Exhibit 10.14(c)
COLLATERAL ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS is made as of the 29th day of August
1996, by Xxxxxxx & Yale, Inc. a Massachusetts corporation (the "Assignor") to
PRIMARY BANK, a New Hampshire banking corporation (the "Lender"), or to its
order, at its principal office and mailing address of 00 Xxxx Xxxxxx,
Xxxxxxxxxxxx, Xxx Xxxxxxxxx 00000, (the "Assignee").
RECITALS
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A. Concurrently herewith, the Assignor has executed and delivered to the
Assignee its promissory note to Assignee of even date herewith in the face
amount of $1,500,000.00 ("Note"), secured by a Mortgage Deed and Security
Agreement (the "Mortgage") with respect to the real property and improvements of
the Assignor located at 00 Xxxxxxxxx Xxxx, Xxxxx, Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx (the "Mortgaged Premises").
B. As additional security for the Note and the obligations of the Assignor
thereunder, the Assignor has executed and delivered to the Assignee this
Collateral Assignment of Leases and Rents.
NOW, THEREFORE, in consideration of Assignee making the loans evidenced by
the Note, the Assignor, does hereby transfer, assign, deliver and grant a
security interest to the Assignee in all of the right, title and interest of the
Assignor in and to (1) all leases, subleases, tenancies and any other
agreements, whether written or oral, now or hereafter existing with respect to
any portion or portions of the Mortgaged Premises, together with any renewals or
extentions thereof or any agreements in substitution therefor (all of which are
hereinafter collectively referred to as the "Assigned Leases"), (2) all rents
and other payments of every kind due or payable and to become due or payable to
the Assignor by virtue of the Assigned Leases, or otherwise due or payable and
to become due or payable to the Assignor as the result of any use, possession or
occupancy of any portion or portions of the Mortgage Premises, and (3) all
rights, title and interest of the Assignor in and to any and all guaranties of
the Assigned Leases.
TO HAVE AND TO HOLD the same unto the Assignee, its successors and assigns,
for the purpose of securing (1) payment of the Note together with the interest
thereon; (2) payment of all other sums, with interest thereon, to become due and
payable to the Assignee hereunder, under the Mortgage or under any other
instrument securing the Note; (3) performance and discharge of each and every
obligation, covenant and agreement of the Assignor contained herein, or in the
Note or Mortgage; and (4) payment of any other obligation of the Assignor to the
Assignee now or hereafter existing, (said obligations are hereinafter
collectively referred to as the "Obligations").
This instrument of assignment is delivered and accepted upon the following
terms and conditions:
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1. Assignor's License to Operate if no Default. So long as no Event of
Default (as defined under the Obligations) or other default in the performance
of the Obligations (subject to applicable cure periods) shall exist (hereinafter
referred to as an "Event of Default"), the Assignor shall have a license to
manage and operate the Mortgaged Premises and to collect, receive and apply for
its own account all rents, issues and profits accruing by virtue of the Assigned
Lease, and to execute and deliver proper receipts and acquittance therefor,
provided, however, that without the written consent of the Assignee the Assignor
shall not collect any installment of rent in advance of the respective dates
prescribed in the Assigned Leases for the payment thereof other than one (1)
month's advance rental in the form of a security deposit or as payment for the
last one (1) month of any lease term (hereinafter referred to as "Permitted
Advance Rental Payments").
2. Assignee's Rights in Event of Default.
2.1 Immediately upon the occurrence of any Event of Default, the license
mentioned in the foregoing paragraph 1 hereof shall cease and terminate, and in
such event in addition to any other remedies of the Assignee, upon notice of
Assignee to each lessee of an Assigned Lease, all rentals thereafter payable to
Assignor shall be paid to Assignee.
2.2 The Assignor does hereby constitute and appoint the Assignee,
irrevocably, with full power of substitution and revocation, its true and lawful
attorney, for it and in its name, place and stead, upon the occurrence of an
event of default, to do and perform any or all of the actions which Assignor is
entitled to perform in connection with the Assigned Leases, as fully, to all
intents and purposes, as it could do if personally present, hereby ratifying and
confirming all that its said attorney or its substitute shall lawfully do or
cause to be done by virtue hereof. Any action, or failure or refusal to act, by
the Assignee under this subparagraph 2.2 shall be at its election and without
any liability on its part.
2.3 The Assignee shall apply the net amount of rents, issues and profits
received by it from the Mortgaged premises, in the following order of priority:
(i) to payment of all proper costs and charges (including any liability, loss,
expense or damage hereinafter referred to in paragraph 4.1 hereof), (ii) to the
payment of all accrued but unpaid interest due under the Note, (iii) to the
payment of principal under the Note to be applied to principal install ments in
the inverse order of maturity, (iv) to the payment of any other amounts owed to
Assignee and secured by the Mortgage, and (v) to the Assignor or such persons
legally entitled thereto.
