Exhibit 4.3
THIS INSTRUMENT PREPARED BY
AND AFTER RECORDING RETURN TO:
CARSON LEONARD, ESQ.
ALSTON & BIRD LLP
90 PARK AVENUE
NEW YORK, NEW YORK 10016
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS ("Assignment") is made as of March 30,
2007, by RAMCO JACKSONVILLE LLC, a Delaware limited liability company
("Assignor") to JPMORGAN CHASE BANK, N.A., a national banking association
("Assignee").
Assignor, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, does hereby GRANT, SELL, CONVEY, ASSIGN,
TRANSFER, SET OVER AND DELIVER to Assignee the entire lessor's interest in and
to all current and future leases and other agreements affecting the use,
enjoyment, or occupancy of all or any part of the "Property" (as defined in the
Mortgage, which is defined below; such "Property" is referred to herein as the
"Mortgaged Property"), which Mortgaged Property includes that certain lot or
piece of land, more particularly described in Exhibit A annexed hereto and made
a part hereof.
TOGETHER WITH all other leases and other agreements affecting the use,
enjoyment or occupancy of any part of the Mortgaged Property now or hereafter
made affecting the Mortgaged Property or any portion thereof, together with any
extensions or renewals of the same (all of the leases and other agreements
described above together with all other present and future leases and present
and future agreements and any extension or renewal of the same are hereinafter
collectively referred to as the "Leases");
TOGETHER WITH all rents, income, issues, revenues and profits arising from
the Leases and renewals thereof and together with all rents, income, issues and
profits from the use, enjoyment and occupancy of the Mortgaged Property
(including, but not limited to, minimum rents, additional rents, percentage
rents, deficiency rents, security deposits, room revenues and liquidated damages
following default under any Leases, all proceeds payable under any policy of
insurance covering loss of rents resulting from untenantability caused by damage
to any part of the Mortgaged Property, all of Assignor's rights to recover
monetary amounts from any Lessee (as hereinafter defined) in bankruptcy
including, without limitation, rights of recovery for use and occupancy and
damage claims arising out of Lease defaults, including rejection of a Lease,
together with any sums of money that may now or at any time hereafter be or
become due and payable to Assignor by virtue of any and all royalties,
overriding royalties, bonuses, delay rentals and any other amount of any kind or
character arising under any and all present and all future oil, gas and mining
Leases covering the Mortgaged Property or any part thereof, and all proceeds and
other amounts paid or owing to Assignor under or pursuant to any and all
contracts and bonds
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Proper documentary stamp taxes and intabngible taxes have been paid on the
obligations secured hereby, as described in the Mortgage referred to on page 2
of this instrument.
relating to the construction, erection or renovation of the Mortgaged Property)
(all of the rights described above hereinafter collectively referred to as the
"Rents").
THIS ASSIGNMENT is made for the purposes of securing:
A. The payment of the Debt as defined in that certain Amended and Restated
Fixed Rate Note made by Assignor to Assignee, dated as of the date hereof, in
the principal sum of $110,000,000 (as the same may be amended, restated,
extended, or otherwise modified from time to time, the "Note"), and secured by
that certain Amended and Restated Mortgage, Assignment of Leases and Rents,
Security Agreement and Fixture Filing of even date herewith made and given by
Assignor for the benefit of Assignee covering the Mortgaged Property recorded in
Official Records Book _____, Page ____, public records of Duval County, Florida
(as the same may be amended, restated, extended, or otherwise modified from time
to time, the "Mortgage").
B. The performance and discharge of each and every obligation, covenant and
agreement of Assignor contained herein and in the other Loan Documents (as
defined in the Note).
ASSIGNOR hereby represents, warrants and covenants to Assignee as follows:
1. Assignor Warranties.
Assignor warrants to Assignee that (a) Assignor is the sole owner of the
entire lessor's interest in the Leases; (b) the Leases are valid, enforceable
and in full force and effect and have not been altered, modified or amended in
any manner whatsoever except as disclosed to Assignee; (c) neither the Leases
nor the Rents reserved in the Leases have been assigned or otherwise pledged or
hypothecated; (d) none of the Rents have been collected for more than one (1)
month in advance; (e) Assignor has full power and authority to execute and
deliver this Assignment and the execution and delivery of this Assignment has
been duly authorized and does not conflict with or constitute a default under
any law, judicial order or other agreement affecting Assignor or the Mortgaged
Property; (f) except as otherwise disclosed to Lender by delivery of Leases,
estoppels, the rent roll or other written disclosure, the premises demised under
the Leases have been completed and Lessees under the Leases have accepted the
same and have taken possession of the same on a rent paying basis; (g) there
exist no offsets or defenses to the payment of any portion of the Rents; (h) no
Lease contains any option to purchase, or right of first refusal to lease or
purchase, the Mortgaged Property, other than Starbucks, which right of first
refusal applies solely to a sale of the parcel it occupies; and (i) to
Borrower's knowledge, no party under any Lease is in default.
2. Assignor Covenants:
(A) Assignor covenants with Assignee that Assignor (a) shall observe
and perform all the obligations imposed upon the lessor under the Leases and
shall not do or permit to be done anything to impair the value of the Leases as
security for the Debt; (b) shall promptly send to Assignee copies of all notices
of default which Assignor shall receive under the Leases; (c) shall not collect
any Rents more than one (1) month in advance; (d) shall not execute any other
assignment of lessor's interest in the Leases or the Rents; (e) shall execute
and deliver at the request of Assignee all such further assurances,
confirmations and assignments in connection
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with the Mortgaged Property as Assignee shall from time to time require; (f)
shall not enter into any new lease of the Mortgaged Property without the prior
written consent of Assignee (unless such new Lease satisfies the Approval
Conditions described below), and in any event, any new Lease shall be on a form
of lease approved by Assignee, or any other commercially reasonable form; (g)
shall deliver to Assignee, upon request, tenant estoppel certificates from each
commercial Lessee at the Mortgaged Property in form and substance reasonably
satisfactory to Assignee (provided, however, that Assignor shall not be required
to deliver such certificates more frequently than one (1) time in any calendar
year); and (h) shall deliver to Assignee, at Assignee's request, executed copies
of all Leases now existing or hereafter arising. Lender shall execute and
deliver a Subordination Non-Disturbance and Attornment Agreement on Lender's
then current form to tenants under future Leases promptly upon request with such
commercially reasonable changes as may be requested by tenants, from time to
time, and which are reasonably acceptable to Lender.
