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EXHIBIT 10(k)(6)(c)
AMENDMENT TO ASSIGNMENT OF CONTRACTS, LICENSES AND
PERMITS
FROM
XXXXX EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
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AMENDMENT TO ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS
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THIS AMENDMENT TO ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS (this
"Assignment") is made and executed this 30th day of December, 1998, by
XXXXX EQUITY, INC., a Florida corporation ("Borrower"), whose address is 0000
Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: X.X. Xxxxxx,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Agent"), for the
Lenders (as such term is defined in the Second Amended and Restated Revolving
Credit Loan Agreement dated of even date herewith, as amended from time to time,
between Borrower and Lender (the "Loan Agreement").
RECITALS
1. Borrower and Agent, Xxxxxx Guaranty Trust Company of New York,
a New York banking corporation, AmSouth Bank, a state banking corporation, and
Guaranty Federal Bank F.S.B., a federal savings bank (collectively, the
"Original Lenders") entered into that certain Amended and Restated Revolving
Credit Loan Agreement dated as of December 29, 1997 (the "Prior Loan Agreement")
pursuant to which the Original Lenders agreed to extend certain credit to the
Borrower from time to time up to a maximum principal amount of $100,000,000 (the
"Loan").
2. As partial security for the Loan, the Borrower provided the
Original Lenders with that certain Mortgage, Assignment of Leases and Rents and
Security Agreement dated as of December 29, 1997, and recorded in Book 2979,
page 338, of the public records of Greenville County, South Carolina (the
"Mortgage"), wherein the Borrower granted to the Original Lenders a security
interest in certain real property described therein as security for the Loan.
3. As additional collateral for repayment of the Loan, Borrower
made and delivered to the Original Lenders that certain Assignment of Contracts,
Licenses and Permits dated December 29, 1997 (the "Assignment of Contracts"),
which Assignment of Contracts was assigned to Agent pursuant to that certain
Assignment of Mortgage and Related Loan Documents of even date herewith.
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4. The Borrower has applied to the Agent to increase the amount
of the Loan to $150,000,000 and to resyndicate the Loan to additional lenders in
order to finance such increase, and to modify certain other provisions of the
Mortgage. The Agent and the other Original Lenders have agreed to such
modifications, provided, among other things, that the Assignment of Contracts is
modified in accordance with the terms and conditions hereinafter set forth.
ACCORDINGLY, in consideration of the mutual covenants, promises and
agreements hereinafter contained, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Recitals. The recitals hereinabove are true and correct and
are incorporated herein by reference.
2. Additional Lenders. All references to the term "Lender" as
utilized in the Assignment of Contracts shall hereinafter be deemed to refer to
First Union National Bank, as Agent for the Lenders.
3. Additional Promissory Notes. All references to the term
"Notes" as utilized in the Assignment of Contracts shall hereinafter be deemed
to refer collectively to those certain Substitution Revolving Promissory Notes
and Revolving Promissory Notes all of even date herewith from Borrower to each
of Lenders.
4. Amendment to Loan Agreement. All references to the term "Loan
Agreement" as utilized in the Assignment of Contracts shall hereinafter be
deemed to refer to that certain Second Amended and Restated Revolving Credit
Loan Agreement dated of even date herewith between Borrower and Lender. All
references to the term "Loan" as utilized in the Assignment of Contracts shall
hereinafter be deemed to refer to the Loan evidenced by the Second Amended and
Restated Loan Agreement.
5. Ratification. Except as herein expressly amended, the
Assignment of Contracts is hereby ratified and confirmed and shall otherwise
remain unchanged and in full force and effect.
6. Capitalized Terms. All initial capitalized defined terms not
defined herein shall have the meanings assigned to them in the Assignment of
Contracts.
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7. Counterparts. This Agreement may be executed in separate
counterpart signature pages, and all such counterparts taken together shall
constitute but one and the same instrument.
8. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, BORROWER, THE AGENT, AND THE LENDERS, THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH
ACKNOWLEDGE AND AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE BASED UPON OR
ARISING OUT OF THIS ASSIGNMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE
PARTIES RELATED THERETO. NONE OF THE PARTIES SHALL SEEK TO CONSOLIDATE ANY SUCH
ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE
PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES, ARE MADE
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL INDUCEMENT
FOR THE LENDERS TO MAKE THE LOAN TO BORROWER, AND SHALL BE SUBJECT TO NO
EXCEPTIONS.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their authorized officers as of the day and year first above
written.
Signed, sealed and delivered in the BORROWER:
presence of:
XXXXX EQUITY, INC., a Florida
corporation
/s/ Xxxxxx X. Xxxx
----------------------------------- By: /s/ G. Xxxxx Xxxxxxx
Print Name: Xxxxxx X. Xxxx ------------------------------
------------------------ Name: G. Xxxxx Xxxxxxx
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Title: Treasurer
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/s/ X. X. Xxxxxx
----------------------------------- [CORPORATE SEAL]
Print Name: Xxxxx X. Xxxxxx
------------------------ LENDER:
FIRST UNION NATIONAL BANK, a
national association, as Agent
/s/ Xxxx Xxxxxxxx
----------------------------------- By: /s/ Xxxxxx X. Xxxxxxxx
Print Name: Xxxx Xxxxxxxx ------------------------------
----------------------- Name: J. Xxxxxx Xxxxxxxx
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Title: Vice President
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/s/ Xxxxx Xxxxxxxx
----------------------------------- [CORPORATE SEAL]
Print Name: Xxxxx Xxxxxxxx
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