EXHIBIT 10.14(b)
ASSIGNMENT OF RENTS AND LEASES
This Assignment made this 28th day of June, 1988 (together with all
amendments and supplements hereto, hereinafter called this "Assignment"), by
CHESTERFIELD PLAZA JOINT VENTURE, a Maryland general partnership (hereinafter
called the "Assignor") to American United Life Insurance Company, an Indiana
corporation, having its principal offices at Indianapolis, Indiana and an
address at Post Office Box 368, Indianapolis, Indiana 46206 (hereinafter called
the "Assignee"), WITNESSETH, that:
FOR VALUE RECEIVED, the Assignor hereby conveys, assigns, transfers and
sets over to the Assignee all right, title and interest of the Assignor in and
to certain Leases described on Exhibit B hereto, leasing real estate and
improvements lying and being in the County of Xxxx Xxxxxxx, State of Maryland,
more particularly described follows, to-wit: Being the Chesterfield Plaza
Shopping Center described on Exhibit A attached hereto and hereby made a part
hereof:
(hereinafter called the "Premises"); together with all rents, income and other
sums payable thereunder or otherwise for the use and occupation of the Premises
and without limitation, all options, amendments, extensions or renewals thereof
and guarantees of lessee's obligations under the Lease.
This Assignment is given as security for (a) payment of all sums due under
a certain promissory note and all amendments, extensions or renewals thereof, in
the principal sum of $3,800,000.00 made by the Assignor to the Assignee,
(hereinafter called the "Note") and secured by a Deed of Trust dated August 19,
1986, as amended by a Consolidation, Modification and Extension Agreement of
even date herewith on the Premises (hereinafter called the "Mortgage"); (b)
payment of all other sums with interest becoming due and payable to the Assignee
under the provisions of this Assignment or the Note or the Mortgage; and (c)
performance and discharge of each obligation, covenant and agreement of the
Assignor contained herein or in the Note and the Mortgage. Acceptance of this
Assignment shal1 not impair, affect or modify any of the terms or conditions of
the Note or the Mortgage.
The Assignor covenants and agrees with the Assignee as follows:
1. The Assignor will:
(a) fulfill and perform each and every obligation, condition and
covenant of the Lease by lessor to be fulfilled and performed;
(b) give prompt notice to the Assignee of any notice of default in
the Lease received by the Assignor, together with a complete copy
of any such notice;
(c) at the sole cost and expense of the Assignor, enforce, short of
termination of the Lease, the performance or observance of each
and every covenant and condition of the Lease and of any
guarantee of lessee's obligations thereunder by the lessee or
guarantor to be performed or observed; and
(d) from time to time, execute any and all instruments requested by
the Assignee to carry this Assignment into effect or to
*Whenever used herein, "Lease" shall refer to all Leases listed on Exhibit B and
all amendments thereto.
accomplish any other purposes deemed by the Assignee to be
necessary or appropriate in connection with this Assignment or
the Premises, including, without limitation, specific assignments
of the Lease and any guarantee thereof or any agreement relating
to use or occupancy of the Premises or any part thereof now or
hereafter in effect.
2. The Assignor will not, without first securing the written consent of
the Assignee:
(a) reduce rents and otherwise modify or in any way alter the terms
of the Lease or of any guarantee of lessee's obligations
thereunder;
(b) cancel or terminate the term of the Lease or accept a surrender
thereof or permit to be done anything to impair the security
thereof or of any guarantee of lessee's obligations thereunder;
(c) waive or release the lessee in the Lease or any guarantor thereof
from any obligation or condition by the lessee or guarantor to be
performed;
(d) exercise options or give consent to assignment or subletting or
other requests of lessee under terms of the Lease;
(e) execute any other assignment of xxxxxx's interest in the Lease or
any guarantee of xxxxxx's obligations thereunder or assignment of
rents arising or accruing from the Lease or from the Premises; or
(f) enter into any settlements for breach of obligations by lessee or
any guarantor under the Lease.
3. The rights assigned hereunder include, without limitation, all the
rights and powers of the Assignor to exercise options under the Lease
or give consents thereunder, or to reduce rents or otherwise modify or
alter the Lease or any guarantee thereof, or to cancel or terminate
the term of the Lease or accept a surrender thereof, or to accept or
reject an offer or option to purchase made by lessee under terms of
the Lease, if any, or to waive, or release the lessee from, the
performance or observance by lessee of any obligation or condition of
the Lease
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or any guarantee thereof, or to collect rents and other sums payable
by lessee under the Lease, and to sue lessee or any guarantor of
lessee's obligations for all such unpaid rents and other sums or to
collect sums payable by lessee as the purchase price for the Premises
under terms of the Lease, or to enter into any settlements with leasee
or any guarantor for breach of obligations in the Lease by lessee. And
the Assignor hereby irrevocably appoints the Assignee his
attorney-in-fact to indorse all checks, money orders or other paper
evidencing rents under the Lease herein assigned, on which the
Assignor appears as a payee thereof.