(B) Assignor further covenants with Assignee that, except to the
extent that Assignor is acting in the ordinary course of business as a prudent
operator of property similar to the Mortgaged Property, Assignor (a) shall
promptly send to Assignee copies of all notices of default which Assignor shall
send to Lessees under the Leases; (b) shall enforce all of the terms, covenants
and conditions contained in the Leases upon the part of the Lessees thereunder
to be observed or performed, short of termination thereof; (c) subject to
Section 3 hereof, shall not alter, modify or change the terms of the Leases
without the prior written consent of Assignee, or cancel or terminate the Leases
or accept a surrender thereof or take any other action which would effect a
merger of the estates and rights of, or a termination or diminution of the
obligations of, Lessees thereunder, provided however, that any Lease may be
canceled if at the time of cancellation thereof a new Lease is entered into on
substantially the same terms or more favorable terms as the canceled Lease; (d)
subject to Section 3 hereof, shall not alter, modify, change or consent to the
alteration, modification or change of the terms of any guaranty of any of the
Leases or cancel, terminate or consent to the cancellation or termination of any
such guaranty without the prior written consent of Assignee; (e) subject to
Section 3 hereof, shall not consent to any assignment of or subletting under the
Leases not in accordance with their terms, without the prior written consent of
Assignee; and (f) subject to Section 3 hereof, shall not waive, release, reduce,
discount or otherwise discharge or compromise the payment of any of the Rents to
accrue under the Leases.
(C) Intentionally omitted.
In the event Assignor requests approval of a Lease, or any termination,
amendment, modification, extension or renewal of any Lease, requiring Assignee's
approval hereunder, and Assignor's correspondence from the Assignor to Assignee
requesting such approval contains a bold-faced conspicuous legend at the top of
the first page thereof stating that "IF YOU FAIL TO RESPOND TO OR TO EXPRESSLY
DENY THIS REQUEST FOR APPROVAL IN WRITING WITHIN TEN (10) BUSINESS DAYS, YOUR
APPROVAL SHALL BE DEEMED GIVEN," then if Assignee shall fail to respond to or
expressly deny such request for approval in writing within ten (10) Business
Days after receipt of Assignor's written request therefor, then Assignee shall
be deemed to have approved such Lease, or termination, amendment, modification,
extension or renewal of any Lease, as the case may be. Any request for approval
of a Lease, or termination, amendment, modification, extension or renewal of any
Lease
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requiring approval as set forth above shall be made to Assignee in writing and
together with such request Assignor shall furnish to Assignee: (i) such
biographical and financial information about the proposed tenant and any
guarantor of such proposed Lease as Assignee may reasonably require, (ii) a copy
of the proposed form of Lease (or amendment, modification, extension or
renewal), and (iii) a summary of the material terms of such proposed Lease (or
amendment or modification, extension or renewal) including, without limitation,
rental terms and the term of the proposed Lease and any options.
(D) Assignor further covenants with Assignee that Assignor shall not
willfully withhold from Assignee any information regarding renewal, extension,
amendment, modification, waiver of provisions of, termination, rental reduction
of, surrender of space of, or shortening of the term of, any Lease during the
term of the Loan. Assignor further agrees to provide Assignee with written
notice of a Lessee "going dark" under such Lessee's Lease within ten (10)
business days after such Lessee "goes dark" in the event the same is a default
under such Lease or shall cause a default under any other Lease.
(E) Assignor further covenants with Assignee that Assignor shall
notify Assignee in writing, within two (2) Business Days following receipt
thereof, of Assignor's receipt of any early termination fee or payment or other
termination fee or payment paid by any Lessee under any Lease, and Assignor
further covenants and agrees that Assignor shall hold any such termination fee
or payment in trust for the benefit of Assignee and that any use of such
termination fee or payment shall be subject in all respects to Assignee's prior
written consent in Assignee's sole discretion (which consent may include,
without limitation, a requirement by Assignee that such termination fee or
payment be placed in reserve with Assignee to be disbursed by Assignee for
tenant improvement and leasing commission costs with respect to the Property
and/or for payment of the Debt or otherwise in connection with the Loan
evidenced by the Note and/or the Property, as so determined by Assignee).
Notwithstanding anything herein to the contrary, in lieu of holding any such
termination fee or payment in trust for the benefit of Assignee, Assignor may,
at Assignor's option, provide a guaranty from Ramco-Gershenson, L.P., a Delaware
limited partnership, or such other entity satisfactory to Lender, in a form
substantially similar to the form attached to the Mortgage as Exhibit D.
3. Approval Conditions.
Notwithstanding anything to the contrary contained herein, and provided
that no Event of Default (as defined in the Mortgage) shall exist and be
continuing, the following terms and provisions shall apply (the "Approval
Conditions"):
Assignee's consent shall not be required for amendments, modifications,
extensions, terminations of existing Leases or for execution of any new Lease of
space at the Mortgaged Property or the renewal of any existing Lease unless (i)
the Lease to be amended, modified, extended terminated, executed or renewed
demises space which is more than fifty thousand (50,000) square feet of the
Mortgaged Property, and (ii) the Debt Service Coverage Ratio (as defined in the
Mortgage), at the time of such amendment, modification, extension or termination
of such Lease, is less than 1.20 to 1.00.
