EXHIBIT 4.5
PREPARED BY AND UPON RECORDATION RETURN TO:
Xxxxxxxxxx Xxxxxxxx LLP
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxxx Xxxx, Xx., Esq.
Tax Map Parcel # ___________________
Loan No.: 00-0000000 Tradewinds Apartments
Newport News, VA
CRIT-VA III, INC.,
as Assignor
to
FIRST UNION NATIONAL BANK,
as Assignee
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ASSIGNMENT OF LEASES AND RENTS
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Date: June 20, 2001
ASSIGNMENT OF LEASES AND RENTS
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THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") made as of June
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20, 2001 by CRIT-VA III, INC., a Virginia corporation ("Assignor"), whose
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address is 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, in favor of FIRST
UNION NATIONAL BANK, a national banking association ("Assignee"), whose address
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is One First Union Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxx XX0000, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Contract Finance.
W I T N E S S E T H:
- - - - - - - - - -
THAT, WHEREAS, Assignor has executed that certain Promissory Note (the
"Note") dated of even date herewith, payable to the order of Assignee in the
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stated principal amount of Eleven Million One Hundred Thousand and No/100
Dollars ($11,100,000.00); and
WHEREAS, the Note is secured by that certain Deed of Trust and Security
Agreement (the "Deed of Trust") dated of even date herewith, from Assignor for
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the benefit of Assignee, encumbering that certain real property situated in the
City of Newport News, Commonwealth of Virginia, as more particularly described
on Exhibit A attached hereto and incorporated herein by this reference, and all
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buildings and other improvements now or hereafter located thereon (collectively,
the "Improvements") (said real property and the Improvements are hereinafter
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sometimes collectively referred to as the "Property"); and
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WHEREAS, Assignor is desirous of further securing to Assignee the
performance of the terms, covenants and agreements hereof and of the Note, the
Deed of Trust and the other Loan Documents (as defined in the Deed of Trust).
NOW, THEREFORE, in consideration of the making of the loan evidenced by
the Note by Assignee to Assignor and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Assignor does
hereby irrevocably, absolutely and unconditionally transfer, sell, assign,
pledge and convey to Assignee, its successors and assigns, all of the right,
title and interest of Assignor in and to (a) any and all leases, licenses,
rental agreements and occupancy agreements of all or any part of the Property
and any and all guarantees, extensions, renewals, replacements and modifications
thereof (collectively, the "Leases"); (b) all deposits (whether for security or
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otherwise), rents, issues, profits, revenues, royalties, accounts, rights,
benefits and income of every nature of and from the Property, including, without
limitation, minimum rents, additional rents, termination payments, forfeited
security deposits and all proceeds payable under any policy of insurance
covering loss of rents resulting from untenantability due to destruction or
damage to the Property, together with the immediate and continuing right to
collect and receive the same, whether now due or hereafter becoming due, and
together with all rights and claims of any kind that Assignor may have against
any tenant, lessee or licensee under the Leases or against any other occupant of
the Property, any award or other payment which Assignor may hereafter become
entitled to receive with respect to any of the Leases as a result of or pursuant
to any bankruptcy, insolvency or reorganization or similar proceedings involving
the tenants under such Leases, and any and all
payments made by or on behalf of any tenant of any part of the Property in lieu
of rent (collectively, the "Rents").
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns.
