RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
Andrews & Kurth L.L.P.
601 S. Figueroa Street,
Suite 4200
Los Angeles, California 90017
Attention: Gregg J. Loubier
Loan No. 1700020082
Property: Green Valley Mall
Green Valley, Arizona
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS
("Assignment") is made as of September 23, by CONCORD MILESTONE PLUS, L.P., a
Delaware limited partnership ("Assignor"), to WESTCO REAL ESTATE FINANCE CORP.,
a California corporation ("Assignee").
Assignor, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, does hereby GRANT,
SELL, CONVEY, ASSIGN, TRANSFER, SET OVER AND DELIVER to Assignee the entire
lessor's interest in and to all current and future leases and other agreements
affecting the use, enjoyment, or occupancy of all or any part of the Mortgaged
Property (as defined in the Mortgage, which is defined below), which Mortgaged
Property includes that certain lot or piece of land, more particularly described
in Exhibit A annexed hereto and made a part hereof.
TOGETHER WITH all other leases and other
agreements affecting the use, enjoyment or occupancy of any part of the
Mortgaged Property now or hereafter made affecting the Mortgaged Property or any
portion thereof, together with any extensions or renewals of the same (all of
the leases and other agreements described above together with all other present
and future leases and present and future agreements and any extension or renewal
of the same are hereinafter collectively referred to as the "Leases");
TOGETHER WITH all rents, income, issues, revenues
and profits arising from the Leases and renewals thereof and together with all
rents, income, issues and profits from the use, enjoyment and occupancy of the
Mortgaged Property (including, but not limited to, minimum rents, additional
rents, percentage rents, deficiency rents, security deposits and liquidated
damages following default under any Leases, all proceeds payable under any
policy of insurance covering loss of rents resulting from untenantability caused
by damage to any part of the
Mortgaged Property, all of Assignor's rights to recover monetary amounts from
any Lessee (as hereinafter defined) in bankruptcy including, without limitation,
rights of recovery for use and occupancy and damage claims arising out of Lease
defaults, including rejection of a Lease, together with any sums of money that
may now or at any time hereafter be or become due and payable to Assignor by
virtue of any and all royalties, overriding royalties, bonuses, delay rentals
and any other amount of any kind or character arising under any and all present
and all future oil, gas and mining Leases covering the Mortgaged Property or any
part thereof, and all proceeds and other amounts paid or owing to Assignor under
or pursuant to any and all contracts and bonds relating to the construction,
erection or renovation of the Mortgaged Property) (all of the rights described
above hereinafter collectively referred to as the "Rents").
THIS ASSIGNMENT is made to
facilitate:
A. The payment of the Debt as defined in that certain
Note made by Assignor to Assignee, dated the date hereof, in the principal sum
of $5,400,000 (the "Note"), and secured by the Mortgage (as defined in the Note)
covering the Mortgaged Property.
B. The performance and discharge of each and every
obligation, covenant and agreement of Assignor contained herein and in the other
Loan Documents (as defined in the Note).
C. The payment of the Debt as defined in the Arkansas
Note (as defined in the Mortgage).
D. The performance and discharge of each and every
obligation, covenant and agreement of Assignor contained in the Loan Documents
(as defined in the Arkansas Note).
E. The payment of the Debt as defined in the
California Note (as defined in the Mortgage).
F. The performance and discharge of each and every
obligation, covenant and agreement of Assignor contained in the Loan Documents
(as defined in the California Note).
Assignor warrants to Assignee that (a) Assignor is the
sole owner of the entire lessor's interest in the Leases; (b) the Leases are
valid, enforceable and in full force and effect and have not been altered,
modified or amended in any manner whatsoever except as disclosed to Assignee;
(c) neither the Leases nor the Rents reserved in the Leases have been assigned
or otherwise pledged or hypothecated; (d) none of the Rents have been collected
for more than one (1) month in advance; (e) Assignor has full power and
authority to execute and deliver this Assignment and the execution and delivery
of this Assignment has been duly authorized and does not conflict with or
constitute a default under any law, judicial order or other agreement affecting
Assignor or the Mortgaged Property; (f) the premises demised under the Leases
have been completed and Lessees under the Leases have accepted the same and have
taken possession of the
same on a rent-paying basis except as explicitly identified on the certified
rent roll attached to the Closing Certificate dated concurrently herewith
executed by Assignor in favor of Assignee in connection with the Note; and (g)
there exist no offsets or defenses to the payment of any portion of the Rents.
