EXHIBIT 10.78
Recording Requested By And
When Recorded Mail To:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxxxx & Xxxxxx Professional Corporation
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000-0000
ASSIGNMENT OF LEASES AND RENTS
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THIS ASSIGNMENT OF LEASES AND RENTS ("ASSIGNMENT") is made as of September
__, 1997, by VALLEY LIVING CENTER, LLC, a Delaware limited liability company,
having its principal place of business at 00000 Xxxxxx Xxxxx Xxxx, Xx. 0, Xxx
Xxxx Xxxxxxxxxx, Xxxxxxxxxx 00000 ("ASSIGNOR"), to G&L REALTY PARTNERSHIP, L.P.,
a Delaware limited partnership, having an office at 000 Xxxxx Xxxxxxx Xxxxx,
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 ("ASSIGNEE").
WITNESSETH:
THAT Assignor for good and valuable consideration, receipt whereof is
hereby acknowledged, hereby grants, transfer and absolutely and unconditionally
assigns to Assignee the entire lessor's interest in and to all current and
future leases, and other agreements affecting the use, enjoyment, or occupancy
of all or any part of the land, more particularly described in Exhibit A annexed
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hereto and made a part hereof, together with the buildings, structures,
fixtures, additions, enlargements, extensions, modifications, repairs,
replacements and improvements now or hereafter located thereon (hereinafter
collectively referred to as the "PROPERTY").
TOGETHER WITH all other leases and other agreements affecting the use,
enjoyment or occupancy of any part of the Property now or hereafter made
affecting the Property or any portion thereof, together with any extensions or
renewals 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 other agreements described above together with all other
present and future leases and present and future agreements and any extension or
renewal of the same are hereinafter collectively referred to as the "LEASES";
TOGETHER WITH all accounts, deposits, rents, income, issues, revenues,
receipts, insurance proceeds and profits arising from the Leases and renewals
thereof and together with
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all rents, income, issues and profits (including, but not limited to, all oil
and gas or other mineral royalties and bonuses) from the use, enjoyment and
occupancy of the Property, or the sale, lease, sublease, license, concession or
other grant of right to use or occupy any portion thereof, vending machine
proceeds, and any compensation received for the rendering of services by
Assignor (hereinafter collectively referred to as the "RENTS").
THIS ASSIGNMENT is made in consideration of (A) that certain loan made by
Assignee to Assignor evidenced by that certain note made by Assignor to
Assignee, dated the date hereof, in the principal sum of One Hundred Fifteen
Thousand Two Hundred Seventy-Two Dollars and No/Cents ($115,272.00) (the
"NOTE"), and (B) that certain loan made by Assignee to Xxxxxx Skilled Nursing
Facility, LLC, a Delaware limited liability company ("BSNF"), evidenced by that
certain note made by BSNF to Assignee, dated the date hereof, in the principal
sum of Eight Hundred Seventy Thousand Dollars and No Cents ($870,000.00) (the
"XXXXXX NOTE"), secured by (i) that certain deed of trust, security agreement,
and fixture filing with assignment of rents and agreements given by Assignor to
Assignee, dated the date hereof covering the Property and intended to be duly
recorded (the "VALLEY LIVING SECURITY INSTRUMENT"), and (ii) that certain deed
of trust, security agreement, and fixture filing with assignment of rents and
agreements given by BSNF to Assignee, dated the date hereof, covering certain
property described therein and intended to be duly recorded (the "XXXXXX
SECURITY INSTRUMENT"). The Valley Living Security Instrument and the Xxxxxx
Security Instrument are collectively referred to herein as the "SECURITY
INSTRUMENT."
The principal sum, interest and all other sums due and payable under the
Note, the Xxxxxx Note and Security Instrument are hereinafter collectively
referred to as the "DEBT". This Assignment, the Note, the Xxxxxx Note, the
Security Instrument and any other documents now or hereafter executed by
Assignor and/or others and by or in favor of Assignee which evidences, secures
or guarantees all or any portion of the payments due under the Note or otherwise
is executed and/or delivered in connection with the Note and the Security
Instrument are hereinafter referred to as the "LOAN DOCUMENTS".
