Exhibit 10(y)
Georgia - Gwinnett County
Loan No. C-331971
C-332344
RECORDING REQUESTED BY
WHEN RECORDED MAIL TO
The Northwestern Mutual Life Ins. Co.
000 Xxxx Xxxxxxxxx Xxxxxx - Xx X00XX
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
SPACE ABOVE THIS LINE FOR RECORDER'S USE
--------------------------------------------------------------------------------
ABSOLUTE ASSIGNMENT OF LEASES AND RENTS
(With License Back)
THIS Absolute Assignment of Leases and Rents (this "Assignment") is
made as of the 6th day of December, 2001, by and between XXXXX EQUITY, INC., a
Florida corporation, whose mailing address is 000 Xxxxx Xxxx, Xxxxx 000, Xxxx
Xxxxx, Xxxxxxx 00000, (herein called "Borrower") and THE NORTHWESTERN MUTUAL
LIFE INSURANCE COMPANY, a Wisconsin corporation, whose mailing address is c/o
Real Estate Department, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000,
(herein called "Lender").
RECITALS
X. Xxxxxx has made loans to Borrower evidenced by (i) the Tranche A
Promissory Note dated as of December 16, 1996 executed by Xxxxxxxx for the
principal sum of ONE HUNDRED MILLION FIVE HUNDRED THOUSAND DOLLARS
($100,500,000.00), with final maturity no later than January 2, 2007 and with
interest as therein expressed and amended September 30, 1997, May 1, 1998, and
which is being amended concurrently herewith; (ii) the Tranche B Promissory Note
dated as of December 16, 1996 executed by Xxxxxxxx for the principal sum of
EIGHTY-NINE MILLION FIVE HUNDRED THOUSAND DOLLARS ($89,500,000.00), with final
maturity no later than January 2, 2009 and with interest as therein expressed,
which was amended August 11, 2000 and which is being amended concurrently
herewith; (iii) the Tranche C Promissory Note dated as of September 2, 1999
executed by Borrower for the principal sum of FOURTEEN MILLION SEVEN HUNDRED
THOUSAND DOLLARS ($14,700,000.00), with final maturity no later than January 1,
2007 and with interest as therein expressed and which is being amended
concurrently herewith; and (iv) the Tranche D Promissory Note dated as of
September 2, 1999 executed by Xxxxxxxx for the principal sum of THIRTY MILLION
THREE HUNDRED THOUSAND DOLLARS ($30,300,000.00), with final maturity no later
than January 1, 2009 and with interest as therein expressed and which is being
amended concurrently herewith (the Tranche A Promissory Note, the Tranche B
Promissory Note, the Tranche C Promissory Note, and the Tranche D Promissory
Note, as such instruments may be amended, restated, renewed and extended, are
hereinafter collectively referred to as the "Notes").
B. The Notes are secured by office buildings and unimproved sites located
in various counties and states, evidenced by security instruments of record as
follows:
(i) Master Lien Instrument Mortgage and Security Agreement dated December
19, 1996 securing the Notes; counterparts of which have been recorded
in (a) Official Records Book 8507, page 1224 of the public records of
Xxxxx County, Florida; (b) Official Records Book 1969, page 356 of the
public records of Xxxx County, Florida; (c) Official Records Book
5173, page 333 of the public records of Orange County, Florida; (d)
Official Records Book 9559, page 1088 of the public records of
Pinellas County, Florida; (e) as Instrument Number GG7415 in the
public records of Shelby County, Tennessee and that certain Deed of
Trust and Security Agreement dated August 18, 1997 recorded as
Instrument Number GV2951 in the public records of Shelby County,
Tennessee; (f) Greenville County, South Carolina; (g) El Paso County,
Texas; (h) Bexar County, Texas; and (i) Xxxxxx County, Texas; and
(ii) Master Lien Instrument Mortgage and Security Agreement dated September
2, 1999 securing the Notes, counterparts of which have been recorded
(a) in Official Records Book 9409, page 1320 of the public records of
Xxxxx County, Florida; (b) in Official Records Book R2295, page 932 of
the public records of Xxxx County, Florida; (c) in Official Records
Book 5838, page 71 of the public records of Orange County, Florida;
(d) in Official Records book 10670, page 1 of the public records of
Pinellas County, Florida; (e) as Instrument Number JS4479 in the
public records of Shelby County, Tennessee; (f) in the public records
of Greenville County, South Carolina; (g) El Paso County, Texas; and
(h) Xxxxxx County, Texas; and
(iii) IDB Deed of Trust and Security Agreement dated September 2, 1999
executed by The Industrial Development Board of the City of Memphis
and County of Shelby and Xxxxx Equity, Inc., securing Notes, recorded
as Instrument Number JS 4481 in the public records of Shelby County,
Tennessee, and Leasehold Deed of Trust and Security Agreement dated
September 2, 1999 executed by Xxxxx
Equity, Inc., securing the Notes, recorded as Instrument Number JS
4480 in the public records of Shelby County, Tennessee.
