RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Stein & Lubin LLP
RECORDING
REQUESTED BY
AND WHEN
RECORDED MAIL TO:
▇▇▇▇▇
& ▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Esq.
(SPACE
ABOVE THIS LINE FOR RECORDER'S USE)
NOTE,
DEED OF TRUST, AND OTHER LOAN DOCUMENTS
THIS DEED
OF TRUST, NOTE, AND OTHER LOAN DOCUMENTS ASSUMPTION AND MODIFICATION AGREEMENT
(the “Agreement”) is made and entered into as of this 15th day of
March, 2005, by and among ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇, ▇▇▇▇▇▇▇▇ limited liability company
(the “Seller”), having an address of c/o Commonwealth Partners LLC, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ PROPERTIES - 777
TOWER, LLC, a Delaware limited liability company (the “Purchaser”), having an
address of c/▇ ▇▇▇▇▇▇▇ Properties, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and NEW YORK LIFE INSURANCE COMPANY, a New York
mutual life insurance company (“New York Life”), having an address at ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, a Massachusetts corporation (“MassMutual” and together with New York
Life collectively, “Lender”) having an address at c/o Babson Capital Management,
Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
RECITALS:
A. New York
Life is the holder and owner of a certain Promissory Note (the “New York Life
Note”), in the original principal amount of $99,000,000.00, dated August 23,
2004, and made by Seller and payable to the order of New York Life, and
MassMutual is the holder and owner of a certain Promissory Note, in the original
principal amount of $56,000,000.00 (the “MassMutual Note” and together with the
New York Life Note collectively, the “Note”), dated August 23, 2004, and made by
Seller and payable to the order of MassMutual and the following other loan
documents (collectively, the “Other Loan Documents”), evidencing and/or securing
the indebtedness evidenced by said Note:
1. that
certain Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing from Seller to New York Life, as payment and servicing agent for
itself and the other Note Holders (as defined therein), which is dated August
23, 2004, and is recorded in the Official Records of Los Angeles County,
California (the “Official Records”) as Instrument No. ▇▇-▇▇▇▇▇▇▇ (the “Security
Instrument”), which Security Instrument constitutes a lien upon certain real
property located in Los Angeles County, California, and more particularly
described on Exhibit
A attached
hereto and by this reference made a
- 1
-
part
hereof (together with any and all improvements, buildings, or structures now or
hereafter located thereon, the “Premises”);
2. that
certain Assignment of Leases, Rents, Income and Cash Collateral from Seller to
New York Life, as payment and servicing agent for itself and the other Note
Holders, which is dated August 23, 2004 and is recorded in the Official Records
as Instrument No ▇▇-▇▇▇▇▇▇▇ (the “Assignment”);
3. that
certain Environmental Indemnity Agreement from Seller to New York Life, as
payment and servicing agent for itself and the other Note Holders, which is
dated August 23, 2004 (the “Existing Environmental Indemnity”);
4. that
certain Guaranty from Fifth Street Properties, LLC, a Delaware limited liability
company (“Existing Guarantor”), to Lender which is dated August 23, 2004 (the
“Existing Guaranty”); and
5. that
certain Subordination of Management Agreement from Seller and Commonwealth
Partners Management Services, L.P., a California limited partnership to New York
Life, as payment and servicing agent for itself and the other Note Holders,
which is dated August 23, 2004 (the “Subordination of Management Agreement”);
6. that
certain Subordination, Nondisturbance and Attornment Agreement by and among
Borrower, Lender and ▇▇▇▇▇ USA, Inc., a Delaware corporation recorded with the
Los Angeles County, California Recorder on August 26, 2004 as Document No.
042199737;
7. that
certain Subordination, Nondisturbance and Attornment Agreement by and among
Borrower, Lender and National Union Fire Insurance Company of Pittsburgh, PA, a
Pennsylvania corporation recorded with the Los Angeles County, California
Recorder on October 14, 2004 as Document No. ▇▇-▇▇▇▇▇▇▇;
8. that
certain Subordination, Nondisturbance and Attornment Agreement by and among
Borrower, Lender and ▇▇▇▇▇▇ & ▇▇▇▇▇▇, a general partnership organized under
the laws of the District of Columbia recorded with the Los Angeles County,
California Recorder on September 23, 2004 as Document No.
