EXHIBIT 10(d)
PREPARED BY AND
AFTER RECORDING RETURN TO:
Xxxxx X. Xxxxxx, Esq.
Xxxxxxx & Xxxx, LLP
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000-0000
ASSIGNMENT OF LEASES AND RENTS
------------------------------
(GEORGIA)
THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") is made and
entered into as of this 10th day of June, 2002, by and between XXXXX RAVINIA,
LLC, a Delaware limited liability company, having a mailing address of 000 Xxxxx
Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 ("Assignor"), and FLEET NATIONAL
BANK, a national banking association ("Fleet"), having a mailing address of 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attn: Structured Real Estate, as
Agent for itself and each other lender (collectively, the "Lenders") which is or
may hereafter become a party to that certain Revolving Credit Loan Agreement,
dated as of December 28, 2001, by and among Xxxxx Equity, Inc., a Florida
corporation ("Borrower"), Fleet, as Agent and Lenders, as amended by First
Amendment to Revolving Credit Loan Agreement dated as April 5, 2002 and by
Second Amendment to Revolving Credit Loan Agreement of even date herewith (as
the same may be further varied, amended, restated, renewed, consolidated,
extended or otherwise supplemented from time to time, the "Credit Agreement")
(Fleet, in its capacity as Agent, is hereinafter referred to as "Assignee").
W I T N E S S E T H:
THAT to secure the Secured Obligations as defined herein, Assignor
does hereby grant, transfer and assign to Assignee, its successors,
successors-in-title and assigns, all of Assignor's right, title and interest in,
to and under any and all leases, tenancies, agreements or licenses, written or
oral, now existing or hereafter entered into by Assignor as "landlord", "lessor"
or "licensor", for the use or occupancy of all or any portion of the property
(hereinafter referred to as the "Property") particularly described in Exhibit A
attached hereto and by this reference made a part hereof, including any and all
extensions, renewals and modifications thereof and guaranties
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of the performance or obligations of any tenants, lessees or licensees
thereunder (such leases, tenancies, agreements and licenses are hereinafter
referred to collectively as the "Leases," and such tenants, lessees and
licensees are hereinafter referred to collectively as "Tenants" or individually
as a "Tenant" as the context requires), which Leases include those certain
leases of the Property more particularly described on Schedule 6.20 of the
Credit Agreement, together with all of Assignor's right, title and interest in
and to all rents, issues and profits from the Leases and from the Property. This
Assignment constitutes a present and absolute assignment of leases and rents,
subject only to Assignor's rights under Paragraph 1.03(a) hereof.
TO HAVE AND TO HOLD unto Assignee, its successors and assigns
forever, subject to and upon the terms and conditions set forth herein.
This Assignment is made to secure the payment and performance of the
following described indebtedness and obligations (hereinafter collectively
referred to as the "Secured Obligations"):
(a) Guaranty of even date herewith executed and delivered by Assignor to
Agent and Lenders (hereinafter, together with any and all renewals,
replacements, modifications and extensions thereof, referred to as the
"Guaranty") guaranteeing the debt evidenced by (i) those certain Revolving
Credit Notes made by Borrower in the aggregate principal amount of One Hundred
Twenty-Five Million and No/100 Dollars ($125,000,000), and that certain
Swingline Note made by Borrower in the principal amount of Two Million Five
Hundred Thousand and No/100 Dollars ($2,500,000), each of which has been issued
pursuant to the Credit Agreement and each of which is due and payable in full on
or before December 27, 2004 and (ii) each other note as may be issued under the
Credit Agreement, each as originally executed, or if varied, extended,
supplemented, consolidated, amended, replaced, renewed, modified or restated
from time to time as so varied, extended, supplemented, consolidated, amended,
replaced, renewed, modified or restated (collectively, the "Note") and
guaranteeing payment, performance and discharge of each and every obligation,
covenant and agreement of Borrower contained in the Credit Agreement and in
certain other Loan Documents (as defined in the Credit Agreement).
(b) The payment, performance and discharge of each and every obligation,
covenant and agreement of Assignor contained herein, in the Credit Agreement, in
the Security Deed (as defined in Article III below) and in the other Loan
Documents (as defined in the Credit Agreement).
(c) Any and all additional advances made by any Lender to protect or
preserve the Property or the lien and security title hereof in and to the
Property, or for taxes, assessments or insurance premiums as hereinafter
provided (whether or not Assignor remains the owner of the Property at the time
of such advances).
(d) Any and all other indebtedness now or hereafter owing by Assignor or
Borrower to any Lender pursuant to the terms of the Credit Agreement, whether
now existing or hereafter arising or incurred, however evidenced or incurred,
whether express or implied, direct or indirect, absolute or contingent, due or
to become due, including, without limitation, all
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principal, interest, fees, expenses, yield maintenance amounts and
indemnification amounts, and all renewals, modifications, consolidations,
replacements and extensions thereof.
(e) All reasonable out-of-pocket costs and expenses incurred by the
Assignee in connection with the enforcement and collection of the Secured
Obligations, including, without limitation, all attorneys' fees and
disbursements, and all other such costs and expenses described in and incurred
pursuant to the Guaranty, the Note, the Credit Agreement, this Instrument, and
the other Loan Documents (as defined in the Credit Agreement) (collectively, the
"Enforcement Costs").
