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FIRST AMENDMENT TO CONSTRUCTION LOAN AGREEMENT
among
TAUBMAN MACARTHUR ASSOCIATES LIMITED PARTNERSHIP,
as Borrower,
BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK BRANCH, (successor in
interest to Bayerische Hypotheken- Und Wechsel-Bank Aktiengesellschaft, New
York Branch),
CIBC INC., HYPOVEREINSBANK - IRELAND,
BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN ISLANDS BRANCH,
COMERICA BANK and
THE OTHER BANKS AND FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTIES HERETO,
as Lenders,
and
BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK BRANCH, (successor in
interest to Bayerische Hypotheken- Und
Wechsel-Bank Aktiengesellschaft, New York Branch),
as Agent
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Dated as of April 23, 1999
FIRST AMENDMENT TO CONSTRUCTION LOAN AGREEMENT
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THIS FIRST AMENDMENT TO CONSTRUCTION LOAN AGREEMENT (the
"Amendment") is made as of the 23rd day of April, 1999 among TAUBMAN MACARTHUR
ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership ("Borrower"),
BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK BRANCH (successor in interest to
Bayerische Hypotheken- Und Wechsel-Bank Aktiengesellschaft, New York Branch),
the New York branch of a German banking corporation, as administrative agent (in
such capacity, the "Agent") for itself and the other banks and financial
institutions from time to time parties to the Construction Loan Agreement and
CIBC INC., HYPOVEREINSBANK - IRELAND, BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN
ISLANDS BRANCH, COMERICA BANK. Capitalized terms used but not otherwise defined
in this Amendment shall have the meaning assigned thereto in the Construction
Loan Agreement (defined below).
RECITALS
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A. Pursuant to the Construction Loan Agreement, dated October 28,
1997, among Borrower, Agent and the Lenders a party thereto (the "Construction
Loan Agreement"), Lenders have agreed to make loans to Borrower in order to
provide the financing for (i) the construction of a regional shopping mall to be
known as MacArthur Center and (ii) certain other costs, as described in the
Budget referred to in the Construction Loan Agreement.
B. Borrower has requested, and Agent and the Lenders have agreed, to
modify the terms of the Construction Loan Agreement in the manner set forth
below.
NOW, THEREFORE, in consideration of the premises, the mutual
covenants herein, and other good and valuable consideration, the parties hereto,
Lenders, Borrower and Agent hereby agree as follows:
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AGREEMENT
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SECTION 1. Defined Terms. Section 1.1 of the Construction Loan
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Agreement is hereby amended by amending and restating the following
definitions in their entirety as follows:
Agreement: This Agreement, as amended by the First Amendment to the
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Construction Loan Agreement, dated April 23, 1999, made among Borrower,
Lenders and Agent, as it may be further amended, supplemented or otherwise
modified from time to time.
Applicable Margin: with respect to each Type of Loan at any
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date, the applicable percentage per annum set forth below:
Eurodollar Loans 135 basis points
(1.35%)
Prime Rate Loans 50 basis points
(0.50%)
provided, with respect to the Second Extension Period, the then Applicable
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Margin shall be increased by 15 basis points (0.15%).
Commitment: As to any Lender, the obligations of such Lender to make
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Loans to Borrower hereunder in an aggregate principal amount not to exceed
the amount set forth next to such Lender's name on Schedule A attached.
Hypo: Bayerische Hypo- Und Vereinsbank AG, New York Branch
----
(successor in interest to Bayerische Hypotheken-Und Wechsel-Bank
Aktiengesellschaft, New York Branch).
Payment Guaranty: The Amended and Restated Payment Guaranty dated as
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of the date hereof between The Taubman Realty Group and Agent, as the same
may be further amended, supplemented or otherwise modified from time to
time.
Responsible Officer: Xxxx Xxxxx, Xxxxxx Xxxx and Xxxxx Xxxxx
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or such other individual as shall be named a Responsible Officer by
notice to Agent.
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SECTION 2. Additional Borrower Equity
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2.1 The following paragraphs are added to the end of Section 2.1:
"(c) Notwithstanding anything to the contrary in this Agreement, no
Lender shall be obligated to make additional Loans to the Borrower after the
date hereof until such time that Borrower has advanced from its own funds an
aggregate amount equal to $37,817,734 to pay for the costs of constructing and
equipping the Improvements included in the Budget, which advances shall be made
by Borrower strictly in accordance with the procedures for making Loan advances
set forth in Section 2.2(a) hereof."
SECTION 3. General Conditions.
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3.1 Except as specifically amended herein, all of the terms,
covenants and conditions and stipulations contained in the Construction Loan
Agreement are ratified and confirmed in all respects and shall continue to apply
with full force and effect.
3.2 The Borrower acknowledges and confirms that $98,101,938 is
outstanding under the Construction Loan Agreement and that the Borrower has no
set-offs, counterclaims or defenses to its obligations under the Construction
Loan Agreement, the Notes or any of the other Loan Documents.
3.3 This Amendment shall become effective as of the date first above
written when the Agent has received counterparts of this Amendment duly executed
by the Borrower and all the Lenders.
3.4 This Amendment shall not constitute a waiver or an amendment of
any other provision of the Construction Loan Agreement not expressly referred to
herein and shall not be construed as a waiver or consent to any further or
future action on the part of the Borrower that would require a waiver or consent
of the Lenders and the Agent. Except as expressly amended hereby, the provisions
of the Construction Loan Agreement are and shall remain in full force and
effect.
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3.5 This Amendment may be executed by the parties hereto in any
number of separate counterparts, each of which shall be deemed to be an
original, and all of which taken together shall be deemed to constitute one and
the same instrument.
3.6 THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPALS OF CONFLICT OF LAWS.
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TO CONFIRM THEIR AGREEMENT, this Amendment has been duly executed by
Agent, Lenders and Borrower as of the date first written above.
BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK
BRANCH
(successor in interest to Bayerische
Hypotheken- Und Wechsel-Bank
Aktiengesellschaft, New York Branch),
as Agent
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Managing Director
BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK
BRANCH
(successor in interest to Bayerische
Hypotheken- Und Wechsel-Bank
Aktiengesellschaft, New York Branch),
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Managing Director
CIBC INC.
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Xxxxx
0
XXXXXXXXXXXXXXX - XXXXXXX
By: /s/ X. Xxxxxx
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Name: X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Managing Director
BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN
ISLANDS BRANCH
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: First Vice President
By: /s/ X. Xxxxxxx
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Name: X. Xxxxxxx
Title: First Vice President
COMERICA BANK
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
TAUBMAN MACARTHUR ASSOCIATES LIMITED
PARTNERSHIP
By: The Taubman Realty Group Limited
Partnership, its general partner
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Authorized Signatory
SCHEDULE A
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Lender Commitment Amount
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HypoVereinsbank $48,000,000
CIBC 28,000,000
HypoVereinsbank - Ireland 20,000,000
Comerica 16,000,000
Bayerische Landesbank 8,000,000
