DEFEASANCE ASSIGNMENT, ASSUMPTION AND RELEASE AGREEMENT
EXHIBIT 10.5
THIS DEFEASANCE ASSIGNMENT, ASSUMPTION AND RELEASE AGREEMENT (this “Agreement”) is dated as of
May 9, 2006, among WINSTON SPE LLC, a Virginia limited liability company (“Pledgor”), ▇▇▇▇▇ FARGO
BANK, N.A. (f/k/a Norwest Bank Minnesota, National Association), a national banking association, as
trustee, under the Pooling and Servicing Agreement, dated as of March 1, 1999 (as amended from time
to time, the “Pooling and Servicing Agreement”), for the registered holders of DLJ Commercial
Mortgage Corp., Commercial Mortgage Pass-Through Certificates, Series 1999-CG1 (together with its
successors and assigns, “Pledgee”), ▇▇ ▇▇▇▇▇▇▇ HOLDINGS, LLC, a Delaware limited liability company
(“Successor Borrower”), WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association (as
successor to GE Capital Loan Services, Inc.), as master servicer (“Servicer”) under the Pooling and
Servicing Agreement, and, for the sole purpose of acknowledging the transactions effected by this
Agreement, ▇▇▇▇▇ FARGO BANK, N.A., a national banking association, as Securities Intermediary and
Custodian (“Intermediary”).
RECITALS:
A. CMF CAPITAL COMPANY, LLC, a Delaware limited liability company (“Original Lender”)
made a loan to Pledgor in the original principal amount of SEVENTY-ONE MILLION AND 00/100
($71,000,000.00) (the “Loan”) pursuant to a Loan Agreement, dated November 3, 1998, between Pledgor
and Original Lender (the “Loan Agreement”).
B. The Loan is evidenced by that certain Promissory Note, dated as of November 3, 1998 (the
“Note”), from Pledgor to Original Lender.
C. The Loan and Note are secured by the Mortgage, executed by Pledgor in favor of Original
Lender granting to Original Lender, among other things, liens on the real properties described in
said Mortgage (collectively, the “Real Property”) and the Collateral Documents. The Loan is
further evidenced or secured by various other documents executed by Pledgor and others in favor of
Original Lender (together with the Collateral Documents, the Loan Agreement, the Note and the
Mortgage, the “Loan Documents”).
D. Original Lender assigned all of its right, title and interest in the Loan and the Loan
Documents to Pledgee.
E. Pursuant to the Loan Documents, Pledgor has requested that Pledgee release the liens of the
Mortgage and terminate the Collateral Documents upon Pledgor’s defeasance of the Loan.
F. Pursuant to the Loan Documents, it is a condition precedent to Pledgee’s obligation to
release the liens of the Mortgage and terminate the Collateral Documents that Pledgor grant a
security interest in the Pledged Collateral (as defined in the Security Agreement) to Pledgee to
secure the payment and performance in full when due of all amounts payable under the Loan
Documents.
G. Pledgor is the legal and beneficial owner of the securities listed in Exhibit A
hereto (collectively, the “Securities”), and, pursuant to the Loan Documents, and as a condition
precedent to Pledgee’s obligation to release the lien of the Mortgage and terminate the Collateral
Documents, Pledgor has granted to Pledgee, pursuant to a certain Defeasance Pledge and Security
Agreement, dated as of the date hereof, by and among Pledgor, Pledgee, Servicer and acknowledged by
Intermediary (the “Security Agreement”), a security interest in the Securities, certain other
collateral and the proceeds thereof to secure the payment and performance in full when due of all
amounts payable under the Loan Documents.
H. In connection with the Security Agreement, Pledgor, Pledgee, Intermediary and Servicer have
entered into the Defeasance Account Agreement, pursuant to which Intermediary has established and
will maintain an account to hold the Pledgor’s interest in the Securities and other collateral.
I. In connection with Pledgee’s release of the lien of the Mortgage and termination of the
Collateral Documents pursuant to the Loan Documents, Pledgor is required or permitted to transfer
and assign all obligations, rights and duties under and to the Note and the other Defeasance
Documents, together with its interest in the Pledged Collateral, to a successor entity established
or designated in accordance with the Loan Documents.
