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EXHIBIT 3.10.CCC
SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED LOAN
AGREEMENT (this "Amendment") is made as of this 15th day of December, 1996, by
and between EQK REALTY INVESTORS I, a Massachusetts business trust (the
"Borrower"), and PNC BANK, NATIONAL ASSOCIATION, a national banking
association, (successor by merger to Provident National Bank) (the "Bank").
BACKGROUND
A. Reference is made to the Second Amended and Restated Loan
Agreement dated as of December 16, 1992, by and between the Borrower and the
Bank pursuant to which the Bank extended to Borrower a term loan in the amount
of $3,525,000 (the "Loan"), which loan agreement was amended by a First
Amendment to Second Amended and Restated Loan Agreement dated as of December
15, 1995 (the "First Amendment") (collectively the "Original Loan Agreement").
B. The Loan was evidenced by Borrower's Amended and Restated Note
dated December 16, 1992 in the principal amount of $3,525,000, as amended by a
Note Modification Agreement dated May 17, 1993 and by a certain Second Amended
and Restated Note dated as of December 15, 1995 (the "Second Amended and
Restated Note") (collectively, the "Original Note"). The Original Note was
secured by, among other things, the New Provident Mortgage, the New Provident
Security Interest and the New Provident Lease Assignment (all as defined in the
Original Loan Agreement).
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C. This Amendment, the Original Loan Agreement, the Note (as
hereinafter defined in Section 2 hereof), the New Provident Mortgage, the New
Provident Lease Assignment, the Intercreditor Agreement (all as defined in the
Original Loan Agreement) and all other documents and instruments evidencing
and/or securing the Loan are sometimes hereinafter collectively referred to as
the "Loan Documents."
D. The Borrower has paid down the principal balance of the Loan
from $1,587,430 to $1,585,010 and has requested that the Bank extend the
Maturity Date (as defined in the Original Note) to June 15, 1998, and to make
certain other amendments to the Loan Documents.
E. The Bank has agreed to extend the Maturity Date and to make
such other subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Capitalized terms not otherwise defined herein shall
have the meaning given to such terms in the Original Loan Agreement.
2. The Original Loan Agreement is hereby amended by
deleting in its entirety Section 3(b) of the First Amendment and substituting
the following:
"3(b) Terms of Payment: Maturity: Subject to the terms of
the Intercreditor Agreement, the Loan shall be payable in accordance
with the Original Note as amended by the Third Amended and Restated Note dated
the date hereof (collectively, the "Note")."
3. From and after the date hereof, all references to the
"Loan Agreement" or the "Note" contained herein or in any of the other Loan
Documents shall be to the
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Original Loan Agreement or the Original Note, as the case may be, as amended by
this Modification and the Third Amended and Restated Note, respectively.
4. Execution of this Modification shall be conditioned on the
Bank's receipt of the following, all in form satisfactory to the Bank:
(a) the execution and delivery by Borrower of the (i)
Third Amended and Restated Note in the form of
Exhibit A attached hereto and (ii) the Disclosure For
Confession of Judgment in the form of Exhibit B
attached hereto;
(b) certified copy of the authorizing resolutions of
Borrower;
(c) certificate from Borrower as to the incumbency of its
officers and that the Declaration of Trust, By-Laws
and other organizational documents have not been
amended since December 15, 1992 and remain in full
force and effect;
(d) endorsement to Commonwealth Land Title Mortgage
Insurance Policy No. D-049935-CP reducing the insured
amount to $1,585,010 and insuring that the Harrisburg
Mortgage (as defined in the Note) creates a second
mortgage lien against the property described therein
subject only the matters shown on the existing title
policy, but not to any other liens or mortgages
except the lien in the amount of $43,794,149.14 in
favor of The Prudential Insurance Company of America
("Prudential");
(e) legal opinion of counsel for Borrower as to
authorization, execution and delivery of the
documents; and
(f) Mutual Estoppel and Modification Agreement with
respect to Subordination and Intercreditor Agreement
among the Bank, Prudential and Borrower (the
"Intercreditor Agreement").
5. On the date hereof, Borrower shall pay or reimburse Bank for
the fees and disbursements of Bank's counsel, Ballard Spahr Andrews &
Ingersoll. Borrower hereby agrees to pay to the Bank an extension fee in the
amount of Twenty-three Thousand Seven
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Hundred Seventy Five Dollars ($23,775,00), which shall be payable as follows:
(a) $15,850 within five business days of the Bank's billing therefor; and (b)
$7,925 in monthly payments until paid in full in an amount equal to the
positive difference, if any, between the Cap Amount (as defined in the
Intercreditor Agreement) and the amount of interest payable monthly under the
Note at the Interest Rate.
6. The Borrower hereby certifies that, as of the date hereof:
(a) each of the representations and warranties contained
in the Loan Agreement and the other Loan Documents,
as modified by this Modification, are true and
correct;
(b) the Borrower is in compliance with all of the terms,
covenants and conditions contained in the Loan
Agreement and the other Loan Documents, as modified
by this Modification, including, without limitation,
all of the financial covenants; and
(c) there exists no Default or Event of Default under the
Loan Agreement or any of the other Loan Documents.
7. All of the terms, conditions, provisions and covenants in the
Original Loan Agreement, the Original Note or any of the other Loan Documents
executed in connection with any of the foregoing shall remain unaltered and in
full force and effect except as modified by this Modification and the Third
Amended and Restated Note.
8. This Modification shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
9. Each and every one of the terms and provisions of this
Modification shall be binding upon and shall inure to the benefit of the
Borrower, the Bank and their respective successors and assigns.
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10. This Modification may be executed in one or more counterparts,
each of which shall be deemed to be an original as against any party whose
signature appears thereon, and all of which shall constitute but one and the
same instrument.
11. Borrower agrees that it has no defenses or set-offs against
Bank, its officers, directors, employees, agents or attorneys with respect to
the Note, the Loan Agreement, the New Provident Mortgage or any of the other
Loan Documents, and that the Note, the Loan Agreement, the New Provident
Mortgage, and the other Loan Documents are in full force and effect and shall
remain in full force and effect unless and until modified or amended in writing
in accordance with their respective terms. Borrower hereby ratifies and
confirms its obligations under the Note, the Loan Agreement, the New Provident
Mortgage, and the other Loan Documents, and the execution and delivery of this
Modification does not in any way diminish or invalidate any of Borrower's
obligations under the Note, the Loan Agreement and the other Loan Documents.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BORROWER RATIFIES AND
CONFIRMS THE WARRANT OF ATTORNEY GIVEN IN THE NOTE.
12. This Modification does not and shall not be deemed to
constitute a waiver by Bank of any Event of Default, or of any event which
with the passage of time or the giving of notice or both would constitute an
Event of Default, under the Note, the Loan Agreement, the New Provident
Mortgage or any of the other Loan Documents, nor does it obligate Bank to agree
to any further modifications of the terms of the Note, the Loan Agreement or
any of the other Loan Documents, or constitute a waiver of any of Bank's other
rights or remedies, which may be effected only (if at all) by an instrument in
writing.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Modification
to be duly executed by their respective authorized officers as of the day and
year first above written.
EQK REALTY INVESTORS I, a
Massachusetts business trust
By: /s/ Don Henry
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Name: Don Henry
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Title: VP
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PNC BANK, NATIONAL
ASSOCIATION
By: /s/ Andrew Coler
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Name: Andrew Coler
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Title: Vice President
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EXHIBIT A