The foregoing instruments in (i) and (ii) above, as they may have been amended
prior to the date hereof, are collectively referred to as the "Existing Lien
Instruments." The foregoing instruments in (iii) above, as they may have been
amended prior to the date hereof, are collectively referred to as the "IDB Lien
Instruments."
D. The Loan Documents (as defined below) provide for release and
substitution of security; at the request of Xxxxxxxx, Xxxxxx has released
certain security and has agreed to release additional security and to accept
certain other properties (individually and collectively, the "New Security") in
substitution therefor, all as more completely described in the recitals to the
Master Loan Agreement between Borrower and Lender of even date herewith (the
"Master Loan Agreement").
E. Concurrently with closing the releases and substitutions, Borrower and
Lender have agreed (1) to create a Master Loan Agreement containing terms and
conditions governing future releases and substitutions, which will facilitate
Borrower's ability to release and substitute property and will comprehensively
identify the property which is the collateral for the Notes, (2) in the case of
New Security located in counties not covered by the Existing Lien Instruments,
Borrower will grant Lender first priority security interest on the New Security
by execution, delivery and recordation of security instruments ("New Security
Instruments"), (3) in the case of New Security located in the same counties as
some of the existing security, Borrower will grant Lender first priority
security interest on the New Security by spreading the security and effects of
the applicable Existing Lien Instruments to the New Security, and (4) to
consolidate the Existing Lien Instruments recorded in the applicable counties
and amend and restate them, to amend and restate the IDB Lien Instruments, and
amend certain of the other Loan Documents to incorporate the aforedescribed
changes, as necessary.
F. The New Security Instruments include that certain Deed to Secure Debt
and Security Agreement of even date herewith ("Gwinnett County Security
Instrument") granting Lender a first priority security interest on the property
described in Exhibit "A". In connection therewith, Xxxxxxxx is assigning to
Lender the leases and rents arising from said property, as set forth in detail
below.
W I T N E S S E T H
FOR AND IN CONSIDERATION of the indebtedness hereinafter described,
Xxxxxxxx has granted, bargained, sold and conveyed, and by these presents does
grant, bargain, sell and convey, unto Xxxxxx, its successors and assigns
forever, all and singular the property hereinafter described (collectively, the
"Security"), to wit:
(a) All rents, issues and profits now existing or hereafter arising from or
related to the land, situated in the County of Gwinnett and State of Georgia and
described in Exhibit "A" attached hereto and fully incorporated herein by
reference for all purposes and all improvements and any other property, whether
real, personal or mixed, located thereon (which land, improvements and other
property are hereinafter referred to individually, for each parcel identified on
the Exhibit, as a "Property" and collectively as the "Properties");
(b) All of Borrower's rights, titles, interests and privileges, as lessor,
in the leases now existing or hereafter made affecting the Property, whether or
not made by Borrower and as the same may have been, or may from time to time
hereafter be, modified, extended and renewed (hereinafter collectively called
the "Leases");
(c) Unless prohibited by applicable law, all tenant security deposits and
other amounts due and becoming due under the Leases;
(d) All guarantees of the Leases, including guarantees of tenant
performance;
(e) All insurance proceeds, including rental loss coverage and business
interruption coverage with respect to the Leases; and
(f) All judgments and settlements of claims in favor of Xxxxxxxx (including
condemnation proceeds, if any) and all rights, claims and causes of action under
any court proceeding, including without limitation any bankruptcy,
reorganization or insolvency proceeding, or otherwise arising from the Leases.
TO HAVE AND TO HOLD the Security unto Xxxxxx, its successors and assigns
forever, and Xxxxxxxx does hereby bind itself, its heirs, legal representatives,
successors and assigns, to warrant and forever defend the Security unto Xxxxxx,
its successors and assigns forever against the claim or claims of all persons
whomsoever claiming the same or any part thereof.
ARTICLE I
DEFINITIONS
1.01 Terms Defined Above. As used in this Assignment, the terms "Borrower",
"Leases", "Lender", "Property", "Properties", and "Security" shall have the
respective meanings indicated above.
1.02 Certain Definitions. The following terms shall have the meanings
assigned to them below whenever they are used in this Assignment, unless the
context clearly otherwise requires. Except where the context otherwise requires,
words in the singular form shall include the plural and vice versa.
"Event of Default" shall mean any Event of Default as defined in the
Gwinnett County Security Instrument.
"Master Lien Instrument" shall mean any of the following recorded in the
County: (i) the Existing Lien Instruments, as such instruments may be
consolidated, spread, amended, modified, extended or restated from time to time,
(ii) any of the New Security Instruments, including the Gwinnett County Security
Instrument, as they may be consolidated, spread, amended, modified extended or
restated from time to time, and (iii) the IDB Lien Instruments as they may be
consolidated, spread, amended, modified, extended or restated from time to time.
"Master Loan Agreement" is defined in Recital D., above.
"Loan Documents" shall have the same meaning as defined in the Master Lien
Instrument.
