Exhibit 10(e)
ASSIGNMENT OF LEASE AND RENTS
THIS ASSIGNMENT OF LEASE AND RENTS (this "Assignment") is made and
entered into as of the 31st day of March, 2000 by and between ASSET HOLDINGS
III, L.P.., an Ohio limited partnership, as the Lessor (the "LESSOR"), and
SUNTRUST BANK, a banking corporation duly organized and validly existing under
the laws of the State of Georgia (the "CREDIT BANK"). Capitalized terms that are
not otherwise clearly defined herein shall have the meanings assigned to them in
the Lease Agreement of even date herewith (as amended, supplemented or restated
from time to time, the "LEASE"), by and between the Lessor and ADESA CORPORATION
(the "LESSEE").
W I T N E S S E T H
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WHEREAS, the Lease provides for, among other things, the lease of the
Properties described on Exhibit A attached hereto ( together, the "LEASED
PROPERTY") from the Lessor to the Lessee;
WHEREAS, the Lessor has requested Cornerstone Funding Corporation I, a
Delaware corporation (the "ISSUER"), make a loan to the Lessor in the original
principal amount of $28,373,000 (the "LOAN"), to be evidenced by the Borrower
Promissory Note, in order to finance a portion of the Property Costs to be
incurred by the Lessor in connection with its acquisition of the Leased Property
and arranging for the transactions contemplated by the Operative Documents;
WHEREAS, the Credit Bank, the Lessor, the Lessee and the Issuer have
entered into that certain Participation Agreement dated as of March 31, 2000
(together with any amendments or supplements thereto, the "PARTICIPATION
AGREEMENT"), pursuant to which the Issuer has agreed to issue and sell
$28,373,000 in aggregate principal amount of its Floating Rate Notes, Series
2000A (the "Notes"), and apply the proceeds thereof in order to make the Loan to
the Lessor, on the condition, among others, that the Credit Bank issue to the
Note Trustee the Letter of Credit as security for the payment of the Notes;
WHEREAS, the Lessor and the Credit Bank have entered into that certain
Reimbursement Agreement dated as of March 31, 2000 (the "REIMBURSEMENT
AGREEMENT"), pursuant to which the Credit Bank has agreed to issue the Letter of
Credit to the Note Trustee and the Lessor has agreed to pay all fees required
for the issuance and maintenance of the Letter of Credit and to reimburse the
Credit Bank for all Drawings made under the Letter of Credit and all Letter of
Credit Liabilities, and to secure its obligations under the Reimbursement
Agreement by granting the Mortgages and this Assignment;
WHEREAS, a condition to the Credit Bank's issuance of the Letter of
Credit and the Lessor's execution of the Lease is the execution and delivery of
the Guaranty to the Credit Bank and the Lessor by Minnesota Power, Inc., a
Minnesota corporation (the "GUARANTOR")
WHEREAS, to provide further security for the payment by the Lessor of
its obligations to the Credit Bank under the Reimbursement Agreement and the
other Operative Documents, the Lessor, pursuant to this Assignment, has agreed
to assign to the Credit Bank substantially all of its rights under the Lease and
the Guaranty, as provided herein; and
WHEREAS, to secure the Lessor's obligations to the Credit Bank under
the Reimbursement Agreement and the other Operative Documents, the Lessor, as
mortgagor has granted to the Credit Bank, as mortgagee, that certain Deed of
Trust and Security Agreement (Charlotte Property), that certain Deed of Trust
and Security Agreement (Knoxville Property), and that certain Mortgage and
Security Agreement (Framingham Property), each of even date herewith (together
with any amendments or supplements thereto, the "MORTGAGES"), collectively
providing, among other things, for a mortgage lien on and security interest in
each Property, and which are intended to be recorded in the real property
records of the respective jurisdiction in which the Properties are located;
NOW, THEREFORE, in consideration of the mutual agreements contained in
this Assignment and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. ASSIGNMENT OF LEASE AND RIGHTS UNDER GUARANTY. The
Lessor, as security for the payment of its obligations to the Credit Bank under
