COLLATERAL ASSIGNMENT OF DOCUMENTS, RIGHTS AND CLAIMS
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THIS COLLATERAL ASSIGNMENT OF DOCUMENTS, RIGHTS AND CLAIMS (hereinafter
referred to as this "Assignment"), made as of the 12th day of January, 1999,
by WELLSFORD FINANCE, INC., a Maryland corporation ("Borrower"), to
BANKBOSTON, N.A., a national banking association, as Agent for itself, and
the other lending institutions (collectively, the "Lenders") which may become
parties to the Credit Agreement (as hereinafter defined) (in such capacity,
"Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Lenders have agreed to provide a revolving credit facility (the
"Loan") to Borrower pursuant to the Credit Agreement, which Loan is evidenced
by the Notes (as hereinafter defined); and
WHEREAS, as additional security for the Loan, Borrower desires to assign to
Agent, for the benefit of the Lenders, and grant to Agent, for the benefit of
the Lenders, a security interest in and to, all of Borrower's right, title,
equity and interest in and to the Collateral (as hereinafter defined);
NOW THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars
($10.00), the mutual covenants and promises herein contained, and other good
and valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Agent do hereby covenant and agree as follows:
ARTICLE ONE
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DEFINITIONS
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1.01 In addition to such other terms as are elsewhere defined herein, the
following terms shall have the following meanings, as used in this Assignment
and in any exhibits attached hereto, unless the context requires otherwise:
"Abbey Loan" shall mean that certain revolving credit loan evidenced by
the Abbey Loan Documents.
"Abbey Loan Documents" shall mean that certain Revolving Credit
Agreement between Morgan and the various entities named therein as
"Borrower" dated August 28, 1997, as amended by that certain Amendment to
Revolving Credit Agreement dated April 6, 1998 between Morgan and the
various entities named therein as "Borrower", and as further amended by that
certain Second Amendment to Revolving Credit Agreement dated December 23,
1998 between Morgan and the various entities named therein as "Borrower" and
such other documents described on Exhibit "B" attached hereto, and each
other document executed after the date hereof evidencing, securing or
otherwise relating to the transactions contemplated thereby, as the same may
be varied, extended, supplemented, consolidated, amended, replaced, renewed,
modified or restated.
"BKB" shall mean BankBoston, N.A., a national banking association.
"Assignment and Acceptance Agreement" shall mean that certain
Assignment and Acceptance Agreement between Borrower and Agent.
"Collateral" shall mean collectively, all of the Borrower's right,
title, equity and interest in and to:
(a) The participation agreements, participation certificates,
notes, deeds of trust, assignments, pledges, financing statements and other
documents and instruments described on Exhibit "A" attached hereto and made
a part hereof, including, without limitation, the Collateral Notes,
Collateral Participation Documents, Collateral Deeds of Trust, the
Collateral Security Documents and all rights and interests thereunder,
together with any and all amendments, modifications, consolidations,
replacements, renewals, restatements or supplements thereto; and
(b) All security for the indebtedness or other obligations
evidenced by the documents and instruments described in Section 1.01(a)
above, including without limitation the Property, and all liens, security
interests and title of Borrower with respect thereto; and
(c) All documents evidencing the documents and instruments
described in Section 1.01(a) above or any security therefor or guaranties
thereof, all title insurance (whether evidenced by policies, commitments or
otherwise) issued with respect to the Property and to any other security for
the documents and instruments described in Section 1.01(a) above, all
accounts, funds, participation interests, lockboxes, leases, books, files,
records, programs, ledger books, computer tapes arising from or created in
connection with such documents and instruments and all other instruments,
documents, agreements and writings now or hereafter executed by, in favor of
or for the benefit of Borrower or any prior holder of such documents and
instruments in connection with any of the foregoing, and all other documents
now or hereafter delivered or to be delivered to or for the benefit of
Borrower or any prior holder of such documents and instruments under the
documents and instruments described in Section 1.01(a) above (all of said
Collateral Notes, Collateral Participation Documents, Collateral Deeds of
Trust, Collateral Security Documents and other documents, policies,
instruments and agreements, and any and all additions, renewals, extensions,
amendments, modifications, consolidations, restatements or supplements
thereto of any of the foregoing, being hereinafter referred to collectively
as the "Collateral Documents"); and
(d) All payments of any kind or nature whatsoever, now or
hereafter due and to become due under the Collateral Documents, all
collections thereon and all other amounts paid thereunder, including without
limitation all prepayments under the Collateral Documents, and all other
cash and non-cash proceeds of the Collateral Documents, or of any other
collateral for the obligations of Obligor under the Collateral Documents and
on account of any claim, rights or choses in action against Obligor or
otherwise pursuant to the Collateral Documents held by Borrower; and
(e) All claims, rights and privileges obtained by Borrower in
connection with the making of the loan to the Woodlands Borrowers or the
purchase of the Junior Participation from Morgan evidenced by the Collateral
Documents, together with the Property and all other property described in
the Collateral Documents, and all the powers, options, privileges,
immunities, claims, actions and causes of action contained in or arising
from any of the foregoing;
(f) All present and future accounts, general intangibles,
contract rights, chattel paper or instruments arising out of or with respect
to any of the foregoing;
(g) Any and all renewals and extensions of any of the foregoing
and any and all replacements or substitutions for any of the foregoing; and
(h) All proceeds and products of the foregoing of every type.
"Collateral Deeds of Trust" shall mean collectively, the deeds of
trust, mortgages and deeds to secure debt described as item 4 and 8 on
Exhibit "A" attached hereto and made a part hereof as the same may now or
hereafter be modified, amended, extended, renewed, consolidated, restated or
supplemented.
"Collateral Notes" shall mean, collectively, the Commercial Company
Second Secured Term Loan Note and the Land Company Second Secured Term Loan
Note as the same may now or hereafter be modified, amended, extended,
renewed, consolidated, restated or supplemented.
"Collateral Participation Documents" shall mean, collectively, the
Participation Agreement, the Participation Certificate and the Abbey Loan
Documents.
"Collateral Security Documents" shall mean, collectively, the pledge
agreements, the stock pledge agreements, collateral assignments, credit
agreement and other instruments and documents described as items 1-16 on
Exhibit "A" attached hereto.
"Commercial Company Second Secured Term Loan Note" shall mean that
certain Commercial Company Second Secured Term Loan Note dated December 28,
1998 in the principal face amount of $4,186,991.87 by the Woodlands
Borrowers to the order of Borrower.
"Credit Agreement" shall mean the Revolving Credit Agreement dated of
even date herewith among Borrower, BKB, the other lending institutions which
may become parties thereto and Agent, as originally executed, or if varied,
extended, supplemented, consolidated, amended or restated from time to time
as so varied, extended, supplemented, consolidated, amended or restated.
"Default" shall mean any event which, with the giving of notice or the
lapse of time, or both, would become an Event of Default.
"Event of Default" shall mean (a) any default in the payment or
performance of the obligations of Borrower hereunder, or (b) any
representation or warranty of Borrower hereunder proving to be untrue in any
material respect upon the date when made or deemed to have been made or
repeated, or (c) any Event of Default under the Credit Agreement, or (d) any
default shall exist or an event which with the passage of time or the giving
of notice, or both, might constitute a default shall have occurred under the
Collateral Documents or the Abbey Loan Documents or any of them (there shall
be no right to cure an Event of Default under (d), above.)
