EXHIBIT 99.6
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AMENDED AND RESTATED ASSIGNMENT OF LEASES AND RENTS
from
VENTAS REALTY, LIMITED PARTNERSHIP,
Assignor
to
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT,
Assignee
Dated: As of April 17, 2002
PREPARED BY AND UPON RECORDATION RETURN TO:
▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq.
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AMENDED AND RESTATED ASSIGNMENT OF LEASES AND RENTS
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Amended and Restated Assignment of Leases and Rents (this
"Assignment"), dated as of April 17, 2002, from VENTAS REALTY, LIMITED
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PARTNERSHIP, a Delaware limited partnership having its principal office at ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
as assignor hereunder ("Assignor"), to BANK OF AMERICA, N.A., a national banking
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association, having an office at Agency Management, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, Mail Code: CA5-701-15-19, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as
Administrative Agent for the Lenders (as hereinafter defined) party to the
Credit Agreement (as hereinafter defined) ("Assignee").
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WHEREAS, Assignor previously executed and delivered that certain
Assignment of Leases and Rents dated as of January 31, 2000, by and between
Assignor, as assignor thereunder, and Bank of America, N.A., as assignee
thereunder, recorded in the official records of ▇▇▇▇▇▇ County, Indiana, as
Instrument No. 2000-0038832 (the "Original Assignment");
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WHEREAS, the Assignor is the owner of the fee simple interest in the
real property described on Schedule A attached hereto and incorporated herein by
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reference;
WHEREAS, in connection with that certain credit facility in the amount
of $350 million (the "Credit Facility") established in favor of Assignor
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pursuant to the terms of that certain Second Amended and Restated Credit,
Security and Guaranty Agreement dated as of April 17, 2002 (as amended,
modified, increased, extended, renewed or replaced from time to time, the
"Credit Agreement") among Assignor, as borrower thereunder, Ventas, Inc.,
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certain subsidiaries of Assignor, as guarantors, the Lenders identified therein
(the "Lenders"), Bank of America, N.A., as issuing bank for the letter of credit
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thereunder, Administrative Agent and UBS Warburg, as Syndication Agent, Assignor
has refinanced the debt obligations secured by the Original Assignment. Terms
used but not otherwise defined herein shall have the meanings provided in the
Credit Agreement; and
WHEREAS, the Lenders agreed to make the requested Credit Facility
available to the Assignor provided that, among other things, the Assignor amends
and restates the Original Assignment and Assignor and Administrative Agent have
agreed to amend and restate the Original Assignment in its entirety.
NOW THEREFORE, in consideration of the premises herein stated and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Assignor and Administrative Agent agree that, effective as
of the date hereof, the terms of the Original Assignment are hereby amended and
restated in their entirety as follows:
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, in this Assignment, any reference to "Secured Indebtedness"
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shall mean the total indebtedness and liabilities to be secured by this
Assignment consisting of the sum of the following:
(i) the aggregate principal of all Loans and other advances
made and to be made by the Lenders under the Credit Agreement, the
outstanding amount of which shall not exceed Three Hundred Fifty
Million Dollars ($350,000,000) at any time, as the same may be
increased to Four Hundred Fifty Million Dollars ($450,000,000) per the
terms of the Credit Agreement; plus
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(ii) interest on the principal amount of all Loans made
and to be made by the Lenders under the Credit Agreement, as provided
in the Credit Agreement; plus
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(iii) all other amounts payable under the Credit Agreement,
the Mortgage and any other Fundamental Document (as such term is
defined in the Credit Agreement) which relate to the Credit Agreement,
or any of the security therefor, in each case as the same may be
amended, amended and restated, modified or supplemented from time to
time (including advances to protect the collateral and all costs of
enforcement), or as the maturities thereof may be extended or renewed
from time to time; plus
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(iv) any and all Hedging Obligations (as defined in the Credit
Agreement) payable by Assignor to the Hedging Banks (as defined in the
Credit Agreement) or any amounts payable to Bank of America, N.A. or
any other Lender in connection with any bank account maintained by the
Borrower or any other Credit Party (as defined in the Credit Agreement)
at Bank of America, N.A. or any other Lender or any other banking
services provided to the Borrower or any other Credit Party by Bank of
America, N.A., ▇▇▇▇▇▇ Guaranty Trust Company of New York or any other
Lender with respect to, or in any way related to, any of the
Fundamental Documents; plus
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(v) any other Obligations (as defined in the Credit
Agreement) of the Borrower.
