FOURTH AMENDMENT TO LOAN AGREEMENT
This FOURTH AMENDMENT TO LOAN AGREEMENT (hereinafter, the "Fourth
Amendment") is dated as of December 16, 2005, by and among BANK OF AMERICA,
N.A., a national banking association having an address at IL1-231-10-35, 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, as Administrative Agent
(hereinafter, the "Administrative Agent"), BANK OF AMERICA, N.A., COMMERZBANK AG
NEW YORK BRANCH, a lending institution having an address at 2 World Financial
Center, New York, New York 10281, PB CAPITAL CORPORATION, a lending institution
having an address at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
MANUFACTURERS AND TRADERS TRUST COMPANY, a lending institution having an address
at Xxx X & X Xxxxx, Xxxxxxx, Xxx Xxxx 00000, SOVEREIGN BANK, a lending
institution having an address at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
XXXXXXX XXXXX BANK, FSB, a lending institution having an address at 000 Xxxxxxxx
Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000, CITIZENS BANK OF PENNSYLVANIA, a lending
institution having an address at 0000 Xxxxxxxx Xxxx 194-0245, Xxxxx 000,
Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx 00000, KEYBANK, NATIONAL ASSOCIATION, a lending
institution having an address at 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx, 00000, LASALLE BANK NATIONAL ASSOCIATION, a lending institution
having an address at 000 X. XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000, and the
other lending institutions which are or may hereafter become parties to the Loan
Agreement (as defined below), as the Lenders (collectively, the "Lenders"), and
CEDAR SHOPPING CENTERS PARTNERSHIP, L.P., a Delaware limited partnership having
an address at 00 Xxxxx Xxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000, as the
Borrower (hereinafter, the "Borrower"). All capitalized terms not otherwise
defined herein shall have the same meaning ascribed to such terms and set forth
under the Loan Agreement.
BACKGROUND
WHEREAS, Bank of America, N.A., as Administrative Agent, Bank of
America, N.A., Commerzbank AG New York Branch, PB Capital Corporation,
Manufacturers and Traders Trust Company, Sovereign Bank, Xxxxxxx Xxxxx Bank, FSB
and Citizens Bank of Pennsylvania, as the lenders (hereinafter, the "Original
Lenders"), and Borrower entered into a certain loan arrangement (hereinafter,
the "Loan Arrangement") evidenced by, among other documents, instruments and
agreements, that certain Loan Agreement dated as of January 30, 2004, as amended
by that certain First Amendment to Loan Agreement dated as of June 16, 2004,
that certain Second Amendment to Loan Agreement dated as of November 2, 2004,
and that certain Third Amendment to Loan Agreement dated as of January 28, 2005
(hereinafter, collectively, the "Loan Agreement"), and those certain promissory
notes dated as of January 28, 2005 executed by the Borrower in favor of the
Original Lenders in the original aggregate principal amount of $140,000,000.00
(hereinafter, individually and collectively, the "Note");
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WHEREAS, pursuant to the terms and conditions of Section 2.1.1(iii) of
the Loan Agreement, the Borrower has the right, on any one (1) or more occasions
prior to the Maturity Date, to elect to increase the Established Loan Amount;
WHEREAS, the Borrower has elected, and the Administrative Agent and the
Lenders have agreed, to increase the Established Loan Amount in accordance with
Section 2.1.1(iii) of the Loan Agreement; and
WHEREAS, the Administrative Agent, Lenders and Borrower have further
agreed to amend the Loan Agreement as more particularly set forth herein.
Accordingly, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed by and among
the Administrative Agent, Lenders and Borrower as follows:
1. Exhibit A to the Loan Agreement is hereby amended by inserting
the following definitions in their corresponding alphabetical
order:
"Cash Collateral" has the meaning specified in Section 2.7.7
"Cash Collateralize" has the meaning specified in Section
2.7.7.
"Existing Letter of Credit" means that certain letter of
credit #68008359 in the face amount of $94,168.00 issued by
Bank of America, N.A. which shall be deemed to have been
issued under the terms of this Loan Agreement.
"ISP" means, with respect to any Letter of Credit, the
"International Standby Practices 1998" published by the
Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit,
the Letter of Credit Application, and any other document,
agreement and instrument entered into by the L/C Issuer and
the Borrower (or any Borrower Subsidiary) or in favor the L/C
Issuer and relating to any such Letter of Credit.
"L/C Advance" means, with respect to each Lender, such
Lender's funding of its participation in any L/C Borrowing in
accordance with its Commitment Percentage.
"L/C Borrowing" means an extension of credit resulting from a
drawing under any Letter of Credit which has not been
reimbursed on the date when made or refinanced as a Loan
Advance.
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"L/C Credit Extension" means, with respect to any Letter of
Credit, the issuance thereof or extension of the expiry date
thereof, or the increase of the amount thereof.
"L/C Issuer" means Bank of America, N.A. in its capacity as
issuer of Letters of Credit hereunder, or any successor issuer
of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the
aggregate amount available to be drawn under all outstanding
Letters of Credit plus the aggregate of all Unreimbursed
Amounts, including all L/C Borrowings. For purposes of
computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 2.7.13. For all purposes
of this Agreement, if on any date of determination a Letter of
Credit has expired by its terms but any amount may still be
drawn thereunder by reason of the operation of Rule 3.14 of
the ISP, such Letter of Credit shall be deemed to be
"outstanding" in the amount so remaining available to be
drawn.
"Letter of Credit" means any letter of credit issued hereunder
and shall include the Existing Letter of Credit.
"Letter of Credit Application" means an application and
agreement for the issuance or amendment of a Letter of Credit
in the form from time to time in use by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven
days prior to the Maturity Date then in effect (or, if such
day is not a Business Day, the next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section
2.7.9.
"Letter of Credit Sublimit" means an amount equal to
$15,000,000.00. The Letter of Credit Sublimit is part of, and
not in addition to, the Total Commitment.
"Outstanding Amount" means (i) with respect to the Loan on any
date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments
of the Loan occurring on such date; and (ii) with respect to
any L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements by the Borrower of
Unreimbursed Amounts.
"Total Outstandings" means the aggregate Outstanding Amount.
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2. "Unreimbursed Amount" has the meaning specified in Section
2.7.3(i).
3. The definition of the term "Adjusted Capitalized Value" is
hereby amended by deleting the therein to "nine percent (9%)"
and replacing same with "eight and three quarters percent
(8.75%)".
4. The definition of the term "Applicable Margin" is hereby
amended, effective as of the date of this Amendment, by
deleting the chart contained therein and replacing same with
the following:
----------------------------------------------------------------------
Level Leverage Applicable Applicable
Ratio Margin for Margin for
LIBO Rate Variable Rate
Loans Loans
----------------------------------------------------------------------
1 Leverage 120 basis 0 basis
Ratio<50% points points
----------------------------------------------------------------------
2 Leverage 135 basis 0 basis
Ratio=>50% points points
to <60%
----------------------------------------------------------------------
3 Leverage 150 basis 0 basis
Ratio=>60% points points
to <65%
----------------------------------------------------------------------
4 Leverage 165 basis 50 basis
Ratio=>65% points points
----------------------------------------------------------------------
5. The definition of the term "Availability" is hereby amended by
deleting the reference in subsection (a) thereof to
"sixty-five percent (65%)" and replacing same with "seventy
percent (70%)".
6. The definition of the term "Established Loan Amount" is hereby
deleted in its entirety and shall be replaced with the
following:
"Established Loan Amount shall mean, as of December 16, 2005,
Two Hundred Million Dollars ($200,000,000.00)."