THIS ASSIGNMENT is made on the following terms, covenants and conditions:
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1. Present Assignment. Assignor does hereby absolutely and unconditionally
assign to Assignee all of Assignor's right, title and interest in all current
and future Leases and Rents, it being intended by Assignor that this assignment
constitute a present, absolute assignment and not an assignment for additional
security only. Such assignment to Assignee shall not be construed to bind
Assignee to the performance of any of the covenants, conditions, or provisions
contained in any of the Leases or otherwise to impose any obligation upon
Assignee. Assignor agrees to execute and deliver to Assignee such additional
instruments, in form and substance satisfactory to Assignee, as may hereinafter
be requested by Assignee to further evidence and confirm said assignment.
Assignee is hereby granted and assigned by Assignor the right to enter the
Mortgaged Property for the purpose of enforcing its interest in the Leases and
the Rents, this Assignment constituting a present, absolute and unconditional
assignment of the Leases and Rents. Nevertheless, subject to the terms of this
paragraph, Assignee grants to Assignor a revocable license to operate and manage
the Mortgaged Property and to collect the Rents. Assignor shall hold the Rents,
or a portion thereof sufficient to discharge all current sums due on the Debt
for use in the payment of such sums. Upon an Event of Default (as defined in the
Mortgage), the license granted to Assignor herein shall automatically be revoked
and Assignee shall immediately be entitled to receive and apply all Rents,
whether or not Assignee enters upon and takes control of the Mortgaged Property.
Assignor hereby grants and assigns to Assignee the right, at its option, upon
the revocation of the license granted herein to enter upon the Mortgaged
Property in person, by agent or by court appointed receiver to collect the
Rents. Any Rents collected after the revocation of the license herein granted
may be applied toward payment of the Debt in such priority and proportion as
Assignee, in its discretion, shall deem proper.
2. Remedies of Assignee. Upon and during the continuance of an Event of
Default, Assignee may, at its option, without waiving such Event of Default,
without notice and without regard to the adequacy of the security for the Debt,
either in person or by agent, with or without bringing any action or proceeding,
or by a receiver appointed by a court, take possession of the Mortgaged Property
and have, hold, manage, lease and operate the Mortgaged Property on such terms
and for such period of time as Assignee may deem proper and either with or
without taking possession of the Mortgaged Property in its own name, demand, sue
for or otherwise collect and receive all Rents, 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 Assignee and
may apply the Rents to the payment of the following in such order and proportion
as Assignee in its sole discretion may determine, any law, custom or use to the
contrary notwithstanding: (a) all expenses of managing and securing the
Mortgaged Property, including, without being limited thereto, the salaries, fees
and wages of a managing agent and such other employees or agents as Assignee may
deem necessary or desirable and all expenses of operating and maintaining the
Mortgaged Property, including, without being limited thereto, all taxes,
charges, claims, assessments, water charges, sewer rents and any other liens,
and premiums for all insurance which Assignee may deem necessary or desirable,
and the cost of all alterations, renovations, repairs or replacements, and all
expenses incident to taking and retaining possession of the Mortgaged Property;
and (b) the Debt, (including all costs and attorneys' fees). In addition to the
rights which Assignee may have herein, upon the occurrence and during the
continuance of an Event of Default Assignee, at its option, may either require
Assignor to pay monthly in advance to Assignee, or any receiver appointed to
collect the Rents, the fair and reasonable rental value for the use and
occupation of such part of the Mortgaged Property as may be in possession of
Assignor or may require Assignor to vacate and surrender possession of the
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Mortgaged Property to Assignee or to such receiver and, in default thereof,
Assignor may be evicted by summary proceedings or otherwise. For purposes of
Paragraphs 1 and 2, Assignor grants to Assignee its irrevocable power of
attorney, coupled with an interest, to take any and all of the aforementioned
actions and any or all other actions designated by Assignee for the proper
management and preservation of the Mortgaged Property. The exercise by Assignee
of the option granted it in this paragraph and the collection of the Rents and
the application thereof as herein provided shall not be considered a waiver of
any Event of Default under any of the Loan Documents.
3. No Liability of Assignee. Assignee shall not be liable for any loss
sustained by Assignor resulting from any Indemnified Party's failure to let the
Mortgaged Property after an Event of Default or from any other act or omission
of Assignee in managing the Mortgaged Property after an Event of Default unless
such loss is caused by the willful misconduct or gross negligence of Assignee.
Assignee shall not be obligated to perform or discharge any obligation, duty or
liability under the Leases or under or by reason of this Assignment, and
Assignor shall, and hereby agrees, to indemnify the Indemnified Parties (as such
term is defined herein) for, and to hold the Indemnified Parties harmless from,
any and all liability, loss or damage which may or might be incurred under the
Leases or under or by reason of this Assignment and from any and all claims and
demands whatsoever, including the defense of any such claims or demands which
may be asserted against any Indemnified Party by reason of any alleged
obligations and undertakings on its part to perform or discharge any of the
terms, covenants or agreements contained in the Leases, except to the extent
such liability or loss was caused by or resulted from the negligent or grossly
negligent acts of an Indemnified Party. Should any Indemnified Party incur any
such liability, the amount thereof, including costs, expenses and reasonable
attorneys' fees, shall be secured hereby and by the Loan Documents and Assignor
shall reimburse such Indemnified Party therefor immediately upon demand and upon
Assignor's failure to do so, such Indemnified Party may, at its option, exercise
any and all remedies available to such Indemnified Party hereunder and under the
other Loan Documents. This Assignment shall not operate to place any obligation
or liability for the control, care, management or repair of the Mortgaged
Property upon any Indemnified Party, nor for the carrying out of any of the
terms and conditions of the Leases; nor shall it operate to make any Indemnified
Party responsible or liable for any waste committed on the Mortgaged Property,
including without limitation the presence of any Hazardous Substances, (as
defined in the Environmental Agreement, which is defined in the Note), or for
any negligence in the management, upkeep, repair or control of the Mortgaged
Property resulting in loss or injury or death to any Lessee, licensee, employee
or stranger. Assignee, its successors, assigns and their respective
shareholders, directors, officers, employees, and agents are each an
"Indemnified Party" and, collectively, the "Indemnified Parties".
