EXHIBIT 4.19
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(Arvida II)
ASSIGNMENT
THIS ASSIGNMENT (this "Assignment") is dated for identification
purposes as of December 31, 1997 (the "Effective Date") by ARVIDA/JMB
PARTNERS, L.P. - II, a Delaware limited partnership ("Borrower"), in favor
of 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").
RECITALS
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As of June 23, 1992, the Bank extended certain loans (the "Credit
Facilities") to Borrower which were secured by liens on certain real and
personal property of Borrower. Borrower has defaulted on its obligations
under the Credit Facilities. As of the Effective Date hereof, Borrower is
indebted to the Bank in an amount approximately equal to SEVENTY-FIVE
MILLION, SIX HUNDRED TWENTY-FOUR THOUSAND, ONE HUNDRED THIRTY-TWO
AND
12/100 DOLLARS ($75,624,132.12), including unpaid principal and interest
accrued thereon, plus any and all fees and expenses owed to the Bank in
connection with the Credit Facilities (collectively, "Borrower's
Outstanding Debt").
Concurrently herewith, the Bank and Borrower have entered into a
Settlement and Release Agreement (the "Settlement Agreement") providing for
forgiveness of the Borrower's Outstanding Debt upon satisfaction of certain
conditions precedent, including, but not limited to, assignment to the Bank
of all of Borrower's right, title and interest in and to (i) any proceeds
of 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"), and (ii) all other remaining assets of Borrower ("BORROWER'S
ASSETS"). Borrower's obligation to assign Borrower's Assets to the Bank is
subject to Borrower's right to retain certain assets (the "EXCLUDED
ASSETS") as more particularly set forth herein.
A. Pursuant to the Settlement Agreement, Borrower hereby desires
to assign the proceeds of the Palm Beach Claim and Borrower's Assets (other
than the Excluded Assets) to the Bank, and the Bank hereby desires to
accept such assignment of the proceeds of the Palm Beach Claim and
Borrower's Assets (other than the Excluded Assets), 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, including the Bank's forgiveness of Borrower's Outstanding
Debt, the parties hereby agree as follows:
1. ASSIGNMENT OF BORROWER'S ASSETS.
(a) As of the Effective Date, Borrower hereby absolutely
assigns, conveys and transfers to the Bank, and the Bank hereby accepts
from Borrower, all of Borrower's right, title and interest in and to
Borrower's Assets, other than the "Excluded Assets" (as defined in SECTION
1(b) below), including, but not limited to, Borrower's right, title and
interest in and to the proceeds of any judgment (including interest
thereon) awarded to Borrower in the Palm Beach Claim and all other assets
listed on SCHEDULE "1" attached hereto (hereinafter, the "ASSIGNED
ASSETS").
(b) The Bank and Borrower hereby acknowledge and agree that
the Assigned Assets do not include the "EXCLUDED ASSETS" listed on SCHEDULE
"2" attached hereto. Borrower shall be entitled to retain all of its
right, title and interest in and to the Excluded Assets in order to fund
Borrower's dissolution expenses as well as Borrower's expenses related to
defending that 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"), provided however, that if any portion of
such Excluded Assets (the "Surplus Assets") shall remain as an asset of
Borrower after payment of all expenses relating to, or arising out of the
dissolution and winding up of the affairs of the Borrower's partnership,
including but not limited to any expenses or liabilities arising from the
Heathrow Litigation, such Surplus Assets shall be assigned to the Bank as
further consideration for the Bank's forgiveness of Borrower's Outstanding
Debt.
2. THE PALM BEACH CLAIM.
(a) In connection with Borrower's assignment of the proceeds
from the Palm Beach Claim set forth in SECTION 1(a) above, Borrower agrees
to continue to prosecute the Palm Beach Claim on behalf of the Bank until
such time as a "Final Judgment" (as defined below) is entered in the Palm
Beach Claim, except as hereinafter provided. In the event that Borrower
desires to enter into a proposed settlement of the Palm Beach Claim prior
to Final Judgement, Borrower shall present the terms of any proposed
settlement to the Bank and Bank shall have a period of thirty (30) days
after receipt of written notice of such proposed settlement terms to
disapprove the settlement. If the Bank fails to notify Borrower by the end
of such thirty (30) day period of its approval or disapproval of any such
settlement, the Bank shall be deemed to have approved such settlement. If
the Bank does so notify Borrower of its disapproval of the settlement
within such thirty day (30) period, Borrower may then assign the Palm Beach
Claim directly to the Bank, and the Bank shall assume such claim, in which
case Borrower shall have no further obligation to prosecute the Palm Beach
Claim on behalf of the Bank. Furthermore, in the event that the Palm Beach
Claim is so assigned to the Bank, the Bank shall indemnify Borrower from
any liability to pay (i) the opposing party's attorneys fees and expenses
which may be assessed against Borrower, and (ii) any further liability to
Borrower's Litigation Counsel for any fees and expenses incurred in
connection with the Palm Beach Claim after the date on which the Bank so
assumes the Palm Beach Claim. For purposes of this Assignment, "Final
Judgment" shall be defined as the point at which judgment has been entered
by the court on all claims filed by Borrower in the matter, and any
applicable period for filing an appeal of such judgment has subsequently
expired.
