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HomeMy WebLinkAbout2004 - Assignment of Leases and Rents - Fostoria Park Assocaites / IDS Life Insurance Company - 20040721001427When Recorded Return To. Kenneth C. Rowe Oppenheimer Wolff & Donnelly LLP 3300 Plaza VII 45 South Seventh Street Minneapolis, Minnesota 55402 (612) 607-7000 20040721001427 CHICAGO TITLH ASNR 28 00 PAGE001 OF 010 KINGICOUNTY, UA1 Document Title ASSIGNMENT OF LEASES AND RENTS Assignor FOSTORIA PARK ASSOCIATES, L.L.C., a Washington limited liability company Assignee IDS LIFE INSURANCE COMPANY, a Minnesota corporation Legal Description (Abbreviated: i.e., lot, block, plat or section, township, range) Lo-k--,e.-..A---1 o-F-rv�..,.s e,.. 5 ,4- ,pta- -. n i_ -LCp —s S ca00,42L1OS03 © Additional legal on Exhibit "A" U , i v • G c Assessor's Property Tax Parcel/Account Numbers. 2613200086/261320008608 CI11C O SOS 1 S CO' lP RAF# VI' 3407/1011,07/14 /04 1 20040721001427.00; Loan No. 694002120 ASSIGNMENT OF LEASES AND RENTS THIS ASSIGNMENT, made this o21 day of July, 2004, by FOSTORIA PARK ASSOCIATES, L.L.C., a Washington limited liability company, whose post-office address is c/o ESM Properties, 15100 S.E. 38th Street, #792, Bellevue, Washington 98006 (hereinafter referred to as the "Assignor "), to IDS LIFE INSURANCE COMPANY, a Minnesota corporation, whose address is c/o American Express Financial Corporation, 25540 AXP Financial Center, Minneapolis, Minnesota 55474 (hereinafter referred to as the "Assignee "), WITNESSETH: FOR VALUE RECEIVED, the Assignor hereby grants, transfers and assigns to the Assignee all of the right, title and interest of the Assignor in and to all leases now or hereafter entered mto whether oral or wntten which demise any portion of the real estate described in Exhibit "A" attached hereto (hereinafter referred to as the "Premises "), together with any and all extensions and renewals thereof (all such leases being hereinafter collectively referred to as the "Leases "), together with any guarantees of the tenants' obligations thereunder, together with the immediate and continuing right to collect and receive all rents, income, payments and profits ansing out of said Leases or out of the Premises or any part thereof, together with the right to all proceeds payable to the Assignor pursuant to any purchase options on the part of the tenants under the Leases, together with all payments derived therefrom including but not limited to claims for the recovery of damages done to the Premises or for the abatement of any nuisance existing thereon, claims for damages resulting from default under said Leases whether resulting from acts of insolvency or acts of bankruptcy or otherwise, and lump sum payments for the cancellation of said Leases or the waiver of any obligation or term thereof pnor to the expiration date and the return of any insurance premiums or ad valorem tax payments made in advance and subsequently refunded (hereinafter referred to as the "Rents "), all for the purpose of securing the following (hereinafter collectively referred to as the "Indebtedness "). ONE. Payment of the indebtedness evidenced by that certain Promissory Note (hereinafter referred to as the "Note ") (includmg any extensions or renewals thereof) m the pnncipal sum of Two Million Two Hundred Thousand and 00/100 Dollars ($2,200,000.00) dated of even date herewith, executed and delivered by the Assignor and payable to the order of the Assignee, secured by a Deed of Trust and Security Agreement and Fixture Financing Statement with Assignment of Leases and Rents (hereinafter referred to as the "Deed of Trust ") of same date from the Assignor to the Assignee upon the Premises, filed for record m the County of King, State of Washington; TWO Payment of all other sums with interest thereon becoming due and payable to the Assignee herein and in said Note and Deed of Trust contained; THREE. Performance and discharge of each and every obligation, covenant and agreement of the Assignor herein and in said Note and Deed of Trust contained. 