Exhibit 10.38
COLLATERAL ASSIGNMENT OF TIMESHARE PROJECT PROCEEDS
COLLATERAL ASSIGNMENT OF TIMESHARE PROJECT PROCEEDS, dated as of November 30,
2006 (this "Assignment"), made by PH FEE OWNER LLC, a Delaware limited liability
company ("Fee Owner"), and OPBIZ, L.L.C., a Nevada limited liability company
("OpBiz") and TSP OWNER LLC a Delaware limited liability company ("TSP Owner"
and, together with Fee Owner, individually or collectively as the context
indicates, "Assignor"), each having its principal place of business at 3667 Las
Vegas Boulevard South, Las Vegas, Nevada 89109, in favor of COLUMN FINANCIAL,
INC., a Delaware corporation having an address at 11 Madison Avenue, New York,
New York 10010 (together with its successors and/or assigns, "Assignee").
Capitalized terms used but not defined herein shall have the meanings assigned
such terms in that certain Loan Agreement, dated as of the date hereof, between
Fee Owner and OpBiz (collectively, "Borrower"), collectively, as borrower, and
Assignee, as lender (as amended, restated, replaced, supplemented or otherwise
modified from time to time, the "Loan Agreement").
1.
ASSIGNMENT.
FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED BY ASSIGNOR, ASSIGNOR HEREBY
ASSIGNS, GRANTS, DELIVERS AND TRANSFERS TO ASSIGNEE, AS ADDITIONAL SECURITY FOR
THE FULL AND TIMELY REPAYMENT OF THE LOAN MADE PURSUANT TO THE LOAN AGREEMENT
AND TIMELY PERFORMANCE OF ALL OBLIGATIONS OF BORROWER UNDER THE LOAN DOCUMENTS,
ALL OF ASSIGNOR'S RIGHT, TITLE AND INTEREST, WHETHER NOW OWNED OR HEREAFTER
ACQUIRED, NOW EXISTING OR HEREAFTER ARISING, IN AND TO ANY AND ALL TIMESHARE
PROJECT PROCEEDS (SUCH RIGHT, TITLE AND INTEREST BEING COLLECTIVELY REFERRED TO
HEREIN AS THE "COLLATERAL").
THE ASSIGNMENT HEREUNDER OF THE COLLATERAL IS
INTENDED, TO THE FULLEST EXTENT PERMITTED BY LAW, TO BE AN ABSOLUTE ASSIGNMENT
FROM ASSIGNOR TO THE ASSIGNEE AND NOT MERELY THE PASSING OF A SECURITY
INTEREST.
AS USED HEREIN, "COLLATERAL AGREEMENT(S)" SHALL MEAN ANY DOCUMENTS,
NOW OR HEREAFTER EXISTING, PURSUANT TO WHICH ASSIGNEE IS ENTITLED TO RECEIVE
TIMESHARE PROJECT PROCEEDS.
2.
LOAN DOCUMENTS.
TSP OWNER
HEREBY APPROVES OF THE LOAN DOCUMENTS
AND THE TERMS THEREOF, AND COVENANTS AND AGREES TO BE BOUND AND TO ABIDE BY THE
TERMS THEREOF GOVERNING THE TIMESHARE PROJECT, THE TIMESHARE PROJECT PROPERTY
AND THE TIMESHARE PROJECT PROCEEDS, INCLUDING WITHOUT LIMITATION, SECTION 5.2.11
OF THE LOAN AGREEMENT.
3.
DEFENSE OF CLAIMS.
TSP OWNER COVENANTS AND AGREES TO APPEAR IN
AND DEFEND, AT ASSIGNOR'S SOLE COST AND EXPENSE, ANY ACTION OR PROCEEDING
ARISING UNDER, GROWING OUT OF OR IN ANY MANNER CONNECTED WITH THE COLLATERAL OR
THE OBLIGATIONS, DUTIES OR LIABILITIES OF ASSIGNOR UNDER THE COLLATERAL
AGREEMENTS, AND TO PAY ALL REASONABLE COSTS AND EXPENSES OF ASSIGNEE, INCLUDING,
WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND COSTS AND EXPENSES, IN ANY
SUCH ACTION OR PROCEEDING IN WHICH ASSIGNEE MAY APPEAR.
4.
REMEDIES.
SHOULD ASSIGNOR FAIL TO MAKE ANY PAYMENT OR TO DO ANY
ACT REQUIRED OF ASSIGNOR PURSUANT TO THIS ASSIGNMENT AND SUCH FAILURE SHALL
CONTINUE BEYOND ANY APPLICABLE NOTICE AND CURE PERIOD, THEN, ASSIGNEE (OR ITS
DESIGNEE OR NOMINEE) MAY (BUT WITHOUT OBLIGATION TO DO SO