This instrument prepared by and when recorded return to: Xxxxxx X. Xxxxx, Esq.
Bilzin Xxxxxxx Xxxx
Price & Xxxxxxx LLP
0000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
NOTE AND MORTGAGE ASSUMPTION AGREEMENT
(ASW 1995-C1; LOAN NO. 009590229)
THIS NOTE AND MORTGAGE ASSUMPTION AGREEMENT (this "Agreement") dated as
of February 24, 1999, among LASALLE NATIONAL BANK FOR THE BENEFIT OF CERTIFICATE
HOLDERS OF AMERICAN SOUTHWEST FINANCIAL SECURITIES CORP., COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 1995-C1 ("Lender"), having an address at 000
X. XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attn: Xxx Xxxxx Re: ASW
1995-C I, Loan #009590229; MAD RIVER PROPERTIES LTD., an Ohio limited liability
company, successor in interest by merger to Mad River Ltd., an Ohio limited
partnership, having an address at c/o The Xxxxxxx Realty Co., I 0 Xxxx Xxxxxxxx
Xxxxxxxx, 0xx Xxxxx, Xxxxxx, Xxxx 00000 ("Original Borrower"); and ACADIA MAD
RIVFR PROPERTY LLC, a Delaware limited liability company, having an address at
00 Xxxxxxxxx Xxxxxxxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 and having a Federal
Taxpayer Identification Number of 00-0000000 ("New Borrower"). Original Borrower
and New Borrower are hereinafter sometimes collectively referred to as "Borrower
Parties."
PRELIMINARY STATEMENT
A. Original Borrower is the current owner of fee title to that certain
real property (the "Land") and the buildings and improvements thereon (the
"Improvement "), located in the Township of Miami, County of Xxxxxxxxxx, State
of Ohio, more particularly described in Exhibit "A" attached hereto and made a
part hereof commonly referred to as the "Mad River Station Shopping Center" (the
Land and the Improvements are hereinafter sometimes collectively referred to as
the "Project").
B. Lender is the current owner and holder of a loan ("Loan") in the
original principal amount of $8,000,000 evidenced by that certain Promissory
Note dated as of May 23, 1995 (the Promissory Note, as same may be renewed,
consolidated, replaced, extended, substituted, amended or otherwise modified,
shall hereinafter be referred to as the "Note") made by Original Borrower in
favor of Column Financial, Inc., a Delaware corporation ("Original Lender"), in
the principal amount of $8,000,000 and secured by, among other things, (i) an
Open-End Mortgage and Security Agreement dated as of May 2' ), 1995 (the
"Mortgage") made by Original Borrower for the benefit of Original Lender and
encumbering the Project, recorded on May 23, 1995 under Microfiche No.
95-1322BOI of the Records of the County of Xxxxxxxxxx, State of Ohio (the
"Records"); (ii) an Assignment of Leases and Rents dated as of May 23, 1995 (the
"Assignment of Rents") made by Original Borrower for the benefit of Original
Lender and recorded on May 23, 1995, under Mortgage Microfiche No. 95-1323AO6 of
the Records; (iii) those certain UCC-1 Financing Statements (the "Financing
Statements") reflecting Original Borrower, as Debtor and Original Lender, as
Secured Party recorded under Mortgage Microfiche Nos.95-173AO5 and 95-173AI I of
the Records and filed with the Ohio Secretary of State on May 25, 1995 under
File Number AL88563; (iv) a Hazardous Substances Indemnity Agreement dated as of
May 23, 1995 ("Hazardous Indemnity") made by Original Borrower and Xxxxxxx
Xxxxxx ("Welprin") in favor of Original Lender; and (v) an Indemnity and
Guaranty Agreement dated as of May 23, 1995 ("Guaranty") made by Weprin in favor
of Original Lender.
1
C. The Note, the Mortgage, the Assignment of Rents, the Financing
Statements, the Hazardous Indemnity, the Guaranty and any and all other
agreements, documents, and other instruments evidencing, securing or in any
manner relating to the Loan shall hereinafter be collectively referred to as the
"Loan Documents."
D. New Borrower desires to purchase the Project from Original Borrower
and to assume all of Original Borrower's obligations under the Loan Documents.
E. A sale of the Project to and the assumption of the Loan by a third
party without the consent of the holder of the Mortgage is prohibited by the
terms thereof.
F. As required by the Loan Documents, the Lender has agreed to permit
the Original Borrower to sell the Project to the New Borrower and the New
Borrower to assume all of Original Borrower's obligations under the Loan
Documents.
