31, 2009."
9.
SECTION 8.15 (DISTRIBUTIONS) IS HEREBY AMENDED AND RESTATED
IN ITS ENTIRETY AS FOLLOWS:
"Pay distributions to members of Borrower; provided, however, commencing with
the quarter ending March 31, 2010, Borrower shall be permitted to make
distributions to its Sole Member only to the extent the Borrower is (i) in
compliance with Section 7.29 and (ii) able to maintain a Debt Service Ratio for
the Facility of not less than 1.0 to 1.0 after payment of the Management Fees
and such distributions to its Sole Member."
10.
THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT
REPRESENTS A SETTLEMENT AGREEMENT BETWEEN THE PARTIES ONLY AS TO THE MATURITY OF
LOAN A AND THE WAIVER OF THE EVENT OF DEFAULT CAUSED BY THE BORROWER'S FAILURE
TO COMPLY WITH THE OCCUPANCY COVENANT FOR THE FISCAL QUARTER ENDING SEPTEMBER
30, 2009 AND THIS AGREEMENT DOES NOT REPRESENT A SETTLEMENT AGREEMENT BETWEEN
THE PARTIES AS TO ANY OTHER OBLIGATIONS OF BORROWER OR GUARANTOR UNDER LOAN A OR
PURSUANT TO THE FINANCING DOCUMENTS OR AS TO LOAN A OR LOAN B AS A WHOLE.
11.
BORROWER HEREBY ISSUES, RATIFIES AND CONFIRMS THE
REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED IN THE LOAN AGREEMENT, AS
AMENDED OR WAIVED HEREBY.
BORROWER AGREES THAT THIS AGREEMENT IS NOT INTENDED
TO AND SHALL NOT CAUSE A NOVATION WITH RESPECT TO ANY OR ALL OF THE OBLIGATIONS
OF BORROWER UNDER THE LOAN AGREEMENT.
EXCEPT AS EXPRESSLY MODIFIED HEREIN, THE
TERMS, PROVISIONS AND COVENANTS OF THE LOAN AGREEMENT ARE IN ALL OTHER RESPECTS
HEREBY RATIFIED AND CONFIRMED AND REMAIN IN FULL FORCE AND EFFECT.
12.
THE BORROWER SHALL PAY AT THE TIME THIS AGREEMENT IS EXECUTED
AND DELIVERED ALL FEES, COMMISSIONS, COSTS, CHARGES, TAXES AND OTHER EXPENSES
INCURRED BY THE AGENT AND ITS COUNSEL IN CONNECTION WITH THIS AGREEMENT,
INCLUDING, BUT NOT LIMITED TO, A COMMITMENT FEE IN THE AGGREGATE AMOUNT OF
SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS ($75,000.00) (THE "COMMITMENT FEE") FOR
LOAN A AND LOAN B, $18,750 OF WHICH COMMITMENT FEE IS DUE AND PAYABLE TO MB
FINANCIAL BANK, N.A AND $56,250 OF WHICH COMMITMENT FEE IS DUE AND PAYABLE
TO AGENT, AND THE REASONABLE FEES AND EXPENSES OF THE AGENT'S COUNSEL AND ALL
RECORDING FEES, TAXES AND CHARGES.
13.
NOTHING IN THIS AGREEMENT NOR ANY SUBSEQUENT CONDUCT, ACTIONS,
SETTLEMENTS OR ACCOMMODATIONS MADE BY LENDER SHALL CONSTITUTE A WAIVER,
AMENDMENT OR TERMINATION OF THE TERMS, CONDITIONS, RIGHTS OR REMEDIES THAT
LENDER HOLDS UNDER THE FINANCING DOCUMENTS OR IN REGARD TO ANY OTHER DIRECT OR
INDIRECT OBLIGATION OF BORROWER TO LENDER. NO FAILURE OR DELAY ON THE PART OF
LENDER IN THE EXERCISE OF ANY RIGHT, POWER OR REMEDY SHALL OPERATE AS A WAIVER
THEREOF OR OF ANY PAST, PRESENT OR FUTURE DEFAULTS OF BORROWER, NOR SHALL ANY
SINGLE OR PARTIAL EXERCISE OF ANY RIGHT, POWER OR REMEDY OR SUBSEQUENT CONDUCT,
ACTIONS OR ACCOMMODATIONS MADE BY LENDER PRECLUDE ANY OTHER OR FURTHER EXERCISE
THEREOF, OR THE EXERCISE OF ANY OTHER RIGHT, POWER OR REMEDY.
LENDER EXPRESSLY
RESERVES AND PRESERVES ALL