J. Successor Borrower has been established or designated to be the successor entity to assume
certain of Pledgor’s rights and obligations under the Defeasance Documents, and Servicer, acting on
behalf of Pledgee, has approved Successor Borrower to be the successor entity to assume certain of
Pledgor’s rights and obligations under the Defeasance Documents.
K. Pledgor desires to (i) obtain the release of the lien of the Mortgage and terminate the
Collateral Documents, (ii) transfer certain of its rights and obligations under the Defeasance
Documents to Successor Borrower and (iii) obtain a release of certain of its rights and obligations
under the Defeasance Documents and the other Loan Documents to the extent provided herein, and
Successor Borrower desires to assume certain of Pledgor’s rights and obligations under the
Defeasance Documents and acquire Pledgor’s right, title and interest in the Pledged Collateral.
NOW, THEREFORE, in consideration of the mutual covenants and promises of the parties hereto
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Section 1. Definitions.
Each capitalized term used and not defined herein shall have the meaning assigned to such term
in the Security Agreement.
Section 2. Assignment of Secured Obligations and Securities.
Pledgor hereby sells, transfers and assigns to Successor Borrower, effective as of the date
hereof, (a) the Secured Obligations including, without limitation, all obligations, rights
(including without limitation the right to prepay the Note, if any) and duties in, to and under,
and subject to the terms of, the Defeasance Documents and (b) all of Pledgor’s right, title and
interest in and to the Pledged Collateral, subject to the terms of the Defeasance Documents and to
the
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rights of Pledgee and the obligations of Intermediary pursuant to the Security Agreement and
the Defeasance Account Agreement.
Section 3. Assumption of Loan Obligations.
(a) Successor Borrower, for good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, hereby assumes, and agrees to be bound by and to perform: (1) each of the
Secured Obligations and all other covenants, agreements, representations and warranties of Pledgor
under the Defeasance Documents, first arising or accruing on or after the Closing Date, and (2)
each of the obligations, covenants, agreements, representations and warranties of Successor
Borrower contained herein (the failure to comply with Section 3(a)(1) or Section
3(a)(2) shall constitute an Event of Default); provided however, Successor
Borrower shall not assume any obligations (i) under Section 4 of the Security Agreement
(with respect to the Securities transferred to Successor Borrower on the date hereof), (ii) under
Section 6 of the Security Agreement, to the extent that such obligations have been fully
performed by Pledgor or parties other than Successor Borrower prior to the transfer of the
Securities to Successor Borrower, (iii) that may arise as a result of the Pledgor’s failure to
effect the initial perfection of Pledgee’s interest in the Pledged Collateral prior to the transfer
of the Pledged Collateral to Successor Borrower, (iv) that may arise as a result of any
misrepresentation or misstatement made by Pledgor in any of the Defeasance Documents or otherwise
made by Pledgor in connection with the defeasance transaction contemplated under this Agreement (v)
arising under the Note or other Loan Documents (to the extent that such Loan Documents are
incorporated in the Note), which (1) relate to the use or operation of the Real Property or (2)
conflict with any express covenants or obligations assumed by Successor Borrower under the other
Defeasance Documents or (vi) for any expenses that may be due and payable under the Note or the
Mortgage other than principal and interest due under the Note, unless such other costs or expenses
are specifically identified and expressly assumed by Successor Borrower herein; provided,
further, however, except as otherwise expressly provided in Section 3(b)
below, Successor Borrower shall be liable to Pledgee only to the extent of the Pledged Collateral,
and Pledgee shall have no recourse against, and Pledgee shall not enforce any monetary judgment
against, assets of Successor Borrower other than the Pledged Collateral, with respect to the
Secured Obligations. Except as set forth herein, including the prior provisions, nothing herein is
intended to limit or restrict Pledgee’s rights or remedies with respect to the Pledged Collateral.
