After recordation, this instrument
should be returned to:
Xxxxxxx X. Xxxxxx, Esq.
Aid Association for Lutherans
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
ASSIGNMENT OF RENTS AND LEASES
THIS ASSIGNMENT OF RENTS AND LEASES (hereinafter
referred to as this "Assignment") made and effective as of the 27th
day of February, 1996, by XXXXXXXXX'X WHARF BALTIMORE L.P., a
Delaware limited partnership, with an address at c/o Claremont
Management Corp., Xxxxxxxxxxxx Xxxx XX, Xxxxxx, Xxxxxxxxxxxxx 00000,
(hereinafter referred to as "Assignor") to AID ASSOCIATION
FOR LUTHERANS, a Wisconsin corporation, with an address at 0000
Xxxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx 00000 (hereinafter
referred to as "Assignee");
W I T N E S S E T H :
WHEREAS, concurrently with the delivery hereof,
Assignee has loaned and advanced to or on behalf of HISTORIC PRESERVATION
PROPERTIES 199O L.P. TAX CREDIT FUND, a Delaware limited
partnership ("Borrower") the sum of $6,000,000, and Borrower
has made and delivered to Assignee a Deed of Trust Note
(hereinafter referred to as the "Note") in the principal amount of
$6,000,000; and
WHEREAS, Assignor is the owner of certain real property
(the "Property") located in Baltimore City, Maryland, and more
particularly described in Exhibit A, which is attached
hereto and hereby incorporated herein; and
WHEREAS, the Note is guaranteed by, among other things,
a certain Guaranty (the "Guaranty") of even date from Assignor
for the benefit of Assignee; and
WHEREAS, as security for the Guaranty, Assignor has,
concurrently with the execution and delivery hereof,
executed and delivered to Assignee an Indemnity Deed of Trust and
Security Agreement (hereinafter referred to as the "Deed of Trust"),
of even date herewith, encumbering the Property (this Assignment,
the Deed of Trust, the Guaranty and all other documents and
agreements heretofore, herewith, or hereafter given as security for the
Note and the loan or loans represented thereby being hereinafter
referred to collectively as the "Loan Documents" and
sometimes singularly as a "Loan Document"); and
WHEREAS, as further security for the Note and the
Guaranty, Assignor and Assignee desire that Assignor assign to
Assignee all of the right, title, and interest of Assignor in, to, and
under any and all leases and agreements for the use or occupancy of
the Property, or any part thereof, whether now or hereafter
existing, and Assignor desires and intends by this instrument to
assign to Assignee all of the right, title, and interest of Assignor
in, to, and under any and all such leases and agreements; and
WHEREAS, all acts and proceedings required by law and
by the partnership agreement of Assignor necessary to make the
Guaranty, the Deed of Trust, this Assignment, and the other Loan
Documents to which Assignor is a party the valid, binding, and legal
obligations of Assignor and all acts and proceedings required by law and
by the partnership agreement of Assignor to constitute this
Assignment a valid, binding, and legal encumbrance upon the Property,
subject only to the lien of the Deed of Trust and the permitted
exceptions as defined in the Deed of Trust, have been done and taken,
and the execution and delivery by Borrower of the Note and by
Assignor of the Deed of Trust, the Guaranty, this Assignment, and the
other Loan Documents have been in all respects duly authorized;
NOW, THEREFORE, in consideration of the premises, one
dollar in hand paid, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
and in order to secure the payment of the principal, interest, and
premium, if any, under the Guaranty and the Note and to
secure the performance by Assignor of each and every term, covenant,
agreement, and condition contained herein, in the Guaranty,
in the Deed of Trust, and in the other Loan Documents, Assignor,
being legally advised in the premises and intending to be legally
bound hereby, does hereby covenant, promise, and agree as follows,
to- wit:
ARTICLE I
ASSIGNMENT; SECURITY
1.1. Assignment. Assignor does hereby sell, assign,
transfer, and set over unto Assignee, its successors and
assigns, all of the right, title, and interest of Assignor in, to,
and under the leases and agreements, for the use or occupancy of the
whole or any part of the Property, whether such leases and agreements
are now or at any time hereafter existing (all such leases and
agreEments for the use or occupancy of the whole or any part
of the Property being hereinafter referred to collectively as the
"Leases" and sometimes singularly as a "Lease"), including all
amendments of, supplements to, and renewals and extensions of the
Leases at any time made; together with all rents, earnings, income,
issues and profits arising from the Property or from the Leases and
all other sums due or to become due under and pursuant thereto;
together with any and all guarantees of or under any of the
Leases; together with all proceeds payable under any policy of
insurance covering loss of rents under any Lease for any cause;
together with all proceeds of and rights of Assignor in connection with
any condemnation proceeding, exercise of the right of eminent
domain, sale in lieu of condemnation or eminent domain, or
alteration of the grade of any street affecting the Property or any part
thereof; together with all tax refunds, rebates, and returns relating
to the Property or any part thereof; together with all rights,
powers, privileges, options, and other benefits of Assignor, as
lessor under the Leases, including, but not by way of limitation,
(a) the immediate and continuing right to receive and collect all
Rents (as hereinafter defined), (b) the right to accept or reject any
offer made by the tenant pursuant to its Lease to purchase the
Property, or any part thereof, and/or any other property subject to
the Lease as therein provided and to perform all other necessary or
appropriate acts with respect to such purchases as agent and
attorney-in-fact for Assignor, and (c) the right to make all
waivers, agreements, and settlements, to give and receive
all notices, consents, and releases, to take such action upon
the happening of a default under any Lease, including the
commencement, conduct, and consummation of proceedings at law or in equity
as shall be permitted under any provision of any Lease or by
law, and to do any and all other things, whatsoever, which Assignor
is or may become entitled to do under the Leases; and together
with all other rights, powers, privileges, options, and benefits of
Assignor in connection with the Property, including, but not by way
of limitation, the right to use and possession of the Property,
and all parts thereof, and all personal property located on or
used or usable in connection therewith, all parking lot fees, liquor
licenses, building permits, zoning variances, plans,
specifications, and contracts with architects, contractors,
and subcontractors; SUBJECT, however, to the right and license
hereinafter granted by Assignee to Assignor.
