1
EXHIBIT 10.9
Prepared by:
Xxx X. Xxxxxx, Esq.
Xxxxx & Xxxxxxx L.L.P.
0000 Xxxxxxxxxx Xxxxx
XxXxxx, XX 00000
After recording return to:
Xxx X. Xxxxxx, Esq.
Xxxxx & Xxxxxxx L.L.P.
0000 Xxxxxxxxxx Xxxxx
XxXxxx, XX 00000
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS (this "ASSIGNMENT") is made as of
the 8th day of June, 1998, by ARDEN REALTY FINANCE III, L.L.C., a Delaware
limited liability company having an office at 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx
000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 ("ASSIGNOR"), to XXXXXX BROTHERS REALTY
CORPORATION, a Delaware corporation having an office at Three World Financial
Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, its successors and assigns
("ASSIGNEE").
WITNESSETH THAT:
In consideration of Ten Dollars ($10.00), in hand paid, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignor hereby grants, transfers, pledges, and assigns to
Assignee, its successors and assigns, (i) all leases, subleases, licenses,
concessions and other occupancy agreements which now or may hereafter affect all
those certain lots or pieces of land, more particularly described in EXHIBIT A-1
THROUGH EXHIBIT A-22 attached hereto and made a part hereof, or any of the
improvements now or hereafter located thereon (said land and improvements
hereinafter collectively shall be referred to as the "PROPERTY") or any part
thereof and all guarantees, modifications, renewals and extensions thereof
(collectively, the "LEASES") and all documents and instruments made or hereafter
made in respect of the Leases, together with (ii) all of the rents, additional
rents, income, revenue, issues and profits, due or to become due or to which
Assignor is now or may hereafter become entitled, arising out of the Leases
(exclusive of any security deposits given under any Lease that have not been
applied in accordance with the provisions of the applicable Lease), or the
Property or any part or parts thereof (collectively, the "RENTS").
THIS ASSIGNMENT is made in connection with that certain Mortgage Note
made by Assignor to the order of Assignee dated as of the date hereof, in the
principal amount of One Hundred Thirty-six Million One Hundred Thousand and
No/100 Dollars ($136,100,000.00) (the "Mortgage Note") pursuant to that certain
Loan Agreement dated as of the date hereof by and between Assignor and Assignee
(the "Loan Agreement"). Unless otherwise defined herein,
2
capitalized terms used in this Assignment shall have the meanings ascribed to
them in the Loan Agreement. The principal, interest, and all other sums that may
now or hereafter be due and payable under the Mortgage Note and the other Loan
Documents are collectively referred to as the "OBLIGATIONS."
ASSIGNOR REPRESENTS AND WARRANTS that (i) none of the Leases and Rents
has been assigned or otherwise pledged or hypothecated to any other Person or
party whatsoever; (ii) Assignor has full power and authority to execute and
deliver this Assignment; and (iii) the execution and delivery of this Assignment
has been duly authorized by all necessary corporate or partnership actions by
Assignor and does not conflict with or constitute a default under any law,
judicial order or other agreement affecting Assignor or the Property.
ASSIGNOR COVENANTS with Assignee that Assignor (a) shall not execute any
other assignment of its interest as lessor or owner in the Leases and Rents to
any other Person or party whatsoever and (b) shall execute and deliver at the
request of Assignee all such further assurances, confirmations and assignments
in connection with the Property, the Leases and Rents or this Assignment as
Assignee shall from time to time reasonably require.
THIS ASSIGNMENT is made on the following terms, covenants and
conditions:
1. Present Assignment. Assignor does hereby absolutely and
unconditionally assign to Assignee Assignor's right, title and interest in all
current and future Leases and Rents, it being intended by Assignor that this
Assignment constitutes a present, absolute assignment and not an assignment for
additional security only. Such assignment to Assignee shall not be construed to
bind Assignee to the performance of any of the covenants, conditions or
provisions contained in any agreement relating to the Leases and Rents or
otherwise impose any obligation upon Assignee. Assignee hereby grants to
Assignor a revocable license to collect and receive the Rents as they become due
and payable until such time as an Event of Default (as defined in the Loan
Agreement) shall have occurred and be continuing; provided that the existence of
such license shall not operate to subordinate this Assignment to any subsequent
assignment of the Leases and Rents, in whole or in part, by Assignor, and any
such subsequent assignment shall be subject to the rights of Assignee hereunder.
