Exhibit 99.5
Upon recordation, return to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
================================================================================
LOAN ASSUMPTION
AND
SUBSTITUTION AGREEMENT
================================================================================
Date: As of February 10, 2006
=======================
Exhibit 99.5
LOAN ASSUMPTION AND SUBSTITUTION AGREEMENT
THIS LOAN ASSUMPTION AND SUBSTITUTION AGREEMENT (this "Agreement") is
made and entered into as of February 10, 2006 by and among BEHRINGER HARVARD
▇▇▇▇▇▇▇ PLAZA LP, a Texas limited partnership, having an address of ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Assuming Borrower"), BEHRINGER
HARVARD REIT I, INC., a Maryland corporation, having an address of ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Assuming Indemnitor"), ▇▇▇▇▇▇▇ PLAZA
ASSOCIATES, L.P., a Delaware limited partnership, having an address at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Original Borrower"), in
favor of LASALLE BANK NATIONAL ASSOCIATION, a national banking association, as
Trustee and REMIC Administrator for Banc of America Commercial Mortgage, Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-6, whose mailing
address is c/o Bank of America, N.A., Capital Markets Servicing Group, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, Mail Code: NC1-026-06-1, Charlotte, North Carolina
28255 ("Lender") and BRANDYWINE ACQUISITION PARTNERS, L.P., a Delaware limited
partnership, formerly known as ▇▇▇▇▇▇▇▇ Properties Acquisition Partners, L.P.,
having an address of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (individually and collectively, if more than one, "Original
Indemnitor").
Recitals
A. Bank of America, N.A., a national banking association (the
"Original Lender"), pursuant to the Loan Documents (as hereinafter defined) made
a loan to Original Borrower in the original principal amount of $114,200,000.00
(the "Loan"). The Loan is evidenced and secured by the following documents
executed in favor of Original Lender by Original Borrower:
(1) Promissory Note dated March 22, 2005, payable by Original
Borrower to Original Lender in the original principal amount of
$114,200,000.00 (the "Note");
(2) Loan Agreement of even date with the Note by and between
Original Borrower and Original Lender as amended pursuant to
that certain Omnibus Amendment to the Loan Agreement and
Ancillary Loan Documents dated as of December __, 2005 (the
"Loan Agreement");
(3) Deed of Trust, Assignment of Leases and Rents and Security
Agreement of even date with the Note, granted by Original
Borrower to PRLAP, INC., as Trustee for the benefit of Mortgage
Electronic Registration Systems, Inc., as nominee of Original
Lender ("MERS"), recorded as Document No. D205081007 in the real
estate records of Tarrant County, Texas ("Recorder's Office")
(the "Mortgage");
(4) Assignment of Leases and Rents of even date with the Note
granted by Original Borrower to Original ▇▇▇▇▇▇, recorded as
Document No. D205081008, in the Recorder's Office (the
"Assignment");
(5) UCC-1 financing statements with Original Borrower as debtor and
MERS as secured party, filed with the Recorder's Office as
Document No. D205081009 and with the Secretary of State of the
State of Delaware as Instrument No. 51032136 (collectively the
"Financing Statements"); and
(6) Tax and Insurance Payment Guaranty by and between ▇▇▇▇▇▇▇▇
Properties Acquisition Partners, L.P., a Delaware limited
liability company predecessor in interest to Brandywine
Acquisition Partners LP, a Delaware limited partnership
("Original Indemnitor") and Original Lender of even date with
the Note (the "Guaranty").
The foregoing documents, together with any and all other documents executed by
Original Borrower and/or Original Indemnitor in connection with the Loan, are
collectively called the "Loan Documents." As used herein, the term "Assuming
Obligors" shall mean Assuming Borrower and Assuming Indemnitor; the term
"Original Obligors" shall mean Original Borrower and Original Indemnitor.
B. Original Lender assigned, sold and transferred its interest in
the Loan and all Loan Documents to Lender, and ▇▇▇▇▇▇ is the
current holder of all of Original Lender's interest in the Loan and Loan
Documents.
C. Original Borrower continues to be the owner of the Property (as
defined below).
▇. ▇▇▇▇▇▇▇▇ to that certain Purchase and Sale Agreement dated
January 13, 2006 (as amended and as assigned to Assuming Borrower, the "Sales
Agreement"), Original Borrower agreed to sell, and Assuming Borrower agreed to
purchase, that certain real property more particularly described on Exhibit A
attached hereto, together with all other property encumbered by the Mortgage and
the other Loan Documents (collectively, the "Property"). The Sales Agreement
requires that Assuming Borrower assume the Loan and the obligations of Original
Borrower under the Loan Documents, and conditions the closing of the sale of the
Property upon ▇▇▇▇▇▇'s consent to the sale of the Property and the assumption of
the Loan.
