HomeMy WebLinkAboutAD05-332 - Original - Springboard Holdings, LLC - Assignment of Construction Contract - Swinerton Builders Northwest - 09/14/2006 ASSIGNMF_.NT OF CONSTRUCTION CONIRACI
THIS ASSIGNMENT AND AGREEMENT is made and i,atem ' into as of the 14te day of
September, 2006, by and among SWINERTON BUILDERS NORTHWEST, MC , GENERAL
CORPORATION ("Contractor"), CENTURION FINANCIAL_ CRO119, LLC, a Washington
limited liability company ("Lender"), and SPRINGBOARD H0j,D1TICTS, L.L.C., a Washington
limited liability company ("Borrower")
RECITALS
A. bender and Borrower have entered into a Lo5n c?reetnent dated of even date
herewith (the "Loan Agreement"), pursuant to which Lendt- has agreed to make a loan to
Borrower to finance construction and equipping of improvcmLc, 'thd "Improvements") on land
(the "Land"), which, together with the Improvements, is refe,rwd to i;ereiri as the "Premises,"
located in the City of Kent, King County, Washmgto*i, in acrz-"lance «ith architectural plans and
specifications for said Improvements prepared by Jensen/F,-y -',r. °e, nclar.: & ?tanning PS
B. Contractor and Borrower have entered in,o and a ALA Document AI I I
(Standard Form of Agreement Between Owner and Contractor vrP t1le basis for payment is the
COST OF THE WORK PLUS A FEE with a negotiated Uua,k,ixt-k:a NjA3ximum Price) entered
into March 24, 2006 between Borrower and Contractor (the •n..trtr•�Gon Contract"), pursuant
to which Contractor has agreed to construct the Improve;neixt- � j a 1,ue, correct and complete
copy of which is attached hereto as Exhibit A and is hereby,r.. ' ;k r,ait hereof
C. Lender will not advance funds pursuant to the loan Agreement unless this
Assignment and Agreement is executed.
D. Contractor and Borrower each desires to execute tli 'ssignment and Agreement,
in accordance with the terms and provisions hereof, in or bi tr, ;,C11_ : Lender to advance funds
pursuant to the Loan Agreement.
NOW, THEREFORE, in consideration of the foregoin,, ,,,kd of the mutual covenants and
agreements contained herein, and other good and vahiable consideration, the receipt and
sufficiency of which are hereby acknowledged by Contracto_ t Borrower, the parties hereto
hereby agree as follows:
1. Borrower hereby assigns its rights and ini,rests in, ender and pursuant to the
Construction Contract to Lender, it being understood and art--I that if an Event of Default, as
defined in the Loan Agreement, does not occur, arn1 t,i,- In--m.,-ments are completed in
accordance therewith, then this Assignment and Agreerrcn` shell (.-iminate.
ASSIGNMENT OF CONSTRUCTION CONTRACT L
(R%CuEmTs1163401S412007 DOC)
2. If such an Event of Default does occur, then Lender mav, at its -ntion, take over
Borrower's position as Owner under the Construction Contract In such ,-lent, Lend,,r shall have
all of the rights of Borrower under the Construction Contract, and CU-etra-v)r continue to
pe- orm under the terms of the Construction Contract on behalf of Lenc•.r- %ic' ,h?'1 complete the
Improvements in the manner and by the date provided in the Construc6an Can,r•ci, ?s if Lender
,.h-re ziginally a party thereto as Owner.
3. Lender's taking over of Borrower's position as Owner ui der the Coastruction
Contract shall be preceded by at least three Business Days' (as that tern, is defined in the Loan;,ree,nent)prior written notice to Contractor.
