Exhibit 10.71
CONSENT AGREEMENT
This Consent Agreement is made as of this 1st day of March, 1999 by
Citizens Bank of Massachusetts (the "Bank") and DM Management Company ("DM").
Whereas, the Bank originally extended financing to DM in June, 1997,
which was supplemented in October 1997 and secured at such time by a Mortgage
(the "Mortgage") on a certain parcel of land located in Xxxxxx, New Hampshire
(the "Tilton Property");
Whereas, the Bank and DM further amended the financing extended to DM
pursuant to a Second Amended and Restated Loan Agreement dated as of March 5,
1998 ( as amended, the "Loan Agreement"), which is secured pursuant to the terms
of a Security Agreement between the Bank and DM, dated June 5, 1997 (as amended,
the "Security Agreement");
Whereas, to further secure additional financing extended by the Bank to
DM under the New Bridge Note dated March 5, 1998 (as replaced by the Replacement
New Bridge Note and the Second Replacement Bridge Note, the "Bridge Note") and
the Short Term Revolving Note dated March 5, 1998 (as replaced by the
Replacement Short Term Revolving Note and the Second Replacement Short Term
Revolving Note, the "Short Term Revolving Note"), DM entered into the Amended
Bridge Mortgage on March 5, 1998;
Whereas, the Amended Bridge Mortgage was further amended by the Second
Amendment to Bridge Mortgage on September 4, 1998 (the Mortgage, the Amended
Bridge Mortgage and the Second Amendment to Bridge Mortgage are referred to
herein collectively as the "Mortgages"; the documents referred to above with the
other documents executed in connection with such documents are referred to
herein as the "Loan Documents");
Whereas, DM desires to transfer the Xxxxxx Property to its subsidiary,
Birchpond Realty Corporation ("Birchpond"), which will obtain financing from
Xxxx Xxxxxxx Real Estate Finance, Inc. ("Xxxxxxx");
Now, therefore, in consideration of the premises, the Bank and DM agree
as follows:
1. Contingent upon its receipt of payment in full of all amounts owed
under the Bridge Note and the Short Term Revolving Note, the Bank hereby
consents to the transfer of the Xxxxxx Property to Birchpond and agrees to
execute and deliver one or more releases of the Mortgages. Such transfer shall
not constitute a breach of any term or provision of the Loan Agreement, the
Security Agreement, or any other agreement between the Bank and DM.
2. The Bank hereby consents to DM's guaranty of the Non-Recourse
Covenant Obligations of Birchpond as defined in the Mortgage Note from Birchpond
to Xxxxxxx of even date herewith in the principal sum of $12,000,000, as more
fully set forth in the attached Guaranty Agreement, and agrees that such
guaranty shall not constitute a breach of any term or provision of
the Loan Agreement, the Security Agreement or any other agreement between the
Bank and DM. The Bank also consents to DM's execution, delivery and performance
of an Indemnification Agreement with Xxxxxxx and Birchpond pursuant to which DM
will indemnify Xxxxxxx with respect to the certain liabilities arising under
environmental laws, as more fully set forth in the attached Indemnification
Agreement, and agrees that such indemnification shall not constitute a breach of
any term or provision of the Loan Agreement, the Security Agreement or any other
agreement between the Bank and DM.
3. Except as modified by the above paragraphs, in all other respects
the Loan Documents remain in full force and effect between the parties in
accordance with their terms and DM is not aware of any default by either party
thereunder.
In witness whereof, the Bank and DM have executed this Consent under
seal as of the date first set forth above.
CITIZENS BANK OF MASSACHUSETTS
By: /s/ Xxxx X. Xxxxx
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Title: SVP
DM MANAGEMENT COMPANY
By: /s/ Xxxx X. Xxxxxx
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Title: CHIEF FINANCIAL OFFICER
