Assumption and Amendment of Note, Mortgage and Other Loan Documents
Exhibit
10.6
Prepared by,
and
after recording return /0:
Xxxxxxx G,
Xxxxx, Esquire Trenam, Kemker, Scharf, Barkin, Frye,
X'Xxxxx
&
Xxxxxx, P.A.
Xxxxxxx
Xxxxxxxxx, Xxxxx0000 Xxxxx, Xxxxxxx 00000
Assumption and Amendment of
Note, Mortgage and Other
Loan Documents
THIS
ASSUMPTION AND AMENDMENT OF NOTE, MORTGAGE AND OTHER LOAN DOCUMENTS (the
"Agreement"), made and entered into effective as of the__ day of April, 2008
(the "Effective Date"), by and between COP-MONROE NORTH, LLC, a Florida limited
liability company (the Purchaser"), whose mailing address is c/o Cornerstone
Real Estate Funds, 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000, and
TRANSAMERICA LIFE INSURANCE COMPANY, an Iowa corporation (the "Mortgagee"),
whose mailing address is c/o AEGON USA Realty Advisors, Inc" 0000 Xxxxxxxx Xxxx,
X,X" CedarRapids,Iowa52499,andisjoinedinby REALVEST-MONROECOMMERCENTER,L.L.C., a
Florida limited liability company, whose mailing address is 0000 Xxxxxx Xxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000-0000 (the "Seller"), XXXXXX X. XXXXXXXXXX, a
natural person and Florida resident whose mailing address is 000 Xxxxxx Xxxxxx,
Xxxxxx Xxxx, Xxxxxxx 00000 (the "Original Carveout Obligor"), and CORNERSTONE
OPERATING PARTNERSHIP, L.P., a Delaware limited partnership, and
CORNERSTONECOREPROPERTIESREIT,INC., a Maryland corporation(collectively and
jointly and severally, the Supplemental Carveout Obligors"), each of whose
mailing address is Cornerstone Real Estate Funds, 0000 Xxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxxxx 00000.
THIS AGREEMENT IS EXECUTED FOR
THE PURPOSE OF EVIDENCING THE ASSUMPTION BY COPMONROE NORTH, LLC, A FLORIDA
LIMITED LIABILITY COMPANY, OF THE OBLIGATIONS OF REALVEST-MONROE COMMERCENTER,
L.L.C., A FLORIDA LIMITED LIABILITY COMPANY ("SELLER"), UNDER THE NOTE (AS
DESCRIBED HEREIN) HAVING AN OUTSTANDING PRINCIPAL BALANCE AS OF THE EFFECTIVE
DATE OF $7,374,856.12 AND THE MODIFICATION OF THE MORTGAGE
AND CERTAIN OTHER LOAN DOCUMENTS SECURING THE PAYMENT OF THE NOTE. ALL FLORIDA
INTANGIBLE TAXES DUE ON THE INDEBTEDNESS SECURED BY THE MORTGAGE MODIFIED AND
ASSUMED HEREBY HAVE BEEN PAID AND EVIDENCE THEREOF IS SHOWN ON (A) THAT CERTAIN
"MORTGAGE AND SECURITY AGREEMENT" MADE BY SELLER IN FAVOR OF AMSOUTH BANK,
RECORDED IN OFFICIAL RECORDS BOOK 04433, PAGE 0002, OF THE PUBLIC RECORDS OF
SEMINOLE COUNTY, FLORIDA (THE "RECORDS"), AND (B) THAT CERTAIN "MODIFICATION AND
CONSOLIDATION OF MORTGAGE AND OTHER LOAN DOCUMENTS AND NOTICE OF FUTURE ADVANCE"
RECORDED IN OFFICIAL RECORDS BOOK 05476, PAGE 0444, OF THE RECORDS. ACCORDINGLY,
THIS AGREEMENT AND THE TRANSACTIONS EVIDENCED HEREBY ARE EXEMPT FROM FLORIDA
INTANGIBLE TAX PURSUANT TO SECTION 199.145, FLORIDA STATUTES. FLORIDA
DOCUMENTARY STAMPS ARE BEING PAID ON THIS AGREEMENT BASED UPON THE FULL
$7,374,856.12 UNPAID PRINCIPAL BALANCE OF THE NOTE ASSUMED HEREBY.