For purposes herein the definition of "Rents" or
"Rent" as used in this Assignment shall mean: all of the rents,
revenues, income, profits and other benefits arising from the use and
enjoyment of all or any portion of the Property, including,
but not limited to, (i) all rents, income and profits due or to
become due under the Leases, or any of them; (ii) all security
deposits, advance rentals, and similar payments to Assignor under the
Leases, or any of them; (iii) any payments in lieu of rent made by
any lessee under a Lease; (iv) all sums to which Assignor may
become entitled in any court proceeding involving any lessee under
a Lease in any bankruptcy, insolvency, or reorganization proceedings
in any state or federal court; (v) any payments to Assignor under
any guaranty or surety agreement with respect to the obligations
of any lessee under a Lease; and (vi) any condemnation award,
administrative rents, use and occupancy payments, damages,
moneys, and security payable to or receivable by Assignor under or
with respect to any Lease.
1.2. Security. This Assignment shall remain in full
force and effect until, (i) the payment in full of all principal,
interest, and premium, if any, on the Note and (ii) the full
and complete performance and observance by Assignor of all of
the terms, covenants, and conditions to be performed or observed
by Assignor under the Guaranty, this Assignment, the Deed of
Trust, And the other Loan Documents.
ARTICLE II
REPRESENTATIONS; COVENANTS; WAIVERS
2.1. Representations and Warranties. Assignor hereby
represents and warrants to Assignee that the Leases
described in the Borrower's and Guarantor's Affidavit and Solvency
Certificate dated as of even date herewith and delivered to Assignee are
each and all in full force and effect, without amendment or
modification, oral or written, except as described in said
Affidavit; that no default exists under any such Lease and
no condition exists thereunder which, with the giving of notice
or the passing of time, or both, would constitute such a default;
that true and correct copies of all such Leases and amendments
thereof have been delivered to Assignee; that such Leases constitute
all of the Leases relating to the use or occupancy of the Property,
or any part thereof, as of the date hereof; that Assignor has good
right and authority to make this Assignment; that Assignor has not
heretofore alienated, assigned, pledged, or otherwise
disposed of or encumbered any Leases, or any of the sums due or to
become due thereunder; that Assignor has not performed any acts or
executed any other instruments which might prevent Assignee from
operating under any of the terms and conditions of this Assignment or
which would limit Assignee in such operation; that all
improvements and leased space demised and let pursuant to each Lease has been
completed to the satisfaction of all of the tenants thereof;
that all tenants have accepted possession of such leased space
and are open for business; and that Assignor has not accepted or
collected Rent or any other payments under any Lease for any period
subsequent to the current period for which such Rent or
other payment has already become due and payable.
2.2. Affirmative Covenants. Assignor hereby covenants
and agrees that it will:
(a) upon default hold in trust in a trust account
for the benefit of Assignee all Rents not applied towards
necessary operating expenses or repairs of the Property
or not immediately paid to Assignee;
(b) observe, perform, and discharge, duly and
punctually, all and singular, the obligations, terms,
covenants, conditions, and warranties of the Guaranty,
THis Assignment, the Deed of Trust, the other Loan
Documents, and any and all Leases on the part of Assignor to be kept,
observed, and performed;
(c) enforce the performance of each and every
obligation, term, covenant, condition, and agreement in each
Lease by any tenant to be performed, and, at the request of
Assignee, enforce all remedies available to Assignor against
any tenant under or guarantor of a Lease in case of a default
thereunder;
(d) appear in and defend any action or proceeding
arising under, occurring out of, or in any manner connected
with any Lease or the obligations, duties, or liabilities of
Assignor or any tenant thereunder, and, upon request by
Assignee, to do so in the name and on behalf of Assignee, but
at the expense of Assignor;
(e) upon request of Assignee, deliver to Assignee,
forthwith upon the execution of each and every Lease and
amendment thereof, now or at any time hereafter affecting the
Property, or any portion thereof, a specific assignment of
such new or amended Lease, affirming that such Lease is
subject to all of the terms, covenants, and conditions hereof;
(f) deliver to Assignee, annually with Assignor's
financial statements as described in the Deed of Trust,a
complete list of each and every Lease, showing unit number,
type, name and address of tenant, monthly rental, date to
which Rent is paid, term of Lease, date of occupancy, date of
expiration, security deposit, and each and every special
provision, concession, or inducement granted to the tenant
thereunder;
(g) deliver to Assignee, at the request of Assignee any
time after an Event of Default (as hereinafter defined), all
security deposits under all Leases, which funds shall be held
by Assignee, without interest payable to Assignor, as part of
and commingled with the general funds of Assignee, but which
funds shall, however, be repayable to the subject tenants,
pursuant to the terms and provisions of the Leases under which
such security deposits were made;
(h) give immediate notice to Assignee of any notice of
default, on the part of Assignor, under any Lease, and any
notice of cancellation of any Lease, which is received by
Assignor from or on behalf of any tenant under a Lease,and
furnish Assignee with a copy of each such notice; and
(i) at the request of Assignee, execute and deliver to
Assignee such further instruments and do and perform such
other acts and things as Assignee may deem necessary or
appropriate, from time to time, to make effective this
Assignment and the various covenants of Assignor herein
contained and to more effectively vest in and secure to
Assignee the sums due or hereafter to become due under the
Leases, including, without limitation, the execution of such
additional assignments as shall be deemed necessary by
Assignee to effectively vest in and secure to Assignee all
Rents, income, and profits from and under any and all Leases.
