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EXHIBIT 10.jjj
CONFIRMATORY ASSUMPTION AND REAFFIRMATION AGREEMENT
This Confirmatory Assumption and Reaffirmation Agreement is entered into
as of this 23rd day of January, 1997 by and among XXXXXX PLACE ASSOCIATES, LLC.,
a Delaware limited liability company ("Xxxxxx"), XXXXXX PLACE ASSOCIATES NOMINEE
CORPORATION, a Delaware corporation ("Nominee"), XXXXXX FUNDING CORPORATION, a
Delaware corporation ("Funding"), XXXXXX FINANCING CORPORATION, a Delaware
corporation ("financing"), and THE AETNA CASUALTY AND SURETY COMPANY, a
Connecticut corporation ("Aetna").
WITNESSETH:
WHEREAS, Xxxxxx Place Associates, an Illinois general partnership ("CPA"),
executed and delivered that certain Purchase Money Wrap-Around Installment Note
Secured by Mortgage dated as of September 1, 1983, as amended by that certain
First Amendment to Purchase Money Wrap-Around Installment Note Secured by
Mortgage dated as of March 1, 1992 (as so amended, the "Xxxxxx Mortgage Note");
WHEREAS, the Xxxxxx Mortgage Note, together -with the security instruments
related thereto, was absolutely assigned by the original holder thereof to
Funding;
WHEREAS, Funding executed and delivered a series of notes to the order of
Financing, and assigned to Funding as collateral for said notes, among other
instruments, the Xxxxxx Mortgage Note together with the security instruments
related thereto;
WHEREAS, Financing entered into that certain Financial Guaranty Agreement
dated as of March 11, 1985 for the benefit of Aetna (as amended, the "Financial
Guaranty Agreement"), and as security for, among other things, Financing's
obligations to Aetna pursuant to the Financial Guaranty Agreement, Financing
collaterally assigned to Aetna certain instruments including, without
limitation, the notes issued from Funding to Financing and the pledge of the
Xxxxxx Mortgage Note and the security instruments related thereto, all as more
particularly set forth in that certain Assignment and Security Agreement dated
as of December 21, 1984, as amended;
WHEREAS, in connection with A 1992 modification of the terms of the Xxxxxx
Mortgage Note, each of CPA, Funding, Financing, Aetna and certain related
parties executed and delivered a series of modifications to the Xxxxxx Mortgage
Note, the security therefor, the notes payable from Funding to Financing and the
security therefor, and the obligations of Financing to Aetna and the security
therefor, all as more particularly described in that certain Omnibus Amendment
Agreement dated as of March 1, 1992 by and among Funding, Financing, Aetna and
Aetna Capital Management, Inc. (the "1992 Omnibus Agreement");
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WHEREAS, CPA has requested Aetna's consent to a transaction pursuant to
which CPA will be merged into Xxxxxx, a newly formed Delaware limited liability
company, and immediately subsequent to such merger certain interests in Xxxxxx
will be transferred to a new entity which will become the majority owner of
interests in Xxxxxx; and
WHEREAS, it is a condition to Aetna's consent to the proposed transaction
that Xxxxxx confirm as successor to CPA all obligations under the instruments
and documentation previously executed by CPA, and Xxxxxx and the parties hereto
have agreed to such confirmation and to certain other amendments to such
instruments and documentation as more particularly herein set forth.
NOW THEREFORE, for and in consideration of the foregoing provisions, of
the agreements herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Incorporation of Recitals, All of the foregoing recitals are hereby
incorporated herein and made a art of this Agreement.
2. Definitions. Each capitalized term used in this Agreement and not
herein defined shall have the meaning for such capitalized term set forth in the
1992 Omnibus Agreement. All of the documents executed and delivered by any of
the parties hereto, including, without limitation, the Xxxxxx Funding Notes, the
Xxxxxx Funding/Xxxxxx Financing Collateral Agreements, the Existing Repledge
Documents, the Existing Collateral Documents, the Collateral Amendments, the
Xxxxxx Deposit Agreement (as modified by this Agreement), the Xxxxxx Equity
Agreement, the 1992 Omnibus Agreement and any and all other instruments or
documents executed by any of the parties hereto in connection with this
transaction being herein referred to individually as a "Document" and
collectively as the "Documents."
