DOCUMENT PREPARED BY AND WHEN RECORDED, RETURN TO: Andrews Kurth LLP
Exhibit
4.6
DOCUMENT
PREPARED BY AND
WHEN
RECORDED, RETURN TO:
Xxxxxxx
Xxxxx LLP
000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attention: Xxxxx
Xxxxxxx
LOAN
ASSUMPTION AGREEMENT, RELEASE AND
AMENDMENT
OF LOAN DOCUMENTS
THIS LOAN ASSUMPTION AGREEMENT,
RELEASE AND AMENDMENT OF LOAN DOCUMENTS, dated to be effective as of June
____, 2010 (this “Agreement”)
is made by and among URBAN
DEVELOPMENT PARTNERS (61), LLC, a Connecticut limited liability company
(“Transferor”), XXXXXX XXXXXX, an individual
(“Xxxxxx”)
and XXXXX XXXXXXXX, an
individual (“Xxxxxxxx”,
together with Xxxxxx, the “Indemnitor”),
ARC NYE61ST001, LLC, a
Delaware limited liability company (“Transferee”),
AMERICAN REALTY CAPITAL NEW
YORK RECOVERY REIT, INC., a Maryland corporation (“REIT”),
XXXXXXXX X. XXXXXXXX, an
individual (“Xxxxxxxx”)
and XXXXXXX X. XXXXXX
(“Xxxxxx”,
together with REIT and Xxxxxxxx, “Replacement
Indemnitor”) and XXXXX
FARGO BANK, N.A., successor in interest to WACHOVIA BANK, NATIONAL
ASSOCIATION, as master servicer (“Servicer”),
acting not individually, but solely in its capacity as Servicer for and on
behalf of U.S. BANK NATIONAL
ASSOCIATION, as Trustee under that certain Pooling and Servicing
Agreement dated December 1, 2002 (“Pooling
Agreement”), for the certificateholders of GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificate Series 2002-3
(the “Certificates”),
with respect to the Certificates (the “Noteholder”).
RECITALS
A. Transferor
obtained a loan (the “Loan”)
from Deutsche Banc Mortgage Capital, L.L.C. (“Lender”)
in the original principal amount of Fifteen Million Eight Hundred Fifty Thousand
and No/100 Dollars ($15,850,000.00) which Loan is evidenced by that certain
Promissory Note dated October 9, 2002 (the “Note”)
executed by Transferor, as maker, and payable to the order of Lender, as payee,
in the original principal amount of $15,850,000.00 together with interest
thereon as made particularly set forth in the Note.
B. Transferor’s
obligations under and in connection with the Loan and the Note are secured by,
among other things, (i) that certain Mortgage and Security Agreement dated
as of October 9, 2002 (the “Mortgage”),
executed by Transferor for the benefit of Lender, recorded November 7, 2002
in Reel 3653, Page 1930 of the Office of the City Register, New York
County, New York, as assigned to Noteholder pursuant to that certain Assignment
of Mortgage dated June 30, 2009, recorded December 11, 2009 in CRFN
2009000407744 of the Office of the City Register, New York County, New York (the
“Assignment”);
and (ii) that certain Assignment of Leases and Rents dated October
9, 2002 (the “Assignment of
Leases”), recorded on November 7, 2002 in Reel 3653,
Page 2029 of the Official Records of New York County, New York, as assigned
to Noteholder pursuant to that certain Assignment of Assignment of Leases and
Rents dated June 30, 2009, recorded December 11, 2009 in CRFN 2009000407745 of
the Office of the City Register, New York County, New York. Pursuant
to the Mortgage, Transferor granted to Noteholder a lien and security interest
in certain real and personal property of Transferor more particularly described
in the Mortgage (the “Mortgaged
Property”), including without limitation, the real property described on
Exhibit A attached hereto.
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
C. In
addition, Transferor executed and delivered to Lender two (2) UCC-1 Financing
Statements (collectively, the “Financing
Statements”), naming Transferor as debtor, and Lender as secured party,
which Financing Statements have been assigned to Noteholder. The
first Financing Statement was filed for record on July 9, 2007, as File No.
0002466794 in the office of the Secretary of State of
Connecticut. The second Financing Statement was filed for record on
October 16, 2002, as File No. 02PN26929 with the Office of the City
Register, New York County, New York.
D. In
connection with the Loan, Indemnitor and Transferor executed a Guaranty
and Indemnity Agreement dated October 9, 2002 for the
benefit of Lender (the “Guaranty”).
E. In
connection with the Loan, Transferor, Lender and The Bank of New York (“Bank”)
executed a Tri Party Lockbox Operating Agreement dated October 9, 2009
(the “Lockbox
Agreement”).
F. In
connection with the Loan, Transferor and Lender entered into a Cash Management
and Security Agreement (the “Cash Management
Agreement”).
G. The
Note, the Mortgage, the Assignment of Leases, the Financing Statements, the
Guaranty, the Cash Management Agreement, and the Lockbox Agreement, as the same
may be modified, supplemented, amended, substituted or replaced, are referred to
herein, collectively, as the “Loan
Documents.” Terms with initial capitalized letters used herein and not
otherwise defined herein shall have the meanings given to such terms in the Loan
Agreement.
H. The
Loan is now owned and held by Noteholder, and the Loan is administered by
Servicer in accordance with the Pooling Agreement.
I. Pursuant
to the Pooling Agreement, Servicer is granted the authority to approve on behalf
of the Noteholder certain modifications to the Loan Agreement, including the
transfer of the Mortgaged Property and the substitution of the Transferor and
the Indemnitor, in accordance with the provisions thereof.
