DEFEASANCE ASSIGNMENT, ASSUMPTION
AND RELEASE AGREEMENT
THIS
DEFEASANCE ASSIGNMENT, ASSUMPTION AND RELEASE AGREEMENT (this
“ Agreement ”) is dated as of May 9,
2006, among WINSTON SPE LLC, a Virginia limited liability company
(“ Pledgor ”), WELLS FARGO BANK, N.A.
(f/k/a Norwest Bank Minnesota, National Association), a national
banking association, as trustee, under the Pooling and Servicing
Agreement, dated as of March 1, 1999 (as amended from time to
time, the “ Pooling and Servicing Agreement
” ), for the registered holders of DLJ Commercial
Mortgage Corp., Commercial Mortgage Pass-Through Certificates,
Series 1999-CG1 (together with its successors and assigns,
“ Pledgee ”) , SB WINSTON
HOLDINGS, LLC, a Delaware limited liability company (“
Successor Borrower ”), WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association (as successor to GE
Capital Loan Services, Inc.), as master servicer (“
Servicer ”) under the Pooling and Servicing
Agreement, and, for the sole purpose of acknowledging the
transactions effected by this Agreement, WELLS FARGO BANK, N.A., a
national banking association, as Securities Intermediary and
Custodian (“ Intermediary ”).
A. CMF
CAPITAL COMPANY, LLC, a Delaware limited liability company (“
Original Lender ”) made a loan to Pledgor in
the original principal amount of SEVENTY-ONE MILLION AND 00/100
($71,000,000.00) (the “ Loan ”) pursuant
to a Loan Agreement, dated November 3, 1998, between Pledgor
and Original Lender (the “ Loan Agreement
”).
B. The Loan
is evidenced by that certain Promissory Note, dated as of
November 3, 1998 (the “ Note ”),
from Pledgor to Original Lender.
C. The Loan
and Note are secured by the Mortgage, executed by Pledgor in favor
of Original Lender granting to Original Lender, among other things,
liens on the real properties described in said Mortgage
(collectively, the “ Real Property ”) and
the Collateral Documents. The Loan is further evidenced or secured
by various other documents executed by Pledgor and others in favor
of Original Lender (together with the Collateral Documents, the
Loan Agreement, the Note and the Mortgage, the “ Loan
Documents ”).
D. Original
Lender assigned all of its right, title and interest in the Loan
and the Loan Documents to Pledgee.
E. Pursuant
to the Loan Documents, Pledgor has requested that Pledgee release
the liens of the Mortgage and terminate the Collateral Documents
upon Pledgor’s defeasance of the Loan.
F. Pursuant
to the Loan Documents, it is a condition precedent to
Pledgee’s obligation to release the liens of the Mortgage and
terminate the Collateral Documents that Pledgor grant a security
interest in the Pledged Collateral (as defined in the Security
Agreement) to Pledgee to secure the payment and performance in full
when due of all amounts payable under the Loan
Documents.
G. Pledgor is
the legal and beneficial owner of the securities listed in
Exhibit A hereto (collectively, the “
Securities ”), and, pursuant to the Loan
Documents, and as a condition precedent to Pledgee’s
obligation to release the lien of the Mortgage and terminate the
Collateral Documents, Pledgor has granted to Pledgee, pursuant to a
certain Defeasance Pledge and Security Agreement, dated as of the
date hereof, by and among Pledgor, Pledgee, Servicer and
acknowledged by Intermediary (the “ Security
Agreement ”), a security interest in the Securities,
certain other collateral and the proceeds thereof to secure the
payment and performance in full when due of all amounts payable
under the Loan Documents.
H. In
connection with the Security Agreement, Pledgor, Pledgee,
Intermediary and Servicer have entered into the Defeasance Account
Agreement, pursuant to which Intermediary has established and will
maintain an account to hold the Pledgor’s interest in the
Securities and other collateral.
I. In
connection with Pledgee’s release of the lien of the Mortgage
and termination of the Collateral Documents pursuant to the Loan
Documents, Pledgor is required or permitted to transfer and assign
all obligations, rights and duties under and to the Note and the
other Defeasance Documents, together with its interest in the
Pledged Collateral, to a successor entity established or designated
in accordance with the Loan Documents.