7. The definition of the term "Implied Debt Service" is hereby
deleted in its entirety and shall be replaced with the
following:
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"Implied Debt Service shall mean the greater of (a) the annual
amount of principal and interest payable on a hypothetical
loan in an amount equal to the Implied Loan Amount, based upon
a twenty-five (25) year direct reduction monthly amortization
schedule and a per annum interest rate equal to the greater of
(i) the actual blended interest rate for the Loan, or (ii) the
10-year Treasury Rate as of the Calculation Date plus 1.50%,
or (b) an annual debt service constant of eight percent
(8.00%)".
8. The definition of the term "Implied Loan Amount" is hereby
amended by deleting the reference therein to "1.60 to 1.00"
and replacing same with "1.50 to 1.00".
9. The definition of the term "LIBO Rate " is hereby deleted in
its entirety and shall be replaced with the following:
"LIBO Rate" means, for any Interest Period with respect to an
Effective LIBO Rate Advance, the rate per annum equal to the
British Bankers Association LIBOR Rate ("BBA LIBOR"), as
published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00
a.m., London time, two Business Days prior to the commencement
of such Interest Period, for Dollar deposits (for delivery on
the first day of such Interest Period) with a term equivalent
to such Interest Period. If such rate is not available at such
time for any reason, then the "LIBO Rate" for such Interest
Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in
Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Effective
LIBO Rate Advance being made, continued or converted by Bank
of America, N.A. and with a term equivalent to such Interest
Period would be offered by Bank of America N.A.'s London
Branch to major banks in the London interbank eurodollar
market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such
Interest Period."
10. The definition of the term "Line Percentage" is hereby deleted
in its entirety and shall be replaced by the following:
"Line Percentage shall mean 0.15% per annum".
11. The definition of the term "Note" is hereby deleted in its
entirety and shall be replaced with the following:
"Note shall mean, collectively, the Second Amended and
Restated Promissory Notes and the Promissory Notes dated
December 16, 2005, payable to each Lender in the aggregate
original principal amount of the Established Loan Amount.
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12. The definition of "Permitted Investments" is hereby amended by
adding the following at the end of subsection (f) thereof:
"Provided, further, that in the event such an Investment in an
entity would result in the ownership by the subject Loan Party
of fifty percent (50%) or more in the aggregate of the equity
interests in such entity, such Investment shall have been
approved by the Board of Directors of the entity (or similar
governing body if such entity is not a corporation) which is
the subject of such Investment and such entity shall not have
announced that it will oppose such Investment or shall not
have commenced any action which alleges that such Investment
will violate any applicable law."
13. The definition of the term "Total Asset Value" is hereby
amended by replacing all references to the amount of "9.00%"
with references to the amount of "8.75%".
14. Section 1.3 of the Loan Agreement is hereby amended by
deleting the reference contained therein to "TWO HUNDRED
MILLION DOLLARS ($200,000,000.00)" and replacing same with
"THREE HUNDRED MILLION DOLLARS ($300,000,000.00)".
15. Section 2.1.1(iii) of the Loan Agreement is hereby amended by
deleting the reference contained therein to "Two Hundred
Million ($200,000,000.00) Dollars" and replacing same with
"Three Hundred Million ($300,000,000.00) Dollars".
16. Section 2.2.1 is hereby deleting in its entirety and shall be
replaced by the following:
"The Loan shall be for a term (the "Initial Term") commencing
on the date hereof and ending on January 30, 2008 or such
earlier date as the Loan is accelerated pursuant to the terms
of this Agreement upon an Event of Default (the "Initial
Maturity Date"). The Initial Term may be extended for one year
("Extended Term") until January 30, 2009 ("Extended Maturity
Date") upon satisfaction of the conditions set forth in
Section 2.2.3 (hereinafter, the Initial Maturity Date and the
Extended Maturity Date may be referred to herein sometimes as
the "Maturity Date" as may be applicable)."
17. Section 2.3.6 is hereby amended by deleting the second
sentence thereof and replacing same with the following:
"At no time shall there be outstanding a total of more than
six (6) Effective LIBO Rate Advances combined at any time."
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18. Section 2.3.9 is hereby amended by deleting therefrom "five
(5) days'" and replacing the same with the following:
"two (2) Business Days"
19. Sections 2.4.3 and 2.4.4 of the Loan Agreement are hereby
deleted in their entirety.
20. Section 2.7 is hereby deleted in its entirety and shall be
replaced by the following:
2.7 Letters of Credit.
2.7.1 The Letter of Credit Commitment.
(i) Subject to the terms and conditions set
forth herein, (A) the L/C Issuer agrees, in reliance upon the
agreements of the Lenders set forth in this Section 2.7, (1) from time
to time on any Business Day during the period from the Closing Date
until the Letter of Credit Expiration Date, to issue Letters of Credit
for the account of the Borrower or Borrower Subsidiaries, and to amend
or extend Letters of Credit previously issued by it, in accordance with
Section 2.7.2 below, and (2) to honor drawings under the Letters of
Credit; and (B) the Lenders severally agree to participate in Letters
of Credit issued for the account of the Borrower, Borrower Subsidiaries
and any drawings thereunder; provided that after giving effect to any
L/C Credit Extension with respect to any Letter of Credit, (x) the
Total Outstandings shall not exceed the Total Commitment, (y) the
aggregate Outstanding Amount of the Loans of any Lender, plus such
Lender's Commitment Percentage of the Outstanding Amount of all L/C
Obligations, shall not exceed such Lender's Commitment, and (z) the
Outstanding Amount of the L/C Obligations shall not exceed the Letter
of Credit Sublimit. Each request by the Borrower for the issuance or
amendment of a Letter of Credit shall be deemed to be a representation
by the Borrower that the L/C Credit Extension so requested complies
with the conditions set forth in the proviso to the preceding sentence.
Within the foregoing limits, and subject to the terms and conditions
hereof, the Borrower's ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Borrower may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed. All Existing
Letters of Credit shall be deemed to have been issued pursuant hereto,
and from and after the Closing Date shall be subject to and governed by
the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any
Letter of Credit, if:
(A) subject to Section 2.7.2(iii), the
expiry date of such requested Letter of Credit would occur
more than twelve months after the date of issuance or last
extension, unless the Required Lenders have approved such
expiry date; or
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(B) the expiry date of such requested
Letter of Credit would occur after the Letter of Credit
Expiration Date, unless all the Lenders have approved such
expiry date, subject to Section 2.7.7.
(iii) The L/C Issuer shall not be under any
obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of
any Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the L/C Issuer from issuing such
Letter of Credit, or any Legal Requirement applicable to the
L/C Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with
jurisdiction over the L/C Issuer shall prohibit, or request
that the L/C Issuer refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or
shall impose upon the L/C Issuer with respect to such Letter
of Credit any restriction, reserve or capital requirement (for
which the L/C Issuer is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose upon the
L/C Issuer any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which the L/C Issuer in
good xxxxx xxxxx material to it;
(B) the issuance of such Letter of
Credit would violate one or more policies of the L/C Issuer;
(C) except as otherwise agreed by the
Administrative Agent and the L/C Issuer, such Letter of Credit
is in an initial stated amount less than $25,000.00, in the
case of a standby Letter of Credit;
(D) such Letter of Credit is to be
denominated in a currency other than Dollars;
(E) such Letter of Credit contains any
provisions for automatic reinstatement of the stated amount
after any drawing thereunder; or
(F) a default of any Lender's
obligations to fund under Section 2.7.3 exists or any Lender
is at such time a Delinquent Lender hereunder, unless the L/C
Issuer has entered into satisfactory arrangements with the
Borrower or such Lender to eliminate the L/C Issuer's risk
with respect to such Lender, subject to the provisions of
Section 13.2.8.
