EXHIBIT 10.2.4
THIS INSTRUMENT PREPARED BY,
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Xxxxx X. Xxxxx, Esquire
Dechert
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
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Space Above This Line For Recorder's Use
ASSIGNMENT OF LEASES, RENTS, AND CONTRACTS
from
THI OF OHIO REAL ESTATE HOLDING COMPANY, LLC
and
THI OF OHIO AT COLUMBUS, LLC,
each a Delaware limited liability company,
and each having an address at
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxxxx 00000
(collectively, as Borrowers)
to
Ventas Realty, Limited Partnership,
a Delaware limited partnership,
having an address at
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
(Lender)
Property: Columbus Quality Care
0000 Xxxxx Xxxx
Xxxxxxxx, XX
THIS ASSIGNMENT OF LEASES, RENTS AND CONTRACTS (as amended, restated,
replaced, supplemented or otherwise modified from time to time, this
"Assignment") made as of November 1, 2002, by THI OF OHIO REAL ESTATE HOLDING
COMPANY, LLC, and THI OF OHIO AT COLUMBUS, LLC each a Delaware limited liability
company, and each having its principal place of business at 0000 Xxxxxxx Xxxx,
Xxxxx 000, Xxxx Xxxx, Xxxxxxxxxxxx 00000, collectively as assignor (each, a
"Borrower" and collectively, the "Borrowers") to VENTAS REALTY, LIMITED
PARTNERSHIP, a Delaware limited partnership, having an address at 0000
Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, as assignee (together
with its successors and assigns, "Lender").
W I T N E S S E T H
WHEREAS, this Assignment is given in connection with a loan in the maximum
principal sum of FIFTY FIVE MILLION AND NO/100 DOLLARS ($55,000,000) (the
"Loan") made by Lender to the Borrowers and certain Affiliates of the Borrowers
named therein (the "Other Borrowers") pursuant to that certain Loan Agreement
dated as of the date hereof (as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time, the "Loan Agreement") and
evidenced by that certain Promissory Note dated the date hereof made by the
Borrowers and the Other Borrowers to Lender (as the same may be amended,
restated, replaced, supplemented or otherwise modified from time to time, the
"Note");
WHEREAS, the Note is secured by that certain Open-Ended Fee and Leasehold
Mortgage and Security Agreement dated the date hereof (as the same may be
amended, restated, replaced, supplemented or otherwise modified from time to
time, the "Security Instrument") made by the Borrowers for the benefit of
Lender; and
WHEREAS, each Borrower desires to further secure the payment of the Debt
(as defined in the Loan Agreement) and the performance of all of its obligations
under the Note, the Loan Agreement and the other Loan Documents.
NOW THEREFORE, in consideration of the making of the Loan by Lender and the
covenants, agreements, representations and warranties set forth in this
Assignment:
ARTICLE 1 - ASSIGNMENT
Section 1.1 Property Assigned. Each Borrower hereby absolutely and
unconditionally assigns and grants to Lender the following property, rights,
interests and estates, now owned, or hereafter acquired by such Borrower:
(a) Leases. All existing and future "leases" and "lease
provisions" (as described in Exhibit B annexedhereto and made a part
hereof), including, without limitation, the Operating Lease (as
defined in the Security Instrument), patient admission and resident
care agreements, lettings, subleases, licenses, concessions, tenancies
or other occupancy agreements covering or encumbering all or any
portion of the Property,
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affecting the use, enjoyment, or occupancy of all or any part of that certain
lot or piece of land, more particularly described in Exhibit A annexed hereto
and made a part hereof, or all or any part of the buildings, structures,
fixtures, additions, enlargements, extensions, modifications, repairs,
replacements and improvements now or hereafter located thereon (collectively,
the "Property") and the right, title and interest of such Borrower, its
successors and assigns, therein and thereunder.