"Obligations" shall mean the following:
(a) The indebtedness evidenced by the Notes and all interest thereon;
(b) The performance of all covenants and agreements of Borrower contained
in the Loan Documents;
(c) All funds hereafter advanced by Lender to or for the benefit of
Borrower as contemplated by any covenant or provision contained in any Loan
Document and all interest thereon;
(d) All renewals, extensions, rearrangements and modifications of any of
the Obligations described hereinabove; and
(e) Any and all attorneys' fees and expenses of collection payable under
the terms of any Loan Document.
ARTICLE II
ASSIGNMENT
2.01 Absolute Assignment. This Assignment is, and is intended to be, an
absolute, unconditional, irrevocable, and present assignment, transfer and
conveyance of the Security from Borrower to Lender with a concurrent license
back to the Borrower (which license is subject to revocation upon the occurrence
of an Event of Default as herein provided) and it is understood that the
foregoing Assignment is absolute, outright,
and effective immediately, and is not intended as merely the granting of a
security interest relating to the Obligations.
2.02 License. Borrower is hereby granted the license to manage and control
the Security and to collect at the time of, but not prior to, the date provided
for the payment thereof, all rents, issues and profits from the Properties, all
security deposits and all judgments and settlements of claims (excluding
insurance loss and condemnation proceeds) in favor of Xxxxxxxx and to retain,
use and enjoy the same. The license created and granted hereby shall be
revocable upon the terms and conditions contained herein.
2.03 Revocation of License. Immediately upon the occurrence of an Event of
Default and at any time thereafter, Lender, without in any way waiving such
default, may, at its option and without regard to the adequacy of the security
for the Obligations, either by an authorized representative or agent, with or
without bringing or instituting any judicial or other action or proceeding, or
by a receiver appointed by a court, immediately revoke the license granted in
Section 2.02, as evidenced by a written notice to said effect given to Borrower,
and further, at Lender's option (without any obligation to do so), take
possession of any Property or all Properties and the Security and have, hold,
manage, lease and operate the Property or Properties and the Security on such
terms and for such period of time as Lender may deem proper, and, in addition,
either with or without taking possession of the Properties, demand, sue for or
otherwise collect and receive all rents, issues and profits from the Properties,
including those past due and unpaid, with full power to make, from time to time,
all alterations, renovations, repairs or replacements thereto or thereof as may
seem proper to the Lender in its sole discretion, and to apply (in such order
and priority as Lender shall determine in its sole discretion, any statute, law,
custom or use to the contrary notwithstanding) such rents, issues and profits to
the payment of:
(a) all expenses of (i) managing the Properties, including without implied
limitation, the salaries, fees and wages of a managing agent and such other
employees as Lender may in its sole discretion deem necessary or desirable, (ii)
operating and maintaining the Properties, including without implied limitation,
all taxes, charges, claims, assessments, water rents, sewer rents and any other
liens, and premiums for all insurance which Lender may in its sole discretion
deem necessary or desirable, (iii) the cost of any and all alterations,
renovations, repairs or replacements of or to the Properties, and (iv) any and
all expenses incident to taking and retaining possession of the Property or
Properties and the Security; and
(b) the Obligations.
The exercise by Xxxxxx of the rights granted it in this Section 2.03, and the
collection and receipt of rents, issues and profits and the application thereof
as herein provided, shall not be considered a waiver of any Event of Default.
2.04 Trust Funds. All monies or funds covered by this Assignment paid to,
or for the benefit of, Borrower after an Event of Default are hereby declared,
and shall be deemed to be, trust funds in the hands of Borrower for the sole
benefit of Lender, until all Events of Default have been cured or waived or the
Obligations have been paid and performed in full. Borrower, or any officer,
director, representative or agent thereof receiving such trust funds or having
control or direction of same, is hereby made and shall be construed to be a
trustee of such trust funds so received or under its control and direction, and
such person shall be under a strict obligation and duty should such persons
receive or constructively receive trust funds to (1) remit any and all such
trust funds to Lender within twenty-four (24) hours of receipt, upon demand
therefor by Lender or (2) to apply such trust funds only to Obligations then due
or the operating expenses of the Properties.
