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; AND
1
1.6
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, 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
SECTION 2.14 OF THE LOAN AGREEMENT IS
MODIFIED TO PROVIDE THAT THE TERM "EXTENSION DATE," AS USED THEREIN WITH
REFERENCE TO THE FIRST EXTENSION OF THE LOAN, SHALL MEAN FEBRUARY 13, 2009. THE
TERM "EXTENSION DATE," AS USED IN THE LOAN AGREEMENT WITH REFERENCE TO ALL
SUBSEQUENT EXTENSIONS OF THE LOAN, SHALL MEAN THE DATE WHICH IS ONE (1) YEAR
PRIOR TO THE THEN SCHEDULED MATURITY DATE (AS DEFINED IN THE LOAN AGREEMENT).
4.
FORMATION AND ORGANIZATIONAL DOCUMENTS.
BORROWER HAS PREVIOUSLY DELIVERED TO ADMINISTRATIVE AGENT ALL OF THE RELEVANT
FORMATION AND ORGANIZATIONAL DOCUMENTS OF BORROWER, OF THE PARTNERS OR JOINT
VENTURERS OF BORROWER (IF ANY), AND OF ALL GUARANTORS OF THE LOAN (IF ANY), AND
ALL SUCH FORMATION DOCUMENTS REMAIN IN FULL FORCE AND EFFECT AND HAVE NOT BEEN
AMENDED OR MODIFIED SINCE THEY WERE DELIVERED TO ADMINISTRATIVE AGENT. BORROWER
HEREBY CERTIFIES THAT: (I) THE ABOVE DOCUMENTS ARE ALL OF THE RELEVANT FORMATION
AND ORGANIZATIONAL DOCUMENTS OF BORROWER; (II) THEY REMAIN IN FULL FORCE AND
EFFECT; AND (III) THEY HAVE NOT BEEN AMENDED OR MODIFIED SINCE THEY WERE
PREVIOUSLY DELIVERED TO ADMINISTRATIVE AGENT.
5.
NON-IMPAIRMENT. EXCEPT AS EXPRESSLY
PROVIDED HEREIN, NOTHING IN THIS AGREEMENT SHALL ALTER OR AFFECT ANY PROVISION,
CONDITION, OR COVENANT CONTAINED IN THE NOTE OR OTHER LOAN DOCUMENT OR AFFECT OR
IMPAIR ANY RIGHTS, POWERS, OR REMEDIES OF ADMINISTRATIVE AGENT OR LENDERS, IT
BEING THE INTENT OF THE PARTIES HERETO THAT THE PROVISIONS OF THE NOTE AND OTHER
LOAN DOCUMENTS SHALL CONTINUE IN FULL FORCE AND EFFECT EXCEPT AS EXPRESSLY
MODIFIED HEREBY.
6.
MISCELLANEOUS. THE HEADINGS USED IN
THIS AGREEMENT ARE FOR CONVENIENCE ONLY AND SHALL BE DISREGARDED IN INTERPRETING
THE SUBSTANTIVE PROVISIONS OF THIS AGREEMENT. ALL CAPITALIZED TERMS USED HEREIN,