EXHIBIT 10.4
THIS DOCUMENT PREPARED BY AND
RECORDING REQUESTED BY AND WHEN
RECORDED MAIL TO:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
ASSIGNMENT OF LEASES AND RENTS
Dated and effective as of June __, 1998
between
[______________________________________],
a Delaware [________________________]
as Assignor,
and
NOMURA ASSET CAPITAL CORPORATION,
a Delaware corporation,
as Assignee
THIS ASSIGNMENT OF LEASES AND RENTS (this "ASSIGNMENT") dated and
effective as of the _____ day of June, 1998 made by [
], a _______________________ duly organized under the
laws of the State of __________________, having an office c/o Horizon Group
Properties, Inc., 0000 Xxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx 00000 ("ASSIGNOR")
to NOMURA ASSET CAPITAL CORPORATION, a corporation organized under the laws of
the State of Delaware, having an office at Two World Xxxxxxxxx Xxxxxx,
Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000-0000 ("ASSIGNEE").
W I T N E S S E T H:
WHEREAS, Assignor is the owner of a fee simple title (1) to that
certain parcel of real property (the "PREMISES") described in EXHIBIT A attached
hereto, together with the buildings, structures, fixtures, additions,
enlargements, extensions, modifications, repairs, replacements and other
improvements now or hereafter located thereon (collectively, the "PROPERTY");
WHEREAS, Assignee, Assignor and certain other entities affiliated with
Assignor (such affiliated entities and Assignor each being referred to
individually as a "BORROWER" and collectively as the "BORROWERS") have entered
into a certain Loan Agreement dated as of the date hereof (as amended, modified,
restated, consolidated or supplemented from time to time, the "LOAN AGREEMENT")
pursuant to which Assignee has agreed to make a secured mortgage loan to the
Borrowers.
WHEREAS, pursuant to the Loan Agreement, Assignee is making a Loan to
the Borrowers in the aggregate original principal amount of $
(the "LOAN") and the Borrowers have executed a promissory note in the principal
amount of $ (as the same may be amended, modified, restated,
severed, consolidated, renewed, replaced, or supplemented from time to time, the
"NOTE"). The Note is secured by, INTER ALIA, that certain mortgage or deed of
trust, assignment of leases and rents and security agreement (as amended from
time to time, the "MORTGAGE") on the Premises and Property.
WHEREAS, it is a condition to the obligation of the Assignee to make
the Loan to the Borrowers pursuant to the Loan Agreement that Assignor execute
and deliver this Assignment;
WHEREAS, Assignor and Assignee contemplate that Assignee's interest in
and to, INTER ALIA, the Loan, the Note and this Assignment may be assigned by
Assignee to a trustee for the benefit of all holders of the Securities issued in
connection with the Securitization;
WHEREAS, this Assignment is being given as additional security for the
Loan; and
WHEREAS, capitalized terms used in this Assignment without definition
have the respective meanings assigned to such terms in the Loan Agreement or the
Mortgage as the case may be, the terms of each of which are specifically
incorporated by reference herein.
NOW, THEREFORE, for good and valuable consideration, receipt of which
by the parties hereto is hereby acknowledged, and additionally for the purpose
of additionally securing the Debt, Assignor hereby assigns, transfers, conveys
and sets over unto the Assignee, all right, title and interest of Assignor in
and to (i) all Leases (as hereinafter defined) and (ii) all Rents (as
hereinafter defined);
-----------------------------------
(1) Revise for leasehold properties.
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TO HAVE AND TO HOLD the same unto the Assignee, and its successors and
assigns forever, upon the terms and conditions and for the uses hereinafter set
forth.
And Assignor hereby further agrees as follows:
Section 1. DEFINITIONS.
As used herein, the following terms shall have the following meanings:
(a) "LEASES" shall mean any and all leases, or, to the extent of the
interest therein of Assignor, subleases or sub-subleases, lettings, licenses,
concessions or other agreements (whether written or oral and whether now or
hereafter in effect) pursuant to which any person is granted a possessory
interest in, or right to use or occupy all or any portion of the Property, and
every modification, amendment or other agreement relating to such lease,
sublease, sub-sublease or other agreement entered into in connection with such
lease, sublease, sub-sublease, or other agreement and every guarantee of the
performance and observance of the covenants, conditions and agreements to be
performed and observed by the other party thereto.
