EXHIBIT 10.15
ASSIGNMENT OF MEMBER'S INTEREST
THIS ASSIGNMENT OF MEMBER'S INTEREST (this "Assignment"), made as of the
25th day of April, 1997, by PAMC CO-MANAGER INC., a Delaware corporation ("Co-
Managing Member"), and PARK AVENUE FINANCING COMPANY, LLC ("Holding Company";
Holding Company and Co-Managing Member are hereinafter referred to collectively
as "Assignors"), to THE FIRST NATIONAL BANK OF BOSTON, a national banking
association ("FNBB"), as Agent for itself and the other Banks from time to time
party to the Credit Agreement (as hereafter defined) (FNBB, in its capacity as
Agent, is hereinafter referred to as "Lender").
W I T N E S S E T H:
WHEREAS, Assignors are members of 000 Xxxx Xxxxxx, LLC, a limited
liability company formed under the laws of the State of Delaware (the
"Company"); and
WHEREAS, the Company is presently governed by that certain Certificate of
Formation recorded on December 9, 1996 with the Delaware Secretary of State,
and that certain Operating Agreement dated as of April 25, 1997 (collectively
the "Organizational Agreements"); and
WHEREAS, pursuant to that certain Credit Agreement dated of even date
herewith among the Assignors, FNBB, the other lenders that are a party thereto,
Lender and certain other parties (as the same may be varied, extended,
supplemented, consolidated, amended, replaced, renewed, modified or restated,
the "Credit Agreement"), the Banks have agreed to provide a loan to Assignors
of $80,000,000.00 (the "Loan"), which Loan is evidenced by those certain Notes
made by Assignors to the order of the Banks in the aggregate principal face
amount of $80,000,000.00 (such Notes, and each other note as may be issued
under the Credit Agreement, as the same may be varied, extended, supplemented,
consolidated, amended, replaced, renewed, modified or restated, is hereinafter
referred to collectively as the "Note"); and
WHEREAS, Xxxxxx has required, as a condition to the making of the Loan to
Assignors, that Assignors execute this Assignment to secure the obligations of
Assignors under the Note, the Credit Agreement and certain other agreements;
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00), and other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby
covenant and agree as follows:
1. Definitions. Capitalized terms used herein that are not otherwise
defined herein shall have the meaning set forth in the Credit Agreement.
2. Grant of Security Interest. As security for the payment and
performance by Assignors of each and all of the duties, responsibilities and
obligations under this Assignment, the Credit Agreement, the Note and any and
all agreements evidencing, securing or otherwise relating to the obligations
evidenced by the Note and the Credit Agreement (this Assignment, the Credit
Agreement, the Note and such other agreements, together with any and all
renewals, modifications, consolidations and extensions thereof, are hereinafter
referred to collectively as the "Loan Documents"; and said duties,
responsibilities and obligations of Assignors are hereinafter referred to
collectively as the "Obligations"), Assignors do hereby transfer, assign,
pledge, convey and grant to Lender, and does hereby grant a security interest
to Xxxxxx in, all of Assignor's right, title and interest in and to the
following:
(a) All right, title, interest, claims or rights of Assignors now or
hereafter in, to or against the Company (including, without limitation, the
Assignors' membership interest in the Company, the interest of Assignors in and
to the Organizational Agreements, the capital of the Company, and the property
and assets of the Company and any rights pertaining thereto), which interest is
evidenced by Certificate Nos. 1 and 2 (collectively the "Certificates"),
together with any and all other securities, cash, certificates or other
property, option or right in respect of, in addition to or substitution or
exchange for the Certificates, or other property at any time and from time to
time receivable or otherwise distributed in respect of or in exchange for all
or any thereof; and
(b) All right, title and interest of Assignor, if any, in and to the
Cash Collateral Agreement or any account maintained or funds held pursuant
thereto; and
(c) Any and all profits, proceeds, accounts, income, distributions,
payments upon dissolution or liquidation of the Company or the sale, financing
or refinancing of any of the property or assets of the Company, proceeds of a
casualty or condemnation, return of capital, repayment of loans, and payments
of any kind or nature whatsoever, now or hereafter distributable or payable by
the Company or any member of the Company (in such member's capacity as a
member) to Assignors, by reason of Assignors' interest in the Company or
otherwise, or now or hereafter distributable or payable to Assignors from any
other source by reason of Assignors being a member in the Company, or on
account of any interest in or claim or rights against the Company held by
Assignors, or by reason of services performed by Assignors for or on behalf of
the Company or with respect to the assets of the Company, and any and all
proceeds from any transfer, assignment or pledge of any interest of Assignors
in, or claim or right against, the Company (regardless of whether such
transfer, assignment or pledge is permitted under the terms hereof or the other
Loan Documents), and all claims, choses in action or things in action now or
hereafter arising against the Company; and
(d) All accounts, contract rights and general intangibles now or
hereafter arising from any of the foregoing; and
(e) All notes or other documents or instruments now or hereafter
evidencing or securing any of the foregoing; and
(f) All right of Assignors to collect and enforce payments
distributable or payable by the Company or any member of the Company to
Assignors pursuant to the terms of the Organizational Agreements; and
(g) All documents, writings, leases, books, files, records, computer
tapes, programs, ledger books and ledger pages arising from or used in
connection with any of the foregoing; and
(h) All renewals, extensions, additions, substitutions or
replacements of any of the foregoing; and
(i) All powers, options, rights, privileges and immunities
pertaining to any of the foregoing; and
(j) All proceeds of any of the foregoing and all cash, security or
other property distributed on account of any of the foregoing.
All of the foregoing described in this paragraph 2 are hereinafter referred to
collectively as the "Collateral". The items described in (a), above, are
sometimes hereinafter referred to as the "Member Interests"; and the items
described in (b) - (j), above, are sometimes hereinafter referred to
collectively as the "Distributions."
