ASSIGNMENT OF RENTS AND LEASES
EXHIBIT 10.6
Following recording, return to: Xxxxx X. Xxxxxx, XxXxxxx North Xxxxxx & Xxxxx, PC LLO, First
National Tower, Suite 3700, 0000 Xxxxx Xxxxxx , Xxxxx, Xxxxxxxx 00000, Tel. (000) 000-0000.
THIS ASSIGNMENT OF RENTS AND LEASES (the “Assignment”) is made this November 14, 2006, by
Professional Veterinary Products, Ltd., a Nebraska corporation, whose address is 00000 Xxxxx
000xx Xxxxxx, Xxxxx, Xxxxxxxx 00000 (hereinafter called “Assignor”), in favor of First
National Bank of Omaha, a national banking association, whose address is 0000 Xxxxx 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. All capitalized terms used in this Assignment,
except terms otherwise defined herein, shall have the same meaning as such terms have in the Loan
Agreement (as defined below).
This Assignment is made for the purpose of securing:
(a) The payment of the indebtedness (including any extensions or renewals thereof) evidenced
by certain promissory notes (the “Notes”) of Assignor of even date herewith in the aggregate
principal sum of $44,666,000 entered into in connection with the Loan Agreement by and among
Assignor, ProConn, LLC, Exact Logistics, LLC and Bank of even date herewith (the “Loan Agreement”)
and secured by the Collateral (including the Property) under the Collateral Agreements;
(b) The payment of all other sums with interest thereon becoming due and payable to Bank
under the provisions of the Loan Agreement, the Notes and the Collateral Agreements; and
(c) The performance and discharge of each and every term, covenant and condition contained in
the Loan Agreement, the Notes and the Collateral Agreements.
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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 any Collateral Agreement.
(h) Assignor shall not permit or consent to the assignment by any tenant of its rights under
any 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 any tenant’s interest under
any Lease, including, without limitation, any leasehold deed of trust.
(i) All existing Leases are described on Exhibit B to this Assignment. 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 Loan
Agreement, the Notes or any Collateral Agreement) 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,
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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 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 Loan Agreement, the Notes and the Collateral Agreements, 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 Loan
Agreement, the Notes, the Collateral Agreements 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
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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 of America 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 (a) the date of actual receipt, (b) three days after the date of
mailing by registered, certified or regular mail, (c) 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 (d) 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.
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 Notes 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 Collateral Agreement now or hereafter securing the Notes, shall not cure an
Event of Default or affect such proceedings or sale.
This Assignment shall be governed by and construed in accordance with the laws of the State of
Nebraska.
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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
|
) |
The foregoing instrument was acknowledged before me a notary public on the 8th day
of November, 2006, by Xx. Xxxxxx X. Xxxxxx, the President of Professional Veterinary Products,
Ltd., on behalf of said corporation.
| /s/ X. X. Xxxxxxxx | ||||
| Notary Public | ||||
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EXHIBIT A
LEGAL DESCRIPTION
PARCEL I: Xxx 0, Xxxxxxx Xxxxxxxxxx Xxxx Replat 1, a Subdivision in Sarpy County, Nebraska.
PARCEL II: 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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