EXHIBIT 10.16
COLLATERAL ASSIGNMENT OF LOCATION LEASES
COLLATERAL ASSIGNMENT OF LEASES ("Assignment") dated as of January 25,
2002 by COINMACH CORPORATION, a Delaware corporation ("Assignor") in favor of
BANKERS TRUST COMPANY, a New York banking corporation, having an office at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in its capacity as collateral agent
(in such capacity and together with any successor in such capacity, the
"Collateral Agent") for the Secured Creditors (as hereinafter defined).
R E C I T A L S :
- - - - - - - -
X. Xxxxxxxx, Coinmach Laundry Corporation, certain subsidiaries of
Assignor, the lenders (the "Banks") from time to time party thereto, Bankers
Trust Company, as Administrative Agent (in such capacity and together with any
successor, the "Administrative Agent") and Collateral Agent, Deutsche Banc Xxxx.
Xxxxx Inc., as Lead Arranger and Book Manager (in such capacities and together
with any successors in such capacities, the "Lead Arranger and Book Manager"),
X.X. Xxxxxx Securities Inc. and First Union Securities Inc., as Syndication
Agents (together with any successor, the "Syndication Agents") and Credit
Lyonnais New York Branch, as Documentation Agent (in such capacity and together
with any successors in such capacity, the "Documentation Agent"), have entered
into a Credit Agreement, dated as of the date hereof, providing for the making
of Loans and the issuance of and participation in, Letters of Credit, as
contemplated therein (such agreement, as amended, modified, extended, renewed,
replaced, restated or supplemented from time to time, and including any
agreement extending the maturity of, or restructuring all or any portion of the
Indebtedness under such agreement or any successor agreement, the "Credit
Agreement"). Except as otherwise defined herein, all capitalized terms used
herein and defined in the Credit Agreement shall be used herein as so defined.
B. Assignor is, or is the successor in interest to, the lessee under
those certain leases (individually, a "Lease"; collectively, the "Leases"), a
complete list of which is attached as Exhibit A hereto, with the respective
lessors (individually, a "Lessor"; collectively, the "Lessors") thereto. The
Leases pertain to the properties (the "Premises") which are described on Exhibit
B hereto.
C. Assignor may at any time and from time to time enter into, or
guarantee obligations of its Subsidiaries under, one or more Interest Rate
Protection Agreements or Other Hedging Agreements with one or more Other
Creditors (as hereinafter defined).
D. It is a condition to each of the above-described extensions of
credit to the Assignor that the Assignor shall have executed and delivered this
Assignment.
E. This Assignment is made by Assignor in favor of the Collateral Agent
for the benefit of (x) the Banks, the Administrative Agent, the Syndication
Agent, Lead Arranger and Book Manager, the Collateral Agent, the Documentation
Agent and any other lenders from time to time party to the Credit Agreement
(collectively, the "Bank Creditors") and (y) if one or more Banks or any
Affiliate of a Bank enters into one or more Interest Rate Protection Agreements
or Other Hedging Agreements from time to time, with, or guaranteed by Assignor,
-1-
any such Bank or Banks or any Affiliate or Affiliates of such Bank or Banks
(even if the respective Bank subsequently ceases to be a Bank under the Credit
Agreement for any reason) so long as any such Bank or Affiliate participates in
the extension of such Interest Rate Protection Agreement or Other Hedging
Agreement and their subsequent assigns, if any, (collectively, the "Other
Creditors"; together with the Bank Creditors, the "Secured Creditors"). This
Assignment is given to Collateral Agent to secure the Obligations (as defined in
that certain Security Agreement dated as of the date hereof among the Assignor,
the Subsidiary Guarantors and the Collateral Agent for the benefit of the
Secured Creditors, as may be amended, modified or Supplemented from time to
time, the "Security Agreement").
A G R E E M E N T :
- - - - - - - - -
Assignor and Collateral Agent hereby agree as follows:
1. ASSIGNMENT. Assignor hereby transfers and assigns to Collateral
Agent all of Assignor's right, title and interest, whether now owned or
hereafter acquired, in and to each of the Leases. This assignment of the Leases
is made as collateral security for the payment and performance of the
Obligations.
2. NO ASSUMPTION OF OBLIGATIONS OR DUTIES OF ASSIGNOR. This Assignment
is an assignment only of all right, title and interest of the Assignor in the
Leases, and Assignor covenants and agrees to perform and observe all of all
material obligations imposed upon Assignor under the Leases as if this
Assignment had not been made. Assignor agrees that the Secured Creditors have
not assumed and will not be deemed to have assumed any of the obligations or
duties of Assignor under or with respect to the Leases unless and until the
Secured Creditors shall have given the parties to the Leases written notice that
the Secured Creditors have affirmatively assumed such obligations and duties as
the result of an Event of Default under the Credit Agreement or the Leases.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF ASSIGNOR. Assignor
represents, warrants and covenants to Collateral Agent:
a. (i) That Exhibit A attached hereto contains a complete list as of
the date hereof of the Leases, (ii) that Assignor is the sole owner of the
entire leasehold interest in each Lease, free and clear and of all Liens, except
for the Liens created in favor of the Collateral Agent pursuant to, or in
connection with, the Credit Agreement, (iii) except as could not reasonably be
expected to, individually or in the aggregate, have a Material Adverse Effect
each Lease is valid and enforceable, subject to the effect of this Assignment
and bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
and similar laws, and has not been altered, modified or amended in any manner,
except as shown on Exhibit A, (iv) to Assignor's knowledge, neither Assignor nor
the Lessor under any Lease is in default under such Lease nor, to the knowledge
of Assignor, has any event occurred (other than pursuant to this Assignment)
which with the passage of time or the giving of notice would constitute a
default under such Lease other than such defaults which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect
and (v) no rent reserved in any Lease has been assigned or prepaid except for
prepaid rent for the current month and applicable security deposits.
