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EXHIBIT 99.37
FIRST AMENDMENT TO LOAN AGREEMENT
This First Amendment dated as of January 21, 1992 (this
"Amendment"), is entered into by and among the Borrowers, the undersigned
financial institutions and XXXXXXXXXX, as Managing Agent. Capitalized terms
used but not otherwise defined herein shall have the meanings ascribed thereto
in the Loan Agreement.
WHEREAS, the Borrowers, the Banks and the Managing Agent have
entered into that certain Loan Agreement dated as of January 21, 1992 (the
"Loan Agreement") among the Borrowers (as defined therein), the financial
institutions signatory thereto, (collectively, the "Banks") and XXXXXXXXXX,
as managing agent (the "Managing Agent") for the Banks; and
WHEREAS, the parties hereto desire to amend the Loan
Agreement as hereinafter set forth;
NOW THEREFORE, in consideration of the premises and the
agreements set forth herein, the parties hereto agree as follows:
Section 1. Amendment. The parties hereto agree that:
1.1 The definition of "Borrower" is amended to add the
words "or Kmart Corporation" after the word "XXXXXXXXXX" where it first appears
in such definition.
1.2 Section 4.1 of the Loan Agreement is hereby amended
by adding the following parenthetical immediately after the words "Each
Borrower" in the first sentence thereof:
"(Other than Kmart Corporation as to Section 4.1(c),
4.1(f) and 4.1(1))"
1.3 Section 5.2 of the Loan Agreement is hereby amended
by adding the following parenthetical after the words "Such Borrower" in the
first sentence thereof: ("other than Kmart Corporation").
Section 2. Representations and Warranties. The Borrowers
represent and warrant to the Banks that the following statements are true,
correct and complete:
2.1 Corporate Power and Authority. Each of the
Borrowers has all requisite corporate power and authority to
enter into this Amendment and the Loan Agreement as
amended hereby and to carry out the transactions contemplated
by, and perform its obligations under, the Loan Agreement as
amended by this Amendment (the "Amended Loan Agreement").
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2.2 Authorization of Agreements. The execution, delivery
and performance of this Amendment, and the performance of the
Amended Loan Agreement have been duly authorized by all
necessary corporate action by each of the Borrowers.
2.3 Incorporation of Warranties From Loan Agreement. The
representations and warranties contained in Section 4.1 of
the Loan Agreement, as modified by the Amendment, are and
will be true, correct and complete in all material respects on
and as of the date hereof to the same extent as though made on
and as of the date hereof, except to the extent that such
representations and warranties specifically relate to an
earlier date, in which case they are true, correct and
complete in all material respects as of such earlier date.
Section 3. Reference to and Effect on the Loan Agreement and
other Loan Documents.
3.1 On and after the effective date hereof, each
reference in the Loan Agreement to "this Agreement,"
"hereunder", "hereof", "herein" or words of like import
referring to the Loan Agreement and each reference in the
other Loan Documents to the "Loan Agreement", "thereunder",
"thereof", or words of like import referring to the Loan
Agreement shall mean and be a reference to the Loan Agreement
as amended by this amendment.
3.2 Except as specifically amended by this Amendment, the
Loan Agreement, the Notes and the other Loan Documents shall
remain in full force and effect and are hereby ratified and
confirmed.
Section 4. Execution and Counterparts; Effectiveness. This
Amendment may be executed in any number of counterparts, and by different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts taken together
shall constitute but one and the same instrument. This amendment shall become
effective as of the date hereof upon the execution of a counterpart hereof by
each Borrower, Guarantor, Required Banks and receipt by Managing Agent of
written or telephonic notice of such execution and authorization of delivery
thereof.
Section 5. Applicable law. This Amendment and the rights and
obligations of the parties hereto and all other aspects hereof shall be deemed
made under, shall be governed by, and shall be construed and enforced in
accordance with, the laws of the State of New York, without regard to
principles of conflicts of law.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first above written, by their
respective officers thereunto duly authorized.
XXXXXXXXXX, a Michigan
general partnership
By: BIG BEAVER DEVELOPMENT CORPORATION,
a Michigan corporation, and its
general partner
By: /s/
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Its: President
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and
By: XXXXXXXXXX, a Michigan limited partners
hip and its managing general partner
By: XXXXXXXXXX, a Michigan
corporation and its sole
general partner
By:
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Its:
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KMART CORPORATION
By: /s/
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Its: Senior Vice President
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first above written, by their
respective officers thereunto duly authorized.
XXXXXXXXXX, a Michigan
general partnership
By: BIG BEAVER DEVELOPMENT CORPORATION,
a Michigan corporation, and its
general partner
By: /s/
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Its: President
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and
By: XXXXXXXXXX, a Michigan limited
partnership and its managing general
partner
By: XXXXXXXXXX, a Michigan
corporation and its sole
general partner
By: /s/
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Its:
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KMART CORPORATION
By: /s/
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Its: Senior Vice President
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[BANK SIGNATURE PAGES INTENTIONALLY OMITTED]
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ACKNOWLEDGEMENT AND CONSENT OF GUARANTOR
Kmart Corporation, in its capacity as Guarantor ("Guarantor") under that
certain Guaranty Agreement dated as of January 21, 1992 (the "Guaranty"), made
by Guarantor in favor of the Lenders (as such term is defined therein) hereby
consents to the Amendment dated as of January 21, 1992 and agrees that the
Guaranty and each other Loan Document to which it is a party shall continue in
full force and effect and shall be valid and enforceable and shall not be
impaired or affected by the execution of this Amendment. Guarantor hereby
acknowledges receipt of all notifications of such amendment in accordance with
the terms of the Loan Agreement.
Kmart Corporation
By: /s/
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Its: Senior Vice President
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