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DRAWN BY AND RETURN TO:
Hunton & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
STATE OF ALABAMA
COUNTY OF DEKALB
AMENDED, RESTATED AND CONSOLIDATED
FIRST ASSIGNMENT OF XXXXXX'S INTEREST IN LEASE
THIS AMENDED, RESTATED AND CONSOLIDATED FIRST ASSIGNMENT OF XXXXXX'S
INTEREST IN LEASE (this "Assignment"), made this 20th day of December 1996 by
RIDGEVIEW, INC., a North Carolina corporation (hereinafter referred to as
"Assignor") to NATIONSBANK, N.A. (SOUTH) (hereinafter referred to as
"Assignee").
Assignor has previously executed and delivered (1) that certain First
Assignment of Xxxxxx's Interest in Lease dated January 10, 1995 in favor of
NationsBank, N.A. (Carolinas), as predecessor-in-interest of Assignee, recorded
at Misc. Book 410, Page 68 and UCC file number 180270, DeKalb County, Alabama
records (the "First Assignment"), and (2) that certain Second Assignment of
Xxxxxx's Interest in Lease dated January 10, 1995 in favor of NationsBank of
Georgia, N.A., as predecessor-in-interest of Assignee, recorded in Misc. Book
410, Page 81 and UCC file number 180271, DeKalb County, Alabama records, as
modified by First Amendment to Second Assignment of Lessee's Interest in Lease
dated June 11, 1996, recorded at Misc. Book 102, Page 141 and UCC file number
199371, aforesaid records, and by Second Amendment to Second Assignment of
Xxxxxx's Interest in Lease dated September 6, 1996, recorded at Misc. Book 104,
Page 4 and UCC file number 100714, aforesaid records (as so amended, the "Second
Assignment").
In connection with the amendment and restatement of the Loan Agreement
(as defined in the First Assignment) and the Loan Agreement (as defined in the
Second Assignment) in the form of that certain Amended and Restated Loan and
Security Agreement dated as of December 20, 1996 between Assignor and certain of
its subsidiaries as borrowers and
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Assignee as lender and the issuance thereunder of an Amended, Restated and
Consolidated Term Note in exchange for, but not in extinguishment of the
indebtedness evidenced by, the Note (as defined in the First Assignment) and
that certain Term Note dated June 28, 1995 made by Assignor in favor of
NationsBank of Georgia, N.A., as predecessor-in-interest of Assignee, in the
original principal amount of $1,000,000 and of an Amended and Restated Revolving
Credit Note in exchange for, but not in extinguishment of the indebtedness
evidenced by, the Note (as defined in the Second Assignment), the parties hereto
have agreed to amend, restate and consolidate the First Assignment and the
Second Assignment in the form of this Assignment; PROVIDED that the parties do
not intend this Assignment and the transactions contemplated hereby, and this
Assignment and the transaction contemplated hereby shall not be deemed, to
constitute a novation of any of the obligations secured by the First Assignment
or the Second Assignment.
W I T N E S S E T H:
FOR VALUE RECEIVED, and as additional security for the indebtedness
hereinafter mentioned, Assignor does hereby assign, set over, transfer, convey
and deliver unto Assignee, and does hereby grant to Assignee a security interest
in, all of Assignor's right, title and interest in and to that certain Xxxxx
dated as of November 1, 1978 by and between the Industrial Development Board of
the City of Fort Xxxxx, as Lessor, and Niota Textile Xxxxx, Company,
Incorporated, as Lessee, as recorded in the Office of Judge of Probate of DeKalb
County, Alabama in Deed Book 267 at Pages 291-345 (the "Lease"), the Assignor's
leasehold interest in said Lease having been assigned by Niota Textile Xxxxx,
Company, Incorporated to Assignor as of the 13th day of August, 1992, said
assignment being recorded in said Probate Office in Misc. Book 52 at Page 50. It
is the intention of Assignor to hereby assign to Assignee all right, title and
interest of Assignor in and to the Lease, whether or not the same have been
exercised, and whether or not the same are presently exercisable, including but
not limited to the following:
(1) The right of occupation and enjoyment of the demised
premises for the remaining term of the Lease;
(2) The right to exercise the options granted in Article IX of
the Lease;
(3) The right to assign or sublease all or any part of the
demised premises for or during the remaining term of the Lease in
accordance with Section 6.1 of the Lease; and
(4) Any and all rights of Assignor as Lessee of the Lease
contained or implied therein and not hereinbefore specifically
enumerated.
