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LOAN ASSUMPTION AND MODIFICATION AGREEMENT

Assumption Agreement

LOAN ASSUMPTION AND MODIFICATION AGREEMENT | Document Parties: Boston Mortgage Securities Corp | Katten Muchin Rosenman LLP | KPA HS ANAHEIM LLC | WELLS FARGO BANK, NA You are currently viewing:
This Assumption Agreement involves

Boston Mortgage Securities Corp | Katten Muchin Rosenman LLP | KPA HS ANAHEIM LLC | WELLS FARGO BANK, NA

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Title: LOAN ASSUMPTION AND MODIFICATION AGREEMENT
Governing Law: California     Date: 11/8/2006
Industry: Real Estate Operations     Law Firm: Allen Matkins;Katten Muchin     Sector: Services

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Exhibit 10.9

 

 

     

Upon recordation, return to:

 

Christopher J. Hart, Esq.

Katten Muchin Rosenman LLP

1025 Thomas Jefferson Street, N.W.

Suite 700, East Lobby

Washington, DC 20007-5201

 

Parcel No. APN 232-091-05

 

(Space above for Recorder’s Use)



EXECUTION COUNTERPART

Hilton Suites - Anaheim

Anaheim, California

WELLS FARGO BANK, N.A., as Trustee for the Registered Holders of Credit Suisse First

Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series

2005-C5

Loan Assumption

and

Modification Agreement

Date: October 4, 2006

Location of Property: 400 North State College Blvd.

  •                                       Anaheim, California 92868

LOAN ASSUMPTION AND MODIFICATION AGREEMENT

THIS LOAN ASSUMPTION AND MODIFICATION AGREEMENT (this " Agreement ") is made and entered into as of the 4 th day of October, 2006, by and among KPA HS ANAHEIM LLC , a Delaware limited liability company (" Assuming Borrower "), KPA ANAHEIM ORANGE LESSEE LLC , a Delaware limited liability company, each having an address of c/o Innkeepers USA Limited Partnership, 340 Royal Poinciana Way, Suite 306, Palm Beach, Florida 33480 (" Operating Lessee "), RLJ ANAHEIM SUITES HOTEL, L.P. , a Delaware limited partnership (" Original Borrower "), and RLJ ANAHEIM SUITES HOTEL LESSEE, L.P. , a Delaware limited partnership (" Original Lessee "), each having an address at c/o RLJ Capital Partners LLC, 3 Bethesda Metro Center, Suite 1000, Bethesda, Maryland 20814, in favor of WELLS FARGO BANK, N.A. , as Trustee for the Registered Holders of Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2005-C5, having an address at c/o Capmark Finance Inc., 200 Witmer Road, Horsham, Pennsylvania 19044 (" Lender ").

Recitals

All capitalized terms not defined herein are defined on the attached and incorporated Schedule 1 .

A. GMAC COMMERCIAL MORTGAGE BANK, a Utah industrial bank, now known as CAPMARK BANK , a Utah industrial bank (" Original Lender "), made a loan to Original Borrower in the original principal amount of THIRTEEN MILLION SEVEN HUNDRED THOUSAND AND NO/100 DOLLARS ($13,700,000.00) (the " Loan "). The Loan is evidenced and secured by the documents executed in connection with the Loan, in favor of Original Lender by Original Borrower, as those set forth on Schedule 1 (the " Loan Documents ").

B. Original Lender assigned, sold and transferred its interest in the Loan and all Loan Documents to Lender pursuant to that certain Assignment of Deed of Trust, Leasehold Deed of Trust, Assignment of Leases and Profits, Security Agreement and Fixture Financing Statement and Assignment of Assignment of Leases and Rents recorded on January 13, 2006 as Instrument No. 2006000028576 in the Official Records of Orange County, California (the " Recorder’s Office "), and Lender is the current holder of all of Original Lender’s interest in the Loan and Loan Documents.

C. The above-referenced Loan is a part of a mortgage pool known as Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2005-C5, for which, Wells Fargo Bank, N.A., is Trustee and Capmark Finance Inc., f/k/a GMAC Commercial Mortgage Corporation (" Capmark ") serves as Master Servicer.