WHEREAS,
effective as of October 6, 2004 (the "Original Loan Date"), the Mortgagee made
and/or acquired a certain first mortgage loan (the "Loan") to the Seller in the
original principal amount of $7,900,000.00; and,
WHEREAS,
the Loan is evidenced by that certain "Amended and Restated Renewal Secured
Promissory Note" in the original principal amount of $7,900,000.00 made and
delivered by the Seller to the order of the Mortgagee dated effective as of the
Original Loan Date (the "Note") and having an outstanding principal balance as
of the Effective Date of$7,374,856.12; and,
WHEREAS,
the Note is secured, inter
alia, by (a) that certain "Amended and Restated Mortgage, Security
Agreement and Fixture Filing" recorded as Attachment "A" to that certain
"Modification and Consolidation of Mortgage and Other Loan Documents and Notice
of Future Advance" (the "Modification") dated as of Original Loan Date and
recorded in Official Records Book 05476, Page 0444, of the Public Records of
Seminole County, Florida (the "Mortgage") and (b) that certain "Absolute
Assignment of Leases and Rents" dated as of the Original Loan Date and recorded
in Official Records Book 05476, Page 0506, of the Public Records of Seminole
County, Florida (the "Lease Assignment"), both made by the Seller in favor of
the Mortgagee and encumbering and relating to certain real property situated in
Seminole County, Florida (the "Real Property") and personal property comprising
the commercial property known as "Monroe CommerCenter North," in Sanford,
Florida (collectively, the "Property"); and,
WHEREAS,
the Mortgage and the Lease Assignment hereinafter are sometimes collectively
referred to as the "Original Security Instruments"; and,
WHEREAS,
effective as of the Original Loan Date the Seller and Original Carveout Obligor
executed and delivered to the Mortgagee in connection with the Loan that certain
"Environmental Indemnity Agreement" dated as of the Original Loan Date (the
"Original Environmental Indemnity Agreement"); and,
WHEREAS,
the Original Carveout Obligor also executed and delivered to the Mortgagee in
connection with the Loan that certain "Carveout Guarantee and Indemnity
Agreement" dated effective as of the Original Loan Date (the "Original Carveout
Guarantee"); and,
WHEREAS,
the Note, the Modification, the Mortgage, the Lease Assignment, the Original
Environmental Indemnity Agreement, the Original Carveout Guarantee, and all
other instruments or documents executed in connection with the Loan (expressly,
excluding, however, (i) that certain "Agreement Regarding Letter of Credit"
dated as of the Original Loan Date between the Seller and the Mortgagee, (ii)
that certain "Leasing Escrow Agreement" dated as of the Original Loan Date
between, the Seller, the Mortgagee, and AEGON USA Realty Advisors, Inc., and
(iii) that certain "Limited Payment Guarantee" dated as of the Original Loan
Date made by the Original Carveout Obligor in favor the Mortgagee, all of which
previously have been released by the Mortgagee and are herein collectively
called the "Previously Released Documents''), hereinafter are sometimes
collectively referred to in this Agreement as the "Original Loan Documents";
and,
WHEREAS,
by that certain Special
Warranty Deed dated as of the Effective Date recorded or to be recorded
in the Records immediately prior to the recordation of this Agreement, and other
instruments of transfer or conveyance of even Effective Date therewith, the
Seller has transferred and conveyed all of the Property to the Purchaser and
transferred all oft he membership interests in the Purchaser to COP-ORLTWO, LLC,
a Florida limited liability company; and,
WHEREAS,
the Seller, the Original Carveout Obligor, the Purchaser, and the Supplemental
Carveout Obligors have requested that the Mortgagee consent to the
above-described transfer and conveyance of the Property by the Seller to the
Purchaser and the above-described transfer of all of the membership interests in
the Purchaser, and the Mortgagee has agreed to grant such consent provided that
(i) the Purchaser assumes and agrees to
pay and perform all of the obligations of the Seller under the Original Loan
Documents, (ii) the Purchaser and the Supplemental Carveout Obligors execute and
deliver to the Mortgagee that certain "Supplemental Environmental Indemnity
Agreement" of even Effective Date herewith (the "Supplemental Environmental
Indemnity"), (iii) the Supplemental Carveout Obligors execute and deliver to the
Mortgagee that certain "Supplemental Carveout Guarantee and Indemnity Agreement"
of even Effective Date herewith (the "Supplemental Carveout Guarantee"), and
(iv) the Purchaser, the Supplemental Carveout Obligors, the Seller, and the
Original Carveout Obligor enter into this Agreement with the Mortgagee;
and,
WHEREAS,
the Purchaser, the Supplemental Carveout Obligors, and the Mortgagee desire to
modify certain of the Original Loan Documents in the manner more particularly
hereinafter set forth; and,
WHEREAS,
the Original Loan Documents (as amended by this Agreement), this Agreement, the
Supplemental Environmental Indemnity, the Supplemental Carveout Guarantee, and
all other instruments or documents evidencing, securing, guaranteeing, or
relating to the Loan and/or the assumption thereof by the Purchaser executed and
delivered by anyone or more of the Seller, the Original Carveout Obligor, the
Supplemental Carveout Obligors, and/or the Purchaser (other than the Previously
Released Documents) hereinafter are sometimes collectively referred to as the
"Loan Documents";
NOW,
THEREFORE, for and in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Purchaser, the Supplemental Carveout Obligors, the Seller, the Original Carveout
Obligor, and the Mortgagee hereby covenant and agree as follows:
1. Recitals. The
above recitals are true and correct and are incorporated herein by reference.
