EXHIBIT 10.26
After recording return to:
Xxxxxxxxx Xxxxxx, Esq.
Katten, Muchin & Zavis
000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
ASSIGNMENT OF LEASES
This ASSIGNMENT OF LEASES (this "Assignment") is made as of
December 21, 1995, by GENERAL MANUFACTURED HOUSING, INC., a
Georgia corporation ("Assignor"), to FIRST SOURCE FINANCIAL LLP,
an Illinois registered limited liability partnership
("Assignee").
RECITALS:
A. Assignor and Assignee have entered into, among other
things, a Secured Credit Agreement of even date herewith (as the
same may be amended or modified from time to time, the "Secured
Credit Agreement"), pursuant to which Assignee has agreed to make
certain loans, advances or other financial accommodations to
Assignor, subject to the terms and conditions set forth in such
Secured Credit Agreement.
B. Assignor is, or is the successor in interest to, each
lessee under those certain leases (individually, each "Lease,"
together, the "Leases"), described on Exhibit A, with the lessors
(the "Lessors") listed on Exhibit B.
C. One of the conditions precedent to Assignee's making of
the loans, advances and other financial accommodations is
Assignor's execution and delivery of this Assignment.
NOW, THEREFORE, in consideration of the foregoing premises
and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, Assignor hereby agrees as
follows:
1. Definitions. Capitalized terms used but not elsewhere
defined herein shall have the respective meanings ascribed to
such terms in the Secured Credit Agreement.
2. Assignment. To secure the payment, performance and
observance of the Liabilities, Assignor grants to Assignee a
security interest in and collaterally assigns to Assignee all of
Assignor's right, title and interest in and to the Leases.
3. Representations and Warranties. Assignor represents
and warrants to Assignee that: (a) Assignor is the sole owner of
the entire leasehold interest in each Lease, free and clear of
all Liens, except for Liens created pursuant to, or in connection
with, the Secured Credit Agreement and except for Permitted
Liens, (b) to Assignor's knowledge each Lease is valid and
enforceable and has not been altered, modified or amended in any
manner, except as otherwise disclosed in writing by Assignor to
Assignee; (c) neither Assignor, nor, to Assignor's knowledge, any
Lessor under the Leases is in default under the applicable Lease,
nor has any event occurred which with the passage of time, giving
of notice or both would constitute a default under such Lease;
(d) no rent reserved under each Lease has been assigned or
prepaid, except for prepaid rent for the current month; and (e)
the current monthly rent, security deposit and the commencement
and expiration date of each Lease is reflected accurately in the
applicable portions of the Leases.
4. Covenants. Assignor covenants to and with Assignee:
(a) 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 impair materially Assignor's rights
thereunder; (b) not to assign Assignor's interest under any Lease
or sublet all or any part of the Premises; (c) not to, except in
the ordinary course of Assignor's business, as such business is
currently conducted, alter, modify or change the terms of any
Lease, or cancel or terminate the same, or surrender possession
of the Premises, or any part thereof, without the prior written
consent of Assignee which consent shall not be unreasonably
withheld; (d) not to exercise any option nor elect not to
exercise any option without the prior written consent of Assignee
which consent shall not be unreasonably withheld; and (e) to
enforce the performance by each Lessor under the Leases of all of
such Lessor's material obligations under the applicable Lease.
5. Security. This Assignment is a present and absolute
assignment. So long as no Event of Default has occurred and is
continuing, Assignor shall have the right to retain, use and
enjoy all rights under each Lease.
6. Remedies or Default. Upon the occurrence and during
the continuance of any Event of Default, Assignee, at its option,
without in any way waiving such default and without notice, and
without regard to the adequacy of the security for Assignor's
Liabilities: (a) either in person or by agent, with or without
bringing any action or proceeding, or by a receiver appointed by
a court, may take possession of any or all of the Premises and
may have, hold, manage, lease and operate the same in accordance
with the terms of the applicable Lease or as otherwise agreed by
Assignee and the appropriate Lessor; and (b) in connection with
the exercise of its rights under clause (a) above, may terminate
all of Assignor's right to retain, use and enjoy all rights under
the Leases.
7. Indemnification. Assignee may, but shall not be
obligated to, perform or discharge any obligation, duty or
liability of Assignor under each Lease or under or by reason of
this Assignment, and Assignor shall, and hereby agrees to,
indemnify, defend and hold Assignee harmless from, and against,
any and all liability, loss, cost, damage or expense which may,
or might be, incurred by Assignee, 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 Assignee 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 except that
Assignor shall not be liable for any gross negligence or willful
misconduct of Assignee or any acts or omissions of Assignee after
Assignee obtains physical possession of the Premises. If
Assignee 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
attorneys' fees, shall be added to Assignor's Liabilities and
Assignor shall reimburse Assignee 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
Assignee, or for the carrying out of any of the terms or
conditions of each Lease, and it shall not operate to make
Assignee responsible or liable for any waste committed on the
Premises by Assignor or for any dangerous or defective condition
of the Premises or for any negligence in the management, upkeep,
repair or control of the Premises by Assignor, resulting in loss,
injury or death to any lessee, sublessee, invitee, licensee,
employee, stranger or any other Person.
