HomeMy WebLinkAboutagenda item 2015 0716 rdc 06b3Department of
Community Investment
Memorandum
July 16, 2015
TO:
FROM:
SUBJECT:
South Bend Redevelopment Commission
David Relos, Economic Resources ~·
La Salle Apartments LLC Collateral i\ssignments
On November 24, 2014, the Commission and Real America entered in to a Development
Agreement for the redevelopment of the Hotel La Salle. La Salle Apartments LLC is. a
wholly owned subsidiary of the owner of Real America.
On March 26, 2015, the Commission approved Resolution No. 3282, approving various
agreements referenced within the Development Agreement. Several of these
agreements were anticipated to be assigned to Real America's lender upon financing,
and contained language to allow their assignment.
The three Collateral Assignment Agreements are to assign to Lake City Bank the
Construction Management Agreement, the Development Agreement, and the Parking
Lease, and would only be assigned if there was a default under the original Agreements.
Staff requests approval of the Collateral Assignment of Construction Management
Agreement, Collateral Assignment of Development Agreement, and Collateral
Assignment of Lease.
227 W. JEFFERSON BLVD. SOUTH BEND, IN 46601 I P: 574-235-9371 I FAX: 574-235-9021 I SOUTHBENDIN.GOV
ITEM: 6.B.(3)
COLLATERAL ASSIGNMENT OF
CONSTRUCTION MANAGEMENT AGREEMENT
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE
LASALLE APARTMENTS, LLC, an Indiana limited liability company ("Borrower"),
REALAMERICA DEVELOPI\'IENT, LLC, an Indiana limited liability company
("RealAmerica Development"), REALAMERICA CONSTRUCTION, LLC, an Indiana
limited liability company ("RealAmerica Construction"), and REALAI\'IERICA FUNDING
CORPORATION, an Indiana corporation ("RealAmerica Funding") (collectively, "Assignor"),
as additional security for Borrower's obligations to LAKE CITY BANK, a state-chartered
financial institution ("Lender"), under a Construction Loan Agreement of even date herewith
(the "Loan Agreement") between Borrower and Lender, hereby assign to Lender all of
Assignor's right, title and interest, but not its obligations, in, under and to that certain
Construction Management Agreement between the South Bend Redevelopment Commission,
governing body of the Department of Redevelopment of the City of South Bend, Indiana, and the
South Bend Board of Public Works (collectively, the "City"), and Assignor, dated April 21, 2015
(the "Agreement"), upon the following terms and conditions:
1. Capitalized terms used herein but not otherwise defined herein shall have the
same meanings assigned to such terms in the Loan Agreement.
2. Assignor represents and warrants to Lender that: (a) the copy of the Agreement
attached hereto as Exhibit A is a true and complete copy thereof; (b) Assignor's interest therein
is not subject to any claim, setoff or encumbrance; (c) the Agreement is assignable; (d) there
have been no prior assignments of the Agreement; (e) the Agreement constitutes the valid and
binding obligations of the parties thereto, and is enforceable in accordance with its terms; (f) to
the best of Assignor's knowledge, neither Assignor nor the City is in default under the terms of
the Agreement; and (g) to the best of Assignor's knowledge, all covenants, conditions and
agreements have been performed as required by the Agreement, except those which are not due
to be performed until after the date of this Assignment.
3. Neither this Assignment nor any action by Lender shall constitute an assumption
by Lender of any obligations under the Agreement to the City (or any of the City's departments,
divisions or commissions), and Assignor shall continue to be liable for all obligations of
Assignor thereunder. Assignor hereby agrees to punctually perform and observe all of the terms,
conditions and requirements of the Agreement to be performed or observed by Assignor.
Assignor agrees to indemnify and hold Lender harmless against and from any claim, loss, cost,
liability, or expense (including, without limitation, reasonable attorney fees, court costs and
investigation expenses), of. any kind whatsoever, whether based in contract, tort or equity,
resulting from any failure of Assignor to perform its obligations under the Agreement.
4. Subject to Section 7 hereof, Lender shall have the right (but not the obligation) at
any time to take in its name or in the name of Assignor, or any of them, such action as Lender
may at any time determine to be necessary or advisable to cure any default under the Agreement
or to protect the rights of Assignor or Lender thereunder. Lender shall incur no liability if any
action so ta~en by it, or on its behalf, shall prove to b~ inadequate or invalid, and Assignor
agrees to indemnify and hold Lender harmless against and from any claim, loss, cost, liability or
expense (including, without limitation, reasonable attorney fees, court costs and investigation
expenses), of any kind whatsoever, whether based in contract, tort or equity, incurred in
connection with any such action, other than the gross negligence or intentional misconduct of
Lender. For the purpose of completing the Project, Lender may reassign its right, title and
interest in the Agreement to any persons or entities in Lender's discretion upon notice to and
written consent of the City.
