SOLE DISCRETION.
(B)
CALYON SECURITY AGREEMENT.
ON OR BEFORE JANUARY 6, 2006, BORROWER
SHALL DELIVER TO AGENT A DULY EXECUTED AMENDED AND RESTATED SECURITY AGREEMENT,
ASSIGNMENT OF HEDGING AGREEMENT EXECUTED BY BORROWER AND CALYON FUTURES, IN FORM
AND CONTENT SATISFACTORY TO AGENT.
18.
Amendment/References.
The Loan Agreement and the Loan Documents
are hereby amended to be consistent with the terms of this Amendment. All
references in the Loan Agreement and the Loan Documents to (a) "Collateral"
shall include, without limitation, the Mortgaged Property (as defined in each of
the Mortgages), (b) "Credit Facility" shall include, without limitation, the
Term Loan, (c) the "Loan Agreement" shall mean the Loan Agreement as amended
hereby, (d) the "Loan Documents" shall include, without limitation, this
Amendment, the Term Notes, the Amended Line Notes, the Mortgages and all other
instruments or agreements executed pursuant to or in connection with the terms
hereof, (e) "Loan" or "Loans" shall include, without limitation, the Term Loan,
(f) "Note" or "Notes" shall include, without limitation, the Term Notes and the
Amended Line Notes and (g) "Obligations" shall include, without limitation, all
of Borrower's obligations to Agent and/or Lenders in connection with the Term
Loan.
19.
Amendment Fee.
Upon execution of this Amendment, Borrower shall
pay to Agent, for the benefit of Lenders, an amendment fee in the amount of
Fifty Thousand Dollars ($50,000.00) (the "Amendment Fee").
The foregoing
Amendment Fee is in addition to the interest and other amounts which Borrower is
required to pay under the Loan Documents, and is fully earned and nonrefundable.
20.
Further Agreements and Representations.
Borrower does hereby:
(A)
RATIFY, CONFIRM AND ACKNOWLEDGE THAT THE LOAN AGREEMENT, AS
AMENDED, AND THE OTHER LOAN DOCUMENTS CONTINUE TO BE AND ARE VALID, BINDING AND
IN FULL FORCE AND EFFECT;
(B)
COVENANT AND AGREE TO PERFORM ALL OBLIGATIONS OF BORROWER
CONTAINED HEREIN, UNDER THE LOAN AGREEMENT, AS AMENDED, AND THE OTHER LOAN
DOCUMENTS;
(C)
ACKNOWLEDGE AND AGREE THAT BORROWER HAS NO DEFENSE, SET-OFF,
COUNTERCLAIM OR CHALLENGE AGAINST THE PAYMENT OF ANY SUMS OWING UNDER LOAN
DOCUMENTS, THE ENFORCEMENT OF ANY OF THE TERMS OF THE LOAN AGREEMENT, AS
AMENDED, OR THE OTHER LOAN DOCUMENTS;
(D)
ACKNOWLEDGE AND AGREE THAT ALL REPRESENTATIONS AND WARRANTIES OF
BORROWER CONTAINED IN THE LOAN AGREEMENT AND/OR THE OTHER LOAN DOCUMENTS, AS
AMENDED, ARE TRUE, ACCURATE AND CORRECT ON AND AS OF THE DATE HEREOF AS IF MADE
ON AND AS OF THE DATE HEREOF;
(E)
REPRESENT AND WARRANT THAT NO DEFAULT OR EVENT OF DEFAULT EXISTS
AND ALL INFORMATION DESCRIBED IN THE FOREGOING BACKGROUND IS TRUE, ACCURATE AND
COMPLETE;
(F)
ACKNOWLEDGE AND AGREE THAT NOTHING CONTAINED HEREIN AND NO
ACTIONS TAKEN PURSUANT TO THE TERMS HEREOF IS INTENDED TO CONSTITUTE A NOVATION
OF THE LOAN AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND DO NOT CONSTITUTE
A RELEASE, TERMINATION OR WAIVER OF ANY OF THE RIGHTS OR REMEDIES GRANTED TO
AGENT OR ANY LENDER THEREIN, WHICH RIGHTS AND REMEDIES ARE HEREBY RATIFIED,
CONFIRMED, EXTENDED AND CONTINUED AS SECURITY FOR THE