"Junior Participation" shall have the meaning given such term in the
Participation Agreement.
"Land Company Second Secured Term Loan Note" shall mean that certain
Land Company Second Secured Term Loan Note dated December 28, 1998 in the
principal face amount of $10,813,008.13 made by the Woodlands Borrowers to
the order of Borrower.
"Loan Documents" shall have the meaning given to such term in the
Credit Agreement.
"Morgan" shall mean Morgan Guaranty Trust Company of New York, a New
York banking corporation.
"Notes" shall have the meaning given such term in the Credit Agreement.
"Obligations" shall mean:
(a) The debt evidenced by the Notes together with interest as
therein provided;
(b) The full and prompt and payment and performance of all of the
provisions, agreements, covenants and obligations contained in the Credit
Agreement;
(c) The full and prompt payment and performance of all of the
provisions, agreements, covenants and obligations herein contained and
contained in any other of the Loan Documents, and the payment of all other
sums therein covenanted to be paid; and
(d) Any and all additional advances made by Agent or any Lender
to protect or preserve the Collateral or the security interest created
hereby.
"Obligor" shall mean, individually and collectively, the Woodlands
Borrowers, Morgan, each respective obligor or payor under the Abbey Loan
Documents, and each respective obligor or payor under the other Collateral
Documents.
"Participation Agreement" shall mean that certain Loan Participation
Agreement dated as of August 28, 1997 between Morgan and Wellsford Real
Properties, Inc., ("WRP") as assigned to Wellsford Capital ("Capital"), as
amended by that certain First Amendment to Participation Agreement, dated
April 17, 1998 between Capital and Morgan, and as subsequently assigned to
Borrower, as the same may be varied, extended, supplemented, consolidated,
amended or restated from time to time.
"Participation Certificate" shall mean that certain Loan Participation
Certificate from Morgan to WRP, as assigned to Capital, as assigned to
Borrower which certifies the amount of the funds outstanding and unpaid
pursuant to the Participation Agreement.
"Property" shall mean the real and personal property encumbered by the
Collateral Documents and the Abbey Loan Documents.
"Woodlands Borrowers" shall mean collectively The Woodlands Commercial
Properties Company, L.P. and The Woodlands Land Development Company, L.P.
"Woodlands Credit Agreement" shall mean that certain First Amended and
Restated Master Credit Agreement dated as of December 30, 1997, effective as
of July 31, 1997 by and among the Woodlands Borrowers, BankBoston, N.A.,
individually and as Agent, Morgan Stanley Senior Funding, Inc. and the other
banks from time to time party thereto as originally executed, or if varied,
extended, supplemented, consolidated, amended or restated from time to time
as so varied, extended, supplemented, consolidated, amended or restated.
ARTICLE TWO
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ASSIGNMENT
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2.01 Assignment of, and Grant of Security Interest in, the Collateral. As
security for the full and prompt payment and performance by Borrower of the
Obligations, Borrower hereby transfers, assigns, pledges, conveys to, grants
a security interest in, and deposits with, Agent, for the benefit of Lenders,
the Collateral and all right, title, equity and interest of Borrower in and
to the Collateral. It is the intention of the parties hereto that Agent
shall have a continuing, general lien upon, security title to and security
interest in the Collateral for the benefit of Lenders.
2.02 Terms of Assignment. It is acknowledged and agreed by the parties
hereto that Agent shall have sole and exclusive possession of the Collateral
and that this Assignment constitutes a present and current assignment of all
the Collateral and is effective upon the execution and delivery hereof.
Payments under or with respect to the Collateral shall be made as follows:
(a) Except as hereinafter specifically set forth, Borrower shall have
no right to receive payments made under or with respect to the Collateral,
and all such payments shall be delivered directly by Obligor or any other
party liable thereon to Agent for the benefit of Lenders.
(b) If Borrower shall receive any payments made under or with respect
to the Collateral, Borrower shall hold all such payments in trust for Agent,
will not co-mingle such payments with other funds of Borrower, and will
immediately pay and deliver in kind, all such payments directly to Agent for
application by Agent and Lenders in satisfaction of the Obligations in such
order as Agent and Lenders shall determine in accordance with the applicable
provisions of the Credit Agreement.
(c) Borrower hereby agrees for the benefit of Obligor that all
payments actually received by Agent shall be deemed payments to Borrower by
Obligor. Agent and Lenders shall apply any and all such payments actually
received by Agent in satisfaction of the Obligations in such order as Agent
and Lenders shall determine in accordance with the applicable provisions of
the Credit Agreement. Agent shall return to Borrower that portion of any
payments actually received by Agent from Obligor which Agent determines, in
the exercise of its sole discretion, is not needed to repay the Obligations.
(d) In furtherance of the foregoing, Borrower does hereby notify and
direct Obligor that all payments under or with respect to the Collateral
shall be made directly to Agent at the address of Agent set forth in the
Credit Agreement.
Notwithstanding anything in this Section 2.02 to the contrary, so long as no
Event of Default has occurred, Borrower shall have a license (revocable upon
the occurrence of an Event of Default) to collect, but no more than one (1)
month prior to accrual, all amounts payable and to be applied as current
interest under the Collateral Notes or any other Collateral Document or
payments made by Morgan under the Participation Agreement with respect to
payments of interest under the Abbey Loan Documents; it being understood and
agreed that such license shall not extend to other amounts payable under the
Collateral Notes, the Collateral Participation Documents or other Collateral
Documents, including, without limitation, any voluntary or involuntary
payment of principal or amounts attributable to principal paid under the
Abbey Loan Documents.
ARTICLE THREE
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COVENANTS, REPRESENTATIONS AND WARRANTIES OF BORROWER
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Borrower hereby warrants and represents to, and covenants and agrees with,
Agent as follows:
3.01 Delivery of Collateral The original of each Collateral Note, endorsed
by Borrower, and the original of each Collateral Participation Document, has
been delivered to Agent. All actions required under any Collateral Note,
Collateral Participation Document or any other Collateral Document and
applicable law have been duly taken in order to constitute Borrower the
holder of the Collateral Notes, Collateral Participation Documents and the
Collateral Documents and to constitute Agent the holder of a first priority
security interest in each Collateral Note, Collateral Participation Document
and Collateral Document. None of the Collateral Notes, Collateral
Participation Documents, Collateral Deeds of Trust, Collateral Security
Documents and other Collateral Documents has been amended, modified,
consolidated, supplemented or replaced except as expressly described on
Exhibit "A" attached hereto.
3.02 Enforceability of This Assignment. This Assignment constitutes the
legal, valid and binding obligation of Borrower enforceable in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws generally affecting the rights of
creditors.
3.03 Right to Execute This Assignment. There are no restrictions on the
transfer of the Collateral, and Borrower has full right, power and authority
to enter into, deliver and execute this Assignment. The execution and
delivery of this Assignment, and the consummation of the transactions
contemplated herein, and the fulfillment of, and the compliance with, the
terms and conditions of this Assignment do not and will not (i) violate or
conflict with any of the terms or provisions of the Collateral; (ii) violate
any provision of any judicial or administrative order, award, judgment or
decree applicable to Borrower, the Collateral or the Property; or (iii)
conflict with, result in a breach of or a right to cancel, or constitute a
default under, the articles of incorporation or by-laws of Borrower, or any
agreement or instrument to which Borrower is a party or by which Borrower,
the Collateral or the Property is bound.
