Common use of Assignment of Construction Contracts Clause in Contracts

Assignment of Construction Contracts. As additional security for the payment of the Debt and the performance of Borrower’s Obligations, Borrower hereby transfers and assigns to Lender for the benefit of Lender, all of Borrower’s rights and interest, but not its obligations, in, under and to all contracts, subcontracts and agreements, written or oral, between Borrower and any other party, and between parties other than Borrower, in any way relating to the development of the Property and/or the construction of improvements on the Property, or the supplying of material (specially fabricated or otherwise), labor, supplies, or other services therefor (collectively, the “Construction Contracts”) upon the following terms and conditions: (a) Borrower represents and warrants to Lender that the copy of each Construction Contract that Borrower has furnished or will furnish to Lender is or will be a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s interest therein is not subject to any claim, setoff or encumbrance; (b) neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder; and Borrower hereby agrees to perform all of its obligations under each Construction Contract. Borrower hereby agrees to indemnify and hold Lender harmless against and from any loss, cost, liability or expense (including, but not limited to, consultants’ fees and expenses and attorneys’ fees and expenses) incurred in connection with Borrower’s failure to perform any such Construction Contract or any action taken by Lender, except for matters arising as a result of the gross negligence or willful misconduct by Lender; (c) upon the occurrence of an Event of Default, and during the continuance thereof, Lender shall have the right at any time (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. Lender shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, and Borrower agrees to indemnify and hold Lender harmless against and from any loss, cost, liability or expense (including but not limited to reasonable attorneys’ fees) incurred in connection with any such action, except for matters arising as a result of the gross negligence or willful misconduct of Lender; (d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact, in Borrower’s or Lender’s name, to enforce all rights of Borrower under each Construction Contract; provided, however, that Lender agrees not to exercise such appointment until the occurrence of an Event of Default, and during the continuance thereof. Such appointment is coupled with an interest and is therefore irrevocable; (e) prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender; (f) this assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Liens against the Property, any receiver in possession of the Property or any portion thereof and any entity affiliated with Lender which assumes Lender’s rights and obligations under this Agreement; and (g) Borrower, in its capacity as general contractor for the Projects, hereby consent to the foregoing assignment and the terms of this Section 10.1.

Assignment of Construction Contracts. As additional security for the payment of the Debt and the performance of Borrower’s Obligations, Borrower hereby transfers and assigns to Lender for the benefit of Lender, all of Borrower’s rights and interest, but not its obligations, in, under and to all contracts, subcontracts and agreements, written or oral, between Borrower and any other party, and between parties other than Borrower, in any way relating to the development of the Property and/or the construction of improvements on the Property, or the supplying of material (specially fabricated or otherwise), labor, supplies, or other services therefor (collectively, the “Construction Contracts”) upon the following terms and conditions: (a) Borrower represents and warrants to Lender Provided that the copy no Noticed Default or Event of each Construction Contract that Borrower has furnished or will furnish to Lender is or will be a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s interest therein is not subject to any claim, setoff or encumbrance; (b) neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations Default exists under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder; and Borrower hereby agrees to perform all of its obligations under each Construction Contract. Borrower hereby agrees to indemnify and hold Lender harmless against and from any loss, cost, liability Building Loan Document or expense (including, but not limited to, consultants’ fees and expenses and attorneys’ fees and expenses) incurred in connection with Borrower’s failure to perform any such Construction Contract or any action taken by Lender, except for matters arising as a result of the gross negligence or willful misconduct by Lender; (c) upon the occurrence of an Event of Default, and during the continuance thereof, Lender shall have the right at any time (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. Lender shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, and Borrower agrees to indemnify and hold Lender harmless against and from any loss, cost, liability or expense (including but not limited to reasonable attorneys’ fees) incurred in connection with any such action, except for matters arising as a result of the gross negligence or willful misconduct of Lender; (d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact, in Borrower’s or Lender’s name, to enforce all rights of Borrower under each Construction Contract; provided, however, that Lender agrees not to exercise such appointment until the occurrence of an Event of Default, and during the continuance thereof. Such appointment is coupled with an interest and is therefore irrevocable; (e) prior to the occurrence of an Event of