(b) Other Leases and Agreements. All other leases and other agreements,
whether or not in writing affecting the use, enjoyment or occupancy of the
Property or any portion thereof now or hereafter made, whether made before or
after the filing by or against such Borrower of any petition for relief under 11
U.S.C. (S)101 et seq., as the same may be amended from time to time (the
"Bankruptcy Code") together with any extension, renewal or replacement of the
same, this Assignment of other present and future leases and present and future
agreements being effective without further or supplemental assignment. The
"leases" and the "lease provisions" described in Subsection 1.1(a) and the
leases and other agreements described in this Subsection 1.1(b) are collectively
referred to as the "Leases".
(c) Rents. All "rents" (as described in Exhibit B annexed hereto and made a
part hereof) including, without limitation, (i) rights to payment earned under
the Leases for space in the Improvements for the operation of ongoing
businesses, such as restaurants, news stands, xxxxxx shops, beauty shops and
pharmacies and (ii) all other income, consideration, profits and benefits of any
nature arising from the ownership, possession, use or operation of the Property,
including, without limitation, all Patient Revenues and Self-Pay Receivables,
whether paid or accruing before or after the filing by or against such Borrower
of any petition for relief under the Bankruptcy Code (collectively, the
"Rents"); provided, however, "Rents" shall not include "patient trust accounts"
or "patient needs funds".
(d) Contracts. All contracts and agreements (in each case to the extent
assignable without the consent of another person or where any such consents have
been or will be obtained) to which such Borrower is a party executed in
connection with the development, construction, repair, use, operation,
maintenance, enjoyment, acquisition, ownership and management of the Property
(including, without limitation, construction contracts, architects' agreements,
engineers' contracts, licensing agreements, utility contracts, letters of
credit, escrow agreements, maintenance agreements, management agreements,
parking agreements, equipment leases, service and supply contracts, agreements
for the sale, lease or exchange of goods or other property, and agreements for
the performance of services), and, to the extent assignable, all licenses,
permits, variances, entitlements and certificates used in connection with the
development, construction, repair, use, occupancy, operation, maintenance,
enjoyment, acquisition, ownership and management of the Property (including,
without limitation, Regulatory Permits, business licenses, licenses to conduct
business and all such other permits, licenses and rights, obtained from any
Governmental Authority or private Person concerning ownership, operation, use or
occupancy of the Property) and any and all modifications, renewals, extensions
and substitutions of the foregoing (each a "Contract"; collectively, the
"Contracts"; the parties with whom or to whom such contracts have been
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or may hereafter be given are collectively, the "Contractors"). Without limiting
the foregoing, the term "Contracts" shall include:
(i) all rights of such Borrower to receive monies due and to become due
under or pursuant to the Contracts;
(ii) all claims of such Borrower for damages arising out of or for breach
of or default under the Contracts;
(iii) all rights of such Borrower to terminate, amend, supplement, modify
or waive performance under the Contracts, to compel performance and otherwise to
exercise all remedies thereunder; and
(iv) to the extent not included in the foregoing, all cash and non-cash
proceeds, products, rents, revenues, issues, profits, royalties, income,
benefits, additions, substitutions, replacements and accessions of and to any
and all of the foregoing.
(e) Warranties. All of such Borrower's right, title and interest in and to
all warranties, guarantees, and other rights of each Borrower or any manager
under any management agreement, direct and indirect, against manufacturers,
dealers, suppliers, Contractors, and others in connection with the work done or
to be done and the materials supplied or to be supplied to or for the Property
(collectively, the "Warranties").
(f) Bankruptcy Claims. All of such Borrower's claims and rights (the
"Bankruptcy Claims") to the payment of damages arising from any rejection by a
lessee of any Lease or Contract under the Bankruptcy Code.
(g) Lease Guaranties. All of such Borrower's right, title and interest in
and claims under any and all lease guaranties, letters of credit and any other
credit support (individually, a "Lease Guaranty", collectively, the "Lease
Guaranties") given by any guarantor in connection with any of the Leases or
leasing commissions (individually, a "Lease Guarantor", collectively, the "Lease
Guarantors") to such Borrower.
(h) Proceeds. All proceeds from the sale or other disposition of the
Leases, the Rents, the Contracts, the Warranties, the Lease Guaranties and the
Bankruptcy Claims.
