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HomeMy WebLinkAboutAssignment of Contract and Rights - Hearthview Old Town II, LLC ASSIGNMENT OF CONTRACT AND RIGHTS THIS ASSIGNMENT ("Assignment") is made as of this 27th day of October, 2006, by HEARTHVIEW OLD TOWN II, LLC, an Indiana limited liability company, with its principal office at 6930 Atrium Boardwalk South, Suite 100, Indianapolis, Indiana 46250 ("Assignor"), in favor of FIFTH THIRD BANK, INDIANA (CENTRAL), a Michigan banking corporation, having an office at 251 North Illinois Street, Suite 1000, Mail Drop 8940A1, Indianapolis, Indiana 46204 ("Lender"). - WHEREAS, Lender has agreed to make a loan ("Loan") to Assignor of even date herewith up to the original principal amount of Six Hundred Eighty Thousand and 00/100 Dollars ($680,000.00); and WHEREAS, to evidence the Loan, Assignor has executed and delivered to Lender a Mortgage Note dated of even date herewith in the original principal amount of Six Hundred Eighty Thousand and 00/100 Dollars ($680,000.00) (as the same may be amended, extended, modified, restated, increased, decreased and/or replaced from time to time, hereinafter collectively referred to as the "Note"); and WHEREAS, to secure payment of the Note, Assignor has executed and delivered to Lender a Mortgage of even date herewith (as the same may be amended, extended, modified, restated and/or replaced from time to time, hereinafter referred to as the "Mortgage"); and WHEREAS, Lender, as a condition to making the Loan evidenced by the Note, has required the execution of this Assignment; NOW, THEREFORE, in consideration of the Loan and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties hereto agree as follows: • 1. Assignment of Collateral: (a) Assignor does hereby grant a security interest in, to and under, and does hereby further transfer, assign and deliver to Lender presently, absolutely, and unconditionally all of Assignor's right, title and interest in, to and under the following "Collateral": (i) all rights and benefits of whatsoever nature derived or to be derived by Assignor under and by virtue of the Assignor's interest, whether now owned or hereinafter acquired in, to and under that certain Development Agreement by and between Assignor and The City of Carmel Redevelopment Commission dated October , 2006 ("Development Agreement"), together with any and all security interests, deposits, and the like, made thereunder or in connection therewith, all extensions, amendments, modifications, renewals and replacements of any thereof; (ii) all of the revenues, profits, proceeds, insurance proceeds, damages for breach thereof, settlements, covenants, promises, warranties and any other benefits at any time occurring now or hereafter accruing or owing from or otherwise derived from the MORIMD 710861 1-learthview Old Town 11,LLC October 25,2006 Development Agreement, including, without limitation, all amounts payable on account of any indemnification, charge-back or loss thereunder (hereinafter collectively the "Contract Proceeds"); and (iii) all proceeds of all of the foregoing described Collateral, including without limitation, proceeds of the conversion, voluntary or involuntary, of any of the foregoing into cash or liquidated claims, proceeds of insurance policies, or resulting from the sale, hypothecation or transfer of any of the Collateral and all products, renewals, accessions and additions to any of the Collateral. (b) All of the foregoing described Collateral is being hereby granted, transferred and assigned absolutely and secures: (i) payment of all indebtedness evidenced by the Note (including all extensions, modifications, future advances or renewals thereof) and all other sums secured by the Mortgage; and (ii) payment, performance and discharge of each and every obligation, covenant and agreement of Assignor contained herein, in the Note, the Mortgage, and the Loan Documents (as defined in the Note and the Mortgage). 