FOURTH MODIFICATION OF MASTER CONSTRUCTION LOAN AGREEMENT
THIS FOURTH MODIFICATION, dated and effective as of December 30th, 1998, is
made and entered into by and between XXXXXXXX XXXX BTS, INC., a Delaware
corporation having a notice address of 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000-0000 ("Developer"), and KEYBANK NATIONAL ASSOCIATION, a
national banking association having a notice address of 00 Xxxx Xxxxxx Xxxxxx,
0xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 ("Bank").
RECITALS:
A. Developer and Bank entered into that certain Master Construction Loan
Agreement, dated August 4, 1997, as modified by that certain First Modification
of Master Construction Loan Agreement between Developer and Bank, dated
September 15, 1997, and as modified by that certain Second Modification of
Master Construction Loan Agreement between Developer and Bank, dated May 12,
1998, and as modified by that certain Third Modification of Master Construction
Loan Agreement between Developer and Bank, dated June 9, 1998 (collectively, the
"Loan Agreement").
B. The parties hereto desire to further modify the Loan Agreement in
accordance with the terms and conditions set forth herein.
AGREEMENT
NOW THEREFORE, for and in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged the parties hereto agree as follows:
1. SCHEDULE 1 OF THE LOAN AGREEMENT. The Loan Agreement is hereby
modified by substituting SCHEDULE I attached to this Modification for SCHEDULE I
attached to the Loan Agreement.
2. SECTION 9.05 OF THE LOAN AGREEMENT. Section 9.05 of the Loan
Agreement is hereby in its entirety to read as follows:
9.05. NOTICES. All notices, statements, requests and demands
given to or made upon either party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given or
made two (2) days after the same are deposited in the United States
mail, postage prepaid, or immediately upon personal delivery,
addressed as follows:
If to the Bank: KeyBank National Association
00 Xxxx Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000, and
Attention: Xxxxxxxx X. Xxxxx, Vice President
If to the Developer
or a Borrower: c/o Xxxxxxxx Xxxx BTS, Inc.
0000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxx
or in accordance with the latest unrevoked written direction from either party
to the other party hereto.
3. EXPENSES. Borrower shall pay all costs incidental to this
Modification, including but not limited to title insurance, survey charges,
reasonable attorneys' fees, appraisals, insurance, inspecting engineers' and/or
architect's fees, environmental fees, and all other incidental expenses of Bank.
4. REPRESENTATIONS AND WARRANTIES. Developer hereby represents and
warrants to Bank that there does not presently exist any default under the Loan
Agreement or any event which with the notice or lapse of time or both would
constitute a default under the Loan Agreement and that each of the
representations and warranties set forth in the Loan Agreement remain true and
correct as of the date hereof, except to the extent said representations and
warranties specifically apply to those items explicitly modified by or otherwise
disclosed in this Modification, and each of said representations and warranties
is hereby incorporated herein by reference and modified as necessary to apply to
and cover the undertakings of Developer evidenced by this Modification.
5. CONTINUING EFFECT. All other terms, conditions, provisions,
representations and warranties set forth in the Loan Agreement not specifically
relating to those items explicitly modified by or otherwise disclosed in this
Modification shall remain unchanged and shall continue in full force and effect.
This Modification shall, wherever possible, be construed in a manner consistent
with the Loan Agreement; provided, however, in the event of any irreconcilable
inconsistency between the terms of this Modification and the terms of the Loan
Agreement, the terms of this Modification shall control.
6. WAIVER. No provision hereof shall constitute a waiver of any of the
terms or conditions of the Loan Agreement, other than those terms or conditions
explicitly modified or otherwise affected hereby.
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IN WITNESS WHEREOF, Developer and Bank have caused this Fourth Modification
of Master Construction Loan Agreement to be duly executed as of the date and
year first above written.
"DEVELOPER"
XXXXXXXX XXXX BTS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxx
------------------------------------------
Printed: Xxxxxxx X. Xxx
-------------------------------------
Title: Executive Vice President
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"BANK"
KEYBANK NATIONAL ASSOCIATION, a national banking
association
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------------
Printed: Xxxxxxxx X. Xxxxx
------------------------------------
Title: Vice President
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SCHEDULE I
PetsMart, Inc. shall be an Approved Tenant for one PetsMart facility in
Savannah, Georgia and for one PetsMart facility in Arvada, Colorado.
Stater Bros. shall be an Approved Tenant for one Stater Bros. grocery retail
facility in Murrieta, California.
