HomeMy WebLinkAboutC2011-251 - 5/10/2011 - NANOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU
MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS
INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR
SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
ASSIGNMENT OF LEASES AND RENTALS
This ASSIGNMENT OF LEASES AND RENTALS (hereinafter referred to as
"Assignment ") is made by Costa Tarragona II, Ltd. (hereinafter referred to as "Assignor "), a
Texas limited partnership, for benefit of the Corpus Christi Community Improvement
Corporation (hereinafter referred to as "Assignee "), a Texas nonprofit corporation as of
AIA 2011..
WITNESSETH:
For value received and as additional security for the indebtedness hereinafter mentioned,
Assignor hereby assigns, transfers and conveys unto Assignee all of the right, title and interest of
Assignor in and to the rents, issues, profits, revenues, royalties, rights and benefits (hereinafter
referred to as "rents ") from the following described property:
The property described on Exhibit A attached.
In addition, Assignor hereby assigns, transfers and conveys unto the said Assignee any
and all leases and rental agreements relating to said Property (hereinafter referred to as "leases "),
now existing or hereafter made, executed or delivered, whether written or verbal, including all
amendments thereto.
The term of this Assignment shall be until that certain Real Estate Lien Note (the "Note ")
of even date herewith executed by Assignor for the construction of Ninety -six (96) rental units at
the Villas of Costa Tarragona II, the subject Property herein, in favor of Assignee in the original
principal amount of Seven Hundred Seventy -Seven Thousand Nine Hundred Sixty -Four Dollars
($777,964.00), together with any renewal, extension or modification thereof (hereinafter referred
to as "Note "), shall have been fully paid and satisfied, at which time this Assignment shall be
fully satisfied, canceled and released. Said Note is additionally secured by a Third Lien
Leasehold Deed of Trust (the "Deed of Tryst ") of even date herewith to be executed by Assignor
in favor of Assignee. Said Deed of Trust and Note, together with this Assignment, that certain
"Declaration of Restrictive Covenant of Affordability" of even date herewith executed by
Assignor, and that certain "HOME Loan Agreement" of even date herewith executed by
Assignor, shall be hereinafter referred to as the "Loan Documents."
Subject to the terms and conditions of that certain Subordination Agreement (hereinafter
referred to herein as' the "Subordination Agreement ") by and between Sterling Bank, a Texas
state .banking association, as Trustee, Corpus Christi Community Improvement Corporation, and
Costa Tarragona II, Ltd., a limited partnership, dated as of even date herewith:
2011 -251
05/10/11 1
Assignment of Leases and Rentals
Costa Tarragona II INDEXED
1. Assignor does hereby authorize and empower Assignee to collect the rents
payable under the leases as they shall become due, and does hereby direct each and all of the
tenants to pay such rents as they become due to Assignee upon demand for payment thereof by
said Assignee. It is understood and agreed, however, that no such demand shall be made unless
and until there has been a default beyond all applicable notice and cure periods in either the
payment of the Note, the payment of any other sum secured by the Loan Documents, or the
performance of any of the covenants set forth in the Note, the Loan Documents or this
Assignment; and, until such demand is made, Assignor is authorized to collect or continue to
collect the rents, but such privilege of Assignor to collect or continue to collect the rents shall not
operate to permit the collection by Assignor of any installment of rent more than one month in
advance, other than rents collected and held as a security deposit. If a default is timely cured to
the reasonable satisfaction of Assignee by Assignor, tenants shall resume paying rents to
Assignor.
2. The authority and power of Assignee to collect the rents, as set forth herein, may
be exercised and said rents may be collected with or without the taking of possession of the
Property, or any part thereof, and without the necessity of Assignee instituting foreclosure under
the Loan Documents and /or instituting an action upon the Note or upon this Assignment.
Nothing herein, however, shall be construed to prohibit Assignee from instituting such
foreclosure or such actions upon the Note or upon this Assignment.
3. In furtherance of this Assignment, Assignor does hereby additionally authorize
and empower Assignee, through its employees, agents or representatives at the option of
Assignee and upon the occurrence of any default continuing beyond any applicable notice and
cure period, to enter upon the Property and to collect, in the name of Assignor or in its own name
as Assignee, the rents accrued but unpaid and in arrears on the date of such default, as well as the
rents thereafter accruing and becoming payable during the period this Assignment is operative;
to this end, Assignor further agrees to cooperate and to assist Assignee, its employees, agents or
representatives, in all reasonable ways with collection of said rents.
4. Assignor does hereby authorize, but nothing herein shall be deemed to require or
obligate, Assignee, upon such entry onto the Property, to take over and assume its management,
operation and maintenance, to perform all acts necessary and proper in its sole discretion, and to
expend such sums as may be reasonably necessary in connection therewith, including the
authority to effect new leases, to cancel or surrender existing leases, and/or to make concessions
to tenants, with Assignor releasing all claims against Assignee arising out of such management,
operation and maintenance, excepting the liability of Assignee to account as hereafter set forth.
