Exhibit 10.25
PROCEEDS SHARING AGREEMENT
This PROCEEDS SHARING AGREEMENT is made on July 17, 2002, by and among
BANK OF AMERICA, N.A., a national banking association in its capacity as
administrative and collateral agent (together with its successors in such
capacity, the "Agent") for the Pre-Petition Lenders (as defined below) under the
Syndicated Loan Agreement (as defined below); each of the Pre-Petition Lenders;
▇▇▇▇▇ VENTURES, L.P., a Texas limited partnership ("▇▇▇▇▇ Ventures"); ▇▇▇▇▇▇
▇▇▇▇▇▇, an individual resident of the State of New York ("Belfer"); LJH, LTD., a
Texas limited partnership and successor-in-interest to LJH Corporation ("LJH");
▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual resident of the State of Texas ("▇▇▇▇▇▇▇";
together with ▇▇▇▇▇ Ventures, Belfer, LJH, and their respective heirs,
successors and permitted assigns, the "AVS Investors" and individually, an "AVS
Investor"); and J. ▇▇▇▇▇▇▇ ▇▇▇▇▇, an individual resident of the State of Texas
not individually but solely as trustee for the AVS Investors (the "AVS Investor
Trustee").
Recitals:
▇▇▇▇▇▇▇▇▇ Industries, Inc., a Delaware corporation ("▇▇▇▇▇▇▇▇▇"),
▇▇▇▇▇▇▇▇▇ Commercial Aircraft, Inc., a Delaware corporation ("Kellcad"),
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc., a Florida corporation ("Solair"), Certified Aircraft
Parts, Inc., a Florida corporation ("Certified"), Aircraft 21801, Inc., a
Delaware corporation ("21801"), and Aircraft 21805, Inc., a Delaware corporation
("21805"), are parties to that certain Amended and Restated Loan and Security
Agreement dated as of December 14, 1998 (as at any time amended, the "Syndicated
Loan Agreement"), with various lenders (the "Pre-Petition Lenders"), Agent and
Banc of America Securities LLC, as syndication agent ("Syndication Agent").
Pursuant to that certain Real Estate Mortgage, Assignment of Rents and
Security Agreement dated as of February 1, 1999, executed by ▇▇▇▇▇▇▇▇▇ in favor
of Agent for the benefit of the Pre-Petition Lenders (the "Syndicated
Mortgage"), ▇▇▇▇▇▇▇▇▇ has granted to Agent, for its benefit and the benefit of
the Pre-Petition Lenders, a lien on certain real property and related
improvements located at or near ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, to
secure indebtedness of up to $9,000,000.
The AVS Investors and ▇▇▇▇▇▇▇▇▇ are parties to a certain Agreement with
Respect to Standby Letter of Credit Facility dated December 1, 2000 (as at any
time amended, the "AVS Investor LC Agreement") in connection with which the AVS
Investors caused to be issued certain letters of credit in favor of Agent, for
the benefit of the Pre-Petition Lenders, in the aggregate amount of $8,000,000
(the "AVS Investor Letters of Credit").
▇▇▇▇▇▇▇▇▇'▇ obligation to reimburse the AVS Investors for any draws
under AVS Investor Letters of Credit was evidenced by, among other things, four
certain Promissory Notes, each in the original principal amount of $2,000,000,
made by ▇▇▇▇▇▇▇▇▇ and payable to the order of an AVS Investor (the "AVS Investor
Notes").
Agent submitted draws, in the aggregate amount of $8,000,000, under the
AVS Investor Letters of Credit on or about October 17 and 18, 2001, and such
draws caused a funding under the AVS Investor Notes.
▇▇▇▇▇▇▇▇▇'▇ obligation to reimburse the AVS Investors for any draws
under AVS Investor Letters of Credit, and to pay the AVS Investor Notes, was
secured by a collateral assignment of direct or indirect cash
proceeds from the sale of any or all of the Property (as defined
below), as set forth in that certain Collateral Assignment of Proceeds dated as
of December 1, 2000, among ▇▇▇▇▇▇▇▇▇ and the AVS Investors (as at any time
amended, the "AVS Investor Collateral Assignment") and an Agreement Not To
Encumber dated as of December 1, 2000, among ▇▇▇▇▇▇▇▇▇ and the AVS Investors (as
at any time amended, the "AVS Investor Negative Pledge").
Agent and the AVS Investors have previously entered into that certain
Intercreditor Agreement dated as of December 1, 2000 (as at any time amended,
the "Prior Intercreditor Agreement"), to set forth their agreements with respect
to the application of any proceeds from the Property.
The parties hereto desire to enter into this Agreement to set forth
their agreements with respect to the Property and any proceeds thereof and
setting forth certain other agreements between them with respect to the Debtors.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants and conditions herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby expressly
acknowledged, the parties hereto, intending to be bound hereby, agree as
follows:
1. Certain Definitions. In addition to the terms defined in
the recitals hereto, as used in this Agreement, the following terms shall
have the following meanings for the purposes of this Agreement:
"Acceptable Bankruptcy Plan" shall mean a Bankruptcy Plan, in
form and substance acceptable to Agent and the Pre-Petition Lenders,
which, among other things, provides that Agent shall have Control of
the Property.
"Affiliate" shall mean, with respect to a Person, (a) any
partner, officer, shareholder (if holding more than 10% of the
outstanding shares of capital stock of such Person), director, employee
or managing agent of such Person, (b) any other Person that, (i)
directly or indirectly through one or more intermediaries, controls, or
is controlled by, or is under common control with, such given Person,
(ii) directly or indirectly beneficially owns or holds 10% or more of
any class of voting stock or partnership or other voting interest of
such Person or any subsidiary of such Person, or (iii) 10% or more of
the voting stock or partnership or other voting interest of which is
directly or indirectly beneficially owned or held by such Person or a
subsidiary of such Person. For purposes of this definition, the term
"control" and the related terms "controls" and "controlled"shall mean
the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether
through ownership of voting securities or partnership or other voting
interests, by contract or otherwise.
"Aggregate Carrying Costs" shall mean the aggregate amount of
Carrying Costs incurred during the period from the date of this
Agreement until the consummation of a Qualifying Disposition, minus the
aggregate amount of Rental Payments and Net Insurance Proceeds, if any,
received during such period and applied to pay or reimburse Agent or
Pre-Petition Lenders for such Carrying Costs.
"Agreement" shall mean this Proceeds Sharing Agreement, as the
same may be modified, amended or supplemented from time to time.