3407/1022,07/14 /04 20040721 001427.0C AND THE ASSIGNOR FURTHER AGREES, ASSIGNS AND COVENANTS: 1 Performance of Leases. To faithfully abide by, perform and discharge each and every obligation, covenant and agreement of said Leases by lessor to be performed; to use its best efforts to enforce or secure the performance of each and every obligation, covenant, condition and agreement of said Leases by the tenants to be performed; not to modify, extend, renew, terminate, accept a surrender of, or in any way alter the terms of the Leases; nor borrow against, pledge, or assign any of the Assignor's nghts under the Leases or any Rents due thereunder, nor consent to a subordination or assignment of the interest of the tenants thereunder to any party other than the Assignee, nor anticipate the rents thereunder for more than one (1) month m advance or reduce the amount of the rents and other payments thereunder, nor waive, excuse, condone or in any manner release or discharge the tenants of or from their obligations, covenants, conditions and agreements to be performed, nor to incur any indebtedness to the tenants, nor enter into any additional Leases of all or any part of the Premises without the prior written consent of the Assignee. Notwithstanding the restnctions set forth above in this Section 1, Assignor may, without the pnor wntten consent of Assignee, modify any lease or enter into any new or renewal leases with respect to space in the Premises which is subject to a lease disclosed to Assignee and in effect as of the date hereof, which modified, new or renewal lease: (a) affects leased property not exceeding 5,000 rentable square feet when aggregated with other leases with that tenant on the Premises; (b) requires payment of rent at a level equal to or greater than the rents payable under the lease currently in effect for such space; (c) has been prepared on the standard form of lease that Assignee has previously approved; and (d) has a modified, new or renewal lease term (including any renewal options) not in excess of ten (10) years. A copy of all the executed leases must be provided to Assignee. Assignor shall notify Assignee of any defaults by tenants occupying 5,000 square feet or more of the Premises or having a lease term ( mcludmg renewal options) of more than ten (10) years. 2_ Protect Secunty, At the Assignor's sole cost and expense, to appear in and defend any action or proceeding arising under, growing out of or in any manner connected with the Leases or the obligations, duties or liabilities of the lessor thereunder, and to pay all costs and expenses of the Assignee, includmg attorneys' fees in a reasonable sum, in any such action or proceeding in which the Assignee in its sole discretion may appear. 3. Representations. With respect to the Leases disclosed to Assignee in that certain Certificate of Tenancies and Leases dated of even date herewith, the Assignor represents and warrants that: (a) it is now the absolute owner of the Leases with full right and title to assign the same and the Rents due thereunder, (b) the Leases are valid, in full force and effect and have not been modified or amended; (c) there are no outstanding assignments or pledges of the Leases or Rents due thereunder; (d) there are no existing defaults under the provisions of the Leases on the part of any party thereto; (e) no Rents have been waived, anticipated, 3407/1022,07/14 /04 - 2 - 20040721001427.00 / discounted, compromised or released; and (0 the tenants under the Leases have no defenses, setoffs, or counterclaims against the Assignor. 4. Present Assignment. This Assignment shall constitute a perfected, absolute and present assignment, provided the Assignor shall have the nght to collect, but not prior to accrual, all of the Rents and to retain, use and enjoy the same unless and until an Event of Default shall occur, as defined m the Deed of Trust. Except as provided for herein, the Assignor hereby releases and surrenders to the Assignee all rights to amend, modify or in any way alter the Leases without the pnor written consent of the Assignee 5 Remedies. Upon or at any time during the continuance of an Event of Default, or if any material representation or warranty herein proves to be untrue, then the Assignee, without regard to waste, adequacy of the security or solvency of the Assignor, may declare all Indebtedness immediately due and payable, may revoke the privilege granted the Assignor hereunder to collect the Rents, and may, at its option, without notice, either: a. In person or by agent, with or without taking possession of or entering the Premises, with or without bringing any action or proceeding, give, or require the Assignor to give, notice to the tenants under the Leases authonzing and directing the tenants to pay all Rents directly to the Assignee; collect all of the Rents; enforce the payment thereof and exercise all of the nghts of the Assignor under the Leases and all of the rights of the Assignee hereunder; and may enter upon, take possession of, manage and operate the Premises, or any part thereof; may cancel, enforce or modify the Leases, and fix or modify Rents, and do any acts which the Assignee