THE "RELEASED PARTIES"), BASED IN WHOLE OR IN PART ON FACTS,
WHETHER OR NOT KNOWN, UP TO AND INCLUDING THE DATE OF THIS LETTER.
THE
BORROWERS AND THE GUARANTORS HEREBY RATIFY, ADOPT AND CONFIRM THE FOREGOING
GENERAL RELEASE OF ALL CLAIMS AGAINST ANY RELEASED PARTY
13
WHICH ARE BASED IN WHOLE OR IN PART ON THE FACTS, WHETHER OR NOT NOW KNOWN OR
UNKNOWN, EXISTING ON OR PRIOR TO THE DATE OF THIS LETTER.
THE BORROWERS AND THE
GUARANTORS CONFIRM THAT EACH HAS CONSULTED WITH AND HAS BEEN REPRESENTED BY
COUNSEL AND EXPRESSLY DISCLAIMS ANY RELIANCE ON ANY REPRESENTATIONS, ACTS OR
OMISSIONS BY ANY OF THE RELEASED PARTIES AND HEREBY AGREES AND ACKNOWLEDGES THAT
THE VALIDITY AND EFFECTIVENESS OF THE RELEASES SET FORTH ABOVE DOES NOT DEPEND
IN ANY WAY ON ANY SUCH REPRESENTATION, ACTS AND/OR OMISSIONS OR THE ACCURACY,
COMPLETENESS OR VALIDITY THEREOF.
THE PROVISIONS OF THIS PARAGRAPH SHALL
SURVIVE THE TERMINATION OF THE CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS
AND PAYMENT IN FULL OF ALL OBLIGATIONS AND ALL OTHER AMOUNTS OWING THEREUNDER.
SECTION 21.
WITHDRAWAL OF MANDATORY PREPAYMENT NOTICE.
ON MARCH 23, 2009, THE
ADMINISTRATIVE AGENT SENT A NOTICE OF MANDATORY PREPAYMENT TO THE BORROWERS
PURSUANT TO SECTION 2.7(B)(II) OF THE CREDIT AGREEMENT ("MANDATORY PREPAYMENT
NOTICE") TO PROVIDE THE BORROWERS WITH WRITTEN NOTICE THAT, ON MARCH 23, 2009,
THE ADMINISTRATIVE AGENT HAD DETERMINED THAT A DEFICIT EXISTED IN THE AMOUNT OF
$26,214,285.87 AND THAT THE BORROWERS WERE REQUIRED, WITHIN ONE (1) BUSINESS DAY
FOLLOWING THE RECEIPT THEREOF BY THE BORROWERS OF SUCH WRITTEN NOTICE FROM THE
ADMINISTRATIVE AGENT, TO PREPAY A PORTION OF THE OUTSTANDING TERM LOANS BY AN
AMOUNT EQUAL TO AT LEAST $26,214,285.87.
UPON THE EXECUTION OF THIS AGREEMENT
AND THE SATISFACTION OF EACH OF THE CONDITIONS PRECEDENT SET FORTH IN SECTION 16
ABOVE, THE MANDATORY PREPAYMENT NOTICE IS HEREBY WITHDRAWN BY THE ADMINISTRATIVE
AGENT AND SHALL BE REGARDED FOR ALL PURPOSES BY THE ADMINISTRATIVE AGENT AND THE
CREDIT PARTIES AS IF IT HAD NEVER BEEN ISSUED.
SECTION 22.
CONDITIONS PRECEDENT.
THIS AMENDMENT AND ITS PROVISIONS SHALL
BECOME EFFECTIVE ON THE FIRST DATE ON WHICH ALL OF THE FOLLOWING CONDITIONS
PRECEDENT SHALL HAVE BEEN SATISFIED (THE "AMENDMENT EFFECTIVE DATE").
ON OR
BEFORE THE AMENDMENT EFFECTIVE DATE:
(A)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED THIS AMENDMENT,
EXECUTED AND DELIVERED BY A DULY AUTHORIZED OFFICER OF EACH OF THE BORROWERS,
THE GUARANTORS AND THE ADMINISTRATIVE AGENT;
(B)
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING;
(C)
THE BORROWERS SHALL PROVIDE THE ADMINISTRATIVE AGENT WITH WRITTEN
EVIDENCE ACCEPTABLE TO THE ADMINISTRATIVE AGENT, AS DETERMINED IN ITS SOLE AND
ABSOLUTE DISCRETION, THAT FINAL, WRITTEN COMPREHENSIVE SETTLEMENT AGREEMENTS
HAVE BEEN ENTERED INTO BY THE GUARANTORS IN CONNECTION WITH THEIR CURRENTLY
EXISTING CREDIT RELATIONSHIPS WITH KEY BANK AND JPMORGAN;
(D)
THE CREDIT PARTIES SHALL HAVE TRANSFERRED TO THE ADMINISTRATIVE
AGENT THE ADDITIONAL CASH COLLATERAL;
(E)
THE CREDIT PARTIES SHALL HAVE CAUSED (I) 885 THIRD MEZZ TO ENTER
INTO THE CDO LC GUARANTEE - 885 THIRD MEZZ,