EXHIBIT 10.12
COLLATERAL ASSIGNMENT OF
CONTRACTS, LEASES, LICENSES AND PERMITS
THIS COLLATERAL ASSIGNMENT OF CONTRACTS, LEASES, LICENSES AND
PERMITS made as of December 26, 1997, by and between PCD INC., a
Massachusetts corporation, with a principal place of business at 0
Xxxxxxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 01960-
7977 ("Assignor") and FLEET NATIONAL BANK, a national banking
association organized under the laws of the United States having
an office at Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
("Assignee"), as Agent for itself and each of the other Lenders
who are now or hereafter become parties to the hereinafter defined
Loan Agreement.
WITNESSETH:
1. DEFINITIONS. Each reference in this Assignment to the
following capitalized terms shall be deemed to have the following
meanings and all other references to a capitalized term shall have
the meaning assigned thereto in the Loan Agreement.
(a) CONTRACTS, LEASES, LICENSES AND PERMITS: All
contracts, leases, licenses and permits of Assignor together with
all extensions, renewals, replacements and substitutions therefor.
(b) LOAN AGREEMENT: That certain Loan Agreement of
even date herewith, by and among Assignor, Assignee and each of
the other Lenders who are now or hereafter become parties to the
Loan Agreement (as the same may be amended from time to time, the
"Loan Agreement") pursuant to which the Lenders have agreed,
subject to the terms and conditions thereof, to make loans and
credit facilities available to Assignor as more fully described in
the Loan Agreement and Assignor has agreed, INTER ALIA, to execute
and deliver this Assignment as partial security for such loans.
(c) OBLIGATIONS: Payment and performance of all of the
Obligations of Assignor under the Loan Agreement and under the
Notes, (ii) the performance of all of the obligations of Assignor
to Assignee contained herein, and (iii) the payment of all other
future advances and other obligations of Assignor to Assignee
and/or the other Lenders, including, without limitation, any
future loans and advances made to Assignor by Assignee and/or the
other Lenders prior to, during or following any bankruptcy,
reorganization or insolvency of Assignor (a "Reorganization"), any
interest accruing under the Notes and/or the Loan Agreement after
the commencement of a Reorganization, and any and all other
indebtedness, liabilities and obligations of Assignor to Assignee
and/or the other Lenders of every kind and description, direct,
indirect or contingent, now or hereafter existing, due or to
become due.
NOW, THEREFORE, in consideration of the Loan Agreement, the
Loans pursuant thereto and other valuable consideration, the
receipt of which is hereby acknowledged and as further security
for payment and performance of the Obligations, Assignor hereby
grants, conveys, transfers, assigns and sets over to Assignee for
the benefit of Assignee all of Assignor's rights, title and
benefits (but none of its obligations or liabilities) under, in
and to each Contract, Lease, License and Permit which may be so
granted, conveyed, transferred, assigned or set over without a
violation of the terms thereof.
TO HAVE AND TO HOLD the same with all of the rights,
privileges and appurtenances thereunto belonging unto Assignee
(but none of its obligations or liabilities), its successors and
assigns until such time as the Obligations have been paid and
satisfied in full for the purpose of further and collaterally
securing same.
Assignor and Assignee agree that the following terms and
conditions shall govern this Assignment:
2. ASSIGNOR'S REPRESENTATIONS AND COVENANTS. Assignor, for
itself and for its successors and assigns, covenants and warrants
as follows:
(a) that each existing Contract, Lease, License and
Permit is in full force and effect and that there is, to the
knowledge of Assignor, no default on the part of any party thereto
or grantor thereof;
(b) that Assignor is the sole owner of the Contracts,
Leases, Licenses and Permits; that each Contract, Lease, License
and Permit is free from all Liens other than those created under
the Security Documents and those permitted under the Loan
Agreement; that Assignor has full power and authority to assign
each such Contract, Lease, License Permit in accordance herewith;
that Assignor will warrant and defend each such Contract, Lease,
License and Permit to Assignee against the lawful claims and
demands of all persons, and that Assignor has not sold, assigned,
transferred, mortgaged or pledged any such Contract, Lease,
License or Permit or any interest therein, to any person, firm or
corporation other than Assignee;
(c) that Assignor will not assign, pledge or otherwise
encumber any such Contract, Lease, License or Permit without the
prior written consent of Assignee in each instance and then only
subject to and in accordance with any conditions set forth in such
written consent;
(d) that Assignor will not, without the prior written
consent of Assignee in each instance, directly or indirectly
amend, modify, cancel, terminate or permit any surrender of any
Contract, Lease, License or Permit;
(e) that Assignor will not in any way knowingly violate
or permit a violation of Assignor's license granted in SECTION 3
hereof;
(f) that Assignor will fulfill or cause to be fulfilled
in all material respects all of the material terms, covenants and
conditions on Assignor's part to be fulfilled under each Contract,
Lease, License or Permit;
(g) that Assignor will, upon written request by
Assignee, while this Assignment remains in force and effect,
execute and deliver all such powers of attorney, instruments of
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pledge or assignment, and such other instruments or documents as
Assignee may reasonably request at any time for the purpose of
further securing Assignee's rights hereunder;
(h) that Assignor will use its best efforts to provide
Assignee with written notice of any extension, renewal, amendment
or modification of any Contract, Lease, License or Permit within
thirty (30) days thereof, and that Assignor will similarly furnish
to Assignee, on demand, true copies of all agreements or letters
effecting same.