The term of this Assignment shall be until (i) that certain Term Note
and Revolving Credit Note, each as defined under that certain Amended and
Restated Loan and Security
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Agreement dated as of December 20, 1996 between Assignor and certain of its
Subsidiaries as borrowers and Assignee as Lender (as amended, modified,
supplemented or restated from time to time, the "Loan Agreement", unless
otherwise defined herein, terms defined in the Loan Agreement being used herein
as therein defined), shall have been fully paid and satisfied and all other
Secured Obligations shall have been satisfied, and (ii) the Revolving Credit
Facility has been terminated, at which time this Assignment is to be canceled
and released.
AND TO THAT END, Assignor does hereby further assign, set over,
transfer and convey and deliver unto Assignee all of Assignor's right, title and
interest in the Lease and all lease agreements, addenda and amendments thereto
and ratification and modifications thereof.
And Assignor does hereby authorize and empower Assignee, at the option
of Assignee: (1) to exercise any option to renew or purchase granted to the
lessee of the Lease and inuring to the benefit of Assignor, and (ii) to collect
any rents payable by any subtenant of Assignor under all of the said subleases
as they shall become due, and Assignor does hereby direct each and all of the
subtenants of the aforesaid premises, if any, to pay such rents as may now be
due or shall hereafter become due to Assignee upon demand for payment therefor
by Assignee.
It is understood and agreed, however, that no such demand shall be made
unless and until a Default or Event of Default shall have occurred and be
continuing; and, until such demand is made, Assignor is authorized to collect or
continue collecting rent from any and all subtenants, as aforesaid by Assignor,
its successors and assigns, and Assignor will not collect, demand or receive any
installments of rent in advance of the date prescribed in said sublease or
subleases for the payment thereof.
The authority and power of Assignee to collect said rents from said
property as set forth herein may be exercised and said rents collected with or
without the taking of possession of said real property, or any part thereof, and
without the necessity of any action upon any Note or the Loan Agreement or an
action upon this Assignment directly against any subleases assigned herewith.
And in furtherance of this Assignment, Assignor does hereby
specifically authorize and empower Assignee, by its employees, agents or
representatives, at the option of Assignee, upon the occurrence of any Default
or Event of Default as aforesaid, to enter upon the aforesaid premises and, upon
such entry, to take over and assume the tenancy of Assignor and the management,
operation and maintenance of said premises and to perform all acts necessary and
proper in its sole discretion and to expend such sums as may be necessary in
connection therewith. Assignor does hereby release all claims against Assignee
arising out of such assumption of the tenancy or management, operation and
maintenance, excepting the liability of Assignee to account as hereinafter set
forth.
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Assignor hereby covenants with Assignee that, in the event Assignor
exercises any option contained in the Lease to purchase the demised premises, or
any part thereof, such that Assignor becomes the owner of the fee ownership, or
any lesser possessory interest in said property not limited in time, of the real
property described on Exhibit "A" hereto or any portion thereof, that Assignor
will execute and deliver in favor of Assignee a mortgage encumbering said
property and securing the payment of the Secured Obligations according to the
terms of the Notes and the Loan Agreement.
This Assignment is given as additional security for the performance of
each and all of the Secured Obligations.
Assignee shall, after payment of all proper charges and expenses,
including reasonable compensation to such agents, employees or representatives
as shall be selected or employed, and after the accumulation of a reasonable
reserve to meet taxes, assessments, utility rents, and fire and extended
coverage and liability insurance in requisite amounts, credit the next amount of
income received by Assignee from the premises by virtue of this Assignment to
any amounts due and owing to Assignee by Assignor under the terms of any Note or
the Loan Agreement, but the manner of the application of such net income and
what items shall be credited shall be determined in the sole discretion of the
Assignee.
It is further covenanted and agreed that Assignor and its successors
and assigns shall have no right, power or authority to (and Assignor covenants
and agrees with the Assignee that Assignor will not) alter, modify, or amend the
terms of the Lease without first obtaining the advance consent of Assignee in
writing to such alteration, modification or amendment.
