FOURTH AMENDMENT TO LOAN DOCUMENTS
THIS FOURTH AMENDMENT TO LOAN DOCUMENTS (the "Fourth Amendment") is
entered into as of the 1st day of August, 1995, by and between ▇▇▇/▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ASSOCIATES, LTD., an Illinois limited partnership (formerly known as
▇▇▇/▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Associates) (the "Borrower") and JMB REALTY
CORPORATION, a Delaware corporation ("JMB").
R E C I T A L S
A. Bank of America Illinois ( successor to Continental Bank N.A.
and formerly known as Continental Illinois National Bank and Trust Company
of Chicago) (the "Bank") has heretofore made to Borrower two loans (the
"Term Loans") in the amounts of Fifteen Million and No/100 Dollars
("$15,000,000 Term Loan") and Thirty-Five Million and No/100 Dollars (the
"$35,000,000 Term Loan"), respectively, which Term Loans were evidenced by:
(i) a certain Promissory Note dated as of December 29, 1983 in the original
principal amount of Fifteen Million and No/100 Dollars ($15,000,000)
(herein, said Promissory Note, as amended, is called the "$15,000,000
Note") and (ii) a certain Promissory Note dated as of December 39, 1983 in
the original principal amount of Thirty-Five Million and No/100 Dollars
($35,000,000) (herein, said Promissory Note, as amended, is called the
"$35,000,000 Note").
B. The $15,000,000 Note was secured by a certain Security
Agreement between Borrower and the Bank, dated as of December 29, 1983,
relating to the $15,000,000 Note (herein, said Security Agreement is called
the "$15,000,000 Security Agreement"). The $35,000,000 Note was secured by
a certain Security Agreement between Borrower and the Bank, dated as of
December 29, 1983, relating to the $35,000,000 Note (herein, said Security
Agreement is called the "$35,000,000 Security Agreement"). The Borrower
and the Bank have heretofore entered into separate First Amended and
Restated Security Agreements dated as of December 29, 1983, which amend and
restate, respectively, the $15,000,000 Security Agreement and the
$35,000,000 Security Agreement, (herein, said First Amended and Restated
Security Agreements are collectively called the "First Restated Security
Agreements").
C. To secure the $15,000,000 Note, JMB, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇, and the 1975 ▇▇▇▇ ▇. ▇▇▇▇▇▇ Life Insurance Trust (collectively, the
"Previous Guarantors") executed and delivered to the Bank a certain
Guaranty of Payment, dated as of December 29, 1983, relating to the
$15,000,000 Note (herein, said Guaranty, as heretofore amended, is called
the "$15,000,000 Guaranty"). To secure the $35,000,000 Note, the Previous
Guarantors executed and delivered to the Bank (i) a certain Guaranty of
Payment relating to the $35,000,000 Note, and (ii) a certain Guaranty of
Interest relating to the $35,000,000 Note, which Guaranty of Interest was
supplemented by a certain letter agreement between the Bank and Previous
Guarantors (respecting net cash flow), all dated as of December 29, 1983
(herein the Guaranties described in the preceding sentence of this
paragraph, as heretofore amended, are collectively called the "$35,000,000
Guaranties"). In addition to the $35,000,000 Guaranties, Borrower
heretofore executed and delivered to the Bank a letter agreement dated as
of April 15, 1991 and JMB heretofore executed and delivered to the Bank an
additional Guaranty of Payment, dated as of April 15, 1991, relating to the
$35,000,000 Note (herein, the "$10,000,000 Guaranty" and, herein, said
letter agreement is called the "Original Letter Agreement") (herein, said
$15,000,000 Guaranty, said $35,000,000 Guaranties, and the $10,000,000
Guaranty are collectively called the "Pre-Existing Guaranties").
D. The Bank and Borrower also entered into a certain Consent
Agreement dated as of December 29, 1983, relating to the Term Loans
(herein, such Consent Agreement, as heretofore amended, is called the
"Consent Agreement").
E. The Bank and Borrower have heretofore entered into a certain
First Amendment to Notes, Loan Documents and Guaranties (herein, the "First
Amendment") relating to the $15,000,000 Note, the $35,000,000 Note, the
Original Letter Agreement, the $15,000,000 Guaranty, the $35,000,000
Guaranties, the $15,000,000 Security Agreement and the $35,000,000 Security
Agreement.
F. The Bank and Borrower heretofore entered into a Second
Amendment to the $15,000,000 Loan Documents and $35,000,000 Loan Documents
dated as of July 10, 1984 to reflect changes in the Borrower's name and
general partner and to make certain amendments to such documents as of that
date (herein, the "Second Amendment").
