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MUTUAL ESTOPPEL AND MODIFICATION AGREEMENT
THIS MUTUAL ESTOPPEL AGREEMENT is made as of this 15th day of December,
1995 by and among PNC BANK, NATIONAL ASSOCIATION (successor by merger to
Provident National Bank) (the "Bank"), THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA ("Prudential") and EQK REALTY INVESTORS I ("EQK").
RECITALS
WHEREAS, the Bank, Prudential and EQK entered into a certain
Subordination and Intercreditor Agreement dated as of December 16, 1992 (the
"Intercreditor Agreement"); and
WHEREAS, the parties wish to make certain statements and agreements
regarding the Intercreditor Agreement and the loans governed thereunder;
NOW, THEREFORE, for good and valuable consideration, the adequacy and
receipt of which are hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. All capitalized terms not defined herein shall have the meanings
given such terms in the Intercreditor Agreement.
2. The Bank hereby certifies as follows:
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(a) The outstanding principal amount of the New Provident Note, as
amended and restated by the Second Amended and Restated Note (the "PNC Restated
Note") dated as of December 15, 1995 (collectively, the "PNC Note") is
$1,587,430;
(b) The rate of interest under the PNC Note is either 1 5/8% above
the Euro-Rate (as such term is defined in the First Amendment to Second
Amended and Restated Loan Agreement dated as of December 15, 1995 (the "PNC
First Amendment") between EQK and the Bank) or 1 1/8% above the Prime Rate (as
such term is defined in the PNC First Amendment);
(c) There are no scheduled monthly payments of principal required
under the PNC Note; and
(d) To the best of PNC's knowledge, there exist no defaults under the
Note and the Subordinate Loan Documents, nor do any circumstances exist with
which the passage of time, or the giving of notice, or both, would constitute a
default under the PNC Note or the other Subordinate Loan Documents.
3. Prudential hereby certifies as follows:
(a) The outstanding principal amount under the New Prudential Note,
as amended by the Note, Mortgage and Loan Modification Agreement dated as of
December 15, 1995 (the "Prudential Modification Agreement") between Prudential
and EQK (collectively, the "Prudential Note") is $44,125,054.68;
(b) The rate of interest under the Prudential Note is 8.54% per
annum;
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(c) The monthly payment of principal and interest required to be paid
under the Prudential Note is $340,536.00; and
(d) To the best of Prudential's knowledge, there exist no defaults
under the Prudential Note and the Senior Loan documents, nor do any
circumstances exist which with the passage of time, or the giving of notice,
or both, would constitute a default under the Prudential Note or the other
Senior Loan Documents.
4. Borrower hereby certifies that the statements made by the Bank and
Prudential in paragraphs 2 and 3 above, respectively are true and correct and
that there exist no defaults under any of the Subordinate Loan Documents or
Senior Loan Documents nor do any circumstances exist which with the passage of
time, or the giving of notice, or both, would constitute a default under any of
the subordinate Loan Documents or the Senior Loan Documents.
5. Bank confirms to and agrees with Prudential as follows: (a) that the
Subordinate Loan Documents, including the amendments and modifications
hereinabove, remain subordinate to the Senior Loan Documents, including the
amendments and modifications thereto referred to hereinabove; (b) the Contract
Amount referred to in Section 4(b)(i)(A) of the Intercreditor Agreement shall be
in the interest rate on the PNC Restated Note; (c) the Pay Rate referred to in
Section 4(b)(i)(B) of the Intercreditor Agreement shall be the interest rate on
the Prudential Note (i.e. 8.54% per annum).
6. The parties hereby agree and confirm (a) that all references to any
or all of the Senior Loan Documents or Subordinate Loan Documents or Subordinate
Loan Documents contained in the
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Intercreditor Agreement shall mean the Senior Loan Documents as amended
by the Prudential Modification Agreement and the Subordinate Loan Documents as
amended by the PNC First Amendment and the PNC Restated Note; (b) all of the
terms and conditions of the Intercreditor Agreement shall be extended until all
sums under the Senior Loan Documents have been paid in full; and (c) that all of
the terms and conditions of the Intercreditor Agreement remain in full force and
effect and binding upon the parties hereto and their respective successors and
assigns.
7. This Agreement may be executed in any number of counterparts which,
taken together, shall constitute one and the same instrument.
8. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties have executed this Mutual Estoppel
Agreement as of this 15th day of December, 1995.
PNC BANK, NATIONAL
ASSOCIATION
By: /s/
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Title: Vice President
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THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/
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Title: Vice President
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EQK REALTY INVESTORS I
By: /s/ Gary L. Werkheiser
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Title: Vice President
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