ASSIGNOR WARRANTS that (A) Assignor is the sole owner of the entire
lessor's interest in the Leases; (B) the Leases are valid, enforceable and in
full force and effect and have not been altered, modified or amended in any
manner whatsoever; (C) none of the Rents have been assigned or otherwise pledged
or hypothecated; (D) none of the Rents have been collected for more than two (2)
months in advance; (E) Assignor has full power and authority to execute and
deliver this Assignment and the execution and delivery of this Assignment has
been duly authorized and does not conflict with or constitute a default under
any law, judicial order or other agreement affecting Assignor or the Property;
(F) the premises demised under the Leases have been completed and the tenants
under the Leases have accepted the same and have taken possession of the same on
a rent-paying basis; and (G) there exist on offsets or defenses to the payment
of any portion of the Rents.
ASSIGNOR COVENANTS with Assignee that Assignor (A) shall observe and
perform all the obligations imposed upon the lessor under the Leases and shall
not do or permit to be
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done anything to impair the value of the Leases as security for the Debt; (B)
shall promptly send copies to Assignee of all notices of default which Assignor
shall send or receive thereunder; (C) shall enforce all of the terms, covenants
and conditions contained in the Leases upon the part of the lessee thereunder to
be observed and performed, short of termination thereof; (D) shall not collect
any of the Rents more than one (1) month in advance; (E) shall not execute any
other assignment of the lessor's interest in the Leases or the Rents; (F) shall
deliver to Assignee, upon request, tenant estoppel certificates from each
commercial tenant at the Property in form and substance reasonably satisfactory
to Assignee, provided that Assignor shall not be required to deliver such
certificates more frequently than two (2) times in any calendar year; and (G)
shall execute and deliver at the request of Assignee all such further
assurances, confirmations and assignments in connection with the Property as
Assignee shall from time to time require.
ASSIGNOR FURTHER COVENANTS with Assignee that Assignor shall not, without
the prior consent of Assignee (i) enter into any Lease of all or any part of the
Property in excess of 5% of gross leasable area rentable square feet (a "MAJOR
LEASE"), (ii) cancel, terminate, abridge or otherwise modify the terms of any
Major Lease, or accept a surrender thereof, (iii) consent to any transfer,
assignment of or subletting under any Major Lease, (iv) cancel, terminate,
abridge or otherwise modify any guaranty of any Major Lease or the terms
thereof, (v) accept prepayments of installments of Rents for a period of more
than one (1) month in advance or (vi) further assign the whole or any part of
the Leases or the Rents. In addition to the foregoing, Assignor shall not, (i)
lease all or any part of the Property, (ii) cancel, terminate, abridge or
otherwise modify the terms of any Lease, or accept a surrender thereof, (iii)
consent to any transfer, assignment of or subletting under any Lease not in
accordance with its terms or (iv) cancel, terminate, abridge or otherwise modify
any guaranty of any Lease or the terms thereof unless such actions are exercised
for a commercially reasonable purpose in an arms-length transaction on market
rate terms.
ASSIGNOR FURTHER COVENANTS with Assignee that (A) all Leases shall provide
that the tenant agrees to attorn to Assignee; (B) none of the Leases shall
contain any option to purchase, any right of first refusal to lease or purchase,
or any right to terminate the lease term (except in the event of the destruction
of all or substantially all of the Property); (C) Leases executed after the date
hereof shall not contain any provisions which adversely affect the Property or
which might adversely affect the rights of the Assignee, and (D) each tenant
shall conduct business only in that portion of the Property covered by its
lease. Upon request, Assignor shall furnish Assignee with executed copies of all
Leases.
THIS ASSIGNMENT is made on the following terms, covenants and conditions:
1. PRESENT ASSIGNMENT. Assignor does hereby absolutely and
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unconditionally assign to Assignee Assignor's right, title and interest in all
current and future Leases and Rents, it being intended by Assignor that this
assignment constitutes a present, absolute and unconditional assignment and not
an assignment for additional security only. Such assignment to Assignee shall
not be construed to bind Assignee to the performance of any of the
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covenants, conditions, or provisions contained in any such Lease or otherwise to
impose any obligation upon Assignee. Assignor agrees to execute and deliver to
Assignee such additional instruments, in form and substance satisfactory to
Assignee, as may hereinafter be requested by Assignee to further evidence and
confirm said assignment. Nevertheless, subject to the terms of this paragraph,
Assignee grants to Assignor a revocable license to operate and manage the
Property and to collect the Rents. Assignor shall hold the Rents, or a portion
thereof, sufficient to discharge all current sums due on the Debt for use in the
payment of such sums. Upon an Event of Default (as defined in the Security
Instrument), the license granted to Assignor herein shall automatically be
revoked by Assignee and Assignee shall immediately be entitled to receive and
apply all Rents, whether or not Assignee enters upon and takes control of the
Property. Assignee and Trustee (as defined in the Security Instrument) are
hereby granted and assigned by Assignor the right, at its option, upon the
revocation of the license granted herein to enter upon the Property in person,
by agent or by court-appointed received to collect the Rents. Any Rents
collected after the revocation of the license herein granted may be applied
toward payment of the Debt in such priority and proportion as Assignee, in its
discretion, shall deem proper.
