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 REMIC status in a Secondary
Market Transaction in which the Long Note is included or January 1,
2004.
 
 1.2           Section
2.8(c) is hereby amended by inserting the following language at the end thereof,
before the period:
 
 "provided,
however, that notwithstanding the foregoing, if such payment for such Released
Property shall be made prior to the Permitted Defeasance Date in connection with
a Rejectable Offer made by Tenant pursuant to Section 3.3(c) or Section 9.2 of
the Master Lease, such amount shall be applied to prepay the Allocated Property
Debt with respect to such Released Property, any accrued interest and Make-Whole
Premium with respect thereto pursuant to Section 2.9."
 
 1.3           
Section 2.9(b) is hereby amended by adding the following sentence at the end of
said subsection:
 
 "The
Allocated Property Debt with respect to a particular Property is subject to
mandatory prepayment in whole, with Make-Whole Premium, in connection with the
receipt of the amount set forth in Section 2.8(c) on any date prior to the
Permitted Defeasance Date in connection with a Rejectable Offer by Tenant
pursuant to Section 3.3(c) or Section 9.2 of the Master Lease."
 
 1.4           Section
2.19(f) is hereby amended by adding the following sentence at the end of said
subsection:
 
 "Upon
receipt of such amount required by Section 2.8(c) to be applied to prepay the
Allocated Property Debt with respect to the related Mortgaged Property prior to
the Permitted Defeasance Date, the provisions of Section 2.9 shall apply and
payments thereafter due under the Note shall be recalculated in accordance with
Section 2.1(b) of this Indenture."
 
 1.5           Section
2.20(a) is hereby amended by inserting the following language at the end of the
second sentence, before the period:
 
 "to the extent that defeasance is
required under Section 2.8(c)."
 
 1.6           Section
2,16(e) is hereby amended by inserting the following language at the end
thereof, before the period:
 
 "provided,
however, that the fees of the Lender (or any servicing agent thereof) shall be
subject to the provisions of Section 2.16(f)."
 
 1.7           The
following Section 2.16(f) is hereby inserted immediately following Section
2.16(e) of the Indenture:
 
 "Except
with respect to Processing Fee Exempt Transfers described in Section
2.16(b)(viii) of this Indenture (as to which no processing fee shall be
payable), Owner agrees to pay to Lender a $15,000 processing fee for any
conveyance, assignment, sale, mortgaging, encumbrance, pledging, hypothecation,
granting of a security interest in, granting of options with respect to, or
other disposition of.(directly or indirectly, voluntarily or involuntarily, by
operation of law or otherwise, and whether or not for consideration or of
record) all or any portion of any direct or indirect legal or beneficial
interest (including any profit interest in Owner or any SPE Equity Owner in
Owner) in all or any portion of the Mortgaged Property or in Owner or any SPE
Equity Owner in Owner. No other fee shall be paid to Lender (or any servicing
agent of Lender) in connection with processing any such Transfer, although Owner
shall remain liable to pay or reimburse the reasonable out of pocket costs and
expenses of Lender (or any servicing agent of Lender) and the out of pocket
costs and expenses incurred by, and fees charged by, the Rating Agencies in
connection with the review, approval and documentation of any Transfer as
provided in Section 2.16(e).
 
 1.8           The
following Section 2.16(b)(viii) is hereby inserted immediately following Section
2.16(b)(vii) of the Indenture:
 
 "Processing
Fee Exempt Transfers; "Processing Fee Exempt Transfers" shall mean Transfers
which both (A) as to Transfers relating to Owner, satisfy the requirements of
Section 2.16(b)(vii) above, and (B.) either
(1) are a direct result of the death of the owner of the interest which is the
subject of the Transfer, or (2) are to members of, the Immediate Family (as
hereinafter defined) of the owner of the interest which is the subject of the
Transfer, or (3) which do not exceed, in a single or series of related
transactions, 49% of the total direct or indirect legal or beneficial interests
in the entity which is the subject of such Transfer. For the purposes of this
Section 2.16(b)(viii), "Immediate Family" means, with respect to any individual,
(i) such individual's spouse, former spouse, descendants (natural or adoptive),
grandparents, parents and siblings (of the whole or half blood), (ii) the
spouse, former spouse and descendants (natural and adoptive) of such
individual's siblings (of the whole or half blood), and/or (iii) a trust or
trusts for the benefit of one or more members of such individual's Immediate
Family."
 
 1.9           Section
2.21(b)(ii) is hereby amended by adding the following at the end of the first
sentence thereof before the period:
 
 "provided,
however, that so long as no Event of Default shall have occurred and be
continuing hereunder, such annual financial statements need not be audited but
only certified, provided, further, however, that notwithstanding such proviso,
the foregoing shall not limit the Lender's right to require audited financial
statements in accordance with Section 2.16(a)(iii) of any proposed Transferee in
connection with any Transfer described therein."
 
 1.10           Owner
and Lender hereby confirm and acknowledge that the balloon payment of principal
only due on the Maturity Date of the Long Note and referred to therein as the
"Ending Balance" is $10,510,688.05.
 
 2.           Consent.    Owner
and Lender hereby agree and consent to this Amendment,
 
 3.           No Other
Amendments.        Except as
expressly amended by this Amendment, the Indenture, the Assignment and the other
Operative Documents shall continue  in full force and effect and are
confirmed and ratified hereby,' and the liens thereby created shall continue in
full force and effect without abatement or interruption.
 
 4.           Miscellaneous.
 
 (a)           This
Amendment may be executed in any number of counterparts and by different parties
hereto on separate counterparts, each of which shall be deemed to be an
original. Such counterparts shall constitute but one and the same
agreement.
 
 (b)           This
Amendment shall be governed by the laws of the State of New York.
 
 (c)           Each
of the undersigned parties hereto respectively represents that such party has
full power, authority and legal right, to execute, deliver and perform its
obligations pursuant to this Agreement and that this Agreement has been duly
executed and delivered and represents the valid and binding obligations of such
party.
 
 (d)           It
is expressly understood and agreed by the parties hereto that (a) this Amendment
is executed and delivered by Wilmington Trust Company, William J. Wade, or
either or both of them, as applicable, not individually or personally but solely
as trustees of Owner individually or collectively, as applicable, in the
exercise of the powers and authority conferred and vested in them individually
or collectively, as applicable, under the Trust Agreement of Owner dated as of
April 22, 1998 between Wilmington Trust Company and by William J. Wade, as
trustees, and the Deed of Trust Trustee (if any, as identified in Schedule I of
the Indenture), as beneficiary thereunder, (b) each of the representations,
undertakings and agreements herein made on the part of the Owner is made and
intended not as personal representations, undertakings and agreements by
Wilmington Trust Company or by William J. Wade but is made and intended for the
purpose of binding only Owner and (c) under no circumstances shall Wilmington
Trust Company or William J. Wade be personally liable for the payment of any
indebtedness or other obligations of Owner or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by Owner under this Amendment, the Indenture or the other Loan
Documents.
 
 (e)           The
obligations of Owner hereunder are subject to the limitations on liability set
forth in Section 4.3(z) of the Indenture.
 IN
WITNESS WHEREOF, the foregoing instrument has been executed by the undersigned
as of the date above written.
 
 [Signature
pages follow of M-Six Penvest II GP Corp. (Nev.), as general partner of
M-Six
 Penvest
II Limited Partnership (Nev.) and The Capital Company of America
LLC]