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EXHIBIT 10(t)
THIS DOCUMENT PREPARED BY AND
WHEN RECORDED MAIL TO:
Xxxxxxxxx X. Xxxxx III, Esq.
Xxxxxx Xxxxxx & Zavis
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
(Xxxx County, Illinois)
(Space above this line for Recorder's use)
FIRST MODIFICATION OF REVOLVING LOAN AGREEMENT, NOTE, INDENTURE OF MORTGAGE,
DEED OF TRUST, DEED TO SECURE DEBT, SECURITY AGREEMENT, FINANCING STATEMENT,
FIXTURE FILING AND ASSIGNMENT OF RENTS AND LEASES, AND OTHER LOAN
DOCUMENTS, PARTIAL RELEASE AND SPREADER AGREEMENT
THIS FIRST MODIFICATION OF REVOLVING LOAN AGREEMENT, NOTE, INDENTURE OF
MORTGAGE, DEED OF TRUST, DEED TO SECURE DEBT, SECURITY AGREEMENT, FINANCING
STATEMENT, FIXTURE FILING AND ASSIGNMENT OF RENTS AND LEASES, AND OTHER LOAN
DOCUMENTS, PARTIAL RELEASE AND SPREADER AGREEMENT (this "MODIFICATION") is made
as of the 21st day of December, 1999, and shall be deemed effective as of the
24th day of November, 1999, is made by and among XXXXX REVOLVER, INC., a
Michigan corporation (the "COMPANY"), XXXXX REALTY INVESTORS, INC., a Michigan
corporation ("PARENT", and together with Company, hereinafter sometimes referred
to as the "BORROWER"), and GREENWICH CAPITAL MARKETS, INC., a Delaware
corporation (together with its successors and assigns, hereinafter referred to
as the "LENDER").
WHEREAS, Borrower has previously requested the Loans from Lender;
WHEREAS, in connection with the Loans, Borrower and Lender entered into
and executed that certain Revolving Loan Agreement dated as of November 24, 1997
(the "CREDIT AGREEMENT"), pursuant to which Lender agreed to make the Loans to
Borrower. ALL CAPITALIZED TERMS USED BUT NOT OTHERWISE DEFINED HEREIN SHALL HAVE
THE MEANINGS ASCRIBED THERETO IN THE CREDIT AGREEMENT, AS MODIFIED HEREBY;
WHEREAS, Borrower has previously executed and delivered to Lender that
certain Note dated November 24, 1997 made by Borrower to the order of Lender, in
the original principal amount of up to Fifty Million and No/100ths Dollars
($50,000,000.00), together with all future advances, extensions, renewals,
substitutions, modifications and amendments thereof (sometimes, herein, the
"EXISTING NOTE");
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WHEREAS, repayment of the Existing Note is secured by, inter alia, that
certain Indenture of Mortgage, Deed of Trust, Deed to Secure Debt, Security
Agreement, Financing Statement, Fixture Filing and Assignment of Rents and
Leases dated as of November 24, 1997 by Company in favor of, or for the benefit
of, Lender, original counterparts of which were recorded in the jurisdictions
and under the filing numbers set forth in SCHEDULE A attached hereto, each
constituting a first priority lien on the Collateral Properties as collateral
for the Loan (sometimes referred to herein as the "MORTGAGE"), encumbering each
of the Collateral Properties set forth on MORTGAGE EXHIBITS A-1 through A-16
attached hereto and made a part hereof;
WHEREAS, repayment of the Existing Note is further secured by that
certain Assignment of Leases, Rents and Security Deposits dated as of November
24, 1997 by Company, in favor of Lender, original counterparts of which were
recorded in the jurisdictions and under the filing numbers set forth in SCHEDULE
B attached hereto (sometimes referred to herein as the "ASSIGNMENT OF RENTS AND
LEASES");
WHEREAS, repayment of the Existing Note is further secured by first
priority liens on, and security interests in, certain collateral more
particularly described in those certain UCC Financing Statements naming Company
as debtor and Lender as secured party, which were filed in the jurisdictions and
under the filing numbers set forth in SCHEDULE C attached hereto (sometimes
referred to herein as the "FINANCING STATEMENTS");
WHEREAS, in connection with the Loans made to Borrower pursuant to the
Existing Note, Lender required that each of Company and Parent execute and
deliver a certain Environmental Health and Safety Indemnity Agreement dated as
of November 24, 1997 (the "ENVIRONMENTAL INDEMNITY"), pursuant to which each of
Company and Parent, jointly and severally, agreed to indemnify Lender and the
other "Indemnified Parties" (as defined therein) with respect to hazardous
wastes on, in, under or affecting the Original Collateral Properties;
WHEREAS, the Credit Agreement, the Existing Note, the Mortgage, the
Assignment of Rents and Leases, the Financing Statements, the Environmental
Indemnity, and all other documents and instruments now or heretofore evidencing
or securing repayment of the Obligations, or any portion thereof, evidenced by
the Existing Note are hereinafter collectively referred to as the "LOAN
DOCUMENTS"; and
WHEREAS, Borrower has requested that Lender modify the Credit Agreement
and the other Loan Documents to (I) decrease the Maximum Commitment from Fifty
Million and No/100ths Dollars ($50,000,000) to Twenty-Five Million and No/100ths
Dollars ($25,000,000), (II) extend the Revolver Termination Date; (III) release
certain of the Original Collateral Properties identified in MORTGAGE EXHIBITS
A-2 and A-4 attached hereto and made a part hereof from the Lien of the Mortgage
and the other Loan Documents; (IV) accept certain new Collateral Properties
identified in MORTGAGE EXHIBITS A-17 and A-18 attached hereto and made a part
hereof as additional collateral security for the Loans (the "MODIFICATION
COLLATERAL PROPERTIES"); and (V) to modify certain defined terms, and Lender has
so agreed, subject to adjusting the Base
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Rate and the Euro-Dollar Margin, and on the other terms and conditions more
specifically set forth herein.
NOW, THEREFORE, for and in consideration of the foregoing premises and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Borrower and Lender do hereby agree as follows:
A. INCORPORATION OF PREAMBLES/REPRESENTATION AND WARRANTIES
1. The preambles to this Modification are fully incorporated herein by
this reference thereto with the same force and effect as though restated herein.
2. There has been no material adverse change in the representations
made or information heretofore supplied by or on behalf of Company or Parent to
Lender as to (I) the composition, structure, finances, business operations,
credit prospects or financial condition of Borrower, Parent, or any tenant under
any lease or tenancy of space in the Original Collateral Properties or the
Modification Collateral Properties; (II) the rental income, condition, or
ownership of the Original Collateral Properties or the Modification Collateral
Properties; and (iii) all other features of the transaction, other than any
changes which have been previously disclosed in writing to, and approved by
Lender.
3. Each of Company and Parent, jointly and severally, hereby represents
and warrants to Lender that all of the representations and warranties in each of
the Loan Documents, both before and after giving effect to the amendments and
modifications thereto in this Modification, are true, correct and complete on
the date hereof (the "MODIFICATION DATE"), with the same force and effect as if
made on such date, except to the extent the same may have been previously
modified with the prior written consent of Lender.
4. Each of Company and Parent hereby further represents and warrants
that (I) no Event of Default exists under the Credit Agreement, the Existing
Note or the Loan Documents, as such documents or instruments may be modified by
this Modification, nor does any fact, matter, circumstance or occurrence exist
which, with the passage of time or the giving of notice, or both, would
constitute an Event of Default, (II) neither Company nor Parent has any defense,
offset or counterclaim with respect to the payment of any sum owed to Lender
pursuant to, or with respect to any covenant in, the Loan Documents, (III)
Company and Parent have paid or caused to be paid, all fees due Lender under the
Credit Agreement, the Existing Note and the Loan Documents as of the
Modification Date, including, without limitation, the Commitment Fee set forth
in SECTION 2.8(B) of the Credit Agreement, (IV) Lender, on and as of the
Modification Date, has fully performed all obligations to each of Company and
Parent, as applicable, which it may have had or has on and as of the
Modification Date, and neither Company nor Parent has any knowledge of any
default by Lender under the terms and provisions of the Credit Agreement, the
Existing Note or the Loan Documents, as such documents or instruments may be
modified by this Modification, and (V) other than as expressly set forth herein,
by entering into this Modification, Lender does not waive any condition or
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obligation in the Loan Documents.
5. All references in the Mortgage, the Assignment of Rents and Leases,
the Environmental Indemnity, and all other Loan Documents to the "Agreement" or
the "Loan Agreement" are hereby deemed to be referenced to the Credit Agreement,
as modified by this Modification.
6. In the event of any conflict among the terms of the Credit Agreement
and the other Loan Documents as modified by this Modification, the terms of the
Credit Agreement as modified by this Modification shall govern and control. All
terms and provisions of the Loan Documents corresponding to terms and provisions
of the Credit Agreement prior to the date of this Modification shall be deemed
modified in accordance with the terms of this Modification.
B. MODIFICATION OF CREDIT AGREEMENT
1. Effective as of the Modification Date, the Credit Agreement is
modified as follows:
(A) In SECTION 1.1 of the Credit Agreement, the definitions of
"Aggregate Debt Service," "Agreement," "Assignment of Rents and Lease,"
"Base Rate," "Borrowing Base," "Closing Date," "Commitment,"
"Environmental Indemnity," "Loan Documents," "Maximum Commitment,"
"Mortgage," "Net Operating Income," "Note," "Original Collateral
Property," and "Revolver Termination Date" are deleted in their
entirety and the following definitions are substituted in their place
and stead:
AGGREGATE DEBT SERVICE means, for any period, the amount
determined by applying a twenty-five year mortgage
amortization schedule to the Loans outstanding as of the last
day of each fiscal quarter, using an annual interest rate
equal to the Treasury Rate plus two and one-half percent
(2.50%), determined on an annualized basis.
AGREEMENT means this Revolving Loan Agreement (including all
schedules, exhibits, annexes and appendices hereto), as
amended and modified by the Modification, together with all
future advances, extensions, renewals, substitutions,
modifications, supplements and amendments thereof.
ASSIGNMENT OF RENTS AND LEASES means the Assignment of Leases,
Rents and Security Deposits, dated as of November 24, 1997, by
and between Company, as assignor, and Lender, as assignee, as
amended by the Modification, as the same may be amended,
supplemented or otherwise modified from time to time.
BASE RATE means, for any day, a rate per annum equal to the
higher of (I) the Prime Rate for such day plus one percent
(1.00%), and (II) the sum of
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three and one-half percent (3.50%) plus the Federal Funds Rate
for such day.
BORROWING BASE shall mean the aggregate Allocated Loan Amounts
as of any date of determination, of all Collateral Properties,
as such amount shall be decreased in connection with each
Property Release by an amount equal to one hundred twenty-five
percent (125%) of the Allocated Loan Amount for the related
Release Property. CLOSING DATE means, as the context requires,
the Initial Closing Date, the Modification Effective Date and
each Property Closing Date.
