EXHIBIT 10.15
ASSIGNMENT AND ASSUMPTION
AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement") is made and
entered into as of this 1st day of July, 2003 (the "Effective Date") by and
between ARBOR COMMERCIAL MORTGAGE LLC (the "Assignor"), and Arbor Realty Limited
Partnership (the "Assignee").
WHEREAS, the. Assignor and Nomura Credit & Capital, Inc. (the "Buyer")
have entered into a Master Repurchase Agreement dated as of November 18, 2002,
as amended as of July 1, 2003 (the "Repurchase Agreement") between the Assignor
and the Buyer.
WHEREAS, the Repurchase Agreement permits the Assignor to assign its
rights and obligations under the Repurchase Agreement as provided thereunder;
WHEREAS, the Assignor, the Buyer and U.S. Bank National Association (the
"Custodian") have entered into a Custodial Agreement dated as of November 18,
2002 (the "Custodial Agreement") for the custody, administration and servicing
of Loans underlying Purchased Assets;
WHEREAS, Section 7.7 of the Custodial Agreement permits the Assignor to
assign its rights and obligations under the Custodial Agreement with the prior
written consent of the other parties thereto; and
WHEREAS, on or prior to the Effective Date, the Assignor will contribute
to the Assignee the portfolio of Loans listed in Schedule 1 hereto, which Loans
have an aggregate principal balance of $86,603,234.00 on the Effective Date (the
"Contributed Loans") and, (ii) the Assignor will assign to the Assignee all its
rights and obligations under the Repurchase Agreement, the Custodial Agreement
and the other Program Documents (other than its rights and obligations to act as
Servicer for the Loans), and the Assignee has agreed to accept the pledge,
assignment and transfer of the foregoing.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
Capitalized terms used and not otherwise defined herein shall have the
meaning assigned thereto in the Repurchase Agreement or the Custodial Agreement,
as applicable.
Section 1. AGREEMENTS
1. Contribution, Assignment and Agreements. On or prior to the
Effective Date, the Assignor shall contribute to the Assignee the
Contributed Loans, and the Assignor shall assign to the Assignee all
of its respective rights,
privileges, and any other interests, and obligations, as Seller
under the Repurchase Agreement, the Custodial Agreement and the
other Program Documents; provided that (subject to the second
proviso below) the Assignor shall not assign to the Assignee any
interest in the loan on the Professional Tower (an office building
located in Miami, Florida) (the "Tower Loan"), which Tower Loan has
an outstanding principal balance of $10,584,492 on the Effective
Date, and is collateralized by a $8,800,000 Bridge Loan and a
$1,784,792 Mezzanine Loan; and provided further that the Repurchase
Agreement shall be deemed to remain in effect with respect to the
Tower Loan from the Effective Date through the date on which the
repurchase transactions contemplated by the letter agreement dated
July 1, 2003 (the "Letter Agreement") by the Assignor, the Assignee
and certain of their Affiliates are consummated. So long as any
Purchased Asset shall remain subject to the Repurchase Agreement,
the Assignor shall continue to act as Servicer with respect to the
Loans underlying such Purchased Asset for the benefit of Buyer
pursuant to and in accordance with the terms of the Custodial
Agreement, the Repurchase Agreement and the other Program Documents.
Following the repurchase of a Purchased Asset by the Assignee from
the Buyer on or after the Effective Date, and the termination of the
Repurchase Agreement with respect to such Purchased Asset, the
Servicer shall continue to act as Servicer with respect to the Loans
underlying such Purchased Asset, pursuant to and in accordance with
the terms of the Custodial Agreement. To the extent of any
inconsistency between the Custodial Agreement and the Services
Agreement dated as of July 1, 2003 among Arbor Realty Trust, Inc.,
the Assignee and the Assignor, the terms of the Custodial Agreement
shall govern the servicing of Loans by the Assignor. The Buyer and
the Custodian hereby consent to such assignment.
2. Purchased Assets. The Assignor hereby agrees to take all action
necessary to amend any existing, or file any new, Uniform Commercial
Code financing statements, necessary to maintain the first priority
security interest of the Buyer to and in the Collateral. On and as
of the Effective Date, the Assignee shall assume liability for any
payment or other obligations under the Repurchase Agreement and the
other Program Documents, including but not limited to, its
obligations relating to Margin Calls, repurchase of Purchased
Assets, and the payment of the expenses of the Custodian, and the
Assignor, in its capacity as Servicer for the Loans. In addition, on
and as of the Effective Date, the Assignee shall become entitled to
any Income pursuant to, and as permitted by, the Repurchase
Agreement and the other Program Documents.
3. Assumption. The Assignee hereby accepts the foregoing assignment,
and hereby assumes and agrees to pay, perform or otherwise provide
for any and all duties and obligations of the Assignor, as Seller,
under and in accordance with the terms of the Repurchase Agreement,
the Custodial Agreement and the other Program Documents.
