Exhibit 10 (www)
COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT
IN REGARD TO
CONTRACTS, LICENSES, PERMITS, AGREEMENTS,
WARRANTIES AND APPROVALS
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THIS ASSIGNMENT, made this 30th day of July, 1997 by ▇▇▇▇▇▇ PLACE
ASSOCIATES LLC, a Delaware limited liability company, with a principal address
c/o Overseas Partners Capital Corp., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Assignor") to METROPOLITAN
LIFE INSURANCE COMPANY, as agent for the Holders (as defined in the Notes,
hereinafter defined) of the Notes, (hereinafter referred to as "Assignee"), a
New York corporation with its principal office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
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THAT Assignor, for good and valuable consideration, receipt and sufficiency
of which is hereby acknowledged, does hereby grant, transfer and assign to
Assignee for and in respect of the property described in Exhibit "A" attached
hereto and made a part hereof and the improvements thereon (the "Property") a
security interest in and also hereby assigns, transfers and sets over to
Assignee (to the extent assignable as to governmental permits) all of Assignor's
right title and interest in and to all contracts, licenses, permits, agreements,
warranties and approvals now owned or hereafter acquired by Assignor (such
contracts, licenses, permits, agreements, warranties and approvals, as are now
so owned or hereafter acquired are referred to herein as the "Contracts"). For
the purposes of this instrument, the term "Contracts" shall include, without
limitation, all of Assignor's right, title and interest in and to the Management
Agreements (as defined in the Mortgage referred to in paragraph (b) below).
The following sets forth the obligations and instruments secured by this
Collateral Assignment and Security Agreement:
(a) Payment of Assignor's and Urban Investment and Development Co.'s
("UIDC") debt (the "Loan") to Assignee in the original principal sum of ONE
HUNDRED NINETY-FIVE MILLION and 00/100 Dollars ($195,000,000.00) (the "Loan
Amount") evidenced by a certain Class A Promissory Note in the original
principal amount of $95,000,000.00, made by Assignor and UIDC to
Metropolitan Life Insurance Company, of even date herewith ("Class A Note")
and a certain Class B Promissory Note in the original principal amount of
$95,000,000.00, made by Assignor and UIDC to Metropolitan Life Insurance
Company, of even date herewith ("Class B Note") (the Class A Note and the
Class B Note being hereinafter referred to collectively as the "Notes");
(b) Payment and performance of all liabilities and obligations of Assignor
and UIDC to Assignee under that certain Leasehold Mortgage, Security
Agreement
and Fixture Financing Statement (the "Mortgage") which, among other
things, secures the Notes and is of even date herewith;
(c) Payment and performance of all liabilities and obligations of Assignor
and/or UIDC to Assignee under the terms of any other document or
instrument now or hereafter executed or delivered in connection with
the Loan; and
(d) Performance of all conditions and obligations contained in this
Assignment.
The aforesaid obligations, agreements and instruments shall be collectively
referred to herein as the "Secured Obligations and Instruments".
This Assignment is made and accepted upon the following terms and conditions:
1. Assignor hereby agrees (i) to perform in a timely manner in all
material respects all its obligations, covenants, conditions and agreements
under the Contracts and (ii) to use all reasonable efforts to enforce
performance by each other party thereto of each and every obligation, covenant,
condition and agreement to be performed by such other party under the Contracts.
Assignor shall not suffer or permit any default on its part to exist under the
Secured Obligations and Instruments to continue beyond applicable cure periods,
if any (such a default which is not cured within applicable cure periods, if
any, being referred to herein as a "Default"). So long as no Default shall
exist, Assignor shall have all the rights as the holder thereof in and with
respect to the Contracts as may be lawfully permitted.
2. Immediately upon the occurrence of any Default, the right described in
the foregoing paragraph 1 hereof shall cease and terminate (subject to the
provisions of Section 3.13 of the Mortgage and the Estoppel and Subordination
Agreements of even date herewith ("E.S.A.'s") with respect to the Management
Agreements), and in such event Assignee is hereby expressly and irrevocably
authorized, but not required, to exercise every right, option, power or
authority inuring to Assignor under any one or more of the Contracts as fully as
Assignor could itself.
