Exhibit 10.1
MASTER COLLATERAL ASSIGNMENT OF CONTRACT RIGHTS
THIS ASSIGNMENT is made and entered into the 13th day of March, 1997, by
XXXXX & XXXXX COMPANY, a Delaware corporation (the "Borrower"), and EACH OF
THE CORPORATIONS LISTED AS A SUBSIDIARY ON THE ATTACHED SCHEDULE I (the
"Subsidiaries" being collectively referred to herein together with the
Borrower as the "Assignors" and each individually as an "Assignor"), in favor
of PNC Bank, National Association, a national banking association
("Assignee").
WITNESSETH:
WHEREAS, pursuant to that certain Credit Agreement (as it may hereafter
from time to time be restated, amended, modified or supplemented, the "Credit
Agreement") dated March 13, 1997 between the Borrower and the Assignee, the
Assignee has agreed to provide certain loans and issue certain letters of
credit to the Borrower; and
WHEREAS, in order to provide additional security for the Borrower's
repayment and each of the other Assignor's Guaranty Agreement with respect to
repayment of such loans, the parties hereto desire that Assignee be granted
an assignment and security interest in all rights of each Assignor under
those property management contracts and agreements to which such Assignor now
is a party and those to which it shall hereafter become a party (the
"Assigned Contracts").
NOW, THEREFORE, in consideration of the promises and covenants contained
herein and other good and valuable consideration, the receipt and sufficiency
of which are acknowledged by each Assignor, and intending to be legally
bound, each Assignor assigns to Assignee all of its right, title and interest
in and to its Assigned Contracts to the extent assignable and to the fullest
extent permitted by Law.
1. Except as otherwise expressly provided herein, capitalized terms
used in this Assignment shall have the respective meanings given to them in
the Credit Agreement.
2. As security for the due and punctual payment and performance of the
Obligations as defined in the Credit Agreement, each Assignor does hereby grant,
bargain, sell, assign, transfer and set over unto Assignee, its successors and
assigns, all the rights, interests and privileges which such Assignor has or may
have in or under the Assigned Contracts, including without limiting the
generality of the foregoing, the present and continuing right with full power
and authority, in its own name, or in the name of such Assignor, or otherwise,
but subject to the provisions and limitations of Section 3 hereof, (i) to make
claim for, enforce, perform, collect and receive any and all rights under the
Assigned Contracts, (ii) to do any and all things which such Assignor is or may
become entitled to do under the Assigned Contracts, and (iii) to make all
waivers and agreements, give all notices, consents and releases and other
instruments and to do any and all other things whatsoever which such Assignor
is or may become entitled to do under the Assigned Contracts.
Notwithstanding the foregoing assignment, each Assigned Contract which by its
terms or by operation of law would become void, terminable, revocable, or in
default if pledged or assigned hereunder or if a security interest therein
were granted hereunder is expressly excepted and excluded from the lien and
terms of this assignment to the extent necessary so to avoid such voidness,
voidability, terminability or revocability.
3. The acceptance of this Assignment and the payment or performance
under the Assigned Contracts shall not constitute a waiver of any rights of
Assignee under the terms of the Note, the Credit Agreement or any other Loan
Documents, it being understood that, until the occurrence of an Event of
Default, and the exercise of Assignee's rights under Section 4 hereof, each
Assignor shall have all rights to its respective Assigned Contracts and to
retain, use and enjoy the same.
4. Each Assignor, upon the occurrence and during the continuance of an
Event of Default, hereby authorizes Assignee, at Assignee's option, to do all
acts required or permitted under the Assigned Contracts as Assignee in its
sole discretion may deem proper. Each Assignor does hereby irrevocably
constitute and appoint Assignee, while this Assignment remains in force and
effect and, in each instance, to the full extent permitted by applicable Law,
its true and lawful attorney in fact, coupled with an interest and with full
power of substitution and revocation, for such Assignor and in its name,
place and stead, to demand and enforce compliance with all the terms and
conditions of its Assigned Contract and all benefits accrued thereunder,
whether at law, in equity or otherwise; PROVIDED, HOWEVER, that Assignee
shall not exercise any such power unless and until an Event of Default shall
have occurred and is continuing.
5. Assignee shall not be obligated to perform or discharge any
obligation or duty to be performed or discharged by any Assignor under the
Assigned Contracts, and each Assignor hereby agrees to indemnify Assignee
for, and to save Assignee harmless from, any and all liability arising under
the Assigned Contracts, other than arising or resulting from Assignee's (or
its agents, employees or contractors) gross negligence or willful misconduct.
6. Each Assignor agrees that this Assignment and the designation and
directions herein set forth are irrevocable.
7. Neither this Assignment nor any action or inaction on the part of
Assignee shall constitute an assumption on the part of Assignee of any
obligations or duties under the Assigned Contracts.
8. Each Assignor covenants and warrants that:
(a) its Assigned Contracts are and shall be valid contracts, and
that there are and shall be, to the extent ascertainable by such Assignor, no
material defaults on the part of any of the parties thereto;
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(b) other than with a respect to Permitted Liens, it will not
assign, pledge or otherwise encumber the Assigned Contracts without the prior
written consent of Assignee;
(c) other than in the ordinary course of business, it will not
cancel, terminate or accept any surrender of the Assigned Contracts;
(d) other than in the ordinary course of business, it will not
waive or give any consent with respect to any material default or material
variation in the performance under the Assigned Contracts, it will at all
times take proper steps to enforce all of the provisions and conditions
thereof, and it will forthwith notify Assignee of any material default under
the Assigned Contracts;
(e) it will in all material respects perform and observe, or cause
to be performed and observed, all of the terms, covenants and conditions on
its part to be performed and observed with respect to the Assigned Contracts;
and
(f) it will execute from time to time any and all additional
assignments or instruments of further assurance to Assignee, as Assignee may
at any time reasonably request to evidence the intent of this Assignment.
9. At such time as the Loans are indefeasibly paid in full and the
Commitment has terminated, this Assignment and all of Assignee's right, title
and interest hereunder with respect to the Assigned Contracts shall terminate.
10. This Assignment shall inure to the benefit of Assignee, its
successors and assigns, and shall be binding upon each Assignor, their
successors, successors in title and assigns.
11. This Assignment shall be governed by and construed in accordance
with the internal laws of the Commonwealth of Pennsylvania without regard to
its conflicts of Law principles.
12. The provisions of this Assignment are intended to be severable. If
any provision of this Assignment shall be held invalid or unenforceable in
whole or in part in any jurisdiction, such provision shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
13. This Assignment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which, when
executed and delivered, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
[SIGNATURES APPEAR ON NEXT PAGE]
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[SIGNATURE PAGE 1 OF 1 TO MASTER COLLATERAL ASSIGNMENT OF
CONTRACT RIGHTS]
IN WITNESS WHEREOF, the parties have executed this instrument under seal
as of the day and year first above written.
XXXXX & XXXXX COMPANY
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Senior Vice President and
Chief Financial Officer
EACH OF THE CORPORATIONS
LISTED AS A SUBSIDIARY ON THE
ATTACHED SCHEDULE I
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Senior Vice President and Chief
Financial Officer of each of the
Subsidiaries listed on Schedule I
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxx
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Title: Vice President
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