4. Borrower and Contractor shall not cause the Constructioa Contract to be modified
r .:.rcoded (other than by change orders within the permissible limits .;pr-.-ficd by the Loan
Js Jei-n,ent), and Borrower shall not waive any of its rights under the Construction Contract,
,. ,tac .t 'he prior written consent of Lender. Contractor shall not terininate, 1 , acdxpt termination
me Construction Contract without giving at least 30 days' prior rATIII i notice to Lender.
r, upon receipt of such notice, shall have the right, but not the obligwion, at its option, to
,c. Borrower's position as Owner under the Construction Contrf�ci to ; .ire the grounds
art,d by Contractor for termination of the Construction Contract ':ire t_n.wtiuc..ion Contract
i^t be terminated by Contractor while Lender is promptly d:z:s,errt./ and actively
-uang such a cure, provided that Contractor shall not be obligati, ' perform
.suer the Construction Contract during the cure period unless Leadw, t• reA to pay for
1< pe,formance. Borrower shall not terminate, or accept termination of sac; r,-mstruetion
-t• I,t without Lender's prior written consent
S. In the event Lender does take over Borrower's nosWiw :,s Owner under the
vtiuction Contract, all payments to be made thereunder shall he supjp9 t to all of the
.it,irements and prerequisites to advances and disbursements set fort"a in -1 ;e ,oats Agreement
J in the Disbursing Agreement, if any, referred to therein.
u. In addition, Borrower hereby grants to Lender a security interest in Borrower's
:.bass, title and interests in, to and under the Construction Contract, if and a(i the extent that a
,e",.wity interest may be granted therein under the Uniform Commercial Colo- is in �A ect in the
to „here the Premises are located (the "Code"), and Borrower acknowledg•. - `)at Lender shall
have all of the rights and remedies with respect thereto provided for b-
y the Code, in addition to
dire other rights and remedies herein granted to Lender, in the event of the oc:,,,,Tence of an Event
at l_',efault under the Loan Agreement
7. Subject to the provisions hereof, this Assignment and Agm-meet Gi,all be binding
vqt n POrrower, Contractor and their respective successors and assigns, �•,d . x;atl inure to the
bem,,it or'Lender, its successors and assigns Lender may assign its rights ut,:lcF. ,vssignment
yeement, without the consent of Contractor or Borrower, but r_eith%r C"on;raetor nor
ASSIGNMENT OF CONSTRUCTION CONTRACT 2
tr kC1jr,NW16340\S412007 ooC)
a`r",rruwer VnI -ar;aign its obligations under the Construction Contract or -Wder th;s Assigr-m=t
,ind Agreec-:eni withcut Lhe prior written consent of Lender.
V .",a:y notice or other communication to any party in conneutlojt with *da is
Assignment mA Agreement shall be in writing and shall be sent by rnan.lal d iM—iy, telt,6!am,
'e? x, tresirrile transmission, overnight courier or United States mail (postage Fri)azd !0dras.,,e d
to s :ch ;atry : the address specified below, or at such other address as any 1 `'ail $-avc
specifiers t thF o`her parties hereto in writing not less than five Business Day-, (as the
Loan prior to the effective date of the change. All period.,,, ci notit,e shads .xe
aneasz e t i;-: ,.he :late of delivery thereof if manually delivered, from the ,i tt of ser:d`ng
zhFrE>„; :f nt by telegram, telex or facsimile transmission, from the first Bus - r��, I`ay (as
def,n:.. . the Loan Agreement) after the date of sending if sent by oveniight MLrxier. or Hrom
fcwr -<<,� . ^ .r_Ire date of mailing if mailed:
"ontractor: Swinerton Builders Northwest,Inc.,General Corpe�axtrrn
3180 139`h Avenue Southeast
Suite 250
Bellevue, WA 98005
Facsimile No.(425)283-5291
o,rer: Springboard Holdings, L.L.C.
c/o Plan B Development, L.L.C.
2018 156`h Avenue NE
Bellevue, WA 98007
Attention- Ben Errez
Facsimile No. (425)644-2185
[ru Lender: Centurion Financial Group, LLC
10500 N.E. 8"' Street, #1825
Bellevue, WA 98004
Attention: Eric deGooyer
Facsimile No. (425)638-0225
("The remainder of this page is intentionally left blank.]
ASSIG1,TN4T NT OF CONSTRUCTION CONTRACT 3
(R\CL1EMTM 163401S4 i<"007 DOC i
IN W1'R11FS8 W7E PEOF, the parties hereto have executed this Assignment and
Agree_ne-t qs cf 01- da,e first above written.
