AMENDMENT NUMBER THREE TO FIRST AMENDED AND
RESTATED ASSUMPTION, EXTENSION AND LOAN AGREEMENT
This Amendment Number Three to First Amended and Restated
Assumption, Extension and Loan Agreement (the "Amendment") is
made as of May 16, 1997 by and among Fleet National Bank, a
national banking association with a place of business at 75 State
Street, Boston, Massachusetts 02109 (the "Lender"), Marvin L.
Slomowitz, individual, with a place of business at 600 Third
Avenue, Kingston, Pennsylvania 18704 (the "Sponsor"), Mark
Centers Limited Partnership, a Delaware limited partnership, with
a place of business at 600 Third Avenue, Kingston, Pennsylvania
18704 (the "Borrower"), and Mark Centers Trust, a Maryland real
estate investment trust, with a place of business at 600 Third
Avenue, Kingston, Pennsylvania 18704 (the "REIT"). Capitalized
terms used in this Amendment shall have the same meaning as set
forth in the Loan Agreement (hereinafter defined) unless they are
otherwise defined in this Amendment. Other capitalized terms not
contained in the Loan Agreement shall have the meanings as set
forth herein.
WITNESSETH THAT:
WHEREAS, Lender, Borrower, REIT and Sponsor entered into
that First Amended and Restated Assumption, Extension and Loan
Agreement dated as of May 30, 1995, as amended by Amendment
Number One to First Amended and Restated Assumption Extension and
Loan Agreement dated as of December 6, 1995, by Amendment Number
Two to First Amendment and Restated Assumption, Extension and
Loan Agreement dated October 21, 1996 and by letter agreement
dated February 27, 1997 from the Lender to the Borrower (the
"Loan Agreement" and collectively with this Amendment, the
"Agreement") which established a so-called revolving line of
credit subject to the terms of the Loan Agreement and the
Consolidated Revolving Credit Note; and
WHEREAS, Borrower has requested the Lender to extend the
only remaining outstanding Application and Agreement for Standby
Letter of Credit No. RS1034937 dated March 27, 1995 from the
Borrower to the Lender and Standby Letter of Credit No. RS1034937
dated March 30, 1995 from the Lender in favor of John Hancock
Mutual Life Insurance Company in the amount of $1,740,000; and
WHEREAS, Lender is willing to extend the SBLC upon the
condition that the Borrower enter into this Amendment of the Loan
Agreement;
NOW, THEREFORE, the parties hereto, in consideration of Ten
Dollars ($10.00) and other valuable consideration paid, the
receipt and sufficiency of which is hereby acknowledged by each,
hereby act and agree as follows:
1. Amendments.
(a) Subparagraph (a) of Subsection 2.1.2 of the Loan
Agreement entitled "Existing Loan Indebtedness" is hereby
stricken and the following is substituted therefor:
"(a) Consolidated Note dated June 3, 1993 from the
Borrower to Fleet-Mass in the original principal amount of
$40,000,000.00 as assigned to the Lender pursuant to that certain
Allonge to Promissory Note dated as of March 30, 1995 and amended
by a Second Allonge to Consolidated Note dated May 30, 1995;"
(b) Subsection 2.2 of the Loan Agreement entitled
"Existing Loan Indebtedness" is hereby stricken in its entirety
and the following is substituted therefor:
"The Borrower and Lender hereby acknowledge and agree
that as of May 16, 1997, there is no principal amount advanced by
and due to the Lender under the Consolidated Note (the "Present
Advanced Principal") and the aggregate principal amount of the
SBLC issued by the Lender on behalf of the Borrower (the "Present
Committed Principal") is $1,740,000 pursuant to SBLC No.
RS1034937."
(c) Subsection 3 of the Loan Agreement entitled
"Maximum Loan Amounts; Revolving Line of Credit Loan" is hereby
amended by striking therefrom the words the lesser of $12,000,000
(the "Maximum Loan Amount") or an amount equal to the Borrowing
Base at such time" and by substituting therefor the words
$1,740,000 (the "Maximum Loan Amount.").
(d) (i) Subsection 4.2 of the Loan Agreement entitled
"Evidence of Indebtedness" is hereby amended by striking
therefrom the words "shall mature on May 31, 1997 (the "Maturity
Date")" and substituting therefor the words "shall be payable on
demand but in any event no later than on March 15, 1998 (the
"Maturity Date").
2
(ii) Said Section 4.2 is further amended by adding
the following paragraph thereto "The SBLC shall be extended to a
date not later than March 15, 1998 subject to the terms of this
Agreement."