3. Obligations Secured. This Assignment secures the payment and
performance by Assignors of the Obligations.
4. Collection of Distributions.
(a) It is acknowledged and agreed by the parties hereto that Lender
shall have sole and exclusive possession of the Distributions and that this
Assignment constitutes a present, absolute and current assignment of all the
Distributions and is effective upon the execution and delivery hereof.
Payments under or with respect to the Distributions shall be made as follows:
(i) Assignors shall have no right to receive payments made
under or with respect to the Distributions, and all such payments
shall be delivered directly by the Company to Lender pursuant to the
terms of the Cash Collateral Agreement.
(ii) If Assignors shall receive any payments made under or with
respect to the Distributions, Assignors shall hold all such payments
in trust for Lender, will not co-mingle such payments with other
funds of Assignors, and will immediately pay and deliver in kind, all
such payments directly to Lender for application by Lender in
satisfaction of the Obligations in such order as set forth in the
Credit Agreement.
(iii) Assignors hereby agree for the benefit of
the Company that all payments actually received by Xxxxxx shall be
deemed payments to Assignors by the Company. Lender shall apply any
and all such payments actually received by Lender in satisfaction of
the Obligations in such order as set forth in the Credit Agreement.
Lender shall return to Assignors that portion of any payments
actually received by Xxxxxx from the Company which Lender determines,
in the exercise of its sole and absolute discretion but in good
faith, is not needed to repay the Obligations.
(iv) In furtherance of the foregoing, Assignors do hereby notify
and direct the Company and its members that all payments under or
with respect to the Distributions shall be made directly to Lender at
the address of Lender set forth in the Cash Collateral Agreement.
Notwithstanding anything in this Paragraph 4 to the contrary, so long as no
Event of Default has occurred, Assignors shall have a license (revocable upon
the occurrence of an Event of Default) to collect such amounts as are
distributable to Assignors pursuant to the terms of the Cash Collateral
Agreement; it being understood and agreed that such license shall not extend to
other amounts payable or distributable to Assignors, including, without
limitation, any amounts arising from the sale, transfer, assignment conveyance,
option or other disposition of, or any mortgage, hypothecation, encumbrance,
financing or refinancing of any interest of Assignors in the Company, any of
the assets or properties of the Company or any assets or properties of any
other Person in which the Company directly or indirectly owns an interest
(regardless of whether such event is permitted under the terms of the Loan
Documents).
(b) Assignors shall cause the Company promptly to distribute all net
proceeds of the sale, transfer, assignment, conveyance, option or other
disposition of, or any mortgage, hypothecation, encumbrance, financing or
refinancing of, any of its assets or properties, and any and all other
Distributions distributable or payable by the Company or any member thereof
under the terms of the Organizational Agreements.
(c) Each Assignor hereby irrevocably designates and appoints Lender
its true and lawful attorney-in-fact, which appointment is coupled with an
interest, either in the name of Xxxxxx, or in the name of such Assignor, at
such Assignor's sole cost and expense, and regardless of whether Xxxxxx becomes
a member in the Company or not, to take any or all of the following actions:
(i) to ask, demand, sue for, attach, xxxx, settle, compromise,
collect, compound, recover, receive and give receipt and acquittances
for any and all Collateral and to take any and all actions as Lender
may deem necessary or desirable in order to realize upon the
Collateral, or any portion thereof, including, without limitation,
making any statements and doing and taking any actions on behalf of
such Assignor which are otherwise required of such Assignor under the
terms of any agreement as conditions precedent to the payment of the
Distributions, and the right and power to receive, endorse, assign
and deliver, in the name of such Assignor, any checks, notes, drafts,
instruments or other evidences of payment received in payment of or
on account of all or any portion of the Collateral, and Assignors
hereby waive presentment, demand, protest and notice of demand,
protest and non-payment of any instrument so endorsed; and
(ii) to institute one or more actions against the Company or any
member thereof in connection with the collection of the
Distributions, to prosecute to judgment, settle or dismiss any such
actions, and to make any compromise or settlement deemed desirable,
in Xxxxxx's sole and absolute discretion, with respect to such
Distributions, to extend the time of payment, arrange for payment in
installments or otherwise modify the terms of the Organizational
Agreements with respect to the Distributions or release the Company
or any member thereof from their respective obligations to pay any
Distribution, without incurring responsibility to, or affecting any
liability of, Assignors under the Organizational Agreements;
it being specifically understood and agreed, however, that Lender shall not be
obligated in any manner whatsoever to give any notices of default (except as
may be specifically required herein) or to exercise any such power or authority
or be in any way responsible for the preservation, maintenance, collection of
or realizing upon the Collateral, or any portion thereof, or any of Assignors'
rights therein. The foregoing appointment is irrevocable and continuing and
any such rights, powers and privileges shall be exclusive in Lender, its
successors and assigns until this Assignment terminates as provided in
Paragraph 13, below.
(d) Notwithstanding anything herein to the contrary, Assignors
hereby authorize and direct the Company and the members thereof to pay all
Distributions from or relating to any sale, transfer, assignment, conveyance,
option or other disposition of, or any pledge, mortgage, encumbrance, financing
or refinancing of, any of the Collateral or the Mortgaged Property directly to
Lender (regardless of whether such event is permitted under the terms of the
Loan Documents), and all such Distributions received by Assignors shall be
promptly delivered to Lender in the same form as received, with the addition
only of such endorsements and assignments as may be necessary to transfer title
to Lender and, pending such delivery, all such Distributions shall be held in
trust for Lender. Lender shall apply any such payments actually received by
Lender in satisfaction of the Obligations in such order as set forth in the
Credit Agreement.