COMMITMENT means an amount up to Twenty-Five Million and
No/100ths Dollars ($25,000,000.00).
ENVIRONMENTAL INDEMNITY means the Environmental Health and
Safety Indemnity Agreement dated as of November 24, 1997, made
jointly and severally by Company and Parent, as modified by
the Modification, together with all future advances,
extensions, renewals, substitutions, modifications,
supplements and amendments thereof.
LOAN DOCUMENTS means this Agreement, the Note, each Notice of
Advance, each Notice of Interest Rate Election, the
Environmental Indemnity, the Mortgage, the Assignment of Rents
and Leases, the SNDA/Estoppel Indemnity, the Undertaking and
the Manager's Consent and Subordination Agreement, as each may
have been amended by the Modification, together with all
future advances, extensions, renewals, substitutions,
modifications, supplements and amendments thereof.
MAXIMUM COMMITMENT means Twenty-Five Million and No/100ths
Dollars ($25,000,000.00).
MORTGAGE means the Indenture of Mortgage, Deed of Trust, Deed
to Secure Debt, Security Agreement, Financing Statement,
Fixture Filing and Assignment of Rents and Leases, dated as of
November 24, 1997 by Company as mortgagor and grantor, to and
for the benefit of Lender as mortgagee and beneficiary, and,
if applicable, the Trustee thereunder, as amended by the
Modification, together with all future advances, extensions,
renewals, substitutions, modifications, supplements and
amendments thereof, that encumbers Borrower's interest in each
of the Collateral Properties on a joint and several basis to
the full extent of the obligations of Borrower hereunder and
under the other Loan Documents.
NET OPERATING INCOME means, when used with respect to each
Collateral Property, for any trailing twelve month period, the
cash rents, receipts and other case revenues received or paid
to or for the benefit of the Company in the ordinary course
therefrom (other than (I) pre-paid rents and revenues, (II)
security deposits except to the extent applied in satisfaction
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of tenants' obligations for rent, (III) rents and revenues
attributed to tenants under Leases who are not occupying the
premises demised under such Leases and not open for business,
and (IV) non-recurring receipts or revenues), including
proceeds of rental interruption insurance, minus all expenses
paid or accrued related to the ownership, operation or
maintenance of such property, including but not limited to
taxes, assessments and the like, insurance, utilities,
property management fees, payroll costs, maintenance, repair
and landscaping expenses, marketing expenses, and general and
administrative expenses (including an appropriate allocation
for marketing and other expenses incurred in connection with
such property). Additionally, for purposes of determining Net
Operating Income, receipts from new tenants shall be
annualized for new tenants which are in occupancy and paying
rent for the applicable period. If a new tenant occupies and
is paying rent with respect to a space which was previously
occupied (a "REPLACEMENT TENANT"), by a former tenant (a
"FORMER TENANT") for a portion of an applicable period, Lender
shall include the annualized receipts from the Replacement
Tenant in the calculation of Net Operating Income for such
applicable period and shall exclude the annualized receipts of
the Former Tenant in such calculation. If a space is vacated
by a Former Tenant and no Replacement Tenant is in occupancy
and paying rent for such space, receipts relating to such
space will be excluded from the calculation of Net Operating
Income until a Replacement Tenant is in occupancy and paying
rent. With respect to Real Property Assets owned less than one
year by the Company, Parent or any Consolidated Subsidiary of
Parent, Net Operating Income shall be calculated by reference
to the trailing twelve month period as set forth above, if
reasonably possible, or, if not reasonably possible, by
annualizing such amounts based upon the actual amounts
generated during the previous fiscal quarter of the Company's,
Parent's or such Consolidated Subsidiary's ownership of such
Real Property Asset.
NOTE means the amended and restated promissory note of Company
and Parent, substantially in the form of EXHIBIT A hereto,
evidencing the joint and several obligation of Company and
Parent to repay the Loans.
ORIGINAL COLLATERAL PROPERTY means the parcels of real
property set forth on SCHEDULE 1 attached hereto and by this
reference made a part hereof, including, without limitation,
the Modification Collateral Properties, together with all
Improvements therein, now owned or leased by Company upon
which a Lien has been or is purported to be granted to Lender
under the Mortgage, as modified by the Modification.
REVOLVER TERMINATION DATE means November 24, 2001, or if the
Revolver Termination Date is extended by Lender pursuant to
SECTION 7.6 hereof, the date established by Lender; provided,
however, that if any such date is not a Euro-
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Dollar Business Day, the next succeeding Euro-Dollar Business
Day, unless such Euro-Dollar Business Day falls in another
calendar month, in which case the Revolver Termination Date
shall be the next preceding Euro-Dollar Business Day.
(B) In SECTION 1.1 of the Credit Agreement, the following new
definitions are added:
EXTENSION FEE has the meaning set forth in SECTION 2.8(F).
MODIFICATION means that certain First Modification of
Revolving Loan Agreement, Note, Indenture of Mortgage, Deed of
Trust, Deed to Secure Debt, Security Agreement, Financing
Statement, Fixture Filing and Assignment of Rents and Leases,
and Other Loan Documents, Partial Release and Spreader
Agreement dated as of December 21, 1999, but effective as of
November 24, 1999 by and between Borrower and Lender.
MODIFICATION COLLATERAL PROPERTY means the parcels of real
property identified as Lincoln, IL and Arkansas City, KS, set
forth on SCHEDULE 1 attached hereto and by this reference made
a part hereof, together with all Improvements therein, now
owned or leased by Company upon which the Lien of the
Mortgage, as modified by the Modification, has been spread.
MODIFICATION EFFECTIVE DATE means November 24, 1999.
SECONDARY MARKET TRANSACTION means any of (i) the sale,
assignment, or other transfer of all or any portion of the
Loan or the Loan Documents or any interest therein to one or
more investors, (ii) the sale, assignment, or other transfer
of one or more participation interests in the Loan or Loan
Documents to one or more investors, or (iii) the transfer or
deposit of all or any portion of the Loans or Loan Documents
to or with one or more trusts or other entities which may sell
certificates or other instruments to investors evidencing an
ownership interest in the assets of such trust or the right to
receive income or proceeds therefrom.
2. Effective as of the Modification Date, SECTION 2.1 (B) of the Credit
Agreement is hereby deleted in its entirety and the following is substituted in
its place and stead:
(B) BORROWING BASE. As of the Modification Date, the
Borrowing Base shall be the sum of the Allocated Loan Amounts
of the Original Collateral Properties; provided, however, that
in the case of the lease-up of the Original Collateral
Property commonly known as Xxxxxx Xxxx, XX, xxx Xxxxxxxx Xxxx,
XX, and the redevelopment and lease-up of the Original
Collateral Property commonly known as New Lenox, IL, the
Allocated Loan Amounts for each of such Original Collateral
Properties may be increased by Lender, in its sole discretion,
upon the delivery by Borrower of such written evidence of the
successful leasing and/or
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redevelopment and leasing of such Original Collateral
Properties as Lender may request, including, without
limitation, delivery of fully executed tenant leases,
pro-forma financial statements and other evidence relating to
the net cash flow generated by such Original Collateral
Properties (the "BORROWING BASE DELIVERIES"). Within thirty
(30) days following Lender's receipt of the Borrowing Base
Deliveries, Lender shall notify Borrower of the revised
Allocated Loan Amount for such Original Collateral Property
(determined by Lender in its sole and absolute discretion), or
of Lender's disapproval of the Borrowing Base Deliveries.
Borrower may increase the amount of the Borrowing Base, up to
the maximum amount of Twenty-Five Million and No/100ths
Dollars ($25,000,000.00), by providing Lender with Additional
Collateral Properties in accordance with and subject to the
terms and conditions of SECTION 3.2 and SECTION 3.3 hereof.
The Borrowing Base shall be reduced in connection with any
Property Release by an amount equal to one hundred twenty-five
percent (125%) of the Allocated Loan Amount for the related
Release Property.
3. Effective as of the Modification Date, SECTION 2.1(C) of the Credit
Agreement "Extension of Revolver Termination Date" is hereby deleted in its
entirety and inserted in its place and stead is the following:
Intentionally Omitted.
4. Effective as of the Modification Date, the definition of
"EURO-DOLLAR MARGIN" set forth in SECTION 2.7(B) of the Credit Agreement is
hereby deleted in its entirety and inserted in its place and stead is the
following:
Euro-Dollar Margin means two and one-half percent (2.50%).
5. Effective as of the Modification Date, SECTION 2.8(C) of the Credit
Agreement "Exit Fee" is hereby deleted in its entirety and inserted in its place
and stead is the following:
(C) EXIT FEE. In connection with any prepayment of the entire
amount of the Loans then outstanding and a related termination
of the Facility occurring at any time during the six (6) month
period prior to the Revolver Termination Date, Borrower shall
pay to Lender a non-refundable Exit Fee (the "EXIT FEE") equal
to one percent (1.00%) of the quotient obtained by dividing
(X) the sum of the average principal amount of the Loans
outstanding each month during the Revolving Period, as
determined each month by Lender, by (Y) the number of full
calendar months comprising the Revolving Period, after giving
effect to the early termination thereof by Borrower, but in no
event less than One Hundred Twenty-Five Thousand and No/100ths
Dollars ($125,000). The Exit Fee shall not be payable in
connection with any prepayment made by Borrower after the
Conversion Date.
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6. Effective as of the Modification Date, SECTION 2.8(D) of the Credit
Agreement "Additional Collateral Fee" is hereby deleted in its entirety and
inserted in its place and stead is the following:
(D) ADDITIONAL COLLATERAL FEE. On each Property Closing Date
(other than a Closing Date relating to a Substitute Property),
Borrower shall pay to Lender a non-refundable additional
Collateral Property fee (the "ADDITIONAL COLLATERAL FEE") in
the amount of one percent (1.00%) of the Allocated Loan Amount
for such Additional Collateral Property.
7. Effective as of the Modification Date, the following new SECTION
2.8(F) is hereby added following SECTION 2.8(E) of the Credit Agreement:
(F) EXTENSION FEE. In connection with the execution of the
Modification, Borrower shall pay to Lender an extension fee
equal to one percent (1.00%) of the Maximum Commitment, (i.e.,
Two Hundred Fifty-Thousand and No/100ths Dollars
($250,000.00)) (the "EXTENSION FEE").
