EXHIBIT 10 (i)
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FIFTH AMENDMENT TO LOAN AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AGREEMENT ("Fifth Amendment") is
dated as of March 7, 1997 by and between BANYAN STRATEGIC REALTY
TRUST, a Massachusetts business trust ("Borrower"), and AMERICAN
NATIONAL BANK AND TRUST COMPANY OF CHICAGO, a national banking
association ("Lender").
WHEREAS, Borrower and Lender entered into a Loan Agreement dated
as of December 1, 1994 (the "Original Loan Agreement") relating to a
loan made by Lender to Borrower in the maximum principal amount
outstanding at any time not to exceed the lesser of (i) $15,000,000,
and (ii) sixty percent (60%) of the Collateral Value of all of the
Designated Properties and Designated Debt Instruments, as more fully
set forth in the Original Loan Agreement; and
WHEREAS, Borrower and Lender entered into that certain Amendment
to Loan Agreement dated as of December 1, 1994 (the "First
Amendment") pursuant to which certain Designated Properties,
Designated Debt Properties and Property Owners were withdrawn from
the Original Loan Agreement; and
WHEREAS, Borrower and Lender entered into that certain Second
Amendment to Loan Agreement dated as of December 21, 1994 (the
"Second Amendment") pursuant to which a Designated Property and
Property Owner were withdrawn from the Original Loan Agreement; and
WHEREAS, Borrower and Lender entered into that certain Third
Amended Loan Agreement dated as of December 18, 1995 (the "Third
Amendment") pursuant to which, among other things, Borrower and
Lender increased the amount set forth in subclause (i) of the first
Recital paragraph herein from $15,000,000 to $30,000,000; and
WHEREAS, Borrower and Lender entered into that certain Fourth
Amendment to Loan Agreement dated as of January 7, 1997 (the "Fourth
Amendment") pursuant to which, among other things, (a) Borrower and
Lender further changed the amount set forth in subclause (i) of the
first Recital paragraph herein to $20,000,000 and (b) the Loan
Maturity Date was extended to May 31, 1998, and (c) the Loan
Conversion Date was extended to May 31, 1997 (the Original Loan
Agreement, the First Amendment, the Second Amendment, the Third
Amendment and the Fourth Amendment are hereinafter collectively
referred to as the "Loan Agreement"); and
WHEREAS, Borrower and Lender desire to further amend the Loan
Agreement as herein set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants
herein contained, Borrower and Lender do hereby agree as follows:
1. Definitions. Capitalized terms used in this Fifth Amendment
but not otherwise defined herein shall have the meaning ascribed to
them in the Loan Agreement.
2. Additional Designated Property; Additional Property Owner.
a. The property listed on Exhibit "A" attached hereto and
made a part hereof (the "Atlanta Designated Property") shall be
considered a Designated Property in addition to the Designated
Properties previously identified in the Loan Agreement. Without
limiting the generality of the foregoing, and except as specifically
set forth herein, all representations, warranties, covenants,
agreements and other provisions of the Loan Agreement relating to
Designated Properties shall be deemed to be made on and as of the
date hereof with respect to the Atlanta Designated Property, as if
the Atlanta Designated Property were initially included as a
Designated Property in the Loan Agreement.
b. BSRT Phoenix Business Park Corp., an Illinois corporation,
being the property owner listed on Exhibit "A" hereto ("Atlanta
Property Owner") shall be considered a Property Owner in addition to
the initial Property Owners identified in the Loan Agreement (and
also, therefore, included within the term Borrowing Entities).
Without limiting the generality of the foregoing, and except as
specifically set forth herein, all representations, warranties,
covenants, agreements and other provisions of the Loan Agreement
relating to Property Owners shall be deemed to be made on and as of
the date hereof with respect to the Atlanta Property Owner as if the
Atlanta Property Owner were initially included as a Property Owner in
the Loan Agreement.
c. The Deed to Secure Debt, Assignment and Security Agreement
("Deed to Secure Debt Assignment and Security Agreement") and
Additional Collateral Documents executed pursuant hereto, as they may
be amended from time to time, shall be considered a Mortgage and
Additional Collateral Documents, respectively, under the Loan
Agreement, as amended hereby, in addition to the other Mortgages and
Additional Collateral Documents referred to thereunder. Without
limiting the generality of the foregoing, all representations,
warranties, covenants, agreements and other provisions in the Loan
Agreement relating to Mortgages and Additional Collateral Documents
shall be deemed to be made on and as of the date hereof with respect
to the Deed to Secure Debt, Assignment and Security Agreement and
Additional Collateral Documents being executed pursuant hereto.
d. After giving effect to the provisions of Section 2a and 2b
hereof, the Designated Properties, Designated Debt Properties and the
Property Owners shall be as set forth on Exhibit "B" attached hereto
and made a part hereof.
