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EXHIBIT 10.25
RECORDED AT THE REQUEST OF AND AFTER RECORDING RETURN TO:
XXXXXXX X. XXXXX
XXXXXXXX XXXXXX XXXXXXX & XXXXXX LLP
0000 XXXXX XXXXXX XXXXX
0000 XXXXXXX/XXXXXXX XXXXX
XXXXXXXXXX, XXXXXXX 00000
(000) 000-0000
ASSIGNMENT OF RENTS AND LEASES
THIS ASSIGNMENT made as of the _______________________, by ________
__________________________________________________________ (the "Borrower"), to
___________________________________________________________________ ("Lender").
R E C I T A L S:
This Assignment is made as additional security for the payment of
indebtedness due or to become due from time to time by Borrower to Lender in the
principal amount of up to ____________________________________ Dollars
($____________) (the "Loan"), with interest thereon as evidenced by a Note of
even date herewith in said amount (the "Note") executed and delivered by
Xxxxxxxx to Lender, and as additional security for the full and faithful
performance by Borrower of all the terms and conditions of the Note, all
obligations pursuant to a Loan Agreement between Borrower and Lender of even
date herewith (the "Loan Agreement") and a certain Mortgage and Security
Agreement of even date herewith (the "Mortgage") executed and delivered by
Borrower to or for the benefit of Lender with respect to the property described
in Exhibit A in order to secure the payment of the Note, and all other
obligations pursuant to documents now or hereafter executed by Borrower in
connection with the Loan.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals,
and as an inducement to the Lender to make the Loan to Borrower, Borrower does
hereby sell, assign, transfer and set over unto Lender, its successors and
assigns, all of Borrower's interest in and to all leases presently existing or
hereafter made, whether written or verbal, or any letting of, or agreement for
the use or occupancy of, any part of the property described in Exhibit A
attached hereto, and the improvements now or hereafter located thereon,
including, without limitation, all the rents, issues, and profits now due and
which may hereafter become due under or by virtue of said leases and agreements.
Xxxxxxxx agrees that this Assignment shall cover all future leases,
whether written or
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verbal, or any letting of, or any agreement for the use or occupancy of, any
part of said property.
Xxxxxxxx further agrees that it will not assign the rent or any part of
the rent of said property, nor collect rents under any leases or other
agreements relating to use of any part of the property, for a period further in
advance than one (1) month without the written consent of the Lender, nor do any
other act whereby the lien of the Mortgage or this Assignment may, in the
reasonable opinion of the Lender, be impaired in value or quality.
Xxxxxxxx agrees that it has not and will not enter into any lease
except as expressly permitted by the Loan Agreement.
Xxxxxxxx further agrees that this Assignment is to remain in full force
and effect until such time as the Note and all other obligations secured hereby
are paid in full of otherwise satisfied.
Although it is the intention of the parties that this instrument to be
a present assignment, it is expressly understood and agreed by Xxxxxxxx and
Xxxxxx that said Borrower reserves, and is entitled to collect, said rents,
income and profit upon, but not more than one (1) month in advance of, their
accrual under the aforesaid leases, and to retain, use and enjoy the same unless
and until the occurrence of an Event of Default pursuant to (and as defined in)
the Note or the Mortgage, or until the violation of any term, condition or
agreement of this Assignment which is not cured within thirty (30) days of
written notice of such violation from Lender to Borrower which shall be given
and deemed received when sent in the manner set forth in the Mortgage, each of
which shall constitute an "Event of Default" hereunder. Upon an Event of
Default, Xxxxxxxx's privilege to collect the rents shall automatically
terminate.
Borrower does hereby authorize and empower Lender to collect directly
from the lessees, upon demand and any Event of Default hereunder, all of the
rents, issues and profits now due or which may hereafter become due under or by
virtue of any lease, whether written or verbal, or any letting of, or agreement
for the use or occupancy of, any part of said property and to take such action,
legal or equitable, as may be deemed necessary to enforce payment of such rents,
issues and profits. Borrower hereby authorizes and directs the lessees under
leases to pay to Lender all rents and other sums as the same become due, upon
notice from Lender that an Event of Default has occurred hereunder. Any lessee
making such payment to Lender shall be under no obligation to inquire into or
determine the actual existence of any Event of Default claimed by Xxxxxx.
