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EXHIBIT 10.19
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AMENDMENT NO. 3
TO
MASTER ASSIGNMENT AGREEMENT
AMONG
XXXXXXXX CAPITAL CORPORATION,
XXXXXXX XXXXX MORTGAGE CAPITAL INC.
AND
XXXXXXX XXXXX CAPITAL SERVICES, INC.
DATED AS OF FEBRUARY 25, 1999
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THIS AMENDMENT No. 3 (the "Amendment") is made as of February 25, 1999
by and among XXXXXXXX CAPITAL CORPORATION (the "Assignor"), XXXXXXX XXXXX
MORTGAGE CAPITAL INC. ("MLMCI") and XXXXXXX XXXXX CAPITAL SERVICES, INC.
("MLCS"). By executing this Amendment, the Assignor, MLMCI and MLCS agree to be
bound by the terms of the Agreement as amended hereby.
WITNESSETH
WHEREAS, the parties entered into a Master Assignment Agreement, dated
as of August 27, 1998 (the "Agreement"), Amendment No. 1, dated as of October
23, 1998 ("Amendment No. 1") and Amendment No. 2, dated as of January 27, 1999
("Amendment No. 2");
WHEREAS, Assignor, by virtue of having breached its covenant set forth
in Section 9(i) of the Agreement, is in Default under the Agreement, and MLMCI
and MLCS have advised Assignor that an Event of Default has occurred and such
Event of Default is continuing;
WHEREAS, pursuant to Amendment No. 2, MLMCI and MLCS have granted
Assignor's request that MLMCI and MLCS refrain from exercising their remedies
with respect to the aforementioned Event of Default until 5:00 p.m., New York
City time February 26, 1999 and Assignor has requested that MLMCI and MLCS
refrain from exercising their remedies with respect to the aforementioned Event
of Default until 5:00 p.m., New York City time, March 25, 1999 (the period from
the date of such Default until such time on March 25, 1999, being herein
referred to as the "Forbearance Period");
WHEREAS, Assignor has requested an extension of the Maturity Date, as
set forth in the Note;
WHEREAS, in order to effectuate the foregoing, the parties desire to
amend the Agreement in the manner provided herein;
NOW, THEREFORE, in consideration of the foregoing and of the covenants
and agreements hereinafter set forth and of other good and valuable
consideration (the receipt and sufficiency of which is hereby acknowledged),
Assignor, MLMCI and MLCS agree as follows:
SECTION 1. DEFINITIONS
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned in the Agreement. Capitalized terms used in the Agreement
whose definitions are modified in this Amendment shall, for all purposes of the
Agreement, be deemed to have such modified definitions.
SECTION 2. THE NOTE; FINANCING STATEMENTS
(a) The Note and all obligations of Assignor thereunder is
ratified and confirmed and all references to the Agreement therein shall be
deemed to mean the Agreement as amended hereby.
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(b) The parties confirm that all references to the Agreement and
the defined terms used therein in any financing statement of record that names
either MLMCI or MLCS as the secured party and Assignor as the debtor shall be
deemed to be the Agreement as amended hereby.
SECTION 3. AMENDMENT TO PREAMBLE
The second WHEREAS clause of the preamble to the Agreement is hereby
amended by replacing the following:
$35,000,000
with the following:
$8,005,918.35.
SECTION 4. EXTENSION OF MATURITY DATE
MLMCI and MLCS hereby agree to extend the Maturity Date, as set forth
in the Note, to March 25, 1999; provided that notwithstanding anything
contained herein or in the Note to the contrary the Maturity Date shall be
accelerated to the date on which Assignor makes any payment to any Senior
Lender, as such term is defined in the Subordinated Loan Agreement, dated as of
November 13, 1998 between Xxxxxxxx Capital Corporation and Lend Lease
Investments Holdings, Inc., of all or a substantial portion of any amounts
outstanding as of the date hereof under any lending arrangements with such
Senior Lender; provided further that, for purposes of this Amendment and the
amended Agreement, "substantial portion" shall refer to an amount equal to or
greater than 20%.