5. Assignor hereby irrevocably constitutes and appoints Lender (and any of its
officers) as Assignor's true and lawful agent and attorney-in-fact (with full powers of
substitution) to, after a default under the Loan Agreement, the Note, or any other Loan
Document, demand, receive and enforce Assignor's rights with respect to the Agreement, to give
appropriate receipts, releases and satisfactions for and on behalf of Assignor to do any and all
acts in the name, place and stead of Assignor or in Lender's name, with the same force and effect
as Assignor could do if this Assignment had not been made. The power of attorney granted
herein is deemed to be a power coupled with an interest and is therefore irrevocable.
6. Before a default under the Loan Agreement, Assignor shall have the right to
exercise its rights under the Agreement; provided, however, that Assignor shall not cancel or
amend the Agreement or do or permit to be done any act which would impair the security created
by this Assignment without the prior written consent of Lender. Lender shall endeavor to review
promptly all requested changes in the Agreement submitted to it; provided, however, that Lender
shall have no obligation or liability to the City with regard to its review of such changes or its
refusal to approve such changes.
7. This Assignment is for security purposes only. Therefore, Lender shall have no
right under this Assignment to enforce the provisions of the Agreement until Assignor shall be in
default under the Loan Agreement or any other instrument, document or agreement related to
either the indebtedness evidenced thereby or the Mortgaged Property (as herein defined) beyond
any applicable notice and cure periods. Upon the occurrence of any such default, Lender may,
without affecting any of its rights or remedies against Assignor under the Loan Agreement or
any other instrument, document or agreement related thereto, exercise its rights under this
Assignment as Assignor's true and lawful agent and attorney-in-fact or in any other manner
permitted by law, and in addition, Lender shall have and possess, without limitation, any and all
of the rights of a secured party under Article 9 of the Uniform Commercial Code or otherwise
provided by law. Upon satisfaction or other termination of the Assignor's obligations under the
Loan Agreement, this Assignment will terminate, and Assignor will immediately provide written
notice of the termination of this Assignment to the Commission.
8. This Assignment shall be binding upon Assignor, and Assignor's heirs, executors,
administrators, legal representatives, successors and assigns, and shall inure to the benefit of
Lender and its successors and assigns, including any purchaser upon foreclosure of the
assignments, liens and security interests created by the Mortgage, as defined in the Loan
Agreement, and all presently-existing or future modifications thereof, securing the loans
contemplated by the Loan Agreement, upon the real property described in the Mortgage (the
"Mortgaged Property"), or any part thereof, any grantee of the Mortgaged Property (or any part
thereof) under a conveyance in lieu of foreclosure, any receiver in possession of the Mortgaged
2
Property (or any part thereof), and any corporation formed by or on behalf of Lender which
assumes Lender's rights and obligations under the Loan Agreement.
9. This Assignment shall be governed by and construed under the laws of the State
of Indiana, without giving effect to its choice-of-law provisions.
10. All exhibits attached hereto are by this reference incorporated fully herein. The
term "this Assignment" shall be considered to include all such exhibits.
ASSIGNOR HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF TIDS
ASSIGNMENT AND AGREES TO ITS TERMS. TIDS ASSIGNMENT IS DATED AND
EXECUTED AS OF THE 2ND DAY OF JULY, 2015.