5. Assignee, after payment of all proper charges and expenses, including reasonable
compensation to such agents, employees or representatives as shall have been selected or
employed, and after the accumulation of a reasonable reserve to meet taxes, if any, assessments,
utility rents and fire and liability insurance in requisite amounts, shall credit the net amount of
income received by it by virtue of this Assignment to any amounts due and owing to it under the
terms of the Note and Loan Documents, but the manner of the application of such net income
and the determination of which items to be credited shall be in accordance with the sole
discretion of Assignee. Any remaining amounts after all payments and credits have been made
in accordance with this paragraph shall be paid to Assignor.
W
6. Assignor expressly covenants and agrees with Assignee that at the time of
execution and delivery of this Assignment, there has been no anticipation of prepayment of any
rents by any of the tenants occupying the Property under the leases more than one month in
advance (other than those collected and held as a security deposit); and that to Assignor's
knowledge the Ieases (if any) are valid and enforceable and no default exists thereunder; except
as expressly disclosed in writing to Assignee, that other than the other liens, no prior assignment
has been made of the leases or of any rents from the Property; that Assignor shall perform all
obligations and duties of Lessor under the leases and will promptly notify Assignee of any
default pertaining to rent and income limits claimed by any party to said leases. Assignor
further covenants and agrees that Assignor shall have no right, power or authority to materially
alter, modify or amend the terms or conditions of any of the HOME assisted leases in any
particular whatsoever without first obtaining the consent in writing of Assignee to such
alteration, modification or amendment, which approval shall not be unreasonably withheld,
conditioned or delayed, and that Assignor shall not terminate any of the HOME assisted leases or
take any action to forfeit same without the prior written approval of Assignee, which approval
shall not be unreasonably withheld, conditioned or delayed.
Nothing herein contained shall be construed as making Assignee a mortgagee in
possession, nor shall said Assignee be liable for latches or for failure to collect the rents. It is
understood, however, that Assignee is to account for such sums as are actually collected pursuant
to this Assignment prior to any foreclosure under the Loan Documents. Furthermore, it is
covenanted and agreed that Assignee shall not be obligated to perform or discharge, nor does it
hereby undertake to perform or discharge, any obligation, duty or liability under the leases by
reason of this Assignment.
Assignor covenants and agrees with Assignee that no tenant need determi whether or
not a default, beyond applicable notice and cure period, has occurred to make this Assignment
operative, but instead, each tenant shall pay over the rents to Assignee upon notice from it to do
so and upon so doing shall be relieved from Iiability therefor to Assignor in all respects.
It is covenanted and agreed that neither the existence of this Assignment, nor the exercise
by Assignee of its privilege to collect rents, shall be construed as a waiver by Assignee of the
right to enforce payment of the Note in strict accordance with its terms and provisions and those
of the Loan Documents, and the collection of rents hereunder shall not constitute waiver of any
default which may exist under the terms of the Note or Loan Documents and the Note may be
accelerated in accordance with its terms and those of the Loan Documents, notwithstanding such
collection.
This Assignment is given as additional security for the performance of each and all of the
obligations and covenants of the Note and Loan Documents, together with any renewal,
extension or modification thereof.
The covenants and agreements herein contained shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties hereto. Whenever used, the
singular number shall include the plural, the plural the singular, and the use of any gender shall
be applicable to both genders.
THIS ASSIGNMENT IS TO BE GOVERNED, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF TEXAS. IF ANY PROVISION OF THIS
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ASSIGNMENT SHALL BE DETERMINED TO BE ILLEGAL OR UNENFORCEABLE, ALL
OTHER TERMS AND PROVISIONS HEREOF SHALL NEVERTHELESS REMAIN
EFFECTIVE AND SHALL BE ENFORCED TO THE FULLEST EXTENT PERMITTED BY
LAW.
EXECUTED to be effective as of the date and year first written above.
ASSIGNOR:
COSTA TARRAGONA II, LTD., a Texas limited
partnership
By: CCHFC Costa Tarragona II, LLC, a Texas
limited liability company, its general
partner
By: Corpus Christi Hausin - ce Corp.,
a Texas co " nd ; its s me r
By:
Ron Id son, General Manager
(ACKNOWLEDGMENT) ..�C•• - Q t. ..�...... {fit! (FIUitIt ►
STATE OF TEXAS § SY NOIL
COUNTY OF NUECES §
SECRETARY
This instrument was acknowledged before me on this lo day of Wt v)-- 2011
by Ronald L. Olson, the General Manager of the Corpus Christi Housing Finance Corporation, a
Texas housing finance corporation, the sole member of CCHFC Costa Tarragona II, LLC, a
Texas limited liability company, acting as the general partner of Costa Tarragona II, Ltd., a
Texas limited partnership, on behalf of the partnership.
