1
AMENDED MUTUAL ESTOPPEL AND MODIFICATION AGREEMENT
THIS AMENDED MUTUAL ESTOPPEL AND MODIFICATION 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 entered into a Mutual Estoppel and Modification
Agreement dated as of December 15, 1995 (the "Original Estoppel"); and
WHEREAS, the parties wish to correct a typographical error contained in
the Original Estoppel and confirm certain understandings as set forth herein;
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.
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2. Paragraph 2(b) of the Original Estoppel is hereby amended by deleting
the number "1 5/8%" appearing on the first line thereof and substituting the
number "2 5/8%" in its place.
3. Borrower hereby certifies that the correction to the Original
Estoppel as set forth above is true and correct.
4. The parties agree that notwithstanding the fact that the Contract
Amount may be less than the Prudential Pay Rate, EQK shall be permitted to make
debt service payments to the Bank based on the Prudential Pay Rate (i.e. 8.54%
per annum); provided, however, such payments shall not exceed the Cap Amount.
All of the other terms set forth in Section 4(b)(i) of the Intercreditor
Agreement shall remain in full force and effect.
5. The parties hereby agree and confirm that except as modified hereby,
all of the terms and conditions of the Original Estoppel and Intercreditor
Agreement remain in full force and effect and binding upon the parties hereto
and their respective successors and assigns.
6. This Agreement may be executed in any number of counterparts which,
taken together, shall constitute one and the same instrument.
7. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania.
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IN WITNESS WHEREOF, the parties have executed this Amended Mutual
Estoppel and Modification Agreement as of this 15th day of December, 1995.
PNC BANK, NATIONAL ASSOCIATION
By: /s/
----------------------------
Title: Vice President
-------------------------
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/
----------------------------
Title: Vice President
-------------------------
EQK REALTY INVESTORS I
By: /s/ William G. Brown, Jr.
----------------------------
Title: Vice President
-------------------------
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EQK REALTY INVESTORS I
SECRETARY'S CERTIFICATE
The undersigned, being the duly elected Secretary of EQK Realty
Investors I, a Massachusetts business trust (the "Trust"), does hereby certify
that the following resolutions were unanimously adopted at a meeting of the
Trustees held on December 12, 1995 and remain in full force and effect as of
this date:
Whereas, the Trust's existing financing with The Prudential Insurance
Company of America ("Prudential") and PNC Bank, National Association ("PNC")
matures on December 15, 1995;
Whereas, both Prudential and PNC have presented the Trust with
proposals to extend the maturity date of their respective loans to December
15, 1996;
Whereas, Harrisburg East Mall remains as the only real estate asset of
the Trust, the Trust has previously established its need to sell Harrisburg
East Mall at such a time as a buyer willing and able to pay a reasonable price
therefor can be identified and the Trust's adviser has identified and continues
to work with entities which may prove to be capable buyers of such property;
Whereas, the continuing uncertainty surrounding the use or assignment
of the Wanamaker building at Harrisburg East Mall will likely have to be
resolved before the true interest of such potential buyers and the price they
would offer can be determined;
Whereas, such uncertainty also seriously impacts the ability of the
Trust to refinance its existing debt with another lender and any new lender
would in any event require the Trust to undertake a due diligence effort
exposing the Trust to substantial costs which may not be warranted by the
likely remaining holding period of the property;
Whereas, the Declaration of Trust provides in Section 5.2(i) that the
borrowings of the Trust shall not exceed 50% of the Trust's Total Assets, as
therein defined (not including intangibles) unless and until the Trustees
determine that the borrowings in excess of such percentage are in the best
interest of the Trust;
Whereas, at the time of the 1992 extension and restructuring of the
Prudential and PNC loans, the Trustees determined that due to the decline in
the value of the Trust's Total Assets, the borrowings of the Trust had at some
point in time previously exceeded and at the time of such 1992 extension and
restructuring exceeded 50% of the value of the Trust's Total Assets;
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Whereas, the Trustees have determined that the continuation of the
Trust's current borrowings with Prudential and PNC, as recently reduced by
application of the net proceeds from the Trust's sale of Castleton Park, is in
the best interest of the Trust as it is not advisable to attempt a refinancing
of such debt at the current time given the uncertainty as to the disposition or
use of the Wanamker building and the expected short holding period of such
property;
Whereas, the total of the Prudential and PNC loans, together with such
other items as must be considered "borrowings" (including deferred fees of the
Trust's adviser), does not exceed the 75% limitation set forth in the Indenture
of Trust; and
Whereas, in light of the factors outlined above, the terms and
conditions proposed by Prudential and PNC appear reasonable and in the best
interests of the Trust.
IT IS HEREBY RESOLVED, that the Trustees, including the Independent
Trustee, hereby approve the extension of the Prudential loan for a period of
one year, upon terms and conditions consistent with those outlined in the
attached letter from Drinker Biddle & Reath and the accompanying draft loan
application document or such other terms and conditions as the Trust's adviser
may deem to be in the best interests of the Trust;
FURTHER RESOLVED, that the Trustees, including the Independent
Trustees, hereby approve the extension of the PNC loan for a period of one
year, upon terms and conditions consistent with those outlined in the attached
Summary of Terms and conditions from PNC or such other terms and conditions as
the Trust's adviser may deem to be in the best interest of the Trust;
FURTHER RESOLVED, that the Trustees find it appropriate and in the
best interest of the Trust for the borrowings of the Trust to exceed 50% of
the value of the Trust's Total Assets (not including intangibles), subject to
the 75% limitation set forth in Section 5.2(i) of the Indenture of Trust;
FURTHER RESOLVED, that the Trust's adviser and officers are authorized
to employ the services of such attorneys. surveyors, title examiners and other
third party service providers as may be necessary to effect the transactions
contemplated by the foregoing resolutions, and to pay reasonable fees for their
services;
FURTHER RESOLVED, that as the Trust's adviser has waived any right to
a fee for handling the loan extensions hereby approved, the adviser shall be
reimbursed for in-house legal fees at a rate of $100 per hour plus expenses
incurred in effecting such transactions;
FURTHER RESOLVED, that Phillip E. Stephens, Gregory R. Greenfield,
William G. Brown, Jr., Gary L. Werkheiser of Linda K. Schear, as officers of
the
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Trust, each acting alone, be and hereby are authorized to take such actions and
execute such documents on behalf of the Trust as they may deem necessary or
appropriate in connection with the foregoing resolutions including, but not
limited to extension agreements, notes, mortgages and affidavits.
FURTHER RESOLVED, that all documents executed by any of said officers
on behalf of the Trust shall be binding on and enforceable against the Trust
as if such documents were executed by each of the Trustees.
This 15th day of December, 1995.
/s/ Linda K. Schear
------------------------------------
Linda K. Schear, Secretary
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EQK REALTY INVESTORS I
INCUMBENCY CERTIFICATE
The undersigned Secretary of EQK Realty Investors I, a Massachusetts
business trust (the "Trust") does hereby certify that the following persons are
duly elected officers of the Trust, having been elected at the Annual Meeting of
the Trustees on June 6, 1995, to serve until the next Annual Meeting of the
Trustees or until such time as their successors are duly elected and qualified:
Phillip E. Stephens.............................. President
Gregory R. Greenfield............................ Executive Vice President
and Treasurer
Gary Werkheiser.................................. Vice President
Linda K. Schear.................................. Secretary
William G. Brown, Jr............................. Vice President and
Controller
Scott Boggio..................................... Vice President
The undersigned Secretary further certifies that there have been no
amendments or modifications to the Amended and Restated Declaration of Trust of
EQK Realty Investors I, as executed as of February 27, 1985 and amended as of
March 5, 1986, nor to the Trustees' regulations of EQK Realty Investors I as
adopted as of October 11, 1984 and amended on June 3, 1985 and September 16,
1986.