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(iv) The L/C Issuer shall be under no
obligation to amend any Letter of Credit if (A) the L/C Issuer would
have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such
Letter of Credit does not accept the proposed amendment to such Letter
of Credit.
(v) The L/C Issuer shall act on behalf of
the Lenders with respect to any Letters of Credit issued by it and the
documents associated therewith, and the L/C Issuer shall have all of
the benefits and immunities (A) provided to the Administrative Agent in
Article 13 with respect to any acts taken or omissions suffered by the
L/C Issuer in connection with Letters of Credit issued by it or
proposed to be issued by it and Issuer Documents pertaining to such
Letters of Credit as fully as if the term "Administrative Agent" as
used in Article 13 included the L/C Issuer with respect to such acts or
omissions, and (B) as additionally provided herein with respect to the
L/C Issuer.
2.7.2 Procedures for Issuance and Amendment of Letters of
Credit; Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended,
as the case may be, upon the request of the Borrower delivered to the
L/C Issuer (with a copy to the Administrative Agent) in the form of a
Letter of Credit Application, appropriately completed and signed by an
Authorized Representative of the Borrower. Such Letter of Credit
Application must be received by the L/C Issuer and the Administrative
Agent not later than 11:00 a.m. (Eastern Time) at least two Business
Days (or such later date and time as the Administrative Agent and the
L/C Issuer may agree in a particular instance in their sole discretion)
prior to the proposed issuance date or date of amendment, as the case
may be. In the case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Application shall specify in form and
detail reasonably satisfactory to the L/C Issuer: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D)
the name and address of the beneficiary thereof; (E) the documents to
be presented by such beneficiary in case of any drawing thereunder; (F)
the full text of any certificate to be presented by such beneficiary in
case of any drawing thereunder; and (G) such other matters as the L/C
Issuer may reasonably require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C
Issuer (1) the Letter of Credit to be amended; (2) the proposed date of
amendment thereof (which shall be a Business Day); (3) the nature of
the proposed amendment; and (4) such other matters as the L/C Issuer
may reasonably require. Additionally, the Borrower shall furnish to the
L/C Issuer and the Administrative Agent such other documents and
information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may reasonably require.
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(ii) Promptly after receipt of any Letter of Credit
Application, the L/C Issuer will provide the Administrative Agent with
a copy thereof. Unless the L/C Issuer has received written notice from
any Lender, the Administrative Agent or any Loan Party, at least one
Business Day prior to the requested date of issuance or amendment of
the applicable Letter of Credit, that one or more applicable conditions
contained in Sections 2.1.3(ii) or 2.1.3(iii) shall not then be
satisfied, then, subject to the terms and conditions hereof, the L/C
Issuer shall, on the requested date, issue a Letter of Credit for the
account of the Borrower or the applicable Borrower Subsidiary or enter
into the applicable amendment, as the case may be, in each case in
accordance with the L/C Issuer's usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the L/C Issuer a risk participation in such
Letter of Credit in an amount equal to the product of such Lender's
Commitment Percentage times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable
Letter of Credit Application, the L/C Issuer may, in its sole and
absolute discretion, agree to issue a Letter of Credit that has
automatic extension provisions (each, an "Auto-Extension Letter of
Credit"); provided that any such Auto-Extension Letter of Credit must
permit the L/C Issuer to prevent any such extension at least once in
each twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof not
later than a day (the "Non-Extension Notice Date") in each such
twelve-month period to be agreed upon at the time such Letter of Credit
is issued. Unless otherwise directed by the L/C Issuer, the Borrower
shall not be required to make a specific request to the L/C Issuer for
any such extension. Once an Auto-Extension Letter of Credit has been
issued, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the extension of such Letter of
Credit at any time to an expiry date not later than the Letter of
Credit Expiration Date; provided, however, that the L/C Issuer shall
not permit any such extension if (A) the L/C Issuer has determined that
it would not be permitted, or would have no obligation, at such time to
issue such Letter of Credit in its revised form (as extended) under the
terms hereof (by reason of the provisions of clause (ii) or (iii) of
Section 2.7.1 or otherwise), or (B) it has received notice (which may
be by telephone or in writing) on or before the day that is five
Business Days before the Non-Extension Notice Date (1) from the
Administrative Agent that the Required Lenders have elected not to
permit such extension or (2) from the Administrative Agent, any Lender
or the Borrower that one or more of the applicable conditions specified
in Sections 2.1.3(ii) or 2.1.3(iii) are not then satisfied, and in each
such case directing the L/C Issuer not to permit such extension.
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(iv) If the Borrower so requests in any applicable
Letter of Credit Application, the L/C Issuer may, in its sole and
absolute discretion, agree to issue a Letter of Credit that permits the
automatic reinstatement of all or a portion of the stated amount
thereof after any drawing thereunder (each, an "Auto-Reinstatement
Letter of Credit"). Unless otherwise directed by the L/C Issuer, the
Borrower shall not be required to make a specific request to the L/C
Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter
of Credit has been issued, except as provided in the following
sentence, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to reinstate all or a portion of the stated
amount thereof in accordance with the provisions of such Letter of
Credit. Notwithstanding the foregoing, if such Auto-Reinstatement
Letter of Credit permits the L/C Issuer to decline to reinstate all or
any portion of the stated amount thereof after a drawing thereunder by
giving notice of such non-reinstatement within a specified number of
days after such drawing (the "Non-Reinstatement Deadline"), the L/C
Issuer shall not permit such reinstatement if it has received a notice
(which may be by telephone or in writing) on or before the day that is
five Business Days before the Non-Reinstatement Deadline (A) from the
Administrative Agent that the Required Lenders have elected not to
permit such reinstatement or (B) from the Administrative Agent, any
Lender or the Borrower that one or more of the applicable conditions
specified in Sections 2.1.3(ii) or 2.1.3(iii) are not then satisfied
(treating such reinstatement as an L/C Credit Extension for purposes of
this clause) and, in each case, directing the L/C Issuer not to permit
such reinstatement.
(v) Promptly after its delivery of any Letter of
Credit or any amendment to a Letter of Credit to an advising bank with
respect thereto or to the beneficiary thereof, the L/C Issuer will also
deliver to the Borrower and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.
2.7.3 Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter
of Credit of any notice of a drawing under such Letter of Credit, the
L/C Issuer shall notify the Borrower and the Administrative Agent
thereof. Not later than 11:00 a.m. (Eastern Time) on the date of any
payment by the L/C Issuer under a Letter of Credit (each such date, an
"Honor Date"), the Borrower shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing.
If the Borrower fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor
Date, the amount of the unreimbursed drawing (the "Unreimbursed
Amount"), and the amount of such Lender's Commitment Percentage
thereof. In such event, the Borrower shall be deemed to have requested
a Variable Rate Advance under the Note to be disbursed on the Honor
Date in an amount equal to the Unreimbursed Amount, without regard to
the minimum and multiples specified in Section 2.1 for the principal
amount of the Loan, but subject to the amount of the unutilized portion
of the Total Commitment and the conditions set forth in Sections
2.1.3(ii) and 2.1.3(iii). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.7.3(i) may be given by
telephone if immediately confirmed in writing; provided that the lack
of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.
