MODIFICATION AGREEMENT
----------------------
THIS MODIFICATION AGREEMENT ("Modification") is effective as of December 6,
2002 (the "Modification Date"), by and between GROVE CITY FACTORY SHOPS
PARTNERSHIP, a Pennsylvania general partnership, having an address at c/o Prime
Retail, L.P., 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000
(referred to herein as "Property Owner" or sometimes "Maker"), and LASALLE BANK
NATIONAL ASSOCIATION, FORMERLY KNOWN AS LASALLE NATIONAL BANK, AS TRUSTEE FOR
THE HOLDERS OF ASSET SECURITIZATION CORPORATION, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 1996-MD VI, c/o CapMark Services, L.P., 000
Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx (referred to herein as
"Lender" or sometimes as "Payee".)
WITNESSETH:
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WHEREAS, Cross-collateralized Borrowers (as defined in the Mortgage)
executed and delivered to Nomura Asset Capital Corporation, a Delaware
corporation (the "Original Lender") that certain Promissory Note in the original
principal amount of THREE HUNDRED NINETY-ONE MILLION FIVE HUNDRED THOUSAND AND
NO/100 DOLLARS ($391,500,000.00) dated October 31, 1996 (the "Note"), which Note
and the indebtedness evidenced thereby or otherwise payable under the loan
documents executed in connection therewith (the "Indebtedness"), is secured by,
inter alia, (i) that certain Mortgage, Security Agreement, Assignment of Rents
and Fixture Filing dated as of October 31, 1996, executed by Property Owner, as
mortgagor to Original Lender, as mortgagee, and recorded on November 7, 1996 as
Instrument No. 00XX00000 in Book 0224, Page 0831 in the Recorder of Deeds Office
of Xxxxxx County, Pennsylvania (the "Recorder's Office") (the "Mortgage") and
(ii) those certain documents set forth on the attached Exhibit A which is
incorporated herein by reference (the Mortgage and documents set forth on
Exhibit A and all other documents evidencing, securing, guaranteeing,
indemnifying or governing the Indebtedness are hereinafter collectively referred
to as the "Loan Documents" and the loan evidenced thereby is hereinafter
referred to as the "Loan".)
WHEREAS, the Note is currently secured by mortgages on fifteen (15)
properties (the "Cross-collateralized Properties") owned by the
Cross-collateralized Borrowers and the Loan is cross-collateralized and
cross-defaulted with such mortgages. This Modification is being entered into
simultaneously with the defeasance of a portion of the Loan and as a result
thereof, thirteen (13) of the Cross-collateralized Properties shall remain as
security for the Loan.
WHEREAS, Lender and Maker are simultaneously entering into that certain
Amended and Restated Note dated of even date herewith (the "Amended and Restated
Note").
WHEREAS, Original Lender assigned, sold and transferred its interest in the
Loan and all Loan Documents to Lender pursuant to that certain Allonge to Note
and an Assignment of Mortgage, Security Agreement, Assignment of Rents and
Fixture Filing, dated as of December 16, 1996, and recorded on November 7, 1996
as Instrument No. 00XX00000 in Book 0230, Page 1146 in the Recorder of Deeds
Office of Xxxxxx County, Pennsylvania, and Lender is the current owner and
holder of the Loan and Loan Documents.
Page - (2)
WHEREAS, the above-referenced Loan is a part of a mortgage pool known as
Asset Securitization Corporation Commercial Mortgage Pass-Through Certificates,
Series 1996-MD VI, for which, pursuant to a Pooling and Servicing Agreement
dated December 17, 1996, LaSalle Bank National Association, formerly known as
LaSalle National Bank, is Trustee.
WHEREAS, Property Owner continues to be the owner of the real property and
improvements thereon (the "Property") as described on the attached Exhibit B and
more specifically described in and encumbered by the Mortgage and the other Loan
Documents.
WHEREAS, Borrower has requested that Lender agree to certain modifications
and amendments to the Mortgage and Lender has agreed to modify and amend the
terms and conditions of the Loan Documents as set forth herein.