This 15th day of December, 1995.
/s/ Linda K. Schear
--------------------------------------
Linda K. Schear, Secretary
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[EQK
REALTY INVESTORS
LETTERHEAD]
December 15, 1995
5775 Peachtree Dunwoody Road
PNC Bank, National Association Suite 200-D
Real Estate Finance Division Atlanta, GA 30342-1505
P.O. Box 7648 (404) 303-6100
Broad and Chestnut Streets
Philadelphia, Pennsylvania 19101
Ballard Spahr Andrews & Ingersoll
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103-7599
Ladies and Gentleman:
I refer to the Summary of Terms and Conditions dated December 7, 1995
(the "Term Sheet"), by and between EQK Realty Investors I, a Massachusetts
business trust ("EQK") and PNC Bank, National Association ("PNC") for the
extension and amendment of an existing mortgage loan (the "Loan").
The Loan will be extended and modified by that certain Second Amended
and Restated Note between EQK and PNC, dated as of December 15, 1995 (the
"Restated Note"), the First Amendment to Second Amended and Restated Loan
Agreement between EQK and PNC, dated as of December 15, 1995 (the "Loan
Agreement Amendment") and the Disclosure for Confession of Judgment dated as of
December 15, 1995 (the "Disclosure"). In addition, EQK has executed that certain
Mutual Estoppel and Modification Agreement among EQK, The Prudential Insurance
Company of America and PNC, dated as of December 15, 1995 (the "Estoppel
Agreement"), modifying and extending the Intercreditor Agreement, as referred to
therein.
Pursuant to the Term Sheet, and as additional consideration to induce
PNC to extend and modify the Loan, EQK has paid to PNC a Fee of $15,874.30.
The Restated Note, Loan Agreement Amendment, Disclosure and the Estoppel
Agreement are hereinafter referred to as the "Loan Extension Documents."
I have acted as inside counsel to EQK in connection with the transaction
contemplated by the Loan Extension Documents. This opinion is based on my
knowledge of the EQK documents, the conduct of its business and the validity and
binding effect of such documents under the authorizing documents of EQK and the
laws of the State of Georgia.
In connection with this opinion, I have reviewed the executed Loan
Extension Documents and have also reviewed the following:
1. Amended and Restated Declaration of Trust of EQK, as executed as of
February 27, 1985 and amended as of March 4, 1986.
THE NAME EQK REALTY INVESTORS I IS THE DESIGNATION OF THE TRUSTEES UNDER A
DECLARATION OF TRUST DATED OCTOBER 8, 1984, AS AMENDED. NEITHER THE TRUSTEES,
SHAREHOLDERS, OFFICERS OR AGENTS OF THE TRUST SHALL BE LIABLE FOR THE
OBLIGATIONS OF THE TRUST, AND ALL PERSONS SHALL LOOK SOLELY TO THE TRUST ESTATE
OF EQK REALTY INVESTORS I FOR THE PAYMENT, PERFORMANCE OR OBLIGATIONS OF THE
TRUST.
9
PNC and Ballard Spahr
December 15, 1995
page two
2. Trustees Regulations dated as of October 11, 1984, as amended.
3. Trustees Resolutions dated as of December 12, 1995.
Based upon and subject to the foregoing, it is my opinion that:
a. The Loan Extension Documents have been duly authorized, executed and
delivered by EQK and constitute the legal, valid and binding obligation of EQK,
enforceable against EQK in accordance with their respective terms.
b. The execution, delivery and performance of the Loan Extension
Documents by EQK will not violate (i) any provision of the Organizational
Documents relating to EQK; (ii) to my knowledge, any order, judgment,
injunction, decree, determination or award presently in effect applicable to
EQK; or (iii) to my knowledge, any instrument under which EQK is bound.
c. No consent, approval or other authorization of or by any court,
administrative agency or governmental authority is required in connection with
the execution, delivery and performance of any of the Loan Extension Documents
by EQK.
d. To my knowledge, there are no actions, suits, proceedings or
investigations pending or threatened against EQK which, if determined adversely
to EQK, would bring into question the validity of the Loan Extension Documents
or the ability of EQK to perform its obligations thereunder.
The opinions set forth herein are subject to the qualification that the
enforcement of the is subject to applicable fraudulent conveyance, creditors
rights, bankruptcy, reorganization and other laws of general application
relating to or affecting the enforcement or creditors' rights or the enforcement
of the security provided by such instruments.
Very truly yours,
/s/ Linda K. Schear
- -------------------
Linda K. Schear
Counsel, EQK Realty Investors I
LKS: ms
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COMMONWEALTH LAND TITLE INSURANCE COMPANY
A Reliance Group Company
8 Penn Center, Philadelphia, Pa. 19103
ENDORSEMENT
To be annexed to and form a part of Commitment/Policy No. D049935CP,
insuring PNC Bank, National Association,
as set forth in said Commitment/Policy.
The said Commitment/Policy is hereby amended in the following manner:
1) date of the policy is hereby amended to be 2/15/1996
2) See attached Schedule B Section 1, Schedule B Section 2 and
endorsements.
TIRBOP -- PA ENDORSEMENT 1070 (GENERAL ENDORSEMENT)
OWNER'S/LESSEE AND/OR LOAN POLICY
The total liability of the Company under said commitment/policy and any
endorsements attached thereto shall not exceed, in the aggregate, the face
amount of said policy and costs which the Company is obligated under the
provisions of said commitment/policy to pay. This endorsement is made a part of
said commitment/policy and is subject to the exclusions, schedules,
endorsements, conditions, stipulations and terms thereof, except as modified by
the provisions hereof. Nothing herein contained shall be construed as extending
or changing the effective date of said Commitment/Policy, unless otherwise
expressly stated.
Dated:
--------------------------------------
Authorized Signatory
TIRBOP -- PA ENDORSEMENT 1070 (General Endorsement)
OWNER'S/LESSEE AND/OR LOAN POLICY
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COMMONWEALTH LAND TITLE INSURANCE COMPANY
17 SOUTH MARKET SQ. SUITE 2-A,
HARRISBURG, PA 17101
717.232.6615
FAX: 717.232.6507
SECOND REVISED
TITLE INSURANCE COMMITMENT
Effective Date: February 15, 1996
Order No. : D145246CPA
HARRISBURG/ LINDA K. TRIVELY (29410)
SCHEDULE A
1. Policy or Policies to be issued:
ALTA Owner's Policy -- Form B 1992 (Rev 10/17/1992)
a. Proposed Insured:
Amount of Insurance:
ALTA Loan Policy -- 1992 (Rev 10/17/1992)
b. Proposed Insured: PNC Bank, National Association
Amount of Insurance: $1,587,430.00
2. The estate or interest in the land described or referred to in this
Schedule and covered herein is a fee simple, and title thereto is
at the effective date hereto vested in:
EQK Realty Investors I, a Massachusetts business trust
3. The land referred to in this Commitment is described below and in
Schedule C attached hereto and made a part hereof.
Note For Information Only:
The land referred to in this Commitment is commonly known as:
Harrisburg East Mall Harrisburg, PA
Swatara Township
Dauphin County, Pennsylvania
mss/lsd
PAGE 1
12
SCHEDULE B SECTION 1
REQUIREMENTS
THE FOLLOWING REQUIREMENTS MUST BE MET:
2. Payment of the full consideration to or for the account of the grantors
or mortgagors.
3. Payment of the premiums, fees and charges for the policy.
4. Possible unfiled mechanics liens and municipal claims.
5. rights of parties in possession as tenants only.
6. Proof that all natural persons in this transaction are of full age and
legally competent.
7. Proof of identity of parties as set forth in Recital.
8. Possible additional assessments for taxes for new construction or for
any major improvements pursuant to provisions of Acts of Assembly
relating thereto, not yet assessed due or payable.