Further, and without limitation of the foregoing remedies, upon the
occurrence of any Default, Assignee shall have the rights and remedies of a
secured party under the Uniform Commercial Code, as enacted in the Commonwealth
of Massachusetts, for each and every Contract, in addition to the rights and
remedies otherwise provided for by law or in equity or in any other agreement
between the parties or under any guaranty of Assignor's obligations, including
without limitation, all rights and remedies. Assignee shall give Assignor 10
days' prior written notice of the time and place of any public sale of any such
Contract or the time after which any private sale or any other intended
disposition is to be made. After deducting all expenses incurred in connection
with the enforcement of its rights hereunder, Assignee shall cause the proceeds
of the Contracts to be applied to the payment of principal or interest on
Assignor's indebtedness to Assignee in such order as Assignee may determine, and
Assignor shall remain liable for any deficiency.
3. Assignor hereby irrevocably directs the grantor or licensor of or the
contracting party to any such Contract to the extent not prohibited by such
Contract and under any recognition or other agreement, if any, executed by such
grantor, licensor or contracting party, upon demand of Assignee and after notice
from Assignee of Assignor's Default (but subject to Section 3.13 of the Mortgage
and the E.S.A.'s), to recognize and accept Assignee as the holder of such
Contract for any and all purposes as fully as it would recognize and accept
Assignor and the performance of Assignor thereunder, without any obligation on
the part of any such grantor, licensor or contracting party to determine whether
a Default has in fact occurred.
4. Assignor hereby agrees to indemnify and hold Assignee harmless against
and from all liability, loss, damage (excluding consequential damages) and
reasonable expenses, including reasonable attorneys' fees, which it may or shall
incur by reason of this Assignment, or by reason of any action taken in good
faith by Assignee in the exercise of its rights hereunder, and against and from
any and all claims and demands whatsoever which may be asserted against Assignee
by reason of any alleged obligation or undertaking on its part to perform or
discharge any of the terms, covenants and conditions contained in the Contracts.
Should Assignee incur any such liability, loss, damage or expense (other than
that which results from Assignee's or its agent's gross negligence or its
willful disregard of its obligations hereunder), the amount thereof, together
with interest thereon at the Default Rate of interest under the Notes, shall be
payable by Assignor to Assignee immediately upon demand, or, at the option of
Assignee, Assignee may reimburse itself therefor out of any receipts, rents,
income or profits of the Property collected by Assignee before the application
of such receipts, rents, income or profits to any other obligation of Assignor
hereunder or under the Secured Obligations and Instruments.
5. Nothing contained herein shall operate or be construed to obligate
Assignee to perform any of the terms, covenants or conditions contained in the
Contracts or otherwise to impose any obligation upon Assignee with respect to
the Contracts prior to written notice by Assignee to Assignor of Assignee's
election to assume Assignor's obligations under one or more of the Contracts.
Prior to said election this Assignment shall not operate to place upon Assignee
any responsibility for the operation, control, care, management or repair of the
Property or for the payment, performance or observance of any obligation,
requirement or condition under any such Contract pursuant to the terms hereof or
under any agreement in respect to any such Contract, and the execution of this
Assignment by Assignor shall constitute conclusive evidence that all
responsibility for the operation, control, care, management and repair of the
Property as well as the payment, performance or observance of any obligation,
requirement or condition under the Contracts is and shall be that of Assignor,
prior to such election.
6. Assignor represents and warrants to Assignee that (i) it lawfully
holds the rights and interests of Assignor in the Contracts, (ii) it has the
right to assign to Assignee its interest under each said Contract, as of the
date hereof, (iii) it has received all necessary consents and approvals to such
assignment and has not sold, assigned, transferred, mortgaged or pledged any
such right or interest under the Contracts to any person other than Assignee
that will not
be released on the funding of the Loan, and (iv) it is not in default of any of
its obligations under the Contract which exist as of the date of execution
hereof and is not aware of any defaults of any other parties of any of their
obligations under such Contracts. Assignor shall not, without the prior written
consent of Assignee, sell, assign, transfer, mortgage or pledge any Contract or
any such right or interest under any Contract.
7. Assignor agrees to execute and deliver to Assignee, at any time or
times during which this Assignment shall be in effect, such further instruments
as Assignee reasonably may deem necessary to make effective this Assignment, the
security interest created hereby and the several covenants of Assignor herein
contained. To evidence such security interest, at the request of Assignee,
Assignor shall, in a form satisfactory to Assignee, join with Assignee in
executing one or more financing statements, and any continuation thereof,
pursuant to the provisions of the Uniform Commercial Code as enacted in
Massachusetts, and shall pay the cost for filing thereof. Further, promptly
upon any Contract coming into existence after the date hereof, Assignor agrees
to deliver a copy thereof to Assignee, together with any consent or recognition
agreement related thereto which Assignee may require.
