Exhibit 10(a)(4)(B)
PREPARED BY AND
AFTER RECORDING RETURN TO:
Xxxxx X. Xxxxxx, Esq.
Xxxxxxx & Xxxx, LLP
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000-0000
ASSIGNMENT OF LEASES AND RENTS
(NORTH CAROLINA)
THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") is made and
entered into as of this 28th day of December, 2001, by and between XXXXX EQUITY,
INC., a Florida corporation, having a mailing address of 000 Xxxxx Xxxx, Xxxxx
000, Xxxx Xxxxx, Xxxxxxx 00000 ("Assignor"), and FLEET NATIONAL BANK, a national
banking association ("Fleet"), having a mailing address of 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attn: Structured Real Estate, as Agent for itself
and each other lender (collectively, the "Lenders") which is or may hereafter
become a party to that certain Revolving Credit Loan Agreement, dated as of
December 28, 2001, by and among Assignor, Fleet, as Agent and Lenders (as the
same may be varied, amended, restated, renewed, consolidated, extended or
otherwise supplemented from time to time, the "Credit Agreement") (Fleet, in its
capacity as Agent, is hereinafter referred to as "Assignee").
W I T N E S S E T H:
THAT to secure the Secured Obligations as defined herein, Assignor does
hereby grant, transfer and assign to Assignee, its successors,
successors-in-title and assigns, all of Assignor's right, title and interest in,
to and under any and all leases, tenancies, agreements or licenses, written or
oral, now existing or hereafter entered into by Assignor as "landlord", "lessor"
or "licensor", for the use or occupancy of all or any portion of the property
(hereinafter referred to as the "Property") particularly described in Exhibit A
attached hereto and by this reference made a part hereof, including any and all
extensions, renewals and modifications thereof and guaranties of the performance
or obligations of any tenants, lessees or licensees thereunder (such leases,
tenancies, agreements and licenses are hereinafter referred to collectively as
the "Leases," and such tenants, lessees and licensees are hereinafter referred
to collectively as "Tenants" or individually as a "Tenant" as the context
requires), which Leases include those certain leases of the Property more
particularly described on Schedule 6.20 of the Credit Agreement, together with
all of Assignor's right, title and interest in and to all rents, issues and
profits from the Leases and from the Property. This Assignment constitutes a
present and absolute assignment of leases and rents, subject only to Assignor's
rights under Paragraph 1.03(a) hereof.
TO HAVE AND TO HOLD unto Assignee, its successors and assigns forever,
subject to and upon the terms and conditions set forth herein.
This Assignment is made to secure the payment and performance of the
following described indebtedness and obligations (hereinafter collectively
referred to as the "Secured Obligations"):
(a) The debt evidenced by (i) those certain Revolving Credit
Notes made by Assignor in the aggregate principal amount of One Hundred
Twenty-Five Million and No/100 Dollars ($125,000,000), and that certain
Swingline Note made by Assignor in the principal amount of Two Million Five
Hundred Thousand and No/100 Dollars ($2,500,000), each of which has been issued
pursuant to the Credit Agreement and each of which is due and payable in full on
or before December 27, 2004 and (ii) each other note as may be issued under the
Credit Agreement, each as originally executed, or if varied, extended,
supplemented, consolidated, amended, replaced, renewed, modified or restated
from time to time as so varied, extended, supplemented, consolidated, amended,
replaced, renewed, modified or restated (collectively, the "Note").
(b) The payment, performance and discharge of each and every
obligation, covenant and agreement of Assignor contained herein, in the Credit
Agreement, and in the other Loan Documents (as defined in the Credit Agreement).
(c) Any and all additional advances made by any Lender to
protect or preserve the Property or the lien and security title hereof in and to
the Property, or for taxes, assessments or insurance premiums as hereinafter
provided (whether or not Assignor remains the owner of the Property at the time
of such advances).
