Exhibit 10.13.3
This instrument was prepared by and
following recordation should be returned to:
Xxxxxxx X. Xxxxxx, Esquire
Lowndes, Drosdick, Doster,
Xxxxxx & Xxxx, P.A.
000 Xxxxx Xxxx Xxxxx
Post Office Box 2809
Xxxxxxx, Xxxxxxx 00000
ASSIGNMENT OF RENTS AND LEASES
(STATE FARM LOAN NO. 13551)
THIS ASSIGNMENT OF RENTS AND LEASES ("Assignment") made and executed
this 6th day of November, 2001 by XXXXXXX PROPERTIES RESIDENTIAL, L.P., a
Georgia limited partnership, ("Borrower") whose mailing address for the purposes
of this instrument is c/x Xxxxxxx Realty Investors, Inc., Attn: Xxxxxxx X.
Xxxxxxx, Chief Financial Officer, 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx
00000 to, in favor and for the benefit of STATE FARM LIFE INSURANCE COMPANY, an
Illinois corporation, ("State Farm") whose mailing address for purposes of this
instrument is Xxx Xxxxx Xxxx Xxxxx, X-0, Xxxxxxxxxxx, Xxxxxxxx 00000,
WITNESSETH:
WHEREAS, State Farm has made a loan to Borrower ("Loan") which is
evidenced by that certain Promissory Note executed by the Borrower to and in
favor of State Farm of even date herewith in the principal amount of Twenty-One
Million and 00/100 Dollars ($21,000,000.00) ("Note").
WHEREAS, the Note is secured by (i) a Mortgage and Security Agreement
executed by Borrower and in favor of State Farm of even date herewith
("Mortgage") granting to State Farm, among other things, a first priority lien
and encumbrance upon the Real Estate (as defined in the Mortgage) and
Improvements (as defined in the Mortgage) legally described in Exhibit A
attached to this Assignment ("Premises"); and (ii) certain other Loan Documents
(as defined in the Mortgage), also executed by the Borrower to and in favor of
State Farm of even date herewith, the terms and provisions of which Mortgage and
other Loan Documents are by this reference thereto incorporated herein and made
a part hereof.
WHEREAS, as a material inducement to State Farm to make the Loan and as
further security for the Loan, Borrower makes this Assignment.
NOW, THEREFORE, for $10.00 and other good and valuable considerations,
the receipt and sufficiency of which are hereby acknowledged, Borrower agrees as
follows:
1. ASSIGNMENT OF RENTS AND LEASES.
1.1 DEFINITIONS. For purposes of this Assignment, the following
definitions shall apply:
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1.1.1 "CREDIT LEASES". The lease(s) on or with respect to the Premises,
including any sublease(s), assignment(s), and replacement lease(s) therefor,
listed and described on Exhibit B attached to this Assignment.
1.1.2 "OTHER LEASES". Any lease(s) on or with respect to the Premises
other than the Credit Leases.
1.1.3 "LEASES". Collectively, the Credit Leases and the Other Leases.
1.1.4 "GUARANTEES". Any and all guarantees of the payment of rent by
and performance of all other obligations of the tenant(s) under the Leases.
1.1.5 OTHER DEFINITIONS. Capitalized terms not otherwise defined in
this Assignment shall have the meanings ascribed to such terms in the Note, the
Mortgage and other Loan Documents.
1.2 ASSIGNMENT OF RENTS. Subject to the terms and conditions of this
Assignment, Borrower hereby absolutely, unconditionally and irrevocably
transfers, conveys, assigns and grants to State Farm all of Borrower's right,
title and interest in and to all rents, issues, profits, proceeds, income,
revenues, royalties, advantages, avails, claims against guarantors, security and
other deposits (whether in cash or other form), advance rentals, damages,
insurance and condemnation proceeds and any and all other payments or benefits
now or hereafter derived, directly or indirectly, from the Real Estate and
Improvements, whether under the Leases or otherwise (collectively the "Rents").
1.3 ASSIGNMENT OF LEASES. Subject to the terms and conditions of this
Assignment, Borrower hereby absolutely, unconditionally and irrevocably assigns
and grants to State Farm all of Borrower's right, title and interest as landlord
in, to and under all Leases, together with any and all Guarantees.
1.4 ABSOLUTE ASSIGNMENTS. The foregoing assignments of Rents and Leases
are present and absolute assignments and not assignments for or as security
only. State Farm's right to the Rents and Leases is not contingent upon its
possession of the Premises.