ARTICLE III
COVENANTS, REPRESENTATIONS AND WARRANTIES
3.01 Liability. Lender shall not be liable for any loss sustained by
Borrower resulting from Xxxxxx's failure to let the Properties after an Event of
Default or from any other act or omission of Lender in managing the Properties
or the Security after an Event of Default, except for acts constituting gross
negligence or willful misconduct. Lender shall not be obligated to perform or
discharge, nor does Lender hereby undertake to perform or discharge, any
obligation, duty or liability under any Lease or under or by reason of this
Assignment, and Borrower shall and does hereby indemnify Lender for, and save
and hold Lender harmless from, any and all liability, loss or damages, except so
much thereof as shall result from the gross negligence or willful misconduct of
Lender, which may or might be incurred under any Lease or under or by reason of
this Assignment and from any and all claims and demands whatsoever which may be
asserted against Lender by reason of any alleged obligation or undertaking on
its part to perform or discharge any of the terms, covenants or agreements
contained in any Lease, including without implied limitation, any claims by any
tenants of credit for rents for any period paid to and received by Borrower but
not delivered to Lender. Should Lender incur any such liability under any Lease,
under or by reason of this Assignment or in defense of any such claim or demand,
the amount thereof, including without implied limitation all costs, expenses and
attorneys' fees, shall be added to the principal of the Notes and Xxxxxxxx shall
reimburse Lender therefor immediately upon demand. This Assignment shall not
operate to place responsibility upon Lender for the control, care, upkeep,
management, operation or repair of the Properties and the Security or for the
carrying out of any of the terms and conditions of any Lease; nor shall this
Assignment operate to make Lender responsible or liable for any waste committed
on the Properties by the tenants or any other party, for any dangerous or
defective condition of the Properties or for any negligence in the control,
care, upkeep, operation, management or repair of the Properties resulting in
loss or injury or death to any tenant, licensee, employee, stranger or other
person whatsoever.
3.02 Termination. Upon payment and performance of the Obligations in full,
this Assignment shall become null and void and of no further legal force or
effect, but the affidavit, certificate, letter or statement of any officer,
agent, authorized representative or attorney of Lender showing any part of the
Obligations remaining unpaid or unperformed shall be and constitute conclusive
evidence of the validity, effectiveness and continuing force of this Assignment
upon which any person may, and is hereby authorized to, rely. Borrower hereby
authorizes and directs all tenants under the Leases, all guarantors of Leases,
all insurers providing rental loss or business interruption insurance with
respect to the Properties, all governmental authorities and all other occupants
of the Properties, upon receipt from Lender of written notice to the effect that
Lender is then the holder of the Notes and that an Event of Default exists, to
pay over to Lender all rents and other amounts due and to become due under the
Leases and under guaranties of the Leases and all other issues and profits from
the Properties and to continue so to do until otherwise notified in writing by
Xxxxxx. This right may be exercised without Lender taking actual or constructive
possession of the Properties or any part thereof.
3.03 Security. Lender may take or release any security for the payment or
performance of the Obligations, may release any party primarily or secondarily
liable therefor and may apply any security held by it to the satisfaction of all
or any portion of the Obligations, without prejudice to any of its rights under
this Assignment, the other Loan Documents or otherwise available at law or in
equity.
3.04 Covenants. Borrower covenants with Lender (a) to observe and perform
all material obligations imposed upon the lessor under all Leases and not to do
or permit to be done anything to impair the same without Xxxxxx's prior written
consent, provided, however, this subsection (a) shall only apply to leases of
10,000 or more square feet unless Borrower has acted or failed to act in such a
way as to cause a breach of the lessor's obligations in 25% or more of the
Leases (by number of leases then in effect and not by square footage) then in
effect at within any Pool (as defined in the Master Loan Agreement) in which
case, Borrower shall be in default under this subsection (a); (b) not to collect
any of the rent or other amounts due under any Lease or other issues or profits
from the Properties in any manner in advance of the time when the same shall
become due (save and except only for collecting two months' rent in advance plus
the security deposit, if any, at the time of execution of a Lease); (c) not to
execute any other assignment of rents, issues or profits arising or accruing
from the Leases or from the Properties; (d) with respect to leases of 10,000 or
more square feet, not to enter into any lease agreement affecting the
Properties, except those leases entered into in the ordinary course of business
and utilizing Borrower's standard form lease previously approved by Lender, with
no substantial modifications thereto, without the prior written consent of
Lender, which consent or denial will be given by Lender within five (5) business
days of receipt of said Lease for consideration by Xxxxxx; (e) to execute and
deliver, at the request of Lender, all such further assurances and
acknowledgments of the assignment contained herein and the other provisions
hereof, with respect to specific Leases or otherwise, as Lender shall from time
to time require; (f) to use reasonable efforts to
obtain from any tenant at the Properties, from time to time as requested by
Xxxxxx, estoppel certificates, in form and substance satisfactory to Lender,
confirming the terms of such tenant's Lease and the absence of default
thereunder; and (g) with respect to leases of 10,000 or more square feet, not to
cancel, surrender or terminate any Lease, exercise any option which might lead
to such termination or consent to any change, modification, or alteration
thereof, to the release of any party liable thereunder or to the assignment of
the lessee's interest therein, except as is consistent with the usual and
customary operation of the Properties, without the prior written consent of
Lender, which consent or denial will be given by Xxxxxx within five (5) business
days of receipt of said Lease for consideration by Xxxxxx, and any of said acts,
if done without the prior written consent of Lender, shall be null and void.
