EXHIBIT 10.18
After recording, return to:
Bilzin Xxxxxxx Xxxxx
Price & Xxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000
Attn: Post-Closing Department
TITLE OF DOCUMENT: NOTE AND DEED OF TRUST ASSUMPTION AGREEMENT
DATE: November 22nd, 2005
ORIGINAL BORROWER: ECM BROADWAY, LLC, a Delaware limited liability company
NEW BORROWER: XXXX XX COLUMBIA MO, LLC, a Delaware limited liability
company
LENDER: XXXXX FARGO BANK, N.A., A NATIONAL BANKING ASSOCIATION,
SUCCESSOR BY MERGER TO XXXXX FARGO BANK MINNESOTA,
N.A., AS TRUSTEE FOR THE REGISTERED HOLDERS OF WACHOVIA
BANK COMMERCIAL MORTGAGE TRUST, COMMERCIAL MORTGAGE
PASS-THOUGH CERTIFICATES, SERIES 2003-C6
LEGAL DESCRIPTION: See attached Exhibit "A".
(WBCMT 2003-C6; LOAN NO. 502762716)
THIS NOTE AND DEED OF TRUST ASSUMPTION AGREEMENT ("AGREEMENT") dated as of
November 22nd, 2005, is entered into among XXXXX FARGO BANK, N.A., A NATIONAL
BANKING ASSOCIATION, SUCCESSOR BY MERGER TO XXXXX FARGO BANK MINNESOTA, N.A., AS
TRUSTEE FOR THE REGISTERED HOLDERS OF WACHOVIA BANK COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THOUGH CERTIFICATES, SERIES 2003-C6 ("LENDER"), having
an address at 0000 Xxx Xxxxxxxxx Xxxx, XXX X0000-000, Xxxxxxxx, Xxxxxxxx
00000-0000, Attn: Corporate Trust Services CMBS Re: WBCMT 2003-
C6; Loan No 502762716; ECM BROADWAY, LLC, a Delaware limited liability company
("ORIGINAL BORROWER"), having an address at c/o Equity Capital Management LLC,
000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and XXXX XX COLUMBIA MO,
LLC, a Delaware limited liability company ("NEW BORROWER"), having an address at
c/o Cole Capital Partners, 0000 X. Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx
00000. New Borrower's taxpayer identification number is 00-0000000. Original
Borrower and New Borrower are hereinafter sometimes collectively referred to as
"BORROWER PARTIES".
PRELIMINARY STATEMENT
A. Original Borrower is the current owner of fee title to that certain
real property ("LAND") and the buildings and improvements thereon
("IMPROVEMENTS"), commonly known as "Walgreens Store No. 5145" located at 000
Xxxx Xxxxxxxx in Columbia, Xxxxx County, Missouri, more particularly described
in EXHIBIT A attached hereto and made a part hereof (the Land and the
Improvements are hereinafter sometimes collectively referred to as the
"PROJECT").
B. Lender is the current owner and holder of a loan ("LOAN") in the
original principal amount of $4,645,369.00, as evidenced and/or secured by the
documents described on EXHIBIT B attached hereto (together with any and all
other agreements, documents, instruments evidencing, securing or in any manner
relating to the Loan, as all of the same may be amended, restated, supplemented
or otherwise modified from time to time, shall hereinafter be collectively
referred to as the "LOAN DOCUMENTS"). The Loan is secured by the Project, which
Project is described in and encumbered by the "SECURITY INSTRUMENT" described on
EXHIBIT B.
C. New Borrower desires to purchase the Project from Original Borrower and
to assume Original Borrower's obligations under the Loan Documents as provided
herein.
D. A sale of the Project to, and the assumption of the Loan by, a third
party without the consent of the holder of the Security Instrument is prohibited
by the terms thereof.
E. The Lender has agreed to consent to the following requested actions
(collectively the "REQUESTED ACTIONS"): (i) Original Borrower selling the
Project to New Borrower and (ii) New Borrower assuming all of Original
Borrower's obligations under the Loan Documents, on the terms and conditions
hereinafter set forth.
In consideration of $10.00 paid by each of the parties to the other, the
mutual covenants set forth below, and other good and valuable consideration,
receipt and sufficiency of which are acknowledged, the parties agree as follows:
ARTICLE 1
ACKNOWLEDGMENTS, WARRANTIES AND REPRESENTATIONS
1.1 ORIGINAL BORROWER REPRESENTATIONS. As a material inducement to Lender
to enter into this Agreement and to consent to the Requested Actions, Original
Borrower acknowledges, warrants, represents and agrees to and with Lender as
follows:
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(a) Incorporation of Recitals. All of the facts set forth in the
Preliminary Statement of this Agreement are true and correct and incorporated
into this Agreement by reference.
(b) Authority of Original Borrower.
(i) Original Borrower. Original Borrower is a duly organized,
validly existing limited liability company in good standing under the laws of
the State of Delaware and is qualified to transact business in the State of
Missouri. ECM Mezzanine Holdings, LLC ("ECM MEZZANINE") is the sole member of
Original Borrower. ECM Mezzanine, acting alone without the joinder of any other
manager or member of Original Borrower or any other party, has the power and
authority to execute this Agreement on behalf of and to duly bind Original
Borrower under this Agreement. The execution and delivery of, and performance
under, this Agreement by Original Borrower has been duly and properly authorized
pursuant to all requisite company action and will not (i) violate any provision
of any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to Original
Borrower or the certificate of formation, operating agreement, limited liability
company agreement or any other organizational document of Original Borrower or
(ii) result in a breach of or constitute or cause a default under any indenture,
agreement, lease or instrument to which Original Borrower is a party or by which
the Project may be bound or affected.
(ii) ECM Mezzanine. ECM Mezzanine is a duly organized, validly
existing limited liability company in good standing under the laws of the State
of Delaware and is qualified to transact business in the State of Missouri. ECM
Income & Growth Fund, LLC ("ECM INCOME") is the sole member of ECM Mezzanine.
ECM Income, acting alone without the joinder of any other manager or member of
ECM Mezzanine or any other party, has the power and authority to execute this
Agreement on behalf of and to duly bind ECM Mezzanine and Original Borrower
under this Agreement. The execution and delivery of, and performance under, this
Agreement by ECM Mezzanine has been duly and properly authorized pursuant to all
requisite company action and will not (i) violate any provision of any law,
rule, regulation, order, writ, judgment, injunction, decree, determination or
award presently in effect having applicability to ECM Mezzanine or the
certificate of formation, operating agreement, limited liability company
agreement or any other organizational document of ECM Mezzanine or (ii) result
in a breach of or constitute or cause a default under any indenture, agreement,
lease or instrument to which ECM Mezzanine is a party or by which the Project
may be bound or affected.
(iii) ECM Income. ECM Income is a duly organized, validly
existing limited liability company in good standing under the laws of the State
of Delaware. ECM Equity Investments GP, L.L.C. ("ECM EQUITY") is the manager of
ECM Income. ECM Equity, acting alone without the joinder of any other manager or
member of ECM Income or any other party, has the power and authority to execute
this Agreement on behalf of and to duly bind ECM Income, ECM Mezzanine and
Original Borrower under this Agreement. The execution and delivery of, and
performance under, this Agreement by ECM Income has been duly and properly
authorized pursuant to all requisite company action and will not (i) violate any
provision of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to ECM
Income or the certificate of formation, operating agreement, limited liability
company agreement or any other organizational document of ECM
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Income or (ii) result in a breach of or constitute or cause a default under any
indenture, agreement, lease or instrument to which ECM Income is a party or by
which the Project may be bound or affected.
