EXHIBIT 4.1
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(Arvida)
AMENDMENT TO CREDIT AGREEMENT
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THIS AMENDMENT TO CREDIT AGREEMENT ("Amendment"), having an effective
date of the 1st day of September, 1998, by and between ARVIDA/JMB PARTNERS,
L.P., a Delaware limited partnership, ARVIDA/JMB PARTNERS, a Florida
general partnership, ARVIDA GRAND BAY LIMITED PARTNERSHIP IV, a Delaware
limited partnership, THE AOK GROUP, a Florida general partnership,
METRODRAMA JOINT VENTURE, a Florida general partnership, SOUTHEAST FLORIDA
HOLDINGS, INC., an Illinois corporation, GULF AND PACIFIC COMMUNICATIONS
LIMITED PARTNERSHIP, a Delaware limited partnership and WESTON HILLS
COUNTRY CLUB LIMITED PARTNERSHIP, a Delaware limited partnership (jointly
and severally, "Borrowers"), having an address of 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 and XXXXXXX BANK, N.A., as Agent for the
Lenders and as Lender, a national banking association, having an address of
Xxx Xxxx Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 ("Resigning
Agent") and joined in by all other Lenders as of the original execution
date of the Credit Agreement ("Other Original Lenders").
RECITALS:
(A) On July 31, 1997, Resigning Agent, the Other Original
Lenders and Borrowers entered into a Credit Agreement ("Credit Agreement")
as to a SEVENTY-FIVE MILLION DOLLARS ($75,000,000) Term Loan, a TWENTY
MILLION DOLLARS ($20,000,000) Revolving Line of Credit and a FIVE MILLION
DOLLARS ($5,000,000) Letter of Credit Facility (collectively "Loans").
(B) Borrowers have applied to Lenders for modification of the
Credit Agreement primarily (among other modifications) in order to (i)
effect a change in the Agent from Xxxxxxx Bank, N.A. as Resigning Agent to
First Union National Bank ("Successor Agent" or "First Union"); and (ii)
effect a change in the composition of the Lenders and in the Committed
Shares of the remaining Lenders.
(C) Borrowers, Resigning Agent and Successor Agent intend to
enter into this Amendment in order to amend the Credit Agreement
accordingly, joined in by the Other Original Lenders.
NOW THEREFORE, in consideration of the sum of TEN DOLLARS ($10.00)
and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, as well as the mutual covenants herein
contained, the parties hereto agree as follows:
1. RECITALS. The above recitals are true and correct and are
incorporated herein by this reference.
2. CAPITALIZED TERMS. Capitalized terms not defined herein shall
have the meaning ascribed to them in the Credit Agreement.
3. ASSIGNMENT, RESTATEMENT, CONSOLIDATION AND BIFURCATION OF
NOTES. Simultaneously with the execution of this Amendment, Xxxxxxx Bank,
N.A., BankBoston, N.A. and Bank United have assigned their respective Term
Loan Promissory Notes, Line of Credit Promissory Notes and the Demand Note
Letter of Credit Line Promissory Notes to First Union. As of the date
hereof, Resigning Agent and BankBoston, N.A. shall no longer be Lenders and
each shall be repaid the full balance of their respective actual Committed
Shares under the Loans (together with all accrued but unpaid interest
thereon) and Resigning Agent shall be paid all Facility Fees otherwise due
and owing to it as well as any due and owing administrative fees and other
amounts due and owing to Resigning Agent in its former capacity as Agent.
First Union has consolidated all such Term Loan Promissory
Notes with the Term Loan Promissory Note originally in favor of First Union
into a Consolidated and Restated Term Loan Note executed by Borrowers in
the original principal amount of $49,000,000 dated as of even date
herewith. First Union has consolidated all such Line of Credit Promissory
Notes with the Line of Credit Promissory Note originally in favor of First
Union into a Consolidated and Restated Line of Credit Promissory Note
executed by Borrowers in the original principal amount of $20,000,000
dated as of even date herewith. First Union has consolidated all such
Demand Note Letter of Credit Line Promissory Notes with the Demand Note
Letter of Credit Line Note originally in favor of First Union into a
Consolidated and Restated Demand Note Letter of Credit Promissory Note
executed by Borrowers in the original principal amount of $5,000,000 dated
as of even date herewith.
The Consolidated and Restated Term Loan Promissory Note, the
Consolidated and Restated Line of Credit Promissory Note, and the
Consolidated and Restated Demand Note Letter of Credit Line Promissory Note
(collectively, "Consolidated Notes") have been bifurcated by Borrowers
executing Bifurcation of Note Agreements dated of even date herewith,
bifurcating each of the three Consolidated Notes into two promissory notes
(for a total of 6 promissory notes). Of the two notes created by each
Bifurcation of Note Agreement, First Union has retained the promissory note
in the amount of its Committed Share, as modified below, so that First
Union is the holder of a Renewal Term Loan Promissory Note in the original
principal amount of $30,200,000, a Renewal Line of Credit Promissory Note
in the original principal amount of $12,320,000 and a Renewal Demand Note
Letter of Credit Line Promissory Note in the amount of $3,080,000, all
executed by Borrowers as of even date hereof (collectively, "First Union
Notes"). First Union has assigned the other three (3) promissory notes
created by bifurcation to Bank United in the amount of its Committed Share,
as modified below. Borrower has executed renewal promissory notes in favor
of Bank United so that Bank United is the holder of a Renewal Term Loan
Promissory Note in the original principal amount of $18,800,000, a Renewal
Line of Credit Promissory Note in the amount of $7,680,000 and a Renewal
Demand Note Letter of Credit Line Promissory Note in the amount of
$1,920,000, all executed by Borrowers as of even date hereof (collectively,
"Bank United Notes").
4. REVISIONS TO CREDIT AGREEMENT. Effective as of the date of
this Amendment, the Credit Agreement shall be modified specifically as
follows:
1. Section 1.1.25 of the Credit Agreement is amended so that
the Committed Shares of First Union and Bank United in each of the Loans
shall be as described on Revised Schedule 1.1.25 as attached hereto.
