EXHIBIT 10.28
COLLATERAL ASSIGNMENT OF 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 :
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A. Assignor, 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 together with any
successor in such capacity, the "Administrative Agent"), Deutsche Banc Xxxx.
Xxxxx Inc., as Lead Arranger and Book Manager (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 successors in such
capacities, 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"),
copies of which are 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, the 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, any such Bank or Banks or any Affiliate or Affiliates of such Bank or
Banks (even if the
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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 Agreements 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
the same may be amended, modified or supplemented from time to time, 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 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 the copy of the Leases attached hereto as Exhibit A 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)
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.
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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 to 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 term, cancellation or termination of the respective Leases 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. Upon receipt of a written landlord's 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.
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
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and enforce any or all rights and remedies available after default to a secured
party under the 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
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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 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 or 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.
13. NOTICES. Any notice delivered by Assignor or Collateral Agent
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: CFO
BANKERS TRUST COMPANY,
as Collateral Agent
By: /s/ Xxxx Xxx Xxxx
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Name: Xxxx Xxx Xxxx
Title: Managing Director
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EXHIBIT A
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COPIES OF LEASES
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EXHIBIT B
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PREMISES
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