(iv) ECM Equity. ECM Equity is a duly organized, validly
existing limited liability company in good standing under the laws of the State
of Delaware. Xxxxxx Xxxxxx ("AUTHORIZED PERSON") is a member of ECM Equity.
Authorized Person, acting alone without the joinder of any other any other
manager or member of ECM Equity or any other party, has the power and authority
to execute this Agreement on behalf of and to duly bind ECM Equity, ECM Income,
ECM Mezzanine and Original Borrower under this Agreement. The execution and
delivery of, and performance under, this Agreement by ECM Equity has been duly
and properly authorized pursuant to all requisite company action and will not
(i) violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to ECM Equity or the certificate of formation, operating
agreement, limited liability company agreement or any other organizational
document of ECM Equity or (ii) result in a breach of or constitute or cause a
default under any indenture, agreement, lease or instrument to which ECM Equity
is a party or by which the Project may be bound or affected.
(c) Compliance with Laws. All permits, licenses, franchises or other
evidences of authority (collectively, "OPERATING PERMITS") to use and operate
the Project as it is presently being operated and as contemplated by the Loan
Documents, (other than Operating Permits which are the responsibility of, or
required for Tenant's (as defined below) occupancy of the Project or the
operation of Tenant's business, as to which Original Borrower makes no
representation or warranty) are current, valid and in full force and effect.
Original Borrower has not received any written notice from any governmental
entity claiming that Original Borrower or the Project is not presently in
compliance with any laws, ordinances, rules and regulations bearing upon the use
and operation of the Project, including, without limitation, any notice relating
to any violations of zoning, building, environmental, fire, health, or other
laws, ordinances, rules, codes or regulations.
(d) Leases. The lease ("LEASE") between Original Borrower and
Walgreen Co. ("TENANT") is the only lease affecting the Project and is currently
in full force and effect. Original Borrower has not been notified of any
landlord default under the Lease; there are no leasing broker's or finder's
commissions of any kind due or to become due with respect to the Lease or the
Project; Original Borrower has not received any prepaid rents or given any
concessions for free or reduced rent under the Lease and will not accept any
prepaid rents for more than one month in advance. Tenant is currently in
possession of and is operating its business from its leased premises.
(e) Title to Project and Legal Proceedings. Original Borrower is the
current owner of fee title in the Project. There are no pending or, to the best
of Original Borrower's knowledge, threatened suits, judgments, arbitration
proceedings, administrative claims, executions or other legal or equitable
actions or proceedings against Original Borrower or the Project, or any pending
or, to the best of Original Borrower's knowledge, threatened condemnation
proceedings or annexation proceedings affecting the Project, or any agreements
to convey any portion of the fee interest in the Project, or any rights thereto
to any person, entity, or government body or agency not disclosed in this
Agreement.
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(f) Loan Documents. The Loan Documents constitute valid and legally
binding obligations of Original Borrower enforceable against Original Borrower
as limited herein, and the Project in accordance with their terms. Original
Borrower acknowledges and agrees that, except as set forth in section 3.2 below,
nothing contained in this Agreement, nor the Requested Actions, shall release or
relieve Original Borrower from its obligations, agreements, duties, liabilities,
covenants and undertakings under the Loan Documents arising prior to the
Acquisition Date (as defined below). Original Borrower has no defenses, setoffs,
claims, counterclaims or causes of action of any kind or nature whatsoever
against Lender or any of Lender's predecessors in interest, and any subsidiary
or affiliate of Lender and all of the past, present and future officers,
directors, contractors, employees, agents, servicers (including, but not limited
to, Wachovia Bank, N.A. and LNR Partners, Inc.), attorneys, representatives,
participants, successors and assigns of Lender and Lender's predecessors in
interest (collectively, "LENDER PARTIES") or with respect to (i) the Loan, (ii)
the Loan Documents, or (iii) the Project. In consideration of the agreements of
Lender hereunder, to the extent Original Borrower would be deemed to have any
such defenses, setoffs, claims, counterclaims or causes of action as of the date
hereof, Original Borrower knowingly waives and relinquishes them.
(g) Bankruptcy. Original Borrower has no intent to (i) file any
voluntary petition under any Chapter of the Bankruptcy Code, Title 11, U.S.C.A.
("BANKRUPTCY CODE"), or in any manner to seek any proceeding for relief,
protection, reorganization, liquidation, dissolution or similar relief for
debtors ("DEBTOR PROCEEDING") under any local, state, federal or other
insolvency law or laws providing relief for debtors, (ii) directly or indirectly
to cause any involuntary petition under any Chapter of the Bankruptcy Code to be
filed against Original Borrower or any members, officers or shareholders thereof
or (iii) directly or indirectly to cause the Project or any portion or any
interest of Original Borrower in the Project to become the property of any
bankrupt estate or the subject of any Debtor Proceeding.
(h) No Default. To the best of Original Borrower's knowledge, no
event, fact or circumstance has occurred or failed to occur which constitutes,
or with the lapse or passage of time, giving of notice or both, could constitute
a default or Event of Default under the Loan Documents.
(i) Reaffirmation. Original Borrower reaffirms and confirms the
truth and accuracy of all representations and warranties set forth in the Loan
Documents, in all material respects, as if made on the date hereof.
1.2 ACKNOWLEDGMENTS, WARRANTIES AND REPRESENTATIONS OF NEW BORROWER. As a
material inducement to Lender to enter into this Agreement and to consent to the
Requested Actions, New Borrower acknowledges, warrants, represents and agrees to
and with Lender as follows:
(a) Incorporation of Recitals. All of the facts set forth in the
Preliminary Statement of this Agreement are true and correct and incorporated
into this Agreement by reference.
(b) Authority of New Borrower.
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(i) New Borrower. New Borrower is a duly organized, validly
existing limited liability company in good standing under the laws of the State
of Delaware and is qualified to transact business in the State of Missouri. Xxxx
REIT Advisors II, LLC ("NEW BORROWER Manager") is the manager of New Borrower.
New Borrower Manager, acting alone without the joinder of any other manager or
member of New Borrower or any other party, has the power and authority to
execute this Agreement on behalf of and to duly bind New Borrower under this
Agreement and the Loan Documents. The execution and delivery of, and performance
under, this Agreement and the Loan Documents by New Borrower has been duly and
properly authorized pursuant to all requisite company action and will not (i)
violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to New Borrower or the articles of organization, certificate of
formation, operating agreement, limited liability company agreement, or any
other organizational document of New Borrower or (ii) result in a breach of or
constitute or cause a default under any indenture, agreement, lease or
instrument to which New Borrower is a party or by which the Project may be bound
or affected.
(ii) New Borrower Manager. New Borrower Manager is a duly
organized, validly existing limited liability company in good standing under the
laws of the State of Delaware. Xxxx X. Xxxx ("AUTHORIZED OFFICER") is the Senior
Vice President of New Borrower Manager. Authorized Officer is, acting alone
without the joinder of any other officer of New Borrower Manager or any other
party, has the power and authority to execute this Agreement on behalf of and to
duly bind New Borrower Manager and New Borrower under this Agreement and the
Loan Documents. The execution and delivery of, and performance under, this
Agreement by New Borrower Manager has been duly and properly authorized pursuant
to all requisite company action and will not (i) violate any provision of any
law, rule, regulation, order, writ, judgment, injunction, decree, determination
or award presently in effect having applicability to New Borrower Manager or the
articles of organization, certificate of formation, limited liability company
agreement, or the operating agreement of New Borrower Manager or any other
organizational document of New Borrower Manager or (ii) result in a breach of or
constitute or cause a default under any indenture, agreement, lease or
instrument to which New Borrower Manager is a party or by which the Project may
be bound or affected.
