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HomeMy WebLinkAbout6C(2) 4CC1> COLLATERAL ASSIGNMENT OF CONTRACT RIGHTS This Collateral Assignment of Contract Rights ("Collateral Assignment"), entered into on April _, 2014 ("Effective Date"), is made by Union Station Properties,LP,("USP"), with an address at 506 West South Street, South Bend, Indiana 46601 and Studebaker Building 84, LLC ("SB 84"), with an address at 6561 Lonewolf Dr., South Bend, Indiana 46628 (collectively, the "Assignor"), in favor of United Federal Credit Union ("Lender"), with an address at 2807 S. Street, St. Joseph, Michigan 49085. A. SB 84 is the owner of certain real estate and improvements located at 600 United Drive and 635 South Lafayette Boulevard, in South Bend, Indiana, consisting of 3 land parcels, 2 of which have been developed with larger industrial facilities, and the third parcel encompassing a thin tract of land located between the existing buildings and the adjacent Penn Central Railroad property (the "Property"). B. USP and the City of South Bend, Indiana Board of Public Works (the "Board") and the South Bend Redevelopment Commission (the"Commission") (the Board and Commission are referred to herein collectively as the "Contracting Party") entered into a certain Environmental Agreement Regarding Ivy Tower Building dated October 22, 2012, which was amended by the First Amendment to Environmental Agreement Regarding Ivy Tower Building between USP and the Board dated April 30, 2013, and subsequently amended by the Second Amendment to Environmental Agreement Regarding Ivy Tower Building among USP, SB 84, the Commission, and the Board dated April 15, 2014 (collectively, the "Environmental Agreement"). A copy of the Environmental Agreement, First Amendment and Second Amendment are attached hereto as Exhibit A. C. After the original Environmental Agreement was entered into, USP determined that SB 84, not USP, would purchase the Property with the understanding that USP would assign the Environmental Agreement to SB 84 or add SB 84 as a party to the Environmental Agreement. SB 84 was added to the Environmental Agreement pursuant to the Second Amendment. D. In connection with financing the purchase of the Property, DSM Holding, LLC, an Indiana limited liability company, with an address of 6561 Lonewolf Dr., South Bend, Indiana ("DSM"), secured a loan (the "Loan") from the Lender pursuant to the terms and conditions of a certain Business Loan Agreement dated July 12, 2013, as amended, and certain Related Documents referred to therein (collectively, the "Loan Documents"), a portion of the proceeds from which are being used by SB 84 to redevelop the Property. E. As partial consideration of Lender's agreement to make the above-referenced financial accommodations to DSM, and as security for repayment of the Loan, following SB 84's addition as a party to the Environmental Agreement, USP and SB 84 agreed to collaterally assign the Environmental Agreement to Lender. F. The Board has agreed and consented to this Collateral Assignment. NOW, THEREFORE, in order to induce the Lender to continue the Loan, and for other good and valuable consideration, the Assignor, intending to be legally bound, hereby covenants in favor of the Lender and agrees as follows: 1. Collateral Assignment. The Assignor grants, transfers and assigns to the Lender, its successors and assigns, the Environmental Agreement, together with any and all amendments, extensions, modifications, supplements, and all rights of the Assignor therein, to have and to hold unto the Lender as security for the full performance of the Loan under the Loan Documents and any amendments, extensions, renewals and increases of or to the Loan, and all future loans owing by DSM or the Assignor and secured by an interest in the Ivy Tower Building to the Lender or to any other direct or indirect subsidiary of Lender, and all costs and expenses of Lender incurred in the documentation, negotiation, modification, enforcement, collection and otherwise in connection with any of the foregoing, including reasonable attorneys' fees and expenses (hereinafter referred to collectively as the "Obligations"). The Assignor agrees that the Lender shall have the rights stated in this Collateral Assignment with respect to the Environmental Agreement, in addition to the other rights that the Lender may have by law. 2. UCC Financing Statement. To perfect its security interest in this Collateral Assignment, Lender may file a financing statement with the Indiana Secretary of State, in accordance with applicable Indiana law until such time as all Loan Documents are fulfilled. 3. Performance of Environmental Agreement by Assignor. The Assignor agrees to faithfully abide by,perform and discharge each and every obligation of the Environmental Agreement that is to be performed by the Assignor. The Assignor shall use its best efforts to enforce or secure the performance of each and every term of the Environmental Agreement. The Assignor agrees to provide prompt written notice to the Lender of the occurrence or existence of any default by any party to the Environmental Agreement. 4. Power to Modify or Assign the Environmental Agreement. The Assignor hereby expressly releases, relinquishes and surrenders all of the Assignor's right,power and authority to amend, modify, release, terminate or in any way alter the Environmental Agreement without the Lender's prior written consent, which consent shall not be unreasonably withheld or delayed, and any attempt on the part of the Assignor to exercise any such right, power or authority without the Lender's prior written consent shall constitute a default hereunder. The Assignor will not make additional assignments of the Environmental Agreement or any part thereof without the Lender's prior written consent, which consent shall not be unreasonably withheld. 