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EXHIBIT 10 (LLL)
THIRD AMENDMENT TO SECOND AMENDED AND
RESTATED LOAN AGREEMENT
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
(this "Amendment") is made as of this 15th day of June, 1998, 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") and by a Second Amendment to Second Amended
and Restated Loan Agreement dated as of December 15, 1996 (the "Second
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, by a certain Second Amended and
Restated Note (the "Second Amended and Restated Note") dated as of December 15,
1995 in the principal amount of $1,587,430 and by a certain Third Amended and
Restated Note (the "Third Amended and Restated Note") dated as of December 15,
1996 in the principal amount of $1,585,010.00 (collectively, the "Original
Note"). The Original Note was secured by, among, other things,
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the New Provident Mortgage, the New Provident Security Interest and the New
Provident Lease Assignment (all as defined in the Original Loan Agreement).
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 requested that the Bank extend the Maturity
Date (as defined in the Original Note) to December 15, 1998.
E. The Bank has agreed to extend the Maturity Date, 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 Fourth 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 Original Loan
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Agreement or the Original Note, as the case may be, as amended by this
Modification and the Fourth 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) Fourth
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;
(IF REQUIRED)
(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; and
(d) Mutual Estoppel and Modification Agreement with respect to
the Subordination and Intercreditor Agreement among the Bank,
Prudential and Borrower (the "Intercreditor Agreement").
5. As a condition to the Bank's execution of this Agreement,
Borrower hereby agrees to pay to the Bank on or before the date hereof, the
outstanding deferred Bank fee of $88,125.00. In addition, Borrower hereby
agrees to pay to the Bank an extension fee in the amount of S7,908, which fee
shall be paid 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. Any outstanding fee shall be due and payable in full
on the earlier of the Maturity Date or repayment or the entire Loan.
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;
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(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.
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
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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.
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: /s/ Don Henry
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Title: VP
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PNC BANK, NATIONAL
ASSOCIATION
By: /s/ Andrew D. Coler
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Name: Andrew Coler
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Title: Vice President
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EXHIBIT A
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EXHIBIT B