Exhibit 4.4
CRC-I
Location: ____________________
State: ______________________
Recording Requested By
And When Recorded Mail To:
State Street Bank and Trust
Company
One Heritage Drive
North Quincy, Massachusetts 02171
Attn: Andrew Sinasky
_______________________________________________________________________
(Space above line for Recorder's use)
ASSIGNMENT OF LESSOR'S INTEREST IN LEASES
THIS ASSIGNMENT OF LESSOR'S INTEREST IN LEASES, dated as of
December 15, 1993 (herein, together with all supplements and amendments
hereto, this "Assignment"), is made and delivered by CRC-I LIMITED
PARTNERSHIP, a Massachusetts limited partnership ("Owner"), to FM 1993A
CORP., a Delaware corporation (herein, together with its successors and
assigns, "Assignee").
RECITALS
A. Pursuant to a Note Purchase Agreement, Assignee is
purchasing from Owner that certain Promissory Note issued or to be issued by
Owner thereunder, in the principal amount of $30,172,952 (the "Mortgage
Note") in connection with a number of properties (collectively, and including
any Substitute Property subject to (and as such term is defined in) the
Master Lease described below, the "Properties") an estate for years in which
is being acquired by Owner from Foodmaker, Inc., a Delaware corporation
("Foodmaker"), which Properties are more particularly described in and are
being or will hereafter be leased to Foodmaker pursuant to a Master Lease,
dated as of December 15, 1993, between Owner, as Lessor, and Foodmaker, as
Lessee, as the same may be amended or supplemented from time to time (the
"Master Lease"). The Mortgage Note and Owner's obligations under the
Mortgage Note Documents (as defined in the Mortgage Note) are secured by,
among other things, the Note Mortgages (as defined in the Mortgage Note) now
or hereafter executed by Owner or Foodmaker, and the Other Note Mortgages (as
defined in the Mortgage Note) now or hereafter executed by Other Owner (as
hereinafter defined) or Foodmaker (the Note Mortgages and the Other Note
Mortgages are referred to herein collectively as the "Mortgages"). In order
to induce Assignee to purchase the Mortgage Note, Owner is entering into the
undertakings
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herein set forth with Assignee and is assigning all of Owner's estate, right,
title and interest in and to the Leases and the Rents, Profits and Proceeds
(as hereinafter defined) to Assignee.
B. The real property described in Exhibit A attached hereto
is one of the Properties covered by the Master Lease and all references herein
to the "Properties" shall include any one or more of the Properties,
individually or collectively, including the real property described in Exhibit
A. Duplicate originals of this Assignment are being recorded with respect to
each of the Properties. A Short Form of Master Lease, Notice of
Non-Responsibility, and Subordination and Recognition Agreement (each, a
"Memorandum of Lease"), executed by Owner, as Lessor, and Foodmaker, as Lessee,
is being or will be recorded in respect of each of the Properties. As used
herein, the term "Master Lease" shall include, collectively, the Master Lease
and each Memorandum of Lease.
C. Pursuant to a Note Purchase Agreement, Assignee is also
purchasing from CRC-II Limited Partnership, a Massachusetts limited
partnership (the "Other Owner"), that certain Promissory Note issued or to be
issued by Other Owner thereunder, in the principal amount of $39,827,048 (the
"Other Mortgage Note;" the Mortgage Note and the Other Mortgage Note are
referred to herein collectively as the "Notes"), in connection with a number
of properties (collectively, and including any Substitute Property subjected
to (and as such term is defined in) the Other Master Lease described below,
the "Other Properties"), now or hereafter being acquired by Other Owner from
Foodmaker. The Other Properties are more particularly described in and are
being leased to Foodmaker pursuant to a Master Lease, dated as of
December 15, 1993, between Other Owner, as Lessor, and Foodmaker, as Lessee
(the "Other Master Lease"). Other Owner is also a party to the Mortgage Note
Documents (as defined in the Other Mortgage Note); such Mortgage Note
Documents are referred to herein as the "Other Mortgage Note Documents."
D. Concurrently herewith, Assignee has assigned and pledged
to State Street Bank and Trust Company, as Trustee (together with any successor
trustee appointed pursuant to the Indenture, as hereinafter defined, the
"Indenture Trustee") its interest in the Mortgage Note and the Other Mortgage
Note, including, without limitation, its interest in each of the Note Mortgages
executed by Owner or Foodmaker and this Assignment (as evidenced by a separate
assignment which is attached to and forms part of each of the Note Mortgages)
and in the Other Note Mortgages now or hereafter executed by Other Owner or
Foodmaker in connection with the Other Mortgage Note, as collateral for certain
Senior Secured Notes in the original principal amount of $70,000,000
(collectively, and together with any notes issued or to be issued in replacement
or exchange therefor, including, without limitation, notes issued in exchange
therefor pursuant to the Registration Rights Agreement referred to in the
Indenture described below, the "Issuer Notes"), issued by Assignee pursuant to
that certain Indenture, dated as
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of December 15, 1993 (together with all amendments and supplements thereto,
the "Indenture"), between Issuer and Indenture Trustee.
