SECOND AMENDMENT
TO MASTER CREDIT FACILITY AGREEMENT
THIS SECOND AMENDMENT TO MASTER CREDIT FACILITY AGREEMENT (the "Second
Amendment") is made as of the 1st day of March, 1997, by and among (i) BRI OP
LIMITED PARTNERSHIP, a Delaware limited partnership (the "Borrower"), (ii)
BERKSHIRE REALTY COMPANY, INC., a Delaware corporation (the "REIT"), (iii) BRI
RIVER OAKS LIMITED PARTNERSHIP, a Delaware limited partnership (the "Existing
Subsidiary Guarantor"), BRI HIDDEN OAKS PARTNERSHIP, a Texas general partnership
and BRI TEXAS APARTMENTS LIMITED PARTNERSHIP, a Delaware limited partnership
(collectively, with the Existing Subsidiaxy Guarantor, the "Subsidiary
Guarantors"), (iv) WASHINGTON MORTGAGE FINANCIAL GROUP, LTD., a Delaware
corporation (the "Lender") and (v) XXXXXX XXX, a federally-chartered and
stockholder-owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, 12 U.S.C. ss. l716 et seq.
RECITALS
A. The Borrower, the REIT, the Existing Subsidiary Guarantor and the Lender
are parties to that certain Master Credit Facility Agreement, dated as of
November 17, 1995 (as amended from time to time, the "Master Agreement").
B. All of the Lender's right, title and interest in the Master Agreement
and the Loan Documents executed in connection with the Master Agreement or the
transactions contemplated by the Master Agreement have been assigned to Federal
National Mortgage Association (which now operates for substantially all purposes
under the name Xxxxxx Mae) pursuant to that certain Assignment of Master Credit
Facility Agreement and Other Loan Documents, dated as of November 17, 1995 (the
"Assignment"). Xxxxxx Xxx has not assumed any of the obligations of the Lender
under the Master Agreement or the Loan Documents as a result of the Assignment.
Xxxxxx Mae has designated the Lender as the servicer of the Advances
contemplated by the Master Agreement, and the Lender acts as Xxxxxx Mae's agent
with respect to the making of certain decisions under the Master Agreement.
C. The Borrower has requested that the Lender and Xxxxxx Mae consent to the
withdrawal of the REIT as the General Partner of the Borrower, the addition of
Berkshire Apartments, Inc. (the "New General Partner") as a substitute General
Partner of the Borrower, the admission of the REIT as a Limited Partner of the
Borrower and certain other transactions, all as more particularly described in
that certain Amendment No. 11 to BRI OP Limited Partnership Agreement dated as
of March 1, 1997, a copy of which has been furnished to the Lender and Xxxxxx
Xxx (collectively, the "GP Substitution Transaction").
D. The parties are executing this Second Amendment to evidence the Lender's
and Xxxxxx Mae's consent to the Borrower's request and the amendment of certain
provisions of the Master Agreement required by the Lender and Xxxxxx Xxx as a
condition to its consent.
NOW, THEREFORE, the parties hereto, in consideration of the mutual promises
and agreements contained in this Second Amendment and the Master Agreement, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, hereby agree as follows:
1. Representations and Warranties. The Borrower, the REIT and the
Subsidiary Guarantors hereby represent and warrant to the Lender and Xxxxxx Mae
as follows:
(a) Continuation of the Borrower. The GP Substitution Transaction has
not effected a dissolution or termination of the Borrower and the Borrower
will maintain its existence immediately before and after the GP
Substitution Transaction.
(b) Due Organization of New General Partner. The New General Partner
is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and is qualified to transact
business as a foreign corporation in good standing in each jurisdiction in
which it transacts business.
2. Covenants. The Borrower and the Guarantors each agrees and covenants
with the Lender, with respect to itself, that, at all times during the Term of
the Master Agreement.
