THIRD MODIFICATION OF MASTER CONSTRUCTION LOAN AGREEMENT
THIS THIRD MODIFICATION, dated and effective as of June 9, 1998, is made
and entered into by and between XXXXXXXX XXXX BTS, INC., a Delaware corporation
having a notice address of 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000
("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 (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. PARAGRAPH 1.01 OF THE LOAN AGREEMENT. Paragraph 1.01 of the Loan
Agreement is hereby modified by substituting the following in lieu of the
existing like defined terms:
"Loan" shall mean the aggregate amount of the Project Loans approved
by Bank pursuant to this Agreement, which amount shall in no event exceed
the principal sum of Twenty Million Dollars ($20,000,000) outstanding at
any time.
"Project Loan Documents" shall mean this Agreement, the Project
Agreement, the Project Note, the Mortgage, the Assignment of Rents, the
Contract Assignment, the Collateral Assignment of Purchase Agreement (if
executed in connection therewith), the Collateral Pledge Agreement (if
executed in connection therewith), the Developer Guaranty, the Affiliate
Guarantor Transaction Guaranty executed in connection therewith, the
Affiliate Guarantor Completion Guaranty executed in connection therewith,
the Mortgagor's Affidavit, the Environmental Indemnity and any and all
other documents executed and/or delivered in connection with a Project
Loan.
"Project Loan Commitment Expiration Date" shall mean May 31, 1999.
2. EXHIBIT L. The Loan Agreement is hereby modified by substituting
EXHIBIT L attached to this Modification for EXHIBIT L attached to the Loan
Agreement.
3. SECTION 2.01 OF THE LOAN AGREEMENT. Section 2.01 of the Loan
Agreement is hereby modified in its entirety to read as follows:
2.01. PROJECT LOAN. Subject to the terms and conditions
hereof, and relying upon the representations and warranties herein set
forth, the Bank agrees to make Project Loans to the Borrower(s) from
time to time in an aggregate principal amount not to exceed Twenty
Million Dollars ($20,000,000) outstanding at any time. In no event
shall the Bank be obligated to make a Project Loan in respect of a
Project for which there is not then in effect a Project Purchase
Agreement, if by making such Project Loan, the aggregate amount of
Project Loans (including the Project Loan at issue) in respect of
Projects for which there are not then in effect Project Purchase
Agreements would be greater than Fifteen Million Dollars
($15,000,000). For purposes of calculating the aggregate amount of
Project Loans in the preceding sentence, the maximum principal amounts
available thereunder shall be used, and not the then outstanding
principal balances thereof. In no event shall the Bank be obligated
to make any Project Loan on or after the Project Loan Commitment
Expiration Date. Notwithstanding the foregoing, subject to the terms
and conditions hereof, the Bank shall fund after the Project Loan
Commitment Expiration Date any Project Loan for which the Closing has
occurred prior to the Project Loan Commitment Expiration Date.
4. SUBPARAGRAPHS 4.01(e)(v) AND 4.01(e)(vi) OF THE LOAN AGREEMENT.
Subparagraphs 4.01(e)(v) and (e)(vi) of the Loan Agreement are hereby modified
in their entirety to read as follows:
v. If such Borrower has then entered into a Project
Purchase Agreement for the Project in respect of which such
Project Loan is being made, a Collateral Pledge Agreement
pursuant to which such Borrower shall have collaterally assigned
to the Bank all of the right, title and interest of such Borrower
in and to the Deposit made under such Project Purchase Agreement;
vi. If such Borrower has then entered into a Project
Purchase Agreement for the Project in respect of which such
Project Loan is being made, a Collateral Assignment of Purchase
Agreement pursuant to which such Borrower shall have collaterally
assigned to the Bank all the right, title and interest of such
Borrower in, to and under such Purchase Agreement;
5. SECTION 4.01 (y) OF THE LOAN AGREEMENT. Section 4.01 (y) of the Loan
Agreement is hereby modified in its entirety to read as follows:
y. PROJECT PURCHASE AGREEMENT. If such Borrower has then entered
into a Project Purchase Agreement for the Project in respect of which such
Project loan is being made, such Borrower shall have furnished to the Bank
an executed copy of such Purchase Agreement together with evidence that the
Deposit required thereunder has been made.
