EXHIBIT 10.6
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ASSIGNMENT OF LEASES
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THIS ASSIGNMENT OF LEASES (hereinafter the "Assignment") is made as of
October 30, 2000, by and between PRESSTEK, INC., a Delaware corporation having
its principal office at 0 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxxxxx 00000 (the
"Borrower") in favor of CITIZENS BANK NEW HAMPSHIRE, a guaranty savings bank
chartered under the laws of the State of New Hampshire, with an office at 000
Xxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxxxxx 00000 (the "Bank").
W I T N E S S E T H
WHEREAS, Bank has extended to Borrower a mortgage term loan in the
principal amount of up to Four Million Dollars ($4,000,000.00) (the "Loan") as
evidenced by Borrower's promissory note of even date in said principal amount
(including any extensions, modifications, renewals and replacements, the
"Note"), pursuant to the Loan Agreement dated December 18, 1996, as amended by
Amendment to Loan Agreement and Related Loan Documents of even date (including
any further amendments or restatements, the "Loan Agreement") between the
Borrower and the Bank;
WHEREAS, the Loan is secured inter alia by a certain mortgage and
security agreement (the "Mortgage") of even date herewith, executed by Borrower
in favor of Bank encumbering Borrower's interest in that certain parcel or tract
of land and the buildings and all of the other improvements thereon, located at
00 Xxxxxxxxx Xxxxx, Xxxxxx, Xxxxxx of Hillsborough, State of New Hampshire, and
more particularly described in Schedule A attached hereto (the "Real Property"),
(collectively, the Note, the Mortgage, the Loan Agreement and any other
documents evidencing or securing payment of the Loan are referred to herein as
the "Instruments"); and,
WHEREAS, Bank has required an assignment of all leases of the Real
Property as security for payment of the principal amount of the Loan, accrued
and unpaid interest thereon, and any applicable prepayment fees, late charges,
and attorneys fees respecting the Loan (collectively, the "Liabilities").
NOW THEREFORE, Bank and Borrower, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, hereby agree as
follows:
1. Assignment.
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1.1 Assignment of Leases. Borrower hereby, in order to
partially secure the payment and performance of the Liabilities, presently and
irrevocably assigns and transfers to Bank and grants a security interest in all
of Borrower's right, title and interest, as landlord, in and to all leases of
space, license agreements, concession agreements and other occupancy agreements
of any nature, now or hereafter encumbering or affecting all or any part of the
Real Property (hereafter the "Lease" or collectively, the "Leases"), together
with all extensions, renewals, modifications and replacements thereof, and
together with any and all guaranties of the obligations of the lessees,
licensees, concessionaires and occupants thereunder (collectively, the
"Lessees").
1.2 Assignment Absolute. This Assignment shall be a present,
absolute and unconditional assignment, and shall, immediately upon execution,
give Bank the right to collect all rents, royalties, issues, profits, license
fees, concession fees, deposits and other income of every kind and nature due by
virtue of the Leases (collectively, the "Rent").
1.3 Assignment of Security Deposits. If any of the Leases
provide for a security deposit paid by any Lessee to Borrower, Borrower hereby
grants a security interest in and assigns its right, title and interest in and
to such security deposit to Bank. Borrower, however, shall have the right to
retain such security deposits so long as there has been no Event of Default
(hereinafter defined in Paragraph 4.1 hereunder), provided Bank shall not be
obligated to any Lessee for any such security deposit until Bank obtains
possession or control of such security deposit after an Event of Default.
2. License to Collect.
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Bank grants to Borrower a revocable license to collect the Rent as it
respectively becomes due and to enforce the Leases, so long as there is no Event
of Default by Borrower hereunder. Borrower hereby irrevocably authorizes and
directs each of the Lessees under the Leases, upon receipt of a written notice
from Bank so demanding, to pay all Rent due or which becomes due under its Lease
to Bank.
