Exhibit 10 (ffff)
Prudential Loan No. 0-000-000
ASSIGNMENT OF AGREEMENTS
------------------------
THIS ASSIGNMENT OF AGREEMENTS (this "Assignment") is made as of August 28,
1997 by OVERSEAS PARTNERS (333), INC., an Illinois corporation ("Borrower") to
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation
("Lender").
RECITALS
A. Borrower has executed a promissory note of even date herewith in favor of
Lender in the principal sum of SIXTY-FIVE MILLION DOLLARS ($65,000,000.00)
(such note, together with any modifications, renewals, substitutions or
extensions thereof, is referred to hereinafter as the "Note") to evidence a
loan (the "Loan") from Lender to Borrower in like amount, which Loan is
secured by, among other things, a Mortgage, Security Agreement and Fixture
Filing of even date herewith (the "Mortgage") on the Property and by other
Loan Documents.
B. Borrower has entered into certain agreements pertaining to the operation of
the Property.
C. As a condition to the making of the Loan, Lender has required that Borrower
enter into this Assignment.
D. All capitalized terms not otherwise defined herein shall have the meanings
ascribed to such terms in the Mortgage.
AGREEMENT
NOW, THEREFORE, in consideration for the loan and other good and valuable
consideration, Borrower agrees as follows:
1. Assignment. Borrower hereby absolutely and unconditionally sells, assigns,
----------
transfers, sets over, grants a security interest in and delivers to Lender
all of Borrower's right, title and interest in and to all of those
contracts, agreements, commitments, licenses, equipment leases, permits,
warranties, guaranties, plans and specifications, architectural drawings,
approvals and reports relating to the construction, ownership, operation or
use of the Property (each such document is sometimes referred to hereinafter
as an "Agreement" and all such documents are sometimes collectively referred
to hereinafter
as the "Agreements"), including, without limitation, the agreements, if
any, listed in Exhibit A attached hereto and incorporated herein. Except
-------
as set forth below, this Assignment includes the immediate and continuing
right to collect and receive all sums which may become due to Borrower or
to which Borrower is now or shall hereafter become entitled or may demand
or claim arising or issuing from or out of the Agreements, the right of
Borrower to cure (and to seek reimbursement for the cost of such cure) any
default under the Agreements, the right of Borrower to provide consent or
approval under such Agreements, and the right of Borrower to enforce any
rights and receive any benefits under the Agreements; provided, however, so
long as no Event of Default shall have occurred under any of the Loan
Documents, Borrower shall have a license, revocable upon the occurrence of
an Event of Default, to collect and retain all sums which may become
payable to Borrower under the Agreements, and otherwise exercise all rights
of Borrower with respect thereto, subject to the limitations hereof and of
the Loan Documents.
2. Further Assurances. Borrower agrees to execute and deliver, at its cost,
------------------
upon Lender's request, any documents necessary to cause the specific
assignment of any particular agreement or document whatsoever, the
assignment of which is necessary, proper or desirable in Lender's judgment
to carry out the purposes of this Assignment.
3. Representations, Warranties and Covenants. Borrower hereby represents,
-----------------------------------------
warrants and covenants to Lender that (a) true, correct and complete copies
of the Agreements have been delivered to Lender, including all amendments,
exhibits or addenda thereto; (b) to the best of Borrower's knowledge the
Agreements were duly executed and delivered by the parties thereto and are
enforceable in accordance with their respective terms, except to the extent
limited by applicable bankruptcy, insolvency, liquidation, conservatorship,
receivership or other debtor relief laws affecting the enforcement of
creditor rights generally; (c) to the best of its knowledge no default
exists under any of the Agreements and no fact or circumstance exists under
any of the Agreements which, with the lapse of time or giving of notice or
both, would constitute a default by any party under such Agreements; (d)
Borrower has not previously assigned or otherwise transferred its interests
under any of the Agreements, and will not consent to suffer or permit any
such assignment or transfer without the prior written consent of Lender;
(e) Borrower has performed no act or executed any other instrument which
might prevent Lender from enjoying and exercising any of its rights and
privileges evidenced hereby; and (f) Borrower shall observe, perform, and
discharge duly and punctually all the obligations, terms, covenants,
conditions and warranties to be performed by it pursuant to the Agreements
the failure of which will have a material adverse effect on the Property.