AGREEMENT
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NOW, THEREFORE, for and in consideration of the matters described in the
foregoing recitals and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the undersigned hereby
represent, warrant, covenant and agree as follows:
1. Recitals. The recitals set forth above are incorporated herein.
2. Representations, Warranties and Covenants of Borrower.
(a) Maker hereby represents, warrants and covenants to Lender that: (i) the
Mortgage, as amended by this Modification, constitutes a valid first lien on the
Property, free and clear of all encumbrances and liens having priority over the
lien of the Mortgage, as amended by this Modification, except for the items set
forth in the title insurance policy insuring the lien of this Mortgage, as
amended by this Modification, as amended by the endorsement to such title policy
issued substantially of even date herewith; (ii) there are no defenses, set-offs
or rights of defense, set-off or counterclaim, whether legal, equitable or
otherwise, to the obligations evidenced by or set forth in the Loan Documents,
as modified hereby; (iii) except as set forth in Exhibit C to be approved by
Lender in its reasonable discretion, all provisions of the Loan Documents, as
modified hereby, are in full force and effect and are hereby ratified and
confirmed as true and complete in all material respects as of today's date; (iv)
after giving effect to the modifications set forth herein, no Event of Default
(as defined in the Mortgage) has occurred or is continuing under any of the Loan
Documents; (v) the modifications set forth herein and all transactions
contemplated by this Modification shall be completed in accordance with all
applicable law; (vi) this Modification and all other Loan Documents are each the
legal, valid and binding obligation of Maker, enforceable against Maker in
accordance with its terms, except as such enforcement may be stayed or limited
by bankruptcy laws, creditors rights laws and equitable principles and such
ratification and enforceability shall not be affected in any manner by Lender's
consent to this Modification; and (vii) there is no pending, or to the best of
Maker's knowledge, threatened condemnation proceedings, lawsuits, claims or
criminal proceedings against Property Owner or applicable to the Property which
could have a material adverse effect on the Property or Property Owner's ability
to perform its respective obligations under the Loan Documents.
Page - (3)
(b) Maker hereby ratifies, affirms and acknowledges the following covenants
and agreements: (i) to pay when and as due all sums due under the Note as
modified by the Amended and Restated Note and the other Loan Documents; and (ii)
to perform and discharge all obligations imposed under the Note as modified by
the Amended and Restated Note, the Mortgage as amended by this Modification, and
all other Loan Documents, at the time, in the manner and otherwise in all
respects as therein provided.
(c) Without limiting the generality of the foregoing, Maker hereby
represents, warrants and covenants to Lender that in addition to the Mortgage,
this Modification, the Amended and Restated Note, the documents referenced on
the attached Exhibit A are a complete and accurate list of all of the Loan
Documents with respect to the Property, and each are in full force and effect
and there is no Default or Event of Default existing thereunder by any party
thereto and no event which, with the passage of time or the giving of notice, or
both and the expiration of any grace or cure period, would constitute a Default
or Event of Default and such ratification and enforceability shall not be
affected in any manner by Lender's consent to this Modification.
(d) Without limiting the generality of the foregoing, Maker hereby
represents, warrants and covenants to Lender that the consent or approval of the
other partners of Property Owner or any other third party is either (i) not
required for the execution or delivery by Property Owner of this Modification or
any other document or instrument required to consummate this Modification, or
(ii) has been obtained.
(e) Without limiting the generality of the foregoing, Maker hereby
represents, warrants and covenants to Lender that the execution of this
Modification by Property Owner will not result in the breach or violation of the
terms of its organizational documents nor any agreement to which Property Owner
is a party.
(f) Maker hereby covenants and agrees to pay Lender an amendment fee in
connection with this Modification ("Amendment Fee") in the aggregate amount of
SEVEN HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($750,000.00) payable as
follows: (i) FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00) due and
payable on or before January 11, 2003; and (ii) TWO HUNDRED FIFTY THOUSAND AND
NO/100 DOLLARS ($250,000.00) due and payable on or before February 11, 2003;
provided, however, in no event shall Maker pay any portion of the Amendment Fee
prior to January 1, 2003. Maker's failure to pay such Amendment Fee on the dates
herein provided shall constitute a Default under the Mortgage, as hereby
amended.
(g) No representation or warranty of Maker made in this Modification
contains any untrue statement of material fact or omits to state a material fact
necessary in order to make such representations and warranties not misleading in
light of the circumstances under which they are made.
