EXHIBIT 4
ASSIGNMENT OF RENTS AND LEASES
(000 Xxxx Xxxxxxxxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx)
THIS ASSIGNMENT, made as of May 13, 1998, by C.B. REALTY OF
DELAWARE, INC., a Delaware corporation, with a mailing address of 000 Xxxx
Xxxxxxxxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxxx 00000 (hereinafter called "Assignor"),
in favor of METLIFE CAPITAL FINANCIAL CORPORATION, a Delaware corporation, with
a mailing address of Real Estate Department, 00000 Xxxxxxxxx Xxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 (hereinafter called "METLIFE"),
WITNESSETH :
Assignor, for good and valuable consideration, the receipt of
which is hereby acknowledged, does hereby absolutely and unconditionally grant,
bargain, sell, transfer, assign, convey, set over and deliver unto METLIFE all
right, title and interest of Assignor in, to and under all written and oral
leases and rental agreements of the real estate described in Exhibit A attached
hereto and incorporated herein ("Property"), whether now in existence or
hereafter entered into, and all guaranties, amendments, extensions, renewals and
subleases of said leases and any of them, all of which are hereinafter called
the "Leases," all rents, income and profits which may now or hereafter be or
become due or owing under the Leases, and any of them, or on account of the use
of the Property, any award hereafter made in any bankruptcy, insolvency or
reorganization proceeding in any state or federal court involving any of the
tenants of the Leases, and any and all payments made by such tenants in lieu of
rent.
This Assignment is made for the purpose of securing:
A. The payment of the indebtedness (including any
extensions or renewals thereof) evidenced by a
certain Note ("Note") of Assignor of even date
herewith in the principal sum of Five Hundred
Thousand Dollars ($500,000) and secured by a certain
Deed of Trust, Security Agreement, Assignment of
Leases and Rents and Fixture Filing ("Deed of Trust")
of even date herewith encumbering the Property; and
B. The payment of all other sums with interest thereon
becoming due and payable to METLIFE under the
provisions of the Deed of Trust and any other
instrument constituting security for the Note; and
C. The performance and discharge of each and every term,
covenant and condition contained in the Note, Deed of
Trust and any other instrument constituting security
for the Note.
Assignor represents, warrants, covenants and agrees with
METLIFE as follows:
1. The sole ownership of the entire lessor's interest in
the Leases is or shall be vested in Assignor, and
Assignor has not, and shall not, perform any acts or
execute any other instruments which might prevent
METLIFE from fully exercising its rights under any of
the terms, covenants and conditions of this
Assignment.
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2. The Leases are and shall be valid and enforceable in
accordance with their terms and have not been
altered, modified, amended, terminated, canceled,
renewed or surrendered nor have any of the terms and
conditions thereof been waived in any manner
whatsoever except as approved in writing by METLIFE.
3. Assignor shall not alter the term or the amount of
rent payable or the term of any Lease without notice
to METLIFE and METLIFE's consent.
4. There are no defaults now existing under any of the
Leases, and there exists no state of facts which,
with the giving of notice or lapse of time or both,
would constitute a default under any of the Leases.
5. Assignor shall give prompt notice to METLIFE of any
notice received by Assignor claiming that a default
has occurred under any of the Leases on the part of
Assignor, together with a complete copy of any such
notice.
6. Each of the Leases shall remain in full force and
effect irrespective of any merger of the interest of
lessor and any lessee under any of the Leases.
7. Assignor will not permit any Lease to become
subordinate to any lien other than the lien of the
Deed of Trust.
8. All existing Leases are described on Exhibit B
attached hereto and incorporated herein. Assignor has
delivered to Assignee true and correct copies of all
existing Leases and all amendments and modifications
thereto.
The parties further agree as follows:
This Assignment is an absolute, present assignment from
Assignor to METLIFE, effective immediately, and is not merely an assignment for
security purposes. Notwithstanding the foregoing, until a notice is sent to the
Assignor in writing that an Event of Default (as defined in the Note and/or Deed
of Trust) has occurred under the terms and conditions of the Note or any other
instrument constituting additional security for the Note (which notice is
hereafter called a "Notice"), Assignor is granted a license to receive, collect
and enjoy the rents, income and profits accruing from the Property.