the Reimbursement Agreement and the other Operative Documents and the
performance and observance by the Lessor for the benefit of the Credit Bank of
the provisions thereof, has assigned, transferred, conveyed and set over, and by
these presents does assign, transfer, convey and set over, to the Credit Bank
the following:
ALL OF THE LESSOR'S INTEREST IN, TO AND UNDER THE LEASE and all of the
Lessor's estate, right, title, interest, claim and demand as the Lessor under
the Lease and all existing or future amendments, supplements or modifications of
the Lease and any guarantees of the Lessee's obligations under the Lease and any
agreements, documents, instruments, assignments, pledges, security agreements,
security interests or collateral securing at any time the Lessee's obligations
under the Lease;
TOGETHER WITH all rights, powers, privileges, options and other
benefits of the Lessor under the Lease, including, without limitation, (1) the
right to receive and collect all Rent, income, revenues, issues, profits, Loss
Proceeds, Awards, bankruptcy claims, liquidated damages, purchase price proceeds
(pursuant to SECTIONS 11.1, 11.2, 14.1, 15.1, 15.2, 15.3, 15.5 or 15.6 of the
Lease or otherwise), the Lease Balance, the Recourse Deficiency Amount, and
other payments, tenders and security payable to or receivable by the Lessor
under the Lease at any time, (2) the right to give and withhold on behalf of and
in the name of Lessor all waivers, consents, modifications, amendments and
agreements under or with respect to the Lease, (3) the right to give and receive
copies of all notices and other instruments or communications under or pursuant
to the Lease, (4) the right to take such action and to exercise such rights and
remedies upon the occurrence and during the continuance of a Default or an Event
of Default as shall be permitted by the Lease or by Applicable
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Law, excluding, however, the Excluded Rights (herein defined), and (5) the right
to do any and all other things whatsoever which the Lessor or any lessor under
the Lease is or may be entitled to do thereunder other than with respect to the
Excluded Rights; and
TOGETHER WITH the irrevocable right and power to execute and deliver as
agent and attorney-in-fact of the Lessor under the Lease, with an interest and
full power of substitution, an appropriate deed, bill of sale or other
instrument or instruments of transfer necessary or appropriate for the
conveyance and transfer to the Lessee (or third-party purchasers) of the Leased
Property pursuant to ARTICLES XI, XIV or XV of the Lease, and all interests of
the Lessor therein and to perform in the name and for and on behalf of the
Lessor, as such agent and attorney-in-fact, and all other necessary or
appropriate acts with respect to any such purchase, conveyance and transfer; and
TOGETHER WITH all of the rights of the Lessor under the Guaranty and to
receive payments from the Guarantor thereunder;
EXCLUDING, HOWEVER, the following (the "EXCLUDED RIGHTS"):
(a) The Supplemental Rent payable in respect of the Facilitation
Agreement, as provided in SECTION 4.2 of the Lease and all payments (whether or
not constituting Supplemental Rent) of any indemnity or other amounts under the
Lease or any other Operative Document which are intended to reimburse the Lessor
for costs, expenses, damages or losses incurred by the Lessor and which by the
terms thereof are payable to the Lessor or its successors, permitted assigns,
constituent members, or the incorporators, stockholders, employees, officers,
director, agents or Affiliates of any of the foregoing;
(b) The nonexclusive right to receive from the Lessee copies of all
notices, certificates, and other documents and information which the Lessee or
any other Person is required to give or furnish to the Lessor pursuant to the
Lease; and
(c) All rights to sue for, demand, collect or enforce any of the
foregoing Excluded Rights and all amounts paid or payable in connection
therewith, all such Excluded Rights being expressly excepted and excluded from
this collateral assignment.
SECTION 2. ASSIGNMENT AS SECURITY.
