SECOND MODIFICATION OF MASTER CONSTRUCTION LOAN AGREEMENT
THIS SECOND MODIFICATION, dated and effective as of May 12, 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, dated September 15, 1997 (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. Adding the following defined terms:
"Affiliate Guarantor" shall mean each of Xxxxxxxx Xxxx MW and Xxxxxxxx
Xxxx.
"Affiliate Guarantor Completion Guaranty" shall mean a Xxxxxxxx Xxxx
Completion Guaranty or a Xxxxxxxx Xxxx MW Completion Guaranty, as the
context hereunder requires.
"Affiliate Guarantor Transaction Guaranty" shall mean Xxxxxxxx Xxxx
Transaction Guaranty or a Xxxxxxxx Xxxx MW Transaction Guaranty, as the
context hereunder requires.
"Xxxxxxxx Xxxx" shall mean Xxxxxxxx Xxxx Company, a Delaware
corporation.
"Xxxxxxxx Xxxx Completion Guaranty" shall mean a Guaranty of
Completion of Improvements pursuant to Construction Loan Agreement in the
form attached hereto as EXHIBIT K, with blanks completed appropriately,
given to the Bank with respect to a Project Loan by Xxxxxxxx Xxxx, pursuant
to which Xxxxxxxx Xxxx guarantees the timely and lien-
free completion of the Improvements in respect of which such Project Loan
is being made, as the same may be supplemented, modified or amended from
time to time.
"Xxxxxxxx Xxxx Transaction Guaranty" shall mean a Transaction Guaranty
in the form attached hereto as EXHIBIT L, with blanks completed
appropriately, given to the Bank with respect to a Project Loan by Xxxxxxxx
Xxxx, pursuant to which Xxxxxxxx Xxxx guarantees the obligations of the
Borrower under such Project Loan, as the same may be supplemented, modified
or amended from time to time.
b. Substituting the following in lieu of the existing like defined
terms:
"Borrower" shall mean a limited liability company or a corporation
which will be the owner of a Project and the borrower under the Project
Loan made in respect of such Project. The managing member or sole
shareholder, as the case may be, of each Borrower, shall be Developer.
"Guarantors" shall mean Developer, Xxxxxxxx Xxxx MW and Xxxxxxxx Xxxx.
"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, the
Collateral Pledge Agreement, 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.
"Xxxxxxxx Xxxx MW Transaction Guaranty" shall mean a Transaction
Guaranty in the form attached hereto as EXHIBIT L, with blanks completed
appropriately, given to the Bank with respect to a Project Loan by Xxxxxxxx
Xxxx MW, pursuant to which Xxxxxxxx Xxxx MW guarantees the obligations of
the Borrower under such Project Loan, as the same may be supplemented,
modified or amended from time to time.
c. Deleting the following defined terms:
"Collateral Assignment of Certificate of Deposit"
"Collateral Assignment of Purchase Agreement"
"Project Certificate of Deposit"
"Project Letter of Credit"
2. EXHIBITS. The Loan Agreement is hereby modified by:
a. Substituting EXHIBIT K attached to this Modification for
EXHIBIT K attached to the Loan Agreement.
b. Substituting EXHIBIT L attached to this Modification for
EXHIBIT L attached to the Loan Agreement.
3. SECTION 2.06 OF THE LOAN AGREEMENT. Section 2.06 of the Loan
Agreement is hereby modified in its entirety to read as follows:
2.06. PROJECT MATURITY DATE. The term of a Project Loan shall
expire upon the earlier of (the "Project Loan Maturity Date"): (a)
nine (9) months from its Closing Date, if such Closing Date occurs
before May 1, 1998, and twelve (12) months from its Closing Date if
such Closing Date occurs on or after May 1, 1998; or (b) the sale of
the Project in respect of which such Project Loan was made pursuant to
the Purchase Agreement for such Project, unless such Project Loan is
sooner paid pursuant to the terms hereof.