3. LICENSE UNTIL DEFAULT. So long as no Event of Default is
continuing, Assignor shall have a license to enjoy each Contract,
Lease, License and Permit pursuant to the terms thereof and, to
exercise Assignor's rights thereunder.
4. ASSIGNEE'S RIGHTS IN EVENT OF DEFAULT.
4.1 Immediately upon the occurrence of an Event of
Default, the license to Assignor under SECTION 3 hereof shall, at
the option of Assignee, terminate and in such event Assignee is
hereby expressly and irrevocably authorized to assume any or all
of Assignor's rights (but none of its obligations or liabilities)
with respect to each Contract, Lease, License and Permit by notice
in accordance with SECTION 10 hereof to Assignor without further
authorization, notice or demand and without the commencement of
any action to foreclose any of the Security Documents or to
exercise its power of sale and other remedies thereunder.
4.2 Assignor hereby constitutes and appoints Assignee
irrevocably, and with full power of substitution and revocation,
the true and lawful attorney, for and in the name, place and stead
of Assignor, to exercise any and all rights and remedies of
Assignor under each Contract, Lease, License and Permit and to
perform any of the actions and rights provided by any of the
Security Documents upon the occurrence of an Event of Default.
Assignor hereby grants unto said attorney full power and authority
following the occurrence of an Event of Default to do and perform
each and every act whatsoever requisite to be done with respect to
any Contract, Lease, License or Permit, as fully to all intents
and purposes as Assignor could do if personally present, hereby
ratifying and confirming all that said attorney shall lawfully and
reasonably do or cause to be done by virtue hereof; PROVIDED,
HOWEVER, that any acts or omissions by Assignee after an Event of
Default shall be at Assignee's discretion and shall not be or
become the basis for any liability of Assignee to any Person.
4.3 Acceptance of this Assignment shall not constitute
a satisfaction of all or any part of the Obligations except to the
extent of funds actually received and applied by Assignee on
account of the same.
4.4 The rights and powers of Assignee hereunder shall
continue and remain in full force and effect until all
Obligations, including any deficiency resulting from exercise of
Assignee's remedies under any of the Security Documents, are paid
or satisfied in full. Assignee shall not be liable to Assignor or
anyone claiming under or through Assignor by reason of any act or
omission by Assignee hereunder.
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4.5 An Event of Default shall be cured only when
Assignor shall have paid and satisfied in full all Obligations and
other sums owing and past due and shall have performed all other
terms, covenants and conditions, the failure of performance of
which terminated the license herein above mentioned, or shall have
received a written waiver from Assignee of such Event of Default.
5. INDEMNIFICATION.
5.1 Assignor agrees to indemnify and hold harmless
Assignee from and against any and all liability, loss, damage and
expense, including reasonable attorneys' fees which Assignee may
or shall incur under or in connection with any Contract, Lease,
License or Permit or by reason of any of the Obligations or
actions taken or omitted by Assignee under any of the Obligations,
including, without limitation, any action or omission which
Assignee in its discretion may take to protect its interest in any
Contract, Lease, License or Permit and from and against any and
all claims and demands whatsoever which may be asserted against
Assignor and/or Assignee by reason of any of the terms and
conditions of any Contract, Lease, License or Permit.
5.2 If Assignee incurs any such actual liability, loss,
damage or expense, the amount thereof, plus interest thereon from
and after demand by Assignee for payment thereof by Assignor at
the rate equal to the lower of (a) 2% in excess of Effective
Prime, or (b) the highest rate allowable by law, shall be paid by
Assignor to Assignee within three (3) business days after demand
therefor.
5.3 Nothing contained herein shall operate or be
construed to obligate Assignee to perform any of the terms,
covenants or conditions contained in any Contract, Lease, License
or Permit, or to take any action to collect any payments or to
impose any obligation on Assignee relating to any Contract, Lease,
License or Permit.
6. EXERCISE OF REMEDIES. The rights and remedies of
Assignee under this Assignment are cumulative and in addition to
any other rights and remedies which Assignee shall have under or
as a result of any other of the Obligations and may be exercised
as often as Assignee deems such exercise to be desirable. Failure
of Assignee to avail itself of any of the terms, covenants and
conditions of this Assignment for any period of time, or at any
time or times, shall not constitute a waiver of any of its rights
hereunder.
7. ASSIGNMENT BY ASSIGNEE. Assignee shall have the right to
assign Assignor's rights, title and interest in any Contract,
Lease, License or Permit, subject to any transfer restrictions
contained therein, to any subsequent agent with respect to the
Loan Agreement and the Obligations thereunder.