Assignor covenants with Assignee that Assignor
(a) shall observe and perform all the obligations imposed upon the lessor under
the Leases and shall not do or permit to be done anything to impair the value of
the Leases as security for the Debt; (b) shall promptly send to Assignee copies
of all notices of default which Assignor shall receive under the Leases; (c)
shall not collect any Rents more than one (1) month in advance; (d) shall not
execute any other assignment of lessor's interest in the Leases or the Rents;
(e) shall execute and deliver at the request of Assignee all such further
assurances, confirmations and assignments in connection with the Mortgaged
Property as Assignee shall from time to time require; (f) shall not enter into
any new lease of the Mortgaged Property without the prior written consent of
Assignee (unless such new Lease satisfies the Approval Conditions described
below), and in any event, any new Lease shall be on a form of lease approved by
Assignee; (g) shall deliver to Assignee, upon request, subject to tenant lease
requirements, tenant estoppel certificates from each commercial Lessee at the
Mortgaged Property in form and substance reasonably satisfactory to Assignee
(provided, however, that Assignor shall not be required to deliver such
certificates more frequently than two [2] times in any calendar year); and (h)
shall deliver to Assignee, at Assignee's request, executed copies of all Leases
now existing or hereafter arising.
Assignor further covenants with Assignee that, except
to the extent that Assignor is acting in the ordinary course of business as a
prudent operator of property similar to the Mortgaged Property, Assignor (a)
shall promptly send to Assignee copies of all notices of default which Assignor
shall send to Lessees under the Leases; (b) shall enforce all of the terms,
covenants and conditions contained in the Leases upon the part of the Lessees
thereunder to be observed or performed, short of termination thereof; (c) shall
not alter, modify or change the terms of the Leases without the prior written
consent of Assignee, or cancel or terminate the Leases or accept a surrender
thereof or take any other action which would effect a merger of the estates and
rights of, or a termination or diminution of the obligations of, Lessees
thereunder; provided however, that any Lease may be canceled if at the time of
cancellation thereof a new Lease is entered into on substantially the same terms
or more favorable terms as the canceled Lease; (d) shall not alter, modify or
change the terms of any guaranty of any of the Leases or cancel or terminate any
such guaranty without the prior written consent of Assignee; (e) shall not
consent to any assignment of or subletting under the Leases not in accordance
with their terms, without the prior written consent of Assignee; and (f) shall
not waive, release, reduce, discount or otherwise discharge or compromise the
payment of any of the Rents to accrue under the Leases.
Assignor further covenants with Assignee that (a) all
Leases shall be written on the standard form of lease which has been approved by
Assignee; (b) upon request, Assignor shall furnish Assignee with executed copies
of all Leases; (c) no material changes may be made to the Assignee-approved
standard lease without the prior written consent of Assignee; (d) all renewals
of Leases and all proposed Leases shall provide for rental rates comparable to
existing local market rates and shall be arm's-length transactions; (e) all
Leases shall provide that
(i) they are subordinate to the Mortgage and any other indebtedness now or
hereafter secured by the Mortgaged Property, (ii) Lessees agree to attorn to
Assignee (such attornment to be effective upon Assignee's acquisition of title
to the Mortgaged Property), (iii) Lessees agree to execute such further
evidences of attornment as Assignee may from time to time request, (iv) the
attornment of Lessees shall not be terminated by foreclosure, (v) Assignee may,
at Assignee's option, accept or reject such attornment, and (vi) Lessees agree
to furnish, two times in any calendar year, as Assignee may request, a
certificate signed by Lessee confirming and containing such factual
certifications and representations deemed reasonably appropriate by Assignee;
and (f) all new Leases shall be subject to the prior approval of Assignee.