2. REMEDIES OF ASSIGNEE. Upon or at any time after an Event of Default,
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Assignee may, at its option, without waiving such Event of Default, without
notice and without regard to the adequacy of the security for the Debt, either
in person or by agent, with or without bringing any action or proceeding, or by
a receiver appointed by a court, take possession of the Property and have, hold,
manage, lease and operate the Property on such terms and for such period of time
as Assignee 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, 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
may seem proper to Assignee and may apply the Rents to the payment of the
following in such order and proportion as Assignee 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 a Assignee may deem necessary or desirable 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 Assignee may deem
necessary or desirable, 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 attorneys' fees. In
addition to the rights which Assignee may have herein, upon the occurrence of an
Event of Default, Assignee, at its option, may either require Assignor to pay
monthly in advance to Assignee, or any receiver appointed to collect the Rents,
the fair and reasonable rental value for the use and occupation of such part of
the Property as may be in possession of Assignor or require Assignor to vacate
and surrender possession of the Property to Assignee or to such receiver and, in
default thereof, Assignor may be evicted by summary proceedings or otherwise.
Additionally, Assignee shall have the right to establish a lock box for the
deposit of all Rents and other receivables of Assignor relating to the Property.
For purposes of
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paragraphs 1 and 2 hereof, Assignor grants to assignee its irrevocable power of
attorney, coupled with an interest, to take any and all of the aforementioned
actions and any or all other actions designated by Assignee for the proper
management and preservation of the Property. The exercise by Assignee of the
option granted it in this paragraph and the collection of the Rents and the
application thereof as herein provided shall not be considered a waiver of any
default by Assignor under the Note, the Security Instrument, the Leases, this
Assignment or the other Loan Documents.
3. NO LIABILITY OF ASSIGNOR. Assignee shall not be liable for any loss
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sustained by Assignor resulting from Assignee's failure to let the Property
after an Event of Default or from any other act or omission of Assignee in
managing the Property after an Event of Default. Assignee shall not be obligated
to perform or discharge any obligation, duty or liability under the Leases or
under or by reason of this Assignment and Assignor shall, and hereby agrees, to
indemnify Assignee for, and to hold Assignee harmless from, any and all
liability, loss or damage which may or might be incurred under the Leases or
under or by reason of this Assignment and from any and all claims and demands
whatsoever, including the defense of any such claims and demands whatsoever,
including the defense of any such claims or demands which may be asserted
against Assignee 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. Should Assignee incur any such liability, the amount thereof,
including costs, expenses and attorneys' fees, shall be secured hereby and by
the Security Instrument and the other Loan Documents and Assignor shall
reimburse Assignee therefor immediately upon demand and upon the failure of
Assignor so to do Assignee may, at its option, declare all sums secured hereby,
the Note, the Security Instrument and the other 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
Assignee, for the carrying out of any of the terms and conditions of the Leases;
nor shall it operate to make Assignee 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.
4. NOTICE TO LESSEES. Assignor hereby authorizes and directs the
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tenants named in the Leases or any other or future tenants or occupants of the
Property upon receipt from Assignee of written notice to the effect that the
Assignee is then the holder of the Note and that a default exists hereunder or
under this Assignment, the Note, the Security Instrument or the other Loan
Documents to pay over to Assignee all rents and to continue to do so until
otherwise notified by Assignee.
5. OTHER SECURITY. Assignee may take or release other security for the
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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.