5. Warranties and Covenants. Assignors do hereby warrant and represent
to, and covenant and agree with, Xxxxxx as follows:
(a) All duties, obligations and responsibilities required to be
performed by Assignors as of the date hereof under the Organizational
Agreements have been performed, and no default or condition which with the
passage of time or the giving of notice, or both, would constitute a default
exists under the Organizational Agreements.
(b) A true, correct and complete copy of the Organizational
Agreements, together with all amendments thereto, is attached hereto as
Exhibit "A". The Organizational Agreements are in full force and effect.
Except for the Loan Documents and the Mortgage Loan Documents, neither the
Company nor either of the Assignors is a party to or is bound by any indenture,
contract or other agreement which purports to prohibit, restrict, limit, or
control the transfer or pledge of the Collateral, the exercise of voting rights
with respect to the Company or the management of the Company.
(c) Assignors are and, except in the event of a Permitted Transfer,
shall remain the sole, lawful, beneficial and record owner of the Member
Interests and the Distributions, free and clear of all liens, restrictions,
claims, pledges, encumbrances, charges, claims of third parties and rights of
set-off or recoupment whatsoever (other than those in favor of Lender
hereunder), and Assignors have the full and complete right, power and authority
to create a security interest in the Collateral in favor of Lender, in
accordance with the terms and provisions of this Assignment. The Certificates
have been duly authorized and validly issued, and is fully paid and non-
assessable. Assignors are not and will not become a party to or otherwise be
bound by any agreement, other than the Loan Documents and the Mortgage Loan
Documents, which restricts in any manner the rights of any present or future
holder of any of the Certificates with respect thereto.
(d) Assignors and Managing Member are the sole members of the
Company, and no other Person owns any legal, equitable or beneficial interest
in the Company. The Member Interests are not represented or otherwise evidenced
by any certificate or other document other than the Certificates.
(e) Upon the delivery to Lender of the Certificates, this Assignment
creates a valid and binding first priority security interest in the Collateral
securing the payment and performance of the Obligations and the performance by
Assignors of their obligations hereunder and under the Loan Documents, and upon
the filing of UCC Financing Statements with the Secretary of State's Office in
the State of New York and Office of the Register of the City of New York, New
York County all filings and other actions necessary to perfect and protect such
security interests shall have been duly made and taken. Neither Assignors nor
the Company have performed or will perform any acts which might prevent Lender
from enforcing any of the terms and conditions of this Agreement or which would
limit Lender in any such enforcement.
(f) All original notes and other documents or instruments
evidencing, constituting, guaranteeing or securing any of the Distributions or
any right to receive the Distributions have been endorsed to and delivered to
Lender.
(g) For the purposes of Article 9-401 of the New York Uniform
Commercial Code, the principal place of business of Assignors is located in New
York County, New York. In the event that Assignors have more than one (1)
place of business in the State of New York, their respective chief executive
office is located in New York County, New York. In order to perfect the pledge
and security interests granted herein against Assignors, U.C.C. Financing
Statements must be filed with the Secretary of State's Office of the State of
New York and the Office of the Register of the City of New York, New York
County.
(h) Each Assignor consents to the execution and delivery of this
Assignment by the other Assignor and the admission of Lender or any other
purchaser of the "Member Interests" assigned pursuant thereto upon a
foreclosure sale or conveyance in lieu thereof or subsequent conveyance thereof
as a substitute member of the Company and consents to Lender or such other
purchaser acting as the managing member of the Company, with all of the rights
and privileges of a member under the Organizational Agreements, in the event
that Lender exercises its rights under such Assignment and Lender or such other
purchaser succeeds to ownership of all or any portion of such Member Interests.
Following any such transfer, Assignors shall take such actions as may be deemed
necessary by Lender or such purchaser to reflect such assignment in the records
of the Company.
6. General Covenants. Assignors covenant and agree that, so long as
this Assignment is continuing:
(a) Except for a Permitted Transfer, Assignors shall not, without
the prior written consent of Lender, which consent may be withheld by Lender in
its sole and absolute discretion, directly, indirectly or by operation of law,
sell, transfer, assign, dispose of, pledge, convey, option, mortgage,
hypothecate or encumber any of the Collateral, nor shall there occur, directly,
indirectly or by operation of law, without the prior written consent of Lender
in each instance, which consent may be withheld by Xxxxxx in its sole and
absolute discretion, any sale, assignment, transfer, conveyance, disposition,
option, mortgage, hypothecation, pledge or other encumbrance of (i) any
interest in Co-Managing Member by Guarantor or (ii) any interest of Holding
Company Managing Member or Guarantor in Holding Company.
(b) Assignors shall at all times defend the Collateral against all
claims and demands of all persons at any time claiming any interest in the
Collateral adverse to Xxxxxx's interest in the Collateral as granted hereunder.
(c) So long as this Assignment remains in effect, Assignors shall
not modify, amend, cancel, release, surrender, terminate or permit the
modification, amendment, cancellation, release, surrender or termination of,
the Organizational Agreements, or dissolve, liquidate or permit the
dissolution, liquidation or expiration of the Company or the Organizational
Agreements, or seek the partition of any of the assets of the Company, without
in each instance the prior written consent of Lender, which consent may be
withheld by Lender in its sole and absolute discretion; provided, however, that
Lender shall not unreasonably withhold its consent to any modification or
amendment of the Organizational Agreements which does not affect or have an
impact on the management of the Company, any voting rights, the rights to
receive Distributions, any provisions of the Organizational Agreements
concerning actions that the Company is either authorized to do or that are
ultra xxxxx, or otherwise materially affect the Company, the Collateral or the
rights and benefits afforded to Lender pursuant to this Agreement, or that are
required by the Rating Agency pursuant to the Mortgage (provided that with
respect to any changes that are requested by the Rating Agency, Assignors shall
execute and deliver to Lender such agreements or amendments to the Loan
Documents as Lender may reasonably require) (such modifications or amendments
described in the foregoing proviso are hereinafter referred to as the "Minor
Amendments").
