Exhibit 10.6
ASSIGNMENT OF RENTS AND LEASES
This Assignment of Rents and Leases (this "Assignment") made as of June 12,
2003 by DENTAL CARE PLUS, INC., an Ohio corporation, located at 0000 Xxxx Xxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx 00000 (the "Assignor") and FIFTH THIRD BANK,
an Ohio banking corporation, located at 00 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx,
Xxxx, for itself and as agent for any affiliate of Fifth Third Bancorp (the
"Assignee").
WITNESSETH:
WHEREAS, Assignor is indebted to Assignee in the aggregate principal amount
of One Million Eight Hundred Thousand Dollars ($1,800,000) pursuant to the Term
Note executed by Assignor and made payable to the order of Assignee, in the
principal amount of One Million Eight Hundred Thousand Dollars ($1,800,000) (the
"Note"), and all agreements, instruments and documents executed or delivered in
connection with the foregoing or otherwise related thereto (collectively,
together with any amendments, modifications, or restatements thereof, the "Loan
Documents").
NOW, THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, Assignor xxxxxx agrees, promises and undertakes as
follows:
1. Assignor hereby grants, transfers, and assigns and sets over to Assignee
all right, title and interest in and to, all rents, issues, profits and
privileges (now due or which may hereafter become due) of, (a) the real estate
located in Xxxxxxxx County, Ohio described in Exhibit "A" attached hereto and
made a part hereof, and all improvements at any time constructed thereon or any
personal property or fixtures at any time installed or used therein
(collectively, the "Property"), and (b) all leases now or hereafter existing on
all or any part of the Property, whether written or oral, or any letting or any
agreement for the use or occupancy of any part of the Property which may
heretofore have been or which may hereafter be made or agreed to between
Assignor or any other present, prior, or subsequent owner of the Property, or
any interest therein, or which may be made or agreed to by Assignee, its
successors or assigns, under the powers herein granted and any tenant or
occupant of all or any part of the Property (the "Leases" and each, a "Lease"),
including without limitation any Leases existing as of the date of this
Assignment and described in Exhibit "B" attached hereto and made a part hereof
(the "Existing Leases"), all for the purpose of securing the prompt payment,
performance and discharge, when due, of the following described obligations
(hereinafter, the "Indebtedness"):
(a) Each and every term, provision, obligation, covenant and agreement of
Assignor set forth in, the Loan Documents, all mortgages, security agreements,
instruments and documents securing the Loan Documents and all other documents
delivered or required, as a condition to the making of the loan evidenced
thereby, all of which are held by or for the benefit of Assignee; and
(b) All loans, advances, indebtedness and each and every other obligation
or liability of Assignor owed to Assignee or any affiliate of Fifth Third
Bancorp, however created, of every kind and description, whether now existing or
hereafter arising and whether direct or indirect, primary or as guarantor or
surety, absolute or contingent, due or to become due, liquidated or
unliquidated, matured or unmatured, participated in whole or in part, created by
trust agreement, lease, overdraft, agreement, or otherwise, whether or not
secured by additional collateral, whether originated with Assignee or owed to
others and acquired by Assignee by purchase, assignment or otherwise, and
including, without limitation, all loans, advances, indebtedness and each and
every other obligation or liability arising under the Loan Documents, all
obligations to perform or forbear from performing acts, any and all Rate
Management Obligations (as defined in the Loan Documents), all amounts
represented by letters of credit now or hereafter issued by Assignee or any
affiliate of Fifth Third Bancorp for the benefit of or at the request of
Assignor all agreements, instruments and documents evidencing, guarantying,
securing or otherwise executed in connection with any of the foregoing, together
with any amendments, modifications, and restatements thereof, and all expenses
and attorneys' fees incurred or other sums disbursed by Assignee or any
affiliate of Fifth Third Bancorp under this Assignment or any other document,
instrument or agreement related to any of the foregoing.
2. Assignor hereby represents that (a) except for the Existing Leases,
there are no leases, subleases or agreements to lease (as lessor or lessee) or
sublease (as sublessor or sublessee) all of or any part of the Property; (b)
Assignor is entitled to receive all the rents, issues and profits and to enjoy
all the rents and benefits mentioned herein and assigned hereby, and the same
have not been sold, assigned, transferred or set over by any instrument now in
force, and shall not at any time during the life of this Assignment be sold,
assigned, transferred or set over by Assignor or any other person or persons
taking under or through Assignor, except pursuant to this Assignment; and (c)
Assignor has the sole right to sell, assign, transfer, and set over the same and
to grant and confer upon Assignee the rights, interests, powers and authorities
herein granted and conferred.