▇▇-▇▇▇▇▇▇▇;
9. that
certain Subordination, Nondisturbance and Attornment Agreement by and among
Borrower, Lender and ▇▇▇▇▇▇ Human Resource Consulting, Inc., a Delaware
corporation recorded with the Los Angeles County, California Recorder on August
26, 2004 as Document No. ▇▇-▇▇▇▇▇▇▇;
10. that
certain Subordination, Nondisturbance and Attornment Agreement by and among
Borrower, Lender and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
- 2
-
LLP, a
California general partnership recorded with the Los Angeles County, California
Recorder on September 23, 2004 as Document No. ▇▇-▇▇▇▇▇▇▇;
11. that
certain Subordination, Nondisturbance and Attornment Agreement by and among
Borrower, Lender and ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ LLP, a California general partnership
recorded with the Los Angeles County, California Recorder on September 23, 2004
as Document No. ▇▇-▇▇▇▇▇▇▇;
12. that
certain Subordination, Nondisturbance and Attornment Agreement by and among
Borrower, Lender and UBS Financial Services Inc., a Delaware corporation
recorded with the Los Angeles County, California Recorder on September 23, 2004
as Document No. ▇▇-▇▇▇▇▇▇▇;
13. that
certain UCC-1 Financing Statement filed with the Delaware Secretary of State on
August 26, 2004, as Document No. 4241190-0;
14. that
certain UCC-1 Financing Statement filed with the Los Angeles County Recorder on
August 26, 2004, as Document No. ▇▇-▇▇▇▇▇▇▇;
15. that
certain Rent Roll Certification executed
by Borrower, dated
August 23, 2004;
16. that
certain Certification of Inventory executed by Borrower, dated August 23, 2004;
and
17. that
certain Certification of No Material Change and No Damage executed by Borrower,
dated August 23, 2004.
B. The
Seller is desirous of selling, transferring, and conveying to the Purchaser the
Premises, subject, however, to the terms of the Security Instrument and the
Other Loan Documents. Purchaser has agreed to assume the obligation and
indebtedness evidenced by the Note and the obligations of Seller under and
pursuant to the terms of the Security Instrument and the Other Loan Documents.
C. Lender is
willing to allow such sale, transfer, and conveyance, provided that Purchaser
shall assume the obligations and indebtedness as evidenced by the Note and the
obligations of Seller pursuant to the Note, the Security Instrument, and the
Other Loan Documents, and that Purchaser shall execute an Environmental
Indemnity Agreement (the “New Environmental Indemnity”), and that ▇▇▇▇▇▇▇
Properties, Inc., a Maryland corporation (“Guarantor”) shall execute a Guaranty
(the “New Guaranty”), each in form and substance acceptable to Lender, all as
more fully provided herein.
NOW,
THEREFORE, for and in consideration of the sum of Ten U.S. Dollars ($10.00),
Lender’s consent to the sale, transfer, and conveyance of the Premises to
Purchaser, Purchaser’s assumption of the obligations of Seller pursuant to the
Note, the Security Instrument, and the Other Loan Documents, the mutual
covenants and agreements of the parties contained herein, and other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged by the parties, the parties hereto agree as follows:
- 3
-
1. Recitals;
Definitions. The
foregoing recitals are true and correct and are hereby incorporated by reference
for all purposes as if fully set forth herein. Capitalized terms used, but not
otherwise defined herein shall have the respective meanings set forth in the
Security Instrument.
2. Unpaid
Principal Balance of Note. The
unpaid principal balance of the New York Life Note as of the date hereof is
$99,000,000.00, and the unpaid principal balance of the MassMutual Note as of
the date hereof is $56,000,000.00.
3. Assumption
of Liability.
Purchaser hereby assumes the obligations of Seller under the Note, the Security
Instrument and the Other Loan Documents and assumes and agrees to pay the
obligations and indebtedness evidenced by the Note in accordance with the terms
of the Note together with all obligations under the Security Instrument.
Purchaser acknowledges that the Premises shall remain and be subject to the
Security Instrument and the Other Loan Documents and that nothing contained in
this Agreement or otherwise shall affect the lien priority of the Security
Instrument over any other liens and encumbrances against the Premises. Purchaser
further agrees to assume and be bound by all of the terms, conditions,
agreements, and covenants contained in the Note, the Security Instrument, and
the Other Loan Documents, and shall as of, from, and after the date hereof be
fully liable for payment of the Note and performance of the obligations of
Seller under and pursuant to the Security Instrument and Other Loan Documents.
