Exhibit 10.5
ASSIGNMENT OF AGREEMENTS, PERMITS AND CONTRACTS
This Assignment of Agreements, Permits and Contracts ("Assignment") is made
as of March 17, 2004, by AMERICAN ROCK SALT COMPANY LLC, a New York limited
liability company, whose mailing address is X.X. Xxx 000, Xxxxxxxxx, Xxx Xxxx
00000-0000 ("Borrower") to MANUFACTURERS AND TRADERS TRUST COMPANY, a New York
banking corporation, as Administrative Agent, having an address at One M&T
Plaza, Buffalo, New York 14240 ("Lender").
RECITALS:
A. Borrower has entered into the Credit Agreement dated as of the date
hereof, as the same may be amended, supplemented, restated or otherwise modified
from time to time (the "Credit Agreement") with the Lender, and the several
banks and other financial institutions from time to time parties thereto (the
"Lenders"). Capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Credit Agreement.
B. It is a condition precedent to the obligation of the Lenders to
make the various extensions of credit under the Credit Agreement that the
Xxxxxxxxxx County Industrial Development Agency (the "XXX") and the Borrower
secure repayment of the Borrower's Indebtedness by executing and delivering the
XXX/Borower Mortgage which grants the Lenders a first lien on the property
encumbered thereby (the "Property").
C. The Lenders are unwilling to make the various extensions of credit
under the Credit Agreement unless Borrower in the manner hereinafter set forth
assigns to the Lenders as additional security for the payment of the Borrower's
Indebtedness and the observance and performance by Borrower of the terms,
covenants and conditions contained in the Credit Agreement, the XXX/Borrower
Mortgage and the other Loan Documents on the part of Borrower to be observed and
performed all of the Borrower's right, title and interest in and to all permits
and construction contracts, and all licenses, franchise, management, service,
supply and maintenance contracts and agreements, and any other agreements,
permits or contracts of any nature whatsoever now or hereafter obtained or
entered into by Borrower with respect to the improvement, ownership, operation,
maintenance and administration of the Property (collectively, the "Agreements").
AGREEMENT:
For good and valuable consideration the parties hereto agree as
follows:
1. Assignment of the Agreements. As additional collateral security for
the Borrower's Indebtedness pursuant to the Credit Agreement and the observance
and performance by Borrower of the terms, covenants and conditions of the Credit
Agreement, the XXX/Borrower Mortgage and the other Loan Documents on the part of
the Borrower to be observed or performed, Borrower hereby transfers, sets over
and assigns to Lender all of Borrower's right, title and interest in and to the
Agreements.
Borrower does hereby make, constitute and irrevocably appoint Lender,
its true and lawful attorney, irrevocable in its name, place and stead, for the
purposes stated, to ask, demand, xxx for, attach, levy, recover and receive any
and all sums due or to become due Borrower under the Agreements, giving and
granting unto the Lender full power and authority to do and perform all and
every act and things whatsoever necessary as fully to all intents and purposes
as Borrower might or could do if personally present, with full power of
substitution and revocation, hereby ratifying all that the Lender or its
substitute shall lawfully do or cause to be done by virtue thereof. Nothing
herein shall constitute an assumption of any obligations under the Agreements by
the Lender, and the Lender shall have no obligations under the Agreements.
2. Borrower's Covenants. Borrower hereby covenants to Lender that
during the term of this Assignment, but only to the extent that any Agreement is
a Material Contract: (a) Borrower shall fulfill and perform each and every term,
covenant and provision of the Agreements to be fulfilled or performed by
Borrower thereunder, if any, (b) Borrower shall, in the manner provided for in
this Assignment, give prompt notice to Lender of any notice received by Borrower
under any of the Agreements, together with a complete copy of any such notice,
(c) Borrower shall enforce, short of termination thereof, the performance and
observance, of each and every term, covenant and provision of the Agreements to
be performed or observed, if any, and (d) Borrower shall not terminate or amend
any of the terms or provisions of any of the Agreements, except as may be
permitted pursuant to the terms of the Agreements.
3. Governing Law. This Assignment shall be deemed to be governed,
construed, applied and enforced in accordance with the laws of the state of New
York.
4. Notices. All notices or other written communications hereunder
shall be deemed to have been properly given if given in the same manner provided
for the delivery of notices and other written communications in the Credit
Agreement.
5. No Oral Change. This Assignment, and any provisions hereof, may not
be modified, amended, waived, extended, changed, discharged or terminated orally
or by any act or failure to act on the part of Borrower or Lender, but only by
an agreement in writing signed by the party against whom enforcement or any
modification, amendment, waiver, extension, change, discharge or termination is
sought.
6. Liability. If Borrower consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several. This Assignment shall be binding upon and inure to the benefit of
Borrower and Lender and their respective successors and assigns forever.
7. Inapplicable Provisions. If any term, covenant or condition of this
Assignment is held to be invalid, illegal or unenforceable in any respect, this
Assignment shall be construed without such provision.
8. Headings, etc. The headings and captions of various paragraphs of
this Assignment are for convenience of reference only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
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9. Duplicate Originals. This Assignment may be executed in any number
of duplicate originals and each duplicate original shall be deemed to be an
original.
10. Number and Gender. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural and vice
versa.
11. Miscellaneous. Wherever pursuant to this Assignment (i) Lender
exercises any right given to it to approve or disapprove, (ii) any arrangement
or term is to be satisfactory to Lender, or (iii) any other decision or
determination is to be made by Lender, the decision of Lender to approve or
disapprove, all decisions that arrangements or terms are satisfactory or not
satisfactory and all other decisions and determinations made by Lender, shall be
in the sole and absolute discretion of Lender and shall be final and conclusive,
except as may be otherwise expressly and specifically provided herein.
BORROWER:
AMERICAN ROCK SALT COMPANY LLC
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice Chairman
STATE OF NEW YORK)
COUNTY OF MONROE) ss.:
On the 17th day of March in the year 2004 before me, the undersigned,
a Notary Public in and for said State, personally appeared Xxxx X. Xxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
/s/ Xxxxxx X. Xxxxx
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Notary Public
XXXXXX X. XXXXX
Notary Public, State of New York
No. 02RU6093688
Qualified in Monroe County
Commission Expires June 9, 2007
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