2
6. SECTION 6.14 OF THE LOAN AGREEMENT. The Loan Agreement is hereby
modified to add the following Section 6.14.
6.14 PROJECT PURCHASE AGREEMENT. If after the Closing of such
Project Loan, such Borrower enters into a Project Purchase Agreement for
the Project in respect of which such Project Loan is being made, such
Borrower shall provide to the Bank:
a. A copy of such Project Purchase Agreement, together with
evidence that the Deposit required thereunder has been made;
b. An executed Collateral Assignment of Purchase Agreement
pursuant to which such Borrower shall have collaterally assigned to
the Bank all the right, title and interest of such Borrower in, to and
under such Project Purchase Agreement; and
c. An executed Collateral Pledge Agreement pursuant to which
such Borrower shall have collaterally assigned to the Bank all of the
right, title and interest of such Borrower in and to the Deposit made
under such Project Purchase Agreement.
7. SECTION 7.06 OF THE LOAN AGREEMENT. Section 7.06 of the Loan
Agreement is hereby modified in its entirety to read as follows:
7.06 LEASE/PROJECT PURCHASE AGREEMENT. Such Borrower will not
modify, amend, alter, terminate or cancel the Lease for the Project in
respect of which such Project Loan is being made, or assign, transfer,
pledge or encumber any of its right, title or interest thereunder,
without the Bank's prior written consent. If such Borrower enters into
a Project Purchase Agreement for such Project, such Borrower will not
modify, amend, alter, terminate or cancel such Project Purchase
Agreement, or assign, transfer, pledge or encumber any of its right,
title or interest thereunder, without the Bank's prior written consent.
8. SECTION 8.04 OF THE LOAN AGREEMENT. The Loan Agreement is hereby
modified to add the following Section 8.04:
8.04. SPECIAL REMEDY/AFFILIATE GUARANTOR TRANSACTION GUARANTY. If
Xxxxxxxx Xxxx has executed an Affiliate Guarantor Transaction Guaranty in
connection with a Project Loan, and Xxxxxxxx Xxxx breaches or is in default
under any financial covenant set forth in Section 18 of such Affiliate
Guarantor Transaction Guaranty, then within sixty (60) days after the date
of the occurrence of such breach or default, unless such Project Loan is an
Exempt Project Loan (as hereinafter defined):
a. the amount of such Project Loan available for borrowing
shall be permanently reduced by an amount equal to (a) Ten Percent
(10%), MULTIPLIED by (b) the prospective value upon completion and
prospective value upon stabilization by the income capitalization
approach of the Project in respect of which such Project Loan is being
made, as determined pursuant to the Appraisal furnished to the Bank on
such Project pursuant to Section 4.01(a) of this Loan Agreement, and
upon such
3
reduction, the Borrower under such Project Loan shall comply with the
terms of Section 5.01(d) of this Loan Agreement; or
b. the Borrower under such Project Loan shall enter into a
Project Purchase Agreement for the Project in respect of which such
Project Loan is being made, which Project Purchase Agreement shall be
reasonably satisfactory to Bank, and satisfy the requirements of
Section 6.14 of this Loan Agreement.
For the purposes hereof, an "Exempt Project Loan" is a Project Loan which
is designated by Developer as an Exempt Project Loan. There may be no more than
two (2) Exempt Project Loans at any time. Developer shall not be entitled to
designate a Project Loan as an Exempt Project Loan if an Event of Default is
then continuing under such Project Loan.
9. 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.
10. 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.
11. 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.
12. 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.
