Exhibit 10.21
DEFEASANCE ASSIGNMENT, ASSUMPTION
AND RELEASE AGREEMENT
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THIS DEFEASANCE ASSIGNMENT, ASSUMPTION AND RELEASE AGREEMENT, dated as of
December 22, 2006, (this "Agreement") made by and among GLIMCHER UNIVERSITY MALL
LIMITED PARTNERSHIP, a Delaware limited partnership ("Borrower"), SB NASC
1998-D6 HOLDINGS, LLC, a Delaware limited liability company ("Successor
Borrower"), LASALLE BANK NATIONAL ASSOCIATION (f/k/a LaSalle National Bank), as
Trustee for Nomura Asset Securities Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1998-D6, as secured party (said Trustee and
its successors and assigns, "Lender"), CAPMARK FINANCE INC. ("Servicer"), and,
for the sole purpose of acknowledging the transactions effected by this
Agreement, XXXXX FARGO BANK, N.A., as securities intermediary and custodian
("Intermediary").
RECITALS:
X. Xxxxxx Asset Capital Corporation ("Original Lender"), made a loan in the
original principal amount of $64,898,546.00 (the "Mortgage Loan") to Borrower
pursuant to a Loan Agreement dated December 17, 1997 by and between Original
Lender and Borrower, as amended by that certain Amendment to Loan Agreement
dated March 26, 1998 (as amended, the "Loan Agreement"). The Mortgage Loan is
evidenced by a Promissory Note dated December 17, 1997, from Borrower and
payable to Original Lender (the "Note").
B. The Mortgage Loan and Note are secured by, among other things, that
certain Mortgage, Assignment of Rents, Security Agreement and Fixture Filing
dated December 17, 1997 from Borrower to Original Lender recorded January 7,
1998 in Official Records Book 8861, Page 0466 for Hillsborough County, Florida
and that certain Assignment of Leases and Rents, dated December 17, 1997 and
recorded January 7, 1998 in Official Records Book 8861, Page 0527 for
Hillsborough County, Florida (together, the "Security Instrument") which grants
to Original Lender, among other things, a lien on the real and personal property
described in said Security Instrument (the "Mortgaged Property"). The Mortgage
Loan is further evidenced or secured by various other documents executed by
Borrower in favor of Original Lender (together with the Note, the Loan Agreement
and Security Instrument, the "Mortgage Loan Documents").
C. Lender is the current holder of the Note and the other Mortgage Loan
Documents.
D. Pursuant to the Mortgage Loan Documents, Borrower has directed Lender to
release the Mortgaged Property from the liens and security interests of the
Security Instrument and to release any other collateral or security previously
given by Borrower as security for the Mortgage Loan upon Borrower's defeasance
of the Mortgage Loan (the "Defeasance").
E. Borrower is the legal and beneficial owner of the Securities (as
hereinafter defined). Pursuant to the Mortgage Loan Documents, and as a
condition precedent to Lender's obligation to release the Mortgaged Property
from the liens and security interests of the Security Instrument, Borrower has
granted to Lender, a security interest in the Pledged Collateral (as hereinafter
defined) in accordance with the terms and conditions of the Defeasance Pledge
and Security Agreement of even date herewith among Borrower, Lender, and
Intermediary (the "Pledge Agreement").
F. In connection with the Pledge Agreement, Borrower, Lender, Intermediary,
and Servicer, have entered into the Defeasance Account Agreement of even date
herewith (the "Account Agreement"), pursuant to which Intermediary has
established and will maintain an account to hold the interests of Borrower and
Successor Borrower in the Pledged Collateral.
G. Pursuant to the Mortgage Loan Documents, Borrower is required or
permitted to transfer and assign all of its obligations, rights and duties under
and to the Note and the other Defeasance Documents (as defined in the Pledge
Agreement), together with its right, title and interest in the Pledged
Collateral, to a successor entity established or designated in accordance with
the Mortgage Loan Documents.
H. Successor Borrower has been established or designated as a Single
Purpose Entity (as defined in the Pledge Agreement) that will assume Borrower's
rights and obligations under the Defeasance Documents.
I. Borrower desires to (i) obtain the release of the Mortgaged Property
from the lien of the Security Instrument and the other Mortgage Loan Documents,
(ii) transfer and assign its rights and obligations under the Note and the other
Defeasance Documents to Successor Borrower, and (iii) obtain a release of the
Borrower's rights and obligations under the Note, the Mortgage Loan Documents,
and the other Defeasance Documents as set forth in Section 5 herein. Successor
Borrower desires to assume Borrower's rights and obligations under the Note and
the Defeasance Documents to the extent provided herein, and acquire Borrower's
right, title and interest in and to the Pledged Collateral.