In consideration of $1 0.00 paid by each of the parties to the other,
the mutual covenants set forth below, and other good and valuable consideration,
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE 1
ACKNOWLEDGMENTS, WARRANTIES AND REPRESENTATIONS
1.1 Original Borrower Representations. As a material inducement to
Lender to enter into this Agreement, to consent to the sale of the Project to
New Borrower, and to permit the New Borrower to assume all of Original
Borrower's obligations under the Loan Documents, Original Borrower acknowledges,
represents, warrants and agrees to and with Lender as follows:
(a) Authority of Original Borrower. 0riginal Borrower is a
duly formed, validly existing limited liability company formed and in good
standing under the laws of the State of Ohio. Xxxxxxx X. Xxxxxx ("Original
Borrower Manager") is the sole manager of Original Borrower. The execution,
delivery, and performance of this Agreement by Original Borrower has been duly
and properly authorized pursuant to all requisite company action. Xxxxxxx X.
Xxxxxx, as President of Original Borrower, acting alone without the joinder of
any member or other officer of Original Borrower or any other party has the
power and authority to execute this Agreement on behalf of Original Borrower and
to duly bind Original Borrower under this Agreement. The execution, delivery and
performance of this Agreement by Original Borrower does not and will not (i)
violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to Original Borrower or the operating agreement or other
organizational documents of Original Borrower or (ii) result in a breach or
constitute or cause a default under any indenture, agreement, lease or
instrument to which Original Borrower is a party or by which the Project may be
bound or affected.
(b) Compliance with Laws. Original Borrower has not received
any written notice from any governmental entity claiming that Original Borrower
or the Project is not presently in compliance with any laws, ordinances, rules
and regulations bearing upon the use and operation of the Project, including,
without limitation, any notice relating to zoning laws or building codes or
regulations.
2
(c) Rent Roll. The Rent Roll ("Rent Roll") attached hereto and
made a part hereof as Exhibit "B" is a true, complete and accurate summary of
all tenant leases affecting the Project as of the date of this Agreement.
(d) Title to Project and Legal Proceedings. Original Borrower
is the current owner of fee title in the Project. There are no pending or
threatened suits, judgments, arbitration proceedings, administrative claims,
executions or other legal or equitable actions or proceedings against Original
Borrower, Original Borrower Manager or the Project, or any pending or threatened
condemnation proceedings or annexation proceedings affecting the Project, or any
agreements to convey any portion of the Project, or any rights thereto to any
person or entity not disclosed in this Agreement, including, without limitation,
any government or governmental agency,
(e) Other Loans. Neither Original Borrower nor any member of
Original Borrower or shareholder, director, any principal or other affiliate of
Original Borrower or member of Original Borrower has any other loans from
Original Lender, Lender or any other conduit lender or any other loans payable
to Midland Loan Services, as servicer.
(f) Loan Documents. The Loan Documents constitute valid and
legally binding obligations of Original Borrower. Original Borrower has no
defenses, setoffs, claims, counterclaims or causes of action of any kind or
nature whatsoever against Lender or any of Lender's officers, directors,
servicers or predecessors in interest with respect to (i) the Loan, (ii) the
Loan Documents, (iii) any other documents or instruments now or previously
evidencing, securing or in any way relating to the Loan, (iv) the administration
or funding of the Loan or (v) the development, operation or financing of the
Project. To the extent Original Borrower would be deemed to have any such
defenses, setoffs, claims, counterclaims or causes of action. Original Borrower
waives and relinquishes them as of the date hereof.
(g) Repair and Remediation. All maintenance, repairs and/or
remedial or corrective work required under that the Repair Letter and in Exhibit
"C" of the Mortgage has been completed in full compliance with such the Repair
Letter and the terms of Exhibit "C".
(h) RePair and Remediation Reserve. Original Borrower has
completed, performed, remediated and corrected to the satisfaction of Original
Lender and as necessary to bring the Property into compliance with all
applicable laws, ordinances, rules and regulations, each of the items described
in that certain Required Repair Letter from Original Lender to Original Borrower
dated March 23, 1995, all as required by Section C-1 of the Mortgage.
(i) Reaffirmation and Release. Original Borrower acknowledges
and agrees that nothing contained in this Agreement shall release Original
Borrower from any of its obligations, agreements, duties and liabilities under
the Loan Documents arising prior to the date hereof, provided, however, by its
execution hereof, Lender hereby releases Original Borrower for any acts or
events occurring or obligations arising under the Loan Documents (with the
exception of the Hazardous Indemnity, the provisions for the release of Original
Borrower being set forth in the Reaffirmation of Hazardous Substances Indemnity
and Consent of Indemnitors being executed in connection herewith) after the date
of the closing of the purchase and sale of the Property and the assumption of
the Loan by New Borrower.
1.2 Acknowledgments, Warranties and Representations of New Borrower. As
a material inducement to Lender to enter into this Agreement, to consent to the
sale of the Project to New Borrower and to permit the New Borrower to assume all
of Original Borrower's obligations under the Loan Documents, New Borrower
acknowledges, warrants, represents and agrees to and with Lender as follows:
3
(a) Authority of New Borrower. New Borrower is a validly
existing limited liability company duly formed and in good standing under the
laws of the State of Delaware and is in the process of qualifying to transact
business in the State of Ohio. Acadia Realty Limited Partnership, a Delaware
limited partnership ("New Borrower Member"), is the sole member of New Borrower.