4. At the sole cost and expense of the Assignor, the Assignor will appear
in and defend any action growing out of or in any manner connected
with the Lease or the obligations or liabilities of the lessor, the
lessee, or any guarantor thereunder.
5. Should the Assignor fail to do any act as herein provided, then the
Assignee, but without obligation so to do and without notice to or
demand on the Assignor and without releasing the Assignor from any
obligation herein, may make or do the same, including specifically,
without limiting its general powers, appearing in and defending any
action purporting to affect the security hereof or the rights or
powers of the Assignee and performing any obligation of the lessor in
the Lease contained, and in exercising any such powers paying
necessary costs and expenses, employing counsel and incurring and
paying reasonable attorney's fees; and the Assignor will pay
immediately upon demand all sums expended by the Assignee under the
authority hereof, together with interest from date of any such
expenditure at the rate of e1even percent (11%) per annum (or at such
lesser rate of interest as may be the maximum not prohibited by
applicable law), and the same shall be so much additional indebtedness
secured hereby and by the Mortgage.
6. This Assignment is effective immediately but Assignor shall have the
privilege of collecting rents until the existence of a default or
event of default in the Note or the Mortgage. As such, the Assignor
hereby directs the tenants named in the Leases to pay all rentals and
other sums that may hereafter become due in respect of the Lease to
the Assignee, or to such of the representatives of the Assignee as it
shall designate by written request to the lessee, commencing with
rental next due and payable and continuing until the Mortgage
indebtedness is paid in full or until the Assignee shall have notified
the lessee, in writing, to discontinue such payments. All rentals
shall be held without allowance of interest, and shall be applied to
the following purposes, but not necessarily in the order named,
priority and application of such funds being within the sole
discretion of the Assignee:
(a) to the payment of installments of principal and interest on the
Note as and when the same become due and payable;
(b) to the payment of all other sums due the Assignee or otherwise
payable by the Assignor under the Note and the Mortgage or under
the provisions of this Assignment; and
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(c) any amounts not applied as above provided will be refunded by
Assignee to the Assignor, provided no default then exists in any
term or condition of the Note or the Mortgage or this Assignment.
The Assignor shall have no right or claim of any nature against the
lessee in the Lease for any rents or other sums so paid by lessee to
the Assignee or to the representatives of the Assignee under this
Assignment.
7. Upon or at any time after default in the payment of any indebtedness
evidenced by the Note or secured hereby or by the Mortgage, or in the
performance of any term, provision, condition, obligation, covenant or
agreement herein or in the Note or the Mortgage contained, and the
expiration of the period of grace, if any, with respect to any such
default as provided for in the Note or the Mortgage, the Assignee may,
at its option, without notice, either in person or by agent, with or
without bringing any action or proceeding, or by a receiver to be
appointed by a court, enter upon, take possession of, and manage and
operate the Premises and each and every part and parcel thereof; and
in connection therewith, the Assignee may make, cancel, enforce or
modify the Lease or any guarantee thereof, fix or modify rents,
repair, maintain and improve the Premises, employ contractors,
subcontractars and workmen in and about the Premises, obtain and evict
tenants, in its own name, sue for or otherwise continue to collect or
reserve any and all rents, issues and profits, including those past
due and unpaid, employ leasing agents, managing agents, attorneys and
accountants in connection with the enforcement of the rights of the
Assignee hereunder and pay the reasonable fees and expenses thereof,
and otherwise do and perform any and all acts and things which the
Assignee may deem necessary or appropriate in and about the Premises
or the protection thereafter or the enforcement of the rights of the
Assignee hereunder or under the Note or the Mortgage; and any and all
amounts expended by the Assignee in connection with the foregoing
together with interest thereon from date of payment of any such
expense at the rate of eleven percent (11%) per annum (or at such
lesser rate of interest as may be the maximum not prohibited by
applicable law), shall constitute so much additional indebtedness
secured hereby and by the Mortgage. The Assignee shall apply any
movies collected by the Assignee, as aforesaid, less costs and
expenses incurred, as aforesaid, upon any indebtedness secured hereby
in such order and manner as the Assignee may determine. The entering
upon and taking possession of the Premises, the collection of rents,
issues and profits, the exercise of any of the rights hereinabove
specified and the application of collections, as aforesaid, shall not
cure, waive, modify or affect any default or notice of default
hereunder or under the Note or the Mortgage.
8. The Assignee shall not be liable for failure to collect rents or other
sums assigned hereunder or to enforce performance by xxxxxx or any
guarantor under the Lease or for any act or omission of the Assignee
in managing the Premises after default unless such loss is caused by
the willful misconduct and bad faith of the Assignee.