8. Effective as of the Modification Date, the following new SECTION
3.1(B) is hereby added following SECTION 3.1(A) of the Credit Agreement:
(B) CONDITIONS PRECEDENT TO EFFECTIVENESS OF MODIFICATION. The
closing of the Modification shall occur upon receipt by Lender
of the following documents, each dated as of the Modification
Date (or dated as otherwise provided below), or a date
otherwise satisfactory to Lender, but effective as of the
Modification Date, and in each case satisfactory in form and
substance to Lender in its reasonable judgment:
(I) a duly executed Note for the account of Lender,
complying with the provisions of SECTION 2.5;
(II) duly executed and acknowledged counterparts of
the Modification;
(III) UCC-1 Financing Statements executed by Company,
as debtor, naming Lender as secured party, in form appropriate
for filing in the appropriate jurisdictions as is necessary to
create perfected security interests in all of the Collateral
with respect to the Modification Collateral Properties, with
respect to which security interests are governed by the UCC;
(IV) satisfactory reports of UCC filing, tax lien and
judgment searches conducted by a search firm acceptable to
Lender with respect to each Original Collateral Property,
Company and Parent, such searches to be conducted in each of
the locations specified by Lender;
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(V) certificates of insurance with respect to each
Original Collateral Property demonstrating the coverages
required by the Mortgage and issued by insurance companies
meeting Rating Agency Requirements;
(VI) with respect to each Modification Collateral
Property, a Survey;
(VII) with respect to each Modification Collateral
Property, a market study in form and substance acceptable to
Lender, and with respect to each other Original Collateral
Property, a market comparison/study prepared by Lender in form
and substance satisfactory to Lender;
(VIII) with respect to each Modification Collateral
Property, a "Phase I" environmental report in form and
substance satisfactory to Lender in all respects, and with
respect to each other Original Collateral Property, such
database and other searches and reports in form and substance
satisfactory to Lender in all respects;
(IX) with respect to each Modification Collateral
Property, Compliance Evidence;
(X) with respect to each Original Collateral
Property, (A) property level operating statements and
historical cash flows for 1998 through September, 1999,
certified by an authorized officer of Borrower, (B) a
certified current rent roll, (C) a budget for Capital
Expenditures for calendar years 2000 and 2001, and (D) cash
flow projections for a two (2) year period;
(XI) the certificate to be provided by Borrower
pursuant to SECTION 5.1(c);
(XII) an opinion of Miro, Weiner & Xxxxxx, counsel
for Company and Parent, with respect to such matters as Lender
shall require, including, without limitation, opinions with
respect to the due formation and authority of Company and
Parent, the due and valid execution and delivery of the
Modification and all documents and instruments delivered in
connection therewith, and the enforceability of the
Modification and all documents and instruments delivered in
connection therewith;
(XIII) an updated opinion or opinions of Miro, Weiner
& Xxxxxx, counsel for Company and Parent, (A) to the effect
that if Company or its sole shareholder were a debtor under
the bankruptcy laws of the United States, a court would not
have valid legal grounds to cause Company or its sole
shareholder to be substantively consolidated with any other
Person, and (B) covering such additional matters as Lender may
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reasonably require;
(XIV) an opinion of local counsel in each
jurisdiction in which each Original Collateral Property is
located as to the enforceability of the Modification and all
documents and instruments delivered in connection therewith,
and such other matters as Lender may request, all in form and
substance satisfactory to Lender;
(XV) all documents that Lender may reasonably request
relating to the existence and qualification to do business of
Company and Parent, the corporate authority for and the
validity of the Modification and the continuing validity of
the Credit Agreement, the Note and the other Loan Documents,
or relating to any Collateral, and any other matters relevant
in connection with any Loan Document, all in form and
substance satisfactory to Lender;
(XVI) copies of all Leases with respect to the
Modification Collateral Property and copies of all Leases with
respect to the other Original Collateral Property to the
extent that the same were not delivered or in existence as of
the Initial Closing Date, all accompanied by an Officer's
Certificate that such Leases are true, correct and complete in
all material respects;
(XVII) estoppel certificates in form and substance
satisfactory to Lender from (A) each Major Tenant at each of
the Modification Collateral Properties and each new Major
Tenant at each of the other Original Collateral Properties
requested by Lender, each in the form attached to the Credit
Agreement as EXHIBIT F, (B) each ground lessor at any
Collateral Property which is held pursuant to a Ground Lease,
and (C) each party to any reciprocal easement agreement or
similar property operating agreement with respect to any
Modification Collateral Property, provided that, to the extent
that Borrower, using its best efforts, shall be unable to
obtain any such reciprocal easement agreement estoppel
certificate, Borrower shall (Y) furnish Lender with such
representations, warranties and indemnifications as Lender may
determine to be appropriate in its sole discretion in light of
the absence of such estoppel certificate, and (Z) continue to
use its best efforts to obtain and deliver promptly to Lender
an estoppel certificate in form and substance reasonably
satisfactory to Lender covering the matters for which an
estoppel certificate was unavailable at the Modification Date,
and in the event that Borrower shall so deliver such an
estoppel certificate, Borrower shall be released from the
representations, warranties and/or indemnifications given at
the Modification Date with respect to the matters covered
thereby;
(XVIII) a subordination, non-disturbance and
attornment agreement substantially in the form of EXHIBIT G to
the Credit Agreement from each
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Major Tenant at the Modification Collateral Properties and
each new Major Tenant at each of the other Original Collateral
Properties;
(XIX) the payment by Borrower to Lender of (A) the
Extension Fee, and (B) all out-of-pocket expenses of Lender,
including, without limitation, the fees and expenses of
Lender's counsel;
(XX) the payment by Borrower of any title insurance
premiums, escrow charges, mortgage recording taxes and
recording fees;
(XI) written instructions to the Title Company
authorizing the recordation of the Modification, the Financing
Statements and other recorded documents;
(XXII) an Undertaking; and
(XXIII) amendments, modifications, supplements and/or
date-down or other additional endorsements to the Title
Policies requested by Lender for each of the Original
Collateral Properties, reflecting the addition of the
Modification Collateral Property.
9. Effective as of the Modification Date, the following new SECTION
5.1(L) is hereby added following SECTION 5.1(K) of the Credit Agreement:
(k) within ten (10) Business Days after any executive officer
of the Company or Parent (including, without limitation, any
president, vice president or chief financial officer) receives
any notice or notification, whether written or oral, from any
Major Tenant required or permitted under its lease of any of
the Collateral Properties, including, without limitation, any
notice of default, termination, cancellation, intent to vacate
or surrender, an Officer's Certificate setting forth the
details thereof, and a copy of such notice or notification in
the event such notice or notification is in writing.
10. Effective as of the Modification Date, the following new SECTION
9.15 is hereby added following SECTION 9.14 of the Credit Agreement:
9.15. STATUTORY NOTICES. The following notices are hereby
provided in accordance with applicable local law:
a. MISSOURI. The following notice is included in
compliance with R.S. Mo. ss.432.045;
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND
CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A
DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT
ARE
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NOT ENFORCEABLE. TO PROTECT YOU (BORROWER) AND US
(LENDER) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS WE REACH COVERING SUCH MATTERS ARE
CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US,
EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
b. KANSAS. The following provisions are included in
compliance with K.S.A. Sections 16-117 and 16-118.
THIS WRITTEN AGREEMENT IS THE FINAL EXPRESSION OF THE
LOAN AGREEMENT BETWEEN BORROWER AND LENDER AND MAY
NOT BE CONTRADICTED BY EVIDENCE OR ANY PRIOR OR
CONTEMPORANEOUS ORAL AGREEMENT BETWEEN BORROWER AND
LENDER. THE FOLLOWING SPACE (WHICH BORROWER AND
LENDER AGREE IS SUFFICIENT SPACE) IS PROVIDED FOR THE
PLACEMENT OF NONSTANDARD TERMS, IF ANY (IF THERE ARE
NO NONSTANDARD TERMS TO BE ADDED, STATE "NONE"): NONE
BORROWER AND LENDER HEREBY AFFIRM THAT THERE IS NO
UNWRITTEN ORAL AGREEMENT BETWEEN BORROWER AND LENDER
WITH RESPECT TO THE SUBJECT MATTER OF THIS WRITTEN
AGREEMENT.
11. Effective as of the Modification Date, the following new SECTION
9.16 is hereby added following SECTION 9.15 of the Credit Agreement:
9.16 SECONDARY MARKET TRANSACTIONS/SECURITIZATIONS.
(A) SECONDARY MARKET TRANSACTIONS GENERALLY. Lender
shall have the right to engage in one or more Secondary Market
Transactions, and to structure and restructure all or any part
of the Loans, including without limitation in multiple
tranches, as a wraparound loan, or for inclusion in a REMIC or
other Securitization. Without limitation, Lender shall have
the right to cause the Note and the Loan Documents to be split
into a first and a second priority loan, or split into
separate borrower pools in whatever proportion Lender
determines, and thereafter to engage in Secondary Market
Transactions with respect to all or any part of the Loans and
Loan Documents. Borrower acknowledges that it is the intention
of the parties that all or a portion of the Loans may be
securitized and that all or a portion of the Loans (either
itself, or in combination with other loans) will be rated by
one or more Rating Agencies. Borrower further acknowledges
that additional structural
14
modifications may be required to satisfy issues raised by any
Rating Agencies.
(B) COOPERATION; LIMITATIONS. Borrower shall use all
reasonable efforts and cooperate reasonably and in good faith
with Lender in effecting any such restructuring or Secondary
Market Transaction. Such cooperation shall include without
limitation, executing and delivering such reasonable
amendments to the Loan Documents as Lender may request,
provided, however that no such amendment shall modify (I) the
interest rate payable under the Loans; (II) the stated
maturity date of the Loans, or (III) any other economic or
other material terms of the Loans, including, without
limitation, terms and provisions relating to Borrower's
ability to request advances, repay, prepay and re-borrow sums
under this Agreement as if no Secondary Market Transaction or
any other transaction contemplated by or alluded to in this
SECTION 9.16 had occurred. Furthermore, in connection with any
Secondary Market Transaction or other transaction contemplated
by or alluded to in this SECTION 9.16, Lender and Borrower
acknowledge and agree that it is the full intent of the
parties hereto that Borrower shall not incur any additional
costs in borrowing funds under this Agreement and obtaining
the benefits of the revolving credit facility provided for in
this Agreement following a Securitization or other Secondary
Market Transaction, except as expressly provided by this
Agreement (i.e., the payment of the Additional Collateral Fee
and the Exit Fee, as provided herein). Such cooperation also
shall include using best efforts to obtain such certificates
and assurances from governmental entities and others as Lender
may reasonably request. Further, in the event that, in
connection with a Secondary Market Transaction, a Rating
Agency informs Lender that Borrower's organizational structure
as it presently exists would adversely affect the rating of
the Loans or applicable loan pool, Borrower shall use all
reasonable efforts to restructure to the extent necessary to
avert such adverse affect, including, if applicable, the
addition of an outside director to Borrower. Notwithstanding
any other provision of this Agreement, Lender agrees and
acknowledges that under no circumstances shall the Parent or
the Company be required to take any action or subject itself
to any structural modification or other restructuring
requested or demanded by Lender, a Rating Agency, or any other
Person which, in the reasonable judgment of the Parent, could
in any way adversely affect, jeopardize, or alter the Parent's
status as a `Real Estate Investment Trust' under the Internal
Revenue Code of 1986, as amended' or the Company's status as a
`Qualified REIT Subsidiary' thereunder. Borrower shall not be
required to provide additional collateral that was not
initially contemplated by the parties to effect any such
restructuring or Secondary Market Transaction. Borrower shall
not bear the cost of any third parties hired by Lender,
including any Rating Agencies, in connection with a Secondary
Market Transaction. Notwithstanding any other provision of
this Agreement, Lender shall bear, and promptly pay as if
Lender were the primary obligor with respect
15
to, any of the following costs which may be incurred by
Borrower in connection with any Secondary Market Transaction
or any other transaction contemplated by or alluded to in this
SECTION 9.16: (I) title insurance-related costs or premiums,
to the extent that there has been no material change to the
status of title since the Closing Date; (II) due diligence
search costs (including, by way of example and not of
limitation, litigation, UCC, tax lien, and other similar
searches); and (III) filing fees, recording fees, or taxes.