"ASDSC" shall mean Aviation Sales Distribution Services
Company, a Delaware corporation.
"Asset Sale Agreement" shall mean the Asset Sale Agreement
dated as of February 20, 2002, among Buyer and Sellers, as the same may
be modified, amended or supplemented from time to time.
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"Association Lien" shall mean the lien claimed by the Sawgrass
International Corporate Park Association, Inc. against ▇▇▇▇▇▇▇▇▇
relating to past due maintenance and assessment fees in the amount of
$31,784.56, as recorded on February 12, 2002, in Official Records Book
32754, Page 1029 of the Public Records of Broward County, Florida.
"AVS" shall mean TIMCO Aviation Services, Inc., a Delaware
corporation formerly known as Aviation Sales Company.
"AVS Investor Collateral Assignment" shall have the meaning
set forth in the Recitals.
"AVS Investor LC Agreement" shall have the meaning set forth
in the Recitals.
"AVS Investor Letters of Credit" shall have the meaning set
forth in the Recitals.
"AVS Investor Loan Documents" shall mean and include AVS
Investor LC Agreement, the AVS Investor Notes, the AVS Investor
Collateral Assignment, the AVS Investor Negative Pledge, and all other
instruments or agreements now or hereafter evidencing or securing the
payment of the whole or any part of the AVS Investor Obligations.
"AVS Investor Negative Pledge" shall have the meaning set
forth in the Recitals.
"AVS Investor Notes" shall have the meaning set forth in the
Recitals.
"AVS Investor Obligations" shall mean and include all
liabilities and obligations of any or all Debtors to the AVS Investors
or the AVS Investor Trustee, whether now or hereafter created, incurred
or arising, and whether direct or indirect, absolute or contingent,
primary or secondary, due or to become due, joint or several,
including, without limitation, all liabilities now or at any time or
times hereafter owing to the AVS Investors or the AVS Investor Trustee
under any of the AVS Investor Loan Documents.
"AVS Investor Release" shall mean a Mutual Release among the
AVS Investors, AVS Investor Trustee, Agent, Syndication Agent and
Pre-Petition Lenders in the form attached hereto as Exhibit B.
"AVS Investor Trustee" shall have the meaning set forth in the
Recitals.
"AVS Parties" shall mean the AVS Investors and the AVS
Investor Trustee, and each of their respective Affiliates and
successors.
"AVS Party Purchase Term" shall mean the period starting on
the date of this Agreement and ending on the later to occur of (a) 90
days after the date the Agent obtains Control of the Property or (b)
October 31, 2003.
"AVS/ASDSC Release" shall mean a Mutual Release among AVS,
ASDSC, KAV Agent, KAV Lenders, Agent, Syndication Agent and
Pre-Petition Lenders in the form attached hereto as Exhibit D.
"Bankruptcy Cases" shall mean the Debtors' cases under Chapter
11 of the Bankruptcy Code pending in the Bankruptcy Court and any case
under Chapter 7 of the Bankruptcy Code to which any such Chapter 11
Case may hereafter be converted.
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"Bankruptcy Code" shall mean title 11 of the United States
Code.
"Bankruptcy Court" shall mean the United States Bankruptcy
Court for the District of Delaware.
"Bankruptcy Plan" shall mean a joint plan of liquidation
proposed by Debtors or any other Person in the Bankruptcy Cases.
"Bankruptcy Plan Transfer" shall mean the transfer of the
Property by ▇▇▇▇▇▇▇▇▇ to a liquidating trust for the benefit of Agent
and Pre-Petition Lenders (subject to the terms and provisions of this
Agreement) pursuant to a Bankruptcy Plan.
"Buyer" shall mean KIAC, Inc., a Delaware corporation.
"Carrying Costs" shall mean the actual out-of-pocket costs
incurred by any Debtor, any Owner, any Pre-Petition Lender or Agent (or
any of their respective successors or assigns) from the date of this
Agreement through the date of a Qualifying Disposition to insure,
maintain, protect and repair any of the Property, to discharge any
adverse liens or claims upon any of the Property and to ensure that any
of the Property complies with all applicable laws, including, without
limitation, any and all real estate taxes, insurance costs, reasonable
maintenance and upkeep expenses for all or any part of the Property,
environmental remediation expenses, property owners association dues
and utilities (but specifically excluding any principal and interest
payments made or owing by any Debtor under the Syndicated Loan
Documents or any other loan secured by a lien on all of any part of the
Property).
"Control" shall mean the ability of the Agent, whether
directly or indirectly, (a) lawfully to prevent any sale or other
disposition of the Property on terms that are unacceptable to Agent
(whether pursuant to a Disposition Order, an Acceptable Bankruptcy Plan
or otherwise), (b) lawfully to cause the sale or other disposition of
the Property on terms that are acceptable to Agent (whether pursuant to
a Disposition Order, an Acceptable Bankruptcy Plan or otherwise), and
(c) lawfully to direct application of Net Cash Proceeds from the
Property for application to the Syndicated Obligations.
"Debtors" shall mean ▇▇▇▇▇▇▇▇▇, Kellcad, Solair, Certified,
21801, 21805, DC-9 Aircraft Holdings, L.L.C., a Nevada limited
liability company, and DC-9 Aircraft Holdings II, L.L.C., a Delaware
limited liability company.
"Disposition Agreement" shall have the meaning ascribed to it
in Section 3 hereof.
"Disposition Motion" shall mean a motion that may be filed by
Debtors with the Bankruptcy Court seeking approval and ratification of
a Disposition Agreement.
"Disposition Order" shall mean an order of the Bankruptcy
Court, in form and substance acceptable to Agent and the AVS Investors,
either (a) approving the relief requested in a Disposition Motion, or
(b) otherwise allowing Agent lawfully to prevent any sale or other
disposition of the Property on terms that are unacceptable to Agent.
"Enforcement Action" shall mean the commencement of any action
(including, without limitation, judicial action, exercise of self-help
or power of sale), suit or proceeding by Agent pursuant to the
Syndicated Mortgage or any other security document to foreclose or
otherwise enforce any lien upon, sell, seize, levy, execute upon,
attach, sequester, appoint a receiver for or otherwise dispose of any
of the
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Property, but shall exclude (i) any assertion by Agent of its lien on
any of the Property as the basis for an objection to a sale of any of
the Property under Section 363 of the Bankruptcy Code or for obtaining
the proceeds from any sale or other disposition of any of the Property,
whether or not such sale or other disposition is a Qualifying
Disposition, (ii) any consent by Agent or withholding by Agent of its
consent to any sale or other disposition of any of the Property,
whether or not such sale or other disposition is a Qualifying
Disposition, and (iii) any direction by Agent to cause the sale or
other disposition of any of the Property at any time Agent has Control
of any of the Property, whether or not such sale or other disposition
is a Qualifying Disposition.
