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Exhibit 10(k)(5)(b)
ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS
FROM
XXXXX EQUITY, INC.
TO
FIRST UNION NATIONAL BANK OF FLORIDA
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
DATED AS OF APRIL 7 , 1997
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ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS
THIS ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS (this "Assignment")
is made and executed this 7th day of April, 1997, by
XXXXX EQUITY, INC., a Florida corporation ("Borrower"), whose address is 0000
Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 Attention:
X.X. Xxxxxx, Executive Vice President,
to and in favor of
FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association ("FUNB"),
whose address is 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 Attention:
Real Estate Portfolio Management, and XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, a New York banking corporation ("MGT"), whose address is 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx X'Xxxxxxx (FUNB and MGT together
being referred to as "Lender"),
which terms Xxxxxxxx and Lender, whenever hereinafter used will be construed to
refer to and include the heirs, legal representatives, executors,
administrators, successors and assigns of said parties.
BACKGROUND. Borrower is indebted to Lender (the "Loan") pursuant to
those certain Revolving Promissory Notes (the "Notes") secured by and subject
to, among other documents, that certain Deed of Trust and Security Agreement
(the "Deed of Trust") encumbering real property and improvements now or
hereafter located thereon located in Guilford County, North Carolina, and being
more particularly described on attached Exhibit A (the "Property"), and by a
certain Revolving Credit Loan Agreement (the "Loan Agreement") setting forth
certain terms, covenants and conditions with respect to such indebtedness, all
being dated as of even date herewith, given by Borrower to Lender, which Notes,
Deed of Trust and Loan Agreement, this Assignment, and other related loan
documents, together with any modifications, extensions and amendments thereof,
collectively are referred to herein as the "Loan Documents." In order to
further secure the Obligations, as such term is defined in the Loan Agreement,
Lender has requested, and Xxxxxxxx has agreed to provide, this Assignment on
the terms, covenants and conditions hereinafter set forth.
ACCORDINGLY, for good and valuable consideration, and as an inducement
to Lender to make the Loan to Borrower, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
for the purpose of
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further securing the observance and performance of the Obligations, Xxxxxxxx
and Xxxxxx hereby agree as follows:
1. Assignment of Contract Documents. Borrower hereby grants, transfers
and assigns to Lender, its successors and assigns, all of Borrower's right,
title and interest in and to those contracts, licenses, permits, agreements,
approvals and other documents described on attached Exhibit B (hereinafter,
together with any changes, extensions, revisions, modifications or guarantees
of performance thereof, called the "Contract Documents") relating to the
acquisition, development, ownership or use of the Property. Xxxxxx agrees that
upon the payment and performance in full of all the Obligations, this
assignment shall become null and be void and of no further force and effect.
2. Representations and Warranties. Borrower represents and warrants
to Lender, its successors and assigns, as follows:
(a) There is no assignment of any of Xxxxxxxx's rights under any of
the Contract Documents to any person or entity, other than Lender.
(b) Borrower is not in default under any of the Contract Documents and
knows of no default on the part of any other party to any of the Contract
Documents.
(c) Borrower has not done nor omitted to do any act so as to be
estopped from exercising any of its rights under any of the Contract Documents.
(d) Xxxxxxxx is not prohibited under any agreement with any other
person or under any judgment or decree from the execution and delivery of this
assignment or the performance of each and every covenant of Borrower hereunder
or in the Contract Documents, except as may be set forth in the Contract
Documents.
(e) No action has been brought or threatened which would in any way
prohibit or impair the execution and delivery of this assignment or the
performance of each and every covenant of Borrower hereunder or in the Contract
Documents.
3. Performance of Obligations under Contract Documents. Borrower will
(i) fulfill, perform and observe each and every condition and covenant of
Borrower contained in any of the Contract Documents; (ii) give prompt notice to
Lender of any claim of default under any of the Contract Documents given to
Borrower or given by Borrower, together with a complete copy or statement of
any information submitted or referenced in support of such claim; (iii) at the
sole cost and expense of Borrower and in the exercise of sound business
judgment, enforce the performance and observance of each and every covenant and
condition of the Contract Documents to be performed or observed by any other
party to any of the Contract Documents; and (iv) appear in and defend any
action growing out of or in any manner connected with any of the Contract
Documents.
