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EXHIBIT 10.6
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Escrow No. 1999-16269 TD COPY has not been compared
Order No. 1999-16269 RB with the Original Document. WCP.
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ASSIGNMENT OF RENTS AND LEASES
A. FITZGERALDS RENO, INC., a Nevada corporation ("Assignor") whose
address for notice hereunder is 000 X. Xxxxxx Xxxxxx, Xxxxx 0000, Xxxx, Xxxxxx
00000, by Deed of Trust and Security Agreement of even date herewith
(hereinafter the "Deed of Trust"), mortgaged to SCOUT DEVELOPMENT CORPORATION, a
Missouri corporation, as mortgagee ("Assignee"), whose address for notice is
0000 Xxxxx Xxxxxxx, Xxxxx, Xxxxxxxx 00000, the property (the "Property") more
fully described on Exhibit A, attached hereto and made a part hereof for all
purposes.
B. The Deed of Trust was given to secure the payment of a promissory
note in the original principal amount of $2,250,000.00 of even date herewith,
executed by Assignor and payable to Assignee in one-hundred twenty (120)
consecutive monthly installments commencing one (1) month from the date thereof
(the "Note"). The Deed of Trust and the Note are incorporated herein by
reference for all purposes.
C. Assignor, as lessor has acquired the Property subject to certain
leases and intends to enter into leases in the future in connection with the
improvements located on the Property (the "Leases").
NOW, THEREFORE, for value received, Assignor hereby absolutely and
unconditionally assigns and transfers to Assignee (i) all rents, revenues and
any other income of the Property, including those now due, or to become due by
virtue of the Leases, or any other agreement for the occupancy or use of all or
any part of the Property, regardless of the party to whom the rents and revenues
of the Property are payable; and (ii) all the Leases and any other agreements
for the use or occupancy of all or any part of the Property, including any and
all extensions, renewals and replacement thereof. All Leases, other agreements
for use or occupancy, and all extensions, renewals and replacements thereof, and
all future leases and other agreements for use or occupancy, extensions,
renewals and replacements thereof, are hereby incorporated to be included in all
references to "Leases" herein.
This assignment and agreement shall be under the following terms and
conditions:
1. Until the Note, and all renewals, rearrangements and extensions
thereof, are paid in full, or, until the Property is released by Assignee as
security for the Note, Assignor shall transfer, sell and assign, and hereby
transfers, sells and assigns, unto Assignee all subsequent leases of the
Property, or any part thereof.
2. Assignor acknowledges that this assignment in no way affects or
alters the Note and Deed of Trust. Assignor hereby agrees to make or cause to be
made:
(a) all payments of principal and interest on the Note and any
amendments, extensions or renewals thereof,
(b) payment of all other sums, with interest thereon, becoming due and
payable to Assignee under the provisions of this Assignment, the Note, the
Deed of Trust or in any other instrument executed by Assignor in connection
with the Note; and
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(c) punctual performance and discharge of each and every obligation,
covenant and agreement contained in the Note, the Deed of Trust or in any
other instrument executed by Assignor in connection with the Note.
3. Assignor warrants and represents that Assignor has not previously
assigned the Leases or the rents and revenues of the Property, or executed any
other instrument which would interfere with or in any manner prevent Assignee
from obtaining the full benefits of the provisions of this Assignment.
4. Assignor hereby authorizes Assignee or Assignee's agents to collect
the rents and revenues from the Property and hereby directs each tenant of the
Leases to pay such rents and revenues to Assignee or Assignee's agents;
provided, however, so long as there shall exist no default by Assignor in the
payment of the Note, or in the performance of any obligation, covenant or
agreement contained herein, in the Note, the Deed of Trust, or in any other
instrument executed by Assignor in connection with the Note, Assignor shall have
the right to collect and receive as trustee for the benefit of Assignee all
rents and revenues arising under the Leases or from the Property and to apply
the rents and revenues so collected to the sums secured by the Deed of Trust,
with the balance, so long as no such default exists, to the account of Assignor;
it being the intention of Assignor and Assignee that this Agreement constitutes
an absolute assignment and not an assignment for additional security only, but
is an assignment intended as a pro tanto payment of the Note and all other
indebtedness secured by the lien of the Deed of Trust.