"Initial Sharing Term" shall mean the period starting on the
date of this Agreement and ending on the earlier to occur of (a) the
365 days after the date of the confirmation of an Acceptable Bankruptcy
Plan or (b) October 31, 2003.
"KAV" shall mean KAV Inventory, LLC, a Delaware limited
liability company.
"KAV Agent" shall mean Bank of America, N.A., a national
banking association, in its capacity as agent for the KAV Lenders.
"KAV Lenders" shall mean the various financial institutions
from time to time party to the KAV Loan Agreement as lenders.
"KAV Loan Agreement" shall mean that certain Loan and Security
Agreement dated as of December 1, 2000, among KAV, the KAV Lenders and
the KAV Agent, as the same may be modified, amended or supplemented
from time to time.
"KAV Release" shall mean a Mutual Release among KAV, KAV
Agent, KAV Lenders, Agent, Syndication Agent and Pre-Petition Lenders
in the form attached hereto as Exhibit C.
"▇▇▇▇▇▇▇▇▇" shall have the meaning set forth in the Recitals.
"Net Cash Proceeds" shall mean proceeds (including, without
limitation, cash payments that are received on account of deferred
payment obligations as and when received) that Agent receives (or is
lawfully entitled to receive) and, except for the sharing provisions
set forth herein, is entitled to retain for the benefit of itself and
the Pre-Petition Lenders in cash from the sale, transfer or other
disposition of any of the Property, after payment of all reasonable and
customary costs and expenses of such sale, transfer or other
disposition (including, without limitation, legal fees, sales
commissions, property taxes and any payments made to satisfy the
Association Lien and any other prior encumbrances other than any
amounts owing to the Agent and Pre-Petition Lenders under the
Syndicated Loan Documents or the AVS Investors or the AVS Investor
Trustee under the AVS Investor Loan Documents); provided that Net Cash
Proceeds shall not include any Rental Payments or Net Insurance
Proceeds.
"Net Insurance Proceeds" shall mean cash proceeds received by
Agent (or which Agent is lawfully entitled to receive) and, except for
the sharing provisions set forth herein, which Agent is entitled to
retain for the benefit of itself and the Pre-Petition Lenders on
account of any insurance on any of the Property, but excluding any
insurance proceeds used for the repair or replacement of any loss of or
damage to any of the Property.
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"Owner" shall mean, as appropriate, ▇▇▇▇▇▇▇▇▇, any successor
owner or transferee of any of the Property pursuant to a Bankruptcy
Plan Transfer, or Agent or an Affiliate of Agent following a
foreclosure sale in which Agent or such Affiliate of Agent becomes the
owner of any of the Property.
"Person" shall mean an individual, limited liability company,
corporation, partnership, association, trust or unincorporated
organization, joint venture or other entity or a government or any
agency or political subdivision thereof.
"Post-Closing Resolution Agreement" shall mean that certain
Post-Closing Resolution Agreement dated as of June 10, 2002, among
▇▇▇▇▇▇▇▇▇, AVS and ASDSC.
"Pre-Petition Lenders" shall have the meaning set forth in the
Recitals.
"Prior Intercreditor Agreement" shall have the meaning set
forth in the Recitals.
"Property" shall mean the real property described on Exhibit A
attached hereto.
"Purchase Price" shall mean, with respect to a purchase of the
Property by an AVS Party, an amount payable in cash equal to $5,500,000
plus the amount of Aggregate Carrying Costs incurred through the date
of such purchase.
"Qualifying Disposition" shall mean (a) a sale or other
disposition of the Property that constitutes a transfer of fee simple
title to the Property by Owner which results in Net Cash Proceeds being
received by Agent, but shall exclude, without limitation, any
Bankruptcy Plan Transfer or (b) a foreclosure by Agent upon the
Property under the Syndicated Loan Documents or applicable law pursuant
to which fee simple title to the Property is transferred to a Person
who is not Agent, any Pre-Petition Lender, an Affiliate of Agent or an
Affiliate of any Pre-Petition Lender and which results in Net Cash
Proceeds being received by Agent, for its benefit and the benefit of
the Pre-Petition Lenders, but shall exclude, without limitation, (i)
any foreclosure by Agent upon the Property in which Agent or an
Affiliate of Agent acquires the Property as a result of a credit bid or
in exchange for debt forgiveness and (ii) any purchase of the Property
by Agent, any Pre-Petition Lender, an Affiliate of Agent, or an
Affiliate of any Pre-Petition Lender by credit bid of any of the
Syndicated Obligations at a sale under Section 363 of the Bankruptcy
Code or pursuant to a Bankruptcy Plan. A Qualifying Disposition shall
not include any lease of any of the Property that does not result in
the transfer of fee simple title to the Property.
"Rental Payments" shall mean any rental payments received by
Agent (or which Agent is entitled to receive) and, except for the
sharing provisions set forth herein, which Agent is entitled to retain
for the benefit of itself and the Pre-Petition Lenders from the lease
by Owner (with Agent's prior written consent) of some or all of the
Property to any Person after the date of this Agreement.
"Sellers" shall mean, collectively, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
Certified and Kellcad.
"Syndicated Loan Agreement" shall have the meaning ascribed to
it in the Recitals.
"Syndicated Loan Documents" shall mean and include the
Syndicated Loan Agreement, the Syndicated Mortgage and all other
instruments or agreements now or hereafter evidencing or securing the
payment of the whole or any part of the Syndicated Obligations.
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"Syndicated Mortgage" shall have the meaning ascribed to it in
the Recitals.
"Syndicated Obligations" shall mean and include all
liabilities and obligations of any or all Debtors to Agent or any
Pre-Petition Lender, whether heretofore or hereafter created, incurred
or arising, and whether direct or indirect, absolute or contingent,
primary or secondary, due or to become due, joint or several,
including, without limitation, all liabilities heretofore or at any
time or times hereafter owing to Agent or any Pre-Petition Lender under
any of the Syndicated Loan Documents. For purposes hereof, all Carrying
Costs incurred from the date of this Agreement through the date of a
Qualifying Disposition shall be deemed a part of the Syndicated
Obligations.
