Exhibit 10.60
REAFFIRMATION, CONSENT TO TRANSFER
AND SUBSTITUTION OF INDEMNITOR
THIS REAFFIRMATION, AND CONSENT TO TRANSFER AND SUBSTITUTION OF INDEMNITOR
(this "AGREEMENT") is made and entered into as September 7, 2004, by and among
the following parties:
A. BOCA MISSION, LLC, a Delaware limited liability company having a new
address at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇ ("BORROWER");
B. INVESTCORP PROPERTIES LIMITED, a Delaware corporation having an address at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "ORIGINAL INDEMNITOR");
C. NWC GLADES 441, INC., a Delaware corporation having an address at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "ORIGINAL PRINCIPAL");
D. DIVERSIFIED INVEST II, LLC, a Delaware limited liability company having an
address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("DIVERSIFIED", and together
with the Original Principal, "SELLER");
(Original Indemnitor, Original Principal and Diversified are sometimes
referred to herein as the "ORIGINAL OBLIGORS");
E. RAMCO BOCA SPC, INC., a Delaware corporation having an address at ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, the Managing
Member of Borrower (the "SUBSTITUTE PRINCIPAL");
F. RAMCO - ▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L.P., a Delaware limited partnership having
an address at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇ (the "PURCHASER", and in its capacity as a substitute indemnitor, the
"SUBSTITUTE INDEMNITOR");
(Purchaser, Substitute Principal and Substitute Indemnitor are sometimes
referred to herein as the "SUBSTITUTE OBLIGORS")
▇. ▇▇▇▇▇▇▇ BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE REGISTERED HOLDERS OF
LB-UBS COMMERCIAL MORTGAGE TRUST 2003-C5, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2003-C5 whose mailing address is c/o Wachovia
Securities, Commercial Real Estate Services, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ (28262-1075 for overnight deliveries) ("LENDER").
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RECITALS
1. ▇▇▇▇▇▇ Brothers Bank FSB (the "ORIGINAL LENDER"), pursuant to the Loan
Documents (as hereinafter defined) made a loan to Borrower in the original
principal amount of $40,500,000 (the "LOAN"). The Loan is evidenced and secured
by the following documents executed in favor of Original Lender by Borrower:
a. Promissory Note dated as of April 11, 2003, payable by Borrower to
Original Lender in the original principal amount of $40,500,000 (the
"NOTE");
b. Mortgage and Security Agreement (the "MORTGAGE") of even date with the
Note, granted by Borrower to Original Lender, recorded in the real
estate records of Palm Beach County, State of Florida ("RECORDER'S
OFFICE");
c. Assignment of Leases and Rents of even date with the Note granted by
Borrower to Original Lender, recorded in the Recorder's Office (the
"ASSIGNMENT");
d. UCC-1 financing statements with Borrower as debtor and Original Lender
as secured party, filed with the Recorder's Office and with the
Secretary of State of the State of Delaware (collectively the
"FINANCING STATEMENTS");
e. Guaranty of Recourse Obligations of Borrower by and between Original
Indemnitor and Original Lender of even date with the Note (the
"INDEMNITY AGREEMENT");
f. Environmental Indemnity Agreement by and between Borrower, Original
Indemnitor and Original Lender of even date with the Note (the
"ENVIRONMENTAL INDEMNITY AGREEMENT");
g. Cash Management Agreement by and between Borrower and Original Lender
of even date with the Note;
h. Assignment of Agreements, Permits and Contracts by and between
Borrower and Original Lender of even date with the Note;
i. Replacement Reserve and Security Agreement by and between Borrower and
Original Lender of even date with the Note;
j. Excess Cash Reserve and Security Agreement by and between Borrower and
Original Lender of even date with the Note; and
k. Tenant Improvement and Leasing Commission Reserve and Security
Agreement by and between Borrower and Original Lender of even date
with the Note.
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The foregoing documents, together with any and all other documents executed
by Borrower and/or Original Indemnitor in connection with the Loan, are
collectively called the "LOAN DOCUMENTS."
2. Original Lender assigned, sold and transferred its interest in the Loan
and all Loan Documents to Lender and Lender is the current holder of all of
Original Lender's interest in the Loan and Loan Documents.
3. Borrower continues to be the owner of fee title to the real property and
improvements located thereon and continues to be the owner of all of the
property as described in and encumbered by the Mortgage and the other Loan
Documents (the "PROPERTY").
4. Pursuant to that certain Contract of Sale and Purchase dated June 29,
2004, (such agreement together with all amendments thereto the "PURCHASE
AGREEMENT"), Diversified agreed to transfer and sell all of Diversified's
membership interests in the Borrower (representing 99.9% of the ownership
interests of Borrower) to the Purchaser and Original Principal agreed to
transfer and sell all of Original Principal's membership interest in the
Borrower (representing 0.10% of the ownership interests of Borrower) to the
Substitute Principal (collectively, the "TRANSFERRED OWNERSHIP INTERESTS").
5. Borrower (after giving effect to transfer of the Transferred Ownership
Interests) and Purchaser agreed that Substitute Principal would be substituted
in place of and instead of Original Principal as the sole Manager of the
Borrower (the "TRANSFERRED MANAGEMENT INTERESTS").
(the transfers contemplated in Section 4 and Section 5 above are referred
to as the "TRANSFER").
6. The parties acknowledge and agree that Section 8.1 of the Mortgage
requires the consent of Lender for the Transfer. Borrower, Original Obligors and
Substitute Obligors have all requested that Lender consent to the Transfer,
subject to conditions contained in the Mortgage, the other Loan Documents and
this Agreement.
7. Borrower, Original Obligors and Substitute Obligors have also all
requested that Lender consent to the substitution of Substitute Indemnitor as
indemnitor and guarantor under the Indemnity Agreement and the Environmental
Indemnity Agreement and to the assumption by Substitute Indemnitor of all the
obligations of Original Indemnitor under the Indemnity Agreement, the
Environmental Indemnity Agreement, and the other Loan Documents to which
Original Indemnitor is a party (the "SUBSTITUTION").
8. Lender is willing to consent to the Transfer and the Substitution on and
subject to the terms and conditions set forth in this Agreement and in the
Mortgage and in the other Loan Documents.