9. TAXES:
Receipts for Township, County and School Taxes for the years 1991 to
1992 inclusive.
Township, County and School Taxes for current year 1996, not yet due and
payable.
(Payment should be verified).
Assessment $34,254,000.00 #64-024-055.
10. WATER AND SEWER RENTS:
Receipts for Water and Sewer Rents for the years 1990 to 1994.
Water and Sewer Rents for current period.
Not yet due and payable.
11. MECHANICS AND MUNICIPAL CLAIMS: None.
INSURING INSTRUMENT OF RECORD:
Mortgage of $3,525,000.000 EQK Realty Investors I to Provident National
Bank (now PNC Bank, National Association) dated 12/16/1992 Recorded
12/22/1992 in Mortgage Book 1886 page 408.
PAGE 2
13
ATTACHED TO AND FORMING A PART OF TITLE INSURANCE COMMITMENT Order No.:
D145246CP
1. $94,719,904.00.
Myles E. Tanenbaum, Raymond H. Wiffcoff, Alton G. Marshall,
Russell E. Palmer, Robert F. Froehlke, Howard Gittis and Henry E.
Beck, Jr., individually but as Trustees of EQK Realty Investors I, a
Massachusetts business trust, under that certain Declaration of Trust
dated as of October 8, 1984.
TO: Salomon Brothers Realty Corp. Dated: December 18, 1985
Recorded: December 20, 1985 in Record Book 699 page 34. Amendment No.
1 to Mortgage dated February 4, 1988 and recorded February 11, 1988
in Record Book 1069, page 261.
ASSIGNED TO: The Prudential Insurance Company of America
Dated: Recorded: February 11, 1988 in Assignment of Mortgage Book
1069 Page 276.
2.
3. $75,688,720.00.
EQK Realty Investors I, a Massachusetts business trust
TO: The Prudential Insurance Company of America
Dated: December 15, 1992 Recorded: December 22, 1992 in Record Book
1886 page 298.
4. $3,525,000.00.
EQK Realty Investors I, a Massachusetts business trust
TO: Provident National Bank
Dated: December 16, 1992 Recorded: December 22, 1992 in Mortgage Book
1886 page 408. Insured.
12.JUDGMENTS: None.
13.FINANCING STATEMENTS:
EQK Realty Investors I (Debtor) filed November 5, 1991 in
Recorder of Deeds Office in Secure Transaction Docket #6532 to The
Prudential Insurance Company of America (Secured Party).
EQK Realty Investors I (Debtor) filed December 22, 1992 in Recorder
of Deeds Office to #6973 to Provident National Bank (Secured Party).
PAGE 3
14
ATTACHED TO AND FORMING A PART OF TITLE INSURANCE COMMITMENT Order No.:
D145246CP
EQK Realty Investors I (Debtor) filed December 22, 1992 in
Prothonotary's Office to #2408 ST 1992 to Provident National Bank
(Secured Party).
EQK Realty Investors I (Debtor) filed December 22, 1992 in
Recorder of Deeds Office to #6972 to The Prudential Insurance
Company of America (Secured Party).
EQK Realty Investors I (Debtor) filed December 22, 1992 in
Prothonotary's Office to #2409 ST 1992 to The Prudential Insurance
Company of America (Secured Party).
14. Proof that the trusts EQK Realty Investors I are still subsisting.
15. Disclosure of Authority of Trustees to encumber real estate.
16. Except attached mortgage.
PAGE 4
15
Mortgage of $94,719,904.00 Myles H. Tannenbaum, Raymond H. Wiffcoff, Alton
G. Marshall, Russell E. Palmer, Robert F. Froehlke, Howard Gittis and Henry E.
Beck, Jr., Trustees of EQK Realty Investors I, a Massachusetts Business Trust
under that certain Declaration of Trust dated as of 10/8/1984 to Salomon
Brothers Realty Corp. dated 12/18/1985 and recorded 12/20/1985 in Record Book
1069 page 261, as same was assigned to The Prudential Insurance Company of
America by Assignment of Mortgage recorded 2/11/1988 in Assignment of Mortgage
Book 1069 page 388, as same was amended and restated by an Amended and Restated
Open End Mortgage and Security Agreement between EQK Realty Investors I and The
Prudential Insurance Company of America dated 12/15/1992 and recorded 12/22/1992
in Record Book 1886 page 298, as same was further amended by a certain Note,
Mortgage and Loan Modification Agreement between the Successor Trustees of EQK
Realty Investors, I and the Prudential Insurance Company of America (showing the
principal due on said Mortgage as $44,125,054.68) dated as of 12/15/1995 and
recorded / /1996 in Record Book Page .
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SCHEDULE B SECTION 2
EXCEPTIONS
ANY POLICY WE ISSUE WILL HAVE THE FOLLOWING EXCEPTIONS UNLESS THEY ARE TAKEN
CARE OF TO OUR SATISFACTION.
1. Unrecorded easements, discrepancies or conflicts in boundary lines,
shortages in area and encroachments which an accurate and complete
survey would disclose.
2. Rights granted to Pennsylvania Power and Light Company in Misc. Book
"N", Volume 11, Page 408; Record Book 1208, Page 536 and Record Book
1208, Page 539.
3. Reservations, conditions and restrictions as set forth in Deed Book "H",
Volume 47, Page 543 and Deed Book "V", Volume 45, Page 455.
4. Declaration of easements, restrictions and covenants by Swatara
Associates dated March 4, 1968, recorded April 22, 1988 in Misc. Book
"R", Volume 12, Page 155.
5. Assignment of Rents and Lessor's Interest in Leases: Swatara Associates
to The Western Savings Fund Society of Philadelphia dated November 4,
1971 and recorded in Misc. Book "C", Volume 14, Page 504. Assignments of
Rents Modification Agreement dated June 17, 1974 recorded June 21, 1974
in Misc. Book "L", Volume 15, Page 700. (This was subordinated to the
lien of Mortgage from Swatara Associates to Continental Assurance
Company by Agreement recorded in Misc. Book "M", Volume 15, Page 435).
6. Terms and conditions as contained in Lease between Swatara Associates,
Lessor, to John Wanamaker, a Memorandum thereof dated March 14, 1968
and recorded in Misc. Book "U", Volume 12, Page 390.
7. Assignment: Swatara Associates to Continental Assurance Company dated
July 12, 1974 in Misc. Book "M", Volume 15, Page 445.
8. Non-Disturbance Agreement: John Wanamaker to Continental Assurance
Company dated July 2, 1974 and recorded July 12, 1974 in Misc. Book
"M", Volume 15, Page 453.
9. Assignment of Rents: Swatara Associates to Continental Assurance Company
dated July 9, 1974 and recorded July 12, 1974 in Misc. Book "M", Volume
15, Page 450.
10. Terms and conditions of Lease, a Memorandum thereof between Swatara
Associates to G.C. Murphy Co., dated September 6, 1968 and recorded in
Misc. Book "V", Volume 12, Page 196.
17
11. Terms and conditions of Lease, a Memorandum thereof between Swatara
Associates to J.C. Penney Co., Inc., dated November 15, 1968 in
Misc. Book "X", Volume 12, Page 633; dated August 11, 1969, recorded
in Misc. Book "M", Volume 13, Page 212. Lease Term Agreements recorded
in Misc. Book "Z", Volume 13, Page 162 and in Misc. Book "D", Volume
14, Page 32 and Misc. Book "F", Volume 16, Page 172.
12. Terms and conditions of Lease and Memorandum thereof between Swatara
Associates to Lane Bryant, Harrisburg East, Inc., dated
September 5, 1969 and recorded in Misc. Book "G", Volume 13, Page 146.
13. Terms and conditions of Lease, a Memorandum thereof between Swatara
Associates to Dauphin Deposit Trust Company, dated October 3,
1969 and recorded in Misc. Book "H", Volume 13, Page 143.