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4. Modifications and Waivers of Contract Documents. Except in the
ordinary course of business and in the exercise of sound business judgment,
Borrower will not (i) modify the terms of the Contract Documents unless
required so to do by the terms of the Contract Documents or by law; or (ii)
waive, or release any person from the observance or performance of any
obligation to be performed under the terms of the Contract Documents or
liability on account of any warranty given by them, unless consented to by
Xxxxxx in its reasonable discretion.
5. Rights Assigned. The rights assigned hereunder include all of
Xxxxxxxx's right and title (i) to modify the Contract Documents; (ii) to
terminate the Contract Documents; and (iii) to waive, or release the
performance or observance of any obligation or condition of the Contract
Documents; provided, however, these rights shall not be exercised by Lender
unless Borrower is in default hereunder or under the other Loan Documents.
6. Defaults. Borrower shall be in default under this Assignment upon
the occurrence of any of the following events:
(a) Should Borrower fail to perform or observe any covenant of
Borrower contained in this Assignment, and the same is not cured within ten
(10) days after notice of such default is provided by Lender to Borrower;
(b) Should any representation or warranty of Borrower herein contained
prove untrue or misleading in any material respect; or
(c) Should Borrower fail to perform promptly any undertaking of
Borrower set forth in any of the Contract Documents, and the same is not cured
within ten (10) days after notice of such default is provided by Lender to
Borrower.
A default of Borrower under this Assignment will constitute an Event
of Default under the other Loan Documents.
7. Remedies.
(a) Upon the occurrence of a default hereunder, or an Event of Default
as defined in the Loan Agreement, Lender may exercise its remedies as provided
in the Loan Agreement, and in addition to such remedies may take possession of
all Contract Documents constituting plans and specifications, site plans,
surveys and architectural or engineering drawings or sketches reasonably
required by Xxxxxx in the exercise of its rights and remedies hereunder.
Furthermore, should Borrower fail to perform or observe any covenant or comply
with any condition contained in any of the Contract Documents and such failure
would cause irreparable injury to the Property including, but not limited to,
the revocation or expiration of any permit or license issued in connection with
the use of the Property, then Lender, but without obligation to do so, without
notice to or demand on Borrower, and without releasing Borrower from its
obligations to do so, may perform such covenant or condition and, to the extent
that Lender shall incur any costs or pay any monies in connection therewith,
including any costs or expenses of litigation,
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such costs, expense or payment shall be included in the indebtedness secured
hereby and by the Deed of Trust and shall bear interest from the payment of
such costs, monies or expenses thereof at the then applicable rate set forth in
the Notes for amounts advanced by Lender on behalf of Borrower.
(b) Xxxxxxxx hereby indemnifies and agrees to hold harmless Lender
from and against any and all losses, costs, damages, fees and expenses
whatsoever associated with the exercise of Xxxxxx's rights under this
Assignment and shall release Lender from all liability whatsoever for the
exercise of such rights and all actions taken pursuant thereto, not including
any negligent actions of Lender.
(c) The remedies herein provided shall be in addition to and not in
substitution for the rights and remedies which would otherwise be vested in
Lender in any of the other Loan Documents, all of which rights and remedies are
specifically reserved by Xxxxxx. The failure to exercise any of the remedies
herein provided shall not constitute a waiver thereof, nor shall the use of any
of the remedies hereby provided prevent the subsequent or concurrent resort to
any other remedy or remedies. It is intended that this clause shall be broadly
construed so that all remedies herein provided for or otherwise available to
Lender shall remain available to Lender until all sums due it by reason of this
Assignment have been paid to it in full and all obligations incurred by it in
connection with the construction or operation of the contemplated improvements
on the Property have been fully discharged without loss or damage to Lender.
8. No Obligation of Lender. Lender shall not be obligated to perform
or discharge any obligation of Borrower under any of the Contract Documents,
and Xxxxxxxx agrees to indemnify and hold Lender harmless against any and all
liability, loss or damage which Lender may incur under any of the Contract
Documents or under or by reason of this assignment and of and from all claims
and demands whatsoever which may be asserted against it by reason of an act of
Lender under any of the terms of this assignment or under the Contract
Documents, provided that Lender does not provide such acts in a negligent
manner.