(a) Correction in the event of a dissolution. To the extent the GP
Substitution Transaction effects, or is deemed to effect, a dissolution or
termination of the Borrower, such dissolution shall constitute an Event of
Default under the Loan Documents unless (i) the Borrower gives the Lender
notice of the dissolution within 15 days after the REIT, as general partner
of the Borrower, first obtains knowledge that either the dissolution of the
Borrower has occurred or that a claim of such dissolution has been asserted
by any Person, (ii) the Borrower re-forms itself as a limited partnership
under Delaware law within 30 days after the REIT, as general partner of the
Borrower, first obtains knowledge of the dissolution, (iii) the re-formed
Borrower owns the same assets as it did prior to the dissolution or
termination, (iv) the re-formed Borrower continues the business that the
Borrower conducted prior to the dissolution or termination, (v) the
re-formed Borrower assumes and confirms all of the obligations of the
Borrower under the Loan Documents pursuant to documents approved by the
Lender and Xxxxxx Xxx and (vi) the REIT and the Subsidiary Guarantors
confirm their continuing liability under the Loan Documents pursuant to
documents approved by the Lender and Xxxxxx Mae.
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(b) Costs. It shall pay all legal, recording and other fees and
expenses incurred by Xxxxxx Xxx and the Lender in connection with the GP
Substitution Transaction.
3. Amendments to the Master Agreement. Section 13.01(e) of the Master
Agreement is hereby amended as follows:
"(e) Ownership. (1) the REIT shall own 100% of the outstanding
stock in Berkshire Apartments, Inc. (the "New General Partner"), (2) the
New General Partner shall be the sole general partner of the Borrower, the
REIT shall be a Limited Partner of the Borrower and the REIT shall own a
partnership interest as Limited Partner of not less than 51%, (3) the
Borrower and the Subsidiary Guarantors shall be the sole owners of all of
the Collateral and own all of the Mortgaged Properties in fee simple or as
tenant under a ground lease meeting all of the requirements of the DUS
Guide, (4) BRI Hidden Oaks Partnership shall be a general partnership, the
sole partners of which shall be BRI Texas Apartments Limited Partnership
and BRI River Oaks Limited Partnership, (5) BRI River Oaks Limited
Partnership and BRI Texas Apartments Limited Partnership shall each be a
limited partnership, the sole general partner of which shall be a corporate
general partner and the sole limited partner of which shall be the
Borrower, (6) except as the Lender may otherwise agree, each Subsidiary
Guarantor (other than BRI Hidden Oaks Partnership, BRI River Oaks Limited
Partnership and BRI Texas Apartments Limited Partnership) shall be a
limited partnership, the sole general partners of which shall be a
corporate general partner and the Borrower and the sole limited partner of
which shall be the Borrower and (7) the REIT shall own 100% of the
outstanding stock in the corporate general partner of each Subsidiary
Guarantor."
4. Consent. Subject to the satisfaction of each of the following
conditions, the Lender and Xxxxxx Mae hereby consent to the GP Substitution
Transaction:
(a) The REIT and the Subsidiary Guarantors will execute the
Confirmation of Liability attached as Exhibit A to this Second Amendment.
(b) The Borrower, the REIT and the Subsidiary Guarantors will execute
a Compliance Certificate in the form attached as Exhibit B to this Second
Amendment.
(c) The Secretary or Assistant Secretary of the REIT shall deliver an
Organizational Certificate in the form attached as Exhibit C to this
Second Amendment.
(d) The Borrower will deliver favorable opinions of counsel (which may
be in-house counsel) to the Borrower and the Guarantors, as to the due
organization and
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qualification of the New General Partner, the Borrower and the Guarantors,
the due authorization, execution, delivery and enforceability of this
Second Amendment, the failure of the GP Substitution Transaction to effect
a dissolution of the Borrower under Delaware law, and such other matters as
the Lender or Xxxxxx Xxx may require.
(e) The Borrower will deliver a letter from Coopers & Xxxxxxx, as
accountants for the REIT and its Affiliates, advising that the consummation
of the GP Substitution Transaction will not adversely affect the status
of the REIT as a real estate investment trust.
(f) The REIT will deliver all of the Organizational Documents and
good standing certificates of New General Partner, and, if requested by the
Lender or Xxxxxx Xxx, the Borrower, the REIT and the Subsidiary Guarantors.
(g) The Borrower, the REIT and the Subsidiary Guarantors shall deliver
such other documents, instruments, approvals (and, if requested by the
Lender or Xxxxxx Mae, certified duplicates of executed copies thereof) or
opinions as the Lender or Xxxxxx Xxx may request.
5. Capitalized Terms. All capitalized terms used in this Second Amendment
which are not specifically defined herein shall have the respective meanings set
forth in the Master Agreement.