3.04 No Amendment of Collateral. Borrower shall not (i) make any additional
loans or advances which would be evidenced or secured by the Collateral Notes
and Collateral Deeds of Trust except for protective advances thereunder; or
(ii) make any additional loans or advances which would be evidenced or
secured by the Collateral Participation Documents except for advances
expressly required pursuant to the terms of the Participation Agreement, and
shall not abandon, alter, amend, cancel, modify, release, relinquish,
supplement, surrender, terminate or waive, and shall not enter into or give
any agreement, approval or consent with respect to, any of the Collateral or
any part thereof or any interest therein or any collateral for the
obligations evidenced by the Collateral Notes, Collateral Participation
Documents or other Collateral Documents, and any attempt to do so without the
prior written consent of Agent shall be void and ineffective.
3.05 Pending Litigation. There are no actions, suits or proceedings
pending, or to the knowledge of Borrower, threatened against or affecting
Borrower, Maker, the Collateral or the Property, or any of them at law or in
equity, or before or by any government authority.
3.06 No Defenses. The assignment of the Collateral pursuant to this
Assignment creates no defense to the payment thereof and is effective to
convey to Agent, for the benefit of Lenders, all rights of Borrower to
collect the Collateral.
3.07 Information About Collateral. The names, amounts owing, due dates and
other facts furnished to Agent with respect to any of the Collateral have
been and will be correctly stated. Borrower shall, immediately upon request
by Agent, execute and deliver to Agent a sworn affidavit setting forth in
detail any and all amounts or payments received by Borrower with respect to
the Collateral or any portion thereof during any period specified by Agent or
such other reports or information in such form and detail as Agent shall
request from time to time. Borrower shall promptly forward to Agent copies
of all financial or property information, loan documents, budgets, leases,
leasing reports, rent rolls, insurance certificates and policies, default
notices, acceleration notices and all other communications or information
received by Borrower or any agent or servicer for Borrower from Maker or from
any other party, or sent by Borrower or any agent or servicer for Borrower or
Morgan, relating to the Collateral and/or Maker and/or the Property. All
records of Borrower relative to the Collateral are and will be kept at the
office of Borrower located in New York County, New York. Borrower shall give
Agent not fewer than thirty (30) days prior written notice of any proposed
change in Borrower's name and any proposed change in the location of the
Collateral or of such records, and Borrower will not, without the prior
written consent of Agent, move the Collateral or such records to a location
outside of New York County, New York or keep duplicate records with respect
to the Collateral at any address outside such county. Nothing contained in
this subparagraph shall be construed so as to prevent Borrower from keeping
material abstracted from the books and records described herein at any of its
offices as necessity or convenience dictates.
3.08 Good Title. Borrower is and shall remain the sole, lawful and
beneficial owner of the Collateral free and clear of all liens, restrictions,
claims, pledges and encumbrances whatsoever and has the full and complete
right, power and authority to create a security interest in the Collateral in
favor of Agent in accordance with the terms and provisions of this
Assignment. The security interest in the Collateral created hereunder
constitutes and will at all times continue to constitute a valid and
enforceable first priority perfected security interest in the Collateral in
favor of Agent, free and clear of all liens, claims, encumbrances and rights
of others. Borrower has made no contract or arrangement of any kind or type
whatsoever (whether oral or written, formal or informal), the performance of
which by the other party thereto could give rise to a lien on the Collateral.
Borrower at all times will defend the Collateral and its proceeds against the
claims and demands of all third persons at any time claiming any interest in
the Collateral adverse to Agent's interest in the Collateral as granted
hereunder.
3.09 Status of the Collateral. The Collateral is valid and enforceable in
accordance with its terms, subject to insolvency, bankruptcy, moratorium and
other laws affecting creditors' rights generally, and is in compliance with
all applicable laws. The Collateral Documents create a valid, enforceable
and perfected first priority lien and security interest in all collateral
covered thereby, and the Borrower shall take such actions as are necessary
(including, without limitation, the filing of continuation statements) to
cause the Collateral Documents to remain a valid, enforceable and perfected
first priority lien and security interest therein.
3.10 No Future Encumbrance or Transfer. Borrower shall not encumber,
pledge, anticipate, borrow against, or create any right of offset against the
Collateral, and shall not transfer, assign, sell, dispose of, pledge, or
convey, option, mortgage, hypothecate or encumber all or any portion of the
Collateral.
3.11 Consents. Any and all consents required to be obtained in connection
with the execution, delivery and performance of this Assignment, including
without limitation any such consents required by the Participation Documents
or the other Collateral Documents, have been obtained. Without limiting the
generality of the foregoing, the execution, delivery and performance of all
obligations under this Assignment do not and will not require any
authorization, consent, approval, order, license or permit from, or filing,
registration, or qualification with, or exemption from any of the foregoing
from, any governmental agency or other person.
3.12 Perfection of Security Interest.
(a) For the purposes of Article 9-401 of the New York Uniform
Commercial Code, the principal place of business of Borrower is located in
New York County, New York. In the event that Borrower has more than one
place of business in the State of New York, its chief executive office is
located in New York County, New York. In order to perfect the pledge and
security interests granted herein against Borrower, U.C.C. Financing
Statements must be filed with Secretary of State of New York and the Office
of the Register of the City of New York, New York County.
(b) Borrower shall, at the request of Agent, execute, acknowledge, and
deliver all such further assignments, security agreements, financing
statements, endorsements, and assurances as Agent from time to time may
require for the better assuring, conveying, assigning and confirming to Agent
the Collateral and the rights hereby conveyed or assigned or intended now or
hereafter to be conveyed or assigned, and for carrying out the intention or
facilitating the performance of the terms of this Assignment, and upon any
failure by Borrower so to do, Agent may make, execute, record, file, rerecord
and/or refile, acknowledge and deliver any and all such further assignments,
security agreements, financing statements, endorsements and assurances for
and in the name of Borrower, and Borrower hereby irrevocably appoints Agent
the agent and attorney-in-fact with full power of substitutions of Borrower
so to do. This power is coupled with an interest. Without limiting the
generality of the foregoing, Borrower will obtain such waivers of lien,
estoppel certificates or subordination agreements as Lender may require to
insure the priority of its security interest in the Collateral. Borrower
also shall furnish to Agent such evidence as Agent reasonably may require
from time to time to confirm the value of the Collateral.
3.13 Collateral Compliance and Defense. Borrower shall remain liable and
comply with all obligations of Borrower under the Collateral and all other
contracts, agreements and instruments related thereto to the extent set forth
therein and to the same extent as if this Assignment had not been executed.
Borrower, at its sole cost and expense, shall defend any claims against the
Collateral or any action that might affect the Collateral or any interest
therein. The exercise by Agent of any of its rights hereunder shall not
release Maker from any of its duties or obligations under the Collateral or
any contracts, agreements and instruments related thereto.
3.14 Protecting Collateral. Borrower will, but only with the prior written
approval of Agent, diligently and in good faith do all things and take all
actions, including, without limitation, bringing appropriate actions against
any Maker which are necessary or desirable to enforce the obligations of such
Maker to make all payments under the Collateral Documents to which it is a
party, and to protect and preserve the interest of Agent under this
Assignment. Borrower shall pay all taxes and other charges against the
Collateral, shall not use the Property or the Collateral illegally, and shall
not suffer to exist any loss, theft, damage or destruction of the Property or
the Collateral or levy, seizure or attachment of the Property or the
Collateral.
