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THIS INSTRUMENT PREPARED BY
AND RECORD AND RETURN TO: EXHIBIT 10(k)(4)(a)(ii)
Xxxx X. Xxxxxxxx, Xx., Esq.
LeBoeuf, Xxxx, Xxxxxx & XxxXxx, L.L.P.
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000-0000
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AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS
FROM
XXXXX EQUITY, INC.
TO
FIRST UNION NATIONAL BANK,
AS AGENT
DATED AS OF DECEMBER 30, 1998
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AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS
THIS AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS (this "Amendment") is
made and executed as of this 30th day of December, 1998, from
XXXXX EQUITY, INC., a Florida corporation ("Assignor"), whose address is 0000
Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 Attention: X.X. Xxxxxx,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Assignee") for the
Lenders under and as defined in that certain Second Amended and Restated
Revolving Credit Loan Agreement of even date herewith (the "Loan Agreement")
which terms Assignor and Assignee, whenever hereinafter used will be construed
to refer to and include the heirs, legal representatives, executors,
administrators, successors and assigns of said parties. For purposes of notices
permitted or required to be given hereunder, Xxxxxxxx's mailing address is 000
Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attention:First Union
Capital Markets Group.
RECITALS:
A. Assignor is the grantor under that certain Xxxxxxx and
Restated Deed to Secure Debt, Assignment of Leases and Rents, and Security
Agreement given by Assignor to the grantees defined therein, as grantee, dated
December 29, 1997, and recorded in Official Records Book 9767, Page 002, of the
public records of DeKalb County, Georgia (the "Deed to Secure Debt"), which Deed
to Secure Debt secured that certain (i) Substitution Revolving Promissory Note
dated December 29, 1997 made by Assignor payable to the order of First Union
National Bank in the principal amount of $35,000,000; (ii) Substitution
Revolving Promissory Note dated December 29, 1997 made by Assignor payable to
the order of Xxxxxx Guaranty Trust Company of New York in the principal amount
of $15,000,000; (iii) Revolving Promissory Note dated December 29, 1997 made by
Assignor payable to the order of AmSouth Bank in the principal amount of
$25,000,000, and (iv) Revolving Promissory Note dated December 29, 1997 made by
Assignor payable to the order of Guaranty Federal Bank, F.S.B. in the principal
amount of $25,000,000 (collectively, the "Prior Notes"), encumbering certain
real property interests located in DeKalb County, Georgia as more particularly
described on attached Exhibit A (the "Premises").
B. To further secure the payment and performance of the Prior
Notes, Assignor agreed to execute and deliver to Assignee that certain
Assignment of Leases and Xxxxx dated as of December 29, 1997, which was recorded
in Official Records Book 9767, Page 045, of the public records of DeKalb County,
Georgia (the "Assignment"), which Assignment was assigned to Assignee pursuant
to that certain Assignment of Deed to
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Secure Debt and Related Loan Documents of even date herewith to be recorded in
the public records of DeKalb County, Georgia.
C. The Deed to Secure Debt has been modified and amended pursuant
to that certain Second Amended and Restated Deed to Secure Debt, Assignment of
Leases and Rents and Security Agreement of even date herewith, to be recorded in
the Public Records of DeKalb County, Georgia, to increase the Indebtedness
secured thereby to $150,000,000 evidenced by those certain: (i) Substitution
Revolving Promissory Note dated as of even date herewith made by Grantor payable
to the order of FUNB in the original principal amount of $45,000,000, (ii) the
Substitution Revolving Promissory Note dated as of even date herewith made by
Grantor payable to the order of AmSouth in the original principal amount of
$35,000,000, (iii) the Substitution Revolving Promissory Note dated as of even
date herewith made by Grantor payable to the order of GFB in the original
principal amount of $35,000,000, (iv) the Revolving Promissory Note dated as of
even date herewith made by Grantor payable to the order of Citizens in the
original principal amount of $20,000,000, and (v) the Revolving Promissory Note
dated as of even date herewith made by Grantor payable to the order of Compass
in the original principal amount of $15,000,000 (collectively, the "Notes").
