EXHIBIT 10.25
WHEN RECORDED MAIL TO:
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
LOAN ASSUMPTION AND RATIFICATION AGREEMENT
THIS LOAN ASSUMPTION AND RATIFICATION AGREEMENT (this "AGREEMENT"),
made as of June __, 2004, by and among BEHRINGER HARVARD ST. LOUIS PLACE S, LLC,
a Delaware limited liability company, having an address at 0000 Xxxxx Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, ("TIC II"), and _________1 ("ADDED
BORROWER") in favor of GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a Delaware
corporation, having an address at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000 (together with its successors and assigns, "LENDER").
W I T N E S S E T H:
WHEREAS, on June ___, 2004 (the "CLOSING DATE"), Lender extended a loan
to BEHRINGER HARVARD ST. LOUIS PLACE S, LLC and BEHRINGER HARVARD ST. LOUIS
PLACE H, LLC (collectively, the "ORIGINAL BORROWER") in the original principal
amount of [$20,000,000] (the "LOAN").
WHEREAS, the Loan is evidenced by (i) that certain Loan Agreement dated
as of the Closing Date (the "LOAN AGREEMENT") and (ii) that certain Note, dated
as of the Closing Date, made by Original Borrower in favor of Lender (the
"NOTE"). Capitalized terms used herein without definition shall have the
meanings set forth in the Loan Agreement.
WHEREAS, the Loan is secured by, among other things, (i) that certain
Deed of Trust, Assignment of Rents, and Security Agreement (the "MORTGAGE"),
dated as of the Closing Date, given by Original Borrower to Lender, as
beneficiary, recorded in the Recorder's Office of Saint Louis County, Missouri,
encumbering fee simple title to certain parcels of real property described on
EXHIBIT A attached hereto, together with all improvements thereon and certain
other property described in the Mortgage (collectively, the "PROPERTY"), and
(ii) the documents and instruments listed on Exhibit B attached hereto and made
a part hereof (the Loan Agreement, the Note, the Mortgage, the other documents
and instruments listed on EXHIBIT B, together with any other documents and
instruments relating to the Loan, whether now or hereafter existing, as the same
from time may to time may be amended, extended, consolidated, renewed or
replaced, collectively, the "LOAN DOCUMENTS").
WHEREAS, The Loan Agreement contemplates that, from time to time, TIC
II will sell or otherwise convey portions of its tenant in common interests in
the Property (a
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1 Insert name of Added Borrower.
"TENANT-IN-COMMON TRANSFER"), provided that prior to or concurrently with the
effective date of said Tenant in Common Transfer, the transferee (a
"TENANT-IN-COMMON TRANSFEREE") shall become "Borrower," and shall become part of
the collective "Borrower," under and as defined in the Loan Documents
(individually and collectively, "BORROWER"), assume, on a joint and several
basis, all of the obligations of Borrower under the Loan Documents and execute
and deliver to Lender an assumption agreement in the form of this Agreement.
WHEREAS, as used herein, "EXISTING BORROWER" means, collectively, the
Original Borrower, and any and all Tenant in Common Transferees under Tenant in
Common Transfers occurring prior to or contemporaneously with the Tenant in
Common Transfer pursuant to which Added Borrower is to become a Tenant in Common
Transferee and a Borrower.
WHEREAS, TIC II desires to transfer an undivided ((FIELD2))2 tenant in
common interest in the Property to Added Borrower and Lender consents to such
transfer and permits Added Borrower to become a Tenant in Common Transferree and
to assume, on a joint and several basis, the obligations of Existing Borrower
under the Loan Documents as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby covenant and agree as follows:
1. CONSENT TO TRANSFER OF TENANT IN COMMON INTEREST THE PROPERTY.
Lender hereby consents, pursuant to the provisions of any of the Loan Documents
requiring Lender's consent, to the transfer of an undivided ((FIELD2))3 tenant
in common interest in the Property from TIC II to Added Borrower.
2. ASSUMPTION OF LOAN. Added Borrower hereby assumes and agrees on a
joint and several basis, for the benefit of Lender and its successors and
assigns, to be bound by, observe and perform, all past (to the extent
unsatisfied), present and future liabilities, terms, provisions, covenants and
obligations of Existing Borrower under the Loan Documents, and Added Borrower
agrees that it will be bound by all of such terms and provisions, promptly pay
all such liabilities and promptly observe and perform all such covenants and
obligations, with the same force and effect as if Added Borrower had originally
executed and delivered the Loan Documents together with Original Borrower. All
of the recitals, terms, waivers and conditions of the Loan Documents are
incorporated herein by this reference, to the same extent and with the same
effect as if Added Borrower were an original party to each Loan Document
together with Existing Borrower. Reference in any Loan Document to Borrower or
Borrowers, therefore, henceforth shall be deemed to also be a reference to Added
Borrower. Added Borrower acknowledges and agrees that the Liens created by the
Mortgage and the other Loan Documents
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2 Insert percentage of tenant-in-common interest.
