EXHIBIT (10) (viii)
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FIRST AMENDMENT AGREEMENT
THIS FIRST AMENDMENT AGREEMENT ("Amendment") dated as of
September 11, 1998 is made between BSRT LEXINGTON B CORP., an Illinois
corporation ("Lexington B") and BSRT LEXINGTON TRUST, a Massachusetts
business trust ("Lexington Trust") (Lexington B and Lexington Trust,
together with their respective successors and assigns, are collectively
referred to as "Borrower"), and THE CAPITAL COMPANY OF AMERICA LLC, a
limited liability company organized under the laws of the State of Delaware
(together with its permitted successors and assigns, "Lender").
W I T N E S S E T H:
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WHEREAS, on May 22, 1998, Borrower and Nomura Asset Capital
Corporation, a Delaware corporation ("NACC") entered into a Loan Agreement
providing for a loan to Borrower in the amount of $7,700,000 (the "Loan
Agreement"); unless otherwise defined herein, all capitalized terms used
herein shall have the respective meanings set forth in Section 1 of the
Loan Agreement;
WHEREAS, ON May 22, 1998, Borrower executed and delivered to Lender
that Note in the amount of $7,700,000 (the "Note");
WHEREAS, NACC has assigned the Note and its rights under the Loan
Agreement to Lender;
WHEREAS, Lender and Borrower have agreed to amend the Loan Agreement
and the Note to provide for a different prepayment period applicable to the
Loan;
NOW, THEREFORE, in consideration of the covenants, agreements,
representations and warranties set forth in this Amendment, the parties
hereto hereby covenant, agree, represent and warrant as follows:
I. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is hereby
amended as follows:
Section 1.1 As used in the Loan Agreement, the term "Stated Maturity
Date" shall mean June 11, 2029.
Section 1.2 Section 2.3.1 of the Loan Agreement is deleted in its
entirety and the following inserted in its place:
REPAYMENT. Borrower shall repay any outstanding principal
indebtedness of the Loan in full on the Maturity Date of the Loan, together
with interest thereon to (but excluding) the date of repayment. Other than
as set forth in Sections 2.3.2, 2.3.6 and 2.3.7 below, Borrower shall have
no right to prepay all or any portion of the Loan
during the period commencing on the Closing Date to but not including
that date which will be the third Payment Date occurring before the
Optional Prepayment Date. From and after the third Payment Date occurring
before the Optional Prepayment Date, the Loan may be prepaid in whole or in
part without penalty or premium.
Section 1.3 Section 2.7.3(b) of the Loan Agreement is hereby amended
by adding the following sentence to the end of Section 2.7.3(b):
In the event of a prepayment which is permitted under Section
2.3.1, Borrower shall pay any Early Prepayment Return-of-Amount which may
be applicable to such prepayment.
Section 1.4 Except as expressly modified by this Amendment, the Loan
Agreement is hereby ratified and confirmed by the parties as being in full
force and effect.
II. AMENDMENTS TO NOTE. The Note is hereby amended as follows:
Section 2.1 As used in the Note, the term "Maturity Date" shall mean
June 11, 2029.
Section 2.2 Section 6 of the Note is hereby deleted in its entirety
and the following material is substituted therefor:
This Note may not be prepaid prior to that
scheduled payment date which will be the third scheduled payment date prior
to the Optional Prepayment Date (except in connection with a
Casualty/Condemnation Prepayment under Section 2.3.2 of the Loan
Agreement); provided, however, Maker shall have the right and option to
release the Mortgaged Property from the lien of the Mortgages in accordance
with the provisions set forth in Section 2.3 of the Loan Agreement (the
"Defeasance Option"). Notwithstanding the foregoing sentence, Maker shall
have the privilege to prepay the entire principal balance of this Note and
any other amounts outstanding on any scheduled payment date occurring on or
after the scheduled payment date which will be the third scheduled payment
date prior to the Optional Prepayment Date without payment of the Yield
Maintenance Premium or any other premium or penalty. If prior to the date
which is the third scheduled payment date prior to the Optional Prepayment
Date and following the occurrence and during the continuance of any Event
of Default, Maker shall tender payment of an amount sufficient to satisfy
the Debt at any time prior to a sale of any Parcel, either
through foreclosure or the exercise of the other remedies
available to Payee under the Mortgages, such tender by Maker shall be
deemed to be voluntary and Maker shall pay, in addition to the Debt, the
Yield Maintenance Premium, if any, that would be required under the
Defeasance Option, together with any Return-of-Fee Amount which may be
required under the Loan Agreement.
Section 2.3 Except as expressly modified by this Amendment, the Note
is hereby ratified and expressly modified by this as being in full force
and effect.
III. MISCELLANEOUS.
Section 3.1 Headings. The Article and/or Section headings in this
Amendment are included herein for convenience of reference only and shall
not constitute a part of this Amendment for any other purpose.
Section 3.2 Severability. Wherever possible, each provision of this
Amendment shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Amendment shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Amendment.
Section 3.3 Conflict; Construction of Documents. In the event of any
conflict between the provisions of this Amendment and the provisions of the
Loan Agreement, the provisions of this Amendment shall control. The
parties hereto acknowledge that they were represented by counsel in
connection with the negotiation and drafting of this Amendment and the
Amendment Documents and that such documents shall not be subject to the
principle of construing their meaning against the party which drafted same.
Section 3.4 Successors; Counterparts. This Amendment shall inure to
the benefit of and be binding upon the parties and their respective heirs,
successors and assigns. This Amendment may be executed in two or more
counterparts each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Amendment is
solely intended to and shall amend the Original Loan Agreement. Nothing in
this Amendment is intended to or shall impair any Lien which Lender ever
had, now has, or may hereafter have on any property of Borrower under the
Loan Documents including, without limitation, the collateral for the Loan.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment Agreement to be duly executed by their duly authorized
representatives, all as of the day and year first above written.
BORROWER
BSRT LEXINGTON B CORP., an Illinois
corporation
By: /S/ NEIL D. HANSEN
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Name: Neil D. Hansen
Title: Vice President
BSRT LEXINGTON TRUST, a Massachusetts
business trust
By: BSRT PORTFOLIO B CORP., an Illinois
corporation, its sole trustee
By: /S/ NEIL D. HANSEN
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Name: Neil D. Hansen
Title: Vice President
THE CAPITAL COMPANY OF AMERICA LLC, a
Delaware limited liability company
By: /S/ ROBERT J. WALTER
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Name: Robert J. Walter
Title: Director