14. Terms and conditions of Lease, a Memorandum thereof between Swatara
Associates to Commonwealth Trading, Inc., dated March 26, 1972
and recorded in Misc. Book "F", Volume 16, Page 955.
15. Terms and conditions of Lease, a Memorandum thereof between Swatara
Associates to Friendly Ice Cream Corp., dated September 30,
1975 and recorded in Misc. Book "N", Volume 16, Page 68.
16. Agreement dated February 15, 1978, Swatara Associates to Harrisburg
Second Company, recorded March 3, 1978 in Misc. Book "X", Volume 16,
Page 681.
17. Deed of Easement: Swatara Associates to Harrisburg Second Company,
recorded March 3, 1978 in Misc. Book "X", Volume 16, Page 698.
18. Adjoining Landowner's Agreement and Crosseasement Agreement between
Swatara Associates and Gimbel Brothers, Inc., dated January 31,
1978 and recorded February 1, 1978 in Misc. Book "W", Volume 16, Page
838.
19. Assignment of Rents and Leases dated January 31, 1978 and recorded
February 1, 1978 in Misc. Book "W", Volume 16, Page 832.
20. Deed of Easement: Swatara Associates to the Commonwealth of
Pennsylvania, Department of Highways, dated October 12, 1967
and recorded February 7, 1968 in Misc. Book "P", Volume 12, Page 543.
21. Subject to public and private rights in that portion of the premises in
the beds of Poor House Road; Legislative Route 618, Friendship Road and
Legislative Route No. 139.
22. Rights granted to Dauphin Consolidated Water Supply Company in Misc.
Book "L", Volume 15, Page 164.
23. Easement: Swatara Associates to Dauphin Consolidated Water Supply
Company in Misc. Book "R", Volume 14, Page 223.
18
24. Landlords Subordination and Consent between Swatara Associates and
Hess's dated July 21, 1978 and recorded August 2, 1978 in Misc.
Book "B", Volume 17, Page 724 and re-recorded October 16, 1978 in
Misc. Book "D", Volume 17, Page 925.
25. Terms of any unrecorded lease or rights of parties in possession, as
tenants only.
26. Rights granted to Bell Telephone Company in Record Book 1511, Page 144.
27. Rights granted to Swatara Township Authority in Misc. Book Y 10, page
465.
28. Conditions as shown on Survey by Gannett Fleming Civil Engineers dated
December, 1992, including the following:
(1) Sewer line right of way to Swatara Township Authority in Misc.
Book Y 10, page 465
(2) Building setback lines of 100 feet from Center line of Paxton
Street and Poor House Road, 40 feet from rights of way lines of
County Prison Road and Friendship Road
29. Memorandum of Lease: EQK Realty Investors I to Hess's Department
Stores, Inc., dated November 30, 1994 and recorded December 13,
1994 in Record Book 2338, page 454.
30. Memorandum of First Amendment to Lease: EQK Realty Investors I to Toys
R Us-PENN, Inc. dated December 5, 1994 and recorded February
28, 1995 in Record Book 2370, page 380.
31. Memorandum of Lease Agreement: EQK Realty Investors I to County of
Dauphin dated April 24, 1995 and recorded June 21, 1995 in
Record book 2428, page 24. (For 100 parking spaces).
32. Rights granted to General Waterworks of Pennsylvania, Inc. in Record
Book 2462, page 451.
33. Subordination and Intercreditor Agreement: Provident National Bank to
The Prudential Insurance Company dated December 16, 1992 and
recorded December 22, 1992 in Record Book 1886, page 459.
34. Absolute Assignment of Leases and Rents and Rental Collection
Agreement: EQK Realty Investors I to The Prudential Insurance
Company of America dated December 15, 1992 and recorded December 22,
1992 in Record Book 1886, page 373.
35. Assignment of Lessor's Interest in Leases: EQK Realty Investors I to
Provident National Bank dated December 16, 1992 and recorded
December 22, 1992 in Record Book 1886, page 439.
19
36. Subordination, Non-disturbance and Attornment Agreement: Prudential
Insurance Company of America, EQK Realty Investors I and The
May Department Stores Company dated October 9, 1995 and recorded
December 21, 1995 in Record Book , page .
ENDORSEMENTS:
The following endorsements will appear in Policy if indicated.
Endorsement Pa. 300 Endorsement Endorsement
20
SCHEDULE C
DESCRIPTION AND RECITAL
ALL THAT CERTAIN parcel of ground with the improvements erected thereon,
situated in Swatara Township, Dauphin County, Pennsylvania as follows:
BEGINNING at a point at the intersection of the eastern right of way line of
Dauphin County Prison Road (50 feet) with the southern legal right of way line
of Paxton Street (80 feet) (Pennsylvania Legislative Route 139, U.S. Route 322
and 422); thence along the southern legal right of way line of Paxton Street,
the following courses and distances: (1) on a curve to the left, having a
radius of 2904.93 feet, an arc length of 1094.32 feet, (a chord bearing and
distance, South 76 degrees 05 minutes 17 seconds East, 1087.85 feet, having a
delta of 21 degrees 35 minutes 02 seconds to the left) to a P.O.C. (Point of
Curve); (2) South 03 degrees 13 minutes 01 second West, 15.50 feet; (3) on a
curve to the right, having a radius of 3057.33 feet, an arc length of 99.01
feet (a chord bearing and distance, South 85 degrees 51 minutes 19 seconds
East, 99.01 feet, having a delta of 01 degree 51 minutes 20 seconds to the
right); (4) South 84 degrees 55 minutes 39 seconds East, 368.47 feet; (5) on a
curve to the left, having a radius of 1940.08 feet, an arc length of 154.25
feet (a chord bearing and distance, South 87 degrees 12 minutes 19 seconds
East, 154.21 feet, having a delta of 04 degrees 33 minutes 20 seconds to the
left); (6) South 89 degrees 28 minutes 59 seconds East, 459.67 feet; (7) North
00 degrees 31 minutes 01 second East, 14.00 feet; (8) South 89 degrees 28
minutes 59 seconds East, 55.42 feet; thence along properties now or formerly of
AMP, Inc., Miller Bros. Venders, Incorporated and Robert M. Mumma, South 42
degrees 44 minutes 39 seconds West, 1015.95 feet; thence along property now or
formerly of Robert M. Mumma, South 42 degrees 15 minutes 24 seconds East,
261.67 feet, to a point in the center of Friendship Road (Dedicated 50.00 feet
right of way); thence along the center line of Friendship Road, South 47
degrees 24 minutes 36 seconds West, 710.75 feet, to a point marked with a
railroad spike on the center line of Friendship Road and Poor House Road
(Pennsylvania Legislative Route 618, Route 441); thence along the centerline of
Poor House Road the following courses and distances: (1) North 40 degrees 39
minutes 11 seconds West, 200.07 feet; (2) North 44 degrees 47 minutes 49
seconds West, 99.80 feet; (3) North 51 degrees 08 minutes 21 seconds West,
100.00 feet; (4) North 62 degrees 07 minutes 21 seconds West, 100.00 feet; (5)
North 71 degrees 26 minutes 21 seconds West, 100.00 feet; (6) North 80 degrees
41 minutes 21 seconds West, 100.00 feet; (7) North 88 degrees 28 minutes 21
seconds West, 499.37 feet; (8) North 81 degrees 35 minutes 47 seconds West,
531.70 feet; to a point marked with a 1/2 inch iron pin; thence North 43
degrees 49 minutes 13 seconds East, 19.05 feet, to a point located on the north
side of Poor House Road; thence along the north side of Poor House Road, the
following courses and distances: (1) North 81 degrees 37 minutes 02 seconds
West, 401.59 feet, to a point marked with a six inch square concrete monument;
(2) North 76 degrees 39 minutes 35 seconds West, 96.614 feet, to a point at the
northeastern corner of Dauphin County Prison Road; thence along the eastern
right of way line of Dauphin County Prison Road (Dedicated 50.00 feet right of
way, August 9, 1968) the following courses and distances: (1) North 18 degrees
43 minutes 11 seconds East 106.87 feet; (2) on a curve to the right, having a
radius of 175.00 feet, an arc
21
length of 99.74 feet (a chord bearing and distance, North 35 degrees 02 minutes
52 seconds East, 98.40 feet, having a delta of 32 degrees 39 minutes 22
seconds); (3) North 51 degrees 22 minutes 33 seconds East, 637.82 feet; (4) on a
curve to the left, having a radius of 425.00 feet, an arc length of 194.33 feet
(a chord bearing and distance North 38 degrees 16 minutes 33 seconds East,
192.65 feet, having a delta of 26 degrees 12 minutes 00 seconds); (5) North 25
degrees 10 minutes 33 seconds East, 481.42 feet, to the point of BEGINNING.