3. Insert percentage of tenant-in-common interest.
2
creating Liens or security interests encumber any and all property of Added
Borrower relating to the Property, whether now owned or hereafter acquired and
whether now existing or hereafter arising, and any and all proceeds and products
thereof and additions and accessions thereto. In confirmation and furtherance of
the foregoing, to secure the full and prompt payment and performance of the Debt
and all other obligations under the Loan Documents, Added Borrower hereby (i)
deeds, mortgages, grants, bargains, pledges, assigns and hypothecates unto the
Trustee, in trust, with power of sale, for the benefit of the Lender, all of its
right, title and interest in the Property, and (ii) grants to Lender a
continuing, first priority security interest in any portion of the Property
constituting personal property. This Agreement shall not be construed as a
subordination to any lien or obligation occurring subsequent to the date of
recordation of the Mortgage. All agreements and understandings between Added
Borrower, TIC II and Lender are expressed and embodied in this Agreement, the
Loan Agreement, the Note and other Loan Documents.
3. AGREEMENTS OF ADDED BORROWER AND TIC II. Each of TIC II and Added
Borrower hereby acknowledges and agrees that:
a. all of the terms, provisions, covenants, representations,
warranties, conditions and stipulations contained in the Loan Documents, and all
of Added Borrower's obligations under the Loan Documents, as assumed hereunder,
are true and correct and are hereby ratified and confirmed by Added Borrower in
all respects, and shall continue to apply with full force and effect to Added
Borrower from and after the date hereof;
b. all of the representations and warranties made by Borrowers
under the Loan Documents shall be deemed to be remade by Added Borrower (to the
best of Added Borrower's knowledge) as of the date hereof with respect to all
matters specified therein and with respect to this Agreement fully as if set
forth herein, all of which, to Added Borrower's best knowledge, remain true and
correct;
c. as of the date hereof, the obligations of Added Borrower
under the Loan Documents, as assumed hereunder, are not subject to any
reduction, limitation, impairment or termination for any reason, including,
without limitation, any claim of waiver, release, surrender or compromise;
d. other than any consent provided in this Agreement and the
Loan Agreement, no consent to the transfer of the tenant in common interest in
the Property to Added Borrower is required under any agreement to which Added
Borrower or Original Borrower is a party (or if any such consent is required,
such consent has been obtained);
e. Lender's consent with respect to the transfer of a 4 tenant
in common interest to Added Borrower is expressly subject to the satisfaction of
all conditions precedent set forth in Section 5.26.2 of the Loan Agreement.
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4 Interest percentage of tenant-in-common interest.
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4. SAME INDEBTEDNESS; PRIORITY OF LIENS NOT AFFECTED. This Agreement
and the execution of other documents contemplated hereby do not constitute the
creation of a new debt or the extinguishment of the Debt evidenced by the Loan
Documents, nor will they in any way affect or impair the Liens and security
interests created by the Loan Documents, which Added Borrower acknowledges to be
valid and existing Liens on and security interests in the Property. Added
Borrower agrees that the Lien and security interests created by the Mortgage
continue to be in full force and effect, unaffected and unimpaired by this
Agreement or by the transfer of the tenant in common interest in the Property or
any collateral described in financing statements filed in connection with the
Loan Documents and that said Liens and security interests shall so continue in
their perfection and priority until the Debt secured by the Loan Documents is
fully discharged.
5. KNOWLEDGE OF LOAN DOCUMENTS. Added Borrower represents and warrants
that (i) Added Borrower has received copies of, has read and has personal
knowledge of all of the terms and conditions of all of the Loan Documents, (ii)
TIC II and Added Borrower, respectively, have each had full benefit and advice
of counsel of its own selection, or the opportunity to obtain the benefit and
advice of counsel of its own selection, in regard to understanding the terms,
meaning and effect of this Agreement, (iii) the execution of this Agreement by
TIC II and Added Borrower, respectively, is done freely, voluntarily, with full
knowledge, and relying on no representations either written or oral, express or
implied, made to TIC II or Added Borrower, respectively, by any other party
hereto, and that the consideration received hereunder by TIC II and Added
Borrower, respectively, has been actual and adequate and (iv) Lender has no
obligation or duty to provide to Added Borrower any copies of any Loan Documents
or any information regarding any of the terms and conditions of any of the Loan
Documents. Added Borrower further understands, acknowledges and agrees that,
except as expressly provided in a writing executed by Lender, if any, Lender has
not waived any right or remedy of Lender or any liability or obligation of TIC
II, any Guarantor or any indemnitor under any of the Loan Documents and Lender
has not agreed to any modification of any provision of any Loan Documents or to
any extension of the Loan.