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STATEMENT OF AGREEMENT
In consideration of the mutual covenants and agreements set forth herein,
the parties hereto hereby agree as follows:
1. CERTAIN REPRESENTATIONS, WARRANTIES, AND COVENANTS REGARDING THE
TRANSFER.
a. Diversified hereby represents and warrants to Lender that it is owner
of 99.9% of the Transferred Ownership Interests, that its ownership
interest is unencumbered, that contemporaneously with the execution
and delivery hereof, it has conveyed and transferred its Transferred
Ownership Interests, and that Diversified is not obtaining or
retaining any security interest or other interest in its Transferred
Ownership Interests. Diversified further represents and warrants to
Lender that in connection with the Transfer, Diversified has retained
no ownership or managerial interest in the Borrower.
b. Original Principal hereby represents and warrants to Lender that it is
the owner of 0.10% of the Transferred Ownership Interests and the
Transferred Management Interests, that its ownership interest is
unencumbered, that contemporaneously with the execution and delivery
hereof, it has conveyed and transferred all of its Transferred
Ownership Interests and all of the Transferred Management Interests to
Substitute Principal, and that Original Principal is not obtaining or
retaining any security interest in its Transferred Ownership Interests
or Transferred Management Interests; Original Principal further
represents and warrants to Lender in connection with the Transfer,
Original Principal has retained no ownership or managerial interest in
the Borrower.
c. Purchaser hereby represents and warrants to Lender, as of the date
hereof, that simultaneously with the execution and delivery hereof,
Purchaser has purchased from Diversified all of its Transferred
Ownership Interests and that Purchaser has not conveyed or granted
Seller, Original Principal or any other party any security interest or
other interest in the Transferred Ownership Interests.
d. Substitute Principal hereby represents and warrants to Lender, as of
the date hereof, that simultaneously with the execution and delivery
hereof, Substitute Principal has purchased from Original Principal all
of its Transferred Ownership Interest and all of the Transferred
Management Interests and that Substitute Principal has not conveyed or
granted Seller, Original Principal or any other party any security
interest or other interest in the Transferred Ownership Interests or
Transferred Management Interests.
e. Original Principal hereby represents and warrants to Lender that the
organizational documents of Borrower, as delivered to Original Lender
in connection with the closing of the Loan (the "BORROWER
ORGANIZATIONAL DOCUMENTS") have not been modified, amended, altered or
changed since the date of the closing of the Loan.
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f. Borrower, Original Principal, Substitute Principal, Diversified and
Purchaser each hereby represent and warrant to Lender that, other than
the substitution of Purchaser and Substitute Principal as the owner of
the Transferred Ownership Interests and the Transferred Management
Interests, the Transfer will not result in any modification,
amendment, alteration or change to the Borrower Organizational
Documents (other than changes to the Borrower Organizational Documents
necessary to effect the Transfer and Substitution). Purchaser and
Substitute Principal each hereby covenants and agrees that it will be
bound by the provisions of the Borrower Organizational Documents.
Borrower, Purchaser and Substitute Principal covenant and agree that
Borrower will remain a bankruptcy remote, special purpose entity
throughout the term of the Loan in accordance with the terms of the
Loan Documents.
g. Original Principal hereby represents and warrants to Lender that the
organizational documents of Original Principal, as delivered to
Original Lender in connection with the closing of the Loan (the
"ORIGINAL PRINCIPAL ORGANIZATIONAL DOCUMENTS") have not been modified,
amended, altered or changed since the date of the closing of the Loan
(other than changes to the Original Principal Organizational Documents
necessary to effect the Transfer and Substitution).
2. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF BORROWER, ORIGINAL
INDEMNITOR, ORIGINAL PRINCIPAL AND DIVERSIFIED.
a. The Borrower and Original Principal each hereby represent and warrant
to Lender, as of the date hereof, that:
i. the Mortgage is a valid first lien on the Property for the full
unpaid principal amount of the Loan and all other amounts as
stated therein;
ii. there are no defaults under the provisions of the Note, the
Mortgage, the Indemnity Agreement, the Environmental Indemnity
Agreement, or the other Loan Documents;
iii. there are no defenses, set-offs or rights of defense, set-off or
counterclaim whether legal, equitable or otherwise to the
obligations evidenced by or set forth in the Note, the Mortgage,
the Indemnity Agreement, the Environmental Indemnity Agreement,
or the other Loan Documents;
iv. all provisions of the Note, Mortgage, the Indemnity Agreement,
the Environmental Indemnity Agreement, and other Loan Documents
are in full force and effect, except as modified herein;
v. there are no subordinate liens of any kind covering or relating
to the Property nor are there any mechanics' liens or liens for
unpaid taxes or assessments encumbering the Property, nor has
notice of a lien or notice of intent to file a lien been
received; and
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vi. The Borrower and Original Principal hereby represent and warrant
that the representations and warranties made by Borrower in the
Mortgage, Note, other Loan Documents or in any other documents or
instruments delivered in connection with the Note, the Mortgage,
or other Loan Documents are true, on and as of the date hereof,
with the same force and effect as if made on and as of the date
hereof, except as disclosed to Lender, and provided that
"Permitted Exceptions" shall be updated to include any exceptions
to title shown in the title policy issued to Borrower on the date
hereof, and that no representation is made with respect to
Section 5.14(a) of the Mortgage or Exhibits D and E to Borrower's
Certification and the Rent Roll attached hereto shall be
substituted for Exhibit J to Borrower's Certification.
vii. The Original Indemnitor hereby represents and warrants that the
representations and warranties, if any, made by Original
Indemnitor in the Mortgage, Note, other Loan Documents or in any
other documents or instruments delivered in connection with the
Note, the Mortgage, or other Loan Documents are true, on and as
of the date hereof, with the same force and effect as if made on
and as of the date hereof.
b. Original Indemnitor hereby represents and warrants that (i) the
representations and warranties made by Original Indemnitor under the
Indemnity Agreement and Environmental Indemnity Agreement are true, on
and as of the date hereof, with the same force and effect as made on
and as of the date hereof; (ii) there are no defaults under the
provisions of the Indemnity Agreement and the Environmental Indemnity
Agreement; (iii) all provisions of the Indemnity Agreement and the
Environmental Indemnity Agreement are in full force and effect; and
(iv) there are no defenses, setoffs or rights of defense, setoff or
counterclaim whether legal, equitable or otherwise to the obligations
set forth in the Indemnity Agreement or Environmental Indemnity
Agreement.
c. Original Principal, Original Indemnitor and Diversified hereby
covenant and agree that from and after the date hereof, Lender may
deal solely with Borrower (as newly constituted) and Substitute
Obligors in all matters relating to the Loan, the Loan Documents, and
the Property and that Lender has no further duty or obligation of any
nature relating to this Loan or the Loan Documents to Original
Principal, Original Indemnitor and Diversified.
d. Original Obligors understand and intend that Lender shall rely on the
representations, warranties and covenants contained herein.
