EXHIBIT 10(j)
ASSIGNMENT AND SECURITY AGREEMENT
(Letter of Credit)
THIS ASSIGNMENT AND SECURITY AGREEMENT is made as of the 17th day of
December, 2002, by and among XXXXX RAVINIA, LLC, a Delaware limited liability
company, having an address of 000 Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx
00000 (hereinafter collectively referred to as "Borrower" or "Debtor"); and
METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation, whose address is 00
Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: Senior Vice-President,
Real Estate Investments ("Lender").
PRELIMINARY STATEMENTS
A. Borrower has made and issued to Lender a Promissory Note dated of even
date evidencing an original principal indebtedness of Eighty-Five Million and
No/100 Dollars ($85,000,000.00) (said Promissory Note, as may be hereafter
modified, amended, extended or renewed from time to time, being hereinafter
collectively referred to as the "Note"), which by reference is made a part
hereof to the same extent as though set out in full herein.
B. The Note is secured by, among other security, a Deed to Secure Debt and
Security Agreement of even date from the Borrower for the benefit of Lender (the
"Deed to Secure Debt") covering certain real estate more particularly described
in the Deed to Secure Debt (the "Property"), and an Assignment of Leases of even
date from the Borrower to the Lender, assigning as collateral Borrower's
interest, as landlord under all leases of space in the Property, including,
without limitation, Borrower's interest as Landlord under the Six Continents
Lease (as each are hereinafter defined).
C. The Six Continents Lease requires the Tenant thereunder to provide a
Letter of Credit (as hereinafter defined) for the purposes of securing
compliance of the Tenant with the terms of the Six Continents Lease. The Lender
has required that Debtor assign all rights it may now or hereafter have under
the Letter of Credit and the proceeds thereof, as additional security for the
Loan. The Debtor desires to induce Lender to make the Loan to Borrower and/or
continue to make advances under the Loan by execution of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Preliminary Statements and for
other good and valuable consideration, the receipt thereof being hereby
acknowledged, the parties hereto hereby agree as follows:
1. Certain Definitions.
"Collateral" shall mean all right, title and interest of Debtor now owned
or hereafter acquired in and to the Letter of Credit or to receive the proceeds
of the Letter of Credit or to otherwise receive the benefit of any draw upon or
under the terms and provisions of the Letter of Credit, whether such right,
title and interest of Debtor is classified as a letter of credit right, account,
contract right, general intangible or instrument under applicable law, together
with all proceeds thereof.
"Deed to Secure Debt" shall have the meaning ascribed to such term in the
Preliminary Statements.
"Event of Default" shall have the meaning ascribed to such term in the Deed
to Secure Debt.
"Improvements" shall mean the premises demised under the Six Continents
Lease.
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"Lease" shall mean the Six Continents Lease.
"Letter of Credit" shall mean the Six Continents Letter of Credit.
"Six Continents Letter of Credit" shall have the meaning set forth on
Exhibit A.
"Liabilities" shall mean (1) all liabilities and obligations now or
hereafter owing to Lender under any of the Loan Documents; and (2) all
liabilities and obligations now or hereafter owing by Debtor to Lender under
this Agreement.
"Loan" shall mean the loan evidenced by the Note.
"Loan Documents" shall mean the Note, Deed to Secure Debt, and any other
instrument or document now or hereafter executed in connection with the Loan or
as security for the Loan, all as modified, amended or supplemented from time to
time.
"Note" shall have the meaning ascribed to such term in the Preliminary
Statements.
"Property" shall have the meaning ascribed to such term in the Preliminary
Statements.
2. Assignment and Grant of Security Interest. Subject to the terms of the
Lease, Debtor hereby assigns to Lender the Collateral and hereby grants to
Lender a continuing security interest in and lien upon the Collateral as
additional security for the payment and performance of the Liabilities. Lender
agrees to accept the assignment of the Collateral in accordance with the terms
and conditions of the Lease and this Agreement.
3. Possession of Letter of Credit. The Debtor shall maintain possession of
the Letter of Credit, except that, following the occurrence of an Event of
Default, the Debtor will, upon request of Lender, deliver possession of the
original Letter of Credit to Lender subject to the terms of the Lease.