4. Further Assurances and Agreements. The Assignor and the Assignee
further agree that, upon the reasonable request of the other or the
Buyer, each will execute, acknowledge and deliver all such
additional documents and instruments as may be reasonably necessary
to carry out the purposes of this Agreement.
The Assignor and the Assignee further understand and agree that the
Events of Default set forth in Sections 18(q) and (r) of the
Repurchase Agreement relating to change in Control and net worth
have been amended as of July 1, 2003, pursuant to and as provided by
Amendment No. One to the Repurchase Agreement.
Section 2. REPRESENTATIONS AND WARRANTIES
Each of the Assignor and the Assignee represents as of the Effective Date
as follows:
1. The Assignor and the Assignee each represents and warrants that the
agreement attached hereto as Exhibit A is a true and accurate copy
of the Repurchase Agreement. The Assignor represents and warrants
that the Repurchase Agreement is in full force and effect as of the
date hereof and the provisions of such Repurchase Agreement have not
been waived, amended or modified (other than as therein provided),
nor have notices of termination been given thereunder.
2. The Assignor and the Assignee each represents and warrants that the
agreement attached hereto as Exhibit B is a true and accurate copy
of the Custodial Agreement. The Assignor represents and warrants
that the Custodial Agreement is in full force and effect as of the
date hereof and the provisions of such Custodial Agreement have not
been waived, amended or modified (other than as therein provided),
nor have notices of termination been given thereunder.
3. Arbor Commercial Mortgage LLC, as Servicer, and the Assignee, as
Seller pursuant to the Repurchase Agreement jointly and severally
make, to the Buyer, Agent and each subsequent purchaser of the
Loans, the representations and warranties set forth in Appendix A to
the Custodial Agreement, and shall continue to make such
representations as required under the Repurchase Agreement, the
Custodial Agreement and the other Program Documents.
The Assignor further warrants and represents to, and covenants with, the
Assignee as of the date hereof as follows:
1. The Assignor is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
2. The Assignor has full power and authority to execute, deliver and
perform its obligations under this Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions
contemplated by this Agreement is in the ordinary course of the
Assignor's business and will not conflict with, or result in a
breach of, any of the terms, conditions or provisions of the
Assignor's certificate of formation or operating agreement or any
legal restriction, or any material agreement or instrument to which
the Assignor is now a party or by which it is bound, or result in
the violation of any law, rule, regulation, order, judgment or
decree to which the Assignor or its property is subject. The
execution, delivery and performance by the Assignor of this
Agreement and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary
action on the part of the Assignor. This Agreement has been duly
executed and delivered by the Assignor and, upon the due
authorization, execution and delivery by the Assignor and the
Assignee, will constitute the valid and legally binding obligation
of the Assignor enforceable against the Assignor in accordance with
its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, and by
general principles of equity regardless of whether enforceability is
considered in a proceeding in equity or at law;
3. No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity is
required to be obtained or made by the Assignor in connection with
the execution, delivery or performance by the Assignor of this
Agreement, or the consummation by it of the transactions
contemplated hereby; and
4. There is no action, suit, proceeding, investigation or litigation
pending or, to the Assignor's knowledge, threatened, which either in
any instance or in the aggregate, if determined adversely to the
Assignor, would adversely affect the Assignor's execution or
delivery of, or the enforceability of, this Agreement, or the
Assignor's ability to perform its obligation under this Agreement.
The Assignee further warrants and represents to, and covenants with, the
Assignor as of the date hereof as follows:
1. The Assignee is a limited partnership duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its formation and has all requisite power and authority to acquire,
own, sell, repurchase and otherwise dispose of Purchased Assets;
2. The Assignee has full power and authority to execute, deliver and
perform its obligations under this Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions
contemplated by
this Agreement is in the ordinary course of the Assignee's business
and will not conflict with, or result in a breach of, any of the
terms, conditions or provisions of the Assignee's limited
partnership agreement or any legal restriction, or any material
agreement or instrument to which the Assignee is now a party or by
which it is bound, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Assignee or its
property is subject. The execution, delivery and performance by the
Assignee of this Agreement and the consummation by it of the
transactions contemplated hereby, have been duly authorized by all
necessary limited partnership action on the part of the Assignee.
This Agreement has been duly executed and delivered by the Assignee
and, upon the due authorization, execution and delivery by the
Assignor and the Assignee, will constitute the valid and legally
binding obligation of the Assignee enforceable against the Assignee
in accordance with its terms except as enforceability may be limited
by bankruptcy, reorganization, insolvency, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at
law;
3. No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity is
required to be obtained or made by the Assignee in connection with
the execution, delivery or performance by the Assignee of this
Agreement, or the consummation by it of the transactions
contemplated hereby;
4. There is no action, suit, proceeding, investigation or litigation
pending or, to the Assignee's knowledge, threatened, which either in
any instance or in the aggregate, if determined adversely to the
Assignee, would adversely affect the Assignee's execution or
delivery of, or the enforceability of, this Agreement, or the
Assignee's ability to perform its obligation under this Agreement;
5. The Assignee agrees to be bound by all of the terms, covenants and
conditions of the Repurchase Agreement, the Custodial Agreement and
the other Program Documents;
6. The Assignee is solvent and will not be rendered insolvent by the
transactions contemplated by this Agreement and after giving effect
to such transactions, the Assignee will not be left with an
unreasonably small amount of capital with which to engage in its
business; and
7. The Assignee is not required to be registered as an "investment
company" as defined under the Investment Company Act nor as an
entity under the control of an "investment company" as defined under
the Investment Company Act.
