Exhibit 10.113
CONSENT AND ASSUMPTION AGREEMENT
This Consent
and Assumption Agreement (this “Agreement”)
is made as of August 19, 2003 by and among LAKESHORE MARKETPLACE, LLC, a
Delaware limited liability company (“Seller”),
RAMCO LAKESHORE LLC, a Delaware limited liability company, f/k/a Lakeshore MP,
LLC (“Buyer”), LAKESHORE MARKETPLACE FINANCE COMPANY, INC., a
Delaware corporation, HORIZON GROUP PROPERTIES, L.P., a Delaware limited
partnership, HORIZON GROUP PROPERTIES, INC., a Delaware corporation
(collectively, whether one or more, “Original Guarantor”),
RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership (“Guarantor”), and WELLS FARGO BANK MINNESOTA, N.A., as
trustee for the registered holders of Salomon Brothers Mortgage Securities VII,
Inc., Commercial Mortgage Pass-Through Certificates, Series 2001-C2, acting by
and through its Master Servicer and General Special Servicer, Midland Loan
Services, Inc. (collectively referred to herein as “Lender”),
with reference to the following facts:
RECITALS
A. Seller has been the owner of certain
real property located at 5241 Harvey Street, Norton Shores, Michigan, commonly
known as Lakeshore Marketplace Shopping Center, and more particularly described
in Exhibit “A” attached hereto and incorporated
herein by reference for all purposes together with all improvements, fixtures
and personal property located thereon and or/described in any of the herein
defined Loan Documents which, with the above described real property (the “Real Property”), is collectively referred to as the “Property”.
Further, as used herein, the term “Property”
shall mean the Property or, where applicable, such portions thereof as are
owned by Buyer. The Property is
encumbered by a first lien and security interest on the Property evidenced by,
among other things, that certain (i) Mortgage dated July 30, 2001, executed by
Seller toGreenwich Capital Financial Products, Inc. (the “Original
Lender”), as mortgagee, filed for record and recorded in
Liber 3242, Page 914 in the official records of Muskegon County, Michigan (the
“Mortgage”), (ii) Assignment of Leases dated July 30,
2001, executed by Seller for the benefit of Original Lender, filed for record
and recorded in Liber 3242, Page 958 in the official records of Muskegon County,
Michigan (the “Assignment of Leases”),
(iii) Environmental Indemnity Agreement
dated July 30, 2001, executed by Seller as indemnitor thereunder for the
benefit of Original Lender (the “Environmental Indemnity”), (iv)
Replacement Reserve and Security Agreement dated July 30, 2001, executed by
Seller for the benefit of Original Lender (the “Replacement Reserve Agreement”),
(v) Collection and Deposit Account Agreement dated July 30, 2001, executed by
Seller, Original Lender and the other parties named therein (the “Deposit
Account Agreement”), and (vi) Tenant Improvement and Leasing
Commission Reserve and Security Agreement dated July 30, 2001, executed by
Seller for the benefit of Original Lender (the “TI/LC Reserve
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Agreement”). Original Guarantor guaranteed certain obligations of Seller under
the Loan Documents (as hereinafter defined) pursuant to that certain Exceptions
to Non-Recourse Guaranty dated July 30, 2001, executed by Original Guarantor,
as guarantor, for the benefit of Original Lender (the “Guaranty”). The personal property, fixtures and other
collateral covered by the Mortgage and the other Loan Documents is subject to a
first lien and security interest on the Property evidenced by, among other
things, that certain (i) UCC-1 Financing Statement filed as number 4419973 with
the Office of the Secretary of State of Michigan, and (ii) UCC-1 Financing
Statement filed for record and recorded Liber 3242, Page 417 in the official
records of Muskegon County, Michigan (collectively, said UCC-1 Financing
Statements shall be referred to as the “UCC-1 Financing Statement”). The
Mortgage, the Assignment,
the Environmental Indemnity, the Replacement Reserve Agreement, the Deposit
Account Agreement, the TI/LC Agreement, the Guaranty and the
UCC-1 Financing Statement and any all other documents, instruments or
agreements evidencing or creating a lien or security interest relating to any
of the Property, whether or not referenced herein, are collectively referred to
herein as the “Security Documents”.
B. The Security Documents secure a
repayment of a loan (the “Loan”) to Seller evidenced
by a Promissory Note (the “Note”) dated July 30, 2001,
in the original principal amount of $15,993,000.00 executed by Seller, as
maker, in favor of Original Lender, as payee.
The Security Documents further secure performance of all the
obligations, covenants, and agreements contained in the Mortgage and in all other documents executed
by Seller or any other party evidencing, securing, memorializing or in a any
way relating to the Loan or perfecting the lien or security interest created by
any Security Document (such documents, instruments and agreements together with
the Note, the Mortgage, the Guaranty,
the Environmental Indemnity and the other Security Documents, as same may be
amended, reinstated, consolidated, supplemented, increased, decreased,
restated, extended or otherwise modified at any time, and from time to time,
are collectively and individually referred to herein as the “Loan
Documents”).
C. Lender
now holds all of Original Lender’s interest in and under the Mortgage and the
other Loan Documents. Midland Loan
Services, Inc. services the Loan as Master Servicer and General Special
Servicer, pursuant to that certain Pooling and Servicing Agreement dated as of
December 1, 2001.
D. Seller
and Buyer entered into that certain Agreement of Purchase and Sale (as amended,
the “Contract of Sale”) dated
April 18, 2003, for the sale and purchase of the Property. Unless Lender elects to consent to the
transfer, the provisions of the Loan Documents entitle Lender to, among other
things, accelerate payment of the balance owing under the Note, to foreclose
the Mortgage and exercise any and all rights, remedies or recourses to which it
is entitled under any of the Loan Documents.
Seller will sell, transfer, and convey the Property, subject to the Loan
Documents, to Buyer (i) if Buyer assumes, to Lender’s full satisfaction, the
Loan and all of Seller’s obligations, agreements, covenants, liabilities,
representations, warranties, duties and the like (collectively, the “Obligations”) arising under the Loan Documents, and
(ii) if Lender agrees not to exercise its right under the Mortgage to
accelerate the unpaid balance of the Note as a result of such transfer to Buyer
and allows Buyer to assume the Loan and all of Seller’s obligations under the
Loan Documents.
E. Subject
to the terms and conditions of this Agreement and the Loan Documents, Lender is
willing to consent to the transfer of the Property to Buyer and permit Buyer’s
assumption of the Loan and Obligations arising under the Loan Documents. Lender’s willingness to consent to such
assumption by Buyer is expressly conditioned on, among other things, Buyer’s
agreement that it is specifically assuming all Obligations under the Note and
other Loan Documents which are fully and unconditionally recourse subject,
however, to the non recourse provisions set forth in the Loan Documents.
