Exhibit 10.19.4
Space Above Reserved for Recorder's Use
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This instrument was prepared by,
Xxxx X. Xxxxxxxxx
XXXX & XXXXXX, LLP
000 Xxxx Xxxxxxxxx Xxxxxx
Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
(000) 000-0000
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") made this 28th
day of June, 2001, by XXXXXXX PROPERTIES RESIDENTIAL, L.P., a Georgia Limited
Partnership (hereinafter "Borrower"), whose address is 0000 Xxxxxxx Xxxx, Xxxxx
000, Xxxxxxx, XX 00000, to SOUTHTRUST BANK, an Alabama banking corporation (
"Lender"), whose address is P.O. Box 2554, Attention: Commercial Real Estate,
Xxxxxxxxxx, Xxxxxxx 00000.
R E C I T A L S:
Pursuant to a Loan Agreement of even date herewith between Borrower and
Lender (the "Loan Agreement"), Lender has agreed to make a loan to Borrower in
the principal amount of $3,000,000.00 (the "Loan"), which Loan is evidenced by a
Promissory Note of even date herewith executed and delivered by Borrower to
Lender in said amount (the "Note"). The Loan is secured in part by a Deed to
Secure Debt of even date herewith from Borrower to Lender (the "Security
Instrument") encumbering the real property more particularly described in
Exhibit A attached hereto and the improvements located thereon (collectively,
the "Property"). This Assignment, the Loan Agreement, the Note, the Security
Instrument, and all such other documents now or hereafter evidencing, securing,
or otherwise relating to the Loan, together with all extensions, modifications,
replacements, renewals or amendments thereof, are collectively referred to
herein as the "Loan Documents."
To induce Lender to make the Loan, Borrower has agreed to execute and
deliver this Assignment as additional security for the payment of the Loan and
the payment and performance of all obligations of Borrower under the Loan
Documents.
NOW, THEREFORE, in consideration of the foregoing recitals and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and as an inducement to Lender to make the Loan to Borrower,
Borrower hereby agrees with Lender, and represents and warrants to Lender, as
follows:
1. Assignment. As security for the payment of the Loan and the payment
and performance of all obligations of Borrower under this Assignment, the Loan
Agreement, the Note, and the other Loan Documents (collectively, the
"Obligations"), Borrower hereby sells, assigns, transfers, and sets over unto
Lender, its successors and assigns, all of Borrower's interest in and to all
leases, usufructs, and contracts to rent presently existing or hereafter made,
whether written or verbal, or any letting of, or agreement for the use or
occupancy of, any part of the Property, as any such leases or agreements might
hereafter be amended, extended, renewed, or supplemented with the consent of
Lender as herein provided (collectively, the "Leases"), together with all
rights, powers, privileges, options and other benefits of Borrower under the
Leases, including, without limitation, the immediate and continuing right to
make claim for, receive, and collect (and to apply the same to the payment of
the Obligations) all rents (including all basic rent and additional rent),
income, revenues, issues, profits, moneys, security deposits, and damages
payable to or receivable by Borrower under the Leases or pursuant to any of the
provisions thereof (such rents, income, revenues, issues, profits, moneys,
security deposits or damages, collectively, the "Rents"), including all Rents
paid by a lessee, sublessee, tenant, subtenant, licensee, permittee, or other
obligee under any of the Leases, and the right of Borrower to enforce any
guaranty of the Lease at any time existing.
2. Absolute Nature of Assignment. Although it is the intention of
Borrower and Lender that this Assignment constitutes a present and absolute
assignment of the Leases and Rents to Lender, Lender grants to Borrower a
license to collect the Rents upon, but not prior to, their accrual under any
Leases, and to retain, use, and enjoy the Rents so collected unless and until
the occurrence of any Event of Default pursuant to, and as defined in, the Loan
Documents or until the violation of any term, condition, or agreement of this
Assignment, each of which shall constitute an "Event of Default" hereunder.
3. Lender's Collection Option. Upon and during the continuance of an
Event of Default, the license granted to Borrower herein to collect the Rents
will automatically terminate without notice, and Lender may, at its option,
without waiving such Event of Default, without notice and without regard to the
adequacy of the security for the Obligations, either in person or by agent or
servicer, with or without bringing any action or proceeding, or by a receiver
appointed by a court, enforce its interest in the Leases and Rents and take
possession of the Property and have, hold, manage, lease, and operate the
Property on such terms and for such period of time as Lender may deem proper,
and either with or without taking possession of the Property, in its own name,
demand, xxx for, or otherwise collect and receive all Rents that are currently
due or past due and unpaid. Borrower hereby authorizes and directs the lessees
or any persons obligated under all Leases, upon notice from Lender of the
occurrence of an Event of Default hereunder, to pay to Lender all Rents as the
same become due. Any lessee or other person making such payment to Lender will
be under no obligation to inquire into or determine the actual existence of any
Event of Default claimed by Lender. Any Rents received or collected by Lender by
virtue of this Assignment will be applied to the payment of the following in
such order and proportion as Lender in its sole discretion may determine, any
law, custom or use to the contrary notwithstanding:
(a) All reasonable and necessary expenses of managing and
securing the Property, including, without being limited thereto, the
salaries, fees, and wages of a managing agent and such other employees
or agents as Lender may deem necessary or desirable and all expenses of
operating and maintaining the Property, including, without being
limited thereto, all taxes, charges, claims, assessments, water
charges, sewer rents, and any other liens, and premiums for
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all insurance which Lender may deem necessary or desirable, and the
cost of all alterations, renovations, repairs, or replacements
permitted under the Leases, and all expenses incident to taking and
retaining possession of the Property; and
(b) the Obligations, together with all costs and reasonable
attorneys' fees.