Notwithstanding anything to the contrary contained
herein, and provided that no Event of Default (as defined in the Mortgage) shall
exist and be continuing, the following terms and provisions shall apply (the
"Approval Conditions"):
(a) Assignee's consent shall not be required for modifications of
Leases if (i) the Lease to be modified does not involve more than 6,500
rentable square feet of the Mortgaged Property, (ii) such modifications
(together with all prior modifications of such Lease made without
Assignee's consent) do not materially decrease the obligations of Lessee
nor materially increase the obligations of the lessor, (iii) such
modification (together with all prior modifications of Leases made without
Assignee's consent) will not adversely affect the Mortgaged Property,
Assignee, or Assignor's ability to fulfill its obligations under the Loan
Documents (other than to a de minimis extent), and (iv) the Lease as so
modified meets all criteria that would be required with respect to new
Leases as set forth in subpart (c) below.
(b) Assignee's consent shall not be required for termination of a
Lease if (i) Lessee under such Lease is in default beyond all applicable
notice and grace periods, (ii) the Lease to be terminated does not involve
more than 6,500 rentable square feet of the Mortgaged Property, and (iii)
such termination will not adversely affect the Mortgaged Property,
Assignee, or Assignor's ability to fulfill its obligations under the Loan
Documents (other than to a de minimis extent).
(c) Assignee's consent shall not be required for execution of a new
Lease of space at the Mortgaged Property if (i) such Lease does not involve
more than
6,500 rentable square feet of the Mortgaged Property, (ii) such Lease
will not adversely affect the Mortgaged Property, Assignee, or Assignor's
ability to fulfill its obligations under the Loan Documents, (iii) such
Lease is on the standard form of lease approved by Assignee, (iv) such
Lease is the result of an arms-length transaction and provides for rental
rates comparable to existing market rates, (v) such Lease does not contain
any terms which would materially affect Assignee's rights under this
Assignment or the other Loan Documents, and (vi) the term of such Lease
(including any renewal or extension term) shall be no less than six (6)
months and no more than one (1) year.
THIS ASSIGNMENT is made on the following terms,
covenants and conditions:
1. Present Assignment. Assignor does hereby
absolutely and unconditionally assign to Assignee Assignor's right, title and
interest in all current and future Leases and Rents, it being intended by
Assignor that this assignment constitute a present, absolute assignment and not
an assignment for additional security only. Such assignment to Assignee shall
not be construed to bind Assignee to the performance of any of the covenants,
conditions, or provisions contained in any of the Leases or otherwise to impose
any obligation upon Assignee. Assignor agrees to execute and deliver to Assignee
such additional instruments, in form and substance satisfactory to Assignee, as
may hereinafter be requested by Assignee to further evidence and confirm said
assignment. Assignee is hereby granted and assigned by Assignor the right to
enter the Mortgaged Property for the purpose of enforcing its interest in the
Leases and the Rents, this Assignment constituting a present, absolute and
unconditional assignment of the Leases and Rents. Nevertheless, subject to the
terms of this paragraph, Assignee grants to Assignor a revocable license to
operate and manage the Mortgaged Property and to collect the Rents. Assignor
shall hold the Rents, or a portion thereof sufficient to discharge all current
sums due on the Debt for use in the payment of such sums. Upon an Event of
Default, the license granted to Assignor herein shall automatically be revoked
and Assignee shall immediately be entitled to receive and apply all Rents,
whether or not Assignee enters upon and takes control of the Mortgaged Property.
Assignor hereby grants and assigns to Assignee the right, at its option, upon
the revocation of the license granted herein to enter upon the Mortgaged
Property in person, by agent or by court-appointed receiver to collect the
Rents. Any Rents collected after the revocation of the license herein granted
may be applied toward payment of the Debt in such priority and proportion as
Assignee, in its discretion, shall deem proper.