(C) INFORMATION. Borrower shall provide such
information and documents relating to the Borrower, the
manager of the Collateral Property, the Collateral Property
and the business and operations of any of the foregoing as
Lender may reasonably request in connection with any such
Secondary Market Transaction. Lender shall be permitted to
share all such information with the investment banking firms,
Rating Agencies, accounting firms, law firms, other third
party advisory firms, potential investors, and other parties
involved in any proposed Secondary Market Transaction. Any
such information may be incorporated into offering documents
for the Secondary Market Transactions. Lender and all of the
aforesaid third-party advisors and professional firms and
investors shall be entitled to rely upon such information, and
Borrower shall indemnify, defend, and hold harmless Lender
from and against any losses, claims, damages and liabilities
that arise out of or are based upon any actual or alleged
untrue or misleading statement of material fact contained in
such information or the actual or alleged omission of any
material fact without which such information is materially
misleading. Lender may publicize the existence of the Loans in
connection with Lender's Secondary Market Transaction
activities or otherwise.
(D) ADDITIONAL PROVISIONS. In any Secondary Market
Transaction, Lender may transfer its obligations under the
Loan Documents (or may transfer the portion thereof
corresponding to the transferred portion of the obligations of
Borrower), and thereafter Lender shall be relieved of any
obligations under the Loan Documents arising after the date of
said transfer with respect to the transferred interest. Each
transferee investor shall be deemed to be a "Lender" under the
applicable Loan Documents.
12. Effective as of the Modification Date, SCHEDULES 1, 4.14, 5.16 and
5.20 to the Credit Agreement are hereby deleted in their entirety, and inserted
in lieu thereof are SCHEDULES 1, 4.14, 5.16 and 5.20 attached hereto.
13. Effective as of the Modification Date, the promissory note attached
to the Credit Agreement as EXHIBIT A is hereby deleted in its entirety, and
inserted in lieu thereof is EXHIBIT A attached hereto.
14. Company and Parent hereby jointly and severally remake, adopt and
16
ratify each and every representation and warranty set forth in the Credit
Agreement, as modified and amended herein as of the Modification Date, with the
same force and effect as on the Initial Closing Date.
15. In all other respects, the Credit Agreement, as modified and
amended herein, shall remain in full force and effect in accordance with the
terms thereof and each and every term, covenant and agreement contained therein
is hereby adopted, ratified, confirmed and affirmed by each of Company and
Parent.
C. MODIFICATION OF MORTGAGE, PARTIAL RELEASE AND SPREADER
Effective as of the Modification Date, the Mortgage is modified as
follows:
1. Lender hereby remises and releases the Original Collateral
Properties identified in MORTGAGE EXHIBITS A-2 and A-4 attached hereto (the
"RELEASED PROPERTY") from the Lien of the Mortgage as evidenced by the
counterparts thereof recorded in Winnebago County, Illinois as Document No.
9760094, and in Xxxxxx County, Indiana as Document No. 97-28979, Book 795, Page
425, and the Lien of the other Loan Documents. On the Modification Date, Lender,
at Borrower's sole cost and expense, shall deliver such further documents and
instruments as may be reasonably requested to effectuate the foregoing release
of the Released Property from the Lien of the Mortgage and the other Loan
Documents.
2. Effective as of the Modification Date, the Mortgage is hereby
amended to add the following after the Habendum Clauses on Page 6 thereof:
The Lien of the Mortgage is hereby spread to encumber the Modification
Collateral Properties identified on MORTGAGE EXHIBIT A-17 and A-18
attached hereto and made a part hereof, and in connection therewith,
and subject to the terms and conditions of the Mortgage, as modified
hereby, and as the same may be modified or amended, extended, renewed,
replaced, supplemented or restated, Grantor does hereby MORTGAGE, GIVE,
GRANT, BARGAIN, SELL, WARRANT, ALIENATE, REMISE, RELEASE, CONVEY,
ASSIGN, GRANT A SECURITY INTEREST IN, TRANSFER, HYPOTHECATE, DEPOSIT,
PLEDGE, SET OVER and CONFIRM unto to Beneficiary (as to the
Modification Collateral Properties located in any of the Mortgage
States ), or Trustee (as to the Modification Collateral Properties
located in any of the Indenture States ), for the benefit of
Beneficiary, as beneficiary, all of Grantor's estate, right, title and
interest in and to the following property (collectively, the
"MODIFICATION TRUST ESTATE"):
(I) the Modification Collateral Properties (for purposes of
this Modification and the terms and provisions of the Mortgage, as
modified hereby, hereinafter referred to as the "MODIFICATION LAND
PARCELS");
(II) any and all buildings, structures, open or closed parking
areas, and all other structures and improvements of every kind
whatsoever, and any and all
17
additions, alterations, replacements or appurtenances thereto, now or
at any time hereafter situated on, over or under the Modification Land
Parcels or any part thereof (collectively, the "MODIFICATION
BUILDINGS");
(III) all Modification Equipment (as hereinafter defined) now
owned or hereafter acquired by Grantor which is so related to the
Modification Land Parcels and the Modification Buildings that it is
deemed fixtures or real property under the law of the State in which
such Modification Equipment is located, including, without limitation,
all building or construction materials intended for construction,
reconstruction, alteration or repair of or installation on or in the
Modification Land Parcels and the Modification Buildings, construction
equipment, appliances, machinery, plant equipment, fittings, apparatus,
and other items now or hereafter attached to, installed or used in
connection with (temporarily or permanently) any of the Modification
Land Parcels or the Modification Buildings (but excluding any
underground storage tanks), together with all accessions,
appurtenances, additions, replacements and substitutions for any of the
foregoing and the proceeds thereof (collectively, "MODIFICATION
FIXTURES");
(IV) to the extent the same does not constitute Modification
Fixtures, all "equipment", as such term is defined in Article 9 of the
Uniform Commercial Code as in effect from time to time in the State in
which any of the Modification Land Parcels and the Modification
Buildings are located (the "COMMERCIAL CODE"), now owned, or hereafter
acquired and owned by Grantor, which is used at or in connection with
the Modification Buildings or the Modification Land Parcels and is
located thereon or therein (including, but not limited to, all
machinery, furnishings, electronic data-processing and other office
equipment and any and all additions, substitutions and replacements of
any of the foregoing, to the extent located on or in the Modification
Land Parcels or the Modification Buildings), together with all
attachments, components, parts, equipment and accessories installed
thereon or affixed thereto (collectively, "MODIFICATION EQUIPMENT")
(provided, however, that the term "Modification Equipment" shall
specifically exclude (A) all of any Modification Net Tenant's
equipment, (B) all of any Modification Net Tenant's inventory and (C)
all equipment and personal property of subtenants or other occupants of
the Modification Land Parcels or the Modification Improvements, or any
part thereof other than Grantor);
(V) all goods, general intangibles, accounts, chattel paper,
instruments and documents (each as defined in the Commercial Code),
furniture, franchises, contract rights, furnishings, objects of art,
machinery, tools, supplies, appliances, and all other personal property
of any kind or character whatsoever other than Modification Fixtures,
which are now or hereafter owned by Grantor, and which are used at or
in connection with the Modification Buildings or the Modification Land
Parcels, together with all accessories, replacements and substitutions
thereto or therefor (collectively, "MODIFICATION PERSONAL PROPERTY",
and collectively with the Modification Buildings, Modification Fixtures
and
18
Modification Equipment, the "MODIFICATION IMPROVEMENTS");
(VI) any and all leases, including, without limitation,
"MODIFICATION NET LEASES", and, to the extent of the interest therein
of Grantor, subleases or sub-subleases, licenses, concessions or other
agreements (whether written or oral and whether now or hereafter in
effect) pursuant to which any Person is granted a possessory interest
in, or right to use or occupy all or any portion of, the Modification
Land Parcels or the Modification Improvements, and all modifications,
amendments or other agreements relating to such leases, subleases,
sub-subleases or other agreements, and every guarantee of the
performance and observance of the covenants, conditions and agreements
to be performed and observed by the other party thereto (collectively,
"MODIFICATION LEASES") and in and to all cash or securities deposited
thereunder to secure performance by the lessees of their obligations
under the Modification Leases and the right, subject to the provisions
of SECTION 13 of the Mortgage as modified hereby, to receive and
collect all the rents, additional rents, increases in rents, advance
rents, issues, revenues, income, proceeds, profits, royalties, security
deposits and other types of deposits, and other benefits paid or
payable and to become due or payable to Grantor in respect of the use,
occupancy, license or possession of any portion or portions of the
Modification Land Parcels or the Modification Improvements pursuant to
the Leases, and the rights to enforce, whether at law or in equity or
by any other means, all provisions thereof (collectively, "MODIFICATION
RENTS"). As used herein, the term "MODIFICATION NET LEASE" shall refer
to any lease of a Mortgaged Property whereby the tenant thereunder
(each, a "MODIFICATION NET TENANT") is required to pay all real estate
taxes, insurance, utilities and costs of maintenance with respect to
such leased property;
(VII) all permits, licenses and rights, whether now owned or
hereafter acquired, relating to the ownership, use, occupation and
operation of the Modification Land Parcels and the Modification
Improvements;
(VIII) all rights of way or use, air rights, water rights,
utility rights, privileges, franchises, servitudes, easements,
tenements, hereditaments and appurtenances now or hereafter belonging
or appertaining to any of the foregoing; all of Grantor's rights as a
member of any association of owners pursuant to any declarations of use
or restrictive covenants or similar instruments and all of Grantor's
rights pursuant to any restrictive covenants; and all of Grantor's
right, title and interest in and to any streets, ways, alleys,
roadbeds, inclines, tunnels, culverts, strips or gores of land
adjoining or serving the Modification Land Parcels or any part thereof,
whether now owned or hereafter acquired by Grantor;
(IX) all proceeds, if any, accruing to Grantor upon the
conversion, voluntary or involuntary, of any of the foregoing into cash
or liquidated claims, including, without limitation, proceeds of
insurance and condemnation awards and judgments related thereto,
subject to the provisions of SECTIONS 10 and 11 of the Mortgage as
modified hereby;
19
(X) all deposits made by Grantor with Beneficiary pursuant to
SECTIONS 4.A(E) and 9 of the Mortgage as modified hereby;
(XI) (A) all contracts, including the property management
agreement for the Mortgaged Property (the "MODIFICATION PROPERTY
MANAGEMENT AGREEMENT"), and agreements relating to each Mortgaged
Property, and other documents, books and records related to the
operation of each Mortgaged Property; (B) all consents, licenses,
warranties, guaranties and building and other permits required or
useful for the construction, completion and operation of each Mortgaged
Property; (C) all of the Grantor's rights under any contracts or the
sale of any portion of any Mortgaged Property; and (D) all plans and
specifications used or to be used in connection with the construction,
operation or maintenance of each Mortgaged Property, together with all
amendments and modifications thereof;
(XII) those certain ground leases, as more particularly
described in EXHIBIT D attached hereto and made a part hereof
(collectively, the "MODIFICATION GROUND LEASES"), which Ground Leases
encumber those premises described in EXHIBIT D (collectively, the
"MODIFICATION GROUND LEASED PREMISES"); and
(XIII) the Modification Ground Leases, together with all
amendments, supplements, consolidations, replacements, extensions
renewals and other modifications of the Modification Ground Leases now
or hereafter entered into in accordance with the provisions thereof,
together with all right, title or interest of Grantor in, to, under or
derived from the Modification Ground Leased Premises and the
Modification Improvements now or hereafter located thereon which may at
any time be acquired by Grantor by the terms of the Modification Ground
Leases, including the right of Grantor to possession under Section 365
of the Title 11 of the United States Code (11 U.S.C. xx.xx. 101 et
seq.), as amended from time to time, or any successor statute (the
"BANKRUPTCY CODE") in the event of the rejection of any of the
Modification Ground Leases by the landlord thereunder or its trustee
pursuant to said Section, and together with all rights and benefits of
whatsoever nature derived or to be derived by Grantor under the
Modification Ground Leases, including (subject to the terms of the
Mortgage, as modified hereby) the rights to exercise options, to
modify, extend or terminate any of the Modification Ground Leases, to
surrender any of the Modification Ground Leases and to elect to treat
any of the Modification Ground Leases as rejected or to remain in
possession under Section 365(h) of the Bankruptcy Code;
(XIV) all proceeds and products arising from any of the
foregoing; and
(XV) all other security and collateral of any nature
whatsoever, now or hereafter given by Grantor, to secure the payment
and performance of the Obligations.