E. Pursuant to Sections 7.5 and 7.6 of the Loan Agreement, Original
Borrower has the right to sell the Property to a third party subject to the
satisfaction of certain conditions specified therein. Original Borrower and
Assuming Borrower have requested that Lender consent to the sale, conveyance,
assignment and transfer of the Property by Original Borrower to Assuming
Borrower, subject to the Loan Agreement and the other Loan Documents, and to the
assumption by Assuming Borrower of the Loan and the assumption by Assuming
Obligors of the obligations of Original Obligors under the Loan Documents.
▇. ▇▇▇▇▇▇ is willing to consent to the sale, conveyance, assignment
and transfer of the Property by Original Borrower to Assuming Borrower, subject
to the Loan Agreement and the other Loan Documents, and to the assumption by
Assuming Borrower of the Loan and the assumption by Assuming Obligors of the
obligations of Original Obligors under the Loan Documents, on and subject to the
terms and conditions set forth in this Agreement and in the Loan Agreement and
in the other Loan Documents.
-2-
▇. ▇▇▇▇▇▇, Original Obligors and Assuming Obligors by their
respective executions hereof, evidence their consent to the transfer of the
Property to Assuming Borrower and the modification and assumption of the Loan
Documents as hereinafter set forth.
STATEMENT OF AGREEMENT
In consideration of the mutual covenants and agreements set forth
herein, the parties hereto hereby agree as follows:
1. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF ORIGINAL OBLIGORS,
RELEASE OF LENDER.
(a) Original Obligors hereby represent to Lender, as of the date
hereof, that (i) simultaneously with the execution and delivery hereof, Original
Borrower has conveyed and transferred all of the Property to Assuming Borrower;
(ii) simultaneously with the execution and delivery hereof, Original Borrower
has assigned and transferred to Assuming Borrower all leases, tenancies,
security deposits and prorated rents of the Property in effect as of the date
hereof ("LEASES") retaining no rights therein or thereto; (iii) Original
Borrower has not received a mortgage from Assuming Borrower encumbering the
Property to secure the payment of any sums due Original Borrower or obligations
to be performed by Assuming Borrower; (iv) the Mortgage is a valid first lien on
the Property for the remaining unpaid principal amount of the Loan and all other
amounts as stated therein; (v) there are no defaults by them under the
provisions of the Loan Documents; (vi) to the best of Original Obligor's
knowledge, 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 Loan Documents; (vii) all provisions of the Loan
Documents are in full force and effect, except as modified herein; (viii) 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 (ix) to the best of Original Obligor's knowledge, the
representations and warranties made by Original Obligors in the Loan Documents
or in any other documents or instruments delivered in connection with the Loan
Documents, including, without limitation, all representations and warranties
with respect to environmental matters, 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 Obligors hereby covenant and agree that: (i) from and
after the date hereof, Lender may deal solely with Assuming Obligors in all
matters relating to the Loan, the Loan Documents, and the Property; (ii) they
shall not at any time hereafter take (x) a mortgage or other lien encumbering
the Property or (y) a pledge of direct or indirect interests in Assuming
Borrower from Assuming Obligors to secure any sums to be paid or obligations to
be performed by Assuming Obligors so long as any portion of the Loan remains
unpaid; and (iii) Lender has no further duty or obligation of any nature
relating to this Loan or the Loan Documents to Original Obligors.
Original Obligors understand and intend that Lender shall rely on the
representations, warranties and covenants contained herein.
-3-
2. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF ASSUMING OBLIGORS.
(a) Assuming Obligors hereby represent and warrant to Lender, as of
the date hereof, that: (i) simultaneously with the execution and delivery
hereof, Assuming Borrower has purchased from Original Borrower all of the
Property, and has accepted Original Borrower's assignment of the Leases; (ii)
Assuming Borrower has assumed the performance of Original Borrower's obligations
under the Leases; (iii) Assuming Borrower has not granted to Original Borrower
(x) a mortgage or other lien upon the Property or (y) a pledge of direct or
indirect interests in the Assuming Borrower to secure any debt or obligations
owed to Original Borrower; (iv) to the knowledge of Assuming Obligors, no
Default (each as defined in the Loan Agreement) has occurred or is continuing;
(v) to the knowledge of Assuming Obligors, all provisions of the Loan Documents
are in full force and effect; (vi) to the knowledge of Assuming Obligors, the
representations and warranties made in the Loan Documents or in any other
documents or instruments delivered in connection with the Loan Documents (other
than those representations and warranties relating to the organizational aspects
of Original Borrower and Original Indemnitor and those representations and
warranties relating to the tenancy of the Property existing as of the date of
the Loan Documents, March 22, 2005 (collectively, the "EXCEPTED
REPRESENTATIONS") are true, on and as of the date hereof; and (vii) Assuming
Obligors have reviewed all of the Loan Documents and consent to the terms
thereof.
(b) Assuming Borrower shall not hereafter, without ▇▇▇▇▇▇'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. Assuming Obligors have no
knowledge that any of the representations and warranties made by the Original
Obligors herein are untrue, incomplete, or incorrect.