(d) (i) Assignors shall perform all of their respective duties,
responsibilities and obligations under the Organizational Agreements to the
extent they have authority to do so hereunder and with respect to the
Collateral, and shall diligently and in good faith protect the value of the
Collateral. Except with respect to a Permitted Transfer, Assignors shall not,
without the prior written consent of Lender, which consent may be withheld by
Lender in its sole and absolute discretion, take any action which could result
in the sale, reduction, cancellation, dilution, diminution, conversion or
withdrawal of any interest of either of Assignors in the Company, or omit to
take any action necessary to prevent any such sale, reduction, cancellation,
dilution, diminution or conversion, or otherwise take any action or omit to
take any action that would or could, in the exercise of Xxxxxx's judgment,
jeopardize or diminish the security afforded to Lender by the Collateral.
Without limiting the foregoing, Assignors shall not consent to or permit to
occur the admission of any new member in the Company, the creation of any new
class of interest in the Company or the issuance, directly or indirectly, of
any other equity interest in the Company.
(ii) Assignors shall not, without the prior written consent of
Lender, which consent may be withheld by Lender in its sole and absolute
discretion, take any action which could result in the sale, reduction,
cancellation, dilution, diminution or conversion of any interest of Guarantor
or Holding Company Managing Member in Holding Company. Without limiting the
foregoing, Assignors shall not, without the prior written consent of Lender,
which consent may be withheld by Lender in its sole and absolute discretion,
consent to or permit to occur the admission of any new member in Holding
Company, the creation of any new class of interest in the Holding Company or
the issuance, directly or indirectly, of any other equity interest in Holding
Company.
(e) Assignors shall pay all taxes and other charges against the
Collateral, shall not use the Collateral illegally, and shall not suffer to
exist any loss, theft, damage or destruction of the Collateral and shall suffer
to exist no levy, seizure or attachment of the Collateral.
(f) Assignors, at the request of Lender, shall take such actions as
Lender reasonably may require to enforce the terms of the Organizational
Agreements or any other contract, agreement or instrument included in, giving
rise to, creating, establishing, evidencing or relating to the Collateral or to
collect or enforce any claim for payment or other right or privilege assigned
to Lender hereunder.
(g) Assignors authorize Xxxxxx, at the expense of Assignors, to
execute and file any financing statement or statements deemed necessary by
Lender to perfect its security interest in any of the Collateral. Any such
financing statement may be signed by Xxxxxx alone. Assignors will sign and
deliver any financing statements and other documents, and perform such other
acts as Lender may deem necessary or desirable from time to time to establish
and maintain in favor of Lender, valid and perfected security interests in the
Collateral, free of all other liens, encumbrances, security interests and
claims other than as permitted by the terms of this Assignment. Assignors
shall also furnish to Lender such evidence as it reasonably may require to
confirm the value of the Collateral, and shall do anything else Lender may
reasonably require from time to time to establish a valid security interest in
and to further protect and perfect its security interest in the Collateral.
(h) Except for those items of the Collateral that are delivered to
Lender as provided herein, the Collateral, and all records of Assignors
relative to the Collateral, are and will be kept at the office of Assignors
located in New York County, New York. Assignors shall give Lender not fewer
than thirty (30) days prior written notice of any proposed change in the name
of either of Assignors or the Company and any proposed change in the location
of the Collateral or of such records, and Assignors will not, without the prior
written consent of Lender, move the Collateral or such records to a location
outside of New York County, New York or keep duplicate records with respect to
the Collateral at any address outside such county. Nothing contained in this
subparagraph shall be construed so as to prevent Assignors from keeping
material abstracted from the books and records described herein at any of its
offices as necessity or convenience dictates. Assignors shall permit the
Lender or any representative designated by the Lender, at the Assignors'
expense, to examine the books and accounts of the Assignors (and to make copies
thereof and extracts therefrom) and to discuss the affairs, finances and
accounts of the Assignors with, and to be advised as to the same by, its
members and officers, all at such reasonable times and intervals as the Lender
may reasonably request. The Lender shall use good faith efforts to coordinate
such visits and inspections so as to minimize the interference with and
disruption to Assignors' normal business operations.
(i) Without limiting any other terms of the Loan Documents
prohibiting or restricting the ability of the Company to incur Indebtedness, if
any amounts are due from the Company to Assignors and the obligations to repay
such amount is to be evidenced by a separate document or instrument, then as
evidence of such obligations, Assignors shall cause the Company to issue
Assignors, as the evidence of any obligations of the Company to pay
Distributions to Assignors in the future, a promissory note bearing the legend
attached hereto as Exhibit "B" and which note shall provide that all payments
due under such promissory note are to be paid directly to Lender as required by
and applied as provided in the Loan Documents until the Obligations are paid in
full or this Assignment is otherwise terminated as provided herein. No other
evidence of such obligations shall be executed by the Company to Assignors.
(j) Assignors shall promptly deliver to Lender any note or other
document or instrument entered into after the date hereof which evidences,
constitutes, guarantees or secures any of the Distributions or any right to
receive a Distribution, which notes or other documents and instruments shall be
accompanied by such endorsements or assignments as Lender may require to
transfer title to Lender.
(k) Assignors will provide to Lender such documents and reports
respecting the Collateral in such form and detail as Lender reasonably may
request from time to time.