3. Deliveries. Concurrent herewith, Borrower will deliver or
cause to be delivered to Lender the following documents each in form,
substance and execution and showing solely matters satisfactory to
Lender:
a. A Guaranty with respect to payments due under the Note, as
amended concurrent herewith, executed by the Atlanta Property Owner
identified on Exhibit "A" hereto.
b. A Deed to Secure Debt, Assignment and Security Agreement
executed by the Atlanta Property Owner, subject only to the Permitted
Title Exceptions.
c. UCC Financing Statements
d. An Assignment of Leases and Rents, with respect to the
Atlanta Designated Property, executed by the Atlanta Property Owner.
e. A Pledge of Stock, with respect to the Atlanta Property
Owner.
f. An Assignment of Licenses and Permits, with respect to the
Atlanta Designated Property executed by the Atlanta Property Owner,
in favor of Lender and consents thereto by all licensing and
permitting authorities.
g. An Assignment of Management Contract, with respect to the
Atlanta Designated Property, executed by the Atlanta Property Owner
in favor of Lender and a consent thereto by the managing agent.
h. An Environmental Indemnity, with respect to the Atlanta
Designated Property, executed by Borrower and the Atlanta Property
Owner.
i. An ADA Indemnity, with respect to the Atlanta Designated
Property, executed by Borrower and the Atlanta Property Owner.
j. A copy of any and all Tenant Leases with the Occupancy
Tenants at the Atlanta Designated Property, certified to Lender by
Borrower and the Atlanta Property Owner to be true, correct and
complete.
k. A copy of the Rent Roll for the Atlanta Designated
Property, certified to Lender by Borrower and the Atlanta Property
Owner to be true, correct and complete.
l. Certified resolutions of the Trustees of Borrower
authorizing the execution of this Fifth Amendment, the documents
provided herein by Borrower and the Atlanta Property Owner and the
rendering of full performance therein.
m. A certified copy of the Articles of Incorporation and By-
Laws of the Atlanta Property Owner, and certified
corporate resolutions of the directors thereof, authorizing the
execution of the Deed to Secure Debt, Assignment and Security
Agreement, Additional Collateral Documents and/or amendments to any
or all of the foregoing.
n. Copies of all recorded documents affecting the Atlanta
Designated Property.
o. Such estoppel certificates, subordination and attornment
agreements and other certificates, documents and assurances from and
with respect to the Occupancy Tenants at the Atlanta Designated
Property as Lender may require.
p. Such other papers, instructions and documents as the Title
Insurer may require for the issuance of title insurance commitments
or interim binders, for a mortgage title insurance policy or policies
in such forms and amounts, and with such endorsements as Lender
reasonably may require.
q. Such other documents and instruments as are required
pursuant hereto whether as conditions precedent to any of Lender's
obligations, or otherwise, or pursuant to any one or more of the
Note, Deed to Secure Debt, Assignment and Security Agreement, or any
of them, any one or more of the items of Additional Collateral
Documents or any amendment to any of the foregoing.
4. Representations and Warranties. Without limitation of any
representations and warranties in the Loan Agreement, or of any of
the provisions hereof, Borrower hereby represents, warrants and
covenants as follows:
a. All representations and warranties made by Borrower in the
Loan Agreement are true and correct on and as of the date hereof.
All such representations and warranties, together with all covenants
and agreements of Borrower set forth in the Loan Agreement, are
hereby remade on and as of the date hereof.
b. The Atlanta Property Owner has good and marketable fee
simple title to the Atlanta Designated Property, subject only to such
exceptions as are shown on Exhibit "C" attached hereto and made a
part hereof. Borrower owns all of the issued and outstanding shares
of stock of the Atlanta Property Owner, free and clear of any liens,
claims or encumbrances (except to the extent shown on stock
certificates of the Atlanta Property owner in respect of customary
and mandatory restrictions under federal securities laws).
c. Borrower has delivered to Lender true and correct copies
of the Tenant Leases relating to the Atlanta Designated Property.
Attached hereto as Exhibit "D" and made a part hereof is a true,
correct and complete Rent Roll for the Atlanta Designated Property
listing with respect to each Tenant Lease the security deposit, rent
expiration date and, if applicable, any renewal options, purchase
options, rights of first offer or first refusal, termination rights
and co-tenancy provisions, other material conditions.
d. The representations and warranties made in Paragraph A of
Article II of the Original Loan Agreement apply to this Fifth
Amendment in the same manner as applicable therein to the Original
Loan Agreement, and also apply to the documents being executed
pursuant hereto in the same manner as applicable therein to the Note,
Reimbursement Agreement, Mortgages and Additional Collateral
Documents.
The representations and warranties contained in this Fifth
Amendment are true as of the date hereof and will be true and will be
deemed remade at and as of the date of any disbursement of the
proceeds of the Loan, except for the necessary effect of the
transactions contemplated by the Loan Agreement as amended by this
Fifth Amendment.
5. Waiver. Borrower hereby joins Atlanta Property Owner in
waiving the operation of any applicable statute law or regulation
having a contrary effect to the provisions of the paragraph
immediately preceding paragraph No. 1 of the Deed to Secure Debt
Assignment and Security Agreement.
6. Counterparts. This document may be executed in two (2) or more
counterparts, all of which taken together shall constitute one (1)
original.
7. Headings. Section headings used herein are for reference and
convenience only and are not intended to be substantive and shall not
be deemed to limit or otherwise affect the interpretations of this
Fifth Amendment.
8. Conflict; Inconsistency. Except as amended by this Fifth
Amendment, the Loan Agreement shall remain in full force and effect.
In the event of any conflict or inconsistency between the terms and
provisions of the Loan Agreement and the terms and provisions of this
Fifth Amendment, the terms and provisions of this Fifth Amendment
shall control to the extent necessary to resolve such conflict or
inconsistency. Upon full execution of this Fifth Amendment, any
references herein or elsewhere to the Loan Agreement shall be deemed
to be references to the Loan Agreement as amended by this Fifth
Amendment.
9. Successors; Assigns; Integration; Law. The provisions hereof
shall be binding upon and inure to the benefit of the parties hereto
and their respective legal representatives, successors and assigns.
