Exhibit 10(u)
Florida - Xxxx 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 Xxxx County, Florida (the "County"), (collectively, the
"Assignments"):
(i) Absolute Assignment of Leases and Xxxxx dated December 16, 1996 and
recorded December 19, 1996 in Official Record Book 1969, page 0437 as
Instrument No. 1505839 in the records of Xxxx County, Florida, and
(ii) Absolute Assignment of Leases and Rents dated September 2, 1999 and
recorded September 10, 1999 in Official Record Book R2295, page 01028
as Instrument No. R990073626 in the records of Xxxx County, Florida,
(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
Signed in presence of: corporation
s/Xxxxxx X. Xxxxxxx By: s/Xxxxxx Xxxxxxxxx
------------------------------------ ----------------------------
Xxxxxx X. Xxxxxxx Vice President
--------------------------- ----------------------------
Name Typed or Printed 000 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
s/Xxxxx X. Xxxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxxx
------------------------------------
Name Typed or Printed
(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
Signed in presence of:
s/Xxxxx X. Xxxxxxxxx By: s/Xxxxxx X. Xxxxx
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Xxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxx,
Managing Director
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
s/Xxxxx X. Xxxxxx Attest: s/Xxxxxx X. Xxxxx
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Xxxxx X. Xxxxxx Xxxxxx X. Xxxxx,
Assistant Secretary
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
(corporate seal)
STATE OF FLORIDA )
)ss.
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 6TH day of December,
2001, by Xxxxxx Xxxxxxxxx, as Vice President for XXXXX EQUITY, INC., a Florida
corporation, on behalf of the corporation. They are personally known to me or
have produced as identification.
NOTARY PUBLIC:
Signature s/Xxxxx X. Xxxx
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Xxxxx X. Xxxx
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Name (typed or printed)
State of Florida at Large
My Commission Expires: October 30, 2003
My Commission # CC 850933
STATE OF WISCONSIN )
)ss.
COUNTY OF MILWAUKEE )
The foregoing instrument was acknowledged before me this 3rd day of December,
2001, by Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxx, as Managing Director and Assistant
Secretary for Northwestern Investment Management Company, LLC, on behalf of THE
NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a Wisconsin corporation. They are
personally known to me or have produced a Wisconsin Drivers License as
identification.
NOTARY PUBLIC:
Signature s/Xxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxxx
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Name (typed or printed)
State of Wisconsin
My Commission Expires: May 9, 2004
Ex-A-1
EXHIBIT "A"
(Description of Property)
(All property in Xxxx County, Florida)
