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EXHIBIT 10(QQQ)
FOURTH AMENDMENT TO SECOND AMENDED AND
RESTATED LOAN AGREEMENT
THIS FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
(this "Amendment") is made as of this 15th day of December, 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"), by a Second Amendment to Second Amended and
Restated Loan Agreement dated as of December 15, 1996 (the "Second Amendment")
and by a Third Amendment to Second Amended and Restated Loan Agreement dated as
of June 15, 1998 (the "Third 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, 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 and by a certain
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Fourth Amended and Restated Note (the "Fourth Amended and Restated Note") dated
as of June 15, 1998 in the original principal amount of $1,581,769
(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).
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) from December 15, 1998 to the earlier of
(i) June 15, 1999; (ii) the termination or dissolution of the Borrower; or
(iii) the sale or refinancing of the Harrisburg Mall (as defined in the
Original Note).
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 term 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:
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"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 Fifth Amended and Restated Note dated
as of December 15, 1998 (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 Agreement or the Original Note, as the case may
be, as amended by this Modification and the Fifth 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)
Fifth 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; 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 $4,408.54. In addition the Borrower hereby
agrees to pay to the Bank an extension fee in the amount of $8,000.00, which
fee shall be paid at closing; provided, however that if the Borrower fails to
pay the $8,000.00 extension fee on or before the date hereof, such fee shall be
increased to $10,000.00 and shall be paid in monthly payments at same time as
principal and interest payments until paid in full in an amount equal to the
positive difference, if any, between the Cap Amount (as defined
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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 of 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;
(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 Fifth
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
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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 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 FIFTH AMENDED AND RESTATED 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.
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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: V.P.
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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