Exhibit 10.22
COLLATERAL ASSIGNMENT OF OPTION TO PURCHASE AS SECURITY
THE EAGLEBROOK GROUP, INC., a Delaware corporation
(Assignor)
TO
GENERAL ELECTRIC CAPITAL CORPORATION,
THE CIT GROUP/EQUIPMENT FINANCING, INC., HSBC BUSINESS CREDIT (USA), INC.,
PEOPLE'S CAPITAL AND LEASING CORP., SAFECO CREDIT COMPANY, INC. AND SIEMENS
FINANCIAL SERVICES, INC.
(collectively, the Assignee)
Dated: as of December 19, 2002
Location of Property:
▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RECORD AND RETURN TO:
▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
THIS COLLATERAL ASSIGNMENT OF OPTION TO PURCHASE AS SECURITY (this
"Assignment") is made as of the 19th day of December, 2002 by The Eaglebrook
Group, Inc., a Delaware corporation, with its chief executive office located at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (and as successor to each of
Eaglebrook Products, Inc. and Eaglebrook Plastics, Inc., the "Assignor") in
favor of General Electric Capital Corporation, a Delaware corporation, whose
address is ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("GE Capital"), the
CIT Group/Equipment Financing, Inc., HSBC Business Credit (USA), Inc. as
successor to HSBC Business Loans, Inc., People's Capital and Leasing Corp.,
Safeco Credit Company, Inc. and Siemens Financial Services, Inc., formerly known
as Siemens Credit Corporation (collectively with GE Capital, the "Assignee").
W I T N E S S E T H:
WHEREAS, Assignor and Assignee previously entered into that
certain Forbearance and Modification Agreement dated as of February 28, 2002, as
amended by First Amendment thereto dated as of May 30, 2002 and Second Amendment
thereto dated as of June __ 2002 (the "Forbearance") pursuant to which Assignee
agreed to forbear in the collection of certain regularly scheduled principal
payments due and owing from Assignor, as debtor, under certain loan and security
documents between Assignor and Assignee (collectively, the "Debt Documents");
WHEREAS, Assignor is presently in default under the
Forbearance due to the occurrence and continuation of certain Forbearance Events
of Default (as defined in the Agreement) and Assignee has the immediate and
present right to exercise all rights and remedies available to it at law, in
equity or as otherwise provided under the Debt Documents;
WHEREAS, ▇▇▇▇▇▇▇▇ has requested that Assignee enter into the
Amended and Restated Waiver and Modification Agreement of even date herewith
(the "Restated Agreement") and Assignee requires as a condition to the Restated
Agreement, that Assignor execute and deliver this Assignment; and
WHEREAS, a material condition to the effectiveness of the
Restated Agreement is that Assignor execute and deliver this Assignment, in
recordable form, granting a first lien and security interest in the Option (as
defined below) in favor of Assignee as security for repayment of the Obligations
(as defined in the Restated Agreement), and Assignee will enter into the
Restated Agreement in reliance upon this Assignment as aforesaid.
NOW, THEREFORE, in consideration of the foregoing recitals,
Assignee hereby makes this Assignment on the following terms, covenants and
conditions:
1. Recitals Incorporated. Each and every recital to this
Assignment is a material part of this Assignment and is hereby incorporated into
and deemed to be a material part of this Assignment.
2. Collateral Assignment for Security. Assignor does
hereby collaterally assign to Assignee all of Assignor's right, title and
interest in and to the Option, it being intended by Assignor that this
Assignment constitutes an assignment for security purposes. This Assignment
shall secure: (i) the repayment of all sums owed by Assignor or any of its
affiliated parties that are obligated to Assignee under the Debt Documents
(albeit either as a co-debtor or as a guarantor (each an "Obligor")); and (ii)
the performance of Assignor's and each other Obligor's obligations under the
Debt Documents. For purposes of this Assignment, the "Option" shall mean that
certain Option to Purchase dated as of January 28, 1999 by and between American
National Bank and Trust Company of Chicago, not individually but as Trustee
under Trust Agreement dated December 1, 1986 and known as Trust No. 101034-06,
as optionor thereunder (the "Optionor"), and Assignor, as optionee thereunder.
The Option was granted with respect to that certain real property commonly known
as ▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and 1105-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, which property is more particularly described in Exhibit A
attached hereto and made a part hereof, together with the buildings, structures,
fixtures, additions, enlargements, extensions, modifications, repairs,
replacements and improvements now or hereafter located thereon (the "Property").