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Nor shall the Assignee be obligated to perform or discharge, nor does
the Assignee undertake to perform or discharge, any obligation, duty
or liability under the Lease or any guarantee thereof or under or by
reason of this Assignment. The Assignor hereby agrees to indemnify the
Assignee against and hold it harmless from any and all liability, loss
or damage which it may incur under the Lease or any guarantee thereof,
or under or by reason of this Assignment and of and from any and all
claims and demands whatsoever which may be asserted against it by
reason of any alleged obligation or undertaking on its part to perform
or discharge any of the terms of the Lease or any such guaranty.
Should the Assignee incur any such liability, loss or damage under the
Lease or any guarantee thereof or any guarantee thereof, or under or
by reason of this Assignment, or in defense against any such claims or
demands, the amount thereof, including costs, expenses and reasonable
attorneys' fees, together with interest thereon from date of any such
payment at the rate of eleven percent (11%) per annum (or at such
lesser rate of interest as may be the maximum not prohibited by
applicable law), shall be secured hereby and by the Mortgage, and the
Assignor shall reimburse the Assignee therefor immediately upon
demand. And it is further understood that this Assignment shall not
operate to place responsibility for the control, care, management, or
repair of said Premises upon the Assignee, nor for the carrying out of
any of the terms and conditions of the Lease or any guarantee thereof;
nor shall it operate to make the Assignee responsible or liable for
any waste committed on the Premises by any lessee or any other party
or for any dangerous or defective condition of the Premises, nor for
any negligence (other than willful negligence of the Assignee) in the
management, upkeep, repair, or control of the Premises resulting in
loss or injury or death to any lessee, licensee, employee, or
stranger,
9. The Assignor represents and warrants that: (a) the Assignor has not
executed any prior assignment of any of its rights under the Lease or
any guarantee thereof; (b) the Lease and any guarantee of lessee's
obligations thereunder are valid and enforceable and the Assignor has
not done anything which might prevent the Assignee from or limit the
Assignee in operating under any of the provisions of this Assignment;
(c) rent under the Lease has not been collected in advance of the time
when the same became due under terms of the Lease; (d) there is no
present default by the lessee or lessor under the Lease or by any
guarantor thereof; (e) the Assignor is the sole owner of the entire
lessor's interest in the Lease and the guaranty, if any; and (f) the
Lease and any guarantee thereof are in full force and effect and have
not been altered, amended or modified except such amendments as may be
set out in the Mortgage.
10. The Assignee may take or release other security for the payment of the
indebtedness hereby secured; may release any party primarily or
secondarily liable therefor; and may apply any other security held by
it to the satisfaction of such indebtedness without prejudice to any
of its rights under this Assignment.
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11. Nothing contained in this Assignment and no act done or omitted by the
Assignee pursuant to the powers and rights granted it hereunder shall
be deemed to be a waiver by the Assignee of its rights and remedies
hereunder or under the Note and the Mortgage, and this Assignment is
made and accepted without prejudice to any of the rights and remedies
possessed by the Assignee under the terms of the Note and the
Mortgage. The right of the Assignee to collect said indebtedness
hereby secured and to enforce any other security therefor held by it
may be exercised by the Assignee either prior to, simultaneously with,
or subsequent to any action taken by it hereunder.
12. In case of any conflict between the terms of this Assignment and the
terms of the Mortgage, the terms of the Mortgage shall prevail.
13. This Assignment embodies the entire agreement and understanding
between the parties relating to the subject matter hereof and may not
be amended or waived except by an instrument in writing executed by
the party against whom enforcement of such amendment or waiver is
sought. If any clauses or provisions herein contained would invalidate
this Assignment in whole or in part, such clauses or provisions only
shall be invalid, and the remainder of this Assignment will remain in
full force and effect.
14. All notices or demands which are required or permitted to be given or
served hereunder shall be in writing and sent by certified or
registered or first class mail at the address first above set out or
to such other address as any party hereto shall designate to the other
in writing.
15. The term "Lease" as used herein means the Lease heretofore defined and
hereby assigned and any amendment, extension or renewal thereof now or
hereafter executed and, at the option of the Assignee, any written or
oral lease subsequently executed during the term of this Assignment
covering the Premises or any part thereof.
16. This Assignment, together with the covenants and warranties herein
contained, shall inure to the benefit of the Assignee and any
subsequent holder of the Note and the Mortgage and shall be binding
upon the Assignor, his heirs, executors, administrators, successors,
and assigns and any subsequent owner of the Premises. If more than one
person or entity has executed this Assignment as the Assignor, the
term "Assignor" shall include all such persons and the obligations of
all such persons shall be joint and several. In this Assignment,
whenever the context so requires, the masculine, feminine or neuter
genders shall include the other genders and the singular number
includes the plural and the plural the singular.
