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HomeMy WebLinkAbout20081320NUM PGS bOC TAX CK# FEES ~ PD ~~'~ CK# U 55410 ~ CNG ACCI'# RET FEESs._.. CASH _ R.O. D, CK# RETURNt~fSf /II`~~/'GIS~'Pt~ J~ „~ S~ r ~~r,(rPSS e1o of I~IIIVIInII~WVIMIIId'INII~'~ NUM ~ ~ Aid RD. COMP ~ ~ S3 COMPARE /~~_ " CADAS AO ~ +_ ASSIGNMENT OF LEASES AND RENTS ADAMS COUNTY, NE FILED INST. NO..~.~~ ~ 2 ~ Date y~Time / ~ ~ ~ ~~' REGISTER OF DEEDS THIS ASSIGNMENT, made as of February 29, 2008, by IRET Properties, a North Dakota Limited Partnership, whose mailing address is 12 South Main Street, ,~ „ Minot, North Dakota 58701 (Assignor) and Bremer Bank, National Association, a national banking association, whose mailing address is 20 First Street SW, Minot, North Dakota 58702 ("Assignee"). WITNESSETH THAT: WHEREAS, Assignor, to evidence and secure a loan indebtedness, has made and delivered to Assignee that certain Promissory Note dated of even date herewith (the "Note") in the principal amount of $1,787,000.00, with interest as therein expressed, and has executed and delivered that certain Deed of Trust ("Deed of Trust") dated of even date herewith to secure the Note and creating a lien on Assignor's interest in certain real estate in the Counties of Adams, Douglas and Dodge, State of Nebraska, more particularly described in Exhibit A attached hereto and made a -part hereof, together with the improvements, fixtures and personal property now or hereafter thereon and the easements, rights and appurtenances thereunto belonging, all of which are more particularly described in the Deed of Trust and are hereinafter collectively called the "Property"; and WHEREAS, Assignor is the lessor under various leases of the Property and Assignor may hereafter make other leases of the Property or parts thereof; and WHEREAS, Assignee has required the assignment hereafter made as a condition to making the above loan; NOW, THEREFORE, Assignor, for good and valuable consideration, the receipt of which is hereby acknowledged, for the purpose of securing payment of all sums, now or at any time hereafter due to the Assignee pursuant to the Note, the Deed of Trust or any other instrument which secures the Note, does hereby bargain, sell, transfer, assign, convey, set over and deliver unto Assignee, all rights of the lessor under all leases, sub-leases, licenses, concessions, tenancies, and other agreements creating the right of possession or right of use without transfer of title, whether written or oral, Return To: ~-I'`= p -~ I p ~ ~ ~ ~ First Nebraska Title ~ Attn: Lisa o fi ~ 2425 South 120`h Street Omaha, NE 68144 ~~o~~~~~ affecting the Property, or any part thereof, now existing or which may be executed at any time in the future during the life of this Assignment, and all amendments, extensions and renewals of said leases and any of them, all of which are hereinafter called the "Leases," and all rents, income and other payments which may now or thereafter be or become due or owing under the Leases, and any of them, or on account of the use of the Property unto Assignee, with the right, but without the obligation, to collect all of said rents, income and other, payments which may become due during the life of this Assignment. Assignor expressly grants and conveys a security interest in and to the Leases and in the rents generated thereby to Assignee, pursuant to Neb.Rev.Stat. ~ 52-1701 et.seq. Assignor agrees to provide Assignee with a rent roll of Leases of all or any portion of the Property at the end of each calendar year. 1. Assignor hereby appoints Assignee the true and lawful attorney of Assignor with full power of substitution and with power for it and in its Hams; place and stead, to demand, collect, receipt and give complete acquittances for any and all rents and other amounts herein assigned which may be or become due and payable by the lessees and other occupants of the Property, and at its discretion to file any claim or take any other action or proceeding and make any settlement of any claims, either in its own name or in the name of Assignor or otherwise, which Assignee may deem necessary or desirable in order to collect and enforce the payment of any and all rents and other amount herein assigned. Lessees of the Property, or any part thereof, are hereby expressly authorized and directed to pay ,all rents and other amounts herein assigned to Assignee or such nominee as Assignee 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. 