1
THIS INSTRUMENT PREPARED BY EXHIBIT 10(k)(7)(b)
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
2
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 and as defined in that certain Second Amended and Restated
Revolving Credit Loan Agreement dated as of December 30, 1998 (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 trustor under that certain Deed of Trust,
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 real
property records of Bexar County, Texas (the "Deed of Trust"); securing the
following Substitution Revolving Promissory Notes and Revolving Promissory
Notes: (i) 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 Bexar County, Texas, as more
particularly described on attached Exhibit A (the "Premises").
1
3
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 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
an Event of Default occurs under the Notes, the Loan Agreement, the Deed of
Trust 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 an Event of 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 an Event of 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
2
4
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 of
Trust upon receipt from the Assignee of written notice to the effect that
Assignee is then the holder of the Notes and the Deed of Trust and that an
Event of 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 willful 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 willful 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 willful 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 of Trust or this Assignment, the
lessee thereunder will, upon request of any person succeeding to the interest
of Assignor as a result of such enforcement,
3
5
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 of Trust, and to all renewals,
modifications, amendments, consolidations, replacements, refinancings and
extensions of the Deed of Trust, 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 of Trust, acceptance of a deed in lieu of foreclosure or exercise of any
other remedy provided in the Deed of Trust, or pursuant to the laws of the
State of Texas. 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
of Trust 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 of Trust, 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
4
6
conditions of the Notes, the Loan Agreement, or the Deed of Trust. 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 of
Trust 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, the Loan Agreement, or the Deed of
Trust.
9. Assignee may take or release other security for the payment
of the indebtedness under the Notes and the Deed of Trust, 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 of Trust 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 of Trust
and any cancellation, satisfaction or release of the Deed of Trust 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 of Trust,
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 THE ASSIGNMENT OR THE DEALINGS OR THE RELATIONSHIP
5
7
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, VOLUNTARILY AND INTENTIONALLY, AND CONSTITUTE A
MATERIAL INDUCEMENT FOR THE LENDERS TO MAKE THE LOAN TO ASSIGNOR, AND SHALL BE
SUBJECT TO NO EXCEPTIONS.
6
8
IN WITNESS WHEREOF, Assignor has executed this Assignment under seal
the day and year first above written.
ASSIGNOR:
XXXXX EQUITY, INC.,
a Florida corporation
By: /s/ G. Xxxxx Xxxxxxx
---------------------------------
Name: G. Xxxxx Xxxxxxx
-------------------------------
Title: Treasurer
------------------------------
STATE OF Georgia ss.
ss.
COUNTY OF Camden ss.
This instrument was acknowledged before me on the 30th day of
December, 1998, by G. Xxxxx Xxxxxxx, the Treasurer of XXXXX EQUITY, INC., a
Florida corporation, on behalf of said corporation.
/s/ Xxx Xxxxx
------------------------------------
Notary Public
My commission expires: Feb. 1, 1999
Notary Public, Camden County, Georgia
7
9
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
8