ASSIGNMENT OF RENTS AND LEASES
WESTERN BEEF-STEINWAY STREET. INC.,
a New York corporation,
Assignor,
to
METLIFE CAPITAL FINANCIAL CORPORATION,
a Delaware corporation,
Assignee.
March 19, 1996
Location of Premises:
Address: 36- 12/32 Steinway Street and
38- 15/23 Northern Boulevard
City and State of New York
County and Borough of Queens
Section: 4
Block: 665
Lot: 5,7,31,34 & 38
Prepared by, recording
requested by, and when
recorded, return to:
Dorothea S. Costrini
HUNTER, MACLEAN, EXLEY & DUNN, P.C.
200 East Saint Julian Street
Savannah, Georgia 31401
MetLife Capital Financial Corporation
Loan No. 5901796-001
THIS ASSIGNMENT, made as of March 19, 1996, by Western Beef-Steinway
Street, Inc., a New York corporation, with a mailing address of 47-05
Metropolitan Avenue, Ridgewood, New York 11385 (hereinafter called "Assignor"),
in favor of METLIFE CAPITAL FINANCIAL CORPORATION, a Delaware corporation, with
a mailing address of Real Estate Department, 10900 Northeast Fourth Street,
Suite 500, Bellevue, Washington 98004 (hereinafter called "METLIFE").
WITNESSETH:
Assignor, for good and valuable consideration, the receipt of which
is hereby acknowledged, does hereby absolutely and unconditionally grant,
bargain, sell, transfer, assign, convey, set over and deliver unto METLIFE all
right, title and interest of Assignor in. to and under all written and oral
leases and rental agreements of the real estate described in Exhibit A attached
hereto and incorporated herein ("Property"), whether now in existence or
hereafter entered into, and all guaranties, amendments, extensions, renewals and
subleases of said leases and any of them, all of which are hereinafter called
the "Leases," all rents, income and profits which may now or hereafter be or
become due or owing under the Leases, and any of them, or on account of the use
of the Property, any award hereafter made in any bankruptcy. insolvency or
reorganization proceeding in any state or federal court involving any of the
tenants of the Leases, and any and all payments made by such tenants in lieu of
rent.
This Assignment is made for the purpose of securing:
A. The payment of the indebtedness (including any extensions or
renewals thereof) evidenced by a certain Amended and Restated
Note ("Note") of Assignor of even date herewith in the principal
sum of Three Million Dollars ($3,000,000) and secured by a
certain Amended and Restated Mortgage ("Mortgage") of even date
herewith encumbering the Property: and
B. The payment of all other sums with interest thereon becoming due
and payable to METLIFE under the provisions of the Mortgage and
any other instrument constituting security for the Note; and
C. The performance and discharge of each and every term, covenant
and condition contained in the Note. Mortgage and any other
instrument constituting security for the Note.
Assignor represents, warrants, covenants and agrees with METLIFE as
follows:
1. The sole ownership of the entire lessors interest in the Leases
is or shall be vested in Assignor, and Assignor has not, and
shall not, perform any acts or execute any other instruments
which might prevent METLIFE from filly exercising its rights
under any of the terms, covenants and conditions of this
Assignment.
2. The Leases are and shall be valid and enforceable in accordance
with their terms and have not been altered, modified, amended,
terminated, canceled, renewed or surrendered nor have any of the
terms and conditions thereof been waived in any manner
whatsoever except as approved in writing by METLIFE.
3; Assignor shall not materially alter the term or the amount of
rent payable or the term of any Lease without notice to METLIFE
and METLIFE's consent.
4. To the best of Assignor's knowledge, there are no defaults now
existing under any of the Leases, and there exists no state of
facts which, with the giving of notice or lapse of time or both,
would constitute a default under any of the Leases.
5. Assignor shall give prompt notice to METLIFE of any notice
received by Assignor claiming that a default has occurred under
any of the Leases on the part of Assignor. together with a
complete copy of any such notice.
6. Each of the Leases shall remain in full force and effect
irrespective of any merger of the interest of lessor and any
lessee under any of the Leases.
7. Assignor will not permit any Lease to become subordinate to any
lien other than the lien of the Mortgage.