1.5 LICENSE. State Farm hereby grants to and confers upon Borrower a
revocable license to collect and retain the Rents as the same become due and
payable under the Leases, but not in excess of 30 days in advance, so long as,
and only so long as, no Event of Default (as herein defined) exists under this
Assignment, the Note, the Mortgage or any of the other Loan Documents (the
"License"). Upon the occurrence of an Event of Default under this Assignment,
the Note, the Mortgage or any of the other Loan Documents, the License granted
and conferred herein shall immediately and automatically be revoked, cease and
terminate without notice.
Upon any such revocation and termination of the License, State Farm
shall have the right to notify all tenants under the Leases to pay the Rents
then due and thereafter coming due directly to State Farm. After such revocation
and termination of the License, any and all Rents
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received by the Borrower, shall be remitted to State Farm not later than three
(3) business days following Borrower's receipt of the same.
Borrower hereby authorizes and directs any tenant under the Leases,
upon receipt of written notice from State Farm stating that an Event of Default
has occurred or exists under the Note, the Mortgage or any of the other Loan
Documents, to pay directly to State Farm the Rents then due and thereafter
coming due under the Leases. Borrower agrees that any tenant shall have the
right to rely upon any such notice from State Farm without any obligation, and
without any right, to inquire as to whether any such Event of Default has
actually occurred or exists and notwithstanding any claim of Borrower to the
contrary. Borrower shall have no claim (and hereby waives any claim) against any
tenant for the Rents paid by such tenant directly to State Farm following its
receipt of any such notice from State Farm.
1.6 COVENANTS.
1.6.1 NEGATIVE COVENANTS. As to the Leases, generally, except as
provided in Section 1.6.3, Borrower hereby covenants and agrees that it shall
not, without the prior written consent of State Farm, (i) alter, modify, cancel,
terminate, discharge or compromise the Leases or the Rents due or to become due
thereunder or change the terms of any Guarantees; (ii) accept any Rents for more
than one installment in advance; (iii) waive, release, reduce, discount or
otherwise discharge or compromise any Rents; (iv) waive, release, reduce,
discount or otherwise discharge or compromise any Guarantees; or (v) execute any
other assignment of the Leases or the Rents, whether absolute or conditional.
1.6.2 AFFIRMATIVE COVENANTS. As to the Credit Leases only, Borrower
shall: (i) promptly notify State Farm in writing of any default or of any
attempted termination, relocation or buyout, or any notice of the same given by
either the Borrower or any tenant; (ii) perform all of its covenants, agreements
and obligations as landlord under the Credit Leases, (iii) not suffer or permit
to occur any release of liability of any tenant or guarantor or the accrual of
any right in any tenant or guarantor to withhold payment of Rents; and (iv)
enforce the terms of the Credit Leases and all remedies available to the
Borrower as landlord under the Credit Leases against the tenants in any case of
any material default by any tenant under the Credit Leases.
1.6.3 AS TO THE OTHER LEASES. As to the Other Leases, Borrower, so long
as Borrower is not in default under this Assignment or any other Loan Documents
and is otherwise acting in good faith and in a commercially reasonable manner,
shall have the right, should any tenant of one or more of the Other Leases
become insolvent, fail to perform its lease obligations or abandon the leased
premises, to (i) waive, release, reduce, discount or cancel any Rents due under
said Other Leases and/or (ii) make any commercially prudent modification to such
Other Leases.
2. DEFAULT AND REMEDIES.
2.1 DEFAULT.
(a) It shall constitute an event of default ("Event of Default") of and
under this Assignment and, at the option of State Farm, under the other Loan
Documents, if
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Borrower shall fail to perform or observe any of the covenants, agreements or
conditions of this Assignment and any such failure shall remain uncured for
thirty (30) days or more after written notice to Borrower of the occurrence of
such failure.
(b) It shall constitute an Event of Default of and under this
Assignment if there shall occur under any of the Note, Mortgage or other Loan
Documents an Event of Default as defined in those Loan Documents.
2.2 REMEDIES.
(a) Upon the occurrence of an Event of Default, the License shall
automatically be revoked, cease and terminate without notice to the Borrower and
without regard to the adequacy or inadequacy of State Farm's security under this
Assignment, the Mortgage or the other Loan Documents. Thereupon, State Farm
shall be entitled to exercise any and all rights and remedies provided in this
Assignment, the Mortgage and the other Loan Documents or by law, including,
without limitation, those provided in Section 697.07 Florida Statutes. The
application of any Rents collected by State Farm shall be in accordance with the
terms of the Mortgage.
