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THIS INSTRUMENT PREPARED BY EXHIBIT 10(k)(5)(a)(ii)
AND RECORD AND RETURN TO:
Xxxx X. Xxxxxxxx, Xx., Esq.
LeBoeuf, Xxxx, Xxxxxx & XxxXxx, L.L.P.
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000-0000
AMENDED AND RESTATED ASSIGNMENT OF LEASES AND RENTS
FROM
XXXXX EQUITY, INC.
TO
FIRST UNION NATIONAL BANK, AS AGENT
DATED AS OF DECEMBER 30, 1998
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AMENDED AND RESTATED ASSIGNMENT OF LEASES AND RENTS
THIS AMENDED AND RESTATED ASSIGNMENT OF LEASES AND RENTS (this
"Assignment") is made and executed as of this 30th day of December, 1998, from
XXXXX EQUITY, INC., a Florida corporation ("Assignor"), whose address is 0000
Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 Attention: X.X. Xxxxxx,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Assignee") for the
Lenders under and as defined in that certain Second Amended and Restated
Revolving Credit Loan Agreement of even date herewith (the "Loan Agreement"),
whose address is 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: First Union Capital Markets Group. The terms Borrower and Lender,
whenever hereinafter used will be construed to refer to and include the heirs,
legal representatives, executors, administrators, successors and assigns of said
parties.
RECITALS:
A. Assignor is the mortgagor under that certain Second Amended and
Restated Deed of Trust, Assignment of Leases and Rents and Security Agreement
given by Assignor to Assignee dated of even date herewith and recorded or to be
recorded in the public records of Guilford County, North Carolina (the "Deed of
Trust"); securing the following Substitution Revolving Promissory Notes and
Revolving Promissory Notes: (i) Substitution Revolving Promissory Note dated as
of even date herewith made by Assignor payable to the order of FUNB in the
original principal amount of $45,000,000, (ii) the Substitution Revolving
Promissory Note dated as of even date herewith made by Assignor payable to the
order of AmSouth in the original principal amount of $35,000,000, (iii) the
Substitution Revolving Promissory Note dated as of even date herewith made by
Assignor payable to the order of GFB in the original principal amount of
$35,000,000, (iv) the Revolving Promissory Note dated as of even date herewith
made by Assignor payable to the order of Citizens in the original principal
amount of $20,000,000, and (v) the Revolving Promissory Note dated as of even
date herewith made by Assignor payable to the order of Compass in the original
principal amount of $15,000,000 (collectively, the "Notes", as such term is
defined in the Loan Agreement), encumbering certain real property interests
located in Guilford County, North Carolina, as more particularly described on
attached Exhibit A (the "Premises").
B. To further secure the payment, discharge and performance of the
Notes, and as a condition to Assignee's extension of credit to Assignor pursuant
to the Notes, Assignor has agreed to execute this Assignment for the purposes
set forth herein.
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C. This Assignment amends and restates that certain Assignment of
Leases and Xxxxx recorded in Official Records Book 4630, Page 0144, of the
public records of Guilford County, North Carolina, which Assignment of Leases
and Xxxxx was assigned to Assignee pursuant to that certain Assignment of Deed
of Trust and Related Loan Documents of even date herewith to be recorded in the
public records of Guilford County, North Carolina.
NOW, THEREFORE, to further secure the payment, discharge and
performance of the indebtedness of Assignor to Assignee evidenced by the Notes
and in consideration of Assignee's acceptance of the Notes and in further
consideration of the sum of Ten Dollars ($10.00) paid by Assignee to Assignor,
receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee all of Assignor's right, title and interest in, to and under
any and all present and future leases of or in the Premises ("Leases") and any
and all rents, revenues, issues and profits (including Assignor's interest in
any security deposits relating thereto) arising out of or accruing from the
Leases whether now or hereafter due ("Rents"), said Leases and Rents being
deemed part of the security for the indebtedness herein mentioned and are
encumbered, transferred and conveyed by this Assignment, and in furtherance
thereof, does hereby covenant and agree with Assignee as follows:
1. Assignor will notify Assignee in writing (but without any right of
approval or denial on the part of Assignee) of any termination, substitution or
material modification of any Leases involving 10,000 or more Xxxxx Net Square
Feet (as defined in the Loan Agreement).