3.05 Authority to Assign. Borrower represents and warrants that (a)
Borrower has full right and authority to execute this Assignment and has no
knowledge of any existing defaults under any of the existing Leases, (b) all
conditions precedent to the effectiveness of said existing Leases have been
satisfied, (c) Borrower has not executed or granted any modification of the
existing Leases, either orally or in writing, (d) the existing Leases are in
full force and effect according to the terms set forth in the lease instruments
heretofore submitted to Lender and (e) Borrower has not executed any other
instrument which might prevent Lender from operating under any of the terms and
conditions of this Assignment, including any other assignment of the Leases or
the rents, issues and profits from the Properties.
3.06 Cross-Default. Violation or default under any of the covenants,
representations, warranties and provisions contained in this Assignment by the
Borrower shall be deemed a default hereunder as well as under the terms of the
other Loan Documents, and any default thereunder shall likewise be a default
under this Assignment. Any default by Borrower under any of the terms of any
Lease shall be deemed a default hereunder and under the terms of the other Loan
Documents, and any expenditures made by Lender in curing such default on
Borrower's behalf, with interest thereon at the Default Rate (as defined in the
Notes), shall become part of the Obligations.
3.07 No Mortgagee in Possession. The acceptance by Lender of this
Assignment, with all of the rights, powers, privileges and authority created
hereby, shall not, prior to entry upon and taking possession of the Properties
by Xxxxxx, be deemed or construed to constitute Lender a "mortgagee in
possession", or hereafter or at any time or in any event obligate Lender to
appear in or defend any action or proceeding relating to any Lease, the
Properties or the Security, to take any action hereunder, to expend any money,
incur any expense, perform or discharge any obligation, duty or liability under
any Lease, or to assume any obligation or responsibility for any security
deposits or other deposits delivered to Borrower by any tenant and not actually
delivered to Lender. Lender shall not be liable in any way for any injury or
damage to any person or property sustained in or about the Properties.
ARTICLE IV
GENERAL
4.01 Remedies. The rights and remedies provided Lender in this Assignment
and the other Loan Documents are cumulative. Nothing contained in this
Assignment, and no act done or omitted by Lender pursuant hereto, including
without implied limitation the collection of any rents, shall be deemed to be a
waiver by Lender of any of its rights and remedies under the other Loan
Documents or applicable law or a waiver of any default under the other Loan
Documents, and this Assignment is made and accepted without prejudice to any of
the rights and remedies provided Lender by the other Loan Documents. The right
of Lender to collect the principal sum and interest due on the Notes and to
enforce the other Loan Documents may be exercised by Xxxxxx either prior to,
simultaneously with, or subsequent to any action taken by it hereunder.
4.02 Notices. Any notice or demand hereunder shall be in writing, may be
delivered personally or sent by certified mail with postage prepaid, by
reputable courier service with charges prepaid, by telecopier or by such other
method whereby the receipt thereof may be confirmed. Any notice or demand sent
to Borrower by certified mail or reputable courier service shall be addressed to
Borrower at the address set forth above or such other address in the United
States of America as Borrower shall designate in a notice to Lender given in the
manner described herein. Any notice sent to Borrower by telecopier shall be
telecopied to 000-000-0000 or to such other telecopier number in the United
States of America as shall be designated in a notice given to Lender in the
manner described herein. Any notice sent to Lender shall be addressed to the
attention of the Real Estate Investment Department at 000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 and shall refer to the Loan No. set forth above and, if
telecopied, shall be telecopied to 414/665-1557 or at such other address or
telecopier number as Lender shall designate in a notice given in the manner
described herein. Any notice or demand sent hereunder by telecopier shall also
be sent by certified mail or reputable courier service. Any notice or demand
hereunder shall be deemed given when received. Any notice or demand which is
rejected, the acceptance of delivery of which is refused or which is incapable
of being delivered for any reason whatsoever at the address or telecopier number
specified herein or such other address or telecopier number designated pursuant
hereto shall be deemed received as of the date of attempted delivery.
4.03 Appointment. Borrower irrevocably appoints Lender its true and lawful
attorney in fact, which appointment is coupled with an interest, to execute any
or all of the rights or powers described herein with the same force and effect
as if executed by Xxxxxxxx, and Borrower ratifies and confirms any and all acts
done or omitted to be done by Xxxxxx, its agents, servants, employees or
attorneys in, to or about the Property.
4.04 Captions. The titles and headings of the various Articles and Sections
hereof are intended solely for reference and are not intended to modify, explain
or affect the meaning of the provisions of this Assignment.
4.05 Severability. If any of the provisions of this Assignment or the
application thereof to any persons or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Assignment, and the application
of such provision or provisions to persons or circumstances other than those as
to whom or which it is held invalid or unenforceable, shall not be affected
thereby, and every provision of this Assignment shall be valid and enforceable
to the fullest extent permitted by law.
4.06 Attorneys' Fees. In the event of any controversy, claim, dispute, or
litigation between the parties hereto to enforce any provision of this
Assignment or any right of Lender hereunder, Xxxxxxxx agrees to pay to Lender
all costs and expenses, including reasonable attorneys' fees incurred therein by
Xxxxxx, whether in preparation for or during any trial, as a result of an appeal
from a judgment entered in such litigation or otherwise.
