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FIRST MODIFICATION OF NOTES, OPEN-END FEE MORTGAGE, LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT AND FIXTURE FILING AND LOAN AGREEMENT

Lease Assignment Agreement

FIRST MODIFICATION OF NOTES, OPEN-END FEE MORTGAGE, LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT AND FIXTURE FILING AND LOAN AGREEMENT | Document Parties: CATALINA PARTNERS, LP | Glimcher Colonial Park Mall, Inc | GLIMCHER PROPERTIES LIMITED PARTNERSHIP | U S BANK NATIONAL ASSOCIATION You are currently viewing:
This Lease Assignment Agreement involves

CATALINA PARTNERS, LP | Glimcher Colonial Park Mall, Inc | GLIMCHER PROPERTIES LIMITED PARTNERSHIP | U S BANK NATIONAL ASSOCIATION

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Title: FIRST MODIFICATION OF NOTES, OPEN-END FEE MORTGAGE, LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT AND FIXTURE FILING AND LOAN AGREEMENT
Governing Law: Ohio     Date: 7/23/2010
Industry: Real Estate Operations     Sector: Services

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EXHIBIT 10.116

 

FIRST MODIFICATION OF NOTES, OPEN-END FEE MORTGAGE,

LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT

AND FIXTURE FILING AND LOAN AGREEMENT

 

 

THIS FIRST MODIFICATION OF NOTES, OPEN-END FEE MORTGAGE, LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT AND FIXTURE FILING AND LOAN AGREEMENT ("Modification"), dated as of the 30th day of April, 2010  (the "Effective Date") by and among U. S. BANK NATIONAL ASSOCIATION, a national banking association, having an office and place of business at 10 West Broad Street, 12 th Floor, Columbus, Ohio 43215 ("Lender"), CATALINA PARTNERS, L.P., a Delaware limited partnership, having an office and place of business at 180 East Broad Street, Columbus, Ohio 43215 ("Borrower"), and GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership, having an office and place of business at 180 East Broad Street, Columbus, Ohio 43215 ("Guarantor").

 

WITNESSETH:

 

WHEREAS, Lender and Borrower are parties to a certain Loan Agreement dated April 23, 2008 ("Loan Agreement") pursuant to which Lender agreed to loan to Borrower an amount not to exceed Forty-Two Million Two Hundred Fifty Thousand Dollars ($42,250,000.00) ("Loan");

 

WHEREAS, a portion of the Loan is evidenced by a certain Note dated April 23, 2008, in the original principal amount of Ten Million Dollars ($10,000,000.00) by Borrower to Lender (" First Note");

 

WHEREAS, a portion of the Loan is evidenced by a certain Note dated April 23, 2008, in the original principal amount of Five Million Dollars ($5,000,000.00) by Borrower to Lender ("Second Note");

 

WHEREAS, a portion of the Loan is evidenced by a certain Note dated April 23, 2008, in the original principal amount of Twenty-Seven Million Two Hundred Fifty Thousand Dollars ($27,250,000.00) by Borrower to Lender ("Third Note"; the First Note, Second Note and Third Note are hereinafter collectively referred to as the "Notes");

 

WHEREAS, the Note is secured by a certain Open-End Fee Mortgage, Leasehold Mortgage, Assignment of Rents and Security Agreement and Fixture Filling ("Mortgage") dated April 22, 2008 and recorded in the Office for the Recorder of Deeds in and for the County of Dauphin, Pennsylvania as Instrument Number 20080015133, from Borrower to Lender (the Loan Agreement, Notes, and Mortgage, together with all other instruments, affidavits, agreements, security agreements, financing statements and documents executed and delivered in connection therewith, are hereinafter sometimes referred to collectively as "Loan Documents");

 

 

 


 

 

WHEREAS, Borrower's obligations to Lender are guaranteed, jointly and severally, by Guarantor pursuant to a certain Unconditional Guaranty of Payment and Performance dated April 22, 2008 ("Guaranty");

 

WHEREAS, Borrower, Guarantor and Lender desire to modify certain terms of the Loan; and

 

WHEREAS, all capitalized terms used herein and not specifically defined shall have the meaning set forth in the Loan Documents and the GPLP Revolving Credit Facility, as amended by that certain Comprehensive Amendment to Amended and Restated Credit Agreement dated as of March 4, 2010.