(e) With respect to Subsections 2.3, and 3 entitled
"Amendment and Restatement," and "Maximum Loan Amounts; Revolving
Line of Credit Loan', respectively, and Sections 4-4.13,
inclusive, and the Loan Agreement generally, the Borrower and the
Lender hereby agree that as of the date hereof the Revolving Line
of Credit created by the Loan Agreement is hereby modified and
amended to a be non-revolving line of credit to the effect that
any amounts advanced by the Lender pursuant to the Agreement from
and after the date hereof may not be reborrowed once same have
been repaid. The term "Line of Credit" under the Loan Agreement
is hereby amended to mean a line of credit on which amounts may
be advanced pursuant to the Agreement but which amounts may not
be reborrowed once same have been repaid. From and after the
date hereof, any outstanding Readvances and any Readvances made
after the date hereof pursuant to the Agreement shall be payable
on demand and shall constitute Prime Rate Advances under the
Agreement. In addition from and after the date hereof the
Agreement is hereby modified and amended by deleting words
"Consolidated Revolving Credit Note" wherever they appear and by
substituting therefor the words "Consolidated Credit Note."
(f) Subsection 4.6 of the Loan Agreement entitled
"Borrowing Base" is hereby stricken in its entirety.
(g) Subsection 4.13 (untitled) is hereby stricken in
its entirety and the following is substituted therefor:
"Without limiting in any way any of the Lender's rights
under the SBLC, the Borrower hereby acknowledges that the Lender
is authorized under the SBLC to charge any accounts of the
Borrower with the Lender, including the Wal-Mart Escrow Account,
(hereinafter defined) and that, at the option of the Lender, to
make an advance under the Consolidated Credit Note (a Readvance
hereunder) in order to (a) satisfy any obligations owing to the
Lender under the SBLC, (b) to secure the Borrower's Obligations
to the Lender with cash collateral to be held on deposit with the
Lender or (c) to fund drawings under the SBLC. Any such advance
shall be a Prime Rate Readvance and shall be payable on demand
and any portion thereof which is repaid may not be reborrowed.
3
(h) The Loan Agreement is hereby further amended by
adding Subsections 4.14, 4.15 and 4.16 entitled, "Additional
Collateral - Cash Collateral," "Disbursement of Cash Collateral,"
and "Grant of Security Interest" as follows:
"4.14 Additional Collateral - Cash Collateral. With
the execution of this amendment, the Borrower shall deposit with
the Lender to be held in escrow pursuant to the terms of this
Agreement, a cash deposit in the initial amount of $1,740,000
(the "Wal-Mart Escrow Fund") to be held in a separate account
(the "Wal-Mart Escrow Account") to fund the completion of the
construction of a Wal-Mart store at Ledgewood Mall, Ledgewood,
New Jersey ("Ledgewood Wal-Mart Store"), in accordance with the
terms and provisions of that certain Amended and Restated Lease
Agreement dated July 11, 1996 by and between the Borrower and
Wal-Mart Stores, Inc., as amended from time to time (the "Wal-
Mart Lease"). The Borrower shall use due diligence to complete
the construction of Ledgewood Wal-Mart Store on or before the
final completion dated stated in the Wal-Mart Lease. The Wal-
Mart Escrow Account shall be held in a so-called premium master
fund account bearing interest at such rates as may be announced
by the Lender from time to time. Such amounts shall be disbursed
as provided in Section 4.15 of this Agreement.
4.15 Disbursement of Wal-Mart Escrow Account. Subject
to all the terms and conditions of this agreement and so long as
there exists no Default hereunder, funds held in the Wal-Mart
Escrow Account to complete the Ledgewood Wal-Mart Store may be
disbursed upon the following terms and conditions:
(1) Lender shall have received the following documents
in form and substance satisfactory to the Lender
(a) copies of construction plans and specifications as
defined in the Wal-Mart Lease (Wal-Mart Lease Exhibits B and C)
(b) copies of building permits and driveway entrance
permits and any other permits necessary for commencement and
completion of construction of the Wal-Mart Store
(c) copies of Construction Contracts
(d) copy of Schedule of Work
(e) copies of Cost Breakdown of Work and Trades
4
(f) Such other documents Lender may request concerning
the construction of the Ledgewood Wal-Mart Store.
Items (a) - (i), inclusive, are hereinafter referred to
as the "Construction Documents."
(2) Disbursements shall be made from the Wal-Mart Escrow
Account ("Wal-Mart Advances"), but not more frequently than
monthly, upon the Lender's receipt of the following documents in
form and substance satisfactory to the Lender; provided, however,
no requested disbursement (or partial payment thereof) shall be
made from the Wal-Mart Escrow Account unless the Lender is
satisfied the balance remaining in such account after the
requested disbursement exceeds the projected cost of completion
of the Ledgewood Wal-Mart Store.
(a) Borrower's Certificate and Request that the cost
to complete the Wal-Mart Store shall not exceed the amount
remaining in the Wal-Mart Escrow Account after the requested
disbursement and that there are no changes to the Construction
Documents other than those previously disclosed to the Lender.