"Syndication Agent" shall have the meaning set forth in the
Recitals.
2. Termination of Prior Intercreditor Agreement. The parties hereto
agree that the Prior Intercreditor Agreement is hereby terminated and shall no
longer be of any force or effect and that none of the parties hereto shall have
any liabilities or obligations thereunder. The AVS Investor Trustee and the AVS
Investors agree to execute and deliver all terminations and satisfactions, if
any, necessary to effectuate such termination.
3. Disposition Agreement. Promptly after the execution and delivery of
this Agreement, the Agent and AVS Investors will diligently and in good faith
attempt to negotiate with Debtors an agreement allowing Agent lawfully to
prevent any sale or other disposition of the Property on terms that are
unacceptable to Agent (the "Disposition Agreement"), and the Agent and the AVS
Investors will support a Disposition Motion, if any is filed, seeking entry of a
Disposition Order.
4. Disposition and Purchase Rights.
(a) Purchase of Property by an AVS Party. If and for so long
as Agent has Control of the Property, Agent and Pre-Petition Lenders
agree that, during the AVS Party Purchase Term, they will consent to a
sale of the Property to an AVS Party upon the following terms and
subject to the following conditions: (i) such sale is closed and the
Purchase Price paid prior to the expiration of the AVS Party Purchase
Term; (ii) the cash purchase price to be paid by such AVS Party is at
least equal to the Purchase Price; (iii) the Agent receives (and is
authorized to retain for the benefit of itself and the Pre-Petition
Lenders) all of the Net Cash Proceeds from such sale for application to
the Syndicated Obligations; (iv) the sale is on an as-is, where-is
basis, without recourse to Agent, Pre-Petition Lenders or Owner; and
(v) a Qualifying Disposition of the Property has not been previously
concluded. If Agent does not have Control of the Property, Agent and
Pre-Petition Lenders agree that they will not object to and will
support a sale of the Property to an AVS Party if each of the foregoing
terms and conditions set forth in this Section 4(a) is satisfied.
Neither Agent nor any Pre-Petition Lender shall be charged with any
notice that a Person other than an AVS Investor or the AVS Investor
Trustee is an AVS Party unless Agent shall have previously received
written notice from the AVS Investor Trustee that such Person is an AVS
Party.
(b) Agent's Rights to Foreclose and Consent to Sale. Subject
to the provisions of Sections 6, 7 and 8 of this Agreement regarding
the sharing of proceeds from a Qualifying Disposition of the Property,
(i) Agent shall at all times have the sole and exclusive right, subject
to clause (b) of Section 10, to undertake or refrain from undertaking
any Enforcement Action with respect to the Property, including, without
limitation, the right to foreclose upon, sell, transfer, liquidate or
otherwise dispose of the Property for any amount (including, without
limitation, for cash or non-cash
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consideration), all as provided in the Syndicated Loan Documents or by
applicable law, in the manner deemed appropriate by Agent, without
regard to any claims or interests of the AVS Investors or the AVS
Investor Trustee with respect to the Property, provided that, to the
extent such Enforcement Action does not result in a Qualifying
Disposition, the rights of the AVS Investors and the AVS Investor
Trustee under this Agreement shall remain in full force and effect, and
(ii) Agent shall have the right to consent to any sale or other
disposition of the Property by Owner for any amount, without regard to
any claims or interests of the AVS Investors or the AVS Investor
Trustee with respect to the Property, provided that if Agent does not
have Control of the Property, Agent shall not consent to or support a
sale of the Property during the Initial Sharing Term to any purchaser
for a gross purchase price less than $8,000,000 (other than to an AVS
Party for an amount equal to the Purchase Price) and shall object (in
which objection Agent shall endeavor to raise all known grounds
reasonably believed by Agent to be a basis for such objection under
Section 363 of the Bankruptcy Code) to any such sale that may be
proposed by Owner.
(c) Notice to AVS Investor Trustee of Proposed Sale. If Agent
has Control of the Property and elects to cause or consent to any sale
or other disposition of the Property to a purchaser (other than an AVS
Party) during the Initial Sharing Term pursuant to a transaction that
would constitute a Qualifying Disposition upon its consummation, Agent
shall promptly notify the AVS Investor Trustee in writing (a "Sale
Notice") of such election, setting forth the terms and conditions of
any such proposed sale (a "Proposed Sale"). If (i) the purchase price
for the Property pursuant to such Proposed Sale is less than a gross
amount of $8,000,000 and (ii) Agent has received, within ten (10) days
after transmittal of the Sale Notice to the AVS Investor Trustee, a
duly executed binding commitment (without a financing contingency) from
an AVS Party, in form and substance acceptable to Agent in its sole
discretion, to purchase the Property, within thirty (30) days after
Agent's receipt such commitment, on an as-is, where-is basis and
without recourse to Agent, Pre-Petition Lenders or Owner for an amount
in cash equal to the lesser of (i) the gross purchase price proposed to
be paid in connection with the Proposed Sale or (ii) the Purchase
Price, then Agent agrees it will not cause or consent to the Proposed
Sale until after the end of such thirty (30) day period.
(d) Application of Net Cash Proceeds. In the event the
Property is sold to an AVS Party, whether pursuant to Section 4(a),
Section 4(c) or otherwise, Agent shall be entitled to receive (and
retain for the benefit of itself and the Pre-Petition Lenders) all of
the Net Cash Proceeds from such sale.
5. Dispositions Other than a Qualified Disposition. The parties hereto
agree that any sale, transfer or other disposition of the Property at any time,
whether or not during the Initial Sharing Term, that does not constitute a
Qualifying Disposition shall not trigger any of the provisions of Sections 6, 7
or 8 hereof, and this Agreement shall continue in full force and effect. Agent
shall not transfer or otherwise assign any lien on the Property unless the
assignee agrees to be bound by the provisions of this Agreement.