(i) Other. All rights, powers, privileges, options and other benefits of
such Borrower under the Leases, the Contracts and the Lease Guaranties,
including without limitation the immediate and continuing right to make claim
for, receive, collect and receipt for all Rents payable or receivable under the
Leases and all sums payable under the Contracts, the Warranties, the Lease
Guaranties or pursuant thereto (and to apply the same to the payment of the Debt
or the Other Obligations), and to do all other things which such Borrower or any
lessor is or may become entitled to do under the Leases, the Contracts, the
Warranties, or the Lease Guaranties.
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(j) Entry. The right, at Lender's option, upon revocation of the license
granted herein, to enter upon the Property in person, by agent or by
court-appointed receiver, to collect the Rents.
(k) Power of Attorney. Such Borrower's irrevocable power of attorney,
coupled with an interest, to take any and all of the actions set forth in
Section 3.1 of this Assignment and any or all other actions designated by Lender
for the proper management and preservation of the Property.
(l) Other Rights and Agreements. Any and all other rights of such Borrower
in and to the items set forth in subsections (a) through (k) above, and all
amendments, modifications, replacements, renewals and substitutions thereof.
ARTICLE 2 - TERMS OF ASSIGNMENT
Section 2.1 Present Assignment and License Back. It is intended by each
Borrower that this Assignment constitute a present, absolute assignment of the
Leases, Rents, Contracts, Warranties, Lease Guaranties and Bankruptcy Claims,
and not an assignment for additional security only. Nevertheless, subject to the
terms of this Section 2.1, Section 7.1(h) of the Security Instrument, the Loan
Agreement, the Collection Account Agreement and the Cash Management Agreement,
Lender grants to the Borrowers a revocable license to collect, receive, use and
enjoy the Rents, as well as other sums due under the Contracts, Warranties and
Lease Guaranties. The Borrowers shall hold the Rents, as well as all sums
received pursuant to any Contract, Warranty and Lease Guaranty, or a portion
thereof sufficient to discharge all current sums due on the Debt, in trust for
the benefit of Lender for use in the payment of such sums.
Section 2.2 Notice to Lessees. To the extent not already being deposited
into the Collection Account pursuant to the Collection Account Agreement, each
Borrower hereby authorizes and directs the lessees named in the Leases or any
other future lessees or occupants of the Property and all Contractors and Lease
Guarantors to pay over to Lender or to such other party as Lender directs all
Rents and all sums due under any Contracts, Warranties and Lease Guaranties upon
receipt from Lender of written notice to the effect that Lender is then the
holder of this Assignment and that an Event of Default (as defined in the Loan
Agreement) exists, and to continue so to do until otherwise notified by Lender.
Section 2.3 Incorporation by Reference. All representations, warranties,
covenants, conditions and agreements contained in the Loan Agreement and the
other Loan Documents as same may be modified, renewed, substituted or extended
are hereby made a part of this Assignment to the same extent and with the same
force as if fully set forth herein.
ARTICLE 3 - REMEDIES
Section 3.1 Remedies of Lender. Upon the occurrence of an Event of Default
and during the continuation thereof, the license granted to the Borrowers in
Section 2.1 of this Assignment shall automatically be revoked, and Lender shall
immediately be entitled to possession of all Rents and sums due under any
Contracts, Warranties and Lease Guaranties, whether or not Lender enters upon or
takes control of the Property. In addition, Lender may, at
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its option, without waiving such Event of Default and during the continuation
thereof, without regard to the adequacy of the security for the Debt, either in
person or by agent, nominee or attorney, with or without bringing any action or
proceeding, or by a receiver appointed by a court, dispossess each Borrower and
its agents and servants from the Property, without liability for trespass,
damages or otherwise and exclude each Borrower and its agents or servants wholly
therefrom, and take possession of the Property and all books, records and
accounts relating thereto and have, hold, manage, lease and operate the Property
on such terms and for such period of time as Lender may deem proper and either
with or without taking possession of the Property in its own name, demand, xxx
for or otherwise collect and receive all Rents and sums due under all Contracts,
Warranties and Lease Guaranties, including those past due and unpaid with full
power to make from time to time all alterations, renovations, repairs or
replacements thereto or thereof as Lender may deem proper and may apply the
Rents and sums received pursuant to any Contracts, Warranties and Lease
Guaranties to the payment of the following in such order and proportion as
Lender in its sole discretion may determine, any law, custom or use to the
contrary notwithstanding: (a) all expenses of managing and securing the
Property, including, without being limited thereto, the salaries, fees and wages
of a managing agent and such other employees or agents as Lender may deem
necessary, and all expenses of operating and maintaining the Property,
including, without being limited thereto, all taxes, charges, claims,
assessments, water charges, sewer rents and any other liens, and premiums for
all insurance which Lender may deem necessary, and the cost of all alterations,
renovations, repairs or replacements, and all expenses incident to taking and
retaining possession of the Property; and (b) the Debt, together with all costs
and reasonable attorneys' fees. In addition, upon the occurrence of an Event of
Default and during the continuation thereof, Lender, at its option, may (1)
complete any construction on the Property in such manner and form as Lender
deems advisable, (2) exercise all rights and powers of any Borrower under any
Leases, Contracts, Warranties or Lease Guaranties, without any interference or
objection from such Borrower, including, without limitation, the right to
negotiate, execute, cancel, enforce or modify Leases, obtain and evict tenants,
and demand, xxx for, collect and receive all Rents from the Property and all
sums due under any Contracts, Warranties and Lease Guaranties, (3) require each
Borrower to pay monthly in advance to Lender, or any receiver appointed to
collect the Rents, the fair and reasonable rental value for the use and
occupancy of such part of the Property as may be in possession of such Borrower
or (4) require each Borrower to vacate and surrender possession of the Property
to Lender or to such receiver and, in default thereof, such Borrower may be
evicted by summary proceedings or otherwise. Additionally, upon the occurrence
of an Event of Default and during the continuation thereof, if and to the extent
permitted by law and the terms of the Contracts and Warranties, Lender may, with
or without entry upon the Property, at its sole option, take over and enjoy the
benefits of the Contracts and Warranties, exercise any Borrower's rights under
the Contracts and Warranties, and perform all acts in the same manner and to the
same extent as such Borrower might do. Lender may also effect new Regulatory
Permits, Contracts and Warranties, cancel or surrender existing Regulatory
Permits, Contracts and Warranties, alter or amend the terms of and renew
Contracts, Warranties and Regulatory Permits, and make concessions to the
Governmental Authorities, the Contractors, warrantors and others. To the extent
permitted by law, Lender hereby releases any and all claims which any Borrower
has or might have against Lender arising out of any such actions by Lender
unless arising from Lender's fraud or willful misconduct.
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Section 3.2 Other Remedies. Nothing contained in this Assignment and no act
done or omitted by Lender pursuant to the power and rights granted to Lender
hereunder shall be deemed to be a waiver by Lender of its rights and remedies
under the Loan Agreement, the Note, or the other Loan Documents and this
Assignment is made and accepted without prejudice to any of the rights and
remedies possessed by Lender under the terms thereof. The right of Lender to
collect the Debt and to enforce any other security therefor held by it may be
exercised by Lender either prior to, simultaneously with, or subsequent to any
action taken by it hereunder. Each Borrower hereby absolutely, unconditionally
and irrevocably waives any and all rights to assert any setoff, counterclaim or
crossclaim of any nature whatsoever with respect to its obligations under this
Assignment, the Loan Agreement, the Note, the other Loan Documents or otherwise
with respect to the Loan in any action or proceeding brought by Lender to
collect same, or any portion thereof, or to enforce and realize upon the lien
and security interest created by this Assignment, the Loan Agreement, the Note,
or any of the other Loan Documents (provided, however, that the foregoing shall
not be deemed a waiver of any Borrower's right to assert any compulsory
counterclaim if such counterclaim is compelled under local law or rule of
procedure, nor shall the foregoing be deemed a waiver of any Borrower's right to
assert any claim which would constitute a defense, setoff, counterclaim or
crossclaim of any nature whatsoever against Lender in any separate action or
proceeding).
