EXHIBIT 4.3
-----------
NOTE:DOCUMENTARY STAMPS AND INTANGIBLE TAXES WERE PAID IN CONNECTION WITH
THE VARIOUS NOTES PREVIOUSLY CONSOLIDATED AND EVIDENCE OF SAME APPEARS ON
THAT CERTAIN MORTGAGE AND SECURITY AGREEMENT DATED JULY 31, 1997, AND
RECORDED IN OFFICIAL RECORDS BOOK 26802, PAGE 888 OF THE PUBLIC RECORDS OF
BROWARD COUNTY, FLORIDA. THIS BIFURCATION OF NOTE AGREEMENT BIFURCATES
EXISTING INDEBTEDNESS WITHOUT ENLARGEMENT. NO ADDITIONAL INDEBTEDNESS IS
BEING INCURRED AND NO ADDITIONAL DOCUMENTARY STAMPS OR INTANGIBLE TAXES ARE
DUE.
BIFURCATION OF NOTE AGREEMENT
THIS BIFURCATION OF NOTE AGREEMENT ("Agreement") executed
effective as of September 1, 1998 by and between ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership, ARVIDA/JMB PARTNERS, a Florida general
partnership, ARVIDA GRAND BAY LIMITED PARTNERSHIP IV, a Delaware limited
partnership, THE AOK GROUP, a Florida general partnership, METRODRAMA JOINT
VENTURE, a Florida general partnership, SOUTHEAST FLORIDA HOLDINGS, INC.,
an Illinois corporation, GULF AND PACIFIC COMMUNICATIONS LIMITED
PARTNERSHIP, a Delaware limited partnership and WESTON HILLS COUNTRY CLUB
LIMITED PARTNERSHIP, a Delaware limited partnership (jointly and severally,
"Borrowers"), having an address of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and FIRST UNION NATIONAL BANK, as Agent, a national banking
association, having an address of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Lender").
W I T N E S S E T H:
WHEREAS, Lender is owner and holder of a certain Consolidated and
Restated Term Loan Promissory Note executed by Borrowers and dated of even
date herewith in the original principal amount of $49,000,000
("Consolidated Note"), subject to the terms of that certain Credit
Agreement dated July 31, 1997 ("Credit Agreement") and secured by the
"Security Documents" (as defined in the Credit Agreement); and
WHEREAS, Borrowers and Lender wish to bifurcate the Consolidated Note
into two notes to remain subject to the terms of the Credit Agreement, as
modified of even date, and to remain secured by the Security Documents, as
modified of even date.
NOW, THEREFORE, in consideration of the mutual benefit to be
obtained, the parties hereto, intending to be legally bound, do hereby
agree as follows:
1. The above recitals are true and correct and are incorporated
herein by this reference.
2. Borrowers acknowledge that the unpaid principal balance of the
Consolidated Note as of the date hereof is $49,000,000.
3. As of the date hereof, Borrowers have no defenses, rights of
set-off, claims or counterclaims against Lender under the Consolidated
Note, the Credit Agreement or the Security Documents and Borrowers hereby
reaffirm their obligations thereunder as modified hereby.
4. This Agreement is not intended by Borrowers to be a novation,
the existing indebtedness not being forgiven hereby, but merely bifurcated
into two notes.
5. The Consolidated Note is hereby bifurcated to evidence two
debts, represented by: (a) a $30,200,000 Term Loan Restated Renewal
Promissory Note, attached hereto as Exhibit A, and (b) a $18,800,000 Term
Loan Restated Renewal Promissory Note, a copy of which is attached hereto
as Exhibit B. Simultaneously herewith, the $18,800,000 Term Loan Restated
Renewal Promissory Note, a copy of which is attached hereto as Exhibit B
shall be assigned by Lender to Bank United, a federal savings bank, due to
which intended assignment the bifurcated notes attached hereto as Exhibit A
and Exhibit B contain references to multiple lenders so as to be consistent
with the Credit Agreement, as modified of even date.
IN WITNESS WHEREOF, the parties have executed this Bifurcation of
Note Agreement the day and year first above written.
BORROWERS:
ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
ARVIDA /JMB PARTNERS, a Florida general
partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, a general
partner
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
ARVIDA GRAND BAY LIMITED PARTNERSHIP
IV,
a Delaware limited partnership
By: ARVIDA GRAND BAY MANAGERS, INC.,
a Delaware corporation, its sole
general partner
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
THE AOK GROUP, a Florida general
partnership
By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership, a
general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its
sole general partner
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS, a Florida
general partnership, a general partner
By: ARVIDA/JMB MANAGERS, INC.,
Delaware corporation, a
general partner
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
METRODRAMA JOINT VENTURE,
a Florida general partnership
By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its
sole
general partner
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS, a Florida
general partnership, a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, a general partner
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
SOUTHEAST FLORIDA HOLDINGS, INC.,
an Illinois corporation
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
GULF AND PACIFIC COMMUNICATIONS
LIMITED PARTNERSHIP,
a Delaware limited partnership
By: PACIFIC PROPERTIES, INC., an
Illinois corporation, its sole general partners
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
WESTON HILLS COUNTRY CLUB LIMITED
PARTNERSHIP, a Delaware limited partnership
By: WHCC, INC., an Illinois
corporation,
its sole general partner
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
LENDER:
FIRST UNION NATIONAL BANK,
a national banking association
By:
Print Name:
Title:
[CORPORATE SEAL]
EXHIBIT "A" TO BIFURCATION OF NOTE AGREEMENT
THE TAX HAS BEEN PAID AND THE PROPER DOCUMENTARY STAMPS HAVE BEEN AFFIXED
TO THE MORTGAGE AND SECURITY AGREEMENT SECURING THIS PROMISSORY NOTE.
TERM LOAN
PROMISSORY NOTE
$30,200,000 Effective Date: September 1, 1998
FOR VALUE RECEIVED, the undersigned, Arvida/JMB Partners, L.P., a
Delaware limited partnership, Arvida/JMB Partners, a Florida general
partnership, Arvida Grand Bay Limited Partnership IV, a Delaware limited
partnership, The AOK Group, a Florida general partnership, Metrodrama Joint
Venture, a Florida general partnership, Southeast Florida Holdings, Inc.,
an Illinois corporation, Gulf and Pacific Communications Limited
Partnership, a Delaware limited partnership, and Weston Hills Country Club
Limited Partnership, a Delaware limited partnership, all having an office
at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
collectively referred to as the "Makers"), jointly and severally promise to
pay to the order of First Union National Bank, a national banking
association, its successors or assigns (the "Lender"), the principal sum of
THIRTY MILLION TWO HUNDRED THOUSAND DOLLARS ($30,200,000), or the Lender's
Actual Share of all sums as may be advanced under the Term Loan Commitment,
pursuant to and in accordance with the Credit Agreement, together with
interest on the principal balance of this Note outstanding from time to
time, as same shall accrue thereon in accordance with the terms hereof, but
not to exceed the maximum non-usurious rate permitted by law.
10 Definitions. Capitalized terms not otherwise defined herein shall
have the meanings ascribed to such terms in the Credit Agreement. In
addition to capitalized terms defined elsewhere herein, the following
capitalized terms shall have the meanings ascribed to them as follows:
1.1 "Actual Share" means the percentage interest of the Lender in
the Advance made pursuant to the Term Loan Commitment.
1.2 "Adjusted LIBO Rate" means, relative to any LIBO Rate Tranche
to be made, continued or maintained as, or converted into, a LIBO Rate
Tranche for any Interest Period, a rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of one percent) equal to the quotient of
(i) the LIBO Rate applicable to the relevant Interest Period, divided by
(ii) the result of one minus the Reserve Percentage applicable to such
Interest Period.
1.3 "Agent" means First Union National Bank, a national banking
association.
1.4 "Business Banking Day" means a day that is not a Saturday, a
Sunday, or a day on which the Agent is closed pursuant to authorization or
requirement of law.
1.5 "Committed Share" means the percentage interest of the Lender
in the Term Loan Commitment.
1.6 "Credit Agreement" means the Credit Agreement dated July 31,
1997 between Lender and the Borrower (among others), as amended, of even
date herewith, as the same may be amended, supplemented, restated, replaced
or otherwise modified from time to time.
1.7 "Default Rate" means the lesser of: (i) five percent (5%) above
the Note Prime Rate and (ii) the maximum non-usurious rate permitted under
applicable law, provided the maximum interest rate shall never be more then
twenty-four and 99/100 percent (24.99%).
1.8 "Event of Default" has the meaning ascribed to such term in the
Credit Agreement.
1.9 "Interest Period" means, in the case of a LIBO Rate Tranche,
the period commencing on (and including) the Business Banking Day selected
by the Makers as the date on which such LIBO Rate Tranche is made or
continued as, or converted into a LIBO Rate Tranche pursuant to the terms
of this Note, and ending on (but excluding) the day which numerically
corresponds to such date one, two, three or six months thereafter (or if
such month has no numerically corresponding day, on the last Business
Banking Day of such month), in each case as the Makers may select, provided
that (a) if such Interest Period would otherwise end on a day which is not
a Business Banking Day, such Interest Period shall end on the next
following Business Banking Day (unless, in the case of a LIBO Rate Tranche,
such next following Business Banking Day is the first Business Banking Day
of the calendar month, in which case such Interest Period shall end on the
Business Banking Day next preceding such numerically corresponding day);
and (b) no Interest Period may end on a date later than the Maturity Date.
1.10 "LIBO Rate" means, relative to any Interest Period, a rate of
interest per annum (rounded upwards, if necessary, to the nearest 1/100 of
one percent) equal to the rate for US dollar deposits with maturities
comparable to such Interest Period for delivery on the first day of such
Interest Period which appears on the Reuters Screen LIBO Page, as of
11:00 a.m. (London time) on the day that is two (2) London Banking Days
preceding the commencement date of the Interest Period. If at least two
(2) such offered rates appear on the Reuters Screen LIBO Page, the rate
will be the arithmetic mean of such offered rates. The Agent may, in its
discretion, use any other publicly available index or reference rate
showing rates offered for United States dollar deposits in the London
Interbank market as of the applicable date. In addition, the Agent may, in
its discretion, use rate quotations for daily or annual periods in lieu of
quotations for substantially equivalent monthly periods, in the absence of
such quotations for substantially equivalent monthly periods. Each
determination of the LIBO Rate applicable to a particular Interest Period
shall be made by the Agent and shall be conclusive and binding upon the
Makers and Lenders absent manifest error.
1.11 "LIBO Rate Tranche" means a Tranche bearing interest at all
times during the Interest Period applicable to such Tranche, at a fixed
rate of interest equal to the Note LIBO Rate applicable to such Interest
Period.
1.12 "Loan Documents" has the meaning described to such term in the
Credit Agreement.
1.13 "Loan Year" means each of the twelve (12) month periods
commencing on July 31, 1997 and on the first, second and third
anniversaries hereof.
1.14 "London Banking Day" means each day other than a Saturday, a
Sunday or any holiday on which commercial banks in London, England are
closed for business.
1.15 "Maturity Date" means the earlier of: (i) July 31, 2001 and
(ii) any earlier date upon which the principal balance outstanding
hereunder, together with all interest accrued thereon, shall become
immediately due and payable following an Event of Default, in accordance
with provisions of the Credit Agreement.
1.16 "Note" means this Term Loan Promissory Note, in the amount of
the Lender's Committed Share of the Term Loan Commitment, as same maybe
amended, supplemented, restated, replaced or otherwise modified from time
to time.
1.17 "Note LIBO Rate" means the Adjusted LIBO Rate applicable to a
specific LIBO Rate Tranche selected by the Makers for a relevant Interest
Period, plus 175 basis points.
1.18 "Note Prime Rate" means the Prime Rate applicable to the Prime
Rate Tranche. The Note Prime Rate shall be increased or decreased
effective on any date on which the Prime Rate shall be increased or
decreased.
1.19 "Other Lender" means, Bank United, a federal savings bank, also
being a "Lender".
1.20 "Prime Rate" means the annual rate of interest announced from
time to time by First Union National Bank, as its Prime Rate. The Prime
Rate is a reference rate for the information and use of the Agent in
establishing the actual rates to be charged to borrowers and is not
necessarily the lowest rate charged by the Agent. Should First Union
National Bank not publish a Prime Rate at any time during the term of this
Note, the Agent, in its reasonable discretion, may choose a substitute
Prime Rate. The rate of interest shall change automatically and immediately
as of the date of any change in the Prime Rate without notice to Borrower
or any endorser, surety or guarantor, if any.
1.21 "Prime Rate Tranche" means a Tranche bearing interest at the
Note Prime Rate.
1.22 "Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor
thereto or other rule, regulation or official interpretation of said Board
of Governors relating to reserve requirements applicable to member banks of
the Federal Reserve System.
1.23 "Required Lenders" has the meaning ascribed to such term in the
Credit Agreement.
1.24 "Reserve Percentage" means the stated maximum rate (expressed
as a decimal) at which reserves are required to be maintained by the Agent
during an Interest Period, including, without limitation (i) any basis,
supplemental, marginal, or emergency reserve under any regulations of any
governmental authority to which the Agent is subject, (ii) any reserve
prescribed by the Board of Governors of the Federal Reserve System (or any
successor), including, without limitation, Regulation D, for determining
the maximum reserve requirement in respect of "Eurocurrency liabilities"
(or in respect of any other category of liabilities which includes deposits
by reference to which the LIBO Rate is determined). Without limiting the
effect of the foregoing, the Reserve Percentage shall reflect any other
reserves required to be maintained by the Agent under any regulation of any
governmental authority to which the Agent is subject against (a) any
category of liabilities that include deposits with reference to which the
LIBO Rate is to be determined or (b) any category of extension of credit or
other assets that includes loans bearing interest at a rate based on the
LIBO Rate. Each determination of the Reserve Percentage shall be made by
the Agent and shall be conclusive and binding upon the Makers and Lenders
absent manifest error.
1.25 "Security Documents" has the meaning ascribed to such term in
the Credit Agreement.
1.26 "Term Loan Commitment" has the meaning ascribed to such term in
the Credit Agreement.
1.27 "Term Loan Notes" means this Note and the other Term Loan Note
executed by the Makers in favor of the Other Lenders, each dated of even
date herewith, in the aggregate amount of the Term Loan Commitment, as same
may be amended, supplemented, renewed, restated, replaced or otherwise
modified from time to time.
1.28 "Tranche" means any portion of the outstanding principal
balance under the Term Loan Notes bearing interest at the applicable Note
LIBO Rate for a specific Interest Period, as selected by the Makers in
accordance with Section 2.1, below, and any portion of the outstanding
principal balance under the Term Loan Notes which may from time to time
bear interest at the Note Prime Rate.
20 Selection and Calculation of Interest Rate.
2.1 Provided that no Event of Default or circumstance which with
the passage of time or giving of notice would become an Event of Default
then exists under the Loan Documents, and provided there shall at no time
be permitted to exist more than four LIBO Rate Tranches with respect to the
total principal balance outstanding under the Term Loan Notes, the Makers
shall have the right to elect to have the Note LIBO Rate then in effect for
an Interest Period apply to a LIBO Rate Tranche, in accordance with, and
subject to the provisions of this Section 2.1. To make an election to have
such Note LIBO Rate apply to any LIBO Rate Tranche, from time to time, the
Makers shall give to the Agent irrevocable notice (a "Rate Election
Notice") not later than 11:00 a.m. (Ft. Lauderdale, Florida time) at least
three (3) Business Banking Days prior to the commencement date of each such
Interest Period, which Rate Election Notice shall be addressed as follows,
and shall be given in writing (by telecopy, hand delivery, or overnight
delivery service), in accordance with the provisions of Section 11.4 of the
Credit Agreement:
▇▇▇▇ ▇▇▇▇▇▇, Vice President
First Union National Bank
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Each such Rate Election Notice shall be in the form attached hereto as
Schedule 1 and shall specify: (i) the commencement day of the Interest
Period which shall be a Business Banking Day (and, with respect to any then
existing LIBO Rate Tranche, shall not be a date prior to the termination
date of such then existing LIBO Rate Tranche), (ii) the principal amount of
the LIBO Rate Tranche which shall be subject to the application of the Note
LIBO Rate, which shall be in a minimum amount of $2,000,000.00, and in
multiples of $100,000.00 and (iii) the applicable Interest Period which
shall apply to such LIBO Rate Tranche, provided, however, that no Interest
Period may extend beyond the Maturity Date.
2.2 If the Agent determines, absent manifest error, that the
maintenance of any Note LIBO Rate would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, of if the
Agent determines that the interest rate applicable to the Note LIBO Rate
does not accurately reflect the cost of maintaining any LIBO Rate Tranche
subject to such rate, then, at the election of the Agent, the Makers shall
not be entitled thereafter to select a Note LIBO Rate to be applicable to
any portions of the total outstanding principal balance under the Term Loan
Notes, and the interest rate applicable to all of the outstanding principal
balance under the Term Loan Notes then subject to the Note LIBO Rate for
any applicable Interest Period, shall, upon the expiration of all such
applicable Interest Periods, be converted to the Prime Rate.
2.3 In the event that the Makers shall fail to provide a timely
Rate Election Notice for the election of the Note LIBO Rate to apply to any
Advance or to any LIBO Rate Tranche, as of the termination date of the
applicable Interest Period for such Tranche, then as the date of such
Advance, or as of such termination date of such LIBO Rate Tranche, as the
case may be, the Prime Rate shall apply to such Advance or LIBO Rate
Tranche until the next eligible effective date for which the Makers shall
have provided a timely Rate Election Notice, and such Advance or such
principal amount previously comprising a LIBO Rate Tranche, shall
thereafter be deemed to be included in the Prime Rate Tranche.
2.4 Interest shall be calculated on the daily total outstanding
balance of all Advances of Loan Proceeds under the Term Loan Commitment, as
such Advances are evidenced by the Term Loan Notes, as follows:
(i) interest shall accrue on each LIBO Rate Tranche, commencing with the
effective date for each such LIBO Rate Tranche, at the applicable Note LIBO
Rate for the applicable Interest Period and (ii) interest shall accrue on
the Prime Rate Tranche, which shall comprise all of the outstanding
principal balance under the Term Loan Notes not otherwise subject to a LIBO
Rate Tranche, at the Note Prime Rate, changing when and as the Prime Rate
changes. Interest shall be computed through and including the date of any
payment and shall be calculated for actual days elapsed on the basis of a
360 day year (i.e. interest for each day on which any principal is
outstanding shall be calculated at the applicable interest rate described
above, divided by 360).
30 Payment of Interest and Principal.
3.1 Interest, calculated as above provided, shall be due and
payable by the Makers to the Agent, for the account of the Lender and Other
Lender, in accordance with their Actual Shares of the total outstanding
principal balance of the Term Loan Notes, subject to the provisions of
Section 3.7 hereof, on the first Business Banking Day of the first calendar
month immediately following the Advance of Loan Proceeds under the Term
Loan Commitment and continuing on the first day of each month thereafter
until the Maturity Date.
3.2 The Makers shall make payments in reduction of the total
principal balance outstanding under the Term Loan Notes, as follows:
(a) The Makers shall pay to the Agent, for the account of the
Lender and the Other Lender, on or before the last Business Banking Day of
each Loan Year, the sum of $12,500,000.00 (the "Minimum Required
Curtailment").
(b) The Makers shall pay to the Agent, for the account of the
Lender and the Other Lender, on each ARC Payment Date, an amount (the
"Additional Required Curtailment") calculated as follows:
(A) On the 1999 February ARC Payment Date and each
subsequent February ARC Payment Date, an amount equal to the sum of:
(x) the ARC Deficit, if any, to the extent the ARC Deficit does not exceed
the Adjusted CFAPF for the fiscal year ended on the immediately preceding
December 31, plus (y) twenty-five percent (25%) of the remainder of the
Adjusted CFAPF for the fiscal year ended on the immediately preceding
December 31, after any payment of the ARC Deficit pursuant to subparagraph
(x) hereinabove.
(B) On each August ARC Payment Date, an amount equal to
the sum of: (x) the ARC Deficit, if any, plus (y) twenty-five percent (25%)
of the remainder of any Distribution then made, after any payment of the
ARC Deficit pursuant to subparagraph (x) hereinabove.
(C) Notwithstanding anything herein to the contrary,
those portions of the Additional Required Curtailment calculated pursuant
to subpart (y) of subsection (A); and subpart (y) of subsection (B) shall
in the aggregate, in any one (1) Loan Year, not exceed $6,250,000.00.
The term "Adjusted CFAPF" means Cash Flow After Project
Financing less all Term Loan Principal Payments and all interest paid on
the Term Loan during the preceding fiscal year.
The term "Cash Flow After Project Financing" has the meaning
ascribed to such term in the Credit Agreement.
The term "Distribution" has the meaning ascribed to such term
in the Credit Agreement.
The term "ARC Deficit" means: (i) as of any ARC Payment Date in
the second Loan Year, the difference of $18,750,000.00 less the sum of all
Term Loan Payments theretofore paid, (ii) as of any ARC Payment Date in the
third Loan Year, the difference of $37,500,000.00 less the sum of all Term
Loan Payments theretofore paid and (iii) as of any ARC Payment Date in the
fourth Loan Year, the difference of $56,250,000.00 less the sum of all Term
Loan Payments theretofore paid (for the purpose of this Note, the first
"Loan Year" shall be deemed to have commenced July 31, 1997).
The term "ARC Payment Date" means: (i) any Business Banking Day
in any August of any Loan Year, on which a Distribution is made, if any (an
"August ARC Payment Date"), and (ii) the first Business Day of each
February of each Loan Year, or such later date in February on which the
Makers intend to make a Distribution, provided the Makers shall have
notified the Lender and the Other Lenders of such later date, in writing,
not later than January 15 of such year (a "February ARC Payment Date").
The term "Term Loan Principal Payments" means, as of any ARC
Payment Date, all payments which have theretofore been made toward the
reduction of the outstanding principal balance under the Term Loan,
including, without limitation, all payments of Minimum Required
Curtailments made in the same Loan Year and all prior Loan Years, all
payments of Additional Required Curtailments made in the same Loan Year and
all prior Loan Years and all prior voluntary prepayments made in the same
Loan Year and all prior Loan Years.
(c) The total outstanding principal under the Term Loan Notes
and all accrued but unpaid interest shall be fully due and payable on the
Maturity Date.
3.3 All payments of principal and interest under the Term Loan
Notes shall be made in lawful money of the United States which shall be
legal tender in payment of all debts, public and private, at the time of
payment.
3.4 The Term Loan Notes may be prepaid in whole or in part at any
time and from time to time, without penalty or premium, provided: (i) any
such prepayment shall be preceded by at least three (3) Business Banking
Days' prior written notice to the Agent and (ii) any such prepayment shall
be accompanied by accrued interest to the date of prepayment and any other
obligations and payments then due under the terms of the Term Loan Notes.
If the Makers shall make a payment or prepayment of all or any portion of
the principal amount outstanding then subject to a LIBO Rate Tranche, prior
to the applicable termination date thereof (including, without limitation,
upon the acceleration of the Maturity Date following an Event of Default),
or the Makers shall attempt to rescind a Rate Election Notice for a
specified LIBO Rate Tranche, after the Makers have submitted such Rate
Election Notice to the Agent, then, within three (3) Business Banking Days
following written notice from the Agent, the Makers shall pay to the Agent
the amount of any loss or cost incurred by the Agent, the Lender or the
Other Lender resulting therefrom, including, without limitation, any loss
or cost resulting from the liquidation or re-employment of deposits
required to fund or maintain the subject LIBO Rate Tranche, not to exceed
the amount of interest which would have been earned on the amount prepaid
for the balance of the subject Interest Period, at a rate equal to the
difference, not less than zero, of the LIBO Rate as of the first day of the
Interest Period less the LIBO Rate as of the date of such prepayment, for a
corresponding Interest Period commencing on the date of such prepayment.
The obligations of the Makers under this section shall survive payment of
the Term Loan Notes.
3.5 The Term Loan is a non-revolving loan, so that the Makers shall
not have the right to request re-advances of prepaid monies.
3.6 All payments of principal and interest under the Term Loan
Notes shall be made in immediately available funds by 11:00 a.m.
(Ft. Lauderdale, Florida time) on a Business Banking Day, to the Agent for
the account of the Lenders, at the office of the Agent at First Union
National Bank, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇, or by wire to ABA #▇▇▇▇▇▇▇▇▇, Account
No.465906 ▇▇▇▇▇▇▇, Reference "Arvida," Attention: ▇▇▇▇ ▇▇▇▇▇▇, or at such
other place as the Agent may instruct. Any payments of principal or
interest made after 11:00 a.m. (Ft. Lauderdale, Florida time) shall be
deemed to be payments made on the next following Business Banking Day, for
all purposes, hereof, including, without limitation, the accrual of
interest. Should any payment under the Term Loan Notes become due and
payable on a day other than a Business Banking Day, the maturity thereof
shall be extended to the next succeeding Business Banking Day, and, in the
case of any payment of principal, interest shall be payable thereon as
calculated pursuant hereto, for each Business Banking Day such principal is
outstanding (provided, however, any payment of principal received on any
Business Banking Day by 11:00 a.m. (Ft. Lauderdale, Florida time) shall not
be deemed to be outstanding on such Business Banking Day).