This Agreement is for the benefit of, and the recitals, covenants,
representations, and warranties in this Agreement may be relied upon by, each of
the parties hereto and their respective heirs, personal representatives,
successors, and assigns.
2. Assumption of Original
Loan Documents. Subject to the limitations on the personal liability of
the "Borrower" and the "Mortgagor," respectively, under the exculpation
provisions set forth in Sections13 and 14 of the Note (as herein amended) and
Section 21 of the Mortgage (as herein amended), the Purchaser hereby expressly
assumes and agrees to promptly and faithfully pay and perform all of the terms,
covenants, agreements, representations, warranties, provisions, indemnities,
liabilities, and obligations on the part ofthe "Borrower" or the "Mortgagor"
required to be paid or performed under the Note, the Mortgage, the Lease
Assignment, or anyone or more of the other Original Loan Documents, whether to
be paid or performed in the past, currently, or in the future, as though the
Purchaser had at all times been the "Borrower" or the "Mortgagor" there under,
all in accordance with the express terms and conditions thereof, including,
without limitation of the generality of the foregoing, all of the Carveout
Obligations (as defined in the Mortgage) that are exceptions to the nonrecourse
feature of the Loan and that are more particularly described in Section 14 of
the Note and in Section 21 of the Mortgage (the "Carveout Obligations"). The
parties acknowledge and agree that as of the Effective Date the unpaid principal
balance of the Note is$7,374,856.12 and that interest due on the Note has been
paid through March 31, 2008. The May 1, 2008 monthly installment of principal
and interest that will be due under the Note from the Purchaser is in the amount
of $50,369.93. The parties further acknowledge and agree that all letters of
credit and escrowed funds under the Previously Released Documents were returned
to the Seller and as of the Effective Date no sums are held in escrow or as
reserves by the Mortgagee or any of its affiliates.
3. Consent to Purchase.
The Mortgagee hereby consents to (a) the transfer and conveyance of the Property
by Seller to the Purchaser, (b) the transfer and assignment by the Seller of all
of the membership interests in the Purchaser to COP-ORL TWO, LLC, a Florida
limited liability company, and (c) the assumption by the
Purchaser ofthe Original Loan Documents. Nothing contained herein, however,
shall in any manner be interpreted or construed as a consent by the Mortgagee to
any further sale, transfer, or conveyance of all or any portion of any interest
in the Property or any further transfer or assignment of the membership
interests in the Purchaser.
4. Amendments to Original
Loan Documents. The Mortgage, the Lease Assignment, and the Note are
hereby respectively amended from and after the Effective Date hereof as
follows:
(a) All
references in the Mortgage, the Lease Assignment, or the Note to the "Mortgagor"
or the "Borrower" hereafter shall be deemed to refer to the
Purchaser.
(b) All
references in the Mortgage, the Lease Assignment, or the Note to "the Carveout
Obligor," "any Carveout Obligor," or "a Carveout Obligor" hereafter shall be
deemed to refer collectively to the Supplemental Carveout Obligors or to either
of them, as the context shall require.
(c) All
references in the Mortgage, the Lease Assignment, or the Note to the
"Environmental Indemnity Agreement" hereafter shall be deemed to refer to the
Supplemental Environmental Indemnity, as the same may be amended or replaced
from time to time.
(d) All
references in the Mortgage, the Lease Assignment, or the Note to the "Carveout
Guarantee and Indemnity" hereafter shall be deemed to refer to the Supplemental
Carveout lndemnity, as the same may be amended or replaced from time to
time.
5. Amendment of
Note. The note is hereby further amended from and after the
Effective Date as follows:
(a) All
references in the Note to the “Note,” the “Mortgage” and “Absolute Assignment of
Leases and Rents" or the "Lease Assignment" hereafter shall mean the Note, the
Mortgage, or the Lease Assignment, as the case may be, as amended by this
Agreement and as the same may be amended from time to time.
(b) Item
(ii) of Section 14 of the Note is amended to delete the word "Borrower" in the
third (3,d) line and substitute the words "owner thereof' therefor.
6. Amendment of
Mortgage. The Mortgage is hereby further amended from and after the
Effective Date hereof as follows:
(a) All
references in the Mortgage to the "Note," the "Mortgage," the "Absolute
Assignment ofLeases and Rents," or the other "Loan Documents" hereafter shall
mean and refer to the Note, the Mortgage, the Lease Assignment, or the other
Loan Documents, as the case may be, as amended by this Agreement and as the same
may be amended from time to time.
(b) The
definition of "Carveout Guarantee and Indemnity" in Section 3 of the Mortgage is
amended to read as follows:
'''Carveout
Guarantee and Indemnity" means that certain "Supplemental Carveout Guarantee and
Indemnity" dated as of April _, 2008, entered into by Cornerstone Operating
Partnership, L.P., a Delaware limited partnership, and Cornerstone Core
Properties REIT, Inc., a Maryland corporation, in favor of the Mortgagee with
respect to the Carveout Obligations, together with all substitutions and
amendments thereof."