4. SECTION 3.01 OF THE LOAN AGREEMENT. Section 3.01 of the Loan
Agreement is hereby modified in its entirety to read as follows:
3.01. ORGANIZATION AND QUALIFICATION. Such Borrower is a
duly formed and validly existing limited liability company or
corporation, as the case may be, under the laws of the State of
Delaware and is duly qualified to conduct business in the state in
which the Project in respect of which such Project Loan is being made
is located. If the Borrower is a limited liability company, the
managing member of such Borrower is the Developer. If the Borrower
is a corporation, the sole shareholder of such Borrower is the
Developer. Developer is a duly formed and validly existing
corporation under the laws of the State of Delaware. The Affiliate
Guarantor guaranteeing such Project Loan is a duly formed and validly
existing corporation under the laws of the State of Delaware.
5. SECTION 3.03 OF THE LOAN AGREEMENT. Section 3.03 of the Loan
Agreement is hereby modified in its entirety to read as follows:
3.03. CONFLICT WITH OTHER INSTRUMENTS. Neither the execution
and delivery of the Project Loan Document for such Project Loan to
which it is a party, nor consummation of the transactions contemplated
thereby, nor compliance with the terms, conditions and provisions
thereof will conflict with or result in a breach of any of the terms,
conditions or provisions of the articles of organization or operating
agreement of such Borrower if such Borrower is a limited liability
company, or the certificate of incorporation or by-laws of such
Borrower if Borrower is a corporation, whichever the case may be, or,
to Borrower's actual knowledge, any law or any regulation, order,
writ, injunction or decree of any court or Governmental Authority or
any agreement or instrument to which such Borrower is a party or by
which such Borrower or its properties or assets (including the Project
in respect of which such Project Loan is being made) are subject to or
bound, or constitute a default thereunder or result in the creation or
imposition of any lien, charge, security interest or encumbrance of
any nature whatsoever upon any of the property of such Borrower
(including the Project in respect of which such Project Loan is being
made) pursuant to the terms of any such agreement or instrument,
except as created by such Project Loan Documents.
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6. SUBPARAGRAPH 4.01(a) OF THE LOAN AGREEMENT. Subparagraph 4.01(a) of
the Loan Agreement is hereby modified in its entirety to read as follows:
i. If such Borrower is a limited liability company, a copy
of the articles of organization of such Borrower, together with
any amendments to such agreement, filed with the appropriate
Governmental Authorities of the State of Delaware, or if such
Borrower is a corporation, a copy of the certificate of
incorporation of such Borrower, together with any amendments to
such agreement, filed with the appropriate Governmental
Authorities of the State of Delaware;
ii. If such Borrower is a limited liability company, a copy
of the operating agreement of such Borrower, together with any
amendments to such agreement, or if such Borrower is a
corporation, a copy of the by-laws of such Borrower, together
with any amendments to such by-laws;
iii. An original Certificate of Existence for such Borrower
issued by the Secretary of State of Delaware bearing a recent
date;
iv. An original Certificate of Qualification for such
Borrower as a foreign limited liability company or corporation,
whichever the case may be, doing business in the state in which
the Project in respect of which such Project Loan is being made
is located issued by the Secretary of State of such state;
v. A copy of the articles of incorporation for Developer,
together with any and all amendments thereto;
vi. A copy of the by-laws of Developer, together with
any and all amendments thereto;
vii. An original Certificate of Existence for Developer
issued by the Secretary of State of Delaware bearing a recent
date;
viii. A copy of the resolutions of the Board of Directors of
Developer authorizing the execution of the Project Loan Document
for such Project Loan by Developer on behalf of such Borrower and
the execution of the Developer Guaranty and the Environmental
Indemnity Agreement for such Project by Developer in its
individual capacity;
ix. A copy of the certificate of incorporation for the
Affiliate Guarantor guaranteeing such Project Loan, together with
any and all amendments thereto, filed with the appropriate
Governmental Authorities of the State of Delaware;
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x. A copy of the by-laws of the Affiliate Guarantor
guaranteeing such Project Loan, together with any and all
amendments thereto;
xi. An original Certificate of Existence for the Affiliate
Guarantor guaranteeing such Project Loan issued by the Secretary
of State of Delaware bearing a recent date; and
xii. A copy of the resolutions of the Board of Directors of
the Affiliate Guarantor guaranteeing such Project Loan
authorizing the execution of the Affiliate Guarantor Completion
Guaranty and the Affiliate Guarantor Transaction Guaranty by such
Affiliate Guarantor in its individual capacity.
