ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS is made this 27th day of
February, 1996, by XXXXXXXXX'X WHARF XXXXXX, L.P. , a Delaware
limited partnership located at c/o Claremont Management
Corporation, Batterymarch Park II, Quincy, Massachusetts 2169
(the "Borrower"), to HWFP, INC., a Maryland corporation, whose
address is c/o X.X. Xxxxxx Companies, 0000 Xxxxxx Xxxxxxxxx,
Xxxxx 0000, XxXxxx, Xxxxxxxx 00000 (the "Lender");
Borrower is indebted to Lender in the amount of Two Hundred
Twenty-five Thousand Dollars ($225,000) (the "Loan"), evidenced
by a Note made by Borrower dated as of the date hereof (together
with all renewals, extensions, modifications, and substitutions
thereof or therefor, the "Obligation"), and secured by, among
other things, a deed of trust from Borrower to trustees for the
benefit of Lender dated as of the date hereof (the "Deed of
Trust"), which Deed of Trust is to be a first lien upon the
property commonly known as Xxxxxxxxx'x Wharf Xxxxxx, which
property is more fully described in Exhibit "A" hereto (the
"Premises").
As a condition of the granting of the Loan, Borrower has agreed
to assign to Lender all of the rents, issues and profits,
including, without limitation, amounts received from the
periodic rental of boat slips (herein collectively referred to
as "Rents") of and from the Premises, as additional security for
the payment of the Loan.
Therefore, in consideration of the granting of the Loan by
Lender to Borrower, Borrower does hereby sell, pledge, assign,
transfer and set over unto Lender any and all leases, occupancy
agreements, subleases, franchises, contracts, licenses,
agreements and other understandings, heretofore or hereafter
made, regardless of whether written or oral, and any extensions
or renewals thereof, of or relating to the Premises or any part
thereof (the "Assigned Leases"), and all of the Rents and other
proceeds of and from the Premises, including, but not limited
to, any insurance proceeds heretofore or hereafter paid by
reason of any use or occupancy loss, business interruption or
interruption of rental payments under the Assigned Leases or any
part thereof (herein referred to as the "Rental Insurance Proceeds").
This constitutes a present assignment of the Assigned Leases,
Rents and other proceeds described above. Nevertheless, so long
as no Event of Default (as defined in the Deed of Trust) has
occurred under the terms of the Deed of Trust, or under any
other instruments or documents now or hereafter executed or
delivered in connection with the Loan (collectively, the "Loan
Documents"), Borrower shall have a license to collect, receive
and apply for its own account all Rents accruing by virtue of
the Assigned Leases or from or out of the Premises or
any part thereof, and deliver proper receipts and acquittances
therefor.
Immediately upon the occurrence of an Event of Default under
the Deed of Trust or any of the other Loan Documents the license
hereinbefore referred to shall terminate and this Assignment
shall remain operative and in full force and effect upon the
occurrence and during the continuance of any such default, upon
the following terms and conditions:
1. In furtherance of the foregoing Assignment, Borrower hereby
authorizes Lender by its employees or agents, at its option,
after the occurrence of an Event of Default as aforesaid, to
enter upon the Premises and to demand, collect, xxx for, attach,
levy, recover, receive, compromise and adjust, make, execute and
deliver proper receipts and releases for and in the name of
Borrower or in its own name as Assignee, (a) Rents accrued but
unpaid and in arrears at the date of such default, as well as
Rents thereafter accruing and becoming payable; and to this end,
Borrower further agrees that it will facilitate in all
reasonable ways Lender's collection of Rents and will, upon
request by Lender, execute a written notice to the tenants of
Borrower (including, without limitation, commercial tenants and
persons renting boat slips) directing the tenant- shareholders
and such other tenants to pay Rents to Lender, and; (b) all
Rental Insurance Proceeds paid or thereafter to be paid by
reason of any use or occupancy loss, business interruption or
interruption of rental payments under the Assigned Leases or any
part thereof, or any leases, subleases, franchises, contracts,
licenses, agreements or other understandings thereafter entered
into affecting the Premises or any part thereof.
2. Borrower also hereby authorizes Lender upon such entry, at
its option, to take over and assume the management, operation
and maintenance of the Premises, including without limitation,
the right to: (i) cause the Premises to be operated, maintained
and repaired, and in connection therewith to hire and pay
security personnel, contractors and other maintenance and
operating personnel, and enter into contracts and agreements
with contractors, materialmen and suppliers; (ii) purchase
public liability, fire and extended coverage insurance, and any
other types of insurance coverage; (iii) hire and engage a
managing agent, and engineers, architects, accountants and
attorneys; (iv) institute and prosecute suits for the collection
of Rents; (v) lease any part of the Premises; and (vi) pay all
taxes, insurance premiums, wages, salaries, commissions, fees,
expenses and charges of every kind and amount arising out of or
in connection with the foregoing (collectively the "Expenses");
all to the same extent as Borrower might do, Borrower hereby
releasing all claims against Lender arising out of such
management, operation and maintenance, except claims resulting
from Lender's gross negligence or willful misconduct.
3. Lender shall, after payment of all Expenses and after the
accumulation of a reserve to meet taxes, assessments, water and
sewer rents, and fire and liability insurance premiums in requisite
amounts, credit the net amount of income received by
it from the Premises by virtue of this Assignment to any amounts
due and owing to it by Borrower under the terms of the Deed of
Trust, the Obligation secured thereby and the other Loan Documents,
but the manner of this application of such net
income and what items shall be credited shall be determined in the
sole discretion of Lender. Lender shall not be accountable for
more money than it actually receives from the Premises.
