FIFTH MODIFICATION OF MASTER CONSTRUCTION LOAN AGREEMENT
THIS FIFTH MODIFICATION, dated and effective as of April 23, 1999, is
made and entered into by and between XXXXXXXX XXXX BTS, INC., a Delaware
corporation having a notice address of 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000-0000 ("Developer"), and KEYBANK NATIONAL ASSOCIATION,
a national banking association having a notice address of 00 Xxxx Xxxxxx
Xxxxxx, 0xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 ("Bank").
RECITALS:
A. Developer and Bank entered into that certain Master Construction
Loan Agreement, dated August 4, 1997, as modified by that certain First
Modification of Master Construction Loan Agreement between Developer and
Bank, dated September 15, 1997, and as modified by that certain Second
Modification of Master Construction Loan Agreement between Developer and
Bank, dated May 12, 1998, as modified by that certain Third Modification of
Master Construction Loan Agreement between Developer and Bank, dated June 9,
1998 and as modified by that certain Fourth Modification of Master
Construction Loan Agreement between Developer and Bank, dated December 30,
1998 (collectively, the "Loan Agreement").
B. The parties hereto desire to further modify the Loan Agreement in
accordance with the terms and conditions set forth herein.
AGREEMENT
NOW THEREFORE, for and in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged the parties hereto agree as follows:
1. SCHEDULE 1 OF THE LOAN AGREEMENT. The Loan Agreement is hereby
modified by substituting SCHEDULE I attached to this Modification for
SCHEDULE I attached to the Loan Agreement.
2. EXPENSES. Borrower shall pay all costs incidental to this
Modification, including but not limited to title insurance, survey charges,
reasonable attorneys' fees, appraisals, insurance, inspecting engineers'
and/or architect's fees, environmental fees, and all other incidental
expenses of Bank.
3. REPRESENTATIONS AND WARRANTIES. Developer hereby represents and
warrants to Bank that there does not presently exist any default under the
Loan Agreement or any event which with the notice or lapse of time or both
would constitute a default under the Loan Agreement and that each of the
representations and warranties set forth in the Loan Agreement remain true
and correct as of the date hereof, except to the extent said representations
and warranties specifically apply to those items explicitly modified by or
otherwise disclosed in this Modification, and each of said representations
and warranties is hereby incorporated herein by reference and modified as
necessary to apply to and cover the undertakings of Developer evidenced by
this Modification.
4. CONTINUING EFFECT. All other terms, conditions, provisions,
representations and warranties set forth in the Loan Agreement not
specifically relating to those items explicitly modified by or otherwise
disclosed in this Modification shall remain unchanged and shall continue in
full force and effect. This Modification shall, wherever possible, be
construed in a manner consistent with the Loan Agreement; provided, however,
in the event of any irreconcilable inconsistency between the terms of this
Modification and the terms of the Loan Agreement, the terms of this
Modification shall control.
5. WAIVER. No provision hereof shall constitute a waiver of any of
the terms or conditions of the Loan Agreement, other than those terms or
conditions explicitly modified or otherwise affected hereby.
IN WITNESS WHEREOF, Developer and Bank have caused this Fifth
Modification of Master Construction Loan Agreement to be duly executed as of
the date and year first above written.
"DEVELOPER"
XXXXXXXX XXXX BTS, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
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Printed: Xxxx X. Xxxxxxx
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Title: Vice President
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"BANK"
KEYBANK NATIONAL ASSOCIATION, a national banking
association
By: /s/ Xxxxxxxx X. Xxxxx
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Printed: Xxxxxxxx X. Xxxxx
---------------------------------------
Title: Vice President
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STATE OF COLORADO )
CITY AND ) SS:
COUNTY OF DENVER )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxx X. Xxxxxxx, known to me to be the Vice President of XXXXXXXX
XXXX BTS, INC., a Delaware corporation, and acknowledged the execution of the
foregoing for and on behalf of said corporation.
Witness my hand and Notarial Seal, this 26th day of April, 1999.
/s/ Xxx X. Xxxxxx
------------------------------------------------
Notary Public - Signature
Xxx X. Xxxxxx
------------------------------------------------
Notary Public - Printed
My Commission Expires: My County of Residence:
10/6/02 Denver
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STATE OF INDIANA )
) SS:
COUNTY OF XXXXXX )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxxxxx X. Xxxxx, known to me to be a Vice President of KEYBANK
NATIONAL ASSOCIATION, a national banking association, and acknowledged the
execution of the foregoing for and on behalf of said association.
Witness my hand and Notarial Seal, this 5th day of May, 1999.
/s/ Xxxx X. Xxxxxx
------------------------------------------------
Notary Public - Signature
Xxxx X. Xxxxxx
------------------------------------------------
Notary Public - Printed
My Commission Expires: My County of Residence:
3/4/01 Xxxxxxxx
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This instrument was prepared by Xxxxxx X. Xxxxxxx, Attorney at Law, JOHNSON,
SMITH, XXXXX, XXXXXX & XXXXX, LLP, Xxx Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxxxx, Xxxxxxx 00000.
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SCHEDULE I
PetsMart, Inc. shall be an Approved Tenant for one PetsMart facility in
Savannah, Georgia and for one PetsMart facility in Arvada, Colorado.
Stater Bros. shall be an Approved Tenant for one Stater Bros. grocery retail
facility in Murrieta, California.
PetCo Animal Supplies, Inc. shall be an Approved Tenant for one PetCo retail
facility in Tucson, Arizona.
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