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 (A) THAT THE
OUTSTANDING PRINCIPAL BALANCE OF LOAN B AS OF THE DATE HEREOF IS $10,000,000,
(B) THAT INTEREST ON THE UNPAID PRINCIPAL BALANCE OF LOAN B HAS BEEN PAID
THROUGH DECEMBER 1, 2009, AND (C) THAT THE UNPAID PRINCIPAL BALANCE OF LOAN B,
TOGETHER WITH ACCRUED AND UNPAID INTEREST THEREON, IS DUE AND OWING SUBJECT TO
THE TERMS OF REPAYMENT HEREINAFTER SET FORTH, WITHOUT DEFENSE OR OFFSET.
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.
BORROWER AND LENDER
HEREBY AGREE 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 A, 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
insurance premiums with respect to the Property attributable to the period of
determination."
5.
SECTION 7.1 (FINANCIAL STATEMENTS) OF THE LOAN AGREEMENT IS
HEREBY AMENDED BY ADDING THE FOLLOWING SUBSECTION (K) IN ITS ENTIRETY AS
FOLLOWS:
"(K)
CONCURRENTLY WITH THE DELIVERY OF THE GUARANTOR QUARTERLY STATEMENTS
REQUIRED PURSUANT TO SUBSECTION (C) OF THIS SECTION 7.1, A COMPLIANCE
CERTIFICATE OF BORROWER, IN FORM AND SUBSTANCE ACCEPTABLE TO AGENT IN ITS SOLE
DISCRETION, SIGNED BY AN AUTHORIZED OFFICER OF THE MANAGING MEMBER OF BORROWER,
CERTIFYING COMPLIANCE WITH SECTION 7.19 (MANAGEMENT), SECTION 7.29 (DEBT SERVICE
RATIO), SECTION 7.30 (OCCUPANCY) AND SECTION 8.15 (DISTRIBUTIONS) OF THE LOAN
AGREEMENT, TOGETHER WITH DETAILED SUPPORTING BACK-UP INFORMATION ACCEPTABLE TO
AGENT IN ITS SOLE DISCRETION."
6.
SECTION 7.19 (MANAGEMENT) OF THE LOAN AGREEMENT IS HEREBY
AMENDED BY ADDING A NEW SUBSECTION (B) IN ITS ENTIRETY AS FOLLOWS:
"(b)
Borrower