D. As of the date hereof, and immediately prior to the consummation of the transactions described herein, Original Borrower continues to be the owner of the real property and improvements thereon described in and encumbered by the Deed of Trust, the Assignment of Rents and the other Loan Documents.

E. Pursuant to that certain Purchase and Sale Agreement and Escrow Instructions, dated as of July 21, 2006 (as amended from time to time, the " Sales Agreement "), by and

between Original Borrower and INNKEEPERS USA LIMITED PARTNERSHIP, a Virginia limited partnership (" Purchaser "), Original Borrower agreed to transfer and Purchaser agreed to acquire that certain real property more particularly described on Exhibit "A" attached hereto, together with all other property encumbered by the Deed of Trust and the other Loan Documents (collectively, the " Property "). Pursuant to that certain Assignment of Purchase and Sale Agreement and Escrow Instructions, dated substantially of even date herewith, all rights and interests of Purchaser in, to and under the Sales Agreement were assigned by Purchaser to Assuming Borrower. The Sales Agreement requires that Assuming Borrower assume the Loan and the obligations of Original Borrower under the Loan Documents, and conditions the closing of the transfer of the Property upon the Lender’s consent to the transfer of the Property and the assumption of the Loan (the " Sale and Assumption ").

F. Pursuant to the terms of the Deed of Trust and the Assignment of Rents, Original Borrower has the right to transfer the Property to a third party subject to the satisfaction of certain conditions specified therein. Original Borrower and Assuming Borrower have requested that Lender consent to the conveyance, assignment and transfer of the Property by Original Borrower to Assuming Borrower, subject to the Deed of Trust, the Assignment of Rents and the other Loan Documents, each as modified herein, and to the assumption by Assuming Borrower of the Loan and the obligations of Original Borrower under the Loan Documents.

G. In connection with the Sale and Assumption and in order to comply with federal tax laws, Assuming Borrower intends to lease the Property to Operating Lessee pursuant to that certain Operating Lease Agreement between Assuming Borrower, as lessor, and Operating Lessee, as lessee, dated as of even date herewith (the " Operating Lease ").

H. Lender is willing to consent to the conveyance, assignment and transfer of the Property by Original Borrower to Assuming Borrower, subject to the Deed of Trust, the Assignment of Rents and the other Loan Documents, each as modified herein, and to the assumption by Assuming Borrower of the Loan and the obligations of Original Borrower under the Loan Documents, on and subject to the terms and conditions set forth in this Agreement, including the modifications to the Loan Documents set forth in Section 6 hereof, the Operating Lease, the Franchise Agreement (as defined in Section 6(b) hereof), the Management Agreement (as defined in Section 6(b) hereof), and in the Deed of Trust, the Assignment of Rents and in the other Loan Documents, each as modified herein.

I. Lender, Original Borrower, Original Lessee, Assuming Borrower and Operating Lessee by their respective executions hereof, evidence their consent to the transfer of the Property to Assuming Borrower and the modification and assumption of the Loan Documents, each as modified herein, as hereinafter set forth.

Statement of Agreement

In consideration of the mutual covenants and agreements set forth herein, the parties hereto hereby agree as follows:

 

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1. Representations, Warranties, and Covenants of Original Borrower and Original Lessee .

(a) Original Borrower and Original Lessee hereby represent to Lender, as of the date hereof, that: (i) contemporaneously with the execution and delivery hereof, Original Borrower has conveyed and transferred all of the Property to Assuming Borrower; (ii) contemporaneously with the execution and delivery hereof, Original Lessee has assigned and transferred to Operating Lessee all leases, tenancies, security deposits and prorated rents of the Property in effect as of the date hereof (the " Leases ") retaining no rights therein or thereto; (iii) Original Borrower has not received a mortgage from Assuming Borrower encumbering the Property to secure the payment of any sums due Original Borrower or obligations to be performed by Assuming Borrower; (iv) there are no defaults by it under the provisions of the Note, the Deed of Trust, the Assignment of Rents or the other Loan Documents; (v) to the actual knowledge of Original Borrower and Original Lessee, there are no defenses, set-offs or rights of defense, set-off or counterclaim whether legal, equitable or otherwise to the obligations evidenced by or set forth in the Note, the Deed of Trust, the Assignment of Rents or the other Loan Documents; (vi) to the actual knowledge of Original Borrower and Original Lessee, all provisions of the Note, the Deed of Trust, the Assignment of Rents and the other Loan Documents are in full force and effect, except as modified herein; and (vii) there are no subordinate liens of any kind covering or relating to the Property nor are there any mechanics’ liens or liens for unpaid taxes or assessments encumbering the Property, nor has notice of a lien or notice of intent to file a lien been received.

