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Exhibit 4.7
FOURTH AMENDMENT TO LOAN AGREEMENT
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THIS FOURTH AMENDMENT TO LOAN AGREEMENT ("Fourth Amendment")
is entered into as of the 13th day of December, 1996, by and among
ZML-OLD ORCHARD LIMITED PARTNERSHIP, an Illinois limited partnership
("Beneficiary"), AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO,
a national banking association, not individually but as Trustee under
Trust Agreement dated June 1, 1993, and known as Trust No. 116914-09
("Trustee") (Trustee and Beneficiary are sometimes collectively referred
to herein as "Borrower"), and THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey corporation ("Prudential"), and MELLON BANK, N.A., as Trustee
for First Plaza Group Trust, a New York Trust ("FPGT") (Prudential and
FPGT sometimes being collectively referred to herein as "Lender").
RECITALS
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A. Borrower and Lender entered into that certain
Construction Loan Agreement dated as of September 16, 1994 by and
among Borrower and Lender (the "Original Loan Agreement"), pursuant
to which Lender agreed to make a loan to Borrower in the maximum aggregate
principal amount of One Hundred Five Million Dollars ($105,000,000)
(the "Original "Loan"). The Original Loan is being funded on a several
basis in the amount of Fifty-Two Million Five Hundred Thousand Dollars
($52,500,000) by each of Prudential and FPGT and is evidenced by two
promissory notes in that amount executed by Borrower and delivered to
FPGT and Prudential, respectively (collectively the "Original Notes"). In
connection with the Original Loan, certain other documents were executed
and delivered to Lender, including but not limited to that certain Guaranty
dated September 16, 1994, executed by Xxxx/Xxxxxxx Xxxxx Real Estate
Opportunity Partners Limited Partnership II, an Illinois limited partnership
("Guarantor") to and for the benefit of Lender (the "Original Guaranty").
B. Subsequent to the date of the Original Loan Agreement, Borrower
and Lender entered into that certain First Amendment to Loan Agreement,
Mortgage, and Other Loan Documents dated May 8, 1995, and recorded
May 10, 1995, as Document No. 95-307616 in the office of the Recorder
(the "First Amendment").
C. Borrower subsequently requested an additional loan in the aggregate
principal amount of Fifty-Five Million Dollars ($55,000,000.00), to be funded
by each of Prudential and FPGT, severally and in equal proportions (herein
called the "Supplemental Loan"), for construction of a Bloomingdale's store,
a parking garage, and additional mall tenant space and related improvements
at the north end of the Shopping Center, which request was approved by
Lender. Accordingly, (i) Borrower and Lender entered into that certain
Second Amendment to Loan Agreement dated June 15, 1995 (the "Second
Amendment"), (ii) Borrower executed and delivered two promissory notes,
each in the maximum aggregate principal amount of Twenty-Seven Million Five
Hundred Thousand Dollars ($27,500,000), to FPGT and Prudential,
respectively (collectively the "Supplemental Notes"), and (iii) Lender
received certain other amendments and/or supplements to other Loan
Documents, as more particularly described in the Second Amendment,
including a certain First Amendment to Guaranty and Other Loan Documents
dated June 15, 1995 (the "First Guaranty Amendment").
D. Borrower subsequently requested that Lender (i) disburse all
of the remaining, undisbursed portion of the Original Loan and (ii) disburse
a portion of the remaining, undisbursed portion of the Supplemental Loan,
notwithstanding that certain requirements for such disbursements had not
then been satisfied, which request was approved by Lender. Accordingly,
(a) Borrower and Lender entered into that certain Third Amendment to Loan
Agreement, dated as of December 18, 1995 (the "Third Amendment"), and
(b) Lender received that certain Second Amendment to Guaranty dated
December 18, 1995 (the "Second Guaranty Amendment"). The Original Loan
Agreement, as amended by the First Amendment, Second Amendment, and
Third Amendment, is collectively referred to herein as the "Existing Loan
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Agreement". Terms appearing as defined terms in this Fourth
Amendment and not otherwise expressly defined herein shall have
the respective meanings given them in the Existing Loan Agreement.
