Exhibit 10.98


 


THIRD
MODIFICATION AND EXTENSION AGREEMENT


 


THIS THIRD MODIFICATION AND  EXTENSION AGREEMENT (this “Agreement”) is
made and entered into this 30th day of January, 2002, by and among HUNTLEY
DEVELOPMENT LIMITED PARTNERSHIP, an Illinois limited partnership (“Borrower”),
THE PRIME GROUP, INC., an Illinois corporation (the “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.                                   Lender has heretofore made a loan in the
maximum principal amount of $10,000,000.00 (the “Loan”) to Borrower, which Loan
is evidenced by that certain Promissory Note (as previously modified and
extended, the “Note”), dated as of October 27, 1999, in the stated principal
amount of $10,000,000.00, executed and delivered by Borrower and payable to the
order of Lender. The Note has previously been modified and extended pursuant to
that certain Second Modification and Extension Agreement, dated as of October
31, 2000, by and among Borrower, Guarantor and Lender and which has been
recorded as Document No. 2000K089267 in the Records of Kane County, Illinois
(the “Second Modification”).


 


B.                                     The Loan and the Note are secured by,
among other things, that certain Adjustable Rate Mortgage, Security Agreement and
Assignment of Leases and Rents (as previously modified and extended, the
“Mortgage”), dated as of October 27, 1999, executed and delivered by Borrower
for the benefit of Lender, which encumbers, among other things, certain real
property located in Kane County, Illinois and more particularly described in
the Mortgage and all improvements and fixtures thereon (the “Property”), and
which has been recorded as Document No. 1999K103679 in the Records of Kane
County, Illinois. The Mortgage has been amended pursuant to that certain First
Amendment to Mortgage, Security Agreement and Assignment of Leases and Rents
and Related Documents, dated December 29, 1999, by and among Borrower,
Guarantor and Lender and which has been recorded under Document No. 1999K122257
in the Records of Kane County, Illinois and by the Second Modification.


 


C.                                     The Guarantor has guaranteed the payment
and performance of the obligations of Borrower in regard to the Loan pursuant
to that certain Guaranty Agreement, dated October 27, 1999, executed by
Guarantor for the benefit of Lender.


 


D.                                    Borrower has requested that Lender agree
to increase the maximum principal amount of the Loan and the Note, renew and
extend the term of the Loan, the Note, the Mortgage and the other Loan
Documents, as such term is defined in the Mortgage, and otherwise modify the
Note, the Mortgage and such other Loan Documents. Borrower, Guarantor and
Lender desire to enter into this Agreement to, among other things, effect the
increase, modification and extension of the term of the Loan, the Note, the
Mortgage and the other Loan Documents.


 


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


 


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of which are hereby acknowledged and confessed by each
of the parties hereto, the parties hereto hereby agree as follows:


 


1.                                       Concurrently with the execution and
delivery hereof, Borrower is executing and delivering to Lender an Amended,
Restated and Increased Promissory Note in the stated principal amount of
$11,712,177.00 (the “Amended Note”), which amends and restates the Note in its
entirety and increases the maximum principal amount of the Loan to $11,712,177.00.
The Amended Note has a Final Maturity Date, as such term is defined in the
Amended Note, of October 31, 2003, subject to extension of such Final Maturity
Date for a period of one (1) year if certain conditions set forth in the
Amended Note are satisfied. The Mortgage, the Guaranty and the other Loan
Documents are hereby modified to provide that the term the “Note”, as used
therein, shall refer to and mean the Amended Note.  Section 1.1 (v) of the Mortgage is modified by deleting the
reference to “October 31, 2001” and replacing it with “October 31, 2003”, and
by adding the phrase “subject to extension of such maturity date as provided in
the Note”. All of the other Loan Documents are modified, as necessary, to
provide that the Loan and the Note now mature on October 31, 2003, subject to
acceleration of such maturity date and/or extension of such date as provided in
the Note.


 


2.                                       As of the date hereof, the unpaid
principal balance of the Loan and the Note is $9,212,712.00. The unfunded
proceeds of the Loan, in the amount of $2,500,000.00 will be funded in
accordance with the terms of the Loan Agreement, as such term is defined in the
Note.


 


3.                                       As a material inducement to Lender to
enter into this Agreement, Borrower and Guarantor, each on behalf of itself and
its successors, assigns, heirs, legal representatives and constituents (whether
or not a party hereto) (Borrower, Guarantor and such successors, assigns,
heirs, legal representatives and constituents being referred to herein
collectively and individually, as “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, expenses (including, without limitation,
reasonable attorneys’ fees), 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 of the indebtedness
evidenced by the Note and/or the Mortgage and/or the Guaranty and/or any of the
other 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 to the execution of this
Agreement.