As further security for the Secured Obligations and the full and prompt
payment and performance of any and all obligations of Assignor to Assignee and
the Lenders under the Guaranty and the Loan Documents, Assignor hereby assigns
to Assignee any awards or payments which may be made in of Assignor's interest
in any of the Leases in any bankruptcy, insolvency or reorganization proceedings
in any state or federal court. Assignor hereby appoints Assignee as its
attorney-in-fact, effective during the continuance of an Event of Default, to
appear in any such proceeding and/or to collect any such award or payment.
ARTICLE I
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WARRANTIES AND COVENANTS
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1.01 Representations and warranties of Assignor. Assignor hereby
represents and warrants as follows.
(a) Assignor is the sole and absolute owner of the entire landlord's
or lessor's interest in the Leases and such rents, issues and
profits.
(b) Assignor has made no prior assignment of any of the Leases or
with respect to any of such rents, issues or profits which remains in
effect.
(c) Assignor has neither done any act nor omitted to do any act which
might prevent Assignee from, or materially limit Assignee in, acting
under any of the provisions of this Assignment.
(d) Neither the execution and delivery of this Assignment or any of
the Leases, the performance of each and every covenant of Assignor
under this Assignment and the Leases, conflicts with, or constitutes
a material breach or default under, any agreement, indenture or other
instrument to which Assignor is a party, or any law, ordinance,
administrative regulation or court decree which is applicable to
Assignor.
(e) No action has been brought or, so far as is known to Assignor, is
threatened, which would interfere in any material way with the right
of Assignor to execute this Assignment and perform all of Assignor's
obligations contained in this Assignment and in the Leases.
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1.02 Covenants of Assignor. Assignor hereby covenants and agrees as
follows.
(a) Assignor shall fulfill, perform and observe each and every
material term, condition and covenant of landlord or lessor contained
in each of the Leases; and shall take reasonable actions to enforce
the performance and observance of each and every material term,
condition and covenant of each of the Leases to be performed or
observed by the Tenant thereunder.
(b) Assignor shall not, without the prior written consent of
Assignee, (i) permit the prepayment of any rents under any of the
Leases for more than one (1) month prior to the accrual thereof; or
(ii) assign its interest in, to or under any of the Leases or the
rents, issues and profits from any of the Leases or from the Property
to any person or entity other than Assignee.
(c) The Assignee shall have the right, and the Assignor hereby
authorizes the Assignee, during the continuance of an Event of
Default, to communicate directly with any of the tenants or
guarantors for any purpose contemplated by this Assignment or any of
the Security Documents. In the event that any of the Leases is
terminated, the Assignor will take or cause to be taken all
reasonable steps within the power of the Assignor to market and lease
the untenanted rentable area of the Buildings to such tenants and
upon such terms and conditions as may be reasonably determined by
Assignor.
(d) Assignor shall deliver to Assignee correct and complete copies of
all of the Leases and all amendments, exhibits, addenda and schedules
thereto and all guaranties thereof, promptly upon the Assignee's
request therefor.
(e) Assignor shall take no action which will cause or permit the
estate of the Tenant under any of the Leases to merge with the
interest of Assignor in the Property or any portion thereof.
(f) Subject to the provisions of Section 1.03(a) hereof, Assignor
does hereby authorize and empower Assignee to collect all rents,
issues and profits arising or accruing under the Leases or from the
Property as they become due, whether or not the Assignee shall have
made entry or become a mortgagee in possession pursuant to the
Security Deed, and does hereby irrevocably authorize and direct, each
and every present and future Tenant of the whole or any part of the
Property, upon receipt of written notice from Assignee, to pay all
rents, issues and profits thereafter arising or accruing under the
Leases or from the Property to Assignee and to continue to do so
until otherwise notified by Assignee, and Assignor agrees that each
and every Tenant shall have the right to rely upon such notice by
Assignee without any obligation or right to inquire as to whether any
Event of Default exists and notwithstanding any notice or claim of
Assignor to the contrary, and that Assignor shall have no right or
claim against any Tenant for any rents paid by such Tenant to
Assignee following receipt of such notice. Assignee shall not
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give any such notice to the Tenants of the Property prior other than
during the continuance of an Event of Default.
(g) Assignor does hereby agree that during the continuance of an
Event of Default, Lender shall have the right to the appointment of a
receiver to collect all rents, issues and profits and to carry out
any other actions which Lender has the right to carry out under the
terms of this Assignment.
1.03 Covenants of Assignee. Assignee hereby covenants and agrees with
Assignor as follows:
(a) Although this Assignment constitutes a present, current and
absolute assignment of all Leases and all rents, issues and profits
from the Property, so long as no Event of Default (as herein defined)
has occurred and is continuing, Assignee shall not demand that such
rents, issues and profits be paid directly to Assignee, and Assignor
shall have the right to collect, but not more than one (1) month
prior to accrual, all such rents, issues and profits from the
Property (including, but not by way of limitation, all rents payable
under the Leases), provided, however, that Assignor shall collect and
receive all such rents, issues and profits from the Property as
trustee for the benefit of Assignee, and shall apply such rents,
issues and profits so collected to the Secured Obligations, to the
extent then due, with the balance, so long as no Event of Default has
occurred and is continuing, to the account of Assignor.