(l) Anything herein to the contrary notwithstanding, (i) Assignors
shall remain liable under the Organizational Agreements and all other
contracts, agreements and instruments included in, giving rise to, creating,
establishing, evidencing or relating to the Collateral to the extent set forth
therein to perform all of its duties and obligations (including, without
limitation, the making of any contributions to the capital of the Company or
the payment of any other sum to or on behalf of the Company) to the same extent
as if this Assignment had not been executed, (ii) the exercise by Lender of
any of its rights hereunder shall not release Assignors from any of their
respective duties or obligations under the Organizational Agreements or any
such contracts, agreements and instruments (other than those duties or
obligations first arising after Lender or its nominee acquires title to the
Collateral following a foreclosure), and (iii) Lender shall not have any
obligation or liability under the Organizational Agreements or any such
contract, agreement or instrument by reason of this Assignment, nor shall
Lender be obligated to perform any of the obligations or duties of Assignors
thereunder or to take any action to collect or enforce any claim for payment or
other right or privilege assigned to Lender hereunder.
(m) If Assignors shall at any time be entitled to receive or shall
receive any cash, certificate or other property, option or right, upon, in
respect of, as an addition to, or in substitution or exchange for any of the
Collateral, whether for value paid by Assignors or otherwise, the Assignors
agree that the same shall be deemed to be Collateral and shall be delivered
directly to Lender in each case, accompanied by proper instruments of
assignment duly executed by Assignors in such a form as reasonably may be
required by Xxxxxx, to be held by Lender subject to the terms hereof, as
further security for the Obligations (except as otherwise provided herein with
respect to the application of the foregoing to the Obligations). If Assignors
receive any of the foregoing directly, Assignors agree to hold such cash or
other property in trust for the benefit of Xxxxxx, and to surrender such cash
or other property to Xxxxxx immediately.
7. Events of Default. An Event of Default shall exist hereunder upon
the occurrence of any of the following:
(a) Any warranty, representation or statement made by or on behalf
of Assignors in this Assignment proves untrue or misleading in any material
respect and such warranty, representation or statement is not cured within the
cure period permitted in Section 7.18 of the Credit Agreement; or
(b) Assignors shall fail to duly and fully comply with any covenant,
condition or agreement in Paragraphs 6(a), 6(c), 6(d), 6(e), 6(i), 6(j) or 6(m)
of this Assignment; or
(c) Assignors shall fail to duly and fully comply with any other
covenant, condition or agreement of this Assignment (other than those specified
above in this Paragraph 7) and the same is not cured within thirty (30) days
following receipt of written notice of such default; or
(d) The occurrence of an Event of Default under any of the Loan
Documents.
Notwithstanding anything contained in Paragraph 7(b) above to the contrary,
(i) no Event of Default shall exist hereunder upon the failure of the Assignors
to obtain the prior consent of the Lender to a Minor Amendment pursuant to
Paragraph 6(c) unless the Assignors fail to cure such default within five (5)
days following receipt of written notice of such default, (ii) no Event of
Default shall exist hereunder upon the failure of Assignors to perform all of
their respective duties, responsibilities and obligations under the
Organizational Agreements as provided in Paragraph 6(d) unless the Assignors
fail to cure such default within five (5) days following receipt of written
notice of such default, and (iii) no Event of Default shall exist upon the
failure of Assignors to pay any taxes against the Collateral involving
individually or in the aggregate an amount not to exceed $500,000.00 unless the
Assignors fail to cure such default within five (5) days following receipt of
written notice of such default (but in any event prior to the commencement of
any proceeding to foreclose any lien that may attach as security therefor), or
in the event of any levy or attachment of any of the Collateral for a claim
individually or in the aggregate of less than $500,000.00 unless Assignors fail
to cure such default within the earlier to occur of (A) five (5) days following
receipt of written notice of such default from Lender or (B) five (5) days
following the date of such levy or attachment.
8. Remedies.
(a) Upon the occurrence of any Event of Default, Lender may take any
action deemed by Lender to be necessary or appropriate to the enforcement of
the rights and remedies of Lender under this Assignment and the Loan Documents,
including, without limitation, the exercise of its rights and remedies with
respect to any or all of the Member Interests. The remedies of Lender shall
include, without limitation, all rights and remedies specified in the Loan
Documents and this Assignment, all remedies of Lender under applicable general
or statutory law, and the remedies of a secured party under the Uniform
Commercial Code as enacted in the State of New York, regardless of whether the
Uniform Commercial Code has been enacted or enacted in that form in any other
jurisdiction in which such right or remedy is asserted. Any notice required by
law, including, but not limited to, notice of the intended disposition of all
or any portion of the Collateral, shall be reasonably and properly given in the
manner prescribed for the giving of notice herein, and, in the case of any
notice of disposition, if given at least ten (10) calendar days prior to such
disposition. Lender may require Assignors to assemble the Collateral and make
it available to Lender at any place to be designated by Lender which is
reasonably convenient to both parties. It is expressly understood and agreed
that Xxxxxx shall be entitled to dispose of the Collateral at any public or
private sale, and that Lender shall be entitled to bid and purchase at any such
sale. In the event that Lender is the successful bidder at any public or
private sale of any note or other document or instrument evidencing Assignors'
right to receive a Distribution, Lender shall be entitled to credit the amount
bid by Lender against the obligations evidenced by such note, document or
instrument rather than the obligations evidenced by the Note. To the extent
the Collateral consist of marketable securities, Lender shall not be obligated
to sell such securities for the highest price obtainable, but shall sell them
at the market price available on the date of sale. Lender shall not be
obligated to make any sale of the Collateral if it shall determine not to do so
regardless of the fact that notice of sale of the Collateral may have been
given. Lender may, without notice or publication, adjourn any public sale from
time to time by announcement at the time and place fixed for sale, and such
sale may, without further notice, be made at the time and place to which the
same was so adjourned. Each such purchaser at any such sale shall hold the
Collateral sold absolutely free from claim or right on the part of Assignors.