(b) Notwithstanding the foregoing, Successor Borrower (but not its members or manager) shall
be personally liable for all claims, demands, liabilities, deficiencies, losses, damages,
judgments, costs, and expenses, including without limitation reasonable attorneys fees and costs of
collection incurred, suffered or paid by Pledgee as a result of:
(i) any representation, warranty or certification made by or on behalf of Successor
Borrower for the benefit of Pledgee in any Defeasance Document (or in any modification or
supplement thereto), or in any certificate, report, financial statement or other item
furnished to Pledgee in connection with this transaction having been false or misleading in
any material respect as of the time made or furnished;
(ii) the Pledged Collateral or any part thereof or interest therein becoming subject to
any security interest, pledge, covenant, lien, or other encumbrance whether junior or senior
to the interest of Pledgee as a result of actions of Successor Borrower;
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(iii) the Pledged Collateral or any part thereof or interest therein being sold,
assigned, transferred, conveyed or otherwise disposed of, or becoming the subject of any
attempted sale, assignment, transfer or conveyance, by Successor Borrower;
(iv) any of the Events of Default described in subparagraphs (vii), (viii), (ix), (x),
(xii) or (xiii) of Section 9(a) of the Security Agreement occurring as a result of
actions of Successor Borrower or circumstances relating to Successor Borrower;
(v) Successor Borrower’s failure at any time to be a Single Purpose Entity; or
(vi) the funds in the Pledged Collateral Account being insufficient to satisfy all
obligations then due under the Note or under any other Defeasance Documents (without taking
into account (a) reinvestment income or (b) failure by any Obligor to satisfy its
obligations under the Securities).
Successor Borrower’s assumption of the obligations of Pledgor as set forth above under the
Defeasance Documents other than the Note is limited to those obligations arising on and after the
date hereof. With respect to the Note, Successor Borrower expressly assumes liability for interest
accruing on the Loan from the first day of the interest accrual period in which the defeasance
contemplated herein occurs, which shall be paid from Pledged Collateral deposited by the Pledgor
into the Pledged Collateral Account in accordance with the provisions of the Defeasance Account
Agreement.
(c) Notwithstanding anything to the contrary set forth in Section 3(b), Pledgee shall
have no recourse for any claims, demands, liabilities, deficiencies, losses, damages, judgments,
costs and expenses, including, without limitation, legal fees and expenses, under Section
3(b) or otherwise under the Defeasance Documents against any assets (other than the Pledged
Collateral) of Successor Borrower that have been pledged to Pledgee pursuant to any other
defeasance transaction for any other defeased mortgage loan held by Pledgee until such transaction
has been paid in full.
(d) In addition to the rights of Pledgee under the Defeasance Documents, Successor Borrower
hereby grants to Pledgee and Servicer a power of attorney to file, at Successor Borrower’s cost,
any franchise or other administrative filings which may be required to maintain Successor
Borrower’s good standing and legal existence in the event Successor Borrower fails to do so and
such failure continues for thirty (30) days after written notice. This power of attorney is
coupled with an interest and, as such, is irrevocable for the term of this Agreement.
(e) Successor Borrower shall deliver to Pledgee, within thirty (30) days after written request
from Pledgee, certification signed by an officer of Successor Borrower or of Successor Borrower’s
managing member or general partner, as applicable, certifying that such officer is familiar with
the activities and operations of Successor Borrower and Successor Borrower’s affiliates and all
transactions entered into by Successor Borrower during the preceding twelve months (or since the
date of Successor Borrower’s formation, if Successor Borrower was formed during such preceding
twelve month period), and that, to such officer’s knowledge, Successor Borrower has conducted
itself as a Single Purpose Entity during such period, has filed all tax returns required to be
filed during such period and has paid all taxes due and payable during such period. If requested
by Pledgee, each such certification shall be accompanied by an original certificate of existence or
good standing issued by the Secretary of State of the jurisdiction of
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Successor Borrower’s formation dated not more than thirty (30) days prior to date of such
certification. In addition to any other remedies that Pledgee may have under the Defeasance
Documents, in the event of the failure of Successor Borrower to maintain its status as a Single
Purpose Entity in good standing, Successor Borrower’s failure to file all required tax returns and
pay all taxes that it owes or Successor Borrower’s failure to file all forms and documents required
to maintain its separate legal existence, in each case, which failure results from a material
violation of Successor Borrower’s Single Purpose Entity requirements continuing for thirty (30)
days after written notice, Successor Borrower hereby agrees to the assumption of the Loan by, and
the transfer of the Pledged Collateral to, a Single Purpose Entity designated by Pledgee and hereby
appoints Pledgee and Servicer as attorneys-in-fact with power of attorney to effect such transfer
and assumption, which power of attorney is coupled with an interest and, as such, is irrevocable
for the term of this Agreement.