NOW, THEREFORE, in consideration of the mutual covenants and promises of
the parties hereto and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions.
Each capitalized term used and not defined in this Agreement shall have the
meaning assigned to such term in the Pledge Agreement. The following terms shall
have the following meanings when used in this Agreement.
"Entity" means a limited partnership.
"Entity State" means the State of Delaware.
"Servicer Address" means:
c/o Capmark Finance Inc.
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Loan Servicing/Loan #400029644
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"Successor Borrower Address" means:
SB NASC 1998-D6 Holdings, LLC
000 Xxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Attention: ____________
"Successor Borrower Organization Name" means SB NASC 1998-D6 Holdings, LLC.
"Successor Borrower Organization State" means the State of Delaware.
"Successor Borrower Organizational Number" means ______.
"Successor Borrower Tax Identification Number" means ________.
Section 2. Assignment of Secured Obligations and Securities.
Effective as of the date hereof, Borrower hereby sells, transfers and
assigns to Successor Borrower, (a) the Secured Obligations, and all obligations,
rights, including, without limitation, any right to prepay the Loan, and duties
in, to and under, and subject to the terms of the Defeasance Documents, and (b)
all of Borrower's right, title and interest in and to the Pledged Collateral,
subject to the terms of the Defeasance Documents and to the rights of the Lender
and the obligations of the Intermediary pursuant to the Pledge Agreement and the
Account Agreement.
Section 3. Assumption of Mortgage Loan Obligations.
(a) Successor Borrower, for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, hereby assumes, and agrees to be
bound by and to perform and/or be deemed to have made, as applicable, each of
the Secured Obligations and all other covenants, agreements, representations and
warranties of Borrower under the Note, the Pledge Agreement, and the Account
Agreement, including, without limitation, assuming any rights and requirements
in the Note related to the prepayment of the Loan, first arising or accruing on
or after the date of the transfer of the Pledged Collateral to Successor
Borrower; provided, however, Successor Borrower shall not assume any obligations
(i) under Section 4 of the Pledge Agreement (with respect to the Securities
transferred to Successor Borrower on the date hereof), (ii) that arise as a
result of Borrower's failure to effect the initial perfection of Lender's
interest in the Pledged Collateral prior to the transfer of the Pledged
Collateral to Successor Borrower, (iii) that arise as a result of any
misrepresentation or misstatement made by Borrower in any of the Defeasance
Documents or otherwise made by Borrower in connection with the Defeasance, (iv)
that specifically relate to the use or operation of the Mortgaged Property to
the extent that provisions of the Mortgage Loan Documents have been incorporated
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into the Note, including, without limitation, any real-property related events
of default set forth in the Mortgage Loan Document, or (v) of any expenses that
may be due and payable under the Note or the Mortgage other than principal and
interest due under the Note, unless such other costs or expenses are
specifically identified and expressly assumed by the Successor Borrower herein.
(b) Except as set forth in Section 3(c) below, Lender shall have no
recourse against, and Lender shall not enforce any monetary judgment with
respect to the Secured Obligations against, assets of Successor Borrower other
than the Pledged Collateral.
(c) Notwithstanding the provisions of Section 3(b) above, Successor
Borrower (but not its members or managers) shall be personally liable for all
claims, demands, liabilities, deficiencies, losses, damages, judgments, costs,
and expenses, including without limitation reasonable attorneys fees and costs
of collection incurred, suffered or paid by Lender as a result of:
(i) any representation, warranty or certification made by or on behalf
of Successor Borrower for the benefit of Lender in any of the Defeasance
Documents (or in any modification or supplement thereto), or in any
certificate, report, financial statement or other item furnished to Lender
by or on behalf of Successor Borrower in connection with the Defeasance
having been false or misleading in any material respect as of the time made
or furnished;
(ii) the Pledged Collateral or any part thereof or interest therein
becoming subject to any security interest, pledge, covenant, lien, or other
encumbrance whether junior or senior to the interest of Lender as a result
of any actions or inaction of Successor Borrower;
(iii) the Pledged Collateral or any part thereof or interest therein
being sold, assigned, transferred, conveyed or otherwise disposed of, or
becoming the subject of any attempted sale, assignment, transfer or
conveyance, by Successor Borrower, subject to the terms of Section 4(e) of
the Account Agreement following payment of the Mortgage Loan;
(iv) any of the Events of Default described in subsections (iv)
through (xii) of Section 9(a) of the Pledge Agreement shall occur as a
result of actions of Successor Borrower or circumstances relating to
Successor Borrower; or
(v) Successor Borrower's failure to immediately deposit into the
Pledged Collateral Account an amount sufficient to pay any shortfall if, at
any time, funds available in the Pledged Collateral Account (without taking
into account reinvestment income) are insufficient to satisfy all
obligations then due under the Note or under any of the other Defeasance
Documents, including payment of the Mortgage Loan in full on the Optional
Prepayment Date, other than any insufficiency resulting from the failure of
an Obligor to make timely payments with respect to the Securities.