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt of which is hereby acknowledged,
Owner agrees as follows:
1. OWNER HEREBY ASSIGNS, TRANSFERS AND CONVEYS to Assignee
all of Owner's estate, right, title and interest, whether now existing or
hereafter arising, in, to and under, but none of Owner's obligations under,
the following:
(a) the Master Lease and each Memorandum of Lease as
they affect all of the Properties, whether now existing or hereafter
executed;
(b) all other leases, subleases and other occupancy
agreements of any nature whether now existing or hereafter executed covering
all or any of the Properties or any portion thereof;
(c) all extensions, renewals, modifications,
replacements or supplements of any of the foregoing in clauses (a) and (b),
and together with any and all guarantees of the obligations of the lessees
and occupants (each, including, without limitation, Foodmaker and its
successors and assigns, a "lessee") thereunder, whether now existing or
hereafter executed, and all extensions, renewals, modifications, replacements
or supplements thereof (all of the foregoing in clauses (a) and (b) being
collectively referred to herein as the "Leases" and each individually as a
"Lease");
(d) all rents, royalties, issues, profits, revenue,
income, moneys and security payable or receivable, and all other benefits and
proceeds of any of the Properties or any portion thereof, whether arising
from the use, enjoyment, sale, disposition or transfer of all or any portion
thereof from any Lease or agreement pertaining thereto now or hereafter
entered into or otherwise, including without limitation, all Basic Rent,
Special Rent, Special Sinker Rent and Additional Rent (each as defined in the
Master Lease), all Purchase Prices (as defined in the Master Lease) and other
purchase proceeds, all payments, receipts and other consideration of any sort
whatsoever payable in respect of any of the Properties or any portion thereof
under the Master Lease or any other Lease, including in respect of the Year
Nine Offer and the Offer (each as defined in the Master Lease), or any
Substitution, Purchase or Early Termination (as such terms are defined in the
Master Lease), or any exercise of the Option or the Right of First Refusal
(as such terms are defined in the Master Lease), and all claims and rights to
the payment of money at any time arising in connection with any breach of the
Master Lease by Foodmaker (including, without limitation, any claims arising
out of a breach by Foodmaker of any obligation to purchase or to make an
offer to purchase the Properties or any Property pursuant to the Master
Lease) or any
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rejection of the Master Lease by Foodmaker or a trustee of Foodmaker (or of
any other Lease by any lessee thereunder or trustee of any such lessee) under
Section 365 of the Federal Bankruptcy Code or any successor statute (the
"Bankruptcy Code"), including, without limitation, all rights to recover
damages arising out of such breach or rejection, all rights to charges
payable by Foodmaker or such trustee (or by any other lessee or trustee) in
respect of any of the Properties or any portion thereof following the entry
of an order for relief under the Bankruptcy Code in respect of Foodmaker (or
such other lessee) and all rentals and other charges outstanding under the
Master Lease (or other Lease) as of the date of entry of such order for
relief (all of the foregoing in this subparagraph (d) being referred to
herein collectively as "Rents, Profits and Proceeds"); and
(e) all rights, powers, privileges, options and other
benefits of Owner relating to the Leases and the Rents, Profits and Proceeds,
including, but not by way of limitation, (i) the immediate and continuing
right to receive and collect all Rents, Profits and Proceeds under the Leases
or pursuant to any of the provisions thereof, (ii) the right to grant any and
all waivers and enter into any and all agreements, (iii) the right to grant
or refuse requests or to give or withhold all notices, consents and releases,
(iv) the right to give all notices of default and to take any legal action
upon the occurrence of a default under the Leases, including the
commencement, conduct and consummation of proceedings at law or in equity as
shall be permitted under any provision of any Lease or by law or in equity,
(v) the right to enforce the obligations of Foodmaker under Article 30 of the
Master Lease to make the Nine Year Offer and the Offer as required
thereunder, to exercise Owner's right to deliver to Foodmaker an "Early Offer
Notice" pursuant to Article 20, paragraph (b) of the Master Lease, and to
enforce Foodmaker's obligations under each such Article, (vi) all rights of
Owner in the event of any assignment for the benefit of creditors,
bankruptcy, arrangement, reorganization, insolvency, dissolution,
receivership or other debtor-relief proceedings affecting Foodmaker or any
other lessee or guarantor or with respect to any award made to Owner in any
such proceeding (without obligation on the part of Assignee, however, to file
timely claims in such proceedings or otherwise pursue creditor's rights
therein), (vii) all rights of Owner to elect to reject, assume or assign the
Master Lease or any other Lease (as applicable) in the event of any
bankruptcy affecting Owner, and (viii) the right to do any and all other
things whatsoever which Owner is or may be entitled to do under the Leases.
All subsequent Leases of all or any of the Properties or any
portion thereof and all Rents, Profits and Proceeds arising therefrom shall
automatically be subject to all of the terms and conditions of this
Assignment and assigned to Assignee hereunder without the necessity of any
further action on the part of Owner, Assignee, Foodmaker, any other lessee or
the Indenture Trustee, as if the same were originally included within the
definitions of "Leases," "Rents, Profits and Proceeds" and "Properties"
contained herein.
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The parties intend that this Assignment shall be a present,
absolute, unconditional assignment of the Leases and the Rents, Profits and
Proceeds to Assignee to provide a source for payment of the Mortgage Note and
the Other Mortgage Note, and shall vest in the Indenture Trustee (by virtue
of the assignment by Assignee to the Indenture Trustee described in Recital D
above) the immediate, absolute, unconditional and continuing right to collect
and receive, and enforce the collection of, all Rents, Profits and Proceeds,
free and clear of all claims and demands of any person or entity whatsoever,
regardless of the occurrence or non-occurrence of any default under any
Mortgage Note Documents or the Indenture, the adequacy of the collateral for
the Mortgage Note or the Other Mortgage Note, or whether or not Assignee or
Indenture Trustee has entered upon or taken possession, or any actions
equivalent thereto, of any of the Properties, obtained appointment of a
receiver or taken any other enforcement actions under the Mortgage Note
Documents; provided, however, that the execution and delivery hereof shall
not in any way impair or diminish the obligations of Owner under the
provisions of the Leases nor shall any of the obligations contained in any
Lease be imposed upon Assignee or the Indenture Trustee. Nothing contained
herein, nor any collection of Rents, Profits and Proceeds by Assignee or the
Indenture Trustee or by a receiver, nor any other exercise of rights or
powers hereunder by Assignee or the Indenture Trustee (including, without
limitation, any power of attorney), shall be construed to make any such party
a "mortgagee-in-possession" of any of the Properties, or obligate Assignee or
the Indenture Trustee to appear in or defend any action or proceeding, expend
any money or incur any expenses, assume or perform any obligation or assume
or discharge any liability, or take any other action, hereunder or under or
in connection with any Lease or any of the Properties.
2. OWNER WARRANTS as to each Lease now in existence, if
any:
(a) that each Lease is in full force and effect;
(b) that no default exists on the part of the lessee
thereunder or Owner;
(c) that no rent has been collected in advance;
(d) that no Lease or any interest therein has been
previously assigned or pledged;
(e) that no lessee under any Lease has any defense,
setoff or counterclaim against Owner; and
(f) that all rent due to date under each Lease has been
collected and no concession has been granted to any lessee in the form of a
waiver, release, reduction, discount or other alteration of rent due or to
become due.