Section 4. Acknowledgment of Pledgee.
Pledgee hereby consents to (a) and shall promptly release the Real Property from the lien of
the Mortgage, ALR and Financing Statements and terminate the Collateral Documents, (b) the transfer
of Pledgor’s rights in the Pledged Collateral and rights and obligations under the Defeasance
Documents to Successor Borrower and (c) the assumption in accordance with Section 3 of
Pledgor’s rights, title and interest in the Pledged Collateral and Pledgor’s rights and obligations
under the Defeasance Documents by Successor Borrower.
Section 5. Release of Pledgor.
Subject to satisfaction, or written waiver, of all conditions to defeasance set forth in the
Loan Documents and, if applicable, confirmation from each of the Rating Agencies that the
transactions contemplated by the Defeasance Documents will not result in a downgrade, qualification
or withdrawal of the current rating of any of the Certificates or a failure to satisfy the criteria
for defeasances established by each of the Rating Agencies, Pledgee hereby releases and discharges
Pledgor from all claims, liabilities and obligations under the Loan Documents and the Defeasance
Documents related to events first occurring or arising after the Closing Date, provided,
however, Pledgor shall not be released from liability for any loss or damages suffered, or
expenses incurred, by Pledgee, Intermediary or Successor Borrower as a result of or established
pursuant to a claim, liability or obligation:
(i) arising from Pledgor’s obligations under Sections 4, 5 or 6 of the Security
Agreement;
(ii) with respect to any representation, warranty or certification of Pledgor under the
Defeasance Documents or the Loan Documents or in any certificate, report, financial
statement or other item delivered by or on behalf of Pledgor in connection therewith that
proves to have been false or misleading in any material respect when made or delivered;
(iii) arising as a result of the transfer of, or creation and perfection of the first
priority lien on, the Pledged Collateral being deemed void or voidable for any reason
whatsoever or any other payment made by Pledgor in respect of amounts due under the Loan
Documents on or prior to the date hereof being recovered from Pledgee by Pledgor, its
creditors, or any other person for any reason whatsoever;
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(iv) for any other failure to pledge the Pledged Collateral to Pledgee or take any
action necessary to effect the initial first priority perfection of Pledgee’s security
interest therein or to effectively transfer the Pledged Collateral to Successor Borrower in
accordance with the Defeasance Documents;
(v) arising under the Hazardous Materials Indemnity Agreement, dated November 3, 1998,
among Pledgor, Original Lender, Winston Hotels, Inc. and ▇▇▇▇ Limited Partnership, or
similar instruments executed by Pledgor (or others) in favor of Original Lender or Pledgee,
or any other indemnity obligations or any other obligations in the Loan Documents and
Defeasance Documents that, by their terms, survive the release of the lien of the Mortgage;
or
(vi) arising as a result of an Event of Default under the Security Agreement that
results from any circumstances relating to Pledgor, or actions or inactions of Pledgor,
included in subsections (ii) through (vi) of Section 9(a) of the Security Agreement.
Without limiting any other remedies Pledgee may have, upon any Event of Default arising under the
Defeasance Documents or the Loan Documents from any breach, act or omission of Pledgor prior to the
date hereof, Pledgee shall be entitled to enforce all of its remedies set forth in the Defeasance
Documents and the Loan Documents against Pledgor. Except as expressly set forth in this Agreement,
Pledgee hereby releases Pledgor from its obligations under the Loan Documents and the Defeasance
Documents. Pledgee hereby further authorizes and directs Pledgor to file a release or termination
of any UCC financing statement filed in connection with the Loan reflecting Pledgor as debtor and
Pledgee or Original Lender as secured party. Pledgor agrees to file any such release or
termination at its expense.
