ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION
AGREEMENT (this “Assignment”) is made
as of June ____, 2010, between CITIGROUP GLOBAL MARKETS REALTY
CORP., a New York corporation, as seller (“Seller”), and [LIGHTSTONE VALUE PLUS REAL ESTATE
INVESTMENT TRUST II, INC., a Maryland corporation], as purchaser (“Purchaser”).
Seller,
in consideration of the payment of $7,857,000 (the “Payment”) on the date
hereof, the receipt and sufficiency of which are acknowledged, hereby sells,
transfers, assigns, delivers, sets-over and conveys to Purchaser, without
recourse and without representations, warranties or covenants, express or
implied, except as set forth on Exhibit A attached
hereto and made a part hereof, all right, title and interest of Seller in and to
that certain mortgage loan in the original principal amount of $18,675,000 (the
“Loan”) made by
Seller, as lender, to the parties set forth on Exhibit C attached
hereto, each as borrower (individually and collectively, as the context may
require, “Borrower”),
including, without limitation, any claims and causes of action with respect to
the Loan. The Loan is secured by, among other things, that certain
Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing,
dated as of August 31, 2007, executed by Borrower to Seller (the “Security
Instrument”), and recorded on September 17, 2007, in Mortgage Book 16984,
Page 620 in the Official Records of Bergen County, New Jersey. Capitalized terms
used but not otherwise defined herein shall have the respective meanings given
thereto in the Security Instrument.
The Loan
and the Loan Documents are being sold, transferred and assigned to Purchaser
“AS-IS, WHERE IS, AND WITH ALL FAULTS”, except as expressly provided herein
(including Exhibit
A). Purchaser hereby acknowledges that neither Seller nor any
other person or entity has made any representations or warranties with respect
to the Loan or the Loan Documents (except as expressly provided herein
(including Exhibit
A), and that, except to the extent expressly provided herein (including
Exhibit A) to
the contrary, Seller shall not have any responsibility for (i) the
collectability of the Loan, (ii) the validity, enforceability or legal effect of
any of the Loan Documents or any due diligence materials furnished to Seller in
connection with the origination and/or sale of the Loan, (iii) the validity,
sufficiency, priority or effectiveness of any lien created by the Loan
Documents, (iv) the financial condition of Borrower or any guarantor(s) or the
ability of any such party to perform their respective obligations under the Loan
Documents, (v) the existence or nonexistence of any default or Event of Default
under the Loan Documents, (vi) rights of offset, deductions, negotiability or
holder in due course status, or the accuracy or completeness of the matters
disclosed, represented or warranted by any party in the Loan Documents, (vii)
the condition of the Loan or the value or income potential of the Loan or any
collateral for the Loan, (viii) the adequacy of the collateral for
the Loan or (ix) the state of title to the Property or any other collateral
pledged in respect of the Loan, except to the extent of the representations and
warranties provided herein (including Exhibit A). Without in any way
limiting the generality of the foregoing, except to the extent of the
representations and warranties provided herein (including Exhibit A), Seller has
not made, does not make or undertake, and expressly disclaims any
representation, warranty or obligation, expressed or implied, as to any
characteristic or other matter affecting or related to the Property, including
the presence of any Hazardous Substance in the Property or any other
environmental or other matters related to the physical condition of the Property
(both surface and subsurface). Except as expressly provided herein
(including Exhibit
A), Purchaser assumes all risk of loss in connection with the Loan from
and after the date hereof. Purchaser has been given reasonable
opportunity to review and, to the extent Purchaser deemed necessary, has
examined, and in any case, Purchaser hereby acknowledges (subject to the
representation of Seller contained in subsection (a)(viii) of Exhibit A) that
Seller has made available to Purchaser all of the Loan Documents and the terms
of the Loan, and the terms and conditions of all other documents and agreements
relating to the Loan entered into by Borrower, or any guarantor of the
Loan.
