EXHIBIT 10.54
RECORDING REQUESTED BY AND
AFTER RECORDING RETURN TO:
Midland Loan Services, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Asset No. 00-0000000
Property Address:
0000 Xxxxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
ASSUMPTION AGREEMENT
This Assumption Agreement (this "Agreement") is entered into as of
_____________, 2001, by and among Flint Retail, LLC, a Delaware limited
liability company ("Assignor"), with an address of 00000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000, Xxxxxx Xxxxxxx ("Assignor Principal"), with an address of
00000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, Ramco/West Acres LLC, a Delaware
limited liability company (formerly known as West Acres Commons, LLC)
("Assignee"), with an address of 00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000, and Ramco-Xxxxxxxxxx Properties, L.P., a Delaware
limited partnership ("Assignee Principal"), with an address of 00000
Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, and State Street
Bank and Trust Company, Trustee for Holders of J.P. Mortgage Commercial Mortgage
Finance Corp. Mortgage Pass-Through Certificates, Series 2000-C10 ("Lender"),
with an address of 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000.
RECITALS
A. Assignor is the owner of certain real property located in Genesee
County, Michigan, commonly known as the West Acre Commons, which real property
is more particularly described in Exhibit A attached hereto and incorporated
herein by reference. Such real property, together with all improvements,
fixtures and personal property located thereon is collectively referred to as
the "Property".
B. Lender is the owner and holder of certain documents (the "Loan
Documents") evidencing and securing a loan (the "Loan") made by Xxxxxx Guaranty
Trust Company of New York ("Original Lender") to Assignor, including, without
limitation, all of the following which were executed by Assignor in favor of
Original Lender and dated as of March 31, 2000, unless otherwise indicated:
(i) Fixed Rate Note (the "Note") in the original principal
amount of $9,500,000;
(ii) Mortgage (the "Security Instrument") dated as of March
29, 2000, filed for record April 12, 2000, in the Office of the
Register of Deeds, Recorder of Deeds or County Clerk, as applicable, in
and for Genesee County, Michigan (the "Recording Office") in Liber 4442
at page 387;
(iii) Assignment of Leases (the "Assignment of Leases") filed
for record April 12, 2000, in the Recording Office in Liber 4442 at
page 443;
(iv) Certificate of Management Consent and Acknowledgment of
Property Manager (collectively, the "Management Subordination")
executed by Assignor and Xxxxxxx Group, LLC, a Delaware limited
liability company (the "Manager") in favor of Original Lender;
(v) Two (2) Financing Statements (the "Financing Statements");
(vi) Escrow Agreement For Reserves and Impounds (the "Escrow
Agreement");
(vii) Environmental Indemnity Agreement (the "Environmental
Indemnity");
(viii) Guaranty (the "Guaranty") executed by Assignor
Principal in favor of Original Lender;
(ix) Undelivered Items Letter Agreement (the "Post Closing
Agreement");
(x) Closing Certificate, Loans to One Borrower Certificate and
Disbursement and Receipt Certification (collectively, the "Borrower
Certificates");
(xi) Cash Management Agreement executed by Assignor, Manager
and Original Lender, and Clearing Account Agreement executed by
Assignor, Manager, Original Lender and Keybank National Association
(collectively, the "Account Agreements");
(xii) Subordination, Non-Disturbance and Attornment Agreement
dated as of March 23, 2000, filed for record in the Recording Office in
Liber 4453 at page 672; (collectively, the "Hollywood SNDA"); and
(xiii) Subordination, Non-Disturbance and Attornment
Agreement, filed for record in the Recording Office in Liber 4453 at
page 672; (collectively, the "Xxxxxx Xxxx SNDA").
C. Midland Loan Services, Inc. services the Loan for Lender, as master
servicer, pursuant to that certain Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement") dated as of September 1, 2000.
D. Assignee Principal and Assignor are parties to that certain letter
agreement dated June 7, 2001 (the "Purchase Agreement"), pursuant to which
(collectively, the "Transfer and Assumption"): (1) Assignor formed Assignee as a
wholly owned subsidiary of Assignor, (2) Assignor contributed the Property to
Assignee, (3) Assignor has transferred all of Assignor's membership interest in
Assignee to Assignee Principal, (4) Assignee agreed to assume the Loan, and (5)
Assignee Principal agreed to assume the guaranty obligations of Assignor
Principal with respect to the Loan.
E. Without the prior consent of the Lender, the Transfer and Assumption
would constitute a default under the Loan Documents. The Assignor, Assignor
Principal, Assignee and Assignee Principal have requested Lender's consent to
the Transfer and Assumption, and Lender has agreed to provide such consent
subject to the terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree as follows:
1. Consent to Transfer. Subject to satisfaction of all of the conditions
contained herein, Lender consents to the Transfer and Assumption. This consent
is strictly limited to the Transfer and Assumption described in this Agreement.
