Loading...
HomeMy WebLinkAbout1995-06-27; Industrial Development Authority; 002 Exhibit 8; Assignment of Project AgreementsASSIGbtMENT OF PROJECT AGREEMENTS THIB ASSIGNMENT OF PROJECT AGREENENTS (the "Assignmentt8) is made as of July 1, 1995, by CIP LIMITED, L.P., a California Limited Partnership (~gA~~ign~rt8), to and for the benefit of FIRST INTERSTATE BANK OF CALIFORNIA, a California corporation, (~8Assign8egm), acting as Trustee under that certain Indenture dated as of July 1, 1995, (m@Indenturewn) between First Interstate Bank of California and Industrial Development Authority of the City of Carlsbad, California (nwIssuermm), with respect to the following Recitals: A. Assignor is the owner of that certain real property more particularly described on Bxh ibit A attached hereto and incorporated herein by this reference (the *1Property88). Pursuant to the Indenture, the Issuer has assigned its rights under that certain Loan Agreement dated July 1, 1995, ("Loan Agrement") between Assingor and Issuer to the Trustee. Assignor has agreed to construct the Improvements (as defined in the Loan Agreement) on the Property. Except as otherwise provided in this Assignment, initially-capitalized terms used in this Assignment shall have the meanings set forth in the Loan Agreement. B. Pursuant to the Loan Agreement, Issuer has agreed to loan to Assignor up to Two million seventy thousand dollars ($1,102,500.00) for the purpose of constructing the Improvements. C. As a condition precedent to the making of disbursements by Assignee under the Loan Agreement, Issuer has required that Assignor execute and deliver this Assignment to Assignee as security for the performance of Assignor's obligations under the Loan Documents. NOW THEREFORE, Assignor hereby covenants and agrees as follows : 1. Assignor hereby assigns, grants, conveys and transfers to Assignee, as security for Assignor's obligations under the Loan Documents and all other obligations of Assignor which are secured by the Deed of Trust, all of Assignor's rights, titles, interests, privileges, benefits and remedies in, to and under the following: (a) the General Contract, contracts and other agreements described in Exhibit B attached hereto, which exhibit is incorporated herein by this reference; (b) all other agreements heretofore or hereafter entered into with any contractor, fabricator or supplier in connection with the design or construction of the Project; (a) any and all present and future amendments, modifications, supplements, general conditions, change orders and addenda to any of the items described in clauses (a) and (b) above; and (d) any and all guarantees, warranties and other undertakings entered into or delivered with respect to any LA01/80277.1 -1- of the items described in clauses (a) through (c), above; and (e) all building permits, governmental permits, licenses, variances, use permits, other authorizations now or hereafter issued in connection with the construction, development or operation of the Project. 2. Assignor agrees to obtain and deliver to Bank con- currently with its delivery of this Assignment consents (substantially in the form of Exhibit C attached hereto) from each of the parties (other than Assignor) to the agreements described in Section 1 above. Each of the agreements described in Section 1 above is referred to as an "Agreement," and all of such agreements are collectively referred to herein as the "Agreements. 3. It is expressly understood and agreed by Assignor and by each person executing a Consent to this Assignment (hereinafter referred to as a "consenting Party") that Assignee does not hereby assume any of Assignor's obligations or duties concerning any Agreement, including, without limitation, any obligation to pay for the work done pursuant thereto, unless and until Assignee exercises its rights hereunder and under the Agreement in question. 4. Assignee shall not exercise its rights under this Assignment until the occurrence of an Event of Default. Upon the occurrence of an Event of Default, Assignee may, at its option, upon written notice to the appropriate Consenting Party, exercise any or all of the rights and remedies granted to Assignor under the Agreement with the Consenting Party as if Assignee had been an original party to such Agreement. Upon giving such notice to the Consenting Party, Assignee may elect to assume all obligations of Assignor under the Agreement between Assignor and the Consenting Party; provided, however, that Assignee shall not be responsible for any default of Assignor under the Agreement occurring prior to the time Assignee gives such notice to the Consenting Party. 5. Upon the occurrence of an Event of Default, Assignee shall have, in addition to all other rights and remedies available to it under the Loan Documents, the right (and Assignor hereby irrevocably constitutes and appoints Assignee as its attorney-in-fact, which power is coupled with an interest, to do so) to (i) demand, receive and enforce Assignor's rights with respect to the Agreements, (ii) give appropriate receipts, releases and satisfactions for and on behalf of Assignor, (iii) do any and all acts in the name of Assignor or in the name of Assignee with the same force and effect as Assignor could do if this Assignment had not been made; and (iv) perform and discharge each and every obligation covenant, condition, and agreement of Assignor under the Agreements. Assignee shall be under no obligation to perform or discharge any obligation, duty or liability under any of the Agreements by reason of this Assignment. 