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3. OWNER HEREBY IRREVOCABLY DIRECTS AND AUTHORIZES
Foodmaker and any other lessee and guarantor to pay all Rents, Profits and
Proceeds now due or hereafter due directly to the Indenture Trustee in
accordance with the written instructions of the Indenture Trustee from time
to time, and to rely upon and comply with any notice or demand by the
Indenture Trustee for the payment to the Indenture Trustee of any Rents,
Profits and Proceeds due or to become due or in connection with the exercise
of any other right, power, benefit or remedy available to Owner under any
Lease. This Assignment shall constitute a direction to and full authority to
Foodmaker and any other lessee under any Lease and each guarantor of any
Lease to immediately and continuously pay all Rents, Profits and Proceeds
directly to the Indenture Trustee and to acknowledge the assignment to
Assignee and the reassignment by Assignee to the Indenture Trustee of all of
Owner's rights, powers, benefits and remedies under the Leases without regard
to the occurrence or non-occurrence of any default and without other notice
or direction. Owner nevertheless hereby authorizes Assignee and Indenture
Trustee to give separate written notice of this Assignment to any lessees or
guarantors. Owner agrees that Foodmaker and any other lessee making any
payment to the Indenture Trustee in reliance on this Assignment or any
separate notice or demand from Assignee shall be fully protected, and Owner
will make no claim against Foodmaker or any other lessee to the extent of
such payments. Owner agrees that this assignment and the designation and
direction to Foodmaker and each other lessee and guarantor set forth herein
are irrevocable, and that it will not take any action under any Lease which
is inconsistent with this Assignment, or make any other assignment,
designation or direction inconsistent therewith, and that any assignment,
designation or direction inconsistent therewith shall be void. Owner will,
from time to time upon the request of Assignee or the Indenture Trustee,
execute all instruments of further assurance and all such supplemental
instruments with respect to this Assignment as the Assignee or the Indenture
Trustee may specify, subject, however, to the provisions of Section 15
hereof.
4. OWNER AGREES WITH RESPECT TO EACH LEASE:
(a) If any Lease provides for a security deposit paid
by the lessee to Owner, this Assignment transfers to the Assignee (and to the
Indenture Trustee, as its assignee) all of Owner's right, title and interest
in and to such security deposit; provided that, neither Assignee nor the
Indenture Trustee shall have any obligation to the lessee with respect to
such security deposit.
(b) Owner shall not grant any concessions in connection
with any Lease.
(c) Owner shall not discount any future accruing Rents,
Profits and Proceeds or collect any Rents, Profits and Proceeds in advance of
the date on which they become due.
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(d) Owner shall not cancel or terminate any Lease or
accept a surrender thereof.
(e) Owner shall not modify, amend, supplement or
otherwise change any Lease, either orally or in writing, without the prior
written consent of the Indenture Trustee in each instance. Subject to the
foregoing, Owner shall deliver promptly to Assignee and the Indenture
Trustee, true, correct and complete copies of each Lease and all amendments,
modifications, supplements, exhibits or addenda thereto executed or arising
after the date hereof.
(f) Owner shall notify Assignee and the Indenture
Trustee of any assignment or subletting under any Lease.
(g) Owner shall not execute any further assignment of
any of the Leases, Rents, Profits and Proceeds or any interest therein or
suffer or permit any such assignment to occur by operation of law or
otherwise.
(h) (i) If any Year Nine Offer or Offer is made or deemed
made by Foodmaker under Article 30 of the Master Lease (including,
without limitation, any such Offer made as a result of the
designation of an "Early Offer Date" pursuant to the Master Lease),
Owner shall accept such Year Nine Offer or Offer and shall comply
with all of its obligations under said Article 30 and under Article
28 of the Master Lease with respect to the conveyance of Owner's
interest in the applicable Properties to Foodmaker unless Owner has
paid to the Indenture Trustee, at least five (5) business days prior
to the last day for the rejection of such Year Nine Offer or Offer in
accordance with the Master Lease, in immediately available funds (A)
in the case of the Year Nine Offer, the Allocable Principal Balances
(as defined in the Mortgage Note) attributable to the Units (as so
defined) included within the Year Nine Units (as defined in the
Master Lease) and such additional amounts as may be required to be
deposited in the Equity Collection Account (as defined in the
Indenture) pursuant to the Mortgage Note, and (B) in the case of the
Offer, the outstanding principal balance of the Mortgage Note, all
accrued and unpaid interest thereon, any premium due in connection
therewith, and all other sums due under the Mortgage Note Documents
and the Indenture. Any attempted rejection of any such offer in
violation of the foregoing shall be null and void and of no force or
effect.
(ii) If Foodmaker exercises its Year Nine Option or
its Option under Article 31 of the Master Lease to purchase Owner's
interest in any of the Properties, Owner shall comply with all of its
obligations under said Article 31 and under Article 28 of the Master
Lease with respect to the conveyance of Owner's interest in such
Properties to Foodmaker; provided that nothing contained herein shall
be construed as waiving or limiting the restrictions set forth in
said Article 31 upon the purchase price payable by Foodmaker in
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connection with any such Option or any of the conditions to the
ability of Foodmaker to consummate such purchase set forth therein.
(iii) If any Early Termination Election (as defined in
the Master Lease) is made by Foodmaker under Article 37 of the Master
Lease with respect to any one or more Terminated Units (as defined in
the Mortgage Note), Owner shall accept the Lessee's Early Termination
Offer (as defined in the Master Lease) and shall comply with all of
its obligations under said Article 37, Article 28 and Schedule K of
the Master Lease with respect to the conveyance of Owner's interest
in the applicable Terminated Units to Foodmaker unless Owner has paid
to the Indenture Trustee, at least five (5) business days prior to
the last day for the delivery of a Notice of Rejection of Termination
Offer in accordance with the Master Lease, in immediately available
funds, an amount equal to the Early Termination Payment for such
Terminated Unit and has deposited with the Indenture Trustee for
deposit in the Equity Collection Account (as defined in the
Indenture) such additional sums as may be required to be deposited
therein as set forth in the Mortgage Note. Any attempted rejection
of any such Early Termination Election by Lessor in violation of the
foregoing shall be null and void and of no force or effect.
