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EXHIBIT 10.2
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(SOCIETE GENERALE)
SECOND LOAN MODIFICATION AGREEMENT
This Second Loan Modification Agreement ("Agreement") is entered into
as of _____________, 1997 between RGI Holdings, Inc. a Washington corporation
("Lender"), VMIF/Anden Wayside Venture, an Illinois general partnership
("Borrower"), and VMIF/Anden Southbridge Venture, an Illinois general
partnership ("Obligor").
Recitals
A. At the request of Borrower and Obligor, Lender agreed to
modify the Loan Documents as provided in the Loan Modification Agreement dated
as of May 21, 1996 ("First Loan Modification"). Capitalized terms used herein
and not defined herein shall have the meanings set forth in the First Loan
Modification.
B. Borrower and Obligor have now requested that Lender further
modify the Loan Documents to, among other things, reduce the interest rate on
the Loan, defer certain interest payments, and forbear from taking certain
action against Borrower and Obligor for certain periods of time.
C. Lender is willing to modify the Loan Documents on the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants set forth
below, Lender, Borrower, and Obligor agree to the following:
1. Reaffirmation of Obligations Under Loan Documents. Borrower
and Obligor reaffirm all of their respective obligations under the Loan
Documents. Borrower and Obligor acknowledge and confirm that Borrower is
justly indebted to Lender under the Loan Documents and that the amounts owed by
Borrower to Lender under the Loan Agreement and Note are as set forth on
Exhibit A attached hereto.
2. Reduction in Interest Rate. Subject to the fulfillment of the
conditions precedent set forth in Section 5 hereof, Lender agrees to reduce the
interest rate on the Loan, effective as of January 1, 1997, from the Prime Rate
(as defined in Section 8(b) of the First Loan Modification) plus six percent
(6%) to the lesser of (a) the Prime Rate plus two percent (2%) or (b) Libor
Rate (as defined below) plus two and one-half percent (2.5%). The "Libor
Rate" means the one-month London Interbank Offered Rate as published in the
Wall Street Journal by Dow Xxxxx & Company, Inc.
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3. Deferral of Interest Payments. Subject to the prior
fulfillment of the conditions precedent set forth in Section 5 hereof, Lender
agrees that all interest payments due on the Loan from and after January 1,
1997 shall be deferred until the earlier of (a) December 31, 1997, (b) the date
on which Borrower refinances the Loan, or (c) the date on which Borrower has
funds available from other sources (such as the sale of certain properties) to
pay accrued interest on the Loan.
4. Forbearance with Respect to Defaults. Subject to the prior
fulfillment of the conditions precedent set forth in Section 5 hereof, Lender
covenants and agrees that from the date hereof until December 31, 1997, for any
and all Events of Default under the Loan Documents as of the date hereof, and
for any event or circumstance which, with the passage of time or the giving of
notice or both, would have constituted an Event of Default under the Loan
Documents as of the date hereof:
a. Lender shall not accelerate the Loan; and
b. Lender shall not attach, sequester, foreclose,
replevin or otherwise initiate any action against Borrower or Obligor
or any of their respective assets or properties.
5. Conditions Precedent. Lender's obligations under this
Agreement are subject to the prior fulfillment of the following conditions
precedent:
a. This Agreement shall have been duly executed and
delivered by Lender, Borrower and Obligor.
b. The Effective Date shall have occurred under Section
4 of the Stipulation and Agreement of Settlement signed in connection
with the class action litigation against Legend Properties, Inc.
("Legend") in Delaware relating to the merger of RGI U.S. Holdings,
Inc. and Legend, and Lender shall have received a legal opinion
satisfactory to it in form and substance confirming that the
effectiveness of said merger can no longer be challenged by the
shareholders of Legend or any other party.
c. Lender shall have received certified copies of (i)
the corporate and/or partnership resolutions authorizing Borrower and
Obligor to enter into and perform this Agreement, (ii) an incumbency
certificate for the person signing this Agreement and related
documents on behalf of Borrower and Obligor, and (iii) such other
statements, certificates, documents, amendments and information with
respect to the matters contemplated by this Agreement and the Loan
Documents as Lender may reasonably request.
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6. Covenants of Borrower and Obligor. In consideration for
Lender's agreement to enter into this Agreement, Borrower and Obligor covenant
and agree that:
a. Borrower and Obligor shall comply with the terms and
conditions of this Agreement and shall make commercially reasonable
efforts to continue to comply with all of their obligations under the
Loan Documents, as modified by this Agreement.
b. Borrower shall pay all of the costs and expenses
reasonably incurred by Lender in connection with the preparation of
this Agreement and all documents delivered in connection herewith,
including the costs and expenses of counsel to Lender.
c. Borrower and Obligor shall from time to time at their
expense execute such additional documents as are reasonably requested
by Lender (and Fokus Bank ASA, to whom Lender has assigned the Note
and related security documents as collateral for a loan made by Fokus
Bank ASA to Lender) to protect Lender's and Fokus Bank ASA's interest
in all collateral, whether now held or hereafter acquired.