2.3. Negative Covenants. Assignor hereby covenants and
agrees that it will not, without in each instance obtaining
the prior written consent of Assignee:
(a) enter into any Lease on terms and conditions which
have not been approved in advance by Assignee and which do not
include an agreement on the part of each tenant under such
Lease: to recognize and agree to be bound by all of the
terms, covenants, and conditions of this Assignment; to
recognize all claims made by Assignee under or in connection
with such Lease and/or this Assignment; and that no statute of
limitations shall begin to run with respect to the enforcement
of any breach of or failure to timely and fully perform an
obligation of such tenant under such Lease until Assignee has
received written notice of such breach or failure;
(b) change, amend, alter, or modify any Lease or any of
the terms or provisions thereof, or grant any concession in
connection therewith, either orally or in writing;
(c) change, amend, alter, or modify any guaranty of any
Lease, or any of the terms or provisions of such a guaranty,
cancel or terminate any such guaranty, or grant any concession
in connection with any such guaranty;
(d) exercise any right of election, whether specifically
set forth in a Lease or otherwise, which would in any way
diminish the liability of a tenant under a Lease or have the
effect of shortening the stated term of a Lease;
(e) suffer or permit to occur any release of liability
of any tenant under or any guarantor of a Lease or the
withholding of Rent or of any other payment under a Lease;
(f) consent to the release or reduction of any
obligation of a tenant under or guarantor of any Lease;
(g) reduce or discount the Rent or any other payments
under any Lease;
(h) accept payment of any installment of Rent or any
other payment under any Lease in advance of the due date
thereof;
(i) cancel any Lease or accept a surrender thereof;
(j) consent to an assignment of the interest of any
tenant under any Lease or to a subletting thereof;
(k) assign, pledge, encumber, or otherwise transfer any
Lease or any right or interest of Assignor thereunder or in
any Rent or other payment thereunder;
(l) request, consent to, agree to, or accept a
subordination of any Lease to any mortgage or other
encumbrance now or hereafter affecting the Property; or
(m) incur any indebtedness for borrowed money or
otherwise to a tenant under or guarantor of any Lease, which
may, under any circumstances, be availed of as an offset
against Rent or other payments thereunder.
(n) Notwithstanding the provisions of any Lease,Assignor
shall not, without the prior written consent of Assignee,
relocate any tenant to any location other than the Property.
2.4. Indemnity by Assignor.
(a) Assignor hereby agrees to indemnify and hold
Assignee and its agents, servants, and employees harmless of,
from, and against any and all liability, loss, damage, cost,
and expense, which Assignee or its agents, servants, or
employees may or might incur under or by reason of this
Assignment and of, from, and against any and all claims and
demands, whatsoever, which may be asserted against Assignee or
its agents, servants, or employees by reason of any alleged
obligation or undertaking on the part of Assignee to perform
or discharge any of the terms, covenants, or agreements
contained herein or in the Leases. Should Assignee or any of
its agents, servants, or employees incur any such liability,
loss, or damage under or by reason of this Assignment, or in
defense against any such claims or demands, then the amount
thereof, including all costs, expenses, and actual attorneys'
fees (including, without limitation, the allocated costs for
services rendered by Assignee's in-house counsel) incurred in
connection therewith, together with interest thereon at the
rate of interest set forth in the Note for amounts past due,
shall be secured by this Assignment and by the Loan Documents;
Assignor shall reimburse Assignee therefor immediately upon
demand; and upon failure of Assignor so to do, Assignee may
declare all sums secured hereby, and the same shall thereupon
become, immediately due and payable.
(b) Nothing contained herein shall operate or be
construed to obligate Assignee to perform any of the terms,
covenants or conditions contained in any Lease, or to take any
measures, legal or otherwise, to enforce collection of any
Rents due under such Lease, or otherwise to impose any
obligation upon Assignee with respect to any of the Leases,
including, but not limited to, any obligation arising out of
any covenant of quiet enjoyment therein contained, in the
event that any lessee under a Lease shall have been joined as
a party defendant in any action to foreclose the Deed of Trust
in which the estate of such lessee shall have been thereby
terminated.
2.5. Waivers by Assignor. Assignor, for itself, its
successors and assigns, and each and every person with any
interest in the Property, or any part thereof, whether now owned or
hereafter acquired, hereby consents and agrees to any
extension of time, whether one or more, for the payment thereof and/or to
any and all renewals thereof; and hereby consents and agrees
that Assignee may amend the terms thereof, may release all or any
part of the security for the payment thereof, and may release any
party liable for the payment thereof, without, in any event,
affecting the terms or effect of this Assignment or the obligations or
liabilities hereunder of Assignor, its successors or
assigns, or any person with any interest in the Property, or any part
thereof, whether now owned or hereafter acquired.