5. Assignor covenants and agrees with Assignee:
(a) not to collect any of the rent, income and profits from the
Property more than one month in advance of the time that the same shall
become due under the provisions of the Lease (other than for security
deposits made under the Leases);
(b) not to execute any other assignment of the rents, income or
profits arising or accruing from the Leases or the property,
(c) to assign and transfer to the Assignee any and all other leases
entered into after the date of this Assignment upon all or any part of the
Property and to execute and deliver, at the request of the Assignee, all
such further assignments in the premises as the Assignee shall from time to
time require.
(d) that if any act shall be done by the Assignor in breach of the
foregoing, then such act shall be null and void and without force or effect
unless specifically agreed to in writing by the Assignee.
6. Upon or at any time after default by the Assignor in the payment of
the principal and interest on the Note, in the performance of any obligation,
covenant or agreement contained herein, in the Note, the Deed of Trust, or in
any other instrument executed by the Assignor in connection with the Note,
Assignor's right to collect and receive as trustee for the benefit of Assignee
all rents and revenues arising under the Leases shall terminate without notice
to Assignor. Further, the Assignee may, but is not obligated or required at its
option, without notice and without regard to the adequacy of the security for
the Note, either in person or by agent, with or without bringing any action or
proceeding, or by a receiver appointed by a court take possession of the
Property and hold, manage, lease and
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operate the same on such terms and for such period of time as Assignee may deem
proper. Additionally, Assignee may demand, xxx for or otherwise collect and
receive all rents, income and revenues of the Property, including those past due
and unpaid, without taking possession of the Property, Assignee shall also have
full power to make, from time to time, all alterations, renovations, repairs or
replacements to the Property as may seem proper to Assignee, and to apply such
rents, income and profits to the payment of:
a) all expenses of managing the Property, including, without
limitation, the salaries, fees, and wages of a managing agent and such
other employees as Assignee may deem necessary or desirable, and all
expenses of operating and maintaining the Property, including all taxes
charges, claims, assessments, and any other liens, and premiums for all
insurance which the Assignee may deem necessary or desirable, the cost
of all alterations, renovations, repairs or replacements, and all
expenses incident to taking and regaining possession of the Property,
and
(b) the principal and interest on the Note, together with all costs and
attorneys' fees incurred by Assignee in enforcing Assignor's
obligations hereunder, under the Note, the Deed of Trust, or in any
other instrument executed by Assignor in connection with the Note, all
in such order of priority as to any of the items mentioned in this
paragraph as the Assignee in its sole discretion may determine.
No credit shall be given by Assignee for any sum or sums received from
the rents, income and revenues of the Property until the money collected is
actually received by Assignee; and no credits shall be given for any uncollected
rents or other uncollected amounts or bills nor shall credit on any
indebtedness; secured by the lien of the Deed of Trust be given for any rents,
income and revenues derived from the Property after Assignee obtains title to
the Property by foreclosure, order of a court or by operation of law or
otherwise. The exercise by Assignee of the option granted in this paragraph to
take possession of the Property, and Assignee's collection of the rents, income
and revenues and the application thereof as herein provided shall not be
considered a waiver of any default by Assignor under the Note, Deed of Trust,
this Assignment or any other instrument executed by Assignor in connection with
the Note.
7. Assignee shall not be liable for any loss sustained by Assignor
resulting from Assignee's failure to let the Property or portions thereof after
default or from any other act or omission of Assignee in managing the Property
after default unless such loss is caused by the willful misconduct and bad faith
of Assignee. Furthermore, it is understood that Assignee shall not be obligated
to assume, perform or discharge nor does Assignee undertake to assume, perform
or discharge, any obligation, duty or liability of Assignor under Leases it
being agreed that Assignee shall be treated as agreeing to assume, perform or
discharge such obligations, duty or liability only if:
(a) Assignee shall, by written notice sent to the tenants
named in the Leases, specifically so elect; or
(b) Assignee shall foreclose judicially or under the Deed of
Trust and take possession of the Property.