7. SUBPARAGRAPH 4.01 (e)(iv) OF THE LOAN AGREEMENT. Section 4.01 of the
Loan Agreement is hereby amended by deleting Subparagraph 4.01 (e)(iv) of the
Loan Agreement.
8. SUBPARAGRAPH 4.01(e)(vii) AND SUBPARAGRAPH 4.01 (e)(ix) OF THE LOAN
AGREEMENT. Subparagraph 4.01 (e)(vii) and Subparagrah 4.01(e)(ix) of the Loan
Agreement are hereby modified in their entirety to read as follows:
vii. If the Closing of such Project Loan occurs prior to May
1, 1998, a Xxxxxxxx Xxxx MW Completion Guaranty, pursuant to
which Xxxxxxxx Xxxx MW shall have guaranteed the timely lien free
completion of the Improvements forming a part of such Project, or
if the Closing of such Project Loan occurs on or after May 1,
1998, a Xxxxxxxx Xxxx Completion Guaranty pursuant to which
Xxxxxxxx Xxxx shall have guaranteed the timely lien free
completion of the Improvements forming a part of such Project.
ix. If the Closing of such Project Loan occurs prior to May
1, 1998, a Xxxxxxxx Xxxx MW Transaction Guaranty pursuant to
which Xxxxxxxx Xxxx MW shall have guaranteed the obligations of
the Borrower in respect of such Project Loan in accordance with
the terms thereof, or if the Closing of such Project Loan occurs
on or after May 1, 1998, a Xxxxxxxx Xxxx Transaction Guaranty
pursuant to which Xxxxxxxx Xxxx shall have guaranteed the
obligations of the Borrower in respect of such Project Loan in
accordance with the terms thereof.
9. SECTION 4.01(z) OF THE LOAN AGREEMENT. Section 4.01 of the Loan
Agreement is hereby modified by deleting subparagraph (z) thereof.
10. SECTION 8.01 OF THE LOAN AGREEMENT. Section 8.01 of the Loan
Agreement is hereby amended to add the following subparagraph 8.01 (t):
t. Developer sells, assigns, hypothecates or otherwise
transfers its interest in such Borrower.
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11. SECTION 8.04 OF THE LOAN AGREEMENT. Section 8.04 of the Loan
Agreement is hereby deleted in its entirety.
12. SECTION 9.05 OF THE LOAN AGREEMENT. The notice address for developer
and the Borrower is hereby amended to: x/x Xxxxxxxx Xxxx XXX, Xxx., 0000 Xxxx
Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000-0000.
