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THIS INSTRUMENT PREPARED BY EXHIBIT 10(k)(6)(a)
AND RECORD AND RETURN TO:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
LeBoeuf, ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS
FROM
▇▇▇▇▇ 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
▇▇▇▇▇ EQUITY, INC., a Florida corporation ("Assignor"), whose address is ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇.▇. ▇▇▇▇▇▇,
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, ▇▇▇▇▇▇▇▇'s mailing address is ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention:
First Union Capital Markets Group.
RECITALS:
▇. ▇▇▇▇▇▇▇▇ is the mortgagor under that certain Mortgage,
Assignment of Leases and Rents and Security Agreement given by Assignor to the
mortgagees defined therein, dated December 29, 1997, and recorded in Official
Records Book 2979, Page 338, of the public records of Greenville County, South
Carolina (the "Mortgage"), which Mortgage secured that certain (i) Substitution
Revolving Promissory Note dated December 29, 1997 made by Assignor payable to
the order of First Union National Bank ("FUNB") 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 ▇▇▇▇▇▇ 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
("AmSouth") 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. ("GFB") in the principal amount of $25,000,000
(collectively, the "Prior Notes"), encumbering certain real property interests
located in Greenville County, South Carolina 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 Rents dated as of December 29, 1997, which was recorded
in Official Records Book 1737, Page 981, of the public records of Greenville
County, South Carolina (the "Assignment"), which Assignment was assigned to
Assignee pursuant to that certain Assignment of Mortgage and Related Loan
Documents of even date herewith to be recorded in the public records of
Greenville County, South Carolina.
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C. The Mortgage has been modified and amended pursuant to that
certain Amended and Restated Mortgage, Assignment of Leases and Rents and
Security Agreement of even date herein, to be recorded in the Public Records of
Greenville County, South Carolina 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.
▇. ▇▇▇▇▇▇▇▇ 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.
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.
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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.
ASSIGNOR:
WITNESSES: ▇▇▇▇▇ EQUITY, INC.,
a Florida corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------- ----------------------------------
Name: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Title: Treasurer
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. [AFFIX CORPORATE SEAL]
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ASSIGNEE:
WITNESSES: FIRST UNION NATIONAL BANK,
a national association, as Agent
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------- ----------------------------------
Name: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ [AFFIX CORPORATE SEAL]
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STATE OF Georgia )
) PROBATE
COUNTY OF Camden )
PERSONALLY appeared before me the undersigned witness who after first
being duly sworn, deposes and says that s/he saw the within-named ▇▇▇▇▇ EQUITY,
INC., by ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, its Treasurer, sign seal and as its act and deed,
deliver the within-written Amendment to Assignment of Leases and Rents for the
uses and purposes therein mentioned, and that s/he together with the other
witness whose signature appears above, witnessed the execution thereof.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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WITNESS
SWORN TO BEFORE ME THIS
30th day of December, 1998.
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/s/ ▇▇▇ ▇▇▇▇▇ (L.S.)
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Notary Public for Georgia
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Notary Public, Camden County, Georgia
My commission expires: Feb. 1, 1999
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STATE OF Florida )
) PROBATE
COUNTY OF ▇▇▇▇▇ )
PERSONALLY appeared before me the undersigned witness who after first
being duly sworn, deposes and says that s/he saw the within-named FIRST UNION
NATIONAL BANK, a national association, by ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, its Vice
President, sign seal and as its act and deed, deliver the within-written
Amendment to Assignment of Leases and Rents for the uses and purposes therein
mentioned, and that s/he together with the other witness whose signature appears
above, witnessed the execution thereof.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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WITNESS
SWORN TO BEFORE ME THIS
30th day of December, 1998.
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (L.S.)
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Notary Public for Florida
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My commission expires: September 3, 2000
Bonded Thru Notary Public Underwriters
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EXHIBIT A
LEGAL DESCRIPTION OF PREMISES