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Exhibit 10(k)(4)(b)
THIS INSTRUMENT PREPARED BY,
AND FOLLOWING RECORDING RETURN TO:
Xxxxxxx X. Xxxxxxxx, Esq.
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
ASSIGNMENT OF LEASES AND RENTS
FROM
XXXXX EQUITY, INC.
TO
FIRST UNION NATIONAL BANK OF FLORIDA
AND
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
DATED AS OF APRIL 7 , 1997
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ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") is made and
executed as of this 7th day of April, 1997, from
XXXXX EQUITY, INC., a Florida corporation ("Assignor"), whose address is 0000
Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 Attention: X.X.
Xxxxxx, Executive Vice President, to and in favor of
FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association ("FUNB"),
whose address is 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 Attention:
Real Estate Portfolio Management, and XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, a New York banking corporation ("MGT"), whose address is 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx X'Xxxxxxx (FUNB and MGT together
being referred to as "Assignee"),
which terms Assignor and Assignee, whenever hereinafter used will be construed
to refer to and include the heirs, legal representatives, executors,
administrators, successors and assigns of said parties.
R E C I T A L S:
A. Assignor is the mortgagor under that certain Deed of Trust and
Security Agreement given by Assignor to Assignee, as beneficiary, 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 those certain Revolving
Promissory Notes of even date herewith (the "Notes"), 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.
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:
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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 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 hereby 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 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 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
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Assignor resulting from Assignee'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 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 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, 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 under any of the Leases or upon Assignee's request, Assignor 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 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
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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 As
signee 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 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 conditions of the Notes 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 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 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.
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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.
IN WITNESS WHEREOF, Assignor has executed this Assignment under seal
the day and year first above written.
ASSIGNOR:
XXXXX EQUITY, INC.,
Attest: a Florida corporation
By: /s/ Xxxxx X. Xxxxx By: /s/ G. Xxxxx Xxxxxxx
-------------------------- ----------------------------
Name: Xxxxx X. Xxxxx Name: G. Xxxxx Xxxxxxx
------------------------- ----------------------------
Its Asst. Secretary Its Treasurer
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[AFFIX CORPORATE SEAL]
STATE OF Georgia :
COUNTY OF Camden :
I, Xxxxxxxxx X. Xxxx, a Notary Public of the County of Camden, State of
Georgia, do hereby certify that Xxxxx X. Xxxxx, personally appeared before me
this day and acknowledged that she is the Asst. 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/herself as
its Asst. Secretary.
Witness my hand and official seal this 7th day of April , 1997.
Xxxxxxxxx X. Xxxx
-----------------------------
Notary Public
My commission expires:9-28-98
[NOTARIAL SEAL]
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EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
[LEGAL DESCRIPTION OF REAL PROPERTY NOT INCLUDED IN FORM 8-K FILING WITH
SECURITIES AND EXCHANGE COMMISSION]