2. Section 1.1.44 of the Credit Agreement is amended to
provide that the term "Lenders" shall mean collectively Bank United, a
Federal savings bank and First Union National Bank, a national banking
association, each a Lender. Subject to the provisions set forth below in
this Paragraph 4 and in Paragraph 9 hereof: (i) as of the date hereof,
BankBoston, N.A. and Xxxxxxx Bank, N.A. are no longer Lenders; and (ii)
BankBoston, N.A. and Xxxxxxx Bank, N.A. are hereby released and discharged
from all of their obligations as Lenders under the Credit Agreement and the
other Loan Documents, provided that each of BankBoston, N.A. and Xxxxxxx
Bank, N.A. shall retain its rights to be indemnified pursuant to all
provisions of the Loan Documents pursuant to which the Borrowers have
agreed to indemnify the Lenders (including, without limitation, Section 12
of this Amendment), in each case with respect to any claims or actions
arising prior to the date hereof.
.
3. Section 1.1.57 of the Credit Agreement is amended to
provide that the term "Notes" shall mean the First Union Notes and the Bank
United Notes.
4. Section 1.1.72 of the Credit Agreement is deleted, and
any further references in the Credit Agreement to Super-Required Lenders
shall be deleted as well so that any reference to Super-Required Lenders
shall be construed as requiring no approval greater than that of the
Required Lenders as defined in Section 1.1.66 of the Credit Agreement.
5. Section 2.2.2 of the Credit Agreement is amended to
reflect that Requests for Advances shall be sent to:
First Union National Bank
0000 Xxxx Xxxxxxx Xxxx Xxxx., 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Portfolio Management Site Manager
6. Section 2.3.2 of the Credit Agreement is amended to
reflect that requests for issuance of a Letter of Credit shall be sent to:
First Union National Bank
0000 Xxxx Xxxxxxx Xxxx Xxxx., 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Portfolio Management Site Manager
7. Section 2.4.1 of the Credit Agreement is amended to
provide that the place of payment of all payments of principal, interest,
Facility Fees, late fees, expenses and other amounts made by or on behalf
of the Borrowers pursuant to the Credit Agreement, the Notes and the other
Loan Documents shall be as follows:
First Union National Bank
000X. Xxxxxxx Xxxxxx
XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxxx Xxxxxx (000) 000-0000
Wiring Instructions:
First Union National Bank
000 Xxxxx Xxxxxxx Xxxxxx
XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
ABA #000000000
Account No.465906 0000000
BNF: Arvida
Attn: Xxxx Xxxxxx
8. Section 2.10.3 of the Credit Agreement as to Notices is
amended as provided in Paragraph 10 of this Amendment.
9. Section 6.16 of the Credit Agreement dealing with
Operating Accounts of the Borrowers is amended to delete the reference to
Xxxxxxx Bank, N.A. and substitute First Union National Bank.
5. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES BY BORROWERS.
Except as to Sections 4.3.2 and 4.17.12 which shall not be subject to being
reaffirmed as of the date hereof (as provided in Section 6.6.4) and except
for date specific representations and warranties which shall be deemed
reaffirmed and updated as of the date hereof only if listed on the attached
index of updated Schedules, Borrowers hereby reaffirm each of the
representations and warranties made by Borrowers in Section 4 of the Credit
Agreement and Borrowers represent and warrant to Lenders that all such
representations and warranties are true, correct and complete on and as of
the date hereof. Borrowers hereby release Lenders and hold Lenders
harmless from any cause or causes of action which Borrowers have or could
have against Lenders relating to the Loan Documents or the indebtedness
evidenced and secured thereby until the date hereof. To the knowledge of
Borrowers, there currently exists, as of the date hereof, no breach or
default or event of default or event, that, with the passage of time or the
giving of notice or both, would constitute a breach or default or an event
of default under the Credit Agreement or Loan Documents, or constitute a
failure of a condition precedent to the continued effect of the Commitments
or to the funding of Advances or the issuance of any Letters of Credit
pursuant to the Credit Agreement.
6. CONDITIONS TO BE SATISFIED BY BORROWERS. Notwithstanding any
other provision of this Amendment or the Credit Agreement to the contrary
and without affecting in any manner the rights of the Agent or any Lender
hereunder, the Agent and all Lenders shall not be obligated to make any
further Advances or to issue any further Letters of Credit or take or
perform any other action under the Credit Agreement until the following
conditions have been fulfilled to the satisfaction of the Agent [and, to
the extent hereinbelow specified, of the Lenders]:
1. On or prior to the date hereof, Agent and Lenders have
received this Amendment duly executed and the other Loan Documents
described on Revised Schedule 5.1.3, all in form and substance
satisfactory to Agent and the Lenders, together with all other documents
required hereunder or otherwise reasonably required by Agent to be executed
and delivered or otherwise provided by Agent.
2. Borrowers have delivered to Agent an Endorsement to the
Mortgagee Title Insurance Policy No. 00-00-000000 issued by Lawyers Title
Insurance Corporation and changing the name of the Agent to First Union
National Bank. Borrowers have delivered to Agent current Ownership and
Encumbrance Reports on all property comprising the Mortgaged Properties.
3. Borrowers shall have delivered to Agent Certificates of
Good Standing and Authority To Do Business for each corporate and limited
partnership Subsidiary and Affiliate which is a Borrower or whose ownership
interests are to be assigned to Agent hereunder and, where applicable, for
each of their respective general partners, from the states of their
respective formation and qualification, certified by the Secretaries of
State of each such state and those documents listed in 5.1.6.2, 5.1.6.3 and
5.1.6. 4 of the Credit Agreement, updated as appropriate to reflect current
status (except for those entities which are no longer in existence as a
result of ceasing to do business as of the date hereof).
4. Borrowers shall have delivered to the Agent updated
Opinions of Counsel as set forth in 5.1.7.1 and 5.1.7.2 of the Credit
Agreement.
5. Borrowers shall have furnished Agent proof of payment of
real property and personal property taxes for 1997 against each of the
Mortgaged Properties and the other Collateral.
6. Borrowers shall have furnished UCC-11 searches and other
evidence satisfactory to Agent as to the status of liens with respect to
any of the Mortgaged Properties or other Collateral.
7. Borrowers shall have delivered to Agent updated Schedules
to the Credit Agreement as appropriate to reflect the status of the
Schedules as of the date hereof.
8. Borrowers shall have delivered to Agent evidence
satisfactory to Agent that Borrowers have obtained all consents and
acknowledgments of all persons whose consents and acknowledgments may be
required in connection herewith.
9. Borrowers shall have made payment in immediately
available funds to Agent for its account and the account of the Lenders,
as the case may be, of all Facility Fees and all other fees, costs and
expenses incurred in connection with this Amendment, including, without
limitation, legal counsel to Agent.
10. Borrowers shall have furnished to Agent current evidence
of insurance in the form and content otherwise required in the Credit
Agreement.
