Ex-10.46
FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT ("Amendment") is made as of January
11, 2002 ("First Amendment Date") by and between FRIT PRT LENDING LLC, a
Delaware limited liability company ("Lender"), PRIME RETAIL, L.P., a Delaware
limited partnership, having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Borrower"), OUTLET VILLAGE OF HAGERSTOWN LIMITED
PARTNERSHIP, a Delaware limited partnership, having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Hagerstown LP") and PRIME
HAGERSTOWN LAND, L.L.C., a Delaware limited liability company, having an office
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Hagerstown
Land").
W I T N E S S E T H:
WHEREAS, Lender and Borrower have entered into that certain Loan Agreement,
dated as of December 22, 2000 (the "Original Loan Agreement", and as amended by
this Amendment, the "Loan Agreement"), providing for a loan to Borrower in the
original amount of $90,000,000.00 (the "Loan");
WHEREAS, Borrower has requested that Lender release certain collateral, as
more particularly described herein, and to terminate all of the Hagerstown LP
Obligations (as hereinafter defined) under the Loan Documents;
WHEREAS, Lender has agreed to release such collateral and terminate the
obligations of Hagerstown LP under the Loan Documents, in accordance with and
subject to satisfaction of the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto amend the Loan Agreement, and covenant and agree,
as follows:
1. Defined Terms. Terms used herein and not defined herein shall have the
meanings provided therefor in the Original Loan Agreement. In addition,
references in this Amendment to the "Hagerstown Escrow Funds" shall mean and
refer to the funds in the "Escrow Account" and the "Project Account" as defined
and referred to in that certain Modification Agreement dated as of January 11,
2002, by and among Mercantile-Safe Deposit and Trust Company ("Merc"), Prime
Retail Finance VI, L.L.C. ("Finance VI"), Hagerstown LP, Prime Retail, L.P.,
Hagerstown Outlets, L.L.C., Hagerstown Land and Hagerstown Outlets Subsidiary,
L.L.C.
2. Hagerstown Collateral Release. Effective as of the date hereof, Lender
agrees: (i) to release and hereby releases the pledge of partnership interests
in Hagerstown LP made by Borrower and Prime Retail, Inc. pursuant to those
certain Partnership and Membership Pledge and Security Agreements executed by
Borrower and Prime Retail, Inc., respectively, and each dated December 22, 2000;
(ii) to release and hereby releases the pledge of all of the membership
interests in Finance VI made by Hagerstown LP pursuant to that certain
Membership Interest Pledge and Security Agreement dated December 22, 2000; (iii)
to release from the Hagerstown Third Mortgage all real property except for the
three outparcels which are being conveyed from Hagerstown LP to Hagerstown Land
as of the date hereof; and (iv) to file of record such financing statements and
other documents as may be required to reflect the foregoing releases, amendments
and terminations. Lender, Hagerstown LP and Borrower agree that the Hagerstown
Escrow Funds shall be disbursed to Lender and treated as additional Asset
Disposition Net Proceeds under the Loan Agreement, applied to pay down the Loan
and the Additional Fee associated therewith, and Lender, Hagerstown LP and
Borrower shall and hereby do direct Merc to transfer such funds accordingly:
3. Termination of Hagerstown LP Obligations. Effective as of the date
hereof, Hagerstown LP shall have no further obligations under any of the Loan
Documents, including, without limitation, those specified on Exhibit A attached
hereto. Notwithstanding the foregoing release of Hagerstown LP, it is expressly
understood and agreed that the obligations of all parties to the Loan Documents
other than Hagerstown LP shall remain in full force and respect.
4. BRWH Pledge. Borrower hereby agrees to use all reasonable efforts to
obtain, no later than sixty days from the date hereof, the consent of the
following parties in order to permit the pledge to Lender of all of the rights
to operating, non-operating and other distributions as and when made arising out
of the joint venture interests held by BRWH, L.L.C. in Triple Outlet World Joint
Venture, a Florida Joint Venture ("BRWH Pledge"), but not any other voting,
consent or (unless otherwise approved by the other joint venterer in Triple
Outlet World Joint Venture) other rights, and upon obtaining such consent to
grant to Lender the BRWH Pledge in Lender's form as further security for the
Loan: (i) the holder(s) of the mortgage loan(s) made to Birch Run Outlets II,
L.L.C. on or about August 16, 2001; and (ii) the holder(s) of the mortgage
loan(s) made to Williamsburg Outlets, L.L.C. (as evidenced by the deed of trust
most recently amended on or about October 19, 2001). Borrower hereby agrees to
use all reasonable efforts to obtain, no later than sixty days from the date
hereof, the consent of the holder(s) of the mortgage loan(s) made to Birch Run
Outlets II, L.L.C. on or about August 16, 2001 to the pledge of the 99%
non-managing membership interest held by the Borrower in BRWH, L.L.C (the "BRWH
Membership Pledge"), and upon obtaining such consent to grant to Lender the BRWH
Membership Pledge in Lender's form as further security for the Loan. Borrower
hereby represents and warrants to Lender that no other consents, excepting those
previously obtained or obtained simultaneously herewith, are required for the
BRWH Pledge, the BRWH Membership Pledge or the enforcement thereof.
