Exhibit 10.2
THIS DOCUMENT WAS DRAFTED BY,
AND AFTER RECORDING, RETURN TO:
DeWitt Ross & Stevens S.C.
Paul A. Croake, Esq.
2 East Mifflin Street, Suite 600
Madison, WI 53703
608/283-5623
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT, made as of the 12th day of March, 2012, byDC-2775 NORTHWOODS PARKWAY, LLC, a Delaware limited liability company, whose principal office is located at c/o John E. Carter, 4211 West Boy Scout Blvd., Suite 500, Tampa, FL 33607 (“Borrower”), toAMERICAN FAMILY LIFE INSURANCE COMPANY, an insurance corporation organized and existing under the laws of the State of Wisconsin, whose address is Investment Division, 6000 American Parkway, Madison, Wisconsin 53783-0001 (“American Family”).
FOR VALUE RECEIVED, Borrowergrants, transfers and assigns toAmerican Family: (a) all of the right, title and interest ofBorrowerin and to any and all leases and any other agreements granting a possessory interest in the real property described in Exhibit A attached hereto (the “Premises”), together with any amendments or addenda to such leases and agreements and including any guarantees of such agreements, now or hereafter entered into, whether oral or written, (each such lease and related agreements and guarantees shall be referred to collectively hereafter as a “Lease”); (b) any and all extensions and renewals thereof; (c) the immediate and continuing right to collect and receive all rents, expense reimbursements or other income, payments and profits arising out of anyLease or out of thePremises or any part thereof (“Rents”); (d) the right to all proceeds payable toBorrowerpursuant to any purchase options, if any, on the part of anyTenant under anyLease; and (e) all payments derived from anyLease including but not limited to claims for the recovery of damages done to thePremises or for the abatement of any nuisance existing thereon, claims for damages resulting from default under anyLease whether resulting from acts of insolvency or acts of bankruptcy or otherwise, and lump sum payments for the cancellation of anyLease or the waiver of any obligation or term thereof prior to the expiration date, and the return of any insurance premiums or ad valorem tax payments made in advance and subsequently refunded, all for the purpose of securing the following:
(i) Payment of theIndebtedness evidenced by theNote, including any extensions or renewals thereof, in the principal sum of Three Million Three Hundred Thousand and No/100 Dollars ($3,300,000.00) dated of even date herewith, executed and delivered byBorrower payable to the order ofAmerican Family secured,inter alia, by the Deed to Secure Debt, Assignment of Rents and Security Agreement, dated of even date herewith, granted byBorrowertoAmerican Family upon thePremises, and recorded in the County of Gwinnett, State of Georgia (the “Security Deed”) and the otherLoan Documents securing theNote.
(ii) Payment of all other sums with interest thereon becoming due and payable toAmerican Family as a result of thisAssignment, or pursuant to any otherLoan Documents. All payments required under theLoan Documents shall be included asIndebtedness secured hereby.
(iii) Performance and discharge of each and every obligation, covenant and agreement ofBorrowerunder theLoan Documents.
BORROWERFURTHER COVENANTS, AGREES AND ASSIGNS AS FOLLOWS:
1.Performance of Leases. (a) To faithfully abide by, perform and discharge each and every material obligation, covenant and agreement of theAccredited Lease byBorrower, as landlord, to be performed; (b) to use its reasonable efforts to enforce or secure the performance of each and every material obligation, covenant, condition and agreement of anyLease to be performed byTenant; (c) not to surrender, cancel, amend, modify, extend, renew, terminate, accept a surrender of, or in any way alter the terms of theAccredited Lease without the prior written consent ofAmerican Family, which consent shall not be unreasonably withheld, conditioned or delayed; (d) not to borrow against, pledge, or assign any rentals due under theAccredited Lease, nor consent to a subordination or assignment of the interest of theAccredited Tenantthereunder to any party other thanAmerican Family; (e) not to permit the prepayment of the rents thereunder for more than one (1) month in advance or reduce the amount of the rents and other payments thereunder; (f) not to waive, excuse, condone or in any manner release or discharge theAccredited Tenant under theAccredited Lease of or from their obligations, covenants, conditions and agreements to be performed byAccredited Tenant under theAccredited Lease without first securing the prior written consent ofAmerican Family, which consent shall not be unreasonably withheld, conditioned or delayed; (g) not to enter into any additional or renewalLease of all or any part of thePremises except in conformity with the terms of theSecurity Deed.
