EXHIBIT 99.10
ASSIGNMENT AND ASSUMPTION
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ASSIGNMENT AND ASSUMPTION, dated as of September 26, 1996 between STARWOOD
MEZZANINE INVESTORS, L.P., a Delaware limited partnership ("Assignor") and APMT
Limited Partnership, a Delaware limited partnership ("Assignee"):
For good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, and of the mutual covenants herein contained, the
parties hereto hereby agree as follows:
1. Assignor hereby grants, transfers and assigns to Assignee all of the
right, title and interest of Assignor, as Certificateholder, in, to and under
that certain Participation and Servicing Agreement for Commercial Mortgage
Loans, Series 1988-10 through 14, dated as of March 1, 1988, by and between
Shearson Xxxxxx Commercial Paper Incorporated and Empire of America Federal
Savings Bank, as subsequently assigned to Key Bank of New York (the "Company")
as of January 8, 1992 and as amended as of February 15, 1995 (as so assigned and
amended, the "Participation Agreement"), and that certain 100% "Pass-Through"
Ownership Certificate No. 5, Series 1988-10 (the "Certificate") issued
thereunder.
2. Assignor warrants and represents to, and covenants with, the Assignee
that:
a. Assignor is the lawful owner of the Certificate with the full
right to transfer the Certificate free from any and all claims and encumbrances
whatsoever;
b. Assignor has not received notice of, and has no knowledge of, any
offsets, counterclaims or other defenses available to the Company with respect
to the Participation Agreement or the Certificate;
c. Assignor has not waived or agreed to any waiver under, or agreed
to any amendment or other modification of, the Participation Agreement or the
Certificate, including without limitation the transfer of the servicing
obligations under the Participation Agreement. Assignor has no knowledge of, and
has not received notice of, any waiver under or amendment or other modification
of, or assignment of rights or obligations under, the Participation Agreement or
the Certificate; and
d. Neither Assignor nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Certificate, any
interest in the Certificate or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the
Certificate, any interest in the Certificate or any other similar security from,
or otherwise approached or negotiated with respect to the Certificate, any
interest in the Certificate or any other similar security with, any Person (as
defined in the Participation Agreement) in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action which would constitute a distribution of the Certificate under
the Securities Act of 1933 (the "1933 Act") or which would render the
disposition of the Certificate a violation of Section 5 of the 1933 Act or
require registration pursuant thereto.
3. Assignee warrants and represents to, and covenants with, the Assignor
and the Company pursuant to Section 4.02 of the Participation Agreement that:
a. Assignee agrees to be bound, as Certificateholder, by all of the
terms, covenants and conditions of the Participation Agreement and the
Certificate, and from and after the date hereof, Assignee assumes for the
benefit of each of the Company and Assignor all of Assignor's obligations as a
Certificateholder thereunder;
b. Assignee understands that the Certificate has not been registered
under the 1933 Act or the securities laws of any state;
c. In exchange for the Certificate being contributed by Assignor to
Assignee, Assignee will issue to Assignor, as of September 26, 1996,
approximately a 91.95% limited partnership interest in Assignee;
d. Assignee is acquiring the Certificate for investment for its own
account only and not for any other Person;
e. Assignee has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
investment in the Certificate;
f. Assignee has been furnished with all information regarding the
Certificate that it has requested from Assignor or the Company; and
g. Neither Assignee nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Certificate, any
interest in the Certificate or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the
Certificate, any interest in the Certificate or any other similar security from,
or otherwise approached or negotiated with respect to the Certificate, any
interest in the Certificate or any other similar security with, any Person in
any manner which would constitute a distribution of the Certificate under the
1933 Act or which would render the disposition of the Certificate a violation of
Section 5 of the 1933 Act or require registration pursuant thereto, nor will it
act, nor has it authorized or will it authorize any Person to act, in such
manner with respect to the Certificate.
4. This Assignment and Assumption shall be governed by the laws of the
State of Connecticut, without giving regard to conflict of laws principles
thereof.
IN WITNESS WHEREOF, the parties have caused this Assignment and Assumption
to be executed by their duly authorize officers as of the date first above
written.
ASSIGNOR: ASSIGNEE:
STARWOOD MEZZANINE INVESTORS APMT Limited Partnership,
L.P., a Delaware limited partnership a Delaware Limited Partnership
By: Starwood Capital Group, L.P., By: Angeles Participating Mortgage
a Delaware limited partnership Trust its general partner
By: BSS Capital Partners, L.P.,
Delaware limited partnership, By:
its general partner --------------------------------
Xxxxxx Xxxxxxxxx, Chairman
By: Sternlicht Holdings II, Inc.,
a Delaware corporation, its
general partner
By:
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Name: Madison X. Xxxxx
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Title: Executive Vice President
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