THAT CERTAIN ENDORSEMENT TO TITLE POLICY NO. C100333-2-A
DATED FEBRUARY 16, 2005, ISSUED BY FIRST AMERICAN TITLE INSURANCE COMPANY IN
FAVOR OF THE AGENT, FOR THE BENEFIT OF THE LENDERS, AND ATTACHED AS EXHIBIT
4(B)(II) HERETO, DO NOT IMPAIR OR OTHERWISE ADVERSELY EFFECT THE LIENS GRANTED
TO AGENT, FOR THE BENEFIT OF THE LENDERS, UNDER AND PURSUANT TO THE MORTGAGE, OR
IN THE ALTERNATIVE, IF BORROWER IS UNABLE TO DO SO, THEN BORROWER SHALL CAUSE
SUCH EXCEPTIONS TO BE TERMINATED ON OR BEFORE SUCH DATE; (C) ON OR BEFORE THE
DATE THAT IS FIVE (5) BUSINESS DAYS AFTER AGENT'S DELIVERY OF PROPOSED FILINGS,
BORROWER SHALL EXECUTE AND/OR PERMIT AGENT TO EXECUTE, AT BORROWER'S EXPENSE,
UPDATED PATENT, TRADEMARK AND COPYRIGHT OFFICE FILINGS AND/OR OTHER LIEN
FILINGS, AS APPLICABLE, WITH RESPECT TO THE COLLATERAL, WHICH FILINGS SHALL BE
IN FORM AND SUBSTANCE SATISFACTORY TO AGENT IN ITS SOLE DISCRETION; (D) ON OR
BEFORE THE DATE THAT IS TEN (10) BUSINESS DAYS AFTER THE BORROWER'S DELIVERY TO
AGENT OF THE AMENDED AND RESTATED DISCLOSURE SCHEDULES, BORROWER SHALL TAKE ANY
AND ALL ACTION(S) NECESSARY TO CAUSE BORROWER'S COMPLIANCE WITH THE LOAN
AGREEMENT AND OTHER LOAN DOCUMENTS TO THE EXTENT THAT ANY NONCOMPLIANCE ARISES
BASED ON THE INFORMATION SET FORTH ON SUCH AMENDED AND RESTATED DISCLOSURE
SCHEDULES; AND (E) ON OR BEFORE THE DATE THAT IS THIRTY (30) DAYS AFTER AGENT'S
REQUEST, FULLY EXECUTED LANDLORD WAIVERS AND CONSENTS, AS REQUIRED BY AND IN
ACCORDANCE WITH SECTION 6.1(D) OF THE LOAN AGREEMENT, EXCEPT FOR ANY LOCATION AS
TO WHICH A FULLY EXECUTED LANDLORD WAIVER AND CONSENT HAS ALREADY BEEN PROVIDED
TO AGENT.
8
SECTION 5.
ADDITIONAL EVENTS OF DEFAULT.
IN ADDITION TO AND WITHOUT IN ANY WAY
LIMITING OR SUBSTITUTING FOR THE EVENTS OF DEFAULT OUTLINED IN THE LOAN
AGREEMENT AND THE OTHER LOAN DOCUMENTS, BORROWER'S FAILURE TO TIMELY AND FULLY
COMPLY WITH ANY COVENANT OR AGREEMENT SET FORTH IN THIS AMENDMENT, WITHOUT ANY
NOTICE AND GRACE AND/OR CURE PERIODS (NOTWITHSTANDING ANY SUCH NOTICE AND GRACE
AND/OR CURE PERIODS IN THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS, ALL OF
WHICH ARE EXPRESSLY WAIVED WITH RESPECT TO PROVISIONS OF THIS AMENDMENT AND THE
PROVISIONS OF THE LOAN AGREEMENT THAT ARE AMENDED HEREBY, OTHER THAN WITH
RESPECT TO SECTION 6.1(J) TO THE LOAN AGREEMENT, AS ADDED BY THIS AMENDMENT, FOR
WHICH THERE SHALL BE A FIVE (5) DAY GRACE PERIOD), SHALL CONSTITUTE AN EVENT OF
DEFAULT.
NOTHING CONTAINED IN THIS SECTION 5 SHALL BE DEEMED TO CONSTITUTE AN
AMENDMENT OR MODIFICATION OF THE GRACE AND/OR CURE PERIODS SET FORTH IN THE
OTHER LOAN DOCUMENTS INSOFAR AS SUCH GRACE AND/OR CURE PERIODS RELATE SOLELY TO
PROVISIONS SET FORTH IN THE OTHER LOAN DOCUMENTS (AS OPPOSED TO PROVISIONS SET
FORTH IN THIS AMENDMENT AND THE PROVISIONS OF THE LOAN AGREEMENT THAT ARE
AMENDED HEREBY).
SECTION 6.
CONSENT TO MODIFICATIONS OF AGREEMENTS WITH SUBORDINATED LENDER.
AS
OF THE EFFECTIVE DATE, AGENT AND LENDERS HEREBY CONSENT TO BORROWER'S EXECUTION
AND DELIVERY OF THE SEVENTH NOTE PURCHASE AGREEMENT AMENDMENT.
SECTION 7.