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(d) Successor Borrower's assumption of the obligations of Borrower under
the Defeasance Documents as set forth above is limited to those obligations
arising on and after the date hereof, except that Successor Borrower expressly
assumes (i) liability under the Note for unpaid principal and interest accruing
on the Mortgage Loan from and after the first day of the interest accrual period
in which the Defeasance occurs, which amount shall be deposited by Borrower in
the Pledged Collateral Account on or before the date hereof and paid in
accordance with the provisions of the Account Agreement from the Pledged
Collateral Account, and (ii) any liability that may arise if the Securities are
insufficient to make timely payments in accordance with the Account Agreement
(other than any insufficiency resulting from the failure of an Obligor to make
timely payments with respect to the Securities).
(e) On or before June 30th of each calendar year during the term of the
Mortgage Loan, and within thirty (30) days after written request from Lender,
Successor Borrower shall deliver to Lender a certification signed by an officer
or manager of Successor Borrower, certifying that such Person is familiar with
the activities and operations of Successor Borrower and Successor Borrower's
affiliates and all transactions entered into by Successor Borrower during the
preceding twelve months, and that, to such Person's knowledge, Successor
Borrower has (i) conducted itself as a Single Purpose Entity during such period,
(ii) filed all tax returns required to be filed during such period, and (ii)
paid all taxes due and payable during such period. If requested by Lender, each
such certification shall be accompanied by an original certificate of existence
or good standing issued by the Secretary of State of the Successor Borrower
Organization State dated not more than thirty (30) days prior to the date of
such certification.
(f) In addition to the Lender's rights under the Mortgage Loan Documents,
Successor Borrower hereby grants to Lender and Servicer a power of attorney to
file any franchise or other administrative filings that may be required to
maintain Successor Borrower's good standing and legal existence in the event
Successor Borrower fails to do so (and such failure continues for 30 days after
Successor Borrower's receipt of written notice of such failure). The foregoing
grant of authority is a power of attorney coupled with an interest and such
appointment shall be irrevocable for the term of this Agreement. Any and all
losses, expenses and costs of any nature or kind whatsoever that may be paid or
incurred by the Lender or Servicer as a result of the Successor Borrower's
failure to maintain its good standing and legal existence are specifically
included within the Secured Obligations for which the Securities and any
proceeds thereof are pledged.
(g) In addition to any other remedies that the Lender may have under the
Defeasance Documents, in the event of the failure of the Successor Borrower to
maintain its status as a Single Purpose Entity in good standing, the Successor
Borrower's failure to file all required tax returns and pay all taxes which it
owes, or the Successor Borrower's failure to file all forms and documents
required to maintain its separate legal existence (in each case, which failure
shall continue for 60 days after Successor Borrower's receipt of written notice
of such failure), Successor Borrower hereby agrees to the assumption of the
Mortgage Loan by, and the transfer of the Pledged Collateral to, a Single
Purpose Entity designated by Lender and hereby appoints Lender and Servicer as
attorneys in fact with power of attorney to effect such transfer and assumption.
The foregoing grant of authority is a power of attorney coupled with an interest
and such appointment shall be irrevocable for the term of this Agreement.
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(h) Borrower acknowledges that Successor Borrower is (i) assuming the
Secured Obligations and the obligation to pay all fees and amounts due under the
Defeasance Documents first arising on or after the date hereof, including, but
not limited to, all fees and costs first arising on or after the date hereof
under Section 9 of the Account Agreement, (ii) assuming any rights and
requirements, if any, in the Defeasance Documents related to the prepayment of
the Mortgage Loan prior to the Optional Prepayment Date, and (iii) the owner of
all proceeds, if any, from the Pledged Collateral in excess of amounts due under
the Defeasance Documents.
Section 4. Acknowledgment of Lender.
