BORROWER, AND MID ISLANDI
SF., AS LENDER AND CERTAIN OTHER PARTIES LISTED THEREIN,
AS AMENDED FROM TIME
TO TIME, THE PRE-PAYMENT MAKE-WHOLE AMOUNT FORGIVENESS DATE (AS SUCH TERM IS
DEFINED IN THE GULFSTREAM AGREEMENT) HAS BEEN EXTENDED SUCH THAT IT OCCURS ON OR
LATER THAN MARCH 31ST, 2009 (SUBJECT TO A RIGHT TO TERMINATE SUCH AGREEMENT ON
THE DATE THAT IS 15 DAYS SUBSEQUENT TO THE BMO EARLY TERMINATION DATE);
(E)
FOR THE PERIOD FROM THE DATE HEREOF UNTIL
THE TERMINATION DATE, THE REORGANIZATION PLAN SHALL NOT BE AMENDED IN ANY
MATERIAL RESPECTS THAT ARE ADVERSE TO THE LENDER WITHOUT THE CONSENT OF THE
LENDER;
(F)
ON OR BEFORE DECEMBER 1, 2008, THE AMENDED
AND RESTATED INTERCREDITOR AGREEMENT MADE AS OF THE 23RD DAY OF MAY, 2008 AMONG
THE LENDER, AS SENIOR LENDER, MID ISLANDI SF, AS MID LENDER, MID DEVELOPMENTS
INC., AS PERFORMANCE GUARANTOR AND THE BORROWER, AS BORROWER, SHALL BE AMENDED
ON TERMS AND CONDITIONS SATISFACTORY TO THE LENDER, ACTING REASONABLY, TO:
(A) INCLUDE THE NEW MID LOAN (MAINTAINING BMO'S PRIORITIES AND RIGHTS AS AGAINST
THE LENDER UNDER THE BRIDGE LOAN AGREEMENT AND ESTABLISHING THE SAME
UNDER THE
NEW MID LOAN AGREEMENT), (B) PROVIDE THAT ALL PROCEEDS FROM REORGANIZATION SALE
ASSETS BE USED TO REPAY THE LOAN IN PRIORITY TO ALL OTHER CREDITORS OF THE
BORROWER, AND (C) ALL SUCH OTHER CHANGES AS THE LENDER SHALL REASONABLY REQUIRE,
INCLUDING, WITHOUT LIMITATION AS MAY BE REQUIRED TO DOCUMENT ANY SUBORDINATE
CHARGES THAT THE NEW MID LENDER INTENDS TO TAKE IN RESPECT OF SANTA ANITA
PREMISES AND THE GOLDEN GATE PREMISES UNDER THE NEW MID LOAN;.
(G)
THE REPRESENTATIONS AND WARRANTIES OF THE
BORROWER SET OUT IN SECTION 6.1 OF THE LOAN AGREEMENT ARE TRUE AND CORRECT ON
THE DATE HEREOF PROVIDED IF ANY SUCH REPRESENTATION AND WARRANTY IS SPECIFICALLY
GIVEN AS OF ANY PARTICULAR DATE OR PARTICULAR PERIOD OF TIME, THEN SUCH
REPRESENTATION AND WARRANTY SHALL CONTINUE TO BE GIVEN AS AT SUCH DATE OR SUCH
PERIOD OF TIME;
(H)
AS OF THE DATE HEREOF, NO DEFAULT OR EVENT
OF DEFAULT HAS OCCURRED OR IS CONTINUING OR WOULD ARISE IMMEDIATELY AFTER GIVING
EFFECT TO OR AS A RESULT OF THE AMENDMENT HEREIN;
(I)
AS OF THE DATE HEREOF, NO MATERIAL
ADVERSE CHANGE SINCE MARCH 31ST, 2008 SHALL HAVE OCCURRED;
(J)
AS OF THE DATE HEREOF, PAYMENT IN FULL OF
ALL REASONABLE INVOICED FEES, INCLUDING FOR GREATER CERTAINTY, AN UPFRONT FEE OF
US$1,750,000 AND ALL REIMBURSABLE OUT-OF-POCKET EXPENSES PAYABLE BY THE BORROWER
ON OR PRIOR TO THE DATE HEREOF INCLUDING PAYMENT OF ALL REASONABLE FEES,
DISBURSEMENTS AND OUT-OF-POCKET EXPENSES OF COUNSEL TO THE AGENT AND THE
LENDERS; AND
(K)
ON THE DATE HEREOF, SUCH OTHER DOCUMENTATION
OR INFORMATION AS THE LENDER SHALL HAVE REASONABLY REQUESTED.
4
4.
Loan Agreement
Save as expressly amended by this Twentieth Amending Agreement, all other terms
and conditions of the Loan Agreement and each of the Loan Documents remain in
full force and effect, unamended, and this Twentieth Amending Agreement
constitutes a Loan Document