BE CONVENIENT OR REQUIRED. IT SHALL NOT