Subject to (a) the satisfaction or waiver of all conditions to the
Defeasance set forth in the Mortgage Loan Documents, and (b) the Defeasance
Documents, Lender hereby recognizes and consents to Borrower's transfer and
assignment to Successor Borrower of Borrower's rights in the Pledged Collateral
and its rights and obligations under the Defeasance Documents in accordance with
Section 2 above, and the assumption by Successor Borrower of Borrower's rights
in the Pledged Collateral and its rights and obligations under the Defeasance
Documents in accordance with Section 3 above.
Section 5. Release of Borrower.
(a) In reliance upon the representations and warranties of Borrower set
forth in the Defeasance Documents, Lender (1) shall promptly release and
discharge the Mortgaged Property (and other interests subject to the lien of the
Mortgage Loan Documents) from the liens and security interest of the Security
Instrument and the other Mortgage Loan Documents, (2) authorizes Borrower to
terminate any UCC financing statements filed in connection with the Mortgage
Loan naming Borrower as debtor, and listing all or any portion of the Mortgaged
Property as collateral therein, and (3) hereby releases and discharges Borrower
and Guarantor from all claims, liabilities and obligations under the Mortgage
Loan Documents and the Defeasance Documents related to events first occurring or
arising after the transfer of the Pledged Collateral to Successor Borrower
(including, without limitation, a release and discharge of all obligations under
Section 24 of the Pledge Agreement, without regard for the date such obligations
may have first occurred or arose); provided, however, the Borrower and Guarantor
shall not be released from liability for any loss or damages suffered, or
expenses incurred, by Lender, Successor Borrower, or Intermediary as a result of
or established pursuant to a claim, liability or obligation:
(i) arising from Borrower's obligations under Sections 4 or 5 of the
Pledge Agreement that have not been expressly assumed by Successor Borrower
under this Agreement;
(ii) with respect to any representation, warranty or certification of
Borrower or Guarantor under this Agreement, the Pledge Agreement, the
Account Agreement, Waiver and Consent and the Defeasance Certificate or in
any certificate, report, financial statement or other item delivered by or
on behalf of Borrower in connection therewith (other than any certification
set forth in the Accountant's Report delivered by or on behalf of Borrower)
that was false or misleading in any material respect when made or
delivered;
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(iii) arising as a result of the transfer of, or the creation and
perfection of the first priority lien on the Pledged Collateral being
deemed void or voidable for any reason whatsoever, or arising as a result
of any other payment made by Borrower or Guarantor in respect of amounts
due under the Mortgage Loan Documents on or prior to the date hereof being
recovered from the Lender by Borrower, its creditors, or any other Person
for any reason whatsoever claiming by or through Borrower;
(iv) for any other failure by Borrower to pledge the Pledged
Collateral to Lender or take or authorize any action necessary to effect
the first priority perfection of Lender's lien and security interest
therein on or before the date hereof or to effectively transfer the Pledged
Collateral to Successor Borrower in accordance with the Defeasance
Documents;
(v) arising under any environmental or hazardous materials indemnity
agreement or any other indemnity obligation or other obligation set forth
in the Mortgage Loan Documents that, by their terms, survive the release of
the lien of the Security Instrument; or
(vi) arising as a result of an Event of Default under the Pledge
Agreement that results from circumstances relating to Borrower, or actions
of Borrower, included in subsections (iii) through (viii), (xi) or (xii) of
Section 9(a) of the Pledge Agreement.
(b) Without limiting any other remedies Lender may have, upon the
occurrence of any Event of Default arising under the Mortgage Loan Documents or
the Defeasance Documents from any breach, act or omission of Borrower or
Guarantor prior to the date hereof, Lender shall be entitled to enforce all of
its remedies set forth in the Mortgage Loan Documents and the Defeasance
Documents against Borrower and Guarantor (but not against the Mortgaged
Property), but only to the extent of any actual losses or damages incurred by
Lender. Except as expressly set forth in this Section 5, Lender hereby releases
Borrower and Guarantor from their respective obligations under the Mortgage Loan
Documents and the Defeasance Documents.
Section 6. Release of Lender and Servicer.