2. Assignor will, at its cost and expense, observe, perform and
discharge, or cause to be observed, performed and discharged, all of the
obligations and undertakings of Assignor or its agents under the Leases, and
will use its reasonable best efforts in the exercise of sound business judgment
to enforce or secure, or cause to be enforced or secured, the performance of
each and every obligation and undertaking of the respective tenants under the
Leases, and will appear in and defend, at its cost and expense, any action or
proceeding arising under or in any manner connected with the Leases or the
obligations and undertakings of any tenant thereunder. Assignor will not do or
permit to be done anything to impair the security hereof, including without
limitation the execution of any other assignment of Assignor's interest in the
Leases or the Rents, without Assignee's prior written consent.
3. This Assignment is intended to operate as an absolute and immediate
assignment of the Leases and the Rents; however, unless and until a default
occurs under the Notes, the Loan Agreement, the Deed of Trust or this
Assignment, Assignor will have a license to collect the Rents as and when the
same become due and payable. Assignor xxxxxx agrees that the respective tenants
under the Leases, upon notice from Assignee of the occurrence of a default
hereunder, will thereafter pay to Assignee the Rents due and to become due under
the Leases without any obligation to determine whether or not such a default
does in fact exist. Assignor, without written approval of Assignee, will not
collect or accept Rent for more than one (1) month in advance; provided,
however, Assignor may
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accept Rent two (2) months in advance if such Rent accepted two (2) months in
advance does not exceed five percent (5%) of the Rent collected during the
applicable month.
4. Upon payment in full of the principal sum and interest, of the
Notes, this Assignment shall become and be void and of no effect. Assignor
hereby authorizes and directs the lessees named in said Leases or any other or
future lessees or occupants of the Premises described therein or in the Deed of
Trust upon receipt from the Assignee of written notice to the effect that
Assignee is then the holder of the Notes and the Deed of Trust and that a
default exists thereunder or under the Assignment, to pay over to the Assignee
all rents, income, profits and revenues hereby assigned and to continue so to do
until otherwise notified by Assignee.
5. This Amended and Restated Assignment of Leases and Rents as provided
herein will not be deemed or construed to constitute Assignee as a mortgagee in
possession of the Premises nor to obligate Assignee to take any action or to
incur expenses or perform or discharge any obligation, duty or liability of
Assignor under any Lease, or for the control, care, management, or repair of the
Premises; nor will it operate to make Assignee, except in the event of
Assignee's negligence, recklessness or wilful misconduct, responsible or liable
for any waste committed on the Premises by the tenants or any other parties or
for any dangerous or defective condition of the Premises, or for any act or
omission relating to the management, upkeep, repair, or control of the Premises
that results in loss or injury or death to any person. Except in the event of
Assignee's negligence, recklessness or wilful misconduct, Assignee will not be
liable for any loss sustained by Assignor resulting from Xxxxxxxx's failure to
lease the Premises after default or from any other act or omission of Assignee
in managing the Premises after default. Assignor will and does hereby indemnify
and agree to hold harmless Assignee from and against any and all liability,
loss, cost, damage or expense which may be incurred under the Leases or by
reason of this Assignment of Leases (except as a result of Assignee's gross
negligence or willful misconduct) and, to the extent that a claim is made
against Assignee prior to the time Assignee takes possession of the Premises,
from any and all claims and demands whatsoever which may be asserted against
Assignee by reason of any alleged obligations or undertakings on its part to
perform or discharge any of the terms, covenants, or agreements contained in the
Leases. Should Assignee incur any such liability under the Leases or by reason
of this Amended and Restated Assignment of Leases and Rents or in defense of any
such claims or demands, the amount thereof, including costs, expenses, and
reasonable attorneys' and paralegals' fees and costs, will be secured hereby and
Assignor will reimburse Assignee therefor immediately upon demand and upon the
failure of Assignor so to do, Assignee may, at its option, declare all sums
secured hereby immediately due and payable, or may charge the costs thereof to
Assignor as an advance under the Notes and secured by this Assignment.