6. Full Force and Effect. Except as expressly modified by this Second
Amendment, all terms and conditions of the Master Agreement shall continue in
full force and effect.
7. Counterparts. This Second Amendment may be executed in counterparts by
the parties hereto, and each such counterpart shall be considered an original
and all such counterparts shall constitute one and the same instrument.
(The rest of the page has been left blank intentionally.]
Second Amendment
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THE BORROWER:
BRI OP LIMITED PARTNERSHIP, a Delaware limited
partnership
By: Berkshire Realty Company, Inc., a
Delaware corporation, its General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President
BRI OP LIMITED PARTNERSHIP, a Delaware limited
partnership
By: Berkshire Apartments, Inc., a Delaware
corporation, its new General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President
THE REIT:
BERKSHIRE REALTY COMPANY, INC., a Delaware
corporation
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President
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TEE EXISTING SUBSIDIARY GUARANTOR:
BRI RIVER OAKS LIMITED PARTNERSHIP
By: BRI River Oaks-II, Inc., General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President
Second Arncndxncnt
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THE SUBSIDIARY GUARANTORS:
BRI HIDDEN OAKS PARTNERSHIP (formerly known as L
& V Hidden Oaks Partnership), a Texas general partnership
By: BRI Texas Apartments Limited Partnership, a
Delaware limited partnership, a General Partner
By: BRI Texas Apartments-II, Inc., an Alabama
corporation, General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx (SEAL)
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President
BRI TEXAS APARTMENTS LIMITED PARTNERSHIP, a
Delaware limited partnership
By: BRI Texas Apartments-II, Inc., an Alabama
corporation, General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx (SEAL)
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President
Second Amendment
-7- to Master Credit Facility Agreement
THE LENDER:
WMF WASHINGTON MORTGAGE CORP.,
a Delaware corporation, formerly known as
Washington Mortgage Financial Group, Ltd.
By: /s/ G. Xxxxx Xxxxxx
--------------------------------------
G. Xxxxx Xxxxxx
Vice President
Second Amendment
-8- to Master Credit Facility Agreement
XXXXXX MAE:
XXXXXX XXX, a federally-chartered and
stockholder-owned corporation organized
and existing under the Federal National
Mortgage Association Charter Act,
12 U.S.C. ss.1716 et seq.
By: [ILLEGIBLE]
--------------------------------------
Name:
Title:
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EXHIBIT A TO SECOND AMENDMENT TO MASTER AGREEMENT
CONFIRMATION OF LIABILITY
THIS BORROWER AND GUARANTOR CONFIRMATION OF LIABILITY (the "Confirmation of
Liability") is made as of the 1st day of March, 1997, by (i) BRI OP LIMITED
PARTNERSHIP, a Delaware limited partnership (the "Borrower"), (ii) BERKSHIRE
REALTY COMPANY, INC., a Delaware corporation (the "REIT"), (iii) BPS RIVER OAKS
LIMITED PARTNERSHIP, a Delaware limited partnership (the "Existing Subsidiary
Guarantor"), BRI Hidden Oaks Partnership, a Texas general partnership and BRI
Texas Apartments Limited Partnership, a Delaware limited partnership
(collectively, with the Existing Subsidiary Guarantor, the "Subsidiary
Guarantors") for the benefit of (i) WASHINGTON MORTGAGE FINANCIAL GROUP, LTD., a
Delaware corporation (the "Lender") and (ii) XXXXXX MAE, a federally-chartered
and stockholder-owned corporation organized and existing under the Federal
National Mortgage Association Charter Act, 12 U.S.C. ss. 1716 et seq.
RECITALS
A. The Borrower, the REIT, the Existing Subsidiary Guarantor and the Lender
are parties to that certain Master Credit Facility Agreement, dated as of
November 17, 1995 (as amended from time to time, the "Master Agreement").
B. All of the Lender's right, title and interest in the Master Agreement
and the Loan Documents executed in connection with.the Master Agreement or the
transactions contemplated by the Master Agreement have been assigned to Xxxxxx
Xxx pursuant to that certain Assignment of Master Credit Facility Agreement and
Other Loan Documents, dated as of November 17, 1995 (the "Assignment"). Xxxxxx
Mae has not assumed any of the obligations of the Lender under the Master
Agreement or the Loan Documents as a result of the Assignment. Xxxxxx Xxx has
designated the Lender as the servicer of the Advances contemplated by the Master
Agreement, and the Lender acts as Xxxxxx Mae's agent with respect to the making
of certain decisions under the Master Agreement.
