ASSIGNMENT OF REDEVELOPMENT AGREEMENT
THIS ASSIGNMENT OF REDEVELOPMENT AGREEMENT dated May _____, 2013, is made and executed between 900 New Hampshire, LLC, a Kansas limited liability company (“Assignor”); and INTRUST Bank, N.A., a national banking association (“Lender”).
1. THE LOAN. Assignor has requested Lender to provide a Loan in the principal amount of $13,000,000.00 (the “Loan”) for the construction of a project at 900 New Hampshire, Lawrence, Douglas County, Kansas, which is further described in the Construction Loan Agreement of even date herewith.
2. ASSIGNMENT OF CONTRACT. To secure the Loan, in part, Assignor hereby grants, transfers, and assigns to Lender and grants a security interest in all of Assignor’s present and future rights, title and interest in and to the following: “Ninth & New Hampshire Tax Increment Financing District Redevelopment Agreement for the South Project Area” by an between the City of Lawrence, Kansas (the “City”), and 900 New Hampshire, LLC, dated as of November 30, 2012 (the “Redevelopment Agreement”).
3. CONSENT TO TRANSFER. Assignor agrees and understands that Lender, whether now or later, may sell or transfer the Loan or sell one or more participation interests in the Loan to one or more purchasers, whether related or unrelated to Lender. Assignor agrees that the purchaser(s) of the Loan or any interests in the Loan will be considered as the absolute owners of such Loan or interests, and will have all the rights granted under this Assignment.
4. LENDER’S RIGHTS. Assignor represents and warrants with respect to the Redevelopment Agreement that: (a) there has been no prior assignment of the Redevelopment Agreement; (b) the Redevelopment Agreement is a valid, enforceable agreement; (c) neither party is in default to the other under the Redevelopment Agreement; (d) all covenants, conditions, and agreements have been performed as required in the Redevelopment Agreement, except those not due to be performed until after the date of this Assignment; and (e) Assignor shall not alter or amend the Redevelopment Agreement without the prior written consent of Lender. Unless and until a default shall occur under the Loan or under any of the Loan documents, Lender shall not exercise any of Assignor’s rights under the Redevelopment Agreement; provided, however, that from and after the time of any such default, Lender immediately shall become entitled, but shall not be obligated, to exercise any rights of Assignor under the Redevelopment Agreement and at Lender’s option, to perform Assignor’s obligations under the Redevelopment Agreement, if any. Lender shall not be liable for any defaults by Assignor in the performance of Assignor’s duties under the Redevelopment Agreement, and Assignor hereby agrees to indemnify, save harmless, and defend Lender against any and all claims, damages, liabilities, attorneys’ fees and losses arising out of any such default.
5. POWER OF ATTORNEY. Assignor irrevocably appoints Lender as Assignor’s attorney-in-fact with full power of substitution, at Lender’s option, but with no obligation to do so, to enforce Assignor’s rights and to perform Assignor’s obligations under the Contract, either in Assignor’s name or in Lender’s own name.
6. Amendments. This Assignment, together with any related documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Assignment. No alteration of or amendment to this Assignment shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment.
7. Attorneys’ Fees; Expenses. Lender may hire or pay someone else to help enforce this Assignment, and Assignor shall pay the costs and expenses of such enforcement. Costs and expenses include all reasonable costs incurred in the collection of the Loan, including but not limited to, court costs, attorneys’ fees and collection agency fees, except that such costs of collection shall not include recovery of both attorneys’ fees and collection agency fees.
8. Governing Law. This Assignment will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the State of Kansas without regard to its conflicts of law provisions. This Assignment has been accepted by Lender in the State of Kansas.
9. Notices. Any notice required to be given under this Assignment shall be given in writing, and shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Assignment. Any party may change its address for notices under this Assignment by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party’s address. For notice purposes, Assignor agrees to keep Lender informed at all times of Assignor’s current address. Unless otherwise provided or required by law, any notice given by Lender to either Assignor is deemed to be notice given to both Assignors.
10. No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Assignment unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Assignment shall not prejudice or constitute a waiver of Lender’s right otherwise to demand strict compliance with that provision or any other provision of this Assignment. No prior waiver by Lender, nor any course of dealing between Lender and Assignor, shall constitute a waiver of any of Lender’s rights or of any of Assignor’s obligations as to any future transactions. Whenever the consent of Lender is required under this Assignment, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender.
11. Successors and Assigns. This Assignment shall be understood to be for the benefit of Lender and for such other person or persons as may from time to time become or be the holder or owner of the Loan or any interest therein, and this Assignment shall be transferable to the same extent and with the same force and effect as any such Loan may be transferable.
12. Jury Waiver. All parties to this Assignment hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by any party against any other party.
ASSIGNOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS ASSIGNMENT OF REDEVELOPMENT AGREEMENT AND ASSIGNOR AGREES TO ITS TERMS, as of the date first written above.
ASSIGNOR:
900 New Hampshire, LLC
By: ___________________________________
Name/Title: ____________________________
LENDER:
INTRUST Bank, N.A.
By: __________________________________
Name/Title: __________ _________________
CONSENT TO ASSIGNMENT
The City of Lawrence, Kansas, a Kansas municipal corporation (the “City”), being a party to the above described Redevelopment Agreement, hereby consents to and acknowledges the above assignment of the Redevelopment Agreement and warrants that there has been no prior assignment of the Redevelopment Agreement of which the City has notice. The City hereby warrants that the Redevelopment Agreement is a valid, enforceable agreement and that, to the best of the City’s knowledge, Assignor is not in default thereunder. The City agrees that (a) Lender may enforce the obligations of the Redevelopment Agreement pursuant to the above assignment with the same force and effect as if enforced by Assignor, and (b) Lender may, but shall not be required to, perform the obligations of Assignor, and the City will accept such performance in lieu of performance by Assignor in satisfaction of Assignor’s obligations under the Redevelopment Agreement. The City further agrees that any alteration or amendment of the Redevelopment Agreement will not be effective unless and until approved in writing by Lender.
This Consent is executed and effective as of the date first written above.
THE CITY OF LAWRENCE, KANSAS
By: _____________________________________
Michael Dever, Mayor
Attest:
_________________________________________
Name/Title: Jonathan Douglass, City Clerk