FIRST AMENDMENT TO AMENDED AND
RESTATED GUARANTY
THIS FIRST AMENDMENT (this “Amendment”) between David
Lichtenstein (the “Guarantor”) and Citicorp USA, Inc.
(the “Lender”), is made as of October 31,
2008.
WHEREAS , PGRT ESH, Inc. (the “Borrower”) is
a party to that certain Amended and Restated Loan Agreement dated
as of June 6, 2008 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the
“Loan Agreement”) with the Lender, pursuant to which
the Lender agreed, among other things, to make a loan to the
Borrower, subject to the terms and conditions set forth in the Loan
Agreement;
WHEREAS, the Guarantor has guaranteed the liabilities and
obligations of the Borrower under the terms and conditions of that
certain Amended and Restated Guaranty dated June 6, 2008 (as
amended, amended and restated, supplemented or otherwise modified
from time to time, the “Guaranty”; capitalized terms
used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Guaranty);
WHEREAS , the Loan Parties (as defined in the Loan
Agreement) have requested and the Lender has agreed that certain
amendments be made to Loan Agreement in accordance with the terms
of that certain First Amendment to Loan Agreement dated as of
October 31, 2008 among the Loan Parties (as defined in the
Loan Agreement) and the Lender (the “First Amendment to Loan
Agreement”); and
WHEREAS , it is a condition to the effectiveness of the
First Amendment to Loan Agreement that the Guarantor shall have
executed and delivered this Amendment.
NOW, THEREFORE , for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. Amendments to Guaranty . Effective as of the date hereof, the Guarantor
and the Lender hereby agree the Guaranty is amended as
follows:
(a) Paragraph IV is hereby amended as
follows:
(i) The first sentence of Paragraph IV
is amended by adding “in addition to the covenants set forth
in Schedule 1 hereto,” after “the Undersigned
will”.
(ii) Subparagraph (c)(B) is amended by
adding “subject to the covenants set forth in Schedule
1,” before “$50,000,000”.
(iii) Subparagraph (o) is amended by
deleting “(but after the aggregate outstanding principal
amount of the Loan is equal to or less than $60,000,000, if such a
sale or refinancing occurs, the Undersigned shall cause the
Borrower to prepay the Loan by an amount equal to 50% of the Net
Cash Proceeds of such sale or refinancing)”.
(b) Exhibit A hereto is added as
Schedule 1 to the Guaranty.
SECTION 2. Miscellaneous . (a) Upon the effectiveness of this
Amendment, on and after the date hereof, each reference in the
Guaranty to “this Guaranty,” “hereunder,”
“hereof,” “herein” and words of like
import, and such words or words of like import in each reference in
the other Loan Documents, shall mean and be a reference to the
Guaranty as amended hereby.
(b) This Amendment shall apply only to the
matter specifically referred to above and shall not be deemed to
constitute a waiver or modification by the parties hereto of any
other provision of the Guaranty or any other Loan Document or with
respect to any other matter. Except as expressly set forth above,
the Guaranty and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(c) This Amendment is governed by paragraph
XI of the Guaranty and shall be deemed to be a Loan Document. This
Amendment may be executed in counterparts, each of which shall
constitute an original, but both of which taken together shall
constitute one and the same instru
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