(d) Any and all other indebtedness now or hereafter owing by
Assignor to any Lender pursuant to the terms of the Credit Agreement, whether
now existing or hereafter arising or incurred, however evidenced or incurred,
whether express or implied, direct or indirect, absolute or contingent, due or
to become due, including, without limitation, all principal, interest, fees,
expenses, yield maintenance amounts and indemnification amounts, and all
renewals, modifications, consolidations, replacements and extensions thereof.
(e) All reasonable out-of-pocket costs and expenses incurred
by the Assignee in connection with the enforcement and collection of the Secured
Obligations, including, without limitation, all attorneys' fees and
disbursements, and all other such costs and expenses described in and incurred
pursuant to the Note, the Credit Agreement, this Instrument, and the other Loan
Documents (as defined in the Credit Agreement) (collectively, the "Enforcement
Costs").
As further security for the Secured Obligations and the full and prompt
payment and performance of any and all obligations of Assignor to Assignee and
the Lenders under the Loan Documents, Assignor hereby assigns to Assignee any
awards or payments which may be made in of Assignor's interest in any of the
Leases in any bankruptcy, insolvency or reorganization proceedings in any state
or federal court. Assignor hereby appoints Assignee as its attorney-in-fact,
effective during the continuance of an Event of Default, to appear in any such
proceeding and/or to collect any such award or payment.
ARTICLE I
WARRANTIES AND COVENANTS
1.01 Representations and warranties of Assignor. Assignor hereby
represents and warrants as follows.
(a) Assignor is the sole and absolute owner of the entire landlord's or
lessor's interest in the Leases and such rents, issues and profits.
(b) Assignor has made no prior assignment of any of the Leases or with
respect to any of such rents, issues or profits which remains in
effect.
(c) Assignor has neither done any act nor omitted to do any act which
might prevent Assignee from, or materially limit Assignee in, acting
under any of the provisions of this Assignment.
(d) Neither the execution and delivery of this Assignment or any of the
Leases, the performance of each and every covenant of Assignor under
this Assignment and the Leases, conflicts with, or constitutes a
material breach or default under, any agreement, indenture or other
instrument to which Assignor is a party, or any law, ordinance,
administrative regulation or court decree which is applicable to
Assignor.
(e) No action has been brought or, so far as is known to Assignor, is
threatened, which would interfere in any material way with the right of
Assignor to execute this Assignment and perform all of Assignor's
obligations contained in this Assignment and in the Leases.
1.02 Covenants of Assignor. Assignor hereby covenants and agrees
as follows.
(a) Assignor shall fulfill, perform and observe each and every material
term, condition and covenant of landlord or lessor contained in each of
the Leases; and shall take reasonable actions to enforce the
performance and observance of each and every material term, condition
and covenant of each of the Leases to be performed or observed by the
Tenant thereunder.
(b) Assignor shall not, without the prior written consent of Assignee,
(i) permit the prepayment of any rents under any of the Leases for more
than one (1) month prior to the accrual thereof; or (ii) assign its
interest in, to or under any of the Leases or the rents, issues and
profits from any of the Leases or from the Property to any person or
entity other than Assignee.
(c) The Assignee shall have the right, and the Assignor hereby
authorizes the Assignee, during the continuance of an Event of Default,
to communicate directly with any of the tenants or guarantors for any
purpose contemplated by this Assignment or any of the Security
Documents. In the event that any of the Leases is terminated, the
Assignor will take or cause to be taken all reasonable steps within the
power of the Assignor to market and lease the untenanted rentable area
of the Buildings to such tenants and upon such terms and conditions as
may be reasonably determined by Assignor.
(d) Assignor shall deliver to Assignee correct and complete copies of
all of the Leases and all amendments, exhibits, addenda and schedules
thereto and all guaranties thereof, promptly upon the Assignee's
request therefor.
(e) Assignor shall take no action which will cause or permit the estate
of the Tenant under any of the Leases to merge with the interest of
Assignor in the Property or any portion thereof.
