EX-10.5






THIS INSTRUMENT PREPARED BY AND WHEN RECORDED, RETURN TO:



Lea Ann T. Groesser, Esq.


Brownstein Hyatt & Farber, P.C. 410 17th Street, Suite
2200


Denver, Colorado 80202



1



ASSIGNMENT OF LEASES AND RENTS

Loan No. 949951




THIS ASSIGNMENT OF LEASES AND RENTS (this “Assignment”) made by HRMED, LLC, a Colorado
limited liability company (“Assignor”), whose address is do Gibbons-White Incorporated,
2305 Canyon Boulevard, Suite 200, Boulder, Colorado 80302, to and in favor of COLUMN FINANCIAL,
INC., a Delaware corporation (“Assignee”), whose address is 11 Madison Avenue,
5th Floor, New York, New York 10010, Attn: Edmund Taylor.



WITNES SETH:




THAT, WHEREAS, Assignor has executed a certain Promissory Note (the “Note”) dated of even
date herewith, payable to the order of Assignee in the stated principal amount of FOUR MILLION
NINE HUNDRED SIXTY EIGHT THOUSAND SEVEN HUNDRED FIFTY AND NO/100 DOLLARS ($4,968,750.00); and



WHEREAS, the Note is secured by, among other things, that certain Deed of Trust and Security
Agreement (the “Mortgage”) dated of even date herewith, by Assignor as Grantor, to the
Public Trustee in and for Douglas County, Colorado, for the benefit of Assignee, as Beneficiary,
encumbering that certain real property situated in the County of Douglas, State of Colorado, as
more particularly described on Exhibit A attached hereto and incorporated herein by this
reference, and all buildings and other improvements now or hereafter located thereon
(collectively, the “Improvements”) (said real property and the Improvements are
hereinafter sometimes collectively referred to as the “Property”); and



WHEREAS, Assignor is desirous of further securing to Assignee the performance of the
terms, covenants and agreements hereof and of the Note, the Mortgage and each other document and
agreement evidencing, securing, guaranteeing or otherwise relating to the indebtedness evidenced by
the Note (the Note, the Mortgage and such other documents and agreements, as each of the foregoing
may from time to time be amended, consolidated, renewed or replaced, being collectively referred to
herein as the “Loan Documents”).



NOW, THEREFORE, in consideration of the making of the loan evidenced by the Note by Assignee
to Assignor and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Assignor does hereby presently irrevocably, absolutely and unconditionally
transfer, sell, assign, grant, pledge and convey to Assignee, its successors and assigns, all of
the right, title and interest of Assignor in and to:




(a) any and all leases, licenses, rental agreements and occupancy agreements of whatever



form now or hereafter affecting all or any part of the Property (including but not limited to that
certain Rent Credit Agreement between Centura Health Corporation and Assignor with respect to
certain payments to be made to Assignor pertaining to certain vacant premises located within the
Property) and any and all guarantees, extensions, renewals, replacements and modifications thereof
(collectively, the “Leases”); and




(b) all deposits (whether for security or otherwise), rents, issues, profits, revenues,



royalties, accounts, rights, benefits and income of every nature arising from the possession, use,
enjoyment or operation of the Property, including, without limitation, minimum rents, additional
rents, termination payments, forfeited security deposits, liquidated damages following default and
all proceeds payable under any policy of insurance covering loss of rents resulting from
untenantability due to destruction or damage to the Property, together with the immediate and
continuing right to collect and receive the same, whether now due or hereafter becoming due, and
together with all rights and claims of any kind that Assignor may have against any tenant, lessee
or licensee under the Leases or against any other occupant of the Property (collectively, the
“Rents”).




TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns.



IT IS AGREED that, notwithstanding that this instrument is a present, absolute irrevocable
and unconditional assignment of the Rents and of the Leases and a present, absolute irrevocable
and unconditional grant of the powers herein granted to Assignee, Assignor is hereby permitted, at
the sufferance of Assignee and at its discretion, and is hereby granted a license by Assignee, to
retain possession of the Leases and to collect and retain the Rents unless and until there shall
be a default under the terms of any .of the Loan Documents, which default has not been cured
within any applicable grace or cure period. In the event of such uncured default, the
aforementioned license granted to Assignor shall automatically terminate without notice to
Assignor, and Assignee may thereafter, without taking possession of the Property, demand, collect
(by suit or otherwise), receive and give valid and sufficient receipts for any and all of the
Rents or take possession of the Leases, for which purpose Assignor does hereby irrevocably make,
constitute and appoint Assignee its attorney-in-fact with full power to appoint substitutes or a
trustee to accomplish such purpose (which