(i) Subject at all times to the terms and conditions
of this Assignment, Owner shall faithfully perform and discharge all of its
obligations under the Master Lease and all other Leases and enforce the
Master Lease and all other Leases and all remedies available to Owner against
Foodmaker and any other lessee in the case of default under any Lease by
Foodmaker or any other lessee, subject to the assignment of the rights to
enforce such Leases provided for herein. Without limiting the foregoing, Owner
shall enforce Foodmaker's obligations under Article 30 of the Master Lease to
make the Year Nine Offer or Offer as required thereunder, unless Owner has paid
to the Indenture Trustee, at least five (5) business days prior to the last day
for the rejection of such Offer in accordance with the Master Lease, in
immediately available funds, (A) in the case of the Year Nine Offer, the
Allocable Principal Balances attributable to the Units included within the Year
Nine Units and such additional amounts as may be required to be deposited in the
Equity Collection Account pursuant to the Mortgage Note, and (B) in the case of
the Offer, the outstanding principal balance of the Mortgage Note, all accrued
and unpaid interest thereon, any premium due in connection therewith, and all
other sums due under the Mortgage Note Documents and the Indenture.
(j) Owner shall deliver to Assignee and the Indenture
Trustee, promptly upon request, duly executed estoppel certificates from
Foodmaker or any other lessee under any Lease as required by Assignee or the
Indenture Trustee in such form as may be required under such Lease.
(k) Each Lease shall remain in full force and effect
despite any merger of the interest of Owner and any lessee thereunder.
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In no event shall any transfer or conveyance of any of the Properties to a
lessee operate to release or relieve Owner of any liability to Assignee
unless Assignee specifically agrees otherwise in writing.
(l) Owner shall not request, consent to, agree to or
accept a subordination of any Lease to any mortgage, deed of trust or other
encumbrance, or any other lease, now or hereafter affecting any of the
Properties or any part thereof, or suffer or permit conversion of any Lease
to a sublease.
(m) Owner shall give prompt written notice to Assignee
and the Indenture Trustee of any notice of Owner's default received from any
lessee or any other person and furnish Assignee and the Indenture Trustee
with a complete copy of said notice. Owner shall appear in and defend, at no
cost to Assignee, any action or proceeding arising under or in any manner
connected with any Lease. If requested by Assignee, Owner shall enforce each
Lease and all remedies available to Owner against the lessee in the case of
default under the Lease by the lessee.
(n) Subject to the terms of each Memorandum of Lease
and the Indenture, nothing herein shall be construed to impose any liability
or obligation on Assignee or the Indenture Trustee under or with respect to
any Lease by reason of or arising out of the assignment hereunder, nor shall
Assignee or the Indenture Trustee be required or obligated in any manner to
perform or fulfill any obligations of Owner under the Lease or pursuant to
any Mortgage Note Documents or Indenture Documents to make any payment, or to
make any inquiry as to the nature or sufficiency of any payment received by
it, or present or file any claim, or take any action to collect or enforce
the payment of any amounts which may have been assigned to it or to which it
may be entitled at any time. Owner shall indemnify, defend, protect and hold
Assignee, the Indenture Trustee and their respective shareholders, partners,
officers, directors, representatives, agents, employees, successors and
assigns (collectively, the "Indemnified Parties"), harmless from and against
any and all expenses, losses, claims, damages and liabilities, including,
without limitation, attorneys' fees and expenses of both outside and staff
counsel (collectively and severally, "Losses") incurred by or assessed
against any Indemnified Party under any Lease or by reason of this Assignment
(including, without limitation, costs and expenses incurred pursuant to
Sections 5 or 6 hereof), and of and from any and all claims and demands
whatsoever which may be asserted against any Indemnified Party by reason of
any alleged obligations to be performed or discharged by Owner or any
Indemnified Party under any Lease or this Assignment. Should any Indemnified
Party incur a Loss under any Lease or under or by reason of this Assignment,
Owner shall immediately upon demand reimburse such Indemnified Party for the
amount thereof together with all attorneys' fees and expenses (of both
outside and staff counsel) incurred by or assessed against such Indemnified
Party. All of the foregoing sums shall bear interest until paid at the
Overdue Rate (as defined in the Mortgage Note).
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If an Indemnified Party notifies Owner of any Loss, demand,
action, investigation, administrative or legal proceeding, or allegation as
to which the indemnity provided for in this Section 4(n) applies, Owner shall
assume on behalf of the Indemnified Party and conduct with due diligence and
in good faith the investigation and defense thereof and the response thereto
with counsel selected by Owner but reasonably satisfactory to the Indemnified
Party; provided, that the Indemnified Party shall have the right to be
represented by advisory counsel of its own selection and at its own expense;
and provided further, that if any such loss, demand, action, investigation,
proceeding, allegation or liability involves both Owner and the Indemnified
Party and the Indemnified Party shall have reasonably concluded that there
may be legal defenses available to it which are inconsistent with or in
addition to those available to Owner, then the Indemnified Party shall have
the right to select separate counsel to participate in the investigation and
defense of and response to such loss, demand, action, investigation,
proceeding, allegation or liability on its own behalf and Owner shall pay or
reimburse the Indemnified Party for all attorney's fees and disbursements
incurred by the Indemnified Party because of the selection of such separate
counsel.
If any Loss, demand, action, investigation, proceeding or
allegation arises as to which the indemnity provided for in this Section 4(n)
applies, and Owner fails to assume promptly (and in any event within fifteen
(15) days after having knowledge of the same) the defense of the Indemnified
Party, then the Indemnified Party may (but shall not be obligated to) contest
(without prior notice to or consent of Owner) the Loss, demand, action,
investigation, proceeding or allegation at Owner's expense using counsel
selected by the Indemnified Party or the Indemnified Party may settle or pay
in full the amount of any such claim (without prior notice to or consent from
Owner), without releasing Owner from any obligations to each Indemnified
Party under this Section 4(n), if in the written opinion of counsel to the
Indemnified Party, the settlement or payment in full is advisable.
The rights of each Indemnified Party under this Section 4(n)
shall be in addition to any other rights and remedies of such Indemnified
Party against Owner under the Mortgage Note Documents.
