1
EXHIBIT 10.2
SECOND AMENDMENT TO MORTGAGE
LOAN NOS. 157774 AND 157774-01
THIS SECOND AMENDMENT TO MORTGAGE (this "Amendment") is made and
entered into as of the _______ day of August, 2000 by RAMCO-XXXXXXXXXX
PROPERTIES, L.P., a Delaware limited partnership (the "Mortgagor"), having an
address at 00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000,
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY, an Indiana corporation ("Lincoln"),
Individually, and as Agent for FIRST PENN-PACIFIC LIFE INSURANCE COMPANY, an
Indiana corporation ("Participant #1"), LINCOLN NATIONAL HEALTH & CASUALTY
INSURANCE COMPANY, an Indiana corporation ("Participant #2"), and LINCOLN
NATIONAL REASSURANCE COMPANY, an Indiana corporation ("Participant #3")
(Participant #1, Participant #2 and Participant #3 are collectively referred to
herein as the "Participants"), having its home office in care of Lincoln
Investment Management, Inc., 000 X. Xxxxx Xxxxxx, X.X. Xxx 0000, Xxxx Xxxxx,
Xxxxxxx 00000 (Lincoln, Individually and in its capacity as Agent for the
Participants, is collectively referred to herein as "Mortgagee"), and XXXXXXX
XXXX, a single man ("Owner"), having an address of 00000 Xxxxx Xxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx, with reference to the following facts:
RECITALS
A. Mortgagor and Owner executed that certain Mortgage and
Security Agreement dated May 1, 1996 and recorded in Liber 16282, Page 107,
Oakland County Records, in favor of Lincoln (the "Prior West Oaks Mortgage"), to
secure indebtedness evidenced by that certain Note dated May 1, 1996 made
payable to Lincoln in the original principal amount of $4,346,778.76 (the "Prior
West Oaks Note"), and which Prior West Oaks Mortgage encumbers certain real
property more particularly described in attached EXHIBIT A (the "Premises").
Mortgagor has a leasehold estate in the Premises and the Owner is the fee simple
owner of the Premises, all as more particularly set forth in the Prior West Oaks
Mortgage.
B. Concurrently therewith, Mortgagor executed certain Mortgage
and Security Agreements each dated May 1, 1996 and recorded in Liber 28821, Page
408, Xxxxx County Records (New Towne Plaza), Liber 16276, Page 213, Oakland
County Records (Tel-Twelve Mall), Liber 16276, Page 183, Oakland County Records
(Southfield Plaza), Liber 16276, Page 152, Oakland County Records (Orion Plaza),
Master Liber 3303, Page 000, Xxxxxxx Xxxxxx Xxxxxxx (Xxxxxxxxx Xxxxxxx), Liber
07016, Page 540, Macomb County Records (Clinton Consumer Mall), Liber 07016,
Page 621, Macomb County Records (Roseville Plaza), Liber 1519, Page 625, Xxxxxxx
County Records (Xxxxxxx Crossing Mall), and Liber 1519, Page 627, Xxxxxxx County
Records (Xxxxxxx Crossing Gas Station), all in favor of Lincoln (collectively,
the "Prior Portfolio Mortgages") to secure the indebtedness evidenced by that
certain Note dated May 1, 1996, made payable to Lincoln in the amount of
$77,585,524.73 (the "Prior Portfolio Note") and which Prior Portfolio Mortgages
encumber certain real property as more particularly set forth therein.
C. Mortgagor executed that certain Mortgage dated December 17, 1997
and recorded in Liber 1557, Page 1288, Xxxxxxx County Records in favor of
Lincoln (the "Xxxxxxx West Mortgage"), to secure the indebtedness evidenced by
that certain Note dated December 17, 1997 in the original principal amount of
$8,500,000.00 (the "Prior Xxxxxxx West Note") and which Xxxxxxx West Mortgage
encumbers certain real property more particularly set forth therein.
2
D. As an inducement for making the loan to Mortgagor evidenced by
the Prior Xxxxxxx West Note, (i) Mortgagor executed Amendments to each of the
Prior Portfolio Mortgages cross-collateralizing and cross-defaulting the Prior
Portfolio Mortgages to the Xxxxxxx West Mortgage (the Prior Portfolio Mortgages,
as so amended, are collectively referred to herein as the "Portfolio Mortgages")
and (ii) Mortgagor and Owner executed an Amendment to the Prior West Oaks
Mortgage dated December 17, 1997 and recorded in Liber 17932, Page 092, Oakland
County Records (the "West Oaks Mortgage Amendment"), cross-collateralizing and
cross-defaulting the Prior West Oaks Mortgage to the Xxxxxxx West Mortgage and
cross-collateralizing the Prior West Oaks Mortgage to the Prior Portfolio
Mortgages (the Prior West Oaks Mortgage, as so amended, is referred to herein as
the "West Oaks Mortgage).