3. Confirmation of Release of Texas Mortgage. The parties hereto
acknowledge and agree that the UIDC Deed of Trust Note #1, as modified by the
UIDC Deed of Trust Note #1 Amendment, and the UIDC Deed of Trust Note #2, as
modified by the UIDC Deed of Trust Note #2 Amendment, have been deemed
satisfied, and the UIDC Deed of Trust, as modified by the UIDC Deed of Trust
Modification, has been released from the land records of Xxxxxx County, Texas by
Release of Lien dated as of December 19, 1994. Accordingly, notwithstanding
anything to the contrary contained herein, the assumptions and reaffirmations of
the Documents as herein set forth shall not be deemed to refer or apply to any
of the UIDC Deed of Trust Note #1, as modified, the UIDC Deed of Trust Note #2,
as modified, the UIDC Deed of Trust, as modified, the Xxxxxx Funding #2 Note, as
modified by the Xxxxxx Funding #2 Note Amendment or the Xxxxxx Funding #3 Note,
as amended by the Xxxxxx Funding #3 Note Amendment. All other Documents remain
in full force and effect as herein provided, with the exception that all
references therein to the UIDC Deed of Trust Note #1, as modified by the UIDC
Deed of Trust Note #1 Amendment, the UIDC Deed of Trust Note
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#2, as modified by the UIDC Deed of Trust Note #2 Amendment the UIDC Deed of
Trust as modified by the UIDC Deed of Trust Modification, the Xxxxxx Funding #2
Note, as modified by the Xxxxxx Funding #2 Note Amendment, or the Xxxxxx Funding
#3 Note, as amended by the Xxxxxx Funding #3 Note Amendment shall be deleted to
the extent appropriate to reflect that said instruments have been deemed
satisfied by all parties hereto with an interest therein.
4. Assumption and Reaffirmation by Xxxxxx. Xxxxxx hereby expressly assumes
and agrees to pay, perform and be bound by all obligations under, arising from
or related to, and all terms and conditions of each of the Documents previously
executed by CPA and the indebtedness evidenced and secured thereby, specifically
including, without limitation, the Existing Collateral Documents, as amended by
the Collateral Amendments, the Xxxxxx Deposit Agreement (as modified hereby),
the Xxxxxx Equity Agreement, and the mortgage securing the Xxxxxx Equity
Agreement, in each case as if Xxxxxx had been the original signatory thereof.
This Agreement shall confirm the assumption by Xxxxxx of all of CPA's duties and
obligations which assumption also occurred by operation of law in connection
with the merger of CPA into Xxxxxx.
5. Reaffirmation by Nominee. Nominee hereby reaffirms all terms and
conditions of each of the Documents previously executed by Nominee and the
indebtedness evidenced and secured thereby, including, without limitation, the
Existing Collateral Documents, as amended by the Collateral Amendments, the
Xxxxxx Equity Agreement, and the mortgage securing the Xxxxxx Equity Agreement.
6. Reaffirmation by Funding. Funding hereby reaffirms all terms and
conditions of each of the Documents previously executed by Funding and the
indebtedness evidenced and secured thereby, including, without limitation, each
of the Existing Repledge Agreements and the 1992 Omnibus Agreement.
7. Reaffirmation by Financing. Financing hereby. reaffirms all terms and
conditions of each of the Documents previously executed by Financing and the
indebtedness evidenced and secured thereby, including, without limitation, each
of the Existing Repledge Agreements and the 1992 Omnibus Agreement.
8. References. All references in the Documents to CPA shall hereafter be
deemed to refer to and describe Xxxxxx. All representations, covenants and
warranties of CPA set forth in any of the Documents are reaffirmed by Xxxxxx by
its execution hereof, except to the extent modified by this Agreement.
9. Security Agreement. Xxxxxx (as Debtor) hereby grants to Aetna (as
Creditor) a security interest in all personal property and fixtures described in
the Xxxxxx Mortgage, and in any other personal property or fixtures constituting
part of the Project.
10. Amendment to Transfer Restrictions in the Documents and Confirmation
Control Provisions, The Documents, and specifically the terms of Paragraph 20 of
the
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Xxxxxx Mortgage, as amended by the Xxxxxx Mortgage Modification, are hereby
amended to provide that the consent of Aetna to any transfers of the Project (as
such term is defined in the Xxxxxx Mortgage) or of any transfers of interests in
Mortgagor (as defined in the Xxxxxx Mortgage, referring individually and
collectively to Xxxxxx and Nominee) shall continue to be required in accordance
with each of the terms of said Paragraph 20, with the sole exception that the
requirement that JMB Realty Corporation, a Delaware corporation ("JMB") or an
"affiliate" thereof retain at least a fifty-one percent (51%) direct or
indirect interest in and "control" of the Project is hereby amended to provide
that JMB or an "affiliate" thereof must retain at least a one-third interest
(33.33%) in Mortgagor and must continue to manage the Project in accordance with
the terms of that certain "Agreement for Purchase of Consulting and other
Services" by and between Urban Retail Properties Co., a Delaware corporation, as
Consultant, and Overseas Management, Inc., as manager, in the form previously
provided to Aetna (the "Consulting Agreement"), provided, however, that any
termination of such Consulting Agreement or any material change thereto which
occurs without the prior written consent of Aetna may, at Aetna's sole
discretion, constitute an Event of Default under the Xxxxxx Mortgage. Xxxxxx'x
agreement to the terms of this paragraph 10 is a condition to Aetna's consent to
the reduction of JMB's interests in Xxxxxx below the 51% threshold currently
in the Xxxxxx Mortgage, as modified, and Xxxxxx by its execution hereof
specifically acknowledges the terms and conditions of this paragraph 10. The
term "affiliate" as used in this paragraph 10 shall have the identical meaning
for such term used in said Paragraph 20 of the Xxxxxx Mortgage, as modified.