ARTICLE III
DEFAULT; ACTIVATION
3.1. Events of Default. For purposes of this
Assignment, each of the following shall constitute an "Event of
Default":
(a) failure in the payment of principal or interest or
premium, if any, on the indebtedness evidenced by the Note in
the manner and at the times therein provided;
(b) failure in the payment taxes, assessments, and other
similar charges levied upon the Property before the same
become delinquent;
(c) failure in the payment of sums required by the terms
of the Note or any of the Loan Documents to be paid by
Assignor to the Assignee or to any third party for or on
account of the payment of taxes, assessments, and other
similar charges levied or expected to be levied against the
Property and for or on account of the payment of insurance
premiums, when said sums are due and payable;
(d) failure in the payment to Assignee of any insurance
proceeds or condemnation proceeds required by the terms of the
Note or any of the Loan Documents to be paid by Assignor to
Assignee when said sums are due and payable;
(e) failure to do any of the following, except to the
extent that the same are expressly excused or waived by the
terms of the Note or the Loan Documents:
(1) maintain the Property in good condition
and repair;
(2) repair, replace, restore, orrebuild any
part of the Property damaged or destroyed by any
casualty or as the result of any condemnation
proceeding, exercise of the power of eminent
domain, or alteration of the grade of any street;
(3) comply with all statutes, ordinances,
orders, rules, regulations, and requirements of all
governmental authorities relating to the Property
and with all covenants, agreements, and
restrictions relating to the Property or to the
use, occupancy, or maintenance thereof;
(4) observe and perform all covenants,
conditions, and agreements contained in any Lease
now or hereafter affecting the Property, or any
portion thereof, to be observed or performed on the
part of Assignor;
(5) pay all charges for utilities or services
relating to the Property and reimburse Assignee for
such charges as Assignee may pay;
(6) reimburse Assignee for all sums expended
by Assignee to sustain the lien of the Deed of
Trust or its priority, to protect any of the rights
of Assignee thereunder, or to recover any
indebtedness secured thereby;
(7) pay over to Assignee the amount of any
award or other payment for a taking in connection
with any condemnation proceeding, exercise of the
power of eminent domain, or alteration of the grade
of any street; or
(8) allow Assignee and agents of Assignee to
enter upon and inspect the Property and to inspect
and examine the books of record and account of
Assignor respecting the Property; and furnish
Assignee with any and all information Assignee may
request or demand regarding the Property.
(f) performance by Assignor of any of the following acts
or omissions, except to the extent that the same are expressly
permitted by the terms of the Note or the Loan Documents:
(1) commission or sufferance of commission of
any act of waste upon the Property;
(2) demolition, removal, or substantial
structural alteration of any of the buildings,
structures, or improvements on the Property;
(3) creation or sufferance of creation of any
charge, lien, or encumbrance upon the Property or
any part thereof;
(4) transfer or conveyance of the Property or
any legal or equitable interest of Assignor
therein;
(5) assignment of the Rents of the Property
or impairment in any other manner of the security
of Assignee hereunder, under the Deed of Trust, or
under any other Loan Document;
(6) acceptance of prepayments of Rent or
other payments under any Lease more than one (1)
month in advance; or
(7) modification, release, or renewal of any
Lease of the Property, or any part thereof, which
diminishes the obligations of the tenant thereunder
or which settles any claim with respect thereto;
It being the intention hereof that the performance of any act or
omission contained in this subparagraph (f) shall constitute an
Event of Default immediately upon its performance;
(g) failure to perform any other term, condition,or
covenant of the Note, Guaranty, this Assignment, or any of the
other Loan Documents;
(h) institution or filing by or against Assignor of
bankruptcy, receivership, insolvency, arrangement, or
reorganization proceedings;
(i) the entering of any judgment or the institution or
filing of any action or proceeding against Assignor by any
person, provided such judgment, action, or proceeding affects
the Property or is to foreclose any lien thereon; or
(j) any warranty or representation of Assignor contained
herein or otherwise made or given by Assignor to Assignee in
writing shall be false, misleading, or materially inaccurate.
3.2. Declaration of Activation. Upon or at any time after
the occurrence of an Event of Default, Assignee, without in any way
waiving any default, may, at its option, execute and deliver, by
depositing in the United States Mail, postage prepaid, certified
mail, addressed to Assignor at the address noted in Section
5.7 of this Assignment, a Declaration of Activation of Assignment
of Rents (hereinafter referred to as a "Declaration of Activation"),
declaring that, by reason of the occurrence of an Event of
Default, Assignee terminates the license granted to Assignor pursuant
to Section 4.5 hereof and thereafter shall exercise its rights
under this Assignment and declares that constructive possession of
the Property is vested in Assignee and that all of the legal and
equitable interest in the Rents of the Property is vested in
Assignee. Said Declaration of Activation shall not be deemed
ineffective or deficient by reason of the fact that it may contain
any matter or matters in addition to the foregoing or by reason of
the fact that no specific Event of Default is set forth therein.
Said Declaration of Activation shall be in effect immediately upon
its deposit in the United States Mail.
3.3. Event of Activation. For purposes of this Assignment,
each of the following shall constitute an "Event of Activation":
(a) the deposit in the United States Mail, postage
prepaid, certified mail, of a Declaration of Activation,
addressed to Assignor at the address noted in Section 5.7 of
this Assignment; or
(b) the taking of possession of the Property by
Assignee; or
(c) the appointment of a receiver for the Property; or
(d) the commencement of an action to foreclose the Deed
of Trust.