CONTAINING 61.9152 acres of land as shown on Drawing No. I-24046, dated
December 16, 1985, prepared by Gannett Fleming Civil Engineers, Harrisburg,
Pennsylvania.
AND FURTHER, the Commonwealth of Pennsylvania, Department of Highways vacated a
portion of the premises, along Paxton Street, being shown as 0.354 acres on
highway plan, Plot No. 22 of right of way plan for Route No. 767, Section No.
5B, approved by the Governor on July 20, 1967.
BEING the same premises which Swatara Associates, a Pennsylvania limited
partnership, by Deed dated March 6, 1985 and recorded March 13, 1985 in Dauphin
County in Record Book 591, Page 170, conveyed unto Myles H. Tanenbaum, Raymond
H. Wittcoff, Alton G. Marshall, Russell E. Palmer, Robert F. Froehlke, Howard
Gittis and Henry C. Beck, Jr., not individually but as Trustees of EQK Realty
Investors I, a Massachusetts business trust, under that certain Declaration of
Trust dated as of October 8, 1984 as amended.
22
COMMONWEALTH LAND TITLE INSURANCE COMPANY
ENDORSEMENT
USURY -- (SPECIMEN)
To be annexed to and form a part of Commitment/Policy No. insuring
as set forth in said Commitment/Policy.
The said Commitment/Policy is hereby amended in the following manner:
The Company hereby insures the insured against loss or damage, including
attorneys' fees and costs of litigation, which the insured shall sustain by
reason of the entry of any court order or judgment which constitutes a final
determination and adjudges:
That the lien of the mortgage/deed of trust/deed to secure debt referred to in
Schedule A is invalid or unenforceable as to the principal and interest due on
the note or notes secured thereby, said interest being computed in accordance
with the provisions of such mortgage/deed of trust/deed to secure debt or of
said note or notes on the ground that the loan evidenced by the note or notes
secured thereby are usurious under the laws of the State of Pennsylvania at the
date of policy.
The total liability of the Company under said commitment/policy and any
endorsements attached thereto shall not exceed, in the aggregate, the face
amount of said policy and cost which the Company is obligated under the
provisions of said commitment/policy to pay.
This endorsement is made a part of said commitment/policy and is subject to the
exclusions, schedules, endorsements, conditions, stipulations and terms
thereof, except as modified by the provisions hereof.
Nothing herein contained shall be construed as extending or changing the
effective date of said Commitment/Policy, unless otherwise expressly stated.
IN WITNESS WHEREOF COMMONWEALTH LAND TITLE INSURANCE COMPANY has caused its
corporate name and seal to be hereunto affixed by its duly authorized officers
on the day of 19 .
Countersigned COMMONWEALTH LAND TITLE INSURANCE COMPANY
23
length of 99.74 feet (a chord bearing and distance, North 35 degrees 02 minutes
52 seconds East, 98.40 feet, having a delta of 32 degrees 39 minutes 22
seconds); (3) North 51 degrees 22 minutes 33 seconds East, 637.82 feet; (4) on a
curve to the left, having a radius of 425.00 feet, an arc length of 194.33 feet
(a chord bearing and distance North 38 degrees 16 minutes 33 seconds East,
192.65 feet, having a delta of 26 degrees 12 minutes 00 seconds); (5) North 25
degrees 10 minutes 33 seconds East, 481.42 feet, to the point of BEGINNING.
CONTAINING 61.9152 acres of land as shown on Drawing No. I-24046A, dated
November 30, 1984, last recertified and updated December 4, 1992, prepared by
Gannett Fleming Civil Engineers, Harrisburg, Pennsylvania.
AND FURTHER, the Commonwealth of Pennsylvania, Department of Highways
vacated a portion of the premises, along Paxton Street, being shown as 0.354
acres on highway plan, Plot No. 22 of right of way plan for Route No. 767,
Section No. 5B, approved by the Governor on July 20, 1967.
BEING the same premises which Swatara Associates, a Pennsylvania limited
partnership, by Deed dated March 6, 1985 and recorded March 13, 1985 in Dauphin
County in Record Book 591, Page 170, conveyed unto Myles H. Tanenbaum, Raymond
H. Wittcoff, Alton G. Marshall, Russell E. Palmer, Robert F. Froehlke, Howard
Gittis and Henry C. Beck, Jr., not individually but as Trustees of EQK Realty
Investors I, a Massachusetts business trust, under that certain Declaration of
Trust dated as of October 8, 1984 as amended.
24
[COMMONWEALTH
LAND TITLE COMPANY
LOGO] ENDORSEMENT
To be annexed to and form a part of Commitment/Policy No. insuring
as set forth in said Commitment/Policy.
The said Commitment/Policy is hereby amended in the following manner:
Pursuant to and subject to the provisions of the policy, the Company insures
against loss or damage (including without limitation, costs, attorney's fees
and expenses) arising out of the invalidity, unenforceability or impairment of
the priority of the lien of the Insured Mortgage by reason of a final decree of
a court of competent jurisdiction adjudicating that the Insured, by reason of
the Insured having been given, as additional consideration, warrants to
purchase shares in the Mortgagor.
The total liability of the Company under said commitment/policy and any
endorsements attached thereto shall not exceed, in the aggregate, the face
amount of said policy and costs which the Company is obligated under the
provisions of said commitment/policy to pay.
This endorsement is made a part of said commitment/policy and is subject to
the exclusions, schedules, endorsements, conditions, stipulations and terms
thereof, except as modified by the provisions hereof.
Nothing herein contained shall be construed as extending or changing the
effective date of said Commitment/Policy, unless otherwise expressly stated.
IN WITNESS WHEREOF COMMONWEALTH LAND TITLE INSURANCE COMPANY has caused its
corporate name and seal to be hereunto affixed by its duly authorized officers
on the day of A.D. of 19 .
Countersigned COMMONWEALTH LAND TITLE INSURANCE COMPANY
By
President
By
----------------------------------
Authorized Officer or Agent (SEAL)
Attest:
Secretary
ORIGINAL
25
[COMMONWEALTH
LAND TITLE INSURANCE
COMPANY
LOGO] ENDORSEMENT
insuring
To be annexed to and form a part of Commitment/Policy No.
as set forth in said Commitment/Policy.
The said Commitment/Policy is hereby amended in the following manner:
The Company hereby insures the Insured that said land abuts a
physically open street known as Paxton Street, Poor House Road and County
Prison Road; and the Company hereby insures said Assured against loss which
said Assured shall sustain in the event said assurances herein shall prove
to be incorrect.
The total liability of the Company under said commitment/policy and any
endorsements attached thereto shall not exceed, in the aggregate, the face
amount of said policy and costs which the Company is obligated under the
provisions of said commitment/policy to pay.