J. Successor
Borrower has been established or designated to be the successor
entity to assume certain of Pledgor’s rights and obligations
under the Defeasance Documents, and Servicer, acting on behalf of
Pledgee, has approved Successor Borrower to be the successor entity
to assume certain of Pledgor’s rights and obligations under
the Defeasance Documents.
K. Pledgor
desires to (i) obtain the release of the lien of the Mortgage
and terminate the Collateral Documents, (ii) transfer certain
of its rights and obligations under the Defeasance Documents to
Successor Borrower and (iii) obtain a release of certain of
its rights and obligations under the Defeasance Documents and the
other Loan Documents to the extent provided herein, and Successor
Borrower desires to assume certain of Pledgor’s rights and
obligations under the Defeasance Documents and acquire
Pledgor’s right, title and interest in the Pledged
Collateral.
NOW,
THEREFORE , in consideration of the mutual covenants and
promises of the parties hereto and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Each capitalized
term used and not defined herein shall have the meaning assigned to
such term in the Security Agreement.
Section 2. Assignment of Secured Obligations and
Securities .
Pledgor hereby
sells, transfers and assigns to Successor Borrower, effective as of
the date hereof, (a) the Secured Obligations including,
without limitation, all obligations, rights (including without
limitation the right to prepay the Note, if any) and duties in, to
and under, and subject to the terms of, the Defeasance Documents
and (b) all of Pledgor’s right, title and interest in
and to the Pledged Collateral, subject to the terms of the
Defeasance Documents and to the
2
rights of
Pledgee and the obligations of Intermediary pursuant to the
Security Agreement and the Defeasance Account Agreement.
Section 3. Assumption of Loan Obligations
.
(a) Successor
Borrower, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, hereby assumes, and
agrees to be bound by and to perform: (1) each of the Secured
Obligations and all other covenants, agreements, representations
and warranties of Pledgor under the Defeasance Documents, first
arising or accruing on or after the Closing Date, and (2) each of
the obligations, covenants, agreements, representations and
warranties of Successor Borrower contained herein (the failure to
comply with Section 3(a)(1) or Section
3(a)(2) shall constitute an Event of Default);
provided however , Successor Borrower shall not
assume any obligations (i) under Section 4
of the Security Agreement (with respect to the Securities
transferred to Successor Borrower on the date hereof),
(ii) under Section 6 of the Security
Agreement, to the extent that such obligations have been fully
performed by Pledgor or parties other than Successor Borrower prior
to the transfer of the Securities to Successor Borrower,
(iii) that may arise as a result of the Pledgor’s
failure to effect the initial perfection of Pledgee’s
interest in the Pledged Collateral prior to the transfer of the
Pledged Collateral to Successor Borrower, (iv) that may arise
as a result of any misrepresentation or misstatement made by
Pledgor in any of the Defeasance Documents or otherwise made by
Pledgor in connection with the defeasance transaction contemplated
under this Agreement (v) arising under the Note or other Loan
Documents (to the extent that such Loan Documents are incorporated
in the Note), which (1) relate to the use or operation of the
Real Property or (2) conflict with any express covenants or
obligations assumed by Successor Borrower under the other
Defeasance Documents or (vi) for any expenses that may be due
and payable under the Note or the Mortgage other than principal and
interest due under the Note, unless such other costs or expenses
are specifically identified and expressly assumed by Successor
Borrower herein; provided , further , however
, except as otherwise expressly provided in
Section 3(b) below, Successor Borrower shall be
liable to Pledgee only to the extent of the Pledged Collateral, and
Pledgee shall have no recourse against, and Pledgee shall not
enforce any monetary judgment against, assets of Successor Borrower
other than the Pledged Collateral, with respect to the Secured
Obligations. Except as set forth herein, including the prior
provisions, nothing herein is intended to limit or restrict
Pledgee’s rights or remedies with respect to the Pledged
Collateral.