3.15 Rights Under Participation Agreement. Borrower shall take all steps
necessary to preserve its rights to service the Abbey Loan pursuant to
paragraph 4 of the Participation Agreement and shall provide Agent with
evidence of same before Borrower's rights expire thereunder. Borrower shall
not propose a servicing plan or asset audit to Morgan with respect to the
Abbey Loan without the prior written approval of Agent. Borrower shall not
exercise any of its rights to service the Abbey Loan without the prior
written approval of Agent.
3.16 Borrower Conduct. Borrower has done no act or omitted to do any act
which might prevent Agent from, or limit Agent in, acting under any of the
provisions herein.
3.17 No Offset. The Collateral Notes and Collateral Participation Documents
evidence bona fide indebtedness or obligations owing to Borrower by Maker,
and no Maker has any rights to setoff, counterclaim or defenses with respect
to the payment or performance of any obligations under the Collateral
Documents.
3.18 No Event of Default Under Loan Documents. No Default or Event of
Default by Borrower or any other party exists under this Assignment, and no
event has occurred and is continuing which with notice or the passage of time
or both would constitute a Default or Event of Default hereunder or under any
of the other Loan Documents.
3.19 Custody of Collateral. Agent's duty with reference to the Collateral
shall be solely to use slight care in the custody and preservation of the
Collateral, which shall not include any steps necessary to preserve rights
against prior parties.
3.20 Related Documents. There are no documents or agreements which conflict
with or vary the terms of the Collateral Documents, and there are no other
documents which have not been delivered to Agent which affect or in any way
relate to the Collateral Documents.
3.21 No Maker Default. Each Maker is the sole obligor and grantor under the
Collateral to which it is a party as reflected on Exhibit "A" attached
hereto, and no event or circumstance has occurred which, with the passage of
time or the giving of notice, or both, might constitute a default under any
of the terms, covenants or conditions of the Collateral. In the event of a
default of any nature under the terms and conditions of the Collateral or the
Collateral Documents, Borrower shall promptly deliver to Agent written notice
of such default, which notice shall specify in reasonable detail the nature
of such default.
3.22 No Event of Default Under the Abbey Loan Documents. To the best of
Borrower's knowledge and belief, no Default or Event of Default exists under
any of the Abbey Loan Documents. In the event Borrower becomes aware of a
default of any nature under the terms and conditions of the Abbey Loan
Documents, Borrower shall promptly deliver to Agent written notice of such
default which notice shall specify in reasonable detail the nature of the
default.
3.23 No Prepayment. No prepayment (or with respect to the Junior
Participation, any payment attributable to the payment of principal under the
Abbey Loan Documents) with respect to the Collateral has been collected or
received by Borrower. No prepayment of the indebtedness or obligations
evidenced by the Collateral Documents will be collected or received by
Borrower without the prior written consent of Agent except for such
prepayment as may be expressly permitted by the terms of the Collateral
Documents.
3.24 Collateral Notes Indebtedness. As of the date hereof, the aggregate
unpaid principal balance of the Commercial Company Second Secured Term Loan
Note is $4,186,991.87, and the aggregate unpaid principal balance of the Land
Company Second Secured Term Loan Note is $10,813,008.13.
3.25 Abbey Loan Indebtedness. As of January 7, 1999, the aggregate
outstanding balance of the Abbey Loan is $92,038,700.00, and interest in the
amount of $135,607.22 has accrued and remains outstanding under the Abbey
Loan Documents.
3.26 Participation Interest. As of January 7, 1999, Borrower's
"Participation Percentage" (as defined in the Participation Agreement) is
fifty percent (50%), and the outstanding principal amount of the Junior
Participation is $46,019,350.00.
3.27 Re-Advance Amount. As of the date hereof, no amounts have been re-
advanced under the Abbey Loan Agreement within the meaning of Section 2.01(a)
thereof.
3.28 Other Participation Interests. No Bank Junior Participation (as
defined in the Participation Agreement) or Senior Default Interest (as
defined in the Participation Agreement) currently exist.
3.29 Modifications. Borrower shall not enter into any modification or
amendment of the Collateral Documents nor shall it consent to any
modification, amendment or waiver of the Abbey Loan Documents without
obtaining the prior written consent of Agent.
3.30 No Abbey Loan Encumbrances. Borrower shall not consent to the
transfer, assignment, sale, disposition of, pledge, conveyance, option,
mortgage, hypothecation or encumbrance of all or any portion of the property
secured by the Abbey Loan Documents without obtaining the prior written
consent of Agent.
3.31 Change in Collateral Value. Borrower shall promptly notify Agent of
any change in the "Collateral Value" (as defined in the Abbey Loan
Agreement).
3.32 Actions by Morgan. Borrower shall promptly notify Agent of any
actions, amendments or waivers contemplated by Morgan under the Abbey Loan
Documents and the Participation Agreement.
3.33 Additions; Substitutions. If Borrower shall at any time be entitled to
receive or shall receive any cash, certificate or other property, option or
right, upon, in respect of, as an addition to, or in substitution or exchange
for any of the Collateral or as a result of the exercise of any rights or
remedies under the Collateral Documents, whether for value paid by Borrower
or otherwise, Borrower agrees that the same shall be deemed to be Collateral
and shall be delivered directly to Agent in each case accompanied by proper
instruments of encumbrance or assignment (including without limitation a deed
of trust, mortgage or security deed) as reasonably required by Agent duly
executed by Borrower in such a form as may be required by Agent to be held by
Agent subject to the terms hereof, as further security for the Obligations
(except as otherwise provided herein with respect to the application of the
foregoing to the Obligations). If Borrower receives any of the foregoing
directly, Borrower agrees to hold such cash or other property in trust for
the benefit of Agent, and to surrender such cash or other property to Agent
immediately.
ARTICLE FOUR
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ACTION BY AGENT
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4.01 Action by Agent. Whether or not an Event of Default has occurred and
whether or not Agent is the absolute owner of the Collateral:
(a) Agent may take such action as Agent may deem necessary to protect
the Collateral or its security interest therein, Agent being hereby
authorized to pay, purchase, contest and compromise any encumbrance, charge
or lien which in the judgment of Agent appears to be prior or superior to
its security interest, and in exercising any such powers and authority to
pay necessary expenses, employ counsel and pay attorney's fees.
(b) Agent shall be under no duty or obligation to (i) preserve,
process, develop, maintain or protect the Collateral or any of Borrower's
rights or interests therein, or (ii) make or give any notices of default
(except as may be specifically required herein), presentments, demands for
performance, notices of non-performance or dishonor, protests, notices of
protests or notices of any other nature whatsoever in connection with the
Collateral on behalf of Borrower or any other person having any interest
therein; and Agent does not assume and shall not be obligated to perform the
obligations of Borrower, if any, with respect to the Collateral. Agent may,
at any time and from time to time, without notice or demand and at the
expense of Borrower, make requests for information concerning the Collateral
from any obligor thereon.
(c) Agent may, at its sole option, make advances to protect the
Collateral and its security therein, or for any reason for which Borrower is
permitted under the terms of the Collateral Documents to make advances, and
any such advances made by Agent shall be deemed advanced under the
Collateral Documents, increasing the indebtedness evidenced and secured
thereby, and also shall be deemed advances under the Loan Documents,
increasing the Obligations.
(d) Agent may at any time compromise, transfer and assign the
Collateral or any portion thereof and this Assignment.