2. Assignor warrants and represents that: (a) Assignor has not previously assigned, pledged, mortgaged, or encumbered all or any part of the Collateral assigned herein except to Lender. (b) Assignor has not performed any act or executed any instrument and is not bound by any law, indenture, or agreement which might prevent the Lender from operating under any of the terms and conditions hereof, or which would limit the Lender in such operation. (c) No Contract Proceeds have been or will be paid by any other party to the Development Agreement, nor have been or will be accepted by Assignor, in advance, and the payment of none of the Contract Proceeds has been or will be in any manner anticipated, waived, released, executed, reduced, discounted, or otherwise discharged or compromised by Assignor. (d) The Development Agreement existing on the date hereof is in full force and effect; and there is no default now existing thereunder, nor has any event occurred which, with the passage of time, would constitute a default thereunder. (e) Assignor is the sole owner of the Assignor's entire interest in the Development Agreement and all other Collateral; Assignor has the full right to assign the Collateral; there has been no previous assignment of the Collateral, or any part thereof, except to Lender; the Development Agreement is valid and enforceable in accordance with its terms; and Assignor has not committed or permitted any act or event to occur that would prevent Lender from or limit the Lender in operating under any of the provisions of this Assignment. 2 MORIMD:710S61 Hearthview Old Town II,LLC:October 25,2006 3. Covenants: (a) Assignor shall faithfully abide by, perform and discharge each and every term, condition, obligation, covenant and agreement, which Assignor is now, or hereafter becomes, liable to observe or perform under the Development Agreement; give prompt written notice to Lender of any notice of default received by Assignor with respect to any default of Assignor under the Development Agreement, which default could cause a material adverse effect on the financial condition or prospects of Assignor, together with an accurate, complete copy of any such notice; at the sole cost and expense of Assignor, enforce or secure the performance of each and every term, obligation, covenant, condition and agreement to be performed under the Development Agreement; and to provide Lender with an accurate, complete copy of any notice of default issued by Assignor with respect to the Development Agreement, which default could cause a material adverse effect on the financial condition or prospects of Assignor, when so sent by Assignor. (b) At Assignor's sole cost and expense, Assignor shall appear in and defend any dispute, action or proceeding arising under, growing out of or in any manner connected with the Development Agreement, and to pay all costs and expenses of Lender, including reasonable attorneys' fees, in connection with any such dispute, action, or proceeding in which Lender may appear or with respect to which it may incur costs or expenses. (c) Upon the occurrence of an Event of Default (as defined in the Mortgage), then Lender may, but without obligation to do so, without notice or demand to or upon Assignor, and without releasing Assignor from any obligation hereof, make or do the same in such manner and to such extent as Lender may deem necessary to protect its interests under the Development Agreement and the Note and its security therefor, including specifically, without limiting its general powers, appearing in and defending any action or proceeding relating hereto or to the Development Agreement, or purporting to affect the security hereof or the rights or powers of Lender hereunder, and also performing and discharging each and every obligation, covenant, and agreement of Assignor contained in the Development Agreement; and in exercising any such powers Lender may pay necessary out-of-pocket costs and expenses, employ counsel, and incur and pay reasonable attorneys' fees. Assignor hereby grants to Lender an irrevocable power of attorney coupled with an interest and with full power of substitution to perform all of the acts and things provided in this Section, as Assignor's agent and in Assignor's name. Assignor hereby indemnifies and holds Lender harmless from and waives any claims or causes it may have against Lender arising from or as a result of any actions or inactions of Lender in connection with the Development Agreement. (d) Assignor shall pay immediately upon demand all sums expended by Lender under the authority hereof, together with interest thereon at the Default Rate set forth in the Note and the same shall be secured hereby and by the Mortgage and the Loan Documents. (e) Until the indebtedness and all obligations secured hereby shall have been paid and satisfied in full, Assignor shall (i) hold the Development Agreement in trust for the benefit of Lender hereunder, and upon written request of Lender, provide Lender with executed originals or, to the extent originals do not exist, copies of the