This instrument has been made, executed and delivered in the State of
Illinois and shall be governed by and construed in accordance with
the laws of the State of Illinois.
IN WITNESS WHEREOF the parties have executed this Fifth
Amendment as of the day and year first above set forth.
LENDER:
BORROWER:
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, a national
banking association
BANYAN STRATEGIC REALTY TRUST, a
Massachusetts business trust
By: /s/ Xxxxxx X. Xxxxxxxxxx
By: /s/ Xxxx X. Xxxxxx
Its: Vice President
Its: Vice President
EXHIBIT "A"
ATLANTA DESIGNATED PROPERTY
PROPERTY PROPERTY OWNER
Phoenix Business Park BSRT Phoenix Business
0000 Xxxxxxxxx Xxxxxxxxxx Xxxx Corp., an Illinois
Atlanta, Georgia Corporation
EXHIBIT "B"
TO FIFTH AMENDMENT TO LOAN AGREEMENT
DESIGNATED PROPERTY PROPERTY OWNER
Fountain Square Office Building BSRT Fountain Square Corporation,
(Colonial Penn Building) an Illinois corporation
(Tampa, Florida)
Buildings A, C, D & F BSRT Lexington Trust, a
Lexington Business Center Massachusetts business trust
Lexington, Kentucky
("Kentucky I Property")
Building B BSRT Lexington B Corp.,
Lexington Business Center an Illinois corporation
0000 Xxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx
("Kentucky II Property")
Newtown Distribution Center BSRT Newtown Trust, a
Lexington, Kentucky Massachusetts business trust
("Newtown Property")
Phoenix Business Park BSRT Xxxxxxx Xxxxxxxx Xxxx Xxxx.,
Xxxxxxx, Xxxxxxx an Illinois corporation
DESIGNATED DEBT PROPERTY PROPERTY OWNER
None None
EXHIBIT C
(a) Taxes for the year 1997 and subsequent years, not yet due and
payable.
(b) Easements to Georgia Power Company, recorded in the aforesaid
records:
a. Dated March 11, 1980 and recorded in Deed Book 4256, page
457;
b. Dated June 26, 1992 and recorded in Deed Book 7337, page
269;
c. Dated February 18, 1992 and recorded in Deed Book 7337,
page 271; and
d. Dated August 18, 1994 and recorded in Deed Book 8471,
page 583.
(c) Easement between Consolidated Capital Growth Fund and
F.M.I/Equity Shallowford Associates, dated August 11, 1980, recorded
September 15, 1980 in Deed Book 4335, page 376, aforesaid records.
(d) Attention is directed to the fact that Interstate Highway 85 is
a limited access highway, with points of permitted access to the
Highway being controlled by the State Highway Department of Georgia.
(e) Easement from Century Properties Fund XV to BellSouth
Telecommunications, Inc., dated November 16, 1994, recorded
November 16, 1994 in Deed Book 8383, page 615, aforesaid records.
(f) ALTA/ACSM Land Title Survey prepared for BRST Phoenix Business
Park Corp., American National Bank & Trust Company of Chicago and
Chicago Title Insurance Company by Planners and Engineers
Collaborative, dated August 29, 1994, revised October 25, 1996
discloses the following:
a. 50' buffer area along the southerly and southwesterly
portion of the subject property;
b. 75' building set back line along the westerly and easterly
lines of the subject property;
c. Building "C" located on the subject property violates the
75' building set back line by approximately 45 feet;
d. Building located in the northerly portion of the subject
property violates the 75' building set back line by approximately 19
feet;
e. 20' side building line along the northeasterly portion of
the subject property;
f. Curbing in the westerly portion of the property encroaches
onto the right of way of Xxxxxxx Road;
SIXTH AMENDMENT TO LOAN AGREEMENT
THIS SIXTH AMENDMENT TO LOAN AGREEMENT ("Sixth Amendment") is
dated as of April 29, 1997 by an between BANYAN STRATEGIC REALTY
TRUST, a Massachusetts business trust ("Borrower"), and AMERICAN
NATIONAL BANK AND TRUST COMPANY OF CHICAGO, a national banking
association ("Lender").