8. Release of Assignment. Upon payment, performance and
observance in full of Assignor's Liabilities, this Assignment
shall be void and of no further force or effect and Assignee,
upon the written request of Assignor, shall execute such
documents, as may be reasonably requested by Assignor, to confirm
the same; provided, however, that the certificate of any officer
or agent of Assignee certifying that any of Assignor's
Liabilities remain unsatisfied shall constitute conclusive
evidence of the validity, effectiveness and continuing force of
this Assignment and any Person may, and hereby is authorized to,
rely thereon.
9. Remedies Cumulative. No right or remedy of Assignee
hereunder is exclusive of any other right or remedy hereunder or
now or hereafter existing at law or in equity or under the
Secured Credit Agreement or the other Related Documents, but is
cumulative and in addition thereto and Assignee may recover
judgment thereon, issue execution therefor, and resort to every
other right or remedy available at law or in equity or under the
Secured Credit Agreement or the other Related 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 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 Assignee. No term or
condition contained in this Assignment, may be waived, altered or
changed except as evidenced in writing signed by Assignor and
Assignee.
In case Assignee 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 Assignee, then, and in every such case,
Assignor and Assignee shall be restored to their former positions
and rights hereunder in respect to each Lease, and all rights,
remedies, and powers of Assignee shall continue as though no such
proceedings had been taken.
10. Miscellaneous
A. Notices. All notices required or permitted to be
given hereunder shall be given as set forth in the Secured Credit
Agreement.
B. Headings. Section and subsection headings in this
Assignment are included herein for convenience of reference only
and shall not constitute a part of this Assignment for any other
purpose or be given any substantive effect.
C. Successors and Assigns; Subsequent Holders Of
Notes. This
Assignment shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns,
except that Assignor may not assign its rights or obligations
hereunder without the written consent of Assignee as provided in
the Secured Credit Agreement.
D. Severability. The invalidity, illegality or
unenforceability in any jurisdiction of any provision in or
obligation under this Assignment, the Secured Credit Agreement or
the other Related Documents shall not affect or impair the
validity, legality or enforceability of the remaining provisions
or obligations under this Assignment, the Secured Credit
Agreement or the other Related Documents or of such provision or
obligation in any other jurisdiction.
E. Amendment. This Assignment may not be amended,
supplemented, terminated or otherwise modified except by written
instrument executed by Assignor and Assignee.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, this Assignment has been made by
Assignor as of the day and year first written above.
ASSIGNOR:
GENERAL MANUFACTURED HOUSING, INC.,
a Georgia corporation
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: President
Signed, sealed and delivered
in the presence of:
/s/ illegible
Unofficial Witness
/s/ Xxxxx X. Xxxxxxxx
Notary Public
Commission Expiration
Date: stamped
Exact Date of Execution by
Notary Public 12/21/95
[AFFIX NOTARIAL SEAL]
EXHIBIT A
LEASES
Plants 2 and 3
Contract of Lease and Rent, (with option to purchase),
dated December 30, 1993 by and between Xxxx County
Development Authority, as Lessor, and General
Manufactured Housing, Inc., as Lessee.
Plant 4
A. Contract of Lease and Rent, (with option to purchase),
dated August 1, 1987 by and between Waycross and Xxxx
County Development Authority, as Lessor, and Xxx-Bar
Corporation, as Lessee.
B. Lease Agreement, (with option to purchase), dated
May 26, 1995 by and between Xxx-Bar Corporation, as
Lessor, and Hi-Tech Properties, Inc., as Lessee.
C. Sublease Agreement dated July 1, 1995, as amended, by
and between Hi-Tech Properties, Inc., as Lessor, and
General Manufactured Housing, Inc., as Lessee.
Vacant Land Adjacent to Plant 4
Lease Agreement dated October 10, 1995 by and between
Waycross and Xxxx County Development Authority, as
Lessor, and Hi-Tech Properties, Inc., as Lessee.
Sublease Agreement dated October 10, 1995 by and
between Hi-Tech Properties, as Lessor and General
Manufacturer Housing, Inc., as Lessee.
EXHIBIT B
LESSORS
X. Xxxx County Development Authority. (Plants 2, 3 and 4).
B. Xxx-Bar Corporation. (Plant 4).
C. Hi-Tech Properties, Inc. (Sublessor, Plant 4; Lessor,
vacant land adjacent to Plant 4)
