COLLATERAL ASSIGNMENT OF LEASES AND RENTS
Exhibit
10.24
THIS ASSIGNMENT made the 13th day of
February, 2009, by FLOTATION TECHNOLOGIES, INC., a Maine corporation, having a
mailing address of 00 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx 00000, (hereinafter
referred to as the "Assignor") to TD BANK, N.A., a corporation organized under
the laws of the United States of America and having an address of Xxx Xxxxxxxx
Xxxxxx, X.X. Box 9540, Portland, Maine 04112-9540 (hereinafter referred to as
the "Assignee").
W I T N E S S E T
H:
That the Assignor for One Dollar and
other good and valuable consideration, receipt of which is hereby acknowledged,
hereby grants, transfers and assigns to the Assignee the entire lessor's
interest in and to any and all leases and tenancy at will agreements now in
existence or subsequently entered into by the Assignor with reference to
improvements on the real property covered by the Mortgage referred to herein
(collectively the "Leases", which term as here and hereinafter used shall be
construed to include the singular and plural thereof if the context so
requires);
TOGETHER with all rents, income,
profits and security deposits, if any, arising from said Leases, renewals and
extensions thereof and together with all rents, income, profits and security
deposits, if any, for the use and occupation of the premises described in said
Leases or in the Mortgage hereinafter referred to and, all rents, income,
profits, and security deposits, if any, arising from all Leases upon said
premises which may be executed in the future during the term of this
Assignment. For purposes of this Assignment, rents, income and
profits shall include, without limitation, (i) the right to receive and collect
all rents, income, revenues, issues, profits, insurance proceeds, condemnation
awards, moneys and security payable or receivable under said Leases or pursuant
to any provisions thereof, (ii) the right to make all waivers and agreements,
(iii) the right to give all notices, consents and releases, (iv) the right to
take action upon the happening of a default under any Lease or by law or in
equity, and (v) the right to do any and all other things whatsoever which
Assignor or any lessor is or may be entitled to do under any Lease.
Assignor covenants and agrees that any
and all future Leases, including amendments, extensions and renewals of existing
and future Leases, of all or any part of the said premises shall require the
approval of the Assignee to be effective, which approval shall not be
unreasonably withheld, and provided that this paragraph shall not affect the
rights or obligations of any third parties except at the option of
Assignee.
THIS
ASSIGNMENT shall constitute a second priority assignment, made for the purposes
of securing the payment and performance of a certain Commercial Note dated
February 13, 2009, given by Assignor to Assignee, in the original principal
amount of $2,160,000.00 in accordance with all the terms and conditions of the
Loan Documents as such term is defined in the Mortgage and Security Agreement
from Assignor to Assignee, of even date and securing the above amount, to be
recorded in the York County Registry of Deeds herewith (the "Mortgage"), on real
property situated at 00 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx Xxxxxx, Xxxxx, and more
particularly described in Schedule A attached hereto, which may include further
advances or future obligations of Assignor to Assignee pursuant to Loan
Documents hereafter executed by Assignor as described in paragraph 8 of the
Mortgage. Any such future obligations which are secured by the
Mortgage shall also automatically be secured hereby.
THE ASSIGNOR WARRANTS that the Assignor
is and shall be the sole owner of the entire lessor's interest in said Leases;
that said Leases are and shall be valid and enforceable and have not been and
will not be altered, modified or amended in any manner whatsoever except as
herein set forth; that the lessees named therein are not and shall not be in
default under any of the terms, covenants or conditions thereof; that no rent
reserved in said Leases has been or shall be assigned or anticipated except as
contemplated herein and that no rent for any period subsequent to the date of
this Assignment has been or will be collected more than one month in advance of
the time when the same became or becomes due under the terms of said
Xxxxx.
