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EXHIBIT 10(o)
COLLATERAL ASSIGNMENT OF LEASE
THIS COLLATERAL ASSIGNMENT OF LEASE (this "Assignment") is made
as of September 1, 1998, by and among (i) SOFTWARE ACQUISITION CORPORATION, a
Delaware corporation (collectively with successors and assigns, "Assignor") and
(ii) ALLIED CAPITAL CORPORATION, a Maryland corporation (collectively with
successors and assigns, "Assignee ").
RECITALS
A. Under a certain Office Lease dated December 18, 1997 (collectively with all
extensions, renewals, replacements and modifications thereof and therefore, the
"Lease") 3000 Coliseum Investors L.L.C. as lessor demised and let to Assignor a
portion of lessor's building being a part of the premises situated at 0000 Xxxx
Xxxxxxxx Xxxxxxxxx, Xx. Xxxxx, Xxxxx County, Indiana;
B. Assignee has made and proposes to make certain loans to Assignor's affiliate
Enterprise Software, Inc., a Delaware corporation formerly named IndeNet, Inc.
Such loans, will have an aggregate principal amount of Fifteen Million Dollars
($15,000,000), will be evidenced by two (2) subordinated debentures
(collectively with all modifications, extensions, renewals and replacements
thereof and therefor, the "Debentures"), and are being made pursuant to an
Investment and Loan Agreement between Enterprise Software, Inc. and Assignee
dated March 26, 1998, (collectively with all modifications, extensions,
renewals and replacements thereof and therefor, the "Agreement"). One of the
conditions of such Agreement is that Assignor assign the Lease to Assignee, with
the right to reassign, as security for the obligations owed to Assignee.
PROVISIONS
1. In consideration of the premises and for the consideration
recited therein, the Assignor hereby assigns, transfers and sets over unto
Assignee with the right to reassign, all of its right, title and interest in and
under the Lease and in and to the subject premises, as collateral security for
payment of the Debentures, all obligations of Assignor under the Agreement, and
all other debts of Assignor to Assignee including, without limitation, all loans
and extensions of credit Assignee may, in its discretion, extend to Assignor in
the future; it being nevertheless expressly agreed that this assignment is made
and is consented to by the Landlord upon the terms and conditions set out below.
2. The Assignor shall retain right to possession of the
premises in accordance with the terms and conditions in the Lease until a
default occurs under the Debentures, the Agreement or under the Lease;
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3. If a default occurs under the Debenture, the Agreement or the
Lease, Assignee may, at its option, by written notice to Landlord, and Assignor,
assume the Lease and enjoy the specified use of the subject premises. Upon
exercise of such option, Assignee shall be deemed to be substituted as the
tenant under the Lease in the place and stead of Assignor, shall be deemed to
have assumed expressly all of the terms, covenants and obligations of the Lease
theretofore applicable to Assignor and shall likewise be entitled to enjoy all
rights and privileges granted to Assignor under the Lease, according to its
terms;
4. If a default occurs under the Debenture, the Agreement or the
Lease, Assignee shall have the right to reassign, by public or private sale
conducted according to the terms of the Uniform Commercial Code in force in the
relevant jurisdiction, all its rights herein to the Lease and to enjoy the
specified use of the subject premises. Upon any such reassignment, the new
tenant shall promptly cure any breaches of the Lease by Assignor to the extent
such cure can be effected by payment of money, and shall expressly assume all
terms, covenants and obligations of the Lease theretofore applicable to
Assignor; whereupon such new tenant shall be entitled to enjoy all rights and
privileges granted to Assignor under the Lease, according to its terms; and
5. Assignor shall be liable to Assignee for all payments by
Assignee for rent and other Lease obligations to cure defaults of Assignor in
respect thereto; and Assignor's liability for such sums shall be secured by all
security interests securing the Debenture and shall bear interest at the
interest rate provided in the Debenture. The parties acknowledge that such
payments are reasonable expenses of foreclosure; and
6. ASSIGNOR WAIVES ALL RIGHT TO TRIAL BY JURY OF ALL CLAIMS
DEFENSES, COUNTERCLAIMS AND SUITS OF ANY KIND ARISING FROM OR RELATING TO THIS
ASSIGNMENT OR THE DEALINGS OF THE PARTIES IN RESPECT HERETO. ASSIGNOR
ACKNOWLEDGES AND AGREES THAT THIS PROVISION IS A MATERIAL TERM OF THIS
ASSIGNMENT AND THAT ASSIGNEE WOULD NOT EXTEND ANY FUNDS UNDER THE AGREEMENT IF
THIS WAIVER OF JURY TRIAL WERE NOT A PART HEREOF. ASSIGNOR ACKNOWLEDGES THAT
THIS IS A WAIVER OF A LEGAL RIGHT AND THAT IT MAKES THIS WAIVER VOLUNTARILY AND
KNOWINGLY AFTER CONSULTATION WITH, OR THE OPPORTUNITY TO CONSULT WITH, COUNSEL
OF ITS CHOICE. ASSIGNOR AGREES THAT ALL SUCH CLAIMS, DEFENSES, COUNTERCLAIMS
AND SUITS SHALL BE TRIED BEFORE A JUDGE OF A COURT OF COMPETENT JURISDICTION,
WITHOUT A JURY.
