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SECOND AMENDED AND RESTATED
ASSUMPTION, EXTENSION AND LOAN AGREEMENT
This Agreement (as from time to time amended and in effect,
the Agreement ) is made as of April 1, 1998 by and among Fleet
National Bank, a national banking association, with a place of
business at 00 Xxxxx Xxxxxx, Xxxxxx Xxxxxxxxxxxxx (the Lender ),
Xxxx Centers Limited Partnership, a Delaware limited partnership,
with a place of business at 000 Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxxx 00000 (the Borrower ), and Xxxx Centers Trust, a
Maryland real estate investment trust, with a place of business
at 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxx 00000 (the REIT ).
1. Definitions. Certain terms are used in this Agreement
as specifically defined herein. These definitions are set forth
or referred to in Section 12. hereof.
2. Recitals; Reference to Agreements, Instruments, Etc.
Xxxxxx X. Xxxxxxxxx obtained certain loans from Bank of New
England, N.A. ( BNE ) which are now held by the Lender as
assignee of Fleet Bank of Massachusetts, N.A. ( Fleet-Mass ),
which was the assignee of the Federal Deposit Insurance
Corporation (in its corporate and any receivership or other
capacity, the FDIC ) as receiver of New Bank of New England,
N.A. ( NBNE ), as assignee of the FDIC as receiver of BNE. Such
loans are evidenced, secured and otherwise affected by the
Existing Loan Documents as amended and in effect on the date
hereof and are referred to herein collectively as the Existing
Loan .
2.1. Existing Loan Documents. The Borrower, the REIT, and
the Lender and its predecessors in interest have entered into the
following instruments and agreements, each as amended from time
to time, and each of which shall be included within the
definition of the term Existing Loan Documents :
2.1.1. First Amended and Restated Assumption, Extension
and Loan Agreement. The First Amended and Restated Assumption,
Extension and Loan Agreement dated as of May 30, 1995, as amended
by Amendment Number One to First Amended and Restated Assumption
Extension and Loan Agreement dated as of December 6, 1995, by
Amendment Number Two to First Amendment and Restated Assumption,
Extension and Loan Agreement dated October 21, 1996, by letter
agreement dated February 27, 1997 from the Lender to the
Borrower, and Amendment Number Three to First Amendment and
Restated Extension and Loan Agreement dated May 16, 1997 shall be
referred to herein as the Existing Agreement :
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2.1.2. Consolidated Note and Standby Letters of Credit.
The following Application and Agreement for Standby Letter of
Credit, and Standby Letter of Credit shall collectively be
referred to herein as SBLC :
(a) Application and Agreement for Standby Letter of
Credit No. XX0000000 dated March 27, 1995 from the Borrower to
the Lender; and
(b) Standby Letter of Credit No. XX0000000 dated
March 30, 1995 from the Lender to Xxxx Xxxxxxx Mutual Life
Insurance Company ( Xxxxxxx ) in the amount of $1,740,000
( Letter of Credit ).
2.1.3. Existing Letter of Credit Drawing Agreements. The
following letter of credit drawing agreements shall be referred
to herein as the Existing L/C Drawing Agreement :
(a) Letter of Credit Drawing Agreement (Ledgewood)
dated March 29, 1995 between the Borrower and Xxxxxxx, as
assigned by the Borrower to the Lender pursuant to that certain
Assignment of Rights dated as of March 30, 1995.
2.2 Existing Loan Indebtedness. The Borrower and Lender
hereby acknowledge and agree that as of the date hereof, the
aggregate principal amount of the SBLC issued by the Lender on
behalf of the Borrower (the Present Committed Principal ) is
$1,740,000 pursuant to SBLC No. XX0000000.
2.3. Amendment and Restatement. The Borrower has requested
that the Lender enter into this Agreement in order to extend the
Existing Agreement and the outstanding SBLC. Subject to all of
the terms and conditions hereof, the Lender is willing to enter
into this Agreement and the other instruments and agreements
contemplated hereby.
3. Maximum Loan Amount. In consideration of all of the
terms and conditions hereof, and the instruments and agreements
contemplated hereby, the Lender agrees to amend and restate the
Existing Agreement and extend the SBLC. The maximum amount
outstanding under the SBLC, at any time (the Outstanding
Principal ), shall not exceed $1,740,000 (the Maximum Loan
Amount ). The Indebtedness due under the SBLC is referred to
herein collectively as (the Loan ).
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The amount available under the SBLC shall be the
Committed Principal . The date of the Amendment Closing is
referred to herein as the Amendment Closing Date .
4. Evidence of Indebtedness. The obligation of the
Borrower to repay the Loan shall be evidenced by the SBLC and the
Agreement. The Loan shall be payable and bear interest based on
the Prime Rate plus the Applicable Spread and shall be payable on
demand but in any event no later than June 15, 1998 (the
Maturity Date ).
The SBLC shall be extended to a date not later than
June 15, 1998 subject to the terms of this Agreement.
4.1. Disbursements and Certain Payments. All payments of
principal and interest and any other payments due pursuant hereto
shall be made in lawful money of the United States of America to
the Lender at 00 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or
at such other place or places as the Lender may specify by notice
to the Borrower, not later than 1:00 p.m., Boston time, on the
day such payment is due or made. On the first day of each month,
the Lender shall debit one or more of the regular deposit
accounts of the Borrower with the Lender in an aggregate amount
equal to the amount of interest, if any, payable on such date as
set forth herein. In the event that the aggregate amount of all
funds in such accounts of the Borrower is insufficient to pay the
amount of such interest, the Borrower will, without notice,
forthwith pay to the Lender in immediately available funds the
amount of the deficiency.
4.2. Charges Against Account. Without limiting in any way
any of the Lender s rights under the SBLC, the Borrower hereby
acknowledges that the Lender is authorized, and the Borrower
hereby authorizes the Lender, without notice to the Borrower, to
charge under the SBLC any accounts of the Borrower with the
Lender, including the Cash Collateral Account, (hereinafter
defined) to fund, or reimburse, drafts under the SBLC.
4.3 Additional Collateral - Cash Collateral. With the
execution of said Amendment Number Three To First Amended and
Restated Assumption, Extension, and Loan Agreement, the Borrower
deposited with the Lender to be held in escrow pursuant to the
terms of said Agreement, a cash deposit in the initial amount of
$1,740,000 (defined in said Agreement as the Wal-Mart Escrow
Fund ) to be held in a separate account (defined in said
Agreement as the Wal-Mart Escrow Account ). From and after the
date of this amendment the Wal-Mart Escrow Fund shall be used
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only as cash collateral for the payment or reimbursement of
drafts under the SBLC and the Wal-Mart Escrow Fund shall become
and be known as the Cash Collateral Fund and Wal-Mart Escrow
Account shall become and be known as the Cash Collateral
Account . The Cash Collateral Account is currently Premium
Master Fund Account No. 94019-40264 located at the Lender s place
of business in Boston, Massachusetts.
4.4 Grant of Security Interest. The Borrower hereby
confirms its pledge, assignment and grant to Lender in the
Existing Agreement, and hereby pledges, assigns and grants to
Lender, as security for the prompt observance and performance by
Borrower of all other terms, conditions and provisions of the
Agreement and the Loan Documents on the Borrower s part to be
observed and performed, all of Borrower s right, title, and
interest in and to the Cash Collateral Fund and the Cash
Collateral Account (collectively, the Collateral ), and Borrower
confirms and agrees that Lender shall have, and hereby grants to
the Lender, a security interest (as defined in the Uniform
Commercial Code) in, and a banker s lien and first lien on and
right of set-off against, the Collateral, together with all of
Borrower s rights to receive principal thereof, all interest
thereon, and all of Borrower s other rights as holder and owner
of the Collateral, and any and all of Borrower s rights, title
and interests in and to any certificate, instrument, deposit
account or other evidence of any of the foregoing, and together
with any and all renewals, extensions, roll-overs or replacements
thereof, and the proceeds of any of the foregoing. In addition,
the Borrower hereby confirms that it shall not further pledge,
assign or grant any security interest in the Collateral or permit
any lien or encumbrance to attach thereto, or any levy to be made
thereon, or any UCC-1 Financing Statements, except those naming
Lender as the secured party, to be filed with respect thereto.
Upon an Event of Default, in addition to the rights and
remedies in this Agreement, at Lender s option, Lender shall be
entitled to exercise all rights and remedies available to it
under the Uniform Commercial Code of the Commonwealth of
Massachusetts.
The Borrower (a) shall execute any instruments or take
any steps required by Lender in order that notice of the security
interest confirmed or granted and assigned by Borrower to Lender
under this Agreement shall be given to all appropriate parties
and/or as may be required to enable Lender to enforce its rights
under this Agreement, (b) shall execute, at the request of
Lender, all UCC-1 Financing Statements and other instruments and
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documents required by Lender to perfect the security interest
intended to be created under this Agreement.
In addition to any other rights and remedies of a
secured party under the Massachusetts Uniform Commercial Code
which may be exercised by Lender, the Lender shall have the
immediate and unrestricted right to liquidate, set-off and apply
the full amount of the Collateral, including accrued interest
thereon, to payment or reimbursement of drafts under the SBLC,
without first being required to enforce any other rights of
Lender against the Borrower.
5. INTENTIONALLY OMITTED.
6. Conditions. The Amendment Closing and the Lender's
obligation hereunder shall be subject to the Borrower's
compliance with all of their respective agreements herein
contained and to the satisfaction, at or before the Amendment
Closing of the following further conditions:
6.1. Loan Documents. The following Loan Documents shall
have been duly executed and delivered by the parties thereto and
shall be in full force and effect:
(a) Such financing statements and/or amendments thereto as
the Lender shall from time to time request in order to perfect
the security interests granted by the Security Documents.
(b) Such other documents a the Lender shall requests to
accomplish the transactions contemplated by this Agreement.
6.2. Representations and Warranties. The representations
and warranties of the Borrower and the REIT contained in each of
the Loan Documents, including without limitation in Section 7. of
this Agreement, shall be true and correct as though made on and
as of the Amendment Closing Date and shall continue true and
correct until the Maturity Date.
6.3. No Default. On the Amendment Closing Date and until
the Maturity Date, no Default shall have occurred, or shall
exist.
6.4. Legal Opinions. On the Amendment Closing Date as the
Lender shall request, the Borrower shall have delivered to the
Lender an opinion or opinions in form satisfactory to the Lender
of counsel approved by the Lender:
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(a) as to the Borrower and the REIT, the validity and
enforceability of the Loan Documents and the transactions
contemplated thereby, certain diligence issues and such other
matters as the Lender shall request.
6.5. No Change. Since the date of any financial statements
of the Borrower or the REIT furnished to the Lender in accordance
with the Existing Agreement, no Material Adverse Change shall
have occurred.
6.6. Legality, Etc. This Agreement and the Transactions
contemplated hereby shall not be prohibited by any law or
governmental order or regulation applicable to the Borrower, and
all necessary consents, approvals and authorizations of any
governmental or administrative agency or any other Person to or
of any of the transactions contemplated hereby shall have been
obtained and shall be in full force and effect.
6.7. General. All instruments and legal, corporate, trust
and partnership proceedings in connection with the transactions
contemplated by this Agreement shall be satisfactory in form and
substance to the Lender and the Lender shall have received copies
of all documents, including records of corporate, trust and
partnership proceedings and opinions of counsel, which the Lender
may have reasonably requested in connection therewith, such
documents where appropriate to be certified by proper corporate,
trust, partnership or governmental authorities.
7. Representations and Warranties. Each of the Borrower
and the REIT hereby represents and warrants to the Lender as
follows:
7.1. Organization, Standing and Qualification.
7.1.1. Borrower. The Borrower is a duly organized and
validly existing limited partnership in good standing under the
laws of the State of Delaware with powers and authority for the
making and performing this Agreement and any other existing Loan
Document, for paying and performing the Secured Obligations, and
for owning its properties and for the carrying on of the business
now conducted or presently proposed to be conducted by the
Borrower. Certified copies of all written rules, regulations,
procedures and bylaws, and all other documents which relate to
the governance or internal regulation of the Borrower, including
the Borrower's Partnership Agreement, and all amendments thereto,
or which are interpretative of the foregoing, have previously
been delivered to the Lender and are true, accurate, complete and
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correct as of the date hereof. The Borrower's Partnership
Agreement or certificate of limited partnership has been filed or
recorded in all places where required by law to be filed or
recorded, all required notices of such filing or recording have
been published, and all necessary filings with respect to the
Borrower have been made under all fictitious name or similar
statutes.
7.1.2. REIT. The REIT is the sole general partner of the
Borrower. The REIT is a duly organized and validly existing real
estate investment trust in good standing under the laws of the
State of Maryland, with powers and authority for acting as
general partner of the Borrower and the making and performing the
Loan Document to which it is a party. Certified copies of the
Declaration of Trust and all written rules, regulations,
procedures and bylaws, and all other documents which relate to
the governance or internal regulation of the REIT, or which are
interpretative thereof, and all amendments to any of the
foregoing, have previously been delivered to the Lender and are
true, accurate, complete and correct as of the date hereof. The
REIT's Declaration of Trust has been filed or recorded in places
where required by law to be filed or recorded, all required
notices of such filing or recording have been published, and all
necessary filings with respect to the REIT have been made under
all fictitious name or similar statutes. The beneficial
interest of the REIT in the Borrower is subject to no Liens or
restrictions on transfer (other than restrictions on transfer
contained in this Agreement or any other Loan Documents).
7.1.3. Qualification, Etc. Each member of the REIT Group
is duly and legally qualified or registered to do business as a
foreign corporation, partnership or other organization and is in
good standing in each state or jurisdiction where such
qualification or registration is required, and is duly
authorized, qualified, registered and licensed under all laws,
regulations, ordinances or orders of public authorities or
otherwise to carry on its business in the places and in the
manner presently conducted.
7.2. Execution, Delivery and Effect of Documents. This
Agreement and each of the Loan Documents has been duly executed
and delivered by or on behalf of the Borrower and the REIT
pursuant to authority legally adequate therefor, and this
Agreement and each of the Loan Documents is in full force and
effect, is a legal, valid and binding obligation of the parties
thereto other than the Lender and is enforceable in accordance
with its terms subject to applicable bankruptcy, reorganization,
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insolvency, moratorium or similar laws and equitable principles
affecting the enforcement of creditors' rights generally.
7.3. Changes in Condition. There has been no Material
Adverse Change since the date of the Existing Agreement with
respect to, (i) the Borrower, (ii) the REIT, or (iii) the REIT
and its Subsidiaries (on a consolidated basis).
7.4. Litigation. There is no litigation, at law or in
equity, or any proceeding before any federal, state or municipal
board or other governmental or administrative agency, or
arbitrator or other tribunal pending or to the knowledge of the
Borrower threatened against , the Borrower or any member of the
REIT Group which, in the aggregate, may involve any material risk
of any material judgment or liability unless such judgment would
be fully covered by insurance or, if not so covered by insurance,
would not otherwise result in any Material Adverse Change or
which seeks to enjoin the consummation of, or which questions the
validity of, any of the transactions contemplated by this
Agreement or any other Loan Document, and no judgment, decree or
order of any court, board or other governmental or administrative
agency or arbitrator or other tribunal has been issued against or
binds the Borrower or any member of the REIT Group which has, or
will have, any Material Adverse Effect.
7.5. Tax Returns. Each of the members of the REIT Group has
filed all tax returns which are required to be filed and has
paid, or made adequate provision for the payment of, all taxes
which have or may become due pursuant to said returns or to
assessments received except such taxes, if any, as are being
contested in good faith and as to which adequate reserves, under
GAAP, have been provided. No tax Liens have been filed and no
claims are being asserted with respect to any such taxes. The
charges, accruals and reserves on the books of each such Person
in respect of any taxes or other governmental charges are
adequate.
7.6. No Legal Obstacle to Agreement. Neither the execution
and delivery of this Agreement or of any other Loan Document, nor
the making by the Borrower of any borrowings hereunder, nor the
consummation of any transaction herein or therein referred to or
contemplated hereby or thereby nor the fulfillment of the terms
hereof or thereof or of any agreement or instrument referred to
in this Agreement, has constituted or resulted in or will
constitute or result in a breach of the provisions of any
instrument or agreement to which any member of the REIT Group is
a party or by which any of such Persons is subject or bound, or
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the Borrower's Partnership Agreement, any certificate of limited
partnership, the REIT's Declaration of Trust, the charter or by-
laws of any such Person or the violation of any law, judgment,
decree or governmental order, rule or regulation applicable to
any such Person, or result in the creation under any agreement or
instrument of any Lien upon any of the assets of any of such
Persons. No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority, or
any subdivision thereof, is required to authorize, or is required
in connection with the execution, delivery and performance of, or
the legality, validity, binding effect or enforceability of, this
Agreement or any of the Loan Documents.
7.7. Defaults. No member of the REIT Group is in breach or
default under any provision of any applicable trust instrument,
partnership agreement, certificate of limited partnership,
charter or by-laws. No member of the REIT Group is in breach of
or default under any provision of any agreement, lease or other
instrument to which it is a party or by which it is bound or of
any law, governmental order, rule or regulation, so as to have a
Material Adverse Effect.
7.8. Compliance With Laws. Each member of the REIT Group
has complied with all applicable statutes, rules, regulations,
orders and restrictions of any domestic or foreign government or
any instrumentality or agency thereof, having jurisdiction over
the conduct of their respective businesses or the ownership of
their respective properties (except that compliance with
Environmental Laws shall be as set forth in Section 11. hereof)
to the extent that the failure to so comply would cause a
Material Adverse Change.
7.9. REIT Status. The REIT is a qualified real estate
investment trust pursuant to Section 856 of the Internal Revenue
Code and the REIT has complied with all applicable provisions of
the Internal Revenue Code and the regulations promulgated
pursuant thereto necessary to maintain its status as such a
qualified real estate investment trust.
7.10. No Broker's Fee. Neither the execution and
delivery of any Loan Document nor the execution of this Agreement
will subject the Lender to any claim for a brokerage or finder's
fee or commission, or to any similar charge.
7.11. Incorporation by Reference. The representations
and warranties of the Borrower and the REIT contained in each of
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the Loan Documents are true and correct, and such representations
and warranties are hereby incorporated in this Agreement as
though fully set forth herein.
7.12. Disclosure. Neither this Agreement nor any Loan
Document or other agreement, document, certificate or statement
furnished to the Lender by or on behalf of the Borrower or the
REIT in connection with the transactions contemplated hereby
contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements
contained herein or therein not misleading.
8. Affirmative Covenants. Until the Secured Debt shall
have been paid in full or the Letter of Credit has expired
unutilized and so long as the Lender shall be bound by this
Agreement, and without limiting the generality of any provisions
of any other Loan Documents, each of the Borrower and the REIT
hereby covenants and agrees with the Lender as follows:
8.1. Conduct of Business, Etc.
8.1.1. Business. Each member of the REIT Group will
engage only in the businesses permitted by such Person's charter,
by-laws, partnership, trust or other applicable governing
instrument as in effect on the date hereof.
8.1.2. Maintenance of Properties, Etc. Each member of
the REIT Group (i) will comply with all the terms and provisions
contained in its organizational documents, and (ii) will do all
things necessary to preserve, renew and keep in full force and
effect and in good standing its partnership, corporate, trust or
other existence and material qualifications and rights necessary
or desirable in the ordinary conduct of its business.
8.1.3. Statutory Compliance. Each member of the REIT
Group will comply with (i) all valid and applicable statutes,
rules and regulations of the United States, of the States thereof
and their counties, municipalities and other subdivisions and of
any other jurisdiction applicable to it (except that compliance
with Environmental Laws shall be as set forth in Section 11.
hereof) and (ii) any judgment, order, court injunction, decree or
demand of any court or any governmental authority by which it is
bound or affected.
8.4. Bank Account. The Borrower will establish and maintain
with the Lender an account or accounts in order to effectuate the
payment mechanisms established pursuant to Section 4.2. hereof.
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8.5. REIT Status. The REIT shall comply with all applicable
provisions of the Internal Revenue Code and the regulations
promulgated pursuant thereto necessary to maintain its status as
a qualified real estate investment trust pursuant to Section 856
of the Internal Revenue Code.
8.6. Fiscal Year. Each of the Borrower and the REIT will
maintain a fiscal year ending on December 31 of each year.
8.7. Estoppel Certificates. If and to the extent from time
to time requested by the Lender, the Borrower and the REIT shall
furnish to the Lender written statements, signed and, if so
requested, acknowledged, setting forth the amount of the Secured
Obligations which the Borrower and the REIT acknowledge to be due
to the Lender, specifying any claims of offset or defense which
the Borrower or the REIT asserts against the Secured Obligations
or the REIT's guaranty thereof, and such other matters as the
Lender shall request.
8.8. Financial Statements. The Borrower and each other
member of the REIT Group will maintain systems of accounting in
which complete entries will be made of all dealings and
transactions of a financial nature in relation to their business
and affairs in accordance with GAAP.
8.8.1. Annual Statements.
(i) There shall be furnished to the Lender as soon as
available and in any event within 90 days after the end of each
fiscal year of the REIT and its Subsidiaries, the consolidated
and consolidating financial statements, including the balance
sheet as at the end of such fiscal year and the statements of
earnings and shareholder's equity and cash flows, of the REIT and
its Subsidiaries. The consolidated financial statements
described above shall be accompanied by reports or certificates
of Ernst & Young or other independent certified public
accountants satisfactory to the Lender, to the effect that such
financial statements have been prepared in accordance with GAAP
consistently applied and fairly present the financial condition
of the Persons covered thereby at the dates thereof and the
results of their operations for the periods covered thereby. The
financial statements required by this Section 8.9.1.(i) shall
also be accompanied by a certificate signed by the chief
executive officer of the REIT that such signing officer has
caused the provisions of this Agreement to be reviewed and has no
knowledge of any Default, or if he has such knowledge, specifying
such Default and the nature thereof, and what action the Borrower
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has taken, is taking or proposes to take with respect thereto.
8.8.2. Quarterly Statements.
(i) There shall be furnished to the Lender as soon as
available and in any event within 45 days after the end of each
of the fiscal quarters of the REIT and its Subsidiaries, the
consolidated and consolidating financial statements, including
the balance sheet as at the end of each such period and
statements of earnings and shareholders' equity and cash flows
for each such period of the REIT and its Subsidiaries. The
financial statements referred to above shall be accompanied by
(1) a certificate signed by the chief financial officer of the
REIT to the effect that such financial statements have been
properly prepared in accordance with GAAP consistently applied
and fairly present the financial condition of the Persons covered
thereby at the dates thereof and the results of their operations
for the periods covered thereby, subject only to normal year-end
audit adjustments, and (2) a certificate signed by the chief
executive officer of the REIT that such signing officer has
caused the provisions of this Agreement to be reviewed and has no
knowledge of any Default, or if he has such knowledge, specifying
such Default and the nature thereof, and what action the Borrower
has taken, is taking or proposes to take with respect thereto.
8.9. Other Information.
8.91. Material Litigation, Etc. The Borrower and the REIT
will promptly give the Lender written notice of any litigation,
arbitration or administrative proceeding to which the REIT, the
Borrower or any of their Subsidiaries may hereafter become a
party and which may result in any Material Adverse Change.
8.9.2. Defaults. Promptly upon acquiring knowledge
thereof, the Borrower and the REIT will notify the Lender in
writing of the existence of any Default and of any other
development, financial or otherwise, which might have a Material
Adverse Effect or the ability of the Borrower to repay the
Secured Obligations, specifying the nature thereof and what
action the Borrower and the REIT have taken, are taking or
propose to take with respect thereto.
8.9.3. Reports to Stockholders, Etc. Promptly after the
sending, making available or filing of the same, the REIT shall
furnish to the Lender copies of all reports and financial
statements which the REIT shall send or make available to its
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stockholders, and all registration statements and all reports on
Forms 8-K, 10-Q or 10-K or any similar form hereafter in use
which the REIT shall file with the Securities and Exchange
Commission.
8.9.4. Other Information. From time to time upon request
of any authorized representative of the Lender, the Borrower and
the REIT will furnish or cause to be furnished to the Lender such
other information regarding the business, affairs and condition,
financial or otherwise, of any member of the REIT Group or any
Investment Affiliate as such representative may reasonably
request.
8.9.5. Books and Records. The Lender's authorized
representatives shall have the right during normal business hours
to inspect any of the properties of any member of the REIT Group
to examine the books and financial and other records of any such
Person, to make copies, notes and abstracts therefrom, to make an
independent examination or audit of its books and records for the
purpose of verifying the accuracy of the reports delivered by the
Borrower and the REIT pursuant to Section 8.9. hereof, this
Section 8.10. or otherwise and ascertaining compliance with this
Agreement and the other Loan Documents and to discuss the
foregoing of each of the foregoing parties with, and to be
advised as to the same by, their respective officers and other
representatives at such times and intervals as the Lender may
designate.
8.10. Further Assurances. Upon the Lender's request from
time to time, the Borrower and the REIT will make, execute,
acknowledge and deliver, and file and record, if applicable, all
such instruments and take all such action as the Lender or
counsel for the Lender may reasonably deem necessary or advisable
to carry out the intent and purposes of this Agreement or any
other document, instrument or agreement contained or referred to
herein.
9. Negative Covenants. Until the Secured Debt shall have
been paid in full or the Letter of Credit has expired unutilized
and so long as the Lender shall be obligated under the Agreement,
and without limiting the generality of any provisions of any
other Loan Documents, each of the Borrower and the REIT hereby
covenants and agrees with the Lender as follows:
9.1. Mergers and Consolidation. No member of the REIT Group
will become a party to any merger or consolidation without the
prior written consent of the Lender.
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9.2. Amendments to Agreements. None of the parties to
any of the documents, instruments and agreements referred to in
Section 2.1.3. shall amend, modify or terminate any of such
documents, instruments and agreements without in each case the
prior written consent of the Lender.
10. INTENTIONALLY OMITTED.
11. Rights and Remedies of the Lender.
11.1. Events of Default. The occurrence of any one or
more of the following events (each an Event of Default ) shall
constitute a default under and breach of this Agreement:
11.1.1. The Borrower shall fail to make any payment in
respect of amounts owed pursuant to or in connection with the
SBLC, including fees; or
11.1.2. The Borrower and/or the REIT, as the case may be,
shall fail to perform or observe or cause to be performed or
observed any of the provisions of Sections 8.5., 8.8.1., 8.8.2.,
8.9.3., 9.1. and 9.4. hereof; or
11.1.3. An Event of Default shall occur under the SBLC, or
any Loan Document other than this Agreement; or
11.1.4. Any material representation or warranty made
herein or in any Loan Document, including without limitation in
any report, certificate, financial statement or other instrument
furnished in connection with this Agreement, or any Loan
Document, shall be untrue when made; or
11.1.5. The Borrower assigns this Agreement made or to be
made hereunder or any interest therein, without the prior written
consent of the Lender; or
11.1.6. Any failure to pay, observe or perform any
obligation, Indebtedness, covenant or agreement, to or with the
Lender to be paid, observed or performed on the part of any
member of the REIT Group and such failure shall continue, without
having been duly cured, waived or consented to, beyond the period
of grace, if any, therein specified and, to the extent a period
of grace is not therein specified, for a period of thirty (30)
days; or
11.1.7. The REIT shall fail to maintain its status at any
time as a qualified real estate investment trust pursuant to
15
Section 856 of the Internal Revenue Code;
11.1.8. The dissolution, termination, partial or complete
liquidation, merger or consolidation of the Borrower or the REIT,
or any sale, transfer or other disposition of assets of the
Borrower other than as expressly permitted by the Loan Documents
or otherwise with the prior written consent of the Lender; or
11.1.9. The Borrower or the REIT or any member of the REIT
Group shall be involved in financial difficulties as evidenced
by: (1) its commencement of a voluntary case under Title 11 of
the United States Code as from time to time in effect, or its
authorizing, by appropriate action or proceedings of partners,
directors or other governing body, the commencement of such a
voluntary case; (2) its filing an answer or other pleading
admitting or failing to deny the material allegations of a
petition filed against it commencing an involuntary case under
said Title 11, or seeking, consenting to or acquiescing in the
relief therein provided, or by its failing to controvert timely
the material allegations of any such petition; (3) the entry of
an order for relief in any involuntary case commenced under said
Title 11; (4) its seeking relief as a debtor under any applicable
law, other than said Title 11, of any jurisdiction relating to
the liquidation or reorganization of debtors or to the
modification or alteration of the rights of creditors, or by its
consenting to or acquiescing in such relief; (5) the entry of an
order by a court of competent jurisdiction (i) finding it to be
bankrupt or insolvent, (ii) ordering or approving its
liquidation, reorganization or any modification or alteration of
the rights of its creditors, or (iii) assuming custody of, or
appointing a receiver or other custodian for, all or a
substantial part of its property; or (6) by its making an
assignment for the benefit of, or entering into a composition
with, its creditors, or appointing or consenting to the
appointment of a receiver or other custodian for all or a
substantial part of its property; or
11.1.10. Failure to observe or perform any other covenant,
condition or agreement, on the part of the Borrower or the REIT
to be observed or performed pursuant to the terms of this
Agreement, and such failure shall continue for a period of thirty
(30) days after notice thereof given by the Lender to the
Borrower.
11.2. Remedies. Upon the occurrence of any Event of
Default, the Lender may at any time thereafter, at its option and
without notice, exercise any or all of the following rights and
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remedies:
(a) The Lender may terminate its obligations hereunder
and/or declare the SBLC and the entire Secured Debt due and
payable, and the SBLC and Secured Debt shall thereupon become and
be immediately due and payable, anything in the Loan Documents to
the contrary notwithstanding, and without presentation, protest
or further demand or notice of any kind, all of which are
expressly hereby waived by the Borrower. Notwithstanding and
without limitation of the generality of the foregoing, upon the
occurrence of an Event of Default under Section 11.1.9. hereof,
the Lender's and the entire Secured Debt automatically shall
become and be immediately so due and payable.
(b) The Lender may exercise any or all of the rights and
remedies set forth in the other Loan Documents.
11.3. Power of Attorney. For the purposes of carrying
out the provisions and exercising the rights, powers and
privileges granted by or referred to in this Section 11., each of
the Borrower and the REIT hereby irrevocably constitutes and
appoints the Lender its true and lawful attorney-in-fact, with
full power of substitution, to execute, acknowledge and deliver
any instruments and do and perform any acts which are referred to
in this Section 11. in the name and on behalf of the Borrower
and/or the REIT. The power vested in such attorney-in-fact is,
and shall be deemed to be, coupled with an interest and
irrevocable.
11.4. Remedies Cumulative. Upon the occurrence of any
Event of Default, the rights, powers and privileges provided in
this Section 11. and all other remedies available to the Lender
under this Agreement or under any of the Loan Documents or at law
or in equity may be exercised by the Lender at any time and from
time to time and shall not constitute a waiver of any of the
Lender's other rights or remedies thereunder, whether or not the
Secured Debt shall be due and payable, and whether or not the
Lender shall have instituted any foreclosure proceedings or other
action for the enforcement of its rights under the Loan
Documents.
11.5. Annulment of Defaults. An Event of Default shall
not be deemed to be in existence for any purpose of this
Agreement or any Loan Document if the Lender shall have waived
such Event of Default in writing or stated that the same has been
cured to its reasonable satisfaction, but no such waiver shall
extend to or affect any subsequent Event of Default or impair any
17
of the rights of the Lender upon the occurrence thereof.
11.6. Waivers. Each of the Borrower and the REIT hereby
waives to the extent not prohibited by applicable law (a) all
presentments, demands for performance, notices of nonperformance
(except to the extent required by the provisions hereof or of any
other Loan Documents), protests and notices of dishonor, (b) any
requirement of diligence or promptness on the Lender's part in
the enforcement of its rights under the provisions of this
Agreement or any Loan Document, and (c) any and all notices of
every kind and description which may be required to be given by
any statute or rule of law and any defense of any kind which the
Borrower or the REIT may now or hereafter have with respect to
its liability under this Agreement or under any Loan Document.
11.7. Course of Dealing, Etc. No course of dealing
between the Borrower or the REIT and the Lender shall operate as
a waiver of any of the Lender's rights under this Agreement or
any Loan Document or with respect to any of the Secured
Obligations. No delay or omission on the Lender's part in
exercising any right under this Agreement or any Loan Document or
with respect to any of the Secured Obligations, shall operate as
a waiver of such right or any other right hereunder. A waiver on
any one occasion shall not be construed as a bar to or waiver of
any right or remedy on any future occasion. No waiver or consent
shall be binding upon the Lender unless it is in writing and
signed by the Lender. The making of a Readvance hereunder during
the existence of a Default shall not constitute a waiver thereof.
12. Definitions. For the purposes of this Agreement, the
following terms defined elsewhere in this Agreement in the
Sections set forth below shall have the respective meanings
therein defined:
TERM DEFINITION
" Agreement" Preamble
" BNE" Section 2.
" Borrower" Preamble
" Committed Principal" Section 3.
" Event of Default" Section 15.
" Existing Agreement" Section 2.1.1.
" Existing L/C Drawing Agreement" Section 2.1.3.
" Existing Loan" Section 2.
" Existing Loan Documents" Section 2.1.
" FDIC" Section 2.
18
" Xxxxxxx" Section 2.1.2.(b)
" Lender" Preamble
" Letter of Credit" Section 2.1.2(b)
" Loan" Section 3.
" Maturity Date" Section 4.2.
" Maximum Loan Amount" Section 3.
" NBNE" Section 2.
" Outstanding Principal" Section 3.
" REIT" Preamble
" SBLC" Section 2.1.2.
" Wal-Mart Escrow Account" Section 4.14.
" Wal-Mart Escrow Fund" Section 4.14.
In addition, for purposes of this Agreement, the
following terms shall have the respective meanings set forth
below:
Affiliate means any Person directly or indirectly
controlling, controlled by or under direct or indirect common
control with any member of the REIT Group. A Person shall be
deemed to control another Person (i) if the controlling Person
owns or has a right to convert interests into or otherwise
acquire 10% or more of any class of voting securities of the
controlled Person or (ii) possesses directly or indirectly, the
power to direct or cause the direction of the management or
policies of the controlled Person, whether through ownership of
stock or other equity securities, by contract or otherwise.
Amendment Closing Date means the date on which this
Agreement is executed and delivered and the Amendment Closing
occurs, but not later than April 15, 1998.
Applicable Spread shall mean with respect to a Prime Rate
Readvance, one quarter of one percent (0.25%) per annum.
Business Day shall mean a day other than Saturday or
Sunday on which banks are open for business in Providence.
Default shall mean any Event of Default under this
Agreement or any other specified Loan Document and any event or
condition which, with the giving of notice or the passage of time
or both, would constitute such an Event of Default.
Distribution means with respect to any Person a
declaration or making of any distribution of income or capital,
issuance of any equity securities, retirement, redemption or
other acquisition for value of any or all of its outstanding
19
securities, return of any capital, or contracting to do any of
the foregoing.
Event of Default shall mean each of the events and
conditions set forth in Section 11.1 hereof; provided that, as
used with reference to any other Loan Document, such term shall
mean an event or condition which constitutes a default under or
breach of such Loan Document beyond the applicable grace period
therein specified, if any.
GAAP shall mean generally accepted accounting principles
as defined by the Financial Accounting Standards Board as from
time to time in effect consistently applied.
Indebtedness of a Person shall include all obligations,
contingent or otherwise, which in accordance with GAAP should be
classified upon such Person's balance sheet as liabilities, but
in any event including liabilities secured by any Lien existing
on property owned or acquired by such Person or a Subsidiary
thereof, whether or not the liability secured thereby shall have
been assumed, all so-called capitalized lease obligations,
obligations under Interest Rate Contracts (valued at the
termination cost thereof), and all guaranties, endorsements and
other contingent obligations in respect of Indebtedness of
others.
Internal Revenue Code means the Internal Revenue Code of
1986, as amended from time to time, and any successor statute.
Lien means any security interest, mortgage, pledge, lien,
claim, charge, encumbrance, conditional sale or other title
retention agreement, lessor's interest under a so-called
capitalized lease or analogous instrument, in, of, or on any
Person's assets or properties in favor of any Person.
Loan Documents shall include this Agreement, the SBLC, and
each other present or future instrument or agreement evidencing,
securing, guarantying or otherwise relating to any or all of the
Secured Obligations or which is stated to be a Loan Document as
defined in this Agreement, each as from time to time amended or
modified, and all statements, reports and certificates delivered
to the Lender by or on behalf of the Borrower, any member of the
REIT Group or any other Person in connection herewith or
therewith, including without limitation each such agreement,
instrument, statement, report and certificate referred to in or
delivered from time to time pursuant to Section 8.9. or 8.10.
hereof.
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Material Adverse Change shall mean a change which shall
materially impair the business or assets or the condition,
financial or otherwise, of , the Borrower, or the REIT on an
individual basis, or of the members of the REIT Group on a
consolidated basis.
Material Adverse Effect shall mean the effect caused by a
Material Adverse Change.
Person means any natural person, corporation, firm,
association, joint venture, partnership, trust, organization,
enterprise, government or any department, political subdivision
or agency thereof.
Prime Rate shall mean the interest rate announced by the
Lender from time to time as its Prime Rate .
REIT Group shall mean the REIT and the Borrower and their
respective Subsidiaries.
Secured Obligations shall mean (a) the payment and
performance of all covenants and agreements contained in this
Agreement, the SBLC, and each of the other Loan Documents, and
(b) without limiting the generality of the foregoing, the payment
of the Secured Debt, even if the aggregate amount of the Secured
Debt outstanding at any one time exceeds the face amount of the
SBLC.
Secured Debt shall include all Indebtedness, liabilities
and amounts from time to time evidenced by the SBLC, and, to the
extent permitted by law, all other Indebtedness and liabilities,
direct or indirect, of the Borrower to the Lender due or to
become due hereunder, or under any other Loan Document
(including, without limitation, any future advances,
disbursements, payments and reimbursements made, and charges,
expenses and costs incurred by the Lender pursuant to the
provisions of this Agreement, or any such other Loan Document).
Security shall mean all assets now or from time to time
hereafter encumbered or subjected to a lien, security interest or
charge (or intended or required so to be) pursuant to any other
Security Document to secure any or all of the Secured
Obligations.
Security Document shall include each present or future
instrument or agreement securing any or all of the Secured
Obligations.
21
Subsidiary of the Borrower or other specified Person shall
mean any Person (i) of which the specified parent now or
hereafter shall at any time own directly or indirectly through a
Subsidiary at least 50% of the outstanding capital stock (or
other equity interest) entitled to vote generally, or (ii) in
which the Borrower or other such specified parent or any
Subsidiary thereof shall at any time be a general partner or
joint venturer.
Uniform Commercial Code shall mean the Uniform Commercial
Code as enacted in Massachusetts and from time to time amended
and in effect.
13. Expenses; Indemnity.
13.1. Expenses. Whether or not the transactions
contemplated hereby shall be consummated, the Borrower will bear,
and from time to time upon the Lender's request will pay or
reimburse the Lender for:
(a) all expenses in connection with the preparation,
negotiation, execution and delivery of this Agreement and each
other Loan Document and the transactions contemplated hereby and
thereby and any amendment or modification hereof and thereof and
operations hereunder and thereunder, and the granting, taking or
releasing of any Security for any of the Secured Obligations,
including without limitation reasonable attorney's fees of the
Lender's counsel, charges for examining public records and
charges of any construction consultant and all other
professionals engaged by the Lender;
(b) all taxes, including recording and filing fees and
transfer and similar taxes at any time payable in respect of this
Agreement or any Loan Document or the granting, taking,
perfecting or releasing of any Security;
(c) all other out-of-pocket expenses incurred by the Lender
in respect of the granting, taking, perfecting, protecting or
releasing of any Security; and
(d) all expenses incurred by the Lender or any holder of
any Secured Obligations in connection with the enforcement of any
rights hereunder or under any other Loan Document or with respect
to any Security, including costs of collection and reasonable
attorneys' fees.
22
13.2. Indemnity. The Borrower shall indemnify the
Lender against and hold the Lender harmless from all claims,
damages, loss and liability incurred or sustained by the Lender
or asserted against the Lender, directly or indirectly, in
connection with any of the following:
(a) any breach of any representation or warranty contained
in any of the Loan Documents;
(b) any failure to pay, observe or perform any of the
Borrower's obligations under any of the Loan Documents; or
(c) the existence of or the exercise of any of the Lender's
rights with respect to any Security;
and any and all actions, suits, proceedings, assessments,
judgments, costs and expenses, including reasonable attorney's
fees, incident to any of the foregoing.
13.3. Survival. The covenants contained in this
Section 13. shall survive the termination of this Agreement for
any reason.
1. Notices. All notices and other communications required
or permitted to be given hereunder shall be in writing and shall
be effective when mailed, postage prepaid, by registered or
certified mail (return receipt requested), or when delivered to
Federal Express or other overnight courier, delivery charges
prepaid:
If to the Borrower
or the REIT: 000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
and
Xxxxxx Xxxx
with a simultaneous
copy to: Xxxxxxx & Masyr
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esquire
with a simultaneous copy, in the case of a notice of Default
given by the Lender pursuant to Section 11.10. hereof based on a
Default arising out of an act or omission of , to the trustees of
the REIT set forth and at the addresses set forth on Schedule 2
hereto
23
If to the Lender: Fleet National Bank
Mail Stop: MA/BO/F11C
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Xxxxxx X. Xxxxxx, Vice President,
Commercial Real Estate
with a simultaneous
copy to: Peabody & Xxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxx Xxxxx, Esquire
or to such other address as any party may from time to time
specify by like notice.
15. Survival of Representations, Warranties and Covenants.
All covenants, agreements, representations and warranties made by
or on behalf of the Borrower or the REIT herein or in any other
Loan Document and in certificates delivered pursuant hereto or
thereto shall be deemed to have been material and relied on by
the Lender, notwithstanding any investigation made by the Lender
or on its behalf, and shall survive the execution and delivery to
the Lender hereof and thereof.
16. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW
OF CONFLICTS) OF THE COMMONWEALTH OF MASSACHUSETTS, BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANK.
17. CONSENT TO JURISDICTION. EACH OF THE BORROWER AND THE
REIT HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION
OF ANY UNITED STATES FEDERAL OR MASSACHUSETTS STATE COURT SITTING
IN BOSTON, MA IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENT AND EACH OF THE BORROWER AND THE
REIT HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER OR THE REIT IN
THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
THE BORROWER OR THE REIT AGAINST THE LENDER OR ANY AFFILIATE OF
THE LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
24
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN BOSTON
MASSACHUSETTS.
