Exhibit 10.4
Colonial Square Associates
Fort Myers, Florida
ASSIGNMENT OF TENANT LEASES AND
SECURITY DEPOSITS
This ASSIGNMENT OF TENANT LEASES AND
SECURITY DEPOSITS (the “ Assignment ”) is made
and entered into this 5th day of November, 2010 by
COLONIAL SQUARE ASSOCIATES, L.L.C., a Florida limited
liability company (“ Assignor” ) and INLAND
DIVERSIFIED FORT MYERS COLONIAL SQUARE, L.L.C., a Delaware limited
liability company (“ Assignee ”).
R E C I T A L
S :
A.
Assignor and Assignee have entered into
that certain letter agreement dated as of July 16, 2010, as amended
(the “ Agreement ”) relating to the sale of that
certain tract of land together with the improvements thereon (the
“ Property ”) located in Fort Myers, Florida,
and being legally described in Exhibit A , attached
hereto and made a part hereof.
B.
Assignor is the landlord under various
leases (“ Leases ”) for commercial spaces on the
Premises which Leases are identified on the rent roll (“
Rent Roll ”) attached hereto as Exhibit
B and made a part hereof, which Assignor certifies is true and
correct.
C.
Pursuant to the terms of certain
Leases, certain tenants thereof have paid to Assignor certain
security deposits (“ Security Deposits ”), which
are listed on the Rent Roll.
D.
Assignor desires to assign and
transfer all of its right, title and interest in the Leases,
including all rents (“ Rents ”), due or to
become due under the Leases on or after November 5, 2010
(“ Proration Date ”), and in the Security
Deposits, to Purchaser in accordance with the terms herein set
forth.
NOW THEREFORE, in consideration of the
mutual covenants herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1.
Recitals; Defined Terms
. The foregoing recitals are
acknowledged to be accurate and are incorporated herein by
reference. Capitalized terms used in this Assignment and not
defined herein but defined in the Agreement shall have the meanings
given to such terms in the Agreement.
2.
Assignment . Assignor hereby absolutely sells, assigns,
transfers and conveys all of its right, title and interest in and
to the Leases, the Rents and the Security Deposits to Assignee.
Assignor represents and warrants to Assignee that as of the
date hereof and the Proration Date, except as may be set forth in
Exhibit C , (i) the Leases are in full force and effect,
there exist no defaults by Assignor under the Leases and Assignor
has fully performed all of its obligations under the Leases through
the Proration Date and (ii) that Assignor has not previously sold,
conveyed or
129921.1
assigned, or purported to sell, convey or
assign, the Leases or Rents absolutely or for security, except to
the mortgagee of record, if any, which assignment shall be released
at closing of the sale of the Premises to Assignee.
Assignor shall retain all rights to
collect any amounts accrued but unpaid as of the Proration Date. If
any tenant should remit any such amount to Assignee, Assignee shall
pay such amount to Assignor, when collected by Assignor. The
first monies received by Assignee from each tenant after the
Proration Date shall be applied first to current rents and other
amounts due (unless specially designated by the tenant) and
thereafter shall be applied to rents and other amounts due in
arrears. Assignor reserves all claims and causes of action
against tenants and others who are in arrears as of the Proration
Date (other than the right to terminate such tenant’s lease
or its right of possession),