(c) Financial Statements. The financial statements and other
information ("FINANCIAL STATEMENTS") of Xxxx Credit Property Trust II, Inc.
("PRINCIPAL") which have been previously delivered to Lender are true, complete
and accurate in all material respects and accurately represent the financial
condition of Principal as of the date thereof. All of the assets shown on each
Principal's Financial Statements are owned by such Principal, individually, as
its sole and separate property, and not otherwise jointly with any other person
or entity. There has not been any material adverse change to the financial
condition of Principal between the date of the Financial Statements and the date
of this Agreement. New Borrower also acknowledges and agrees to cause Principal
to timely comply with all financial, bookkeeping and reporting requirements set
forth in the Loan Documents, including, without limitation, those set forth in
Section 1.18 of the Security Instrument. New Borrower acknowledges that the
Financial Statements have been provided to Lender to induce Lender to enter into
this Agreement and are being relied upon by Lender for such purposes. Lender
agrees that since New Borrower is a single member limited liability company, to
the extent that New Borrower's sole member files a tax return instead of New
Borrower, that it will provide Lender with the tax returns for New Borrower's
member instead of New Borrower. Similarly, to the extent that the balance sheets
6
and financial statement of New Borrower are consolidated with those of New
Borrower's sole member, that the consolidated balance sheets and financial
statements will clearly identify the assets and liabilities of New Borrower as
belonging to New Borrower and will provide Lender with copies of said
consolidated balance sheets and financial statements.
(d) Bankruptcy Proceedings. Neither New Borrower nor any of New
Borrower's managers, members, affiliates or other entities which may be owned or
controlled directly or indirectly by New Borrower or its managers or members
("RELATED ENTITIES") has been a party to any Debtor Proceeding (as hereinafter
defined) within seven (7) years prior to the date of this Agreement.
(e) Defaults on Other Indebtedness. Neither New Borrower nor any
Related Entities has materially defaulted under its or their obligations with
respect to any other indebtedness.
(f) New Borrower's Organizational Documents. New Borrower has not
transacted any business in New Borrower's name since its formation. New Borrower
is and will continue to be in full compliance with all of its organizational
documents and such organizational documents do not conflict with any of the
single purpose entity and separateness requirements of the Loan Documents.
(g) Assets of New Borrower. The only assets of New Borrower are the
Project, the personal property owned by New Borrower and used in connection with
the Project and cash or cash equivalents.
(h) Management of Project. Because the Lease is "triple-net", Tenant
manages the Project in its own name and for its own account. Nevertheless, New
Borrower has engaged Fund Realty Advisors, Inc., an Arizona corporation, an
affiliate of New Borrower ("PROJECT MANAGER"), to provide certain management
services for the Project on behalf of New Borrower. New Borrower covenants and
agrees to comply with all terms and conditions of the Loan Documents concerning
the management of the Project, including without limitation the obligation to
obtain Lender's consent to the management of the Project by any entity other
than Tenant or Manager.
(i) Loans to Related Entities. There are no loans payable by New
Borrower to any member(s) of New Borrower or any other Related Entities.
(j) New Borrower Parties' Interests. Neither New Borrower nor any of
its members or managers is obtaining a loan to finance its interest in New
Borrower or the Project or pledging its interest in New Borrower to any party,
and none of New Borrower's members have any right to take over control from any
of such other members.
(k) Prohibited Person. New Borrower warrants and represents, after
review of the website identified below, that neither New Borrower nor Principal
nor any of their respective officers, directors, shareholders, partners, members
or affiliates (including the holders of indirect equity interests in New
Borrower) is an entity or person (i) that is listed in the Annex to, or is
otherwise subject to the provisions of, Executive Order 13224, issued on
September 24, 2001 ("EO13224"), (ii) whose name appears on the United States
Treasury Department's Office of Foreign Assets Control ("OFAC") most current
list of "SPECIFICALLY DESIGNATED NATIONAL AND
7
BLOCKED PERSONS" (which list may be published from time to time in various media
including, but not limited to, the OFAC website,
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxx/ t11sdn.pdf, (iii) who
commits, threatens to commit or supports "TERRORISM", as that term is defined in
EO13224, or (iv) who, to the knowledge of New Borrower, is otherwise affiliated
with any entity or person listed above (any and all parties or persons described
in clauses [i] - [iv] above are herein referred to as a "PROHIBITED PERSON").
New Borrower covenants and agrees that neither New Borrower nor Principal nor
any of their respective officers, directors, shareholders, partners, members or
affiliates (including the holders of indirect equity interests in New Borrower)
will (a) knowingly conduct any business, nor engage in any transaction or
dealing, with any Prohibited Person, including, but not limited to, the making
or receiving of any contribution of funds, goods, or services, to or for the
benefit of a Prohibited Person, or (b) knowingly engage in or conspire to engage
in any transaction that evades or avoids, or has the purpose of evading or
avoiding, or attempts to violate, any of the prohibitions set forth in EO13224.
New Borrower further covenants and agrees to deliver (from time to time) to
Lender any such certification as may be requested by Lender in its reasonable
discretion, confirming that, based on reasonable inquiry (x) neither New
Borrower nor Principal nor any of their respective officers, directors,
shareholders, partners, members or affiliates (including the holders of indirect
equity interests in New Borrower) is a Prohibited Person and (y) neither New
Borrower, Principal or their respective officers, directors, shareholders,
partners, members or affiliates (including the holders of indirect equity
interests in New Borrower) has (a) knowingly conducted any business, nor engaged
in any transaction or dealing, with any Prohibited Person, including, but not
limited to, the making or receiving of any contribution of funds, goods, or
services, to or for the benefit of a Prohibited Person or (b) knowingly engaged
in or conspired to engage in any transaction that evaded or avoided, or had the
purpose of evading or avoiding, or attempted to violate, any of the prohibitions
set forth in EO13224.
(l) Loan Documents. The Loan Documents, from and after the
Acquisition Date, are valid and legally binding obligations of New Borrower,
enforceable against New Borrower and the Project in accordance with their terms.
This Agreement and the execution of other documents contemplated hereby do not
constitute the creation of a new debt or the extinguishment of the debt
evidenced by the Loan Documents, nor will they in any way affect or impair the
liens and security interests created by the Loan Documents, which New Borrower
acknowledges to be valid and existing liens and security interests in the
Project. New Borrower agrees that the lien and security interests created by the
Loan Documents continue to be in full force and effect, unaffected and
unimpaired by this Agreement or by the transfer of the Project or any collateral
described in financing statements filed in connection with the Loan Documents
and that said liens and security interests shall so continue in their perfection
and priority until the debt secured by the Loan Documents is fully discharged.
