October 1, 1993
EQK Realty Investors I
5775 Peachtree Dunwoody Road, Suite 200-D
Atlanta, GA 30342
Attn: Gregory Greenfield
Executive Vice President
First Union National Bank of Georgia
999 Peachtree Street, N.E., 12th Floor
Atlanta, GA 30309
Attn: Mr. Neil Morgan
Trust Administrator
RE: Cash Management and Security Agreement by and among EQK
Realty Investors I, The Prudential Insurance Company of
America and First Union National Bank of Georgia dated
as of December 15. 1992 (the 'Cash Management Agreement')
Gentlemen:
EQK has requested that we modify certain procedures set forth in the Cash
Management Agreement. Prudential desires to enter into this letter agreement to
confirm that it will agree to the changes in procedure set forth below until
Prudential decides, in its sole discretion, to void the changes set forth below
and to instruct you to act in accordance with the original provisions under the
Cash Management Agreement.
Accordingly, until you are notified by Prudential to the contrary, please
refer to this letter with regard to the specified items:
1. Elimination of Mid-Year Review and Revision of Capital Budget. EQK shall
not be required to perform the mid-year revision of the Capital Budget or the
simultaneous revisions to the Operating Budget, Leasing Plan or Cash Flow
Summaries required by Section 3.2 of the Cash Management Agreement.
2. Restoration of Operating Reserve. Notwithstanding anything to the
contrary set forth in Section 4.8(d) of the Cash Management Agreement, EQK shall
not be required to obtain Prudential's consent to the transfer for restoration
of the Operating Reserve to $1,000,000 each month. EQK shall have the right to
submit a certification in the form of Exhibit 'F-2'
attached hereto and made a part hereof in lieu of Exhibit 'F' required pursuant
to Section 4.3(d) of the Cash Management Agreement, and Escrow Agent shall
accept such certificate in lieu of Exhibit 'F' required pursuant to the Cash
Management Agreement.
3. Advances for Approved Capital Expenditures Other Than Major Construction
or Major Tenant Work. Notwithstanding anything to the contrary contained in
Section 5.3(a) or 7.1(b) of the Cash Management Agreement, disbursements from
the Capital Reserve Account for Approved Capital Expenditures for capital
improvements and tenant improvements which do not constitute Major Construction
or Major Tenant Work, shall rot require the approval of Prudential. Advances for
such improvements shall be made by Escrow Agent upon receipt of a certificate in
the form of Exhibit 'H-1' from EQK attached hereto and made a part hereof. EQK
shall simultaneously send to Prudential a copy of any such certificate sent to
Escrow Agent.
4. Effect of this Letter Agreement; Procedures May Be Reinstated by
Prudential. The parties hereto acknowledge and agree that, at Prudential's sole
option, Prudential shall have the right to render any or all of the procedures
set forth above null and void and to return to the procedures outlined in the
Cash Management Agreement. Except as modified hereby, all procedures set forth
in the Cash Management Agreement shall remain in full force and effect. All
capitalized terms used but
not defined in this letter shall have the meanings ascribed to such terms in
the Cash Management Agreement.
If you agree with the foregoing and intend to be legally bound, please
execute the enclosed copy of this letter agreement.
Very truly yours,
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation
By: __________________________________
Accepted and Agreed:
EQK REALTY INVESTORS, I,
a Massachusetts business trust
By: ____________________________________________________________________________
The undersigned Escrow Agent acknowledges the change in instructions as set
forth above and agrees to comply therewith.
FIRST UNION NATIONAL BANK OF
GEORGIA, a national banking
association
By: ____________________________________________________________________________
EXHIBIT 'F-2'
FORM OF NOTICE REQUESTING RELEASES FROM
CASH COLLATERAL ACCOUNT (FOR OPERATING RESERVE)
Dated: _______________________________
First Union National Bank of Georgia
999 Peachtree Street, N.E., 12th Floor
Atlanta, GA 30309
Attn: Mr. Neil Morgan
Trust Administrator
Re: Cash Collateral Account -- Escrow Account No. ______
FBO: The Prudential Insurance Company of America
under Cash Management and Security Agreement dated
as of December 15, 1992
Dear Sirs:
This request is made pursuant to the Cash Management and Security Agreement
(the 'Cash Management Agreement') dated as of December 15, 1992 by and between
EQK Realty Investors I ('EQK'), The Prudential Insurance Company of America
('Prudential') and First Union National Bank of Georgia (the 'Escrow Agent').