6. Proceeds Sharing From Qualifying Disposition Without
Control. If at any time during the Initial Sharing Term the Property is sold
or otherwise disposed of to a Person (other than an AVS Party) pursuant to a
Qualifying Disposition at a time when the Agent does not have Control of the
Property, then
(a) provided Agent filed with the Bankruptcy Court an
objection to such Qualifying Disposition (in which objection Agent
shall endeavor to raise all known grounds reasonably believed by Agent
to be a basis for such objection under Section 363 of the Bankruptcy
Code) and advocated such objection at any hearing, but such Qualifying
Disposition was consummated notwithstanding such objection, then (i)
first, Agent, for its benefit and the benefit of the Pre-Petition
Lenders, shall be entitled to retain from the Net Cash Proceeds of a
Qualifying Disposition an amount equal to the Aggregate
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Carrying Costs, for application to the Syndicated Obligations,
(ii) second, Agent, for its benefit and the benefit of the Pre-Petition
Lenders, shall be entitled to retain the next $5,500,000 of the Net
Cash Proceeds of such Qualifying Disposition, for application to the
Syndicated Obligations, (iii) third, the AVS Investor Trustee, for the
benefit of the AVS Investors, shall be entitled to receive the next Net
Cash Proceeds of such Qualifying Disposition in an amount not to exceed
the remainder of $8,000,000 minus the Aggregate Carrying Costs, for
application to the AVS Investor Obligations, and (iv) fourth, Agent,
for its benefit and the benefit of the Pre-Petition Lenders, shall be
entitled to retain all remaining Net Cash Proceeds of such Qualifying
Disposition, for application to the Syndicated Obligations; or
(b) provided Agent did not file an objection with the
Bankruptcy Court to such Qualifying Disposition, then (i) first, Agent,
for its benefit and the benefit of the Pre-Petition Lenders, shall be
entitled to retain from the Net Cash Proceeds of such Qualifying
Disposition an amount equal to the Aggregate Carrying Costs for
application to the Syndicated Obligations, (ii) second, the AVS
Investor Trustee, for the benefit of the AVS Investors, shall be
entitled to receive from the next Net Cash Proceeds of such Qualifying
Disposition an amount not to exceed the remainder of $8,000,000 minus
the Aggregate Carrying Costs, for application to the AVS Investor
Obligations, and (iii) third, Agent, for its benefit and the benefit of
the Pre-Petition Lenders, shall be entitled to retain all remaining Net
Cash Proceeds of such Qualifying Disposition, for application to the
Syndicated Obligations.
7. Proceeds Sharing From Qualifying Disposition With Control. If at any
time during the Initial Sharing Term the Property is sold or otherwise disposed
of to a Person (other than an AVS Party) pursuant to a Qualifying Disposition at
a time when the Agent has Control of the Property, then (a) first, Agent, for
its benefit and the benefit of the Pre-Petition Lenders, shall be entitled to
retain from the Net Cash Proceeds of such Qualifying Disposition an amount equal
to the Aggregate Carrying Costs, for application to the Syndicated Obligations,
(b) second, the AVS Investor Trustee, for the benefit of the AVS Investors,
shall be entitled to receive the next Net Cash Proceeds of such Qualifying
Disposition in an amount not to exceed the remainder of $8,000,000 minus the
Aggregate Carrying Costs, for application to the AVS Investor Obligations, and
(c) third, Agent, for its benefit and the benefit of the Pre-Petition Lenders,
shall be entitled to retain all remaining Net Cash Proceeds of such Qualifying
Disposition, for application to the Syndicated Obligations.
8. Proceeds Sharing From Qualifying Disposition After Initial Sharing
Term. After the expiration of the Initial Sharing Term, the Property may be sold
pursuant to a Qualifying Disposition (regardless of any date on which any
purchase offer was originally made) on such terms and for such a purchase price
as may be acceptable to Agent in its discretion, and, in the event of such
Qualifying Disposition, then (a) first, Agent, for its benefit and the benefit
of the Pre-Petition Lenders, shall be entitled to retain from the Net Cash
Proceeds of such Qualifying Disposition an amount equal to the Aggregate
Carrying Costs, for application to the Syndicated Obligations, (b) second,
Agent, for its benefit and the benefit of the Pre-Petition Lenders, shall be
entitled to retain from the Net Cash Proceeds of such Qualifying Disposition the
next $9,000,000, for application to the Syndicated Obligations, (c) third, the
AVS Investor Trustee, for the benefit of the AVS Investors, shall receive
payment of the next $8,000,000 from the Net Cash Proceeds of such Qualifying
Disposition, for application to the AVS Investor Obligations, and (d) fourth,
Agent, for its benefit and the benefit of the Pre-Petition Lenders, shall be
entitled to retain all remaining Net Cash Proceeds of such Qualifying
Disposition, for application to the Syndicated Obligations.
9. Proceeds Sharing from Lease of Property. Prior to any Qualifying
Disposition of the Property, Agent may, in its sole discretion, consent to the
lease of all or any part of the Property or, when Agent has Control of the
Property, cause the Owner to lease all or any part of the Property, in each case
subject to the following terms and conditions:
9
(a) With respect to any lease entered into during the Initial
Sharing Term, the lease shall not restrict or impair the right of any
AVS Party to purchase the Property in accordance with and subject to
the terms and conditions set forth in Sections 4(a) and (c) hereof and
shall not contain a purchase option; if the term of such lease
(including any renewal or option term) is for a period longer than
eighteen (18) months, the term of the lease and amount of Rental
Payments shall be mutually acceptable to Agent and the AVS Investor
Trustee (acting at the direction of the AVS Investors); all Rental
Payments received under such lease prior to the consummation of a
Qualifying Disposition shall be applied first to any Carrying Costs
incurred with respect to the Property after the date of this Agreement,
next retained by Agent for application to the Syndicated Obligations
(until Agent and Pre-Petition Lenders have received $9,000,000 of
Rental Payments for application to the Syndicated Obligations), next
turned over to the AVS Investor Trustee for application to the AVS
Investor Obligations (until the AVS Investors and the AVS Investor
Trustee have received $8,000,000 of Rental Payments for application to
the AVS Investor Obligations), and thereafter retained by Agent and the
Pre-Petition Lenders for application to the Syndicated Obligations; any
Rental Payments payable under such lease after the consummation of a
Qualifying Disposition shall become the property of the purchaser of
the Property pursuant to such Qualifying Disposition; and, pending a
Qualifying Disposition, such lease shall be subject to the liens of
Agent with respect to the Property.
(b) With respect to any lease entered into after the
expiration of the Initial Sharing Term, or a lease entered into during
the Initial Sharing Term but renewed after the expiration of the
Initial Sharing Term, the lease may be for such a period or periods and
on such terms and conditions as may be acceptable to Agent in its sole
discretion, and all Rental Payments received by Agent under such lease
prior the effective date of a Qualifying Disposition shall be applied
as set forth in clause (a) above of this Section 9.
