Assignment of Rents, Leases and Profits, dated October 31, 2011, by and between the Company and New York Mellon Trust Company, N.A

THIS ASSIGNMENT OF RENTS, LEASES AND PROFITS (this “Assignment”) is made and entered into as of this 31st day of October, 2011, by BOVIE MEDICAL CORPORATION, a Delaware corporation (the "Assignor"), with an address at 5115 Ulmerton road, Clearwater, Florida 33760 in favor of THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. a national banking association (the "Mortgagee"), with an address at 10161 Centurion Parkway, Jacksonville, Florida 32256.

WHEREAS, the Assignor, is the owner of that certain tract or parcel of land located in Clearwater, Pinellas County, Florida described in Exhibit A attached hereto (the "Premises") and made a part hereof, together with the improvements now or hereafter erected thereon; and

WHEREAS, the Pinellas  County Industrial Development Authority (the "Issuer"), previously issued its Industrial Development Revenue Bonds (Bovie Medical Corporation Project), Series 2008, in the original aggregate- principal amount of $4,000,000.00 (the "Bonds"), pursuant to an Indenture of Trust, dated as of' November 1, 2008 (the "Original Indenture"), by and between the Issuer and Mortgagee, as Trustee (the "Trustee"). for the purpose of financing the acquisition of the Premises and certain equipment and the cost of equipping and renovating an approximately 60,000 square foot manufacturing  facility  for the manufacture of medical devices and accessories (the "Bond Project") thereon; and

 

WHEREAS, the proceeds of the Bonds were loaned to the Assignor, pursuant to a Loan Agreement dated as of November 1, 2008 (the "Original Loan Agreement"), by and between the Issuer and the Assignor; and

 

WHEREAS, on or about the date hereof, (i) the Issuer and the Mortgagee, as Trustee, are entering into an Amended and Restated Indenture of Trust, dated as of the date hereof (collectively with the Original Indenture, and as the same may be hereafter further amended, modified, supplemented, restated or replaced, the "Indenture"), and (ii) the Issuer and the Assignor are entering into that certain First Amendment to Loan Agreement, dated as of the date hereof (collectively with the Original Loan Agreement, and as the same may hereafter be amended, modified, supplemented, restated or replaced, the "Agreement"); and

 

 

WHEREAS, PNC Bank, National Association (the "Bank"), has purchased the Bonds and in connection therewith, the Bank and the Assignor have entered into a Credit Agreement, of even date herewith (as the same may hereafter be amended, modified, restated or replaced, the "Credit Agreement"), pursuant to which the Assignor has agreed to make prompt and full payment of all Payment Obligations (as defined in the Mortgage hereinafter described) of the Assignor to the Bank; and

WHEREAS, the Assignor has agreed to assign its interest under all present and future leases, use agreements, occupancy agreements, licenses or other similar instruments, including, without limitation, those certain existing leases described on Exhibit B attached hereto, if any, as the same may be amended, modified, extended or renewed from time to time (collectively, the "Leases"), of all or a portion of the improvements erected or to be erected on the Premises to the Mortgagee, in the manner hereinafter provided as additional security for the payment of the Obligations (as defined in the Mortgage);