4. Proceeds of Collateral. The proceeds of the Collateral shall in all
events be paid or delivered to Lender, whether such proceeds are collected by
Debtor or by Lender. Subject to the terms of the Lease, the Debtor agrees that
Debtor will, upon Lender's request, execute and deliver any documentation
necessary to authorize and direct each issuer of each Letter of Credit to pay or
deliver all of the proceeds of the Collateral to Lender. The proceeds of the
Collateral shall be held by Lender for disbursement in accordance with the terms
and provisions of the Lease; provided, however, if at any time the Lease imposes
no restrictions upon the disbursement of the proceeds of the Collateral, then
the provisions of this Agreement shall govern such disbursement. Subject to the
terms of the Lease, any proceeds of the Collateral received by Lender shall be
applied by Lender in accordance with the terms of this paragraph prior to the
occurrence of an Event of Default and in accordance with the terms of the
paragraph of this Agreement captioned "Application of Proceeds of Collateral"
following the occurrence of an Event of Default. Prior to the occurrence of an
Event of Default, the Lender will hold all proceeds of draws upon the applicable
Letter of Credit as additional security for the Loan and such amounts will be
deposited with Lender and held by Lender under the terms and provisions of this
Agreement under the following conditions (subject, however, in all events to any
valid contractual obligations under the Lease governing the proceeds of such
Letter of Credit): (a) the Debtor may, as long as no Event of Default exists,
make draws upon such proceeds on a monthly basis for the purposes of payment of
costs and expenses incurred by Debtor in connection with the performance of work
to refit and release space in the Improvements and for payment of leasing
commissions incurred by Debtor in connection with releasing of space in the
Improvements, (b) the Lender will, as long as no Event of Default exists, also
allow the proceeds of the Letter of Credit to be used to pay monthly debt
service payments on the Note if and only if there is not sufficient Available
Funds (as hereinafter defined) from the Property to pay the monthly debt service
and such proceeds may be used to pay monthly debt service only to the extent of
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the deficiency in Available Funds. As used herein, "Available Funds" shall mean
the gross rental income from the Property less ordinary operating expenses;
provided, however, that, for the purposes of this definition, the amount of
Available Funds shall not be reduced by expenditures for capital expenses,
tenant improvements or leasing commissions, (c) such fund shall bear interest
for the benefit of Debtor as long as Debtor pays Lender a reasonable and
customary set up fee for opening the interest bearing account, and (d) once a
new tenant or tenants is or are in occupancy and paying rent under a new lease
or leases approved by Lender covering all of the space vacated under the Lease,
then the remaining amount of the proceeds for the Lease shall, as long as no
Event of Default exists, be paid to Debtor.
5. Draws Upon Letter of Credit. The Debtor hereby covenants and agrees that
Debtor will take all action within its power and authority necessary or
desirable to keep each Letter of Credit in full force and effect. The Debtor
further agrees that it will take all action within its power and authority
necessary or desirable to draw upon the applicable Letter of Credit or otherwise
to cause the issuer of the applicable Letter of Credit to pay in accordance with
the terms and provisions of the applicable Letter of Credit upon the occurrence
of any event or events that give rise to a contractual or legal right to draw
upon the applicable Letter of Credit.
6. Representations, Covenants and Warranties of Debtor and Borrower. Debtor
and Borrower hereby represent, covenant, warrant, and agree to and with Lender
as follows:
(a) All risk of loss of the Collateral hereunder shall be upon Debtor
except for loss caused by Lender's gross negligence or willful misconduct;
(b) Debtor shall keep the Collateral free and clear from any and all
assignments, security interests, unpaid charges, attachments, levies, and liens
of every kind, except for the assignment and security interest granted hereunder
to Lender;
(c) Debtor shall not change its name or the state in which its chief
executive office is located or the jurisdiction of its organization without
having given Lender at least sixty (60) days prior written notice;
(d) Debtor shall not amend, modify, sell, assign, transfer, convey or
otherwise dispose of any of the Collateral;
(e) Debtor agrees that Lender shall have the right to inspect, audit,
examine, check, or make copies of, or extracts from, the books, files, accounts,
and all other records of Debtor pertaining to any of the Collateral;
(f) Debtor (i) will execute, or cause to be executed, and deliver to
Lender any and all documents necessary to give effect to this Agreement,
including specifically all necessary financing statements, (ii) authorizes
Lender to file UCC financing statements covering the Collateral in any filing
offices and (iii) shall reimburse Lender for the costs of filing or recording
any such documents in all public offices deemed necessary by Lender;
(g) The original Letters of Credit shall be maintained in Debtor's
possession, except as set forth in paragraph 3 above; and
(h) Debtor shall maintain its existence as a Delaware limited
liability company in good standing and shall not dissolve, liquidate or
otherwise terminate its existence as a limited liability company in good
standing under the laws of the State of Delaware.