The execution and delivery of, and performance under, this Agreement by New
Borrower has been duly and properly authorized pursuant to all requisite company
action. New Borrower Member, acting alone without the joinder of any other
member of New Borrower or any other party has the power and authority to execute
this Agreement on behalf of and to duly bind New Borrower under this Agreement
and the Loan Documents. Neither the execution, delivery or performance of this
Agreement nor the performance under the Loan Documents by New Borrower will (i)
violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to New Borrower or the articles of organization or operating
agreement of New Borrower or (ii) result in a breach of or constitute or cause a
default under any indenture, agreement, lease or instrument to which New
Borrower is a party or by which the Project may be bound or affected.
(b) Authority of New Borrower Member. The execution and
delivery of and performance under this Agreement by New Borrower Member, as the
sole member and on behalf of New Borrower has been duly and properly authorized
pursuant to all requisite partnership action. Xxxxxxx X. Xxxxxxxxx as President
of Arcadia Realty Trust, as the sole general partner ("General Partner") of New
Borrower Member, acting alone, without the joinder and consent of any other
officer or director of General Partner or any other party has the power and
authority to execute this Agreement on behalf of and to duly bind New Borrower
Member and New Borrower under this Agreement and the Loan Documents. The
execution, delivery or performance of this Agreement by New Borrower Member will
not (i) violate any provision of any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award presently in effect having
applicability to New Borrower Member or (ii) result in a breach of or constitute
or cause a default under any indenture, agreement, lease or instrument to which
New Borrower Member is a party or by which the Project may be bound or affected.
(c) Compliance with Organizational Documents. New Borrower is
in full compliance with, and its organizational documents do not conflict with,
any requirements of Section 1.33 of the Loan Documents. New Borrower is not in
violation of, and will not in the future violate, any of the terms, covenants
and provisions of its organizational documents.
(d) Rent Roll. To the best knowledge of New Borrower, the Rent
Roll ("Rent Roll") attached hereto and made a part hereof as Exhibit "B" is a
true, complete and accurate summary of all tenant leases affecting the Project
as of the date of this Agreement.
(e) Financial Statement. The I O-Q Report of Acadia Realty
Trust ("Acadia") for the period ending September 30, 1998 (the "Financial
Statements") which has been previously delivered to Lender is true, complete and
accurate in every material respect and accurately represents the financial
condition of Acadia as of the date thereof. There has not been any material
adverse change between the date of said Financial Statement and the date of this
Agreement. New Borrower acknowledges that said Financial Statement has been
provided to Lender to induce Lender to enter into this Agreement and is being
relied upon by Lender for such purposes.
4
(f) Title to Project and Legal proceedings. To the best
knowledge of New Borrower, there are no pending or threatened suits, judgments,
arbitration proceedings, administrative claims, executions or other legal or
equitable actions or proceedings against any of New Borrower or the Project, or
any pending or threatened condemnation proceedings or annexation proceedings
affecting the Project, or any agreements to convey any portion of the Project,
or any rights thereto to any person or entity, including, without limitation,
any government or governmental agency.
(g) Other Loans. Neither New Borrower nor any member of New
Borrower or any shareholder, director, principal or other affiliate of New
Borrower or any partner or member of New Borrower has any other loans from
Original Lender, Lender or any other conduit lender or any other loans payable
to Midland Loan Services, as servicer.
(h) Management of Project. New Borrower has engaged Hutensky
Group, LLC ("Manager") to manage the Project, pursuant to a written Management
Agreement, a true and correct copy of which has been provided to Lender
("Management Agreement"). New Borrower further covenants and agrees to comply
with all terms and conditions of the Mortgage concerning the management of the
Project, including without limitation the obligation to obtain Lender's consent
to the management of the Project by any entity other than Manager.
0) Loan Documents. As of the date hereof, the Loan Documents
constitute valid and legally binding obligations of New Borrower enforceable
against New Borrower and the Project in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar statutes, rules, regulations or other laws affecting the
enforcement of creditors' rights and remedies generally. New Borrower has no
defenses, setoffs, claims, counterclaims or causes of action of any kind or
nature whatsoever against Lender or any of Lender's officers, directors,
servicers or predecessors in interest with respect to (i) the Loan, (ii) the
Loan Documents, (iii) any other documents or instruments now or previously
evidencing, securing or in any way relating to the Loan, (iv) the administration
or funding of the Loan or (v) the development, operation or financing of the
Project. To the extent New Borrower would be deemed to have any such defenses,
setoffs, claims, counterclaims or causes of action, New Borrower knowingly
waives and relinquishes them. New Borrower acknowledges that it has received
copies of all of the Loan Documents.