E. The latest date permitted under the Existing Loan
Agreement for (i) satisfaction by Borrower of all conditions for
the disbursement of the remaining, undisbursed portion of the
Supplemental Loan and (ii) conversion of the Original Loan and
Supplemental Loan to the Permanent Phase was October 1, 1996. In
addition, under the provisions of the Third Amendment, Borrower
agreed that certain specified conditions that were not satisfied
with respect to the disbursements made pursuant to the Third
Amendment would be satisfied no later than October 1, 1996.
Borrower requested that Lender allow Borrower additional time
beyond October 1, 1996, in which to satisfy the foregoing
conditions and requirements, to which Lender has agreed, subject
to Borrower commencing amortization payments on the Original Loan
and Supplemental Loan on November 1, 1996, as if the conversion
of the Loan had occurred by the required date (but without
waiving the conditions and requirements of the Existing Loan
Agreement referred to above).
F. Borrower has requested that Lender disburse the
remaining, undisbursed portion of the Supplemental Loan to
Borrower and allow the Original Loan and Supplemental Loan to
convert to the Permanent Phase, notwithstanding that certain
conditions and requirements for such disbursement and conversion
have not been satisfied at the present time, and Lender has
agreed to do so on the terms and conditions set forth in this
Fourth Amendment. The parties hereto desire to amend the
Existing Loan Agreement to set forth with particularity the
terms, covenants, and conditions on which Lender is making such
disbursement and converting the Original Loan and Supplemental
Loan to the Permanent Phase.
AGREEMENTS
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NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
INCORPORATION PROVISIONS AND
CONDITIONS PRECEDENT
1.1 Incorporation of Recitals, Exhibits
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The foregoing Recitals and the Exhibits attached to this
Fourth Amendment are incorporated herein and expressly made a
part hereof.
1.2 Conditions Precedent to Lenders' Obligations
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This Fourth Amendment shall be effective only if Borrower
satisfies the following conditions on or before the date hereof
(it being agreed that Lender's execution and delivery of this
Fourth Amendment shall constitute Lender's acknowledgement that
such conditions have been satisfied, except as may otherwise be
expressly agreed in writing between Borrower and Lender):
(a) THIRD GUARANTY AMENDMENT. Borrower shall have
caused Guarantor to execute and deliver to Lender a Third
Amendment to Guaranty satisfactory to Lender (the "Third
Guaranty Amendment");
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(b) AUTHORITY. Borrower shall have furnished to
Lender evidence of the authority of Borrower and Guarantor
to enter into this Fourth Amendment and the Third Guaranty
Amendment and of the validity and enforceability of this
Amendment and the Third Guaranty Amendment against Borrower
and Guarantor, respectively, which shall be satisfactory to
Lender.
(c) FEES AND EXPENSES. Borrower shall have paid to
Lender all of the fees and costs of Lender required to be
paid by Borrower under Article 5 of the Loan Agreement,
including those in connection with the documentation of this
Fourth Amendment, to the extent incurred by Lender through
the date of execution of this Fourth Amendment; and
(d) NO DEFAULT. No Event of Default, nor any event
which, with the giving of notice or the passage time (or
both) would constitute an Event of Default, under any of the
Loan Documents (as redefined in ARTICLE 2 hereof) shall have
occurred.
ARTICLE 2
DEFINITIONS
2.1 Defined Terms
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The following terms shall have the following respective
meanings whenever used in this Fourth Amendment. Such
definitions are hereby incorporated into and made a part of
SECTION 2.1 of the Original Loan Agreement, as amended by the
First Amendment, Second Amendment and Third Amendment, and where
a term defined in the Original Loan Agreement, First Amendment,
Second Amendment or Third Amendment is redefined in this Section,
such definition shall supersede the definition contained in the
Original Loan Agreement, First Amendment, Second Amendment and/or
Third Amendment (as the case may be).