4. Notice to Lessees. Assignor hereby authorizes and directs Lessees named
in the Leases or any other or future Lessees or occupants of the Mortgaged
Property (the "Lessees") upon receipt from Assignee of written notice to the
effect that Assignee is then the holder of the Note and that an Event of Default
exists thereunder or under the other Loan Documents to pay over to Assignee all
Rents and to continue so to do until otherwise notified by Assignee, without
further notice or consent of Assignor and regardless of whether Assignee has
taken possession of the Mortgaged Property, and Lessees may rely upon any
written statement delivered by Assignee to Lessees without any obligation or
right to inquire as to whether such default actually exists and notwithstanding
any notice from or claim of Assignor to the contrary. Assignor further
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agrees that it shall have no right to claim against any of Lessees for any such
Rents so paid by Lessees to Assignee and that Assignee shall be entitled to
collect, receive and retain all Rents regardless of when and to whom such Rents
are and have been paid and regardless of the form or location of such Rents. Any
such payment to Assignee shall constitute payment to Assignor under the Leases,
and Assignor appoints Assignee as Assignor's lawful attorney in fact for giving,
and Assignee is hereby empowered to give, acquittances to any Lessee for such
payment to Assignee after an Event of Default. Any Rents held or received by
Assignor after a written request from Assignee to Lessees for the payment of
Rents shall be held or received by Assignor as trustee for the benefit of
Assignee only.
5. Rental Offsets. If Assignor becomes aware that any Lessee proposes to
do, or is doing, any act or thing which may give rise to any right of set off
against Rent, Assignor shall (i) take such steps as shall be reasonably
calculated to prevent the accrual of any right to a set off against Rent, (ii)
notify Assignee thereof and of the amount of said set offs, and (iii) within ten
(10) days after such accrual for a valid set off, reimburse Lessee who shall
have acquired such right to set off or take such other steps as shall
effectively discharge such set off and as shall effectively assure that Rents
thereafter due shall continue to be payable without set off or deduction.
6. Security Deposits. All security deposits of Lessees, whether held in
cash or any other form, shall be deposited in Assignor's accounts and the amount
thereof separately reserved in such accounts (and not distributed by Assignor to
its members or other beneficial owners, or used for expenditures). Any bond or
other instrument which Assignor is permitted to hold in lieu of cash security
deposits under applicable legal requirements (i) shall be maintained in full
force and effect unless replaced by cash deposits as hereinabove described, (ii)
shall be issued by an entity reasonably satisfactory to Assignee, (iii) shall,
if permitted pursuant to legal requirements, name Assignee as payee or
beneficiary thereunder (or at Assignee's option, subject to applicable Assignor
requirements, be fully assignable to Assignee), (iv) shall, if such instrument
is a letter of credit and if so required by Lender, be reissued, naming Assignee
as beneficiary, and (v) shall, in all respects, comply with applicable legal
requirements and otherwise be reasonably satisfactory to Assignee. Assignor
shall, upon request, provide Assignee with evidence reasonably satisfactory to
Assignee of Assignor's compliance with the foregoing. Following the occurrence
and during the continuance of any Event of Default, Assignor shall, upon
Assignee's request, if permitted by applicable legal requirements, turn over to
Assignee the security deposits (and any interest theretofore earned thereon)
with respect to all or any portion of the Mortgaged Property, to be held by
Assignee subject to the terms of the Leases.
7. Intentionally Omitted.
8. Other Security. Assignee may take or release other security for the
payment of the Debt, may release any party primarily or secondarily liable
therefor and may apply any other security held by it to the reduction or
satisfaction of the Debt without prejudice to any of its rights under this
Assignment.
9. Other Remedies. Nothing contained in this Assignment and no act done or
omitted by Assignee pursuant to the power and rights granted to Assignee
hereunder shall be deemed to be a waiver by Assignee of its rights and remedies
under the other Loan Documents
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and this Assignment is made and accepted without prejudice to any of the rights
and remedies possessed by Assignee under the terms thereof. The right of
Assignee to collect the Debt and to enforce any other security therefor held by
it may be exercised by Assignee either prior to, simultaneously with, or
subsequent to any action taken by it hereunder.
10. No Mortgagee in Possession. Nothing herein contained shall be construed
as constituting Assignee a "mortgagee in possession" in the absence of the
taking of actual possession of the Mortgaged Property by Assignee. In the
exercise of the powers herein granted Assignee, no liability shall be asserted
or enforced against Assignee, all such liability being expressly waived and
released by Assignor.
11. No Oral Change. This Assignment may not be modified, amended, waived,
extended, changed, discharged or terminated orally, or by any act or failure to
act on the part of Assignor or Assignee, but only by an agreement in writing
signed by the party against whom the enforcement of any modification, amendment,
waiver, extension, change, discharge or termination is sought.
12. Certain Definitions. Unless the context clearly indicates a contrary
intent or unless otherwise specifically provided herein, words used in this
Assignment may be used interchangeably in singular or plural form and the word
"Assignor" shall mean "each Assignor and any subsequent owner or owners of the
Mortgaged Property or any part thereof or any interest therein," the word
"Assignee" shall mean "Assignee and any subsequent holder of the Note," the word
"person" shall include an individual, corporation, partnership, trust,
unincorporated association, government, governmental authority, and any other
entity, the words "Mortgaged Property" shall include any portion of the
Mortgaged Property and any interest therein; whenever the context may require,
any pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice versa.
