1
EXHIBIT 10(k)(4)(b)
THIS INSTRUMENT PREPARED BY
AND RECORD AND RETURN TO:
Xxxx X. Xxxxxxxx, Xx., Esq.
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000-0000
ASSIGNMENT OF LEASES AND RENTS
FROM
XXXXX EQUITY, INC.
TO
FIRST UNION NATIONAL BANK,
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
AMSOUTH BANK
AND
GUARANTY FEDERAL BANK F.S.B.
DATED AS OF DECEMBER 29, 1997
NORTH CAROLINA PROPERTIES
2
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") is made and
executed as of this 29 day of December, 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, President,
to and in favor of
FIRST UNION NATIONAL BANK, a national banking association ("FUNB"), XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation ("MGT"),
AMSOUTH BANK, a state banking corporation ("AmSouth"), and GUARANTY FEDERAL BANK
F.S.B., a federal savings bank ("GFB") (FUNB, MGT, AmSouth and GFB collectively
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.
For purposes of notices permitted or required to be given hereunder, FUNB's
mailing address is 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: First Union Capital Markets Group, MGT's mailing address is 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xx. Xxxx Xxxxxx, Vice President, XX
Xxxxxx. AmSouth's mailing address is 00 Xxxx Xxx Xxxxxx, Xxxxxxxxxxxx, XX
00000-0000 Attention: Mr. Xxxxx Coffee, Vice President, and GFB's mailing
address is 0000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000 Attention: Real Estate Officer.
R E C I T A L S:
A. Assignor is the mortgagor under that certain Amended and
Restated 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 Substitution Revolving Promissory Notes and 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
NORTH CAROLINA PROPERTIES
1
3
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 Mortgage 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 Mortgage
upon receipt from the Assignee of written notice to the effect that Assignee is
then the holder of the Notes and the Mortgage 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.
NORTH CAROLINA PROPERTIES
2
4
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 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 Mortgage 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 Mortgage,
and to all renewals, modifications, amendments, consolidations, replacements,
refinancings and extensions of the Mortgage, 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 Mortgage, acceptance of a deed in lieu of
foreclosure or exercise of any other remedy provided in the Mortgage, 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
NORTH CAROLINA PROPERTIES
3
5
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 Mortgage 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 or the Mortgage, 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 Mortgage. 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 Mortgage 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 Mortgage.
9. Assignee may take or release other security for the payment of the
indebtedness under the Notes and the Mortgage, 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.
NORTH CAROLINA PROPERTIES
4
6
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 Mortgage 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 Mortgage and any
cancellation, satisfaction or release of the Mortgage shall constitute a
cancellation, satisfaction, or release of this Assignment. In the event that a
specific property is released from the lien of the Mortgage, 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:
Attest: XXXXX EQUITY, INC.,
a Florida corporation
By: /s/ W. Xxxxxxxx Xxxxxxx By: /s/ G. Xxxxx Xxxxxxx
------------------------------- ------------------------------
Name: W. Xxxxxxxx Xxxxxxx Name: G. Xxxxx Xxxxxxx
----------------------------- ----------------------------
Its: Secretary Title: Treasurer
---------- ---------------------------
[AFFIX CORPORATE SEAL]
NORTH CAROLINA PROPERTIES
5
7
STATE OF Georgia :
COUNTY OF Camden :
I, Xxx Xxxxx, a Notary Public of the County of Camden, State of
Georgia, do hereby certify that W. Xxxxxxxx Xxxxxxx, personally appeared
before me this day and acknowledged that he/she 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/herself as
its ________ Secretary.
Witness my hand and official seal this 29th day of December, 1997.
/s/ Xxx Xxxxx
-------------------------------------
Notary Public
My commission expires: Feb. 1, 1999
---------------
[NOTARIAL SEAL]
NORTH CAROLINA PROPERTIES
6
8
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
[Contained herein is the metes and bounds legal descriptions of the property.]
NORTH CAROLINA PROPERTIES
7