G. The Bank and Borrower have heretofore entered into a certain
Interest Exchange Agreement dated February 1, 1984 (herein, as amended, the
"Interest Exchange Agreement").
H. The $15,000,000 Note, the $15,000,000 Guaranty, and any other
documents or instruments evidencing, securing, or related to the
$15,000,000 Term Loan (except the $15,000,000 Security Agreement and the
First Restated Security Agreement relating thereto), as heretofore amended,
are herein collectively called the "$15,000,000 Term Loan Documents". The
$35,000,000 Note, the $35,000,000 Guaranties, the Original Letter
Agreement, and any other documents or instruments evidencing, securing or
related to the $35,000,000 Term Loan (except the $35,000,000 Security
Agreement and the First Restated Security Agreement relating thereto), as
heretofore amended, are herein collectively called the "$35,000,000 Term
Loan Documents" and together with the $15,000,000 Term Loan Documents, the
$35,000,000 Term Loan Documents, the Consent Agreement, the First Amendment
and the Second Amendment are herein collectively called the "Pre-Existing
Loan Documents."
J. The Bank, the Borrower and JMB entered into that certain Third
Amendment to Loan Documents dated as of December 31, 1993 pursuant to which
(i) the $15,000,000 Note and the $35,000,000 Note were amended and restated
to provide for two Amended and Restated Promissory Notes, each in the
principal amount of $25,000,000, and referred to as the Guaranteed Amended
and Restated Promissory Note (the "Guaranteed Note") and the Fixed Rate
Amended and Restated Promissory Note (the "Fixed Rate Note"), respectively,
(ii) the First Restated Security Agreements were amended and restated
pursuant to Second Amended and Restated Security Agreements, (iii) the
Borrower executed and delivered to the Bank an Interest Exchange Agreement
Promissory Note in the original principal amount of $2,194,631.25 to
evidence the indebtedness of Borrower to the Bank under the Interest
Exchange Agreement (the "Interest Exchange Agreement Note") and an Interest
Exchange Agreement Note Security Agreement to secure such Interest Exchange
Agreement Note, and (iv) JMB executed and delivered to the Bank an Amended
and Restated Guaranty of Payment (the "JMB Guaranty") consolidating and
superseding the $15,000,000 Guaranty and the $10,000,000 Guaranty.
K. JMB has from time to time made advances to the Borrower to
enable the Borrower to pay interest and principal under the Guaranteed Note
and certain other expenses and expects to make additional advances to pay
other expenses, and the obligation of the Borrower to repay such advances
is evidenced by that certain Subordinated Demand Note dated December 31,
1993 made payable by the Borrower in favor of JMB, providing for the
maximum outstanding principal amount of $40,000,000 (the "JMB Note").
L. On July 31, 1995, the Bank, Mellon Bank, N.A. ("Mellon") and
JMB entered into a letter agreement ("Letter Agreement") pursuant to which
the Bank and Mellon have sold, and JMB has purchased, all of the Bank's and
Mellon's respective right, title and interest in the Guaranteed Note, the
Fixed Rate Note and the Interest Exchange Agreement Note (collectively, the
"Notes") and the Second Amended and Restated Security Agreements and the
Interest Exchange Agreement Note Security Agreement (collectively, the
"Security Agreements") and the JMB Guaranty and other Related Agreements
defined in the Letter Agreement (the Notes, the Security Agreements, the
JMB Guaranty and the other Related Agreements collectively, the "Loan
Documents").
M. The parties desire to enter into this amendment to amend and
restate in part and otherwise reaffirm, to the extent set forth herein, the
Loan Documents.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and in consideration of the various agreements set out
herein, the parties do hereby agree as follows:
1. The foregoing Recitals are hereby incorporated into this Fourth
Amendment as though set out in their entirety in the body hereof.
2. As a condition precedent to the effectiveness of this Fourth
Amendment, Borrower shall execute and deliver in a form acceptable to JMB
the following:
a. A Second Amended And Restated Promissory Note (the
"Restated Promissory Note I") in the principal amount of $16,042,000; and
b. A Second Amended and Restated Promissory Note (the
"Restated Promissory Note II") in the principal amount of $25,000,000; and
c. An Amended and Restated Promissory Note (the "Restated
Promissory Note III") in the principal amount of $2,194,631.25; and
d. An Amended and Restated Demand Note (the "Restated JMB
Note") in the maximum principal amount of $40,000,000; and
e. A Third Amended and Restated Security Agreement (the
"Third Amended and Restated Security Agreement") to secure the payment and
performance of the Restated Promissory Note I, the Restated Promissory Note
II, the Restated Promissory Note III and the Restated JMB Note; and
f. Supporting documentation deemed reasonably necessary by
JMB; and
g. Payment of all costs and expenses of JMB in connection
with this Fourth Amendment and the transactions and documentation
contemplated herein.
