Exhibit 10.12.4
After Recording return to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxxxxx & Xxxxxx, LLP
0000 Xxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
STATE OF GEORGIA
COUNTY OF XXXXXX
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT, made and entered into this 30 day of May, 2003, by and
between XXXXXXX PROPERTIES RESIDENTIAL, L.P., a Georgia limited partnership
(hereinafter referred to as "Borrower"), and COMPASS BANK (hereinafter referred
to as "Lender")
W I T N E S S E T H:
THAT FOR AND IN CONSIDERATION of the sum of Ten and No/100 Dollars
($10.00) and other good and valuable considerations, the receipt and sufficiency
whereof are hereby acknowledged, and in order to secure the indebtedness and
other obligations of Borrower hereinafter set forth, Borrower does hereby grant,
transfer and assign to Lender, its successors, successors-in-title and assigns,
all of Borrower's right, title and interest in, to and under all of those leases
and rental agreements now existing and hereafter made, and including any and all
extensions, renewals and modifications thereof, and all security deposits and
other refundable and non-refundable deposits paid by the tenants thereunder
(said leases and rental agreements are hereinafter referred to collectively as
the "Leases", and the tenants and lessees thereunder are hereinafter referred to
collectively as "Tenants" or individually as "Tenant" as the context requires),
which Leases cover or shall cover portions of certain real property described in
Exhibit "A" attached hereto and by this reference made a part hereof and/or the
improvements thereon (said real property and improvements hereinafter
collectively referred to as the "Premises"); together with all of Borrower's
right, title and interest in and to all rents, issues and profits from the
Leases and from the Premises.
TO HAVE AND TO HOLD unto Lender, its successors and assigns, forever,
subject to and upon the terms and conditions set forth herein.
This Assignment is made for the purpose of securing (a) the full and
prompt payment when due, whether by acceleration or otherwise, with such
interest as may accrue thereon, either
Exhibit 10.12.4
before or after maturity thereof, of that certain Promissory Note dated of even
date herewith, made by Borrower to the order of Lender in the principal face
amount of SIX MILLION FIVE HUNDRED THOUSAND AND NO/100THS DOLLARS
($6,500,000.00) (hereinafter referred to as the "Note"), together with any
renewals, modifications, consolidations and extensions thereof and amendments
thereto and all advances of principal thereunder, (b) the full amount and prompt
payment and performance of any and all obligations of Borrower to Lender under
the terms of the Future Advance Deed to Secure Debt, Assignment of Rents and
Leases and Security Agreement from Borrower to Lender, dated of even date
herewith and securing the indebtedness evidenced by the Note (hereinafter
referred to as the "Security Instrument"), (c) the full amount and prompt
payment and performance of any and all obligations of Borrower to Lender under
the terms of the Construction Loan Agreement between Borrower and Lender, dated
of even date herewith ("Loan Agreement") and (d) the full and prompt payment and
performance of any and all other obligations of Borrower to Lender under any
other instruments now or hereafter evidencing, securing, or otherwise relating
to the indebtedness evidenced by the Note (the Note, Security Instrument, Loan
Agreement and said other instruments are hereinafter referred to collectively as
the "Loan Documents," and said indebtedness is hereinafter referred to as the
"Indebtedness").
ARTICLE I
WARRANTIES AND COVENANTS
1.01 Warranties of Borrower. Borrower hereby warrants and
represents as follows:
(a) Borrower is the sole holder of the landlord's interest under
the Leases, is entitled to receive the rents, issues and profits from the Leases
and from the Premises, and has good right to sell, assign, transfer and set over
the same and to grant to and confer upon Lender the rights, interests, powers,
and authorities herein granted and conferred;
(b) Borrower has made no assignment other than this Assignment of
any of the rights of Borrower under any of the Leases or with respect to any of
said rents, issues or profits;
(c) Borrower has neither done any act nor omitted to do any act
which might prevent Lender from, or limit Lender in, acting under any of the
provisions of this Assignment;
(d) All Leases provide for rental to be paid monthly, in advance,
and Borrower has not accepted payment of rental under any of the Leases for more
than one (1) month in advance of the due date thereof;
(e) There exists no default or event of default or any state of
facts which would, with the passage of time or the giving of notice, or both,
constitute a default or event of default on the part of Borrower or by any
Tenant under the terms of any of the Leases;
(f) Neither the execution and delivery of this Assignment or any
of the Leases, the performance of each and every covenant of Borrower under this
Assignment and the Leases, nor the meeting of each and every condition contained
in this Assignment, conflicts with, or
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Exhibit 10.12.4
constitutes a breach or default under any agreement, indenture or other
instrument to which Borrower is a party, or any law, ordinance, administrative
regulation or court decree which is applicable to Borrower;
(g) No action has been brought or is threatened, which would
interfere in any way with the right of Borrower to execute this Assignment and
perform all of Borrower's obligations contained in this Assignment and in the
Leases; and
(h) The Leases are valid, enforceable and in full force and
effect.
