Exhibit 10.19
Following recording, return to: Xxxx X. Xxxxxx, Xxxxxx Xxxxxxx Law Firm, 000
Xxxxx 00/xx/ Xxxxxx, Xxxxx 000, Xxxxx Xxxxxxxx, 00000, tel. (000) 000-0000
ASSIGNMENT OF RENTS AND LEASES
THIS ASSIGNMENT is made as of May 12, 2003, by Professional Veterinary
Products, Ltd., a Nebraska corporation, whose address is 00000 Xxxxx 000/xx/
Xxxxxx, Xxxxx, Xxxxxxxx 00000 (hereinafter called "Assignor"), in favor of U.S.
Bank National Association, a national banking association, whose address is 0000
Xxxxxx Xxxxxx, Xxxxx, Xxxxxxxx, 00000 (hereinafter called "Bank").
W I T N E S S E T H:
Assignor, for good and valuable consideration, the receipt of which is
hereby acknowledged, does hereby absolutely and unconditionally grant, bargain,
sell, transfer, assign, convey, set over and deliver unto Bank all right, title
and interest of Assignor in, to and under all written and oral leases and rental
agreements of the real estate described in Exhibit A attached hereto and
incorporated herein (the "Property"), whether now in existence or hereafter
entered into, and all guaranties, amendments, extensions, renewals and subleases
of said leases and any of them, all of which are hereinafter called the
"Leases," all rents, income and profits which may now or hereafter be or become
due or owing under the Leases, and any of them, or on account of the use of the
Property, any award hereafter made in any bankruptcy, insolvency or
reorganization proceeding in any state or federal court involving any of the
tenants of the Leases, and any and all payments made by such tenants in lieu of
rent.
This Assignment is made for the purpose of securing:
(a) The payment of the indebtedness (including any extensions or renewals
thereof) evidenced by a certain Note (the "Note") of Assignor of even date
herewith in the principal sum of $4,000,000.00 and secured by a certain Deed of
Trust, Assignment of Leases and Rents and Fixture Filing (the "Deed of Trust")
of even date herewith encumbering the Property;
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(b) The payment of all other sums with interest thereon becoming due and
payable to Bank under the provisions of the Deed of Trust and any other
instrument constituting security for the Note;
(c) The performance and discharge of each and every term, covenant and
condition contained in the Note, Deed of Trust and any other instrument
constituting security for the Note; and
(d) The payment of Bank's Loan to Borrower Nos. 109, 125 and 166.
Assignor represents, warrants, covenants and agrees with Bank as follows:
(a) The sole ownership of the entire lessor's interest in the Leases is or
shall be vested in Assignor, and Assignor has not, and shall not, perform any
acts or execute any other instruments which might prevent Bank from fully
exercising its rights under any of the terms, covenants and conditions of this
Assignment.
(b) The Leases are and shall be valid and enforceable in accordance with
their terms and have not been altered, modified, amended, terminated, canceled,
renewed or surrendered nor have any of the terms and conditions thereof been
waived in any manner whatsoever except as disclosed in writing to Bank.
(c) Assignor shall not alter the term of any Lease or the amount of rent
payable under any Lease without Bank's prior written consent. In addition,
Assignor shall not materially alter any of the other terms of the Leases without
Bank's prior written consent.
(d) To the best of Assignor's knowledge, there are no defaults now
existing under any of the Leases, and there exists no state of facts which, with
the giving of notice or lapse of time or both, would constitute a default under
any of the Leases.
(e) Assignor shall give prompt notice to Bank of any notice received by
Assignor claiming that a default has occurred under any of the Leases on the
part of Assignor, together with a complete copy of any such notice.
(f) Each of the Leases shall remain in full force and effect irrespective
of any merger of the interest of lessor and any lessee under any of the Leases.
(g) Assignor will not permit any Lease to become subordinate to any lien
other than the lien of the Deed of Trust.
(h) Assignor shall not permit or consent to the assignment by any tenant
of its rights under its Lease without the prior written consent of Bank. Without
limitation of the foregoing, Assignor shall not permit or consent to the filing
of any encumbrance against the tenant's interest under any Lease, including,
without limitation, any leasehold Deed of Trust.