power of attorney shall be irrevocable so long as any portion of the Loan is outstanding,
shall be deemed to be coupled with an interest, shall survive the voluntary or involuntary
dissolution of Assignor and shall not be affected by any disability or incapacity suffered by
Assignor subsequent to the date hereof). Further, from and after such termination, Assignor shall
be the agent of Assignee in collection of the Rents, and any Rents so collected by Assignor shall
be held in trust by Assignor for the sole and exclusive benefit of Assignee, and Assignor shall,
within one (1) business day after receipt of any Rents, pay the same to Assignee to be applied by
Assignee as hereinafter set forth. Furthermore, from and after such uncured default and termination
of the aforementioned license, Assignee shall have the right and authority, without any notice
whatsoever to Assignor and without regard to the adequacy of the security therefor, to: (a) manage
and operate the Property, with full power to employ agents to manage the same; (b) demand, collect,
receive and sue for the Rents, including those past due and unpaid; and (c) do all acts relating to
such management of the Property, including, but not limited to, negotiation of new Leases, making
adjustments of existing Leases, contracting and paying for repairs and replacements to the
Improvements and to the fixtures, equipment and personal property located in the Improvements or
used in any way in the operation, use and occupancy of the Property as in the sole subjective
judgment and discretion of Assignee may be necessary to maintain the same in a tenantable
condition, purchasing and paying for such additional furniture and equipment as in the sole
subjective judgment of Assignee may be necessary to maintain a proper rental income from the
Property, employing necessary managers and other employees, purchasing fuel, providing utilities
and paying for all other expenses incurred in the operation of the Property, maintaining adequate
insurance coverage over hazards customarily insured against and paying the premiums therefor.
Assignee may apply the Rents received by Assignee from the Property, after deducting the reasonable
costs of collection thereof, including, without limitation, reasonable attorneys’ fees and a
reasonable management fee for any management agent so employed, against amounts expended for
repairs, upkeep, maintenance, service, fuel, utilities, taxes, assessments, insurance premiums and
such other expenses as Assignee incurs in connection with the operation of the Property and against
interest, principal, required escrow deposits and other sums which have or which shall become due,
from time to time, under the terms of the Loan Documents, in such order or priority as to any of
the items so mentioned as Assignee, in its sole subjective discretion, may determine. The exercise
        .by Assignee of the rights granted Assignee in this paragraph, and the collection of the Rents and
the application thereof as herein provided, shall not be considered a waiver by Assignee of any
default under the Loan Documents or prevent foreclosure of any liens on the Property nor shall such
exercise make Assignee liable under any of the Leases, Assignee hereby expressly reserving all of
its rights and privileges under the Mortgage and the other Loan Documents as fully as though this
Assignment had not been entered into.



Without limiting the rights granted hereinabove, in the event Assignor shall fail to make any
payment or to perform any act required under the terms hereof and such failure shall not be cured
within any applicable grace or cure period, then Assignee may, but shall not be obligated to,
without prior notice to or demand on Assignor, and without releasing Assignor from any obligation
hereof, make or perform the same in such manner and to such extent as Assignee may deem necessary
to protect the security hereof, including specifically, without limitation, appearing in and
defending any action or proceeding purporting to affect the security hereof or the rights or
powers of Assignee, performing or discharging any obligation, covenant or agreement of Assignor
under any of the Leases, and, in exercising any of such powers, paying all necessary costs and
expenses, employing



counsel and incurring and paying reasonable attorneys’ fees. Any sum advanced or paid by
Assignee for any such purpose, including, without limitation, reasonable attorneys’ fees, together
with interest thereon at the Default Interest Rate (as defined in the Note) from the date paid or
advanced by Assignee until repaid by Assignor, shall immediately be due and payable to Assignee by
Assignor on demand and shall be secured by the Mortgage and by all of the other Loan Documents
securing all or any part of the indebtedness evidenced by the Note.



