EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, AND
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AMENDMENT SHALL NOT CAUSE OR
CONSTITUTE ANY SUCH DEFAULT OR EVENT OF DEFAULT.
5.
REAFFIRMATION OF GUARANTY. EACH OF GUARANTOR AND MEZZANINE
PROPERTY GUARANTOR CONSENTS TO THE EXECUTION AND DELIVERY BY BORROWER OF THIS
AMENDMENT AND RATIFIES AND CONFIRMS THE TERMS OF THE GUARANTY AND THE MEZZANINE
PROPERTY GUARANTY, AS APPLICABLE, WITH RESPECT TO THE INDEBTEDNESS NOW OR
HEREAFTER OUTSTANDING UNDER THE LOAN AGREEMENT AS AMENDED HEREBY AND ALL
PROMISSORY NOTES ISSUED THEREUNDER. NOTHING CONTAINED HEREIN TO THE CONTRARY
SHALL RELEASE, DISCHARGE, MODIFY, CHANGE OR AFFECT THE ORIGINAL LIABILITY OF
EITHER THE GUARANTOR OR THE MEZZANINE PROPERTY GUARANTOR UNDER THE GUARANTY OR
THE MEZZANINE PROPERTY GUARANTY, AS APPLICABLE.
6.
EFFECT OF AMENDMENT. EXCEPT AS SET FORTH EXPRESSLY HEREIN, ALL
TERMS OF THE LOAN AGREEMENT, AS AMENDED HEREBY, AND THE OTHER LOAN DOCUMENTS
SHALL BE AND REMAIN IN FULL FORCE AND EFFECT AND ARE HEREBY IN ALL RESPECT
RATIFIED AND CONFIRMED AND SHALL CONSTITUTE THE LEGAL, VALID, BINDING AND
ENFORCEABLE OBLIGATIONS OF BORROWER TO LENDER. THE EXECUTION, DELIVERY AND
EFFECTIVENESS OF THIS AMENDMENT SHALL NOT, EXCEPT AS EXPRESSLY PROVIDED HEREIN,
OPERATE AS A WAIVER OF ANY RIGHT, POWER OR REMEDY OF LENDER UNDER THE LOAN
AGREEMENT, NOR CONSTITUTE A WAIVER OF ANY PROVISION OF THE LOAN AGREEMENT. THIS
AMENDMENT SHALL CONSTITUTE A LOAN DOCUMENT FOR ALL PURPOSES OF THE LOAN
AGREEMENT. ALL REFERENCES TO THE "LOAN AGREEMENT" IN ANY LOAN DOCUMENT SHALL
MEAN THE LOAN AGREEMENT AS AMENDED HEREBY.
7.
GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF' THE STATE OF NEW YORK AND ALL
APPLICABLE FEDERAL LAWS OF THE UNITED STATES OF AMERICA.
8.
COSTS AND EXPENSES. BORROWER AGREES TO PAY ON DEMAND ALL COSTS
AND EXPENSES OF LENDER IN CONNECTION WITH THE PREPARATION, EXECUTION AND
DELIVERY OF THIS AMENDMENT, INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES
AND OUT-OF-POCKET EXPENSES OF OUTSIDE COUNSEL FOR LENDER WITH RESPECT THERETO.
9.
COUNTERPARTS. THIS AMENDMENT MAY BE EXECUTED BY ONE OR MORE OF
THE PARTIES HERETO IN ANY NUMBER OF SEPARATE COUNTERPARTS, EACH OF WHICH SHALL
BE DEEMED AN ORIGINAL
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AND ALL OF WHICH, TAKEN TOGETHER, SHALL BE DEEMED TO CONSTITUTE ONE AND THE SAME
INSTRUMENT. EACH PARTY MAY RELY UPON A FACSIMILE SIGNATURE OF EACH OTHER PARTY
HERETO AS IF IT WERE AN ORIGINAL.
10.
BINDING NATURE. THIS AMENDMENT SHALL BE BINDING UPON AND INURE TO
THE BENEFIT OF THE PARTIES HERETO, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
11.
ENTIRE UNDERSTANDING. THIS AMENDMENT SETS FORTH THE ENTIRE
UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE MATTERS SET FORTH HEREIN, AND
SHALL SUPERSEDE ANY PRIOR NEGOTIATIONS OR AGREEMENTS, WHETHER WRITTEN OR ORAL,
WITH RESPECT THERETO.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their duly authorized representatives, all as of the day and year
first above written.
BORROWER:
GMH COMMUNITIES, LP, a Delaware limited partnership