3.7 Notwithstanding anything to the contrary set forth herein, the
Agent shall provide the Makers with written notice prior to the first
Business Banking Day of each month of the interest installment with respect
to the Term Loan Notes which is payable on such first Business Banking Day
of such month. With respect to each such monthly installment of interest,
the Agent and the Lenders hereby grant to the Makers a grace period for the
payment of same, which shall extend to the later of: (a) the fifteenth
(15th) day of the month or (b) if the Makers shall not have received
written notice of the monthly interest installment from the Agent, prior to
the first Business Banking Day of any month and the Makers shall have
provided written notice to the Agent, no later than such first Business
Banking Day of the month, of such Agent's failure to provide the Makers
with written notice of such interest installment, then, the date fifteen
(15) days from receipt by the Makers of such written notice of the monthly
interest installment. If the Agent shall not receive written notice from
the Makers on or before the first Business Banking Day of a month, of the
Agent's failure to provide written notice of an interest installment, then,
for all purposes of this Note, notwithstanding that the Makers may later
request such written notice of such interest installment, such grace period
shall extend to no later than the fifteenth (15th) day of such month.
3.8 Any payment required to be paid by the Term Loan Notes, the
Loan Documents or the Credit Agreement, with the exception of interest and
principal, shall be due and payable no later than fifteen (15) days from
receipt by the Makers from the Agent of written notice of the required
payment.
3.9 Provided the Agent has not exercised its right to accelerate
the Term Loan Notes as provided in the Term Loan Notes, the Credit
Agreement or the other Loan Documents: (a) in the event any payment of
principal required under the Term Loan Notes, either pursuant to the terms
hereof or the terms of the Credit Agreement, is not received by the Agent,
for the account of the Lender and Other Lender, by the fifteenth (15th) day
following the day on which such payment is due, the Makers shall pay to the
Agent, for the account of the Lender and Other Lender, a late charge of
five percent (5%) of the payment not so received, the parties agreeing that
said charge is a fair and reasonable charge for the late payment and shall
not be deemed a penalty or as compounding interest, and (b) in the event
any scheduled payment of interest required under the Term Loan Notes is not
received by the Agent, for the account of the Lender and Other Lenders, by
the later of (i) fifteen (15) days from receipt by the Makers of written
notice of the monthly interest installment and (ii) the fifteenth (15th)
day of such month, the Makers shall pay to the Agent, for the account of
the Lender and Other Lenders, a late charge of five percent (5%) of the
payment not so received, the parties agreeing that said charge is a fair
and reasonable charge for the late payment and shall not be deemed a
penalty or as compounding interest. Further, if any payment required to be
paid by the Term Loan Notes, the Credit Agreement or the other Loan
Documents, with the exception of interest and principal, is not paid within
fifteen (15) days from receipt by the Makers from the Agent of written
notice of the required payment, the Makers shall pay to the Agent, for the
account of the Lender and Other Lenders, a late charge of five percent (5%)
of the payment not so received, the parties agreeing that said charge is a
fair and reasonable charge for the late payment and shall not be deemed a
penalty or as compounding interest.
40 Collateral Security. This Note and the other Term Loan Note are
issued pursuant to the Credit Agreement. This Note and the other Term Loan
Note are secured by the Credit Agreement, the Security Documents and the
other Loan Documents. Reference is hereby made to the Credit Agreement,
the Security Documents and the other Loan Documents for a description of
Events of Default and rights of acceleration of the Maturity Date upon the
occurrence of an Event of Default. It is expressly agreed that all of the
covenants, conditions and agreements contained in the Credit Agreement, the
Security Documents and the other Loan Documents are made a part of this
Note and the other Term Loan Note.
50 Events of Default.
5.1 Upon the occurrence of an Event of Default, the Agent may, and
upon the direction of the Required Lenders, shall declare the entire amount
of this Note and the other Term Loan Note, including the principal balance
then outstanding thereunder, together with all interest accrued thereon, to
be immediately due and payable, without notice, (the Makers hereby
expressly waive notice of such Event of Default), time being of the essence
of this Term Loan Note and the other Term Loan Note. Any Event of Default
under this Note shall be an Event of Default under all other Loan Documents
and any Event of Default under any other Loan Document shall be an Event of
Default hereunder.
5.2 In the event the Agent accelerates the Term Loan Notes as
herein provided or the full amount of outstanding principal and interest
under the Term Loan Notes is not fully repaid to the Agent, for the account
of the Lenders on or before the Maturity Date, then the entire unpaid
principal balance under the Term Loan Notes, together with all interest
accrued thereon, shall bear interest from the date of an Event of Default
or from the Maturity Date, respectively, at the Default Rate. Any late
charge paid by the Makers shall be applied to the interest charged at the
Default Rate after acceleration of the Term Loan Notes.
5.3 The remedies of the Agent, the Lender and Other Lender, as
provided herein, or in the Security Documents, the other Loan Documents or
Credit Agreement shall be cumulative and concurrent and may be pursued
singularly, successively or together, by the Agent in accordance with the
terms of the Credit Agreement, and may be exercised as often as the
occasion therefor shall arise. Notwithstanding anything herein seemingly
to the contrary, neither the Agent, the Lender or the Other Lender shall
take any action, including, without limitation, in connection with the
enforcement of any of their rights under the Term Loan Notes, the Credit
Agreement or other Loan Documents, unless such action is consistent with
the action taken by the Agent, or the Other Lender, as the case may be,
with respect to all of the Term Loan Notes and in accordance with the
provisions of the Credit Agreement.
60 Usury. Nothing herein contained, nor in any instrument or
transaction related hereto, shall be construed or so operate as to require
the Makers, or any person liable for the payment of the Loan evidenced by
the Term Loan Notes, to pay interest in an amount or at a rate greater than
the highest non-usurious rate permissible under applicable law as amended
from time to time. Should any interest or other charges paid by the
Makers, or any party liable for the payment of the Loan evidenced by the
Term Loan Notes, result in the computation or earning of interest in excess
of the highest non-usurious rate permissible under applicable law, then any
and all such excess shall be and the same is hereby waived by the Agent,
the Lender and the Other Lender, and all such excess shall be paid by the
Agent, the Lender or the Other Lender, as the case shall be, to the Makers
or to any party liable for the payment of the Loan evidenced by the Term
Loan Notes, it being the intent of the parties hereto that under no
circumstances shall the Makers or any party liable for the payment of the
Loan hereunder, be required to pay interest in excess of the highest non-
usurious rate permissible under applicable law as amended from time to
time. By operation of Section 687.12, Florida Statutes (1996), the
interest rate charged under the Note and the other Term Loan Notes is
authorized by Chapters 658, 665 and 687, Florida Statutes (1996) and
applicable federal law.
70 Waivers/Miscellaneous Matters.
7.1 The Term Loan Notes are to be construed according to the appli-
cable laws of the State of Florida and the United States of America. Any
action brought upon the enforcement of this Note and the other Term Loan
Notes is hereby authorized to be instituted and prosecuted in Broward
County, Florida, or at the United States District Court for the Southern
District of Florida, at the election of the Agent, subject to and in
accordance with the terms of the Credit Agreement.
7.2 The Term Loan Notes may not be changed orally, but only by an
agreement in writing, signed by the party against whom enforcement of any
waiver, change, modification or discharge is sought.
7.3 Each maker, endorser and guarantor or any person, firm or
corporation becoming liable under this Note and the other Term Loan Note
hereby consents to any extension or renewal of this Note and the other Term
Loan Note or any part thereof, without notice, and agrees that it will
remain liable under this Note and the other Term Loan Note during any
extension or renewal thereof, until the indebtedness evidenced hereby and
thereby is paid in full.
7.4 Notwithstanding anything to the contrary herein or in the
Credit Agreement, the Security Documents or other Loan Documents (or any
instruments or certificates executed or delivered in connection therewith
at any time or times), neither any present or future constituent partner
(as hereinafter defined) in, or agent of, any of the Makers, nor any
shareholder, member, officer, manager, director, employee, trustee,
beneficiary or agent of any corporation or other entity that is or becomes
a constituent partner in any of the Makers shall be personally liable,
directly or indirectly (and neither the Agent, the Lender or the Other
Lender shall have any recourse against any property or assets of any such
constituent partner or other person or entity) under or in connection with
the Term Loan Notes, the Credit Agreement, the Security Documents, the
other Loan Documents, the Loans, or any instruments securing or otherwise
executed in connection therewith, or any certificate delivered in
connection therewith, or any amendments or modifications to any of the
foregoing made at any time or times, heretofore or hereafter (such persons
as described in this sentence being herein collectively referred to as
"Non-Recourse Persons"), provided, however, Non-Recourse Persons shall not
include any Maker or any Subsidiary of a Maker that would otherwise be
liable as a general partner in a Maker. The recourse of the Agent, the
Lender, the Other Lender and their successors and assignees under or in
connection with the Term Loan Notes, the Security Documents, the Credit
Agreement, the other Loan Documents, the Loans and such instruments and
certificates, and any such amendments or modifications, shall be limited to
the assets of the Makers, and the Agent, the Lender, the Other Lender and
each of their successors and assignees waive and do hereby waive any such
personal liability against any such Non-Recourse Persons. For the purposes
of the Term Loan Notes, the Security Documents, the Credit Agreement and
each other Loan Document and any such instruments and certificates and any
such amendments or modifications, neither the negative capital account of a
constituent partner in any Maker, nor any obligation of any constituent
partner in any Maker to restore a negative capital account or to advance or
contribute capital to any Maker or any other constituent partner in any
Maker shall be deemed to be the property or the asset of any Maker or any
such other constituent partner (and neither the Agent, the Lender or the
Other Lender nor any of their successors or assignees shall have any right
to collect, enforce or proceed against or with respect to any such negative
capital account or partner's obligation to restore, advance or contribute).
As used in this section, the term "constituent partner" means any direct
partner in any Maker, and any person or entity that is a partner in any
partnership that, directly or indirectly through one or more other
partnerships, is a partner in any Maker.
7.5 Time is of the essence hereof with regard to the performance
and observance of all of the terms, provisions and conditions hereof on the
part of the Makers to be observed and/or performed.
7.6 All sums received by the Agent for application to this Note and
the other Term Loan Note shall be applied by the Agent in the manner set
forth in Section 2.8 of the Credit Agreement.
7.7 The Makers are strictly liable for and hereby agree to pay or
reimburse the Agent (but not the Other Lender) for, and hold it harmless
from and against all of its reasonable third party costs and expenses
incurred in connection with the collection or enforcement of, or the
preservation of any rights under, this Note, the other Term Loan Note, the
Credit Agreement or other Loan Documents, including, without limitation,
the reasonable fees and disbursements of counsel for the Agent, including
attorneys' fees out of court, in trial, on appeal, in bankruptcy
proceedings or otherwise. The Makers shall pay all such amounts in
accordance with the terms of the Credit Agreement, and until repaid, such
sums shall bear interest at the Default Rate.
7.8 All notices and like communications required or permitted to be
given pursuant to the provisions of this Note and the other Term Loan Note
shall be given in accordance with the notice provisions of Section 11.4 of
the Credit Agreement.
7.9 As used herein, the terms "Makers," "Agent," "Lender" and
"Other Lender" shall be deemed to include their respective successors and
assigns.
7.10 In the event any one or more of the provisions of this Note or
the other Term Loan Note shall for any reasons be held to be invalid,
illegal, or unenforceable, in whole or in part or in any respect, or in the
event one or more of the provisions of this Note or the other Term Loan
Note operates or would prospectively operate to invalidate this Note or the
other Term Loan Note, then in any of those events, only such provision or
provisions shall be deemed null and void and shall not effect any other
provision of this Note or the other Term Loan Note. The remaining
provisions of this Note and the other Term Loan Note shall remain operative
and in full force and effect and in shall no way be affected, prejudiced or
disturbed thereby. In the event any provisions of this Note or the other
Term Loan Notes are inconsistent with any provisions of the Credit
Agreement, the Security Documents or other Loan Documents, or any other
agreements or documents executed in connection with the Term Loan Notes,
the Term Loan Note shall control.
7.11 It is expressly understood and agreed that neither the Agent,
the Lender or any Other Lender shall ever be construed for any purposes, to
be the partner, joint venturer, principal or associate of the Makers or any
of them or any person or party claiming by, through or under the Makers or
any of them in the conduct of their respective businesses.
7.12 The undersigned Makers and any endorsers, sureties, guarantors
and all others who are or may become liable for the payment hereof (a)
severally waive presentment for payment, demand, notice of demand, notice
of nonpayment or dishonor, protest and notice of protest of this Note and
the other Term Loan Note, and all other notices in connection with the
delivery, acceptance, performance or enforcement of the payment of this
Note and the other Term Loan Note, (b) expressly consent to all extensions
of time, renewals, postponements of time of payment of this Note and the
other Term Loan Note or other modifications from time to time prior to or
after the Maturity Date, without notice, consent or consideration to any of
the foregoing, (c) expressly agree to any substitution, exchange, addition
or release of any of the other Loan Documents or the addition or release of
any party or person primarily or secondarily liable hereon, (d) expressly
agree that the Agent and/or the Lender or Other Lender shall not be
required first to institute any suit, or to exhaust their remedies against
the Makers or any other person or party to become liable hereunder or
against the other Loan Documents in order to enforce the payment of this
Note and the other Term Loan Note, and (e) expressly agree that,
notwithstanding the occurrence of any of the foregoing, they shall be and
remain, jointly and severally, directly liable for all sums due under this
Note, the other Term Loan Note and the other Loan Documents subject to the
terms and conditions hereof and thereof.
7.13 Neither the Agent or the Lender or Other Lender shall be
deemed, by any act of omission or commission, to have waived any of their
rights or remedies hereunder unless such waiver is in writing given in
accordance with the terms of the Credit Agreement, and then only to the
extent specifically set forth in the writing. A waiver with reference to
one event shall not be construed as continuing or as a bar to or waiver of
any right or remedy as to a subsequent event.
7.14 Neither this Note or the other Term Loan Note nor any provision
hereof or thereof may be changed or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change or termination is sought.
7.15 Failure to accelerate this Note or the other Term Loan Note
after an Event of Default, or the acceptance of a past due installment,
shall not be construed as a novation of the contract or a waiver of the
right of the Agent or the Lender or Other Lender to thereafter insist upon
strict compliance with the terms of this Note and the other Term Loan Note
without previous notice of such intention being given to the Makers.
7.16 Notwithstanding anything to the contrary in this Note, the
other Term Loan Notes, the Credit Agreement, the Security Documents or
other Loan Documents, the maximum liability of any Maker other than
Arvida/JMB Partners, L.P. (herein a "Maker Subsidiary" or "Maker
Affiliate") for the Obligations created, evidenced and secured thereby and
hereby shall not exceed the maximum amount, as such maximum amount shall be
determined by a court of competent jurisdiction of any such Maker
Subsidiary's or Maker Affiliate's liability therefor which may be incurred
without rendering the Obligations, as they relate to such Maker Subsidiary
or Maker Affiliate, voidable as a fraudulent conveyance or fraudulent
transfer under the Bankruptcy Code or under any other present or future
federal or state laws or statutes relating to bankruptcy, insolvency,
assignment for the benefit of creditors or other relief for debtors,
including, without limitation, the Uniform Fraudulent Transfer Act or the
Uniform Fraudulent Conveyance Act, as in effect in any jurisdiction wherein
any such Maker Subsidiary's or Maker Affiliate's Solvency (as defined in
the Credit Agreement) is subject to determination. For purposes of
determining such liability of any Maker Subsidiary or Maker Affiliate, due
consideration shall be given to the benefits received, directly or
indirectly, by such Maker Subsidiary or Maker Affiliate from the Loans (as
defined in the Credit Agreement) made pursuant to the Commitments (as
defined in the Credit Agreement).
7.17 The section headings of this Note and the other Term Loan Note
are for reference purposes only and are to be given no effect in the
construction or interpretation of this Note or the other Term Loan Note.
THE MAKERS AND THE LENDER BY ITS ACCEPTANCE HEREOF HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS NOTE OR ANY OTHER TERM LOAN NOTE OR THE
CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY MAKERS, THE AGENT,
THE LENDER OR ANY OTHER LENDER.
SIGNATURE PAGES FOLLOW
IN WITNESS WHEREOF, the undersigned Makers have executed this Note on
the date set forth above.
MAKERS:
ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
THE AOK GROUP,
a Florida general partnership
By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its
sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS,
a Florida general partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
METRODRAMA JOINT VENTURE,
a Florida general partnership
By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its
sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS, a
Florida general partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
ARVIDA/JMB PARTNERS,
a Florida general partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
ARVIDA GRAND BAY LIMITED PARTNERSHIP-IV,
a Delaware limited partnership
By: ARVIDA GRAND BAY MANAGERS, INC.,
a Delaware corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
GULF AND PACIFIC COMMUNICATIONS
LIMITED PARTNERSHIP,
a Delaware limited partnership
By: PACIFIC PROPERTIES, INC.,
an Illinois corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
WESTON HILLS COUNTRY CLUB LIMITED
PARTNERSHIP,
a Delaware limited partnership
By: WHCC, INC.,
an Illinois corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
SOUTHEAST FLORIDA HOLDINGS, INC.,
an Illinois corporation
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
SCHEDULE 1
EXHIBIT "B" TO BIFURCATION OF NOTE AGREEMENT
THE TAX HAS BEEN PAID AND THE PROPER DOCUMENTARY STAMPS HAVE BEEN AFFIXED
TO THE MORTGAGE AND SECURITY AGREEMENT SECURING THIS PROMISSORY NOTE.
TERM LOAN
PROMISSORY NOTE
$18,800,000 Effective Date: September 1, 1998
FOR VALUE RECEIVED, the undersigned, Arvida/JMB Partners, L.P., a
Delaware limited partnership, Arvida/JMB Partners, a Florida general
partnership, Arvida Grand Bay Limited Partnership IV, a Delaware limited
partnership, The AOK Group, a Florida general partnership, Metrodrama Joint
Venture, a Florida general partnership, Southeast Florida Holdings, Inc.,
an Illinois corporation, Gulf and Pacific Communications Limited
Partnership, a Delaware limited partnership, and Weston Hills Country Club
Limited Partnership, a Delaware limited partnership, all having an office
at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
collectively referred to as the "Makers"), jointly and severally promise to
pay to the order of First Union National Bank, a national banking
association, its successors or assigns (the "Lender"), the principal sum of
EIGHTEEN MILLION EIGHT HUNDRED THOUSAND DOLLARS ($18,800,000), or the
Lender's Actual Share of all sums as may be advanced under the Term Loan
Commitment, pursuant to and in accordance with the Credit Agreement,
together with interest on the principal balance of this Note outstanding
from time to time, as same shall accrue thereon in accordance with the
terms hereof, but not to exceed the maximum non-usurious rate permitted by
law.
10 Definitions. Capitalized terms not otherwise defined herein shall
have the meanings ascribed to such terms in the Credit Agreement. In
addition to capitalized terms defined elsewhere herein, the following
capitalized terms shall have the meanings ascribed to them as follows:
1.1 "Actual Share" means the percentage interest of the Lender in
the Advance made pursuant to the Term Loan Commitment.
1.2 "Adjusted LIBO Rate" means, relative to any LIBO Rate Tranche
to be made, continued or maintained as, or converted into, a LIBO Rate
Tranche for any Interest Period, a rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of one percent) equal to the quotient of
(i) the LIBO Rate applicable to the relevant Interest Period, divided by
(ii) the result of one minus the Reserve Percentage applicable to such
Interest Period.
1.3 "Agent" means First Union National Bank, a national banking
association.
1.4 "Business Banking Day" means a day that is not a Saturday, a
Sunday, or a day on which the Agent is closed pursuant to authorization or
requirement of law.
1.5 "Committed Share" means the percentage interest of the Lender
in the Term Loan Commitment.
1.6 "Credit Agreement" means the Credit Agreement dated July 31,
1997 between Lender and the Borrower (among others), as amended, of even
date herewith, as the same may be amended, supplemented, restated, replaced
or otherwise modified from time to time.
1.7 "Default Rate" means the lesser of: (i) five percent (5%) above
the Note Prime Rate and (ii) the maximum non-usurious rate permitted under
applicable law, provided the maximum interest rate shall never be more then
twenty-four and 99/100 percent (24.99%).
1.8 "Event of Default" has the meaning ascribed to such term in the
Credit Agreement.
1.9 "Interest Period" means, in the case of a LIBO Rate Tranche,
the period commencing on (and including) the Business Banking Day selected
by the Makers as the date on which such LIBO Rate Tranche is made or
continued as, or converted into a LIBO Rate Tranche pursuant to the terms
of this Note, and ending on (but excluding) the day which numerically
corresponds to such date one, two, three or six months thereafter (or if
such month has no numerically corresponding day, on the last Business
Banking Day of such month), in each case as the Makers may select, provided
that (a) if such Interest Period would otherwise end on a day which is not
a Business Banking Day, such Interest Period shall end on the next
following Business Banking Day (unless, in the case of a LIBO Rate Tranche,
such next following Business Banking Day is the first Business Banking Day
of the calendar month, in which case such Interest Period shall end on the
Business Banking Day next preceding such numerically corresponding day);
and (b) no Interest Period may end on a date later than the Maturity Date.
1.10 "LIBO Rate" means, relative to any Interest Period, a rate of
interest per annum (rounded upwards, if necessary, to the nearest 1/100 of
one percent) equal to the rate for US dollar deposits with maturities
comparable to such Interest Period for delivery on the first day of such
Interest Period which appears on the Reuters Screen LIBO Page, as of
11:00 a.m. (London time) on the day that is two (2) London Banking Days
preceding the commencement date of the Interest Period. If at least two
(2) such offered rates appear on the Reuters Screen LIBO Page, the rate
will be the arithmetic mean of such offered rates. The Agent may, in its
discretion, use any other publicly available index or reference rate
showing rates offered for United States dollar deposits in the London
Interbank market as of the applicable date. In addition, the Agent may, in
its discretion, use rate quotations for daily or annual periods in lieu of
quotations for substantially equivalent monthly periods, in the absence of
such quotations for substantially equivalent monthly periods. Each
determination of the LIBO Rate applicable to a particular Interest Period
shall be made by the Agent and shall be conclusive and binding upon the
Makers and Lenders absent manifest error.
1.11 "LIBO Rate Tranche" means a Tranche bearing interest at all
times during the Interest Period applicable to such Tranche, at a fixed
rate of interest equal to the Note LIBO Rate applicable to such Interest
Period.
1.12 "Loan Documents" has the meaning described to such term in the
Credit Agreement.
1.13 "Loan Year" means each of the twelve (12) month periods
commencing on July 31, 1997 and on the first, second and third
anniversaries hereof.
1.14 "London Banking Day" means each day other than a Saturday, a
Sunday or any holiday on which commercial banks in London, England are
closed for business.
1.15 "Maturity Date" means the earlier of: (i) July 31, 2001 and
(ii) any earlier date upon which the principal balance outstanding
hereunder, together with all interest accrued thereon, shall become
immediately due and payable following an Event of Default, in accordance
with provisions of the Credit Agreement.
1.16 "Note" means this Term Loan Promissory Note, in the amount of
the Lender's Committed Share of the Term Loan Commitment, as same maybe
amended, supplemented, restated, replaced or otherwise modified from time
to time.
1.17 "Note LIBO Rate" means the Adjusted LIBO Rate applicable to a
specific LIBO Rate Tranche selected by the Makers for a relevant Interest
Period, plus 175 basis points.
1.18 "Note Prime Rate" means the Prime Rate applicable to the Prime
Rate Tranche. The Note Prime Rate shall be increased or decreased
effective on any date on which the Prime Rate shall be increased or
decreased.
1.19 "Other Lender" means, Bank United, a federal savings bank, also
being a "Lender".
1.20 "Prime Rate" means the annual rate of interest announced from
time to time by First Union National Bank, as its Prime Rate. The Prime
Rate is a reference rate for the information and use of the Agent in
establishing the actual rates to be charged to borrowers and is not
necessarily the lowest rate charged by the Agent. Should First Union
National Bank not publish a Prime Rate at any time during the term of this
Note, the Agent, in its reasonable discretion, may choose a substitute
Prime Rate. The rate of interest shall change automatically and immediately
as of the date of any change in the Prime Rate without notice to Borrower
or any endorser, surety or guarantor, if any.
1.21 "Prime Rate Tranche" means a Tranche bearing interest at the
Note Prime Rate.
1.22 "Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor
thereto or other rule, regulation or official interpretation of said Board
of Governors relating to reserve requirements applicable to member banks of
the Federal Reserve System.
1.23 "Required Lenders" has the meaning ascribed to such term in the
Credit Agreement.