Section 6. Release of Pledgee and Servicer.
Pledgor hereby covenants and agrees that: (i) from and after the date hereof, Pledgee and
Servicer may deal solely with Successor Borrower in all matters relating to the Loan and (ii)
Pledgee and Servicer have no further duty or obligation of any nature relating to the Loan, the
Loan Documents or the Defeasance Documents to Pledgor. The Pledgor hereby releases Pledgee and
Servicer, and each of their predecessors in interest, together with all officers, directors,
employees and agents of each of the foregoing, from all claims, causes of action and liabilities
relating directly or indirectly to the Loan, the Real Property, the Loan Documents and the closing
of the defeasance transaction contemplated by the Defeasance Documents, arising on or prior to the
date hereof, including any and all claims arising from or relating to negotiations, demands,
requests or exercise of remedies in connection with the Loan and the closing of the defeasance
transaction contemplated by the Defeasance Documents.
Section 7. Representations and Warranties.
(a) Pledgor represents and warrants to the other parties hereto that, as of the date hereof:
(i) except as provided in the Modification, Waiver and Consent dated as of the date
hereof by and between Pledgor and Pledgee, all principal, interest and other amounts due and
payable on or before the date hereof under the Note and the other Defeasance Documents and
Loan Documents have been paid;
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(ii) no non-monetary default has occurred and is continuing under any of the Defeasance
Documents or Loan Documents beyond any applicable grace or notice period;
(iii) the fair market value of the Real Property is greater than the face amount of the
Securities;
(iv) Pledgor has not incurred any indebtedness other than the Loan;
(v) the pledge of the Securities to Pledgee and transfer of the Securities to Successor
Borrower are not done in contemplation of insolvency or bankruptcy or with an intent to
hinder, delay or defraud any of Pledgor’s creditors;
(vi) Pledgor is not insolvent immediately before signing this Agreement and is not
being rendered insolvent by the pledge of the Securities to Pledgee and transfer of the
Securities to Successor Borrower;
(vii) the assets owned by Pledgor immediately after giving effect to the pledge of the
Securities to Pledgee and transfer of the Securities to Successor Borrower represent an
amount of capital that is not unreasonably small for the business in which Pledgor is
engaged, and Pledgor does not intend to engage in any other business for which such capital
would be unreasonably small;
(viii) at the time of the pledge of the Securities to Pledgee and transfer of the
Securities to Successor Borrower, Pledgor does not intend to, or believe that it will, incur
debts that would be beyond its ability to pay as such debts mature;
(ix) the proceeds of the Securities (without regard to reinvestment income and assuming
no default by any obligor under the Securities) will be sufficient to make all payments
required under the Defeasance Documents, including all amounts required under Section
4(f) of the Defeasance Account Agreement; and
(x) the Loan Documents do not contain provisions requiring Pledgor to make any
scheduled payments that by their terms would be payable on or after the date of the
defeasance transaction contemplated herein, other than scheduled payments of principal and
interest under the Note, including annual surveillance fees of rating agencies or servicing
or trustees fees with respect to securitization of the Loan, except such payments as have
been specifically identified by Pledgor and either (a) expressly assumed by Successor
Borrower under the Defeasance Documents, or (b) paid in full in advance by Pledgor in
connection with the closing of the defeasance transaction contemplated herein.
(b) Successor Borrower, relying on the Accountant’s Letter, represents and warrants to the
other parties hereto, and hereby covenants for the benefit of such parties, that the proceeds of
the Securities (without regard to reinvestment income and assuming no default by any obligor under
the Securities) will be sufficient to make remaining scheduled payments of interest and principal
as required under the Note, including payment of the Note in full on the Maturity Date.
(c) Successor Borrower also represents and warrants to the other parties that:
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(i) Successor Borrower is a limited liability company, and is and shall be duly
organized, validly existing and in good standing under the laws of the state of Delaware.
Successor Borrower has all requisite power and authority to carry on its business as now
conducted and as proposed to be conducted, and to enter into and perform its obligations
under this Agreement and the other Defeasance Documents;
(ii) the execution and delivery of this Agreement, the assumption of the Pledgor’s
obligations under the Security Agreement, and performance of all of Successor Borrower’s
obligations thereunder have been duly authorized by all necessary and appropriate action of
Successor Borrower;
(iii) no consent or approval of any person, entity, or governmental authority is
required with respect to the execution and delivery of this Agreement and the Defeasance
Account Agreement by Successor Borrower or the consummation by Successor Borrower of the
transactions contemplated thereby or the performance by Successor Borrower of its
obligations under this Agreement and the other Defeasance Documents, except such consents or
approvals as have already been obtained;
(iv) this Agreement, the Security Agreement and the Defeasance Account Agreement are
the legal, valid and binding obligations of Successor Borrower, enforceable against
Successor Borrower in accordance with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws of general applicability affecting the enforcement of creditors’ rights;
(v) Successor Borrower has not changed its name since its formation; Successor Borrower
shall not change its name or change its jurisdiction of organization until (A) it has given
Pledgee not less than 30 days’ prior written notice of its intention to do so, clearly
describing the new location, name or jurisdiction, and (B) it has provided Pledgee with any
information regarding the new location, name or jurisdiction of formation as Pledgee may
request; if Successor Borrower intends to change its name or change its jurisdiction of
organization, Successor Borrower shall cooperate with Pledgee in taking all action required
by Pledgee to maintain perfection, priority and validity of the lien of Pledgee in the
Pledged Collateral granted by the Security Agreement;
(vi) Successor Borrower has no notice or knowledge of any adverse claim, lien or
encumbrance with respect to the Pledged Collateral;
(vii) Successor Borrower is, has been since the date of its formation, and shall at all
times continue to be, a Single Purpose Entity;
(viii) Successor Borrower shall not transfer, pledge or encumber, or permit to be
transferred, pledged or encumbered any managing membership interest in Successor Borrower,
more than a 49%, in the aggregate, nonmanaging membership interest in Successor Borrower, or
more than a 49%, in the aggregate, indirect interest in Successor Borrower without Rating
Agency confirmation;
(ix) Successor Borrower is not insolvent immediately before signing this Agreement;
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(x) at the time of the pledge of the Securities to Pledgee and transfer of the
Securities to Successor Borrower, Successor Borrower does not intend to, or believe that it
will, incur debts that would be beyond its ability to pay as such debts mature; and
(xi) Successor Borrower shall deliver to Servicer and Intermediary an executed Internal
Revenue Service Form W-9 within a reasonable time after the Closing Date.
(d) Intermediary hereby acknowledges and confirms that any fees and expenses related to the
Default Permitted Investment or wire transfers from the Pledged Collateral Account to Successor
Borrower or to Servicer are included in the fees already paid to Intermediary.
Section 8. Conditions to Defeasance.
Subject to the Modification, Waiver and Consent of even date herewith between Pledgor and
Pledgee (the “Waiver”), Pledgor represents, warrants and covenants that it has satisfied the
conditions set forth in the defeasance provisions of the Loan Documents to effectuate the release
of the Real Property from the lien of the Mortgage and the defeasance of the Loan on the date
hereof, or such conditions have been waived in writing by Pledgee. Pledgor will deliver on the date
hereof a Certificate of Borrower in the form attached hereto as Exhibit B, and Pledgor
acknowledges that Successor Borrower will rely on such Certificate of Borrower and on the
representations set forth herein as a condition to entering into this Agreement. Pledgor further
acknowledges and agrees that all proceeds from the Pledged Collateral in excess of amounts due
under the Defeasance Documents will be used to pay the reasonable expenses of Successor Borrower in
making the payments due under the Defeasance Documents and managing its obligations under the
Defeasance Documents and any balance will be the sole property of Successor Borrower.
Section 9. Modifications.
This Agreement may not be amended, modified or otherwise changed in any manner, except by a
writing executed by all of the parties to this Agreement. Notwithstanding the foregoing, from and
after the date hereof, any new agreement pertaining to the Loan and any amendment, modification or
extension of the Defeasance Documents may be made solely by Successor Borrower and Pledgee and
shall not require the consent or execution of Pledgor. No such changes will increase Pledgor’s
obligations under the Loan Documents and the Defeasance Documents that continue after the date of
this Agreement as set forth in Section 5 above.
Section 10. Approvals.
Pledgor and Successor Borrower each hereby represents and warrants to Pledgee, with respect to
itself, that such entity has obtained any and all third-party approvals and consents required to be
obtained in connection with the execution and delivery of this Agreement and the performance of
such entity’s obligations hereunder.
Section 11. Successors and Assigns.
This Agreement applies to, inures to the benefit of, and binds all parties hereto, their
heirs, legatees, devisees, administrators, executors, and permitted successors and assigns.
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Section 12. GOVERNING LAW; VENUE.
THIS AGREEMENT AND ALL OTHER RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, INCLUDING THE UCC AND INCLUDING NEW YORK GENERAL OBLIGATIONS LAW SECTIONS 5-1401 AND
5-1402 BUT OTHERWISE WITHOUT REGARD TO LAWS OF THE STATE OF NEW YORK CONCERNING CONFLICTS OF LAWS
OR CHOICE OF FORUM.
PLEDGOR, PLEDGEE, SUCCESSOR BORROWER, SERVICER AND INTERMEDIARY HEREBY IRREVOCABLY SUBMIT TO
PERSONAL JURISDICTION IN THE STATE OF NEW YORK AND TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW
YORK STATE OR FEDERAL COURT SITTING IN THE CITY OF NEW YORK OVER ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT. JURISDICTION AND VENUE OF ANY ACTION BROUGHT TO
ENFORCE THIS AGREEMENT OR ANY OTHER DEFEASANCE DOCUMENT OR ANY ACTION RELATING TO THE TRANSACTIONS
CONTEMPLATED HEREBY OR THE RELATIONSHIPS CREATED BY OR UNDER THE DEFEASANCE DOCUMENTS (IN EACH
CASE, AN “ACTION”) SHALL, AT THE ELECTION OF PLEDGEE, BE IN (AND IF ANY ACTION IS ORIGINALLY
BROUGHT IN ANOTHER VENUE, THE ACTION SHALL AT THE ELECTION OF PLEDGEE BE TRANSFERRED TO) A STATE OR
FEDERAL COURT OF APPROPRIATE JURISDICTION LOCATED IN THE STATE OF NEW YORK. PLEDGOR, PLEDGEE,
SUCCESSOR BORROWER, SERVICER AND INTERMEDIARY HEREBY CONSENT AND SUBMIT TO THE PERSONAL
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF FEDERAL COURTS LOCATED IN THE STATE OF
NEW YORK IN CONNECTION WITH ANY ACTION AND HEREBY WAIVE ANY AND ALL PERSONAL RIGHTS UNDER THE LAWS
OF ANY OTHER STATE TO OBJECT TO JURISDICTION WITHIN SUCH STATE FOR PURPOSES OF ANY ACTION.
PLEDGOR, PLEDGEE, SUCCESSOR BORROWER, SERVICER AND INTERMEDIARY HEREBY WAIVE AND AGREE NOT TO
ASSERT, AS A DEFENSE TO ANY ACTION OR A MOTION TO TRANSFER VENUE OF ANY ACTION: (I) ANY CLAIM THAT
SUCH PARTY IS NOT SUBJECT TO SUCH JURISDICTION; (II) ANY CLAIM THAT ANY ACTION MAY NOT BE BROUGHT
AGAINST IT OR IS NOT MAINTAINABLE IN THOSE COURTS OR THAT THIS AGREEMENT MAY NOT BE ENFORCED IN OR
BY THOSE COURTS, OR THAT SUCH PARTY IS EXEMPT OR IMMUNE FROM EXECUTION; (III) THAT THE ACTION IS
BROUGHT IN AN INCONVENIENT FORUM; OR (IV) THAT THE VENUE FOR THE ACTION IS IN ANY WAY IMPROPER.
Section 13. Entire Agreement.
This Agreement and the other agreements referred to herein constitute all of the agreements
among the parties relating to the matters set forth herein and supersede all other prior or
concurrent oral or written letters, agreements or understandings with respect to the matters set
forth herein.
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Section 14. Full Force and Effect.
Except as modified by this Agreement and the other Defeasance Documents, the Loan Documents
shall remain unchanged and in full force and effect.
Section 15. Counterparts.
This Agreement may be signed in any number of counterparts by the parties hereto, all of which
taken together shall constitute one and the same instrument.
Section 16. Notices.
All notices or other communications hereunder shall be given in accordance with Section
14 of the Security Agreement, and shall be sent to Successor Borrower at the following
addresses:
| Successor Borrower: | ▇▇ ▇▇▇▇▇▇▇ Holdings, LLC | |||
| c/o Chatham Financial Corp. | ||||
| ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇ | ||||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
Section 17. Waiver of Trial by Jury
PLEDGOR, PLEDGEE, SUCCESSOR BORROWER, SERVICER AND INTERMEDIARY EACH HEREBY AGREES NOT TO
ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY
FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER MAY EXIST WITH REGARD TO THIS
AGREEMENT OR ANY DOCUMENT RELATED THERETO, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN
CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY
PLEDGOR, PLEDGEE, SUCCESSOR BORROWER, SERVICER AND INTERMEDIARY, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH A RIGHT TO TRIAL BY JURY WOULD OTHERWISE
ACCRUE. PLEDGOR, PLEDGEE, SUCCESSOR BORROWER, SERVICER AND INTERMEDIARY EACH IS HEREBY AUTHORIZED
TO FILE A COPY OF THIS SECTION 17 IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER
BY EACH OTHER.
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11
IN WITNESS WHEREOF, each of the parties hereto has caused this Defeasance Assignment,
Assumption and Release Agreement to be executed and delivered by its duly authorized representative
effective as of the date first above written.
| PLEDGOR: | |||||||
| WINSTON SPE LLC, a Virginia limited liability company | |||||||
| By: | Winston Manager Corporation, a Virginia corporation, its managing member |
||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ | ||||||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇ | ||||||
| Title: | Vice President | ||||||
| SUCCESSOR BORROWER: | |||||||
| ▇▇ ▇▇▇▇▇▇▇ HOLDINGS, LLC, | |||||||
| a Delaware limited liability company | |||||||
| By: | ▇▇ ▇▇▇▇▇▇▇, Inc., a Delaware corporation | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||||||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||||||
| Title: | President | ||||||
| PLEDGEE: | ||||||||
| ▇▇▇▇▇ FARGO BANK, N.A. (f/k/a Norwest Bank Minnesota, National Association), as trustee for the registered holders of DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through Certificates, Series 1999-CG1 | ||||||||
| By: | Wachovia Bank, National Association, a national banking association, as successor to GE Capital Services, Inc., as master servicer | |||||||
| By: | /s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||||||
| Name: | D. ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||||||
| Title: | Vice President | |||||||
| SERVICER: | ||||||||
| WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as successor to GE Capital Loan Services, Inc., as master servicer | ||||||||
| By: | /s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||||||
| Name: | D. ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||||||
| Title: | Vice President | |||||||
▇▇▇▇▇ Fargo Bank, N.A. acting in its capacity as Securities Intermediary and Custodian with
respect to the Pledged Collateral, hereby acknowledges the terms and conditions of, and the
transactions effected by, this Agreement.
| ▇▇▇▇▇ FARGO BANK, N.A., | |||||
| a national banking association | |||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||
| Title: | Vice President | ||||
EXHIBIT A
Securities Schedule
EXHIBIT B
Form of Certificate of Borrower