C. The Borrower, the REIT, the Subsidiary Guarantors, the Lender and Xxxxxx
Xxx are executing that certain Second Amendment to Master Agreement dated as of
March 1, 1997 (the "Second Amendment").
D. The Lender has required the execution of this Confirmation of Liability
as a condition to its execution of the Second Amendment.
E. The parties are executing this Confirmation of Liability to confirm that
each remains liable for all of its obligations under the Master Agreement and
the other Loan Documents.
Second Amendment
to Master Credit Facility Agreemont
NOW, THEREFORE, the Borrower, the REIT and the Subsidiary Guarantors, in
consideration of the Lender's and Xxxxxx Mae's execution of the Second Amendment
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, hereby agree as follows:
1. Confirmation of Liability. The Borrower, the REIT and the Subsidiary
Guarantors each confirms that none of its respective obligations under Master
Agreement and the Loan Documents is affected by the GP Substitution Transaction
(as defined in the Second Amendment) or the execution of the Second Amendment,
and each of its respective obligations under the Master Agreement and the Loan
Documents shall remain in full force and effect, and each shall be fully liable
for the observance of all of such obligations, notwithstanding the GP
Substitution Transaction and the execution of the Second Amendment.
2. Beneficiaries. This Confirmation of Liability is made for the express
benefit of both the Lender and Xxxxxx Xxx.
3. Capitalized Terms. All capitalized terms used in this Confirmation of
Liability which are not specifically defined herein shall have the respective
meanings set forth in the Master Agreement.
4. Counterparts. This Confirmation of Liability may be executed in
counterparts by the parties hereto, and each such counterpart shall be
considered an original and all such counterparts shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THE BORROWER:
BRI OP LIMITED PARTNERSHIP, a Delaware limited
partnership
By: Berkshire Realty Company, Inc., a Delaware
corporation, its General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President
Second Amendment
to Master Credit Facility Agreement
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BRI OP LIMITED PARTNERSHIP, a Delaware limited
partnership
By: Berkshire Apartments, Inc., a Delaware
corporation, its new General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President
THE REIT:
BERKSHIRE REALTY COMPANY, INC., a Delaware
corporation
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President
THE EXISTING SUBSIDIARY GUARANTOR:
BRI RIVER OAKS LIMITED PARTNERSHIP, a Delaware
limited partnership
By: BRI River Oaks-II, Inc., General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President
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to Master Credit Facility Agreement
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THE SUBSIDIARY GUARANTORS:
BRI HIDDEN OAKS PARTNERSHIP (formerly known as L
& V Hidden Oaks Partnership), a Texas general partnership
By: BRI Texas Apartments Limited Partnership, a
Delaware limited partnership, a General Partner
By: BRI Texas Apartments-II, Inc., an Alabama
corporation, General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx (SEAL)
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President
BRI TEXAS APARTMENTS LIMITED PARTNERSHIP, a
Delaware limited partnership
By: BRI Texas Apartments-II, Inc., an Alabama
corporation, General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx (SEAL)
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President
Second Amendment
-4- to Master Credit Facility Agreement
EXHIBIT B TO SECOND AMENDMENT TO MASTER AGREEMENT
COMPLIANCE CERTIFICATE
The undersigned, BRI OP Limited Partnership (the "Borrower"), Berkshire
Realty Company, Inc. (the "REIT"). and BRI River Oaks Limited Partnership, BRI
Hidden Oaks Partnership and BRI Texas Apartments Limited Partnership (the
"Subsidiary Guarantors") hereby certify to Washington Mortgage Financial Group,
Ltd. (the "Lender") and Xxxxxx Mae as follows:
1. Master Agreement. The Borrower and the REIT are parties to that certain
Master Credit Facility Agreement, dated as of November 17, 1995, by and among
the Borrower, the REIT, BRI River Oaks Limited Partnership and the Lender (as
amended from time to time, the "Master Agreement"). The Subsidiary Guarantors
are owners of certain Collateral granted to the Lender pursuant to the Master
Agreement. The rights of the Lender under the Master Agreement have been
assigned to Xxxxxx Xxx. This Certificate is issued pursuant to the terms of the
Master Agreement.