3. Consideration for Assignment. This Assignment is made
in consideration of Assignee's undertakings in the Restated Agreement. Assignor
hereby acknowledges and agrees that Assignee would not have entered into the
Restated Agreement without this Assignment.
4. Representations, Warranties and Covenants of
Assignor. Assignor represents and warrants that: (i) Assignor is the sole owner
of the entire optionee's interest in the Option; (ii) Assignor has full power
and authority to execute and deliver this Assignment and the execution and
delivery of this Assignment has been duly authorized and does not conflict with
or constitute a default under any law, judicial order or other agreement
affecting Assignor or the Property; (iii) the Option is presently in full force
and effect, enforceable in accordance with its terms; and (iv) Assignor has not
granted any lien, security interest or encumbrance of any kind or nature on the
Option.
5. Covenants as to Lease. Assignor hereby covenants and
agrees that, with respect to that certain lease dated as of January 28, 1999 by
and between Optionor, as landlord thereunder, and Assignor, as tenant
thereunder, with respect to the Property (the "Lease"), Assignor shall (a)
observe and perform each and every provision thereof on Assignor's part to be
fulfilled or performed under the Lease and not do or permit to be done anything
to impair the value or validity of the Lease or the Option, (b) promptly send to
Assignee copies of any and all notices of default which Assignor shall send or
receive under or in connection with the Lease, and any and all notices of any
type whatsoever which Assignor shall send or receive in connection with the
Option, (c) perform all of the terms, covenants and conditions contained in such
Lease upon Assignor's part to be performed, (d) execute and deliver, at the
request of Assignee, all such further assurances, confirmations and assignments
in connection with the Property as Assignee shall, from time to time, reasonably
require, and (e) upon request, furnish Assignee with additional copies of the
executed Lease and the Option.
6. Event of Default. Assignor shall be in default under
this Assignment upon the occurrence of any one or more of the following: (i) an
Event of Default (as defined in the
Restated Agreement); or (ii) Assignor's default under any of the terms or
provisions of the Lease which is not waived or cured.
7. Remedies of Assignee; Exercise of Option Upon
Default. Concurrent with the execution of this Assignment, Assignor shall
execute the letter attached hereto as Exhibit B (the "Exercise Letter") pursuant
to which Assignor will provide notice to the Optionor of its exercise of the
Option in accordance with its terms. Notwithstanding the foregoing, Assignee
covenants and agrees not to deliver the Exercise Letter to Optionor unless and
until the earlier to occur of (i) a default under this Assignment pursuant to
Section 6 hereof; or (ii) Assignor fails to exercise the Option on or before the
Exercise Deadline (as defined in the Restated Agreement) (the "Trigger Event").
Upon the occurrence and continuation of the Trigger Event, and upon GE Capital's
(or its nominee) issuance of a commitment letter to finance Assignor's
acquisition of the Property (the "Commitment"), the Exercise Letter shall be
tendered to the Optionor and so long as the Commitment has not been terminated
or rescinded Assignor shall fully perform all of its obligations under the Real
Estate Sales Contract previously agreed upon between Assignor and Optionor. The
Commitment shall provide that the aggregate amount of monthly debt service
(principal and interest) shall not exceed Forty-Two Thousand Dollars
($42,000.00); provided, further, that such other terms and conditions of the
Commitment shall be determined in the reasonable discretion of GE Capital or its
nominee. Notwithstanding the foregoing, Assignor acknowledges and agrees that GE
Capital shall be under no obligation to provide such purchase money financing
for the Property upon the Trigger Event or otherwise.
