SEC INDEMNITY AND GUARANTY AGREEMENT
Exhibit 10.15
Loan No.: 00-0000000 Hidden Lakes Apartments
THIS SEC INDEMNITY AND GUARANTY AGREEMENT (as the same may hereafter be amended, consolidated,
renewed or replaced, this “Agreement”), made as of December 28, 2006, by NNN APARTMENT REIT, INC.,
a Maryland corporation (“Indemnitor”), whose address is c/o Triple Net Properties, LLC, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxx, Xxxxxxxxxx 00000, in favor of WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association (together with its successors and assigns, “Lender”),
whose address is Commercial Real Estate Services, 0000 Xxxxxxxx Xxxxx URP — 4, NC 1075, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, Apartment REIT Hidden Lakes, LP, a Texas limited partnership (“Borrower”), has
obtained a loan (the “Loan”) in the principal amount of Nineteen Million Two Hundred Eighteen
Thousand and No/100 Dollars ($19,218,000.00) from Lender; and
WHEREAS, the Loan is evidenced by a Promissory Note (as the same may from time to time be
amended, consolidated, renewed or replaced, the “Note”) dated of even date herewith, executed by
Borrower and payable to the order of Lender, in the stated principal amount of Nineteen Million Two
Hundred Eighteen Thousand and No/100 Dollars ($19,218,000.00), and is secured by a Deed of Trust,
Security Agreement and Fixture Filing dated of even date herewith (as the same may from time to
time be amended, consolidated, renewed or replaced, the “Security Instrument”) from Borrower for
the benefit of Lender, encumbering that certain real property situated in the County of Bexar,
State of Texas, as more particularly described on Exhibit “A” attached hereto and
incorporated herein by this reference, together with the buildings, structures and other
improvements now or hereafter located thereon (the “Property”) and by other documents and
instruments (the Note, the Security Instrument and such other documents and instruments, as the
same may from time to time be amended, consolidated, renewed or replaced, being collectively
referred to herein as the “Loan Documents”); and
WHEREAS, as a condition to making the Loan to Borrower, Lender has required that Indemnitor
execute and deliver this Agreement; and
WHEREAS, the extension of the Loan to Borrower is of substantial benefit to Indemnitor and,
therefore, Indemnitor desires to execute and delivery this Agreement.
NOW, THEREFORE, to induce Lender to extend the Loan to Borrower and in consideration of the
foregoing premises and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Indemnitor hereby covenants and agrees for the benefit of Lender, as
follows:
1. Indemnity and Guaranty. Indemnitor irrevocably and unconditionally guarantees to
Lender the prompt payment of all liabilities, obligations, losses, damages, costs and expenses
(including, without limitation, attorneys’ fees), causes of action, suits, claims, demands and
judgments of any nature or description whatsoever (collectively, “Costs”) arising out of or
attributable to (i) the violation of any applicable law governing the sale of securities in
connection with the structure, organization, sale or syndication of partnership interests in
Apartment REIT Hidden Lakes, LP, or in the sale or syndication or tenant in common ownership
interest in the property and (ii) the Securities Liabilities (as hereinafter defined) and any legal
or other expenses reasonably incurred by Lender, in investigating or defending the Securities
Liabilities, to the extent such Securities Liabilities relate to a Securities and Exchange
Commission (“SEC”) investigation, inquiry or proceeding relating to Triple Net Properties, LLC or
any of its affiliates. As used herein, the term “Securities Liabilities” shall mean any liability,
obligation or other remedy (including, without limitation, any right or rescission in favor of any
Borrower or any member of any Borrower) arising from or related to that certain investigation by
the SEC captioned “In
the matter of Triple Net Properties, LLC” (as well as any subsequent related investigation
involving any affiliate of Triple Net Properties, LLC) pursuant to which the SEC has requested
information, including financial information, from Triple Net Properties, LLC relating to
disclosure in securities offerings sponsored by Triple Net Properties, LLC and its affiliates.
