THIRD AMENDMENT TO THIRD AMENDED AND RESTATED LOAN AGREEMENT AND OTHER LOAN DOCUMENTS
EXHIBIT 10.4
THIRD AMENDMENT TO THIRD AMENDED
AND RESTATED LOAN AGREEMENT AND OTHER LOAN DOCUMENTS
This THIRD AMENDMENT TO THIRD AMENDED AND RESTATED LOAN AGREEMENT AND OTHER LOAN DOCUMENTS (this “Third Amendment”) dated as of the 3rd day of March, 2021, effective as of February 28, 2021, among (1) ONE LIBERTY PROPERTIES, INC., a Maryland corporation, having its principal place of business at 00 Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxx Xxxx, Xxx Xxxx 00000 (“Borrower”), (2) VNB NEW YORK, LLC, a New York limited liability company (as successor by merger to VNB New York Corp., as assignee of Valley National Bank, Merchants Bank Division), as a lender, having an office at 0 Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“VNB”), (3) BANK LEUMI USA, as a lender, having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Leumi”), (4) MANUFACTURERS AND TRADERS TRUST COMPANY, as a lender, having an office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“M&T”), (5) PEOPLE’S UNITED BANK, NATIONAL ASSOCIATION, as a lender, having an office at 000 Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 (“People’s Bank”), and (6) MANUFACTURERS AND TRADERS TRUST COMPANY, as administrative agent (together with its successors and assigns, “Administrative Agent”) on behalf of VNB, Leumi, M&T, People’s Bank and the other Lenders (as defined in the Loan Agreement (as hereinafter defined)). Capitalized terms not otherwise defined in this Third Amendment shall have the meanings ascribed to them in the Loan Agreement.
RECITALS
WHEREAS, Borrower, Administrative Agent and Lenders have heretofore entered into that certain Third Amended and Restated Loan Agreement dated as of November 9, 2016, as amended by that certain First Amendment to Third Amended and Restated Loan Agreement and Other Loan Documents dated as of July 1, 2019, and that certain Second Amendment to Third Amended and Restated Loan Agreement and Other Loan Documents dated as of July 8, 2020 (as amended from time to time, collectively, the “Loan Agreement”); and
WHEREAS, Borrower, Administrative Agent and Lenders desire to amend and modify the Loan Agreement by revising certain of the covenants contained in the Loan Agreement all upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, it is agreed as follows:
“No Lender shall advance, and Borrower shall not request, Renovation Expense Loans and Operating Expense Loans which, in the aggregate, exceed the lesser of (x) $30,000,000 or (y) 30% of the Borrowing Base; provided, however, that in no event shall (A) Operating Expense Loans exceed (1) $20,000,000 through June 30, 2022 and (2) $10,000,000 from
and after July 1, 2022, and (B) Renovation Expense Loans exceed (1) $10,000,000 through June 30, 2022 and (2) $20,000,000 from and after July 1, 2022, and Borrower shall immediately prepay such Operating Expense Loans and/or Renovation Expense Loans to the extent of any such excess and there shall be no further advances until such excess is repaid.”
“SECTION 2.10 Use of Proceeds. The proceeds of the Revolving Credit Loans shall be used for (i) the acquisition of a Property; (ii) the repayment (in whole or in part) of existing mortgage debt on a Property; and (iii) Renovation Expense Loans and Operating Expense Loans in the aggregate not to exceed the lesser of (x) $30,000,000 or (y) 30% of the Borrowing Base; provided, however, that in no event shall (A) Operating Expense Loans exceed (1) $20,000,000 through June 30, 2022 and (2) $10,000,000 from and after July 1, 2022, and (B) Renovation Expense Loans exceed (1) $10,000,000 through June 30, 2022 and (2) $20,000,000 from and after July 1, 2022. No part of the proceeds of any Loan may be used for any purpose that directly or indirectly violates or is inconsistent with, the provisions of Regulations T, U or X. Borrower shall not use, and shall take reasonable steps to ensure that none of its Subsidiaries and its or their respective directors, officers, employees and agents shall use, the proceeds of any Revolving Credit Loans (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, or (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country.”
| (a) | a fully-executed Third Amendment; |
| (b) | a fully executed Ratification and Confirmation of Guaranty in the form attached as Exhibit A (the “Guaranty Ratification”); |
| (c) | payment of all reasonable, out-of-pocket costs and expenses incurred by Administrative Agent in connection with this Third Amendment; |
| (d) | payment to Administrative Agent’s and each Lender’s outside counsel for reasonable fees and expenses in connection with the preparation, negotiation and execution of this Third Amendment; |
| (e) | a satisfactory attorney opinion letter from Xxxxxxx X. Xxxxxxxx, Senior Vice President and Legal Counsel of Borrower, (i) stating that Borrower is duly formed, fully qualified, validly existing and in good standing under the laws of the State of Maryland and the State of New York and is authorized and empowered, by signature of the undersigned, to enter into this Third Amendment and perform all of the terms, provisions, covenants and conditions hereof, and that in doing so, Borrower shall not be in violation of Borrower’s by-laws or any other agreement to which Borrower is a party, (ii) stating that |
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| each Guarantor is duly formed, fully qualified, validly existing and in good standing under the laws of their respective state of formation and each Guarantor is authorized and empowered, by signature of the undersigned, to enter into the Guaranty Ratification and perform all of the terms, provisions, covenants and conditions thereof, and that in doing so, each Guarantor shall not be in violation of such Guarantor’s formation or organizational documents or any other agreement to which such Guarantor is a party, (iii) regarding the validity and enforceability of this Third Amendment and the documents to be executed in connection herewith, and (iv) stating that there have been no changes to (x) Borrower’s certificate of incorporation or by-laws, other than as described in Borrower’s Proxy Statement dated April 22, 2020 and Form 8-K dated July 7, 2020 or (y) any Guarantor’s certificate of incorporation, formation or limited partnership, as applicable, or by-laws, operating agreement or partnership agreement, as applicable, in each instance, since the versions thereof delivered to Administrative Agent on November 9, 2016; and |
| (f) | such other agreements and instruments as Administrative Agent and Lenders reasonably deem necessary to carry out the terms and provisions of this Third Amendment. |
| (a) | Except as set forth on replacement schedules attached hereto as Exhibit B, any and all of the representations, warranties and schedules (as such schedules may have been previously supplemented and/or modified from time to time in accordance with the Loan Agreement) contained in the Loan Agreement or any of the other Loan Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date; |
| (b) | The execution of this Third Amendment, the delivery by Borrower to Administrative Agent of all monies, items and documents provided for herein, Borrower’s performance hereof and the transactions |
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| contemplated hereby have been duly authorized by the requisite action on the part of Borrower. This Third Amendment constitutes the valid and binding obligation of Borrower and is enforceable against Borrower in accordance with its terms, provisions, covenants and conditions, except as enforcement thereof may be limited by applicable laws affecting the enforcement of creditors’ rights generally; |
| (c) | Except as may previously have been expressly disclosed in writing by Borrower to Administrative Agent or the Lenders, no event has occurred and is continuing which constitutes an Event of Default under the Loan Agreement or under any of the other Loan Documents or which upon the giving of notice or the lapse of time or both would constitute an Event of Default; |
| (d) | As of the date hereof, Borrower is legally, validly and enforceably indebted to Lenders in the aggregate principal amount of $15,450,000, all of which amounts are due without offset, claim, defense, counterclaim or right of recoupment; and |
| (e) | Borrower hereby knowingly, voluntarily, intentionally, unconditionally and irrevocably waives, releases, and forever discharges Administrative Agent, Lenders, and Administrative Agent’s and Lenders’ parent, affiliates, subsidiaries (such persons or parties being hereinafter collectively referred to as “Lender Entities”) and Lender Entities’ agents, officers, directors, shareholders, partners, members and employees (Administrative Agent, Lenders and Lender Entities and such other persons or parties being herein collectively referred to as “Lender Parties”), from and against any and all rights, claims, counterclaims, actions or causes of action against Administrative Agent, Lenders and/or Lender Parties, arising out of Administrative Agent’s, Lenders’ and/or Lender Parties’ actions or inactions in connection with the Loan prior to the execution and delivery of this Third Amendment, or any security interest, lien or collateral then given/granted to Administrative Agent, Lenders and/or Lender Parties in connection therewith, as well as, to the extent arising out of such actions or inactions, any and all rights of set-off, defenses, claims, actions, causes of action and any other bar to the enforcement of this Third Amendment and/or the Loan Documents. |
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IN WITNESS WHEREOF, the undersigned have caused this Third Amendment to be duly executed and delivered as of the date first above written.
BORROWER:
ONE LIBERTY PROPERTIES, INC.
By: _____________________________
Xxxx X. Xxxxx
Senior Vice President
[SIGNATURES CONTINUE ON NEXT PAGE]
LENDER:
VNB NEW YORK, LLC
By: _____________________________
Xxxxxx Xxxxx
First Vice President
[SIGNATURES CONTINUE ON NEXT PAGE]
LENDER:
BANK LEUMI USA
By: _____________________________
Xxxxxxx Xxxxxx
Senior Associate Relationship Manager
By: _____________________________
Xxxxx Xxxx
Senior Vice President
[SIGNATURES CONTINUE ON NEXT PAGE]
LENDER:
PEOPLE’S UNITED BANK, NATIONAL ASSOCIATION
By:_____________________________
Name:
Title:
[SIGNATURES CONTINUE AND END ON NEXT PAGE]
LENDER:
MANUFACTURERS AND TRADERS
TRUST COMPANY
By:_____________________________
Name:
Title:
ADMINISTRATIVE AGENT:
MANUFACTURERS AND TRADERS
TRUST COMPANY
By:_____________________________
Name:
Title:
EXHIBIT A
Form of Ratification and Confirmation of Guaranty
EXHIBIT B
Replacement Schedules
SCHEDULE 1.01
GUARANTORS
SCHEDULE 4.01(a)
LIST OF SUBSIDIARIES OF ONE LIBERTY PROPERTIES, INC.
