ASSIGNMENT OF LEASES, RENTS AND PROFITS
THIS ASSIGNMENT OF LEASES, RENTS AND PROFITS (hereinafter referred to as
"Assignment") is executed and delivered this 15th day of November, 1995, by
PLAINVIEW APARTMENTS, L.P., a South Carolina limited partnership, having its
principal office at c/o IFGP Corporation, One Insignia Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 (hereinafter referred to as "Assignor"), to
and in favor of (i) NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation
("Nationwide") having its principal office at Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxx Xxxxxx, Xxxx 00000, Attention: Real Estate Investments, its successors
and assigns, and (ii) WEST COAST LIFE INSURANCE COMPANY, a California
corporation, ("West Coast"), whose address is c/o Nationwide Life Insurance
Company, Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx Xxxxxx, Xxxx 00000, Attention:
Real Estate Investments, its successors and assigns, (Nationwide and West Coast
shall be sometimes hereinafter collectively referred to as "Assignee");
W I T N E S S E T H:
WHEREAS, Assignor is the present owner in fee simple of certain real
property located in Louisville, Jefferson County, Kentucky, more particularly
described on Exhibit A attached hereto and by this reference made a part hereof
(hereinafter referred to as the "Real Property"); and
WHEREAS, Assignee is the owner and holder of a certain mortgage, security
agreement and fixture financing statement of even date herewith (hereinafter
referred to as the "Mortgage") encumbering the Real Property and other property
more specifically described in the Mortgage (all of which property is referred
to herein and in the Mortgage as the "Property"), which Mortgage secures the
payment of (i) that certain Promissory Note A ("Note A") of even date herewith
in the amount of SIX MILLION SIX HUNDRED THOUSAND DOLLARS ($6,600,000.00) made
by NTS-Plainview Associates, a Kentucky limited partnership ("NTS") as Maker,
and payable to Nationwide, as Holder and (ii) that certain Promissory Note B
("Note B") of even date herewith in the amount of SEVEN HUNDRED FIFTY THOUSAND
DOLLARS ($750,000.00) made by NTS as Maker, and payable to West Coast, as Holder
(Note A and Note B shall be hereinafter collectively referred to as the "Note");
and
WHEREAS, the Note shall be due and payable no later than November 15,
2010; and
WHEREAS, the Recitals in the Mortgage are incorporated herein by
reference; and
WHEREAS, Assignee, as a condition to making the aforesaid loan and to
obtain additional security therefor, has required the execution of this
Assignment by Assignor; and
NOW THEREFORE, in order to further secure the payment of the indebtedness
evidenced by the Note, and secured by the Mortgage, and for other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Assignor does hereby sell, assign, transfer and set over unto Assignee all of
the leases, rents, issues, profits and income of, from or pertaining to the
Property. This Assignment shall include any and all leases or rental agreements
that may now be in effect, as well as any future or additional leases or rental
agreements, and any renewals or extensions of the same, that may be entered into
by Assignor. Assignor hereby agrees to execute and deliver such further
assignments of said leases or rental agreements as Assignee may from time to
time request.
This Assignment is absolute and effective immediately and without
possession. Notwithstanding the foregoing, Assignor shall have a license to
receive, collect and enjoy the rents, issues, profits and income accruing from
the Property until a default has occurred under the Note, the Mortgage or any
other instrument evidencing or securing the Note. Upon the occurrence of a
default, the license shall cease automatically, without need of notice,
possession, foreclosure or any other act or procedure, and all leases, rents,
issues, profits and income assigned hereby shall thereafter be payable to
Assignee.
PROVIDED ALWAYS that if NTS or Assignor shall pay unto Assignee the
indebtedness evidenced by the Note, and if NTS and Assignor shall duly, promptly
and fully perform, discharge, execute, effect, complete, comply with and abide
by each of their respective agreements, conditions and covenants contained in
the Note, the Mortgage, this Assignment and all other instruments executed by
NTS or Assignor to and in favor of Assignee as further evidence of or as
additional security for the indebtedness (hereinafter together referred to as
the "Loan Documents"), then this Assignment and the estates and interests hereby
granted and created shall terminate.