This Agreement shall not constitute a waiver or modification of any requirement
of obtaining Lender's consent to any future transfer of the Property or any
portion thereof or interest therein, nor shall it constitute a modification of
the terms, provisions, or requirements in the Loan Documents in any respect
except as expressly provided herein. Assignee specifically acknowledges that any
subsequent transfer of any interest in any of the Property or interest in
Assignee in violation of the Loan Documents shall be a default thereunder. The
Loan Documents are hereby ratified and, except as expressly modified in this
Agreement, remain unmodified and are in full force and effect.
2. Loan Information. The parties hereto have set forth in a side letter
agreement dated of even date herewith (the "Side Letter") the current financial
terms and status of the loan, including but not limited to amounts outstanding,
payment amounts, escrow balances, interest rate, maturity, and fees and expenses
payable in connection with this Agreement and the Transfer and Assumption. In
connection therewith:
(a) All required payments due through September 1, 2001 under the Loan
Documents have been paid.
(b) There are no defenses or claims of setoffs with respect to any sums
or amounts owing under the Loan Documents known to the parties hereto.
(c) Lender is the current owner and holder of the Loan Documents.
(d) To the knowledge of the parties hereto, there is no existing Event
of Default (as defined in the Loan Documents) or event or condition that, with
the giving of notice or passage of time or both, would constitute an Event of
Default.
3. Conditions. In addition to any other conditions set forth herein or
required by Lender, the following are conditions precedent that must be
satisfied prior to the closing of the Transfer and Assumption (the "Closing"):
(a) The execution, acknowledgment, delivery and recordation of this
Agreement and the Side Letter by all of the parties concurrently
with the Closing.
(b) The execution, delivery and recordation or filing, as applicable,
of one more new financing statements, or amendments to existing
financing statements as required by Lender at Closing.
(c) The execution and delivery of a new agreements replacing the
Guaranty, the Management Subordination and the Account Agreements
as required by Lender at Closing.
(d) Assignee's delivery to Lender of satisfactory evidence that all
insurance over the Property required by the Loan Documents (the
"Required Insurance") is in full force and effect as of the
Closing, with all required premiums paid, and contains a
mortgagee's clause (the "Mortgagee's Clause") satisfactory to
Lender in favor of Lender, its successors and/or assigns, c/o
Midland Loan Services, Inc., Master Servicer, Xxxx Xxxxxx Xxx
000000, Xxxxxx Xxxx, Xxxxxxxx 00000-0000; re: Loan Number
00-0000000.
(e) Lender's receipt of a satisfactory Title Endorsement (hereinafter
defined).
(f) The full release and reconveyance of any other liens or monetary
encumbrances against the Property.
(g) Lender's receipt of all of the Required Payments (hereinafter
defined).
(h) Payment of all Required Payments (as defined in the Side Letter).
4. Title Endorsements. At Closing, Assignor shall (a) cause First American
Title Insurance Company to issue such endorsements to Lender's mortgagee's title
insurance policy (Policy No. LP 4025426) in such form as Lender may require
("Title Endorsements"), including showing that the Assignee is the owner of the
Property, changing the effective date of such title policy to the date of the
Closing, and showing that the Loan Documents are in a first lien position, and
(b) pay the cost of the Title Endorsements, any escrow, filing or recording fees
applicable to this transaction, and Lender's costs and expenses incurred in
connection with this Agreement or this transaction, including Lender's
attorneys' fees, if any, incurred in connection with this Agreement or this
transaction.
5. Assignee's Assumption of Loan; Financing Statements. Assignee hereby
expressly assumes the obligation to pay the unpaid balance due and owing on the
Loan, all interest thereon as provided in the Note and all other obligations
under the Loan Documents, with the same force and effect as if Assignee had been
specifically named therein as the original maker, borrower or grantor, as
applicable. Without limiting the generality of the foregoing, Assignee expressly
assumes the obligation to pay all loan installments as they become due and to
observe all obligations of the Loan Documents. Assignee's assumption of the
foregoing obligations (a) is
absolute, unconditional and is not subject to any defenses, waivers, claims or
offsets, (b) shall not be affected or impaired by any agreement, condition,
statement or representation of any person or entity other than Lender. Assignee
expressly agrees that it has read, approved and will comply with and be bound by
all of the terms, conditions, and provisions contained in the Loan Documents.
Assignee specifically agrees that if the Note is recourse, Lender's remedies
shall not in any respect or extent be limited solely to the Property or any
other collateral securing the Loan.
