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HomeMy WebLinkAbout937425 ASSIGNMENT OF LEASES, RENTS AND PROFITS AGREEMENT made this 6th day of March, 2008 , by and between Steve Chichinsky RECEIVED 3/6/2008 at 3:53 PM RECEIVING # 937425 BOOK: 688 PAGE' 858 . JEANNE WAGNER 8500 S. Henry Road, Jackson, Wyommg 83001 "JCOLN COUNTY CLERK KEMME . RER. W'("Assignor") and EASTERN SAVINGS BANK, fsb, having an office at 11350 McComuck Road, Executive Plaza 2, Suite 200, Hunt Valley, Maryland 21031 ("Assignee"). doing business at 0'·00858 ,', I ;. f¡ WHEREAS, Assignor is the record owner of certain premises known as ¿¡ \ 193 Kibbie Parkway, Alpine, Wyoming 83128 (the "Premises"); WHEREAS, Assignee is the mortgageelbeneficiary ofthe Premises by Mortgage/Deed of Trust given by Assignor of even date herewith (the "Mortgage"); and WHEREAS, the Premises or parts thereof are demised pursuant to various leases (the "Leases"), as may be more particularly described on schedules annexed hereto and made a part hereof; and WHEREAS, as additional security for the Mortgage, Assignee has required an assignment ofleases and of any and all rents and profits hereinafter generated by the Premises; NOW, THEREFORE, in order to induce Assignee to enter into the Mortgage and fund the loan which forms the basis for the note and bond in connection therewith, Assignor hereby grants, transfer and assigns to Assignee all right, title and interest of the Assignor in and to the Leases, all rents, additional rents and payments in lieu of rents payable under the Leases, and all rents, income and profits now or hereafter generated by the Premises. This Assignnlent is given as additional security for the payment by Assignor of all sums secured by the Mortgage. The security of this Assignment is and shall be prinmry and on a parity with the lien of the Mortgage and not secondary. All amounts collected hereunder, after deducting the expenses ofthe operation ofthe Premises and after deducting the expenses of collection, shall be applied on account ofthe indebtedness secured by the Mortgage, in the manner as nmy be provided for in the Mortgage. Assignor warrants to Assignee the following: (i) that the Leases are in full force and effect, that Assignor has not heretofore assigned or pledged that same or any interest therein, and no default exists on the part ofthe same or any interest therein, and no default exists on the part ofthe lessees, or Assignor, as lessor, in the perfoffimnce on the part of either, ofthe terms, covenants, provisions or agreements contained in the Leases; .JL (ü) that no rent has been paid by the lessees under the Leases for more than one month in advance, and that the payment ofthe rents, additional rents and charges which have yet to accrue under the Leases has not been and shall not be waived, released, reduced, discounted or otherwise discharged or compromised by Assignor, directly or indirectly; ù00859 (ill) that Assignor has full power and authority and legal right to execute, deliver and carry out the terms ofthis Assignment and that no consent or approval is required in connection with the execution, delivery or carrying out of the temlS of this Assignnlent; (iv) that Assignor has not heretofore sold, assigned, transferred, mortgage, pledged, released or discharged all or any part ofthe Leases or the Premises, or any of the rents, issues, profits and income there:&om, and shall not hereafter do so; (v) that execution and delivery ofthis Assignnlent will not contravene any law, ordinance, rule, regulation, judgment, decree award or order, or conflict with or result in a breach of any lien, encumbrance or agreement to which Assignor is a party or to which the Premises are subject; and (vi) that Assignor will keep the Premises duly insured and in good repair and comply with all laws, ordinances, rules, regulations and codes applicable to the Premises and the Leases. Assignor waives any and all rights of set-offhereunder against Assignee, and covenants: (a) not to tem1Ïnate, cancel, modifY or amend the Leases or any ofthe terms hereof, or pem1Ít the sanle to merge into the fee estate, or grant any concessions in connection therewith, either orally or in writing; not to accept, consent to or pem1Ít a surrender, an assignnlent or a subletting by any lessee without the prior written consent of Assignee, and that any attempted tem1ination, cancellation, modification, merging or amendment of the Leases, or any surrender, assignment or subletting without such prior written consent shall be null and void; (b) not to collect any of the rent, income and profits arising or accruing under the Leases or :&om the Pren1Íses more than thirty (30) days in advance ofthe time when the sanle becomes due; (c) not to discount any future accruing rents; (d) not to execute any other assignment of the Leases or any interest therein or any ofthe