EXHIBIT 10.6
ASSIGNMENT OF CONTRACT DOCUMENTS AND INTANGIBLES
THIS ASSIGNMENT made and entered into as of this ______ day of October,
2003, between NAVARRE CORPORATION, a Minnesota corporation ("Assignor"), whose
address is 0000 00xx Xxxxxx Xxxxx, Xxx Xxxx, XX 00000, to THE BUSINESS BANK
("Assignee"), whose address is 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx,
XX 00000.
PRELIMINARY STATEMENT OF FACTS:
A. Pursuant to a certain Construction Loan Agreement between the
Assignor and the Assignee dated of even date herewith ("Construction Loan
Agreement") the Assignee has agreed to make a loan to the Assignor in the amount
of up to Four Million Five Hundred and Fifty Thousand and 00/100 Dollars
($4,550,000.00) ("Construction Loan") to finance the construction of an office
warehouse in the City of New Hope, County of Hennepin, State of Minnesota ("the
Project").
B. The Construction Loan is evidenced by a Promissory Note dated
of even date herewith executed and delivered by Assignor to Assignee in the
principal sum of Four Million Five Hundred and Fifty Thousand and 00/100 Dollars
($4,550,000.00) ("Note").
C. The Note is secured by, among other things, a Mortgage and
Security Agreement and Fixture Financing Statement and Assignment of Rents and
Leases creating a mortgage lien against and a security interest in the Project
and other property dated of even date herewith, executed and delivered by the
Assignor, as mortgagor, to the Assignee, as mortgagee ("Mortgage").
D. Assignee requires as a condition to making the Loan, that the
Assignor execute and deliver this Assignment to the Assignee.
NOW, THEREFORE, in consideration of the foregoing and in order to
induce the Assignee to make the Loan, the Assignor agrees as follows:
1. ASSIGNMENT. Assignor hereby transfers and assigns to Assignee and
grants to Assignee a security interest in all of its right, title and
interest in and to the following and all proceeds and products arising
therefrom ("Collateral"):
a. Plans and Specifications. Any and all Plans and Specifications
now or hereafter prepared and used in the Project by Xxxxxxx
Construction Co., the Contractor or by others, and all
surveys, site plans, drawings and papers related thereto, as
well as any and all design documents prepared and delivered in
connection with the Project ("Plans and Specifications").
b. Construction Contracts. Each contract or agreement for the
construction and equipping of the Project, together with all
right, title and interest of Assignor in and to any existing
or future changes, extensions, revisions, modifications,
guarantees or performance, or warranties of any kind
thereunder including,
without limitation, a certain Standard Form of Agreement
between Navarre Corporation, as Owner, and Xxxxxxx
Construction Co., as Contractor, dated September 15, 2003
("Construction Contract").
c. Architects Contract. Each contract or agreement for the design
of the Project, together with all rights, title and interest
of Assignor in and to any existing or future changes,
extensions, revisions, modifications, guarantees or
performance, or warranties of any kind thereunder including,
without limitation, a certain Standard Form of Agreement
Between Owner and Architect entered into between Navarre
Corporation, as Owner, and KKE Architects, Inc., as Architect
dated December 17, 2002 ("Architects Contract").
d. Construction Manager's Contract. The Project Management
Service Agreement between Assignor as Client and Glasgow
Advisory Services Incorporated as Consultant dated July 7,
1998 ("Construction Manager's Contract").
e. Intangibles. All contracts, licenses, permits, construction
management agreements, records, files, governmental approvals
and intangibles used, useful or necessary to the construction
of the Premises together with all soil reports, building
permits, variances, licenses, utility permits and other
permits and agreements relating to the construction or
equipping of the improvements on the Premises, or the
operation or maintenance of the Premises, including, without
limitation, all warranties and contract rights
("Intangibles").
f. Service Agreements. All rights and intents of Assignor in and
under any and all service agreements and other agreements
relating to the operation, maintenance and repair of the
Project and the buildings and improvements thereon ("Service
Agreements").
g. Building Supplies. All building supplies and materials ordered
or purchased for use in connection with the construction and
equipping of the Project and which is specifically
identifiable in a disbursement request and was paid for with
proceeds of a disbursement of construction loan funds made by
Title as defined in the Construction Loan Agreement ("Building
Supplies").
h. Insurance. All awards, payments, proceeds now or hereafter
obtainable by Assignor under any policy of insurance insuring
the Premises including but not limited to the proceeds of
casualty insurance, title insurance, loss of rents insurance
or other insurance maintained with respect to the Premises
("Insurance Awards").
2. REPRESENTATIONS AND WARRANTIES. Assignor represents and warrants to the
Assignee and agrees as follows:
a. Assignor will not without the prior written consent of
Assignee modify, amend, supplement, terminate, surrender or
change in any manner whatsoever the Collateral except for
change orders permitted by the Construction Loan Agreement.