Assignee hereby authorizes Lender to file one or more new financing
statements, or amendments to existing financing statements, covering fixtures
and personal property collateral included in the Property and covered by the
security agreement contained in the Loan Documents, without signature of
Assignee where permitted by law. Assignee hereby confirms that it grants Lender
a security interest in all fixtures and personal property collateral described
in the Loan Documents.
6. Representations of Lender; Limitations. Lender hereby represents and
warrants that (a) Lender is duly authorized to execute, deliver and perform this
Agreement; (b) the entities and/or persons executing this Agreement on behalf of
Lender are duly authorized to execute and deliver this Agreement; (c) there is
no existing Event of Default by Lender, or event or condition that, with the
giving of notice or passage of time, or both, would constitute an Event of
Default of Lender; (d) Lender has no knowledge of any Event of Default by
Assignee or Assignor under the loan documents or this Agreement as of the date
of this Agreement. The parties hereto agree that (a) Lender has made no
representations or warranty, either express or implied regarding the Property
and has no responsibility whatsoever with respect to the Property, its
condition, or its use, occupancy or status, and (b) no claims relating to the
Property, its condition, or its use, occupancy or status, will be asserted
against Lender or its agents, employees, professional consultants, affiliated
entities, successors or assigns, either affirmatively or as a defense.
7. Assignor's Representations and Warranties. Assignor hereby represents and
warrants that:
(a) Assingor is duly authorized to execute, deliver and perform this
Agreement.
(b) Any court or third-party approvals necessary for Assignor to enter
into this Agreement have been obtained.
(c) The entities and/or persons executing this Agreement on behalf of
Assignor are duly authorized to execute and deliver this
Agreement.
(d) This Agreement and the Loan Documents are in full force and effect
and the transactions contemplated therein constitute valid and
binding obligations of Assignor, enforceable against Assignor in
accordance with their terms and have not been modified either
orally or in writing by Assignor, except as set forth herein.
(e) Lender has not waived any requirements of the Loan Documents nor
any of Lender's rights thereunder.
(f) There is no existing Event of Default by Assignor or event or
condition known to Assignor that, with the giving of notice or
passage of time or both, would constitute an Event of Default by
Assignor.
(g) All taxes and assessments applicable to the Property that are due
and payable as of the Closing have been paid.
(h) The next payment for real property taxes applicable to the
Property is due on or before December 1, 2001, and payable without
delinquency or penalty on or before March 1, 2002.
(i) All representations and warranties of Assignor in the Purchase
Agreement are true and correct.
(j) All representations and warranties referred to herein shall be
true as of the date of this Agreement and the Closing and shall
survive the Closing.
(k) There is no bankruptcy, receivership or insolvency proceeding
pending or threatened against Assignor.
Lender is entitled to rely, and has relied, upon these representations and
warranties in the execution and delivery of this Agreement and all other
documents and instruments executed and delivered by Lender in connection with
this Agreement.
8. Assignee's Representations and Warranties. Assignee hereby represents and
warrants that:
(a) Assignee is the owner of the Property and is duly authorized to
execute, deliver and perform this Agreement.
(b) The entities and/or persons executing this Agreement on behalf of
Assignee are duly authorized to execute and deliver this
Agreement.
(c) This Agreement and the Loan Documents are in full force and effect
and the transactions contemplated therein constitute valid and
binding obligations of Assignee, enforceable against Assignee in
accordance with their terms and have not been modified either
orally or in writing by Assignee, except as set forth herein.
(d) Lender has not waived any requirements of the Loan Documents nor
any of Lender's rights thereunder.
(e) There is no existing Event of Default by Assignor or event or
condition known to Assignee that, with the giving of notice or
passage of time or both, would constitute an Event of Default by
Assignee.
(f) All taxes and assessments applicable to the Property that are due
and payable as of the Closing have been paid.
(g) The next payment for real property taxes applicable to the
Property is due on or before December 1, 2001, and payable without
delinquency or penalty on or before March 1, 2002.
(h) All representations and warranties of Assignee in the Purchase
Agreement are true and correct.
(i) All representations and warranties referred to herein shall be
true as of the date of this Agreement and the Closing and shall
survive the Closing.
(j) There is no bankruptcy, receivership or insolvency proceeding
pending or threatened against Assignee.
(k) Assignee does not have any intention to do any of the following
prior to the Closing or within the 180 days following the Closing
(i) seek entry of any order for relief as debtor and a proceeding
under the Code (hereinafter defined), (ii) seek consent to or not
contest the appointment of a receiver or trustee for itself or for
all or any part of its property, (iii) file a petition seeking
relief under any bankruptcy, arrangement, reorganization or other
debtor relief laws, or (iv) make a general assignment for the
benefit of its creditors.
