EXHIBIT 10.40
ASSIGNMENT OF LEASES,
RENTS AND SECURITY DEPOSITS
from
__________________________,
as Assignor
to
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
as Assignee
Dated as of January , 1997
___________________________________________________________
Prepared and drafted by and
after recording, return to:
Xxxxxx Xxxxxxxxxxx, Esq.
c/o Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ASSIGNMENT OF LEASES, RENTS AND SECURITY DEPOSITS
THIS ASSIGNMENT OF LEASES, RENTS AND SECURITY DEPOSITS (herein,
together with all amendments and supplements thereto, this "Assignment"), dated
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as of this ___ day of January, 1997, by and among _________, a ____ [limited
partnership/corporation/limited liability company], having an address c/o
__________, as assignor ("Assignor") and XXXXXX XXXXXXXX TRUST COMPANY OF NEW
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YORK, a New York banking corporation, having an address at 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, as assignee (together with its successors and assigns,
"Assignee").
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W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, simultaneously herewith, Assignee has agreed to make a loan
to Assignor in the aggregate principal amount of Eighty Four Million Dollars
($84,000,000) (the "Loan") evidenced by a mortgage note (the "Note") and secured
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by the Indenture of Mortgage, Deed of Trust, Security Agreement, Financing
Statement, Fixture Filing and Assignment of Leases, Rents and Security Deposits,
dated as of even date herewith, from Assignor to Assignee (the "Mortgage");
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WHEREAS, as a condition to making the Loan, Assignee has required that
Assignor enter into this Assignment for the benefit of Assignee.
NOW, THEREFORE, Assignor, in consideration of TEN DOLLARS ($10.00),
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, does hereby assign, transfer and set over unto Assignee,
subject to the terms hereof, all of the right, title and interest of Assignor in
and to all of those certain leases now or hereafter affecting all or a portion
of the real property more particularly described on Exhibits A-1 - A-13 hereto
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(the "Properties"), together with all rents, security deposits, income and
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profits arising from said leases, all modifications, renewals and extensions
thereof and any guarantees of the lessee's obligations under said leases (each
of said leases and all such guarantees, modifications, renewals and extensions
relating thereto being individually re-
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ferred to as a "Lease" and collectively referred to as the "Leases").
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THIS ASSIGNMENT is an absolute, present and irrevocable assignment and
is made for the purpose of securing:
A. The payment of all sums and indebtedness now or hereafter due and
payable under the Note.
B. Payment of all sums with interest thereon becoming due and
payable to Assignee under this Assignment, the Mortgage or the other Loan
Documents.
C. The performance and discharge of each and every obligation,
covenant, representation, warranty and agreement of Assignor under this
Assignment, the Note, the Mortgage, the Cash Collateral Agreement and any other
Loan Document.
ASSIGNOR hereby covenants and warrants to Assignee that Assignor has
not executed any prior assignment of the Leases or the Rents outstanding as of
the date hereof except for the Mortgage, nor has Assignor performed any act or
executed any other instrument which might prevent Assignee from exercising its
rights under any of the terms and conditions of this Assignment or which would
limit Assignee in such exercise; and Assignor further covenants and warrants to
Assignee that Assignor has not executed or granted any modification whatsoever
of any Lease which individually or in the aggregate is likely to result in a
material adverse effect on the value of any individual Property other than any
amendment heretofore delivered to Assignee, and that the Leases are in full
force and effect and Assignor has neither given to nor received any written
notice of default from any Tenant which remains uncured (which individually or
in the aggregate might have a material adverse effect on the value of any
individual Property) and to the Assignor's knowledge, no events or circumstances
exist which with or without the giving of notice, the passage of time or both
may constitute a default under any of the Leases which individually or in the
aggregate is likely to result in a material adverse effect on the value of any
individual Property.