13. Non Waiver. The failure of Assignee to insist upon strict performance
of any term hereof shall not be deemed to be a waiver of any term of this
Assignment. Assignor shall not be relieved of Assignor's obligations hereunder
by reason of (a) failure of Assignee to comply with any request of Assignor or
any other party to take any action to enforce any of the provisions hereof or of
the other Loan Documents, (b) the release regardless of consideration, of the
whole or any part of the Mortgaged Property, or (c) any agreement or stipulation
by Assignee extending the time of payment or otherwise modifying or
supplementing the terms of this Assignment or the other Loan Documents. Assignee
may resort for the payment of the Debt to any other security held by Assignee in
such order and manner as Assignee, in its discretion, may elect. Assignee may
take any action to recover the Debt, or any portion thereof or to enforce any
covenant hereof without prejudice to the right of Assignee thereafter to enforce
its rights under this Assignment. The rights of Assignee under this Assignment
shall be separate, distinct and cumulative and none shall be given effect to the
exclusion of the others. No act of Assignee shall be construed as an election to
proceed under any one provision herein to the exclusion of any other provision.
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14. Inapplicable Provisions. If any term, covenant or condition of this
Assignment is held to be invalid, illegal or unenforceable in any respect, this
Assignment shall be construed without such provision.
15. Counterparts. This Assignment may be executed in any number of
counterparts each of which shall be deemed to be an original but all of which
when taken together shall constitute one agreement.
16. GOVERNING LAW; JURISDICTION. THIS ASSIGNMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE REAL PROPERTY
ENCUMBERED BY THE MORTGAGE IS LOCATED, WITHOUT REGARD TO CONFLICT OF LAW
PROVISIONS THAT WOULD OTHERWISE REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION, AND THE APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. ASSIGNOR
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT OF COMPETENT
JURISDICTION LOCATED IN THE STATE IN WHICH THE REAL PROPERTY ENCUMBERED BY THE
MORTGAGE IS LOCATED IN CONNECTION WITH ANY PROCEEDING ARISING OUT OF OR RELATING
TO THIS ASSIGNMENT.
17. Successors and Assigns. Assignor may not assign its rights under this
Assignment. Assignor hereby acknowledges and agrees that Assignee may assign
this Assignment without Assignor's consent. 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.
18. Termination of Assignment. Upon payment in full of the Debt and the
delivery and recording of a satisfaction, release or discharge of the Mortgage
duly executed by Assignee, this Assignment shall become and be void and of no
effect.
19. Waiver of Right to Trial by Jury. ASSIGNOR AND ASSIGNEE HEREBY AGREE
NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES
ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR
HEREAFTER EXIST WITH REGARD TO THIS ASSIGNMENT, THE MORTGAGE, OR THE OTHER LOAN
DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY ASSIGNOR, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE
AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.
EACH PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY
PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY THE OTHER PARTY.
20. Limitation on Liability. This Assignment is a Loan Document, as defined
in the Note, to which the provisions of Section 12 of the Note apply and are
hereby incorporated in full herein by this reference, including those provisions
providing for the limitation on the personal liability of the Assignor and other
persons under the Loan Documents.
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21. Notice. Any notice, demand, statement, request or consent made
hereunder shall be made in accordance with the notice provision of Section 34 of
the Mortgage.
22. Florida Law. The assignment of rents contained in this Assignment is
intended to and does constitute an assignment of rents as contemplated in
Florida Statutes Section 697.07. Upon the occurrence of an Event of Default,
Lender shall be entitled to the remedies provided in said Section 697.07, in
addition to all rights and remedies, whether procedural or substantive, in
effect at the time of execution or enforcement of the Mortgage and this
Assignment.
THIS ASSIGNMENT shall inure to the benefit of Assignee and any subsequent
holder of the Note and shall be binding upon Assignor, and Assignor's heirs,
executors, administrators, successors and assigns and any subsequent owner of
the Mortgaged Property.
(Signature Page Follows)
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Assignor has executed this instrument as of the day and year first above
written.
ASSIGNOR:
RAMCO JACKSONVILLE LLC, a Delaware
limited liability company
By: /s/ Richard J. Smith
------------------------------------
Name: Richard J. Smith
Title: Chief Financial Officer
Signed, sealed and delivered in the
presence of :
/s/ Kathleen Steed
- -------------------------------------
Witness
/s/ Alan Hurvitz
- -------------------------------------
Witness
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ACKNOWLEDGEMENT
STATE OF Michigan
COUNTY OF Oakland
The foregoing instrument was acknowledged before me this 27th day of March,
2007, by Richard J. Smith, the Chief Financial Officer of RAMCO Jacksonville
LLC, a limited liability company under the laws of the State of Delaware. He/she
is personally known to me or has produced ____________ (type of identification)
----------------------
as identification.
[SEAL] /s/ Janet L. Storhok
----------------------------------------
(Signature of person taking
acknowledgment)
Janet L. Storhok
Name typed, printed or stamped
Notary Public - Michigan
(Title or Rank)
----------------------------------------
(Serial Number, if any)
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EXHIBIT A
LEGAL DESCRIPTION
Parcel "A"
Lots 1, 2, 3, 4, 6, 7, 8, 13, 14, 15, 16, 17, 18 and Tracts B, E and F, RIVER
CITY MARKETPLACE, according to the plat thereof as recorded in Plat Book 60,
Pages 31 through 42, of the Public Records of Duval County, Florida.