IT IS FURTHER AGREED that this Assignment is made upon the following terms, covenants and
conditions:




1. This Assignment shall not operate to place responsibility for the control, care,



management or repair of the Property upon Assignee, nor for the performance of any of the terms
and conditions of any of the Leases, nor shall it operate to make Assignee responsible or liable
for any waste committed on the Property by the tenants or 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. Assignee shall not be liable for any loss sustained by Assignor resulting
from Assignee’s failure or inability to collect Rents, proceeds or other payments, or to let the
Property or from any other act or omission of Assignee in managing the Property, except for any
acts arising from Assignee’s gross negligence or willful misconduct. ASSIGNOR SHALL AND DOES
HEREBY INDEMNIFY AND HOLD ASSIGNEE HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY, LOSS, CLAIM,
DEMAND OR DAMAGE WHICH MAY OR MIGHT BE INCURRED BY REASON OF THIS ASSIGNMENT, INCLUDING, WITHOUT
LIMITATION, CLAIMS OR DEMANDS FOR SECURITY DEPOSITS FROM TENANTS OF SPACE IN THE IMPROVEMENTS
DEPOSITED WITH ASSIGNOR, AND FROM AND AGAINST 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 ANY OF THE LEASES
EXCEPT TO THE EXTENT ARISING OUT OF ASSIGNEE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. SHOULD
ASSIGNEE INCUR ANY LIABILITY BY REASON OF THIS ASSIGNMENT OR IN DEFENSE OF ANY CLAIM OR DEMAND FOR
LOSS OR DAMAGE AS PROVIDED ABOVE, THE AMOUNT THEREOF, INCLUDING, WITHOUT LIMITATION, COSTS,
EXPENSES. AND ATTORNEYS’ FEES, TOGETHER WITH INTEREST THEREOF AT THE DEFAULT INTEREST RATE FROM
THE DATE PAID OR INCURRED BY ASSIGNEE UNTIL REPAID BY ASSIGNOR, SHALL BE IMMEDIATELY DUE AND
PAYABLE TO ASSIGNEE BY ASSIGNOR UPON DEMAND AND SHALL BE SECURED BY THE MORTGAGE AND BY ALL OF THE
OTHER LOAN DOCUMENTS SECURING ALL OR ANY PART OF THE INDEBTEDNESS EVIDENCED BY THE NOTE.




2. This Assignment shall not be construed as making Assignee a mortgagee in



possession.




3. Assignee is obligated to account to Assignor only for such Rents as are actually



collected or received by Assignee.


4. 7150\39\726539.3 5




Assignor hereby further presently and absolutely assigns to Assignee, subject to the



terms and provisions of this Assignment: (a) any award or other payment which Assignor may
hereafter become entitled to receive with respect to any of the Leases as a result of or pursuant
to any bankruptcy, insolvency or reorganization or similar proceedings involving the tenants under
such Leases; and (b) any and all payments made by or on behalf of any tenant of any part of the
Property in lieu of Rent. Assignor hereby irrevocably appoints Assignee as its attorney-in-fact
to, from and after the occurrence of a default by Assignor hereunder or under any of the other
Loan Documents which has not been cured within any applicable grace or cure period, appear in any
such proceeding and to collect any such award or payment, which power of attorney is coupled with
an interest by virtue of this Assignment and is irrevocable so long as any sums are outstanding
under the loan evidenced by the Note.




5. Assignor represents, warrants and covenants to and for the benefit of Assignee: (a)



that Assignor now is (or with respect to any Leases not yet in existence, will be immediately upon
the execution thereof) the absolute owner of the landlord’s interest in the Leases, with full
right and title to assign the same and the Rents due or to become due thereunder; (b) that, other
than this Assignment and those assignments, if any, specifically permitted in the Mortgage, there
are no outstanding assignments of the Leases or Rents; (c) that no Rents have been anticipated,
discounted, released, waived, compromised or otherwise discharged, except for prepayment of rent
of not more than one (1) month prior to the accrual thereof; (d) that to the best of Assignor’s
present, actual knowledge there are no material defaults now existing under any of the Leases by
the landlord or tenant, 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 by the landlord or
tenant, except as disclosed in writing to Assignee; (e) that Assignor has and shall duly and
punctually observe and perform all covenants, conditions and agreements in the Leaks on the part
of the landlord to be observed and performed thereunder, and (f) the Leases are in full force and
effect and are the valid and binding obligations of Assignor, and, to the knowledge of Assignor,
are the valid and binding obligations of the tenants thereto.




6. Assignor covenants and agrees that Assignor shall not, without the prior written



consent of Assignee: (a) exclusive of security deposits, accept any payment of Rent or
installments of Rent for more than one (1) month in advance; (b) enter into any Lease having a
term of less than six (6) months; (c) except as may be expressly permitted by the terms of
Section 1.12 of the Mortgage, cancel or terminate any Lease (other than for non-payment of
Rent or any other material default thereunder) or amend or modify any Lease; (d) except as may be
expressly permitted by the terms of  Section 1.12 of the Mortgage, take or omit to take
any action or exercise any right or option which would permit the tenant under any Lease to cancel
or terminate said Lease; (e) except as may be expressly permitted by the terms of Section
1.12 of the Mortgage, anticipate, discount, release, waive, compromise or otherwise discharge
any Rents payable or other obligations under the Leases; (f) further pledge, transfer, mortgage or
otherwise encumber or assign the Leases or future payments of Rents except as otherwise expressly
permitted by the terms of the Mortgage or incur any material indebtedness, liability or other
obligation to any tenant, lessee or licensee under the Leases; or (g) permit any Lease to become
subordinate to any lien other than the lien of the Mortgage.