Section 3. CONDITIONS PRECEDENT
As conditions precedent to the execution and delivery of this Agreement
and the issuance by the Buyer of its written consent to the assignment by the
Assignor of all its rights and obligations as Seller under the Repurchase
Agreement to the Assignee, the Buyer shall have received, in form satisfactory
to the Buyer:
1. This Agreement, duly authorized and executed by the Assignor, the
Assignee and the Custodian;
2. Evidence that all other actions necessary or, in the opinion of the
Buyer, desirable to perfect and protect the Buyer's interest in the
Purchased Assets and other Collateral have been taken, including,
without limitation, the filing of new, or the amendment of existing,
Uniform Commercial Code financing statements on Form UCC-1 or other
applicable Form;
3. Written confirmation by the Assignee, which shall be accompanied by
a certificate of an authorized officer of the Assignor that (i) the
Assignor has made, and the Assignee has received, the Contributed
Loans, (ii) the offering described in that Preliminary Offering
Memorandum dated June 27, 2003 with respect to the stock offering by
Arbor Realty Trust, Inc. has been completed, and that a portion of
the proceeds thereof has been contributed by Arbor Realty Trust,
Inc. in cash to the Assignee, and that such cash contribution has
been deposited in that certain bank account no. 7424022551 at North
Fork Bank and (iii) any other related required payments under
paragraphs (i) and (ii) above have been made and received by the
appropriate parties;
4. An opinion of Cullen and Xxxxxx, counsel to the Assignee, as to the
transactions contemplated by this Agreement, in a form satisfactory
to the Buyer;
5. A certified copy of the Assignee's limited partnership resolutions
approving this Agreement and the Program Documents and Transactions
thereunder (either specifically or by general resolution), and all
documents evidencing other necessary limited partnership action or
governmental approvals as may be required in connection with this
Agreement and the Program Documents;
6. An incumbency certificate of the Seller's general partner certifying
the names, true signatures and titles of the Seller's
representatives duly authorized to request Transactions hereunder
and to execute this Agreement and the Program Documents, as
applicable, and the other documents to be delivered hereunder;
7. No Default or Event of Default shall have occurred, both immediately
before and after the execution and delivery of this Agreement and
the Program Documents by the Assignor and/or the Assignee, as
applicable;
8. Arbor Realty Trust, Inc. shall have issued a Guaranty in the form
attached hereto as Exhibit A to guarantee the Obligations of the
Assignee under the Repurchase Agreement and any other obligations of
the Assignee under this Agreement; and
9. As of the close of business on the Effective Date, the Assignee
shall have a new worth of at least $140 million.
Section 4. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, and all of which, taken together, shall constitute
one and the same instrument, which may be sufficiently evidenced by one
counterpart.
Section 5. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and permitted assignees.
Section 6. APPLICABLE LAW
This Agreement shall be governed by, interpreted under and construed in
accordance with the laws of the state of New York, without regard to the
conflicts of law principles thereof.
(Signature Page Follows)
IN WITNESS WHEREOF, the Assignor and the Assignee have executed and
delivered this Agreement as of the day and year first above written.
ARBOR COMMERCIAL MORTGAGE LLC
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxx
-------------------------------
Title: Vice President, Treasurer
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ARBOR REALTY LIMITED
PARTNERSHIP
By: /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxxxx X. Xxxxxx
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Title: Chief Financial Officer
-------------------------------
Acknowledged and Agreed:
NOMURA CREDIT & CAPITAL, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
-------------------------------
Title: President
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U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-------------------------------
Title: Vice President
-------------------------------
S-1
Schedule 1
List of Assigned Loans
NOMURA ASSETS TRANSFERRING TO ART
PROPERTY TYPE UPB AMOUNT FINANCED
-------- ---- --- ---------------
CDS-Portfolio Mezz $4,991,001.00 $3,743,250.75
Xxxxxx Mezz $10,800,000.00 $8,468,177.40
Scron II Mezz $8,500,000.00 $6,664,769.25
Grand Plaza Bridge $25,382,233.00 $20,281,974.40
Tropical Gardens Bridge $8,800,000.00 $7,040,000.00
Dylan Hotel Bridge $14,000,000.00 $11,900,000.00
Concord & Xxxxx Bridge $5,000,000.00 $4,000,000.00
Palmetto Village Bridge $9,130,000.00 $7,304,000.00
TOTAL $86,603,234.00 $69,402,171.80
