HomeMy WebLinkAbout950567RECEIVED 6/18/2008 at 2:53 P
RECEIVING 93
BOOK: 697 AGE: 646
ANNE WAGNER
COUNTY CLERK, KEMMERER, WY
000646
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ASSIGNMENT OF LEASES AND RENTS SINCE .,.J
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S ASSIGNMENT OF LEASES AND RENTS "Assignment is made as of
2008, by ROCKY MOUNTAIN ROGUES, INC., a Wyoming Corporation,
"Assignor to SOUTHWEST GUARANTY, LTD., a Texas Limited Partnership "Assignee
Assignor, for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, does hereby GRANT, SELL, CONVEY, ASSIGN, TRANSFER, SET OVER
AND DELIVER to Assignee the entire lessor's interest in and to all current and future leases and
other agreements affecting the use, enjoyment, or occupancy of all or any part of the Mortgaged
Property (as defined in the Mortgage, which is defined below), which Mortgaged Property
includes that lot or piece of land, more particularly described as follows:
01C
Part of \I A,.610C of Lakeview Estates Incorporated, Tracts A -F, LINCOLN County,
Wyoming;Jon January 5, 1965, as Receiving No. 386448, as Plat No. 157, more
particularly described as follows:
Beginning at a point which is S29°05'W, 772.00 feet from the Northwest corner of SE' /a,
Section 29, T37N, R118W of the 6 PM, LINCOLN County, Wyoming and running
thence S63°W, 205.00 feet; then N27°W, 211.3 feet to right of way of U.S. Highway 89,
thence Northeast along right of way U.S. Highway 89 around curve thereof to a point
which is N27 °W, 231.6 feet from beginning point; thence N27 °E, 231.6 feet to the point
of beginning.
TOGETHER WITH all other leases and other agreements affecting the use, enjoyment or
c occupancy of any part of the Mortgaged Property now or hereafter made affecting the Mortgaged
w Property or any portion thereof, together with any extensions or renewals of the same
a. W (hereinafter collectively referred to as the "Leases
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N w Y TOGETHER WITH all rents, income, issues, revenues and profits arising from the Leases and
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Q Y renewals thereof and together with all rents, income, issues and profits from the use, enjoyment
o a w and occupancy of the Mortgaged Property, including, but not limited to, minimum rents,
co i .t z 0 additional rents, and percentage rents (hereinafter collectively referred to as the "Rents
o M w THIS ASSIGNMENT is made for the purposes of securing the payment of the Debt as defined in
w w 0 that certain Note made by Assignor to Assignee, dated the date hereof, in the principal sum of
w o z $2,100,000.00 (the "Note and secured by the Mortgage (as defined in the Note) covering the
m p Mortgaged Property and the performance and discharge of each and every obligation, covenant
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z and agreement of Assignor contained herein and in the other Loan Documents (as defined in the
eC Note).
Assignor warrants to Assignee that (a) Assignor is the sole owner of the entire lessor's interest in
the Leases; (b) the Leases are valid, enforceable and in full force and effect and have not been
altered, modified or amended in any manner whatsoever except as disclosed to Assignee;
(c) neither the Leases nor the Rents reserved in the Leases have been assigned or otherwise
pledged or hypothecated; (d) none of the Rents have been collected for more than one (1) month
in advance; (e) Assignor has full power and authority to execute and deliver this Assignment and
This Assignment of Leases and Rents is being re- recorded to correct the legal description in
that certain document recorded 6/18/2008 in Book 697, Page 646, Doc. #939882 in the Lincoln
County Clerk's Office, Lincoln County, Wyoming.
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the execution and delivery of this Assignment has been duly authorized and does not conflict
with or constitute a default under any law, judicial order or other agreement affecting Assignor
or the Mortgaged Property; (f) the premises demised under the Leases have been completed and
Lessees under the Leases have accepted the same and have taken possession of the same on a
rent- paying basis except as explicitly identified on the certified rent roll delivered by Assignor to
Assignee; and (g) there exist no offsets or defenses to the payment of any portion of the Rents.