(a) The assignment made hereby is executed as an absolute and present
assignment, but is delivered to the Credit Bank as security for the Lessor's
obligations to the Credit Bank under the Reimbursement Agreement and other
Operative Documents, and the execution and delivery hereof shall not in any way
impair or diminish any obligations of the Lessor as lessor under the Lease or of
the Lessor or the Credit Bank under any of the other Operative Documents, nor
impair, affect or modify any of the terms and conditions of the Reimbursement
Agreement or any of the other Operative Documents, nor shall any of the
obligations of the Lessor or of any other Person under any of the Operative
Documents (other than the express obligations of the Credit Bank) be imposed
upon the Credit Bank, including, but not limited to, collecting Rent or
enforcing performance by the Lessee.
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(b) Without limiting the generality of the foregoing, the Credit Bank
shall not be obligated to perform or discharge, nor does the Credit Bank hereby
undertake to perform or discharge, any obligation, duty or liability of the
Lessor under the Lease or of the Lessor under any of the other Operative
Documents, or under or by reason of this Assignment and the Lessor does hereby
waive any and all liability, loss or damage which may or might be asserted
against the Credit Bank by reason of any alleged obligations or undertakings on
its part to perform or discharge any of the terms, covenants or agreements
contained in the Lease to be performed or discharged by the Lessor thereunder.
It is further understood and agreed that this Assignment shall not operate to
(i) place responsibility for the control, care, management or repair of the
Leased Property upon the Credit Bank, nor for the carrying out of any of the
terms and conditions of the Lease or of any of the other Operative Documents
(except to the extent expressly provided therein), in any such case binding upon
or applicable to the Lessor or (ii) make the Credit Bank responsible or liable
for any waste with respect to the Leased Property or any part thereof by the
Lessee or any Person other than by the Credit Bank, or for any dangerous or
defective condition of the Leased Property or any part thereof, or for any
negligence of the management, upkeep, or repair or control of the Leased
Property or any part thereof resulting in loss or injury or death to any Lessee,
any sublessee, sublessor, licensee, invitee, employee or stranger other than the
gross negligence or willful misconduct of the Credit Bank.
SECTION 3. POWER OF ATTORNEY WITH RESPECT TO THE LEASE AND THE
GUARANTY. Except for the Excluded Rights, the Lessor does hereby irrevocably
constitute and appoint the Credit Bank its true and lawful attorney with an
interest and full power of substitution, for it and in its name, place and
stead, to do any or all of the following: (i) ask, demand, collect, receive
receipt for, sue for, compound and give acquittance for all Basic Rent,
Supplemental Rent, payments pursuant to ARTICLES IV, XI, XIV and XV of the
LEASE, purchase proceeds or avails, income, Awards, Loss Proceeds, the Lease
Balance, the Recourse Deficiency Amount, and other sums paid or payable to the
Lessor pursuant to the Lease and the Guaranty and other sums which are assigned
under SECTION 1 hereof and (ii) sue for, compound and give acquittance for, or
settle, adjust or compromise any claim for any and all such Rent, purchase
proceeds or avails, income, Awards, Loss Proceeds, the Lease Balance, the
Recourse Deficiency Amount, all payments from the Guarantor under the Guaranty
and all proceeds thereof, and other sums which are assigned under SECTION 1
hereof as fully as the Lessor could itself do, and in its discretion to file any
claim or take any other action or proceedings, either in its own name or in the
name of the Lessor or otherwise, which the Credit Bank may deem necessary or
appropriate to protect and preserve the right, title and interest of the Credit
Bank in and to such Rent and other sums and security intended to be afforded
hereby. The powers granted to the Credit Bank in this Section 3 are, and are
intended to be, exclusive to the Credit Bank, and the Lessor shall not take any
actions covered by the powers granted in this Section 3 unless expressly
requested to do so by the Credit Bank
SECTION 4. CREDIT BANK DESIGNATED RECIPIENT. The Lessor hereby
directs the Lessee and the Guarantor to deliver or remit directly to the Credit
Bank at its address set forth in the Participation Agreement all Basic Rent,
Supplemental Rent, payments pursuant to ARTICLES IV, XI, XIV and XV of the
LEASE, purchase proceeds or avails, income, Awards, Loss Proceeds, the Lease
Balance, the Recourse Deficiency Amount, and other sums paid or payable to the
Lessor pursuant to the Lease and the Guaranty (but excluding in all cases all
Excluded Rights and proceeds thereof), by
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wire transfer of Federal or other funds current and immediately available to the
Credit Bank on or before the due date thereof.
