EXHIBIT 10.4
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RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
XXXXXX X. XXXXXX, ESQ.
XXXXXX XXXXXXX XXXXXXXXX & XXXX, PLLC
XXX XXXX XXXXXX XXXXXX
XXXXXXX-XXXXX, XX 00000
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ASSIGNMENT OF LEASES
DEFINED TERMS
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LOAN: A first mortgage loan in an aggregate amount of $90,000,000.00
EXECUTION DATE: December 30, 2003 consisting of (i) a $74,000,000.00 Loan (" Metropolitan Loan A") from
Metropolitan Life Insurance Company to Assignor, (ii) a $6,000,000.00 Loan
from MetLife Bank, N.A. to Assignor ("Bank Loan A"; Metropolitan Loan A
and Bank Loan A are sometimes collectively referred to herein as "Loan
A"), (iii) a $9,000,000.00 Loan ("Metropolitan Loan B") from Metropolitan
Life Insurance Company to Assignor, and (iv) a $1,000,000.00 Loan from
MetLife Bank, N.A. to Assignor ("Bank Loan B"; Metropolitan Loan B and
Bank Loan B are sometimes collectively referred to herein as "Loan B").
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ASSIGNOR: Atlantic Center Plaza, LLC, a Georgia limited liability company, whose address is c/o Pope & Land Enterprises,
Inc., 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000.
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ASSIGNEE:
Metropolitan Life Insurance Company, c/o Metropolitan Life Insurance Company
a New York corporation, 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
and MetLife Bank, N.A., Xxxxxxxxxx, Xxxxxxx 00000
a national banking association And Attention: Vice-President or
c/o 00 Xxxx Xxxxxx Associate General Counsel
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Senior Vice-President Real Estate Investments
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NOTE OR NOTES: (i) The promissory note dated as of the Execution Date made by
Assignor to the order of Metropolitan Life Insurance Company in the principal
amount of $74,000,000.00 ("Metropolitan Note A"), (ii) the promissory note dated
as of the Execution Date made by Assignor to the order of MetLife Bank, N.A. in
the principal amount of $6,000,000.00 ("Bank Note A"; the Metropolitan Note A
and the Bank Note A are sometimes collectively referred to herein as "Note A"),
(iii) the promissory note dated as of the Execution Date made by Assignor to the
order of Metropolitan Life Insurance Company in the principal amount of
$9,000,000.00 (" Metropolitan Note B"), and (iv) the promissory note dated as of
the Execution Date made by Assignor to the order of MetLife Bank, N.A. in the
principal amount of $1,000,000.00 ("Bank Note B"; the Metropolitan Note B and
the Bank Note B are sometimes collectively referred to herein as "Note B") . The
Notes have a Maturity Date of December 1, 2006.
DEED TO SECURE DEBT: A Deed To Secure Debt, Security Agreement and Fixture
Filing dated as of the Execution Date, executed by Assignor to Assignee securing
repayment of the Note. The Deed To Secure Debt will be recorded in the records
of the County in which the Property is located.
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THIS ASSIGNMENT OF LEASES (this "Agreement") is entered into by Assignor as of
the Execution Date in favor of Assignee and affects the Property as hereinafter
described. Certain terms used in this Agreement are defined in the Defined Terms
on page 1.
R E C I T A L S
A. Assignee has loaned or will loan to Assignor the Loan which is
evidenced by the Note and includes all extensions, renewals, modifications and
amendments. The payment of the Note is secured by the Deed To Secure Debt which
encumbers Assignor's interest in the real property described in EXHIBIT A
attached to this Agreement (the "Land") and Assignor's interest in the
improvements and personal property and equipment situated on the Land (the
"Improvements") (collectively, the "Property"); and
B. Assignor desires to absolutely, presently and unconditionally assign
to Assignee all of its right, title and interest in and to (i) all leases which
now exist that are described in EXHIBIT B attached to this Agreement, (ii) all
leases entered into after the date of this Agreement, (iii) all lease
extensions, modifications, amendments, expansions and renewals of the leases
described in (i) and (ii), and (iv) all guarantees of lessees' obligations and
extensions, modifications, amendments and renewals of any guarantees of any of
the leases. The documents described in this Recital B are collectively referred
to as the "Leases".
NOW THEREFORE, in consideration of the Recitals and for good and valuable
consideration, Assignor agrees with Assignee and its successors and assigns as
follows:
1. PAYMENT OF NOTE. Assignor desires to secure (a) the timely payment
of the principal of and interest on the Note and all other indebtedness secured
by the Deed To Secure Debt; and (b) the full compliance with the terms,
conditions, covenants and agreements contained in the Note, the Deed To Secure
Debt and the other documents executed by Assignor in connection with the Loan.