(b) Upon termination of the Credit Agreement and the payment in full
of the Secured Obligations, this Assignment shall be terminated and
released of record by Assignee and shall thereupon be of no further
force or effect.
ARTICLE II
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DEFAULT
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2.01 Event of Default. The term "Event of Default" shall mean (a) any
Event of Default under the Credit Agreement, as defined thereunder, or (b) any
Event of Default under the Security Deed, as defined thereunder, or (c) any
default in the performance of the obligations of Assignor hereunder which
default continues for a period of thirty (30) days after notice thereof from
Assignee, or (d) any representation or warranty of Assignor in this Assignment
shall prove to have been false or incorrect in any material respect upon the
date when made and shall continue to be false or incorrect on the date Assignee
takes action based on the default relating to such representation or warranty.
If an Event of Default shall occur and is continuing the Assignee may exercise
any and all remedies provided in Paragraph 2.02 of this Assignment, under the
Security Deed, under the Notes, and under any and all other instruments and
documents providing security for the Secured Obligations, or any other remedies
available under applicable law or any one or more of such remedies.
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2.02 Remedies. Upon the occurrence of any Event of Default, Assignee
may at its option, with or without notice or demand of any kind (except as may
be provided herein or in any of the Loan Documents), and without waiving such
Event of Default (provided, however, the Assignor acknowledges that as to
certain Events of Default, as set forth in the Credit Agreement, the Secured
Obligations automatically shall become and be immediately due and payable,
without any declaration or other act on the part of Assignee or any Lender),
exercise any or all of the following rights and remedies:
(a) Either with or without entry or taking possession of the
Property, give or require Assignor to give notice to any or all
Tenants under the Leases authorizing and directing such Tenants to
pay all rents, issues and profits and any other sums due under their
Leases directly to Assignee, whether or not the Assignee shall have
made entry or become a mortgagee in possession pursuant to the
Security Deed, and collect and receive (subject to the provisions of
Section 1.03 hereof) all rents, issues and profits and other sums due
under the Leases with respect to which such notice is given.
(b) Either with or without entry or taking possession of the
Property, perform any and all obligations of Assignor under any or
all of the Leases or this Assignment and exercise any and all rights
of Assignor herein or therein as fully as Assignor itself could do,
including, without limiting the generality of the foregoing,
enforcing, modifying, extending or terminating any or all of the
Leases, collecting, modifying, compromising, waiving or increasing
any or all of the rents payable thereunder, and obtaining new Tenants
and entering into new Leases on the Property on any terms and
conditions deemed reasonable by Assignee, and, to the extent Assignee
shall incur any costs in connection with the performance of any such
obligations of Assignor, including costs of litigation, then all such
reasonable costs shall become a part of the Secured Obligations,
shall bear interest from the incurring thereof at the interest rate
for overdue amounts specified in the Credit Agreement, and shall be
due and payable within ten (10) days after demand.
(c) Either with or without entry or taking possession of the
Property, in Assignor's or Assignee's name, institute any legal or
equitable action which Assignee deems reasonably necessary to collect
and receive any or all of the rents, issues and profits assigned
herein or to evict or remove any Tenants.
(d) Enter upon, take possession of, and use and operate all or any
portion of the Property which Assignee in its sole discretion deems
desirable to effectuate any or all of the foregoing remedies (subject
to Section 1.03 hereof), with full power to make alterations,
renovations, repairs or replacements thereto.
Assignee shall have full right to exercise any or all of the foregoing remedies
rights and without regard to the adequacy of security for any or all of the
Secured Obligations, and with or without the commencement of any legal or
equitable action or the appointment of any receiver or trustee.
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2.03 Application of Rents. All rents, issues and profits and any
other sums due under the Leases and with respect to the Property which are
collected by Assignee shall be applied by Assignee in such order as Assignee in
its sole discretion may elect against: (i) all reasonable costs and expenses,
including reasonable attorneys' fees, incurred in connection with the operation
of the Property, the performance of Assignor's obligations under the Leases or
the collection of the rents thereunder; (ii) all reasonable costs and expenses,
including reasonable attorneys' fees, incurred in the collection of any of all
of the Secured Obligations, including all reasonable costs, expenses and
reasonable attorneys' fees incurred in seeking to realize on or to protect or
preserve Assignee's interest in any other collateral securing any or all of the
Secured Obligations; and (iii) any or all unpaid principal of and interest on
the Secured Obligations.