(e) Agent shall have the right to attend any meetings or to be a party
to any conference calls or other communications between Borrower and Morgan
and/or the Obligors under the Abbey Loan Documents with respect to
Borrower's servicing rights under the Participation Agreement or actions to
be taken by Morgan pursuant to the Abbey Loan Documents, and Borrower agrees
that it shall give Agent not less than 48 hours prior notice of such
meetings, conference calls or other communications.
4.02 Default under the Participation Agreement. Notwithstanding anything
herein to the contrary, the Borrower hereby expressly agrees that any failure
to perform any of the covenants or obligations, or failure to exercise any
rights or take such actions necessary to permit Borrower to exercise such
rights, of Borrower under the Participation Agreement (collectively a
"Participation Default") shall constitute and be deemed to be an Event of
Default under this Agreement and the other Loan Documents for which no right
to cure shall be available. Without limiting the foregoing, a Participation
Default shall conclusively be deemed to have occurred upon the declaration,
statement or notice from Morgan as to the existence or occurrence of a
Participation Default. The Agent shall have the right, but not the
obligation, to pay any sums or to take any action which the Agent deems
necessary or advisable to cure any Participation Default (whether or not the
Borrower is undertaking efforts to cure such Participation Default or the
same is a Participation Default or Event of Default hereunder), and such
payment or such action is hereby authorized by the Borrower, and any sum so
paid and any expense incurred by the Agent in taking any such action shall be
evidenced and secured by this Agreement and shall be immediately due and
payable by Borrower to the Agent with interest at the rate for overdue
amounts set forth in Section 4.12 of the Credit Agreement until paid. The
Agent shall be authorized to take such actions upon the assertion by Morgan
of the existence of such Participation Default without any duty to inquire or
determine whether such Participation Default exists.
4.03 Relationship to Assignment and Acceptance Agreement. Borrower and
Agent acknowledge and agree that (i) the Assignment and Acceptance Agreement
is being executed pursuant to and in connection with this Assignment, and
(ii) upon the occurrence of an Event of Default, the Agent may insert the
effective date into the Assignment and Acceptance Agreement and deliver the
same to the "Agent" under the Woodlands Credit Agreement.
4.04 Attorney-In-Fact. Borrower hereby nominates and irrevocably designates
and appoints Agent its true and lawful agent and attorney-in-fact with full
power of substitution, which appointment is coupled with an interest either
in the name of Agent or in the name of Borrower, at Borrower's sole cost and
expense, to take any or all of the following actions:
(a) To do all acts and things and execute all documents which Agent
may deem necessary or advisable to perfect and continue perfected the
security interest created by this Assignment and to preserve, process,
develop, maintain and protect the Collateral and the value thereof and
Agent's interest therein, including, without limitation, preparing, signing,
filing and recording, for Borrower in Borrower's name, or for Borrower on
behalf of any Maker, any financing statement covering or constituting a
part of the Collateral;
(b) To do any and every act which Borrower is obligated to do under
this Assignment;
(c) Whether before or after the occurrence of an Event of Default, to
ask for, demand, sue for, attach, levy, settle, compromise, collect,
compound, recover, receive and give receipt and acquittances for any and all
sums owing or which may become due with respect to the Collateral; to
endorse, in the name of Borrower, all checks, notes, drafts, money orders,
evidences of payment, or other instruments received in payment of, or on
account of, the Collateral or any portion thereof; and to take any and all
actions as Agent may deem necessary or desirable in order to realize upon
the Collateral, or any portion thereof, including, without limitation,
making any statements and doing or taking any acts on behalf of Borrower
which are otherwise required of Borrower under the terms of the Collateral
or any portion thereof as conditions precedent to the payment of the
obligations evidenced by, or to the exercise of, the Collateral or any
portion thereof; and to exercise any rights and remedies available under the
Collateral Documents and to execute any document or instrument which Agent
may deem necessary or desirable in connection therewith, including
pleadings, consent orders, stipulations, and other documents and instruments
which Agent may deem necessary or desirable in connection with judicial or
nonjudicial foreclosure of the Collateral Deeds of Trust or any deed of
trust or other security agreement included within the Collateral Documents
or other legal actions or proceedings with respect to the Collateral. In
addition, Borrower hereby irrevocably designates and appoints Agent its true
and lawful attorney-in-fact with full power of substitution either in the
name of Agent or Borrower which power is coupled with an interest to (i)
sign Borrower's name on any Collateral, drafts against account debtors,
assignments, any proof of claim in any bankruptcy or other insolvency
proceeding involving any account debtor, any notice of lien, claim of lien
or assignment or satisfaction of lien, or on any financing statement or
continuation statement under the Uniform Commercial Code; (ii) send
verifications of accounts receivable to any account debtor; and (iii) in
connection with a transfer of the Collateral as described above sign in
Borrower's name any documents necessary to transfer title to the Collateral
to Agent or any third party.
(d) To endorse and transfer the Collateral upon foreclosure;
provided, however, that Agent shall be under no obligation whatsoever to take
any of the foregoing actions or to exercise any of the foregoing authority or
power, and Agent shall have no liability or responsibility for any act or
omission taken with respect thereto. All of said rights and powers may be
exercised by Agent at any time, whether or not an Event of Default has
occurred and whether or not Agent is the absolute owner of the Collateral.
The foregoing appointment of the Agent as Borrower's attorney-in-fact is
irrevocable, coupled with an interest, with full power of substitution and
cannot be revoked by insolvency, reorganization, merger, consolidation or
otherwise. All acts of said power of attorney are hereby ratified and
approved and Agent shall not be liable for any mistake of law or fact made in
connection therewith.
4.05 Necessity for Agent Action or Consent. So long as this Assignment
shall be held by Agent as security for the Obligations, (a) no approval,
consent, election, waiver or other matter which is given or required or
permitted to be given or which inures to the benefit of Borrower under the
Collateral Documents shall be deemed to have been given unless and until
given by Agent; (b) any matter which is to be established or determined to
the satisfaction of Borrower, or which is accepted or required to be accepted
by Borrower, shall not be deemed to have been so established, determined or
accepted unless and until so established, determined or accepted by Agent;
(c) any matter which is to be received by, delivered to, assigned to or held
by Borrower, including any notice to Borrower under the Collateral Documents,
shall be deemed to have been received, delivered, assigned or held only when
so received, delivered, assigned or held by or to Agent; (d) nothing
contained in any of the Collateral Documents may be modified, amended or
waived in any manner or respect whatsoever without the consent of Agent, and
any such attempted modification, amendment or waiver without such consent
shall be null and void; (e) no Collateral may be released without the
execution of the documentation of release by Agent, and any attempted release
without such execution by Agent shall be null and void; and (f) any exercise
of discretion or rights by Borrower, any requirements imposed or to be
imposed, or permitted to be imposed, by Borrower hereunder, shall be deemed
to have been exercised or imposed only when so exercised or imposed by Agent.
The rights of Agent under this section may be exercised by Agent solely at
the option of Agent or the Agent upon the direction of the Majority Lenders
(as defined in the Credit Agreement) in accordance with the Credit Agreement,
and Agent shall have no obligation to give any consent or take any other
action whatsoever contemplated hereby. Without implying any limitation upon
the scope of Section 7.01 hereof, it is specifically noted that the
provisions of Section 7.01 hereof apply, without limitation, to any action or
failure to act on the part of Lender with respect to the matters contemplated
by this Section 4.03.