(b) Original Borrower and Original Lessee hereby covenant and agree that: (i) from and after the date hereof, Lender may deal solely with Assuming Borrower and Operating Lessee in all matters relating to the Loan, the Loan Documents, and the Property; (ii) Original Borrower and Original Lessee shall not at any time hereafter take a mortgage encumbering the Property from Assuming Borrower to secure any sums to be paid or obligations to be performed by Assuming Borrower or Operating Lessee so long as any portion of the Loan remains unpaid; (iii) Lender has no further duty or obligation of any nature relating to this Loan or the Loan Documents to Original Borrower or Original Lessee; and (iv) Original Borrower and Original Lessee hereby release Lender, and each of its predecessors in interest, together with any officers, directors, partners, employees, attorneys and agents of each of the foregoing, from all claims and liabilities relating to the transaction evidenced by the Loan Documents through and including the date hereof.

Original Borrower and Original Lessee understand and intend that Lender shall rely on the covenants contained herein.

2. Representations, Warranties, and Covenants of Assuming Borrower .

(a) Assuming Borrower hereby represents and warrants to Lender, as of the date hereof, that: (i) simultaneously with the execution and delivery hereof, it has acquired from Original Borrower all of the Property, and all of Original Borrower’s rights in the Leases; (ii) it has assumed the performance of Original Borrower’s obligations under the Leases; and (iii) it has not granted to Original Borrower a mortgage or other lien upon the Property to secure any debt or obligations owed to Original Borrower.

 

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(b) Assuming Borrower hereby covenants and agrees that it hereby: (i) assumes the obligations contained in the Loan Documents in accordance with the terms of the Loan Documents and this Agreement; (ii) shall pay when and as due all sums due under the Note and other Loan Documents (as modified hereby); (iii) shall perform all obligations imposed upon Original Borrower under the Deed of Trust, the Assignment of Rents and all other Loan Documents, all as modified hereby; and (iv) releases Lender, and each of its predecessors in interest, together with any officers, directors, partners, employees, servicers, agents and attorneys of each of the foregoing, from all claims and liabilities relating to the transaction evidenced by the Loan Documents, or in connection with the assumption, evidenced and effected hereby, through and including the date of this Agreement, excluding, however, any breach by Lender of its obligations hereunder. Assuming Borrower shall not hereafter, without Lender’s prior consent in accordance with the terms of the Loan Documents, further encumber the Property or sell or transfer the Property or any interest therein, except as may be specifically permitted in the Loan Documents.

(c) Assuming Borrower is a limited liability company duly organized and validly existing under the laws of the State of its formation, and is qualified to do business in the State where the Property is located. Assuming Borrower’s registered office is as set forth in its operating agreement or most recent amendment thereto. Assuming Borrower has full power and authority to enter into and carry out the terms of this Agreement and to assume and carry out the terms of the Loan Documents. Assuming Borrower is in good standing under the laws of the State of its formation.

(d) Operating Lessee hereby represents and warrants to Lender, as of the date hereof, that: (i) simultaneously with the execution and delivery hereof, it has acquired from Original Lessee all of Original Lessee’s right, title and interest in the Property, and all of Original Lessee’s rights in the Leases; (ii) it has assumed the performance of Original Lessee’s obligations under the Leases and with respect to the Property; and (iii) it has not granted to Original Lessee a mortgage or other lien upon the Property to secure any debt or obligations owed to Original Lessee.

(e) Operating Lessee is a limited liability company duly organized and validly existing under the laws of the State of its formation, and is qualified to do business in the State where the Property is located. Operating Lessee’s registered office is as set forth in its operating agreement or most recent amendment thereto. Operating Lessee has full power and authority to enter into and carry out the terms of this Agreement and to assume and carry out the terms of the Loan Documents. Operating Lessee is in good standing under the laws of the State of its formation.