2.04 No Liability of Assignee. Assignee shall not be obligated to
perform or discharge, nor does Assignee hereby undertake to perform or
discharge, any obligation, duty or liability of Assignor under any of the Leases
or under or by reason of this Assignment, except those arising from and after
Assignee takes possession of the Property after an Event of Default. Prior to
Assignee's taking possession of the Property after an Event of Default, this
Assignment shall not operate to place upon Assignee responsibility for the
control, care, management or repair of the Property, nor for the carrying out of
any of the terms and conditions of any of the Leases, nor shall it operate to
make Assignee responsible or liable for any waste committed on the Property, for
any dangerous or defective condition of the Property, or for any negligence in
the management, upkeep, repair or control of the Property resulting in loss or
injury or death to any person. Assignee shall not be liable for any loss
sustained by Assignor resulting from Assignee's failure to let the Property
after taking possession of the Property after an Event of Default, unless such
loss is caused by the willful misconduct or gross negligence of Assignee.
2.05 Indemnification. Assignor shall and does hereby agree to
indemnify and to hold Assignee and the Lenders harmless of and from any and all
claims, demands, liability, loss or damage (including all costs, expenses, and
reasonable attorneys' fees incurred in the defense thereof) asserted against,
imposed on or incurred by Assignee or any Lender in connection with or as a
result of this Assignment or the exercise of any rights or remedies under this
Assignment or under any of the Leases or by reason of any alleged obligations or
undertakings of Assignee or any Lender to perform or discharge any of the terms,
covenants or agreements contained in any of the Leases provided that this
indemnity shall not protect Assignee or any Lender with respect to matters
caused by its own willful misconduct or gross negligence. Should Assignee or any
Lender incur any such liability, loss or damage, or in the defense of any such
claims or demands, for which it is to be indemnified by Assignor as aforesaid,
the amount thereof shall be added to the Secured Obligations, shall bear
interest at the rate for overdue amounts specified in the Credit Agreement from
the date incurred until paid, shall be secured by this Assignment, the Security
Deed and the other Loan Documents, and shall be payable immediately within ten
(10) days after demand.
ARTICLE III
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DEFINITIONS
-----------
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The following terms as used herein shall have the following meanings:
"Assignment" shall mean this Assignment of Leases and Rents between
Assignor and Assignee.
"Assignor" shall have the meaning assigned to that term in the
preamble hereto.
"Default" shall mean any event which, with the giving of notice or
the lapse of time, or both, would become an Event of Default.
"Event of Default" shall have the meaning assigned to that term in
Section 2.01.
"Lenders" shall mean the lending institutions which are from time to
time Lenders as defined in the Credit Agreement
"Property" shall mean the property which is more particularly
described in Exhibit A attached hereto.
"Security Deed" shall mean the Deed to Secure Debt and Security
Agreement from Assignor to Assignee pursuant to which Assignor has conveyed the
Property as security for the Obligations.
"Tenants" shall mean those tenants, lessees and licensees occupying
space pursuant to the Leases on the Property.
ARTICLE IV
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GENERAL PROVISIONS
------------------
4.01 Successors and Assigns. This Assignment shall inure to the
benefit of and be binding upon Assignor and Assignee and their respective heirs,
executors, legal representatives, successors and assigns (but in the case of
assigns of Assignor, only if and to the extent that Assignee has consented in
writing to Assignor's assignment of its rights or obligations hereunder to such
assigns). Whenever a reference is made in this Assignment to "Assignor",
"Assignee" or "Lender", such reference shall be deemed to include a reference to
the successors and assigns of such party.
4.02 Assignee's Rights of Assignment; Rights of Assignees. Assignee
may assign to any subsequent holder of the Security Deed, or to any person
acquiring title to the Property, all of Assignee's right, title and interest in
any of the Leases and rents, issues and profits from the Property. No such
assignee shall have any liability for any obligation which accrued under any of
the Leases prior to the assignment to such assignee nor shall such assignee have
any obligation to account to Assignor for any rental payments which accrued
prior to such assignment.
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4.03 Terminology. All personal pronouns used in this Assignment,
whether used in the masculine, feminine or neuter gender, shall include all
other genders, and the singular shall include the plural, and vice versa. Titles
of Articles are for convenience only and neither limit nor amplify the
provisions of this Assignment.
4.04 Severability. If any provision of this Assignment or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Assignment and the
application of such provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
4.05 Applicable Law. This Assignment shall be interpreted, construed
and enforced according to the laws of the State in which the Property is
located.
4.06 No Third Party Beneficiaries. This Assignment is made solely for
the benefit of Assignee and its assigns. No Tenant under any of the Leases nor
any other person shall have standing to bring any action against Assignee as the
result of this Assignment, or to assume that Assignee will exercise any remedies
provided herein, and no person other than Assignee and the Lenders shall under
any circumstances be deemed to be a beneficiary of any provision of this
Assignment.
4.07 No Oral Modifications. Neither this Assignment nor any
provisions hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought.
4.08 Cumulative Remedies. The remedies herein provided shall be in
addition to and not in substitution for the rights and remedies vested in
Assignee in any of the Loan Documents or in law or equity, all of which rights
and remedies are specifically reserved by Assignee. The remedies herein provided
or otherwise available to Assignee shall be cumulative and may be exercised
concurrently. The failure to exercise any of the remedies herein provided shall
not constitute a waiver thereof, nor shall use of any of the remedies herein
provided prevent the subsequent or concurrent resort to any other remedy or
remedies. It is intended that this clause shall be broadly construed so that all
remedies herein provided or otherwise available to Assignee shall continue and
be each and all available to Assignee until the Secured Obligations shall have
been paid in full.