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7. Events of Default. It is understood and agreed that an event of default
("Event of Default") shall be deemed to have occurred under this Agreement, and
Lender shall be entitled to take such actions as are elsewhere provided herein,
in the event that an Event of Default (as defined in the Deed to Secure Debt)
occurs under the Deed to Secure Debt. In addition, this Agreement is a "Loan
Document" as defined in the Deed to Secure Debt, and any Event of Default under
this Agreement shall constitute an Event of Default under the Deed to Secure
Debt and the Note.
8. Rights and Remedies Upon Default. Upon and after the occurrence of any
one or more of the Events of Default specified herein, Lender shall receive all
proceeds of the Collateral and apply such proceeds as set forth in the paragraph
hereof captioned "Application of Proceeds of Collateral", subject to the
requirements of the applicable Lease as described in Section 5 above. The Debtor
hereby constitutes and appoints the Lender as its attorney-in-fact, which
appointment shall be irrevocable and coupled with an interest, to execute in the
name of and on behalf of Debtor all documents and instruments necessary or
desirable to cause the issuer of the applicable Letter of Credit to pay in
accordance with the terms and provisions of the applicable Letter of Credit. In
addition, at the option of Lender, and without any notice to or demand upon
Debtor or Borrower of any kind, all Liabilities shall become immediately due and
payable, and Lender shall thereupon also have any and all rights and remedies
afforded to a secured party under the Uniform Commercial Code as adopted and in
force in the applicable jurisdiction, together with every right and remedy
available to Lender under any other applicable law and under this Agreement. In
addition to, and without limiting the generality of the foregoing, Lender shall
have the following rights and remedies upon and after any such occurrence and
acceleration, subject to the requirements of the Lease as described in Section 4
above:
(a) The right at any time or times, without advertisement or
publication (unless required by law), to sell, lease or otherwise dispose of any
or all of the Collateral at public or private sale, for cash, upon credit or
upon such other terms as Lender deems advisable in its sole discretion, or
otherwise to realize upon the whole or from time to time any part of the
Collateral in which Lender shall have a security interest hereunder, Borrower
remaining liable for any deficiency; provided, however, that any such remedy
taken with respect to the Letter of Credit shall be subject to the terms of the
Lease. Lender may bid and be the purchaser at any such sale if permitted by law;
and
(b) The right to incur reasonable attorney's fees and expenses in
exercising any of the rights, remedies, powers or privileges provided hereunder,
and the right (but not the obligation) to pay, satisfy and discharge, or to
bond, deposit or indemnify against, any tax or other lien which in the opinion
of Lender or its counsel may in any manner or to any extent be a lien upon any
of the Collateral, all of which fees, payments and expenses shall become part of
Lender's expenses of retaking, holding, preparing for sale and the like, and
shall be added to and become a part of the principal amount of the Liabilities.
9. Application of Proceeds of Collateral. If an Event of Default as
described herein has occurred and is continuing beyond any applicable grace or
cure period, then any proceeds of the Collateral received by Lender may be
applied by Lender to pay any or all of the costs of the following, in such order
as Lender may elect, subject to the requirements of the Lease as described in
Section 5 above: to the costs, expenses and attorney's fees incurred by Lender
for collection and for acquisition, protection, storage and sale of the
Collateral; to interest due upon the principal amount of the Liabilities; or to
the principal amount of the Liabilities.
10. Lender's Obligations. The Lender shall not be liable or responsible for
causing draws to be made under the Letter of Credit or causing the issuance of
any replacement Letter of Credit or for any other action, notice or proceeding
required in connection with or relating to the Letter of Credit or the
expiration of the Letter of Credit or the collection of the proceeds of the
Letter of Credit. All actions of Lender with respect to the Letters of Credit
shall be at Debtor's expense.
