ASSIGNMENT AND ASSUMPTION
Exhibit 10.1
THIS ASSIGNMENT AND ASSUMPTION (this “Assignment and Assumption”) is effective as of
July 16, 2009, by PGRT ESH, Inc., a Delaware corporation (“Assignor”) and LSG-ESH LLC, a
Delaware limited liability company (“Assignee”).
Background
A. Assignor is the owner of 71.180412 Series A-2 Units and 71.180412 Common A-2 Units
(collectively, the “Units”) in BHAC Capital IV, L.L.C., a Delaware limited liability
company (the “Company”), as set forth in the Second Amended and Restated Limited Liability
Company Agreement of the Company, dated as of June 29, 2007 (as the same may be modified, amended
or restated from time to time, the “Company LLC Agreement”).
B. Assignor and Citicorp USA, Inc., a Delaware corporation (the “Lender”) are parties
to the Amended and Restated Loan Agreement, dated as of June 6, 2008, as amended by the First
Amendment to Loan Agreement, dated as of October 31, 2008 (as amended by that certain letter
agreement dated as of December 31, 2008, that certain letter agreement dated as of January 30, 2009
that certain letter agreement dated as of March 2, 2009 and that certain letter agreement dated as
of April 30, 2009; collectively the “First Amendment”) among Assignor, Lightstone Holdings
LLC, a Delaware limited liability company (“Lightstone Holdings”), Xxxxx Xxxxxxxxxxxx
(together with Lightstone Holdings, the “Guarantors”) and the Lender, the Second Amendment
to Loan Agreement, dated as of December 31, 2008, among Assignor, the Guarantors and Lender (the
“Second Amendment”), the Third Amendment to Loan Agreement, dated as of January 30, 2009,
among Assignor, the Guarantors and Lender (the “Third Amendment”), the Waiver and Fourth
Amendment to Loan Agreement, dated as of March 2, 2009, among Assignor, the Guarantors and Lender
(the “Fourth Amendment”), and the Fifth Amendment to Loan Agreement, dated as of April 30,
2009, among Assignor, the Guarantors and Lender (the “Fifth Amendment”; such Loan Agreement
as amended by the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment
and the Fifth Amendment, the “Loan Agreement”).
C. Assignor desires to assign, transfer and convey and Assignee desires to acquire all of
Assignor’s right, title and interest in, to and under the Units, and as consideration for such
transfer Assignee desires to assume directly as a Borrower all of Assignor’s obligations under the
Loan Agreement and related loan documents, including, but not limited to, that certain Amended and
Restated Promissory Note dated as of June 6, 2008 from Assignor to the Lender, the Amended and
Restated Pledge Agreement dated as of June 6, 2008 (the “BHAC Pledge Agreement”) by
Assignor in favor of Lender and any and all other agreements, forbearance agreements, side letters
and other applicable loan documents (collectively, the “Loan Documents”).
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Assignor hereby transfers, assigns and sets over to Assignee all of Assignor’s right, title
and interest in, to and under the Units, subject to the lien of the BHAC Pledge Agreement.
2. Assignee hereby accepts the foregoing assignment and transfer of the Units, subject to the
lien of the BHAC Pledge Agreement and succeeds to and assumes all rights, duties, liabilities and
obligations arising under or related to the Units as provided in the Company LLC Agreement.
3. Assignor hereby transfers, assigns and sets over to Assignee, Xxxxx Xxxxxxxxxxxx and
Xxxxxxxxxx Holdings all of Assignor’s rights, duties, liabilities and obligations under the Loan
Agreement and other Loan Documents and Assignee , Xxxxx Xxxxxxxxxxxx and Lightstone Holdings hereby
accept the foregoing assignment and transfer of all rights, duties, liabilities and obligations of
Assignor under the Loan Agreement and other Loan Documents. In connection with the foregoing,
Assignee shall request that Lender release Assignor of all of its rights, duties, liabilities and
obligations under the Loan Agreement and the other Loan Documents.
4. This Assignment and Assumption shall inure to the benefit of, and be binding upon,
Assignor, Assignee, Xxxxx Xxxxxxxxxxxx and Xxxxxxxxxx Holdings and their respective designees,
heirs, personal representatives, successors and assigns.
5. Each party hereto shall cooperate with the other party at all times from and after the date
hereof with respect to all of the matters described herein, and shall execute such further
documents as may be reasonably requested for the purpose of giving effect to, or evidencing or
giving notice of, the transactions contemplated by this Assignment and Assumption.
6. This Assignment and Assumption shall be construed in accordance with and governed by the
laws of the State of New York.
7. This Assignment and Assumption is made without recourse, representation or warranty.
8. This Assignment and Assumption may be executed in one or more counterparts, and may be
delivered via electronic mail or facsimile transmission, each of which when so executed and
delivered shall be deemed an original, but all of which taken together shall constitute but one and
the same instrument.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Assignment and Assumption effective as of
the date first written above.
| ASSIGNOR: PGRT ESH, INC., a Delaware corporation |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| ASSIGNEE:
LSG-ESH LLC, a Delaware limited liability company |
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| By: | /s/ Xxxxx Xxxxxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
ACCEPTED AND AGREED AS TO THE ASSIGNMENT
AND ASSUMPTION OF THE OBLIGATIONS UNDER
THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS:
AND ASSUMPTION OF THE OBLIGATIONS UNDER
THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS:
| LIGHTSTONE HOLDINGS LLC | ||||
By:
|
/s/ Xxxxx Xxxxxxxxxxxx | |||
| Xxxxx Xxxxxxxxxxxx | ||||
| Managing Member | ||||
| XXXXX XXXXXXXXXXXX | ||||
| /s/ Xxxxx Xxxxxxxxxxxx | ||||
| Xxxxx Xxxxxxxxxxxx | ||||
[Signature Page to Assignment and Assumption]
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The undersigned hereby consents to the admission of the Assignee as a member of the Company on the
terms and subject to the conditions set forth in this Assignment and Assumption and the Company LLC
Agreement.
| BHAC CAPITAL IV, L.L.C., a Delaware limited liability company |
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| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Secretary | |||
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