Development Agreement, and (ii) make, 3 MORIMD:710861 Hearthview Old Town II,LLC:October 25,2006 execute and deliver to Lender, upon demand, any and all instruments that may be necessary or desirable therefor in the sole judgment of Lender. (f) Assignor will not execute or agree to any assignment of the Development Agreement, Contract Proceeds, or any other collateral subsequent to the date hereof. (g) Assignor hereby indemnifies the Lender, its successors and assigns, against, and agrees to protect, save and keep it harmless from, any and all liabilities, obligations, charges, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements, including without limitation, court costs, reasonable legal fees, and expenses through all trial, appellate and administrative levels and all bankruptcy and post judgment proceedings (all of which are hereinafter referred to collectively as the "Expenses"), of whatsoever kind and nature, imposed on, incurred by or asserted against any such indemnified party, in any way relating to, arising out of, or in connection with any of the foregoing representations, warranties, and covenants of Assignor herein set forth or any actions or inactions of any such indemnified party in connection with the Development Agreement. 4. Use of Collateral: (a) Notwithstanding that this Assignment constitutes a present and absolute assignment, and as long as there exists no Event of Default, the Assignor shall have a conditional license: (i) to collect, but not prior to accrual, all Contract Proceeds and other sums owing with respect to the Development Agreement, in trust for Lender, and to use the same for the payment of sums, costs and expenses which Assignor is required to pay under and pursuant to the Note and the Mortgage, and the indebtedness secured hereby as and when due, before using said Contract Proceeds and other sums for any other purpose; (ii) to enter into, execute, deliver, amend, extend and take any and all actions which Assignor, in its business judgment, deems necessary in connection with the Development Agreement; (iii) to prosecute or defend any suits in connection with the Development Agreement; and (iv) to take any and all other actions necessary to protect the Development Agreement, Contract Proceeds, and the Collateral; provided, however, that all actions taken pursuant to (i) through (iv) preceding shall be in compliance with, and not prohibited by, any provision of this Assignment or the Mortgage. 5. Event of Default: (a) Upon the occurrence of an Event of Default, Lender without in any way waiving such Event of Default may, at its option (but without any obligation to do so), without notice and without regard to the adequacy of the security for the said principal sum, interest, and indebtedness secured hereby and by the Mortgage and the Loan Documents, either in person or 4 MORIMD:710861 Hearthview Old Town II,LLC:October 25,2006 by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, take possession of the Collateral and have, hold, manage, sell, transfer and/or dispose of, or otherwise perform any of Assignor's obligations under, the Development Agreement, Contract Proceeds and Collateral in accordance with the terms and conditions of the Development Agreement and either with or without taking possession of the Collateral in its own name, sue for, or otherwise collect and receive all Contract Proceeds. The Lender shall not be responsible for diligence in collecting any moneys as contemplated herein, but shall be accountable only for sums actually received. Except as provided in paragraph (b) below, the Lender shall not be responsible for proper performance of any of Assignor's obligations under the Development Agreement, and Assignor hereby waives any claim it may at any time have against Lender, whether arising in negligence or tort or any other cause of action, from the performance or failure to perform any such obligation. (b) Assignor understands and agrees that the Lender in the exercise of the rights, interests, and powers conferred upon it by this Assignment shall have full power to use and apply the Contract Proceeds and profits of the Collateral in accordance with the terms and conditions of the Development Agreement, and then to the extent of any excess, to the payment of or on account of the following, in such order as the Lender may determine: (i) To the payment of all expenses of the Lender and its agent or agents; (ii) To the payment of taxes and assessments now due or which may hereafter become due on the