EXHIBIT 4.18
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(Arvida II)
SETTLEMENT AND RELEASE AGREEMENT
THIS SETTLEMENT AND RELEASE AGREEMENT (this "Agreement"), dated for
identification purposes as of December 31, 1997 (the "Effective Date"), has
been entered into by and between ARVIDA/JMB PARTNERS, L.P. - II, a Delaware
limited partnership ("Borrower"), and BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, a national banking association, as successor by merger
to Bank of America Illinois, formerly known as Continental Bank, N.A. and
Continental Bank (the "Bank") in its capacities as (i) 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
(ii) as Agent and Lender under the Credit Agreement (as defined herein).
RECITALS
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The Bank and Borrower entered into that certain Amended and Restated
Credit Agreement dated as of June 23, 1992 (the "AMENDED AND RESTATED
CREDIT AGREEMENT"), pursuant to which Borrower executed and delivered
certain promissory notes in the aggregate principal amount of
$130,698,161.30 (the "Senior Obligations"). The Bank and Borrower also
entered into that certain Credit Agreement dated as of June 23, 1992 (the
"CREDIT AGREEMENT"), pursuant to which Borrower executed and delivered
certain promissory notes in the aggregate principal amount of
$14,301,838.70 (the "Subordinate Obligations"). The Senior Obligations and
the Subordinate Obligations are hereinafter collectively called the "CREDIT
FACILITIES." The Credit Facilities are, or were, secured by mortgages,
deeds of trust, and other security instruments creating liens on certain
real and personal property of Borrower.
As a result of Borrower's default of its obligations under the Credit
Facilities, the Bank and Borrower entered into (i) that certain Forbearance
and Modification Agreement (Amended and Restated Credit Agreement) dated as
of March 21, 1995 (the "SENIOR FORBEARANCE AND MODIFICATION AGREEMENT")
modifying certain terms of the Amended and Restated Credit Agreement, and
(ii) that certain Forbearance and Modification Agreement (Credit Agreement)
dated as of March 21, 1995 (the "SUBORDINATE FORBEARANCE AND MODIFICATION
AGREEMENT") modifying certain terms of the Credit Agreement. The Senior
Forbearance and Modification Agreement and the Subordinate Forbearance and
Modification Agreement were then modified by (I) those certain letter
agreements between the Bank and Borrower dated October 3, 1995,
October 31, 1995, March 28, 1996, June 3, 1996 and June 6, 1996
(collectively, the "LETTER AGREEMENTS"), (II) that certain Amendment of
Forbearance and Modification Agreements dated as of September 24, 1996 (the
"FIRST AMENDMENT"), and (III) that certain Second Amendment to Forbearance
Agreement and Third Amendment to Modification Agreements dated as of
May 13, 1997 (the "SECOND AMENDMENT"). The Senior Forbearance and
Modification Agreement and the Subordinate Forbearance and Modification
Agreement, as modified by the Letter Agreements, the First Amendment, and
the Second Amendment shall hereinafter be collectively referred to as the
"FORBEARANCE AGREEMENTS."
Pursuant to the Forbearance Agreements, the Bank agreed, among other
things, to forgive Borrower's remaining indebtedness to the Bank, including
all unpaid principal, accrued interest and fees and expenses related to the
Credit Facilities (collectively, "Borrower's Outstanding Debt") upon
satisfaction of certain conditions set forth in the First Amendment,
including but not limited to: (a) Borrower's delivery to the Bank of
principal reduction payments in an aggregate amount of not less than
FOURTEEN MILLION THREE HUNDRED TWENTY-THREE THOUSAND AND NO/100
DOLLARS
($14,323,000.00) (collectively, the "PRINCIPAL REDUCTION PAYMENT"), and
(b) assignment to the Bank of all of Borrower's remaining assets
("BORROWER'S ASSETS"), including but not limited to all of Borrower's
right, title, and interest in and to a claim filed by Borrower in that
certain Chapter 11 bankruptcy proceeding entitled IN RE LANDMARK LAND
COMPANY OF FLORIDA INC. (Civil Action No. 2:91-3291-1/5291-1), currently
pending in the U.S. District Court for South Carolina (Charleston Div.)
sitting in bankruptcy (the "PALM BEACH CLAIM"). The Agreements further
provided that Borrower's partnership would be dissolved as quickly as
possible following assignment of Borrower's Assets to the Bank and
forgiveness of Borrower's Outstanding Debt.