Section 3.3 Other Security. Lender may take or release other security for
the payment of the Debt, may release any party primarily or secondarily liable
therefor and may apply any other security held by it to the reduction or
satisfaction of the Debt without prejudice to any of its rights under this
Assignment.
Section 3.4 Non-waiver. The exercise by Lender of the option granted it in
Section 3.1 of this Assignment and the collection of the Rents and sums due
under the Contracts, Warranties and Lease Guaranties and the application thereof
as herein provided shall not be considered a waiver of any default by any
Borrower under the Note, the Loan Agreement, the Leases, this Assignment or the
other Loan Documents. The failure of Lender to insist upon strict performance of
any term hereof shall not be deemed to be a waiver of any term of this
Assignment. Neither Borrower shall be relieved of its obligations hereunder by
reason of (a) the failure of Lender to comply with any request of any Borrower
or any other party to take any action to enforce any of the provisions hereof or
of the Loan Agreement, the Note or the other Loan Documents, (b) the release
regardless of consideration, of the whole or any part of the Property, or (c)
any agreement or stipulation by Lender extending the time of payment or
otherwise modifying or supplementing the terms of this Assignment, the Loan
Agreement, the Note, or the other Loan Documents. Lender may resort for the
payment of the Debt to any other security held by Lender in such order and
manner as Lender, in its discretion, may elect. Lender may take any action to
recover the Debt, or any portion thereof, or to enforce any covenant hereof
without prejudice to the right of Lender thereafter to enforce its rights under
this Assignment. The rights of Lender under this Assignment shall be separate,
distinct and cumulative and none shall be given effect to the exclusion of the
others. No act of Lender shall be construed as an election to proceed under any
one provision herein to the exclusion of any other provision.
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Section 3.5 Bankruptcy.
(a) Upon or at any time after the occurrence of an Event of Default, Lender
shall have the right to proceed in its own name or in the name of any Borrower
in respect of any claim, suit, action or proceeding relating to the rejection of
any Lease, including, without limitation, the right to file and prosecute, to
the exclusion of such Borrower, any proofs of claim, complaints, motions,
applications, notices and other documents, in any case in respect of the lessee
under such Lease under the Bankruptcy Code.
(b) If there shall be filed by or against any Borrower a petition under the
Bankruptcy Code, and such Borrower, as lessor under any Lease, shall determine
to reject such Lease pursuant to Section 365(a) of the Bankruptcy Code, then
such Borrower shall give Lender not less than ten (10) days' prior notice of the
date on which such Borrower shall apply to the bankruptcy court for authority to
reject the Lease. Lender shall have the right, but not the obligation, to serve
upon such Borrower within such ten-day period a notice stating that (i) Lender
demands that such Borrower assume and assign the Lease to Lender pursuant to
Section 365 of the Bankruptcy Code and (ii) Lender covenants to cure or provide
adequate assurance of future performance under the Lease. If Lender serves upon
such Borrower the notice described in the preceding sentence, such Borrower
shall not seek to reject the Lease and shall comply with the demand provided for
in clause (i) of the preceding sentence within thirty (30) days after the notice
shall have been given, subject to the performance by Lender of the covenant
provided for in clause (ii) of the preceding sentence.
ARTICLE 4 - NO LIABILITY,FURTHER ASSURANCES
Section 4.1 No Liability of Lender. This Assignment shall not be construed
to bind Lender to the performance of any of the covenants, conditions or
provisions contained in any Lease Contract, Warranty or Lease Guaranty or
otherwise impose any obligation upon Lender. Lender shall not be liable to the
Governmental Authorities, the Contractors or others by reason of any default by
any party under the Regulatory Permits, the Contracts or the Warranties. Lender
shall not be liable for any loss sustained by any Borrower resulting from
Lender's failure to let the Property after an Event of Default or from any other
act or omission of Lender in managing the Property after an Event of Default
unless such loss is caused by the willful misconduct or bad faith of Lender.
