EXHIBIT 10.2
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment"), dated as of
February 12, 2002 between AT&T Wireless Services, Inc., a Delaware corporation
("AT&T"), in its own capacity and as successor in interest to XxXxx Property
Investments, Inc., a Washington corporation ("Assignor") and AAS, Inc., a
Delaware corporation ("Assignee").
WHEREAS, Assignor is the tenant under that certain Net Lease Agreement
dated October 31, 1995 (the "Original Lease") among L&A Xxxxxxx Family Partners,
L.P., a California limited partnership, Xxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxx and J.
Xxxxxxx Xxxxxxxx, as successor Trustees of the Xxxxxx X. Xxxxx 1992 Revocable
Trust, and Xxx Enterprises, a California general partnership, successors in
interest to Opus/Puget Western I, LLC, a Delaware limited liability company
(collectively, "Landlord"), XxXxx Property Investments, Inc. and AT&T; as
amended by that Amendment 1 to Net Lease Agreement dated as of January 3, 1996
(the "1st Amend."); as amended by that Amendment 2 to Net Lease Agreement dated
as of September 18, 1996 (together with the Original Lease and the 1st Amend.,
the "Lease"); and
WHEREAS, Assignor desires to assign the Lease to Assignee, and Assignee
desires to accept such assignment of the Lease from Assignor and to assume
Assignor's obligations under the Lease accruing on and after the Effective Date
(as defined below).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee agree as
follows:
1. Assignor does hereby assign, transfer, set over and convey unto
Assignee all right, title and interest of Assignor in, to and under the Lease.
2. Assignee hereby accepts such assignment of the Lease from Assignor and
assumes all of the obligations imposed upon the tenant under the Lease which
accrue from and after the Effective Date.
3. This Assignment shall be effective as of the date of closing (the
"Effective Date") with respect to the sale by AT&T of certain of its assets to
Assignee, provided the Effective Date shall not be more than 60 days from the
date hereof.
4. Assignee indemnifies, defends and holds harmless Assignor from and
against any and all claims, damages, costs, liabilities, expenses and causes of
action (including reasonable attorneys' fees and costs) arising under the Lease
from and after the Effective Date. Assignee's failure to pay to Assignor any
amounts due from Assignee pursuant to this Paragraph ("Indemnification
Obligations") within ten (10) business days after written demand to Assignee
shall constitute a default under this Assignment.
ASSIGNMENT AND ASSUMPTION AGREEMENT PAGE 1
5. Assignor indemnifies, defends and holds harmless Assignee from and
against any and all claims, damages, costs, liabilities, expenses and causes of
action (including reasonable attorneys' fees and costs) arising under the Lease
prior to the Effective Date.
6. In order to secure its obligations to pay the Indemnification
Obligations, Assignee hereby agrees to provide to Assignor an irrevocable,
stand-by letter of credit ("LOC") in the initial amount of $4,206,608.00, which
amount is equal to the sum of monthly basic rent payments payable under Section
3.1 of the Lease from the Effective Date through the expiration date of the
initial term of the Lease. The LOC shall be delivered by Assignee to Assignor as
of the Effective Date, in substantially the form of EXHIBIT A attached hereto.
The LOC shall be issued for a one (1) year term with automatic renewals until
the date ninety (90) days after the expiration or sooner termination of the
Lease. If Assignor receives written notice from the issuing bank that the LOC
will not be so renewed, Assignor will promptly notify Assignee, and if Assignee
does not provide a replacement or substitute LOC within ten (10) business days
after such notice, Assignor may draw on the LOC and hold the proceeds as a cash
deposit. In the event Assignee exercises any option to extend the term of the
Lease, Assignee shall provide to Assignor, at least thirty (30) days prior to
the commencement of each renewal term, an LOC in the initial amount equal to the
sum of monthly basic rent payments payable under Section 1.2(c) of the Lease
from the commencement through the expiration date of such renewal term. Provided
that Assignee is not in default under this Assignment, the outstanding amount of
the LOC for the initial term or any renewal term of the Lease shall, on each
one-year anniversary of its issuance date, decrease by the amount equal to the
sum of monthly basic rent payments payable under the Lease during the previous
one-year period (which sum, during the initial term of the Lease, is
$901,416.00). The terms according to which Assignor may make draws under the LOC
are as follows:
(a) The LOC shall be payable at sight, upon draft of Assignor,
accompanied by the LOC and a certificate signed by a duly authorized
officer of Assignor that "Assignee has committed a default under that
certain Assignment and Assumption Agreement dated as of February __, 2002,
between Assignor and Assignee." In such event, Assignor shall have the
right to draw up to the full amount of the LOC and use the proceeds, or so
much as is necessary, in payment of any Indemnification Obligations due
from Assignee and in default hereunder.