4. Irrespective of the existence or occurrence of a default
under the Deed of Trust or any of the other Loan Documents,
Borrower hereby covenants and warrants to Lender that it has not
executed for the benefit of any person or corporation (other
than Lender) any other assignment or pledge of Rents of the
Premises, nor any assignment or pledge of its interest in any
lease pertaining to the Premises. Borrower also hereby
covenants and agrees not to make any further assignment or
pledge of Rents of the Premises or its interest in any lease
therein (except as may otherwise be agreed to by Lender in
writing), not to collect Rents of the Premises more than one (1)
month in advance (except with respect to the rental of boat
slips, which rent may not be collected more than one (1) year in
advance), and not to effect any modification of any leases nor
do any other act which would destroy or impair the benefits of
Lender under this Assignment.
5. Any demand by Lender of any tenants of Borrower for Rents
pursuant to this Assignment shall be sufficient authorization
for said tenants to pay to Lender Rents owing by them pursuant
to their leases, and it shall not be necessary for Lender to
obtain from Borrower any further authorization or direction to
tenants to pay Rents to Lender, nor shall it be required of
Lender to establish to the satisfaction of the tenants that the
prerequisite default exists.
6. Lender shall not be liable for any loss sustained by
Borrower resulting from Lender's failure to let the Premises
after default or from any other act or omission of Lender in
managing the Premises after default, except for losses resulting
from Lender's gross negligence or willful misconduct. Nor shall
Lender be obligated to perform or discharge, nor does Lender
hereby undertake to perform or discharge, any obligation, duty
or liability under any Assigned Leases or under or by reason of
this Assignment, and Borrower shall and does hereby agree to
indemnify Lender for and to hold Lender harmless from and
against any and all loss, cost, damage, expense,
claim or liability which may or might be incurred under any
Assigned Lease or under or by reason of this Assignment, and
from and against any and all claims and demands whatsoever which
may be asserted against Lender 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
Assigned Lease.
Should the Lender incur any such liability under any Assigned
Lease, or under or by reason of this Assignment, or in defense
of any such claim or demand, the amount thereof, including
costs, expenses and reasonable attorneys' fees, shall be secured
hereby and Borrower shall reimburse Lender therefor immediately
upon demand. It is further understood that this Assignment
shall not operate to place responsibility for the control, care,
management or repair of the Premises upon Lender, nor for the
carrying out of any of the terms and conditions in any Assigned
Lease, nor shall it operate to make Lender responsible or liable
for any waste committed on the Premises by the shareholders,
tenants, occupants or any other person, or for any dangerous or
defective condition of the Premises, or for any negligence in
the management, upkeep, repair or control of the Premises,
resulting in loss or injury or death to any shareholder, tenant,
occupant, licensee, employee or stranger.
7. It is not the intention of the parties hereto that any entry
by Lender upon the Premises under the terms of this Assignment
shall render Lender a "mortgagee in possession" in contemplation
of law, except at the option of Lender.
8. Nothing herein shall be construed as a limitation upon or
variance of the terms, conditions, covenants and agreements as
contained in the Deed of Trust, the Obligation or the other Loan
Documents, and, in particular, the rights of Lender in case of
default as therein set forth shall not be, in any manner, waived
by this Assignment or the collection of Rents hereunder.
9. This Assignment shall remain in full force and effect as
long as any sums due under the Obligation, the Deed of Trust or
any other Loan Document shall remain unpaid in whole or in part.
10. Whenever used, the singular number shall include the
plural, the plural the singular, and the use of any gender shall
be applicable to all genders.
11. The provisions of this Assignment shall be binding upon
Borrower and its legal representatives, successors and assigns,
and shall inure to the benefit of Lender and any subsequent
holder of the Obligation. This Assignment shall be governed by
the laws of the state in which the Premises are located without
giving effect to the principles of conflicts of laws. This
Assignment may not be modified or amended, except by a written
instrument signed by the person against whom such modification
or amendment is sought to be enforced.
IN WITNESS WHEREOF, Borrower has hereunto executed this
Assignment.
WITNESS OR ATTEST: XXXXXXXXX'X WHARF XXXXXX, L.P.
a Delaware limited partnership
[CORPORATE SEAL]
By: Xxxxxxxxx'x Wharf Development Corporation,
a Delaware corporation, its sole general
partner
By:
Xxxxxxxx X. Xxxxxxxx,
President
County of _______________ )
) SS:
State of Maryland )
Before me, a Notary Public in and for the jurisdiction
aforesaid, personally appeared this date XXXXXXXX X.XXXXXXXX,
personally well known (or satisfactorily proven) to me to be the
president of Xxxxxxxxx'x Wharf Development Corporation, which is
the sole general partner of XXXXXXXXX'X WHARF MARINA, L.P., a
Delaware limited partnership, who, being by me first duly sworn,
did acknowledge that he, being authorized so to do, executed the
foregoing and annexed Instrument dated _________________, in the
name and on behalf of said corporation, which is the general
partner of XXXXXXXXX'X WHARF XXXXXX, L.P., as its free act and
deed for the uses and purposes therein contained.
WITNESS my hand and official seal this day of
_______________, 199_ .
Notary Public
[Notarial Seal]
My Commission Expires
THIS IS TO CERTIFY that the within instrument was prepared by
or under the supervision of the undersigned, an attorney duly
admitted to practice before the Court of Appeals of Maryland.
_________________
Xxxxxx X Xxxxxx, Esq.
EXHIBIT A