"ASSIGNOR" THE LASALLE APARTMENTS, LLC
By: __ _,, __ ~----~~~~~~
R a . ·rewsbury Weybright, President
Executive Investments, LLC
ONSTRUCTION, LLC
REALAMERICA FUNDING CORPORATION
By:_-,...r---711~~--------
Ron
3
ACKNOWLEDGED AS OF THE_ DAY OF JULY, 2015 BY:
"CITY" SOUTH BEND REDEVELOPMENT
COMMISSION, GOVERNING BODY OF THE
DEPARTMENT OF REDEVELOPMENT OF
THE CITY OF SOUTH BEND, INDIANA
Its: ______________ _
By: ______________ _
Its: ______________ _
SOUTH BEND BOARD OF PUBLIC WORKS
Its: ______________ _
By: ______________ _
Its:---------------
4
STATE OF INDIANA )
) SS: COUNTYOFiA!\tittN )
On this 2nd day of July, 2015, before me, the undersigned Notary Public, personally appeared
Ronda Shrewsbury Weybright, President of Executive Investments, LLC, known to me to be the
Managing Member of The LaSalle Apartments, LLC, and acknowledged the execution of the
Collateral Assignment of Construction Management Agreement to be the free and voluntary act
and deed of the limited liability company, by authority of statute, its Operating Agreement, or by
resolution of i~s members, for the uses and purposes therein mentioned, and on oath stated that
he/she is authorized to execute this Collateral Assignment of Construction Management
Agreement and in fact executed the Collateral Assignment of Construction Management
Agreement on behalf of the limited liability company.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal.
My Commission Expires:
Jut6,UJJ.i>
STATE OF INDIANA ) /Jt_ J) SS·
COUNTY OF nA~~ ) ·
,A4+-~~~~~~'----,..--.-'' Notary Public
+N~~"--P9--i,_ County
On this 2nd day of July, 2015, before me, the undersigned Notary Public, personally appeared
Ronda Shrewsbury Weybright, President ofRealAmerica Development, LLC, and acknowledged
the execution of the Collateral Assignment of Construction Management Agreement to be the
free and voluntary act and deed of the limited liability company, by authority of statute, its
Operating Agreement, or by resolution of its members, for the uses and purposes therein
mentioned, and on oath stated that he/she is authorized to execute this Collateral Assignment of
Construction Management Agreement and in fact executed the Collateral Assignment of
Construction Management Agreement on behalf of the limited liability company.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal.
5
STATE OF INDIANA )
) SS:
COUNTYOF;tzlNADN )
On this 2nd day of July, 2015, before me, the undersigned Notary Public, personally appeared
Ronda Shrewsbury Weybright, President ofRealAmerica Construction, LLC, and acknowledged
the execution of the Collateral Assignment of Construction Management Agreement to be the
free and voluntary act and deed of the limited liability company, by authority of statute, its
Operating Agreement, or by resolution of its members, for the uses and purposes therein
mentioned, and on oath stated that he/she is authorized to execute this Collateral Assignment of
Construction Management Agreement and in fact executed the Collateral Assignment of
Construction Management Agreement on behalf of the limited liability company.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal.
My Commission Expires: J ~;{ f}l 2071>
STATE OF INDIANA )
) SS:
COUNTY oFltAkJaJJ )
On this 2nd day of July, 2015, before me, the undersigned Notary Public, personally appeared
Ronda Shrewsbury Weybright, President of RealAmerica Funding Corporation, and
acknowledged the execution of the Collateral Assignment of Construction Management
Agreement to be the free and voluntary act and deed of the corporation, by authority of statute,
its Bylaws, or by resolution of its directors, for the uses and purposes therein mentioned, and on
oath stated that he/she is authorized to execute this Collateral Assignment of Construction
Management Agreement and in fact executed the Collateral Assignment of Construction
Management Agreement on behalf of the corporation.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal.
My Commission Expires:
r}yl~1.ff20 -6~{,tl.{A..Lr,~~'.i£1J'at..P~otary Public
-re.'.#ff.~~.....---" County
STA TE OF INDIANA )
) SS:
COUNTY OF )
On this __ day of July, 2015, before me, the undersigned Notary Public, personally appeared
---------and the and _____ _.
respectively, of the South Bend Redevelopment Commission, governing body of the Department
of Redevelopment of the City of South Bend, Indiana, and acknowledged the execution of the
Collateral Assignment of Construction Management Agreement to be the free and voluntary act
and deed of the Commission, by authority of statute, or by proper resolution, for the uses and
purposes therein mentioned, and on oath stated that he/she is authorized to execute this Collateral
Assignment of Constructfon Management Agreement and in fact executed the Collateral
Assignment of Construction Management Agreement on behalf of the Commission.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal.
My Commission Expires:
_________ _,Notary Public
A resident of ______ County
STATE OF INDIANA )
) SS:
COUNTY OF )
On this __ day of July, 2015, before me, the undersigned Notary Public, personally appeared
_________ and , the and _____ _,
respectively, of the South Bend Board of Public Works, and acknowledged the execution of the
Collateral Assignment of Construction Management Agreement to be the free and voluntary act
and deed of the Board, by authority of statute, or by proper resolution, for the uses and purposes
therein mentioned, and on oath stated that he/she is authorized to execute this Collateral
Assignment of Construction Management Agreement and in fact executed the Collateral
Assignment of Construction Management Agreement on behalf of the Board.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal.
