EXHIBIT 10.44
ASSIGNMENT OF LEASES,
RENTS AND SECURITY DEPOSITS
from
[BORROWER],
as Assignor
to
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, AS LEAD AGENT,
as Assignee
Dated as of January __, 1997
________________________________________________________
After recording, please return to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxxxxx Xxxxxxxxxxx, Esq.
Prepared and drafted by:
Xxxxxx Xxxxxxxxxxx, Esq., attorney at law
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 (this
"Assignment"), dated as of this ___ day of January, 1997, between [XXXXXX REALTY
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CORPORATION], a Maryland corporation ("Assignor") and XXXXXX XXXXXXXX TRUST
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COMPANY OF NEW YORK, AS LEAD AGENT ("Assignee").
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WHEREAS, the Banks have provided a line of credit loan (the "Loan") to
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Assignor in the aggregate principal amount of [$17,000,000] evidenced by one or
more promissory notes dated as of the date hereof and those promissory notes to
be executed subsequent to the date hereof (collectively, the "Note") in
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accordance with the Revolving Credit Agreement, dated as of the date hereof,
among Assignor, Assignee, and the banks listed therein (as the same may
hereafter be modified, amended, restated or supplemented, the "Credit
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Agreement");
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WHEREAS, as a condition to funding the Loan, Assignee has required
that Assignor enter into this Agreement 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-3 hereto
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(the "Real Property"), together with all rents, income and profits
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(collectively, "Rents") arising from said lease(s), all modifications, renewals
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and extensions thereof and any assignable guarantees of the lessee's
obligations under said lease(s) (each of said lease(s) and all such guarantees,
modifications, renewals and extensions relating thereto being individually
referred to as a "Lease" and collectively referred to as the "Leases"); and,
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further, together with all Rents generated with respect to the Real Property and
from all future Leases relating to portions of the Real Property.
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, which Note is secured by an Indenture of Mortgage, Deed
of Trust, Security Agreement, Financing Statement, Fixture Filing and Assignment
of Leases and Rents, dated as of even date herewith, from Assignor to Assignee
relating to the Real Property (as such may hereafter be extended, modified,
supplemented or amended, the "Mortgage").
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B. Payment of all sums with interest thereon becoming due and
payable to Assignee under this Assignment, the Note, the Mortgage, or the other
Loan Documents to which Assignor is a party.
C. The performance and discharge of each and every obligation,
covenant, representation, warranty and agreement of Assignor under this
Assignment, the Note, the Mortgage and any other Loan Document to which Assignor
is a Party.
ASSIGNOR hereby covenants and warrants to Assignee that Assignor has
not executed any prior unreleased assignment of the Leases or the Rents, nor has
Assignor performed any act or executed any other instrument which might prevent
Assignee from operating under any of the terms and conditions of this Assignment
or which would limit Assignee in such operation; and Assignor further covenants
and warrants to Assignee that Assignor has not executed or granted any
modification whatsoever of any Lease which might have a Material Adverse
Effect, and that the Leases are in full force and effect and the Assignor has
neither given to nor received from any tenant any written notice of default
under any Lease which might have a Material Adverse Effect 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 in the aggregate might have a Material Adverse Effect.
ASSIGNOR further covenants with the Assignee (l) to observe and
perform all the obligations imposed upon the lessor under the Leases and not to
do or permit
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to be done anything to impair the security thereof; (2) 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 (except to the extent expressly
provided otherwise in any Lease), not to execute any other assignment of
lessor's interest in the Leases or assignment of rents arising or accruing from
the Leases or otherwise with respect to the Real Property; 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 Credit Agreement and the
Mortgage), and any of such acts done without the prior written consent of
Assignee shall be null and void; (3) to assign and transfer to Assignee any and
all subsequent Leases demising all or any part of the Real Property; and (4) to
execute and deliver, at the request of Assignee, all such further assurances and
assignments with respect to the Real Property as Assignee shall from time to
time reasonably request to implement the terms of this Assignment; provided,
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however, that no such further assurances and assignments shall increase
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Assignee'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 Credit Agreement or the Mortgage, as applicable.
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,
all Rents and to retain, use and enjoy the same.