1.02 Covenants of Borrower. Borrower hereby covenants and agrees as
follows:
(a) Borrower shall (i) fulfill, perform and observe each and every
condition and covenant of landlord or lessor contained in each of the Leases;
(ii) give prompt notice to Lender of any claim of default under any of the
Leases, whether given by the Tenant to Borrower, or given by Borrower to the
Tenant, together with a complete copy of any such notice; (iii) at no cost or
expense to Lender, enforce, short of termination, the performance and observance
of each and every covenant and condition of each of the Leases, to be performed
or observed by the Tenant thereunder; and (iv) appear in and defend any action
arising out of, or in any manner connected with, any of the Leases, or the
obligations or liabilities of Borrower as the landlord thereunder, or of the
Tenant or any guarantor thereunder;
(b) Except as provided in the Loan Agreement, Borrower shall not,
without the prior written consent of Lender, (i) materially modify any of the
Leases; (ii) terminate the term or accept the surrender of any of the Leases;
(iii) waive or release any Tenant from the performance or observance by such
Tenant of any obligation or condition of the Lease to which such Tenant is a
party; (iv) permit the prepayment of any rents under any of the Leases for more
than one (1) month prior to the accrual thereof; (v) give any consent to any
assignment or sublease by any Tenant under any Lease; or (vi) assign its
interest in, to or under the Leases or the rents, issues and profits from the
Leases and from the Premises to any person or entity other than Lender;
(c) Except as provided in the Loan Agreement, Borrower shall not,
without the prior written consent of Lender, enter into any Lease unless the
Tenant thereunder shall have been approved in writing by Lender and said Lease
is in form and content satisfactory to and approved in writing by Lender;
(d) Borrower shall protect, indemnify and save harmless Lender
from and against all liabilities, obligations, claims, damages, penalties,
causes of action, costs and expenses (including, without limitation, attorneys'
fees and expenses) imposed upon or incurred by Lender by reason of this
Assignment and any claim or demand whatsoever which may be asserted against
Lender by reason of any alleged obligation or undertaking to be performed or
discharged by Lender under this Assignment. In the event Lender incurs any
liability, loss or damage by reason of this Assignment, or in the defense of any
claim or demand arising out of or in connection with this Assignment, the amount
of such liability, loss or damage shall be added to the Indebtedness, shall bear
interest at the per annum rate equal to the Prime Rate (as defined in
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Exhibit 10.12.4
the Note) plus 2% ("Default Interest") from the date incurred until paid and
shall be payable on demand;
(e) Borrower shall authorize and direct, and does hereby authorize
and direct each and every present and future Tenant of the whole or any part of
the Premises to pay all rental to Lender upon receipt of written demand from
Lender to so pay the same;
(f) The warranties and representations of Borrower made in
Paragraph 1.01 hereof and the covenants and agreements of Borrower made in this
Paragraph apply to each Lease in effect as of the time of execution of this
Assignment, and shall apply to each Lease hereafter made at the time each such
future Lease becomes effective.
(g) At the request of Lender, Borrower immediately shall deliver
to Lender all security deposits and other deposits, if any, (whether refundable
or non-refundable) paid by Tenants under the Leases; and Lender shall hold such
deposits in a custodial account controlled by Lender, subject to the terms and
conditions of the Leases.
1.03 Covenants of Lender. Lender, by its acceptance of this
Assignment, hereby covenants and agrees with Borrower as follows:
(a) Although this Assignment constitutes a present and current
assignment of all rents, issues and profits from the Premises, so long as there
shall exist no Default, Lender shall not demand that such rents, issues and
profits be paid directly to Lender, and Borrower shall have the right to
collect, but no more than one (1) month prior to accrual, all such rents, issues
and profits from the Premises (including, but not by way of limitation, all
rental payments under the Leases); and
(b) Upon the payment in full of the Indebtedness, as evidenced by
the recording or filing of an instrument of satisfaction or full release of the
Security Instrument without the recording of another security instrument in
favor of Lender affecting the Premises, this Assignment shall be terminated and
released of record by Lender and shall thereupon be of no further force or
effect; and
(c) Lender acknowledges that at the time of execution of this
Assignment, no Leases have been executed for the Premises.