This is a guaranty of payment and performance and not of collection. The liability of
Indemnitor under this Agreement shall be direct and immediate and not conditional or contingent
upon the pursuit of any remedies against Borrower or any other person (including, without
limitation, other guarantors, if any), nor against the collateral for the Loan. Indemnitor waives
any right to require that an action be brought against Borrower or any other person or to require
that resort be made to any collateral for the Loan or to any balance of any deposit account or
credit on the books of Lender in favor of Borrower or any other person. In the event of a default
under the Loan Documents which is not cured within any applicable grace or cure period, Lender
shall have the right to enforce its rights, powers and remedies (including, without limitation,
foreclosure of all or any portion of the collateral for the Loan) thereunder or hereunder, in any
order, and all rights, powers and remedies available to Lender in such event shall be non-exclusive
and cumulative of all other rights, powers and remedies provided thereunder or hereunder or by law
or in equity. If the indebtedness and obligations guaranteed hereby are partially paid or
discharged by reason of the exercise of any of the remedies available to Lender, this Agreement
shall nevertheless remain in full force and effect, and Indemnitor shall remain liable for all
remaining indebtedness and obligations guaranteed hereby, even though any rights which Indemnitor
may have against Borrower may be destroyed or diminished by the exercise of any such remedy.
2. Indemnification Procedures.
(a) If any action shall be brought against Lender based upon any of the matters for which
Lender is indemnified hereunder, Lender shall notify Indemnitor in writing thereof and Indemnitor
shall promptly assume the defense thereof, including, without limitation, the employment of counsel
acceptable to Lender and the negotiation of any settlement; provided, however, that
any failure of Lender to notify Indemnitor of such matter shall not impair or reduce the
obligations of Indemnitor hereunder. Lender shall have the right, at the expense of Indemnitor
(which expense shall be included in Costs), to employ separate counsel in any such action and to
participate in the defense thereof. In the event Indemnitor shall fail to discharge or undertake
to defend Lender against any claim, loss or liability for which Lender is indemnified hereunder,
Lender may, at its sole option and election, defend or settle such claim, loss or liability. The
liability of Indemnitor to Lender hereunder shall be conclusively established by such settlement,
provided such settlement is made in good faith, the amount of such liability to include both the
settlement consideration and the costs and expenses, including, without limitation, attorneys’ fees
and disbursements, incurred by Lender in effecting such settlement. In such event, such settlement
consideration, costs and expenses shall be included in Costs and Indemnitor shall pay the same as
hereinafter provided. Lender’s good faith in any such settlement shall be conclusively established
if the settlement is made on the advice of independent legal counsel for Lender.
(b) Indemnitor shall not, without the prior written consent of Lender: (i) settle or
compromise any action, suit, proceeding or claim or consent to the entry of any judgment that does
not include as an unconditional term thereof the delivery by the claimant or plaintiff to Lender of
a full and complete written release of Lender (in form, scope and substance satisfactory to Lender
in its sole discretion) from all liability in respect of such action, suit, proceeding or claim and
a dismissal with prejudice of such action, suit, proceeding or claim; or (ii) settle or compromise
any action, suit, proceeding or claim in any manner that may adversely affect Lender or obligate
Lender to pay any sum or perform any obligation as determined by Lender in its sole discretion.
(c) All Costs shall be immediately reimbursable to Lender when and as incurred and, in the
event of any litigation, claim or other proceeding, without any requirement of waiting for the
ultimate outcome of such litigation, claim or other proceeding, and Indemnitor shall pay to Lender
any and all Costs within ten (10) days after written notice from Lender itemizing the amounts
thereof incurred to the date of such notice. In addition to any other remedy available for the
failure of Indemnitor to
periodically pay such Costs, such Costs, if not paid within said ten-day period, shall bear
interest at the Default Interest Rate (as defined in the Note).
3. Reinstatement of Obligations. If at any time all or any part of any payment made
by Indemnitor or received by Lender from Indemnitor under or with respect to this Agreement is or
must be rescinded or returned for any reason whatsoever (including, but not limited to, the
insolvency, bankruptcy or reorganization of Indemnitor or Borrower), then the obligations of
Indemnitor hereunder shall, to the extent of the payment rescinded or returned, be deemed to have
continued in existence, notwithstanding such previous payment made by Indemnitor, or receipt of
payment by Lender, and the obligations of Indemnitor hereunder shall continue to be effective or be
reinstated, as the case may be, as to such payment, all as though such previous payment by
Indemnitor had never been made.
