EXHBIIT 10.22
CONSENT AND SUBORDINATION OF MANAGER
June 30, 2004
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Reference is made to (i) that certain Property and Asset Management
Agreement (the "MANAGEMENT AGREEMENT"), dated as of June 30, 2004 between
BEHRINGER HARVARD ST. LOUIS PLACE S, LLC and BEHRINGER HARVARD ST. LOUIS PLACE
H, LLC (collectively, the "BORROWER") and the undersigned (the "MANAGER") with
respect to the property known as Saint Louis Place and located in the City of
Saint Louis, Missouri (the "PROPERTY"), and (ii) that certain Loan Agreement
(the "LOAN AGREEMENT") dated as of the date hereof, between the Borrower and
Greenwich Capital Financial Products, Inc. (together with its successors and
assigns, the "LENDER"). Any capitalized terms used herein but not defined herein
shall have the same meanings as are ascribed to them in the Loan Agreement.
The Manager acknowledges and understands that delivery of this letter to
you is a condition to the Lender making a certain loan to the Borrower pursuant
to the Loan Agreement in the original principal amount of $20,000,000 (the
"LOAN").
The Borrower and the Manager hereby agree as follows:
1. The Management Agreement and all fees payable to Manager
thereunder are and shall be subject and subordinate in all respects to (i) the
Mortgage (and to the lien of the Mortgage), (ii) the Loan Documents, and (iii)
any and all modifications, amendments, renewals and/or substitutions of the
Mortgage and/or any of the other Loan Documents. Without limiting the foregoing,
Manager agrees that, notwithstanding anything to the contrary in the Management
Agreement, during the continuance of an Event of Default, the Manager shall not
be entitled to receive any asset management fees or property management fees or
any other payments required to be paid to Manager under the Management Agreement
in excess of is actual out-of-pocket costs and the expenses (as reasonably
approved by Lender) incurred in connection with its duties under the Management
Agreement; provided, however, that all such amounts shall be deferred and shall
be payable by Borrower upon the earlier to occur of the cure of such Event of
Default or foreclosure of the Property and payment in full of the Debt. This
paragraph 1 shall be self-operative and no further instrument of subordination
shall be required. If requested, however, the Borrower and/or the Manager shall
execute and deliver such further instruments as the Lender may deem reasonably
necessary to effectuate this subordination.
2. If there shall have occurred and be continuing an Event of
Default and the Lender shall have obtained (i) title to the Property (or any
portion thereof) whether by foreclosure, deed-in-lieu of foreclosure, bankruptcy
sale or otherwise and/or (ii) possession of the Property (or any portion
thereof) whether personally or through an agent, a receiver or a trustee, the
Manager shall, if and to the extent requested in writing by the Lender, continue
performance under the Management Agreement in accordance with the terms thereof
so long as the Manager is paid compensation thereafter accruing under the
Management Agreement. The Borrower and the Manager understand, however, that
nothing contained herein, in the Mortgage or in any of the other Loan Documents
shall be construed to obligate the Lender to perform or discharge any of the
Borrower's obligations, duties or liabilities under the Management Agreement.
3. Upon the occurrence of any default by the Borrower under the
terms of the Management Agreement, the Manager shall, promptly upon becoming
aware thereof, provide the Lender with notice in writing thereof, and after
receipt of said notice, the Lender shall have the same time period within which
to cure said default as the Borrower has under the Management Agreement although
the Borrower and the Manager understand that the Lender shall not have any
obligation to do so. Notwithstanding the foregoing, the failure by the Manager
to notify the Lender of a default under the Management Agreement shall not be
deemed to constitute a waiver by the Manager of such default. Furthermore, the
Borrower and the Manager agree that the Lender may terminate the Management
Agreement (i) in the event Borrower fails to terminate the Management Agreement
after instruction to do so by Lender in accordance with Section 5.12 of the Loan
Agreement, (ii) in the event that Borrower has given Manager written notice of
an event of default under the Management Agreement beyond applicable cure
periods, (iii) in the event of the Manager's gross negligence, malfeasance or
willful misconduct, or (iv) by giving five days' notice to the Manager upon the
Lender (or a successor owner, as the case may be) obtaining (A) title to the
Property (or any portion thereof) whether by foreclosure, deed-in-lieu of
foreclosure, bankruptcy sale or otherwise, and/or (B) possession of the Property
(or any portion thereof) whether personally or through an agent, a receiver or a
trustee. If the Lender elects to terminate the Management Agreement in
accordance with this Paragraph 3, the Borrower and the Manager understand and
agree that the Manager shall look solely to the Borrower for any and all fees,
charges or other sums payable to the Manager under the Management Agreement. If
the Management Agreement shall be so terminated by the Lender, the Manager
agrees to cooperate with the Lender to ensure a smooth transition to the new
property manager.