ARTICLE IV
RIGHTS OF ASSIGNEE
4.1. Powers of Assignee. At any time after the occurrence of
an Event of Activation, Assignee, without in any way waiving any
default, shall, at its option, have the complete right,
power, and authority:
(a) to terminate the right and license granted to
Assignor hereunder and thereafter, without taking possession,
demand, collect, receive, and xxx for the Rents and other sums
payable under the Leases; and
(b) without regard to the adequacy of the security, with
or without process of law, personally, by agent, by attorney,
by Assignee under the Deed of Trust, or by a receiver to be
appointed by court, to enter upon, take, and maintain
possession of and operate the Property, or any part thereof,
together with all documents, books, records, papers, and
accounts relating thereto; exclude Assignor, its agents and
servants, therefrom; and hold, operate, manage, and control
the Property, or any part or parts thereof, as fully and to
the same extent as Assignor could do if in possession,and, in
such event, without limitation and at the expense of Assignor,
from time to time:
(1) rent or lease the whole or any part or
parts of the Property for such term or terms and on
such conditions as may seem proper to Assignee,
including leases for terms expiring beyond the
maturity of the indebtedness secured by the Loan
Documents, and cancel any lease or sublease for any
cause or on any ground which would entitle Assignor
to cancel the same;
(2) demand, collect, and receive from the
tenant or tenants now or hereafter in possession of
the Property, or any part thereof, or from other
persons liable therefor, all of the Rents and other
revenues from such tenant or tenants or other
persons which may now be due and unpaid and which
may hereafter become due;
(3) institute and prosecute any and all suits
for the collection of Rents and all other revenues
from the Property which may now be due and unpaid
and which may hereafter become due; institute and
carry on all legal proceedings necessary for the
protection of the Property, including such
proceedings as may be necessary to recover the
possession of the whole or of any part thereof;
institute and prosecute summary proceedings for
the removal of any tenant or tenants or other
persons from the Property; and pay the costs and
expenses of all such suits and proceedings out of
the Rents and other revenues received;
(4) maintain the Property and keep the same
in repair, and pay, out of the Rents and other
revenues received, the costs of said maintenance
and repairs, including the costs and expenses of
all services of all employees, including their
equipment, and of all operating expenses and
expenses of maintaining and keeping the Property in
repair and in proper condition;
(5) employ an agent or agents to rent and
manage the Property and to collect the Rents and
other revenues thereof and pay the reasonable value
of its or their services out of the Rents and other
revenues received;
(6) effect and maintain general liability
insurance, fire insurance, boiler insurance, plate
glass insurance, rent insurance, worker's
compensation insurance, and generally such other
insurance as is customarily effected by an owner of
real property of a style and kind similar to the
Property, or as Assignee may deem advisable or
necessary to effect, and pay the premiums and other
charges therefor out of the Rents and other
revenues received;
(7) pay, out of the Rents and other revenues
received, all sums, and the interest thereon, now
due to Assignee under the Note, the Guaranty, the
Deed of Trust, and the other Loan Documents, and
hereafter to become so due, and all taxes,
assessments, and other charges now due and unpaid
and which may hereafter become due and a charge or
lien upon the Property;
(8) execute and comply with all applicable
laws, rules, orders, ordinances, and requirements
of any and all governmental authorities affecting
the Property and with all covenants, agreements,
and restrictions relating to the Property or to the
use, occupancy, or maintenance thereof, and pay the
costs thereof out of the Rents and other revenues
received;
(9) act exclusively and solely in the place
and stead of Assignor and to have all of the powers
of Assignor for the purposes aforesaid; and
(10) from time to time determine to which one
or more of the aforesaid purposes the Rents and
other revenues shall be applied and the amount to
be applied thereto.
4.2. Application of Rents. After payment of all proper
charges and expenses, including the just and reasonable
ompensation for the services of Assignee, its attorneys,
agents,clerks, servants, and others employed by Assignee in
connection with the operation, management, and control of the Property
and the conduct of the business thereof, and such further sums as
may be sufficient to indemnify Assignee from and against any
liability, loss, damage, cost, and expense on account of any matter or
thing done in good faith in pursuance of the rights and powers of
Assignee hereunder, Assignee may, at its option, retain and
apply the net amount of Rents arising from the Property, in whole
or in part, to any and all amounts due or owing to Assignee from
Assignor under the terms and provisions of the Guaranty, this
Assignment, the Loan Documents, or any other agreement now or at any
time hereafter existing between Assignor and Assignee. The
manner of the application of such net amount of Rents and the
obligations to which the same shall be applied shall be within the sole
discretion of Assignee. The balance of such net amount of Rents shall
be released to or upon the order of Assignor.
4.3. Attorney-in-Fact. Assignor hereby irrevocably appoints
Assignee as its true and lawful attorney-in-fact, coupled with an
interest, hereby grants and gives Assignee the full power and
authority as principal for all purposes set forth herein, together
with full power and authority to appoint a substitute or substitutes
to perform any of the same and the right to revoke any
such appointment at pleasure, and hereby ratifies and
confirms whatsoever Assignee, as such attorney-in-fact, and its
substitutes shall do by virtue of this appointment and grant of
authority.