4. Waivers by Indemnitor. To the extent permitted by law, Indemnitor hereby waives
and agrees not to assert or take advantage of:
(a) Any right to require Lender to proceed against Borrower or any other person or to proceed
against or exhaust any security held by Lender at any time or to pursue any other remedy in
Lender’s power or under any other agreement before proceeding against Indemnitor hereunder;
(b) Any defense that may arise by reason of the incapacity, lack of authority, death or
disability of any other person or persons or the failure of Lender to file or enforce a claim
against the estate (in administration, bankruptcy or any other proceeding) of any other person or
persons;
(c) Demand, presentment for payment, notice of nonpayment, protest, notice of protest and all
other notices of any kind, or the lack of any thereof, including, without limiting the generality
of the foregoing, notice of the existence, creation or incurring of any new or additional
indebtedness or obligation or of any action or non-action on the part of Borrower, Lender, any
endorser or creditor of Borrower or of Indemnitor or on the part of any other person whomsoever
under this or any other instrument in connection with any obligation or evidence of indebtedness
held by Lender;
(d) Any defense based upon an election of remedies by Lender;
(e) Any right or claim of right to cause a marshalling of the assets of Indemnitor;
(f) Any principle or provision of law, statutory or otherwise, which is or might be in
conflict with the terms and provisions of this Agreement;
(g) Any duty on the part of Lender to disclose to Indemnitor any facts Lender may now or
hereafter know about Borrower or the Property, regardless of whether Lender has reason to believe
that any such facts materially increase the risk beyond that which Indemnitor intends to assume or
has reason to believe that such facts are unknown to Indemnitor or has a reasonable opportunity to
communicate such facts to Indemnitor, it being understood and agreed that Indemnitor is fully
responsible for being and keeping informed of the financial condition of Borrower, of the condition
of the Property and of any and all circumstances bearing on the risk that liability may be incurred
by Indemnitor hereunder;
(h) Any lack of notice of disposition or of manner of disposition of any collateral for the
Loan;
(i) Any invalidity, irregularity or unenforceability, in whole or in part, of any one or more
of the Loan Documents;
(j) Any deficiencies in the collateral for the Loan or any deficiency in the ability of Lender
to collect or to obtain performance from any persons or entities now or hereafter liable for the
payment and performance of any obligation hereby guaranteed;
(k) An assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the
voluntary or involuntary bankruptcy proceeding of Borrower) or any other stay provided under any
other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction
whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be
interpreted to stay, interdict, condition, reduce or inhibit the ability of Lender to enforce any
of its rights, whether now or hereafter required, which Lender may have against Indemnitor or the
collateral for the Loan;
(l) Any modifications of the Loan Documents or any obligation of Borrower relating to the Loan
by operation of law or by action of any court, whether pursuant to the Bankruptcy Reform Act of
1978, as amended, or any other debtor relief law (whether statutory, common law, case law or
otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise. Without
limiting the generality of the foregoing, Indemnitor expressly waives any and all rights to which
Indemnitor may otherwise have been entitled under any suretyship laws in effect from time to time,
including (without limitation) any rights pursuant to Rule 31 of the Texas Rules of Civil
Procedure, Section 17.001 of the Texas Civil Practice and Remedies Code, and Chapter 34 of the
Texas Business and Commerce Code.
(m) Any action, occurrence, event or matter consented to by Indemnitor under Section
6(h) hereof, under any other provision hereof, or otherwise; and
5. Intentionally Deleted.
6. General Provisions.
(a) Fully Recourse. All of the terms and provisions of this Agreement are recourse
obligations of Indemnitor and not restricted by any limitation on personal liability set forth in
any of the Loan Documents.