(f) Subject to the provisions of Section 1.03(a) hereof, Assignor does
hereby authorize and empower Assignee to collect all rents, issues and
profits arising or accruing under the Leases or from the Property as
they become due, whether or not the Assignee shall have made entry or
become a mortgagee in possession pursuant to the Security Deed, and
does hereby irrevocably authorize and direct, each and every present
and future Tenant of the whole or any part of the Property, upon
receipt of written notice from Assignee, to pay all rents, issues and
profits thereafter arising or accruing under the Leases or from the
Property to Assignee and to continue to do so until otherwise notified
by Assignee, and Assignor agrees that each and every Tenant shall have
the right to rely upon such notice by Assignee without any obligation
or right to inquire as to whether any Event of Default exists and
notwithstanding any notice or claim of Assignor to the contrary, and
that Assignor shall have no right or claim against any Tenant for any
rents paid by such Tenant to Assignee following receipt of such notice.
Assignee shall not give any such notice to the Tenants of the Property
prior other than during the continuance of an Event of Default..
(g) Assignor does hereby agree that during the continuance of an Event
of Default, Lender shall have the right to the appointment of a
receiver to collect all rents, issues and profits and to carry out any
other actions which Lender has the right to carry out under the terms
of this Assignment.
1.03 Covenants of Assignee. Assignee hereby covenants and agrees
with Assignor as follows:
(a) Although this Assignment constitutes a present, current and
absolute assignment of all Leases and all rents, issues and profits
from the Property, so long as no Event of Default (as herein defined)
has occurred and is continuing, Assignee shall not demand that such
rents, issues and profits be paid directly to Assignee, and Assignor
shall have the right to collect, but not more than one (1) month prior
to accrual, all such rents, issues and profits from the Property
(including, but not by way of limitation, all rents payable under the
Leases), provided, however, that Assignor shall collect and receive all
such rents, issues and profits from the Property as trustee for the
benefit of Assignee, and shall apply such rents, issues and profits so
collected to the Secured Obligations, to the extent then due, with the
balance, so long as no Event of Default has occurred and is continuing,
to the account of Assignor.
(b) Upon termination of the Credit Agreement and the payment in full of
the Secured Obligations, this Assignment shall be terminated and
released of record by Assignee and shall thereupon be of no further
force or effect.
ARTICLE II
DEFAULT
2.01 Event of Default. The term "Event of Default" shall mean (a) any
Event of Default under the Credit Agreement, as defined thereunder, or (b) any
Event of Default under the Security Deed, as defined thereunder, or (c) any
default in the performance of the obligations of Assignor hereunder which
default continues for a period of thirty (30) days after notice thereof from
Assignee, or (d) any representation or warranty of Assignor in this Assignment
shall prove to have been false or incorrect in any material respect upon the
date when made and shall continue to be false or incorrect on the date Assignee
takes action based on the default relating to such representation or warranty.
If an Event of Default shall occur and is continuing the Assignee may exercise
any and all remedies provided in Paragraph 2.02 of this Assignment, under the
Security Deed, under the Notes, and under any and all other instruments and
documents providing security for the Secured Obligations, or any other remedies
available under applicable law or any one or more of such remedies.
2.02 Remedies. Upon the occurrence of any Event of Default, Assignee
may at its option, with or without notice or demand of any kind (except as may
be provided herein or in any of the Loan Documents), and without waiving such
Event of Default (provided, however, the Assignor acknowledges that as to
certain Events of Default, as set forth in the Credit Agreement, the Secured
Obligations automatically shall become and be immediately due and payable,
without any declaration or other act on the part of Assignee or any Lender),
exercise any or all of the following rights and remedies:
(a) Either with or without entry or taking possession of the Property,
give or require Assignor to give notice to any or all Tenants under the
Leases authorizing and directing such Tenants to pay all rents, issues
and profits and any other sums due under their Leases directly to
Assignee, whether or not the Assignee shall have made entry or become a
mortgagee in possession pursuant to the Security Deed, and collect and
receive (subject to the provisions of Section 1.03 hereof) all rents,
issues and profits and other sums due under the Leases with respect to
which such notice is given.