2. No Default. The Borrower, the REIT and the Subsidiary Guarantors each
hereby represents, warrants and covenants to the Lender that no Event of Default
or Potential Event of Default has occurred and is continuing and that all other
General Conditions described in Article XI of the Master Agreement are satisfied
on the date hereof.
3. Capitalized Terms. All capitalized terms used but not defined in this
Certificate shall have the meanings ascribed to such terms in the Master
Agreement.
Dated: August ___, 1997
THE BORROWER:
BRI OP LIMITED PARTNERSHIP, a DeJaware limited
partnership
By: Berkshire Realty Company, Inc., a Delaware
corporation, its General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President
Second Amendment
to Master Credit Facility Agreement
BRI OP LIMITED PARTNERSHIP, a Delaware limited
partnership
By: Berkshire Apartments, Inc., a Delaware
corporation, its new General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President
THE REIT:
BERKSHIRE REALTY COMPANY, INC., a Delaware
corporation
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President
THE SUBSIDIARY GUARANTORS:
BRI RIVER OAKS LIMITED PARTNERSHIP, a Delaware
limited partnership
By: BRI River Oaks-II, Inc., a Delaware
corporation, General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President
Second Amendment
to Master Credit Facility Agreement
2
BRI HIDDEN OAKS PARTNERSHIP (formerly known as L
& V Hidden Oaks Partnership), a Texas general partnership
By: BRI Texas Apartments Limited Partnership, a
Delaware limited partnership, a General Partner
By: BRI Texas Apartments-II, Inc., an Alabama
corporation, General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx (SEAL)
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President
BRI TEXAS APARTMENTS LIMITED PARTNERSHIP, a
Delaware limited partnership
By: BRI Texas Apartments-II, Inc., an Alabama
corporation, General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx (SEAL)
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President
Second Amendment
3 to Master Credit Facility Agreement
EXHIBIT C TO THE SECOND AMENDMENT TO MASTER AGREEMENT
ORGANIZATIONAL CERTIFICATE
I, the undersigned, __________________, hereby certify as follows:
1. Secretary or Assistant Secretary. I am the Secretary or Assistant
Secretary of Berkshire Realty Company, inc. (the "REIT") and I am authorized to
deliver this Certificate on the Corporation's behalf, in its individual capacity
and as General Partner of BRI OP Limited Partnership (the "Borrower").
2. Master Agreement. The Borrower and the REIT are parties to that certain
Master Credit Facility Agreement, dated as of November 17, 1995, by and among
the Borrower, the REIT, BRI River Oaks Limited Partnership and the Lender (as
amended from time to time, the "Master Agreement"). The rights of the Lender
under the Agreement have been assigned to Xxxxxx Mae. This Certificate is issued
pursuant to the terms of the Master Agreement.
3. Due Authorization. I hereby certify that no action of the board of
directors is necessary to duly authorize the execution and delivery of, and the
consummation of the GP Substitution Transaction contemplated by that certain
Second Amendment to Master Agreement, by and among the Borrower, the REIT, the
Subsidiary Guarantors, the Lender and Xxxxxx Xxx, or, if necessary, that
attached as Exhibit A to this Certificate is a true copy of resolutions duly
adopted at a meeting of the board of directors of the REIT which authorizes the
action. Any such resolutions are in full force and effect and are unmodified as
of the date of this Certificate.
4. No Changes. Since the date of the most recent Organizational
Certificate delivered to the Lender, or, if there are none, since the date of
the Master Agreement, there have been no changes in any of the Organizational
Documents of the Borrower, the REIT or any of the Guarantors, except for that
certain Amendment No. 11 to the Borrower's Limited Partnership Agreement and as
set forth in the Exhibit B to this Certificate, and the Borrower, the REIT and
the other Guarantors remain in good standing or duly qualified in each of the
jurisdictions in which they are required to be in good standing under the terms
of the Master Agreement.
Second Amendment
to Master Credit Facility Agreement
5. Incumbency Certificate. The persons authorized to execute and deliver
any documents required to be delivered in connection with the Request are set
forth below, and a specimen signature of each has been previously delivered to
the Lender.
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6. Capitalized Terms. All capitalized terms used but not defined in this
Certificate shall have the meanings ascribed to such terms in the Master
Agreement.
Dated; August ______, 1997
_____________________________
Name:________________________
Title:_______________________
Second Amendment
to Master Credit Facility Agreement
2
