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.
3.2
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.
3.3
REPRESENTATIONS AND WARRANTIES.
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.
3.4
NO EVENT OF DEFAULT OR DEFAULT.
AFTER GIVING EFFECT TO THIS
AMENDMENT, NO EVENT OF DEFAULT OR DEFAULT HAS OCCURRED AND IS CONTINUING.
3.5
NO MATERIAL ADVERSE CHANGE.
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.
4.
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.
5.
MISCELLANEOUS.
5.1
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
3
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.
5.2
LOAN DOCUMENT.
THIS AMENDMENT SHALL BE A LOAN
DOCUMENT FOR ALL PURPOSES.
5.3
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.
5.4
SEVERABILITY; SECTION HEADINGS.
5.4.1
IF ANY PROVISION OR AGREEMENT IN OR OBLIGATION UNDER THIS AMENDMENT
SHALL BE HELD TO BE INVALID, ILLEGAL OR UNENFORCEABLE IN ANY JURISDICTION, THE
VALIDITY, LEGALITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS OR
OBLIGATIONS, OR OF