Assignor covenants with Assignee that Assignor (a) shall observe and perform all the obligations
imposed upon the lessor under the Leases and shall not do or permit to be done anything to
impair the value of the Leases as security for the Debt; (b) shall promptly send to Assignee
copies of all notices of default which Assignor shall receive under the Leases; (c) shall not
collect any Rents more than one (1) month in advance; (d) shall not execute any other
assignment of lessor's interest in the Leases or the Rents; (e) shall execute and deliver at the
request of Assignee all such further assurances, confirmations and assignments in connection
with the Mortgaged Property as Assignee shall from time to time require; (f) shall not enter into
any new lease of the Mortgaged Property without the prior written consent of Assignee, and in
any event, any new Lease shall be on a form of lease approved by Assignee; (g) shall deliver to
Assignee, upon request, tenant estoppel certificates from each commercial Lessee at the
Mortgaged Property in form and substance reasonably satisfactory to Assignee (provided,
however, that Assignor shall not be required to deliver such certificates more frequently than two
[2] times m any calendar year); and (h) shall deliver to Assignee, at Assignee's request, executed
copies of all Leases now existing or hereafter arising.
Assignor further covenants with Assignee that, except to the extent that Assignor is acting in the
ordinary course of business as a prudent operator of property similar to the Mortgaged Property,
Assignor (a) shall promptly send to Assignee copies of all notices of default which Assignor
shall send to Lessees under the Leases; (b) shall enforce all of the terns, covenants and
conditions contained in the Leases upon the part of the Lessees thereunder to be observed or
performed, short of termination thereof; (c) shall not alter, modify or change the terms of the
Leases without the prior written consent of Assignee, or cancel or terminate the Leases or accept
a surrender thereof or take any other action which would effect a merger of the estates and rights
of, or a termination or diminution of the obligations of, Lessees thereunder; provided however,
that any Lease may be canceled if at the time of cancellation thereof a new Lease is entered into
on substantially the same terms or more favorable terms as the canceled Lease; (d) shall not
alter, modify or change the terms of any guaranty of any of the Leases or cancel or terminate any
such guaranty without the prior written consent of Assignee; (e) shall not consent to any
assignment of or subletting under the Leases not in accordance with their terms, without the prior
written consent of Assignee; and (1) shall not waive, release, reduce, discount or otherwise
discharge or compromise the payment of any of the Rents to accrue under the Leases.
Assignor further covenants with Assignee that (a) all Leases shall be written on the standard
form of lease which has been approved by Assignee; (b) no material changes may be made to
the Assignee approved standard lease without the prior written consent of Assignee; (c) all
renewals of Leases and all proposed Leases shall provide for rental rates comparable to existing
local market rates and shall be arm's length transactions; (d) all Leases shall provide that (i) they
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are subordinate to the Mortgage and any other indebtedness no or hereafter secured by the
Mortgaged Property, (ii) Lessees agree to attom to Assignee ch adornment to be effective
upon Assignee's acquisition of title to the Mortgaged Property), iii) Lessees agree to execute
such further evidences of adornment as Assignee may from a to time request, (iv) the
attornment of Lessees shall not be terminated by foreclosure, (v Assignee may, at Assignee's
option, accept or reject such adornment, and (vi) Lessees agree to furnish, two times in any
calendar year, as Assignee may request, a certificate signed by Lessee confirming and containing
such factual certifications and representations deemed reasonably appropriate by Assignee; and
(e) all new Leases shall be subject to the prior approval of Assignee.