J. Pursuant
to the Mortgage, Transferor agreed not to transfer the Mortgaged Property except
as specifically permitted therein.
K. Transferor
and Transferee have now requested the consent of Noteholder (i) to transfer
the Mortgaged Property to Transferee pursuant to Section 6.3 of the
Mortgage (the “Transfer”),
and in connection with such transfer, Transferee has agreed to assume
Transferor’s duties and obligations under the Loan Documents (the “Assumption”),
(ii) to replace the Indemnitor and in connection therewith, Replacement
Indemnitor has agreed to assume Indemnitor’s duties, obligations, guarantees and
indemnities under the Loan Documents, and (iii) to release Transferor and
Indemnitor from all claims and liabilities arising out of the Loan Documents
after the foregoing transfers, assumptions and replacements, all pursuant to and
in compliance with the terms of the Mortgage, and have also requested the
agreement of Noteholder to amend certain of the Loan Documents in certain
respects as hereinafter set forth. Noteholder, acting by and through
Servicer, is willing to permit such transfer and assumption and to amend the
Loan Documents in such respects, but only upon the terms and conditions set
forth herein.
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
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L. Section
3.08 of the Pooling Agreement authorizes Servicer, on behalf of the Noteholder,
under certain terms and conditions (which are in effect) to waive the due on
sale clause and facilitate the transfer of the Mortgaged Property and assumption
of the Loan, and the Servicer has elected to do so on the terms and conditions
set forth in this Agreement.
AGREEMENTS
In
consideration of the foregoing and the mutual covenants and promises set forth
in this Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Noteholder, Transferor,
Indemnitor, Transferee and Replacement Indemnitor agree as follows:
1. Incorporation of
Recitals. The foregoing recitals are incorporated herein as a
substantive, contractual part of this Agreement.
2. Assumption of
Obligation. Transferee agrees to and does hereby assume all of
the payment and performance obligations of the Transferor set forth in the Note,
the Mortgage and the other Loan Documents in accordance with their respective
terms and conditions, as the same may be modified by this Agreement, including
without limitation, payment of all sums due and payable under the
Note. Transferee further agrees to abide by and be bound by all of
the terms of the Loan Documents, as modified herein, all as though each of the
Loan Documents had been made, executed and delivered by
Transferee. The provisions of the Loan Documents are incorporated
herein by this reference, as if fully set forth herein. Without
limitation of any continuing liability of Transferor, Transferee acknowledges
and agrees that any reference to the Transferor in the Loan Documents shall be
deemed to refer to Transferee. Transferee hereby adopts, ratifies and
confirms all of the representations, warranties and covenants of Transferor
contained in the Loan Documents, including, but not limited to, the Indemnity
Agreement, as if Transferee were the Transferor named in the Loan
Documents.
3. Transferor’s
Acknowledgments, Representations and Warranties. The
Transferor acknowledges, represents and warrants to Noteholder as of the date of
this Agreement that:
(a) The
Note has an unpaid principal balance as of the date of this Agreement, of
$14,242,105.08 and prior to default bears interest at the rate of 6.20% per
annum, subject to adjustment as set forth in the Loan
Agreement. There is presently a balance of $336,400.29 in the tax
escrow account, a balance of $10,476.34, in the replacement reserves escrow
account, a balance of $7,742.00 in the insurance escrow account, a balance of
$37,665.18 in the TI/LC escrow account, and a balance of $611,571.27 in the
other escrow reserve account maintained by Noteholder in connection with the
Loan. Contemporaneously herewith, Transferor has transferred and
assigned to Transferee all right, title and interest of Transferor in and to
such tax, insurance and reserve escrow accounts.
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
- 3
-
(b) The
Note requires that monthly payments of principal and interest in the amount of
$97,076.33 be made on or before the first day of each month, continuing to
November 1, 2012 (the “Maturity
Date”), if not sooner accelerated or paid pursuant to the
Note.
(c) The
Mortgage is a valid first lien on the Mortgaged Property for the full unpaid
principal amount of the Loan and all other amounts as stated in the Loan
Documents.
(d) There
are no defenses, offsets or counterclaims to the Note, the Mortgage or the other
Loan Documents.
(e) There
are no defaults by the Transferor under the provisions of the Note, the Mortgage
or the other Loan Documents, nor, to the best of Transferor’s knowledge, are
there any conditions which with the giving of notice or the passage of time or
both may constitute a default by the Transferor under the provisions of the
Note, the Mortgage or the other Loan Documents.
(f) All
provisions of the Note, the Mortgage and the other Loan Documents are valid, in
full force and effect and enforceable in accordance with their terms subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at
law.
(g) There
are no subordinate liens of any kind covering or relating to the Mortgaged
Property, nor are there any mechanics liens or liens for unpaid taxes or
assessments encumbering the Mortgaged Property, nor has notice of a lien or
notice of intent to file a lien been received.
The
Transferor understands and intends that Noteholder will rely upon the
acknowledgments, representations and warranties contained herein.
4. Transferee’s and the
Replacement Indemnitor’s Representations and
Warranties. Transferee and the Replacement Indemnitor jointly
and severally represent and warrant to Noteholder as of the date of this
Agreement that neither Transferee nor any Replacement Indemnitor has any
knowledge that any of the representations made by the Transferor in paragraph 3
above are not true and correct. Transferee and the Replacement
Indemnitor understand and intend that Noteholder will rely on the
representations and warranties contained herein. [Reps to be added regarding
Cash Management Agreement and Lockbox Agreement].