ARTICLE FIVE
------------
ENFORCEMENT OF COLLATERAL DOCUMENTS
-----------------------------------
Borrower acknowledges and agrees that Agent at all times, whether or not an
Event of Default has occurred and whether or not Agent is the absolute owner
of the Collateral, shall have the right, but not the obligation, to exercise
and enforce, in its own name or in Borrower's name, any or all rights and
remedies of Borrower under the Collateral Documents to the exclusion of
Borrower, including but not limited to the right to inspect the Property, to
receive information and documents, to declare due the indebtedness secured by
the Collateral Documents upon the occurrence of a default thereunder, to
grant or withhold approvals, to service the Abbey Loan upon the occurrence of
an event of default thereunder and to exercise discretion with respect to any
matter. Borrower shall not exercise or attempt to exercise any such right or
remedy except at the written request of Agent and only in strict accordance
with the instructions of Agent. Agent may, at its option, enforce or conduct
any action for foreclosure (including nonjudicial foreclosure)under the
Collateral Documents in its own name or in the name of Borrower, and Borrower
specifically consents to any foreclosure (including nonjudicial foreclosure)
under any or all of the Collateral Documents or any other action taken by
Agent even though such action may release any person from personal liability
on any of the Collateral Documents. Upon the exercise by Agent of any such
remedies, any amount bid by Agent or any Lender at any sale of any of the
Property or any other Collateral for the Collateral Note or Collateral
Participation Documents may, at the option of Agent or such Lender, be deemed
to be a credit bid of the indebtedness evidenced by the Collateral Note or
the obligations payable under the Collateral Participation Documents and the
indebtedness evidenced by the Note, or either or both of them; Agent shall be
entitled to set off the amount of any such bid against any such indebtedness,
all at the election of Agent, in its sole discretion; and any or all proceeds
of the Collateral Note or Collateral Participation Documents may be applied
against the indebtedness evidenced by the Note in such order as Agent and the
Majority Banks shall elect in accordance with the Credit Agreement, and Agent
or any Lender shall hold any property obtained by Agent or such Lender at any
such sale free and clear of any interest or claims of Borrower, regardless of
whether Agent shall have exercised any remedy under this Assignment with
respect to any of the Collateral Documents, or shall have sold any of the
Collateral Documents or obtained absolute title thereto pursuant to its
rights and remedies under the Uniform Commercial Code. Borrower hereby
agrees to pay to Agent, immediately upon demand, all costs and expenses,
including without limitation attorney's fees, incurred by Agent in connection
with the enforcement or foreclosure of any Collateral Documents, with
interest from the date of expenditure at the rate for overdue payments
specified in the Credit Agreement, to the extent permitted by applicable
laws.
ARTICLE SIX
-----------
REMEDIES
--------
6.01 Remedies. Upon the occurrence of any Event of Default, without
prejudice to the rights of Agent to enforce claims against Borrower for
damages for failure to fulfill any of its obligations under any of the Loan
Documents, Agent, for the benefit of the Lenders, shall have, in addition to
all other rights and remedies that Agent may have under this Assignment and
by law, all of the rights and remedies hereinafter set forth, and it may
exercise without further notice to Borrower, except as may be specifically
required herein or in the other Loan Documents, any action deemed by Agent to
be necessary or appropriate to the enforcement of the rights and remedies of
Agent under the Assignment and the Loan Documents, including the exercise of
any one, more, or all of the following remedies, in its sole discretion,
without thereby waiving any of the others:
(a) Agent shall have the right immediately to exercise all of its
rights and remedies provided under the Notes, and any of the other Loan
Documents.
(b) Agent shall have the right to collect and to continue to collect
all payments on the Collateral; to renew, extend, modify, amend, accelerate,
accept partial payments on, make allowances and adjustments and issue
credits with respect to, release, settle, compromise, compound, collect or
otherwise liquidate, on terms acceptable to Agent, in whole or in part, the
Collateral and any amounts owing thereon or any guaranty or security
therefor; to enter into any other agreement relating to or affecting the
Collateral; to give all consents, waivers and ratifications in respect of
the Collateral and exercise all other rights, powers and remedies and
otherwise act with respect thereto as if it were the owner thereof; and to
enforce payments and prosecute any action or proceeding with respect to any
and all of the Collateral and take or bring, in Agent's name or in the name
of Borrower, all steps, actions, suits or proceedings deemed by Agent
necessary or desirable to affect collection of or to realize upon the
Collateral.
(c) Agent shall have all of the rights and remedies of a secured party
under the Uniform Commercial Code as in effect at that time, including,
without limitation, the right to take possession of any of the Collateral,
and to sell or otherwise dispose of the same.
(d) Agent shall have all of the rights and remedies of a lender under
applicable general or statutory law.
(e) Agent shall have the right to foreclose the liens and security
interests created under this Assignment or under any other agreement
relating to the Collateral by any available judicial procedure or without
judicial process; and to sell, assign, lease or otherwise dispose of the
Collateral or any part thereof, either at public or private sale, in lots or
in bulk, for cash, on credit or for future delivery, or otherwise, with or
without representations or warranties, and upon such terms as shall be
acceptable to Agent in its sole discretion.
6.02 Sale of Collateral. In the event Agent shall determine to sell the
Collateral or any portion thereof, any such sale shall be held at such time
or times and at such place or places as Agent may determine in the exercise
of its sole discretion. Agent or any Lender may bid (which bid may be, in
whole or in part, in the form of cancellation of Obligations) for and
purchase for the account of Agent or such Lender or any nominee of Agent or
such Lender the whole or any part of the Collateral. In the event that Agent
or a Lender is the successful bidder at any public or private sale of the
Collateral or any portion thereof, the amount bid by Agent or such Lender may
be credited against the obligations as provided in Section 6.03. Agent shall
not be obligated to make any sale of the Collateral if it shall determine not
to do so regardless of the fact that notice of sale of the Collateral may
have been given. Agent may, without notice or publication, adjourn any
public sale from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and
place to which the same was so adjourned. Any requirement of sending
reasonable notice to Borrower, including, but not limited to, notice of the
intended disposition of all or any portion of the Collateral, shall be deemed
met if such notice is given to Borrower pursuant to the Credit Agreement at
least ten (10) days before such disposition. Upon consummation of any sale
of the Collateral, Agent shall have the right to assign, transfer and deliver
to the purchaser or purchasers thereof the Collateral so sold. Each such
purchaser at any such sale shall hold the Collateral sold absolutely free
from claim or right on the part of Borrower, and Borrower hereby waives to
the extent permitted by law all rights of redemption, stay and appraisal
which it now has or may at any time in the future have under any rule of law
or statute now existing or hereafter enacted.
6.03 Application of Net Proceeds. The net cash proceeds resulting from the
collection, liquidation, sale, lease or other disposition of the Collateral
shall be applied to the payment and satisfaction, pro tanto, of the
Obligations as provided in the Credit Agreement.
6.04 No Limitation of Remedies. No remedy conferred upon or reserved to
Agent herein or in any of the Loan Documents or in the Collateral is intended
to be exclusive of any other remedy conferred upon or reserved to Agent under
such instruments or under any applicable laws. Each such remedy shall be
cumulative and concurrent and shall be in addition to each and every other
remedy now or hereafter existing under such instruments or at law or in
equity. No delay or omission by Agent to exercise any right, power or remedy
provided in this Assignment, the Note, or the other Loan Documents or
otherwise accruing upon any Event of Default shall impair in any manner any
such right, power or remedy, or shall be construed to be a waiver of any such
default or acquiescence therein, and each and every right, power and remedy
of Agent may be exercised from time as often as may be deemed expedient by
Agent.