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AGREEMENT
NOW, THEREFORE, for good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, the parties agree as
follows:
1. GENERAL. Lender and Buyer confirm and agree that a)
the current outstanding principal balance of the Note is $15,731,556.75 and
Buyer hereby ratifies, reaffirms and consents to all of the other terms of each
of the Loan Documents, as applicable; b) the current effective interest rate of
the Note is 7.647% per annum; c) the Note contains a fixed interest rate and a
maturity date of August 1, 2011; d) the current effective monthly principal and
interest installment payment under the Note is $113,439.59, which is due and
payable on the first day of each and every calendar month; e) the current
effective monthly escrow payment to Lender for taxes on the Property is
$42,197.43, which is due and payable on the first day of each and every
calendar month; f) the current effective monthly escrow payment to Lender for
insurance on the Property is $5,829.91, which is due and payable on the first
day of each and every calendar month; g) the current effective monthly escrow
payment to Lender for replacement reserves with respect to the Property is
$4,463.98; h) the current effective monthly escrow payment to Lender for tenant
improvement and leasing commission reserves with respect to the Property is
$12,000.00; i) all installment payments due up to August 1, 2003, under the
Note and/or the Mortgage shall have been paid current; j) there are no defenses
or claims of setoffs with respect to any such sums or other amounts owing under
the Note, Mortgage or any of the other
Loan Documents; k) Lender is the current holder of the Note, Mortgage and other
Loan Documents; l) no payment default exists of any amount due and owing under
the Loan Documents and no late charges are currently owing thereunder and to
Lender’s knowledge, without any inquiry or investigation whatsoever, no other
default exists under the Loan Documents; m) there are no currently outstanding
default notices issued pursuant to the Loan Documents; and n) unless and until
Lender provides an alternative address for Lender, all Loan payments and all
notices and correspondence to Lender shall be made or given to Lender at the
address of Lender set forth at the top of the first page of this Agreement.
2. CONSENT
TO TRANSFER. Lender shall consent
to the transfer of the Property from Seller to Buyer subject to satisfaction of
all of the following conditions precedent and the other terms of this
Agreement: o) the complete execution and acknowledgment of this Agreement by
all of the parties hereto and the delivery thereof to Lender for recordation
concurrently with the closing of Buyer’s acquisition of the Property as
contemplated by the Contract of Sale (the “Closing”);
p) recordation and filing, as appropriate, at Closing of the New Financing
Statements (defined below) in form and substance satisfactory to Lender; q) the
delivery to Lender of satisfactory evidence of Buyer’s satisfaction of all
insurance requirements as set forth in the Loan Documents; r) the issuance to
Lender of the Title Endorsements (defined below) in form and substance
acceptable to Lender; s) the full release and reconveyance of any other liens
or monetary encumbrances against the Property which are not in favor of Lender
other than liens for property taxes and assessments not yet due and payable; t)
the payment to Lender of the Assumption Fee (defined below), and the Note
installment and all other payments, fees and expenses required by Section 3 of this Agreement to be paid at Closing by
Buyer and/or Seller or as required by any of the Loan Documents; u) the
delivery of evidence of the capacity and authority of Seller, Buyer, Original
Guarantor and Guarantor to consummate the transactions contemplated in the
Contract of Sale and/or this Agreement, as the case may be, consents and
resolutions of Seller and Buyer authorizing the transactions contemplated in
this Agreement and/or the Contract of Sale together with a true, correct and
complete copy of the Operating Agreement of Buyer, as amended and/or restated,
which shall include, without limitation, certain “special purpose vehicle”
provisions acceptable to Lender which shall include, without limitation, those
provisions required in the Loan Documents, all in form and substance
satisfactory to Lender; v) a written consent and subordination from each and
every party holding a subordinate lien or interest on the Property, to provide
their respective consents in all respects to the transactions set forth herein
and their continued subordination of their respective liens to the Loan
Documents, each in form and substance satisfactory to Lender; w) a current
written opinion of counsel for Buyer, in form and substance satisfactory to
Lender, to the effect, among other things as Lender may require, that the Loan
is not usurious or otherwise illegal under applicable law, that the Loan
Documents, as amended, and this Agreement are valid and binding upon Buyer, and
are enforceable in accordance with their terms, that the persons executing this
Agreement and any other documents, instruments or agreements related hereto
have the requisite
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authority to execute such documents on behalf of Buyer and
that Buyer has authorized the execution of this Agreement and the documents
contemplated hereby; x) Buyer and/or Seller shall pay all costs of Buyer,
Seller and Lender associated with Closing and/or this Agreement; y) all monthly
debt service payments and real estate taxes and insurance premiums, must be
current; z) Buyer shall provide to Lender evidence, in a form and substance
satisfactory to Lender, that all insurance premiums due to maintain all
insurance required by the Mortgage have been paid in full as of the date of
this Agreement and that no delinquencies exist with regard to same; aa) Buyer
shall provide to Lender evidence, in form and substance satisfactory to Lender,
that all taxes, charges, assessments, and impositions of any kind have been
paid in full as of the date of this Agreement and that no delinquencies exist
with regard to same; bb) a current survey of the Property, in form and
substance satisfactory to Lender; cc) uniform commercial code searches and tax
lien searches satisfactory to Lender; dd) copies of all management or other
similar agreements, to be in form and substance satisfactory to Lender and
certified by Buyer to be true and correct, together with true and correct
copies of a tenant estoppel for each tenant; ee) Buyer and Seller shall execute
and deliver to Lender any and all other documents, instruments and agreements
reasonably necessary for the completion of the transaction contemplated by this
Agreement; and ff) the delivery to Lender by Seller and/or Buyer of all items
identified on that certain closing checklist heretofore furnished by Lender to
Seller and Buyer.
The validity and effect of this Agreement including
the consent of Lender as contemplated herein are wholly conditioned on delivery
of aforesaid items to Lender on or before the Closing.
3. ASSUMPTION
FEE; INSTALLMENT PAYMENT; THE TITLE ENDORSEMENTS AND EXPENSES. In consideration for Lender’s consent to the
transfer of the Property from Seller to Buyer, Seller covenants and agrees to
pay to Lender at Closing gg) $157,315.57, which represents the assumption fee
to Lender for consenting to Buyer’s assumption (the “Assumption
Fee”), and hh) $177,930.91, which represents the September,
2003 principal and interest Note installment payment, together with all
impounds due under the Mortgage and this Agreement. Neither the Assumption Fee nor said impounds shall be credited
against the principal balance. In
addition, at Closing Buyer shall (i) cause to issue such endorsements to the
mortgagee title insurance policy issued by Chicago Title Insurance Company,
Policy No. 1070078919, covering the Mortgage, and in such form as Lender may
reasonably require or, alternatively, as Lender may request in its sole
discretion, a new mortgagee title insurance policy in form and substance acceptable
to Lender (collectively, the “Title Endorsements”),
including, without limitation, showing that the Security Documents are the only
monetary liens of record against the Property, and (ii) pay the cost of the
Title Endorsements, any escrow, filing or recording fees applicable to this
transaction, and Lender’s costs and expenses incurred in connection with this
Agreement or this transaction including without limitation, Lender’s reasonable
attorneys’ fees incurred in connection with this Agreement or this transaction.
4. BUYER’S
ASSUMPTION OF LOAN; NEW FINANCING STATEMENTS; ASSUMPTION OF GUARANTY. Buyer hereby expressly assumes, with
recourse, subject to nonrecourse provisions set forth in the Loan Documents,
the unpaid balance due and owing on the Note, together with interest thereon as
provided in the Note, together with all other obligations under the Note, Mortgage and each and every one of the Loan
Documents, with the same force and effect as if Buyer had been specifically
named therein as the original maker, borrower, grantor or debtor, as applicable
it being specifically agreed by Buyer that to the extent said Note is recourse
that Lender’s remedies shall not in any respect or extent be limited solely to
the Property or any other collateral securing the obligation. Buyer further expressly promises to pay all
loan installments as they become due and to observe all obligations of the Note
and Mortgage. The foregoing assumption
by Buyer is absolute and unconditional, subject to non recourse provisions set
forth in the Loan Documents and is not subject to any defenses, waivers, claims
or offsets nor may it be affected or impaired by any agreement, condition,
statement or representation of Seller or Buyer or any failure to perform the
same and that Buyer hereby relinquishes, waives and releases any and all such
defenses, claims, offsets, and causes of action. Buyer expressly agrees that it has read and approved of and will
comply with and be bound by all of the terms, conditions, and provisions
contained in the Mortgage, the Note and all other Loan Documents.
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Buyer hereby authorizes Lender to file one or more
UCC-1 and UCC-3 financing statements covering fixtures and personal property
and/or other collateral related to the Real Property and covered by any of the
Security Documents, without signature of Buyer to the extent permitted by law
(the “New
Financing Statements”), and Buyer hereby confirms that it grants
Lender a security interest in all fixtures, personal property and/or any other
collateral described in any of the Security Documents.
Guarantor hereby expressly assumes all the obligations
of Original Guarantor under the Guaranty, with the same force and effect as if
Guarantor had been named therein as an original indemnitor therein, and
Guarantor agrees that he/she shall be liable for all of such obligations as
guarantor thereunder. Guarantor hereby
expressly ratifies and reaffirms the Note, the Mortgage, the Guaranty and each
and every one of the other Loan Documents and acknowledges and agrees that
nothing in this Agreement (any provision to the contrary notwithstanding), the
Contract of Sale or any other document or instrument shall in any way diminish
the obligations of Guarantor under the
Note, the Mortgage, the Guaranty or any other of the other Loan Documents. The foregoing assumption by Guarantor is
absolute and unconditional, is not subject to any defenses, waivers, claims or
offsets nor may it be affected or impaired by any agreement, condition,
statement or representation of Seller or any failure to perform the same and
that Guarantor hereby relinquishes, waives and releases any and all such
defenses, claims, offsets, and causes of action. Guarantor expressly agrees that he has read and approved of and
will comply with and be bound as guarantor by all of the terms, conditions, and
provisions contained in the Guaranty.
5. LIMITATION
OF CONSENT. Lender’s consent in
this Agreement is strictly limited to the conveyance of the Property from
Seller to Buyer, and this Agreement shall not constitute a waiver or
modification of any requirement of obtaining Lender’s consent to any future
transfer of the Property or any portion thereof or interest therein, nor shall
it constitute a modification of the terms, provisions, or requirements in the
Loan Documents in any respect except as expressly provided herein. Buyer specifically acknowledges that any
transfer of the Property or any portion thereof or interest therein by Buyer
shall entitle Lender to accelerate the Note balance and foreclose the
Mortgage. The Loan Documents are hereby
ratified and except as expressly modified in this Agreement, the Note, Mortgage and
other Loan Documents remain unmodified and are in full force and effect.
6. NO
REPRESENTATIONS OF LENDER. Buyer
recognizes and agrees that Lender has made no representations or warranty,
either express or implied regarding the Property and has no responsibility
whatsoever with respect to the Property, the condition of the Property or the
use, occupancy, or status of the Property.
To the extent Buyer has any claims which in any manner relate to the
Property, the condition of the Property, or the use, occupancy, or status of
the Property, the same shall not be asserted against Lender or its agents,
employees, professional consultants, affiliated entities, successors or
assigns, or asserted as a defense to any of the Loan Documents.
7. EFFECT
OF AGREEMENT. This Agreement shall
be deemed to form a part of the Loan Documents. This Agreement shall not prejudice any present or future rights,
remedies or powers belonging or accruing to Lender under the Loan Documents,
nor impair the lien of the Mortgage.
8. NO
EFFECT ON LIENS OR PRIORITY.
Nothing in this Agreement shall in any way release, diminish or affect
the first position lien of the Mortgage or any liens created by, or the
agreements or covenants contained in, the Loan Documents or the first-lien
priority of any such liens. Buyer
agrees that the Note, the Mortgage and other the Loan Documents shall secure
all other sums that may be advanced in the future by Lender to Buyer or any of
its successors or assigns or any other owner(s) of the Property pursuant to the
terms of the Loan Documents.
9. BUYER’S
CONTINUING RESPONSIBILITY FOR ENVIRONMENTAL MATTERS. Buyer and Guarantor each hereby specifically
ratifies, affirms and confirms the environmental obligations, covenants,
indemnities and agreements set forth in the Loan Documents, including, without
limitation, the Environmental Indemnity.
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10. BUYER’S
ENVIRONMENTAL INDEMNIFICATION. All
representations, warranties, covenants, agreements and indemnities of Seller in
the Mortgage and the other Loan Documents (as assumed by Buyer) relating to
environmental matters and/or Section 9 of this
Agreement shall not be affected by any investigation by or on behalf of Lender
or by any information Lender may have or obtain with respect thereto.
11. SELLER’S
REPRESENTATION AND WARRANTIES. In
order to induce Lender to enter into this Agreement, Seller hereby represents
and warrants that ii) Seller is the owner of the Property and is duly
authorized to execute, deliver and perform this Agreement; jj) any court or
third-party approvals necessary for Seller to enter into this Agreement have
been obtained; kk) the entities and/or persons executing this Agreement on
behalf of Seller are duly authorized to execute and deliver this Agreement; ll)
this Agreement and the Loan Documents are in full force and effect and the
transactions contemplated therein constitute valid and binding obligations
enforceable by Lender in accordance with their terms and have not been modified
either orally or in writing; mm) Lender has not waived any requirements of the
Loan Documents nor any of Lender’s rights thereunder; nn) no Event of Default
(as defined in the Mortgage) exists or any event, which, as a result of the
passage of time or the expiration of any cure period would constitute a default
or an Event of Default; oo) there exists no defenses or claims of set off with
respect to any sums owing under the Note; pp) all representations and
warranties in the Contract of Sale are true and correct; and qq) all
representations and warranties referred to herein shall be true as of the date
of this Agreement and Closing and shall survive Closing.
12. BUYER’S
REPRESENTATIONS, WARRANTIES AND COVENANTS.
In order to induce Lender to enter into this Agreement, Buyer hereby
represents and warrants that rr) Buyer is duly authorized to execute, deliver
and perform this Agreement; ss) any court or third-party approvals necessary
for Buyer to enter into this Agreement have been obtained; tt) the entities
and/or persons executing this Agreement on behalf of Buyer are duly authorized
to execute and deliver this Agreement on Buyer’s behalf; uu) this Agreement and
the Loan Documents are in full force and effect and the transactions
contemplated therein constitute valid and binding obligations of Buyer
enforceable by Lender in accordance with their terms and have not been modified
either orally or in writing; vv) Buyer’s mailing address for all Lender’s
correspondence and notices is 27600 Northwestern Highway, Suite 200,
Southfield, Michigan 48034; ww) to the
best of Buyer’s knowledge after reasonable inquiry and investigation, no
default or Event of Default exists or any event, which, as a result of the
passage of time or the expiration of any cure period, or both, would constitute
a default or Event of Default; xx) to the best of Buyer’s knowledge after
diligent inquiry and investigation, all representations and warranties of Buyer
in the Contract of Sale are true and correct; yy) Buyer covenants and agrees
that no liens will attach to the Property as a result of or in any way relating
to the consummation of the transaction contemplated by this Agreement other
than liens in favor of Lender; zz) Buyer hereby authorizes Lender to file one
or more financing or continuation statements, and amendments thereto, relative
to all or any part of the Property without the signature of Buyer where
permitted by law, and otherwise agrees to execute same at Lender’s request;
aaa) the execution, delivery, and performance by Buyer of this Agreement does
not contravene any law or contractual restriction binding on or affecting
Buyer; bbb) no consent, authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body or any
person or entities is required for the due execution, delivery or performance
by Buyer of this Agreement; ccc) upon the closing of the transactions
contemplated herein and the Contract of Sale, Buyer shall have good and
indefeasible title to the Property, subject only to the exceptions to title
referred to in the Title Policy; ddd) no amounts are due or claimed to be due
by any person or entity for labor performed or materials furnished to any
portion or all of the Property: eee) to the best of Buyer’s knowledge after
diligent inquiry and investigation, Buyer is not in default on any obligations
to any lienholders with any interest or lien in or to any portion or all of the
Property; fff) Buyer covenants and agrees that it shall not default in any way
on any obligations owing to any lienholders (including taxing authorities) with
any interest or lien in or to any portion or all of the Property; ggg) to the
best of Buyer’s knowledge after diligent inquiry and investigation, Buyer and
the Property are in compliance with all applicable zoning ordinances,
government regulations and restrictive covenants affecting the Property; hhh)
the organizational documents governing Buyer are in full force and effect and
have not been amended nor changed except as disclosed in writing to Lender, or
no proceeding is pending, planned or threatened for the dissolution or
annulment of Buyer; iii) Buyer is duly organized and validly existing and in
good standing under the laws of the State of Delaware; jjj) all licenses,
filing fees, income and other taxes due
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and payable by Buyer have been paid in full and Buyer has
all requisite power and governmental certificates of authority, licenses,
permits, qualifications and documentation to own, lease and operate the
Property and to carry on its business as now being, and as proposed to be,
conducted in the State of Michigan; kkk) there is no bankruptcy or receivership
proceeding pending or threatened against Buyer; lll) Buyer has no intention as
of the date of this Agreement to do any of the following within at least 180 days
after said date: i) seek entry of any order for relief as a debtor and a
proceeding under the Code (defined below), ii) seek consent to or not contest
the appointment of a receiver or trustee for itself or for all or any part of
its property, iii) file a petition seeking relief under any bankruptcy,
arrangement, reorganization or other debtor relief laws, or iv) make a general
assignment for the benefit of its creditors, and Lender is entitled to rely,
and has relied, upon this representation and warranty in the execution and
delivery of this Agreement and all other documents and instruments executed and
delivered by Lender in connection with this Agreement; mmm) there are no taxes,
assessments, or levies of any type whatsoever that can be imposed upon and
collected from the Property arising out of or in connection with the ownership
or operation of the Property, or any public improvements in the general
vicinity of the Property other than normal and customary real estate taxes that
are not yet due or payable; nnn) the next payment for real property taxes on
the Property, which will be for such taxes for the calendar year 2004, is due
December 1, 2003; ooo) all insurance required by the Security Documents (the “Required Insurance”) is currently maintained on the
Property and such policy contains the non-contributory New York Standard
Mortgage Clause or its equivalent in favor of Wells Fargo Bank Minnesota, N.A.,
as trustee for the registered holders of Salomon Brothers Mortgage Securities
VII, Inc., Commercial Mortgage Pass-Through Certificates, Series 2001-C2, its
successors and/or assigns, c/o Midland Loan Services, Inc., Master Servicer,
10851 Mastin, Suite 700, Overland Park, Kansas 66210, re: Loan Number
03-0812070; ppp) all insurance premiums on the Required Insurance have been
paid; qqq) the Required Insurance will continue in place after the date the
Property is conveyed to Buyer; rrr) there is no pending or, to the best of
Buyer’s knowledge after diligent inquiry and investigation, threatened action,
suit, claim, litigation, or proceeding by an entity, individual, or
governmental agency affecting the Property which would in any way constitute a
lien, claim, or obligation of any kind against the Property and, to Buyer’s
knowledge after diligent inquiry and investigation, threatened condemnation or
similar proceedings or assessments affecting the Property or any part thereof
nor, to Buyer’s knowledge, are any such assessments or proceedings contemplated
by any governmental authority; sss) to the best of Buyer’s knowledge after
diligent inquiry and investigation, Buyer is not in breach of any law or
regulation, or under any order of any court or federal, state, municipal or
other governmental department, commission, board, bureau, agency, or
instrumentality, wherever located, with respect to the Property or Buyer’s
present use or operation of the Property, of which Buyer has received notice or
otherwise has knowledge thereof; ttt) all representations and warranties
referred to in this Agreement shall be true as of the date of this Agreement
and Closing and shall survive Closing; and uuu) Buyer hereby specifically
ratifies and affirms that it has complied and will continue to comply with the
“Single Purpose Entity” requirements set forth in any of the Loan Documents. None of the representations, warranties,
covenants, agreements and indemnities of Buyer in the Loan Documents or this
Agreement shall be affected by any investigation by or on behalf of Lender or
by any information Lender may have or obtain with respect thereto. Without limiting any of the foregoing, at
all times Buyer shall comply with all terms of the Loan Documents, including
without limitation, the insurance requirements of the Mortgage and any other
Loan Documents. Although Lender may
accept certain evidence of insurance for purposes of closing the loan
assumption transaction contemplated hereby, Lender or its servicer may at any
time and from time to time request additional insurance information from Buyer
to ensure or monitor Buyer’s compliance with the insurance provisions of the
Mortgage and any other Loan Documents and may request that Buyer provide such
coverages as Lender or its servicer may require consistent with the terms of
the Loan Documents. By entering into
this Agreement, Lender specifically does not waive or modify any of the
insurance requirements under the Loan Documents nor any of the remedies
provided therein for failure to secure such required insurance coverage.
13. RELEASE
OF SELLER AND ORIGINAL GUARANTOR.
Subject to Seller’s full performance of all of their respective
obligations hereunder, Lender hereby releases Seller from all liability and
obligations it may now or hereafter have under the Loan Documents accruing on
or after the date hereof, except for vvv) any environmental or other damage to
the Property accruing, occurring or relating to acts or omissions prior to the
Closing; www) obligations arising from the Contract of Sale; xxx) the payment
of taxes accruing prior to the Closing; yyy) fraudulent or tortious conduct
including, but not limited to, intentional misrepresentation of financial
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data presented to Lender; and zzz) any Obligations arising,
accruing or relating to any time prior to the date hereof. Subject to Original Guarantor’s full
performance of all of its obligations hereunder, and effective only upon, and
not before, Guarantor’s acquisition (with Lender’s prior written consent on
terms and conditions acceptable to Lender in its sole and absolute discretion)
of all of the direct or indirect ownership of Buyer (which the Seller, Buyer
and Guarantor anticipate shall occur within fifteen (15) days after the
Closing), Lender hereby releases Original Guarantor from all liability and
obligations it may now or hereafter have under the Loan Documents accruing on
or after the date hereof, except for (i) any environmental or other damage to
the Property accruing, occurring or relating to acts or omissions prior to the
Closing; (ii) obligations arising from the Contract of Sale; (iii) the payment
of taxes accruing prior to the Closing; (iv) fraudulent or tortious conduct
including, but not limited to, intentional misrepresentation of financial data
presented to Lender; and (v) any Obligations arising, accruing or relating to
any time prior to the date hereof.
14. FURTHER
ASSURANCES. Buyer agrees to do any
act or execute any additional documents requested by Lender as may reasonably
be required by Lender to effectuate the purposes of this Agreement or to
perfect or retain its perfected security interest in the Property or the
first-lien priority of any such security interest.
15. INUREMENT;
NO MODIFICATION OF PURCHASE AGREEMENT.
Subject to the qualification contained in Section 5
above, the provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors in
interest and permitted assigns. As
between Buyer and Seller, the rights and obligations of Buyer and Seller under
the Contract of Sale are not modified by this Agreement.
16. GOVERNING
LAW/SEVERABILITY. This Agreement
shall in all respects be governed, construed, applied and enforced in
accordance with the internal laws of the State of Michigan. In the event one or more provisions of the
Agreement shall be invalid, illegal or unenforceable, the validity or
enforceability of the remaining provisions shall not in any way be affected.
17. NO
LEGAL RESTRICTIONS ON PERFORMANCE.
The execution and delivery of this Agreement and compliance with the
provisions hereof will not conflict with, or constitute a breach of or a
default under any agreement or other instrument to which Buyer or Seller is a
party or by which it is bound.
18. MODIFICATIONS. Neither this Agreement, nor any term or
provision hereof, may be changed, discharged or terminated orally, but only by
an instrument in writing signed by the party against whom enforcement of the
change, discharge or termination is sought.
19. RELEASE
AND WAIVER OF CLAIMS. In
consideration of Lender’s agreement to enter into this Agreement, Seller, and
Buyer hereby agree as follows:
A. General Release and Waiver of
Claims. Seller, Original Guarantor,
Buyer and Guarantor (collectively, the “Releasing Parties”)
hereby jointly and severally release and forever discharge Lender and their
respective successors, assigns, partners, directors, officers, agents,
attorneys, administrators, trustees, subsidiaries, affiliates, beneficiaries,
shareholders, representatives, agents, servants and employees from any and all
rights, proceedings, agreements, contracts, judgments, debts, costs, expenses,
promises, duties, claims, demands, cross-actions, controversies, causes of
action, damages, rights, liabilities and obligations, at law or in equity
whatsoever, known or unknown, suspected or unsuspected, choate or inchoate,
whether past, present or future, now held, owned or possessed by, any Releasing
Party (to the extent arising or accruing on or prior to the date hereof), or
which any Releasing Party may hereafter hold or claim to hold from the
beginning of time to the date of this Agreement under common law or statutory
right, known or unknown, arising, directly or indirectly, proximately or
remotely, out of the Property, the Loan or any of the Loan Documents or any of
the documents, instruments or any other transactions relating thereto or the
transactions contemplated thereby including, without limitation, any and all
rights, proceedings, agreements, contracts, judgments, debts, expenses,
promises, duties, claims, demands, cross-actions, controversies, causes of
action, damages, rights, liability and obligations whether based upon tort,
fraud, breach of
8
any duty of fair dealing,
breach of confidence, undue influence, duress, economic coercion, conflict of
interest, negligence, bad faith, intentional or negligent infliction of mental
distress, tortuous interference with contractual relations, tortuous
interference with corporate governance or prospective business advantage,
breach of contract, deceptive trade practices, libel, slander, conspiracy or
any claim for wrongfully accelerating the Note or wrongfully attempting to
foreclose on any collateral relating to the Note, contract or usury, but only
to the extent that the foregoing arise in connection with events which occurred
prior to the date of this Agreement (collectively, the “Released
Claims”). Without
limiting the generality of the foregoing, this release shall include the
following matters: (a) all aspects of
this Agreement, the Note, the Mortgage, and all other Loan Documents, and all
prior negotiations between or on behalf of Buyer and/or Seller and Lender and
the demands and requests by Lender of Seller or Buyer concerning this Agreement
and the other Loan Documents, including, but not limited to, all meetings,
telephone calls, correspondence and/or other contacts among or on behalf of
Buyer and/or Seller and Lender incident to the attempts of said parties to
reach an Agreement, or in connection with the Note, the Mortgage or the other
Loan Documents and the attempt(s) of Lender to collect the Note, and (b) the
exercise by Lender of its rights under any of the Loan Documents or any of its
rights under this Agreement, the Note, the Mortgage or any other Loan Documents
or at law or in equity.