5. Consent to Transfer and
Assumption. Noteholder hereby consents to the Transfer and to
the Assumption, subject to the terms and conditions set forth in this
Agreement. Noteholder’s consent to the Transfer and the Assumption
are not intended to be and shall not be construed as a consent to any subsequent
transfer or assumption which requires the Noteholder’s consent pursuant to the
terms of the Loan Documents.
6. Assumption by the
Replacement Indemnitor of Liability for the Exceptions to
Non-Recourse. Replacement Indemnitor hereby adopt, ratify and
confirm all of the representations, warranties and covenants of the Indemnitor
under the Loan Documents as if the Replacement Indemnitor was the Indemnitor
named therein and jointly and severally assume all liability of the Indemnitor
under the Loan Documents, including without limitation, the Indemnity
Agreement, made by the Indemnitor for the benefit of the
Lender. Reference in any Loan Document, including the Indemnity
Agreement, to the Indemnitor henceforth shall be deemed to refer to the
Replacement Indemnitor. In addition to the foregoing, Replacement
Indemnitor have executed and delivered to Noteholder that certain Guaranty and
Indemnity Agreement dated of even date herewith (the “New
Guaranty”).
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
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7. Release of Transferor and
Indemnitor. In reliance on the Transferor’s and Transferee’s
acknowledgments, representations and warranties in this Agreement and in
consideration for releases contained in Paragraph 12 of this Agreement,
Noteholder releases the Transferor and the Indemnitor from their respective
obligations under the Loan Documents, provided that neither the
Transferor nor the Indemnitor is released from any liability pursuant to this
Agreement, the provisions of the Indemnity Agreement, or the Guaranty for any
liability that relates to the period prior to the date hereof regardless of when
any environmental hazard or other condition giving rise to any such liability
thereunder is discovered. If any material element of the
representations and warranties contained herein as the same relate to the
Transferor and the Indemnitor is false as of the date of this Agreement or in
the event the Transferor or the Indemnitor take or cause any other party hereto
(other than Noteholder) to take any actions which are in contradiction with the
provisions of Paragraph 12 of this Agreement, then the release set forth in this
Paragraph 7 shall be deemed canceled effective as of the date of this Agreement
and the Transferor and the Indemnitor shall remain obligated under the Loan
Documents as though there had been no such release. Nothing contained
herein shall be deemed to impair the right of Noteholder to name Transferor, for
purposes of extinguishing Transferor’s interest in the Mortgaged Property, as a
party defendant in any action or suit for judicial foreclosure and sale under
the Mortgage or for purposes of appointment of a receiver for the Mortgaged
Property, or for purposes of enforcement of the Assignment of Leases and
Rents.
8. No Impairment of
Lien. Nothing set forth herein shall affect the priority or
extent of the lien of the Mortgage or any of the other Loan Documents, nor,
except as expressly set forth herein, release or change the liability of any
party who may now be or after the date of this Agreement may become liable,
primarily or secondarily, under the Loan Documents. Except as
expressly modified hereby, the Note, the Mortgage, the Loan Agreement and the
other Loan Documents remain unchanged, are hereby ratified and reaffirmed in all
respects and shall remain in full force and effect and this Agreement shall have
no effect on the priority or validity of the liens, operation and effect of the
Mortgage and the other Loan Documents, all of which are incorporated herein by
this reference. Nothing herein shall be construed to constitute a
novation of the Loan or of any of the Loan Documents.
9. Costs. Transferee
agrees to pay or cause to be paid all fees and costs (including reasonable
attorneys’ fees) incurred by Noteholder in connection with Noteholder’s consent
to and approval of the Transfer of the Mortgaged Property and the assumption fee
equal to 1.0% of the outstanding principal balance of the Loan (i.e.,
$142,421.05) which is required to be paid by Transferee to Noteholder in
consideration of the consent to the Transfer and to the Assumption.
10. Financial
Information. Transferee and the Replacement Indemnitor
represent and warrant to Noteholder that all financial information and
information regarding the management capability of Transferee and the
Replacement Indemnitor provided to Noteholder was true and correct as of the
date provided to Noteholder and remains materially true and correct as of the
date of this Agreement.
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
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11. Addresses. Transferee’s
address for notice hereunder and under the Loan Documents is:
ARC
NYE61ST001, LLC
000 Xxxx
Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxxx
X. Xxxxxx
12. Complete
Release. Transferee, Transferor, Indemnitor and Replacement
Indemnitor hereby jointly and severally, unconditionally and irrevocably release
and forever discharge Lender, Noteholder and Master Servicer, and their
respective successors, assigns, agents, directors, officers, employees, and
attorneys, and each current or substitute trustee, if any, under the Mortgage
(collectively, the “Indemnitees”)
from all Claims, as defined below. Transferor and Indemnitor jointly
and severally agree to indemnify Indemnitees, and defend and hold them harmless
from any and all claims, losses, causes of action, costs and expenses of every
kind or character incurred by or asserted against Indemnitees in connection with
the Claims (as hereinafter defined), the Transfer or the breach by Transferor or
Indemnitor of the Loan Documents, as amended herein, but only to the extent that
such claims, losses, causes of action, costs and expenses arise out of or are in
any way connected with or result from the acts, actions or omissions of
Transferor or Indemnitor. Transferee and Replacement Indemnitor
jointly and severally agree to indemnify Indemnitees, and defend and hold them
harmless from any and all claims, losses, causes of action, costs and expenses
of every kind or character incurred by or asserted against Indemnitees in
connection with the Claims, the Transfer or the breach by Transferee or
Replacement Indemnitor of the Loan Documents, as amended herein, but only to the
extent that such claims, losses, causes of action, costs and expenses arise out
of or are in any way connected with or result from the acts, actions or
omissions of Transferee or Replacement Indemnitor.
