Exhibit 99.18
ASSIGNMENT OF RENTS AND LEASES
THIS ASSIGNMENT OF RENTS AND LEASES (this "Assignment"), is made
this 29th day of September, 1999 by PITTSFIELD MOLD & TOOL, INC.,
a Massachusetts corporation with a mailing address, for the purposes
hereof at 00 Xxxxx Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
(the "Borrower") for the benefit of BERKSHIRE BANK, a Massachusetts
banking corporation, with its office and principal place of business
at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Lender").
W I T N E S S E T H:
Reference is made to two promissory notes (collectively, the "Note")
of even date herewith in the principal amounts of TWO MILLION FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS ($2,500,000.00) and ONE MILLION
NINE HUNDRED THOUSAND and NO/100 DOLLARS ($1,900,000.00),
respectively, (collectively, the "Loan"), from the Borrower as
maker, to Lender as payee, to mortgages of even date herewith
granted by the Borrower to Lender securing the Note (collectively,
the "Mortgage") encumbering premises located at 00 Xxxxx Xxxxxxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx, described on Exhibit A attached
hereto and made a part hereof (the "Premises"), and to any and all
other documents executed by either party evidencing, securing and/or
relating to the Loan (all of which are collectively referred to
herein as the "Loan Documents").
In order to secure further the prompt payment of the Loan and
performance of the obligations of Borrower under the Loan Documents,
and in consideration of the Loan, the Borrower does hereby assign,
transfer, and set over unto Lender (i) all rents and other payments
required of lessees, tenants, occupants, licensees, concessionaires,
or other persons or parties (hereinafter collectively referred to as
"Tenants"), whether or not designated as rent or additional rent
(including, without limitation, security deposits, tax or operating
expense escalation payments, percentage rent, or any other payments
from any license, use permit, or concession), (items in the nature
of monetary payments described herein are collectively referred to
herein as "Rents") arising from any rental units, space or rentable
facilities within, on or appurtenant to the Premises or any portion
thereof, whether under existing leases, licenses, tenancies,
occupancies, or concessions or agreements of any sort, written or
unwritten (collectively referred to as "Leases"), or under any
Leases hereafter arising, and (ii) all of the Borrower's contractual
rights, including, without limitation, the Leases, now existing or
hereafter arising between the Borrower and any Tenant with respect
to the Premises, regardless of whether or not such rights run with
the land.
The Borrower shall have a revocable license to collect and receive
the Rents and to retain, use and enjoy such rents and to exercise
and enforce the Borrower's contractual rights with respect to the
Premises described in item (ii) above. This license may be revoked
by the Lender without notice to the Borrower upon the occurrence of
an Event of Default (after any applicable notice provisions have
been complied with and cure provisions have expired) by the Borrower
under the terms of any of the Loan Documents.
The Borrower hereby authorizes Lender, its employees and agents, at
Lender's option, after the occurrence of an Event of Default (after
any applicable notice provisions have been complied with and cure
provisions have expired) under any of the Loan Documents and without
notice, to enter upon the Premises and to collect, in the name of
the Borrower or in Lender's name as assignee, the Rents accrued but
unpaid and in arrears at the date of such default, as well as the
Rents thereafter accruing and becoming payable. The Borrower
further agrees that the Borrower shall facilitate in all reasonable
ways Lender's collection of said Rents, and shall, upon request of
Lender, execute a written notice to each Tenant directing the Tenant
to pay rent to Lender.
The Borrower also authorizes Lender, its employees and agents, at
its option after any Event of Default (after any applicable notice
provisions have been complied with and cure provisions have expired)
under any of the Loan Documents, to enforce all or any of such
contractual rights as may have been assigned hereby, and the
Borrower hereby irrevocably appoints Lender as its attorney-in-fact,
which appointment is acknowledged by the parties hereto to be
coupled with an interest, to do all acts pertaining thereto in its
place and stead.
The Borrower also authorizes Lender, its employees and agents, upon
such entry, at its option, to take over and assume the management,
operation and maintenance of the Premises and, in connection
therewith, to perform all acts and to expend such sums out of the
Rents or any other income of the Premises as Lender may deem
advisable, in the same manner and to the same extent as the Borrower
might do, including the right to enter into new Leases, to cancel or
surrender existing Leases, to alter or amend the terms of existing
Leases, to renew existing Leases, or to make concessions to or deal
in any other way with Tenants or to exercise any other rights
granted to Lender hereunder. The Borrower hereby releases all
claims against Lender arising out of or in connection with such
management, operation, and maintenance unless Lender shall be deemed
by a court of competent jurisdiction to have acted in bad faith or
with gross negligence.
