10060
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment"), dated as of July
15, 1994, is made by BLUE VALLEY BUILDING CORP., a Kansas corporation
("Borrower"), with an address at P.O. Box 26128, Overland Park, Kansas 66225, to
and in favor of BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA, a Missouri
corporation ("Lender"), with an address at c/o Charter American Mortgage
Company, 2001 Shawnee Mission Parkway, Mission Hills, Kansas 66205.
RECITALS
(A) Lender has agreed to make a loan to Borrower in the amount of
$2,500,000.00 (the "Loan"), which will be evidenced by that certain Promissory
Note of even date herewith (the "Note") executed by Borrower in favor of Lender
in the amount of the Loan and bearing interest and being payable as set forth
therein.
(B) The Loan will be secured, in part, by that certain Mortgage,
Assignment of Leases and Rents, Security Agreement and Financing Statement dated
as of the date of the Note (the "Mortgage") between Borrower and Lender,
encumbering the Mortgaged Estate, including the Land described on Exhibit A,
attached hereto and incorporated herein, and the other Loan Documents, which
term includes this Assignment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower hereby agrees as follows:
1. Definitions. Capitalized terms used herein shall have the respective
meanings given them in the Mortgage, unless otherwise defined herein. The term
"including" shall mean "including, without limitation."
2. Assignment. (a) To further secure the Secured Obligations, Borrower
hereby assigns, transfers, conveys and sets over to Lender all of Borrower's
estate, right, title and interest in, to and under all leases, whether existing
on the date hereof or hereafter entered into (including any extensions,
modifications or amendments thereto) relating to the Mortgaged Estate, including
the leases, tenancies and other occupancy agreements described on Exhibit B,
attached hereto and incorporated herein (the "Leases"), together with all
rights, powers, privileges, options and other benefits of Borrower as the
landlord under the Leases regarding the current tenants and any future tenants
(the "Tenants", and each a "Tenant"), and also together with all guarantees of
the Tenants' performance and payment under the Leases, and all the rents,
charges, issues, royalties, revenues, profits, and income under the Leases or
from the Mortgaged Estate (collectively, the "Rents"), including those now due,
past due or to become due.
(b) This Assignment is a present, absolute and unconditional assignment,
and is not a contingent assignment. The rights of Lender in and to the Leases
and Rents are not dependent upon the absence or occurrence of any event.
Notwithstanding the foregoing, however, so long as no "Event of Default" (as
defined herein) has occurred, Borrower shall have a revocable license to possess
and control the Mortgaged Estate and collect and receive all Rents. Upon the
occurrence of an Event of Default, such license shall automatically be deemed to
be revoked by Lender.
3. Agreements of Borrower. Borrower hereby agrees as follows:
(a) Upon the occurrence of an Event of Default, Borrower irrevocably
appoints Lender its true and lawful attorney-in-fact, at the option of Lender at
any time and from time to time, to take possession and control of the Mortgaged
Estate, pursuant to Borrower's rights as lessor under the Leases, and to demand,
receive and enforce payment, to give receipts, releases and satisfaction and to
sue, in the name of Borrower or Lender, for all Rents;
(b) If any of the Leases provide for a security deposit paid by the Tenant
thereunder to Borrower, this Assignment shall transfer to the Lender all of
Borrower's right, title and interest in and to such security deposits; provided,
however, that Borrower shall have the right to retain such security deposits so
long as no Event of Default shall have occurred; and provided, further, that
Lender shall have no obligation to any such Tenant with respect to such security
deposits unless and until Lender comes into actual possession and accepts
control of such security deposits by notice to such Tenant;
(c) With respect to any Lease or Leases of 7,500 square feet or more (in
the aggregate) to any single Tenant, Borrower shall not terminate any such Lease
(except pursuant to the terms of such Lease upon a default by the Tenant
thereunder), grant concessions or modify or amend any such Lease in any material
manner, or consent to an assignment or subletting, without the prior written
consent of Lender;
(d) Borrower has not and shall not collect any Rent more than one (1) month
in advance of the date on which it becomes due under the terms of each Lease, or
discount any future accruing Rent, or waive any right of setoff against any
Tenant under the Leases;
(e) Except with the prior written consent of Lender, Borrower shall not
permit a subordination of any Lease to any mortgage, deed of trust or other
encumbrance, or any other lease, now or hereafter affecting the Mortgaged Estate
or any part thereof, or permit the conversion of any Lease to a sublease;
(f) Borrower shall faithfully perform and discharge all obligations of the
landlord under the Leases, and shall give prompt written notice to Lender of any
notice of Borrower's default received from a Tenant or any other person and
shall furnish Lender with a complete copy of said notice;
(g) Upon the request of Lender, Borrower shall promptly provide to Lender a
true and correct copy of all existing Leases; and
(h) Nothing herein shall be construed to constitute Lender as a "mortgagee
in possession" in the absence of its taking of actual possession of the
Mortgaged Estate pursuant to the powers granted herein, or to impose any
liability or obligation on Lender under or with respect to the Leases or the
Mortgaged Estate. Borrower shall indemnify and hold Lender harmless from and
against any and all liabilities, losses and damages (including attorneys' fees)
that Lender may incur under the Leases or by reason of this Assignment, and of
and from any and all claims and demands whatsoever that may be asserted against
Lender by reason of any alleged obligations to be performed or discharged by
Lender under the Leases or this Assignment. Any Rent collected by Lender may be
applied by Lender in its discretion in satisfaction of any such liability, loss,
damage, claim, demand, costs, expense or fees. Borrower shall appear in and
defend, at no cost to Lender, any action or proceeding arising under or in any
manner connected with the Leases. If requested by Lender, Borrower shall enforce
any Lease and all remedies available to Borrower against the Tenant in the case
of default under such Lease by the Tenant thereunder.