5. Lender's Right to Enforce and Perform Under Environmental Agreement. The Lender, in addition to its rights and remedies under the other Loan Documents and applicable law may, at its option, without notice to or demand upon the Assignor and without waiving or releasing any Obligation, irrespective of whether declaration of default under any Loan Document has been made and without regard to the adequacy of security for the Obligations, either in person or by agent with or without bringing any action or proceeding or by a receiver to be appointed by a court,to the extent permitted by law, make, cancel, enforce, modify, or cure defaults in the Assignor's performance under the Environmental Agreement, negotiate with the Contracting Party and do any and all other acts which the Lender deems necessary to protect the security hereof and the lien hereof. 6. Lender Not Obligated to Perform. This Collateral Assignment is given only as collateral security, and the Lender shall not be obligated to perform or discharge any obligation or liability of the Assignor under the Environmental Agreement. No action or inaction of the Lender under or in connection with the Environmental Agreement shall in any manner release the Assignor from its obligations under this Collateral Assignment or the Obligations. -2- 7. Indemnity. The Assignor agrees to indemnify the Lender, each legal entity, if any, who controls the Lender and each of their respective directors, officers and employees (collectively, the "Indemnified Party"), and to hold each Indemnified Party harmless from and against, any and all claims, damages, losses, liabilities and expenses (including all fees and charges of internal or external counsel with whom any Indemnified Party may consult and all expenses of litigation and preparation therefor) which any Indemnified Party may incur, or which may be asserted against any Indemnified Party by any person, entity or governmental authority(including any person or entity claiming derivatively on behalf of the Assignor), in connection with, or arising out of, or relating to the Environmental Agreement, or arising out of or by reason of this Collateral Assignment, whether (a) arising from or incurred in connection with any breach of a representation, warranty or covenant by the Assignor, or(b) arising out of or resulting from any suit, action, claim, proceeding or governmental investigation, pending or threatened, whether based on statute, regulation or order, or tort, or contract or otherwise, before any court or governmental authority; provided, however, that the foregoing indemnity agreement shall not apply to any claims, damages, losses, liabilities and expenses solely attributable to an Indemnified Party's gross negligence or willful misconduct. The indemnity agreement contained in this Section shall survive the termination of this Collateral Assignment, payment of any Loan and assignment of any rights hereunder. The Assignor may participate, at its expense, in the defense of any such action or claim. 8. Power of Attorney. The Assignor hereby irrevocably constitutes and appoints the Lender and any officer thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of the Assignor or in its name, from time to time in the Lender's discretion for the purpose of carrying out the terms of this Collateral Assignment, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Collateral Assignment and, without limiting the generality of the foregoing, the Assignor hereby gives the Lender the power and right on behalf of the Assignor, during a default or event of default under the Obligations, and without notice to or assent by the Assignor, to do the following: (i)to receive payment of, endorse, and receipt for, any and all monies, claims and other amounts due and to become due at any time in respect of or arising out of the Environmental Agreement; (ii)to commence and prosecute any suits, actions or proceeding at law or in equity in any court of competent jurisdiction to collect any amounts due under the Environmental Agreement and to enforce any other right in respect of the Environmental Agreement; (iii)to settle, compromise or adjust any suit, action or proceeding described above, and, in connection therewith, to give such discharges or releases as the Lender may deem appropriate; (iv) to negotiate with, enter into further agreements with, and otherwise deal with the Contracting Party with respect to the Environmental Agreement and the subject matter thereof; and(v)to do at any time, or from time to time, all acts and things which the Lender deems necessary to protect or preserve the Environmental Agreement and the Lender's security interest and rights therein in order to effect the intent of this Collateral Assignment, all as fully and effectively as the Assignor might do. The Assignor hereby ratifies all that such attorneys shall lawfully do or cause to be done by virtue hereof. This power of attorney is a power coupled with an interest, will be irrevocable and shall terminate only upon indefeasible payment in full of the Obligations and the termination of this Collateral Assignment. The powers conferred upon the Lender hereunder are solely to protect the Lender's interests in the Environmental Agreement and will not impose any duty upon it to exercise any such powers. 