 

NOW, THEREFORE, in consideration of the foregoing promises and the covenants contained herein, the parties hereto agree as follows:

 

1.   Liability of Borrower .  Borrower hereby ratifies and reconfirms Borrower's obligations and all liability to Lender under the terms and conditions of the Loan Documents, and acknowledges that Borrower has no defenses to or rights of setoff against Borrower's obligations and all liability to Lender thereunder.  Borrower hereby further acknowledges that Lender has performed all of Lender's obligations under the Loan Documents.  Borrower hereby further acknowledges and agrees that the principal amount outstanding under the First Note as of  the date hereof is Twenty-Seven Million Two Hundred Fifty Dollars ($27,250,000.00).  Borrower hereby further acknowledges and agrees that the principal amount outstanding under the Second Note as of the date hereof is Ten Million Dollars ($10,000,000.00).  Borrower hereby further acknowledges and agrees that the principal amount outstanding under the Third Note as of the date hereof is Five Million Dollars ($5,000,000.00).

 

2.   Extension of Term .  The Loan Documents are hereby modified to provide that the Stated Maturity Date of each of the Notes is hereby extended to April 23, 2012 ("First Extended Maturity Date").  All principal and other sums payable to Lender thereunder shall be due and payable on the First Extended Maturity Date, unless extended by Borrower pursuant to the terms and conditions of Section 3 below.  During the extension period, interest shall be due and payable monthly at the rate and upon the terms provided for in the Notes, as modified herein.

 

3.   Option for Extension .  Borrower may elect to extend the First Extended Maturity Date ("Extension Option") of each of the Notes from the First Extended Maturity Date to April 23, 2013 (the "Second Extended Maturity Date"), by giving Lender written notice of such election sixty (60) days prior to, and not later than the First Extended Maturity Date provided, with respect to such extension, all of the following have been simultaneously satisfied, as to each of the Notes that remains outstanding, as reasonably determined by Lender:   (a)  there shall not, at the time of the exercise of such option to extend, exist any uncured Event of Default or any event or state of facts that would, after notice or the passage of time or both, constitute an Event of Default (as defined in the Loan Agreement); (b) there has been no material adverse change in the cash flow or financial condition of Borrower or any Guarantor; (c) unless previously paid in full, each of the Notes is being extended simultaneously; (d) Lender has received an appraisal satisfactory to Lender, in Lender's sole discretion, (at Borrower's sole cost and expense) evidencing a loan-to-value ratio (using the aggregate principal balance of all of the Notes) of not greater than sixty-five (65%) percent (in the event such "as is" value is not adequate to meet the required loan-to-value percentage, the Borrower may pay down the outstanding principal balance of one or more of the Notes such that said loan-to-value percentage may be met, subject to the payment of unwinding costs as described in Section 4.1 of each of the Notes); and (e) Borrower has paid to Lender, at the time of the giving of such notice, an extension fee equal to one-eighth of one percent (0.25%) of the sum of the then unrepaid aggregate principal amount of each of the Notes.

 

 

2


 

 

4.   Modification of the Notes .  Effective as of the Effective Date, the first sentence in the definition of the "Adjusted One Month LIBOR Rate" in each of the Notes will be deemed deleted in its entirety and replaced with the following (prior to the Effective Date, the current definition of Adjusted One Month LIBOR Rate shall remain in effect):

 

"Adjusted One Month LIBOR Rate" shall mean the interest on eachadvance hereunder shall accrue at an annual rate equal to 3.00% plus the one-month   LIBOR rate quoted by U.S. Bank from Reuters Screen LIBOR01 Page or any successor   thereto, which shall be that one-month LIBOR rate in effect two New York Banking Days prior to the Reprice Date, adjusted for any reserve requirement and any subsequent costs arising from a change in government regulation, and such rate to be reset monthly on each Reprice Date.

 

Effective as of the Effective Date, the definition of Elected Rate shall mean the Adjusted One Month LIBOR Rate.  Effective as of the Effective Date, the only rate available to Borrower shall be the Adjusted One Month LIBOR Rate and the Default Rate (if applicable).

 

5.   Modification of Loan Agreement .  Commencing on the Effective Date the following definitions in Section 1.01 of the Loan Agreement are hereby deleted in their entirety and replaced with the following:

 

" Debt Service Coverage Ratio " shall mean the ratio of (a) the annualized Net   Operating Income from the Premises to (b) the Annual Debt Service.  Such Debt Service   Coverage Ratio will be measured and tested as of June 30, 2008 and every three (3)   months thereafter as calculated on a rolling annual basis until the First Extended Maturity Date, or the Second Extended Maturity Date, if applicable. Borrower shall provide U.S. Bank with a compliance certificate detailing the covenant calculation and its compliance within thirty (30) days subsequent to each calendar quarter end.

 

" GPLP Revolving Credit Facility " shall mean that certain Four Hundred Sevent


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