Borrower hereby covenants and agrees that: (i) from and after the date
hereof, Lender and Servicer may deal solely with Successor Borrower in all
matters relating to the Mortgage Loan (except in the case of matters in which
liability is to be asserted against Borrower or Guarantor); (ii) Lender and
Servicer have no further duty or obligation of any nature relating to the
Mortgage Loan or the Mortgage Loan Documents to Borrower (except that the
Servicer agrees to return to Borrower promptly following the date hereof any
escrows or reserves that it holds pursuant to the Mortgage Loan Documents); and
(iii) Borrower hereby releases Lender and Servicer, and each of their
predecessors-in-interest, together with all officers, directors, employees and
agents of each of the foregoing, from all claims, causes of action and
liabilities relating directly or indirectly to the Mortgage Loan, the Mortgaged
Property, the Mortgage Loan Documents and the Defeasance arising on or prior to
the date hereof, including any and all claims arising from or relating to
negotiations, demands, requests or exercise of remedies in connection with the
Mortgage Loan and the Defeasance (except for claims arising out of Lender or
Servicer's fraud, negligence or willful misconduct).
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Section 7. Representations and Warranties.
(a) Borrower represents and warrants to the other parties hereto that, as
of the date hereof:
(i) Borrower is an Entity duly organized, validly existing in good
standing and in full force and effect under the laws of the Entity State;
(ii) Borrower has full power, authority and legal right to enter into
the Defeasance Documents and to pledge and grant to Lender a lien on, and
security interest in, the Pledged Collateral pursuant to the Pledge
Agreement. The Defeasance Documents have been duly authorized, executed and
delivered by Borrower and constitute the legal, valid and binding
obligation of Borrower, enforceable against Borrower in accordance with
their terms except as may be limited by bankruptcy, insolvency, and similar
laws affecting the rights of creditors generally;
(iii) the execution and delivery of the Defeasance Documents by
Borrower, the consummation of the Defeasance by Borrower, and the
compliance by Borrower with the terms and provisions of the Defeasance
Documents will not conflict with or result in a breach of, the
organizational documents of Borrower, any applicable law or regulation, or
any order, writ, injunction or decree of any court or Governmental
Authority applicable to Borrower, or any agreement or instrument to which
Borrower is a party or by which Borrower is bound or to which any of the
Pledged Collateral is subject, or result in the creation or imposition of
any lien upon any earnings or assets of Borrower pursuant to the terms of
any such agreement or instrument;
(iv) no authorization, consent, approval, license, qualification or
formal exemption from, nor any filing, declaration or registration with,
any court, Governmental Authority, or with any securities exchange or any
other Person is required in connection with (i) the due execution, delivery
or performance by Borrower of the Defeasance Documents, (ii) the assignment
of, and the grant of a lien on (including the priority thereof), the
Pledged Collateral by Borrower in the manner and for the purpose
contemplated by the Defeasance Documents, or (iii) the exercise of the
rights and remedies of Lender created hereby except those that have been
obtained or made prior to or concurrently with the execution hereof;
(v) except as set forth in the Waiver and Consent, all principal,
interest and other amounts due and payable on or before the date hereof
under the Defeasance Documents and the Mortgage Loan Documents have been
paid;
(vi) no non-monetary default has occurred and is continuing under any
of the Mortgage Loan Documents beyond any applicable grace or notice
period;
(vii) the fair market value of the Mortgaged Property is greater than
the fair market value of the Securities. Borrower has received reasonably
equivalent value in exchange for the transfers contemplated by the
Defeasance Documents;
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(viii) Borrower has not incurred any indebtedness other than (A) the
Mortgage Loan, (B) indebtedness expressly permitted by the Mortgage Loan
Documents, and (C) indebtedness, if any, associated with the refinancing of
the Mortgage Loan in connection with the Defeasance;
(ix) the pledge of the Securities to Lender and transfer of the
Securities to Successor Borrower are not done in contemplation of
insolvency or bankruptcy or with an intent to hinder, delay or defraud any
of Borrower's creditors;
(x) Borrower is not insolvent immediately prior to its execution of
this Agreement and is not being rendered insolvent by the pledge of the
Securities to Lender and transfer of the Securities to Successor Borrower;
(xi) the assets owned by Borrower, immediately after giving effect to
the pledge of the Securities to Lender and transfer of the Securities to
Successor Borrower, represent an amount of capital that is not unreasonably
small for the business in which Borrower is engaged, and Borrower does not
intend to engage in any other business for which such capital would be
unreasonably small;
(xii) at the time of the pledge of the Securities to Lender and
transfer of the Securities to Successor Borrower, Borrower does not intend
to, or believe that it will, incur debts that would be beyond its ability
to pay as such debts matured;
(xiii) the Mortgage Loan Documents do not contain provisions requiring
Borrower to make any scheduled payments that by their terms would be
payable on or after the date of the closing of the Defeasance, other than
scheduled payments of principal and interest under the Note, including
annual surveillance fees of rating agencies, servicing and trustees fees
with respect to securitization of the Mortgage Loan, except such payments
as have been specifically identified by Borrower and either (a) expressly
assumed by Successor Borrower under the Defeasance Documents, or (b) paid
in full in advance by Borrower in connection with the closing of the
Defeasance; and
(xiv) Borrower's purpose in entering into the Defeasance is to
facilitate a sale of the Mortgaged Property or other customary commercial
transaction and not as part of an arrangement to collateralize the REMIC
pool evidenced by the Certificates with obligations that are not real
estate mortgages.
