make a principal curtailment
of Loan A in the amount of Five Million Dollars ($5,000,000) and Agent
acknowledges that Guarantor has entered into that certain Restructure Term Sheet
dated October 22, 2009 among Guarantor and certain lenders more particularly
described therein (the "Restructure Term Sheet").
E.
The Borrower has requested and the Agent has agreed to (i)
reduce the maximum principal amount of Loan A from Thirty Million Dollars
($30,000,000) to Twenty-Four Million Five Hundred Thirty-Eight Thousand Dollars
($24,538,000), (ii) waive the Event of Default caused by the Borrower's failure
to comply with the occupancy requirement for the fiscal quarter ending September
30, 2009 and (iii) make such other changes and settlements as more particularly
set forth herein.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, receipt of which is hereby acknowledged, Borrower and Lender
agree as follows:
1.
BORROWER AND AGENT AGREE THAT THE RECITALS ABOVE ARE A PART
OF THIS AGREEMENT.
UNLESS OTHERWISE EXPRESSLY DEFINED IN THIS AGREEMENT, TERMS
DEFINED IN THE LOAN AGREEMENT SHALL HAVE THE SAME MEANING UNDER THIS AGREEMENT.
2.
THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT FROM AND AFTER
THE DATE HEREOF, THE MAXIMUM PRINCIPAL AMOUNT OF THE LOAN SHALL BE TWENTY-FOUR
MILLION FIVE HUNDRED THIRTY-EIGHT THOUSAND DOLLARS ($24,538,000).
ALL
REFERENCES CONTAINED IN THE LOAN AGREEMENT TO "THIRTY MILLION DOLLARS" SHALL BE
READ AS "TWENTY-FOUR MILLION FIVE HUNDRED THIRTY-EIGHT THOUSAND DOLLARS" AND ALL
REFERENCES TO THE AMOUNT "$30,000,000" SHALL BE READ AS "$24,538,000".
3.
BORROWER HEREBY ACKNOWLEDGES AND AGREES THAT PURSUANT TO THE
TERMS OF SECTION 7.30 (OCCUPANCY COVENANT) OF THE LOAN AGREEMENT PRIOR TO THE
AMENDMENT OF SUCH COVENANT PURSUANT TO THIS AGREEMENT, BORROWER WAS REQUIRED TO
MAINTAIN AT ALL TIMES, TESTED AS OF THE END OF EACH FISCAL QUARTER DURING THE
TERM OF EACH LOAN, A MINIMUM AVERAGE DAILY OCCUPANCY OF EIGHTY-FIVE PERCENT
(85%), MEASURED ON A UNIT BASIS (THE "OCCUPANCY COVENANT").
PURSUANT TO SECTION
9.3 OF THE LOAN AGREEMENT, THE FAILURE TO COMPLY WITH THE OCCUPANCY COVENANT
CONSTITUTES AN EVENT OF DEFAULT UNDER EACH LOAN AGREEMENT.
AGENT HEREBY AGREES
TO WAIVE THE EVENT OF DEFAULT CAUSED BY THE BORROWER'S FAILURE TO COMPLY WITH
THE OCCUPANCY COVENANT FOR THE FISCAL QUARTER ENDING SEPTEMBER 30, 2009.
4.
SECTION 1.1 (CERTAIN DEFINED TERMS) OF THE LOAN AGREEMENT IS
HEREBY AMENDED BY AMENDING AND RESTATING THE DEFINITIONS OF "DEBT SERVICE" AND
"NET OPERATING INCOME" IN THEIR ENTIRETY AS FOLLOWS:
"Debt Service" means for any period of determination thereof an amount equal to
the total of the aggregate amount of all payments of principal and interest with
respect to the Term Loan and Loan B, excluding any balloon payment.
"Net Operating Income" means for any period of determination thereof an amount
equal to the total of the sum of operating revenues less operating expenses.
For purposes hereof, operating expenses shall include all property operating
expenses, maintenance and repair costs, leasing and administrative costs,
Management Fees to the extent actually paid in cash and real estate taxes and