(b) Unsecured Obligations. Indemnitor hereby acknowledges that Lender’s appraisal of
the Property is such that Lender is not willing to accept the consequences of the inclusion of
Indemnitor’s indemnity set forth herein among the obligations secured by the Security Instrument
and the other Loan Documents and that Lender would not make the Loan but for the unsecured personal
liability undertaken by Indemnitor herein.
(c) Survival. This Agreement shall be deemed to be continuing in nature and shall
remain in full force and effect and shall survive the exercise of any remedy by Lender under the
Security Instrument or any of the other Loan Documents, including, without limitation, any
foreclosure or deed in lieu thereof, even if, as a part of such remedy, the Loan is paid or
satisfied in full.
(d) No Subrogation; No Recourse Against Lender. Notwithstanding the satisfaction by
Indemnitor of any liability hereunder, Indemnitor shall not have any right of subrogation,
contribution, reimbursement or indemnity whatsoever or any right of recourse to or with respect to
the assets or property of Borrower or to any collateral for the Loan. In connection with the
foregoing, Indemnitor expressly waives any and all rights of subrogation to Lender against
Borrower, and Indemnitor hereby waives any rights to enforce any remedy which Lender may have
against Borrower and any right to participate in any collateral for the Loan. In addition to and
without in any way limiting the foregoing, Indemnitor hereby subordinates any and all indebtedness
of Borrower now or hereafter owed to Indemnitor to all indebtedness of Borrower to Lender, and
agrees with Lender that Indemnitor shall not demand or accept any payment of principal or interest
from Borrower, shall not claim any offset or other reduction of Indemnitor’s obligations hereunder
because of any such indebtedness and shall not take
any action to obtain any of the collateral from
the Loan. Further, Indemnitor shall not have any right of recourse against Lender by reason of any
action Lender may take or omit to take under the provisions of this Agreement or under the
provisions of any of the Loan Documents.
(e) Reservation of Rights. Nothing contained in this Agreement shall prevent or in
any way diminish or interfere with any rights or remedies, including, without limitation, the right
to contribution, which Lender may have against Borrower, Indemnitor or any other party under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (codified at Title 42
U.S.C. §9601 et seq.), as it may be amended from time to time, or any other
applicable federal, state or local laws, all such rights being hereby expressly reserved.
(f) Financial Statements. Indemnitor hereby agrees, as a material inducement to
Lender to make the Loan to Borrower, to furnish to Lender, from time to time, promptly upon demand
by Lender annual financial statements for Indemnitor, within one hundred twenty (120) days after
the end of each calendar year, certified by or on behalf of Indemnitor, in form and substance
acceptable to Lender. Indemnitor hereby warrants and represents unto Lender that any and all
balance sheets, net worth statements and other financial data which have heretofore been given or
may hereafter be given to Lender with respect to Indemnitor did or will at the time of such
delivery fairly and accurately present the financial condition of Indemnitor.
(g) Rights Cumulative; Payments. Lender’s rights under this Agreement shall be in
addition to all rights of Lender under the Note, the Security Instrument and the other Loan
Documents. Further, payments made by Indemnitor under this Agreement shall not reduce in any
respect Borrower’s obligations and liabilities under the Note, the Security Instrument and the
other Loan Documents except with respect to, and to the extent of, Borrower’s obligation and
liability for the payment made by Indemnitor.