(c) The
definition of "Carveout Obligor" in Section 3 of the Mortgage is deleted in its
entirety and the following definition is substituted therefore:
"'Carveout
Obligors" means Cornerstone Operating Partnership, L.P., a Delaware limited
partnership, and Cornerstone Core Properties REIT, Inc., a Maryland corporation,
jointly and severally, and "Carveout Obligor" means anyone of them. Any other
person or entity that expressly assumes liability for the Carveout Obligations
during the term of the Loan shall become a "Carveout Obligor" for purposes of
this Mortgage."
(d) The
definition of "Environmental Indemnity Agreement" in Section 3 of the Mortgage
is amended to read as follows:
"'Environmental
Indemnity Agreement" means that certain "Supplemental Environmental Indemnity
Agreement" dated as of April _, 2008, made by COPMonroe North, LLC, a
Florida limited liability company, and Cornerstone Operating Partnership, L.P.,
a Delaware limited partnership, and Cornerstone Core Properties REIT, Inc., a
Maryland corporation, jointly and severally, in favor of the Mortgagee, together
with all substitutions and amendments thereof."
(e) The
definition of"LoanDocuments"inSection3oftheMortgageisamendedtoread as
follows:
"'Loan
Documents" means all documents evidencing the Loan or delivered in connection
with the Loan that either were (i) assumed by COP-Monroe North, LLC, a Florida
limited liability company, or (ii) entered into in connection with such
assumption of the Loan or in the future, including, without limitation, the
Note, this Mortgage, the Absolute Assignment of Leases and Rents, the Carveout
Guarantee and Indemnity, and the Environmental Indemnity
Agreement."
(f) The
definition of "Net Worth Requirement" in Section 3 is amended to read as
follows:
"'Net
Worth Requirement" means the lesser of (a) the aggregate net worth of the
Supplemental Carveout Obligors (not including the value of any direct or
indirect equity or interest in the Real Property) most recently represented to
the Mortgagee at the time of the approval by AEGON's Investments Committee of
the assumption of the Loan by COP-Monroe North, LLC, and (b) the principal
balance of the Loan at the time of determination."
(g) The
definitions of "Guarantee," "Guarantor," "Future Development Site," "Leasing
Escrow Agreement," "Letter of Credit Agreement," and "Subsidiary" in Section 3
of the Mortgage are deleted in their entirety.
(h) The
following definition is added in Section 3 of the Mortgage:
"Legal
Control" means the power, either directly or indirectly, to exercise the
authority of the owner of the Real Property, either as the majority shareholder
of the common stock of a corporation, as the sole general partner of a limited
partnership, as the managing general partner of a general partnership, or as the
sole manager ors ole managing member of a limited liability company, provided
the person or entity exercising such authority cannot be divested of such
authority without its consent, either directly or indirectly, except for
cause."
(i)
Section 5.1 of the Mortgage is amended to read as follows:
"5.1
FORMATION, EXISTENCE, GOOD STANDING
The
Mortgagor is a limited liability company duly organized, validly existing, and
in good standing under the laws of the State of Florida with its only place of
business in Florida and has obtained all licenses and permits and filed all
statements of fictitious name and registrations necessary for the lawful
operation of its business in Florida. The sole managing member of the Mortgagor
is COP-ORL TWO, LLC, a Florida limited liability company. The Mortgagor is now
under the Legal Control of Cornerstone Operating Partnership, L.P., a Delaware
limited partnership, and Cornerstone Core Properties REIT, Inc., a Maryland
corporation."
(j) The
last paragraph of Section 6.4 (beginning with the word "Notwithstanding" on Page
15 and including Subparagraphs (a) through (m) thereof) is deleted.
(k)
Section 14.1 of the Mortgage is deleted in its entirety.
(I) All
of that portion of Section 6.11beginning with the third (3) sentence there of
and continuing to the end of Section 6.11 is deleted.
(m)
Section 14.2 of the Mortgage is amended to read as follows:
"
14.2
PERMITTED MEMBERSHIP TRANSFERS
The
Mortgagee agrees that any direct or indirect transfers of membership
interests
in COP-Monroe North, LLC ("COP-Monroe North") shall be permitted
so long as COP-Monroe North remains under the Legal Control of the
Supplemental Carveout Obligors. At the time that the Mortgagor is required
to provide the Mortgagee with financial reports and operating statements
pursuant to Section 6.19 of this Mortgage the Mortgagor also shall
provide the Mortgagee with sufficient information to enable it to confirm
that any such transfer qualifies as a Permitted Transfer under this Section
14.2."
(n)
Section 21 is amended to delete the word "Mortgagor" in the third (3"') line of
Item
(ii) and
substitute therefor the words "owner thereof."