SECTION 5. ALLOCATION PURSUANT TO REIMBURSEMENT AGREEMENT.
Notwithstanding anything contained herein to the contrary, any and all Basic
Rent, Supplemental Rent, payments pursuant to ARTICLES IV, XI, XIV and XV of the
Lease, payments in respect of the Lease Balance and of the Recourse Deficiency
Amount or otherwise, purchase proceeds or avails, income, Awards, Loss Proceeds
and other sums payable by the Lessee under the Lease or by the Guarantor under
the Guaranty paid to or received or collected by or on behalf of the Credit Bank
shall be paid, allocated and distributed pursuant to the terms of, and in the
order of priority provided for in, ARTICLE III of the Reimbursement Agreement
SECTION 6. EXCLUDED RIGHTS. Notwithstanding anything contained
herein to the contrary, and regardless of whether or not a Loan Event of Default
shall occur or exist, all Excluded Rights are hereby retained by the Lessor and
are not assigned to the Credit Bank.
SECTION 7. IRREVOCABILITY; SUPPLEMENTAL INSTRUMENTS. The Lessor
agrees that the assignment made hereby and the designation and direction to the
Lessee set forth in SECTION 4 are irrevocable, and that the Lessor will not,
while said assignment is in effect or thereafter until the Lessee has received
from the Credit Bank written notice of the termination of said assignment, make
any other assignment, designation or direction inconsistent herewith, and agrees
that any assignment, designation or direction inconsistent herewith shall be
void. In addition, the Lessor shall from time to time, upon request of the
Credit Bank, execute all instruments of further assurance and all such
supplemental instruments as the Credit Bank may reasonably specify.
SECTION 8. AMENDMENTS OR TERMINATION OF THE LEASE. Except as
otherwise permitted under this SECTION 8 or SECTIONS 6.1 or 8.4 of the
Participation Agreement, the Lessor shall not enter into any agreement amending,
supplementing, hypothecating, waiving, discharging or terminating the LEASE
(other than solely involving Excluded Rights), the Mortgages or any other
agreement, document or instrument hereby assigned by the Lessor to the Credit
Bank.
SECTION 9. LESSEE'S CONSENT AND AGREEMENT. The consent and
agreement by the Lessee to the provisions of this Assignment is evidenced by
their execution of this Assignment in the spaces indicated therefor at the end
of this Assignment; PROVIDED, HOWEVER, that the parties hereto agree that the
LEASE and the Participation Agreement shall control as to the respective rights
and obligations of the Lessor and the Lessee.
SECTION 10. REMEDIES CUMULATIVE. Each right, power and remedy of
the Credit Bank provided for in this Assignment or now or hereafter existing at
law or in equity or by statute or otherwise shall be cumulative and concurrent
and shall be in addition to every other right, power or remedy provided for in
this Assignment or in any other Operative Document or now or hereafter existing
at law or in equity or by statute or otherwise and the exercise or beginning of
the exercise by the Credit Bank of any one or more of such rights, powers or
remedies shall not preclude the further exercise thereof or the simultaneous or
later exercise by the Credit Bank of any or all such other rights, powers or
remedies. No failure or delay on the part of the Credit Bank to exercise any
such right, power or remedy (including, without limitation, the granting by the
Credit Bank of
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consent to any action by the Lessor) shall operate as a waiver thereof. The
Lessor stipulates that the remedies at law in respect of any default or
threatened default by the Lessor in the performance of or compliance with any of
the terms of this Assignment are not and will not be adequate, and that any of
such terms may be specifically enforced by a decree for specific performance or
by an injunction against the violation of any terms or otherwise.