8. All existing Leases are described on Exhibit B attached hereto
and incorporated herein. Assignor has delivered to Assignee
true and correct copies of all existing Leases and all
amendments and modifications thereto.
The parties further agree as follows:
This Assignment is an absolute, present assignment from Assignor to
METLIFE, effective immediately, and is not merely an assignment for security
purposes. Notwithstanding the foregoing, until a notice is sent to the Assignor
in writing that an Event of Default (as defined in the Note and/or Mortgage) has
occurred under the terms and conditions of the Note or any other instrument
constituting additional security for the Note (which notice is hereafter called
a "Notice"). Assignor is panted a license to receive, collect and enjoy the
rents, income and profits accruing from the Property.
If an Event of Default (as defined in the Note and Mortgage) shall
occur, METLIFE may, at its option, after service of a Notice, receive and
collect all such rents, income and profits as they become due, from the
Property. METLIFE shall thereafter continue to receive and collect all such
rents, income and profits, until METLIFE shall otherwise agree in writing. All
sums received by Assignor after service of such Notice shall be deemed received
in trust and shall be immediately turned over to METLIFE.
Assignor hereby irrevocably appoints METLIFE its true and lawful
attorney-in-fact with power of substitution and with fill power for METLIFE in
its own name and capacity or in the name and capacity of Assignor, from and
after service of Notice, to demand, collect, receive and give complete
acquittances for any and rents, income and profits accruing from the Property,
either in its own name or in the name of Assignor or otherwise, which METLIFE
may deem necessary or desirable in order to collect and Enforce the payment of
the rents, income and profits and to demand, correct, receive, endorse, and
deposit all checks, drafts, money orders or notes given in payment of such
rents. Such appointment is coupled with an interest and is irrevocable. METLIFE
shall not be liable for or prejudiced by any loss of any note, checks, drafts,
etc., unless such loss is due to the gross negligence or willful misconduct of
METLIFE.
METLIFE shall apply the rents received from Assignor's lessees, to
accrued interest and principal under the Note. If no Event of Default remains
uncured, amounts received in excess of the aggregate monthly payment due under
the Note shall be remitted to Assignor in a timely manner. Nothing contained
herein shall be construed to constitute METLIFE as a mortgagee-in-possession in
absence of its physically taking possession of the Property.
Assignor also hereby irrevocably appoints METLIFE as its true and
lawful attorney-in-fact to appear in any state or federal bankruptcy,
insolvency, or reorganization proceeding in any state or federal court involving
any of the tenants of the Leases. Lessees of the Property are hereby expressly
authorized and directed, from and after service of a Notice to pay any and all
amounts due Assignor pursuant to the Leases to METLIFE or such nominee as
METLIFE may designate in writing delivered to and received by such lessees who
are expressly relieved of any and all duty, liability or obligation to Assignor
in respect of all payments so made.
If an Event of Default shall occur, METLIFE is hereby vested with
full power from and after service of a Notice to use all measures, legal and
equitable, deemed by it necessary or proper to enforce this Assignment and to
collect the rents, income and profits assigned hereunder, including the right of
METLIFE or its designee, to enter upon the Property, or any part thereof, and
take possession of all or any part of the Property together with all personal
property, fixtures, documents, books, records, papers and accounts of Assignor
relating thereto, and may exclude the Assignor, its agents and servants, wholly
therefrom. Assignor hereby grants full power and authority to METLIFE to
exercise all rights, privileges and powers herein panted at any and all times
after service of a Notice, with fill power to use and
2
apply all of the rents and other income herein assigned to the payment of the
costs of managing and operating the Property and of any indebtedness or
liability of Assignor to METLIFE, including but not limited to the payment of
taxes, special assessments, insurance premiums, damage claims, the costs of
maintaining, repairing, rebuilding and restoring the improvements on the
Property or of making the same rentable, reasonable attorneys' fees incurred
in connection with the enforcement of this Assignment and of principal and
interest payments due from Assignor to METLIFE on the Note and the Mortgage,
all in such order as METLIFE may determine. METLIFE shall be under no
obligation to exercise or prosecute any of the rights or claims assigned to
it hereunder or to perform or carry out any of the obligations of the lessor
under any of the Leases and does not assume any of the liabilities in
connection with or arising or growing out of the covenants and agreements of
Assignor in the leases. It is farther understood that this Assignment shall
not operate to place responsibility for the control, care, management or
repair of the Property, or parts thereof, upon METLIFE, nor shall it operate
to make METLIFE liable for the performance of any of the terms and conditions
of any of the Leases, or for any waste of the Property by any lessee under
any of the Leases or any other person, or for any dangerous or defective
condition of the Property or for any negligence in the management, upkeep,
repair or control of the Property resulting in loss or injury or death to any
lessee, licensee, employee or stranger.