2. Assignee is hereby vested with full power to use all measures, legal and equitable, deemed by it necessary or proper to enforce this Assignment and to collect the rents and other amounts assigned hereunder, including the right to enter upon the Property, or any part thereof, and take possession thereof forthwith to the extent necessary to effect the cure of any default on the part of Assignor as lessor in any of the Leases. Assignor hereby grants full power and authority to Assignee to exercise all rights, privileges and powers herein granted at any and all times thereafter, without notice to Assignor, with full power to use and apply all of the rents and other amounts assigned hereunder to the payment of the costs of managing and operating the Property and of any indebtedness or liability of Assignor to Assignee, 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 same rentable, attorney fees incurred in connection with the enforcement of this Assignment, and of principal and interest payments due from Assignor to Assignee on the Note and the Deed of Trust, all in such order as Assignee may determine. Assignee shall be under no obligation to pursue or press 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 2 ~ of 8 in the Leases; and Assignor covenants and agrees that it will faithfully perform all of the obligations imposed under any and all of the Leases and hereby agrees to indemnify Assignee and to hold it harmless from any liability, loss or damage which may or might be incurred by it under the Leases or by reason of this Assignment, and from any and all claims and demands whatsoever which may be asserted against Assignee by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants or agreements contained in .any of the Leases. This Assignment shall not operate to place responsibility for -the control, care, management or repair of the Property, or parts thereof, upon Assignee nor shall it operate to make Assignee liable for the carrying out of any of the terms and conditions of any of the Leases, or for any waste of the Property by the lessee under ahy of the Leases or any other party, or for any dangerous or defective condition of the Property or for any negligence in the management, upkeep, repair or control thereof resulting in loss or injury or death to any lessee, licensee, employee or stranger. 3. Any amounts collected hereunder by Assignee which are in excess of those applied to pay in full the aforesaid liabilities and indebtedness at the time due shall be promptly paid to Assignor. 4. Assignor hereby represents and warrants to Assignee that it is the sole owner of the entire lessor's interest in each of the Leases; that, to the best of Assignor's knowledge and based on information contained in the estoppel certificates, the Leases are not in default and are valid and enforceable and have not been altered, modified or amended in any manner whatsoever except as herein expressly mentioned; that Assignor has not heretofore transferred or assigned the Leases or any of the rents thereunder or any right or interest therein, nor has it collected in advance or anticipated any of the rents thereunder; and Assignor represents and warrants that it is not indebted to the lessees under the Leases in any manner whatsoever so as to give rise to any right of set-off against, or reduction of, the rents payable under the Leases. 5. Assignor will not make any transfer or assignment thereof, or convey or transfer or suffer a conveyance or transfer of the Property or of any interest therein so as to effect, directly or indirectly, a merger of the estates. and rights of, or a termination or diminution of the obligations of, any lessee thereunder. Assignor further covenants to deliver to Assignee, promptly upon receipt thereof, copies of any and all demands, claims and notices of default received by it from any lessee under any of the Leases assigned herein. 6. Assignor will transfer and assign to Assignee as and when specifically requested in writing by Assignee, any and all Leases upon all or any part of the Property upon the same or substantially the same terms and conditions as are herein contained, and to properly file or record such assignments, at Assignor's expense, if requested by Assignee. 3 ~®~ ~ 200~~.~~u 7. Assignor will provide, with respect to each lease, at the request of Assignee, subordination agreements, estoppel certificates and agreements relating to attornment, all in form and substance satisfactory to Assignee. 8. Assignor will promptly execute, upon written request of the Assignee, any and all instruments requested by the Assignee to carry this Assignment into effect or to accomplish any other purposes deemed by the Assignee to be reasonably necessary or appropriate in connection with this Assignment. 9. At the written request of Assignee, and at Assignor's sole cost and expense, Assignor will 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 lessor, lessee or any guarantor thereunder. 