Page - (4)
(h) Maker understands and intends that Lender shall rely on the
representations, warranties, affirmations, qualifications and covenants
contained herein. None of the representations, warranties, covenants,
affirmations, qualifications or agreements contained herein shall limit any
representations, warranties, covenants, or obligations of Maker in any other
Loan Document.
3. Ratification. Nothing herein contained shall in any manner impair the
enforceability or validity of the Note as amended and modified by the Amended
and Restated Note, the Mortgage as modified by this Modification, the Loan
Documents or any other security for the Indebtedness held by Lender, or alter,
waive, annul or affect any provision, condition, or covenant therein or any
rights, powers or remedies thereunder, except as specifically provided in this
Modification. It is the intent of the parties hereto that the terms and
provisions of the Mortgage, as herein amended, shall continue in full force and
effect except as specifically modified hereby, and that such terms and
provisions, as so modified, are hereby ratified and confirmed. Nothing herein
contained is intended as, or shall be construed as, a novation or alteration of
the liens, security agreements, guarantees and assignments evidenced by the
Mortgage, as modified by this Modification or any other Loan Document, all of
which liens, security agreements, guarantees and assignments continue to reflect
and retain, without diminution or alteration, their original enforceability,
priority and rank. After the date hereof, references in the Note, the Mortgage
or the other Loan Documents to the "Mortgage" shall mean the Mortgage, as
modified by this Modification and by the Amended and Restated Note.
4. Modification of the Mortgage. The Mortgage is hereby amended and
modified, and Borrower and Lender hereby agree as follows:
(i) The following provisions are hereby added after the end of the second
sentence in Section 5.01 of the Mortgage:
On the Modification Date, the Cross-collateralized Borrowers have deposited
ONE MILLION TWO HUNDRED FIFTY THOUSAND AND NO/l00 DOLLARS ($1,250,000.00) into
the Cash Collateral Account. The Cross-collateralized Borrowers acknowledge and
agree that on February 11, 2003 they shall deposit an additional TWO HUNDRED
FIFTY THOUSAND AND NO/l00 DOLLARS ($250,000.00) into the Cash Collateral Account
and an additional FIVE HUNDRED THOUSAND AND NO/l00 DOLLARS ($500,000.00), or the
appropriate lesser amount, as determined by Lender, on the eleventh day of each
month thereafter for seven (7) consecutive months (with the last such payment
being on September 11, 2003), until such time as the aggregate amount in the
Debt Service Payment Sub-Account shall equal FIVE MILLION AND NO/l00 DOLLARS
($5,000,000.00) pursuant to the terms and conditions of this sentence, which
sums, promptly upon receipt, shall be disbursed to the Debt Service Payment
Sub-Account pursuant to the terms of this Section 5.01.
(ii) Section 15.02(a) of the Mortgage is hereby amended and restated in its
entirety as follows:
Page - (5)
If such prepayment or defeasance is a prepayment or defeasance in part, but not
in whole, Mortgagee shall have received on the date proposed for such prepayment
an amount (the "Release Price") equal to the greater of (a) the respective
release price as set forth on the attached Exhibit I which is incorporated
herein by reference or (b) 90% or l00%, as indicated for each respective
property on Exhibit I, of the Net Proceeds (as hereinafter defined) or Net
Refinancing Proceeds (as hereinafter defined), as applicable, of the respective
property. "Net Proceeds" shall mean the gross cash proceeds from the sale of all
or a portion of the Trust Property or equity interests therein, to the extent
such sale constitutes a "Transfer" under the Mortgage securing the Loan minus
the actual expenses of the sale (including, without limitation, brokerage fees,
actual costs, fees and expenses related to any defeasance of the applicable
portion of the Loan, transfer taxes, mortgage taxes, title insurance premiums,
recording fees and legal fees) which are paid to unaffiliated third parties and
are incurred by Mortgagor in connection therewith, which expenses of sale shall
in no event exceed 6% of the gross cash proceeds from the sale, or such other
amount as approved by Mortgagee in its reasonable discretion. "Net Refinancing
Proceeds" shall mean the gross cash proceeds from the refinancing of all or a
portion of the entire Loan, minus reasonable and customary expenses of such
refinancing which are paid either by Mortgagor or from the loan proceeds of the
refinancing and which are paid in cash to unaffiliated third parties and all
third party out-of-pocket costs incurred by Mortgagor in connection therewith,
which expenses of such refinancing shall in no event exceed 5% of the gross cash
proceeds from such refinancing of all or a portion of the entire Loan, as the
case may be, or such other amount as approved by Mortgagee in its reasonable
discretion.