Parcel "B"
LEGAL DESCRIPTION: RIVER CITY MARKETPLACE - LOT 9 REMAINDER
A TRACT OF LAND BEING A PORTION OF LOT 9, ACCORDING TO THE PLAT OF RIVER
CITY MARKETPLACE, AS RECORDED IN PLAT BOOK 60, ON PAGES 31 THROUGH 42 OF
THE PUBLIC RECORDS OF DUVAL COUNTY, FLORIDA AND LYING WITHIN SECTION 37,
TOWNSHIP 1 NORTH, RANGE 27 EAST, DUVAL COUNTY, FLORIDA AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHWEST CORNER OF AFORESAID LOT 9, FOR A POINT OF
REFERENCE; THENCE S19 degrees 46'39"W, ALONG THE WEST LINE OF SAID LOT 9,
FOR 44.50 FEET TO THE POINT OF BEGINNING; THENCE S70 degrees 13'21"E, FOR
407.80 FEET; THENCE S08 degrees 22'23"E, FOR 44.07 FEET; THENCE S19 degrees
46'39"W, FOR 82.58 FEET; THENCE S70 degrees 13'21"E, FOR 135.81 FEET TO A
POINT ON THE EAST LINE OF SAID LOT 9; THENCE ALONG SAID EAST LINE, THE
FOLLOWING TWO (2) COURSES: (1) THENCE S64 degrees 46'39"W, FOR 63.43
FEET;(2) THENCE S21 degrees 31'08"W, FOR 383.22 FEET TO THE SOUTHEAST
CORNER OF SAID LOT 9; THENCE ALONG THE SOUTH LINE OF SAID LOT 9, THE
FOLLOWING FIVE (5) COURSES: (1) THENCE S64 degrees 49'27"W FOR 118.93 FEET;
(2) THENCE N70 degrees 13'21"W, FOR 259.16 FEET; (3) THENCE S71 degrees
09'08"W, FOR 187.18 FEET; (4) THENCE S19 degrees 48'39"W, FOR 32.84 FEET;
(5) THENCE N70 degrees 13'22"W, FOR 30.34 FEET TO THE SOUTHWEST CORNER OF
SAID LOT 9; THENCE ALONG THE WEST LINE OF SAID LOT 9, THE FOLLOWING THREE
(3) COURSES: (1) THENCE N19 degrees 46'39"E, FOR 480.68 FEET; (2) THENCE
S70 degrees 13'21"E, FOR 12.00 FEET; (3) THENCE N19 degrees 46'39"E, FOR
302.36 FEET TO THE POINT OF BEGINNING
ALSO DESCRIBED AS
A PARCEL OF LAND BEING A PORTION OF SECTION 30, TOGETHER WITH A PORTION OF
SECTION 6 OF THE SUBDIVISION OF THE JOHN BROWARD GRANT, SECTION 37, TOWNSHIP 1
NORTH, RANGE 27 EAST, CITY OF JACKSONVILLE, DUVAL COUNTY, FLORIDA, DESCRIBED AS
ALL OF LOTS 1, 2, 3, 4, 6, 7, 8, PART OF 9, ALL OF LOTS 13, 14, 15, 16, 17, 18,
AND TRACTS B, E AND F, "RIVER CITY MARKETPLACE". ACCORDING TO THE PLAT THEREOF
AS RECORDED IN PLAT BOOK 60, PAGES 31 THROUGH 42, OF THE PUBLIC RECORDS OF DUVAL
COUNTY, FLORIDA, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
Proper documentary stamp taxes and intabngible taxes have been paid on the
obligations secured hereby, as described in the Mortgage referred to on page 2
of this instrument.
COMMENCING AT THE NORTHEAST CORNER OF SAID SECTION 6, THENCE ALONG THE EASTERLY
LINE OF SAID SECTION 6, S00 degrees 22'38"E 2568.19 FEET; THENCE S16 degrees
25'40"W 65.15 FEET; THENCE S73 degrees 37'14"E 59.99 FEET TO THE WESTERLY LINE
OF A CSX TRANSPORTATION RAILROAD (FORMERLY A SEABOARD COAST LINE RAILROAD, BEING
A 100 FOOT WIDE RIGHT-OF-WAY); THENCE ALONG SAID WESTERLY LINE, S16 degrees 25'
25"W 147.88 FEET (RECORDED AS 147.89 FEET) TO THE SOUTHERLY LINE OF A TEMPORARY
ACCESS EASEMENT AS RECORDED IN OFFICIAL RECORDS VOLUME 8770 ON PAGE 338 OF THE
PUBLIC RECORDS OF DUVAL COUNTY, FLORIDA (KNOWN AS AIRPORT CENTER DRIVE, 148 FEET
WIDE); THENCE ALONG THE SOUTHERLY LINE OF SAID EASEMENT THE FOLLOWING 3 COURSES:
(1) THENCE N73 degrees 34'04"W 728.80 FEET, AND (2) 1020.43 FEET ALONG A TANGENT
CURVE TO THE RIGHT (HAVING A CENTRAL ANGLE OF 43 degrees 50'49", A RADIUS OF
1333.42 FEET AND A CHORD BEARING N51 degrees 38'40"W 995.71 FEET) AND (3) THENCE
N29 degrees 43'15"W 361.31 FEET TO THE NORTHERNMOST CORNER OF LOT 19 OF SAID
"RIVER CITY MARKETPLACE" AND THE POINT OF BEGINNING: THENCE S60 degrees 16'45"W
651.77 FEET; THENCE N29 degrees 43'15"W 25.61 FEET; THENCE 221.46 FEET ALONG A
NON-TANGENT CURVE TO THE LEFT (HAVING A CENTRAL ANGLE OF 187 degrees 59' 05", A
RADIUS OF 67.50 FEET AND A CHORD BEARING N36 degrees 54'53"W 134.67 FEET);
