Exhibit 10.32
EXECUTION VERSION
ASSIGNMENT AND ASSUMPTION
AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION
AGREEMENT (this “ Agreement ”) dated as of
February 11, 2009 is entered into by and between Goldman Sachs
Mortgage Company, a New York limited partnership (“
Assignor ”) and KBS Debt Holdings II X, LLC, a
Delaware limited liability company (“ Assignee
”).
W I T N E S
S E T H:
WHEREAS, reference is made to the
Loan Agreement, dated as of August 8, 2007 between Assignor,
as successor to Goldman Sachs Commercial Mortgage Capital, L.P.
(“ GSCMC ”), as lender, and Brookfield
Properties OLP Co. LLC (f/k/a BFP One Liberty Plaza Co. LLC), as
borrower (“ Borrower ”) (as amended, restated,
supplemented or otherwise modified from time to time, the “
Loan Agreement ”), and to the loan made pursuant
thereto (the “ Loan ”);
WHEREAS, the Loan is represented by
that certain Amended, Restated and Consolidated Note A-1 in the
original principal amount of $350,000,000 (“ Note A-1
”), that certain Amended, Restated and Consolidated Note
A-2-A in the original principal amount of $250,000,000 ( “
Note A-2-A ”), that certain Amended, Restated and
Consolidated Note A-2-B-1 in the original principal amount of
$35,000,000 (“ Note A-2-B-1 ”), that certain
Amended, Restated and Consolidated Note A-2-B-2-A in the original
principal amount of $100,000,000 (the “ Note A-2-B-2-A
”), that certain Amended, Restated and Consolidated Note
A-2-B-2-B in the original principal amount of $75,000,000 (“
Purchased Note 1 ”) and that certain Amended, Restated
and Consolidated Note A-2-B-2-C in the original principal amount of
$40,000,000 (“ Purchased Note 2 ”; together with
Purchased Note 1, collectively, the “ Purchased Notes
”; Note A-1, Note A-2-A, Note A-2-B-1 and Note A-2-B-2-A ,
collectively, the “ Other Notes ”).
WHEREAS, pursuant to the terms of
this Agreement, Assignor desires to sell, and Assignee desires to
purchase, the Purchased Notes;
NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as
follows:
1. Assignment . Assignor
hereby sells, assigns and transfers to Assignee all of
Assignor’s right, title and interest in and to the Purchased
Notes, in exchange for payment to Assignor in immediately available
funds of an aggregate purchase price specified in a settlement
statement executed by both parties, plus all accrued and unpaid
interest on the original principal balance of the Purchased Notes
through the day immediately preceding the Settlement
Date.
“ Settlement Date
” means the Business Day on which Assignor receives from
Assignee the aggregate purchase price in immediately available
funds; provided , however , that if Assignor receives
such aggregate purchase price after 3:00 p.m., New York time, on
any Business Day, the Settlement Date shall be the next succeeding
Business Day.
2. Assumption . Assignee
hereby assumes the obligations, and agrees to observe and perform
all the covenants, applicable to the holder of the Purchased Notes
under the Loan Documents accruing from and after the Settlement
Date, including the obligations of the A-2 Lender that are
applicable to the holder of the Purchased Notes under that certain
Intercreditor
1
and Servicing Agreement, dated as of
October 1, 2007, between Assignor in its capacity as the
initial holder of the A-1 Note (as defined therein) and Assignor in
its capacity as holder of the A-2 Note (as defined therein) (as
amended, the “ !Intercreditor Agreement ”)
and Assignor hereby agrees that it shall remain fully liable for
any obligations and liabilities which accrued prior to the
Settlement Date under the Intercreditor Agreement and the Loan
Documents.
3. Non-Reliance on Assignor .
Except as explicitly set forth herein, Assignor makes no
representation or warranty in connection with, and shall have no
responsibility with respect to, the solvency, financial condition,
or financial or other statements of the Borrower, or the validity
or enforceability of the obligations of the Borrower in
resp