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3. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF BORROWER AND SUBSTITUTE
OBLIGORS.
a. Substitute Obligors hereby represent and warrant to Lender, as of the
date hereof, that:
i. to the knowledge of Substitute Obligors, no default or Event of
Default (as defined in the Mortgage) has occurred or is
continuing;
ii. to the knowledge of Substitute Obligors, all provisions of the
Loan Documents are in full force and effect; and
iii. to the knowledge of Substitute Obligors, the representations and
warranties made in the Mortgage, Note, and other Loan Documents
or in any other documents or instruments delivered in connection
with the Note, the Mortgage, or the other Loan Documents are
true, on and as of the date hereof (except as specified in
Section 2(a)(vii)).
b. Borrower and Substitute Obligors hereby covenant and agree as follows:
i. Borrower and Substitute Indemnitor shall perform all the
respective past, present and future obligations contained in the
Loan Documents in accordance with the terms of this Agreement;
ii. Borrower shall continue to pay when and as due all sums due under
the Note and other Loan Documents (as modified hereby);
iii. Borrower and Substitute Indemnitor shall perform all the
respective obligations imposed under the Note, Mortgage,
Indemnity Agreement, Environmental Indemnity Agreement and all
other Loan Documents, all as modified hereby;
iv. Borrower shall not hereafter, without Lender's prior consent in
accordance with the terms of the Loan Documents, further encumber
the Property or sell or transfer the Property or any interest
therein, except as may be specifically permitted in the Loan
Documents;
c. Substitute Obligors understand and intend that Lender shall rely on
the representations, warranties and covenants contained herein.
4. CONSENT AND REAFFIRMATION OF BORROWER.
a. Borrower hereby represents and warrants to Lender that it has reviewed
the Purchase Agreement, this Agreement, and all the documents executed
in accordance therewith or herewith. Borrower consents to the Transfer
and to the Substitution under the terms of the Purchase Agreement and
this Agreement.
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Borrower further covenants and agrees that the Transfer and the
Substitution shall not, and shall not be deemed to, impair, limit,
abrogate or reduce in any manner or to any extent the liability or
obligations of the Borrower under the Loan Documents.
b. Borrower hereby renews, reaffirms, ratifies and confirms the Note, the
Mortgage and the other Loan Documents and acknowledges and agrees that
the Loan Documents remain in full force and effect without impairment
and without modification (except as specifically provided herein), and
that no rights or remedies of Lender under the Loan Documents have
been waived. Borrower reaffirms the truth and accuracy of all
representations and warranties made by Borrower in the Loan Documents
as if made on the date hereof.
c. Borrower agrees to continue to pay, perform, and discharge each and
every obligation of payment and performance under, pursuant to and as
set forth in the Note, the Mortgage, the Environmental Indemnity
Agreement, and the other Loan Documents at the time, in the manner and
otherwise in all respects as therein provided.
d. Borrower hereby acknowledges, agrees and warrants that (i) there are
no rights of set-off or counterclaim, nor any defenses of any kind,
whether legal, equitable or otherwise, which would enable Borrower to
avoid or delay timely performance of its obligations under the Note,
Mortgage, Indemnity Agreement, Environmental Indemnity Agreement, or
any of the Loan Documents, as applicable; (ii) there are no monetary
encumbrances or liens of any kind or nature against the Property
except those created by the Loan Documents; and (iii) all rights,
priorities, titles, liens and equities securing the payment of the
Note are expressly recognized as valid and are in all things renewed,
continued and preserved in force to secure payment of the Note, except
as amended herein.
5. ASSUMPTION OF OBLIGATIONS BY SUBSTITUTE INDEMNITOR.
a. From and after the date of this Agreement, the Substitute
Indemnitor shall be obligated and responsible for the performance of each and
all of the obligations and agreements of the Original Indemnitor under the Loan
and the Loan Documents, including, without limitation, the Indemnity Agreement
and the Environmental Indemnity Agreement, and the Substitute Indemnitor shall
be liable and responsible for each and all of the liabilities of the Original
Indemnitor thereunder, as fully and completely as if the Substitute Indemnitor
had originally executed and delivered the Loan Documents as the Indemnitor
thereunder, including, without limitation, all of those obligations, agreements
and liabilities which would have, but for the provisions of this Agreement, been
the obligations, agreements and liabilities of the 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 then
responsible or liable therefor at the time of such accrual. From and after the
date hereof, the Substitute Indemnitor further agrees to abide by and be bound
by all of the terms of the Loan Documents having reference to the Original
Indemnitor, all as though each of the Loan Documents had been made,
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executed, and delivered by the Substitute Indemnitor as the Original Indemnitor.
From and after the date hereof, the Substitute Indemnitor hereby agrees to pay,
perform, and discharge each and every obligation of payment and performance of
the Original Indemnitor under, pursuant to and as set forth in the Loan
Documents at the time, in the manner and otherwise in all respects as therein
provided.
b. The Substitute Indemnitor acknowledges and agrees that following
the Transfer it will be an affiliate of the Borrower and will derive substantial
economic benefit from the Lender's agreement to consent to the Transfer and that
there is adequate consideration for the Substitution. The Substitute Indemnitor
acknowledges that the Lender would not consent to the Transfer without the
agreement of Substitute Indemnitor to execute and deliver this Agreement as
substitute indemnitor.
c. The Substitute Indemnitor acknowledges and agrees that it has
received and reviewed (i) that certain Phase I Environmental Site Assessment for
Mission Bay Plaza, dated August 10, 2004, by URS Corporation, and (ii) that
certain Phase II Environmental Site Assessment for the Mission Bay Plaza
Property, dated August 18, 2004, by URS Corporation (collectively, the
"ENVIRONMENTAL REPORTS"). The Substitute Indemnitor understands, acknowledges
and agrees that, pursuant to the substitution of the Substitute Indemnitor for
the Original Indemnitor in Paragraph 5(a) above, the Substitute Indemnitor shall
be liable and responsible for each and all of the liabilities at the Property,
including those environmental concerns addressed in the Environmental Reports,
in accordance with the terms of the Environmental Indemnity Agreement.
6. CONSENT.
(a) Subject to the terms and conditions set forth in this Agreement, Lender
consents to the Transfer, subject to the Mortgage and the other Loan Documents.
Lender's consent to the Transfer shall, however, not constitute its consent to
any subsequent transfers of the Property or any interest therein (as defined in
the Mortgage).
(b) Lender hereby consents to the Original Principal filing the Certificate
of Amendment of Certificate of Incorporation of NWC Glades 441, Inc. with the
Secretary of State of the State of Delaware in connection with the Transfer and
conforming changes to the by-laws of that corporation. Lender's consent herein
shall not constitute its consent to any other previous amendment or
modifications of the Original Principal Organizational Documents made without
the Lender's explicit consent.
(c) Lender hereby consents to the First Amendment to Operating Agreement of
Boca Mission, LLC. Lender's consent herein shall not constitute its consent to
any other previous or future amendments or modifications of the Borrower
Organizational Documents.
7. CONSENT TO SUBSTITUTION AND RELEASE OF ORIGINAL INDEMNITOR. Subject to
the terms and conditions set forth in this Agreement, Lender consents to the
Substitution. From and after the date of this Agreement, the Original Indemnitor
shall, with respect only to those matters first arising or accruing after the
date of this Agreement, be fully released of their liability as the
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Indemnitor under the Loan Documents, including without limitation, the Indemnity
Agreement and Environmental Indemnity Agreement, and the Substitute Indemnitor
shall be substituted, in each and every respect, for the Original Indemnitor, in
lieu of and in place of the Original Indemnitor with respect to each and every
reference to the Indemnitor, in the Loan Documents, including without
limitation, the Indemnity Agreement and Environmental Indemnity Agreement. The
Original Indemnitor hereby acknowledges and agrees that the release set forth
herein shall not be construed to release the Original Indemnitor from any
liability under any of the Loan Documents, including, without limitation, the
Indemnity Agreement and Environmental Indemnity Agreement, for any acts or
events occurring or obligations arising prior to or upon the date of this
Agreement, whether or not such acts, events or obligations are, as of the date
of this Agreement known or ascertainable.
8. NOTICES TO BORROWER AND INDEMNITOR. Without amending, modifying or
otherwise affecting the provisions of the Loan Documents except as expressly set
forth herein, the Lender shall, from and after the date of this Agreement,
deliver any notices to the Borrower and/or "Indemnitor" which are required to be
delivered pursuant to the Loan Documents, or are otherwise delivered by the
Lender thereunder at Lender's sole discretion, to the Borrower's and/or
Substitute Indemnitor's addresses set forth above, as applicable. In addition,
all references to the address of the Borrower and all references to the
"Indemnitor" or to the address of "Indemnitor" in the Loan Documents are hereby
modified to refer to the Borrower's and/or Substitute Indemnitor's addresses set
forth above, as applicable. Any reference to the Borrower's address or primary
place of business shall be references to the Borrower's address set forth above.
9. RELEASE AND COVENANT NOT TO ▇▇▇. Borrower, Original Obligors and
Substitute Obligors, on behalf of themselves and their heirs, successors and
assigns, hereby release and forever discharge Lender, Original Lender, each of
their predecessors in interest and their successors and assigns, together with
any officers, directors, partners, employees, investors, certificate holders and
agents (including, without limitation, servicers of the loan) of each of the
foregoing (collectively the "LENDER PARTIES"), from all debts, accountings,
bonds, warranties, representations, covenants, promises, contracts,
controversies, agreements, claims, damages, judgments, executions, actions,
inactions, liabilities demands or causes of action of any nature, at law or in
equity, known or unknown, which Borrower, Original Obligors and/or Substitute
Obligors now have by reason of any cause, matter, or thing through and including
the date hereof, arising out of or relating to: (a) the Loan, including, without
limitation, its funding, administration and servicing; (b) the Loan Documents;
(c) the Property; (d) any reserve and/or escrow balances held by Lender or any
servicers of the Loan; (e) the Transfer and/or Substitution; and (f) any other
disclosed agreement or transaction between Borrower, Original Obligors and/or
Substitute Obligors and the Lender Parties relating to the Property or the Loan.
Borrower, Original Obligors and Substitute Obligors, on behalf of themselves and
their heirs, successors and assigns, covenant and agree 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 the Lender
Parties by reason of or in connection with any of the foregoing matters, claims
or causes of action.
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10. ACKNOWLEDGMENT OF INDEBTEDNESS. This Agreement recognizes the
reduction of the principal amount of the Note and the payment of interest
thereon to the extent of payments made by Borrower prior to the date of
execution of this Agreement. The parties acknowledge and agree that, as of the
date of this Agreement, the unpaid principal balance of the Note is
$40,500,000.00 and interest on the Note is paid to August 10, 2004. Borrower,
Substitute Indemnitor and Substitute Principal acknowledge and agree that the
Loan, as evidenced and secured by the Loan Documents, is a valid and existing
indebtedness payable by Borrower to Lender. The parties acknowledge that Lender
is holding the following escrow and/or reserve balances:
Tax Escrow: $572,775.10
Insurance Escrow: $ 10,063.79
Replacement Reserve: $ 54,703.55
Tenant Improvement/
Leasing Commission
Reserve: $ 41,559.46
The parties acknowledge and agree that Lender shall continue to hold the
escrow and reserve balances for the benefit of Borrower in accordance with the
terms of the Loan Documents. Original Obligors covenant and agree that the
Lender Parties have no further duty or obligation of any nature to Original
Obligors relating to such escrow and/or reserve balances. Original Obligors
hereby release and forever discharge the Lender Parties from any obligations to
Original Obligors relating to such escrow and/or reserve balances. Borrower and
Substitute Obligors acknowledge and agree that the funds listed above constitute
all of the reserve and escrow funds currently held by Lender with respect to the
Loan and authorize Lender to continue to hold such funds in an account
controlled by Lender for the benefit of Lender and Borrower.
