EXHIBIT 10(i)
COLLATERAL ASSIGNMENT
OF INTEREST RATE PROTECTION AGREEMENT
This Collateral Assignment of Interest Rate Protection Agreement (this
"Assignment"), made as of December 6, 2002, by ▇▇▇▇▇ POST OAK LIMITED
PARTNERSHIP, a Delaware limited partnership ("Assignor"), in favor of COLUMN
FINANCIAL, INC., a Delaware corporation ("Assignee").
WHEREAS, Assignor and Assignee have entered into that certain Loan
Agreement of even date herewith (as amended, modified or supplemented and in
effect from time to time, the "Loan Agreement"); and
WHEREAS, the parties wish to set forth certain understandings with respect
to the Collateral (as defined below);
NOW, THEREFORE, the parties agree as follows:
1. For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Assignor has assigned, as collateral, to
Assignee, all of its right, title and interest in, to and under the
[Confirmation], dated as of December 6, 2002, attached as Exhibit A hereto
(collectively, the "Agreement"), by and between Assignor and CDC Financial
Products Inc., as counterparty ("Counterparty"), and all of Assignor's right,
title and interest in, to and under all other documents executed and/or
delivered in connection with and/or secured by the Agreement, including, without
limitation, all of Assignor's right, title and interest in any collateral,
demands, causes of action, bank accounts, other accounts, investment property,
general intangibles and supporting obligations, and any other collateral or
documents arising out of and/or executed and/or delivered with respect to the
Agreement, all rights and benefits of Assignor related to the Agreement, and
such claims and choses in action related to the Agreement and such documents,
and all of Assignor's rights, title and interests therein and thereto, and the
Assignor hereby grants to Assignee a security interest in and to the Agreement
and the foregoing and all proceeds (as defined in Section 9-306 of the Uniform
Commercial Code adopted in the State of New York) thereof (the "Collateral"), to
have and to hold the same, unto Assignee, its successors and assigns.
2. Each party to the Agreement, by its execution of this Assignment, hereby
consents to the assignment of the Collateral and the other terms hereof
(including, without limitation, the second sentence of Paragraph 3 hereof), and
Assignor and Counterparty agree that Counterparty will make any payments to
become payable under or pursuant to the Agreement directly to the Assignee until
such time as this Assignment is terminated or otherwise canceled, at which time
the Counterparty will be instructed by Assignee to make payments to or on behalf
of Assignor. All such payments by Counterparty to Assignee shall discharge any
obligation Counterparty would otherwise have to Assignor with respect thereto.
3. Assignor hereby covenants and agrees that Assignor shall not, without
first obtaining Assignee's or its successor's or assign's written consent,
convey, assign, sell, mortgage, encumber, pledge, hypothecate, grant a security
interest in, grant an option or options with respect to, or otherwise dispose of
(directly or indirectly, voluntarily or involuntarily, by
operations of law or otherwise, and whether or not for consideration) the
Agreement except in connection with transfers permitted without Assignee's
consent or approved by Assignee pursuant to the Loan Agreement. Except with
respect to a termination resulting from an Event of Default under Section
5(a)(vii) of the Agreement, Assignor and Counterparty hereby covenant and agree
that until such time as this Assignment is terminated or otherwise canceled
pursuant to Paragraph 4 hereof, Assignor and Counterparty shall not, without
first obtaining Assignee's or its successor's or assign's written consent,
amend, modify, cancel or terminate the Agreement.
4. This Assignment shall terminate upon the payment in full of all
obligations under the Loan Agreement.
5. In consideration of the foregoing agreements by Counterparty, Assignor
and Assignee agree that (i) Counterparty shall be entitled to conclusively rely
(without any independent investigation) on any notice or instructions from
Assignee in respect of this Assignment, (ii) without limitation on the
immediately preceding clause, in the event of any inconsistency between any
notice or instructions from Assignee and any notice or instructions from
Assignor, Counterparty shall be entitled to conclusively rely (without any
independent investigation) on those from Assignee and (iii) Counterparty shall
be held harmless and shall be fully indemnified by Assignor from and against any
and all claims, other than those ultimately determined to be proximately caused
by the gross negligence or willful misconduct of Counterparty, and from and
against any damages, penalties, judgments, liabilities, losses or expenses
(including reasonable attorneys' fees and disbursements) incurred by
Counterparty as a result of the assertion of any claim, by any person or entity,
arising out of, or otherwise related to, any actions taken or omitted to be
taken by Counterparty in reliance upon any such instructions or notice provided
by Assignee.
6. The Counterparty shall be entitled to conclusively, without liability,
rely, without investigation, on any notice or instructions (including, without
limitation, with respect to the Payments) received by the Counterparty from
Assignee, or Assignee's successors and/or assigns. In consideration of the
foregoing agreements by Counterparty without limitation on the immediately
preceding clause, in the event of any inconsistency between any notice or
instructions from Assignee and any notice or instructions from Assignor,
Counterparty shall be entitled to conclusively rely (without any independent
investigation) on those from Assignee and Counterparty shall be held harmless
and shall be fully indemnified by Assignor from and against any and all claims,
other than those ultimately determined to be proximately caused by the gross
negligence or willful misconduct of Counterparty, and from and against any
damages, penalties, judgments, liabilities, losses or expenses (including
reasonable attorneys' fees and disbursements) incurred by Counterparty as a
result of the assertion of any claim, by any person or entity, arising out of,
or otherwise related to, any actions taken or omitted to be taken by
Counterparty in reliance upon any such instructions or notice provided by
Assignee.
7. This Assignment shall be governed by and construed in accordance with
the laws of the State of New York, without reference to choice of law doctrine.
8. This Assignment shall be binding upon and shall inure to the benefit of
Assignor and Assignee and their respective successors and assigns.
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9. This Assignment may be amended or modified only by a written instrument
signed by the parties hereto.
10. This Assignment may be executed in any number of counterparts, each of
which shall be an original but all of which shall constitute one instrument.
[Signature page follows]
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IN WITNESS WHEREOF, Assignor and Assignee have caused this instrument to be
executed and delivered as of the date set forth above.
ASSIGNOR:
▇▇▇▇▇ POST OAK LIMITED PARTNERSHIP,
a Delaware limited partnership
By: ▇▇▇▇▇ POST OAK, INC., a Delaware
corporation, its general partner
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
ASSIGNEE:
COLUMN FINANCIAL, INC.
By: /S/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
ACKNOWLEDGED AND AGREED:
COUNTERPARTY
CDC FINANCIAL PRODUCTS INC.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
By:
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Name:
Title:
EXHIBIT A
Confirmation