This endorsement is made a part of said commitment/policy and is subject to the
exclusions, schedules, endorsements, conditions, stipulations and terms
thereof, except as modified by the provisions hereof.
Nothing herein contained shall be construed as extending or changing the
effective date of said Commitment/Policy, unless otherwise expressly stated.
IN WITNESS WHEREOF COMMONWEALTH LAND TITLE INSURANCE COMPANY has caused its
corporate name and seal to be hereunto affixed by its duly authorized officers
on the day of A.D. of 19 .
Countersigned COMMONWEALTH LAND TITLE INSURANCE COMPANY
By
President
By
----------------------------------
Authorized Officer or Agent (SEAL)
Attest:
Secretary
ORIGINAL
26
[COMMONWEALTH
LAND TITLE INSURANCE
COMPANY
LOGO] ENDORSEMENT
POLICY NO.
The Company insures that the covenants, conditions and restrictions
affecting the title to the land contained in
have not been violated and that a future violation thereof will not cause a
forfeiture or reversion of title.
The total liability of the Company under said policy and any endorsement
thereon shall not exceed, in the aggregate, the face amount of said policy and
costs which the Company is obligated, under the conditions and stipulations
thereof, to pay.
This endorsement is made a part of said policy and is subject to the
schedule, conditions and stipulations therein, except as modified by the
provisions hereof.
Nothing herein contained shall be construed as extending or changing the
effective date of said Policy, unless otherwise expressly stated.
IN WITNESS WHEREOF COMMONWEALTH LAND TITLE INSURANCE COMPANY has caused its
corporate name and seal to be hereunto affixed by its duly authorized officers
on the day of 19 .
Countersigned:
By:
President
- ----------------------------
Authorized Signatory (SEAL)
Attest:
Secretary
27
[COMMONWEALTH LAND
TITLE INSURANCE
COMPANY
LOGO]
ENDORSEMENT
POLICY NO.
THE COMPANY ELIMINATES FROM ITS LOAN POLICY THE EXCEPTION READING AS
FOLLOWS:
Unrecorded easements, discrepancies or conflicts in boundary lines, shortages
in area and encroachments which an accurate and complete survey would disclose.
and further insures, except as set forth above, against loss by reason of
encroachment, other than by party walls, whether by the building on the land
encroaching upon adjacent property or by any building on adjacent property
encroaching upon the said land.
The total liability of the Company under said policy and any endorsement
thereon shall not exceed, in the aggregate, the face amount of said policy and
costs which the Company is obligated, under the conditions and stipulations
thereof, to pay.
This endorsement is made a part of said policy and is subject to the
schedule, conditions and stipulations therein, except as modified by the
provisions hereof.
Nothing herein contained shall be construed as extending or changing the
effective date of said Policy, unless otherwise expressly stated.
IN WITNESS WHEREOF COMMONWEALTH LAND TITLE INSURANCE COMPANY has caused its
corporate name and seal to the hereunto affixed by its duly authorized officers
on the day of , 19 .
COUNTERSIGNED: BY:
- ------------------------------------ President
Authorized Signatory (SEAL) ATTEST:
Secretary
28
The Company insures the owner of the indebtedness secured by the insured
mortgage against loss or damage sustained by reason of:
1. Any incorrectness in the assurance that, at Date of Policy:
(a) There are no covenants, conditions or restrictions under which
the lien of the mortgage referred to in Schedule A can be divested,
subordinated or extinguished, or its validity, priority or
enforceability impaired.
(b) Unless expressly excepted in Schedule B:
(1) There are no present violations on the land of any
enforceable covenants, conditions or restrictions nor
do any existing improvements on the land violate any
building setback lines shown on a plat of subdivision
recorded or filed in the public records.
(2) Any instrument referred to in Schedule B as containing
covenants, conditions or restrictions on the land does
not, in addition, (i) establish an easement on the land;
(ii) provide a lien for liquidated damages; (iii) provide
for a private charge or assessment; (iv) proved for an
option to purchase, a right of first refusal or the prior
approval of a future purchaser or occupant.
(3) There is no encroachment of existing improvements located on
the land onto adjoining land, nor any encroachment onto
the land of existing improvements located on adjoining
land.
(4) There is no encroachment of existing improvements located on
the land onto that portion of the land subject to any
easement excepted in Schedule B.
2. Any future violation on the land of any existing covenants,
conditions or restrictions occurring prior to the acquisition of
title to the estate or interest in the land by the insured, provided
the violations results in:
(a) impairment or loss of the lien of the insured mortgage; or
(b) loss of title to the estate or interest in the land if the
insured shall acquire title in satisfaction of the
indebtedness secured by the insured mortgage.
29
3. Damage to existing improvements, including lawns, shrubbery or
trees:
(a) Which are located on or encroach upon that portion of the land
subject to any easement excepted in Schedule B, which
damage results from the exercise of the right to maintain the
easement for the purposes for which it was granted or
reserved;
(b) Resulting from the future exercise of any right to use the
surface of the land for the extraction or development
of minerals excepted from the description of the land or
excepted in Schedule B.
4. Any final court order or judgment requiring the removal from any
land adjoining the land or any encroachment excepted in Schedule B.
5. Any final court order or judgment denying the right to maintain any
existing improvements on the land because of any violation of
covenants, conditions or restrictions or building setback lines
shown on a plan or subdivision recorded or filed in the public
records.
Whenever in this endorsement the words "covenants, conditions
or restrictions" appear they shall not be deemed to refer to or
include the terms, covenants, condition or limitations contained
in an instrument creating a lease.
The total liability of the Company under said Policy and any
endorsements attached thereto shall not exceed, in the aggregate,
the face amount of said Policy and costs which the Company is
obligated under the provisions of said Policy to pay.
This endorsement is made a part of said Policy and is subject
to the exclusions, schedules, endorsements, conditions,
stipulations and terms thereof, except as modified by the
provisions hereof.
Nothing herein contained shall be construed as extending or
changing the effective date of said Policy, unless otherwise
expressly stated.
30
NOTE, MORTGAGE AND LOAN MODIFICATION AGREEMENT
NOTE, MORTGAGE AND LOAN MODIFICATION AGREEMENT (this "Agreement") dated
as of December 15, 1995 by and between SYLVAN M. COHEN, GEORGE R. PEACOCK,
PHILIP E. STEPHENS, ALTON G. MARSHALL AND ROBERT C. ROBB, JR., as Successor
Trustees of EQK REALTY INVESTORS I, a Massachusetts business trust ("EQK"),
having its principal office and place of business at 5775 Peachtree-Dunwoody
Road, Suite 200-D, Atlanta, Georgia 30342, and THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, a New Jersey corporation ("Prudential"), having an office at 1200
"K" Street, N.W., Suite 1000, Washington, D.C. 20005.
BACKGROUND
On December 18, 1985, EQK executed an delivered to Solomon Brothers
Realty Corp. ("Solomon") a certain Zero Coupon Mortgage Note due December 18,
1992 in the face amount of $94,719,904 (the "Zero Coupon Note"). The Zero
Coupon Note was amended and restated in its entirety by an Amended and Restated
Note Agreement dated as of February 4, 1988 by and between EQK and Solomon (the
"First Amended Note"). Immediately following EQK's execution and delivery of
the First Amended Note, the First Amended Note was endorsed to, and all of the
security therefore was assigned to, Prudential in accordance with a certain
Note and Mortgage Purchase and Sale Agreement between Solomon and Prudential.
On or about December 16, 1992, the First Amended Note was partially
paid and was amended and restated in its entirety pursuant to a Second Amended
and Restated Note dated December 16, 1992 in the principal amount of
$75,688,720 (the "Second Amended Note") which, inter alia, extended the
Maturity Date of the Second Amended Note to December 15, 1995. On December 8,
1995, the Second Amended Note was partially prepaid and all collateral relating
to the Castleton Property was released by Prudential. Prior to the date hereof,
Prudential has also released all collateral relating to the Peachtree Property.