As used
in this Agreement, the term “Claims”
shall mean any and all possible claims, demands, actions, fees, costs, expenses
and liabilities whatsoever, known or unknown, at law or in equity, originating
in whole or in part, on or before the date of this Agreement, which the
Transferor, the Indemnitor, or any of their respective partners, limited
partners, members, officers, directors, shareholders, agents or employees, may
now or hereafter have against the Indemnitees, and irrespective of whether any
such Claims arise out of contract, tort, violation of laws, or regulations, or
otherwise, arising out of or relating to the Loan or any of the Loan Documents,
including, without limitation, any contracting for, charging, taking, reserving,
collecting or receiving interest in excess of the highest lawful rate applicable
thereto and any loss, cost or damage, of any kind or character, arising out of
or in any way connected with or in any way resulting from the acts, actions or
omissions of Indemnitees, including any requirement that the Loan Documents be
modified as a condition to the transactions contemplated by this Agreement, any
charging, collecting or contracting for prepayment premiums, transfer fees, or
assumption fees, any breach of fiduciary commitment, undue influence, duress,
economic coercion, violation of any federal or state securities or Blue Sky laws
or regulations, conflict of interest, bad faith, malpractice, violations of the
Racketeer Influenced and Corrupt Organizations Act, intentional or negligent
infliction of mental or emotional distress, tortious interference with
contractual relations, tortious interference with corporate governance or
prospective business advance, breach of contract, deceptive trade practices,
libel, slander, conspiracy or any claim for wrongfully accelerating the Note or
wrongfully attempting to foreclose on any collateral relating to the Note but in
each case only to the extent permitted by applicable law. Transferor,
Transferee, Indemnitor and Replacement Indemnitor agree that Noteholder has no
fiduciary or similar obligations to any of such parties and that their
relationship is strictly that of creditor and debtor. This release is
accepted by Noteholder pursuant to this Agreement and shall not be construed as
an admission of liability on the part of any party
hereto. Transferor, Indemnitor, Transferee and Replacement Indemnitor
hereby represent and warrant that they are the current legal and beneficial
owners of all Claims, if any, released hereby and have not assigned, pledged or
contracted to assign or pledge any such Claims to any other person.
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
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13. Usury. It
is expressly stipulated and agreed to be the intent of all of the parties hereto
at all times to comply with the applicable law governing the maximum rate or
amount of interest payable on or in connection with the Note and the Loan (or
applicable United States federal law to the extent that it permits Noteholder to
contract for, charge, take, reserve or receive a greater amount of interest
payable on or in connection with the Note and the Loan than under applicable
law). If the applicable law is ever judicially interpreted so as to
render usurious any amount called for under the Note or under the Mortgage, this
Agreement or any other Loan Document, or contracted for, charged, taken,
reserved or received with respect to the Loan, or if Transferor or Transferee
having paid any interest in excess of that permitted by law, then it is the
express intent of all of the parties that all excess amounts theretofore
collected by Noteholder or Lender be credited to the then outstanding principal
balance of the Note (or, if the Note has been or would thereby be paid in full,
any surplus refunded to Transferor or Transferee), and the provisions of the
Note, this Agreement, the Mortgage and the other Loan Documents immediately be
deemed reformed and the amounts thereafter collectible hereunder and thereunder
reduced, without the necessity of the execution of any new documents, so as to
comply with such applicable law, but so as to permit the recovery of the fullest
amount otherwise called for hereunder and thereunder. The right to
accelerate the maturity of the Note does not include the right to accelerate any
interest which has not otherwise accrued on the date of such acceleration, and
Noteholder does not intend to collect any unearned interest in the event of
acceleration. All sums paid or agreed to be paid to Lender or
Noteholder for the use, forbearance or detention of the indebtedness evidenced
by the Note or other Loan Documents shall, to the extent permitted by applicable
law, be amortized, prorated, allocated and spread through the full term of such
indebtedness until payment in full so that the rate or amount of interest on
account of such indebtedness does not exceed the applicable usury ceiling.
Notwithstanding any provision contained in the Note, the Mortgage, this
Agreement or in any of the other Loan Documents, as amended herein, that permits
the compounding of interest, including, without limitation, any provision by
which any of the accrued interest is added to the principal amount of the Note,
the total amount of interest that Transferor or Transferee is obligated to pay
and Noteholder is entitled to receive with respect to the Loan shall not exceed
the amount calculated on a simple (i.e., non-compounded) interest basis at the
maximum rate allowed by applicable law on principal amounts actually advanced to
or for the account of Transferor or Transferee, including all current and prior
advances and any advances made pursuant to the Mortgage, this Agreement or the
other Loan Documents, as amended herein (including, but not limited to, the
payment of taxes, insurance premiums and the like). The provisions of
the Note and the other Loan Documents limiting the amount of interest which may
be contracted for, charged or received on the indebtedness evidenced thereby and
dealing with the rights and duties of the parties with respect to the charging
or receiving of interest in excess of the maximum rate, are hereby incorporated
in this Agreement by reference as though fully set forth herein. To
the extent permitted by law, the Transferor, Transferee, the Indemnitor and the
Replacement Indemnitor hereby waive and release all claims and defenses based
upon usury in connection with the execution and delivery of the Note and the
other Loan Documents and the borrowing of the funds represented by the
Loan.
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
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14. Further
Assurances. Transferor, Indemnitor, Transferee and Replacement
Indemnitor agree to perform such other and further acts, and to execute such
additional documents, agreements, notices or financing statements, as Noteholder
deems reasonably necessary or desirable from time to time to create, preserve,
continue, perfect, validate or carry out any of Noteholder’s rights under this
Agreement and/or the other Loan Documents.
