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EXHIBIT 4.04(c)
CERTIFIED TO BE A
TRUE COPY
BY MAXINE J. LIEVOIS
FRANK'S NURSERY & CRAFTS, INC.
(Assignor)
to
MIDLAND LOAN SERVICES, L.P.
(Assignee)
ASSIGNMENT OF RENTS AND LEASES
Dated: March 14, 1996
Location: 250 28th Street SE
Grand Rapids, Michigan 49508
RECORD AND RETURN TO:
MIDLAND LOAN SERVICES, L.P.
210 West 10th Street, 6th Floor
Kansas City, MO 64105
Attention: MCF Closing Department
Loan No. 94-0903604
Store No. 25
THIS INSTRUMENT WAS DRAFTED BY:
Michael B. Hickman
Morrison & Hecker
2600 Grand Avenue
Kansas City, Missouri 64108-4606
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ASSIGNMENT OF RENTS AND LEASES
FOR VALUE RECEIVED, Frank's Nursery & Crafts, Inc., a Michigan corporation
("Assignor"), the address of which is 6501 East Nevada, Detroit, Michigan
48234, hereby grants, assigns, transfers and sets over unto Midland Loan
Services, L.P., a Missouri limited partnership ("Assignee"), the address of
which is 210 West 10th Street, 6th Floor, Kansas City, Missouri 64105, and
grants to Assignee a security interest in, (a) all of the rents, issues,
profits and income whatsoever arising from or which may be had under any
leases, occupancy agreements or storage or space agreements (the "Rents") now
existing or which may be hereafter created, as the same may be extended,
modified or renewed (such leases, occupancy agreements and storage agreements,
together with all extensions, modifications and renewals thereof, are
collectively referred to herein as the "Leases"), relating to all or any part
of the (i) real estate described in Exhibit A attached hereto and by this
reference made a part hereof or (ii) buildings or improvements now or hereafter
located thereon (said real estate, buildings and improvements shall be
hereinafter collectively referred to as the "Property"), (b) all right, title
and interest of Assignor in and to all Leases, and (c) all security deposits,
guaranties, letters of credit and other assurances of the lessee's or tenant's
indebtedness under the Leases, together with any extensions and renewals
thereof (the "Assurances"), as additional collateral security for (i) the
payment of the Debt (as defined in the Mortgage [said document, as defined in
the Note and as the same may be amended and modified from time to time
hereafter, is herein called the "Mortgage"]), including, without limitation,
the Debt now or hereafter evidenced by the Note (as defined in the Mortgage) in
the principal amount of $682,878.00 of even date herewith, (ii) the payment of
the Other Debt (as defined in the Mortgage) and the Additional Debt (as defined
in the Mortgage), in the current original principal amounts of $19,288,597.69,
and (ii) the performance and observance of all the covenants, warranties,
representations, terms and conditions of the Note, Mortgage, Other Loan
documents (as defined in the Mortgage), Additional Loan Documents (as defined
in the Mortgage), this document and all other documents securing, evidencing or
executed in connection with said Debt (collectively, the "Loan Documents").
1. Assignor's Obligations. Assignor shall observe and perform all of the
covenants, conditions, and agreements in any Lease or in any assignment in fact
given by Assignor to Assignee of any particular Lease on the part of the
Assignor or the landlord to be observed and performed thereunder. Assignor
shall not, without the prior written consent of Assignee, (a) accept any
payment of Rents or installment of Rents for more than one (1) month in advance
except as otherwise provided in the Mortgage, (b) except in the ordinary course
of the business of a mini-self-storage facility of less than ten percent (10%)
of the rentable square footage of such storage facility ("Storage Facility"),
amend, cancel, abridge, terminate, or modify any Lease, (c) except in the
ordinary course of the business of a Storage Facility, enter into any Lease not
existing as of the date hereof, (d) except in the ordinary course of the
business of a Storage Facility, take any action or exercise any right or option
which would permit the lessee or tenant under any Lease to cancel or terminate
said Lease, (e) permit any Lease to be or become subordinate to any lien other
than the lien of the Mortgage or any lien to which the Mortgage is now or may
pursuant to their respective terms become subordinate, or (f) except in the
ordinary course of the business of a Storage Facility, permit any assignment or
sublease; provided, however, that the Assignee's right to approve any such
assignment or sublease shall be co-extensive with the Assignor's right to
approve such assignment or sublease as contained in the Lease to which the
assignment or sublease relates and which Lease has been approved by the
Assignee. As used in this Assignment of Rents and Leases, the terms "Lease"
and "Leases" shall include, without limitation, all agreements for the
management, maintenance, or operation of any part of the Property.
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2. Events of Default.