THIS ASSIGNMENT is made on the following terms, covenants and conditions:
1. Present Assignment. Assignor does hereby absolutely and unconditionally assign
to Assignee all of Assignor's right, title and interest in all current and future Leases and Rents, it
being intended by Assignor that this assignment constitute a present, absolute assignment and
not an assignment for additional security only. Assignor agrees to execute and deliver to
Assignee such additional instruments, in form and substance satisfactory to Assignee, as may
hereinafter be requested by Assignee to further evidence and confirm said assignment. Assignee
is hereby granted and assigned by Assignor the right to enter the Mortgaged Property for the
purpose of enforcing its interest in the Leases and the Rents, this Assignment constituting a
present, absolute and unconditional assignment of the Leases and Rents. Nevertheless, subject to
the terms of this paragraph, Assignee grants to Assignor a revocable license to operate and
manage the Mortgaged Property and to collect the Rents. Assignor shall hold the Rents, or a
portion thereof sufficient to discharge all current sums due on the Debt for use in the payment of
such sums. Upon an Event of Default, the license granted to Assignor herein shall automatically
be revoked and Assignee shall immediately be entitled to receive and apply all Rents, whether or
not Assignee enters upon and takes control of the Mortgaged Property. Assignor hereby grants
and assigns to Assignee the right, at its option, upon the revocation of the license granted herein
to enter upon the Mortgaged Property in person, by agent or by court- appointed receiver to
collect the Rents. Any Rents collected after the revocation of the license herein granted may be
applied toward payment of the Debt in such priority and proportion as Assignee, in its discretion,
shall deem proper.
2. Remedies of Assignee. Upon or at any time after an Event of Default, Assignee
may, at its option, without waiving such Event of Default, without notice and without regard to
the adequacy of the security for the Debt, either in person or by agent, with or without bringing
any action or proceeding, or by a receiver appointed by a court, take possession of the
Mortgaged Property and have, hold, manage, lease and operate the Mortgaged Property on such
terms and for such period of time as Assignee may deem proper and either with or without taking
possession of the Mortgaged Property in its own name, demand, sue for or otherwise collect and
receive all Rents, including those past due and unpaid with full power to make from time to time
all alterations, renovations, repairs or replacements thereto or thereof as may seem proper to
Assignee and may apply the Rents to the payment of the following in such order and proportion
as Assignee in its sole discretion may determine, any law, custom or use to the contrary
notwithstanding: (a) all expenses of managing and securing the Mortgaged Property, including,
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without being limited thereto, the salaries, fees and wages of a managing agent and such other
employees or agents as Assignee may deem necessary or desirable and all expenses of operating
and maintaining the Mortgaged Property, including, without being limited thereto, all taxes,
charges, claims, assessments, water charges, sewer rents and any other liens, and premiums for
all insurance which Assignee may deem necessary or desirable, and the cost of all alterations,
renovations, repairs or replacements, and all expenses incident to taking and retaining possession
of the Mortgaged Property; and (b) the Debt, (including all costs and attomeys' fees).
Notwithstanding the foregoing, at any time and from time to time (whether or not an Event of
Default shall exist), Assignee shall have the right to require that all Rents and other receivables
of Assignor relating to the Mortgaged Property be deposited into a lock box (and in connection
therewith Assignor shall execute and deliver such documents as Assignee may require on such
terms and conditions as Assignee may require with respect to the establishment and maintenance
of same). Assignor shall pay any and all costs and expenses for such lock box. For purposes of
Paragraphs 1 and 2, Assignor grants to Assignee its irrevocable power of attorney, coupled with
an interest, to take any and all of the aforementioned actions and any or all other actions
designated by Assignee for the proper management and preservation of the Mortgaged Property.
3. No Liability of Assignee. Assignee shall not be liable for any loss sustained by
Assignor resulting from Assignee's failure to let the Mortgaged Property after an Event of
Default or from any other act or omission of Assignee in managing the Mortgaged Property after
an Event of Default unless such loss is caused by the willful misconduct and bad faith of
Assignee. Assignee shall not be obligated to perform or discharge any obligation, duty or
liability under the Leases or under or by reason of this Assignment and Assignor shall, and
hereby agrees, to indemnify Assignee for, and to hold Assignee harmless from, any and all
liability, loss or damage which may or might be incurred under the Leases or under or by reason
of this Assignment and from any and all claims and demands whatsoever, including the defense
of any such claims or demands which may be asserted against Assignee by reason of any alleged
obligations and undertakings on its part to perform or discharge any of the terms, covenants or
agreements contained in the Leases. This Assignment shall not operate to place any obligation
or liability for the control, care, management or repair of the Mortgaged Property upon Assignee,
nor for the carrying out of any of the terms and conditions of the Leases; nor shall it operate to
make Assignee responsible or liable for any waste committed on the Mortgaged Property,
including without limitation the presence of any Hazardous Substances, (as defined in the
Environmental Liabilities Agreement executed by Assignor to Assignee of even date herewith),
or for any negligence in the management, upkeep, repair or control of the Mortgaged Property
resulting in loss or injury or death to any Lessee, licensee, employee or stranger.