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11. Rights Cumulative. All rights, remedies, powers, and privileges of
Lender hereunder are cumulative and not alternative, and may be exercised
concurrently or seriatim, and are in addition to and not in lieu of any other
rights of Lender at law, in equity, under statute or under any other agreement
with Debtor.
12. Waivers. In addition to the other waivers contained herein and in any
other agreement between Debtor or Borrower and Lender (except as otherwise
reserved in the Loan Documents, or any modifications, extensions or renewals
thereof), Debtor and Borrower hereby expressly waive, to the extent permitted by
law: demand, protest, notice of protest, notice of default or dishonor, notice
of payments and nonpayments, or of any default, release, compromise, settlement,
extension or renewal of all commercial paper, instruments or guaranties at any
time held by Lender on which Debtor or Borrower may in any way be liable; and
notice of any action taken by Lender unless expressly required by this Agreement
or by law.
13. Indulgences Not Waivers. Neither the failure nor any delay on the part
of Lender to exercise any right, remedy, power or privilege hereunder shall
operate as a waiver thereof or give rise to any estoppel, nor be construed as an
agreement to modify the terms of this Agreement, nor shall any single or partial
exercise by Lender of any right, remedy, power or privilege preclude any other
or further exercise by Lender of the same or of any other right, remedy, power,
or privilege; nor shall any waiver by Lender of any right, remedy, power or
privilege with respect to any occurrence be construed as a waiver of such right,
remedy, power or privilege with respect to any other occurrence. No waiver by a
party hereunder shall be effective unless it is in writing and signed by the
party making such waiver, and then only to the extent specifically stated in
such writing.
14. Notices. All notices, requests, demands and other communications
required or permitted under this Agreement or by law shall be in writing and
shall be given in accordance with the notice provisions of the Deed to Secure
Debt.
The parties hereby agree that a notice sent as specified in this paragraph
at least five (5) business days before the date of any intended public sale or
the date after which any private sale or other intended disposition of the
Collateral is to be made by Lender shall be deemed to be reasonable notice of
such sale or other disposition; provided, however, that any such remedy taken
with respect to the Letter of Credit shall be subject to the terms of the Lease.
15. Definitions and Applicable Law. All terms used herein shall be defined
in accordance with the appropriate definitions appearing in the Uniform
Commercial Code as in force in the applicable jurisdiction and such definitions
are hereby incorporated herein by reference and made a part hereof. This
Agreement shall be governed in all respect by, and construed in accordance with,
the laws of the State of Georgia, including, without limitation, the Uniform
Commercial Code of the State of Georgia, all without regard to principles of
conflict of laws.
16. Entire Agreement; Amendments. This Agreement constitutes and expresses
the entire understanding between the parties hereto with respect to the subject
matter hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance or usage of the trade inconsistent with any of the terms
hereof. Neither this Agreement nor any portion or provision hereof may be
changed, altered, waived, modified, supplemented, discharged, cancelled,
terminated, or amended orally or in any manner other than by an agreement in
writing signed by the parties hereto.
17. Paragraph Headings. The paragraph headings in this Agreement are for
convenience of reference only; they form no substantive part of this Agreement
and shall not affect its interpretation.
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18. Severability. The provisions of this Agreement are independent of and
separable from each other. If any provision hereof shall for any reason be held
invalid or unenforceable, such invalidity or unenforceability shall not affect
the validity or enforceability of any other provision hereof, but this Agreement
shall be construed as if such invalid or unenforceable provision had never been
contained herein.
19. Successors and Assigns. The rights, remedies, powers, and privileges of
Lender hereunder shall inure to the benefit of the successors and assigns of
Lender, and the duties and obligations of Debtor and Borrower hereunder shall
bind the successors and assigns of Debtor and Borrower.
20. Term of Agreement. This Agreement shall continue in full force and
effect until all of the Liabilities have been satisfied in full and the Loan
Agreement has been terminated.
21. Miscellaneous. Time is of the essence of this Agreement. Lender may
assign, or sell participations in, its right, title and interest herein, in any
of the Liabilities, in the Collateral, and in any agreements or instruments now
or hereafter evidencing or securing any of the Liabilities, at any time or times
without notice to or the consent of Debtor or Borrower.
