SUBSTITUTION OF INDEMNITOR
AND ASSUMPTION OF OBLIGATIONS OF INDEMNITOR
THIS SUBSTITUTION OF INDEMNITOR AND ASSUMPTION OF OBLIGATIONS OF
INDEMNITOR (this "Substitution Agreement") is made and entered into as of
July 2, 2002, by and among Cedar Income Fund Partnership, L.P. a Delaware
limited partnership, Cedar Income Fund, Ltd. a Maryland corporation
(individually or collectively, if more than one, the "Assuming Principal"),
Loyal Plaza Associates, L.P. a Delaware limited partnership (the "Assuming
Borrower"), Glimcher Properties Limited Partnership ("Glimcher"), Glimcher Loyal
Plaza Tenant, L.P. ("Tenant") and Loyal Plaza Venture, L.P. a Delaware limited
partnership (the "Original Borrower"), and LASALLE BANK NATIONAL ASSOCIATION, as
Trustee for the Registered Holders of LB-UBS Commercial Mortgage Trust 2001-C3,
Commercial Mortgage Pass-Through Certificates, Series 2001-C3 (the "Lender").
RECITALS
A. Original Borrower is indebted to the Lender with respect to a loan
(the "Loan") in the original principal amount of $14,000,000.00
B. The Loan is evidenced by that certain Promissory Note dated May 31,
2001 (the "Note"), made by the Original Borrower, in the original principal
amount of the Loan, payable to the order of Xxxxxx Brothers Bank, FSB (the
"Original Lender").
C. The Note is secured by inter alia that certain Open-End Mortgage and
Security Agreement dated as the date as the Note (the "Mortgage"), executed by
the Original Borrower and Tenant to the Original Lender.
D. The Note and the Mortgage, the Indemnity (as defined below), the
Environmental Indemnity (as defined below), together with any other instruments,
certificates, assignments, financing statements, opinions, documents and
instruments of writing evidencing, guaranteeing, securing or pertaining to the
Loan, are sometimes hereinafter collectively referred to as the "Loan
Documents."
E. In connection with the execution and delivery of the Loan Documents,
Glimcher and Tenant represented to the Original Lender that Glimcher and Tenant
are affiliates of the Original Borrower and that Glimcher and Tenant would
derive substantial economic benefit from the Original Lender making the Loan to
the Original Borrower, and Glimcher and Tenant undertook certain obligations and
agreements and assumed certain liabilities as the "Indemnitor", "Guarantor"
and/or "Principal" (collectively referred to herein as "Indemnitor") under that
certain Holdback and Indemnity Agreement dated as of the same date as the Note
(the "Indemnity"), by Glimcher, Tenant (in such capacity, Glimcher and Tenant
are herein referred to as the "Holdback Principals") and Original Borrower in
favor of the Original Lender, the Original Borrower being jointly and severally
liable with the Holdback Principals for the performance of the obligations and
agreements of the Indemnitors set forth in the Indemnity.
F. In connection with the execution and delivery of the Loan Documents,
Tenant represented to the Original Lender that Tenant is an affiliate of the
Original Borrower and that Tenant would derive substantial economic benefit from
the Original Lender making the Loan to the Original Borrower, and Tenant
undertook certain obligations and agreements and assumed certain liabilities
under, pursuant to, and in accordance with the Loan Documents, including,
without limitation, those obligations and agreements of the "Principal",
"Indemnitor" and/or "Guarantor" (collectively referred to herein as "Principal")
set forth in that Environmental Indemnity Agreement dated as of the same date as
the Note (the "Environmental Indemnity"), by the Tenant (in such capacity,
Tenant is herein referred to as the "Environmental Principal") and the Original
Borrower in favor of the Original Lender, the Original Borrower being jointly
and severally liable with the Environmental Principal for the performance of the
obligations and agreements of the Principals set forth in the Environmental
Indemnity.
G. The Holdback Principals and Original Borrower, by executing this
Substitution Agreement, hereby acknowledge, ratify and re-affirm each obligation
to pay and perform each and all of the obligations, agreements and liabilities
of the Indemnitor under, pursuant to, and in accordance with the Indemnity, and
the Environmental Principal and Original Borrower, by their execution hereof,
hereby acknowledge, ratify and re-affirm their obligation to pay and perform
each and all of the obligations, agreements and liabilities of a Principal
pursuant to, and in accordance with the Environmental Indemnity, as fully and
completely as if they were re-executing and re-delivering each of the Indemnity,
the Environmental Indemnity and the other Loan Documents as of the date of this
Substitution Agreement.
