NINTH MODIFICATION OF MASTER CONSTRUCTION LOAN AGREEMENT
THIS NINTH MODIFICATION, dated and effective as of June 22, 2000, 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, 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, as modified by that certain Fourth Modification of Master
Construction Loan Agreement between Developer and Bank, dated December 30,
1998, as modified by that certain Fifth Modification of Master Construction
Loan Agreement between Developer and Bank, dated April 23, 1999, as modified
by that certain Sixth Modification of Master Construction Loan Agreement
between Developer and Bank, dated May 31, 1999, as modified by that certain
Seventh Modification of Master Construction Loan Agreement between Developer
and Bank, dated September 30, 1999, and as modified by that certain Eighth
Modification of Master Construction Loan Agreement between Developer and
Bank, dated May 10, 2000 (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:
a. Substituting the following in lieu of the existing
like defined terms:
"Approved Tenant" shall mean OfficeMax, Merchants Tire,
Walgreens, an Investment Grade Tenant which the Bank approves in its
sole discretion and any other retail tenant approved by Bank in its
sole discretion. The approval by Bank of an Investment Grade Tenant or
any other retail tenant as an Approved Tenant for a Project shall not
be deemed an approval of such party as an Approved Tenant for any other
Project.
"Debt Service Coverage Ratio" shall mean the ratio of (i)
projected total annual income to be received under the Lease for an
applicable Project (but assuming a five percent (5%) vacancy factor if
such Project is leased to Merchants Tire or the Project Loan being made
in respect of such Project is an Appraisal Exempt Project Loan),
defined as base rent, common area maintenance payments, insurance and
real estate tax reimbursements and miscellaneous sources, less
projected total annual expenses for such Project, defined as an annual
management fee in an amount equal to Three Percent (3%) of the
projected total annual income of such Project, an annual charge of Ten
Cents ($.10) per square foot of such Project for a capital reserve and
expense of common area maintenance, insurance, real estate taxes, and
non-capitalized repairs, to (ii) the projected total annual sum of all
interest payments and principal payments on the applicable Project Loan
which would be due and payable assuming the level amortization of such
Project Loan over a period equal to twenty five (25) years, at a per
annum interest rate equal to the most recent weekly average yield on
United States Treasury Securities adjusted to a constant maturity of
ten (10) years, plus (a) Two and Sixth Tenths Percent (2 6/10%), if
such Project is leased to an Approved Tenant other than Walgreens or an
Investment Grade Tenant or the Project Loan being made in respect of
such Project is an Appraisal Exempt Project Loan, or (b) Two and One
Quarter Percent (2 1/4 %), if such Project is leased to Walgreens or an
Investment Grade Tenant and the Project Loan being made in respect of
such Project is not an Appraisal Exempt Project Loan.
b. By adding the following defined term:
"Appraisal Exempt Project Loan" shall mean a Project Loan
designated as an Appraisal Exempt Project Loan pursuant to Section 2.09
hereof.
2. SECTION 2.01 OF THE LOAN AGREEMENT. The first sentence of
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 Thirty
Million Dollars ($30,000,000) outstanding at any time.
3. SECTION 2.06 OF THE LOAN AGREEMENT. Section 2.06 to the
Loan Agreement is hereby amended in its entirety to read as follows:
2.06. PROJECT LOAN MATURITY DATE. The term of a Project
Loan shall expire upon the earlier of (the "Project Loan Maturity
Date"): (a) twelve (12) months from its Closing Date; and (b) the sale
or refinance of the Project in respect of which such Project Loan was
made pursuant to the Project Purchase Agreement or permanent loan
commitment, as the case may be, for such Project, unless such Project
Loan is sooner paid pursuant to the terms hereof; provided however, if
such Project Loan has been designated as an Appraisal Exempt Project
Loan in accordance with the terms of this Loan Agreement, the Project
Loan Maturity Date
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for such Project Loan shall be the earlier of: (y) six (6) months from
its Closing Date; and (z) the sale or refinance of the Project in
respect of which such Project Loan was made pursuant to the Project
Purchase Agreement or permanent loan commitment, as the case may be,
for such Project, unless such Project Loan is sooner paid pursuant to
the terms hereof. Notwithstanding the foregoing, if a Project Loan has
been designated as an Appraisal Exempt Project Loan in accordance with
the terms of this Loan Agreement, the Project Loan Maturity Date for
such Project Loan may be extended to nine (9) months from its Closing
Date upon the satisfaction of the following conditions: (a) the
Borrower of such Project Loan shall give the Bank thirty (30) days'
prior written request for such extension; (b) an Event of Default is
not then continuing in respect of such Project Loan; (c) such Borrower
pays to the Bank an extension fee in an amount equal to One Eighth of
One Percent (1/8 of 1%) of the outstanding principal balance of such
Project Loan at the time of such extension; (d) the Tenant of the
Project in respect of which such Project Loan was made has occupied
such Project and has commenced the payment of rent thereunder pursuant
to the Lease for such Project and the Bank shall have received an
estoppel letter from such Tenant in respect of such Project in a form
reasonably satisfactory to the Bank; and (e) either (1) Borrower has
received a commitment for permanent financing for such Project from a
lender reasonably acceptable to Bank in an amount equal to not less
than the amount of such Project Loan, which permanent commitment shall
be reasonably satisfactory to Bank, and all conditions set forth in
such permanent commitment to the funding of the permanent loan to be
made thereunder have been satisfied, other than the completion of
normal and customary due diligence required by the lender thereunder
(e.g. review and approval of survey, title and environmental), or (2)
Borrower has entered into a Project Purchase Agreement with respect to
such Project for an amount equal to not less than the amount of such
Project Loan, and all conditions set forth in such Project Purchase
Agreement to the purchase of such Project have been satisfied, other
than the completion of normal and customary due diligence required by
the Purchaser thereunder (e.g. review and approval of survey, title and
environmental).
