THIS DOCUMENT PREPARED UNDER THE SUPERVISION OF A MASSACHUSETTS LICENSED
ATTORNEY AND AFTER RECORDING
SHOULD BE RETURNED TO:
_______________________
Xxxxxxxx, Kohn, Bell, Black, Xxxxxxxxxx & Xxxxxx, Ltd.
00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
SPACE ABOVE THIS LINE FOR RECORDER'S USE
___________________________________________________________________________
LOAN NO. 07-0004017
ASSIGNMENT OF LEASES AND RENTS
This ASSIGNMENT OF LEASES AND RENTS ("ASSIGNMENT") is made as of this 21st
day of August, 2002 by EMERITUS PROPERTIES XIV, LLC, a Washington limited, whose
address is 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000
("ASSIGNOR"), to XXXXXX HEALTHCARE FINANCE, INC., a Delaware corporation
("ASSIGNEE") whose address is 0 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx,
Xxxxxxxx 00000.
1. DEFINITIONS.
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"SCHEDULE": The Schedule of Leases separately delivered to Assignee
listing all present leases, subleases, tenancies and occupants of the Property.
"PROPERTY": The real estate described in Exhibit A attached hereto, together
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with all improvements thereon.
"LEASES": All of the agreements affecting the use, enjoyment or occupancy of
the Property, including patient and residential care agreements, leases and
other occupancy agreements, and all guaranties, amendments, extensions and
renewals thereof for all or any part of the Property.
"LOAN AGREEMENT": The Loan Agreement of even date herewith between Assignor and
Assignee.
"LOAN DOCUMENTS": The "Loan Documents" as defined in the Loan Agreement.
"RENTS": All of the rents, income, receipts, revenues, issues, and profits,
prepayments of the same including, without limitation, lease termination,
cancellation or similar fees now due or which may become due or to which
Assignor may now or shall hereafter become entitled or which it may demand or
claim and arising directly or indirectly from the Leases or the Property.
"TENANT(S)": Any present or future tenant, subtenant or occupant of the
Property.
"MORTGAGE": The Real Property Mortgage with Power of Sale and Security
Agreement of even date herewith which encumbers the Property.
All other capitalized terms used herein, unless otherwise specified, shall have
the same meaning ascribed to them in the Loan Agreement.
2. ASSIGNMENT. Assignor, for good and valuable consideration, the receipt
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of which is hereby acknowledged, does hereby assign, convey, and deliver unto
Assignee:
(a) All of Assignor's right, title and interest in all of the Leases;
(b) The immediate and continuing right to collect and receive all of the
Rents;
(c) Any and all rights and claims of any kind that Assignor may have now or
in the future against any Tenant.
To have and to hold the same unto Assignee, its successors and assigns,
until termination of this Assignment as hereinafter provided.
3. ABSOLUTE ASSIGNMENT. All of the Rents and all proceeds payable under any
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policy of insurance covering loss of rents resulting from untenantability
caused by damage to any part of the Property, together with any and all rights
that Assignor may have against any Tenant under such Leases or any subtenants or
occupants of any part of the Property and any award made hereafter to Assignor
in any court proceeding involving any of the Tenants or in any bankruptcy,
insolvency, or reorganization proceedings in any state or federal court, and all
payments by Tenants in lieu of Rent, are hereby absolutely and unconditionally
assigned to Assignee, to be applied by Assignee in payment of the Indebtedness.
Assignor hereby further assigns to Assignee the Leases. It is understood and
agreed by the parties that this assignment is intended to be and is an absolute
assignment from Assignor to Assignee, and not merely the passing of a security
interest; provided, however, that prior to the occurrence and continuance of an
Event of Default, Assignor shall have a license, without joinder of Assignee, to
enforce the Leases subject to the terms of the Mortgage, and to collect the
Rents and insurance proceeds and payments in lieu of Rents described herein as
they come due (but not more than one (1) month in advance) and to retain, use
and enjoy the same. Assignor shall, upon request of Assignee, execute
confirmatory assignments of any specific Leases affecting any part of the
Property prior to or at any time there is not an Event of Default.