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IN WITNESS WHEREOF, the parties hereto have executed this
Assignment as of the date first above written.
Assignor:
[Seal] SOFTWARE ACQUISITION CORPORATION
By: Xxxxxx A: Xxxx
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Name: Xxxxxx A: Xxxx
Title: President
Assignee:
[Seal] ALLIED CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Principal
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STATE OF MICHIGAN )
) TO WIT:
COUNTY OF XXXXX )
I hereby certify that on this day, before me, an officer duly
authorized in the State and County aforesaid to take acknowledgments, personally
appeared Xxxxxx X. Xxxx, well known to me as the President of the corporation
named as Assignor in the foregoing document, and that he acknowledged executing
the same freely and voluntarily under authority duly vested in him by said
corporation and that the seal affixed thereto is the true and corporate seal of
said corporation.
WITNESS my hand and seal this 28 day of August, 1998.
Seal:
My commission expires:____________ /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Notary Public
XXXXX X. XXXXXXX
Notary Public, Xxxxx Co., MI
My Comm. Expires Nov. 30, 2001
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DISTRICT )
OF ) TO WIT:
COLUMBIA )
Personally appeared before me, a Notary Public in and for the
jurisdiction aforesaid, Xxxxx X. Xxxxxx, known to me as the Principal of
Assignee Allied Capital Corporation, who acknowledged the foregoing as the true
act and deed of Assignee this 31 day of August, 1998.
[Seal] Xxxxxx Xxxxxxx
---------------------
Notary Pubic
My commission expires: 10/31/02
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Lessor's Consent to Collateral Assignment of Lease
The undersigned party, as lessor under the Lease described in the
foregoing document, hereby agrees as set out below. Capitalized terms not
otherwise defined herein shall have the definitions provided in foregoing
document.
1. Lessor consents to the assignment of the Lease to Assignee
under the terms of the foregoing document. So long as Assignee shall not have
occupied the subject premises under the foregoing provisions, Assignee shall not
be liable for rent or any other obligations under the Lease; in any case,
Assignor shall remain liable for such rent and obligations. Exercise by Assignee
of its right to occupy the subject premises shall not release any claim by
Lessor against Assignor for rent or other Lease payments for periods prior to
such exercise.
2. Lessor will give Assignee notice of and the right cure any
default under the Lease, in the same manner and at the same time provided in
the Lease to Assignor. Otherwise, nothing in this Consent shall impair or delay
Lessor's right to terminate the Lease upon default by any lessee.
3. Lessor affirms that a) it is the lessor under the Lease,
and b) to the knowledge of Lessor, Assignor is not in breach of the Lease.
IN WITNESS WHEREOF, the undersigned executes this Consent as
the date set out below.
3000 COLISEUM INVESTORS L.L.C.
By: ______________________________
Name: ____________________________
Title: ___________________________
Date: _____________ _____ , 1998
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STATE OF )
) TO WIT:
COUNTY OF )
I hereby certify that on this day, before me, an officer duly
authorized in the State and County aforesaid to take acknowledgments, personally
appeared ________________________, made known to me as the ____________________
of the company named as Lessor in the foregoing document, and that he/she
acknowledged executing the same freely and voluntarily under authority duly
vested in him by said company, and that the seal affixed thereto is the true
and corporate seal of said company.
WITNESS my hand and seal this ______ day of _______________, 1998.
Seal:
My commission expires:________________ __________________________
Notary Public
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