This release is intended to release all liability of
any character claimed for damages, of any type or nature, for injunctive or
other relief, for attorneys’ fees, interest or any other liability whatsoever,
whether statutory, or contractual or tort in character, or of any other nature
or character, now or henceforth in any way related to any and all matters and
dealings of any nature whatsoever asserted or assertable by or on behalf of any
of the Releasing Parties against Lender, including, without limitation, any
loss, cost or damage in connection with, or based upon, any breach of fiduciary
duty, breach of any duty of fair dealing or good faith, breach of confidence,
breach of funding commitment, breach of any other duty, breach of any statutory
right, fraud, usury, undue influence, duress, economic coercion, conflict of
interest, negligence, bad faith, malpractice, violations of the Racketeer
Influenced and Corrupt Organizations Act, intentional or negligent infliction of
mental distress, tortious interference with corporate or other governance or
prospective business advantage, breach of contract, deceptive trade practices,
libel, slander, conspiracy or any other cause of action, but only to the extent
that the foregoing arise in connection with events which occurred prior to the
date of execution hereof.
The Releasing Parties each understand and agree that
this is a full, final and complete release and agree that this release may be
pleaded as an absolute and final bar to any or all suit or suits pending or
which may thereafter be filed or prosecuted by any of the Releasing Parties, or
anyone claiming by, through or under any of the Releasing Parties, in respect
of any of the matters released hereby, and that no recovery on account of the
matters described herein may hereafter be had from anyone whomsoever, and that
the consideration given for this release is no admission of liability and that
no Releasing Party, nor those claiming under it will ever claim that it is.
B. Releases Binding on Affiliates of
Releasing Parties. The provisions,
waivers and releases set forth are binding upon each Releasing Party and their
respective agents, employees, representatives, officers, directors, general
partners, limited partners, joint shareholders, beneficiaries, trustees,
administrators, subsidiaries, affiliates, employees, servants and attorneys.
20. BOOKS
AND RECORDS. Without limiting any
other provision of this Agreement, Buyer and Guarantor acknowledge and affirm
their respective obligations under Section 10 of the Mortgage.
21. NOTICES. All notices to Lender, Seller, or Buyer in
connection with this Agreement shall be in writing and shall be addressed to
the intended recipient thereof at its address as set forth below their
signature on this Agreement (or at such other address as such party may
designate in writing from time to time by notice given to Seller, Buyer or
Lender). Additionally, any addresses
for notices to the borrower under any of the Loan Documents is supplemented to
include Buyer at its address set forth below its signature on this
Agreement. All notices given to any
party of this transaction shall be deemed effectively given i) upon personal
delivery of any such notice to the premises of the intended recipient as
required above or as most recently designated by such intended recipient as
provided herein; or ii) two (2) business days following the deposit of an
envelope containing such notice in the
9
United States mail, sent by certified mail, postage
pre-paid and addressed to the intended recipient as set forth above or, as most
recently designated, by the intended recipients as provided herein.
22. BUYER’S
SPECIFIC RATIFICATION, REAFFIRMATION AND CONFIRMATION OF LOAN DOCUMENTS. Buyer agrees to perform each and every
obligation under the Loan Documents in accordance with their respective terms
and conditions. It is expressly
understood that Lender will hereafter require performance of any and all terms,
conditions, or requirements of all documents and agreements executed by Buyer
relating to the Loan Documents. Buyer acknowledges and agrees that any
performance or non-performance of the Loan Documents prior to the Effective
Date does not affect or diminish in any way the requirement of compliance with
the Loan Documents. Buyer further
acknowledges and agrees that the validity or priority of the liens and security
interests evidenced by any of the Security Documents are not diminished in any
way by this Agreement and that the Mortgage continues to be a first and
superior mortgage lien and security interest on the Property. The agreements and obligations of Buyer
under the Loan Documents are hereby ratified, brought forward, renewed and
extended until the Loan shall have been fully paid and discharged. Buyer hereby ratifies, affirms, reaffirms,
acknowledges, confirms and agrees that the Loan Documents represent the valid,
binding and enforceable obligations of Buyer.
Lender and Buyer hereby agree that this Agreement and the Loan
Documents, as applicable are in full force and effect so that nothing contained
herein shall be construed as modifying in any manner the Loan Documents. Buyer
specifically extends the liens and security interests of the Security Documents
and agrees that the Security Documents aaaa) shall cover the Loan, and bbbb)
shall continue to be in full force and effect until the Loan is paid in full
and all other obligations under the Loan Documents are fully performed and
satisfied. Buyer hereby agrees that
this Agreement in no way acts as a diminishment, impairment, release or
relinquishment of the liens, power, title, security interest and rights
securing or guaranteeing payment of the Loan.
The Security Documents are hereby renewed, extended, ratified, confirmed
and carried forward by Buyer in all respects.
Nothing contained herein shall be construed as a waiver of any rights,
remedies, or recourses available to Lender with respect to any default by Buyer
under this Agreement or any of the Loan Documents, as applicable. Except as otherwise provided herein, Lender
hereby preserves all of its rights against Buyer, and all its collateral,
including, without limitation, the Property.
23. PROHIBITED
TRANSFERS. Buyer and Guarantor
hereby acknowledge and affirm all of the terms, provisions, conditions,
covenants and restrictions set forth in Section 15 of the Mortgage.
24. NO
JURY TRIAL.