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(ii) Each Lender shall upon any notice pursuant to
Section 2.7.3(i) make funds available to the Administrative Agent for
the account of the L/C Issuer at the Administrative Agent's Office in
an amount equal to its Commitment Percentage of the Unreimbursed Amount
not later than 1:00 p.m. (Eastern Time) on the Business Day specified
in such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.7.3(iii), each Lender that so makes funds
available shall be deemed to have made a Variable Rate Advance to the
Borrower in such amount. The Administrative Agent shall remit the funds
so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is
not fully refinanced by a Loan Advance because the conditions set forth
in Section 2.1.3(ii) or 2.1.3(iii) cannot be satisfied or for any other
reason, the Borrower shall be deemed to have incurred from the L/C
Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that
is not so refinanced, which L/C Borrowing shall be due and payable on
demand (together with interest) and shall bear interest at the Default
Rate. In such event, each Lender's payment to the Administrative Agent
for the account of the L/C Issuer pursuant to Section 2.7.3 (ii) shall
be deemed payment in respect of its participation in such L/C Borrowing
and shall constitute an L/C Advance from such Lender in satisfaction of
its participation obligation under this Section 2.7.
(iv) Until each Lender funds its Commitment
Percentage of any Loan Advance or L/C Advance pursuant to this Section
2.7.3 to reimburse the L/C Issuer for any amount drawn under any Letter
of Credit, interest in respect of such Lender's Commitment Percentage
of such amount shall be solely for the account of the L/C Issuer.
(v) Each Lender's obligation to make Loan Advances or
L/C Advances to reimburse the L/C Issuer for amounts drawn under
Letters of Credit, as contemplated by this Section 2.7.3, shall be
absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the L/C
Issuer, the Borrower or any other Person for any reason whatsoever; (B)
the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender's obligation to make
Loans pursuant to this Section 2.7.3 is subject to the conditions set
forth in Sections 2.1.3(ii) or 2.1.3(iii). No such making of an L/C
Advance shall relieve or otherwise impair the obligation of the
Borrower to reimburse the L/C Issuer for the amount of any payment made
by the L/C Issuer under any Letter of Credit, together with interest as
provided herein.
-12-
(vi) If any Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing provisions
of this Section 2.7.3 by the time specified in Section 2.7.3(ii), the
L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the L/C Issuer
at a rate per annum equal to the greater of the Federal Funds Rate and
a rate determined by the L/C Issuer in accordance with banking industry
rules on interbank compensation. A certificate of the L/C Issuer
submitted to any Lender (through the Administrative Agent) with respect
to any amounts owing under this clause (vi) shall be conclusive absent
manifest error.
2.7.4 Repayment of Participations.
(i) At any time after the L/C Issuer has made a
payment under any Letter of Credit and has received from any Lender
such Lender's L/C Advance in respect of such payment in accordance with
Section 2.7.3, if the Administrative Agent receives for the account of
the L/C Issuer any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from the Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such
Lender its Commitment Percentage thereof (appropriately adjusted, in
the case of interest payments, to reflect the period of time during
which such Lender's L/C Advance was outstanding) in the same funds as
those received by the Administrative Agent.
(ii) If any payment received by the Administrative
Agent for the account of the L/C Issuer pursuant to Section 2.7.3(i) is
required to be returned under any of the provisions of this Agreement
(including pursuant to any settlement entered into by the L/C Issuer in
its discretion), each Lender shall pay to the Administrative Agent for
the account of the L/C Issuer its Commitment Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date
of such demand to the date such amount is returned by such Lender, at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. The obligations of the Lenders under this clause shall survive
the payment in full of the Obligations and the termination of this
Agreement.
2.7.5 Obligations Absolute. The obligation of the Borrower to
reimburse the L/C Issuer for each drawing under each Letter of Credit and to
repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
-13-
(i) any lack of validity or enforceability of such
Letter of Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim,
setoff, defense or other right that the Borrower or any Borrower
Subsidiary may have at any time against any beneficiary or any
transferee of such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the L/C Issuer or
any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other
document presented under such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or delay
in the transmission or otherwise of any document required in order to
make a drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter
of Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment
made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
such Letter of Credit, including any arising in connection with any
proceeding under any debtor relief Legal Requirement; or
(v) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, the Borrower or any Borrower Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will, immediately after discovery thereof, notify the L/C Issuer. The
Borrower shall be conclusively deemed to have waived any such claim against the
L/C Issuer and its correspondents unless such notice is given as aforesaid.
-14-
2.7.6 Role of L/C Issuer. Each Lender and the Borrower agree
that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not
have any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the
L/C Issuer, the Administrative Agent, any of their respective Affiliates nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable; (ii)
any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. The Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and shall
not, preclude the Borrower's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None
of the L/C Issuer, the Administrative Agent, any of their respective Affiliates
nor any correspondent, participant or assignee of the L/C Issuer shall be liable
or responsible for any of the matters described in clauses (i) through (v) of
Section 2.7.5 provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against the L/C Issuer, and the
L/C Issuer may be liable to the Borrower, to the extent, but only to the extent,
of any direct, as opposed to consequential or exemplary, damages suffered by the
Borrower which the Borrower proves were caused by the L/C Issuer's willful
misconduct or gross negligence or the L/C Issuer's willful failure to pay under
any Letter of Credit after the presentation to it by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and conditions of a
Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C
Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
2.7.7 Cash Collateral. Upon the request of the Administrative Agent,
(i) if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any L/C Obligation for any reason
remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations. For purposes
of this Agreement, "Cash Collateralize" means to pledge and deposit with or
deliver to the Administrative Agent, for the benefit of the L/C Issuer and the
Lenders, as collateral for the L/C Obligations, cash or deposit account balances
(the "Cash Collateral") pursuant to documentation in form and substance
satisfactory to the Administrative Agent and the L/C Issuer (which documents are
hereby consented to by the Lenders). Derivatives of such term have corresponding
meanings. The Borrower hereby grants to the Administrative Agent, for the
benefit of the L/C Issuer and the Lenders, a security interest in all such Cash
Collateral and all proceeds of the foregoing. Cash Collateral shall be
maintained in blocked, non-interest bearing deposit accounts at Bank of America.
-15-
2.7.8 Applicability of ISP and UCP. Unless otherwise expressly agreed
by the L/C Issuer and the Borrower when a Letter of Credit is issued (including
any such agreement applicable to an Existing Letter of Credit), the rules of the
ISP shall apply to each standby Letter of Credit.
2.7.9 Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its
Commitment Percentage an annual Letter of Credit fee (the "Letter of Credit
Fee") for each standby Letter of Credit equal to the Applicable Margin for
Effective LIBO Rate Advances times the maximum stated amount available to be
drawn under such Letter of Credit. For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 2.7.13. Letter of Credit
Fees shall be (i) computed on a quarterly basis in arrears and (ii) due and
payable on the first Business Day after the end of each March, June, September
and December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. The first and last payments of such Letter of Credit fee are to be
prorated based upon the partial calendar quarters to which they apply. If there
is any change in the Applicable Margin for Effective LIBO Rate Advances during
any quarter, the daily amount available to be drawn under each standby Letter of
Credit shall be computed and multiplied by the Applicable Margin for Effective
LIBO Rate Advances separately for each period during such quarter that such
Applicable Rate was in effect. Notwithstanding anything to the contrary
contained herein, upon the request of the Required Lenders, while any Event of
Default exists, all Letter of Credit Fees shall accrue at the Default Rate.