(c) Assuming Indemnitor hereby represents and warrants to the Lender
that Assuming Indemnitor is an affiliate of the Assuming Borrower and Assuming
Indemnitor will derive substantial economic benefit from the Lender's agreement
to consent to the transaction described herein. Assuming Indemnitor hereby
acknowledges and agrees that Assuming Indemnitor has executed this Agreement and
agreed to be bound by the covenants and agreements set forth herein in order to
induce Lender to consent to the transaction described herein. Accordingly,
Assuming Indemnitor acknowledges that ▇▇▇▇▇▇ would not consent to the
transaction described herein without the execution and delivery by Assuming
Indemnitor of this Agreement.
Assuming Obligors understand and intend that Lender shall rely on the
representations, warranties and covenants contained herein.
3. ASSUMPTION OF OBLIGATIONS OF BORROWER. Assuming Borrower hereby
assumes the Debt (as defined in the Loan Agreement) and Assuming Borrower hereby
assumes all the other respective past, present and future obligations of
Original Borrower of every type and nature set forth in the Loan Documents in
accordance with their respective terms and conditions, as the same may be
modified by this Agreement. Assuming ▇▇▇▇▇▇▇▇ further agrees to abide by and be
bound by all of the terms of the Loan Documents applicable to the "BORROWER", in
accordance with their respective terms and conditions, including but not limited
to, the covenants, assurances and indemnifications therein, all as though each
of the Loan
-4-
Documents had been made, executed, and delivered by Assuming Borrower. Assuming
▇▇▇▇▇▇▇▇ agrees to pay when and as due all sums due under the Note and agrees to
pay, perform, and discharge each and every other obligation of payment and
performance of the "BORROWER" pursuant to and as set forth in the Loan Documents
at the time, in the manner and otherwise in all respects as therein provided.
Assuming 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 Assuming Borrower to avoid or delay
timely performance of its obligations under the Loan Documents, as applicable;
(ii) to the knowledge of Assuming Borrower after due inquiry, 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.
4. ASSUMPTION OF THE OBLIGATIONS OF THE INDEMNITOR UNDER THE
INDEMNITY AGREEMENT AND ENVIRONMENTAL INDEMNITY AGREEMENT; SUBSTITUTION OF
INDEMNITOR. From and after the date of this Agreement, Assuming Indemnitor shall
be obligated and responsible for the performance of each and all of the
obligations and agreements of the "INDEMNITOR", "GUARANTOR" and/or "PRINCIPAL"
(collectively referred to herein as "INDEMNITOR") under the Guaranty to which
Original Indemnitor is a party, and Assuming Indemnitor shall be liable and
responsible for each and all of the liabilities of Indemnitor thereunder, and
shall be substituted in lieu of and in place of Original Indemnitor, as fully
and completely as if Assuming Indemnitor had originally executed and delivered
such Guaranty as Indemnitor thereunder, including, without limitation, all of
those obligations, agreements and liabilities which would have, but for the
provisions of this Substitution Agreement, been the obligations, agreements and
liabilities of Original Indemnitor, without regard to when such obligations,
agreements and liabilities arise, accrue or have arisen or accrued, and without
regard to the Indemnitor then responsible or liable therefor at the time of such
accrual. From and after the date hereof, Assuming Indemnitor further agrees to
abide by and be bound by all of the terms of the Guaranty having reference to
Indemnitor, all as though the Guaranty to which Original Indemnitor is a party
had been made, executed, and delivered by Assuming Indemnitor as Indemnitor.
From and after the date hereof, Assuming Indemnitor hereby agrees to pay,
perform, and discharge each and every obligation of payment and performance of
Indemnitor under, pursuant to and as set forth in the Guaranty at the time, in
the manner and otherwise in all respects as therein provided.
5. NOTICES TO INDEMNITOR. Without amending, modifying or otherwise
affecting the provisions of the Loan Documents except as expressly set forth
herein, Lender shall, from and after the date of this Agreement, deliver any
notices to Indemnitor which are required to be delivered pursuant to the Loan
Documents, or are otherwise delivered by the Lender thereunder at ▇▇▇▇▇▇'s sole
discretion, to Assuming Indemnitor's address set forth above.
6. CONSENT TO CONVEYANCE, ASSUMPTION AND SUBSTITUTION OF
INDEMNITOR; RELEASE OF ORIGINAL OBLIGORS. Subject to the terms and conditions
set forth in this Agreement, Lender consents to: (a) the sale, conveyance,
assignment and transfer of the Property by Original Borrower to Assuming
Borrower, subject to the Loan Agreement and the other Loan Documents; (b) the
assumption by Assuming Borrower of the Loan and the obligations of Original
Borrower under the Loan Documents; and (c) the assumption by Assuming Indemnitor
of the obligations
-5-
of the Original Indemnitor under the Loan Documents to which Original Indemnitor
is a party. The Original Obligors are hereby released from any liability to
Lender under any and all of the Loan Documents arising or first accruing
subsequent to the transfer of the Property to Assuming Borrower and the
assumption by Assuming Borrower and Assuming Indemnitor hereunder; provided,
however, Original Indemnitor shall not be liable for (i) the payment of Taxes
accruing after January 1, 2006 and Assuming Indemnitor shall be liable for such
Taxes and (ii) the payment of Insurance Premiums after the date hereof and
Assuming Indemnitor shall be liable for such Insurance Premiums. ▇▇▇▇▇▇'s
consent to such transfer and assumption shall, however, not constitute its
consent to any subsequent transfers of the Property. Original Obligors hereby
acknowledge and agree that the foregoing release shall not be construed to
release Original Obligors from any personal liability under the Note or any of
the other Loan Documents for any acts or events occurring or obligations arising
prior to or simultaneously with the closing of the transaction described herein.