E. Concurrently herewith, Mortgagee has agreed to lend to
Mortgagor pursuant to three loans the aggregate sum of $25,000,000.00
(collectively, the "New Loan"), to be evidenced by eight separate promissory
notes in the aggregate amount of $25,000,000.00 as more particularly described
below (collectively, the "New Notes").
F. In connection with the consummation of the New Loan, the
Portfolio Mortgages and the Xxxxxxx West Mortgage have been amended, restated
and consolidated as an Amended, Restated and Consolidated Mortgage of even date
herewith.
G. Mortgagor and Lincoln desire to amend the West Oaks Mortgage
to, among other things, additionally secure the New Loan and to increase the
amount of Lincoln's "Claim to the Loan" as defined in the West Oaks Mortgage
Amendment, all as more particularly set forth herein.
H. Capitalized terms used herein but not defined herein shall have
the same meaning as set forth in the West Oaks Mortgage.
NOW, THEREFORE, in consideration of the premises, and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby agree as
follows:
1. Definitions. The definition of "Loan" in the West Oaks Mortgage
is hereby amended to mean, collectively, the loans evidenced by the Prior
Portfolio Note, the Prior West Oaks Note, the Prior Xxxxxxx West Note, and the
New Notes. The definition of "Note" in the West Oaks Mortgage is hereby amended
to mean, collectively, the Prior Portfolio Note, the Prior West Oaks Note, the
Prior Xxxxxxx West Note, and the New Notes and any notes issued in exchange
therefor or in replacement thereof and any modifications thereto. The definition
of "Default Rate" in the West Oaks Mortgage is hereby amended to mean, except as
provided below, 12.31% per annum; provided, however, that in those instances in
the West Oaks Mortgage where the term "Default Rate" is used with respect to
principal, interest or other sums under the Note, the "Default Rate" shall mean
the applicable default interest rates provided for under the various promissory
notes comprising the Note. The definition of "Mortgagee" in the West Oaks
Mortgage is hereby amended to mean The Lincoln National Life Insurance Company,
Individually, and as Agent for the Participants. The definition of "Loan
Agreement" in the West Oaks Mortgage is hereby amended to mean, collectively,
that certain Loan Agreement dated May 1, 1996 pertaining to the Prior Portfolio
Note, that certain Loan Agreement dated May 1, 1996 pertaining to the Prior West
Oaks Note, and that certain Loan Agreement dated December 17, 1997 pertaining to
the Prior Xxxxxxx West Note, as each has been amended pursuant to that certain
Amendment to Loan Documents of even date herewith among Borrower, Lender and
Ramco-Xxxxxxxxxx Properties Trust, a Maryland real estate investment trust.
2. Cross-Collateralization and Cross-Default. Paragraph 1 of the
West Oaks Mortgage Amendment is hereby amended and restated in its entirety to
read as follows:
"1. Cross-Collateralization and Cross-Default. The West
Oaks Mortgage shall be amended to include the following provision:
3
This Mortgage also secures (a) that certain loan in the
original principal amount of $8,500,000.00, evidenced by a
Note dated December 17, 1997 executed by Mortgagor and payable
to the order of The Lincoln National Life Insurance Company
("Lincoln") (the "158186 Note"), (b) that certain loan in the
original principal amount of $77,585,524.73 evidenced by a
Note dated May 1, 1996 executed by Mortgagor and payable to
the order of Lincoln (the "157670 Note"), and (c) three loans
in the aggregate original principal amount of $25,000,000.00
evidenced by (i) a Note of even date herewith in the original
principal amount of $16,081,090.00 executed by Mortgagor and
payable to the order of Lincoln, (ii) a Note of even date
herewith in the original principal amount of $2,455,128.00
executed by Mortgagor and payable to the order of First
Penn-Pacific Life Insurance Company ("Participant #1"), (iii)
a Note of even date herewith in the original principal amount
of $245,513.00 executed by Mortgagor and payable to the order
of Lincoln National Health & Casualty Insurance Company
("Participant #2"), (iv) a Note of even date herewith in the
original principal amount of $368,269.00 executed by Mortgagor
in favor of Lincoln National Reassurance Company ("Participant
#3") (Participant #1, Participant #2, and Participant #3 are
collectively referred to herein as the "Participants"), (v) a
Note of even date herewith in the original principal amount of
$1,279,412.00 executed by Mortgagor and payable to the order
of Lincoln, (vi) a Note of even date herewith in the original
principal amount of $170,588.00 executed by Mortgagor and
payable to the order of Participant #2, (vii) a Note of even
date herewith in the original principal amount of
$2,386,270.00 executed by Mortgagor and payable to the order
of Lincoln, and (viii) a Note of even date herewith in the
original principal amount of $2,013,730.00 executed by
Mortgagor and payable to the order of Participant #1 (the