In the event theAccredited Tenant of thePremises seeks for any reason to buy out or financially satisfy theAccredited Lease in whole or in part prior to normal expiration of theAccredited Lease, and obtains permission fromBorrowerandAmerican Family to do so, all such proceeds shall, at the sole discretion ofAmerican Family, be applied to theIndebtedness in the order determined byAmerican Family in its sole discretion.
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2.Protection of Security.Borrower, at its sole cost and expense, agrees to appear in and defend any action or proceeding arising under, growing out of or in any manner connected or otherwise associated with anyLease or the obligations, duties or liabilities ofBorrowerthereunder, and to pay all costs and expenses ofAmerican Family, including attorneys’ and paralegals’ fees and costs, in any such actions or proceedings in whichAmerican Family in its sole discretion may appear.
3.Present Assignment. ThisAssignment shall constitute a perfected, present assignment, provided thatBorrowershall have the right to collect, but not prior to accrual, all of theRents and to retain, use and enjoy the same unless and until anEvent of Default shall occur under anyLoan Document and any applicable opportunity to cure under theSecurity Deed shall have expired. Following the occurrence of anEvent of Defaultand the expiration of any applicable opportunity to cure,Borrowerhereby releases and surrenders toAmerican Family all rights to amend, modify or to in any way alter anyLease, and to take such action without the prior consent ofBorrower.
4.Remedies. Upon or at any time during the continuance of anEvent of Default, or if any material representation or warranty herein proves to be untrue, and after any applicable opportunity to cure under theSecurity Deed shall have expired, thenAmerican Family, without regard to waste, adequacy of the security or solvency ofBorrower, may declare allIndebtedness immediately due and payable, may revoke the privilege grantedBorrowerhereunder to collect theRents, and may, atAmerican Family’s option, either:
(a) In person or by agent, with or without taking possession of or entering thePremises, with or without bringing any action or proceeding, give, or requireBorrowerto give, notice to anyTenant under anyLease authorizing and directing suchTenant to pay allRents directly toAmerican Family; collect all of theRents; enforce the payment thereof and exercise all of the rights ofBorrowerunder anyLease and all of the rights ofAmerican Family hereunder; and may enter upon, take possession of, manage and operate thePremises, or any part thereof; may cancel, enforce or modify anyLease, and fix or modifyRents, and do any acts whichAmerican Family deems proper to protect the security hereof; or
(b) Apply for appointment of a receiver in accordance with applicable statutes and law, to which receivershipBorrowerhereby consents, who shall collect theRents; manage thePremises so as to prevent waste; execute anyLease within or beyond the period of receivership; exercise the remedies and perform the terms of thisAssignment and apply theRents as hereinafter provided. The terms and provisions contained in Section 6.3 of theSecurity Deed are hereby incorporated by reference and shall govern the appointment of a receiver under thisAssignment.
AnyRents collected pursuant to the terms of this Section hereof shall be applied in the following order: (a) to payment of all fees of any receiver appointed hereunder; (b) to payment when due of prior or currentImpositions or, if theSecurity Deed so requires, to the
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periodic escrow for payment of theImpositions when due; (c) to payment when due ofInsurance Premiums of the type required by theSecurity Deed or, if theSecurity Deed so requires, to the periodic escrow for the payment ofInsurance Premiums when due; (d) to payment of the costs and expenses of operation and management of thePremises and collection of theRents, including reasonable attorneys’ fees; (e) to payment of all costs and expenses for normal maintenance of thePremises, including suchTenant improvements, capital repairs, capital improvements and leasing commissions asAmerican Family may reasonably deem appropriate; and (f) to the performance of the landlord’s obligations under anyLease. AnyRents remaining after application of the above items shall be applied to theIndebtedness on a monthly basis.
The entering upon and taking possession of suchPremises, the appointment of a receiver, or the collection of suchRents and the application thereof as herein provided shall not cure or waive any default or waive, modify or affect notice of default under theSecurity Deed or invalidate any act done pursuant to said notice, nor in any way operate to preventAmerican Family from pursuing any remedy which now or hereafter it may have under the terms and conditions of theSecurity Deed or theNote secured thereby or any otherLoan Documents securing the same.
5.No Liability for American Family.American Family shall not be obligated to perform or discharge, nor does it undertake to perform or discharge, any obligation, duty or liability under anyLease nor shall thisAssignment operate to place any responsibility for the control, care, management or repair of thePremises or responsibility for the collection ofRents uponAmerican Family or for the carrying out of any of the terms and conditions of anyLease; nor shall it operate to makeAmerican Family responsible or liable for any waste committed on thePremises, or for any dangerous or defective condition of thePremises resulting in loss or injury or death to anyTenant, licensee, employee or stranger.American Family shall be required to account only for such moneys as are actually received by it and shall not be obliged to pay any interest onRents received by it under thisAssignment.
