Exhibit 10.103


 


THIS DOCUMENT WAS
PREPARED BY

AND AFTER RECORDING RETURN TO:

Jenkens & Gilchrist, a Professional Corporation

1445 Ross Avenue. Suite 3200

Dallas. Texas 75202

Attention:                                         Lawrence
C. Adams


 


FIRST
AMENDMENT TO

MORTGAGE, SECURITY AGREEMENT AND

ASSIGNMENT OF LEASES AND RENTS AND RELATED DOCUMENTS


 


THIS FIRST
AMENDMENT TO MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS
AND RELATED DOCUMENTS (the “Amendment”) is made and entered into this 29th
day of December, 1999, by and among HUNTLEY DEVELOPMENT LIMITED PARTNERSHIP, an
Illinois limited partnership (“Borrower”), THE PRIME GROUP, INC., an Illinois
corporation (“Guarantor”), and BEAL BANK, S.S.B., a savings bank organized
under the laws of the State of Texas (“Lender”).


 


W I T N E S S E T H:


 


A.                                    Borrower
has heretofore obtained from Lender a loan (the “Loan”) in the principal amount
of Ten Million Dollars ($10,000,000.00). 
The Loan is evidenced by that certain Mortgage Note, dated
October 27, 1999, in the stated principal amount of Ten Million Dollars
($10,000,000.00), executed by Borrower and payable to the order of Lender (the
“Note”). The Loan and the Note are secured by, among other things, that certain
Mortgage, Security Agreement and Assignment of Leases and Rents, dated October 27,
1999, executed by Borrower for the benefit of Lender and which has been
recorded in Kane County, Illinois under Document No. 1999K103679 (the
“Mortgage”).  The Mortgage encumbers
certain property as therein described, including the real property described in
Exhibit “A” attached hereto (all property covered by the Mortgage as of
the date hereof is herein referred to as the “Mortgaged Property”).


 


B.                                      As
additional security for the Loan, Borrower executed and delivered to Lender
that certain Collateral Assignment of Sales Contract, dated October 27,
1999, which has been recorded in Kane County, Illinois under Document No.
1999K103680 (the “Collateral Assignment”) which encumbers the real property
described on Exhibit “A” hereto and certain contracts and rights related
thereto as described in such Collateral Assignment.


 


C.                                      In
connection with the Loan, the Guarantor, which is affiliated with Borrower, has
executed and delivered to Lender that certain Guaranty Agreement, dated
October 27, 1999 (the “Guaranty”).


 


D.                                     A
condition to Lender’s agreement to fund the remaining $6,000,000.00 of unfunded


 


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proceeds of the Loan is that the Borrower must grant to Lender a second
priority mortgage on, and, collateral assignment of contracts relating to, the
real property described on Exhibit “B” attached hereto, all improvements
thereon and all rights, hereditaments and appurtenances relating thereto,
including, without limitation, refunds of funds held as security for certain
bonds, including, without limitation, the Series B Bonds, as such term is
defined in the First Lien Mortgage, as hereinafter defined (such real property,
improvements, rights. hereditaments and appurtenances, and all proceeds of any
thereof, together with all other property. if any, encumbered by the First Lien
Mortgage, are referred to herein collectively as the “Additional Property”).


 


E.                                       The
real property described on Exhibit “B” attached hereto plus certain
other portions of the Additional Property are encumbered by that certain
Amended and Restated Mortgage and Security Agreement, dated as of
December 14, 1999, executed by Borrower, for the benefit of U.S. Bank
Trust National Association and which is being recorded in Kane County, Illinois
(the “First Lien Mortgage”).


 


NOW, THEREFORE, for
and in consideration of the premises, the mutual covenants and agreements
herein contained, and other good  and valuable consideration, the receipt
and sufficiency of all of which are hereby acknowledged and confessed by
each of the parties hereto, the parties hereto hereby agree as follows:


 


1.                                        The
Mortgage and the Collateral Assignment are hereby amended to provide that the
Additional Property is hereby subjected to the Mortgage and the Collateral
Assignment and is encumbered thereby. Borrower hereby GRANTS, SELLS, ASSIGNS,
RELEASES, ALIENS, TRANSFERS, REMISES, CONVEYS AND MORTGAGES the Additional
Property to Lender and grants to Lender a security interest in the Additional
Property, subject to the exceptions to title listed on Exhibit “C”
attached hereto (the “Additional Property Permitted Encumbrances”), to HAVE AND
TO HOLD the Additional Property unto Lender, its successors and assigns
forever, and Borrower does hereby bind itself, its successors and assigns to warrant
and forever defend the title to the Additional Property unto Lender against
every person whomsoever lawfully claiming or to claim the same or any part
thereof, subject only to the Additional Property Permitted Encumbrances;
provided, however, that if Borrower shall pay in full the Indebtedness, as
defined in
the Mortgage, and shall fully perform and discharge the Obligations,
as defined in the Mortgage, then the titles, liens, security interests, estates
and rights granted by the Loan Documents, as defined in the Mortgage, shall
terminate; otherwise, the same shall remain in full force and effect. The
Mortgage is further amended to provide that the Land, as defined in the
Mortgage, now also includes the Additional Property. The Collateral Assignment
is further amended to provide that the Property, as defined in the Collateral
Assignment, now also includes the Additional Property.