2. PRESENT AND ABSOLUTE ASSIGNMENT OF LEASES. Assignor absolutely,
presently and unconditionally grants, assigns and transfers to Assignee all of
Assignor's right, title and interest in and to the Leases. This grant includes
without limitation: (a) all rent payable under the Leases; (b) all tenant
security deposits held by Assignor pursuant to the Leases; (c) all additional
rent payable under the Leases; (d) all proceeds of insurance payable to Assignor
under the Leases and all awards and payments on account of any taking or
condemnation; and (e) all claims, damages and other amounts payable to Assignor
in the event of a default under or termination of any of the Leases, including
without limitation all of Assignor's claims to the payment of damages arising
from any rejection by a tenant of any Lease under the Bankruptcy Code as amended
from time to time. All of the items referred to in this Section 2 are
collectively referred to in this Agreement as the "Income".
3. NO CANCELLATION OR MODIFICATION OF LEASES. Assignor covenants and
agrees that, without the prior written consent of Assignee, except as otherwise
provided in the Deed To Secure Debt, it will not (a) cancel or terminate any
Lease or accept a surrender of any Lease (except in the event of a default); (b)
reduce the rent or additional rent or accept payment of any installment of rent
under any Lease more than one month in advance of its due date; (c) modify or
amend any Lease in any material way; or (d) consent to an assignment of the
tenant's interest or to a subletting of any Lease unless the tenant remains
liable under the Lease following the assignment or subletting.
If any of these acts described in this Section 3 are done without the consent of
Assignee, at the option of Assignee, they shall be of no force or effect and
shall constitute a breach of the terms of this Agreement and of the Deed To
Secure Debt.
4. SPECIFIC COVENANTS OF ASSIGNOR. Assignor covenants and agrees:
(a) To perform fully all material obligations, duties, and
agreements of landlord under the Leases in a commercially reasonable manner.
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(b) At Assignor's sole cost and expense, in a commercially
reasonable manner, to appear in and defend any action or proceeding arising
under the Leases or which is connected with the obligations, duties or
liabilities of landlord, tenant or any guarantor and to pay all costs and
expenses of Assignee, including reasonable attorneys' fees, in any action or
proceeding in which Assignee may appear.
(c) If Assignor fails to make any payment or to do any acts
required by this Agreement, then Assignee may in its sole discretion, upon prior
written notice to Assignor and the expiration of any cure periods under the Deed
To Secure Debt, perform Assignor's obligations under the Leases as Assignee may
deem reasonably necessary, at Assignor's cost and expense. These acts may
include without limitation appearing in and defending any proceeding connected
with the Leases, including without limitation any proceedings of any tenants
under the Bankruptcy Code. No action by Assignee shall release Assignor from its
obligation under this Agreement. Assignor irrevocably appoints Assignee its true
and lawful attorney to exercise it rights under this Agreement, which
appointment is coupled with an interest.
(d) To pay immediately upon demand all sums expended by
Assignee under this Agreement, together with interest at the Default Rate (as
defined in the Note). These expenditures shall be secured by the Deed To Secure
Debt.
(e) If a petition under the Bankruptcy Code shall be filed by
or against Assignor and Assignor, as landlord, shall determine to reject any
lease pursuant to Section 365(a), then Assignee shall have the right, but not
the obligation, to demand that Assignor assume and assign the lease to Assignee
and Assignor shall provide adequate assurance of future performance under the
lease.
(f) Assignee's rights under this Agreement may be exercised
either independently of or concurrently with any other right in this Agreement,
the Deed To Secure Debt or in any other document securing the Note. No action
taken by Assignee under this Agreement shall cure or waive any default nor
affect any notice under the Deed To Secure Debt.
5. LEASING OF PROPERTY. Assignor covenants and agrees, upon demand, to
confirm in writing the assignment to Assignee of all subsequent Leases of the
Property upon the terms set forth in this Agreement. Notwithstanding the
preceding sentence, the terms and provisions of this Agreement shall apply
automatically to any Leases entered into after the Execution Date.
6. REPRESENTATIONS AND WARRANTIES. Assignor makes the following
representations and warranties in connection with the Leases: (a) Assignor has
not executed any prior assignment of its right, title and interest in the
Leases, or of the Income; (b) Assignor has not done any act which might prevent
Assignee from exercising its rights under this Agreement; (c) except only for
security deposits, rent and additional rent for the current month, Assignor has
not accepted under any of the Leases any payment of advance rent or additional
rent in an amount that is more than one month's rent and additional rent; (d)
there is no material default now existing under any of the Leases and to
Assignor's best knowledge, no event has occurred and is continuing which would
constitute an event of default but for the requirement that notice be given in
accordance with the terms of the Lease, except as set forth on the rent roll
delivered to Lender; (e) Assignor has delivered to Assignee true and correct
copies of all of the Leases described on Exhibit B which is attached to this
Agreement; and (f) all Leases are in full force and effect without any oral or
written modification except as set forth in writing in the copies delivered to
Assignee.