The parties further acknowledge and agree that Lender shall direct the
Deposit Bank (as defined in the Cash Management Agreement) to continue to hold
and manage the accounts established pursuant to the Cash Management Agreement
for the benefit of Borrower in accordance with the terms thereof. Original
Obligors covenant and agree that the Deposit Bank and Lender Parties have no
further duty or obligation of any nature to Original Obligors relating to such
accounts. Original Obligors hereby release and forever discharge the Deposit
Bank and Lender Parties from any obligations to Original Obligors relating to
such accounts.
Lender hereby represents and warrants to Substitute Obligors and Original
Obligors that, to the "actual knowledge of Lender" as of the date hereof, (i) no
Default or event of Default has occurred and is continuing and (ii) the Loan
Documents are in full force and effect and the Loan Documents listed in Recital
A above constitute all of the material documents that evidence and secure the
Loan and such documents have not been amended except as described in this
Agreement. For purposes of this paragraph, the "actual knowledge of Lender"
shall mean the actual knowledge of employees of the Commercial Real Estate
Services Group of Wachovia Bank, National Association ("WB") actively involved
with the transactions described herein or with the servicing of the Loan without
any independent inquiry or investigation. The "actual knowledge of Lender" shall
not include knowledge imputed from other Lender Parties or other groups or
employees of WB not actively involved in servicing the Loan. Lender reserves the
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right to declare any existing Default or Event of Default which subsequently
comes to the attention of Lender.
11. INTEREST ACCRUAL RATE AND MONTHLY INSTALLMENT PAYMENT AMOUNT TO REMAIN
THE SAME. The parties acknowledge and agree that the interest rate and the
monthly payments set forth in the Note shall remain unchanged. Prior to the
occurrence of an Event of Default hereunder or under the Loan Documents,
interest shall accrue on the principal balance outstanding from time to time at
the interest rate(s) set forth in the Note (which does not include such amounts
as may be required to fund the escrow and reserve obligations under the terms of
the Loan Documents) shall continue to be paid in accordance with the terms of
the Note.
12. MODIFICATIONS TO LOAN DOCUMENTS. The Loan Documents are modified as
set forth below:
(a) Article 14(e) of the Note is hereby modified to delete "Investcorp
International Inc." and insert in its stead "Ramco-▇▇▇▇▇▇▇▇▇▇ Properties, L.P.".
(b) Notwithstanding anything to the contrary in the Loan Documents and
Article 17 of the Note, the Borrower hereby initially and irrevocably designates
CT Corporation, with offices in the date hereof at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, to receive for and on behalf of Borrower service of process in
New York, New York with respect to the Note.
(c) Section 3.16 of the Mortgage is hereby amended by deleting "Gumberg
Property Investors, Inc." and inserting in its stead "Ramco-▇▇▇▇▇▇▇▇▇▇, Inc.".
(d) Notwithstanding anything to the contrary in Section 3.11(a)(iv) of the
Mortgage, so long as the Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust, a Maryland real
estate investment trust (the "TRUST"), is the general partner of
Ramco-▇▇▇▇▇▇▇▇▇▇ Properties, L.P., a Delaware limited partnership, any financial
information with respect to the Guarantor or Indemnitor (each as defined in the
Mortgage) required by Section 3.11(a)(iv) shall be satisfied if the financial
information is provided with respect to the Trust.
(e) Section 4.2(i), (i) and (ii) are hereby modified in that the Borrower's
financial statements may be consolidated with the financial statements of the
Trust in accordance with generally accepted accounting procedures then in effect
in the United States of America from time to time ("GAAP").
(f) Section 4.2(y) of the Mortgage is hereby amended as follows:
"Investcorp Properties Limited" shall be deleted and "Ramco-▇▇▇▇▇▇▇▇▇▇
Properties, L.P., a Delaware limited partnership" shall be inserted in its
stead.
(g) Section 5.4 of the Mortgage is hereby deleted and the following
inserted in its stead: "There is no action, suit or proceeding, judicial,
administrative or otherwise (including any condemnation or similar proceedings),
pending or, to the best of Borrower's knowledge, threatened or contemplated
against, or affecting (i) the Property, or (ii) Borrower. There is no
12
action, suit or proceeding, judicial, administrative or otherwise (including any
condemnation or similar proceedings), pending or, to the best of Borrower's
knowledge, threatened or contemplated against, or affecting Guarantor, if any,
or Indemnitor, if any, that would have a material adverse effect on the
condition (financial or otherwise) of the business, prospects, operations,
assets or properties of Guarantor or Indemnitor."
(h) Section 8.3 of the Mortgage is hereby amended as follows:
(i) "Investcorp International Inc. ("INVESTCORP")" shall be deleted
and "Ramco-▇▇▇▇▇▇▇▇▇▇ Properties Trust, a Maryland real estate investment trust"
shall be inserted in its stead.
(ii) The following shall be added as the last sentence of Section 8.3:
"Notwithstanding anything to the contrary in Section 8.1, Section 8.2 or
Section 8.3, the Borrower shall not need to deliver to Lender written notice,
pursuant to Section 8.3, of (i) transfers of stock in the Trust, so long as
shares of the Trust are publicly traded on the New York Stock Exchange, and (ii)
transfers of the limited partnership interests in Ramco-▇▇▇▇▇▇▇▇▇▇ Properties,
L.P., so long as the Trust continues to owns 51% of Ramco-▇▇▇▇▇▇▇▇▇▇ Properties,
L.P., to be a general partner of Ramco-▇▇▇▇▇▇▇▇▇▇ Properties, L.P., and controls
the day to day operations of Ramco-▇▇▇▇▇▇▇▇▇▇ Properties, L.P."
(i) Section 10.1(i) of the Mortgage is hereby amended and the following
substituted in its stead:
"(i) if any federal tax lien is filed against Borrower, any member or
general partner of Borrower, any Guarantor, any Indemnitor or Borrower's
interest in the Property and the same is not discharged within thirty (30) days
after the same is filed; provided, however, the filing of a federal tax lien
shall not be an event of default if (a) any such federal tax lien is being
diligently contested in good faith by appropriate proceedings, (b) such
proceedings shall suspend the collection and/or effect of the federal tax lien,
(c) adequate reserves in accordance with GAAP shall be set aside on the books of
the Borrower, the member or general partner of Borrower, the Guarantor, or
Indemnitor, as applicable, and (d) within thirty (30) days after the lien is
filed, Borrower shall provide written notice to Lender (i) explaining the basis
for any contest, (ii) outlining the applicable proceedings, and (iii)
demonstrating the existence of adequate reserves."