WHEREAS, in furtherance of the foregoing, Assignor has executed and
delivered to Assignee an Amended and Restated Mortgage and Security Agreement,
dated of even date herewith (the "Mortgage") on inter alia, all of Assignor's
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right, title and interest in and to the land more particularly described in
Schedule A attached hereto and made a part hereof (the
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"Land") and any and all buildings and improvements now or hereafter located or
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erected on the Land (collectively, the "Improvements"). The Land and the
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Improvements, together with certain other properties and rights described in the
Mortgage, are hereinafter referred to collectively as the "Mortgaged
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Property".
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WHEREAS, the Lenders require that the Assignor execute and deliver this
Assignment to further secure the prompt and punctual payment of the Secured
Indebtedness. Accordingly, Assignor has duly authorized the execution and
delivery of this Assignment, and all actions required by law and all actions of
Assignor required therefor have been duly taken.
NOW THEREFORE, in consideration of the foregoing and in consideration
of good and valuable consideration paid by Assignee to Assignor, the receipt and
sufficiency of which is hereby acknowledged, and in order to further secure the
prompt and punctual payment of the Secured Indebtedness and the performance of
the Assignor of the covenants and agreements contained in the Credit Agreement,
the Mortgage and the other Fundamental Documents, Assignor by these presents
does hereby unconditionally, absolutely and presently bargain, sell, assign and
set over unto Assignee all right, title and interest of Assignor in and to any
and all existing or future leases, lettings, tenancies, subleases, franchises,
concessions, or any other agreements which may now or hereafter be entered into
in respect of the Mortgaged Property, or upon or covering use or occupancy of
all or any part of the Mortgaged Property as the same may be hereafter amended,
modified, restated, extended, renewed, replaced or consolidated and any and all
guaranties of any lessee's obligations under any provisions thereof and all
rights relating thereto and under any and all extensions and renewals thereof
(any such leases or lease agreements and tenancies being hereinafter referred to
individually as a "Lease" and collectively as "Leases" and any lessee thereunder
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is hereinafter referred to individually as a "Lessee" and collectively as
"Lessees");
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TOGETHER with the immediate and continuing right to collect and receive
all the rents, income, receipts, revenues and other benefits, issues and profits
and all cash collateral now due or which may become due or to which Assignor may
now or shall hereafter (including the period of redemption, if any) become
entitled or may demand or claim, arising or issuing from or out of the Leases or
from or out of the Premises or any part thereof, including, but not by way of
limitation: minimum rents, additional rents, percentage rents, parking income,
tax and insurance contributions, deficiency rents and liquidated damages
following default, the premium payable by any Lessee upon the exercise of a
cancellation privilege provided in any Lease, all income from any licenses,
franchises or any other agreements and all proceeds payable under any
condemnation awards or settlements, policies of insurance or settlements thereof
covering loss of rents resulting from untenantability caused by destruction or
damage to the Mortgaged Property or any part thereof together with any and all
rights and claims of any kind which Assignor may
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have against any Lessee or any subtenants or occupants of the Mortgaged
Property, additional charges, royalties, insurance proceeds, condemnation awards
and other payments, tenders and security deposits payable to or receivable by
Assignor under the Leases, all damages or other amounts payable in the event of
any expiration or termination of the Leases pursuant to the terms thereof, by
operation of law or otherwise, any indemnification against or reimbursement for
sums paid and costs and expenses incurred by Assignor under the Leases or
otherwise, and any awards in the event of the bankruptcy of any tenant or
guarantor of a Lease (all such moneys, rights and claims described in this
paragraph being called "Rents").
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TOGETHER with all claims, rights, powers, privileges and remedies of
Assignor, whether provided for in the Leases or arising by statute or at law or
in equity or otherwise, consequent on any failure on the part of any tenant to
perform or comply with any terms of the Leases; all rights to take all action
upon the happening of a default under the Leases as shall be permitted by the
Leases or by law, including without limitation, the commencement, conduct and
consummation of proceedings at law or in equity; and the full power and
authority, in the name of Assignor or otherwise, to enforce, collect, receive
and receipt for any and all of the foregoing and to do any and all other acts
and things whatsoever which Assignor or any landlord is or may be entitled to do
under the Leases.
TO HAVE AND TO HOLD unto the Assignee, its successors and assigns,
forever.