3. All references in the Loan Documents to documents amended in
connection herewith shall henceforth refer to such documents as amended to
date and as amended, modified or restated from time to time. Except as
amended hereby or by the documents executed and delivered by Borrower to
JMB pursuant to paragraph 2 of this Fourth Amendment, all of the terms,
conditions, provisions, and agreements set forth in the Loan Documents,
excluding the Original Letter Agreement and the JMB Guaranty, are hereby
reaffirmed, ratified, and confirmed in their entirety.
4. Each of the Original Letter Agreement and the JMB Guaranty is
hereby terminated and released and shall be of no further force and effect.
5. JMB shall be deemed to be substituted as a party to the Consent
Agreement in place of the Bank. All duties and responsibilities of
Borrower owed to the Bank, and all rights and remedies of the Bank with
respect to Borrower, under the Consent Agreement shall henceforth be given
to, or may be exercised by, JMB (as the case may be) under the Consent
Agreement. The references in the first paragraph on page 3 of the Consent
Agreement to the "Notes" are hereby changed to mean collectively the
Restated Promissory Note I, the Restated Promissory Note II, the Restated
Promissory Note III and the Restated JMB Note, and the references in such
paragraph of the Consent Agreement to clause (iii) of Section 8 of each of
the Security Agreements are hereby changed to refer to clause (ii) of
Section 8 of the Third Amended and Restated Security Agreement. The third
paragraph on page 3 of the Consent Agreement is hereby deleted in its
entirety, and there is substituted in its place the following:
"All notices and consents under this Consent Agreement shall be
in writing and shall have been deemed to have been given when delivered
personally or on the second business day following the day when deposited
in the United States mail, postage prepaid, addressed to JMB at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, to the attention of
H. ▇▇▇▇▇ ▇▇▇▇▇▇, and addressed to the Borrower at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, to the attention of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇."
6. Borrower acknowledges JMB's right to obtain a new appraisal (or
update of an existing appraisal) of the real estate at any time while the
loan or any portion thereof remains outstanding, (a) when, in JMB's
reasonable judgment, such an appraisal is warranted as a result of JMB's
internal evaluation of the subject loan, and/or (b) to comply with
statutes, rules, regulations, or directives of governmental agencies having
jurisdiction over JMB. Borrower hereby agrees to pay, upon demand, all
appraisers' fees and related expenses incurred by JMB from time to time in
obtaining appraisal reports.
7. To induce JMB to enter into this Fourth Amendment, Borrower
warrants to JMB that:
(i) Authorization: No Conflict. The execution and delivery
of this Fourth Amendment, and the performance by the Borrower of its
obligations under this Fourth Amendment, are within Borrower's partnership
powers, have been duly authorized by all necessary partnership, corporate,
or other action, have received all necessary governmental approval (if any
shall be required) and do not and will not contravene or conflict with any
provisions of law or the partnership agreement of Borrower or of any
agreement binding upon Borrower.
(ii) Validity and Binding Nature. This Fourth Amendment is
the legal, valid and binding obligation of Borrower enforceable against
Borrower in accordance with its terms.
8. This Fourth Amendment shall be governed by and construed under
the laws of the State of Illinois.
9. Notwithstanding anything herein contained to the contrary, JMB
agrees (for itself and its successors and assigns) that (1) all liability
hereunder or with respect to the debt evidenced or secured by the documents
executed and delivered by Borrower in connection herewith shall be
satisfied only out of the assets of Borrower and that no present or future
constituent partner (i.e., person holding an equity interest) in or any
agent of the Borrower, nor any officer, shareholder, director, employee,
trustee, beneficiary or agent of any corporation or trust that is or
becomes a constituent partner in Borrower (including, but not limited to,
persons executing documents or certificates on behalf of Borrower) shall
have personal liability (directly or indirectly), all such personal
liability being expressly waived by JMB, and (2) in no event shall a
negative capital account or any other funding obligations of any
constituent partner in Borrower be deemed to be an asset or the property of
Borrower and neither JMB nor any subsequent holder of this document shall
have any right to collect, enforce or proceed against or with respect to
any such negative capital account or partner's obligation.
IN WITNESS WHEREOF, the parties have executed this Fourth Amendment
at Chicago, Illinois as of the day and year above written.
BORROWER
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ JMB/245 Park Avenue Associates,
Suite 1900 Ltd., an Illinois limited
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ partnership
By: JMB Park Avenue, Inc.
Its Corporate General Partner
By: ___________________________
Name:___________________________
Title:__________________________
JMB
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ JMB REALTY CORPORATION
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By: ___________________________
Name:___________________________
Title:__________________________
122615.04