11. All financial covenants of Borrowers specified in Section
6.13 of the Credit Agreement are currently maintained by the Borrowers.
Borrowers acknowledge and agree that as of the date hereof, Borrowers have
no offsets, defenses or counterclaims as to any of the Loans, the Loan
Documents or the Obligations evidenced and secured thereby.
12. THIS PARAGRAPH INTENTIONALLY DELETED.
13. First Union, as Agent, reserves the right to accept any
Additional Property acquired by Borrowers as Collateral for the Obligations
since July 31, 1997, notwithstanding the completion of the modifications
referred to in Recital (B) hereof has occurred.
7. RESIGNATION BY XXXXXXX BANK, N.A. AS AGENT AND APPOINTMENT OF
FIRST UNION NATIONAL BANK AS AGENT. Section 10.1 of the Credit Agreement
is amended to provide that Xxxxxxx Bank, N.A. hereby resigns its rights and
obligations as Agent under the Credit Agreement in accordance with Section
10.7 of the Credit Agreement. First Union is hereby duly appointed as
Agent and First Union hereby accepts appointment as Agent. All Original
Lenders and Borrowers hereby reaffirm Section 10.7 of the Credit Agreement
which provides that as to Xxxxxxx Bank, N.A. resigning as Agent, the
provisions of Section 10 of the Credit Agreement (including, without
limitation, Sections 10.1.1, 10.1.4, 10.2, 10.4, 10.5, 10.10.1 and 11.7 of
the Credit Agreement) shall survive its resignation as Agent and continue
to be in effect for its benefit in respect of any actions taken or admitted
to be taken by Xxxxxxx Bank, N.A. while it was acting as Agent.
8. ASSIGNMENT OF RIGHTS AND OBLIGATIONS AS AGENT. Xxxxxxx Bank,
N.A. hereby assigns all its right, title and interest in and to the
following unrecorded documents as "Agent" (and as to documents, d., f. and
g. below as "Proxy Holder") to First Union National Bank (and First Union
National Bank hereby accepts) such assignment (simultaneously herewith,
Xxxxxxx Bank, N.A. and BankBoston, N.A. each are executing in favor of
First Union an Absolute Assignment of Mortgages and Other Documents to be
recorded in various Public Records):
1. Security Agreement dated July 31, 1997 executed by
Borrowers;
[SPACE INTENTIONALLY LEFT BLANK]
2. Collateral Assignment of Construction Contracts dated
July 31, 1997 executed by Borrowers;
3. Subordination and Intercreditor Agreement dated July 31,
1997 executed by Borrowers;
4. Limited Partnership Pledge Agreement dated July 31, 1997
executed by Arvida/JMB Partners, L.P.;
5. Stock Pledge Agreement dated July 31, 1997 executed by
Arvida/JMB Partners, L.P.;
6. General Partnership Pledge Agreement dated July 31, 1997
executed by Arvida/JMB Partners, L.P.; and
7. General Partnership Pledge Agreement dated July 31, 1997
executed by Arvida/JMB Partners, L.P.
9. ASSIGNMENT OF RIGHTS AND OBLIGATIONS AS LENDER. Effective on
and as of the date of this Amendment, each of BankBoston, N.A. and Xxxxxxx
Bank, N.A. (each an "Assignor" and together the "Assignors") hereby
irrevocably sells, transfers and assigns to First Union National Bank (the
"Assignee"), without recourse, and the Assignee hereby purchases and
acquires from each of the Assignors, respectively, all of such Assignor's
right, title and interest in and to the Term Loan Promissory Notes, Line of
Credit Promissory Notes, Demand Note Letter of Credit Line Promissory
Notes, the Loans and all other obligations of the Borrower under and in
respect of the Credit Agreement and each of the other Loan Documents
(collectively, the "Assigned Rights") and Assignee hereby assumes all
obligations accruing as of the date of this Amendment arising from the
Assigned Rights. Upon the execution of this Amendment by the parties
hereto, as full consideration for the sale, transfer and assignment by the
Assignors to the Assignee of the Assigned Rights, the Assignee shall pay to
the Assignors, respectively, the amount of all obligations owing to such
Assignor in respect of the Assigned Rights as set forth more fully in the
Lender's Estoppel Certificate executed and delivered by such Assignor to
the Assignee and the Borrowers in connection with this Amendment, in each
case in immediately available funds, by wire transfer of that amount as
instructed by such Assignor.
Effective on and as of the date hereof, each Assignor is hereby
expressly and absolutely released from all of such Assignor's obligations
arising under the Credit Agreement and each of the other Loan Documents
arising as of the date of this Amendment, including, without limitation,
such Assignor's obligations to make Advances as contemplated in the Credit
Agreement. Borrowers and all Original Lenders hereby acknowledge and agree
that other than as expressly set forth herein and in the related assignment
documentation, the Assignors make no representation or warranty, express or
implied, and assume no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit
Agreement, the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, the other Loan Documents or
any other document or instrument furnished pursuant thereto, the
attachment, perfection or priority of any security interest or mortgage or
the financial condition of the Borrowers or any other person primarily or
secondarily liable of the Assigned Rights.
10. YEAR 2000 COMPATIBILITY. Borrowers shall take all action
reasonably necessary to assure that Borrowers' computer based systems will
be able to operate and process data including dates on and after January 1,
2000 so that there will not be a material adverse effect on the business
operations of Borrowers. At the request of Lender, Borrowers shall provide
Agent with evidence reasonably acceptable to Lender of Borrowers'
compliance with the preceding sentence no later than December 1, 1999.
Attached hereto as Exhibit A is a Year 2000 Questionnaire for completion by
Borrowers.
11. NOTICES. Notwithstanding any provisions to the contrary
contained in the other Loan Documents, all notices, requests and demands to
or upon the Agent and any Borrower party to this Agreement, pursuant to any
Loan Document, shall be deemed to have been given or made when delivered by
hand, delivered by nationally recognized overnight courier service next
Business Day delivery, delivered by telecopy (upon confirmation of receipt
received on a Business Day), or three (3) Business Days after deposit in
the U.S. mail, postage prepaid by registered or certified mail, return
receipt requested, addressed as follows or to such other address as may be
hereafter designated in writing by one party to the other:
[SPACE INTENTIONALLY LEFT BLANK]
To Borrowers: c/o Arvida/JMB Partners, L.P.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xx. Xxxxxxx X. Xxxxxxxxx
Telecopy No. (000) 000-0000
with a copy to: White & Case
000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: H. Xxxxxxx Xxxxxx, Jr., Esq.