4.07 Amendments. This Assignment may not be modified, amended or otherwise
changed in any manner unless done so by a writing executed by the parties
hereto.
4.08 Benefits. This Assignment and all the covenants, terms and provisions
contained herein shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, successors and
assigns.
4.09 Assignment. Borrower shall have no right to assign or transfer the
revocable license granted herein. Any such assignment or transfer shall
constitute a default.
4.10 Time of Essence. Time is of the essence of this Assignment.
4.11 Governing Law. The laws of the State named in the upper left-hand
corner of this Assignment shall govern and control the interpretation of this
Assignment and the rights, obligations, duties and liabilities of the parties
hereto.
4.12 Limitation of Liability. Notwithstanding any provision contained in
this Assignment, the personal liability of Borrower shall be limited as provided
in the Notes.
(remainder of page intentionally left blank)
IN WITNESS WHEREOF this Assignment has been entered into as of the day and
year first-above written.
BORROWER:
Signed, sealed and delivered XXXXX EQUITY, INC., a Florida
in the presence of: corporation
s/Xxxxxx X. Xxxxxxx By: s/Xxxxxx Xxxxxxxxx
------------------------------------ -------------------------------------
Witness Xxxxxx X. Xxxxxxx Xxxxxx Xxxxxxxxx
--------------------------- -------------------------------------
s/Xxxxx X. Xxxx
---------------------------
Notary Public
Miami-Dade County, Florida
My commission expires: October 30, 2003
My Commission # CC 850933
(corporate seal)
(signatures continued on next page)
LENDER:
THE NORTHWESTERN MUTUAL
LIFE INSURANCE COMPANY, a
Wisconsin corporation
By: Northwestern Investment
Management Company, LLC, a
Delaware limited liability
company, its wholly-owned
affiliate and authorized
representative
Signed, sealed and delivered in the
presence of:
s/ Xxxxx X. Xxxxxx By: s/Xxxxxx X. Xxxxx
------------------------------------ -----------------------------
Xxxxx X. Xxxxxx (Witness) Xxxxxx X. Xxxxx,
Managing Director
s/Xxxxx X. Xxxxxxxxx Attest: s/Xxxxxx x. Xxxxx
------------------------------------ -----------------------------
Xxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxx,
Notary Public Assistant Secretary
Milwaukee County, Wisconsin
My commission expires: May 19, 2004
(corporate seal)
This instrument was prepared by Xxxxx X. Xxxxx, Attorney, for The Northwestern
Mutual Life Insurance Company, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
EXHIBIT "A"
Description of Property located in the
County of Gwinnett, State of Georgia
Gwinnett Building
0000 Xxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx
LOT 1, BLOCK A:
ALL THAT TRACT OR PARCEL OF LAND, lying and being in Land Lot 204 of the 6th
Land District of Gwinnett County, Georgia, being more particularly described as
follows:
BEGINNING at an iron pin set at the western end of the mitre line at the
intersection of the northeastern right-of-way line of Pleasant Hill Road
(right-of-way width varies), and the northwestern right-of-way line of Xxxxx
Boulevard (right-of-way width varies); run thence along said right-of-way line
of Pleasant Hill Road North 29 degrees 59 minutes 00 seconds West a distance of
405.19 feet to an iron pin set; thence leaving said right-of-way line run North
60 degrees 33 minutes 56 seconds East a distance of 215.28 feet to a #4 rebar
found; run thence South 21 degrees 03 minutes 09 seconds East a distance of
65.10 feet to a #4 rebar found; run thence North 67 degrees 54 minutes 47
seconds East a distance of 239.87 feet to a #4 rebar found; run thence North 62
degrees 06 minutes 25 seconds East a distance of 62.52 feet to a #4 rebar found;
run thence South 23 degrees 45 minutes 31 seconds East a distance of 142.76 feet
to a point; run thence South 25 degrees 57 minutes 40 seconds East a distance of
261.26 feet to a #4 rebar found on the northwestern right-of-way line of Xxxxx
Boulevard; run thence along said right-of-way line the following courses and
distances: along an arc to the left an arc distance of 45.51 feet to a point,
(said arc having a radius of 510.00 feet and being subtended by a chord bearing
South 75 degrees 28 minutes 19 seconds West a distance of 45.50 feet); South 78
degrees 01 minute 43 seconds West a distance of 120.00 feet to a point; along a
curve to the left an arc distance of 192.65 feet to a point, (said arc having a
radius of 610.00 feet and being subtended by a chord bearing South 68 degrees 58
minutes 51 seconds West a distance of 191.85 feet); South 59 degrees 56 minutes
00 seconds West a distance of 103.95 feet to an iron pin set at the eastern end
of the aforesaid mitre line; run thence along said mitre line, North 75 degrees
01 minute 30 seconds West a distance of 28.26 feet to the iron pin set at the
POINT 0F BEGINNING.
