AND OWING TO LENDER UNDER THE LOAN DOCUMENTS HAVE
BEEN PAID CURRENT AS OF THE EFFECTIVE DATE OF THIS AGREEMENT;
1.7
THE PAYMENT TO LENDER OF AN EXTENSION FEE, IN AN AMOUNT TOTALING
EIGHTY-FIVE THOUSAND THREE HUNDRED THIRTEEN AND NO/100THS DOLLARS ($85,313.00),
IN CONNECTION WITH THE MODIFICATION OF BOTH OF (I) THE LOAN AND (II) THE
MONTEREY LOAN;
1.8
THE PAYMENT TO LENDER OF FIVE MILLION AND NO/100THS DOLLARS
($5,000,000.00), WHICH SHALL BE APPLIED AGAINST THE OUTSTANDING PRINCIPAL AMOUNT
OWING IN CONNECTION WITH THE LOAN, AND WHICH PRINCIPAL BALANCE REDUCTION SHALL
REDUCE LENDER'S COMMITMENT BY A LIKE AMOUNT; AND
1.9
ALL THE CONDITIONS IN SECTION 1 OF THE MODIFICATION AGREEMENT FOR THE
MONTEREY LOAN HAVE BEEN SATISFIED.
2.
REPRESENTATIONS AND WARRANTIES.
BORROWER HEREBY REPRESENTS AND
WARRANTS THAT NO DEFAULT, BREACH OR FAILURE OF CONDITION HAS OCCURRED, OR WOULD
EXIST WITH NOTICE OR THE LAPSE OF TIME OR BOTH, UNDER ANY OF THE LOAN DOCUMENTS
(AS MODIFIED BY THIS AGREEMENT) AND THAT ALL REPRESENTATIONS AND WARRANTIES
HEREIN AND IN THE OTHER LOAN DOCUMENTS, WHICH REPRESENTATIONS AND WARRANTIES ARE
EXPRESSLY INCORPORATED HEREIN BY THIS REFERENCE AS IF SET FORTH IN THEIR
ENTIRETY IN THIS AGREEMENT, ARE TRUE AND CORRECT AS OF THE DATE HEREOF, WHICH
REPRESENTATIONS AND WARRANTIES SHALL SURVIVE EXECUTION OF THIS AGREEMENT.
Page 2 of 27
Loan No. 105093
3.
MODIFICATION OF LOAN DOCUMENTS GENERALLY.
THE LOAN DOCUMENTS ARE
HEREBY SUPPLEMENTED AND MODIFIED TO INCORPORATE THE FOLLOWING, WHICH SHALL
SUPERSEDE AND PREVAIL OVER ANY CONFLICTING PROVISIONS OF THE LOAN DOCUMENTS:
3.1
THE "MATURITY DATE" OF THE LOAN SHALL BE THE EARLIER OF (A) DECEMBER
1, 2010, UNLESS SUCH DATE IS EXTENDED PURSUANT TO SECTION 1.6 OF THE LOAN
AGREEMENT (THE LATER OF SUCH DATES, THE "LOAN TERM DATE") AND (B) THE DATE THAT
IS THE MATURITY DATE OF THE PARENT CREDIT AGREEMENT; PROVIDED, HOWEVER, THAT THE
MATURITY DATE SHALL NOT OCCUR EARLIER THAN THE LOAN TERM DATE IF THE PARENT
CREDIT AGREEMENT IS ACCELERATED, MATURES, EXPIRES OR IS TERMINATED PRIOR TO THE
LOAN TERM DATE AND A FORBEARANCE AGREEMENT IS IN PLACE BY AND AMONG OBLIGORS AND
THE PARENT CREDIT PARTIES, WHICH FORBEARANCE AGREEMENT IS IN A FORM ACCEPTABLE
TO LENDER IN LENDER'S SOLE AND ABSOLUTE DISCRETION.
ALL SUMS ACTUALLY OWING ON
THE LOAN, INCLUDING BUT NOT LIMITED TO ALL OUTSTANDING PRINCIPAL, ACCRUED AND
UNPAID INTEREST, OUTSTANDING LATE CHARGES, UNPAID FEES, AND ALL OTHER AMOUNTS
AND OBLIGATIONS OUTSTANDING UNDER THE AMENDED AND RESTATED NOTE (AS DEFINED
BELOW) AND THE OTHER LOAN DOCUMENTS, SHALL BE DUE AND PAYABLE NO LATER THAN THE
MATURITY DATE.
3.2
SIMULTANEOUSLY WITH THE EXECUTION OF THIS AGREEMENT, BORROWER HAS
EXECUTED AND DELIVERED THAT CERTAIN AMENDED AND RESTATED PROMISSORY NOTE SECURED
BY DEED OF TRUST ("AMENDED AND RESTATED NOTE"), IN THE FORM OF EXHIBIT A
ATTACHED HERETO AND DATED AS OF EVEN DATE HEREWITH.
THE NOTE IS HEREBY REPLACED
BY THE AMENDED AND RESTATED NOTE AND SHALL BE EFFECTIVE AS OF THE DATE HEREOF.
THE TERMS, COVENANTS AND CONDITIONS OF THE AMENDED AND RESTATED NOTE SHALL