4. SECTION 2.09 OF THE LOAN AGREEMENT. The Loan Agreement is
hereby modified by adding the following Section 2.09:
2.09 APPRAISAL EXEMPT PROJECT LOAN. Subject to the terms
and conditions hereof, Developer may designate a Project Loan as an
"Appraisal Exempt Project Loan." Developer may not designate a Project
Loan as an Appraisal Exempt Project Loan if:
(a) such Project Loan exceeds Two Million Dollars
($2,000,000); or
(b) if the aggregate of the amount of such Project Loan and
the amount of all other Project Loans then designated as Appraisal
Exempt Project Loans would be greater than Eight Million Dollars
($8,000,000); or
(c) if such Project Loan is being made in respect of a
Non-Committed Project (as hereinafter defined), and the aggregate of
the amount of such Project Loan and the amount of all other Appraisal
Exempt Project Loans then outstanding and
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secured by Non-Committed Projects would exceed Five Million Dollars
($5,000,000).
For purposes of calculating the aggregate amount of Project Loans in
subparagraphs (a), (b) and (c) above, the maximum principal amounts
available thereunder shall be used, and not the then outstanding
principal balances thereof. For the purposes hereof, a Project shall be
a "Non-Committed Project" if there is not then in effect in respect of
such Project (y) a fully executed commitment for permanent financing
for such Project from a lender reasonably acceptable to Bank in an
amount equal to not less than the amount of the Project Loan being
requested for such Project, all conditions of which commitment to the
funding of the permanent loan to be made thereunder (other than the
completion of normal and customary due diligence required by the lender
thereunder (e.g., review and approval of survey, title, environmental))
have been satisfied; or (z) an executed Project Purchase Agreement with
respect to such Project for an amount equal to not less than the amount
of the Project Loan being requested for such Project, all conditions of
which Project Purchase Agreement to the purchase of such Project (other
than the completion of normal and customary due diligence required by
the Purchaser thereunder (e.g., review and approval of survey, title
and environmental)) have been satisfied.
5. SECTION 4.01 (q) OF THE LOAN AGREEMENT. Subparagraph (q) of
Section 4.01 of the Loan Agreement is hereby modified in its entirety to read
as follows:
q. APPRAISAL. The Bank shall have received an appraisal
of the discounted sellout value and fair market value of the Project in
respect of which of such Project Loan is being made (including interest
carry), on an assumed completion basis (the "Appraisal"). The Appraisal
shall be made by an appraiser approved by Bank, shall be in form and
substance satisfactory to Bank and shall be in compliance with all
applicable laws, rules and regulations. Such Borrower shall not be
required to provide an Appraisal for a Project, however, if the Project
Loan being made in respect of such Project has been designated as an
Appraisal Exempt Project Loan pursuant to Section 2.09 hereof.
6. SECTION 4.01 (aa) OF THE LOAN AGREEMENT. Subparagraph (aa) of
Section 4.01 of the Loan Agreement is hereby modified in its entirety to read as
follows:
aa. DEBT SERVICE COVERAGE. If such Project Loan is an
Appraisal Exempt Project Loan, the Debt Service Coverage for the
Project in respect of which such Project Loan is being made is no less
than 1.30 to 1.0. If the Project in respect of which such Project Loan
is being made is being leased to OfficeMax or another Approved Tenant
which is not Walgreens or an Investment Grade Tenant and such Project
Loan is not an Appraisal Exempt Project Loan, the Debt Service Coverage
for such Project is no less than 1.25 to 1.0. If the Project in respect
of which such Project Loan is being made is being leased to Walgreens
or an Investment Grade Tenant and such Project Loan is not an Appraisal
Exempt Project Loan, the Debt Service Coverage for such Project is no
less than 1.10 to 1.0.
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7. SECTION 4.01 (cc) OF THE LOAN AGREEMENT. Section 4.01 of
the Loan Agreement is hereby modified to add the following subparagraph (cc):
cc. LIMITATION ON PROJECTS LEASED TO AN APPROVED TENANT.