(l) All of the Required Insurance is in full force and effect, with
all required premiums paid, and contains the required Mortgagee's
Clause.
Lender is entitled to rely, and has relied, upon these representations and
warranties in the execution and delivery of this Agreement and all other
documents and instruments executed and delivered by Lender in connection with
this Agreement.
9. Release of Assignor. In reliance on the representations of Assignor
contained in this Agreement, Lender hereby releases Assignor and Assignor
Principal from all liability and obligations under the Loan Documents arising
from and after the Closing, including, but not limited to, repayment of the
Loan, but excepting, without limitation (i) any environmental or other damage to
the Property occurring prior to the Closing, (ii) any obligations arising from
the Purchase Agreement, (iii) any liability related to or arising from
Assignor's acts or omissions occurring prior to the Closing, and (iv) any
liability related to or arising from fraudulent or tortious conduct, including
intentional misrepresentation of financial data presented to Lender.
10. Release of Lender. Subject to and in reliance on the Lender's
representations contained in Paragraph 6, Assignor and Assignor Principal, for
themselves and their agents, employees, representatives, officers, directors,
general partners, limited partners, joint shareholders, beneficiaries, trustees,
administrators, subsidiaries, affiliates, employees, servants and attorneys
(collectively, the "Assignor Releasing Parties"), jointly and severally release
and forever discharge Lender and Midland Loan Services, Inc., and their
respective successors, assigns, partners, directors, officers, employees,
agents, attorneys, administrators, trustees, subsidiaries, affiliates,
beneficiaries, shareholders and representatives from all liabilities,
obligations, costs, expenses, claims and damages, at law or in equity, known or
unknown, which any of the Assignor Releasing Parties may now or hereafter hold
or claim to hold under common law or statutory right, arising in any manner out
of the Property, the Loan, any of the Loan Documents or any of the documents,
instruments or any other transactions relating thereto or the transactions
contemplated thereby. Without limiting the generality of the foregoing, this
release shall include the following matters: (a) all aspects of this Agreement
and the Loan Documents, any negotiations, demands or requests with respect
thereto, and (b) Lender's exercise or attempts to exercise any of its rights
under this Agreement, any of the Loan Documents, at law or in equity. Subject to
the qualifications set forth in this Paragraph 10, the Assignor Releasing
Parties agree that this release is a full, final and complete release and that
it may be pleaded as an absolute bar to any or all suit or suits pending or
which may thereafter be filed or prosecuted by any of the Assignor Releasing
Parties, or anyone claiming by, through or under any of the Assignor Releasing
Parties. The Assignor Releasing Parties agree that this release is binding upon
each of them and their respective agents, employees, representatives, officers,
directors, general partners, limited partners, joint shareholders,
beneficiaries, trustees, administrators, subsidiaries, affiliates, employees,
servants and attorneys.
Subject to and in reliance on the Lender's representations contained in
Paragraph 6, Assignee and Assignee Principal, for themselves and their agents,
employees, representatives, officers, directors, general partners, limited
partners, joint shareholders, beneficiaries, trustees, administrators,
subsidiaries, affiliates, employees, servants and attorneys (collectively, the
"Assignee Releasing Parties"), jointly and severally release and forever
discharge Lender and Midland Loan Services, Inc., and their respective
successors, assigns, partners, directors, officers, employees, agents,
attorneys, administrators, trustees, subsidiaries, affiliates,
beneficiaries, shareholders and representatives from all liabilities,
obligations, costs, expenses, claims and damages, at law or in equity, known or
unknown, which arise out of any matters occuring prior to the Closing in
connection with the transactions contemplated hereby. The Assignee Releasing
Parties agree that this release is a full, final and complete release and that
it may be pleaded as an absolute bar to any or all suit or suits pending or
which may thereafter be filed or prosecuted by any of the Assignee Releasing
Parties, or anyone claiming by, through or under any of the Assignee Releasing
Parties. Subject to the qualifications set forth in this Paragraph 10 the
Assignee Releasing Parties agree that this release is binding upon each of them
and their respective agents, employees, representatives, officers, directors,
general partners, limited partners, joint shareholders, beneficiaries, trustees,
administrators, subsidiaries, affiliates, employees, servants and attorneys.
The releases of Lender contain in this Paragraph shall not apply to
fraud, bad faith, willful misconduct or intentional misrepresentation by or of
the Lender.
11. Ratification and Confirmation of the Loan. Assignee agrees to perform
each and every obligation under the Loan Documents, as specifically modified by
this Agreement, in accordance with their respective terms and conditions.
Assignee ratifies, affirms, reaffirms, acknowledges, confirms and agrees that
the Loan Documents, as specifically modified by this Agreement, remain in full
force and effect and represent legal, valid and binding obligations of Assignee,
enforceable against Assignee in accordance with their terms. Assignee agrees
that this Agreement does not diminish, impair, release or relinquish the liens,
powers, titles, security interests and rights securing or guaranteeing payment
of the Loan, including the validity or first priority of the liens and security
interests encumbering the Property granted Lender by the Loan Documents.
12. Nonwaiver. The parties hereto acknowledge and agree that (a) any
performance or non-performance of the Loan Documents prior to the date of this
Agreement does not affect or diminish Lender's ability to require future
compliance with the Loan Documents, and (b) in the future, Lender will require
strict compliance with and performance of the Loan Documents. Nothing contained
herein shall be construed as a waiver of any of Lender's rights or remedies with
respect to any default under this Agreement or any Loan Document.
13. Bankruptcy of Assignee or Assignee Principal. Assignee covenants and
agrees that in the event Assignee shall (i) file any petition with any
bankruptcy court or be the subject of any petition under the United States
Bankruptcy Code (11 U.S.C. ss.101 et seq., the "Code"), (ii) file or be the
subject of any petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present or
future federal or state act or law relating to bankruptcy, insolvency, or other
relief for debtors, (iii) have sought or consented to or acquiesced in the
appointment of any trustee, receiver, conservator, or liquidator, or (iv) be the
subject of any order, judgment, or decree entered by any court of competent
jurisdiction approving a petition filed against such party for any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future federal or state act
or law relating to bankruptcy, insolvency, or relief for debtors, Lender shall
thereupon be entitled, and Assignee irrevocably consent, to the entry of an
order by a bankruptcy court granting to Lender relief from any automatic stay
imposed by Section 362 of the Code, or otherwise, on or against the exercise of
the rights and remedies otherwise available to Lender as provided in the Loan
Documents, this Agreement or as otherwise provided by law or in equity, and
Assignee irrevocably waives its right to object to, attempt to enjoin or
otherwise interfere
with such relief and the exercise and enforcement by Lender of its rights and
remedies following entry of such order. Without limiting the generality of the
immediately preceding sentence, Assignee agrees that Lender will be entitled to
and it consents to immediate relief from the automatic stay imposed by the Code
to allow Lender to take any and all actions necessary, desirable or appropriate
to enforce any rights Lender may have under the Loan Documents, including, but
not limited to, the right to possession of the Property, collection of rents,
and/or the commencement or continuation of an action to foreclose Lender's liens
and security interests. Assignee further agrees that the filing of any petition
for relief under the Code which postpones, prevents, delays or otherwise hinders
Lender's efforts to collect the amounts due under the Note or to liquidate any
of the collateral therefor shall be deemed to have been filed in bad faith and,
therefore, shall be subject to prompt dismissal or conversion to a liquidation
case under the Code upon motion therefor by Lender. Further, Assignee agrees
that it will not seek, apply for or cause the entry of any order enjoining,
staying, or otherwise prohibiting or interfering with Lender's obtaining an
order granting relief from the automatic stay and enforcement of any rights
which Lender may have under the Loan Documents, including, but not limited to,
Lender's right to possession of the Property, collection of rents and/or the
commencement or continuation of an action to foreclose Lender's liens and
security interests under the Loan Documents.
Assignee Principal covenants and agrees that in the event Assignee
Principal shall (i) file any petition with any bankruptcy court or be the
subject of any petition under the Code, (ii) file or be the subject of any
petition seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any present or future federal
or state act or law relating to bankruptcy, insolvency, or other relief for
debtors, (iii) have sought or consented to or acquiesced in the appointment of
any trustee, receiver, conservator, or liquidator, or (iv) be the subject of any
order, judgment, or decree entered by any court of competent jurisdiction
approving a petition filed against such party for any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any present or future federal or state act or law relating to
bankruptcy, insolvency, or relief for debtors, Lender shall thereupon be
entitled, and Assignee Principal irrevocably consents, to the entry of an order
by a bankruptcy court granting to Lender relief from any automatic stay imposed
by Section 362 of the Code, or otherwise, on or against the exercise of the
rights and remedies otherwise available to Lender as provided in the Loan
Documents, this Agreement or as otherwise provided by law or in equity, and
Assignee Principal irrevocably waives its right to object to, attempt to enjoin
or otherwise interfere with such relief and the exercise and enforcement by
Lender of its rights and remedies following entry of such order. Without
limiting the generality of the immediately preceding sentence, Assignee
Principal agrees that Lender will be entitled to and it hereby consents to
immediate relief from the automatic stay imposed by the Code to allow Lender to
take any and all actions necessary, desirable or appropriate to enforce any
rights Lender may have under the Loan Documents, including, but not limited to,
the right to possession of the Property, collection of rents, and/or the
commencement or continuation of an action to foreclose Lender's liens and
security interests. Assignee Principal further agrees that the filing of any
petition for relief under the Code which postpones, prevents, delays or
otherwise hinders Lender's efforts to collect the amounts due under the Note or
to liquidate any of the collateral therefor shall be deemed to have been filed
in bad faith and, therefore, shall be subject to prompt dismissal or conversion
to a liquidation case under the Code upon motion therefor by Lender. Further,
Assignee Principal agrees that it will not seek, apply for or cause the entry of
any order enjoining, staying, or otherwise prohibiting or interfering with
Lender's obtaining an order granting relief from the automatic stay and
enforcement of any rights which Lender may have
under the Loan Documents, including, but not limited to, Lender's right to
possession of the Property, collection of rents and/or the commencement or
continuation of an action to foreclose Lender's liens and security interests
under the Loan Documents.
14. Compliance with Interest Law. It is the intention of the parties hereto
to conform strictly to any present or future law which has application to the
interest and other charges under the Loan Documents (the "Interest Law").
Accordingly, notwithstanding anything to the contrary in the Loan Documents, the
parties hereto agree that the aggregate amount of all interest or other charges
taken, reserved, contracted for, charged or received under the Loan Documents or
otherwise in connection with the Loan shall under no circumstances exceed the
maximum amount of interest allowed by the Interest Law. If any excess interest
is provided for in the Loan Documents, then any such excess shall be deemed a
mistake and canceled automatically and, if theretofore paid, shall be credited
against the indebtedness evidenced and secured by the Loan Document (the
"Indebtedness") (or if the Indebtedness shall have been paid in full, refunded
by Lender), and the effective rate of interest under the Loan Documents shall be
automatically reduce to the maximum effective contract rate of interest that
Lender may from time to time legally charge under the then applicable Interest
Law with respect to the Loan. To the extent permitted by the applicable Interest
Law, all sums paid or agreed to be paid to Lender for the use, forbearance or
detention of the Indebtedness shall be amortized, prorated, allocated and spread
throughout the full term of the Loan.
15. Further Assurances. The parties hereto agree to do any act or execute
any additional documents required by Lender, from time to time, to correct
errors in the documenting of the Transfer and Assumption, to effectuate the
purposes of this Agreement or to better assure, convey, assign, transfer,
perfect or confirm unto Lender the property and rights intended to be given it
in the Loan Documents.
16. Liability. If any party hereto consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns forever.
17. Severability. If any term, covenant or condition of this Agreement is
held to be invalid, illegal or unenforceable in any respect, this Agreement
shall be construed without such term, covenant or condition and the validity or
enforceability of the remaining terms, covenants or conditions shall not in any
way be affected.
18. Applicable Law; Jurisdiction. This Agreement shall be governed and
construed in accordance with the laws of the state in which the Property is
located. The parties hereto submit to personal jurisdiction in the state courts
located in said state and the federal courts of the United States of America
located in said state for the enforcement of any obligations hereunder and waive
any and all personal rights under the law of any other state to object to
jurisdiction within such state for the purposes of any action, suit, proceeding
or litigation to enforce such obligations.
19. No Restrictions on Performance. The execution and delivery of this
Agreement and compliance with the provisions hereof, will not conflict with, or
constitute a breach of or a default under any agreement or other instrument to
which any party hereto is a party or by which it is bound.
20. Definitions. Unless the context clearly indicates a contrary intent or
unless otherwise specifically provided herein, words used in this Agreement
(including pronouns) shall include the corresponding masculine, feminine or
neuter forms, and the singular form such words shall include the plural and vice
versa. The words "included", "includes" and "including" shall each be deemed to
be followed by the phrase, "without limitation." The words "herein", "hereby",
"hereof", and "hereunder" shall each be deemed to refer to this entire Agreement
and not to any particular paragraph, article or section hereof. Notwithstanding
the foregoing, if any law is amended so as to broaden the meaning of any term
defined in it, such broader meaning shall apply subsequent to the effective date
of such amendment. Where a defined term derives its meaning from a statutory
reference, any regulatory definition is broader than the statutory reference and
any reference or citation to a statute or regulation shall be deemed to include
any amendments to that statue or regulation and judicial and administrative
interpretations of it.