5. Joinder and Assumption. Hagerstown Land shall be an additional
Subsidiary Guarantor, Expanded Property Owner and Loan Party for all purposes
under the Loan Agreement and the other Loan Documents. Hagerstown Land hereby
absolutely and unconditionally (i) joins as and becomes a party to the Guaranty
and the Loan Agreement, becoming a party to the Guaranty and the Loan Agreement
as an additional Guarantor thereunder, (ii) assumes, as the joint and several
obligation of Hagerstown Land and each other Guarantor signatory thereto, all of
the obligations, liabilities and indemnities of each Guarantor under the
Guaranty and the Loan Agreement, and (iii) covenants and agrees to be bound by
and adhere to all of the terms, representations, warranties, covenants,
agreements and conditions contained in the Guaranty and, with respect to each
Guarantor, under the Loan Agreement. Hagerstown Land further hereby absolutely
and unconditionally (a) joins as and becomes a party to the Environmental
Indemnity, becoming a party to the Environmental Indemnity as an additional
Indemnitor (as defined in the Environmental Indemnity) thereunder, (b) assumes,
as the joint and several obligation of Hagerstown Land and each other Indemnitor
signatory thereto, all of the obligations, liabilities and indemnities of each
Indemnitor under the Environmental Indemnity, and (c) covenants and agrees to be
bound by and adhere to all of the terms, representations, warranties, covenants,
agreements and conditions contained in the Environmental Indemnity. Hagerstown
Land further hereby absolutely and unconditionally (1) joins as and becomes a
party to the Omnibus Cash Flow Pledge Agreement, becoming a party to the Omnibus
Cash Flow Pledge Agreement as an additional Assignor (as defined in the Omnibus
Cash Flow Pledge Agreement) thereunder, (2) assumes, as the joint and several
obligation of Hagerstown Land and each other Assignor signatory thereto, all of
the obligations, liabilities and indemnities of each Assignor under the Omnibus
Cash Flow Pledge Agreement, and (3) covenants and agrees to be bound by and
adhere to all of the terms, representations, warranties, covenants, agreements
and conditions contained in the Omnibus Cash Flow Pledge Agreement. Hagerstown
Land further hereby absolutely and unconditionally (X) joins as and becomes a
party to the Omnibus Negative Pledge Agreement, becoming a party to the Omnibus
Negative Pledge Agreement as an additional Negative Pledgor (as defined in the
Omnibus Negative Pledge Agreement) thereunder, (Y) assumes, as the joint and
several obligation of Hagerstown Land and each other Negative Pledgor signatory
thereto, all of the obligations, liabilities and indemnities of each Negative
Pledgor under the Omnibus Negative Pledge Agreement, and (Z) covenants and
agrees to be bound by and adhere to all of the terms, representations,
warranties, covenants, agreements and conditions contained in the Omnibus
Negative Pledge Agreement. Hagerstown Land hereby represents and warrants that
each of the representations and warranties contained in the Loan Agreement,
Guaranty, Environmental Indemnity, Omnibus Cash Flow Pledge Agreement and
Omnibus Negative Pledge Agreement (collectively, the "Joinder Loan Documents")
are true and correct as to Hagerstown Land. Nothing contained herein is intended
to or shall limit, impair, terminate or revoke the obligations of any other
party to the Joinder Loan Documents (other than with respect to Hagerstown LP as
set forth above), and such obligations shall continue in full force and effect
in accordance with the terms and provisions of the Joinder Loan Documents.
6. Loan Documents. This Amendment and all of the documents executed in
connection herewith shall constitute Loan Documents.
7. Ratification. All of the representations and warranties set forth in the
Loan Documents are true and correct as of the date hereof as if made on the date
hereof. The Loan Agreement (as amended hereby) and the other Loan Documents are
hereby ratified and remain in full force and effect.