6.Borrower to Hold American Family Harmless.Borroweragrees to indemnify and to holdAmerican Family harmless from any and all liability, loss or damage whichAmerican Family incurs under anyLease or under or by reason of thisAssignment, and from any and all claims and demands whatsoever which may be asserted againstAmerican Family by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants or agreements contained in anyLease, except this indemnity shall not apply to any liability to the extent caused by the gross negligence or willful misconduct ofAmerican Familyor first arising from and after the date that American Family or another party takes possession of the Premises or acquires title to the Premises through foreclosure or a deed in lieu of foreclosure. ShouldAmerican Family incur any such liability, or incur costs in the defense of any such claims or demands, the amount thereof, including costs, expenses, and reasonable attorneys’ and paralegals’ fees and costs, shall be secured hereby and shall be added to theIndebtednessandBorrowershall immediately reimburseAmerican Familytherefor upon demand, exceptAmerican Family shall bear its own costs of defense for any liabilities to the extent caused byAmerican Family’sgross negligence or willful misconduct. The continuing failure ofBorrowerso to do shall constitute anEvent of Default.
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7.Security Deposits.Borroweragrees, upon demand following anEvent of Defaultand the expiration of any applicable opportunity to cure under theSecurity Deed, to transfer toAmerican Family all security deposits, if any, held byBorrowerunder the terms and provisions of anyLease.Borroweragrees that such security deposits may be held byAmerican Family without any allowance for interest thereon, except statutory interest accruing to the benefit of anyTenant, and shall become the absolute property ofAmerican Family upon an occurrence of anEvent of Defaultand the expiration of any applicable opportunity to cure under theSecurity Deed, subject to any rights of any suchTenant. Such security deposits in the event of a default by anyTenant, shall be applied in accordance with the provisions of any suchLease. UntilAmerican Family makes such demand and the deposits are paid over toAmerican Family,American Family assumes no responsibility to anyTenant for any such security deposit.Borroweragrees to immediately reimburseAmerican Family, upon request, for any security deposits received byBorrower and not remitted toAmerican Family, which are paid to anyTenant ofBorrowerbyAmerican Family.
8.Authorization to Tenants. EachTenant under anyLease is irrevocably authorized and directed to recognize the claims ofAmerican Family or any receiver appointed hereunder without investigating the reason for any action taken byAmerican Family, or such receiver, or the validity or the amount ofIndebtedness owing toAmerican Family, or the existence of any default under or by reason of any of theLoan Documents or the application to be made byAmerican Family or any receiver. Upon the occurrence of anEvent of Defaultand the expiration of any applicable opportunity to cure under theSecurity Deed,Borrowerirrevocably directs and authorizes each suchTenant to pay toAmerican Family or such receiver all sums due under anyLease without the necessity of a judicial determination that a default has occurred under any of theLoan Documents or thatAmerican Family is entitled to exercise its rights hereunder. Upon the occurrence of anEvent of Defaultand the expiration of any applicable opportunity to cure under theSecurity Deed,Borrowerirrevocably directs and authorizes each suchTenant to pay toAmerican Family all sums due under anyLease. To the extent such sums are paid toAmerican Family,Borroweragrees that each suchTenant shall have no further liability toBorrowerfor the same. The sole signature ofAmerican Family or such receiver shall be sufficient for the exercise of any rights under thisAssignment. The sole receipt ofAmerican Family or of such receiver for any sums received shall be a full discharge and release therefor to any suchTenant or occupants of thePremises. Checks for all or any part of theRents collected under thisAssignment shall, upon notice fromAmerican Family or such receiver, be drawn payable to the exclusive order ofAmerican Family or such receiver.
9.Satisfaction. Upon payment in full of allIndebtedness as evidenced by a recorded release of theSecurity Deed executed byAmerican Family, or its subsequent assigns, thisAssignment shall, without the need for any further satisfaction or release, become null and void and be of no further effect.
10.American Family Creditor of Tenant. Upon anEvent of Defaultand the expiration of any applicable opportunity to cure under theSecurity Deed,Borroweragrees thatAmerican Family, and notBorrower, shall be and be deemed to be a creditor of anyTenant with respect to assignments for the benefit of creditors, bankruptcy, reorganization,
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insolvency, dissolution, or receivership proceedings affecting suchTenant, (without obligation on the part ofAmerican Family, however, to file or make timely filings of claims in such proceedings or otherwise to pursue creditor’s rights therein, and reserving the right toBorrowerto make such filing in such event) with an option toAmerican Family to apply any money received byAmerican Family as such creditor in reduction of theIndebtedness in the order determined byAmerican Family in its sole discretion.