BORROWER'S CERTIFICATION: That certain Borrower's
Certification of even date herewith being executed and
delivered by Beneficiary to Lender.
LOAN AGREEMENT: The Existing Loan Agreement, as the
same has been amended by this Fourth Amendment, together
with any further amendments, modifications, renewals, or
extensions thereof. References in the Original Loan
Agreement, as previously amended, to "this Agreement" shall
be deemed to mean and refer to the "Loan Agreement" as
hereinabove defined.
LOAN DOCUMENTS: The Loan Agreement, the Borrower's
Certification, and each of the other Loan Documents as
defined in the Second Amendment, together with the Original
Guaranty, as amended by the First Guaranty Amendment, Second
Guaranty Amendment and Third Guaranty Amendment, and any
further amendments, modifications, renewals, or extensions
of any of the foregoing.
FOURTH AMENDMENT: This Fourth Amendment to Loan
Agreement.
2.2 Other Definitions
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All references in the Loan Agreement or other Loan Documents
to this Fourth Amendment or any of the specific Loan Documents
shall be deemed to include any amendments to such Loan Documents
contained or referred to in this Fourth Amendment.
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ARTICLE 3
LOAN PAYMENTS AND DISBURSEMENTS
3.1 Final Disbursement of Supplemental Loan
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On or about the date of this Fourth Amendment, Lender will
be making a disbursement in the aggregate amount of $9,431,024.25
under the Supplemental Notes, representing all funds remaining to
be disbursed under the Supplemental Loan. A portion of such
disbursement, together with a portion of the funds previously
disbursed by Lender, in the aggregate amount of $1,154,771,
represents unpaid Tenant Costs for those Leases identified on
EXHIBIT A hereto. Upon Lender making such disbursement, the
aggregate principal amount outstanding under the Supplemental
Notes shall be $54,917,287.37 (which is equal to the $55,000,000
principal amount of the Supplemental Loan less the amortization
payments made prior to the date hereof as described in Section
3.4 hereof), and Borrower shall be entitled to no further
disbursements of funds under the Supplemental Loan. The parties
further acknowledge and agree that the aggregate, outstanding
principal balance under the Original Notes as of the date hereof
is $104,886,999.28 (which is equal to the $105,000,000 principal
amount of the Original Loan less the amortization payments made
prior to the date hereof as described in Section 3.4 hereof).
3.2 No Waiver of Conditions
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The parties acknowledge that the foregoing disbursement is
being made notwithstanding that certain conditions and
requirements for disbursement under Sections 8.6, 9.5 and 9.6 of
the Loan Agreement, as more particularly described in the Third
Guaranty Amendment, have not been satisfied as of the date
hereof. In consideration of Lender's agreement to make such
disbursement, Borrower is causing Guarantor to execute and
deliver to Lender the Third Guaranty Amendment. Except as
expressly provided immediately below, Lender is not hereby
waiving satisfaction of such conditions and requirements, and
Lender's agreement to make the above disbursement shall not be
deemed or construed as such a waiver. Lender shall not be
obligated to release the additional guaranties being given under
the terms of the Third Guaranty Amendment unless and until the
conditions and requirements under Section 3(b) of the Guaranty
are satisfied. Lender hereby agrees that, with respect to the
disbursements being made by Lender as described in SECTION 3.1
hereof, those conditions and requirements in Sections 8.6, 9.5
and 9.6 other than those described in PARAGRAPH 3(b) of the
Guaranty either (A) have been satisfied as of the date hereof, or
(B) do not need to be satisfied by Borrower and are hereby waived.