SPRINGBOARD HOL GS,L.L.C.
By
Ben Errez, i ent
SWMRTON BUILDERS NORTHWEST, INC.,
GENERAL CORPORATION
By
Name:
Title:
CENTURION FINANCIAL GROUP, LLC
By -- —
J Eric deGooyer,Manag
ASSIGNMENT OF CONSTRUCTION CONTRACT 4
(R\CLIENTS\)6340\S4I2007 DOC)
EXHIBIT A
Co,astruction Contract
CONSENT TO ASSIGNMENT OF CONSTRUCTION CONTRACT
Project Springboard —Parking Garage Project
Kent, Washington
The undersigned, Swinerton Builders Northwest, Inc. ("Contractor")has entered
a into a Standard Form of Agreement between Owner and Contractor dated March 24,
2006, with Springboard Holdings L.L.0 , a Washington limited liability company
("Developer").
Developer has executed and delivered to Centurion Financial Group, LLC, a
Washington limited liability company, a Deed of Trust, Security Agreement. Assignment
of Leases and Rents and Fixture Filing dated as of December 15, 2005 (the "Deed of
Trust") to secure obligations of Developer to Centurion under that certain Replacement
Parking Agreement dated as of October 12, 2005 (the "Replacement Parking
Agreement"), which, among other things, evidences the obligations of Developer to
design, develop, construct and complete the Parking Garage (as defined therein).
Pursuant to said Deed of Trust and Replacement Parking Agreement, Developer
has assigned to Centurion as security for the performance of its obligations under the
Replacement Parking Agreement, all of its right, title and interest in and to the above-
described construction contract and all permitted amendments and modifications thereto
(collectively the "Contract").
The Contractor hereby consents to said assignment and agrees with Centurion as
follows:
1. Contractor acknowledges that Centurion does not hereby assume any
Developer's obligations or duties under the Contract, including, without limitation, the
obligation to pay for work done by the Contractor under the Contract unless and until
Centurion exercises its rights under the Replacement Parking Agreement with respect to
the Contract and Centurion expressly assumes any such obligation by written notice to
Contractor.
2. In the event of a default by Developer under the Contract, the Contractor will
give written notice of such default to Centurion Financial Group Centurion shall have
the right, but not the obligation, to cure such default for sixty (60) days following the
receipt of such notice. Nothing in this paragraph 2 shall otherwise alter or amend
Contractor's contractual or legal remedies for Developer's default, including, but not
limited to, Contractor's right to stop work in the event of non-payment
3. In the event of a default by Developer under the Replacement Parking
Agreement or the Deed of Trust, Centurion may deliver written notice of such default to
Contractor, which notice shall be conclusive evidence of such default upon which the
Contractor may rely Upon receipt of such notice, and at the request of Centurion, the
Contractor shall continue performance on behalf of Centurion under the Contract in
accordance with the terms thereof; provided, however, that Contractor shall be
reimbursed by Centurion in accordance with the Contract for all properly performed work
which Developer has not paid Contractor, plus any additional work, labor and materials
rendered on Centurion's behalf from and after the date of such notice.
4. The Contract is in full force and effect, no material defaults exist thereunder,
and all conditions to the effectiveness or continuing effectiveness thereof required to be
satisfied as of the date hereof have been satisfied.
5. The Contractor represents and warrants to Centurion that it is duly licensed to
act as a general contractor and to conduct its business in the State of Washington where
such construction work is to be performed.
6. If any action is instituted with respect to this Consent, each party shall be
responsible to pay for all its own attorneys' fees and costs.
7 All capitalized terms not otherwise defined herein shall have the same meaning
as set forth in the Replacement Parking Agreement.
8. This Consent is binding on Contractor and its successors and assigns and shall
inure to the benefit of Centurion and its successors and assigns.
This Consent to Assignment of Construction Contract is made as of the 18th day
of September, 2006.
"CONTRACTOR"
SWINERTON BUILDERS
By
Name Ron A. n ya
Title Vice-President/Division Manager
Address•
3180— 139th Avenue S.E.
Suite 250
Bellevue, Washington 98005
Contractor's License No.: SWINEBN970J5
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