15. Reservation of
Rights. Nothing contained in this Agreement shall prevent or
in any way diminish or interfere with any rights or remedies, including, without
limitation, the right to contribution, which Noteholder may have against
Transferor, Indemnitor, Transferee, Replacement Indemnitor, or any other party
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980 (codified at Title 42, U.S.C. Section 9601, et. seq.), as it may
be amended from time to time, any successor statute thereto or any other
applicable federal, state or local laws, all such rights being hereby expressly
reserved.
16. Compliance with
Anti-Terrorism, Embargo, Sanctions, and Anti-Money Laundering
Laws. Transferee shall comply with all Requirements of Law
relating to money laundering, anti-terrorism, trade embargos and economic
sanctions, now or hereafter in effect. Upon Noteholder’s request from
time to time during the term of the Loan, Transferee shall certify in writing to
Lender that Transferee’s representations, warranties, and obligations under this
Section 16 remain true and correct and have not been
breached. Transferee shall immediately notify lender in writing if
any of such representations, warranties or covenants are no longer true or have
been breached or if Transferee has reasonable basis to believe that they may no
longer be true or have been breached. In connection with such an
event, Transferee shall comply with all Requirements of Law and directives of
Governmental Authorities and, at Noteholder’s request, provide to Noteholder
copies of all notices, reports and other communications exchanged with, or
received from, Governmental Authorities relating to such an
event. Transferee shall also reimburse Noteholder any expense
incurred by Noteholder in evaluating the effect of such an event on the Loan and
Noteholder’s interest in the collateral for the Loan, in obtaining any necessary
license from Governmental Authorities as may be necessary for Noteholder to
enforce its rights under the Loan Documents, and in complying with all
Requirements of Law applicable to Noteholder as the result of the existence of
such an event and for any penalties or fines imposed upon Noteholder as a result
thereof. Further, Transferee shall immediately notify Noteholder in
writing if any future tenant of the Property (i) is identified on the OFAC List,
or (ii) is a Person with whom a citizen of the United States is prohibited to
engage in transactions by any trade embargo, economic sanction, or other
prohibition of United States law, regulation, or Executive Order of the
President of the United States. For purposes of this Section 16, the
following definitions shall apply:
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
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“Governmental
Authority” means any nation or government, any state or other political
subdivision thereof, and any Person exercising executive, legislative, judicial,
or administrative functions of or pertaining to such government.
“OFAC List”
means the list of specially designated nationals and blocked Persons subject to
financial sanctions that is maintained by the U.S. Treasury Department, Office
of Foreign Assets Control and any other similar list maintained by the U.S.
Treasury Department, Office of Foreign Assets Control pursuant to any
Requirements of Law, including, without limitation, trade embargo, economic
sanctions, or other prohibitions imposed by Executive Order of the President of
the United States. The OFAC List currently is accessible through the
internet website xxx.xxxxx.xxx/xxxx/x00xxx.xxx.
“Requirements of
Law” means (a) the organizational documents of an entity, and (b) any
law, regulation, ordinance, code, decree, treaty, ruling or determination of an
arbitrator, court or other Governmental Authority or any Executive Order issued
by the President of the United States, in each case applicable to or binding
upon such Person or to which such Person any of its property or the conduct of
its business is subject, including, without limitation, laws, ordinances and
regulations pertaining to the zoning, occupancy, and subdivision of real
property.
“Person”
means an individual, partnership, limited partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature.
17. Amendments to Loan
Documents. The following Loan Documents shall be and hereby
are amended in the following particulars:
(a) All
Loan Documents.
(i) Notwithstanding
anything to the contrary in the Loan Documents, as amended hereby, the address
of Borrower for all purposes under the Loan Documents, as amended hereby, shall
be as follows:
|
To
Transferee:
|
000
Xxxx Xxxxxx, 00xx Xxxxx
|
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxxx
X. Xxxxxx
Telecopy: (000)
000-0000
(ii) Notwithstanding
anything to the contrary in the Loan Documents, as amended hereby, the address
of Lender for all purposes under the Loan Documents, as amended hereby, shall be
as follows:
|
To
Lender:
|
U.S.
Bank National
Association
|
c/o GEMSA
Loan Services, L.P.
0000 Xxxx
Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Attention:
Portfolio Manager
Telecopy: (866)
604-3523
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
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(iii) References
in the Note, the Mortgage and Assignment of Leases to “Borrower” or “Grantor”
and in the other Loan Documents to terms of similar import shall, from and after
the date hereof, mean and refer to ARC NYE61ST001, LLC.
(b) Mortgage.
(i) Section
6.3 of the Mortgage is hereby amended by adding the following subclause (c) to
the end of the first paragraph of Section 6.3(a):
“Notwithstanding
anything to the contrary contained in Section 6.3 hereof, no transfer shall be
permitted, without the prior written consent of Lender, which would cause
American Realty Capital New York Recovery REIT, Inc., to own, directly or
indirectly a controlling interest in the Borrower and not to have the power to
direct the affairs of Borrower and the Mortgaged Property.”
18. Independent
Obligations. The parties agree and acknowledge that
Transferee’s and Replacement Indemnitor’s liability and obligations under and
pursuant to the Loan Documents, as amended hereby (collectively, the “Obligations”)
are entirely separate, distinct and independent from Transferor’s and
Indemnitor’s past and continuing liability and obligations, if any, under and
pursuant to the Loan Documents. Servicer and/or Noteholder shall not
be required to, and Transferee and Replacement Indemnitor hereby waive any and
all rights to require Servicer and/or Noteholder to prosecute or seek to enforce
any remedies against Transferor and/or to require Servicer and/or Noteholder to
seek or enforce or resort to any remedies with respect to any charge, lien,
security interest, assignment or encumbrance granted to Servicer and/or
Noteholder by Transferor, Transferee or any other party on account of the
Obligations.
