1
EXHIBIT 10(k)(7)(d)
ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS
FROM
XXXXX EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
2
--------------------------------------------------------------------------------
ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS
--------------------------------------------------------------------------------
THIS ASSIGNMENT OF CONTRACTS, LICENSES AND PERMITS (this "Assignment")
is made and executed this 30th day of December, 1998, by
XXXXX EQUITY, INC., a Florida corporation ("Borrower"), whose address is 0000
Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 Attention: X.X. Xxxxxx,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Lender"), for the
Lenders (as such term is defined in the Loan Agreement, as hereinafter defined),
whose address is 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: First Union Capital Markets Group. The terms Borrower 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 the
following Substitution Revolving Promissory Notes and Revolving Promissory
Notes: (i) Substitution Revolving Promissory Note dated as of even date herewith
made by Borrower payable to the order of FUNB in the original principal amount
of $45,000,000, (ii) the Substitution Revolving Promissory Note dated as of even
date herewith made by Borrower payable to the order of AmSouth in the original
principal amount of $35,000,000, (iii) the Substitution Revolving Promissory
Note dated as of even date herewith made by Borrower payable to the order of GFB
in the original principal amount of $35,000,000, (iv) the Revolving Promissory
Note dated as of even date herewith made by Borrower payable to the order of
Citizens in the original principal amount of $20,000,000, and (v) the Revolving
Promissory Note dated as of even date herewith made by Borrower payable to the
order of Compass in the original principal amount of $15,000,000 (the "Notes"),
secured by and subject to, among other documents, that certain Deed of Trust,
Assignment of Leases and Rents, and Security Agreement (the "Deed of Trust")
encumbering real property and improvements now or hereafter located thereon
located in Bexar County, Texas, and being more particularly described on
attached Exhibit A, (the "Property"), and by a certain Second Amended and
Restated Revolving Credit Loan Agreement dated as of December 30, 1998 (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
1
3
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.
Capitalized terms not defined herein shall have the meanings ascribed
to them in the Loan Agreement.
ACCORDINGLY, as an inducement to Lender to make the Loan to Xxxxxxxx,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and for the purpose of further securing the
observance and performance of the Obligations, Borrower and Xxxxxx hereby agree
as follows:
1. Assignment of Contract Documents. Borrower, to the extent the
same are assignable, 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.
2
4
(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.
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 an Event of Default has occurred 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
3
5
(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, 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
4
6
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 Lender by reason of
an act of Lender under any of the terms of this Assignment or under the Contract
Documents, provided that Xxxxxx does not perform 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 Texas. In the event of conflict between the terms and
conditions of this Assignment and the terms and conditions of the Loan
Agreement, the terms and conditions of the Loan Agreement will govern.
10. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, BORROWER, THE AGENT, AND THE LENDERS, THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH
ACKNOWLEDGE AND AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE BASED UPON OR
ARISING OUT OF THIS ASSIGNMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE
PARTIES RELATED THERETO. NONE OF THE PARTIES SHALL SEEK TO CONSOLIDATE ANY SUCH
ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE
PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES, ARE MADE
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL INDUCEMENT
FOR THE LENDERS TO MAKE THE LOAN TO BORROWER, AND SHALL BE SUBJECT TO NO
EXCEPTIONS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
5
7
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.
BORROWER:
XXXXX EQUITY, INC.
a Florida corporation
By: /s/ X. Xxxxx Xxxxxxx
------------------------------
Name: X. Xxxxx Xxxxxxx
----------------------------
Title: Treasurer President
------------------
LENDER:
FIRST UNION NATIONAL BANK, a
national association, as Agent
By:/s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name:Xxxxxx X. Xxxxxxxx
------------------------------
Title: Vice President
------------------
Schedule of Exhibits:
Exhibit A Description of Property
Exhibit B Description of Contract Documents
6
8
EXHIBIT A
DESCRIPTION OF PROPERTY
9
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
10
Borrower is a party or under or in compliance with which Borrower is
bound to perform.
(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.
