Exhibit
10.7
THIS
DOCUMENT WAS, WITH THE ADVICE
OF
LOCAL COUNSEL, PREPARED BY:
Cynthia
Williams, Esq.
Day,
Berry & Howard
260
Franklin Street
Boston,
MA 02110
RECORDING
REQUESTED BY AND UPON
RECORDATION
RETURN TO:
Cynthia
Williams, Esq.
Day,
Berry & Howard
260
Franklin Street
Boston,
MA 02110
AMENDMENT
NO. 1 TO INDENTURE AND OTHER OPERATIVE DOCUMENTS
Indenture
of Mortgage, Deed of Trust, Security Agreement, Fixture
Filing, Financing Statement and Assignment of Rents and Leases
and Other Loan Documents dated as of April 30, 1998 from each
Owner listed on Schedule I attached thereto with respect to
the related Mortgaged Property, collectively as trustors or as
Mortgagors, as applicable to the Trustee listed on Schedule I
attached thereto with respect to the related Mortgaged
Property, as Trustee for the benefit of Lender as beneficiary,
or to the Lender as Mortgagee.
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Recorded:
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[RECORDING
INFORMATION TO BE SUPPLIED BY THE TITLE COMPANY]
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Assignment
of Master Lease and Guaranty, dated as of April 30, 1998 from
each Owner listed on Schedule I attached thereto to Lender
with respect to the Mortgaged Property.
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Recorded:
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[RECORDING
INFORMATION TO BE SUPPLIED BY THE TITLE COMPANY]
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AMENDMENT
NO. 1 TO INDENTURE
AND OTHER
OPERATIVE DOCUMENTS
This
Amendment No, 1 to Indenture and Other Operative Documents
(this "Amendment"),
dated as of September 1, 1998, among M-Six Penvest II Business
Trust, a Delaware business trust, and M-Six Penvest II
Business Trust (LA), a Delaware business trust and M-Six
Penvest II Limited Partnership (NEV), a Delaware limited
partnership, each other Owner listed on Schedule I thereto,
which is hereby incorporated by reference herein, through
which it directly or indirectly holds title to the estate for
years in the land and fee title to the improvements located on
the land described in Exhibit A hereto (together with their
respective permitted successors and assigns, referred to
herein as "Owner"
either individually or collectively as appropriate in the
context used) and THE CAPITAL COMPANY OF AMERICA LLC, a
Delaware limited liability company (successor in interest to
Nomura Asset Capital Corporation ("NACC")
and, together with its successors and assigns, referred to
herein as "Lender").
PRELIMINARY
STATEMENT
Pursuant
to that certain Loan Agreement, dated as of April 30, 1998,
between Owner and Lender, NACC made a Loan to Owner in the
amount of $51,934,489.93 ("Loan").
The Loan was evidenced inter alia by a Promissory Note in such
amount from the Owner to NACC (the "Original
Note"). The Loan was secured by, among other things,
(i) that certain Indenture of Mortgage, Deed of Trust,
Security Agreement, Fixture Filing, Financing Statement and
Assignment of Rents and Leases, dated as of April 30, 1998,
from Owner to one or more trustees as shown on Schedule I
attached thereto with respect to the related Mortgaged
Property, for the benefit of NACC, its successors and assigns,
as beneficiary, or to Lender, as mortgagee, as provided
therein (the "Original
Indenture"), and (ii) that certain Assignment of Master
Lease and Guaranty, dated as of April 30, 1998, from Owner to
NACC, its successors and assigns, (the "Original Master
Lease Assignment"). Capitalized terms used but not
defined herein shall have the meaning ascribed to them in the
Original Indenture.
Pursuant
to that certain __________________ dated June 26, 1998 between
NACC and The Capital Company of America LLC recorded
_____________________________________, NACC transferred and
assigned the Loan and the Loan Documents to
Lender.
The total Principal Amount
remaining outstanding on the Original Note as of September 1,
1998 after application of the Debt Service Payment due and
paid on such date is $51,776,544.25. Lender and Owner have
agreed to amend the Loan by amending and restating the
Original Note as two separate notes such that the Loan shall
be evidenced by two notes. Accordingly, Owner is delivering
to Lender a note in the amount of $6,814,708.78 (the
"Class A
Note") and a note in the amount of $41,949,038.22 (the
"Class B
Note") in exchange for the Original Note.
In connection with such
split and bifurcation, Owner and Lender desire to amend the
Original Indenture, the Original Master Lease Assignment and
certain other Operative Documents in accordance with the
terms of this Amendment, The Original Indenture, as amended
by this Amendment, is hereinafter referred to as the
"Indenture".
The Original Master Lease Assignment, as amended by this
Amendment, is hereinafter referred to as the "Master Lease
Assignment". Each other Operative Document, as amended
by this Amendment, is referred to by the defined term used
with respect thereto in the Indenture.
NOW, THEREFORE, in
consideration of the foregoing and for other valuable
consideration the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound,
hereby agree as follows:
Pool
IX
(AZ,
CA, KY, LA, MI, MO, NV, OH, TX, WV)
1.
Amendments to
the Indenture
1.1 The
definition of the term "Allocated
Property Debt" in Article I of the Original Indenture
is hereby deleted in its entirety and replaced with the
following:
"Allocated Property Debt" shall mean, with respect to a
particular Mortgaged Property, the original allocated property debt
set forth on Exhibit B hereto with respect to such Mortgaged
Property, multiplied by a fraction, the numerator of which equals
the aggregate outstanding principal balance of the Class A Note and
the Class B Note at the time the calculation is made and the
denominator of which equals (a) $51,934,489.93, minus (b) the
original allocated property debt (as set forth on said Exhibit B)
of any other Mortgaged Property which has been released from the
lien of this Indenture."
1.2. The
definition of the term "Balloon
Payment" in Article 1 of the Original Indenture is
hereby deleted in its entirety and replaced with the
following:
"Balloon Payment" shall mean the payment of the outstanding
principal balance of the Class B Note due on the Maturity
Date.
1.3. Article
I of the Original Indenture is hereby amended by adding a
definition of the term "Class A
Note" and of the term "Class B
Note" in the proper alphabetical order in the list of
definitions in said Article I as follows:
"Class A Note" means that certain promissory note in the
amount of $6,814,708.78, dated the Closing Date, which, together
with the Class B Note, evidences the Loan from Owner, as maker, to
Lender, as lender, or order, as payee, together with any extension,
modification, amendment or supplement thereto and any note(s)
issued in exchange therefor or in replacement thereof.
"Class B Note" means that certain promissory note in the
amount of $41,949,038.22, dated the Closing Date, which, together
with the Class A Note, evidences the Loan from Owner, as maker, to
Lender, as lender, or order, as payee, together with any extension,
modification, amendment or supplement thereto and any note(s)
issued in exchange therefor or in replacement thereof.
1.4. The
definition of the term "Debt Service
Payment" in Article 1 of the Original Indenture is
hereby amended by adding the phrase ", if any," after the
phrase "Balloon Payment".
1.5. The
definition of the term "Maturity
Date" in Article 1 of the Original Indenture is hereby
deleted in its entirety and replaced with the
following:
"Maturity Date" means, (i)(a) September 1, 2008 with respect
to the Class A Note and (b) May 1, 2018 with respect t
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