(b) Successor Borrower represents, warrants and covenants to the other
parties hereto that:
(i) Successor Borrower is a limited liability company, duly organized,
validly existing and in good standing under the laws of the Successor
Borrower Organization State. The name of the Successor Borrower indicated
in the public records of the Successor Borrower Organization State is the
Successor Borrower Organization Name. Successor Borrower has all requisite
power and authority to carry on its business as now conducted and as
proposed to be conducted, and to enter into and perform its obligations
under this Agreement and the other Defeasance Documents;
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(ii) the execution and delivery of this Agreement, the assumption of
the Borrower's rights and obligations under the Pledge Agreement and the
Account Agreement, and performance of all of Successor Borrower's rights
and obligations thereunder, have been duly authorized by all necessary and
appropriate action of Successor Borrower;
(iii) no consent or approval of any person, entity, or Governmental
Authority is required with respect to the execution and delivery of this
Agreement by Successor Borrower or the consummation by Successor Borrower
of the transactions contemplated thereby or the performance by Successor
Borrower of its obligations under this Agreement and the other Defeasance
Documents, except such consents or approvals as have already been obtained;
(iv) this Agreement, the Pledge Agreement and the Account Agreement are the
legal, valid and binding obligations of the Successor Borrower, enforceable
against the Successor Borrower in accordance with their respective terms,
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws of general
applicability affecting the enforcement of creditors' rights;
(v) the state of organization of Successor Borrower is the Successor
Borrower Organization State, Successor Borrower's taxpayer identification
number is Successor Borrower Tax Identification Number, and Successor
Borrower's organizational identification number is Successor Borrower
Organizational Number;
(vi) since its formation, Successor Borrower has not changed its
jurisdiction of organization. Successor Borrower shall not change the
Successor Borrower Organization Name as it appears in the organizational
documents on file in the Successor Borrower Organization State, or change
the Successor Borrower Organization State until (A) it has given Lender not
less than 30 days' prior written notice of its intention to do so, clearly
describing the new name or jurisdiction, and (B) it has provided Lender
with any information regarding the new name or jurisdiction as Lender may
request; and if Successor Borrower intends to change the Successor Borrower
Organization Name or change the Successor Borrower Organization State,
Successor Borrower shall cooperate with Lender in taking all action
required by Lender to maintain perfection, priority and validity of the
lien of Lender in the Pledged Collateral granted by the Pledge Agreement;
(vii) Successor Borrower has no notice or knowledge of any adverse
claim, lien or encumbrance with respect to the Pledged Collateral;
(viii) Successor Borrower is, has been since the date of its
formation, and shall at all times continue to be, a Single Purpose Entity
in good standing under the laws of the Successor Borrower Organization
State;
(ix) the proceeds of the Securities (without regard to reinvestment
income) will be sufficient to make all regularly scheduled principal and
interest payments required under the Defeasance Documents, assuming timely
payments by each Obligor with respect to the Securities;
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(x) Successor Borrower is not insolvent immediately prior to its
execution of this Agreement and is not being rendered insolvent by the
assumption of the Defeasance Documents;
(xi) the assets owned by Successor Borrower immediately after giving
effect to the assumption of the Defeasance Documents represent an amount of
capital that is not unreasonably small for the business in which Successor
Borrower is engaged, and Successor Borrower does not intend to engage in
any other business for which such capital would be unreasonably small;
(xii) at the time of the assumption of the Defeasance Documents,
Successor Borrower does not intend to, or believe that it will, incur debts
that would be beyond its ability to pay as such debts mature; and
(xiii) Successor Borrower shall advance funds to cover any shortfall
if at any time the funds available in the Pledged Collateral Account are
insufficient to pay amounts then due with respect to the Secured
Obligations, other than any shortfall resulting from the failure of an
Obligor to make timely payments with respect to the Securities.
(c) Intermediary acknowledges and confirms that any fees related to
investments in Default Permitted Investments or to wire transfers to the
Collection Account from the Pledged Collateral Account or to Successor Borrower
are included in fees that have already been paid to Intermediary.