In the event that any consent, approval or authorization of any governmental
agency or commission will be necessary to effectuate any such sale or sales,
Assignors shall execute all such applications or other instruments as Lender
may deem reasonably necessary to obtain such consent, approval or
authorization. Lender may notify any account debtor or obligor with respect to
the Collateral to make payment directly to Lender, and may demand, collect,
receipt for, settle, compromise, adjust, sue for, foreclose or realize upon the
Collateral as Lender may determine whether or not the Obligations or the
Collateral are due, and for the purpose of realizing Lender's rights therein,
Lender may receive, open and dispose of mail addressed to Assignors and endorse
notes, checks, drafts, money orders, documents of title or other evidences of
payment, shipment or storage of any form of Collateral on behalf and in the
name of either Assignor, as its attorney-in-fact. In addition, each Assignor
hereby irrevocably designates and appoints Lender its true and lawful attorney-
in-fact either in the name of Lender or Assignors to (i) sign such Assignor's
name on any Collateral, drafts against account debtors, assignments, any proof
of claim in any bankruptcy or other insolvency proceeding involving any account
debtor, any notice of lien, claim of lien or assignment or satisfaction of
lien, or on any financing statement or continuation statement under the Uniform
Commercial Code; (ii) send verifications of accounts receivable to any account
debtor; and (iii) in connection with a transfer of the Collateral as described
above, sign in such Assignor's name any documents necessary to transfer title
to the Collateral to Lender or any third party. All acts of said power of
attorney are hereby ratified and approved and Lender shall not be liable for
any mistake of law or fact made in connection therewith. This power of
attorney is coupled with an interest and shall be irrevocable so long as any
amounts remain unpaid on any of the Obligations. All remedies of Lender shall
be cumulative to the full extent provided by law, all without liability except
to account for property actually received, but the Lender shall have no duty to
exercise such rights and shall not be responsible for any failure to do so or
delay in so doing. Pursuit by Xxxxxx of certain judicial or other remedies
shall not xxxxx nor bar other remedies with respect to the Obligations or to
other portions of the Collateral. Lender may exercise its rights to the
Collateral without resorting or regard to other collateral or sources of
security or reimbursement for the Obligations.
(b) If Assignors fail to perform any agreement or covenant contained
in this Assignment beyond any applicable period for notice and cure, Lender may
itself perform, or cause to be performed, any agreement or covenant of
Assignors contained in this Assignment which Assignors shall fail to perform,
and the cost of such performance, together with any expenses, including
reasonable attorneys' fees actually incurred (including attorneys' fees
incurred in any appeal) by Lender in connection therewith, shall be payable by
Assignors upon demand and shall constitute a part of the Obligations and shall
bear interest at the rate for overdue amounts as set forth in the Credit
Agreement.
(c) Whether or not an Event of Default has occurred and whether or
not Lender is the absolute owner of the Collateral, Lender may take such action
as Lender may deem necessary to protect the Collateral or its security interest
therein, Lender being hereby authorized to pay, purchase, contest and
compromise any encumbrance, charge or lien which in the judgment of Lender
appears to be prior or superior to its security interest, and in exercising any
such powers and authority to pay reasonably necessary expenses, employ counsel
and pay reasonable attorney's fees. Any such advances made or expenses
incurred by Lender shall be deemed advanced under the Loan Documents, shall
increase the indebtedness evidenced and secured thereby, shall be payable upon
demand and shall bear interest at the rate for overdue payments set forth in
the Credit Agreement.
(d) Any certificates or securities held by Xxxxxx as Collateral
hereunder may, at any time, and at the option of Lender, be registered in the
name of Lender or its nominee, endorsed or assigned in blank or in the name of
any nominee and Lender may deliver any or all of the Collateral to the issuer
or issuers thereof for the purpose of making denominational exchanges or
registrations or transfer or for such other purposes in furtherance of this
Agreement as Lender may deem desirable. Until the occurrence of an Event of
Default, Assignors shall retain the right to vote any of the Collateral, in a
manner not inconsistent with the terms of this Agreement and the other Loan
Documents, and Lender hereby grants to Assignors its proxy to enable Assignors
to so vote any of the Collateral (except that Assignor shall not have any
right to exercise any such power if the exercise thereof would violate or
result in a violation of any of the terms of this Agreement or any of the other
Loan Documents). At any time after the occurrence and during the continuance
of any Event of Default, Lender or its nominee shall, without notice or demand,
automatically have the sole and exclusive right to give all consents, waivers
and ratifications in respect of the Collateral and exercise all voting and
other management, approval or other rights at any meeting of the members of the
Company (and the right to call such meetings) or otherwise (and to give written
consents in lieu of voting thereon), including, without limitation, exercising
the right to cause Co-Managing Member to be the sole managing member of the
Property Owner, and exercise any and all rights of conversion, exchange,
subscription or any of the rights, privileges or options pertaining to the
Collateral and otherwise act with respect thereto and thereunder as if it were
the absolute owner thereof (all of such rights of the Assignors ceasing to
exist and terminating upon the occurrence of an Event of Default) including,
without limitation, the right to exchange, at its discretion, any and all of
the Collateral upon the merger, consolidation, reorganization, recapitalization
or the readjustment of the issuer thereof, all without liability except to
account for property actually received and in such manner as Lender shall
determine in its sole and absolute discretion, but Lender shall have no duty to
exercise any of the aforesaid rights, privileges or options and shall not be
responsible for the failure to do so or delay in so doing. The exercise by
Lender of any of its rights and remedies under this paragraph shall not be
deemed a disposition of collateral under Article 9 of the UCC nor an acceptance
by Lender of any of the Collateral in satisfaction of the Obligations.
9. Duties of Lender. The powers conferred on Lender hereunder are
solely to protect its interest in the Collateral and shall not impose any duty
upon it to exercise any such powers. Xxxxxx's duty with reference to the
Collateral shall be solely to use slight care in the custody and preservation
of the Collateral, which shall not include any steps necessary to preserve
rights against prior parties. Lender shall have no responsibility or liability
for the collection of any Collateral or by reason of any invalidity, lack of
value or uncollectability of any of the payments received by it.
