AMENDMENT HAS BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE
AND OTHER ACTION AND DO NOT AND WILL NOT REQUIRE ANY REGISTRATION WITH, CONSENT
OR APPROVAL OF, NOTICE TO OR ACTION BY, ANY PERSON (INCLUDING ANY GOVERNMENTAL
AUTHORITY) IN ORDER TO BE EFFECTIVE AND ENFORCEABLE.
THIS AMENDMENT AND THE
CREDIT AGREEMENT EACH CONSTITUTE THE LEGAL, VALID AND BINDING OBLIGATION OF
BORROWER AND EACH OF THE GUARANTORS WHICH ARE PARTIES THERETO, RESPECTIVELY,
ENFORCEABLE AGAINST THEM IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, WITHOUT
DEFENSE, COUNTERCLAIM OR OFFSET.
(C)
NONE OF THE ORGANIZATIONAL DOCUMENTS, INCLUDING, BUT NOT LIMITED
TO, PARTNERSHIP AGREEMENTS, OPERATING AGREEMENTS, LIMITED LIABILITY COMPANY
AGREEMENTS AND BY-LAWS, OF (1) BORROWER AND EACH OF THE GUARANTORS (OTHER THAN
GREEN 317 MADISON LLC ("GREEN 317")) HAS BEEN AMENDED OR MODIFIED SINCE
MARCH 17, 2003, EXCEPT THAT (I) THE ARTICLES OF INCORPORATION OF THE COMPANY
HAVE BEEN SUPPLEMENTED BY ARTICLES SUPPLEMENTARY ESTABLISHING AND FIXING THE
RIGHTS AND PREFERENCES OF A SERIES OF SHARES OF PREFERRED STOCK DATED
DECEMBER 9, 2003 (THE "ARTICLES SUPPLEMENTARY") AND (II) THE PARTNERSHIP
AGREEMENT OF BORROWER HAS BEEN AMENDED BY THIRD AMENDMENT TO THE FIRST AMENDED
AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF BORROWER DATED
4
DECEMBER 12, 2003 (THE "THIRD AMENDMENT") AND (2) GREEN 317 HAS BEEN AMENDED OR
MODIFIED SINCE SEPTEMBER 23, 2003.
(D)
BORROWER AND EACH OF THE GUARANTORS ARE ENTERING INTO THIS
AMENDMENT ON THE BASIS OF ITS OWN INVESTIGATION AND FOR ITS OWN REASONS, WITHOUT
RELIANCE UPON THE AGENT, THE LENDERS, ANY OF THEIR RESPECTIVE AFFILIATES OR ANY
OTHER PERSON AND HEREBY ACKNOWLEDGE AND AGREE THAT THEY ARE NOT AWARE (I) OF ANY
CLAIM OR CAUSE OF ACTION AGAINST THE AGENT, ANY LENDER OR ANY OF THEIR
RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES, ARISING FROM OR
IN CONNECTION WITH THE LOAN DOCUMENTS OR OTHERWISE AND (II) THAT THERE ARE ANY
CLAIMS, DEMANDS, OFFSETS OR DEFENSES AT LAW OR IN EQUITY THAT WOULD DEFEAT OR
DIMINISH THE RIGHTS AND REMEDIES OF AGENT OR THE LENDERS UNDER THE LOAN
DOCUMENTS.
(E)
THE LIST OF UNCONSOLIDATED ENTITIES SET FORTH ON SCHEDULE 1.3 OF
THE CREDIT AGREEMENT IS TRUE, CORRECT AND COMPLETE AS OF THE DATE HEREOF.
6.
EFFECTIVE DATE.
THIS AMENDMENT WILL BECOME EFFECTIVE AS OF
DECEMBER 16, 2003
PROVIDED THAT EACH OF THE FOLLOWING CONDITIONS PRECEDENT IS
SATISFIED BEFORE THE CLOSE OF BUSINESS ON SUCH DATE (THE "EFFECTIVE DATE"):
(A)
THE AGENT HAS RECEIVED FROM BORROWER, EACH OF THE GUARANTORS AND
EACH OF THE REQUISITE LENDERS A DULY EXECUTED ORIGINAL (OR, IF ELECTED BY THE
AGENT, AN EXECUTED FACSIMILE COPY) OF THIS AMENDMENT BY NO LATER THAN 9:00 AM
(NEW YORK TIME) ON
DECEMBER 16, 2003.
(B)
THE AGENT HAS RECEIVED FROM (I) BORROWER AND EACH OF THE
GUARANTORS A COPY OF A RESOLUTION PASSED BY THE BOARD OF DIRECTORS OF SUCH
CORPORATION (OR OTHER EVIDENCE SATISFACTORY TO THE AGENT IN THE CASE OF SUCH A
PERSON WHICH IS NOT A CORPORATION), CERTIFIED BY THE SECRETARY OR AN ASSISTANT
SECRETARY OF SUCH CORPORATION (OR SUCH OTHER