8. Failure of Assignee to avail itself of any of the terms, covenants and
conditions of this Assignment for any period of time or at any time or times,
shall not be construed or deemed to be a waiver of any of its rights hereunder.
The rights and remedies of Assignee under this instrument are cumulative and are
not in lieu of but are in addition to any other rights and remedies which
Assignee shall have under or by virtue of the Secured Obligations and
Instruments. The rights and remedies of Assignee hereunder may be exercised
from time to time and as often as such exercise is deemed expedient by Assignee.
9. Assignee shall have the right to assign to any subsequent holder of any
of the Secured Obligations and Instruments or to any person acquiring title to
the Property, the Contracts and all the right, title, interest, power and
authority of Assignor in, under and by virtue of the Contracts hereby or
hereafter assigned, subject, however, to the provisions of this Assignment, the
Contracts and any agreement collateral thereto.
10. Upon full payment of the Secured Obligations, this Assignment shall
terminate and, in that event, upon the request of Assignor, Assignee covenants
to execute and deliver to Assignor instruments effective to evidence the
termination of this Assignment and the reassignment to Assignor of the Contracts
and the rights, title, interest, power and authority assigned herein; provided,
however, that, as to Assignor, any affidavit, certificate or other written
statement of any officer of Assignee, stating that any part of said indebtedness
remains unpaid, shall be and constitute conclusive evidence of the then
validity, effectiveness and continuing force of this Assignment and any person,
firm or corporation receiving any such affidavit, certificate or statement may,
and is hereby authorized to, rely thereon.
11. Assignor agrees to provide Assignee with copies of any and all notices
(i) received by Assignor which allege, either directly or indirectly, that
Assignor is delinquent or deficient in the performance of the terms of any
obligation of Assignor under any Contract, promptly after receipt thereof
and (ii) sent by Assignor which allege, either directly or
indirectly, that any other party to a Contract is in breach of any of its
obligations thereunder, promptly after transmittal thereof. Upon receipt of any
notice described in (i) above, whether or not a Default shall have occurred,
upon 10 business days advance written notice (unless an emergency situation
requires more immediate action, in which case no prior notice need be given),
Assignee may elect, but shall not be obligated to, cure any such alleged
delinquency or deficiency by Assignor, and to treat all sums expended in
connection therewith as amounts advanced under the Notes and secured by the
Mortgage and the Assignment of Lessor's Interest in Leases executed and
delivered by Assignor in connection therewith. Assignor further covenants that,
without the prior written consent of Assignee, Assignor will not permit or agree
to any cancellation, abridgment, amendment, extension, renewal or modification
of any of the terms, covenants and conditions of any Contract, provided that
with respect to modifications or amendments, Assignee's consent shall not be
reasonably withheld.
12. No change, amendment, modification, cancellation or discharge hereof,
or of any part hereof, shall be valid unless Assignee shall have consented
thereto in writing.
13. In case of any conflict between the terms of this Assignment and the
terms of the Mortgage, the terms of the Mortgage shall prevail and be
controlling.
14. Assignor agrees that, notwithstanding any action by Assignee to
enforce its rights under any of the Secured Obligations and Instruments, this
Assignment shall survive as security for any of the other Secured Obligations
and Instruments.
15. Wherever by the terms of this Assignment notice shall or may properly
be given to the parties hereto, the same shall always be sufficient if in
writing and given in the manner set forth for the provision of notice under the
Mortgage.
16. The liability of Assignor hereunder shall be subject to the same
limitations (and exceptions to such limitations) as apply to Mortgagor under
Section 1.17 of the Mortgage.