WHEREAS, Borrower and Lender entered into a Loan Agreement dated
as of December 1, 1994 (the "Original Loan Agreement") relating to a
loan made by Lender to Borrower in the maximum principal amount
outstanding at any time not to exceed the lesser of (i) $15,000,000
and (ii) sixty percent (60%) of the Collateral Value of all of the
Designated Properties and Designated Debt Instruments, as more fully
set forth in the Original Loan Agreement; and
WHEREAS, Borrower and Lender entered into that certain Amendment
to Loan Agreement dated as of December 1, 1994 (the "First
Amendment") pursuant to which certain Designated Properties,
Designated Debt Properties and Property Owners were withdrawn from
the Original Loan Agreement; and
WHEREAS, Borrower and Lender entered into that certain Second
Amendment to Loan Agreement dated as of December 21, 1994 (the
"Second Amendment") pursuant to which a Designated Property and
Property Owner were withdrawn from the Original Loan Agreement; and
WHEREAS, Borrower and Lender entered into that certain Third
Amended Loan Agreement dated as of December 18, 1995 (the "Third
Amendment") pursuant to which, among other things, Borrower and
Lender increased the amount set forth in subclause (i) of the first
Recital paragraph herein from $15,000,000 to $30,000,000; and
WHEREAS, Borrower and Lender entered into that certain Forth
Amendment to Loan Agreement dated as of January 7, 1997 (the "Fourth
Amendment") pursuant to which, among other things, (a) Borrower and
Lender further changed the amount set forth in subclause (i) of the
first Recital paragraph herein to $20,000,000 and (b) the Loan
Maturity Date was extended to May 31, 1998, and (c) the Loan
Conversion Date was extended to May 31, 1997, and whereas, Borrower
and Lender entered into that certain Fifth Amendment to Loan
Agreement dated March 7, 1997 (the "Fifth Amendment") pursuant to
which, among other things, there was reflected the then current
Designated Properties and Property Owners (the Original Loan
Agreement, as amended by the First Amendment, the Second Amendment,
the Third Amendment, the Fourth Amendment and the Fifth Amendment, is
hereinafter referred to as the "Loan Agreement"); and
WHEREAS, Borrower and Lender desire to (a) increase the amount
set forth in subclause (a) of the fifth Recital paragraph herein from
$20,000,000 to $30,000,000, (b) change the date set forth in
subclause (b) of the fifth Recital paragraph herein from May 31, 1998
to November 30, 1998, subject to extension to May 31, 1999 as herein
provided and (c) further amend the Loan Agreement as herein set
forth.
NOW, THEREFORE, for and in consideration of the mutual covenants
herein contained, Borrower and Lender do hereby agree as follows:
1. Definitions. Capitalized terms used in this Sixth
Amendment but not otherwise defined herein shall have the meaning
ascribed to them in the Loan Agreement.
2. Two Notes. Concurrent herewith, in addition to the
Amended and Restated Note, there is being executed a note made by
Borrower payable to the order of Lender in the principal amount of
Ten Million Dollars ($10,000,000), bearing interest at the same rate
as set forth in the Amended and Restated Note, payable on the same
date and dates as the Amended and Restated Note is payable on, or
such earlier date as is required therein or in the Loan Agreement
(which $10,000,000 note, as the same may hereafter by renewed,
restated, replaced, extended or amended from time to time, is
hereafter referred to as the "$10,000,000 Note").
In addition to the matters set forth in the Loan Agreement
as Events of Default thereunder, the occurrence of a Default under
and as defined in either or both of the amended and Restated Note and
the $10,000,000 Note shall be an Event of Default under the Loan
Agreement, as amended hereby. An Event of Default under and as
defined in the Loan Agreement, as amended hereby, shall be deemed to
be a Default under each and both of the Amended and Restated Note and
the $10,000,000 Note.
The indebtedness, obligations and liabilities secured or
guaranteed by or otherwise referred to in the Mortgages and
Additional Collateral Documents shall include:
a. the indebtedness, obligations and liabilities
evidenced by the $10,000,000 Note (except for the Mortgages and
Additional Collateral Documents executed by the Tampa Property Owner,
BSRT Fountain Square Corp.);
b. the indebtedness, obligations and liabilities
evidenced by the Amended and Restated Note; and
c. the obligations and liabilities otherwise
secured or guaranteed by or referenced in, the said Mortgages and
Additional Collateral Documents.
A Default as defined in the Amended and restated Note shall
constitute a Default as set forth in the $10,000,000 Note; and a
Default as defined in the $10,000,000 Note shall constitute a Default
as defined in the Amended and Restated Note. All amounts advanced by
Lender to Borrower or otherwise constituting indebtedness of Borrower
to Lender shall first be allocated to the Amended and Restated Note
and then to the $10,000,000 Note. All amounts paid to Lender in
respect of the Loan Agreement shall be allocated and applied, in
respect of principal and interest, first to interest on the
$10,000,000 Note, second to interest on the Amended and Restated
Note, third to principal on the $10,000,000 Note and fourth to
principal on the Amended and Restated Note (except that any amounts
paid to Lender by or from the Tampa Property Owner (BSRT Fountain
Square Corp.) or from foreclosure of or other proceeding against the
property owned by it, shall be allocated and applied solely to the
Amended and Restated Note).
3. Other Documents. Concurrent herewith Borrower is amending or
causing to be amended the Note, the Mortgages and the Additional
Collateral Documents, for the purpose of reflecting the foregoing
amendments and other agreements. All references in the Loan
Agreement to:
a. the "Note" are hereafter deemed to be references to
(a) the Note as amended and restated by Amended and Restated Note 7
made concurrent herewith by Borrower payable to the order of Lender
in the maximum principal amount of $20,000,000, subject to the
limitations therein provided, as the same may hereafter be renewed,
restated, replaced, extended or amended from time to time, and (b)
the $10,000,000 Note, subject to the limitations therein provided, as
the same may hereafter be renewed, restated, replaced, extended or
amended from time to time.
b. the "Mortgages" are hereafter deemed to be
references to the Mortgages as amended concurrent herewith, as the
same hereafter may be amended from time to time, and all Mortgages
which are executed and delivered to Lender concurrent herewith and
which from time to time hereafter may be executed and delivered to
Lender as security for or relating to the indebtedness and
obligations as evidenced by any one or more of the Note and
Reimbursement Agreement, as defined above, and the Loan Agreement, as
amended hereby, all as same may be amended from time to time;
c. the "Reimbursement Agreement" are hereafter deemed
to be references to any one or more Reimbursement Agreements
hereafter executed or delivered to Lender in respect of any one or
more Letters of Credit hereafter issued by Lender in respect to the
Loan Agreement, as amended hereby, as the same may hereafter be
amended from time to time; and
d. the "Additional Collateral Documents" are hereafter
deemed to be references to the Additional Collateral Documents as
amended concurrent herewith, as the same may hereafter be amended
from time to time, and all other mortgages, documents and instruments
(other than the Note, Loan Agreement, as amended hereby, Mortgages
and Reimbursement Agreement) which are executed and delivered to
Lender concurrent herewith and which from time to time hereafter may
be executed and delivered to Lender as security for or relating to
the indebtedness and obligations evidenced by any one or more of the
Note, Loan Agreement and Reimbursement Agreement, as defined above,
as same may be amended from time to time.