THENCE N70 degrees 13'21"W 423.94 FEET; THENCE 36.03 FEET ALONG A NON-TANGENT
CURVE TO THE RIGHT, (HAVING A CENTRAL ANGLE OF 31 degrees 45'33", A RADIUS OF
65.00 FEET AND A CHORD BEARING N48 degrees 53'50" E 35.57 FEET; THENCE N64
degrees 46'39"E 118.25 FEET; THENCE N25 degrees 13'23"W 304.45 FEET; THENCE S64
degrees 46'39"W 115.94 FEET; THENCE N26 degrees 26'24"W 101.05 FEET; THENCE N36
degrees 12'01"W 79.37 FEET, THENCE 114.06 FEET ALONG A NON-TANGENT CURVE TO THE
LEFT (HAVING A CENTRAL ANGLE OF 21 degrees 17'43", A RADIUS OF 306.87 FEET AND A
CHORD BEARING S43 degrees 27'19"W 113.40 FEET); THENCE 124.58 FEET ALONG A
NON-TANGENT CURVE TO THE LEFT, (HAVING A CENTRAL ANGLE OF 05 degrees 29'03", A
RADIUS OF 1301.54 FEET AND A CHORD BEARING S28 degrees 02'21"W 124.53 FEET);
THENCE S19 degrees 46'39"W 902.79 FEET; THENCE S19 degrees 51'05"W 665.93 FEET
TO THE NORTHWESTERLY CORNER OF SAID LOT 9; THENCE S19 degrees 46'39"W 44.50
FEET; THENCE S70 degrees 13'21"E 407.78 FEET (RECORDED AS 407.80 FEET); THENCE
S08 degrees 22'23"E 44.07 FEET; THENCE S19 degrees 46'39"W 82.58 FEET; THENCE
S70 degrees 13'21"E 135.81 FEET; THENCE S64 degrees 46'39"W 63.43 FEET; THENCE
S21 degrees 31'08"W 383.22 FEET; THENCE S87 degrees 21'21"E 58.42 FEET; THENCE
63.09 FEET ALONG A TANGENT CURVE TO THE RIGHT, (HAVING A CENTRAL ANGLE OF 48
degrees 11'39", A RADIUS OF 75.00 FEET AND A CHORD BEARING S63 degrees 15'31"E
61.24 FEET); THENCE 9.36 FEET ALONG A COMPOUND CURVE TO THE RIGHT(HAVING A
CENTRAL ANGLE OF 21 degrees 27'34", A RADIUS OF 25.00 FEET AND A CHORD BEARING
S28 degrees 25'55"E 9.31 FEET); THENCE 57.03 FEET ALONG A COMPOUND CURVE TO THE
RIGHT (HAVING A CENTRAL ANGLE OF 09 degrees 20'09", A RADIUS OF 350.00 FEET AND
A CHORD BEARING S13 degrees 02' 03"E 56.97 FEET); THENCE 25.36 FEET ALONG A
REVERSE CURVE TO THE LEFT (HAVING A CENTRAL ANGLE OF 58 degrees 06'42", A RADIUS
OF 25,00 FEET AND A CHORD BEARING S37 degrees 25'20"E 24.28 FEET);THENCE S66
degrees 28'41"E 265.25 FEET; THENCE 147.54 FEET ALONG A TANGENT CURVE TO THE
RIGHT, (HAVING A CENTRAL ANGLE OF 88 degrees 59'05", A RADIUS OF 95.00 FEET AND
A CHORD BEARING S21 degrees 59'09"E 133.16 FEET); THENCE S22 degrees 30'24"W
229.87 FEET; THENCE 206.51 FEET ALONG A TANGENT CURVE TO THE LEFT, (HAVING A
CENTRAL ANGLE OF 08 degrees 36'18", A RADIUS OF 1375.00 FEET AND A CHORD BEARING
S18 degrees 12'15"W 206.31 FEET);THENCE 273.69 FEET ALONG A REVERSE CURVE TO THE
RIGHT (HAVING A CENTRAL ANGLE OF 15 degrees 40'53", A RADIUS OF 1000.00 FEET AND
A CHORD BEARING S21 degrees 44'32"W 272.84 FEET); THENCE 102.07 FEET ALONG A
COMPOUND CURVE TO THE RIGHT (HAVING A CENTRAL ANGLE OF 11 degrees 02'04", A
RADIUS OF 530,00 FEET AND A CHORD BEARING S35 degrees 06'01"W 101.91 FEET);
THENCE S40 degrees 37'03"W 149.81 FEET; THENCE 158.17 FEET ALONG A TANGENT CURVE
TO THE RIGHT, (HAVING A CENTRAL ANGLE OF 36 degrees 59'23", A RADIUS OF 245.00
FEET AND A CHORD BEARING S59 degrees 06'45"W 155.44 FEET) TO THE EAST BOUNDARY
OF PARCEL 3 OF THAT CERTAIN CONSERVATION EASEMENT AS RECORDED IN OFFICIAL
RECORDS VOLUME 8002, PAGE 1 OF THE PUBLIC RECORDS OF DUVAL COUNTY, FLORIDA;
THENCE ALONG SAID EAST BOUNDARY LINE THE FOLLOWING 16 COURSES: (1) THENCE N35
degrees 19'06"W 74.00 FEET; (2) THENCE N14 degrees 19'31"W 46.06 FEET; (3)
THENCE N55 degrees 52' 27"W 46.99 FEET; (4) THENCE N21 degrees 51'46"W 57.23
FEET; (5) THENCE N16 degrees 23'13"W 49.04 FEET; (6) THENCE N35 degrees 28'19"E
24.24 FEET; (7) THENCE N05 degrees 04'48"W 60.02 FEET;(8) THENCE N52 degrees
01'41"W 26.08 FEET; (9) THENCE N06 degrees 08'21"W 659.00 FEET; (10) THENCE N85