11.American Family Attorney-in-Fact. Upon anEvent of Defaultand the expiration of any applicable opportunity to cure under theSecurity Deed,Borrower irrevocably appointsAmerican Family, its successors and assigns, as its agent and attorney-in-fact, which appointment is coupled with an interest, to: (a) exercise any rights or remedies hereunder and to execute and deliver during the term of thisAssignment such instruments asAmerican Family may deem necessary to make thisAssignment and any further assignment effective and absolute; and (b) demand, receive, and enforce payment, to give receipts, releases and satisfactions, and to sue, either in the name ofBorrower or in the name ofAmerican Family, for allRents or other sums payable under theLease.
12.Subsequent Leases; Rent Roll. Until theIndebtedness is paid in full,Borrower shall deliver toAmerican Family executed copies of any and all other and futureLeases and agrees to make, execute and deliver untoAmerican Family, upon demand, and at any time or times, any and all assignments and other instruments sufficient to assign theLeases and theRentsthereunder toAmerican Family or thatAmerican Family may deem advisable for carrying out the true purposes and intent of thisAssignment.Borroweragrees to furnish toAmerican Family by April 30th following each calendar year when thePremises is not fully occupied by Tenant, a certified rent roll of thePremises dated as of the end of such calendar year disclosing currentTenants, tenancies,Leases,Lease income and such other matters asAmerican Family may reasonably request. Such rent roll, or accompanying documentation, shall additionally identify space which is not leased and shall certify that theLeases are free of defaults by Borrower, and to Borrower’s knowledge, by Tenants (or if a default exists, the nature of such default).
13.Recourse.American Family shall have full recourse for payment ofIndebtedness evidenced by theNote to theLeases andRents assigned hereunder and to all other assets ofBorrower. Notwithstanding anything to the contrary contained in thisAssignment, the liability ofBorrower for theIndebtedness and for the performance of other agreements, covenants and obligations contained herein shall be limited as set forth in theNote.
14.General Assignment of Leases and Rents. The rights contained in thisAssignment are in addition to and shall be cumulative with the rights given and created in Article 2 of theSecurity Deed, assigning generally allLeases, rents and profits of thePremises and shall in no way limit the rights created thereunder.
15.No Mortgagee or Beneficiary in Possession. Nothing herein contained and no actions taken pursuant to thisAssignment shall be construed as constitutingAmerican Family a “‘Mortgagee’ or ‘Beneficiary’ in Possession”, unlessAmerican Family assumes actual possession of thePremises.
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16.Continuing Rights. The rights and powers ofAmerican Family or any receiver hereunder shall continue and remain in full force and effect until allIndebtedness is paid in full or released in writing byAmerican Family.
17.Successors and Assigns. ThisAssignment and each and every covenant, agreement and provision hereof shall be binding uponBorrower, its successors and assigns including without limitation each and every record owner of thePremises, from time to time, or any other person having an interest therein and shall inure to the benefit of American Family, its successors and assigns. As used herein the words “successors and assigns” shall also be deemed to mean the heirs, executors, representatives and administrators of any natural person who is a party to thisAssignment.
18.Governing Law.BorrowerandAmerican Family agree, notwithstanding any conflict of law principles, that thisAssignment is intended to and shall be governed by the internal laws of the State of Georgia.
19.Validity Clause. It is the intent of thisAssignment to confer untoAmerican Family the rights and benefits hereunder to the full extent allowable by law. The unenforceability or invalidity of any provision or provisions hereof shall not render any other provision or provisions of thisAssignment unenforceable or invalid. Any provisions found to be unenforceable shall be severable from thisAssignment.
20.Notices. Any notice which any party hereto may desire or may be required to give to any other party shall be in writing and the mailing thereof by certified mail, or its equivalent, to the respective party’s address as set forth above or to such other place as such party may by notice in writing designate as its address, shall constitute service of notice.
21.Defined Terms. All terms used in thisAssignment which appear inboldface type and are not defined herein, shall have the meaning ascribed to such term or terms in theSecurity Deed.
