Exhibit 10(f)
Loan No. C-332344
FIRST AMENDMENT TO
ENVIRONMENTAL INDEMNITY AGREEMENT
THIS FIRST AMENDMENT TO ENVIRONMENTAL INDEMNITY AGREEMENT ("First
Amendment") is entered into as of December 6, 2001 by and between XXXXX EQUITY,
INC., a Florida corporation (herein called "Indemnitor" or "Borrower") and THE
NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY (herein called "Lender").
WITNESSETH
WHEREAS, Lender is the owner of (i) the Tranche A Promissory Note dated
as of December 16, 1996 executed by Borrower for the principal sum of ONE
HUNDRED MILLION FIVE HUNDRED THOUSAND DOLLARS, with final maturity no later than
January 2, 2007 and with interest as therein expressed and amended September 30,
1997, May 1, 1998, and which is being amended concurrently herewith; (ii) the
Tranche B Promissory Note dated as of December 16, 1996 executed by Borrower for
the principal sum of EIGHTY-NINE MILLION FIVE HUNDRED THOUSAND DOLLARS, with
final maturity no later than January 2, 2009 and with interest as therein
expressed, which was amended August 11, 2000 and which is being amended
concurrently herewith; (iii) the Tranche C Promissory Note dated as of September
2, 1999 executed by Borrower for the principal sum of FOURTEEN MILLION SEVEN
HUNDRED THOUSAND DOLLARS, with final maturity no later than January 1, 2007 and
with interest as therein expressed and which is being amended concurrently
herewith; and (iv) the Tranche D Promissory Note dated as of September 2, 1999
executed by Borrower for the principal sum of THIRTY MILLION THREE HUNDRED
THOUSAND DOLLARS, with final maturity no later than January 1, 2009 and with
interest as therein expressed and which is being amended concurrently herewith
(the Tranche A Promissory Note, the Tranche B Promissory Note, the Tranche C
Promissory Note, and the Tranche D Promissory Note, as such instruments may be
amended, restated, renewed and extended, are hereinafter collectively referred
to as the "Notes").
WHEREAS, the Notes are secured by office buildings and unimproved sites
located in various counties and states, evidenced by lien instruments of record
as follows:
(i) Master Lien Instrument Mortgage and Security Agreement dated December
19, 1996 securing the Notes; counterparts of which have been recorded
in (a) Official Records Book 8507, page 1224 of the public records of
Xxxxx County, Florida; (b) Official Records Book 1969, page 356 of the
public records of Xxxx County, Florida; (c) Official Records Book
5173, page 333 of the public records of
Orange County, Florida; (d) Official Records Book 9559, page
1088 of the public records of Pinellas County, Florida; (e) as
Instrument Number GG7415 in the public records of Shelby
County, Tennessee and that certain Deed of Trust and Security
Agreement dated August 18, 1997 recorded as Instrument Number
GV2951 in the public records of Shelby County, Tennessee; (f)
Greenville County, South Carolina; (g) El Paso County, Texas;
(h) Bexar County, Texas; and (i) Xxxxxx County, Texas; and
(ii) Master Lien Instrument Mortgage and Security Agreement dated September
2, 1999 securing the Notes, counterparts of which have been recorded
(a) in Official Records Book 9409, page 1320 of the public records of
Xxxxx County, Florida; (b) in Official Records Book R2295, page 932 of
the public records of Xxxx County, Florida; (c) in Official Records
Book 5838, page 71 of the public records of Orange County, Florida;
(d) in Official Records book 10670, page 1 of the public records of
Pinellas County, Florida; (e) as Instrument Number JS4479 in the
public records of Shelby County, Tennessee; (f) in the public records
of Greenville County, South Carolina; (g) El Paso County, Texas; and
(h) Xxxxxx County, Texas; and
(iii) IDB Deed of Trust and Security Agreement dated September 2, 1999
executed by The Industrial Development Board of the City of Memphis
and County of Shelby and Xxxxx Equity, Inc., securing the Notes,
recorded as Instrument Number JS4481 in the public records of Shelby
County, Tennessee, and Leasehold Deed of Trust and Security Agreement
dated September 2, 1999 executed by Xxxxx Equity, Inc., securing the
Notes, recorded as Instrument Number JS 4480 in the public records of
Shelby County, Tennessee.
The foregoing instruments in (i) and (ii) above, as they may have been amended
prior to the date hereof, are collectively referred to as the "Existing Lien
Instruments." The foregoing instruments in (iii) above, as they may have been
amended prior to the date hereof, are collectively referred to as the "IDB Lien
Instruments."