3. Assignor shall from time to time execute any and all instruments
reasonably requested by Assignee in order to effectuate this Assignment and to
accomplish any of the purposes that are necessary or appropriate in connection
with this Assignment of the Property, including without limitation, specific
assignments of any Lease or agreement relating to the use and occupancy of the
Property or to any part thereof now or hereafter in effect, as may be necessary
or desirable in Assignee's opinion in order to further secure Assignee
hereunder.
4. Assignor shall not (i) amend or modify any Lease; or (ii) terminate or
accept from a tenant the termination of any Lease or Existing Lease, or (iii)
evict or institute proceedings to evict any tenant under a Lease or Existing
Lease, without the prior written consent of Assignee, which may be withheld in
Assignee's sole and absolute discretion.
5. This Assignment shall in no way operate to restrict or prevent Assignee
from using any remedy which it may now or hereafter have because of any present
or future breach of the terms or conditions of the Loan Documents.
6. Assignee shall not in any way be responsible for any failure to do any
or all of the things for which the rights, interests, power or authority are
herein granted; and Assignee shall not be responsible for, or liable under, any
of the agreements undertaken or obligations imposed upon the Assignor as lessor
under Leases or other agreements with respect to the Property.
-2-
7. Assignee shall be accountable only for the amounts, if any, actually
received by it under the terms of this Assignment.
8. Xxxxxxxx's failure to do any of the things or exercise any of the
rights, interests, powers or authority granted hereunder shall not be construed
as a waiver of any of the rights, interests, powers or authorities assigned and
granted to Assignee under this instrument.
9. Assignee may assign this Assignment and the rights accruing hereunder to
any subsequent assignee and holder of the Indebtedness for which this Assignment
is given as security.
10. The parties agree that this Assignment is an actual assignment
effective as of the date hereof, and that upon demand made by Assignee on the
lessor or lessee under any Leases or on any person liable for any of the rents,
issues, and profits of and from the Property or any part thereof, such lessor or
lessee or person liable for any of such rents, issues and profits shall, and is
hereby authorized and directed to pay to or upon Assignee's order, and without
any inquiry of any nature, all rents and other payments then or thereafter
accruing under the leases or any other instrument or agreement, oral or written,
granting rights to, and creating an obligation to pay rents, issues, or profits
in connection with the Property.
11. As long as no Event of Default exists under the Indebtedness secured
hereby, Assignee agrees not to demand from any lessor or lessee under the Leases
or from any other persons liable therefor, any of the rents, issues or profits
hereby assigned, but shall permit Assignor to collect all such rents, issues and
profits from the Property and the Leases on, but not prior to, accrual, and
Assignor shall apply the same (i) first, to the payment of taxes and assessments
upon the Property before penalty or interest is due thereon, (ii) second, to the
cost of such insurance and of such maintenance and repairs as are required by
the terms of the Loan Documents, and (iii) third, to the payment of principal,
premium (if any) and interest becoming due on the Loan Documents, before using
any part of the same for any other purposes; provided, however, that
notwithstanding the provisions of this section, all lessors and lessees under
the Leases and all persons liable for rents, issues and profits of and from the
Property shall comply with any demands for rents made by Assignee pursuant to
the provisions of this Assignment without reference to whether or not the same
is made in accordance with this section and without further consent from
Assignor.
12. Upon or at any time after the occurrence of an Event of Default under
the Indebtedness, Assignee may declare all sums secured hereby immediately due
and payable and may, at Assignee's option, without notice, either in Assignee's
person or by agent and with or without bringing any action or proceeding, or by
any receiver to be appointed by a court, enter upon, take possession of, and
manage and operate the Property and each and every part thereof, and in
connection therewith, Assignee may make, enforce, and modify Leases; fix or
modify rents; repair, maintain, and improve the Property; employ contractors,
subcontractors, and workmen in and about the Property; obtain and evict tenants;
in its own name, sue for or otherwise collect or reserve any and all rents,
issues and profits, including those past due and unpaid; employ leasing agents,
managing agents, attorneys and accountants in connection with the enforcement of
Assignee's rights hereunder and pay the reasonable fees and expenses thereof;
and otherwise do and perform any and all acts which Assignee may deem necessary
and
-3-
appropriate it and about the Property for the protection thereof and of
Assignee's rights hereunder or under the Loan Documents, and any and all amounts
expended by Assignee in connection with the foregoing shall constitute
additional Indebtedness secured hereby. Assignee shall apply any monies
collected by Assignee, as aforesaid, less costs and expenses incurred, as
aforesaid, upon any Indebtedness secured hereby in such order and manner as
Assignee may determine. The entering upon and taking possession of the Property;
the collection of rents, issues, and profits; the exercise of any rights
hereinabove specified; and the application of collections, as aforesaid, shall
not cure, waive, modify or affect any default hereunder or under the Loan
Documents.