My Commission Expires:
_________ _,Notary Public
A resident of ______ County
7
COLLATERAL ASSIGNMENT OF
DEVELOPMENT AGREEMENT
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE
LASALLE APARTMENTS, LLC, an Indiana limited liability company ("Borrower"),
REALAMERICA CONSTRUCTION, LLC, an Indiana limited liability company
("RealAm~rica Construction"), and REALAMERICA FUNDING CORPORATION, an
. Indiana corporation ("ReaIAmerica FundingB) (collectively, "Assignor"), as additional security
for Borrower's obligations to LAKE CITY BANK, a state-chartered financial institution
(''Lender"), under a-Construction Loan Agreement of even date herewith (the ''Loan
Agreement") between Borrower and Lender, hereby assign to Lender all of Assignor's right, title
and interest, but not its obligations, in, under and to that certain Development Agreement
between the South Bend Redevelopment Commission, governing body of the Department of
Redevelopment of the City of South Bend, Indiana (the ucommission"), and ReaIAmerica
Development, LLC ("RealAmerica Development"), dated November 24, 2014, as assigned by
RealAmerica Development to Borrower, RealAmerica Construction, and RealAmerica Funding
under that certain Assignment and Assumption Agreement dated March 24, 2015 (collectively,
the "Development Agreement"), upon the following terms and conditions:
1. Capitalized terms used herein but not otherwise defined herein shall have the
same meanings assigned to such terms in the Loan Agreement.
2. Assignor represents and warrants to Lender that: (a) the copy of the Development
Agreement attached hereto as Exhibit A is a true and complete copy thereof; (b) Assignor's
interest therein is not subject to any claim, setoff or encumbrance; (c) the Development
Agreement is assignable; ( d) there have been no prior assign~ents of the Development
Agreement; ( e) the Development Agreement constitutes the valid and binding obligations of the
parties there~o, and is enforceable in accordance with its terms; (f) to the best of Assignor's
knowledge, neither Assignor nor the Commis~ion is in default under the terms of the
Development Agreement; and (g) to the best of Assignor's knowledge, all covenants, conditions
and agreements have been performed as required by the Development Agreement, except those
which are not due to be performed until after the date of this Assignment.
3. Neither this Assignment nor any action by Lender shall constitute an assumption
by Lender of any obligations under the Development Agreement to the Commission (or any of
the Commission's departments, divisions or commissions), and Assignor shall continue to be
liable for all obligations of Assignor thereunder. Assignor hereby agrees to punctually perform
and observe all of the terms, conditions and requirements of the Development Agreement to be
performed or obs~rved by Assignor. Assignor agrees to indemnify and hold Lender harmless
against and from any claim, loss, cost, liability, or expense (including, without limitation,
reasonable attorney fees~ court costs and investigation expenses), of any kind whatsoever,
whether based in contract, tort or equity, resulting from any failure of Assignor to perform its
obligations under the Development Agreement.
4. Subject to Section 7 hereof, Lender shall have the right (but not the obligation) at
any time to take in its name or in the name of Assignor, or any of them, such action as Lender
may at any time determine to be necessary or advisable to cure any default under the
Development Agreement or to protect the rights of Assignor or Lender thereunder. Lender shall
incur no liability if any action so taken by it, or on its. behalf, shall prove to be inadequate or
invalid, and Assignor agrees to indemnify and hold Lender harmless against and from any claim,
loss, cost, liability or expense (including, without limitation, reasonable attorney fees, court costs
and investigation expenses), of any kind whatsoever, whether based in contract, tort· or equity,
incurred in connection with any such action, other than the gross negligence or intentional
misconduct of Lender. For the purpose of completing the Project, Lender may reassign its right,
title and interest in the Development Agreement to any persons or entities in Lender's discretion
upon notice to and written consent of the Commission.
5. Assignor hereby irrevocably constitutes and appoints Lender (and any of its
officers) as Assignor's true and lawful agent and attorney-inwfact (with full powers of
substitution) to, after a default under the Loan Agreement, the Note, or any other Loan
Document, demand, receive and enforce Assignor's rights with respect to the Development
Agreement, to give appropriate receipts, releases and satisfactions for and on behalf of Assignor
to do any and all acts in the name, place and stead of Assignor or in Lender's name, with the
same force and effect as Assignor could do if this Assignment had not been made. The power of
attorney granted herein is deemed to be a power coupled with an · interest and is therefore
irrevocable.