2.7.10 Fronting Fee and Documentary and Processing Charges Payable to
L/C Issuer. The Borrower shall pay directly to the L/C Issuer for its own
account a fronting fee (i) with respect to each Letter of Credit, of one eighth
of one percent (.125%) per annum, computed on the maximum stated amount of such
Letter of Credit. Such fronting fee shall be due and payable on the first
Business Day after the end of each March, June, September and December in
respect of the most recently-ended quarterly period (or portion thereof, in the
case of the first payment), commencing with the first such date to occur after
the issuance of such Letter of Credit, on the Letter of Credit Expiration Date
and thereafter on demand. For purposes of computing the maximum stated amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 2.7.13. In addition, the
Borrower shall pay directly to the L/C Issuer for its own account the customary
issuance, presentation, amendment and other processing fees, and other standard
costs and charges, of the L/C Issuer relating to letters of credit as from time
to time in effect. Such customary fees and standard costs and charges are due
and payable on demand and are nonrefundable.
2.7.11 Conflict with Issuer Documents. In the event of any conflict
between the terms hereof and the terms of any Issuer Document, the terms hereof
shall control.
-16-
2.7.12 Letters of Credit Issued for Borrower Subsidiaries.
Notwithstanding that a Letter of Credit issued or outstanding hereunder is in
support of any obligations of, or is for the account of, a Borrower Subsidiary,
the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any
and all drawings under such Letter of Credit. The Borrower hereby acknowledges
that the issuance of Letters of Credit for the account of Borrower Subsidiaries
inures to the benefit of the Borrower, and that the Borrower's business derives
substantial benefits from the businesses of such Borrower Subsidiaries.
2.7.13. Amount. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the stated amount of such
Letter of Credit in effect at such time; provided, however, that with respect to
any Letter of Credit that, by its terms or the terms of any Issuer Document
related thereto, provides for one or more automatic increases in the stated
amount thereof, the amount of such Letter of Credit shall be deemed to be the
maximum stated amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect at such time."
21. The Loan Agreement is hereby amended by inserting new Section
7.29 as follows:
"7.29 USA PATRIOT Act Notice. Each Lender that is subject to
the Act (as hereinafter defined) and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies
the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies the Borrower,
which information includes the name and address of the
Borrower and other information that will allow such Lender or
the Administrative Agent, as applicable, to identify the
Borrower in accordance with the Act."
22. Section 8.3 is hereby amended by adding new subsection 8.3.14
as follows:
"8.3.14. The creation of further condominium units in the
Individual Property owned by Cedar-Revere, LLC, and the
performance of construction in connection therewith, subject
to the Administrative Agent's reasonable approval of the
condominium documents creating such additional units and such
normal and customary due diligence as the Administrative Agent
may reasonably require."
23. Section 8.4.3 is hereby deleted in its entirety and shall be
replaced with the following".
"8.4.3 Individual Property secured Debt of the Borrower, CSC
or any Borrower Subsidiary which is recourse to the Borrower
or CSC consistent with customary project finance market terms
and conditions (excluding (a) the construction loan facility
on the property located at 00xx Xxxxxx and Xxxxxxx Xxxx, Xxxx
Xxxx, Xxxxxxxxxxxx 00000 and (b) the Obligations) in an amount
not to exceed fifteen percent (15%) of the Total Asset Value
in the aggregate outstanding at any one time, provided that
the Borrower will be in compliance with the Financial
Covenants considering the consequences of the incurrence of
such Debt;"
-17-
24. Section 14.7 is hereby amended by inserting the following text
at the end thereof:
"and shall also be subject to the terms and provisions of any
condominium documents as to which a Collateral Property is
subject."
25. Exhibit B-1 to the Loan Agreement is hereby deleted in its
entirety and shall be replaced with the Exhibit B-1 attached
hereto as Exhibit E.
26. Exhibit F to the Loan Agreement is hereby deleted in its
entirety and shall be replaced with the Exhibit F attached
hereto as Exhibit A.
27. Exhibit G to the Loan Agreement is hereby deleted in its
entirety and shall be replaced with the Exhibit G attached
hereto as Exhibit F.
28. Immediately after the execution hereof, Exhibit I to the Loan
Agreement shall be deemed deleted in its entirety and shall be
replaced with the Exhibit I attached hereto as Exhibit B.
29. Immediately after the execution hereof, Exhibit J to the Loan
Agreement shall be deemed deleted in its entirety and shall be
replaced with the Exhibit J attached hereto as Exhibit C. The
Borrower hereby certifies, warrants and represents that, to
the best of Borrower's knowledge, the Individual Properties
being added as Borrowing Base Properties satisfy the Borrowing
Base Requirements and the related Eligibility Criteria, all as
set forth in the Loan Agreement.
30. Immediately after the execution hereof, Schedule 6.14.2(i) to
the Loan Agreement shall be deemed deleted in its entirety and
shall be replaced with the Schedule 6.14.2(i) attached hereto
as Exhibit D.
31. The Borrower hereby ratifies, confirms, and reaffirms all of
the terms and conditions of the Loan Agreement, and all of the
other documents, instruments, and agreements evidencing the
Loan Arrangement including, without limitation, the Note. The
Borrower further acknowledges and agrees that all of the terms
and conditions of the Loan Arrangement shall remain in full
force and effect except as expressly provided in this Fourth
Amendment. No novation of the indebtedness evidenced by the
Note, the Loan Agreement or any other Loan Document shall
occur as a result of the execution of this Fourth Amendment.
-18-
32. Any determination that any provision of this Fourth Amendment
or any application hereof is invalid, illegal or unenforceable
in any respect and in any instance shall not effect the
validity, legality, or enforceability of such provision in any
other instance, or the validity, legality or enforceability of
any other provisions of this Fourth Amendment.
33. This Fourth Amendment may be executed in several counterparts
and by each party on a separate counterpart, each of which
when so executed and delivered shall be an original, and all
of which together shall constitute one instrument. In proving
this Fourth Amendment, it shall not be necessary to produce or
account for more than one such counterpart signed by the party
against whom enforcement is sought.
34. The Loan Agreement, as amended by this Fourth Amendment,
constitutes the entire agreement of the parties regarding the
matters contained herein and shall not be modified by any
prior oral or written communications.
35. The Borrower acknowledges, confirms and agrees that it has no
offsets, defenses, claims or counterclaims against the
Administrative Agent or the Lenders with respect to any of the
Borrower's liabilities and obligations to the Administrative
Agent or the Lenders under the Loan Arrangement, and to the
extent that the Borrower has any such claims under the Loan
Arrangement, the Borrower affirmatively WAIVES and RENOUNCES
such claims as of the date hereof.
36. Disclaimer of Fiduciary Relationship with Lead Arranger or its
Affiliates. The Borrower, on behalf of itself, its
subsidiaries and affiliates and any other person controlled by
the Borrower (each of the Borrower, its subsidiaries and
affiliates and such other persons, a "Borrower Entity"),
acknowledges and agrees in connection with all aspects of the
transactions contemplated by the Loan Arrangement, as modified
to date, that (a) Borrower and each of the Borrower Entities
and (b) Banc of America Securities LLC as the Lead Arranger
(the "Lead Arranger") and any of the affiliates through which
the Lead Arranger may be acting, have an arms length business
relationship that creates no fiduciary duty. The Borrower on
behalf of itself and each other Borrower Entity hereby
expressly disclaims that any fiduciary relationship exists
between the parties by way of this Loan Arrangement or
otherwise.
37. Conditions Precedent. This Fourth Amendment shall become
effective as of the date first above written, as such time
when all of the following conditions are satisfied:
a. All Lenders shall have executed this Fourth
Amendment.
b. The Borrower shall have executed this Fourth
Amendment.