6.05 Rights Independent; Adequacy of Collateral. The security interest
created hereunder is independent of any other security for the Obligations or
the obligations of any other party or any guarantor, and upon the occurrence
of an Event of Default hereunder, Agent may proceed in the enforcement hereof
independently of any other right or remedy that Agent may at any time hold
with respect to the Obligations or any other security or guaranty therefor.
Agent may file a separate action or actions against Borrower hereunder,
whether action is brought and prosecuted with respect to any other security
or against any other party or any guarantor, or whether any other party or
any guarantor is joined in any such action or actions.
6.06 Performance of Borrower's Obligations. If Borrower fails to perform
any agreement or covenant contained in this Assignment beyond any applicable
period for notice and cure, Agent may itself perform, or cause to be
performed, any agreement or covenant of Borrower contained in this Assignment
which Borrower shall fail to perform, and the cost of such performance,
together with any reasonable expenses, including reasonable attorneys' fees
actually incurred (including attorneys' fees incurred in any appeal) by Agent
in connection therewith, shall be payable by Borrower upon demand and shall
constitute a part of the Obligations and shall bear interest at the rate for
overdue amounts as set forth in the Credit Agreement.
ARTICLE SEVEN
--------------
GENERAL CONDITIONS
------------------
7.01 Indemnification. It is specifically understood and agreed that this
Assignment shall not operate to place any responsibility or obligation
whatsoever upon Agent, and that in accepting this Assignment, Agent neither
assumes nor agrees to perform at any time whatsoever any obligation or duty
of Borrower with respect to the Collateral, all of which obligations and
duties shall be and remain with and upon Borrower. In furtherance of this
Assignment, Borrower has delivered the Assignment and Acceptance Agreement to
Agent, and it is specifically understood that in accepting the Assignment and
Acceptance Agreement, Agent neither assumes nor agrees to perform any
obligation or duty of Borrower with respect to the Assignment and Acceptance
Agreement unless and until Agent exercises its rights pursuant to Section
4.03 of this Assignment. Borrower agrees to release, indemnify, defend and
to hold harmless, and does hereby release, indemnify, defend and hold
harmless, Agent and Lenders from and against any and all liabilities,
obligations, claims, damages, penalties, causes of action, costs and expenses
(including, without limitation, attorneys fees and expenses) imposed upon or
incurred by Agent or any Lender by reason of this Assignment and any claim
and demand whatsoever which may be asserted against Agent by reason of any
alleged obligation or undertaking to be performed or discharged by Agent
under or by reason of this Assignment. In the event Agent or any Lender
incurs any such liability, obligation, claim, damage, penalty, costs or
expenses under or by reason of this Assignment, or in the defense of any
claims or demands arising out of or in connection with this Assignment, the
amount of such liability, obligation, claim, damage, penalty, cost or expense
shall be added to the Obligations, shall bear interest at the rate for
overdue payments specified in the Credit Agreement from the date incurred
until paid and shall be due and payable immediately upon demand.
7.02 Further Assurances. Borrower agrees to do such further acts and
things, and to execute and deliver such additional conveyances, assignments,
agreements, documents and instruments as Agent may at any time request in
connection with the administration or enforcement of this Assignment or
related to the Collateral or any part thereof or in order to better assure
and confirm unto Agent its rights, powers and remedies hereunder. Without
limiting the generality of the foregoing, at any time and from time to time,
upon request by Agent, Borrower will make, execute and deliver, or cause to
be made, executed and delivered, to Agent and, where appropriate, cause to be
recorded and/or filed and from time to time thereafter to be re-recorded
and/or refiled at such time and in such offices and places as shall be deemed
desirable by Agent, any and all such other and further assignments,
endorsements, deeds to secure debt, mortgages, deeds of trust, security
agreements, financing statements, continuation statements, instruments of
further assurance, certificates and other documents as may, in the opinion of
Agent, be necessary or desirable in order to effectuate, complete, or
perfect, or to continue and preserve (a) the obligations of Borrower under
this Assignment and (b) the security interest created by this Assignment as a
first and prior security interest upon the Collateral. Upon any failure by
Borrower so to do, Agent may make, execute, record, file, re-record and/or
refile any and all such assignments, endorsements, deeds to secure debt,
mortgages, deeds of trust, security agreements, financing statements,
continuation statements, instruments, certificates, and documents for and in
the name of Borrower, and Borrower hereby irrevocably appoints Agent the
agent and attorney-in-fact with full power of substitution of Borrower so to
do. This power is coupled with an interest.
7.03 Expenses and Costs of Agent. Borrower agrees to pay to Agent all
advances, charges, costs and expenses, including all reasonable attorney's
fees, incurred or paid by Agent in exercising any right, power or remedy
conferred by this Assignment, or in the enforcement thereof, whether or not
an action is filed hereon, together with interest from the date of the
expenditure at the rate for overdue payments specified in the Credit
Agreement, to the extent permitted by applicable law, it being specifically
understood and agreed by Borrower that all such advances, charges, costs and
expenses shall constitute Obligations.
7.04 Release of Collateral and Termination. Upon the payment and
satisfaction in full of the Obligations and the termination of the obligation
of the Lenders to make further advances to Borrower under the Credit
Agreement, Agent, upon receipt of written request therefor from Borrower and
at Borrower's expense, shall execute and deliver to Borrower such documents
as may be necessary to release the liens and interests on the Collateral
created by this Assignment.
7.05 Security Interest Absolute. All rights of Agent, and the security
interests hereunder, and all of the obligations secured hereby, shall be
absolute and unconditional, irrespective of:
(a) Any lack of validity or enforceability of the Loan Documents or
any other agreement or instrument relating thereto;
(b) Any change in the time (including the extension of the maturity
date of the Notes), manner or place of payment of, or in any other term of,
all or any of the Obligations or any other amendment or waiver of or any
consent to any departure from the Loan Documents;
(c) Any exchange, release or nonperfection of any other collateral for
the Obligations, or any release or amendment or waiver of or consent to
departure from any of the Loan Documents with respect to all or any part of
the Obligations; or
(d) Any other circumstance (other than payment of the Obligations in
full) that might otherwise constitute a defense available to, or a discharge
of, Borrower or any third party for the Obligations or any part thereof.
7.06 Amendments and Waivers. No amendment or waiver of any provision of
this Assignment nor consent to any departure therefrom shall in any event be
effective unless the same shall be in writing and signed by Agent, and then
such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given. No delay or omission of Agent to
exercise any right, power or remedy accruing upon any Event of Default shall
exhaust or impair any such right, power or remedy or shall be construed to be
a waiver of any such Event of Default, or acquiescence therein; and every
right, power and remedy given by this Assignment to Agent may be exercised
from time to time and as often as may be deemed expedient by Agent. Failure
on the part of Agent to complain of any act or failure to act which
constitutes an Event of Default, irrespective of how long such failure
continues, shall not constitute a waiver by Agent of Agent's rights hereunder
or impair any rights, powers or remedies consequent on any Event of Default.