(iii) The following Exhibit I is hereby added to the Mortgage:
EXHIBIT I
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Release Price
Release Price equals greater of amount shown below or 90% or 100%
respectively of net proceeds of sale or refinance
Cross-collateralized Properties Release Price Percentage
1. Prime Outlets at Florida City $ 1,757,500 90%
Dade County, Florida
2. Prime Outlets at Gainesville $ 6,700,000 100%
Xxxxx County, Texas
3. Prime Outlets at Darien $ 6,500,000 100%
XxXxxxxx County, Georgia
4. Prime Outlets at Huntley $ 8,926,250 90%
Xxxx County, Illinois
5. Prime Outlets at Gulfport $21,812,500 90%
Xxxxxxxx County, Mississippi
Page - (6)
6. Prime Outlets at Naples $ 8,500,000 100%
Xxxxxxx County, Florida
7. Prime Outlets at Ellenton $65,195,000 90%
Manatee County, Florida
8. Prime Outlets at Jeffersonville I $51,616,000 90%
Fayette County, Ohio
9. Prime Outlets at San Marcos I $58,350,000 90%
Xxxx County, Texas
10. Prime Outlets at Morrisville $10,000,000 100%
Wake County, North Carolina
11. Prime Outlets at Grove City $75,441,000 90%
Xxxxxx County, Pennsylvania
12. Prime Outlets at Odessa $ 6,000,000 100%
Lafayette County, Missouri
13. Prime Outlets at Lebanon $23,755,000 90%
Lebanon, Tennessee
5. Miscellaneous. The parties hereby further agree as follows:
(a) Further Assurances and Conditions. Maker agrees to sign, execute and
deliver and to do or make, upon the written request of Lender, any and all
agreements, instruments, papers, deeds, acts or things, as may be reasonably
required by Lender to effectuate the purpose of this Modification. Maker shall
have paid Lender's reasonable legal fees and costs, including the cost of any
title report update, in connection with reviewing and approving this
Modification.
(b) Completeness and Modification. This Modification, the Amended and
Restated Note and the other modification agreements entered simultaneously
between the Cross-collateralized Borrowers and Lender shall constitute the
entire agreement between the parties hereto and thereto with respect to the
transactions contemplated hereby and thereby and shall supersede all prior
discussions, understandings, agreements and negotiations between the parties
hereto. This Modification may be modified only by written instrument duly
executed by all of the parties hereto.
(c) Successors and Assigns. This Modification shall be binding on and inure
to the benefit of the parties hereto and their respective successors,
participants and assigns.
Page - (7)
(d) Governing Law. This Modification and all documents referred to herein
shall be governed by and construed and interpreted in accordance with the
Applicable Law provision set forth in Article XVIII of the Mortgage.
(e) No Partnership. This Modification does not and shall not be construed
to create a partnership, joint venture or any other relationship between the
parties hereto except the relationship as debtor and creditor specifically
established by the Loan Documents.
(f) Headings. Paragraph or other headings contained in this Modification
are for reference purposes only and are not intended to affect in any way the
meaning or interpretation of this Modification.
(g) Counterparts. This Modification may be executed in any number of
counterparts and each such duplicate original shall be deemed to be an original.
(h) Time of Essence. Time is of the essence with respect to this
Modification and of each and every term, covenant and condition herein.
(i) Definitions. All capitalized terms not defined herein shall have the
same meaning as set forth in the Mortgage or the documents referenced on the
attached Exhibit A, as the case may be.