9. Notices. All notices, demands, requests, consents, approvals and other communications required or permitted hereunder ("Notices") must be in writing and will be effective upon receipt. Notices may be given in any manner to which the parties may separately agree, including electronic -3 - mail. Without limiting the foregoing, first-class mail, facsimile transmission and commercial courier service are hereby agreed to as acceptable methods for giving Notices. Regardless of the manner in which provided, Notices may be sent to a party's address as set forth above or to such other address as any party may give to the other for such purpose in accordance with this section. 10. Notices Given By Contracting Party. Assignor shall request Contracting Party to provide a copy of any notice given by Contracting Party to the Assignor to the Lender and shall promptly provide a copy of any notice it receives that has not been forwarded to Lender by the Contracting Party. 11. Preservation of Rights. No delay or omission on the Lender's part to exercise any right or power arising hereunder will impair any such right or power or be considered a waiver of any such right or power, nor will the Lender's action or inaction impair any such right or power. The Lender's rights and remedies hereunder are cumulative and not exclusive of any other rights or remedies that the Lender may have under other agreements, at law or in equity. 12. Illegality. If any provision contained in this Collateral Assignment should be invalid, illegal or unenforceable in any respect, it shall not affect or impair the validity, legality and enforceability of the remaining provisions of this Collateral Assignment. 13. Changes in Writing. No modification, amendment or waiver of, or consent to any departure by the Assignor from, any provision of this Collateral Assignment will be effective unless made in a writing signed by the Lender, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on the Assignor will entitle the Assignor to any other or further notice or demand in the same, similar or other circumstance. 14. Successors and Assigns. This Collateral Assignment will be binding upon and inure to the benefit of the Assignor and the Lender and their respective successors and assigns, provided, however, that the Assignor may not assign this Collateral Assignment, in whole or in part, without the Lender's prior written consent and the Lender, at any time, may assign this Collateral Assignment in whole or in part. In the event of foreclosure by the Lender, Assignor expressly agrees that the Lender may assign all its rights under this Collateral Assignment to its successor. 15. Interpretation. In this Collateral Assignment, unless the Lender and the Assignor otherwise agree in writing, the singular includes the plural and the plural the singular; words importing any gender include the other genders; references to statutes are to be construed as including all statutory provisions consolidating, amending or replacing the statute referred to; the word"or" shall be deemed to include"and/or", the words"including", "includes"and"include" shall be deemed to be followed by the words"without limitation"; references to articles, sections(or subdivisions of sections) or exhibits are to those of this Collateral Assignment; and references to agreements and other contractual instruments shall be deemed to include all subsequent amendments and other modifications to such instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of this Collateral Assignment. Section headings in this Collateral Assignment are included for convenience of reference only and shall not constitute a part of this Collateral Assignment for any other purpose. If this Collateral Assignment is executed by more than one party as Assignor, the obligations of such persons or entities will be joint and several. 16. Governing Law and Jurisdiction. This Collateral Assignment will be interpreted and the rights and liabilities of the Assignor and the Lender determined in accordance with the laws of the State of Indiana, excluding its conflict of laws rules. The Assignor hereby irrevocably consents to the -4- exclusive jurisdiction of any state or federal court located in or serving St. Joseph County, Indiana; provided that nothing contained in this Collateral Assignment will prevent the Lender from bringing any action, enforcing any award or judgment or exercising any rights against the Assignor individually, against any security or against any property of the Assignor within any other county, state or other foreign or domestic jurisdiction. The Assignor agrees that the venue provided above is the most convenient forum for both the Lender and the Assignor. The Assignor waives any objection to venue and any objection based on a more convenient forum in any action instituted under this Collateral Assignment. 17. Waiver of Jury Trial. EACH OF THE ASSIGNOR AND THE LENDER IRREVOCABLY WAIVES ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS COLLATERAL ASSIGNMENT, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS COLLATERAL ASSIGNMENT OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE ASSIGNOR ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY. 18. Defeasance. Upon payment in full of the Obligations, this Collateral Assignment shall become null and void and of no force and effect. The parties hereto have executed this Collateral Assignment as of the Effective Date. Assignor: STUDEBAKER BUILDING 84, LLC By: Name: Kevin Michael Smith Title: Member UNION STATION PROPERTIES, LP By: Name: Kevin Michael Smith Title: Partner Lender: UNITED FEDERAL CREDIT UNION \ By: Name: Mark Carboneau Title: Business Services Advisor -5- EXHIBIT A Environmental Agreement and Amendments