(k) ERISA. New Borrower covenants and agrees that for so long
as the loan is outstanding, unless Lender shall have previously consented in
writing, (i) New Borrower will take no action that would cause it to become an
"employee benefit plan" as defined in 29 C.F.R. Section 2510.3-1 0 1, or "assets
of a governmental plan" subject to regulation under the state statutes, and (ii)
New Borrower will not sell, assign or transfer the Project, or any portion
thereof or interest therein, to any transferee that does not execute and deliver
to Lender its written assumption of the obligations of this covenant.
(1) Qualification to do Business in Ohio. Within 45 days from
the date hereof, New Borrower shall submit to Lender satisfactory evidence that
it has qualified to transact business in the State of Ohio.
1.3 Acknowledgments, Warranties and Representations of Borrower
Parties. As a material inducement to Lender to enter into this Agreement, to
consent to the sale of the Project to New Borrower and to permit the New
Borrower to assume the indebtedness due under the Loan and all of Original
Borrower's other obligations under the Loan Documents, Borrower Parties
acknowledge, warrant, represent and agree to and with Lender as follows:
5
(a) Indebtedness. As of February 17, 1999, the outstanding
principal balance of the Loan which is being assumed by New Borrower is
$7,661,302.15. The following escrow and reserve balances are being held by
Lender as of the date hereof. (i) tax escrow balance of $169,287.82 ($117,494.67
of which will be disbursed by Lender to pay the current taxes due) ; (ii)
insurance escrow balance of $19,679.42 and (iii) leasing reserve balance of
$75,675.1 1. Original Borrower and New Borrower acknowledge and agree that
Lender will continue to hold the escrow and reserve balances for the benefit of
New Borrower in accordance with the terms of the Loan Documents. In the event of
an error or omission of the foregoing information, Lender does not in any way
prejudice its rights and entitlement to all monies lawfully due Lender under the
terms of the Loan Documents.
(b) Compliance with Laws. All permits, licenses, franchises,
or other evidences of authority to use and operate the Project as it is
presently being operated and as contemplated by the Loan Documents are current,
valid and in full force and effect.
(c) No Default. To Borrower Parties' knowledge, no event, fact
or circumstance has occurred or failed to occur which constitutes, or with the
lapse or passage of time, giving of notice or both, could constitute a default
under Section 2.1 of the Mortgage.
(d) Bankruptcy. Neither of Borrower Parties has any present
intent to (i) file any voluntary petition under any Chapter of the Bankruptcy
Code, Title I 1, U.S.C.A. ("Bankruptcy Code"), or in any manner to seek any
proceeding for relief, protection, reorganization, liquidation, dissolution or
similar relief for debtors ("Debtor Proceeding") under any local, state, federal
or insolvency law or laws providing relief for debtors or (ii) directly or
indirectly to cause any involuntary petition under any Chapter of the Bankruptcy
Code to be filed against either of Borrower Parties or any member of either of
Borrower Parties, or (iii) directly or indirectly to cause the Project or any
portion or any interest of either of Borrower Par-ties in the Project to become
the property of any bankrupt estate or the subject of any Debtor Proceeding.
(e) Further Assurances. Borrower Parties shall execute and
deliver to Lender such agreements, instruments, documents, financing statements
and other writings as may be requested from time to time by Lender to perfect
and to maintain the perfection of Lender's security interest in and to the
Project, and to consummate the transactions contemplated by or in the Loan
Documents and this Agreement.
1.4 Acknowledgments, Representations and Warranties of Lender. By its
execution hereof, Lender confirms that to Lender's actual knowledge, the amounts
set forth in Section 1.3(a) above are correct and Lender has not issued any
written notices of default to Original Borrower that have not been cured.
1.5 Reaffirmations. Original Borrower reaffirms and, to the best of New
Borrower's knowledge, New Borrower affirms and confirms the truth and accuracy
of all representations and warranties set forth in the Loan Documents as if made
on the date hereof.
6
ARTICLE 2
COVENANTS OF BORROWER PARTIES
Borrower Parties covenant and agree with Lender that:
2.1 Assumption of Loan. New Borrower hereby assumes the indebtedness
due under the Loan and all of Original Borrower's other obligations, as grantor,
trustor, mortgagor, borrower, indemnitor, guarantor, trustor or maker, as the
case may be, under the Loan Documents to the same extent as if New Borrower had
signed such instruments, rather than Original Borrower. New Borrower agrees to
comply with and be bound by all the terms, covenants and agreements, conditions
and provisions set forth in the Loan Documents.
2.2 Transfer Fee. Simultaneously with the execution hereof, Original
Borrower and/or New Borrower shall pay Lender a transfer fee equal to $7,500.00
and an administrative fee of $125.00.