 


2.                                        Borrower
covenants and agrees with Lender that the liens and security interests created
and granted by the Mortgage and the Collateral Assignment, as amended hereby,
in regard to the Additional Property, constitute second priority liens and
security interests in regard to all the Additional Property, subject to the
First Lien Mortgage and the other Additional Property Permitted Encumbrances,
and that the liens and security interests created and granted by the Mortgage
and the Collateral Assignment, as amended hereby, in regard to the remainder of
the Mortgaged Property or the Property, as the case may be, other than the Additional
Property, constitute valid, perfected first priority liens and security
interests subject only to the Permitted Encumbrances, as defined in the
Mortgage.


 


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3.                                        The
Mortgage is further modified to add the following provisions:


 


(i)                                     The
Borrower agrees with the Lender to fully and timely perform all obligations of
the Borrower under that First Lien Mortgage and the documents secured thereby
and to not allow a Default, as such term is defined in the First Lien Mortgage,
to occur;


 


(ii)                               The
Borrower agrees with the Lender not to amend or modify the First Lien Mortgage
or any of the documents secured thereby without the prior written consent of
the Lender, which consent may be granted or withheld at the sole discretion of
the Lender;


 


(iii)                               The Borrower agrees with
the Lender to promptly deliver to Lender true, correct and complete copies of
any and all notices the Borrower gives or receives in regard to the First Lien
Mortgage or any of the obligations and indebtedness secured thereby;


 


(iv)                              The
Borrower and the Lender agree that the occurrence of a Default, as defined in
the First Lien Mortgage, shall constitute an Event of Default, as defined in
the Mortgage; and


 


(v)                              The
Borrower and the Lender agree that any and all funds held in escrow in regard
to the Series B Bonds, as such term is defined in the First Lien Mortgage, are
encumbered by the Mortgage and the Borrower hereby grants to the Lender a
pledge of and security interest in all such funds, as collateral for the
Indebtedness and Obligations secured by the Mortgage, which pledge of and
security interest in all such funds is subject to the rights of the owner of
the First Lien Mortgage in regard to such funds. As and when any such funds are
released from escrow, such funds shall be immediately delivered to Lender for
application to the Indebtedness held by Lender or, if such Indebtedness cannot
be prepaid at the time such funds are released from escrow, such funds, and a
security agreement and other documents as required by Lender, will be delivered
to Lender and held by Lender as collateral for the Indebtedness and
Obligations.


 


4.                                        Lender
has not waived, and is not hereby waiving, any of the duties or obligations of
Borrower or the Guarantor under any of the Loan Documents, as such term is
defined in the Mortgage.


 


5.                                        As
an additional material inducement to Lender to enter into this Amendment,
Borrower and the Guarantor hereby affirm, confirm, ratify, renew and extend the
debts, duties, obligations, liabilities, representations, warranties, rights,
titles, security interests, liens, powers and privileges existing by virtue of
the Loan Documents, as modified hereby.


 


6.                                        Notwithstanding
anything contained herein to the contrary, and as an additional material
inducement to Lender to enter into this Amendment, Borrower and the Guarantor
hereby agree that Lender is not hereby releasing, forgiving, discharging,
impairing, waiving or relinquishing any rights, titles, interests, liens,
security interests, collateral, parties, remedies or any other matter with
respect to the Loan Documents, as modified hereby, but rather Lender is
expressly retaining and


 


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reserving
the same to their fullest extent.


 


7.                                        As
an additional material inducement to Lender to enter into this Amendment,
Borrower, on behalf of itself and its successors, assigns, legal
representatives and constituents (whether or not a party hereto), and
Guarantor, on behalf of itself its successors, legal representatives, assigns
and constituents (whether or not a party hereto) (collectively and
individually, ‘Obligors, et al”), hereby fully, finally and completely release
and forever discharge Lender and its successors, assigns, affiliates,
subsidiaries, parents, officers, shareholders, directors, employees, attorneys
and agents, past, present and future, and their respective heirs, successors  and
assigns (collectively and individually, “Lender, et al”) of and from any and
all claims, controversies, disputes, liabilities, obligations, demands,
damages, debts, liens, actions and causes of action of any and every nature
whatsoever, and waive and release any defense, right of counterclaim, right of
set-off or deduction to the payment and/or performance of the Indebtedness
and/or Obligations evidenced by the Loan Documents, which Obligors, et al now
have or may claim to have against Lender, et al arising out of, connected with
or relating to any and all acts, omissions or events occurring prior the
execution of this Amendment.