6. REPRESENTATIONS AND WARRANTIES OF ADDED BORROWER REGARDING FINANCIAL
INFORMATION. Added Borrower represents and warrants that (a) it has previously
furnished or is furnishing herewith true, complete and correct copies of the
information required under Section 5.26.2(b)(2) of the Loan Agreement (the
"FINANCIAL Information"); (b) no material adverse change in the financial
condition of Added Borrower or any member of Added Borrower or its TIC Owner has
occurred since the respective dates of such Financial Information; (c) there are
no loans payable by Added Borrower to any shareholder, partner, trustee, member
or beneficiary, as applicable, of Added Borrower; and (d) Added Borrower is not
in default under any other loan of Added Borrower in favor of any other lender
(it being understood and agreed that this clause (d) shall not be construed to
allow Added Borrower to have any indebtedness except for any Permitted
Indebtedness expressly permitted by Section 5.22 of the Loan Agreement).
7. REPRESENTATIONS AND WARRANTIES REGARDING LOAN DOCUMENTS. TIC II and
Added Borrower (to the best of Added Borrower's knowledge) hereby represent and
warrant to Lender that (i) no Event of Default, breach or failure of condition
has occurred, or would exist with notice or the lapse of time or both, under any
of the Loan Documents and (ii) TIC II and Added Borrower have no knowledge of
any act or omission on the part of Lender that constitutes
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a default by Lender under the Loan Documents or would constitute a default by
Lender with notice or the lapse of time or both, under any of the Loan
Documents.
8. ADDITIONAL REPRESENTATIONS AND WARRANTIES REGARDING LOAN DOCUMENTS.
TIC II and Added Borrower (to the best of Added Borrower's knowledge) each
acknowledge and agree that, as of the date of this Agreement: (i) Lender has
fully complied with all of its obligations under the Loan Documents; (ii) TIC II
and Added Borrower have no knowledge of any fact or circumstance that would
prevent or prohibit Lender from enforcing the Loan Documents, and (iii) TIC II
and Added Borrower have no claims, demands, damages, suits, cross-complaints,
causes of action or debts of any kind or nature whatsoever arising out of or
relating to any of the Loan Documents that can be asserted to reduce or
eliminate all or any portion of its obligation to repay the Note or to seek any
affirmative relief from Lender. As additional consideration for the consent of
Lender to the transfer of the Property, TIC II and Added Borrower hereby release
and forever discharge, and agree to indemnify and hold harmless, Lender and its
agents, servants, employees, directors, officers, attorneys, branches,
affiliates, subsidiaries, successors and assigns and all persons, firms,
corporations, and organizations acting in its behalf, of and from all damages,
losses, claims, demands, liabilities, obligations, actions and causes of action
whatsoever which either TIC II or Added Borrower, or any of them, may now have
or claim to have against Lender as of the date of this Agreement (or the date of
such parties execution hereof), and whether presently known or unknown, and of
every nature and extent whatsoever on account of or in any way concerning,
arising out of or founded upon (i) this Agreement (or any other assumption
agreement), the Property, the Tenant in Common Agreement, the Loan, the Note or
any other of the Loan Documents, including, but not limited to, all such loss or
damage of any kind heretofore sustained or that may arise as a consequence of
the dealings between the parties up to the date of this Agreement, (ii) the
addition of other tenants in common as owners of the Property, and (iii) the
assumption of the Loan by any other tenant in common.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING TENANT IN COMMON
AGREEMENT. Without limiting any of the provisions contained herein or in the
Loan Documents, each of TIC II and Added Borrower (i) represent and warrant that
the representations and warranties set forth in Section 4.24 of the Loan
Agreement are true and correct as of the date hereof and (ii) covenant and agree
to be bound by the covenants and agreements set forth in Sections 5.31 and 10.22
of the Loan Agreement.