THE ASSIGNOR COVENANTS with the
Assignee to observe and perform all the obligations imposed upon the lessor
under said Leases and not to do or permit to be done anything to impair the
security thereof; not to collect any of the rent, income and profits arising or
accruing under said Leases or from the premises described in said Mortgage more
than one month in advance of the time when the same shall become due; not to
execute any other assignment of lessor's interest in said Leases or assignment
of rent arising or accruing from said Leases or from the premises described in
said Mortgage; not to subordinate any Lease to any mortgage or other encumbrance
or permit, consent or agree to such subordination without the Assignee's prior
written consent; not to alter, modify or change the terms of any Lease or give
any consent or approval or exercise any option required or permitted by such
terms without the prior written consent of the Assignee, or cancel or terminate
any Lease or accept a surrender thereof or convey or transfer or suffer or
permit a conveyance or transfer of the premises demised thereby or of any
interest therein so as to effect directly or indirectly, proximately or remotely
a merger of the estates and rights of, or a termination or diminution of the
obligations of, lessee thereunder; not to waive or release any rights of lessor
under any Lease; not to accept abandonment or vacation of any premises demised
by any Lease; not to enter into any future lease of the real property which is
the subject of the Mortgage without the prior written consent of the Assignee;
not to alter, modify or change the terms of any guaranty of any Lease or cancel
or terminate any such guaranty without the prior written consent of the
Assignee; not to consent to any assignment of or subletting under any Lease,
unless in accordance with its terms, without the prior written consent of the
Assignee. The Assignor further covenants and agrees that any of the
foregoing acts referred to in this paragraph, if done without the prior written
consent of the Assignee, shall be null and void.
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The Assignor further covenants with the
Assignee: to enforce all of the obligations of each lessee under the Leases; to
exercise, in a manner satisfactory to the Assignee, any rights and remedies
available to the Assignor or lessor under the Leases upon default by any lessee
thereunder; to exercise any option available to the Assignor as lessor under the
Leases at the request of the Assignee; and to execute such further and
additional assignments and other instruments as the Assignee shall from time to
time require to confirm or perfect its rights and remedies hereunder, including,
without limitation, further confirmations of the assignment of any Lease to
Assignee.
In the event the Assignor shall default
in any of the obligations imposed upon lessor under any Lease, the Assignee
shall have the right, but not the obligation to cure the same, and all expenses
incurred by the Assignee in connection therewith shall become a debt of the
Assignor secured hereby and by said Mortgage.
THIS ASSIGNMENT is made on the
following terms, covenants and conditions:
1. So
long as there shall exist no default by the Assignor in the payment or
performance of any of the Obligations (a "Default" hereunder), the Assignor
shall have the right to collect not more than one month before the date provided
for the payment thereof, all rents, income and profits arising under the Leases
or from the premises described therein and to retain, use and enjoy the
same.
2. Upon
or at any time after a Default, the Assignee without in any way waiving such
Default may at its option without notice and without regard to the adequacy of
the security for the principal sum, interest and indebtedness secured hereby and
by said Note and Mortgage, either in person or by agent, with or without
bringing any action or proceeding, or by a receiver appointed by a court, take
possession of the premises described in the Leases and the Mortgage and have,
hold, manage, lease and operate the same on such terms and for such period of
time as the Assignee may deem proper, and either with or without taking
possession of said premises or holding, managing, leasing and operating in its
own name, demand, sue for or otherwise collect and receive all rents, income and
profits of said premises, including those past due and unpaid with full power to
make from time to time all alterations, renovations, repairs or replacements
thereto or thereof as may seem proper to the Assignee and to apply such rents,
income and profits to the payment of: (a) all expenses of managing
the premises, including, without being limited thereto, the salaries, fees and
wages of a managing agent and such other employees of the Assignee may deem
necessary or desirable and all expenses of operating and maintaining the
premises, including, without being limited thereto, all taxes, charges, claims,
assessments, water rents, sewer rents and any other liens, and premiums for all
insurance which the Assignee may deem necessary or desirable, and the cost of
all alterations, renovations, repairs or replacements, and all expenses incident
to taking and retaining possession of the premises; and (b) the payment or
performance of any of the Obligations, together with all costs and attorneys'
fees, in such order of priority as to any of the items mentioned in this
paragraph as the Assignee in its sole discretion may determine, any statute,
law, custom or use to the contrary notwithstanding. The exercise by
the Assignee of the option granted it in this paragraph and the collection of
the rents, income and profits and the application thereof as herein provided
shall not be considered a waiver of any Default or of any default by the
Assignor arising hereunder or under the Note or Mortgage or other Loan
Documents. Exercise of any rights of the Assignee under this
paragraph shall not be considered to be a waiver of any other rights of the
Assignee hereunder; in particular, but without limitation, the Assignee's
exercise of its rights to collect and receive rents, income and profits shall
not preclude the Assignee from later electing to take possession of the premises
hereunder, nor shall the Assignee's exercise of its rights with respect to any
particular Lease or portion of the said premises (which exercise shall be
expressly permitted, at the Assignee's option) preclude the Assignee from later
electing to exercise its rights with respect to other Leases or portions of the
premises subject hereto.
