HomeMy WebLinkAboutASSGINMENT OF DEVELOPMENT AGREEMENT 22. 2 2- ,
ASSIGNMENT OF DEVELOPMENT AGREEMENT
This Assignment is made as of this 1st day of November, 2001, by and between Orono
Senior Housing,LLC,a Minnesota limited liability company(the"Company"),and U.S.Bank
Trust National Association (the "Trustee").
Recitals
The City of Orono, Minnesota(the "City"), pursuant to an Indenture of Trust, dated as
of November 1, 2001, between the City and the Trustee (the "Indenture"), will issue a series of
revenue bonds in the aggregate principal amount of$ to be designated "City of
Orono, Minnesota Senior Housing Revenue Bonds (Orono Woods Apartment Project), Series
2001 A"(the"Series 2001A Bonds");a series of taxable revenue bonds in the aggregate principal
amount of$ on a parity basis with the Series 2001A Bonds to be designated"City
of Orono, Minnesota Senior Housing Revenue Bonds (Orono Woods Apartment Project),
Taxable Series 2001B" (the "Series 2001B Bonds", and together with the Series 2001A Bonds,
the"Senior Bonds");and a series of subordinate revenue bonds in the aggregate principal amount
of$ to be designated"City of Orono,Minnesota Senior Housing Revenue Bonds
(Orono Woods Apartment Project), Subordinate Series 2001C" (the "Subordinate Bonds", and
together with the Senior Bonds, the "Series 2001 Bonds"). The City has agreed to loan the
proceeds thereof to the Company pursuant to a Loan Agreement, dated as of November 1,2001,
between the City and the Company(the"Loan Agreement"),to finance,among other things,the
development, acquisition, construction and equipping of the Project as defined in the Loan
Agreement. The Company will pay amounts due under the Loan Agreement and on the Bonds
in accordance with the terms of the Loan Agreement.
To secure payment of the Senior Bonds, the Company will execute and deliver to the
Trustee, a Combination Mortgage Security Agreement, Fixture Financing Statement and
Assignment of Leases and Rents, dated as of November 1, 2001, covering certain property
which, among other things, includes the real estate upon which the Project will be located(the
"Land") and the buildings, improvements and fixtures now or hereafter located thereon (the
"Mortgage"). To secure payment of the Subordinate Bonds, the Company will execute and
deliver to the Trustee, a Subordinate Combination Mortgage Security Agreement, Fixture
Financing Statement and Assignment of Leases and Rents, dated as of November 1, 2001,
covering the Land and the buildings,improvements and fixtures now or hereafter located thereon
(the "Subordinate Mortgage")
In order to sell the Bonds,the underwriter of the Bonds(the"Underwriter")has required,
as a condition to purchasing the Bonds, the execution hereof by the Company and the
acknowledgment hereof and consent hereto by Dunbar Development Corporation, a Minnesota
limited partnership (the "Developer").
ACCORDINGLY, in consideration of the foregoing, the Company does hereby assign
to the Trustee all of its right, title and interest in and to a Development Agreement, dated as of
November 1, 2001,between the Company and the Developer providing for the completion and
development of the Project(the "Development Agreement").
The Company agrees that the Trustee does not assume any of the obligations or duties of
the Company under or with respect to the Development Agreement(the "Obligations") unless
and until the Trustee shall have given the Developer written notice that it has affirmatively
exercised its right to assume the Obligations following the occurrence of an Event of Default
under the Loan Agreement, the Indenture, the Mortgage or the Subordinate Mortgage. In the
event that the Trustee does not undertake to assume the Obligations, the Trustee shall have no
liability whatsoever for the performance of any of the Obligations.
The Company represents and warrants that there have been no prior assignments of the
Development Agreement, that the Development Agreement is a valid, enforceable agreement,
that none of the parties thereto are in default thereunder and that all covenants, conditions and
agreements have been performed as required therein,except those not due to be performed until
after the date hereof. The Company agrees that no change in the terms in the Development
Agreement shall be valid without the written approval of the Trustee. The Company agrees not
to assign, sell, pledge, mortgage or otherwise transfer or encumber its interest in the
Development Agreement so long as this Assignment is in effect.
The Company hereby irrevocably appoints the Trustee as its attorney-in-fact to demand,
receive,and enforce the Company's rights with respect to the Development Agreement,to make
payments thereunder and give appropriate receipts, releases and satisfactions for and on behalf
of and in the name of the Company or, at the option of the Trustee in the name of the Trustee,
with the same force and effect as the Company could do if this Assignment had not been made.