degrees 30' 33"W 602.61 FEET; (11) THENCE N73 degrees 36'25"W 83.05 FEET; (12)
THENCE N63 degrees 49'01"W 51.09 FEET; (13) THENCE N80 degrees 06'02"W 94.98
FEET; (14) THENCE S65 degrees 14'53"W 43.66 FEET; (15) THENCE S12 degrees
27'24"W 116.99 FEET; (16)THENCE
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N75 degrees 48'49"W 194.49 FEET TO THE EASTERLY LIMITED ACCESS LINE OF
INTERSTATE 95, STATE ROAD NO. 9 ACCORDING TO THE STATE OF FLORIDA, STATE ROAD
DEPARTMENT RIGHT-OF-WAY MAP, SECTION 72290-2401 (2402); THENCE ALONG SAID
EASTERLY LINE THE FOLLOWING 2 COURSES: (1) N14 degrees 10'21"E 140.65 FEET AND
(2) THENCE 241.95 FEET ALONG A TANGENT CURVE TO THE LEFT, (HAVING A CENTRAL
ANGLE OF 00 degrees 36'01", A RADIUS OF 23092.20 FEET AND A CHORD BEARING N13
degrees 52'03"E 241.95 FEET);THENCE S77 degrees 34'50"E 29.51 FEET; THENCE S65
degrees 17'30"E 36.71 FEET; THENCE S70 degrees 13'25"E 99.00 FEET; THENCE N19
degrees 46'33"E 93.00 FEET; THENCE S70 degrees 13'27"E 49.84 FEET; THENCE N19
degrees 46'39"E 19.99 FEET; THENCE N 70 degrees 13'21"W 12.00 FEET; THENCE N19
degrees 46'39"E 510.14 FEET; THENCE 31.42 FEET ALONG A TANGENT CURVE TO THE
LEFT, (HAVING A CENTRAL ANGLE OF 90 degrees 00'00", A RADIUS OF 20.00 FEET AND
A CHORD BEARING N25 degrees 13'21"W 28.28 FEET);THENCE N70 degrees 13'21"W
13.75 FEET; THENCE N19 degrees 46'39"E 265.90 FEET; THENCE N70 degrees 13'21"W
241.92 FEET TO THE SAID EASTERLY LIMITED ACCESS LINE OF INTERSTATE 95; THENCE
ALONG SAID LINE THE FOLLOWING 4 COURSES: (1) THENCE N13 degrees 43'24"E 93.27
FEET; (2) THENCE N18 degrees 54'39"E 1062.43 FEET; (3) THENCE N13 degrees 52'
08"E 627.99 FEET; AND (4) THENCE N56 degrees 03'43"E 285.41 FEET TO THE
SOUTHERLY RIGHT-OF-WAY-LINE OF DUVAL ROAD, STATE ROAD 110 (A RIGHT-OF-WAY OF
VARYING WIDTH); THENCE ALONG SAID SOUTHERLY LINE THE FOLLOWING 2 COURSES; (1)
THENCE N88 degrees 20'12"E 109.28 FEET AND (2) THENCE 350.95 FEET ALONG A
NON-TANGENT CURVE TO THE LEFT, (HAVING A CENTRAL ANGLE OF 10 degrees 00'16", A
RADIUS OF 2009.86 FEET AND A CHORD BEARING S88 degrees 57'41"E 350.50 FEET);
THENCE S04 degrees 04'10"E 200.07 FEET; THENCE N83 degrees 09'37"E 199.76
FEET; THENCE N03 degrees 59'58"W 200.00 FEET TO THE SAID SOUTHERLY LINE OF
DUVAL ROAD; THENCE ALONG SAID SOUTHERLY LINE OF DUVAL ROAD 191.12 FEET ALONG A
NON-TANGENT CURVE TO THE LEFT, (HAVING A CENTRAL ANGLE OF 05 degrees 26'54", A
RADIUS OF 2009.86 FEET AND A CHORD BEARING N77 degrees 34'32"E 191.05 FEET) TO
THE SOUTHEASTERLY LINE SAID TEMPORARY ACCESS EASEMENT KNOWN AS AIRPORT CENTER
DRIVE (148 FEET WIDE); THENCE ALONG SAID SOUTHEASTERLY LINE THE FOLLOWING 2
COURSES: (1) THENCE 1066.84 FEET ALONG A TANGENT CURVE TO THE RIGHT, (HAVING A
CENTRAL ANGLE OF 59 degrees 22'34", A RADIUS OF 1029.46 FEET AND A CHORD
BEARING S59 degrees 24'32"E 1019.74 FEET) AND (2) THENCE S29 degrees 43'15"E
450.11 FEET TO THE POINT OF BEGINNING.
TOGETHER WITH EASEMENTS FOR INGRESS AND EGRESS AND PARKING AS SET FORTH IN THE
ADOPTION AND DEDICATION ON THE PLAT OF RIVER CITY MARKETPLACE, AS RECORDED IN
PLAT BOOK 60, PAGES 31-42, AND ALSO AS SET FORTH IN ARTICLE II, SECTION 2.1, OF
THE MASTER AGREEMENT OF EASEMENTS, COVENANTS AND RESTRICTIONS RECORDED IN
OFFICIAL RECORDS BOOK 12185, PAGE 1660, AS AMENDED IN OFFICIAL RECORDS BOOK
12428, PAGE 1675, AND OFFICIAL RECORDS BOOK 13073, PAGE 626, ALL OF THE PUBLIC
RECORDS OF DUVAL COUNTY, FLORIDA.
TOGETHER WITH EASEMENTS FOR TAPPING INTO UTILITIES AS DESCRIBED IN PARAGRAPH
2.B. OF THAT CERTAIN POST CLOSING AGREEMENT RECORDED IN OFFICIAL RECORDS BOOK
12196, PAGE 602, OF THE PUBLIC RECORDS OF DUVAL COUNTY, FLORIDA.
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