4.4. Direction to Tenants. Assignor hereby consents to and
irrevocably authorizes and directs the tenants under the Leases and
any successors to the interest of said tenants, upon demand and
notice from Assignee of the right of Assignee to receive the Rent
and other amounts payable under such Leases, to pay to Assignee the
Rents and other amounts due or to become due under the Leases, and
said tenants shall have the right to rely upon such demand and
notice from Assignee and shall pay such Rents and other amounts to
Assignee without any obligation or right to determine the actual
existence of the right of Assignee to receive such Rents and other
amounts, notwithstanding any notice from or claim of Assignor to
the contrary, and Assignor shall have no right or claim against
said tenants for any such Rents and other amounts so paid by said
tenants to Assignee. Assignor hereby agrees that, at the request
of Assignee, Assignor will furnish each tenant under any Lease with
a true and complete copy of this Assignment. If the Property or
any part thereof is now or at any time hereafter used or occupied
by Assignor as a homestead or otherwise, then Assignor shall pay to
Assignee, upon written demand by Assignee, such sum per month as,
in the opinion of Assignee, is reasonable rent for the Property so
used or occupied, to be applied by Assignee as herein provided,
and, upon demand by Assignee, Assignor shall vacate the Property to
Assignee.
4.5. License to Assignor. Notwithstanding the foregoing
provisions making and establishing a present and absolute transfer
and assignment of the Leases and the Rents arising therefrom, so
long as no Event of Activation shall have occurred, Assignor shall
have the right and license to occupy the Property as landlord or
otherwise, to collect, use, and enjoy the Rents payable under and
by virtue of any Lease, but only as the same become due under the
provisions of such Lease, and to enforce the covenants of each
Lease. Upon the occurrence of any Event of Activation, such right
and license of the Assignor shall immediately terminate and become
void and of no effect; and such right and license shall not at any
time thereafter be, or be deemed to be, reinstated except with the
express written consent of Assignee specifically reinstating such
right and license.
Notwithstanding the foregoing, Assignor acknowledges that it
is the intention of the parties hereto that this Assignment fully
and presently perfects the interest of Assignee in all leases,
Rents and profits arising from the Property without the necessity
of an Event of Activation. Assignor shall have no right to grant
any other assignment of any Rents or other benefits of the Property
subject to this Assignment without the express prior written
consent of Assignee; the existence of such right and license shall
not at any time operate to subordinate this Assignment to any
subsequent assignment by Assignor, in whole or in part; and any
such subsequent assignment by Assignor shall be subject in all
respects to the rights of Assignee hereunder and under the Deed of
Trust and other Loan Documents.
4.6. Rights Optional. Assignee shall not be obligated to
perform or discharge any obligation, duty, or liability of
Assignor, nor shall Assignee be responsible for its failure to
exercise or enforce any rights granted to it under this Assignment.
Any failure or omission by Assignee to enforce this Assignment for
any period of time shall not impair the force or effect hereof or
prejudice the rights of Assignee, and Assignee shall not be
required under this Assignment to exercise or enforce any of the
rights herein granted to it, it being understood that all matters
contained herein are strictly within the discretion of Assignee.
4.7. Rights Cumulative. No right or remedy herein conferred
upon or otherwise available to Assignee is intended to be or shall
be construed to be exclusive of any other right or remedy, but each
and every one of the rights and remedies of Assignee hereunder are
cumulative and not in lieu of, but in addition to, any rights or
remedies which Assignee may have under the Note, the Loan
Documents, at law, or in equity, any and all of which such
rights and remedies may be exercised by Assignee prior to,
simultaneously with, or subsequent to any action taken hereunder.
Any and all rights and remedies of Assignee may be exercised from time
to time and as often as Assignee deems such exercise to be
expedient, and the delay or failure of Assignee to avail itself of any of
the terms, provisions, and conditions of this Assignment for any
period of time, at any time or times, shall not be construed or
deemed to be or constitute a waiver or impairment thereof. No delay or
omission to exercise any right or power accruing upon any default
or Event of Default shall impair any such right or power or shall
be construed to be a waiver of any such default or Event of Default
or an acquiescence therein; nor shall the giving, taking, or
enforcement of any other or additional security, collateral, or
guaranty for the payment of the indebtedness secured under this
Assignment operate to prejudice, waive, or affect the security of
this Assignment or any rights, powers, or remedies hereunder; nor
shall Assignee be required to first look to, enforce, or exhaust,
any such other or additional security, collateral, or guaranty.
Assignor hereby further agrees that (a) none of the rights or
remedies of Assignee available under the Deed of Trust or any other
Loan Document or otherwise shall be delayed or in any way
prejudiced by this Assignment; (b) notwithstanding any variation or
modification, at any time, of the terms of the Note, the Deed of
Trust, and/or any other Loan Document or any extension of time for
payment thereunder or under the Note or the Guaranty, or any
release of part or parts of the security conveyed under any of the
Loan Documents, the Leases and all of the benefits assigned
hereunder shall continue as additional security in accordance with
the terms hereof; and (c) each and all of the Leases shall remain
in full force and effect, irrespective of any merger of the
interest of a lessor and tenant thereunder.
4.8. Rights Throughout Redemption. The right of
Assignee to collect and receive the Rents and other revenues assigned
hereunder, to take possession of the Property, and/or to
exercise any of the rights or powers herein granted to Assignee
shall, to the extent not prohibited by applicable law, also extend to
the period from and after the filing of any suit to foreclose the lien
of the Deed of Trust, including any period allowed by law for the
redemption of the Property, whether before or after any foreclosure sale.
4.9. No Waiver. Assignor hereby agrees that the collection
of Rents and the application as aforesaid, the entry upon and
taking of possession of the Property, or any part thereof, or the
exercise of any other right or remedy by Assignee shall not cure or
waive any Event of Default hereunder; waive, modify, or affect any
Declaration of Activation or other notice given hereunder; cure or
waive any default; waive, modify, or affect any notice of default
under the Note, the Guaranty or the Deed of Trust; affect or impair
any other right or remedy of Assignee; or invalidate any act done
pursuant to any such Declaration of Activation or other notice.
