FORM OF THIS AGREEMENT (IF ANY), AND (II) ANY OTHER DOCUMENTS WHICH ARE REQUIRED
TO BE RECORDED BY THIS AGREEMENT OR BY ANY OTHER LOAN DOCUMENT (IF ANY);
1.4
REIMBURSEMENT TO ADMINISTRATIVE AGENT BY
BORROWER OF ADMINISTRATIVE AGENT'S COSTS AND EXPENSES INCURRED IN CONNECTION
WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING, WITHOUT
LIMITATION, TITLE INSURANCE COSTS, RECORDING FEES, ATTORNEYS' FEES, APPRAISAL,
ENGINEERS' AND INSPECTION FEES AND DOCUMENTATION COSTS AND CHARGES, WHETHER SUCH
SERVICES ARE FURNISHED BY ADMINISTRATIVE AGENT'S EMPLOYEES OR AGENTS OR BY
INDEPENDENT CONTRACTORS;
1.5
THE REPRESENTATIONS AND WARRANTIES CONTAINED
IN THIS AGREEMENT ARE TRUE AND CORRECT;
1
1.6
BORROWER SHALL HAVE PAID TO ADMINISTRATIVE
AGENT (I) FOR THE RATABLE BENEFIT OF LENDERS A MODIFICATION FEE EQUAL TO 0.15%
OF THE CREDIT LIMIT AND (II) FOR THE SOLE BENEFIT OF ADMINISTRATIVE AGENT,
CERTAIN OTHER FEES, EACH IN THE AMOUNT AND AT THE TIMES AS SET FORTH IN A
SEPARATE LETTER AGREEMENT BETWEEN BORROWER AND ADMINISTRATIVE AGENT DATED
FEBRUARY 27, 2009; AND
1.7
ALL PAYMENTS DUE AND OWING TO ADMINISTRATIVE
AGENT AND LENDERS UNDER THE LOAN DOCUMENTS HAVE BEEN PAID CURRENT AS OF THE
EFFECTIVE DATE OF THIS AGREEMENT.
2.
REPRESENTATIONS AND WARRANTIES.
BORROWER HEREBY REPRESENTS AND WARRANTS THAT NO DEFAULT, POTENTIAL 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 ARE TRUE AND CORRECT, WHICH REPRESENTATIONS AND WARRANTIES SHALL
SURVIVE EXECUTION OF THIS AGREEMENT.
3.
MODIFICATION OF LOAN DOCUMENTS. 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
INTEREST RATE. IN ORDER TO REFLECT THE
AGREEMENT OF THE PARTIES TO MODIFY THE DEFINITION OF "APPLICABLE LIBO RATE" AND
"VARIABLE RATE,", SUCH DEFINITIONS ARE AMENDED TO READ AS FOLLOWS:
"Applicable LIBO Rate" is the rate of interest, rounded upward to the nearest
whole multiple of one-hundredth of one percent (.01%), equal to the sum of:
(a) prior to May 1, 2009, one and one-half percent (1.50%), and from and after
May 1, 2009, five percent (5.00%) plus (b) the LIBO Rate, which rate is divided
by one (1.00) minus the Reserve Percentage:
Applicable LIBO Rate = 1.50% or 5.00% (as provided above)
+
LIBO Rate
(1 - Reserve Percentage)
"Variable Rate" - on any day means a floating rate of interest per annum equal
to the higher of (a) (i) prior to May 1, 2009, the Prime Rate then in effect and
(ii) from and after May 1, 2009, four percent (4.00%) plus the Prime Rate then
in effect or (b) (i) prior to May 1, 2009, the Federal Funds Rate then in effect
as announced by the Federal Reserve Bank of New York plus one and one-half
percent (1.50%) and (ii) from and after May 1, 2009, the Federal Funds Rate then
in effect