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(i) All existing Leases are described on Exhibit B attached hereto and
incorporated herein. Assignor has delivered to Assignee true, correct and
complete copies of all existing Leases and all amendments and modifications
thereto.
The parties further agree as follows:
This Assignment is an absolute, present assignment from Assignor to Bank,
effective immediately, and is not merely an assignment for security purposes.
Notwithstanding the foregoing, until written notice is sent to Assignor that an
Event of Default (as defined in the Note and in the Deed of Trust) has occurred
(which notice is hereafter called a "Notice"), Assignor is granted a license to
receive, collect and enjoy the rents, income and profits accruing from the
Property.
Bank may, at its option, after delivery of a Notice to Assignor, receive
and collect all such rents, income and profits, from the Property. Bank shall
thereafter continue to receive and collect all such rents, income and profits as
they become due as long as such Event of Default shall exist and during the
pendency of any foreclosure proceedings, and if there is a deficiency, during
any redemption period. All sums received by Assignor after service of such
Notice shall be deemed received in trust and shall be turned over to Bank within
one business day after Assignor's receipt thereof.
Assignor hereby irrevocably appoints Bank its true and lawful attorney with
power of substitution and with full power for Bank in its own name and capacity
or in the name and capacity of Assignor, from and after delivery of a Notice, to
demand, collect, receive and give complete acquittances for any and all rents,
income and profits accruing from the Property, either in its own name or in the
name of Assignor or otherwise, which Bank may deem necessary or desirable in
order to collect and enforce the payment of the rents, income and profits. Such
appointment is coupled with an interest and is irrevocable. Assignor also hereby
irrevocably appoints Bank as its true and lawful attorney, from and after
delivery of a Notice, to appear in any state or federal bankruptcy, insolvency
or reorganization proceeding in any state or federal court involving any of the
tenants of the Leases. Tenants of the Property are hereby expressly authorized
and directed to pay any and all amounts due Assignor pursuant to the Leases to
Bank or such nominee as Bank may designate in writing delivered to and received
by such tenants, each of whom are expressly relieved of any and all duty,
liability or obligation to Assignor in respect of all payments so made.
From and after delivery of a Notice, Bank is hereby vested with full power
to use all measures, legal and equitable, deemed by it to be necessary or proper
to enforce this Assignment and to collect the rents, income and profits assigned
hereunder, including the right of Bank or its designee to enter upon the
Property, or any part thereof, and take possession of all or any part of the
Property. Assignor hereby grants full power and authority to Bank to exercise
all rights, privileges and powers herein granted at any and all times after
delivery of a Notice, with full power to use and apply all of the rents and
other income herein assigned to the payment of the costs of managing and
operating the Property and to any indebtedness or liabilities of Assignor to
Bank, including, but not limited to, the payment of taxes, special assessments,
insurance
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premiums, damage claims, the costs of maintaining, repairing, rebuilding and
restoring the improvements on the Property or of making the same rentable,
reasonable attorneys' fees incurred in connection with the enforcement of this
Assignment, and to the payment of principal and interest due from Assignor to
Bank on the Note and the Deed of Trust, all in such order as Bank may determine.
Bank shall be under no obligation to exercise or prosecute any of the rights or
claims assigned to it hereunder or to perform or carry out any of the
obligations of the lessor under any of the Leases and does not assume any of the
liabilities in connection with or arising or growing out of the covenants and
agreements of Assignor in the Leases. It is further understood that this
Assignment shall not operate to place responsibility for the control, care,
management or repair of the Property, or parts thereof, upon Bank, nor shall it
operate to make Bank liable for the performance of any of the terms and
conditions of any of the Leases or for any waste of the Property or for any
dangerous or defective condition of the Property or for any negligence in the
management, upkeep, repair or control of the Property resulting in loss or
injury or death to any lessee, licensee, employee or stranger.
The rights and remedies of Bank under this Assignment are cumulative and
are not in lieu of, but are in addition to, any other rights or remedies which
Bank shall have under the Deed of Trust or any other instrument constituting
security for the Note or at law or in equity.