Assignee shall not be obligated to perform or discharge any obligation
or duty to be performed or discharged by Assignor under the Lease, and Assignor
hereby agrees to indemnify Assignee for, and to save it harmless from, any and
all liability arising from said Lease, or from this Assignment, and this
Assignment shall not place any responsibility for the control, care, management
or repair of said premises upon Assignee, or make Assignee responsible or liable
for any negligence in the management, operation, upkeep, repair or control of
said premises resulting in loss or injury or death to any tenant, licensee,
employee or stranger.
It is further covenanted and agreed that Assignor shall keep, observe
and perform all of the covenants on the part of the Lessee to be kept, observed
and performed under the Lease affecting any portion of the premises. If Assignor
fails to keep, observe and perform any covenant of the Lease, Assignee shall
have the right, at its option, to keep, observe and perform such covenant on
behalf of Assignor, or to declare with or without notice, the entire principal
balance of the Notes and the other Secured Obligations, plus accrued interest
thereon, immediately due and payable and avail itself of any and all remedies at
law, in equity or provided for in the Loan Agreement, in the event of a Default
or Event of Default. In the event that Assignee should exercise its option to
keep, observe or perform any of the Assignor's obligations under this Lease, it
shall be entitled to recover from Assignor
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immediately upon demand any expenses incurred or amounts advanced in performing
such covenants. Should Assignor fail to repay Assignee any such expenses or
advances as herein provided, Assignee may, at its option, with or without
notice, exercise any of the foregoing remedies available in the event of a
Default or Event of Default.
IT IS UNDERSTOOD AND AGREED that neither the existence of this
Assignment nor the exercise of its privileges hereunder, shall be construed as a
waiver by Assignee or its successors and assigns of the right to enforce payment
of the indebtedness evidenced by the Notes and the other Secured Obligations in
strict accordance with the terms and provisions of the Notes and the Loan
Agreement, for which this Assignment is given as security.
IT IS FURTHER UNDERSTOOD AND AGREED that the parties hereto have
entered into this Assignment solely to amend, restate and consolidate the First
Assignment and the Second Assignment. The parties do not intend this Assignment
or the transactions contemplated hereby to be, and this Assignment and the
transactions contemplated hereby shall not be construed to be, a novation of any
of the Secured Obligations, including, without limitation, under the Note under
and as defined in the First Assignment or the Note under and as defined in the
Second Assignment. Further, the parties do not intend this Assignment or the
transactions contemplated hereby to affect priority of any of Assignee's liens
in any collateral securing the Secured Obligations in any way, including but not
limited to the liens, security interests and encumbrances created by the First
Assignment or the Second Assignment.
The provisions hereof shall inure to the benefit of and be binding upon
the parties hereto, their permitted successors and assigns.
This Assignment shall be governed by, and construed in accordance with,
the laws of the State of Alabama.
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IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment
to be duly executed under seal as of the date first above written.
ATTEST: RIDGEVIEW, INC., a North
Carolina corporation
By:__________________________ By:__________________________
Name:________________________ Xxxx X. Xxxxxxx
Title:_______________________ President
NATIONSBANK, N.A. (SOUTH)
By:__________________________
Xxxxx X. Xxxxxxxxx
President
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STATE OF ____________________
COUNTY OF ___________________
I, the undersigned authority, a Notary Public in and for said county in
said state, hereby certify that Xxxx X. Xxxxxxx, whose name as President of
RIDGEVIEW, INC., a North Carolina corporation, is signed to the foregoing
Amended, Restated and Consolidated Assignment of Xxxxxx's Interest in Lease, and
who is known to me, acknowledged before me on this day that, being informed of
the contents of same, he executed the same, with full authority for and as the
act of said corporation on the day same bears date.
Given under my hand and official seal this ___ day of December, 1996.
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Notary Public
STATE OF ____________________
COUNTY OF ___________________
I, the undersigned authority, a Notary Public in and for said county in
said state, hereby certify that Xxxxx X. Xxxxxxxxx, whose name as Vice President
of NATIONSBANK, N.A. (SOUTH), a national banking association, is signed to the
foregoing Amended, Restated and Consolidated Assignment of Xxxxxx's Interest in
Lease, and who is known to me, acknowledged before me on this day that, being
informed of the contents of same, he executed the same, with full authority for
and as the act of said national banking association on the day same bears date.
Given under my hand and official seal this ___ day of December, 1996.
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Notary Public
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