Exhibit 10(d)
Loan No. C-332344
FIRST AMENDMENT TO TRANCHE C PROMISSORY NOTE
THIS FIRST AMENDMENT TO TRANCHE C PROMISSORY NOTE (this "First
Amendment") is made as of the 6th day of December, 2001 between, Xxxxx Equity,
Inc., a Florida corporation, hereinafter called "Borrower", and THE NORTHWESTERN
MUTUAL LIFE INSURANCE COMPANY, a Wisconsin corporation, 000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, hereinafter called "Northwestern".
RECITALS
WHEREAS, Northwestern is the owner of a certain Tranche C Promissory
Note executed by Borrower on September 2, 1999 in the original principal amount
of Fourteen Million Seven Hundred Thousand Dollars ($14,700,000.00) (the "Note")
secured by a lien against certain property located in various counties and
states, evidenced by lien instruments of record as follows:
(i) Master Lien Instrument Mortgage and Security Agreement dated December
19, 1996 securing the Notes; counterparts of which have been recorded
in (a) Official Records Book 8507, page 1224 of the public records of
Xxxxx County, Florida; (b) Official Records Book 1969, page 356 of the
public records of Xxxx County, Florida; (c) Official Records Book
5173, page 333 of the public records of Orange County, Florida; (d)
Official Records Book 9559, page 1088 of the public records of
Pinellas County, Florida; (e) as Instrument Number GG7415 in the
public records of Shelby County, Tennessee and that certain Deed of
Trust and Security Agreement dated August 18, 1997 recorded as
Instrument Number GV2951 in the public records of Shelby County,
Tennessee; (f) Greenville County, South Carolina; (g) El Paso County,
Texas; (h) Bexar County, Texas; and (i) Xxxxxx County, Texas; and
(ii) Master Lien Instrument Mortgage and Security Agreement dated September
2, 1999 securing the Notes, counterparts of which have been recorded
(a) in Official Records Book 9409, page 1320 of the public records of
Xxxxx County, Florida; (b) in Official Records Book R2295, page 932 of
the public records of Xxxx County, Florida; (c) in Official Records
Book 5838, page 71 of the public records of Orange County, Florida;
(d) in Official Records book 10670, page 1 of the public records of
Pinellas County, Florida; (e) as Instrument Number JS4479 in the
public records of Shelby County, Tennessee; (f) in the public records
of Greenville County,
South Carolina; (g) El Paso County, Texas; and (h) Xxxxxx County,
Texas; and
(iii) IDB Deed of Trust and Security Agreement dated September 2, 1999
executed by The Industrial Development Board of the City of Memphis
and County of Shelby and Xxxxx Equity, Inc., securing the Notes,
recorded as Instrument Number JS4481 in the public records of Shelby
County, Tennessee, and Leasehold Deed of Trust and Security Agreement
dated September 2, 1999 executed by Xxxxx Equity, Inc., securing the
Notes, recorded as Instrument Number JS 4480 in the public records of
Shelby County, Tennessee.
The foregoing instruments in (i) and (ii) above, as they may have been amended
prior to the date hereof, are collectively referred to as the "Existing Lien
Instruments." The foregoing instruments in (iii) above, as they may have been
amended prior to the date hereof, are collectively referred to as the "IDB Lien
Instruments."
WHEREAS, the Loan Documents (as defined in the Existing Lien
Instruments and IDB Lien Instruments) provide for release and substitution of
security; at the request of Mortgagor, Mortgagee has released certain security
and has agreed to release additional security and to accept certain other
properties (individually and collectively, the "New Security") in substitution
therefor, all as more completely described in the recitals to the Master Loan
Agreement between Mortgagor and Mortgagee of even date herewith ("Master Loan
Agreement").
WHEREAS, concurrently with closing the releases and substitutions,
Mortgagor and Mortgagee have agreed (1) to create a Master Loan Agreement
containing terms and conditions governing future releases and substitutions,
which will facilitate Mortgagor's ability to release and substitute property and
will comprehensively identify the property which is the collateral for the
Notes, (2) in the case of New Security located in counties not covered by the
Existing Lien Instruments, Mortgagor will grant Mortgagee first liens on the New
Security by execution, delivery and recordation of new lien instruments ("New
Lien Instruments"), (3) in the case of New Security located in the same counties
as some of the existing security, Mortgagor will grant Mortgagee first liens on
the New Security by spreading the liens and effects of the applicable Existing
Lien Instruments to the New Security, and (4) to consolidate the Existing Lien
Instruments recorded in the applicable counties and amend and restate them, to
amend and restate the IDB Lien Instruments, and amend certain of the other Loan
Documents to incorporate the aforedescribed changes, as necessary.
AND WHEREAS, Northwestern has agreed to amend certain terms of the
Note.
NOW, THEREFORE, in consideration of the above and of the mutual
agreements herein contained, the undersigned parties agree to the following:
1. Unless otherwise defined herein or otherwise indicated, capitalized
words and terms used but not defined herein shall have the meaning ascribed to
them in the Note.
2. Borrower acknowledges that the agreement between Northwestern and
Borrower regarding release of a portion of the security following the Second
Partial Prepayment, which the Note refers to as being described in the "Release
of Security" provision of the Master Lien Instrument, has been deleted in said
instrument pursuant to the amendments and restatements of even date herewith,
and now is set forth as the "Partial Releases" provision of the Master Loan
Agreement.
3. Borrower and Lender acknowledge and agree that all references in the
Note to the term "Master Lien Instrument" shall mean and include the Existing
Lien Instruments, as such instruments may be consolidated, spread, amended,
modified, extended or restated from time to time, and any of the New Lien
Instruments, as they may be consolidated, spread, amended, modified extended or
restated from time to time, and the IDB Lien Instruments as they may be
consolidated, spread, amended, modified, extended or restated from time to time.
4. Except as hereby amended the Note shall remain in full force and
effect, unchanged and in all respects, ratified and confirmed.
5. Nothing herein contained shall affect the priority of the Master
Lien Instrument over other liens, charges, encumbrances or conveyances nor shall
it release or change the liability of any party who may now or hereafter be
liable, primarily or secondarily, under or on account of the Note.
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IN WITNESS WHEREOF, this First Amendment has been executed by the
undersigned as of the date and year first above written.
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY, a Wisconsin corporation
By: Northwestern Investment Management
Company, LLC, a Delaware limited
liability company, its wholly-owned
affiliate and authorized representative
By: s/Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx,
Managing Director
Attest: s/Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx,
Assistant Secretary
(corporate seal)
(signatures continued on the next page)
(signatures continued from previous page)
XXXXX EQUITY, INC., a Florida corporation
By: s/Xxxxxx X. Xxxxxxx
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(corporate seal)
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