This ASSIGNMENT AND ASSUMPTION OF PURCHASE AGREEMENT (this Assignment) is entered into between Elco Landmark Residential Holdings LLC, a Delaware limited liability company (Assignor), and Landmark Apartment Trust of America Holdings, LP, a Virginia limited partnership (Assignee), as of July 1, 2013.
A. Pursuant to the terms of that certain Membership Interest Purchase Agreement, dated as of November 26, 2012, by and among Assignor, Apartment Income and Growth Fund I, LLC (Apartment Fund I) and ADMG Partners LP, a Florida limited partnership (ADMG Partners), as amended by the First Amendment to Membership Interest Purchase Agreement, Second Amendment to Membership Interest Purchase Agreement, Third Amendment to Membership Interest Purchase Agreement and Fourth Amendment to Membership Interest Purchase Agreement (as so amended to date, collectively, the Purchase Agreement), Assignor agreed to purchase, and Apartment Fund I agreed to sell the Membership Interests (as such term is defined in the Purchase Agreement).
B. Assignor wishes to assign to Assignee, and Assignee wishes to assume from Assignor, all of Assignors right, title and interest, in, to and under the Purchase Agreement in exchange for cash and other valuable consideration; provided, however, Assignor shall retain its interest in and to and all deposits under the Purchase Agreement (the Deposit).
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants, agreements and undertakings of the parties set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties agree as follows:
1. Recitals. The above recitals are incorporated herein by reference.
2. Representations. Assignor represents and warrants to Assignee that (i) Assignor is the owner of all of the right, title and interests of Buyer (as defined in the Purchase Agreement) in, to and under the Purchase Agreement and the Deposit (collectively, the Buyers Interest) and has not assigned or encumbered the Buyers Interest except pursuant to this Assignment , (ii) the Purchase Agreement is in full force and effect, (iii) Assignor is not in default under any provision of the Purchase Agreement, (iv) to the best of Assignors knowledge, there is no default by the Seller (as defined in the Purchase Agreement) under the Purchase Agreement, (v) Assignor will execute such further assurances with respect to the Purchase Agreement as may be reasonably requested by Assignee, and (vi) the Purchase Agreement has not been amended or modified except as described herein.
3. Assignment and Assumption.
(a) Subject to section 3(b) below, Assignor hereby assigns all of its right, title and interest in, to and under the Purchase Agreement to Assignee as of the date hereof (the Contract Rights Assignment). Assignor shall have no further rights whatsoever under the Purchase Agreement, except as provided below as to the Deposit. Assignee hereby accepts the foregoing assignment as of the date hereof, and assumes and agrees to perform all duties and obligations of Assignor under the Purchase Agreement which arise from and after the date hereof, provided that neither Assignor nor Assignee shall have any liability whatsoever to each other in the event that Assignee fails or is unable to acquire the Property.
(b) Notwithstanding the foregoing Contract Rights Assignments, Assignor hereby retains all right, title and interest in and to the Deposit. In the event that the Deposit, or any portion thereof, is either returned to the Buyer or is credited to the purchase price under the Purchase Agreement, Assignee shall pay to Assignor, in the case of such return or credit, in cash, an amount equal to the Deposit or such amount thereof as has been returned and/or credited to the purchase price.
4. Consideration. Assignee will pay to Assignor Ten Dollars ($10.00) in exchange for the Contract Rights Assignment.
5. Indemnification. Assignor agrees to defend and hold Assignee free and harmless from any and all losses, liabilities, obligations, debts and expenses first arising under or with respect to the Purchase Agreement prior to the date hereof. Assignee agrees to defend and hold Assignor free and harmless from any and all losses, liabilities, obligations, debts and expenses first arising under or with respect to the Purchase Agreement on or after the date hereof.
6. Successors and Assigns. This Assignment shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns.
5. Counterparts. This Assignment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument. Each counterpart may be delivered by facsimile transmission. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto.
6. Governing Law. This Assignment shall be governed by the laws of the State of Delaware.
[Remainder of page intentionally left blank]
This Assignment and Assumption of Purchase Agreement is executed as an instrument under seal of the date set forth above.
|Elco Landmark Residential Holdings LLC,|
a Delaware limited liability company
|By:||JLCo, LLC, its manager|
|Landmark Apartment Trust of America, LP,|
a Virginia limited partnership
|By:||Landmark Apartment Trust of America, Inc.,|
|its general partner|
|Name:||Stanley J. Olander, Jr.|
|Title:||Chief Executive Officer|
Signature to Contract Assignment from ELRH to LATA