DefaultProject Loan Document, Borrower shall have the right to exercise assign its rights as owner under each interest in certain contracts approved by Agent related to the design and construction of the Project (such approved contracts, the “Assigned Construction ContractDocuments”) to the Board of Managers of the New York Times Condominium, provided that Borrower free and clear of any lien of Agent thereon, upon satisfaction of the following conditions: (1) Substantial Completion shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lenderhave occurred; (f2) this assignment Agent shall inure have received not less than ten (10) Business Days’ notice of such assignments; (3) Borrower shall have paid all reasonable, third-party out of pocket costs and expenses incurred by Agent in connection with such assignments (including reasonable attorneys’ fees and disbursements); (4) Borrower shall have received all consents or approvals from all third parties required in connection with such assignments; (5) Borrower shall have delivered to Agent all of the documents to be executed in connection with such assignments, all of which shall be in form and substance reasonably satisfactory to Agent; (6) Agent shall be satisfied that the Board of Managers of the New York Times Condominium has the right to enforce such Assigned Construction Documents for the benefit of Lender and its successors and assigns, any purchaser upon foreclosure the owners of the Liens Units and that upon the occurrence of an event giving rise to the right to enforce such rights, a unit owner may exercise remedies against such Board unless such Board either (A) enforces its rights under such Assigned Construction Documents or (B) remedies the Property, any receiver in possession of the Property or any portion thereof and any entity affiliated with Lender which assumes Lender’s underlying matter giving rise to such right to enforce such rights and obligations under this Agreementsuch Assigned Construction Documents; and (g7) BorrowerAgent shall have received such other documents or assurances as Agent may reasonably request in connection with the assignments. (b) Upon the fulfillment of the foregoing conditions, in its capacity as general contractor Agent shall deliver (i) one or more UCC-3 termination statements which shall amend the collateral description to previously filed UCC-1 financing statements to exclude the Assigned Construction Documents and (ii) a partial release of the Assignment of Contracts —Borrower providing for the Projects, hereby consent to release of the foregoing assignment and the terms of this Section 10.1Assigned Construction Documents.”

Assignment of Construction Contracts. As additional security for the payment of the Debt and the performance of Borrower’s Obligations, Borrower hereby transfers and assigns to Lender for the benefit of Lender, all of Borrower’s rights and interest, but not its obligations, in, under and to all contracts, subcontracts and agreements, written or oral, between Borrower and any other party, and between parties other than Borrower, in any way relating to the development of the Mortgaged Property and/or the construction of improvements Improvements on the Mortgaged Property, or the supplying of material (specially fabricated or otherwise), labor, supplies, or other services therefor therefor, including but not limited to the Amenities Center Construction Contract (collectively, the “Construction Contracts”) upon the following terms and conditions: (ai) Borrower represents and warrants to Lender that the copy of each Construction Contract that Borrower has furnished or will furnish to Lender is or will be a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s interest therein is not subject to any claim, setoff or encumbrance; (bii) neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder; and Borrower hereby agrees to perform all of its obligations under each Construction Contract. Borrower hereby agrees to indemnify and hold Lender harmless against and from any loss, cost, liability or expense (including, but not limited to, consultants’ fees and expenses and attorneys’ fees and expenses) incurred in connection with Borrower’s failure to perform any such Construction Contract or any action taken by Lender, except for matters arising as a result of the gross negligence or willful misconduct by Lender; (ciii) upon the occurrence of an Event of Default, and during the continuance thereof, Lender shall have the right at any time (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. Lender shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, and Borrower agrees to indemnify and hold Lender harmless against and from any loss, cost, liability or expense (including but not limited to reasonable attorneys’ fees) incurred in connection with any such action, except for matters arising as a result of the gross negligence or willful misconduct of Lender; (div) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact, in Borrower’s or Lender’s name, to enforce all rights of Borrower under each Construction Contract; provided, however, that Lender agrees not to exercise such appointment until the occurrence of an Event of Default, and during the continuance thereof. Such appointment is coupled with an interest and is therefore irrevocable; (ev) prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender;; and (fvi) this assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Liens against the Mortgaged Property, any receiver in possession of the Mortgaged Property or any portion thereof and any entity affiliated with Lender which assumes Lender’s rights and obligations under this Agreement; and (g) Borrower, in its capacity as general contractor for the Projects, hereby consent to the foregoing assignment and the terms of this Section 10.1.

Assignment of Construction Contracts. As additional security for the payment of the Debt and the performance of Borrower’s ObligationsLoan, Borrower Grantee hereby transfers and assigns to Lender for the benefit of Lender, City all of BorrowerGrantee’s rights and interest, but not its obligations, in, under under, and to all contracts, subcontracts and agreements, written or oral, between Borrower and any other party, and between parties other than Borrower, in any way relating to the development of the Property and/or the construction of improvements on the Property, or the supplying of material (specially fabricated or otherwise), labor, supplies, or other services therefor (collectively, the “Construction Contracts”) , upon the following terms and conditions: (a) Borrower Grantee represents and warrants to Lender that the copy of each any Construction Contract that Borrower it has furnished or will furnish to Lender City is or will be a true and complete copy thereof, including all amendments thereto, if any, thereof and that BorrowerGrantee’s interest therein is not subject to any claim, setoff setoff, or encumbrance;. (b) neither Neither this assignment nor any action by Lender City shall constitute an assumption by Lender City of any obligations obligation under any the Construction ContractContracts, and Borrower Grantee shall continue to be liable for all obligations of Borrower Grantee thereunder; and Borrower , Grantee hereby agrees agreeing to perform all of its obligations under each the Construction ContractContracts. Borrower hereby agrees to indemnify Grantee indemnifies and hold Lender holds City harmless against and from any loss, cost, liability liability, or expense (including, but not limited to, consultants’ fees and expenses and attorneys’ attorney’s fees and expenses) incurred in connection with Borrower’s resulting from any failure of Grantee to perform any such Construction Contract or any action taken by Lender, except for matters arising as a result of the gross negligence or willful misconduct by Lender;so perform. (c) upon the occurrence of an Event of Default, and during the continuance thereof, Lender City shall have the right at any time (but shall have no obligation) to take in its name or in the name of Borrower Grantee such action as Lender City may at any time determine to be necessary or advisable to cure any default under any the Construction Contract Contracts or this Agreement or to protect the rights of Borrower Grantee or Lender City thereunder. Lender City shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, and Borrower Grantee agrees to indemnify hold City free and hold Lender harmless against and from any loss, cost, liability or expense (including including, but not limited to reasonable attorneys’ feesto, attorney’s fees and expenses) incurred in connection with any such action, except for matters arising as a result of the gross negligence or willful misconduct of Lender;. (d) Borrower Grantee hereby irrevocably constitutes and appoints Lender City as BorrowerGrantee’s attorney-in-in- fact, in BorrowerGrantee’s name or Lenderin City’s name, to enforce all rights of Borrower Grantee under each the Construction Contract; provided, however, that Lender agrees not Contracts or the Loan Agreement. (e) Prior to exercise such appointment until the occurrence of an Event of Default, and during the continuance thereof. Such appointment is coupled with an interest and is therefore irrevocable; (e) prior to the occurrence of an Event of Default, Borrower Grantee shall have the right to exercise its rights as owner of the Property under each the Construction ContractContracts, provided that Borrower Grantee shall not cancel or amend any the Construction Contract Contracts or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender;City. (f) this This assignment shall inure to the benefit of Lender and City, its successors and assigns, including any purchaser upon foreclosure of the Liens against the Propertydeed of trust, any receiver in possession of the Property or any portion thereof Property, and any entity affiliated with Lender corporation formed by or on behalf of City which assumes LenderCity’s rights and obligations under this Agreement; and (g) Borrower, in its capacity as general contractor for the Projects, hereby consent to the foregoing assignment and the terms of this Section 10.1.