(c) In no event shall the amount of Rental Payments received
by Agent or any Pre-Petition Lender and applied to the Syndicated
Obligations reduce the amount of the Purchase Price required to be paid
by an AVS Party in connection with the purchase of the Property by an
AVS Party pursuant to this Agreement, except to the extent that such
Rental Payments are applied to any Carrying Costs.
(d) The amount of Rental Payments received by Agent or any
Pre-Petition Lender and applied to the Syndicated Obligations (other
than amounts applied to Carrying Costs) shall be credited against the
amount that Agent and the Pre-Petition Lenders shall be otherwise
entitled to receive from Net Cash Proceeds and Net Insurance Proceeds
pursuant to Sections 6(a)(ii), 8(b), 15(b) and 15(c). The amount of
Rental Payments received by the AVS Investor Trustee or any AVS
Investor and applied to the AVS Investor Obligations shall be credited
against the amount that the AVS Investor Trustee and the AVS Investors
shall be otherwise entitled to received from Net Cash Proceeds and Net
Insurance Proceeds pursuant to Sections 6(a)(iii), 6(b)(ii), 7(b),
8(c), 15(b) and 15(c).
10. Termination of Various Agreements and Return of AVS Investor Notes.
If and when the applicable amount set forth in Section 6, 7 or 8 is paid (or if
the AVS Investors and the AVS Investor Trustee have otherwise received
$8,000,000 for application to the AVS Investor Obligations, whether from the
receipt of Rental Payments or Net Insurance Proceeds as provided in the
Agreement or otherwise), the AVS Investors and AVS Investor Trustee agree that
(a) the AVS Investor Collateral Assignment, the AVS Investor Negative Pledge and
any related documents and public filings shall be terminated and the AVS
Investors and AVS Investor Trustee shall execute and deliver all terminations
and satisfactions necessary to effectuate such terminations, and (b) the AVS
Investors shall deliver the original AVS Investor Notes to ▇▇▇▇▇▇▇▇▇ marked
"satisfied." Each of the AVS Investors and the AVS Investor Trustee agree that
their sole recourse to payment on account of the AVS
10
Investor Obligations shall be the right to share in the proceeds from
the sale or other disposition of the Property as provided in this Agreement and
that they shall not seek a distribution on account of any claim they may have in
any of the Bankruptcy Cases or otherwise seek payment from any Debtor or any
Debtor's estate in any of the Bankruptcy Cases; provided this Section 10 shall
not prohibit the AVS Investors and the AVS Investor Trustee from exercising the
rights set forth in Section 11(c) of this Agreement.
11. Limitations Upon Foreclosure Rights of Parties.
(a) Notices by Agent. Prior to the expiration of the Initial
Sharing Term, Agent shall give the AVS Investor Trustee copies of any
written notices of foreclosure, exercise of remedies and any other
written notice of a like nature relating to the Property, including,
without limitation, any such notice which may be given under or
pursuant to the terms of the Syndicated Loan Documents or pursuant to
law, which Agent hereafter may give to any Debtor or Owner,
concurrently with, or as soon as practicable after, the giving of such
notice to such Debtor or Owner. No failure of Agent to give a copy of
such notice to the AVS Investor Trustee as provided herein shall in any
event affect the sharing arrangement set forth herein.
(b) Termination of Foreclosure by Agent. If Agent has
commenced an Enforcement Action with respect to the Property prior to
the expiration of the Initial Sharing Term, Agent agrees that it will
discontinue prosecution of such Enforcement Action if, prior to the
expiration of the Initial Sharing Term and prior to the completion of
such Enforcement Action, an AVS Party consummates the purchase of the
Property for a cash amount at least equal to the Purchase Price. Agent
agrees that, prior to the expiration of the Initial Sharing Term, it
will not complete any foreclosure sale of the Property that is a
Qualifying Disposition unless in connection with such Qualifying
Disposition the AVS Investors receive, in the aggregate, an amount of
Net Cash Proceeds at least equal to the remainder of $8,000,000 minus
the Aggregate Carrying Costs.
(c) No Enforcement Action by AVS Investor Trustee or AVS
Investors. For so long as any of the Syndicated Obligations are
outstanding, the AVS Investor Trustee and each AVS Investor agrees that
it will not take any Enforcement Action with respect to any Debtor or
Owner or the whole or any part of the Property. If the AVS Investor
Trustee or any AVS Investor, in violation of the terms hereof,
initiates any Enforcement Action against any Debtor or Owner or any of
the Property, Agent may interpose this Agreement as a defense thereto
and shall be entitled to specific performance of the terms hereof.
Nothing herein shall be construed to limit, restrict or impair Agent's
right to take any Enforcement Action with respect to any of the
Property or the AVS Investors' right (i) to object to any sale or other
disposition of the Property under Section 363 of the Bankruptcy Code to
which Agent has also objected, (ii) to object to the terms of a
Bankruptcy Plan that is not an Acceptable Bankruptcy Plan, or (iii) to
raise any claims the AVS Investors may have against the Debtors as a
defense or offset to any claims brought against the AVS Investors by
any Debtor.
120 Conditions Precedent. The effectiveness of this Agreement is
subject to the satisfaction of each of the following conditions precedent on or
before July 31, 2002 (or such later date as may be agreed to in writing by the
parties hereto), in form and substance satisfactory, unless satisfaction thereof
is specifically waived in writing by the parties hereto:
(a) The Bankruptcy Court shall have issued a final order
authorizing Sellers' execution and performance of the Post-Closing
Resolution Agreement and the other documents and transactions
contemplated thereby, and with respect to such final order (i) the time
to appeal or to seek certiorari or
11
review has expired and as to which no appeal or petition for
certiorari or review has been timely filed, or (ii) any timely-filed
appeal or petition for certiorari or review has been finally determined
or dismissed;
(b) AVS, ASDSC and ▇▇▇▇▇▇▇▇▇ shall have entered into the
Post-Closing Resolution Agreement and the other documents contemplated
thereby and performed all of their respective obligations under the
Post-Closing Resolution Agreement and such other documents that are to
be performed on the Resolution Closing Date (as defined in the
Post-Closing Resolution Agreement);
(c) The Bankruptcy Court shall have issued an order
approving the Asset Sale Agreement and the other documents and
transactions contemplated thereby;
(d) Buyer and Sellers shall have executed and delivered all of
the documents contemplated by the Asset Sale Agreement and performed
all of their respective obligations under the Asset Sale Agreement and
such other documents that are to be performed on the Closing Date (as
defined in the Asset Sale Agreement);
(e) The parties to the AVS Investor Release shall have
executed and delivered the AVS Investor Release;
(f) The parties to the AVS/ASDSC Release shall have
executed and delivered the AVS/ASDSC Release; and
(g) The parties to the KAV Release shall have executed
and delivered the KAV Release.