Telecopy No. (000) 000-0000
and with a copy to: Arvida Company
0000 Xxxxxx Xxxx, 0xx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxx, Esq.
Telecopy No. (000) 000-0000
To Agent and First Union National Bank
Lender: 0000 Xxxx Xxxxxxx Xxxx Xxxx., 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxx, Vice President
Telecopy No. (000) 000-0000
with a copy to: Xxxxx X. Xxxxxx, Esquire
Xxxxx, McClosky, Smith,
Xxxxxxxx & Xxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Telecopy No. (000) 000-0000
12. LIABILITY FOR DOCUMENTARY STAMPS AND INTANGIBLE TAXES.
Borrowers agree to pay any and all documentary stamps and/or intangible
taxes and all interest and penalties associated therewith which may be
assessed on account of the transactions set forth in Paragraph 3 of this
Amendment, if any. Borrowers shall pay such sums immediately upon receipt
of notice of such amounts from Agent. In the event Borrowers fail to pay
such sums, Agent may, at its option, pay such taxes and/or documentary
stamps. Any such payment by Agent shall be added to the Obligations of
Borrowers and shall bear interest from the date advanced to the date of
recovery at the Default Rate. If Borrowers fail to pay any and all
documentary stamps and/or intangible taxes and any interest and penalties
associated therewith which may be assessed on account of the transactions
set forth in Paragraph 3 of this Amendment, it shall be deemed to be a
default by Borrowers under the Loans hereof.
13. NO CHANGE IN PRIORITY. The parties hereto intend that this
Amendment shall not disturb the existing priority of the Mortgages and
other Loan Documents. The parties hereto further intend that this
Amendment shall not constitute a novation and shall in no way adversely
affect or impair the lien priority of the Mortgages and other Loan
Documents. Borrowers agree to cooperate with Agent so that the interests
of Lenders are fully protected and the intent of this Amendment can be
effectuated.
14. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF BORROWERS.
Borrowers represent and warrant to Lender as follows:
1. All representations and warranties of the Borrowers
contained in this Amendment are true and correct.
2. Borrowers have no intention of filing any petition or
initiating any bankruptcy proceedings.
3. Borrowers have not entered into this Amendment and the
transactions contemplated hereby to provide preferential treatment to Agent
or Lenders or any other creditor of Borrowers in anticipation of seeking
relief under the federal or any state bankruptcy code or similar law, nor
have Borrowers entered into this Amendment and the transactions
contemplated hereby with the intent to hinder, delay or defraud any
creditors of Borrowers.
4. Each of the Borrowers has the full capacity, right, power
and authority to execute, deliver and perform this Amendment and all
documents to be executed by it pursuant hereto, and all formal
requirements necessary or required by any statutes, laws, ordinances,
codes, rules, regulations, orders, decrees, directives, partnership
agreements, articles of incorporation, charters or by-laws to enter into
this Amendment have been fully complied with. The individuals signing this
Amendment and all other documents executed pursuant hereto on behalf of the
Borrowers are duly authorized to sign the same on behalf of the Borrower.
The provisions of this Amendment are and shall be legal, valid and binding
upon and enforceable against the Borrowers in accordance with their
respective terms.
5. This Amendment shall not be construed more strictly
against either party by virtue of the preparation hereof.
6. Borrowers hereby agree to execute and deliver any and all
documents as may be reasonably required by Agent at any time in order to
carry out the terms of this Amendment and give effect thereto.
15. CONFLICT AND RATIFICATION. The terms of this Amendment shall
control in the event of a conflict between the provisions hereof and the
provisions of the Credit Agreement. Except as specifically amended by this
Amendment, the terms, covenants and conditions of the Credit Agreement are
hereby ratified and confirmed by Borrowers and all Original Lenders and
remain in full force and effect.
16. COUNTERPARTS. This Amendment may be executed and delivered by
one or more of the parties hereto on any number of separate counterparts
and all of such counterparts taken together shall be deemed to constitute
one and the same instrument.
17. WAIVER OF JURY TRIAL
BORROWERS AND ALL ORIGINAL LENDERS HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND ALL RIGHT THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO,
ANY CLAIMS, CROSS-CLAIMS OR THIRD-PARTY CLAIMS) ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AMENDMENT TO CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREIN. BORROWERS HEREBY
CERTIFY THAT NO REPRESENTATIVE OR AGENT OF THE LENDERS NOR THE LENDERS'
COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE LENDERS WOULD
NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT
TO JURY TRIAL PROVISION. BORROWERS ACKNOWLEDGE THAT THE LENDERS HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS
PARAGRAPH.
IN WITNESS WHEREOF, the parties have duly executed this Amendment to
Credit Agreement the day and year first above written.