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b. The Collateral is free and clear of all liens, security
interests, assignments and encumbrances other than the
assignment and security interest created by this instrument or
other instrument granting a security interest or lien to the
Assignor in connection with the Loan.
c. Assignor has the full right, power and authority to assign the
Collateral free and clear of any and all liens, security
interests and assignments.
d. Assignor will keep the Collateral free from any lien,
encumbrance, assignment or security interest whatsoever, other
than this assignment and security interest.
e. Assignor will from time to time and at the request of Assignee
execute such documents and pay the cost of filing and
recording the same and do such other acts and things as
Assignee may request to establish and maintain a perfected
security interest in the Collateral which is valid and
superior to all liens, claims or security interests
whatsoever.
f. There have been no defaults on the part of the Assignor under
any of the Collateral nor any default by any of the other
parties to the Collateral.
g. Any contracts constituting the Collateral are in full force
and effect and the valid and legally binding obligations of
the parties thereto, enforceable in accordance with their
terms.
3. Covenants of Assignor. Assignor covenants and agrees that:
a. It shall perform each and every one of its duties and
obligations under the Collateral and observe and comply with
each and every term, covenant, condition, agreement,
requirement, restriction and provision of the Collateral.
b. It shall give prompt notice to Assignee of any claim of or
notice of default under any Collateral known or given to it
together with a copy of any such notice or claim if in
writing.
c. At the sole cost and expense of the Assignor it will enforce
the full and complete performance of each and every duty and
obligation to be performed by the other parties to the
Collateral.
d. It will appear in and defend any action arising out of or in
any manner connected with the Collateral and the duties and
obligations of the Assignor thereunder.
e. It will not without the prior written consent of Assignee
modify, amend, supplement, terminate, surrender or change in
any manner whatsoever the Collateral.
4. PURPOSE OF ASSIGNMENT. This Assignment is made for the purpose of
securing the performance and observance by the Assignor of all of the
terms and conditions of the Note, Construction Loan Agreement, Mortgage
and any other security interests given in
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connection with the Loan and in order to induce the Assignee to make
the Loan to the Assignor.
5. ASSIGNEE'S RIGHTS TO ACT ON BEHALF OF THE ASSIGNOR. The Assignor hereby
appoints the Assignee and its agents and assigns effective upon an
Event of Default, its agent and attorney-in-fact and authorizes the
Assignee to act on its behalf either in the name of the Assignor or the
Assignee on connection with the exercise of any of the rights of the
Assignor under the Collateral. Assignor agrees to reimburse the
Assignee on demand for any payment expense incurred by the Assignee, or
its agents or attorneys, pursuant to the aforesaid authorization and
the Assignee may charge its payments or expenses to the indebtedness
evidenced by the Note. The Assignor hereby irrevocably instructs,
directs, authorizes and empowers all parties to the Collateral to
recognize the claims of the Assignee, or its successors or assigns
hereunder, and to act upon any instructions or directions of the
Assignee without investigating the reason for any action taken by the
Assignee. The foregoing irrevocable authorization is coupled with an
interest that shall not be revoked for any reason, including the
dissolution, liquidation, death, incompetency or insolvency of the
debtor. The sole signature of the Assignee shall be sufficient for the
exercise of any rights under this Assignment and any party to the
Collateral acting upon the directions of the Assignee shall be further
discharged and released from any claim made by the Assignor that such
actions are contrary to the terms and conditions of the Collateral.
6. NO ASSUMPTION BY ASSIGNEE. It is understood and agreed that the
Assignee does not assume any of the obligations or duties of the
Assignor concerning the Collateral.
7. SCOPE OF ASSIGNMENT. The rights assigned by this Assignment include but
are not limited to all of the Assignor's interest in the Collateral
including all right, power, privilege and option to modify or amend the
Collateral, terminate any Collateral, or waive or release the
performance or satisfaction of any duty or obligation under the
Collateral; provided, prior to any Event of Default the Assignor shall
have the sole right to use the Collateral for the purposes stated
therein.
8. EVENTS OF DEFAULT. The occurrence of any the following events shall
constitute an Event of Default under this Assignment:
a. Any failure by the Assignor to fully and complete perform any
of the duties or obligations of the Assignor under this
Assignment or any failure by the Assignor to fully and
completely observe, satisfy and comply with all terms,
covenants and conditions of this Assignment.
b. Any representation or warranty of Assignor contained in this
Assignment shall be untrue or misleading in any material
respect.
c. An Event of Default as defined therein occur under the
Construction Loan Agreement or the Mortgage or any other
security instrument given to secure the Note.