4.09 Counterparts. This Assignment may be executed in any number of
counterparts all of which taken together shall constitute one and the same
instrument, and any of the parties or signatories hereto may execute this
Assignment by signing any such counterpart.
4.10 Further Assurance. At any time and from time to time, upon
written request by Assignee, Assignor will make, execute and deliver, or cause
to be made, executed and delivered, to Assignee and, where appropriate, cause to
be recorded and/or filed and from time to time thereafter to be re-recorded
and/or refiled at such time and in such offices and places as shall be deemed
reasonably necessary by Assignee, any and all such other and further
assignments, deeds to secure debt, mortgages, deeds of trust, security
agreements, financing statements, continuation
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statements, instruments of further assurance, certificates and other
documents as may, in the opinion of Assignee, be reasonably necessary in order
to effectuate, complete, or perfect, or to continue and preserve (a) the
obligations of Assignor under this Assignment and (b) the security interest
created by this Assignment as a first and prior security interest upon the
Leases and the rents, issues and profits from the Property. Upon any failure by
Assignor so to do, Assignee may make, execute, record, file, re-record and/or
refile any and all such assignments, deeds to secure debt, mortgages, deeds of
trust, security agreements, instruments, certificates, and documents for and in
the name of Assignor, and Assignor hereby irrevocably appoints Assignee the
agent and attorney-in-fact of Assignor so to do.
4.11 Notices. Any and all notices, elections, demands or requests
provided for or permitted to be given pursuant to this Assignment shall be given
or served as provided in the Credit Agreement, and the address of the Assignor
shall be the same as the address of the Borrower as applicable from time to time
under such notice provisions of the Credit Agreement.
4.13 Modifications, Etc. Assignor hereby consents and agrees that
Assignee may at any time and from time to time, without notice to or further
consent from Assignor, either with or without consideration, surrender any
property or other security of any kind or nature whatsoever held by it or by any
person, firm or corporation on its behalf or for its account, securing the
Secured Obligations; substitute for any collateral so held by it, other
collateral of like kind, or of any kind; agree to modification of the terms of
the Notes or the Loan Documents; extend or renew the Notes or any of the Loan
Documents for any period; grant releases, compromises and indulgences with
respect to the Notes or the Loan Documents to any persons or entities now or
hereafter liable thereunder or hereunder; release any guarantor or endorser of
the Notes, the Security Deed, the Credit Agreement, or any other Loan Documents;
or take or fail to take any action of any type whatsoever; and no such action
which Assignee shall take or fail to take in connection with the Loan Documents,
or any of them, or any security for the payment of the Secured Obligations or
for the performance of any obligations or undertakings of Assignor, nor any
course of dealing with Assignor or any other person, shall release Assignor's
obligations hereunder, affect this Assignment in any way or afford Assignor any
recourse against Assignee. The provisions of this Assignment shall extend and be
applicable to all renewals, amendments, extensions, consolidations and
modifications of the Loan Documents and the Leases, and any and all references
herein to the Loan Documents or the Leases shall be deemed to include any such
renewals, amendments, extensions, consolidations or modifications thereof.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, Assignor has executed this Assignment under seal,
as of the day and year first above written.
Signed, sealed and delivered XXXXX RAVINIA, LLC, a Delaware limited
by Assignor in the presence of: liability company
By: XXXXX EQUITY, INC., a Florida
corporation, Its sole Member
/S/ Xxxxx Xxxxxx By: /S/ Xxxxxxxxxxx X. Xxxxxx
------------------------------------ --------------------------------
Unofficial Witness Xxxxxxxxxxx X. Xxxxxx
Its Senior Vice President
/S/ Xxx X. Xxxxx
Notary Public
Commission Expiration Date:
[NOTARIAL SEAL]
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EXHIBIT "A"
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PARCEL ONE (FEE)
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Xxx 000 xx xxx 00xx
Xxxxxxxx xx XxXxxx Xxxxxx, Xxxxxxx, being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING, commence at a Georgia DOT concrete monument
located on the northern right-of-way line of Interstate 285 (having a variable
right-of-way width), 20.24 feet West of the northeastern right-of-way line of
Xxxxxxx-Xxxxxxxx Road (having a variable right-of-way width), and run thence N
80(degree) 03' 05" E a distance of 20.24 feet to a point, thence N 80(degree)
03' 05" E a distance of 839.96 feet to a concrete right-of-way monument; thence
N 69(degree) 56' 48" E a distance of 397.59 feet to a point; thence N 00(degree)
59' 05" E a distance of 223.60 feet to a point; thence N 89(degree) 00' 55" W a
distance of 132.60 feet to a point, said point being the TRUE POINT OF
BEGINNING. From the TRUE POINT OF BEGINNING as thus established, run thence N
89(degree) 00' 55" W a distance of 79.22 feet to a point; thence S 45(degree)
59' 05" W a distance of 46.48 feet to a point; thence N 44(degree) 00' 55" W a
distance of 41.83 feet to a point, thence N 00(degree) 59' 05" E a distance of
111.72 feet to a point; thence N 20(degree) 58' 57" E a distance of 100.00 feet
to a point; thence N 00(degree) 59' 05" E a distance of 131.32 feet to a point;
thence N 11(degree) 59' 14" W a distance of 189.52 feet to a point; thence N
00(degree) 59' 05" E a distance of 145.57 feet to a point; thence N 89(degree)
00' 55" W a distance of 45.64 feet to a point, thence S 00(degree) 58' 41" W a
distance of 12.44 feet to a point, thence N 89(degree) 01' 19" W a distance of
24.00 feet to a point, thence N 00(degree) 58' 41" E a distance of 63.00 feet to
a point; thence N 26(degree) 04' 04" W a distance of 35.19 feet to a point,
thence N 00(degree) 58' 41" E a distance of 137.00 feet to a point, thence N
85(degree) 41' 58" E a distance of 27.69 feet to a point, thence S 89(degree)
00' 55" E a distance of 242.00 feet to a point, thence S 00(degree) 59' 05" W
with a distance of 683 .67 feet to a point, thence S 20(degree) 58' 57" W a
distance of 99.40 feet to a point, thence S 00(degree) 59' 05" W a distance of
106.90 feet to a point, said point being the TRUE POINT OF BEGINNING.
