Exhibit 10.4
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PREPARED BY/RECORD AND RETURN TO: Marcy H. Kammerman, Esquire, Tarragon South
Development Corp., 200 East Las Olas Boulevard, Suite 1660, Fort Lauderdale,
Florida 33301.
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THIRD ASSIGNMENT OF RENTS, LEASES AND DEPOSITS
THIS ASSIGNMENT is made and entered into as of the ____ day of
__________, 2005, by AGU ENTERTAINMENT CORP., a Delaware corporation, whose
address is 3200 West Oakland Park Boulevard, Lauderdale Lakes, Florida 33311
("Assignor"), in favor of TARRAGON SOUTH DEVELOPMENT CORP., a Nevada
corporation, whose address is 200 East Las Olas Boulevard, Suite 1660, Fort
Lauderdale, Florida 33301, its successors and assigns ("Assignee").
W I T N E S S E T H:
WHEREAS, contemporaneously herewith, Assignor has executed and
delivered to Assignee a promissory note in the principal amount of Two Million
Five Hundred Thousand and 00/100 Dollars ($2,500,000.00) (hereinafter referred
to as the "Note"), secured by a Third Mortgage Deed and Security Agreement dated
of even date herewith (hereinafter referred to as the "Mortgage"), on the
property of Assignor in Broward County, Florida, the legal description of which
is set forth as follows:
SEE LEGAL DESCRIPTION, ANNEXED HERETO AND MADE A PART
HEREOF AS EXHIBIT "A"
together with all buildings and improvements now or hereafter constructed
thereon (all of such property being hereinafter collectively referred to as the
"Property" or "Mortgaged Property"); and
WHEREAS, the Mortgage is a third mortgage subject and subordinate only
to that certain (a) first mortgage in favor of Charley Zeches, in her capacity
as Trustee of Lakes Holding Trust U/A dated July 27, 2001 (the "Zeches
Mortgage"), and (b) that certain second mortgage in favor of Mitchell
Entertainment Company (the "Mitchell Mortgage"),
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WHEREAS, as additional security for the Note and the obligations of
Assignor thereunder, Assignor has executed and delivered to Assignee this
Assignment.
NOW, THEREFORE, for value received and as security for the payment of
said obligations of Assignor, Assignor, for itself and for its successors and
assigns, does hereby transfer, assign and deliver unto Assignee, its successors
and assigns, all of the right, title and interest of Assignor in and to (1) all
leases, subleases, tenancies and any other agreement affecting the use of the
Mortgaged Property, whether written or oral, now or hereafter existing with
respect to any portion or portions of the Mortgaged Property, together with any
renewals or extensions thereof and leases, subleases, tenancies, and such
agreements in substitution therefor (all of which are hereinafter collectively
referred to as the "Leases" or "Assigned Leases" and singularly as "Lease"), (2)
all rents, deposits, issues, profits and other payments of every kind due or
payable and to become due or payable to Assignor by virtue of the Assigned
Leases, or otherwise due or payable and to become due or payable to Assignor as
the result of any issue, possession or occupancy of any portion or portions of
the Mortgaged Property, (3) all right, title and interest of Assignor in and to
all guarantees of the Assigned Leases and (4) any award made in any court
proceeding involving any of the lessees in any bankruptcy, insolvency or
reorganization proceedings in any state or federal court.
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns,
until such time as the indebtedness secured by the Mortgage shall have been paid
in full, for the purpose of further and collaterally securing: (1) payment of
the indebtedness evidenced by the Note together with the interest on said
indebtedness; (2) payment of all sums, with interest thereon, to become due and
payable to Assignee hereunder or under the provisions of the Mortgage, the Note,
or any other obligation of Assignor to Assignee now or hereafter existing; and
(3) performance and discharge of each and every obligation, covenant and
agreement of Assignor contained herein, or in the Note, the Mortgage, any
associated loan document or any other obligation of Assignor to Assignee now or
hereafter existing (hereinafter collectively referred to as the "Obligations").
This instrument of Assignment is delivered and accepted upon the
following terms and conditions:
1. Assignor's License to Operate if no Event of Default. This
Assignment shall be and constitute an absolute assignment effective upon
execution, however, so long as no event of default shall exist under the
Obligations, Assignor shall have a revocable license, revocable by Assignee upon
the occurrence of an event of default under the Obligations, and to collect,
receive and apply for its own account all rents, issues and profits (the
"Rents") accruing by virtue of the Assigned Leases, and to execute and deliver
proper receipts and acquittances therefor, provided, however, that without the
written consent of Assignee, Assignor shall not collect any installment of rent
or other required sums, in advance, other than a security deposit and rent for
the first and last month of any lease or sublease term (hereinafter referred to
as "Permitted Advance Rental Payments"). As to any security deposits and/or
prepaid rents, Assignor shall furnish to Assignee, upon Assignee's request,
satisfactory evidence that Assignor has maintained such security deposits and/or
prepaid rents in accordance with the requirements of Florida law.
