THIRD AMENDMENT TO REVOLVING CREDIT LOAN AGREEMENT
THIS THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT ("Third
Amendment") is made the 3rd day of October, 1996 by and among
XXXX CENTERS LIMITED PARTNERSHIP, a Delaware limited partnership
("MCLP"), XXXX 25TH STREET, L.P., a Pennsylvania limited
partnership ("Xxxx 25"), XXXX CENTERS TRUST, a Maryland business
trust ("MCT") and MELLON BANK, N.A., a national banking
association ("Lender"). MCLP and Xxxx 25 are sometimes
hereinafter referred to individually as a "Borrower" and
collectively as the "Borrowers".
BACKGROUND
A. Borrowers, MCT and Lender are parties to a Revolving
Credit Loan Agreement dated October 5, 1994, amended by a First
Amendment to Revolving Credit Loan Agreement dated November 15,
1995 (the "First Amendment") and a Second amendment to Revolving
Credit Loan Agreement dated February 29, 1996 (the "Second
Amendment"). The Revolving Credit Loan Agreement, as amended by
the First Amendment and Second Amendment, shall hereinafter be
referred to as the "Loan Agreement". The Loan Agreement, as
amended, sets forth the terms and conditions on which Lender
agreed to provide a revolving secured line of credit facility
(the "Revolving Credit") to Borrowers in the maximum aggregate
principal amount of Twenty Two Million Five Hundred Thousand
Dollars ($22,500,000). Capitalized terms used in this Agreement
without definition shall have the same meanings ascribed to those
terms in the Loan Agreement.
B. The Revolving Credit is secured by, among other things,
the Collateral Properties, which include Auburn Plaza, located in
Auburn, Androscoggin County, Maine ("Auburn Plaza").
C. Borrowers and MCT have requested Lender to agree to (i)
reduce the aggregate principal amount of the Revolving Credit,
(ii) convert the Revolving Credit to a term loan, (iii) release
certain Collateral Properties more particularly described on the
attached Exhibit "A" (the "Release Properties") and (iv)) grant
to Lender as additional collateral assignments of certain
payments anticipated by Borrowers, and Lender has agreed to do so
on the terms and conditions hereinafter set forth.
TERMS AND CONDITIONS
NOW THEREFORE, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Definitions. Capitalized terms not otherwise defined
in this Agreement shall have the meanings ascribed to them in the
Loan Agreement.
2. Reduction in Commitment; Commitment Termination Date;
Principal Repayment. (a) Upon the execution of this Third
Amendment, Borrowers shall pay to Lender the sum of Sixteen
Million Six Hundred Eighty Six Thousand Three Hundred Seventeen
and 44/100 Dollars ($16,686,317.44) (the "Loan Paydown") of which
Sixteen Million Five Hundred Ninety Six Thousand Three Hundred
Seventeen and 44/00 Dollars ($16,596,317.44) shall be applied to
the outstanding indebtedness under the Loan Agreement and Ninety
Thousand Dollars ($90,000) shall be maintained by Lender as the
Cash Deposit (as defined in Section 6 below). Following the
payment of the Loan Paydown, the outstanding principal balance
outstanding under the Loan Agreement shall be Three Million Eight
Hundred Twelve Thousand Dollars ($3,812,000). Borrowers
acknowledge and agree that Lender is not obligated to advance any
additional Loans under the Loan Agreement.
(b) The Commitment Termination Date shall be the date
that is eighteen (18) months from the date of this Third
Amendment.
(c) In addition to payment of interest required by
Section 2.6 of the Loan Agreement, Borrowers shall pay to the
Lender on the first day of each month during the balance of the
term of the Revolving Credit an amount equal to the monthly
payment as set forth on the attached Exhibit "B" for such month
(the "Minimum Payment"), which Minimum Payment shall be applied
against the outstanding principal balance of the Revolving
Credit.
(d) In addition to the monthly Minimum Payments,
within sixty (60) days after the last day of each calendar
quarter Borrowers shall make additional payments on account of
the principal balance of the Revolving Credit in the amount, if
any, by which the Operating Cash Flow received with respect to
Auburn Plaza with respect to the calendar quarter then ended
exceeds the Minimum Payments made with respect to such calendar
quarter.
(e) On the Commitment Termination Date, Borrowers
shall pay in full (A) the aggregate principal amount outstanding
of the Revolving Credit, and (B) all other amounts then
outstanding under the Loan Agreement, the Note or any other Loan
Documents.