5. OWNER HEREBY GRANTS TO ASSIGNEE AND INDENTURE TRUSTEE
THE FOLLOWING RIGHTS:
(a) Assignee (or, at Indenture Trustee's option,
Indenture Trustee) shall be deemed to be the creditor of each lessee in
respect of any assignments for the benefit of creditors and any bankruptcy,
arrangement, reorganization, insolvency, dissolution, receivership or other
debtor-relief proceedings affecting such lessee (without obligation on the
part of Assignee or Indenture Trustee, however, to file timely claims in such
proceedings or otherwise pursue creditor's rights therein). Without limiting
the foregoing, Assignee or
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Indenture Trustee shall be entitled and empowered (but shall not be
obligated) by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
owing and unpaid in respect of any such Lease and to file such other
papers or documents as may be necessary or advisable in order to have
such claims allowed in any such proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of Owner in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation, or other
bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings; and
(iii) to collect and receive any monies or other property
payable to or deliverable on any such claims.
(b) Assignee shall have the right to assign Owner's
right, title and interest in the Leases to any subsequent holder of any
Mortgage or any participating interest therein (including, without
limitation, the Indenture Trustee) or to any person acquiring title to any
the Properties or any part thereof through foreclosure or otherwise. Any
subsequent assignee shall have all the rights and powers herein provided to
Assignee. Owner acknowledges and consents to the assignment of Assignee's
rights under this Assignment from Assignee to the Indenture Trustee,
including, without limitation, the immediate and continuing right to make
claim for, receive and collect all Rents, Profits and Proceeds payable or
receivable with respect to any of the Properties, to make all waivers and
enter into any and all agreements, to grant or refuse requests, to give or
withhold notices, consents and releases, to exercise remedies and bring
proceedings under the Leases or for the specific or other enforcement thereof
or with respect thereto, in the name of Owner or otherwise, and to execute
and deliver, in the name and on behalf of Owner, as agent and attorney-in-
fact, any and all instruments in connection therewith, including appropriate
instruments of conveyance, and to do any and all things which Owner is or may
be entitled to do thereunder; provided that no obligation of Owner under the
provisions of any Leases or with respect thereto shall be imposed upon
Assignee or the Indenture Trustee. Without limiting the foregoing, until
such time as the pledge of this Assignment is released in writing by the
Indenture Trustee in accordance with the Indenture, the Indenture Trustee
shall have the sole right to exercise all rights, powers, privileges,
options, benefits and remedies of Assignee hereunder.
(c) Assignee shall have the right (but not the
obligation), upon any failure of Owner to perform any of its agreements
hereunder and without releasing Owner from any obligation hereunder or under
any Mortgage Note Documents, to take any action as Assignee may deem
necessary or appropriate to protect its security, including, but not limited
to, appearing in any action or proceeding and performing any
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obligations of the lessor under any Lease, and Owner agrees to pay, on
demand, all costs and expenses (including, without limitation, attorneys'
fees and expenses of both outside and staff counsel) incurred by Assignee in
connection therewith, together with interest thereon at the Overdue Rate.
Any such amounts not paid upon demand shall be added to the indebtedness
evidenced by the Mortgage Note and shall be secured by each of the Note
Mortgages and Other Note Mortgages.
Neither the acceptance of this Assignment nor the collection
of any Rents, Profits and Proceeds or other sums payable hereunder shall
constitute a waiver of any rights of Assignee or the Indenture Trustee under
the Mortgage Note Documents or of any collateral for the Notes or the Issuer
Notes.
(d) Upon the occurrence of an Event of Default under
any of the Mortgage Note Documents, Assignee shall have the following rights
(none of which shall be construed to be obligations of Assignee):
(i) Assignee shall have the right to apply the Rents,
Profits and Proceeds and any sums recovered by Assignee pursuant to
Paragraph 4(a) hereof to Owner's outstanding indebtedness to Assignee
under the Mortgage Note Documents and Other Owner's indebtedness
under the Other Mortgage Note Documents, as well as to charges for
taxes, insurance, improvements, repairs, maintenance and other items
relating to the operation of any of the Properties and the Other
Properties.
(ii) Assignee shall have the right to take possession
(including, without limitation, by court appointed receiver) of any
of the Properties, manage and operate any of the Properties and
Owner's business thereon, and to take possession of and use all books
of account and financial records of Owner and its property managers
or representatives relating to any of the Properties.
(iii) Assignee shall have the right to execute new
leases of any of the Properties or any part thereof, including leases
that extend beyond the term of the Mortgage Note.
(iv) Assignee shall have the right to cancel or alter
any existing Leases.
All of the foregoing rights and remedies of Assignee are
cumulative, and Assignee shall also have upon the occurrence of any such
Event of Default all other rights and remedies provided under the Mortgage
Note Documents or otherwise available at law or in equity.