11. Amendment to Xxxxxx Deposit Agreement. The "Maximum Account Balance,"
as such term is defined in the Xxxxxx Deposit Agreement, is hereafter
established at $8,750,000.00, subject to further modification in writing agreed
to by each of the parties to this Agreement.
12. Notices. The Documents are hereby further modified to provide that the
address of Aetna is c/o The Aetna Casualty and Surety Company, Travelers
Insurance, Xxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000-0000, Attention: Real
Estate Investments, and that a copy of all notices given or furnished thereunder
shall be delivered to Xxxxx, Xxxxxxx & Xxxxxx, P.C., City place II, Xxxxxxxx,
Xxxxxxxxxxx 00000, Attention: Xxxxxxxx X. Xxxxx, Esq.
13. Waiver of Claims or Defenses. Each of the Documents, as modified, and
every provision, covenant, condition, obligation, right and power contained in
and under each of the Documents, as modified, shall continue in full force and
effect. As a material inducement to Aetna to enter into this Agreement, the
parties hereto other than Aetna each hereby acknowledge, admit, and agree that,
as of the date hereof, there exist no rights of offset, defense, counterclaim,
claim, or objection in favor of any of such parties against Aetna with respect
to any of the Documents, or, in the alternative, that any such defense,
counterclaim, claim, or objection which any or all of them may have or claim, of
any nature whatsoever, whether known or unknown, is hereby expressly and
irrevocably waived and released. Each of the parties hereto other than Aetna
hereby releases and forever discharges Aetna, its directors, officers,
employees, administrators, subsidiaries,
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affiliates, attorneys, agents, successors, and assigns from any and all rights,
claims, demands, actions, causes of action, suits, proceedings, agreements,
contracts, judgments, damages, debts, costs, expenses, promises, agreements,
duties, liabilities, or obligations, whether in law or in equity, known or
unknown, xxxxxx or inchoate, which they have had, now have, or hereafter may
have, arising under or in any manner relating to, whether directly or
indirectly, the Project, any Document or any transaction contemplated by any
Document or this Agreement, from the beginning of time until the date of full
execution and delivery hereof.
14. Costs and Expenses. Xxxxxx shall pay all costs, expenses and fees of
Aetna in connection with the negotiation, preparation and execution of this
Agreement Amendment Agreement including, without limitation, all reasonable
attorneys' fees and disbursements.
15. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute a single instrument.
16. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, provided, however, all
matters related to the Xxxxxx Mortgage or the mortgage securing the Xxxxxx
Equity Agreement shall be governed by the law of the Commonwealth of
Massachusetts.
17. Headings, etc. All headings and captions preceding the text of the
several paragraphs of this Agreement are intended solely for convenience of
reference and shall not constitute a part of this Agreement nor shall they
affect its meaning, construction or effect.
18. Scope of Modification. Except as expressly provided herein, 'no other
terms and provisions of the Documents shall be modified or changed by this
Agreement, and the terms and provisions of the Existing Repledge Documents (as
amended by this Agreement) and the Existing Collateral Documents (as amended by
this Agreement) shall continue in full force and effect.
19. Exculpation. Any obligations and liabilities of Xxxxxx hereunder shall
be subject to the exculpatory provisions set forth in paragraph 43 of the Xxxxxx
Mortgage, which exculpatory provisions shall be deemed for all purposes to
apply, in accordance with their terms, to Xxxxxx as a limited liability company
and to the members thereof.
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20. Successors and Assigns. All provisions of this Agreement
shall be effective on the date hereof, and shall be binding upon and inure to
the benefit of the respective heirs, legal representatives, successors and
assigns of the parties hereto.
XXXXXX FUNDING CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President
XXXXXX FINANCING CORPORATION
By: /s/ Xxxx Meadelson
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Name: Xxxx Meadelson
Title: President
XXXXXX PLACE ASSOCIATES NOMINEE CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President
THE AETNA CASUALTY AND SURETY COMPANY
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
XXXXXX PLACE ASSOCIATES, L.L.C., a Delaware limited liability company
By: JMB Realty Corporation, a Delaware corporation, Member
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
By: Overseas Partners Capital Corp., a Delaware corporation, Member
By: Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
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