4. Event of Default. The occurrence of an Event of Default under the Loan
-----------------
Documents shall also constitute a default under this Assignment. Lender,
upon the occurrence of an Event of Default, at its option, upon written
notice to Borrower, shall have the right to terminate and revoke the
license hereinabove granted to Borrower and shall have the complete right
and authority then or thereafter to exercise and enforce any and all of its
-2-
rights and remedies provided herein or by law. Borrower hereby authorizes
and directs the parties named in the Agreements, or the occupants of the
Property, upon receipt from the Lender of written notice to the effect that
an Event of Default exists under the Loan Documents, to cooperate fully
with Lender and to attribute to Lender all of Borrower's rights, powers and
privileges under the Agreements.
5. Nonresponsibility. The acceptance by Lender of this Assignment with all
-----------------
the rights, powers, privileges and authority so granted shall not obligate
Lender to assume any obligations under the Agreements or to take any action
thereunder or to expend any money or incur any expense or perform or
discharge any obligation, duty or liability under the Agreements or to
assume any obligation or responsibility for the nonperformance of the
provisions thereof by Borrower, unless and until Lender becomes the owner
of the Property and elects to continue said Agreements in full force and
effect.
6. Termination of Agreements. Provided either (a) Borrower has the right
-------------------------
pursuant to the subject Agreement to take the following action or (b) the
party to such Agreement other than Borrower consents to such action, upon
the occurrence of an Event of Default under any of the Loan Documents and
acceleration of the indebtedness thereunder, Lender shall have the right to
terminate without payment of any fee or penalty by Lender any Agreement
upon thirty (30) days' advance written notice to the parties to such
Agreement.
7. Power of Attorney. Upon the occurrence of an Event of Default and Lender's
------------------
acceleration of the indebtedness, Borrower does hereby constitute and
appoint Lender its true and lawful attorney-in-fact, which appointment is
coupled with an interest, to (a) exercise any and all rights under the
Agreements, and (b) demand, xxx for, collect, attach, levy, recover and
receive any and all sums which may become due to Borrower or to which
Borrower is now or shall hereafter become entitled or may demand or claim,
arising or issuing from or out of the Agreements and to give proper
notices, receipts, releases and acquittances therefor and after deducting
expenses of collection, to apply the net proceeds as a credit upon any
portion, as selected by Lender of the indebtedness evidenced by the Note,
notwithstanding the fact that the amount owing thereunder may not then be
due and payable or that the Note is adequately secured, and Borrower does
hereby authorize and direct the delivery and payment of such sums to Lender
and authorizes Lender to sign and deliver written instructions to this
effect in Borrower's name and stead, and does hereby ratify and confirm all
whatsoever that its said attorney shall do or cause to be done by virtue of
the powers granted hereby. The within appointment shall be irrevocable and
continuing and such rights, powers and privileges shall be exclusive to
Lender, its successors and assigns, so long as any part of the Note shall
remain unpaid; provided, however, Lender shall not exercise any of its
rights or authority as attorney-in-fact prior to the occurrence of an Event
of Default.
8. Exercise of Remedies. Nothing contained herein and no act done or omitted
---------------------
by Lender pursuant to the powers and rights granted it hereunder shall be
deemed to be a waiver by Lender of its rights and remedies under the Note,
the Mortgage or any other Loan
-3-
Document or a waiver or curing of any default hereunder or under the Note,
the Mortgage or any other Loan Document, and this Assignment is made and
accepted without prejudice to any of the rights and remedies possessed by
Lender under the terms of the Note, the Mortgage and the other Loan
Documents. The right of Lender to collect principal, interest and other
indebtedness secured hereby and by the Mortgage and to enforce any other
security therefor held by it may be exercised by Lender either prior to,
simultaneously with, or subsequent to any action taken by it hereunder.
