Exhibit 10.5
ASSIGNMENT AND SECURITY AGREEMENT
THIS ASSIGNMENT AND SECURITY AGREEMENT (this "ASSIGNMENT") is
made as of the ____ day of ________, 1997 by and between
________________________, a ___________________ (the "ASSIGNOR"), and
________________, a ___________________ (the "ASSIGNEE").
W I T N E S S E T H :
WHEREAS, pursuant to a Lease Agreement, dated as of _____ __,
1997 (the "LEASE"), the Assignee has leased to the Assignor and the
Assignor has leased from the Assignee certain premises as more particularly
described in and subject to and upon the terms and conditions set forth in
the Lease; and
WHEREAS, as security for the payment and performance of each and
every obligation and liability of the Assignor to the Assignee under the
Lease (collectively, the "OBLIGATIONS"), including, without limitation, the
payment of the Rent (this and other capitalized terms used and not
otherwise defined herein having the meanings ascribed to such terms in the
Lease), the Assignor has agreed to grant to the Assignee a first and
perfected lien and security interest in the Account (as hereinafter
defined);
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the mutual receipt
and legal sufficiency of which are hereby acknowledged, the Assignor hereby
agrees with the Assignee as follows:
1. Subject to the terms and conditions hereinafter set forth,
the Assignor hereby assigns, transfers, pledges, conveys and grants to the
Assignee, as security for the payment and performance of the Obligations,
all of the right, title and interest of the Assignor in and to [Bank Name],
Account No. __________ (the "ACCOUNT"), all certificates of deposit,
commercial paper, United States Treasury bills, stocks, bonds and other
documents, instruments and assets held in the Account and any and all
substitutions, replacements and renewals thereof and all proceeds of the
foregoing (collectively, the "COLLATERAL").
2. The Assignor agrees promptly to execute and deliver all
documents and instruments deemed necessary by the Assignee to perfect the
Assignee's security interest in the Collateral and, in the event that the
Assignor fails to execute and deliver any such documents and instruments,
the Assignor hereby authorizes the Assignee to execute and deliver the same
in the name of the Assignor pursuant to the power of attorney granted to
the Assignee in Paragraph 6 below.
3. Upon the occurrence and during the continuance of an Event
of Default (as defined in the Lease), the Assignee, without further
authorization, may authorize [Bank Name] (the "INVESTMENT MANAGER") to
distribute the Collateral to the Assignee (properly endorsed or assigned to
the Assignee), sell, assign, negotiate or otherwise dispose of the
Collateral and may apply all principal, interest and other proceeds
received by the Assignee from time to time with respect to the Collateral
in reduction of the Obligations. Any balance of the Collateral remaining
after such application until payment in full of the Obligations, shall be
and remain the Collateral hereunder.
4. To the extent permitted by law, the Assignor hereby waives
any notice of sale or other disposition of all or any part of the
Collateral and the exercise of any other right or remedy of the Assignee
existing after the occurrence and during the continuance of any Event of
Default, and, to the extent any such notice is required and cannot be
waived, the Assignor agrees that if such notice is given in the manner and
to the address or addresses then required pursuant to this Assignment at
least five (5) Business Days (as defined in the Lease) before the time of
the sale or other disposition, such notice shall be deemed reasonable and
shall fully satisfy any legal requirements for the giving of said notice.
5. The Assignor represents that the Account is the only account
in which deposits of the FF&E Reserve will be made and that, as of the date
hereof, the balance in the Account is
________________________________________ Dollars ($__________).
6. Upon the occurrence and during the continuance of an Event
of Default, the Assignor hereby appoints the Assignee as the Assignor's
true and lawful attorney-in-fact to execute all documents and instruments
and take all actions, in the Assignor's name or otherwise, as the Assignee
shall deem necessary or expedient, to cause the Collateral and the proceeds
thereof to be received by the Assignee and to be made available to the
Assignee for the purposes herein specified. The power of attorney hereby
granted includes, without limitation, the right to endorse, in the
Assignor's name, to the order of the Assignee, all checks received by the
Assignee as proceeds of the Collateral, to execute, in the Assignor's name,
and to deliver to the Assignee, all documents and instruments necessary to
transfer the Collateral to the Assignee and to apply the funds received
upon the negotiation of such checks or the sale of any of the Collateral as
set forth herein. The power of attorney contained herein is irrevocable
and is coupled with an interest and it shall terminate upon the payment in
full of the Obligations.