19. Conditions
Precedent. Notwithstanding any provision to the contrary in
this Agreement, the effectiveness of the respective consents, releases and
directives granted or expressed by Noteholder within this Agreement shall be
subject to the fulfillment of the following conditions (the “Conditions
Precedent”) to the satisfaction of Servicer:
(a) Servicer
shall have received evidence that Transferee has been duly constituted as a
single-purpose “bankruptcy remote” entity.
(b) Transferor
shall have paid or caused to be paid to Servicer (i) an assumption fee
equal to one percent (1%) of the outstanding principal balance secured by the
Mortgage and (ii) a fee equal to the amount of all out-of-pocket fees and
expenses of Servicer as provided in the Loan Documents, including, without
limitation, all attorneys’ fees, in connection with this Agreement and the
transactions contemplated hereby.
(c) Servicer
shall have received this Agreement fully executed by all parties other than
Servicer.
(d) Servicer
shall have received the New Guaranty executed by Replacement Indemnitor, a Tri
Party Lockbox Agreement executed by Transferee and Bank, in form and substance
acceptable to GEMSA and a subordination of management agreement in a form
acceptable to Servicer executed by Transferee and CB Xxxxxxx Xxxxx, as property
manager;
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Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
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(e) Servicer
shall have received either an endorsement to the policy of title insurance
insuring Noteholder’s interest in the Mortgaged Property or a new policy (with
endorsements thereto), acceptable to Servicer (the “Title
Policy”), which Title Policy shall extend the effective date of the Title
Policy to the date on which this Agreement is recorded in the appropriate public
office (taking exception for no lien, encumbrance or other matter other than
those set forth in the Title Policy on the date originally issued and
non-delinquent real property taxes and any other matters approved by Servicer
and Noteholder), and shall insure that fee title to the Mortgaged Property is
vested in Transferee and that the lien and priority of the Mortgage is not
impaired by the transactions contemplated hereby, with endorsements thereto, as
required by Servicer;
(f)
Servicer shall have received an opinion of
counsel satisfactory to Servicer with respect to, among other things, the due
formation, and good standing of Transferor, the power and authority of the
Transferor and the due execution, delivery, legality, and validity of this
Agreement against Transferor and Indemnitor. If Transferor executes
this Agreement through an attorney-in-fact, such opinion will specifically cover
the authority and enforceability of such execution and delivery;
(g) Servicer
shall have received an opinion of counsel satisfactory to Servicer with respect
to, among other things, the due formation, good standing and qualifications of
Transferee, the power and authority of Transferee, the due execution and
delivery, and the legality, validity and enforceability of (i) this
Agreement, and each of the Loan Documents against Transferee and the Replacement
Indemnitor and (ii) the New Guaranty against Replacement Indemnitor and the
continued perfection of the security interests and liens granted by the Loan
Documents under applicable law following the transfer of the Property to
Transferee and the assumption of the Loan as provided herein;
(h) Servicer
shall have received certified copies of all of the organizational documents of
each entity comprising Transferee, including formation documents, good standing
certificates, evidence of qualification to do business in the state where the
Mortgaged Property is located and authorizing resolutions and/or consents to the
transaction;
(i) Servicer
shall have received UCC, litigation and judgment search reports with respect to
Transferor and Transferee, with results satisfactory to Servicer;
(j) No
default or Event of Default shall exist or be then continuing under any of the
Loan Documents;
(k) Transferee
shall have delivered to Servicer certificates of insurance satisfactory to
Servicer satisfying the requirements specified in the Mortgage and with specific
reference to “all risk” coverage (including both property and liability coverage
for terrorism);
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
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(l) Servicer
shall have received written evidence that the Purchase and Escrow Instructions
Agreement, as amended or supplemented from time to time, between Transferor and
American Realty Capital II, LLC has been assigned to Transferee;
(m) Servicer
shall have received a current certified (by Transferor) rent roll and
year-to-date operating statement; and
(n) Such
other conditions as Servicer may reasonably require.
20. Costs and
Expenses. Any and all costs or expenses arising out of or as a
result of this Agreement or the transactions described herein, including,
without limitation all fees charged by Servicer’s outside legal counsel in
connection herewith, costs of recordation, title insurance endorsements or
policies, and escrow fees, shall be paid by Transferor and Transferee, on or
prior to the recordation of this Agreement in the Office of the City Register,
New York County, New York, and in no event shall any such costs be borne by
Noteholder, Servicer or their agents, servicers, sub-servicers or
contractors.
21. No Counter Claim,
Etc.
(a) Transferee
hereby waives any right to assert against Noteholder or Servicer or their
respective agents, servicers, sub-servicers or contractors (collectively, “Noteholder
Parties”) as a defense, counterclaim, set-off or cross-claim, any defense
(legal or equitable), set-off, counterclaim and/or claim which Transferee may
now or at any time hereafter may have against Transferor or any other party
liable to the Noteholder Parties, or any of them, in any way or
manner. Transferee further waives any right to assert against the
Noteholder Parties, or any of them, as a defense, counterclaim, set-off or
cross-claim, any defense (legal or equitable), set-off, cross-claim,
counterclaim and/or claim which Transferor may now have against the Noteholder
Parties, or any of them, and/or any other party liable to the Noteholder
Parties, or any of them, in any way or manner.