Purchaser
acknowledges that neither Seller nor its agents, employees, officers,
representatives or attorneys have made any representation or warranty with
respect to any tax matters relating to the transactions contemplated hereby,
Purchaser shall be solely responsible for its own tax analysis and Seller shall
have no liability or obligation whatsoever in connection with any tax
consequences or treatment relating to or arising from the sale of the Loan by
Seller to Purchaser.
Purchaser
hereby accepts the foregoing assignment and hereby assumes and agrees to
fulfill, perform and discharge, from and after the date hereof, all of the
obligations of Seller with respect to the Loan under the Loan Documents accruing
from and after the date hereof, to the same effect as if Purchaser had been
Seller under the Loan. From and after the date hereof, Seller shall
be released of the foregoing commitments, obligations and liabilities accruing
from and after the date hereof.
Each of
Purchaser and Seller represents and warrants to the other that no broker or
finder has been engaged by it and it has had no conversations or discussions
with any broker or finder in connection with the Property, the Loan or any of
the transactions contemplated by this Assignment and to its knowledge no broker
or finder is in any way connected with any of such transactions.
Seller
covenants and agrees with the Purchaser that, at any time, and from time to time
hereafter, upon the reasonable request of the Purchaser, and without payment of
further consideration to the Seller (except for the Seller’s reasonable
verifiable third party costs and expenses incurred in connection with the
Purchaser’s request, which costs and expenses shall be paid by the Purchaser),
Seller shall do, execute, acknowledge and deliver, and shall cause to be done,
executed, acknowledged and delivered, all such further acts, deeds, documents,
instruments, assignments, transfers, conveyances and assurances as may be
reasonably required in order to better assign, transfer, grant, convey and
confirm to the Purchaser, the Loan sold by the Seller as provided for
herein. Furthermore, as soon as practicable after the date of this
Assignment, Seller shall execute such documents as are required by applicable
law so as to substitute Purchaser as the party plaintiff in any litigation,
foreclosure or trustee’s sale, any of the preceding of which was commenced by
Seller with respect to the Loan prior to the date hereof.
Purchaser
covenants and agrees that at any time, and from time to time hereafter, upon the
reasonable request of the Seller, and without payment of further consideration
to the Purchaser (except for Purchaser’s reasonable verifiable third party costs
and expenses incurred in connection with Seller’s request, which costs and
expenses shall be paid by Seller), the Purchaser shall do, execute, acknowledge
and deliver, and shall cause to be done, executed, acknowledged and delivered,
all such further acts, deeds, documents, instruments, assignments, transfers,
conveyances and assurances as may be reasonably required in order to reflect
accurately the status of title to the Loan, and to execute the intent evidenced
by this Assignment. Furthermore, as soon as practicable after the
date hereof, Purchaser shall execute such documents as are required by
applicable law so as to substitute Purchaser as the party plaintiff in any
litigation, foreclosure or trustee’s sale, any of the preceding of which was
commenced by Seller with respect to the Loan prior to the date
hereof.
2
The
schedules and exhibits to this Assignment are incorporated and made a part
hereof and are an integral part of this Assignment.