This Assignment shall constitute a perfected, absolute and present assignment provided
that the Trustee shall have no right under this Assignment to enforce the provisions of the
Development Agreement until an Event of Default shall occur under the Loan Agreement, the
Indenture,the Mortgage or the Subordinate Mortgage. Upon the occurrence of any such default
or Event of Default,the Trustee may,without affecting any of its rights or remedies against the
Company under any other instrument, document or agreement, exercise its rights under this
Assignment as the Company's attorney-in-fact in any manner permitted by law,and in addition,
rights and remedies available after default to a secured party under the Uniform Commercial
Code,as adopted in the State of Minnesota. If notice to the Company of any intended disposition
of the collateral or any other intended action is required by law in a particular instance, such
notice shall be deemed commercially reasonable if given at least ten days prior to the date of
intended disposition or other action.
The Company hereby agrees to pay all costs and expenses (including without limitation
reasonable attorneys' fees)that the Trustee may incur in exercising any of its rights under this
Assignment.
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Subject to the aforesaid limitation on further assignment by the Company, this
Assignment shall be binding upon the Company and its successors and assigns, and shall inure
to the benefit of the Trustee and its successors and assigns. The Trustee may assign its rights
under this Assignment without the consent of the Company or the Developer. However,neither
the Company nor the Developer may assign either of their obligations or rights under the
Development Agreement or under this Assignment without the prior written consent of the
Trustee.
This Assignment can be waived, modified, amended, terminated or discharged only
explicitly in a writing signed by the Trustee. A waiver signed by the Trustee shall be effective
only in a specific instance and for the specific purpose given. Mere delay or failure to act shall
not preclude the exercise or enforcement of any of the Trustee's rights or remedies hereunder.
All rights and remedies of the Trustee shall be cumulative and may be exercised singularly or
concurrently, at the Trustee's option, and the exercise or enforcement of any one such right or
remedy shall neither be a condition to, nor bar the exercise or enforcement of, any other.
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IN WITNESS WHEREOF,the Company has executed this Assignment as of the day and
year first above written.
ORONO SENIOR HOUSING,LLC
By
Its
[Signature Page to Assignment of Development Agreement]
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DEVELOPER'S ACKNOWLEDGMENT AND CONSENT
In consideration of the Underwriter's purchase of the Bonds issued to finance the Project
as described in the foregoing Assignment, the undersigned Developer hereby consents to the
assignment of the Development Agreement to the Trustee and acknowledges and agrees with the
Trustee as follows. Any capitalized term used but not defined herein,has the meaning assigned
such term in the above Assignment, unless otherwise noted.
1 The Developer has entered into the Development Agreement,whereby the
Developer has agreed to complete and develop the Project for the Company.
2 The Development Agreement is in full force and effect, has not been
modified or assigned and no event has occurred or failed to occur as of the date hereof which but
for the passage of time, the giving of notice or both, would be a default thereunder.
3 Upon the occurrence of an Event of Default under the Loan Agreement,
the Indenture, the Mortgage or the Subordinate Mortgage,the Developer shall, at the Trustee's
written request,continue performance on the Trustee's behalf under the Development Agreement
in accordance with the terms thereof, provided that the Trustee assumes all of the Company's
payment obligations under the Development Agreement; provided further, that the Company
shall not be released from liability under the Development Agreement. The Trustee's
assumption of the Company's payment obligations shall be preceded and evidenced by at least
three (3) days' prior written notice to the Developer and the Developer may deal with the
Company as the "owner" of the Project until the Developer has received said written notice. In
no event shall the Trustee have any rights to direct the Developer as owner until the Trustee has
given the written notice provided for in this paragraph 3 and until such time the Company may
exercise the rights as owner.
4 Upon the assumption by the Trustee of all of the Obligations,the Trustee
may enforce the obligations of the Developer under the Development Agreement with the same
force and effect as if enforced by the Company and may perform the Obligations, and the
Developer will accept such performance in lieu of performance by the Company in satisfaction
of the Obligations. Notwithstanding the foregoing, the Developer does not waive any claims
against the Company under the Development Agreement.
5 The Developer will give the Trustee a copy of any written notice of default
given by the Developer to the Company under the Development Agreement.
6 The Developer will not terminate the Development Agreement on account
of any default of the Company thereunder without written notice of such default to the Trustee
and providing the Trustee thirty (30) days to cure the default or to assume the payment
obligations of the Company under the Development Agreement. In the event the Trustee so
elects to cure any such default or to assume the payment obligations of the Company under the
Development Agreement, the Developer will not terminate the Development Agreement.
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, However,nothing herein shall require the Trustee to cure any default of the Company under the
Development Agreement.
7 The officer signing this consent on behalf ofthe Developer hereby certifies
that the Developer has full power under all state and local laws and regulations to perform all
of its obligations under the Development Agreement in accordance with the terms thereof and
that the Developer will comply with all applicable laws and regulations,local, state and federal,
in performing such obligations.
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Dated: November , 2001
DUNBAR DEVELOPMENT CORPORATION
By:
Its:
[Signature Page to Developer's Acknowledgment and Consent]
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