1
EXHIBIT 10 (k)(4)(a)(iii)
AMENDMENT TO ENVIRONMENTAL INDEMNIFICATION AGREEMENT
FROM
XXXXX EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
2
--------------------------------------------------------------------------------
AMENDMENT TO ENVIRONMENTAL INDEMNIFICATION AGREEMENT
--------------------------------------------------------------------------------
THIS AMENDMENT TO ENVIRONMENTAL INDEMNIFICATION AGREEMENT (this
"Amendment") 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 under and as defined in that certain Second Amended and Restated
Revolving Credit Loan Agreement dated of even date herewith, as amended from
time to time, between Borrower and Agent (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
Borrower from time to time up to a maximum principal amount of $100,000,000 (the
"Loan").
2. As partial security for the Loan, Borrower provided the Original
Lenders with that certain Amended and Restated Deed to Secure Debt, Assignment
of Leases and Rents and Security Agreement dated as of December 29, 1997, and
recorded in Official Records Book 9767, page 002, of the public records of
DeKalb County, Georgia (the "Indenture"), wherein Borrower granted to the
Original Lenders a security interest in certain real property located in DeKalb
County, Georgia, and described therein (the "Property") as security for the
Loan.
3. As a condition precedent to and as a material inducement for the
Original Lenders' agreement to provide the Loan to Borrower, the Original
Lenders required Borrower to execute and deliver that certain Environmental
Indemnification Agreement
3
dated as of December 29, 1997 covering the Property (the "Environmental
Agreement"), which Environmental Agreement was assigned to Agent pursuant to
that certain Assignment of Deed to Secure Debt and Related Loan Documents of
even date herewith.
4. 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 Indenture.
The Agent and the other Original Lenders have agreed to such modifications,
provided, among other things, that the Environmental Agreement 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" or "Lenders"
as utilized in the Environmental Agreement shall hereinafter be deemed to refer
to First Union National Bank, as Agent for the Lenders under and as defined in
the Loan Agreement.
3. Additional Promissory Notes. All references to the term "Notes" as
utilized in the Environmental Agreement 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
the Lenders, as applicable.
4. Amendment to Loan Agreement. All references to the term "Loan
Agreement" as utilized in the Environmental Agreement 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 First Union
National Bank, as Agent for the Lenders. All references to the term "Loan" as
utilized in the Environmental Agreement shall hereinafter be deemed to refer to
the Loan evidenced by the Second Amended and Restated Loan Agreement.
5. Amended and Restated Indenture. All references to the term
"Indenture" as utilized in the Environmental Agreement shall hereinafter be
deemed to refer to that certain Second Amended and Restated Deed to Secure Debt,
Assignment of Leases and Security Agreement from Borrower to Agent of even date
herewith, and to be recorded in the public records of DeKalb County, Georgia.
2
4
6. Ratification. Except as herein expressly amended, the Environmental
Agreement is hereby ratified and confirmed and shall otherwise remain unchanged
and in full force and effect.
7. Capitalized Terms. All initial capitalized defined terms not defined
herein shall have the meanings assigned to them in the Environmental Agreement.
8. Counterparts. This Amendment may be executed in separate counterpart
signature pages, and all such counterparts taken together shall constitute but
one and the same instrument.
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
--------------------------------------
Unofficial Witness
By: /s/ G. Xxxxx Xxxxxxx
-----------------------------
Name: G. Xxxxx Xxxxxxx
/s/ Xxx Xxxxx ---------------------------
-------------------------------------- Title: Treasurer
Notary Public -------------------------
Attest: /s/ W. Xxxxxxxx Xxxxxxx
-------------------------
Name: W. Xxxxxxxx Xxxxxxx
---------------------------
Title: Secretary
------------------
My Commission Expires: Feb. 1, 1999
Public Notary, Camden County, GA [CORPORATE SEAL]
--------------------------------------
[NOTARY SEAL]
3
5
Signed, sealed and delivered in the
presence of: LENDER:
FIRST UNION NATIONAL BANK, a
/s/ Xxxx X. Xxxxxxxx, Xx. national association, as Agent
----------------------------------------
Unofficial Witness Xxxx X. Xxxxxxxx, Xx.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
/s/ Xxxxx Xxxxxxxx Name: /s/ J. Xxxxxx Xxxxxxxx
---------------------------------------- ----------------------------
Notary Public Title: Vice President
--------------------------
Attest: /s/ Xxxx X. Vermilva
My Commission Expires: September 3, 2000 -------------------------
Bonded Thru Notary Public Underwriters Name: Xxxx X. Vermilva
---------------------------------------- ---------------------------
[NOTARY SEAL] Title: Vice President Secretary
-----------------
[CORPORATE SEAL]
4