Lender shall not be obligated to perform or discharge any obligation, duty or
liability under the Leases, the Contracts, the Warranties or any Lease
Guaranties or under or by reason of this Assignment and each Borrower shall
indemnify Lender for, and hold Lender harmless from, any and all liability, loss
or damage which may or might be incurred under the Leases, any Lease Guaranties
or under or by reason of this Assignment and from any and all claims and demands
whatsoever, including the defense of any such claims or demands which may be
asserted against Lender by reason of any alleged obligations and undertakings on
its part to perform or discharge any of the terms, covenants or agreements
contained in the Leases or any Lease Guaranties. Should Lender incur any such
liability, the amount thereof, including costs, expenses and reasonable
attorneys' fees, shall be secured by this Assignment and by the Security
Instrument and the other Loan Documents and each Borrower shall reimburse Lender
therefor immediately upon demand and upon the failure of such Borrower to do so
Lender may, at its option, declare all sums secured by this Assignment and by
the Security Instrument and the other
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Loan Documents immediately due and payable. This Assignment shall not operate to
place any obligation or liability for the control, care, management or repair of
the Property upon Lender, nor for the carrying out of any of the terms and
conditions of the Leases or any Lease Guaranties; nor shall it operate to make
Lender responsible or liable for any waste committed on the Property by the
tenants or any other parties, or for any dangerous or defective condition of the
Property including, without limitation, the presence of any Hazardous Substances
(as defined in the Security Instrument), or for any negligence in the
management, upkeep, repair or control of the Property resulting in loss or
injury or death to any tenant, licensee, employee or stranger.
Section 4.2 No Mortgagee in Possession. Nothing herein contained shall be
construed as constituting Lender a "mortgagee in possession" in the absence of
the taking of actual possession of the Property by Lender. In the exercise of
the powers herein granted Lender, no liability shall be asserted or enforced
against Lender, all such liability being expressly waived and released by each
Borrower.
Section 4.3 Further Assurances. Each Borrower will, at its cost, and
without expense to Lender, do, execute, acknowledge and deliver all and every
such further acts, conveyances, assignments, notices of assignments, transfers
and assurances as Lender shall, from time to time, reasonably require for the
better assuring, conveying, assigning, transferring and confirming unto Lender
the property and rights hereby assigned or intended now or hereafter so to be,
or which such Borrower may be or may hereafter become bound to convey or assign
to Lender, or for carrying out the intention or facilitating the performance of
the terms of this Assignment or for filing, registering or recording this
Assignment and, on demand, will execute and deliver and hereby authorizes Lender
to execute in the name of such Borrower to the extent Lender may lawfully do so,
one or more financing statements, chattel mortgages or comparable security
instruments, to evidence more effectively the lien and security interest hereof
in and upon the Leases.
Section 4.4 Copies Furnished. Each Borrower shall, upon the reasonable
request of Lender, furnish Lender with a complete list of all Contracts and
Warranties. Further, if requested, each Borrower shall deliver to Lender
executed or certified copies of any management agreement, and all Regulatory
Permits, Contracts and Warranties and other written agreements, correspondence
and memoranda between such Borrower (and its predecessors in title) and any
manager, the Contractors, the Governmental Authorities and others, setting forth
the contractual or other arrangements between them. Such requests may be made at
any reasonable time. Monthly requests, or more frequent requests if made after
the occurrence of an Event of Default, shall be deemed reasonable.
ARTICLE 5 - MISCELLANEOUS PROVISIONS
Section 5.1 Definitions. Capitalized terms used and not defined herein
shall have the respective meaning ascribed thereto in the Loan Agreement.
Section 5.2 Conflict of Terms. In case of any conflict between the terms of
this Assignment and the terms of the Loan Agreement, the terms of the Loan
Agreement shall prevail.