1.24 "Reserve Percentage" means the stated maximum rate (expressed
as a decimal) at which reserves are required to be maintained by the Agent
during an Interest Period, including, without limitation (i) any basis,
supplemental, marginal, or emergency reserve under any regulations of any
governmental authority to which the Agent is subject, (ii) any reserve
prescribed by the Board of Governors of the Federal Reserve System (or any
successor), including, without limitation, Regulation D, for determining
the maximum reserve requirement in respect of "Eurocurrency liabilities"
(or in respect of any other category of liabilities which includes deposits
by reference to which the LIBO Rate is determined). Without limiting the
effect of the foregoing, the Reserve Percentage shall reflect any other
reserves required to be maintained by the Agent under any regulation of any
governmental authority to which the Agent is subject against (a) any
category of liabilities that include deposits with reference to which the
LIBO Rate is to be determined or (b) any category of extension of credit or
other assets that includes loans bearing interest at a rate based on the
LIBO Rate. Each determination of the Reserve Percentage shall be made by
the Agent and shall be conclusive and binding upon the Makers and Lenders
absent manifest error.
1.25 "Security Documents" has the meaning ascribed to such term in
the Credit Agreement.
1.26 "Term Loan Commitment" has the meaning ascribed to such term in
the Credit Agreement.
1.27 "Term Loan Notes" means this Note and the other Term Loan Note
executed by the Makers in favor of the Other Lenders, each dated of even
date herewith, in the aggregate amount of the Term Loan Commitment, as same
may be amended, supplemented, renewed, restated, replaced or otherwise
modified from time to time.
1.28 "Tranche" means any portion of the outstanding principal
balance under the Term Loan Notes bearing interest at the applicable Note
LIBO Rate for a specific Interest Period, as selected by the Makers in
accordance with Section 2.1, below, and any portion of the outstanding
principal balance under the Term Loan Notes which may from time to time
bear interest at the Note Prime Rate.
20 Selection and Calculation of Interest Rate.
2.1 Provided that no Event of Default or circumstance which with
the passage of time or giving of notice would become an Event of Default
then exists under the Loan Documents, and provided there shall at no time
be permitted to exist more than four LIBO Rate Tranches with respect to the
total principal balance outstanding under the Term Loan Notes, the Makers
shall have the right to elect to have the Note LIBO Rate then in effect for
an Interest Period apply to a LIBO Rate Tranche, in accordance with, and
subject to the provisions of this Section 2.1. To make an election to have
such Note LIBO Rate apply to any LIBO Rate Tranche, from time to time, the
Makers shall give to the Agent irrevocable notice (a "Rate Election
Notice") not later than 11:00 a.m. (Ft. Lauderdale, Florida time) at least
three (3) Business Banking Days prior to the commencement date of each such
Interest Period, which Rate Election Notice shall be addressed as follows,
and shall be given in writing (by telecopy, hand delivery, or overnight
delivery service), in accordance with the provisions of Section 11.4 of the
Credit Agreement:
▇▇▇▇ ▇▇▇▇▇▇, Vice President
First Union National Bank
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Each such Rate Election Notice shall be in the form attached hereto as
Schedule 1 and shall specify: (i) the commencement day of the Interest
Period which shall be a Business Banking Day (and, with respect to any then
existing LIBO Rate Tranche, shall not be a date prior to the termination
date of such then existing LIBO Rate Tranche), (ii) the principal amount of
the LIBO Rate Tranche which shall be subject to the application of the Note
LIBO Rate, which shall be in a minimum amount of $2,000,000.00, and in
multiples of $100,000.00 and (iii) the applicable Interest Period which
shall apply to such LIBO Rate Tranche, provided, however, that no Interest
Period may extend beyond the Maturity Date.
2.2 If the Agent determines, absent manifest error, that the
maintenance of any Note LIBO Rate would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, of if the
Agent determines that the interest rate applicable to the Note LIBO Rate
does not accurately reflect the cost of maintaining any LIBO Rate Tranche
subject to such rate, then, at the election of the Agent, the Makers shall
not be entitled thereafter to select a Note LIBO Rate to be applicable to
any portions of the total outstanding principal balance under the Term Loan
Notes, and the interest rate applicable to all of the outstanding principal
balance under the Term Loan Notes then subject to the Note LIBO Rate for
any applicable Interest Period, shall, upon the expiration of all such
applicable Interest Periods, be converted to the Prime Rate.
2.3 In the event that the Makers shall fail to provide a timely
Rate Election Notice for the election of the Note LIBO Rate to apply to any
Advance or to any LIBO Rate Tranche, as of the termination date of the
applicable Interest Period for such Tranche, then as the date of such
Advance, or as of such termination date of such LIBO Rate Tranche, as the
case may be, the Prime Rate shall apply to such Advance or LIBO Rate
Tranche until the next eligible effective date for which the Makers shall
have provided a timely Rate Election Notice, and such Advance or such
principal amount previously comprising a LIBO Rate Tranche, shall
thereafter be deemed to be included in the Prime Rate Tranche.
2.4 Interest shall be calculated on the daily total outstanding
balance of all Advances of Loan Proceeds under the Term Loan Commitment, as
such Advances are evidenced by the Term Loan Notes, as follows:
(i) interest shall accrue on each LIBO Rate Tranche, commencing with the
effective date for each such LIBO Rate Tranche, at the applicable Note LIBO
Rate for the applicable Interest Period and (ii) interest shall accrue on
the Prime Rate Tranche, which shall comprise all of the outstanding
principal balance under the Term Loan Notes not otherwise subject to a LIBO
Rate Tranche, at the Note Prime Rate, changing when and as the Prime Rate
changes. Interest shall be computed through and including the date of any
payment and shall be calculated for actual days elapsed on the basis of a
360 day year (i.e. interest for each day on which any principal is
outstanding shall be calculated at the applicable interest rate described
above, divided by 360).
30 Payment of Interest and Principal.
3.1 Interest, calculated as above provided, shall be due and
payable by the Makers to the Agent, for the account of the Lender and Other
Lender, in accordance with their Actual Shares of the total outstanding
principal balance of the Term Loan Notes, subject to the provisions of
Section 3.7 hereof, on the first Business Banking Day of the first calendar
month immediately following the Advance of Loan Proceeds under the Term
Loan Commitment and continuing on the first day of each month thereafter
until the Maturity Date.
3.2 The Makers shall make payments in reduction of the total
principal balance outstanding under the Term Loan Notes, as follows:
(a) The Makers shall pay to the Agent, for the account of the
Lender and the Other Lender, on or before the last Business Banking Day of
each Loan Year, the sum of $12,500,000.00 (the "Minimum Required
Curtailment").
(b) The Makers shall pay to the Agent, for the account of the
Lender and the Other Lender, on each ARC Payment Date, an amount (the
"Additional Required Curtailment") calculated as follows:
(A) On the 1999 February ARC Payment Date and each
subsequent February ARC Payment Date, an amount equal to the sum of:
(x) the ARC Deficit, if any, to the extent the ARC Deficit does not exceed
the Adjusted CFAPF for the fiscal year ended on the immediately preceding
December 31, plus (y) twenty-five percent (25%) of the remainder of the
Adjusted CFAPF for the fiscal year ended on the immediately preceding
December 31, after any payment of the ARC Deficit pursuant to subparagraph
(x) hereinabove.
(B) On each August ARC Payment Date, an amount equal to
the sum of: (x) the ARC Deficit, if any, plus (y) twenty-five percent (25%)
of the remainder of any Distribution then made, after any payment of the
ARC Deficit pursuant to subparagraph (x) hereinabove.
(C) Notwithstanding anything herein to the contrary,
those portions of the Additional Required Curtailment calculated pursuant
to subpart (y) of subsection (A); and subpart (y) of subsection (B) shall
in the aggregate, in any one (1) Loan Year, not exceed $6,250,000.00.
The term "Adjusted CFAPF" means Cash Flow After Project
Financing less all Term Loan Principal Payments and all interest paid on
the Term Loan during the preceding fiscal year.
The term "Cash Flow After Project Financing" has the meaning
ascribed to such term in the Credit Agreement.
The term "Distribution" has the meaning ascribed to such term
in the Credit Agreement.
The term "ARC Deficit" means: (i) as of any ARC Payment Date in
the second Loan Year, the difference of $18,750,000.00 less the sum of all
Term Loan Payments theretofore paid, (ii) as of any ARC Payment Date in the
third Loan Year, the difference of $37,500,000.00 less the sum of all Term
Loan Payments theretofore paid and (iii) as of any ARC Payment Date in the
fourth Loan Year, the difference of $56,250,000.00 less the sum of all Term
Loan Payments theretofore paid (for the purpose of this Note, the first
"Loan Year" shall be deemed to have commenced July 31, 1997).
The term "ARC Payment Date" means: (i) any Business Banking Day
in any August of any Loan Year, on which a Distribution is made, if any (an
"August ARC Payment Date"), and (ii) the first Business Day of each
February of each Loan Year, or such later date in February on which the
Makers intend to make a Distribution, provided the Makers shall have
notified the Lender and the Other Lenders of such later date, in writing,
not later than January 15 of such year (a "February ARC Payment Date").
The term "Term Loan Principal Payments" means, as of any ARC
Payment Date, all payments which have theretofore been made toward the
reduction of the outstanding principal balance under the Term Loan,
including, without limitation, all payments of Minimum Required
Curtailments made in the same Loan Year and all prior Loan Years, all
payments of Additional Required Curtailments made in the same Loan Year and
all prior Loan Years and all prior voluntary prepayments made in the same
Loan Year and all prior Loan Years.
(c) The total outstanding principal under the Term Loan Notes
and all accrued but unpaid interest shall be fully due and payable on the
Maturity Date.
3.3 All payments of principal and interest under the Term Loan
Notes shall be made in lawful money of the United States which shall be
legal tender in payment of all debts, public and private, at the time of
payment.
3.4 The Term Loan Notes may be prepaid in whole or in part at any
time and from time to time, without penalty or premium, provided: (i) any
such prepayment shall be preceded by at least three (3) Business Banking
Days' prior written notice to the Agent and (ii) any such prepayment shall
be accompanied by accrued interest to the date of prepayment and any other
obligations and payments then due under the terms of the Term Loan Notes.
If the Makers shall make a payment or prepayment of all or any portion of
the principal amount outstanding then subject to a LIBO Rate Tranche, prior
to the applicable termination date thereof (including, without limitation,
upon the acceleration of the Maturity Date following an Event of Default),
or the Makers shall attempt to rescind a Rate Election Notice for a
specified LIBO Rate Tranche, after the Makers have submitted such Rate
Election Notice to the Agent, then, within three (3) Business Banking Days
following written notice from the Agent, the Makers shall pay to the Agent
the amount of any loss or cost incurred by the Agent, the Lender or the
Other Lender resulting therefrom, including, without limitation, any loss
or cost resulting from the liquidation or re-employment of deposits
required to fund or maintain the subject LIBO Rate Tranche, not to exceed
the amount of interest which would have been earned on the amount prepaid
for the balance of the subject Interest Period, at a rate equal to the
difference, not less than zero, of the LIBO Rate as of the first day of the
Interest Period less the LIBO Rate as of the date of such prepayment, for a
corresponding Interest Period commencing on the date of such prepayment.
The obligations of the Makers under this section shall survive payment of
the Term Loan Notes.
3.5 The Term Loan is a non-revolving loan, so that the Makers shall
not have the right to request re-advances of prepaid monies.
3.6 All payments of principal and interest under the Term Loan
Notes shall be made in immediately available funds by 11:00 a.m.
(Ft. Lauderdale, Florida time) on a Business Banking Day, to the Agent for
the account of the Lenders, at the office of the Agent at First Union
National Bank, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇, or by wire to ABA #▇▇▇▇▇▇▇▇▇, Account
No.465906 ▇▇▇▇▇▇▇, Reference "Arvida," Attention: ▇▇▇▇ ▇▇▇▇▇▇, or at such
other place as the Agent may instruct. Any payments of principal or
interest made after 11:00 a.m. (Ft. Lauderdale, Florida time) shall be
deemed to be payments made on the next following Business Banking Day, for
all purposes, hereof, including, without limitation, the accrual of
interest. Should any payment under the Term Loan Notes become due and
payable on a day other than a Business Banking Day, the maturity thereof
shall be extended to the next succeeding Business Banking Day, and, in the
case of any payment of principal, interest shall be payable thereon as
calculated pursuant hereto, for each Business Banking Day such principal is
outstanding (provided, however, any payment of principal received on any
Business Banking Day by 11:00 a.m. (Ft. Lauderdale, Florida time) shall not
be deemed to be outstanding on such Business Banking Day).
3.7 Notwithstanding anything to the contrary set forth herein, the
Agent shall provide the Makers with written notice prior to the first
Business Banking Day of each month of the interest installment with respect
to the Term Loan Notes which is payable on such first Business Banking Day
of such month. With respect to each such monthly installment of interest,
the Agent and the Lenders hereby grant to the Makers a grace period for the
payment of same, which shall extend to the later of: (a) the fifteenth
(15th) day of the month or (b) if the Makers shall not have received
written notice of the monthly interest installment from the Agent, prior to
the first Business Banking Day of any month and the Makers shall have
provided written notice to the Agent, no later than such first Business
Banking Day of the month, of such Agent's failure to provide the Makers
with written notice of such interest installment, then, the date fifteen
(15) days from receipt by the Makers of such written notice of the monthly
interest installment. If the Agent shall not receive written notice from
the Makers on or before the first Business Banking Day of a month, of the
Agent's failure to provide written notice of an interest installment, then,
for all purposes of this Note, notwithstanding that the Makers may later
request such written notice of such interest installment, such grace period
shall extend to no later than the fifteenth (15th) day of such month.
3.8 Any payment required to be paid by the Term Loan Notes, the
Loan Documents or the Credit Agreement, with the exception of interest and
principal, shall be due and payable no later than fifteen (15) days from
receipt by the Makers from the Agent of written notice of the required
payment.
3.9 Provided the Agent has not exercised its right to accelerate
the Term Loan Notes as provided in the Term Loan Notes, the Credit
Agreement or the other Loan Documents: (a) in the event any payment of
principal required under the Term Loan Notes, either pursuant to the terms
hereof or the terms of the Credit Agreement, is not received by the Agent,
for the account of the Lender and Other Lender, by the fifteenth (15th) day
following the day on which such payment is due, the Makers shall pay to the
Agent, for the account of the Lender and Other Lender, a late charge of
five percent (5%) of the payment not so received, the parties agreeing that
said charge is a fair and reasonable charge for the late payment and shall
not be deemed a penalty or as compounding interest, and (b) in the event
any scheduled payment of interest required under the Term Loan Notes is not
received by the Agent, for the account of the Lender and Other Lenders, by
the later of (i) fifteen (15) days from receipt by the Makers of written
notice of the monthly interest installment and (ii) the fifteenth (15th)
day of such month, the Makers shall pay to the Agent, for the account of
the Lender and Other Lenders, a late charge of five percent (5%) of the
payment not so received, the parties agreeing that said charge is a fair
and reasonable charge for the late payment and shall not be deemed a
penalty or as compounding interest. Further, if any payment required to be
paid by the Term Loan Notes, the Credit Agreement or the other Loan
Documents, with the exception of interest and principal, is not paid within
fifteen (15) days from receipt by the Makers from the Agent of written
notice of the required payment, the Makers shall pay to the Agent, for the
account of the Lender and Other Lenders, a late charge of five percent (5%)
of the payment not so received, the parties agreeing that said charge is a
fair and reasonable charge for the late payment and shall not be deemed a
penalty or as compounding interest.
40 Collateral Security. This Note and the other Term Loan Note are
issued pursuant to the Credit Agreement. This Note and the other Term Loan
Note are secured by the Credit Agreement, the Security Documents and the
other Loan Documents. Reference is hereby made to the Credit Agreement,
the Security Documents and the other Loan Documents for a description of
Events of Default and rights of acceleration of the Maturity Date upon the
occurrence of an Event of Default. It is expressly agreed that all of the
covenants, conditions and agreements contained in the Credit Agreement, the
Security Documents and the other Loan Documents are made a part of this
Note and the other Term Loan Note.
50 Events of Default.
5.1 Upon the occurrence of an Event of Default, the Agent may, and
upon the direction of the Required Lenders, shall declare the entire amount
of this Note and the other Term Loan Note, including the principal balance
then outstanding thereunder, together with all interest accrued thereon, to
be immediately due and payable, without notice, (the Makers hereby
expressly waive notice of such Event of Default), time being of the essence
of this Term Loan Note and the other Term Loan Note. Any Event of Default
under this Note shall be an Event of Default under all other Loan Documents
and any Event of Default under any other Loan Document shall be an Event of
Default hereunder.
5.2 In the event the Agent accelerates the Term Loan Notes as
herein provided or the full amount of outstanding principal and interest
under the Term Loan Notes is not fully repaid to the Agent, for the account
of the Lenders on or before the Maturity Date, then the entire unpaid
principal balance under the Term Loan Notes, together with all interest
accrued thereon, shall bear interest from the date of an Event of Default
or from the Maturity Date, respectively, at the Default Rate. Any late
charge paid by the Makers shall be applied to the interest charged at the
Default Rate after acceleration of the Term Loan Notes.
5.3 The remedies of the Agent, the Lender and Other Lender, as
provided herein, or in the Security Documents, the other Loan Documents or
Credit Agreement shall be cumulative and concurrent and may be pursued
singularly, successively or together, by the Agent in accordance with the
terms of the Credit Agreement, and may be exercised as often as the
occasion therefor shall arise. Notwithstanding anything herein seemingly
to the contrary, neither the Agent, the Lender or the Other Lender shall
take any action, including, without limitation, in connection with the
enforcement of any of their rights under the Term Loan Notes, the Credit
Agreement or other Loan Documents, unless such action is consistent with
the action taken by the Agent, or the Other Lender, as the case may be,
with respect to all of the Term Loan Notes and in accordance with the
provisions of the Credit Agreement.
60 Usury. Nothing herein contained, nor in any instrument or
transaction related hereto, shall be construed or so operate as to require
the Makers, or any person liable for the payment of the Loan evidenced by
the Term Loan Notes, to pay interest in an amount or at a rate greater than
the highest non-usurious rate permissible under applicable law as amended
from time to time. Should any interest or other charges paid by the
Makers, or any party liable for the payment of the Loan evidenced by the
Term Loan Notes, result in the computation or earning of interest in excess
of the highest non-usurious rate permissible under applicable law, then any
and all such excess shall be and the same is hereby waived by the Agent,
the Lender and the Other Lender, and all such excess shall be paid by the
Agent, the Lender or the Other Lender, as the case shall be, to the Makers
or to any party liable for the payment of the Loan evidenced by the Term
Loan Notes, it being the intent of the parties hereto that under no
circumstances shall the Makers or any party liable for the payment of the
Loan hereunder, be required to pay interest in excess of the highest non-
usurious rate permissible under applicable law as amended from time to
time. By operation of Section 687.12, Florida Statutes (1996), the
interest rate charged under the Note and the other Term Loan Notes is
authorized by Chapters 658, 665 and 687, Florida Statutes (1996) and
applicable federal law.
70 Waivers/Miscellaneous Matters.
7.1 The Term Loan Notes are to be construed according to the appli-
cable laws of the State of Florida and the United States of America. Any
action brought upon the enforcement of this Note and the other Term Loan
Notes is hereby authorized to be instituted and prosecuted in Broward
County, Florida, or at the United States District Court for the Southern
District of Florida, at the election of the Agent, subject to and in
accordance with the terms of the Credit Agreement.
7.2 The Term Loan Notes may not be changed orally, but only by an
agreement in writing, signed by the party against whom enforcement of any
waiver, change, modification or discharge is sought.
7.3 Each maker, endorser and guarantor or any person, firm or
corporation becoming liable under this Note and the other Term Loan Note
hereby consents to any extension or renewal of this Note and the other Term
Loan Note or any part thereof, without notice, and agrees that it will
remain liable under this Note and the other Term Loan Note during any
extension or renewal thereof, until the indebtedness evidenced hereby and
thereby is paid in full.
7.4 Notwithstanding anything to the contrary herein or in the
Credit Agreement, the Security Documents or other Loan Documents (or any
instruments or certificates executed or delivered in connection therewith
at any time or times), neither any present or future constituent partner
(as hereinafter defined) in, or agent of, any of the Makers, nor any
shareholder, member, officer, manager, director, employee, trustee,
beneficiary or agent of any corporation or other entity that is or becomes
a constituent partner in any of the Makers shall be personally liable,
directly or indirectly (and neither the Agent, the Lender or the Other
Lender shall have any recourse against any property or assets of any such
constituent partner or other person or entity) under or in connection with
the Term Loan Notes, the Credit Agreement, the Security Documents, the
other Loan Documents, the Loans, or any instruments securing or otherwise
executed in connection therewith, or any certificate delivered in
connection therewith, or any amendments or modifications to any of the
foregoing made at any time or times, heretofore or hereafter (such persons
as described in this sentence being herein collectively referred to as
"Non-Recourse Persons"), provided, however, Non-Recourse Persons shall not
include any Maker or any Subsidiary of a Maker that would otherwise be
liable as a general partner in a Maker. The recourse of the Agent, the
Lender, the Other Lender and their successors and assignees under or in
connection with the Term Loan Notes, the Security Documents, the Credit
Agreement, the other Loan Documents, the Loans and such instruments and
certificates, and any such amendments or modifications, shall be limited to
the assets of the Makers, and the Agent, the Lender, the Other Lender and
each of their successors and assignees waive and do hereby waive any such
personal liability against any such Non-Recourse Persons. For the purposes
of the Term Loan Notes, the Security Documents, the Credit Agreement and
each other Loan Document and any such instruments and certificates and any
such amendments or modifications, neither the negative capital account of a
constituent partner in any Maker, nor any obligation of any constituent
partner in any Maker to restore a negative capital account or to advance or
contribute capital to any Maker or any other constituent partner in any
Maker shall be deemed to be the property or the asset of any Maker or any
such other constituent partner (and neither the Agent, the Lender or the
Other Lender nor any of their successors or assignees shall have any right
to collect, enforce or proceed against or with respect to any such negative
capital account or partner's obligation to restore, advance or contribute).
As used in this section, the term "constituent partner" means any direct
partner in any Maker, and any person or entity that is a partner in any
partnership that, directly or indirectly through one or more other
partnerships, is a partner in any Maker.
7.5 Time is of the essence hereof with regard to the performance
and observance of all of the terms, provisions and conditions hereof on the
part of the Makers to be observed and/or performed.
7.6 All sums received by the Agent for application to this Note and
the other Term Loan Note shall be applied by the Agent in the manner set
forth in Section 2.8 of the Credit Agreement.
7.7 The Makers are strictly liable for and hereby agree to pay or
reimburse the Agent (but not the Other Lender) for, and hold it harmless
from and against all of its reasonable third party costs and expenses
incurred in connection with the collection or enforcement of, or the
preservation of any rights under, this Note, the other Term Loan Note, the
Credit Agreement or other Loan Documents, including, without limitation,
the reasonable fees and disbursements of counsel for the Agent, including
attorneys' fees out of court, in trial, on appeal, in bankruptcy
proceedings or otherwise. The Makers shall pay all such amounts in
accordance with the terms of the Credit Agreement, and until repaid, such
sums shall bear interest at the Default Rate.
7.8 All notices and like communications required or permitted to be
given pursuant to the provisions of this Note and the other Term Loan Note
shall be given in accordance with the notice provisions of Section 11.4 of
the Credit Agreement.
7.9 As used herein, the terms "Makers," "Agent," "Lender" and
"Other Lender" shall be deemed to include their respective successors and
assigns.
7.10 In the event any one or more of the provisions of this Note or
the other Term Loan Note shall for any reasons be held to be invalid,
illegal, or unenforceable, in whole or in part or in any respect, or in the
event one or more of the provisions of this Note or the other Term Loan
Note operates or would prospectively operate to invalidate this Note or the
other Term Loan Note, then in any of those events, only such provision or
provisions shall be deemed null and void and shall not effect any other
provision of this Note or the other Term Loan Note. The remaining
provisions of this Note and the other Term Loan Note shall remain operative
and in full force and effect and in shall no way be affected, prejudiced or
disturbed thereby. In the event any provisions of this Note or the other
Term Loan Notes are inconsistent with any provisions of the Credit
Agreement, the Security Documents or other Loan Documents, or any other
agreements or documents executed in connection with the Term Loan Notes,
the Term Loan Note shall control.
7.11 It is expressly understood and agreed that neither the Agent,
the Lender or any Other Lender shall ever be construed for any purposes, to
be the partner, joint venturer, principal or associate of the Makers or any
of them or any person or party claiming by, through or under the Makers or
any of them in the conduct of their respective businesses.
7.12 The undersigned Makers and any endorsers, sureties, guarantors
and all others who are or may become liable for the payment hereof (a)
severally waive presentment for payment, demand, notice of demand, notice
of nonpayment or dishonor, protest and notice of protest of this Note and
the other Term Loan Note, and all other notices in connection with the
delivery, acceptance, performance or enforcement of the payment of this
Note and the other Term Loan Note, (b) expressly consent to all extensions
of time, renewals, postponements of time of payment of this Note and the
other Term Loan Note or other modifications from time to time prior to or
after the Maturity Date, without notice, consent or consideration to any of
the foregoing, (c) expressly agree to any substitution, exchange, addition
or release of any of the other Loan Documents or the addition or release of
any party or person primarily or secondarily liable hereon, (d) expressly
agree that the Agent and/or the Lender or Other Lender shall not be
required first to institute any suit, or to exhaust their remedies against
the Makers or any other person or party to become liable hereunder or
against the other Loan Documents in order to enforce the payment of this
Note and the other Term Loan Note, and (e) expressly agree that,
notwithstanding the occurrence of any of the foregoing, they shall be and
remain, jointly and severally, directly liable for all sums due under this
Note, the other Term Loan Note and the other Loan Documents subject to the
terms and conditions hereof and thereof.