H. The Original Lender has assigned, sold and transferred all of its
right, title and interest in and to the Note, the Mortgage and the other Loan
Documents to the Lender and the Lender is the current holder of all of the
Original Lender's interest in the Loan and Loan Documents.
I. Pursuant to that certain purchase and sale agreement (as amended,
the "Sales Agreement"), by and between Original Borrower and Cedar Income Fund
Partnership, whose right, title and interest in the Sales Agreement was
subsequently assigned to Assuming Borrower, the Original Borrower has agreed to
sell, and Assuming Borrower has agreed to purchase, that certain real property
more particularly described on Exhibit A attached to the Mortgage, together with
all other property encumbered by the Mortgage, and the other Loan Documents
(collectively, the "Property").
J. The Original Borrower and the Assuming Borrower have requested that
the Lender consent to the sale, conveyance, assignment and transfer of the
Property by the Original Borrower to the Assuming Borrower, subject to the
Mortgage and the other Loan Documents, and subject to the assumption by the
Assuming Borrower of the Loan and the obligations of the Original Borrower under
the Loan Documents (the "Sale and Assumption"). The Lender has required, among
other things, as a condition of its consent to the Sale and Assumption, that the
Assuming Principal, effective from and after the date hereof, become obligated
and responsible for the performance of each and all of the obligations and
agreements of the Holdback Principals and Environmental Principal under the Loan
Documents, and that the Assuming Principal, effective from and after the date
hereof, become liable and responsible for each and all of the liabilities of the
Holdback Principals and Environmental Principal, as fully and completely as if
the Assuming Principal had originally executed and delivered the Loan Documents
as the Principal or the Indemnitor thereunder, as the case may be, including,
without limitation, all of those obligations, agreements and liabilities which
would have, but for the provisions of this Substitution Agreement, been the
obligations, agreements and liabilities of the Holdback Principals and
Environmental Principal, without regard to when such obligations, agreements and
liabilities arise or accrue, and without regard to the Principal or the
Indemnitor, as the case may be, then responsible or liable therefor. In
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addition, the Lender has required, as a condition of its consent to the Sale and
Assumption, that the Assuming Borrower, effective from and after the date
hereof, become obligated and responsible for the performance of each and all of
the obligations and agreements of the Original Borrower, as a Principal under
the Environmental Indemnity and an Indemnitor under the Indemnity, and that the
Assuming Borrower, effective from and after the date hereof, become liable and
responsible for each and all of the liabilities of the Original Borrower
thereunder, as fully and completely as if the Assuming Borrower had originally
executed and delivered the Environmental Indemnity and Indemnity as the
Borrower, the Indemnitor or Principal thereunder, including, without limitation,
all of those obligations, agreements and liabilities which would have, but for
the provisions of this Substitution Agreement, been the obligations, agreements
and liabilities of the Original Borrower, without regard to when such
obligations, agreements and liabilities arise or accrue, and without regard to
the Borrower, the Indemnitor or Principal then responsible or liable therefor.
K. Holdback Principals and Environmental Principal have requested, in
connection with the Assuming Principal becoming obligated and responsible for
the performance of each and all of the obligations and agreements of the
Principal or the Indemnitor under the Loan and the Loan Documents, and in
connection with the Assuming Principal becoming liable and responsible for each
and all of the liabilities of the Principal or the Indemnitor thereunder, that
the Holdback Principals and Environmental Principal be released, from and after
the date of this Substitution Agreement, from the obligations, agreements and
liabilities of the Principal or the Indemnitor, as the case may be, under the
Loan Documents.
L. The Lender has required, among other things, as a condition of its
consent to such requested release of the Holdback Principals and Environmental
Principal, that the Assuming Principal be substituted, in each and every
respect, for the Holdback Principals and Environmental Principal pursuant to the
Loan Documents, in lieu of and in place of the Holdback Principals and
Environmental Principal with respect to each and every reference to the
Principal or the Indemnitor in the Loan Documents, including, without
limitation, in connection with all of those obligations, agreements and
liabilities which would have, but for the provisions of this Substitution
Agreement, been the obligations, agreements and liabilities of the Holdback
Principals and Environmental Principal, without regard to when such obligations,
agreements and liabilities arise, accrue, or have arisen or accrued, and without
regard to the Principal or the Indemnitor, as the case may be, then responsible
or liable therefor.