SECTION 5. FORBEARANCE
(a) Assignor is in Default with respect to the Book Net Worth
covenant set forth in Section 9(i) of the Agreement, MLMCI and MLCS have
advised Assignor of such Event of Default and such Event of Default is
continuing. MLMCI and MLCS agree to refrain from exercising their remedies with
respect to such Event of Default during the Forbearance Period so long as
Assignor maintains a Book Net Worth of $50,000,000 and $5,000,000 of
unencumbered cash, and no other Default exists under the Agreement.
(b) Assignor hereby covenants and agrees to maintain a minimum
Book Net Worth during the Forbearance Period of $50,000,000 and to maintain
$5,000,000 of unencumbered cash.
(c) Assignor hereby represents and warrants that the existence
of all lending arrangements have been disclosed to MLMCI and MLCS.
(d) Assignor hereby covenants and agrees to repay the Loan in its
entirety upon or prior to any payment to any Senior Lender of all or a
substantial portion of any amounts outstanding as of the date hereof under any
lending arrangements with such Senior Lender;
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provided that, for purposes of this Amendment and the amended Agreement,
"substantial portion" shall refer to an amount equal to or greater than 50%.
(e) The forbearance granted hereby does not extend to any other
Default or Event of Default that has occurred or may occur at any time in the
future (including, without limitation, any event of default that occurs during
the Forbearance Period). MLMCI and MLCS hereby advise Assignor that, other than
expressly provided herein, neither MLMCI nor MLCS waives any Default or Event
of Default which may exist, and that the current non-exercise of rights,
remedies, powers and privileges by MLMCI and MLCS under the Loan Documents and
applicable law with respect to such Defaults or Events of Defaults, if any,
shall not be, and shall not be construed as, a waiver thereof, and MLMCI and
MLCS reserve their rights (i) fully to invoke any and all such rights,
remedies, powers and privileges under the Loan Documents and applicable law at
any time any of them deems appropriate in such respect of any Defaults or
Events of Default that may exist, (ii) to refuse to make available any further
extensions of credit except in strict accordance with the terms of the Loan
Documents and (iii) to require that all Loans bear interest at the rates
specified in the Agreement. Nothing in this Amendment, and no extension of
credit made by MLMCI or MLCS on or after the date hereof, shall be construed as
an acknowledgment or determination by either MLMCI or MLCS that no Default or
Event of Default has occurred or is continuing.
SECTION 6. TERMINATION OF AGREEMENT
Notwithstanding Section 13(g) of the Agreement, the definition of
Maturity Date or any other provision of the Agreement to the contrary, the
Agreement as amended hereby shall terminate when the Obligations thereunder
have been paid in full pursuant to the terms of the Agreement as so amended
(which terms shall include the due date and any other terms set forth in any
Confirmation Statement relating to a Loan). Such termination shall not require
the written request of Assignor.
SECTION 7. NO REQUIREMENT TO LEND
The parties confirm that all Loans under the Agreement are at the sole
and exclusive option of MLMCI and MLMCI is not now, and has never been, under
any obligation to make any Loan (including future Loans) under the Agreement.
SECTION 8. EXPENSES
The expenses of the parties in connection with this Amendment
(including, without limitation, the fees and expenses of counsel incurred in
connection with the preparation of this Amendment) shall be paid by Assignor.
SECTION 9. GOVERNING LAW; SEVERABILITY
This Amendment shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and entirely
performed therein. Each provision of this Amendment shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Amendment shall be prohibited by or be invalid
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under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Amendment.
SECTION 10. INTERPRETATION
The provisions of the Agreement shall be read so as to give effect to
the provisions of this Amendment.
SECTION 11. COUNTERPARTS
This Amendment may be executed in any number of counterparts, each of
which counterparts shall be deemed to be an original, and all such counterparts
shall constitute but one and the same instrument.
SECTION 12. RATIFICATION AND CONFIRMATION
As amended by this Amendment, the Agreement is hereby in all respects
ratified and confirmed, and the Agreement as amended by this Amendment shall be
read, taken and construed as one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
XXXXXXXX CAPITAL CORPORATION
By:
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Name:
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Title:
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XXXXXXX XXXXX MORTGAGE CAPITAL INC.
By:
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Name:
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Title:
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XXXXXXX XXXXX CAPITAL SERVICES, INC.
By:
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Name:
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Title:
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