may be further amended or
modified from time to time, the "Parent
Credit Agreement") by and among Obligors, as obligors, Bank of America, N.A., a
national banking association, as administrative agent for the "Lenders" (as
defined in the Parent Credit Agreement), Swingline Lender and L/C Issuer
("BofA"), and the "Lenders" (as defined in the Credit Agreement) (such Lenders
and BofA shall be referred to together as the "Parent Credit Parties").
E.
By this Agreement, Borrower and Lender intend to modify and amend
certain terms and provisions of the Loan Documents.
NOW, THEREFORE, Borrower and Lender agree as follows:
1.
CONDITIONS PRECEDENT. THE FOLLOWING ARE CONDITIONS PRECEDENT TO
LENDER'S OBLIGATIONS UNDER THIS AGREEMENT, WHICH CONDITIONS HAVE BEEN MET AS OF
OR BEFORE THE DATE HEREOF:
Page 1 of 27
Loan No. 105093
1.1
RECEIPT AND APPROVAL BY LENDER OF (I) A DATE DOWN TO TITLE POLICY
NO. NCS-307614-DC72 DATED OCTOBER 3, 2007, ISSUED BY FIRST AMERICAN TITLE
INSURANCE COMPANY ("TITLE COMPANY"); (II) A DATE DOWN TO TITLE POLICY NO.
NCS-307614-DC72 DATED OCTOBER 3, 2007, ISSUED BY TITLE COMPANY; (III) ASSURANCE
ACCEPTABLE TO LENDER, WITHOUT DELETION OR EXCEPTION OTHER THAN THOSE EXPRESSLY
APPROVED BY LENDER IN WRITING, THAT THE PRIORITY AND VALIDITY OF THE DEED OF
TRUST HAS NOT BEEN AND WILL NOT BE IMPAIRED BY THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY; AND (IV) A POLICY OF TITLE INSURANCE
ACCEPTABLE TO LENDER INSURING THE INTERESTS OF LENDER PURSUANT TO THE GUARANTY
DEED OF TRUST (DEFINED BELOW);
1.2
RECEIPT BY LENDER OF THE EXECUTED ORIGINALS OF (I) THIS AGREEMENT;
(II) A SECURED REPAYMENT AND PERFORMANCE GUARANTY (SECURED LOAN) IN FAVOR OF
LENDER AND EXECUTED BY MONTEREY BORROWER ("SECURED REPAYMENT AND PERFORMANCE
GUARANTY"); (III) A GUARANTY DEED OF TRUST WITH ABSOLUTE ASSIGNMENT OF LEASES
AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (THE "GUARANTY DEED OF TRUST");
(IV) A MODIFICATION AGREEMENT IN FORM AND SUBSTANCE ACCEPTABLE TO LENDER IN
LENDER'S SOLE DISCRETION AND EXECUTED BY MONTEREY BORROWER IN CONNECTION WITH
THE MONTEREY LOAN; (V) A FIRST AMENDMENT TO THE DEED OF TRUST (THE "FIRST DOT
AMENDMENT"); AND (VI) ANY AND ALL OTHER DOCUMENTS AND AGREEMENTS WHICH ARE
REQUIRED BY THIS AGREEMENT OR BY ANY OTHER LOAN DOCUMENT, EACH IN FORM AND
CONTENT ACCEPTABLE TO LENDER;
1.3
RECORDATION (A) IN THE OFFICIAL RECORDS OF (I) THE FIRST DOT
AMENDMENT, AND (II) ANY OTHER DOCUMENTS WHICH ARE REASONABLY REQUIRED TO BE
RECORDED IN CONNECTION WITH THIS AGREEMENT OR BY ANY OTHER LOAN DOCUMENT (IF
ANY); AND (B) OF THE GUARANTY DEED OF TRUST IN THE OFFICIAL RECORDS OF MONTEREY
COUNTY, CALIFORNIA;
1.4
REIMBURSEMENT TO LENDER BY BORROWER OF LENDER'S ACTUAL COSTS AND
EXPENSES INCURRED IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY, INCLUDING, WITHOUT LIMITATION, TITLE INSURANCE COSTS,
RECORDING FEES, REASONABLE ATTORNEYS' FEES, ENGINEERS' AND INSPECTION FEES AND
DOCUMENTATION COSTS AND CHARGES, WHETHER SUCH SERVICES ARE FURNISHED BY LENDER'S
EMPLOYEES OR AGENTS OR BY INDEPENDENT CONTRACTORS;
1.5
THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT ARE
TRUE AND CORRECT;
1.6
ALL PAYMENTS DUE