ASSIGNMENT OF WARRANTIES AND OTHER CONTRACT RIGHTS
Loan No.: 00-0000000 Xxxxxx Ranch Apartments
ASSIGNMENT OF WARRANTIES AND OTHER CONTRACT RIGHTS
THIS ASSIGNMENT OF WARRANTIES AND OTHER CONTRACT RIGHTS (as the same may be hereafter amended, restated or modified, this “Assignment”), made as of April 12, 2007, by Apartment REIT Xxxxxx Ranch, LP, a Texas limited partnership (“Borrower”), having an address at 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 XXX - 0, XX 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000.
W I T N E S S E T H:
THAT, WHEREAS, Xxxxxxxx has executed and delivered to Lender a Promissory Note dated of even date herewith (the “Note”), payable to the order of Lender, which Note evidences a loan made by Xxxxxx to Borrower; and
WHEREAS, the Note is secured by that certain 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, as mortgagor, to Lender, as mortgagee, encumbering that certain real property situated at 00000 Xxxxxx Xxxx, Xxx Xxxxxxx, xxx Xxxxxx of Bexar, State of Texas, as more particularly described on Exhibit “A” attached hereto and by this reference incorporated herein (the “Real Estate”); and
WHEREAS, Borrower is desirous of further securing to Lender the repayment of the indebtedness evidenced by the Note and the performance of the other terms, covenants and agreements contained herein and in the Note, the Security Instrument and each other document evidencing, securing, guaranteeing and/or relating to the indebtedness evidenced by the Note (the Note, the Security Instrument and such other documents, as each of the foregoing may from time to time be amended or replaced, are herein sometimes collectively referred to as the “Loan Documents”).
NOW, THEREFORE, in consideration of the making of the loan evidenced by the Note by Xxxxxx to Borrower and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower hereby irrevocably, absolutely and unconditionally assigns and transfers to Lender, its successors and assigns, all of Borrower’s right, title and interest in and to:
(A) any and all contracts and agreements with management agents, leasing agents, sales agents, service and maintenance agents, contractors and other third parties (collectively, the “Contracting Parties”, or, singularly, a “Contracting Party”), whether now existing or hereafter arising, relating to the management, operation, leasing, sale, maintenance and repair of the Real Estate and/or the apartment complex containing a total of 364 units and other improvements located on the Real Estate (the “Improvements”) (the Real Estate and the Improvements are sometimes hereinafter collectively referred to as the “Property”), including, without limitation, management agreements, equipment leases and personal property leases (collectively, the “Contracts” or, singularly, a “Contract”); and
(B) any and all warranties and guaranties relating to the Property or any fixtures, equipment or personal property owned by Xxxxxxxx and located on and/or used in connection with the Property, whether now existing or hereafter arising; and
(C) any and all permits, licenses, certificates of use and occupancy (or their equivalent) and applications and approvals issued by any governmental authority or agency relating to the construction, ownership, operation and/or use of the Property, whether now existing or hereafter arising.
(The Contracts, together with the items referred to in subparagraphs (B) and (C) above, are sometimes herein collectively referred to as the “General Intangibles”.)