10. BORROWER WAIVER. Added Borrower and TIC II hereby each represent
and warrant to Lender that it has no claims, including, without limitation,
counterclaims, against Lender, and no defenses or offsets, including, without
limitation, affirmative defenses, against any of the obligations under the Loan
Documents, and hereby waives and forever releases and discharges Lender from any
and all claims, counterclaims, defenses, affirmative defenses and offsets, known
or unknown, existing as of the date hereof or hereafter arising out of facts or
circumstances existing or out of occurrences that have occurred by the date
hereof. Added Borrower hereby forever waives and discharges Lender from any and
all claims, counterclaims, defenses, affirmative defenses and offsets arising in
connection with or resulting from any Tenant in Common Transfer occurring
subsequent to or contemporaneously with the Tenant in Common Transfer to Added
Borrower or the execution by Lender of any agreement similar to this agreement
with any Tenant in Common Transferee under any such subsequent or
5
contemporaneous Tenant in Common Transfer. In no event shall this Section 10 be
deemed to imply that any claim, counterclaim, defense, affirmative defense or
offset referred to herein exists.
11. LIMITED RECOURSE. Section 10.1 of the Loan Agreement provides
certain limitations on the personal liability of Borrower for the obligations of
Borrowers contained in the Loan Documents and certain carve-outs and exceptions
to such limitations. Without limiting any other provision hereof, the parties
acknowledge that the provisions of such Section 10.1 shall apply to this
Agreement.
12. CONFIRMATION OF GUARANTIES. None of the transfer of any Tenant in
Common interest to Added Borrower, the assumption by Added Borrower of the
obligations of Borrower, the execution and delivery by Added Borrower's TIC
Owner of the Guaranty of Recourse Obligations is intended to or shall be
construed to terminate, release, reduce or limit in any way the obligations and
liabilities of any guarantor or indemnitor under any Guaranty of Recourse
Obligations executed prior to or contemporaneously with the execution hereof,
all of which remain in full force and effect.
13. ACKNOWLEDGEMENT OF FUTURE AND CONTEMPORANEOUS TENANT IN COMMON
TRANSFEREES. Added Borrower hereby acknowledges and agrees that the Loan
Agreement contemplates that there may be Tenant in Common Transfers made prior
to, contemporaneously with or subsequent to the Tenant in Common Transfer being
made to Added Borrower, and that all of the Tenant in Common Transferees
thereunder shall become Borrowers under loan assumption agreements substantially
the same as this Agreement. Added Borrower hereby acknowledges and agrees that
no such transfer and no assumption of the obligations of Borrowers under any
such loan assumption agreement shall in any way terminate, release, reduce,
limit or impair any of Added Borrower's liabilities and obligations hereunder
and under the Loan Documents, and hereby agrees that its liability and
obligation for the payment and performance of any and all of the Borrowers'
obligations is and shall be joint and several with that of Existing Borrower and
all future Tenant in Common Transferees. Nothing in this Section 13 shall be
deemed to imply that any consent of Added Borrower to any Tenant in Common
Transfer or assumption of the Borrowers' obligations by any Tenant in Common
Transferee is required under any Loan Document, and the parties hereby expressly
agree that no such consent is required.
14. AUTHORITY TO ENTER THIS AGREEMENT. TIC II and Added Borrower, and
any party executing this Agreement on their behalf, hereby represent and warrant
that all of the information and materials furnished to Lender by any of them or
their respective employees, agents or representatives in the course of obtaining
Lender's consent to the transfer of the Property are true, correct and complete
and that the parties executing this document each have full power and authority
to execute and deliver this Agreement on behalf of TIC II and Added Borrower,
respectively, as well as all other instruments and documents as may be required
hereafter pursuant to this Agreement or the Loan Documents.
15. ADDITIONAL DOCUMENTS. TIC II and Added Borrower agree to execute
and deliver any and all additional instruments and documents reasonably
requested by Lender or necessary to further evidence and perfect the terms,
covenants, conditions, agreements and
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obligations of this Agreement and the transactions contemplated hereby,
including, without limitation, contribution agreements, amendments to existing
UCC financing statements and/or new financing statements, and any documents or
instruments reasonably required by any Rating Agencies or reasonably required by
the title insurance company in connection with Lender's policy of title
insurance.
16. REFERENCES TO LOAN DOCUMENTS. From and after the execution hereof,
this Agreement shall constitute a Loan Document and all references to the Loan
Documents (no matter how denominated), wherever contained, shall be deemed to
include, without limitation, this Agreement.
17. FULL FORCE AND EFFECT. The Loan Documents, as assumed hereby,
remain unmodified and in full force and effect.
18. NOTICE. Any notice, demand or other communication required or
permitted to be given to any party under this Agreement shall be given as
provided in and shall be effective in accordance with Sections 6.1 and 10.22 of
the Loan Agreement. Without limiting the foregoing, Added Borrower's address for
any such notice, demand or other communication shall be the notice address
specified for Borrower in such Sections 6.1 and 10.22.
19. JOINT AND SEVERAL. If Added Borrower consists of more than one
Person, then the obligations and liabilities of each such Person hereunder shall
be joint and several.
20. GENERAL PROVISIONS.
a. DEFINITION OF LOAN DOCUMENTS. Each of the Loan Documents is
hereby modified to the extent necessary so that the term "Loan Documents," as
such term may be used therein, shall be deemed to include this Agreement.
b. RIGHTS CUMULATIVE. Except as specifically set forth herein,
Lender's rights under this Agreement shall be in addition to all of the rights
of Lender under the Loan Agreement and the other Loan Documents.
c. METHODS OF ENFORCEMENT. This Agreement is subject to
enforcement by Lender at law or in equity, including, without limitation,
actions for damages or specific performance.
d. COSTS OF ENFORCEMENT. In the event that Lender shall retain
the services of an attorney or any other consultants in order to enforce this
Agreement, or any portion hereof, Added Borrower agrees to pay to Lender any and
all costs and expenses, including, without limitation, reasonable attorneys'
fees, costs and disbursements, incurred by Lender as a result thereof.
e. FURTHER ASSURANCES. Each of TIC II and Added Borrower agrees
to execute and deliver all such documents and instruments, and do all such other
acts and things, as may be reasonably required by Lender in the future to
perfect, assure, confirm or effectuate the assignment by TIC II and the
assumption by Added Borrower contemplated by and set forth in this Agreement.
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f. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which shall be an original and all of which, when taken
together, shall constitute one instrument notwithstanding that all parties have
not executed the same counterpart.
g. RELIANCE. Lender would not have consented to the transfer
of the Property and the other transactions specified herein without Added
Borrower and TIC II entering into this Agreement. Accordingly, Added Borrower
and TIC II intentionally and unconditionally enter into the covenants and
agreements as set forth above and understand that, in reliance upon and in
consideration of such covenants and agreements, Lender has consented to the
transfer of the Property and assumption of the Loan and, as part and parcel
thereof, specific monetary and other obligations have been, are being and shall
be entered into which would not take place but for such reliance.
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IN WITNESS WHEREOF, the parties hereto have executed this Loan
Assumption and Ratification Agreement as of the day and year first above
written.
BEHRINGER HARVARD ST. LOUIS
PLACE S, LLC, a Delaware limited
liability company
By: _________________________________
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed this Loan
Assumption and Ratification Agreement as of the day and year first above
written.
LENDER:
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC., a Delaware corporation
By: _________________________________
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed this Loan
Assumption and Ratification Agreement as of the day and year first above
written.
ADDED BORROWER:
Company: ______________________________
By: _________________________________
Name:
Title:
STATE OF _________________ )
) SS.
COUNTY OF _______________ )
On this ___ day of June in the year 2004 before me, _________________,
a Notary Public in and for said state, personally appeared _________________ of
_____________________________, known to me to be the person(s) who executed the
within Deed of Trust, Assignment of Leases and Rents and Security Agreement in
behalf of said limited liability company acting in its capacity as
_________________ for Grantor and acknowledged to me that she executed the same
for the purposes therein stated.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal in the County and State aforesaid, the day and year first above
written.
(SEAL)
-------------------------
Notary Public
My term expires: _____________.
STATE OF _________________ )
) SS.
COUNTY OF _______________ )
On this ___ day of June in the year 2004 before me, _________________,
a Notary Public in and for said state, personally appeared _________________ of
_____________________________, known to me to be the person(s) who executed the
within Deed of Trust, Assignment of Leases and Rents and Security Agreement in
behalf of said limited liability company acting in its capacity as
_________________ for Grantor and acknowledged to me that she executed the same
for the purposes therein stated.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal in the County and State aforesaid, the day and year first above
written.
(SEAL)
-------------------------
Notary Public
My term expires: _____________.
STATE OF _________________ )
) SS.
COUNTY OF _______________ )
On this ___ day of June in the year 2004 before me, _________________,
a Notary Public in and for said state, personally appeared _________________ of
_____________________________, known to me to be the person(s) who executed the
within Deed of Trust, Assignment of Leases and Rents and Security Agreement in
behalf of said limited liability company acting in its capacity as
_________________ for Grantor and acknowledged to me that she executed the same
for the purposes therein stated.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal in the County and State aforesaid, the day and year first above
written.
(SEAL)
-------------------------
Notary Public
My term expires: _____________.