deems proper to protect the security hereof; or b. Apply for appointment of a receiver as a matter of right and without notice in accordance with the statutes and law made and provided for, which receivership the Assignor hereby consents to, who shall collect the Rents; manage the Premises so as to prevent waste; execute Leases withm or beyond the period of receivership; perform the terms of this Assignment and apply the Rents as hereinafter provided. The entering upon and taking possession of such Premises, the appointment of a receiver, the collection of such Rents and the application thereof as aforesaid shall not cure or waive any default or waive, modify or affect notice .of default under the Deed of Trust or mvandate any act done pursuant to said notice, nor in any way operate to prevent the Assignee from pursuing any remedy which now or hereafter it may have under the terms and conditions of the Deed of Trust or the Note secured thereby or any other instruments secunng the same. The rights and powers of the Assignee hereunder shall remain in full force and effect both prior to and after any foreclosure of the Deed of Trust and any sale pursuant thereto and until expiration of the penod of redemption from said sale, regardless of whether a deficiency remains from said sale. The purchaser at any foreclosure sale, 3407/1022,07/14 /04 - 3 - 20040721001427.00 including the Assignee, shall have the right, at any time and without limitation, to advance money to any receiver appointed hereunder to pay any part or all of the items which the receiver would otherwise be authorized to pay if cash were available from the Premises and the sum so advanced, with interest at the Default Rate, as defined m the Note, shall be a part of the sum required to be paid to redeem from any foreclosure sale 6. Application of Rents Any Rents shall be applied m such order as Assignee shall deem proper to the operation and management of the Premises mcluding: (a) to the payment of the Indebtedness, (b) to payment of all reasonable fees of any receiver appointed hereunder, (c) to payment of reasonable attorneys' fees, (d) to payment when due of pnor or current real estate taxes or special assessments with respect to the Premises or, if the Deed of Trust so requires, to the periodic escrow for payment of the taxes or special assessments then due, (e) to payment when due of premiums for insurance of the type required by the Deed of Trust or, if the Deed of Trust so requires, to the periodic escrow for the payment of premiums then due, and (1) to payment of all expenses for normal maintenance of the Premises. Any Rents remaining after application of the above items shall be apphed to the Indebtedness 7 No Liability for the Assignee. The Assignee shall not be obligated to perform or discharge, nor does it hereby undertake to perform or discharge any obligation, duty or liability under said Leases, nor shall this Assignment operate to place responsibility for the control, care, management or repair of the Premises upon the Assignee, nor for the carrying out of any of the terms and conditions of said Leases; nor shall it operate to make the Assignee responsible or hable for any waste committed on the Premises, or for any dangerous or defective condition of the Premises, or for any negligence in the management, upkeep, repair or control of said Premises resulting in loss or injury or death to any tenant, licensee, employee or stranger, nor hable for !aches or failure to collect the Rents, and the Assignee shall be required to account only for such moneys as are actually received by it All actions taken by the Assignee pursuant to this Assignment shall be taken for the purposes of protecting the Assignee's security, and the Assignor hereby agrees that nothing herein contained and no actions taken by the Assignee pursuant to this Assignment, including, but not limited to, the Assignee's approval or rejection of any Lease for any portion of the Premises, shall in any way alter or impact the obligation of the Assignor to pay the Indebtedness. The Assignor hereby waives any defense or claim that may now exist or hereinafter arise by reason of any action taken by the Assignee pursuant to this Assignment 8. Assignor to Hold Assignee Harmless. The Assignor shall and does hereby agree to indemnify and to hold the Assignee harmless of and from any and all liability, loss or damage which it may or might mcur under the Leases or under or by reason of this Assignment and of and from any and all claims and demands whatsoever which may be asserted against it by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants or 3407/1022,07/i 4/04 - 4 - 20040721001427.0C agreements contained in said Leases Should the Assignee incur any such liability, or any costs or expenses in the defense of any such claims or demands, the amount thereof, including costs, expenses, and reasonable attorney's fees, shall be secured hereby, shall be added to the Indebtedness, and the Assignor shall reimburse the Assignee therefor immediately upon demand, and the continuing failure of the Assignor so to do shall constitute a default hereunder and an Event of Default under the Deed of Trust. 