4. Loan Conversion Date. The definition of "LOAN CONVERSION DATE"
set forth in the "DEFINITIONS" section of the Original Loan
Agreement, as amended by the Fourth Amendment, is hereby deleted in
its entirety and the following substituted therefor:
"LOAN CONVERSION DATE. November 30, 1997, or earlier as
provided in Paragraph D of Article I hereof.
The Loan Conversion Date is nevertheless subject to extension
as provided in Paragraph 5 hereof.
5. Loan Maturity Date. The definition of "LOAN MATURITY DATE" set
forth in the "DEFINITIONS" section of the Original Loan Agreement, as
amended by the Fourth Amendment, is hereby deleted in its entirety
and the following substituted therefor:
"LOAN MATURITY DATE. November 30, 1998, being the date
upon which the final payment of all principal and interest on the
Loan is due. Borrower shall have the right to extend the Loan
Maturity Date from November 30, 1998 to May 30, 1999 upon written
notice (the "Extension Notice") thereof served upon Lender not
earlier than October 1, 1997 nor later than November 15, 1997,
subject to satisfaction of the following conditions:
(a) On or before the date of the Extension Notice,
Borrower or its subsidiary shall have completed the disposition of
its interest in "H" Street, Washington, DC property pursuant to an
arms-length sale to a non-affiliated purchaser, without Borrower
having taken any special charge or downward valuation adjustment
against that asset (other than normal depreciation and amortization)
from the date prior to the date hereof that Borrower last did so to
and including the date of said disposition, or as a result thereof.
(b) All dividends declared by Borrower, and amounts
distributed by Borrower to shareholders for each of the first three
(3) fiscal quarters of 1997 shall have been exceeded by the Funds
from Operations of Borrower for such fiscal quarter.
(c) The Extension Notice shall be accompanied by
payment of an extension loan fee of $37,500, representing 1/8 of 1%
of the $30,000,000 Loan maximum.
(d) The Extension Notice shall be accompanied by a
certification of the chief financial officer of Borrower that the
conditions set forth in (a) and (b) above have been satisfied.
An extension of the Loan Maturity Date as set forth above
shall extend the Loan Conversion Date from November 30, 1997 to
May 31, 1998. The Loan shall nevertheless be due on such earlier
date that the Loan is due in the case of an Event of Default or as
otherwise provided herein or in the Note or Reimbursement Agreement."
6. Loan Amount.
a. In Paragraph A of Article I of the Original Loan
Agreement, as amended by the Third Amendment and Fourth Amendment,
the phrase "Twenty Million and no/100 Dollars ($20,000,000)" is
hereby deleted and the following substituted therefor: "Thirty
Million and no/100 Dollars ($30,000,000)".
b. All references in Paragraph F of Article I of the
Original Loan Agreement, as amended by the Third Amendment and Fourth
Amendment, to the sum of "$20,000,000" shall be deemed to be
references to the sum of $30,000,000".
c. In Paragraphs A and D of Article I of the Original
Loan Agreement, the phrase "Sixty percent (60%) is hereby changed to
"Sixty five percent (65%)."
7. Fee. Borrower shall pay to Lender a one time non-refundable
commitment and extension fee for the increase of the maximum Loan
Amount to $30,000,000 and for the extension of the Loan Maturity Date
to May 31, 1999 of One Hundred Twelve Thousand Five Hundred and
00/100 Dollars ($112,500), representing three eighths of one percent
(.375%) of the Thirty Million and 00/100 Dollars ($30,000,000) Loan
maximum, which shall be due and payable upon execution of this
Amendment by Borrower. This fee is in addition to and not in lieu of
any Letter of Credit fee, as and when applicable, and the unused
facility fee. Pursuant to the terms of the Fourth Amendment, on half
(1/2) of the $50,000 commitment fee imposed by the Fourth Amendment
(i.e., $25,000) is hereby credited against the said commitment and
extension fee herein. Lender is not obligated to grant any
additional extensions of the Loan Maturity Date or increase in the
maximum Loan Amount.
8. Total Debt to Total Shareholder's Equity. The ration of
1.0:1.0 set forth in Paragraph Q(3) of Article III of the Original
Loan Agreement, as amended by the Fourth Amendment, is hereby changed
to 2.5:1.0.
