EXHIBIT 10.28
-------------
NOTE MODIFICATION AGREEMENT
THIS NOTE MODIFICATION AGREEMENT (this "Agreement"), is made as of
the 31st day of December, 1998, by and between Amfac/JMB Hawaii, L.L.C., a
Hawaii limited liability company ("Borrower") and Xxxx Xxxxxx
Transportation Company, an Arizona corporation ("Holder").
W I T N E S S E T H :
WHEREAS, Borrower's predecessor-in-interest, Amfac/JMB Hawaii, Inc.,
a Hawaii corporation ("AHI"), was the maker of a Certain Replacement Note
#1 (the "Note"), dated as of January 1, 1998, in the original principal
amount of $99,594,751.09, and Borrower is the current obligor under such
Note; and,
WHEREAS, Holder is the current holder of the Note, which has an
outstanding balance of principal and accrued interest as of the date hereof
of $110,325,783.38; and,
WHEREAS, Holder also holds promissory notes evidencing significant
indebtedness (the "Northbrook Debt") to Holder by Northbrook Corporation, a
Delaware corporation ("Northbrook"); and,
WHEREAS, Northbrook may have significant potential contingent
obligations with respect to the right of holders of certain Certificate of
Land Appreciation Notes, due 2008, Class B (the "Class B Notes") issued by
the Borrower to cause the repurchase of such Class B Notes by Amfac/JMB
Finance, Inc., an Illinois corporation ("AJF"), which obligations could
materially adversely impact Northbrook's ability to satisfy the Northbrook
Debt; and,
WHEREAS, Borrower has certain rights (among other things) to redeem
the Class B Notes in lieu of AJF, pursuant to the terms of a certain
Repurchase Agreement, dated as of March 14, 1989 (the "Repurchase
Agreement"), by and between AHI, as predecessor-in-interest to Borrower;
and,
WHEREAS, in contemporaneous transactions as of the date hereof,
Holder has sold to Northbrook a certain Revolving Credit Note, dated as of
February 27, 1998, in the original principal amount of $30,000,000.00, made
by AHI, as predecessor-in-interest to Borrower, in favor of Holder (the
"Revolving Note"), which Revolving Note, together with certain other
indebtedness of Borrower to Northbrook, Northbrook has immediately
contributed to the capital of Borrower (the "Northbrook Contributions");
and,
WHEREAS, Holder has agreed to defer the obligation of Borrower to pay
interest under the Note through December 31, 2001, in consideration of (i)
the Northbrook Contributions, (ii) Borrower agreeing to certain
modifications to the Note to the benefit of Holder as further set forth
herein, (iii) Borrower's commitment herein to exercise its rights under
Section 4 of the Repurchase Agreement with respect to the Class B Notes,
and (iv) Borrower's agreement herein to provide security in such form as is
acceptable to Holder (collectively, the "Security"), in order to provide
Holder with specific security for the repayment of the Note; and,
WHEREAS, the Note constitutes senior indebtedness for purposes of
that certain Indenture, dated as of March 14, 1989 (as the same may be
amended, supplemented or otherwise modified from time to time, the
"Indenture"), among Borrower (as successor-in-interest to AHI), certain of
Borrower's affiliates, and Continental Bank, National Association, as
trustee (together with any successor trustee thereunder, the "Trustee"),
which Indenture permits the provision of specific security by Borrower in
order to secure payment of any portion of the senior indebtedness incurred
by Borrower pursuant thereto; and,
WHEREAS, capitalized terms not defined herein shall have the meaning
attributed thereto in the Note.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby mutually acknowledged, the parties hereto
hereby agree as follows, effective as of the date hereof:
The second to last sentence of the first paragraph of the Note shall
be amended, effective January 1, 1998, by removing the parenthetical from
the proviso thereof. After such sentence, an additional sentence shall be
added as follows:
"Any installment of interest under this Note that is deferred by the
Lender on or after January 1, 1998, whether pursuant to the terms hereof or
otherwise, shall not be added to principal, but shall also bear interest
from the due date of such installment through the date of payment at the
Base Rate, plus 2% per annum."