-19-
c. The Lenders shall have received such executed
resolutions, secretary's certificates and
certificates of legal existence as the Administrative
Agent may specify all in form and substance
satisfactory to the Administrative Agent and its
counsel.
d. The Lenders shall have received such legal opinions
for the Borrower and such other parties as the
Administrative Agent may require, all in form and
substance satisfactory to the Administrative Agent
and its counsel.
e. The Lenders shall have received such title
endorsements as the Administrative Agent may require
to insure the continuing priority of the Lenders'
liens and security interests, all in form and
substance satisfactory to the Administrative Agent
and its counsel.
f. The Borrower shall have paid the fees, costs and
expenses of the Administrative Agent's counsel in
connection with this Fourth Amendment.
[The balance of this page is intentionally left blank]
-20-
IN WITNESS WHEREOF, this Fourth Amendment has been executed as a sealed
instrument as of the date first set forth above.
BORROWER:
CEDAR SHOPPING CENTERS PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Cedar Shopping Centers, Inc.,
its general partner
By: /s/ Xxx X. Xxxxxx
---------------------------
Name: Xxx X. Xxxxxx
Title: President
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
COMMERZBANK AG NEW YORK BRANCH
By: /s/ Xxxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxx, Xx.
---------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Vice President
PB CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
By: /s/ Xxxxxx Xxx
---------------------------
Name: Xxxxxx Xxx
Title: Assistant Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
SOVEREIGN BANK
By: /s/ T. Xxxxxxx Xxxxxxx
------------------------
Name: T. Xxxxxxx Xxxxxxx
Title: Senior Vice President
XXXXXXX XXXXX BANK, FSB
By: /s/ Xxx Xxxxxx
----------------------------
Name: Xxx Xxxxxx
Title: Senior Vice President
CITIZENS BANK OF PENNSYLVANIA
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
KEYBANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxx
---------------------------
Name: Xxxxxxx X. Xxxx
Title: Relationship Manager
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Shockey__
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: First Vice President
EXHIBIT A
EXHIBIT F TO LOAN AGREEMENT
OWNERSHIP INTERESTS AND TAXPAYER IDENTIFICATION NUMBERS
----------------------------------------------------------------------------------------------------------
ENTITY NAME PARTNERS/MEMBERS TAX IDENTIFICATION NUMBER
----------- ---------------- -------------------------
----------------------------------------------------------------------------------------------------------
Cedar-South Philadelphia I, LLC Cedar-South Philadelphia II, LLC (100%) 00-0000000
----------------------------------------------------------------------------------------------------------
Cedar-South Philadelphia II, LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
Cedar-Riverview LP Cedar-Riverview LLC (1%; general 00-0000000
partner); CSC-Riverview LLC (99%;
limited partner)
----------------------------------------------------------------------------------------------------------
Cedar-Riverview LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
CSC-Riverview LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
Cedar Lender LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
Delaware 1851 Associates, LP Cedar-Columbus LLC (1%; general 00-0000000
partner); CSC-Columbus LLC (99%;
limited partner)
----------------------------------------------------------------------------------------------------------
Cedar-Columbus LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
Cedar Sunset Crossing, LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
CSC-Columbus LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
Cedar Xxxxxx, LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
EF-1
----------------------------------------------------------------------------------------------------------
Swede Square Associates, L.P. Swede Square, LLC (0.1%; general 00-0000000
partner); Cedar Shopping Centers
Partnership, L.P. (99.9%; limited
partner)
----------------------------------------------------------------------------------------------------------
Swede Square, LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
Cedar Lake Raystown, LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
Cedar Huntingdon, LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
Cedar Brickyard, LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
Cedar St. Xxxxx, LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
Cedar Kenley Village, LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
Cedar-Valley Plaza, LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
Cedar-Xxxx Xxxxx UK, LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
Cedar-Fredericksburg UK, LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
Cedar-Salem Run, LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
Cedar-VA Commons LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
Cedar-Revere LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
Cedar-Carlisle, LLC Cedar Shopping Centers Partnership, 00-0000000
L.P. (100%)
----------------------------------------------------------------------------------------------------------
EF-2
EXHIBIT B
EXHIBIT I TO LOAN AGREEMENT
LENDERS' COMMITMENT
---------------------------------------------------------------------------------------------------------------------
LENDER COMMITMENT AMOUNT COMMITMENT PERCENTAGE
------ ----------------- ---------------------
---------------------------------------------------------------------------------------------------------------------
BANK OF AMERICA, N.A. $25,000,000.00 12.5%
---------------------------------------------------------------------------------------------------------------------
COMMERZBANK AG NEW YORK BRANCH $25,000,000.00 12.5%
---------------------------------------------------------------------------------------------------------------------
PB CAPITAL CORPORATION $25,000,000.00 12.5%
---------------------------------------------------------------------------------------------------------------------
MANUFACTURERS AND TRADERS TRUST COMPANY $23,500,000.00 11.75%
---------------------------------------------------------------------------------------------------------------------
SOVEREIGN BANK $23,500,000.00 11.75%
---------------------------------------------------------------------------------------------------------------------
XXXXXXX XXXXX BANK, FSB $14,000,000.00 7.0%
---------------------------------------------------------------------------------------------------------------------
CITIZENS BANK OF PENNSYLVANIA $25,000,000.00 12.5%
---------------------------------------------------------------------------------------------------------------------
KEYBANK, NATIONAL ASSOCIATION $25,000,000.00 12.5%
---------------------------------------------------------------------------------------------------------------------
LASALLE BANK NATIONAL ASSOCIATION $14,000,000.00 7.0%
---------------------------------------------------------------------------------------------------------------------
TOTAL $200,000,000.00 100%
---------------------------------------------------------------------------------------------------------------------
EI-1
EXHIBIT C
EXHIBIT J TO LOAN AGREEMENT
------------------------------------------------------------------------------------------------
ADJUSTED APPRAISED VALUE
BORROWING BASE PROPERTY AS OF DECEMBER , 2005
----------------------- ----------------------
------------------------------------------------------------------------------------------------
South Philadelphia Shopping Plaza $36,400,000.00
Philadelphia, Pennsylvania
------------------------------------------------------------------------------------------------
Riverview Shopping Center $43,200.000.00
Philadelphia, Pennsylvania
------------------------------------------------------------------------------------------------
Sunset Crossing Shopping Center $11,250,000.00
Xxxxxxx, Pennsylvania
------------------------------------------------------------------------------------------------
Columbus Crossing Shopping Center $23,000,000.00
Philadelphia, Pennsylvania
------------------------------------------------------------------------------------------------
Xxxxxx Commons Shopping Center $17,690,000.00
Xxxxx, Pennsylvania
------------------------------------------------------------------------------------------------
Swede Square Shopping Center $11,500,000.00
East Norriton, Pennsylvania
------------------------------------------------------------------------------------------------
Lake Raystown Shopping Center $6,700,000.00
Smithfield, Pennsylvania
------------------------------------------------------------------------------------------------
Brickyard Shopping Center $28,200,000.00
Berlin, Connecticut
------------------------------------------------------------------------------------------------
Valley Plaza Shopping Center, Hagerstown, Maryland $9,950,000.00
------------------------------------------------------------------------------------------------
St. Xxxxx Shopping Center, Hagerstown, Maryland $4,250,000.00
------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx $3,750,000.00
------------------------------------------------------------------------------------------------
Ukrop's Shopping Center, $16,000,000.00
Fredericksburg, Virginia
------------------------------------------------------------------------------------------------
Ukrop's Shopping Center, $6,300,000.00
Glen Allen, Virginia
------------------------------------------------------------------------------------------------
Virginia Center Commons $4,900,000.00
Glen Allen, Virginia
------------------------------------------------------------------------------------------------
The Shoppes at Salem Run $5,300,000.00
Fredericksburg, Virginia