(b) "RENTS" shall mean all rents, rent equivalents, monies payable as
damages or in lieu of rent or rent equivalents, royalties (including all oil and
gas or other mineral royalties and bonuses), income, receivables, receipts,
revenues, deposits (including security, utility and other deposits), accounts,
cash, issues, profits, proceeds, charges for services rendered, and other
consideration of whatever form or nature received by or paid to or for the
account of or benefit of Assignor or its agents or employees from any and all
sources arising from or attributable to the Property, including all receivables,
customer obligations, installment payment obligations and other obligations now
existing or hereafter arising or created out of the sale, lease, sublease,
license, concession or other grant of the right of the use and occupancy of the
Property and proceeds, if any, from business interruption or other loss of
income insurance.
Section 2. CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS.
Assignor represents, warrants and covenants to the Assignee that:
(a) The payment of the Rents to accrue under any Lease will not be
waived, released, reduced, discounted or otherwise discharged or compromised by
Assignor except as permitted in the Loan Agreement. Assignor waives any rights
of set off against any tenant under any Lease. Assignor agrees that it will not
assign any of the Rents except to a purchaser or grantee of the Property
permitted under the Loan Agreement;
(b) Assignor has not performed, and will not perform, any acts, and
has not executed, and will not execute, any instrument that would prevent
Assignee from exercising its rights under this Assignment; and
(c) Assignor hereby authorizes and directs any tenant under any of
the Leases and any successor to all or any part of the interests of any such
tenant to pay directly to the Collection Account Bank, in accordance with the
terms of the Collection Account Agreement, the Rents due and to become due under
the Leases and such authorization and direction shall be sufficient warrant to
the tenant to make future payments of Rents directly to the Collection Account
in accordance with the terms of the Collection Account Agreement without the
necessity for further consent by the Assignor.
Section 3. DEFERRED EXERCISE OF RIGHTS.
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(a) As part of the consideration for the indebtedness evidenced by
the Note, Assignor does hereby absolutely and unconditionally assign to Assignee
all right, title and interest of Assignor in and to all present and future
Leases and Rents, and this Assignment constitutes a present and absolute
assignment and is intended to be unconditional and not as an assignment for
additional security only. It is further intended that it not be necessary for
Assignee to institute legal proceedings, absent any requirements of law or
regulation to the contrary, to enforce the provisions hereof. Assignor hereby
authorizes Assignee or its agents to collect the aforesaid Rents in accordance
with the terms of the Cash Collateral Account Agreement and hereby directs each
tenant of the Property to pay such Rents directly to the Collection Account, in
accordance with the terms of the Cash Collateral Account Agreement; provided,
however, that so long as no Event of Default by Assignor hereunder or under any
of the other Loan Documents then exists, Assignor shall have a license (i) to
collect all of the Rents so long as Assignor shall cause all such Rents
collected to be deposited directly into the Collection Account in accordance
with the terms of the Loan Agreement; and (ii) to otherwise deal with, and enjoy
the rights of the lessor under, the Leases or in each of the foregoing cases, as
otherwise permitted by the Loan Agreement and other Loan Documents.
(b) Upon the occurrence and during the continuance of an Event of
Default, and without the necessity of Assignee entering upon and taking and
maintaining full control of the Property in person, by agent or by
court-appointed receiver, the license referred to in paragraph (a) above
shall immediately be revoked and Assignee shall have the right at its option,
to exercise all rights and remedies contained in the Loan Agreement or any of
the other Loan Documents, or otherwise available at law or in equity, except
as such right may be limited therein.
(c) Any Rents held or received by Assignor at any time shall be
deposited directly into the Collection Account in accordance with the terms of
the Loan Agreement.
Section 4. EFFECT ON RIGHTS UNDER OTHER DOCUMENTS.
Nothing contained in this Assignment and no act done or omitted by
Assignee pursuant to the powers and rights granted it hereunder shall be deemed
to be a waiver by Assignee of its rights and remedies under the Loan Agreement
or any of the other Loan Documents, and this Assignment is made and accepted
without prejudice to any of the rights and remedies possessed by Assignee under
the terms of the Loan Agreement or any of the other Loan Documents. The rights
of Assignee under the other Loan Documents may be exercised by Assignee either
prior to, simultaneously with, or subsequent to any action taken by it
hereunder. This Assignment is intended to be supplementary to and not in
substitution for or in derogation of any assignment of rents or grant of a
security interest contained in the Mortgage or in any of the other Loan
Documents.
Section 5. EVENT OF DEFAULT.