This Assignment is intended to be an absolute assignment from Assignor
to Assignee and not merely the passing of a security interest, Assignor
reserving, however, a license to collect, except as hereinafter provided, the
Rents, as they respectively become due, but not more than one month in advance
of the date said rent is due per the terms of the applicable lease, and to
enforce the Leases, so long as no Event of Default (as such is defined in the
Credit Agreement) shall have occurred. Said license shall terminate and be
revoked automatically upon the occurrence of an Event of Default and all Rents
and other sums then held or thereafter received by Assignor from the ownership
and operation of the Mortgaged Property shall be held by Assignor in trust for
the benefit of Assignee and Assignor shall forthwith remit same in their
entirety to Assignee or its designee and Assignee (or a Receiver appointed
pursuant to the provisions of Paragraph 8 of this Assignment) may to the fullest
extent permitted by the Leases: (i) exercise any of Assignor's rights under the
Leases; (ii) enforce the Leases; (iii) demand, collect, ▇▇▇ for, attach, levy,
recover, receive, compromise and adjust, and make, execute and deliver receipts
and releases for all Rents, and for all other payments that may then be or may
thereafter become due, owing or payable with respect to the Leases; and (iv)
generally, do, execute and perform any other act, deed, matter or thing
whatsoever that ought to be done, executed and performed in and about or with
respect to the Leases, as fully as allowed or authorized by this Assignment.
Upon the occurrence of such Event of Default Assignee shall not
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be required to take any action whatsoever, including, without limitation,
instituting legal proceedings of any kind, to terminate Assignor's license to
collect Rents or enforce any of the other provisions or remedies contained in
the Assignment.
Assignor hereby covenants and agrees as follows:
1. Definitions. In this Assignment, all words and terms not
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defined herein shall have the respective meanings set forth in the Credit
Agreement.
2. Intentionally Omitted.
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3. Rights and Remedies. Assignor agrees that upon the occurrence
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of an Event of Default, the license reserved herein by Assignor shall cease and
terminate, and Assignee is hereby authorized to enter and take possession of the
Mortgaged Property, or any part thereof, and to perform all acts necessary for
the operations and maintenance of the Mortgaged Property in the same manner and
to the same extent that Assignor might reasonably so act. It is the intention of
the parties that Assignee's right to collect the Rents due and owing may be
exercised without electing to exercise Assignee's right to enter, take over and
assume the management, operation and maintenance of the Mortgaged Property. In
furtherance thereof and not by way of limitation, Assignee is empowered, but
shall be under no obligation, to collect the Rents, to enforce payment thereof
and the performance of any and all other terms and provisions of the Leases, to
exercise all the rights and privileges of Assignor thereunder, including the
right to fix or modify Rents, to bring or defend any suits in connection with
the possession of the Mortgaged Property or any part thereof in its own name or
Assignor's name, to relet the Mortgaged Property or any part thereof and to
collect the Rents under any new Lease. Assignee shall from time to time apply
the net amount of income after payment of all proper costs and charges,
including loss or damage referred to hereinafter in Paragraph 7, and reasonable
attorneys' fees, costs, expenses and charges through all appeals to the Secured
Indebtedness. The manner of the application of such net income, the
reasonableness of the costs and charges to which such net income is applied and
the item or items which shall be credited thereby shall be within the sole and
uncontrolled discretion of Assignee. Such entry and taking possession of the
Mortgaged Property, or any part thereof, may be made by actual entry and
possession, or by written notice to Assignor, as Assignee may elect, and no
further authorization shall be required. Assignee shall only be accountable for
money actually received by it pursuant to this Assignment. Notwithstanding any
action taken by Assignee pursuant to this Paragraph 3 or otherwise in this
Assignment, neither the assignment made pursuant hereto or any such action shall
constitute Assignee as a "mortgagee in possession."
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4. Termination of Assignment. Upon payment to Assignee of the full
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amount of the Secured Indebtedness, as evidenced by a recorded satisfaction or
release of the Mortgage, or otherwise upon the release of the Mortgage in
accordance with its terms or the requirements of the Credit Agreement, this
Assignment shall be void and of no effect.