(b) Transferor
hereby agrees and acknowledges that there are no claims, defenses (legal or
equitable), counterclaims, set-offs and/or any other rights or remedies
whatsoever which it now may have, claim or assert against Noteholder or
Servicer, or any of them, including any of same which would in any way alter,
reduce or extinguish its liabilities to the Noteholder Parties under and
pursuant to the Loan Documents, as amended hereby.
(c) Each
of Transferor and Transferee hereby agrees and acknowledges that it has no
current knowledge of any facts that could give rise to future claims, defenses
(legal or equitable), counterclaims, set-offs and/or other rights or remedies
whatsoever against Noteholder or Servicer, or any of them, which would in any
way alter, reduce or extinguish their liabilities to the Noteholder Parties
under and pursuant to the Loan Documents, as amended hereby.
(d) Each
of Transferor and Transferee hereby represents that it has no current knowledge
of the existence of any Event of Default under the Loan Documents.
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/ Loan No. 00-0000000
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(e) Transferor
and Transferee hereby authorize Noteholder, without notice or demand and without
affecting their liability hereunder, from time-to-time to exchange, enforce (in
accordance with the Loan Documents), waive, and release any security held by it
for the payment of the obligations under the Loan Documents, as amended hereby;
to apply such security and direct the order or manner of sale thereof as
Noteholder in its sole discretion may determine and which is not inconsistent
with the Loan Documents; and to assign, without notice, this Agreement in whole
or in part, or Noteholder’s rights hereunder, to anyone at any
time. Transferor and Transferee hereby agree that Noteholder may do
any or all of the foregoing in such manner, upon such terms, and at such times
as Noteholder, in its discretion, deems advisable, without, in any way or
respect, impairing, affecting, reducing or releasing the parties from their
respective obligations under the Loan Documents, as amended hereby, or this
Agreement. This Agreement is not assignable by Transferee in whole or
in part.
(f) With
respect to the Loan, Transferor and Transferee hereby waive and agree not to
assert against Noteholder or Servicer, or any of them, or against each other any
rights which a guarantor or surety could exercise.
22. Miscellaneous.
(a) This
Agreement shall be construed according to and governed by the laws of the
jurisdiction(s) which are specified by the Mortgage. In the event the
Mortgage does not specifically state what jurisdictions laws govern, this
Agreement shall be construed according to and governed by the laws in which the
Mortgaged Property is located without regard to its conflicts of law
principles.
(b) If
any provision of this Agreement is adjudicated to be invalid, illegal or
unenforceable, in whole or in part, it will be deemed omitted to that extent and
all other provisions of this Agreement will remain in full force and
effect.
(c) No
change or modification of this Agreement shall be valid unless the same is in
writing and signed by all parties hereto.
(d) The
captions contained in this Agreement are for convenience of reference only and
in no event define, describe or limit the scope or intent of this Agreement or
any of the provisions or terms hereof.
(e) This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective heirs, legal representatives, successors and permitted
assigns.
(f)
This Agreement may be executed in any number of
counterparts with the same effect as if all parties hereto had signed the same
document. All such counterparts shall be construed together and shall
constitute one instrument, but in making proof hereof it shall only be necessary
to produce one such counterpart.
(g) THIS
WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS AMENDED, REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
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(h) THIS
AGREEMENT CONTAINS INDEMNIFICATION PROVISIONS AS SET FORTH IN SECTION 12
HEREOF.
[remainder
of page intentionally left blank]
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/ Loan No. 00-0000000
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates
of the respective acknowledgments set forth below, to be effective as of the
date first written above.
|
TRANSFEROR:
|
URBAN DEVELOPMENT PARTNERS
(61), LLC, a Connecticut limited liability
company
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By:
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Urban
(61), Inc., a Connecticut corporation, its managing
member
|
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By:
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Xxxxxx
Xxxxxx
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||
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Title:
|
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STATE
OF ________________
|
§
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|
§
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|
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COUNTY
OF ______________
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§
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On June
____, 2010, before me, the undersigned, a Notary Public in and for said County
and State, personally appeared Xxxxxx Xxxxxx, __________________________ of
Urban (61), Inc., a Connecticut corporation, the managing member of URBAN DEVELOPMENT PARTNERS (61),
LLC, a Connecticut limited liability company known to me (or proved
to me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS
my hand and official seal.
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Notary
Public, State of
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||||
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My
Commission Expires:
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||||
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Registration
No.
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||||
[seal]
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
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TRANSFEREE:
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ARC NYE61ST001,
LLC,
a
Delaware limited liability company
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By:
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||
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Xxxxxxx
X. Xxxxxx
President
|
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STATE
OF NEW YORK
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§
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|
§
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|
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COUNTY
OF NEW YORK
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§
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On June
____, 2010 before me, the undersigned, a Notary Public in and for said County
and State, personally appeared Xxxxxxx X. Xxxxxx, President of
ARC NYE61ST001, LLC, a
Delaware limited liability company, known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS
my hand and official seal.
|
Notary
Public, State of Virginia
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|||
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My
Commission Expires:
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|||
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Registration
No.
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[seal]
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
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INDEMNITOR:
|
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XXXXXX XXXXXX
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STATE
OF NEW YORK
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§
|
|
§
|
|
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COUNTY
OF NEW YORK
|
§
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On June
____, 2010 before me, the undersigned, a Notary Public in and for said County
and State, personally appeared XXXXXX XXXXXX,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS
my hand and official seal.
|
Notary
Public, State of New York
|
|||
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My
Commission Expires:
|
|||
|
Registration
No.