10. Indemnification.
(a) It is specifically understood and agreed that this Assignment
shall not operate to place any responsibility or obligation whatsoever upon
Lender, or cause Lender to be, or to be deemed to be, a member in the Company
and that in accepting this Assignment, Xxxxxx neither assumes nor agrees to
perform at any time whatsoever any obligation or duty of Assignors relating to
the Collateral or under the Organizational Agreements or any other mortgage,
indenture, contract, agreement or instrument to which the Company is a party or
to which it is subject, all of which obligations and duties shall be and remain
with and upon Assignors (provided, however, that Assignors shall not be liable
for the performance of any liabilities or duties under the Organizational
Agreements which may result from written amendments thereof made by Lender
after the occurrence of an Event of Default).
(b) Assignors agree to indemnify, defend and hold Lender harmless
from and against any and all claims, expenses, losses and liabilities growing
out of or resulting from this Assignment (including, without limitation,
enforcement of this Assignment) or acts taken or omitted by Lender hereunder or
in connection herewith, except claims, expenses, losses or liabilities
resulting from Xxxxxx's gross negligence or wilful misconduct.
(c) Assignors upon demand shall pay to Lender the amount of any and
all reasonable expenses, including, without limitation, the reasonable fees and
disbursements of counsel actually incurred (including those incurred in any
appeal), and of any experts and agents, which Lender may incur in connection
with (i) the administration of this Assignment, (ii) the sale of, collection
from, or other realization upon, any of the Collateral, (iii) the exercise or
enforcement of any of the rights of Xxxxxx xxxxxxxxx, or (iv) the failure by
Assignors to perform or observe any of the provisions hereof beyond any
applicable period for notice and cure.
11. Security Interest Absolute. All rights of Xxxxxx, and the security
interests hereunder, and all of the obligations secured hereby, shall be
absolute and unconditional, irrespective of:
(a) Any lack of validity or enforceability of the Loan Documents or
any other agreement or instrument relating thereto;
(b) Any change in the time (including the extension of the maturity
date of the Note), manner or place of payment of, or in any other term of, all
or any of the Obligations or any other amendment or waiver of or any consent to
any departure from the Loan Documents;
(c) Any exchange, release or nonperfection of any other collateral
for the Obligations, or any release or amendment or waiver of or consent to
departure from any of the Loan Documents with respect to all or any part of the
Obligations; or
(d) Any other circumstance (other than payment of the Obligations in
full) that might otherwise constitute a defense available to, or a discharge
of, Assignors or any third party for the Obligations or any part thereof.
12. Amendments and Waivers. No amendment or waiver of any provision of
this Assignment nor consent to any departure therefrom shall in any event be
effective unless the same shall be in writing and signed by Xxxxxx, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given. No delay or omission of Lender to
exercise any right, power or remedy accruing upon any Event of Default shall
exhaust or impair any such right, power or remedy or shall be construed to be a
waiver of any such Event of Default, or acquiescence therein; and every right,
power and remedy given by this Assignment to Lender may be exercised from time
to time and as often as may be deemed expedient by Lender. Failure on the part
of Lender to complain of any act or failure to act which constitutes an Event
of Default, irrespective of how long such failure continues, shall not
constitute a waiver by Xxxxxx of Xxxxxx's rights hereunder or impair any
rights, powers or remedies consequent on any Event of Default. Assignors
hereby waive to the extent permitted by law all rights which Assignors have or
may have under and by virtue of the Uniform Commercial Code as enacted in the
State of New York, and any federal, state, county or municipal statute,
regulation, ordinance, Constitution or charter, now or hereafter existing,
similar in effect thereto providing any right of Assignors to notice and to a
judicial hearing prior to seizure by Xxxxxx of any of the Collateral. Each
Assignor hereby waives and renounces for itself, its heirs, successors and
assigns, all rights to the benefits of any statute of limitations and any
moratorium, reinstatement, marshaling, forbearance, valuation, stay, extension,
homestead, redemption and appraisement now provided or which may hereafter be
provided by the Constitution and laws of the United States and of any state
thereof, both as to itself and in and to all of its property, real and
personal, against the enforcement of this Assignment and the collection of any
of the Obligations.
13. Continuing Security Interest; Transfer of Note; Release of
Collateral. This Assignment shall create a continuing security interest in the
Collateral and shall (a) remain in full force and effect until the payment in
full in immediately available funds of the Obligations, (b) be binding upon
Assignors and their permitted successors and assigns, and (c) inure, together
with the rights and remedies of Lender hereunder, to the benefit of Xxxxxx and
the Banks and their respective successors, transferees and assigns. Upon the
payment in full in immediately available funds of the Obligations, the security
interest granted hereby shall terminate and all rights to the Collateral shall
revert to Assignors. Upon any such termination, Lender will, at Assignors'
expense, execute and deliver to Assignors such documents as Assignors shall
reasonably request to evidence such termination.
14. Modifications, Etc. Assignors hereby consent and agree that Lender
and the Banks may at any time and from time to time, without notice to or
further consent from Assignors, either with or without consideration, surrender
any property or other security of any kind or nature whatsoever held by it or
by any person, firm or corporation on its behalf or for its account, securing
the Obligations; substitute for any Collateral so held by it, other collateral
of like kind; agree to modification of the terms of the Loan Documents; extend
or renew the Loan Documents for any period; grant releases, compromises and
indulgences with respect to the Loan Documents for any period; grant releases,
compromises and indulgences with respect to the Loan Documents to any persons
or entities now or hereafter liable thereunder or hereunder; release any
guarantor, endorser or any other Person liable with respect to the Obligations;
or take or fail to take any action of any type whatsoever; and no such action
which Lender shall take or fail to take in connection with the Loan Documents,
or any of them, or any security for the payment of the Obligations or for the
performance of any obligations or undertakings of Assignors, nor any course of
dealing with Assignors or any other person, shall release Assignors'
obligations hereunder, affect this Assignment in any way or afford Assignors
any recourse against Lender.