Assignment of Construction Contracts. As additional security for the payment of the Debt and the performance of Borrower’s ObligationsLoan, Borrower hereby transfers and assigns to Lender for the benefit of Lender, all of Borrower’s 's rights and interest, but not its obligations, in, under and to all contracts, subcontracts and agreements, written or oral, between Borrower and any other party, and between parties other than Borrower, in any way relating to the development of the Property and/or the construction of improvements on the Property, or the supplying of material (specially fabricated or otherwise), labor, supplies, or other services therefor (collectively, the “each Construction Contracts”) Contract upon the following terms and conditions: (a) Borrower represents and warrants to Lender that the copy of each Construction Contract that Borrower has furnished or it will furnish to Lender is or will be a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s 's interest therein is not subject to any claim, setoff or encumbrance;. (b) neither Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder; and , Borrower hereby agrees agreeing to perform all of its obligations under each Construction Contract. Borrower hereby agrees to indemnify and hold Lender harmless against and from any loss, cost, liability or expense (including, including but not limited to, consultants’ fees and expenses and reasonable attorneys’ fees and expenses' fees) incurred in connection with Borrower’s resulting from any failure of Borrower to perform any such Construction Contract or any action taken by Lender, except for matters arising as a result of the gross negligence or willful misconduct by Lender;so perform. (c) upon the occurrence of an Event of Default, and during the continuance thereof, Lender shall have the right at any time (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. Lender shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, and Borrower agrees to indemnify and hold Lender harmless against and from any loss, cost, liability or expense (including but not limited to reasonable attorneys’ ' fees) incurred in connection with any such action, except for matters arising as a result of the gross negligence or willful misconduct of Lender;. (d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s 's attorney-in-fact, in Borrower’s 's or Lender’s 's name, to enforce all rights of Borrower under each Construction Contract; provided, however, that Lender agrees not to exercise such appointment until the occurrence of an Event of Default, and during the continuance thereof. Such appointment is coupled with an interest and is therefore irrevocable;. (e) prior Prior to the occurrence of an Event of a Default, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender;. (f) this This assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Liens against the PropertyDeed of Trust, any receiver in possession of the Property or any portion thereof and any entity affiliated with corporation formed by or on behalf of Lender which assumes Lender’s 's rights and obligations under this Agreement; and (g) Borrower, in its capacity as general contractor for the Projects, hereby consent to the foregoing assignment and the terms of this Section 10.1.

Assignment of Construction Contracts. As additional security for the payment of the Debt Seller and the performance of Borrower’s Obligations, Borrower hereby transfers and assigns to Lender for the benefit of Lender, all of Borrower’s rights and interest, but not its obligations, in, under and to all contracts, subcontracts and agreements, written or oral, between Borrower and any other party, and between parties other than Borrower, in any way relating to the development of the Property and/or Purchaser acknowledge that Seller has entered into the construction of improvements contracts identified as “Construction Contracts” on the Property, or the supplying of material (specially fabricated or otherwise), labor, supplies, or other services therefor Exhibit C attached hereto (collectively, the “Construction Contracts” and, individually, a “Construction Contract”) upon ). If all the following terms and conditions: (a) Borrower represents and warrants to Lender that the copy of each work under any Construction Contract that Borrower has furnished or will furnish is completed and paid for prior to Lender is or will Closing, (i) Seller shall notify Purchaser of such completion, (ii) such Construction Contract shall not be a true and complete copy thereofassigned to Purchaser at Closing, including all amendments thereto, if any, and that Borrower’s interest