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4. Event of Default. The following shall constitute an Event of Default
hereunder: (i) the occurrence of an Event of Default under any Loan Document; or
(ii) if at any time any representation or warranty made by Borrower in this
Assignment shall be or become materially incorrect; or (iii) the breach of any
agreement by Borrower under this Assignment.
5. Remedies of Lender. (a) Upon the occurrence of an Event of Default,
Lender shall have the following rights and remedies, all of which are
cumulative, in addition to all other rights and remedies provided under the Loan
Documents, or any other agreement between Borrower and Lender, or otherwise
available at law or in equity or by statute:
(i) Lender may, at any time without notice, either in person, by agent
or by a court-appointed receiver, regardless of the adequacy of Lender's
security, enter upon and take possession and control of the Mortgaged
Estate, or any part thereof, to perform all acts necessary and appropriate
to operate and maintain the Mortgaged Estate including, but not limited to,
execute, cancel or modify the Leases, make repairs to the Mortgaged Estate,
execute or terminate contracts providing for the management or maintenance
of the Mortgaged Estate, all on such terms as are deemed best to protect
the security of this Assignment, in Lender's sole discretion, and in
Lender's or Borrower's name, sue for or otherwise collect such Rents from
the Mortgaged Estate as specified in this Assignment as the same become due
and payable, including, but not limited to, Rents then due and unpaid; and
(ii) Lender shall be deemed to be the creditor of each Tenant in
respect of any assignments for the benefit of creditors and any bankruptcy,
arrangement, reorganization, insolvency, dissolution, receivership or other
debtor-relief proceedings affecting the Tenant (without obligation on the
part of Lender, however, to file timely claims in such proceedings or
otherwise pursue creditor's rights therein).
(b) All Rents collected subsequent to the occurrence of any Event of
Default shall be applied at the discretion of, and in such order as determined
by, Lender to the costs, if any, of taking possession and control of and
managing the Mortgaged Estate and collecting such amounts, including, attorney's
fees, receiver's fees, premiums on receiver's bonds, costs of repairs to the
Mortgaged Estate, premiums on insurance policies, taxes, assessments and other
charges on the Mortgaged Estate, and the costs of discharging any obligation or
liability of Borrower as lessor or landlord of the Mortgaged Estate and to the
Secured Obligations. Lender or the receiver shall have access to the books and
records used in the operation and maintenance of the Mortgaged Estate and shall
be liable to account only for those Rents actually received. Lender shall not be
liable to Borrower, anyone claiming under or through Borrower or anyone having
an interest in the Mortgaged Estate by reason of anything done or left undone by
Lender hereunder.
(c) Lender shall have the right to notify all Tenants of an Event of
Default and to direct the Tenants to thereafter pay all Rents to Lender, and
Lender shall be entitled to receive the Rents without appointment of a receiver
or other court action. All Tenants and guarantors of Leases are hereby
authorized to rely upon and comply with any notice from Lender to begin paying
the Rents to Lender, and all such Rents paid to Lender shall be in satisfaction
of the Tenants' obligations under the Leases, and Borrower shall have no claim
against any Tenant for any such Rents paid to Lender pursuant to such notice.
(d) If the Rents are not sufficient to meet the costs, if any, of taking
possession and control of and managing the Mortgaged Estate and collecting the
same, any funds expended by Lender for such purposes shall become Secured
Obligations.
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(e) Any entering upon and taking possession and control of the Mortgaged
Estate by Lender or the receiver and any application of Rents as provided herein
shall not cure or waive any Event of Default or invalidate any other right or
remedy of Lender.
(f) Borrower hereby represents and agrees that it is and will be the sole
owner of the entire landlord's interest (or Tenant's interest in the case of
Leases with respect to which Borrower is the Tenant) in all Leases, subject only
to the Permitted Encumbrances.