New Borrower has no defenses, affirmative defenses, setoffs, claims,
counterclaims, crossclaims or causes of action of any kind or nature whatsoever
against the Lender Parties with respect to (i) the Loan, (ii) the Loan
Documents, or (iii) the Project. To the extent New Borrower would be deemed to
have any such defenses, affirmative defenses, setoffs, claims, counterclaims,
crossclaims or causes of action as of the date hereof, New Borrower knowingly
waives and relinquishes them. New Borrower acknowledges that it has received
copies of all of the Loan Documents.
(m) No Default. To New Borrower's actual knowledge, no event, fact
or circumstance has occurred or failed to occur which constitutes, or with the
lapse or passage of
8
time, giving of notice or both, could constitute a default or Event of Default
under the Loan Documents.
(n) Inspections. Other than that certain Property Condition Report
for the Project and that certain Phase 1 Environmental Site Assessment for the
Project, both dated July 7, 2005, and prepared by IVI International, Inc., under
Project No. 50616719, and that certain Survey of the Project prepared by
Allstate Consultants, P.C. under Project No. 05246.01, New Borrower has not
obtained any other written inspection reports relating to the Project.
(o) Reaffirmation. To New Borrower's actual knowledge, New Borrower
affirms and confirms the truth and accuracy of all representations and
warranties set forth in the Loan Documents, in all material respects, as if made
on the date hereof.
ARTICLE 2
ACKNOWLEDGEMENTS AND COVENANTS OF BORROWER PARTIES
As a material inducement to Lender to enter into this Agreement and to
consent to Requested Actions each of Borrower Parties, as to itself only,
acknowledges, warrants, represents, covenants and agrees to and with Lender as
follows:
2.1 ASSUMPTION OF LOAN. New Borrower hereby assumes the indebtedness due
under the Note, the Loan and all of Original Borrower's other obligations, as
grantor, mortgagor, borrower, assignor, trustor, indemnitor, guarantor, or
maker, as the case may be, under the Loan Documents to the same extent as if New
Borrower had signed such instruments. New Borrower agrees to comply with and be
bound by all the terms, covenants and agreements, conditions and provisions set
forth in the Loan Documents.
2.2 INDEBTEDNESS. As of November 16, 2005, the outstanding principal
balance of the Loan was $4,493,972.67 and no escrow or reserve balances
(collectively, "ESCROW BALANCES") are being held by Lender. Further, New
Borrower acknowledges and agrees that Lender may require the deposit of
insurance and tax escrow amounts in the event of a default under the Loan
Documents or if Tenant is not in compliance with its required payment of taxes
and maintenance of insurance on the Project. In the event of any error in, or
omission from, the foregoing, Lender shall not be prejudiced, limited, or
estopped, in any way in its right to charge, collect and receive any and all
monies lawfully due Lender under the Loan Documents.
2.3 ASSUMPTION FEE. Simultaneously with or prior to the execution hereof,
any or both of Borrower Parties shall pay to or has paid Lender: (i) an
application fee of $5,000.00; (ii) an assumption fee equal to $22,469.86, which
is 0.5% of the outstanding principal balance of the Loan; (iii) an
administration fee equal to $125.00; (iv) a flood determination fee equal to
$15.00; (v) a credit review fee equal to $100.00; (iv) an insurance review fee
equal to $400.00; and (v) a master servicer fee equal to $300.00, each of which
Borrower Parties agree are fees for new consideration and are not interest
charged in connection with the Loan. Lender acknowledges receipt of the
$5,000.00 assumption fee deposit and $7,500.00 retainer for Lender's counsel.
2.4 PAYMENT OF TRANSACTION COSTS AND EXPENSES. Any or both of Borrower
Parties shall pay at the time of execution of this Agreement by Lender: (a) the
legal fees and disbursements of Lender's counsel, Bilzin Xxxxxxx Xxxxx Price &
Xxxxxxx LLP, in connection
9
with the preparation of this Agreement and the transactions contemplated in this
Agreement; (b) all recording costs and documentary stamps, or other taxes if
any, due upon the recording of this Agreement; and (c) the costs of updating
Lender's policy of title insurance insuring the Security Instrument to a current
date and endorsing such policy to include this Agreement in the description of
the Security Instrument with no additional exceptions, or, at Lender's option,
the cost of obtaining a new Lender's policy of title acceptable to Lender
insuring the Loan Documents as affected by this Agreement.
2.5 RELEASE AND COVENANT NOT TO XXX. In consideration of the agreements of
Lender hereunder, each of Borrower Parties, as to itself and all of its heirs,
successors and assigns only, remises, releases, acquits, satisfies and forever
discharges Lender Parties from any and all manner of debts, accountings, bonds,
warranties, representations, covenants, promises, contracts, controversies,
agreements, liabilities, obligations, expenses, damages, judgments, executions,
actions, inactions, claims, demands and causes of action of any nature
whatsoever, at law or in equity, known or unknown, either now accrued or
subsequently maturing, which any of Borrower Parties now has or hereafter can,
shall or may have by reason of any matter, cause or thing, from the beginning of
the world to and including the Acquisition Date, including, without limitation,
matters arising out of or relating to (a) the Loan (b) the Loan Documents, and
(c) the Project. Each of Borrower Parties, as to itself and all of its
respective heirs, successors and assigns only, covenants and agrees never to
institute or cause to be instituted or continue prosecution of any suit or other
form of action or proceeding of any kind or nature whatsoever against any of
Lender Parties by reason of or in connection with any of the foregoing matters,
claims or causes of action.
2.6 FURTHER ASSURANCES. Borrower Parties shall execute and deliver to
Lender such agreements, instruments, documents, financing statements and other
writings as may be requested from time to time by Lender to perfect and to
maintain the perfection of Lender's security interest in and to the Project, and
to consummate the transactions contemplated by or in the Loan Documents and this
Agreement.
ARTICLE 3
ADDITIONAL PROVISIONS
3.1 CONSENT OF LENDER. Subject to the terms of this Agreement, Lender
hereby consents to the Requested Actions. Borrower Parties agree that this
Agreement shall not be deemed an agreement by Lender to consent to any other
transfer or conveyance of the Project or assumption of the Loan, or a consent to
any secondary financing or secondary encumbrance on the Project or New Borrower
or any interests in New Borrower.
3.2 RELEASE OF ORIGINAL BORROWER AND ORIGINAL INDEMNITOR. By its execution
hereof, Lender hereby releases (i) ECM Indemnitor, LLC ("ORIGINAL INDEMNITOR")
from its obligations under the Guaranty and the Environmental Indemnity from and
after the Acquisition Date (hereinafter defined) in accordance with and subject
to the terms of the Joinder of Original Indemnitor attached hereto and
incorporated herein and (ii) Original Borrower for any acts or events occurring
or obligations arising under the Loan Documents after the completion of the
requested actions ("ACQUISITION DATE") with the exception of any liability of
Original Borrower based upon (a) any material misrepresentation of Original
Borrower in this Agreement or any
10
other document executed in connection herewith and/or (b) its obligations under
the Environmental Indemnity (as defined in EXHIBIT B attached hereto)
("ENVIRONMENTAL INDEMNITY OBLIGATIONS") that are caused by Original Borrower or
any of its agents or result from the existence of conditions existing prior to
the Acquisition Date or migrating to or from any portion of the Project prior to
the Acquisition Date, or result from a violation of Environmental Laws prior to
the Acquisition Date. Original Borrower shall bear the burden of proving when
Hazardous Substances first existed upon, about or beneath the Project or began
migrating to or from the Project and when a violation of Environmental Laws
first occurred; provided, however, the foregoing burden of proof is for the
benefit of the Lender, its successors and assigns, and is not for the benefit of
any other party.