(h) No Limitation on Liability. Indemnitor hereby consents and agrees that Lender may
at any time and from time to time without further consent from Indemnitor do any of the following
events (if applicable), and the liability of Indemnitor under this Agreement shall be unconditional
and absolute and shall in no way be impaired or limited by any of the following events, whether
occurring with or without notice to Indemnitor or with or without consideration: (i) any extensions
of time for performance required by any of the Loan Documents or extension or renewal of the Note;
(ii) any sale, assignment or foreclosure of the Note, the Security Instrument or any of the other
Loan Documents or any sale or transfer of the Property or any portion thereof; (iii) any change in
the composition of Borrower, including, without limitation, the withdrawal or removal of Indemnitor
from any current or future position of ownership, management or control of Borrower; (iv) the
accuracy or inaccuracy of the representations and warranties made by Indemnitor herein or by
Borrower in any of the Loan Documents; (v) the release of Borrower or of any other person or entity
from performance or observance of any of the agreements, covenants, terms or conditions contained
in any of the Loan Documents by operation of law, Lender’s voluntary act or otherwise; (vi) the
release or substitution in whole or in part of any security for the Loan; (vii) Lender’s failure to
record the Security Instrument or to file any financing statement (or Lender’s improper recording
or filing thereof) or to otherwise perfect, protect, secure or insure any lien or security interest
given as security for the Loan; (viii) the modification of the terms of any one or more of the Loan
Documents; or (ix) the taking of, or failure to take any action of any type whatsoever. No such
action which Lender shall take or fail to take in connection with the Loan Documents or any
collateral for the Loan, nor any course of dealing with Borrower or any other person, shall limit,
impair or release Indemnitor’s obligations hereunder, affect this Agreement in any way or afford
Indemnitor any recourse against Lender. Nothing contained in this Section shall be construed to
require Lender to take or refrain from taking any action referred to herein.
(i) Intentionally Reserved.
(j) Governing Law. THIS AGREEMENT SHALL BE EXCLUSIVELY GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED, EXCEPT TO THE EXTENT THAT
THE APPLICABILITY OF ANY OF SUCH LAWS MAY NOW OR HEREAFTER BE PREEMPTED BY FEDERAL LAW, IN WHICH
CASE SUCH FEDERAL LAW SHALL SO GOVERN AND BE CONTROLLING.
(k) Binding Effect; Waiver of Acceptance. This Agreement shall bind Indemnitor and
its heirs, personal representatives, successors and assigns and shall inure to the benefit of
Lender and the officers, directors, shareholders, agents and employees of Lender and their
respective heirs, successors and assigns. Notwithstanding the foregoing, Indemnitor shall not
assign any of its rights or obligations under this Agreement without the prior written consent of
Lender, which consent may be withheld by Lender in its sole discretion. Indemnitor hereby waives
any acceptance of this Agreement by Lender, and this Agreement shall immediately be binding upon
Indemnitor.
(l) Notice. All notices, demands, requests or other communications to be sent by one
party to the other hereunder or required by law shall be in writing and shall be deemed to have
been validly given or served by delivery of the same in person to the intended addressee, or by
depositing the same with Federal Express or another reputable private courier service for next
business day delivery to the intended addressee at its address set forth on the first page of this
Agreement or at such other address as may be designated by such party as herein provided, or by
depositing the same in the United States mail, postage prepaid, registered or certified mail,
return receipt requested, addressed to the intended addressee at its address set forth on the first
page of this Agreement or at such other address as may be designated by such party as herein
provided. All notices, demands and requests shall be effective upon such personal delivery, or one
(1) business day after being deposited with the private courier service, or two (2) business days
after being deposited in the United States mail as required above. Rejection or other refusal to
accept or the inability to deliver because of changed address of which no notice was given as
herein required shall be deemed to be receipt of the notice, demand or request sent. By giving to
the other party hereto at least fifteen (15) days’ prior written notice thereof in accordance with
the provisions hereof, the parties hereto shall have the right from time to time to change their
respective addresses and each shall have the right to specify as its address any other address
within the United States of America.
(m) No Waiver; Time of Essence; Business Day. The failure of any party hereto to
enforce any right or remedy hereunder, or to promptly enforce any such right or remedy, shall not
constitute a waiver thereof nor give rise to any estoppel against such party nor excuse any of the
parties hereto from their respective obligations hereunder. Any waiver of such right or remedy
must be in writing and signed by the party to be bound. This Agreement is subject to enforcement
at law or in equity, including actions for damages or specific performance. Time is of the essence
hereof. The term “business day” as used herein shall mean a weekday, Monday through Friday, except
a legal holiday or a day on which banking institutions in New York, New York are authorized by law
to be closed.
(n) Captions for Convenience. The captions and headings of the sections and
paragraphs of this Agreement are for convenience of reference only and shall not be construed in
interpreting the provisions hereof.
(o) Reasonable Attorney’s Fees. In the event it is necessary for Lender to retain the
services of an attorney or any other consultants in order to enforce this Agreement, or any portion
thereof, Indemnitor agrees to pay to Lender, in addition to Indemnitor’s other obligations to pay
Lender hereunder, any and all costs and expenses, including, without limitation, reasonable
attorneys’ fees, incurred by Lender as a result thereof and such costs, fees and expenses shall be
included in Costs.
(p) Successive Actions. A separate right of action hereunder shall arise each time
Lender acquires knowledge of any matter indemnified or guaranteed by Indemnitor under this
Agreement. Separate and successive actions may be brought hereunder to enforce any of the
provisions hereof at any time and from time to time. No action hereunder shall preclude any
subsequent action, and Indemnitor
hereby waives and covenants not to assert any defense in the
nature of splitting of causes of action or merger of judgments.
(q) Joint and Several Liability. Notwithstanding anything to the contrary contained
herein, the representations, warranties, covenants and agreements made by Indemnitor herein, and
the liability of Indemnitor hereunder, is joint and several if Indemnitor is comprised of more than
one person or entity.
(r) Reliance. Lender would not make the Loan to Borrower without this Agreement.
Accordingly, Indemnitor intentionally and unconditionally enters into the covenants and agreements
as set forth above and understands that, in reliance upon and in consideration of such covenants
and agreements, the Loan shall be made and, as part and parcel thereof, specific monetary and other
obligations have been, are being and shall be entered into which would not be made or entered into
but for such reliance.
(s) Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be effective only upon delivery and thereafter shall be deemed an original, and all
of which shall be taken to be one and the same instrument, for the same effect as if all parties
hereto had signed the same signature page. Any signature page of this Agreement may be detached
from any counterpart of this Agreement without impairing the legal effect of any signatures thereon
and may be attached to another counterpart of this Agreement identical in form hereto but having
attached to it one or more additional signature pages.
(t) SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
| (1) | INDEMNITOR, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (A) SUBMITS TO PERSONAL JURISDICTION IN THE STATE IN WHICH THE PROPERTY IS LOCATED OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS AGREEMENT, (B) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN THE COUNTY AND STATE IN WHICH THE PROPERTY IS LOCATED, (C) SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND (D) TO THE FULLEST EXTENT PERMITTED BY LAW, AGREES THAT INDEMNITOR WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM). | ||
| (2) | INDEMNITOR, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS AGREEMENT OR ANY CONDUCT, ACT OR OMISSION OF LENDER OR INDEMNITOR, OR ANY OF THEIR DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH LENDER OR INDEMNITOR, IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. |
(u) Waiver by Indemnitor. Indemnitor covenants and agrees that, upon the commencement
of a voluntary or involuntary bankruptcy proceeding by or against Borrower, Indemnitor shall not
seek or cause Borrower or any other person or entity to seek a supplemental stay or other relief,
whether injunctive or otherwise, pursuant to 11 U.S.C. §105 or any other provision of the
Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law, (whether statutory,
common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect,
which may be or become applicable, to stay, interdict, condition, reduce or inhibit the ability of
Lender to enforce any rights of Lender against Indemnitor or the collateral for the Loan by virtue
of this Agreement or otherwise.
(v) SPECIFIC NOTICE. IT IS EXPRESSLY AGREED AND UNDERSTOOD THAT THIS AGREEMENT
INCLUDES INDEMNIFICATION PROVISIONS WHICH, IN CERTAIN CIRCUMSTANCES, COULD INCLUDE AN
INDEMNIFICATION BY INDEMNITOR OF LENDER FROM CLAIMS OR LOSSES ARISING AS A RESULT OF LENDER’S OWN
NEGLIGENCE.
(w) Secondary Market. Lender may sell, transfer and deliver the Loan Documents to one
or more investors in the secondary mortgage market. In connection with such sale or otherwise,
Lender may retain or assign responsibility for servicing the Loan or may delegate some or all of
such responsibility and/or obligations to a servicer, including, but not limited to, any
subservicer or master servicer, on behalf of the investors. All references to Lender herein shall
refer to and include, without limitation, any such servicer, to the extent applicable.
(x) Decisions. Wherever pursuant to this Agreement (i) Lender exercises any right
given to it to approve or disapprove, (ii) any arrangement or term is to be satisfactory or
acceptable to Lender, or (iii) any other decision or determination is to be made by Lender, the
decision of Lender to approve or disapprove or to accept or not accept, all decisions that
arrangements or terms are satisfactory or not satisfactory and all other decisions and
determinations made by Lender, shall be in the sole and absolute discretion of Lender and shall be
final and conclusive, except as may be otherwise expressly and specifically provided herein.
(y) Dissemination of Information. If Lender determines at any time to sell, transfer
or assign the Note, the Security Instrument and the other Loan Documents, and any or all servicing
rights with respect thereto, or to grant participations therein (the “Participations”) or issue
mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated
or unrated public offering or private placement (the “Securities”), Lender may forward to each
purchaser, transferee, assignee, servicer, participant, investor, or their respective successors in
such Participations and/or Securities (collectively, the “Investor”) or any Rating Agency (as
defined in the Security Instrument) rating such Securities, each prospective Investor and each of
the foregoing’s respective counsel, all documents and information which Lender now has or may
hereafter acquire relating to the Loan and to Borrower, any Indemnitor and the Property, which
shall have been furnished by Borrower, or any Indemnitor as Lender determines necessary or
desirable.
(z) Costs. Wherever pursuant to this Agreement it is provided that Indemnitor shall
pay any costs and expenses, such costs and expenses shall include, but not be limited to,
reasonable legal fees and disbursements of Lender.
(aa) Other Guaranties. This Agreement is in addition to any and all other guaranties
relating to the Debt (as defined in the Security Instrument) or any portion thereof. To the extent
Indemnitor may become liable under this Agreement and one or more other indemnitors may become
liable under the terms of any other guaranty made in favor of Lender with respect to the Debt,
Lender shall be entitled to exercise any and all of its remedies against Indemnitor under this
Agreement as well as any and all of its remedies against any one or more indemnitors under such
other guaranties jointly and severally.
(bb) Future Assignments by Borrower. Indemnitor agrees that, upon a TIC Transfer (as
defined in the Security Instrument) in accordance with Section 2.9 of the Security
Instrument the Co-Owner Transferee shall be included in the defined term “Borrower” hereunder, and
Indemnitor shall be deemed to have restated, ratified and affirmed the representations, warranties,
covenants and obligations set forth herein. Such restatement, ratification and affirmation shall
be deemed made on the date of closing of each such TIC Transfer, based solely on the provisions of
this Section, without any requirement for further documentation.
[The Remainder of the Page is Intentionally Blank]
(cc) Entire Agreement; Amendment; Severability. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS EMBODY THE FINAL ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL
PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE
OF PRIOR CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO.
THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO. This Agreement contains the entire
agreement between the parties respecting the matters herein set forth and supersedes all prior
agreements, whether written or oral, between the parties respecting such matters. Any amendments
or modifications hereto, in order to be effective, shall be in writing and executed by the parties
hereto. A determination that any provision of this Agreement is unenforceable or invalid shall not
affect the enforceability or validity of any other provision, and any determination that the
application of any provision of this Agreement to any person or circumstance is illegal or
unenforceable shall not affect the enforceability or validity of such provision as it may apply to
any other persons or circumstances.
IN WITNESS WHEREOF, Indemnitor has executed this SEC Indemnity and Guaranty Agreement as of
the day and year first written above.
| INDEMNITOR |
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| NOTICE OF INDEMNIFICATION: INDEMNITOR HEREBY ACKNOWLEDGES AND AGREES THAT THIS INDEMNITY AGREEMENT CONTAINS CERTAIN INDEMNIFICATION PROVISIONS PURSUANT TO SECTION 1 HEREOF |
NNN APARTMENT REIT, INC., a Maryland corporation |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Secretary | |||
