SIXTH MODIFICATION OF MASTER CONSTRUCTION LOAN AGREEMENT
THIS SIXTH MODIFICATION, dated and effective as of May 31, 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, 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, and as
modified by that certain Fifth Modification of Master Construction Loan
Agreement between Developer and Bank, dated April 23, 1999 (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. DEFINITIONS 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:
"Approved Tenant" shall mean OfficeMax, Inc. and any other tenant
approved by Bank in its sole discretion.
"Debt Service Coverage Ratio" shall mean the ratio of (i) projected
total annual income to be received under the Lease for an applicable
Project, 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 the lesser of (a) twenty (20) years or (b) the term of
the Lease for the Project, plus five (5) years, at a per annum interest
rate equal to One and Three Quarters Percent (1.75%) above the most
recent weekly average yield on United States Treasury Securities
adjusted to a constant maturity of ten (10) years.
"Plans and Specifications" shall mean the plans and specifications
for the construction of the Improvements on an applicable Project Site
prepared by the Architect therefor and approved on or prior to the date
of the initial Advance for the applicable Project by the Borrower, the
Bank, the Approved Tenant leasing such Project and the Contractor,
including all working drawings and shop drawings prepared for use in
connection therewith, as the same may be finalized, supplemented,
modified or amended from time to time by Change Orders permitted
hereunder.
"Project Loan Commitment Expiration Date" shall mean September 30,
1999.
2. REFERENCE TO OFFICEMAX IN THE LOAN AGREEMENT. The reference to
"OfficeMax" is hereby deleted in the following sections contained in the Loan
Agreement:
Section 4.01 (e)(ii)
Section 4.01 (v)(ii)
Section 6.05
Section 8.01 (l)
Number 6 of Exhibit B
3. SECTION 4.01 OF THE LOAN AGREEMENT. Paragraph n. of Section 4.01
of the Loan Agreement shall be amended in its entirety to read as follows:
n. CONSTRUCTION CONTRACT. Such Borrower shall have furnished to
the Bank for its review and approval a copy of the executed Construction
Contract for the construction of the Improvements forming a part of the
Project in respect of which such Project Loan is being made in
accordance with the Plans and Specifications therefor for a maximum
fixed price not exceeding an amount approved by the Bank. Such Borrower
shall also furnish to the Bank copies of all other Major Contracts in
respect of such Project. Such Major Contracts shall be subject to
reasonable approval by the Bank.
Such Construction Contract shall further provide:
i. A provision that with final payment such Contractor shall
deliver to such Borrower a complete release of liens signed by such
Contractor and all subcontractors;
ii. A provision that no change orders involving an increase
in costs of Fifty Thousand Dollars ($50,000) or more for a single
change order or One Hundred Thousand Dollars ($100,000) or more in
the aggregate shall
be effective without the prior written consent of the Bank and, to
the extent required under the Lease for such Project, the prior
written consent of the Approved Tenant under such Lease (this
requirement shall be satisfied if the provision is included in the
Contractor's Letter for such Project);
iii. A provision for not less than Ten Percent (10%) retainage
in connection with interim payments to each subcontractor (but not
for payments to suppliers unless Bank determines in its reasonable
discretion that such retainage as to suppliers is appropriate)
until the Improvements forming a part of such Project are
substantially completed; and
iv. If provided for under the laws of the state in which such
Project is located, a no-lien provision.
4. SECTION 7.04 OF THE LOAN AGREEMENT. Section 7.04 of the
Loan Agreement shall be amended in its entirety to read as follows:
7.04. CHANGE ORDERS. Without the Bank's prior written consent,
such Borrower will not execute, or permit the performance of work on the
Project in respect of which such Project Loan is being made, or the
furnishing of Materials therefor pursuant to any Change Order involving
an increase in the Direct Costs of such Project of Fifty Thousand
Dollars ($50,000) or more for single Change Orders or One Hundred
Thousand Dollars ($100,000) or more in the aggregate or involving any
fundamental change in the architectural, mechanical or structural design
of any portion of the Improvements forming a part of such Project, or
involving any materially adverse change in the quality of workmanship or
Materials in such Improvements or causing any delay in completion of
construction of such Improvements beyond the Completion Date therefor.
Such Borrower will deliver copies of all Change Orders to the Bank
promptly following their execution. Such Borrower will not execute or
permit the performance of work on such Project or the furnishing of
Materials therefor pursuant to a Change Order without the prior written
consent of the Approved Tenant leasing such Project, if such consent is
required under the Lease for such Project.
5. 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.
6. 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.
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7. 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.
8. 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 Sixth
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
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Title: Vice President
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STATE OF COLORADO )
) 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 28th day of July, 1999.
/s/ Xxx X. Xxxxxx
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Notary Public - Signature
Xxx X. Xxxxxx
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Notary Public - Printed
My Commission Expires: My County of Residence:
10/06/02 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 3rd day of August, 1999.
/s/ Xxxx X. Xxxxxx
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Notary Public - Signature
Xxxx X. Xxxxxx
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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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