6. Assignor hereby represents and warrants to Assignee that no previous assignment, sale, pledge, transfer, mortgage or other encumbrance of any interest in the Agreements or any of them has been made, and Assignor agrees not to assign, sell, pledge, transfer, mortgage or otherwise encumber its interest in the Agreements or any of them so long as this Assignment is in effect. Assignor further represents and warrants that Assignor is not in default under the Agreements, or any of them and, to Assignor's best knowledge, no other party to the Agreements is in default thereunder except as has been disclosed to Assignee in writing. -2- 7. Assignor shall at all times perform and discharge each of its obligations under the Agreements, diligently enforce its rights in, under and to the Agreements, unless otherwise directed by Assignee in writing, and shall, at Assignor's sole cost and expense, appear in and defend Assignee in any action or proceeding in any way connected with any of the Agreements, and shall pay all reasonable costs and expenses, including, without limitation, attorneys' fees, which Assignee may incur in connection with Assignee's appearance, voluntarily or otherwise, in any such action or proceeding. 8. Assignor hereby agrees to pay and protect, and indemnify and hold Assignee harmless from and against, any and all claims, demands, liabilities, losses, lawsuits, judgments, and costs and expenses (including, without limitation, reasonable attorneys' fees) to which Assignee may become exposed, or which Assignee may incur, in connection with any of the Agreements or in exercising its rights under this Assignment. 9. No course of dealing on the part of Assignee and no delay or failure by Assignee to exercise any right which Assignee may have hereunder shall be deemed a waiver thereof or otherwise prejudice any of its rights, remedies or power hereunder unless so agreed in writing by Assignee, and the waiver by Assignee of any Potential Default, Potential Balancing Default or Event of Default by Assignor hereunder shall not constitute a continuing waiver or a waiver of any other Potential Default, Potential Balancing Default or Event of Default or of the same Potential Default, Potential Balancing Default or Event of Default on any other occasion. 10. The rights and remedies of Assignee under this Assignment are cumulative and are not in lieu of, but are in addition to, any other rights or remedies which Assignee may have under the Loan Agreement, the other Loan Documents, at law, or otherwise. 11. If any provision of this Assignment shall be invalid, illegal or unenforceable, it shall not affect or impair the validity, legality and enforceability of any other provisions of this Assignment or of the other Loan Documents. 12. This Assignment may not be amended, modified or changed, nor shall any waiver of any provision hereof be effective, except by an instrument in writing and signed by the party against whom enforcement of the waiver, amendment, change, modification or discharge is sought. 13. This Assignment shall be binding upon Assignor and its successors and assigns, and shall inure to the benefit of Assignee and its successors and assigns. Assignee may assign all or any portion of its interest in the Agreements or its rights created hereunder and, in such event, Assignor, at its sole expense, shall promptly execute, acknowledge and deliver such additional documents, instruments and agreements as may be required by Assignee in connection with any such assignment. 14. Upon the satisfaction of all obligations of Assignor to Assignee under the Loan Agreement and the due recordation of the release or reconveyance of all deeds of trust now or hereafter securing said obligations, this Assignment shall automatically terminate. Assignee hereby agrees, upon termination of this Assignment, to execute a release and reconveyance of this Assignment and all further documents, if any, necessary or required in order to evidence the termination of this Assignment. 15. THIS ASSIGNMENT SHALL BE GO-RNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA. LMlpJ277.1 -3- 16. All notices, requests and demands to be made hereunder shall be in writing and shall be made in accordance with the Loan Agreement. LA01/80277.1 -4- I# WITNEB8 WHEREOF, the undersigned has executed this Assignment of Project Agreements as of the date first above written. CIP LIMITED, Lapa A California Limited Partnership BY its General Partner: Whammy, Inc. A California corporation By: Jeffrey C. Hamann, President By: Daniel M. Whitaker, Secretary By: Jeffrey C. Hamann, as an individual and as Trustee of the J.C. Hamann Family Trust, UTD 4/25/86 By: Gregg Hamann, as an individual and as Trustee of the Gregg Hamann Family Trust, UTD 4/25/86 By: Daniel M. Whitaker as an individual By: Daniel M. Whitaker and/or Dona C. Whitaker, Co- Trustees of the Whitaker Family Trust, UTD 10/22/79, as Amended and Restated 12/22/83 Address : 475 W. Bradley Avenue El Cajon, CA 92020 Attention: Jeffrey C. Hamann Daniel M. Whitaker U01/80277.1 -5- EXHIBIT A DESCRIPTION OF THE PROPERTY A-1 EXHIBIT B DESCRIPTION OF AGREEMENTS B-1 EXHIBIT C FORM OF CONSENT TO ASSIGNMENT OF PROJECT AGREEMENT The undersigned hereby consents to the foregoing Assignment of Project Agreement (the llA~~ignme~tlg) . Upon receipt of notice from Assignee requesting that it do so, the undersigned shall perform pursuant to the terms and conditions of its Agreement with Assignor described in Exhibit B attached to said Assignment, notwithstanding the occurrence of any Event of Default on the part of Assignor under the Loan Agreement or the foreclosure of the Deed of Trust by Assignee, so long, in either case, as all obligations owed to the under- signed under said Agreement accruing after the date of such notice are satisfied as they become due. The undersigned also agrees that, in the event of a breach by Assignor of any of the terms and conditions of said Agreement, the undersigned will give prompt written notice to Assignee of such breach at the following address: First Interstate Bank of California, San Diego Real Estate Center, 401 B Street, %304, San Diego, California 92101. Assignee shall have sixty (60) days from the receipt of such notice of default to remedy or cure said default before the undersigned may exercise any rights and remedies with respect thereto; provided, however, that nothing herein shall require Assignee to cure said default, but As- signee shall, in its sole discretion, have the option to do so. All capitalized terms used in this consent shall have the same meaning as in the Assignment. The Agreement with Assignor and the undersigned is in full force and effect and no default on the part of Assignor is known by the undersigned to exist as of the date hereof. c-1