21. Securities Act of 1933. Neither Assignor, Assignee, Assignor Principal,
Assignee Principal nor any agent acting for any of them has offered the Note or
any similar obligation for sale to or solicited any offers to buy the Note or
any similar obligation from any person or party other than Lender, and neither
Assignor, Assignee, Assignor Principal, Assignee Principal nor any agent acting
for any of them will take any action which would subject the sale of the Note to
the provisions of Section 5 of the Securities Act of 1933, as amended.
22. Compliance with Erisa. As of the date of this Agreement, neither
Assignor, Assignee, Assignor Principal, nor Assignee Principal maintains any
employee benefit plan which require compliance with ERISA. If at any time
Assignor, Assignee, Assignor Principal or Assignee Principal shall institute any
employee benefit plans, they shall at all times comply with the requirements of
ERISA.
23. Sole Discretion of Lender. Wherever pursuant to this Agreement, Lender
exercises any right given to it to approve or disapprove, or any arrangement or
term is to be satisfactory to Lender, Lender's decision to approve or disapprove
or to decide that arrangements or terms are satisfactory or not satisfactory
shall be in the sole and absolute discretion of Lender and shall be final and
conclusive, except as may be otherwise expressly and specifically provided
herein.
24. Headings, Etc. The headings and captions of various paragraphs of this
Agreement are for convenience of reference only and are not to be construed as
defining or limiting, in any way, the scope or intent of the provisions hereof.
25. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
when taken together shall constitute one and the same Agreement.
26. Integration, Survival. This Agreement and the Loan Documents embody the
entire agreement by and between the parties hereto with respect to the Loan, and
any and all prior correspondence, discussions or negotiations are deemed merged
therein. Except as otherwise specifically provided herein, all obligations of
any party contained in this Agreement or the Loan Documents shall survive the
Closing and Lender hereby preserves all of its rights against all persons or
entities and all collateral securing the Loan, including, without limitation,
the Property.
27. No Oral Change. This Agreement, and any provisions hereof, may not be
modified, amended, waived, extended, changed, discharged or terminated orally or
by any act or failure to
act on the part of any party hereto, but only by an agreement in writing signed
by the party against whom enforcement of any modification, amendment, waiver,
extension, change, discharge or termination is sought.
28. Notices. Except as otherwise specified herein, any notice, consent,
request or other communication required or permitted hereunder shall be in
writing and shall be deemed properly given if delivered in accordance with the
notice requirements contained in the Loan Documents using the address for a
party hereto set forth at the top of the first page of this Agreement.
29. WAIVER OF JURY TRIAL. THE PARTIES HERETO KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED ON THE LOAN OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR THE LOAN DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF ANY PARTY HERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR LENDER'S CONSENT TO THE TRANSFER AND
ASSUMPTION.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day, month and year
first above written.
ASSIGNEE:
RAMCO/WEST ACRES LLC,
a Delaware limited liability company
By: RAMCO-XXXXXXXXXX PROPERTIES, L.P.,
a Delaware limited partnership,
its Manager
By: Ramco Xxxxxxxxxx Properties Trust,
a Maryland real estate investment trust
its General Partner
By:_____________________________________
Print Name:_____________________________
Title:__________________________________
Witness:
--------------------------------
--------------------------------
ASSIGNEE PRINCIPAL:
RAMCO-XXXXXXXXXX PROPERTIES, L.P.,
a Delaware limited partnership
By: Ramco Xxxxxxxxxx Properties Trust,
a Maryland real estate investment trust
its General Partner
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Witness:
--------------------------------
--------------------------------
ASSIGNOR:
FLINT RETAIL, LLC,
a Delaware limited liability company
By: Xxxxxxx Xxxxx, Inc.,
A Delaware corporation,
Its Manager
By: _____________________________
Xxxxxx X. Xxxxxxxx, Vice President
Witness:
-----------------------------
-----------------------------
ASSIGNOR PRINCIPAL:
_____________________________________
Xxxxxx Xxxxxxx
Witness:
-----------------------------
-----------------------------
LENDER:
STATE STREET BANK AND TRUST COMPANY, TRUSTEE FOR
HOLDERS OF X.X. XXXXXX COMMERCIAL FINANCE CORP.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C10
By: Midland Loan Services, Inc.,
Delaware corporation,
Its Attorney-in-Fact
By: __________________________________________
X.X. Xxxxxx, Servicing Officer
Witness:
-----------------------------
-----------------------------
ACKNOWLEDGMENT(S)
STATE OF OHIO )
) ss.
COUNTY OF _____________ )
The foregoing instrument was acknowledged before me this _____________,
2001 by Xxxxxx X. Xxxxxxxx as Vice President of Xxxxxxx Xxxxx, Inc., a Delaware
corporation, the Manager of Flint Retail, LLC, a Delaware limited liability
company, on behalf of said entities.