2. Assignee's Rights in Event of Default.
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2.1 Immediately upon the occurrence of any event of default under the
Obligations, the revocable license described in paragraph 1 above shall cease
and terminate upon demand and notice made by Assignee, and, in such event,
Assignee, subject to the rights of first mortgagee under the Zeches Mortgage and
the second mortgagee under the Mitchell Mortgage, is hereby expressly and
irrevocably authorized to enter and take possession of the Rents, or by written
notice served personally upon or sent by registered mail to Assignor as Assignee
may elect, without further authorization, notice or demand and without the
commencement of any action to foreclose the Mortgage or to exercise its power of
sale thereunder.
2.2 Assignor does hereby constitute and appoint Assignee, irrevocably,
with full power of substitution and revocation, its true and lawful attorney,
coupled with an interest, for it and in its name, place and stead, to do and
perform any or all of the following actions, as fully for all intents and
purposes, as it could do if personally present, hereby ratifying and confirming
all that its said attorney or its substitution shall lawfully do or cause to be
done by virtue hereof:
(a) manage and operate the Property or any part thereof;
(b) lease any part or parts thereof for such periods of time,
and upon such terms and conditions as Assignee may, in its sole
discretion, deem proper;
(c) enforce, cancel or modify any of the Leases;
(d) demand, collect, sue for, attach, levy, recover, receive,
compromise and adjust, and make, execute and deliver receipts and
releases for all rents, issues, profits and other amounts that may then
be or may thereafter become due, owing or payable with respect to the
Property or any part thereof from any present or future lessees,
tenants, subtenants or occupants thereof;
(e) institute, prosecute to completion or compromise and
settle, all summary proceedings, actions for rent or for removing any
and all lessees, tenants, subtenants or occupants of the Property or
any part or parts thereof;
(f) enforce or enjoin or restrain the violation of any of the
terms, provisions and conditions of any Lease or Leases, now or
hereafter affecting the Property or any part thereof;
(g) make such repairs and alterations to the Property as
Assignee may, in its reasonable discretion, deem proper;
(h) pay, from and out of rents, issues and profits collected
in respect of the Property or any part thereof, or from or out of any
other funds, the rent and all other charges required to be paid under
any ground leases on which the Mortgage may constitute a lien, any
taxes, assessments, water rates, sewer rates, or other government
charges levied, assessed or imposed against the Property, or any
portion thereof, and also any and all other charges, costs and expenses
which it may be necessary or advisable for Assignee to pay in the
management or operation of the Property, including without limiting the
generality of any rights, powers, privileges and authority hereinbefore
or hereinafter conferred) the costs of repairs and alterations,
commissions for renting the Property or any portions thereof, any legal
expenses in enforcing claims, preparing papers or for any other
services that may be required; and
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(i) generally, do, execute and perform any other act, deed,
matter or thing whatsoever that ought to be done, executed and
performed in and about or with respect to the Property, as fully as
Assignor might do, provided, however, that any action, or failure or
refusal to act, by Assignee under this Assignment shall be at its
election and without any liability on its part.
2.3 Assignee shall apply the net amount of rents, issues and profits
received by it from the Property, after payment of all costs and charges
incurred by Assignee (including any liability, loss, expense or damage
hereinafter referred to in paragraph 5 hereof), first to the payment, when due,
of the installments of interest payable under the Note and thereafter to the
payment of principal thereunder. Any of such funds remaining after such
application shall be paid as soon as reasonably practicable by Assignee to such
persons as Assignor may designate to Assignee in writing.
2.4 Assignee shall be accountable to Assignor only for monies actually
received by Assignee pursuant to this Assignment and the acceptance of this
Assignment shall not constitute a satisfaction of any indebtedness, liability or
obligations, or any part thereof, now or hereafter owed by Assignor to Assignee,
except to the extent of amounts actually received and applied by Assignee on
account of the same.
2.5 The rights and powers of Assignee hereunder shall continue and
remain in full force and effect until all amounts secured hereby, including any
deficiency resulting from foreclosure sale, are paid in full, and shall continue
after commencement of foreclosure and after foreclosure sale and until
expiration of the equity of redemption, notwithstanding sale of the Property to
a purchaser other than Assignee. Assignee shall not be liable to Assignor or any
one claiming under or through Assignor by reason of anything done or left undone
by Assignee hereunder.