(j) Lender's Acknowledgment. This Modification is being entered into
simultaneously with the defeasance of a portion of the Loan. Prime Retail
Defeasance I, L.L.C., a Delaware limited liability company (the "Defeasance
Borrower"), has assumed a Defeasance Promissory Note evidencing the partial
defeasance of the Loan. The Property Owner is executing, at the request of
Lender, the Maintenance Agreement and Guaranty of Non-Recourse Carve-out Matters
(the "Maintenance Agreement and Guaranty") pursuant to which the Property Owner
(i) agrees to cause the Defeasance Borrower to, or shall on behalf of the
Defeasance Borrower, among other things, comply with certain legal formalities
and maintain its existence in good standing and (ii) guarantees to the Payee
performance by the Defeasance Borrower of certain liabilities and obligations of
the Defeasance Borrower. Lender consents to Borrower's execution of the
Maintenance Agreement and Guaranty and agrees that such execution shall not
constitute a breach of the representations, warranties and covenants made by
Borrower in connection with the Loan, and specifically, but not limited to, the
representations, warranties and covenants set forth in Section 2.02(h) of the
Mortgage.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
Page - (8)
IN WITNESS WHEREOF, Property Owner and Lender each has executed and
delivered this Modification under seal as of the day and year first above
written.
WITNESSES: PROPERTY OWNER:
---------------
/S/ GROVE CITY FACTORY SHOPS PARTNERSHIP, a
------------------------------ Pennsylvania general partnership
Print name: Xxxx X. Xxxxxxxx
By: Prime Retail, L.P., a Delaware
limited partnership, its managing
general partner
/S/
------------------------------
Print name: Xxxx Xxxxx By: Prime Retail, Inc., a Maryland
corporation, its general partner
By: /S/ (SEAL)
---------------------------
Name: R. Xxxxxx Xxxxxx
Title: Executive Vice President - General
Counsel & Secretary
Page - (9)
WITNESSES: LENDER:
-------
/S/ LASALLE BANK NATIONAL ASSOCIATION,
------------------------------ FORMERLY KNOWN AS LASALLE NATIONAL BANK,
Print name: Xxx X. Xxxxxxxxx AS TRUSTEE FOR THE HOLDERS OF ASSET
SECURITIZATION CORPORATION, COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
1996-MD VI
By: GMAC Commercial Mortgage
Corporation, a California
corporation, Special Servicer
By: /S/ (SEAL)
--------------------------
Name: E. Xxxxxxx Xxxxxxxx III
Title: Vice President
Page - (10)
Borrower:
STATE OF MARYLAND )
) ss.:
CITY OF BALTIMORE )
On this 4th day of December, 2002, before me, the undersigned officer,
personally appeared R. Xxxxxx Xxxxxx, who acknowledged himself to be the EVP, GC
& Secretary of Prime Retail, Inc., a Maryland corporation, sole General Partner
of Prime Retail, L.P., a Delaware limited partnership, the Managing Partner of
Grove City Factory Shops Partnership, a Pennsylvania general partnership, and
that he as such EVP, GC & Secretary being authorized to do so, executed the
foregoing instrument for the purposes therein contained by signing the name of
the corporation, as sole General Partner of the limited partnership as the
Managing Partner of the general partnership, by himself as EVP, GC & Secretary.
In witness whereof, I hereunto set my hand and official seal.
/S/
-------------------------------------
Xxxx X. Xxxxxxx
Title of Officer
Xxxx X. Xxxxxxx
Notary Public State of Maryland
My Commission Expires December 13, 2005
Page - (11)
Lender:
STATE OF PENNSYLVANIA )
) ss.:
COUNTY OF XXXXXXXXXX )
I, Xxxxx Xxxx Xxxxxxxx, a Notary Public, do hereby certify
that E. Xxxxxxx Xxxxxxxx III, personally known to me to be the Vice President of
GMACCM, a corporation and personally known to me to be the same person whose
name is subscribed to the foregoing document, appeared before me this day in
person and acknowledged that as such he/she signed and delivered the said
document as his/her free and voluntary act and deed and the free and voluntary
act and deed of said entity, being authorized to do so, for the use and purposes
therein set forth. Given under my hand and notarial seal this 3rd day of
December, 2002.
/S/ (SEAL)
-----------------------------------
Xxxxx Xxxx Xxxxxxxx
Notary Public
My Commission Expires:
NOTARIAL XXXX
XXXXX XXXX XXXXXXXX, Notary Public
Horsham Twp., Xxxxxxxxxx County
My Commission Expires Jan. 26, 2004