6. Before a default under the Loan Agreement, Assignor shall have the right to
exercise its rights under the Development Agreement; provided, however, that Assignor shall not
cancel or amend the Development Agreement or do or permit to be done any act which would
impair the security created by this Assignment without the prior written consent of Lender.
Lender shall endeavor to review promptly all requested changes in the Development Agreement
submitted to it; provided, however, that Lender shall have no obligation or liability to the
Commission with regard to its review of such changes or its refusal to approve such changes.
7. This Assignment is
for security purposes only. Therefore, Lender shall have no
right under this Assignment to enforce the provisions of the Development Agreement until
Assignor shall be in default under the Loan Agreement or any other instrument, document or
agreement related to either the indebtedness evidenced thereby or the Mortgaged Property (as
herein defined) beyond any applicable notice and cure periods. Upon the occurrence of any such
default, Lender may, without affecting any of its rights or remedies against Assignor under the
Loan Agreement or any other instrument, document or agreement related t!J.ereto, exercise its
rights under this Assignment as Assignor's true and lawful agent and attorney-in"fact or in any
other manner permitted by law, and in addition, Lender shall have and possess, without
limitation, any and all of the rights of a secured party under Article 9 of the Uniform Commercial
Code or otherwise provided by law. Upon satisfaction or other termination of the Assignor's
obligations under the Loan Agreement, this Assignment will terminate, and Assignor will
immediately provide written notice of the termination of this Assignment to the Commission.
8. This Assignment shall be binding upon Assignor, and Assignor's heirs, executors,
administrators, legal representatives, successors and assigns, and shall inure to the benefit of
Lender and its successors and assigns, including any purchaser upon foreclosure of the
assignments, liens and security interests created by the Mortgage, as defined in the Loan
2
Agreement, and all presently~existing or future modifications thereof, securing the loans
contemplated
by the Loan Agreement, upon the real property described in the Mortgage (the
"Mortgaged Property',), or any part thereof: any grantee of the Mortgaged Property (or any part
thereof) under a conveyance in lieu of foreclosure, any receiver in possession of the Mortgaged
Property (or any part thereof), and any
corporation formed by or on behalf of Lender which
assumes Lender's rights and obligations under the
Loan Agreement.
9. This Assignment shall be governed by and construed under the laws of the State
of Indiana, without giving effect to its choice-of-law provisions.
10. All exhibits attached hereto are by this reference incorporated fully herein. The
term "this Assignment" shall be considered to include all such exhibits.
ASSIGNOR HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS
ASSIGNMENT AND AGREES TO ITS TERMS. THIS ASSIGNMENT IS DATED AND
EXECUTED AS OF THE 2ND DAY OF JULY, 2015.
"ASSIGNOR" THE LASALLE APARTMENTS, LLC
By: EXECUTIVE INVESTMENTS, LLC
Managing Memb of The LaSalle Apartments, LLC
da hrewsbury Weybright, President
Executive Investments, LLC
CONSTRUCTION, LLC
3
ACKNOWLEDGED AS OF THE _DAY OF JULY, 2015 BY:
· "COMMISSION" SOUTH BEND REDEVELOPMENT
COMMISSION, GOVERNING BODY OF THE
DEPARTMENT OF REDEVELOPMENT OF
THE CITY OF SOUTH BEND, INDIANA
Its=----~--~----~~-
Its:~----~----~-~~-
4
STATE OF INDIANA )
) SS:
COUNTY OF ftAtltaw )
On this 2nd day of July, 2015, before me, the undersigned Notary Public, personally appeared
Ronda Shrewsbury Weybright, President of Executive Investments, LLC, known to me to be the
Managing Member of The LaSalle Apartments, LLC, and acknowledged the execution of the
Collateral Assignment of Development Agreement to be the free and voluntary act and deed of
the limited liability company, by authority of statute, its Operating Agreement, or by resolution
of its members, for the uses and purposes therein mentioned, and on oath stated that he/she is
· authorized to execute this Collateral Assignment of Development Agreement and in fact
executed the Collateral Assignment of Development Agreement on behalf of the limited liability
company.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal.