3. Warranties and Covenants.
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3.1 Warranties of Borrower. Borrower hereby warrants and
represents that as of the effective date of each lease :
(a) Borrower shall be the sole holder of the
landlord's or owner's interest under the Lease and shall have the right to sell,
assign, transfer and set over the Lease and the Rent to Bank;
(b) Borrower shall have made no assignment of the
Lease other than this Assignment; and
(c) The Lease shall provide for Rent to be paid
monthly in advance; and no Rent shall be collected more than one (1) month in
advance, except as agreed by Bank.
3.2 Covenants of Borrower. Borrower hereby covenants and
agrees that Borrower shall:
(a) Fulfill, perform and observe all of the
obligations of landlord under the Leases;
(b) Give prompt written notice to Bank of any default
or claim of default by Borrower or by Lessee under any of the Leases involving
rented or rentable square footage of 5,000 square feet or more, along with a
complete copy of any written notice of such default or claim of default;
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(c) Enforce, short of termination, the performance of
all material provisions of the Leases by Lessees;
(d) Not alter, modify or amend in any material
respect, or terminate or cancel, any of the Leases, nor accept a surrender of
any of the Leases other than at the scheduled expiration thereof, nor waive any
term or condition of any of the leases, without the prior written consent of
Bank;
(e) Not collect or accept Rent more than one (1)
month in advance of the time any such Rent becomes due;
(f) Not execute any Leases, nor consent to the
assignment of Lessee's interest under any of the Leases, nor consent to the
subletting thereunder without the prior written consent of Bank, except within
parameters agreed upon in writing with the Bank;
(g) Not execute any assignment of the landlord's
interest under any of the Leases or of the Rent or any interest therein, or
suffer or permit such to occur by operation of law;
(h) Not permit any of the Leases to become
subordinate to any lien other than the lien of the Mortgage; and,
(i) Not take any action which will cause or permit
the estate of any Lessees under the Leases to merge with Borrower's interest in
the Real Property.
4. Defaults; Bank's Remedies.
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4.1 Events of Default. Any of the following shall constitute
an Event of Default hereunder:
(a) The occurrence of an Event of Default under the
Note, the Mortgage or any other of the Instruments;
(b) Any breach by Borrower of any covenant, agreement
or condition of this Assignment which is not cured in accordance with the
provisions for cure provided under Section 4(b) of the Mortgage ; or,
(c) Any material representation or warranty by
Borrower contained in this Assignment which proves to be untrue or misleading in
any material respect.
4.2 Remedies. Upon an Event of Default, Bank may at any time
thereafter, at its option and without notice or demand of any kind, and without
regard to the adequacy of security for payment of the Liabilities, exercise any
or all of the following remedies:
(a) Declare all of the Liabilities immediately due
and payable;
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(b) Take physical possession of the Real Property and
of all books, records, documents and accounts relating to the Real Property and
Borrower's business thereon, and manage and operate the Real Property and
Borrower's business thereon without interference from Borrower, at Borrower's
expense, including, without limitation, the right to rent and lease the Real
Property and to hire a manager for the Real Property;
(c) With or without taking possession of the Real
Property, to collect the Rent and any other sums owing under any of the Leases,
either by itself or through a receiver, the license to collect Rent given to
Borrower by Bank pursuant to Article 2 hereof being deemed automatically revoked
upon an Event of Default;
(d) In Borrower's or Bank's name, to institute any
legal or equitable action which Bank, in its sole discretion, deems desirable to
collect any or all of the Rent;
(e) Perform any or all obligations of Borrower under
any of the Leases or this Assignment and to take such actions as Bank deems
appropriate to protect its security, including, without limitation: (i)
appearing in any action or proceeding affecting any of the Leases or the Real
Property; (ii) executing new leases and modifying, terminating or canceling
existing Leases; (iii) collecting, modifying and compromising any Rent payable
under the Leases; and, (iv) enforcing any of the Leases, including, if
necessary, evicting tenants;
(f) Any other remedies available to Bank under
applicable law.