22. No Third Party Beneficiary. The terms of this Agreement (subject to
paragraph 19 above) are not intended to inure to the benefit of or create any
affirmative obligation to, any person or entity (including tenants) who is not a
party to this Agreement.
IN WITNESS WHEREOF, Debtor has caused this Agreement to be signed, sealed
and delivered as of the day and year first written above.
DEBTOR:
XXXXX RAVINIA, LLC,
a Delaware limited liability company
By: /S/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President;
[Seal]
LENDER:
METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By: /S/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
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EXHIBIT A
Certain Definitions
"Six Continents Lease" shall mean the Lease dated August 9, 1991, as
amended as set forth below, with the current tenant being Six Continents Hotels,
Inc., a Delaware corporation, successor-in-interest to Bass Hotels & Resorts,
Inc. (by corporate name change), which was successor-in-interest to Holiday
Hospitality Corporation (by corporate name change) which in turn was
successor-in-interest to Holiday Inns, Inc. and the current landlord being Xxxxx
Ravinia, LLC, as amended as follows:
1. Form of Tenant Construction Management Agreement 8-9-91
2. Tenant Waiver - First Right to Lease 8-16-91
3. Side letter 8-19-91
4. Memorandum of Lease 8-20-91
5. Side letter agreement (changed some dates
relating to base building construction) 10-29-91
6. First Amendment to Lease - storage space 6-12-92
7. First Amendment to Lease Agreement (twelve (12)
year lease for entire 19th floor) (terminated at 8.) 8-25-92
8. Lease Amendment Termination
(terminates First Amendment to Lease Agreement (7. above) 8-25-92
9. First Amendment to Lease Agreement
(exercise of expansion option for1/2of 19th floor - 12,706 sq. ft.) 3-24-93
10. Second Amendment to Lease Agreement
(five year lease for 10,000 sq. ft. on 12th floor
terminated per Cancellation Agreement (15. below) 11-17-93
11. Third Amendment to Lease Agreement
(five year lease for 5,167 sq. ft. on 12th floor
terminated per Cancellation Agreement (15. below) 7-15-94
12. Fourth Amendment to Lease Agreement(no copy)
(terminated per subsequent Letter Amendment ( 18. below) 7-15-94
13. Side letter (provided two additional reserved
parking spaces, incorporated into Seventh Amendment 8-24-94
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14. Fifth Amendment to Lease Agreement
(two month lease for part of the 17th floor) 9-15-94
15. Lease Cancellation Agreement
(Cancels 15,167 sq. ft. leases on 12th floor (10. and 11. above) 7-28-95
16. Sublease Agreement with Glaxo Wellcome, Inc.
(portion of 19th Floor 9,614 sq. ft.) (Term 4-1-96 to 3-31-01) 3-21-96
17. First Amendment to Sublease Agreement
(Extends sublease (16. above) to 3-31-04) 3-21-96
18. Side Letter (terminated the 17th floor space
taken in the Fourth Amendment (12. above) 1-17-96
19. Assignment and Assumption of Leases (Assigns leases from
Holiday Inns, Inc. to Holiday Hospitality Corporation) 4-25-97
20. Sixth Amendment to Lease Agreement
(lease for entire 15th floor (25,134 sq. ft.) until 3-31-04 10-7-98
21. Office Space License Agreement
(permission to use 4,313 sq. ft. on the 19th floor until 7-31-01) 7-14-00
22. Side Letter Agreement
(extends period of 19th floor License (21. above) until 7-31-02) 2-5-01
23. Comprehensive Lease Amendment 10-31-01
This Amendment as it relates to Office Tower [Floors 20-31]; Office Tower [15th
Floor]; and Office Tower [19th Floor], shall constitute the "Seventh Amendment
to Lease Agreement";
as it relates to the Lobby Lease, shall constitute the "First Amendment to Lease
Agreement";
as it relates to the Storage Space Lease, shall constitute the "Second Amendment
to Lease Agreement"; and
as it relates to the 19th Floor License, shall constitute the "First Amendment
to License Agreement of the 19th Floor License".
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"Six Continents Letter of Credit" shall mean Irrevocable Letter of Credit
dated January 28, 2002 (Credit No. ATL/F503180), issued by SunTrust Bank for the
account of Six Continents Hotels, Inc. for the benefit of Xxxxx Ravinia, LLC in
the face amount of $6,000,000.00.
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