Exhibit
10.8
THIS
DOCUMENT WAS, WITH ADVICE OF
LOCAL
COUNSEL, PREPARED BY:
Cynthia
J. Williams, Esq.
Day,
Berry & Howard LLP
260
Franklin Street
Boston,
MA 02110
RECORDING
AND REQUESTED BY AND UPON
RECORDATION
RETURN TO:
Cynthia
J. Williams, Esq.
Day,
Berry & Howard LLP
260
Franklin Street
Boston,
MA 02110
AMENDMENT NO.2 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 and each Remainderman, if any,
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 (the "Original Indenture"), as
amended by Amendment No. 1 to Indenture and Other Operative
Documents, dated as of September 1, 1998, among M-Six Penvest
II Business Trust, a Delaware business trust, M-Six Penvest II
Business Trust (LA), a Louisiana trust, M-Six Penvest II
Limited Partnership (NEV.), a Delaware limited partnership,
and each other Owner listed on Schedule I attached thereto
with respect to the related Mortgaged Property and each
Remainderman, if any, listed on Schedule I attached thereto
with respect to the related Mortgaged Property, collectively
as trustors or as Mortgagors, and The Capital Company of
America LLC, a Delaware limited liability company (successor
in interest to Nomura Asset Capital Corporation) (the "First
Amendment to Indenture"). The Original Indenture, as amended
by the First Amendment to Indenture is referred to herein as
the "Indenture."
Original
Indenture
Recorded: Recording
Information to be supplied by Title
Co.
|
First
Amendment to Indenture Recorded:
|
Recording
Information to be supplied by Title
Co.
|
Pool
IX
(AZ,
CA, KY, LA, MI, MO, NV, OH, TX, WV)
AMENDMENT
NO. 2 TO INDENTURE AND OTHER OPERATIVE DOCUMENTS
This Amendment No. 2 to
Indenture and Other Operative Documents (this "Amendment"),
dated as of March 1, 2000, among M-SIX PENVEST II BUSINESS
TRUST, a Delaware business trust, M-SIX PENVEST II BUSINESS
TRUST (LA), a Louisiana trust, M-SIX PENVEST II LIMITED
PARTNERSHIP (NEV.), a Delaware limited partnership, and each
other owner, if any, listed on Schedule I attached hereto,
which is hereby incorporated by reference herein, through
which it directly or indirectly holds fee title to the land
and the improvements located on the land described on Exhibit
A attached 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
("CCA",
together with its successors and assigns the "Lender").
PRELIMINARY STATEMENT
WHEREAS, pursuant
to that certain Loan Agreement, dated as of April 30, 1998,
between Owner and Lender, Nomura Asset Capital Corporation
("NACC")
made a loan to Owner in the amount of $51,934,489.63
("Loan"
);
WHEREAS, the Loan
was evidenced by, among other things,, a Promissory Note in
the original principal amount of $51,934,489.63 from the
Owner to NACC (the "Original
Note");
WHEREAS, the Loan
was secured by, among other things, the Original
Indenture;
WHEREAS, NACC
transferred and assigned the Loan and the Loan Documents to
CCA;
WHEREAS, CCA and
Owner amended the Loan by amending and restating the Original
Note as two separate notes such that the Loan is now,
evidenced by (i) a Class A Promissory Note in the original
principal amount of $9,985,451.41 dated April 30, 1998, made
by Owner in favor of CCA (the "Short
Note"), and (ii) a Class B Promissory Note in the
original principal amount of $41,949,038.22, dated April 30,
1998, made by Owner in favor of CCA (the "Long
Note" the Short Note and the Long Note are sometimes
hereinafter collectively referred to as the "Notes");
WHEREAS, the
Original Indenture and the other Operative Documents were
amended to reflect the split of the Original Note pursuant to
the First Amendment to Indenture;
WHEREAS, CCA has
full authority as of the date hereof to enter into this
Amendment; and
WHEREAS, Owner
and Lender desire to amend the Indenture.
Capitalized terms used but
not otherwise defined herein shall have the meaning set forth
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:
1. Amendments
to the Indenture.
1.1 Article
1 of the Indenture is hereby amended as follows:
(a) the
defined term "Permitted
Defeasance Date" shall be deleted in its entirety and
the following substituted therefor:
"Permitted
Defeasance Date" shall mean any Payment Date occurring
after the earlier to occur of two years after the start up
date within the meaning of Section 860G(a)(9) of the I.R.C.
of any Person or pool of assets electing R