In addition to the rights which Lender may have herein, upon the occurrence and
during the continuation of an Event of Default, Lender, at its option, may
either require Borrower to pay monthly in advance to Lender or the designee of
Lender, or any receiver appointed to collect the Rents, the fair and reasonable
rental value for the use and occupation of such part of the Property as may be
in possession of Borrower or may require Borrower to vacate and surrender
possession of the Property to Lender or to such receiver and, in default
thereof, Borrower may be evicted by summary proceedings or otherwise. For
purposes of this paragraph, Borrower grants to Lender and the designee of Lender
its irrevocable power of attorney, coupled with an interest, to take any and all
of the aforementioned actions and any or all other actions designated by Lender
for the proper management and preservation of the Property, which power of
attorney Lender agrees not to exercise unless and until the occurrence and
during the continuation of an Event of Default. The exercise by Lender of the
option granted it in this paragraph and the collection of the Rents and the
application thereof as herein provided shall not be considered a waiver of any
default by Borrower under the Loan Agreement, the Note, the Security Instrument,
the Leases, this Assignment, or any of the other Loan Documents.
4. Covenants. Borrower agrees to duly operate and maintain the Property
and perform all requisites on its part to keep any and all Leases in full force
and effect. Borrower will not assign the Leases or the Rents, or any part
thereof, to any other person, nor collect Rents under any Leases for a period
further in advance than one (1) month without the written consent of Lender, nor
do any other act whereby this Assignment may, in the opinion of Lender, be
impaired in value or quality. Borrower represents that it has not, and agrees
that it will not, enter into any fictitious lease or any lease for the purpose
of avoiding creditors, and any attempt to do so will be void. Borrower agrees
that, except as permitted by the Loan Agreement, Borrower shall not declare a
default or exercise any claims, rights, or remedies under the Leases, or
terminate, modify, amend, waive, or accept a surrender of, or offer or agree to
any termination, modification, consent, amendment, waiver or surrender of, or
give or withhold any consent with respect to, exercise any right or option or
take any other action required or contemplated by, the Leases or any term or
provision thereof.
5. Representations and Warranties.
Borrower represents and warrants to Lender that, as of the date hereof,
(i) there are no Leases in effect with respect to the Property, (ii) Borrower
has full power and authority to execute and deliver this Assignment, and (iii)
Borrower has not executed any other assignment of the subject matter of this
Assignment.
6. Indemnification. Borrower hereby agrees to indemnify Lender for, and
to save it harmless from, any and all liability, loss, or damage that Lender
might incur under any Leases or by virtue of this Assignment as a result of any
act, or failure to act, prior to Lender becoming a mortgagee in possession and
prior to foreclosure, and from any and all claims and demands whatsoever that
might be asserted against Lender thereunder or hereunder. Without limiting the
generality of the foregoing, Borrower covenants that this Assignment will not
operate to place responsibility for the control, care, management, or repair of
the Property upon Lender,
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nor the carrying out of any of the terms and conditions of any Lease, nor will
this Assignment operate to make Lender responsible or liable for any waste
committed on the Property by the tenants or any other party, or for any
negligence in the management, upkeep, repair, or control of the Property
resulting in loss or injury or death to any tenant, licensee, invitee, employee,
stranger, or other person.
7. Duration. This Assignment will remain in full force and effect so
long as any of the Obligations remain unpaid.
8. Document Protocols. This Assignment is governed by the Document
Protocols set forth in the Loan Agreement, which are specifically incorporated
herein as if fully set forth herein.
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IN WITNESS WHEREOF, Borrower has executed this Assignment, or has
caused this Assignment to be executed by its duly authorized representative, on
the day and year first above written, with the intention that this Assignment is
to take effect as an instrument under seal.
Signed, sealed, and delivered XXXXXXX PROPERTIES RESIDENTIAL, L.P.
in the presence of: a Georgia limited partnership
By: Xxxxxxx Realty Investors, Inc., a Georgia
----------------------------- corporation, its General Partner
Unofficial Witness
Name:
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------- ------------------------
Notary Public Name: Xxxxxxx X. Xxxxxxx
Name: Title: Chief Financial Officer
------------------------
Commission expiry:
Attest:
[Affix notarial seal] Name:
Title:
[Affix seal]
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