22.Costs of Enforcement. To the extent permitted by law,Borroweragrees to payAmerican Family its reasonable attorneys’ and paralegals’ fees and costs, including all fees and costs incurred in litigation, mediation, arbitration, bankruptcy and administrative proceedings, and appeals therefrom, and all court costs and otherRecoverable Costs, incurred byAmerican Family in the exercise of any right or remedy available to it under thisAssignment, whether or not suit is commenced. Whenever reference is made to the payment of “attorneys’ fees,” “reasonable attorneys’ fees” or words of similar import in this Assignment, the same shall mean and refer to the payment of actual attorneys’ fees incurred based upon the attorney’s normal hourly rate and the number of hours worked, and not the statutory attorneys’ fees defined in O.C.G.A. Section 13-1-11
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IN WITNESS WHEREOF, Borrowerhas caused thisAssignmentto be executed as the authorized deed and voluntary act of saidBorrower as of the date first above written.
| | | | | | | | | | |
| | | | DC-2775 NORTHWOODS PARKWAY, LLC, |
| | | | a Delaware limited liability company |
| Signed, sealed and delivered in the presence of: | | | | |
| | | | By: | | Carter Validus Operating Partnership, LP, |
| | | | | | a Delaware limited partnership, its manager |
/s/ Elizabeth Fay | | | | |
Elizabeth Fay | | | | | | By: | | Carter Validus Mission Critical |
| Unofficial Witness | | | | | | | | REIT, Inc., a Maryland corporation, |
| | | | | | | | its general partner |
/s/ April Tutor | | | | |
| Notary Public | | | | | | | | By: | | /s/ John E. Carter |
| My commission expires: October 20, 2013 | | | | | | | | | | John E. Carter, |
| | | | | | | | | | Chief Executive Officer |
| | |
| STATE OF FLORIDA | | ) |
| | ) ss. |
| COUNTY OF HILLSBOROUGH | | ) |
1. This instrument was acknowledged before me this 13th day of March, 2012, by John E. Carter, Chief Executive Officer of Carter Validus Mission Critical REIT, Inc., general partner of Carter Validus Operating Partnership, L.P., manager of DC-2775 Northwoods Parkway, LLC, a Delaware limited liability company, to me known to be the person who executed the foregoing instrument by virtue of the authority vested in him in such capacity and acknowledged that he executed the same as the voluntary act and authorized deed of the limited liability company.
| | |
/s/ April Tutor |
| Notary Public, State of | | Florida |
| My commission expires: | | October 20, 2013 |
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EXHIBIT A
LEGAL DESCRIPTION
All that tract or parcel of land containing 3.222 acres lying and being in Land Lot 256 of the 6th District of Gwinnett County, Georgia, and being more fully described as follows:
Beginning at a concrete monument found at the Southerly end of a miter of the right-of-way intersection of the Northeasterly right-of-way of Langford Road, a right-of-way of varying widths (at this point being a 100 foot right-of-way), with the Southeasterly right-of-way of Northwoods Parkway, a right-of-way of varying widths; thence along said right-of-way and miter North 06°07’42” East a distance of 19.41 feet to a 1/2 inch rebar pin found on said Southeasterly right-of-way of Northwoods Parkway; thence along said right-of-way of Northwoods Parkway North 49°24’00” East a distance of 69.97 feet to a point; thence continuing along said right-of-way along a curve to the left having a radius of 507.47 feet an arc distance of 62.44 feet (said arc being subtended by a chord bearing North 45°52’30” East a distance of 62.40 feet) to a point; thence continuing along said right-of-way North 42°21’00” East a distance of 65.55 feet to a point; thence continuing along said right-of-way along a curve to the right having a radius of 447.46 feet an arc distance of 108.07 feet (said arc being subtended by a chord bearing North 49°16’00” East a distance of 107.81 feet) to a point; thence continuing along said right-of-way North 56°11’15” East a distance of 250.36 feet to a point; thence continuing along said right-of-way along a curve to the left having a radius of 600.00 feet an arc distance of 172.43 feet (said arc being subtended by a chord bearing North 51°22’45” East a distance of 171.84 feet) to a point; thence continuing along said right-of-way North 39°57’45” East a distance of 16.73 feet to a nail found and the TRUE POINT OF BEGINNING.
From the TRUE POINT OF BEGINNING thus established thence continuing along said right-of-way North 39°57’45” East a distance of 359.64 feet to a 1/2 inch rebar pin found; thence leaving said right-of-way South 40°35’30” East a distance of 425.22 feet to a 5/8 inch rebar pin found on the Northwesterly right-of-way of a 200 foot right-of-way of Southern Railroad; thence along said Railroad right-of-way South 49°24’30” West a distance of 354.54 feet to a 1/2 inch rebar pin found; thence leaving said right-of-way North 40°37’32” West a distance of 366.20 feet to a nail found on aforesaid Southeasterly right-of-way of Northwoods Parkway and the TRUE POINT OF BEGINNING.
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