3.3 NET WORTH OF NEW GUARANTOR. New Borrower acknowledges that it is a
condition of Lender's consent to the Requested Actions that Principal, as New
Guarantor under the New Guarantor Joinder set forth below, maintain the Net
Worth required by the terms of the New Guarantor Joinder. If at any time while
the Loan remains outstanding New Guarantor fails or is unable to maintain the
Net Worth required by the terms of the New Guarantor Joinder, then, upon demand
by Lender, New Borrower shall provide a replacement guarantor and environmental
indemnitor for New Guarantor which will be able to maintain the Net Worth
required by the terms of the New Guarantor Joinder. New Borrower's failure to
provide such replacement shall constitute a default under the Loan Documents.
3.4 UCC FILINGS. New Borrower hereby grants and confirms unto Lender a
first lien priority interest in all of New Borrower's personal property and all
of the fixtures located at the Project to the maximum extent permitted by the
Uniform Commercial Code ("UCC"). Borrower Parties hereby consents to the filing
of any financing statements or UCC forms required to be filed in the applicable
states or any other applicable filing office, including, but not necessarily
limited to, the state of organization of New Borrower and in the Records
(collectively "FILINGS") in order to perfect or continue the perfection of said
interest and, notwithstanding anything contained in any of the Loan Documents to
the contrary, in accordance with the UCC, as amended subsequent to the making of
the Loan, said Filings may be made by Lender without the consent or signature of
either of the Borrower Parties.
3.5 REFERENCES TO LOAN DOCUMENTS. All references to the term "LOAN
DOCUMENTS" in the Security Instrument and the other Loan Documents shall
hereinafter be modified to include this Agreement and all documents executed
and/or required in connection with the Requested Actions.
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ARTICLE 4
MISCELLANEOUS PROVISIONS
4.1 NO LIMITATION OF REMEDIES. No right, power or remedy conferred upon or
reserved to or by Lender in this Agreement is intended to be exclusive of any
other right, power or remedy conferred upon or reserved to or by Lender under
this Agreement, the Loan Documents or at law, but each and every remedy shall be
cumulative and concurrent, and shall be in addition to each and every other
right, power and remedy given under this Agreement, the Loan Documents or now or
subsequently existing at law.
4.2 NO WAIVERS. Except as otherwise expressly set forth in this Agreement,
nothing contained in this Agreement shall constitute a waiver of any rights or
remedies of Lender under the Loan Documents or at law. No delay or failure on
the part of any party hereto in the exercise of any right or remedy under this
Agreement shall operate as a waiver, and no single or partial exercise of any
right or remedy shall preclude other or further exercise thereof or the exercise
of any other right or remedy. No action or forbearance by any party hereto
contrary to the provisions of this Agreement shall be construed to constitute a
waiver of any of the express provisions. Any party hereto may in writing
expressly waive any of such party's rights under this Agreement without
invalidating this Agreement.
4.3 SUCCESSORS OR ASSIGNS. Whenever any party is named or referred to in
this Agreement, the heirs, executors, legal representatives, successors,
successors-in-title and assigns of such party shall be included. All covenants
and agreements in this Agreement shall bind and inure to the benefit of the
heirs, executors, legal representatives, successors, successors-in-title and
assigns of the parties, whether so expressed or not.
4.4 CONSTRUCTION OF AGREEMENT. Each party hereto acknowledges that it has
participated in the negotiation of this Agreement and no provision shall be
construed against or interpreted to the disadvantage of any party hereto by any
court or other governmental or judicial authority by reason of such party having
or being deemed to have structured, dictated or drafted such provision. Borrower
Parties at all times have had access to an attorney in the negotiation of the
terms of and in the preparation and execution of this Agreement and have had the
opportunity to review and analyze this Agreement for a sufficient period of time
prior to execution and delivery. No representations or warranties have been made
by or on behalf of Lender, or relied upon by Borrower Parties, pertaining to the
subject matter of this Agreement, other than those set forth in this Agreement.
All prior statements, representations and warranties, if any, are totally
superseded and merged into this Agreement, which represent the final and sole
agreement of the parties with respect to the subject matters. All of the terms
of this Agreement were negotiated at arm's length, and this Agreement was
prepared and executed without fraud, duress, undue influence or coercion of any
kind exerted by any of the parties upon the others. The execution and delivery
of this Agreement is the free and voluntary act of Borrower Parties.
4.5 INVALID PROVISION TO AFFECT NO OTHERS. If, from any circumstances
whatsoever, fulfillment of any provision of this Agreement or any related
transaction at the time performance of such provision shall be due, shall
involve transcending the limit of validity presently prescribed by any
applicable usury statute or any other applicable law, with regard to obligations
of like character and amount, then ipso facto, the obligation to be fulfilled
shall be reduced to the
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limit of such validity. If any clause or provision operates or would
prospectively operate to invalidate this Agreement, in whole or in part, then
such clause or provision only shall be deemed deleted, as though not contained
herein, and the remainder of this Agreement shall remain operative and in full
force and effect.
4.6 NOTICES. Except as otherwise specifically provided to the contrary,
any and all notices, elections, approvals, consents, demands, requests and
responses ("COMMUNICATIONS") permitted or required to be given under this
Agreement and the Loan Documents shall not be effective unless in writing,
signed by or on behalf of the party giving the same, and sent by certified or
registered mail, postage prepaid, return receipt requested, or by hand delivery
or overnight courier service (such as Federal Express), to the party to be
notified at the address of such party set forth below or at such other address
within the continental United States as such other party may designate by notice
specifically designated as a notice of change of address and given in accordance
with this Section. Any Communications shall be effective upon the earlier of
their receipt or three days after mailing in the manner indicated in this
Section. Receipt of Communications shall occur upon actual delivery but if
attempted delivery is refused or rejected, the date of refusal or rejection
shall be deemed the date of receipt. Any Communication, if given to Lender, must
be addressed as follows, subject to change as provided above:
Xxxxx Fargo Bank, N.A., as Trustee
c/o Wachovia Bank, N.A.
Real Estate & Financial Services
Investment Banking
8739 Research Drive, URP4
NC 1075
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: WBCMT 2003-C6; Loan No. 502762716
With a copy to:
LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Attn: Director of Servicing
Re: WBCMT 2003-C6; Loan No. 502762716
and, if given to Original Borrower, must be addressed as follows,
notwithstanding any other address set forth in the Loan Documents to the
contrary, subject to change as provided above:
ECM Broadway, LLC
c/o Equity Capital Management LLC
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. L Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
13
With a copy to:
DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP
000 Xxxxx Xx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxx, Esq.
Telephone: 000-000-0000
Facsimile: 312-630-5337
and, if given to New Borrower, must be addressed as follows, subject to change
as provided above:
Xxxx XX Columbia MO, LLC
c/o Cole Capital Partners
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Executive Vice President
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
Xxxx Capital Partners
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
4.7 GOVERNING LAW. This Agreement shall be interpreted, construed and
enforced in accordance with the laws of the State of Missouri.
4.8 HEADINGS; EXHIBITS. The headings of the articles, sections and
subsections of this Agreement are for the convenience of reference only, are not
to be considered a part of this Agreement and shall not be used to construe,
limit or otherwise affect this Agreement.