(0)
Section 22.7 of the Mortgage is amended to read as follows:
"22.7
FIXTURE FILING
This
Mortgage constitutes a financing statement filed as a fixture filing in the
Public Records of Seminole County, Florida with respect to any and all fixtures
comprising Property. The "debtor" is COP-Monroe North, LLC, a Florida limited
liability company, the "secured party" is Transamerica Life Insurance Company,
an Iowa corporation, the collateral is as described in Subsection 22.2 above,
and the addresses of the debtor and secured party are the addresses stated in
Section 25.13 of this Mortgage for Notices to such parties. The organizational
number of the debtor is L08000027580 and its federal taxpayer employer
identification number is 06838495. The owner of record of the Real Property
is COP-Monroe North, LLC, a Florida
limited liability company. All Documentary Stamp Taxes due and payable or
to become
due and payable pursuant to Section 201.22, Florida Statutes, have been
paid."
(p)
Section 25.13 of the Mortgage is amended to provide that (i) the Notice address
of the Mortgagor is COP-Monroe North, LLC, c/o Cornerstone Real Estate Funds,
0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000, and its facsimile number
is (000) 000-0000, and (ii) the facsimile number in the Notice address of the
Mortgagee is changed to (000) 000-0000.
7. Amendment of Lease
Assignment. The Lease Assignment is hereby further amended from and after
the Effective Date hereof as follows:
(a) All references in the Lease
Assignment to the "Note," the "Mortgage," or the "Assignment" hereafter shall
mean and refer to the Note, the Mortgage, or the Lease Assignment, as the case
may be, as amended by this Agreement and as the same may be amended from time to
time.
(b) Section 20 of the Lease Assignment
is amended to provide that (i) the notice address of the Borrower is COP-Monroe
North, LLC, c/o Cornerstone Real Estate Funds, 0000 Xxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxxxx 00000, and its facsimile number is (000) 000-0000, and (ii)
the facsimile number in the Notice address of the Lender is changed to (000)
000-0000.
8. Waiver and
Release.
(a) The Seller and the Original
Carveout Obligor, for themselves and their respective trustees, beneficiaries,
members, managers, partners, officers, directors, and shareholders, and the
respective heirs, personal representatives, successors and assigns ofeach
ofthem, acknowledge and agree that none of them has any right of setoff or
defense or any counter claim with respect to any of the indebtedness or other
obligations evidenced or secured by any of the Loan Documents (or any other
document or instrument executed in connection therewith), and hereby release and
discharge any and all claims, demands, counterclaims, actions, or causes of
action that the Seller or the Original Carveout Obligor, or any of their
respective trustees, beneficiaries, members, managers, partners, officers,
directors, or shareholders, or the respective heirs, personal representatives,
successors or assigns of any of them, may have had, may now have, or may
hereafter have against the Mortgagee, its affiliates, successors, and/or
assigns, or any of their officers, directors, or employees, arising out of or in
connection with the Loan, any of the Loan Documents, or the Property or from any
other cause or matter whatsoever.
(b) The Purchaser and the
Supplemental Carveout Obligors, for themselves and their respective trustees,
beneficiaries, members, managers, partners, officers, directors, and
shareholders, and the respective heirs, personal representatives, successors and
assigns of each of them, acknowledge and agree that none of them has any right
of setoff or defense or any counterclaim with respect to any of the indebtedness
evidenced or secured by any of the Loan Documents (or any other document or
instrument executed in connection there with), and hereby release and discharge
any counter claim or right of action that the Purchaser or any of the
Supplemental Carveout Obligors, or any of their respective trustees,
beneficiaries, members, managers, officers, directors, or shareholders, or the
respective heirs, personal representatives, successors, or assigns of any of
them, may have had, may now have, or may hereafter have against the Mortgagee,
its affiliates, successors, and/or assigns, or any of their officers, directors,
or employees, arising from any cause or matter whatsoever occurring or existing
prior to and through the execution and delivery of this Agreement.
9. Lien. The Seller,
the Original Carveout Obligor, the Purchaser, and the Supplemental Carveout
Obligors, jointly and severally, warrant and represent to, and agree with, the
Mortgagee that the Original Security Instruments, as amended by this Agreement,
collectively constitute a valid first priority lien and security interest on the
Property, enforceable in accordance with their respective terms, except to the
extent
that the
enforceability or any of such instruments may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
affecting the enforceability of creditor's rights generally, or by equitable
principles of general application (whether considered in an action at law or in
equity).
10. Representations and
Warranties of the Purchaser and the Supplemental Carveout Obligors. The
Purchaser and the Supplemental Carveout Obligors, jointly and severally, hereby
represent and warrant to the Mortgagee that:
(a) To the best of the Purchaser's and
the Supplemental Carveout Obligors' knowledge, no "Default" under (and as
defined in) any of the Loan Documents has occurred or is in existence as of the
Effective Date hereof, nor, to the best of its knowledge, has any event occurred
that, with notice and/or the passage of time, would become a "Default" under any
of the Loan Documents.
(b) To the best of the Purchaser's and
the Supplemental Carveout Obligors' knowledge, none of the representations and
warranties made in anyone or more of the Loan Documents, or any other agreement,
document, or instrument executed in connection therewith, is untrue or incorrect
as of the time of delivery of this Agreement.