20
For purposes of the Mortgage, as modified by the Modification,
the "MODIFICATION TRUST ESTATE", including each component thereof,
shall be expressly interpreted as meaning all or any portion of the
items listed above, and of the interest of Grantor therein. The term
"MORTGAGED PROPERTY" means that portion of the Modification Trust
Estate located at or otherwise pertaining to each of the locations
described in MORTGAGE EXHIBIT B hereto.
UNTO Beneficiary, as mortgagee, its successors and assigns to
its use, benefit and behoof, for so long as any of the Obligations
shall remain outstanding, the Modification Trust Estate, to the extent
located in one of the Mortgage States.
WITH MORTGAGE COVENANTS and, if and to the extent permitted by
applicable law, with all POWERS OF SALE, STATUTORY POWERS OF SALE and
other STATUTORY RIGHTS AND COVENANTS and upon the STATUTORY CONDITIONS
in the subject Mortgage State.
TO HAVE AND TO HOLD the Modification Trust Estate, whether now
owned or held or hereafter acquired, with all the privileges and
appurtenances to the same belonging, and with the possession and right
of possession thereof, unto Beneficiary and its successors and assigns
for so long as any of the Obligations shall remain outstanding, subject
to the terms hereof;
OR
UNTO the Trustee, as trustee for the benefit of Beneficiary,
to the successors of said trustee in the trust created by this
Mortgage, and to its or their respective successors and assigns for so
long as any of the Obligations shall remain outstanding, in trust, with
power of sale, the Modification Trust Estate, to the extent located in
one of the Indenture States;
TO HAVE AND TO HOLD the Modification Trust Estate, whether now
owned or held or hereafter acquired, with all the privileges and
appurtenances to the same belonging, and with the possession and right
of possession thereof, unto the Trustee for the benefit of Beneficiary,
to its and their successors in the trust created by this Mortgage, and
to its and their respective assigns for so long as any of the
Obligations shall remain outstanding, in trust, however, upon the terms
and conditions set forth herein.
Grantor hereby binds itself, and it successors and assigns, to
warrant and forever defend the title to the Modification Trust Estate
against the claim or claims of all parties claiming or to claim the
same, or any part thereof for so long as any of the Obligations shall
remain outstanding.
To the extent the Modification Trust Estate is located in a
Mortgage State (A) this instrument shall be deemed to be and shall be
enforceable as a
21
mortgage and as a security agreement, fixture filing, assignment of
leases and rents and financing statement, and (B) the Trustee shall
have no rights, powers or obligations.
To the extent the Modification Trust Estate is located in an
Indenture State (A) this instrument shall be deemed to be and shall be
enforceable as a deed of trust and as a security agreement, fixture
filing, assignment of leases and rents and financing statement, and (B)
the word "Beneficiary" shall be deemed to refer to Beneficiary as
beneficiary.
3. Company warrants that it has good and marketable fee simple absolute
title to the Modification Collateral Properties identified on MORTGAGE EXHIBITS
A-17 and A-18 attached hereto, and has the right to mortgage the same in
accordance with the provisions set forth above and the Mortgage as modified
hereby, and that the Mortgage, as modified hereby, constitutes a valid and
enforceable first Lien on the Modification Collateral Property, subject only to
Permitted Exceptions (as defined in the Mortgage). Company shall (A) preserve
such title and the validity and priority of the Lien of the Mortgage, as
modified hereby, and shall forever warrant and defend the same unto Lender
against the claims of all and every person or persons, corporation or
corporations and parties whomsoever, and (B) make, execute, acknowledge and
deliver all such further or other deeds, documents, instruments or assurances
and cause to be done all such further acts and things as may at any time
hereafter be required by Lender to confirm and fully protect the Lien and
priority of the Mortgage, as modified hereby.
4. Effective as of the Modification Date, the Lien of the Mortgage is
hereby spread and extended to cover, encompass, include and encumber the
Modification Collateral Properties with the same force and effect as if the
Mortgage had for valuable consideration been made, executed, delivered and
recorded including and encumbering the Modification Collateral Properties.
Company and Lender confirm that the Lien of the Mortgage as modified hereby
secures repayment of the Obligations, together with all renewals, modifications,
replacements, consolidations and extensions thereof. Lender acknowledges and
agrees that in connection with the spreading of the Lien of the Mortgage
hereunder to the Modification Collateral Properties, Lender has waived the
Additional Collateral Fee set forth in SECTION 2.8(D) of the Credit Agreement.
5. The Mortgage as modified and spread hereby constitutes a "security
agreement" and creates a "security interest" in favor of Lender as a "secured
party" with respect to all property included in the Modification Collateral
Properties which is covered by the Commercial Code. The Mortgage, as modified
and spread hereby, also constitutes a Commercial Code "financing statement" made
by Company as "debtor" in favor of Lender as "secured party" with respect to all
such property included in the Modification Collateral Properties which is or may
become fixtures or any other type of collateral as to which a security interest
can be perfected by the filing of a financing statement in the appropriate
jurisdiction. This provision shall be self-operative, but Company will
nevertheless execute and deliver to Lender on demand such additional
22
financing statements and other instruments as Lender may reasonably require to
impose or perfect the Lien and security of the Mortgage as modified and spread
hereby upon the Modification Collateral Properties.
6. In order to induce Lender to enter into this Agreement, Company
hereby remakes all representations, warranties and covenants contained in the
Mortgage with respect to the Additional Mortgaged Property as if the same had
been more fully set forth herein. Any misrepresentation or default by Company
hereunder shall constitute a default under the Mortgage, as modified hereby, and
upon the expiration of all applicable grace periods (if any) set forth in the
Mortgage, as modified hereby, or any other Loan Document, Lender may at its
option pursue any and all remedies available to Lender with respect to any
collateral for the Obligations successively or concurrently.
7. Effective as of the Modification Date, the Mortgage is hereby
modified in the following general respects:
(A) all references in the Mortgage or the other Loan Documents to the
"BUILDINGS" shall be deemed to include the Modification Buildings;
(B) all references in the Mortgage or the other Loan Documents to the
"EQUIPMENT" shall be deemed to include the Modification Equipment;
(C) all references in the Mortgage or the other Loan Documents to the
"FIXTURES" shall be deemed to include the Modification Fixtures;
(D) all references in the Mortgage or the other Loan Documents to the
"GROUND LEASES" or the "GROUND LEASED PREMISES" shall be deemed to include the
Modification Ground Leases and the Modification Ground Leased Premises, as the
case may be;
(E) all references in the Mortgage or the other Loan Documents to the
"IMPROVEMENTS" shall be deemed to include the Modification Improvements;
(F) all references in the Mortgage or the other Loan Documents to the
"LAND PARCELS" shall be deemed to include the Modification Land Parcels;
(G) all references in the Mortgage or the other Loan Documents to the
"LEASES" shall include the Modification Leases;
(H) all references in the Mortgage or the other Loan Documents to the
"MORTGAGED PROPERTY" or "MORTGAGED PROPERTIES" shall include the Modification
Collateral Properties and the other Original Collateral Properties;
(I) all references in the Mortgage or the other Loan Documents to a
"NET LEASE" shall be deemed to include a Modification Net Lease;
(J) all references in the Mortgage or the other Loan Documents to a
"NET
23
TENANT" and "NET TENANTS" shall be deemed to include a Modification Net Tenant
and the Modification Net Tenants;
(K) all references in the Mortgage or the other Loan Documents to the
"PERSONAL PROPERTY" shall be deemed to include the Modification Personal
Property;
(L) all references in the Mortgage or the other Loan Documents to the
"PROPERTY MANAGEMENT AGREEMENT" shall be deemed to include the Modification
Property Management Agreement;
(M) all references in the Mortgage or the other Loan Documents to the
"RENTS" shall be deemed to include the Modification Rents; and
(N) all references in the Mortgage or the other Loan Documents to the
"TRUST ESTATE" shall be deemed to include the Modification Trust Estate.
8. To the extent that any term of the Mortgage is inconsistent with any
provision of the Credit Agreement or the other Loan Documents (whether or not
such provision of this Modification specifically modifies one or more of the
Loan Documents), such inconsistent term is hereby modified to the extent
necessary to make it consistent with the provisions of the Credit Agreement or
the other Loan Documents as modified hereby. All references in any Loan Document
to the Mortgage shall mean the Mortgage as modified hereby.