The Second Amended Note is presently secured by:
1. An Amended and Restated Open-End Mortgage and Security Agreement
(Harrisburg Mall) dated as of December 15, 1992 from EQK to Prudential (the
"Amended Harrisburg Mortgage") encumbering certain property located in Dauphin
County, Pennsylvania (the "Harrisburg Property"); the Amended Harrisburg
Mortgage was recorded on December 22, 1992 in The Recorder's Office of Dauphin
County, Pennsylvania (the "Dauphin Recorder") in Book 1886, page 298, et seq.;
31
2. An Absolute Assignment of Leases and Rents and Rental Collection
Agreement dated as of December 15, 1992 by and between EQK, Prudential and
First Union National Bank of Georgia, as Rental Collection Agent (the "Rental
Collection Agent") with respect to the Harrisburg Property (the "Harrisburg
Assignment"); the Harrisburg Assignment was recorded on December 22, 1992 by
the Dauphin Recorder in Book 1886, page 373; et seq.;
3. A Cash Management and Security Agreement by and among EQK,
Prudential and First Union National Bank of Georgia, as Escrow Agent; and
4. A Hazardous Substances Covenant and Indemnity Agreement dated as of
December 16, 1995 from EQK to and for the benefit of Prudential (the
"Environmental Agreement").
The Second Amended Note, the Amended Harrisburg Mortgage, the
Harrisburg Assignment, the Cash Management Agreement, the Environmental
Indemnity Agreement, and all financing statements and other instruments
securing the Second Amended Note are herein collectively referred to as the
"Loan Documents."
Concurrently with the execution of the Loan Documents, the parties
executed: a Warrant Agreement ("Warrant Agreement") dated December 18, 1992 by
and between EQK and Prudential pursuant to which a Warrant was granted to
Prudential to purchase Shares of beneficial interest in EQK; and a
Subordination and Intercreditor Agreement ("Intercreditor Agreement") dated as
of December 16, 1992 by and among Prudential, EQK and PNC Bank, National
Association, formerly known as Provident National Bank ("PNC") pursuant to
which Prudential, inter alia, consented to the creation of subordinate
mortgages to secure sums owed by EQK to PNC and PNC agreed that all sums owed
to PNC would remain subordinate to the Loan Documents. The Intercreditor
Agreement was recorded on December 22, 1992 by the Dauphin Recorder in Book
1886, Page 459 et seq.
Pursuant to a letter application dated December 15, 1995 (the
"Application"), EQK has requested Prudential to extend the maturity of the
Second Amended Note and to modify certain of the provisions of the Loan
Documents. The Application was countersigned by Prudential and, as so
countersigned, constitutes the "Commitment". This Agreement is intended to
amend and modify certain provisions of the Loan Documents in accordance with
the Commitment.
Capitalized terms used herein and not defined shall have their
respective meanings set forth in the Loan Documents, the Warrant Agreement and
the Intercreditor Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
32
1. INCORPORATION BY REFERENCE
Section 1.1 Incorporation by Reference. The recitals set forth in the
Background section of this Agreement, the Loan Documents, the Warrant Agreement
and the Intercreditor Agreement are hereby incorporated herein by reference as
though set forth in full in the text of this Agreement.
2. SECOND AMENDED NOTE
Section 2.1 Principal Balance. EQK and Prudential confirm and agree
that the principal balance of the Second Amended Note, including all accrued
and unpaid interest through and including December 14, 1995, is $44,125,054.68.
Section 2.2 Contract Interest Rate. Section 2(a) of the Second
Amended Note is hereby amended by adding thereto a new subsection (iv) which
reads as follows:
"(iv) From and after December 15, 1995 through and including December
14, 1996, the principal sum outstanding from time to time under this Note
shall bear interest at the rate of eight and fifty-four one-hundredths
percent (8.54%) per annum."
Section 2.3 Payment. Effective as of December 15, 1995, Sections 3(a)
through 3(c) of the Second Amended Note shall be deleted in their entirety and
the following shall be substituted in lieu thereof:
"(a) Commencing January 15, 1996 and on the fifteenth (15th) day of
each month thereafter (the "Monthly Payment Date") through and including
November 15, 1996, Maker shall pay to Payee installments of principal and
interest in the amount of $340,536.00 (the "Monthly Payment Amount") each,
which installments shall be applied first to accrued and unpaid interest on
this Note and then to the payment of principal of this Note without premium
or penalty.
"(b) Intentionally omitted.
"(c) If a portion of the Loan is prepaid, the Monthly Payment Amount
shall be reduced in proportion to the ratio of the unpaid principal balance
of the Second Amended Note immediately following such prepayment divided by
the unpaid-principal balance of the Second Amended Note immediately prior
to such prepayment."
33
Section 2.4 Maturity Date. The Maturity Date set forth in Section
3(d) of the Second Amended Note is hereby amended to read "December 15, 1996."
Section 2.5 Security. All references in Section 5 of the Second
Amended Note to the Peachtree Property and the Castleton Property and the
security held by Prudential with respect thereto are hereby deleted in their
entirety from the Second Amended Note as the Peachtree Property and the
Castleton Property have been sold and all security held with respect to the
Peachtree Property and the Castleton Property have been released by Prudential.
Section 2.6 Prepayment. Section 7(a) of the Second Amended Note is
hereby amended by adding the following at the end thereof:
"Notwithstanding the foregoing, Payee hereby waives any prepayment
premium pursuant to (i) the prepayment made by Maker on December 8,
1995 and (ii) any prepayment from and after the date hereof and prior to
the occurrence of an Event of Default pursuant to which all sums payable
under this Note and all agreements securing this Note are paid in full."
Section 2.7 Confession of Judgment. EQK, knowingly, intentionally and
voluntarily, and with the advise of separate counsel, hereby ratifies and
confirms the confessions of judgment and warrants of attorney to confess
judgment set forth in Section 10 of the Second Amended Note.
Section 2.8 Second Amended Note Ratified and Confirmed. Except as
amended and modified hereby or inconsistent with the provisions hereof, the
Second Amended Note is hereby ratified and confirmed.
3. AMENDMENTS TO AMENDED HARRISBURG MORTGAGE
Section 3.1 Senior Mortgages. EQK hereby represents and warrants to
Prudential that the Senior Mortgages referred to in the Amended Harrisburg
Mortgage have been paid in full and satisfied. Accordingly all references in
the Amended Harrisburg Mortgage to "Senior Mortgages" are hereby deleted in
their entirety.
Section 3.2 Peachtree and Castleton Properties. All references in the
Amended Harrisburg Mortgage to the Peachtree Property and the Castleton
Property and the security held by Prudential with respect thereto are hereby
deleted in their entirety.
34
Section 3.3 Confession of Judgment. EQK, knowingly, intentionally and
voluntarily, and with the advise of separate counsel, hereby ratifies and
confirms the confessions of judgment and warrants of attorney to confess
judgment set forth in Section 6.2 of the Amended Harrisburg Mortgage.
Section 3.4 Ratification of Harrisburg Mortgage. The Amended
Harrisburg Mortgage is hereby ratified and confirmed in its entirety, subject
only to the provisions of this Agreement.
4. ASSIGNMENTS
Section 4.1 Peachtree and Castleton Properties. All references in the
Harrisburg Assignment to the Peachtree Property and the Castleton Property and
the security held by Prudential with respect thereto are hereby deleted in
their entirety.
Section 4.2 Ratification of Harrisburg Assignment. The Harrisburg
Assignment is hereby ratified and confirmed in their entirety, subject only to
the provisions of this Agreement.
5. CASH MANAGEMENT AGREEMENT
Section 5.1 Peachtree and Castleton Properties. All references to the
Peachtree Property and the Castleton Property and to the security held by
Prudential with respect thereto in the Cash Management Agreement are hereby
deleted in their entirety.