18. WAIVER OF JURY TRIAL. THE BORROWER, THE REIT AND THE
LENDER, BETWEEN AND AMONG THEMSELVES ONLY (AND NOT AS RESPECTS
ANY OTHER PERSON TO ANY JUDICIAL PROCEEDING) HEREBY WAIVE TO THE
EXTENT PERMITTED BY LAW TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING
IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
19. Restatement. This Agreement shall be effective as of
the Amendment Closing and, upon and from and after the Amendment
Closing, this Agreement shall amend, restate and supersede the
Existing Agreement. Nothing contained herein or in any of the
other Loan Documents shall obligate the Lender to enter into any
other or further extensions of or amendments to the Loan and the
Loan Documents.
20. Further Assurances. The Borrower, the REIT and the
Lender, upon request from time to time by any other of them, will
make, execute, acknowledge and deliver, and file and record, if
applicable, all such instruments and take all such action as the
requesting party or its counsel may reasonably deem necessary or
advisable to carry out the amendment and restatement of the
Existing Agreement and the transactions contemplated hereby.
21. Entire Agreement. This Agreement and the documents
referred to herein represent the entire understanding and
agreement between the parties with respect to the subject matter
hereof and supersede all other negotiations, understandings, and
representations made by and between such parties. No course of
dealing, course of performance, trade usage or parole evidence of
any nature shall be used to supplement or modify any terms of
this Agreement.
22. Amendments. The provisions of this Agreement may not
be amended, supplemented, waived or changed orally, but only by a
writing signed by the party as to whom enforcement of any such
amendment, supplement, waiver or modification is sought and
making specific reference to this Agreement.
23. Arm's-Length Transaction. The Borrower and the REIT
recognize, stipulate and agree that the Lender's actions and
relationships with the parties hereto, including, but not limited
to, those relationships created or referenced by or in the Loan
25
Documents, or in this Agreement, have been and constitute arm's-
length commercial transactions, and that such actions and
relationships shall at all times in the future continue to
constitute arm's-length commercial transactions and that the
Lender or the Lender's attorneys shall not any time act, be
obligated to act, or otherwise be construed or interpreted as
acting as or being the agent, attorney, partner, employee or
fiduciary of any such parties.
24. Negotiations. The Borrower and the REIT stipulate and
agree that each of the Loan Documents and this Agreement are
products of and result from lengthy arm's-length negotiations
between the parties and that neither the Lender nor any other
party has exerted or attempted to induce, through threats or
otherwise, the execution or delivery of this Agreement or any of
the Loan Documents. Without in any way limiting the foregoing,
the Borrower and the REIT stipulate and agree that at all times
during the course of the negotiations surrounding the execution
and delivery of the Loan Documents and this Agreement, it has, to
the extent deemed necessary or advisable in his or its sole
discretion, been advised and assisted by competent counsel of his
or its choosing, that counsel has been present and actively
participated in the negotiations surrounding the Loan Documents
and this Agreement and that each has been fully advised by
counsel of his or its choosing of the effect of each term,
condition, provision and stipulation contained therein.
25. Time is of the Essence. Time is of the essence of this
Agreement and the Loan Documents and all obligations and duties
hereunder and thereunder.
26. Agreements Relating to Consideration. The Borrower and
the REIT hereby acknowledge and agree that the covenants and
agreements of the Lender under this Agreement constitute full and
fair consideration for the obligations, covenants and agreements
of the Borrower and the REIT under this Agreement and that, by
virtue of such consideration, each of the parties hereto has
received reasonably equivalent value in exchange for his or its
covenants and agreements hereunder.
27. Assignment. Notwithstanding anything to the contrary
contained herein or in any other Loan Document, the Borrower
shall not assign or attempt to assign, directly or indirectly,
any of its rights under this Agreement or under any other Loan
Document without the prior written consent of the Lender in each
instance. The Lender shall have the right from time to time to
assign all or any portion of its interest in the Loan and the
26
Loan Documents and grant participations therein. If the Lender
so assigns all of its interest in the Loan and the Loan Documents
from and after such assignment the Borrower shall look solely to
the assignee for satisfaction of all obligations and duties of
the Lender under the Loan Documents and the Lender so assigning
the Loan and the Loan Documents shall not have any liability,
obligations or duties under the Loan Documents with respect to
periods from and after such assignment.
28. Miscellaneous. The invalidity or unenforceability of
any term or provision hereof shall not affect the validity or
enforceability of any other term or provision hereof, and any
such invalid or unenforceable provision shall, to the extent
practicable, be deemed modified to the extent necessary to make
it valid and enforceable. The headings in this Agreement are for
convenience of reference only and shall not alter or otherwise
affect the meaning hereof. This Agreement is a Loan Document,
may be executed in any number of counterparts which together
shall constitute one instrument, and shall bind and inure to the
benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns, including as
such successors and assigns, in the case of the Lender, all
holders of any Secured Obligation. The Borrower, the REIT and
the Lender agree that nothing contained in this Agreement or any
other Loan Document is intended or shall be construed to
establish the Borrower, the REIT, any other member of the REIT
Group and the Lender, or any of them, as joint venturers or
partners. The Loan Documents are intended solely for the benefit
of the Borrower, , the REIT and the Lender, and no third party
shall have the rights or interest in any provision of the Loan
Documents, or as a result of any action or inaction of the Lender
in connection therewith. The term Borrower , together with any
pronoun referring thereto, shall include the
singular, plural, masculine, feminine and neuter, as the context
may require; and if more than one Person constitutes the
Borrower, the obligations of such Persons shall be joint and
several.
IN WITNESS WHEREOF, the Lender, the Borrower and the REIT
have each duly executed, or caused to be duly executed, this
Agreement as a sealed instrument, in the name and behalf of each
of them (acting by their respective proper officers or
appropriate legal representatives, as the case may be, hereunto
duly authorized), as of the day and year first above written.
27
FLEET NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXX CENTERS LIMITED PARTNERSHIP
By: Xxxx Centers Trust,
its general partner
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Senior Vice President and
Chief Financial Officer
XXXX CENTERS TRUST
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Senior Vice President and
Chief Financial Officer