(a) Upon the occurrence of an Event of Default (as defined in the Mortgage),
Assignee may thereafter receive and collect the Rents and Assurances
personally or through a receiver so long as such Event of Default shall exist
and during the pendency of any foreclosure proceedings and during any
redemption period, and Assignor agrees to consent to a receiver if this is
believed necessary or desirable by Assignee to enforce its rights under this
Assignment. Assignee shall be entitled to all of the rights and benefits
conferred by Act No. 210 of the Michigan Public Acts of 1953 as amended by
Act No. 151 of the Michigan Public Acts of 1966 (MCL 554.231 et seq). The
collection of Rents and Assurances by the Assignee shall in no way waive the
right of Assignee to foreclose the Mortgage in the event of any said Event of
Default.
(b) Upon the occurrence of an Event of Default, Assignee shall be entitled
forthwith to take possession and control of the Property and shall have the
sole and exclusive right and authority to manage and operate the same, with
full power to employ agents to manage the premises, and to do all acts
relating to such management, including, but not limited to, contracting and
paying for such repairs and replacements to the buildings and fixtures,
equipment and personal property located therein and used in any way in the
operation, use, and occupancy of the Property as in the sole judgment and
discretion of Assignee may be necessary to maintain the same in an
operational condition, purchasing and paying for such additional materials
and equipment as in sole judgment of Assignee may be necessary to maintain a
proper income from the Property, employing necessary operational employees,
maintenance employees, providing utilities and paying for all other necessary
expenses incurred in the operation of the premises, maintaining adequate
insurance coverage over hazards customarily insured against and paying the
premiums therefor, and applying the Rents collected upon the Debt (as defined
in the Mortgage and which includes any and all expenses incurred by the
Assignee in entering, taking possession of, managing or operating the
Property or collecting and receiving the Rents and Assurances), allocating
the same as the Assignee in its sole and absolute discretion shall determine.
(c) The occurrence of an Event of Default shall immediately vest in the
Assignee the exclusive right to own and possess the Rents and Assurances
regardless of whether it has served notices of default on lessees or tenants
under the Leases. Any Rents received by Assignor after the occurrence of an
Event of Default are received in trust for the benefit of the Assignee, and
shall be applied to the actual, reasonable and necessary expenses of
operation, management and maintenance of the Property; and the payment of the
Debt; and Assignor shall account therefor to Assignee. The application of
the Rents in accordance with this Assignment of Rents and Leases (this
"Assignment") shall not constitute a defense to or bar to the exercise of all
or any of the rights and remedies of the Assignee afforded by this Assignment
or otherwise at law or in equity.
3. Limitation of Assignee Liability. It is further understood that this
Assignment shall not operate to place responsibility for the control, care,
management or repair of the Property upon Assignee, nor for the performance of
any of the terms and conditions of any Leases or other agreements assigned
hereunder, nor shall it operate to make Assignee responsible or liable for any
waste committed on the Property by the lessees or tenants or any other party or
for any dangerous or defective condition of the Property or for any negligence
in the management, upkeep, repair or
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control of the Property resulting in loss or injury to any lessee or tenant,
invitee, licensee, employee or stranger.
4. Obstruction. If the Assignor obstructs the Assignee in its efforts to
collect the Rents or Assurances, or, after requested by the Assignee,
unreasonably refuses, fails or neglects to assist the Assignee in collecting
the Rents or Assurances, the Assignee shall be entitled to the appointment of a
receiver of the Property and of the Rents and Assurances, the receiver to have
whatsoever powers as the court making the appointment may confer.
5. Further Assignment. Assignor hereby assigns to Assignee (a) any award or
other payment which Assignor may hereafter become entitled to receive with
respect to a Lease or other agreement relating or pertaining to the operation
of the Property as a result of or pursuant to any bankruptcy, insolvency, or
reorganization or similar proceedings involving any other party under such
Lease or other agreement and (b) any and all payments made by or on behalf of
any other party. Assignor hereby irrevocably appoints Assignee as its attorney
to appear in any such proceeding and/or collect any such award or payment.
6. Notice of Assignment. Assignee may, at its option, notify any lessees or
tenants or other parties of the existence of this Assignment.
7. Remedies Cumulative. The remedies of Assignee hereunder are cumulative
and the exercise of any one or more of the remedies provided for herein shall
not be construed as a waiver of any of the other remedies of Assignee as long
as any obligation under the Loan Documents remains unsatisfied.
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. No Mortgagee-in-Possession. Nothing herein contained shall be construed
as constituting Assignee a "mortgagee-in-possession" or
"beneficiary-in-possession" in the absence of the taking of actual possession
of the Mortgaged Property by Assignee. Assignor hereby expressly waives and
releases all claims and liability against Assignee in Assignee's exercise of
its rights and powers hereunder.
