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EXHIBIT 10.39
FOURTH AMENDMENT TO MORTGAGE LOAN AGREEMENT
THIS FOURTH AMENDMENT TO MORTGAGE LOAN AGREEMENT (the "Fourth
Amendment") is entered into effective as of December 31, 1999 by PRECISION
RESPONSE CORPORATION (as "Borrower"), and BANK OF AMERICA, N.A., d/b/a
NATIONSBANK, N.A., successor to NATIONSBANK, N.A., as Bank under that certain
Mortgage Loan Agreement dated May 29, 1998 ("NationsBank").
W I T N E S S E T H:
WHEREAS, that certain Mortgage Loan Agreement (the "Mortgage Loan
Agreement") was executed as of May 29, 1998 by Borrower and NationsBank; and
WHEREAS, the Mortgage Loan Agreement was modified by First Amendment
dated as of June 30, 1998 and by Second Amendment dated September 30, 1998 and
by Third Amendment dated June 30, 1999; and
WHEREAS, the parties desire to further modify the Mortgage Loan
Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties do hereby modify the Mortgage Loan
Agreement as follows:
1. NEGATIVE COVENANTS. Section 5.04 is hereby modified in its entirety
to read as follows:
5.04 CAPITAL EXPENDITURES. Make or become committed to make
Capital Expenditures which exceed in the aggregate (on a
noncumulative basis, with the effect that amounts not expended
in any Fiscal Year may not be carried forward to a subsequent
period) Forty Million Dollars ($40,000,000) in any Fiscal
Year.
2. LOAN HOLDBACK. Section 2.02 as previously modified by the Third
Amendment is hereby modified in its entirety to read as follows:
2.02 LOAN HOLDBACK. The amount of One Million One Hundred
Twenty Thousand Dollars ($1,120,000.00) shall not be disbursed
to Borrower at Closing, and shall constitute the "Interior
Improvement Holdback". The Interior Improvement Holdback shall
be disbursed to Borrower upon the substantial completion by
Borrower of the interior improvements to the Mortgaged
Property in a lien free manner to the satisfaction of Bank.
The Borrower agrees to substantially complete the interior
improvements not later than March 2, 2000. The interior
improvements shall be deemed to be substantially completed at
such time as (a) Borrower has obtained a Certificate of
Occupancy or Completion for the premises and improvements, and
(b) Borrower has obtained a contractor's final lien release
from all contractors who have worked on the interior
improvements, and (c) Bank's inspector (I.E., an inspector
designated by Bank) has inspected the interior improvements
and has verified to Bank that the interior improvements have
been
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substantially completed and (d) Borrower has furnished to Bank
an updated endorsement to the title policy insuring the
Mortgage confirming the absence of liens on the Mortgaged
Property. In the event that Borrower fails to substantially
complete the interior improvements in accordance with this
Section 2.02 on or before March 2, 2000, then Bank shall not
be obligated to advance the Interior Improvement Holdback and
at the option of Bank the amount of the Loan shall be deemed
reduced by the amount of the Interior Improvement Holdback.
The failure of Borrower to substantially complete the interior
improvements on or before March 2, 2000 in accordance with
this Section 2.02 shall not be deemed to constitute a Default
under this Agreement and the only consequence of such failure
shall be a reduction in the amount of the Loan, but the
foregoing shall not be deemed to permit any construction liens
to attach to the Mortgaged Property. The Interior Construction
Holdback shall not be deemed an advance of funds to the
Borrower and shall not bear interest unless and until such
funds are advanced to Borrower.
3. REAFFIRMATION. Except as expressly modified herein, the Mortgage
Loan Agreement, as previously amended, is hereby reaffirmed in its entirety.
PRECISION RESPONSE CORPORATION,
AS THE BORROWER
By: /s/ XXXXXX X. XXXXXX
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Name: XXXXXX X. XXXXXX
Title: VP & TREASURER
BANK OF AMERICA, N.A., D/B/A
NATIONSBANK, N.A., SUCCESSOR TO
NATIONSBANK, N.A., AS AGENT AND AS A BANK
UNDER THE CREDIT AGREEMENT
By: /s/ XXXXXXXXX X. XXXXXXXX
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Name: XXXXXXXXX X. XXXXXXXX
Title: SENIOR VICE PRESIDENT
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