7. RELEASE AND COVENANT NOT TO SUE. Original Obligors and Assuming
Obligors, on behalf of themselves and their heirs, successors and assigns,
hereby release and forever discharge Lender, any trustee of the Loan, any
servicer of the Loan, each of their respective predecessors in interest and
successors and assigns, together with the officers, directors, partners,
employees, investors, certificate holders and agents 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 Original Obligors and Assuming Obligors now have by
reason of any cause, matter, or thing through and including the date hereof,
including, without limitation, matters 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; or (e) the sale, conveyance,
assignment and transfer of the Property. Original Obligors and Assuming
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, or related claims or causes of
action.
8. 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 Original Borrower prior to the date of
execution of this Agreement. The parties acknowledge and agree that, as of the
date of this Agreement, the principal balance of the Note is $114,200,000.00 and
interest on the Note is paid to February 1, 2006. Assuming ▇▇▇▇▇▇▇▇ acknowledges
and agrees that the Loan, as evidenced and secured by the Loan Documents, is a
valid and existing indebtedness payable by Assuming Borrower to Lender. The
parties acknowledge that Lender is holding the following Reserve Accounts (as
defined in the Loan Agreement): None.
The parties acknowledge and agree that ▇▇▇▇▇▇ shall continue to hold the Reserve
Accounts for the benefit of Assuming 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
-6-
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. Assuming ▇▇▇▇▇▇▇▇ acknowledge and agree that, to the best of
their knowledge, the funds listed above constitute all of the reserve and escrow
funds currently held by Lender with respect to the Loan and authorize such funds
to be transferred to an account controlled by Lender for the benefit of ▇▇▇▇▇▇
and Assuming Borrower.
The parties further acknowledge and agree that Lender shall direct the Lockbox
Bank (as hereinafter defined) to hold and manage the accounts established
pursuant to the Lockbox Agreement (as hereinafter defined) for the benefit of
Assuming Borrower in accordance with the terms thereof. Lender shall manage the
Cash Management Account established pursuant to the Loan Agreement. Original
Obligors covenant and agree that the original lockbox bank, Mellon Bank, N.A.
("ORIGINAL LOCKBOX BANK") and Lender Parties have no further duty or obligation
of any nature to Original Obligors relating to such accounts with respect to the
original lockbox agreement. Original Obligors hereby release and forever
discharge the Original Lockbox Bank and Lender from any obligations to Original
Obligors relating to such accounts.
9. MODIFICATIONS OF THE LOAN DOCUMENTS. The Mortgage is hereby
modified as follows:
(a) The introductory paragraph of the Loan Agreement (and each other
Loan Document, as applicable) is hereby modified to substitute the name (as
listed above) of Lender, as Lender in place of ▇▇▇▇▇▇'s name set forth therein.
(b) Section 16.1 of the Loan Agreement is hereby deleted in its
entirety and the following is hereby substituted in its stead:
"16.1. NOTICES. All notices, consents, approvals and requests required
or permitted hereunder or under any other Loan Document shall be given in
writing and shall be effective for all purposes if hand delivered or sent by (a)
certified or registered United States mail, postage prepaid, return receipt
requested, (b) expedited prepaid overnight delivery service, either commercial
or United States Postal Service, with proof of attempted delivery, or by (c)
telecopier (with answer back acknowledged provided an additional notice is given
pursuant to subsection (b) above), addressed as follows (or at such other
address and Person as shall be designated from time to time by any party hereto,
as the case may be, in a written notice to the other parties hereto in the
manner provided for in this Section):
If to Borrower: Behringer Harvard ▇▇▇▇▇▇▇ Plaza LP
c/o Behringer Harvard Funds
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
-7-
With a copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
If to Lender: Bank of America, N.A.
Capital Markets Servicing Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Servicing Manager
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
A notice shall be deemed to have been given: in the case of hand delivery, at
the time of delivery; in the case of registered or certified mail, when
delivered or the first attempted delivery on a Business Day; or in the case of
expedited prepaid delivery and telecopy, upon the first attempted delivery on a
Business Day.
(c) Section 1.1 of the Loan Agreement is amended as follows:
(i) The definition of "LOCKBOX AGREEMENT" is deleted in its
entirety and the following is substituted in its stead:
"LOCKBOX AGREEMENT" shall mean that certain Blocked Account
Control Agreement by and among Borrower, Lender and Lockbox
Bank, as the same may be amended, restated, replaced,
supplemented or otherwise modified form time to time, relating
to the operating and maintenance of, and application of funds
in, the Lockbox Account.