WITNESSES: BORROWERS:
ARVIDA/JMB PARTNERS, L.P.,
Signature a Delaware limited partnership
Printed Name By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
its sole general partner
Signature
By: /S/ XXXXXXX X. XXXXXXXXX
Printed Name Xxxxxxx X. Xxxxxxxxx, Vice President
[CORPORATE SEAL]
ARVIDA/JMB PARTNERS,
Signature a Florida general partnership
Printed Name By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, a general partner
Signature
By: /S/ XXXXXXX X. XXXXXXXX
Printed Name Xxxxxxx X. Xxxxxxxxx, Vice President
[CORPORATE SEAL]
ARVIDA GRAND BAY LIMITED PARTNERSHIP IV,
Signature a Delaware limited partnership
Printed Name By: ARVIDA GRAND BAY MANAGERS, INC.,
a Delaware corporation,
its sole general partner
Signature
By: /S/ XXXXXXX X. XXXXXXXXX
Printed Name Xxxxxxx X. Xxxxxxxxx, Vice President
[CORPORATE SEAL]
THE AOK GROUP,
Signature a Florida general partnership
Printed Name By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership,
a general partner
Signature
By: ARVIDA/JMB MANAGERS, INC.,
Printed Name a Delaware corporation,
its sole general partner
By: /S/ XXXXXXX X. XXXXXXXXX
Xxxxxxx X. Xxxxxxxxx, Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS,
Signature a Florida general partnership,
a general partner
Printed Name By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
Signature
By: /S/ XXXXXXX X. XXXXXXXXX
Printed Name Xxxxxxx X. Xxxxxxxxx, Vice President
[CORPORATE SEAL]
METRODRAMA JOINT VENTURE,
Signature a Florida general partnership
Printed Name By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership,
a general partner
Signature
By: ARVIDA/JMB MANAGERS, INC.,
Printed Name a Delaware corporation,
its sole general partner
By: /S/ XXXXXXX X. XXXXXXXXX
Xxxxxxx X. Xxxxxxxxx, Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS,
Signature a Florida general partnership,
a general partner
Printed Name By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, a general partner
Signature
By: /S/ XXXXXXX X. XXXXXXXXX
Printed Name Xxxxxxx X. Xxxxxxxxx, Vice President
[CORPORATE SEAL]
SOUTHEAST FLORIDA HOLDINGS, INC.,
Signature an Illinois corporation
Printed Name By: /S/ XXXXXXX X. XXXXXXXXX
Xxxxxxx X. Xxxxxxxxx, Vice President
Signature
[CORPORATE SEAL]
Printed Name
GULF AND PACIFIC COMMUNICATIONS LIMITED,
Signature PARTNERSHIP, a Delaware limited partnership
Printed Name By: PACIFIC PROPERTIES, INC.,
an Illinois corporation,
its sole general partner
Signature
By: /S/ XXXXXXX X. XXXXXXXXX
Printed Name Xxxxxxx X. Xxxxxxxxx, Vice President
[CORPORATE SEAL]
WESTON HILLS COUNTRY CLUB LIMITED
Signature PARTNERSHIP, a Delaware limited partnership
Printed Name By: WHCC, INC.,
an Illinois corporation, its general partner
Signature
By: /S/ XXXXXXX X. XXXXXXXXX
Printed Name Xxxxxxx X. Xxxxxxxxx, Vice President
[CORPORATE SEAL]
SUCCESSOR AGENT:
FIRST UNION NATIONAL BANK,
a national banking association
By:
Printed Name:
Title:
Printed Name
Signature
Printed Name
RESIGNING AGENT:
XXXXXXX BANK, N.A., a national banking association
By:
Signature Printed Name:
Title:
Printed Name
Signature
Printed Name
LENDERS:
FIRST UNION NATIONAL BANK,
a national banking association
By:
Signature Printed Name:
Title:
Printed Name
XXXXXXX BANK, N.A., a national banking
association
By:
Name:
Title:
BANKBOSTON, N.A., a national banking association
By:
Name:
Title:
BANK UNITED, a federal savings bank
By:
Name:
Title:
REVISED SCHEDULE 1.1.25
Committed Shares
First Union National Bank: 61.0000000%
Bank United: 38.3783783%
Return to: (enclose self-addressed stamped envelope)
ASSIGNMENT OF MORTGAGE FROM CORPORATION
Name: Xxxxxxx X. Xxxxxx
Address:
X.X. Xxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
This Instrument Prepared by: Xxxxx X. Xxxxxx, Esq.
Address:
Xxxxx, McClosky, Smith,
Xxxxxxxx & Xxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
ABSOLUTE ASSIGNMENT OF MORTGAGES
AND OTHER DOCUMENTS
BANKBOSTON, N.A., a national banking association, having
an address of 000 Xxxxxxxxx Xxxxxx Xxxxx, XX, Xxxxx 000, Xxxxxxx, Xxxxxxx
00000 (hereinafter called the "Assignor"), for the consideration of TEN
DOLLARS ($10.00) and other good and valuable consideration, receipt of
which is hereby acknowledged, does hereby grant, bargain, sell, assign,
transfer and set over without recourse unto and in favor of FIRST UNION
NATIONAL BANK, a national banking association, its successors and assigns,
having an address of 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx, 0xx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter called the "Assignee") (as Successor
Agent for the "Lenders" identified in the Amendment to Credit Agreement
dated on or about even date hereof), all of the rights, title and interest
of the Assignor in and to the following:
(a) All those certain Mortgage and Security Agreements
more particularly described on Exhibit AA attached hereto and made a part
hereof;
(b) All those certain Assignments of Rents and Leases
more particularly described on Exhibit AB attached hereto and made a part
hereof;
(c) All those certain UCC-1 Financing Statements more
particularly described on Exhibit AC attached hereto and made a part
hereof;
(d) Concurrently with the execution of this Absolute
Assignment of Mortgages and Other Documents, Assignor has endorsed, without
recourse and without representation or warranty except as may be
specifically provided herein, to Assignee that certain Term Loan Promissory
Note in the original principal amount of $11,250,000, that certain Line of
Credit Promissory Note in the original principal amount of $3,000,000 and
that certain Demand Note Letter of Credit Line Promissory Note in the
original principal amount of $750,000, all dated July 31, 1997
(collectively "Notes") and the monies due and to become due thereunder,
with interest from the1st day of September, 1998.
TO HAVE AND TO HOLD the same unto Assignee, its
successors and assigns forever.
1. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNOR.
(a) This Absolute Assignment of Mortgages and Other
Documents ("Assignment") is being made without recourse, and except as to
Assignor's Estoppel Certificate dated on or about even date hereof in favor
of Assignee and except in Paragraph 1(b) below, without representation or
warranty of any kind, including, but not limited to, the enforceability or
collectibility of the Notes and Mortgage.
(b) The Assignor hereby represents and warrants to the Assignee
that: (i) the Assignor has full legal right, power and authority to
execute and deliver this Assignment and to consummate all of the
transaction contemplated herein; (ii) this Assignment constitutes the
authorized, valid and legally binding obligation of the Assignor
enforceable in accordance with its terms; (iii) the person who has executed
this Assignment is fully and lawfully authorized and empowered to cause the
Assignor to enter into and consummate this Assignment; and (iv) no further
consent, approval, authorization or order of Assignor is required to
consummate the transactions contemplated by this Assignment.
2. FURTHER ASSURANCES
The Assignor, for itself and its successors and assigns, further
covenants and agrees that it will, at any time and from time to time after
the date hereof upon the written request of the Assignee, execute and
deliver such further instruments of conveyance, transfer, notice, consent
or otherwise and take such other action as may reasonably be required or
advisable to evidence, or give effect to, the rights granted to the
Assignee pursuant to this Assignment and to effectively convey, transfer
and vest in the Assignee full and complete title in the Mortgages and Other
Loan Documents.
3. SUCCESSORS; NO ORAL MODIFICATION
This Assignment shall inure to the benefit of the Assignee and each
of its successors and assigns and is binding upon the Assignor and each of
its respective successors or assigns and may not be modified or terminated
except by a written agreement signed by the parties hereto.
4. GOVERNING LAW; PREVAILING PARTY
This Assignment shall be governed by, and construed in accordance
with, the laws of the State of Florida. In the event that any litigation
arises out of the execution and implementation of this Assignment, the
prevailing party shall be entitled to recover all costs incurred, including
reasonable attorneys' fees, at all levels of legal proceedings.
5. PARTIAL INVALIDITY
If part of this Assignment is contrary to, prohibited by or deemed
invalid under applicable laws or regulations, such part shall be
inapplicable and deemed omitted to the extent contrary, prohibited or
invalid, but the remainder of this Assignment shall not be invalidated
thereby and shall be given effect so far as is possible.
IN WITNESS WHEREOF, the Assignor has hereunto set its hand and seal
effective as of the 1st day of September, 1998.
Signed, sealed and delivered
in the presence of : BANKBOSTON, N.A., a national banking
association
By:
Signature
Title:
Print Name
(CORPORATE SEAL)
Signature
Print Name
STATE OF FLORIDA )
) ss:
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
, the of BANKBOSTON, N.A., a
national banking association, freely and voluntarily under authority duly
vested in him/her by said BankBoston, N.A. and that the seal affixed
thereto is the true corporate seal of said BankBoston, N.A. He/She is
personally known to me or who has produced as
identification.
WITNESS my hand and official seal in the County and State last
aforesaid this day of , 1998 .
Notary Public
Typed, printed or stamped name of Notary Public
My Commission Expires:
EXHIBIT A
Mortgage and Security Agreements
1. Mortgage and Security Agreement recorded on August 4, 1997, in
the Public Records of Broward County, Florida, in Official Records Book
26802, Page 888.
2. Mortgage and Security Agreement recorded on August 5, 1997, in
the Public Records of Palm Beach County, Florida, in Official Records Book
9922, Page 111.
3. Mortgage and Security Agreement recorded on August 6, 1997, in
the Public Records of Xxxxxx County, Florida, in Official Records Book
2395, Page 1799.
4. Mortgage and Security Agreement recorded on August 5, 1997, in
the Public Records of Sarasota County, Florida, in Official Records Book
2999, Page 123.
5. Mortgage and Security Agreement recorded on August 5, 1997, in
the Public Records of Xxxxx County, Florida, in Official Records Book 8690,
Page 1239.
6. Mortgage and Security Agreement recorded on August 5, 1997, in
the Public Records of St. Xxxxx County, Florida, in Official Records Book
1255, Page 1534.
7. Mortgage and Security Agreement recorded on August 5, 1997, in
the Public Records of Hillsborough County, Florida, in Official Records
Book 8663, Page 1655.
EXHIBIT B
Assignment of Rents and Leases
1. Assignment of Rents and Leases recorded on August 4, 1997, in
the Public Records of Broward County, Florida, in Official Records Book
26803, Page 1.
2. Assignment of Rents and Leases recorded on September 5, 1997,
in the Public Records of Palm Beach County, Florida, in Official Records
Book 9973, Page 16.
3. Assignment of Rents and Leases recorded on August 6, 1997, in
the Public Records of Xxxxxx County, Florida, in Official Records Book
2396, Page 1.
4. Assignment of Rents and Leases recorded on August 5, 1997, in
the Public Records of Sarasota County, Florida, in Official Records Book
2999, Page 284.
5. Assignment of Rents and Leases recorded on August 5, 1997, in
the Public Records of Xxxxx County, Florida, in Official Records Book 8690,
Page 1400.
6. Assignment of Rents and Leases recorded on August 5, 1997, in
the Public Records of St. Xxxxx County, Florida, in Official Records Book
1255, Page 1695.
7. Assignment of Rents and Leases recorded on August 5, 1997, in
the Public Records of Hillsborough County, Florida, in Official Records
Book 8663, Page 1816.
EXHIBIT C
UCC-1 Financing Statements
1. UCC-1 Financing Statement filed with the Public Records of
Broward County, Florida, in Official Records Book 26803, Page 152.
2. UCC-1 Financing Statement filed with the Public Records of Palm
Beach County, Florida, in Official Records Book 9922, Page 404.
3. UCC-1 Financing Statement filed with the Public Records of
Xxxxxx County, Florida, in Official Records Book 2396, Page 152.
4. UCC-1 Financing Statement recorded in the Public Records of
Sarasota County, Florida, in Official Records Book 3010, Page 1877.
5. UCC-1 Financing Statement filed with the Public Records of
Xxxxx County, Florida, in Official Records Book 8690, Page 1551.
6. UCC-1 Financing Statement filed with the Public Records of St.
Xxxxx County, Florida, in Official Records Book 1255, Page 1846.
7. UCC-1 Financing Statement filed with the Public Records of
Hillsborough County, Florida, in Official Records Book 8663, Page 1967.
Return to: (enclose self-addressed stamped envelope)
ASSIGNMENT OF MORTGAGE FROM CORPORATION
Name: Xxxxxxx X. Xxxxxx
Address:
X.X. Xxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
This Instrument Prepared by: Xxxxx X. Xxxxxx, Esq.
Address:
Xxxxx, McClosky, Smith,
Xxxxxxxx & Xxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
ABSOLUTE ASSIGNMENT OF MORTGAGES
AND OTHER DOCUMENTS
XXXXXXX BANK, N.A., a national banking association, as a
Lender and as Resigning Agent, having an address of Xxx Xxxx Xxxxxxx
Xxxxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter called the
"Assignor"), for the consideration of TEN DOLLARS ($10.00) and other good
and valuable consideration, receipt of which is hereby acknowledged, does
hereby grant, bargain, sell, assign, transfer and set over without recourse
unto and in favor of FIRST UNION NATIONAL BANK, a national banking
association, its successors and assigns, having an address of 0000 Xxxx
Xxxxxxx Xxxx Xxxxxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter
called the "Assignee") (as Successor Agent for the "Lenders" identified in
the Amendment to Credit Agreement dated on or about even date hereof), all
of the rights, title and interest of the Assignor in and to the following:
(a) All those certain Mortgage and Security Agreements
more particularly described on Exhibit AA attached hereto and made a part
hereof;
(b) All those certain Assignments of Rents and Leases
more particularly described on Exhibit AB attached hereto and made a part
hereof;
(c) All those certain UCC-1 Financing Statements more
particularly described on Exhibit AC attached hereto and made a part
hereof;
(d) All rights, title and interests of Assignor as
"Agent" under the Mortgages and Security Agreements identified on Exhibit
AA hereto, under the Assignments of Rents and Leases identified on Exhibit
AB hereto, under the UCC-1 Financing Statements identified on Exhibit AC
hereto, and under that certain SWAP Agreement as described in the Mortgages
and Security Agreements. The Mortgage and Security Agreements and the
other loan documents described on Exhibit AA, Exhibit AB and Exhibit AC are
referred to hereafter as "Mortgages and Other Loan Documents."