7. To the extent permitted by law, the Assignor hereby
indemnifies the Assignee and holds the Assignee harmless from and against
all losses, costs, damages, fees and expenses whatsoever with respect to
the exercise of the foregoing power of attorney and the exercise of the
other rights and privileges granted to the Assignee hereunder, including,
without limitation, the right to use, possess or dispose of the Collateral
by the Assignee in accordance with the terms of this Assignment,
responsible only for the application of such cash or property as the
Assignee shall actually receive pursuant to the terms hereof. The failure
or omission of the Assignee's to do any of the things or exercise any of
the rights, interests, powers and authorities herein shall not be construed
to be a waiver of any of such rights, interests, powers and authorities.
8.The Assignee shall not be obligated to exercise any power or
privilege herein granted and shall not be responsible for failure to do any
or all of the things for which rights, interests, power and authority are
hereby conveyed. The Assignee shall be responsible only for the
application of such cash or other property as the Assignee shall actually
receive pursuant to the terms hereof. The failure or omission of the
Assignee to do any of the things or exercise any of the rights, interests,
powers and authorities herein shall not be construed to be a waiver of any
of such rights, interests, powers and authorities.
9. The Assignor agrees to execute, upon the Assignee's request,
any and all other and further instruments deemed necessary or desirable by
the Assignee to carry these presents into effect, including, without
limitation, a notice in the form attached hereto as EXHIBIT A.
10. The Assignor covenants and agrees that, except as otherwise
permitted by the Lease, it will not, at any time during the term of this
Assignment, further convey or encumber the Collateral in any manner
whatsoever; and the Assignor agrees it will do all things necessary to
maintain the enforceability and priority of the Assignee's security
interest in the Collateral.
11. This instrument is a security agreement under the Uniform
Commercial Code and vests in the Assignee, in addition to the other rights
and privileges herein contained, all of the rights, powers and privileges
of a secured party under the Uniform Commercial Code.
12. Whenever any notice, demand or request may, properly be
given hereunder, the same shall always be sufficient if given in the manner
and to the address or addresses then required pursuant to Section 22.10 of
the Lease.
13.This Agreement shall inure to the benefit of the Assignee,
its successors and assigns, and shall be binding upon the Assignor, and its
successors and assigns.
14. This Agreement shall be interpreted, construed, applied and
enforced in accordance with the laws of The Commonwealth of Massachusetts
applicable to contracts between residents of Massachusetts which are to be
performed entirely within Massachusetts, regardless of (i) where this
Agreement is executed or delivered; or (ii) where any payment or other
performance required by this Agreement is made or required to be made; or
(iii) where any breach of any provision of this Agreement occurs, or any
cause of action otherwise accrues; or (iv) where any action or other
proceeding is instituted or pending; or (v) the nationality, citizenship,
domicile, principal place of business, or jurisdiction otherwise would
apply the laws of a jurisdiction of organization or domestication of any
party; or (vi) whether the laws of the forum jurisdiction otherwise would
apply the laws of a jurisdiction other than Massachusetts; or (vii) any
combination of the foregoing. Notwithstanding the foregoing, the laws of
the State shall apply to the perfection and priority of liens upon and the
disposition of any Collateral.
To the maximum extent permitted by applicable law, any action to
enforce, arising out of, or relating in any way to, any of the provisions
of this Agreement may be brought and prosecuted in such court or courts
located in The Commonwealth of Massachusetts as is provided by law; and the
parties consent to the jurisdiction of said court or courts located in
Massachusetts and to service of process by registered mail, return receipt
requested, or by any other manner provided by law.
15. THE DECLARATION OF TRUST ESTABLISHING ASSIGNEE, A COPY OF
WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE "DECLARATION"), IS DULY
FILED WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF
MARYLAND, PROVIDES THAT THE NAME "_______________________" REFERS TO THE
TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT
INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF ASSIGNEE SHALL BE HELD TO ANY PERSONAL LIABILITY,
JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF OR CLAIM AGAINST, ASSIGNEE.
ALL PERSONS DEALING WITH ASSIGNEE, IN ANY WAY, SHALL LOOK ONLY TO THE
ASSETS OF ASSIGNEE FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY
OBLIGATION.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
this Assignment to be executed under seal as of the day and year first
above written.
ASSIGNOR:
By:
Its (Vice) President
ASSIGNEE:
By:
Its (Vice) President
EXHIBIT A
ACCOUNT NOTICE
[See attached copy.]