By an oral agreement between Borrower and the Bank, the Bank has
agreed to allow Borrower to delay partnership dissolution until certain
litigation filed against Borrower and other related Arvida/JMB companies
entitled LAND INVESTMENT I, LTD. ET. AL. V. ARVIDA/JMB MANAGERS-II, INC.
(Fla. Cir. Ct., Seminole County, Case No: 96-0062-CA-15-B)(the "HEATHROW
LITIGATION") has been finally resolved. The Bank has further agreed to
allow Borrower to retain certain "Excluded Assets" (as defined in the
Assignment attached hereto as EXHIBIT "A") from Borrower's Assets to be
assigned to the Bank in order to fund Borrower's dissolution expenses as
well as Borrower's expenses related to defending the Heathrow litigation,
subject to Borrower's acknowledgement that the Bank has no obligation to
provide any funds other than the Excluded Assets to Borrower for payment of
such expenses. Finally, the Bank has agreed to take an assignment of
Borrower's interest in the proceeds of the Palm Beach Claim, rather than an
assignment of the claim itself, subject to the Borrower's agreement to
continue to prosecute the claim on the Bank's behalf as set forth in the
Assignment (as hereinafter defined).
Borrower has delivered the Principal Reduction Payment to the Bank,
such that Borrower's Outstanding Debt as of the Effective Date is
approximately equal to $75,624,132.12. The Bank and Borrower now desire to
provide for forgiveness of Borrower's Outstanding Debt, and satisfaction of
any remaining conditions thereto, all on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing recitals, the
covenants and conditions contained herein, and other good and valuable
consideration, the parties agree as follows:
1. DEBT FORGIVENESS.
(a) The Bank hereby confirms that Borrower's Outstanding Debt
has been forgiven as of the Effective Date hereof, subject to satisfaction
of the conditions set forth in SECTION 2 below, and further subject to the
provisions of SECTION 1(b) below.
(b) In the event that the Bank is required to return any
payments received from Borrower or assets assigned hereby (collectively,
the "Disgorged Assets"), whether such Disgorged Assets are returned to
Borrower, Borrower's estate in bankruptcy, any creditor of Borrower, or any
other party, then Borrower's Outstanding Debt shall be immediately
reinstated to the extent of the value of such Disgorged Assets (the
"Reinstated Amount") and the Bank shall be entitled to payment of such
Reinstated Amount as if such Reinstated Amount had remained unpaid and
outstanding after the Effective Date hereof.
2. CONDITIONS. The following shall constitute conditions
precedent to the Bank's forgiveness of Borrower's Outstanding Debt as set
forth in SECTION 1 above, which such conditions shall be deemed satisfied
as of December 31, 1997:
(a) Borrower shall have executed and delivered to the Bank an
assignment of assets (the "Assignment") in the form attached hereto as
EXHIBIT A;
(b) Borrower shall have provided to the Bank an Opinion of
Borrower's Counsel in the form attached hereto as EXHIBIT B;
(c) Borrower shall deliver a Release in the form attached
hereto as EXHIBIT C executed on behalf of its general partner, Arvida/JMB
Managers II, Inc., and its affiliates Arvida Company and JMB Realty
Corporation; and
(d) Borrower's representations and warranties as set forth
herein and in Section 5 of the Assignment shall be true and correct as of
February 20, 1998.
3. DISSOLUTION OF THE PARTNERSHIP. The Bank acknowledges and
agrees that Borrower may delay termination of its partnership until such
time as the Heathrow Litigation is finally resolved. Notwithstanding the
foregoing, Borrower acknowledges and agrees that its sole business from and
after the Effective Date hereof shall be the winding up of the affairs of
Borrower's partnership and that Borrower shall in no event undertake any
subsequent business activity, or incur any further indebtedness not
directly related to winding up Borrower's partnership. In consideration
for the Bank's agreement to allow Borrower to retain the Excluded Assets,
Borrower further acknowledges and agrees that the Bank shall have no
further obligation to disburse any funds to Borrower for payment of any
expenses incurred in connection with: (i) the dissolution of Borrower,
(ii) defense or settlement of, or payment of any judgments awarded in, the
Heathrow Litigation, or (iii) any other expense incurred by Borrower after
the Effective Date, including any subsequent litigation expenses.