therein is not subject (iii) Exhibit C shall be updated to any claim, setoff or encumbrance; (b) neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any delete such Construction Contract, and Borrower (iv) if the work under the Xxxxxxxxx Contract is completed prior to Closing, as a condition precedent to Purchaser’s obligation to complete Closing, Seller shall continue to be liable for all obligations provide Purchaser with copies of Borrower thereunder; and Borrower hereby agrees to perform all of its obligations unconditional lien waivers from the contractor under each Construction the Xxxxxxxxx Contract. Borrower hereby agrees to indemnify and hold Lender harmless against and from any lossIf, costhowever, liability or expense (including, but not limited to, consultants’ fees and expenses and attorneys’ fees and expenses) incurred in connection with Borrower’s failure to perform any such Construction Contract or any action taken by Lender, except for matters arising as a result of all the gross negligence or willful misconduct by Lender; (c) upon the occurrence of an Event of Default, and during the continuance thereof, Lender shall have the right at any time (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default work under any Construction Contract has not been completed at or prior to protect Closing (collectively, the rights “Outstanding Construction Contracts” and, individually, an “Outstanding Construction Contract”), subject to the conditions set forth below, and as a condition precedent to Purchaser’s obligation to complete the Closing (as to clauses (A) and (C) below), (A) such Outstanding Construction Contract shall be assigned to Purchaser at Closing, (B) Purchaser shall assume the obligations under such Outstanding Construction Contract pursuant to the General Conveyance, and (C) Purchaser shall be entitled to a credit against the Purchase Price in the amount of Borrower or Lender thereunder. Lender shall incur no liability if any action so taken by it or in its behalf shall prove the costs of the work remaining to be inadequate or invalid, paid to the contractor under such Outstanding Construction Contract as set forth in the contractor’s certificate provided in clause (x) below. As a condition to such assignment and Borrower agrees to indemnify assumption and hold Lender harmless against and from any loss, cost, liability or expense (including but not limited to reasonable attorneys’ fees) incurred in connection with any such action, except for matters arising as a result of condition precedent to Purchaser’s obligation to complete the gross negligence or willful misconduct of Lender; Closing: (dx) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact, in Borrower’s or Lender’s name, Seller shall deliver to enforce all rights of Borrower Purchaser a certificate executed by the contractor under each Outstanding Construction Contract; provided, however, that Lender agrees not Contract substantially in the form attached hereto as Exhibit O (with such changes to exercise such appointment until the occurrence of an Event of Default, form to which Seller and during the continuance thereof. Such appointment is coupled with an interest and is therefore irrevocable; Buyer may mutually agree (ein their reasonable discretion) prior to the occurrence expiration of an Event of Defaultthe Inspection Period) together with the Joinder attached to such certificate executed by Seller, Borrower and (y) Seller shall have deliver to Purchaser partial lien waiver(s) from the right to exercise its rights as owner contractor(s) under each Construction Contract, provided that Borrower shall not cancel or amend any such Outstanding Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender; (f) this assignment shall inure with respect to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure portion of the Liens against work under the Property, any receiver in possession Outstanding Construction Contract for which payment has been made to such contractor. Purchaser’s closing of the Property purchase provided for herein shall evidence Purchaser’s satisfaction with or any portion thereof and any entity affiliated with Lender which assumes Lenderwaiver of each of such conditions in this Section 10.8. Notwithstanding anything contained herein to the contrary, in no event shall Seller’s rights and obligations failure to satisfy the conditions set forth above in this Section 10.8 constitute a default by Seller under this Agreement; and (g) Borrower, in its capacity as general contractor for the Projects, hereby consent to the foregoing assignment and the terms of this Section 10.1.