5. Consent to Payment of Rents. Assignor irrevocably consents that the
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Lessees, upon demand and notice from Assignee of an Event of Default, shall pay
the Rents to Assignee without liability of the Lessees for the determination of
the actual existence of any such Event of Default claimed by Assignee. Assignor
hereby irrevocably authorizes and directs the Lessees, upon receipt of any
notice from Assignee of an Event of Default, to pay to the Assignee the Rents
due and to become due under the Leases. Assignor agrees that the Lessees shall
have the right to rely upon any such notices of Assignee and that the Lessees
shall pay such Rents to Assignee, without any obligation and without any right
to inquire as to whether such Event of Default actually exists, notwithstanding
any claim of Assignor to the contrary. Assignor shall have no claim against any
Lessee for any Rents paid by any Lessee to Assignee. Upon the curing of the
Event of Default, Assignee shall give written notice thereof to Lessees, and
thereafter, until further notice from Assignee, Lessees shall pay the Rents to
Assignor.
6. Right to Further Assignment. Assignee shall have the right to assign
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Assignor's right, title, and interest in the Leases to any subsequent holder of
the Mortgage and to any person acquiring title to the Mortgaged Property through
foreclosure or otherwise. The receipt by Assignee of any Rents pursuant to this
Assignment after the institution of foreclosure proceedings under the Mortgage
shall not cure such default nor affect such proceedings or any sale pursuant
thereto. After Assignor shall have been barred and foreclosed of all right,
title, interest, and equity of redemption in the Mortgaged Property, no assignee
of Assignor's interest in the Leases shall be liable to account to Assignor for
the Rents thereafter accruing.
7. Indemnity. Assignor hereby agrees to indemnify and hold Assignee
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harmless from and against any and all costs and expenses, liability, loss, or
damage (including, without limitation reasonable attorneys' fees, costs,
expenses and charges through all appeals but excluding any such costs and
expenses, liability, loss or damage to the extent incurred (x) by reason of the
gross negligence or willful misconduct, as determined by a final order or
judgment of a court of competent jurisdiction, of Assignee, or (y) in any
litigation in which Assignee and Assignor are adverse to each other, and in
which the Assignor prevails on its claims and the Assignee does not prevail on
its defenses or its counterclaims interposed in such litigation) which Assignee
may incur (a) under any of the Leases, (b) by reason of this Assignment, (c)
arising from any action taken by Assignee pursuant to this Assignment, (d) as a
result of any claims or demands which may be asserted against Assignee by reason
of any alleged obligation or undertaking to be performed or discharged by
Assignee under any of the Leases or this
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Assignment, or (e) the enforcement (or attempted enforcement) of this indemnity.
Nothing herein contained shall be construed to bind Assignee to the performance
of any of the terms and provisions contained in any of the Leases, or otherwise
to impose any obligation on Assignee until such time as Assignee shall have
succeeded to the interests of Assignor under the Leases through foreclosure of
the Mortgage, the acceptance of a deed in lieu of foreclosure, or otherwise.
Prior to actual entry and taking possession of the Mortgaged Property by
Assignee, this Assignment shall not operate to place responsibility for the
control, care, management, or repair of the Mortgaged Property upon Assignee or
for the carrying out of any of the terms and provisions of any Lease. Should
Assignee incur any liability by reason of actual entry and taking possession or
for any other reason or occurrence or sustain loss or damage under any Lease or
under or by reason of this Assignment or in the defense of any such claims or
demands, Assignee shall within fifteen (15) days after demand therefor from
Assignee, reimburse Assignee for the amount thereof, including interest at the
rate provided in the Credit Agreement, or the highest rate permitted by law,
whichever is lesser, together with all costs and expenses (including without
limitation reasonable attorneys' fees, costs, expenses and charges), and may
retain possession and collect the Rents and, from time to time, apply them in or
toward satisfaction of or reimbursement for said loss or damage.
8. Receiver. Without limiting any other provision of this Assignment,
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upon the occurrence of an Event of Default, Assignee shall be entitled to the
appointment of a receiver, supervisor, trustee, liquidator, conservator or other
custodian (a "Receiver") of the Mortgaged Property, without notice to the
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Assignor, to the fullest extent permitted by law, as a matter of right and
without regard to or the necessity to disprove the adequacy of the security for
the Secured Indebtedness or the solvency of the Assignor or any other obligor,
and the Assignor hereby, to the fullest extent permitted by applicable law,
irrevocably waives such necessity and consents to such appointment, without
notice, said appointee to be vested with the fullest powers permitted under
applicable law. Any funds received by Assignee or such Receiver hereunder, after
payment of all proper costs and charges, shall be applied to the Secured
Indebtedness in accordance with the provisions of the Credit Agreement and the
Mortgage. Assignee shall be accountable to Assignor only for monies actually
received by Assignee or such Receiver pursuant to this Assignment. The
collection of said funds and the application thereof as aforesaid shall not cure
or waive any default or waive, modify or affect any notice of default hereunder
or under the Mortgage or invalidate any act done pursuant to such notice.