REPRESENTATIONS AND WARRANTIES OF ASSIGNOR
1. In furtherance of the foregoing assignment, Assignor:
A. Represents and warrants that it is the owner in fee simple of
the Property and has good title to the leases, rents, income, issues, and
profits hereby assigned and good right to assign the same, and that no other
person, entity, firm or corporation has any right, title or interest therein;
that Assignor has not previously sold, assigned, transferred, mortgaged or
pledged said rents, issues, profits, income and leases of the Property; and that
payment of any of the same has not otherwise been anticipated, waived, released,
discounted, set off or otherwise discharged or compromised.
B. Except as provided in the Mortgage, Assignee agrees and
warrants that, without the prior written consent of Assignee, the terms of any
and all leases will not be amended, altered, modified or changed in any manner
whatsoever, nor will they be surrendered or canceled, nor will any proceedings
for dispossession or eviction of any lessee under said leases be instituted by
Assignor.
C. Agrees and warrants that no request will be made of any lessee
to pay any rent, and no rent will be accepted by Assignor, for more than one
month in advance of the date such rent becomes due and payable under the terms
of any and all leases, it being agreed between Assignor and Assignee that rent
shall be paid as provided in said leases and not otherwise. The foregoing shall
not prevent Assignor from charging and collecting security deposits from each
tenant leasing space on the Real Property.
D. Authorizes Assignee, by and through its employees or agents or
a duly appointed receiver, at its option, after the occurrence of a default
under this Assignment, the Note, the Mortgage or any of the other Loan
Documents, to enter upon the Property and to collect, in the name of Assignor,
as its lawful attorney, or in its own name as Assignee, any rents, income or
profits accrued but unpaid and/or in arrears at the date of such default, as
well as the rents, income or profits thereafter accruing and becoming payable
during the period of the continuance of the said default or any other default.
To this end, Assignor further agrees that it will cooperate with and facilitate,
in all reasonable ways, Assignee's collection of said rents, income or profits
and will, upon request by Assignee, execute a written notice to each tenant,
occupant or licensee directing said tenant, occupant or licensee to pay directly
to Assignee all income, rents and profits due and payable under said leases;
provided, however, that Assignee may notify said tenant, occupant or licensee of
the effectiveness of this Assignment without giving notice to Assignor or
requesting Assignor to give such notice or join in such notice.
E. Authorizes Assignee, upon such entry, at its option, to take
over and assume the management, operation and maintenance of the Property and to
perform all acts necessary and proper and to expend such sums out of the income
of the Property as in Assignee's sole discretion may be reasonable or necessary
in connection therewith, in the same manner and to the same extent as Assignor
theretofore might do. Assignor hereby releases all claims against Assignee
arising out of such management, operation and maintenance.
F. Agrees to execute, upon the request of Assignee, any and all
other instruments requested by Assignee to effectuate this Assignment or to
accomplish any other purpose deemed by Assignee to be necessary or appropriate
in connection with this Assignment.
G. Agrees and acknowledges that nothing in this Assignment shall
be construed to limit or restrict in any way the rights and powers granted to
Assignee in the Note, the Mortgage or any of the other Loan Documents. The
collection and application of the rents, issues and profits as described herein
shall not constitute a waiver of any default which might at the time of
application or thereafter exist under the Note, the Mortgage or any of the other
Loan Documents, and the exercise by Assignee of the rights herein provided shall
not prevent Assignee's exercise of any rights provided under the Note, the
Mortgage or any of the other Loan Documents.
ASSIGNEE'S RIGHTS FOLLOWING DEFAULT BY ASSIGNOR
2. Assignee may, after the occurrence of a default as hereinabove
provided, from time to time, appoint and dismiss such agents or employees as
shall be necessary or reasonable for the collection of the rents, issues and
profits derived from the Property and for the proper care and operation of the
Property, and Assignor hereby grants to Assignee the authority to give such
agents or employees so appointed full and irrevocable authority on Assignor's
behalf to manage the Property and to do all acts relating to such management,
including, without limitation, the entry into and execution of new leases in the
name of Assignor or otherwise, the alteration or amendment of existing leases,
the authorization to repair or replace any items necessary in order to maintain
the building or buildings and chattels incidental thereto in good and tenantable
condition, and the effectuation of such alterations or improvements as in the
judgment of Assignee may be reasonable or necessary to maintain or increase the
income from the Property. Assignee shall have the sole control of such agents
or employees, whose remuneration shall be paid out of the rents, issues and
profits as hereinabove provided, at the rate of compensation accepted in the
community wherein the Property is situated.