(f) This Agreement and the Loan Documents constitute legal, valid and binding obligations of Assuming Borrower or Operating Lessee, enforceable in accordance with their respective terms, except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting the rights of creditors generally or general principles of equity. Neither the entry into nor the performance of and compliance with this Agreement or any of the Loan Documents has resulted or will result in any violation of, or a conflict with or a default under, any judgment, decree, order, mortgage, indenture, contract, agreement or lease by which Assuming Borrower or Operating Lessee or any property of Assuming Borrower or Operating Lessee is bound or any statute, rule or regulation applicable to Assuming Borrower or Operating Lessee.

 

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(g) Neither the execution of this Agreement nor the assumption and performance of the obligations hereunder has resulted or will result in any violation of, or a conflict with or a default under, any judgment, decree, order, mortgage, indenture, contract, agreement or lease by which the Assuming Borrower or Operating Lessee or any property of Assuming Borrower or Operating Lessee is bound or any statute, rule or regulation applicable to Assuming Borrower.

(h) There is no action, proceeding or investigation pending or threatened in writing which questions, directly or indirectly, the validity or enforceability of this Agreement or any of the other Loan Documents, or any action taken or to be taken pursuant hereto or thereto, or which might result in any material adverse change in the condition (financial or otherwise) or business of Assuming Borrower.

(i) To Assuming Borrower’s knowledge, there has been no legislative action, regulatory change, revocation of license or right to do business, fire, explosion, flood, drought, windstorm, earthquake, accident, other casualty or act of God, labor trouble, riot, civil commotion, condemnation or other action or event which has had any material adverse effect, on the business or condition (financial or otherwise) of Assuming Borrower or any of its properties or assets, whether insured against or not, since Assuming Borrower submitted to Lender its request to assume the Loan.

(j) The financial statements and other data and information supplied by Assuming Borrower in connection with Assuming Borrower’s request to assume the Loan or otherwise supplied in contemplation of the assumption of the Loan by Assuming Borrower were in all material respects true and correct as of the date specified therein, and since their dates no material adverse change in the financial condition of Assuming Borrower has occurred, and there are not any pending or proceedings or litigation threatened in writing, which might impair to a material extent the business or financial condition of Assuming Borrower.

(k) Assuming Borrower hereby represents and warrants to Lender that Assuming Borrower will not permit the transfer of any interest in Assuming Borrower, its subsidiaries or affiliates to any person or entity (or any beneficial owner of such entity) who is listed on the specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Asset Control, Department of the Treasury pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001), and/or any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of Office of Foreign Asset Control, Department of the Treasury or pursuant to any other applicable Executive Orders (such lists are collectively referred to as the " OFAC Lists "). Assuming Borrower will not knowingly enter into a lease, contract or other agreement with any party who is listed on the OFAC Lists. Assuming Borrower shall immediately notify Lender if Assuming Borrower has knowledge that any member or beneficial owner of Assuming Borrower is listed on the OFAC Lists or (A) is indicted on or (B) arraigned and held over on charges involving money laundering or predicate crimes to money laundering. Assuming Borrower shall immediately notify Lender if Assuming Borrower knows that any tenant is listed on the OFAC Lists or (A) is convicted on, (B) pleads

 

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nolo contendere to, (C) is indicted on or (D) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering. Assuming Borrower further represents and warrants to Lender that it is not currently listed on the OFAC Lists.

(l) To the best knowledge of Assuming Borrower or Operating Lessee (which shall exclude the knowledge of any employees employed by Original Borrower or Original Lessee), no representation or warranty of Assuming Borrower or Operating Lessee made in this Agreement contains any untrue statement of material fact or omits to state a material fact necessary in order to make such representations and warranties not misleading in light of the circumstances under which they are made.

Assuming Borrower and Operating Lessee understand and intend that Lender shall rely on the representations, warranties and covenants contained herein.