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6. OTHER REMEDIES. Nothing contained in this Assignment and no act done
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or omitted by Assignee pursuant to the power and rights granted to Assignee
hereunder shall be deemed to be a waiver by Assignee of its rights and remedies
under the Note, the Security Instrument or the other Loan Documents and this
Assignment is made and accepted without prejudice to any of the rights and
remedies possessed by Assignee under the terms thereof. The right of Assignee to
collect the Debt and to enforce any other security therefor held by it may be
exercised by Assignee either prior to, simultaneously with, or subsequent to any
action taken by it hereunder.
7. NO MORTGAGEE IN POSSESSION. Nothing herein contained shall be
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construed as constituting Assignee a "mortgagee in possession" in the absence of
the taking of actual possession of the Property by Assignee. In the exercise of
the powers herein granted Assignee, no liability shall be asserted or enforced
against Assignee, all such liability being expressly waived and released by
Assignor.
8. CONFLICT OF TERMS. In case of any conflict between the terms of this
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Assignment and the terms of the Security Instrument, the terms of the Security
Instrument shall prevail.
9. NO ORAL CHANGE. This Assignment and any provisions hereof may not be
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modified, amended, waived, extended, changed, discharged or terminated orally,
or by any act or failure to act on the part of Assignor or Assignee, 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.
10. CERTAIN DEFINITIONS. Unless the content clearly indicates a contrary
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intent or unless otherwise specifically provided herein, words used in this
Assignment may be used interchangeable in singular or plural form and the word
"ASSIGNOR" shall mean each Assignor and any subsequent owner or owners of the
Property or any part thereof or any interest therein, the word "ASSIGNEE" shall
mean Assignee and any subsequent holder of the Note, the word "NOTE" shall mean
the Note and any other evidence of indebtedness secured by the Security
Instrument, the word "PERSON" shall include an individual, corporation,
partnership, trust, unincorporated association, government, governmental
authority, and any other entity, the word "PROPERTY" shall include any portion
of the Property and any interest therein; 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.
11. NON-WAIVER. The failure of Assignee to insist upon strict
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performance of any term shall not be deemed to be a waiver of any term of this
Assignment. Assignor shall not be relieved of Assignor's obligations hereunder
by reason of (i) failure of Assignee to comply with any request of Assignor or
any other party to take any action to enforce any of the provisions hereof or of
the Security Instrument, the Note or the other Loan Documents, (ii) the release
regardless of consideration, of the whole or any part of the Property, or (iii)
any
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agreement or stipulation by Assignee extending the time of payment or otherwise
modifying or supplementing the terms of this Assignment, the Note, the Security
Instrument or the other Loan Documents. Assignee may resort for the payment of
the Debt to any other security held by Assignee in such order and manner as
Assignee, in its discretion, may elect. Assignee may take any action to recover
the Debt, or any portion thereof, or to enforce any covenant hereof without
prejudice to the right of Assignee thereafter to enforce its rights under this
Assignment. The rights of Assignee under this Assignment shall be separate,
distinct and cumulative and none shall be given effect to the exclusion of the
others. No act of Assignee shall be construed as an election to proceed under
any one provision herein to the exclusion of any other provisions.
12. INAPPLICABLE PROVISIONS. If any term, covenant or condition of this
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Assignment is held to be invalid, illegal or unenforceable in any respect, this
Assignment shall be construed without such provision.
13. DUPLICATE ORIGINALS. This Assignment may be executed in any number
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of duplicate originals and each such duplicate original shall be deemed to be an
original.
14. GOVERNING LAW. This Assignment shall be governed and construed in
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accordance with the laws of the state in which the real property encumbered by
the Security Instrument is located.
15. TERMINATION OF ASSIGNMENT. Upon payment in full of the Debt and the
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delivery and recording of a satisfaction, release, reconveyance or discharge of
the Security Instrument duly executed by Assignee, this Assignment shall become
and be void and of no effect.
16. WAIVER OF JURY TRIAL. ASSIGNOR HEREBY AGREES NOT TO ELECT A TRIAL BY
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JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY
JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH
REGARD TO THIS ASSIGNMENT, THE SECURITY INSTRUMENT OR THE OTHER LOAN DOCUMENTS
OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH.
THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY
ASSIGNOR, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE
AS TO WHICH THE RIGHT TO TRIAL BY JURY WOULD OTHERWISE ACCRUE. ASSIGNEE IS
HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER BY ASSIGNOR.