Waiver of or acquiescence by METLIFE in any default by the
Assignor, or failure of the METLIFE to insist upon strict performance by the
Assignor of any covenants, conditions or agreements in this Assignment, shall
not constitute a waiver of any subsequent or other default or failure,
whether similar or dissimilar.
The rights and remedies of METLIFE under this Assignment are
cumulative and are not in lieu of. but are in addition to any other rights or
remedies which METLIFE shall have under the Note or any other instrument
constituting security for the Note, or at law or in equity.
If any term of this Assignment, or the application thereof to any
person or circumstances, shall, to any extent, be invalid or unenforceable,
the remainder of this Assignment, or the application of such term to persons
or circumstances other than those as to which it is invalid or unenforceable,
shall not be affected thereby, and each term of this Assignment shall be
valid and enforceable to the fullest extent permitted by law.
Any and all notices, elections, demands, or requests permitted or
required to be made under this Assignment, including without limitation a
Notice, shall be given in accordance with Section 18 of the Mortgage.
Assignor hereby authorizes METLIFE to give written notice of this
Assignment, which may include a copy hereof, at any time to any tenant under
any of the Leases.
The terms "Assignor" and "METLIFE" shall be construed to include
the legal representatives, successors and assigns thereof. The gender and
number used in this Assignment are used as a reference term only and shall
apply with the same effect whether the parties are of the masculine or
feminine gender, corporate or other form, and the singular shall likewise
include the plural.
This Assignment may not be amended, modified or changed nor shall
any waiver of any provisions hereof be effective, except only by an
instrument in writing and sighed by the party against whom enforcement of any
waiver, amendment, change, modification or discharge is sought.
Notwithstanding anything contained herein to the contrary, in no
event shall this Assignment be deemed to reduce the indebtedness evidenced by
the Note by an amount in excess of the actual amount of cash received by
METLIFE under the Leases, whether before, during or after the occurrence of
an Event of Default, and Assignor acknowledges that in no event shall the
indebtedness secured hereby be reduced by the value from time to time of the
rents, income mid profits of or from the Property. In addition, METLIFE
reserves the right, at any time, whether before or after the occurrence of an
Event of Default, to recharacterize this Assignment as merely constituting
security for the indebtedness of Assignor to METLIFE, which
recharacterization shall be made by written notice delivered to Assignor.
METLIFE's receipt of any rents, issues, and profits pursuant to this
Assignment after the institution of foreclosure proceedings, either by court
action or by the private power of sale contained in any Mortgage now or
hereafter securing the Note, shall not cure an Event of Default, as defined
in the Note, or affect such proceedings or sale.
3
This Assignment shall be construed and enforced under the laws of the
State of New York (excluding choice-of-law principles).
IN WITNESS WHEREOF, the said Assignor has caused this instrument to
be signed and sealed as of the date first above written.
ASSIGNOR:
WESTERN BEEF-STEINWAY STREET, INC.
a New York corporation
By: /s/ Peter Castellana, Jr.
--------------------------------
Peter Castellana, Jr., President
Attest: /s/ Robert C. Ludlow
-------------------------------
Title: Vice President
----------------------------
[SEAL]
Exhibits
Exhibit A - Legal Description
Exhibit B - List of Leases
4
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
ACKNOWLEDGEMENT
ON THE 19th day of March, l996, before me personally came Peter
Castellana. Jr., to me known, who, being by me duly sworn did say that he
resides at 9 Colonial Drive, Upper Brookville, NY; that he is the President of
Western Beef-Steinway Street, Inc., the corporation described in and which
executed the above instrument; that he knows the seal of said corporation, that
the seal affixed to said instrument is said corporate seal; that it was so
affixed by order of the Board of Directors of said corporation; and that he
signed his name thereto by like order, as the free act and deed of such
corporation for the uses and purposes set forth therein.