Nothing contained herein shall operate or be construed to: (a) obligate
Assignee, or a Receiver to perform any of the terms, covenants or conditions
contained in the Leases or otherwise to impose any obligation upon Assignee or
such Receiver with respect to the Leases; or (b) place upon Assignee or such
Receiver any responsibility for the operation, control, care, management or
repair of the Mortgaged Property.
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9. Lease Enforcement. Assignor at its expense will enforce all material
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provisions of the Leases in accordance with their terms, except to the extent
(i) failure to enforce such material provisions would not materially reduce the
economic benefits to be derived from Assignor under any such Lease or (ii)
Assignee consents in writing, such consent not to be unreasonably withheld.
Neither this Assignment nor any action or inaction on the part of Assignee shall
release (i) any Lessee, (ii) any guarantor of any Lease or (iii) Assignor from
any of their respective obligations under the Leases or constitute an assumption
of any such obligation on the part of Assignee. No action or failure to act on
the part of Assignor shall adversely affect or limit the rights of Assignee
under this Assignment or, through this Assignment, under the Leases.
10. Further Assurances. Assignor will, from time to time, upon request
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of Assignee or a Receiver, execute all instruments and further assurances and
all supplemental instruments and take all such action as Assignee from time to
time may reasonably request in order to perfect, preserve and protect the
interests intended to be assigned to Assignee hereby.
11. Assignor's Lease Covenants. Except as otherwise expressly set forth
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in the Credit Agreement (i) the Leases shall remain in full force and effect
irrespective of any merger of the interest of the lessor and Lessees thereunder;
(ii) Assignor will perform all of its covenants and agreements as lessor under
the Leases, and will not suffer or permit to occur any release of liability of
any Lessee or the accrual of any right in any Lessee to withhold payment of
Rents; (iii) Assignor will give prompt notice to Assignee of any notice of
default, event of default, cancellation or surrender received from any Lessee or
from any other person with respect to any Lease and furnish Assignee with
complete copies of any said notice; (iv) Assignor shall not unilaterally or by
agreement, subordinate, amend, modify, extend, discharge, terminate, surrender,
waive or otherwise change any term of any of the Leases; and (v) if requested by
Assignee, Assignor will enforce the Leases and all remedies available to
Assignor against the Lessees in case of default under any Lease by a Lessee. All
rights, powers and privileges of Assignee herein set forth are coupled with an
interest and are irrevocable. If the Leases shall be amended as permitted
hereby, they shall continue to be subject to the provisions hereof without the
necessity of any further act by any of the parties hereto.
12. Notices. Notices and other communications provided for herein shall
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be in writing and shall be delivered or mailed (or if by facsimile
communications equipment, delivered by such equipment) addressed, (a) if to the
Assignee, to it at Agency Management, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, Mail Code:
CA5-701-05-19, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇,
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ with a copy to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ F
▇▇▇▇, NC-001-15-04, Charlotte, North Carolina, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇, or (b) if to Assignor, to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
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Attn: General Counsel, Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇, with a courtesy copy to
Barack, Ferrazzano, Kirschbaum, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Facsimile No.: (312)
984-3150, or (c) such other address as such party may from time to time
designate by giving written notice to the other parties hereunder. Any failure
of any Person giving notice pursuant to this Section to provide a courtesy copy
to a party as provided herein shall not affect the validity of such notice. All
notices and other communications given to any party hereto in accordance with
the provisions of this Assignment shall be deemed to have been given (x) on the
date of receipt, when sent by registered or certified mail, postage prepaid,
return receipt requested, if by mail, (y) when delivered, if delivered by hand
or overnight courier service or (z) when receipt is acknowledged, if by
facsimile communications equipment, in each case addressed to such party as
provided in this Section or in accordance with the latest unrevoked written
direction from such party. No notice to or demand on Assignor shall entitle
Assignor to any other or further notice or demand in the same, similar or other
circumstances.