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d. Any Default (as defined therein) shall occur under the Note
including default in any payments required to be made under
the Note beyond any grace period provided for in the Note.
9. REMEDIES. Upon the occurrence of an Event of Default Assignee a) may,
to the fullest extent permitted under applicable law, without demand or
presentment or other demand, advertisement, or notice of any kind
(except such notice as may be required under the Code) and all of which
are, to the extent permitted by law, hereby expressly waived, forthwith
realize upon the Collateral and shall hold the Collateral free and
clear of the interest of the Assignor therein and shall be entitled to
own, hold, dispose of and otherwise deal with the Collateral in its own
right and name as its own property, b) in the name of Assignor or
otherwise, exercise any right of the Assignor to demand, collect,
receive and receipt for, compromise, compound, settle and give
acquittance for and prosecute and discontinue any suits or proceedings
in respect of any or all of the Collateral; c) to the fullest extent
permitted under applicable law, take any action which Assignee may deem
necessary or desirable in order to realize on the Collateral,
including, without limitation, the power to perform or direct the
performance by any other party to any contracts which are a part of the
Collateral; d) to indorse in the name of Assignor any checks, drafts,
notes, or other documents which are Collateral or are received in
payment or on account of the Collateral; e) exercise any of the
remedies available to a secured party under the Code; or f) proceed to
protect and enforce this Agreement by suits or proceedings or otherwise
or for the enforcement of any other legal remedy or equity available to
Assignee. The Assignor expressly recognizes that the Collateral is of a
nature not subject to a public or private sale and that the Collateral
has no market value of its own and is expressly subject to restrictions
on transfer or sale of an interest therein and that therefore no
private or public sale is feasible. In the event that any notice is
required to be given under the Code such requirements for reasonable
notice shall be satisfied by giving at least ten (10) days' notice
prior to the event or thing given rise to the requirement of notice.
The foregoing remedies are cumulative of and in addition to and are not
restrictive of or in lieu of, the rights or remedies provided for or
allowed in the Construction Loan Agreement, the Mortgage or any other
instrument given for the security of the Loan, or as provided for or
allowed by law or in equity.
10. SELF HELP BY ASSIGNEE. Should the Assignor fail to perform any of its
duties and obligations under the Collateral within any applicable grace
or cure period, the Assignee may, without obligation to do so and
without releasing the Assignor from its obligation to perform such
duties and obligations and to the extent that the Assignee shall incur
any costs or pay any monies in connection therewith, including without
limitation any costs or reasonable expenses of counsel for the
Assignee, such costs, expenses or payments shall be added to the
indebtedness evidenced by the Note and shall bear interest from the
date advanced or incurred at the interest rate as stated in the Note.
11. INDEMNITY. The Assignee shall have no obligation to perform or satisfy
any duty or obligation of Assignor under the Collateral. Assignor shall
and does hereby indemnify, defend and hold the Assignee harmless from
and against and in respect of any and all actions, causes of action,
suits, claims, demands, judgments, proceedings and investigations (or
any appeal thereof or relative thereto or other review thereof) of any
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kind or nature whatsoever, arising out of, by reason of, as a result of
or in connection with the Collateral, except to the extent caused by
the gross negligence or willful act of Assignee, and any and all
liabilities, damages, losses, costs, expenses (including fees of
counsel and expenses and disbursements of counsel), amounts of
judgment, assessments, fines or penalties, and amounts paid in
compromise or settlement, suffered, incurred or sustained by Assignee
as a result of, or reason of or in connection with any of the matters
above, except to the extent caused by the gross negligence or willful
act of Assignee.
12. UNIFORM COMMERCIAL CODE. To the extent that this Assignment may be
governed by the provisions of the Uniform Commercial Code now or
hereafter in effect, this agreement shall be deemed to be a security
agreement within the meaning of the Code, shall be governed by the
provisions thereof and shall constitute a grant to the Assignee of a
security interest in the Collateral.
13. GOVERNING LAW. This instrument is made pursuant to and shall be
construed and governed by the laws of the State of Minnesota without
regard to the principles of conflicts of law.
14. SUCCESSORS AND ASSIGNS. This Assignment shall be binding upon the
Assignor, its successors and assigns and shall inure to the Assignee,
its successors and assigns.
15. INCONSISTENT TERMS. To the extent of any inconsistency between the
terms hereof and the terms of the Mortgage and Security Agreement and
Fixture Financing Statement entered into in connection herewith, the
terms of the Mortgage and Security Agreement and Fixture Financing
Statement shall control, including, without limitation, Section 8.13
thereto.
IN WITNESS WHEREOF, the Assignor has executed this document as of the
date first above written.