WHEREAS, the Loan Documents (as defined in the Existing Lien
Instruments and the IDB Lien Instruments) provide for release and substitution
of security; at the request of Borrower, Lender has released certain security
and has agreed to release additional security and to accept certain other
properties (individually and collectively, the "New Security") in substitution
therefor, all as more completely described in the recitals to the Master Loan
Agreement between Borrower and Lender of even date herewith (the "Master Loan
Agreement").
WHEREAS, concurrently with closing the releases and substitutions,
Borrower and Lender have agreed (1) to create the Master Loan Agreement
containing terms and conditions governing future releases and substitutions,
which will facilitate Borrower's ability to release and substitute property and
will comprehensively identify the property which is the collateral for the
Notes, (2) in the case of New Security located in counties not covered by the
Existing Lien Instruments, Borrower will grant Lender first liens on the New
Security by execution, delivery and recordation of new lien instruments ("New
Lien Instruments"), (3) in the case of New Security located in the same counties
as some of the existing security, Borrower will grant Lender first liens on the
New Security by spreading the liens and effects of the applicable Existing Lien
Instruments to the New Security, and (4) to consolidate the Existing Lien
Instruments recorded in the applicable counties and amend and restate them, to
amend and restate the IDB Lien Instruments, and amend certain of the other Loan
Documents to incorporate the aforedescribed changes, as necessary.
WHEREAS, Indemnitor previously executed that certain Environmental
Indemnity Agreement, dated as of September 2, 1999, in favor of Lender and other
Indemnified Parties identified therein (the "Indemnity Agreement") in connection
with the Tranche C Promissory Note and the Tranche D Promissory Note.
AND WHEREAS, Lender and Indemnitor desire to amend the Indemnity
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the recitals and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Lender and Indemnitor hereby agree as follows:
1. All references in the Indemnity Agreement to the "Indemnity
Agreement" shall be deemed to be references to the Indemnity Agreement, as
amended by this First Amendment. All initial capitalized words and terms used
herein and not otherwise defined herein shall have the meanings ascribed to such
words and terms as set forth in the Indemnity Agreement.
2. From and after the date hereof, "Property" shall mean and include,
in addition to property already included within said definition, the property
generally described on Schedule 1 attached hereto, which collectively
constitutes the New Security on which Borrower is granting Lender, concurrently
herewith, a first lien to further secure the Notes.
3. As amended herein, the Indemnity Agreement shall remain in full force
and effect and is hereby ratified and confirmed.
IN WITNESS WHEREOF, the undersigned Indemnitor and Lender have executed
this Indemnity Agreement as of the day and year first above written.
Indemnitor:
XXXXX EQUITY, INC., a Florida corporation
By: s/Xxxxxx Xxxxxxxxx
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Vice President
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(corporate seal)
(signatures continued on next page)
(signatures continued from previous page)
Lender:
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY, a Wisconsin corporation
By: Northwestern Investment Management
Company, LLC, a Delaware limited
liability company, its wholly-owned
affiliate and authorized representative
By: s/Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx,
Managing Director
Attest: s/Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx,
(corporate seal) Assistant Secretary
SCHEDULE 1
New Security for 12/2001 Transaction
Project Name/Location Street Address City, State, Zip County
Building Name
Pool A:
Atlanta - Perimeter Park DeKalb
Lincoln Parkway 0000 Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx 00000
Orlando - Xxxx Xxxx Seminole
Primera I 610 Crescent Executive Xxxxxxx, Xxxxxxx 00000
Primera II 615 Crescent Executive Xxxxxxx, Xxxxxxx 00000
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Pool B:
Atlanta - Gwinett Place Gwinnett
Clarkson 0000 Xxxxx Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
Duluth 00000 Xxxxx Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
Gwinett 0000 Xxxxx Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
Jacksonville, Florida - JTB Xxxxx
Windsor-Landstar 00000 Xxxxxx Xxxx Xxxxx Xxxxxxxxxxxx, Xxxxxxx 00000
Carlton 0000 Xxxx Xxxx, Xxx. 000 Xxxxxxxxxxxx, Xxxxxxx 00000
Xxxxxxx 0000 Xxxx Xxxx, Xxx.000 Xxxxxxxxxxxx, Xxxxxxx 00000
Deerwood Park 0000 Xxxxxxxxx Xxxxxxx Xxxxxxxxxxxx, Xxxxxxx 00000
Orlando University Orange
Dover 00000 Xxxxxxxxx Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
St. Petersburg, Florida Pinellas
Pasco 000 Xxxxxxxxx Xxxxxx Xxxxx Xxxxx Xx. Xxxxxxxxxx, Xxxxxxx 00000
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Pool C:
none
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Pool D:
Orlando University Orange
Rosemont 00000 Xxxxxxxxx Xxxx. Xxxxxxx, Xxxxxxx 00000
#173409