15. Securities Act. In view of the position of Assignors in relation to
the Collateral, or because of other current or future circumstances, a question
may arise under the Securities Act of 1933, as amended, and all rules and
regulations issued pursuant thereto or any similar federal, state or local law,
rule, regulation or order (collectively the "Applicable Law") hereafter enacted
analogous in purpose or effect (such Act and any such similar law as from time
to time in effect being called the "Federal Securities Laws") with respect to
any disposition of the Collateral permitted hereunder. Assignors understand
that compliance with the Federal Securities Laws might very strictly limit the
course of conduct of Lender if Lender were to attempt to dispose of all or any
part of the Collateral in accordance with the terms hereof, and might also
limit the extent to which or the manner in which any subsequent transferee of
any Collateral could dispose of the same. Similarly, there may be other legal
restrictions or limitations affecting the Lender in any attempt to dispose of
all or part of the Collateral in accordance with the terms hereof under
applicable Blue Sky or other state securities laws or similar Applicable Law
analogous in purpose or effect. Assignors recognize that in light of the
foregoing restrictions and limitations Lender may, with respect to any sale of
the Collateral, limit the purchasers to those who will agree, among other
things, to acquire such Collateral for their own account, for investment, and
not with a view to the distribution or resale thereof. Assignors acknowledge
and agree that in light of the foregoing restrictions and limitations, the
Lender in its sole and absolute discretion may, in accordance with Applicable
Law, (a) proceed to make such a sale whether or not a registration statement
for the purpose of registering such Collateral or part thereof shall have been
filed under the Federal Securities Laws and (b) approach and negotiate with a
single potential purchaser to effect such sale. Assignors acknowledge and
agree that any such sale might result in prices and other terms less favorable
to the seller if such sale were a public sale without such restrictions. In
the event of any such sale, Lender shall incur no responsibility or liability
for selling all or any part of the Collateral in accordance with the terms
hereof at a price that Lender, in its sole and absolute discretion, may in good
xxxxx xxxx reasonable under the circumstances, notwithstanding the possibility
that a substantially higher price might have been realized if the sale were
deferred until after registration as aforesaid or if more than a single
purchaser were approached. The provisions of this paragraph will apply
notwithstanding the existence of a public or private market upon which the
quotations or sales prices may exceed substantially the price at which the
Lender sells.
16. Governing Law; Terms. THIS ASSIGNMENT SHALL BE GOVERNED BY AND
CONSTRUED UNDER THE INTERNAL LAWS OF THE STATE OF NEW YORK.
17. Setoff. Regardless of the adequacy of any collateral, during the
continuance of any Event of Default, any deposits (general or specific, time or
demand, provisional or final, regardless of currency, maturity, or the branch
of where such deposits are held) or other sums credited by or due from any of
the Banks to Assignors and any securities or other property of Assignors in the
possession of such Bank may be applied to or set off against the payment of
Obligations and any and all other liabilities, direct, or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising, of such
Person to such Bank.
18. Notices. Each notice, demand, election or request provided for or
permitted to be given pursuant to this Assignment shall be deemed to have been
properly given or served if given in the manner provided in the Credit
Agreement.
19. No Unwritten Agreements. THE WRITTEN LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
20. Miscellaneous. Time is of the essence of this Assignment. Title or
captions of paragraphs hereof are for convenience only and neither limit nor
amplify the provisions hereof. If, for any circumstances whatsoever,
fulfillment of any provision of this Assignment shall involve transcending the
limit of validity presently prescribed by applicable law, the obligation to be
fulfilled shall be reduced to the limit of such validity; and if any clause or
provision herein operates or would prospectively operate to invalidate this
Assignment, in whole or in part, then such clause or provision only shall be
held for naught, as though not herein contained, and the remainder of this
Assignment shall remain operative and in full force and effect.
21. Non-Recourse Obligations. The liability and obligations of the
Assignors and their respective officers, members, shareholders, partners or
other person or entity having an interest therein to perform and observe the
obligations contained in this Assignment shall be subject to and limited by the
terms of Section 32 of the Credit Agreement.
IN WITNESS WHEREOF, Assignors and Xxxxxx have executed this Assignment
under seal on the date first above written.
LENDER:
THE FIRST NATIONAL BANK OF BOSTON,
as Agent
By:/s/ Xxxx X. Xxxxxx
__________________________________
Xxxx X. Xxxxxx, Managing Director
ASSIGNORS:
PAMC CO-MANAGER INC.,
a Delaware corporation
By:/s/ Xxxxxxx Xxxxx
__________________________________
Title:
[CORPORATE SEAL]
PARK AVENUE FINANCING COMPANY, LLC,
a Delaware limited liability company, by its
managing member
By: PAFC Management, Inc., a Delaware
corporation
By: /s/ Xxxxxxx Xxxxx
__________________________________
Title:
[CORPORATE SEAL]
EXHIBIT "A"
ORGANIZATIONAL AGREEMENTS
EXHIBIT "B"
PROMISSORY NOTE LEGEND
"THIS NOTE HAS BEEN PLEDGED BY [INSERT NAME OF APPLICABLE ASSIGNOR]
("ASSIGNORS") TO THE FIRST NATIONAL BANK OF BOSTON, AS AGENT ("LENDER")
PURSUANT TO AN ASSIGNMENT OF MEMBER'S INTEREST DATED AS OF APRIL ___, 1997 (THE
"ASSIGNMENT"). ALL AMOUNTS PAYABLE TO ASSIGNORS PURSUANT TO THIS NOTE SHALL BE
PAID DIRECTLY TO LENDER AS REQUIRED BY THE ASSIGNMENT."