rents thereunder or of any other rents, income or profits now or hereafter generated by the Premises; (e) to perform all of Assignor's covenants and agreements as lessor under the Leases and not to suffer or pennit to occur any release of liability of the lessees, or any right to the lessees to withhold payment of rent; and to give prompt notices to the Assignee of any notice of default on the part of the Assignor with respect to the Leases received, and to furnish Assignee with complete copies of said notices; (f) if so requested by Assignee, to enforce the Leases and all remedies available to Assignor against the lessees, in case of default under the Leases; (g) that none of the rights or remedies of Assignee under the Mortgage shall be delayed or in any way prejudiced by this Assignnlent; (h) that notwithstanding any variation of the terms of the Mortgage or any extension oftime for payment thereunder or any release of part or parts ofthe Premises conveyed thereunder, the Leases and benefits hereby assigned shall continue as additional security in accordance with the terms hereof; (i) not to request, consent to, agree to accept a subordination ofthe Leases to any other mortgage or other encumbrance now or hereafter affecting the Premises; and, Ù00860 (j) not to exercise any rights or election, whether specifically set forth in any such lease or otherwise, which would in any way din1inish a lessee's liability or have the effect of shortening the stated ternl of any of the Leases. Assignor hereby irrevocably appoints Assignee, its successors and assigns as its attorney-in-fact, coupled with an interest: (a) to enforce any and all rights of Assignor with respect to the Premises, without linùtation, the commencement of actions or proceedings; (b) to sublease the Premises and sign contracts with respect thereto; (c) to pay any and all taxes, assessments and expenses with respect to the Premises; and (d) generally to do anything that Assignor, its successors and Assignees deem desirable. In such event, Assignee shall be accountable to Assignor for the allocation by Assignee of any monies actually received by the Assignee hereunder. In the exercise of the powers herein granted to Assignee, no liability shall be exerted or enforced against Assignee, all such liability being hereby expressly waived and released by Assignor. Assignee shall not be obligated to perfornl or discharge any obligations, duty or liability under the Leases, or under or by reason ofthis Assignment, and Assignor shall and does hereby agree to indemnifY Assignee for and to hold it harmless for and ITom any and all liability, loss or danmge which it mayor might incur under the Leases or under or by reason of this Assignment and of and ITom any and all claims and demands whatsoever which nmy be asserted against it by reason of any alleged obligations or undertakings on its part to discharge any of the tenns, covenants or agreements contained in the Leases. . Should Assignee incur any such claims, or demands, the amount thereof, including costs, expenses and reasonable Attorney's fees, shall be secured hereby, and Assignor shall reinlburse Assignee therefor immediately upon demand. It is expressly understood and agreed, anything herein contained to the contrary notwithstanding, that Assignee agrees not to exercise any of the rights or powers herein conferred upon it until such tinle as a default shall occur under the tern1S and provision of this Assignment or of the Mortgage, and upon the occurrence of any such default, Assignee shall be entitled, upon notice to the lessees, to all rents and other amounts then due and thereafter accruing under the Leases and all rents, income and profits otherwise generated by the Premises, and this Assignment shall constitute a direction to and full authority to the lessees to pay all such amounts to Assignee without further proof of such default. The lessees are hereby irrevocably authorized by Assignor to rely upon and comply with (and shall be fully protected in so doing), any notice or denmnd by Assignee directing the payment to Assignee of any rental or other sun1S which may be or thereafter become due under the Leases and any rents, income and profits otherwise due, or for the performance of any of the lessees' undertakings under the Leases and shall have no right or duty to inquire as to whether any default under the Mortgage has actually occurred and is then continuing. This Assignment is intended to be supplementary to and not in substitution for or in derogation of any assignment of rents contained in the Mortgage or in any other document and the exercise of the right to collect monies under this Assignment shall not be deemed a waiver of any of the remedies provided by the Mortgage, or any other legal available remedy to Assignee, but that the right to collect said monies shall be in addition to all