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Section 5.3 No Oral Change. This Assignment and any provisions hereof may
not be modified, amended, waived, extended, changed, discharged or terminated
orally, or by any act or failure to act on the part of any Borrower or
Lender, but only by an agreement in writing signed by the party against whom the
enforcement of any modification, amendment, waiver, extension, change, discharge
or termination is sought.
Section 5.4 General Definitions. All capitalized terms not defined herein
shall have the respective meanings set forth in the Loan Agreement. Unless
the context clearly indicates a contrary intent or unless otherwise specifically
provided herein, words used in this Assignment may be used interchangeably in
singular or plural form and the word "Borrower" shall mean "each Borrower and
any subsequent owner or owners of the Property or any part thereof or interest
therein," the word "Lender" shall mean "Lender and any subsequent holder of the
Note, the word "Note" shall mean "the Note and any other evidence of
indebtedness secured by the Loan Agreement," the word "Property" shall include
any portion of the Property and any interest therein, the phrases "attorneys'
fees," "legal fees" and "counsel fees" shall include any and all attorney's,
paralegal and law clerk fees and disbursements, including, but not limited to,
fees and disbursements at the pre-trial, trial and appellate levels incurred or
paid by Lender in protecting its interest in the Property, the Leases and the
Rents and enforcing its rights hereunder; whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice versa.
Section 5.5 Inapplicable Provisions. If any term, covenant or condition of
this Assignment is held to be invalid, illegal or unenforceable in any
respect,this Assignment shall be construed without such provision.
Section 5.6 Governing Law. This Assignment shall be governed by and
construed in accordance with the laws of the state in which the Property is
located.
Section 5.7 Termination of Assignment. Upon payment in full of the Debt,
this Assignment shall become and be void and of no effect.
Section 5.8 Notices. All notices or other written communications hereunder
shall be delivered in accordance with Section 11.6 of the Loan Agreement.
Section 5.9 Waiver of Trial by Jury. EACH BORROWER HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING
DIRECTLY OR INDIRECTLY TO THE LOAN EVIDENCED BY THE NOTE, THE APPLICATION FOR
THE LOAN EVIDENCED BY THE NOTE, THIS ASSIGNMENT, THE NOTE, OR THE OTHER LOAN
DOCUMENTS OR ANY ACTS OR OMISSIONS OF LENDER, ITS OFFICERS, EMPLOYEES, DIRECTORS
OR AGENTS IN CONNECTION THEREWITH. THIS WAVIER OF RIGHT TO TRIAL BY JURY IS
GIVEN KNOWINGLY AND VOLUNTARILY BY EACH BORROWER, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. LENDER IS EACH
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HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER.
Section 5.10 Exculpation. The provisions of Section 11.22 of the Loan
Agreement are hereby incorporated by reference into this Assignment to the same
extent and with the same force as if fully set forth herein.
Section 5.11 Successors and Assigns. This Assignment shall be binding upon
and inure to the benefit of each Borrower and Lender and their respective
successors and assigns forever.
Section 5.12 Headings, Etc. The headings and captions of various paragraphs
of this Assignment are for convenience of reference only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
Section 5.13 Waiver of Notice. To the extent permitted by applicable law,
neither Borrower shall be entitled to any notices of any nature whatsoever from
Lender except with respect to matters for which this Assignment specifically and
expressly provides for the giving of notice by Lender to such Borrower and
except with respect to matters for which Lender is required by applicable law to
give notice, and each Borrower hereby expressly waives the right to receive any
notice from Lender with respect to any matter for which this Assignment does not
specifically and expressly provide for the giving of notice by Lender to such
Borrower.
Section 5.14 Entire Agreement. The Note, the Loan Agreement, the Security
Instrument, this Assignment and the other Loan Documents constitute the entire
understanding and agreement between the Borrowers and Lender with respect to the
transactions arising in connection with the Debt and supersede all prior written
or oral understandings and agreements between the Borrowers and Lender with
respect thereto. Each Borrower hereby acknowledges that, except as incorporated
in writing in the Note, the Loan Agreement, the Security Instrument, this
Assignment and the other Loan Documents, there are not, and were not, and no
persons are or were authorized by Lender to make, any representations,
understandings, stipulations, agreements or promises, oral or written, with
respect to the transaction which is the subject of the Note, the Loan Agreement,
this Security Instrument, this Assignment and the other Loan Documents.