The foregoing remedies are in addition to any remedies afforded Bank
under any other of the Instruments, or in law or equity, by statute or
otherwise, all of which rights and remedies are reserved by Bank. All of the
remedies of Bank shall be cumulative and may be exercised at Bank's option
concurrently or successively and the exercise or beginning of exercise by Bank
of any such remedies shall not preclude the simultaneous or subsequent exercise
of the same remedy or any other remedy available to Bank. No failure or delay on
the part of Bank to exercise any remedy shall operate as a waiver thereof.
4.3 Application of Proceeds. Any amounts collected by Bank
hereunder shall be applied by Bank, to pay, in such order as Bank shall elect,
the Liabilities, including all principal; accrued, unpaid interest; prepayment
fees; late charges; advances; and all costs and expenses, including reasonable
attorneys' fees, incurred by Bank in operating, protecting, preserving and
realizing on Bank's interest in the Real Property, including any fees incurred
in the representation of Bank in any proceeding under Xxxxx 00, Xxxxxx Xxxxxx
Code; and any other amount due under the Note, the Mortgage or any other of the
Instruments. Unless otherwise determined by the Bank in its sole discretion, the
proceeds of collection shall first be applied to the accrued interest, principal
balance and late charges on the Loan, and the balance to other obligations owed
by the Borrower to the Bank.
5. No Liability; Indemnification.
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5.1 No Liability. Nothing in this Assignment shall be
construed to impose upon Bank any obligation or responsibility of Borrower, to
any Lessee under any of the Leases or to any other third party, for the control,
care, management or repair of the Real Property, the performance of any of the
landlord's obligations under the Leases, or for any dangerous or defective
condition on the Real Property.
5.2 Indemnification. Borrower shall indemnify and hold Bank
harmless from and against all obligations, liabilities, losses, costs, expenses,
civil fines, penalties or damages (including reasonable attorneys fees) which
Bank may incur, prior to such time as Bank takes physical possession of and
manages and operates the Real Property, after the occurrence of an Event of
Default by reason of this Assignment or in connection with any of the Leases or
with regard to the Real Property, except to the extent incurred by reason of the
Bank's willful misconduct or gross negligence. Borrower shall defend Bank
against any such claim or litigation involving Bank for the same. Should Bank
incur such obligation, liability, loss, cost, expense, civil fine, penalty or
damage, Borrower shall reimburse Bank upon demand. Any amount owed Bank under
this provision shall bear interest at the "Default Rate" defined and described
in the Note.
5.3 It is understood and agreed that neither the assignment of
the Rent to Bank nor the exercise by Bank of any of its rights or remedies under
this Assignment shall be deemed to make Bank a "Mortgagee-in-Possession" or
otherwise responsible or liable in any manner with respect to the Real Property
or the use, occupancy, enjoyment or operation of all or any portion thereof,
unless and until Bank, in person or agent, assumes actual possession thereof,
nor shall appointment of a receiver by any court at the request of Bank or by
agreement with Borrower or the entering into possession of the Real Property or
any part thereof by such receiver be deemed to make Bank a
"Mortgagee-in-Possession" or otherwise responsible or liable in any manner with
respect to the Real Property or the use, occupancy, enjoyment or operation of
all or any portion thereof.
6. Miscellaneous.
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6.1 The Liabilities which this Assignment secures may also be
secured by other security documents, mortgages, guarantees and agreements, and
Bank shall have the absolute right, in its sole discretion, to determine which
rights or security interests it shall at any time pursue or take any action with
respect thereto without in any way modifying or affecting any rights hereunder
or thereunder.
6.2 This Assignment may only be modified, in whole or in part,
by consent of all parties in a written instrument executed with all of the
formalities hereof.
6.3 The rights and benefits of Bank hereunder shall inure to
the benefit of its successors and assigns including, without limitation, any
party granted a participation interest herein, and shall be binding upon the
heirs, successors and assigns of Borrower.