Collateral; and (iii) To the payment of all obligations owed to Lender by Assignor in connection with or pursuant to the Note, the Mortgage and the Loan Documents and any indebtedness secured by this Assignment or by the Mortgage or any deficiency which may result from any sale of the Collateral. (c) If any Event of Default shall occur, then Lender may, at its option, declare all sums secured hereby immediately due and payable, and, in addition to any remedies herein set forth, such Event of Default by Assignor shall, at Lender's sole option, constitute and be deemed to be a default, Default or Event of Default (as appropriate) under the terms of the Note, the Mortgage, and the Loan Documents, entitling Lender to all rights and remedies therein contained, in addition to those rights and remedies herein set forth, without regard to the adequacy of the security for the indebtedness secured hereby, the commission of waste or the insolvency of Assignor. (d) If Lender shall waive any of its powers or rights hereunder or any breach or default, Default or Event of Default (as appropriate) by Assignor, such waiver shall not be deemed to waive any of Lender's powers or rights on any future occasion. Delay or failure by Lender to exercise or claim, in whole or in part, any such power or right shall not be deemed a waiver of such power or right; no single or partial exercise of any right or power hereunder shall preclude any other or further exercise of Lender's rights or powers. The rights and remedies hereunder expressly specified are in addition to, but not exclusive of, the rights and remedies of Lender under applicable law. 5 MORIMD:71 0861 Hearthview Old Town II,LLC:October 25,2006 6. Miscellaneous: (a) If any term of this Assignment shall be held to be invalid, illegal or unenforceable, the validity of the other terms hereof shall be in no way affected thereby. Lender shall be entitled to all rights and remedies available at law, in equity or under any statute, either now available or available at the time of exercise thereof, even though such rights and remedies were not available on the date first above written. (b) The covenants and agreements herein contained shall be binding upon Assignor, its heirs, legal representatives, successors and assigns and shall inure to the benefit of Lender, its legal representatives, successors, and assigns, provided, however, that nothing in this section is intended to be or shall be construed as a waiver of the rights of Lender under the Mortgage and the Loan Documents or to permit assignment of the rights and obligations of Assignor under this instrument and any such assignment is expressly prohibited except upon the prior written consent of Lender, which consent may be arbitrarily withheld. (c) This present Assignment is absolute, unconditional, separate and not part of the security of the Mortgage. All rights and remedies herein conferred may be exercised whether or not proceedings are pending under the Mortgage. Lender shall not be required to resort first to the security of this Assignment or of the Mortgage before resorting to the security of any other Loan Documents, and Lender may exercise the security hereof and of the Mortgage concurrently or independently and in any order or preference. The existence of this Assignment shall not be construed as a waiver by Lender or its successors and assigns of the right to enforce payment of the indebtedness hereinabove referred to, in strict accordance with the terms and provisions of the Note, the Mortgage, and the Loan Documents for which this Assignment is given as additional security. (d) All notices, demands, or documents which are required or permitted to be given or served upon Assignor or Lender when given shall be deemed given or served upon Assignor or Lender when given as provided in the Mortgage. Each party hereto may change its address from time to time by serving written notice thereof upon the other party hereto as above provided at least ten (10) days prior to the effective date of such change of address. (e) Upon the payment in full of all indebtedness secured hereby, this Assignment shall become and be void and of no effect. (f) Any capitalized terms used herein and not defined herein shall have the meaning ascribed thereto in the Loan Documents. (g) This Assignment and the interpretation and enforcement thereof, will be governed and construed in accordance with the laws of the State of Indiana, except where specifically preempted by federal law. (h) Assignor agrees not