y E
coo m QUEZ
M issk)n
is y Comission Expires ._
July 05, 2014 NOTARY PUBLIC, STA k TEXAS
AFTER RECORDING RETURN TO:
Corpus Christi Community Improvement Corporation
Attn: General Manager
P. 0. Box 9277
Corpus Christi, TX 78469 -9277
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EXHIBIT A
PROPERTY DESCRIPTION
For a 6.174 acre tract located in Nueces County, Texas, being 'a portion of- Lot '3A, Amending Plat of West
Park Addition Lots 3A and 3B, a Subdivision of record in Volume 67, Page 494 of the Map Records of Nueces
County, Texas; Said 6.174 acre tract being more particularly described by metes,and..boands as.follows with
all bearings being referenced to the Easterly line of said Lot 3, Being S 04 0 05'20" `W;
Commencing at a found 518 -inch iron rod at the Southerly Right -of Way 1101" of North Padre Island brive -
S.H. 358 (variable R.O.W.), for the Northeast corner of said Lot 3B, and the Northwest corner of Lot,l, West
Park Addition Subdivision of Record in Volume 47, Page 25 of the Map Records of Nueces County, Texas;
Thence, N 88 0 12 1 41" W, 230.81 feet, along the Southerly Right -of -Way line of North Padre Island Drive -
S.H. 358 (variable R.O.W.), to a found TXDOT Monument, for corner;
Thence, S 75 0 43 1 45" W, 167.98 feet, to a found TXDOT Monument, on the Southerly Right -of -Way line of
North Padre Island Drive - S.H. 358 (variable R.O.W.), For the Point of Beginning of a non - tangent curve to
the left and the Point of Beginning hereof;
Thence, Southeasterly, along the common line of said Lot 3A; Lot 3B, and the arc of a non - tangent curve to
the left having a radius of 2200.00 feet, a central angle of 32 °46'07 ", an arc length of 1258.22 feet and a chord
bearing: S 37 0 07 1 57" E, a distance of 1241.15 feet, to a set 112 -inch iron rod with BPI cap located in the
southerly line of said Lot 3B, being a point in the irregular Northerly line of Lot 2 or West Park Addition
Lots 2 and 3, a Subdivision of record in Volume 65, Pages 11 -12 of the Map Records of Nueces County, Texas
for the Southeast corner of the herein described tract;
Thence, S 88 11 25 1 13" W, 478.14 feet, along a portion of the-common boundary line of said Lot 3A and said Lot
2, to a set 112 -inch iron rod with BPI cap, for the Southwest corner of the herein described tract;
Thence, continuing along the common line of said Lot 2, and Lot 3A the following courses:
N 20 0 28'58" W, 303.75 feet, to a set 112 -inch iron rod with BPI cap for corner;
N 34 0 53'28" W, 151.74 feet, to a set 112 -inch iron rod with BPI cap for corner;
N 31 0 38'26" E, 47.83 feet, to a set 112 -inch iron rod with BPI cap for corner;
N 20 °28'58" W, 12.67 feet, to a set 112 -inch iron rod with BPI cap for corner;
N 58 °21'34" W, 70.00 feet, to a set 112 -inch iron rod with BPI cap for corner;
N 31 °38'26" E, 27.21 feet, to a set 112 -inch iron rod with BPI cap for corner;
N 55 0 43'57" W, 170.07 feet, to a set 112 -inch iron rod with BPI cap for corner;
N 48 0 37'13" E, 66.05 feet, to a set mag nail for corner;
N 44 0 18'22" W, 296.99 feet, to a found 518 -inch iron rod on the Southeast right of way line of North Padre
Island Drive (variable R.O.W.), for the Northwest corner of said Lot 3A;
Thence, along the Southeast right of way line of North Padre Island Drive (variable R.O.W.), the following
courses:
• 52 °30'09" E, 54.97 feet, to a found TXDOT monument, for an angle corner of the herein described tract;
• 60 ° 52'19" E, 93.63 feet, to a found TXDOT monument, for an angle corner of the herein described tract;
• 67 °12'55" E, 129.63 feet, to a found TXDOT monument, to the Point of Beginning, containing 6.189 acres
(269,575 square feet) of land, more or less.
SAVE AND EXCEPT that certain called 0.006 acre and 0.009 acre tract as conveyed to Corpus Christi
Housing Finance Corporation, by Special Warranty Deed dated December 13, 2007 and recorded in
Document No. 2007061698 of the Nueces County Records, leaving a net acreage for said Lot 3 of 6.174 acres.
5
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DIANA Ta BARRERA
COU14TY CLERK
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time stamped herein n`i fey and was duly RECORDED
in the Oe i_iekl. Public Rp -cJrds o7
flueces ( :irJuntv'9 Texas
Diana T. Bvirrera
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