Notes described in (c)(i) through (viii) above are
collectively referred to herein as the "New Notes", the Notes
described in (c)(vii) and (viii) above are collectively
referred to herein as the "New West Oaks Notes", the Notes
described in (a) and (c)(v) and (vi) above are collectively
referred to herein as the "158186 Notes" and the Notes
described in (b) and (c)(i) through (iv) above are
collectively referred to herein as the "157670 Notes), the
final payments of which are due and payable on January 10,
2006 and all of which are secured by an Amended, Restated and
Consolidated Mortgage of even date herewith (the "157670 and
158186 Mortgage") which encumbers certain real property known
as (A) the Xxxxxxx West Shopping Center (the "158186 Tract")
and (B) the New Towne Plaza, Tel-Twelve Mall, Southfield
Plaza, Orion Plaza, Xxxxxxxxx Commons, Clinton Consumer Mall,
Roseville Plaza, Xxxxxxx Crossing Mall, and Xxxxxxx Crossing
Gas Station (collectively, the "157670 Tracts"). All sums
evidenced by the 157670 Note, 158186 Note and the New Notes or
secured by the 157670 and 158186 Mortgage shall be a part of
the Secured Indebtedness hereunder. Further, any Default, as
defined in the 157670 and 158186 Mortgage, shall also be a
Default under this Mortgage."
3. Release. Paragraph 2 of the West Oaks Mortgage Amendment is
hereby amended and restated in its entirety to read as follows:
"2. Release. The West Oaks Mortgage shall be
amended to include the following provision:
Commencing February 10, 2001, the Premises encumbered
by this Mortgage shall be released from the lien hereof (so
long as no Default or Default Condition has occurred) upon
prepayment of all principal and accrued interest under that
certain Note dated May 1, 1996 in the original principal
amount of $4,346,778.46 executed by Mortgagor and payable to
the order of Lincoln and all principal and accrued interest
under the New West Oaks Notes (collectively, the "West Oaks
Notes"). Such prepayment shall consist of the following: (A)
payment of all principal and interest accrued under the West
Oaks Notes; plus (B) any and all prepayment premiums due on
the principal being repaid, calculated as provided in the West
Oaks Notes; plus at Mortgagee's option (C) an additional sum
equal to twenty-five percent (25%) of the principal being
repaid. The additional sum described in (C) hereunder shall be
applied at
3
4
par by Mortgagee to reduce, on a pro rata basis, the
outstanding principal balances under the 157670 Notes and
Mortgagee may allocate such principal reduction among the
various 157670 Tracts, in Mortgagee's sole discretion. No
prepayment premium shall be payable with respect to any such
additional amount described in Item (C). In the event of a
prepayment of the West Oaks Notes, Mortgagee may, at its
option, revoke the Tax and Insurance Escrow Waiver Letter of
even date executed by Mortgagee for the benefit of Mortgagor
(the "Waiver Letter"); provided, however, if Mortgagee elects
to receive the additional amount described under Item (C) in
connection with the release and discharge of this Mortgage,
then Mortgagee agrees not to revoke the Waiver Letter.
Notwithstanding anything to the contrary herein, in the event
the Owner shall be the party to prepay the outstanding
principal and interest accrued under the West Oaks Notes, then
the Owner shall not be subject to Item (C) above, such
prepayment by the Owner shall consist only of payment of
principal and interest accrued under the West Oaks Notes and
any prepayment premium due on the principal being repaid,
calculated as provided in the West Oaks Notes. Upon such
prepayment by the Owner and so long as no Default or Default
Condition has occurred, the Premises shall be released from
the lien hereof."
4. Foreclosure. Paragraph 3 of the West Oaks Mortgage Amendment
is hereby amended and restated in its entirety to read as follows:
"3. Foreclosure. The West Oaks Mortgage shall be
amended to include the following provision:
Notwithstanding anything in this Mortgage to the contrary, in
the event of foreclosure of this Mortgage, the Premises shall
be sold as a separate parcel (separate and distinct from the
157670 Tracts and the 158186 Tract) such that the price to
redeem the Premises shall not exceed Mortgagee's "Claim to the
Loan" as of the date of such foreclosure sale. "Claim to the
Loan" shall be defined herein as the aggregate outstanding
principal balance due under the West Oaks Notes plus interest
due under the West Oaks Notes from the date of sale and any
advances for taxes and/or insurance relating to the Premises
during the redemption period as provided for under MCL Section
600.3240."
5. Permitted Transfers. The West Oaks Mortgage is hereby amended
to provide that in the event of a transfer pursuant to Section B2. of EXHIBIT B
of the West Oaks Mortgage, the principal reduction required by such Section
shall be applied on a pro rata basis to the outstanding principal balances of
the West Oaks Notes.
