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EXHIBIT 10 (K)(4)(A)(IV)
AMENDMENT TO ASSIGNMENT OF CONTRACTS, LICENSES AND
PERMITS
FROM
XXXXX EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
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AMENDMENT TO ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS
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THIS AMENDMENT TO ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS (this
"Assignment") is made and executed this 30th day of December, 1998, by
XXXXX EQUITY, INC., a Florida corporation ("Borrower"), whose address is 0000
Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: X.X. Xxxxxx,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Agent"), for the
Lenders (as such term is defined in the Second Amended and Restated Revolving
Credit Loan Agreement dated of even date herewith, as amended from time to
time, between Borrower and Lender (the "Loan Agreement").
RECITALS
1. Borrower and Agent, Xxxxxx Guaranty Trust Company of New York, a
New York banking corporation, AmSouth Bank, a state banking corporation, and
Guaranty Federal Bank, F.S.B., a federal savings bank (collectively, the
"Original Lenders"), entered into that certain Amended and Restated Revolving
Credit Loan Agreement dated as of December 29, 1997 (the "Prior Loan
Agreement") pursuant to which the Original Lenders agreed to extend certain
credit to the Borrower from time to time up to a maximum principal amount of
$100,000,000 (the "Loan").
2. As partial security for the Loan, the Borrower provided the
Original Lenders with that certain Amended and Restated Deed to Secure Debt,
Assignment of Leases and Rents and Security Agreement dated as of December 29,
1997, and recorded in Book 9767, page 002, of the public records of DeKalb
County, Georgia (the "DeKalb Mortgage"), wherein the Borrower granted to the
Original Lenders a security interest in certain real property described therein
as security for the Loan.
3. As additional collateral for repayment of the Loan, Borrower made
and delivered to the Original Lenders that certain Assignment of Contracts,
Licenses and Permits dated December 29, 1997 (the "Assignment of Contracts"),
which Assignment of Contracts was assigned to Agent pursuant to that certain
Assignment of Deed to Secure Debt and Related Loan Documents of even date
herewith.
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4. The Borrower has applied to the Agent to increase the amount of the
Loan to $150,000,000 and to resyndicate the Loan to additional lenders in order
to finance such increase, and to modify certain other provisions of the
Mortgage. The Agent and the other Original Lenders have agreed to such
modifications, provided, among other things, that the Assignment of Contracts
is modified in accordance with the terms and conditions hereinafter set forth.
5. To further secure the additional indebtedness in connection with
the increase and resyndication of the Loan, Borrower provided the Agent that
certain (i) Second Amended and Restated Deed to Secure Debt, Assignment of
Leases and Rents and Security Agreement dated of even date herewith, which
amends and restates the DeKalb Mortgage and shall be recorded in the public
records of DeKalb County, Georgia, and (ii) Deed to Secure Debt, Assignment of
Leases and Rents and Security Agreement dated of even date herewith,
encumbering the Additional Property described on Exhibit A attached hereto, and
which shall be recorded in the public records of Gwinnett County, Georgia.
ACCORDINGLY, in consideration of the mutual covenants, promises and
agreements hereinafter contained, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. Recitals. The recitals hereinabove are true and correct and are
incorporated herein by reference.
2. Additional Lenders. All references to the term "Lender" as utilized
in the Assignment of Contracts shall hereinafter be deemed to refer to First
Union National Bank, as Agent for the Lenders.
3. Additional Property. Exhibit A attached to the Assignment of
Contracts is hereby amended to include the real property located in DeKalb
County, Georgia and Gwinnett County, Georgia, more particularly described on
Exhibit A attached hereto (the "Additional Property"). All references to the
term "Property" as utilized in the Assignment of Contracts shall hereinafter be
deemed to refer to the Property, as such term is defined in the Assignment of
Contracts, and the Additional Property.
4. Additional Promissory Notes. All references to the term "Notes" as
utilized in the Assignment of Contracts shall hereinafter be deemed to refer
collectively to those certain Substitution Revolving Promissory Notes and
Revolving Promissory Notes all of even date herewith from Borrower to each of
the Lenders.
5. Amendment to Loan Agreement. All references to the term "Loan
Agreement" as utilized in the Assignment of Contracts shall hereinafter be
deemed to refer to that certain Second Amended and Restated Revolving Credit
Loan Agreement dated
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of even date herewith between Borrower and Lender. All references to the term
"Loan" as utilized in the Assignment of Contracts shall hereinafter be deemed
to refer to the Loan evidenced by the Second Amended and Restated Loan
Agreement.
6. Ratification. Except as herein expressly amended, the Assignment of
Contracts is hereby ratified and confirmed and shall otherwise remain unchanged
and in full force and effect.
7. Capitalized Terms. All initial capitalized defined terms not
defined herein shall have the meanings assigned to them in the Assignment of
Contracts.
8. Counterparts. This Agreement may be executed in separate
counterpart signature pages, and all such counterparts taken together shall
constitute but one and the same instrument.
9. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ASSIGNOR, THE ASSIGNEE, AND THE LENDERS, THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH
ACKNOWLEDGE AND AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE BASED UPON OR
ARISING OUT OF THIS AMENDMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE
PARTIES RELATED THERETO. NONE OF THE PARTIES SHALL SEEK TO CONSOLIDATE ANY SUCH
ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE
PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES, ARE
MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL
INDUCEMENT FOR THE LENDERS TO MAKE THE LOAN TO ASSIGNOR, AND SHALL BE SUBJECT
TO NO EXCEPTIONS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their authorized officers as of the day and year first above
written.
Signed, sealed and delivered in the BORROWER:
presence of:
XXXXX EQUITY, INC., a Florida
corporation
/s/ Xxxxxx X. Xxxx By: /s/ G. Xxxxx Xxxxxxx
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Unofficial Witness: Xxxxxx X. Xxxx Name: G. Xxxxx Xxxxxxx
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Title: Treasurer
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Attest: W. Xxxxxxxx Xxxxxxx
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Name: W. Xxxxxxxx Xxxxxxx
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/s/ Xxx Xxxxx Title: Secretary
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Notary Public
[CORPORATE SEAL]
My Commission Expires: Feb. 1, 0000
Xxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx
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[Notary Seal]
LENDER:
FIRST UNION NATIONAL BANK, a
national association, as Agent
/s/ Xxxx X. Xxxxxxxx, Xx. By: /s/ Xxxxxx X. Xxxxxxxx
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Unofficial Witness: Xxxx X. Xxxxxxxx, Xx. Name: J. Xxxxxx X. Xxxxxxxx
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Title: Vice President
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Attest: /s/ Xxxx X. Vermilva
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Name: Xxxx X. Vermilva
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/s/ Xxxxx Xxxxxxxx Title: Vice President
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Notary Public
[CORPORATE SEAL]
My Commission Expires: Sept. 3, 2000
Bonded Thru Notary Public Underwriters
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[Notary Seal]
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EXHIBIT A
DESCRIPTION OF PROPERTY