The Events of Default specified under the Note shall be amended by
deleting the word "or," from the end of item (d) and adding items (e), (f)
and (g) thereto, as follows:
"(e) The Borrower has received a notice of default by the
Trustee (as defined below) under the Indenture (as defined below), which
default is not cured by the expiration of any applicable cure period
provided therefor in the Indenture;
(f) Holders of any COLA Units (as defined in the Indenture)
have instituted suit or otherwise brought any action or claim against the
Borrower or any of its affiliates respecting such COLA Units, which suit,
action or claim has not been dismissed, discharged, settled or otherwise
satisfied within sixty (60) days after the institution thereof, nor has
Borrower obtained a third party bond reasonably acceptable to the Lender to
cover the amount demanded by any such suit, action or claim; or,
(g) A default of Borrower has occurred and is continuing
(beyond any applicable cure period set forth therein) under any document or
instrument provided by Borrower to Lender as security for this Note."
3. The following sentence is hereby added to the third to last
paragraph of the Note:
" This Note, and the performance of all obligations and the payment
of all amounts payable hereunder, are hereby secured by any security
provided by Borrower in favor of Lender pursuant to the terms of that
certain Note Modification Agreement, dated as of December 31, 1998, made by
the Borrower in favor of the Lender."
4. Borrower hereby covenants and agrees that, on or prior to
August 31, 1999, Borrower shall provide Holder with such Security for the
Note in such amount and in such form or forms as Holder shall deem
acceptable, in Holder's sole and absolute discretion (provided that
Borrower shall not be required to provide Security that would violate any
existing obligations of the Borrower), and Borrower agrees to execute and
deliver such documents as Holder may reasonably require in order to
evidence the transactions contemplated hereby or in order to evidence and
perfect Holder's security interest therein. Borrower and Holder acknowledge
and agree that such security may be in the form of mortgages on real or
personal property, pledges of interests in corporations, partnerships or
limited liability companies or other securities, or pledges of other assets
as may be identified by Borrower and Holder. In the event that Borrower
fails to provide such Security in a manner acceptable to Holder on or
before August 31, 1999, Holder may thereafter declare all interest
previously deferred under this Agreement to be immediately due and payable,
upon written notice to Borrower.
5. Borrower hereby covenants and agrees, subject to provision for
working capital requirements, to exercise its right under Section 4 of the
Repurchase Agreement to redeem any and all of the Class B Notes that AJF
may from time to time be required to repurchase from each holder thereof as
further set forth in the Repurchase Agreement and in accordance with the
terms of such Class B Notes. To the extent that Borrower has insufficient
cash to satisfy its obligation under this paragraph 5, Borrower shall use
its best efforts to borrow sufficient funds from Northbrook, its affiliates
and/or third parties for such purpose (at rates and on terms that are
commercially reasonable considering the risk associated with such
financing).
6. In return for the consideration set forth in the recitals
hereof as further set forth in this Agreement, subject to paragraph 4
hereof, Holder hereby agrees that, so long as there is no Event of Default
(nor any default under the terms of this Agreement) which has occurred and
is continuing, Holder shall defer Borrower's obligation to pay, and shall
not demand payment of, any installment of interest under the Note that
would otherwise become due and payable prior to December 31, 2001
(collectively, the "Deferred Interest"). Without limiting any of Holder's
rights or remedies under the Note (or respecting the Security, or otherwise
in the event of an Event of Default under the Note or this Agreement) all
such Deferred Interest (including interest thereon) shall be due and
payable on December 31, 2001, and, thereafter, installments of interest and
principal shall continue to be payable as set forth in the Note.
7. As amended by this Agreement, Borrower and Holder hereby ratify
and confirm the Note, which continues in full force and effect.
8. This Agreement may be executed in counterparts, each of which
shall constitute an original and when taken together shall constitute the
same instrument.
9. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision shall, if possible, be
reformed to the extent necessary to conform with applicable law or shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement. All other questions concerning the construction, validity
and interpretation of this Agreement shall be governed by the internal law
(and not the law of conflicts) of the State of Illinois, irrespective of
the fact that one or more of the parties may be organized under the laws of
any other jurisdiction or one or more of the parties now is or may
hereafter become a resident or domiciliary of any other state.
IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement as of the date first above written.
HOLDER:
XXXX XXXXXX TRANSPORTATION COMPANY,
an Arizona corporation
By:
------------------------------
Its:
------------------------
BORROWER:
AMFAC/JMB HAWAII, L.L.C.,
a Hawaii limited liability company
By:
------------------------------
Manager
