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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 3 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 4 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 R Son Jacinto Gibe Sere em 802 No. Carancahua. Snit* ISM Corprs Chr6d.lexasISM of -009 lq�� NUMES O FEE: D ifs 11 Cm 17 7 9 E'mqes b — 05/24 /2011 11 w 14API Official €i'ecueds of NNE CES COUNTY DIANA Ta BARRERA COU14TY CLERK Fens $35.00 Ang Provision herein wilictl restricts the Sal.s�r Rental ar use at :Iii= descril;Fd REAL PROPERTY because a4' Racep Color, R 1Faxp k-i>»I.n�dicak�p Familial fltUSY of I'ICkt i unal Or i 9 I n is i nval i d and unenf orceable s kli:ir r' FEDERAL. L.1=Wl tiro ;S t:OU I Y O ICE F . '...s i hellebi +wek`;ifi�j that this instpument was FILED I kk k l ? lumbe s qUP -rice on the C oip and a% the 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 7 4 P4 If{rE k € r� 14 ? I f � li�i � .. ' �" ":fit' mean ''F J