Borrower hereby waives to the extent permitted by law all rights which
Borrower has or may have under and by virtue of the Uniform Commercial Code
as enacted in the State of New York, and any federal, state, county or
municipal statute, regulation, ordinance, Constitution or charter, now or
hereafter existing, similar in effect thereto providing any right of Borrower
to notice and to a judicial hearing prior to seizure by Agent of any of the
Collateral. Borrower hereby waives and renounces for itself, its heirs,
successors and assigns, all rights to the benefits of any statute of
limitations and any moratorium, reinstatement, marshaling, forbearance,
valuation, stay, extension, homestead, redemption and appraisement now
provided or which may hereafter be provided by the Constitution and laws of
the United States and of any state thereof, both as to itself and in and to
all of its property, real and personal, against the enforcement of this
Agreement and the collection of any of the Obligations.
7.07 Survival of Certain Agreements. Notwithstanding the repayment of the
Obligations and the cancellation or transfer of the Loan Documents, or any
foreclosure of or other realization upon the Collateral, the agreement of
Borrower contained herein or in any of the other Loan Documents to pay the
costs and expenses of Agent or the Lenders in connection with the Loan and
all agreements of Borrower contained herein or in any of the other Loan
Documents to indemnify and/or hold harmless Agent or the Lenders shall
continue in full force and effect so long as there exists any possibility of
expense or liability on the part of Agent or the Lenders.
7.08 Law Governing. THIS ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED
UNDER THE LAWS OF THE STATE OF NEW YORK.
7.09 Communications. All communications required or permitted under the
terms of this Agreement shall be given in the manner set forth in the Credit
Agreement.
7.10 Incorporation. The following provisions of the Credit Agreement are
hereby incorporated by reference as though fully set forth herein: Sections
22, 27, 28, 29 and 30.
IN WITNESS WHEREOF, Borrower has executed this Assignment under seal, as of
the day and year first above written.
WELLSFORD FINANCE, INC.,
a Maryland corporation
By: /s/ Gregory F. Hughes
--------------------------------
Name: Gregory F. Hughes
Title: Vice President and
Treasurer
[CORPORATE SEAL]
WITNESS:
The undersigned has executed this Collateral Assignment solely for the
purpose of witnessing the grant of power of attorney by Borrower to Agent, as
described in this Collateral Assignment.
Kim B. Ezzy
-------------------------------------
Print Name
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 11th day of
January, 1999, by GREGORY F. HUGHES, as Treasurer, of Wellsford Finance,
Inc., a Maryland corporation.
WITNESS MY HAND and official seal.
My commission expires:
/s/ Kevin A. Carey
---------------------------------
Notary Public
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 11th day of
January, 1999, by KIM B. EZZY.
WITNESS MY HAND and official seal.
My commission expires:
/s/ Kevin A. Carey
----------------------------------
Notary Public
EXHIBIT "A"
COLLATERAL DOCUMENTS
--------------------
1. First Amended and Restated Master Credit Agreement dated December 30,
1997, effective as of July 31, 1997, among The Woodlands Commercial
Properties Company, L.P. ("Commercial Company"), The Woodlands Land
Development Company, L.P. ("Land Company"), and BankBoston, N.A.,
individually and as Agent ("Agent"), Morgan Stanley Senior Funding,
Inc., as Documentation Agent, and the other lending institutions which
may now be or hereafter become parties thereto.
2. Commercial Company Second Secured Term Loan Note dated December 28,
1998 made by Commercial Company and Land Company to the order of
Wellsford Finance, Inc. ("Borrower").
3. Land Company Second Secured Term Note dated December 28, 1998 made by
Commercial Company and Land Company to the order of Borrower.
4. Deed of Trust and Security Agreement dated as of July 31, 1997 by
Commercial Company for the benefit of Agent.
5. Assignment of Leases and Rents dated as of July 31, 1997 by Commercial
Company to Agent.
6. Collateral Assignment of Interests dated as of July 31, 1997 by
Commercial Company in favor of Agent.
7. Assignment of Deed of Trust and Security Agreement and other Collateral
Documents dated as of December 30, 1997 by BankBoston, N.A., as Agent
and BankBoston, N.A., as Agent.
8. First Amendment to Deed of Trust and Security Agreement and certain
other Collateral Documents dated December 30, 1997 by and between
Commercial Company, Land Company and Agent.
9. Amended and Restated Cash Collateral Account Agreement dated as of
December 30, 1997, effective as of July 31, 1997 by and among
Commercial Company, Land Company and Agent.
10. Amended and Restated Collateral Assignment of Documents dated
December 30, 1997 by Commercial Company and Land Company to Agent.
11. Collateral Assignment of Documents dated December 30, 1997 by
Commercial Company and Land Company to Agent.
12. Amended and Restated Indemnity Agreement Regarding Hazardous Materials
dated December 30, 1997 by Commercial Company and Land Company for the
benefit of Agent.
13. Amended and Restated Agreement Regarding Negative Pledge dated
December 30, 1997 by Crescent Real Estate Equities Limited Partnership,
The Morgan Stanley Real Estate Fund II, L.P. and Crescent Operating,
Inc. in favor of Agent.
14. Intercreditor Agreement dated December 30, 1997 effective as of
July 31, 1997 by and between BankBoston, N.A., for itself and as Agent,
Morgan Stanley Senior Funding Inc., and the other lenders a party
thereto.
15. UCC-1 Financing Statement naming The Woodlands Land Development
Company, L.P. as Debtor and BankBoston, N.A., as Agent, as secured
party filed with Texas Secretary of State.
16. UCC-1 Financing Statement naming The Woodlands Land Development
Company, L.P. as Debtor and BankBoston, N.A., as Agent, as secured
party filed with Tarrant County, Texas Clerk.
17. Loan Participation Agreement dated as of August 28, 1997 between Morgan
Guaranty Trust Company of New York ("Morgan") and Wellsford Real
Properties, Inc. ("WRP").
18. Assignment and Acceptance Agreement dated March 27, 1998, between WRP
and Wellsford Capital ("Capital").
19. First Amendment to Participation Agreement, dated April 7, 1998,
between Capital and Morgan.
20. Assignment and Acceptance Agreement dated December 28, 1998, between
Capital and Borrower.
21. Loan Participation Certificate dated December 28, 1998 from Morgan to
WRP.
All rights, remedies, collateral instruments or other documents made or
granted in favor of Borrower or its predecessors in interest in connection
with the loans evidenced by the Loan Agreement described in Item 1, above,
and the Participation Agreement described in Item 17, above and secured by
the documents described in Items 2-16 and 18-21 above, (collectively the
"Loans"), including, without limitation: (i) all guaranties, pledges,
security interests, mortgages, deeds of trust, assignments of rents,
assignments of management agreement, assignments of stock or partnership
units, financing statements, or other rights, interests or collateral
securing or guaranteeing payment of such Loans; and (ii) all other rights and
remedies of the Borrower in connection with the Loans, whether provided by
contract or otherwise available under applicable law or in equity, including,
without limitation, all rights and remedies provided under any loan
agreements, security agreements, indemnities, letters of credit, title
insurance policies, fire and casualty insurance policies, flood hazard
insurance policies, life insurance policies, escrow, accounts, certificates
of deposit, proceeds, claims (including proofs of claim), demands, causes of
action and judgments in favor of Borrower or its predecessors in interest
relating to the Loans, or other instruments or documents made, issued or
delivered to or in favor of Borrower or its predecessors in interest in
connection with the Loans, all as the same may have been amended from time to
time.
EXHIBIT "B"
ABBEY LOAN DOCUMENTS
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