6. OWNER HEREBY IRREVOCABLY CONSTITUTES and appoints
Assignee its true and lawful attorney-in-fact in its name and stead, which
appointment is coupled with an interest and is irrevocable, with full power
of substitution (and by its acceptance hereof and in accordance with the
assignment referred to in Recital D above, Assignee has
12
substituted the Indenture Trustee as such attorney-in-fact) to do, in the
name of and on behalf of Owner, at any time and whether or not any default
has occurred or is continuing, without notice to or demand upon Owner, in the
sole discretion of said attorney-in-fact, without taking actual possession of
any of the Properties or any action equivalent thereto, and without regard to
the adequacy of any security for the Notes any or all of the following:
(a) to ask, demand, sue for, recover, collect and
receive any and all Rents, Profits and Proceeds, and to execute and deliver a
satisfaction or release therefor, together with the right and power to
compromise or compound any claim or demand; hereby granting full power and
authority to said attorney-in-fact to use and apply said Rents, Profits and
Proceeds for the following in such order of priority as said attorney-in-fact
deems proper: (i) for the purposes of the payment of any taxes, assessments
and charges of any nature whatsoever that may be levied or assessed in
connection with any of the Properties or any of the Other Properties or any
part thereof; (ii) to the payment of premiums on policies of insurance on or
in connection with the whole or any part of the Properties or the Other
Properties as may be required by the Mortgages; (iii) to the payment or
performance of any and all indebtedness, liabilities or obligations of Owner
or Other Owner secured by the Mortgages, whether now existing or hereafter to
exist; (iv) to the costs of completion of any improvements in or for any of
the Properties or Other Properties or any part thereof as deemed necessary or
advisable by said attorney-in-fact; (v) to the payment of all expenses
incurred in the care, operation and management of any of the Properties or
Other Properties or any part thereof, including such repairs, alterations,
additions and/or improvements to any of the Properties or Other Properties or
any part thereof as may be deemed necessary or advisable by said attorney-in-
fact; (vi) to the payment of attorneys' fees (for both outside and staff
counsel), court costs, labor, charges and/or expenses incurred in connection
with any and all things which said attorney-in-fact may do or cause to be
done by virtue hereof; and (vii) to the payment of such interest and
principal on the indebtedness secured by the Mortgages as said attorney-in-
fact may elect;
(b) to use such measures, legal or equitable, as in its
discretion may be deemed necessary or appropriate to enforce the payment of any
Rents, Profits or Proceeds;
(c) to secure and maintain the use and possession of
any of the Properties or any part thereof;
(d) to fill any and all vacancies in, and to sell,
rent, lease, sublease, exchange, grant, convey, transfer or otherwise dispose
of, and to amend, modify, supplement, extend or renew any Leases of, any of
the Properties, or any part thereof;
13
(e) to make contracts for the care and management of
any of the Properties or any part thereof, in such form and providing for
such compensation as may be deemed advisable by said attorney-in-fact;
(f) to enter into, negotiate, make, sign, execute,
acknowledge and deliver any agreement, contract, bill of sale, assignment,
lease, assignment of lease, deed, certificate, affidavit, easement, or any
other document or instrument, whether relating to real property or to
personal property, that may, in the opinion of said attorney-in-fact, be
necessary or desirable in connection with, any of the foregoing matters; and
(g) to take any actions incidental or necessary to
accomplish the foregoing or to the ownership, operation or management of the
Properties.
Owner, for the performance or execution of any or all of its
obligations hereunder and under the Mortgage Note Documents, hereby further
irrevocably grants to said attorney-in-fact, with full power of substitution,
full power and authority to do, execute, perform and finish for Owner and in
its name all and singular those things which Assignee or any such substitute
attorney-in-fact (including, without limitation, the Indenture Trustee) shall
deem necessary or advisable in and about, for, touching or concerning the
Properties or any of Owner's obligations hereunder or under the Mortgage Note
Documents as thoroughly, amply and fully as Owner could do concerning the
same being personally present. Owner hereby agrees that whatever its said
attorney-in-fact or any substitute shall do or cause to be done in, about or
concerning the Properties or any of Owner's obligations hereunder is hereby
ratified and confirmed.
Said attorney-in-fact is empowered hereby to determine in its
sole discretion the time when, purpose for and manner in which any power herein
conferred upon it shall be exercised, and the conditions, provisions and
covenants of any instrument or document which may be executed by it pursuant
hereto, and in the acquisition or disposition of real or personal property, said
attorney-in-fact shall have exclusive power to fix the terms thereof for cash,
credit and/or property, and if on credit with or without security.
Anything contained herein to the contrary notwithstanding,
said attorney-in-fact shall not be obligated to perform or discharge any
obligation, duty or liability of Owner, and Owner specifically agrees at all
times to fully perform and discharge all obligations, duties and liabilities
of the lessor under the Leases and each of them, or otherwise pertaining to
the ownership, operation, management or possession of the Properties.
7. THIS ASSIGNMENT is intended to be supplementary to and
not in substitution for or in derogation of any assignment of rents contained
in any Mortgage or in any other document. In the event of any
14
inconsistencies between the provisions of any assignment of rents contained
in any Mortgage and the provisions of this Assignment, the provisions of this
Assignment shall govern. Any failure of Assignee to avail itself of any
terms, covenants or conditions of this Assignment for any period of time or
for any reason shall not constitute a waiver thereof.
8. NOTWITHSTANDING any future modification of the terms of
the Mortgage Note Documents or the Other Mortgage Note Documents, this
Assignment and the rights and benefits hereby assigned and granted shall
continue in favor of Assignee in accordance with the terms of this
Assignment.
9. THIS ASSIGNMENT shall be binding upon Owner and its
legal representatives, successors and assigns, and shall inure to the benefit
of Assignee and its legal representatives, successors and assigns (including,
without limitation, the Indenture Trustee). Owner agrees that the rights of
Assignee hereunder are for the benefit of Assignee and its legal
representatives, successors and assigns (including, without limitation, the
Indenture Trustee) only, and not for the benefit of Owner, Foodmaker, any
other lessee or guarantor or any other party. The words "Owner," "Assignee,"
"lessee," and "guarantor," wherever used herein, shall include the persons
and entities named herein or in any Lease or guaranty and designated as such
and their respective legal representatives, successors and assigns. All
words and phrases shall be taken to include the singular or plural number,
and the masculine, feminine or neuter gender, as may fit the case.
10. THE OCCURRENCE of any default by Owner hereunder shall
constitute an Event of Default under the Note Mortgages and the Other Note
Mortgages, and in any such event, Assignee shall be entitled to exercise all
rights and remedies provided under the Mortgage Note Documents or the Other
Mortgage Note Documents or otherwise available at law or in equity.
11. UPON PAYMENT in full of the Notes, as evidenced by a
recorded satisfaction or release of all of the Note Mortgages and the Other
Note Mortgages, this Assignment shall be void and of no further effect. Upon
the release of any of the Note Mortgages from the lien of the Indenture and
the release or reconveyance thereof in accordance with the provisions of
Section 5.06 thereof in connection with a Substitution, Early Termination or
Purchase (as such terms are defined in the Master Lease) with respect to any
Property, such Property shall also be deemed to be released from this
Assignment, provided that, in the case of a Substitution, each Substitute
Property (as defined in the Master Lease) shall automatically be included in
the definition of "Properties" hereunder, and any new Lease or supplement to
the Master Lease entered into in connection therewith shall automatically be
subject to this Assignment as though originally included within the
definition of "Lease" and "Master Lease" hereunder, without the necessity of
any further action by Owner, Assignee, Foodmaker or the
15
Indenture Trustee, except that nothing contained herein shall relieve Owner,
Foodmaker or Assignee of any of their respective obligations to execute any
documents or take any other actions required to be taken or requested by the
Indenture Trustee to effectuate or in connection with any such Substitution,
Early Termination or Purchase.