In no event shall Assignee be liable for the performance or discharge
of any obligations not expressly assumed by it, or in any assignment or other
transfer by Assignee of its interests in the Leases or the Property to any other
party. Assignor shall, and hereby agrees to, defend (with counsel
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acceptable to Assignee), indemnify and hold Assignee harmless from and against
any and all liability, low cost, damage or expenses which may be or is incurred
by Assignee under the Leases or under or by reason of this Assignment and from
any and all claims and demands whatsoever which may be asserted against Assignee
or by reason of any alleged obligations or undertakings on the part of Assignee
to perform or discharge any of the terms, covenants or agreements contained in
the Leases, except such obligations or undertakings expressly assumed by
Assignee. If Assignee should incur any such liability, or be subject to any such
claims, all expenses incurred or expended by Assignee in connection therewith
(including attorneys' fees) shall be deemed secured by the Deed of Trust and
Assignor shall reimburse Assignee immediately upon demand. Upon the failure of
Assignor to reimburse Assignee, Assignee may, at its option, declare all sums
evidenced by the Note and secured by the Deed of Trust immediately due and
payable. It is further understood that this Assignment shall not operate to
place responsibility upon Assignee, except as otherwise specifically provided,
for the control, care, management or repair of the Property, nor for the
carrying out of any of the terms and conditions of the Leases nor shall it
operate to make Assignee responsible or liable for any waste committed on the
Property by any tenant thereof or any other parties, 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 or stranger.
8. In the event there shall have been made payment in full of the
principal and interest on the Note or any other indebtedness secured by the lien
of the Deed of Trust, and Assignor shall make, or cause to have been made, full
performance of all of Assignor's obligations under the Deed of Trust, this
Assignment, and all other instruments executed by Assignor in connection with
the Note, then this Assignment shall become and be void and of no further force
or effect. An affidavit, certificate, letter or statement of any officer, agent
or attorney of Assignee indicating that any part of the principal or interest on
the Note remains unpaid or that Assignor's obligations remain unperformed shall
be conclusive evidence of the continuing validity and effectiveness of this
Agreement and any person may, and is authorized to, rely thereon.
9. Assignor authorizes and directs the tenants named in the Leases,
upon receipt from Assignee of written notice to the effect that (i) Assignee is
then the holder of the Note, Deed of Trust and this Assignment, and (ii) that a
default exists under any of the provisions of one or all of such instruments, to
pay over to Assignee all rents, income and revenues arising or accruing under
the Leases and to continue to do so until otherwise notified by Assignee.
Assignor agrees that (i) any tenant or occupant of the Property shall have the
right to rely upon notice by Assignee without obligation or right to inquire as
to whether default actually exists; and (ii) Assignor shall have no right or
claim against any such tenant or occupant for any such rents paid by any tenant
or occupant to Assignee following receipt of such notice.
10. Nothing contained in this Assignment and no act done or omitted by
Assignee pursuant to the powers and rights granted it hereunder shall be deemed
to be a waiver by Assignee of its rights and remedies under the Note, Deed of
Trust or under any other instrument executed by Assignor in connection with the
Note, and this Assignment is made and accepted without prejudice to any of the
rights and remedies possessed by Assignee under the terms of any instrument
executed by Assignor in connection with the Note. The collection and application
of the rents, income and revenues from the Property to the Note, or as otherwise
provided above, shall not constitute a waiver by Assignee of any default which
might at the time of such application or thereafter exist under any documents
executed by Assignor in connection with the Note. The Note may be accelerated in
accordance with its terms, notwithstanding the application of rents, income and
revenues.
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11. In the event of foreclosure of the Deed of Trust by sale or
otherwise, Assignee is authorized (i) to sell Assignor's interest in the Leases
as lessor together with the Property; or (ii) to assign the same without the
Property, or (iii) to assign the some without consideration to the purchaser at
any such sale or to any other claimant to title to the Property by virtue of
foreclosure of the lien of the Deed of Trust. There shall be no liability to
account to Assignor for any rents, revenues, income or profits accruing after
the foreclosure of the Deed of Trust.