APPLICATION BY ASSIGNEE OF NET INCOME FROM THE PROPERTY
3. Assignee shall, after payment of all proper charges and expenses
enumerated under Paragraph 2 above, and after retaining sufficient sums to meet
taxes, assessments, utilities and insurance coverages in requisite amounts
(including liability, fire and extended coverage), credit the net income
received by Assignee from the Property, by virtue of this Assignment, to any
amounts due and owing to Assignee by Assignor under and pursuant to the terms of
the Mortgage, but the manner of the application of such net income shall be
determined in the sole discretion of Assignee. Assignee shall make a reasonable
effort to collect rents, income and profits, reserving, however, within its sole
discretion, the right to determine the method of collection and the extent to
which enforcement of the collection of delinquent rents, income and profits
shall be prosecuted. Notwithstanding the foregoing, no such credit shall be
given by Assignee for any sum or sums received from the rents, issues and
profits of the Property until the sums collected are actually received by
Assignee at its principal office as stated above (or at such other place as
Assignee shall designate in writing), and no credit shall be given for any
uncollected rents or other uncollected amounts or bills, nor shall credit be
given for any rents, issues and profits derived from the Property under any
order of court or by operation of law until such amounts are actually received
by Assignee at its principal offices as stated above. The net amount of income
received by Assignee hereunder and applied by Assignee to the amounts due and
owing by NTS or Assignor shall not serve to cure any default under the Note, the
Mortgage or any of the other Loan Documents, nor shall any amounts received by
Assignee hereunder be in full satisfaction of the indebtedness evidenced by the
Note unless such amounts are sufficient to pay such indebtedness in full
(including any prepayment premiums, late payment charges and advancements) in
accordance with the terms of the Note, the Mortgage and the other Loan
Documents.
LIMITATION OF ASSIGNEE'S LIABILITY
4. Assignee shall not be obligated to perform or discharge any
obligation under the leases hereby assigned or under or by reason of this
Assignment, and Assignor hereby agrees to indemnify and hold Assignee harmless
against any and all liability, loss or damage which Assignee might incur under
the leases or under or by reason of this Assignment and of and from any and all
claims and demands whatsoever which may be asserted against Assignee by reason
of any alleged obligation or undertaking on Assignee's part to perform or
discharge any of the terms of such leases, except for claims and demands arising
by reason of Assignee's gross negligence or willful misconduct.
REINSTATEMENT AFTER DEFAULT
5. In the event that NTS or Assignor shall, with the consent of
Assignee, reinstate the indebtedness evidenced by the Note completely in good
standing, having complied with all the terms, covenants and conditions of the
Note, the Mortgage, this Assignment and all of the other Loan Documents, then,
in such event, Assignee shall return possession of the Property to Assignor, and
Assignor shall remain in possession of the Property unless and until another
default occurs under the Note, the Mortgage, this Assignment or any of the other
Loan Documents, at which time Assignee may, at its option, again take possession
of the Property under authority of and pursuant to the terms and provisions of
this Assignment.
TENANT'S NOTIFICATION OF ASSIGNMENT
6. Upon request by Assignee, at any time, Assignor will deliver a
written notice to each of the tenants and lessees of the Property, which notice
shall inform such tenants and lessees of this Assignment and instruct them that
upon receipt of notice by them from Assignee of the existence of a default by
Assignor under the Note, the Mortgage or any of the other Loan Documents, all
rent due thereafter shall be paid directly to Assignee.
SATISFACTION OF MORTGAGE; SATISFACTION OF ASSIGNMENT
7. This Assignment shall remain in full force and effect as long as the
indebtedness evidenced by the Note and secured by the Mortgage remains unpaid in
whole or in part. It is understood and agreed that a complete release or
satisfaction of the aforesaid Mortgage shall operate as a complete release or
satisfaction of all of Assignee's rights and interest hereunder, and that
satisfaction of the Mortgage shall operate to satisfy this Assignment.