3. Attornment of Lessees in Event of Default. ASSIGNOR HEREBY
IRREVOCABLY DIRECTS EACH LESSEE AND/OR SUBLESSEE UNDER EACH OF THE LEASES UPON
DEMAND AND NOTICE FROM ASSIGNEE OF AN EVENT OF DEFAULT UNDER ANY OF THE
OBLIGATIONS, TO PAY ASSIGNEE ALL RENTS, DEPOSITS AND PROFITS ACCRUING OR DUE
UNDER ITS LEASE FROM AND AFTER THE RECEIPT OF SUCH DEMAND AND NOTICE. ANY LESSEE
MAKING SUCH PAYMENT TO ASSIGNEE SHALL BE UNDER NO OBLIGATION TO INQUIRE INTO OR
DETERMINE THE ACTUAL EXISTENCE OF ANY SUCH EVENT OF DEFAULT(S) CLAIMED BY
ASSIGNEE.
4. Covenants of Assignor. Assignor, for itself and for its successors
and assigns, covenants and warrants as follows:
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(a) that each of the Leases now or hereafter in effect is and
shall be a valid and existing lease or sublease and that there are, to
the extent ascertainable by Assignor, no defaults on the part of any of
the parties thereto;
(b) that Assignor has not sold, assigned, transferred,
mortgaged or pledged any of the rents, issues or profits from the
Property or any part thereof, whether now or hereafter to become due,
to any person, firm or corporation other than Assignee;
(c) that no rents, issues, deposits or profits of the
Property, or any part thereof, becoming due subsequent to the date
hereof have been collected nor has payment of any of the sums been
anticipated, waived, released, discounted or otherwise discharged or
compromised;
(d) that Assignor will not assign, pledge or otherwise
encumber any of the Leases or any of the rents thereunder unless the
prior written consent of Assignee shall have been obtained thereto and
unless the instrument creating such assignment, pledge or encumbrance
shall expressly state that the same is subject to this Assignment;
(e) that Assignor will not, without in each case having
obtained the prior written consent of Assignee, which shall be withheld
in Assignor's sole and absolute discretion, enter into any new lease
agreement with respect to all or any portion of the Property or amend,
modify, terminate or accept any surrender of any Lease;
(f) that Assignor will not waive or give any consent with
respect to any default or variation in the performance of any of the
terms, covenants and conditions on the part of any lessee, sublessee,
tenant or other occupant to be performed under any of the Leases
without the written consent of Assignee, but will at all times take
proper steps to enforce all of the provisions and conditions thereof;
(g) that Assignor will not collect or receive, without in each
case having obtained the prior written consent of Assignee thereto,
from any such lessee, sublessee, tenant or other occupant, any
installment of rent in advance of the respective dates prescribed in
the Leases, except for Permitted Advance Rental Payments;
(h) that Assignor will perform and observe, or cause to be
performed and observed, all of the terms, covenants and conditions on
its part to be performed and observed with respect to each of the
Leases;
(i) that Assignor will notify Assignee promptly when any Lease
is hereafter executed, extended, renewed, amended or modified and that
it will furnish to Assignee, on demand, true copies of all Leases
hereafter executed and true copies of each agreement or letter
effecting the renewal, amendment or modification of any Assigned Lease;
and
(j) any Leases hereafter executed shall provide that within
thirty (30) days after written request from Assignee (i) the lessee
shall agree to furnish to Assignee a financial statement on a form
reasonably satisfactory to Assignee and such other documentation which
would reflect the status of the Lease and/or the financial condition of
such lessee and (ii) Assignor and such lessee shall agree to amend the
Lease to make reasonable changes required by Assignee provided,
however, such changes do not materially alter the terms and conditions
of the Lease.
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Assignor acknowledges and agrees that the approval (directly or
indirectly) of any Lease by Assignee shall not be construed in any manner to
create any liability or responsibility as to Assignee in the event that such
Lease or the tenant thereunder should default. The review of any Lease by
Assignee shall be solely for Assignee's own purposes, shall not constitute any
representation by Assignee as to the subject Lease or as to the tenant
thereunder and may not and shall not be relied upon by Assignor in any manner.
Assignee shall independently review and approve any Lease and the tenant
thereunder prior to execution thereof by Assignor.