6.4 The provisions of this Assignment shall be construed,
administered and enforced according to the internal laws of the State of New
Hampshire, except to the extent the laws of the State in which the Real Property
is located necessarily govern the enforcement of this
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Agreement. Borrower agrees that any action hereunder or related hereto may be
maintained in a federal or state court of competent jurisdiction located within
that State, and consents to the jurisdiction of any such court for all purposes
connected herewith.
6.5 This Assignment may be executed in several counterparts
and all so executed shall constitute one agreement, binding on the parties
hereto, even though all the parties are not signatory to the original or to the
same counterpart.
6.6 Borrower agrees that the amount by which the value of this
Assignment, together with any other collateral securing the Liabilities, may
exceed, from time to time, the outstanding obligation of Borrower to Bank
("equity cushion") shall not, under any circumstances, be deemed to be adequate
protection for Bank in the event of any insolvency proceedings under 11 U.S.C.
101 et seq. Borrower acknowledges that the equity cushion that may exist is
solely for the benefit of Bank to ensure the repayment in full of the
Liabilities and represents a benefit bargained for and acquired by Bank in
exchange for full and adequate consideration.
6.7 In the event Bank is at any time required to turn over,
disgorge or repay (whether to Borrower, to a Trustee in Bankruptcy or to third
parties) any payment previously received by Bank with respect to the Liabilities
(whether received from the undersigned or from third parties), then the amount
of the Liabilities secured hereunder shall be increased by the amount so turned
over or disgorged by Bank, plus reasonable expenses incurred by Bank in the
process, to the same extent as if the amount in question, and expenses, had been
advanced by Bank at the inception of the Liabilities against which the disgorged
payments were originally applied, and had remained unpaid since that date. If
the Liabilities had previously been paid in full, this Assignment shall
(notwithstanding any other term hereof) not have been released or discharged,
but shall be deemed revived and in full effect with respect to such payments.
6.8 The rights of Bank hereunder shall be irrevocable until
payment in full of all Liabilities to Bank.
6.9 To the extent possible, each provision of this Assignment
shall be interpreted in a manner as to be valid, legal and enforceable. Any
determination that any provision of the within Assignment or any application
thereof is invalid, illegal or unenforceable in any respect in any instance
shall not affect the validity, legality and enforceability of such provision in
any other instance, or the validity, legality or enforceability of any other
provision of the within Assignment.
6.10 Each party hereto intends that this Assignment shall not
benefit or create any right or cause of action in or on behalf of any person
other than the parties hereto.
6.11 Further Assurances. Borrower hereby agrees with Bank that
any and all subsequently executed Leases will, ipso facto, become subject to the
provisions hereof without the necessity of any further action on the part of
Borrower or Bank, but Borrower will promptly, upon request by Bank, execute and
deliver to Bank such further assignments thereof as Bank may request.
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IN WITNESS WHEREOF, Borrower and the Bank have executed this instrument
the date first above written.
WITNESS: BORROWER:
PRESSTEK, INC.
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
BANK:
CITIZENS BANK NEW HAMPSHIRE
/s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, Vice President
XXXXX XX XXX XXXXXXXXX
XXXXXX XX XXXXXXXXXXXX
Xx this the 30th day of October, 2000, before me, the undersigned
officer, personally appeared Xxxxxxx X. Xxxxxxxx, who acknowledged himself to be
the President and Chief Executive Officer of Presstek, Inc., a Delaware
corporation, and acknowledged that he, as such officer, being authorized so to
do, executed the foregoing instrument on behalf of such corporation for the
purposes contained therein.
/s/ Xxxxxxxx XxXxx Xxxxxx
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Justice of the Peace/Notary Public
My Commission Expires: 10/27/03
0
XXXXX XX XXX XXXXXXXXX
XXXXXX XX XXXXXXXXXXXX
Xx this the 31st day of October, 2000, before me, the undersigned
officer, personally appeared Xxxx Xxxxxxx, who acknowledged himself to be a Vice
President of Citizens Bank New Hampshire, a New Hampshire banking corporation,
and acknowledged that he, as such officer, being authorized so to do, executed
the foregoing instrument on behalf of said banking corporation for the purposes
therein contained.