Upon the occurrence and during the continuance of any Event of Default,
Assignee may, at any time without notice, either in person, by agent or by a
receiver appointed by a court, and without regard to the adequacy of any
security for the Indebtedness and the Obligations (as defined in the Mortgage),
enter upon and take possession of the Property, or any part thereof, in its own
name sue for or otherwise collect the Rents, including those past due and
unpaid, and apply the same, less costs and expenses of operation and collection,
including reasonable attorney's fees, upon the Indebtedness and in such order as
Assignee may so determine. The collection of Rents, or the entering upon and
taking possession of the Property, or the application thereof as aforesaid,
shall not cure or waive any Event of Default or notice of an Event of Default
hereunder or invalidate any act done in response to such Event of Default or
pursuant to such notice of an Event of Default.
In the event Assignor, as lessor under the Leases, shall fail to perform and
fulfill any term, covenant, condition, or provision in the Leases, or any of
them, on its part to be performed or fulfilled, at the time and in the manner in
the Leases provided, or if the Assignor shall suffer or permit to occur any
breach or default under the provisions of this Assignment of the Leases, or any
of them, and such default shall continue for a period of thirty (30) days
following the giving of written notice of such default to Assignor, then and in
any such event, such breach or default shall constitute an Event of Default.
Assignor further agrees that Assignee may enforce this Assignment without first
resorting to or exhausting any security or collateral for the Loan; however,
nothing herein contained shall prevent Assignee from exercising any other right
under any of the Loan Documents.
4. POWER OF ATTORNEY. Assignor hereby irrevocably appoints Assignee its
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true and lawful attorney-in-fact (coupled with an interest), with full power of
substitution and with full power for Assignee in its own name and capacity or in
the name and capacity of Assignor to demand and collect any and all Rents
and to file any claim or take any other action or proceeding and make any
settlement regarding the Leases in the event Assignor fails to do so upon
request or at any time after and during the continuance of Event of Default.
From and after notice from Assignee to do so, all Tenants are hereby expressly
authorized and directed to pay to Assignee, or to such nominee as Assignee may
designate in a writing delivered to such Tenants, all amounts due Assignor
pursuant to the Leases. All Tenants are expressly relieved of all duty,
liability or obligation to Assignor in respect of all payments so made to
Assignee or such nominee.
5. CONSIDERATION. This Assignment is made for and in consideration of the
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Loan made by Assignee to Assignor as set forth in the Loan Documents and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged.
6. INDEMNITY. Assignor hereby agrees to indemnify Assignee and to hold
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Assignee harmless from any liability, loss or damage including, without
limitation, reasonable attorneys' fees, costs and expenses which may or might be
incurred by Assignee under the Leases or by reason of this Assignment, and from
any and all claims and demands which may be asserted against Assignee by reason
of any term, covenant or agreement contained in any of the Leases, except for
any such liability, loss or damage resulting solely from Assignee's gross
negligence or willful misconduct.
Any provision in this Assignment by which one party agrees to indemnify the
other (the "INDEMNITEE"), or the agents and employees of the Indemnitee, against
liability, claims, damages, losses or expenses, including attorney fees, arising
out of bodily injury to persons or damage to property caused by, or resulting
from, in whole or in part, the negligence, act or omission of the Indemnitee, or
the agents or employees of the Indemnitee, or any legal entity for whose
negligence, acts or omission any of them may be liable, shall not extend to
liability, claims, damages, losses or expenses, including attorney fees, arising
out of:
(a) The preparation or approval of maps, drawings, opinions, reports,
surveys, change orders, designs or specifications by the Indemnitee, or the
agents or employees of the Indemnitee; or
(b) The giving of or the failure to give directions or instructions by the
Indemnitee, or the agents or employees of the Indemnitee, which such giving of
or failure to give directions or instructions is the primary cause of bodily
injury to persons or damage to property.
7. PERFORMANCE OF LEASE COVENANTS. In the event Assignor fails to perform
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any Lease covenant, Assignee may, at its option, upon prior notice to Assignor
(except in the event of an emergency) perform any Lease covenant for and on
behalf of Assignor, and all monies expended in so doing shall be chargeable to
Assignor and added to the outstanding principal balance and shall be immediately
due and payable.