2. Remedies of Assignee. Upon or at any time after
an Event of Default, Assignee may, at its option, without waiving such Event of
Default, without notice and without regard to the adequacy of the security for
the Debt, 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 Mortgaged Property and have, hold, manage, lease
and operate the Mortgaged Property on such terms and for such period of time as
Assignee may deem proper and either with or without taking possession of the
Mortgaged Property in its own name, demand, sue for or otherwise collect and
receive all Rents, including those past due and unpaid with full power to make
from time to time all alterations, renovations, repairs or replacements thereto
or thereof as may seem proper to Assignee and may apply the Rents to the payment
of the following in such order and proportion as Assignee in its sole discretion
may determine, any law, custom or use to the contrary notwithstanding: (a) all
expenses of managing and securing the Mortgaged Property, including, without
being limited thereto, the salaries, fees and wages of a managing agent and such
other employees or agents as Assignee may deem necessary or desirable and all
expenses of operating and maintaining the Mortgaged Property, including, without
being limited thereto, all taxes, charges, claims, assessments, water charges,
sewer rents and any other liens, and premiums for all insurance which Assignee
may deem necessary or desirable, and the cost of all alterations, renovations,
repairs or replacements, and all expenses incident to taking and retaining
possession of the Mortgaged Property; and (b) the Debt, (including all costs and
attorneys' fees). In addition to the rights which Assignee may have herein, upon
the occurrence of an Event of Default, Assignee, at its option, may require
Assignor to vacate and surrender possession of the Mortgaged Property to
Assignee or to such receiver and, in default thereof, Assignor may be evicted by
summary proceedings or otherwise. Additionally, upon such Event of Default,
Assignee shall have the right to establish a lock box for the deposit of all
Rents and other receivables of Assignor relating to the Mortgaged Property.
Assignor shall pay any and all costs and expenses for such lock box. For
purposes of Paragraphs 1 and 2, Assignor grants to Assignee its irrevocable
power of attorney, coupled with an interest, to take any and all of the
aforementioned actions and any or all other actions designated by Assignee for
the proper management and preservation of the Mortgaged Property. The exercise
by Assignee of the option granted it in this paragraph and the collection of the
Rents and the application thereof as herein provided shall not be considered a
waiver of any Event of Default under any of the Loan Documents.
3. No Liability of Assignee. Assignee shall not be
liable for any loss sustained by Assignor resulting from Assignee's failure to
let the Mortgaged Property after an Event of Default or from any other act or
omission of Assignee in managing the Mortgaged Property after an Event of
Default unless such loss is caused by the willful misconduct and bad faith of
Assignee. Assignee shall not be obligated to perform or discharge any
obligation, duty or liability under the Leases or under or by reason of this
Assignment and Assignor shall, and hereby agrees, to indemnify Assignee for, and
to hold Assignee harmless from, any and all liability, loss or damage which may
or might be incurred under the Leases or under or by reason of this Assignment
and from any and all claims and demands whatsoever, including the defense of any
such claims or demands which may be asserted against Assignee by reason of any
alleged obligations and undertakings on its part to perform or discharge any of
the terms, covenants or agreements contained in the Leases. Should Assignee
incur any such liability, the amount thereof, including costs, expenses and
reasonable attorneys' fees, shall be secured hereby and by the Loan Documents
and Assignor shall reimburse Assignee therefor immediately upon demand and upon
Assignor's failure to do so, Assignee may, at its option, exercise any and all
remedies available to Assignee hereunder and under the other Loan Documents.
This Assignment shall not operate to place any obligation or
liability for the control, care, management or repair of the Mortgaged Property
upon Assignee, 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 Mortgaged Property, including without limitation the
presence of any Hazardous Substances, (as defined in the Environmental
Agreement, which is defined in the Note), or for any negligence in the
management, upkeep, repair or control of the Mortgaged Property resulting in
loss or injury or death to any Lessee, licensee, employee or stranger.