Upon or at any time after the occurrence and during the continuance of
an Event of Default, then in addition to and without limiting any of the
Assignee's rights and remedies hereunder and under any of the other Loan
Documents and as otherwise available at law or in equity:
(a) Assignee may, at its option, without waiving such Event of
Default and without regard to the adequacy of the security for the Debt, either
in person or by agent, without bringing any action or proceeding, or by a
receiver appointed by a court, without taking possession of the Property in its
own name, demand, xxx for or otherwise collect and receive all Rents, including
those past-due and unpaid, for application to the payment of the Debt in
accordance with the terms of the Loan Agreement and Assignee may enter into, and
to the extent that Assignor would have the right to do so, cancel, enforce or
modify any Lease. The exercise by Assignee of the option granted it in this
Section and the collection of the Rents and the application thereof as herein
provided shall not be considered a waiver of
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any Event of Default by Assignor under the Loan Agreement or any other Loan
Document;
(b) Assignor hereby acknowledges and agrees that payment of any item
by a Person to the Assignee as hereinabove provided shall constitute payment in
full of such item of Rent by such Person, as fully and with the same effect as
if it had been paid to Assignor; and
(c) Assignee in respect of the Leases and Rents shall have all of the
rights and remedies of a secured party under the Uniform Commercial Code as in
effect in the State in which such rights and remedies are properly asserted as
described in Section 12(b) to the extent of such rights thereunder and
additional rights and remedies to which a secured party is entitled under the
laws in effect in any jurisdiction where any rights and remedies hereunder may
be properly asserted.
Section 6. APPLICATION OF RENTS AND PROCEEDS.
After the occurrence and during the continuance of an Event of
Default, rents received or held by Assignor or Assignee shall be applied in
accordance with the terms of the Loan Agreement.
Section 7. ATTORNEY-IN-FACT.
Upon the occurrence and during the continuance of any Event of
Default, Assignor hereby appoints Assignee the attorney-in-fact of Assignor to
take any action and execute any instruments that Assignor is obligated, or has
covenanted and agreed under the Loan Agreement or the other Loan Documents to
take or execute, which appointment as attorney-in-fact is irrevocable and
coupled with an interest. Without limiting the generality of the foregoing
provisions of this Section 7, upon the occurrence and during the continuance of
an Event of Default, Assignor does hereby irrevocably appoint the Assignee as
its attorney-in-fact with full power, in the name and stead of Assignor to
demand, collect, receive and give complete acquittance for any and all of the
Rents now due or that may hereafter become due, and at the Assignee's
discretion, to file any claim, to take any other action, to institute any
proceeding or to make any settlement of any claim, either in its own name or in
the name of Assignor or otherwise, which the Assignee may deem necessary or
desirable in order to collect and enforce the payment of Rents.
Section 8. TERMINATION.
The Assignee, by the acceptance of this Assignment, agrees that this
Assignment shall terminate (i) when all of the Debt shall have been paid or
defeased in full, and (ii) as to any portion of the Property that is released
from the Mortgage, and the Assignee shall execute and deliver to Assignor, upon
such termination such instruments of re-assignment and Uniform Commercial Code
termination statements, all without recourse and without any representation or
warranty whatsoever, as shall be reasonably necessary to evidence such
termination or as otherwise reasonably requested by Assignor.
Section 9. EXPENSES.
Assignor agrees to pay to the Assignee all actual and reasonable
out-of-pocket expenses (including reasonable expenses for attorneys' fees and
costs of every kind) of, or incident to, the enforcement of any of the
provisions of this Assignment or performance by the Assignee of any
obligation of Assignor hereunder which Assignor has failed or refused to
perform.
Section 10. FURTHER ASSURANCES.
Assignor agrees that, from time to time upon the reasonable written
request of the Assignee, it will give, execute, deliver, file and/or record any
financing statements, notice, document,
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agreement or other instrument and do such other acts and things that may be
necessary and desirable (in the reasonable judgment of the Assignee) to
create, preserve, perfect or validate this Assignment, to enable Assignee to
exercise and enforce its rights hereunder with respect to this Assignment or
to otherwise carry out the purposes and intent of this Assignment.
Section 11. NO OBLIGATION BY THE ASSIGNEE.
(a) By virtue of this Assignment, the Assignee shall not be obligated
to perform or discharge, nor does it hereby undertake to perform or discharge,
any obligation, duty or liability under any of the Leases.
(b) This Assignment shall not operate to place responsibility for the
control, care, management or repair of the Property upon the Assignee, nor shall
it operate to make the Assignee responsible or liable for any waste committed on
the Property by any tenant or other party in possession or for any dangerous or
defective condition of the Property or for any negligence in the management,
upkeep, repair or control thereof.