8. No Liability of Assignee. Assignee shall not be
liable for any loss sustained by Assignor resulting from ▇▇▇▇▇▇▇▇'s exercise of,
or failure to exercise, the Option. Assignee shall not be obligated to perform
or discharge any obligation, duty or liability under the Lease or the Option or
under or by reason of this Assignment, and Assignor shall, and hereby agrees to,
indemnify and defend Assignee for, and hold Assignee harmless from and against,
any and all liability, loss or damage which may or might be incurred under or in
connection with the Lease or the Option, or under or by reason of this
Assignment, and from any and all third party claims and demands whatsoever,
including the defense of any such claims or demands which may be asserted
against Assignee by reason of any alleged obligations and undertakings on its
part to perform or discharge any of the terms, covenants or agreements contained
in the Lease or the Option other than third party claims arising out of the
gross negligence or willful misconduct of Assignee. Should Assignee incur any
such liability, the amount thereof, including costs, expenses and reasonable
attorneys' fees, shall be secured hereby and by the Debt Documents and Assignor
shall reimburse Assignee therefor immediately upon demand and upon the failure
of Assignor so to do Assignee may, at its option, declare all sums secured
hereby and under the Debt Documents immediately due and payable. This Assignment
shall not operate to place any obligation or liability for the control, care,
management or repair of the Property upon Assignee, nor for the carrying out of
any of the terms and conditions of the Lease or the Option; nor shall it operate
to make Assignee responsible or liable for any waste committed on the Property
by Assignor, or any tenants, occupants or any other parties, or for any
dangerous or defective condition of the Property, including, without limitation,
the presence of any hazardous materials or substances, or for any negligence in
the management, upkeep, repair or control of the Property resulting in loss or
injury or death to Assignor, or any tenant, licensee, employee, guest, invitee
or any other person.
9. Other Security. Assignee may take or release other
security for the payment of the Obligations, release any party primarily or
secondarily liable therefor and apply any other security held by it to the
reduction or satisfaction of the Obligations without prejudice to any of its
rights under this Assignment.
10. Other Remedies. Nothing contained in this Assignment
and no act done or omitted by Assignee pursuant to the power and rights granted
to Assignee hereunder shall be deemed to be a waiver by Assignee of its rights
and remedies under the Debt Documents and this Assignment is made and accepted
without prejudice to any of the rights and remedies possessed by Assignee under
the terms thereof.
11. Conflict of Terms. In case of any conflict between
the terms of this Assignment and the terms of the Debt Documents, the terms of
the Debt Documents shall prevail.
12. 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 Assignor or
Assignee, but only by an agreement in writing signed by the party against whom
the enforcement of any modification, amendment, waiver, extension, change,
discharge or termination is sought.
13. Non-Waiver. The failure of Assignee to insist upon
strict performance of any term hereof shall not be deemed to be a waiver of any
term of this Assignment. Assignor shall not be relieved of Assignor's
obligations hereunder by reason of (i) failure of Assignee to comply with any
request of Assignor or any other party to take any action to enforce any of the
provisions hereof or of the Debt Documents, (ii) the release, regardless of
consideration, of the whole or any part of the Obligations, or (iii) any
agreement or stipulation by Assignee extending the time of payment or otherwise
modifying or supplementing the terms of this Assignment or the Debt Documents.
Assignee may resort for the payment of the Obligations to any other security
held by Assignee in such order and manner as Assignee, in its discretion, may
elect. Assignee may take any action to recover the Obligations, or any portion
thereof, or to enforce any covenant hereof without prejudice to the right of
Assignee thereafter to enforce its rights under this Assignment. The rights of
Assignee under this Assignment shall be separate, distinct and cumulative and
none shall be given effect to the exclusion of the others. No act of Assignee
shall be construed as an election to proceed under any one provision herein to
the exclusion of any other provision.
14. 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.
15. Counterparts. This Assignment may be executed in any
number of counterparts, each of which when take together shall constitute a
single agreement.
16. Notice. Notice to the parties shall be provided at
the addresses and in the manner set forth in the Debt Documents.
17. Governing Law. This Assignment shall be governed and
construed in accordance with the laws of the State of Illinois.
18. Termination of Assignment. Upon payment in full of
the Obligations and the satisfaction or discharge of the Debt Documents, this
Assignment shall become and be void and of no effect.
19. Successors and Assigns. This Assignment, together
with the covenants and warranties herein contained, shall inure to the benefit
of Assignee and any subsequent holder of or successor to the Debt Documents and
shall be binding upon Assignor, its successors and assigns and any subsequent
holder of the Obligations.
20. Recordable Document. Assignor hereby acknowledges and
agrees that Assignee shall record this Assignment against the Property.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, Assignor has executed this Assignment
as of the day and year first above written.
THE EAGLEBROOK GROUP, INC.,
A Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: President and Secretary
---------------------------------
STATE OF _____________________ )
) SS
COUNTY OF ____________________ )
On the _____ day of December, 2002, before me personally came
_______________ and _______________, to me known, who, being by me duly sworn,
did depose and say that they are the __________ and __________, respectively, of
THE EAGLEBROOK GROUP, INC., a Delaware corporation, described in and which
executed the foregoing instrument as Assignor thereunder, and that they signed
their respective names thereto as such __________ and __________ and on behalf
of such corporation, pursuant to proper authority granted therefor, for the uses
and purposes therein set forth.