ARTICLE II
DEFAULT
2.01 Default. The term, "Default," wherever used in this
Assignment, shall mean any one or more of the following events:
(a) The occurrence of any "Event of Default" under any of the Loan
Documents;
(b) The failure by Borrower duly and fully to comply with any
covenant, condition or agreement of this Assignment and the continuance of such
failure for thirty (30) days or more after written notice thereof from Lender to
Borrower (or in the event said default cannot be cured within
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Exhibit 10.12.4
30 days, said period may be extended for up to an additional 60 days provided
Borrower is diligently attempting to cure same); or
(c) The breach of any warranty by Borrower contained in this
Assignment.
2.02 Remedies. Upon the occurrence of any Default, Lender may at
its option, with or without notice or demand of any kind, exercise any or all of
the following remedies:
(a) Declare any part or all of the Indebtedness to be due and
payable, whereupon the same shall become immediately due and payable;
(b) Perform any and all obligations of Borrower under any or all
of the Leases or this Assignment and exercise any and all rights of Borrower
herein or therein as fully as Borrower himself could do, including, without
limitation of the generality of the foregoing: enforcing, modifying, extending
or terminating any or all of the Leases; collecting, modifying, compromising,
waiving or increasing any or all the rents payable thereunder; and obtaining new
tenants and entering into new leases on the Premises on any terms and conditions
deemed desirable by Lender; and, to the extent Lender shall incur any costs in
connection with the performance of any such obligations of Borrower, including
costs of litigation, then all such costs shall become a part of the
Indebtedness, shall bear interest from the incurring thereof at the rate of
Default Interest specified in the Note, and shall be due and payable on demand;
(c) In Borrower's or Lender's name, institute any legal or
equitable action which Lender in its sole discretion deems desirable to collect
and receive any or all of the rents, issues and profits assigned herein;
(d) Collect the rents, issues and profits and any other sums due
under the Leases and with respect to the Premises, and apply the same in such
order as Lender in its sole discretion may elect against (i) all costs and
expenses, including reasonable attorneys' fees, incurred in connection with the
operation of the Premises, the performance of Borrower's obligations under the
Leases and collection of the rents thereunder; (ii) all the costs and expenses,
including reasonable attorneys' fees, incurred in the collection of any or all
of the Indebtedness, including all costs, expenses and attorneys' fees incurred
in seeking to realize on or to protect or preserve Lender's interest in any
other collateral securing any or all of the Indebtedness; and (iii) any or all
unpaid principal and interest on the Indebtedness.
Lender shall have the full right to exercise any or all of the
foregoing remedies without regard to the adequacy of security for any or all of
the Indebtedness, and with or without the commencement of any legal or equitable
action or the appointment of any receiver or trustee, and shall have full right
to enter upon, take possession of, use and operate all or any portion of the
Premises which Lender in its sole discretion deems desirable to effectuate any
or all of the foregoing remedies.
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Exhibit 10.12.4
ARTICLE III
GENERAL PROVISIONS
3.01 Successors and Assigns. This Assignment shall inure to the
benefit of and be binding upon Borrower and Lender and their respective heirs,
executors, legal representatives, successors and assigns. Whenever a reference
is made in this Assignment to "Borrower" or "Lender", such reference shall be
deemed to include a reference to the heirs, executors, legal representatives,
successors and assigns of Borrower or Lender.
3.02 Terminology. All personal pronouns used in this Assignment,
whether used in the masculine, feminine or neuter gender, shall include all
other genders, and the singular shall include the plural, and vice versa. Titles
of articles are for convenience only and neither limit nor amplify the
provisions of this Assignment.
3.03 Severability. If any provision of this Assignment or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Assignment and the
application of such provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
3.04 Applicable Law. This Assignment shall be governed by and
construed and enforced in accordance with the substantive, and not the conflict,
laws of the State of Georgia.
3.05 No Third Party Beneficiaries. This Assignment is made solely
for the benefit of Lender and its assigns. No Tenant under any of the Leases nor
any other person shall have standing to bring any action against Lender as the
result of this Assignment, or to assume that Lender will exercise any remedies
provided herein, and no person other than Lender shall under any circumstances
be deemed to be a beneficiary of any provision of this Assignment.
3.06 No Oral Modifications. Neither this Assignment nor any
provisions hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought.