2.3 Release and Covenant Not To Xxx. Borrower Parties, jointly and
severally, on behalf of themselves and all of their respective heirs, successors
and assigns, remise, release, acquit, satisfy and forever discharge Lender or
any of Lender's predecessors in interest and any subsidiary or affiliate of
Lender or any of Lender's predecessors in interest, and all of the past, present
and future officers, directors, contractors, employees, agents, servicers
(including, but not limited to, Lennar Partners, Inc.), attorneys,
representatives, participants, successors and assigns of Lender and Lender's
predecessors in interest (collectively, "Lender Parties") from any and all
manner of debts, accountings, bonds, warranties, representations, covenants,
promises, contracts, controversies, agreements, liabilities, obligations,
expenses, damages, judgments, executions, actions, inactions, claims, demands
and causes of action of any nature whatsoever, at law or in equity, known or
unknown, either now accrued or subsequently maturing, which any of Borrower
Parties now has or hereafter can, shall or may have by reason of any matter,
cause or thing, from the beginning of the world to and including the date of
this Agreement, including, without limitation, matters arising out of or
relating to (a) the Loan, including, but not limited to, its administration or
funding, (b) the Loan Documents, (c) the Project or its development, financing
and operation, and (d) any other agreement or transaction between any of
Borrower Parties and any of Lender Parties. Borrower Parties, jointly and
severally, for themselves and all of their respective heirs, successors and
assigns, covenant and agree never to institute or cause to be instituted or
continue prosecution of any suit or other form of action or proceeding of any
kind or nature whatsoever against any of Lender Parties by reason of or in
connection with any of the foregoing matters, claims or causes of action.
As further consideration for the agreements herein contained, Borrower
Parties hereby agree, represent and warrant that the matters released in this
Agreement are not limited to matters which are known or disclosed. In this
connection, Borrower Parties hereby agree, represent, and warrant that they
realize and acknowledge that factual matters now unknown to one or more of the
Borrower Parties may have given or may hereafter give rise to causes of action,
claims, demands, debts, controversies, demands, costs, losses and expenses which
are presently unknown, unanticipated and unsuspected, and Borrower Parties
further agree, represent and warrant and that the release herein contained has
been negotiated and agreed upon in light of that realization and that Borrower
Parties nevertheless hereby intend to release, discharge and acquit all parties
so released from any such unknown claims.
7
2.4 Payment of Transaction Costs and Expenses. Borrower Parties shall
pay at the time of execution of this Agreement by Lender: (i) the legal fees and
disbursements of Lender's counsel, Bilzin Xxxxxxx Xxxx Price & Xxxxxxx LLP, in
connection with the preparation of this Agreement and the transactions
contemplated in this Agreement; (ii) all recording costs and documentary stamps,
if any, due upon the recording of this Agreement; and (iii) the costs of
updating Lender's policy of title insurance insuring the Mortgage to a current
date and endorsing such policy to include this Agreement in the description of
the Mortgage, or the cost of obtaining a new Lender's title insurance policy
acceptable to Lender insuring the Mortgage as affected by this Agreement.
ARTICLE 3
ADDITIONAL PROVISIONS
3.1 Consent of Lender. Subject to the terms of this Agreement, Lender
hereby consents to the sale of the Project to and the assumption of the Loan by
New Borrower. Borrower Parties agree that this Agreement shall not be deemed an
agreement by Lender to consent to any other sale or conveyance of the Project or
assumption of the Loan. Lender's consent provided herein and New Borrower's
assumption of the Loan shall not modify or alter in any manner the non-recourse
provisions set forth in any of the Loan Documents as they currently apply to
Original Borrower and shall like-wise apply to New Borrower.
3.2 Additional Documents. Contemporaneously with the execution and
delivery of this Agreement and as a material inducement to Lender to enter into
this Agreement, (a) New Borrower and Original Borrower shall have executed and
delivered to Lender UCC-3 Statements of Change amending the Financing Statements
for recording in the Records and filing with the Secretary of' State of Ohio to
add New Borrower as an additional debtor; (b) New Borrower, and New Borrower
Member shall have executed and delivered to Lender a Hazardous Substances
Indemnity Agreement in a form acceptable to Lender; (c) New Borrower Member
shall have executed and delivered to Lender an Indemnity and Guaranty Agreement
in a form acceptable to Lender; (d) Original Borrower and Weprin have executed
and delivered to Lender a Reaffirmation of Hazardous Substances Indemnity
Agreement and Consent of Indemnitors in a form acceptable to Lender; (e) Weprin
has executed and delivered to Lender a Reaffirmation of Indemnity and Guaranty
Agreement and Consent of Indemnitor in a form acceptable to Lender; and (t)
Manager and New Borrower shall have executed a Manager's Consent and
Subordination of Management Agreement, in a form acceptable to Lender.