4.9 MODIFICATIONS. The terms of this Agreement may not be changed,
modified, waived, discharged or terminated orally, but only by an instrument or
instruments in writing, signed by the Party against whom the enforcement of the
change, modification, waiver, discharge or termination is asserted. Lender's
consent to the Requested Actions shall not be deemed to constitute Lender's
consent to any provisions of the organizational documents that would be in
violation of the terms and conditions of any of the Loan Documents.
4.10 TIME OF ESSENCE; CONSENTS. Time is of the essence of this Agreement
and the Loan Documents. Any provisions for consents or approvals in this
Agreement shall mean that such consents or approvals shall not be effective
unless in writing and executed by Lender.
4.11 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which will
constitute the same agreement. Any signature page of this Agreement may be
detached from any counterpart of this Agreement
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without impairing the legal effect of any signatures thereon and may be attached
to another counterpart of this Agreement identical in form hereto but having
attached to it one or more additional signature pages.
4.12 WAIVER OF TRIAL BY JURY.
(a) BORROWER PARTIES, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT
COUNSEL, (i) SUBMIT TO PERSONAL JURISDICTION IN THE STATE IN WHICH THE PROJECT
IS LOCATED OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR
RELATING TO THE NOTE, THE SECURITY INSTRUMENT, THIS AGREEMENT OR ANY OTHER OF
THE LOAN DOCUMENTS, (ii) AGREE THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE
BROUGHT IN ANY STATE OF FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN THE
COUNTY IN WHICH THE PROJECT IS LOCATED, (iii) SUBMIT TO THE JURISDICTION OF SUCH
COURTS, AND (iv) TO THE FULLEST EXTENT PERMITTED BY LAW, AGREE THAT THEY WILL
NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN
SHALL AFFECT THE RIGHT OF BORROWER PARTIES OR LENDER TO BRING ANY ACTION, SUIT
OR PROCEEDING IN AY OTHER FORUM).
(b) BORROWER PARTIES, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT
COUNSEL, WAIVE, RELINQUISH AND FOREVER FORGO THE RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THE
DEBT OR ANY CONDUCT, ACT OR OMISSION OF BORROWER PARTIES OR LENDER, OR ANY OF
THEIR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR
ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH BORROWER PARTIES OR LENDER, IN
EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
The parties have executed and delivered this Agreement as of the day and
year first above written.
[Signatures begin on the following page.]
15
LENDER:
XXXXX FARGO BANK, N.A., A NATIONAL
BANKING ASSOCIATION, SUCCESSOR BY
MERGER TO XXXXX FARGO BANK MINNESOTA,
N.A., AS TRUSTEE FOR THE REGISTERED
HOLDERS OF WACHOVIA BANK COMMERCIAL
MORTGAGE TRUST, COMMERCIAL MORTGAGE
PASS-THOUGH CERTIFICATES, SERIES
2003-C6
By: LNR Partners, Inc., a Florida
corporation, as attorney-in-fact
By: /S/ Xxxxxxxx X. Xxxxxxx [SEAL]
-----------------------
Xxxxxxxx X. Xxxxxxx, Vice President
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
This instrument was acknowledged before me, a notary public this 21 day of
November, 2005, by Xxxxxxxx X. Xxxxxxx, as Vice President of LNR Partners, Inc.,
a Florida corporation, on behalf of said corporation as attorney-in-fact for
XXXXX FARGO BANK, N.A., A NATIONAL BANKING ASSOCIATION, SUCCESSOR BY MERGER TO
XXXXX FARGO BANK MINNESOTA, N.A., AS TRUSTEE FOR THE REGISTERED HOLDERS OF
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST, COMMERCIAL MORTGAGE PASS-THOUGH
CERTIFICATES, SERIES 2003-C6, on behalf of the trust. He is X personally known
to me.
/S/ Xxxxx X. Xxxxx
--------------------------------------
Notary Public
My Commission Expires: March 15, 2009
16
ORIGINAL BORROWER:
ECM BROADWAY, LLC,
a Delaware limited liability company
By: ECM Mezzanine Holding, LLC,
a Delaware limited liability company,
its sole member
By: ECM Income & Growth Fund, LLC,
a Delaware limited liability company,
its sole member
By: ECM Equity Investments GP, L.L.C.,
a Delaware limited liability company,
its manager
By: /S/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Person
STATE OF ILLINOIS )
) SS.:
COUNTY OF XXXX )
On this 18th day of November, 2005, before me personally appeared Xxxxxx
Xxxxxx, to me known to be the person described in and who executed the foregoing
instrument, as an Authorized Person of ECM Equity Investments GP, L.L.C., the
manager of ECM Income & Growth Fund, LLC, the sole member of ECM Mezzanine
Holdings, LLC, the sole member of ECM BROADWAY, LLC, a Delaware limited
liability company, and acknowledged that he/she executed the same as the free
act and deed of said limited liability company and is acting for and on behalf
of the manager of the sole member of the sole member of the said limited
liability company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the County and State aforesaid, the day and year first above written.
/S/ Xxx X. Xxxxx
------------------------------------------
Notary Public, State of Illinois
My Commission Expires: September 26, 2007
17
EW BORROWER:
XXXX XX COLUMBIA MO, LLC,
a Delaware limited liability company
By: Xxxx REIT Advisors II, LLC, a Delaware
limited liability company, Manager
By: /S/ Xxxx X. Xxxx
-----------------------------------
Xxxx X. Xxxx, Senior Vice President
STATE OF ARIZONA )
) SS.:
COUNTY OF MARICOPA )
On this 21 day of November, 2005, before me personally appeared Xxxx
X. Xxxx to me known to be the person described in and who executed the foregoing
instrument, as the Senior Vice President of Xxxx REIT Advisors II, LLC, the
manager of XXXX XX COLUMBIA MO, LLC, a Delaware limited liability company, and
acknowledged that he executed the same as the free act and deed of said limited
liability company and is acting for and on behalf of and as an Authorized
Person, of the said limited liability company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the County and State aforesaid, the day and year first above written.
/S/ Xxxxx Xxxxxx
-----------------------------------------
Notary Public, State of Arizona
My Commission Expires: February 26, 2009
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EXHIBIT A
LEGAL DESCRIPTION
WALGREEN'S - COLUMBIA
A TRACT OF LAND LOCATED IN SECTION 12, TOWNSHIP 48 NORTH, RANGE 13 WEST,
COLUMBIA, XXXXX COUNTY, MISSOURI AND BEING LOTS 134, 185 AND PART OF LOTS 184
AND 135 OF THE ORIGINAL TOWN OF COLUMBIA AS SHOWN IN BOOK A, PAGE 335 AND THE
FIFTEEN (15) FOOT WIDE ALLEY VACATED BY CITY ORDINANCE NO. 2949, RECORDED IN
BOOK 354, PAGE 482, BEING PART OF TRACT DESCRIBED BY THE WARRANTY DEED RECORDED
IN BOOK 1058, PAGE 934 AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST XXXXXX XX XXX 000 XX XXXX XXXXXXXX XXXX XX XXXXXXXX;
THENCE WITH THE WEST LINE THEREOF, NORTH 0 DEGREES 00 MINUTES 00 SECONDS EAST
299.81 FEET TO THE NORTHWEST CORNER OF XXX 000 XXX XXX XXXXX XXXXX-XX-XXX XXXX
XX XXXX XXXXXXXX; THENCE WITH SAID RIGHT-OF-WAY LINE, NORTH 89 DEGREES 53
MINUTES 00 SECONDS EAST 87.87 FEET; THENCE 102.24 FEET ALONG A 65.00 FOOT-RADIUS
CURVE TO THE RIGHT, SAID CURVE HAS A CHORD SOUTH 45 DEGREES 03 MINUTES 30
SECONDS EAST, 92.02 FEET; THENCE LEAVING SAID SOUTH RIGHT-OF-WAY LINE AND WITH
THE WEST RIGHT-OF-WAY LINE OF PROVIDENCE ROAD SOUTH 0 DEGREES 00 MINUTES 00
SECONDS EAST 76.95 FEET; THENCE SOUTH 0 DEGREES 02 MINUTES 00 SECONDS EAST,
157.64 FEET TO THE SOUTHEAST CORNER OF XXX 000 XXX XXX XXXXX XXXXX-XX-XXX XXXX
XX XXXXXX XXXXXX; THENCE WITH SAID RIGHT-OF-WAY LINE, SOUTH 89 DEGREES 51
MINUTES 00 SECONDS WEST, 153.09 FEET TO THE POINT OF BEGINNING.