12. Assignor agrees to execute and deliver to Assignee such further
instruments and documents as, from time to time during the existence of this
Assignment, Assignee may reasonably require in order to perfect the interest and
rights of Assignee under this Assignment.
13. No remedy or right conferred upon Assignee by operation of law, by
this Assignment, the Note, the Deed of Trust or by any other instrument
executed by Assignor in connection with the Note is intended to be, nor shall it
be, inclusive of any other right or remedy, but each and every remedy or right
shall be cumulative and shall be in addition to every other remedy or right
conferred upon Assignor and each and every such remedy or right may be pursued
by Assignee in such manner and order, together or separately, and at such times
as Assignee may elect.
14. If any term or provision 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
or provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Assignment shall be valid and be enforced to the fullest
extent permitted by law.
15. Notice provided for in this Agreement must be in writing, and shall
be given or served, unless otherwise expressly provided herein, by depositing
the same in the United States Mail, postpaid and certified and addressed to the
party to be notified, with return receipt requested, or by delivering the sum by
courier or in person to such party (or, if the party or parties to be notified
be incorporated, to an officer of such party), or by prepaid telegram addressed
to the party to be notified. Notice deposited in the mail, postpaid and
certified with return receipt requested, shall be deemed received upon deposit
in a proper United States mail depository. Notice given in any other manner
shall be effective only if and when received by the party to be notified. For
the purposes of notice, the addresses of the parties are as stated in paragraph
A of this Assignment. The parties and their respective successors and assigns
shall have the right from time to time and at any time, to change their
respective addresses and agents for the receipt of notice and shall have the
right to specify as their respective addresses and agents any other by giving at
least ten (10) days prior written notice to the other party.
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EXECUTED this the 31st day of January 2000, effective the 1st day of
February, 2000.
FITZGERALDS RENO, INC., a Nevada corporation
By: /s/ XXXXXXX X. XXXXXXXXX
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Name: Xxxxxxx X. XxXxxxxxx
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Title: Executive Vice President/CFO
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STATE OF NEVADA
COUNTY OF WASHOE
This instrument was acknowledged before me on the 31st day of January,
2000, by Xxxxxxx X. XxXxxxxxx, Executive Vice President and Chief Financial
Officer of FITZGERALDS RENO, INC. a Nevada corporation, for and on behalf of
said Nevada corporation.
(SEAL) /s/ XXXXXX XXXXXXX
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Notary Public, State of Nevada
[NOTARY STAMP]
After Recording Return to:
Xxxx X. Xxxxx
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
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EXHIBIT "A"
DESCRIPTION
All that certain lot, piece or parcel of land situate in the County of Washoe,
State of Nevada, described as follows:
PARCEL 1: (ADJUSTED PARCEL A)
A parcel of land situated within the NE 1/4 of Section 11, T19N, R19E, M.D.M.,
Reno, Washoe County, Nevada, being all of "Adjusted Parcel A" as shown on the
Record of Survey showing a boundary line adjustment for Union Pacific Railroad
Company, Scout Development Corporation, and G and S Investment Company, as
recorded on January 26, 2000 in the official records of Washoe County, Nevada,
File No. 2417487 and being further described as follows:
Beginning at the Northeast corner of Parcel A of Parcel Map Xx. 0000, Xxxx Xx.
0000000 of the Official Records of Washoe County, Nevada; thence S
13(degree)48'25"E, 105.50 feet along the Easterly line of said Parcel A; thence
S 76(degree)10'00"W, 300.64 feet; thence N 13(degree)47'50"W, 105.67 feet along
the Westerly line of said Parcel to the Northwest corner of said Parcel A;
thence N 76(degree)11'59"E, 300.62 feet along the Northerly line of said Parcel
A, to the Point of Beginning.
The above described parcel contains an area of approximately 31,743 sq ft.
BASIS OF BEARINGS: Parcel Map No. 2461 for Southern Pacific Transportation
Company, File No. 1422392 of the Official Records of Washoe County, Nevada.