13. Governing Law: Severability. THIS ASSIGNMENT SHALL BE GOVERNED BY
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AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE IN WHICH THE
REAL PROPERTY IS LOCATED. WHENEVER POSSIBLE, EACH PROVISION OF THIS ASSIGNMENT
SHALL BE INTERPRETED IN SUCH 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. Recording. Assignor shall pay all recording and filing fees in
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respect to this Assignment and any agreements, instruments and documents made
pursuant to the terms hereof or ancillary hereto, as well as any and all taxes
and fees which may be due and payable on the recording of this Assignment and
any taxes and fees hereafter imposed on this Assignment. Should Assignor fail to
pay the same, all such recording and filing fees and taxes may be paid by
Assignee on behalf of Assignor and the amount thereof, together with interest at
the applicable rate provided for in the Credit Agreement, shall be payable by
Assignor to Assignee within fifteen (15) days after demand therefor from
Assignee, or at the option of Assignee, Assignee may reimburse itself therefor
out of the Rents collected by Assignee. Assignor agrees that any such charge
shall not be deemed to be additional interest or a penalty, but shall be deemed
to be liquidated damages because of the difficulty in computing the actual
amount of damages in advance; provided, however, that any sums collected by
Assignee as liquidated damages, as aforesaid, which are held to be interest in
excess of the maximum rate permitted by law, shall be
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deemed a payment in reduction of the principal sum then outstanding under the
Credit Agreement and shall be so applied.
15. Rights Cumulative; No Waiver. The rights and remedies herein
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expressed to be vested in or conferred upon the Assignee shall be cumulative and
shall be in addition to and not in substitution for or in derogation of the
rights and remedies set forth in the Credit Agreement, the Mortgage and other
Fundamental Documents or conferred by any applicable law. The failure, at any
one or more times, of the Assignee to exercise any right under any covenant or
stipulation herein contained shall not in any way affect this Assignment nor the
rights of the Assignee hereunder, nor operate as a release from any personal
liability of the Assignor under the Credit Agreement and/or the other
Fundamental Documents, nor under any covenant or stipulation therein contained.
16. Miscellaneous. The headings of the sections, paragraphs and
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subdivisions of this Assignment are for the convenience of reference only, are
not to be considered a part hereof and shall not limit or otherwise affect any
of the terms hereof. Whenever in this Assignment one of the parties hereto is
named or referred to, the heirs, legal representatives, successors and assigns
of such party shall be included and all covenants and agreements contained in
this Assignment by or on behalf of Assignor or by or on behalf of Assignee shall
bind and inure to the benefit of their respective heirs, legal representatives,
successors and assigns, whether so expressed or not. Whenever the singular or
plural number, masculine or feminine or neuter gender is used herein, it shall
equally include the other. No change, amendment, modification, abridgement,
cancellation or discharge hereof or of any part hereof, shall be valid unless
consented in writing by Assignee.
17. Conflict. In case of any conflict or inconsistency between any
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provision of this Assignment and the Credit Agreement, the provisions of the
Credit Agreement shall control.
[Signature Page Follows]
10
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
as of the day and year first above written.
VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Ventas, Inc., a Delaware corporation,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: EVP
BANK OF AMERICA, N.A., a national banking
association, as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Principal
Done at New York, New York this 17th day of April, 2002.
In the Presence Of: Ventas Realty, Limited Partnership, Mortgagor
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------- -----------------------------------------
Witness , duly authorized agent
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STATE OF NEW YORK )
)
) ss.:
COUNTY OF NEW YORK )
At New York, New York on this 17th day of April, 2002, personally
appeared before me ▇▇▇▇ ▇▇▇▇▇▇▇▇, EVP and duly authorized agent of the above
named Mortgagor who executed the foregoing instrument before me and declared
the same to be his/her free act and deed and the free act and deed of the above
named Mortgagor.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Notary Public
A Notary residing in NY County, NY
[Notary Seal]
Done at New York, New York this 17th day of April, 2002.
In the Presence Of: Bank of America, N.A., as Administrative Agent
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------- -----------------------------------------
Witness , duly authorized agent
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
At New York , New York on this 17th day of April, 2002, personally appeared
before me ▇▇▇▇▇ ▇▇▇▇▇▇, Principal and duly authorized agent of the above named
Administrative Agent who executed the foregoing instrument before me and
declared the same to be his/her free act and deed and the free act and deed of
the above named Administrative Agent.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Notary Public
A Notary residing in NY County, NY
Prepared By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇ PLLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