(b) Either with or without entry or taking possession of the Property,
perform any and all obligations of Assignor under any or all of the
Leases or this Assignment and exercise any and all rights of Assignor
herein or therein as fully as Assignor itself could do, including,
without limiting the generality of the foregoing, enforcing, modifying,
extending or terminating any or all of the Leases, collecting,
modifying, compromising, waiving or increasing any or all of the rents
payable thereunder, and obtaining new Tenants and entering into new
Leases on the Property on any terms and conditions deemed reasonable by
Assignee, and, to the extent Assignee shall incur any costs in
connection with the performance of any such obligations of Assignor,
including costs of litigation, then all such reasonable costs shall
become a part of the Secured Obligations, shall bear interest from the
incurring thereof at the interest rate for overdue amounts specified in
the Credit Agreement, and shall be due and payable within ten (10) days
after demand.
(c) Either with or without entry or taking possession of the Property,
in Assignor's or Assignee's name, institute any legal or equitable
action which Assignee deems reasonably necessary to collect and receive
any or all of the rents, issues and profits assigned herein or to evict
or remove any Tenants.
(d) Enter upon, take possession of, and use and operate all or any
portion of the Property which Assignee in its sole discretion deems
desirable to effectuate any or all of the foregoing remedies (subject
to Section 1.03 hereof), with full power to make alterations,
renovations, repairs or replacements thereto.
Assignee shall have full right to exercise any or all of the foregoing remedies
rights and without regard to the adequacy of security for any or all of the
Secured Obligations, and with or without the commencement of any legal or
equitable action or the appointment of any receiver or trustee.
2.03 Application of Rents. All rents, issues and profits and any other
sums due under the Leases and with respect to the Property which are collected
by Assignee shall be applied by Assignee in such order as Assignee in its sole
discretion may elect against: (i) all reasonable costs and expenses, including
reasonable attorneys' fees, incurred in connection with the operation of the
Property, the performance of Assignor's obligations under the Leases or the
collection of the rents thereunder; (ii) all reasonable costs and expenses,
including reasonable attorneys' fees, incurred in the collection of any of all
of the Secured Obligations, including all reasonable costs, expenses and
reasonable attorneys' fees incurred in seeking to realize on or to protect or
preserve Assignee's interest in any other collateral securing any or all of the
Secured Obligations; and (iii) any or all unpaid principal of and interest on
the Secured Obligations.
2.04 No Liability of Assignee. Assignee shall not be obligated to
perform or discharge, nor does Assignee hereby undertake to perform or
discharge, any obligation, duty or liability of Assignor under any of the Leases
or under or by reason of this Assignment, except those arising from and after
Assignee takes possession of the Property after an Event of Default. Prior to
Assignee's taking possession of the Property after an Event of Default, this
Assignment shall not operate to place upon Assignee responsibility for the
control, care, management or repair of the Property, nor for the carrying out of
any of the terms and conditions of any of the Leases, nor shall it operate to
make Assignee responsible or liable for any waste committed on the Property, for
any dangerous or defective condition of the Property, or for any negligence in
the management, upkeep, repair or control of the Property resulting in loss or
injury or death to any person. Assignee shall not be liable for any loss
sustained by Assignor resulting from Assignee's failure to let the Property
after taking possession of the Property after an Event of Default, unless such
loss is caused by the willful misconduct or gross negligence of Assignee.
2.05 Indemnification. Assignor shall and does hereby agree to indemnify
and to hold Assignee and the Lenders harmless of and from any and all claims,
demands, liability, loss or damage (including all costs, expenses, and
reasonable attorneys' fees incurred in the defense thereof) asserted against,
imposed on or incurred by Assignee or any Lender in connection with or as a
result of this Assignment or the exercise of any rights or remedies under this
Assignment or under any of the Leases or by reason of any alleged obligations or
undertakings of Assignee or any Lender to perform or discharge any of the terms,
covenants or agreements contained in any of the Leases provided that this
indemnity shall not protect Assignee or any Lender with respect to matters
caused by its own willful misconduct or gross negligence. Should Assignee or any
Lender incur any such liability, loss or damage, or in the defense of any such
claims or demands, for which it is to be indemnified by Assignor as aforesaid,
the amount thereof shall be added to the Secured Obligations, shall bear
interest at the rate for overdue amounts specified in the Credit Agreement from
the date incurred until paid, shall be secured by this Assignment, the Security
Deed and the other Loan Documents, and shall be payable immediately within ten
(10) days after demand.