6. To the extent not so provided by applicable law, each Lease will
provide that, in the event of enforcement by Assignee of the remedies provided
for by law or by the Notes, the Deed of Trust or this Assignment, the lessee
thereunder will, upon request of any person succeeding to the interest of
Assignor as a result of such enforcement,
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automatically become the lessee of said successor in interest, without change in
the terms or other provisions of such Lease. Any such successor in interest will
not be bound by any payment of rent or additional rent made more than one (1)
month or two (2) months in advance (as applicable in accordance with Paragraph 3
above). The Leases are and at all times shall be subject and subordinate in all
respects to the Deed of Trust, and to all renewals, modifications, amendments,
consolidations, replacements, refinancings and extensions of the Deed of Trust,
to the full extent of all principal, interest and all other amounts secured
thereby. Provided that a tenant is not in default under its Lease, Assignee
shall not disturb the occupancy of such tenant under its Lease during the term
of such Lease, notwithstanding foreclosure of the Deed of Trust, acceptance of a
deed in lieu of foreclosure or exercise of any other remedy provided in the Deed
of Trust, or pursuant to the laws of the State of North Carolina. If requested
by a tenant or Assignor under any of the Leases or upon Assignee's request,
Assignor and Assignee shall enter into a subordination, nondisturbance and
attornment agreement (reasonably acceptable in form and substance to Assignee)
with such tenant whereby Assignee will agree to not disturb the tenant in its
possession of the Premises provided such tenant is not in default under its
Lease and the tenant will agree to attorn to Assignee if Assignee takes
possession of the Premises.
7. Upon a default under the Notes, the Loan Agreement, the Deed of
Trust or this Assignment, Assignee may at its option, without notice and without
regard to the adequacy of the security for the obligations set forth in the
Notes, either in person, by court appointed receiver or by agent, with or
without bringing any action or proceeding, demand and thereupon take possession
of the Premises, to have, hold, manage, lease and operate the same on such terms
and for such period of time as Assignee may deem proper, and either with or
without taking possession of the Premises in its own name, demand and receive
the Rents in the possession of Assignor at the time of Assignee's written demand
or collected thereafter, 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 to apply such Rents to
the payment of: (a) all reasonable expenses of managing the Premises, including,
without limitation, the salaries, fees and wages of the managing agent and such
other employees as Assignee may deem necessary or desirable, all taxes, charges,
claims, assessments, liens, premiums for all insurance which Assignee may deem
necessary or desirable, costs of renovations, repairs, or replacements, and all
expenses incident to taking and retaining possession of the Premises and
protecting and preserving the same; or (b) the principal sum and interest
thereon of the Notes, together with all costs and attorneys' and paralegals'
fees and costs; all in such order or priority as Assignee in its sole discretion
may determine, any custom or use to the contrary notwithstanding.
8. This Assignment is made and accepted without prejudice to any of the
rights and remedies possessed by Assignee under the remaining terms and
conditions of the Notes, the Loan Agreement, or the Deed of Trust, and the right
of Assignee to exercise its remedies under this Assignment may be exercised by
Assignee either prior to, simultaneously with, or subsequent to any action taken
by it under the remaining terms and
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conditions of the Notes, the Loan Agreement, or the Deed of Trust. Each and
every right, remedy and power granted to Assignee by this Assignment will be
cumulative and in addition to any other right, remedy and power given by the
remaining terms and conditions of the Notes, the Loan Agreement, the Deed of
Trust or this Assignment, or now or hereafter existing in equity, at law or by
virtue of statute or otherwise. Nothing contained in this Assignment, and no act
done or omitted by Assignee pursuant to the powers and rights granted it
hereunder, nor the failure of Assignee to avail itself of any of the rights and
remedies under this Assignment, will be construed or deemed to be a waiver of
any of Assignee's rights and remedies under this Assignment, nor will such
exercise or omission to exercise of the powers and rights granted Assignee
hereunder be deemed to constitute a waiver of its rights and remedies under the
remaining terms and conditions of the Notes, the Loan Agreement, or the Deed of
Trust.
9. Assignee may take or release other security for the payment of the
indebtedness under the Notes and the Deed of Trust, may release any party
primarily or secondarily liable therefor, and may apply any other security held
by it to the satisfaction of such indebtedness without prejudice to any of its
rights under this Assignment.
10. The term "Lease" or "Leases" as used herein, means said Leases
hereby assigned or any extension or renewal thereof, and any leases subsequently
executed during the term of this Assignment covering the Premises or any part
thereof. At Assignee's request, Assignor will assign and transfer to Assignee
any and all subsequent leases upon all or any part of the Premises and to
execute and deliver at the request of Assignee all such further assurances and
assignments in the Premises as Assignee will require from time to time in its
sole discretion.