Assignment of Construction Contracts. As additional security for the payment of the Debt and the performance of Borrower’s ObligationsLoan, Borrower hereby transfers and assigns to Lender for the benefit of Lender, all of Borrower’s rights and interest, but not its obligations, obligations in, under under, and to all contracts, subcontracts and agreements, written or oral, between Borrower and any other party, and between parties other than Borrower, in any way relating to the development of the Property and/or the construction of improvements on the Property, or the supplying of material (specially fabricated or otherwise), labor, supplies, or other services therefor (collectively, the “each Construction Contracts”) Contract upon the following terms and conditions: (a) Borrower represents and warrants to Lender that the copy of each Construction Contract that Borrower has furnished or it will furnish to Lender is or will be a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s interest therein is not subject to any claim, setoff set-off or encumbrance;. (b) neither Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contract, and Borrower shall continue to be solely liable for all obligations of Borrower thereunder; and , Borrower hereby agrees agreeing to perform all of its obligations under each Construction Contract. Borrower hereby agrees to indemnify and hold Lender harmless against and from any loss, cost, liability or expense (including, including but not limited to, consultants’ fees and expenses and attorneys’ fees and expensesreasonable attorney’s fees) incurred in connection with Borrower’s resulting from any failure of Borrower to perform any such Construction Contract or any action taken by Lender, except for matters arising as a result of the gross negligence or willful misconduct by Lender;so perform. (c) upon the occurrence of Upon an Event of Default, and during the continuance thereofDefault which continues beyond any applicable cure period, Lender shall have the right at any time (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. Lender shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, and Borrower agrees to indemnify and hold Lender harmless against and from any loss, cost, liability or expense (including but not limited to to, reasonable attorneys’ fees) incurred in connection with any such action, except for matters arising as a result of the gross negligence or willful misconduct of Lender;any inaction. (d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact, in Borrower’s or Lender’s name, to enforce all rights of Borrower under each Construction Contract; provided, however, that Lender agrees not to exercise such appointment until the occurrence of an Event of Default, and during the continuance thereof. Such appointment is coupled with an interest and is therefore irrevocable;. (e) prior Prior to the occurrence of an a Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair impairs the security constituted by this assignment without the prior written consent of Lender;. (f) this This assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Liens against the PropertyDeed of Trust, any receiver in possession of the Property or any portion thereof Commercial Land and/or Improvements, and any entity affiliated with Entity formed by or on behalf of Lender which assumes Lender’s rights and obligations under this the Agreement; and (g) Borrower, in its capacity as general contractor for the Projects, hereby consent to the foregoing assignment and the terms of this Section 10.1.

Assignment of Construction Contracts. As additional security Prior to the request for the payment First Advance Borrower shall furnish Lender with copies of all Major Contracts and assign to Lender the Construction Contracts. Borrower shall permit no default under the Construction Contracts; shall not waive any of the Debt obligations of the parties thereunder; and shall do no act which would relieve such parties from their obligations thereunder. The Borrower shall make no amendments to such contracts, without the performance prior written consent of BorrowerLender and excepting Minor Changes shall not enter into Change Orders or extras without Lender’s Obligations, consent nor permit any changes to the Scope of the Work. Borrower hereby transfers and assigns shall allow all Major Contracts to be subject to the approval of Lender for its underwriting purposes; shall allow Lender to take advantage of all the benefit of Lender, all of Borrower’s rights and interest, but not its obligations, in, under and to all contracts, subcontracts and agreements, written or oral, between Borrower and any other party, and between parties other than Borrower, in any way relating to the development benefits of the Property and/or the construction contracts upon any Event of improvements on the Property, or the supplying of material (specially fabricated or otherwise), labor, supplies, or other services therefor (collectively, the “Construction Contracts”) upon the following terms Default by Borrower; and conditions: (a) Borrower represents and warrants shall submit evidence to Lender that the copy of each Construction Contract that Borrower has furnished or Contractor(s) will furnish permit Lender to Lender is or will be a true and complete copy thereof, including all amendments thereto, if any, and that acquire Borrower’s interest therein is not subject to any claimin such contracts without additional charge or fee beyond payment of the Contract Price should an Event of Default occur hereunder. Borrower shall, setoff or encumbrance; (b) neither this assignment nor any action by Lender shall constitute an assumption by Lender at its own cost and expense, perform, comply with and discharge all of any obligations under any Construction Contract, and Borrower shall continue to be liable for all the obligations of Borrower thereunder; under the Construction Contracts, including providing all Materials that are required to be provided by the Borrower, and Borrower hereby agrees use all efforts to perform all enforce or secure the performance of its obligations each obligation and undertaking of the Contractor under each the Construction ContractContracts. Borrower hereby agrees to indemnify