Lender shall, after payment of all costs and expenses, including
reasonable attorneys' fees and reasonable compensation to itself or
to such managing agent as it shall, in the exercise of its sole
judgment, select and employ, and after the accumulation of all
proper reserves (including, without limitation, reserves for taxes,
assessments, utilities, and fire and liability insurance) credit the
net amount of income received by it from the Premises by virtue of
this Assignment to any amounts due and owing to it by Borrower under
the terms of any of the Loan Documents. The manner of the
application of such net income and what items shall be credited
shall be determined in the exercise of the sole discretion of the
Lender. Lender shall not be accountable for more monies than it
actually receives from the Premises nor shall it be liable for
failure to rent or lease vacant space, collect Rents or enforce
other obligations of Tenants. Lender shall make reasonable efforts
to collect Rents, reserving, however, within its own discretion, the
right to determine the method of collection and the extent to which
enforcement of collection of delinquent Rents or the eviction of
delinquent Tenants shall be prosecuted.
The Borrower covenants and warrants to Lender that neither the
Borrower nor any previous owner has executed any prior assignment or
pledge of the Rents of the Premises or any other contract rights
hereby assigned nor any prior assignment or pledge of the Borrower's
or other landlord's interest in any lease of the whole or any part
of the Premises. The Borrower also hereby covenants and agrees not
to collect the Rents of the Premises more than thirty (30) days in
advance, other than such payments as are required to be paid in
advance by the terms of any lease which has been approved by Lender,
and further agrees not to do any other act which would destroy or
impair the benefits to Lender of this Assignment.
The Borrower shall not, without having obtained the prior written
consent of Lender (which consent shall not be unreasonably
withheld): (a) release Tenants from any liability under the Leases
or otherwise, or consent to, suffer or permit or waive any act or
omission on the part of the Tenants which would otherwise constitute
a default under the Leases; or (b) cancel or surrender existing
Leases or alter or amend the terms of any Leases.
Lender shall not be obligated to perform or discharge any
obligation, duty or liability under any Leases, and the Borrower
shall indemnify and hold Lender harmless from any liability, loss,
or damage which it might incur under the Leases, by reason of this
Assignment or from any other claims or demands which may be asserted
against Lender by reason of any alleged obligation or undertaking on
its part to be performed or discharged under any of the Leases. If
Lender incurs any such liability, loss or damage in the defense of
any such claims or demands, the Borrower shall immediately, upon
demand, reimburse Lender for the amount thereof, including costs,
expenses, and attorneys' fees and any failure to promptly reimburse
Lender shall cause such amounts to be added to the debt secured by
the Loan Documents and shall earn interest at the Interest Rate set
forth in the Note.
Entry by Lender upon the Premises under the terms of this Assignment
shall not constitute Lender a "mortgagee in possession" in
contemplation of law, except at the option of Lender expressed in
writing.
The provisions of this Assignment shall be binding upon the Borrower
and the Borrower's legal representatives, successors and assigns and
shall inure to the benefit of the Lender and its successors and
assigns. The word "Borrower" shall be construed to mean any one or
more persons or parties who are holders of the legal title or equity
of redemption on the Premises.
This Assignment shall remain in full force and effect as long as the
obligations secured by the Loan Documents remain outstanding and
only a discharge of the Mortgage appearing of record where the
Mortgage is recorded shall operate as a release of all of Lender's
rights and interest hereunder.
IN WITNESS WHEREOF, Borrower has caused this instrument to be
executed by Xxxxxxx X. Xxxx, III, its duly authorized President and
Treasurer, and its corporate seal to be hereunto affixed as of the
date first above written.
PITTSFIELD MOLD & TOOL, INC.
By: /s/ Xxxxxxx X. Xxxx, III
Xxxxxxx X. Xxxx, III,
President and Treasurer
COMMONWEALTH OF MASSACHUSETTS
BERKSHIRE, ss. September 29, 1999
Then personally appeared the above-named Xxxxxxx X. Xxxx, III,
President and Treasurer, who acknowledged the foregoing instrument
to be the free act and deed of Pittsfield Mold & Tool, Inc., before
me,
/s/ Xxxxxx X. Denmark
Xxxxxx X. Denmark, Notary Public
My Commission Expires: 7/27/01