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ASSIGNOR further covenants with Assignee: (i) to observe and perform
all material obligations imposed upon the lessor under the Leases and, except as
permitted under the Mortgage, not to do or permit to be done anything which
individually or in the aggregate is likely to result in a material adverse
effect on the value of the Properties; (ii) not to collect any of the Rents
(exclusive of security deposits) more than thirty (30) days in advance of the
time when the same shall become due, not to execute any other assignment of
xxxxxx's interest in the Leases or assignment of Rents arising or accruing from
the Leases or otherwise with respect to the Properties except for the Mortgage;
none of the foregoing shall be done or suffered to be done without in each
instance obtaining the prior written consent of Assignee (except to the extent
such consent is not required pursuant to the terms of the Mortgage), and any of
such acts done without the prior written consent of Assignee shall be null and
void; and (iii) to execute and deliver, at the request of Assignee, all such
further assurances and assignments with respect to the Leases and Rents assigned
herein as Assignee shall from time to time reasonably require to implement the
terms of this Assignment; provided, however, that no such further assurances
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and assignments shall increase Assignor's obligations under this Assignment.
THIS ASSIGNMENT is made on the following terms, covenants and
conditions:
1. All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Mortgage.
2. Prior to the occurrence and continuance of an Event of Default,
Assignor shall have the right to collect, in accordance with the terms hereof
but subject to the provisions of the Cash Collateral Agreement, all Rents and to
retain, use and enjoy the same.
3. At any time after the occurrence and continuance of an Event of
Default, Assignee, without in any way waiving such Event of Default, at its
option, upon notice and without regard to the adequacy of the security for the
said principal sum, interest and indebtedness secured hereby and by the
Mortgage, either in person or by agent, upon bringing any action or proceeding,
or by a
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receiver appointed by a court, may enter upon and take possession of the
premises described in the Leases and/or the Mortgage and have, hold, manage,
lease and operate the same on such terms and for such period of time as Assignee
may deem proper. Assignee, either with or without taking possession of said
premises in its own name, may demand, sue for or otherwise collect and receive
all Rents, including any Rents past due and unpaid, and to apply such Rents to
the payment of: (a) all reasonable expenses of managing the Trust Estate,
including, without limitation, the reasonable salaries, fees and wages of any
managing agent and such other employees as Assignee may reasonably deem
necessary and all reasonable expenses of operating and maintaining the Trust
Estate, including, without limitation, all taxes, charges, claims, assessments,
water rents, sewer rents and any other liens, and premiums for all insurance
which are due and payable and the cost of all alterations, renovations, repairs
or replacements, and all reasonable expenses incident to taking and retaining
possession of the Trust Estate; and (b) the principal sum, interest and
indebtedness secured hereby and by the Mortgage, together with all reasonable
costs and reasonable attorneys' fees, actually incurred in such order of
priority as Assignee may elect in its sole discretion. The exercise by Assignee
of the option granted it in this Section 3 and the collection of the Rents and
the application thereof as herein provided shall not be considered a waiver of
any Event of Default under the Note, the Mortgage or under the Leases or this
Assignment. Assignor agrees that the exercise by Assignee of one or more of
its rights and remedies hereunder shall in no way be deemed or construed to make
Assignee a mortgagee in possession unless and until such time as Assignee takes
actual possession of any Property.
4. Assignee shall not be liable for any loss sustained by Assignor
resulting from Assignee's failure to let the premises or any portion thereof or
any other act or omission of Assignee either in collecting the Rents or, if
Assignee shall have taken possession of the premises described in the Leases
and/or the Mortgage, in managing such premises after any such Event of Default
unless such loss is caused by the negligence or willful misconduct of Assignee.