8. REPRESENTATIONS AND WARRANTIES. Assignor represents and warrants and
--------------------------------
shall be deemed to reaffirm the same upon each disbursement of the proceeds of
the Loan by Assignee to Assignor or any other Borrower (as defined in the Loan
Agreement):
(a) The Leases set forth on the Schedule are in full force and effect and
have not been modified;
(b) There are no defaults, defenses or setoffs of either landlord or, to the
best of Assignor's knowledge, tenant under the Leases nor, to the best of
Assignor's knowledge, is there any fact which, with the giving of notice or
lapse of time or both, would constitute a default under the Leases;
(c) The sole ownership of the entire landlord's interest in the Leases is
vested in Assignor and the Leases are not, as of the date hereof, otherwise
assigned or pledged;
(d) Except as otherwise previously disclosed in writing to lender, (i) all
Rents due to date have been collected, (ii) no Rent has been collected more than
one (1) month in advance, and (iii) no Tenant has been granted any Rent
concession or inducement whatsoever other than as set forth in Exhibit B; and
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(e) There are no leases of the Property not listed on the Schedule.
9. COVENANTS AND AGREEMENTS. Assignor hereby covenants and agrees as
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follows:
(a) Assignor shall not permit any Rent under any Lease of the Property to be
collected more than one (1) month in advance of the due date thereof.
(b) Assignor shall act in a commercially reasonable manner to enforce all
available remedies against any delinquent Tenant to protect the interest of the
landlord under the Leases and to preserve the value of the Property.
(c) Assignor shall comply with and perform in a complete and timely manner
all of its obligations as landlord under all Leases. Assignor shall give notice
to Assignee of any default by Assignor under any Lease or by any Tenant under
any non-residential Lease in such time to afford Assignee an opportunity to cure
any such default prior to the Tenant having any right to terminate the Lease.
Assignor shall also provide Assignee with notice of the commencement of an
action of ejectment or any summary proceedings for dispossession of the Tenant
under any of the non-residential Leases.
(d) Within five (5) business days of each request therefor, Assignor shall
furnish promptly to Assignee a certified rent roll and copies of all
non-residential Leases now existing or hereafter created. From and after and
during the continuance of an Event of Default, Assignee shall have the right to
notify any Tenant at any time and from time to time of any provision of the Loan
Documents.
(e) At Assignee's request, Assignor shall cause the Tenant under any
non-residential Lease, other than a Qualified Non-Residential Lease, to execute
a subordination and attornment agreement in form and substance reasonably
satisfactory to Assignee. Assignor shall not enter into, amend or terminate any
Leases except in compliance with the Loan Agreement and the Mortgage.
(f) Assignor shall not without the prior written consent of Assignee: (i)
perform any act or execute any other instrument which might interfere with the
exercise of Assignee's rights hereunder; (ii) execute any assignment, pledge or
hypothecation of Rents or any of the Leases; (iii) suffer or permit any of the
Leases to become subordinate to any lien other than the lien of the Mortgage.
(g) This Assignment transfers to Assignee all of Assignor's right, title,
and interest in any security deposits, provided that Assignor shall have the
right to retain the security deposit so long as there is no Event of Default
outstanding under this Assignment or the Loan Documents. Assignee shall have no
obligation to any Tenant with respect to its security deposit unless and until
Assignee comes into possession and control of the deposit.
(h) Assignor shall use reasonable efforts to deliver to Assignee, promptly
upon request, a duly executed estoppel certificate from any non-residential
Tenant in form and content satisfactory to Assignee.
(i) Assignee may assign its right, title and interest in the Leases and any
subsequent assignee shall have all of the rights and powers provided to Assignee
by this Assignment.
10. NO OBLIGATION. This Assignment shall not be deemed to impose upon
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Assignee any of the obligations or duties of the landlord or Assignor provided
in any Lease. Assignor hereby acknowledges and agrees: (i) Assignor is and will
remain liable under the Leases to the same extent as though this Assignment
had not been made; and (ii) Assignee has not by this Assignment assumed any of
the obligations of Assignor under the Leases, except as to such obligations
which arise after such time as Assignee shall have assumed full ownership or
control of the Property. This Assignment shall not make Assignee responsible
for the control, care, management, or repair of the Property or any personal
property or for the carrying out of any of the terms of the Leases unless and
until Assignee takes possession of the Property. Assignee shall not be liable
in any way for any injury or damage to person or property sustained by any
person or persons, firm, or corporation in or about the Property absent gross
negligence or willful misconduct by Assignee.
11. TENANT BANKRUPTCY. In the event any Tenant should be the subject of any
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proceeding under the Federal Bankruptcy Code or any other federal, state, or
local statute which provides for the possible termination or rejection of any
Lease, Assignor covenants and agrees no settlement for damages shall be made
without the prior written consent of Assignee, which consent shall not be
unreasonably withheld or delayed, and any check in payment of damages for
rejection of any Lease will be made payable both to Assignor and Assignee.
