CONSENT AND AGREEMENT
EXHIBIT
10.23
The
undersigned (“Manager”)
acknowledges an assignment of documents contained in that certain Deed of Trust,
Assignment of Leases, Security Agreement and Fixture Filing (the “Security
Instrument”) to be
executed and delivered by LVP OAKVIEW STRIP CENTER LLC, a Delaware limited
liability company ("Borrower"), having its chief executive offices c/o The
Lightstone Group, 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 to the trustee
named therein for the benefit of WACHOVIA BANK, NATIONAL ASSOCIATION
(“Lender”), in
connection with that certain loan (the “Loan”) of
TWENTY-SEVEN MILLION FIVE HUNDRED THOUSAND AND 00/100
DOLLARS ($27,500,000.00) being
made by Lender to Borrower to finance certain real property and improvements
more particularly described in the Security Instrument, said real property and
improvements being hereinafter referred to as the “Property.”
Manager has agreed to perform or supply certain services in connection with the
management of the Property pursuant to a certain property management agreement,
dated December __, 2006 (the “Contract”), a
true, accurate and complete copy of which has been delivered to Lender. Manager
does hereby (a) warrant and represent that the Contract contains all
agreements between Manager and Borrower relating to the Property;
(b) acknowledge and consent to the assignment of the Contract as set forth
in the Security Instrument and to any further assignment thereof by Lender;
(c) warrant and represent that no default exists under the terms of any
agreement between Borrower and Manager; and (d) acknowledge that Borrower
has satisfied all conditions precedent to commencement of performance by Manager
under the Contract. Manager does hereby agree that: (i) in the event of any
default by Borrower under the terms of the “Loan Documents” (as defined in the
Security Instrument), Manager shall, upon receipt of written notice and demand
of Lender, continue performance on behalf of Lender provided that Manager is
reimbursed for such performance rendered thereafter on behalf of Lender in
accordance with the Contract; (ii) in the event of any default by Borrower
under the Contract, Manager shall deliver to Lender, by certified United States
mail, postage prepaid, return receipt requested, addressed to Wachovia Bank,
National Association, Commercial Real Estate Services, 0000 Xxxxxxxx Xxxxx URP -
4, NC 1075, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Real Estate Capital
Markets, Commercial Real Estate Finance, written notice of such default and the
action required to cure the same, and Lender shall have a reasonable time (but
in no event less than thirty days after receipt of such notice) within which
Lender shall have the right, but not the obligation, to cure such default, and
the delivery of such notice of default and the failure of Lender to cure the
same within such time allowed shall be conditions precedent to the exercise of
any right or remedy of Manager arising by reason of such default;
(iii) Manager shall not enter into any material modification of, or
addition to, the Contract without the prior written consent of Lender such
consent not to be reasonably withheld; (iv) in the event of any default by
Borrower under the terms of the Loan Documents, or upon the occurrence of
certain circumstances which are more particularly described in the Security
Instrument, the Contract shall be terminable at the option of Lender upon thirty
days’ notice; (v) the rights of Manager under the Contract to receive any
compensation, reimbursement of costs and expenses or other payments in
consideration for its management services for the Property shall be and remain
subordinate in all respects to the Lender’s rights under the Loan Documents;
(vi) Manager acknowledges receipt of a copy of the Security Instrument; (vii)
the Contract may be terminated at any time by Lender for cause (including, but
not limited to, Manager’s gross negligence, misappropriation of funds, willful
misconduct or fraud) by delivery of written notice of such termination to
Manager; and (viii) Manager shall comply with the terms and conditions contained
in the Security Instrument relating to the management of the
Property.
Manager
represents that it is looking solely to Borrower, and not to Lender, for payment
under the Contract and Manager waives any and all liens and claims which Manager
may now or hereafter have upon the proceeds of the Loan or the
Property.
All
notices to Manager shall be sent by certified United States Mail, postage
prepaid, return receipt requested, to Manager at the address set forth on the
signature page hereof.
In the
event of an inconsistency between the terms of the Contract and the terms of
this Consent and Agreement, the terms of this Consent and Agreement shall
control.
No
modification, amendment, extension, discharge, termination or waiver of any
provision of this Consent and Agreement shall in any event be effective unless
the same shall be in a writing signed by the party against whom enforcement is
sought, and then such waiver of consent shall be effective only in the specific
instance, and for the purpose, for which given.
This
Consent and Agreement (a) shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns, (b) shall be
governed by, and construed in accordance with, the laws of Nebraska, and (c) is
given by Manager for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Manager, and is intended to
induce Lender to make the Loan to Borrower.
* * * * *
2
WITNESS
the hand and seal of Manager, as of December 20, 2006.
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BEACON
PROPERTY
MANAGEMENT,
LLC, a
limited
liability company
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| By: | /s/ Xxxx Xxxxxxxx | |
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Name:
Xxxx Xxxxxxxx
Title:
Vice President
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Address
for Notices to Manager:
000 Xxxxx
Xxxxxx
Xxxxxxxx,
Xxx Xxxxxx 00000