NAVARRE CORPORATION, a Minnesota
corporation
By ______________________________
Its _____________________________
STATE OF MINNESOTA )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this _____ day of
___________________________, 2003, by ____________________________________, the
_____________________________ of Navarre Corporation, a Minnesota corporation,
on behalf of the corporation.
____________________________________________
NOTARY PUBLIC
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GENERAL CONTRACTOR'S CONSENT TO ASSIGNMENT
Xxxxxxx Construction Co., the contractor under the Construction
Contract, hereby consents to the above-referenced assignment and agrees that if
any event of default, as defined in said Construction Loan Agreement, shall
occur, then, upon written notice from The Business Bank, its successors and
assigns (Assignee) to such effect, it shall, at Assignee's request, continue
performance on Assignee's behalf under the above-referenced Construction
Contract in accordance with the terms thereof, provided we shall be reimbursed
for all past and future amounts due in accordance with the terms of the
Construction Contract for all work, labor and materials rendered pursuant to the
Construction Contract. We agree that Assignee may utilize the Construction
Contract for the above-stated purpose. If Assignee exercised its assignment
rights and complies with the conditions of this Consent, we will continue to
perform any and all obligations that we had previously agreed to perform on the
Owner's behalf with reference to the completion of the improvements and we will
not perform any work pursuant to any change order which will result in a change
of the Construction Contract price in excess of one (l%) percent of such price
(computed prior to giving effect to such change order) unless we shall have
received Assignee's specific approval of such change order. If Assignee does not
object within five (5) business days to our notice of a change order then
Assignee will be deemed to have given its specific approval to that change
order. We further agree that the above assignment shall not impose any
obligation or any requirement on the part of Assignee to perform the Owner's
obligation under the Construction Contract or make any Construction Contract
payments thereunder, unless and until Assignee shall request us to continue
performance on its behalf under the Construction Contract in accordance with
this letter.
Dated:___________________
XXXXXXX CONSTRUCTION CO.
By ____________________________
Its ___________________________
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ARCHITECT'S CONSENT TO ASSIGNMENT
KKE ARCHITECTS, INC., the Architect under the Architects Contract
identified in the foregoing Assignment of Contract Documents and Intangibles
(Architect) hereby consents to the above-referenced assignment and agrees that
if any event of default shall occur under said Construction Loan Agreement, then
without any additional fee or consideration being payable to Architect, The
Business Bank, its successors and assigns (Assignee) may utilize the Plans and
Specifications for the completion of the improvements. We further agree that
should an event of default occur, we will continue to perform, on Assignee's
behalf, any and all obligations we had previously agreed to perform as Architect
on the Owner's behalf with reference to the completion of the improvements and
any and all liens, claims, rights, remedies and recourses that we may have or
may otherwise be entitled to assert against all or any portion of the land and
improvements, as referenced above, shall be and they are hereby made expressly
subordinate, junior and inferior to the liens, claims, rights, remedies, and
recourses, as created by the security documents given in connection with the
Construction Loan Agreement. We further agree that Assignee may utilize the
Architects Contract for the above-stated purposes and we will continue to
perform any and all obligations that we had previously agreed to perform for the
Owner under the Architects Contract provided that we continue to be reimbursed
in accordance with the terms of said Architects Contract for all such services
rendered. We further agree that this assignment shall not impose any obligation
or any requirements upon the Assignee to perform Owner's obligations under the
Architects Contract or make any contract payments thereunder, unless and until
Assignee shall request us to continue performance on its behalf under the
Architects Contract.
Dated: _______________, 2003 KKE ARCHITECTS, INC.
By ____________________________
Its ___________________________
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PROJECT MANAGER'S CONSENT TO ASSIGNMENT
GLASGOW ADVISORY SERVICES INCORPORATED, the consultant under the
above-defined Agreement, hereby consents to the above-referenced assignment and
agrees that if any event of default, as defined in said Construction Loan
Agreement, shall occur, then, upon written notice from The Business Bank, its
successors and assigns (Assignee) to such effect, then we shall, at their
request, continue performance on their behalf under the above-referenced
Agreement in accordance with the terms thereof provided we shall be reimbursed
in accordance with the terms of the Agreement for all work, labor and materials
rendered pursuant to the Agreement. We agree that Assignee may utilize the
Agreement for the above-stated purpose. We will continue to perform any and all
obligations that we had previously agreed to perform on the owner's behalf with
reference to the completion of the improvements. We further agree that the above
assignment shall not impose any obligation or any requirement on the part of
Assignee to perform the owner's obligation under the Agreement or make any
Agreement payments thereunder, unless and until Assignee shall request us to
continue performance on its behalf under the Agreement in accordance with this
letter.
Dated:___________________
GLASGOW ADVISORY SERVICES
INCORPORATED
By ____________________________
Its ___________________________
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