COLLATERAL ASSIGNMENT OF MEMBER INTEREST (GLOBAL WATER RESOURCES, LLC)
Exhibit 10.15
COLLATERAL ASSIGNMENT OF MEMBER INTEREST
(GLOBAL WATER RESOURCES, LLC)
(GLOBAL WATER RESOURCES, LLC)
THIS COLLATERAL ASSIGNMENT OF MEMBER INTEREST (the “Assignment”) is made December 9,
2005, by and among XXXXXX INVESTMENTS LIMITED PARTNERSHIP, XXXXXX XXXX, XXX XXXXXXXXXX, XXXXXX
XXXXXXXXXX, XXXXXX XXXX, XXXXXX XXXXXXXX and XXXXX XXXXX (individually and/or collectively as the
context requires, “Assignor”), and XXXXX FARGO BANK, NATIONAL ASSOCIATION (“Assignee”) (Assignor
and Assignee, collectively, the “Parties”).
RECITALS:
A. Assignee has extended a line of credit (the “Loan”) to Global Water Management, LLC,
Global Water Resources, LLC (the “Company”) and Global Water Resources, Inc. (each individually
and collectively, the “Borrower”), pursuant to that certain Amended and Restated Credit Agreement
of even date herewith (the “Credit Agreement”) with the Loan evidenced by an Amended and Restated
Revolving Line of Credit Note of even date herewith (the “Note”) in the original principal amount
of Thirty-Five Million Dollars ($35,000,000.00). Capitalized terms not otherwise defined herein
shall have the same meaning as set forth in the Credit Agreement.
B. Assignor is the owner and holder of 100% of the Members’ interests (both “Common Units”
and “Preferred Units” as such italicized terms are defined in that certain Second Amended and
Restated Operating Agreement dated January 1, 2005 (the “Operating Agreement”)) in and to the
Company (the “Membership Interests”).
C. Assignor has agreed to secure the payment and performance of the Loan by assigning to
Assignee, as collateral security, the Membership Interests.
D. Assignor acknowledges Assignee would not have made the Loan to Borrower but for the
execution of this Agreement by Assignor.
NOW, THEREFORE, in consideration of the Loan, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties agreed as follows:
1. Recitals. The foregoing recitals are approved and incorporated herein by reference
as agreements of the Parties.
2. Assignment.
For the purpose of securing repayment of the Loan, and other amounts
related thereto, including but not limited to interest, late charges, default interest, advances,
costs, service charges, and attorneys’ fees, and all extensions and renewals thereof and
modifications thereto, Assignor hereby assigns, transfers, and sets over to the Assignee for
collateral purposes only all of its rights, powers, privileges, proceeds, distributions, and
avails in the Membership Interests now or hereafter created or reserved.
3. No Encumbrances/Certificates. Assignor represents and warrants to Assignee that
(a) its Membership Interests is free and clear of all liens, and is not subject to any prior
assignments and (b) its Membership Interests is not evidenced by any certificate or other
instrument.
4. Disbursements. Until and unless there has occurred a monetary default under the
Loan, all monies payable to Assignor under the terms and conditions of the Operating Agreement
shall be collected, held and disbursed by the Assignor. In the event Borrower is in monetary
default under the Loan, Assignee may retain all such funds and apply same to the indebtedness
secured hereby in such order and manner as Assignee shall determine in its sole discretion.
5. Assignee’s Right to Cure. In the event Assignor fails or neglects to make any
contributions due under the Operating Agreement or to pay any other charges which are then the
obligation of Assignor under the Operating Agreement, then Assignee shall have the right to
advance any amounts necessary to protect Assignor’s Membership Interests or meet any of the
obligations of Assignor under the Operating Agreement. Any amount so advanced shall be added to
the aforesaid indebtedness secured by this Assignment, and shall bear interest at a per annum rate
of interest five percent (5%) higher than the interest rate specified in the Note from the date of
any cash advancement by Assignee. Any payment made by Assignee in accordance with this paragraph 5
shall be prima facie evidence of the necessity therefor.
6. Appear and Defend. Assignor agrees to appear in and defend any action or
proceeding purporting to affect the security hereof or the rights or powers of Assignee hereunder,
and to pay all costs and expenses of Assignee including the cost of evidence of title and
reasonable attorneys’ fees, in any such action or proceeding in which Assignee may appear or be
named, and in any suit brought by Assignee to foreclose this Assignment.
7. Defaults and Remedies.
a. Upon the occurrence of an Event of Default and during the continuation of
such Event of Default, the Assignee may cause the transfer and register in its name or in
the name of its designee the whole or any part of the Membership Interests, exercise any
rights or powers with respect thereto, collect and receive all distributions made thereon,
sell in one or more sales after ten (10) days notice of the time and place of any public
sale or of the time after which a private sale is to take place (which notice Assignor
agrees is commercially reasonable), but without any previous notice or advertisement, the
whole or any part of the Membership interests and to otherwise act with respect to the
Membership Interests as though the Assignee was the outright owner thereof. Assignor hereby
irrevocably constitute and appoint the Assignee as the attorney-in-fact of Assignor, with
full power of substitution, to sign any document or take any act in order to do so,
provided, however, that the Assignee shall not have any duty to exercise any such right or
to preserve the same and shall not be liable for any failure to do so or for any delay in
doing so. Any sale shall be made at a public or private sale at the Assignee’s place of
business, or elsewhere to be named in the notice of sale, either for cash or upon credit or
for future delivery at such price as the Assignee may deem fair, and the Assignee may be
the purchaser of the whole or any part of the Membership Interests so sold and hold the
same thereafter in its own right free from any claim of the Assignor. Each sale shall be
made to the highest bidder, but the Assignee reserves the right to reject any and all bids
at such sale that, in its absolute discretion, it shall deem inadequate. Any purchaser or
any assignee of such purchaser of the Membership Interests, at such purchaser’s election,
may become a substitute member. Demands of performance, except as otherwise herein
specifically provided for, notices of sale,
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advertisements and the presence of property at sale are hereby waived and any sale
hereunder may be conducted by an auctioneer or any officer or agent of the Assignee.
b. Assignor agrees that following the occurrence and during the continuance of an Event
of Default, it will not at any time plead, claim or take the benefit of any appraisal,
valuation, stay, extension, moratorium or redemption law now or hereafter in force in order
to prevent or delay the enforcement of this Assignment, or the absolute sale of the whole or
any part of the Membership Interests or the possession thereof by any purchaser at any sale
hereunder, and Assignor waives the benefit of all such laws to the extent Assignor lawfully
may do so. If an Event of Default has occurred and is continuing, Assignor agrees that
Assignor will not interfere with any right, power and remedy of the Assignee provided for in
this Assignment or now or hereafter existing at law or in equity or by statute or otherwise,
or the exercise or beginning of the exercise by the Assignee of any one or more of such
rights, powers or remedies. No failure or delay on the part of the Assignee to exercise any
such right, power or remedy and no notice or demand which may be given to or made upon
Assignor by the Assignee with respect to any such remedies shall operate as a waiver
thereof, or limit or impair the Assignee’s right to take any action or to exercise any power
or remedy hereunder, without notice or demand, or prejudice its rights as against Assignor
in any respect.
c. Assignor further agrees that a breach of any of the covenants contained in this
Section 7 will cause irreparable injury to the Assignee, that the Assignee has no adequate
remedy at law in respect of such breach and, as a consequence, agree that each and every
covenant contained in this Section 7 shall be specifically enforceable against Assignor and
Assignor hereby waives and agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that the Loan is not then due and
payable in accordance with the agreements and instruments governing and evidencing such
obligations.
8. Irrevocable Assignment. This Assignment is irrevocable and shall remain effective
with respect to Assignor until written approval of such revocation shall be furnished to the
Assignor by Assignee.
9. Uniform Commercial Code. In addition to the rights and remedies granted to
Assignee hereunder or to which the Assignee may be entitled at law, in equity or by statute, to
the extent that the interest conveyed hereby shall be deemed to be a security interest under the
Uniform Commercial Code, Assignor shall be deemed to be the “debtor” and Assignee the “secured
party,” and the security interest conveyed hereby shall be foreclosed pursuant to the terms,
conditions, and provisions of the Uniform Commercial Code.
10. No Further Encumbrance. Assignor herein covenants and agrees that its Membership
Interests shall not be further encumbered (other than taxes and assessments) and/or conveyed, in
any manner whatsoever, without Assignee’s express prior written consent.
11. Assignor to Perform. Notwithstanding anything herein to the contrary,
Assignee, by accepting this Assignment, shall not, except as otherwise herein may be specifically
provided, be subject to any obligation, liability, or duty to perform any of the terms, covenants,
provisions, conditions, or agreements made by Assignor in the Operating Agreement, but all thereof
shall continue to rest upon, be kept and performed by Assignor as though this Assignment had not
been made. Assignor shall make all contributions and pay all costs, claims
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and expenses arising directly or indirectly out of Assignor’s Membership Interests and shall
indemnify and hold Assignee harmless therefrom.
12. No Waiver or Discharge. Assignor shall not be discharged, and the security herein
shall not be waived, or anyway affected or impaired, and the priority of Assignee’s liens hereunder
shall in no way be affected or implied, by any extension of lime, the making of additional advances
or notes, any renewal or extension of the Loan, any modification to the terms of the Loan, any
decrease or increase in the interest rate of the Loan, the taking of further security, releases of
a part or all of the property securing the Loan, extinguishment or release of this Assignment as to
all or any part of Assignee’s Membership Interests, or any other act except a release or discharge
of this Assignment upon the full payment of the Loan secured by this Assignment.
13. Release. Upon payment of the Loan in full and any further amounts due and owing
to the Assignee under the provisions hereof, this Assignment shall become null and void and have
no further force and effect.
14. Construction. Wherever the context of this Assignment so requires, words used in
the masculine gender include the feminine and neuter; the singular number includes the plural and
plural the singular.