 


4.                                       As an additional material inducement to
Lender to enter into this Agreement, Borrower and Guarantor hereby represent
and warrant to Lender that:


 


(a)                                  as of the date hereof, the Note, the
Mortgage, the Guaranty and the other Loan Documents, as modified hereby, are in
full force and effect and are not in default and as of the date hereof, there
is no default or failure to perform on the part of the Lender in regard to the
Loan and neither Borrower nor Guarantor has any defense, counterclaim or offset
to the Note, the Mortgage, the Guaranty or any of the other Loan Documents, as
modified hereby;


 


(b)                                 the representations and warranties of
Borrower and/or Guarantor set forth in the


 


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Note,
the Mortgage, the Guaranty and/or any of the other 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 had been made on the date
hereof and shall continue in full force and effect; and


 


(c)                                  this Agreement constitutes the legal,
valid and binding obligation of Borrower and Guarantor enforceable against
Borrower and Guarantor in accordance with the terms hereof, except as such
enforceability may be effected by bankruptcy and other debtor relief laws.


 


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


 


5.                                       On demand, Borrower shall pay to Lender
(i) a $125,000.00 Loan Modification and Extension Fee (which will not be
applied to the payment of any amounts due in regard to the Loan), and (ii) all
closing costs and fees and expenses incurred by Lender in connection with this
Agreement and the transactions contemplated hereby, including, without
limitation, Lender’s reasonable attorneys’ fees and expenses. In addition,
Borrower will cause to be issued to Lender concurrently with the execution and
delivery hereof, a loan policy of title insurance (the “Policy”) in the amount
of $11,712,177.00, in form and issued by a title insurance company acceptable
to Lender and insuring the first priority status of the Mortgage, as modified
hereby, subject only to such exceptions to title as Lender may approve in its
sole discretion. The cost of such Policy shall be paid by Borrower.


 


6.                                       In addition to the documents, instruments
and acts described in this Agreement and which are to be executed and/or
delivered and/or taken pursuant to this Agreement, Borrower and Guarantor agree
to (i) provide to Lender a consent to this Agreement and the transactions
effected hereby, executed by the current beneficiary of that certain Amended
and Restated Mortgage and Security Agreement, dated October 27, 1999, executed
by Borrower for the benefit of U.S. Bank Trust Company which has been recorded
as Document No. 1999K122255 in the records of Kane County, Illinois and which
encumbers a portion of the Property and (ii) 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 transactions contemplated by this
Agreement, including, without limitation, an opinion of counsel for Borrower
and Guarantor in form and substance reasonably satisfactory to Lender and all
necessary partnership, trust and/or corporate organization and authorization
documents in form and substance satisfactory to Lender.


 


7.                                       Borrower and Guarantor hereby affirm and
confirm each of the covenants and agreements of Borrower and/or Guarantor
contained in the Note, the Mortgage, the Guaranty and the other Loan Documents,
as each is amended hereby.


 


8.                                       Borrower and Guarantor hereby affirm, confirm,
ratify, renew and extend the debts, duties, obligations, liabilities, rights,
titles, security interests, liens, powers and privileges created or arising by
virtue of the Note, the Mortgage, the Guaranty and the other Loan Documents, as
each has been amended hereby, until all of the Indebtedness and Obligations, as
such terms are defined in the Mortgage, have been paid and performed in full.
Borrower and Guarantor confirm that Lender has not released, forgiven,
discharged, impaired, waived or relinquished, and does not hereby release,


 


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forgive,
discharge, impair, waive or relinquish any rights, titles, interests, liens,
security interests, collateral, parties, remedies or any other matter with
respect to the Loan, the Note, the Mortgage, the Guaranty and the other Loan
Documents, but rather Lender is expressly retaining and reserving the same to
their fullest extent.


 


9.                                       Except as expressly provided herein, all
the terms, provisions, debts, duties, obligations, liabilities,
representations, warranties, rights, titles, security interests, liens, powers
and privileges existing by virtue of the Note, the Mortgage, the Guaranty and
any other Loan Document shall be and continue in full force and effect and are
hereby acknowledged by Borrower and Guarantor to be legal, valid, binding and
enforceable in accordance with their terms.


 


10.                                 This Agreement shall be binding upon the
parties hereto and their respective heirs, personal representatives, successors
and assigns. Nothing contained in this paragraph shall act to amend or modify
any of the provisions of the Note, the Mortgage, the Guaranty or any other Loan
Document which restrict or prohibit assignment or transfer.


 


11.                                 Neither this Agreement nor any provision
of the Note, the Mortgage, the Guaranty or any other Loan Document 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.


 


12.                                 THIS AGREEMENT AND THE OTHER DOCUMENTS
ENTERED INTO IN REGARD TO THE LOAN REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. 
THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES.


 


EXECUTED
as  of
the day and year first above written.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  HUNTLEY DEVELOPMENT LIMITED

  PARTNERSHIP,

  
	
   

  	
  an Illinois limited
  partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Huntley Development Company, its Managing

  General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Gary Skoien

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
  THE PRIME GROUP, INC.,

  
	
   

  	
  an Illinois
  corporation

  
						



 


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  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gary J. Skoien

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LENDER:

  
	
   

  	
   

  
	
   

  	
  BEAL BANK, S.S.B.,

  
	
   

  	
  a savings bank
  organized under the laws of the State of

  Texas

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  William T. Saurenmann

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
					



 


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