EFFECTIVE DATE, (I) THE BORROWERS
SHALL BE IN COMPLIANCE WITH ALL THE TERMS AND PROVISIONS SET FORTH IN THE
EXISTING CREDIT AGREEMENT ON ITS PART TO BE OBSERVED OR PERFORMED AND (II) BOTH
BEFORE AND AFTER GIVING EFFECT TO THE AMENDMENT, NO DEFAULT SHALL HAVE OCCURRED
AND BE CONTINUING ON SUCH DATE.
2.6
REPRESENTATIONS AND WARRANTIES.
ON THE AMENDMENT EFFECTIVE DATE,
THE REPRESENTATIONS AND WARRANTIES IN THE LOAN DOCUMENTS SHALL BE TRUE AND
CORRECT AS OF SUCH DATE, UNLESS SUCH REPRESENTATIONS AND WARRANTIES RELATE TO AN
EARLIER DATE, BOTH BEFORE AND AFTER GIVING EFFECT TO THE AMENDMENT.
SECTION 3.
MASTER LEASE ESTOPPEL AGREEMENTS.
THE MASTER LEASE ESTOPPEL
AGREEMENTS REQUIRED TO BE DELIVERED PURSUANT TO THE POST-CLOSING LETTER
DELIVERED IN CONNECTION WITH THE EXISTING CREDIT AGREEMENT WILL BE DULY EXECUTED
AND DELIVERED TO THE LENDER BY THE PARTIES THERETO, TO THE EXTENT THAT A
BORROWER IS AFFILIATED WITH THE PARTY TO EACH SUCH MASTER LEASE ESTOPPEL
AGREEMENTS, AND WITH RESPECT TO ANY UNAFFILIATED PARTY, BORROWER WILL USE ITS
REASONABLE BEST EFFORTS TO OBTAIN CONSENT AND SIGNATURE, IN A FORM AND SUBSTANCE
SATISFACTORY TO THE LENDER, WITHIN 90 DAYS OF AN AGREEMENT AMONG THE BORROWERS
AND THE LENDER REGARDING THE FORM OF SUCH MASTER LEASE ESTOPPEL AGREEMENTS.
SECTION 4.
LIMITED EFFECT.
EXCEPT AS EXPRESSLY AMENDED AND MODIFIED BY
THIS AMENDMENT, THE EXISTING CREDIT AGREEMENT SHALL CONTINUE TO BE, AND SHALL
REMAIN, IN FULL FORCE AND EFFECT IN ACCORDANCE WITH ITS TERMS; PROVIDED,
HOWEVER, THAT REFERENCE THEREIN AND HEREIN TO THE "LOAN DOCUMENTS" SHALL BE
DEEMED TO INCLUDE, IN ANY EVENT, THIS AMENDMENT.
EACH REFERENCE TO THE EXISTING
CREDIT AGREEMENT IN ANY OF THE LOAN DOCUMENTS SHALL BE DEEMED TO BE A REFERENCE
TO THE EXISTING CREDIT AGREEMENT AS AMENDED HEREBY.
THE EXECUTION OF THIS
AMENDMENT BY THE LENDER OR CUSTODIAN SHALL NOT OPERATE AS A WAIVER OF ANY OF
THEIR RIGHTS,
10
POWERS OR PRIVILEGES UNDER THE EXISTING CREDIT AGREEMENT OR UNDER ANY OF THE
OTHER LOAN DOCUMENTS EXCEPT AS EXPRESSLY SET FORTH HEREIN.
SECTION 5.
COUNTERPARTS.
THIS AMENDMENT MAY BE EXECUTED BY EACH OF THE
PARTIES HERETO ON ANY NUMBER OF SEPARATE COUNTERPARTS, EACH OF WHICH SHALL BE AN
ORIGINAL AND ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME
INSTRUMENT.
DELIVERY OF AN EXECUTED SIGNATURE PAGE OF THIS AMENDMENT IN
PORTABLE DOCUMENT FORMAT (PDF) OR BY FACSIMILE TRANSMISSION SHALL BE EFFECTIVE
AS DELIVERY OF AN EXECUTED ORIGINAL COUNTERPART OF THIS AMENDMENT.
SECTION 6.
GOVERNING LAW.
THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
THIS AMENDMENT INCORPORATES BY REFERENCE, AND THE BORROWERS AND LENDER HEREBY
AGREE TO BE SUBJECT TO, THE PROVISIONS SET FORTH IN SECTION 11.11 OF THE
EXISTING CREDIT AGREEMENT.
[SIGNATURE PAGE FOLLOWS]
11
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of the day and year first above written.
BORROWERS
ARC HOUSING LLC
By
/s/Scott L. Gesell
Name:
Scott L. Gesell
Title: