FIRST MODIFICATION OF MASTER CONSTRUCTION LOAN AGREEMENT
THIS FIRST MODIFICATION, dated and effective as of September 15, 1997, is
made and entered into by and between XXXXXXXX XXXX BTS, INC., a Delaware
corporation having a notice address of 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000 ("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 (the "Loan Agreement").
B. The parties hereto desire to 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. PARAGRAPH 1.01 OF THE LOAN AGREEMENT. Paragraph 1.01 of the Loan
Agreement is hereby modified by:
a. Adding the following defined terms:
"Approved Retail Facility" shall mean the retail facility of an
Approved Tenant.
"Approved Tenant" shall mean OfficeMax, Inc. and any other tenant
set forth on SCHEDULE I attached hereto.
"Lease" shall mean a lease of a Project by and between the
Borrower owning such Project, as landlord, and an Approved Tenant, as
tenant.
"Subordination, Non-Disturbance and Attornment Agreement" shall
mean a Subordination, Non-Disturbance and Attornment Agreement in the
form of EXHIBIT P attached hereto or such other form reasonably
approved by Bank and Borrower, with blanks completed appropriately,
entered into by the Bank, a Borrower and an Approved Tenant with
respect to the Project
owned by such Borrower, subject to such changes as may be required to
comply with the requirements of the law of the state in which the Project
is located, as the same may be supplemented, modified or amended from
time to time.
b. Substituting the following in lieu of the existing like
definition:
"Debt Service Coverage Ratio" shall mean the ratio of (i)
projected total annual income to be received under a Lease for an
applicable Project, defined as base rent, common area maintenance
payments, insurance and real estate tax reimbursements and
miscellaneous sources, less projected total annual expenses for such
Project, defined as an annual management fee in an amount equal to
Three Percent (3%) of the projected total annual income of such
Project, an annual charge of Ten Cents ($.10) per square foot of such
Project for a capital reserve and expense of common area maintenance,
insurance, real estate taxes, and non-capitalized repairs, to (ii) the
projected total annual sum of all interest payments and principal
payments on the applicable Project Loan which would be due and payable
assuming the level amortization of such Project Loan over a period
equal to the lesser of (a) twenty (20) years or (b) the term of the
applicable Lease, plus five (5) years, at a per annum interest rate
equal to One and Three Quarters Percent (1.75%) above the most recent
weekly average yield on United States Treasury Securities adjusted to
a constant maturity of ten (10) years.
"Improvements" shall mean an Approved Retail Facility to be
constructed by a Borrower upon a Project Site in accordance with the
applicable Plans and Specifications.
"Project Site" shall mean the real estate designated by a
Borrower or the Developer and approved by the Bank for the location
and construction of any Approved Retail Facility.
c. Deleting the defined terms "OfficeMax Lease" and "OfficeMax
Subordination, Non-Disturbance and Attornment Agreement."
2. SUBPARAGRAPH 4.01(v) OF THE LOAN AGREEMENT. Paragraph 4.01(v) of the
Loan Agreement is modified in its entirety to read as follows:
v. LEASE. Such Borrower shall have furnished to the Bank an
executed Lease for the Project in respect of which such Project Loan
is being made having a term of not less than fifteen (15) years and in
a form and content acceptable to the Bank in all other respects,
including rental amounts payable thereunder. Such Lease shall include
the agreement of the Approved Tenant party thereto subordinate its
interest thereunder to any first mortgage on such Project upon the
request of the mortgagee thereunder and to attorn to such mortgagee,
or any purchaser of such Project at a foreclosure sale or pursuant to
a deed in lieu of foreclosure, provided the Bank agrees to reasonable
non-disturbance provisions if the Tenant is not in default beyond any
applicable cure period thereunder.
Such Borrower shall use reasonable efforts to attempt to
obtain the following provisions in such Lease:
i. The Approved Tenant party thereto shall agree to give
any mortgagee in respect of such Project (a "Mortgagee") by
registered or certified mail, a copy of any notice of default
served upon the landlord, provided that prior to such notice of
default tenant has been notified in writing, of the existence of
such mortgage and the address of such Mortgagee;
ii. A Mortgagee shall have sixty (60) days after its
receipt from such approved Tenant of written notice of a default
by landlord under the OfficeMax Lease to correct or cure such
default;
iii. Such Approved Tenant shall comply with all state and
federal environmental and hazardous materials statutes and
regulations, and shall not improperly store any hazardous
materials in, on or under such Project.
3. SUBPARAGRAPH 4.01(w) OF THE LOAN AGREEMENT. Paragraph 4.01(w) of the
Loan Agreement is modified in its entirety to read as follows:
w. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT.
Such Borrower shall have furnished to the Bank a Subordination,
Non-Disturbance and Attornment Agreement for the Project in respect of
which such Project Loan is being made, executed by such Borrower and
the Approved Tenant leasing such Project.
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4. SUBPARAGRAPH 4.03(d) OF THE LOAN AGREEMENT. Paragraph 4.03(d) of the
Loan Agreement is modified in its entirety to read as follows:
d. TENANT ESTOPPEL. A tenant estoppel letter in respect of
such Project executed by the Approved Tenant leasing such Project in a
form which is satisfactory to the Bank and such Approved Tenant.