3.3 Extension of Time; Conversion
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Lender hereby confirms that the date for satisfaction of the
conditions and requirements for the final disbursement of the
Supplemental Loan and conversion of the Original Loan and
Supplemental Loan to the Permanent Phase has been extended
through and including the date of this Fourth Amendment. On the
basis of Lender's receipt of the Borrower's Certification,
certain certificates of architects and contractors listed on
EXHIBIT B attached hereto, and certain title endorsements,
surveys, and other documentation and information pursuant to the
terms of the Existing Loan Agreement, Borrower and Lender agree
that (i) the "Conversion Date" (as used in the Loan Agreement and
the Notes) has occurred and the Loan is now in the Permanent Phase,
and (ii) the principal amounts under each of the Original Notes and
Supplemental Notes have been fully disbursed, and Borrower is entitled
to no further disbursements of funds under the Loan.
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3.4 Amortization and Payments
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Notwitstanding that the conversion of the Original Loan and
Supplemental Loan is occurring on the date of this Fourth
Amendment, the "Amortization Period" (as defined in the Original
Notes and Supplemental Notes) shall be deemed to have commenced
immediately following October 1, 1996 (and consequently
Borrower's first payment of principal and interest during the
Amortization Period occurred on November 1, 1996). Because the
Original Loan was in fact fully disbursed as of October 1, 1996,
Borrower commenced making fixed payments of principal and
interest in the amount set forth below on November 1, 1996.
However, the Supplemental Loan was not fully disbursed as of
October 1, 1996, and on November 1, 1996 and December 1, 1996,
Borrower made payments equal to the sum of (i) accrued interest
for the prior month based on the actual principal amounts
outstanding under the Supplemental Loan during such month plus
(ii) principal payments determined as if the Supplemental Loan
had been fully disbursed as of October 1, 1996. The amounts of
such payments are set forth on EXHIBIT C attached hereto. The
payments due on January 1, 1997 will be determined in a similar
manner, and the computation thereof (assuming a final
disbursement on December 16, 1996) is set forth on EXHIBIT D
attached hereto. On February 1, 1997 and continuing on the first
day of each month thereafter to the Maturity Date, Borrower shall
be obligated to make the following monthly payments of principal
and interest:
Under the Original Notes (total): $851,662.17
Under the Supplemental Notes (total): $382,686.67
ARTICLE 4
EXPENSES FOR FOURTH AMENDMENT
The provisions of Sections 4.1, 4.3, and 4.4 of the Original
Loan Agreement are hereby expressly made applicable to this
Fourth Amendment. Without in any manner limiting the foregoing,
Borrower shall pay all reasonable fees and expenses of Lender
incurred in connection with this Fourth Amendment, including
updated title coverages and Lenders' reasonable legal fees and
expenses, all of which shall, as and when advanced or incurred by
Lender, constitute additional indebtedness evidenced by the Notes
and secured by the Mortgage and other Loan Documents.
ARTICLE 5
MISCELLANEOUS
5.1 Captions
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The captions and headings of various Articles and Sections
of this Fourth Amendment and the Exhibits pertaining hereto are
for convenience only and are not to be considered as defining or
limiting in any way, the scope or intent of the provisions
hereof.
5.2 Amendment Controlling
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This Fourth Amendment, together with the Original Loan
Agreement as amended by the First Amendment, Second Amendment and
Third Amendment, shall be read together as a single agreement
governing the Original Loan and Supplemental Loan as an integrated
loan facility. In the event of a conflict between the provisions of
the Original Loan Agreement (as amended by the First Amendment, Second
Amendment and Third Amendment) and the provisions of this Fourth
Amendment, the provisions of this Fourth Amendment shall govern. This
Fourth Amendment and the other Loan Documents are intended to be
interpreted in a manner which renders their respective terms and
provisions consistent with one another;
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however, in the event of an inconsistency between this Fourth
Amendment and the other Loan Documents which cannot reasonably be
reconciled, this Fourth Amendment is intended to control. The
provisions of the Loan Documents are in full force and effect
except as amended herein and by the Third Guaranty Amendment, and
the Loan Documents as so amended are ratified and confirmed
hereby by Borrower.