9. Additional Designated Property: Additional Property Owner.
a. The property listed on Exhibit "A" attached hereto
and made a part hereof (the "Illinois Designated Property") shall be
considered a Designated Property in addition to the Designated
Properties previously identified in the Loan Agreement. Without
limiting the generality of the foregoing, and except as specifically
set forth herein, all representations, warranties, covenants,
agreements and other provisions of the Loan Agreement relating to
Designated Properties shall be deemed to be made on and as of the
date hereof with respect to the Illinois Designated Property, as if
the Illinois Designated Property were initially included as a
Designated Property in the Loan Agreement.
b. BSRT Xxxxxxxxxxx Office Plaza, Inc., an Illinois
corporation, being the property owner listed on Exhibit "A" hereto
("Illinois Property Owner") shall be considered a Property Owner in
addition to the other Property Owners identified in the Loan
Agreement (and also, therefore, included within the term Borrowing
Entities). Without limiting the generality of the foregoing, and
except as specifically set forth herein, all representations,
warranties, covenants, agreements and other provisions of the Loan
Agreement relating to Property Owners shall be deemed to be made on
and as
of the date hereof with respect to the Illinois
Property Owner as if the Illinois Property Owner were initially
included as a Property Owner in the Loan Agreement.
c. The Mortgage and Additional Collateral Documents
executed pursuant hereto, as they may be amended from time to time,
shall be considered a Mortgage and Additional Collateral Documents
respectively, under the Loan Agreement, as amended hereby, in
addition to the other Mortgages and Additional Collateral Documents
referred to thereunder. Without limiting the generality of the
foregoing, all representations, warranties, covenants, agreements and
other provisions in the Loan Agreement relating to Mortgages and
Additional Collateral Documents shall be deemed to be made on and as
of the date hereof with respect to the said Mortgage and Additional
Collateral Documents being executed pursuant hereto.
d. After giving effect to the provisions of Section 8a
and 8b hereof, the Designated Properties and the Property Owners
shall be as set forth on Exhibit "B" attached hereto and made a part
hereof.
10. Deliveries. Concurrent herewith, Borrower shall deliver or
cause to be delivered to Lender the following documents each in form,
substance and execution and showing solely matters satisfactory to
Lender:
a. Amended and Restate Note; and $10,000,000 Note.
b. A Guaranty with respect to payments due under the
note executed by the Illinois Property Owner identified on Exhibit
"A" hereto.
c. Mortgage executed by the Illinois Property Owner,
subject only to the permitted Title Exceptions.
d. UCC Financing Statements.
e. An Assignment of Leases and Rents, with respect to
the Illinois Designated Property, executed by the Illinois Property
Owner.
f. A Pledge of Stock, with respect to the Illinois
Property Owner.
g. An Assignment of Licenses and Permits, with respect
to the Illinois Designated Property executed by the Illinois Property
Owner, in favor of Lender and consents thereto by all licensing and
permitting authorities.
h. An Assignment of Management Contract, with respect
to the Illinois Designated Property, executed by the Illinois
Property Owner in favor of Lender and a consent thereto by the
managing agent.
i. An Environmental Indemnity, with respect to the
Illinois Designated Property, executed by Borrower and the Illinois
Property Owner.
j. An ADA Indemnity, with respect to the Illinois
Designated Property, executed by Borrower and the Illinois Property
Owner.
k. A copy of any and all Tenant Leases with the
Occupancy Tenants at the Illinois Designated Property, certified to
Lender by Borrower and the Illinois Property Owner to be true,
correct and complete.
l. A copy of the Rent Roll for the Illinois Designated
Property, certified to Lender by Borrower and the Illinois Property
Owner to be true, correct and complete.
m. Certified resolutions of the Trustees of Borrower
authorizing the execution of this Sixth Amendment, the documents
provided herein by Borrower and the Illinois Property Owner and the
rendering of full performance therein.
n. A certified copy of the Articles of Incorporation
and By-Laws of the Illinois Property Owner, and certified corporate
resolutions of the directors thereof authorizing the execution of the
Mortgage, Additional Collateral Documents and/or amendments to any or
all of the foregoing.
o. Copies of all recorded documents affecting the
Illinois Designated Property.
p. Such estoppel certificates, subordination and
attornment agreements and other certificates, documents and
assurances from and with respect to the Occupancy Tenants at the
Illinois Designated Property as Lender may require.
q. Such other papers, instructions and documents as the
Title Insurer may require for the issuance of title insurance
commitments or interim binders, for a mortgage title insurance policy
or policies in such forms and amounts, and with such endorsements as
Lender reasonably may require.
r. Amendment to Documents - For Recording; and
Amendment to Documents - Not for Recording, regarding existing
documents for each Designated property existing as such prior to this
date.
s. Such other documents and instruments as are required
pursuant hereto whether as conditions precedent to any of Lender's
obligations, or otherwise, or pursuant to any one or more of the
Note, Mortgage, or any of them, any one or more of the items of
Additional Collateral Documents or any amendment to any of the
foregoing.
11. Representation and Warranties. Without limitation of any
representations and warranties in the Loan Agreement, or of any of
the provisions hereof, Borrower hereby represents, warrants and
covenants as follows:
a. All representations and warranties made by Borrower
in the Loan Agreement are true and correct on and as of the date
hereof. All such representations and warranties, together with all
covenants and agreements of Borrower set forth in the Loan Agreement,
are hereby remade on and as of the date hereof.
b. The Illinois Property Owner has good and marketable
fee simple title to the Illinois Designated Property, subject only to
such exceptions as are shown on Exhibit ("C") attached hereto and
made a part hereof. Borrower owns all of the issued and outstanding
share of stock of the Illinois Property Owner, free and clear of any
liens, claims or encumbrances (except to the extent shown on stock
certificates of the Illinois Property owner in respect of customary
and mandatory restrictions under federal securities laws).
c. Borrower has delivered to Lender true and correct
copies of the Tenant Leases relating to the Illinois Designated
Property. Attached hereto as Exhibit "D" and made a part hereof is a
true, correct and complete Rent Roll for the Illinois Designated
Property listing with respect to each Tenant Lease the security
deposit, rent, expiration date and, if applicable, any renewal
options, purchase options, rights of first offer or first refusal,
termination rights and co-tenancy provisions, other material
conditions.
d. The representations and warranties made in Paragraph
A of Article II of the Original Loan Agreement apply to this Sixth
Amendment in the same manner as applicable therein to the Original
Loan Agreement, and also apply to the documents being executed
pursuant hereto in the same manner as applicable therein to the Note,
Reimbursement Agreement, Mortgages and Additional Collateral
Documents.