4. Notice to Lessees. Assignor hereby authorizes and directs Lessees named in the
Leases or any other or future Lessees or occupants of the Mortgaged Property (the "Lessee[s]
upon receipt from Assignee of written notice to the effect that Assignee is then the holder of the
Note and that an Event of Default exists thereunder or under the other Loan Documents to pay
over to Assignee all Rents and to continue so to do until otherwise notified by Assignee, without
further notice or consent of Assignor and regardless of whether Assignee has taken possession of
the Mortgaged Property, and Lessees may rely upon any written statement delivered by Assignee
to Lessees without any obligation or right to inquire as to whether such default actually exists
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and notwithstanding any notice from or claim of Assignor to the contrary. Assignor further
agrees that it shall have no right to claim against any of Lessees for any such Rents so paid by
Lessees to Assignee and that Assignee shall be entitled to collect, receive and retain all Rents
regardless of when and to whom such Rents are and have been paid and regardless of the form or
location of such Rents. Any such payment to Assignee shall constitute payment to Assignor
under the Leases, and Assignor appoints Assignee as Assignor's lawful attorney -in -fact for
giving, and Assignee is hereby empowered to give, acquittances to any Lessee for such payment
to Assignee after an Event of Default. Any Rents held or received by Assignor after a written
request from Assignee to Lessees for the payment of Rents shall be held or received by Assignor
as trustee for the benefit of Assignee only.
5. Security Deposits. All security deposits of Lessees, whether held in cash or any
other form, shall be treated by Assignor as trust funds, shall not be commingled with any other
funds of Assignor and, if cash, shall be deposited by Assignor in one or more segregated
accounts at such commercial or savings bank or banks as is reasonably satisfactory to Assignee.
Any bond or other instrument which Assignor is permitted to hold in lieu of cash security
deposits under applicable legal requirements (i) shall be maintained in full force and effect
unless replaced by cash deposits as hereinabove described, (ii) shall be issued by an entity
reasonably satisfactory to Assignee, (iii) shall, if permitted pursuant to legal requirements, name
Assignee as payee or beneficiary thereunder (or at Assignee's option, subject to applicable
Assignor requirements, be fully assignable to Assignee), and (iv) shall, in all respects, comply
with applicable legal requirements and otherwise be reasonably satisfactory to Assignee.
Assignor shall, upon request, provide Assignee with evidence reasonably satisfactory to
Assignee of Assignor's compliance with the foregoing. Following the occurrence and during the
continuance of any Event of Default, Assignor shall, upon Assignee's request, if permitted by
applicable legal requirements, turn over to Assignee the security deposits (and any interest
theretofore earned thereon) with respect to all or any portion of the Mortgaged Property, to be
held by Assignee subject to the terms of the Leases.
6. Other Remedies. Nothing contained in this Assignment and no act done or
omitted by Assignee pursuant to the power and rights granted to Assignee hereunder shall be
deemed to be a waiver by Assignee of its rights and remedies under the other Loan Documents
and this Assignment is made and accepted without prejudice to any of the rights and remedies
possessed by Assignee under the terms thereof. The right of Assignee to collect the Debt and to
enforce any other security therefore held by it may be exercised by Assignee either prior to,
simultaneously with, or subsequent to any action taken by it hereunder.
7. No Mortgagee in Possession. Nothing herein contained shall be construed as
constituting Assignee a "mortgagee in possession" in the absence of the taking of actual
possession of the Mortgaged Property by Assignee. In the exercise of the powers herein granted
Assignee, no liability shall be asserted or enforced against Assignee, all such liability being
expressly waived and released by Assignor.