ARTICLE III
DEFINITIONS
The following terms as used herein shall have the following meanings:
"Assignment" shall mean this Assignment of Leases and Rents between
Assignor and Assignee.
"Assignor" shall have the meaning assigned to that term in the preamble
hereto.
"Default" shall mean any event which, with the giving of notice or the
lapse of time, or both, would become an Event of Default.
"Event of Default" shall have the meaning assigned to that term in
Section 2.01.
"Lenders" shall mean the lending institutions which are from time to
time Lenders as defined in the Credit Agreement
"Property" shall mean the property which is more particularly described
in Exhibit A attached hereto.
"Security Deed" shall mean the Deed of Trust and Security Agreement
from Assignor to Assignee pursuant to which Assignor has conveyed the Property
as security for the Obligations.
"Tenants" shall mean those tenants, lessees and licensees occupying
space pursuant to the Leases on the Property.
ARTICLE IV
GENERAL PROVISIONS
4.01 Successors and Assigns. This Assignment shall inure to the benefit
of and be binding upon Assignor and Assignee and their respective heirs,
executors, legal representatives, successors and assigns (but in the case of
assigns of Assignor, only if and to the extent that Assignee has consented in
writing to Assignor's assignment of its rights or obligations hereunder to such
assigns). Whenever a reference is made in this Assignment to "Assignor",
"Assignee" or "Lender", such reference shall be deemed to include a reference to
the successors and assigns of such party.
4.02 Assignee's Rights of Assignment; Rights of Assignees. Assignee may
assign to any subsequent holder of the Security Deed, or to any person acquiring
title to the Property, all of Assignee's right, title and interest in any of the
Leases and rents, issues and profits from the Property. No such assignee shall
have any liability for any obligation which accrued under any of the Leases
prior to the assignment to such assignee nor shall such assignee have any
obligation to account to Assignor for any rental payments which accrued prior to
such assignment.
4.03 Terminology. All personal pronouns used in this Assignment,
whether used in the masculine, feminine or neuter gender, shall include all
other genders, and the singular shall include the plural, and vice versa. Titles
of Articles are for convenience only and neither limit nor amplify the
provisions of this Assignment.
4.04 Severability. If any provision of this Assignment or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Assignment and the
application of such provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
4.05 Applicable Law. This Assignment shall be interpreted, construed
and enforced according to the laws of the State in which the Property is
located.
4.06 No Third Party Beneficiaries. This Assignment is made solely for
the benefit of Assignee and its assigns. No Tenant under any of the Leases nor
any other person shall have standing to bring any action against Assignee as the
result of this Assignment, or to assume that Assignee will exercise any remedies
provided herein, and no person other than Assignee and the Lenders shall under
any circumstances be deemed to be a beneficiary of any provision of this
Assignment.
4.07 No Oral Modifications. Neither this Assignment nor any provisions
hereof may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
4.08 Cumulative Remedies. The remedies herein provided shall be in
addition to and not in substitution for the rights and remedies vested in
Assignee in any of the Loan Documents or in law or equity, all of which rights
and remedies are specifically reserved by Assignee. The remedies herein provided
or otherwise available to Assignee shall be cumulative and may be exercised
concurrently. The failure to exercise any of the remedies herein provided shall
not constitute a waiver thereof, nor shall use of any of the remedies herein
provided prevent the subsequent or concurrent resort to any other remedy or
remedies. It is intended that this clause shall be broadly construed so that all
remedies herein provided or otherwise available to Assignee shall continue and
be each and all available to Assignee until the Secured Obligations shall have
been paid in full.