130 Mutual Releases. Promptly after satisfaction of the conditions
precedent set forth in clauses (a), (b), (c) and (d) of Section 12 of this
Agreement, (i) Agent and each Pre-Petition Lender shall each execute one or more
counterparts of the AVS Investor Release and deliver them to the AVS Investor
Trustee, and the AVS Investors and the AVS Investor Trustee shall each execute
one or more counterparts of the AVS Investor Release and deliver them to the
Agent, (ii) Agent and each Pre-Petition Lender shall each execute one or more
counterparts of the AVS/ASDSC Release and deliver them to the other parties
thereto, and (iii) Agent and each Pre-Petition Lender shall each execute one or
more counterparts of the KAV Release and deliver them to the other parties
thereto.
140 Receipt of Monies by AVS Investors and AVS Investor Trustee. Each
AVS Investor and the AVS Investor Trustee agrees that should it receive any
monies from the sale, liquidation, casualty, lease or other disposition of, or
as a result of its security interest in or lien upon any of the Property at any
time prior to payment to Agent, for its benefit and the benefit of the
Pre-Petition Lenders, of all of the Syndicated Obligations, it shall promptly
turn such monies over to Agent for application as provided in ▇▇▇▇▇▇▇ ▇, ▇, ▇,
▇, ▇ ▇▇ ▇▇ hereof, as applicable.
12
150 Provisions Concerning Insurance.
(a) Each of Agent and AVS Investor Trustee agrees that the
other party shall be entitled to request loss payee endorsements and
additional insured status with respect to any and all policies of
insurance now or hereafter obtained by any Owner insuring casualty or
other loss to any of the Property. Agent alone shall be authorized to
file claims, settle disputes, make adjustments and take any and all
other actions in regard thereto which it may then deem advisable with
respect to any insured loss with respect to any of the Property. Agent,
in its sole discretion, may authorize the Owner's use of all or any
part of the proceeds of property insurance for the repair or
replacement of any damage to the Property.
(b) In the event that any Net Insurance Proceeds are received
during the Initial Sharing Period, then (i) first, Agent, for its
benefit and the benefit of the Pre-Petition Lenders, shall be entitled
to retain from such Net Insurance Proceeds an amount equal to Carrying
Costs incurred after the date of this Agreement, (ii) second, Agent,
for its benefit and the benefit of the Pre-Petition Lenders, shall be
entitled to retain the next $5,500,000 of the Net Insurance Proceeds
for application to the Syndicated Obligations, (iii) third, the AVS
Investor Trustee, for the benefit of the AVS Investors, shall be
entitled to receive the next Net Insurance Proceeds in an amount not to
exceed the remainder of $8,000,000 minus the Carrying Costs incurred
after the date of this Agreement, for application to the AVS Investor
Obligations, and (iv) fourth, Agent, for its benefit and the benefit of
the Pre-Petition Lenders, shall be entitled to retain all remaining Net
Insurance Proceeds for application to the Syndicated Obligations.
(c) In the event that any Net Insurance Proceeds are received
after the expiration of the Initial Sharing Period, then (i) first,
Agent, for its benefit and the benefit of the Pre-Petition Lenders,
shall be entitled to retain from such Net Insurance Proceeds an amount
equal to the Carrying Costs incurred after the date of this Agreement,
(ii) second, Agent, for its benefit and the benefit of the Pre-Petition
Lenders, shall be entitled to retain from such Net Insurance Proceeds
the next $9,000,000, for application to the Syndicated Obligations,
(iii) third, the AVS Investor Trustee, for the benefit of the AVS
Investors, shall receive payment of the next $8,000,000 from Net
Insurance Proceeds, for application to the AVS Investor Obligations,
and (iv) fourth, Agent, for its benefit and the benefit of the
Pre-Petition Lenders, shall be entitled to retain all remaining Net
Insurance Proceeds, for application to the Syndicated Obligations.
(d) The amount of Net Insurance Proceeds received by Agent or
any Pre-Petition Lender and applied to the Syndicated Obligations
pursuant to Section 15(b)(ii) or Section 15(c)(ii) (other than amounts
applied to Carrying Costs) shall be credited against the amount that
Agent and the Pre-Petition Lenders shall be otherwise entitled to
receive from Net Cash Proceeds and Rental Payments pursuant to Sections
6(a)(ii), 8(b) and 9(a). The amount of Net Insurance Proceeds received
by the AVS Investor Trustee or any AVS Investor and applied to the AVS
Investor Obligations pursuant to Section 15(b)(iii) or Section
15(c)(iii) shall be credited against the amount that the AVS Investor
Trustee and the AVS Investors shall be otherwise entitled to receive
from Net Cash Proceeds or Rental Payments pursuant to Sections
6(a)(iii), 6(b)(ii), 7(b), 8(c) and 9(a).
(e) In no event shall the amount of Net Insurance Proceeds
received by Agent or any Pre-Petition Lender and applied to the
Syndicated Obligations reduce the amount of the Purchase Price required
to be paid by an AVS Party in connection with the purchase of the
Property by an AVS Party pursuant to this Agreement, except to the
extent that such Net Insurance Proceeds are applied to any Carrying
Costs.
13
160 No Assumption of Liabilities or Duties. Neither this Agreement nor
any action taken by Agent or any Pre-Petition Lender pursuant to the terms
hereof or any of the Syndicated Loan Documents shall constitute an assumption by
Agent or any Pre-Petition Lender of any obligations to pay any Carrying Costs.
Unless and until an AVS Party consummates the purchase of the Property, neither
this Agreement nor any action taken by any AVS Party pursuant to the terms
hereof or any of the AVS Investor Loan Documents shall constitute an assumption
by any AVS Party of any obligations to pay any Carrying Costs. None of the
parties hereto assumes (and shall not have) any liability to any other party to
market, sell, lease, insure, repair, maintain, safeguard or otherwise dispose of
any of the Property. Except as expressly set forth in this Agreement, Agent
shall have no duty or obligation to cause or consent to any sale or lease of any
of the Property.
170 Notices. All notices, requests and demands to or upon a party
hereto shall be in writing and shall be sent by certified or registered mail,
return receipt requested, personal delivery against receipt or by telecopier or
other facsimile transmission and, unless otherwise expressly provided herein,
shall be deemed to have been validly served, given or delivered when delivered
against receipt or three Business Days after deposit in the U.S. mail, postage
prepaid, or, in the case of facsimile transmission, when received at the office
of the noticed party, addressed as follows:
(A) If to any AVS
Investor or the AVS
Investor Trustee:J. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Trustee
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(B) If to Agent: Bank of America, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Business Credit
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Parker, Hudson, Rainer & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: C. ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
14
or to such other address as each party (or any successor Owner) may designate
for itself by like notice given in accordance with this Section 17. Any written
notice that is not sent in conformity with the provisions hereof shall
nevertheless be effective on the date that such notice is actually received by
the noticed party.
180 Relationship of Parties. This Agreement is entered into solely for
the purposes set forth herein, and, except as is expressly provided otherwise
herein, no party assumes any responsibility to the other parties to advise such
other parties of information known to such party regarding the financial
condition of any Debtor or regarding the Property, or of any other circumstances
bearing upon the risk of nonpayment of the obligations of any Debtor under the
Syndicated Loan Documents or the AVS Investor Loan Documents. Each party shall
be responsible for managing its relationship with each Debtor and no party shall
be deemed the agent of any other party for any purpose. The AVS Investors, the
AVS Investor Trustee and the Agent and Pre-Petition Lenders each may alter,
amend, supplement, release, discharge or otherwise modify any terms of the AVS
Investor Loan Documents or of the Syndicated Loan Documents, respectively,
without the consent of the other.
190 No Debt Subordination. Nothing in this Agreement shall be construed
to be or operate as a subordination of any of the Syndicated Obligations to the
AVS Investor Obligations, or vice versa.
200 Term of Agreement. This Agreement shall continue in full force and
effect and shall be irrevocable by any party hereto until the earlier to occur
of the following: (i) the parties hereto in writing mutually agree to terminate
this Agreement; or (ii) a Qualifying Disposition has occurred and all Net Cash
Proceeds are distributed by Agent as provided in this Agreement.
210 Governing Law. This Agreement shall be interpreted, and the rights
and obligations of the parties hereto determined, in accordance with the laws of
the State of Georgia.
220 No Third Party Beneficiaries. Nothing contained in this Agreement
shall be deemed to indicate that this Agreement has been entered into for the
benefit of any Person other than the parties hereto. No Person other than a
party hereto shall be deemed a beneficiary hereof or be authorized to enforce
any of the terms of this Agreement.
230 Conflict with Loan Documents. The provisions of this Agreement are
intended by the parties to control any conflicting provisions in the Syndicated
Loan Documents or the AVS Investor Loan Documents.
240 Section Titles; Severability. The section titles contained in this
Agreement are and shall be deemed to be without substantive meaning or content
of any kind whatsoever and are not a part of the Agreement between the parties
hereto. Wherever 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 shall be prohibited by or invalid under applicable
law, such provision 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.
250 Execution in Counterparts; Telecopied Signatures. This Agreement
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which counterparts taken together shall
constitute but one and the same instrument. In proving this Agreement in any
judicial proceeding, it shall not be necessary to produce or account for more
than one such counterpart signed by the party against whom such enforcement is
sought. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
15
260 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. In no event, however, shall any party hereto transfer or assign any
security interest or lien that it may have in or upon any of the Property or any
rights under this Agreement to any other Person.
[Remainder of page intentionally left blank]
16
270 Entire Agreement; Amendments. This Agreement expresses the entire
understanding and agreement of the parties hereto with respect to the subject
matter hereof and supersedes all prior understandings and agreements of the
parties regarding the same subject matter, including, without limitation, the
Prior Intercreditor Agreement. This Agreement may not be amended or modified
except by a writing signed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
AGENT:
BANK OF AMERICA, N.A.
By: /s/
---------------------------------
Title:______________________________
Name:_______________________________
[SIGNATURE PAGES OMITTED]
EXHIBIT A
DESCRIPTION OF PROPERTY
Parcel 1:
A portion of Parcel "C", SAWGRASS INTERNATIONAL CORPORATE PARK, according to the
Plat thereof, as recorded in Plat Book 137, Page 28, of the Public Records of
Broward County, Florida, more particularly described as follows:
COMMENCING at the Southeast corner of said Parcel "C", thence North 00 degrees
07 minutes 53 seconds West along the East line of said Parcel "C", 660.20 feet
to the POINT OF BEGINNING; thence North 88 degrees 50 minutes 05 seconds West;
747.82 feet to the East Right of Way line of International Parkway as recorded
in Official Records Book 16136, Page 976 and Official Records Book 17671, Page
829, Public Records of Broward County, Florida; thence North 26 degrees 33
minutes 54 seconds East, along said East Right of Way line, a distance of 924.48
feet to the beginning of a curve concave to the Northwest; thence Northeasterly,
along said East Right of Way line and along the arc of said curve having a
radius of 1128.43 feet, a delta of 11 degrees 02 minutes 06 seconds, and an arc
distance of 217.33 feet to a point; thence South 88 degrees 50 minutes 05
seconds East, a distance of 253.96 feet to the East line of said Parcel "C";
thence South 00 degrees 07 minutes 53 seconds East, along said East line 1039.45
feet to the POINT OF BEGINNING.
Said lands situate, lying and being in Broward County, Florida.
Parcel 2:
A portion of Parcel "C", SAWGRASS INTERNATIONAL CORPORATE PARK, according to the
Plat thereof, recorded in Plat Book 137, Page 28, of the Public Records of
Broward County, Florida, being more fully described as follows:
COMMENCING at the Southeast corner of said Parcel "C", thence North 00 degrees
07 minutes 53 seconds West, on the East line of said Parcel "C", a distance of
1699.65 feet to the POINT OF BEGINNING; thence continuing North 00 degrees 07
minutes 53 seconds West, on the East line, a distance of 390.93 feet; thence
North 88 degrees 50 minutes 05 seconds West, a distance of 212.06 feet; thence
South 00 degrees 07 minutes 53 seconds East, on the East Right-of-Way line of
International Parkway, a distance of 85.36 feet to a point of curve; thence
Southwesterly on the said East Right-of-Way, and on a curve to the right, with a
radius of 1128.43 feet and a central angle of 15 degrees 39 minutes 41 seconds,
an arc distance of 308.45 feet; thence South 88 degrees 50 minutes 05 seconds
East, a distance of 253.96 feet to the POINT OF BEGINNING.
Said lands situate, lying and being in Broward County, Florida.