10. Notices. Except as otherwise specified herein, any notice, consent,
request or other communication required or permitted to be given hereunder
shall be in writing, addressed to the other party as set forth below (or to
such other address or person as either party or person entitled to notice may
by notice to the other party specify), and shall be: (a) personally delivered;
(b) delivered by Federal Express or other comparable overnight delivery
service; or (c) transmitted by United States certified mail, return receipt
requested with postage prepaid; to:
Assignee: Midland Loan Services, L.P.
210 West 10th Street, 6th Floor
Kansas City, MO 64105
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Assignor: Frank's Nursery & Crafts, Inc.
6501 East Nevada
Detroit, MI 48234
Attention: Robert M. Lovejoy, Jr.
Unless otherwise specified, all notices and other communications shall be
deemed to have been duly given on the first to occur of actual receipt of the
same or: (i) the date of delivery if personally delivered; (ii) one (1)
business day after depositing the same with the delivery service if by
overnight delivery service; and (iii) three (3) days following posting if
transmitted by mail.
Assignee and its duly authorized agents shall be entitled to enter the
Property for the purpose of delivering any and all notices and other
communications to the lessees, tenants or subtenants and occupiers thereof as
shall be necessary or desirable in the Assignee's discretion to exercise its
rights hereunder; and the Assignee and its agents shall have absolutely no
liability to the Assignor in this connection; provided, however, that the
Assignee shall not be obligated to give any lessee, tenant, subtenant or
occupier of the Property any notice by personal delivery and the Assignee may
in its sole discretion deliver any notices and communications by ordinary
first-class U.S. mail, postage prepaid, or in any other permitted under this
Paragraph.
11. Conflict of Terms. In case of any conflict between the terms of this
Assignment and the terms of either the Note or the Mortgage, the terms of the
Note and the Mortgage shall prevail.
12. No Oral Change. This Assignment and any provisions hereof 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.
13. Certain Definitions. Unless the context clearly indicates a contrary
intent or unless otherwise specifically provided herein, words used in this
Assignment (including pronouns) shall include the corresponding masculine,
feminine or neuter forms, and the singular form of such words shall include the
plural and vice versa. 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 "Note" shall mean "the Note and any other
evidence of indebtedness secured by the Mortgage"; the word "person" shall
include an individual, corporation, partnership, trust, unincorporated
association, government, governmental authority and any other entity; the words
"Property" shall include any portion of the Property and any interest therein;
and the word "Debt" shall mean all amounts due and payable under the Note,
together with all sums due under the Mortgage and the Loan Documents, including
applicable attorney fees and costs.
14. Non-Waiver. The acceptance of this Assignment and the collection of the
Rents and Assurances in the event of an Event of Default, as referred to above,
shall be without prejudice to and shall not constitute a waiver on the part of
Assignee of any of Assignee's rights or remedies under the terms and conditions
of the Loan Documents, at law or in equity, or otherwise. 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 (i) 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 Mortgage, the Note or
the Loan
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Documents; (ii) the release, regardless of consideration, of the whole or any
part of the Mortgaged Property, or (iii) any agreement or stipulation by
Assignee extending the time of payment or otherwise modifying or supplementing
the terms of this Assignment, the Note, the Mortgage or the 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 sole and absolute
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.
15. Inapplicable Terms, Covenants or Conditions. 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 term, covenant or
condition.
16. Duplicate Originals. This Assignment may be executed in any number of
duplicate originals, each of which shall be deemed to be an original.
17. Applicable 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, without regard to conflict of law
provisions thereof. Assignor hereby submits to personal jurisdiction in the
state courts located in said state and the federal courts of the United States
of America (and any appellate courts taking appeals thereof) located in said
state for the enforcement of Assignor's obligations hereunder and waives any
and all personal rights under the law of any other state to object to
jurisdiction within such state for the purposes of any action, suit, proceeding
or litigation to enforce such obligations of Assignor. Assignor hereby waives
and agrees not to assert, as a defense in any action, suit, proceeding or
litigation arising out of or relating to this Assignment, the Note, the
Mortgage and/or any of the Other Loan Documents: (a) that it is not subject to
such jurisdiction or that such action, suit, proceeding or litigation may not
be brought or is not maintainable in those courts or that this Assignment, the
Note, the Mortgage and/or any of the Other Loan Documents may not be enforced
in or by those courts or that it is exempt or immune from execution; (b) that
the action, suit, proceeding or litigation is brought in an inconvenient forum;
or (c) that the venue of the action, suit, proceeding or litigation is
improper.
18. Termination of Assignment. Upon payment in full of the Debt and the
delivery and recording of a satisfaction, conveyance or discharge of the
Mortgage duly executed by Assignee, this Assignment shall be deemed null and
void and of no further effect.