4. Notice to Lessees. Assignor hereby authorizes and
directs Lessees named in the Leases or any other or future Lessees or occupants
of the Mortgaged Property (the "Lessee[s]") upon receipt from Assignee of
written notice to the effect that Assignee is then the holder of the Note and
that an Event of Default exists thereunder or under the other Loan Documents to
pay over to Assignee all Rents and to continue so to do until otherwise notified
by Assignee, without further notice or consent of Assignor and regardless of
whether Assignee has taken possession of the Mortgaged Property, and Lessees may
rely upon any written statement delivered by Assignee to Lessees without any
obligation or right to inquire as to whether such default actually exists and
notwithstanding any notice from or claim of Assignor to the contrary. Assignor
further agrees that it shall have no right to claim against any of Lessees for
any such Rents so paid by Lessees to Assignee and that Assignee shall be
entitled to collect, receive and retain all Rents regardless of when and to whom
such Rents are and have been paid and regardless of the form or location of such
Rents. Any such payment to Assignee shall constitute payment to Assignor under
the Leases, and Assignor appoints Assignee as Assignor's lawful attorney-in-fact
for giving, and Assignee is hereby empowered to give, acquitances to any Lessee
for such payment to Assignee after an Event of Default. Any Rents held or
received by Assignor after a written request from Assignee to Lessees for the
payment of Rents shall be held or received by Assignor as trustee for the
benefit of Assignee only.
5. Rental Offsets. If Assignor becomes aware that any
Lessee proposes to do, or is doing, any act or thing which may give rise to any
right of set-off against Rent, Assignor shall, to the extent Assignee is
permitted to do so under the applicable lease or applicable law, (i) take such
steps as shall be reasonably calculated to prevent the accrual of any right to a
set-off against Rent, (ii) notify Assignee thereof and of the amount of said
set-offs, and (iii) within ten (10) days after such accrual for a valid set-off,
reimburse Lessee who shall have acquired such right to set-off or take such
other steps as shall effectively discharge such set-off and as shall effectively
assure that Rents thereafter due shall continue to be payable without set-off or
deduction.
6. Security Deposits. Following the occurrence and
during the continuance of any Event of Default, Assignor shall, upon Assignee's
request, if permitted by applicable legal requirements, turn over to Assignee
the security deposits (and any interest theretofore earned thereon) with respect
to all or any portion of the Mortgaged Property, to be held by Assignee subject
to the terms of the Leases.
7. Relocations. In no event shall Assignor exercise any right to
relocate any Lessee pursuant to any right set forth in a Lease without the
prior written
consent of Assignee, except for relocations in connection with the making or
renewal of Leases with respect to which Assignee's consent is not required under
the Approval Conditions above.
8. Other Security. Assignee may take or release other
security for the payment of the Debt, may release any party primarily or
secondarily liable therefor and may apply any other security held by it to the
reduction or satisfaction of the Debt without prejudice to any of its rights
under this Assignment.
9. Other Remedies. Nothing contained in this
Assignment and no act done or omitted by Assignee pursuant to the power and
rights granted to Assignee hereunder shall be deemed to be a waiver by Assignee
of its rights and remedies under the other Loan Documents and this Assignment is
made and accepted without prejudice to any of the rights and remedies possessed
by Assignee under the terms thereof. The right of Assignee to collect the Debt
and to enforce any other security therefor held by it may be exercised by
Assignee either prior to, simultaneously with, or subsequent to any action taken
by it hereunder.
10. No Mortgagee in Possession. Nothing herein
contained shall be construed as constituting Assignee a "mortgagee in
possession" in the absence of the taking of actual possession of the Mortgaged
Property by Assignee. In the exercise of the powers herein granted Assignee, no
liability shall be asserted or enforced against Assignee, all such liability
being expressly waived and released by Assignor.
11. No Oral Change. This Assignment may not be
modified, amended, waived, extended, changed, discharged or terminated orally,
or by any act or failure to act on the part of Assignor or Assignee, but only by
an agreement in writing signed by the party against whom the enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is
sought.
12. Certain Definitions. Unless the context clearly
indicates a contrary intent or unless otherwise specifically provided herein,
words used in this Assignment may be used interchangeable in singular or plural
form and the word "Assignor" shall mean "each Assignor and any subsequent owner
or owners of the Mortgaged Property or any part thereof or any interest
therein," the word "Assignee" shall mean "Assignee and any subsequent holder of
the Note," the word "person" shall include an individual, corporation,
partnership, trust, unincorporated association, government, governmental
authority, and any other entity, the words "Mortgaged Property" shall include
any portion of the Mortgaged Property and any interest therein; whenever the
context may require, any pronouns used herein shall include the corresponding
masculine, feminine or neuter forms, and the singular form of nouns and pronouns
shall include the plural and vice versa.
13. Non-Waiver. The failure of Assignee to insist upon
strict performance of any term hereof shall not be deemed to be a waiver of any
term of this Assignment. Assignor shall not be relieved of Assignor's
obligations hereunder by reason of (a) failure of Assignee to comply with any
request of Assignor or any other party to take any action to enforce any of the
provisions hereof or of the other Loan Documents, (b) the release regardless
of consideration, of the whole or any part of the Mortgaged Property, or (c) any
agreement or stipulation by Assignee extending the time of payment or otherwise
modifying or supplementing the terms of this Assignment or the other Loan
Documents. Assignee may resort for the payment of the Debt to any other security
held by Assignee in such order and manner as Assignee, in its discretion, may
elect. Assignee may take any action to recover the Debt, or any portion thereof
or to enforce any covenant hereof without prejudice to the right of Assignee
thereafter to enforce its rights under this Assignment. The rights of Assignee
under this Assignment shall be separate, distinct and cumulative and none shall
be given effect to the exclusion of the others. No act of Assignee shall be
construed as an election to proceed under any one provision herein to the
exclusion of any other provision.
14. Inapplicable Provisions. If any term, covenant or
condition of this Assignment is held to be invalid, illegal or unenforceable in
any respect, this Assignment shall be construed without such provision.
15. Counterparts. This Assignment may be executed
in any number of counterparts each of which shall be deemed to be an original
but all of which when taken together shall constitute one agreement.
16. GOVERNING LAW; JURISDICTION. THIS
ASSIGNMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE IN WHICH THE REAL PROPERTY ENCUMBERED BY THE MORTGAGE IS LOCATED AND THE
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. ASSIGNOR HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY COURT OF COMPETENT JURISDICTION LOCATED IN
THE STATE IN WHICH THE MORTGAGED PROPERTY IS LOCATED IN CONNECTION WITH ANY
PROCEEDING ARISING OUT OF OR RELATING TO THIS ASSIGNMENT.
17. Successors and Assigns. Assignor may not assign
its rights under this Assignment. Assignor hereby acknowledges and agrees that
Assignee may assign this Assignment without Assignor's consent. Subject to the
foregoing, this Assignment shall be binding upon, and shall inure to the benefit
of, Assignor and the Assignee and their respective successors and assigns.
18. Termination of Assignment. Upon payment in full
of the Debt and the delivery and recording of a satisfaction, release or
discharge of Mortgage duly executed by Assignee, this Assignment shall become
and be void and of no effect.
THIS ASSIGNMENT shall inure to the benefit of
Assignee and any subsequent holder of the Note and shall be binding upon
Assignor, and Assignor's heirs, executors, administrators, successors and
assigns and any subsequent owner of the Mortgaged Property.
(Signature page follows)
Assignor has executed this instrument as of the day and
year first above written.
ASSIGNOR:
CONCORD MILESTONE PLUS, L.P.,
a Delaware limited partnership,
By: CM PLUS CORPORATION,
a Delaware corporation,
Its General Partner
By:
Name:
Title: