ASSUMPTION AND RELEASE AGREEMENT
This Assumption and Release Agreement ("Agreement") is made
effective as of October 28, 1998 by and among GRAMERCY HILL ENTERPRISES, a Texas
general partnership ("Transferor"), XXXXXX X. XXXXXX, ("Original Key
Principal"), CAPITAL SENIOR LIVING PROPERTIES 2-GRAMERCY, INC., a Delaware
corporation ("Transferee"), CAPITAL SENIOR LIVING CORPORATION, a Delaware
corporation (the "New Key Principal") and Xxxxxx Mae.
RECITALS:
A. Xxxxxx Xxx is the holder of that certain Multifamily Note
(as modified by the Addendum to Multifamily Note, the "Note"), dated December 4,
1997, in the original principal amount of $6,400,000.00 made by Transferor, to
WASHINGTON MORTGAGE FINANCIAL GROUP, LTD. ("Original Lender"), which Note
evidences a loan ("Loan") made by Original Lender to Transferor. To secure the
repayment of the Note, Transferor also executed and delivered a Multifamily Deed
of Trust, Assignment of Rents and Security Agreement, including a Rider to
Multifamily Instrument (the "Security Instrument"), dated December 4, 1997,
recorded in the official records of Lancaster County, State of Nebraska on
December 4, 1997, as Instrument No. 97- 50461 that grants a lien on the property
described in Exhibit A to this Agreement (the "Property"). The Transferor is
liable for the payment and performance of all of Transferor's obligations under
the Note, the Security Instrument and all other documents executed in connection
with the Loan, as listed on Exhibit B to this Agreement (collectively, the "Loan
Documents"). Each of the Loan Documents has been duly assigned or endorsed to
Xxxxxx Xxx. The current servicer of the Loan is WMF Washington Mortgage Corp.
("Servicer").
B. The Original Key Principal is liable for the obligations under
the Acknowledgement and Agreement of Key Principal to Personal Liability for the
Exceptions to Non-Recourse Liability contained in the Note and Security
Instrument (the "Acknowledgement").
C. Xxxxxx Mae has been asked to consent to the transfer of the
Property to the Transferee and the assumption by the Transferee of the
obligations of the Transferor under the Loan Documents.
D. Xxxxxx Xxx has been asked to consent to the release of the
Original Key Principal from his obligations under the Acknowledgement and to
accept the assumption by the New Key Principal of the Original Key Principal's
obligations under the Acknowledgement.
E. Xxxxxx Mae has agreed to consent to the transfer of the
Property by Transferor to Transferee subject to the terms and conditions stated
below.
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, Xxxxxx Xxx,
Transferor, Original Key Principal, Transferee and New Key Principal agree as
follows:
1. Assumption of Obligations. The Transferee agrees to assume all of
the payment and performance obligations of the Transferor set forth in
the Note, the Security Instrument 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 under the Note. The Transferee further agrees to abide
by and be bound by all of the terms of the Loan Documents, all as
though each of the Loan Documents had been made, executed and
delivered by the Transferee.
Assumption and Release Agreement - Xxxxxx Mae Multistate Form 4520
12/97
1
2. Transferor's and Original Key Principal's Representations and
Warranties. The Transferor and the Original Key Principal represent and
warrant to Xxxxxx Xxx as of the date of this Agreement that:
(a) The Note has an unpaid principal balance of $6,334,660.06, and
prior to default bears interest at the rate of seven and
sixty-nine hundredths percent (7.69%) per annum;
(b) The Note requires that monthly payments of principal and interest
in the amount of $48,089.21 be made on or before the first (1st)
day of each month, continuing to and including January 1, 2008,
when all sums due under the Loan Documents will be immediately
due and payable in full;
(c) The Security Instrument is a valid first lien on the Property for
the full unpaid principal amount of the Loan and all other
amounts as stated in the Security Instrument;
(d) There are no defenses, offsets or counterclaims to the Note, the
Security Instrument or the other Loan Documents;
(e) There are no defaults by the Transferor under the provisions of
the Note, the Security Instrument or the other Loan Documents;
(f) All provisions of the Note, the Deed of Trust and other Loan
Documents are in full force and effect;
(g) There are no subordinate liens of any kind covering or relating
to the Property, nor are there any mechanics' liens or liens for
unpaid taxes or assessments encumbering the Property, nor has
notice of a lien or notice of intent to file a lien been
received; and
The Transferor and Original Key Principal understand and intend that
Xxxxxx Mae will rely on the representations and warranties contained
herein.
3. Transferee's and the New Key Principal's Representations and
Warranties. The Transferee and the New Key Principal represent and
warrant to Xxxxxx Xxx as of the date of this Agreement that neither
Transferee nor any New Key Principal has any knowledge that any of the
representations made by Transferor and Original Key Principal in
Paragraph 2 above are not true and correct.
4. Consent to Transfer. Xxxxxx Mae hereby consents to the transfer of
the Property and to the assumption by the Transferee of all of the
obligations of the Transferor under the Loan Documents, subject to the
terms and conditions set forth in this Agreement. Xxxxxx Mae's consent
to the transfer of the Property to the Transferee is not intended to be
and shall not be construed as a consent to any subsequent transfer
which requires the Lender's consent pursuant to the terms of the
Security Instrument.
5. Assumption by the New Key Principal of Liability for the Exceptions
to Non-Recourse. New Key Principal hereby assumes all liability under
the provisions of the Acknowledgement.
6. Release of Transferor. In reliance on the Transferor's and the
Original Key Principal's and the Transferee's representations and
warranties in this Agreement, Xxxxxx Mae releases Transferor and
Original Key Principal from all of their respective obligations under
the Loan Documents, provided, however, that the Transferor is not
released from any liability pursuant to this Agreement or paragraph D
(Environmental Hazards) of the Rider to Multifamily Instrument executed
by the Transferor as a part of the Security Instrument for any
liability that relates to the period prior to the date hereof,
Assumption and Release Agreement - Xxxxxx Xxx Multistate Form 4520
12/97
2
regardless of when such environmental hazard is discovered. If any
material element of the representations and warranties made by the
Transferor and Original Key Principal contained herein is false as of
the date of this Agreement, then the release set forth in this
Paragraph 6 will be canceled as of the date of this Agreement and the
Transferor and Original Key Principal will remain obligated under the
Loan Documents as though there had been no such release.
7. Priority/Modification. This Agreement embodies and constitutes the
entire understanding among the parties with respect to the transactions
contemplated herein, and all prior or contemporaneous agreements,
understandings, representations, and statements, oral or written, are
merged into this Agreement. Neither this Agreement nor any provision
hereof may be waived, modified, amended, discharged, or terminated
except by an instrument in writing signed by the party against which
the enforcement of such waiver, modification, amendment, discharge, or
termination is sought, and then only to the extent set forth in such
instrument. Except as expressly modified hereby, the Note, Security
Instrument and other Loan Documents shall remain in full force and
effect and this Agreement shall have no effect on the priority or
validity of the liens set forth in the Security Instrument or the Loan
Documents, which are incorporated herein by reference. Transferor and
the Original Key Principal hereby ratify the agreements made by them to
Xxxxxx Mae in connection with the Loan and agree that, except to the
extent modified hereby, all of such agreements remain in full force and
effect.
8. No Impairment of Lien. Nothing set forth herein shall affect the
priority or extent of the lien of any of the 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, become
liable, primarily or secondarily, under the Loan Documents.
9. Costs. The Transferee and the Transferor agree to pay all fees and
costs (including attorneys' fees) incurred by Xxxxxx Xxx and the
Servicer in connection with Xxxxxx Mae's consent to and approval of the
transfer of the Property and a transfer fee of $63,346.60 in
consideration of the consent to that transfer.
10. Financial Information. The Transferee and New Key Principal
represent and warrant to Xxxxxx Xxx that all financial information and
information regarding the management capability of Transferee and New
Key Principal provided to the Servicer or Xxxxxx Mae was true and
correct as of the date provided to the Servicer or Xxxxxx Xxx and
remains materially true and correct as of the date of this Agreement.
Assumption and Release Agreement - Xxxxxx Mae Multistate Form 4520
12/97
3
11. Addresses. Transferee's address for notice hereunder and under the
Loan Documents is:
Capital Senior Living Properties 2-Gramercy, Inc.
c/o Capital Senior Living Corporation
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Transferor's address for notice hereunder and under the Loan Documents
is:
Gramercy Hill Enterprises
c/o Interactive Teleservices
00 Xxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
12. Complete Release. Transferee and Transferor and the Original Key
Principal and the New Key Principal, jointly and severally as between
Transferee and New Key Principal, unconditionally and irrevocably
release and forever discharge Original Lender, Xxxxxx Xxx, and their
respective successors, assigns, agents, directors, officers, employees,
and attorneys, and each current or substitute trustee under the
Security Instrument (collectively, the "Indemnitees") from all Claims,
as defined below, and jointly and severally agree to indemnify
Indemnitees, and hold them harmless from any and all claims, losses,
causes of action, costs and expenses of every kind or character in
connection with the Claims or the transfer of the Property.
Notwithstanding the foregoing, Transferor shall not be responsible for
any Claims arising from the action or inaction of Transferee and New
Key Principal, and Transferee and New Key Principal shall not be
responsible for any Claims arising from the action or inaction of
Transferor. As used in this Agreement, the term "Claims" shall mean any
and all possible claims, demands, actions, 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, Original Key Principal, or any of
their respective partners, members, officers, agents or employees, may
now or hereafter have against the Indemnitees, if any and irrespective
of whether any such Claims arise out of contract, tort, violation of
laws, or regulations, or otherwise in connection with 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 duty, breach of any duty of fair dealing, breach of
confidence, breach of funding commitment, undue influence, duress,
economic coercion, violation of any federal or state securities or Blue
Sky laws or regulations, conflict of interest, NEGLIGENCE, bad faith,
malpractice, violations of the Racketeer Influenced and Corrupt
Organizations Act, intentional or negligent infliction of mental
distress, tortious interference with contractual relations, tortious
interference with corporate governance or prospective business
advantage, 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 and Transferee agree that Xxxxxx Mae and Original Lender
have no fiduciary or similar obligations to Transferor or Transferee
and that their relationship is strictly that of creditor and debtor.
This release is accepted by Xxxxxx Xxx and Original Lender pursuant to
Assumption and Release Agreement - Xxxxxx Mae Multistate Form 4520
12/97
4
this Agreement and shall not be construed as an admission of liability
on the part of either. Transferor and Transferee and the Original Key
Principal and New Key Principal 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 Claim to any other person.
13. Miscellaneous.
(a) This Agreement shall be construed according to and governed by the
laws of the jurisdictions in which the 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 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.
Assumption and Release Agreement - Xxxxxx Xxx Multistate Form 4520
12/97
5
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TRANSFEREE:
CAPITAL SENIOR LIVING PROPERTIES
2-GRAMERCY, INC., a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxxx X. Xxxxx
Chief Financial Officer
Date: As of October 28, 0000
XXXXX XX Xxx Xxxx, Xxxxxx Xxxxxx ss:
The foregoing instrument was acknowledged before me this 28th
day of October, 1998, by Xxxxxxxx X. Xxxxx, Chief Financial Officer of Capital
Senior Living Properties 2-Gramercy, Inc., a Delaware corporation, on behalf of
the corporation.
Witness my hand and notarial seal in said state and county,
the date aforesaid.
/s/ Xxxxx X. Xxx
---------------------------
Notary Public
My Commission Expires: 5/5/99
Assumption and Release Agreement - Xxxxxx Mae Multistate Form 4520
12/97
6
NEW KEY PRINCIPAL:
CAPITAL SENIOR LIVING CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------------------
Xxxxxxxx X. Xxxxx
Chief Financial Officer
Address: 00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Date: As of October 28, 0000
XXXXX XX Xxx Xxxx, Xxxxxx Xxxxxx ss:
The foregoing instrument was acknowledged before me this 28th day of
October, 1998, by Xxxxxxxx X. Xxxxx, Chief Financial Officer of Capital Senior
Living Corporation, a Delaware corporation, on behalf of the corporation.
Witness my hand and notarial seal in said state and county, the date
aforesaid.
/s/ Xxxxx X. Xxx
--------------------
Notary Public
My Commission Expires: 5/5/99
Assumption and Release Agreement - Xxxxxx Xxx Multistate Form 4520
12/97
7
TRANSFEROR:
GRAMERCY HILL ENTERPRISES, a Texas
general partnership
By: Gramercy Hill Limited Partnership, a Nebraska
limited partnership, its general partner
By: Gramercy Hill Corp., a Nebraska
corporation, its general partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
President
Date: As of October 28, 1998
STATE OF Ohio, Franklin County ss:
The foregoing instrument was acknowledged before me this 27th
day of October, 1998, by Xxxxxx X. Xxxxxx, president of Gramercy Hill
Corporation, a Nebraska corporation, general partner of Gramercy Hill Limited
Partnership, a Nebraska limited partnership, general partner of Gramercy Hill
Enterprises, a Texas general partnership, on behalf of Gramercy Hill
Enterprises.
Witness my hand and notarial seal in said state and county,
the date aforesaid.
/s/ Xxxx X. Xxxxxx
--------------------------------
Notary Public
My Commission Expires:
--------------------------------------
Assumption and Release Agreement - Xxxxxx Mae Multistate Form 4520
12/97
8
ORIGINAL KEY PRINCIPAL:
/s/ Xxxxxx X. Xxxxxx (SEAL)
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Address: c/o Interactive Teleservices
00 Xxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Date: As of October 28, 1998
STATE OF Ohio, Franklin County ss:
The foregoing instrument was acknowledged before me this 27th day of
October, 1998, by Xxxxxx X. Xxxxxx in his individual capacity.
Witness my hand and notarial seal in said state and county, the date
aforesaid.
/s/ Xxxx X. Xxxxxx
-----------------------------------
Notary Public
My Commission Expires:
----------------------------------------
Assumption and Release Agreement - Xxxxxx Xxx Multistate Form 4520
12/97
9
XXXXXX MAE
By: /s/ Xxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
STATE OF District of Columbia County ss:
The foregoing instrument was acknowledged before me this 21st day of
October, 1998, by Xxxxxxx Xxxxx, Asst. V.P. of Xxxxxx Mae, a corporation
organized under the laws of the United States of America, on behalf of the
corporation.
Witness my hand and notarial seal in said state and county, the date
aforesaid.
/s/ Xxxxxxxx X. Xxxxxx
--------------------------------
Notary Public
My Commission Expires:
------------------------------------
Assumption and Release Agreement - Xxxxxx Mae Multistate Form 4520
12/97
10
EXHIBIT A
to
ASSUMPTION AND RELEASE AGREEMENT
Lot Seventy-nine (79) of Irregular Tracts in the Southeast Quarter of Section
28, Township 10 North, Range 0 Xxxx xx Xxx 0xx X.X., Xxxxxxx, Xxxxxxxxx Xxxxxx,
Xxxxxxxx
Assumption and Release Agreement - Xxxxxx Xxx Multistate Form 4520
12/97
A-1
EXHIBIT B
to
ASSUMPTION AND RELEASE AGREEMENT
a. Multifamily Note dated December 4, 1997, by Gramercy Hill Enterprises
("Original Borrower") for the benefit of Washington Mortgage Financial
Group, Ltd. ("Original Lender"), as modified by an Addendum to Note dated
December 4, 1997.
b. Deed of Trust, Assignment of Rents and Security Agreement, including a
Rider to Multifamily Instrument, dated December 4, 1997, by Original
Borrower for the benefit of Original Lender.
c. Two (2) Financing Statements dated December 4, 1997, listing Original
Borrower as debtor, Original Lender as secured party and Xxxxxx Xxx as
assignee.
d. Replacement Reserve and Security Agreement dated December 4, 1997 by and
between Original Borrower and Original Lender.
e. Completion/Repair and Security Agreement dated December 4, 1997 by and
between Original Borrower and Original Lender.
f. Assignment of Management Agreement dated December 4, 1997 by and between
Original Borrower, Original Lender and Manager.
g. Agreement to Amend or Comply dated December 4, 1997 executed by Original
Borrower.
Assumption and Release Agreement - Xxxxxx Mae Multistate Form 4520
12/97
B-1