4. BORROWER'S RELEASE OF THE BANK.
(a) As further consideration for the Bank's agreement to forgive
Borrower's Outstanding Debt as set forth in SECTION 1 above, Borrower,
acting on behalf of itself, its subsidiaries and affiliates, and each of
their successors and assigns, partners, officers, employees, managers,
attorneys, accountants, agents, and servants, hereby releases and forever
discharges the Bank and its participants and assigns, and each of their
successors, assigns, parents, subsidiaries and affiliates, officers,
directors, employees, managers, attorneys (including in-house attorneys),
accountants, agents, and servants, and each of them, in all capacities,
including individually (collectively "Lender Group") from any and all
actions, liabilities, liens, debts, damages, claims, suits, judgments,
executions and demands of every kind, nature and description, including but
not limited to tort claims, that Borrower may have or hereafter may acquire
against any member of Lender Group in connection with the Credit Facilities
("Claims"), ; PROVIDED, THAT Lender Group shall not be released from any
obligations arising pursuant to this Agreement or from its conduct after
the execution of this Agreement.
(b) Borrower hereby expressly waives and relinquishes any and all
defenses and rights of offset which Borrower may have with respect to the
Assigned Assets or payment in full of Borrower's Outstanding Debt under
this Agreement, the Forbearance Agreements or any instruments delivered in
connection herewith. Borrower's waiver and relinquishment of any and all
such defenses and rights of offset expressly includes a waiver of any right
which Borrower currently has, or may in the future have, to offset any
amounts owed to Borrower for any reason, including any expenses incurred by
Borrower in connection with the Palm Beach Polo Claim, against the amount
of proceeds awarded to Borrower in connection with such Palm Beach Polo
Claim and assigned to the Bank pursuant to the Assignment. Notwithstanding
the foregoing, the Bank's right, title and interest to such proceeds shall
remain subject to the provisions of that certain Attorney's Fee Agreement
executed by and between Borrower and its litigation counsel as more
particularly set forth in Section 2(b) of the Assignment.
(b) Borrower hereby expressly waives and relinquishes any
right or benefit which Borrower has or may have under any provision of
statutory or nonstatutory law of the State of Illinois providing that a
general release does not extend to claims which the Borrower does not know
of or suspect to exist at the time of executing the release, that if known
by Borrower might materially affect Borrower's settlement with the Bank.
Borrower acknowledges that it is aware that it or its attorneys or agents
may hereafter discover facts in addition to or different from those which
they now know or believe to exist with respect to the subject matter of
this release, but that it is Borrower's intention hereby fully, finally and
forever to settle and release all of suspected or unsuspected Claims, which
now exist or may exist hereafter against Lender Group except as otherwise
expressly provided in this release. This release shall be and remain in
effect as a full and complete release notwithstanding the discovery or
existence or any such additional or different facts.
(c) Borrower warrants and represents to Lender Group that
Borrower is the sole and lawful owner of all right, title and interest in
and to all of the claims released hereby and that Borrower has not
heretofore voluntarily or involuntarily, by operation of law or otherwise,
assigned or transferred or purported to assign or transfer to any person
any such claim or any portion thereof.
(d) This release is not intended for the benefit of any
person who is not a party hereto or specifically named a beneficiary in
this release.
(e) Borrower agrees not to sue any of Lender Group or in any
way assist any other person or entity in suing any of Lender Group with
respect to any claim released herein. This release may be pleaded as a
full and complete defense to, and may be used as the basis for an
injunction against, any action, suit or other proceeding which may be
instituted, prosecuted or attempted in breach of the release contained
herein.
(f) Nothing contained herein shall be construed as an
admission by anyone of any liability of any kind.