13. All tenants or occupants of any part of the Property (including without
limitation, all persons claiming any interest as lessor or lessee under any
Leases) are hereby authorized to recognize the claims and demands of Assignee
without investigation as to the reason for any action taken by Assignee or the
validity or the amount of indebtedness owing to or the existence of any default
hereunder or under the Loan Documents, or the application to be made by
Assignee, of any amounts to be paid to Assignee. Assignee's sole signature shall
be sufficient for the exercise of any right under this Assignment and Assignee's
sole receipt given for any sums received shall be a full discharge and release
therefor to any such tenant or occupant of the Property. Checks for all or any
part of the rental collected under this Assignment shall be made to the
exclusive order of Assignee.
14. Assignor shall perform all of its obligations as lessor or lessee under
any Leases, and shall give prompt notice to Assignee of any notice of default by
Assignor under any Lease, together with a complete copy of any such notice.
Assignor shall enforce the performance and observance of each and every covenant
of the lessor's or lessees' under the Leases.
15. Assignee shall not be obligated to perform or discharge any obligation,
duty or liability under any Leases, nor shall this Assignment operate to place
upon Assignee responsibility for the control, operation; management, or repair
of the Property or the carrying out of any of the terms and conditions of any
Leases; nor shall this Assignment operate to make Assignee liable for any waste
committed on the Property by the lessor or lessee under any Lease or committed
by any other party, 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, injury or death to any tenant, licensee, employee,
invitee or stranger.
16. Assignor shall, and does hereby agree to, indemnify and hold Assignee
harmless of and from any and all liability, loss or damage which it may or might
incur under any Leases or under or by reason of this Assignment and of and from
any and all claims and demands whatsoever which may be asserted against it by
reason of any alleged obligations or undertakings on its part to perform or
discharge any of the terms, covenants, or agreements contained in any of the
Leases, except for liability, loss or damage and all claims and demands arising
from actions taken by Assignee or its authorized representatives under Section
12 hereof. Should Assignee incur any such liability, loss or damage under any
Lease or under or by reason of this Assignment, or in the defense of any such
claims or demands, the amount thereof, including costs, expenses, and reasonable
attorney's fees, shall be secured hereby, Assignor shall reimburse Assignee
therefor immediately upon demand, and upon Assignor's failure to do so, Assignee
may declare all such sums immediately due and payable.
-4-
17. Assignor has not and shall not accept rent in advance under any Leases
except only monthly rents for current months which may be paid in advance.
18. Assignor shall cause this Assignment to be recorded and filed and
re-recorded and re-filed in each and every public office in which said filing
and recording may be necessary to constitute record of notice of this Assignment
and the terms and provisions hereof as applicable to the Property, and Assignee
shall execute and deliver all such documents as may be reasonably required to
evidence the same.
19. This Assignment is binding on and inures to the benefit of the parties
hereto, their heirs, legatees, devisees, administrators, executors, successors
and assigns. The term "Assignor," as used herein, shall include each Assignor
whose name appears below, severally, and all such Assignors, jointly and
severally and their respective heirs, legatees, devisees, executors, successors
and assigns. The term "Assignee", as used herein, shall include the named
Assignee and all such Assignee's successors and assigns, including each and
every person or entity who or which, from time to time, becomes owner and holder
of the Loan Documents, and such successors and assigns shall have, hold and
enjoy all of the rights, powers, and benefits hereby afforded and conferred upon
the named Assignee as fully and with the same effect as if such successors and
assigns were by name herein designated as Assignee.
IN WITNESS WHEREOF, Assignor has executed this Assignment as of the date
first above written.
ASSIGNOR:
DENTAL CARE PLUS, INC.
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Its: President
type name: Xxxxxxx X. Xxxx
Its: President & CEO
ASSIGNEE:
FIFTH THIRD BANK
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Its: Vice President
type name: Xxxxxxx X. Xxxx
Its: Vice President
-5-
EXHIBIT A
PROPERTY DESCRIPTION
A-1
