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EXHIBIT 10(k)(3)(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
ASSIGNMENT OF LEASES AND RENTS
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THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") is made and
executed as of this 29th 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 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 DeKalb County, Georgia (the "Deed to Secure
Debt"); securing those certain Substitution Revolving Promissory Notes and
Revolving Promissory Notes of even date herewith (the "Notes"), encumbering
certain real property interests located in DeKalb 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.
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
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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 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 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,
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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 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
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 South 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.
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7. Upon a default under the Notes, 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 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 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 Deed to Secure Debt 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 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
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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.
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
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Name: W. Xxxxxxxx Xxxxxxx By: /s/ G. Xxxxx Xxxxxxx
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Its: Secretary Name: G. Xxxxx Xxxxxxx
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Title: Treasurer
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[AFFIX CORPORATE SEAL]
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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
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Notary Public Camden County, Georgia
My commission expires: Feb. 1, 1999
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[NOTARIAL SEAL]
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EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
[Contained herein is the metes and bounds legal descriptions of the property.]
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