17. ASSIGNOR HEREBY ACKNOWLEDGES THAT THE TRANSACTION EVIDENCED HEREBY IS
A COMMERCIAL TRANSACTION. ASSIGNOR HEREBY IRREVOCABLY AND UNCONDITIONALLY (A)
SUBMITS TO PERSONAL JURISDICTION IN THE COMMONWEALTH OF MASSACHUSETTS OVER ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND (B)
WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAWS OF ANY STATE (I) TO OBJECT TO
JURISDICTION WITHIN THE COMMONWEALTH OF MASSACHUSETTS OR VENUE IN ANY PARTICULAR
FORUM WITHIN THE COMMONWEALTH OF MASSACHUSETTS (INCLUDING FEDERAL COURTS HAVING
JURISDICTION IN THE COMMONWEALTH), AND (II) TO THE RIGHT, IF ANY, TO CLAIM OR
RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES
OTHER THAN ACTUAL DAMAGES. ASSIGNOR AGREES THAT, IN ADDITION TO ANY METHODS OF
SERVICE OF PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN
ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE MADE BY CERTIFIED OR REGISTERED MAIL,
RETURN RECEIPT REQUESTED, DIRECTED TO
ASSIGNOR AT THE ADDRESS SET FORTH ABOVE (OR SUCH DIFFERENT ADDRESS PROVIDED IN
THE MANNER SET FORTH FOR THE GIVING OF NOTICES UNDER THIS INSTRUMENT), AND
SERVICE SO MADE SHALL BE COMPLETE UPON RECEIPT OR REFUSAL OF RECEIPT OF THE
NOTICE. ASSIGNOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL
RIGHTS TO A TRIAL BY JURY IN ANY JURISDICTION AND IN ANY COURT WITH RESPECT TO,
IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT, THE OBLIGATIONS, THE OTHER
LOAN DOCUMENTS, OR ANY CLAIM OR DISPUTE HOWSOEVER ARISING, BETWEEN ASSIGNOR AND
ASSIGNEE. THIS WAIVER OF JURY TRIAL SHALL BE EFFECTIVE FOR EACH AND EVERY
DOCUMENT EXECUTED BY ASSIGNOR OR ASSIGNEE, AND DELIVERED TO ASSIGNEE OR
ASSIGNOR, AS THE CASE MAY BE, WHETHER OR NOT SUCH DOCUMENT SHALL CONTAIN A
WAIVER OF JURY TRIAL. ASSIGNOR FURTHER CONFIRMS THAT THE FOREGOING WAIVERS ARE
INFORMED AND FREELY MADE.
18. THIS ASSIGNMENT shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts, to the maximum extent permissible
according to law.
19. THIS ASSIGNMENT, together with the covenants and warranties herein
contained, shall inure to the benefit of Assignee and any subsequent Assignee of
any of the Notes and/or the Mortgage and shall be binding upon Assignor, its
heirs, executors, administrators, successors and assigns and any subsequent
owner of the Property.
20. The provisions of Section 1.17 of the Mortgage are incorporated herein
by reference as if set forth in full and shall be fully applicable to this
Agreement.
21. This Assignment may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original, but all of
which together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed by its
duly authorized representatives as of the day and year first written above.
WITNESS/ATTEST: ASSIGNOR:
▇▇▇▇▇▇ PLACE ASSOCIATES, LLC
a Delaware limited liability company
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: Overseas Partners Capital Corp.,
-------------------- Its managing member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Its President
Hereunto duly authorized
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: JMB Realty Corporation
------------------------ an Illinois corporation, its member
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------
Its Vice President
Hereunto duly authorized
ACKNOWLEDGEMENT PAGE
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STATE OF Georgia )
) SS:
COUNTY OF Dekalb ) July 30, 1997
Then personally appeared before me, the above name ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
President of Overseas Partners Capital Corp., a Delaware corporation, managing
member of ▇▇▇▇▇▇ Place Associates, LLC, a Delaware limited liability company,
who executed the foregoing instrument and acknowledged that he executed the
foregoing instrument as the free act and deed of said corporation in its
capacity as the Managing Member of said limited liability company pursuant to
proper authorization of the members of such limited liability company, and as
the free act and deed said limited liability company.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Notary Public
My Commission Expires: ▇▇/▇/▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) SS:
COUNTY OF New York ) July 30, 1997
Then personally appeared before me, the above named ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Vice President of JMB Realty Corporation, a Delaware corporation, a member of
▇▇▇▇▇▇ Place Associates, LLC, a Delaware limited liability company, who executed
the foregoing instrument and acknowledged that he executed the foregoing
instrument as the free act and deed of said corporation in its capacity as a
member of said limited liability company pursuant to proper authorization of the
members of such limited liability company, and as the free act and deed of said
limited liability company.
/s/ ▇▇▇▇ ▇. ▇▇▇
---------------
Notary Public
My Commission Expires: June 13, 1998
▇▇▇▇ ▇. ▇▇▇
Notary Public, State of Now York
No.▇▇-▇▇▇▇▇▇▇
Qualified in Nassau County Certificate filed
in New York County.
Commission Expires June 13, 1998