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Assignor hereby assigns, transfers and sets over to the Mortgagee, as security for the payment of the Obligations and the observance and performance of all the terms, covenants and provisions of the Credit Documents, the Mortgage and this Assignment, all of the Assignor's right, title and interest in and to the Leases, all of the rents, additional, rents, charges, issues, profits and other payments for the use or occupancy of the Premises (including rooms and other public facilities in hotels, motels or other lodging properties) payable under the Leases (which are now in existence or which may hereafter be executed during the term hereof) and all cash or other property deposited by tenants to secure performance of their obligations under the Leases, including, without limitation, the immediate and continuing right to receive and collect all condemnation awards and insurance proceeds, the right to accept or reject any offer made by any tenant pursuant to its Lease to purchase the Premises and any other property subject to the Lease as therein provided and to perform all other necessary or appropriate acts with respect to such Leases as agent and attorney-in-fact for Assignor, which appointment is irrevocable and coupled with an interest, and the right to make all waivers and agreements, to give and receive all notices, consents and releases, to take such action upon the happening of a default under any Lease, including the commencement, conduct and consummation of proceedings at law or in equity as shall be permitted under any provision of any Lease or by  any law, tend to do any and all other things whatsoever which the Assignor is or may become entitled, to do under any such Lease all from the date hereof to the end of the respective terms of the Leases and any renewals and extensions thereof, and in all cases both before and after the commencement by or against the Assignor of any case or proceeding under any Federal or State bankruptcy, insolvency or similar law (collectively, the "Rents"). This Assignment is a present absolute and unconditional assignment from the Assignor to the Mortgagee and not merely the granting of a security interest. The Assignor further represents, warrants and covenants to the Mortgagee as follows:

3.         Restrictions on Actions Under Leases. The  Assignor shall not, without the prior written consent of the Assignee, (i) further assign or attempt to assign the Leases or any portion of the Rents due and payable or to become due and payable thereunder, (ii) alter, modify, amend or change the terms of any of the Leases or surrender, renew, cancel or terminate the same or do anything whatsoever affecting any guaranty of any of the Leases or consent to any of the foregoing, (iii) accept prepayments of any portion of the Rents for a period of more than one (1) month in advance, (iv) enter into any lease, license or other agreement for occupancy after the date hereof for the Premises, or any part thereof, without the prior written consent of the Mortgagee, or (v) discount any future accruing Rents.

4.         Mortgagee Not Obligated Under Leases. This Assignment shall not be deemed or construed to obligate the Mortgagee to take any action or incur any expense or perform or discharge any obligation, duty or liability under the Leases, and the Assignor hereby agrees to indemnify and hold the Mortgagee harmless from and against al Liability, cost, loss or damage, including, but not limited to, reasonable attorneys’ fees, which the Mortgagee may or might incur under the Leases (or any of them) or relating to the Premises or under or by reason of this Assignment and from and against the Mortgagee by reason of any alleged obligation or undertaking on the Mortgagee's part to perform or discharge any of the terms, covenants or provisions contained in the Leases. Nothing contained in this Assignment and no entry by the Mortgagee upon the Premises as hereinafter provided, shall be construed to constitute the Mortgagee as a mortgagee in possession or render the Mortgagee liable in any way for any injury or damage to person or property sustained by any person or entity in, on, or about the Premises.

5.         Revocable License; Event of Default. This Assignment has been made as additional security for the payment of the Obligations and the observance and performance by the Assignor of the terms, covenants and provisions of the Credit Documents on the Assignor's part to be observed and performed. So long  as no Event of Default shall exist under the Credit Agreement, the Mortgage or any of the other Credit Documents and no event shall have occurred which, by the lapse of time or the giving of notice, or both, is or would become an Event of Default thereunder, the Assignor shall have a license to occupy the Premises as landlord or otherwise and to collect, use and enjoy the rents, issues and profits and other sums payable under and by virtue of any Lease (but only as the same become due under the provisions of such Lease) and to enforce the covenants of the Leases, provided that any amounts collected by the Assignor shall be held by the Assignor in trust for the benefit of the Mortgagee for use in the payment of all sums due on the Obligations.

 