9. Security Deposits. The Assignor agrees on demand to transfer to the Assignee any secunty deposits held by the Assignor under the terms of the Leases. The Assignor agrees that such security deposits may be held by the Assignee without any allowance of interest thereon, except statutory interest accruing to the benefit of the tenants, and shall become the absolute property of the Assignee upon a default hereunder or an Event of Default under the Deed of Trust to be applied in accordance with the provisions of the Leases. Until the Assignee makes such demand and the deposits are paid over to the Assignee, the Assignee assumes no responsibility to the tenants for any such security deposit. 10. Authorization to Tenants The tenants under the Leases are hereby irrevocably authorized and directed to recognize the claims of the Assignee or any receiver appointed hereunder without mvestigating the reason for any action taken by the Assignee or such receiver, or the validity or the amount of indebtedness owing to the Assignee, or the existence of any default in the Note, the Deed of Trust, or under or by reason of this Assignment, or the application to be made by the Assignee or receiver The Assignor hereby irrevocably directs and authorizes the tenants to pay to the Assignee or such receiver all sums due under the Leases and consents and directs that said sums shall be paid to the Assignee or any such receiver in accordance with the terms of its receivership without the necessity for a judicial determination that a default has occurred hereunder or under the Deed of Trust or that the Assignee is entitled to exercise its rights hereunder, and to the extent such sums are paid to the Assignee or such receiver, the Assignor agrees that the tenants shall have no further hability to the Assignor for the same. The sole signature of the Assignee or such receiver shall be sufficient for the exercise of any rights under this Assignment and the sole receipt of the Assignee or such receiver for any sums received shall be a full discharge and release therefor to any such tenants or occupants of the Premises. Checks for all or any part of the Rents collected under this Assignment shall upon notice from the Assignee or such receiver be drawn to the exclusive order of the Assignee or such receiver. 11. Satisfaction. Upon the payment in full of all Indebtedness as evidenced by a recorded satisfaction of the Deed of Trust executed by the Assignee, or its subsequent assign, this Assignment shall without the need for any further satisfaction or release become null and void and be of no further effect. 12. Assignee Creditor of the Tenants. Upon or at any time during the continuance of an Event of Default in the payment of any Indebtedness or in the performance of any obligation, covenant, or agreement herein or in the Note and Deed of Trust 3407/1022,07/14 /04 - 5 - ZU11407Z1 U01 4Z7.00 contained, the Assignor agrees that the Assignee, and not the Assignor, shall be and be deemed to be the creditor of the tenants in respect of assignments for the benefit of creditors and bankruptcy, reorganization, insolvency, dissolution, or receivership proceedings affecting such tenants (without obligation on the part of the Assignee, however, to file or make timely filings of claims in such proceedings or otherwise to pursue creditors' rights therein, and reserving the nght to the Assignor to make such filing in such event) with an option to the Assignee to apply any money received by the Assignee as such creditor m reduction of the Indebtedness. 13 Assignee- Attorney -In -Fact. The Assignor hereby irrevocably appoints the Assignee and its successors and assigns as its agent and attorney -in -fact, which appointment is coupled with an interest, to exercise any nghts or remedies hereunder and to execute and deliver during the term of this Assignment such instruments as this Assignee may deem necessary to make this assignment and any further assignment effective. 