5.3 Successors and Assigns
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This Fourth Amendment shall be binding upon the respective
successors and assigns of the parties hereto, and shall inure to
the benefit of the respective successors and assigns permitted
under Article 11 of the Loan Agreement.
5.4 Counterparts
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This Fourth Amendment may be executed in two or more
counterparts, each of which may be executed by one or more of the
parties hereto, but all of which, when taken together, shall
constitute but one agreement.
5.5 WAIVER OF JURY TRIAL
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LENDER AND BORROWER, BY THEIR EXECUTION HEREOF, EACH HEREBY
WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHT UNDER THIS FOURTH AMENDMENT OR ANY
OTHER LOAN DOCUMENTS RELATING THERETO OR ARISING FROM THE LENDING
RELATIONSHIP WHICH IS THE SUBJECT OF THIS AMENDMENT AND AGREE
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT
AND NOT BEFORE A JURY.
5.6 Continuation of Liens
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Nothing contained in this Fourth Amendment or any of the
various amendments and other documents being executed
concurrently herewith shall be construed to disturb, discharge,
cancel, impair or extinguish the indebtedness and obligations
evidenced by the Notes and secured by the Mortgage or other Loan
Documents or waive, release, impair, or affect the liens or
security interests created by the Mortgage or other Loan
Documents or the validity or priority thereof.
5.7 As-Built Plans
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The parties acknowledge that, due to the volume thereof,
Borrower has not delivered to Lender a full set of as-built Plans
and Specifications for the Project, but has instead permitted
Lender and Lender's Architect to inspect the same at the Project.
Borrower hereby agrees to retain at all times a full set of the
as-built Plans and Specifications for the Project at the
management office or other suitable location at the Project, to
permit Lender access thereto at all reasonable times as Lender
may request, and upon the occurrence of any Event of Default, to
deliver the same to Lender upon demand.
5.7 Recourse Provisions
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The provisions of SECTION 14.20 of the Original Loan
Agreement (as amended by the First Amendment and Second
Amendment) limiting Lender's recourse are applicable to this
Fourth Amendment, and the same are hereby incorporated herein by
this reference.
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5.8 Trustee Exculpation
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This Fourth Amendment is executed by American National Bank
and Trust Company of Chicago, not personally but solely as
Trustee as aforesaid, in the exercise of the power and authority
conferred upon and vested in it as such Trustee (and American
National Bank and Trust Company of Chicago hereby represents and
warrants that it possesses full power and authority to execute
this instrument). All the terms, provisions, stipulations,
covenants and conditions to be performed hereunder (whether or
not the same are expressed in terms of covenants, promises or
agreements), are undertaken by it solely as Trustee, as
aforesaid, and not individually, and no personal liability shall
be asserted to be enforceable against Trustee by reason of any of
the terms, provisions, stipulations, covenants and conditions
contained herein.
Signatures contained on following page
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IN WITNESS WHEREOF, Beneficiary, Trustee and Lender have
executed this Fourth Amendment as of the day and year first set
forth above.
BENEFICIARY: ZML-OLD ORCHARD
LIMITED PARTNERSHIP, an Illinois
limited partnership
By: ZML-OO Associates Limited
Partnership, a Delaware
limited partnership, its
General Partner
By: ZML-Old Orchard,
Inc., an Illinois
corporation, its General
Partner
By: -------------------------
Its ---------------------
TRUSTEE: AMERICAN
NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, not personally but as
Trustee aforesaid
By: -------------------------------------
Its ---------------------------------
LENDER: THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA, a New
Jersey corporation
By: -------------------------------------
Its ---------------------------------
Vice President
MELLON
BANK, N.A., as Trustee for First
Plaza Group Trust, a New York
Trust, as directed by General
Motors Investment Management
Corporation
By: -------------------------------------
Its ---------------------------------------