IT IS AGREED that this Assignment is made upon the following terms,
covenants and conditions:
1. Assignor represents, warrants and covenants to and for the
benefit of Assignee: (a) that Assignor now is (or with respect to any Leases not
yet in existence, will be immediately upon the execution thereof) the absolute
owner of the landlord's interest in the Leases, with full right and title to
assign the same and the Rents due or to become due thereunder; (b) that, other
than this Assignment and those assignments, if any, specifically permitted in
the Deed of Trust, there are no other outstanding assignments of the Leases or
Rents; (c) that no Rents have been anticipated, discounted, released, waived,
compromised or otherwise discharged, except for prepayment of rent of not more
than one (1) month prior to the accrual thereof; (d) that, to Borrower's
knowledge, there are no material defaults now existing under any of the Leases
by the landlord or tenant, and there exists no state of facts which, with the
giving of notice or lapse of time or both, would constitute a material default
under any of the Leases by the landlord or tenant, except as disclosed in
writing to Assignee; (e) that Assignor has and shall duly and punctually observe
and perform all covenants, conditions and agreements in the Leases on the part
of the landlord to be observed and performed thereunder, and (f) the Leases are
in full force and effect and are the valid and binding obligations of Assignor.
2. Notwithstanding that this instrument is a present, absolute and
executed assignment of the Rents and of the Leases and a present, absolute and
executed grant of the powers herein granted to Assignee, Assignor is hereby
permitted, and is hereby granted a revocable license by Assignee, to retain
possession of the Leases and to collect and retain the Rents unless and until
there shall be an Event of Default occurring and continuing under this
Assignment, the Deed of Trust or the other Loan Documents. In the event of the
occurrence and continuance of such Event of Default, the aforementioned license
granted to Assignor shall automatically terminate without notice to Assignor,
and Assignee may thereafter, without taking possession of the Property, take
possession of the Leases and collect the Rents to the extent of Assignor's
interest therein. Further, from and after such termination, Assignor shall be
the agent of Assignee in collection of the Rents to the extent of Assignor's
interest therein, and any Rents so collected by Assignor shall be held in trust
by Assignor for the sole and exclusive benefit of Assignee, and Assignor shall,
within three (3) business days after receipt of any Rents, pay the same to
Assignee to be applied by Assignee as hereinafter set forth. Furthermore, from
and after the occurrence and continuance of such Event of Default and
termination of the aforementioned license, Assignee shall have the right and
authority, without any notice whatsoever to Assignor and without regard to the
adequacy of the security therefor, to: (a) manage and operate the Property, with
full power to employ agents to manage the same; (b) demand, collect, receive and
sue for the Rents, including those past due and unpaid; and (c) do all acts
relating to such management, operation, rental, leasing, repair improvement and
alteration of the Property as Assignee in its sole subjective judgment and
discretion shall determine, subject to rights of the tenants under the Leases or
under agreements not terminated pursuant to the Loan Documents.
Assignee may apply the Rents received by Assignee from the Property, after
deducting the costs of collection thereof, including, without limitation,
reasonable attorneys' fees and a reasonable management fee for any management
agent so employed, against amounts expended for repairs, upkeep, maintenance,
service, fuel, utilities, taxes, assessments, insurance premiums and such other
expenses as Assignee incurs in connection with the operation of the Property and
against interest, principal, required escrow deposits and other sums which have
or which may become due, from time to time, under the terms of the Loan
Documents, in such order or priority as to any of the items so mentioned as
Assignee, in its sole subjective discretion, may determine.
3. Without limiting the rights granted hereinabove, in the event
Assignor shall fail to make any payment or to perform any act required under the
terms hereof and such failure shall not be cured within any applicable grace or
cure period, or if none, within thirty (30) days after receipt of written notice
from Assignee, then Assignee may, but shall not be obligated to, without further
prior notice to or demand on Assignor, and without releasing Assignor from any
obligation hereof, make or perform the same in such manner and to such extent as
Assignee may deem necessary to protect the security hereof, including
specifically, without limitation, appearing in and defending any action or
proceeding purporting to affect the security hereof or the rights or powers of
Assignee, performing or discharging any obligation, covenant or agreement of
Assignor under any of the Leases, and, in exercising any of such powers, paying
all necessary and reasonable costs and expenses, employing counsel and incurring
and paying reasonable attorneys' fees. Any sum advanced or paid by Assignee for
any such purpose, including, without limitation, reasonable attorneys' fees,
together with interest thereon at the Default Interest Rate (as defined in the
Note) from the date paid or advanced by Assignee until repaid by Assignor, shall
immediately be due and payable to Assignee by Assignor on demand and shall be
secured by the Deed of Trust and by all of the other Loan Documents securing all
or any part of the indebtedness evidenced by the Note.
