EXHIBIT 28
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ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "ASSIGNMENT AND
ACCEPTANCE") dated as of July 22, 2004 is made between JPMorgan Chase Bank,
successor by merger with Xxxxxx Guaranty Trust Company of New York (the
"ASSIGNOR") and FBA II, Inc. ("FBA II") and JMD Delaware, Inc. and JJO Delaware,
Inc., as trustees for the 1997 Irrevocable Trust for Xxxxx Xxxxxx (the "TRUST,"
and together with FBA II, the "ASSIGNEES").
RECITALS
WHEREAS, the Assignor is party to that certain Amended and Restated
Credit Agreement dated as of December 13, 2001, as amended by that certain First
Modification of Amended and Restated Credit Agreement dated as of February 28,
2002, that certain Second Modification of Amended and Restated Credit Agreement
dated as of July 18, 2002, that certain Third Modification of Amended and
Restated Credit Agreement dated as of January 13, 2003, that certain Fourth
Modification of Amended and Restated Credit Agreement dated as of April 30,
2003, that certain Fifth Modification of Amended and Restated Credit Agreement
dated as of July 14, 2003, and that certain Sixth Modification of Amended and
Restated Credit Agreement dated as of May 28, 2004 (as the same may be further
amended from time to time, the "CREDIT AGREEMENT"), made by and between the
Assignor and the Miami Heat Limited Partnership, a Florida limited partnership
(the "BORROWER"). Capitalized terms used herein and not defined herein shall
have the meanings assigned thereto in the Credit Agreement;
WHEREAS, Loans (the "LOANS") made to the Borrower by the Assignor under
the Credit Agreement in the aggregate principal amount of $260,000,000.00 are
outstanding at the date hereof; and
WHEREAS, the Assignor wishes to sell and assign to the Assignees the
Loans and all rights and obligations of the Assignor under the Credit Agreement,
on the terms and subject to the conditions set forth herein, and the Assignees
wish to purchase the Loans and accept the assignment of all such rights and to
assume such obligations from the Assignor on such terms and subject to such
conditions.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. ASSIGNMENT AND ACCEPTANCE.
(a) Subject to the terms and conditions of this Assignment
and Acceptance, (i) the Assignor hereby sells, transfers and assigns to the
Assignees, and (ii) FBA II hereby purchases, assumes and undertakes from the
Assignor, without recourse and without representation or warranty (except as
provided in this Assignment and Acceptance) thirty-three and one-third percent
(33.33%) of, and the Trust hereby purchases, assumes and undertakes from the
Assignor, without recourse and without representation or warranty (except as
provided in this Assignment and Acceptance) sixty-six and two-thirds percent
(66.67%) of (A) the Loans and (B) all rights, benefits, obligations, liabilities
and indemnities of the Assignor under and in connection with the Credit
Agreement and the Credit Documents, including without limitation the Assignor's:
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(i) rights under the Amended and Restated Promissory
Note, dated May 28, 2004, by the Borrower in favor of the Assignor in the
principal amount of $215,000,000 (the "TRANCHE A NOTE") and the Amended and
Restated Tranche B Promissory Note, dated January 13, 2003 (as revised April 30,
2003 and July 14, 2003), by the Borrower in favor of the Assignor in the
principal amount of $45,000,000 (the "TRANCHE B NOTE");
(ii) security interest in the Collateral and rights
under the Amended and Restated Pledge Agreement, dated as of December 13, 2001,
between MA 1994 B Shares, L.P. (the "PLEDGOR") and the Assignor, as amended by
that certain First Modification of Amended and Restated Pledge Agreement dated
as of July 18, 2002, and that certain Second Modification of Amended and
Restated Pledge Agreement dated as of January 13, 2003;
(iii) rights under the Amended and Restated Guaranty,
dated as of December 13, 2001, by the Pledgor in favor of the Assignor; and
(iv) rights under the Custodial Account Control
Agreement, dated as of December 13, 2001, among the Pledgor, the Assignor, and
The Northern Trust Company.
(b) With effect on and after the Effective Date (as defined
in Section 5 hereof), the Assignees shall be parties to the Credit Agreement and
succeed to all of the rights and be obligated to perform all of the obligations
of the Assignor under the Credit Agreement. It is the intent of the parties
hereto that the Assignor shall relinquish its rights and be released from its
obligations under the Credit Agreement to the extent such obligations have been
assumed by the Assignees.
2. PAYMENTS. As consideration for the sale, assignment and
transfer contemplated in Section 1 hereof, (i) FBA II shall pay to the Assignor
on the Effective Date in immediately available funds, an amount equal to
eighty-six million six hundred sixty-six thousand six hundred sixty-six dollars
and sixty-seven cents ($86,666,666.67) (the "FBA II PAYMENT") and (ii) the Trust
shall pay to the Assignor on the Effective Date in immediately available funds,
an amount equal to one hundred seventy-three million three hundred thirty-three
thousand three hundred thirty-three dollars and thirty-three cents
($173,333,333.33) (the "TRUST PAYMENT").
3. REALLOCATION OF PAYMENTS. Any interest, fees and other
payments accrued to the Effective Date with respect to the interests and
obligations assigned and assumed by the Assignees shall be for the account of
the Assignor. Any interest, fees and other payments accrued on and after the
Effective Date with respect to the interests and obligations assigned and
assumed by the Assignees shall be for the account of the Assignees. Each of the
Assignor and the Assignees agrees that it will hold in trust for the other party
any interest, fees and other amounts which it may receive to which the other
party is entitled pursuant to the preceding two sentences and pay to the other
party any such amounts which it may receive promptly upon receipt.
4. INDEPENDENT CREDIT DECISION. The Assignees (a) acknowledge
that they have received a copy of the Credit Agreement and the Exhibits thereto,
together with such other documents and information as they have deemed
appropriate to make their own credit and legal
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analysis and decision to enter into this Assignment and Acceptance; and (b)
agree that they will, independently and without reliance upon the Assignor,
based on such documents and information as they shall deem appropriate at the
time, continue to make their own credit and legal decisions in taking or not
taking action under the Credit Agreement.
5. EFFECTIVE DATE; NOTICES.
(a) As between the Assignor and the Assignees, the
effective date for this Assignment and Acceptance shall be July 22, 2004 (the
"EFFECTIVE DATE"); provided that the following conditions precedent have been
satisfied on or before the Effective Date:
(i) this Assignment and Acceptance shall be
executed and delivered by the Assignor and the Assignees;
(ii) the consent of the Borrower required for an
effective assignment of the Loans by the Assignor to the Assignees shall have
been duly obtained;
(iii) FBA II shall pay to the Assignor the FBA II
Payment;
(iv) the Trust shall pay to the Assignor the Trust
Payment; and
(v) the Assignor shall have delivered or shall
cause to be delivered to the Assignees the Tranche A Note and the Tranche B
Note.
6. REPRESENTATIONS AND WARRANTIES.
(a) The Assignor represents and warrants that (i) it is the
legal and beneficial owner of the Loans and the rights being assigned by it
hereunder and that such interest and rights are free and clear of any Lien or
other adverse claim; (ii) it is duly organized and existing and it has the full
power and authority to take, and has taken, all action necessary to execute and
deliver this Assignment and Acceptance and any other documents required or
permitted to be executed or delivered by it in connection with this Assignment
and Acceptance and to fulfill its obligations hereunder; (iii) no notices to, or
consents, authorizations or approvals of, any Person are required (other than
any already given or obtained) for its due execution, delivery and performance
of this Assignment and Acceptance, and apart from any agreements or undertakings
or filings required by the Credit Agreement, no further action by, or notice to,
or filing with, any Person is required of it for such execution, delivery or
performance; and (iv) this Assignment and Acceptance has been duly executed and
delivered by it and constitutes the legal, valid and binding obligation of the
Assignor, enforceable against the Assignor in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles.
(b) The Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made by the Borrower in or in connection with the Credit
Agreement and the other Credit Documents. The Assignor makes no representation
or warranty in connection with, and assumes no responsibility with respect to,
the solvency, financial condition or statements of the Borrower, or the
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performance or observance by the Borrower of any of its respective obligations
under the Credit Agreement and the other Credit Documents or any other
instrument or document furnished in connection therewith.