8. TERMINATION. Upon final payment and satisfaction in full
of the Obligations, as evidenced by recorded satisfactions or
releases of the recorded Security Documents or otherwise as
satisfactory to the Assignee, and of any sums which may be payable
hereunder, or under any present or future agreement between
Assignor Assignee or each of the Lenders, this Assignment shall be
of no further force and effect and, in that event, upon Assignor's
request and expense, Assignee agrees to execute and deliver to
Assignor instruments evidencing the termination of this
Assignment.
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9. APPROVALS. Notwithstanding anything to the contrary
contained herein, Assignee will not take any action pursuant to
this Assignment which would constitute or result in any assignment
of any Contract, Lease, License or Permit if such assignment would
require, pursuant to the terms of such Contract, Lease, License or
Permit the prior approval of the other party to such Contract,
Lease, License or Permit, without first obtaining such approval.
During the continuance of an Event of Default, Assignor agrees to
take any action which Assignee may reasonably request in order to
obtain and enjoy the full rights and benefits granted to Assignee
and the Lenders by this Assignment and each other agreement,
instrument and document delivered to Assignee or any of the
Lenders in connection herewith or in any document evidencing or
securing the Collateral, including specifically, at Assignee's own
cost and expense, the use of its best efforts to assist in
obtaining approval of the other party to such Contract, Lease,
License or Permit for any action or transaction contemplated by
this Assignment which is then required by such Contract, Lease,
License or Permit.
10. NOTICES. All notices, requests, demands and other
communications provided for hereunder shall be in writing and
mailed or telefaxed or delivered to the applicable party in the
manner set forth in SECTION 9.6 of the Loan Agreement.
11. MISCELLANEOUS.
11.1 This Assignment, except as set forth in SECTION
11.2, below, shall be construed and enforced in accordance with
and governed by the laws of The Commonwealth of Massachusetts.
11.2 Notwithstanding the foregoing choice of law
provision, the procedures governing the enforcement by Assignee of
its foreclosure and other remedies against Assignor under any of
the Contracts, Leases, Licenses and Permits may, at Assignee's
election, be governed by the laws of the state in which the
Contracts, Leases, Licenses and Permits in question are located.
11.3 The Assignor irrevocably:
(i) agrees that any suit, action, or other legal
proceeding arising out of this Assignment may be brought in the
courts of record of The Commonwealth of Massachusetts or any other
State(s) in which the Contracts, Leases, Licenses and Permits are
located or the courts of the United States located in The
Commonwealth of Massachusetts or any other State(s) in which any
of the Contracts, Leases, Licenses and Permits are located.
(ii) consents to the jurisdiction of each such court in
any such suit, action or proceeding; and
(iii) waives any objection which it may have to the
laying of venue of such suit, action or proceeding in any of such
courts.
For such time as the Obligations shall be unpaid in
whole or in part, Assignor irrevocably designates the registered
agent or agent for service of process of Assignor as reflected in
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the records of the Secretary of State of The Commonwealth of
Massachusetts as its registered agent, and in the absence thereof,
the Secretary of State of The Commonwealth of Massachusetts, as
its agent to accept and acknowledge on its behalf service of any
and all process in any such suit, action or proceeding brought in
any such court and agrees and consents that any such service of
process upon such agent and written notice of such service to
Assignor by registered or certified mail shall be taken and held
to be valid personal service upon Assignor regardless of where
Assignor shall then be doing business and that any such service of
process shall be of the same force and validity as if service were
made upon it according to the laws governing the validity and
requirements of such service in such state and waives any claim of
lack of personal seizure or other error by reason of any such
service. Any notice, process, pleadings or other papers served
upon the aforesaid designated agent shall, within three (3)
Business Days after such service, be sent by the method provided
for in SECTION 9.6 of the Loan Agreement to Assignor at its
address set forth in the Loan Agreement. EACH OF THE PARTIES
HERETO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF
ANY DISPUTE BETWEEN ASSIGNOR AND ASSIGNEE WITH RESPECT TO THE
FINANCING DOCUMENTS AND/OR ANY OF THE TRANSACTIONS CONTEMPLATED
THEREBY.
11.3 No amendment, cancellation or discharge of this
Assignment shall be valid unless Assignee shall have consented
thereto in writing.
11.4 In case any one or more of the provisions
contained in this document shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not effect any other
provision hereof, and this document shall be construed as if such
invalid, illegal or unenforceable provision had never been
included.
11.5 The terms, covenants, and conditions contained
herein shall inure to the benefit of and shall be binding upon
Assignee and Assignor and their respective successors and assigns.
11.6 The relative rights of Assignee and the Lenders
are set forth in the Loan Agreement.
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IN WITNESS WHEREOF, Assignor and Assignee, jointly and
severally, have caused this Assignment to be duly executed on
their behalf by their respective duly authorized officers on the
date first set forth above.
PCD INC.
By: /S/ Xxxx X. Xxxxxx, Xx.
------------------------
Xxxx X. Xxxxxx, Xx.
Chairman of the Board
FLEET NATIONAL BANK,
as Agent for itself and
the other Lenders
By: /S/ Xxxxxx X. Xxxxxx
------------------------
Xxxxxx X. Xxxxxx
Senior Vice President
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