4. 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 of the Leases, nor
shall it operate to make Assignee responsible or liable for any waste committed
on the Property by the tenants, guests or any other party or for any dangerous
or defective condition of the Property or for any negligence in the management,
upkeep, repair or control of the Property. Assignee shall not be liable for any
loss sustained by Assignor resulting from Xxxxxxxx's failure to let the Property
or from any other act or omission of Assignee in managing the Property. This
Assignment shall not be construed as making Assignee a mortgagee in possession.
Assignee is obligated to account to Assignor only for such Rents as are actually
collected or received by Assignee.
5. Assignor shall and does hereby indemnify and hold Assignee
harmless from and against any and all liability, loss, claim, demand or damage
which may or might be incurred by Assignee by reason of this Assignment,
including, without limitation, claims or demands for security deposits from
tenants or guests of space in the Improvements deposited with Assignor, and from
and against any and all claims and demands whatsoever which may be asserted
against Assignee by reason of any alleged obligations or undertakings on its
part to perform or discharge any of the terms, covenants or agreements contained
in any of the Leases, excluding Assignee's gross negligence and willful
misconduct as finally determined by a court of competent
jurisdiction. Should Assignee incur any liability by reason of this Assignment
or in defense of any claim or demand for loss or damage as provided above, the
amount thereof, including, without limitation, costs, expenses and reasonable
attorneys' fees, together with interest thereof at the Default Interest Rate
from the date paid or incurred by Assignee until repaid by Assignor, shall be
immediately due and payable to Assignee by Assignor upon demand and shall be
secured by the Deed of Trust and by all of the other Loan Documents securing all
or any part of the indebtedness evidenced by the Note.
6. Assignor hereby irrevocably appoints Assignee as its
attorney-in-fact which power of attorney is coupled with an interest by virtue
of this Assignment and is irrevocable so long as any sums are outstanding under
the loan evidenced by the Note to, from and after the occurrence and continuance
of an Event of Default by Assignor hereunder or under any of the other Loan
Documents, do, make or perform any act, right or privilege which Assignee shall
have under or by virtue of this Assignment.
7. Assignor covenants and agrees that Assignor shall not, without
the prior written consent of Assignee, further pledge, transfer, mortgage or
otherwise encumber or assign the Leases or future payments of Rents, except as
otherwise expressly permitted by the terms of the Deed of Trust.
8. Assignor covenants and agrees that Assignor shall, at its sole
cost and expense, appear in and defend any action or proceeding arising under,
growing out of, or in any manner connected with the Leases or the obligations,
duties or liabilities of the landlord or tenant thereunder to the extent
necessary to preserve Assignee's material rights under the Leases, and if
Assignor shall fail to do so, Assignee, at its option but without obligation,
may do so. Assignor shall pay on demand all reasonable costs and expenses,
including, without limitation, reasonable attorneys' fees, which Assignee may
incur in connection with Assignee's appearance, voluntary or otherwise, in any
such action or proceeding, together with interest thereon at the Default
Interest Rate from the date incurred by Assignee until repaid by Assignor.
9. At any time, Assignee may, at its option, notify any tenants or
other parties of the existence of this Assignment. Assignor does hereby
specifically authorize, instruct and direct each and every present and future
tenant, lessee and licensee of the whole or any part of the Property to pay all
unpaid and future Rents owed to Assignor to Assignee upon receipt of demand from
Assignee to so pay the same (provided that Assignee shall not make such demand
unless and until an Event of Default shall have occurred and be continuing), and
Assignor hereby agrees that each such present and future tenant, lessee and
licensee may rely upon such written demand from Assignee to so pay said Rents
without any inquiry into whether there exists an Event of Default hereunder or
under the other Loan Documents or whether Assignee is otherwise entitled to said
Xxxxx. Assignor hereby waives any right, claim or demand which Assignor may now
or hereafter have against any present or future tenant, lessee or licensee by
reason of such payment of Rents to Assignee, and any such payment shall
discharge such tenant's, lessee's or licensee's obligation to make such payment
to Assignor.