4
IN WITNESS WHEREOF, Developer and Bank have caused this Third 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/ Xxxxxxx X. Xxx
-------------------------------------
Printed: Xxxxxxx X. Xxx
--------------------------------
Title: Vice President
----------------------------------
"BANK"
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Printed: Xxxxxxxx X. Xxxxx
--------------------------------
Title: Vice President
----------------------------------
5
CONSENT OF BORROWER
The undersigned, being a Borrower under the Project Loan (as each such term
is defined in the Master Construction Loan Agreement (as defined in the
foregoing Third Modification of Master Construction Loan Agreement)) from Bank
to undersigned hereby consents and agrees to the modifications to the Master
Construction Loan Agreement set forth in the foregoing Third Modification of
Master Construction Loan Agreement and agrees to be bound thereby.
Executed effective as of the 9th day of June, 1998.
TCC-BTS SAVANNAH L.L.C., a Delaware
limited liability company
By: Xxxxxxxx Xxxx, BTS, Inc., a Delaware
corporation, Its Managing Member
By: /s/ Xxxxxxx X. Xxx
-----------------------------------
Printed: Xxxxxxx X. Xxx
------------------------------
Title: Vice President
--------------------------------
CONSENT OF BORROWER
The undersigned, being a Borrower under the Project Loan (as each such term
is defined in the Master Construction Loan Agreement (as defined in the
foregoing Third Modification of Master Construction Loan Agreement)) from Bank
to undersigned hereby consents and agrees to the modifications to the Master
Construction Loan Agreement set forth in the foregoing Third Modification of
Master Construction Loan Agreement and agrees to be bound thereby.
Executed effective as of the 9th day of June, 1998.
TCC-BTS COEUR D'ALENE OM, INC., a Delaware
corporation
By: /s/ Xxxxxxx X. Xxx
--------------------------------
Printed: Xxxxxxx X. Xxx
---------------------------
Title: Vice President
-----------------------------
CONSENT OF BORROWER
The undersigned, being a Borrower under the Project Loan (as each such term
is defined in the Master Construction Loan Agreement (as defined in the
foregoing Third Modification of Master Construction Loan Agreement)) from Bank
to undersigned hereby consents and agrees to the modifications to the Master
Construction Loan Agreement set forth in the foregoing Third Modification of
Master Construction Loan Agreement and agrees to be bound thereby.
Executed effective as of the 9th day of June, 1998.
TCC-BTS XXXXX L.L.C., a Delaware limited liability
company
By: Xxxxxxxx Xxxx, BTS, Inc., a Delaware
corporation, Its Managing Member
By: /s/ Xxxxxxx X. Xxx
------------------------------------
Printed: Xxxxxxx X. Xxx
-------------------------------
Title: Vice President
---------------------------------
REAFFIRMATION OF GUARANTY
The undersigned ("Guarantor"), as the guarantor of the Project Loan (as
defined in the Master Construction Loan Agreement (as defined in the foregoing
Third Modification of Master Construction Loan Agreement)) made prior to the
date hereof to TCC-BTS Savannah L.L.C., hereby consents to the foregoing Third
Modification of Master Construction Loan Agreement and agrees that the execution
and the performance of such Third Modification of Master Construction Loan
Agreement shall not in any way affect, impair, discharge, relieve or release the
obligations of the undersigned under its (i) Transaction Guaranty, dated
February 18, 1998 (the "Transaction Guaranty") and (ii) Guaranty of Completion
of Improvements Pursuant to Loan Agreement, dated February 18, 1998 (the
"Completion Guaranty") in respect of such Project Loan, which Transaction
Guaranty and Completion Guaranty are hereby ratified, confirmed and reaffirmed
in all respects and are hereby extended upon its same terms consistent with such
Third Modification of Master Construction Loan Agreement. Said Transaction
Guaranty and Completion Guaranty shall continue in full force and effect until
all obligations in respect of such Project Loan are fully paid and performed.
Executed effective as of the 9th day of June, 1998.