-2-
b. Assignor agrees (i) to observe and perform all material obligations
imposed upon Assignor as the lessee under each Lease and not to do, or permit to
be done, anything to materially impair Assignor's rights thereunder, (ii) except
in accordance with the provisions of the Credit Agreement, not to assign
Assignor's interest under any Lease or sublet all or any part of the Premises,
(iii) not alter, modify or change the terms of any Lease in any way adverse in
any material respect, or cancel or terminate any Lease unless it would be
commercially reasonable in light of the Business to terminate such Lease, or
surrender possession of the Premises, or any part thereof other than upon the
expiration of the terms of the respective Leases, cancellation or termination in
accordance with their terms or otherwise in accordance with this clause (iii),
without the prior written consent of Collateral Agent, which consent shall not
be unreasonably withheld and (iv) to use reasonable efforts to enforce the
performance by the Lessor under each Lease of all of such Lessor's obligations
under such Lease, in each case except for such obligations the non-performance
of which could not individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
c. Assignor has full power and authority to execute, deliver and
perform its obligations under this Assignment.
d. In the event that Assignor receives a written landlord consent from
the Lessors under the Leases, this Assignment shall be a legal, valid and
binding obligation of Assignor, enforceable in accordance with its terms with
respect to those Leases.
e. Assignor agrees that Collateral Agent shall have the right,
exercisable at any time that the Collateral Agent believes in its commercially
reasonable business judgment, that there is a substantial risk that the Assignor
will not be able to perform its obligations under the Credit Agreement and the
other Credit Documents, to notify the Lessor under any or all of the Leases that
the Assignor has executed and delivered this Assignment to the Collateral Agent.
4. APPOINTMENT OF COLLATERAL AGENT AS ATTORNEY-IN-FACT. Assignor hereby
irrevocably constitutes and appoints Collateral Agent as its attorney-in-fact to
demand, receive and enforce the respective rights and interests of Assignor with
respect to the Leases at any time after the occurrence and during the
continuance of an Event of Default under the Credit Agreement and the delivery
to Assignor of notice in accordance with Section 10 of the Credit Agreement to
the extent such notice is required pursuant to Section 10 of the Credit
Agreement, and to give appropriate notices for and on behalf of and in the name
of Assignor or either of them or, at the option of Collateral Agent in the name
of Collateral Agent, with the same force and effect as Assignor could do if this
Assignment had not been made.
5. EFFECT OF ASSIGNMENT; REMEDIES FOR DEFAULT. The Assignment shall
constitute an absolute and present assignment provided, however, that Collateral
Agent shall have no right under this Assignment to enforce the provisions of any
Lease unless there shall occur and be continuing an Event of Default under the
Credit Agreement. Upon the occurrence and during the continuance of any such
Event of Default, Collateral Agent may, without affecting any of its or the
Secured Creditors' rights or remedies against Assignor under any other
instrument, document or agreement, exercise its rights under this Assignment as
attorney-in-fact of Assignor in any manner permitted by law, and Collateral
Agent shall have the right to exercise and enforce any or all rights and
remedies available after default to a secured party under the
-3-
applicable Uniform Commercial Code or to an assignee under applicable law. If
notice to Assignor of any intended disposition of collateral or any other
intended action is required by law in a particular instance, such notice shall
be deemed commercially reasonable if given at least ten days prior to the date
of intended disposition. During the continuance of an Event of Default,
Collateral Agent may (i) 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 any or all of the Premises and have, hold, manage, lease and operate the
same, on such terms, and for such period of time, as Collateral Agent may deem
proper (but in no event beyond the stated term of the Lease, including any
options to extend) and (ii) in connection with the exercise of its rights under
clause (i) above, terminate all of Assignor's right to retain, use and enjoy all
rights under any Lease.