Section 8. Conditions to Defeasance.
Except as set forth on Schedule 1 of the Waiver and Consent, Borrower
represents, warrants and covenants that it has satisfied the conditions set
forth in the Mortgage Loan Documents required to effectuate the release of the
Mortgaged Property from the lien of the Security Instrument and the closing of
the Defeasance of the Mortgage Loan on the date hereof. Borrower has delivered
the Defeasance Certificate to Lender on the date hereof, and Borrower
acknowledges that Successor Borrower is relying upon such Defeasance
Certificate, and on the representations set forth herein, as a condition to
entering into this Agreement. Borrower further acknowledges and agrees that all
proceeds from the Pledged Collateral in excess of amounts due under the
Defeasance Documents will be the sole property of Successor Borrower.
Section 9. Modifications.
This Agreement, and any provisions hereof, may not be modified, amended,
waived, extended or changed (collectively, hereinafter a "Modification"), orally
or by an act or failure to act on the part of any party to this Agreement, but
only by an agreement in writing and signed by all of the parties to this
Agreement. Any Modification to this Agreement shall be effectively only in the
specific instance and for the specific purpose for which made or given.
Notwithstanding the foregoing, from and after the date hereof, any new agreement
pertaining to the Mortgage Loan or Modification of the Defeasance Documents may
be made solely by Successor Borrower and Lender, and shall not require the
consent or execution of Borrower, provided no such changes shall increase
Borrower's obligations or liabilities under the Mortgage Loan Documents or the
Defeasance Documents.
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Section 10. Approvals.
As to itself, each of Borrower and Successor Borrower hereby represents and
warrants to Lender that such entity has obtained any and all third-party
approvals and consents required to be obtained in connection with the execution
and delivery of this Agreement and the performance of such entity's obligations
hereunder.
Section 11. Successors and Assigns.
This Agreement applies to, inures to the benefit of, and binds all parties
hereto, their heirs, legatees, devisees, administrators, executors, and
permitted successors and assigns.
Section 12. Headings, Recitals; Exhibits.
The Section headings used in this Agreement are for convenience of
reference only and shall not affect the construction of this Agreement, but the
Recitals herein and the Exhibits attached hereto are hereby incorporated into
and made a part of this Agreement.
Section 13. GOVERNING LAW; VENUE.
THIS AGREEMENT AND ALL RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE, INCLUDING THE CODE AND INCLUDING NEW YORK GENERAL
OBLIGATIONS LAW SECTIONS 5-1401 AND 5-1402 BUT OTHERWISE WITHOUT REGARD TO LAWS
OF THE STATE CONCERNING CONFLICTS OF LAWS OR CHOICE OF FORUM.
BORROWER, LENDER, SUCCESSOR BORROWER, SERVICER AND INTERMEDIARY HEREBY
IRREVOCABLY SUBMIT TO PERSONAL JURISDICTION IN THE STATE AND TO THE
NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN THE
CITY OF NEW YORK OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT. JURISDICTION AND VENUE OF ANY ACTION BROUGHT TO ENFORCE THIS
AGREEMENT OR ANY OF THE OTHER DEFEASANCE DOCUMENTS OR ANY ACTION RELATING TO THE
TRANSACTIONS CONTEMPLATED HEREBY OR THE RELATIONSHIPS CREATED BY OR UNDER THE
DEFEASANCE DOCUMENTS ("ACTION") SHALL, AT THE ELECTION OF LENDER, BE IN (AND IF
ANY ACTION IS ORIGINALLY BROUGHT IN ANOTHER VENUE, THE ACTION SHALL AT THE
ELECTION OF LENDER BE TRANSFERRED TO) A STATE OR FEDERAL COURT OF APPROPRIATE
JURISDICTION LOCATED IN THE STATE. BORROWER, LENDER, SUCCESSOR BORROWER,
SERVICER AND INTERMEDIARY HEREBY CONSENT AND SUBMIT TO THE PERSONAL JURISDICTION
OF THE COURTS OF THE STATE AND OF FEDERAL COURTS LOCATED IN THE STATE IN
CONNECTION WITH ANY ACTION AND HEREBY WAIVE ANY AND ALL PERSONAL RIGHTS UNDER
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THE LAWS OF ANY OTHER STATE TO OBJECT TO JURISDICTION WITHIN THE STATE FOR
PURPOSES OF ANY ACTION. BORROWER, LENDER, SUCCESSOR BORROWER, SERVICER AND
INTERMEDIARY HEREBY WAIVE AND AGREE NOT TO ASSERT, AS A DEFENSE TO ANY ACTION OR
A MOTION TO TRANSFER VENUE OF ANY ACTION, (I) ANY CLAIM THAT IT IS NOT SUBJECT
TO SUCH JURISDICTION; (II) ANY CLAIM THAT ANY ACTION MAY NOT BE BROUGHT AGAINST
IT OR IS NOT MAINTAINABLE IN THOSE COURTS OR THAT THIS AGREEMENT MAY NOT BE
ENFORCED IN OR BY THOSE COURTS, OR THAT IT IS EXEMPT OR IMMUNE FROM EXECUTION;
(III) THAT THE ACTION IS BROUGHT IN AN INCONVENIENT FORUM; OR (IV) THAT THE
VENUE FOR THE ACTION IS IN ANY WAY IMPROPER.