------------------------------------------------------------------------------------------------
Xxxx 0 xx Xxx Xxxxx xx Xxxxxxx Xxxxx $19,300,000.00 (As Is)
Condominium $20,900,000.00 (At Completion)
Revere, Massachusetts
------------------------------------------------------------------------------------------------
Point at Carlisle Shopping Center $12,900,000.00
Carlisle, Pennsylvania
------------------------------------------------------------------------------------------------
EJ-1
EXHIBIT D
SCHEDULE 6.14.2(i) TO LOAN AGREEMENT
-----------------------------------------------------------------------------------------------------------
BORROWING BASE PROPERTY FEE OR LEASEHOLD ESTATE INTEREST
----------------------- --------------------------------
-----------------------------------------------------------------------------------------------------------
South Philadelphia Shopping Plaza Leasehold
Philadelphia, Pennsylvania
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Riverview Shopping Center Fee and Leasehold
Philadelphia, Pennsylvania
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Sunset Crossing Shopping Center Fee
Xxxxxxx, Pennsylvania
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Columbus Crossing Shopping Center Fee
Philadelphia, Pennsylvania
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Xxxxxx Commons Shopping Center Fee
Xxxxx, Pennsylvania
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Swede Xxxxxx Xxxxxxxx Xxxxxx Xxx
Xxxx Xxxxxxxx, Xxxxxxxxxxxx
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Lake Raystown Shopping Center Fee
Smithfield, Pennsylvania
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Brickyard Shopping Center Fee
Berlin, Connecticut
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Valley Plaza Shopping Center, Hagerstown, Fee
Maryland
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St. Xxxxx Shopping Center, Hagerstown, Maryland Fee
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Kenley Village Shopping Center, Hagerstown, Fee
Maryland
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Ukrop's Shopping Center, Fee
Fredericksburg, Virginia
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Ukrop's Shopping Center, Fee
Glen Allen, Virginia
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Virginia Center Commons, Fee
Glen Allen, Virginia
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The Shoppes at Salem Run, Fee
Fredericksburg, Virginia
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Xxxx 0 of The Shops at Suffolk Downs
Condominium, Fee
Revere, Massachusetts
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Point at Carlisle Shopping Center Fee
Carlisle, Pennsylvania
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RIGHTS OF FIRST REFUSAL
Right of First Refusal, executed on October 31, 2003, and effective as of
November 3, 2003, granted by Cedar-Riverview LP, a Pennsylvania limited
partnership, to Firehouse Realty Corp., a Pennsylvania corporation, Xxxx
Development Associates, Inc., a Pennsylvania corporation, South River View
Plaza, Inc., a Pennsylvania corporation, River View Development Corp., a
Pennsylvania corporation, and Riverview Commons, Inc., a Pennsylvania
corporation.
Right of First Refusal, executed on November 19, 2003, and effective as of
December 9, 2003, granted by Delaware 1851 Associates, LP, a Pennsylvania
limited partnership, to Welsh-Square, Inc., a Pennsylvania corporation,
Indenture of Trust of Xxxx Xxxxxxxxx dated as of June 9, 1998, a Pennsylvania
trust, and Irrevocable Indenture of Trust of Xxxxxx Xxxxxxxxx dated July 13,
1999, a Pennsylvania trust.
EXHIBIT E
EXHIBIT B-1 TO LOAN AGREEMENT
REQUISITION AND AVAILABILITY CERTIFICATE
TO: Bank of America, N.A. ("Administrative Agent")
RE: Loan Agreement dated as of January 30, 2004 (as amended, the "Loan
Agreement") between Administrative Agent, the lenders described therein
and Cedar Shopping Centers Partnership, L.P. ("Borrower")
LOAN REQUEST NO.:________________
AMOUNT OF LOAN ADVANCE REQUESTED:$__________________
DATE:________________, 200__
This Borrower's Certificate and Request for Loan Advance is submitted
by Borrower to Administrative Agent pursuant to the provisions of the Loan
Agreement in order to induce Lenders to make the Loan Advance identified above.
Capitalized terms used herein which are not otherwise specifically defined shall
have the same meaning herein as in the Loan Agreement.
Borrower hereby requests Lenders to make a Loan Advance under the Notes
in the following amount:
$_________________.
The Loan Advance is requested for the following purposes:______________
________________________________________________________________________________
_______________________________________________________________________________.
The Loan Advance requested of $______________, when added to prior Loan
Advances under the Notes of $________________, plus the L/C Exposure of
$__________________, will result in aggregate Loans plus L/C Exposure of
$_______________.
The types of Loans requested are as follows:
Variable Rate: $__________________
Effective LIBO Rate $___________________
Interest Period________________
$___________________
Interest Period________________
The Maximum Loan Amount shall not be exceeded upon the making of the
Loan Advance requested hereunder. Calculations of the Maximum Loan Amount,
current Loan balance, and amount of the Loan available to be advanced and/or
L/C's available to be issued are set forth on the Availability Certificate
annexed hereto.
Borrower hereby certifies, warrants and represents to Administrative
Agent and the Lenders that (except for each condition precedent to Lender's
obligation to make the requested Loan Advance) this request: (i) constitutes an
affirmation by Borrower that, except as otherwise disclosed in writing to the
Administrative Agent, each of the warranties and representations made in the
Loan Agreement, including, without limitation, the Borrower's continued
compliance with the Financial Covenants, as satisfied by the Closing Compliance
Certificate, or once delivered, the most recent Compliance Certificate delivered
by the Borrower to the Agent, remains true and correct in all material respects
as of the date of this request and, unless Administrative Agent is notified to
the contrary prior to the disbursement of the Loan Advance, will be so on the
date of such Loan Advance; and (ii) constitutes the representation and warranty
of Borrower that the information set forth in this request is true, accurate and
complete in all material respects.
The Borrower hereby further certifies, warrants and represents to
Administrative Agent and the Lenders that: (i) to the best of the Borrower's
knowledge, the financial information provided by the Borrower to the Agent
remains true and accurate in all material respects; (ii) the Borrower is in
compliance with the financial covenants contained in the Loan Agreement to the
extent set forth below; (iii) to the best of the Borrower's knowledge, an Event
of Default which is continuing has not occurred under the Loan Agreement or any
of the other Loan Documents.
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COVENANT REQUIREMENT ACTUAL
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Interest Expense Coverage Not less than 2.00:1
--------------------------------------------------------------------------------------------------------------------
Leverage Ratio Less than 70%
--------------------------------------------------------------------------------------------------------------------
Fixed Charge Ratio On or prior to December 31, 2005:
Not less than 1.35:1
Following December 31, 2005: Not less
than 1.50:1
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Borrower's Net Worth Not less than 85% of the Borrower's
Net Worth as of December 31, 2003,
plus 85% of cumulative net cash
proceeds, as set forth in the Loan
Agreement
--------------------------------------------------------------------------------------------------------------------
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Occupancy Ratio for Borrowing Base Not less than 85% for the aggregate
Properties of all Borrowing Base Properties, and
not less than 80% for each individual
Borrowing Base Property
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Aggregate Pro Rata amount of the Prior to, and including, December 31,
Variable Rate Indebtedness of the 2005: Less than 40% of the Total
Consolidated CSC Entities and the Asset Value Commencing January 1, 2006:
Unconsolidated CSC Entities Less than 30% of the Total Asset Value
--------------------------------------------------------------------------------------------------------------------
Individual Property secured Debt of In the aggregate outstanding at any
the Borrower, CSC or any Borrower time, not to exceed fifteen percent
Subsidiary which is recourse to the (15%) of the Total Asset Value
Borrower or CSC (excluding the construction loan
facility on the Camp Hill property
and the Obligations)
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The Pro Rata share of Investments in In the aggregate, not to exceed
Development Assets (valued at twenty five percent (25%) of Total
undepreciated Book Value) Asset Value
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The Pro Rata share of Investments in In the aggregate, not to exceed five
Land Assets which are valued at Book percent (5%) of Total Asset Value
Value
--------------------------------------------------------------------------------------------------------------------
The Pro Rata share of Investments in In the aggregate, not to exceed five
Non-Retail Assets percent (5%) of Total Asset Value
--------------------------------------------------------------------------------------------------------------------
Calculations of the Financial Covenants are set forth in the Closing
Compliance Certificate, or once delivered, the most recent Compliance
Certificate delivered by the Borrower to the Agent.