/s/ Gary Pollard
--------------------
My commission expires:
GARY POLLARD
NOTARY PUBLIC, State of New York
No. 31-4827321
Qualified in New York City
Commission expires
4/30/1996
[SEAL]
5
EXHIBIT A
PARCEL A (LOT 5 IN BLOCK 665):
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough and County of Queens, City and State of New York, bonded and described
as follows:
BEGINNING at a point on the southeasterly side of 38th Street, (60 feet wide)
distant 162.80 feet northeasterly from the corner formed by the intersection of
the southeasterly side of 38th Street with the northwesterly side of Northern
Blvd., 100 feet wide,
RUNNING THENCE northeasterly along the southeasterly side of 38th Street, 75.02
feet;
THENCE southeasterly at right angles to the southeasterly side of 38th Street,
54.35 feet;
THENCE still southeasterly on a line forming an interior angle of 221 degrees 57
minutes 20 seconds with the preceding course 118.56 feet to the northwesterly
side of Northern Blvd.;
THENCE southwesterly along the northwesterly side of Northern Blvd., 75.37 feet;
THENCE northwesterly at right angles to the northwesterly side of Northern
Blvd., 90.22 feet;
THENCE still northwesterly on a line forming an interior angle of 221 degrees 57
minutes 20 seconds with the preceding course, 25.03 feet to the southeasterly
side of 38th Street at the point or place of BEGINNING.
PARCEL B (LOT 7 IN BLOCK 2665):
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough and County of Queens, City and State of New York, bounded and described
as follows:
BEGINNING at a point on the southeasterly side of 38th Street (60 feet wide)
distant 237.82 feet (Actual) (237.80 feet Deed) northeasterly from the corner
formed by the intersection of the southeasterly side of 38th Street with the
northwesterly aide of Northern Blvd., 100 feet wide;
RUNNING THENCE northeasterly along the southeasterly side of 38th Street, 39.73
feet;
THENCE southeasterly on a line forming an exterior angle of 89 degrees 44
minutes 02 seconds with the southeasterly side of 38th Street, 94.78 feet
THENCE southwesterly and parallel with Steinway Street, 15.07 feet;
THENCE southeasterly at right angles to Steinway Street, 90 feet to the
northwesterly side of Steinway Street;
THENCE southwesterly along the northwesterly side of Steinway Street, 57.33 feet
to the corner formed by the intersection of the northwesterly side of Steinway
Street with the northwesterly side of Northern Blvd.;
THENCE southwesterly along the northwesterly side of Northern Blvd., 63.08 feet;
THENCE northwesterly at right angles to the northwesterly side of Northern
Blvd., 118.56 feet;
THENCE still northwesterly at right angles to the southeasterly side of 38th
Street and on a line forming an interior angle of 221 degrees 57 minutes 30
seconds with the preceding curse, 54.35 feet to the southeasterly side of 38th
Street at the point or place of BEGINNING.
PARCEL C (LOT 31 IN BLOCK 2665):
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough and County of Queens, City and State of New York, bounded and described
as follows:
BEGINNING at a point on the westerly side of Steinway Street, formerly known as
Steinway Avenue and also formerly known as 10th Avenue, distant 100 feet
southerly from the corner formed by the intersection of the southerly side of
Thirty-sixth Avenue, formerly known as Washington Avenue with the westerly side
of Steinway Street;
RUNNING THENCE westerly parallel with Thirty-sixth Avenue and part of the
distance through a party wall, 100 feet;
THENCE southerly parallel with Steinway Street, 75 feet;
THENCE easterly parallel with Thirty-sixth Avenue, 100 feet to the westerly side
of Steinway Street;
THENCE northerly along the westerly side of Steinway Street, 75 feet to the
point or place of BEGINNING.