Section 5.15 Secondary Market. Lender may sell, transfer and deliver the
Note and assign the Security Instrument, this Assignment and the other Loan
Documents to one or more investors in the secondary mortgage market
("Investors"). In connection with such sale, Lender may retain or assign
responsibility for servicing the Loan, including the Note, the Security
Instrument, this Assignment and the other Loan Documents, or may delegate some
or all of such responsibility and/or obligations to a servicer including, but
not limited to, any subservicer or master servicer, on behalf of the Investors.
All references to Lender herein shall refer to and include any such servicer to
the extent applicable.
Section 5.16 Cross-Collateralization. Without limitation to any other right
or remedy provided to Lender in this Assignment or any of the other Loan
Documents, each Borrower acknowledges and agrees that (i) upon the occurrence of
an Event of Default, to the
10
fullest extent permitted by law, Lender shall have the right to pursue all of
its rights and remedies in one proceeding, or separately and independently in
separate proceedings which Lender, in its sole and absolute discretion, shall
determine from time to time, (ii) Lender is not required to xxxxxxxx assets,
sell any collateral for the Loan in any inverse order of alienation, or be
subjected to any "one action" or "election of remedies" law or rule, (iii) the
exercise by Lender of any remedies against any collateral for the Loan will not
impede Lender from subsequently or simultaneously exercising remedies against
other collateral for the Loan; (iv) all Liens and other rights, remedies and
privileges provided to Lender in the Loan Documents or otherwise shall remain in
full force and effect until Lender has exhausted all of its remedies against the
collateral for the Loan and all of the collateral for the Loan has been
foreclosed, sold and/or otherwise realized upon in satisfaction of the Loan; and
(v) all of the Properties shall remain security for the performance of all of
the obligations of each Borrower hereunder, under the Note and under any of the
other Loan Documents.
Section 5.17 Joint and Several Liability. If more than one Person has
executed this Assignment as "Borrower," the representations, covenants,
warranties and obligations of all such Persons hereunder shall be joint and
several. Each Borrower further acknowledges and agrees that it shall be jointly
and severally liable for the obligations of all Other Borrowers under the Loan
Documents.
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11
IN WITNESS WHEREOF, each Borrower has executed under seal this
Assignment the day and year first above written.
THI OF OHIO REAL ESTATE HOLDING
COMPANY, LLC, a Delware limited liability
company
By: /s/ XXXX X. XXXXX (SEAL)
-----------------------------
Name: Xxxx X. Xxxxx
Title: Vice-President
THI OF OHIO AT COLUMBUS, LLC,a
Delaware limited liability company
By: /s/ XXXX X. XXXXX (SEAL)
-----------------------------
Name: Xxxx X. Xxxxx
Title: Vice-President
ACKNOWLEDGMENT
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On October 30, 2002, before me, a Notary Public in and for said state,
personally appeared Xxxx X. Xxxxx, personally known to me or proved to me on the
basis of satisfactory evidence to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity, and that by his/her/their signature on the instrument,
the person, or the entity upon behalf of which the person acted, executed the
instrument.
/s/ XXXXXX XXXX
----------------------------
Notary Public:
My commission expires: 6-30-03
ACKNOWLEDGMENT [Notary Seal]
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On October 30, 2002, before me, a Notary Public in and for said state,
personally appeared Xxxx X. Xxxxx, personally known to me or proved to me on the
basis of satisfactory evidence to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity, and that by his/her/their signature on the instrument,
the person, or the entity upon behalf of which the person acted, executed the
instrument.
/s/ XXXXXX XXXX
----------------------------
Notary Public:
My commission expires: 6-30-03
THIS INSTRUMENT PREPARED BY,
RECORDING REQUESTED BY AND [Notary Seal]
WHEN RECORDED RETURN TO:
Xxxxx X. Xxxxx, Esquire
Dechert
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