4.09 Counterparts. This Assignment may be executed in any number of
counterparts all of which taken together shall constitute one and the same
instrument, and any of the parties or signatories hereto may execute this
Assignment by signing any such counterpart.
4.10 Further Assurance. At any time and from time to time, upon written
request by Assignee, Assignor will make, execute and deliver, or cause to be
made, executed and delivered, to Assignee and, where appropriate, cause to be
recorded and/or filed and from time to time thereafter to be re-recorded and/or
refiled at such time and in such offices and places as shall be deemed
reasonably necessary by Assignee, any and all such other and further
assignments, deeds to secure debt, mortgages, deeds of trust, security
agreements, financing statements, continuation statements, instruments of
further assurance, certificates and other documents as may, in the opinion of
Assignee, be reasonably necessary in order to effectuate, complete, or perfect,
or to continue and preserve (a) the obligations of Assignor under this
Assignment and (b) the security interest created by this Assignment as a first
and prior security interest upon the Leases and the rents, issues and profits
from the Property. Upon any failure by Assignor so to do, Assignee may make,
execute, record, file, re-record and/or refile any and all such assignments,
deeds to secure debt, mortgages, deeds of trust, security agreements,
instruments, certificates, and documents for and in the name of Assignor, and
Assignor hereby irrevocably appoints Assignee the agent and attorney-in-fact of
Assignor so to do.
4.11 Notices. Any and all notices, elections, demands or requests
provided for or permitted to be given pursuant to this Assignment shall be given
or served as provided in the Credit Agreement, and the address of the Assignor
shall be the same as the address of the Borrower as applicable from time to time
under such notice provisions of the Credit Agreement.
4.13 Modifications, Etc. Assignor hereby consents and agrees that
Assignee may at any time and from time to time, without notice to or further
consent from Assignor, either with or without consideration, surrender any
property or other security of any kind or nature whatsoever held by it or by any
person, firm or corporation on its behalf or for its account, securing the
Secured Obligations; substitute for any collateral so held by it, other
collateral of like kind, or of any kind; agree to modification of the terms of
the Notes or the Loan Documents; extend or renew the Notes or any of the Loan
Documents for any period; grant releases, compromises and indulgences with
respect to the Notes or the Loan Documents to any persons or entities now or
hereafter liable thereunder or hereunder; release any guarantor or endorser of
the Notes, the Security Deed, the Credit Agreement, or any other Loan Documents;
or take or fail to take any action of any type whatsoever; and no such action
which Assignee shall take or fail to take in connection with the Loan Documents,
or any of them, or any security for the payment of the Secured Obligations or
for the performance of any obligations or undertakings of Assignor, nor any
course of dealing with Assignor or any other person, shall release Assignor's
obligations hereunder, affect this Assignment in any way or afford Assignor any
recourse against Assignee. The provisions of this Assignment shall extend and be
applicable to all renewals, amendments, extensions, consolidations and
modifications of the Loan Documents and the Leases, and any and all references
herein to the Loan Documents or the Leases shall be deemed to include any such
renewals, amendments, extensions, consolidations or modifications thereof.
[SIGNATURES CONTINUED ON NEXT PAGE]
IN WITNESS WHEREOF, Assignor has executed this Assignment under seal,
as of the day and year first above written.
XXXXX EQUITY, INC., a Florida corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxx
Printed Name: Xxxxxxxxxxx X. Xxxxxx
Printed Title: Senior Vice President
STATE OF GA
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COUNTY OF De Xxxx
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I, Xxxxxx X. Xxxxxxx , a Notary Public of the county and state
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aforesaid, do certify that Xxxxx X. Xxxxxx personally came before me this day
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and acknowledged that he/she is Sr. Vice President of XXXXX EQUITY, INC., a
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Florida corporation, and that he/she, as SVP, being authorized to do so,
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executed the foregoing on behalf of the corporation. WITNESS my hand and
notarial seal or stamp, this the 27 day of Dec.
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/s/ Xxxxxx X. Xxxxxxx
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Notary Public
My commission expires:
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