Section 5.2 Asset Management Fee. Section 6.2 of the Cash Management
Agreement is hereby amended to substitute the amount "$150,000" for the amount
of "$500,000", as set forth therein.
Section 5.3 Includible Asset Management Fee. The definition of the
term "Includible Asset Management Fee" set forth in Exhibit A to the Cash
Management Agreement is hereby amended to substitute the amount "$150,000" for
the amount "$500,000", and the quarterly payments of the Includible Asset
Management Fee shall be reduced to "$37,500".
Section 5.4 Prepayment. Section 6.6(d) of the Cash Management
Agreement is hereby deleted in its entirety and the following shall be
substituted in lieu thereof:
"(d) Except for (i) payments of principal as a part of a scheduled
Monthly Payment Amount, (ii) the prepayment of principal by EQK on December
8, 1995 and (iii) a prepayment of the Second Amended Note in full prior to
the occurrence of an Event of Default hereun-
35
der, upon a principal payment to Prudential prior to the Maturity Date,
EQK shall pay to Prudential a prepayment premium calculated in
accordance with the Yield Maintenance Formula attached hereto as Exhibit
"L"."
Section 5.5 Ratification of Cash Management Agreement. The Cash
Management Agreement is hereby ratified and confirmed in its entirety, subject
only to the provisions of this Agreement.
6. WARRANT AGREEMENT
Section 6.1 Representation, Warranty and Confirmation. EQK hereby
represents, warrants and confirms to Prudential that the Warrant Agreement
remains in full force and effect, the number of Shares of EQK issuable to
Prudential upon exercise of the Warrant are 367,868 Shares; EQK currently holds
in its treasury duly authorized and previously issued Shares in such amount and
such Shares are reserved for issuance to Prudential upon exercise of the
Warrant; and the Exercise Period remains open and can only be terminated in
accordance with the express provisions of the Warrant Agreement.
Section 6.2 Ratification of Warrant Agreement. The Warrant Agreement
is hereby ratified and confirmed.
7. OTHER AGREEMENTS
Section 7.1 Ratification of Other Agreements. The provisions of the
Environmental Indemnity Agreement and the Intercreditor Agreement are hereby
ratified and confirmed.
8. NO DEFAULTS
Section 8.1 No Default. To induce Prudential to enter into this
Agreement and extent the Maturity Date of the Second Amended Note, EQK
represents and warrants to Prudential that:
(a) No Event of Default, as defined in any of the Loan Documents,
presently exists under any of the Loan Documents, the Warrant Agreement or
the Intercreditor Agreement;
(b) No event has occurred which, with the passage of time or the
giving of notice or both, would constitute an Event of Default under any
Loan Documents, the Warrant Agreement or the Intercreditor Agreement;
(c) EQK has no defenses, counterclaims or setoffs against the
Prudential Debt, as defined in the Cash Management Agreement; and
36
(d) EQK hereby ratifies and confirms its obligation to repay the
Prudential Debt on the terms and conditions set forth in the Loan
Documents, as amended hereby.
9. RELEASE AND COVENANT NOT TO SUE
Section 9.1 Release and Covenant Not to Sue. To induce Prudential to
enter into this Agreement and extend the Maturity Date of the Second Amended
Note, EQK does hereby:
(a) remise, release, acquit, satisfy and forever discharge
Prudential and all of its past, present and future officers, directors,
employees, agents, attorneys, representatives, heir, successors and
assigns, from any and all actions, claims, demands and causes of action of any
nature whatsoever, whether at law or in equity, either now accrued or hereafter
maturing, which EQK now has or hereafter can, shall or may have by reason of
any matter, cause or things from the beginning of the world to and including
the date of this Agreement with respect to any matters, transactions,
occurrences, agreements, actions and/or events arising out of, in connection
with or relating to, the loan by Prudential to EQK represented by the Second
Amended Note and its predecessor notes, including, but not limited to, the
modification and extension of the Second Amended Note pursuant to the
provisions of the Commitment and this Agreement, the calculation and payment of
interest under the Second Amended Note, the issuance of the Warrant and the
calculation of the Shares issuable thereunder and all matters relating to the
administration of the loan and/or the collateral held for the benefit of
Prudential thereunder; and
(b) covenant and agree never to institute or cause to be instituted or
continue prosecution of any suit or other form of action or proceeding of any
kind or nature whatsoever against Prudential, or any of its past, present or
future officers, directors, employees, agents, attorneys, representatives,
heirs, successors or assigns, by reason of or in connection with any of the
foregoing matters, claims or causes of action.
This release and covenant not to sue is intended to be legally
binding upon EQK and shall cover all actions of Prudential in its consideration
of the Application and this Agreement and/or the enforcement of Prudential's
rights under the Loan Documents, as amended hereby.
37
10. MISCELLANEOUS
Section 10.1 Loan Documents Remain Effective. Except as expressly
amended hereby, the Loan Documents shall remain in full force and effect and
are enforceable against EQK in accordance with their respective terms. Without
limiting the generality of the foregoing, all rights and remedies available to
Prudential under the Loan Documents shall survive the making of this Agreement
and shall continue in full force and effect, EQK shall have no right to further
extend the Maturity Date of the Second Amended Note.
Section 10.2 Integration Clause. This Agreement embodies the complete
understanding and agreement among the parties hereto with respect to the
subject matter hereof and supersedes any and all prior or contemporaneous
understandings with respect thereto, whether oral or written.
Section 10.3 Binding Effect. This Agreement shall not be modified or
amended except by a writing signed by the party against whom enforcement is
sought. This Agreement shall inure to the benefit of, and be binding upon, the
parties hereto and their respective successors and assigns.
Section 10.4 Notices. The notice address for Prudential in the Loan
Documents shall be amended as follows:
Mr. Christian T. Miles, Vice President
The Prudential Insurance Company of America
1200 "K" Street, N.W., Suite 1000
Washington, D.C. 20005
with a copy to:
F. Wayne Jarvis, Esquire
The Prudential Insurance Company of America
1200 "K" Street, N.W., Suite 1000
Washington, D.C. 20005
with a copy to:
Clifford H. Swain, Esquire
Drinker Biddle & Reath
1345 Chestnut Street, Suite 1100
Philadelphia, Pennsylvania 19107
Section 10.5 Counterpart Copies. This Agreement may be executed in
any number of counterparts which, taken together, shall constitute one and the
same instrument.
38
Section 10.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
Section 10.7 Time of the Essence. When time is mentioned herein, time
shall be the essence of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, under seal, on and as of the date first above written.
EQK REALTY INVESTORS I
By: /s/ GARY L. WERKHEISER
--------------------------------------
Name: Gary L. Werkheiser
Title: Vice President
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
By: /s/ CHRISTIAN T. MILES
--------------------------------------
Name: Christian T. Miles
Title: Vice President
39
STATE OF GEORGIA :
: SS.
COUNTY OF FULTON :
On this, the 15th day of December, 1995, before me, the undersigned
officer, personally appeared GARY L. WERKHEISER, who acknowledged himself to be
a duly elected VICE PRESIDENT of EQK REALTY INVESTORS I, a Massachusetts
business trust, and that he as such officer, being authorized to do so, executed
the foregoing instrument for the purposes therein contained by signing the name
of the business trust by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
[NOTARIAL SEAL] ---------------------------------------
Notary Public
My Commission Expires:
STATE OF :
: SS.
COUNTY OF :
On this, the day of December, 1995, before me, the undersigned
officer, personally appeared CHRISTIAN T. MILES, who acknowledged himself to be
a Vice President of THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a corporation,
and that he as such officer, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
[NOTARIAL SEAL] ----------------------------------------
Notary Public
My Commission Expires: