EXHIBIT 4.13
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(Arvida-II)
SECOND AMENDMENT TO FORBEARANCE AGREEMENT
AND
THIRD AMENDMENT TO MODIFICATION AGREEMENTS
- ------------------------------------------------------------------------
THIS SECOND AMENDMENT TO FORBEARANCE AGREEMENT AND THIRD AMENDMENT
TO MODIFICATION AGREEMENTS (this "AMENDMENT") is made as of this 13th
day of May, 1997, by and among ARVIDA/JMB PARTNERS, L.P.-II, a Delaware
limited partnership ("BORROWER"), HEATHROW DEVELOPMENT ASSOCIATES, LTD.,
a Florida limited partnership ("HEATHROW PARTNERSHIP"), and EAGLE WATCH
PARTNERS, a Georgia general partnership ("EAGLE WATCH PARTNERSHIP"), on
the one hand, and BANK OF AMERICA ILLINOIS, an Illinois banking
corporation ("BAI"), formerly known as Continental Bank N.A. and
Continental Bank, in its capacitites as Managing Co-Agent and Lender
under the Co-Lenders. Agreement for the benefit of the Lenders and
under the Amended and Restated Credit Agreement (as defined herein) and
as Agent and Lender under the Credit Agreement (as defined herein), and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national
banking association ("BA NT&SA") in its capacities as Co-Agent and
Lender under the Co-Lenders' Agreement for the benefit of the Lenders
and under the Amended and Restated Credit Agreement and as Lender under
the Credit Agreement, on the other hand, Borrower, Heathrow Partnership,
and Eagle Watch Partnership may be referred to herein collectively as
the "Borrower Parties". BAI and BA NT&SA may be referred to herein
collectively as the "CO-LENDERS".
RECITALS
A. The Co-Lenders and Borrower have entered into the certain
Amended and Restated Credit Agreement dated as of June 23, 1992 (the
"AMENDED AND RESTATED CREDIT AGREEMENT"), pursuant to which, among other
things, (i) Borrower has executed and delivered certain promissory notes
in the aggregate principal amount of $130,698,161.30, and (ii) the
Borrower Parties have executed and delivered the "SECURITY DOCUMENTS,"
including the "MORTGAGES" (all as defined in the Amended and Restated
Credit Agreement). The indebtedness and obligations of the Borrower
Parties under such notes and Security Documents are collectively
referred to as the "SENIOR OBLIGATIONS."
B. Co-Lenders and Borrower have entered into that certain
Credit Agreement dated as of June 23, 1992 (the "CREDIT AGREEMENT"),
pursuant to which, among other things, (i) Borrower has executed and
delivered certain promissory notes in the aggregate principal amount of
$14,301,838.70, and (ii) the Borrower parties have executed and
delivered certain mortgages, deeds of trust, and other security
instruments creating liens that are junior and subordinate in priority
to the liens of the Security Documents and Mortgages referred to in the
preceding paragraph. The indebtedness and obligations of the Borrower
Parties under such notes, mortgages, deeds of trust and other security
instruments are collectively referred to as the "SUBORDINATE
OBLIGATIONS." The Senior Obligations and the Subordinate Obligations
are sometimes hereinafter collectively called the "CREDIT FACILITIES."
C. The Co-Lenders and the Borrower Parties entered into that
certain Forbearance and Modification Agreement (Amended and Restated
Credit Agreement) dated March 21, 1995 (the "SENIOR FORBEARANCE AND
MODIFICATION AGREEMENT") modifying certain terms of the Amended and
Restated Credit Agreement and that certain Forbearance and Modification
Agreement (Credit Agreement) dated March 21, 1995 (the "SUBORDINATE
FORBEARANCE AND MODIFICATION AGREEMENT") modifying certain terms of the
Credit Agreement. The Senior Forbearance and Modification Agreement the
Subordinate Forbearance and Modification Agreement have been modified by
certain letter agreements between the Co-Lenders and the Borrower
Parties dated October 3, 1995, October 31, 1995, March 28, 1996, June 3,
1996 and June 6, 1996.
D. The Senior Forbearance and Modification Agreement and the
Subordinate Forbearance and Modification Agreement were further amended
by that certain AMENDMENT TO FORBEARANCE AND MODIFICATION AGREEMENTS
dated September 24, 1996 (the "Previous Amendment"), pursuant to which
the Co-Lenders agreed, among other things, to forbear from exercising
certain rights and remedies for Borrower's Defaults until March 31,
1997.
E. The Borrower Parties' obligations under the Credit Agreement
and the Amended and Restated Credit Agreement remain in default. The
agreement to forbear as set forth in the Previous Amendment has expired
and the Co-Lenders have no further obligation to continue to forbear.
The Borrower Parties have requested an extension of the forbearance
period under the Previous Amendment to June 30, 1997, and the Co-Lenders
desire to grant such an extension.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing recitals, the
mutual covenants, agreements, representations and warranties set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows;
SECTION 1. AMENDMENT.
(a) TERMINATION DATE. Subsection (i) of SECTION 1 (c) of
the Previous Amendment is hereby amended in its entirety to read as
follows:
"(i) The close of business on June 30, 1997."
(b) NEW CASH FLOW PROJECTIONS. The Cash Flow Projections
set forth on Exhibit I attached hereto shall be substituted for the Cash
Flow Projections attached as Exhibit A to the Previous Amendment. All
references to "Cash Flow Projections" shall be deemed to refer to the
Cash Flow Projections attached hereto as Exhibit I.
(c) FORGIVENESS DATE. The first sentence of Section 7(c)
of the Previous Amendment shall be revised to refer to "June 30, 1997,"
rather than "March 31, 1997," so that such sentence shall read as
follows:
"(c) The Co-Lenders agree to forgive, waive and relinquish
all of the then unpaid principal balances of the Credit Facilities
together with all then accrued and unpaid interest thereon, all then
accrued and unpaid letter of credit fees and all other amounts then
owing and unpaid in respect of the Credit Facilities, upon the
Forgiveness Date (as defined below); provided, however, that if the
Forgiveness Date has not occurred by June 30, 1997, then the Co-Lenders'
obligations under this Section 7(c) shall terminate and the forgiveness,
waiver and relinquishment set forth in this Secion 7(c) shall be null
and void and of no force or effect; provided further, that the Co-
Lenders' agreement is made subject to the express condition subsequent
that Borrower shall fully and timely satisfy its obligations under
Section 7(d) below."
SECTION 2. PRIOR AGREEMENTS:
(a) Except as modified hereby, the Forbearance Agreements, the
Credit Agreement, the Amended and Restated Credit Agreement, the
Previous Amendment and all other agreements between the Co-Lenders and
the Borrower Parties relating to the Senior Obligations and the
Subordinate Obligations (collectively, the "AMENDED AGREEMENT") shall
remain in full force and effect.
(b) Notwithstanding any other provision hereof, Section 2.04 of
the Senior Forbearance and Modification Agreement shall remain in effect
and shall supersede any provision hereof. Specifically, this Amendment
shall not constitute a written agreement granting to the Borrower
Parties any rights to the forbearance of the Co-Lenders.
SECTION 3. MISCELLANEOUS.
(a) This Amendment is subject to the provisions of Section 9.29
of the Forbearance Agreements.
(b) This Amendment may be executed in counterparts, and all
counterparts shall constitute but one and the same document.
(c) If any court of competent jurisdiction determines any
provisions of this Amendment to be invalid, illegal or unenforceable,
that portion shall be deemed severed from the remainder of this
Amendment and the remainder of this Amendment shall remain in full force
and effect as though such invalid, illegal or unenforceable portion had
never been a part of this Amendment.
(d) Time is of the essence of this Amendment and each and every
provision hereof.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date first written above.
ARVIDA/JMB PARTNERS, L.P.-II
a Delaware limited partnership
By: Arvida/JMB Managers-II, Inc.,
General Partner
By: s/Stephen A. Lovelette
Name: STEPHEN A. LOVELETTE
Title:
HEATHROW DEVELOPMENT ASSOCIATES, LTD.,
a Florida limited partnership
By: Arvida/JMB Partners, L.P.-II,
General Partner
By: Arvida/JMB Managers-II, Inc.,
General Partner
By: s/Stephen A. Lovelette
Name: STEPHEN A. LOVELETTE
Title:
EAGLE WATCH PARTNERS,
a Georgia general partnership
By: Arvida/JMB Partners, L.P.-II,
General Partner
By: Arvida/JMB Managers-II, Inc.,
General Partner
By: s/Stephen A. Lovelette
Name: STEPHEN A. LOVELETTE
Title:
BANK OF AMERICA ILLINOIS,
an Illinois banking corporation
in its capacity as Managing Co-Agent
By: s/Charles D. Graber
Name: CHARLES D. GRABER
Title: Vice President
BANK OF AMERICA ILLINOIS
an Illinois banking corporation
in all capacties hereunder other
than as Managing Co-Agent
By: s/
Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
a national banking association
By: s/
Name:
Title:
By: s/
Name:
Title:
EXHIBIT I
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CASH FLOW PROJECTIONS
ARVIDA/JMB PARTNERS II CASH FLOW PROJECTIONS
REVENUE:(000's) JULY AUG SEPT OCT
- ---------------------- ------ ------ ------
1 Heathrow
Waters Edge
SFR's 0 0 0 0
2 Heathrow
Lakeside
SFR's 0 0 0 0
3 Heathrow
Water's
Edge Lots 0 0 0 0
4 Heathrow
Lakeside
Lots 0 0 0 0
5 Heathrow
Wyntree Lots-
Retail 0 0 0 0
6 Heathrow
Stonebridge
Lots-Retail 0 0 0 0
7 Heathrow
Woods I Lots-
Retail 0 0 0 0
8 Heathrow
Woods II-Raw
Land 0 0 0 0
9 Heathrow Tract
26-Raw Land 0 0 0 0
10 Heathrow Tract
5-Raw Land 0 0 0 0
11 Heathrow Raw
Land-All Other 0 50 0 0
------ ------ ------ ------
Subtotal
Heathrow
Land &
SFR's 0 50 0 0
------ ------ ------ ------
12 Heathrow
Market
Square 30 30 (120) 30
13 Heathrow
Golf Club 0 0 0 0
14 Heathrow
Sales
Center 0 0 0 0
15 Heathrow
Cable 0 0 0 0
------ ------ ------ ------
Subtotal
Heathrow
Operating
Property 30 30 (120) 30
------ ------ ------ ------
16 Wesmer SFR's 0 0 90 0
17 Wesmer Land 0 0 0 0
------ ------ ------ ------
Subtotal
Wesmore 0 0 90 0
------ ------ ------ ------
ARVIDA/JMB PARTNERS II CASH FLOW PROJECTIONS
REVENUE:(000's) JULY AUG SEPT OCT
- ---------------------- ------ ------ ------
18 Eagle Watch
Lots-Retail
(Atlanta) 0 30 30 30
19 Rock Creek
Lots-Retail
(Atlanta) 0 0 0 0
------ ------ ------ ------
Subtotal
Atlanta
Projects 0 30 30 30
------ ------ ------ ------
20 Other Income 0 0 0 0
21 Talega 0 0 0 0
------ ------ ------ ------
Total Revenue 30 110 0 60
====== ====== ====== ======
ARVIDA/JMB PARTNERS II CASH FLOW PROJECTIONS
REVENUE:(000's) NOV DEC JAN FEB
- ---------------------- ------ ------ ------
1 Heathrow
Waters Edge
SFR's 0 0 0 0
2 Heathrow
Lakeside
SFR's 0 0 0 0
3 Heathrow
Water's
Edge Lots 0 0 0 0
4 Heathrow
Lakeside
Lots 0 0 0 0
5 Heathrow
Wyntree Lots-
Retail 0 0 0 0
6 Heathrow
Stonebridge
Lots-Retail 0 0 0 0
7 Heathrow
Woods I Lots-
Retail 0 0 0 0
8 Heathrow
Woods II-Raw
Land 0 0 0 0
9 Heathrow Tract
26-Raw Land 0 0 0 0
10 Heathrow Tract
5-Raw Land 0 0 0 0
11 Heathrow Raw
Land-All Other 0 0 0 0
------ ------ ------ ------
Subtotal
Heathrow
Land &
SFR's 0 0 0 0
------ ------ ------ ------
12 Heathrow
Market
Square 5,000 0 0 0
13 Heathrow
Golf Club 0 0 0 0
14 Heathrow
Sales
Center 0 0 0 0
15 Heathrow
Cable 0 0 0 0
------ ------ ------ ------
Subtotal
Heathrow
Operating
Property 5,000 0 0 0
------ ------ ------ ------
16 Wesmer SFR's 0 0 0 0
17 Wesmer Land 0 0 0 0
------ ------ ------ ------
Subtotal
Wesmore 0 0 0 0
------ ------ ------ ------
ARVIDA/JMB PARTNERS II CASH FLOW PROJECTIONS
REVENUE:(000's) NOV DEC JAN FEB
- ---------------------- ------ ------ ------
18 Eagle Watch
Lots-Retail
(Atlanta) 0 0 0 0
19 Rock Creek
Lots-Retail
(Atlanta) 0 0 0 0
------ ------ ------ ------
Subtotal
Atlanta
Projects 0 0 0 0
------ ------ ------ ------
20 Other Income 0 0 0 0
21 Talega 0 0 0 11,000
------ ------ ------ ------
Total Revenue 5,000 0 0 11,000
====== ====== ====== ======
ARVIDA/JMB PARTNERS II CASH FLOW PROJECTIONS
SUBTOTAL ACTUALS
REVENUES:(000's) MAR BUDGET JUL-FEB MAR
- ---------------------- ------ ------ ------
1 Heathrow
Waters Edge
SFR's 0 0 0 0
2 Heathrow
Lakeside
SFR's 0 0 0 0
3 Heathrow
Water's
Edge Lots 0 0 0 0
4 Heathrow
Lakeside
Lots 0 0 0 0
5 Heathrow
Wyntree Lots-
Retail 0 0 0 0
6 Heathrow
Stonebridge
Lots-Retail 0 0 0 0
7 Heathrow
Woods I Lots-
Retail 0 0 0 0
8 Heathrow
Woods II-Raw
Land 0 0 0 0
9 Heathrow Tract
26-Raw Land 0 0 0 0
10 Heathrow Tract
5-Raw Land 0 0 0 0
11 Heathrow Raw
Land-All Other 0 50 0 0
------ ------ ------ ------
Subtotal
Heathrow
Land &
SFR's 0 50 0 0
------ ------ ------ ------
12 Heathrow
Market
Square 0 4,970 209 30
13 Heathrow
Golf Club 0 0 85 0
14 Heathrow
Sales
Center 0 0 0 0
15 Heathrow
Cable 0 0 0 0
------ ------ ------ ------
Subtotal
Heathrow
Operating
Property 0 4,970 294 30
------ ------ ------ ------
16 Wesmer SFR's 0 90 0 0
17 Wesmer Land 0 0 0 0
------ ------ ------ ------
Subtotal
Wesmore 0 90 0 0
------ ------ ------ ------
ARVIDA/JMB PARTNERS II CASH FLOW PROJECTIONS
SUBTOTAL ACTUALS
REVENUES:(000's) MAR BUDGET JUL-FEB MAR
- ---------------------- ------ ------ ------
18 Eagle Watch
Lots-Retail
(Atlanta) 0 90 0 0
19 Rock Creek
Lots-Retail
(Atlanta) 0 0 0 0
------ ------ ------ ------
Subtotal
Atlanta
Projects 0 90 0 0
------ ------ ------ ------
20 Other Income 0 0 131 0
21 Talega 0 11,000 66 0
------ ------ ------ ------
Total Revenue 0 16,200 491 30
====== ====== ====== ======
ARVIDA/JMB PARTNERS II CASH FLOW PROJECTIONS
FORECAST BUDGET SUBTOTAL
REVENUES:(000's) APR MAY JUNE FORECAST
- ---------------------- ------ ------ ------
1 Heathrow
Waters Edge
SFR's 0 0 0 0
2 Heathrow
Lakeside
SFR's 0 0 0 0
3 Heathrow
Water's
Edge Lots 0 0 0 0
4 Heathrow
Lakeside
Lots 0 0 0 0
5 Heathrow
Wyntree Lots-
Retail 0 0 0 0
6 Heathrow
Stonebridge
Lots-Retail 0 0 0 0
7 Heathrow
Woods I Lots-
Retail 0 0 0 0
8 Heathrow
Woods II-Raw
Land 0 0 0 0
9 Heathrow Tract
26-Raw Land 0 0 0 0
10 Heathrow Tract
5-Raw Land 0 0 0 0
11 Heathrow Raw
Land-All Other 0 0 0 0
------ ------ ------ ------
Subtotal
Heathrow
Land &
SFR's 0 0 0 0
------ ------ ------ ------
12 Heathrow
Market
Square 30 30 5,000 5,090
13 Heathrow
Golf Club 0 0 0 0
14 Heathrow
Sales
Center 0 0 0 0
15 Heathrow
Cable 0 0 0 0
------ ------ ------ ------
Subtotal
Heathrow
Operating
Property 30 30 5,000 5,090
------ ------ ------ ------
16 Wesmer SFR's 0 100 0 100
17 Wesmer Land 0 0 0 0
------ ------ ------ ------
Subtotal
Wesmore 0 100 0 100
------ ------ ------ ------
ARVIDA/JMB PARTNERS II CASH FLOW PROJECTIONS
FORECAST BUDGET SUBTOTAL
REVENUES:(000's) APR MAY JUNE FORECAST
- ---------------------- ------ ------ ------
18 Eagle Watch
Lots-Retail
(Atlanta) 0 60 0 60
19 Rock Creek
Lots-Retail
(Atlanta) 0 0 0 0
------ ------ ------ ------
Subtotal
Atlanta
Projects 0 60 0 60
------ ------ ------ ------
20 Other Income 0 0 0 0
21 Talega *20,600 0 0 20,600
------ ------ ------ ------
Total Revenue 20,630 190 5,000 25,850
====== ====== ====== ======
ARVIDA/JMB PARTNERS II CASH FLOW PROJECTIONS
EXPENSE:(000's) JULY AUG SEPT OCT
- ---------------------- ------ ------ ------
22 Lake 500A
Grading 160 5 0 0
23 Tract C-
Roadway 0 0 0 0
------ ------ ------ ------
Total
Development 160 5 0 0
====== ====== ====== ======
24 Real Estate
Taxes 0 0 0 0
25 Insurance 30 0 0 30
26 Marketing/
Sales Office
Expense 0 0 0 0
27 Homeowners
Assoc.
Deficit 0 0 0 0
28 Eagle Watch
Maintenance 3 3 3 3
29 Talega
Maintenance 30 30 30 30
30 Audit & Tax 0 0 0 0
31 Warranty 10 10 10 0
------ ------ ------ ------
Total
Indirects 233 48 43 63
------ ------ ------ ------
32 Litigation 0 175 50 50
33 Overhead 75 40 90 40
------ ------ ------ ------
Total Expenses 488 93 133 103
====== ====== ====== ======
Net Cash Flow (438) 17 (133) (43)
====== ====== ====== ======
ARVIDA/JMB PARTNERS II CASH FLOW PROJECTIONS
EXPENSE:(000's) NOV DEC JAN FEB
- ---------------------- ------ ------ ------
22 Lake 500A
Grading 0 0 0 0
23 Tract C-
Roadway 0 0 0 0
------ ------ ------ ------
Total
Development 0 0 0 0
====== ====== ====== ======
24 Real Estate
Taxes 0 0 0 0
25 Insurance 0 0 30 0
26 Marketing/
Sales Office
Expense 0 0 0 0
27 Homeowners
Assoc.
Deficit 0 0 0 0
28 Eagle Watch
Maintenance 0 0 0 0
29 Talega
Maintenance 30 30 30 0
30 Audit & Tax 0 15 15 45
31 Warranty 0 0 0 0
------ ------ ------ ------
Total
Indirects 30 45 75 45
------ ------ ------ ------
32 Litigation 50 50 50 50
33 Overhead 40 90 40 40
------ ------ ------ ------
Total Expenses 70 136 115 86
====== ====== ====== ======
Net Cash Flow 4,930 (136) (115) 10,915
====== ====== ====== ======
ARVIDA/JMB PARTNERS II CASH FLOW PROJECTIONS
SUBTOTAL ACTUALS
REVENUES:(000's) MAR BUDGET JUL-FEB MAR
- ---------------------- ------ ------ ------
22 Lake 500A
Grading 0 165 150 0
23 Tract C-
Roadway 0 0 (24) 0
------ ------ ------ ------
Total
Development 0 165 128 0
====== ====== ====== ======
24 Real Estate
Taxes 0 0 (57) 81
25 Insurance 0 90 43 0
26 Marketing/
Sales Office
Expense 0 0 (1) 0
27 Homeowners
Assoc.
Deficit 0 0 0 5
28 Eagle Watch
Maintenance 0 12 7 0
29 Talega
Maintenance 0 210 224 30
30 Audit & Tax 50 125 42 10
31 Warranty 0 30 19 5
------ ------ ------ ------
Total
Indirects 50 832 403 141
------ ------ ------ ------
32 Litigation 50 525 81 0
33 Overhead 285 720 343 50
------ ------ ------ ------
Total Expenses 316 1,877 827 191
====== ====== ====== ======
Net Cash Flow (316) 14,321 (336) (191)
====== ====== ====== ======
ARVIDA/JMB PARTNERS II CASH FLOW PROJECTIONS
FORECAST BUDGET SUBTOTAL
REVENUES:(000's) APR MAY JUNE FORECAST
- ---------------------- ------ ------ ------
22 Lake 500A
Grading 0 0 0 0
23 Tract C-
Roadway 0 0 0 0
------ ------ ------ ------
Total
Development 0 0 0 0
====== ====== ====== ======
24 Real Estate
Taxes 0 0 0 81
25 Insurance 20 0 10 30
26 Marketing/
Sales Office
Expense 0 0 0 0
27 Homeowners
Assoc.
Deficit 0 0 0 15
28 Eagle Watch
Maintenance 1 0 0 1
29 Talega
Maintenance 30 0 0 60
30 Audit & Tax 0 15 0 25
31 Warranty 5 5 5 20
------ ------ ------ ------
Total
Indirects 58 20 15 232
------ ------ ------ ------
32 Litigation 180 85 135 400
33 Overhead 16 16 56 138
------ ------ ------ ------
Total Expenses 262 121 206 770
====== ====== ====== ======
Net Cash Flow 20,378 69 4,794 25,080
====== ====== ====== ======
<FN>
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*Sale did not occur in April; It is anticipated to occur on or about May
30, 1997 with $19,000 in Revenues.