Purchaser contemporaneously with the execution and delivery of this Agreement
has executed and delivered to Lender an environmental indemnity agreement (the
“New Environmental Indemnity”) undertaking certain obligations with respect to
the environmental condition of the Premises. Notwithstanding anything to the
contrary set forth in this Agreement, Purchaser is not assuming (i) Seller’s
Retained Obligations (as hereinafter defined), or (ii) Seller’s obligations
under that certain Letter Agreement (as defined in the Security Instrument),
Purchaser hereby acknowledging and agreeing that Purchaser shall not be entitled
to the benefits of the Letter Agreement, all such benefits being personal to
Seller and not subject to assignment.
4. Release
of Seller; and Existing Guarantor. Lender
agrees that upon closing of the transaction contemplated by this Agreement and
the recordation of this Agreement, Lender shall be deemed, without the necessity
of any additional instrument, to (i) have released Seller from its liability for
payment of the indebtedness evidenced by the Note and its other obligations
under the Note, the Security Instrument, the Other Loan Documents and the Side
Letter; provided, however, that Seller shall remain liable for all
indemnifications contained in the Security Instrument, the Note and Other Loan
Documents, including without limitation any environmental indemnifications, and
for any acts, commissions, omissions, occurrences, non-occurrences, events,
state of facts or other matters for which Seller is, pursuant to the terms of
the Note, personally liable, existing through, as of, or prior to, the date
hereof (collectively, “Seller’s Retained Obligations”); (ii) have released
Existing Guarantor from its obligations under the Existing Guaranty except for
any provisions in Section 1.8 of the Existing Guaranty which, by their
terms, survive the sale of the Premises. Lender represents and warrants to
Seller that, to Lender’s actual knowledge without any inquiry or investigation
whatsoever, Lender is not aware of any fact or circumstance that would give rise
to Seller’s indemnification obligations under the Security Instrument, the Note
or the Other Loan Documents; provided, however, that the foregoing
representation and warranty shall not estop Lender from asserting any claim
against
- 4
-
Seller
with respect to Seller’s Retained Obligations if Lender shall become aware of
any such fact or circumstance.
5. Consent
to Transfer. Lender
hereby consents to the transfer of the Premises to Purchaser and, to the extent
that Lender has any right to accelerate the unpaid principal balance of the Note
by reason of such transfer to Purchaser, Lender waives such right. It is agreed,
however, that this waiver is made solely for the benefit of Purchaser and shall
not constitute a waiver or modification of any requirement of obtaining Lender’s
consent to any future transfer of the Premises, or a release of any other or
further right which Lender may have under the Security Instrument or the Other
Loan Documents upon any subsequent sale of the Premises by the Purchaser or
otherwise.
6. Assignment
of Rights to Escrows. Seller
and Lender hereby acknowledge and agree that no escrows or impounds have been
created and/or maintained pursuant to the terms of the Security Instrument or
the Other Loan Documents.
7. Conditions
Precedent. In
addition to the other conditions precedent set forth in this Agreement, the
effectiveness of the respective consents and releases granted by Lender within
this Agreement shall be subject to the fulfillment of the following conditions
to the satisfaction of Lender:
(a) Lender
shall have received a fully executed counterpart of this Agreement;
(b) Purchaser
and New Guarantor, as the case may be, shall have executed and delivered to
Lender the following in form and substance satisfactory to Lender:
(i)the New
Environmental Indemnity;
|
(ii) |
the
New Guaranty; |
|
(iii) |
a
Borrower’s Representations, Warranties and
Affidavit; |
|
(iv) |
a
Certificate of Inventory; |
|
(v) |
a
Rent Roll Certificate; |
|
(vi) |
such
other certificates, side letters and other instruments as Lender shall
reasonably request; and |
|
(iv) |
authorizing
resolutions on behalf of Purchaser and New Guarantor with respect to the
execution and delivery of this Agreement, the New Environmental Indemnity,
the New Subordination of Management Agreement (as hereinafter defined),
and the New Guaranty, the assumption of the obligations set forth in the
Loan Documents and such other matters as Lender may reasonably
request. |
- 5
-
(c) Purchaser
and ▇▇▇▇▇▇▇ Properties, L.P., a Maryland limited partnership (“Property
Manager”), shall have executed and delivered to Lender a Subordination of
Management Agreement (the “New Subordination of Management Agreement”), in form
and substance satisfactory to Lender;
(d) Lender
shall have received a consent of members of Seller authorizing the transactions
contemplated hereby;
(e) Lender
shall have received and approved Purchaser’s, New Guarantor’s and Property
Manager; formation documents and evidence of good standing under the State in
which they are, respectively, organized and evidence of qualification to do
business in the State of California;
(f) Lender
shall have received a CLTA 111.4 title endorsement to the policy of title
insurance insuring Lender’s interest in the Property (the “Title Policy”),
taking exception for no lien, encumbrance or other matter other than those set
forth in the Title Policy on the date originally issued and which shall insure
that title to the Property is vested in Purchaser and that the lien of the
Security Instrument is not impaired by the transactions contemplated
hereby;
(g) no Event
of Default shall exist under any of the Loan Documents; and
(h) (i) a
loan assumption fee in the amount of $775,000.00 representing one-half of one
percent (0.5%) of the outstanding principal loan balance, (ii) all of Lender’s
attorneys’ fees and expenses; (iii) title endorsement premiums; and (iv)
recording and escrow fees in connection with this Agreement and the transactions
contemplated hereby shall have been paid in full by Purchaser or
Seller.
8. Representations
and Warranties. Both
Seller and Purchaser warrant and represent, with respect to itself and not as to
each other, that they have no defense or right of setoff with respect to any
indebtedness to Lender, including without limitation the indebtedness evidenced
by the Note. Seller and, to its knowledge, Purchaser further warrant and
represent that no consent of any third party to the transfer of the Premises is
required under any document, instrument or agreement to which it is a party,
including, without limitation, under any lease of any portion of the Premises.
Seller and Purchaser acknowledge that Lender is relying on the truthfulness,
accuracy, and currency of said warranties and representations in allowing the
transfer and assumption provided herein.
Additionally,
Lender shall rely on the following representations and warranties made by the
party indicated:
(a) Seller
warrants and represents to Lender as follows:
(i) Seller is
a limited liability company duly organized, validly existing, and in good
standing under the laws of the State of Delaware and is duly qualified to
conduct business in, and is in good standing under the laws of, the State of
California, and has all requisite power and all government certificates of
authority, licenses, permits, qualifications, and documentation to own, lease,
and
- 6
-
operate
its properties and to conduct its business as now being and as proposed to be
conducted;
(ii) Except
for the rights of tenants under leases and matters currently shown on Lender’s
title insurance policy issued in connection with the Security Instrument,
Seller’s title to and possession and enjoyment of the Premises have been open,
notorious, peaceful, exclusive, and undisturbed. Neither Seller’s title to nor
possession of the Premises has been disputed or questioned, nor is the Seller
aware of any facts by reason of which the title to or possession of the Premises
or any part thereof, or any personal property located thereon, might be disputed
or questioned. There are no tenancies, leases, concessions, licenses, or other
occupancies or uses of the premises or any improvements thereon that are not
shown on the certified rent roll which is being delivered by Seller and
Purchaser contemporaneously with the execution of this Agreement;
(iii) Seller’s
taxpayer identification number is ▇▇-▇▇▇▇▇▇▇, and Seller is not a foreign
corporation, a foreign partnership, a foreign trust, or foreign estate within
the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended;
Seller’s principal place of business and office address are as stated in the
preamble to this Agreement; Seller understands that the representations made in
this paragraph are given under penalty of perjury and may be disclosed to the
Internal Revenue Service of the Treasury Department of the United
States;
(iv) The
Premises, all improvements thereon, and any other collateral pledged as security
for the indebtedness evidenced by the Note are not now damaged or injured as a
result of any fire, explosion, accident, or other material casualty;
(v) All of
the warranties and representations made by Seller in the Security Instrument and
the Other Loan Documents or in any other document or instrument recited therein
or executed and delivered with respect thereto or hereto, directly or
indirectly, are true and correct as though made as of the date hereof;
and
(vi) There is
no Event of Default, or any fact, occurrence, or non-occurrence, which with
notice or passage of time or both would become a Default or Event of Default
under the Note, the Security Instrument, or the Other Loan
Documents.
(b) Purchaser
warrants and represents to Lender as follows:
(i) Purchaser
is a limited liability company duly organized, validly existing, and in good
standing under the laws of the State of Delaware and is duly qualified to
conduct business in, and is in good standing under the laws of, the State of
California, and has all requisite power and all government certificates of
authority, licenses, permits, qualifications, and documentation to own, lease,
- 7
-
and
operate its properties and to conduct its business as now being and as proposed
to be conducted;
(ii) Purchaser
has full and lawful authority and power to execute, acknowledge, deliver, and
perform this Agreement, the New Environmental Indemnity and the New
Subordination of Management Agreement; and this Agreement and the Note, the
Security Instrument, the Other Loan Documents, as assumed and modified pursuant
to the terms of this Agreement, the New Environmental Indemnity and the New
Subordination of Management Agreement and all other documents or instruments
executed by Purchaser in connection with the transactions contemplated hereby,
constitute the legal, valid, and binding obligations of Purchaser, and any other
parties thereto, enforceable against Purchaser and such other parties in
accordance with their respective terms, except as limited by bankruptcy,
insolvency, moratorium, reorganization, or similar laws of general application
affecting creditors’ rights generally;
(iii) Purchaser’s
taxpayer identification number is ▇▇-▇▇▇▇▇▇▇, and Purchaser is not a foreign
corporation, a foreign partnership, a foreign trust, or foreign estate within
the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended;
Purchaser’s principal place of business and office address are as stated in the
preamble to this Agreement; Purchaser understands that the representations made
in this paragraph are given under penalty of perjury and may be disclosed to the
Internal Revenue Service of the Treasury Department of the United States;
(iv) There are
no legal actions, suits, arbitrations, or other legal, administrative, or other
governmental proceedings pending or threatened against Purchaser or, to
Purchaser’s knowledge, the Premises;
(v) The
execution, delivery, and performance of this Agreement and/or the assumption of
the indebtedness and obligation evidenced by the Note and the obligations
created pursuant to the Security Instrument and the Other Loan Documents will
not result in any breach of, constitute a default under, or result in the
imposition of any lien or encumbrance upon any property of the Purchaser under
any arrangement, agreement, or other instrument to which Purchaser is a party or
by which it is bound or affected, or violate or contravene any provision of
Purchaser’s articles of organization or operating agreement;
(vi) Purchaser’s
application for the assumption of the loan evidenced by the Note and the
information subsequently delivered by or on behalf of Purchaser to Lender in
connection therewith, including without limitation Purchaser’s financial
statements, taken in the aggregate do not contain any misstatement of fact or
omit to state any fact that could reasonably be considered material to the
Lender in consideration of such application or that is necessary in order to
make the facts, statements, or certifications made in connection with such
application not misleading;
- 8
-
(vii) Upon
acquisition of the title to the Premises, the Premises shall not be or become
Purchaser’s homestead;
(viii) In
connection with the purchase of the Premises by Purchaser from Seller, Purchaser
is not the Borrower under, or otherwise obligated with respect to, any
additional or secondary financing for payment of the purchase price nor shall
there be any secondary mortgages, liens, or encumbrances against the Premises
with respect to any financing to Seller or Purchaser;
(ix) Purchaser
has entered into a management agreement with Property Manager for the management
of the Premises. Purchaser has delivered a true and correct copy of such
management agreement to Lender. Pursuant to the terms of the New Subordination
of Management Agreement, the management agreement shall be subordinate to the
lien of the Security Instrument; and
(x) To
Purchaser’s knowledge, the Premises, all improvements thereon, and any other
collateral pledged as security for the indebtedness evidenced by the Note are
not now damaged or injured as a result of any fire, explosion, accident, or
other casualty;
(xi) Purchaser
has, to the best knowledge and belief of Purchaser, complied with all applicable
Legal Requirements with respect to the conduct of its business and ownership of
its properties. To Purchaser’s knowledge, no governmental orders, permissions,
consents, approvals or authorizations are required to be obtained, and no
registrations or declarations are required to be filed in connection with the
execution, delivery or performance by Purchaser of its obligations under this
Agreement, the Note or the Other Loan Documents;
(xii) Purchaser’s
assumption of the Loan will not violate the Trading with the Enemy Act, as
amended, or any of the foreign assets control regulations of the United States
Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto. Without limiting the generality
of the foregoing, neither Purchaser, nor any subsidiary or affiliate of
Purchaser, nor ▇▇▇▇▇▇▇ Properties, L.P., nor ▇▇▇▇▇▇▇ Properties, Inc. (A) is a
