THIRD AMENDMENT TO LOAN AGREEMENT
This THIRD AMENDMENT TO LOAN AGREEMENT (hereinafter, the "Third
Amendment") is dated as of January 28, 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 Xxxxxxx Xxxxxx, 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, a lending institution having an
address at 0000 Xxxxxxxx Xxxx 194-0245, Xxxxx 000, Xxxxxxxx Xxxxxxx,
Xxxxxxxxxxxx 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, Fleet National Bank, as the original administrative agent,
Fleet National Bank, Commerzbank AG New York Branch, PB Capital Corporation,
Manufacturers and Traders Trust Company, Sovereign Bank, Xxxxxxx Xxxxx Bank, FSB
and Citizens Bank, as the original 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, and
as further amended by that certain Second Amendment to Loan Agreement dated as
of November 2, 2004 (hereinafter, collectively, the "Loan Agreement"), and those
certain promissory notes dated as of January 30, 2004 executed by the Borrower
in favor of the Original Lenders in the original aggregate principal amount of
$100,000,000.00 (hereinafter, individually and collectively, the "Note");
WHEREAS, pursuant to Section 13.1.10 of the Loan Agreement, Fleet
National Bank has resigned from the position of the "Administrative Agent" under
the Loan Arrangement, and the Administrative Agent has accepted the position of
the successor "Administrative Agent" under the Loan Arrangement;
WHEREAS, pursuant to the terms and conditions of that certain Assignment
and Acceptance Agreement dated as of January 28, 2005 (hereinafter, the
"Assignment Agreement"), by and between Fleet National Bank, as "Assignor", and
the Administrative Agent, as "Assignee", Fleet National Bank has assigned all of
its right, title and interest as a "Lender"
under the Loan Arrangement including, without limitation, all of its Commitment,
to the Administrative Agent;
WHEREAS, the Lenders and the Borrower have agreed to consent to the (i)
resignation by Fleet National Bank from the position of the "Administrative
Agent" under the Loan Arrangement, and the acceptance by the Administrative
Agent of the position of the successor "Administrative Agent" under the Loan
Arrangement, and (ii) terms and conditions of the Assignment Agreement and the
assignment of interests effected thereby;
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 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. The Lenders and the Borrower hereby (i) consent to the
resignation by Fleet National Bank from the position of the
"Administrative Agent" under the Loan Arrangement, and the
acceptance by the Administrative Agent of the position of the
successor "Administrative Agent" under the Loan Arrangement, and
(ii) acknowledge and agree to the terms and conditions of the
Assignment Agreement, and consent to the assignment by Fleet
National Bank of all of its right, title and interest as a
"Lender" under the Loan Arrangement including, without
limitation, all of its Commitment, to the Administrative Agent.
2. All references in the Loan Agreement to "Fleet National Bank"
and "Fleet National Bank, a national banking association with a
place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000" are hereby deleted and shall be replaced with "Bank of
America, N.A." and "Bank of America, N.A., a national banking
association with a place of business at IL1-231-10-35, Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000", respectively.
3. Section 12.1 of the Loan Agreement is hereby amended by deleting
the phrase "FleetBoston Financial Corporation" and replacing the
same with "Bank of America Corporation".
4. Section 12.2 of the Loan Agreement is hereby amended by deleting
all references to the phrase "F1eetBoston Financial Corporation"
and replacing the same with "Bank of America Corporation".
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5. Section 15.1 of the Loan Agreement is hereby amended by deleting
the following text:
"Fleet National Bank
c/o Bank of America
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
FAX Number: (000) 000-0000"
and replacing the same with the following:
"Bank of America, N.A.
NC1-007-14-24
Bank of America Corporate Center
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxx
FAX No.: (000) 000-0000
And
Bank of America, N.A.
IL1-231-10-35
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
FAX Number: (000) 000-0000"
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 January 28, 2005, One
Hundred Forty Million Dollars ($140,000,000.00)."
7. The definition of the term "Note" is hereby deleted in its
entirety and shall be replaced with the following:
"Note shall mean, collectively, the Amended and Restated
Promissory Notes dated January 28, 2005, payable to each Lender
in the aggregate original principal amount of the Established
Loan Amount."
8. 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.
9. Exhibit I to the Loan Agreement is hereby deleted in its
entirety and shall be replaced with the Exhibit I attached
hereto as Exhibit B.
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10. Exhibit J to the Loan Agreement is hereby deleted in its
entirety and shall be replaced with the Exhibit J attached
hereto as Exhibit C.
11. Schedule 6.14.2(i) to the Loan Agreement is hereby deleted in
its entirety and shall be replaced with the Schedule 6.14.2(i)
attached hereto as Exhibit D.
12. 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 Third
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 Third Amendment.
13. Any determination that any provision of this Third 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 Third Amendment.
14. This Third 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 Third
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.
15. The Loan Agreement, as amended by this Third 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.
16. 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.
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IN WITNESS WHEREOF, this Third 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/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
COMMERZBANK AG NEW YORK BRANCH
By: /s/ Xxxxx Xxxxx
-----------------------
Name: Xxxxx Xxxxx
Title: Assistant Treasurer
By: /s/ Xxxxxxxxx Xxxxx
-----------------------
Name: Xxxxxxxxx Xxxxx
Title: Vice President
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PB CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxxxx
----------------- ------------------------
Name: Xxxxx Xxxxxx Xxxxxxx X. Xxxxxxxx
Title: Vice President Associate
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Vice President
SOVEREIGN BANK
By: /s/ T. Xxxxxxx Xxxxxxx
--------------------------
Name: T. Xxxxxxx Xxxxxxx
Title: Senior Vice President
XXXXXXX XXXXX BANK, FSB
By: /s/ Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
CITIZENS BANK
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President
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