7. LICENSE TO COLLECT MONIES UNTIL DEFAULT BY ASSIGNOR. So long as no
Event of Default (as defined in the Deed To Secure Debt) exists and so long as
there is no default by Assignor under this Agreement or under any of the Leases
(all of the foregoing are collectively referred to as, a "Default"), Assignor
shall have a license to receive and use all Income. This license shall be
terminable at the sole option of Assignee, without regard to the adequacy of its
security under this Agreement or under the Deed To Secure Debt and without
notice to Assignor, if there is a Default.
8. ENTRY BY ASSIGNEE AND RECEIVER. Upon an Event of Default, Assignee
is authorized either in person or by agent, with or without bringing any action
or proceeding or having a receiver appointed by a court, (a) to enter upon, take
possession of, manage and operate the Property and collect the Income, and (b)
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to make, enforce, modify, and accept the surrender of the Leases. Assignee is
authorized to take these actions either with or without taking possession of the
Property. In connection with this entry, Assignor authorizes Assignee to perform
all acts necessary for the operation and maintenance of the Property. Assignee
may xxx for or otherwise collect all Income, including those past due and
unpaid, and apply the Income, less costs and expenses of operation and
collection, including reasonable attorneys' fees actually incurred, to the
indebtedness secured by the Deed To Secure Debt in such order as Assignee may
determine. Assignee's exercise of its rights under this Section shall not be
deemed to cure or waive any Event of Default.
9. INDEMNIFICATION. Assignor shall indemnify Assignee against and hold
it harmless from any and all liability, claims, loss or damage which it may
incur under the Leases or under this Agreement, except to the extent arising
from Lender's gross negligence or willful misconduct.
10. MORTGAGEE IN POSSESSION. To the fullest extent permitted by law,
neither the assignment of Income to Assignee nor the exercise by Assignee of any
of its rights or remedies under this Agreement, including without limitation,
the entering into possession or the appointment of a receiver shall be deemed to
make Assignee a "mortgagee-in-possession" or otherwise liable with respect to
the Property. Although Assignee has the right to do so, it shall not be
obligated to perform any obligation under the Leases by reason of this
Agreement. To the fullest extent permitted by law, neither this Agreement nor
any action or inaction on the part of Assignee shall constitute an assumption on
the part of Assignee of any obligation or liability under any of the Leases.
11. SATISFACTION AND TERMINATION. Upon the payment in full of the Loan,
as evidenced by the recording of a Satisfaction of the Deed To Secure Debt, this
Agreement shall be cancelled.
12. TENANTS ENTITLED TO RELY ON ASSIGNEE'S REQUESTS. Assignor
irrevocably authorizes and directs the tenants and their successors, upon
receipt of any written request of Assignee stating that an Event of Default
exists, to pay to Assignee the Income due and to become due under the Leases.
Assignor agrees that the tenants shall have the right to rely upon any such
statement without any obligation to inquire as to whether an Event of Default
actually exists and regardless of any claim of Assignor to the contrary.
Assignor agrees that it shall have no claim against the tenants for any Income
paid by the tenants to Assignee. Upon the curing of all Events of Default,
Assignee shall give written notice to the tenants to recommence paying the rents
to Assignor.
13. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
successors and assigns of Assignor and shall inure to the benefit of and be
enforceable by Assignee, its successors and assigns and any trustee appointed
for the benefit of the holder of the Note. If more than one person, corporation,
partnership or other entity shall execute this Agreement, then the obligations
of the parties executing the Agreement shall be joint and several.
14 NOTICES. All notices pursuant to this Agreement shall be given in
accordance with the Notice provision of the Deed To Secure Debt, which is
incorporated into this Agreement by this reference.
15. GOVERNING LAW. This Agreement shall be governed and construed by
the laws of the State in which the Property is located.
16. MISCELLANEOUS. This Agreement may be modified, amended, waived, or
terminated only by an instrument in writing signed by the party against which
enforcement of such modification, amendment, waiver, or termination is sought.
No failure or delay in exercising any of these rights shall constitute a waiver
of any Default. Assignor, at its expense, will execute all documents and take
all action that Assignee from time to time may reasonably request to preserve
and protect the rights provided under this Agreement. The headings in this
Agreement are for convenience of reference only and shall not expand, limit or
otherwise affect the meanings of the provisions. This Agreement may be executed
in several counterparts, each of which shall be an original, but all of which
shall constitute one document.
17. LIABILITY OF ASSIGNOR. Liability under this Agreement is limited in
the same manner and to the same extent as liability is limited under Section 11
of the Note and Article IX of the Deed To Secure Debt.
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IN WITNESS WHEREOF, this Assignment of Leases is executed under seal as
of the Execution Date.
ATLANTIC CENTER PLAZA, LLC,
a Georgia limited liability company
By: P&L ACP, LLC,
a Georgia limited liability company,
its Manager
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Manager
Signed, sealed and delivered in
the presence of:
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Unofficial Witness
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Notary Public
(Notarial Seal)
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EXHIBIT A
LEGAL DESCRIPTION
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EXHIBIT B
DESCRIPTION OF LEASES
The existing Leases are set forth in that certain Certificate of Rent Roll and
Lease Status of even date executed by Assignor in favor of Assignee.
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