7.13 Neither the Agent or the Lender or Other Lender shall be
deemed, by any act of omission or commission, to have waived any of their
rights or remedies hereunder unless such waiver is in writing given in
accordance with the terms of the Credit Agreement, and then only to the
extent specifically set forth in the writing. A waiver with reference to
one event shall not be construed as continuing or as a bar to or waiver of
any right or remedy as to a subsequent event.
7.14 Neither this Note or the other Term Loan Note nor any provision
hereof or thereof may be changed or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change or termination is sought.
7.15 Failure to accelerate this Note or the other Term Loan Note
after an Event of Default, or the acceptance of a past due installment,
shall not be construed as a novation of the contract or a waiver of the
right of the Agent or the Lender or Other Lender to thereafter insist upon
strict compliance with the terms of this Note and the other Term Loan Note
without previous notice of such intention being given to the Makers.
7.16 Notwithstanding anything to the contrary in this Note, the
other Term Loan Notes, the Credit Agreement, the Security Documents or
other Loan Documents, the maximum liability of any Maker other than
Arvida/JMB Partners, L.P. (herein a "Maker Subsidiary" or "Maker
Affiliate") for the Obligations created, evidenced and secured thereby and
hereby shall not exceed the maximum amount, as such maximum amount shall be
determined by a court of competent jurisdiction of any such Maker
Subsidiary's or Maker Affiliate's liability therefor which may be incurred
without rendering the Obligations, as they relate to such Maker Subsidiary
or Maker Affiliate, voidable as a fraudulent conveyance or fraudulent
transfer under the Bankruptcy Code or under any other present or future
federal or state laws or statutes relating to bankruptcy, insolvency,
assignment for the benefit of creditors or other relief for debtors,
including, without limitation, the Uniform Fraudulent Transfer Act or the
Uniform Fraudulent Conveyance Act, as in effect in any jurisdiction wherein
any such Maker Subsidiary's or Maker Affiliate's Solvency (as defined in
the Credit Agreement) is subject to determination. For purposes of
determining such liability of any Maker Subsidiary or Maker Affiliate, due
consideration shall be given to the benefits received, directly or
indirectly, by such Maker Subsidiary or Maker Affiliate from the Loans (as
defined in the Credit Agreement) made pursuant to the Commitments (as
defined in the Credit Agreement).
7.17 The section headings of this Note and the other Term Loan Note
are for reference purposes only and are to be given no effect in the
construction or interpretation of this Note or the other Term Loan Note.
THE MAKERS AND THE LENDER BY ITS ACCEPTANCE HEREOF HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS NOTE OR ANY OTHER TERM LOAN NOTE OR THE
CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY MAKERS, THE AGENT,
THE LENDER OR ANY OTHER LENDER.
SIGNATURE PAGES FOLLOW
IN WITNESS WHEREOF, the undersigned Makers have executed this Note on
the date set forth above.
MAKERS:
ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
THE AOK GROUP,
a Florida general partnership
By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its
sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS,
a Florida general partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
METRODRAMA JOINT VENTURE,
a Florida general partnership
By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its
sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS, a
Florida general partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
ARVIDA/JMB PARTNERS,
a Florida general partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
ARVIDA GRAND BAY LIMITED PARTNERSHIP-IV,
a Delaware limited partnership
By: ARVIDA GRAND BAY MANAGERS, INC.,
a Delaware corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
GULF AND PACIFIC COMMUNICATIONS
LIMITED PARTNERSHIP,
a Delaware limited partnership
By: PACIFIC PROPERTIES, INC.,
an Illinois corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
WESTON HILLS COUNTRY CLUB LIMITED
PARTNERSHIP,
a Delaware limited partnership
By: WHCC, INC.,
an Illinois corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
SOUTHEAST FLORIDA HOLDINGS, INC.,
an Illinois corporation
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
SCHEDULE 1
NOTE:DOCUMENTARY STAMPS AND INTANGIBLE TAXES WERE PAID IN CONNECTION
WITH THE VARIOUS NOTES PREVIOUSLY CONSOLIDATED AND EVIDENCE OF SAME APPEARS
ON THAT CERTAIN MORTGAGE AND SECURITY AGREEMENT DATED JULY 31, 1997, AND
RECORDED IN OFFICIAL RECORDS BOOK 26802, PAGE 888 OF THE PUBLIC RECORDS OF
BROWARD COUNTY, FLORIDA. THIS BIFURCATION OF NOTE AGREEMENT BIFURCATES
EXISTING INDEBTEDNESS AND/OR UNFUNDED AVAILABILITY WITHOUT ENLARGEMENT. NO
ADDITIONAL INDEBTEDNESS IS BEING INCURRED AND NO ADDITIONAL DOCUMENTARY
STAMPS OR INTANGIBLE TAXES ARE DUE.
BIFURCATION OF NOTE AGREEMENT
THIS BIFURCATION OF NOTE AGREEMENT ("Agreement) executed
effective as of September 1, 1998 by and between ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership, ARVIDA/JMB PARTNERS, a Florida general
partnership, ARVIDA GRAND BAY LIMITED PARTNERSHIP IV, a Delaware limited
partnership, THE AOK GROUP, a Florida general partnership, METRODRAMA JOINT
VENTURE, a Florida general partnership, SOUTHEAST FLORIDA HOLDINGS, INC.,
an Illinois corporation, GULF AND PACIFIC COMMUNICATIONS LIMITED
PARTNERSHIP, a Delaware limited partnership and WESTON HILLS COUNTRY CLUB
LIMITED PARTNERSHIP, a Delaware limited partnership (jointly and severally,
"Borrowers"), having an address of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and FIRST UNION NATIONAL BANK, as Agent, a national banking
association, having an address of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Lender").
W I T N E S S E T H:
WHEREAS, Lender is owner and holder of a certain Consolidated and
Restated Line of Credit Promissory Note executed by Borrowers and dated of
even date herewith in the original principal amount of $20,000,000
("Consolidated Note"), subject to the terms of that certain Credit
Agreement dated July 31, 1997 ("Credit Agreement") and secured by the
"Security Documents" (as defined in the Credit Agreement); and
WHEREAS, Borrowers and Lender wish to bifurcate the Consolidated Note
into two notes to remain subject to the terms of the Credit Agreement, as
modified of even date, and to remain secured by the Security Documents, as
modified of even date.
NOW, THEREFORE, in consideration of the mutual benefit to be
obtained, the parties hereto, intending to be legally bound, do hereby
agree as follows:
1. The above recitals are true and correct and are incorporated
herein by this reference.
2. Borrowers acknowledge that the unpaid principal balance of the
Consolidated Note as of the date hereof is $ -0- and the unfunded
availability thereof is $20,000,000.
3. As of the date hereof, Borrowers have no defenses, rights of
set-off, claims or counterclaims against Lender under the Consolidated
Note, the Credit Agreement or the Security Documents and Borrowers hereby
reaffirm their obligations thereunder as modified hereby.
4. This Agreement is not intended by Borrowers to be a novation,
the existing indebtedness not being forgiven hereby, but merely bifurcated
into two notes.
5. The Consolidated Note is hereby bifurcated to evidence two
debts, represented by: (a) a $12,320,000 Line of Credit Restated Renewal
Promissory Note, attached hereto as Exhibit A, and (b) a $7,680,000 Line of
Credit Restated Renewal Promissory Note, a copy of which is attached hereto
as Exhibit B. Simultaneously herewith, the $7,680,000 Line of Credit
Restated Renewal Promissory Note, a copy of which is attached hereto as
Exhibit B shall be assigned by Lender to Bank United, a federal savings
bank, due to which intended assignment the bifurcated notes attached hereto
as Exhibit A and Exhibit B contain references to multiple lenders so as to
be consistent with the Credit Agreement, as modified of even date.
IN WITNESS WHEREOF, the parties have executed this Bifurcation of
Note Agreement the day and year first above written.
BORROWERS:
ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its sole
general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
ARVIDA /JMB PARTNERS, a Florida general
partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, a general
partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
ARVIDA GRAND BAY LIMITED PARTNERSHIP
IV,
a Delaware limited partnership
By: ARVIDA GRAND BAY MANAGERS, INC.,
a Delaware corporation, its sole
general partner
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
THE AOK GROUP, a Florida general
partnership
By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership, a
general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its
sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS, a Florida
general partnership, a general partner
By: ARVIDA/JMB MANAGERS, INC.,
Delaware corporation, a
general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
METRODRAMA JOINT VENTURE,
a Florida general partnership
By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its
sole
general partner
By:
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS, a Florida
general partnership, a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, a general partner
By:
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Vice President
[CORPORATE SEAL]
SOUTHEAST FLORIDA HOLDINGS, INC.,
an Illinois corporation
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
GULF AND PACIFIC COMMUNICATIONS
LIMITED PARTNERSHIP,
a Delaware limited partnership
By: PACIFIC PROPERTIES, INC., an
Illinois corporation, its sole general partners
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
WESTON HILLS COUNTRY CLUB LIMITED
PARTNERSHIP, a Delaware limited partnership
By: WHCC, INC., an Illinois
corporation,
its sole general partner
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
LENDER:
FIRST UNION NATIONAL BANK,
a national banking association
By:
Print Name:
Title:
[CORPORATE SEAL]
EXHIBIT "A" TO BIFURCATION OF NOTE AGREEMENT
THE TAX HAS BEEN PAID AND THE PROPER DOCUMENTARY STAMPS HAVE BEEN AFFIXED
TO THE MORTGAGE AND SECURITY AGREEMENT SECURING THIS PROMISSORY NOTE. NON-
RECURRING INTANGIBLE TAXES SHALL BE PAID AT THE TIME OF EACH ADVANCE, ON
SUCH ADVANCE.
LINE OF CREDIT
PROMISSORY NOTE
$12,320,000 Effective Date: September 1, 1998
FOR VALUE RECEIVED, the undersigned, Arvida/JMB Partners, L.P., a
Delaware limited partnership, Arvida/JMB Partners, a Florida general
partnership, Arvida Grand Bay Limited Partnership IV, a Delaware limited
partnership, The AOK Group, a Florida general partnership, Metrodrama Joint
Venture, a Florida general partnership, Southeast Florida Holdings, Inc.,
an Illinois corporation, Gulf and Pacific Communications Limited
Partnership, a Delaware limited partnership, and Weston Hills Country Club
Limited Partnership, a Delaware limited partnership, all having an office
at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
collectively referred to as the "Makers"), jointly and severally promise to
pay to the order of First Union National Bank, a national banking
association, its successors or assigns (the "Lender"), the principal sum of
TWELVE MILLION THREE HUNDRED TWENTY THOUSAND DOLLARS ($12,320,000), or the
Lender's Actual Share of all sums as may be advanced under the Line of
Credit Commitment, pursuant to and in accordance with the Credit Agreement,
together with interest on the principal balance of this Note outstanding
from time to time, as same shall accrue thereon in accordance with the
terms hereof, but not to exceed the maximum non-usurious rate permitted by
law.
10 Definitions. Capitalized terms not otherwise defined herein shall
have the meanings ascribed to such terms in the Credit Agreement. In
addition to capitalized terms defined elsewhere herein, the following
capitalized terms shall have the meanings ascribed to them as follows:
1.1 "Actual Share" means the percentage interest of the Lender in
the Advances made pursuant to the Line of Credit Commitment.
1.2 "Adjusted LIBO Rate" means, relative to any LIBO Rate Tranche
to be made, continued or maintained as, or converted into, a LIBO Rate
Tranche for any Interest Period, a rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of one percent) equal to the quotient of
(i) the LIBO Rate applicable to the relevant Interest Period, divided by
(ii) the result of one minus the Reserve Percentage applicable to such
Interest Period.
1.3 "Agent" means First Union National Bank, a national banking
association.
1.4 "Business Banking Day" means a day that is not a Saturday, a
Sunday, or a day on which the Agent is closed pursuant to authorization or
requirement of law.
1.5 "Committed Share" means the percentage interest of the Lender
in the Line of Credit Commitment.
1.6 "Credit Agreement" means the Credit Agreement dated July 31,
1997, between Lender and Borrower (among others), as amended, of even date
herewith, as the same may be amended, supplemented, restated, replaced or
otherwise modified from time to time.
1.7 "Default Rate" means the lesser of: (i) five percent (5%) above
the Note Prime Rate and (ii) the maximum non-usurious rate permitted under
applicable law, provided the maximum interest rate shall never be more then
twenty-four and 99/100 percent (24.99%).
1.8 "Event of Default" has the meaning ascribed to such term in the
Credit Agreement.
1.9 "Interest Period" means, in the case of a LIBO Rate Tranche,
the period commencing on (and including) the Business Banking Day selected
by the Makers as the date on which such LIBO Rate Tranche is made or
continued as, or converted into a LIBO Rate Tranche pursuant to the terms
of this Note, and ending on (but excluding) the day which numerically
corresponds to such date one, two, three or six months thereafter (or if
such month has no numerically corresponding day, on the last Business
Banking Day of such month), in each case as the Makers may select, provided
that (a) if such Interest Period would otherwise end on a day which is not
a Business Banking Day, such Interest Period shall end on the next
following Business Banking Day (unless, in the case of a LIBO Rate Tranche,
such next following Business Banking Day is the first Business Banking Day
of the calendar month, in which case such Interest Period shall end on the
Business Banking Day next preceding such numerically corresponding day);
and (b) no Interest Period may end on a date later than the Maturity Date.
1.10 "LIBO Rate" means, relative to any Interest Period, a rate of
interest per annum (rounded upwards, if necessary, to the nearest 1/100 of
one percent) equal to the rate for US dollar deposits with maturities
comparable to such Interest Period for delivery on the first day of such
Interest Period which appears on the Reuters Screen LIBO Page as of
11:00 a.m. (London time) on the day that is two (2) London Banking Days
preceding the commencement date of the Interest Period. If at least two
(2) such offered rates appear on the Reuters Screen LIBO Page, the rate
will be the arithmetic mean of such offered rates. The Agent may, in its
discretion, use any other publicly available index or reference rate
showing rates offered for United States dollar deposits in the London
Interbank market as of the applicable date. In addition, the Agent may, in
its discretion, use rate quotations for daily or annual periods in lieu of
quotations for substantially equivalent monthly periods, in the absence of
such quotations for substantially equivalent monthly periods. Each
determination of the LIBO Rate applicable to a particular Interest Period
shall be made by the Agent and shall be conclusive and binding upon the
Makers and Lenders absent manifest error.
1.11 "LIBO Rate Tranche" means a Tranche bearing interest at all
times during the Interest Period applicable to such Tranche, at a fixed
rate of interest equal to the Note LIBO Rate applicable to such Interest
Period.
1.12 "Line of Credit Commitment" has the meaning ascribed to such
term in the Credit Agreement.
1.13 "Line of Credit Notes" means this Note and the other Line of
Credit Note executed by the Makers in favor of the Other Lender, each dated
of even date herewith, in the aggregate amount of the Line of Credit
Commitment, as same may be amended, supplemented, renewed, restated,
replaced or otherwise modified from time to time.
1.14 "Loan Documents" has the meaning described to such term in the
Credit Agreement.
1.15 "Loan Year" means each of the twelve (12) month periods
commencing on July 31, 1997 and on the first, second and third
anniversaries hereof.
1.16 "London Banking Day" means each day other than a Saturday, a
Sunday or any holiday on which commercial banks in London, England are
closed for business.
1.17 "Maturity Date" means the earlier of: (i) July 31, 2001 and
(ii) any earlier date upon which the principal balance outstanding
hereunder, together with all interest accrued thereon, shall become
immediately due and payable following an Event of Default, in accordance
with provisions of the Credit Agreement.
1.18 "Note" means this Line of Credit Promissory Note, in the amount
of the Lender's Committed Share of the Line of Credit Commitment, as same
maybe amended, supplemented, restated, replaced or otherwise modified from
time to time.
1.19 "Note LIBO Rate" means the Adjusted LIBO Rate applicable to a
specific LIBO Rate Tranche selected by the Makers for a relevant Interest
Period, plus 175 basis points.
1.20 "Note Prime Rate" means the Prime Rate applicable to the Prime
Rate Tranche. The Note Prime Rate shall be increased or decreased
effective on any date on which the Prime Rate shall be increased or
decreased.
1.21 "Other Lender" means, Bank United, a federal savings bank, also
being a "Lender".
1.22 "Prime Rate" means the annual rate of interest announced from
time to time by First Union National Bank, as its Prime Rate. The Prime
Rate is a reference rate for the information and use of the Agent in
establishing the actual rates to be charged to borrowers and is not
necessarily the lowest rate charged by the Agent. Should First Union
National Bank not publish a Prime Rate at any time during the term of this
Note, the Agent, in its reasonable discretion, may choose a substitute
Prime Rate. The rate of interest shall change automatically and
immediately as of the date of any change in the Prime Rate without notice
to Borrower or any endorser, surety or guarantor, if any.
1.23 "Prime Rate Tranche" means a Tranche bearing interest at the
Note Prime Rate.
1.24 "Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor
thereto or other rule, regulation or official interpretation of said Board
of Governors relating to reserve requirements applicable to member banks of
the Federal Reserve System.
1.25 "Required Lenders" has the meaning ascribed to such term in the
Credit Agreement.
1.26 "Reserve Percentage" means the stated maximum rate (expressed
as a decimal) at which reserves are required to be maintained by the Agent
during an Interest Period, including, without limitation (i) any basis,
supplemental, marginal, or emergency reserve under any regulations of any
governmental authority to which the Agent is subject, (ii) any reserve
prescribed by the Board of Governors of the Federal Reserve System (or any
successor), including, without limitation, Regulation D, for determining
the maximum reserve requirement in respect of "Eurocurrency liabilities"
(or in respect of any other category of liabilities which includes deposits
by reference to which the LIBO Rate is determined). Without limiting the
effect of the foregoing, the Reserve Percentage shall reflect any other
reserves required to be maintained by the Agent under any regulation of any
governmental authority to which the Agent is subject against (a) any
category of liabilities that include deposits with reference to which the
LIBO Rate is to be determined or (b) any category of extension of credit or
other assets that includes loans bearing interest at a rate based on the
LIBO Rate. Each determination of the Reserve Percentage shall be made by
the Agent and shall be conclusive and binding upon the Makers and Lenders
absent manifest error.
1.27 "Security Documents" has the meaning ascribed to such terms in
the Credit Agreement.
1.28 "Tranche" means any portion of the outstanding principal
balance under the Line of Credit Notes bearing interest at the applicable
Note LIBO Rate for a specific Interest Period, as selected by the Makers in
accordance with Section 2.1, below, and any portion of the outstanding
principal balance under the Line of Credit Notes which may from time to
time bear interest at the Note Prime Rate.
20 Selection and Calculation of Interest Rate.
2.1 Provided that no Event of Default or circumstance which with
the passage of time or giving of notice would become an Event of Default
then exists under the Loan Documents, and provided there shall at no time
be permitted to exist more than four LIBO Rate Tranches with respect to the
total principal balance outstanding under the Line of Credit Notes, the
Makers shall have the right to elect to have the Note LIBO Rate then in
effect for an Interest Period apply to a LIBO Rate Tranche, in accordance
with, and subject to the provisions of this Section 2.1. To make an
election to have such Note LIBO Rate apply to any LIBO Rate Tranche, from
time to time, the Makers shall give to the Agent irrevocable notice (a
"Rate Election Notice") not later than 11:00 a.m. (Ft. Lauderdale, Florida
time) at least three (3) Business Banking Days prior to the commencement
date of each such Interest Period, which Rate Election Notice shall be
addressed as follows, and shall be given in writing (by telecopy, hand
delivery, or overnight delivery service), in accordance with the provisions
of Section 11.4 of the Credit Agreement:
▇▇▇▇ ▇▇▇▇▇▇, Vice President
First Union National Bank
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Each such Rate Election Notice shall be in the form attached hereto as
Schedule 1 and shall specify: (i) the commencement day of the Interest
Period which shall be a Business Banking Day (and, with respect to any then
existing LIBO Rate Tranche, shall not be a date prior to the termination
date of such then existing LIBO Rate Tranche), (ii) the principal amount of
the LIBO Rate Tranche which shall be subject to the application of the Note
LIBO Rate, which shall be in a minimum amount of $2,000,000.00, and in
multiples of $100,000.00 and (iii) the applicable Interest Period which
shall apply to such LIBO Rate Tranche, provided, however, that no Interest
Period may extend beyond the Maturity Date.
2.2 If the Agent determines, absent manifest error, that the
maintenance of any Note LIBO Rate would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, of if the
Agent determines that the interest rate applicable to the Note LIBO Rate
does not accurately reflect the cost of maintaining any LIBO Rate Tranche
subject to such rate, then, at the election of the Agent, the Makers shall
not be entitled thereafter to select a Note LIBO Rate to be applicable to
any portions of the total outstanding principal balance under the Line of
Credit Notes, and the interest rate applicable to all of the outstanding
principal balance under the Line of Credit Notes then subject to the Note
LIBO Rate for any applicable Interest Period, shall, upon the expiration of
all such applicable Interest Periods, be converted to the Prime Rate.
2.3 In the event that the Makers shall fail to provide a timely
Rate Election Notice for the election of the Note LIBO Rate to apply to any
Advance or to any LIBO Rate Tranche, as of the termination date of the
applicable Interest Period for such Tranche, then as the date of such
Advance, or as of such termination date of such LIBO Rate Tranche, as the
case may be, the Prime Rate shall apply to such Advance or LIBO Rate
Tranche until the next eligible effective date for which the Maker shall
have provided a timely Rate Election Notice, and such Advance or such
principal amount previously comprising a LIBO Rate Tranche, shall
thereafter be deemed to be included in the Prime Rate Tranche.
2.4 Interest shall be calculated on the daily total outstanding
balance of all Advances of Loan Proceeds under the Line of Credit
Commitment, as such Advances are evidenced by the Line of Credit Notes, as
follows: (i) interest shall accrue on each LIBO Rate Tranche, commencing
with the effective date for each such LIBO Rate Tranche, at the applicable
Note LIBO Rate for the applicable Interest Period and (ii) interest shall
accrue on the Prime Rate Tranche, which shall comprise all of the
outstanding principal balance under the Line of Credit Notes not otherwise
subject to a LIBO Rate Tranche, at the Note Prime Rate, changing when and
as the Prime Rate changes. Interest shall be computed through and
including the date of any payment and shall be calculated for actual days
elapsed on the basis of a 360 day year (i.e. interest for each day on which
any principal is outstanding shall be calculated at the applicable interest
rate described above, divided by 360).
30 Payment of Interest and Principal.
3.1 Interest, calculated as above provided, shall be due and
payable by the Makers to the Agent, for the account of the Lender and Other
Lender, in accordance with their Actual Shares of the total outstanding
principal balance of the Line of Credit Notes, subject to the provisions of
Section 3.7 hereof, on the first Business Banking Day of the first calendar
month immediately following the Advance of Loan Proceeds under the Line of
Credit Commitment and continuing on the first day of each month thereafter
until the Maturity Date.
3.2 The total outstanding principal balance under the Line of
Credit Notes and all accrued but unpaid interest shall be fully due and
payable on the Maturity Date.
3.3 All payments of principal and interest under the Line of Credit
Notes shall be made in lawful money of the United States which shall be
legal tender in payment of all debts, public and private, at the time of
payment.
3.4 The Line of Credit Notes may be prepaid in whole or in part at
any time and from time to time, without penalty or premium, provided:
(i) any such prepayment shall be preceded by at least three (3) Business
Banking Days' prior written notice to the Agent and (ii) any such
prepayment shall be accompanied by accrued interest to the date of
prepayment and any other obligations and payments then due under the terms
of the Line of Credit Notes. If the Makers shall make a payment or
prepayment of all or any portion of the principal amount outstanding then
subject to a LIBO Rate Tranche, prior to the applicable termination date
thereof (including, without limitation, upon the acceleration of the
Maturity Date following an Event of Default), or the Makers shall attempt
to rescind a Rate Election Notice for a specified LIBO Rate Tranche, after
the Makers have submitted such Rate Election Notice to the Agent, then,
within three (3) Business Banking Days following written notice from the
Agent, the Makers shall pay to the Agent the amount of any loss or cost
incurred by the Agent, the Lender or the Other Lender resulting therefrom,
including, without limitation, any loss or cost resulting from the
liquidation or re-employment of deposits required to fund or maintain the
subject LIBO Rate Tranche, not to exceed the amount of interest which would
have been earned on the amount prepaid for the balance of the subject
Interest Period, at a rate equal to the difference, not less than zero, of
the LIBO Rate as of the first day of the Interest Period less the LIBO Rate
as of the date of such prepayment, for a corresponding Interest Period
commencing on the date of such prepayment. The obligations of the Makers
under this section shall survive payment of the Line of Credit Notes.