(c) As of the Effective Date neither
the Purchaser nor either of the Supplemental Carveout Obligors has any knowledge
of any present, pending or threatened condemnation proceeding or award affecting
the Real Property.
(d) As of the Effective Date, to the
best of the Purchaser's and the Supplemental Carveout Obligors' knowledge, no
damage to the Real Property by any fire or other casualty has occurred, other
than damage that has been completely repaired in accordance with good commercial
practice and in compliance with applicable law.
(e) The Note and the Original Security
Instruments, as herein amended, are in full force and effect and are enforceable
in accordance with their respective terms.
(f) Neither the Purchaser nor either of
the Supplemental Carveout Obligors has any defense, counterclaim, or right of
offset with respect to any indebtedness to the Mortgagee.
(g) The Purchaser is a limited
liability company duly organized, validly existing, and in good standing under
the laws of the State of Florida and authorized to transact business in the
State of Florida, and it has full power and authority to enter into this
Agreement and the other Loan Documents to which it is a party or which it has
assumed and to pay and perform its obligations thereunder. The sole managing
member of the Purchaser is COP-ORL TWO, LLC, a Florida limited liability
company. The sole managing member of COP-ORL TWO, LLC is Cornerstone Operating
Partnership, L.P., a Delaware limited partnership. The execution and delivery of
this Agreement and all instruments and documents executed by the Purchaser have
been duly authorized and approved by all required actions.
(h)
Cornerstone Operating Partnership, L.P. is a limited partnership duly organized,
validly existing, and in good standing under the laws of the State of Delaware
and it has full power and authority to enter into this Agreement and the other
Loan Documents to which it is a party and to pay and perform its obligations
thereunder. The sole general partner of Cornerstone Operating Partnership, L.P.
is Cornerstone Core Properties REIT, loc., a Maryland corporation. The execution
and delivery of this Agreement and all instruments and documents executed by
Cornerstone Operating Partnership, L.P. have been duly authorized and approved
by all required actions.
(i) Cornerstone Core Properties REIT,
Inc. is a corporation duly organized, validly existing, and in good standing
under the laws of the State or Maryland and it has full power and authority to
enter into this Agreement and the other Loan Documents to which it is a party
and to pay and perform its obligations thereunder. The execution and delivery of
this Agreement and all instruments and documents executed by Cornerstone Core
Properties REIT, Inc. have been duly authorized and approved by all required
actions.
(j) The Purchaser owns good and
marketable fee simple title to the Real Property, free and clear of all liens
and encumbrances whatsoever other than real estate taxes for the year 2008 and
subsequent years (which are not yet due and payable) and the other Permitted
Encumbrances (as defined in the Mortgage).
(k) Either (a) the Purchaser is not an
"employee benefit plan" within the meaning of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), that is subject to Title I of ERISA,
a "plan" within the meaning of Section 4975 of the Internal Revenue Code of1986,
as amended (the "Code"), or an entity that is deemed to hold "plan assets"
within the meaning of29 C.F.R. §251O.3-101 of any such employee benefit plan, or
(b) the entering into of this Agreement and the other Loan Documents, the
assumption of the Loan by Purchaser and the existence of the Loan will not
result in an on-exempt prohibited transaction under §406 of ERISA or Section
4975 of the Code. The Purchaser and the Supplemental Carveout Obligors further
warrant and covenant that the foregoing representation will remain true during
the term of the Loan.
(1) Neither the Purchaser nor either of
the Supplemental Carveout Obligors nor any other Obligor nor any of their
respective affiliated entities is or will be 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 ("E013224"), (ii) whose name appears on
the United States Treasury Department's Office of Foreign Assets Control
("OFAC")most current list of "Specifically Designed National and Blocked
Persons,"(which list may be published from time to time in various mediums
including, but not limited to, the OFAC website,
http:xxx.xxxxx.xxx/xxxx/xxxxxx.xxx), (iii) who commits, threatens to commit or
supports "terrorism", as that term is defined in EO 13224, or (iv) who is
otherwise affiliated with any entity or person listed above (any and all parties
or persons described in subparts [i] -[iv] above are herein referred to as a
"Prohibited Person"). The Purchaser and the Supplemental Carveout Obligors
covenant and agree that neither the Purchaser nor either of the Supplemental
Carveout Obligors nor any of their respective affiliated entities will (i)
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(ii) 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. The Purchaser and the Supplemental
Carveout Obligors further covenant and agree to deliver (from time to time) to
the Mortgagee any such certification or other evidence as may be requested by
the Mortgagee in its sole and absolute discretion, confirming that (i) neither
the Mortgagor nor any other Obligor is a Prohibited Person and (ii) neither the
Purchaser nor either of the Supplemental Carveout Obligors has engaged in any
business, transaction or dealings with a Prohibited Person, including, but not
limited to, the making or receiving o any contribution of funds, goods, or
services, to or for the benefit of a Prohibited Person.