(ii) The definition of "LOCKBOX BANK" is deleted in its
entirety and the following is substituted in its stead:
"LOCKBOX BANK" shall mean JPMorgan Chase Bank, N.A. or any
successor Eligible Institution approved or appointed by ▇▇▇▇▇▇
acting as Lockbox Bank under the Lockbox Agreement.
-8-
(iii) The definition of "MANAGER" is deleted in its entirety
and the following is substituted in its stead:
(iv) The defined terms "BRT", "BAP", ""MERGER SUB I", "BOP",
"MERGER SUB II", and "BOTTOM GUARANTY" are hereby deleted in their
entirety and all references and concepts relating thereto in the Loan
Agreement and the other Loan Documents are hereby deleted.
(d) The introductory paragraph of the Mortgage and the Assignment is
hereby modified to substitute the name and address (as listed above) of Assuming
Borrower, as Borrower, in place of the Borrower name and address set forth
therein.
(e) Section 4.2 of the Loan Agreement is deleted in its entirety and
the following is hereby substituted in its stead:
Section 4.2 STATUS OF BORROWER. ▇▇▇▇▇▇▇▇'s exact legal name is correctly
set forth on the first page of this Agreement, on the Mortgage and on
any UCC-1 Financing Statements filed in connection with the Loan.
Borrower is an organization of the type specified on the first page of
this Agreement. ▇▇▇▇▇▇▇▇ is organized under the laws of the state of
Texas. ▇▇▇▇▇▇▇▇'s principal place of business and chief executive
office, and the place where ▇▇▇▇▇▇▇▇ keeps its books and records,
including recorded data of any kind or nature, regardless of the medium
of recording, including software, writings, plans, specifications and
schematics, has been for the preceding four months (or, if less, the
entire period of the existence of Borrower) the address of Borrower set
forth on the first page of this Agreement. Borrower's organizational
identification number, if any, assigned by the state of incorporation or
organization is 800608031.
(f) Section 5.23 of the Loan Agreement is deleted in its entirety.
(g) Section 7.3 of the Loan Agreement is deleted in its entirety and
the following is hereby substituted in its stead.
Section 7.3 PERMITTED TRANSFERS. Notwithstanding the provisions of
Section 7.2, the following transfers shall not be deemed to be a
Prohibited Transfer: (a) a transfer by devise or descent or by operation
of law upon the death of a member, partner or shareholder of a
Restricted Party, so long as Borrower delivers notice to Lender as soon
as practicable thereafter and that such Restricted Party is promptly
reconstituted, if applicable, following the death of such member,
partner or shareholder and there is no change in Control of such
Restricted Party as a result of such transfer; (b) transfers for estate
planning purposes of an individual's interests in any Restricted Party
to the spouse or any
-9-
lineal descendant of such individual, or to a trust for the benefit of
any one or more of such individual, spouse or lineal descendant, so long
as such Restricted Party is reconstituted, if required, following such
transfer and there is no change in Control of such Restricted Party as a
result of such transfer; (c) the Sale or Pledge, in one or a series of
transactions, of not more than forty-nine percent (49%) of the stock,
limited partnership interests or non-managing membership interests (as
the case may be) in a Restricted Party; or (d) transfers of more than
forty-nine percent (49%) of the direct or indirect interests in
Borrower, provided ▇▇▇▇▇▇▇▇▇ Harvard REIT I, INC., a Maryland
corporation (the "REIT") or a Permitted Transferee directly or
indirectly at all times shall continue to own twenty percent (20%) or
more of the interests in Borrower (including interests in the general
partner of ▇▇▇▇▇▇▇▇); provided, however, no such transfers shall result
in a change in Control in the Restricted Party or change in control of
the Property (other than a change in control resulting in control by a
Permitted Transferee permitted in this Section 7.3), and as a condition
to each such transfer, no Default or Event of Default shall have
occurred and be continuing and Lender shall have received (i) not less
than thirty (30) days prior written notice of such proposed transfer,
(ii) evidence of the proposed transferee's continued compliance with the
covenants set forth in this Agreement (including, without limitation,
the covenants in Article 6) and the other Loan Documents, and (iii) if
there will be a change of management at the Property, evidence of a new
Qualified Manager for the Property and a new management agreement in
place at the Property, both satisfactory to Lender and the Rating
Agencies which rated the Securities. Notwithstanding anything to the
contrary contained in this Article 7, the REIT or a Permitted Transferee
must continue to own, directly or indirectly, at least a 20% interest
in, and Control, Borrower.