The above-described property contains 3.7595 acres (163,763 square feet) and is
shown as Lot C on and described according to that certain Lot Designation Plat
(Lot C) prepared for Ravinia III Associates Limited Partnership and Ticor Title
Insurance Company by Xxxx-Xxxxxx Engineers, Inc., Xxxxx X. Xxxxxx, G.R.L.S. No.
1821, dated September 14, 1989, recorded in Plat Book 90, page 38, DeKalb
County, Georgia Records, which survey is incorporated herein and by this
reference made a part hereof.
PARCEL TWO (DRAINAGE EASEMENT)
A perpetual non-exclusive easement for drainage over and across the following
property:
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Xxx 000 xx xxx 00xx
Xxxxxxxx xx XxXxxx Xxxxxx, Xxxxxxx, being more particularly described as
follows: TO FIND THE TRUE POINT OF BEGINNING, commence at a Georgia DOT concrete
monument located on the northern right-of-way line of Interstate 285 (having a
variable right-of-way width), 20.24
12
feet west of the northeastern right-of-way line of Xxxxxxx-Xxxxxxxx Road
(having a variable right-of-way width), and run thence N 80(degree) 03' 05" E a
distance of 20.24 feet to the point of intersection of the northern right-of-way
line of Interstate 285 and the northeastern right-of-way line of
Xxxxxxx-Xxxxxxxx Road, run in a generally northwesterly and northeasterly
direction along said northeastern right-of-way line at Xxxxxxx-Xxxxxxxx Road the
following courses and distances: N 48(degree) 10' 13" W a distance of 38.00 feet
to a point, N 14(degree) 52' 32" W a distance of 25.00 feet to a point; N
11(degree) 44' 52" W a distance of 201.62 feet to a point; N 14(degree) 52' 30"
W a distance of 158.10 feet to a point; along the arc of a 1001.75 foot radius
curve an arc distance of 77.43 feet to a point (said arc being subtended by a
chord bearing N 12(degree) 39' 39" W and having a length of 77.41 feet); N
07(degree) 50' 17" W a distance of 217.35 feet to a point N 00(degree) 46' 26" E
a distance of 36.66 feet to a point; along the arc of a 1303.98 foot radius
curve an arc distance of 181.44 feet to a point (said arc being subtended by a
chord bearing N 09(degree) 02' 44" E and having a length of 181.29 feet); along
the arc of a 1,292.982 foot radius curve an arc distance of 166.01 feet to a
point, (said arc being subtended by a chord bearing N 23(degree) 14' 59" E and
having a length of 165.90 feet); N 17(degree) 31' 00" E a distance of 192.5 feet
to a point; N 69(degree) 14' 06" W a distance of 7.00 feet to a point; N
20(degree) 45' 35" E a distance of 247.16 feet to a point; thence departing said
northeastern right-of-way line of Xxxxxxx-Xxxxxxxx Road, run S 89(degree) 01'
19" E a distance of 1,178.29 feet to a point; run thence S 00(degree) 59' 05" W
a distance of 1,183.50 feet to a point located along said northern right-of-way
line of Interstate 285; run thence in a generally southwesterly direction along
said northern right-of-way line of Interstate 285 the following courses and
distances; S 69(degree) 56' 48" W a distance of 397.59 feet to a point; S
80(degree) 03' 05" W a distance of 839.96 feet to a point, said point being the
TRUE POINT OF BEGINNING.
The above-described property, consisting of 40.7803 acres, is more
particularly shown on, and described according to, that certain Composite Plat
prepared for Ravinia II Associates and Bogamij N. V. and Ticor Title Insurance
Company, by Xxxx-Xxxxxx Engineers, Inc., Xxxxx X. Xxxxxxxx, G.R.L.S. No. 2137,
dated August 5, 1985, last revised November 13, 1985, said plat being
incorporated herein by this reference, and made a part of this description.