3.3 References to Loan Documents. All references to the term "Loan
Documents" in the Mortgage and the Assignment of Rents shall hereinafter mean
and refer to (i) all of the Loan Documents described therein, (ii) this
Agreement and (iii) any and all other documents executed in connection with or
otherwise pertaining to this Agreement.
ARTICLE 4
MISCELLANEOUS PROVISIONS
4.1 No Limitation of Remedies. No right, power or remedy conferred upon
or reserved to or by Lender in this Agreement is intended to be exclusive of any
other right, power or remedy conferred upon or reserved to or by Lender under
this Agreement, the Loan Documents or at law, but each and every remedy shall be
cumulative and concurrent, and shall be in addition to each and every other
right, power and remedy given under this Agreement, the Loan Documents or now or
subsequently existing at law.
8
4.2 No Waivers. Except as otherwise expressly set forth in this
Agreement, nothing contained in this Agreement shall constitute a waiver of any
rights or remedies of Lender under the Loan Documents or at law. No delay or
failure on the part of any party hereto in the exercise of any right or remedy
under this Agreement shall operate as a waiver, and no single or partial
exercise of any right or remedy shall preclude other or further exercise thereof
or the exercise of any other right or remedy. No action or forbearance by any
party hereto contrary to the provisions of this Agreement shall be construed to
constitute a waiver of any of the express provisions. Any party hereto may in
writing expressly waive any of such party's rights under this Agreement without
invalidating this Agreement.
4.3 Successors or Assigns. Whenever any party is named or referred to
in this Agreement, the heirs, executors, legal representatives, successors,
successors-in-title and assigns of such party shall be included. All covenants
and agreements in this Agreement shall bind and inure to the benefit of the
heirs, executors, legal representatives, successors, successors-in-title and
assigns of the parties, whether so expressed or not.
4.4 Construction of Agreement. Each party hereto acknowledges that it
has participated in the negotiation of this Agreement and no provision shall be
construed against or interpreted to the disadvantage of any party hereto by any
court or other governmental or judicial authority by reason of such party having
or being deemed to have structured, dictated or drafted such provision. Borrower
Parties at all times have had access to an attorney in the negotiation of the
terms of and in the preparation and execution of this Agreement. Borrower
Parties have had the opportunity to review and analyze this Agreement for a
sufficient period of time prior to execution and delivery. No representations or
warranties have been made by or on behalf of Lender, or relied upon by Borrower
Parties, pertaining to the subject matter of this Agreement, other than those
set forth in this Agreement. All prior statements, representations and
warranties, if any, are totally superseded and merged into this Agreement, which
represent the final and sole agreement of the parties with respect to the
subject matters. All of the terms of this Agreement were negotiated at arm's
length, and this Agreement was prepared and executed without fraud, duress,
undue influence or coercion of any kind exerted by any of the parties upon the
others. The execution and delivery of this Agreement is the free and voluntary
act of Borrower Parties.
4.5 Invalid Provision to Affect No Others. If, from any circumstances
whatsoever, fulfillment of any provision of this Agreement or any related
transaction at the time performance of such provision shall be due, shall
involve transcending the limit of validity presently prescribed by any
applicable usury statute or any other applicable law, with regard to obligations
of like character and amount, then ipso facto, the obligation to be fulfilled
shall be reduced to the limit of such validity. If any clause or provision
operates or would prospectively operate to invalidate this Agreement, in whole
or in part, then such clause or provision only shall be deemed deleted, as
though not contained, and the remainder of this Agreement shall remain operative
and in full force and effect.
4.6 Notices. Except as otherwise specifically provided to the contrary,
any and all notices, elections, approvals, consents, demands, requests and
responses ("Communications") permitted or required to be given under this
Agreement and the Loan Documents shall not be effective unless in writing,
signed by or on behalf of the party giving the same, and sent by certified or
registered mail, postage prepaid, return receipt requested, or by hand delivery
or overnight courier service (such as Federal Express), to the party to be
notified at the address of such party set forth below or at such other address
within the continental United States as such other party may designate by notice
9
specifically designated as a notice of change of address and given in accordance
with this Section. Any Communications shall be effective upon the earlier of
their receipt or three days after mailing in the manner indicated in this
Section. Receipt of Communications shall occur upon actual delivery but if
attempted delivery is refused or rejected, the date of refusal or rejection
shall be deemed the date of receipt. Any Communication, if given to Lender, must
be addressed as follows, subject to change as provided above:
Midland Loan Services
MBS Administration
000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Re: ASW 1995-Cl
Loan No. 009590229
With a copy to:
Bilzin Xxxxxxx Xxxx Price & Xxxxxxx LLP
0000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
and, if given to Original Borrower, must be addressed as follows,
notwithstanding any other address set forth in the Loan Documents to the
contrary, subject to change as provided above:
Mad River Properties, Ltd.
c/o Beerman Realty Co.