3.07 Cumulative Remedies. The remedies herein provided shall be in
addition to and not in substitution for the rights and remedies vested in Lender
in or by any of the Loan Documents or in law or equity, all of which rights and
remedies are specifically reserved by Lender. The remedies herein provided or
otherwise available to Lender shall be cumulative and may be exercised
concurrently. The failure to exercise any of the remedies herein provided shall
not constitute a waiver thereof, nor shall use of any of the remedies herein
provided prevent the subsequent or concurrent resort to any other remedy or
remedies. It is intended that this clause shall be broadly construed so that all
remedies herein provided or otherwise available to Lender shall continue to be
each and all available to Lender until the Indebtedness shall have been paid in
full.
3.08 Cross-Default. A Default by Borrower under this Assignment
shall constitute an event of default under the other Loan Documents.
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Exhibit 10.12.4
3.09 Counterparts. This Assignment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties or signatories hereto may execute this
Assignment by signing any such counterpart.
3.10 Further Assurance. At any time and from time to time, upon
request by Lender, Borrower will make, execute and deliver, or cause to be made,
executed and delivered, to Lender and, where appropriate, cause to be recorded
and/or refiled at such time and in such offices and places as shall be deemed
desirable by Lender, any and all such other and further assignments, deeds to
secure debt, mortgages, deeds of trust, security agreements, financing
statements, continuation statements, instruments of further assurance,
certificates and other documents as may, in the opinion of Lender, be necessary
or desirable in order to effectuate, complete or perfect, or to continue and
preserve (a) the obligations of Borrower under this Assignment and (b) the
security interest created by this Assignment as a first and prior security
interest upon the Leases and the rents, issues and profits from the Premises.
Upon any failure by Borrower so to do, Lender may make, execute, record, file,
re-record and/or refile any and all such assignments, deeds to secure debt,
mortgages, deeds of trust, security agreements, financing statements,
continuation statements, instruments, certificates, and documents for and in the
name of Borrower, and Borrower hereby irrevocably appoints Lender the agent and
attorney-in-fact of Borrower so to do.
3.11 Notices. Any and all notices, elections or demands permitted
or required to be made under this Assignment shall be in writing, signed by the
party giving such notice, election or demand and shall be delivered personally,
or sent by overnight courier service by a company regularly engaged in the
business of delivering business packages (such as Federal Express), or sent by
registered or certified United States mail, postage prepaid, to the other party
at the address set forth below, or at such other address within the continental
United States of America as may have theretofore been designated in writing. The
effective date of such notice, election or demand shall be the date of personal
delivery or, if sent by overnight courier then the date of delivery as evidenced
by the courier's receipt, or, if mailed, then the third day after the date of
postmark. For the purposes of this Assignment:
The Address of Lender is:
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000
Attn: Commercial Real Estate Loan Department
The Address of Borrower is:
0000 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxx, XX 00000
3.12 Modifications, etc. Borrower hereby consents and agrees that
Lender may at any time, and from time to time, without notice to or further
consent from Borrower, either with or
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Exhibit 10.12.4
without consideration, surrender any property or other security of any kind or
nature whatsoever held by it or by any person, firm or corporation on its behalf
or for its account, securing the Indebtedness; substitute for any collateral so
held by it, other collateral of like kind, or of any kind; agree to modification
of the terms of the Note or the Loan Documents; extend or renew the Note or any
of the Loan Documents for any period; grant releases, compromises and
indulgences with respect to the Note or the Loan Documents to any persons or
entities now or hereafter liable thereunder or hereunder; release any guarantor
or endorser of the Note, the Security Instrument, or any other Loan Document; or
take or fail to take any action of any type whatsoever, and no such action which
Lender shall take or fail to take in connection with the Loan Documents, or any
of them, or any security for the payment of the Indebtedness or for the
performance of any obligations or undertakings of Borrower, nor any course of
dealing with Borrower or any other person, shall release Borrower's obligations
hereunder, affect this Assignment in any way or afford Borrower any recourse
against Lender. The provisions of this Assignment shall extend and be applicable
to all renewals, amendments, extensions, consolidations and modifications of the
Loan Documents and the Leases, and any and all references herein to the Loan
Documents or the Leases shall be deemed to include any such renewals,
amendments, extension, consolidation or modifications thereof.
IN WITNESS WHEREOF, Borrower has executed this Assignment under seal,
the date and year first above written.
As to Borrower, signed, sealed and BORROWER:
delivered in the presence of:
XXXXXXX PROPERTIES RESIDENTIAL, L.P.,
/s/ Xxxxxx X. XxXxxx a Georgia limited partnership
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Witness
BY: XXXXXXX REALTY INVESTORS, INC.,
/s/ Xxxxxx X. Xxxxxxx a Georgia corporation, its general partner
----------------------------------
Notary Public
My commission expires:____________ By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
[NOTARY STAMP] Title: Chief Operating Officer and
Secretary
[CORPORATE SEAL]
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