and hold Lender harmless against and from any loss, cost, liability or expense (including, but not limited to, consultants’ fees and expenses and attorneys’ fees and expenses) incurred in connection with shall permit no surrender nor assignment of the Borrower’s failure interest under the Construction Contracts nor execute any mortgage or create or permit a lien which may be or become superior to perform any such Construction Contract or any action taken by Lenderthe Mortgage and Loan Documents, except for matters arising as nor permit a result subordination of the gross negligence Construction Contracts to any mortgage or willful misconduct by Lender; (c) upon lien. Borrower will not modify or amend the occurrence terms of an Event of Default, and during the continuance thereof, Lender shall have the right at any time (but shall have no obligation) to take in its name Construction Contracts nor excuse or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure waive any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. Lender shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, and Borrower agrees to indemnify and hold Lender harmless against and from any loss, cost, liability or expense (including but not limited to reasonable attorneys’ fees) incurred in connection with any such action, except for matters arising as a result of the gross negligence or willful misconduct of Lender; (d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact, in Borrower’s or Lender’s name, to enforce all rights of Borrower under each Construction Contract; provided, however, that Lender agrees not to exercise such appointment until the occurrence of an Event of Default, and during the continuance thereof. Such appointment is coupled with an interest and is therefore irrevocable; (e) prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment Contractor thereunder without the prior written consent of Lender; (f) this assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Liens against the Property, any receiver in possession of the Property or any portion thereof and any entity affiliated with Lender which assumes Lender’s rights and obligations under this Agreement; and (g) Borrower, in its capacity as general contractor for the Projects, hereby consent to the foregoing assignment and the terms of this Section 10.1.

Assignment of Construction Contracts. As additional security for the payment of the Debt and the performance of Borrower’s ObligationsLoan, Borrower hereby transfers and assigns to Lender for the benefit of Lender, all of Borrower’s rights and interest, but not its obligations, in, under and to all contracts, subcontracts and agreements, written or oral, between Borrower and any other party, and between parties other than Borrower, in any way relating to the development of the Property and/or the construction of improvements on the Property, or the supplying of material (specially fabricated or otherwise), labor, supplies, or other services therefor (collectively, the “each Construction Contracts”) Contract upon the following terms and conditions: (a) Borrower represents and warrants to Lender that the copy of each Construction Contract that Borrower has furnished or it will furnish to Lender is or will be a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s interest therein is not subject to any claim, setoff or encumbrance;. (b) neither Neither this assignment nor any action by Lender shall constitute an assumption by Lender of any obligations under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder; and , Borrower hereby agrees agreeing to perform all of its obligations under each Construction Contract. Borrower hereby agrees to indemnify and hold Lender harmless against and from any lossBORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSS, costCOST, liability or expense LIABILITY OR EXPENSE (includingINCLUDING BUT NOT LIMITED TO, but not limited to, consultantsREASONABLE ATTORNEYS’ fees and expenses and attorneys’ fees and expensesFEES) incurred in connection with Borrower’s failure to perform any such Construction Contract or any action taken by Lender, except for matters arising as a result of the gross negligence or willful misconduct by Lender;RESULTING FROM ANY FAILURE OF BORROWER TO SO PERFORM. (c) upon the occurrence of an Event of Default, and during the continuance thereof, Lender shall have the right at any time (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender may at any time determine to be necessary or advisable to cure any default under any Construction Contract or to protect the rights of Borrower or Lender thereunder. Lender shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, and Borrower agrees to indemnify and hold Lender harmless against and from any lossBORROWER AGREES TO INDEMNIFY AND HOLD LENDER HARMLESS AGAINST AND FROM ANY LOSS, costCOST, liability or expense LIABILITY OR EXPENSE (including but not limited to reasonable attorneysINCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ feesFEES) incurred in connection with any such action, except for matters arising as a result of the gross negligence or willful misconduct of Lender;INCURRED IN CONNECTION WITH ANY SUCH ACTION. (d) Borrower hereby irrevocably constitutes and appoints Lender as Borrower’s attorney-in-fact, in Borrower’s or Lender’s name, to enforce all rights of Borrower under each Construction Contract; provided, however, that Lender agrees not to exercise such appointment until the occurrence of an Event of Default, and during the continuance thereof. Such appointment is coupled with an interest and is therefore irrevocable;. (e) prior Prior to the occurrence of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contract; provided, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender;. (f) this This assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Liens against the PropertyDeed of Trust, any receiver in possession of the Property or any portion thereof and any entity affiliated with corporation formed by or on behalf of Lender which assumes Lender’s rights and obligations under this Agreement; and (g) Borrower, in its capacity as general contractor for the Projects, hereby consent to the foregoing assignment and the terms of this Section 10.1.