My Commission Expires:
I 1w~:mw v
-.....~~....,__,,~....pc-~~ ............. ..--Notary Public
~~~Hfl'-~-County
STATE OF INDIANA )
) SS:
COUNTYOFJU/ttt1IDJ )
On this 2nd day of July, 2015, before me, the undersigned Notary Public, persopally appeared
Ronda Shrewsbury Weybright, President ofRealAmerica Construction, LLC, and acknowledged
the execution of the Collateral Assignment of Development Agreement to be the free and
voluntary act and deed of the limited liability company, by authority of statute, its Operating
Agreement, or by resolution of its members, for the uses and purposes therein mentioned, and on
oath stated that he/she is authorized to execute this Collateral Assignment of Development
Agreement and in fact executed the Collateral Assignment of Development Agreement on behalf
of the limited liability company.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal.
My Commission Expires:
. I tM 't, 20')j)
5
STATE OF INDIANA )
) SS:
COUNTY OF MA~ )
On this 2nd day of July, 2015, before me, the undersigned Notary Public, personally appeared
Ronda Shrewsbury Weybright, President of RealAmerica Funding Corporation, and
acknowledged the execution of the Collateral Assignment of Development Agreement to be the
free and voluntary act and deed of the corporation, by authority of statute, its Bylaws, or by
resolution of its directors, for the uses and purposes therein mentioned, and on oath stated that
he/she is authorized to execute this Collateral Assignment of Development Agreement and in
fact executed the Collateral Assignment of Development Agreement on behalf of the
corporation.
IN WITNESS .WHEREOF, I have hereunto subscribed my name and affixed my official seal.
My Commission Expires:
-1:::::.oo"~'-bl'I,,,,__...........,.~.,.....,..~'-'-'' Notary Public
~>WfJUAth'A'Y"1-County
J{,d1l2D1D
STATE OF INDIANA )
) SS:
COUNTY OF ____ )
On this __ day of July, 2015, before me, the undersigned Notary Public, personally appeared
~------~
and , the and ,
respectively, of the South Bend Redevelopment Commission, governing body of the Department
of Redevelopment of the City of South ·Bend_, Indiana, and acknowledged the execution of the
Collateral Assignment of Development Agreement to be the free and voluntary act and deed of
the Commission, by authority of statute, or by proper resolution, for the uses and purposes
therein mentioned, and on ·oath stated that he/she is ·authorized to execute this Collateral
Assignment of Development Agreement and in fact executed the Collateral Assignment of
Development Agreement on behalf of the Commission.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal.
My Comi:nission Expires:
__________ ,, Nota~y Public
A resident of ______ County
6
COLLATERAL ASSIGNMENT OF LEASE
This Collateral Assignment of Lease (the "Assignment'') is hereby executed and granted
by THE LASALLE APARTMENTS, LLC~ an Indiana limited liability company ("Assignor"),
in favor of LAKE CITY BANK, a state-chartered financial institution ("Lender"), as of the 2nd
day of July, 2015.
RECITALS:
WHEREAS, Lender has agreed to extend credit and financial accommodations to
Assignor pursuant to, without limitation, a certain promissory note (the "Note") under that
certain Construction Loan Agreement, of even date herewith, as it may from time to time be
amended 01' otherwise modified or supplemented (the "Loan Agreement"); (capitalized 'terms
used in this Assignment without definition shall have the meanings ascribed to such terms in the
Loan Agreement) among Borrower, Assignor and certain Guarantors, as defined in the Loan
Agreement, which are parties and signatories thereto.
WHEREAS, Assignor, as Tenant, and the South Bend Redevelopment Commission,
governing body of the Department of Redevelopment of the City of South Bend, Indiana, as
Landlord ("Department of Redevelopment"), executed and entered into that certain Parking
Lease dated as of April 21, 2015 (the "Lease") pursuant to the terms and conditions of which the
Department of Redevelopment leases to Assignor and Assignor leases from the Department of
Redevelopment certain real estate and improvements located thereon (the "Premises"). A true
and accurate copy of the Lease is attached hereto as Exhibit "A."
WHEREAS, to induce Lender to extend credit to Assignor, ·Assignor agreed to execute
this Assignment in favor of Lender as additional security for the Note and the Obligations as
defined in the Loan Agreement.
NOW, THEREFORE, for valuable considerati9n, the receipt of which is hereby
acknowledged, the parties hereby agree to the following terms and conditions:
1. The parties hereto agree that each of the above set forth recital paragraphs is true,
accurate and correct and that such recital paragraphs are incorporated into this Assignment by
reference.