(h) Section 7.5(b) of the Loan Agreement is deleted in its entirety
and the following is hereby substituted in its stead:
(b) Borrower shall have (i) delivered written notice to Lender of
the terms of such prospective transfer not less than thirty (30) days
before the date on which such transfer is scheduled to close and,
concurrently therewith, all such information concerning the proposed
Transferee as Lender shall reasonably require and (ii) paid to Lender a
non-refundable processing fee in the amount of $15,000. Lender shall
have the right to approve or disapprove the proposed transfer based on
its then current underwriting and credit requirements for similar loans
secured by similar properties which loans are sold in the secondary
market, such approval not to be unreasonably withheld. In determining
whether to give or
-10-
withhold its approval of the proposed transfer, Lender shall consider
the experience and track record of Transferee and its principals in
owning and operating facilities similar to the Property, the financial
strength of Transferee and its principals, the general business standing
of Transferee and its principals and Transferee's and its principals'
relationships and experience with contractors, vendors, tenants, lenders
and other business entities; provided, however, that, notwithstanding
Lender's agreement to consider the foregoing factors in determining
whether to give or withhold such approval, such approval shall be given
or withheld based on what Lender determines to be commercially
reasonable and, if given, may be given subject to such conditions as
Lender may deem reasonably appropriate.
(i) Section 7.6 of the Loan Agreement is deleted in its entirety.
(j) Article XII of the Mortgage is deleted in its entirety and the
following is hereby substituted in its stead:
NOTICES
All notices, consents, approvals and requests required or permitted
hereunder or under any other Loan Document shall be given in writing and
shall be effective for all purposes if hand delivered or sent by (a)
certified or registered United States mail, postage prepaid, return
receipt requested, (b) expedited prepaid overnight delivery service,
either commercial or United States Postal Service, with proof of
attempted delivery, or by (c) telecopier (with answer back acknowledged
provided an additional notice is given pursuant to subsection (b)
above), addressed as follows (or at such other address and Person as
shall be designated from time to time by any party hereto, as the case
may be, in a written notice to the other parties hereto in the manner
provided for in this Section):
If to Lender: MERS Commercial
P.O. Box 2300
Flint, Michigan 48501-2300
Attention: Corporate Secretary
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
-11-
If to Trustee: PRLAP, Inc.
c/o Capital Markets Servicing Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Mail Code: NC1-026-06-01
Charlotte, North Carolina 28255
If to Borrower: Behringer Harvard ▇▇▇▇▇▇▇ Plaza LP
c/o Behringer Harvard Funds
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
A notice shall be deemed to have been given: in the case of hand
delivery, at the time of delivery; in the case of registered or
certified mail, when delivered or the first attempted delivery on a
Business Day; or in the case of expedited prepaid delivery and telecopy,
upon the first attempted delivery on a Business Day.
(k) Section 16.9 of the Mortgage is deleted in its entirety and the
following is hereby substituted in its stead:
Section 16.9 LOCATION, STATE OF FORMATION AND NAME OF BORROWER.
(i) chief executive office is located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇;
(ii) state of formation is the State of Texas; and
(iii) exact legal name is as set forth in the first paragraph of this
Deed of Trust.
10. NOTE RATE AND MONTHLY INSTALLMENT PAYMENT AMOUNT TO REMAIN THE
SAME. The interest rate and the monthly payments set forth in the Loan Agreement
shall remain unchanged. Prior to the occurrence of an Event of Default hereunder
or under the Note, interest shall accrue on the principal balance outstanding
from time to time at the Note Rate (as defined in the Note) and principal and
interest (which does not include such amounts as may be required to fund escrow
obligations under the terms of the Loan Documents) shall continue to be paid in
accordance with the provisions of the Note.
11. 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:
-12-
(a) FEES AND EXPENSES. Original Borrower and/or Assuming Borrower
shall pay, or cause to be paid at closing: (i) all costs and expenses incident
to the preparation, execution and recordation hereof and the consummation of the
transaction contemplated hereby, including, but not limited to, recording fees,
filing fees, surveyor fees, broker fees, transfer or mortgage taxes, rating
agency confirmation fees, application fees, all third party fees, search fees,
transfer fees, inspection fees, title insurance policy or endorsement premiums
or other charges of Title Company and the fees and expenses of legal counsel to
any Lender Party and any applicable rating agency; and (ii) an assumption fee to
Lender in the amount of $0.00 and the other fees and expenses outlined in the
beneficiary statement distributed to the parties by ▇▇▇▇▇▇.
(b) OTHER CONDITIONS. Satisfaction of all requirements under the
Loan Documents and the closing checklist for this transaction as determined by
▇▇▇▇▇▇ and ▇▇▇▇▇▇'s counsel in their sole discretion.
12. DEFAULT.
(a) BREACH. Any breach of Assuming Obligors or Original Obligors of
any of the representations and warranties contained herein shall constitute an
Event of Default under the Mortgage and each other Loan Document. (b) FAILURE TO
COMPLY. Any failure of Assuming Obligors or Original Obligors to fulfill any one
of the conditions set forth in this Agreement shall constitute an Event of
Default under this Agreement and the Loan Documents.
13. NO FURTHER CONSENTS. Assuming Obligors and Original Obligors
acknowledge and agree that ▇▇▇▇▇▇'s consent herein contained is expressly
limited to the sale, conveyance, assignment and transfer herein described, that
such consent shall not waive or render unnecessary Lender's consent or approval
of any subsequent sale, conveyance, assignment or transfer of the Property, and
that Article 7 of the Loan Agreement shall continue in full force and effect.
14. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF ASSUMING
OBLIGORS. As a condition of this Agreement, Assuming Obligors represent and
warrant to Lender as follows:
(a) Assuming Borrower is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Texas and
is qualified to do business and in good standing in the State of Texas. Assuming
▇▇▇▇▇▇▇▇ has full power and authority to enter into and carry out the terms of
this Agreement and to assume and carry out the terms of the Loan Documents.
(b) Behringer Harvard ▇▇▇▇▇▇▇ Plaza GP, LLC ("GENERAL PARTNER") is a
limited liability company 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 Assuming Borrower.
General Partner is, and shall remain, the sole General Partner of Assuming
▇▇▇▇▇▇▇▇ and has full power and authority to enter into this Agreement as
General Partner on behalf of Assuming Borrower, and to execute this Agreement.
-13-
(c) Assuming Indemnitor is a corporation duly organized and validly
existing under the laws of the State of Maryland and is qualified to do business
and in good standing in the State of Maryland. Assuming Indemnitor has full
power and authority to enter into and carry out the terms of this Agreement and
to assume and carry out the terms of the Loan Documents to which it is a party.
(d) This Agreement and the Loan Documents constitute legal, valid
and binding obligations of Assuming Obligors enforceable in accordance with
their respective terms. Neither the entry into nor the assumption and
performance of and compliance with this Agreement or 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 Assuming Obligors or any property of Assuming Obligors are bound
or any statute, rule or regulation applicable to Assuming Obligors.
(e) 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 Assuming Obligors.
(f) 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 Assuming Obligors or any of their properties or assets, whether insured
against or not, since Assuming Obligors submitted to Lender their request to
assume the Loan.
(g) The financial statements and other data and information supplied
by Assuming Obligors in connection with Assuming Obligors' request to assume the
Loan or otherwise supplied in contemplation of the assumption of the Loan by
Assuming Obligors 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 Assuming 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 Assuming Obligors.
(h) Without limiting the generality of the assumption of the Loan
Documents by Assuming Obligors, Assuming Obligors hereby specifically remake and
reaffirm the representations, warranties and covenants set forth in the
Mortgage, the Indemnity Agreement and the Environmental Indemnity Agreement
(other than the Excepted Representations).
(i) No representation or warranty of Assuming 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.
-14-
15. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF ORIGINAL
OBLIGORS. As a condition of this Agreement, Original Obligors represent and
warrant to Lender as follows:
(a) Original Borrower is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is qualified to do business and in good standing in the State of Texas.
Original Borrower has full power and authority to enter into and carry out the
terms of this Agreement and to convey the Property and assign the Loan
Documents.
(b) ▇▇▇▇▇▇▇ Plaza Associates GP, LLC (the "ORIGINAL GENERAL
PARTNER") is a limited liability company 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
Original Borrower. The Original General Partner is the sole General Partner of
Original Borrower and has full power and authority to enter into this Agreement
as General Partner on behalf of Original Borrower, and to execute this
Agreement.
(c) Original Indemnitor is a limited partnership duly organized,
validly existing and in good standing 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.
(d) This Agreement, the Sales Agreement and all other documents
executed by Original Obligors in connection therewith, 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 Sales Agreement and all other documents
executed by Original Obligors in connection therewith 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 Obligors have not received any written notices from any
governmental entity claiming that Original Obligors 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.
(f) The Certified Rent Roll provided to Lender of even date
herewith, is a true, complete and accurate summary, in all material respects, 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. Each Tenant Lease has been
duly executed and delivered by, and, to the knowledge of Original Obligors, is a
binding obligation of, the 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 the prior written
consent of Lender as provided in the Loan Documents. The tenant under each
Tenant Lease has taken possession of and is in occupancy of
-15-
the premises therein described and is open for business. 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. All obligations of the landlord under the Tenant Leases have been
performed, and, to ▇▇▇▇▇▇▇'s knowledge, 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 Obligor's knowledge,
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 except for notices which will be given as of the date
hereof.
(g) Original Borrower is the current owner of the Property. There
are no pending or, to the best of Original Obligor's knowledge, threatened
suits, judgments, arbitration proceedings, administrative claims, executions or
other legal or equitable actions or proceedings against Original Obligors or the
Property, or any pending or, to the best of Original Obligor's knowledge,
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, which would materially and adversely affect the condition of Original
Borrower or the Property.
(h) Intentionally omitted.
(i) To Original Obligor's knowledge, 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.
16. Lender hereby represents to Assuming Borrower as follows, with
the understanding that Assuming Borrower will rely thereon in connection with
its purchase of the Property: (a) Lender is the legal and equitable owner of the
Note, the Mortgage and the other Loan Documents; (b) the maturity of the Note
has not been accelerated and to the knowledge of Lender no Default (as defined
in the Loan Agreement) currently exists; and (c) there is no indebtedness owing
to Lender or any related party that is secured by the Mortgage other than the
indebtedness evidenced by the Note, and ▇▇▇▇▇▇ has made no agreement to extend
any further credit to be secured by the Mortgage or any other lien upon the
Property.