3. Release Properties; Release of Xxxx 25. Upon the
receipt of the Loan Paydown, (i) Xxxx 25 shall be released from
all obligations and liabilities under the Loan Documents, and
(ii) Lender shall promptly deliver the documents necessary in
accordance with the Loan Documents to evidence the termination of
lender's security interests with respect to the Release
Properties. The release of Xxxx 25 shall in now way affect the
liability of any other parties to the Loan Documents and such
parties shall remain fully liable for their respective
obligations under the Loan Documents.
4. Financial Reporting. Borrowers shall deliver to Lender
within fifteen (15) days after the end of each month an income
statement and rent roll for Auburn Plaza for such month,
certified as true and correct by the Chief Financial Officer of
MCT.
5. Financial Covenants.
(i) Leverage Ratio. The ratio of total combined
Indebtedness of MCT to Total Market Capitalization of MCT shall
not at any time exceed .70 to 1.
(ii) Liquidity. The unrestricted Cash of MCT shall not
at any time be less than $500,000.
(iii)Loan to Value. Borrowers shall not permit the
Loan to Appraised Value Ratio be greater than .50 to 1.
(iv) Auburn Plaza Operating Cash Flow. The Operating
Cash Flow for Auburn Plaza in any calendar year shall be not less
than $540,000.
6. Cash Collateral. Lender has issued to Borrower for the
benefit of the Commonwealth of Pennsylvania Engineering District
40 its irrevocable Standby Letter of Credit No. S836531 dated
October 24, 1994 in the amount of $648,150 (the "Letter of
Credit"). As of the date hereof, the amount available to be
drawn under the Letter of Credit equals Ninety Thousand Dollars
($90,000). Upon the execution of this Third Amendment, Borrower
shall deposit with Lender the sum of Ninety Thousand Dollars
($90,000)(the "Cash Deposit"), to be held in an interest-bearing
money market account maintained by Lender. The Cash Deposit,
until applied or released as provided in Section 7.5 of the Loan
Agreement, shall constitute additional collateral for the Letter
of Credit.
7. Lease Termination Fee. As of the date hereof, Rich's
Department Stores, Inc. ("Rich's) has vacated its premises in
Auburn Plaza (the "Rich's Premises"). Pursuant to the terms of
that certain Lease Termination Agreement dated January 30, 1996
between Rich's and MCLP, Rich's agreed to pay to MCLP the sum of
Four Hundred Thirty-Two Thousand Dollars ($432,000) (the "Rich's
Termination Payment"). MCLP shall pay to Lender the entire
amount of the Lease Termination Payment, or such lesser portion
thereof as MCLP may receive from time to time, immediately upon
MCLP's receipt thereof. All amounts received by Lender in
connection with the Lease Termination Payment shall be applied to
the principal and interest due under the Revolving Credit. As
additional security for MCLP's obligations hereunder, MCLP hereby
conveys, transfers, assigns, and sets over unto Lender all of
MCLP's right, title, interest and privilege in and to the
Rich's's Termination Payment.
8. Excess Proceeds. As of the date hereof, MCLP is
indebted to the Lender pursuant to the terms of that certain Four
Million Seven Hundred Twenty Five Thousand construction loan (the
"Pittston Plaza Construction Loan") for the construction of
certain improvements to the Pittston Plaza shopping center,
Pittston, Pennsylvania ("Pittston Plaza"). MCLP has received a
commitment for permanent financing for Pittston Plaza (the
"Pittston Plaza Financing"). MCLP shall pay to Lender all excess
proceeds (as defined below) received from the Pittston Plaza
Financing. As additional security for MCLP's obligations
hereunder, MCLP hereby conveys, transfers, assigns and sets over
unto lender all of MCLP's right, title, interest and privilege in
and to all excess proceeds received from the Pittston Plaza
Financing as security for MCLP's obligations hereunder. For
purposes hereof, "excess proceeds" shall mean the difference
between (i) the outstanding principal, interest and all sums due
in connection with the Pittston Plaza Construction Loan and (ii)
the principal amount of the Pittston Plaza Financing, less
customary closing costs, including loan commitment fees, title
insurance premiums, and legal fees actually incurred and paid by
MCLP.
9. Reaffirmation of Guaranty. MCT acknowledges that it is
unconditionally liable and legally and validly indebted to Lender
in accordance with the terms of the Guaranty, and such
indebtedness is not subject to any defense, counterclaim or
offset. MCT consents to the delivery of this Third Amendment and
the modifications made herein, and affirms that the Guaranty is
in full force and effect and includes, without limitation, the
indebtedness, liabilities and obligations arising under or in any
way connected with the Loan Agreement and this Third Amendment,
whether now existing or hereafter arising including, without
limitation, principal, interest, costs and expenses of
collection.
10. Representations and Warranties. To induce Lender to
amend the Loan Agreement as provided herein, Borrowers and MCT
represent and warrant to Lender as follows:
(a) Borrowers and MCT have full power, authority and
legal right to execute and deliver this Amendment, and this
Amendment constitutes the valid and binding obligation of
Borrowers and MCT, enforceable against them in accordance with
its terms.
(b) Neither MCT nor any Borrower has any charge,
claim, demand, plea or setoff upon, for or against the Loan
Agreement or any of the Loan Documents. Upon application of the
Loan Paydown, the outstanding principal balance of the Revolving
Credit will be Three Million Eight Hundred Twelve Thousand
Dollars ($3,812,000), and such sum remains due and payable in
accordance with the terms and provisions of the Loan Agreement
and other Loan Documents, as modified by this Third Amendment.
(c) No Event of Default exists under the Loan
Agreement or any other Loan Document and there is no Unmatured
Event of Default under the Loan Agreement or any other Loan
Document.
(d) The execution, delivery and performance of this
Amendment has been duly authorized by all requisite partnership
action on the part of each Borrower and MCT, and will not violate
the partnership documents of any Borrower or MCT or any provision
of any law or any order of any tribunal, and will not conflict
with, result in a breach of or constitute a default under any
mortgage, security agreement, loan or other credit agreement, or
any other agreement or instrument to which any Borrower or MCT is
a party, or result in the imposition of any lien upon the assets
of any Borrower of MCT except as contemplated by this Amendment.
11. Effectiveness of Loan Documents. Except as
specifically amended by this Third Amendment, the Loan Agreement
and the other Loan Documents remain unmodified and in full force
and effect. References in any of the Loan Documents to the Loan
Agreement shall hereafter be deemed to mean and refer to the Loan
Agreement as amended by this Amendment.
12. Miscellaneous.
(a) This Third Amendment constitutes the entire
understanding among Borrowers, MCT and Lender concerning the
modification of the Loan Agreement. All prior and
contemporaneous negotiations and understandings are merged in
this Third Amendment.
(b) The captions preceding the sections of this Third
Amendment are for convenience of reference only. They are not a
part of this Third Amendment and shall not be considered in
construing its meaning or effect.
(c) Borrowers and MCT shall pay the attorneys' fees
and costs incurred by Lender in connection with the modification
of the Loan Agreement evidenced by this Third Amendment.
(d) This Third Amendment may be executed in any number
of counterparts, each of which shall be an original, and such
counterparts together shall constitute one and the same
instrument. The parties hereto agree that a facsimile
transmission of an executed counterpart of this Third Amendment
shall have the same binding effect upon the signatory as an
executed and delivered original hereof. The parties hereto
further agree, for confirmatory purposes only, to exchange copies
of executed counterpart originals promptly after the aforesaid
facsimile transmission so that each party may have one fully
executed original hereof.
(e) This Third Amendment shall be construed in
accordance with the laws of the Commonwealth of Pennsylvania and
shall be binding upon the parties hereto and their respective
successors and assigns.
IN WITNESS WHEREOF the parties hereto have caused this Third
Amendment to be duly executed the day and year first above
written.
Borrowers:
XXXX CENTERS LIMITED PARTNERSHIP,
a Delaware limited partnership
BY: XXXX CENTERS TRUST, a Maryland
business trust, its general partner
BY: /s/ Xxxxxx Xxxx
Senior Vice President & CFO
XXXX 25TH STREET, L.P.,
a Pennsylvania limited partnership
BY: XXXX 00XX XXXXXX REALTY CORP.,
a Pennsylvania corporation
its general partner
BY: /s/ Xxxxxx Xxxx
Senior Vice President & CFO
XXXX CENTERS TRUST,
a Maryland business trust
BY: /s/ Xxxxxx Xxxx
Senior Vice President & CFO
Lender:
MELLON BANK, N.A.,
a national banking association
BY: /s/ D. Xxxxxxx Xxxxxxx
Title: Vice President
EXHIBIT "A"
Release Properties
1. Birney Plaza, Moosic Borough, Lackawana County,
Pennsylvania
2. Circle Plaza, Shamokin Dam Borough, Xxxxxx County,
Pennsylvania
3. Kingston Plaza, Kingston Borough, Luzerne County,
Pennsylvania
4. Xxxxxxxxxxxxx Xxxxx, Xxxx xx Xxxxxxxxx, Xxxxxx Xxxxxx,
Xxxxxxxxxxxx
5. 00xx Xxxxxx Xxxxx, Xxxxxx Xxxxxxxx, Xxxxxxxxxxx Xxxxxx,
Xxxxxxxxxxxx