6. INDEMNIFICATION. After the occurrence, and during the continuance,
of an Event of Default, Collateral Agent may, but shall not be obligated to,
perform or discharge any obligation, duty or liability under any Lease or under
or by reason of this Assignment. Furthermore, Assignor shall, and hereby agrees
to, indemnify, defend and hold Collateral Agent harmless from, and against, any
and all liability, loss, cost, damage or expense which may, or might be,
incurred by Collateral Agent, directly, or indirectly, under any Lease or under
or by reason of this Assignment and from any and all claims and demands
whatsoever which may be asserted against Collateral Agent by reason of any
alleged obligations or undertakings on its part to perform or discharge any of
the covenants or agreements contained in any Lease other than any such
liability, loss, cost or expense incurred as a result of the gross negligence or
willful misconduct of Collateral Agent. If Collateral Agent incurs 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 all costs, expenses
and reasonable attorneys' fees, shall be added to the Obligations and Assignor
shall reimburse Collateral Agent therefor immediately upon demand. The parties
hereto understand further that this Assignment shall not operate to place
responsibility for the control, care, management or repair of any of the
Premises upon Collateral Agent (except as provided in the Lease for matters
first arising after Collateral Agent has taken physical possession of the
Premises, except for possession solely for the purpose of disposing of the
assets of Assignor), or for the carrying out of any of the terms or conditions
of any Lease (except for matters first arising after Collateral Agent has taken
physical possession of the Premises, except for possession solely for the
purpose of disposing of the assets of Assignor), and it shall not operate to
make Collateral Agent responsible or liable for any waste committed on any of
the Premises by Assignor or any of the Premises or for any negligence in the
management, upkeep, repair or control of any of the Premises, resulting in loss,
injury or death to any lessee, sublessee, invitee, licensee, employee, stranger
or any other Person.
7. REMEDIES CUMULATIVE. No right or remedy of Collateral Agent
hereunder is exclusive of any other right or remedy hereunder or now or
hereafter existing at law or in equity or under the Credit Agreement, the Notes
or the other Credit Documents, but is cumulative and in addition thereto and
Collateral Agent may recover judgment thereon, issue execution therefor, and
resort to every other right or remedy available at law or in equity or under the
Credit Agreement, the Notes or the other Credit Documents, without first
exhausting or affecting or impairing the security or any right or remedy
afforded under this Assignment. No delay in exercising, or omission to exercise,
any such right or remedy will impair any such right or remedy or will be
construed to be a waiver of any default by Assignor hereunder, or acquiescence
therein nor will it affect any subsequent default hereunder by Assignor of the
same
-4-
or different nature. Every such right or remedy may be exercised independently
or concurrently, and when and so often as may be deemed expedient by Collateral
Agent. No term or condition contained in this Assignment may be waived, altered
or changed except as evidenced in writing signed by Assignor and Collateral
Agent. In case Collateral Agent shall have proceeded to enforce any right under
this Assignment and such proceedings shall have been discontinued or abandoned
for any reason, or shall have been determined adversely to Collateral Agent
then, and in every such case, Assignor and Collateral Agent shall be restored to
their former positions with respect to the Leases, and all rights, remedies, and
powers of Collateral Agent shall continue as though no such proceedings had been
taken.
8. COSTS AND EXPENSES. Assignor hereby agrees to pay all reasonable
costs and expenses (including, without limitation, reasonable attorney's fees
and expenses) which Collateral Agent and the Secured Creditors may incur in
exercising and enforcing any of their rights and remedies under this Assignment
after the occurrence and during the continuance of an Event of Default.
9. SUCCESSORS AND ASSIGNS. Subject to the limitations on further
assignment of the Leases by Assignor contained herein, this Assignment shall be
binding upon Assignor and its successors and assigns, and shall inure to the
benefit of Collateral Agent and its successors and assigns. Collateral Agent may
assign its right, title and interest in the Leases upon notice to the Assignor,
but without any requirements for the consent of Assignor.
10. AMENDMENT. This Assignment can be waived, modified, amended,
terminated or discharged only explicitly in a writing signed by Collateral
Agent. A waiver signed by Collateral Agent shall be effective only in the
specific instance and for the specific purpose given.
11. TERMINATION. This Assignment shall terminate and be of no further
force and effect as of the date upon which the Commitments of the Banks and all
Interest Rate Protection and other Hedging Agreements have been terminated, no
Note under the Credit Agreement is outstanding (and all Loans have been repaid
in full), all Letters of Credit have been terminated and all Obligations then
owing have been paid in full. Upon such termination, at the request of Assignor,
Collateral Agent shall provide written confirmation of such termination to
Assignor in form reasonably requested by Assignor, at Assignor's cost and
expense.
12. GOVERNING LAW. This Assignment shall be governed by, and shall be
construed and enforced in accordance with the laws of the State of New York,
without regard to principles of conflicts of law.
-5-
13. Notices. Any notice delivered by Assignor or Collateral Agent
hereunder shall be delivered in the manner provided in the Credit Agreement.
IN WITNESS WHEREOF, Assignor and Collateral Agent have executed this
Assignment as of the date first set forth above.
COINMACH CORPORATION,
as Assignor
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: CFO
BANKERS TRUST COMPANY,
as Collateral Agent
By: /s/ Xxxx Xxx Xxxx
--------------------------------------
Name: Xxxx Xxx Xxxx
Title: Managing Director
Exhibit A
LEASES
-7-
Exhibit B
PREMISES
-8-