(b) The rights and remedies provided in this Assignment shall not be
deemed exclusive of any rights or remedies granted to State Farm in the Mortgage
or by law, but shall be deemed special and additional rights and remedies and
shall be cumulative with those rights and remedies granted in the Mortgage or by
law.
3. MISCELLANEOUS.
3.1 PERFECTION. This Assignment shall be perfected upon its recordation
among the public records of Palm Beach County, Florida. Neither possession of
the Rents nor the appointment of a Receiver of the Premises shall be required
for such perfection.
3.2 ASSIGNMENT. State Farm may assign its rights in and under this
Assignment to any subsequent holder of the Note and Mortgage and to any person
acquiring title to the Premises through foreclosure of the Mortgage or
otherwise.
3.3 OBLIGATIONS. State Farm shall not be obligated to perform or
discharge, nor, by its acceptance of this Assignment, does it undertake to
perform or discharge, any obligation, duty or liability of Borrower, as landlord
under the Leases, or otherwise. Nothing herein contained shall be construed as
causing State Farm to be a "Mortgagee in Possession" and State Farm shall have
no liability of a Mortgagee in Possession by exercising it rights under this
Assignment, all such liability being expressly waived and released by Borrower.
3.4 OWNERSHIP. Borrower represents and warrants that it is the absolute
owner of the Rents and Leases with full right, power and authority to execute
and deliver this Assignment. Each of the Leases is legally valid, binding upon
and enforceable against the tenant named therein and has not been changed or
modified except as stated on Exhibit B. There is no outstanding assignment or
pledge of the Rents or Leases or any one thereof, nor are there any
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existing defaults under the Leases or any one thereof. No tenant under any Lease
has any defenses, set offs or counterclaims against Borrower.
3.5 NOTICES. Any Notice required to be given hereunder shall be given
in the manner specified in the Mortgage.
3.6 CONFLICT. In the event of a conflict between the provisions of this
Assignment and any other Loan Documents, this Assignment shall control.
3.7 COOPERATION. Borrower agrees to cooperate with any reasonable
request of State Farm to implement the provisions of this Assignment.
3.8 SUCCESSORS AND ASSIGNS. Whenever the word "Borrower" is used
herein, it is agreed and understood that the same includes and shall be binding
upon the Borrower's successors and assigns and any party holding title to the
Premises by, through or under the Borrower. All of the rights, powers,
privileges and immunities herein granted and assigned to State Farm shall also
inure to its successors and assigns, including all holders of the Note and
Mortgage.
3.9 WAIVER OF TRIAL BY JURY. Borrower hereby waives, to the fullest
extent permitted by Applicable Law, the right to trial by jury in any action,
proceeding or counterclaim filed by any party, whether in contract, tort or
otherwise, relating, directly or indirectly to this Assignment or any acts or
omissions of the Borrower in connection therewith or contemplated thereby.
IN WITNESS WHEREOF, Borrower has caused this Assignment to be executed
by its undersigned officer(s) or other representative(s) thereunto duly
authorized as of the day and year first above written.
Signed, sealed and delivered in the
presence of the undersigned witnesses: XXXXXXX PROPERTIES RESIDENTIAL,
L.P., a Georgia limited partnership
/s/ Sherevone X. Xxxx By: XXXXXXX REALTY INVESTORS,
------------------------------------- INC., a Georgia corporation,
Signature of Witness its sole general partner
/s/ Sherevone X. Xxxx
-------------------------------------
Print/Type Name of Witness By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
Its Secretary, Treasurer
/s/ Mal Sport and Chief Financial Officer
-------------------------------------
Signature of Witness
Mal Sport (Corporate Seal)
-------------------------------------
Print/Type Name of Witness
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STATE OF GEORGIA
COUNTY OF XXXXXX
The foregoing instrument was acknowledged before me this 6th day of
November, 2001 by Xxxxxxx X. Xxxxxxx, as Secretary, Treasurer and Chief
Financial Officer of Xxxxxxx Realty Investors, Inc., a Georgia corporation, on
behalf of said corporation in its capacity as sole general partner of Xxxxxxx
Properties Residential, L.P., a Georgia limited partnership. He [X] is
personally known to me or [__] has produced __________________________________
(insert type of identification) as identification.
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------------
Notary Public
Commission No.