M. The Lender, the Holdback Principals, the Environmental Principal,
the Original Borrower, the Assuming Principal and the Assuming Borrower, by
their respective executions hereof, evidence their consent to (i) the
assumption, effective from and after the date hereof, by the Assuming Principal
of each and all of the obligations, agreements and liabilities of the Principal
and the Indemnitor, as the case may be, under the Loan Documents, (ii) the
assumption, effective from and after the date hereof, by the Assuming Borrower
of each and all of the obligations, agreements and liabilities of the Borrower
and the Principal under the Environmental Indemnity and the Borrower and
Indemnitor under the Indemnity, (iii) the release of the Holdback Principals and
Environmental Principal and the Original Borrower, from the obligation to
perform and be liable for each and all of the obligations, agreements and
liabilities of the Principal or the Indemnitor, as the case may be, which accrue
or arise from and after the date hereof, under the Loan Documents, including
without limitation, the Indemnity and the Environmental Indemnity and (iv) the
substitution, in each and every respect, of the Assuming Principal for the
Holdback Principals and Environmental Principal under the Loan Documents, and in
addition of the Assuming Borrower for the Original Borrower under the Indemnity
and the Environmental Indemnity, all of the foregoing being upon the terms and
conditions hereinafter set forth.
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STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
1. Recitals. The foregoing recitals are incorporated herein by this
reference as if fully set forth at this point in the text of this Substitution
Agreement.
2. Acknowledgment and Agreement of Assuming Principal. Assuming
Principal hereby represents and warrants to the Lender that Assuming Principal
is an affiliate of the Assuming Borrower and Assuming Principal will derive
substantial economic benefit from the Lender's agreement to consent to the Sale
and Assumption. The Assuming Principal hereby acknowledges and agrees that the
Assuming Principal has executed this Substitution Agreement and agreed to be
bound by the covenants and agreements set forth herein in order to induce the
Lender to consent to the Sale and Assumption. Accordingly, the Assuming
Principal acknowledges that the Lender would not consent to the Sale and
Assumption without the execution and delivery by the Assuming Principal of this
Substitution Agreement. The Assuming Principal intentionally and unconditionally
enters into the covenants and agreements set forth herein and understands that,
in reliance upon and in consideration of such covenants and agreements, the
Lender has consented to the Sale and Assumption and would not have otherwise
done so but for such reliance.
The Lender hereby acknowledges that it has the same rights and
obligations under the Indemnity as the Original Lender.
3. Acknowledgment and Agreement of Assuming Borrower. The Assuming
Borrower hereby represents and warrants to the Lender that it has executed this
Substitution Agreement, and agreed to be bound by the covenants and agreements
relating to the Assuming Borrower set forth herein, in order to induce the
Lender to consent to the Sale and Assumption. Accordingly, the Assuming Borrower
acknowledges that the Lender would not consent to the Sale and Assumption
without the execution and delivery by the Assuming Borrower of this Substitution
Agreement. The Assuming Borrower intentionally and unconditionally enters into
the covenants and agreements relating to the Assuming Borrower set forth herein
and understands that, in reliance upon and in consideration of such covenants
and agreements, the Lender has consented to the Sale and Assumption and would
not have otherwise done so but for such reliance.
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4. Joint and Several Liability. With respect to the Indemnity and the
Environmental Indemnity, the liability of Assuming Principal shall be joint and
several with that of the Assuming Borrower.
5. Transfer Fee and Other Fees. The effectiveness and validity of this
Substitution Agreement, and the consent of the Lender to the Sale and
Assumption, is expressly conditioned upon the Lender's receipt, in accordance
with the provisions of the Loan Documents, of the non-refundable application
fee, the transfer fee and any and all other fees, payments or reimbursements
payable to the Lender in connection with the transactions set forth herein.
6. Assumption of Obligations, Agreements and Liabilities of the
Principal and the Indemnitor. From and after the date of this Substitution
Agreement, the Assuming Principal shall be obligated and responsible for the
performance of each and all of the obligations and agreements of the Indemnitor
and Principal under the Loan and the Loan Documents, including, without
limitation, the Indemnity and the Environmental Indemnity, and the Assuming
Principal shall be liable and responsible for each and all of the liabilities of
the Indemnitor and Principal thereunder, as fully and completely as if the
Assuming Principal had originally executed and delivered the Loan Documents as
the Indemnitor and Principal thereunder, including, without limitation, all of
those obligations, agreements and liabilities which would have, but for the
provisions of this Substitution Agreement, been the obligations, agreements and
liabilities of the Holdback Principals and Environmental Principal, without
regard to when such obligations, agreements and liabilities arise, accrue or
have arisen or accrued, and without regard to the Indemnitor or Principal then
responsible or liable therefor at the time of such accrual. From and after the
date hereof, the Assuming Principal further agrees to abide by and be bound by
all of the terms of the Loan Documents having reference to the Indemnitor and
Principal, all as though each of the Loan Documents had been made, executed, and
delivered by the Assuming Principal as the Indemnitor and Principal. From and
after the date hereof, the Assuming Principal hereby agrees to pay, perform, and
discharge each and every obligation of payment and performance of the Indemnitor
and Principal under, pursuant to and as set forth in the Loan Documents at the
time, in the manner and otherwise in all respects as therein provided.
