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Fifth Amendment to Revolving Credit Loan Agreement
("Fourth Amendment") by and among Xxxx Centers Limited
Partnership ("Borrower"), Xxxx Centers Trust ("MCT") and
Mellon Bank, N.A. ("Lender")
Ladies and Gentlemen:
Borrower, MCT and Lender are parties to a Revolving Credit
Loan Agreement dated October 5, 1994, amended by a First
Amendment to Revolving Credit Loan Agreement dated November 15,
1995 (the "First Amendment"); a Second Amendment to Revolving
Credit Loan Agreement dated February 29, 1996 (the "Second
Amendment"); a Third Amendment to Revolving Credit Loan Agreement
dated October 3, 1996 (the "Third Amendment") and a Fourth
Amendment to Revolving Credit Loan Agreement dated August 7, 1997
(the "Fourth Amendment"). The Revolving Credit Loan Agreement,
as amended by the First Amendment, Second Amendment, Third
Amendment and Fourth Amendment, shall hereinafter be referred to
as the "Loan Agreement". Capitalized terms used in this
Agreement without definition shall have the same meanings
ascribed to those terms in the Loan Agreement.
Borrower and MCT have requested Lender to agree to modify
certain covenants in the Loan Agreement and Lender has agreed to
do so on the terms and conditions hereinafter set forth. In
consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which is hereby
mutually acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Amendments
(a) Commitment Termination Date. Section 1.1 of the
Loan Agreement is amended so that the definition of "Commitment
Termination Date" is deleted and the following is substituted
therefor: "Commitment Termination Date" means July 2, 1998.
(b) Repayment. Nothwithstanding anything in the
Loan Agreement to the contrary, Borrower shall make monthly
payments to the Lender in accordance with the Loan Agreement
equal to the greater of (a) $50,000 together with interest
thereon as provided in the Loan Agreement or (b) the monthly
Operating Income.
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(c) Fees. In addition to any other fees due to
Lender under the Loan Documents, Borrower shall pay (a) to
Lender, in consideration of the amendments provided herein, the
sum of Six Thousand Six Hundred Eighty Five Dollars ($6,685), and
(b) to Lender's counsel, Drinker Xxxxxx & Xxxxx LLP, for services
previously rendered in connection with prior modifications to the
Loan Agreement, the sum of One Thousand One Hundred Twenty Seven
and 40/100 Dollars ($1,127.40).
2. Representations and Warranties. To induce Lender to
amend the Loan Agreement as provided herein, Borrower and MCT
represent and warrant to Lender as follows:
(a) Borrower and MCT have full power, authority and
legal right to execute and deliver this Amendment, and this Fifth
Amendment constitutes the valid and binding obligation of
Borrower and MCT, enforceable against them in accordance with its
terms.
(b) Neither MCT nor Borrower has any charge, claim,
demand, plea or setoff upon, for or against the Loan Agreement or
any of the Loan Documents. The outstanding principal balance of
the Revolving Credit as of the date hereof is $2,580,753.44, and
such sum remains due and payable in accordance with the terms and
provisions of the Loan Agreement and other Loan Documents, as
modified by this Fifth Amendment.
(c) No Event of Default exists under the Loan
Agreement or any other Loan Document and there is no Unmatured
Event of Default under the Loan Agreement or any other Loan
Document.
(d) The execution, delivery and performance of this
Amendment has been duly authorized by all requisite partnership
action or the part of Borrower and MCT, and will not violate the
partnership documents of Borrower or MCT or any provision of any
law or any order of any tribunal, and will not conflict with,
result in a breach of or constitute a default under any mortgage,
security agreement, loan or other credit agreement, or any other
agreement or instrument to which Borrower or MCT is a party, or
result in the imposition of any lien upon the assets of Borrower
or MCT except as contemplated by this Fifth Amendment.
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3. Effectiveness of Loan Documents. Except as
specifically amended by this Fifth Amendment, the Loan Agreement
and the other Loan Documents remain unmodified and in full force
and effect. References in any of the Loan Documents to the Loan
Agreement shall hereafter be deemed to mean and refer to the Loan
Agreement as amended by this Fifth Amendment.
4. Reaffirmation of Guaranty. MCT acknowledges that it
is unconditionally liable and legally and validly indebted to
Lender in accordance with the terms of the Guaranty, and such
indebtedness is not subject to any defense, counterclaim or
offset. MCT consents to the delivery of this Fifth Amendment and
the modifications made herein, and affirms that the Guaranty is
in full force and effect and includes, without limitation, the
indebtedness, liabilities and obligations arising under or in any
way connected with the Loan Agreement and this Fifth Amendment,
whether now existing or hereafter arising including, without
limitation, principal, interest, costs and expenses of
collection.
5. Miscellaneous
(a) This Fifth Amendment constitutes the entire
understanding among Borrower, MCT and Lender concerning the
modification of the Loan Agreement. All prior and
contemporaneous negotiations and understandings are merged in
this Fifth Amendment.
(b) The captions preceding the sections of this Fifth
Amendment are for convenience of reference only. They are not a
part of this Fifth Amendment and shall not be considered in
construing its meaning or effect.
(c) Borrower and MCT shall pay the attorneys' fees and
costs incurred by Lender in connection with the modification of
the Loan Agreement evidenced by this Fifth Amendment.
(d) This Fifth Amendment may be executed in any number
of counterparts, each of which shall be an original, and such
counterparts together shall constitute one and the same
instrument. The parties hereto agree that a facsimile
transmission of an executed counterpart of this Fifth Amendment
shall have the same binding effect upon the signatory as an
executed and delivered original hereof. The parties hereto
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further agree, for confirmatory purposes only, to exchange copies
of executed counterpart originals promptly after the aforesaid
facsimile transmission so that each party may have one fully
executed original hereof.
(e) This Fifth Amendment shall be construed in
accordance with the laws of the Commonwealth of Pennsylvania and
shall be binding upon the parties hereto and their respective
successors and assigns.
IN WITNESS WHEREOF the parties hereto have caused this Fifth
Amendment to be duly executed the day and year first above
written.
Borrowers:
XXXX CENTERS LIMITED PARTNERSHIP,
a Delaware limited partnership
By: XXXX CENTERS TRUST, a Maryland
business trust, its general partner
By: /s/ Xxxxxx Xxxx
Xxxxxx Xxxx, Xx VP & CFO
XXXX CENTERS TRUST, a Maryland
business trust
By: /s/ Xxxxxx Xxxx
Xxxxxx Xxxx, Xx VP & CFO
Lender:
MELLON BANK, N.A., a national
banking association
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx, Xx VP