9. Effective as of the Modification Date, EXHIBITS A, B and D to the
Mortgage are hereby deleted in their entirety, and inserted in lieu thereof are
Mortgage EXHIBITS X-0, X-0 and A-5 through A-18, MORTGAGE EXHIBIT B and MORTGAGE
EXHIBIT D attached hereto.
10. The following new subparagraph (k) to Annex III (IL) to the
Mortgage is hereby added following subparagraph (j):
(K) LIMITATION ON INDEBTEDNESS. It is expressly understood and
agreed that the Indebtedness secured by this Mortgage will in no event
exceed two hundred percent (200%) of (i) the total face amount of the
Note, plus (ii) the total interest which may hereafter accrue under the
Note on such face amount.
11. Company and Parent hereby jointly and severally remake, adopt and
ratify each and every representation and warranty set forth in the Mortgage, as
modified and amended herein as of the Modification Date, with the same force and
effect as on the Initial Closing Date.
12. In all other respects, the Mortgage, as modified and amended
herein, shall remain in full force and effect in accordance with the terms
thereof and each and every term, covenant and agreement contained therein is
hereby adopted, ratified, confirmed and affirmed by each of Company and Parent.
24
D. MODIFICATION OF ASSIGNMENT OF RENTS AND LEASES
1. Lender hereby remises and releases the Original Collateral
Properties identified in MORTGAGE EXHIBITS A-2 and A-4 attached hereto (the
"RELEASED PROPERTY") from the Lien of the Assignment of Rents and Leases as
evidenced by the counterparts thereof recorded in Winnebago County, Illinois as
Document No. 9760095, and in Xxxxxx County, Indiana as Document No. 97-28980,
Book 795, Page 426, and the Lien of the other Loan Documents. On the
Modification Date, Lender, at Borrower's sole cost and expense, shall deliver
such further documents and instruments as may be reasonably requested to
effectuate the foregoing release of the Released Property from the Lien of the
Assignment of Rents and Leases and the other Loan Documents.
2. Effective as of the Modification Date, the Assignment of Rents and
Leases is modified to delete in its entirety EXHIBIT A to the Assignment of
Rents and Leases, and inserted in lieu thereof are MORTGAGE EXHIBITS X-0, X-0
and A-5 through A-18 attached hereto. From and after the Modification Date, all
references in the Assignment of Rents and Leases to the Mortgaged Property shall
be deemed to include the Modification Collateral Property.
3. Effective as of the Modification Date, all references in the Credit
Agreement and the other Loan Documents to the Assignment of Rents and Leases
shall mean the Assignment of Rents and Leases as modified by this Modification.
4. In all other respects, the Assignment of Rents and Leases, as
modified and amended herein, shall remain in full force and effect in accordance
with the terms thereof and each and every term, covenant and agreement contained
therein is hereby adopted, ratified, confirmed and affirmed by each of Company
and Parent.
5. Company and Parent hereby jointly and severally remake, adopt and
ratify each and every representation and warranty set forth in the Assignment of
Rents and Leases, as modified and amended herein as of the Modification Date,
with the same force and effect as on the Initial Closing Date.
E. MODIFICATION OF ENVIRONMENTAL INDEMNITY
1. Effective as of the Modification Date, the Environmental Indemnity
is modified to delete in its entirety EXHIBIT A to the Environmental Indemnity,
and inserted in lieu thereof are MORTGAGE EXHIBITS A-1 through A-18 attached
hereto. From and after the Modification Date, all references in the
Environmental Indemnity to the Mortgaged Property shall be deemed to include the
Original Collateral Property, Modification Collateral Property and the Released
Property. Notwithstanding the release of the Released Property from the Lien of
the Mortgage, Company and Parent acknowledge and agree that the indemnification
obligations set forth in the Environmental Indemnity shall survive any such
release, and shall continue in full force and effect. Company and Parent hereby
waive any defense either of them may have based upon the release of the Released
Property.
25
2. Company and Parent hereby jointly and severally remake, adopt and
ratify each and every representation and warranty set forth in the Environmental
Indemnity, as modified and amended herein as of the Modification Date, with the
same force and effect as on the Initial Closing Date.
3. The obligations of each of Company and Parent under the
Environmental Indemnity, as modified by this Modification, are hereby ratified,
affirmed and confirmed by each of Company and Parent, and such obligations
continue in full force and effect.
4. All references in the Credit Agreement and the other Loan Documents
to the Environmental Indemnity shall mean the Environmental Indemnity as
modified by this Modification.
5. In all other respects, the Environmental Indemnity, as modified and
amended herein, shall remain in full force and effect in accordance with the
terms thereof and each and every term, covenant and agreement contained therein
is hereby adopted, ratified, confirmed and affirmed by each of Company and
Parent.
F. GENERAL PROVISIONS
1. Company and Parent hereby agree to execute and deliver promptly to
Lender, at Lender's request, such other documents as Lender, in its reasonable
discretion, shall deem necessary or appropriate to evidence the transaction
contemplated herein.
2. This Modification may be executed in any number of counterparts,
each of which shall constitute an original, but all of which, taken together,
shall constitute one and the same Agreement.
3. Except as otherwise set forth herein to the contrary, the Loan
Documents remain unmodified and continue in full force and effect. Company and
Parent hereby reaffirms, confirms and ratifies each and every covenant,
condition, obligation and provision set forth in the Credit Agreement and the
other Loan Documents, each as modified hereby.
4. This Modification shall be binding upon, and inure to the benefit
of, the successors and assigns of the parties hereto.
5. This Modification shall be governed by and construed in accordance
with the laws of the State of New York without regard to its conflict of laws
principles.
6. The terms and provisions of this Modification are the result of
negotiations between the parties. This Modification shall not be construed in
favor of or against any party by reason of the extent to which any party or
professionals employed or retained by it participated in the preparation of this
Modification.
26
IN WITNESS WHEREOF, the undersigned have caused this Modification to be
executed and delivered by their duly authorized representatives as of the day
and year first above written.
PARENT:
WITNESS: XXXXX REALTY INVESTORS, INC., a
Michigan corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Accounting Officer
COMPANY:
WITNESS: XXXXX REVOLVER, INC., a Michigan
corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Accounting Officer
LENDER:
WITNESS: GREENWICH CAPITAL MARKETS, INC., a
Delaware corporation
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
27
STATE OF ) IL
) ss:
COUNTY OF )
On this ___ day of December, 1999, before me, the undersigned Notary
Public, personally appeared Xxxxxxx X. Xxxxxxxxx, personally known by me, who,
being duly sworn, acknowledged himself to be the Chief Accounting Officer of
Xxxxx Realty Investors, Inc., a Michigan corporation, and that as such officer,
being duly authorized to do so pursuant to its bylaws or a resolution of its
board of directors, executed and acknowledged the foregoing instrument for the
purposes therein contained, by signing his name as Chief Accounting Officer on
behalf of said corporation as such officer, as his free and voluntary act and
deed, and the free and voluntary act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
[S E A L]
Name:
Notary Public, __________ County,
My Commission Expires:
STATE OF )
) ss:
COUNTY OF )
On this ___ day of December, 1999, before me, the undersigned Notary
Public, personally appeared Xxxxxxx X. Xxxxxxxxx, personally known by me, who,
being duly sworn, acknowledged himself to be the Chief Accounting Officer of
Xxxxx Revolver, Inc., a Michigan corporation, and that as such officer, being
duly authorized to do so pursuant to its bylaws or a resolution of its board of
directors, executed and acknowledged the foregoing instrument for the purposes
therein contained, by signing his name as Chief Accounting Officer on behalf of
said corporation as such officer, as his free and voluntary act and deed, and
the free and voluntary act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
[S E A L]
Name:
Notary Public, __________ County,
My Commission Expires:
28
STATE OF ILLINOIS ) IL
) ss:
COUNTY OF X X X X )
On this ___ day of December, 1999, before me, the undersigned Notary
Public, personally appeared Xxxxx X. Xxxxxxx, personally known by me, who, being
duly sworn, acknowledged himself to be the Senior Vice President of Greenwich
Capital Markets, Inc., a Delaware corporation, and that as such officer, being
duly authorized to do so pursuant to its bylaws or a resolution of its board of
directors, executed and acknowledged the foregoing instrument for the purposes
therein contained, by signing his name as Senior Vice President on behalf of
said corporation as such officer, as his free and voluntary act and deed, and
the free and voluntary act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
[S E A L]
Name: Xxxxxxxxx X. Xxxxx III
Notary Public, Xxxx County, Illinois
My Commission Expires: March 21, 2001
29
EXHIBITS AND SCHEDULES
Exhibit A - Amended and Restated Note
Schedule 1 - Property Location/Allocated Loan Amounts
Schedule 4.14 - - List of Material Contracts
Schedule 5.16 - - Environmental Work
Schedule 5.20 - - Capital Expenditure Schedule
Schedule A - Recording Information - Mortgage Counterparts
Schedule B - Recording Information - Assignment of Rents and Leases
Counterparts
Schedule C - Recording Information - Financing Statements
Mortgage Exhibit A-1 - Legal Description of Ft. Xxxxxxxx, WI
Mortgage Exhibit A-2 - Legal Description of Loves Park, IL
Mortgage Exhibit A-3 - Legal Description of New Lenox, IL
Mortgage Exhibit A-4 - Legal Description of Valparaiso, IN
Mortgage Exhibit A-5 - Legal Description of Garden City, KS
Mortgage Exhibit A-6 - Legal Description of Hays, KS
Mortgage Exhibit A-7 - Legal Description of Independence, KS
Mortgage Exhibit A-8 - Legal Description of Emporia, KS
Mortgage Exhibit A-9 - Legal Description of Liberal, KS
Mortgage Exhibit A-10 - Legal Description of Cape Girardeau, MO
Mortgage Exhibit A-11 - Legal Description of Green Bay, WI
Mortgage Exhibit A-12 - Legal Description of Janesville, WI
Mortgage Exhibit A-13 - Legal Description of Madison, WI
Mortgage Exhibit A-14 - Legal Description of Milwaukee, WI
Mortgage Exhibit A-15 - Legal Description of Oshkosh, WI
Mortgage Exhibit A-16 - Legal Description of Stevens Point, WI
Mortgage Exhibit A-17 - Legal Description of Lincoln, IL
Mortgage Exhibit A-18 - Legal Description of Arkansas City, KS
Mortgage Exhibit B - Street Addresses of Mortgaged Property
Mortgage Exhibit D - Ground Leases
30
EXHIBIT A
AMENDED AND RESTATED NOTE
Up to $25,000,000 Chicago, Illinois
Dated as of December 21, 1999
Effective as of November 24, 1999
FOR VALUE RECEIVED, XXXXX REVOLVER, INC., a Michigan corporation (the
"COMPANY"), and XXXXX REALTY INVESTORS, INC., a Michigan corporation (the
"PARENT," and together with Company, hereinafter referred to together as the
"MAKER"), each jointly and severally, promises to pay to the order of GREENWICH
CAPITAL MARKETS, INC., a Delaware corporation (the "LENDER"), for the account of
its Applicable Lending Office, the unpaid principal amount of each Loan made by
the Lender to the Maker pursuant to the Agreement referred to below on the
Revolver Termination Date provided for in the Agreement. The Maker promises to
pay interest on the unpaid principal amount of each such Loan on the dates and
at the rate or rates provided for in the Agreement. All such payments of
principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of Lender at 000
Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx or as Lender may otherwise direct.