______________________________________
Notary Public
My Commission Expires: ______________
COLLATERAL ASSIGNMENT OF OPTION TO PURCHASE AS SECURITY
THE EAGLEBROOK GROUP, INC., a Delaware corporation
(Assignor)
TO
GENERAL ELECTRIC CAPITAL CORPORATION,
THE CIT GROUP/EQUIPMENT FINANCING, INC., HSBC BUSINESS CREDIT (USA), INC.,
PEOPLE'S CAPITAL AND LEASING CORP., SAFECO CREDIT COMPANY, INC. AND SIEMENS
FINANCIAL SERVICES, INC.
(collectively, the Assignee)
Dated: as of December 19, 2002
Location of Property:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RECORD AND RETURN TO:
▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
THIS COLLATERAL ASSIGNMENT OF OPTION TO PURCHASE AS SECURITY
(this "Assignment") is made as of the 19th day of December, 2002 by The
Eaglebrook Group, Inc., a Delaware corporation, with its chief executive office
located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (and as successor
to each of Eaglebrook Products, Inc. and Eaglebrook Plastics, Inc., the
"Assignor") in favor of General Electric Capital Corporation, a Delaware
corporation, whose address is ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("GE Capital"), the CIT Group/Equipment Financing, Inc., HSBC Business Credit
(USA), Inc. as successor to HSBC Business Loans, Inc., People's Capital and
Leasing Corp., Safeco Credit Company, Inc. and Siemens Financial Services, Inc.,
formerly known as Siemens Credit Corporation (collectively with GE Capital, the
"Assignee").
W I T N E S S E T H:
WHEREAS, Assignor and Assignee previously entered into that
certain Forbearance and Modification Agreement dated as of February 28, 2002, as
amended by First Amendment thereto dated as of May 30, 2002 and Second Amendment
thereto dated as of June __ 2002 (the "Forbearance") pursuant to which Assignee
agreed to forbear in the collection of certain regularly scheduled principal
payments due and owing from Assignor, as debtor, under certain loan and security
documents between Assignor and Assignee (collectively, the "Debt Documents");
WHEREAS, Assignor is presently in default under the
Forbearance due to the occurrence and continuation of certain Forbearance Events
of Default (as defined in the Forbearance) and Assignee has the immediate and
present right to exercise all rights and remedies available to it at law, in
equity or as otherwise provided under the Debt Documents;
WHEREAS, Assignor has requested that Assignee enter into the
Amended and Restated Waiver and Modification Agreement (the "Restated
Agreement") of even date herewith and Assignee requires as a condition to the
Restated Agreement, that Assignor execute and deliver this Assignment; and
WHEREAS, a material condition to the effectiveness of the
Restated Agreement is that Assignor execute and deliver this Assignment, in
recordable form, granting a first lien and security interest in the Option (as
defined below) in favor of Assignee as security for repayment of the Obligations
(as defined in the Restated Agreement), and Assignee will enter into the
Restated Agreement in reliance upon this Assignment as aforesaid.
NOW, THEREFORE, in consideration of the foregoing recitals,
Assignee hereby makes this Assignment on the following terms, covenants and
conditions:
1. Recitals Incorporated. Each and every recital to this
Assignment is a material part of this Assignment and is hereby incorporated into
and deemed to be a material part of this Assignment.
2. Collateral Assignment for Security. Assignor does
hereby collaterally assign to Assignee all of Assignor's right, title and
interest in and to the Option, it being intended by Assignor that this
Assignment constitutes an assignment for security purposes. This Assignment
shall secure: (i) the repayment of all sums owed by Assignor or any of its
affiliated parties that are obligated to Assignee under the Debt Documents
(albeit either as a co-debtor or as a guarantor (each an "Obligor")); and (ii)
the performance of Assignor's and each other Obligor's obligations under the
Debt Documents. For purposes of this Assignment, the "Option" shall mean that
certain Option to Purchase dated as of January 28, 1999 by and between RAM
Assets, L.L.C., as optionor thereunder (the "Optionor"), and Assignor, as
optionee thereunder. The Option was granted with respect to that certain real
property commonly known as ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
which property is more particularly described in Exhibit A attached hereto and
made a part hereof, together with the buildings, structures, fixtures,
additions, enlargements, extensions, modifications, repairs, replacements and
improvements now or hereafter located thereon (the "Property").