9. Miscellaneous. This Assignment shall be binding upon Borrower, its
successors and assigns, and shall inure to the benefit of Xxxxxx, its
successors, successors in title and assigns. If any term of this Assignment or
any application thereof will be invalid, illegal or unenforceable, the
remainder of this Assignment and any other application of such term will not be
affected thereby. This Assignment shall be governed by and construed in
accordance with the laws of the State of North Carolina. In the event of
conflict between the terms and conditions of this Assignment and the terms and
conditions of the Loan Documents, the terms and conditions of the Loan
Documents will govern.
IN WITNESS WHEREOF, the undersigned have caused this Assignment to be
executed by their authorized officers as of the day and year first above
written.
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BORROWER:
XXXXX EQUITY, INC.,
Attest: a Florida corporation
By: /s/ Xxxxx X. Xxxxx By: /s/ X. Xxxxx Xxxxxxx
----------------------------- ----------------------------------
Name: Xxxxx X. Xxxxx Name: X. Xxxxx Xxxxxxx
-------------------------- --------------------------------
Its Asst. Secretary Title: Treasurer
--------- --------------------------------
[AFFIX CORPORATE SEAL]
LENDER:
FIRST UNION NATIONAL BANK OF
FLORIDA, a national banking association
Attest:
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------- -----------------------------------
Name: Xxxx Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
--------------------------- ---------------------------------
Its Asst. President Its Sr. Vice President
--------- -----------------------------------
[AFFIX CORPORATE SEAL]
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
a New York banking corporation
Attest:
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. X'Xxxxxxx
----------------------------- -----------------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxxxxx X. X'Xxxxxxx
--------------------------- ---------------------------------
Its Asst. Secretary Its Vice President
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[AFFIX CORPORATE SEAL]
Schedule of Exhibits:
Exhibit A Description of Property
Exhibit B Description of Contract Documents
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EXHIBIT A
DESCRIPTION OF PROPERTY
[NOT INCLUDED IN FORM 8-K FILING WITH SECURITIES AND EXCHANGE COMMISSION]
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EXHIBIT B
DESCRIPTION OF CONTRACT DOCUMENTS
(a) All contracts or agreements, now existing or hereafter executed, with
general contractors, subcontractors, materialmen, suppliers and/or
laborers in connection with or pertaining to the construction of
buildings or any other improvements on the Property.
(b) Any contracts or agreements for land surveyor services between
Borrower and any surveyor which is entered into with respect to the
surveys to be prepared for the Property; and all surveys, surveyor
costs, and maps prepared by any surveyor in connection with the
Property.
(c) Any agreements for architectural/engineering services between Borrower
and any architect/engineer which is entered into with respect to the
construction of improvements on the Property, and all drawings, plans
and specifications, and site plans prepared by any architect/engineer
in connection with the construction of improvements on the Property.
(d) All warranties and guaranties relating to improvements now or
hereafter constructed or installed on the Property.
(e) Any management agreement between Xxxxxxxx and a project operation
manager related to the Property.
(f) Any development fee agreement between Borrower and a project
development manager related to the Property.
(g) Any and all permits, licenses or other authorizations and approvals in
favor of or in the name of Borrower or running with title to
the Property, now or hereafter existing or granted, with respect to
the ownership, development, use and occupancy of the Property for its
intended purpose, including without limitation, building and
excavation permits, plat and subdivision approvals, certificates of
occupancy or completion, permits for driveway connection and highway
signalization, storm water management, water xxxxx, water distribution
systems, sewage collection systems, dredge and fill, environmental
protection, historical or archaeological protection, and any other
permit, license, or other authorization necessary or advisable to
comply with any governmental requirements concerning the Property or
its intended use, or to comply with any private agreement concerning
such Property to which Borrower is a party or under or in compliance
with which Borrower is bound to perform.
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(h) Any and all utility service agreements wherein a utility company
and/or a governmental utility service provider has agreed to provide
utilities to the Property.
(i) Any agreement to provide sewer effluent for irrigation of the Property.
(j) All contracts, binders or other agreements between Borrower and a
buyer of the Property for the purchase and sale of all or any part of
the Property, including such contract binders or other agreements
which may hereafter come into existence with respect to the Property.