17. This Assignment may be executed in any number of counterparts, each of
which shall be an original but all of which shall constitute one
instrument.
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18. The Assignor shall not be personally liable for payment of the Note
and other indebtedness herein and in the Mortgage secured nor for
performance of obligations hereunder and the Assignee agrees to look
solely to the Premises and other security herein for the repayment of
such indebtedness. Nothing in this clause shall be construed in any
way as limiting the obligations of the Assignor as lessor under the
Lease or as relieving the Assignor from liability for any materially
untrue representation or warranty herein or in the Note or the
Mortgage or any other document securing the Note.
Upon the payment in full of the Note and all indebtedness secured hereby and by
the Mortgage, as evidenced by the recording or filing of an instrument of
conveyance, satisfaction or full release of the Mortgage, this Assignment shall
automatically become and be void and of not effect.
IN WITNESS WHEREOF, the Assignor has executed this Assignment on the day and
year first above written.
CHESTERFIELD PLAZA JOINT VENTURE
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Printed: Xxxxxx X. Xxxxxxx
Title: Managing Partner
(Seal)
WITNESS:
/s/ Xxxx Xxxxx
----------------------------
Printed: Xxxx Xxxxx
Title:
---------------------
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EXHIBIT A
PROPERTY DISCRIPTION
ALL that tract or parcel of land located in Xxxx Arundel County, State of
Maryland, and more particularly described as follows:
BEGINNING for the same at point no. 4097 on the Southernmost right-of-way
line of Old Crown Drive (60 feet wide right-of-way) as shown on an un-recorded
plat entitled Phase One, "Chesterfield 4" (sheet 3 of 7), intended to be
recorded among the Plat Records of Xxxx Xxxxxxx County, Maryland, running thence
with and binding on said right-of-way line, and referring the courses of the
description contained herein to the Maryland State Grid Meridian,
(1) North 56 degrees 54 minutes 09 seconds East 35.26 feet,
(2) South 77 degrees 56 minutes 45 seconds East 45.00 feet,
(3) 220.92 feet along the arc of a curve to the right, having a radius of
3660.18, and being subtended by a chord of South 76 degrees 13 minutes 00
seconds East 220.89 feet, and
(4) South 74 degrees 29 minutes 15 seconds East 381.22 feet, thence leaving
the right-of-way line of Old Crown Drive and running with and binding on the
division line between the parcel now being described and a plat entitled
preliminary plan of "Jacobsville", recorded among the Plat Records of Xxxx
Arundel County, Maryland in Plat Book 2, Page 2, Plat No. 252,
(5) South 12 degrees 55 minutes 56 seconds West 492.06 feet, thence leaving
the outline of the aforementioned plat of Jacobsville and running with and
binding on the division line between the parcel now being described and the
property of Xxxxxxx X. Xxxxxx, recorded among the Land Records of Xxxx Xxxxxxx
County, Maryland in Liber F.S.R. 42, Folio 292,
(6) North 67 degrees 38 minutes 48 seconds West 117.59 feet, thence leaving
said Xxxxxx Property and running with and binding on the division line between
the parcel now being described and an un-recorded plat entitled "X. Xxxxx Xxxxxx
Subdivision",
(7) North 69 degrees 54 minutes 30 seconds West 529.13 feet to a point on
the Easternmost right-of-way line of Tick Neck Road - Phase II as shown on the
Xxxx Arundel County Department of Public Works Right-of-Way Plat No. 14977-1,
thence running with and binding on said right-of-way line as shown on the
aforementioned plat and plat no. 14978,
(8) 158.09 feet along the arc of a curve to the right, having a radius of
11409.20 feet, and being subtended by a chord of North 10 degrees 09 minutes 26
seconds East 158.09 feet,
(9) North 06 degrees 44 minutes 57 seconds East 199.82 feet, and
(10) 44.69 feet along the arc of a curve to the right, having a radius of
11424.20 feet, and being subtended by a chord of North 11 degrees 39 minutes 59
seconds East 44.69 feet to the place of beginning,
CONTAINING 6.920 acres of land, more or less.
BEING part of that parcel of land which by deed dated March 20, 1978, and
recorded among the Land Records of Xxxx Xxxxxxx County, Maryland in Liber W.G.L.
3062 at Folio 888, was granted and conveyed by Oriole Homes Corp. to the
Chatterleigh Limited Partnership.
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EXHIBIT B
CHESTERFIELD PLAZA SHOPPING CENTER TENANTS
Xxxxxx Enterprises, Inc. t/a Little Ceasars
Rite-Aid of Maryland, Inc.
Bach Enterprises, Inc. t/a Village Cleaners
Xxxxxxxx Florist, Inc.
Casablanca Hair Ltd.
P. A. & S. Small Company
Chesapeake Federal Savings and Loan Association
T100:TENANTS
060788