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3. The
Assignee shall not be liable for any loss sustained by the Assignor resulting
from the Assignee's failure to let the premises after Default or from any other
act or omission of the Assignee in managing the premises after Default unless
such loss is caused by the willful misconduct and bad faith of the
Assignee. The Assignee shall not be obligated to perform or discharge
nor does the Assignee hereby undertake to perform or discharge any obligation,
duty or liability under the Leases or under or by reason of this Assignment and
the Assignor shall, and does hereby agree, to indemnify the Assignee for, and to
hold the Assignee harmless from, any and all liability, loss or damage,
including attorneys' fees, which may or might be incurred under the Leases or
under or by reason of this Assignment and from any and all claims and demands
whatsoever which may be asserted against the Assignee by reason of any alleged
obligations or undertakings on its part to perform or discharge any of the
terms, covenants or agreements contained in any Lease. Should the
Assignee incur any such liability under any Lease or under or by reason of this
Assignment or in defense of any such claims or demands, the amount thereof,
including costs, expenses and attorneys' fees shall be secured hereby and the
Assignor shall reimburse the Assignee therefor immediately upon demand and upon
the failure of the Assignor so to do the Assignee may, at its option, declare
all sums secured hereby and by said Note and Mortgage immediately due and
payable. And it is further understood that this Assignment shall not
operate to place responsibility for the control, care, management or repair of
said premises upon the Assignee, nor for the carrying out of any of the terms
and conditions of any Lease; nor shall it operate to make the Assignee
responsible or liable for any waste committed on the property by the tenants or
any other parties, or for any dangerous or defective condition of the premises,
or for any negligence in the management, upkeep, repair or control of said
premises resulting in loss or injury or death to any tenant, licensee, employee
or stranger.
4. Upon
payment in full of the principal sum, interest and indebtedness secured hereby
and by said Note and Mortgage this Assignment shall become and be void and of no
effect but the affidavit, certificate, letter or statement of any officer, agent
or attorney of the Assignee showing any part of said principal, interest or
indebtedness to remain unpaid shall be and constitute conclusive evidence of the
validity, effectiveness and continuing force of this Assignment and any person
may, and is hereby authorized to, rely thereon. The Assignor hereby
authorizes and directs the lessees named in the Leases or any other or future
lessee or occupant of the premises described therein or in said Mortgage upon
receipt from the Assignee of written notice to the effect that the Assignee is
then the holder of said Note and that a Default exists hereunder to pay over to
the Assignee all rents, income and profits arising or accruing under said Lease
or from the premises described therein or in said Mortgage and to continue so to
do until otherwise notified by the Assignee.
5. The
Assignee may take or release other security for the payment of said principal
sum, interest and indebtedness, may release any party primarily or secondarily
liable therefor and may apply any other security held by it to the satisfaction
of such principal sum, interest or indebtedness without prejudice to any of its
rights under this Assignment.
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6. The
term "lease" or "said lease" as used herein means the lease(s) and rental
agreement(s) hereby assigned or, at the option of the Assignee, any extension or
renewal thereof and any Lease(s) subsequently executed during the term of this
assignment covering the premises described in any lease or in the Mortgage or
any part thereof.
7. Nothing
contained in this Assignment and no act done or omitted by the Assignee pursuant
to the powers and rights granted it hereunder shall be deemed to be a waiver by
the Assignee of its rights and remedies under the Note, Mortgage or any other
Instrument, and this Assignment is made and accepted without prejudice to any of
the rights and remedies possessed by the Assignee under the terms of the Note
and Mortgage and any other Instrument. The right of the Assignee to
collect said principal sum, interest and indebtedness and to enforce any other
security therefor held by it may be exercised by the Assignee either prior to,
simultaneously with, or subsequent to any action taken by it
hereunder.