00 Xxxx Xxxxxxxx Xxxxxxxx, 0xx Xxxxx
Xxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxxxxxx, Esq.
With a copy to:
Xxxx X. Xxxxxxxxxx, Esq.
c/o The Xxxxxxx Realty Company
00 Xxxx Xxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxx 00000
and, if given to New Borrower, must be addressed as follows, subject to change
as provided above:
Acadia Mad River Property LLC
c/o Acadia Realty Trust
00 Xxxxxxxxx Xxxxxxxxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxx II 050
Attn: Xxxxxx Xxxxxxx, Esq.
With a copy to:
Xxxxxx Xxxxxxx, Esq.
c/o Acadia Realty Trust
00 Xxxxxxxxx Xxxxxxxxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
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4.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
4.8 Headings, Exhibits. The headings of the articles, sections and
subsections of this Agreement are for the convenience of reference only, are not
to be considered a part of this Agreement and shall not be used to construe,
limit or otherwise affect this Agreement.
4.9 Modifications . The terms of this Agreement may not be changed,
modified, waived, discharged or terminated orally, but only by an instrument or
instruments in writing, signed by the Party against whom the enforcement of the
change, modification, waiver, discharge or termination is asserted.
4.10 Time of Essence-, Consents. Time is of the essence of this
Agreement and the Loan Documents. Any provisions for consents or approvals in
this Agreement shall mean that such consents or approvals shall not be effective
unless in writing and executed by Lender.
4.11 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
4.12 Submission to Jurisdiction.
(a) BORROWER PARTIES, TO THE FULL EXTENT PERNUTTED BY LAW,
HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF
COMPETENT COUNSEL, (i) SUBMIT TO PERSONAL JURISDICTION IN THE STATE OF OHIO OVER
ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS
AGREEMENT, THE NOTE, THE MORTGAGE OR ANY OF THE OTHER LOAN DOCUMENTS, (ii) AGREE
THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION SITTING IN XXXXXXXXXX COUNTY, OHIO, (iii) SUBMIT
TO THE JURISDICTION OF SUCH COLTRTS, AND, (iv) TO THE FULLEST EXTENT PERMITTED
BY LAW, AGREE THAT THEY WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY
OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER TO BRING ANY
ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM). BORROWER PARTIES FURTHER CONSENT
AND AGREE TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY
SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE
PREPAID, TO THE BORROWER PARTIES AT THE ADDRESSES FOR NOTICES DESCRIBED HEREIN,
AND CONSENT AND AGREE THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID
AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR
EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW).
(b) BORROWER PARTIES. TO THE FULL EXTENT PERMITTED BY LAW,
HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF
COMPETENT COUNSEL, WAIVE. RELINQUISH AND FOREVER FOREGO THE RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY
RELATING TO THIS AGREEMENT, THE LOAN DOCUMENTS, THE INDEBTEDNESS SECURED BY THE
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LOAN DOCUMENTS OR ANY CONDUCT, ACT OR OMISSION OF BORROWER PARTIES OR ANY OF
THEIR DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR
ANY OTHER PERSONS AFFILIATED WITH BORROWER PARTIES IN EACH OF THE FOREGOING
CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
The parties have executed and delivered this Agreement as of the day and year
first above
Signed, sealed and delivered LENDER:
in the presence of
LASALLE NATIONAL BANK FOR THE BENEFIT OF CERTIFICATEHOLDERS
OF AMERICAN SOUTHWEST FINANCIAL SECURITIES CORPORATION,
COMMERCIAL MORTGAGE PASS -THROUGH CERTIFICATES, SERIES
1995-Cl
Sign: By: LENNAR PARTNERS, INC.,
as attorney-in-fact
Print Name:
By:_______________________________________
Xxxxxx X. Xxxxxxxx, Vice President
STATE OF FLORIDA )
) SS.:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 19
day of February, 1999, by Xxxxxx X. Xxxxxxxx, as Vice President of Lennar
Partners Inc., a Florida corporation, on behalf of said corporation as
attorney-in-fact for LASALLE NATIONAL BANK FOR THE BENEFIT OF CERTIFICATEHOLDERS
OF AMERICAN SOUTHWEST FINANCIAL SECURITIES CORPORATION, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 1995-Cl. He/She is personally known to me or
has produced a Florida driver's license as identification.
-----------------------------
Notary Public, State of Florida
Print Name of Notary:
Notary's Commission Expires:
Signed, sealed and delivered
in the presence of:
ORIGINAL BORROWER:
MAD RIVER PROPERTIES LTD., an Ohio
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limited liability company, successor in
interest to Mad River Ltd., an . Ohio
limited partnership
By:_____________________________
Xxxxxxx X. Xxxxxx, Manager and President
STATE OF FLORIDA )
) SS.:
COUNTY OF MONROE
I HEREBY CERTIFY that before me personally appeared Xxxxxxx X. Xxxxxx,
to me well known and known to me to be the President of MAD RIVER PROPERTIES
LTD., an Ohio limited liability company, successor in interest to Mad River
Ltd., an Ohio limited partnership and he did acknowledge before me that said
instrument is the free act and deed by him for the purposes therein expressed.