Each party hereto shall treat as
confidential the transactions contemplated hereby, the parties hereto, the terms
of this Assignment, the purchase price for the Loan (or any component thereof),
the negotiations between each Seller and Purchaser and their respective
affiliates who have engaged in such negotiations in connection with the
transactions contemplated herein and/or any correspondence relating to such
negotiations between each Seller and Purchaser and their respective affiliates
who have sent or received such correspondence (such information, exclusive of
any information expressly permitted to be contained in any Publicity Statement
(as defined below) in accordance with the immediately succeeding
paragraph, collectively, the “Confidential
Information”), except that neither Purchaser nor Seller shall be
precluded from making such filings as may be required by law (including, without
limitation, the Securities Act of 1933, the Securities Exchange Act of 1934 and
the regulations promulgated thereunder) or the rules of any stock
exchange. Neither Purchaser nor Seller shall disclose the
Confidential Information to any Person without the other party’s prior written
consent, except each of Seller and Purchaser may disclose such Confidential
Information (a) to its officers, directors, affiliates, members, employees,
agents, accountants, auditors, attorneys and advisors (collectively, “Representatives”) who
are directly involved in the consideration of the transactions contemplated
herein or (b) as may be compelled in a judicial or administrative proceeding or
as otherwise required by law. In the event that Purchaser or Seller
is required by a judicial or administrative proceeding or as otherwise required
by law to disclose any Confidential Information, Purchaser or Seller, as
applicable, will (unless prohibited by law or regulation from doing so) provide
the other party hereto with prompt notice of such request or requirement so that
such party may seek an appropriate protective order. If, failing the
entry of a protective order, Purchaser or Seller is, upon the advice of its
counsel, compelled to disclose such Confidential Information, Purchaser or
Seller, as applicable, may disclose that portion of the Confidential Information
that its counsel advises that it is compelled to disclose and will cooperate
with the other party hereto in its efforts to obtain a protective order or other
reliable assurance that only the designated portion of the Confidential
Information will be disclosed. This Assignment shall not, and no
memorandum or other document relating to this Assignment (other than with
respect to any recorded Loan Documents) shall be recorded by Purchaser or Seller
without the prior written consent of the other party
hereto. Notwithstanding anything to the contrary contained in this
Assignment, this Assignment shall be subject to that certain Limited Disclosure
Agreement dated as of April 21, 2010, between Seller and an affiliate of
Purchaser (collectively, the “Existing Confidentiality
Agreement”); provided, however that nothing contained in the Existing
Confidentiality Agreement shall preclude Purchaser or Seller from making such
filings as may be required by law (including, without limitation, the Securities
Act of 1933, the Securities Exchange Act of 1934 and the regulations promulgated
thereunder) or the rules of any stock exchange. Except as set forth
in the preceding sentence, in the event of any conflict or ambiguity between the
terms of this paragraph and the terms of the Existing Confidentiality Agreement,
the terms of the Existing Confidentiality Agreement shall govern. The
terms of this paragraph shall survive the closing of the transactions
contemplated pursuant to this Assignment.
3
All news releases, publicity or
advertising by Purchaser or Seller or their respective affiliates through any
media intended to reach the general public referring to the transactions
contemplated herein (a “Publicity Statement”)
shall be subject to the prior written approval of the other party hereto, which
approval shall not be unreasonably withheld; provided, however, that any
Publicity Statement that only contains the names of Seller and Purchaser, the
Property name and address, the fact that Seller sold the Loan to Purchaser and
the closing date of such sale and otherwise does not contain any Confidential
Information shall not require the consent of either party
hereto. Each party shall use commercially reasonable efforts to
respond to any request for approval required under this paragraph within five
(5) business days of request therefor, provided, however, failure to so respond
in such five (5) business day period shall not limit or otherwise affect the
non-responding party’s rights hereunder.
This Assignment shall be governed by
and construed in accordance with the laws of the State of New Jersey, without
giving effect to the choice of law rules and principles of said
state. Each of the parties hereto irrevocably submits to the
exclusive jurisdiction of the courts of the State of New Jersey and the federal
courts of the United States of America located within such state for the purpose
of any action or proceeding relating to this Assignment. SELLER AND
PURCHASER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS
ASSIGNMENT.
This Assignment contains the entire
agreement between Seller and Purchaser relating to the transactions contemplated
hereby and supersedes and replaces all prior discussions, representations,
communications and agreements (oral and written), other than the Existing
Confidentiality Agreement.
This Assignment may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
4
IN WITNESS WHEREOF, Seller and
Purchaser have executed this Assignment and Assumption Agreement as of the date
first above written.
| SELLER: | |||
| CITIGROUP GLOBAL MARKETS REALTY CORP., a New York corporation | |||
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By:
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By:
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