“blocked person” described in Section 1 of Executive Order 13224 of September
23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) or (B)
knowingly engages in any dealings or transactions, or is or will be otherwise
associated, with any such blocked person;
(xiii) Neither
Purchaser nor any of its Covered Constituent Entities (as hereinafter defined)
is or will be an “employee benefit plan” as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974 (“ERISA”) that
is subject to Title I of ERISA or a “plan” as defined in Section
- 9
-
4975(e)(1)
of the Internal Revenue Code of 1986 (“IRC”) that
is subject to Section 4975 of the IRC, and neither the assets of Purchaser nor
the assets of any of its Covered Constituent Entities are or will constitute
“plan assets” of one or more such plans for purposes of Title I of ERISA or
Section 4975 of the IRC. As used in this Agreement, the term “Covered
Constituent Entity” shall mean any entity that holds a direct or indirect
interest in Purchaser apart from any such entity (1) which is a publicly offered
security within the meaning of 29 CFR §2510.3-101(b)(2), (2) whose interest in
Purchaser does not constitute part of a significant equity participation by
benefit plan investors within the meaning of 29 CFR §2510.3-101(f), or (3) whose
interest in Purchaser is an “operating company,” “venture capital operating
company” or “real estate operating company” within the meaning of 29 CFR
§2510.3-101(c), (d) or (e), respectively; and
(xiv) Purchaser
is not and will continue not to be a “governmental plan” within the meaning of
Section 3(32) of ERISA and transactions by or with Purchaser are not and will
not be subject to any Legal Requirements regulating investments of and fiduciary
obligations with respect to governmental plans. Any liability that Purchaser (or
any of its affiliates) may have in respect of an employee benefit plan as
defined in Section 3(3) of ERISA has been and shall continue to be satisfied in
full.
(c) Seller
and Purchaser represent and warrant to Lender, with respect to themselves only,
as follows:
(i) The
security interests created pursuant to the terms of the Security Instrument and
the Other Loan Documents (to the extent that they create security interests) are
valid and subsisting security interests in and to the collateral identified
therein, all as more fully provided in said Security Instrument and the Other
Loan Documents;
(ii) Neither
Seller nor Purchaser has received any citation as to violations of any federal,
state, or local law concerning the Premises or any improvements located upon the
Premises and Seller and Purchaser have no knowledge of any violations or notices
of violations of any federal, state, or local law with respect to the Premises
or any improvements located therein;
(iii) In
connection with the assumption evidenced hereby and the transfer of the
Premises, each of Seller and Purchaser has had access to counsel of their
respective choice, have otherwise satisfied themselves as to the nature,
meaning, effect, and significance of the provisions of this Agreement, the New
Environmental Indemnity, the New Subordination of Management Agreement, the
Note, the Security Instrument, and the Other Loan Documents and have not relied
on Lender, or any employee, agent, independent contractor, or attorney of Lender
as to the condition or the financial viability of the Premises.
- 10
-
9. Release. Each of
Seller and, by its acknowledgement below, Existing Guarantor agrees that upon
closing of the transaction contemplated by this Agreement and the recordation of
this Agreement, each of Seller and Existing Guarantor shall be deemed, without
the necessity of any additional instrument, to have released Lender and its
officers, directors, employees, agents, and attorneys of and from any and all
past and present claims, demands, damages, causes, losses, expenses, actions,
and causes of action including, without limiting the generality of the
foregoing, any and all known and unknown injuries and damages with respect to or
arising out of (i) the transactions represented by the Note, the Security
Instrument, the Existing Environmental Indemnity, the Existing Guaranty and the
Other Loan Documents, (ii) the administration of the loan evidenced by the
Note, the Security Instrument, the Existing Environmental Indemnity, the
Existing Guaranty and the Other Loan Documents, or (iii) all matters related to
said loan in any respect. Each of Seller and Existing Guarantor hereby expressly
understands and agrees that this release and waiver extends to all claims of
every nature whatsoever, known or unknown, suspected or unsuspected, existing,
claiming to exist, or which may hereafter arise out of or result from, or be
connected with, the matters and things covered as described herein. The rights
and defenses being waived and released hereunder include without limitation any
claim or defense based on the Lender having charged or collected interest at a
rate greater than that allowed to be contracted for by applicable law; provided,
however, that in no event shall such waiver and release be deemed a change to,
or modify the terms of, the Note, the Security Instrument, or the Other Loan
Documents which provide that sums paid or received in excess of the maximum rate
allowed by applicable law, as amended from time to time, shall reduce the
principal sum due, said provision to be in full force and effect.
