EXHIBIT 10.59
CONSENT TO TRANSFER OF PROPERTY
AND ASSUMPTION OF AMENDED AND RESTATED SECURED PROMISSORY
NOTE, AMENDED AND RESTATED DEED TO SECURE DEBT AND SECURITY
AGREEMENT, LOAN AGREEMENT, ASSIGNMENT OF
LEASES AND RENTS AND ESCROW SECURITY AGREEMENT
752693
THIS CONSENT TO TRANSFER OF PROPERTY AND ASSUMPTION OF AMENDED AND
RESTATED SECURED PROMISSORY NOTE, AMENDED AND RESTATED DEED TO SECURE DEBT AND
SECURITY AGREEMENT, LOAN AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND ESCROW
SECURITY AGREEMENT ("Consent and Assumption") is entered into effective as of
August 13, 2004 among (i) LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR
MORGAN STANLEY DEAN WITTER CAPITAL I INC., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2001-TOP1 ("Lender"); (ii) THE PROMENADE AT PLEASANT HILL,
L.P., a Georgia limited partnership ("Current Borrower"); (iii) RAMCO PROMENADE
LLC, a Michigan limited liability company ("Proposed Borrower"); (iv) JAMES C.
WALLACE, JR. ("Current Guarantor") and (v) RAMCO-GERSHENSON PROPERTIES, L.P.
("Proposed Guarantor").
WITNESSETH:
WHEREAS, PRINCIPAL COMMERCIAL FUNDING, LLC ("Original Lender") provided
Current Borrower a loan (the "Loan") in the original principal amount of
Fourteen Million Two Hundred Sixteen Thousand Dollars ($14,216,000.00) evidenced
by a Amended and Restated Secured Promissory Note dated August 24, 2000, from
Current Borrower to Original Lender (the "Note") secured by a Amended and
Restated Deed to Secure Debt and Security Agreement dated August 24, 2000 (the
"Mortgage") covering the property described therein (the "Property") and
recorded September 1, 2000 in Book 21208, Page 0035 among the land records of
Gwinnett County, Georgia, and an Assignment of Leases and Rents dated August 24,
2000 (the "Assignment of Leases and Rents") and recorded September 1, 2000 in
Book 21208, Page 0083 among the land records of Gwinnett County, Georgia (the
Note, the Mortgage, the Assignment of Leases and Rents, Loan Agreement and all
other documents, instruments and agreements executed and delivered in connection
with the Loan, as heretofore amended, modified, or assigned, to be referred to
hereinafter as the "Current Loan Documents"); and
WHEREAS, Original Lender assigned the Mortgage and the Assignment of
Leases and Rents to Lender through an Assignment of Amended and Restated Deed to
Secure Debt and Security Agreement dated February 23, 2001 and recorded
September 17, 2001, in Book 24491, at Page 0216, in the Gwinnett County,
Georgia; and
WHEREAS, Current Borrower and Proposed Borrower have requested that
Lender consent to the transfer of Current Borrower's interest in the Property to
Proposed Borrower and Lender will consent to the transfer of Current Borrower's
interest in the Property to Proposed
Borrower provided that: (i) Proposed Borrower enters into this Consent and
Assumption assuming Current Borrower's obligations under the Note, Mortgage,
Assignment of Leases and Rents, Loan Agreement dated August 24, 2000 and Escrow
Security Agreement dated August 24, 2000, (collectively with this document, the
"Loan Documents"); (ii) Proposed Borrower enters into that certain Environmental
Indemnity Agreement dated of even date herewith; and (iii) Proposed Guarantor
enters into the Guaranty of even date herewith.
NOW, THEREFORE, in consideration of the above premises and of the
benefits to be obtained by the covenants contained herein, and for other good,
valuable and legal consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto intending to be legally bound hereby agree as
follows:
1. Lender hereby consents to the transfer of all of Current Borrower's
interest in the Property to Proposed Borrower. Nothing herein shall in
any way be construed to impair or affect the first lien priority of the
Mortgage.
2. Proposed Borrower hereby agrees to assume all of Current Borrower's
obligations under the Loan Documents and abide by the terms thereof.
The funds used to facilitate the purchase of the Property are a capital
contribution and are not secured, directly or indirectly, by an
interest in the Proposed Borrower or other collateral assigned to the
Lender.