5. Indemnification.
5.1 Assignor hereby agrees to indemnify, defend, and hold Assignee
harmless (except to the extent caused by the gross negligence or willful
misconduct of the Assignee) (a) against and from any and all liability, loss,
damage and expense, including reasonable attorneys' fees, which it may or shall
incur under or in connection with any of the Leases, or by reason of any of the
Obligations, or by reason of any action taken by Assignee under any of the
Obligations (including, without limitation, any action which Assignee in its
discretion may take to protect its interest in the Property, including, without
limitation, the making of advances and the entering into of any action or
proceeding arising out of or connected with the Leases or the Obligations), and
(b) against and from any and all claims and demand whatsoever which may be
asserted against Assignor by reason of any alleged obligations or undertakings
on its part to perform or discharge any of the terms, covenants and conditions
contained in any of the Leases.
5.2 Should Assignee incur any such liability, loss, damage or expense,
the amount thereof, together with interest thereon at the highest rate permitted
under Florida law, shall be payable by Assignor to Assignee immediately upon
demand, or at the option of Assignee, Assignee may reimburse itself therefor out
of any rents, issues or profits of the Property collected by Assignee.
5.3 Nothing contained herein shall operate or be construed to obligate
Assignee to perform any of the terms, covenants or conditions contained in any
Lease, or to take any measures, legal or otherwise, to enforce collection of any
of said rents or other payments, or otherwise to impose any obligation upon
Assignee with respect to any of said Leases, including but not limited to, any
obligation arising out of any covenant of quiet enjoyment therein contained.
5.4 Prior to actual entry into any taking possession of the Property by
Assignee, this Assignment shall not operate to place upon Assignee any
responsibility for the operation, control, care, management or repair of the
Property, and the execution of this Assignment by Assignor shall constitute
conclusive evidence that all responsibility for the operation, control care,
management and repair of the Property is and shall be that of Assignor prior to
such actual entry and taking of possession.
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6. Exercise of Remedies. Failure of Assignee to avail itself of any of
the terms, covenants and conditions of this Assignment for any period of time,
or at any time or times, shall not be construed or deemed to be a waiver of any
of its rights hereunder. The rights and remedies of Assignee under this
Assignment are cumulative and are not in lieu of but are in addition to any
other rights and remedies which Assignee shall have under or by virtue of any
other of the Obligations. The rights and remedies of Assignee hereunder may be
exercised from time to time and as often as such exercise is deemed expedient.
7. Assignment by Assignee. Assignee shall have the right to assign to
any subsequent holder of the Mortgage, or to any person acquiring title to the
Property, Assignor's rights, title and interest in any Lease or sublease hereby
or hereafter assigned, subject, however, to the provisions of this Assignment.
After Assignor shall have been barred and foreclosed of all right, title and
interest and equity of redemption in said Property, no assignee of Assignor's
interest in said Leases shall be liable to account to Assignor for any rents,
income, revenue, issues or profits thereafter accruing.
8. Termination of this Agreement. Upon payment in full of all the
indebtedness secured by the Mortgage, as evidenced by a recorded satisfaction or
release of Mortgage, as well as any sums which may be payable hereunder, this
Assignment shall become and be void and of no further effect and, in that event,
upon the request of Assignor, Assignee covenants to execute and deliver to
Assignor instruments effective to evidence the termination of this Assignment
and/or the reassignment to Assignor of the rights, power and authority granted
herein.
9. No Merger of Assigned Leases. As against Assignee, at all times
during which this Assignment shall be in effect, there shall be no merger of the
Leases or the leasehold estate created thereby with the fee estate in the
Property by reason of the fact that the Leases or any interest therein may be
held by or for the account of any person, firm or corporation which may be or
become the owner of said fee estate, unless Assignee shall consent in writing to
said merger.
10. Notice. Any notice, demand, request or other communication given
hereunder or in connection herewith (hereinafter "Notices") shall be deemed
sufficient if in writing and sent by registered or certified mail, postage
prepaid, return receipt requested, addressed to the party to receive such Notice
at such address as each party has provided to the other in the Mortgage, or at
such other address as such party may hereafter designate by Notice given in like
fashion. Notice shall be deemed given when mailed. Notwithstanding the
foregoing, routine communications such as ordinary distribution checks, copies
of documents, etc. may be sent by ordinary first-class mail. Notwithstanding
anything in this instrument to the contrary, all requirements of notice shall be
deemed inapplicable if Assignee is prevented from giving such notice by
bankruptcy or any other applicable law. In such event, the cure period, if any,
shall then run from the occurrence of the event or condition of default rather
than from the date of notice.