8. Execution in Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
9. Governing Law. This Amendment shall be governed by the laws of the State
of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers, thereunto duly
authorized, as of the date first above written.
LENDER:
FRIT PRT LENDING LLC,
a Delaware limited liability company
By: ____________________________________________
Name: __________________________________________
Title: Authorized Signatory
The undersigned Assignee and Co-Lender hereby consents to and authorizes the
execution and delivery of the foregoing Amendment and the transactions
referenced therein.
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,
a Delaware corporation
By: ____________________________________________
Name: __________________________________________
Title: Authorized Signatory
BORROWER:
PRIME RETAIL, L.P.,
a Delaware limited partnership
By: PRIME RETAIL, INC.,
its general partner
By: ____________________________________________
Name:
Title:
HAGERSTOWN LP:
OUTLET VILLAGE OF HAGERSTOWN LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Triple Outlet World Joint Venture,
its sole member,
By: BRWH, L.L.C., venturer
By: PRIME RETAIL, L.P.,
managing member
By: Prime Retail, Inc.,
general partner
By: ____________________________________________
Name:
Title:
HAGERSTOWN LAND:
PRIME HAGERSTOWN LAND, L.L.C.,
a Delaware limited liability company
By: PRIME RETAIL, L.P.,
a Delaware limited partnership,
its sole member
By: PRIME RETAIL, INC.,
a Maryland corporation,
its general partner
By: ____________________________________________
Name:
Title:
CONSENT OF GUARANTOR
The undersigned, each being a Guarantor (as defined in the Loan Agreement
referred to in the foregoing Amendment) and party to certain other Loan
Documents (as defined in the Loan Agreement referred to in the foregoing
Amendment) do hereby consent to the foregoing Amendment, and ratify and affirm
that the Guaranty and such other Loan Documents as have been heretofore executed
by each of the undersigned remains in full force and effect for the benefit of
Lender under the Loan Agreement, as amended by the foregoing Amendment.
IN WITNESS WHEREOF, the undersigned have each executed and delivered this
Consent of Guarantor effective as of the date of the foregoing Amendment.
GUARANTORS:
PRIME RETAIL, INC.,
a Maryland corporation
By: ____________________________________________
Name:
Title:
PRIME RETAIL CAPITAL I, L.L.C.,
a Delaware limited liability company
PRIME RETAIL, L.P.,
a Delaware limited partnership,
its managing member
By: PRIME RETAIL INC.,
a Maryland corporation,
its general partner
By: ____________________________________________
Name:
Title:
PRIME BELLPORT LAND, L.L.C.,
a Delaware limited liability company
By: PRIME RETAIL, L.P.,
a Delaware limited partnership,
its managing member
By: PRIME RETAIL INC.,
a Maryland corporation,
its general partner
By: ____________________________________________
Name:
Title:
PRIME WAREHOUSE ROW LIMITED PARTNERSHIP,
an Illinois limited partnership
By: PRIME RETAIL, L.P.,
a Delaware limited partnership,
its general partner
By: PRIME RETAIL, INC.,
a Maryland corporation,
its general partner
By: ____________________________________________
Name:
Title:
SUN COAST FACTORY SHOPS LIMITED PARTNERSHIP,
a Delaware limited partnership
By: PRIME RETAIL, L.P.,
a Delaware limited partnership,
its general partner
By: PRIME RETAIL, INC.,
a Maryland corporation,
its general partner
By: ____________________________________________
Name:
Title:
PRIME OUTLETS AT SAN ▇▇▇▇▇▇ ▇▇ LIMITED
PARTNERSHIP,
a Delaware limited partnership
By: PRIME RETAIL, L.P.,
a Delaware limited partnership,
its general partner
By: PRIME RETAIL, INC.,
a Maryland corporation,
its general partner
By: ____________________________________________
Name:
Title:
CHESAPEAKE DEVELOPMENT LIMITED PARTNERSHIP,
a Delaware limited partnership
By: PRIME RETAIL, L.P.,
a Delaware limited partnership,
its general partner
By: PRIME RETAIL, INC.,
a Maryland corporation,
its general partner
By: ____________________________________________
Name:
Title:
EXHIBIT A
1. Loan Agreement;
2. Omnibus Cash Flow Pledge Agreement;
3. Omnibus Negative Pledge Agreement;
4. Environmental Indemnity Agreement; and
5. Guaranty.
All of the above-referenced documents are each dated as of December 22, 2000.