Any amount received or collected by Lender by virtue of this Assignment
shall be
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applied for the following purposes, but not necessarily in the order named,
priority and application of such funds being within the sole discretion of
Lender:
(1) to the payment of all necessary expenses for the
operation, protection and preservation of the property, including the
usual and customary fees for management services;
(2) to the payment of taxes and assessments levied and
assessed against the property as said taxes and assessments become due
and payable;
(3) to the payment of premiums due and payable on any
insurance policy related to the property;
(4) to the payment of installments of principal and interest
on the Note as and when they become due and payable pursuant to the
terms of the Note whether by acceleration or otherwise;
(5) to the payment of any other sums secured hereby, including
amounts due under the Mortgage and Loan Agreement, and
(6) the balance remaining after payment of the above shall be
paid to the then owner of record of said property.
Xxxxxxxx hereby agrees to indemnify Lender for, and to save it harmless from,
any and all liability, loss or damage which Xxxxxx might incur under said leases
or by virtue of this Assignment, as a result of any act, or failure to act,
prior to Lender becoming a mortgagee in possession and prior to foreclosure, and
from any and all claims and demands whatsoever which may be asserted against
Lender thereunder or hereunder, and, without limiting the generality of the
foregoing, covenants that this Assignment shall not operate (prior to Lender
becoming a mortgagee in possession and prior to foreclosure) to place
responsibility for the control, care, management or repair of said property upon
Lender, nor the carrying out of any of the terms and conditions of said leases;
nor shall it operate (prior to Lender becoming mortgagee in possession and prior
to foreclosure) to make Lender responsible or liable for any waste committed on
the property by the tenants or any other party, or for any negligence in the
management, upkeep repair or control of said property resulting in loss or
injury or death to any tenant, licensee, invitee, employee, stranger or other
person.
This Assignment shall be governed by the laws of the State of
Pennsylvania. If, for any reason or to any extent any word, term, provision, or
clause of this Assignment or any of the other Loan Documents, or its application
to any person or situation, shall be found by
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a court or other adjudicating authority to be invalid or unenforceable, the
remaining words, terms, provisions, or clauses shall be enforced, and the
affected work, term, clause or provision shall be applied, to the fullest extent
permitted by law.
The terms "Note," "Mortgage" and "Loan Agreement" shall refer to such
instruments as they may hereafter be amended by Borrower, and Lender. This
Assignment shall be binding upon the Borrower, its successors and assigns and
subsequent owners of the property, or any part thereof, and shall inure to the
benefit of Lender, its successors and assigns and any holder of the Note.
XXXXXXXX WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THE NOTE, THIS ASSIGNMENT
AND ANY OTHER LOAN DOCUMENTS. BORROWER CERTIFIES THAT NO REPRESENTATIVE OR AGENT
OF LENDER OR XXXXXX'S COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
LENDER WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER
OF THE JURY TRIAL PROVISION. BORROWER ACKNOWLEDGES THAT XXXXXX HAS BEEN INDUCED
TO MAKE THE LOAN SECURED HEREBY IN PART BY THE PROVISIONS OF THIS WAIVER.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Borrower has caused these presents to be
executed by its duly authorized officer as of the day and year first above
written.
BY: /s/ XXXXX X. XXXXX
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XXXXX X. XXXXX, VICE PRESIDENT
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SCHEDULE TO EXHIBIT 10.25 FILED PURSUANT TO INSTRUCTION 2 OF ITEM 601(a) OF
REGULATION S-K
ASSIGNMENT OF RENTS AND LEASES
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PROJECT PARTIES LOAN AMOUNT DATE
------- ------- ----------- ----
Raleigh, NC Balanced Care at $8,600,000.00 12/1/97
North Ridge, Inc.
(Borrower) and Capstone
Capital Corporation
(Lender)
Millville, PA Balanced Care at Eyers Grove, $1,031,675.00 1/2/98
Inc. (Borrower) and Capstone
Capital of Pennsylvania, Inc.
(Lender)
Bloomsburg, PA Balanced Care at Bloomsburg II, $4,568,325.00 1/2/98
Inc. (Borrower) and Capstone
Capital of Pennsylvania, Inc.
(Lender)