(m) The Mortgage and the Lease
Assignment, both as amended by this Agreement, are and will remain a valid and
enforceable first lien and security interest on the Property.
(n) There are no actions, suits,
proceedings, or investigations pending or threatened against or affecting the
Purchaser or either of the Supplemental Carveout Obligors, at law or in equity,
or before or
by any governmental or administrative agency or instrumentality which, if
adversely determined, would have an adverse effect upon the business or
condition of the Purchaser or either of the Supplemental Carveout Obligors or
upon the Property. Neither the Purchaser nor either of the Supplemental Carveout
Obligors is or has been the subject of any bankruptcy, insolvency, or similar
proceeding.
(o) No
judgment, decree, injunction, writ, or order of any court or governmental or
administrative agency or instrumentality has been issued against the Purchaser
or either of the Supplemental Carveout Obligors which has or may have any
adverse effect upon the business or condition of the Purchaser or either of the
Supplemental Carveout Obligors or upon the Property.
(p) The Purchaser has not consulted or
contacted any broker or agent in connection with its acquisition of the Property
or the Purchaser's assumption of the Loan.
(q) The purchase price paid to the
Seller for the acquisition of all of the membership interests in the Purchaser
by COP-ORL TWO, LLC is $14,275,000.00.
11. Representations and
Warranties of the Seller and the Original Carveout Obligor. The Seller
and the Original Carveout Obligor, jointly and severally, represent and warrant
to the Mortgagee that:
(a) No "Default" under (and as defined
in) any of the Original Loan Documents has occurred or is in existence as of the
Effective Date hereof, nor has any event occurred that, with notice and/or the
passage of time, would become a "Default" under any of the Original Loan
Documents.
(b) None of the representations and
warranties made in anyone or more of the Original Loan Documents or any other
agreement, document, or instrument executed in connection therewith is untrue or
incorrect as of the time of delivery of this Agreement.
(c) As of the Effective Date, neither
the Seller nor the Original Carveout Obligor has any knowledge of any present,
pending or threatened condemnation proceeding or award affecting the Real
Property.
(d) As of the Effective Date, no damage
to the Real Property by any fire or other casualty has occurred, other than
damage that has been completely repaired in accordance with good commercial
practice and in compliance with applicable law.
(e) The Original Loan Documents and all
such other agreements are in full force and effect and are enforceable in
accordance with their respective terms, except to the extent that the
enforceability of any of such documents may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
affecting the enforceability of creditor's rights generally, or by equitable
principles of general application (whether considered in an action at law or in
equity).
(f) Neither the Seller nor the Original
Carveout Obligor has any defense, counterclaim, or right of offset with respect
to any indebtedness to the Mortgagee.
12. Indemnification.
The Purchaser and the Supplemental Carveout Obligors, jointly and severally,
hereby agree to defend, indemnify, and hold the Mortgagee harmless from and
against any and all recording, documentary stamp, intangible, and other taxes,
if any, imposed upon the Mortgagee by virtue of the execution and delivery of
this Agreement, any instrument or document executed in connection therewith, or
any of the other Loan Documents (or any of the documents or instruments modified
or renewed thereby), including, without limitation, all penalties, interest, and
attorneys' fees incurred by the Mortgagee in connection therewith. It is
expressly understood and agreed that the liability of the Purchaser and the
Supplemental Carveout Obligors arising under this Section is not limited by any
limitation on the recourse of the Mortgagee for the
Loan that may be provided in the Loan Documents and that the Mortgagee shall
have full recourse to all of the respective assets of the Purchaser and the
Supplemental Carveout Obligors for the obligations arising under this Section.
The provisions of this Section shall survive the repayment of the Note and the
indebtedness evidenced thereby, and the satisfaction of the Loan Documents, and
shall continue for so long as a claim may be asserted by any third
party.
13. No Novation. It
is the intent of the parties that this instrument shall not constitute a
novation, and shall in no way adversely affect the priority of the lien or
security interest or effect of any of the Original Security Instruments. In the
event that this Agreement, or any part hereof, shall be construed by a court of
competent jurisdiction as operating to affect the priority of the lien or
security interest of any of the Original Security Instruments over claims that
would otherwise be subordinate thereto, then to the extent that third parties
acquiring an interest in the Property between the time of execution and delivery
of the Original Security Instruments and the execution and delivery of this
Agreement are prejudiced thereby, this Agreement or such portion hereof as shall
be so construed, shall be void and of no force and effect and this Agreement
shall constitute, as to that portion, a subordinate lien on the collateral
incorporating by reference the terms of the Original Security Instruments, and
which Original Security Instruments then shall be enforced pursuant to the terms
therein contained, independent of this Agreement; provided, however, that
notwithstanding the foregoing, the parties hereto agree as between themselves
that they shall be bound by all terms and conditions hereof until all
indebtedness evidenced by any of the Loan Documents has been satisfied in
full.