3. Assumption of Obligations .

(a) Assuming Borrower hereby assumes the principal indebtedness evidenced by the Note and all of the obligations, terms, covenants, conditions and agreements of every type and nature set forth in the Note, the Deed of Trust, the Assignment of Rents and the other Loan Documents in accordance with their respective terms and conditions, as the same may be modified by this Agreement. Assuming Borrower further agrees to abide by and be bound by all of the terms of the Loan Documents, including but not limited to, the representations, warranties, covenants, assurances and indemnifications therein, all as though each of the Loan Documents had been made, executed, and delivered by Assuming Borrower, as modified by the terms and conditions of this Agreement, unless Lender determines, in its sole and absolute discretion, that any claim or indemnification with respect to Assuming Borrower arose, without dispute, prior to the assumption by Assuming Borrower of the Loan pursuant to the terms of this Agreement, in which case, Original Borrower shall be liable for and shall satisfy such claim or obligation. Assuming Borrower agrees to pay, perform, and discharge each and every obligation of payment and performance under, pursuant to and as set forth in the Note, the Deed of Trust, the Assignments of Rents and the other Loan Documents at the time, in the manner and otherwise in all respects as therein provided. Assuming Borrower hereby acknowledges, agrees and warrants that (i) there are no rights of set-off or counterclaim, nor any defenses of any kind, whether legal, equitable or otherwise, which would enable Assuming Borrower to avoid or delay timely performance of its obligations under the Note, the Deed of Trust, the Assignments of Rents or any of the Loan Documents, as applicable; (ii) there are no monetary encumbrances or liens of any kind or nature against the Property except those created by the Loan Documents, and all rights, priorities, titles, liens and equities securing the payment of the Note are expressly recognized as valid and are in all things renewed, continued and preserved in force to secure payment of the Note, except as amended herein.

(b) Notwithstanding anything to the contrary in Section 3(a) above or elsewhere in this Agreement, Operating Lessee hereby irrevocably agrees that it shall assume, jointly and severally with Assuming Borrower, all of Assuming Borrower’s covenants under the Deed of Trust and the other Loan Documents with respect to the Property and the possession, operation and maintenance of the Property (which, for the avoidance of doubt shall not include the obligations of Assuming Borrower under the Note nor any obligation for the payment of any

 

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amount due to Lender under the Loan Documents) to the extent within the control of, and applicable to Operating Lessee’s interest in the Property and its leasehold interest in the Property. By way of example Operating Lessee and Assuming Borrower shall each be required to abide by (i) the same insurance requirements and monthly reporting requirements contained in such Loan Documents and (ii) the terms and conditions of Section 13 of the Deed of Trust relating to transfer or encumbrance of the Property, or of direct or indirect interests in Assuming Borrower, or by its execution of this Agreement, in Operating Lessee. Operating Lessee acknowledges and agrees that this Agreement shall be recorded in the Recorder’s Office and that additional UCC-1 financing statements shall be filed in all appropriate jurisdictions to evidence Assuming Borrower’s security interest in all of Operating Lessee’s right, title and interest in the Property, Leases, Rents, Contracts and Collateral described in the Deed of Trust. Operating Lessee acknowledges that Lender currently holds pursuant to the Loan Documents a first priority security interest in and first priority lien on all of the right, title and interest to the Property (as defined herein and in the Deed of Trust), including without limitation, Operating Lessee’s right, title and interest in the Property, Leases, Rents, Contracts and Collateral described in the Deed of Trust, together with all of Operating Lessee’s right, title and interest in and to all personal property, inventory, contract rights and intangibles held or owned by Operating Lessee in connection with the Property, including without limitation all property franchise, licenses and management agreements. In addition, any and all of the covenants set forth in the Loan Documents referenced in this Section 3(b) may be satisfied by either Operating Lessee or Assuming Borrower; provided, however, that if such covenant is one that can be complied with by both Operating Lessee and Assuming Borrower then both Operating Lessee and Assuming Borrower shall be required to comply with such covenant. Further, any factual representations made by Assuming Borrower under the Loan Documents shall be deemed correct if such representation would be correct if made by Operating Lessee but only to the extent consistent with the transactions contemplated in this Agreement. A default or Event of Default caused by the Operating Lessee shall constitute a default or Event of Default under the Deed of Trust.

4. Ownership of the Loan; Consent to Conveyance and Assum


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