XXXXXXXX XXXX MW, INC.,
A DELAWARE CORPORATION
By: /s/ Xxxxxxx X. Xxx
-------------------------------------
Printed Name: Xxxxxxx X. Xxx
----------------------------
Title: Vice President
-----------------------------------
REAFFIRMATION OF GUARANTY
The undersigned ("Guarantor"), as the guarantor of the Project Loans (as
defined in the Master Construction Loan Agreement (as defined in the foregoing
Third Modification of Master Construction Loan Agreement)) made as of the date
hereof, hereby consents to the foregoing Third Modification of Master
Construction Loan Agreement and agrees that the execution and the performance of
such Third Modification of Master Construction Loan Agreement shall not in any
way affect, impair, discharge, relieve or release the obligations of the
undersigned under its contracts of guaranty in respect of such Project Loan,
which contracts of guaranty are hereby ratified, confirmed and reaffirmed in all
respects and are hereby extended upon the same terms consistent with such Third
Modification of Master Construction Loan Agreement. Said contracts of guaranty
shall continue in full force and effect until all obligations in respect of such
Project Loans are fully paid and performed.
Executed effective as of the 9th day of June, 1998.
XXXXXXXX XXXX BTS, INC.,
A DELAWARE CORPORATION
By: /s/ Xxxxxxx X. Xxx
-------------------------------------
Printed Name: Xxxxxxx X. Xxx
---------------------------
Title: Vice President
----------------------------------
REAFFIRMATION AND MODIFICATION OF GUARANTY
The undersigned ("Guarantor"), as the guarantor of the Project Loan (as
defined in the Master Construction Loan Agreement (as defined in the foregoing
Third Modification of Master Construction Loan Agreement)) made to TCC-BTS Xxxxx
L.L.C., hereby consents to the foregoing Third Modification of Master
Construction Loan Agreement and agrees that the execution and the performance of
such Third Modification of Master Construction Loan Agreement shall not in any
way affect, impair, discharge, relieve or release the obligations of the
undersigned under its (i) Transaction Guaranty, dated June 1, 1998 (the
"Transaction Guaranty") and (ii) Guaranty of Completion of Improvements Pursuant
to Loan Agreement, dated June 1, 1998 (the "Completion Guaranty") in respect of
such Project Loan, which Transaction Guaranty and Completion Guaranty are hereby
ratified, confirmed and reaffirmed in all respects and are hereby extended upon
its same terms consistent with such Third Modification of Master Construction
Loan Agreement. Said Transaction Guaranty and Completion Guaranty shall
continue in full force and effect until all obligations in respect of such
Project Loan are fully paid and performed.
Guarantor hereby agrees that the Transaction Guaranty is hereby modified to
add the following paragraph 18:
18. Guarantor agrees that, while and so long as this Guaranty remains
outstanding:
a. Guarantor shall not permit Equity Value, as of the end of any
Fiscal Quarter, to be less than Two Hundred Fifty Million Dollars
($250,000,000);
b. Guarantor shall not permit the Total Leverage Ratio, as of the
end of any Fiscal Quarter, to exceed 4.0 to 1.0;
c. Guarantor shall not permit the Interest Coverage Ratio, as of the
end of any Fiscal Quarter, to be less than 3.0 to 1.0.
d. Guarantor shall not permit Liquid Assets, as of the end of any
Fiscal Quarter, to be less than Fifteen Million Dollars ($15,000,000); and
e. Guarantor shall not permit the ratio of Current Assets to Current
Liabilities, as of the end of any Fiscal Quarter, to be less than 1.5 to
1.0.
Guarantor shall provide to Bank within sixty (60) days after the end of
each Fiscal Quarter of Guarantor a covenant compliance worksheet in a form
approved by Bank for Bank's use in determining Guarantor's compliance with the
above-referenced covenants. All defined terms used in this Paragraph 18, but
not defined in this Guaranty, shall have the meanings assigned to such terms in
that certain Credit Agreement, dated as of December 1, 1997, among Guarantor,
the Lenders listed therein, NationsBank of Texas, N.A. and Bankers Trust Company
as amended from time to time (collectively, the "Guarantor's $150,000,000 Credit
Agreement"). All defined terms in Section 1.1 of the Guarantor's $150,000,000
Credit Agreement are incorporated herein by reference to the extent such terms
are necessary for the interpretation of any defined terms used in this Paragraph
18.