said remedies.e This Assignment shall include any extensions and renewals of the Leases and any reference' herein to the Leases shall be construed as including any such extensions and renewals. uu0861 This Assignment shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. The words "Assignor", "Assignee" and "lessee" wherever user herein, shall include the persons named herein and designated as such and their respective successors and assigns, and all words and phrases shall be taken to include the singular or plural and masculine, feminine or neuter gender, as may fit the case. This Assignment represents the entire agreement between the parties hereto as to the matters addressed herein, all other and prior agreements as to these matters, if any, being merged herein. This Assignment may not be amended or modified except by a writing executed by all parties hereto. WITNESS/ATTEST: ~~tO JU- Chichinsky (SEAL) STATE OF WYOMING, County of lì ~ I v...... , to wit: I hereby certify that on this 6th day of March, 2008, before me, the subscriber, a Notary Public of the State of Wyoming, in and for the County of L'\ ~I v..- , personally appeared Steve Chichinsky, known to me or satisfactorily proven to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained, AS WITNESS WHEREOF, my hand and notarial seal. ~v Notary Public My conmlission expires: ~?-S}1Ð! Ö ASSIGNMENT OF LEASES. RENTS AND PROFITS STEVE CHICHINSKY NANCY J. BROWN - NOTARY PUBLIC '" COUNTY OF STATE OF LINCOLN " WYOMING MY COMMISSION EXPIRES ~(2-5IWlO to EASTERN SAVINGS BANK, fsb EXHIBIT "B" 000862 1. This Financing Statement Covers: (a) All leases and rents, income and profits due and becoming due, including, without limitation, all cash, security deposits, advance deposits, advance rentals and deposits or payments of a similar nature, from the hereinafter described real property. (b) All tangible personal property now owned or leased by Debtor or hereafter acqu~red and now or at any time hereafter located on or at the hereinafter described real property or any part thereof, or used in connection therewith, whether now owned or hereafter acquired, including, but not limited to: all goods, machinery, tools, insurance proceeds, equipment (including fire sprinklers and alarm systems, air conditioning, heating, refrigerating, electronic monitoring, entertainment, recreational, window or structural cleaning rigs, maintenance, exclusion of vermin or insects, removal of dust, refuse or garbage and all other equipment of every kind), lobby and all other indoor and outdoor furniture (including tables, chairs, planters, desks, sofas, shelves, lockers and cabinets), wall beds, wall safes, furnishings, appliances (including ice boxes, refrigerators, fans, heaters, stoves, water heaters and incinerators) inventory, rugs, carpets and other floor coverings, draperies and drapery rods and brackets, awnings, window shades, venetian blinds, curtains, lamps, chandeliers, and other lighting fixtures and office maintenance and other supplies, and any and all renewals and replacements thereof and any substitutions for, or additions to, the same. (c) The interest of Debtor in any and all (i) proceeds of insurance now or hereafter in effect with respect to the hereinafter described real property or any other property described in the Mortgage (hereinafter defined), and (ii) awards with respect to the taking by eminent domain, or by any proceeding or purchase in lieu thereof, of the whole or any part of the hereinafter described real property or any other property described in the Mortgage, including without limitation any awards resulting from a change of grade of streets and awards for severance damages. (d) The interest of Debtor in all plats, drawings, permits, engineering studies, contracts, agreements, licenses, including liquor licenses, approvals or other intangibles relating to the property described in Paragraph 6 hereof. 2. Proceeds of collateral are covered hereunder. 3. The aforesaid items are included as security under a certain Mortgage, Assignment of Rents and Security Agreement from Debtor to the Secured Party and recorded or intended to be recorded in the Offices of the Recorder of Deeds for Lincoln County, Wyoming, securing a Promissory Note from Debtor to Eastern Savings Bank, fsb. 4. The real estate consists of a certain parcel of land and the improvements thereon located in Lincoln County, Wyoming as more particularly described in Exhibit "A" attached hereto. EXHIBIT "A" 000863 ALL THAT PROPERTY situated in Lincoln County, Wyoming: A portion of Section 9, T36N, Rl19W, 6111 PM, Wyoming, described as follows: Lots 8 & 7, Proposed Alpine Retreat, Inc., Subdivision #3, as prepared in 1971 by AAA Engineers, Alden Brewer, Land Surveyor Register No. 526, Salt Lake City, Utah. The in1provements thereon being known as 193 Kibbie Parkway. TAX ill NO.: 36190940000800