8. Notwithstanding
any provision hereof to the contrary, the Assignor agrees that the Assignee, and
not the Assignor, shall be and is deemed to be the creditor of each lessee under
each Lease in respect of any sums of money which may be payable by a lessee
under the Lease on account of a default by the lessee under such Lease,
including, without limitation, any damages or further rentals payable by such
lessee on account of or after such default, and in respect of all assignments
for the benefit of creditors and bankruptcy, reorganization, insolvency,
dissolution or receivership proceedings affecting any lessee under such Lease
(without obligation on the part of the Assignee, however, to file or make timely
filings of claims in such proceedings or otherwise to pursue creditor's rights
thereon), with an option to the Assignee to apply any money received or
receivable by the Assignee as such creditor, whether or not a default under said
Note, Mortgage, other Instrument, or other security instrument now or hereafter
securing payment of said Note, the order of application of such money to such
indebtedness being in the sole and uncontrolled discretion of the
Assignee.
9. In
case of any conflict between the terms of this Assignment and the terms of the
Mortgage described above, the terms of the Mortgage shall prevail.
THIS ASSIGNMENT, together with the
covenants and warranties therein contained, shall inure to and be binding upon
the Assignee and any subsequent holder of the Note and Mortgage and the
Assignor, their heirs, executors, administrators, successors and assigns and any
subsequent owner of the mortgaged premises.
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IN WITNESS WHEREOF, the Assignor have
duly executed this instrument, under seal, as of the day and year first
above.
| WITNESS: | FLOTATION TECHNOLOGIES, INC. | |
| By: /s/ Xxxxx Xxxxxxxxx | ||
|
Xxxxx
Xxxxxxxxx
Its
President
|
STATE OF
MAINE
York,
ss.
Upon this 13th day of February, 2009,
then before me personally appeared the above-named Xxxxx Xxxxxxxxx, President of
Flotation Technologies, Inc., and acknowledged the foregoing instrument to be
their free act and deed in his said capacity and the free act and deed of said
corporation.
| /s/ Xxxxx X. Xxxxx | |
|
Attorney
at Law
Xxxxx
X. Xxxxx, Maine Bar No. 710
|
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Schedule
A
Two
certain lots or parcels of land, together with improvements thereon, situated in
Biddeford on the westerly side of Xxxxx Street, Biddeford, York County, Maine
being more particularly bounded and described as follows:
Parcel I
BEGINNING at a found iron rod
located on the westerly sideline of Xxxxx Street, said iron rod marking the
southeasterly corner of lot 9 and the northeasterly corner of Lot 8 as shown on
a "Plan of the Biddeford Industrial Park, Biddeford, Maine by Xxxxx Engineering,
Inc.,” dated July 1, 1977, approved by the Biddeford Planning Board on July 1,
1977 and recorded with the York County Registry of Deeds in Plan Book 87, Page
37 (“1977 Plan”) and as shown on a plan entitled “Subdivision Amendment of Lots
8 & 9” prepared by Xxxx X. Xxxxxxx Engineering and Surveying Company,
approved by the City of Biddeford Planning Department on July 2, 2008, and
recorded with the York County Registry of Deeds in Plan Book 330, Page 32 (“2008
Plan”);
THENCE
running N 85° 44' 00’’ W a distance of 442.63 feet to an iron rod at land now or
formerly of the Boston & Maine Railroad;
THENCE
turning and running in a general northeast direction along a curve to the right,
by said land of the Boston & Maine Railroad, a distance of 345.77 feet to an
iron rod and land now or formerly of Correct Holdings, LLC, as shown on the 2008
Plan;
THENCE
turning and running S 84° 49' 00” E a distance of 473.54 feet to an iron rod at
the northwesterly sideline of said Xxxxx Street;
THENCE S
5° 11' 00” W, along said Xxxxx Street, a distance of 337.07 feet to found iron
rod and the point of BEGINNING.
Meaning
and intending to describe Lot 9 as shown on a "Plan of the Biddeford Industrial
Park, Biddeford, Maine by Xxxxx Engineering, Inc., dated July 1, 1977, approved
by the Biddeford Planning Board on July 1, 1977 and recorded in the York County
Registry of Deeds in Plan Book 87, Page 37.