All Loans made by the Lender, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Lender and, if the Lender so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Lender on
the schedule attached hereto, or on a continuation of such schedule attached
hereto and made a part hereof; provided that the failure of the Lender to make
any such recordation or endorsement shall not affect the obligations of the
Maker hereunder, under the Agreement or under the other Loan Documents (as
defined in the Agreement).
It is expressly understood and agreed by the Maker that (I) the
principal balance of this Note includes the liabilities previously evidenced by
that certain Note dated November 24, 1997 (the "EXISTING NOTE"), executed by the
Maker in favor of Lender, and (II) to the extent any of such liabilities are
included in the principal balance of this Note, this Note (A) merely
re-evidences the liabilities evidenced by the Existing Note, (B) is given in
substitution for, and not in payment of, the Existing Note, (C) is in no way
intended to constitute a novation of the Existing Note and (D) is in no way
intended to release, cancel, terminate, or otherwise impair all or any part of
any Lien, mortgage, deed of trust, assignment, security interest, pledge or
other encumbrance heretofore granted to Lender as collateral security for the
obligations of Maker with respect thereto.
This Note is the Note referred to in the Revolving Loan Agreement dated
as of November 24, 1997, as amended by that certain First Modification of
Revolving Loan Agreement, Note, Indenture of Mortgage, Deed of Trust, Deed to
Secure Debt, Security
31
Agreement, Financing Statement, Fixture Filing and Assignment of Rents and
Leases, and Other Loan Documents dated as of December 21, 1999, but effective as
of November 24, 1999, by and between Maker and Lender (as so amended, and as the
same may be amended, modified, supplemented, extended, replaced or restated from
time to time, the "AGREEMENT"). Terms defined in the Agreement are used herein
with the same meanings. Reference is hereby made to the Agreement for provisions
for the prepayment hereof and the acceleration of the maturity hereof. This Note
is secured by the Mortgage and certain other Loan Documents. The Maker hereby
waives presentment, demand, protest and notice of protest and non-payment of
this Note.
The Note shall be governed by and construed in accordance with, the
laws of the State of New York, without reference to its conflict of laws
principles.
IN WITNESS WHEREOF, the undersigned have caused this Amended and
Restated Note to be executed and delivered by their duly authorized
representatives as of the day and year first above written.
PARENT:
WITNESS: XXXXX REALTY INVESTORS, INC., a
Michigan corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Accounting Officer
COMPANY:
WITNESS: XXXXX REVOLVER, INC., a
Michigan corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Accounting Officer
32
AMENDED AND RESTATED NOTE
(continued)
LOANS AND PAYMENTS OF PRINCIPAL
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
Date Amount of Type of Loan Amount of Maturity Date Notation Made
Loan Principal By
Repaid
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
--------------------- ------------------ ------------------ ------------------ ------------------ ------------------
33
SCHEDULE 1
SCHEDULE OF ALLOCATED LOAN AMOUNTS
----------------------------------------- --------------------------------------
Property Allocated Loan Amount
----------------------------------------- --------------------------------------
Ft. Xxxxxxxx, WI $1,121,000.00
----------------------------------------- --------------------------------------
New Lenox, IL $2,539,000.00
----------------------------------------- --------------------------------------
Garden City, KS $0.00
----------------------------------------- --------------------------------------
Hays, KS $795,000.00
----------------------------------------- --------------------------------------
Independence, KS $739,000.00
----------------------------------------- --------------------------------------
Emporia, KS $454,000.00
----------------------------------------- --------------------------------------
Liberal, KS $530,000.00
----------------------------------------- --------------------------------------
Cape Girardeau, MO $1,431,000.00
----------------------------------------- --------------------------------------
Green Bay, WI $2,149,000.00
----------------------------------------- --------------------------------------
Janesville, WI $706,000.00
----------------------------------------- --------------------------------------
Madison, WI $1,439,000.00
----------------------------------------- --------------------------------------
Oshkosh, WI $1,259,000.00
----------------------------------------- --------------------------------------
Stevens Point, WI $919,000.00
----------------------------------------- --------------------------------------
Milwaukee, WI $1,825,000.00
----------------------------------------- --------------------------------------
Lincoln, IL $1,429,000.00
----------------------------------------- --------------------------------------
Arkansas City, KS $156,000.00
----------------------------------------- --------------------------------------
TOTAL $17,491,000.00
----------------------------------------- --------------------------------------
34
MORTGAGE EXHIBIT B
PROPERTY LIST
---------------------------------------- ------------------------------------ -------------------------------------
Property Address Title
---------------------------------------- ------------------------------------ -------------------------------------
Ft. Xxxxxxxx, WI 1309 N. High Street Fee Simple
0000 X. Xxxx Xxxxxx
0000 X. Xxxx Xxxxxx
0000 X. Xxxx Xxxxxx
---------------------------------------- ------------------------------------ -------------------------------------
New Lenox, IL 1500 X. Xxxxxxx Highway Fee Simple
---------------------------------------- ------------------------------------ -------------------------------------
Garden City, KS 1210 Xxxxxxx Street Fee Simple
---------------------------------------- ------------------------------------ -------------------------------------
Hays, KS 2900 Broadway Fee Simple
---------------------------------------- ------------------------------------ -------------------------------------
Independence, KS 2505 W. Main Fee Simple
---------------------------------------- ------------------------------------ -------------------------------------
Emporia, KS 0000 X. Xxxxxxx 00 Fee Simple
---------------------------------------- ------------------------------------ -------------------------------------
Liberal, KS 1030 S. Kansas Fee Simple
---------------------------------------- ------------------------------------ -------------------------------------
Cape Girardeau, MO 11 S. Kings Highway Fee Simple
---------------------------------------- ------------------------------------ -------------------------------------
Green Bay, WI 0000 X. Xxxx Xxxxxx Fee Simple
0000 X. Xxxx Xxxxxx
---------------------------------------- ------------------------------------ -------------------------------------
Janesville, WI 2233 Highway 14 Fee Simple
---------------------------------------- ------------------------------------ -------------------------------------
Madison, WI 0000 X. Xxxxxxxxxx Xxxxxx Fee Simple
---------------------------------------- ------------------------------------ -------------------------------------
Oshkosh, WI 000 Xxxxxxx Xxxxxx Fee Simple
---------------------------------------- ------------------------------------ -------------------------------------
Stevens Point, WI 000 X. Xxxxxxxx Xxxxxx Fee Simple
000 X. Xxxxxxxx Xxxxxx
---------------------------------------- ------------------------------------ -------------------------------------
Milwaukee, WI 0000 X. Xxxxx Xxx. Fee Simple
---------------------------------------- ------------------------------------ -------------------------------------
Lincoln, IL 0000 Xxxxxxxx Xxxx Fee Simple
0000 Xxxxxxxx Xxxx
---------------------------------------- ------------------------------------ -------------------------------------
Arkansas City, KS 0000 Xxxxxx Xxxxxx Fee Simple
---------------------------------------- ------------------------------------ -------------------------------------
35
MORTGAGE EXHIBIT D
GROUND LEASES
None
36
SCHEDULE A
RECORDING INFORMATION FOR MORTGAGES
------------------------ ------------------------- ------------------------------ --------------------- ------------------------
COLLATERAL PROPERTY JURISDICTION INSTRUMENT RECORDING DATE RECORDING NUMBER
------------------------ ------------------------- ------------------------------ --------------------- ------------------------
Fort Xxxxxxxx, WI Jefferson County, WI Indenture of Mortgage, Deed 12/02/97 Doc # 983744
of Trust, Deed to Secure
Debt, Security Agreement,
Financing Statement, Fixture
Filing and Assignment of
Rents and Leases
------------------------ ------------------------- ------------------------------ --------------------- ------------------------
Loves Park, IL Winnebago County, IL Indenture of Mortgage, Deed 12/04/97 Doc # 9760094
of Trust, Deed to Secure
Debt, Security Agreement,
Financing Statement, Fixture
Filing and Assignment of
Rents and Leases
------------------------ ------------------------- ------------------------------ --------------------- ------------------------
New Lenox, IL Will County, IL Indenture of Mortgage, Deed 11/26/97 Doc # R97-105168
of Trust, Deed to Secure
Debt, Security Agreement,
Financing Statement, Fixture
Filing and Assignment of
Rents and Leases
------------------------ ------------------------- ------------------------------ --------------------- ------------------------
Valparaiso, IN Xxxxxx County, IN Indenture of Mortgage, Deed 12/02/97 Doc # 97-28979, Book 795,
of Trust, Deed to Secure Page 425
Debt, Security Agreement,
Financing Statement, Fixture
Filing and Assignment of
Rents and Leases
------------------------ ------------------------- ------------------------------ --------------------- ------------------------
Garden City, KS Xxxxxx County, KS Indenture of Mortgage, Deed 12/02/97 Book 215, Page 472
of Trust, Deed to Secure
Debt, Security Agreement,
Financing Statement, Fixture
Filing and Assignment of
Rents and Leases
------------------------ ------------------------- ------------------------------ --------------------- ------------------------
37
Hays, KS Xxxxx County, KS Indenture of Mortgage, Deed 12/03/97 Book 439, Page 376
of Trust, Deed to Secure
Debt, Security Agreement,
Financing Statement, Fixture
Filing and Assignment of
Rents and Leases
------------------------ ------------------------- ------------------------------ --------------------- ------------------------
Independence, KS Xxxxxxxxxx County, KS Indenture of Mortgage, Deed 12/02/97 Book 465, Page 74
of Trust, Deed to Secure
Debt, Security Agreement,
Financing Statement, Fixture
Filing and Assignment of
Rents and Leases
------------------------ ------------------------- ------------------------------ --------------------- ------------------------
Emporia, KS Lyon County, KS Indenture of Mortgage, Deed 12/02/97 Book 282, Page 425
of Trust, Deed to Secure
Debt, Security Agreement,
Financing Statement, Fixture
Filing and Assignment of
Rents and Leases
------------------------ ------------------------- ------------------------------ --------------------- ------------------------
Liberal, KS Xxxxxx County, KS Indenture of Mortgage, Deed 12/04/97 Book 487, Page 770
of Trust, Deed to Secure
Debt, Security Agreement,
Financing Statement, Fixture
Filing and Assignment of
Rents and Leases
------------------------ ------------------------- ------------------------------ --------------------- ------------------------
Cape Girardeau, MO Cape Girardeau County, MO Indenture of Mortgage, Deed 12/02/97 Book 902, Page 127
of Trust, Deed to Secure
Debt, Security Agreement,
Financing Statement, Fixture
Filing and Assignment of
Rents and Leases
------------------------ ------------------------- ------------------------------ --------------------- ------------------------
Green Bay, WI Xxxxx County, WI Indenture of Mortgage, Deed 12/03/97 Doc # 1583335
of Trust, Deed to Secure