10. Upon the occurrence of an Event of Default under the Loan Agreement, or any default in any of the terms and conditions of any Lease, then Assignee, but without obligation so to do, and without notice to or demand on Assignor, and without releasing Assignor from any obligation herein or in the Note, Deed of Trust or any Lease, may make or do the same and correct any such default in such manner and to such extent as Assignee may deem necessary to protect the security hereof, including specifically, without limiting its general powers, the right to appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Assignee, and also the right to perform and discharge each ,and every obligation, covenant and agreement of Assignor in any Lease contained; and, in exercising any such powers, to pay necessary costs and expenses, employ counsel and incur and pay reasonable attorneys' fees. 11. Assignor agrees to pay to Assignee upon demand all sums expended by, and all indebtedness incurred by Assignee under the authority of this Assignment, together with interest thereon at the same rate as set out in and determined by the Note, and the same shall be added to the sums secured hereby and by the Deed of Trust. 12. Assignor agrees that upon any time (i) after the occurrence of an Event of Default under the Loan Agreement, or (ii) after the first publication of notice of sale for the foreclosure of the Deed of Trust pursuant to applicable Nebraska Statutes, or (iii) after the commencement of an action to foreclose the Deed of Trust pursuant to applicable Nebraska Statutes, or (iv) during the period of redemption after foreclosure of the Deed of Trust, then in any such event, Assignee, shall, upon application to the district court where the Property or any part thereof is located, by an action separate from the foreclosure, be entitled to the- appointment of a receiver for the rents, profits and all other income of every kind which shall accrue and be owing for the use or occupation of the Property or any part thereof. 13. The Assignee shall be entitled to the appointment of a receiver without regard to waste, adequacy of the security or solvency of the Assignor. The receiver, 4 ~-°f ~ 20081320 who shall be an experienced property manager, shall collect (until the indebtedness secured hereby is paid in full and, in the case of a foreclosure sale, during the entire redemption period) the rents, profits and all other income of every kind, manage the Property so to prevent waste, execute leases within or beyond the period of the receivership if approved by the court and apply all rents, profits and other income collected by him in the following order: (a) to the payment of all reasonable fees of the receiver, if any, approved by the court; (b) to the repayment of tenant security deposits, with" interest thereof, as required by applicable Nebraska Statutes; (c) to the payment when due of delinquent or current real estate taxes or special assessments with respect to the Property, or the periodic escrow for the payment of the same; (d) to the payment when due of premiums for insurance of the type required by the Deed of Trust, or the periodic escrow for payment of the same, if any; (e) to payments necessary for keeping of the covenants required of a lessor or licensor pursuant to applicable Nebraska Statutes; (f) to the payment of expenses for normal maintenance of the Property; and (g) the balance to the Assignee (i) if received prior to the foreclosure sale, to be applied to the amount secured hereby, and (ii) if received during the period of redemption, to be applied first to any deficiency and after payment in full of such deficiency, to be paid fo the purchaser (including Assignee) at the foreclosure sale, to be credited against the indebtedness secured hereby or the amount required to be paid to effect a reinstatement or redemption of the Deed of Trust, as the case may be, pursuant to applicable Nebraska Statutes. The entire amount paid to the Assignee pursuant hereto shall be the property of the Assignee together with all or any part of the Property acquired through foreclosure. The Assignee shall have the right, at any time and without limitation as provided in applicable Nebraska Statutes, to advance money to the receiver to pay any part or all of the items which the receiver should otherwise pay if cash were available from the Property and sums so advanced with interest at the rate provided in the Note, shall be secured hereby, or if advanced during the period of redemption shall be a part of the sum required to be paid to redeem from the sale. 14. At any time while Assignee is entitled to the appointment of a receiver as hereinbefore provided but prior to the appointment of a receiver, Assignee shall have the right to collect the rents, profits and other income of every kind from the Property 5 ~o~ ~ ~UU$~.32U and apply the same in the manner hereinbefore provided with respect to a receiver. For the purpose aforesaid, Assignee may enter and take possession of the Property and manage and