(b) Notwithstanding
the foregoing, Successor Borrower (but not its members or manager)
shall be personally liable for all claims, demands, liabilities,
deficiencies, losses, damages, judgments, costs, and expenses,
including without limitation reasonable attorneys fees and costs of
collection incurred, suffered or paid by Pledgee as a result
of:
(i) any
representation, warranty or certification made by or on behalf of
Successor Borrower for the benefit of Pledgee in any Defeasance
Document (or in any modification or supplement thereto), or in any
certificate, report, financial statement or other item furnished to
Pledgee in connection with this transaction having been false or
misleading in any material respect as of the time made or
furnished;
(ii) the Pledged
Collateral or any part thereof or interest therein becoming subject
to any security interest, pledge, covenant, lien, or other
encumbrance whether junior or senior to the interest of Pledgee as
a result of actions of Successor Borrower;
3
(iii) the Pledged
Collateral or any part thereof or interest therein being sold,
assigned, transferred, conveyed or otherwise disposed of, or
becoming the subject of any attempted sale, assignment, transfer or
conveyance, by Successor Borrower;
(iv) any of the
Events of Default described in subparagraphs (vii), (viii), (ix),
(x), (xii) or (xiii) of Section 9(a)
of the Security Agreement occurring as a result of actions of
Successor Borrower or circumstances relating to Successor
Borrower;
(v) Successor
Borrower’s failure at any time to be a Single Purpose Entity;
or
(vi) the funds in
the Pledged Collateral Account being insufficient to satisfy all
obligations then due under the Note or under any other Defeasance
Documents (without taking into account (a) reinvestment income
or (b) failure by any Obligor to satisfy its obligations under
the Securities).
Successor
Borrower’s assumption of the obligations of Pledgor as set
forth above under the Defeasance Documents other than the Note is
limited to those obligations arising on and after the date hereof.
With respect to the Note, Successor Borrower expressly assumes
liability for interest accruing on the Loan from the first day of
the interest accrual period in which the defeasance contemplated
herein occurs, which shall be paid from Pledged Collateral
deposited by the Pledgor into the Pledged Collateral Account in
accordance with the provisions of the Defeasance Account
Agreement.
(c) Notwithstanding
anything to the contrary set forth in
Section 3(b) , Pledgee shall have no recourse
for any claims, demands, liabilities, deficiencies, losses,
damages, judgments, costs and expenses, including, without
limitation, legal fees and expenses, under Section
3(b) or otherwise under the Defeasance Documents against
any assets (other than the Pledged Collateral) of Successor
Borrower that have been pledged to Pledgee pursuant to any other
defeasance transaction for any other defeased mortgage loan held by
Pledgee until such transaction has been paid in full.
(d) In
addition to the rights of Pledgee under the Defeasance Documents,
Successor Borrower hereby grants to Pledgee and Servicer a power of
attorney to file, at Successor Borrower’s cost, any franchise
or other administrative filings which may be required to maintain
Successor Borrower’s good standing and legal existence in the
event Successor Borrower fails to do so and such failure continues
for thirty (30) days after written notice. This power of
attorney is coupled with an interest and, as such, is irrevocable
for the term of this Agreement.
(e) Successor
Borrower shall deliver to Pledgee, within thirty (30) days
after written request from Pledgee, certification signed by an
officer of Successor Borrower or of Successor Borrower’s
managing member or general partner, as applicable, certifying that
such officer is familiar with the activities and operations of
Successor Borrower and Successor Borrower’s affiliates and
all transactions entered into by Successor Borrower during the
preceding twelve months (or since the date of Successor
Borrower’s formation, if Successor Borrower was formed during
such preceding twelve month period), and that, to such
officer’s knowledge, Successor Borrower has conducted itself
as a Single Purpose Entity during such period, has filed all tax
returns required to be filed during such period and has paid all
taxes due and payable during such period. If requested by Pledgee,
each such certification shall be accompanied by an original
certificate of existence or good standing issued by the Secretary
of State of the jurisdiction of
4
Successor
Borrower’s formation dated not more than thirty
(30) days prior to date of such certification. In addition to
any other remedies that Pledgee may have under the Defeasance
Documents, in the event of the failure of Successor Borrower to
maintain its status as a Single Purpose Entity in good standing,
Successor Borrower’s failure to file all required tax returns
and pay all taxes that it owes or Successor Borrower’s
failure to file all forms and documents required to maintain its
separate legal existence, in each case, which
|