19. Successors and Assigns. This Assignment, together with the covenants
and warranties herein contained, shall inure to the benefit of Assignee and any
subsequent holder of the Note and beneficiary under the Mortgage and shall be
binding upon Assignor, its heirs, executors, administrators, successors and
assigns and any subsequent owner of the Mortgaged Property.
20. WAIVER OF JURY TRIAL. ASSIGNOR AND ASSIGNEE HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION IN CONNECTION WITH THIS ASSIGNMENT, THE NOTE, THE
MORTGAGE OR ANY OF THE LOAN DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF ASSIGNOR OR
ASSIGNEE. THIS
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PROVISION IS A MATERIAL INDUCEMENT FOR ASSIGNEE'S MAKING OF THE LOAN SECURED BY
THE MORTGAGE AND THE LOAN DOCUMENTS.
IN WITNESS WHEREOF, Assignor has executed this Assignment of Rents and Leases
as of the 14th day of March, 1996.
In the Presence of: "Assignor"
Lauren J. Cato FRANK'S NURSERY & CRAFTS, INC.,
- --------------------------- a Michigan corporation
Print Name: Lauren J. Cato
----------------
Maxine J. Lievois By: Robert M. Lovejoy, Jr.
- ------------------------------- ----------------------------
Print Name: Maxine J. Lievois Print Name: Robert M. Lovejoy, Jr.
-------------------- Title: Vice President & Treasurer
ACKNOWLEDGEMENT
STATE OF MICHIGAN )
) ss.
COUNTY OF WAYNE )
The foregoing instrument was acknowledged before me this 14th day of March,
1996, by Robert M. Lovejoy, Jr., the Vice President and Treasurer of Frank's
Nursery & Crafts, Inc. , a Michigan corporation, on behalf of the corporation.
Sherry L. Rygwelski
-------------------------------------
Notary Public, Wayne County, Michigan
My Commission Expires: 12/27/98
[NOTARY SEAL]
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EXHIBIT A
LEGAL DESCRIPTION
The real property situated in the County of Kent, State of Michigan,
described as follows:
Parcel 1:
Part of the West 1/2 of the Northwest 1/4, Section 15, T6N, R11W, City of Grand
Rapids, Kent County, Michigan, commencing at the Northeast corner thereof;
thence North 89 degrees 36 minutes 30 seconds West 480.0 feet along the North
section line; thence South 02 degrees 52 minutes East 54.6 feet parallel with
the West 1/8 line to the South line of 28th Street (100 feet wide) and
beginning of this description; thence South 02 degrees 52 minutes East to a
line 450 feet South from and parallel with the South line of 28th Street;
thence 90 degrees 00 minutes West along said line to the East line of the West
348 feet of the Northwest 1/4; thence North 02 degrees 57 minutes 30 seconds
West along said East line to a point 192.25 feet South from the South line of
28th Street; thence North 90 degrees 00 minutes East 93.11 feet; thence North
00 degrees 00 minutes 159.00 feet; thence North 90 degrees 00 minutes East 36.0
feet; thence North perpendicular to the South line of 28th Street to the South
line of the North 15 feet of that part of the Northwest 1/4 lying South of the
South line of 28th Street; thence East along said South line to the East line
of the West 548 feet of the Northwest 1/4; thence North along said East line to
the South line of 28th Street; thence East along the South line of 28th Street
to beginning; except commencing 494.46 feet North 89 degrees 36 minutes 30
seconds West along the North section line and 54.68 feet South 0 degrees 05
minutes East from the Northeast corner of the West 1/2 of the Northwest 1/4;
thence South 00 degrees 05 minutes East 410.90 feet; thence South 89 degrees 55
minutes West 100.0 feet; thence North 00 degrees 05 minutes West 376.04 feet;
thence 90 degrees 00 minutes East 10.0 feet; thence North 0 degrees 05 minutes
West 35.0 feet; thence North 90 degrees 00 minutes East 90.0 feet along the
South line of 28th Street to beginning.
Parcel 2:
Easement for pedestrian and vehicular passage and vehicular parking on, over
and across that certain property described in Exhibit D to that certain
Reciprocal Easement Grant dated September 6, 1984, and filed for record in
Liber 2440 at Page 569, appurtenant to and for the benefit of the property
described above as Parcel 1.
Parcel 3:
Easement for pedestrian and vehicular passage and vehicular parking on, over
and across that certain property described in Exhibit D to that certain
Reciprocal Easement Grant dated July 18, 1983, and filed for record in Liber
2406 at Page 915, appurtenant to and for the benefit of the property described
above as Parcel 1.
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