operate the same and take any action which, in the Assignee's judgment, is necessary or proper to conserve the value of the Property. Assignee may also take possession of, and for these purposes use, any and all of the personal property and fixtures contained in the Property. The expense (including any receiver's fees, attorneys' fees, costs and agent's compensation) incurred. pursuant to the powers herein contained shall be secured hereby. Assignee shall not be liable to account to Assignor for any action taken pursuant hereto other .than to account for any rents actually received by Assignee. As additional and collateral security for the payment of the Note, Assignor will, as required from time to time by Assignee, assign to Assignee or its nominee by specific or general assignment, any leases now or hereafter made upon the Property, such assignments to be in form and content acceptable to Assignee. 15. Upon payment in full of the principal sum, interest and other indebtedness secured hereby, this Assignment shall be and become null and void; otherwise, it shall remain in full force and effect as herein provided and, with the covenants, warranties and power of attorney herein contained, shall inure to the benefit of Assignee and any subsequent holder of the Note, and shall be binding upon Assignor, and its heirs, legal representatives, successors and assigns, and any subsequent owner of the Property. 16. Notwithstanding any provision herein to the contrary, prior to the occurrence of an Event of Default by Assignor under the Deed of Trust, Assignee hereby grants to Assignor the license to collect as the same become due and payable, but in any event for not more than one calendar month in advance, all rents and other income arising under the Leases and from the Property, and to enforce all provisions contained in the Leases. The license herein granted to Assignor shall terminate immediately upon the occurrence of an Event of Default in the Deed of Trust; and upon written notice thereof at any time hereafter given by Assignee to any lessee, all rentals thereafter payable and all agreements and covenants thereafter to be performed by the lessee shall be paid and performed by the lessee directly to Assignee in the same manner as if the above license had not been granted, without prosecution of any legal or equitable remedies under the Deed of Trust. Any lessee of the Property or any part thereof is authorized and directed to pay to Assignor any rent herein assigned currently for not more than one calendar month in advance and any payment so made prior to receipt by such lessee of notice of Assignor's default shall constitute a full acquittance to lessee therefor. 17. This Assignment shall be construed and enforced according to the laws of the State of Nebraska. ,. 18. It is understood and agreed that this Assignment shall become effective concurrently with the Note and the Deed of Trust. 19. The parties hereto expressly agree that this Assignment shall be executed by Assignor in triplicate original in order to facilitate the recording of this Assignment in 6 (~ o f ~ 2U0~132U the office of the Register of Deeds for the three different counties on or about the same date in order to perfect the security interest granted by the Assignor herein as soon as possible. IN WITNESS WHEREOF, Assignor has caused this Assignment to be duly executed and delivered as of the date first hereinabove written. IRET Properties, a North Dakota Limited Partnership By IRET, Inc. Its General Partner By `~ /~-~..---~ Thomas A. Wentz, Jr Its Senior Vice.,Pcesident STATE OF NORTH DAKOTA COUNTY OF '~ )ss. NOTARY PUBLIC ~o The foregoing instrument was acknowledg ~' e this ~ ~ day of February, 2008, by Thomas A. Wentz, Jr., the Senior resident of IRET, Inc., a North Dakota corporation, as General Partner of IRET Properties, a North Dakota Limited Partnershi alt of the partnership. """w p N LEIDHOLT ~~ Notar}' 3'Ublic ~~ % / of Nc:.~:i'~ laic°ta ~ State ~t ~~,, 2p1? ~,,r"~'" Notary Public My Commission . ; ~ ,._ ~,~.. This instrument drafted by: Christoffel & Elliott, P.A. 1111 UBS Plaza 444 Cedar Street St. Paul, Minnesota 55101-2129 (651) 224-0244 ko/1218.286-NE Assignment 4 7 7 °~ ~ 24081320 EXHIBIT A LEGAL DESCRIPTION The land herein referred to is situated in the Counties of Adams, Douglas and Dodge, State of Nebraska and is described as follows: PARCEL 1: (ADAMS COUNTY) Lot 6, Block 1, Westridge Addition to the City of Hastings, Adams County, Nebraska. PARCEL 2: (DOUGLAS COUNTY) Lot 1, Spring Ridge Replat 4, an Administrative Subdivision; being a replat of Lot 16, Spring Ridge Replat Three, a Subdivision, as surveyed, platted and recorded in Douglas County, Nebraska. PARCEL 3: (DODGE COUNTY) Lot 1, Shalimar Third Addition, an addition to the City of Fremont, Dodge County, Nebraska. ~. 8 ~of~