Parcel I
is subject to:
Such
state of facts disclosed on the Plan of Biddeford Industrial Park, Biddeford,
Maine prepared by Xxxxx Engineering, Inc. dated July 1, 1977, and recorded in
the York County Registry of Deeds in Plan Book 87, Page 37.
Terms,
conditions and restrictions set forth in the deed from the City of Biddeford to
V. P. Winter Distributing Co. dated February 15, 1984, and recorded in said
Registry of Deeds in Book 3245, Page 194, as said terms were amended by an
Amendment to Covenants to Biddeford Industrial Park dated June 14, 1999, and
recorded in the York County Registry of Deeds in Book 9535, Page 24 and dated
October 26, 2001, and recorded in said Registry in Book 11083, Page
45.
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Rights
and easements granted to Central Maine Power Company and New England Telephone
and Telegraph Company by instrument dated June 4, 1984, and recorded in said
Registry of Deeds in Book 3351, Page 57.
Title
reference for Parcel I is made by a Deed from The Xxxxx Realty Group, LLC to
Flotation Technologies, Inc. dated August 21, 2007, and recorded in the York
County Registry of Deeds in Book 15242, Page 311.
Parcel
II
BEGINNING at a found iron rod
located on the westerly sideline of Xxxxx Street, said iron rod marking the
southeasterly corner of land conveyed to Flotation Technologies, Inc., by deed
recorded in the York County Registry of Deeds in Book 15242, Page
311;
THENCE
running S 05°-11’ 00” W along the westerly sideline of said Street a distance of
5.29 feet to an iron rod to be set;
THENCE
turning and running S 76° 08’ 34” W along remaining land now or formerly of
Xxxxx Maine, LLC a distance of 448.41 feet to an iron rod to be set on the
easterly sideline of land of Boston and Maine Rail Road;
THENCE
turning and running N 03° 16’ 00” W along the easterly sideline of said Rail
Road land a distance of 23.13 feet to a point;
THENCE
turning and running N 01° 59’ 00” W continuing along the easterly sideline of
said Rail Road land a distance of 122.58 feet to a point located on the
southerly sideline of land now or formerly of Flotation
Technologies;
THENCE
turning and running S 85° 44’ 00” E along the southerly sideline of said
Flotation Technologies land a distance of 89.88 feet to a found iron
rod;
THENCE
turning and running S 85° 44’ 00” E continuing along the southerly sideline of
said Flotation Technologies land a distance of 352.75 feet to the found iron rod
and the point of BEGINNING.
The above
described parcel containing 33,450 square feet, more or less. The bearings were
derived from the 1977 Plan.
SUBJECT TO a drainage easement for the
benefit of remaining land now or formerly of Xxxxx Maine, LLC and being more
particularly described as follows:
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BEGINNING at a point located
on the easterly sideline of said Rail Road land, said point marking the
southwesterly corner of Lot # 9 as shown on said Plan;
THENCE
turning and running S 85° 44’ 00” E along the southerly
sideline of Flotation Technologies land a distance of 16.88 feet to a
point,
THENCE
turning and running S 33° 04’ 44” E a distance of 145.55 feet to a
point;
THENCE
turning and running S 76° 08’ 34” W a distance of 93.43 feet to an iron rod to
be set on the easterly sideline of said Rail Road land;
THENCE
turning and running N 03° 16’ 00” W along the easterly sideline of said Rail
Road land a distance of 23.13 feet to a point;
THENCE
turning and running N 01° 59’ 00” W continuing along the
easterly sideline of said Rail Road land a distance of 122.58 feet to the point
of BEGINNING.
Title reference for Parcel II is made
to a parcel of land conveyed to Flotation Technologies, Inc, from Xxxxx Maine,
LLC dated July 31, 2008 and recorded in the York County Registry of Deeds in
Book 15478, Page 749.
The above
described Parcels I and II are depicted as Lot 9 on a plan entitled “Subdivision
Amendment of Lots 8 & 9” prepared by Xxxx X. Xxxxxxx Engineering and
Surveying Company, approved by the City of Biddeford Planning Department on July
2, 2008, and recorded with the York County Registry of Deeds in Plan Book 330,
Page 32.
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