Executed effective as of the 9th day of June, 1998.
XXXXXXXX XXXX COMPANY,
A DELAWARE CORPORATION
By: /s/ Xxxxxxx X. Xxx
--------------------------------------
Printed Name: Xxxxxxx X. Xxx
----------------------------
Title: Executive Vice President
-----------------------------------
By: /s/ XX X. Xxxxxx
--------------------------------------
Printed Name: XX X. Xxxxxx
----------------------------
Title: Executive Vice President/Treasurer
-----------------------------------
REAFFIRMATION AND MODIFICATION OF GUARANTY
The undersigned ("Guarantor"), as the guarantor of the Project Loan (as
defined in the Master Construction Loan Agreement (as defined in the foregoing
Third Modification of Master Construction Loan Agreement)) made to TCC-BTS Coeur
D'Alene OM, Inc., hereby consents to the foregoing Third Modification of Master
Construction Loan Agreement and agrees that the execution and the performance of
such Third Modification of Master Construction Loan Agreement shall not in any
way affect, impair, discharge, relieve or release the obligations of the
undersigned under its (i) Transaction Guaranty, dated May 12, 1998 (the
"Transaction Guaranty") and (ii) Guaranty of Completion of Improvements Pursuant
to Loan Agreement, dated May 12, 1998 (the "Completion Guaranty") in respect of
such Project Loan, which Transaction Guaranty and Completion Guaranty are hereby
ratified, confirmed and reaffirmed in all respects and are hereby extended upon
its same terms consistent with such Third Modification of Master Construction
Loan Agreement. Said Transaction Guaranty and Completion Guaranty shall
continue in full force and effect until all obligations in respect of such
Project Loan are fully paid and performed.
Guarantor hereby agrees that the Transaction Guaranty is hereby modified to
add the following paragraph 18:
18. Guarantor agrees that, while and so long as this Guaranty remains
outstanding:
a. Guarantor shall not permit Equity Value, as of the end of any
Fiscal Quarter, to be less than Two Hundred Fifty Million Dollars
($250,000,000);
b. Guarantor shall not permit the Total Leverage Ratio, as of the
end of any Fiscal Quarter, to exceed 4.0 to 1.0;
c. Guarantor shall not permit the Interest Coverage Ratio, as of the
end of any Fiscal Quarter, to be less than 3.0 to 1.0.
d. Guarantor shall not permit Liquid Assets, as of the end of any
Fiscal Quarter, to be less than Fifteen Million Dollars ($15,000,000); and
e. Guarantor shall not permit the ratio of Current Assets to Current
Liabilities, as of the end of any Fiscal Quarter, to be less than 1.5 to
1.0.
Guarantor shall provide to Bank within sixty (60) days after the end of
each Fiscal Quarter of Guarantor a covenant compliance worksheet in a form
approved by Bank for Bank's use in determining Guarantor's compliance with the
above-referenced covenants. All defined terms used in this Paragraph 18, but
not defined in this Guaranty, shall have the meanings assigned to such terms in
that certain Credit Agreement, dated as of December 1, 1997, among Guarantor,
the Lenders listed therein, NationsBank of Texas, N.A. and Bankers Trust Company
as amended from time to time (collectively, the "Guarantor's $150,000,000 Credit
Agreement"). All defined terms in Section 1.1 of the Guarantor's $150,000,000
Credit Agreement are incorporated herein by reference to the extent such terms
are necessary for the interpretation of any defined terms used in this Paragraph
18.
Executed effective as of the 9th day of June, 1998.
XXXXXXXX XXXX COMPANY,
A DELAWARE CORPORATION
By: /s/ Xxxxxxx X. Xxx
--------------------------------------
Printed Name: Xxxxxxx X. Xxx
----------------------------
Title: Executive Vice President
-----------------------------------
By: /s/ XX X. Xxxxxx
--------------------------------------
Printed Name: XX X. Xxxxxx
----------------------------
Title: Executive Vice President/Treasurer
-----------------------------------