Assignee shall not be obligated to perform or discharge, nor does Assignee
hereby undertake to perform or discharge, any obligation, duty or liability
under any Lease or under or by reason of this
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Assignment, and Assignor shall, and does hereby agree to, indemnify Assignee
for, and to hold Assignee harmless prior to the time that Assignee or any
Affiliate, nominee or designee of Assignee becomes a mortgagee in possession or
fee owner of any Property or otherwise takes possession of any Property
following an Event of Default from, any and all liability, loss or damage which
may or might be incurred under said Leases or under or by reason of this
Assignment and the exercise of its remedies hereunder and under the other Loan
Documents and from any and all claims and demands whatsoever which may be
asserted against Assignee by reason of any alleged obligations or undertakings
on its part to perform or discharge any of the terms, covenants or agreements
contained in said Leases. Should Assignee incur any such liability under said
Leases or under or by reason of this Assignment or in defense of any such claims
or demands, the amount thereof, including reasonable costs and expenses and
reasonable attorneys' fees actually incurred, shall be secured hereby, and
Assignor shall reimburse Assignee therefor immediately upon demand, and upon the
failure of Assignor to do so Assignee may, at its option, exercise Assignee's
remedies under the Mortgage as the same relates to the Trust Estate. It is
further understood that unless and until Assignee or its Affiliate, nominee or
designee shall become a mortgagee in possession or the fee owner of the
Properties or otherwise takes possession or control of any Property following an
Event of Default, this Assignment shall not operate to place responsibility for
the control, care, management or repair of said premises upon Assignee, nor for
the carrying out of any of the terms and conditions of any Lease; nor shall it
operate to make Assignee responsible or liable for any waste committed on the
Properties by the tenants or any other parties, or for any dangerous or
defective condition of the premises, or for any negligence in the management,
upkeep, repair or control of said premises resulting in loss or injury or death
to any tenant, licensee, employee or stranger other than any of the foregoing
arising from the gross negligence or willful misconduct of Assignee, its
employees, officers, agents or representatives.
5. Upon payment in full of the principal sum, interest and
indebtedness secured hereby and by the Mortgage, this Assignment shall become
and be void and of no effect, but the affidavit, certificate, letter or
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statement of any officer, agent or attorney of Assignee showing any part of said
principal, interest or indebtedness to remain unpaid shall be and constitute
conclusive evidence of the validity, effectiveness and continuing force of
this Assignment, and any person may, and is hereby authorized to, rely thereon.
Assignor hereby authorizes and directs the lessees named in the Leases or any
other or future lessee or occupant of the premises described therein or in the
Mortgage, upon receipt from Assignee of written notice to the effect that
Assignee is then the holder of the Mortgage and that an Event of Default exists
thereunder or under any other Loan Document to pay over to Assignee all Rents
and to continue so to do until otherwise notified by Assignee. Notwithstanding
anything to the contrary contained herein, to the extent all or a portion of any
Property is released from the lien of the Mortgage pursuant to Sections [6, 38
or 45] thereof, Leases covering such portion of the applicable Property shall be
released from this Assignment and Assignee shall execute and deliver to the
owner of the applicable Property a written release hereof in recordable form.
6. Assignee may take or release other security for the payment of
said principal sum, interest and indebtedness, may release any party primarily
or secondarily liable therefor and may apply any other security held by it to
the satisfaction of such principal sum, interest or indebtedness without
prejudice to any of its rights under this Assignment.
7. Each Assignor agrees that it will, after an Event of Default and
the acceleration of indebtedness evidenced by the Note, at the request therefor
by Assignee, deliver to Assignee certified copies of each and every Lease then
affecting all or any part of the Properties, together with assignments thereof.
Such assignments shall be on forms reasonably approved by Assignee or its
designee, and each Assignor agrees to pay all reasonable costs reasonably
incurred in connection with the execution and recording of such assignments or
any other related documents, including, without limitation, reasonable fees of
Assignee's local counsel.
8. Wherever used herein, the singular (including, without
limitation, the term "Lease") shall
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include the plural, and the use of any gender shall apply to all genders.
9. Nothing contained in this Assignment and no act done or omitted
by Assignee pursuant to the powers and rights granted it hereunder shall be
deemed to be a waiver by Assignee of any of Assignee's rights and remedies
under the Note, the Mortgage, the Cash Collateral Agreement or any other Loan
Document. This Assignment is made and accepted without prejudice to any of such
rights and remedies possessed by Assignee to collect the principal sum,
interest and indebtedness secured hereby and to enforce any other security
therefor held by it, and said rights and remedies may be exercised by Assignee
either prior to, simultaneously with, or subsequent to any action taken by it
hereunder.
10. All notices, consents, approvals and requests required or
permitted hereunder shall be given in accordance with the terms of Section [26]
of the Mortgage.
11. No consent by Assignor shall be required for any assignment or
reassignment of the rights of Assignee under this Assignment to any purchaser of
the Loan or any interest in or portion of the Loan.