14. Ratification.
Except as herein amended, the Original Loan Documents shall remain unaffected,
unchanged, unmodified, and unimpaired, and the priority of the lien and security
interest of the Original Security Instruments on the Property shall not be
changed or in any way altered or affected hereby, and the Note, Original
Security Instruments and the other Original Loan Documents, as herein amended,
are hereby ratified and confirmed.
15. Subordination by Seller
and Original Carveout Obligor. As an inducement to the Mortgagee to
permit a transfer of the Property to, and the assumption of the Loan by, the
Purchaser, the Seller and the Original Carveout Obligor hereby subordinate any
and all indebtedness of the Purchaser hereafter owed to the Seller and/or the
Original Carveout Obligor to all indebtedness of the Purchaser to the Mortgagee,
and covenant with the Mortgagee not to demand or accept any payment of principal
or interest on any such indebtedness or a return while any "Default" exists
under the terms of any of the Loan Documents.
16.
Miscellaneous.
(a) Headings. Paragraph headings used
herein are for convenience only and shall not be construed as controlling the
scope of any provision hereof.
(a) Applicable Law. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Florida.
(b) Time is of the Essence. Time is of
the essence of this Agreement and of each term, covenant, and condition
hereof.
(c) Gender/Number. As used herein, the
plural number shall include the singular and vice versa, and the neuter gender
shall include the masculine and feminine genders, and vice versa, as the context
demands.
(d) Attorneys' Fees, Legal Assistants'
Fees and Costs. Each of the Seller, the Purchaser, the Original Carveout
Obligor, and the Supplemental Carveout Obligors agrees to pay to the Mortgagee
all costs and expenses (including reasonable attorneys' fees) incurred by the
Mortgagee in connection with protecting,
defending, or enforcing the Mortgagee's rights against it under this Agreement,
including costs and reasonable attorneys' fees and legal assistants' fees prior
to trial, at trial, on appeal, and in any bankruptcy, insolvency, or similar
proceedings, and in collecting upon or enforcing any judgment.
(e)
Security. All obligations on the part of the Purchaser and the Supplemental
Carveout Obligors arising under this Agreement shall be secured by the lien and
security interest of the Original Security Instruments, as herein amended, and
shall bear interest at the default rate set forth in the Note from the date due
until paid.
(f) Successors and Assigns. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, personal representatives, successors, and
assigns.
(g) Counterpart Execution. This
instrument may be executed in any number of counterparts, each of which, when
executed and delivered, shall be an original, and such counterparts together
shall constitute one and the same instrument. Signature and acknowledgment pages
may be detached from the counterparts and attached to a single copy of this
document to physically form one document.
(h) WAIVER OF JURY TRIAL. ANY RIGHT TO
A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS
UNDER THIS AGREEMENT IS WAIVED BY EACH OF THE PARTIES HERETO, AND IT IS AGREED
BY EACH OF THE PARTIES HERETO, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A JUDGE AND NOT BEFORE A WRY.
[BALANCE
OF PAGE INTENTIONALLY BLANK.]
IN
WITNESS WHEREOF, the Purchaser, the Supplemental Carveout Obligors, the Seller,
the Original Carveout Obligor, and the Mortgagee have each caused this Agreement
to be executed and delivered effective as of the Effective Date.
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WITNESSES:
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COP-MONROE, LLC, a
Florida limited liability company
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By:
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COP-ORL
TWO, LLC, a Florida limited liability company, its sole Managing
Member
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By:
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CORNERSTONE
OPERATING PARTNERSHIP, L.P., a Delaware limited partnership, its sole
Managing Member
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By:
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CORNERSTONE
CORE PROPERTIES REIT, INC., a Maryland corporation, its sole General
Partner
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By:
/s/ Xxxxxxx X. Xxxxxxxx
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Print
Name: Xxxxxxx X.
Xxxxxxxx
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Its:
Chief Operation Officer
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| WITNESSETH: | CORNERSTONE OPERATING PARTNERSIDP, L.P., a Delaware limited partnership |
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By:
CORNERSTONE CORE PROPERTIES REIT, INC., a Maryland
corporation
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| By: /s/ Xxxxxxx X. Xxxxxxxx | |
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Its:
Chief Operation Officer
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CORNERSTONE
CORE PROPERTIES REIT, INC., a Maryland corporation
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| By: /s/ Xxxxxxx X. Xxxxxxxx | |
| Its: Chief Operation Officer |
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WITNESSES:
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REALVEST-MONROE COMMERCENTER,
L.L.C., a Florida limited liability company
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By:
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Realvest
Development, LLC, a Florida limited liability company, its sold
Manager
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By:
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Realvest
Holdings, LLC, a Flroida limited liability company, its sole Managing
Member
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By: /s/ Xxxxxx X.
Xxxxxxxxxx, Xx.
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As
its: Sole Managing Member
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WITNESSES:
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TRANSAMERICA LIFE INSURANCE
COMPANY., an Iowa corporation
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By:
/s/
Authorized
Signatory
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Print
Name:
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Title: Vice
President
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