5. PARAGRAPH 7.01 OF THE LOAN AGREEMENT. Paragraph 7.01 of the Loan
Agreement is modified in its entirety to read as follows:
7.01. PROHIBITION UPON TRANSFER, SECONDARY FINANCING. Such
Borrower shall not convey, sell (other than pursuant to a Project
Purchase Agreement), lease (other than pursuant to a Lease) or
otherwise dispose of all or any part of the Project in respect of
which such Project Loan is being made or any interest therein (legal
or equitable), or grant any security interest with respect to such
Project without the prior written consent of the Bank unless in
connection therewith the outstanding principal balance of such Project
Loan, together with all accrued and unpaid interest thereon is fully
paid.
6. PARAGRAPH 7.06 OF THE LOAN AGREEMENT. Paragraph 7.06 of the Loan
Agreement is modified in its entirety to read as follows:
7.06. LEASE\PROJECT PURCHASE AGREEMENT. Such Borrower will
not modify, amend, alter, terminate or cancel the Lease for the
Project in respect of which such Project Loan is being made, or
assign, transfer, pledge or encumber any of its right, title or
interest thereunder, without the Bank's prior written consent. Such
Borrower will not modify, amend, alter, terminate or cancel the
Project Purchase Agreement for such Project, or assign, transfer,
pledge or encumber any of its right, title or interest thereunder,
without the Bank's prior written consent.
7. SUBPARAGRAPH 8.01(m) OF THE LOAN AGREEMENT. Paragraph 8.01(m) of the
Loan Agreement is modified in its entirety to read as follows:
m. The Project in respect of which such Project Loan is being
made, or any part thereof shall be condemned or damaged by fire or
other casualty in such manner as to preclude, in the Bank's sole
reasonable judgment, the completion or restoration of the Improvements
forming a part of such Project by the Maturity Date for such Project
Loan or by the required completion date for such Improvements pursuant
to the Lease for such Project; or
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8. SUBPARAGRAPH 8.01(s) OF THE LOAN AGREEMENT. Paragraph 8.01(s) of the
Loan Agreement is modified in its entirety to read as follows:
s. Such Borrower has breached or defaulted under the Lease for
the Project in respect of which such Project Loan is being made, and
such breach or default has not been cured or corrected within any
applicable cure period provided under such Lease;
9. SCHEDULE I. Schedule I to the Loan Agreement shall be SCHEDULE I
attached to this Modification.
10. FAIRBANKS PROJECT UNCONDITIONAL GUARANTY. The second to last
paragraph of Paragraph 6 of that certain Unconditional Guaranty (Fairbanks
Project) executed by Developer in favor of Bank, dated August 4, 1997, is
deleted in its entirety.
11. 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.
12. 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.
13. 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.
IN WITNESS WHEREOF, Developer and Bank have caused this First Modification
of Master Construction Loan Agreement to be duly executed as of the date and
year first above written.
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"DEVELOPER"
XXXXXXXX XXXX BTS, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
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Printed: Xxxx X. Xxxxxx
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Title: Vice President
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"BANK"
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx X. Xxxxx
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Printed: Xxxxxxxx X. Xxxxx
--------------------------
Title: Vice President
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CONSENT OF BORROWER
The undersigned, being a Borrower under the Project Loan (as each such term
is defined in the Master Construction Loan Agreement (as defined in the
foregoing First Modification of Master Construction Loan Agreement)) from Bank
to undersigned hereby consents and agrees to the modifications to the Master
Construction Loan Agreement set forth in the foregoing First Modification of
Master Construction Loan Agreement and agrees to be bound thereby.
TCC-BTS
L.L.C., a Delaware
limited liability company
By: Xxxxxxxx Xxxx BTS, Inc.,
a Delaware corporation,
Its Managing Member
By: /s/ Xxxx X. Xxxxxx
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Printed: Xxxx X. Xxxxxx
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Title: Vice President
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REAFFIRMATION OF GUARANTY
The undersigned ("Guarantor"), as the guarantor of the Project Loan (as
defined in the Master Construction Loan Agreement (as defined in the foregoing
First Modification of Master Construction Loan Agreement)) made prior to the
date hereof, hereby consents to the foregoing First Modification of Master
Construction Loan Agreement and agrees that the execution and the performance of
such First Modification of Master Construction Loan Agreement shall not in any
way affect, impair, discharge, relieve or release the obligations of the
undersigned under its contract of guaranty in respect of such Project Loan,
which contract of guaranty is hereby ratified, confirmed and reaffirmed in all
respects and is hereby extended upon its same terms consistent with such First
Modification of Master Construction Loan Agreement. Said contract of guaranty
shall continue in full force and effect until all obligations in respect of such
Project Loan are fully paid and performed.
Executed effective as of the 15th day of September, 1997.
XXXXXXXX XXXX MW, INC.,
A DELAWARE CORPORATION
By: /s/ Xxxxxxx X. Xxx
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Printed Name: Xxxxxxx X. Xxx
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Title: Vice President
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SCHECDULE I
PetsMart, Inc. shall be an Approved Tenant only for one PetsMart facility in
Xxxxx, Oklahoma.