6. Leases in the Normal Course of Business. Section B4. of
EXHIBIT B of the West Oaks Mortgage is hereby amended and restated in its
entirety to read as follows:
"B4. Leases in the Normal Course of Business. Notwithstanding
anything to the contrary contained in Article 2 and/or Article 3 of
this Mortgage or any of the Collateral Loan Documents, so long as
Mortgagor is not in Default, Mortgagor shall have the right to enter
into new leases of less than 5,000 square feet, terminate, modify and
otherwise deal with leases of less than 5,000 square feet and the
tenants under said leases in its normal course of business without
obtaining Mortgagee's prior written approval of any such action;
provided that entering into, modifying or terminating leases over 5,000
square feet shall be subject to Mortgagee's consent, not to be
unreasonably withheld, and such consent shall be deemed granted if
Mortgagee does not object to a proposed lease or a termination or
modification of an existing lease within ten (10) business days
following submission to Mortgagee of an execution copy of such lease or
modification or a detailed written description of such proposed
termination.
7. Participation. The loans secured by the West Oaks Mortgage, as
amended hereby, are represented by the Prior West Oaks Note, Prior Portfolio
Note, Prior Xxxxxxx West Note, and the New Notes payable to the order of Lincoln
(collectively, the "Retainage Notes") and the New Notes payable to the order of
the Participants (collectively, the "Participant Notes"). The relationship
between Lincoln and
4
5
the Participants is governed by a separate participation agreement or
agreements. Pursuant to such agreement(s), Lincoln has the authority to exercise
all rights of the Mortgagee under the West Oaks Mortgage, as amended hereby, all
rights of the Holder under the Retainage Notes and Participant Notes and all
rights of the Lender under the Collateral Loan Documents, as defined in the West
Oaks Mortgage, as amended hereby. Lincoln shall be conclusively deemed to have
the authority to take all actions undertaken by Lincoln with respect to the
foregoing instruments, and neither Mortgagor nor Owner shall have any duty,
obligation or right to inquire as to the authority of Lincoln to act in such
capacity.
8. Owner's Consent. Owner hereby acknowledges and consents to the
terms of this Second Amendment to Mortgage; provided that all of the rights
granted to Owner under Sections 6.19(a), (b), (d), (e) and (f) of the West Oaks
Mortgage are hereby confirmed and shall continue in full force and effect.
9. Ratification. Except as set forth herein, the West Oaks
Mortgage remains unmodified and in full force and effect.
10. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Mortgagor, Lincoln and Owner have executed this
Second Amendment to Mortgage as of the date first above written.
IN THE PRESENCE OF: MORTGAGOR:
RAMCO-XXXXXXXXXX PROPERTIES, L.P.,
a Delaware limited partnership
By: RAMCO-XXXXXXXXXX PROPERTIES
TRUST, a Maryland real estate
investment trust, its general
partner
___________________________________ By:____________________________
Name: Xxxxxxx X. Xxxxx,
its Chief Financial Officer
___________________________________
Name:
5
6
LINCOLN:
THE LINCOLN NATIONAL LIFE INSURANCE
COMPANY, an Indiana corporation,
Individually, and as Agent for the
Participants
___________________________________ By:_________________________________
Name:
___________________________________ Its:________________________________
Name:
OWNER:
___________________________________ _____________________________________
Name: Xxxxxxx Xxxx
___________________________________
Name:
STATE OF _________ )
) SS.
COUNTY OF ________ )
The foregoing instrument was acknowledged before me this ______ day of
August, 2000 by Xxxxxxx X. Xxxxx, the Chief Financial Officer of
RAMCO-XXXXXXXXXX PROPERTIES TRUST, a Maryland real estate investment trust, the
general partner RAMCO-XXXXXXXXXX PROPERTIES, L.P., a Delaware limited
partnership, on behalf of the limited partnership.
_____________________________________
Notary Public
________________ County, ____________
My commission expires:_______________
6
7
STATE OF INDIANA )
) SS.
COUNTY OF ________ )
The foregoing instrument was acknowledged before me this ______ day of
August, 2000 by ________________________, the _______________ of THE LINCOLN
NATIONAL LIFE INSURANCE COMPANY, an Indiana corporation, on behalf of the
corporation.
_____________________________________
Notary Public
________________ County, Indiana
My commission expires:_______________
STATE OF MICHIGAN )
) SS.
COUNTY OF ________ )
The foregoing instrument was acknowledged before me this ______ day of
August, 2000 by XXXXXXX XXXX, a single man.
_____________________________________
Notary Public
________________ County, Michigan
My commission expires:_______________
Drafted by and when recorded return to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxx Xxxx PLC
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
7
8
EXHIBIT A
THE PREMISES
8