Upon the occurrence of an Event of Default under the Credit Agreement, the Mortgage or any of the other Credit Documents, the right and license granted to the Assignor in this Assignment shall be automatically revoked without any notice or further action whatsoever and the Mortgagee, at its option, shall have the complete right, power and authority (a) without taking possession, to demand, collect and receive and sue for the Rents and other sums payable under the Leases and, after deducting all reasonable costs and expenses of collection (including, without limitation, reasonable attorneys' fees) as determined by the Mortgagee, apply the net proceeds thereof to the payment of any indebtedness secured hereby; (b) to declare all sums secured hereby immediately due and payable, and exercise any or all of the rights and remedies contained in the Credit Agreement, the Mortgage, any of the other Credit Documents or at law or in equity; and (c) without regard to the adequacy of the security, with or without process of Law; personally or by agent or attorney, or by a receiver to be appointed by court, enter upon, take and maintain possession of and hold, maintain, control and operate the Premises, or any part thereof, together, with all documents, books, records, papers, and accounts relating thereto and exclude the Assignor and its agents and servants therefrom, as fully and to the same extent as the Assignor could do if in possession and in such event, without limitation and at the expense of the Assignor, from time to time cause to be made all necessary or proper repairs, renewals, replacements, useful alterations, additions, betterments and improvements to the Premises or any part thereof, as the Mortgagee deems judicious, and pay taxes, assessments and other charges on the Premises, or any part thereof, and insure and reinsure the same, and lease the Premises, or any part thereof, for such terms and on such terms as the Mortgagee deems desirable, including leases for terms expiring beyond the maturity of the indebtedness secured by the Credit Documents and cancel any Lease or sublease thereof for any cause or on any ground. The Mortgagee may retain and apply the Rents toward payment of the obligations in such priority and proportions as the Mortgagee, in its sole discretion, shall deem proper.

6.         INSTRUCTIONS TO TENANTS-AFTER DEFAULT. TIME IS OF THE ESSENCE HEREOF. THE ASSIGNOR HEREBY CONSENTS TO AND IRREVOCABLY AUTHORIZES AND DIRECTS THE TENANTS UNDER THE LEASES AND ANY SUCCESSOR TO THE INTEREST OF ANY OF SAID TENANTS, UPON DEMAND AND NOTICE FROM THE MORTGAGEE OF THE MORTGAGEE'S RIGHT TO RECEIVE THE RENTS AND OTHER AMOUNTS DUE UNDER SUCH LEASES, TO PAY TO THE MORTGAGEE THE RENTS AND OTHER AMOUNTS DUE OR TO BECOME DUE UNDER THE LEASES AND SAID TENANTS SHALL HAVE THE RIGHT TO RELY UPON SUCH DEMAND AND NOTICE FROM THE MORTGAGEE AND SHALL PAY SUCH RENTS AND OTHER AMOUNTS TO THE MORTGAGEE WITHOUT ANY OBLIGATION OR RIGHT TO DETERMINE THE ACTUAL EXISTENCE OF ANY DEFAULT OR EVENT CLAIMED BY THE MORTGAGEE AS THE BASIS FOR THE MORTGAGEE'S RIGHT TO RECEIVE SUCH RENTS AND OTHER AMOUNTS AND NOTWITHSTANDING ANY NOTICE FROM OR CLAIM OF ASSIGNOR TO THE CONTRARY, AND ASSIGNOR SHALL HAVE NO RIGHT TO CLAIM AGAINST SAID TENANTS FOR ANY SUCH RENTS AND OTHER AMOUNTS SO PAID BY SAID TENANTS TO THE MORTGAGEE.

 

7.          Operations of Premises After Default. Upon the occurrence of a default or an Event of Default under the Credit Agreement, the Mortgage or any of the other Credit Documents, the Mortgagee shall have the right, at its option, to enter and take over and assume the management, operation and maintenance of the Premises and to perform all necessary and proper acts and to expend such sums out of the income of the Premises as may be necessary in connection therewith, in the same manner and to the same extent as the Assignor might do, including the right to effect new leases, cancel or surrender some or all of the Leases, alter, modify or amend the provisions thereof, or make concessions to the tenants thereunder, and the Assignor hereby releases and waives all claims against the Mortgagee arising out of such management, operation and maintenance. In addition to the above, upon the occurrence of a default or an Event of Default under the Credit Agreement, the Mortgage or any of the other Credit Documents, the Assignor expressly consents to the appointment of a receiver for the Premises, without notice, either by the Mortgagee or a court of competent jurisdiction, to take all acts in connection with the Premises permitted by law or in equity and to deduct from any and all rents received from the Leases the customary or statutory amount in the country wherein the Premises is located to compensate such receiver for its actions.