The representations and warranties contained in this Sixth
Amendment are true as of the date hereof and will be true and will be
deemed remade at and as of the date of any disbursement of the
proceeds of the Loan, except for the necessary effect of the
transactions contemplated by the Loan Agreement as amended by this
Sixth Amendment.
12. Intentionally deleted.
13. Counterparts. This document may be executed in two (2) or more
counterparts, all of which taken together shall constitute one (1)
original.
14. Headings. Section headings used herein are for reference and
convenience only and are not intended to be substantive and shall not
be deemed to limit or otherwise affect the interpretation of this
Sixth Amendment.
15. Conflict; Inconsistency. Except as amended by this Sixth
Amendment, the Loan Agreement shall remain in full force and effect.
In the event of any conflict or inconsistency between the terms and
provisions of the Loan Agreement and the terms and provisions of this
Sixth Amendment, the terms and provisions of this Sixth Amendment
shall control to the extent necessary to resolve such conflict or
inconsistency. Upon full execution of this Sixth Amendment, any
references herein or elsewhere to the Loan Agreement shall be deemed
to be references to the Loan Agreement as amended by this Sixth
Amendment.
16. Successors; Assigns, Integration; Law. The provisions hereof
shall be binding upon and inure to the benefit of the parties hereto
and their respective legal representatives, successors and assigns.
This instrument has been made, executed and delivered in the State of
Illinois and shall be governed by and construed in accordance with
the laws of the State of Illinois.
IN WITNESS WHEREOF the parties have executed this Sixth
Amendment as of the day and year first above set forth.
LENDER: BORROWER:
AMERICAN NATIONAL BANK AND TRUST BANYAN STRATEGIC REALTY TRUST, a
COMPANY OF CHICAGO, a national Massachusetts business trust
banking association
By: By:
Its: Its:
EXHIBIT "A"
ILLINOIS DESIGNATED PROPERTY
PROPERTY PROPERTY OWNER
Butterfield Office Plaza BSRT Butterfield Office
0000 Xxxxxxxxxxx Xxxx Xxxxx, Xxx., an Illinois
Xxx Xxxxx, Xxxxxxxx 00000 corporation
EXHIBIT "B"
TO SIXTH AMENDMENT TO LOAN AGREEMENT
DESIGNATED PROPERTY PROPERTY OWNER
Fountain Square Office Building BSRT Fountain Square Corporation,
(Colonial Penn Building (Tampa, an Illinois corporation
Florida)
Buildings A, C, D & F BSRT Lexington Trust, a
Lexington Business Center Massachusetts business trust
Lexington, Kentucky
("Kentucky I Property)
Building B BSRT Lexington B Corp., an
Lexington Business Center Illinois corporation
0000 Xxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx
("Kentucky II Property")
Newtown Distribution Center BSRT Newtown Trust, a
Lexington, Kentucky Massachusetts business trust
("Newtown Property")
Phoenix Business Park BSRT Xxxxxxx Xxxxxxxx Xxxx Xxxx.,
Xxxxxxx, Xxxxxxx an Illinois corporation
Butterfield Xxxxxx Xxxxx XXXX Xxxxxxxxxxx Xxxxxx Xxxxx,
Xxx Xxxxx, Xxxxxxxx Inc. an Illinois corporation
DESIGNATED DEBT PROPERTY DESIGNATED DEBT PROPERTY OWNER
None None
EXHIBIT "C"
PERMITTED TITLE EXCEPTIONS
1. TAXES FOR THE YEARS 1996 AND 1997.
TAXES FOR THE YEARS 1996 AND 1997 ARE NOT YET DUE AND PAYABLE.
PERMANENT INDEX NUMBER: 00-00-000-000.
NOTE: TAXES FOR THE YEAR 1995, AMOUNTING TO $274,312.68 ARE
PAID OF RECORD.
(AFFECTS EAST 595.85 FEET MEASURED ON NORTH BY EAST 481.92 FEET
MEASURED ON SOUTH LYING WEST OF OAK BROOK DEVELOPMENT COMPANY
SUBDIVISION NO. 2 IN NORTHEAST 1/4 SECTION 28, TOWNSHIP 39 NORTH,
RANGE 11, OF LOT 1 IN XXXXXX COMPANY M-1 INC. ASSESSMENT PLAT)
2. GRANT DATE DECEMBER 30, 1965 AND RECORDED FEBRUARY 9, 1966 AS
DOCUMENT R66-4660, FROM CHICAGO TITLE AND TRUST COMPANY, A
CORPORATION OF ILLINOIS, AS TRUSTEE UNDER TRUST AGREEMENT DATED JUNE
8, 1964 AND KNOWN AS TRUST NUMBER 46960 TO THE COMMONWEALTH EDISON
COMPANY, A CORPORATION OF ILLINOIS, FOR A PERPETUAL RIGHT, EASEMENT,
PERMISSION AND AUTHORITY TO CONSTRUCT, ERECT, OPERATE, USE, MAINTAIN,
RELOCATE, RENEW AND REMOVE OVERHEAD ELECTRIC TRANSMISSION LINES,
INCLUDING STEEL POLES, WIRES, CABLES, ANCHORS, UNDERGROUND
COUNTERPOLES, AND NECESSARY FIXTURES AND APPURTENANCES ATTACHED
THERETO, IN, ON, UNDER, OVER, THROUGH, ALONG AND ACROSS THE PREMISES
OF GRANTOR AND AS SHOWN ON THE PLAT OF OAK BROOK INTERNATIONAL OFFICE
CENTER SUBDIVISION, RECORDED JANUARY 3, 1972 AS DOCUMENT R72-4.