(j) Section 16.1 of the Mortgage is hereby deleted in its entirety and the
following substituted in its stead:
"Section 16.1. Notices. All notices, demands, requests or other written
communications hereunder or required by law shall be in writing and shall be
deemed to have been validly given or served by delivery of the same in person to
the intended addressee, or by depositing the same with Federal Express or
another reputable private courier service for next business day delivery, or by
depositing the same in the United States mail, postage prepaid, registered or
certified mail, return receipt requested, in any event addressed to the intended
addressee addressed as follows:
13
If to Borrower: Boca Mission, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
If to Lender: LaSalle Bank National Association, as Trustee for the
Registered Holders of LB-UBS Commercial Mortgage
Trust 2003-C5, Commercial Mortgage Pass-Through
Certificates, Series 2003-C5
c/o Wachovia Securities, Structured Products Servicing
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ (28262-1075 for
overnight deliveries)
With a copy to: Parker, Poe, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ L.L.P.
Three Wachovia Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇, ▇▇. Esq.
All notices, demands and requests shall be effective (i) upon delivery, if
delivered in person, (ii) one (1) business day after having been deposited for
overnight delivery with any reputable overnight courier service, or (iii) three
(3) business days after having been deposited in the United States mail as
provided above. Rejection or other refusal to accept or the inability to deliver
because of changed address of which no notice was given as herein required shall
be deemed to be receipt of the notice, demand or request sent. By giving to the
other party hereto at least fifteen (15) days' prior written notice thereof in
accordance with the provisions hereof, the parties hereto shall have the right
from time to time to change their respective addresses and each shall have the
right to specify as its address any other address within the United States of
America."
(j) Section 19.2 of the Mortgage is hereby deleted.
13. NO OTHER MODIFICATIONS OF THE LOAN DOCUMENTS. Except as specifically
provided for herein, the parties acknowledge and agree that the Transfer and
Substitution will not result in any modifications to the Loan Documents.
14. CONDITIONS. This Agreement shall be of no force and effect until each
of the following conditions has been met to the complete satisfaction of Lender:
14
a. Fees and Expenses. Borrower shall pay, or cause to be paid: (i) all
costs and expenses incident to the preparation and execution hereof
and the consummation of the transactions contemplated hereby,
including reasonable legal fees of the Lender's counsel and (ii) a
transfer fee to Lender in the amount of $303,750.00, being 0.75% of
the outstanding principal balance of the Note as of the date of the
Transfer and all other fees listed in the conditional approval letter
dated August 17, 2004.
b. Other Conditions. Satisfaction of all requirements under the Loan
Documents and the closing checklist for this transaction as determined
by Lender and Lender's counsel in their sole discretion.
15. DEFAULT.
a. Breach. Any breach by Borrower, and/or Substitute Obligors of the
representations and warranties contained herein shall constitute a
default under the Mortgage and each other Loan Document. Any breach by
Original Obligors of the representations and warranties contained
herein shall constitute a default under this Agreement.
b. Failure to Comply. Any failure by Borrower and/or Substitute Obligors
to fulfill any one of the conditions set forth in this Agreement shall
constitute a default under this Agreement and the Loan Documents. Any
failure by Original Obligors to fulfill any of the conditions set
forth in this Agreement shall constitute a default under this
Agreement.
16. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER AND
SUBSTITUTE OBLIGORS. As a condition of this Agreement, Borrower and Substitute
Obligors represent and warrant to Lender as follows:
a. Borrower is a limited liability company duly organized and validly
existing under the laws of the State of Delaware and is qualified to
do business and in good standing in the State of Florida. Borrower has
full power and authority to enter into and carry out the terms of this
Agreement and to continue to carry out the terms of the Loan
Documents.
b. Substitute Indemnitor is a limited partnership duly organized and
validly existing and in good standing under the laws of the State of
Delaware. Substitute Indemnitor has full power and authority to enter
into and carry out the terms of this Agreement and to assume the
obligations of the Original Indemnitor under the Loan Documents.
c. Purchaser is a limited partnership duly organized and validly existing
and in good standing under the laws of the State of Delaware.
Purchaser has full power and authority to enter into and carry out the
terms of this Agreement and to own its Transferred Ownership
Interests.
15
d. Substitute Principal is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and
is authorized to transact business as a foreign corporation in each
jurisdiction in which such authorization is necessary for the
operation of the business or properties of Borrower. Substitute
Principal has full power and authority to enter into this Agreement on
its own behalf and to execute this Agreement. Substitute Principal has
full power and authority to own its Transferred Ownership Interests
and the Transferred Management Interests.
e. This Agreement constitutes the legal, valid and binding obligations of
Borrower and Substitute Obligors enforceable in accordance with its
terms. Neither the entry into nor the performance of and compliance
with this Agreement has resulted or will result in any violation of,
or a conflict with or a default under, any judgment, decree, order,
mortgage, indenture, contract, agreement or lease by which Borrower or
Substitute Obligors or any property of Borrower or Substitute Obligors
are bound or any statute, rule or regulation applicable to Borrower or
to Substitute Obligors.
f. The Loan Documents constitute the legal, valid and binding obligations
of Borrower and Substitute Indemnitor, as applicable, enforceable in
accordance with their terms. Neither the entry into nor the
performance of and compliance with any of the Loan Documents has
resulted or will result in any violation of, or a conflict with or a
default under, any judgment, decree, order, mortgage, indenture,
contract, agreement or lease by which Borrower or Substitute
Indemnitor or any property of Borrower or Substitute Indemnitor are
bound or any statute, rule or regulation applicable to Borrower or
Substitute Indemnitor.
g. Neither the execution of this Agreement nor the assumption and
performance of the obligations hereunder has resulted or will result
in any violation of, or a conflict with or a default under, any
judgment, decree, order, mortgage, indenture, contract, agreement or
lease by which the Borrower or Substitute Obligors or any property of
Borrower or Substitute Obligors are bound or any statute, rule or
regulation applicable to the Borrower or the Substitute Obligors.
h. There is no action, proceeding or investigation pending or threatened
which questions, directly or indirectly, the validity or
enforceability of this Agreement or any of the other Loan Documents,
or any action taken or to be taken pursuant hereto or thereto, or
which might result in any material adverse change in the condition
(financial or otherwise) or business of Borrower or Substitute
Obligors.