This Assignment is made upon the following terms and conditions:
1. Borrower represents, warrants and covenants to and with Lender that: (a) Borrower shall not make any changes in or amendments to any of the General Intangibles without the prior written consent of Lender, which consent shall not be unreasonably withheld, provided, however, that notwithstanding the foregoing, Xxxxxx’s consent shall not be required with respect to changes in or amendments to any Contract (i) which does not relate to the overall management or operation of the Property, (ii) which is terminable without cause and without payment of any penalty or termination fee on thirty (30) days’ notice, and (iii) under which the Contractor does not have any right, by reason of applicable law or otherwise, to assert a lien against the Property which is superior to the lien of the Security Instrument; (b) Borrower shall not tender or accept a surrender or cancellation of any of the General Intangibles without the prior written consent of Lender where such surrender or cancellation would materially or adversely affect the Property or Lender’s interest therein or Lender’s security or where such surrender or cancellation would violate the terms of any Loan Document; (c) Borrower shall promptly provide to Lender copies of all changes in or amendments to the Contract whether or not Lender’s consent thereto is required pursuant to clause (a) above and Borrower shall promptly notify Lender in writing of any surrender or cancellation of a Contract whether or not Lender’s consent thereto is required pursuant to clause (b) above; (d) except as otherwise expressly permitted by the terms of the Security Instrument, Borrower has not assigned or granted and will not assign or grant a security interest in any of the General Intangibles to anyone other than Lender; (e) Xxxxxxxx’s interest in the General Intangibles is not subject to any claim, setoff, lien, deduction or encumbrance of any nature (other than the encumbrance created hereby, the encumbrance created by the Security Instrument and those subordinate encumbrances, if any, created in connection with any junior encumbrances on the Real Estate expressly permitted by the terms of the Security Instrument); (f) Borrower has full power and authority to make this Assignment; (g) Borrower shall make all required payments and otherwise perform its obligations under the General Intangibles; and (h) Borrower shall give immediate notice to Lender of any notice of default served upon Borrower with respect to its obligations under any of the General Intangibles and, at the sole cost and expense of Borrower, shall enforce or secure the performance of each and every material obligation of the Contracting Parties to be kept or performed under the Contracts.
2. Neither this Assignment nor any action or actions on the part of Lender (including, without limitation, any assumption by Lender of the rights and obligations under the General Intangibles pursuant to the provisions of Paragraph 3 hereof) shall relieve Borrower of any obligation under the General Intangibles and Borrower shall continue to be primarily liable for all obligations thereunder, Borrower hereby agreeing to perform each and all of its obligations under the General Intangibles. Borrower hereby protects, defends, indemnifies and holds Xxxxxx free and harmless from and against any and all loss, cost, liability or expense (including, but not limited to, attorneys’ fees and accountants’ fees) resulting from any failure of Borrower to so perform under the General Intangibles.
3. It shall be an Event of Default hereunder upon any failure by Xxxxxxxx in the performance or observance of any covenant or condition hereof and the continuance of such failure for thirty (30) days (or such shorter period of time provided under any other Loan Document) after notice of such default from Lender (provided that no such notice shall be required if not required under any other Loan Document) within which to cure the same. Upon an Event of Default hereunder or under any of the other Loan Documents, Lender may, but shall not be obligated to, assume any or all of the obligations of Borrower under any or all of the Contracts and/or exercise the rights, benefits and privileges of Borrower under any or all of the General Intangibles.
4. Upon the occurrence of an Event of Default hereunder or under any of the other Loan Documents, Lender may give notice to any or all of the Contracting Parties, either requiring the Contracting Party to continue performance under its Contract or, alternatively, terminating the Contract. This Assignment shall constitute a direction to and full authority to the Contracting Parties under the Contracts to act at Xxxxxx’s written direction and otherwise perform on Xxxxxx’s behalf under the Contracts, without proof of the event of default relied upon. The Contracting Parties shall be entitled to rely upon written notice from Xxxxxx that Xxxxxx has assumed all of the rights and obligations of Borrower under the applicable Contract without any inquiry into whether Borrower is in default hereunder or under any of the other Loan Documents. Such assumption of a Contract by Xxxxxx shall be evidenced by written notice from Lender to the applicable Contracting Party. Under no circumstances shall Lender be deemed by any party to have assumed Xxxxxxxx’s rights and obligations under a Contract unless and until such written notice is delivered to the Contracting Party in accordance with the foregoing provision.
5. Lender shall have the right at any time, but shall have no obligation, to take in its name or in the name of Borrower, or otherwise, such action as Lender may at any time or from time to time determine to be reasonably necessary to cure any default under the General Intangibles or to protect the rights of Borrower or Lender thereunder. Lender shall incur no liability to Borrower if any action taken by Lender or in Xxxxxx’s behalf in good faith pursuant to this Assignment shall prove to be in whole or in part inadequate or invalid. Borrower hereby protects, defends, indemnifies and holds Lender and its affiliated entities, free and harmless from and against any and all loss, cost, liability or expense (including, but not limited to, attorneys’ fees and accountants’ fees) to which Lender may be exposed, or that Lender may incur, in exercising any of its rights under this Assignment, unless caused by the intentional misconduct or gross negligence of Lender.
6. Borrower hereby irrevocably constitutes and appoints Lender its true and lawful attorney-in-fact in Xxxxxxxx’s name or in Xxxxxx’s name, or otherwise, to, from and after the occurrence of an Event of Default by Borrower hereunder or under any of the other Loan Documents to enforce all of the rights of Borrower under the General Intangibles. It is hereby recognized that the power of attorney herein granted is coupled with an interest and shall not be revocable so long as any sums are outstanding under the loan evidenced by the Note.
7. Borrower shall deliver to Lender a true, correct and complete copy of each Contract promptly after it has been executed and delivered by the parties thereto.
8. Notwithstanding anything to the contrary contained herein, Lender shall have no right under this Assignment to assume any Contract or to exercise any rights, benefits or privileges of Borrower under any of the other General Intangibles until Borrower shall be in default under the terms of this Assignment or the terms of any of the other Loan Documents and such default shall not have been cured within any applicable grace or cure period.
9. Borrower shall promptly obtain and deliver to Lender consents to the terms of this Assignment, in forms reasonably acceptable to Lender, from such Contracting Parties as Lender may request from time to time.
10. This Assignment and the agreements and undertakings of Borrower hereunder shall be binding upon Xxxxxxxx, their successors and assigns and any subsequent owner of the Property, and shall inure to the benefit of Xxxxxx and its successors and assigns and any purchaser of any interest of Lender in the Note, the Security Instrument and the other Loan Documents.
11. Borrower covenants and agrees to make, execute and deliver all such further or additional instruments as may be necessary to satisfy the intents and purposes hereof and to perfect the assignment made hereby.
12. This Assignment shall be construed under and governed by the laws of the State in which the Property is located, except to the extent that 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. In any action brought under or arising out of this Assignment or the other Loan Documents, Borrower hereby consents to the jurisdiction of any competent court within the State in which the Property is located and consents to service of process by any means authorized by the law of the State in which the Property is located.
13. All notices, demands, requests or other communication to be sent by one party to any 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 Assignment 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 Assignment 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 notice was given as herein required shall be deemed to be receipt of the notice, demand or request sent. By giving to any 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.
14. In case of a conflict between any provision of this Assignment and any provision of the other Loan Documents, the provisions of the Note or the Security Instrument, if they shall be the conflicting other Loan Document, shall prevail and be controlling.
15. This Assignment may be executed in any number of counterparts, each of which shall be effective 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 Assignment may be detached from any counterpart of this Assignment without impairing the legal effect of any signatures thereon and may be attached to another counterpart of this Assignment identical in form hereto but having attached to it one or more additional signature pages.
16. Notwithstanding anything to the contrary contained in this Assignment, the liability of Borrower and its officers, directors, general partners, managers, members and principals for the indebtedness issued hereby and for the performance of the other agreements, covenants and obligations contained herein and in the Loan Documents shall be limited as set forth in Section 2.6 of the Note.
17. If any provision under this Assignment or the application thereof to any entity, person or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this Assignment and the application of the provisions hereof to other entities, persons or circumstances shall not be affected thereby and shall be enforced to the fullest extent permitted by law.
18. This Assignment may not be amended, modified or otherwise changed except by a written instrument duly executed by Xxxxxxxx and Xxxxxx.
[THE BALANCE OF THIS PAGE WAS LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, Xxxxxxxx has executed this Assignment as of the day and year first above written.
BORROWER:
APARTMENT REIT XXXXXX RANCH, LP,
a Texas limited partnership
| By: | Apartment REIT Xxxxxx Ranch GP, LLC, |
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| a Delaware limited liability company, |
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| its General Partner | ||||||||
| By: | NNN Apartment REIT Holdings, L.P., |
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| a Virginia limited partnership, |
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| its Manager | ||||||||
| By: | NNN Apartment REIT, Inc., |
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| a Maryland corporation, its General Partner |
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| By: /s/ Xxxxxx X. Xxxxxx |
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| |
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| Name: | Xxxxxx X. Xxxxxx | |||||||
Title: Secretary