13. SECTION 9.11 OF THE LOAN AGREEMENT. Section 9.11 of the Loan
Agreement is hereby modified in its entirety to read as follows:
9.11. GOVERNING LAW. BY ACCEPTANCE OF A PROJECT LOAN, THE
BORROWER THEREUNDER AGREES WITH BANK THAT, EXCEPT AS EXPRESSLY SET
FORTH IN THE DEED OF TRUST AND THE ASSIGNMENT OF RENTS AND THE OTHER
PROJECT LOAN DOCUMENTS FOR SUCH PROJECT LOAN, THE LAW OF THE STATE OF
INDIANA SHALL GOVERN ALL MATTERS RELATING TO THIS AGREEMENT AND THE
OTHER PROJECT LOAN DOCUMENTS IN RESPECT OF SUCH PROJECT LOAN AND ALL
OF THE INDEBTEDNESS OR OBLIGATIONS OF SUCH BORROWER ARISING HEREUNDER
OR THEREUNDER. SUCH BORROWER BY ITS ACCEPTANCE OF SUCH PROJECT LOAN
(a) SHALL BE SUBJECT TO PERSONAL JURISDICTION IN THE STATE OF INDIANA
AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN
STATE OF INDIANA (AND ANY APPELLATE COURTS TAKING APPEALS THEREFROM)
FOR THE ENFORCEMENT OF SUCH BORROWER'S OBLIGATIONS HEREUNDER AND UNDER
THE OTHER PROJECT LOAN DOCUMENTS FOR SUCH PROJECT LOAN AND (b) WAIVES
ANY AND ALL PERSONAL RIGHTS UNDER THE LAW OF ANY OTHER STATE TO OBJECT
TO JURISDICTION WITHIN SUCH STATE FOR THE PURPOSES OF SUCH ACTION,
SUIT, PROCEEDING OR LITIGATION TO ENFORCE SUCH OBLIGATIONS OF SUCH
BORROWER. BY ACCEPTANCE OF ITS PROJECT LOAN, SUCH BORROWER WAIVES AND
AGREES NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER PROJECT LOAN
DOCUMENTS FOR SUCH PROJECT LOAN (x)THAT IT IS NOT SUBJECT TO SUCH
JURISDICTION OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE
BROUGHT OR IS NOT MAINTAINABLE IN THOSE COURTS OR THAT THIS AGREEMENT
AND SUCH OTHER PROJECT LOAN DOCUMENTS MAY NOT BE ENFORCED IN OR BY
THOSE COURTS OR THAT IT IS EXEMPT OR IMMUNE FROM EXECUTION, (y) THAT
THE ACTION, SUIT OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, OR
(z) THAT THE VENUE OF THE ACTION, SUIT OR PROCEEDING IS IMPROPER.
NOTHING IN THIS SECTION 9.11 SHALL BE DEEMED TO PRECLUDE BANK FROM
FILING ANY ACTION, SUIT OR PROCEEDING IN RESPECT OF THIS AGREEMENT OR
SUCH OTHER PROJECT LOAN DOCUMENTS IN THE STATE OF COLORADO OR THE
STATE WHERE SUCH PROJECT IS LOCATED OR THE FEDERAL COURTS OF THE
UNITED
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STATES OF AMERICA LOCATED IN THE STATE OF COLORADO OR THE STATE
WHERE SUCH PROJECT IS LOCATED.
14. SECTION 9.16 OF THE LOAN AGREEMENT. Section 9.16 of the Loan
Agreement is hereby modified in its entirety to read as follows:
9.16. DEVELOPER'S COVENANTS. Developer covenants that from
the date hereof through the Project Loan Commitment Expiration Date
and thereafter until all Project Loans have been paid in full,
Developer will furnish to Bank within ninety (90) days after the end
of each fiscal year of Developer, annual financial statements of
Developer, which financial statements shall be reviewed by certified
public accountants acceptable to Lender and certified as to accuracy
by an officer thereof, and shall include a balance sheet, statement of
income and retained earnings and a statement of cash flows, with
accompanying notes to financial statements, shall be prepared in
accordance with generally accepted accounting principles on a basis
consistent with prior years and shall otherwise be in form
satisfactory to the Bank.
15. 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.
16. 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.
17. 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.
18. 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 Second Modification
of Master Construction Loan Agreement to be duly executed as of the date and
year first above written.
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"DEVELOPER"
XXXXXXXX XXXX BTS, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Printed: Xxxx X. Xxxxxx
------------------------------
Title: Vice President
--------------------------------
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"BANK"
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------
Printed: Xxxxxxxx X. Xxxxx
-------------------------------
Title: Vice President
---------------------------------
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