3.5 Prior to the Maturity Date, the Makers may borrow, repay and
reborrow hereunder, in accordance with the terms of the Credit Agreement.
The Makers shall repay the outstanding balances under the Line of Credit
Notes at least once each Loan Year, provided, however, that the Makers
shall, at no point, repay the outstanding balances under this Note or under
any of the other Line of Credit Notes to the extent that there shall be
less than One Thousand Dollars and no/100 ($1,000.00) outstanding
thereunder at any time, and shall not reborrow under the Line of Credit
Commitment for a period of at least thirty (30) days after such repayment
(a "Cleanup Repayment"). Notwithstanding the foregoing, however, the Maker
shall be entitled to forego such Cleanup Repayment for one Loan Year,
provided, however, that the Maker shall not be entitled to make any
Distributions (as defined in the Credit Agreement) during the Loan Year
following the Loan Year as to which the Makers shall have failed to make a
Cleanup Repayment, until the Makers shall make a Cleanup Repayment.
3.6 All payments of principal and interest under the Line of Credit
Notes shall be made in immediately available funds by 11:00 a.m. (Ft.
Lauderdale, Florida time) on a Business Banking Day, to the Agent for the
account of the Lenders, at the office of the Agent at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇,
or by wire to ABA #▇▇▇▇▇▇▇▇▇, Account No.465906 ▇▇▇▇▇▇▇, Reference
"Arvida," Attention: ▇▇▇▇ ▇▇▇▇▇▇, or at such other place as the Agent may
instruct. Any payments of principal or interest made after 11:00 a.m. (Ft.
Lauderdale, Florida time) shall be deemed to be payments made on the next
following Business Banking Day, for all purposes, hereof, including,
without limitation, the accrual of interest. Should any payment under the
Line of Credit Notes become due and payable on a day other than a Business
Banking Day, the maturity thereof shall be extended to the next succeeding
Business Banking Day, and, in the case of any payment of principal,
interest shall be payable thereon as calculated pursuant hereto, for each
Business Banking Day such principal is outstanding (provided, however, any
payment of principal received on any Business Banking Day by 11:00 a.m.
(Ft. Lauderdale, Florida time) shall not be deemed to be outstanding on
such Business Banking Day).
3.7 Notwithstanding anything to the contrary set forth herein, the
Agent shall provide the Makers with written notice prior to the first
Business Banking Day of each month of the interest installment with respect
to the Line of Credit Notes which is due and payable on such first Business
Banking Day of such month. With respect to each such monthly installment
of interest, the Agent and the Lenders hereby grant to the Makers a grace
period for the payment of same, which shall extend to the later of: (a) the
fifteenth (15th) day of the month or (b) if the Makers shall not have
received written notice of the monthly interest installment from the Agent,
prior to the first Business Banking Day of any month and the Makers shall
have provided written notice to the Agent, no later than such first
Business Banking Day of the month, of such Agent's failure to provide the
Makers with written notice of such interest installment, then, the date
fifteen (15) days from receipt by the Makers of such written notice of the
monthly interest installment. If the Agent shall not receive written
notice from the Makers on or before the first Business Banking Day of a
month, of the Agent's failure to provide written notice of an interest
installment, then, for all purposes of this Note, notwithstanding that the
Makers may later request such written notice of such interest installment,
such grace period shall extend to no later than the fifteenth (15th) day of
such month.
3.8 Any payment required to be paid by the Line of Credit Notes,
the Loan Documents or the Credit Agreement, with the exception of interest
and principal, shall be due and payable no later than fifteen (15) days
from receipt by the Makers from the Agent of written notice of the required
payment.
3.9 Provided the Agent has not exercised its right to accelerate
the Line of Credit Notes as provided in the Line of Credit Notes, the
Credit Agreement or the other Loan Documents: (a) in the event any payment
of principal required under the Line of Credit Notes, either pursuant to
the terms hereof or the terms of the Credit Agreement, is not received by
the Agent, for the account of the Lender and Other Lender, by the fifteenth
(15th) day following the day on which such payment is due, the Makers shall
pay to the Agent, for the account of the Lender and Other Lender, a late
charge of five percent (5%) of the payment not so received, the parties
agreeing that said charge is a fair and reasonable charge for the late
payment and shall not be deemed a penalty or as compounding interest, and
(b) in the event any scheduled payment of interest required under the Line
of Credit Notes is not received by the Agent, for the account of the Lender
and Other Lender, by the later of (i) fifteen (15) days from receipt by the
Makers of written notice of the monthly interest installment and (ii) the
fifteenth (15th) day of such month, the Makers shall pay to the Agent, for
the account of the Lender and Other Lender, a late charge of five percent
(5%) of the payment not so received, the parties agreeing that said charge
is a fair and reasonable charge for the late payment and shall not be
deemed a penalty or as compounding interest. Further, if any payment
required to be paid by the Line of Credit Notes, the Credit Agreement or
the other Loan Documents, with the exception of interest and principal, is
not paid within fifteen (15) days from receipt by the Makers from the Agent
of written notice of the required payment, the Makers shall pay to the
Agent, for the account of the Lender and Other Lender, a late charge of
five percent (5%) of the payment not so received, the parties agreeing that
said charge is a fair and reasonable charge for the late payment and shall
not be deemed a penalty or as compounding interest.
40 Collateral Security. This Note and the other Line of Credit Note are
issued pursuant to the Credit Agreement. This Note and the other Line of
Credit Note are secured by the Credit Agreement, the Security Documents and
the other Loan Documents. Reference is hereby made to the Credit
Agreement, the Security Documents and the other Loan Documents for a
description of Events of Default and rights of acceleration of the Maturity
Date upon the occurrence of an Event of Default. It is expressly agreed
that all of the covenants, conditions and agreements contained in the
Credit Agreement, the Security Documents and the other Loan Documents are
made a part of this Note and the other Line of Credit Note.
50 Events of Default.
5.1 Upon the occurrence of an Event of Default, the Agent may, and
upon the direction of the Required Lenders, shall declare the entire amount
of this Note and the other Line of Credit Note, including the principal
balance then outstanding thereunder, together with all interest accrued
thereon, to be immediately due and payable, without notice, (the Makers
hereby expressly waive notice of such Event of Default), time being of the
essence of this Line of Credit Note and the other Line of Credit Note. Any
Event of Default under this Note shall be an Event of Default under all
other Loan Documents and an Event of Default under any other Loan Document
shall be an Event of Default under this Note.
5.2 In the event the Agent accelerates the Line of Credit Notes as
herein provided or the full amount of outstanding principal and interest
under the Line of Credit Notes is not fully repaid to the Agent for the
account of the Lenders on or before the Maturity Date, then the entire
unpaid principal balance under the Line of Credit Notes, together with all
interest accrued thereon, shall bear interest from the date of an Event of
Default or from the Maturity Date, respectively, at the Default Rate. Any
late charge paid by the Makers shall be applied to the interest charged at
the Default Rate after acceleration of the Line of Credit Notes.
5.3 The remedies of the Agent, the Lender and Other Lender, as
provided herein, or in the Security Documents, the other Loan Documents or
Credit Agreement shall be cumulative and concurrent and may be pursued
singularly, successively or together, by the Agent in accordance with the
terms of the Credit Agreement, and may be exercised as often as the
occasion therefor shall arise. Notwithstanding anything herein seemingly
to the contrary, neither the Agent, the Lender or the Other Lender shall
take any action, including, without limitation, in connection with the
enforcement of any of their rights under the Line of Credit Notes, the
Credit Agreement or other Loan Documents, unless such action is consistent
with the action taken by the Agent, the Lender or the Other Lender, as the
case may be, with respect to all of the Line of Credit Notes and in
accordance with the provisions of the Credit Agreement.
60 Usury. Nothing herein contained, nor in any instrument or
transaction related hereto, shall be construed or so operate as to require
the Makers, or any person liable for the payment of the Loan evidenced by
the Line of Credit Notes, to pay interest in an amount or at a rate greater
than the highest non-usurious rate permissible under applicable law as
amended from time to time. Should any interest or other charges paid by
the Makers, or any party liable for the payment of the Loan evidenced by
the Line of Credit Notes, result in the computation or earning of interest
in excess of the highest non-usurious rate permissible under applicable
law, then any and all such excess shall be and the same is hereby waived by
the Agent, the Lender and the Other Lender, and all such excess shall be
paid by the Agent, the Lender or the Other Lender, as the case shall be, to
the Makers or to any party liable for the payment of the Loan evidenced by
the Line of Credit Notes, it being the intent of the parties hereto that
under no circumstances shall the Makers or any party liable for the payment
of the Loan hereunder, be required to pay interest in excess of the highest
non-usurious rate permissible under applicable law as amended from time to
time. By operation of Section 687.12, Florida Statutes (1996), the
interest rate charged under the Note and the other Line of Credit Notes is
authorized by Chapters 658, 665 and 687, Florida Statutes (1996) and
applicable federal law.
70 Waivers/Miscellaneous Matters.
7.1 The Line of Credit Notes are to be construed according to the
applicable laws of the State of Florida and the United States of America.
Any action brought upon the enforcement of this Note and the other Line of
Credit Note is hereby authorized to be instituted and prosecuted in Broward
County, Florida, or at the United States District Court for the Southern
District of Florida, at the election of the Agent, subject to and in
accordance with the terms of the Credit Agreement.
7.2 The Line of Credit Notes may not be changed orally, but only by
an agreement in writing, signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
7.3 Each maker, endorser and guarantor or any person, firm or
corporation becoming liable under this Note and the other Line of Credit
Note hereby consents to any extension or renewal of this Note and the other
Line of Credit Note or any part thereof, without notice, and agrees that it
will remain liable under this Note and the other Line of Credit Note during
any extension or renewal thereof, until the indebtedness evidenced hereby
and thereby is paid in full.
7.4 Notwithstanding anything to the contrary herein or in the
Credit Agreement, the Security Documents or other Loan Documents (or any
instruments or certificates executed or delivered in connection therewith
at any time or times), neither any present or future constituent partner
(as hereinafter defined) in, or agent of, any of the Makers, nor any
shareholder, member, officer, manager, director, employee, trustee,
beneficiary or agent of any corporation or other entity that is or becomes
a constituent partner in any of the Makers shall be personally liable,
directly or indirectly (and neither the Agent, the Lender or the Other
Lender shall have any recourse against any property or assets of any such
constituent partner or other person or entity) under or in connection with
the Line of Credit Notes, the Credit Agreement, the Security Documents, the
other Loan Documents, the Loans, or any instruments securing or otherwise
executed in connection therewith, or any certificate delivered in
connection therewith, or any amendments or modifications to any of the
foregoing made at any time or times, heretofore or hereafter (such persons
as described in this sentence being herein collectively referred to as
"Non-Recourse Persons"), provided, however, Non-Recourse Persons shall not
include any Maker or any Subsidiary of a Maker that would otherwise be
liable as a general partner in a Maker. The recourse of the Agent, the
Lender, the Other Lender and their successors and assignees under or in
connection with the Line of Credit Notes, the Security Documents, the
Credit Agreement, the other Loan Documents, the Loans and such instruments
and certificates, and any such amendments or modifications, shall be
limited to the assets of the Makers, and the Agent, the Lender, the Other
Lender and each of their successors and assignees waive and do hereby waive
any such personal liability against any such Non-Recourse Persons. For the
purposes of the Line of Credit Notes, the Security Documents, the Credit
Agreement and each other Loan Document and any such instruments and
certificates and any such amendments or modifications, neither the negative
capital account of a constituent partner in any Maker, nor any obligation
of any constituent partner in any Maker to restore a negative capital
account or to advance or contribute capital to any Maker or any other
constituent partner in any Maker shall be deemed to be the property or the
asset of any Maker or any such other constituent partner (and neither the
Agent, the Lender or the Other Lender nor any of their successors or
assignees shall have any right to collect, enforce or proceed against or
with respect to any such negative capital account or partner's obligation
to restore, advance or contribute). As used in this section, the term
"constituent partner" means any direct partner in any Maker, and any person
or entity that is a partner in any partnership that, directly or indirectly
through one or more other partnerships, is a partner in any Maker.
7.5 Time is of the essence hereof with regard to the performance
and observance of all of the terms, provisions and conditions hereof on the
part of the Makers to be observed and/or performed.
7.6 All sums received by the Agent for application to this Note and
the other Line of Credit Note shall be applied by the Agent in the manner
set forth in Section 2.8 of the Credit Agreement.
7.7 The Makers are strictly liable for and hereby agree to pay or
reimburse the Agent (but not the Other Lender) for, and hold it harmless
from and against all of its reasonable third party costs and expenses
incurred in connection with the collection or enforcement of, or the
preservation of any rights under, this Note, the other Line of Credit Note,
the Credit Agreement or other Loan Documents, including, without
limitation, the reasonable fees and disbursements of counsel for the Agent,
including attorneys' fees out of court, in trial, on appeal, in bankruptcy
proceedings or otherwise. The Makers shall pay all such amounts in
accordance with the terms of the Credit Agreement, and until repaid, such
sums shall bear interest at the Default Rate.
7.8 All notices and like communications required or permitted to be
given pursuant to the provisions of this Note and the other Line of Credit
Note shall be given in accordance with the notice provisions of
Section 11.4 of the Credit Agreement.
7.9 As used herein, the terms "Makers," "Agent," "Lender" and
"Other Lender" shall be deemed to include their respective successors and
assigns.
7.10 In the event any one or more of the provisions of this Note or
the other Line of Credit Note shall for any reasons be held to be invalid,
illegal, or unenforceable, in whole or in part or in any respect, or in the
event one or more of the provisions of this Note or the other Line of
Credit Note operates or would prospectively operate to invalidate this Note
or the other Line of Credit Note, then in any of those events, only such
provision or provisions shall be deemed null and void and shall not effect
any other provision of this Note or the other Line of Credit Note. The
remaining provisions of this Note and the other Line of Credit Note shall
remain operative and in full force and effect and in shall no way be
affected, prejudiced or disturbed thereby. In the event any provisions of
this Note or the other Line of Credit Note are inconsistent with any
provisions of the Credit Agreement, the Security Documents or other Loan
Documents, or any other agreements or documents executed in connection with
the Line of Credit Note, the Line of Credit Note shall control.
7.11 It is expressly understood and agreed that neither the Agent,
the Lender or the Other Lender shall ever be construed for any purposes, to
be the partner, joint venturer, principal or associate of the Makers or any
of them or any person or party claiming by, through or under the Makers or
any of them in the conduct of their respective businesses.
7.12 The undersigned Makers and any endorsers, sureties, guarantors
and all others who are or may become liable for the payment hereof (a)
severally waive presentment for payment, demand, notice of demand, notice
of nonpayment or dishonor, protest and notice of protest of this Note and
the other Line of Credit Note, and all other notices in connection with the
delivery, acceptance, performance or enforcement of the payment of this
Note and the other Line of Credit Note, (b) expressly consent to all
extensions of time, renewals, postponements of time of payment of this Note
and the other Line of Credit Note or other modifications from time to time
prior to or after the Maturity Date, without notice, consent or
consideration to any of the foregoing, (c) expressly agree to any
substitution, exchange, addition or release of any of the other Loan
Documents or the addition or release of any party or person primarily or
secondarily liable hereon, (d) expressly agree that the Agent and/or the
Lender or Other Lender shall not be required first to institute any suit,
or to exhaust their remedies against the Makers or any other person or
party to become liable hereunder or against the other Loan Documents in
order to enforce the payment of this Note and the other Line of Credit
Note, and (e) expressly agree that, notwithstanding the occurrence of any
of the foregoing, they shall be and remain, jointly and severally, directly
liable for all sums due under this Note, the other Line of Credit Note and
the other Loan Documents subject to the terms and conditions hereof and
thereof.
7.13 Neither the Agent or the Lender or Other Lender shall be
deemed, by any act of omission or commission, to have waived any of their
rights or remedies hereunder unless such waiver is in writing given in
accordance with the terms of the Credit Agreement, and then only to the
extent specifically set forth in the writing. A waiver with reference to
one event shall not be construed as continuing or as a bar to or waiver of
any right or remedy as to a subsequent event.
7.14 Neither this Note or the other Line of Credit Note nor any
provision hereof or thereof may be changed or terminated orally, but only
by an instrument in writing signed by the party against whom enforcement of
the change or termination is sought.
7.15 Failure to accelerate this Note or the other Line of Credit
Note after an Event of Default, or the acceptance of a past due
installment, shall not be construed as a novation of the contract or a
waiver of the right of the Agent or the Lender or Other Lender to
thereafter insist upon strict compliance with the terms of this Note and
the other Line of Credit Note without previous notice of such intention
being given to the Makers.
7.16 Notwithstanding anything to the contrary in this Note, the
other Line of Credit Notes, the Credit Agreement, the Security Documents or
other Loan Documents, the maximum liability of any Maker other than
Arvida/JMB Partners, L.P. (herein a "Maker Subsidiary" or "Maker
Affiliate") for the Obligations created, evidenced and secured thereby and
hereby shall not exceed the maximum amount, as such maximum amount shall be
determined by a court of competent jurisdiction of any such Maker
Subsidiary's or Maker Affiliate's liability therefor which may be incurred
without rendering the Obligations, as they relate to such Maker Subsidiary
or Maker Affiliate, voidable as a fraudulent conveyance or fraudulent
transfer under the Bankruptcy Code or under any other present or future
federal or state laws or statutes relating to bankruptcy, insolvency,
assignment for the benefit of creditors or other relief for debtors,
including, without limitation, the Uniform Fraudulent Transfer Act or the
Uniform Fraudulent Conveyance Act, as in effect in any jurisdiction wherein
any such Maker Subsidiary's or Maker Affiliate's Solvency (as defined in
the Credit Agreement) is subject to determination. For purposes of
determining such liability of any Maker Subsidiary or Maker Affiliate, due
consideration shall be given to the benefits received, directly or
indirectly, by such Maker Subsidiary or Maker Affiliate from the Loans (as
defined in the Credit Agreement) made pursuant to the Commitments (as
defined in the Credit Agreement).
7.17 The section headings of this Note and the other Line of Credit
Note are for reference purposes only and are to be given no effect in the
construction or interpretation of this Note or the other Line of Credit
Note.
THE MAKERS AND THE LENDER BY ITS ACCEPTANCE HEREOF HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS NOTE OR ANY OTHER LINE OF CREDIT NOTE OR
THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT CONTEMPLATED TO BE EXECUTED
IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY MAKERS, THE AGENT,
THE LENDER OR ANY OTHER LENDER.
SIGNATURE PAGES FOLLOW
IN WITNESS WHEREOF, the undersigned Makers have executed this Note on
the date set forth above.
MAKERS:
ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
its sole general partner
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
THE AOK GROUP,
a Florida general partnership
By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its
sole general partner
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS,
a Florida general partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
METRODRAMA JOINT VENTURE,
a Florida general partnership
By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its
sole general partner
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS, a
Florida general partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
ARVIDA/JMB PARTNERS,
a Florida general partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
ARVIDA GRAND BAY LIMITED PARTNERSHIP-IV,
a Delaware limited partnership
By: ARVIDA GRAND BAY MANAGERS, INC.,
a Delaware corporation,
its sole general partner
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
GULF AND PACIFIC COMMUNICATIONS
LIMITED PARTNERSHIP,
a Delaware limited partnership
By: PACIFIC PROPERTIES, INC.,
an Illinois corporation,
its sole general partner
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
WESTON HILLS COUNTRY CLUB LIMITED
PARTNERSHIP,
a Delaware limited partnership
By: WHCC, INC.,
an Illinois corporation,
its sole general partner
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
SOUTHEAST FLORIDA HOLDINGS, INC.,
an Illinois corporation
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
EXHIBIT "B" TO BIFURCATION OF NOTE AGREEMENT
THE TAX HAS BEEN PAID AND THE PROPER DOCUMENTARY STAMPS HAVE BEEN AFFIXED
TO THE MORTGAGE AND SECURITY AGREEMENT SECURING THIS PROMISSORY NOTE. NON-
RECURRING INTANGIBLE TAXES SHALL BE PAID AT THE TIME OF EACH ADVANCE, ON
SUCH ADVANCE.
LINE OF CREDIT
PROMISSORY NOTE
$7,680,000 Effective Date: September 1, 1998
FOR VALUE RECEIVED, the undersigned, Arvida/JMB Partners, L.P., a
Delaware limited partnership, Arvida/JMB Partners, a Florida general
partnership, Arvida Grand Bay Limited Partnership IV, a Delaware limited
partnership, The AOK Group, a Florida general partnership, Metrodrama Joint
Venture, a Florida general partnership, Southeast Florida Holdings, Inc.,
an Illinois corporation, Gulf and Pacific Communications Limited
Partnership, a Delaware limited partnership, and Weston Hills Country Club
Limited Partnership, a Delaware limited partnership, all having an office
at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
collectively referred to as the "Makers"), jointly and severally promise to
pay to the order of First Union National Bank, a national banking
association, its successors or assigns (the "Lender"), the principal sum of
SEVEN MILLION SIX HUNDRED EIGHTY THOUSAND DOLLARS ($7,680,000), or the
Lender's Actual Share of all sums as may be advanced under the Line of
Credit Commitment, pursuant to and in accordance with the Credit Agreement,
together with interest on the principal balance of this Note outstanding
from time to time, as same shall accrue thereon in accordance with the
terms hereof, but not to exceed the maximum non-usurious rate permitted by
law.
10 Definitions. Capitalized terms not otherwise defined herein shall
have the meanings ascribed to such terms in the Credit Agreement. In
addition to capitalized terms defined elsewhere herein, the following
capitalized terms shall have the meanings ascribed to them as follows:
1.1 "Actual Share" means the percentage interest of the Lender in
the Advances made pursuant to the Line of Credit Commitment.
1.2 "Adjusted LIBO Rate" means, relative to any LIBO Rate Tranche
to be made, continued or maintained as, or converted into, a LIBO Rate
Tranche for any Interest Period, a rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of one percent) equal to the quotient of
(i) the LIBO Rate applicable to the relevant Interest Period, divided by
(ii) the result of one minus the Reserve Percentage applicable to such
Interest Period.
1.3 "Agent" means First Union National Bank, a national banking
association.
1.4 "Business Banking Day" means a day that is not a Saturday, a
Sunday, or a day on which the Agent is closed pursuant to authorization or
requirement of law.
1.5 "Committed Share" means the percentage interest of the Lender
in the Line of Credit Commitment.
1.6 "Credit Agreement" means the Credit Agreement dated July 31,
1997, between Lender and Borrower (among others), as amended, of even date
herewith, as the same may be amended, supplemented, restated, replaced or
otherwise modified from time to time.
1.7 "Default Rate" means the lesser of: (i) five percent (5%) above
the Note Prime Rate and (ii) the maximum non-usurious rate permitted under
applicable law, provided the maximum interest rate shall never be more then
twenty-four and 99/100 percent (24.99%).
1.8 "Event of Default" has the meaning ascribed to such term in the
Credit Agreement.
1.9 "Interest Period" means, in the case of a LIBO Rate Tranche,
the period commencing on (and including) the Business Banking Day selected
by the Makers as the date on which such LIBO Rate Tranche is made or
continued as, or converted into a LIBO Rate Tranche pursuant to the terms
of this Note, and ending on (but excluding) the day which numerically
corresponds to such date one, two, three or six months thereafter (or if
such month has no numerically corresponding day, on the last Business
Banking Day of such month), in each case as the Makers may select, provided
that (a) if such Interest Period would otherwise end on a day which is not
a Business Banking Day, such Interest Period shall end on the next
following Business Banking Day (unless, in the case of a LIBO Rate Tranche,
such next following Business Banking Day is the first Business Banking Day
of the calendar month, in which case such Interest Period shall end on the
Business Banking Day next preceding such numerically corresponding day);
and (b) no Interest Period may end on a date later than the Maturity Date.
1.10 "LIBO Rate" means, relative to any Interest Period, a rate of
interest per annum (rounded upwards, if necessary, to the nearest 1/100 of
one percent) equal to the rate for US dollar deposits with maturities
comparable to such Interest Period for delivery on the first day of such
Interest Period which appears on the Reuters Screen LIBO Page as of
11:00 a.m. (London time) on the day that is two (2) London Banking Days
preceding the commencement date of the Interest Period. If at least two
(2) such offered rates appear on the Reuters Screen LIBO Page, the rate
will be the arithmetic mean of such offered rates. The Agent may, in its
discretion, use any other publicly available index or reference rate
showing rates offered for United States dollar deposits in the London
Interbank market as of the applicable date. In addition, the Agent may, in
its discretion, use rate quotations for daily or annual periods in lieu of
quotations for substantially equivalent monthly periods, in the absence of
such quotations for substantially equivalent monthly periods. Each
determination of the LIBO Rate applicable to a particular Interest Period
shall be made by the Agent and shall be conclusive and binding upon the
Makers and Lenders absent manifest error.
1.11 "LIBO Rate Tranche" means a Tranche bearing interest at all
times during the Interest Period applicable to such Tranche, at a fixed
rate of interest equal to the Note LIBO Rate applicable to such Interest
Period.