Unless and until an Event of Default shall have occurred and be continuing,
Assignor shall have the right to possess and enjoy the Property, and to receive
the Rents, subject to the terms of the Mortgage Note and the other Loan
Documents (including, without limitation, SCHEDULE 5.11 of the Loan Agreement);
and provided, further, that if Assignor shall pay in full the principal of and
interest on the Mortgage Note and all other Obligations which this Assignment by
its terms secures, then this Assignment shall be released and reassigned upon
the written request, and at the expense, of Assignor.
2. Remedies of Assignee. Upon or at any time after an Event of
Default, Assignee may exercise any and all remedies available to it at law or
under any of the Loan Documents and may in addition, at its option, without
waiving such Event of Default, revoke the license granted to Assignor to collect
Rents, and then thereafter, without notice and without regard to the adequacy of
the security for the Obligations, either in person or by agent, with or without
bringing any action or proceeding, or, to the fullest extent permitted by
applicable law,
- 2 -
3
by a receiver appointed by a court, either with or without taking possession of
the Property, in its own name, demand, xxx for or otherwise collect and receive
all Rents, including, without limitation, those past due, and Assignee may apply
the Rents to the payment of the Obligations in such order and proportion,
consistent with the Loan Documents, as Assignee, in its sole discretion, may
determine. The exercise by Assignee of the option granted it in this Section 2
and the collection of the Rents and the application thereof as herein provided
shall not be considered a waiver of any default or Event of Default by Assignor
under the Mortgage Note or any other Loan Documents.
3. No Liability of Assignee. Assignee shall not be liable for any
loss sustained by Assignor resulting from Assignee's failure to let the Property
after an Event of Default or from any other act or omission of Assignee in
managing the Property after default. Assignee shall not be obligated to perform
or discharge any obligation, duty or liability under any Leases or under or by
reason of this Assignment, and Assignor shall, and hereby agrees to, indemnify
Assignee for, and to hold Assignee harmless from, any and all liability, loss or
damage which may or might be incurred thereunder or hereunder or by reason of
this Assignment and from any and all claims and demands whatsoever, including
the defense of any such claims or demands which may be asserted against Assignee
by reason of any alleged obligations and undertakings on its part in respect
thereof. Should Assignee incur any such liability, the amount thereof, including
costs, expenses and reasonable attorneys' fees, shall be secured by this
Assignment and by the other Loan Documents and shall accrue interest at the
Default Interest Rate until paid from the tenth (10th) day after the later of
(i) demand (which may be made prior to Assignee's expenditure) or (ii)
Assignee's expenditure, and Assignor shall reimburse Assignee therefor within
ten (10) days after demand. Assignee shall not be responsible or liable for any
waste committed on the Property by the tenants or any other parties, or for any
dangerous or defective condition of the Property arising on or after the date
hereof, or for any negligence in the management, upkeep, repair or control of
the Property resulting in loss or injury or death to any tenant, licensee,
employee or stranger on or after the date hereof.
4. Notice to Obligors. Assignor hereby authorizes and directs all
persons (including, without limitation, the Manager under the Management
Agreement) obligated to pay any Rents, upon receipt from Assignee of written
notice that an Event of Default has occurred and is continuing or otherwise upon
notice from Assignee, to pay over to Assignee all Rents and to continue so to do
until otherwise notified by Assignee.
5. Other Security. Assignee may take or release other security for
the payment of the Obligations, may release any party primarily or secondarily
liable therefor and may apply any other security held by it to the reduction or
satisfaction of the Obligations, in such order and manner as Assignee shall see
fit, without prejudice to any of its rights under this Assignment.
6. Other Remedies. Nothing contained in this Assignment and no act
done or omitted by Assignee pursuant to the power and rights granted to Assignee
hereunder shall be deemed to be a waiver by Assignee of its rights and remedies
under the Mortgage Note, or any other Loan Documents, and this Assignment is
made and accepted without prejudice to any of
- 3 -
4
the rights and remedies possessed by Assignee under the terms thereof. The right
of Assignee to collect the Obligations and to enforce any other security
therefor held by it may be exercised by Assignee either prior to, simultaneously
with, or subsequent to any action taken by it hereunder or under any other Loan
Document.
7. No Mortgagee in Possession. Nothing herein contained shall be
construed as constituting Assignee a "mortgagee in possession" in the absence of
entry upon and the taking of actual possession of the Property by Assignee. In
the exercise of the powers herein granted Assignee, no liability shall be
asserted or enforced against Assignee, all such liability being expressly waived
and released by Assignor.