12. This Assignment was negotiated in New York, and made by Assignor
and accepted by Assignee in the State of New York, and the proceeds of the Note
delivered pursuant thereto were disbursed from New York, which State the parties
agree has a substantial relationship to the parties and to the underlying
transaction embodied hereby, and in all respects, including, without limiting
the generality of the foregoing, matters of construction, validity and
performance. This Assignment and the obligations arising hereunder shall be
governed by and construed in accordance with, the laws of the State of New York
applicable to contracts made and performed in the State of New York and any
applicable laws of the United States of America except that at all times the
provisions for the creation, perfection and enforcement of the Liens and
security interest created pursuant to this Assignment with respect to any
Property and pursuant to the Mortgage shall be governed by the laws of the State
in which such Property is located. Whenever possible, each provision of this
Assignment shall be
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interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Assignment shall be prohibited by, or invalid
under, applicable law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remaining provisions of
this Assignment. Nothing contained in this Assignment or in any Loan Document
shall require either Assignor to pay or Assignee to accept any sum in any amount
which would, under applicable law, subject Assignee, any Trustee or any Holder
to penalty or adversely affect the enforceability of this Assignment. In the
event that the payment of any sum due hereunder or under any Loan Document would
have such result under applicable law, then, ipso facto, the obligation of
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Assignor to make such payments shall be reduced to the highest sum then
permitted under applicable law and appropriate adjustment shall be made by
Assignor and Assignee.
13. Recourse with respect to any claim arising under or in connection
with this Assignment by Assignee shall be limited to the same extent as is
provided in Section [33] of the Mortgage with respect to claims against Assignor
and the other parties named therein by Assignee and the terms, covenants and
conditions of Section [33] of the Mortgage are hereby incorporated by reference
as if fully set forth herein.
14. In the event that any provisions of this Assignment and the
Mortgage conflict, the provisions of the Mortgage shall control.
15. Assignor hereby waives and shall waive trial by jury, to the
extent permitted by law, in any action or proceeding brought by, or counterclaim
asserted by Assignee which action proceeding or counterclaim arises out of or is
connected with this Assignment, the Note or any other Loan Document.
16. This Assignment may be executed in any number of counterparts.
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IN WITNESS WHEREOF, each Assignor has duly executed this Assignment
on the date first hereinabove written.
ASSIGNOR:
Signed and acknowledged in the ______________________, a
presence of: ____________
By: __________________________
Name:
________________________________ Title
Print Name:
________________________________
Print Name:
ASSIGNEE:
Signed and acknowledged XXXXXX GUARANTY TRUST COMPANY
in the presence of: OF NEW YORK, a New York
banking corporation
________________________________
Print Name: By: _____________________________
Name:
________________________________ Title:
Print Name:
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STATE OF ______ )
) ss.
COUNTY OF _____ )
On this _____ day of January, 1997, before me, the undersigned
officer, personally appeared __________________________, personally known to me
and, upon oath, did depose and say that he resides at
_______________________________________________, that he is the _______
President of ________, a _______ corporation (the "Corporation"), the sole
general partner of _________________, a ______________, and that as such
officer, being duly authorized to do so pursuant to its by-laws or a resolution
of its board of directors, executed and acknowledged the foregoing instrument
on behalf of the Corporation for the purposes therein contained, by sign ing the
name of the Corporation by himself as such officer as his free and voluntary
act and deed and the free and voluntary act and deed of said Corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_______________________________
Notary Public
State of_______________________
NOTARIAL SEAL My Commission Expires:
_______________________________
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK)
On this _____ day of January, 1997, before me, the undersigned
officer, personally appeared __________________________, personally known to me
and, upon oath, did depose and say that he resides at
______________________________________________, that he is a __________________
of Xxxxxx Guaranty Trust Company of New York, a New York banking corporation
(the "Corporation"), and that as such officer, being duly authorized to do so
pursuant to its by-laws or a resolution of its board of directors, executed and
acknowledged the foregoing instrument on behalf of the Corporation for the
purposes therein contained, by signing the name of the Corporation by himself as
such officer as his free and voluntary act and deed and the free and voluntary
act and deed of said Corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_________________________________
Notary Public
State of_________________________
NOTARIAL SEAL My Commission Expires:
_________________________________
EXHIBIT A-1 - A-
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Legal Description of Properties