11. This Assignment, together with the covenants and warranties therein
contained, shall inure to the benefit of Assignee and any subsequent holder of
the Notes and the Deed of Trust shall be binding upon Assignor, their
successors, executors, personal representatives, and assigns, and any subsequent
owner of the Premises.
12. This Assignment shall expire and terminate upon the payment in full
of the Notes and any other Indebtedness secured by the Deed of Trust and any
cancellation, satisfaction or release of the Deed of Trust shall constitute a
cancellation, satisfaction, or release of this Assignment. In the event that a
specific property is released from the lien of the Deed of Trust, then such
property and the Leases relating to it shall, effective with the release, also
be released from this Assignment.
13. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ASSIGNOR, THE ASSIGNEE, AND THE LENDERS, THEIR RESPECTIVE SUCCESSORS AND ASSIGNS
(ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH ACKNOWLEDGE AND
AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE BASED UPON OR ARISING OUT OF
THIS ASSIGNMENT OR THE DEALINGS OR THE RELATIONSHIP
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BETWEEN THE PARTIES RELATED THERETO. NONE OF THE PARTIES SHALL SEEK TO
CONSOLIDATE ANY SUCH ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT
BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE
PARTIES, ARE MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A
MATERIAL INDUCEMENT FOR THE LENDERS TO MAKE THE LOAN TO ASSIGNOR, AND SHALL BE
SUBJECT TO NO EXCEPTIONS.
IN WITNESS WHEREOF, Assignor has executed this Assignment under seal
the day and year first above written.
Attest: ASSIGNOR:
XXXXX EQUITY, INC.,
By: /s/ X. Xxxxxxxx Xxxxxxx a Florida corporation
------------------------
Name: X. Xxxxxxxx Xxxxxxx
------------------------
Its: Secretary
------------------------- By: /s/ X. Xxxxx Xxxxxxx
--------------------------
Name: X. Xxxxx Xxxxxxx
------------------------
Title: Treasurer
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[AFFIX CORPORATE SEAL]
Attest: ASSIGNEE:
FIRST UNION NATIONAL BANK, a
By: /s/ Xxxx X. Xxxxxxxx national association, as Agent
--------------------------
Name: Xxxx X. Xxxxxxxx
------------------------
Its: Vice President By: /s/ Xxxxxx X. Xxxxxxxx
------------------------ ---------------------------
Name: X. Xxxxxx Xxxxxxxx
-------------------------
Title: Vice President
------------------------
[AFFIX CORPORATE SEAL]
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STATE OF Georgia:
-------
COUNTY OF Camden:
-------
I, Xxx Xxxxx, a Notary Public of the County of Camden, State of
Georgia, do hereby certify that X. Xxxxxxxx Xxxxxxx, personally appeared before
me this day and acknowledged that he is the _______ Secretary of XXXXX EQUITY,
INC., a Florida corporation, and that by authority duly given and as an act of
the corporation, the foregoing instrument was signed in its name by its
Treasurer, sealed with its corporate seal, and attested by himself as its_______
Secretary.
Witness my hand and official seal this 30th day of December, 1998.
/s/ Xxx Xxxxx
--------------------------------------
Notary Public
Notary Public, Camden County, Georgia
My commission expires: Feb. 1, 1999
[NOTARIAL SEAL]
STATE OF Florida:
--------
COUNTY OF Xxxxx:
------
I, Xxxxx Xxxxxxxx, a Notary Public of the County of Xxxxx, State of
Florida, do hereby certify that Xxxx X. Xxxxxxxx, personally appeared before
me this day and acknowledged that she is the Vice Pres. of FIRST UNION NATIONAL
BANK, a national association, and that by authority duly given and as an act of
the corporation, the foregoing instrument was signed in its name by its X.
Xxxxxx Xxxxxxxx, its Vice Pres., sealed with its corporate seal, and attested by
herself as its Vice Pres.
Witness my hand and official seal this 30th day of December, 1998.
/s/ Xxxxx Xxxxxxxx
--------------------------------------
Notary Public
My commission expires: September 3, 2000
Bonded Thru Notary Public Underwriters
[NOTARIAL SEAL]
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EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
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