6. Lease Provisions. All Leases executed after the date of this Assignment
shall contain (i) a provision obligating the Tenant to enter into a
subordination and attornment agreement with Lender in form and substance
satisfactory to Lender, subordinating such Lease to the lien of the Mortgage and
(ii) a provision authorizing the Tenant to pay the Rents to Lender upon notice
of an Event of Default under this Assignment.
7. Release. The assignment contained herein and all rights herein assigned
to Lender shall cease and terminate as to all Leases: (i) upon the satisfaction
of all Secured Obligations; or (ii) upon the release of the Mortgaged Estate
subject to such Lease from the lien of the Mortgage covering such Mortgaged
Estate pursuant to the provisions of such Mortgage. It is expressly understood
that no judgment or decree that may be entered on any Secured Obligation shall
operate to abrogate or lessen the effect of this Assignment, but that the same
shall continue in full force and effect as herein provided. The provisions of
this Assignment shall also remain in full force and effect during the pendency
of any proceedings for the foreclosure and/or sale of the Mortgaged Estate, or
any part thereof, both before and after sale, until the issuance of a deed
pursuant to a decree of foreclosure and/or sale, unless all Secured Obligations
are fully satisfied. Lender may take or release other security for the Secured
Obligations, may release any party primarily or secondarily liable therefor and
may apply any other security held by it to the satisfaction of Secured
Obligations, without prejudice to any of its rights under this Assignment.
8. No Waiver. Nothing contained in this Assignment and no act done or
omitted by Lender pursuant to the powers and rights granted it hereunder shall
prejudice or be deemed to be a waiver by Lender of its rights and remedies under
the Loan Documents. A waiver by Lender of any of its rights hereunder or under
the Leases or of a breach of any of the covenants and agreements contained
herein to be performed by Borrower shall not be construed as a waiver of such
rights in any succeeding instance or of any succeeding breach of the same or
other covenants, agreements, restrictions or conditions.
9. Further Assurances. Borrower hereby agrees that it shall, whenever and
as often as it shall be requested to do so by Lender, execute, acknowledge and
deliver, or cause to be executed, acknowledged, and delivered, any and all such
further conveyances, approvals, consents, memoranda of the subject matter
hereof, duplicate originals hereof, and any and all other documents and to do
any and all other acts as may be necessary or appropriate to carry out the terms
of this Assignment.
10. Notices. All notices consents or communications permitted required
under this Assignment shall be in writing and shall be deemed to have been
properly given and received if sent by hand delivery, overnight courier or U.S.
Express Mail , or certified mail, postage prepaid, as specified in the Mortgage.
11. Governing Laws; Severability. This Assignment shall be governed by and
construed under the laws of the state where the Land is located. In case any of
the provisions of this Assignment shall at any time be held by a court of
competent jurisdiction to be illegal, invalid, or unenforceable for any reason,
such illegality, invalidity or unenforceability shall not affect the remaining
provisions of this Assignment, and this Assignment shall be construed and
enforced as if all such illegal, invalid or unenforceable provisions had never
been inserted herein.
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12. Assignment By Lender. Lender shall have the right to assign Borrower's
right, title and interest under this Assignment in any of the Leases to any
subsequent holder of the Note or any participating interest therein or to any
person acquiring title to the Mortgaged Estate or any part thereof through
foreclosure or otherwise. Any subsequent assignee shall have all the rights and
powers herein provided to Lender.
13. Successors. This Assignment shall inure to the benefit of and be
binding upon Borrower and Lender, and their respective heirs, successors, legal
representatives and assigns.
IN WITNESS WHEREOF, Borrower has executed this Assignment as of the date
first set for above.
BLUE VALLEY BUILDING CORP.,
a Kansas corporation
ATTEST: [SEAL] By: /s/ Robert D. Regnier
Robert D. Regnier, President
By: /s/ Patricia L. Day
Secretary
Acknowledgement
Exhibit A: Legal Description
Exhibit B: Leases
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STATE OF MISSOURI )
) ss.
COUNTY OF JACKSON )
NOW, on this 15th day of July, 1994, before me, a Notary Public, appeared
Robert D. Regnier, to me personally known, who being by me duly sworn did say
that he is the President of Blue Valley Building Corp., a Kansas corporation,
and that said instrument was signed in his capacity as President of said
corporation in behalf of said corporation and said Robert D. Regnier
acknowledged said instrument to be the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the county and state aforesaid, the day and year last above written.