2.4 The Assignee shall be accountable to the Assignor only for monies
actually received by the Assignee and the acceptance of this assignment shall
not constitute a satisfaction of any of the Obligations, except to the extent of
amounts actually received and applied by the Assignee on account on the same.
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2.5 The rights and powers of the Assignee hereunder shall continue and
remain in full force and effect until all amounts secured hereby are paid in
full.
3. Covenants of Assignor. The Assignor, for itself and for its successors
and assigns, agrees and warrants as follows:
(a) that each of the Assigned leases now or hereafter in effect is and
shall be a valid and subsisting lease and that there are no defaults on the part
of any of the parties thereto;
(b) that the Assignor has not sold, assigned, transferred, mortgaged
or pledged any of the rents, issues or profits from the Mortgaged Premises or
any part thereof, whether now or hereafter to become due, to any person, firm or
corporation other than the Assignee;
(c) that no rents, issues or profits of the Mortgaged Premises, or any
part thereof, becoming due subsequent to the date hereof have been collected
(other than permitted Advance Rental Payments) nor has payment of any of the
same been anticipated, waived, released, discounted or otherwise discharged or
compromised;
(d) that it will not assign, pledge or otherwise encumber the Assigned
Leases or any of the rents thereunder unless the prior written consent of the
Assignee shall have been obtained thereto;
(e) that it will not, without in each case having obtained the prior
written consent of the Assignee, which consent shall not be unreasonably
withheld, amend or modify, directly or indirectly in any material respect
whatsoever, cancel, terminate, or accept any surrender of any Assigned Lease;
(f) that it will not waive or give any consent with respect to any
default or variation in the performance of any material term, covenant or
condition on the part of the lessee, sublessee, tenant or other occupant to be
performed under the Assigned Leases, but will at all times take proper steps to
enforce all of the provisions and conditions thereof;
(g) that it will perform and observe, or cause to be performed and
observed, all of the terms, covenants and conditions on its part to be performed
and observed with respect to each of the Assigned Leases;
(h) that it will, upon written request by the Assignee, serve such
written notices upon any lessee under any Assigned Lease or any other occupant
of any portion of the Mortgaged Premises concerning this assignment, or include
among the written provisions of any instrument hereafter creating any such
lease, sublease, tenancy or right of occupancy specific reference to this
assignment, and make, execute and deliver all such powers of attorney,
instruments of pledge or assignment, and such other instruments or documents as
the Assignee may reasonably request at any time for the purpose of securing its
rights hereunder; and
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(i) that it will furnish to the Assignee, on demand, true copies of
all Assigned Leases hereafter executed and true copies of each document
effecting the renewal, amendment or modification of any Assigned Lease;
(j) that it will not enter into any lease with respect to the
Mortgaged Premises without first obtaining Assignee's written approval of the
terms and conditions thereof and of the prospective lease thereunder, which
approval shall not be unreasonably withheld;
(k) that it will promptly notify Assignee of any extension or renewal
of any Assigned Lease;
(l) that, upon Assignee's request, from time to time, it will provide
Assignee with a rent roll, dated as of the end of such fiscal quarter and
certified as correct by the chief financial officer of Assignor, stating with
respect to each lease of the Mortgaged Premises, or any portion thereof, the
name of the tenant thereof, the rent paid by such tenant, the date to which such
rent is paid, the date on which the tenant's leasehold interest terminate and
the amount held by Assignor by way of security deposit from each such tenant;
(m) that it will not enter into any agreement with any management
agent or firm with respect to the Mortgaged Premises unless such agent or firm
first agrees with Assignee to recognize Assignee's rights under this Collateral
Assignment of Leases and Rents and further agrees, upon an occurrence of an
event of default, to transfer all rents received by such agent or firm directly
to Assignee upon Assignee's demand therefor.
4. Indemnification.
4.1 The Assignor hereby agrees to indemnify and hold the Assignee harmless
against and from (a) any and all liability, loss, damage and expense, including
reasonable attorneys' fees, which it may or shall incur or which may be asserted
under or in connection with any of the Assigned Leases, or by reason of any
breach of the Obligations, or by reason of any action taken or reasonable
expenses incurred or paid by the Assignee under this Collateral Assignment of
Leases and Rents or under any of the Obligations (including without limitation
any action which the Assignee in its discretion may take to protect its
interests in the Mortgaged Premises), and (b) any and all claims and demands
whatsoever which may be incurred by or asserted against the Assignor by reason
of any alleged obligations or undertaking on its part to perform or discharge
any of the terms, covenants and conditions contained in any of the Assigned
Leases. Assignee shall give prompt notice to Assignor of any claims made against
Assignee. Assignor shall not be required to indemnify Assignee with respect to
matter arising from Assignee's willful misconduct or gross negligence.