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|||
[seal]
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
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INDEMNITOR:
|
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XXXXX
XXXXXXXX
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STATE
OF NEW YORK
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§
|
|
§
|
|
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COUNTY
OF NEW YORK
|
§
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On June
____, 2010 before me, the undersigned, a Notary Public in and for said County
and State, personally appeared XXXXX XXXXXXXX, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he executed the same in his authorized capacity, and that by his signature
on the instrument the person or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS
my hand and official seal.
|
Notary
Public, State of New York
|
|||
|
My
Commission Expires:
|
|||
|
Registration
No.
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|||
[seal]
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
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REPLACEMENT
INDEMNITOR:
|
AMERICAN REALTY CAPITAL NEW
YORK RECOVERY REIT, INC., a Maryland corporation
|
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By:
|
||
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Xxxxxxx
X. Xxxxxx
President
|
||
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STATE
OF NEW YORK
|
§
|
|
§
|
|
|
COUNTY
OF NEW YORK
|
§
|
On June
____, 2010 before me, the undersigned, a Notary Public in and for said County
and State, personally appeared Xxxxxxx X. Xxxxxx, President of AMERICAN REALTY CAPITAL NEW YORK
RECOVERY REIT, INC., a Maryland corporation, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on the instrument
the person or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS
my hand and official seal.
|
Notary
Public, State of Virginia
|
|||
|
My
Commission Expires:
|
|||
|
Registration
No.
|
|||
[seal]
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
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INDEMNITOR:
|
|
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XXXXXXXX
X. XXXXXXXX
|
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STATE
OF NEW YORK
|
§
|
|
§
|
|
|
COUNTY
OF NEW YORK
|
§
|
On June
____, 2010 before me, the undersigned, a Notary Public in and for said County
and State, personally appeared XXXXXXXX X. XXXXXXXX,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS
my hand and official seal.
|
Notary
Public, State of
|
||||
|
My
Commission Expires:
|
||||
|
Registration
No.
|
||||
[seal]
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
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INDEMNITOR:
|
|
|
XXXXXXX
X.
XXXXXX
|
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STATE
OF NEW YORK
|
§
|
|
§
|
|
|
COUNTY
OF NEW YORK
|
§
|
On June
____, 2010 before me, the undersigned, a Notary Public in and for said County
and State, personally appeared XXXXXXX X. XXXXXX, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he executed the same in his authorized capacity, and that by his signature
on the instrument the person or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS
my hand and official seal.
|
Notary
Public, State of
|
||||
|
My
Commission Expires:
|
||||
|
Registration
No.
|
||||
[seal]
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
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NOTEHOLDER
(BY SERVICER):
|
U.S. BANK NATIONAL
ASSOCIATION, as Trustee for the registered holders of GE Commercial
Mortgage Corporation., Commercial Mortgage Pass-Through Certificates
Series 2002-3, under that certain Pooling and Servicing Agreement dated as
of December 1, 2002.
|
||
|
By:
|
XXXXX FARGO BANK, N.A.,
successor in interest
to Wachovia Bank, National Association, acting
not individually but solely in its capacity as Master
Servicer
|
||
|
By:
|
GEMSA
Loan Services, L.P., a Delaware limited partnership,
its attorney in fact pursuant to that certain
Limited Power of Attorney dated as of August 26,
2004
|
||
|
By:
|
|||
|
Xxxxx
Xxxxx,
Director,
Portfolio
Management
|
|||
|
STATE
OF TEXAS
|
§
|
|
§
|
|
|
COUNTY
OF XXXXXX
|
§
|
On June
____, 2010 before me, the undersigned, a Notary Public in and for said County
and State, personally appeared Xxxxx Xxxxx, Director of Portfolio Management of
GEMSA Loan Services, L.P., a Delaware limited partnership, attorney in fact
pursuant to that certain Limited Power of Attorney dated as of August 26, 2004
of Xxxxx Fargo Bank, N.A., successor in interest to Wachovia Bank, National
Association, acting not individually, but solely in its capacity as Master
Servicer of U.S. BANK NATIONAL
ASSOCIATION, as Trustee for the registered holders of the GE Commercial
Mortgage Corporation., Commercial Mortgage Pass-Through Certificates, Series
2002-3, under that certain Pooling and Servicing Agreement dated as of
December 1, 2002, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person or
the entity upon behalf of which the person acted, executed the
instrument.
WITNESS
my hand and official seal.
|
Notary
Public, State of Texas
|
|||
|
My
Commission Expires:
|
|||
[seal]
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
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EXHIBIT
A
Legal
Description
ALL that
certain plot, piece or parcel of land, situate, lying and being in the Borough
of Manhattan, County of New York, City and State of New York, bounded and
described as follows:
BEGINNING
at a point on the southerly side of 00xx Xxxxxx distant 125 feet easterly from
the corner formed by the intersection of the southerly side of 00xx Xxxxxx and
the easterly side of Second Avenue;
RUNNING
THENCE easterly along the southerly side of 61st Street, 110 feet 6 inches to
the westerly side of the land taken by the City of New York for the
Queensborough Bridge approach;
THENCE
southerly along the westerly side of said land and parallel with the easterly
side of Second Avenue, 102 feet 10 inches;
THENCE
westerly and parallel with the southerly side of 61st Street, 60 feet 6
inches;
THENCE
northerly and parallel with the easterly side of Second Avenue, 2 feet 5 inches
to the centre line of the block;
THENCE
westerly and along centre line of the block and parallel with the southerly side
of 61st Street, 50 feet;
THENCE
northerly and parallel with the easterly side of Second Avenue, 100 feet 5
inches to the point or place of BEGINNING.
000
Xxxx 00xx Xxxxxx
/ Loan No. 00-0000000
- 23
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