LESS AND EXCEPT
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Xxx 000 xx xxx 00xx
Xxxxxxxx xx XxXxxx Xxxxxx, Xxxxxxx, containing 2.5653 acres and being designated
as Lot "A" is more particularly shown on, and described according to that
certain Lot Designation Plat (Lot "A") prepared for Ravinia I Associates,
Bogamij N.V., and Ticor Title Insurance Company, by Xxxx-Xxxxxx Engineers, Inc.,
Xxxxx X. Xxxxxxxx, G.R.L.S. No. 2137, dated July 31, 1984, last revised November
13, 1985, recorded in Plat Book 81, page 14, DeKalb County, Georgia Records,
which plat is incorporated herein by this reference and hereby made a part of
this description.
AND LESS AND EXCEPT:
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Xxx 000 xx xxx 00xx
Xxxxxxxx xx XxXxxx Xxxxxx, Xxxxxxx, containing 2.4561 acres and being designated
as Lot "A", is more particularly shown on, and described according to that
certain Lot Designation Plat (Lot "B") prepared for Ravinia II Associates,
Bogamij N.V., and Ticor Title Insurance Company, by
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Xxxx-Xxxxxx Engineers, Inc., Xxxxx X. Xxxxxxxx, G.R.L.S. No. 2137, dated
October 8, 1985, last revised November 13, 1985, recorded in Plat Book 81, page
13, DeKaIb County, Georgia Records, which plat is incorporated herein by this
reference and hereby made a part of this description.
AND LESS AND EXCEPT:
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Xxx 000 xx xxx 00xx
Xxxxxxxx xx XxXxxx Xxxxxx, Xxxxxxx, being more particularly described as
follows:
BEGINNING at a concrete monument found at the intersection of the eastern
right-of-way line of Xxxxxxx-Xxxxxxxx Road (having a variable right-of-way
width), with the northern right-of-way line of Interstate Xxxxxxx Xx. 000; run
thence in a generally northwesterly, northerly and northeasterly direction along
the eastern right-of-way line of Xxxxxxx-Xxxxxxxx Road the following courses and
distances: N 43(degree) 24' 55" W a distance of 45.55 feet to an iron pin;
thence N 17(degree) 28' 40" W a distance of 327.10 feet to an iron pin; thence
along the arc of a 1,049.746 foot radius curve concave to the right (having a
chord bearing N 01(degree) 38' 28" E and a length of 687.64 feet) an arc
distance of 700.57 feet to an iron pin; thence N 20(degree) 45' 35" E a distance
of 240.44 feet to an iron pin placed, said iron pin placed being the TRUE POINT
OF BEGINNING. From the TRUE POINT OF BEGINNING as thus established, continue
along the eastern right-of-way line of Xxxxxxx-Xxxxxxxx Road N 20(degree) 45'
35" E a distance of 247.16 feet to an iron pin found; thence leaving the eastern
right-of-way line of Xxxxxxx-Xxxxxxxx Road, run S 89(degree) 01' 19" E a
distance of 203.03 feet to an iron pin placed; thence S 35(degree) 15' 35" W a
distance of 280.25 feet to an iron pin placed; thence S 63(degree) 00' 35" W a
distance of 88.93 feet to an iron pin placed; thence N 47(degree) 45' 59" W a
distance of 58.12 feet to an iron pin placed; thence N 69(degree) 14' 06" W a
distance of 7.00 feet to an iron pin placed, said iron pin placed being the TRUE
POINT OF BEGINNING.
The above-described property contains .9417 acres and is shown on, and described
according to that certain Survey of Police Precinct Parcel for Xxxxx Atlanta
Limited, prepared by Xxxx-Xxxxxx Engineers, Inc., Xxxxx Xxxxx Xxxxxxxx, G.R.L.S.
No. 2137, dated May 10, 1985, which survey is incorporated herein by this
reference and made a part of this description.
AND LESS AND EXCEPT:
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Xxx 000 xx xxx 00xx
Xxxxxxxx xx XxXxxx Xxxxxx, Xxxxxxx, contains 4.5857 acres and is shown as Hotel
Site (Includes Water Feature Site) on, and described according to that certain
Lot Designation Plat (Hotel Site) prepared for Xxxxx Atlanta Limited and
HT/Xxxxx Ravinia Associates, Ltd., prepared by Xxxx-Xxxxxx Engineers, Inc.,
Xxxxx X. Xxxxxxxx, G.R.L.S. No. 2137, dated June 27, 1984, recorded in Plat Book
77, page 161, DeKalb County, Georgia Records, which certain Lot Designation Plat
(Hotel Site) is incorporated herein by this reference and hereby made a part of
this description.
AND LESS AND EXCEPT:
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ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Xxx 000 xx xxx 00xx
Xxxxxxxx xx XxXxxx Xxxxxx, Xxxxxxx, contains 3.7595 acres (163,763 square feet)
and is shown as Lot C on and described according to that certain Lot Designation
Plat (Lot C) prepared for Ravinia III Associates Limited Partnership and Ticor
Title Insurance Company by Xxxx-Xxxxxx Engineers, Inc., Xxxxx X. Xxxxxx,
G.R.L.S. No. 1821, dated September 14, 1989, recorded in Plat Book 90, page 38,
DeKaIb County, Georgia Records, which survey is incorporated herein and by this
reference made a part hereof.