12. ALL NOTICES hereunder shall be in writing and shall be
delivered by facsimile transmission (confirmed in writing) or delivered
personally or by depositing the same in the United States mail, registered,
with postage prepaid, addressed to the party so to be served at the address
for such party set forth on Schedule 1 attached hereto or at such other
address of which said party shall have theretofore notified in writing, as
provided above, the party giving such notice. Such notices shall be
effective on the date received or, if mailed, on the third business day
following the date mailed. Owner shall promptly send duplicate copies of all
notices given to it by Foodmaker or any other lessee to Assignee and the
Indenture Trustee. Owner shall promptly send duplicate copies of any notice
given by it hereunder to the Assignee to the Indenture Trustee.
13. IF ANY PROVISION hereof is determined to be illegal or
unenforceable for any reason, the remaining provisions hereof shall not be
affected thereby.
14. EXCEPT INSOFAR AS THE PROVISIONS of this Assignment
relating to the Property are required to be governed by and construed in
accordance with the substantive laws of the state where the Property is
located, this Assignment and the rights and obligations in respect thereof
shall be governed by, and construed and interpreted in accordance with, the
laws of the State of New York, without regard to conflicts of laws rules,
except that if the rights and remedies of Assignee or Indenture Trustee
hereunder with respect to the Property are enforceable under the laws of the
State where the Property is located but are not enforceable under New York
law, then such rights and remedies with respect to the Property shall be
governed by the substantive laws of the State where the Property is located.
Any legal action or proceeding with respect to this Assignment may be
instituted in the courts of the State of New York, the United States District
Court for the Southern District of New York, or elsewhere, as Assignee or
Indenture Trustee may elect, and by execution and delivery of this Assignment
Owner irrevocably and unconditionally submits to the jurisdiction of each
such court, and irrevocably and unconditionally waives (i) any objection it
may now or hereafter have to the laying of venue in any of such courts,
(ii) any claim that any action or proceeding brought in any of such courts
has been brought in an inconvenient forum, and (iii) any right, entitlement
or privilege which Owner or its property might otherwise have not to be
subject to such actions or proceedings by reason of sovereign immunity or
otherwise. Owner agrees that so long as Owner shall be obligated to Assignee
or Indenture Trustee under this Assignment, Owner shall maintain duly
appointed agents satisfactory to Assignee and Indenture Trustee for the
16
service of process in New York and shall keep Assignee and Indenture Trustee
advised in writing of the identification and location of such agents. The
failure of such agents to give notice to Owner of any such service shall not
impair or affect the validity of such service or of any judgment rendered in
any action or proceeding based thereon.
15. WITHOUT LIMITING any other provision of this Assignment,
Owner agrees that Owner shall not, without in each case obtaining the prior
written consent of the Indenture Trustee: take any action described in Section
4(b) through 4(g) or Section 4(l); enter into any amendment, modification,
extension or waiver of any of the terms or provisions of this Assignment or any
supplement to this Assignment; or cancel or discharge any of the terms or
provisions of this Assignment; or enter into any agreement for the postponement
of the date for performance of, or forgiveness of, the Mortgage Note or obtain
any approval or consent from Assignee required hereunder. Any such action shall
be null and void and of no force or effect unless the Indenture Trustee's prior
written consent thereto has been obtained. The Indenture Trustee may assign any
of its approval and other rights under this Section and elsewhere in this
Assignment to one or more agents.
16. THIS ASSIGNMENT may be executed in two or more
counterparts and shall be deemed to have become effective when and only when
one or more of such counterparts shall have been signed by or on behalf of
each of the parties hereto, although it shall not be necessary that any
single counterpart be signed by or on behalf of each of the parties hereto,
and all such counterparts shall be deemed to constitute but one and the same
instrument.
17. DUPLICATE ORIGINALS of this Assignment are being
executed, each with a different legal description attached as Exhibit A. A
duplicate original hereof is being or will be recorded in the official
records of each county (or other appropriate registry) in which a Property
(including a Substitute Property) is located, with the legal description for
such Property attached thereto as Exhibit A.
18. ASSIGNEE'S RECOURSE HEREUNDER shall be subject to the
same limitations as are set forth in Section 5.16 of the Mortgage, which
limitations (and the exceptions therefrom) are hereby incorporated herein by
this reference.
19. NOTWITHSTANDING ANYTHING TO THE CONTRARY contained
herein, but subject to the provisions of Section 18 hereof, in each case
where this Assignment provides for the payment of the attorneys' fees and
expenses of in-house or staff counsel to Assignee or the Indenture Trustee,
such provision shall obligate Owner to pay only the reasonably allocated fees
and expenses of in-house or staff counsel to the Indenture Trustee, based on
a billing for legal services actually rendered on an hourly basis and at a
reasonable hourly rate.
17
IN WITNESS WHEREOF, the undersigned Owner has executed this
Assignment.
OWNER
CRC-I LIMITED PARTNERSHIP, a Massachusetts
limited partnership
By: CRC-I Corp.,
a Massachusetts corporation,
its sole general partner
By: CHARLES DUDDLES
-----------------------------
Name: Charles Duddles
Its: President
18
CONSENT TO ASSIGNMENT
Pursuant to the foregoing Assignment of Lessor's Interest in
Leases (the "Assignment") by Owner (as such term and all other capitalized
terms used but not defined herein are defined in the Assignment) to the
Assignee, Owner has assigned to Assignee, among other things, all of Owner's
estate, right, title and interest in and to the Master Lease and any other
Leases as provided in the Assignment in order to partially satisfy the
Mortgage Note and the Other Mortgage Note. Assignee has in turn (pursuant to
the assignment described in Recital D of the Assignment) assigned and pledged
its interest in, among other things, each Note Mortgage, the Assignment and
the Other Mortgage Note Documents, to the Indenture Trustee in order to
secure payment of the Issuer Notes.