Such certification shall be in the form attached hereto as
Exhibit D.
(b) The requested Requisition on AIA Forms G702 and
G703, together with Lien Waivers from the General Contractor and
each subcontractor performing work prior to the requested
disbursement and receipts for prior payments from such
contractors and subcontractors. Said requisition forms shall be
executed by the contractor and Borrower's Architect. As used
herein "Borrower's Architect" shall mean the Wal-Mart Architect
or the Wal-Mart Construction Manager.
(c) Reports satisfactory to the Lender by its
construction consultant/engineer approving the requisition and
compliance with the Contract Documents.
(d) Such other documents and certifications deemed
appropriate and advisable by Lender or its counsel to administer
properly disbursements from the Wal-Mart Escrow Account.
5
(e) Proof of compliance with the provisions of Exhibit
E entitled "Construction Advances" and attached hereto as Exhibit
E and by this references made a part hereof."
4.16 Grant of Security Interest. The Borrower hereby
pledges, assigns and grants to Lender, as security for the prompt
observance and performance by Borrower of all other terms,
conditions and provisions of the Agreement and the Loan Documents
on the Borrower's part to be observed and performed, all of
Borrower's right, title, and interest in and to the Wal-Mart
Escrow Fund and the Wal-Mart Escrow Account (collectively, the
"Collateral"), and Borrower agrees that Lender shall have a
security interest (as defined in the Uniform Commercial Code) in,
and a banker's lien and right of set-off against, the Collateral.
In addition, the Borrower shall not further pledge, assign or
grant any security interest in the Collateral or permit any lien
or encumbrance to attach thereto, or any levy to be made thereon,
or any UCC-1 Financing Statements, except those naming Lender as
the secured party, to be filed with respect thereto.
Upon an Event of Default, in addition to the rights and remedies
in this Agreement, at Lender's option, Lender shall be entitled
to exercise all rights and remedies available to it under the
Uniform Commercial Code of the Commonwealth of Massachusetts.
The Borrower (a) shall execute any instruments or take any steps
required by Lender in order that notice of the security interest
granted and assigned by Borrower to Lender under this Agreement
shall be given to all appropriate parties and/or as may be
required to enable Lender to enforce its rights under this
Agreement, (b) shall execute, at the request of Lender, all UCC-1
Financing Statements and other instruments and documents required
by Lender to perfect the security interest intended to be created
under this Agreement.
(i) Subparagraph (a) of Subsection 6.1 of the Loan
Agreement is hereby stricken and the following is substituted
therefor:
"(a) the Third Allonge to Consolidated Note in
substantially the form attached hereto as Exhibit A (the
"Consolidated Credit Note").":
6
(j) Subparagraph (ii) of Subsection 8.9.2 is hereby amended
by striking therefrom the words "and all accounts receivable and
accounts payable which have been outstanding for more than ninety
(90) days".
(k) Subsection 8.11 of the Loan Agreement, entitled
"Mortgaged Property Debt Service Coverage" is hereby amended by
striking therefrom the following words:
"Annualized Operating Income shall be calculated as of the
end of each Fiscal quarter and shall at times be equal to or
greater than 225% of Projected Debt Service."
and by substituting therefor the following:
"Annualized Operating Income shall be calculated as of the
end of each fiscal quarter and shall at all times be greater than
$400,000."
(l) Subsection 8.11.3 of the Loan Agreement entitled
"Defined Operating Expenses" is hereby amended as follows:
(i) by striking from subparagraph (a) thereof the
following words:
"plus (ii) an allowance for management fees equal to 4%
of Eligible Revenues as of such date, plus (iii) a quarterly
replacement reserve allowance of two and one-half cents (2.5
cents)per square foot of Rental Space in the Mortgage
Properties".
(ii) by striking from said subparagraph (a) "(i)".
(iii) by striking therefrom subparagraph (b) in its
entirety.
(m) Subsection 8.12 of the Loan Agreement entitled "Overall
Debt Service Coverage" is hereby amended by striking therefrom
the words 175% of Debt Service" and substituting therefrom the
words "140% of Debt Service."
(n) Subsection 8.13.1 of the Loan Agreement entitled
"Funded Debt to Restated Value" is hereby stricken in its
entirety.
7
(o) Subsection 8.14 of the Loan Agreement entitled
"Tangible Net Worth" is hereby stricken in its entirety.
(p) Subsection 8.15 of the Loan Agreement entitled
"Liquidity" is hereby stricken in its entirety.
(q) Subsection 8.16 of the Loan Agreement entitled
"Unimproved Real Estate" is hereby stricken in its entirety.
