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EXHIBIT 10(k)(4)(b)(ii)
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, AS AGENT
DATED AS OF DECEMBER 30, 1998
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ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") is made and
executed as of this 30th day of December, 1998, from
XXXXX EQUITY, INC., a Florida corporation ("Assignor"), whose address is 0000
Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 Attention: X.X. Xxxxxx,
President,
to and in favor of
FIRST UNION NATIONAL BANK, a national association, as Agent ("Assignee"), for
the Lenders under that certain Second Amended and Restated Revolving Credit Loan
Agreement (the "Loan Agreement"), whose address is 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attention: First Union Capital Markets Group.
The terms Borrower and Lender, whenever hereinafter used will be construed to
refer to and include the heirs, legal representatives, executors,
administrators, successors and assigns of said parties.
Capitalized terms not defined herein shall have the meanings ascribed to them in
the Loan Agreement.
R E C I T A L S:
A. Assignor is the grantor under that certain Deed to Secure Debt,
Assignment of Leases and Rents and Security Agreement given by Assignor to
Assignee dated of even date herewith and recorded or to be recorded in the
public records of Gwinnett County, Georgia (the "Deed to Secure Debt"); securing
the following Substitution Revolving Promissory Notes and Revolving Promissory
Notes: (i) the Substitution Revolving Promissory Note dated as of even date
herewith made by Assignor payable to the order of FUNB in the original principal
amount of $45,000,000, (ii) the Substitution Revolving Promissory Note dated as
of even date herewith made by Assignor payable to the order of AmSouth in the
original principal amount of $35,000,000, (iii) the Substitution Revolving
Promissory Note dated as of even date herewith made by Assignor payable to the
order of GFB in the original principal amount of $35,000,000, (iv) the Revolving
Promissory Note dated as of even date herewith made by Assignor payable to the
order of Citizens in the original principal amount of $20,000,000, and (v) the
Revolving Promissory Note dated as of even date herewith made by Assignor
payable to the order of Compass in the original principal amount of $15,000,000
(collectively, the "Notes"), encumbering certain real property interests located
in Gwinnett County, Georgia, 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.
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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:
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 Loan Agreement, the Deed to Secure Debt 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
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directs the lessees named in said Leases or any other or future lessees or
occupants of the Premises described therein or in the Deed to Secure Debt upon
receipt from the Assignee of written notice to the effect that Assignee is then
the holder of the Notes and the Deed to Secure Debt 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 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 (except as a result of Assignee's gross negligence or
wilful misconduct) 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 to Secure Debt 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 to
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Secure Debt, and to all renewals, modifications, amendments, consolidations,
replacements, refinancings and extensions of the Deed to Secure Debt, 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 to Secure Debt, acceptance of a
deed in lieu of foreclosure or exercise of any other remedy provided in the Deed
to Secure Debt, or pursuant to the laws of the State of Georgia. If requested by
a tenant or Assignor under any of the Leases or upon Assignee's request,
Assignor and Assignee 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 Loan Agreement, the Deed to
Secure Debt 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, the Loan Agreement, or the Deed to Secure Debt, 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, the
Loan Agreement, or the Deed to Secure Debt. 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 Loan Agreement, the Deed to Secure Debt or this Assignment, or
now or hereafter existing in equity, at law or by virtue of statute or
otherwise. Nothing
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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,
the Loan Agreement, or the Deed to Secure Debt.
9. Assignee may take or release other security for the payment of
the indebtedness under the Notes and the Deed to Secure Debt, 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 to Secure Debt 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 Deed to Secure Debt
and any cancellation, satisfaction or release of the Deed to Secure Debt 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 to Secure
Debt, then such property and the Leases relating to it shall, effective with the
release, also be released from this Assignment.
13. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ASSIGNOR, THE ASSIGNEE, AND THE LENDERS, THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS (ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") EACH
ACKNOWLEDGE AND AGREE THAT NONE OF THEM SHALL SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR PROCEDURE BASED UPON OR
ARISING OUT OF THIS ASSIGNMENT OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE
PARTIES RELATED THERETO. NONE OF THE PARTIES SHALL SEEK TO CONSOLIDATE ANY SUCH
ACTION INTO ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE
PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES, ARE MADE
KNOWINGLY,
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VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A MATERIAL INDUCEMENT FOR THE
LENDERS TO MAKE THE LOAN TO ASSIGNOR, AND SHALL BE SUBJECT TO NO EXCEPTIONS.
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IN WITNESS WHEREOF, Assignor has executed this Assignment under seal
the day and year first above written.
Signed, sealed and delivered in ASSIGNOR:
the presence of:
XXXXX EQUITY, INC.,
a Florida corporation
/s/ Xxxx X. Xxxxxxxx, Xx.
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Unofficial Witness Xxxx X. Xxxxxxxx, Xx. By: /s/ G. Xxxxx Xxxxxxx
---------------------- ----------------------------
Name: G. Xxxxx Xxxxxxx
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Title: Treasurer
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Attest: /s/ W. Xxxxxxxx Xxxxxxx
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Name: W. Xxxxxxxx Xxxxxxx
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Title: Corporate Secretary
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[AFFIX CORPORATE SEAL]
/s/ Xxx Xxxxx
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Notary Public
My Commission Expires: February 1, 0000
Xxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx
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[Notary Seal]
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EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
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