_________________________________
Notary Public, _______ County, Ohio
My Commission Expires: ____________
STATE OF OHIO )
) ss.
COUNTY OF _____________ )
The foregoing instrument was acknowledged before me this _____________,
2001 by Xxxxxx Xxxxxxx.
_________________________________
Notary Public, _______ County, Ohio
My Commission Expires: ____________
STATE OF MICHIGAN )
) ss.
COUNTY OF _____________ )
The foregoing instrument was acknowledged before me this _____________,
2001 by ________________ as _________________ of Ramco Xxxxxxxxxx Properties
Trust, a Maryland real estate investment trust, as General Partner of
Ramco-Xxxxxxxxxx Properties, L.P., a Delaware limited partnership, as the
Manager of Ramco/West Acres LLC, a Delaware limited liability company, on behalf
of said entities.
_________________________________
Notary Public, _______ County, Michigan
My Commission Expires: ____________
STATE OF MICHIGAN )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this _____________,
2001 by ____________ as _______________ of Ramco Xxxxxxxxxx Properties Trust, a
Maryland real estate investment trust, as General Partner of Ramco-Xxxxxxxxxx
Properties, L.P., a Delaware limited partnership, on behalf of said entities.
_________________________________
Notary Public, _______ County, Michigan
My Commission Expires: ____________
STATE OF MISSOURI )
) ss.
COUNTY OF XXXXXXX )
On this _____ day of September, 2001, before me, a Notary Public in and
for the State of Missouri, personally appeared X.X. Xxxxxx, personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person who
executed this instrument, on oath stated that he was authorized to execute said
instrument, and acknowledged that he is the Servicing Officer of Midland Loan
Services, Inc., a Delaware corporation, the Master Servicer and Attorney-in-Fact
for State Street Bank and Trust Company, Trustee for Holders of X.X. Xxxxxx
Commercial Mortgage Finance Corp. Mortgage Pass-Through Certificates, Series
2000-C10, and that said instrument was signed in behalf of said corporation by
authority of its board of directors, and said X.X. Xxxxxx acknowledged said
instrument to be the free and voluntary act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the
day and year first above written.
(seal) _______________________________________
_______________________________________
(Print Name) NOTARY PUBLIC in and for the
State of Missouri
My appointment expires:
___________________________________
DRAFTED BY:
Xxxxxxx X. Xxxxxxx
Xxxxxxxx & Xxxxxx L.L.P.
0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
EXHIBIT A
LEGAL DESCRIPTION
Legal Description
Township of Flint
Part of the Southeast 1/4 of Section 17, Town 7 North, Range 6 East, Flint
Township, Genesee County, Michigan, being Lots 5, 27, and 28 and part of Xxxx 0,
0, 0, 0, 00 xxx 00 xx Xxxx Acres, as recorded in Liber 13, Page 56 of Plats,
Genesee County Records and further described as beginning at the Southeast
corner of Lot 28 of the Plat of West Acres said corner being North 00 degrees 58
minutes 01 seconds West 440.00 feet and South 89 degrees 06 minutes 00 seconds
West 40.00 feet from the Southeast corner of said Section 17, Town 7 North,
Range 6 East, Flint Township, Genesee County, Michigan; thence South 89 degrees
06 minutes 00 seconds West 360.00 feet; thence South 00 degrees 58 minutes 01
seconds East 390.00 feet to the South line of said Plat; thence South 89 degrees
06 minutes 00 seconds West 45.70 feet along the South line of said Plat; thence
North 02 degrees 12 minutes 24 seconds East 16.67 feet; thence North 05 degrees
01 minutes 46 seconds East 50.01 feet; thence North 00 degrees 50 minutes 52
seconds West 161.08 feet; thence South 88 degrees 36 minutes 58 seconds West
130.54 feet; thence South 01 degrees 12 minutes 50 seconds East 226.37 feet to
the South line of said Plat; thence South 89 degrees 06 minutes 00 seconds West
329.21 feet, along the South line of said Plat; thence North 00 degrees 54
minutes 34 seconds West 237.04 feet; thence South 89 degrees 06 minutes 00
seconds West 151.61 feet; thence North 00 degrees 54 minutes 34 seconds West
452.78 feet; thence North 89 degrees 06 minutes 58 seconds East 1008.91 feet to
the Southeast corner of Lot 26 of said West Acres; thence South 00 degrees 58
minutes 01 seconds East 299.53 feet along the West Right-of-Way of Linden Road
to the point of beginning.
Tax Item No. 00-00-000-000