4. The Manager hereby confirms that if the Debt has not been repaid
in full on or before the Stated Maturity Date, the term of the Management
Agreement may only be renewed or extended beyond the Stated Maturity Date with
the prior written approval of the Servicer.
5. This letter shall inure to the benefit of the Lender and its
successors and assigns, including the trustee in a Secondary Market Transaction.
In the event of any inconsistency or conflict with the provisions of this letter
and the provisions of the Management Agreement, the provisions of this letter
shall control.
6. The Manager agrees that it shall not change, amend, modify or
terminate the Management Agreement without the Lender's prior written approval
in each instance, which approval may be given or denied by the Lender in its
sole discretion. If the Manager does so amend, modify or terminate the
Management Agreement without the Lender's prior written approval, such
amendment, modification or termination shall be void AB INITIO.
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7. This letter shall be governed by, and construed in accordance
with, the law of the State of New York.
8. Without limiting the generality of any other provisions
contained herein or in the other Loan Documents, no failure on the part of the
Lender to exercise, and no delay in exercising, any right hereunder or under any
of the other Loan Documents shall operate as a waiver thereof, nor shall any
single or partial exercise of any right preclude any other or further exercise
thereof or the exercise of any other right. The rights and remedies of the
Lender provided herein and in the other Loan Documents are cumulative and are in
addition to, and are not exclusive of, any rights or remedies provided by law or
in equity.
9. The Manager represents and warrants to the Lender that as of the
date hereof (i) the Management Agreement is in full force and effect and has not
been amended, modified, assigned, terminated or supplemented, (ii) the Manager
is not in default under the provisions of the Management Agreement and there is
no condition which, with the giving of notice and/or the lapse of time, would
constitute such a default, and (iii) to the best of Manager's knowledge, the
Borrower is not in default under the provisions of the Management Agreement and
there is no condition which, with the giving of notice and/or the lapse of time,
would constitute such a default.
10. The Manager agrees that it shall not perform its duties under
the Management Agreement or otherwise act in a manner which would result in the
Borrower's failure to be a "SPECIAL PURPOSE BANKRUPTCY REMOTE ENTITY" as defined
in the Loan Agreement; provided, however, that Manager shall not be in breach of
this provision as a result of the economic performance of the Property.
11. This letter may not be amended, modified, terminated or
supplemented without the written approval of each of the Manager, the Borrower
and the Lender.
12. Each Person constituting Borrower hereunder shall have joint and
several liability for the obligations of Borrower hereunder.
13. This Consent and Subordination of Manager may be executed in any
number of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
[Remainder of Page Intentionally Left Blank]
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Very truly yours,
MANAGER:
BEHRINGER HARVARD TIC MANAGEMENT SERVICES
LP, a Texas Limited Partnership
By: ____________________________________
Name:
Title:
AGREED AND CONSENTED
TO AS OF JUNE ___, 2004
BORROWER:
BEHRINGER HARVARD ST. LOUIS
PLACE S, LLC, a Delaware limited
liability company
By: ____________________________________
Name:
Title:
BEHRINGER HARVARD ST. LOUIS
PLACE H, LLC, a Delaware limited
liability company
By: ____________________________________
Name:
Title:
