EXHIBIT 10.20
This Instrument Prepared by And
Upon Recordation Return to:
XXXXXX XXXXXX XXXXXXXX LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
NNN SOUTHPOINTE, LLC,
A DELAWARE LIMITED LIABILITY COMPANY, as assignor
(collectively, Borrower)
to
LASALLE BANK NATIONAL ASSOCIATION, as assignee
(Lender)
ASSIGNMENT
OF LEASES AND RENTS
Dated: August 18, 2006
Location: 0000 Xxxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx
0000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx
THIS ASSIGNMENT OF LEASES AND RENTS ("ASSIGNMENT") made as of the 18th day
of August, 2006, by NNN SOUTHPOINTE, LLC, a Delaware limited liability company
("BORROWER") to LASALLE BANK NATIONAL ASSOCIATION, a national banking
association, having an address at 000 X. XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attn: Real Estate Capital Markets, its successors and assigns,
as assignee ("LENDER").
RECITALS:
Borrower by its promissory note of even date herewith given to Lender is
indebted to Lender in the principal sum of Nine Million One Hundred Forty Six
Thousand and No/100ths Dollars ($9,146,000.00) in lawful money of the United
States of America (together with all extensions, renewals, modifications,
substitutions and amendments thereof, the "Note"), with interest from the date
thereof at the rates set forth in the Note, principal and interest to be payable
in accordance with the terms and conditions provided in the Note.
Borrower desires to secure the payment of the Debt (defined below) and the
performance of all of its obligations under the Note and the other Obligations
as defined in Recital B of the Security Instrument (defined below).
ARTICLE 1
ASSIGNMENT
Section 1.1 PROPERTY ASSIGNED. Borrower hereby absolutely and
unconditionally assigns and grants to Lender the following property, rights,
interests and estates, now owned, or hereafter acquired by Borrower:
(a) LEASES. All existing and future leases affecting the use,
enjoyment, or occupancy of all or any part of that certain lot or piece of
land, more particularly described in EXHIBIT A annexed hereto and made a
part hereof, together with the buildings, structures, fixtures, additions,
enlargements, extensions, modifications, repairs, replacements and
improvements now or hereafter located thereon (collectively, the
"PROPERTY") and the right, title and interest of Borrower, its successors
and assigns, therein and thereunder.
(b) OTHER LEASES AND AGREEMENTS. All other leases, subleases and other
agreements, whether or not in writing, affecting the use, enjoyment or
occupancy of the Property or any portion thereof now or hereafter made,
whether made before or after the filing by or against Borrower of any
petition for relief under 11 U.S.C. Section 101 et seq., as the same may be
amended from time to time (the "BANKRUPTCY CODE") together with any
extension, renewal or replacement of the same, this Assignment of other
present and future leases and present and future agreements being effective
without further or supplemental assignment. The leases described in
SUBSECTION 1.1(A) and the leases and other agreements described in this
SUBSECTION 1.1(B), together with all other present and future leases and
present and future agreements and any extension or renewal of the same are
collectively referred to as the "LEASES".
(c) RENTS. All rents, additional rents, revenues, income, issues and
profits arising from the Leases and renewals and replacements thereof and
any cash or security deposited in connection therewith and together with
all rents, revenues, income, issues and profits from the use, enjoyment and
occupancy of the Property, and all royalties, overriding royalties,
bonuses, delay rentals and any other amount of any kind or character
arising under any and all present and all future oil, gas and mining Leases
covering the Property or any part thereof, and all proceeds and other
amounts paid or owing to Borrower under or pursuant to any and all
contracts and bonds relating to the construction, erection or renovation of
the Property, whether paid or accruing before or after the filing by or
against Borrower of any petition for relief under the Bankruptcy Code
(collectively, the "RENTS").
(d) BANKRUPTCY CLAIMS. All of Borrower's claims and rights (the
"BANKRUPTCY CLAIMS") to the payment of damages arising from any rejection
by a lessee of any Lease under the Bankruptcy Code.
(e) LEASE GUARANTIES. All of Borrower's right, title and interest in
and claims under any and all lease guaranties, letters of credit and any
other credit support given by any guarantor in connection with any of the
Leases (individually, a "LEASE GUARANTOR", collectively, the "LEASE
GUARANTORS") to Borrower (individually, a "LEASE GUARANTY", collectively,
the "LEASE GUARANTIES").
(f) PROCEEDS. All proceeds from the sale or other disposition of the
Leases, the Rents, the Lease Guaranties and the Bankruptcy Claims
(collectively, "PROCEEDS").
(g) OTHER. All rights, powers, privileges, options and other benefits
of Borrower as lessor under the Leases and beneficiary under the Lease
Guaranties, including without limitation, the immediate and continuing
right to make claim for, receive, collect and receipt for, all Rents
payable or receivable under the Leases and all sums payable under the Lease
Guaranties or pursuant thereto (and to apply the same to the payment of the
Debt or the Other Obligations), and to do all other things which Borrower
or any lessor is or may become entitled to do under the Leases or the Lease
Guaranties (collectively, "OTHER RIGHTS").
(h) ENTRY. The right, at Lender's option, upon revocation of the
license granted herein, to enter upon the Property in person, by agent or
by court-appointed receiver, to collect the Rents.
(i) POWER OF ATTORNEY. Borrower's irrevocable power of attorney,
coupled with an interest, to take any and all of the actions set forth in
SECTION 3.1 of this Assignment and any or all other actions designated by
Lender for the proper management and preservation of the Property.
(j) OTHER RIGHTS AND AGREEMENTS. Any and all other rights of Borrower
in and to the items set forth in SUBSECTIONS (A) THROUGH (I) above, and all
amendments, modifications, replacements, renewals and substitutions
thereof.
Section 1.2 CONSIDERATION. This Assignment is made in consideration of that
certain loan made by Lender to Borrower evidenced by the Note and secured by
that certain Mortgage, Security Agreement and Fixture Filing, given by Borrower
to or for the benefit of Lender, dated the date hereof, covering the Property
and intended to be duly recorded (the "SECURITY INSTRUMENT"). The principal sum,
interest and all other sums due and payable under the Note, the Security
Instrument, this Assignment and the Other Security Documents (defined below) are
collectively referred to as the "DEBT". The documents other than this
Assignment, the Note or the Security Instrument now or hereafter executed by
Borrower and/or others and by or in favor of Lender which wholly or partially
secure or guarantee payment of the Debt are referred to herein as the "OTHER
SECURITY DOCUMENTS".
Section 1.3 TERMINATION OF ASSIGNMENT. Upon payment in full of the Debt,
this Assignment shall become null and void and shall be of no further force and
effect.
ARTICLE 2
TERMS OF ASSIGNMENT
Section 2.1 PRESENT ASSIGNMENT AND LICENSE BACK. The parties intend that
this Assignment grants a present, absolute, and unconditional assignment of the
Leases, Rents, Lease Guaranties and Bankruptcy Claims, Proceeds, and Other
Rights and shall, immediately upon execution, give Lender the right to collect
the Rents and other sums due under the Lease Guaranties and to apply them in
payment of the Debt. Such assignment and grant shall continue in effect until
the Debt is paid in full and all of the Other Obligations are fully satisfied.
Subject to the provisions set forth herein and provided there is no Default (as
defined below), Lender grants to Borrower a revocable license to enforce the
Leases and collect the Rents as they become due (excluding, however, any Lease
termination, cancellation or similar payments which Borrower agrees shall be
delivered to Lender and held in the TI and Leasing Reserve (as defined in the
Security Instrument)), and Borrower shall hold the same, in trust, to be applied
first to the payment of all impositions, levies, taxes, assessments and other
charges upon the Property, second to maintenance of insurance policies upon the
Property required hereby, third to the expenses of Property operations,
including maintenance and repairs required hereby, fourth to the payment of that
portion of the Indebtedness then due and payable, and fifth, the balance, if
any, to or as directed by Borrower. Borrower shall deliver such Rents to Lender
as are necessary for the payment of principal, interest and other sums payable
under the Loan Documents (as defined in the Security Instrument) as such sums
become due.
Borrower shall comply with and observe Borrower's obligations as landlord
under all Leases. Borrower will not lease any portion of the Property for use
which is not consistent with the permitted use of the Property, except with the
prior written approval of Lender. Borrower, at Lender's request, shall furnish
Lender with executed copies of all Leases, and all Leases and amendments thereto
hereafter entered into will be on a form of Lease previously approved by Lender.
All renewals of Leases and all proposed Leases for space in the Property shall
provide for rental rates comparable to existing local market rates and shall be
arms-length transactions.
Section 2.2 NOTICE TO LESSEES. Borrower hereby agrees to authorize and
direct the lessees named in the Leases or any other or future lessees or
occupants of the Property and all
Lease Guarantors to pay over to Lender or to such other party as Lender directs
all Rents and all sums due under any Lease Guaranties upon receipt from Lender
of written notice to the effect that Lender is then the holder of the Security
Instrument and that a Default exists, and to continue so to do until otherwise
notified by Lender.
Section 2.3 INCORPORATION BY REFERENCE. All representations, warranties,
covenants, conditions and agreements contained in the Security Instrument as
same may be modified, renewed, substituted or extended are hereby made a part of
this Assignment to the same extent and with the same force as if fully set forth
herein.
ARTICLE 3
REMEDIES
Section 3.1 REMEDIES OF LENDER. Upon and during the continuance of an Event
of Default (as defined in the Security Instrument) (sometimes referred to herein
as a "Default"), the license granted to Borrower in Section 2.1 of this
Assignment shall automatically be revoked, and Lender shall immediately be
entitled to possession of all Rents and sums due under any Lease Guaranties,
whether or not Lender enters upon or takes control of the Property. In addition,
Lender may, at its option, without waiving such Default, without notice and
without regard to the adequacy of the security for the Debt, either in person or
by agent, nominee or attorney, with or without bringing any action or
proceeding, or by a receiver appointed by a court (which such appointment of
receiver shall, upon application to a court of competent jurisdiction, be a
matter of strict right, without notice), dispossess Borrower and its agents and
servants from the Property, without liability for trespass, damages or otherwise
and exclude Borrower and its agents wholly therefrom, and take possession of the
Property and all books, records and accounts relating thereto and have, hold,
manage, lease and operate the Property on such terms and for such period of time
as Lender may deem proper and either with or without taking possession of the
Property in its own name, demand, xxx for or otherwise collect and receive all
Rents and sums due under all Lease Guaranties, including those past due and
unpaid with full power to make from time to time all alterations, renovations,
repairs or replacements thereto or thereof as may seem proper to Lender and may
apply the Rents and sums received pursuant to any Lease Guaranties to the
payment of the following in such order and proportion as Lender in its sole
discretion may determine, any law, custom or use to the contrary
notwithstanding: (a) all expenses of managing and securing the Property,
including, without being limited thereto, the salaries, fees and wages of a
managing agent and such other employees or agents as Lender may deem necessary
or desirable and all expenses of operating and maintaining the Property,
including, without being limited thereto, all taxes, charges, claims,
assessments, water charges, sewer rents and any other liens, and premiums for
all insurance which Lender may deem necessary or desirable, and the cost of all
alterations, renovations, repairs or replacements, and all expenses incident to
taking and retaining possession of the Property; (b) payment of all expenses for
normal maintenance of the Property, and (c) the Debt, together with all costs
and reasonable attorneys' fees. In addition, upon the occurrence of a Default,
Lender, at its option, may (1) complete any construction on the Property in such
manner and form as Lender deems advisable, (2) exercise all rights and powers of
Borrower, including, without limitation, the right to negotiate, execute,
cancel, enforce or modify Leases, obtain and evict tenants, and demand, xxx for,
collect and receive all Rents from the Property and all sums due under any Lease
Guaranties, (3) either require Borrower to pay monthly in advance to Lender or
any receiver appointed to collect the Rents, the fair and reasonable rental
value for the use and occupancy of such part of the Property as may be in
possession of Borrower or (4) require Borrower to vacate and surrender
possession of the Property to Lender or to such receiver and, in default
thereof, Borrower may be evicted by summary proceedings or otherwise.
Section 3.2 OTHER REMEDIES. Nothing contained in this Assignment and no act
done or omitted by Lender pursuant to the power and rights granted to Lender
hereunder shall be deemed to be a waiver by Lender of its rights and remedies
under the Note, the Security Instrument, or the Other Security Documents and
this Assignment is made and accepted without prejudice to any of the rights and
remedies possessed by Lender under the terms thereof. The right of Lender to
collect the Debt and to enforce any other security therefor held by it may be
exercised by Lender either prior to, simultaneously with, or subsequent to any
action taken by it hereunder. Borrower hereby absolutely, unconditionally and
irrevocably waives any and all rights to assert any setoff, counterclaim or
crossclaim of any nature whatsoever with respect to the obligations of Borrower
under this Assignment, the Note, the Security Instrument, the Other Security
Documents or otherwise with respect to the loan secured hereby in any action or
proceeding brought by Lender to collect same, or any portion thereof, or to
enforce and realize upon the lien and security interest created by this
Assignment, the Note, the Security Instrument, or any of the Other Security
Documents (provided, however, that the foregoing shall not be deemed a waiver of
Borrower's right to assert any compulsory counterclaim if such counterclaim is
compelled under local law or rule of procedure, nor shall the foregoing be
deemed a waiver of Borrower's right to assert any claim which would constitute a
defense, setoff, counterclaim or crossclaim of any nature whatsoever against
Lender in any separate action or proceeding).
Section 3.3 OTHER SECURITY. Subject to PARAGRAPH 3 of the Note, Lender may
take or release other security for the payment of the Debt, may release any
party primarily or secondarily liable therefor and may apply any other security
held by it to the reduction or satisfaction of the Debt without prejudice to any
of its rights under this Assignment.
Section 3.4 NON-WAIVER. The exercise by Lender of the option granted it in
SECTION 3.1 of this Assignment and the collection of the Rents and sums due
under the Lease Guaranties and the application thereof as herein provided shall
not be considered a waiver of any default by Borrower under the Note, the
Security Instrument, the Leases, this Assignment or the Other Security
Documents. The failure of Lender to insist upon strict performance of any term
hereof shall not be deemed to be a waiver of any term of this Assignment.
Borrower shall not be relieved of Borrower's obligations hereunder by reason of
(a) the failure of Lender to comply with any request of Borrower or any other
party to take any action to enforce any of the provisions hereof or of the
Security Instrument, the Note or the Other Security Documents, (b) the release
regardless of consideration, of the whole or any part of the Property, or (c)
any agreement or stipulation by Lender extending the time of payment or
otherwise modifying or supplementing the terms of this Assignment, the Note, the
Security Instrument or the Other Security Documents. Lender may resort for the
payment of the Debt to any other security held by Lender in such order and
manner as Lender, in its discretion, may elect. Lender may take any action to
recover the Debt, or any portion thereof, or to enforce any covenant hereof
without prejudice to the right of Lender thereafter to enforce its rights under
this Assignment. The rights of Lender under this Assignment shall be separate,
distinct and cumulative and none shall be
given effect to the exclusion of the others. No act of Lender shall be construed
as an election to proceed under any one provision herein to the exclusion of any
other provision.
Section 3.5 BANKRUPTCY.
(a) Upon or during the continuation of a Default, Lender shall have
the right to proceed in its own name or in the name of Borrower in respect
of any claim, suit, action or proceeding relating to the rejection of any
Lease, including, without limitation, the right to file and prosecute, to
the exclusion of Borrower, any proofs of claim, complaints, motions,
applications, notices and other documents, in any case in respect of the
lessee under such Lease under the Bankruptcy Code.
(b) If there shall be filed by or against Borrower a petition under
the Bankruptcy Code, and Borrower, as lessor under any Lease, shall
determine to reject such Lease pursuant to Section 365(a) of the Bankruptcy
Code, then Borrower shall give Lender not less than ten (10) days' prior
notice of the date on which Borrower shall apply to the bankruptcy court
for authority to reject the Lease. Lender shall have the right, but not the
obligation, to serve upon Borrower within such ten (10) day period a notice
stating that (i) Lender demands that Borrower assume and assign the Lease
to Lender pursuant to Section 365 of the Bankruptcy Code and (ii) Lender
covenants to cure or provide adequate assurance of future performance under
the Lease. If Lender serves upon Borrower the notice described in the
preceding sentence, Borrower shall not seek to reject the Lease and shall
comply with the demand provided for in clause (i) of the preceding sentence
within thirty (30) days after the notice shall have been given, subject to
the performance by Lender of the covenant provided for in clause (ii) of
the preceding sentence.
Section 3.6 SECURITY DEPOSITS. All security deposits of lessees, whether
held in cash or any other form, shall be treated by Borrower as trust funds,
shall not be commingled with any other funds of Borrower and, if cash, shall be
deposited by Borrower in one or more segregated accounts at such commercial or
savings bank or banks as is reasonably satisfactory to Lender. Any bond or other
instrument which Borrower is permitted to hold in lieu of cash security deposits
under applicable legal requirements (a) shall be maintained in full force and
effect unless replaced by cash deposits as hereinabove described, (b) shall be
issued by an entity reasonably satisfactory to Lender, (c) shall, if permitted
pursuant to legal requirements, name Lender as payee or beneficiary thereunder
(or at Lender's option, subject to applicable Borrower requirements, be fully
assignable to Lender), and (d) shall, in all respects, comply with applicable
legal requirements and otherwise be reasonably satisfactory to Lender. Borrower
shall, upon request, provide Lender with evidence reasonably satisfactory to
Lender of Borrower's compliance with the foregoing. Following the occurrence and
during the continuance of any Default, Borrower shall, upon Lender's request, if
permitted by applicable legal requirements, turn over to Lender the security
deposits (and any interest theretofore earned thereon) with respect to all or
any portion of the Property, to be held by Lender subject to the terms of the
Leases.
ARTICLE 4
NO LIABILITY, FURTHER ASSURANCES
Section 4.1 NO LIABILITY OF LENDER. This Assignment shall not be construed
to bind Lender to the performance of any of the covenants, conditions or
provisions contained in any Lease or Lease Guaranty or otherwise impose any
obligation upon Lender. Lender shall not be liable for any loss sustained by
Borrower resulting from Lender's failure to let the Property after a Default or
from any other act or omission of Lender in managing the Property after a
Default unless such loss is caused by the gross negligence, willful misconduct
and bad faith of Lender. Lender shall not be obligated to perform or discharge
any obligation, duty or liability under the Leases or any Lease Guaranties or
under or by reason of this Assignment and Borrower shall, and hereby agrees, to
indemnify, defend and hold Lender harmless from, any and all liability, loss or
damage which may or might be incurred under the Leases, any Lease Guaranties
under or by reason of this Assignment and from any and all claims and demands
whatsoever, including the defense of any such claims or demands which may be
asserted against Lender by reason of any alleged obligations and undertakings on
its part to perform or discharge any of the terms, covenants or agreements
contained in the Leases or any Lease Guaranties. Should Lender incur any such
liability, the amount thereof, including costs, expenses and reasonable
attorneys' fees, shall be secured by this Assignment and by the Security
Instrument and the Other Security Documents and Borrower shall reimburse Lender
therefor immediately upon demand and upon the failure of Borrower so to do
Lender may, at its option, declare all sums secured by this Assignment and by
the Security Instrument and the Other Security Documents immediately due and
payable. This Assignment shall not operate to place any obligation or liability
for the control, care, management or repair of the Property upon Lender, nor for
the carrying out of any of the terms and conditions of the Leases or any Lease
Guaranties; nor shall it operate to make Lender responsible or liable for any
waste committed on the Property by the tenants or any other parties, or for any
dangerous or defective condition of the Property, including without limitation
the presence of any Hazardous Substances (as defined in the Security
Instrument), or for any negligence in the management, upkeep, repair or control
of the Property resulting in loss or injury or death to any tenant, licensee,
employee or stranger.
Section 4.2 NO MORTGAGEE IN POSSESSION. Nothing herein contained shall be
construed to consider Lender a mortgagee in possession in the absence of the
taking of actual possession of the Property by Lender. In the exercise of the
powers herein granted Lender, no liability shall be asserted or enforced against
Lender, all such liability being expressly waived and released by Borrower.
Section 4.3 FURTHER ASSURANCES. Borrower will, at the cost of Borrower, and
without expense to Lender, execute, acknowledge and deliver all and every such
further acts, conveyances, assignment, notices of assignments, transfers and
assurances as Lender shall, from time to time, require for the better assuring,
conveying, assigning, transferring and confirming unto Lender the property and
rights hereby assigned or intended now or hereafter so to be, or which Borrower
may be or may hereafter become bound to convey or assign to Lender, or for
carrying out the intention or facilitating the performance of the terms of this
Assignment or for filing, registering or recording this Assignment and, on
demand, will execute and deliver and hereby authorizes Lender to execute in the
name of Borrower to the extent Lender may lawfully
do so, one or more financing statements, chattel mortgages or comparable
security instruments, to evidence more effectively the lien and security
interest hereof in and upon the Leases.
ARTICLE 5
MISCELLANEOUS PROVISIONS
Section 5.1 CONFLICT OF TERMS. In case of any conflict between the terms of
this Assignment and the terms of the Security Instrument, the terms of the
Security Instrument shall prevail.
Section 5.2 NO ORAL CHANGE. This Assignment and any provisions hereof may
not be modified, amended, waived, extended, changed, discharged or terminated
orally, or by any act or failure to act on the part of Borrower or Lender, but
only by an agreement in writing signed by the party against whom the enforcement
of any modification, amendment, waiver, extension, change, discharge or
termination is sought.
Section 5.3 CERTAIN DEFINITIONS. Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein, words used in
this Assignment may be used interchangeably in singular or plural form and the
word "Borrower" shall mean "each Borrower and any subsequent owner or owners of
the Property or any part thereof or interest therein", the word "Lender" shall
mean "Lender and any subsequent holder of the Note," the word "Note" shall mean
"the Note and any other evidence of indebtedness secured by the Security
Instrument," the word "person" shall include an individual, corporation,
partnership, limited liability company, trust, unincorporated association,
government, governmental authority, and any other entity, the word "Property"
shall include any portion of the Property and any interest therein, the phrases
"attorneys' fees" and "counsel fees" shall include any and all reasonable
attorneys and paralegal fees and disbursements, and the word "Debt" shall mean
the principal balance of the Note with interest thereon as provided in the Note
and the Security Instrument and all other sums due pursuant to the Note, the
Security Instrument, this Assignment and the Other Security Documents; whenever
the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural and vice versa.
Section 5.4 AUTHORITY. Borrower represents and warrants that it has full
power and authority to execute and deliver this Assignment and the execution and
delivery of this Assignment has been duly authorized and does not conflict with
or constitute a default under any law, judicial order or other agreement
affecting Borrower or the Property.
Section 5.5 INAPPLICABLE PROVISIONS. If any term, covenant or condition of
this Assignment is held to be invalid, illegal or unenforceable in any respect,
this Assignment shall be construed without such provision.
Section 5.6 COUNTERPARTS. This Assignment may be executed in several
counterparts, each of which counterparts shall be deemed an original instrument
and all of which together shall constitute a single Assignment.
Section 5.7 CHOICE OF LAW. THIS ASSIGNMENT SHALL BE GOVERNED, CONSTRUED,
APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES, PROVIDED, HOWEVER, THAT TO THE
EXTENT THE MANDATORY PROVISIONS OF THE LAWS OF ANOTHER JURISDICTION RELATING TO
(I) THE PERFECTION OR THE EFFECT OF PERFECTION OR NON-PERFECTION OF THE SECURITY
INTERESTS IN ANY OF THE PROPERTY, (II) THE LIEN, ENCUMBRANCE OR OTHER INTEREST
IN THE PROPERTY GRANTED OR CONVEYED BY THIS ASSIGNMENT, OR (III) THE
AVAILABILITY OF AND PROCEDURES RELATING TO ANY REMEDY HEREUNDER OR RELATED TO
THIS ASSIGNMENT ARE REQUIRED TO BE GOVERNED BY SUCH OTHER JURISDICTION'S LAWS,
SUCH OTHER LAWS SHALL BE DEEMED TO GOVERN AND CONTROL.
Section 5.8 NOTICES. All notices required or permitted hereunder shall be
given as provided in the Security Instrument.
Section 5.9 WAIVER OF TRIAL BY JURY. BORROWER HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR
INDIRECTLY TO THE LOAN EVIDENCED BY THE NOTE, THE APPLICATION FOR THE LOAN
EVIDENCED BY THE NOTE, THIS ASSIGNMENT, THE NOTE, THE SECURITY INSTRUMENT OR THE
OTHER SECURITY DOCUMENTS OR ANY ACTS OR OMISSIONS OF LENDER, ITS OFFICERS,
EMPLOYEES, DIRECTORS OR AGENTS IN CONNECTION THEREWITH. THIS WAIVER IS
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY BORROWER AND BORROWER
ACKNOWLEDGES THAT NO PERSON ACTING ON BEHALF OF LENDER HAS MADE ANY
REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO
MODIFY OR NULLIFY ITS EFFECT. BORROWER FURTHER ACKNOWLEDGES THAT IT HAS BEEN
REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN CONNECTION WITH
THIS ASSIGNMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL,
SELECTED OF ITS OWN FREE WILL, AND IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS
WAIVER WITH COUNSEL.
Section 5.10 LIABILITY. If Borrower consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several. This Assignment shall be binding upon and inure to the benefit of
Borrower and Lender and their respective successors and assigns forever.
Section 5.11 HEADINGS, ETC. The headings and captions of various paragraphs
of this Assignment are for convenience of reference only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
Section 5.12 NUMBER AND GENDER. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice versa.
Section 5.13 COSTS AND EXPENSES OF BORROWER. Wherever pursuant to this
Assignment it is provided that Borrower pay any costs and expenses, such costs
and expenses shall include, but not be limited to, reasonable legal fees and
disbursements of Lender, whether with respect to retained firms, the
reimbursement of the reasonable expenses for in-house staff or otherwise.
Section 5.14 SUCCESSORS AND ASSIGNS. Borrower may not assign its rights
under this Assignment. Borrower hereby acknowledges and agrees that Lender may
assign this Assignment without Borrower's consent. Subject to the foregoing,
this Assignment shall be binding upon, and shall inure to the benefit of,
Borrower and Lender and their respective successors and assigns and any
subsequent owner of the Property.
[THE REMAINDER OF THIS PAGE IS
INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Borrower has executed this instrument as of the day and
year first above written.
BORROWER:
NNN Southpointe, LLC, a Delaware limited
liability company
By: Triple Net Properties, LLC, a
Virginia limited liability company,
its manager
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Its: President
B-1
STATE OF CALIFORNIA )
)SS.
COUNTY OF ORANGE )
On August 9, 2006, before me, X. Xx, Notary Public
(Name, Title of Officer,e.g., "Xxxx Xxx,
Notary Public")
personally appeared Xxxxx Xxxxxx
Name(s) of Signer(s))
[X] personally known to me - OR -
[ ] proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity/ies, and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which person(s) acted,
executed the instrument.
Witness my hand and official seal.
/s/ X. Xx
----------------------------------------
(Signature of Notary)
(SEAL)
My Commission expires:
September 30, 2009
B-2