14 Subsequent Leases. Until the Indebtedness shall have been paid in full, the Assignor will deliver to the Assignee executed copies of any and all other and future leases upon all or any part of the said Premises and agrees to make, execute and deliver unto the Assignee upon demand and at any tune or times, any and all assignments and other instruments sufficient to assign the Leases and the Rents thereunder to the Assignee or that the Assignee may deem to be advisable for carrying out the true purposes and intent of this Assignment. From time to time on request of the Assignee the Assignor agrees to furnish the Assignee with a rent roll of the Premises disclosing current tenancies, rents payable, and such other matters as the Assignee may reasonably request 15. General Assignment of Leases and Rents. The nghts contained in this Assignment are in addition to and shall be cumulative with the rights given and created in Article 6 of the Deed of Trust, assigning generally all leases, rents and profits of the Premises and shall in no way limit the rights created thereunder. The giving of this Assignment is a condition precedent of the Assignee's to the making of the Deed of Trust loan secured hereby. 16 No Mortgagee in Possession. Nothing herein contained and no actions taken pursuant to this Assignment shall be construed as constituting the Assignee a "Mortgagee in Possession ". 17. Continuing Rights. The rights and powers of the Assignee or any receiver hereunder shall continue and remain in full force and effect until all Indebtedness, including any deficiency remaining from a foreclosure sale, are paid in full, and shall continue after commencement of a foreclosure action and, if the Assignee be the purchaser at the foreclosure sale, after foreclosure sale and until expiration of the equity of redemption. 3407/1022,07/14 /04 - 6 - "LUU4U/ Ll UU14L /.UU. 18 Successors and Assigns This Assignment and each and every covenant, agreement and provision hereof shall be binding upon the Assignor and its successors and assigns including, without limitation, each and every from time to time record owner of the Premises or any other person having an interest therein and shall inure to the benefit of the Assignee and its successors and assigns. As used herein the words "successors and assigns" shall also be deemed to mean the heirs, executors, representatives and administrators of any natural person who is or becomes a party to this Assignment. 19 Governing Law. This Assignment shall be governed by the laws of the State of Washington. 20. Validity Clause It is the intent of this Assignment to confer to the Assignee the rights and benefits hereunder to the full extent allowable by law. The unenforceability or invalidity of any provisions hereof shall not render any other provision or provisions herein contained unenforceable or invalid. Any provisions found to be unenforceable shall be severable from this Assignment. 21. Notices. Any notice which any party hereto may desire or may be required to give to any other party shall be in writing and either (a) mailed by certified mail, return receipt requested, or (b) sent by an overnight carrier which provides for a return receipt, or (c) sent by facsimile followed up by mailing of such notice by either of the methods set forth in Section 21(a) or (b) above on the day of sending such facsimile or the next succeeding business day. Any such notice shall be sent to the respective party's address as set forth on Page 1 of this Assignment or to such other address as such party may, by notice m writing, designate as its address. Any such notice shall constitute service of notice hereunder three (3) days after the mailing thereof by certified mail, one (1) day after the sending thereof by overnight carver, and on the same day as the sending of a facsimile pursuant to the terms hereof. 22 Costs of Enforcement. Assignor agrees to pay the costs and expenses, including but not limited to attorneys' fees and legal expenses incurred by Assignee in the exercise of any right or remedy available to it under this Assignment. If Assignee retains attorneys to enforce any of the terms of this Assignment, the Deed of Trust, the Note or any other loan document or because of the breach by Assignor of any of the terms thereof or for the recovery of any Indebtedness, Assignor shall pay to Assignee attorneys' fees and all costs and expenses, whether or not an action is actually commenced and the right to such attorneys' fees and all costs and expenses shall be deemed to have accrued on the date such attorneys are retained, shall include fees and costs in connection with litigation, arbitration, mediation, bankruptcy