Exhibit 10(v)
Tennessee - Shelby County
Loan No. C-331971
C-332344
RECORDING REQUESTED BY
WHEN RECORDED MAIL TO
The Northwestern Mutual Life Ins. Co.
000 Xxxx Xxxxxxxxx Xxxxxx - Xx X00XX
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
SPACE ABOVE THIS LINE FOR RECORDER'S USE
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This instrument was prepared by Xxxxx X. Xxxxx, Attorney, for The Northwestern
Mutual Life Insurance Company, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
CONSOLIDATION AND AMENDMENT OF
ABSOLUTE ASSIGNMENT OF LEASES AND RENTS
(With License Back)
THIS CONSOLIDATION AND AMENDMENT OF ABSOLUTE ASSIGNMENT OF LEASES AND
RENTS ("Consolidation and Amendment") is made as of the 6th day of December,
2001, by and between XXXXX EQUITY, INC., a Florida corporation, 000 Xxxxx Xxxx,
Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (herein called "Borrower") and THE
NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a Wisconsin corporation, whose
mailing address is c/o Real Estate Department, 000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, (herein called "Lender").
RECITALS
X. Xxxxxx has made loans to Borrower evidenced by (i) the Tranche A
Promissory Note dated as of December 16, 1996 executed by Xxxxxxxx for the
principal sum of ONE HUNDRED MILLION FIVE HUNDRED THOUSAND DOLLARS, with final
maturity no later than January 2, 2007 and with interest as therein expressed
and amended September 30, 1997, May 1, 1998, and which is being amended
concurrently herewith; (ii) the Tranche B Promissory Note dated as of December
16, 1996 executed by Xxxxxxxx for the principal sum of EIGHTY-NINE MILLION FIVE
HUNDRED THOUSAND DOLLARS, with final maturity no later than January 2, 2009 and
with interest as therein expressed, which was amended August 11, 2000 and which
is being amended concurrently herewith; (iii) the Tranche C Promissory Note
dated as of September 2, 1999 executed by Xxxxxxxx for the principal sum of
FOURTEEN MILLION SEVEN HUNDRED THOUSAND DOLLARS,
with final maturity no later than January 1, 2007 and with interest as therein
expressed and which is being amended concurrently herewith; and (iv) the Tranche
D Promissory Note dated as of September 2, 1999 executed by Xxxxxxxx for the
principal sum of THIRTY MILLION THREE HUNDRED THOUSAND DOLLARS, with final
maturity no later than January 1, 2009 and with interest as therein expressed
and which is being amended concurrently herewith (the Tranche A Promissory Note,
the Tranche B Promissory Note, the Tranche C Promissory Note, and the Tranche D
Promissory Note, as such instruments may be amended, restated, renewed and
extended, are hereinafter collectively referred to as the "Notes").
B. The Notes are secured by office buildings and unimproved sites 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
Notes, recorded as Instrument Number JS 4481 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."
C. The Notes are also secured by the following assignments of leases and
rents recorded in Shelby County, Tennessee (the "County"), (collectively, the
"Assignments"):
(i) Absolute Assignment of Leases and Xxxxx dated December 16, 1996 and
recorded December 23, 1996 as Instrument No. GG 7416 in the records of
Shelby County, Tennessee,
(ii) Absolute Assignment of Leases and Rents dated August 18, 1997 and
recorded August 25, 1997 as Instrument No. GV 2952 in the records of
Shelby County, Tennessee, and
(iii) Absolute Assignment of Leases and Rents dated September 2, 1999 and
recorded September 10, 1999 as Instrument No. JS 4482 in the records
of Shelby County, Tennessee (the "1999 Assignment").
D. The Loan Documents (as defined below) provide for release and
substitution of security; at the request of Xxxxxxxx, Xxxxxx 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 Borrower and Lender of even date herewith.
E. Concurrently with closing the releases and substitutions, Borrower and
Lender have agreed (1) to create a Master Loan Agreement containing terms and
conditions governing future releases and substitutions, which will facilitate
Borrower'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,
Borrower will grant Lender 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, Borrower will grant Lender 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.
X. Xxxxxxxx and Lender hereby desire to consolidate and amend the
Assignments, all in accordance with the terms set forth herein.