10. Assignee may take or release any security for the indebtedness
evidenced by the Note, may release any party primarily or secondarily liable for
the indebtedness evidenced by the
Note, may grant extensions, renewals or indulgences with respect to the
indebtedness evidenced by the Note and may apply any other security therefor
held by it to the satisfaction of any indebtedness evidenced by the Note without
prejudice to any of its rights hereunder or under any of the Loan Documents.
11. The acceptance of this Assignment and the collection of the
Rents as herein provided shall be without prejudice to Assignee. The exercise or
failure to exercise by Assignee of the rights granted Assignee in this
Assignment, and the collection of the Rents and the application thereof as
herein provided, shall not be considered a waiver by Assignee of any Event of
Default under the Loan Documents or prevent foreclosure of any liens on the
Property as a result of the occurrence and continuance of an Event of Default,
nor shall such exercise make Assignee liable under any of the Leases, Assignee
hereby expressly reserving all of its rights and privileges under the Deed of
Trust and the other Loan Documents as fully as though this Assignment had not
been entered into. The rights of Assignee hereunder are cumulative and
concurrent, may be pursued separately, successively or together and may be
exercised as often as occasion therefor shall arise, it being agreed by Assignor
that the exercise of any one or more of the rights provided for herein shall not
be construed as a waiver of any of the other rights or remedies of Assignee, at
law or in equity or otherwise, so long as any obligation under the Loan
Documents remains unsatisfied.
12. All rights of Assignee hereunder shall inure to the benefit of
its successors and assigns; and shall pass to and may be exercised by any
assignee of Assignee. All obligations of Assignor shall bind its successors and
assigns and any subsequent owner of the Property. Assignor xxxxxx agrees that if
Assignee gives notice to Assignor of an assignment of said rights, upon such
notice the liability of Assignor to the assignee of the Assignee shall be
immediate and absolute. Assignor will not set up any claim against Assignee or
any intervening assignee as a defense, counterclaim or set-off to any action
brought by Assignee or any intervening assignee for any amounts due hereunder or
for possession of or the exercise of rights with respect to the Leases or the
Rents following the occurrence and continuance of an Event of Default.
13. If any provision under this Assignment or the application
thereof to any entity, person or circumstance shall be invalid, illegal or
unenforceable to any extent, the remainder of this Assignment and the
application of the provisions hereof to other entities, persons or circumstances
shall not be affected thereby and shall be enforced to the fullest extent
permitted by law.
14. This Assignment may not be amended, modified or otherwise
changed except by a written instrument duly executed by Assignor and Assignee.
15. This Assignment shall be in full force and effect continuously
from the date hereof to and until the Deed of Trust shall be released of record,
and the release of the Deed of Trust shall, for all purposes, automatically
terminate this Assignment and render this Assignment null and void and of no
effect whatsoever. This Assignment shall continue and remain in full force and
effect during any period of foreclosure with respect to the Property.
16. In case of a conflict between any provision of this Assignment
and any provision
of the other Loan Documents, the provisions of the Note or the Deed of Trust, if
they shall be the conflicting other Loan Document, shall prevail and be
controlling.
17. All notices, demands, requests or other communications to be
sent by one party to the other hereunder or required by law shall be given and
become effective as provided in the Deed of Trust.
18. THIS ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS SITUATED, EXCEPT TO THE
EXTENT THAT ANY OF SUCH LAWS MAY NOW OR HEREAFTER BE PREEMPTED BY FEDERAL LAW,
IN WHICH CASE SUCH FEDERAL LAW SHALL SO GOVERN AND BE CONTROLLING.