Concurrently with the execution of this Absolute Assignment of Mortgages
and Other Documents, Assignor has endorsed, without recourse and without
representation or warranty except as may be specifically provided herein,
to Assignee that certain Term Loan Promissory Note in the original
principal amount of $28,125,000, that certain Line of Credit Promissory
Note in the original principal amount of $7,500,000 and that certain Demand
Note Letter of Credit Line Promissory Note in the original principal amount
of $1,875,000, all dated July 31, 1997 (collectively "Notes") and the
monies due and to become due thereunder, with interest from the 1st day of
September, 1998.
TO HAVE AND TO HOLD the same unto Assignee, its
successors and assigns forever.
1. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNOR.
(a) This Absolute Assignment of Mortgages and Other
Documents ("Assignment") is being made without recourse, and except as to
Assignor's Estoppel Certificate dated on or about even date hereof in favor
of Assignee and except in Paragraph 1(b) below, without representation or
warranty of any kind, including, but not limited to, the enforceability or
collectibility of the Notes and Mortgage.
(b) The Assignor hereby represents and warrants to the Assignee
that: (i) the Assignor has full legal right, power and authority to
execute and deliver this Assignment and to consummate all of the
transaction contemplated herein; (ii) this Assignment constitutes the
authorized, valid and legally binding obligation of the Assignor
enforceable in accordance with its terms; (iii) the person who has executed
this Assignment is fully and lawfully authorized and empowered to cause the
Assignor to enter into and consummate this Assignment; and (iv) no further
consent, approval, authorization or order of Assignor is required to
consummate the transactions contemplated by this Assignment.
2. FURTHER ASSURANCES
The Assignor, for itself and its successors and assigns, further
covenants and agrees that it will, at any time and from time to time after
the date hereof upon the written request of the Assignee, execute and
deliver such further instruments of conveyance, transfer, notice, consent
or otherwise and take such other action as may reasonably be required or
advisable to evidence, or give effect to, the rights granted to the
Assignee pursuant to this Assignment and to effectively convey, transfer
and vest in the Assignee full and complete title in the Mortgages and Other
Loan Documents.
3. SUCCESSORS; NO ORAL MODIFICATION
This Assignment shall inure to the benefit of the Assignee and each
of its successors and assigns and is binding upon the Assignor and each of
its respective successors or assigns and may not be modified or terminated
except by a written agreement signed by the parties hereto.
4. GOVERNING LAW; PREVAILING PARTY
This Assignment shall be governed by, and construed in accordance
with, the laws of the State of Florida. In the event that any litigation
arises out of the execution and implementation of this Assignment, the
prevailing party shall be entitled to recover all costs incurred, including
reasonable attorneys' fees, at all levels of legal proceedings.
5. PARTIAL INVALIDITY
If part of this Assignment is contrary to, prohibited by or deemed
invalid under applicable laws or regulations, such part shall be
inapplicable and deemed omitted to the extent contrary, prohibited or
invalid, but the remainder of this Assignment shall not be invalidated
thereby and shall be given effect so far as is possible.
IN WITNESS WHEREOF, the Assignor has hereunto set its hand and seal
effective as of the 1st day of September, 1998.
Signed, sealed and delivered
in the presence of : XXXXXXX BANK, N.A.,
a national banking association
By:
Signature
Title:
Print Name
(CORPORATE SEAL)
Signature
Print Name
STATE OF FLORIDA )
) ss:
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
, the of XXXXXXX BANK, N.A., a
national banking association, freely and voluntarily under authority duly
vested in him/her by said Xxxxxxx Bank, N.A. and that the seal affixed
thereto is the true corporate seal of said Xxxxxxx Bank, N.A. He/She is
personally known to me or who has produced as
identification.
WITNESS my hand and official seal in the County and State last
aforesaid this day of , 1998 .
Notary Public
Typed, printed or stamped name of Notary Public
My Commission Expires:
EXHIBIT A
Mortgage and Security Agreements
1. Mortgage and Security Agreement recorded on August 4, 1997, in
the Public Records of Broward County, Florida, in Official Records Book
26802, Page 888.
2. Mortgage and Security Agreement recorded on August 5, 1997, in
the Public Records of Palm Beach County, Florida, in Official Records Book
9922, Page 111.
3. Mortgage and Security Agreement recorded on August 6, 1997, in
the Public Records of Xxxxxx County, Florida, in Official Records Book
2395, Page 1799.
4. Mortgage and Security Agreement recorded on August 5, 1997, in
the Public Records of Sarasota County, Florida, in Official Records Book
2999, Page 123.
5. Mortgage and Security Agreement recorded on August 5, 1997, in
the Public Records of Xxxxx County, Florida, in Official Records Book 8690,
Page 1239.
6. Mortgage and Security Agreement recorded on August 5, 1997, in
the Public Records of St. Xxxxx County, Florida, in Official Records Book
1255, Page 1534.
7. Mortgage and Security Agreement recorded on August 5, 1997, in
the Public Records of Hillsborough County, Florida, in Official Records
Book 8663, Page 1655.
EXHIBIT B
Assignment of Rents and Leases
1. Assignment of Rents and Leases recorded on August 4, 1997, in
the Public Records of Broward County, Florida, in Official Records Book
26803, Page 1.
2. Assignment of Rents and Leases recorded on September 5, 1997,
in the Public Records of Palm Beach County, Florida, in Official Records
Book 9973, Page 16.
3. Assignment of Rents and Leases recorded on August 6, 1997, in
the Public Records of Xxxxxx County, Florida, in Official Records Book
2396, Page 1.
4. Assignment of Rents and Leases recorded on August 5, 1997, in
the Public Records of Sarasota County, Florida, in Official Records Book
2999, Page 284.
5. Assignment of Rents and Leases recorded on August 5, 1997, in
the Public Records of Xxxxx County, Florida, in Official Records Book 8690,
Page 1400.
6. Assignment of Rents and Leases recorded on August 5, 1997, in
the Public Records of St. Xxxxx County, Florida, in Official Records Book
1255, Page 1695.