3. EASEMENT IN FAVOR OF THE COMMONWEALTH EDISON COMPANY, AND ITS
SUCCESSORS AND ASSIGNS, TO INSTALL, OPERATE AND MAINTAIN ALL
EQUIPMENT NECESSARY FOR THE PURPOSE OF SERVING THE LAND AND OTHER
PROPERTY, TOGETHER WITH THE RIGHT OF ACCESS TO SAID EQUIPMENT, AND
THE PROVISIONS RELATING THERETO, CONTAINED IN THE GRANT RECORDED AS
DOCUMENT R70-7381, AFFECTING THE SLY 10 FEET OF THE LAND.
4. EASEMENT IN FAVOR OF THE COMMONWEALTH EDISON COMPANY, AND ITS
SUCCESSORS AND ASSIGNS, TO INSTALL, OPERATE AND MAINTAIN ALL
EQUIPMENT NECESSARY FOR THE PURPOSE OF SERVING THE LAND AND OTHER
PROPERTY, TOGETHER WITH THE RIGHT OF ACCESS TO SAID EQUIPMENT, AND
THE PROVISIONS RELATING THERETO, CONTAINED IN THE GRANT RECORDED AS
DOCUMENT R72-56745, AFFECTING THE A 00 XXXX XXXXX XX XXXX XXXXX XX
EXHIBIT "A" ATTACHED THERETO AND MADE A PART THEREOF.
5. COVENANTS AND RESTRICTIONS (BUT OMITTING ANY SUCH COVENANT OR
RESTRICTION BASED ON RACE, COLOR, RELIGION, SEX, HANDICAP,
FAMILIAR STATUS OR NATIONAL ORIGIN UNLESS AND ONLY TO THE EXTENT THAT
SAID COVENANT (A) IS EXEMPT UNDER CHAPTER 42, SECTIONS 3607 OF THE
UNITED STATES CODE OR (B) RELATES TO HANDICAP BUT DOES NOT
DISCRIMINATE AGAINST HANDICAPPED PERSONS), CONTAINED IN INSTRUMENT
RECORDED AS DOCUMENT R71-36695, RELATING TO ARCHITECTURAL CONTROL,
SIGNS AND USE TOGETHER WITH SUCH FURTHER PROVISIONS CONTAINED
THEREIN.
NOTE: SAID INSTRUMENT CONTAINS NO PROVISION FOR A FORFEITURE
OF OR REVERSION OF TITLE IN CASE OF BREACH OF CONDITION.
6. THE LAND LIES WITHIN THE HINSDALE SANITARY DISTRICT, WHICH HAS
ACCEPTED FEDERAL GRANTS FOR SEWAGE TREATMENT WORKS PURSUANT TO PUBLIC
LAW 92-500. FEDERAL LAW REQUIRES A USER CHARGE SYSTEM SEPARATE FROM
GENERAL AD VALOREM PROPERTY TAXES.
7. (A) TERMS, PROVISIONS, AND CONDITIONS RELATING TO THE EASEMENT
DESCRIBED AS PARCELS 2 AND 3 CONTAINED IN THE INSTRUMENT CREATING
SAID EASEMENT.
(B) RIGHTS OF THE ADJOINING OWNER OR OWNERS TO THE CONCURRENT
USE OF SAID EASEMENT.
8. EASEMENT AGREEMENT RECORDED JANUARY 24, 1968 AS DOCUMENT R68-
2840, IN FAVOR OF NORTHERN ILLINOIS GAS COMPANY AND THE
COMMONWEALTH EDISON COMPANY, FOR THE PURPOSE OF INSTALLING AND
MAINTAINING ALL EQUIPMENT NECESSARY FOR SERVING THE LAND AND OTHER
PROPERTY WITH ELECTRICAL SERVICE, TOGETHER WITH RIGHT TO OVERHANG
AERIAL SERVICE WIRES AND THE RIGHT OF ACCESS THERETO, AS DEPICTED ON
EXHIBIT "A" ATTACHED THERETO AND MADE A PART THEREOF.
9. EXISTING UNRECORDED LEASES AND ALL RIGHTS THEREUNDER OF THE
LESSEES AND OF ANY PERSON OR PARTY CLAIMING BY, THROUGH OR UNDER THE
LESSEES PER RENT ROLL ATTACHED, WITH NO RIGHTS OF RENEWAL EXCEPT AS
SHOWN THEREON, AND NO RIGHTS OF FIRST REFUSAL, OPTIONS TO PURCHASE OR
OTHER PURCHASE RIGHTS.
EXHIBIT "D"
PROPERTY RENT ROLL AS OF JANUARY 8, 1997
ATLANTA