PARCEL D (LOT 34 IN BLOCK 665):
ALL that certain piece or parcel of land, situate, lying and being in the First
Ward of the Borough of Queens, (formerly Long Island City) County of Queens,
City and State of New York, bounded and described as follows:
BEGINNING at a point on the northwesterly side of Steinway Street, distant 175
feet southwesterly from the corner formed by the intersection of the
northwesterly side of Steinway Street with the southwesterly side of 36th
Avenue, 75 feet wide;
RUNNING THENCE southwesterly along the northwesterly side Steinway Street, 50
feet;
THENCE northwesterly at right angles to Steinway Street, 106.48 feet;
THENCE northeasterly and parallel with the northwesterly side of Steinway
Street, 50 feet;
THENCE southeasterly and at right angles to the Steinway Sweet, 106.48 feet to
the northwesterly side of Steinway Street, at the point or place of BEGINNING.
PARCEL E (LOT 38 IN BLOCK 665):
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough and County of Queens, City and State of New York, bounded and described
as follows:
BEGINNING at a point on the northwesterly side of Tenth Avenue, formerly
Steinway Avenue, distant 57.33 feet northeasterly from the corner formed by the
intersection of the northwesterly side of Tenth Avenue with the northerly side
of Jackson Avenue;
RUNNING THENCE northeasterly along said side of Tenth Avenue, 150 feet;
THENCE northwesterly and at right angles to Tenth Avenue, 106.48 feet to the
center line of Harold Avenue, which is now closed;
THENCE southerly along said center line of Harold Avenue, 42.11 feet;
THENCE southwesterly parallel with Tenth Avenue, 111.26 feet;
THENCE southeasterly and at right angles to Tenth Avenue, 90 feet to the point
or place of BEGINNING.
For conveyancing only, if intended to be conveyed.
Together with all right, title and interest of, in and to any streets and roads
abutting the above described premises, to the center line thereof.
Title No. NY951153
SCHEDULE A (CONT)
SAID PARCELS A, B, C, D AND E ALSO BEING BOUNDED AND DESCRIBED AS FOLLOWS:
OVERALL DESCRIPTION
All that certain plot, piece or parcel of land, with the buildings and
improvements thereon erected, situate, lying and being in the Borough and County
of Queens, City and State of New York, bounded and described as follows:
BEGINNING at the corner formed by the intersection of the westerly side of
Steinway Street with the northwesterly side of Northern Boulevard (100 feet
wide);
RUNNING THENCE northerly along the westerly side of Steinway Street, 332.37
feet, to a point;
THENCE westerly parallel with the southerly side of 36th Avenue (75 feet wide)
through a party wall, 100 feet to a point;
THENCE southerly parallel with the westerly side of Steinway Street 74.88 feet
to a point;
THENCE westerly along a line drawn at right angles to last mentioned course 6.48
feet to a point;
THENCE southerly parallel with the westerly side of Steinway Street 50 feet to a
point;
THENCE southeasterly along the center line of former Harold Avenue, and along a
line forming an angle on the northeast of 156 degrees 57 minutes 18 seconds
42.11 feet to a point;
THENCE southerly parallel with the westerly side of Steinway Street 96.19 feet
to a point:
THENCE westerly along a line forming an angle on the northeast of 89 degrees 44
minutes 02 seconds with the easterly side of 38th Street (60 feet wide), 94.78
feet to the easterly side of 38th Street;
THENCE southerly along the easterly side of 38th Street 114.75 feet to a point:
THENCE easterly at right angles to the easterly side of 38th Street 25.03 feet
to a point;
THENCE southeasterly along a line drawn at right angles to the northwesterly
side of Northern Boulevard, 90.22 feet to the northwesterly side of Northern
Boulevard;
THENCE northeasterly along the northwesterly side of Northern Boulevard 138.45
feet to the corner formed by the intersection of the westerly side of Steinway
Street with the northwesterly side of Northern Boulevard, at the point or place
of BEGINNING.
Loan No: 5901796-001
EXHIBIT B
(36 - 12/32 Steinway Street and 38 15/23 Northern Boulevard, Queens, New York)
List of Leases:
TENANT: DATE AMENDED
North Star Auto Center, Inc. May 1, 1993 [NOT DATED]