7. Assignment of Rents and Leases recorded on August 5, 1997, in
the Public Records of Hillsborough County, Florida, in Official Records
Book 8663, Page 1816.
EXHIBIT C
UCC-1 Financing Statements
1. UCC-1 Financing Statement filed with the Public Records of
Broward County, Florida, in Official Records Book 26803, Page 152.
2. UCC-1 Financing Statement filed with the Public Records of Palm
Beach County, Florida, in Official Records Book 9922, Page 404.
3. UCC-1 Financing Statement filed with the Public Records of
Xxxxxx County, Florida, in Official Records Book 2396, Page 152.
4. UCC-1 Financing Statement recorded in the Public Records of
Sarasota County, Florida, in Official Records Book 3010, Page 1877.
5. UCC-1 Financing Statement filed with the Public Records of
Xxxxx County, Florida, in Official Records Book 8690, Page 1551.
6. UCC-1 Financing Statement filed with the Public Records of St.
Xxxxx County, Florida, in Official Records Book 1255, Page 1846.
7. UCC-1 Financing Statement filed with the Public Records of
Hillsborough County, Florida, in Official Records Book 8663, Page 1967.
SPACE ABOVE LINE FOR RECORDER'S USE
Please record and return to: CROSS-REFERENCES:
Xxxxx X. Xxxxxx, Esq.
Ruden, McClosky, Xxxxx Deed to Secure Debt and Security
Agreement
Xxxxxxxx & Xxxxxxx, P.A. recorded in Deed Book 9559, Page 124,
000 Xxxx Xxxxxxx Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxxxx Records
00xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000 Assignment of Rents and Leases,
recorded
in Deed Book 9559, Page 275, aforesaid
records
UCC-2 Notice Filing for Real Estate
Related
Collateral, recorded in Deed Book 9559,
Page 416, aforesaid records
ABSOLUTE ASSIGNMENT OF
DEED TO SECURE DEBT AND OTHER DOCUMENTS
XXXXXXX BANK, N.A. as Resigning Agent and as a Lender, a national
banking association, having an address of Xxx Xxxx Xxxxxxx Xxxxxxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter called the "Assignor"), for the
consideration of TEN AND NO/100 DOLLARS ($10.00) and other good and
valuable consideration, the receipt of which is hereby acknowledged, does
hereby grant, bargain, sell, assign, transfer and set over without recourse
unto and in favor of FIRST UNION NATIONAL BANK, a national banking
association, its successors and assigns, having an address of 0000 Xxxx
Xxxxxxx Xxxx Xxxxxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter
called the "Assignee"), (As Successor Agent for the "Lenders" identified in
the Amendment to the Credit Agreement dated on or about even date hereof),
all of the rights, title and interest of the Assignor in and to the
following:
(a) That certain Deed to Secure Debt and Security Agreement, more
particularly described on Exhibit AA attached hereto and made a part hereof
(the "Security Deed");
(b) That certain Assignment of Rents and Leases, more particularly
described on Exhibit AB attached hereto and made a part hereof;
(c) Those certain UCC-1 Financing Statements, more particularly
described on Exhibit AC attached hereto and made a part hereof; and
(d) That certain UCC-2 Notice Filing for Real Estate Related
Collateral, more particularly described on Exhibit AD attached hereto and
made a part hereof; and
(e) Concurrently with the execution of this Absolute Assignment of
Deed to Secure Debt and Other Documents, Assignor has endorsed, without
recourse, to Assignee that certain Term Loan Promissory Note in the
original principal amount of $28,125,000, that certain Line of Credit
Promissory Note in the original principal amount of $7,500,000 and that
certain Demand Note Letter of Credit Line Promissory Note in the original
principal amount of $1,875,000, all dated July 31, 1997 (collectively, the
"Notes") and the monies due and to become due thereunder.
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns
forever.
1. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNOR
(a) This Absolute Assignment of Deed to Secure Debt and Other
Documents (this "Assignment") is being made without recourse, and except as
to Assignor's Estoppel Certificate dated on or about even date hereof in
favor of Assignee and except in Paragraph 1(b) below, without
representation or warranty of any kind, including, but not limited to, the
enforceability or collectibility of the Notes and Security Deed.
(b) The Assignor hereby represents and warrants to the Assignee
that: (ij) the Assignor has full legal right, power and authority to
execute and deliver this Assignment and to consummate all of the
transactions contemplated herein; (ii) this Assignment constitutes the
authorized, valid and legally binding obligation of the Assignor
enforceable in accordance with its terms; (iii) that the person who has
executed this Assignment is fully and lawfully authorized and empowered to
cause the Assignor to enter into and consummate this Assignment; and (iv)
no further consent, approval, authorization or order of Assignor is
required to consummate the transactions contemplated by this Assignment.
2. FURTHER ASSURANCES
The Assignor, for itself and its successors and assigns, further covenants
and agrees that it will, at any time and from time to time after the date
hereof upon the written request of the Assignee, execute and deliver such
further instruments of conveyance, transfer, notice, consent or otherwise
and take such other action as may reasonably be required or advisable to
evidence, or give effect to, the rights granted to the Assignee pursuant to
this Assignment and to effectively convey, transfer and vest in the
Assignee full and complete title in the Security Deed and Other Loan
Documents.
3. SUCCESSORS; NO ORAL MODIFICATION
This Assignment shall inure to the benefit of the Assignee and each of its
successors and assigns and is binding upon the Assignor and each of its
respective successors or assigns and may not be modified or terminated
except by a written agreement signed by the parties hereto.
4. GOVERNING LAW; PREVAILING PARTY
This Assignment shall be governed by, and construed in accordance with, the
laws of the State of Georgia. In the event that any litigation arises out
of the execution and implementation of this Assignment, the prevailing
party shall be entitled to recover all costs incurred, including reasonable
attorneys' fees, at all levels of legal proceedings.
5. PARTIAL INVALIDITY
If part of this Assignment is contrary to, prohibited by or deemed invalid
under applicable laws or regulations, such part shall be inapplicable and
deemed omitted to the extent contrary, prohibited or invalid, but the
remainder of this Assignment shall not be invalidated thereby and shall be
given effect so far as is possible.
IN WITNESS WHEREOF, the Assignor has hereunto set its hand and seal
as of the 1st day of September 1998.
Signed, sealed and delivered XXXXXXX BANK, N.A.,
in the presence of: as Resigning Agent and as a Lender,
a national banking association,
By:
Unofficial Witness Title:
[BANK SEAL]
Notary Public
My Commission Expires:
[NOTARY SEAL]