4.2 Should the Assignee incur any such liability as described in Section
4.1, the amount thereof, together with interest thereon at the rate as set forth
in the Note shall be payable by the Assignor to the Assignee within fifteen (15)
days of demand, or at the option of the
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Assignee, the Assignee may reimburse itself therefor out of any rents, issues or
profits of the Mortgaged Premises collected by the Assignee.
4.3 Nothing contained herein shall operate or be construed to obligate the
Assignee to perform any of the terms covenants or conditions contained in any
Assigned Lease, or to take any measures, legal or otherwise, to enforce
collection of any of said rents or other payments, or otherwise to impose any
obligation upon the Assignee with respect to any of said leases, including but
not limited to, any obligation arising out of any covenant of quiet enjoyment
therein contained, in the event that any lessee shall have been joined as a
party defendant in any action to foreclose the Mortgage and the estate of such
lessee shall have been thereby terminated.
4.4 Prior to actual entry into any taking possession of the Mortgaged
Premises by the Assignee, this Assignment shall not operate to place upon the
Assignee any responsibility for the operation, control, care, management or
repair of the Mortgaged Premises, and the execution of this assignment by the
Assignor shall constitute conclusive evidence that all responsibility of the
operation, control, care, management and repair of the Mortgaged Premises is and
shall be that of the Assignor prior to such actual entry and taking of
possession.
5. Exercise of Remedies. Failure of the Assignee to avail itself of any of
the terms, covenants and conditions of this assignment for any period of time,
or at any time or times, shall not be construed or deemed to be a waiver of any
of its rights hereunder. The rights and remedies of the Assignee under this
assignment are cumulative and are not in lieu of but are in addition to any
other rights and remedies which the Assignee shall have under or by virtue of
any other of the Obligations. The rights and remedies of the Assignee hereunder
may be exercised from time to time and as often as such exercise is deemed
expedient.
6. Termination of this Assignment. Upon payment in full of all of the
indebtedness secured by the Mortgage, as evidenced by a recorded satisfaction or
release of the Mortgage, as well as any sums which may be payable hereunder,
this assignment shall become and be void and of no effect and, in that event,
upon the request of the Assignor and at its expense, the Assignee covenants to
execute and deliver to the Assignor instruments effective to evidence the
termination of this assignment and/or the reassignment to the Assignor of the
rights, powers and authority granted herein.
7. Notice. Any notice, demand, request or other communication given
hereunder or in connection herewith (hereinafter "Notices") shall be deemed
sufficient if in writing and sent by certified mail, postage prepaid, return
receipt requested, address to the party to receive such Notice at its address
first set forth above or at such other address as such party may hereafter
designate by Notice given in like fashion. Notices shall be deemed given when
mailed. Notwithstanding the foregoing, routine communications such as
ordinary distribution checks, copies of documents, etc. may be sent by
ordinary first class mail.
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8. Miscellaneous Provisions.
8.1 Wherever the context so requires, reference herein to the neuter gender
shall include the masculine and/or feminine gender, and the singular number
shall include the plural.
8.2 This assignment shall be construed and enforced in accordance with and
governed by the laws of the State of New Hampshire.
8.3 No charge, amendment, modification, cancellation or discharge hereof,
or of any part hereof, shall be valid unless the Assignee shall have consented
thereto in writing.
8.4 In the event there is any conflict between the terms and provisions of
the Mortgage and the terms and provisions of this assignment, the terms and
provisions of this assignment shall prevail.
8.5 The terms, covenants, and conditions contained herein shall inure to
the benefit of, and bind the Assignee and the Assignor and their respective
successors and assigns or heirs, executors, administrators, successors and
assigns, as the case may be.
8.6 The captions of this assignment are for convenience and reference only
and neither in any way define, limit, or describe the scope or interest of this
assignment nor in any way affect this assignment.
IN WITNESS WHEREOF, the Assignor has caused these presents to be executed
by its duly authorized officer, on the day and year first above written.
Xxxxxxx & Yale, Inc.
/s/ By:
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Witness /s/ Xxxxx Xxxxx Xxxxxxx
Xxxxx Xxxxx Xxxxxxx
Vice President, Finance
STATE OF NEW HAMPSHIRE
COUNTY OF HILLSBOROUGH August 29, 1996
Personally appeared Xxxxx Xxxxx Xxxxxxx, in her capacity as Vice President,
Finance, of Xxxxxxx & Yale, Inc., known to me or satisfactorily proven to be the
person whose name is subscribed to the foregoing instrument and acknowledged
that he executed the same for the purposes therein contained on behalf of
Xxxxxxx & Yale, Inc.
Before me, By
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/s/ Justice of the Peace
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