/s/ Kathryn L. Mills
Notary Public
[SEAL]
My Commission Expires:
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EXHIBIT A
Legal Description
Tract B, METCALF AT 119TH STREET DEVELOPMENT, a subdivision in the City of
Overland Park, Johnson County, Kansas; and together with an appurtenant
easement for access as defined by the Declaration of Cross Easement filed
January 26, 1989 in Volume 2932 page 171, described as follows: A tract of
land lying in the East 1/2 of the East 1/2 of the Northwest 1/4 of the
Northeast 1/4 of Section 19, Township 13 South, Range 25 East, in the City
of Overland Park, Johnson County, Kansas, and also being a part of WINDSOR
SQUARE, a subdivision in the City of Overland Park, Johnson County,
Kansas, more particularly described as follows: Commencing at the
Northeast corner of said Northwest 1/4 of the Northeast 1/4; thence South
00 degrees 06' 10" West along the East line of said Northwest 1/4 of the
Northeast 1/4 a distance of 60.00 feet to the Point of Beginning, said
point being the Northeast corner of Lot 1, Block 1, WINDSOR SQUARE; thence
continuing South 00 degrees 06' 10" West along the East line of said
Northwest 1/4 of the Northeast 1/4 a distance of 455.01 feet; thence South
89 degrees 44' 08" West parallel with the North line of said Northwest 1/4
of the Northeast 1/4 a distance of 32.00 feet; thence North 00 degrees 06'
10" East parallel with the East line of said Northwest 1/4 of the
Northeast 1/4 a distance of 174.91 feet; thence on a curve to the left
having a radius of 15.00 feet (a chord bearing of North 45 degrees 04' 51"
West, a length of 21.28 feet) a distance of 23.66 feet; thence South 89
degrees 44' 08" West parallel with the North line of said Northwest 1/4 of
the Northeast 1/4 a distance of 284.00 feet; thence North 00 degrees 07'
42" East a distance of 30.00 feet; thence North 89 degrees 44' 08" East
parallel with the North line of said Northwest 1/4 of the Northeast 1/4 a
distance of 284.18 feet; thence on a curve to the left having a radius of
15.00 feet (a chord bearing of North 44 degrees 55' 09" East, a length of
21.15 feet) a distance of 23.47 feet; thence North 00 degrees 06' 10" East
parallel with the East line of said Northwest 1/4 of the Northeast 1/4 a
distance of 148.35 feet; thence North 02 degrees 16' 17" West a distance
of 48.28 feet; thence North 00 degrees 06' 10" East parallel with the East
line of said Northwest 1/4 of the Northeast 1/4 a distance of 11.50 feet;
thence on a curve to the left having a radius of 20.00 feet (a chord
bearing of North 18 degrees 17' 11" West, a length of 12.62 feet) a
distance of 12.84 feet; thence North 89 degrees 44' 08" East parallel with
the North line of said Northwest 1/4 of the Northeast 1/4 a distance of
37.98 feet to the point of beginning; and also together with the
appurtenant easement for access defined as the Access Easement reserved by
the document filed August 25, 1992 in Volume 3684 Page 46, described as
follows: All that part of the Northeast 1/4 of the Northeast 1/4 of
Section 19, Township 13, Range 25, in the City of Overland Park, Johnson
County, Kansas, more particularly described as follows: Beginning at the
Northwest corner of the Northeast 1/4 of the Northeast 1/4 of said Section
19; thence South 01 degrees 57' 41" East along the West line of the
Northeast 1/4 of the Northeast 1/4 of said Section 19, a distance of 310
feet; thence North 88 degrees 02' 19" East, along a line perpendicular to
the West line of the Northeast 1/4 of the Northeast 1/4 of said Section
19, a distance of 35 feet; thence North 01 degree 57' 41" West, along a
line 35 feet East of and parallel to the West line of the Northeast 1/4 of
the Northeast 1/4 of said Section 19, a distance of 310.22 feet, to a
point on the North line thereof; thence South 87 degrees 40' 39" West,
along the North line of the Northeast 1/4 of the Northeast 1/4 of said
Section 19, a distance of 35 feet to the point of beginning, all subject
to that part thereof dedicated for street purposes.
EXHIBIT B
Leases
1. Building Lease dated February 17, 1993, by and between Blue
Valley Building Corp., as Lessor, and Bank of Blue Valley, as Lessee.
2. Office Building Lease dated September 23, 1992, by and between
Blue Valley Building Corp., as Lessor, and Sunburst Realty Partners, Inc., as
Lessee.
3. Office Building Lease dated September 29, 1992, by and between
Blue Valley Building Corp., as Lessor, and Positive Care Service, Inc., as
Lessee.
4. Office Building Lease dated November 1, 1993, by and between Blue
Valley Building Corp., as Lessor, and Advance Mortgage Corporation, as Lessee.
5. Office Building Lease dated May 1, 1994, by and between Blue
Valley Building Corp., as Lessor, and City Cafe's, Inc., as Lessee.