i. There has been no legislative action, regulatory change, revocation of
license or right to do business, fire, explosion, flood, drought,
windstorm, earthquake, accident, other casualty or act of God, labor
trouble, riot, civil commotion, condemnation or other action or event
which has had any material adverse effect, on the business or
condition (financial or otherwise) of Substitute Obligors or any
16
of their properties or assets, whether insured against or not, since
Substitute Obligors submitted to Lender their request for the
Transfer.
j. The financial statements and other data and information supplied by
Substitute Obligors in connection with Substitute Obligors' request
for the Transfer or otherwise supplied in contemplation of Transfer
were in all material respects true and correct on the dates they were
supplied, and since their dates no material adverse change in the
financial condition of Substitute Obligors has occurred, and there is
not any pending or threatened litigation or proceedings which might
impair to a material extent the business or financial condition of
Substitute Obligors.
k. Borrower and Substitute Indemnitor hereby specifically remake and
reaffirm the representations, warranties and covenants set forth in
the Mortgage, the Indemnity Agreement, the Environmental Indemnity
Agreement and the other Loan Documents.
l. Borrower hereby represents and warrants to Lender that Borrower will
not permit the transfer of any interest in Borrower to any person or
entity (or any beneficial owner of such entity) who is listed on the
specifically Designated Nationals and Blocked Persons List maintained
by the Office of Foreign Asset Control, Department of the Treasury
pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25,
2001) an/or any other list of terrorists or terrorist organizations
maintained pursuant to any of the rules and regulations of Office of
Foreign Asset Control, Department of the Treasury or pursuant to any
other applicable Executive Orders (such lists are collectively
referred to as the "OFAC LISTS"). Borrower will not knowingly enter
into a lease with any party who is listed on the OFAC Lists. Borrower
shall immediately notify Lender if Borrower has knowledge that any
member of beneficial owner of Borrower is listed on the OFAC Lists of
(A) is indicted on or (B) arraigned and held over on charges involving
money laundering or predicate crimes to money laundering. Borrower
shall immediately notify Lender if Borrower knows that any tenant is
listed on the OFAC Lists or (A) is convicted on, (B) pleads nolo
contender to, (C) is indicted on or (D) is arraigned and held over on
charges involving money laundering or predicate crimes to money
laundering. Borrower further represents and warrants to Lender that
Borrower is currently not on the OFAC list.
m. To the knowledge of Borrower and Substitute Obligors, no
representation or warranty of Borrower or Substitute Obligors made in
this Agreement contains any untrue statement of material fact or omits
to state a material fact necessary in order to make such
representations and warranties not misleading in light of the
circumstances under which they are made.
Any breach of Borrower or Substitute Obligors of any of the representations and
warranties shall constitute an Event of Default under the Mortgage and each
other Loan Document.
17
17. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF ORIGINAL
OBLIGORS. As a condition of this Agreement, Original Obligors represent and
warrant to Lender as follows:
a. Diversified represents and warrants to Lender that Diversified is a
limited liability company duly organized and validly existing and in
good standing in the State of Delaware. Diversified has full power and
authority to enter into and carry out the terms of this Agreement and
to carry out the Transfer.
b. Original Indemnitor represents and warrants to Lender that Original
Indemnitor is a limited liability company duly organized and validly
existing under the laws of the State of Delaware. Original Indemnitor
has full power and authority to enter into and carry out the terms of
this Agreement.
c. Original Principal represents and warrants to Lender that Original
Principal is a corporation duly organized and validly existing in good
standing under the laws of the State of Delaware and is authorized to
transact business as a foreign corporation in each jurisdiction in
which such authorization is necessary for the operation of the
business or properties of Borrower. Original Principal and has full
power and authority to enter into this Agreement on its own behalf and
to execute this Agreement.
d. This Agreement, the Purchase Agreement and all other documents
executed by Original Obligors in connection therewith and herewith,
constitute legal, valid and binding obligations of Original Obligors
enforceable in accordance with their respective terms. Neither the
entry into nor the performance of and compliance with this Agreement,
the Purchase Agreement or the other documents executed by Original
Obligors in connection therewith or herewith has resulted or will
result in any violation of, or a conflict with or a default under, any
judgment, decree, order, mortgage, indenture, contract, agreement or
lease by which Original Obligors or any property of Original Obligors
are bound or any statute, rule or regulation applicable to Original
Obligors.
e. Original Principal has not received any written notices from any
governmental entity claiming that Original Obligors, the Borrower or
the Property is not presently in compliance with any laws, ordinances,
rules, and regulations bearing upon the use and operation of the
Property, including, without limitation, any notice relating to zoning
laws or building code regulations, except as disclosed to Lender in
writing.
f. The Original Principal hereby represents and warrants the following to
Lender: The Rent Roll provided to Lender and certified as of the date
hereof, is a true, complete and accurate summary of all tenant leases
("TENANT LEASES" or individually a "TENANT LEASE") affecting the
Property as of the date of this Agreement. No rent has been prepaid
under any Tenant Lease except rent for the current month. To the
actual knowledge of Original Principal, each Tenant Lease has been
duly executed and delivered by, and is a binding obligation of, the
18
respective tenant, and each Tenant Lease is in full force and effect.
Each Tenant Lease represents the entire agreement between the landlord
and the respective tenant and no Tenant Lease has been terminated,
renewed, amended, modified or otherwise changed without obtaining any
prior written consent of Lender as required by the Loan Documents. The
tenant under each Tenant Lease has taken possession of and is in
occupancy of the premises therein described and is open for business
(other than Eastern Financial and as shown on the Rent Roll). Rent
payments have commenced under each Tenant Lease, and all tenant
improvements in such premises and other conditions to occupancy and/or
rent commencement have been completed by Landlord. To the actual
knowledge of Original Principal, all obligations of the landlord under
the Tenant Leases have been performed, and no event has occurred and
no condition exists that, with the giving of notice or lapse of time
or both, would constitute a default by Landlord under any Tenant
Lease. To the actual knowledge of Original Principal, there are no
offsets or defenses that any tenant has against the full enforcement
of any Tenant Lease by the landlord thereunder. Each Tenant Lease is
fully and freely assignable by the landlord without notice to or the
consent of the tenant thereunder.
g. Borrower and Original Principal represent and warrant to Lender that
Borrower is the current owner of the Property and there are no pending
or, to Original Principal's actual knowledge, threatened suits,
judgments, arbitration proceeding, administrative claims, executions
or other legal or equitable actions or proceedings against Original
Obligors, Borrower or the Property, or any pending or threatened
condemnation or annexation proceedings affecting the Property, or any
agreements to convey any portion of the Property, or any rights
thereto, not disclosed in this Agreement, including, without
limitation to any governmental agency.
h. No representation or warranty of Original Obligors made in this
Agreement contains any untrue statement of material fact or omits to
state a material fact necessary in order to make such representations
and warranties not misleading in light of the circumstances under
which they are made.
18. NO FURTHER CONSENTS. Borrower, Substitute Indemnitor, Substitute
Principal, and Purchaser acknowledge and agree that Lender's consent herein
contained is expressly limited to the Transfer and Substitution, as herein
described, that such consents shall not waive or render unnecessary Lender's
consent or approval of any subsequent sale, conveyance, assignment or transfer
of the Property or any interest therein, or any future substitution of
indemnitor, and that Section 8.1 of the Mortgage shall continue in full force
and effect.
19. INCORPORATION OF RECITALS. Each of the Recitals set forth above in
this Agreement are incorporated herein and made a part hereof.
20. PROPERTY REMAINS AS SECURITY FOR LENDER. All of the Property as
described and defined in the Mortgage shall remain in all respects subject to
the lien, charge or encumbrance of
19
the Mortgage, and, nothing herein contained and nothing done pursuant hereto
shall affect or be construed to release or affect the liability of any party or
parties who may now or hereafter be liable under or on account of the Note or
the Mortgage, nor shall anything herein contained or done in pursuance hereof
affect or be construed to affect any other security for the Note, if any, held
by Lender.
21. NO WAIVER BY LENDER. Nothing contained herein shall be deemed a waiver
of any of Lender's rights or remedies under any loan agreement, the Note, the
Mortgage, any of the other Loan Documents, or under applicable law.
22. CAPTIONS. The headings to the Sections of this Agreement have been
inserted for convenience of reference only and shall in no way modify or
restrict any provisions hereof or be used to construe any such provisions.
23. PARTIAL INVALIDITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable, and this Agreement shall be construed and enforced as
if such illegal, invalid or unenforceable provision had never comprised a part
of this Agreement.
24. ENTIRE AGREEMENT. This Agreement and the documents contemplated to be
executed herewith constitutes the entire agreement among the parties hereto with
respect to the Transfer and Substitution and shall not be amended unless such
amendment is in writing and executed by each of the parties. The Agreement
supersedes all prior negotiations regarding the subject matter hereof. This
Agreement may not be amended, revised, waived, discharged, released or
terminated orally, but only by a written instrument or instruments executed by
the party against which enforcement of the amendment, revision, waiver,
discharge, release or termination is asserted. Any alleged amendment, revision,
waiver, discharge, release or termination which is not so documented shall not
be effective as to any party.
25. BINDING EFFECT. This Agreement and the documents contemplated to be
executed in connection herewith shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns; provided,
however, that the foregoing provisions of this Section shall not be deemed to be
a consent by Lender to any further sale, conveyance, assignment or transfer of
the Property or any interest therein (as defined in the Mortgage).
26. MULTIPLE COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which will be an original, but all of which, taken
together, will constitute one and the same Agreement.
27. GOVERNING LAW. This Agreement shall be governed, construed, applied
and enforced in accordance with the laws of the State of Florida.
28. EFFECTIVE DATE. This Agreement shall be effective as of the date of
its execution by the parties hereto and thereupon is incorporated into the terms
of the Loan Documents.
20
29. TIME OF ESSENCE. Time is of the essence with respect to all provisions
of this Agreement.
30. CUMULATIVE REMEDIES. All remedies contained in this Agreement are
cumulative and Lender shall also have all other remedies provided at law and in
equity or in the Mortgage and other Loan Documents. Such remedies may be pursued
separately, successively or concurrently at the sole subjective direction of
Lender and may be exercised in any order and as often as occasion therefor shall
arise.
31. CONSTRUCTION. Each party hereto acknowledges that it has participated
in the negotiation of this Agreement and that no provision shall be construed
against or interpreted to the disadvantage of any party. Each of the parties has
had sufficient time to review this Agreement, have been represented by legal
counsel at all times, have entered into this Agreement voluntarily and without
fraud, duress, undue influence or coercion of any kind. No representations or
warranties have been made by Lender to any party except as set forth in this
Agreement.
32. REPRESENTATIONS AND WARRANTIES MADE BY ORIGINAL OBLIGORS. The
representations and warranties made by Original Obligors herein are made solely
to and for the benefit of Lender, its successors and assigns, and neither
Purchaser nor any other party shall be deemed a third party beneficiary of such
representations and warranties.
[SEE ATTACHED SIGNATURE PAGES]
21
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the date first aforesaid.
BORROWER: BOCA MISSION, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President
SUBSTITUTE: RAMCO BOCA SPC, INC.,
PRINCIPAL a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President
22
SUBSTITUTE
INDEMNITOR: RAMCO - ▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L.P.,
a Delaware limited partnership
By: RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES TRUST,
a Maryland real estate investment trust
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President
PURCHASER: RAMCO - ▇▇▇▇▇▇▇▇▇▇ PROPERTIES, L.P.,
a Delaware limited partnership
By: RAMCO-▇▇▇▇▇▇▇▇▇▇ PROPERTIES TRUST,
a Maryland real estate investment trust
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President
23
ORIGINAL
PRINCIPAL: NWC GLADES 441, INC.,
a Delaware corporation
By: /s/ F. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: F. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
ORIGINAL
INDEMNITOR: INVESTCORP PROPERTIES LIMITED,
a Delaware corporation
By: /s/ F. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: F. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SELLER: DIVERSIFIED INVEST II, LLC,
a Delaware limited liability company
By: /s/ F. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: F. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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LENDER: LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE REGISTERED
HOLDERS OF LB-UBS COMMERCIAL MORTGAGE TRUST 2003-C5, COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2003-C5
By: WACHOVIA BANK, NATIONAL ASSOCIATION, solely in its capacity as
Master Servicer, as authorized pursuant to that Pooling and
Servicing Agreement dated July 11, 2003
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
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