/s/ Xxxxxxxx Xxxxxxx
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Justice of the Peace/Notary Public
My Commission Expires:
XXXXXXXX X. XXXXXXX, Notary Public
My Commission Expires August 12, 2003
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SCHEDULE A
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LEGAL DESCRIPTION
TRACT I: [Fee in Lot 8-1] A certain tract or parcel of land, with the
buildings and improvements located thereon, situate in Hudson, Hillsborough
County, New Hampshire, shown as LOT 8-1 on Plan entitled "Tax Map 13, Lot 8,
Subdivision of Plan of Land of Digital Equipment Corporation, Executive Drive
and Xxxxxx Road prepared for Presstek/Industrial Plant" by TFMoran, Inc. and
recorded as Plan 28159 (3 sheets); said Lot 8-1 being more particularly
described as follows:
Commencing at a point on the easterly side of Executive Drive on the
southerly side of Lot 8-1; thence
1. North 08(Degrees)22'38" East a distance of 150.00 feet to a
point;
2. North 81(Degrees)37'22" West a distance of 50.00 feet along the
end of Executive Drive to a point; thence
3. South 79(Degrees)44'22" West a distance of 535.00 feet to a point
and continuing on said course 305 feet, more or less, to the bank
of Merrimack River; thence
4. In a generally northerly direction along the bank of the
Merrimack River a distance of 755 feet, more or less, to a point
(the tie course being North 12(Degrees)33'54" East a distance of
746.84 feet);
5. South 89(Degrees)57'11"East a distance of 173 fee, more or less,
to a point; thence
6. North 35(Degrees)18'16" East a distance of 54.29 feet to a point;
thence
7. North 57(Degrees)24'50" East a distance of 323.05 feet to a
point; thence
8. South 69(Degrees)26'29" East a distance of 571.05 feet to a
point; thence
9. South 75(Degrees)00'26" East a distance of 264.82 feet to a
point; thence
10. South 08(Degrees)22'38" West a distance of 760.76 feet to a
point; thence
11. North 81(Degrees)37'22" West a distance of 470.00 to Executive
Drive at the point of beginning.
Shown to contain 22.944 acres, more or less.
EXCEPTING that portion of said Lot 8-1 shown as "Existing Cul-De-Sac
Easement B" which was conveyed by Warranty Deed of Presstek, Inc. to the Town of
Hudson which Deed was delivered to the Town of Hudson but has not been recorded,
said property being more particularly described as follows:
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A certain tract or parcel of land situate in Hudson, Hillsborough
County, New Hampshire, shown as cul-de-sac easement "B" on a plan
entitled "Southeastern Container, Inc. - Addition No. 2,
Subdivision/Consolidation Plan" prepared by Xxxxx X. Xxxxxxx, Inc. and
recorded in the Hillsborough County Registry of Deeds as Plan 26916
(Sheet 2 of 7 Sheets) being that portion of the cul-de-sac at the end
of Executive Drive, which cul-de-sac has a 70 foot radius and which
portion lies on the easterly side of Executive Drive.
The said cul-de-sac easement "B" is also shown on a plan entitled
"Subdivision Plan of Land of Digital Equipment Corporation, Executive
Drive and Xxxxxx Road, Hudson, NH prepared for Presstek/Industrial
Plant" by X.X. Xxxxx, Inc. as Plan No.28159, and is a part of the
property conveyed by Quitclaim Deed of Digital Equipment Corporation to
Presstek, Inc. dated August 22, 1996, recorded at Book 5747, Page 1811.