 


8.                                       As
an additional material inducement to Lender to enter into this Amendment,
Guarantor hereby represent and warrant to Lender that:


 


(a)                                  the
Loan Documents, as modified hereby, are in full force and effect, and neither
Borrower nor Guarantor has any defense, counterclaim or offset to the
performance of the obligations evidenced by the Loan Documents, as modified
hereby;


 


(b)                                 the
representations and warranties of Borrower and the Guarantor set forth in the
Loan Documents are true and correct in all material respects as of the date
hereof and are hereby reaffirmed as if such representations and warranties have
been made on the date hereof, and shall continue in full force and effect; and


 


(c)                                  this
Amendment and the Loan Documents, as modified hereby, constitute the legal,
valid and binding obligations of Borrower and the Guarantor, enforceable
against Borrower and the Guarantor in accordance with their terms.


 


The representations and warranties of Borrower and the
Guarantor contained in this Amendment shall survive the consummation of the
transactions contemplated by this Amendment.


 


9.                                        Promptly
after the execution hereof, Borrower shall cause Chicago Title Insurance
Company (the Title Company”) to issue to Lender an endorsement, in form
acceptable to Lender, to that certain Loan Policy (the ‘Original Policy”),
dated October 29, 1999 (Policy No. 1410000469123KA) issued by the Title
Company to Lender in regard to the Mortgage and being in the face amount of Ten
Million Dollars ($10,000,000.00), which endorsement will confirm that the liens
and security interests created by the Mortgage continue as valid liens in
regard to all of the Mortgaged Property, including the Additional Property, of
the priority required by the Mortgage, as modified hereby, subject only to, as
applicable, the exceptions to title contained in the Original Policy and the
Additional Property Permitted Encumbrances. On demand, Borrower shall pay all
costs and expenses incurred by Lender in connection with this Amendment and the
transactions contemplated hereby, including, without limitation, all premiums
and other costs and expenses relating to the endorsement described above, and
all of Lender’s reasonable attorneys fees and


 


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expenses.


 


10.                                  Except
as expressly provided herein, all of the terms, provisions, debts, duties,
obligations, liabilities, representations and warranties, rights, titles,
security interests, liens, powers and privileges existing by virtue of the Loan
Documents, as amended hereby, shall be and continue in full force and effect
and are hereby acknowledged by Borrower and the Guarantor to be legal, valid,
binding and enforceable in accordance with their terms. Without limitation of
the foregoing, the Guarantor covenants and agrees with Lender that neither the
entering into of this Amendment or any other document by the Lender nor the
effecting of the transactions contemplated hereby or thereby has limited or
otherwise affected the obligations of the Guarantor under the Guaranty, and the
Guarantor remains fully liable thereunder.


 


11.                                  This
Amendment shall be governed by and construed and enforced in accordance with
the laws of the State of Illinois and the laws of the United States applicable
to transactions within Illinois.


 


12.                                  This
Amendment shall be binding upon the parties hereto and their respective
successors and assigns. Nothing contained herein shall act to amend or modify
any of the provisions of the Loan Documents which restrict or prohibit
assignment or transfer. Neither this Amendment nor any of the Loan Documents
may be waived, modified or amended except by an instrument in writing signed by
the party against which the enforcement of such waiver, modification or
amendment is sought, and then only to the extent set forth in such instrument.


 


13.                                  In
addition to the documents, instruments and acts described in this Amendment
which are to be executed and/or delivered and/or taken pursuant to this
Amendment, Borrower and the Guarantor agree to execute and deliver from time to
time upon request by Lender such other documents and instruments and take such
other action as Lender may reasonably request or require to more fully and
completely evidence and carry out the transaction contemplated by this
Amendment. Without limitation of the foregoing, Borrower and the Guarantor will
cause their legal counsel to issue to Lender an opinion, in form and substance
satisfactory to Lender, confirming the existence and authority of Borrower and
Guarantor, the due execution and delivery by Borrower and Guarantor of this
Amendment and of the other documents being entered into in connection with the
transaction contemplated hereby and/or described herein and the validity,
enforceability and binding effect of all such documents and the Loan Documents,
as modified hereby.


 


14.                                  This
Amendment and the Loan Documents, embody and constitute the entire
understanding between Lender, Borrower and the Guarantor with respect to the
transactions contemplated in and/or described in this Amendment and all prior
or  contemporaneous agreements,
understandings, representations and statements, oral or written, with respect
to such transactions, are merged into this Amendment.


 


15.                                 This
Amendment may be executed in a number of identical counterparts, each of which
for all purposes is deemed an original, and all of which constitute
collectively one agreement; but for the making of proof of this Amendment, it
shall not be necessary to produce or account for more than one such
counterpart.


 


EXECUTED
as of the day and year first above written.


 


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  BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HUNTLEY
  DEVELOPMENT LIMITED

  PARTNERSHIP, an  Illinois limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Huntley
  Development Company,

  Managing General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Gary J. Skoien

  
	
   

  	
   

  	
   

  	
  Title:  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  PRIME GROUP, INC.,

  an Illinois corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Gary J. Skoien

  
	
   

  	
   

  	
   

  	
  Title: 
  Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LENDER:

  
	
   

  	
   

  
	
   

  	
  BEAL
  BANK, S.S.B.,

  a state savings bank

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name: William T. Saurenmann

  
	
   

  	
   

  	
   

  	
  Title: 
  Senior Vice President

  



 


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