Assignment of Construction Contracts. As additional security for the payment of the Debt Notes and all of the performance of Borrower’s other Obligations, Borrower hereby transfers and assigns to Lender for the benefit of Lender, Administrative Agent all of Borrower’s 's rights and interest, but not its obligations, in, under and to all contracts, subcontracts and agreements, written or oral, between Borrower and any other party, and between parties other than Borrower, in any way relating to the development of the Property and/or the construction of improvements on the Property, or the supplying of material (specially fabricated or otherwise), labor, supplies, or other services therefor (collectively, the “each Construction Contracts”) Contract upon the following terms and conditions: (a) Borrower represents and warrants to Lender that the copy of each Construction Contract that Borrower has furnished or will furnish to Lender Administrative Agent is or will be (as applicable) a true and complete copy thereof, including all amendments thereto, if any, and that Borrower’s 's interest therein is not subject to any claim, setoff or encumbrance;. (b) neither Neither this assignment nor any action by Lender Administrative Agent shall constitute an assumption by Lender Administrative Agent of any obligations under any Construction Contract, and Borrower shall continue to be liable for all obligations of Borrower thereunder; and , Borrower hereby agrees agreeing to perform all of its obligations under each Construction Contract. Borrower hereby agrees to indemnify and hold Lender Administrative Agent and Lenders harmless against and from any loss, cost, liability or expense (including, including but not limited to, consultants’ fees and expenses and to attorneys’ fees and expenses' fees) incurred in connection with Borrower’s resulting from any failure of Borrower to perform any such Construction Contract or any action taken by Lender, except for matters arising as a result of the gross negligence or willful misconduct by Lender;so perform. (c) upon the occurrence of an Event of Default, and during the continuance thereof, Lender Administrative Agent shall have the right at any time (but shall have no obligation) to take in its name or in the name of Borrower such action as Lender Administrative Agent may at any time determine to be necessary or advisable to cure any default under any Construction Contract Contract, after notice to Borrower of any default or failure under the Construction Contact and ten (10) days opportunity to cure same, or to protect the rights of Borrower or Lender Administrative Agent thereunder. Lender Administrative Agent shall incur no liability if any action so taken by it or in its behalf shall prove to be inadequate or invalid, and Borrower agrees to indemnify and hold Lender Administrative Agent and Lenders harmless against and from any loss, cost, liability or expense (including but not limited to reasonable attorneys’ ' fees) incurred in connection with any such action, except for matters arising as a result of the gross negligence or willful misconduct of Lender;. (d) Borrower hereby irrevocably constitutes and appoints Lender Administrative Agent as Borrower’s 's attorney-in-fact, in Borrower’s 's or Lender’s Administrative Agent's name, to enforce all rights of Borrower under each Construction Contract; provided, however, that Lender agrees not to exercise such appointment until the occurrence of an Event of Default, and during the continuance thereof. Such appointment is coupled with an interest and is therefore irrevocable; (e) prior to . Administrative Agent agrees that it will only exercise the occurrence power of attorney herein granted during the continuance of an Event of Default, Borrower shall have the right to exercise its rights as owner under each Construction Contract, provided that Borrower shall not cancel or amend any Construction Contract or do or suffer to be done any act which would impair the security constituted by this assignment without the prior written consent of Lender; (f) this assignment shall inure to the benefit of Lender and its successors and assigns, any purchaser upon foreclosure of the Liens against the Property, any receiver in possession of the Property or any portion thereof and any entity affiliated with Lender which assumes Lender’s rights and obligations under this Agreement; and (g) Borrower, in its capacity as general contractor for the Projects, hereby consent to the foregoing assignment and the terms of this Section 10.1.