Seller
and Existing Guarantor acknowledge and agree that they have been informed by
their attorneys of, are familiar with, and hereby expressly waive the provisions
of, Section 1542 of the California Civil Code, which provides as
follows:
“A
general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the
debtor.”
Seller
and Existing Guarantor acknowledge and agree that they may hereafter discover
claims presently unknown or unsuspected or facts in addition to or which are
different from those which they now know or believe to be true as to the matters
herein released. Nevertheless, it is the intention of Seller and Existing
Guarantor and each of them to fully, finally and forever release all such claims
which now exist, whether known or unknown to them and whether or not such claims
become known to them in the future.
10. Addresses
for Notices. The
parties hereto agree that, notwithstanding anything to the contrary contained in
the Note, the Security Instrument, and the Other Loan Documents, as of, from,
and after the date of execution, delivery, and recording hereof, the appropriate
addresses for notices under the Note, the Security Instrument, and the Other
Loan Documents shall be as follows:
- 11
-
|
Purchaser
(Trustor, Borrower, Maker): |
▇▇▇▇▇▇▇
Properties - 777 Tower, LLC
c/▇
▇▇▇▇▇▇▇ Properties, Inc.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ Lammas, Esq. |
|
with
a copy to: |
▇▇▇▇▇▇
& ▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇▇▇▇▇▇▇, Esq. |
|
Lender: |
New
York Life Insurance Company
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Director - Loan Administration Division
Loan
Nos.: 372-8499 and 372-8501 |
|
with
a copy to: |
New
York Life Insurance Company
c/o
New York Life Insurance Management LLC
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Office of the General Counsel Managing Director - Real Estate
Section |
11. Ratification. Except
to the extent modified by this Agreement, the terms and conditions of the Note,
the Security Instrument, and the Other Loan Documents are hereby ratified and
affirmed and shall remain in full force and effect.
12. Further
Assurances. Should
Lender so request, Seller and Purchaser agree to execute such other or further
documentation, or perform such other acts, as may be necessary to better
effectuate and carry out the purposes of this Agreement and the assumption
evidenced hereby and of the Note, the Security Instrument, and the Other Loan
Documents.
13. Costs.
Purchaser shall pay all costs of the transaction evidenced hereby, to include
without limitation attorneys’ fees and recording and filing fees, as well as the
cost of such endorsements to Lender’s title insurance policy as Lender shall
require, including without limitation, an endorsement insuring the lien of the
Security Instrument after the recording of this Agreement as a valid and
subsisting first lien, subject only to such exceptions as are acceptable to
Lender in its sole discretion; provided, however, that Seller shall pay its
attorneys’ fees. In addition, all debt service payments under the Note, real
estate taxes and insurance premiums must be current. Such costs shall be due
upon execution hereof and the payment thereof shall be a condition precedent to
Lender’s consent contained herein. In the event that it is determined that
additional costs relating to this transaction are due, Purchaser agrees to pay
such costs immediately upon demand.
- 12
-
14. UCC
Financing Statements.
Purchaser hereby authorizes Lender to file and record one or more UCC-1
financing statements in form satisfactory to Lender covering fixtures and
personal property and/or other collateral related to the Premises and covered by
the Security Instrument or the Other Loan Documents, and hereafter Purchaser
authorizes Lender to file one or more financing or continuation statements, and
Purchaser hereby confirms that it grants Lender a security interest in all
fixtures, personal property and/or any other collateral described in the
Security Instrument or the Other Loan Documents.
15. Legal
Opinion.
Contemporaneously herewith, Purchaser shall furnish Lender a current written
opinion of Purchaser’s counsel that (a) Purchaser is a duly formed, validly
existing limited liability company in good standing under the laws of the State
of Delaware and duly qualified to conduct business in the State of California,
(b) Purchaser has authorized the execution of this Agreement, the New
Environmental Indemnity, the New Subordination of Management Agreement, and the
other documents, instruments and certificates required hereunder and such
documents, instruments and certificates have been duly executed and delivered,
(c) this Agreement, the New Environmental Indemnity, the New Subordination of
Management Agreement, and the other documents executed by Purchaser in
connection herewith are valid and binding upon Purchaser, (d) New Guarantor is a
duly formed, validly existing corporation in good standing under the laws of the
State of Maryland, (e) New Guarantor authorized the execution of this Agreement
and the New Guaranty, and the other documents, instruments and certificates
required hereunder and such documents, instruments and certificates have been
duly executed and delivered, (f) the New Guaranty and this Agreement are valid
and binding upon New Guarantor, and (g) such other opinions as requested by
Lender.