2. Assignor hereby assigns to Lender and Lender hereby accepts all of Assignor's
right, title and interest, but not its obligations, in, under and to the Lease, subject to the terms and
conditions set forth herein. Said assignment includes, but is not limited to, an assignment of a
future written agreement for parking spaces in the planned parking garage· (the "Future Parking
Lease"), as contemplated by Section 26 of the Lease.
3. Assignor represents and warrants to Lender that: (a) the copy of the Lease attached
hereto as Exhibit "A" is a true and complete copy thereof; (b) Assignor's interest in the Lease is
not subject to any claim, setoff or encumbrance; (c) the Lease is assignable by Assignor pursuant
to the terms and conditions of the Lease; ( d) there have been no prior assignments of the Lease;
and ( e) the Lease constitutes the valid and binding obligations of the parties thereto, and is
enforceable in accordance with its terms.
4. Upon any default under the Lease, Assignor shall promptly notify Lender, in
writing, that said default has occurred.
5. Neither this Assignment nor any action by Lender shall constitute an assumption by
Lender of any obligations under the Lease to the Department of Redevelopment, and Assignor
shall continue
to be liable for all of its obligations thereunder. Assignor hereby agrees to
punctually perform and observe all of the terms, conditions and requirements of the Lease to be
performed or observed by Assignor. Assignor agrees to indemnify and hold Lender harmless
against and from any loss, cost, liability, or expense (including, without limitation, reasonable
attorney fees,
court costs and investigation expenses) resulting from any failure of Assignor to
perform its obligations under the
Lease.
6. Lender shall have the right (but not the obligation) at any time to take in its name or
in the name of Assignor such action as Lender may at any time determine to be necessary or
advisable to cure any default under the Lease or to protect the rights of Assignor or Lender
thereunder. Lender shall incur no liability if any action so taken by it, or on its behalf, shall
prove to be inadequate or invalid, and Assignor agree to indemnify and hold Lender harmless
against and from any loss, cost, liability or expense (including, without limitation, reasonable
attorney fees, court costs and investigation expenses) incurred in connection with any such
action, other than the gross negligence or intentional misconduct of Lender. Lender may
reassign its right, title and interest in the Lease to any persons or entities in Lender's discretion
upon notice to Tenant and notice to and consent
of the Department of Redevelopment.
7. Assignor hereby irrevocably constitutes and appoints Lender (and any of its
officers) as Assignor's true and lawful agent and attorney-in-fact (with full powers of
substitution) to} after a default under the Loan Agreement, the Note, or any other Loan
Document, demand} receive and enforce Assignor's rights with respect to the Lease, to give
appropriate receipts, releases and satisfactions for and on .behalf of Assignor to do any and all
acts in the name, place and stead of Assignor or in Lender's name, with the same force and effect
as Assignor could do if this Assignment had not been made. The power of attorney granted
herein is deemed to be a power coupled with an interest and is therefore irrevocable.
8. Befo1·e a default under any agreement, instrument, or document between Assignor
and Lender, Assignor shall have the right to exercise its rights under the Lease; provided,
however, that Assignor shall not cancel or amend the Lease or do or permit to be done any act
which would impair the security created by this Assignment without the prior written consent of
Lender. Lender shall endeavor to review promptly all requested changes in the Lease submitted
to it; provided, however, that Lender shall have no obligation or liability to any party with regard
to its review of such changes or its refusal to approve such changes.
9. This Assignment is for security purposes only. Therefore, Lender shall have no
. right under this
Assignment to enforce the provisions of the Lease until Assignor shall fail to
perform any of its obligations owed to Lender or default under any agreement, instrument, or
document between Assignor and Lender, including, without limitation, the Loan Agreement, the
Note, or any other Loan Document. Upon the occurrence of any such default, Lender may,
without affecting any of its rights or remedies against Assignor, exercise its rights under this
Assignment as Assignor's true and lawful agent and attorneyHinHfact or in any other manner
permitted by law, and in addition, Lender shall have and possess, without limitation, any and all
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of the rights of a secured party under Article 9 of the Uniform Commercial Code or otherwise
provided by law. Upon satisfaction or other termination of the Assignor's obligations under the
Loan Agreement, this Assignment will terminate, and Assignor will immediately provide written
notice of the termination of this Assignment to the Depa11ment of Redevelopment.
