EXHIBIT 10.49
COLLATERAL ASSIGNMENT OF LEASES
COLLATERAL ASSIGNMENT OF LEASES ("Assignment") dated as of January
8, 1997 by COINMACH CORPORATION, a Delaware corporation ("Assignor") in favor
of BANKERS TRUST COMPANY, a New York banking corporation, having an office at
000 Xxxxxxx 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 :
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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 (together with any successor,
the "Administrative Agent"), First Union Corporation, as Syndication Agent
(together with any successor, the "Syndication Agent") and Xxxxxx Commercial
Paper, Inc., as Documentation Agent (together with any successor, 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, 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"), copies of which are attached as Exhibit A hereto, with the
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respective lessors (individually, a "Lessor"; collectively, the "Lessors")
thereto. The Leases pertain to the properties (the "Premises") which are
described on Exhibit B hereto.
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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 or other Hedging Agreement (each as hereinafter defined) with one
or more Other Creditors (as hereinafter defined).
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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, the Documentation Agent, the Collateral 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 (i) interest rate protection agreements (including,
without limitation, interest rate swaps, caps, floors, collars and similar
agreements), (ii) foreign exchange contracts, currency swap agreements or
other similar agreements or arrangements designed to protect against the
fluctuations in currency values and/or (iii) other types of hedging
agreements from time to time (collectively, the "Interest Rate Protection or
Other Hedging Agreements"), with, or guaranteed by Assignor, any such Bank or
Banks or Affiliate or Affiliates (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 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 the Security Agreement).
A G R E E M E N T :
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Assignor and Collateral Agent hereby agree as follows:
1. Assignment. Assignor hereby transfers and assigns to
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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 Secured Obligations.
2. No Assumption of Obligations or Duties of the Assignor. This
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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
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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.
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Assignor represents, warrants and covenants to Collateral Agent:
a. (i) That the copy of the Leases attached hereto as Exhibit A
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is a true and correct copy thereof as in effect on the date hereof, (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) 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,
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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 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.
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) not to assign Assignor's interest under any Lease or sublet
all or any part of the Premises, (iii) other than upon the expiration of the
term of the respective Leases in accordance with their terms, not alter,
modify or change the terms of any Lease in any material respect, or cancel or
terminate any Lease, or surrender possession of the Premises, or any part
thereof, 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.
c. Assignor has full power and authority to execute, deliver and
perform its obligations under this Assignment.
d. Upon receipt of a written landlord's consent from
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the Lessors under the Leases, this Assignment shall be a legal, valid and
binding obligation of Assignor, enforceable in accordance with its terms.
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 the Collateral Agent as Attorney-in-Fact.
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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 Article X
of the Credit Agreement, and 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
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shall constitute an absolute and present assignment; provided, however, that
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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 applicable Uniform Commercial Code. 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 day's 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
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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
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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 Secured Obligations and Assignor shall reimburse
Collateral Agent therefor immediately upon demand, and, upon the failure of
Assignor to reimburse Collateral Agent within 10 days of demand, Collateral
Agent, at its option, may declare all of the Secured Obligations immediately
due and payable. 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,
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licensee, employee, stranger or any other Person.
7. Remedies Cumulative. No right or remedy of Collateral Agent
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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 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
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reasonable costs and expenses (including, without limitation, reasonable
attorney's fees and expenses) which Collateral Agent or 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
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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,
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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
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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
Secured 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
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shall be construed and enforced in accordance with the laws of the State of
New York, without regard to principles of conflicts of law.
13. Notices. Any notice delivered by Assignor or Collateral Agent
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hereunder shall be delivered in the manner provided in the Credit Agreement.
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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
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Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
BANKERS TRUST COMPANY,
as Collateral Agent,
By: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxx
Title: Vice President