If an Event of Default (as defined in the Note and Deed of
Trust) shall occur, METLIFE may, at its option, after service of a Notice,
receive and collect all such rents, income and profits as they become due, from
the Property. METLIFE shall thereafter continue to receive and collect all such
rents, income and profits, until METLIFE shall otherwise agree in writing. All
sums received by Assignor after service of such Notice shall be deemed received
in trust and shall be immediately turned over to METLIFE.
Assignor hereby irrevocably appoints METLIFE its true and
lawful attorney-in-fact with power of substitution and with full power for
METLIFE in its own name and capacity or in the name and capacity of Assignor,
from and after service of Notice, to demand, collect, receive and give complete
acquittances for any and all rents, income and profits accruing from the
Property, either in its own name or in the name of Assignor or otherwise, which
METLIFE may deem necessary or desirable in order to collect and enforce the
payment of the rents, income and profits and to demand, correct, receive,
endorse, and deposit all checks, drafts, money orders or notes given in payment
of such rents. Such appointment is coupled with an interest and is irrevocable.
METLIFE shall not be liable for or prejudiced by any loss of
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any note, checks, drafts, etc., unless such loss is due to the gross negligence
or willful misconduct of METLIFE.
METLIFE shall apply the rents received from Assignor=s
lessees, to accrued interest and principal under the Note. If no Event of
Default remains uncured, amounts received in excess of the aggregate monthly
payment due under the Note shall be remitted to Assignor in a timely manner.
Nothing contained herein shall be construed to constitute METLIFE as a
mortgagee-in-possession in absence of its physically taking possession of the
Property.
Assignor also hereby irrevocably appoints METLIFE as its true
and lawful attorney-in-fact to appear in any state or federal bankruptcy,
insolvency, or reorganization proceeding in any state or federal court involving
any of the tenants of the Leases. Lessees of the Property are hereby expressly
authorized and directed, from and after service of a Notice to pay any and all
amounts due Assignor pursuant to the Leases to METLIFE or such nominee as
METLIFE may designate in writing delivered to and received by such lessees who
are expressly relieved of any and all duty, liability or obligation to Assignor
in respect of all payments so made.
If an Event of Default shall occur, METLIFE is hereby vested
with full power from and after service of a Notice to use all measures, legal
and equitable, deemed by it necessary or proper to enforce this Assignment and
to collect the rents, income and profits assigned hereunder, including the right
of METLIFE or its designee, to enter upon the Property, or any part thereof, and
take possession of all or any part of the Property together with all personal
property, fixtures, documents, books, records, papers and accounts of Assignor
relating thereto, and may exclude the Assignor, its agents and servants, wholly
therefrom. Assignor hereby grants full power and authority to METLIFE to
exercise all rights, privileges and powers herein granted at any and all times
after service of a Notice, with full power to use and apply all of the rents and
other income herein assigned to the payment of the costs of managing and
operating the Property and of any indebtedness or liability of Assignor to
METLIFE, including but not limited to the payment of taxes, special assessments,
insurance premiums, damage claims, the costs of maintaining, repairing,
rebuilding and restoring the improvements on the Property or of making the same
rentable, reasonable attorneys' fees incurred in connection with the enforcement
of this Assignment, and of principal and interest payments due from Assignor to
METLIFE on the Note and the Deed of Trust, all in such order as METLIFE may
determine. METLIFE shall be under no obligation to exercise or prosecute any of
the rights or claims assigned to it hereunder or to perform or carry out any of
the obligations of the lessor under any of the Leases and does not assume any of
the liabilities in connection with or arising or growing out of the covenants
and agreements of Assignor in the leases. It is further understood that this
Assignment shall not operate to place responsibility for the control, care,
management or repair of the Property, or parts thereof, upon METLIFE, nor shall
it operate to make METLIFE liable for the performance of any of the terms and
conditions of any of the Leases, or for any waste of the Property by any lessee
under any of the Leases or any other person, or for any dangerous or defective
condition of the Property or for any negligence in the management, upkeep,
repair or control of the Property resulting in loss or injury or death to any
lessee, licensee, employee or stranger.
Waiver of or acquiescence by METLIFE in any default by the
Assignor, or failure of METLIFE to insist upon strict performance by the
Assignor of any covenants, conditions or agreements in this Assignment, shall
not constitute a waiver of any subsequent or other default or failure, whether
similar or dissimilar.
The rights and remedies of METLIFE under this Assignment are
cumulative and are not in lieu of, but are in addition to any other rights or
remedies which METLIFE shall have under the Note or any other instrument
constituting security for the Note, or at law or in equity.