(r) Subsection 10.3 of the Loan Agreement entitled
"Distributions" is hereby stricken in its entirety and the
following substituted therefor:
"10.3 Distributions. The REIT shall not make any
Distribution, including Distributions to the owner(s) of
operating partnership units of the Borrower, unless it shall have
given the Lender at least ten (10) days prior written notice
thereof identifying such Distribution, the amount thereof and the
Person or persons to whom it is to be made; provided however, if
at the time of any Distribution there shall exist an Event of
Default which has not been cured to the satisfaction of the
Lender, then the amount of such Distribution shall not exceed the
minimum amount which the REIT must distribute to retain its legal
status as a REIT."
(s) Section 18 of the Loan Agreement entitled "Notices" is
hereby amended by striking the address of the Lender stated
therein and substituting therefor the following "Fleet National
Bank, 75 State Street, Mail Stop: MA BO F11C, Boston,
Massachusetts 02109-1810, Attention: Thomas T. Hanold, Vice
President, Commercial Real Estate."
(t) Section 20 of the Loan Agreement entitled "Choice of
Law" is hereby amended by striking therefrom the words "the state
of Rhode Island" and by substituting therefor the words "the
Commonwealth of Massachusetts".
(u) Section 21 of the Loan Agreement entitled "Consent to
Jurisdiction" is hereby amended by substituting for the words
"Rhode Island" and "Providence", respectively, whenever they
appear the words "Massachusetts" and "Boston", respectively.
8
2. Payments. At the time of the execution of this Amendment,
the Borrower shall pay to the Lender any current or previously
outstanding legal, appraisal, construction consulting/engineer
and title insurance fees, costs or expenses.
3. Representations and Warranties. To induce Lender to enter
into this Amendment, the Borrower, REIT and Sponsor represent and
warrant to Lender as follows:
(a) The information set forth in this Amendment is true and
correct.
(b) The Borrower, REIT and Sponsor have full power,
authority and legal right to execute and deliver this Amendment,
and this Amendment constitutes the valid and binding obligation
of Borrower, REIT and Sponsor, enforceable against them in
accordance with its terms.
(c) None of the Borrower, the REIT or the Sponsor has any
charge, claim, demand, plea or setoff upon, for or against the
Agreement or any of the Loan Documents. There is no Outstanding
Principal of the Loan as of the date hereof.
(d) If the effect of the amendments contained in this
Amendment are taken into account, no Default exists under the
Agreement or any other Loan Document.
(e) The execution, delivery and performance of this
Amendment has been duly authorized by all requisite partnership
or trust action on the part of the Borrower and the REIT, as the
case may be, and will not violate any partnership documents of
the Borrower or trust documents of the REIT or any provision of
any law or any order of any tribunal, and will not conflict with,
result in a breach of or constitute a default under any mortgage,
security agreement, loan or other credit agreement, or any other
agreement or instrument to which the Borrower or the REIT or the
Sponsor is a party, or result in the imposition of any Lien upon
the assets of the Borrower, the REIT or the Sponsor except as
contemplated by this Amendment.
9
4. Effectiveness of Loan Documents. Except as specifically
amended by this Amendment, the Loan Agreement and the other Loan
Documents remain unmodified and in full force and effect.
References in any of the Loan Documents to the Loan Agreement
shall hereafter be deemed to mean and refer to the Loan Agreement
as amended by this Amendment.
5. Miscellaneous
(a) This Amendment constitutes the entire understanding
among the Borrower, the REIT, the Sponsor and the Lender
concerning the modification of the Loan Agreement. All prior and
contemporaneous negotiations and understandings are merged in
this Amendment.
(b) The captions preceding the sections of this Amendment
are for convenience of reference only. They are not a part of
this Agreement and shall not be considered in construing its
meaning or effect.
(c) The Borrower, the REIT and the Sponsor shall pay the
attorneys' fees and costs incurred by Lender in connection with
the modification of the Loan Agreement evidenced by this
Amendment.
(d) This Amendment shall be construed in accordance with
the laws of the State of Rhode Island as provided in Section 20
of the Loan Agreement, and shall be binding upon the parties
hereto and their respective heirs, personal representatives,
successors and assigns.
IN WITNESS WHEREOF, the parties hereof have caused this
Amendment to be duly executed as a sealed instrument the day and
year first above written.
FLEET NATIONAL BANK
By: /s/ Thomas T. Hanold
Name: Thomas T. Hanold
Title: Vice President
10
MARK CENTERS LIMITED PARTNERSHIP
By: Mark Centers Trust,
its general partner
By: /s/ Joshua Kane
Name: Joshua Kane
Title: Senior Vice President and
Chief Financial Officer
MARK CENTERS TRUST
By: /s/ Joshua Kane
Name: Joshua Kane
Title: Senior Vice President and
Chief Financial Officer
/s/ Marvin L. Slomowitz
Marvin L. Slomowitz
11