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EXHIBIT 99.38
SECOND AMENDMENT TO LOAN AGREEMENT
This Second Amendment dated as of February 14, 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 (as hereinafter defined).
WHEREAS, the Borrowers, the Banks and the Managing Agent have entered into
that certain Loan Agreement (the "Loan Agreement") dated as of January 21, 1992
as amended by that certain First Amendment to Loan Agreement dated as of
January 21, 1992 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 paragraph (iv) of
Section 2.8(a) of the Loan Agreement is hereby amended by deleting such
paragraph in its entirety and substituting therefor the following:
"(iv) no Borrower may have more than three (3) Eurodollar Tranches for any
single Project at any one time outstanding one of which shall have an
Interest Period of approximately one month."
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").
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.
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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 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
/s/
By: ----------------------------------
Its: Senior Vice President
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[BANK SIGNATURE PAGES INTENTIONALLY OMITTED]
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ACKNOWLEDGMENT 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 February 14, 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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