3. Lender's consent to this transfer and assumption of all of Current
Borrower's obligations under the Loan Documents by Proposed Borrower
shall not be deemed to be a waiver of Lender's requirements for consent
to any future transfer.
4. On the date that Proposed Borrower assumes the loan and acquires the
ownership interest in the Property from Current Borrower, which shall
be the same date as the date this document is recorded ("Transfer
Date"), Current Borrower and Current Guarantor shall be released from
all obligations under the Loan Documents and Current Guarantor shall be
released from all obligations under that certain Guaranty dated August
24, 2000 in connection with the loan documents except Current Borrower
and Current Guarantor shall remain liable to Lender, its successors
and/or assigns for any environmental indemnity obligations specified in
the Mortgage/under that certain Environmental Indemnity Agreement dated
August 24, 2000, and/or for any Hazardous Material (as defined in the
Environmental Indemnity Agreement/Mortgage) introduced to the Property
prior to the Transfer Date or introduced by Current Borrower or Current
Guarantor after the Transfer Date.
5. Proposed Guarantor agrees to enter into the Guaranty and abide by the
terms thereof.
6. As of the date hereof, Borrower is a Michigan limited liability.
Borrower shall become a Delaware limited liability company within 60
days after the Transfer Date.
7. The following shall be added as a Permitted Transfer in the Mortgage:
"1) transfer of limited partnership interests of Ramco-Gershenson
Properties, L.P. (RGPLP), the limited
partnership which owns the sole membership in Borrower and (2) sales of
publicly traded shares of Ramco-Gershenson Properties Trust (RGPT),
which is a publicly traded real estate trust that is the general
partner of RGPLP provided (i) RGPLP shall continue to own the Borrower,
which shall continue to own the Premises and (ii) RGPT continues to be
the general partner of RGPLP and own a 70% interest in RGPLP". Lender
acknowledges that such transfers shall not be deemed a default under
any of the Current Loan Documents or trigger the payment obligations,
if any, under applicable escrow reserves or other similar accounts.
8. The Notice address to Borrower, as shown on the first page of the
Mortgage, is hereby changed to read: 31500 Northwestern Highway, Suite
300, Farmington Hills, MI 48334
9. This Consent and Assumption may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together
shall constitute one and the same instrument.
10. Except as herein specifically modified and consented to, the Loan
Documents shall remain in full force and effect as written.
11. Proposed Borrower and Proposed Guarantor will not be responsible or
liable for breach of a warranty or representation by Current Borrower
and/or Current Guarantor, exclusive of the Environmental Indemnity
Agreement.
12. This Consent and Assumption shall be governed by the laws of the state
of Georgia and be binding upon and inure to the benefit of the parties
hereto, their successors and assigns.
IN WITNESS WHEREOF, the parties have signed and sealed this agreement
as of the date and year above written.
(Signatures begin on following page)
LENDER:
LASALLE BANK NATIONAL ASSOCIATION,
AS TRUSTEE FOR MORGAN STANLEY DEAN
WITTER CAPITAL I INC., COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP1
By: PRINCIPAL GLOBAL INVESTORS, LLC,
formerly known as PRINCIPAL CAPITAL
MANAGEMENT, LLC, a Delaware limited
liability company, in its capacity as Primary
Servicer its authorized signatory
By: /s/ Patrick G. Haiter
Patrick G. Haiter,
Executive Director
(Principal Real Estate Investments)
By: /s/ Christopher J. Henderson
Christopher J. Henderson,
Counsel
CURRENT BORROWER:
THE PROMENADE AT PLEASANT HILL, L.P.,
A Georgia limited partnership
By: /s/ James C. Wallace Jr.
James C. Wallace Jr.,
Sole General Partner
CURRENT GUARANTOR:
By: /s/ James C. Wallace Jr.
James C. Wallace Jr., an
Individual Guarantor
(Signatures continue on following page)
PROPOSED BORROWER:
RAMCO PROMENADE LLC, a Michigan
limited liability company
By: /s/ Richard J. Smith
Richard J. Smith,
Chief Financial Officer
PROPOSED GUARANTOR:
RAMCO-GERSHENSON PROPERTIES, L.P., a
Delaware limited partnership
By RAMCO-GERSHENSON
PROPERTIES TRUST, a Maryland
real estate investment trust, its Sole
General Partner
By: /s/ Richard J. Smith
Richard J. Smith,
Chief Financial Officer
And
By: /s/ Richard Gershenson
Richard Gershenson,
EVP