9. Notices. All notices required to be delivered under this Assignment shall
-------
be made in accordance with the terms and provisions of the Mortgage.
10. Indemnity. Lender shall not be liable for any loss sustained by Borrower
---------
resulting from Lender's exercise of its rights under any of the Agreements,
or from any other act or omission of Lender under this Assignment unless
such loss is caused by the gross negligence or willful misconduct of
Lender. Borrower agrees to indemnify, defend and hold harmless Lender from
and against any and all claims, losses, liabilities, costs and expenses
arising out of or resulting from this Assignment, including, without
limitation, the exercise or enforcement of any of the rights of Lender
hereunder; and Borrower shall reimburse Lender on demand for any and all
sums, including, without limitation, reasonable attorneys' fees and
expenses, incurred by Lender in connection therewith.
11. Termination. This Assignment shall terminate upon payment in full of the
-------------
Indebtedness evidenced by the Note.
12. Successors and Assigns. The covenants and agreements herein contained
----------------------
shall bind and inure to the benefit of the parties hereto and their
successors and assigns.
13. Governing Law. This Assignment shall be governed by and construed in
-------------
accordance with the laws of the State in which the Property is located.
14. Limitation on Personal Liability. Reference is hereby made to the portion
---------------------------------
of the Note entitled "Limitation on Personal Liability" which provision is
hereby incorporated herein by reference to the same extent as if it were
set forth herein.
[THIS SPACE INTENTIONALLY LEFT BLANK]
-4-
IN WITNESS WHEREOF, the undersigned Borrower has executed and delivered this
Assignment to Lender and has made it effective as of the date first set forth
above.
BORROWER:
OVERSEAS PARTNERS (333), INC., an Illinois corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: President
-5-
EXHIBIT A
---------
Agreements
--------------------------------------------------------------------------------
SERVICE CONTRACTS SUMMARY
--------------------------------------------------------------------------------
PROPERTY 000 XXXX XXXXXX XXXXX 333 WEST XXXXXX
OWNERSHIP Overseas Partners (333), Inc. Chicago
XXXXX XX 826,632 Xxxxx Xxxxx
RENTABLE SF 1983 312/855-0540
YEAR BUILT 08/26/97
-------------------------------------------------------------------------------------------------
Type of Original Current
Service Contractor Comm. Date Exp. Date Annual Cost
-------------------------------------------------------------------------------------------------
Janitorial Admiral Maintenance Service 09/01/95 08/31/96 $915,483
Security ABM Security 10/01/96 09/30/97 $339,423
Elevator Xxxx Elevator 01/01/96 12/31/01 $251,568
Exterior Landscaping The Xxxxxxxx Group,Ltd 04/01/95 11/30/97 $ 7,936
Interior Landscaping Phillip's Interior Plants 05/01/97 04/30/98 $ 21,113
Engineering Unicco Service Company 08/15/96 12/31/98 $540,061
Fire Alarm Advanced Fire & Security 09/01/94 08/31/97 $ 10,500
Systems
Card Access Mirtech 01/01/94 12/31/96 $ 5,500
Parking General Parking Corporation 01/01/95 12/31/96 $ 5,400
Metal Refinishing Metal Maintenance 11/01/95 12/31/98 $ 3,216
Waste Disposal BFI Waste Removal 09/01/97 08/31/98 $ 8,592
Energy Mgmt Xxxxxx & Staefa 01/01/94 03/31/98 $ 28,608
Window Washing Chicago Window Cleaning 04/14/97 04/15/98 $ 28,162
Window Equip maint Skyline Maintenance 03/01/93 02/28/96 $ 23,151
Revolving Door maint Midwest Door Services 11/01/93 10/31/97 $ 2,300
Energy Trending Servidyne 01/01/94 12/31/97 $ 384
Exterminating C&C Pest Control 08/01/96 07/31/97 $ 3,380
Water Treatment Nalco $ 15,696