1.12 "Line of Credit Commitment" has the meaning ascribed to such
term in the Credit Agreement.
1.13 "Line of Credit Notes" means this Note and the other Line of
Credit Note executed by the Makers in favor of the Other Lender, each dated
of even date herewith, in the aggregate amount of the Line of Credit
Commitment, as same may be amended, supplemented, renewed, restated,
replaced or otherwise modified from time to time.
1.14 "Loan Documents" has the meaning described to such term in the
Credit Agreement.
1.15 "Loan Year" means each of the twelve (12) month periods
commencing on July 31, 1997 and on the first, second and third
anniversaries hereof.
1.16 "London Banking Day" means each day other than a Saturday, a
Sunday or any holiday on which commercial banks in London, England are
closed for business.
1.17 "Maturity Date" means the earlier of: (i) July 31, 2001 and
(ii) any earlier date upon which the principal balance outstanding
hereunder, together with all interest accrued thereon, shall become
immediately due and payable following an Event of Default, in accordance
with provisions of the Credit Agreement.
1.18 "Note" means this Line of Credit Promissory Note, in the amount
of the Lender's Committed Share of the Line of Credit Commitment, as same
maybe amended, supplemented, restated, replaced or otherwise modified from
time to time.
1.19 "Note LIBO Rate" means the Adjusted LIBO Rate applicable to a
specific LIBO Rate Tranche selected by the Makers for a relevant Interest
Period, plus 175 basis points.
1.20 "Note Prime Rate" means the Prime Rate applicable to the Prime
Rate Tranche. The Note Prime Rate shall be increased or decreased
effective on any date on which the Prime Rate shall be increased or
decreased.
1.21 "Other Lender" means, Bank United, a federal savings bank, also
being a "Lender".
1.22 "Prime Rate" means the annual rate of interest announced from
time to time by First Union National Bank, as its Prime Rate. The Prime
Rate is a reference rate for the information and use of the Agent in
establishing the actual rates to be charged to borrowers and is not
necessarily the lowest rate charged by the Agent. Should First Union
National Bank not publish a Prime Rate at any time during the term of this
Note, the Agent, in its reasonable discretion, may choose a substitute
Prime Rate. The rate of interest shall change automatically and
immediately as of the date of any change in the Prime Rate without notice
to Borrower or any endorser, surety or guarantor, if any.
1.23 "Prime Rate Tranche" means a Tranche bearing interest at the
Note Prime Rate.
1.24 "Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor
thereto or other rule, regulation or official interpretation of said Board
of Governors relating to reserve requirements applicable to member banks of
the Federal Reserve System.
1.25 "Required Lenders" has the meaning ascribed to such term in the
Credit Agreement.
1.26 "Reserve Percentage" means the stated maximum rate (expressed
as a decimal) at which reserves are required to be maintained by the Agent
during an Interest Period, including, without limitation (i) any basis,
supplemental, marginal, or emergency reserve under any regulations of any
governmental authority to which the Agent is subject, (ii) any reserve
prescribed by the Board of Governors of the Federal Reserve System (or any
successor), including, without limitation, Regulation D, for determining
the maximum reserve requirement in respect of "Eurocurrency liabilities"
(or in respect of any other category of liabilities which includes deposits
by reference to which the LIBO Rate is determined). Without limiting the
effect of the foregoing, the Reserve Percentage shall reflect any other
reserves required to be maintained by the Agent under any regulation of any
governmental authority to which the Agent is subject against (a) any
category of liabilities that include deposits with reference to which the
LIBO Rate is to be determined or (b) any category of extension of credit or
other assets that includes loans bearing interest at a rate based on the
LIBO Rate. Each determination of the Reserve Percentage shall be made by
the Agent and shall be conclusive and binding upon the Makers and Lenders
absent manifest error.
1.27 "Security Documents" has the meaning ascribed to such terms in
the Credit Agreement.
1.28 "Tranche" means any portion of the outstanding principal
balance under the Line of Credit Notes bearing interest at the applicable
Note LIBO Rate for a specific Interest Period, as selected by the Makers in
accordance with Section 2.1, below, and any portion of the outstanding
principal balance under the Line of Credit Notes which may from time to
time bear interest at the Note Prime Rate.
20 Selection and Calculation of Interest Rate.
2.1 Provided that no Event of Default or circumstance which with
the passage of time or giving of notice would become an Event of Default
then exists under the Loan Documents, and provided there shall at no time
be permitted to exist more than four LIBO Rate Tranches with respect to the
total principal balance outstanding under the Line of Credit Notes, the
Makers shall have the right to elect to have the Note LIBO Rate then in
effect for an Interest Period apply to a LIBO Rate Tranche, in accordance
with, and subject to the provisions of this Section 2.1. To make an
election to have such Note LIBO Rate apply to any LIBO Rate Tranche, from
time to time, the Makers shall give to the Agent irrevocable notice (a
"Rate Election Notice") not later than 11:00 a.m. (Ft. Lauderdale, Florida
time) at least three (3) Business Banking Days prior to the commencement
date of each such Interest Period, which Rate Election Notice shall be
addressed as follows, and shall be given in writing (by telecopy, hand
delivery, or overnight delivery service), in accordance with the provisions
of Section 11.4 of the Credit Agreement:
▇▇▇▇ ▇▇▇▇▇▇, Vice President
First Union National Bank
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Each such Rate Election Notice shall be in the form attached hereto as
Schedule 1 and shall specify: (i) the commencement day of the Interest
Period which shall be a Business Banking Day (and, with respect to any then
existing LIBO Rate Tranche, shall not be a date prior to the termination
date of such then existing LIBO Rate Tranche), (ii) the principal amount of
the LIBO Rate Tranche which shall be subject to the application of the Note
LIBO Rate, which shall be in a minimum amount of $2,000,000.00, and in
multiples of $100,000.00 and (iii) the applicable Interest Period which
shall apply to such LIBO Rate Tranche, provided, however, that no Interest
Period may extend beyond the Maturity Date.
2.2 If the Agent determines, absent manifest error, that the
maintenance of any Note LIBO Rate would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, of if the
Agent determines that the interest rate applicable to the Note LIBO Rate
does not accurately reflect the cost of maintaining any LIBO Rate Tranche
subject to such rate, then, at the election of the Agent, the Makers shall
not be entitled thereafter to select a Note LIBO Rate to be applicable to
any portions of the total outstanding principal balance under the Line of
Credit Notes, and the interest rate applicable to all of the outstanding
principal balance under the Line of Credit Notes then subject to the Note
LIBO Rate for any applicable Interest Period, shall, upon the expiration of
all such applicable Interest Periods, be converted to the Prime Rate.
2.3 In the event that the Makers shall fail to provide a timely
Rate Election Notice for the election of the Note LIBO Rate to apply to any
Advance or to any LIBO Rate Tranche, as of the termination date of the
applicable Interest Period for such Tranche, then as the date of such
Advance, or as of such termination date of such LIBO Rate Tranche, as the
case may be, the Prime Rate shall apply to such Advance or LIBO Rate
Tranche until the next eligible effective date for which the Maker shall
have provided a timely Rate Election Notice, and such Advance or such
principal amount previously comprising a LIBO Rate Tranche, shall
thereafter be deemed to be included in the Prime Rate Tranche.
2.4 Interest shall be calculated on the daily total outstanding
balance of all Advances of Loan Proceeds under the Line of Credit
Commitment, as such Advances are evidenced by the Line of Credit Notes, as
follows: (i) interest shall accrue on each LIBO Rate Tranche, commencing
with the effective date for each such LIBO Rate Tranche, at the applicable
Note LIBO Rate for the applicable Interest Period and (ii) interest shall
accrue on the Prime Rate Tranche, which shall comprise all of the
outstanding principal balance under the Line of Credit Notes not otherwise
subject to a LIBO Rate Tranche, at the Note Prime Rate, changing when and
as the Prime Rate changes. Interest shall be computed through and
including the date of any payment and shall be calculated for actual days
elapsed on the basis of a 360 day year (i.e. interest for each day on which
any principal is outstanding shall be calculated at the applicable interest
rate described above, divided by 360).
30 Payment of Interest and Principal.
3.1 Interest, calculated as above provided, shall be due and
payable by the Makers to the Agent, for the account of the Lender and Other
Lender, in accordance with their Actual Shares of the total outstanding
principal balance of the Line of Credit Notes, subject to the provisions of
Section 3.7 hereof, on the first Business Banking Day of the first calendar
month immediately following the Advance of Loan Proceeds under the Line of
Credit Commitment and continuing on the first day of each month thereafter
until the Maturity Date.
3.2 The total outstanding principal balance under the Line of
Credit Notes and all accrued but unpaid interest shall be fully due and
payable on the Maturity Date.
3.3 All payments of principal and interest under the Line of Credit
Notes shall be made in lawful money of the United States which shall be
legal tender in payment of all debts, public and private, at the time of
payment.
3.4 The Line of Credit Notes may be prepaid in whole or in part at
any time and from time to time, without penalty or premium, provided:
(i) any such prepayment shall be preceded by at least three (3) Business
Banking Days' prior written notice to the Agent and (ii) any such
prepayment shall be accompanied by accrued interest to the date of
prepayment and any other obligations and payments then due under the terms
of the Line of Credit Notes. If the Makers shall make a payment or
prepayment of all or any portion of the principal amount outstanding then
subject to a LIBO Rate Tranche, prior to the applicable termination date
thereof (including, without limitation, upon the acceleration of the
Maturity Date following an Event of Default), or the Makers shall attempt
to rescind a Rate Election Notice for a specified LIBO Rate Tranche, after
the Makers have submitted such Rate Election Notice to the Agent, then,
within three (3) Business Banking Days following written notice from the
Agent, the Makers shall pay to the Agent the amount of any loss or cost
incurred by the Agent, the Lender or the Other Lender resulting therefrom,
including, without limitation, any loss or cost resulting from the
liquidation or re-employment of deposits required to fund or maintain the
subject LIBO Rate Tranche, not to exceed the amount of interest which would
have been earned on the amount prepaid for the balance of the subject
Interest Period, at a rate equal to the difference, not less than zero, of
the LIBO Rate as of the first day of the Interest Period less the LIBO Rate
as of the date of such prepayment, for a corresponding Interest Period
commencing on the date of such prepayment. The obligations of the Makers
under this section shall survive payment of the Line of Credit Notes.
3.5 Prior to the Maturity Date, the Makers may borrow, repay and
reborrow hereunder, in accordance with the terms of the Credit Agreement.
The Makers shall repay the outstanding balances under the Line of Credit
Notes at least once each Loan Year, provided, however, that the Makers
shall, at no point, repay the outstanding balances under this Note or under
any of the other Line of Credit Notes to the extent that there shall be
less than One Thousand Dollars and no/100 ($1,000.00) outstanding
thereunder at any time, and shall not reborrow under the Line of Credit
Commitment for a period of at least thirty (30) days after such repayment
(a "Cleanup Repayment"). Notwithstanding the foregoing, however, the Maker
shall be entitled to forego such Cleanup Repayment for one Loan Year,
provided, however, that the Maker shall not be entitled to make any
Distributions (as defined in the Credit Agreement) during the Loan Year
following the Loan Year as to which the Makers shall have failed to make a
Cleanup Repayment, until the Makers shall make a Cleanup Repayment.
3.6 All payments of principal and interest under the Line of Credit
Notes shall be made in immediately available funds by 11:00 a.m. (Ft.
Lauderdale, Florida time) on a Business Banking Day, to the Agent for the
account of the Lenders, at the office of the Agent at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇,
or by wire to ABA #▇▇▇▇▇▇▇▇▇, Account No.465906 ▇▇▇▇▇▇▇, Reference
"Arvida," Attention: ▇▇▇▇ ▇▇▇▇▇▇, or at such other place as the Agent may
instruct. Any payments of principal or interest made after 11:00 a.m. (Ft.
Lauderdale, Florida time) shall be deemed to be payments made on the next
following Business Banking Day, for all purposes, hereof, including,
without limitation, the accrual of interest. Should any payment under the
Line of Credit Notes become due and payable on a day other than a Business
Banking Day, the maturity thereof shall be extended to the next succeeding
Business Banking Day, and, in the case of any payment of principal,
interest shall be payable thereon as calculated pursuant hereto, for each
Business Banking Day such principal is outstanding (provided, however, any
payment of principal received on any Business Banking Day by 11:00 a.m.
(Ft. Lauderdale, Florida time) shall not be deemed to be outstanding on
such Business Banking Day).
3.7 Notwithstanding anything to the contrary set forth herein, the
Agent shall provide the Makers with written notice prior to the first
Business Banking Day of each month of the interest installment with respect
to the Line of Credit Notes which is due and payable on such first Business
Banking Day of such month. With respect to each such monthly installment
of interest, the Agent and the Lenders hereby grant to the Makers a grace
period for the payment of same, which shall extend to the later of: (a) the
fifteenth (15th) day of the month or (b) if the Makers shall not have
received written notice of the monthly interest installment from the Agent,
prior to the first Business Banking Day of any month and the Makers shall
have provided written notice to the Agent, no later than such first
Business Banking Day of the month, of such Agent's failure to provide the
Makers with written notice of such interest installment, then, the date
fifteen (15) days from receipt by the Makers of such written notice of the
monthly interest installment. If the Agent shall not receive written
notice from the Makers on or before the first Business Banking Day of a
month, of the Agent's failure to provide written notice of an interest
installment, then, for all purposes of this Note, notwithstanding that the
Makers may later request such written notice of such interest installment,
such grace period shall extend to no later than the fifteenth (15th) day of
such month.
3.8 Any payment required to be paid by the Line of Credit Notes,
the Loan Documents or the Credit Agreement, with the exception of interest
and principal, shall be due and payable no later than fifteen (15) days
from receipt by the Makers from the Agent of written notice of the required
payment.
3.9 Provided the Agent has not exercised its right to accelerate
the Line of Credit Notes as provided in the Line of Credit Notes, the
Credit Agreement or the other Loan Documents: (a) in the event any payment
of principal required under the Line of Credit Notes, either pursuant to
the terms hereof or the terms of the Credit Agreement, is not received by
the Agent, for the account of the Lender and Other Lender, by the fifteenth
(15th) day following the day on which such payment is due, the Makers shall
pay to the Agent, for the account of the Lender and Other Lender, a late
charge of five percent (5%) of the payment not so received, the parties
agreeing that said charge is a fair and reasonable charge for the late
payment and shall not be deemed a penalty or as compounding interest, and
(b) in the event any scheduled payment of interest required under the Line
of Credit Notes is not received by the Agent, for the account of the Lender
and Other Lender, by the later of (i) fifteen (15) days from receipt by the
Makers of written notice of the monthly interest installment and (ii) the
fifteenth (15th) day of such month, the Makers shall pay to the Agent, for
the account of the Lender and Other Lender, a late charge of five percent
(5%) of the payment not so received, the parties agreeing that said charge
is a fair and reasonable charge for the late payment and shall not be
deemed a penalty or as compounding interest. Further, if any payment
required to be paid by the Line of Credit Notes, the Credit Agreement or
the other Loan Documents, with the exception of interest and principal, is
not paid within fifteen (15) days from receipt by the Makers from the Agent
of written notice of the required payment, the Makers shall pay to the
Agent, for the account of the Lender and Other Lender, a late charge of
five percent (5%) of the payment not so received, the parties agreeing that
said charge is a fair and reasonable charge for the late payment and shall
not be deemed a penalty or as compounding interest.
40 Collateral Security. This Note and the other Line of Credit Note are
issued pursuant to the Credit Agreement. This Note and the other Line of
Credit Note are secured by the Credit Agreement, the Security Documents and
the other Loan Documents. Reference is hereby made to the Credit
Agreement, the Security Documents and the other Loan Documents for a
description of Events of Default and rights of acceleration of the Maturity
Date upon the occurrence of an Event of Default. It is expressly agreed
that all of the covenants, conditions and agreements contained in the
Credit Agreement, the Security Documents and the other Loan Documents are
made a part of this Note and the other Line of Credit Note.
50 Events of Default.
5.1 Upon the occurrence of an Event of Default, the Agent may, and
upon the direction of the Required Lenders, shall declare the entire amount
of this Note and the other Line of Credit Note, including the principal
balance then outstanding thereunder, together with all interest accrued
thereon, to be immediately due and payable, without notice, (the Makers
hereby expressly waive notice of such Event of Default), time being of the
essence of this Line of Credit Note and the other Line of Credit Note. Any
Event of Default under this Note shall be an Event of Default under all
other Loan Documents and an Event of Default under any other Loan Document
shall be an Event of Default under this Note.
5.2 In the event the Agent accelerates the Line of Credit Notes as
herein provided or the full amount of outstanding principal and interest
under the Line of Credit Notes is not fully repaid to the Agent for the
account of the Lenders on or before the Maturity Date, then the entire
unpaid principal balance under the Line of Credit Notes, together with all
interest accrued thereon, shall bear interest from the date of an Event of
Default or from the Maturity Date, respectively, at the Default Rate. Any
late charge paid by the Makers shall be applied to the interest charged at
the Default Rate after acceleration of the Line of Credit Notes.
5.3 The remedies of the Agent, the Lender and Other Lender, as
provided herein, or in the Security Documents, the other Loan Documents or
Credit Agreement shall be cumulative and concurrent and may be pursued
singularly, successively or together, by the Agent in accordance with the
terms of the Credit Agreement, and may be exercised as often as the
occasion therefor shall arise. Notwithstanding anything herein seemingly
to the contrary, neither the Agent, the Lender or the Other Lender shall
take any action, including, without limitation, in connection with the
enforcement of any of their rights under the Line of Credit Notes, the
Credit Agreement or other Loan Documents, unless such action is consistent
with the action taken by the Agent, the Lender or the Other Lender, as the
case may be, with respect to all of the Line of Credit Notes and in
accordance with the provisions of the Credit Agreement.
60 Usury. Nothing herein contained, nor in any instrument or
transaction related hereto, shall be construed or so operate as to require
the Makers, or any person liable for the payment of the Loan evidenced by
the Line of Credit Notes, to pay interest in an amount or at a rate greater
than the highest non-usurious rate permissible under applicable law as
amended from time to time. Should any interest or other charges paid by
the Makers, or any party liable for the payment of the Loan evidenced by
the Line of Credit Notes, result in the computation or earning of interest
in excess of the highest non-usurious rate permissible under applicable
law, then any and all such excess shall be and the same is hereby waived by
the Agent, the Lender and the Other Lender, and all such excess shall be
paid by the Agent, the Lender or the Other Lender, as the case shall be, to
the Makers or to any party liable for the payment of the Loan evidenced by
the Line of Credit Notes, it being the intent of the parties hereto that
under no circumstances shall the Makers or any party liable for the payment
of the Loan hereunder, be required to pay interest in excess of the highest
non-usurious rate permissible under applicable law as amended from time to
time. By operation of Section 687.12, Florida Statutes (1996), the
interest rate charged under the Note and the other Line of Credit Notes is
authorized by Chapters 658, 665 and 687, Florida Statutes (1996) and
applicable federal law.
70 Waivers/Miscellaneous Matters.
7.1 The Line of Credit Notes are to be construed according to the
applicable laws of the State of Florida and the United States of America.
Any action brought upon the enforcement of this Note and the other Line of
Credit Note is hereby authorized to be instituted and prosecuted in Broward
County, Florida, or at the United States District Court for the Southern
District of Florida, at the election of the Agent, subject to and in
accordance with the terms of the Credit Agreement.
7.2 The Line of Credit Notes may not be changed orally, but only by
an agreement in writing, signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
7.3 Each maker, endorser and guarantor or any person, firm or
corporation becoming liable under this Note and the other Line of Credit
Note hereby consents to any extension or renewal of this Note and the other
Line of Credit Note or any part thereof, without notice, and agrees that it
will remain liable under this Note and the other Line of Credit Note during
any extension or renewal thereof, until the indebtedness evidenced hereby
and thereby is paid in full.
7.4 Notwithstanding anything to the contrary herein or in the
Credit Agreement, the Security Documents or other Loan Documents (or any
instruments or certificates executed or delivered in connection therewith
at any time or times), neither any present or future constituent partner
(as hereinafter defined) in, or agent of, any of the Makers, nor any
shareholder, member, officer, manager, director, employee, trustee,
beneficiary or agent of any corporation or other entity that is or becomes
a constituent partner in any of the Makers shall be personally liable,
directly or indirectly (and neither the Agent, the Lender or the Other
Lender shall have any recourse against any property or assets of any such
constituent partner or other person or entity) under or in connection with
the Line of Credit Notes, the Credit Agreement, the Security Documents, the
other Loan Documents, the Loans, or any instruments securing or otherwise
executed in connection therewith, or any certificate delivered in
connection therewith, or any amendments or modifications to any of the
foregoing made at any time or times, heretofore or hereafter (such persons
as described in this sentence being herein collectively referred to as
"Non-Recourse Persons"), provided, however, Non-Recourse Persons shall not
include any Maker or any Subsidiary of a Maker that would otherwise be
liable as a general partner in a Maker. The recourse of the Agent, the
Lender, the Other Lender and their successors and assignees under or in
connection with the Line of Credit Notes, the Security Documents, the
Credit Agreement, the other Loan Documents, the Loans and such instruments
and certificates, and any such amendments or modifications, shall be
limited to the assets of the Makers, and the Agent, the Lender, the Other
Lender and each of their successors and assignees waive and do hereby waive
any such personal liability against any such Non-Recourse Persons. For the
purposes of the Line of Credit Notes, the Security Documents, the Credit
Agreement and each other Loan Document and any such instruments and
certificates and any such amendments or modifications, neither the negative
capital account of a constituent partner in any Maker, nor any obligation
of any constituent partner in any Maker to restore a negative capital
account or to advance or contribute capital to any Maker or any other
constituent partner in any Maker shall be deemed to be the property or the
asset of any Maker or any such other constituent partner (and neither the
Agent, the Lender or the Other Lender nor any of their successors or
assignees shall have any right to collect, enforce or proceed against or
with respect to any such negative capital account or partner's obligation
to restore, advance or contribute). As used in this section, the term
"constituent partner" means any direct partner in any Maker, and any person
or entity that is a partner in any partnership that, directly or indirectly
through one or more other partnerships, is a partner in any Maker.
7.5 Time is of the essence hereof with regard to the performance
and observance of all of the terms, provisions and conditions hereof on the
part of the Makers to be observed and/or performed.
7.6 All sums received by the Agent for application to this Note and
the other Line of Credit Note shall be applied by the Agent in the manner
set forth in Section 2.8 of the Credit Agreement.
7.7 The Makers are strictly liable for and hereby agree to pay or
reimburse the Agent (but not the Other Lender) for, and hold it harmless
from and against all of its reasonable third party costs and expenses
incurred in connection with the collection or enforcement of, or the
preservation of any rights under, this Note, the other Line of Credit Note,
the Credit Agreement or other Loan Documents, including, without
limitation, the reasonable fees and disbursements of counsel for the Agent,
including attorneys' fees out of court, in trial, on appeal, in bankruptcy
proceedings or otherwise. The Makers shall pay all such amounts in
accordance with the terms of the Credit Agreement, and until repaid, such
sums shall bear interest at the Default Rate.
7.8 All notices and like communications required or permitted to be
given pursuant to the provisions of this Note and the other Line of Credit
Note shall be given in accordance with the notice provisions of
Section 11.4 of the Credit Agreement.
7.9 As used herein, the terms "Makers," "Agent," "Lender" and
"Other Lender" shall be deemed to include their respective successors and
assigns.
7.10 In the event any one or more of the provisions of this Note or
the other Line of Credit Note shall for any reasons be held to be invalid,
illegal, or unenforceable, in whole or in part or in any respect, or in the
event one or more of the provisions of this Note or the other Line of
Credit Note operates or would prospectively operate to invalidate this Note
or the other Line of Credit Note, then in any of those events, only such
provision or provisions shall be deemed null and void and shall not effect
any other provision of this Note or the other Line of Credit Note. The
remaining provisions of this Note and the other Line of Credit Note shall
remain operative and in full force and effect and in shall no way be
affected, prejudiced or disturbed thereby. In the event any provisions of
this Note or the other Line of Credit Note are inconsistent with any
provisions of the Credit Agreement, the Security Documents or other Loan
Documents, or any other agreements or documents executed in connection with
the Line of Credit Note, the Line of Credit Note shall control.
7.11 It is expressly understood and agreed that neither the Agent,
the Lender or the Other Lender shall ever be construed for any purposes, to
be the partner, joint venturer, principal or associate of the Makers or any
of them or any person or party claiming by, through or under the Makers or
any of them in the conduct of their respective businesses.