17. WAIVERS.
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(a) Assignor warrants that (i) Assignee has made no representation to
Assignor as to the creditworthiness of BSNF, and (ii) Assignor has established
adequate means
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of obtaining from BSNF on a continuing basis financial and other information
pertaining to BSNF's financial condition. Assignor agrees to keep adequately
informed from such means as it deems appropriate of any facts, events or
circumstances which might in any way affect Assignor's risks hereunder and
Assignor further agrees that Assignee shall have no further obligation to
disclose to Assignor information or materials required in the course of
Assignee's relationship with BSNF.
(b) Assignor hereby waives any right to require Assignee to: (i)
proceed against any person, including BSNF, (ii) proceed against or exhaust any
security held from BSNF or any other person, (iii) pursue any other remedy in
Assignee's power, or (iv) make any presentments or demands for performance or
give any notices of nonperformance, protest, or dishonor in connection with any
of the indebtedness held by Assignee. Assignor waives any defense arising by
reason of: (1) any disability or other defense of BSNF or any other person, (2)
the cessation or limitation of the liability of BSNF for any cause whatsoever,
other than payment in full of all indebtedness owed to Assignee, (3) the
application by BSNF of the proceeds of any obligation secured hereby for
purposes other than the purposes represented by BSNF to Assignee or intended or
understood by Assignee or BSNF, (4) any act or omission by Assignee which
directly or indirectly results in or aids the discharge of BSNF or any
obligation secured hereby by operation of law or otherwise, or (5) any
modification of the obligations secured hereby in any form whatsoever,
including, without limitation, the renewal, extension, acceleration or other
change in the terms of such obligations or any part thereof, including increase
or decrease of the rate of interest thereon. Assignor waives all rights and
defenses arising out of an election of remedies by the creditor, even though
that election of remedies,such as a nonjudicial foreclosure with respect to
security for a guaranteed obligation, has destroyed the Assignor's rights of
subrogation and reimbursement against the principal by the operation of law or
otherwise. Assignor shall have no right of subrogation and Assignor waives any
defense that may have been based upon any election of remedies by Assignee which
destroys Assignor's rights to proceed against BSNF for reimbursement, including,
without limitation, any loss of rights Assignor may suffer by reason of any
rights, powers, or remedies of BSNF in connection with any anti-deficiency laws
or any other laws limiting, qualifying or discharging Assignor's obligations.
Assignor further waives any right to enforce any remedy which Assignee now has
or may hereafter have against BSNF or any other person and waives any benefit of
or any right to participate in any security whatsoever now or hereafter held by
Assignee. If any amount shall be paid to Assignor at any time when any
indebtedness owing to Assignee shall not have been paid in full, such amount
shall be held in trust for the benefit of Assignee and shall forthwith be paid
to Assignee to be credited and applied upon such indebtedness, whether matured
or unmatured. Assignor warrants and agrees that each of the waivers set forth
above is made with Assignor's full knowledge of its significance and
consequences and that under the circumstances the waivers are reasonable. If any
said waivers are determined to be contrary to any application of law or public
policy, such waivers shall be effective only to the extent permitted by law.
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THIS ASSIGNMENT shall inure to the benefit of Assignee and any subsequent
holder of the Note and shall be binding upon Assignor, and Assignor's heirs,
executors, administrators, successors and assigns and any subsequent owner of
the Property.
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Assignor has executed this instrument the day and year first above written.
ASSIGNOR:
VALLEY LIVING CENTER, LLC,
a Delaware limited liability company
By:________________________________________
Name:___________________________________
Title:__________________________________
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XXXXXXXXXX XXX-XXXXXXX XXXXXXXXXXXXXX
Xxxxx of California )
) ss.
County of_____________ )
On _____________ (date) before me, ____________ (name and title "Notary
Public"), personally appeared ____________ (name of signer(s)), personally known
to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
_____________________________
(signature of Notary) (seal of Notary)
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EXHIBIT A
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LEGAL DESCRIPTION
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Beginning at a point on the North right-of-way line of 00xx Xxxxxx that is
East 1072.50 feet along the City Monumented Section line and North 40.00
feet from the Southwest Corner of Section 22, Township 2 North, Range 00
Xxxx xx xxx Xxxxx Xxxxxxxx, Xxxxxxxxxx Xxxxxx, Xxxxx; and running thence
East 140.64 feet along said North right-of-way line; thence North 495.00
feet; thence West 140.64 feet; thence South 495.00 feet to the point of
beginning.
A-1