PARCEL THREE (OPEN SPACE/SCENIC EASEMENT)
A non-exclusive easement for the purpose of preserving open space and
maintaining such open space as a visual appurtenance, as more fully described in
that certain Easement Agreement, dated as of August 1, 1984, by and between
Xxxxx Atlanta Limited, a Georgia limited partnership, and Xxxxx Ravinia I, Ltd.,
a Georgia limited partnership, recorded at Deed Book 5037, page 115, DeKaIb
County, Georgia Records, as said easement is amended by Amendment to Limited
Warranty Deed with Easements, Restrictions, Reservations, Release and Grant of
Development Rights dated December 13, 1996, between Xxxxx Atlanta Limited and
Ravinia III Associates Limited Partnership, recorded at Deed Book 9254, page
693, DeKaIb County, Georgia records. The foregoing easements are more fully
described in that certain Limited Warranty Deed with Easements, Restrictions,
Reservations, Release and Grant of Development Rights, from Xxxxx Atlanta
Limited, a Georgia limited partnership, to Ravinia III Associates Limited
Partnership, dated September 28, 1989, recorded at Deed Book 6532, page 201, as
amended by Amendment to Limited Warranty Deed with Easements, Restrictions,
Reservations, Release and Grant of Development Rights, dated December 13, 1996,
recorded at Deed Book 9254, page 693, aforesaid Records; and as amended by
Memorandum of Agreement and Second Amendment to Limited Warranty Deed dated
August 25, 1997, recorded at Deed Book 10696, page 690, aforesaid Records.
PARCEL FOUR
Easements, rights and appurtenances inuring to the benefit of and running with
the title to the insured land under that certain Restated Declaration of
Covenants, Conditions and Restrictions for Ravinia, dated July 5, 1984, and
recorded at Deed Book 5017, page 266, aforesaid records, as modified by Release
of Utility Easement Area, dated August 2, 1984, and recorded at Deed Book 5037,
page 214, aforesaid records, and as further modified by Release of Utility
Easement Area as contained in Limited Warranty Deed with Easements,
Restrictions, Release and Grant of Development Rights from Xxxxx Atlanta Limited
to Ravinia III Associates Limited Partnership, dated September 28, 1989, and
recorded at Deed Book 6532, page 201, aforesaid Records.
PARCEL FIVE
Easements, rights and appurtenances inuring to the benefit of and running with
the title to the insured land under that certain Storm Sewer, Construction and
Encroachment Easement
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Agreement between Ravinia II Associates and Ravinia III Associates Limited
Partnership, dated September 28, 1989, and recorded at Deed Book 6532, page 242,
aforesaid Records.
PARCEL SIX
Easements, rights and appurtenances inuring to the benefit of and running with
the title to the insured land under that certain Encroachment Easement from
Xxxxx Atlanta Limited and Ravinia Property Owners Association, Inc., to Ravinia
III Associates Limited Partnership, dated December 13, 1996, and recorded at
Deed Book 9254, page 735, DeKaIb County, Georgia Records. NOTE: This Policy
insures that, so long as said Encroachment Easement remains in effect, the
improvements may remain so long as they shall stand, and that if the same are
damaged or destroyed, they may be replaced in substantially the same condition
and location.
PARCEL SEVEN (COMMUNICATION LINE EASEMENT)
Non-exclusive easement, rights and appurtenances inuring to the benefit of and
running with the title to the insured land under that certain Communication Line
Easement Agreement between Xxxxx Atlanta Limited and Ravinia Property Owners
Association, Inc. and Ravinia III Associates Limited Partnership, dated June 30,
1995, and recorded at Deed Book 9254, page 698, DeKaIb County, Georgia Records.
PARCEL EIGHT (SIGN EASEMENT)
Non-exclusive easement, rights and appurtenances inuring to the benefit of
running with the title to the insured land under that certain Sign Easement
Agreement between Xxxxx Atlanta Limited and Ravinia III Associates Limited
Partnership, dated December 13 1996, and recorded at Deed Book 9254, page 722,
DeKaIb County, Georgia Records.
PARCEL NINE (GENERAL UTILITY LINE EASEMENT)
Non-exclusive easement, rights and appurtenances inuring to the benefit of and
running with the title to the insured land under that certain General Utility
Line Easement (and subject to terms and conditions contained therein) from Xxxxx
Atlanta Limited and Ravinia Property Owners Association, Inc. to Ravinia III
Associates Limited Partnership, dated December 13, 1996, and recorded at Deed
Book 9254, page 763, DeKaIb County, Georgia Records.
All of the above described property was conveyed by Limited Warranty Deed from
Ravinia III Associates Limited Partnership to Xxxxx Ravinia, LLC dated January
31, 2002 and recorded at Deed Book 12914, page 638, DeKaIb County, Georgia
Records.
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