SELLER, BUYER, ORIGINAL GUARANTOR, GUARANTOR AND LENDER HEREBY
SEVERALLY, VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY WAIVE ANY AND ALL RIGHTS TO
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THE NOTE,
MORTGAGE OR ANY OTHER LOAN DOCUMENT OR CONCERNING THE OBLIGATIONS UNDER THE
LOAN DOCUMENTS AND/OR WITH REGARD TO THE PROPERTY OR PERTAINING TO ANY TRANSACTION
RELATED TO OR CONTEMPLATED IN THE MORTGAGE, REGARDLESS OF WHETHER SUCH ACTION
OR PROCEEDING CONCERNS ANY CONTRACTUAL OR TORTUOUS OR OTHER CLAIM, SELLER AND
BUYER ACKNOWLEDGE THAT THIS WAIVER OF JURY TRIAL IS A MATERIAL INDUCEMENT TO
LENDER IN EXTENDING THE CREDIT DESCRIBED HEREIN, THAT LENDER WOULD NOT HAVE
EXTENDED SUCH CREDIT WITHOUT THIS JURY TRIAL WAIVER, AND THE SELLER HAS BEEN
REPRESENTED BY AN ATTORNEY OR HAS HAD AN OPPORTUNITY TO CONSULT WITH AN
ATTORNEY IN CONNECTION WITH THE MORTGAGE AND UNDERSTANDS THE LEGAL EFFECT OF
THIS JURY TRIAL WAIVER.
25. HEADINGS. The section headings contained herein are
intended for convenience of reference and shall not be deemed to define, limit
or describe the scope or intent of the respective provisions of this Agreement.
26. BANKRUPTCY
OF BUYER. Buyer as a material
inducement to Lender to enter into this Agreement, and in consideration of the
mutual covenants contained in this Agreement, and for other good and valuable
consideration, by its execution hereof covenants and agrees that in the event
Buyer shall cccc) file any
10
petition with any bankruptcy court or be the subject of any
petition under the United States Bankruptcy Code (11 U.S.C. §101 et seq., the “Code”), dddd) file or be the subject of any petition
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any present or future federal
or state act or law relating to bankruptcy, insolvency, or other relief for
debtors, eeee) have sought or consented to or acquiesced in the appointment of
any trustee, receiver, conservator, or liquidator, or ffff) be the subject of
any order, judgment, or decree entered by any court of competent jurisdiction
approving a petition filed against such party for any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any present or future federal or state act or law relating to
bankruptcy, insolvency, or relief for debtors, Lender shall thereupon be
entitled, and Buyer irrevocably consents, to the entry of an order by a
bankruptcy court granting to Lender relief from any automatic stay imposed by
Section 362 of the Code, or otherwise, on or against the exercise of the rights
and remedies otherwise available to Lender as provided in the Loan Documents,
this Agreement or as otherwise provided by law or in equity, and Buyer hereby
irrevocably waives its right to object to, attempt to enjoin or otherwise interfere
with such relief and the exercise and enforcement by Lender of its rights and
remedies following entry of such order.
Without limiting the generality of the immediately preceding sentence,
Buyer agrees that Lender will be entitled to and hereby consents to immediate
relief from the automatic stay imposed by the Code to allow Lender to take any
and all actions necessary, desirable or appropriate to enforce any rights
Lender may have under the Loan Documents, including, but not limited to, the
right to possession of the Property, collection of rents, and/or the
commencement or continuation of an action to foreclose Lender’s liens and
security interests. Buyer further
agrees that the filing of any petition for relief under the Code which
postpones, prevents, delays, or otherwise hinders Lender’s efforts to collect
the amounts due under the Note or to liquidate any of the collateral therefor
shall be deemed to have been filed in bad faith and, therefore, shall be
subject to prompt dismissal or conversion to a case under Chapter 7 of the Code
upon motion therefor by Lender.
Further, Buyer agrees that it will not seek, apply for or cause the
entry of any order enjoining, staying, or otherwise prohibiting or interfering
with Lender’s obtaining an order granting relief from the automatic stay and
enforcement of any rights which Lender may have under the Loan Documents,
including, but not limited to, Lender’s right to possession of the Property,
collection of rents and/or the commencement or continuation of an action to
foreclose Lender’s liens and security interests under the Loan Documents.
27. COMPLIANCE
WITH INTEREST LAW. It is the
intention of Seller, Original Guarantor, Buyer, Guarantor and Lender to conform
strictly to the Interest Law (herein defined). Accordingly, Buyer and Lender agree that any provisions contained
in the Note or in any of the other Loan Documents to the contrary
notwithstanding, the aggregate of all interest, or consideration constituting
interest under the Interest Law, that is taken, reserved, contracted for,
charged or received under the Note or under any of the aforesaid documents or
otherwise in connection with this loan transaction shall under no circumstances
exceed the maximum amount of interest allowed by the Interest Law. If any excess interest is provided for in
the Note or in any of the other Loan Documents, then i) the provisions of this
paragraph shall govern and control, ii) neither Buyer nor Buyer’s successors or
assigns shall be obligated to pay the amount of such interest to the extent
that it is in excess of the maximum amount of interest allowed by the Interest
Law, iii) any such excess shall be deemed a mistake and canceled automatically
and, if theretofore paid, shall be credited against the Indebtedness (or if the
Note shall have been paid in full, refunded to Buyer), and iv) the effective
rate of interest shall be automatically subject to reduction to the Maximum
Legal Rate of Interest (as hereinafter defined). To the extent permitted by the Interest Law, all sums paid or
agreed to be paid to Lender for the use, forbearance, or detention of the
Indebtedness shall be amortized, prorated, allocated and spread throughout the
full term of the Note. For purposes of
the Note, “Interest
Law”
shall mean any present or future law of the State of Michigan (meaning the
internal laws of said state and not the laws of said state relating to choice
of law), the United States of America or any other jurisdiction, which has
application to the interest and other charges under the Note or under any of
the other Loan Documents and to the classification of Buyer under such
law. For purposes of the Note, the “Maximum Legal Rate of Interest” shall mean the
maximum effective contract rate of interest that Lender may from time to time, by
agreement with the Buyer, legally charge Buyer and in regard to which Buyer
would be prevented from successfully raising the claim or defense of usury
under the Interest Law as now or hereafter construed by courts of appropriate
jurisdiction.
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28. TERMS
GENERALLY. gggg) Each definition
contained in this or any other Article of this Agreement shall apply equally to
both the singular and plural form of the term defined. Each pronoun shall include the masculine,
the feminine and neuter form, whichever is appropriate to the context. The words “included”, “includes” and
“including” shall each be deemed to be followed by the phrase, “without
limitation.” The words, “herein”,
“hereby”, “hereof”, and “hereunder” shall each be deemed to refer to this
entire Agreement and not to any particular Article or Section hereof. Not withstanding the foregoing, if any law
is amended so as to broaden the meaning of any term defined in it, such broader
meaning shall apply subsequent to the effective date of such amendment. Where a defined term derives its meaning
from a statutory reference, any regulatory definition is broader than the
statutory reference and any reference or citation to a statute or regulation
shall be deemed to include any amendments to that statute or regulation and
judicial and administrative interpretations of it; and hhhh) the following
terms shall have the respective meanings ascribed to them in the Uniform
Commercial Code as enacted and in force in the State of Michigan:
accessions, accounts continuation statement,
equipment, financing statement, fixtures, general intangibles, personal
property, proceeds, security interest and security agreement.