Section 12. MISCELLANEOUS.
(a) No failure on the part of the Assignee or any of its agents to
exercise, and no course of dealing with respect to, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise by the Assignee or any of its agents of any
right, power or remedy hereunder preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. The remedies herein are
cumulative and are not exclusive of any remedies provided by law.
(b) WITH RESPECT TO MATTERS RELATING TO THE CREATION, PERFECTION AND
PROCEDURES RELATING TO THE ENFORCEMENT OF THIS ASSIGNMENT, THIS ASSIGNMENT SHALL
BE GOVERNED BY, AND BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE IN
WHICH THE PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT, EXCEPT AS EXPRESSLY SET
FORTH ABOVE IN THIS PARAGRAPH AND TO THE FULLEST EXTENT PERMITTED BY THE LAW OF
SUCH STATE, THE LAW OF THE STATE OF ILLINOIS SHALL GOVERN ALL MATTERS RELATING
TO THIS ASSIGNMENT AND THE OTHER PROPERTY LOAN DOCUMENTS AND ALL OF THE
INDEBTEDNESS OR OBLIGATIONS ARISING HEREUNDER OR THEREUNDER. ALL PROVISIONS OF
THE LOAN AGREEMENT INCORPORATED HEREIN BY REFERENCE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, AS SET FORTH IN
THE GOVERNING LAW PROVISION OF THE LOAN AGREEMENT.
(c) All rights and remedies set forth in this Assignment are
cumulative, and the Assignee may recover judgment thereon, issue execution
therefor, and resort to every other right or remedy available at law or in
equity, without first exhausting and without affecting or impairing the security
of any right or remedy afforded hereby; and no such right or remedy set forth in
this Assignment shall be deemed exclusive of any of the remedies or rights
granted to the Assignee in any of the Loan Documents. Nothing contained in this
Assignment shall be deemed to limit or restrict the rights and remedies of the
Assignee under the Loan Agreement or any of the other Loan Documents.
(d) Assignor represents that it: (i) has been advised that Assignee
engages in the business of real estate financings and other real estate
transactions and investments which may be viewed as adverse to or competitive
with the business of Assignor or its affiliates; (ii) is represented by
competent counsel and has consulted counsel before executing this Assignment;
and (iii) has relied solely
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on its own judgment and on its counsel and advisors in entering into the
transaction(s) contemplated hereby without relying in any manner on any
statements, representations or recommendations of Assignee or any parent,
subsidiary or affiliate of Assignee.
Section 13. NO ORAL CHANGE.
This Assignment may not be amended except by an instrument in writing
signed by Assignor and Assignee.
Section 14. SUCCESSORS AND ASSIGNS.
Assignor may not assign its rights under this Assignment except as
permitted under the Loan Agreement. Subject to the foregoing, this Assignment
shall be binding upon, and shall inure to the benefit of, Assignor and Assignee
and their respective successors and assigns.
Section 15. NOTICES.
All notices, requests and other communications provided for herein
shall be given or made in writing in the manner specified in the Loan Agreement.
Section 16. EXCULPATION.
[Notwithstanding anything herein to the contrary, Assignee shall not
enforce the liability and obligations contained in the Note, the Loan Agreement,
this Assignment or the other Loan Documents except as provided in Section 9.4 of
the Loan Agreement.] [THIS PARAGRAPH WILL BE DELETED IN BRIDGE LOAN DOCUMENTS.]
Section 17. CONFLICTS.
In the event the terms of this Assignment conflict with the terms of
the Loan Agreement, the terms of the Loan Agreement shall control.
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IN WITNESS WHEREOF, this Assignment has been duly executed by the
Assignor as of the day and year first above written.
[_________________________], a [_____________________]
By: Horizon Group Properties, L.P., a Delaware limited
partnership, its [_________]
By: Horizon Group Properties, Inc., a Maryland
corporation, its general partner
By:_______________________________
Name:
Title:
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STATE OF )
) ss.:
COUNTY OF )
This instrument has been acknowledged before me on this _____ day of
, 1998, by ____________, the __________ of Horizon Group Properties,
Inc., a Maryland corporation, in its capacity as the general partner of Horizon
Group Properties, L.P., a Delaware limited partnership, in its capacity as
_______________ of _____________________ on behalf of such entity.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal of
office this ____ day of , 1998.
_____________________________
Notary Public
[Notarial Seal]
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"EXHIBIT A"
Description of Property
1