Capitalized terms used herein shall have their respective meanings as set forth
in the Cash Management Agreement.
EQK hereby certifies to Prudential as follows:
1. No Event of Default (or event which, with notice or the passage of time
or both, shall constitute an Event of Default) has occurred and is continuing
under the Loan Documents;
2. The balance in the Operating Reserve as of __________ is $__________;
3. Pursuant to the Cash Management Agreement, EQK is entitled to the
disbursement of the sum requested hereby, and such disbursement will not result
in an insufficiency in the balance of the Cash Collateral Account for the
purposes set forth in sections 4.3(a) through 4.3(c) of the Cash Management
Agreement.
Accordingly, EQK hereby requests Escrow Agent to disburse the sum of
$__________ (a maximum of $1,000,000 minus the amount set forth in Section 2
above) from the Cash Collateral Account to EQK to be deposited in the Operating
Reserve.
EQK further requests that sums released from the Cash Collateral Account
be transferred to or for the benefit of EQK in accordance with the wiring
instructions set forth below.
Wiring Instructions:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Very truly yours,
EQK REALTY INVESTORS I
By: __________________________________
Name:
Title:
cc: The Prudential Insurance Company of America
Exhibit 'H-1'
Form of Notice Authorizing Releases from
the Capital Reserve Account (for Capital Expenditures)
Dated:__________ , 199_
First Union National Bank of Georgia
as Escrow Agent
999 Peachtree Street, N.E., 12th Floor
Atlanta, GA 30309
Attn: Mr. Neil Morgan
Trust Administrator
Re: Capital Reserve Account -- Escrow Account No. ______
FBO: The Prudential Insurance Company of America
under Cash Management and Security Agreement dated
as of December 15, 1992
Dear Sirs:
This Certificate and Application is made pursuant to the Cash Management
and Security Agreement (the 'Cash Management Agreement') dated as of December
15, 1992 by and between EQK Realty Investors I ('EQK'), The Prudential
Insurance Company of America ('Prudential') and First Union National Bank of
Georgia (the 'Escrow Agent'). Capitalized terms used herein shall have their
respective meanings as set forth in the Cash Management Agreement.
EQK hereby certifies as follows:
1. No Event of Default (or event which, with notice or the passage of time
or both, shall constitute an Event of Default) has occurred and is continuing
under the Loan Documents;
2. The work covered by this request does not constitute Major Construction
or Major Tenant Work;
3. The work and materials for which payment is requested have been
physically incorporated into the Property (or stored in a secure manner on the
Property) and the services for which payment is requested have been fully
performed;
4. The value of each item of the work and services is at least as great as
the amount set forth below (individually and collectively);
5. That generally the work and materials conformed and all services
performed have conformed with all applicable rules and regulations of the public
authorities having jurisdiction;
6. Pursuant to the Cash Management Agreement, EQK is entitled to the
disbursement of the sum requested hereby; and
7. Payment for the items described below has been made or will be made with
the proceeds of the funds requested hereby.
EQK hereby requests the release of $__________ from the Capital Reserve
Account for the following Capital Expenditures in the amounts, with respect to
the vendors and payees at the Property and for the work or services described
below:
VENDORS/ DESCRIPTION OF
AMOUNT PAYEES PROPERTY WORK OR SERVICES
- --------------------------- --------------------------- --------------------------- ---------------------------
EQK hereby requests that the aggregate sum set forth above be transferred from
the Capital Reserve Account to or for the benefit of EQK in accordance with the
wiring instructions set forth below.
Wiring Instructions:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Very truly yours,
EQK REALTY INVESTORS I
By: __________________________________
Name:
Title:
cc: The Prudential Insurance Company of America