TRACT II: [Sewer easement appurtenant to Tract I] Certain rights and
easements appurtenant to Tract I above, in a Perpetual Xxxxxxxx Xxxx 00 feet
wide, and the Construction Easement Area, both within Lot 8 on recorded Plan
28159, and running from the north side of Tract I above to the sewer line shown
on recorded Plan 28159, all as conveyed by the Quitclaim Deed of Digital
Equipment Corporation to Presstek, Inc. dated August 22, 1996 recorded at Book
5747, Page 1811 (contained within pages 2 through 5 of 14 pages of said deed).
Property Address: 00 Xxxxxxxxx Xxxxx, Xxxxxx, XX
Tax Map/Lot #: Map 13, Lot 8-1
SUBJECT TO THE FOLLOWING:
1. Facts, matters and details referenced or depicted on the Plan
entitled "Tax Map 13, Xxx 0-0, Xx-Xxxxx Xxxx, Xxxxxxxxx Xxxxx,
Xxxxxx, XX prepared for Presstek/Industrial Plan" dated May 29,
1997, last revised 8-19-97 and/or the Surveyor's Report of
Xxxx-Xxxxx Xxxxxxx, L.L.S., P.L.S. dated 1/29/98, last revised
2/6/98.*
2. Easement from the Province of St. Xxxx of the Capuchin Order to
the Public Service Company of New Hampshire for a 150 foot strip
(includes 100 foot strip) dated in 1969 and recorded at Book
2054, Page 115; and an Easement from Xxxxxxxx X. Xxxxxxx to
Public Service Company of New Hampshire for a 100 foot strip
dated February 28, 1950, recorded at Book 1249, Page 462.*
3. Rights of the State of New Hampshire and/or the public, as well
as the rights of riparian owners up and down the Merrimack River,
in and to the bed and waters, and the land lying below the high
water xxxx, of the Merrimack River.*
4. Conservation and Pedestrian Easement from Presstek, Inc. to the
Town of Hudson dated August 29, 1996, recorded at Book 5747, Page
1825.*
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5. Tract II in the Continuation of Schedule A (the sewer line
easement) is subject to the terms of the Deed from Digital
Equipment Corporation to Presstek, Inc. dated August 22, 1996,
recorded at Book 5747, Page 1811.*
6. Easement of Presstek, Inc. to Public Service Company of New
Hampshire and New England Telephone and Telegraph Company,
recorded 5/5/97 at Book 5809, Page 1819; see Plan 28553.*
7. Facts, matters and details on any one or more of the following:
(a) recorded Site Layout Plan #28214, recorded 10/3/96, and the
#28802, and the Amended Site Layout Plan, Executive Drive,
Hudson, NH prepared for Presstek/Industrial Plan recorded as
Plan 28802, shows Phases 1, 2 and 3 on the Presstek lot,
dated 7/26/96*;
(b) recorded Site Layout Plan #30055 for 2,712 sq ft addition
for bulk chemical storage*.
(c) recorded Site Layout Plan #30056 for Phase II*;
(d) recorded Subdivision Plan #28159*.
8. Development Agreement with the Town between Presstek, Inc. and
the Town of Hudson recorded at Book 5757, Page 907 regarding Lot
8-1. Provided, however, the Company, affirmatively insures the
Insured, that: Phase I has been built and that the CAP fee
referenced in paragraph I 4 has been paid.
9. Site Development Agreement with the Town of Hudson for Lot 13-8-1
recorded September 16, 1999 at Book 6158, Page 9 regarding 2,712
sq ft addition for bulk chemical storage.
10. Development Agreement with the Town of Hudson for Lot 1-8-1
recorded September 16, 1999, at Book 6158, Page 13 for Phase II
(aka Phase 2.).
11. UCC Presstek, Inc. to Citizens Bank New Hampshire, recorded
12/24/96 at Book 5778, Page 840; all property; all assets.
12. Mortgage and Security Agreement of Presstek, Inc. to Citizens
Bank New Hampshire dated February 6, 1998, recorded February 6,
1998 at Book 5900, Page 160.
13. Assignment of Leases from Presstek, Inc. to Citizens Bank New
Hampshire dated February 6, 1998, recorded at Book 5900, Page
184.