7. Assignor covenants and agrees that Assignor shall, at its sole cost and expense,
appear



in and defend any action or proceeding arising under, growing out of, or in any manner connected
with the Leases or the obligations, duties or liabilities of the landlord or tenant thereunder, and
shall pay on demand all reasonable costs and expenses, including, without limitation, reasonable
attorneys’ fees, which Assignee may incur in connection with Assignee’s appearance, voluntary or
otherwise, in any such action or proceeding, together with interest thereon at the Default Interest
Rate from the date incurred by Assignee until repaid by Assignor.




8. At any time, Assignee may, at its option, notify any tenants or other parties of the



existence of this Assignment. Assignor does hereby specifically authorize, instruct and direct each
and every present and future tenant, lessee and licensee of the whole or any part of the Property
to pay all unpaid and future Rents to Assignee upon receipt of demand from Assignee to so pay the
same (which demand Assignee shall not make unless there shall be a default under the terms of any
of the Loan Documents, which has not been cured within any applicable grace or cure period), and
Assignor hereby agrees that each such present and future tenant, lessee and licensee may rely upon
such written demand from Assignee to so pay said Rents without any inquiry into whether there
exists a default hereunder or under the other Loan Documents or whether Assignee is otherwise
entitled to said Rents. Assignor hereby waives any right, claim or demand which Assignor may now or
hereafter have against any present or future tenant, lessee or licensee by reason of such payment
of Rents to Assignee, and any such payment shall discharge such tenant’s, lessee’s or licensee’s
obligation to make such payment to Assignor.




9. Assignee may take or release any security for the indebtedness evidenced by the Note,



may release any party primarily or secondarily liable for the indebtedness evidenced by the Note,
may grant extensions, renewals or indulgences with respect to the indebtedness evidenced by the
Note and may apply any other security therefor held by it to the satisfaction of any indebtedness
evidenced by the Note without prejudice to any of its rights hereunder or under any of the Loan
Documents.




10. The acceptance of this Assignment and the collection of the Rents in the event



Assignor’s license is terminated, as referred to above, shall be without prejudice to Assignee.
The rights of Assignee hereunder are cumulative and concurrent, may be pursued separately,
successively or together and may be exercised as often as occasion therefor shall arise, it being
agreed by Assignor that the exercise of any one or more of the rights provided for herein shall
not be construed as a waiver of any of the other rights or remedies of Assignee, at law or in
equity or otherwise, so long as any obligation under the Loan Documents remains unsatisfied.




11. All rights of Assignee hereunder shall inure to the benefit of its successors and



assigns; and all obligations of Assignor shall bind its successors and assigns and any subsequent
owner of the Property. All rights of Assignee in, to and under this Assignment shall pass to and
may be exercised by any assignee of such rights of Assignee. Assignor hereby agrees that if
Assignee gives notice to Assignor of an assignment of said rights, upon such notice the liability
of Assignor to the assignee of the Assignee shall be immediate and absolute. Assignor will not set
up any claim against Assignee or any intervening assignee as a defense, counterclaim or set-off to
any action



brought by Assignee or any intervening assignee for any amounts due hereunder or for
possession of or the exercise of rights with respect to the Leases or the Rents.




12. It shall be a default hereunder (a) if any representation or warranty made herein by



Assignor is determined by Assignee to have been false or misleading in any material respect at the
time made, or (b) upon any failure by Assignor to comply with the provisions of  Section 6
above, or (c) upon any failure by Assignor in the performance or observance of any other covenant
or condition hereof and, to the extent such failure described in this subsection (c) is
susceptible of being cured, the continuance of such failure for thirty (30) days after written
notice thereof from Assignee to Assignor; provided, however, that if such default is
susceptible of cure but such cure cannot be accomplished with reasonable diligence within said
period of time, and if Assignor commences to cure such default promptly after receipt of notice
thereof from Assignee, and thereafter prosecutes the curing of such default with reasonable
diligence, such period of time shall be extended for such period of time as may be necessary to
cure such default with reasonable diligence, but not to exceed an additional sixty (60) days. Any
such default not so cured shall be a default under each of the other Loan Documents, entitling
Assignee to exercise any or all rights and remedies available to Assignee under the terms hereof
or of any or all of the other Loan Documents, and any default under any other Loan Document which
is not cured within any applicable grace or cure period shall be deemed a default hereunder
subject to no grace or cure period, entitling Assignee to exercise any or all rights provided for
herein.