-----------------------------
My Commission Expires: August 16, 2002
--------------------
(NOTARIAL SEAL)
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EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
TRACT ONE: All of TRG POLO OF PALM BEACH POLO AND COUNTRY CLUB - WELLINGTON
P.U.D., according to the map or plat thereof, recorded in Plat Book 87, Pages
160-163 of the Public Records of Palm Beach County, Florida.
TRACT TWO: TOGETHER WITH those non-exclusive rights and easements appurtenant to
and benefiting the above described Tract One created and/or granted in and
pursuant to the following instruments:
(i) Declaration of Restrictive Covenants (North Berm Buffer) between
Palm Beach Polo and Country Club Property Owners' Association, Inc. and TRG-PC,
Ltd., recorded July 9, 1999 in O.R. Book 11222, Page 392, Public Records of Palm
Beach County, Florida, re-recorded February 3, 2000 in O. R. Book 11592, Page
520, aforesaid records, re-recorded on October 25, 2001 in O.R. Book 13022, Page
1686, aforesaid records.
(ii) Declaration of Restrictive Covenants (South Berm Buffer) among
Palm Beach Polo, Inc., Acme Improvement District, Palm Beach Polo and Country
Club Property Owners' Association, Inc. and TRG-PC, Ltd., recorded July 9, 1999
in O.R. Book 11222, Page 397, aforesaid records, re-recorded on October 25, 2001
in O.R. Book 13022, Page 1672, aforesaid records.
(iii) Declaration of Restrictive Covenants (East Buffer) between Palm
Beach Polo, Inc. and TRG-PC, Ltd., recorded July 9, 1999 in O.R. Book 11222,
Page 405, aforesaid records, re-recorded on October 25, 2001 in O.R. Book 13022,
Page 1680, aforesaid records.
(iv) Those easements (and only those easements) created in and granted
pursuant to Article XIII, Section 13.2 and Article XIII, Section 13.5 of that
certain Declaration of Master Covenants, Conditions and Restrictions of Palm
Beach Polo and Country Club between Palm Beach Polo and Country Club Property
Owners' Association, Inc. and Landmark Land Company of Florida, Inc., dated June
22, 1987, recorded June 26, 1987 in O.R. Book 5331, Page 1589, aforesaid
records; as amended by First Amendment to the Declaration of Master Covenants,
Conditions and Restrictions of Palm Beach Polo and Country Club by Landmark Land
Company of Florida, Inc., dated October 16, 1987, recorded October 20, 1987 in
O.R. Book 5455, Page 523, aforesaid records; as further amended by Amendment to
Declaration of Master Covenants, Conditions and Restrictions to Palm Beach Polo
and Country Club by Palm Beach Polo and Country Club Property Owners'
Association, Inc. and Landmark Land Company of Florida, Inc., dated November 6,
1987, recorded November 12, 1987 in O.R. Book 5480, Page 1632, aforesaid
records; as further amended by Second Amendment to the Declaration of Master
Covenants, Conditions and Restrictions of Palm Beach Polo and Country Club by
Landmark Land Company of Florida, Inc., dated July 26, 1988, recorded in O.R.
Book
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5755, Page 1305, aforesaid records; as further amended by Third Amendment to the
Declaration of Master Covenants, Conditions and Restrictions of Palm Beach Polo
and Country Club by Landmark Land Company of Florida, Inc., dated October 31,
1990, recorded in O.R. Book 6663, Page 782, aforesaid records; as further
amended by Fourth Amendment to Declaration of Master Covenants, Conditions and
Restrictions of Palm Beach Polo and Country Club by Landmark Land Company of
Florida, Inc., dated April 29, 1991, recorded May 17, 1991 in O.R. Book 6826,
Page 1150, aforesaid records; as affected by Assignment and Agreement between
Landmark Land Company of Florida, Inc. and Palm Beach Polo Development, L.P.,
dated as of November 21, 1988, recorded November 23, 1988 in O.R. Book 5882,
Page 657, aforesaid records; and as further affected by Partial Deannexation
from Covenants, Conditions and Restrictions of Palm Beach Polo and Country Club
by Palm Beach Polo Holdings, Inc., dated February 1, 2000, recorded February 3,
2000 in O.R. Book 11592, Page 513, aforesaid records, subject to the terms and
provisions of Article XIII, Section 13.2 and Article XIII, Section 13.5 of said
Declaration of Master Covenants, Conditions and Restrictions of Palm Beach Polo
and Country Club, as so amended.
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EXHIBIT B
CREDIT LEASE(S)
NONE
NOTE: All leases assigned by this Assignment are "Other Leases," as defined in
Section 1.1.2. of this Assignment.
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