7. Assumption of Obligations, Agreements and Liabilities of the
Borrower, Indemnitor and Principal under the Environmental Indemnity and
Indemnity. From and after the date of this Substitution Agreement, the Assuming
Borrower shall be obligated and responsible for the performance of each and all
of the obligations and agreements of the Original Borrower, Indemnitor and
Principal under the Indemnity and the Environmental Indemnity, and the Assuming
Borrower shall be liable and responsible for each and all of the liabilities of
the Borrower, Indemnitor and Principal thereunder, as fully and completely as if
the Assuming Borrower had originally executed and delivered the Indemnity and
the Environmental Indemnity as the Borrower, Indemnitor and Principal
thereunder, including, without limitation, all of those obligations, agreements
and liabilities which would have, but for the provisions of this Substitution
Agreement, been the obligations, agreements and liabilities of the Original
Borrower, without regard to when such obligations, agreements and liabilities
arise, accrue or have arisen or accrued, and without regard to the Borrower,
Indemnitor and Principal then responsible or liable therefor at the time of such
accrual. From and after the date hereof, the Assuming Borrower further agrees to
abide by and be bound by all of the terms of the Indemnity and the Environmental
Indemnity having reference to the Borrower, Indemnitor and Principal, all as
though the Indemnity and the Environmental Indemnity had been made, executed,
and delivered by the Assuming Borrower as the Borrower, Indemnitor or Principal.
From and after the date hereof, the Assuming Borrower hereby agrees to pay,
perform, and discharge each and every obligation of payment and performance of
the Borrower, Indemnitor or Principal under, pursuant to and as set forth in the
Indemnity and the Environmental Indemnity at the time, in the manner and
otherwise in all respects as therein provided.
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8. Substitution of Indemnitor. From and after the date of this
Substitution Agreement, the Holdback Principals and Environmental Principal (and
in the case of the Indemnity and the Environmental Indemnity, the Original
Borrower) shall, with respect only to those matters first arising or accruing
after the date of this Substitution Agreement and in connection with which the
Holdback Principals, Environmental Principal and the Original Borrower had no
involvement, be fully released of their liability as the Indemnitor and
Principal under the Loan Documents, including without limitation, the Indemnity
and Environmental Indemnity, Assuming Principal and Assuming Borrower) shall be
substituted, in each and every respect, for the Holdback Principals,
Environmental Principal and the Original Borrower, in lieu of and in place of
the Holdback Principals, Environmental Principal and the Original Borrower with
respect to each and every reference to the Indemnitor and Principal, in the Loan
Documents, including without limitation, the Indemnity and Environmental
Indemnity. Notwithstanding the foregoing, the Assuming Principal and the
Assuming Borrower acknowledge and agree that the Assuming Borrower shall in
addition be responsible and liable for the payment and performance of each and
all of the obligations, covenants and agreements of the Indemnitor and Principal
pursuant to the Indemnity and the Environmental Indemnity. The Holdback
Principals, Environmental Principal and the Original Borrower hereby acknowledge
and agree that the release set forth herein shall not be construed to release
the Holdback Principals, Environmental Principal or the Original Borrower, as
the case may be, from any liability under the Note or any of the other Loan
Documents, including, without limitation, the Indemnity and Environmental
Indemnity, for any acts or events occurring or obligations arising prior to or
upon the date of this Substitution Agreement, whether or not such acts, events
or obligations are, as of the date of this Substitution Agreement, known or
ascertainable.
9. Notice to Indemnitor. Without amending, modifying or otherwise
affecting the provisions of the Loan Documents except as expressly set forth
herein, the Lender shall, from and after the date of this Substitution
Agreement, deliver any notices to the Indemnitor or Principal which are required
to be delivered pursuant to the Loan Documents, or are otherwise delivered by
the Lender thereunder at Lender's sole discretion, to the Assuming Principal's
address set forth at the foot of this Substitution Agreement.