13. Failure by Assignee to exercise any right which it may have hereunder shall not be



deemed a waiver thereof unless so agreed in writing by Assignee, and the waiver by Assignee of any
default hereunder shall not constitute a continuing waiver or a waiver of any other default or of
the same default on any future occasion. No collection by Assignee of any Rents pursuant to this
Assignment shall constitute or result in a waiver of any default then existing hereunder or under
any of the other Loan Documents.




14. If any provision under this Assignment or the application thereof to any entity, person



or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this
Assignment and the application of the provisions hereof to other entities, persons or
circumstances shall not be affected thereby and shall be enforced to the fullest extent permitted
by law.




15. This Assignment may not be amended, modified or otherwise changed except by a



written instrument duly executed by Assignor and Assignee.




16. This Assignment shall be in full force and effect continuously from the date hereof to



and until the Mortgage shall be released of record, and the release of the Mortgage shall, for all
purposes, automatically terminate this Assignment and render this Assignment null and void and of
no effect whatsoever.




17. All notices, demands, requests or other communications to be sent by one party to the



other hereunder or required by law shall be given and become effective as provided in the
Mortgage.



18. THIS ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF COLORADO, EXCEPT TO THE EXTENT THAT ANY OF SUCH LAWS MAY NOW OR HEREAFTER BE
PREEMPTED BY FEDERAL LAW, IN WHICH CASE SUCH FEDERAL LAW SHALL SO GOVERN AND BE CONTROLLING; AND
PROVIDED FURTHER THAT THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED SHALL GOVERN AS TO
THE CREATION, PRIORITY AND ENFORCEMENT OF LIENS AND SECURITY INTERESTS IN PROPERTY LOCATED IN SUCH
STATE.



19. This Assignment may be executed in any number of counterparts, each of which shall



be effective only upon delivery and thereafter shall be deemed an original, and all of which shall
be taken to be one and the same instrument, for the same effect as if all parties hereto had
signed the same signature page. Any signature page of this Assignment may be detached from any
counterpart of this Assignment without impairing the legal effect of any signatures thereon and
may be attached to another counterpart of this Assignment identical in form hereto but having
attached to it one or more additional signature pages.



20. In addition to, but not in lieu of, any other rights hereunder, Assignee shall have the



right to institute suit and obtain a protective or mandatory injunction against Assignor to
prevent a breach or default, or to enforce the observance, of the agreements, covenants, terms and
conditions contained herein, as well as the right to damages occasioned by any breach or default
by Assignor.



21. This Assignment shall continue and remain in full force and effect during any period



of foreclosure or redemption with respect to the Property.




22. Assignor hereby covenants and agrees that Assignee shall be entitled to all of the



rights, remedies and benefits available by statute, at law, in equity or as a matter of practice
for the enforcement and perfection of the intents and purposes hereof. Assignee shall, as a matter
of absolute right, be entitled, upon ex        parte application to a court of applicable
jurisdiction, to the appointment of a receiver to obtain and secure the rights of Assignee
hereunder and the benefits intended to be provided to Assignee hereunder.




23. Notwithstanding anything to the contrary contained in this Assignment, the liability of



Assignor, and its general partners, if any, or its members, if any, for the indebtedness secured
hereby and for the performance of the other agreements, covenants and obligations contained herein
and in the Loan Documents shall be limited as set forth in Section 1.5 of the Note.



IN WITNESS WHEREOF, Assignor has executed this Assignment on October 17, 2002
but to be effective as of October 18, 2002.



ASSIGNOR:



HRMED, LLC, a Colorado limited liability company



By: Neil Littmann

Name: Neil Littmann

Title: Manager




	 	 	 
	STATE OF COLORADO

COUNTY OF BOULDER

	 	§

§

§






This instrument was acknowledged before me on this 17th day of October, 2002, by Neil
Littmann, as Manager of HRMED, LLC, a Colorado limited liability company on behalf of said company.



Given under my hand and seal of office the day and year last above written.



/s/ Kenneth Diamond


Kenneth Diamond


My Commission Expires: May 18, 2005