16. Merger. Neither
Lender nor any of its employees, attorneys, representatives, or other agents has
made any representations, covenants, promises, or warranties with respect to the
subject matter hereof, express or implied, except as explicitly set forth
herein, and no rights or privileges are or shall be acquired by Purchaser or
Seller by implication or otherwise, except as expressly set forth herein.
17. Paragraph
Headings. The
paragraph headings used herein are for convenience of reference only and are not
to be used in the construction or interpretation hereof.
18. Governing
Law. This
Agreement shall be governed, interpreted, and construed by, through, and under
the laws of the State of California, excepting, however, its laws or principles
regarding choice of laws or conflicts of laws.
19. Construction. As used
herein, the neuter gender shall include the masculine and the feminine genders
and vice versa, and the singular the plural, vice versa, as the context demands.
20. Binding
Effect. This
Agreement shall inure to the benefit of and be binding upon the parties hereto,
as well as their respective successors and assigns, heirs, and personal
representatives.
- 13
-
21. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which taken together shall constitute one and the
same instrument.
22. Waiver
of Jury Trial. SELLER,
PURCHASER, AND LENDER HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
RIGHT THEY MAY HAVE TO TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, OR
COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR
INDIRECTLY TO THE INTERPRETATION, CONSTRUCTION, VALIDITY, ENFORCEMENT OR
PERFORMANCE OF THIS AGREEMENT OR THE INDEBTEDNESS EVIDENCED BY THE NOTE; OR ANY
ACTS OR OMISSION OF LENDER, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN
CONNECTION WITH ANY OF THE FOREGOING.
23. Exculpation.
Notwithstanding anything in this Agreement to the contrary, Lender acknowledges
that no present or future officer, director, employee, trustee, member,
retirant, beneficiary, internal investment contractor, manager, investment
manager or agent of the California Public Employees Retirement System
(“CalPERS”) or CommonWealth Pacific LLC shall have any personal liability,
directly or indirectly, under this Agreement and recourse shall not be had
against any such officer, director, employee, trustee, member, retirant,
beneficiary, internal investment contractor, investment manager or agent under
or in connection with this Agreement, the Note or any Other Loan Document
heretofore or hereafter executed in connection with the Loan. By its acceptance
of this Agreement, Lender hereby waives and releases any and all such personal
liability and recourse. The limitations of liability provided in this paragraph
are in addition to, and not in limitation of any limitation of liability
applicable to CalPERS or CommonWealth Pacific LLC provided by law or in any
other contract, agreement or instrument. Such exculpation of liability shall be
absolute and without any exception whatsoever.
[SIGNATURE
PAGES TO FOLLOWS.]
- 14
-
IN
WITNESS WHEREOF, Seller has executed this Agreement as of the day and year first
above written.
|
SELLER:
777
SOUTH FIG, LLC,
a
Delaware limited liability company
By: CWP
Capital Management, LLC,
a
Delaware limited liability company
Its:
Manager
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
COO | |
Existing
Guarantor has executed this Agreement as of the day and year first above written
for the purpose of consenting to the provisions of Section 9.
|
EXISTING
GUARANTOR:
FIFTH
STREET PROPERTIES, LLC,
a
Delaware limited liability company
By: CWP
Capital Management, LLC,
a
Delaware limited liability company
Its:
Manager
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title: COO | |
IN
WITNESS WHEREOF, Purchaser has executed this Agreement as of the day and year
first above written.
|
PURCHASER:
▇▇▇▇▇▇▇
PROPERTIES - 777 TOWER, LLC,
a
Delaware limited liability company
By:
▇▇▇▇▇▇▇
Properties, L.P.,
a
Maryland limited partnership
its
sole member
By: ▇▇▇▇▇▇▇
Properties, Inc.,
a
Maryland corporation
its
sole general partner
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
& Co-CEO |
IN
WITNESS WHEREOF, the Lender has executed this Agreement as of the day and year
first above written.
|
LENDER:
NEW
YORK LIFE INSURANCE COMPANY,
a
New York mutual life insurance company
By:
________________________________
Name:
______________________________
Title:
_______________________________
MASSACHUSETTS
MUTUAL LIFE INSURANCE COMPANY,
a
Massachusetts corporation
By: Babson
Capital Management Inc.
its
authorized agent
By:
____________________________
Name:
__________________________
Title:
___________________________ |