3. Consideration for Assignment. This Assignment is made
in consideration of Assignee's undertakings in the Restated Agreement. Assignor
hereby acknowledges and agrees that Assignee would not have entered into the
Restated Agreement without this Assignment.
4. Representations, Warranties and Covenants of
Assignor. Assignor represents and warrants that: (i) Assignor is the sole owner
of the entire optionee's interest in the Option; (ii) Assignor has full power
and authority to execute and deliver this Assignment and the execution and
delivery of this Assignment has been duly authorized and does not conflict with
or constitute a default under any law, judicial order or other agreement
affecting Assignor or the Property; (iii) the Option is presently in full force
and effect, enforceable in accordance with its terms; and (iv) Assignor has not
granted any lien, security interest or encumbrance of any kind or nature on the
Option.
5. Covenants as to Lease. Assignor hereby covenants and
agrees that, with respect to that certain lease dated as of January 28, 1999 by
and between Optionor, as landlord thereunder, and Assignor, as tenant
thereunder, with respect to the Property (the "Lease"), Assignor shall (a)
observe and perform each and every provision thereof on Assignor's part to be
fulfilled or performed under the Lease and not do or permit to be done anything
to impair the value or validity of the Lease or the Option, (b) promptly send to
Assignee copies of any and all notices of default which Assignor shall send or
receive under or in connection with the Lease, and any and all notices of any
type whatsoever which Assignor shall send or receive in connection with the
Option, (c) perform all of the terms, covenants and conditions contained in such
Lease upon Assignor's part to be performed, (d) execute and deliver, at the
request of Assignee, all such further assurances, confirmations and assignments
in connection with the Property as Assignee shall, from time to time, reasonably
require, and (e) upon request, furnish Assignee with additional copies of the
executed Lease and the Option.
6. Event of Default. Assignor shall be in default under
this Assignment upon the occurrence of any one or more of the following: (i) an
Event of Default (as defined in the Restated Agreement); or (ii) Assignor's
default under any of the terms or provisions of the Lease, which is not waived
or cured.
7. Remedies of Assignee; Exercise of Option Upon
Default. Concurrent with the execution of this Assignment, Assignor shall
execute the letter attached hereto as Exhibit B (the "Exercise Letter") pursuant
to which Assignor will provide notice to the Optionor of its exercise of the
Option in accordance with its terms. Notwithstanding the foregoing, Assignee
covenants and agrees not to deliver the Exercise Letter to Optionor unless and
until the earlier to occur of (i) a default under this Assignment pursuant to
Section 6 hereof; or (ii) Assignor fails to exercise the Option on or before the
Exercise Deadline (as defined in the Restated Agreement) (the "Trigger Event").
Upon the occurrence and continuation of the Trigger Event, and upon GE Capital's
(or its nominee) issuance of a commitment letter to finance Assignor's
acquisition of the Property (the "Commitment"), the Exercise Letter shall be
tendered to the Optionor and so long as the Commitment has not been terminated
or rescinded Assignor shall fully perform all of its obligations under the Real
Estate Sales Contract previously agreed upon between Assignor and Optionor. The
Commitment shall provide that the aggregate amount of monthly debt service
(principal and interest) shall not exceed Forty-Two Thousand Dollars
($42,000.00); provided, further, that such other terms and conditions of the
Commitment shall be determined in the reasonable discretion of GE Capital or its
nominee. Notwithstanding the foregoing, Assignor acknowledges and agrees that GE
Capital shall be under no obligation to provide such purchase money financing
for the Property upon the Trigger Event or otherwise.
8. No Liability of Assignee. Assignee shall not be
liable for any loss sustained by Assignor resulting from ▇▇▇▇▇▇▇▇'s exercise of,
or failure to exercise, the Option. Assignee shall not be obligated to perform
or discharge any obligation, duty or liability under the Lease or the Option or
under or by reason of this Assignment, and Assignor shall, and hereby agrees to,
indemnify and defend Assignee for, and hold Assignee harmless from and against,
any and all liability, loss or damage which may or might be incurred under or in
connection with the Lease or the Option, or under or by reason of this
Assignment, and from any and all third party claims and demands whatsoever,
including the defense of any such claims or demands which may be asserted
against Assignee by reason of any alleged obligations and undertakings on its
part to perform or discharge any of the terms, covenants or agreements contained
in the Lease or the Option other than third party claims arising out of the
gross negligence or willful misconduct of Assignee. Should Assignee incur any
such liability, the amount thereof, including costs, expenses and reasonable
attorneys' fees, shall be secured hereby and by the Debt Documents and Assignor
shall reimburse Assignee therefor immediately upon demand and upon the failure
of Assignor so to do Assignee may, at its option, declare all sums secured
hereby and under the Debt Documents immediately due and payable. This Assignment
shall not operate to place any obligation or liability for the control, care,
management or repair of the Property upon Assignee, nor for the carrying out of
any of the terms and conditions of the Lease or the Option; nor shall it operate
to make Assignee responsible or liable for any waste committed on the Property
by Assignor, or any tenants, occupants or any other parties, or for any
dangerous or defective condition of the Property, including, without limitation,
the presence of any hazardous materials or substances, or for any negligence in
the management, upkeep, repair or control of the Property resulting in loss or
injury or death to Assignor, or any tenant, licensee, employee, guest, invitee
or any other person.