Debt, Security Agreement,
Financing Statement, Fixture
Filing and Assignment of
Rents and Leases
------------------------ ------------------------- ------------------------------ --------------------- ------------------------
38
Janesville, WI Rock County, WI Indenture of Mortgage, Deed 12/01/97 Doc # 1351026
of Trust, Deed to Secure
Debt, Security Agreement,
Financing Statement, Fixture
Filing and Assignment of
Rents and Leases
------------------------ ------------------------- ------------------------------ --------------------- ------------------------
Madison, WI Dane County, WI Indenture of Mortgage, Deed 12/02/97 Doc # 2911586
of Trust, Deed to Secure
Debt, Security Agreement,
Financing Statement, Fixture
Filing and Assignment of
Rents and Leases
------------------------ ------------------------- ------------------------------ --------------------- ------------------------
Milwaukee, WI Milwaukee County, WI Indenture of Mortgage, Deed 12/01/97 Doc # 7455564
of Trust, Deed to Secure
Debt, Security Agreement,
Financing Statement, Fixture
Filing and Assignment of
Rents and Leases
------------------------ ------------------------- ------------------------------ --------------------- ------------------------
Oshkosh, WI Winnebago County, WI Indenture of Mortgage, Deed 12/02/97 Doc # 990627
of Trust, Deed to Secure
Debt, Security Agreement,
Financing Statement, Fixture
Filing and Assignment of
Rents and Leases
------------------------ ------------------------- ------------------------------ --------------------- ------------------------
Stevens Point, WI Portage County, WI Indenture of Mortgage, Deed 12/02/97 Doc # 532188
of Trust, Deed to Secure
Debt, Security Agreement,
Financing Statement, Fixture
Filing and Assignment of
Rents and Leases
------------------------ ------------------------- ------------------------------ --------------------- ------------------------
39
SCHEDULE B
RECORDING INFORMATION FOR ASSIGNMENT OF RENTS AND LEASES
------------------------- ---------------------------- ------------------------------ -------------------- -------------------------
COLLATERAL PROPERTY JURISDICTION INSTRUMENT RECORDING DATE RECORDING NUMBER
------------------------- ---------------------------- ------------------------------ -------------------- -------------------------
Fort Xxxxxxxx, WI Jefferson County, WI Assignment of Leases, Rents 12/02/97 Doc # 983745
and Security Deposits
------------------------- ---------------------------- ------------------------------ -------------------- -------------------------
Loves Park, IL Winnebago County, IL Assignment of Leases, Rents 12/04/97 Doc # 9760095
and Security Deposits
------------------------- ---------------------------- ------------------------------ -------------------- -------------------------
New Lenox, IL Will County, IL Assignment of Leases, Rents 11/26/97 Doc # R97-105169
and Security Deposits
------------------------- ---------------------------- ------------------------------ -------------------- -------------------------
Valparaiso, IN Xxxxxx County, IN Assignment of Leases, Rents 12/02/97 Doc # 97-28980, Book 795,
and Security Deposits Page 426
------------------------- ---------------------------- ------------------------------ -------------------- -------------------------
Garden City, KS Xxxxxx County, KS Assignment of Leases, Rents 12/02/97 Book 215, Page 473
and Security Deposits
------------------------- ---------------------------- ------------------------------ -------------------- -------------------------
Hays, KS Xxxxx County, KS Assignment of Leases, Rents 12/03/97 Book 439, Page 479
and Security Deposits
------------------------- ---------------------------- ------------------------------ -------------------- -------------------------
Independence, KS Xxxxxxxxxx County, KS Assignment of Leases, Rents 12/02/97 Book 465, Page 75
and Security Deposits
------------------------- ---------------------------- ------------------------------ -------------------- -------------------------
Emporia, KS Lyon County, KS Assignment of Leases, Rents 12/02/97 Book 511, Page 371
and Security Deposits
------------------------- ---------------------------- ------------------------------ -------------------- -------------------------
Liberal, KS Xxxxxx County, KS Assignment of Leases, Rents 12/04/97 Book 487, Page 874
and Security Deposits
------------------------- ---------------------------- ------------------------------ -------------------- -------------------------
Cape Girardeau, MO Cape Girardeau County, MO Assignment of Leases, Rents 12/02/97 Book 902, Page 231
and Security Deposits
------------------------- ---------------------------- ------------------------------ -------------------- -------------------------
Green Bay, WI Xxxxx County, WI Assignment of Leases, Rents 12/03/97 Doc # 1583334
and Security Deposits
------------------------- ---------------------------- ------------------------------ -------------------- -------------------------
Janesville, WI Rock County, WI Assignment of Leases, Rents 12/01/97 Doc # 1351027
and Security Deposits
------------------------- ---------------------------- ------------------------------ -------------------- -------------------------
40
Madison, WI Dane County, WI Assignment of Leases, Rents 12/02/97 Doc # 2911587
and Security Deposits
------------------------- ---------------------------- ------------------------------ -------------------- -------------------------
Milwaukee, WI Milwaukee County, WI Assignment of Leases, Rents 12/01/97 Doc # 7455565
and Security Deposits
------------------------- ---------------------------- ------------------------------ -------------------- -------------------------
Oshkosh, WI Winnebago County, WI Assignment of Leases, Rents 12/02/97 Doc # 990628
and Security Deposits
------------------------- ---------------------------- ------------------------------ -------------------- -------------------------
Stevens Point, WI Portage County, WI Assignment of Leases, Rents 12/02/97 Doc # 532189
and Security Deposits
------------------------- ---------------------------- ------------------------------ -------------------- -------------------------
41
SCHEDULE C
RECORDING INFORMATION FOR FINANCING STATEMENTS
--------------------------------- -------------------------------- ----------------------- ----------------------------------------
COLLATERAL PROPERTY JURISDICTION RECORDING DATE RECORDING NUMBER
================================= ================================ ======================= ========================================
Fort Xxxxxxxx, WI Jefferson County, WI 12/2/97 Doc # 183532, Volume 1015, Page 556
-------------------------------- ----------------------- ----------------------------------------
Wisconsin Secretary of Xxxxx 00/0/00 Xxx # 0000000
================================= ================================ ======================= ========================================
Loves Park, IL Winnebago County, IL 12/04/97 Doc #304642
-------------------------------- ----------------------- ----------------------------------------
Illinois Secretary of Xxxxx 00/00/00 Xxx # 0000000
================================= ================================ ======================= xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxx Xxxxx, XX Will County, IL 11/26/97 Doc # R97-105170, File # U97002112
-------------------------------- ----------------------- ----------------------------------------
Illinois Secretary of Xxxxx 00/00/00 Xxx # 0000000
================================= ================================ ======================= ========================================
Valparaiso, IN Xxxxxx County, IN 12/02/97 Doc # 46680
-------------------------------- ----------------------- ----------------------------------------
Indiana Secretary of State 12/08/97 Doc #2161081
================================= ================================ ======================= ========================================
Garden City, KS Xxxxxx County, KS 12/2/97 Doc # 97-704, File # 7455
-------------------------------- ----------------------- ----------------------------------------
Kansas Secretary of Xxxxx 00/0/00 Xxx # 0000000
================================= ================================ ======================= ========================================
Hays, KS Xxxxx County, KS 12/3/97 Doc # 613
-------------------------------- ----------------------- ----------------------------------------
Kansas Secretary of Xxxxx 00/0/00 Xxx # 0000000
================================= ================================ ======================= ========================================
Independence, KS Xxxxxxxxxx County, KS 12/2/97 Doc # 095405
-------------------------------- ----------------------- ----------------------------------------
Kansas Secretary of Xxxxx 00/0/00 Xxx # 0000000
================================= ================================ ======================= ========================================
42
================================= ================================ ======================= ========================================
Emporia, KS Lyon County, KS 12/2/97 Doc # 400
-------------------------------- ----------------------- ----------------------------------------
Kansas Secretary of Xxxxx 00/0/00 Xxx # 0000000
================================= ================================ ======================= ========================================
Liberal, KS Xxxxxx County, KS 12/4/97 Doc # 97-6829
-------------------------------- ----------------------- ----------------------------------------
Kansas Secretary of Xxxxx 00/0/00 Xxx # 0000000
================================= ================================ ======================= ========================================
Cape Girardeau, MO Cape Girardeau County, MO 12/2/97 Doc # 087554
-------------------------------- ----------------------- ----------------------------------------
Missouri Secretary of Xxxxx 00/0/00 Xxx # 0000000
================================= ================================ ======================= ========================================
Green Bay, WI Xxxxx County, WI 12/3/97 Doc # 666583
-------------------------------- ----------------------- ----------------------------------------
Wisconsin Secretary of Xxxxx 00/0/00 Xxx # 0000000
================================= ================================ ======================= ========================================
Janesville, WI Rock County, WI 12/1/97 Doc # 937750U
-------------------------------- ----------------------- ----------------------------------------
Wisconsin Secretary of Xxxxx 00/0/00 Xxx # 0000000
================================= ================================ ======================= ========================================
Madison, WI Dane County, WI 12/2/97 Doc # 0867170
-------------------------------- ----------------------- ----------------------------------------
Wisconsin Secretary of Xxxxx 00/0/00 Xxx # 0000000
================================= ================================ ======================= xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxxxxxx, XX Milwaukee County, WI 12/01/97 Doc # 30808537
-------------------------------- ----------------------- ----------------------------------------
Wisconsin Secretary of Xxxxx 00/0/00 Xxx # 0000000
================================= ================================ ======================= ========================================
Oshkosh, WI Winnebago County, WI 12/2/97 Doc # 1003116
-------------------------------- ----------------------- ----------------------------------------
Wisconsin Secretary of Xxxxx 00/0/00 Xxx # 0000000
================================= ================================ ======================= ========================================
Stevens Point, WI Portage County, WI 12/2/97 Doc # 239133
-------------------------------- ----------------------- ----------------------------------------
Wisconsin Secretary of Xxxxx 00/0/00 Xxx # 0000000
================================= ================================ ======================= ========================================
Global Secretary of State, Michigan 12/09/97 Doc # D313499
================================= ================================ ======================= ========================================