17. INCORPORATION OF RECITALS. Each of the Recitals set forth above
in this Agreement are incorporated herein and made a part hereof.
18. PROPERTY REMAINS AS SECURITY FOR LENDER. All of the Mortgaged
Property as described and defined in the Mortgage shall remain in all respects
subject to the lien, charge or encumbrance of the Mortgage, and, except as
expressly set forth herein, 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 ▇▇▇▇▇▇.
-16-
19. NO WAIVER BY ▇▇▇▇▇▇. Nothing contained herein shall be deemed a
waiver of any of Lender's rights or remedies under any of the Loan Documents, or
under applicable law.
20. REFERENCES. From and after the date hereof: (a) references in
any of the Loan Documents to any of the other Loan Documents will be deemed to
be references to such of the Loan Documents as modified by this Agreement; (b)
references in the Loan Documents to Borrower or Mortgagor shall hereafter be
deemed to refer to Assuming Borrower; (c) references in the Indemnity Agreement,
Environmental Indemnity Agreement and the other Loan Documents to the Guarantor,
Indemnitor or Principal shall hereafter be deemed to refer to Assuming
Indemnitor; and (d) all references to the term "LOAN DOCUMENTS" in the Mortgage
and Assignment of Rents shall hereinafter refer to the Loan Documents referred
to herein, this Agreement, and all documents executed in connection with this
Agreement.
21. RELATIONSHIP WITH LOAN DOCUMENTS. To the extent that this
Agreement is inconsistent with the Loan Documents, this Agreement will control
and the Loan Documents will be deemed to be amended hereby. Except as amended
hereby, the Loan Documents shall remain unchanged and in full force and effect.
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 assumption of the Loan 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 and the Loan Documents 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 ▇▇▇▇▇▇ to any further sale, conveyance, assignment or
transfer of the Property by Assuming Borrower.
-17-
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 by and construed
in accordance with the laws of the State where the Property is located.
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.
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. Assuming
Obligors and Original Obligors have 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. WAIVER OF JURY TRIAL. ORIGINAL OBLIGORS, ASSUMING OBLIGORS AND
LENDER, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY
AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVE,
RELINQUISH AND FOREVER FORGO THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THE LOAN
DOCUMENTS OR THIS AGREEMENT.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-18-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the date first aforesaid.
ASSUMING BEHRINGER HARVARD ▇▇▇▇▇▇▇ PLAZA LP, a
BORROWER: Texas limited partnership
By: Behringer Harvard ▇▇▇▇▇▇▇ Plaza
GP, LLC
Its: General Partner
By:______________________________
Name:_________________________
Title:________________________
ASSUMING BEHRINGER HARVARD REIT I, INC., a
INDEMNITOR: Maryland corporation
By:___________________________________
Name:______________________________
Title:_____________________________
ORIGINAL ▇▇▇▇▇▇▇ PLAZA ASSOCIATES, L.P., a
BORROWER: Delaware limited partnership
By: ▇▇▇▇▇▇▇ Plaza Associates GP, LLC,
a Delaware limited liability
company, its general partner
By: Brandywine Acquisition
Partners, L.P., a Delaware
limited partnership, its sole
member
By: BDN Properties I, Inc., a
Delaware corporation, its
general partner
By: ____________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
BRANDYWINE ACQUISITION PARTNERS, L.P., a
ORIGINAL Delaware limited partnership
INDEMNITOR:
By: BDN Properties I, Inc., a Delaware
corporation, its general partner
By: ____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
LENDER: LASALLE BANK NATIONAL ASSOCIATION, a
national banking association, as Trustee
and REMIC Administrator for Banc of
America Commercial Mortgage, Inc.,
Commercial Mortgage Pass-Through
Certificates, Series 2005-6
By: BANK OF AMERICA, N.A., solely in its
capacity as Master Servicer, as
authorized under that certain
Pooling and Servicing Agreement
dated as of December 1, 2005.
By:_______________________________
Name:_____________________________
Title:____________________________
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
Before me, the undersigned notary public in and for the aforesaid
jurisdiction, on this day personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III, Secretary
of Behringer Harvard ▇▇▇▇▇▇▇ Plaza GP, LLC, a Delaware limited liability
company, which limited liability company is the sole general partner in
Behringer Harvard ▇▇▇▇▇▇▇ Plaza LP, a Texas limited partnership, known to be (or
proved to me through a valid drivers license) to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he executed
the same for the purposes and consideration therein expressed and in the
capacity therein stated as the act and deed of said limited liability company
acting for and on behalf of said limited partnership
Given under my hand and seal of the office of _____ day of January,
2006.
____________________________________
Notary Public
____________________________________
Printed/Typed Name of Notary
My Commission Expires: _____________
[TITLE COMPANY TO ATTACH EXHIBIT A LEGAL
DESCRIPTION OF THE PROPERTY]