WITNESS my hand and official seal this 19th day of February, 1999.
----------------------------------
Notary Public. State of Florida
Print name of Notary
Notary's Commission Expires:
Signed, sealed and delivered NEW BORROWER:
in the presence of:
Sign: ___________________ ACADIA MAD RIVER PROPERTY LLC, a Delaware
limited liability company
By: Acadia Realty Limited Partnership, a
Print:____________________ Delaware limited partnership
By: Acadia Realty Trust, a Maryland real
estate investment trust, its general
partner
By:______________________________________
Xxxxxxx X. Xxxxxxxxx, President
STATE OF NEW YORK )
) SS:
COUNTY OF NASSAU )
I HEREBY CERTIFY that before me, personally appeared Xxxxxxx X.
Xxxxxxxxx, to me well known and known to me to be the President of Acadia Realty
Trust, a Maryland real estate investment trust, as the general partner of Acadia
Realty Limited Partnership, a Delaware limited partnership, as the sole member
of ACADIA MAD RIVER PROPERTY LLC, a Delaware limited liability company, and he
did acknowledge before me that said instrument is the free act and deed by him
for the purposes therein expressed.
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WITNESS my hand and official seal in the County and State last
aforesaid thiS 22nd day of February, 1999.
Notary Public
EXHIBIT A
PROPERTY DESCRIPTION
PARCEL 1:
Situate in the Township of Miami, County of Xxxxxxxxxx, State of Ohio and being
Lot numbered FIVE (5) Corrective Record Plan Mad River Station No. 2 as recorded
in Plat Book 133, page 3 of the Xxxxxxxxxx County, Ohio Records.
EXCEPTING THEREFROM THE FOLLOWING DESCRIBED REAL ESTATE:
Located in Section 7, Town 1, Range 6 MRS, Miami Township, county of Xxxxxxxxxx,
State of Ohio and being a tract of land described as follows:
Being a part of Xxx 0 xx Xxx Xxxxx Xxxxxxx Xx. 0 as recorded in Plat Book 133,
page 3, beginning at the northwest corner of Xxx 0 xx Xxx Xxxxx Xxxxxxx Xx. 0 as
recorded in Book 133, page 3 in the Plat Records of Xxxxxxxxxx County, Ohio;
thence with the north line of said Lot 5, South eighty-seven degrees forty-six
minutes thirty-eight seconds (000 000 0000) East for two hundred six and 54/100
(206.54) feet;
then South two degrees thirteen minutes twenty-two seconds (2 13' 22") West for
forty and 00/100 (40.00) feet;
thence North eighty-six degrees twenty minutes zero seconds (86 201 00") West
for one hundred four and 41/100 (104.41) feet;
thence South two degrees eleven minutes fifty-five seconds (2 111 55") East for
forty and 88/100 (40.88) feet to a corner in the west side of said Lot 5;
thence with the west side of said Lot 5 on the following two courses: North
eighty-four degrees five minutes fifty-six seconds (84 051 56") West for
ninety-nine and 89/100 (99.89) feet and North two degrees fifteen minutes f
fifty-six seconds (2 10 151 56") West for seventy-one and 93/100 (71.93) feet to
the point of beginning, containing 0.265 acres, more or less.
PARCEL 11 (EASEMENT)
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Together with Easement rights created by Reciprocal Easement Agreement between
Mad River Ltd., an Ohio Limited Partnership, and CAS III Limited Partnership, an
Ohio Limited Partnership, dated February 26, 1993, filed for record October 21,
1993 at 1:57 p.m., and recorded as Deed No. 93-673BO8 of the Xxxxxxxxxx County,
Ohio Records.
PARCEL III:
Situate in the Township of Miami, county of Xxxxxxxxxx, State of Ohio and being
Lots numbered FIVE (5) and SIX (6) Mad River Station 11, Section 2 as recorded
in Plat Book 142, page 40 of Xxxxxxxxxx County, Ohio Records.
PARCEL IV:
Situate in the Township of Miami, county of Xxxxxxxxxx, State of Ohio and being
Lot numbered one (1) Mad River Station 11 as recorded in Plat Book 131, page 17
of Xxxxxxxxxx County Records.
PARCEL V:
Situate in the Township of Miami, County or Xxxxxxxxxx, State of Ohio and being
Lot numbered two (2) Mad River Business Park Section one as recorded inplat Book
123, page 6 of Xxxxxxxxxx County records.
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