15. General Provisions. Except to the extent inconsistent with the express language
of the foregoing provisions of this Assignment, the following provisions shall govern the
interpretation, application, construction and enforcement of this Assignment.
a. Notices. Any notice to a Party under this Assignment shall be in writing
and shall be effective on the earlier of (i) the date when received by such Party, or (ii)
the date which is five (5) days after mailing (postage prepaid) by certified or registered
mail, return receipt requested, addressed to such Party c/o Borrower at Borrower’s address
for notices as referenced in the Credit Agreement, or to such other address as shall have
previously been specified in writing by such Party to all Parties.
b. Severability. If any provision of this Assignment is declared void or
unenforceable, such provision shall be deemed severed from this Assignment, which shall
otherwise remain in full force and effect.
c. Additional Acts and Documents. Each Party agrees to do all such things and
take all such actions, and to make, execute and deliver such other documents and
instruments, as shall be reasonably requested to carry out the provisions, intent and
purpose of this Assignment including, but not limited to, any further acts required by
Arizona Administrative Code R14-2-803 and other similar laws, rules, statutes and codes
related to Assignee’s exercise of its remedies.
d. Authority. Each Party represents and warrants to each other Party that this
Assignment has been duly authorized by all necessary action and that this Assignment
constitutes and will constitute a binding obligation of each such Party.
e. Principal Residence/Place of Registration. Each Assignor represents and
warrants that if such Assignor is a person, Assignor’s principal residence is in the state
of Arizona and if such Assignor is a registered organization, Assignor is registered in the
State of Arizona.
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f. Attorneys’ Fees. In the event suit is brought (or arbitration instituted) or
an attorney is required by any Party to this Assignment to enforce the terms of this
Assignment or to collect for the breach hereof or for the interpretation of any provision
herein in dispute, or in connection with any bankruptcy proceedings, the prevailing Party
shall be entitled to recover, in addition to any other remedy, reimbursement for reasonable
attorneys’ fees, court costs, costs of investigation and other related expenses incurred in
connection therewith.
g. Successors and Assigns. This Assignment shall be binding upon and inure to
the benefit of the Parties, and their respective successors in interest and assigns, but in
no event shall any Party be relieved of its obligations hereunder without the express
written consent of each other Party.
h. Counterparts. This Assignment may be executed in any number of
counterparts, all such counterparts shall be deemed to constitute one and the same
instrument, and each of said counterparts shall be deemed an original.
i.
Time. Time is of the essence of this Assignment and each and every
provision hereof. Any extension of time granted for the performance of any duty under this
Assignment shall not be considered an extension of time for the performance of any other
duty under this Assignment.
j. Waiver. Failure of any Party to exercise any right or option arising out
of
a breach of this Assignment shall not be deemed a waiver of any right or option with
respect to any subsequent or different breach, or the continuance of any existing breach.
k. Governing Law. This Assignment shall be deemed to be made under,
and shall be construed in accordance with and shall be governed by, the laws of the State
of Arizona.
l. Exhibits. Any exhibit attached hereto shall be deemed to have been
incorporated herein by this reference, with the same force and effect as if fully set forth
in the body hereof.
IN WITNESS WHEREOF, Assignor hereby sets its hand on the day and year first above written.
| ASSIGNOR: Xxxxxx Investments Limited Partnership, an Arizona limited partnership |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx, General Partner | ||||
| /s/ Xxxxxx Xxxx | ||||
| Xxxxxx Xxxx | ||||
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| /s/ Xxx Xxxxxxxxxx | ||||
| Xxx Xxxxxxxxxx | ||||
| /s/ Xxxxxx Xxxxxxxxxx | ||||
| Xxxxxx Xxxxxxxxxx | ||||
| /s/ Xxxxxx Xxxx | ||||
| Xxxxxx Xxxx | ||||
| /s/ Xxxxxx Xxxxxxxx | ||||
| Xxxxxx Xxxxxxxx | ||||
| /s/ Xxxxx Xxxxx | ||||
| Xxxxx Xxxxx | ||||
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ACKNOWLEDGMENT, ACCEPTANCE AND APPROVAL
GLOBAL
WATER RESOURCES, LLC (the “Company”), hereby acknowledges, accepts and approves the
assignment of Members’ interest in the Company and of all rights to receive distributions of cash
payable by the Company to the Members, and hereby agrees that, upon and following notice from
Assignee that an Event of Default has occurred, it shall pay directly to XXXXX FARGO BANK NATIONAL
ASSOCIATION, as Assignee in the above and foregoing Collateral Assignment of Member Interest, any
and all sums due or payable to the Members or any of them until it shall receive notice from
Assignee either (i) to discontinue direct payments, or (ii) that all sums under the Note and the
Loan Documents shall be fully paid.
IN WITNESS WHEREOF, the undersigned have executed this instrument as of the 9th day of
December, 2005.
| GLOBAL WATER RESOURCES, LLC, a Delaware limited liability company |
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| By: | Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx, Manager | ||||
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