This request is submitted to Administrative Agent for the purpose of
inducing Lenders to make a Loan Advance and Borrower intends that Administrative
Agent and the Lenders shall rely upon the same being true, accurate and complete
in all material respects.
If all conditions precedent to Lenders' obligation to make a Loan
Advance are satisfied, please disburse the Loan Advance on ______________,
200__.
WITNESS the execution hereof as an instrument under seal as of the
_______ day of _____________, 200__.
CEDAR SHOPPING CENTERS PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Cedar Shopping Centers, Inc.,
its general partner
By: _________________________
Name: _________________________
Title: _________________________
AVAILABILITY CERTIFICATE
1. MAXIMUM LOAN AMOUNT
a. Established Loan Amount $___,000,000.00
b. Total Commitment $___,000,000.00
c. Availability (calculated below) $_________
lesser of (a), (b) and (c) $________
2. LOAN BALANCE
a. Outstanding Balance of Loan $_________
plus
b. L/C Exposure $_________
(a) plus (b) $________
3. AMOUNT OF LOAN AVAILABLE TO BE ADVANCED AND/OR L/C'S
AVAILABLE TO BE ISSUED
1 minus 2 $________
AVAILABILITY CALCULATION
a. Aggregate Borrowing Base Value* $__________
(calculated below)
Multiplied by 70% $__________
b. Implied Loan Amount $__________
(calculated below)
lesser of (a) or (b) $__________
*BORROWING BASE VALUE CALCULATION
(prepare for each Borrowing Base Property)
(a) If Stabilized Asset
(i) Adjusted Appraised Value $____________
(as determined by the most recent
Appraisal of such Borrowing Base Property)
(ii) Adjusted Capitalized Value** $_____________
(calculated below)
**Adjusted Capitalized Value Calculation (For Stabilized Asset)
Adjusted Net Operating Income for most recent
fiscal quarter, annualized $______________
capitalized at 8.75% $__________
(b) If Non-Stabilized Asset
(i) Adjusted Appraised Value $______________
(as determined by the most recent
Appraisal of such Borrowing Base Property)
(ii) Adjusted Capitalized Value $______________
(Undepreciated Book Value)
CALCULATION OF BORROWING BASE VALUE IF EVENT OF LOSS HAS OCCURRED
(i) Adjusted Capitalized Value $_________
(calculated in the manner set forth
above for Stabilized Asset, subject
to the limits of Borrowing Base Value,
or Non Stabilized Asset, as applicable)
Multiplied by 70% $_________
Implied Loan Amount Calculation
Principal amount which generates Implied Debt Service Coverage Ratio of 1.50 to
1.00, calculated in accordance with the worksheet which is to be annexed hereto.
EXHIBIT F
EXHIBIT G TO LOAN AGREEMENT
COMPLIANCE CERTIFICATE
TO: The Administrative Agent and Lenders party to the Loan Agreement Described
Below
This Compliance Certificate is furnished pursuant to that certain Loan
Agreement dated as of January 30, 2004 (as amended, the "Loan Agreement"), among
Cedar Shopping Centers Partnership, L.P. ("Borrower"), Bank of America, N.A., as
Administrative Agent and the Lenders identified therein. Unless otherwise
defined herein, capitalized terms used in this Compliance Certificate have the
meanings ascribed thereto in the Loan Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected/authorized ______________________ of Cedar
Shopping Centers, Inc., general partner of the Borrower.
2. I have reviewed the terms of the Loan Agreement and I have made, or
have caused to be made under my supervision, a review of the transactions and
conditions of the Borrower during the accounting period covered by the attached
financial statements.
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
an Event of Default or an event which, with notice or the passage of time or
both, would constitute an Event of Default during or at the end of the
accounting period covered by the attached financial statements or as of the date
of this Certificate, except as set forth below.
4. Schedule 1 attached hereto sets forth financial data and
computations at and for the period ending __________ evidencing the Borrower's
compliance with certain covenants of the Loan Agreement, except as set forth
below, all of which data and computations are true, complete and correct in all
material respects to my knowledge.
Described below are the exceptions, if any, to paragraphs 3 and 4,
listing the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
________________________________________________________________________________
________________________________________________________________________________
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
this ____ day of ____________, 200____.
CEDAR SHOPPING CENTERS PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Cedar Shopping Centers, Inc.,
its general partner
By: ___________________________
Name: ___________________________
Title: ___________________________
SCHEDULE 1 TO COMPLIANCE CERTIFICATE
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COVENANT REQUIREMENT ACTUAL
--------------------------------------------------------------------------------------------------------------------
Interest Expense Coverage Not less than 2.00:1
--------------------------------------------------------------------------------------------------------------------
Leverage Ratio Less than 70%
--------------------------------------------------------------------------------------------------------------------
Fixed Charge Ratio On or prior to December 31, 2005:
Not less than 1.35:1
Following December 31, 2005: Not less
than 1.50:1
--------------------------------------------------------------------------------------------------------------------
Borrower's Net Worth Not less than 85% of the Borrower's
Net Worth as of December 31, 2003,
plus 85% of cumulative net cash
proceeds, as set forth in the Loan
Agreement
--------------------------------------------------------------------------------------------------------------------
Occupancy Ratio for Borrowing Base Not less than 85% for the aggregate
Properties of all Borrowing Base Properties, and
not less than 80% for each individual
Borrowing Base Property
--------------------------------------------------------------------------------------------------------------------
Aggregate Pro Rata amount of the Prior to, and including, December 31,
Variable Rate Indebtedness of the 2005: Less than 40% of the Total
Consolidated CSC Entities and the Asset Value Commencing January 1, 2006:
Unconsolidated CSC Entities Less than 30% of the Total Asset Value
--------------------------------------------------------------------------------------------------------------------
Individual Property secured Debt of In the aggregate outstanding at any
the Borrower, CSC or any Borrower time, not to exceed fifteen percent
Subsidiary which is recourse to the (15%) of the Total Asset Value
Borrower or CSC (excluding the construction loan
facility on the Camp Hill property
and the Obligations)
--------------------------------------------------------------------------------------------------------------------
The Pro Rata share of Investments in In the aggregate, not to exceed
Development Assets (valued at twenty five percent (25%) of Total
undepreciated Book Value) Asset Value
--------------------------------------------------------------------------------------------------------------------
The Pro Rata share of Investments in In the aggregate, not to exceed five
Land Assets which are valued at Book percent (5%) of Total Asset Value
Value
--------------------------------------------------------------------------------------------------------------------
The Pro Rata share of Investments in In the aggregate, not to exceed five
Non-Retail Assets percent (5%) of Total Asset Value
--------------------------------------------------------------------------------------------------------------------