(b) Assignor may apply all or part of any cash proceeds to the
payment of any sum in default. The amount of any cash proceeds held by
Assignor and not applied by Assignor under the provisions hereof shall be
refunded to Assignee within one hundred five (105) days after the
expiration or sooner termination of the Lease. Assignee shall be entitled
to any interest accrued on cash deposits held by Assignor as a result of a
draw of the LOC.
7. With respect to the Lease, Assignee further agrees as follows: (a)
Assignee shall make no amendments or modifications to the Lease that would
increase Assignee's monetary obligations under the Lease or otherwise materially
increase or have a material adverse affect on Assignor's obligations under this
Assignment without the prior written consent of Assignor, (b) Assignee shall
promptly send to Assignor copies of all material
ASSIGNMENT AND ASSUMPTION AGREEMENT PAGE 2
correspondence, notices, agreements and other items sent to or received from
Landlord which are related to Assignor's ongoing liability under the Lease, and
(c) Assignee shall provide a certification to Assignor, from time to time within
ten (10) business days after request, which certification shall be in accordance
with Section 20.7 of the Lease.
8. Xxxxx Corporation, a Delaware corporation, hereby agrees to provide to
Landlord, concurrently with the execution of this Assignment, a guaranty of the
obligations of Assignee arising under the Lease in substantially the form
attached hereto as EXHIBIT B.
9. Assignee hereby acknowledges that, pursuant to a separate lease with
Landlord, Assignor is maintaining an antenna and related fixtures, cables,
equipment and accessories (collectively, the "Communication Facility") on the
roof of the building in which the premises covered by the Lease are located. In
addition, Assignor maintains certain related equipment related to the
Communication Facility within such building (the "Supporting Equipment").
Notwithstanding anything to the contrary contained in this Assignment or any
other document relating to the assignment of the Lease to Assignee, Assignor
reserves to itself and its successors and assigns, throughout the remaining term
of the Lease and any extensions or renewals thereof, (a) a license to maintain
the Supporting Equipment at its current location within the building, at no
charge to Assignor, and (b) the right to access, upon reasonable prior notice to
Assignee (except that no notice shall be required in case of emergency), the
Communication Facility and the Supporting Equipment for the purposes of
maintaining, operating, repairing and replacing the Communication Facility and
the Supporting Equipment. In exercising its right of access, Assignor shall
comply with Assignee's reasonable security and safety restrictions and controls.
Assignee shall not, nor shall Assignee permit its employees, agents, invitees or
licensee's to, in any way interfere with Assignor's rights reserved pursuant to
this Section. Assignee shall not alter the current flow of electrical power to
the Communication Facility and the Supporting Equipment, and Assignor shall, at
its sole option, either reimburse Assignee for the cost, as reasonably
determined by Assignee and Assignor, of all electricity consumed by the
Communication Facility and the Supporting Equipment, or install a separate
electricity meter and pay the supplier directly for the electricity consumed by
the Communication Facility and the Supporting Equipment. Prior to permitting any
intentional alteration or interruption of electrical power to the Communication
Facility or the Supporting Equipment, Assignee shall notify Assignor and
reasonably cooperate with Assignor to minimize interference with Assignor's
operation of the Communication Facility.
10. This Assignment shall be binding upon and inure to the benefit of
Assignor and Assignee and their respective successors and assigns.
11. This Assignment may be executed in two or more counterparts, each of
which shall be deemed to be an original but all of which shall constitute one
and the same agreement.
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IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to
be executed and delivered by their duly authorized officers as of the date first
written above.
ASSIGNOR:
AT&T WIRELESS SERVICES, INC., a Delaware
corporation, in its own capacity and as
successor in interest to XxXxx Property
Investments, Inc.
By /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
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Title: President & CEO, FWS
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ASSIGNEE:
AAS, INC., a Delaware corporation
By /s/ XXXXXX X. XXXXX
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Name: Xxxxxx Xxxxx
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Title: Chief Financial Officer
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Executing this Assignment solely for the purpose stated in Paragraph 8
herein.
GUARANTOR:
XXXXX CORPORATION, a Delaware corporation
By /s/ XXXXXX X. XXXXX
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Name: Xxxxxx Xxxxx
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Title: Chief financial Officer
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