19. Assignor, to the full extent permitted by law, hereby knowingly,
intentionally and voluntarily, with and upon the advice of competent counsel,
waives, relinquishes and forever foregoes the right to a trial by jury in any
action or proceeding based upon, arising out of, or in any way relating to the
debt or any conduct, act or omission of Assignee or Assignor, or any of their
directors, officers, partners, members, employees, agents or attorneys, or any
other persons affiliated with Assignee or Assignor in each of the foregoing
cases, whether sounding in contract, tort or otherwise.
20. This Assignment may be executed in any number of counterparts,
each of which shall be effective only upon delivery and thereafter shall be
deemed an original, and all of which shall be taken to be one and the same
instrument, for the same effect as if all parties hereto had signed the same
signature page. Any signature page of this Assignment may be detached from any
counterpart of this Assignment without impairing the legal effect of any
signatures thereon and may be attached to another counterpart of this Assignment
identical in form hereto but having attached to it one or more additional
signature pages.
21. In addition to, but not in lieu of, any other rights hereunder,
Assignee shall have the right to institute suit and obtain a protective or
mandatory injunction against Assignor to enforce the observance, of the
agreements, covenants, terms and conditions contained herein following the
occurrence and continuance of an Event of Default.
22. Assignee shall, as a matter of absolute right, be entitled, upon
application to a court of applicable jurisdiction, and without notice to
Assignor, to the appointment of a receiver if an Event of Default shall have
occurred and be continuing to obtain and secure the rights of Assignee hereunder
and the benefits intended to be provided to Assignee hereunder.
23. Assignee may sell, transfer and deliver the Note and the Loan
Documents to one or more investors in the secondary mortgage market. In
connection with such sale, Assignee may retain or assign responsibility for
servicing the loan evidenced by the Note or may delegate some or all of such
responsibility and/or obligations to a servicer, including, but not limited to,
any subservicer or master servicer, on behalf of the investors.
24. If Assignee determines at any time to sell, transfer or assign
this Assignment, the
Note, the Deed of Trust and the other Loan Documents, and any or all servicing
rights with respect thereto, or to grant participations therein (the
"Participations") or issue mortgage pass-through certificates or other
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securities evidencing a beneficial interest in a rated or unrated public
offering or private placement (the "Securities"), Assignee may forward to each
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purchaser, transferee, assignee, servicer, participant, investor, or their
respective successors in such Participations and/or Securities (collectively,
the "Investor") or any Rating Agency rating such Securities, each prospective
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Investor and each of the foregoing's respective counsel, all documents and
information which Assignee now has or may hereafter acquire relating to the debt
evidenced by the Note and to Assignor, any guarantor, any indemnitor and the
Property, which shall have been furnished by Assignor, any guarantor or any
indemnitor as Assignee determines necessary or desirable.
25. Notwithstanding anything to the contrary contained in this
Assignment, the liability of Assignor and its officers, directors, general
partners, managers, members and principals for the indebtedness secured hereby
and for the performance of the other agreements, covenants and obligations
contained herein and in the Loan Documents shall be limited as set forth in
Section 2.6 of the Note.
[THE BALANCE OF THIS PAGE WAS LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, Assignor has executed this Assignment as of the day
and year first written above.
ASSIGNOR:
CRIT-VA III, INC.,
a Virginia corporation
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President
COMMONWEALTH OF VIRGINIA
CITY/COUNTY OF Richmond
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The foregoing instrument was acknowledged before me this 15/th/ day of June,
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2001 by Xxxxxxx X. Xxxxxxx, Xx., the Vice President of CRIT-VA III, INC.,
a Virginia corporation, on behalf of said corporation.
[SEAL]
/s/ Xxxxx X. Xxxxxx
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Notary Public
My Commission expires: 10/31/05
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EXHIBIT A
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Legal Description
[OMITTED]