INTERMEDIARY AGREES THAT FOR ALL PURPOSES, INCLUDING SECTION 8 110(E) OF
THE CODE AND THE APPLICABLE FEDERAL BOOK-ENTRY REGULATIONS, THE STATE SHALL BE
THE "SECURITIES INTERMEDIARY'S JURISDICTION" (AS DEFINED IN THE CODE).
Section 14. Entire Agreement.
This Agreement, together with the other agreements referenced herein,
constitute the entire agreement and understanding of the parties to this
Agreement with respect to the matters and transactions contemplated by this
Agreement and supersede all other prior or concurrent oral or written letters,
agreements or understandings with respect to the matters set forth in this
Agreement.
Section 15. Full Force and Effect.
Except as modified by this Agreement and the other Defeasance Documents,
the Mortgage Loan Documents shall remain unchanged and in full force and effect.
Section 16. Counterparts.
This Agreement and any amendments, waivers, consents or supplements hereto
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original, but all such counterparts shall constitute one and the
same Agreement.
Section 17. WAIVER OF TRIAL BY JURY.
BORROWER, LENDER, SUCCESSOR BORROWER, SERVICER AND INTERMEDIARY EACH HEREBY
AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND
WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL
NOW OR HEREAFTER MAY EXIST WITH REGARD TO THIS AGREEMENT OR ANY DOCUMENT RELATED
THERETO, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY BORROWER, LENDER, SUCCESSOR BORROWER, SERVICER AND INTERMEDIARY
AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO
WHICH A RIGHT TO TRIAL BY JURY WOULD OTHERWISE ACCRUE. BORROWER, LENDER,
SUCCESSOR BORROWER, SERVICER AND INTERMEDIARY EACH IS HEREBY AUTHORIZED TO FILE
A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER
BY EACH OTHER.
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Section 18. Notices.
All notices or other communications given hereunder by any party to any
other party hereto shall be given in accordance with Section 14 of the Pledge
Agreement. All notices and other communications to Successor Borrower shall be
sent to the Successor Borrower at the Successor Borrower Address. All notices
and other communications to Servicer shall be sent to the Servicer at the
Servicer Address.
[Signatures On Following Page]
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
BORROWER: GLIMCHER UNIVERSITY MALL LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Tampa, Inc., a Delaware corporation,
its general partner
By:_____________________________
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
[SIGNATURES CONTINUE ON NEXT PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
SUCCESSOR BORROWER:
-------------------
SB NASC 1998-D6 HOLDINGS, LLC, a Delaware
limited liability company
By: MM NASC 1998-D6, Inc., a Delaware
corporation, its managing member
By:__________________________
Name: Xxxxx Xxxxx
Title: President
[SIGNATURES CONTINUE ON NEXT PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
LENDER:
-------
LASALLE BANK NATIONAL ASSOCIATION (f/k/a
LaSalle National Bank), as Trustee For
Nomura Asset Securities Corporation,
Commercial Mortgage Pass-Through
Certificates, Series 1998-D6
By: Capmark Finance Inc., a California
corporation, its authorized agent
By: __________________________SEAL]
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
SERVICER:
---------
CAPMARK FINANCE INC., a California corporation
By:______________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
[SIGNATURES CONTINUE ON NEXT PAGE]
XXXXX FARGO BANK, N.A., in its capacity as Securities Intermediary and Custodian
(as defined in the Pledge Agreement) with respect to the Pledged Collateral,
acknowledges the terms and conditions of, and the transactions effected by, this
Defeasance Assignment, Assumption and Release Agreement, as of the date first
above written.
XXXXX FARGO BANK, N.A.,
BY:_______________________________
Name:_____________________________
Title:____________________________