The enforcement of any right or remedy by Assignee, onceexercised,
shall continue for so long as Assignee shall elect, and if Assignee
shall thereafter elect to discontinue the exercise of any such
right or remedy, then the same or any other right or remedy
hereunder or otherwise available may be reasserted at anyt ime and
from time to time upon any subsequent or continuing default
.
4.10. Indulgences by Assignee. In the event that
Assignee (a) grants any extension of time or forbearance with
respect to the payment of any indebtedness secured by this
Assignment; (b) takes other or additional security for the payment
thereof; (c) waives or fails to exercise any right granted herein
or under the Note or any Loan Document; (d) grants any release,
with or without consideration, of the whole or any part of the
security held for the payment of the debts secured hereby or the
release of any person liable for payment of such debts; (e) amends
or modifies, in any respect, any of the terms and provisions hereof
or of the Note (including substitution of another Note) or any of
the Loan Documents; then and in any such event, such act or
omission to act shall not release Assignor or any co-makers,
sureties, or guarantors of this Assignment or of the Guaranty,
under any covenant of this Assignment or of the Guaranty, nor
preclude Assignee from exercising any right, power, or privilege
herein granted or intended to be granted in the event of any other
default or Event of Default then made or any subsequent default or
Event of Default, nor in any way impair or affect the lien or
priority of this Assignment or any other Loan Document.
ARTICLE V
MISCELLANEOUS PROVISIONS
5.1. Assignee Not a Mortgagee in Possession. The acceptance
by Assignee of this Assignment, with all of the rights, powers,
privileges, and authority so created, shall not, prior to actual
entry upon and taking possession of the Property by Assignee, (a)
be deemed or construed to constitute Assignee a mortgagee in
possession; (b) thereafter, at any time or in any event, impose any
obligation, whatsoever, upon Assignee to appear in or defend any
action or proceeding relating to the Leases or the Property; to
take any action hereunder; to expend any money or incur any
expenses; to perform or discharge any obligation, duty, or
liability under the Leases; or to assume any obligation or
responsibility for any security deposits or other deposits
delivered to Assignor by or on behalf of any tenant under any Lease
and not assigned and actually delivered to Assignee; or (c) render
Assignee liable in any way for any injury or damage to person or
property sustained by any person or persons, firm, or corporation
in or about the Property.
5.2. Successors of Assignor. In the event of the sale or
transfer of all or any part of the Property, by operation of law or
otherwise, and regardless of whether or not such sale or transfer
constitutes an Event of Default, Assignee is authorized and
empowered to deal with the transferee with reference to this
Assignment, the Property, or the debts secured hereby, or with
reference to any of the terms or conditions contained herein, as
fully and to the same extent as it might deal with Assignor and
without in any way releasing or discharging any liabilities of
Assignor hereunder or under the Guaranty or the Loan Documents.
5.3. Successors and Assigns. This Assignment shall be
assignable by Assignee, and all representations, warranties,
covenants, powers, and rights herein contained shall be binding
upon Assignee and Assignor, and their respective successors and
assigns, and shall inure to the benefit of Assignee, and its
successors and assigns, and Assignor, and, but only to the extent
permitted hereunder, its successors and assigns.
5.4. Lender/Borrower. The relationship between Assignee and
Assignor is and shall remain solely that of a lender and borrower,
and nothing contained herein, in the Loan Documents, or in any
other agreement shall in any manner be construed as making Assignee
and Assignor partners or joint venturers or as creating any
relationship between Assignee and Assignor other than that of
lender and borrower.
5.5. No Third-Party Beneficiaries. It is expressly intended,
understood, and agreed that (a) this Assignment and the Loan
Documents are made and entered into for the sole protection and
benefit of Assignor and Assignee and their respective successors
and assigns (but in the case of the assigns of Assignor, only to
the extent permitted hereunder), and no other person or persons
shall have any right of action hereon or rights to any loan funds
or other funds now or at any time hereafter secured or to be
secured hereby; (b) that such loan funds do not constitute a trust
fund for the benefit of any third party; (c) that no third party
shall under any circumstances be entitled to any equitable lien on
any undisbursed loan or other proceeds at any time; and (d) that
Assignee shall have a lien upon and the right to direct application
of any undisbursed loan funds as additional security for the
Guaranty, this Assignment, and the other Loan Documents.
5.6. Expenses of Assignee. If Assignee is made a party to
any suit or proceeding by reason of the interest of Assignee in the
Property, or if the Note, the Guaranty, this Assignment, or any
other Loan Document is placed in the hands of an attorney or
attorneys to defend or enforce any rights of Assignee, then
Assignor shall reimburse Assignee for all costs and expenses,
including actual attorneys' fees, incurred by Assignee in
connection therewith. All amounts incurred by Assignee hereunder
shall be secured hereby and shall be due and payable by Assignor to
Assignee forthwith on demand, with interest thereon at the rate at
which interest accrues on amounts due under the Note after the same
become due.
5.7. Notices. All notices, demands, or documents of any kind
which may be required or permitted to be served by either party
hereto upon or to the other shall be sufficiently served by
delivering the same personally or by depositing a copy of the same
in the United States Mail, postage prepaid, certified mail,
addressed to Assignor or Assignee, as the case may be, at its
address, as set forth above, or at such other address as either
Assignor or Assignee may from time to time designate by like notice
to the other. Any notice so mailed shall be deemed to have been
given on the date so mailed.