EXCULPATION
8. The liability of NTS with respect to the payment of principal and
interest under the Note shall be "non-recourse" and, accordingly, Assignee's
source of satisfaction of the obligations of NTS under the Note and Assignor's
other obligations hereunder and under the other Loan Documents shall be limited
to the Property and Assignee's receipt of the rents, issues and profits from the
Property, and Assignee shall not seek to procure payment out of any other assets
of NTS or Assignor or any person or entity comprising NTS or Assignor, nor to
seek judgment for any sums which are or may be payable under the Note or under
any of the other Loan Documents, as well as any claim or judgment (except as
hereafter provided) for any deficiency remaining after foreclosure of the
Mortgage. Notwithstanding the above, nothing herein contained shall be deemed
to be a release or impairment of the indebtedness evidenced by the Note or the
security therefor intended by the other Loan Documents or be deemed to preclude
Assignee from exercising its rights to foreclose the Mortgage.
Notwithstanding the foregoing, it is expressly understood and agreed
that the aforesaid limitation on liability shall in no way affect or apply to
NTS' or Assignor's continued personal liability for:
A. fraud or misrepresentation made in or in connection with the
Note or any of the other Loan Documents governing, securing or pertaining to the
payment thereof;
B. failure to pay taxes, assessments, charges for labor or
materials or any other charges which may create liens on any portion of the
Property;
C. the misapplication of (i) proceeds of insurance covering any
portion of the Property; or (ii) proceeds of the sale or condemnation of any
portion of the Property; or (iii) rentals held or received by or on behalf of
the Assignor subsequent to the date on which Assignee gives written demand
therefor pursuant to any Loan Document;
D. causing or permitting waste to occur on, in or about the
Property, and failure to maintain the Property, excepting ordinary wear and
tear;
E. loss by fire or casualty to the extent not compensated by
insurance proceeds collected by Assignee;
F. the return to Assignee, of all unearned advance rentals and
security deposits paid by tenants of the Property and not refunded to or
forfeited by such tenants;
G. the return of, or reimbursement for, all Fixtures and Personal
Property owned by Assignor taken from the Property by or on behalf of Assignor
out of the ordinary course of business, and not replaced by personalty of equal
or greater value than the original value of the Fixtures and Personal Property
so removed;
H. any and all costs incurred in order to cause the Property to
comply with the Accessibility Laws, and (ii) any indemnity or other agreement to
hold Mortgagee harmless from and against any and all losses, liabilities,
damages, injuries, costs or expenses of any kind arising under Paragraph 3 of
the Mortgage regarding accessibility for the disabled or handicapped, or under
the separate Accessibility Indemnity Agreement of even date herewith executed by
Assignor;
I. all court costs and Reasonable Attorneys' Fees actually
incurred which are provided for in the Note or in any other Loan Document; and
J. (i) the removal of any chemical, material or substance,
exposure to which is prohibited, limited or regulated by any Federal, State,
County, Regional or Local Authority which may or could pose a hazard to the
health and safety of the occupants of the Property regardless of the source of
origination; and (ii) the restoration of the Property to comply with all
governmental regulations pertaining to hazardous waste found in, on or under the
Property regardless of the source of origination; and (iii) any indemnity or
other agreement to hold the Assignee harmless from and against any and all
losses, liabilities, damages, injuries, costs, expenses of any and every kind
arising under paragraph 3 of the Mortgage, and/or the Environmental Certificate
and Indemnity Agreement of even date herewith executed by Assignor. Assignor
shall not be liable hereunder if the Property becomes contaminated subsequent to
Assignee's acquisition of the Property by foreclosure or acceptance of a deed in
lieu thereof or subsequent to any transfer of ownership which was approved or
authorized by Assignee pursuant to the Mortgage, provided that such transferee
assumes all obligations pertaining to Hazardous Materials pursuant to the Loan
Documents. Liability under this subparagraph (J) shall extend beyond repayment
of the Note and compliance with the terms of the Mortgage unless at such time
Assignor provides Assignee with an environmental assessment report acceptable to
Assignee showing the Property to be free of Hazardous Materials and not in
violation of Hazardous Waste Laws. The burden of proof under this subparagraph
with regard to establishing the date upon which such chemical, material or
substance was placed or appeared in, on or under the Property shall be upon
Assignor.