EXHIBIT B
LOAN DOCUMENTS
1. Promissory Note dated as of June 20, 2003, in the principal amount of
$4,645,369.00 (the "NOTE"), executed by Original Borrower in favor of Wachovia
Bank, National Association ("ORIGINAL LENDER"), and endorsed to the order of the
Lender.
2. Deed of Trust and Security Agreement dated as of June 20, 2003
("SECURITY INSTRUMENT"), executed by Original Borrower in favor of Original
Lender and recorded in Official Records Book 02254, at Page 0554 in the Public
Records of Xxxxx County, Missouri ("RECORDS"), and assigned to the Lender.
3. Assignment of Leases and Rents dated as of June 20, 2003 ("ASSIGNMENT
OF LEASES AND RENTS"), executed by Original Borrower in favor of Original Lender
and recorded in Official Records Book 02254, at Page 0625 of the Records, and
assigned to the Lender.
4. UCC Financing Statement reflecting Original Borrower, as debtor, and
Original Lender, as secured party, and recorded in Official Records Book 2262,
at Page 423 of the Records, and assigned to the Lender.
5. UCC Financing Statement reflecting Original Borrower, as debtor, and
Original Lender, as secured party and filed with the Secretary of State of
Delaware under File No. 31625626, and assigned to the Lender.
6. Indemnity and Guaranty Agreement dated as of June 20, 2003,
("GUARANTY"), executed by ECM Indemnitor, LLC, a Delaware limited liability
company ("ORIGINAL INDEMNITOR") in favor of Original Lender.
7. Environmental Indemnity Agreement ("ENVIRONMENTAL INDEMNITY") dated as
of June 20, 2003, executed by Original Borrower and Original Indemnitor in favor
of Original Lender.
2
JOINDER BY AND AGREEMENT OF ORIGINAL INDEMNITOR
The undersigned, being collectively and individually the "ORIGINAL
INDEMNITOR" under the Environmental Indemnity and the Guaranty executed in
connection with the Loan described in the Note and Deed of Trust Agreement to
which this Joinder is attached (the "ORIGINAL INDEMNITOR JOINDER") hereby
represents and warrants to, and acknowledges and agrees with, Lender the
following:
1. DEFINED TERMS. All capitalized terms used in this Original Indemnitor
Joinder, unless defined herein, shall have the meanings given such terms in the
Agreement.
2. REAFFIRMATION OF ENVIRONMENTAL INDEMNITY AND GUARANTY. The Guaranty and
Environmental Indemnity constitute the valid, legally binding joint and several
obligation of Original Indemnitor, enforceable against Original Indemnitor in
accordance with their respective terms. By Original Indemnitor's execution
hereof, Original Indemnitor waives and releases any and all defenses,
affirmative defenses, setoffs, claims, counterclaims and causes of action of any
kind or nature which Original Indemnitor has asserted, or might assert, against
any of Lender Parties which in any way relate to or arise out of the Guaranty,
the Environmental Indemnity or any of the other Loan Documents.
3. AGREEMENTS OF ORIGINAL INDEMNITOR. Original Indemnitor consents to the
execution and delivery of the Agreement by Original Borrower and New Borrower
and agrees and acknowledges that, except as set forth in paragraphs 5 and 6
below, the liability of Original Indemnitor under the Guaranty and the
Environmental Indemnity shall not be diminished in any way by the execution and
delivery of the Agreement or by the consummation of any of the transactions
contemplated therein, including but not limited to the Requested Actions.
4. AUTHORITY REPRESENTATIONS BY THE ORIGINAL INDEMNITOR. The execution and
delivery of, and performance under, this Joinder, the Guaranty and the
Environmental Indemnity by Original Indemnitor will not (a) violate any
provision of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to
Original Indemnitor or (b) result in a breach of or constitute or cause a
default under any indenture, agreement, lease or instrument to which Original
Indemnitor is a party or by which the Project may be bound or affected.
5. RELEASE OF ORIGINAL INDEMNITOR UNDER GUARANTY. Notwithstanding anything
to the contrary in this Original Indemnitor Joinder, the Security Instrument, or
the other Loan Documents, Original Indemnitor's obligations under the Guaranty
shall not apply with respect to, and by acceptance of this Joinder, Lender
agrees that Original Indemnitor is hereby released from any and all of Original
Indemnitor's obligations (the "GUARANTEED OBLIGATIONS") under the Guaranty for
acts or events occurring or obligations arising after the Acquisition Date,
unless such Guaranteed Obligations are caused by Original Borrower and/or
Original Indemnitor and/or any of their agents.
6. RELEASE OF ORIGINAL INDEMNITOR UNDER ENVIRONMENTAL INDEMNITY.
Notwithstanding anything to the contrary in this Original Indemnitor Joinder,
the Security Instrument or the Loan Documents, Original Indemnitor's obligations
hereunder and under the Environmental Indemnity shall not apply with respect to,
and by acceptance of this Joinder,
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Lender agrees that Original Indemnitor is hereby released for all acts or events
occurring or obligations arising under the Environmental Indemnity
("ENVIRONMENTAL INDEMNITY OBLIGATIONS") after the Acquisition Date unless such
Environmental Indemnity Obligations are: (i) caused by Original Borrower,
Original Indemnitor and/or any of their agents, or (ii) result from the
existence of conditions existing prior to the Acquisition Date or migrating to
or from any portion of the Project prior to the Acquisition Date, or result from
a violation of Environmental Laws prior to the Acquisition Date. For purposes of
this Joinder, Original Indemnitor shall bear the burden of proving when
Hazardous Substances first existed upon, about or beneath the Project or began
migrating to or from the Project and when a violation of Environmental Laws
first occurred; provided however, the foregoing burden of proof is for the
benefit of Lender, it's successors and assigns, and is not for the benefit of
any third party.
The undersigned Original Indemnitor has executed and delivered this
Joinder to be effective as of the date of the Agreement.
ORIGINAL INDEMNITOR:
ECM INDEMNITOR, LLC,
a Delaware limited liability company
By: /S/ Xxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxx, Authorized Person
STATE OF ILLINOIS )
) SS.:
COUNTY OF XXXX )
On this 18th day of November, 2005, before me, the undersigned Notary
Public, personally appeared, Xxxxxx Xxxxxx, personally known to me and
acknowledged himself to be an Authorized Person of ECM INDEMNITOR LLC, a
Delaware limited liability company, and that as such officer, being duly
authorized to do so pursuant to the organizational documents of the company,
executed and acknowledged the foregoing instrument for the purpose therein
contained on behalf of said company.