5.8. Applicable Law. This Assignment shall be interpreted in
accordance with and governed, in all respects, by the internal laws
of the State of Maryland.
5.9. Amendment. Neither this Assignment nor any term,
covenant, or condition hereof may be amended, modified, or
terminated, except by an agreement in writing, signed by the party
against whom enforcement of the amendment, modification, or
termination is sought.
5.10. Construction. The Note, the Guaranty, this Assignment,
and the other Loan Documents shall be construed without regard to
any presumption or rule requiring construction against the party
causing such instruments to be drafted. The headings and captions
contained in this Assignment are solely for convenience of
reference and shall not affect its interpretation. All terms and
words used in this Assignment, whether singular or plural and
regardless of the gender thereof, shall be deemed to include any
other number and any other gender as the context may require.
5.11. Severability. If any term, covenant, or condition of
the Note, the Guaranty, this Assignment, or any other Loan
Document, or the application thereof to any person or circumstance,
shall, to any extent, be invalid or unenforceable, then the
remainder of the Note, the Guaranty, this Assignment, or such Loan
Document, or the application of such term, covenant, or condition
to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each
term, covenant, and condition of the Note, the Guaranty, this
Assignment, and the Loan Documents shall be valid and enforceable
to the fullest extent permitted by applicable law.
5.12. Counterparts. This Assignment may be executed,
acknowledged, and delivered in any number of counterparts, each of
which shall constitute an original, but, all together, only one
instrument.
5.13. Duration. This Assignment shall become null, void, and
of no further force or effect upon the payment in full of all
indebtedness under the Note, the Guaranty, this Assignment, and the
other Loan Documents and the full performance of all other obligations of
Assignor hereunder and thereunder. Upon recordation
of a release of the Deed of Trust, this Assignment shall terminate.
5.14. Receipt by Assignor. Assignor hereby acknowledges that
a full, true, and complete copy of this Assignment (including
Exhibit A hereto) was delivered to and received by Assignor on the
date of actual execution hereof by Assignor, as set forth below.
5.15. No Merger of Assigned Leases. As against Assignee, at
all times during which this Assignment shall be in effect, there
shall be no merger of the Leases or the leasehold estates created
thereby with the fee simple estate in the Property by reason of the
fact that the Leases or any interest therein may be held by or for
the account of any person, firm or corporation which may be or
become the owner of said fee estate, unless Assignee shall consent
in writing to said merger.
5.16. Effective Date. The effective date of this Assignment
shall be the date on the first page hereof notwithstanding the fact
that this Assignment may have been executed on a date other than
such date.
IN WITNESS WHEREOF, Assignor has caused these presents to be
duly executed, sealed, and delivered in Baltimore City, Maryland as
of the day and year first above written.
WITNESS: XXXXXXXXX'X WHARF BALTIMORE L.P.,
a Delaware limited partnership
By: HISTORIC PRESERVATION PROPERTIES 1990
L.P. TAX CREDIT FUND, general partner
By: BOSTON HISTORIC PARTNERS II LIMITED
PARTNERSHIP, its sole general partner
By: BHP II ADVISORS LIMITED
PARTNERSHIP, its sole general partner
By: PORTFOLIO ADVISORY
SERVICES, INC.
By: Xxxxxxxx X.Xxxxxxxx
President
and
By: Xxxxxxxx X. Xxxxxxxx,
General Partner
and
By: XXXXXXXXX'X WHARF DEVELOPMENT CORP.,
general partner
By: Xxxxxxxx X. Xxxxxxxx
President
)
) ss:
)
On this the _____ day of February, 1996, before me
____________________, the undersigned officer, personally appeared
Xxxxxxxx X. Xxxxxxxx, who acknowledged himself to be a general
partner of BHP II Advisors Limited Partnership, the general partner
of Boston Historic Partners II Limited Partnership, the general
partner of Xxxxxxxxx'x Wharf Baltimore L.P., and executed the
forgoing Assignment of Rents and Leases on behalf of Xxxxxxxxx'x
Wharf Baltimore L.P. for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
______________________________
Notary Public
[SEAL]
My commission expires:
)
) ss:
)
On this the _____ day of February, 1996, before me
____________________, the undersigned officer, personally appeared
Xxxxxxxx X. Xxxxxxxx, who acknowledged himself to be the President
of Portfolio Advisory Services II, Inc., a general partner of BHP
II Advisors Limited Partnership, the general partner of Boston
Historic Partners II Limited Partnership, the general partner of
Xxxxxxxxx'x Wharf Baltimore L.P., and executed the forgoing
Assignment of Rents and Leases on behalf of Xxxxxxxxx'x Wharf
Baltimore L.P. for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
______________________________
Notary Public
[SEAL]
My commission expires:
)
) ss:
)
On this the _____ day of February, 1996, before me
____________________, the undersigned officer, personally appeared
Xxxxxxxx X. Xxxxxxxx, who acknowledged himself to be the President
of Xxxxxxxxx'x Wharf Development Corp., a general partner of
Xxxxxxxxx'x Wharf Baltimore L.P., and executed the forgoing
Assignment of Rents and Leases on behalf of Xxxxxxxxx'x Wharf
Baltimore L.P. for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
______________________________
Notary Public
[SEAL]
My commission expires:
I hereby certify that I am a member of the Bar of the
Court of Appeals of Maryland and that the foregoing Assignment of
Rents and Leases was prepared under my supervision.
______________________________
Xxxx X. Xxxxxxxx
Exhibit A
(Legal description)