(g) Borrower acknowledges to Lender Group that it has been
represented by independent legal counsel of its own choice throughout all
of the negotiations which preceded the execution of this release and that
it has executed this release after receiving the advice of such independent
legal counsel, and without reliance upon any promise or representation of
any person or persons acting for on behalf of any of Lender Group.
Borrower further acknowledges that it and its counsel have had adequate
opportunity to make whatever investigation or inquiry they may deem
necessary or desirable in connection with the subject matter of this
release prior to the execution of this Agreement and release. Counsel for
Borrower has read and approved the language of this release.
5. REPRESENTATIONS AND WARRANTIES OF BORROWER.
(a) Borrower is duly organized, validly existing and in good
standing under Delaware law. Borrower has all necessary power and
authority to execute and deliver this Agreement and all assignments and
other documents entered into by Borrower pursuant hereto. Borrower's
execution, delivery and performance of this Agreement and all assignments
and other documents entered into by Borrower pursuant thereto have been
authorized by all necessary partnership action.
(b) This Agreement and the Assignment have been duly executed
and delivered on behalf of Borrower and constitute valid and binding
obligations of Borrower, enforceable against Borrower in accordance with
their respective terms, subject to the effect of applicable bankruptcy and
other similar laws affecting the rights of creditors generally and the
effect of equitable principles, whether applied in an action at law or a
suit in equity. Borrower shall not in the future assert any further Claim
against the Assigned Assets.
6. TAX EFFECT OF TRANSACTION. Borrower and the Bank both
represent and warrant that they have not relied on the other party for tax
advice in connection with the transactions contemplated by this Settlement
Agreement. Borrower and the Bank both acknowledge that they are entering
into this Agreement, the Assignment and all other documents related thereto
based solely on their own determination of the possible tax effects of the
transactions contemplated hereby, and neither party has made any
representation or warranty to the other party regarding the probable
treatment of those transactions by the Internal Revenue Service or any
other taxing authority.
7. FURTHER ASSURANCES. Each party to this Agreement will,
whenever and as often as it shall be requested to do so by the other party,
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, any and all such further documents and do any and all other acts
as may be necessary to carry out the intent and purpose of this Agreement.
8. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the Bank and Borrower and their respective successors and
assigns.
9. EXCULPATION. This Agreement is subject to the provisions of
Section 9.29 of the Forbearance Agreements, which are incorporated by
reference herein.
10. ENTIRE AGREEMENT. This Agreement, with its attached Exhibits,
is intended by the parties to be the final expression of their agreement
with respect to the subject matter hereof, and is intended as the complete
and exclusive statement of the terms of the Agreement between the parties.
As such, this Agreement supersedes any prior understandings between the
parties, whether oral or written.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12. GOVERNING LAW. The validity, interpretation, enforceability,
and performance of this Agreement shall be governed by and construed in
accordance with the law of the State of Illinois, without reference to its
conflicts of law rules.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date set forth opposite their respective signatures below.
BORROWER:
Executed this _____ day of ARVIDA/JMB PARTNERS, L.P. -II, a
February, 1998 Delaware limited partnership
By: Arvida/JMB Managers II, Inc., a
Delaware corporation,
its General Partner
By: ______________________________
Name:_________________________
Title:________________________
BANK:
Executed this _____ day of BANK OF AMERICA NATIONAL TRUST
February, 1998 AND SAVINGS ASSOCIATION, a national
banking association, as successor
by merger to Bank of America
Illinois, in its capacity as
Managing Co-Agent
By: ______________________________
Name:_________________________
Title:________________________
Executed this _____ day of BANK OF AMERICA NATIONAL TRUST
February, 1998 AND SAVINGS ASSOCIATION, a national
banking association, as successor by
merger to Bank of America Illinois,
in all capacities hereunder other than
as Managing Co-Agent
By: ______________________________
Name:_________________________
Title:________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national
banking association
By: ______________________________
Name:_________________________
Title:________________________
EXHIBIT "A"
ASSIGNMENT
EXHIBIT "B"
OPINION OF BORROWER'S COUNSEL
EXHIBIT "C"
RELEASE