29. SECURITIES
ACT OF 1933. Neither the Buyer nor
any agent acting for it has offered the Note or any similar obligation of the
Buyer for sale to or solicited any offers to buy the Note or any similar
obligation of the Buyer from any person or party other than Lender, and neither
the Buyer nor any agent acting for it will take any action which would subject
the sale of the Note to the provisions of Section 5 of the Securities Act of
1933, as amended.
30. COMPLIANCE
WITH ERISA. As of the date of this
Agreement, the Buyer maintains no employee benefit plans which require
compliance with ERISA. If at any time
the Buyer shall institute any employee benefit plans, the Buyer shall at all
times comply with the requirements of ERISA.
31. DOCUMENTATION
REQUIREMENTS, SUFFICIENCY OF CONSENTS AND APPROVALS. Each written instrument required by this
Agreement or any of the other Loan Documents to be furnished to Lender shall be
duly executed by the person or party specified (or where no particular person
or party is specified, by such person or party as Lender shall require), duly
acknowledged where required by Lender and, in the case of affidavits and
similar sworn instruments, duly sworn to and subscribed before a notary public
duly authorized to act in the premises by governmental authority; shall be
furnished to Lender in one or more copies as required by Lender; and shall in
all respects be in form and substance reasonably satisfactory to Lender and its
legal counsel. All title policies,
surveys, appraisals, and other evidence, information or documentation required
by Lender shall be in form and substance reasonably satisfactory to Lender and
its legal counsel in all respects.
32. EVIDENTIARY
REQUIREMENTS. Where evidence of the
existence or non-existence of any circumstance or condition is required by this
Agreement or any of the other Loan Documents to be furnished to Lender, such
evidence shall in all respects be in form and substance reasonably satisfactory
to Lender, and the duty to furnish such evidence shall not be considered
satisfied until Lender shall have acknowledged in writing that it is satisfied
therewith.
33. NUMBER,
ORDER AND CAPTIONS IMMATERIAL. The
numbering, order and captions or headings of the several articles, sections and
paragraphs of this Agreement, the Note, the
Mortgage and the other Loan Documents are for convenience of reference
only and shall not be considered in construing such instruments.
34. ENTIRE
AGREEMENT. THIS
AGREEMENT AND THE LOAN DOCUMENTS CONTAIN THE ENTIRE AGREEMENT OF THE PARTIES
HERETO WITH RESPECT TO THE ASSUMPTION OF THE LOAN BY BUYER AND LENDER’S CONSENT
TO THE TRANSFER OF THE PROPERTY TO BUYER, AND SUPERSEDES ANY PRIOR WRITTEN OR
ORAL AGREEMENTS BETWEEN THEM CONCERNING SAID SUBJECT MATTER. THERE ARE NO REPRESENTATIONS,
12
AGREEMENTS,
ARRANGEMENTS, OR UNDERSTANDINGS, ORAL OR WRITTEN, BETWEEN AND AMONG THE PARTIES
HERETO, RELATING TO THE SUBJECT MATTER CONTAINED IN THE AGREEMENT, WHICH ARE
NOT FULLY EXPRESSED HEREIN OR IN THE LOAN DOCUMENTS. THIS AGREEMENT MAY NOT BE MODIFIED OR AMENDED EXCEPT AS AN
INSTRUMENT IN WRITING SIGNED BY ALL THE PARTIES HERETO. THIS AGREEMENT MAY BE EXECUTED AND
ACKNOWLEDGED IN MULTIPLE COUNTERPARTS FOR THE CONVENIENCE OF THE PARTIES, WHICH
TOGETHER SHALL CONSTITUTE ONE AGREEMENT, AND THE COUNTERPART SIGNATURE AND
ACKNOWLEDGMENT PAGES MAY BE DETACHED FROM THE VARIOUS COUNTERPARTS AND ATTACHED
TO ONE COPY OF THIS AGREEMENT TO SIMPLIFY THE RECORDATION OF THIS
AGREEMENT. THE REPRESENTATIONS, WARRANTIES,
AND COVENANTS OF THIS AGREEMENT SHALL CONTINUE AND SURVIVE THE TRANSFER OF THE
PROPERTY TO BUYER.
[Signatures and
acknowledgments begin on the following page]
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SELLER:
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LAKESHORE
MARKETPLACE, LLC, a Delaware limited
liability company
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By:
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Name:
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Authorized
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Tax ID #:
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Mailing
Address:
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5000 Hakes
Drive
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Muskegon,
Michigan 49441
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ORIGINAL GUARANTOR:
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LAKESHORE MARKETPLACE FINANCE COMPANY,
INC., a Delaware corporation
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By:
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Name:
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Authorized
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Tax ID #:
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Mailing
Address:
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5000 Hakes
Drive
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Muskegon,
Michigan 49441
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HORIZON GROUP PROPERTIES, L.P., a Delaware limited
partnership
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By:
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Horizon
Group Properties, Inc., a Delaware
corporation, its general partner
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By:
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Name:
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Authorized
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Tax ID #:
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Mailing
Address:
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5000 Hakes
Drive
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Muskegon,
Michigan 49441
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HORIZON GROUP PROPERTIES, INC., a Delaware
corporation
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By:
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Name:
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Authorized
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Tax ID #:
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Mailing
Address:
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5000 Hakes
Drive
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Muskegon,
Michigan 49441
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BUYER:
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RAMCO
LAKESHORE LLC,
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a Delaware
limited liability company
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By:
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Ramco
Lakeshore Manager, Inc., a Michigan
corporation, its managing member
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By:
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Name:
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Title:
Authorized
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Tax ID #:
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Mailing
Address:
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27600
Northwestern Highway, Suite 200
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Southfield,
Michigan 48034
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GUARANTOR:
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RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware
limited partnership
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By:
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Ramco-Gershenson
Properties Trust, a Maryland
real estate investment trust, its general partner
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By:
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Name:
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Authorized
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Tax ID #:
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Mailing
Address:
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27600
Northwestern Highway, Suite 200
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Southfield,
Michigan 48034
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LENDER:
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WELLS FARGO
BANK MINNESOTA, N.A., as trustee for
the registered holders of Salomon Brothers Mortgage
Securities VII, Inc., Commercial Mortgage Pass-Through
Certificates, Series 2001-C2
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By:
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Midland Loan
Services, Inc.,
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Its
Attorney-in-Fact
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By:
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Name:
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Title:
Executive Vice President
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Mailing
Address:
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10851
Mastin, Suite 700
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Overland
Park, Kansas 66210
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EXHIBIT A
Property Description
(See Attached)
18