/S/ Xxx X. Xxxxx
-----------------------------------------
Notary Public, State of Illinois
My Commission Expires: September 26, 2007
4
JOINDER BY AND AGREEMENT OF NEW INDEMNITOR
The undersigned, XXXX CREDIT PROPERTY TRUST II, INC., a Maryland
corporation ("NEW INDEMNITOR"), being collectively and individually the
Principal referred to in the Agreement to which this Joinder (the "NEW
INDEMNITOR JOINDER") is attached, intending to be legally bound under the terms
and provisions of the Guaranty, the Environmental Indemnity and the Other
Indemnitor Documents (as defined below) pursuant to the provisions of this New
Indemnitor Joinder, hereby represents and warrants to and acknowledges and
agrees with Lender the following:
1. DEFINED TERMS. All capitalized terms used in this New Indemnitor
Joinder, unless defined herein, shall have the meanings given such terms in the
Agreement.
2. BENEFIT TO NEW INDEMNITOR. Each New Indemnitor, owning a direct
and/or indirect interest in New Borrower as a result of the Requested Actions,
shall receive a substantial benefit from Lender's consent to the Requested
Actions.
3. ASSUMPTION BY NEW INDEMNITOR OF GUARANTY. From and after the
Acquisition Date, New Indemnitor hereby, jointly and severally, assumes and
agrees to be liable and responsible for and bound by all of Original
Indemnitor's obligations, agreements and liabilities, including but not limited
to the jury waiver and other waivers set forth therein, under the Guaranty, as
fully and completely as if the New Indemnitor had originally executed and
delivered such Guaranty as the guarantor/indemnitor thereunder. New Indemnitor
further agrees to pay, perform and discharge each and every obligation of
payment and performance of any guarantor/indemnitor under, pursuant to and as
set forth in the Guaranty at the time, in the manner and otherwise in all
respects as therein provided. With respect to the environmental obligations of
New Indemnitor pursuant to section 1(h) of the Guaranty, the liability of New
Indemnitor shall be joint and several with that of New Borrower. From and after
the date hereof, all references to the term "BORROWER" used in the Guaranty
shall mean and refer to the New Borrower.
4. ASSUMPTION BY NEW INDEMNITOR OF ENVIRONMENTAL INDEMNITY AND OTHER
INDEMNITOR DOCUMENTS. New Indemnitor hereby, jointly and severally, assumes and
agrees to be liable and responsible for and bound by all of the Original
Indemnitor's obligations, agreements and liabilities, including but not limited
to the jury waiver and other waivers set forth therein, under the Environmental
Indemnity and any other Loan Documents to which any Original Indemnitor is a
party (collectively, the "OTHER INDEMNITOR DOCUMENTS") as fully and completely
as if New Indemnitor had signed such Environmental Indemnity and Other
Indemnitor Documents, if any, as the indemnitor/guarantor thereunder, including
without limitation, all of those obligations, agreements and liabilities which
would have been the obligations, agreements and liabilities of Original
Indemnitor, without regard to when such obligations, agreements and liabilities
arise, accrue or have arisen or accrued and without regard to the Original
Indemnitor's responsibility therefore, if any. New Indemnitor further agrees to
pay, perform, and discharge each and every obligation of payment and performance
of any guarantor/indemnitor under, pursuant to and as set forth in the
Environmental Indemnity and
5
Other Indemnitor Documents, if any, at the time, in the manner and otherwise in
all respects as therein provided. The liability of New Indemnitor under this
paragraph shall be joint and several with that of New Borrower.
5. CONFIRMATION OF REPRESENTATIONS. By its execution hereof, New
Indemnitor confirms the representations and warranties and agrees to the
covenants regarding New Indemnitor set forth in the Agreement.
6. AUTHORITY REPRESENTATIONS BY NEW INDEMNITOR. The execution and
delivery of this New Indemnitor Joinder, and performance by New Indemnitor under
the New Indemnitor Joinder, the Guaranty and Environmental Indemnity and the
Other Borrower Documents will not (a) violate any provision of any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to New Indemnitor or (b) result in a
breach of or constitute or cause a default under any indenture, agreement, lease
or instrument to which New Indemnitor is a party or by which the Project may be
bound or affected.
7. NOTICES TO NEW INDEMNITOR. From and after the Acquisition Date,
Lender shall deliver any notices to New Indemnitor which are required to be
delivered pursuant to the Guaranty, the Environmental Indemnity and the Other
Borrower Documents, or are otherwise delivered by the Lender thereunder at
Lender's sole discretion, to the New Indemnitor at the following address:
Xxxx Credit Property Trust II, Inc.
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxx, Esq.
All notices to be sent by New Indemnitor to Lender under the Guaranty, the
Environmental Indemnity and Loan Documents shall be sent to Lender in the manner
set forth in and at the address shown in Section 4.6 of the Agreement to which
this New Indemnitor Joinder is attached.
8. NET WORTH. New Guarantor represents and warrants to Lender, as an
inducement to Lender to consent to the Requested Actions, that New Guarantor has
a Net Worth of not less than $500,000. If, at any time while the Loan remains
outstanding, New Guarantor's Net Worth falls below the minimum amounts set forth
in the previous sentence, New Guarantor shall cause New Borrower to provide a
replacement guarantor and environmental indemnitor whose Net Worth does satisfy
the requirements of this Section. Such replacement guarantor shall execute a
joinder substantially in the form of this New Guarantor Joinder. New Guarantor
acknowledges that New Borrower's failure in such event to provide such a
replacement guarantor and environmental indemnitor shall constitute a default
under the Loan Documents. For purposes of this Section, "Net Worth" shall mean,
as of any date, the difference between (i) New Guarantor's total assets that
would appear on a balance sheet of New Guarantor prepared as of such date in
accordance with current market value basis of accounting, and (ii) New
Guarantor's total liabilities, including, without limitation, any obligations
under direct or indirect guarantees and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a creditor against loss,
in either instance in respect of obligations of others, that would appear on
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a balance sheet of New Guarantor prepared as of such date in accordance with
current market value basis of accounting. For purposes of this Section, New
Guarantor's "liabilities" shall expressly exclude the obligations under this
Guaranty.
8. JOINT AND SEVERAL LIABILITY. If New Indemnitor consists of more than
one person or party, the obligations and liabilities of each such person or
party shall be joint and several.
The undersigned New Indemnitor has executed and delivered this New
Indemnitor Joinder to be effective as of the date of the Agreement.
XXXX CREDIT PROPERTY TRUST II, INC.
a Maryland corporation
By: /S/ Xxxx X. Xxxx
----------------------------------
Print name: Xxxx X. Xxxx
Title: Secretary
STATE OF ARIZONA )
) SS.:
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this 21 day of
November, 2005, by Xxxx X. Xxxx, as Secretary of XXXX CEDIT PROPERTY TRUST II,
INC., a Maryland corporation. He/she is X personally known to me or ____
produced ________________________ as identification and did not take an oath.
/S/ Xxxxx Xxxxxx
--------------------------------------
Notary Public
Print Name: Xxxxx Xxxxxx
My Commission Expires: February 26, 2009
[Notarial Seal]
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