LOT 1A, BLOCK A:
ALL THAT TRACT OR PARCEL OF LAND, lying and being in Land Lot 204 of the 6th
Land District of Gwinnett County, Georgia, being more particularly described as
follows:
EXHIBIT "A" continued
BEGINNING at a point at the southern end of the mitre line at the intersection
of the northeastern right-of-way line of Pleasant Hill Road (right-of-way width
varies), and the southeastern right-of-way line of Xxxxx Boulevard (right-of-way
width varies); run thence North 14 degrees 42 minutes 54 seconds East along said
mitre line a distance of 28.18 feet to a point; run thence along said
right-of-way line of Xxxxx Boulevard the following courses and distances: North
59 degrees 56 minutes 00 seconds East a distance of 105.58 feet to a point;
along a curve to the right an arc distance of 161.07 feet to a point, (said arc
having a radius of 510.00 feet and being subtended by a chord bearing North 68
degrees 58 minutes 51 seconds East a distance of 160.40 feet); North 78 degrees
01 minute 43 seconds East a distance of 120.00 feet to a point; along a curve to
the left an arc distance of 52.14 feet to a point, (said arc having a radius of
610.00 feet and being subtended by a chord bearing North 75 degrees 34 minutes
49 seconds East a distance of 52.12 feet); thence leaving said right-of-way line
run South 30 degrees 17 minutes 37 seconds East a distance of 16.67 feet to a
point; run thence South 59 degrees 42 minutes 23 seconds West a distance of
186.00 feet to a point; run thence South 85 degrees 14 minutes 00 seconds West a
distance of 57.63 feet to a point; run thence South 72 degrees 35 minutes 00
seconds West a distance of 88.28 feet to a point; run thence South 59 degrees 56
minutes 00 seconds West a distance of 123.68 feet to a point on the northeastern
right-of-way line of Pleasant Hill Road; run thence North 30 degrees 30 minutes
12 seconds West along said right-of-way line a distance of 30.00 feet to a point
at the southern end of the aforesaid mitre line and the POINT OF BEGINNING.
Said parcels being shown on and described according to that certain survey
entitled "Boundary/AsBuilt Survey of The Gwinnett Building for Xxxxx Equity,
Inc." prepared by Xxxxxxxx Engineering, Inc., bearing the seal and certification
of Cleveland X. Xxxxxxxx, Xx., Georgia Registered Land Surveyor No. 1704, dated
_________, 2001.
TOGETHER WITH easements appurtenant to the above described tract of land created
by the following:
1. Drainage, Slope and Landscape Easement from Pleasant Hill Baptist Church of
Duluth, Inc., a Georgia corporation, to Xxxxx Properties, Inc., a Florida
corporation, dated June 30, 1989, filed for record September 11, 1989 at
9:00 a.m., recorded in Deed Book 5651, page 267, Records of Gwinnett
County, Georgia.
2. Declaration of Easements and Restrictive Covenants by Xxxxx Properties,
Inc., dated May 28, 1993, filed for record June 30, 1993 at 4:46 p.m.,
recorded in Deed Book 8967, Page 140, aforesaid Records.
EXHIBIT "A" continued
Clarkson Building
0000 Xxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx
ALL THAT TRACT OR PARCEL OF LAND, lying and being in Land Lot 204 of the 6th
Land District of Gwinnett County. Georgia, being more particularly described as
follows:
TO FIND THE POINT BEGINNING, commence at a point at the western end of the mitre
line at the intersection of the northeastern right-of-way line of Pleasant Hill
Road (right-of-way width varies), and the northwestern right-of-way line of
Xxxxx Boulevard (100-foot right-of-way); run thence South 75 degrees 01 minute
30 seconds East along said mitre line, a distance of 28.26 feet to a point at
the eastern end of said mitre line; run thence along the northwestern
right-of-way line of Xxxxx Boulevard the following courses and distances: North
59 degrees 56 minutes 00 seconds East 103.95 feet to a point; along the arc of a
curve to the right an arc distance of 192.65 feet to a point (said arc having a
radius of 610.00 feet and being subtended by a chord bearing North 68 degrees 58
minutes 51 seconds East a distance of 191.85 feet); North 78 degrees 01 minute
43 seconds East 120.00 feet to a point; along the arc of a curve to the left an
arc distance of 45.51 feet to a #4 rebar found at the POINT OF BEGINNING; (said
arc having a radius of 510.00 feet and being subtended by a chord bearing North
75 degrees 28 minutes 19 seconds East a distance of 45.50 feet); from the POINT
OF BEGINNING as thus established, leaving said right-of-way line of Xxxxx
Boulevard, run thence North 25 degrees 57 minutes 40 seconds West a distance of
261.26 feet to a point; run thence North 23 degrees 45 minutes 31 seconds West a
distance of 142.76 feet to a #4 rebar found; run thence North 62 degrees 06
minutes 25 seconds East a distance of 17.95 feet to a #4 rebar found; run thence
North 60 degrees 55 minutes 55 seconds East a distance of 429.91 feet to an iron
pin set; run thence South 29 degrees 00 minutes 43 seconds East a distance of
405.99 feet to a #4 rebar set on the northwestern right-of-way line of Xxxxx
Boulevard; run thence along said right-of-way line South 59 degrees 42 minutes
23 seconds West a distance of 358.12 feet to a point; continue thence along the
arc of a curve to the right in said right-of way line an arc distance of 117.57
feet to the #4 rebar found at the POINT OF BEGINNING; (said arc having a radius
of 510.00 feet and being subtended by a chord bearing South 66 degrees 18
minutes 39 seconds West a distance of 117.31 feet) said parcel being shown on
and described according to that certain survey entitled "Boundary/AsBuilt Survey
of The Clarkston Building for Xxxxx Equity, Inc." prepared by Xxxxxxxx
Engineering, Inc., bearing the seal and certification of Cleveland X. Xxxxxxxx,
Xx., Georgia Registered Land Surveyor No. 1704, dated _____, 2001.
TOGETHER WITH easements appurtenant to the above described tract of land created
by the following:
1. Drainage, Slope and Landscape Easement from Pleasant Hill Baptist Church of
Duluth, Inc., a Georgia corporation, to Xxxxx Properties, Inc., a Florida
corporation, dated June 30, 1989, filed for record September 11, 1989 at
9:00 a.m., recorded in Deed Book 5651, Page 267, Records of Gwinnett
County, Georgia.
EXHIBIT "A" continued
2. Declaration of Easements and Restrictive covenants by Xxxxx Properties,
Inc., dated May 28, 1993, filed for record June 30, 1993 at 4:46 p.m.,
recorded in Deed Book 8967, Page 140, aforesaid Records.
Duluth Building
00000 Xxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx
ALL THAT TRACT OR PARCEL OF LAND, lying and being in Land Lot 204 of the 6th
Land District of Gwinnett County, Georgia, being more particularly described as
follows:
BEGINNING at the southern end of the mitre line at the intersection of the
northwestern right-of-way line of Xxxxx Boulevard (variable width right-of-way),
and the southwestern right-of-way line of Centerview Boulevard (variable width
right-of-way); run thence along the right-of-way line of Xxxxx Boulevard the
following courses and distances: South 59 degrees 42 minutes 23 seconds West a
distance of 248.74 feet to a point; South 3 degrees 17 minutes 37 seconds East a
distance of 12.00 feet to a point; South 59 degrees 42 minutes 23 seconds West a
distance of 284.54 feet to an iron pin set; thence leaving said right-of-way
line run North 29 degrees 00 minutes 43 seconds West a distance of 405.99 feet
to an iron pin set; run thence South 60 degrees 55 minutes 55 seconds West a
distance of 69.91 feet to a #4 rebar found; run thence North 29 degrees 12
minutes 45 seconds West a distance of 125.49 feet to a #4 rebar found; run
thence North 60 degrees 10 minutes 07 seconds East a distance of 227.96 feet to
an iron pin set; run thence along the arc of a curve to the left an arc distance
of 188.09 feet to an iron pin set (said arc having a radius of 1539.89 feet and
being subtended by a chord bearing North 56 degrees 40 minutes 10 seconds East a
distance of 187.97 feet); run thence North 53 degrees 10 minutes 13 seconds East
a distance of 168.00 feet to an iron pin set on the southwestern right-of-way
line of Centerview Boulevard; run thence along said right-of-way line the
following courses and distances: South 38 degrees 50 minutes 02 seconds East a
distance of 42.69 feet to a point; along the arc of a curve to the right an arc
distance of 52.36 feet to a point (said arc having a radius of 1083.90 feet and
being subtended by a chord bearing South 37 degrees 27 minutes 00 seconds East a
distance of 52.35 feet); North 53 degrees 56 minutes 01 second East a distance
of 12.00 feet to a point; along the arc of a curve to the right an arc distance
of 110.41 feet to a point (said arc having a radius of 1095.90 feet and being
subtended by a chord bearing South 33 degrees 10 minutes 48 seconds East a
distance of 110.37 feet); South 30 degrees 17 minutes 37 seconds East a distance
of 323.71 feet to a point at the north end of the aforesaid mitre; run thence
along said mitre line South 14 degrees 42 minutes 23 seconds West a distance of
30.00 feet to the POINT OF BEGINNING; said parcel being shown
EXHIBIT "A" continued
on and described according to that certain survey entitled
"Boundary/AsBuilt Survey of The Duluth Building for Xxxxx Equity, Inc." prepared
by Xxxxxxxx Engineering, Inc., bearing the seal and certification of Cleveland
X. Xxxxxxxx, Xx., Georgia Registered Land Surveyor No. 1704, dated______ , 2001.
TOGETHER WITH easements appurtenant to the above described tract of land created
by that certain Declaration of Easements and Restrictive Covenants by Xxxxx
Properties, Inc., dated May 28, 1993, filed for record June 30, 1993 at 4:46
p.m., recorded in Deed Book 8967, Page 140, Records of Gwinnett County, Georgia.