K. the return to Assignee of any and all fees paid to Assignor by
tenants of the Property which fees permit tenants to terminate their leases; and
L. obligations under any letter(s) of credit issued at the request of
Assignor and held by NTS, Nationwide and/or West Coast; provided however, this
subparagraph L. shall not apply to letter(s) of credit issued for the benefit of
NTS and shall not obligate Assignor to provide letter(s) of credit to NTS,
Nationwide or West Coast.
The obligations of NTS and Assignor in subparagraphs (A) through (L)
above, except as specifically provided in subparagraphs (H) or (J) shall survive
the repayment of the Note and satisfaction of the Mortgage. Notwithstanding the
foregoing, Assignor shall become personally liable for the entire amount
evidenced hereby, including principal, interest and other charges, in the event
the Assignor violates paragraph 30 or paragraph 31 of the Mortgage.
Assignor has been advised by Assignee that (i) the obligations of NTS
under the Note are "nonrecourse", (ii) the general partners of NTS shall have no
personal liability for, and are exculpated from, all obligations evidenced by
the Note, (iii) the Note contains exceptions to the "exculpation" provision
which are similar to the exceptions set forth in subparagraphs (A) through (J)
above. Assignor acknowledges and agrees that the indebtedness secured by this
Assignment includes, but is not limited to, (a) the obligations of NTS under the
Note, including obligations of NTS arising under any of the exceptions to the
"exculpation" provision and (b) the obligations of Assignor hereunder, including
obligations of Assignor arising under the exceptions to this paragraph 8 as set
forth in subparagraphs (A) through (J) above.
The provisions of this Assignment shall inure to the benefit of Assignee,
its successors and assigns, and shall be binding upon Assignor, its personal
representatives, successors and assigns. The creation of rights and powers
under this Assignment in favor of, or available to, Assignee shall, in no way
whatsoever, be construed to impose concomitant duties or obligations on Assignee
in favor of Assignor except as expressly set forth herein.
As used herein, the phrase "Reasonable Attorneys' Fees" shall mean fees
charged by attorneys selected by Assignee based upon such attorneys' then
prevailing hourly rates as opposed to any statutory presumption specified by any
statute then in effect in the Commonwealth of Kentucky.
This Assignment is executed and delivered as additional security for a
loan transaction negotiated and consummated in Jefferson County, Kentucky and is
to be construed according to the laws of the Commonwealth of Kentucky, and the
laws of the United States.
IN WITNESS WHEREOF, the undersigned has executed this Assignment under
seal as of the day and year first above written.
PLAINVIEW APARTMENTS, L.P., a South Carolina
limited partnership
BY: Davidson III GP Limited Partnership, its
General Partner
BY: Plainview GP, Inc., its General
Partner
BY:/s/Xxxxxx X. Xxxx, Xx.
TITLE:CAO/Controller
COMMONWEALTH OF KENTUCKY )
) SS:
COUNTY OF JEFFERSON )
The foregoing instrument was acknowledged before me this ____ day of
November, 1995, by ______________________, as ___________________ of PLAINVIEW
GP, INC., a _______________ corporation, on behalf of the corporation, as
general partner of DAVIDSON III GP LIMITED PARTNERSHIP, a ____________________
limited partnership, on behalf of the partnership, as general partner of
PLAINVIEW APARTMENTS, L.P., a South Carolina limited partnership, on behalf of
the partnership.
My commission expires:
NOTARY PUBLIC
THIS INSTRUMENT PREPARED BY:
Xxxxxxx X. Xxxxx, Xx., Esq.
Xxxxx X. Xxxxx, Esq.
XXXXXX & XXXXXXXX
0000 Xxxxxxxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
(000) 000-0000
EXHIBIT A
(Insert Legal Description)