If any term of this Assignment, or the application thereof to any person or
circumstances, shall, to any extent, be invalid or unenforceable, the remainder
of this Assignment, or the application of such term to persons or circumstances
other than those as to which it is invalid or unenforceable, shall not be
affected thereby, and each term of this Assignment shall be valid and
enforceable to the fullest extent permitted by law.
Any and all notices, elections, demands or requests permitted or required
to be made under this Assignment, including, without limitation, a Notice, shall
be in writing, signed by the party giving such notice, election, demand or
request and shall be delivered personally or sent by registered, certified or
regular United States mail, postage prepaid, or by Federal Express or similar
service for overnight, priority delivery, to the other party at the address set
forth above or to such other party and at such other address within the United
States of America as any party may designate as provided herein. The date of
receipt of such notice, election, demand or request shall be the earliest of (i)
the date of actual receipt, (ii) three days after the date of mailing by
registered, certified or regular mail, (iii) one day after the date of mailing
by Express Mail or the delivery (for redelivery) to Federal Express or another
similar service requiring a receipt or (iv) the date of personal delivery (or
refusal upon presentation for delivery).
Assignor hereby authorizes Bank to give written notice of this Assignment,
which may include a copy hereof, at any time to any tenant under any of the
Leases.
The terms "Assignor" and "Bank" shall be construed to include the legal
representatives, successors and assigns thereof. The gender and number used in
this Assignment are used as a reference term only and shall apply with the same
effect whether the parties are of the masculine or feminine gender, corporate or
other form, and the singular shall likewise include the plural.
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This Assignment may not be amended, modified or changed nor shall any
waiver of any provision hereof be effective, except only by an instrument in
writing and signed by the party against whom enforcement of any waiver,
amendment, change, modification or discharge is sought.
Notwithstanding anything contained herein to the contrary, in no event
shall this Assignment be deemed to reduce the indebtedness evidenced by the Note
by an amount in excess of the actual amount of cash received by Bank under the
Leases, whether before, during or after the occurrence of an Event of Default,
and Assignor acknowledges that in no event shall the indebtedness secured hereby
be reduced by the value from time to time of the rents, income and profits of or
from the Property. In addition, Bank reserves the right, at any time, whether
before or after the occurrence of an Event of Default, to recharacterize this
Assignment as merely constituting security for the indebtedness of Assignor to
Bank, which recharacterization shall be made by written notice delivered to
Assignor. Bank's receipt of any rents, issues and profits pursuant to this
Assignment after the institution of foreclosure proceedings, either by court
action or by the private power of sale contained in any Deed of Trust or deed of
trust now or hereafter securing the Note, shall not cure an Event of Default, as
defined in the Note, or affect such proceedings or sale.
This Assignment shall be governed by and construed in accordance with the
laws of the State of Nebraska.
[REMAINDER OF PAGE INTENTIONALLY BLANK;
EXECUTION PAGE FOLLOWS]
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IN WITNESS WHEREOF, Assignor has caused this instrument to be executed and
delivered as of the date first above written.
ASSIGNOR:
Professional Veterinary Products, Ltd.,
a Nebraska corporation
By: /s/ Xx. Xxxxxx X. Xxxxxx
-------------------------------------
Xx. Xxxxxx X Xxxxxx, its President
STATE OF NEBRASKA )
) SS
COUNTY OF Sarpy )
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The foregoing instrument was acknowledged before me a notary public on the
12/th/ day of May, 2003, by Xx Xxxxxx X. Xxxxxx, the President of Professional
Veterinary Products, Ltd. on behalf of said corporation.
/s/ Xxxxxxxx Xxxxxxx
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Notary Public
[EXECUTION PAGE OF ASSIGNMENTS OF RENTS AND LEASES]
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EXHIBIT A
LEGAL DESCRIPTION
Lot 24 together with the North 142.00 feet of Xxx 00, Xxxxxxx Xxxxxxxxxx Xxxx, a
Subdivision, in Sarpy County, Nebraska.
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EXHIBIT B
LIST OF LEASES
No Leases are in existence with respect to the Property as of the date hereof.
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