10. No Waiver by Lender. Except for the express release of the Holdback
Principals, Environmental Principal and Original Borrower as set forth in
Section 8 herein, nothing contained herein shall be deemed a waiver of any of
the Lender's rights or remedies under any loan agreement, the Note, the
Mortgage, or any of the other Loan Documents.
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11. Relationship with Loan Documents. To the extent that this
Substitution Agreement is inconsistent with the Loan Documents, this
Substitution Agreement will control and the Loan Documents will be deemed to be
amended hereby. Except as amended hereby, the Loan Documents shall remain
unchanged and in full force and effect.
12. Captions. The headings to the sections of this Substitution
Agreement have been inserted for convenience of reference only and shall in no
way modify or restrict any provisions hereof or be used to construe any such
provisions.
13. Partial Invalidity. If any provision of this Substitution Agreement
is held to be illegal, invalid or unenforceable under present or future laws,
such provision shall be fully severable, and this Substitution Agreement shall
be construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part of this Substitution Agreement.
14. Entire Agreement. This Substitution Agreement constitutes the
entire agreement among the parties hereto with respect to the subject matter
hereof (it being hereby acknowledged and agreed that this Substitution Agreement
is not intended to address or otherwise relate to the liability or obligations
of the Assuming Borrower under any of the Loan Documents, except as expressly
set forth herein in connection with, and with regard to, the Environmental
Indemnity). This Substitution Agreement shall not be amended unless such
amendment is in writing and executed by each of the parties. This Substitution
Agreement supersedes all prior negotiations regarding the subject matter hereof.
15. Binding Effect. This Substitution Agreement and the documents
contemplated to be executed in connection herewith shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns; provided, however, that the foregoing provisions of this Section shall
not be deemed to be a consent by the Lender to any further sale, conveyance,
assignment or transfer of the Property by the Assuming Borrower.
16. Multiple Counterparts. This Substitution Agreement may be executed
in multiple counterparts, each of which will be an original, but all of which,
when taken together, will constitute one and the same Substitution Agreement.
17. Governing Law. This Substitution Agreement shall be governed by and
construed in accordance with the laws of the State of Pennsylvania.
18. Effective Date. This Substitution Agreement shall be effective as
of the date of its execution by the parties hereto and thereupon is incorporated
into the terms of the Loan Documents.
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IN WITNESS WHEREOF, the parties hereto have executed this Substitution
Agreement under seal to be effective as of the date first aforesaid.
ASSUMING PRINCIPAL:
Cedar Income Fund Partnership, L.P., a Delaware limited
Partnership
By: Cedar Income Fund, Ltd., a Maryland corporation
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------------
Its: Vice President
---------------------------------------
Cedar Income Fund, Ltd., a Maryland corporation
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------------
Its: Vice President
---------------------------------------
Address of Assuming Principal:
c/o Brentway Management, LLC
00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
ASSUMING BORROWER:
Loyal Plaza Associates, L.P. a Delaware limited
partnership
By: CIF-Loyal Plaza Associates, L.P. a Delaware
limited partnership
Its: General Partner
By: CIF-Loyal Plaza Associates, Corp., a
Delaware corporation
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------
Its: Vice President
---------------------------------
Address of Assuming Borrower:
c/o Brentway Management, LLC
00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
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HOLDBACK PRINCIPALS AND ENVIRONMENTAL PRINCIPAL:
Glimcher Properties Limited Partnership, a Delaware
limited partnership
By: Glimcher Properties Corporation, a
Delaware corporation
Its: General Partner
By:
-----------------------------------
Name:
---------------------------------
Its:
----------------------------------
Glimcher Loyal Plaza Tenant, L.P., a Delaware limited
partnership
By: Glimcher Loyal Plaza Tenant, Inc., a
Delaware corporation
Its: General Partner
By:
----------------------------------------
Name:
--------------------------------------
Its:
---------------------------------------
ORIGINAL BORROWER:
Loyal Plaza Venture, L.P. a Delaware
limited partnership
By: Glimcher Loyal Plaza, Inc. a Delaware
corporation
Its: General Partner
By:
---------------------------------------
Name:
-------------------------------------
Its:
--------------------------------------
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LENDER:
LASALLE BANK NATIONAL ASSOCIATION, as Trustee for the
Registered Holders of LB-UBS Commercial Mortgage
Trust 2001-C3, Commercial Mortgage Pass-Through
Certificates, Series 2001-C3
By: WACHOVIA BANK, NATIONAL ASSOCIA-TION (f/k/a
First Union National Bank), as Master Servicer,
as authorized under that certain Pooling and
Servicing Agreement dated as of July 11, 2001
By:
----------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
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