8. No Oral Change. This Assignment may not be modified, amended, waived,
extended, changed, discharged or terminated orally, or by any act or failure to act on the part of
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Assignor or Assignee, but only by an agreement in writing signed by the party against whom the
enforcement of any modification, amendment, waiver, extension, change, discharge or
termination is sought.
9. Certain Definitions. Unless the context clearly indicates a contrary intent or
unless otherwise specifically provided herein, words used in this Assignment may be used
interchangeable in singular or plural form and the word "Assignor" shall mean "each Assignor
and any subsequent owner or owners of the Mortgaged Property or any part thereof or any
interest therein," the word "Assignee" shall mean "Assignee and any subsequent holder of the
Note," the word "person" shall include an individual, corporation, partnership, trust,
uwincorporated association, government, governmental authority, and any other entity, the words
"Mortgaged Property" shall include any portion of the Mortgaged Property and any interest
therein; whenever the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns
shall include the plural and vice versa.
10. Non-Waiver. The failure of Assignee to insist upon strict performance of any
term hereof shall not be deemed to be a waiver of any term of this Assignment. Assignee may
resort for the payment of the Debt to any other security held by Assignee in such order and
manner as Assignee, in its discretion, may elect. Assignee may take any action to recover the
Debt, or any portion thereof or to enforce any covenant hereof without prejudice to the right of
Assignee thereafter to enforce its rights under this Assignment. The rights of Assignee wider
this Assignment shall be separate, distinct and cumulative and none shall be given effect to the
exclusion of the others. No act of Assignee shall be construed as an election to proceed under
any one provision herein to the exclusion of any other provision.
11. Inapplicable Provisions. If any term, covenant or condition of this Assignment is
held to be invalid, illegal or unenforceable in any respect, this Assignment shall be construed
without such provision.
12. Counterparts. This Assignment may be executed in any number of counterparts
each of which shall be deemed to be an original but all of which when taken together shall
constitute one agreement.
13. GOVERNING LAW; JURISDICTION. THIS ASSIGNMENT SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE IN WHICH THE REAL PROPERTY ENCUMBERED BY THE MORTGAGE IS
LOCATED AND THE APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
ASSIGNOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
COURT OF COMPETENT JURISDICTION LOCATED IN THE STATE IN WHICH
THE MORTGAGED PROPERTY IS LOCATED IN CONNECTION WITH ANY
PROCEEDING ARISING OUT OF OR RELATING TO THIS ASSIGNMENT.
14. Successors and Assigns. Assignor may not assign its rights under this
Assignment. Assignor hereby acknowledges and agrees that Assignee may assign this
Assignment without Assignor's consent. Subject to the foregoing, this Assignment shall be
binding upon, and shall inure to the benefit of Assignor and the Assignee and their respective
successors and assigns.
15. Termination of Assignment. Upon payment in full of the Debt and the delivery
and recording of a satisfaction, release or discharge of Mortgage duly executed by Assignee, this
Assignment shall become and be void and of no effect.
Assignor has executed this instrument as of the day and year first above written.
ASSIGNOR:
ROCKY MOUNTAIN ROGUES, INC.,
THE STATE OF WYOMING
COUNTY OF TETON
This instrument was acknowledged before me on the l day of
2008, by JAMES II. BLITTERSDORF, as PRESIDENT of ROCKY
MOUNTAIN ROGUES, INC., a Wyoming Corporation, on behalf of said corporation.
H. UTTER NOTARY PUUUC
County of
Teton
My Commission Expires 829/2011
061108.016
State of Syr,,,,.
County of
State of
Wyoming
ME4IS CAM NOTARY PUBLIC
County of State of
Teton Wyoming
My Commission Expires May 19, 2012
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TITHE: f Re- acknowlpedgement Date:
Notary Public, State of Wyoming
This instrument was acknowledged before me on the \Z day of
by 5 as `k -e5\
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a Wyoming Corporation, on behalf of said corporation.
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Notary Publi
My Commission Expires:
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