In order to induce Assignee and the Indenture Trustee to
accept such assignments, and for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the undersigned, Foodmaker,
Inc., a Delaware corporation ("Foodmaker"), hereby:
(a) consents to the assignments to Assignee and the Indenture
Trustee made pursuant to the Assignment and the assignment described
in Recital D to the Assignment;
(b) covenants to pay directly to the Indenture Trustee (or,
after receipt of written notice from the Indenture Trustee stating
that the Indenture has been fully satisfied and discharged, to Owner)
all amounts due to Owner under the Master Lease;
(c) agrees that the right of the Indenture Trustee to such
payments shall be present, absolute and unconditional, without regard
to the occurrence or non-occurrence of any default, and without
notice or demand, and shall not be affected by any circumstances
whatsoever;
(d) agrees that:
(i) the Indenture Trustee shall be entitled to exercise
all rights of the Owner under the Master Lease and to enforce the
provisions of the Master Lease;
(ii) Foodmaker shall not, for any reason, seek to recover
from the Indenture Trustee any moneys paid to the Indenture Trustee
by virtue of the Indenture, except for funds expressly provided to be
paid by the Indenture Trustee to Foodmaker pursuant to the Indenture;
(iii) all sums payable by Foodmaker under the Master Lease
shall be paid directly to the Indenture Trustee by bank wire
1
transfer in accordance with separate written instructions given from
time to time by the Indenture Trustee in such manner that on the date
on which any sums are due and payable, as of 10:00 A.M. (New York
City time), the Indenture Trustee shall be in actual receipt of
immediately available funds;
(iv) Foodmaker shall deliver to the Indenture Trustee
duplicate originals of all notices and other instruments which
Foodmaker may deliver pursuant to the Master Lease (and no payment of
such sums referred to in clause (iii) or delivery of such notices or
other instruments by Foodmaker shall be of any force or effect
unless, with respect to payments, paid in accordance with written
instructions from Indenture Trustee and, with respect to notices,
delivered to Owner and the Indenture Trustee as provided above);
(v) the Indenture Trustee may give any notice to
Foodmaker that may be given by Owner under the Master Lease and
Foodmaker shall not pay any Basic Rent, Special Rent, Additional
Rent, Special Sinker Rent or Purchase Price or any other amounts
payable under the Master Lease prior to such payment's scheduled due
date under the Master Lease;
(vi) any notice, approval, estoppel, consent or other
delivery purportedly delivered to or given (or deemed delivered or
given) by or on behalf of Owner to Foodmaker pursuant to the Master
Lease shall be of no force or effect unless in writing and executed
by the Indenture Trustee;
(vii) Foodmaker shall not enter into any agreement
subordinating (except as expressly permitted by the terms of any
Memorandum of Lease, as in effect on the date hereof) or terminating
the Master Lease without the prior written consent of the Indenture
Trustee, and any such attempted subordination or termination without
such consent shall be void;
(viii) Foodmaker shall not enter into any amendment or
modification of the Master Lease without the prior written consent of
the Indenture Trustee and any such attempted amendment or
modification without such consent shall be void;
(ix) subject to the foregoing, if the Master Lease shall
be amended, it shall continue to be subject to the provisions of the
Assignment without the necessity of any further act by Owner,
Foodmaker, or the Indenture Trustee;
(x) Foodmaker shall not take any action to terminate,
rescind or avoid the Master Lease, notwithstanding, to the fullest
extent permitted by law, any assignment for the benefit of creditors,
bankruptcy, arrangement, insolvency, reorganization, liquidation,
dissolution or other debtor-relief
2
proceeding affecting Owner or any assignee of Owner and
notwithstanding any action with respect to the Master Lease which may
be taken by an assignee, trustee or receiver of Owner or of any such
assignee or by any court in any such proceedings; and
(xi) if Foodmaker shall purchase Owner's interest in any
one or more Properties pursuant to the terms of the Master Lease,
Foodmaker shall accept an instrument conveying such interest which is
executed and delivered by the Indenture Trustee, pursuant to its
power of attorney contained in the Assignment and each of the Note
Mortgages.
Foodmaker acknowledges that Assignee and the Indenture
Trustee are express third party beneficiaries of Foodmaker's agreements
contained herein.
Foodmaker's obligations and agreements hereunder shall be
governed by the laws of the State of California.
Executed as of December 15, 1993.
FOODMAKER, INC., a Delaware
corporation
By: WILLIAM F. MOTTS
--------------------
Name: William F. Motts
Its: Vice President
By: LEO MOMSEN
--------------------
Name: Leo Momsen
Its: Assistant Secretary
3
SCHEDULE 1
Addresses For Notice
If to Owner: CRC-I Limited Partnership
c/o Foodmaker, Inc.
9330 Balboa Avenue
San Diego, California 92123
Attn: Mr. Charles Duddles
Telecopier: (619) 694-1543
If to Assignee: FM 1993A Corp.
c/o Foodmaker, Inc.
9330 Balboa Avenue
San Diego, California 92123
Attn: Mr. Charles Duddles
Telecopier: (619) 694-1543
If to the Indenture Trustee: State Street Bank & Trust Company
Joseph Palmer Building
Corporate Trust Department
Fifth Floor
One Heritage Drive
North Quincy, Massachusetts 02171
Attn: Andrew Sinasky
Telecopier: (617) 985-3034
If to Foodmaker: Foodmaker, Inc.
9330 Balboa Avenue
San Diego, California 92123
Attn: Real Estate/Legal
Telecopier: (619) 694-1543
CRC-II
Location: ____________________
State: ______________________
Recording Requested By
And When Recorded Mail To:
State Street Bank and Trust
Company
One Heritage Drive
North Quincy, Massachusetts 02171
Attn: Andrew Sinasky
_______________________________________________________________________
(Space above line for Recorder's use)
ASSIGNMENT OF LESSOR'S INTEREST IN LEASES
The Company also entered into an Assignment Of Lessor's Interest In Leases with
CRC-II substantially identical to the CRC-I Assignment of Lessor's Interst In
Leases differing only as to the properties involved. A summary of material
differences follows:
1. References to CRC-I are changed to CRC-II.
2. References to CRC-II are changed to CRC-I.
3. The amount of the Promissory Note known as the "Mortgage Note" is
$30,172,952 in CRC-I and $39,827,048 in CRC-II.
4. The amount of the Promissory Note known as the "Other Mortgage Note" is
$39,827,048 in CRC-I and $30,172,952 in CRC-II.