SECTION 11. MISCELLANEOUS.
(a) All notices, requests, offers, consents and other instruments
given pursuant to this Assignment shall be delivered in accordance with SECTION
8.2 of the Participation Agreement. In addition, the Credit Bank shall provide
the Lessee in a timely fashion with a copy of any such instruments given by the
Credit Bank to the Lessee hereunder; provided, however, that the Credit Bank's
failure to provide the Lessee with any such copy shall not nullify or delay the
effectiveness of any such instrument.
(b) This Assignment shall be binding upon, inure to the benefit of and
be enforceable by, the respective successors and assigns of the parties hereto.
The headings to the various paragraphs of this Assignment have been inserted for
convenient reference only and shall not modify, define, limit or expand the
express provisions of this Assignment. Neither this Assignment nor any provision
hereof may be amended, modified, waived, discharged or terminated orally, but
only by an instrument signed by the parties hereto. If any provision of this
Assignment or any application thereof shall be invalid or unenforceable, the
remainder of this Assignment and any other application of such provision shall
not be affected thereby.
(c) THIS ASSIGNMENT SHALL IN ALL RESPECTS BE GOVERNED BY, CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA EXCEPT FOR
ISSUES WHICH ARE MANDATORILY SUBJECT TO THE LAWS OF THE STATE IN WHICH ANY PART
THE LEASED PROPERTY IS LOCATED, WHICH ISSUES SHALL BE INTERPRETED, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH SUCH PART OF THE
LEASED PROPERTY IS LOCATED.
(d) This Assignment may be executed in any number of counterparts as
may be convenient or necessary, and it shall not be necessary that the
signatures of all parties hereto or thereto be contained on any one counterpart
hereof or thereof. Additionally, the parties hereto agree that for purposes of
facilitating the execution of this Assignment, (i) the signature pages taken
from separate individually executed counterparts of this Assignment may be
combined to form multiple fully executed counterparts and (ii) a signature
delivered by facsimile transmission shall be deemed to be an original signature.
All executed counterparts of this Assignment shall be deemed to be originals,
but all such counterparts taken together or collectively, as the case may be,
shall constitute one and the same agreement.
(e) Upon payment in full of the indebtedness and obligations secured by
this Assignment and the Reimbursement Agreement and performance of all other
obligations secured hereby and thereby, the Credit Bank shall, at the Lessor's
expense, do, execute, acknowledge and deliver each and every deed, conveyance,
transfer and release necessary or proper to evidence the
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release of this Assignment whereupon this Assignment and the assignment created
hereby shall terminate and be of no further force or effect.
(f) Except as otherwise expressly provided below in this CLAUSE (f),
It is expressly understood and agreed by and between the Lessor, the Credit
Bank, and their respective successors and assigns that nothing herein contained
shall be construed as creating any liability (other than for intentional
misrepresentation or willful misconduct) of the Lessor or any of its Affiliates
or any of its or their respective officers, directors, members, incorporators,
stockholders, partners, venturers, trustees, beneficiaries, employees, managers
or agents, individually or personally, whether past, present or future to
perform any covenant, either express or implied, contained herein, all such
liability, if any, being expressly waived by the Credit Bank and by each and
every Person now or hereafter claiming by, through or under the Credit Bank, and
that, so far as the Lessor or any of its Affiliates or any of their respective
officers, directors, incorporators, stockholders, partners, venturers, trustees,
beneficiaries, employees or agents, individually or personally, is concerned,
the Credit Bank and any Person claiming by, through or under the Credit Bank
shall look solely to the right, title and interest of the Lessor in the Leased
Property and any proceeds from the Lessor's sale or encumbrance thereof
(provided, however, that the Credit Bank shall not be entitled to any double
recovery) for the performance of any obligation under this Assignment and under
the Operative Documents and the satisfaction of any liability arising therefrom
(other than for intentional misrepresentation or willful misconduct).