11. Miscellaneous Provisions.
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11.1 Whenever the context so requires, reference herein to the neuter
gender shall include the masculine and/or feminine gender, and the singular
number shall include the plural.
11.2 All of the provisions of this Assignment shall be deemed and
construed to be "conditions" and "covenants" as though the words specifically
expressing or importing covenants and conditions were used in each separate
provision hereof.
11.3 This Assignment is being delivered and is intended to be performed
in the State of Florida and shall be construed and enforced in accordance with
and governed by the internal laws (and not the law of conflicts) of such state.
11.4 No change, amendment, modification, cancellation or discharge
hereof, or of any part hereof, shall be valid unless Assignee shall have
consented thereto in writing.
11.5 In the event there is any conflict between the terms and
provisions of the Mortgage and the terms and provisions of this Assignment, the
terms and provisions of this Assignment shall prevail.
11.6 The terms, covenants, and conditions contained herein shall inure
to the benefit of, and bind Assignee and Assignor and their respective
successors and assigns or executors, administrators, successors and assigns, as
the case may be.
11.7 The captions of this Assignment are for convenience and reference
only and neither in any way define, limit, or describe the scope or interest of
this Assignment nor in any way affect this Assignment.
11.8 In case any one or more of the provisions contained in this
Assignment are, or shall for any reason be held to be, invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof or thereof, but each shall be
construed as if such invalid, illegal or unenforceable provision had never been
included.
11.9 The rights and remedies in favor of Assignee granted by this
Assignment shall be in addition to and shall not in any way constitute a
limitation upon the rights and remedies available to Assignee under applicable
law, including without limitation all rights under Chapter 697.07, Florida
Statutes, regarding assignment of rents and all rights under Chapter 702,
Florida Statutes, regarding foreclosure actions.
11.10 Assignee may take or release other security for the payment of
the Obligations, and, may release any party primarily or secondarily liable
therefore, and, may apply any other security held by it to the satisfaction of
the Obligations, without prejudice to any of its rights under this Assignment.
ASSIGNOR AND ASSIGNEE HEREBY MUTUALLY, KNOWINGLY, WILLINGLY,
INTENTIONALLY AND VOLUNTARILY WAIVE THEIR RIGHT TO TRIAL BY JURY AND NO PARTY
NOR ANY ASSIGNEE, SUCCESSOR, HEIR, OR LEGAL REPRESENTATIVE OF THE PARTIES (ALL
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OF WHOM ARE HEREINAFTER COLLECTIVELY REFERRED TO AS THE "PARTIES") SHALL SEEK A
JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION
PROCEEDING BASED UPON OR ARISING OUT OF THIS ASSIGNMENT OR ANY ASSOCIATED LOAN
DOCUMENTS OR ANY INSTRUMENT EVIDENCING, SECURING OR RELATING TO THE INDEBTEDNESS
OR OTHER OBLIGATIONS SECURED HEREBY OR ANY RELATED AGREEMENT OR INSTRUMENT, ANY
OTHER COLLATERAL FOR THE INDEBTEDNESS SECURED HEREBY OR ANY COURSE OF ACTION,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS RELATING TO
THE LOAN EVIDENCED BY THE NOTE OR TO THIS ASSIGNMENT. THE PARTIES ALSO WAIVE ANY
RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY
OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS
PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES. THE WAIVER CONTAINED HEREIN
IS IRREVOCABLE, CONSTITUTES A KNOWING AND VOLUNTARY WAIVER, AND SHALL BE SUBJECT
TO NO EXCEPTIONS. ASSIGNEE HAS IN NO WAY AGREED WITH OR REPRESENTED TO ASSIGNOR
OR ANY OTHER PARTY THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY
ENFORCED IN ALL INSTANCES.
IN WITNESS WHEREOF, Assignor has caused these presents to be signed as
of the day and year first above written.
Signed, sealed and delivered
in the presence of:
AGU ENTERTAINMENT CORP., a
Delaware corporation
______________________________________
Print name: __________________________ By:________________________
David Levy
President
______________________________________
Print name: __________________________
(Corporate Seal)
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STATE OF FLORIDA
COUNTY OF BROWARD
The foregoing instrument was acknowledged before me this ____ day of
______________, 2005, by David Levy, as President of, and on behalf of, AGU
ENTERTAINMENT CORP., a Delaware corporation, who ? is personally known to me or
? produced his driver's license as identification.
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NOTARY PUBLIC-State of Florida
Print/Type/Stamp Name:
Commission Expiration Date:
Notary Seal:
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EXHIBIT "A"
Legal Description
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