PARCEL 2: (ADJUSTED PARCEL B)
A parcel consisting of air rights situated within the NE 1/4 of Section 11,
T19N, R19E, M.D.M., Reno, Washoe County, Nevada, being all of "Adjusted Parcel
B" as shown on the Record of Survey showing a boundary line adjustment for
Union Pacific Railroad Company, Scout Development Corporation, and G and S
Investment Company, as recorded on January 26, 2000 in the official records of
Washoe County, Nevada, File No. 2417487 and being further described as follows:
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Parcel 2 Legal Continued
Beginning at a point on the Easterly line of Parcel A of Parcel Map Xx. 0000,
Xxxx Xx. 0000000 of the Official Records of Washoe County, Nevada; from which
the Northeast corner of said Parcel A bears N 13(degree)48'25"W, 105.50 feet
said point of beginning having an elevation of 4522.50 feet; thence S
13(degree)48'25"E, 53.65 feet said point having an elevation of 4522.50 feet;
thence S 76(degree)10'00"W, 300.65 feet said point having an elevation of 4525.1
feet; thence N 13(degree)47'50"W, 53.65 feet said point having an elevation of
4525.1 feet, thence N 76(degree)10'00" E, 300.64 feet to the Point Beginning.
Said surface shall be formed such that it maintains a constant slope between the
elevations described for the four corners.
The above described land parcel (above which the air rights are situated)
contains an area of approximately 16,130 sq.ft.
EXCEPTING THEREFROM a parcel of land situated within the NE 1/4 of Section 11,
T19N, R19E, M.D.M., Reno, Washoe County, Nevada, and being all that real
property located below a surface which has vertices defined as follows:
Beginning at a point on the Easterly line of Parcel A of Parcel Map Xx. 0000,
Xxxx Xx. 0000000 of the Official Records of Washoe County, Nevada; from which
the Northeast corner of said Parcel A bears N 13(degree)48'25"W, 106.30 feet
said point of beginning having an elevation of 4524.00 feet; thence S
13(degree)48'25"E, 52.05 feet said point having an elevation of 4524.00 feet;
thence S 76(degree)10'00"W, 300.65 feet said point having an elevation of 4526.6
feet; thence N 13(degree)47'50"W, 52.05 feet said point having an elevation of
4526.6 feet; thence N 76(degree)10'00"E, 300.64 feet to the Point of Beginning.
Said surface shall be formed such that it maintains a constant slope between the
elevations described for the four corners.
BASIS OF BEARINGS: Parcel Map No. 2461 for Southern Pacific Transportation
Company, File No. 1422392 of the Official Records of Washoe County, Nevada.
BASIS OF ELEVATIONS: City Reno benchmark No. 96, a nail and washer located in
the top of the curb at the Northeast corner of East Fourth Street and North
Center Street, Elevation = 4496.46 feet.
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PARCEL 3: (ADJUSTED PARCEL C)
A parcel of land situated within the NE 1/4 of Section 11, T19N, R19E, M.D.M.,
Reno, Washoe County, Nevada, being all of "Adjusted Parcel C" as shown on the
Record of Survey showing a boundary line adjustment for Union Pacific Railroad
Company, Scout Development Corporation, and G and S Investment Company, as
recorded on January 26, 2000 in the official records of Washoe County, Nevada,
File No. 2417487 and being further described as follows:
Beginning at the Southeast corner of Parcel C of Parcel Map Xx. 0000, Xxxx Xx.
0000000 of the Official Records of Washoe County, Nevada; thence S
76(degree)10'00"W, 300.65 feet along the Southerly line of said Parcel C; thence
N 13(degree)47'50"W, 20.82 feet; thence N 76(degree)10'00"E, 300.65 feet; thence
S 13(degree)48'25"E, 20.82 feet to the Point of Beginning.
The above described parcel contains an area of approximately 6,260 sq. ft.
BASIS OF BEARINGS: Parcel Map No. 2461 for Southern Pacific Transportation
Company, File No. 1422392 of the Official Records of Washoe County, Nevada.
PARCEL 4:
All buildings and improvements located on the real property described in Parcels
1 through 3 above.
[STAMP]