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have each caused this Assignment
to be executed by their respective duly authorized officers as of the day and
year first above written.
Witnesses: ASSET HOLDINGS III, L.P.,
as the Lessor
Signature Illegible By Realty Facility Holdings I, L.L.C.,
- -------------------------------------- an Ohio limited liability company
Print Name: Illegible
---------------------------
Richard W. Rubenstein
- --------------------------------------
Print Name: Richard W. Rubenstein Robert F. Gage
--------------------------- ----------------------------------------
Robert F. Gage, President
SUNTRUST BANK,
as the Credit Bank
Adam Marker By: C. A. Black
- -------------------------------------- -------------------------------------
Print Name: Adam Marker Name: Christopher A. Black
--------------------------- -----------------------------------
Dawn M. Marker Title:
- -------------------------------------- ----------------------------------
Print Name: Dawn M. Marker
---------------------------
Consented and agreed to as
of the day and year first
above written:
ADESA CORPORATION,
as the Lessee
Denise L. McAtee W. T. Stackhouse
- -------------------------------------- ----------------------------------------
Print Name: Denise L. McAtee William T. Stackhouse,
--------------------------- Chief Financial Officer
Linda Klingensmith
- --------------------------------------
Print Name: Linda Klingensmith
---------------------------
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THE STATE OF OHIO )
) ss.
COUNTY OF Franklin )
On this 1 day of April, 2000, before me, a Notary Public in and for said county
and state, personally appeared Robert F. Gage, the President of Realty Facility
Holdings I, L.L.C., an Ohio limited liability company and the general partner of
Asset Holdings III, L.P., an Ohio limited partnership, who acknowledged that
with due authorization, he did sign said instrument for and on behalf of Asset
Holdings III, L.P., and that the same is his free act and deed individually as
such officer, and the free act and deed individually as such officer, and the
free act and deed of Asset Holdings III, L.P.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my offical
seal on the day and year aforesaid.
Ezell Hartman Underdown
---------------------------------------
Notary Public
[NOTARIAL SEAL] EZELL HARTMAND UNDERDOWN,
STATE OF OHIO ATTORNEY AT LAW
NOTARY PUBLIC STATE OF OHIO
My commission has no
expiration date.
Section 147.03 R.C.
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STATE OF INDIANA )
--------------- ) SS.
COUNTY OF MARION )
--------------
On this 30th day of March, 2000, before me, a Notary Public in and for
said county and state, personally appeared CHRISTOPHER BLACK, the VP AND
DIRECTOR of SunTrust Bank, a banking corporation duly organized and validly
existing under the laws of the State of Georgia, who acknowledged thatwith
due authorization, he/she did sign said instrument for and on behalf of
SunTrust Bank and that the same is his/her free act and deed individually as
such officer, and the free act and deed of SunTrust Bank.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year aforesaid.
[NOTARY PUBLIC
SEAL Dawn M. Marker
INDIANA] ---------------------------
Notary Public
Dawn M. Marker
---------------------------
Printed Name
My Commission Expires: County of Residence:
FEBRUARY 28, 2008 MARION
- ---------------------------------- ---------------------------
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STATE OF INDIANA )
----------- ) SS.
COUNTY OF MARION )
-----------
On this ____ day of March, 2000, before me, a Notary Public in and for
said county and state, personally appeared William T. Stackhouse, the Chief
Financial Officer of ADESA Corporation, an Indiana corporation, who acknowledged
that with due authorization, he did sign said instrument for and on behalf of
ADESA Corporation and that the same is his free act and deed individually as
such officer, and the free act and deed of ADESA Corporation.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year aforesaid.
Denise L. McAtee
----------------------------------------
Notary Public
[DENISE L. MC ATEE DENISE L. MC ATEE
NOTARY NOTARY PUBLIC STATE OF INDIANA
SEAL MARION COUNTY
STATE OF INDIANA] MY COMMISSION EXP. APR. 9, 2001
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