(c) The Assignees represent and warrant that (i) they are
duly organized and existing and they have full power and authority to take, and
have taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by them in connection with this Assignment and Acceptance, and to
fulfill their obligations hereunder; (ii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any already
given or obtained) for their due execution, delivery and performance of this
Assignment and Acceptance; and apart from any agreements or undertakings or
filings required by the Credit Agreement or other Credit Documents, no further
action by, or notice to, or filing with, any Person is required of them for such
execution, delivery or performance; and (iii) this Assignment and Acceptance has
been duly executed and delivered by them and constitutes the legal, valid and
binding obligation of the Assignees, enforceable against the Assignees in
accordance with the terms hereof, subject, as to enforcement, to bankruptcy,
insolvency, moratorium, reorganization and other laws of general application
relating to or affecting creditors' rights and to general equitable principles.
7. FURTHER ASSURANCES.
(a) The Assignor and the Assignees each hereby agree to
execute and deliver such other instruments, and take such other action, as
either party may reasonably request in connection with the transactions
contemplated by this Assignment and Acceptance, including the delivery of any
notices or other documents or instruments to the Borrower, which may be required
in connection with the assignment and assumption contemplated hereby.
(b) Without limiting the generality of the foregoing, the
Assignor shall promptly take all necessary steps to terminate all financing
statements filed on its behalf in connection with the Credit Agreement and the
Credit Documents, including without limitation that certain UCC-1 (File No.
1074714 2) filed on May 29, 2001 in the State of Delaware, as amended December
13, 2001, in favor of the Assignor.
8. MISCELLANEOUS.
(a) Any amendment or waiver of any provision of this
Assignment and Acceptance shall be in writing and signed by the parties hereto.
No failure or delay by either party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof and any waiver of any
breach of the provisions of this Assignment and Acceptance shall be without
prejudice to any rights with respect to any other or further breach thereof.
(b) All payments made hereunder shall be made without any
set-off or counterclaim.
(c) The Assignor and the Assignees shall each pay its own
costs and expenses incurred in connection with the negotiation, preparation,
execution and performance of this Assignment and Acceptance.
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(d) This Assignment and Acceptance may be executed in any
number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS TO BE PERFORMED SOLELY IN NEW YORK. The Assignor and the Assignees
each irrevocably submits to the non-exclusive jurisdiction of any State or
Federal court sitting in New York City over any suit, action or proceeding
arising out of or relating to this Assignment and Acceptance and irrevocably
agrees that all claims in respect of such action or proceeding may be heard and
determined in such New York State or Federal court. Each party to this
Assignment and Acceptance hereby irrevocably waives, to the fullest extent it
may effectively do so, the defense of an inconvenient forum to the maintenance
of such action or proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEES EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE, THE CREDIT AGREEMENT, ANY
RELATED DOCUMENTS AND AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, OR
STATEMENTS (WHETHER ORAL OR WRITTEN).
[The Remainder of This Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Assignor and the Assignees have caused
this Assignment and Acceptance to be executed and delivered by their duly
authorized officers as of the date first above written.
JPMORGAN CHASE BANK (Assignor)
By: /s/ Xxxx XxXxxx
---------------------------------
Title: Xxxx XxXxxx
Address: Vice President
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
FBA II, INC. (Assignee)
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Xxxx X. Xxxxxxxxx
Title: Vice President / Secretary
Address: 000 Xxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
1997 IRREVOCABLE TRUST FOR XXXXX XXXXXX
(Assignee)
By: JMD DELAWARE, INC.,
trustee
By: /s/ Xxxx X. X'Xxxx
---------------------------------
Xxxx X. X'Xxxx
Title: Vice President / Trust Officer
Address: 0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
By: JJO DELAWARE, INC.,
trustee
By: /s/ Xxxx X. X'Xxxx
--------------------------------
Xxxx X. X'Xxxx
Title: President
Address: 0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Miami Heat Limited Partnership, in its capacity as the Borrower under
the Credit Agreement and as required by Section 8.3(c) of the Credit Agreement,
hereby consents, with effect as of the date hereof, to the execution of this
Assignment and Acceptance Agreement.
MIAMI HEAT LIMITED PARTNERSHIP
By: FBA II, INC.,
its general partner
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Xxxx X. Xxxxxxxxx
Title: Vice President / Secretary
Address: 000 Xxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