7.12 The undersigned Makers and any endorsers, sureties, guarantors
and all others who are or may become liable for the payment hereof (a)
severally waive presentment for payment, demand, notice of demand, notice
of nonpayment or dishonor, protest and notice of protest of this Note and
the other Line of Credit Note, and all other notices in connection with the
delivery, acceptance, performance or enforcement of the payment of this
Note and the other Line of Credit Note, (b) expressly consent to all
extensions of time, renewals, postponements of time of payment of this Note
and the other Line of Credit Note or other modifications from time to time
prior to or after the Maturity Date, without notice, consent or
consideration to any of the foregoing, (c) expressly agree to any
substitution, exchange, addition or release of any of the other Loan
Documents or the addition or release of any party or person primarily or
secondarily liable hereon, (d) expressly agree that the Agent and/or the
Lender or Other Lender shall not be required first to institute any suit,
or to exhaust their remedies against the Makers or any other person or
party to become liable hereunder or against the other Loan Documents in
order to enforce the payment of this Note and the other Line of Credit
Note, and (e) expressly agree that, notwithstanding the occurrence of any
of the foregoing, they shall be and remain, jointly and severally, directly
liable for all sums due under this Note, the other Line of Credit Note and
the other Loan Documents subject to the terms and conditions hereof and
thereof.
7.13 Neither the Agent or the Lender or Other Lender shall be
deemed, by any act of omission or commission, to have waived any of their
rights or remedies hereunder unless such waiver is in writing given in
accordance with the terms of the Credit Agreement, and then only to the
extent specifically set forth in the writing. A waiver with reference to
one event shall not be construed as continuing or as a bar to or waiver of
any right or remedy as to a subsequent event.
7.14 Neither this Note or the other Line of Credit Note nor any
provision hereof or thereof may be changed or terminated orally, but only
by an instrument in writing signed by the party against whom enforcement of
the change or termination is sought.
7.15 Failure to accelerate this Note or the other Line of Credit
Note after an Event of Default, or the acceptance of a past due
installment, shall not be construed as a novation of the contract or a
waiver of the right of the Agent or the Lender or Other Lender to
thereafter insist upon strict compliance with the terms of this Note and
the other Line of Credit Note without previous notice of such intention
being given to the Makers.
7.16 Notwithstanding anything to the contrary in this Note, the
other Line of Credit Notes, the Credit Agreement, the Security Documents or
other Loan Documents, the maximum liability of any Maker other than
Arvida/JMB Partners, L.P. (herein a "Maker Subsidiary" or "Maker
Affiliate") for the Obligations created, evidenced and secured thereby and
hereby shall not exceed the maximum amount, as such maximum amount shall be
determined by a court of competent jurisdiction of any such Maker
Subsidiary's or Maker Affiliate's liability therefor which may be incurred
without rendering the Obligations, as they relate to such Maker Subsidiary
or Maker Affiliate, voidable as a fraudulent conveyance or fraudulent
transfer under the Bankruptcy Code or under any other present or future
federal or state laws or statutes relating to bankruptcy, insolvency,
assignment for the benefit of creditors or other relief for debtors,
including, without limitation, the Uniform Fraudulent Transfer Act or the
Uniform Fraudulent Conveyance Act, as in effect in any jurisdiction wherein
any such Maker Subsidiary's or Maker Affiliate's Solvency (as defined in
the Credit Agreement) is subject to determination. For purposes of
determining such liability of any Maker Subsidiary or Maker Affiliate, due
consideration shall be given to the benefits received, directly or
indirectly, by such Maker Subsidiary or Maker Affiliate from the Loans (as
defined in the Credit Agreement) made pursuant to the Commitments (as
defined in the Credit Agreement).
7.17 The section headings of this Note and the other Line of Credit
Note are for reference purposes only and are to be given no effect in the
construction or interpretation of this Note or the other Line of Credit
Note.
THE MAKERS AND THE LENDER BY ITS ACCEPTANCE HEREOF HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS NOTE OR ANY OTHER LINE OF CREDIT NOTE OR
THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT CONTEMPLATED TO BE EXECUTED
IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY MAKERS, THE AGENT,
THE LENDER OR ANY OTHER LENDER.
SIGNATURE PAGES FOLLOW
IN WITNESS WHEREOF, the undersigned Makers have executed this Note on
the date set forth above.
MAKERS:
ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
THE AOK GROUP,
a Florida general partnership
By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its
sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS,
a Florida general partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
METRODRAMA JOINT VENTURE,
a Florida general partnership
By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its
sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS, a
Florida general partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
ARVIDA/JMB PARTNERS,
a Florida general partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
ARVIDA GRAND BAY LIMITED PARTNERSHIP-IV,
a Delaware limited partnership
By: ARVIDA GRAND BAY MANAGERS, INC.,
a Delaware corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
GULF AND PACIFIC COMMUNICATIONS
LIMITED PARTNERSHIP,
a Delaware limited partnership
By: PACIFIC PROPERTIES, INC.,
an Illinois corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
WESTON HILLS COUNTRY CLUB LIMITED
PARTNERSHIP,
a Delaware limited partnership
By: WHCC, INC.,
an Illinois corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
SOUTHEAST FLORIDA HOLDINGS, INC.,
an Illinois corporation
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
NOTE:DOCUMENTARY STAMPS AND INTANGIBLE TAXES WERE PAID IN CONNECTION
WITH THE VARIOUS NOTES PREVIOUSLY CONSOLIDATED AND EVIDENCE OF SAME APPEARS
ON THAT CERTAIN MORTGAGE AND SECURITY AGREEMENT DATED JULY 31, 1997, AND
RECORDED IN OFFICIAL RECORDS BOOK 26802, PAGE 888 OF THE PUBLIC RECORDS OF
BROWARD COUNTY, FLORIDA. THIS BIFURCATION OF NOTE AGREEMENT BIFURCATES
EXISTING INDEBTEDNESS AND/OR UNFUNDED AVAILABILITY WITHOUT ENLARGEMENT. NO
ADDITIONAL INDEBTEDNESS IS BEING INCURRED AND NO ADDITIONAL DOCUMENTARY
STAMPS OR INTANGIBLE TAXES ARE DUE.
BIFURCATION OF NOTE AGREEMENT
THIS BIFURCATION OF NOTE AGREEMENT ("Agreement) executed
effective as of September 1, 1998 by and between ARVIDA/JMB PARTNERS,
L.P., a Delaware limited partnership, ARVIDA/JMB PARTNERS, a Florida
general partnership, ARVIDA GRAND BAY LIMITED PARTNERSHIP IV, a Delaware
limited partnership, THE AOK GROUP, a Florida general partnership,
METRODRAMA JOINT VENTURE, a Florida general partnership, SOUTHEAST FLORIDA
HOLDINGS, INC., an Illinois corporation, GULF AND PACIFIC COMMUNICATIONS
LIMITED PARTNERSHIP, a Delaware limited partnership and WESTON HILLS
COUNTRY CLUB LIMITED PARTNERSHIP, a Delaware limited partnership (jointly
and severally, "Borrowers"), having an address of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and FIRST UNION NATIONAL BANK, as Agent, a
national banking association, having an address of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Lender").
W I T N E S S E T H:
WHEREAS, Lender is owner and holder of a certain Consolidated and
Restated Demand Note Letter of Credit Line Promissory Note executed by
Borrowers and dated of even date herewith in the original principal amount
of $5,000,000 ("Consolidated Note"), subject to the terms of that certain
Credit Agreement dated July 31, 1997 ("Credit Agreement") and secured by
the "Security Documents" (as defined in the Credit Agreement); and
WHEREAS, Borrowers and Lender wish to bifurcate the Consolidated Note
into two notes to remain subject to the terms of the Credit Agreement, as
modified of even date, and to remain secured by the Security Documents, as
modified of even date.
NOW, THEREFORE, in consideration of the mutual benefit to be
obtained, the parties hereto, intending to be legally bound, do hereby
agree as follows:
1. The above recitals are true and correct and are incorporated
herein by this reference.
2. Borrowers acknowledge that the unpaid principal balance of the
Consolidated Note as of the date hereof is $ -0- and the unfunded
availability thereof is $5,000,000.
3. As of the date hereof, Borrowers have no defenses, rights of
set-off, claims or counterclaims against Lender under the Consolidated
Note, the Credit Agreement or the Security Documents and Borrowers hereby
reaffirm their obligations thereunder as modified hereby.
4. This Agreement is not intended by Borrowers to be a novation,
the existing indebtedness not being forgiven hereby, but merely bifurcated
into two notes.
5. The Consolidated Note is hereby bifurcated to evidence two
debts, represented by: (a) a $3,080,000 Demand Note Letter of Credit Line
Restated Renewal Promissory Note, attached hereto as Exhibit A, and (b) a
$1,920,000 Demand Note Letter of Credit Line Restated Renewal Promissory
Note, a copy of which is attached hereto as Exhibit B. Simultaneously
herewith, the $1,920,000 Demand Note Letter of Credit Line Restated Renewal
Promissory Note, a copy of which is attached hereto as Exhibit B shall be
assigned by Lender to Bank United, a federal savings bank, due to which
intended assignment the bifurcated notes attached hereto as Exhibit A and
Exhibit B contain references to multiple lenders so as to be consistent
with the Credit Agreement, as modified of even date.
IN WITNESS WHEREOF, the parties have executed this Bifurcation of
Note Agreement the day and year first above written.
BORROWERS:
ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
ARVIDA /JMB PARTNERS, a Florida general
partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, a general
partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
ARVIDA GRAND BAY LIMITED PARTNERSHIP
IV,
a Delaware limited partnership
By: ARVIDA GRAND BAY MANAGERS, INC.,
a Delaware corporation, its sole
general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
THE AOK GROUP, a Florida general
partnership
By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership, a
general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its
sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS, a Florida
general partnership, a general partner
By: ARVIDA/JMB MANAGERS, INC.,
Delaware corporation, a
general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
METRODRAMA JOINT VENTURE,
a Florida general partnership
By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its
sole
general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS, a Florida
general partnership, a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, a general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
SOUTHEAST FLORIDA HOLDINGS, INC.,
an Illinois corporation
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
GULF AND PACIFIC COMMUNICATIONS
LIMITED PARTNERSHIP,
a Delaware limited partnership
By: PACIFIC PROPERTIES, INC., an
Illinois corporation, its sole general partners
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
WESTON HILLS COUNTRY CLUB LIMITED
PARTNERSHIP, a Delaware limited partnership
By: WHCC, INC., an Illinois
corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
LENDER:
FIRST UNION NATIONAL BANK,
a national banking association
By:
Print Name:
Title:
[CORPORATE SEAL]
EXHIBIT "A" TO BIFURCATION OF NOTE AGREEMENT
THE TAX HAS BEEN PAID AND THE PROPER DOCUMENTARY STAMPS HAVE BEEN AFFIXED
TO THE MORTGAGE AND SECURITY AGREEMENT SECURING THIS PROMISSORY NOTE. NON-
RECURRING INTANGIBLE TAXES SHALL BE PAID AT THE TIME OF EACH ADVANCE, ON
SUCH ADVANCE.
DEMAND NOTE
LETTER OF CREDIT LINE
$3,080,000 Effective Date: September 1, 1998
FOR VALUE RECEIVED, the undersigned, Arvida/JMB Partners, L.P., a
Delaware limited partnership, Arvida/JMB Partners, a Florida general
partnership, Arvida Grand Bay Limited Partnership IV, a Delaware limited
partnership, The AOK Group, a Florida general partnership, Metrodrama Joint
Venture, a Florida general partnership, Southeast Florida Holdings, Inc.,
an Illinois corporation, Gulf and Pacific Communications Limited
Partnership, a Delaware limited partnership, and Weston Hills Country Club
Limited Partnership, a Delaware limited partnership, all having an office
at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
collectively referred to as the "Makers"), jointly and severally promise to
pay to the order of First Union National Bank, a national banking
association, its successors or assigns (the "Lender"), the principal sum of
THREE MILLION EIGHTY THOUSAND DOLLARS ($3,080,000), or the Lender's Actual
Share of all sums as may be advanced under the Letter of Credit Commitment,
pursuant to and in accordance with the Credit Agreement, together with
interest on the principal balance of this Note outstanding from time to
time, as same shall accrue thereon in accordance with the terms hereof, but
not to exceed the maximum non-usurious rate permitted by law.
10 Definitions. Capitalized terms not otherwise defined herein shall
have the meanings ascribed to such terms in the Credit Agreement. In
addition to capitalized terms defined elsewhere herein, the following
capitalized terms shall have the meanings ascribed to them as follows:
1.1 "Actual Share" means the percentage interest of the Lender in
the Advance made pursuant to the Letter of Credit Commitment.
1.2 "Agent" means First Union National Bank, a national banking
association.
1.3 "Business Banking Day" means a day that is not a Saturday, a
Sunday, or a day on which the Agent is closed pursuant to authorization or
requirement of law.
1.4 "Committed Share" means the percentage interest of the Lender
in the Letter of Credit Commitment.
1.5 "Credit Agreement" means the Credit Agreement dated July 31,
1997, between Lender and the Borrower (among others), as amended, of even
date herewith, as the same may be amended, supplemented, restated, replaced
or otherwise modified from time to time.
1.6 "Default Rate" means the lesser of: (i) five percent (5%) above
the Note Prime Rate and (ii) the maximum non-usurious rate permitted under
applicable law, provided the maximum interest rate shall never be more then
twenty-four and 99/100 percent (24.99%).
1.7 "Event of Default" has the meaning ascribed to such term in the
Credit Agreement.
1.8 "Letter of Credit Commitment" has the meaning ascribed to such
term in the Credit Agreement.
1.9 "Letter of Credit Notes" means this Note and the other Letter
of Credit Note executed by the Makers in favor of the Other Lender, each
dated of even date herewith, in the aggregate amount of the Letter of
Credit Commitment, as same may be amended, supplemented, renewed, restated,
replaced or otherwise modified from time to time.
1.10 "Loan Documents" has the meaning described to such term in the
Credit Agreement.
1.11 "Note" means this Note, in the amount of the Lender's Committed
Share of the Letter of Credit Commitment, as same maybe amended,
supplemented, restated, replaced or otherwise modified from time to time.
1.12 "Other Lender" means Bank United, a federal savings bank, also
being a "Lender".
1.13 "Prime Rate" means the annual rate of interest announced from
time to time by First Union National Bank, as its Prime Rate. The Prime
Rate is a reference rate for the information and use of the Agent in
establishing the actual rates to be charged to borrowers and is not
necessarily the lowest rate charged by the Agent or the Lender. Should
First Union National Bank not publish a Prime Rate at any time during the
term of this Note, the Agent, in its reasonable discretion, may choose a
substitute Prime Rate. The rate of interest shall change automatically and
immediately as of the date of any change in the Prime Rate without notice
to Borrower or any endorser, surety or guarantor, if any.
1.14 "Required Lenders" has the meaning ascribed to such term in the
Credit Agreement.
1.15 "Security Documents" has the meaning ascribed to such terms in
the Credit Agreement.
20 Payment of Interest and Principal.
2.1 The Maker shall pay to the Agent for the account of the Lender
and the Other Lender, the entire principal balance of all Advances
outstanding under the Letter of Credit Notes, together with all interest
accrued thereon, at the Prime Rate, not later than three (3) Business
Banking Days following receipt of demand therefor, from the Agent. The
failure of the Makers to make such payment at such time shall constitute an
Event of Default hereunder, under the other Letter of Credit Note, and
under the Credit Agreement, and thereafter interest shall accrue on the
entire principal balance outstanding under the Letter of Credit Notes, at
the Default Rate.
2.2 All payments of principal and interest under the Letter of
Credit Notes shall be made in lawful money of the United States which shall
be legal tender in payment of all debts, public and private, at the time of
payment.
2.3 All payments of principal and interest under the Letter of
Credit Notes shall be made in immediately available funds by 11:00 a.m.
(Ft. Lauderdale, Florida time) on a Business Banking Day, to the Agent for
the account of the Lenders, at the office of the Agent at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇,
or by wire to ABA #▇▇▇▇▇▇▇▇▇, Account No.465906 ▇▇▇▇▇▇▇, Reference
"Arvida," Attention: ▇▇▇▇ ▇▇▇▇▇▇, or at such other place as the Agent may
instruct. Any payments of principal or interest made after 11:00 a.m. (Ft.
Lauderdale, Florida time) shall be deemed to be payments made on the next
following Business Banking Day, for all purposes, hereof, including,
without limitation, the accrual of interest. Should any payment under the
Letter of Credit Notes become due and payable on a day other than a
Business Banking Day, the maturity thereof shall be extended to the next
succeeding Business Banking Day, and, in the case of any payment of
principal, interest shall be payable thereon as calculated pursuant hereto,
for each Business Banking Day such principal is outstanding (provided,
however, any payment of principal received on any Business Banking Day by
11:00 a.m. (Ft. Lauderdale, Florida time) shall not be deemed to be
outstanding on such Business Banking Day).
30 Collateral Security. This Note and the other Letter of Credit Note
are issued pursuant to the Credit Agreement. This Note and the other
Letter of Credit Note are secured by the Credit Agreement, the Security
Documents and the other Loan Documents. Reference is hereby made to the
Credit Agreement, the Security Documents and the other Loan Documents for a
description of Events of Default and rights of acceleration of the Maturity
Date upon the occurrence of an Event of Default. It is expressly agreed
that all of the covenants, conditions and agreements contained in the
Credit Agreement, the Security Documents and the other Loan Documents are
made a part of this Note and the other Letter of Credit Note. The Letter
of Credit Commitment expires July 31, 2001, at which time, the Makers shall
either (i) cause all underlying Letters of Credit to be returned and
cancelled or (ii) if not previously paid to the Agent, pay to the Agent
Cash Collateral (as defined in the Credit Agreement) in an amount equal to
the maximum amount of all outstanding Letters of Credit.
40 Events of Default. The remedies of the Agent, the Lender and Other
Lender, as provided herein, or in the Security Documents, the other Loan
Documents or Credit Agreement shall be cumulative and concurrent and may be
pursued singularly, successively or together, by the Agent in accordance
with the terms of the Credit Agreement, and may be exercised as often as
the occasion therefor shall arise. Notwithstanding anything herein
seemingly to the contrary, neither the Agent, the Lender or the Other
Lender shall take any action, including, without limitation, in connection
with the enforcement of any of their rights under the Letter of Credit
Notes, the Credit Agreement or other Loan Documents, unless such action is
consistent with the action taken by the Agent, the Lender or the Other
Lender, as the case may be, with respect to all of the Letter of Credit
Notes and in accordance with the provisions of the Credit Agreement.
50 Usury. Nothing herein contained, nor in any instrument or
transaction related hereto, shall be construed or so operate as to require
the Makers, or any person liable for the payment of the Loan evidenced by
the Letter of Credit Notes, to pay interest in an amount or at a rate
greater than the highest non-usurious rate permissible under applicable law
as amended from time to time. Should any interest or other charges paid by
the Makers, or any party liable for the payment of the Loan evidenced by
the Letter of Credit Notes, result in the computation or earning of
interest in excess of the highest non-usurious rate permissible under
applicable law, then any and all such excess shall be and the same is
hereby waived by the Agent, the Lender and the Other Lender, and all such
excess shall be paid by the Agent, the Lender or the Other Lender, as the
case shall be, to the Makers or to any party liable for the payment of the
Loan evidenced by the Letter of Credit Notes, it being the intent of the
parties hereto that under no circumstances shall the Makers or any party
liable for the payment of the Loan hereunder, be required to pay interest
in excess of the highest non-usurious rate permissible under applicable law
as amended from time to time. By operation of Section 687.12, Florida
Statutes (1996), the interest rate charged under the Note and the other
Letter of Credit Notes is authorized by Chapters 658, 665 and 687, Florida
Statutes (1996) and applicable federal law.
60 Waivers/Miscellaneous Matters.
6.1 The Letter of Credit Notes are to be construed according to the
applicable laws of the State of Florida and the United States of America.
Any action brought upon the enforcement of this Note and the other Letter
of Credit Note is hereby authorized to be instituted and prosecuted in
Broward County, Florida, or at the United States District Court for the
Southern District of Florida, at the election of the Agent, subject to and
in accordance with the terms of the Credit Agreement.
6.2 The Letter of Credit Notes may not be changed orally, but only
by an agreement in writing, signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
6.3 Each maker, endorser and guarantor or any person, firm or
corporation becoming liable under this Note and the other Letter of Credit
Note hereby consents to any extension or renewal of this Note and the other
Letter of Credit Note or any part thereof, without notice, and agrees that
it will remain liable under this Note and the other Letter of Credit Note
during any extension or renewal thereof, until the indebtedness evidenced
hereby and thereby is paid in full.
6.4 Notwithstanding anything to the contrary herein or in the
Credit Agreement, the Security Documents or other Loan Documents (or any
instruments or certificates executed or delivered in connection therewith
at any time or times), neither any present or future constituent partner
(as hereinafter defined) in, or agent of, any of the Makers, nor any
shareholder, member, officer, manager, director, employee, trustee,
beneficiary or agent of any corporation or other entity that is or becomes
a constituent partner in any of the Makers shall be personally liable,
directly or indirectly (and neither the Agent, the Lender or the Other
Lender shall have any recourse against any property or assets of any such
constituent partner or other person or entity) under or in connection with
the Letter of Credit Notes, the Credit Agreement, the Security Documents,
the other Loan Documents, the Loans, or any instruments securing or
otherwise executed in connection therewith, or any certificate delivered in
connection therewith, or any amendments or modifications to any of the
foregoing made at any time or times, heretofore or hereafter (such persons
as described in this sentence being herein collectively referred to as
"Non-Recourse Persons"), provided, however, Non-Recourse Persons shall not
include any Maker or any Subsidiary of a Maker that would otherwise be
liable as a general partner in a Maker. The recourse of the Agent, the
Lender, the Other Lender and their successors and assignees under or in
connection with the Letter of Credit Notes, the Security Documents, the
Credit Agreement, the other Loan Documents, the Loans and such instruments
and certificates, and any such amendments or modifications, shall be
limited to the assets of the Makers, and the Agent, the Lender, the Other
Lender and each of their successors and assignees waive and do hereby waive
any such personal liability against any such Non-Recourse Persons. For the
purposes of the Letter of Credit Notes, the Security Documents, the Credit
Agreement and each other Loan Document and any such instruments and
certificates and any such amendments or modifications, neither the negative
capital account of a constituent partner in any Maker, nor any obligation
of any constituent partner in any Maker to restore a negative capital
account or to advance or contribute capital to any Maker or any other
constituent partner in any Maker shall be deemed to be the property or the
asset of any Maker or any such other constituent partner (and neither the
Agent, the Lender or the Other Lender nor any of their successors or
assignees shall have any right to collect, enforce or proceed against or
with respect to any such negative capital account or partner's obligation
to restore, advance or contribute). As used in this section, the term
"constituent partner" means any direct partner in any Maker, and any person
or entity that is a partner in any partnership that, directly or indirectly
through one or more other partnerships, is a partner in any Maker.
6.5 Time is of the essence hereof with regard to the performance
and observance of all of the terms, provisions and conditions hereof on the
part of the Makers to be observed and/or performed.
6.6 All sums received by the Agent for application to this Note and
the other Letter of Credit Note shall be applied by the Agent in the manner
set forth in Section 2.8 of the Credit Agreement.
6.7 The Makers are strictly liable for and hereby agree to pay or
reimburse the Agent (but not the Other Lender) for, and hold it harmless
from and against all of its reasonable third party costs and expenses
incurred in connection with the collection or enforcement of, or the
preservation of any rights under, this Note, the other Letter of Credit
Note, the Credit Agreement or other Loan Documents, including, without
limitation, the reasonable fees and disbursements of counsel for the Agent,
including attorneys' fees out of court, in trial, on appeal, in bankruptcy
proceedings or otherwise. The Makers shall pay all such amounts in
accordance with the terms of the Credit Agreement, and until repaid, such
sums shall bear interest at the Default Rate.
6.8 All notices and like communications required or permitted to be
given pursuant to the provisions of this Note and the other Letter of
Credit Note shall be given in accordance with the notice provisions of
Section 11.4 of the Credit Agreement.
6.9 As used herein, the terms "Makers," "Agent," "Lender" and
"Other Lender" shall be deemed to include their respective successors and
assigns.
6.10 In the event any one or more of the provisions of this Note or
the other Letter of Credit Note shall for any reasons be held to be
invalid, illegal, or unenforceable, in whole or in part or in any respect,
or in the event one or more of the provisions of this Note or the other
Letter of Credit Note operates or would prospectively operate to invalidate
this Note or the other Letter of Credit Note, then in any of those events,
only such provision or provisions shall be deemed null and void and shall
not effect any other provision of this Note or the other Letter of Credit
Note. The remaining provisions of this Note and the other Letter of Credit
Note shall remain operative and in full force and effect and in shall no
way be affected, prejudiced or disturbed thereby. In the event any
provisions of this Note or the other Letter of Credit Note are inconsistent
with any provisions of the Credit Agreement, the Security Documents or
other Loan Documents, or any other agreements or documents executed in
connection with the Letter of Credit Notes, the Letter of Credit Notes
shall control.
6.11 It is expressly understood and agreed that neither the Agent,
the Lender or the Other Lender shall ever be construed for any purposes, to
be the partner, joint venturer, principal or associate of the Makers or any
of them or any person or party claiming by, through or under the Makers or
any of them in the conduct of their respective businesses.