7. Waiver of Defenses. Borrower and Obligor hereby waive and
release any and all defenses they may have with respect to any of the Loan
Documents or any obligations owing thereunder based on or otherwise relating to
any events or circumstances which occurred or existed on or prior to the date
hereof, and hereby release and forever discharge Lender, and its officers,
directors, fiduciaries, agents and employees, from every claim, demand or cause
of action whatsoever, of every kind and nature, whether presently known or
unknown, suspected or unsuspected, arising or alleged to have arisen or which
shall arise hereafter from any act, omission or condition which occurred or
existed on or prior to the Effective Date. Borrower and Obligor expressly waive
any right to setoff any claim, if any, against Lender against any sum owed or
to be owed by Borrower or Obligor under any Loan Document.
8. Representations and Warranties of Borrower and Obligor.
a. Borrower and Obligor acknowledge that the concepts
embodied in this Agreement have been independently negotiated with
Lender by each of Borrower and Obligor, at all times represented by
counsel of Borrower's and Obligor's own choosing, and that this
Agreement is satisfactory to and in the best interests of Borrower and
Obligor, and that Borrower and Obligor have actively requested that
Lender enter into this Agreement.
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b. Borrower and Obligor hereby represent and warrant
that the execution, delivery and performance of this Agreement have
been duly authorized, and that when executed and delivered by Borrower
and Obligor this Agreement shall constitute a valid and binding
obligation of Borrower and Obligor, enforceable against them in
accordance with its terms, except as the enforceability thereof may be
affected by bankruptcy, insolvency, moratorium, fraudulent transfer
and other similar laws affecting the rights and remedies of creditors
generally.
c. Borrower and Obligor hereby further represent and
warrant that their respective partnership agreements, as well as the
articles of incorporation and bylaws of their respective general
partners, have not been amended or modified since the date the Loan
Agreement was signed.
9. Loan Documents Remain in Effect; References to Loan Documents.
Except as expressly amended by this Agreement, the Loan Agreement, Note, and
Security Documents shall remain in full force and effect. Lender, Borrower,
and Obligor agree that all references to the Loan Agreement in any of the Loan
Documents or any other agreements between Lender and Borrower shall mean the
Loan Agreement as amended by this Agreement.
10. Miscellaneous.
a. Modification. This Agreement may not be modified in
any manner except by written agreement signed by all of the parties
hereto.
b. No Waiver. No course of dealings heretofore or
hereafter among Borrower, Obligor and Lender or any failure on the
part of Lender in exercising any rights or remedies under this
Agreement or any existing by law shall operate as a waiver of any
right or remedy of Lender with respect to any obligations owed to it,
and no single or partial exercise of any right or remedy hereunder
shall operate as a waiver or a preclusion to the exercise of any other
rights or remedies that Lender may have under any other document.
c. Severability. Whenever possible, each provision of
this Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or under applicable law, such
provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision and
the remaining provisions of this Agreement.
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d. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York,
excluding its conflict of law rules.
e. Agents, Successors, and Assigns. This Agreement shall
be binding upon and inure to the benefit of the parties and their
agents, successors and assigns.
f. Counterparts. This Agreement may be executed in any
number of counterparts and shall be a valid and binding agreement when
all parties execute the original or a counterpart.
EXECUTED as of the date set forth above.
BORROWER: VMIF/ANDEN WAYSIDE VENTURE, an Illinois
general partnership
By: LPI WAYSIDE L.P., an Illinois
limited partnership, general
partner
By: LPI WAYSIDE CORP., an
Illinois corporation, general
partner
By: _________________________
Printed Name: _______________
Title: ______________________
By: LPI WAYSIDE CORP., an
Illinois corporation, general
partner
By: ______________________________
Printed Name: ____________________
Title: ___________________________
Address:
c/o Legend Properties, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
OBLIGOR: VMIF/ANDEN SOUTHBRIDGE VENTURE, an
Illinois general partnership
By: LPI SOUTHBRIDGE L.P., an Illinois
limited partnership, general
partner
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By: LPI SOUTHBRIDGE CORP., a
Delaware corporation, general
partner
By: _________________________
Printed Name: _______________
Title: ______________________
By: LPI SOUTHBRIDGE CORP., a Delaware
corporation, general partner
By: _____________________________
Printed Name: ____________________
Title: ___________________________
Address:
c/o Legend Properties, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
LENDER: RGI HOLDINGS, INC., a Washington
corporation
By: ___________________________________
Printed Name: _________________________
Title: ________________________________
Address:
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Telephone: 000-000-0000
Telecopy: 000-000-0000
With a copy to:
Xxxxx Xxxxxx Xxxxxxxx
0000 Xxxxxx Xxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
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EXHIBIT A
Amounts owed by Borrower as of December 31, 1996:
Principal balance as of 12/31/96: $6,391,084
Accrued interest as of 12/31/96: $619,803
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