and/or administrative proceedings, and shall be enforceable whether or not such action is prosecuted to judgment and shall include all appeals. Attorneys' fees and expenses shall for purposes of this Assignment include all paralegal, electronic research, legal specialists and all other costs in connection with that performance of Assignee's attorneys. If Assignee is made a party defendant of any litigation concermng this Assignment 3407/1022,07/14 /04 - 7 - ZUU4U!'1"1 UU141 /.UU: or the Premises or any part thereof or therein, or the construction, maintenance, operation or the occupancy or use thereof by Assignor, then Assignor shall Indemnify, defend and hold Assignee harmless from and against all liability by reason of said litigation, including attorneys' fees and all costs and expenses incurred by Assignee m any such litigation or other proceedings, whether or not any such htigation or other proceedings is prosecuted to judgment or other determination. IN WITNESS WHEREOF, the Assignor has caused this Assignment of Leases and Rents to be executed as of the date first above wntten. FOSTORIA PARK ASSOCIATES, L.L.C., a Washington ' ed liability company By: Its: STATE OF VI trvii Div ) COUNTY OF E--t ) ss } On this I .41-14 day of L`r . , 2004, before me, the undersigned, a Notary Public in and for the State of tirri,t1M-T1,4 , duly commissioned and sworn, personally appeared fiffifenT ' ' N i tv PN , to me known to be the MTV ki5L7i of Fostoria Park Associates, L.L.C., a Washington limited liability company, the company that executed the foregoing instrument and acknowledged the said instrument to be the free and voluntary act of and dee of said company, for the uses and purposes therein mentioned, and on oath stated that ? Lk/N-72 authorized to execute the said instrument Witness my hand and seal the day and year first above wntten. My Commission Expires: --)A7c77077% 3407/1022,07/14 /04 4ex- o0 .;t SMOu `1 Notary Public res ding at S 0 .- »N �A�. 1111Pnnted Name: tar *w m/44- �; NOlhh 9 •• N 1/ .p — i • . �B��G I ii ..z.1 iI +1 sj• • 3 2 -� .. , - 8 - 20040721001427.01( EXHIBIT "A" LEGAL DESCRIPTION LOT 3, CITY OF TUKWILA SHORT PLAT NUMBER 79- 26 -SS, RECORDED UNDER RECORDING NUMBER 8004240503, IN KING COUNTY, WASHINGTON, AMENDED BY INSTRUMENTS RECORDED UNDER RECORDING NUMBERS 8210010841 AND 8607100861; BEING A PORTION OF TRACTS 16 AND 17, FOSTORIA GARDEN TRACTS, ACCORDING TO THE PLAT THEREOF, RECORDED IN VOLUME 9, OF PLATS, PAGE 95, IN KING COUNTY, WASHINGTON. 3407/1022,07/14 /04 OPPENHEIMER 2230669 v02 06/27/2004 STATE OF WASHINGTON CITY OF TUKWILA Department of Community Development 6300 Southcenter Boulevard, Tukwila, WA 98188 Telephone: (206) 431 -3670 FAX (206) 431 -3665 E-mail: tuknlan(aci.tukwila.wa.us AFFIDAVIT OF OWNERSHIP AND HOLD HARMLESS PERMISSION TO ENTER PROPERTY ss COUNTY OF KING The undersigned being duly sworn and upon oath states as follows: 1. I am the current owner of the property which is the subject of this application. 2. All statements contained in the applications have been prepared by me or my agents and are true and correct to the best of my knowledge. 3. The application is being submitted with my knowledge and consent. 4. Owner grants the City, its employees, agents, engineers, contractors or other representatives the right to enter upon Owner's real property, located at 4487 South 134th Place for the purpose of application review, for the limited time necessary to complete that purpose. 5. Owner agrees to hold the City harmless for any loss or damage to persons or property occurring on the private property during the City's entry upon the property, unless the loss or damage is the result of the sole negligence of the City. 6. The City shall, at its discretion , cancel the application without refund of fees, if the applicant does not respond to specific requests for items on the "Complete Application Checklist" within ninety (90) days. 7. Non - responsiveness to a City information request for ninety (90) or more days, shall be cause to cancel the application(s) without refund of EXECUTED at/ �j' Q (city), WA (state), on iJLY 2 / 2_0 0 26-6 (Print a i), /as-2_ fie gmeeW � (Addres !� _Wig. -2 5� On this day personally appeared before me the foregoing instrument and acknowledged that he /she signed the same as his/her voluntary act and deed for the mentioned therein. (Pho (Signatufe CA-S �t..nrysrn to me known to be the indivi � . %1 �o`��. ,. ted SUBSCRIBED AND SWORN TO BEFORE ME ON T DAY OF NOTAR�BQ(\ pnd for the S' t op f }�as}}iggton \, L Lim M residing at ,(�� (� My Commission expires on \ 1 R 1 a O0.-