6.12 The undersigned Makers and any endorsers, sureties, guarantors
and all others who are or may become liable for the payment hereof
(a) severally waive presentment for payment, demand, notice of demand,
notice of nonpayment or dishonor, protest and notice of protest of this
Note and the other Letter of Credit Note, and all other notices in
connection with the delivery, acceptance, performance or enforcement of the
payment of this Note and the other Letter of Credit Note, (b) expressly
consent to all extensions of time, renewals, postponements of time of
payment of this Note and the other Letter of Credit Note or other
modifications from time to time, without notice, consent or consideration
to any of the foregoing, (c) expressly agree to any substitution, exchange,
addition or release of any of the other Loan Documents or the addition or
release of any party or person primarily or secondarily liable hereon,
(d) expressly agree that the Agent and/or the Lender or Other Lender shall
not be required first to institute any suit, or to exhaust their remedies
against the Makers or any other person or party to become liable hereunder
or against the other Loan Documents in order to enforce the payment of this
Note and the other Letter of Credit Note, and (e) expressly agree that,
notwithstanding the occurrence of any of the foregoing, they shall be and
remain, jointly and severally, directly and primarily liable for all sums
due under this Note, the other Letter of Credit Note and the other Loan
Documents subject to the terms and conditions hereof and thereof.
6.13 Neither the Agent or the Lender or Other Lender shall be
deemed, by any act of omission or commission, to have waived any of their
rights or remedies hereunder unless such waiver is in writing given in
accordance with the terms of the Credit Agreement, and then only to the
extent specifically set forth in the writing. A waiver with reference to
one event shall not be construed as continuing or as a bar to or waiver of
any right or remedy as to a subsequent event.
6.14 Neither this Note or the other Letter of Credit Note nor any
provision hereof or thereof may be changed or terminated orally, but only
by an instrument in writing signed by the party against whom enforcement of
the change or termination is sought.
6.15 Failure to accelerate this Note or the other Letter of Credit
Note after an Event of Default, or the acceptance of a past due
installment, shall not be construed as a novation of the contract or a
waiver of the right of the Agent or the Lender or Other Lender to
thereafter insist upon strict compliance with the terms of this Note and
the other Letter of Credit Note without previous notice of such intention
being given to the Makers.
6.16 Notwithstanding anything to the contrary in this Note, the
other Letter of Credit Note, the Credit Agreement, the Security Documents
or other Loan Documents, the maximum liability of any Maker other than
Arvida/JMB Partners, L.P. (herein a "Maker Subsidiary" or "Maker
Affiliate") for the Obligations created, evidenced and secured thereby and
hereby shall not exceed the maximum amount, as such maximum amount shall be
determined by a court of competent jurisdiction of any such Maker
Subsidiary's or Maker Affiliate's liability therefor which may be incurred
without rendering the Obligations, as they relate to such Maker Subsidiary
or Maker Affiliate, voidable as a fraudulent conveyance or fraudulent
transfer under the Bankruptcy Code or under any other present or future
federal or state laws or statutes relating to bankruptcy, insolvency,
assignment for the benefit of creditors or other relief for debtors,
including, without limitation, the Uniform Fraudulent Transfer Act or the
Uniform Fraudulent Conveyance Act, as in effect in any jurisdiction wherein
any such Maker Subsidiary's or Maker Affiliate's Solvency (as defined in
the Credit Agreement) is subject to determination. For purposes of
determining such liability of any Maker Subsidiary or Maker Affiliate, due
consideration shall be given to the benefits received, directly or
indirectly, by such Maker Subsidiary or Maker Affiliate from the Loans (as
defined in the Credit Agreement) made pursuant to the Commitments (as
defined in the Credit Agreement).
6.17 The section headings of this Note and the other Letter of
Credit Note are for reference purposes only and are to be given no effect
in the construction or interpretation of this Note or the other Letter of
Credit Note.
THE MAKERS AND THE LENDER BY ITS ACCEPTANCE HEREOF HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS NOTE OR ANY OTHER LETTER OF CREDIT NOTE OR
THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT CONTEMPLATED TO BE EXECUTED
IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY MAKERS, THE AGENT,
THE LENDER OR ANY OTHER LENDER.
SIGNATURE PAGES FOLLOW
IN WITNESS WHEREOF, the undersigned Makers have executed this Note on
the date set forth above.
MAKERS:
ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
THE AOK GROUP,
a Florida general partnership
By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its
sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS,
a Florida general partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
METRODRAMA JOINT VENTURE,
a Florida general partnership
By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its
sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS, a
Florida general partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
ARVIDA/JMB PARTNERS,
a Florida general partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
ARVIDA GRAND BAY LIMITED PARTNERSHIP-IV,
a Delaware limited partnership
By: ARVIDA GRAND BAY MANAGERS, INC.,
a Delaware corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
GULF AND PACIFIC COMMUNICATIONS
LIMITED PARTNERSHIP,
a Delaware limited partnership
By: PACIFIC PROPERTIES, INC.,
an Illinois corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
WESTON HILLS COUNTRY CLUB LIMITED
PARTNERSHIP,
a Delaware limited partnership
By: WHCC, INC.,
an Illinois corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
SOUTHEAST FLORIDA HOLDINGS, INC.,
an Illinois corporation
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
EXHIBIT "B" TO BIFURCATION OF NOTE AGREEMENT
THE TAX HAS BEEN PAID AND THE PROPER DOCUMENTARY STAMPS HAVE BEEN AFFIXED
TO THE MORTGAGE AND SECURITY AGREEMENT SECURING THIS PROMISSORY NOTE. NON-
RECURRING INTANGIBLE TAXES SHALL BE PAID AT THE TIME OF EACH ADVANCE, ON
SUCH ADVANCE.
DEMAND NOTE
LETTER OF CREDIT LINE
$1,920,000 Effective Date: September 1, 1998
FOR VALUE RECEIVED, the undersigned, Arvida/JMB Partners, L.P., a
Delaware limited partnership, Arvida/JMB Partners, a Florida general
partnership, Arvida Grand Bay Limited Partnership IV, a Delaware limited
partnership, The AOK Group, a Florida general partnership, Metrodrama Joint
Venture, a Florida general partnership, Southeast Florida Holdings, Inc.,
an Illinois corporation, Gulf and Pacific Communications Limited
Partnership, a Delaware limited partnership, and Weston Hills Country Club
Limited Partnership, a Delaware limited partnership, all having an office
at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
collectively referred to as the "Makers"), jointly and severally promise to
pay to the order of First Union National Bank, a national banking
association, its successors or assigns (the "Lender"), the principal sum of
ONE MILLION NINE HUNDRED TWENTY THOUSAND DOLLARS ($1,920,000), or the
Lender's Actual Share of all sums as may be advanced under the Letter of
Credit Commitment, pursuant to and in accordance with the Credit Agreement,
together with interest on the principal balance of this Note outstanding
from time to time, as same shall accrue thereon in accordance with the
terms hereof, but not to exceed the maximum non-usurious rate permitted by
law.
10 Definitions. Capitalized terms not otherwise defined herein shall
have the meanings ascribed to such terms in the Credit Agreement. In
addition to capitalized terms defined elsewhere herein, the following
capitalized terms shall have the meanings ascribed to them as follows:
1.1 "Actual Share" means the percentage interest of the Lender in
the Advance made pursuant to the Letter of Credit Commitment.
1.2 "Agent" means First Union National Bank, a national banking
association.
1.3 "Business Banking Day" means a day that is not a Saturday, a
Sunday, or a day on which the Agent is closed pursuant to authorization or
requirement of law.
1.4 "Committed Share" means the percentage interest of the Lender
in the Letter of Credit Commitment.
1.5 "Credit Agreement" means the Credit Agreement dated July 31,
1997, between Lender and the Borrower (among others), as amended, of even
date herewith, as the same may be amended, supplemented, restated, replaced
or otherwise modified from time to time.
1.6 "Default Rate" means the lesser of: (i) five percent (5%) above
the Note Prime Rate and (ii) the maximum non-usurious rate permitted under
applicable law, provided the maximum interest rate shall never be more then
twenty-four and 99/100 percent (24.99%).
1.7 "Event of Default" has the meaning ascribed to such term in the
Credit Agreement.
1.8 "Letter of Credit Commitment" has the meaning ascribed to such
term in the Credit Agreement.
1.9 "Letter of Credit Notes" means this Note and the other Letter
of Credit Note executed by the Makers in favor of the Other Lender, each
dated of even date herewith, in the aggregate amount of the Letter of
Credit Commitment, as same may be amended, supplemented, renewed, restated,
replaced or otherwise modified from time to time.
1.10 "Loan Documents" has the meaning described to such term in the
Credit Agreement.
1.11 "Note" means this Note, in the amount of the Lender's Committed
Share of the Letter of Credit Commitment, as same maybe amended,
supplemented, restated, replaced or otherwise modified from time to time.
1.12 "Other Lender" means Bank United, a federal savings bank, also
being a "Lender".
1.13 "Prime Rate" means the annual rate of interest announced from
time to time by First Union National Bank, as its Prime Rate. The Prime
Rate is a reference rate for the information and use of the Agent in
establishing the actual rates to be charged to borrowers and is not
necessarily t he lowest rate charged by the Agent or the Lender. Should
First Union National Bank not publish a Prime Rate at any time during the
term of this Note, the Agent, in its reasonable discretion, may choose a
substitute Prime Rate. The rate of interest shall change automatically and
immediately as of the date of any change in the Prime Rate without notice
to Borrower or any endorser, surety or guarantor, if any.
1.14 "Required Lenders" has the meaning ascribed to such term in the
Credit Agreement.
1.15 "Security Documents" has the meaning ascribed to such terms in
the Credit Agreement.
20 Payment of Interest and Principal.
2.1 The Maker shall pay to the Agent for the account of the Lender
and the Other Lender, the entire principal balance of all Advances
outstanding under the Letter of Credit Notes, together with all interest
accrued thereon, at the Prime Rate, not later than three (3) Business
Banking Days following receipt of demand therefor, from the Agent. The
failure of the Makers to make such payment at such time shall constitute an
Event of Default hereunder, under the other Letter of Credit Note, and
under the Credit Agreement, and thereafter interest shall accrue on the
entire principal balance outstanding under the Letter of Credit Notes, at
the Default Rate.
2.2 All payments of principal and interest under the Letter of
Credit Notes shall be made in lawful money of the United States which shall
be legal tender in payment of all debts, public and private, at the time of
payment.
2.3 All payments of principal and interest under the Letter of
Credit Notes shall be made in immediately available funds by 11:00 a.m.
(Ft. Lauderdale, Florida time) on a Business Banking Day, to the Agent for
the account of the Lenders, at the office of the Agent at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇,
or by wire to ABA #▇▇▇▇▇▇▇▇▇, Account No.465906 ▇▇▇▇▇▇▇, Reference
"Arvida," Attention: ▇▇▇▇ ▇▇▇▇▇▇, or at such other place as the Agent may
instruct. Any payments of principal or interest made after 11:00 a.m. (Ft.
Lauderdale, Florida time) shall be deemed to be payments made on the next
following Business Banking Day, for all purposes, hereof, including,
without limitation, the accrual of interest. Should any payment under the
Letter of Credit Notes become due and payable on a day other than a
Business Banking Day, the maturity thereof shall be extended to the next
succeeding Business Banking Day, and, in the case of any payment of
principal, interest shall be payable thereon as calculated pursuant hereto,
for each Business Banking Day such principal is outstanding (provided,
however, any payment of principal received on any Business Banking Day by
11:00 a.m. (Ft. Lauderdale, Florida time) shall not be deemed to be
outstanding on such Business Banking Day).
30 Collateral Security. This Note and the other Letter of Credit Note
are issued pursuant to the Credit Agreement. This Note and the other
Letter of Credit Note are secured by the Credit Agreement, the Security
Documents and the other Loan Documents. Reference is hereby made to the
Credit Agreement, the Security Documents and the other Loan Documents for a
description of Events of Default and rights of acceleration of the Maturity
Date upon the occurrence of an Event of Default. It is expressly agreed
that all of the covenants, conditions and agreements contained in the
Credit Agreement, the Security Documents and the other Loan Documents are
made a part of this Note and the other Letter of Credit Note. The Letter
of Credit Commitment expires July 31, 2001, at which time, the Makers shall
either (i) cause all underlying Letters of Credit to be returned and
cancelled or (ii) if not previously paid to the Agent, pay to the Agent
Cash Collateral (as defined in the Credit Agreement) in an amount equal to
the maximum amount of all outstanding Letters of Credit.
40 Events of Default. The remedies of the Agent, the Lender and Other
Lender, as provided herein, or in the Security Documents, the other Loan
Documents or Credit Agreement shall be cumulative and concurrent and may be
pursued singularly, successively or together, by the Agent in accordance
with the terms of the Credit Agreement, and may be exercised as often as
the occasion therefor shall arise. Notwithstanding anything herein
seemingly to the contrary, neither the Agent, the Lender or the Other
Lender shall take any action, including, without limitation, in connection
with the enforcement of any of their rights under the Letter of Credit
Notes, the Credit Agreement or other Loan Documents, unless such action is
consistent with the action taken by the Agent, the Lender or the Other
Lender, as the case may be, with respect to all of the Letter of Credit
Notes and in accordance with the provisions of the Credit Agreement.
50 Usury. Nothing herein contained, nor in any instrument or
transaction related hereto, shall be construed or so operate as to require
the Makers, or any person liable for the payment of the Loan evidenced by
the Letter of Credit Notes, to pay interest in an amount or at a rate
greater than the highest non-usurious rate permissible under applicable law
as amended from time to time. Should any interest or other charges paid by
the Makers, or any party liable for the payment of the Loan evidenced by
the Letter of Credit Notes, result in the computation or earning of
interest in excess of the highest non-usurious rate permissible under
applicable law, then any and all such excess shall be and the same is
hereby waived by the Agent, the Lender and the Other Lender, and all such
excess shall be paid by the Agent, the Lender or the Other Lender, as the
case shall be, to the Makers or to any party liable for the payment of the
Loan evidenced by the Letter of Credit Notes, it being the intent of the
parties hereto that under no circumstances shall the Makers or any party
liable for the payment of the Loan hereunder, be required to pay interest
in excess of the highest non-usurious rate permissible under applicable law
as amended from time to time. By operation of Section 687.12, Florida
Statutes (1996), the interest rate charged under the Note and the other
Letter of Credit Notes is authorized by Chapters 658, 665 and 687, Florida
Statutes (1996) and applicable federal law.
60 Waivers/Miscellaneous Matters.
6.1 The Letter of Credit Notes are to be construed according to the
applicable laws of the State of Florida and the United States of America.
Any action brought upon the enforcement of this Note and the other Letter
of Credit Note is hereby authorized to be instituted and prosecuted in
Broward County, Florida, or at the United States District Court for the
Southern District of Florida, at the election of the Agent, subject to and
in accordance with the terms of the Credit Agreement.
6.2 The Letter of Credit Notes may not be changed orally, but only
by an agreement in writing, signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
6.3 Each maker, endorser and guarantor or any person, firm or
corporation becoming liable under this Note and the other Letter of Credit
Note hereby consents to any extension or renewal of this Note and the other
Letter of Credit Note or any part thereof, without notice, and agrees that
it will remain liable under this Note and the other Letter of Credit Note
during any extension or renewal thereof, until the indebtedness evidenced
hereby and thereby is paid in full.
6.4 Notwithstanding anything to the contrary herein or in the
Credit Agreement, the Security Documents or other Loan Documents (or any
instruments or certificates executed or delivered in connection therewith
at any time or times), neither any present or future constituent partner
(as hereinafter defined) in, or agent of, any of the Makers, nor any
shareholder, member, officer, manager, director, employee, trustee,
beneficiary or agent of any corporation or other entity that is or becomes
a constituent partner in any of the Makers shall be personally liable,
directly or indirectly (and neither the Agent, the Lender or the Other
Lender shall have any recourse against any property or assets of any such
constituent partner or other person or entity) under or in connection with
the Letter of Credit Notes, the Credit Agreement, the Security Documents,
the other Loan Documents, the Loans, or any instruments securing or
otherwise executed in connection therewith, or any certificate delivered in
connection therewith, or any amendments or modifications to any of the
foregoing made at any time or times, heretofore or hereafter (such persons
as described in this sentence being herein collectively referred to as
"Non-Recourse Persons"), provided, however, Non-Recourse Persons shall not
include any Maker or any Subsidiary of a Maker that would otherwise be
liable as a general partner in a Maker. The recourse of the Agent, the
Lender, the Other Lender and their successors and assignees under or in
connection with the Letter of Credit Notes, the Security Documents, the
Credit Agreement, the other Loan Documents, the Loans and such instruments
and certificates, and any such amendments or modifications, shall be
limited to the assets of the Makers, and the Agent, the Lender, the Other
Lender and each of their successors and assignees waive and do hereby waive
any such personal liability against any such Non-Recourse Persons. For the
purposes of the Letter of Credit Notes, the Security Documents, the Credit
Agreement and each other Loan Document and any such instruments and
certificates and any such amendments or modifications, neither the negative
capital account of a constituent partner in any Maker, nor any obligation
of any constituent partner in any Maker to restore a negative capital
account or to advance or contribute capital to any Maker or any other
constituent partner in any Maker shall be deemed to be the property or the
asset of any Maker or any such other constituent partner (and neither the
Agent, the Lender or the Other Lender nor any of their successors or
assignees shall have any right to collect, enforce or proceed against or
with respect to any such negative capital account or partner's obligation
to restore, advance or contribute). As used in this section, the term
"constituent partner" means any direct partner in any Maker, and any person
or entity that is a partner in any partnership that, directly or indirectly
through one or more other partnerships, is a partner in any Maker.
6.5 Time is of the essence hereof with regard to the performance
and observance of all of the terms, provisions and conditions hereof on the
part of the Makers to be observed and/or performed.
6.6 All sums received by the Agent for application to this Note and
the other Letter of Credit Note shall be applied by the Agent in the manner
set forth in Section 2.8 of the Credit Agreement.
6.7 The Makers are strictly liable for and hereby agree to pay or
reimburse the Agent (but not the Other Lender) for, and hold it harmless
from and against all of its reasonable third party costs and expenses
incurred in connection with the collection or enforcement of, or the
preservation of any rights under, this Note, the other Letter of Credit
Note, the Credit Agreement or other Loan Documents, including, without
limitation, the reasonable fees and disbursements of counsel for the Agent,
including attorneys' fees out of court, in trial, on appeal, in bankruptcy
proceedings or otherwise. The Makers shall pay all such amounts in
accordance with the terms of the Credit Agreement, and until repaid, such
sums shall bear interest at the Default Rate.
6.8 All notices and like communications required or permitted to be
given pursuant to the provisions of this Note and the other Letter of
Credit Note shall be given in accordance with the notice provisions of
Section 11.4 of the Credit Agreement.
6.9 As used herein, the terms "Makers," "Agent," "Lender" and
"Other Lender" shall be deemed to include their respective successors and
assigns.
6.10 In the event any one or more of the provisions of this Note or
the other Letter of Credit Note shall for any reasons be held to be
invalid, illegal, or unenforceable, in whole or in part or in any respect,
or in the event one or more of the provisions of this Note or the other
Letter of Credit Note operates or would prospectively operate to invalidate
this Note or the other Letter of Credit Note, then in any of those events,
only such provision or provisions shall be deemed null and void and shall
not effect any other provision of this Note or the other Letter of Credit
Note. The remaining provisions of this Note and the other Letter of Credit
Note shall remain operative and in full force and effect and in shall no
way be affected, prejudiced or disturbed thereby. In the event any
provisions of this Note or the other Letter of Credit Note are inconsistent
with any provisions of the Credit Agreement, the Security Documents or
other Loan Documents, or any other agreements or documents executed in
connection with the Letter of Credit Notes, the Letter of Credit Notes
shall control.
6.11 It is expressly understood and agreed that neither the Agent,
the Lender or the Other Lender shall ever be construed for any purposes, to
be the partner, joint venturer, principal or associate of the Makers or any
of them or any person or party claiming by, through or under the Makers or
any of them in the conduct of their respective businesses.
6.12 The undersigned Makers and any endorsers, sureties, guarantors
and all others who are or may become liable for the payment hereof
(a) severally waive presentment for payment, demand, notice of demand,
notice of nonpayment or dishonor, protest and notice of protest of this
Note and the other Letter of Credit Note, and all other notices in
connection with the delivery, acceptance, performance or enforcement of the
payment of this Note and the other Letter of Credit Note, (b) expressly
consent to all extensions of time, renewals, postponements of time of
payment of this Note and the other Letter of Credit Note or other
modifications from time to time, without notice, consent or consideration
to any of the foregoing, (c) expressly agree to any substitution, exchange,
addition or release of any of the other Loan Documents or the addition or
release of any party or person primarily or secondarily liable hereon,
(d) expressly agree that the Agent and/or the Lender or Other Lender shall
not be required first to institute any suit, or to exhaust their remedies
against the Makers or any other person or party to become liable hereunder
or against the other Loan Documents in order to enforce the payment of this
Note and the other Letter of Credit Note, and (e) expressly agree that,
notwithstanding the occurrence of any of the foregoing, they shall be and
remain, jointly and severally, directly and primarily liable for all sums
due under this Note, the other Letter of Credit Note and the other Loan
Documents subject to the terms and conditions hereof and thereof.
6.13 Neither the Agent or the Lender or Other Lender shall be
deemed, by any act of omission or commission, to have waived any of their
rights or remedies hereunder unless such waiver is in writing given in
accordance with the terms of the Credit Agreement, and then only to the
extent specifically set forth in the writing. A waiver with reference to
one event shall not be construed as continuing or as a bar to or waiver of
any right or remedy as to a subsequent event.
6.14 Neither this Note or the other Letter of Credit Note nor any
provision hereof or thereof may be changed or terminated orally, but only
by an instrument in writing signed by the party against whom enforcement of
the change or termination is sought.
6.15 Failure to accelerate this Note or the other Letter of Credit
Note after an Event of Default, or the acceptance of a past due
installment, shall not be construed as a novation of the contract or a
waiver of the right of the Agent or the Lender or Other Lender to
thereafter insist upon strict compliance with the terms of this Note and
the other Letter of Credit Note without previous notice of such intention
being given to the Makers.
6.16 Notwithstanding anything to the contrary in this Note, the
other Letter of Credit Note, the Credit Agreement, the Security Documents
or other Loan Documents, the maximum liability of any Maker other than
Arvida/JMB Partners, L.P. (herein a "Maker Subsidiary" or "Maker
Affiliate") for the Obligations created, evidenced and secured thereby and
hereby shall not exceed the maximum amount, as such maximum amount shall be
determined by a court of competent jurisdiction of any such Maker
Subsidiary's or Maker Affiliate's liability therefor which may be incurred
without rendering the Obligations, as they relate to such Maker Subsidiary
or Maker Affiliate, voidable as a fraudulent conveyance or fraudulent
transfer under the Bankruptcy Code or under any other present or future
federal or state laws or statutes relating to bankruptcy, insolvency,
assignment for the benefit of creditors or other relief for debtors,
including, without limitation, the Uniform Fraudulent Transfer Act or the
Uniform Fraudulent Conveyance Act, as in effect in any jurisdiction wherein
any such Maker Subsidiary's or Maker Affiliate's Solvency (as defined in
the Credit Agreement) is subject to determination. For purposes of
determining such liability of any Maker Subsidiary or Maker Affiliate, due
consideration shall be given to the benefits received, directly or
indirectly, by such Maker Subsidiary or Maker Affiliate from the Loans (as
defined in the Credit Agreement) made pursuant to the Commitments (as
defined in the Credit Agreement).
6.17 The section headings of this Note and the other Letter of
Credit Note are for reference purposes only and are to be given no effect
in the construction or interpretation of this Note or the other Letter of
Credit Note.
THE MAKERS AND THE LENDER BY ITS ACCEPTANCE HEREOF HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS NOTE OR ANY OTHER LETTER OF CREDIT NOTE OR
THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT CONTEMPLATED TO BE EXECUTED
IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY MAKERS, THE AGENT,
THE LENDER OR ANY OTHER LENDER.
SIGNATURE PAGES FOLLOW
IN WITNESS WHEREOF, the undersigned Makers have executed this Note on
the date set forth above.
MAKERS:
ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
THE AOK GROUP,
a Florida general partnership
By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its
sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS,
a Florida general partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
METRODRAMA JOINT VENTURE,
a Florida general partnership
By: ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation, its
sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
By: ARVIDA/JMB PARTNERS, a
Florida general partnership,
a general partner
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
ARVIDA/JMB PARTNERS,
a Florida general partnership
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation,
a general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
ARVIDA GRAND BAY LIMITED PARTNERSHIP-IV,
a Delaware limited partnership
By: ARVIDA GRAND BAY MANAGERS, INC.,
a Delaware corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
GULF AND PACIFIC COMMUNICATIONS
LIMITED PARTNERSHIP,
a Delaware limited partnership
By: PACIFIC PROPERTIES, INC.,
an Illinois corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
WESTON HILLS COUNTRY CLUB LIMITED
PARTNERSHIP,
a Delaware limited partnership
By: WHCC, INC.,
an Illinois corporation,
its sole general partner
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
SOUTHEAST FLORIDA HOLDINGS, INC.,
an Illinois corporation
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
[CORPORATE SEAL]