3. At any time after the occurrence and during the 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, by the
Mortgage and the other Loan Documents, either in person or by agent, upon
bringing any action or proceeding, or by a receiver appointed by a court, may
take possession of the Real Property and have, hold, manage, lease, use and
operate the same on such terms and for such period of time as
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Assignee may deem proper. Assignee, either with or without taking possession of
said Real Property 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 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 reasonable cost of all alterations,
renovations, repairs or replacements, and all reasonable expenses incident to
taking and retaining possession of the Trust Estate, including the maintenance
of the Trust Estate in accordance with all Environmental Laws, although nothing
in this Assignment shall be construed so as to impose such an obligation upon
Assignee; and (b) the principal sum, interest and indebtedness secured hereby
and by the Mortgage and the other Loan Documents, 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 Paragraph 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, the other Loan Documents 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 the Real Property.
4. Assignee shall not be liable for any loss sustained by Assignor
resulting from Assignee's failure to let the Real Property 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 Real Property, in managing
such Real Property after any such Event of Default, except to the extent such
loss is caused by the gross 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
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under any Lease or under or by reason of this Assignment, and Assignor shall,
and does hereby agree to, indemnify Assignee for, and to hold Assignee harmless
from, prior to the time that Assignee becomes a mortgagee in possession or fee
owner of any Property or otherwise takes possession of any Property following an
Event of Default, any and all liability, loss or damage which may or might be
incurred under said Xxxxxx or under or by reason of this Assignment and the
exercise of Xxxxxxxx's 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, except to the extent caused by Assignee's gross negligence or willful
misconduct. 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 so to do Assignee may, at its option, exercise Assignee's remedies
under the Mortgage as same relates to the Trust Estate. It is further
understood that unless and until Assignee shall become a mortgagee in possession
or the fee owner of the Real Property 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 Real Property 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 Real Property 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 Real
Property resulting in loss or injury or death to any tenant, licensee, employee
or stranger, except to the extent caused by Assignee's gross negligence or
willful misconduct.
5. Upon payment in full of the principal sum, interest and
indebtedness secured hereby and by the Mortgage and the other Loan Documents, or
if the Mortgage is otherwise released pursuant to Section 36 of the Mort-
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gage or Section 2.9(b) of the Credit Agreement, this Assignment shall become
and be void and of no effect, but the affidavit, certificate, letter or
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 Real Property, 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.
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. 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 Real Property, together with assignments
thereof. Such assignments shall be on forms approved by Assignee or its
designee in its reasonable discretion, and Assignor agrees to pay all costs
reasonably incurred in connection with the examination of said Xxxxxx and the
preparation, execution and recording of such assignments or any other related
documents, including, without limitation, reasonable fees of Assignee's local
counsel.
8. The term "Lease" as used herein shall include any lease affecting
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the Real Property executed after the date hereof and during the term of this
Assignment.
9. Wherever used herein, the singular (including, without
limitation, the term "Lease") shall include
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the plural, and the use of any gender shall apply to all genders.
10. 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 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.
11. All notices, consents, approvals and requests required or
permitted hereunder shall be given in accordance with the terms of Section 26 of
the Mortgage.
12. 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.
13. Enforcement of this Assignment against any Property shall be
governed by the laws of the State in which such Property is located. Whenever
possible, each provision of this Assignment shall be 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.
14. This Assignment is delivered pursuant to, and upon and subject
to, the terms of the Credit Agreement. In the event that any provisions of
this Assignment and the Credit Agreement conflict, the provisions of the Credit
Agreement shall control. 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
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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, Assignor has duly executed this Assignment on the
date first hereinabove written.
WITNESS: ASSIGNOR:
By:____________________ [BORROWER]
Name:
By:____________________ By: ___________________________
Name: Name:
Title:
ASSIGNEE:
WITNESS: XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, AS LEAD AGENT
By:_____________________ By:__________________________________
Name: Name:
Title:
By:_____________________
Name:
ACKNOWLEDGEMENTS
[INSERT ACKNOWLEDGEMENT FOR APPLICABLE JURISDICTION]
Exhibit A
LEGAL DESCRIPTIONS
A-1