(b) Borrower hereby discloses to the Bank that Borrower has
entered into a contingent attorneys' fee arrangement with its attorneys in
the Palm Beach Claim, Bienstock and Clark of Miami, Florida, and Levy and
Goodwin of Columbia, South Carolina (collectively, "Borrower's Litigation
Counsel"). A copy of the Attorneys' Fee Agreement dated September 17, 1993
between Borrower and Borrower's Litigation Counsel is attached hereto as
ATTACHMENT "A." Pursuant to the Attorneys' Fee Agreement, Borrower's
Litigation Counsel are entitled to payment of their professional fees and
expenses from the proceeds of any judgment awarded to Borrower in
connection with the Palm Beach Claim. The Bank hereby acknowledges and
agrees that Borrower's assignment of the proceeds of the Palm Beach Claim
is subject to the terms of the Attorneys' Fee Agreement. Therefore, Bank
acknowledges that the rights of Borrower's Litigation Counsel have priority
over the Bank's right, title and interest in the proceeds of the Palm Beach
Claim. Notwithstanding the foregoing, Bank shall not be obligated to pay
any fees and expenses of Borrower's Litigation Counsel except as
specifically set forth in the Attorneys' Fee Agreement or as otherwise
provided in SECTION 2(a) above.
(c) Borrower and the Bank agree that the assignments set
forth herein shall not include an assignment of the Attorneys' Fee
Agreement to the Bank. No attorney-client relationship exists, nor shall
be deemed to be created, between Borrower's Litigation Counsel and the
Bank.
3. POWER OF ATTORNEY. As of the Effective Date hereof, Borrower
hereby irrevocably constitutes and appoints the Bank as Borrower's true and
lawful attorney, with full power of substitution, in Borrower's name and
stead, but on behalf and for the benefit of the Bank, to prosecute from
time to time in its name or otherwise, any and all proceedings at law, in
equity or otherwise which the Bank may deem proper for the collection and
enforcement of any claim or right of any kind hereby assigned, granted,
transferred or set over.
4. FURTHER ASSURANCES. Borrower will, whenever and as often as it
shall be requested to do so by the Bank, execute, acknowledge and deliver,
or cause to be executed, acknowledged and delivered, any and all such
further assignments and any and all other documents and do any and all
other acts as may be necessary to carry out the intent and purpose of this
Assignment.
5. REPRESENTATIONS AND WARRANTIES OF BORROWER.
(a) Borrower hereby represents and warrants to the Bank that
the Excluded Assets and the Assigned Assets (including Borrower's right,
title and interest in the Palm Beach Claim) constitute all of Borrower's
Assets as of the Effective Date hereof, whether Borrower's right, title and
interest in and to such assets is contingent as of the Effective Date or
not.
(b) Except as otherwise indicated on Schedule "1" attached
hereto, Borrower is the sole owner and holder of all right, title and
interest in the Assigned Assets and has the full right, power and authority
to assign the Assigned Assets and the Palm Beach Claim to the Bank.
6. BINDING EFFECT. This Assignment shall be binding upon and
inure to the benefit of the Bank and Borrower and their respective
successors and assigns.
7. EXCULPATION. This Assignment is subject to the provisions of
Section 9.29 of the Forbearance Agreements, which are incorporated by
reference herein.
8. COUNTERPARTS. This Assignment 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.
9. GOVERNING LAW. The validity, interpretation, enforceability,
and performance of this Assignment 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:________________________
SCHEDULE "1"
Assigned Assets
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1. Cash and cash equivalents $497,773.54 (a)
2. Proceeds of the Palm Beach Claim Amount Unspecified(b)
3. Collateral for open claims under worker's
compensation insurance (held in trust by
LaSalle National Bank for the benefit
of Home Insurance Co.) $ 95,455.00
4. Accounts Receivable from Santa Margarita
Water District $618,397.00(c)
5. Accounts Receivable from Heathrow Golf
and Country Club $ 45,261.53(d)
6. Proceeds from sale of Eagle Watch Lot $ 13,977.30(e)
7. Home Buyers Warranty Program Deposit $ 10,000.00
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(a) Cash on deposit with Bank of America in Account #71-11185, plus any
other cash or cash equivalent belonging to the Borrower whether held by the
Bank or otherwise, less disbursement to Borrower of $474,450.00.
(b) Borrower makes no representation regarding the amount of the proceeds
which the Bank is likely to recover, and shall have no liability to the
Bank if the amount of proceeds so recovered does not equal this estimated
amount. Moreover, Borrower's interest in such proceeds remains subject to
the Attorneys' Fee Agreement attached hereto as Attachment "A" which
provides that Borrower's Litigation Counsel shall be entitled to 50% of any
judgment awarded in the matter (less the amount of any fees or expenses
previously paid to Borrower's Litigation Counsel by either Borrower or the
Bank).
(c) These accounts receivable may be subject to that certain Compromise
Settlement and Mutual Release Agreement by and between Borrower and Santa
Margarita Water District. The Bank has been provided a copy of such
Compromise Settlement and Mutual Release Agreement and is fully aware of
its terms.
(d) Accounts Receivables over 18 months old. These accounts have been
placed with Windham Associates collection agency, which will retain 50% of
any amounts recovered.
(e) Purchase Price of $14,000 less recording fees and transfer taxes. In
the event that this amount is paid over to the Bank as a principal
reduction payment after the Effective Date hereof, the Bank shall reduce
the amount of Borrower's Outstanding Debt to be forgiven by a corresponding
amount.
SCHEDULE "2"
Excluded Assets
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A. Cash reserves disbursed by the Bank $474,050.00
(Account # 71-11185)
B. Cash collateral, plus interest thereon, $ 96,596.00
held by the Bank related to certain
performance bonds
(Account # 12-18433)
C. Insurance claim against Awkright $283,864.04
Insurance Company related to
Heathrow Shops
ATTACHMENT "A"
Attorneys' Fee Agreement
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