D. To further secure the payment, discharge and performance of
the Notes, and as a condition to Assignee's extension of credit to Assignor
pursuant to the Notes, Assignor has agreed to execute this Amendment for the
purposes set forth herein.
X. Xxxxxxxx and Assignee desire to amend the Assignment to set
forth that the loan evidenced by the Prior Notes has been modified, amended, and
extended as evidenced by the Notes defined above.
NOW, THEREFORE, to further secure the payment, discharge and
performance of the indebtedness of Assignor to Assignee evidenced by the Notes
and in consideration of Assignee's acceptance of the Notes and in further
consideration of the sum of Ten Dollars ($10.00) paid by Assignee to Assignor,
receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee
hereby agree as follows:
1. The recitals hereinabove are true and correct and are
incorporated herein by reference.
2. The Assignment is hereby amended to secure the payment,
discharge, and performance of the Notes, and all references in the Assignment to
the "Notes" are hereinafter deemed to refer to the "Notes" of even date herewith
as defined herein.
3. All references in the Assignment to the "Loan Agreement" shall
be deemed to refer to that certain Second Amended and Restated Revolving Credit
Loan Agreement of even date herewith.
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4. The term "Assignee" as defined in the Assignment, is hereby
deemed to refer to First Union National Bank, as Agent for the Lenders, which
Lenders are defined in the Loan Agreement.
5. Except as herein expressly amended, the Assignment is hereby
ratified and confirmed and shall otherwise remain unchanged and in full force
and effect.
6. All initial capitalized defined terms not defined herein shall
have the meanings assigned to them in the Assignment.
7. This Amendment may be executed in separate counterpart
signature pages, and all such counterparts taken together shall constitute but
one and the same instrument.
8. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ASSIGNOR, THE ASSIGNEE, AND THE LENDERS, THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH
ACKNOWLEDGE AND AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE BASED UPON OR
ARISING OUT OF THIS AMENDMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE
PARTIES RELATED THERETO. NONE OF THE PARTIES SHALL SEEK TO CONSOLIDATE ANY SUCH
ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE
PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES, ARE MADE
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL INDUCEMENT
FOR THE LENDERS TO MAKE THE LOAN TO ASSIGNOR, AND SHALL BE SUBJECT TO NO
EXCEPTIONS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Assignor and Assignee have executed this Amendment
under seal the day and year first above written.
Signed, sealed and delivered in ASSIGNOR:
the presence of:
XXXXX EQUITY, INC.,
a Florida corporation
/s/ Xxxx X. Xxxxxxxx, Xx. By: /s/ X. Xxxxx Xxxxxxx
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Unofficial Witness: Xxxx X. Xxxxxxxx, Xx. Name: X. Xxxxx Xxxxxxx
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Title: Treasurer
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Attest: /s/ X. Xxxxxxxx Xxxxxxx
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Name: X. Xxxxxxxx Xxxxxxx
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/s/ Xxx Xxxxx Title:
------------------------------------------ ------------ Secretary
Notary Public
[AFFIX CORPORATE SEAL]
My Commission Expires: Feb. 1, 1999
Notary Public, Camden County, Georgia
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[Notary Seal]
ASSIGNEE
FIRST UNION NATIONAL BANK,
a national association
/s/ Xxxx X. Xxxxxxxx, Xx. By: /s/ Xxxxxx X. Xxxxxxxx
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Unofficial Witness: Xxxx X. Xxxxxxxx, Xx. Name: Xxxxxx X. Xxxxxxxx
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Title: Vice President
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Attest: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
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/s/ Xxxxx Xxxxxxxx Title: Vice President
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Notary Public
[AFFIX CORPORATE SEAL]
My Commission Expires: September 3, 2000
Bonded Thru Notary Public Underwriters
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[Notary Seal]
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EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