9. Other Security. Assignee may take or release other
security for the payment of the Obligations, release any party primarily or
secondarily liable therefor and apply
any other security held by it to the reduction or satisfaction of the
Obligations without prejudice to any of its rights under this Assignment.
10. Other Remedies. Nothing contained in this Assignment
and no act done or omitted by Assignee pursuant to the power and rights granted
to Assignee hereunder shall be deemed to be a waiver by Assignee of its rights
and remedies under the Debt Documents and this Assignment is made and accepted
without prejudice to any of the rights and remedies possessed by Assignee under
the terms thereof.
11. Conflict of Terms. In case of any conflict between
the terms of this Assignment and the terms of the Debt Documents, the terms of
the Debt Documents shall prevail.
12. 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 Assignor or
Assignee, but only by an agreement in writing signed by the party against whom
the enforcement of any modification, amendment, waiver, extension, change,
discharge or termination is sought.
13. Non-Waiver. The failure of Assignee to insist upon
strict performance of any term hereof shall not be deemed to be a waiver of any
term of this Assignment. Assignor shall not be relieved of Assignor's
obligations hereunder by reason of (i) failure of Assignee to comply with any
request of Assignor or any other party to take any action to enforce any of the
provisions hereof or of the Debt Documents, (ii) the release, regardless of
consideration, of the whole or any part of the Obligations, or (iii) any
agreement or stipulation by Assignee extending the time of payment or otherwise
modifying or supplementing the terms of this Assignment or the Debt Documents.
Assignee may resort for the payment of the Obligations to any other security
held by Assignee in such order and manner as Assignee, in its discretion, may
elect. Assignee may take any action to recover the Obligations, or any portion
thereof, or to enforce any covenant hereof without prejudice to the right of
Assignee thereafter to enforce its rights under this Assignment. The rights of
Assignee under this Assignment shall be separate, distinct and cumulative and
none shall be given effect to the exclusion of the others. No act of Assignee
shall be construed as an election to proceed under any one provision herein to
the exclusion of any other provision.
14. 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.
15. Counterparts. This Assignment may be executed in any
number of counterparts, each of which when take together shall constitute a
single agreement.
16. Notice. Notice to the parties shall be provided at
the addresses and in the manner set forth in the Debt Documents.
17. Governing Law. This Assignment shall be governed and
construed in accordance with the laws of the State of Illinois.
18. Termination of Assignment. Upon payment in full of
the Obligations and the satisfaction or discharge of the Debt Documents, this
Assignment shall become and be void and of no effect.
19. Successors and Assigns. This Assignment, together
with the covenants and warranties herein contained, shall inure to the benefit
of Assignee and any subsequent holder of or successor to the Debt Documents and
shall be binding upon Assignor, its successors and assigns and any subsequent
holder of the Obligations.
20. Recordable Document. Assignor hereby acknowledges and
agrees that Assignee shall record this Assignment against the Property.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, Assignor has executed this Assignment
as of the day and year first above written.
THE EAGLEBROOK GROUP, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: President and Secretary
---------------------------------
STATE OF _____________________ )
) SS
COUNTY OF ____________________ )
On the _____ day of December, 2002, before me personally came
_______________ and _______________, to me known, who, being by me duly sworn,
did depose and say that they are the __________ and __________, respectively, of
THE EAGLEBROOK GROUP, INC., a Delaware corporation, described in and which
executed the foregoing instrument as Assignor thereunder, and that they signed
their respective names thereto as such __________ and __________ and on behalf
of such corporation, pursuant to proper authority granted therefor, for the uses
and purposes therein set forth.
______________________________________
Notary Public
My Commission Expires: _______________