10. Notwithstanding anything contained in the Lease to the contrary, Assignor and the
Department of Redevelopment hereby agree that: (a) Assignor and the Department of
Redevelopment shall not terminate the Lease unless the Department of Redevelopment notifies
Assignee of such termination and offers a new lease to Assignee pursuant to Section 18 .4 of the
Lease, except for a termination pursuant to Sections 24.4( c) and 25 of the Lease for which the
Department of Redevelopment need not give notice to Assignee or offer a new lease to Assignee;
(b) Assignor and the Department of Redevelopment shall not execute the Future Parking Lease
until Assignor has executed and delivered to Assignee a Collateral Assignment of Future Parking
Lease in form and substance reasonably satisfactory to Assignee; and (c) in the event the Lease
terminates pursuant to Section 24.4 of the Lease, the Department of Redevelopment will grant
utility easements in the Premises in favor of Assignor and its successors and assigns, to the
extent that utilities serving the ~~Project Property," as defined in the Lease, are actually located on
or in the Premises.
11. Neither this Assignment nor any action by Lender shall constitute a waiver or
release of any and all liens, of any nature, that Lender holds on any property of Assignor.
12. This Assignment shall be binding upon Assignor, and Assignor's successors and
assigns, and shall inure to the benefit of Lender and its successors and assigns.
13. This Assignment shall be
governed by and construed under the laws of the State of
Indiana, without giving effect to its choice-of-law provisions.
14. All exhibits attached hereto are by this reference incorporated fully herein. The
term "this Assignment" shall be considered to include all such exhibits.
Executed as of the 2nd day of July, 2015.
"ASSIGNOR" THE LASALLE APARTMENTS, LLC
By: EXECUTIVE INVESTMENTS, LLC
Managing Member of The LaSalle Apartments, LLC
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ACKNOWLEDGEMENT AND CONSENT
The undersigned, on behalf of the South Bend Redevelopment Commission, governing
body of the Department of Redevelopment ·of the City of Smith Bend, Indiana, does hereby
acknowledge and consent to this Collateral Assignment of Lease and the assignment made
thereunder by The LaSalle Apartments, LLC of its rights under that certain Parking Lease dated
April 21, 2015, to Lake City Bank, and, without limiting the generality of the foregoing, does
hereby specifically agree to the terms of Sections 2 and 10 of this Collateral Assignment of
Lease.
Acknowledged as of the~-day of July, 2015.
"LANDLORD" SOUTH BEND REDEVELOPMENT
COMMISSION, GOVERNING BODY OF THE
DEPARTMENT OF REDEVELOPMENT OF
THE CITY OF SOUTH BEND, INDIANA
Its: ____________ ~----
Its:. __ ~-------------~-
4
STATE OFINDIANA
COUNTY OF I/am; {to()
)
) SS:
)
On this 2nd day of July, 2015, before me, the undersigned Notary Public, personally appeared
Ronda Shrewsbury W eybright, President of Executive Investments, LLC, known to me to be the
Managing Member of The LaSalle Apartments, LLC, and acknowledged the execution of the
Collateral Assignment of Lease to be the free and voluntary act and deed of the limited liability
company,
by authority of statute, its Operating Agreement, or by resolution of its members, for
the uses and purposes therein mentioned, and on oath stated that he/she is authorized to execute
this Collateral Assignment of Lease and in fact executed the Collateral Assignment of Lease on
behalf of the limited liability company.
IN WITNESS WHEREOF, I have hereunto subscl'ibed my name and affixed my official seal.
.··,'•·
LISA J. McNA13S ":.. ( f ~-..JV}·. ,. . I I J-. . · ..
My Commission ,r~~d~nt of HamJltori ~Y~ 1~t()V~4Jt . //·:I~~ ··..... . .
Coo~10~00 Expires: Nov~ 4 201.. · N t P bl' · .. · .· ·· · · · ·
, g •• ~ , o ary u ic
A resident of County
STATE OF INDIANA )
) SS:
COUNTY OF )
On this __ day of July, 2015, before me, the undersigned Notary Public, personally appeared
~-~------
and the and ,
respectively, of the South Bend Redevelopment Commission, g~werning body of the Department
of Redevelopment of the City of South Bend, Indiana, and acknowledged the execution of the
Collateral Assignment of Lease to be the free and voluntary act and deed of the Commission, by
authority of statute, or by proper resolution> for the uses and purposes therein mentioned, and on
oath stated that he/she is authorized to execute this Collateral Assignment of Lease and in fact
executed the Collateral Assignment of Lease on behalf of the Commission.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal.
My Commission Expires:
__________ ,Notary Public
A resident of ______ County
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