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If any term of this Assignment, or the application thereof to
any person or circumstances, shall, to any extent, be invalid or unenforceable,
the remainder of this Assignment, or the application of such term to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each term of this Assignment shall be valid and
enforceable to the fullest extent permitted by law.
Any and all notices, elections, demands, or requests permitted
or required to be made under this Assignment, including without limitation a
Notice, shall be in writing, signed by the party giving such notice, election,
demand or request, and shall be delivered personally, by telegram, or sent by
registered, certified, or Express United States mail, postage prepaid, or by
Federal Express or similar service requiring a receipt, to the other party at
the address set forth above, or to such other party and at such other address
within the United States of America as any party may designate as provided
herein. The date of receipt of such notice, election, demand or request shall be
the earliest of (i) the date of actual receipt, (ii) three (3) days after the
date of mailing by registered or certified mail, (iii) one (1) day after the
date of mailing by Express Mail, or the delivery (for redelivery) to Federal
Express or another similar service requiring a receipt, or (iv) the date of
personal delivery (or refusal upon presentation for delivery).
Assignor hereby authorizes METLIFE to give written notice of
this Assignment, which may include a copy hereof, at any time to any tenant
under any of the Leases.
The terms "Assignor" and "METLIFE" shall be construed to
include the legal representatives, successors and assigns thereof. The gender
and number used in this Assignment are used as a reference term only and shall
apply with the same effect whether the parties are of the masculine or feminine
gender, corporate or other form, and the singular shall likewise include the
plural.
This Assignment may not be amended, modified or changed nor
shall any waiver of any provisions hereof be effective, except only by an
instrument in writing and signed by the party against whom enforcement of any
waiver, amendment, change, modification or discharge is sought.
Notwithstanding anything contained herein to the contrary, in
no event shall this Assignment be deemed to reduce the indebtedness evidenced by
the Note by an amount in excess of the actual amount of cash received by METLIFE
under the Leases, whether before, during or after the occurrence of an Event of
Default, and Assignor acknowledges that in no event shall the indebtedness
secured hereby be reduced by the value from time to time of the rents, income
and profits of or from the Property. In addition, METLIFE reserves the right, at
any time, whether before or after the occurrence of an Event of Default, to
recharacterize this Assignment as merely constituting security for the
indebtedness of Assignor to METLIFE, which recharacterization shall be made by
written notice delivered to Assignor. METLIFE's receipt of any rents, issues,
and profits pursuant to this Assignment after the institution of foreclosure
proceedings, either by court action or by the private power of sale contained in
any mortgage now or hereafter securing the Note, shall not cure an Event of
Default, as defined in the Note, or affect such proceedings or sale.
This Assignment shall be construed and enforced under the laws
of the State of Nevada (excluding choice-of-law principles).
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IN WITNESS WHEREOF, the said Assignor has caused this
Assignment to be signed and sealed by its duly authorized officers as of the
date first above written.
ASSIGNOR:
C.B. REALTY OF DELAWARE, INC.,
a Delaware corporation
By:___________________________________________
Title:________________________________________
Attest:_______________________________________
Title:________________________________________
[SEAL]
Exhibits:
Exhibit A - Legal Description
Exhibit B - List of Leases
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STATE OF NEVADA )
) ss
COUNTY OF XXXXX )
This instrument was acknowledged before me on May, 1998, by ______
___________________ and __________________________, as _____________________ and
______________________, respectively, of C.B. Realty of Delaware, Inc.
----------------------------------
[stamp]
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Loan No: 000-0000000-000
EXHIBIT A
(000 Xxxx Xxxxxxxxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx)
Legal Description:
That portion of the Northeast Quarter (NE1/4) of Section 4, Township 21 South,
Range 61 East, M.D.M., City of Las Vegas, Xxxxx County, Nevada, more
particularly described as follows:
Lot Two (2) as shown by Map thereof in File 82 of Parcel Maps, page 14, in the
Office of the County Recorder of Xxxxx County, Nevada.
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Loan No: 000-0000000-000
EXHIBIT B
(000 Xxxx Xxxxxxxxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx)
List of Leases:
TENANT DATE AMENDED
Carpet Barn, Inc. 6/1/95 8/1/95
4/1/98
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Prepared by, recording requested by, and when recorded, return to:
Xxxxxxxx X. Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxx & Xxxx, P.C.
000 Xxxx Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
General Electric Capital Business
Asset Funding Corporation
Loan No.: 000-0000000-000
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