Bank shall not be obligated to make a Project Loan in respect of a
Project which is leased to an Approved Tenant, if by making such
Project Loan, the aggregate amount of Project Loans then outstanding
(including the Project Loan at issue) in respect of Projects leased to
such Approved Tenant 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.
8. SECTION 5.01 (g) (PROJECT LOAN AMOUNT) OF THE LOAN
AGREEMENT. Subparagraph (g) of Section 5.01 of the Loan Agreement is hereby
modified in its entirety to read as follows:
g. PROJECT LOAN AMOUNT. Notwithstanding any other
provision contained herein to the contrary, the maximum principal
amount of a Project Loan shall not exceed an amount equal to the lesser
of: (a) the Appraised Value Limit (as hereinafter defined) of the
Project in respect of which such Project Loan is being made; (b) the
purchase price payable by the buyer under the Project Purchase
Agreement in place (if in place) for such Project; and (c) the Project
Costs (excluding any development fee) for such Project. The Appraised
Value Limit for a Project shall be equal to (i) Seventy Five Percent
(75%) of the appraised value of such Project (as determined by the
Appraisal therefore), if such Project is leased to an Approved Tenant
other than Merchants Tire, OfficeMax, Walgreens or an Investment Grade
Tenant, or if the Project Loan being made in respect of such Project is
an Appraisal Exempt Project Loan; or (ii) Eighty Percent (80%) of the
appraised value of such Project (as determined by the Appraisal
therefore), if such Project is leased to Merchants Tire or OfficeMax
and the Project Loan being made in respect of such Project is not an
Appraisal Exempt Loan; or (iii) Ninety Percent (90%) of the appraised
value of such Project (as determined by the Appraisal therefore), if
such Project is leased to Walgreens or an Investment Grade Tenant and
the Project Loan being made in respect of such Project is not an
Appraisal Exempt Project Loan.
9. SECTION 5.01(h) OF THE LOAN AGREEMENT. Section 5.01(h) of
the Loan Agreement is hereby modified by adding the following provision
thereto:
Notwithstanding the foregoing, if such Project Loan has been
designated as an Appraisal Exempt Project Loan in accordance with the
terms hereof, the Borrower of such Project Loan must invest in the
Project in respect of which such Project Loan is being made, cash in an
amount equal to not less than Twenty Percent (20%) of the total Project
Costs for such Project.
10. APPROVED TENANT. If there occurs after the date hereof a
material adverse change in the financial condition of a Specified Tenant (as
hereinafter defined), such Specified Tenant shall
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thereafter no longer be an Approved Tenant for the purposes of any future
Project and Project Loans; provided, however, that Bank, in its sole
discretion, may approve such Specified Tenant as an Approved Tenant for a
specific Project. For the purposes hereof, each of OfficeMax, Merchants and
Walgreens shall be a "Specified Tenant." The foregoing provision shall in no
way modify, amend or otherwise affect Bank's right under the Loan Agreement
to approve or disapprove, in its sole discretion, a Project Loan.
11. 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.
12. 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.
13. 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.
14. 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 Ninth
Modification of Master Construction Loan Agreement to be duly executed as of
the date and year first above written.
THIS SPACE INTENTIONALLY LEFT BLANK.
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SIGNATURE PAGE OF DEVELOPER
TO
NINTH MODIFICATION OF MASTER LOAN AGREEMENT
"DEVELOPER"
XXXXXXXX XXXX BTS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Printed: Xxxxxxx X. Xxxx
--------------------------------
Title: Vice President
----------------------------------
STATE OF COLORADO )
) SS:
CITY & COUNTY OF DENVER)
Before me, a Notary Public in and for said County and State,
personally appeared Xxxxxxx X. Xxxx, 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 23rd day of June, 2000.
/s/ Xxxx Xxxxxxxxx
-----------------------------------------
Notary Public - Signature
Xxxx Xxxxxxxxx
-----------------------------------------
Notary Public - Printed
My Commission Expires: My County of Residence:
6/30/2001 Denver
------------------------- -----------------------------------------
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SIGNATURE PAGE OF BANK
TO
NINTH MODIFICATION OF MASTER LOAN AGREEMENT
"BANK"
KEYBANK NATIONAL ASSOCIATION, a national
banking association
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Printed: Xxxxxxx Xxxxxxx
---------------------------------
Title: Closing Officer
-----------------------------------
STATE OF INDIANA )
) SS:
COUNTY OF XXXXXX )
Before me, a Notary Public in and for said County and State,
personally appeared Xxxxxxx Xxxxxxx, known to me to be a Closing Officer 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 28th day of June, 2000.
/s/ Xxxxxx X. Xxxx
------------------------------------------
Notary Public - Signature
Xxxxxx X. Xxxx
------------------------------------------
Notary Public - Printed
My Commission Expires: My County of Residence:
11/28/2007 Xxxxxx
----------------------------- ------------------------------------------
This instrument was prepared by Xxxxxx X. Xxxxxxx, Attorney at Law, JOHNSON,
SMITH, XXXXX, & XXXXX, LLP, Xxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx,
Xxxxxxx 00000.
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