8. Assignee as Attorney in Fact. Assignor does hereby irrevocably
constitute and appoint Assignee, while this Assignment remains in force and
effect, and in each instance, to the fullest extent permitted by applicable law,
its true and lawful attorney in fact, coupled with an interest and with full
power of substitution, delegation and revocation, for Assignor and in its name,
place and stead, to enter and take possession of the Property by actual physical
possession without the commencement of any action to foreclose the Mortgage or
to exercise any power of sale Assignee may have thereunder and to do and perform
such actions with respect to the Property as Assignee may deem appropriate, as
fully as Assignor could do if personally present, Assignor hereby ratifying and
confirming all that Assignee, as attorney or its substitute, shall lawfully do
or cause to be done by virtue hereof; provided, however, that Assignee shall not
do or perform such actions until an Event of Default shall have occurred and be
continuing.
9. Conflict of Terms. In case of any conflict between the terms of
this Assignment and the terms of any other Loan Document, the terms of such Loan
Document shall prevail.
10. No Oral Change. This Assignment and any provisions hereof may
not be modified, amended, waived, extended, changed, discharged or terminated
orally, or by any act or failure to act on the part of Assignor or Assignee, but
only by an agreement in writing signed by the party against whom the enforcement
of any modification, amendment, waiver, extension, change, discharge or
termination is sought.
11. Non-Waiver. The failure of Assignee to insist upon strict
performance of any term hereof shall not be deemed to be a waiver of any term of
this Assignment. Assignor shall not be relieved of Assignor's obligations
hereunder by reason of (i) failure of Assignee to comply with any request of
Assignor or any other party to take any action to enforce any of the provisions
hereof or of the Mortgage, the Mortgage Note or any of the other Loan Documents
or, (ii) any agreement or stipulation by Assignee extending the time of payment
or otherwise modifying or supplementing the terms of this Assignment, the
Mortgage Note, the Mortgage or any of the other Loan Documents. Assignee may
resort for the payment of the Obligations to any other security held by Assignee
in such order and manner as Assignee, in its discretion, may elect. Assignee may
take any action to recover the Obligations, or any portion thereof, or to
enforce any covenant hereof without prejudice to the right of Assignee
thereafter to enforce its rights under this Assignment. The rights of Assignee
under this Assignment shall be separate,
- 4 -
5
distinct and cumulative and none shall be given effect to the exclusion of the
others. No act of Assignee shall be construed as an election to proceed under
any one provision herein to the exclusion of any other provision.
12. Inapplicable Provisions. If any term, covenant or condition of
this Assignment is held to be invalid, illegal or unenforceable in any respect,
this Assignment shall be construed without such provision.
13. Counterpart Originals. This Assignment may be executed in any
number of duplicate originals and each such duplicate original shall be deemed
to be an original.
14. Governing Law. This Assignment, the rights and obligations of
the parties hereto and any claims or disputes relating thereto, shall be
governed by and in accordance with the laws of the State of New York, except
that, for purposes of determining the creation, validity, priority and
enforcement of the assignment herein and the exercise of remedies hereunder, the
law of the State in which the Property is located shall govern.
15. Binding Effect. This assignment, together with the covenants and
warranties herein contained, shall inure to the benefit of Assignee and any
subsequent holder of the indebtedness secured by the Loan Documents and shall be
binding upon Assignor, its successors and assigns.
[SIGNATURE PAGE TO FOLLOW]
- 5 -
6
IN WITNESS WHEREOF, Assignor has executed this Assignment of Leases and
Rents under seal the day and year first above written.
ASSIGNOR:
ARDEN REALTY FINANCE III, L.L.C.,
a Delaware limited liability company
By: _____________________________
Name:________________________
Title:_________________________
STATE OF ________________ )
ss
COUNTY OF ______________ )
On June ___, 1998, before me ____________________ a notary public,
personally appeared _________________________________, personally known to be
(or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
(Seal)
- 6 -
7
EXHIBIT A
Description of Land
8
Recording Requested By:
Commonwealth Land Title
Insurance Company
When recorded mail document to:
Xxxxx & Xxxxxxx L.L.P.
Suite 1100
0000 Xxxxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxxxx, Esq.
--------------------------------------------------------------------------------
SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE
TITLE(S)
--------------------------------------------------------------------------------
ASSIGNMENT OF LEASES AND RENTS
--------------------------------------------------------------------------------