NOW THEREFORE in consideration of the foregoing facts and the covenants
contained herein and other valuable consideration, receipt of which is hereby
acknowledged, Xxxxxxxx and Xxxxxx hereby agree as follows:
1. All initial capitalized words and terms used herein and not otherwise
defined herein shall have the meanings ascribed to such words and terms set
forth in the 1999 Assignment.
2. The Assignments are hereby consolidated in their entirety. Except as set
forth in this Consolidation and Amendment, the terms of the consolidated
Assignments shall be as set forth in the 1999 Assignment
3. All references to "Assignment" in the Assignments shall hereafter refer
to the consolidated and amended Assignments described herein. The defined term
"Master Lien Instrument" in the 1999 Assignment shall hereafter mean "any of the
following recorded in the County: (i) the Existing Lien Instruments, as such
instruments may be consolidated, spread, amended, modified, extended or restated
from time to time, (ii) any of the New Lien Instruments, as they may be
consolidated, spread, amended, modified extended or restated from time to time,
and (iii) the IDB Lien Instruments as they may be consolidated, spread, amended,
modified, extended or restated from time to time." The defined term "Loan
Documents" in the 1999 Assignment shall hereafter be deemed to include the
Master Loan Agreement between Lender and Borrower of even date herewith. The
defined terms "Property" and "Properties" in the 1999 Assignment shall hereafter
be deemed to include the Additional Collateral, as described in Section 4 below.
The defined terms "Note" or "Notes" in the 1999 Assignment shall hereafter refer
to the Notes described above. Section 3.04 of the 1999 Assignment is revised to
replace the phrase "at any Park (as such term is defined in the Master Lien
Instrument)" in Section 3.04 (a) with the phrase "within any Pool (as defined in
the Master Loan Agreement)." Finally, the notice information for Borrower is
hereby revised to be "000 Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000, with
a copy to X. Xxxxxxxx Xxxxx, Esq., White & Case LLP, 000 Xxxxx Xxxxxxxx Xxxx.,
Xxxxx 0000, Xxxxx, Xxxxxxx 00000."
4. Except as expressly stated herein, the Assignments shall remain in full
force and effect and are hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties hereby have executed this Consolidation
and Amendment Agreement as of the date first above written.
BORROWER:
XXXXX EQUITY, INC., a Florida
corporation
By: s/Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
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(corporate seal)
(signatures continued on next page)
(signatures continued from previous page)
LENDER:
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)
STATE OF FLORIDA )
)ss.
COUNTY OF MIAMI-DADE )
Personally appeared before me, the undersigned, a Notary Public within
and for said State and County, duly commissioned and qualified, Xxxxxx Xxxxxxxxx
with whom I am personally acquainted, or proved to me on the basis of
satisfactory evidence, and who, upon oath, acknowledged him/herself to be the
Vice President of XXXXX EQUITY, INC., a Florida corporation, the within named
bargainor, and that he as such Vice President, being authorized so to do,
executed the foregoing instrument, for the purposes therein contained by signing
the name of the corporation by him/herself as such officer.
WITNESS my hand and xxxx at office this 6th day of December, 2001.
My commission expires: October 30, 2003
My Commission # CC 850933
s/Xxxxx X. Xxxx
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Notary Public
STATE OF WISCONSIN )
)ss.
COUNTY OF MILWAUKEE )
Personally appeared before me, the undersigned, a Notary Public within and for
said State and County, duly commissioned and qualified, Xxxxxx X. Xxxxx and
Xxxxxx X. Xxxxx with whom I am personally acquainted, or proved to me on the
basis of satisfactory evidence, and who, upon oath, acknowledged themselves to
be the Managing Director and Assistant Secretary respectively, of Northwestern
Investment Management Company, LLC, a Delaware limited liability company, the
authorized representative of THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, the
within named bargainor, and that they as such Managing Director and Assistant
Secretary respectively, being authorized so to do, executed the foregoing
instrument, for the purposes therein contained by signing the name of the
corporation by themselves as Managing Director and Assistant Secretary
respectively.
WITNESS my hand and xxxx at office this 3rd day of December, 2001.
My commission expires: May 9, 2004
s/Xxxxx X. Xxxxxxxxx
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Notary Public
EXHIBIT "A"
(Description of Property)
(Shelby County, Tennessee property only including Xxxxxxxxx (10B))
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