to amend, modify or terminate the Development Agreement without Lender's prior written consent. ASSIGNOR HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN 6 MORIMD:710861 Hearthview Old Town II,LLC:October 25,2006 RESPECT OF ANY LITIGATION ARISING IN CONNECTION WITH THIS ASSIGNMENT, THE OTHER DOCUMENTS REFERENCED HEREIN OR EXECUTED IN CONNECTION HEREWITH, AND THE TRANSACTIONS CONTEMPLATED THEREIN, AND ALL OR ANY COMBINATIONS OF THE FOREGOING. ASSIGNOR HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF LENDER NOR LENDER'S COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. ASSIGNOR ACKNOWLEDGES THAT LENDER HAS BEEN INDUCED TO ENTER INTO AND ACCEPT THIS ASSIGNMENT, BY, INTER ALIA, THE PROVISIONS OF THIS PARAGRAPH. IN WITNESS WHEREOF, the Assignor and the Lender have executed these presents at Indianapolis, Indiana, as of this 27th day of October, 2006. Hearthview Old Town II, LLC, an Indiana limited liability company By: Brian K. Cranor, Manager Fifth Third Bank, Indiana (Central), a Michigan banking corporation By: John C. Wise, Vice President 7 MORIMD:710861 • Hearthview Old Town II,LLC:October 25,2006 STATE OF INDIANA ) ) SS: COUNTY OF MARION ) Before me, a Notary Public, in and for said county and state this day of October, 2006, personally appeared Hearthview Old Town II, LLC, an Indiana limited liability company, by Brian K. Cranor, its Manager, who acknowledged for and on behalf of the limited liability company the execution of the foregoing Assignment of Contract and Rights as the free and voluntary act and deed of said limited liability company, and who, having been duly sworn under penalties of perjury, stated that the representations therein contained are true for the uses and purposes therein mentioned. Witness my hand and Notarial Seal. Notary Public Printed Name My Commission Expires: My County of Residence: 8 MORIMD:710861 Hearthview Old Town II,LLC:October 25,2006 STATE OF INDIANA ) ) SS: COUNTY OF MARION ) Before me, a Notary Public, in and for said county and state this day of October, 2006, personally appeared Fifth Third Bank, Indiana (Central), a Michigan banking corporation, by John C. Wise, its Vice President, who acknowledged for and on behalf of the banking corporation the execution of the foregoing Assignment of Contract and Rights as the free and voluntary act and deed of said banking corporation, and who, having been duly sworn under penalties of perjury, stated that the representations therein contained are true for the uses and purposes therein mentioned. Witness my hand and Notarial Seal. Notary Public Printed Name My Commission Expires: My County of Residence: 9 MORIMD:710861 Hearthview Old Town II,LLC:October 25,2006 CONSENT TO ASSIGNMENT OF CONTRACT AND RIGHTS The undersigned, The City of Carmel Redevelopment Commission ("CRC"), agrees to notify the Lender (as defined in the foregoing Assignment of Contract and Rights) of a default by Assignor under the Development Agreement (as defined in the foregoing Assignment of Contract and Rights). Further, CRC consents to the foregoing Assignment of Contract and Rights and agrees not to amend, modify or terminate the Development Agreement except as permitted under the foregoing Assignment of Contract and Rights and without the prior written notice to Lender. Dated this 27th day of October, 2006. The City of Carmel Redevelopment Commission 40,afiv;R6.f_elat By: Zature), Title it4(1?-6 d(0a0/tir (Printed), Title 10 MORIMD:710861 Hearthview Old Town II,LLC:October 25,2006 STATE OF INDIANA ) ) SS: COUNTY OF ) Before me, a Notary Public, in and for said county and state this 46 day of October, 2006 personally appeared Tb_e City f Cannel Redevelopment Commission, by I/�� (Jailor , its PreW , who acknowledged for and on behalf of The City of Cannel Redevelopment Commission the execution of the foregoing Consent to Assignment of Contract and Rights as the free and voluntary act and deed of The City of Carmel Redevelopment Commission, and who, having been duly sworn under penalties of perjury, stated that the representations therein contained are true for the uses and purposes therein mentioned. Witness my hand and Notarial Seal. 4otto, a Notary Public Vairfkli 4: gr000K =` Printed Name r -- My Commission Expires: My County of Residence: O� G6 © WU ffr This instrument prepared by: Michael D. Moriarty, Attorney-at-Law, Locke Reynolds LLP, 201 North Illinois Street, Suite 1000, P.O. Box 44961, Indianapolis, Indiana 46244-0961. 11 MORIMD:710861 Hearthview Old Town II,LLC:October 25,2006