Assignor hereby assigns any such payment to Assignee and further covenants and
agrees that it will duly endorse to the order of Assignee any such check.
12. EVENTS OF DEFAULT. The occurrence of any one or more of the following
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events shall constitute an "EVENT OF DEFAULT" under this Assignment:
(a) failure of Assignor to pay, within ten (10) days of the due date, any of
the Indebtedness, including any payment due under the Notes; or
(b) failure of Assignor to strictly comply with Sections 9(a) and (f) of
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this Assignment; or
(c) breach of any covenant (other than those covenants set forth in
subsection (b) above), representation or warranty set forth in this Assignment
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which is not cured within thirty (30) days after notice; provided, however, if
such breach cannot by its nature be cured within thirty (30) days, and Assignor
diligently pursues the curing thereof (and then in all events cures such failure
within sixty (60) days after the original notice thereof), Assignor shall not be
in default hereunder; or
(d) the occurrence of an Event of Default under any other Loan Documents.
13. REMEDIES. Upon the occurrence of an Event of Default, then, without
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notice to, or the consent of, Assignor, Assignee shall be entitled to exercise
all of the rights and remedies contained in this Assignment or in any other
Loan Document or otherwise available at law or in equity including, without
limitation, the right to do any one or more of the following:
(a) To enter upon, take possession of and manage the Property for the
purpose of collecting the Rents;
(b) Dispossess by the usual summary proceedings any Tenant defaulting in the
payment thereof to Assignor;
(c) Lease the Property or any part thereof;
(d) Repair, restore, and improve the Property;
(e) Apply the Rent after payment of Property expenses as determined by
Assignee to the indebtedness and the obligations secured by any of the Loan
Documents in such order as Assignee may determine; and
(f) Apply to any court of competent jurisdiction for specific performance of
this Assignment, an injunction against the violation hereof and/or the
appointment of a receiver.
14. NO WAIVER. Neither the exercise of any rights under this Assignment by
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Assignee nor the application of any Rents to payment of Assignor's indebtedness
under the Loan Documents shall cure or waive any Event of Default thereunder.
Failure of Assignee to avail itself of any of the terms of this Assignment for
any period of time or for any reason shall not constitute a waiver of the
Assignment.
15. OTHER DOCUMENTS. This Assignment is intended to be supplementary to,
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not in substitution for, or in derogation of, any assignment of rents contained
in the Mortgage or in any of the Loan Documents.
16. NOTICES. Any notice or other communication required or permitted to be
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given shall be in writing addressed to the respective party as set forth in the
Loan Agreement.
17. GOVERNING LAW; SEVERABILITY. This Assignment shall be governed by and
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construed in accordance with the internal laws of the State of Illinois except
that the provisions of the laws of the jurisdiction in which the Property is
located shall be applicable to the creation, perfection and enforcement of the
lien created by this Assignment. The invalidity, illegality or unenforceability
of any provision of this Assignment shall not affect or impair the validity,
legality or enforceability of the remainder of this Assignment, and to this end
the provisions of this Assignment are declared to be severable.
IN WITNESS WHEREOF, Xxxxxxxx has executed this Assignment or has caused the same
to be executed by its duly authorized representatives as of the date first set
forth above.
EMERITUS PROPERTIES XIV, LLC, a Washington limited liability company
By: EMERITUS CORPORATION, its sole member
By /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name Xxxxxxx X. Xxxxxxxxxx
Its CFO
ACKNOWLEDGMENT
STATE OF WASHINGTON )
) SS
COUNTY OF KING )
On this _____ day of August, 2002, before me appeared
____________________________, to me personally known, who, being by me duly
sworn, did say that _he is the ____________________ of EMERITUS CORPORATION, a
Washington corporation, the sole member of EMERITUS PROPERTIES XIV, LLC, a
Washington limited liability company, and that said instrument was signed and
sealed on behalf of said limited liability company by authority of its members,
and _he acknowledged said instrument to be the free act and deed of said limited
liability company.
Print Name:
Commission No.
(if any)
My Commission Expires:______________
A-2
A-1
EXHIBIT A
PROPERTY DESCRIPTION
Record Owner: Emeritus Properties XIV, LLC, a Washington limited liability
company
Legal Description:
EXHIBIT B
LEASE CONCESSIONS/DEVIATIONS
None
