EXHIBIT 10.21
ASSUMPTION AGREEMENT
This Assumption Agreement ("AGREEMENT") is made this 21st day of February,
2006, by LASALLE BANK NATIONAL ASSOCIATION, as Trustee for Bear Stearns
Commercial Mortgage Securities, Inc., Commercial Mortgage Securities
Pass-Through Certificates Series 2004 - PWR3 ("LENDER"), STONEWATER DOX FUNDING
LLC, a Delaware limited liability company ("BORROWER"), STONEWATER FUNDING LLC,
a Delaware limited liability company, ("GUARANTOR"), ACI06 CHAMPAIGN IL LLC, a
Delaware limited liability company ("NEW BORROWER"), and GLADSTONE COMMERCIAL
CORPORATION, a Maryland corporation ("NEW GUARANTOR").
RECITALS
A. Wells Fargo Bank, National Association (the "ORIGINAL LENDER") made a loan
to Borrower in the original principal amount of Ten Million and no/100ths
Dollars ($10,000,000.00) ("LOAN"), under the terms and provisions set
forth in the following loan documents, all of which are dated as of
November 21, 2003 unless otherwise noted:
1. Promissory Note Secured By Mortgage ("NOTE") in the original
principal amount of the Loan, made by Borrower and payable to
Lender's predecessor in interest;
2. Mortgage and Absolute Assignment of Rents and Leases and Security
Agreement (and Fixture Filing) ("Security Instrument"), executed by
Borrower, as Mortgagor, for the benefit of Original Lender, as
Mortgagee, which secures the Note and other obligations of Borrower
and which was recorded on November 25, 2003, as Instrument No.
2003R52081, in the Office of the Recorder of Champaign County,
Illinois ("OFFICIAL RECORDS"), the Mortgagee's interest under which
was assigned by instrument recorded on May 4, 2004, as Instrument
No.2004R12813, in the Official Records. The land, improvements and
other real property which are subject to the Security Instrument are
hereinafter referred to as the "PROPERTY" and the equipment,
machinery and other personal property which are subject to the
Security Instrument are hereinafter referred to as the "COLLATERAL";
3. Limited Guaranty ("GUARANTY") executed by Guarantor and by other
guarantors, which other guarantors have since been released under
the terms of a Guarantor Release Agreement dated as of
(approximately) January 12, 2005;
4. Assignment of Management Contracts ("ASSIGNMENT OF MANAGEMENT
CONTRACTS") given by Borrower to Original Lender;
5. Agreement Regarding Required Insurance ("AGREEMENT REGARDING
REQUIRED INSURANCE") by and between Borrower and Original Lender;
6. Cash Management Agreement by and between Borrowers and Original
Lender ("CASH MANAGEMENT AGREEMENT"); and
7. UCC-1 Financing Statements filed with the New York Secretary of
State and the Secretary of State of the State of Illinois.
The above documents and any other Loan Documents (as defined in the
Note and listed in Exhibit B to the Note, and incorporated therein),
including, in each case, any prior amendments thereto, together with
this Agreement and the documents executed in connection with this
Agreement, including without limitation, the Borrower's
Certification of even date, with all attachments, executed by New
Borrower ("BORROWER'S CERTIFICATION") that certain Guarantor's
Financial Certificate of even date, with all attachments, executed
by New Guarantor ("GUARANTOR'S FINANCIAL CERTIFICATE"); the
Assignment of Management Contracts executed by New Borrower of even
date, with its attached Consent, Subordination and Agreement of
Manager dated February 15, 2006, executed by the Manager named
therein (both documents together, the "NEW ASSIGNMENT AND CONSENT")
and the UCC-1 and UCC-3 Financing Statements of even date ("NEW
FINANCING STATEMENTS") are hereinafter collectively defined as the
"LOAN DOCUMENTS"; provided however, that the term Loan Documents
shall not include the Guaranty, the New Guaranty defined
hereinafter, nor any other guaranty given in connection with the
Loan.
B. Original Lender transferred the Note to Lender and assigned to Lender all
of its rights under the Loan Documents and the guaranty.
C. As of February 6, 2006:
1. The principal balance outstanding under the Note was Nine Million
Seven Hundred Forty-Two Thousand One Hundred Sixty-Seven and 02/100s
Dollars ($9,742,167.02);
2. Accrued interest on the Note has been paid through January 31, 2006;
3. Accrued but unpaid interest on the Note was Seven Thousand Nine
Hundred Ninety-Six and 70/100s Dollars ($7996.70);
4. The balance in the tax escrow reserve was One Hundred Twenty-Seven
Thousand One Hundred Eighty-Eight and 78/100s Dollars ($127,188.78);
and
5. The balance in the insurance escrow reserve was Ten Thousand Seven
Hundred Forty-Nine and 65/100Dollars ($10,749.65).
D. Borrower has sold and conveyed the Property and the Collateral to New
Borrower, or is about to sell and convey the Property and the Collateral
to New Borrower, and both parties desire to obtain from Lender a waiver of
any right Lender may have under the Loan Documents to accelerate the
Maturity Date of the Note by virtue of such conveyance.
E. Subject to the terms and conditions hereof, Lender is willing to waive any
right of acceleration of the Maturity Date of the Note upon assumption by
New Borrower of all obligations of Borrower under the Loan Documents.
NOW THEREFORE, FOR VALUABLE CONSIDERATION, including, without limitation, the
mutual covenants and promises contained herein, the parties agree as follows:
1. INCORPORATION. The foregoing recitals are incorporated herein by
this reference.
2. ASSUMPTION FEE. As consideration for Lender's execution of this
Agreement and in addition to any other sums due hereunder, Borrower
and New Borrower agree to pay Lender or Lender's servicers (all as
set forth in the escrow instructions to be executed in connection
with the closing of this assumption) an assumption fee of Ninety
Seven Thousand Four hundred Twenty-One and 67/100s Dollars
($97,421.67), due on execution of this Agreement by Lender.
3. CONDITIONS PRECEDENT. The following are conditions precedent to
Lender's obligations under this Agreement:
a. The irrevocable commitment of Chicago Title Insurance Company
("TITLE COMPANY") to issue CLTA 104.8 and CLTA 111.4 (or
equivalent) endorsements to Title Company's Title Policy
No.1253-000819403-CHA, dated November 25, 2003, in each case
in form and substance acceptable to Lender and without
deletions or exceptions other than as expressly approved by
Lender in writing, insuring Lender that the priority and
validity of the Security Instrument has not been and will not
be impaired by this Agreement, the conveyance of the Property,
or the transaction contemplated hereby;
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b. Receipt and approval by Lender of: (i) the executed original
of this Agreement; (ii) an executed original of a Memorandum
of Assumption Agreement in the form attached hereto as Exhibit
A and otherwise in form and substance acceptable to Lender
("MEMORANDUM OF ASSUMPTION AGREEMENT"); and (iii) any other
documents and agreements which are required pursuant to this
Agreement, in form and content acceptable to Lender;
c. Recordation in the Official Records of the Memorandum of
Assumption Agreement, together with such other documents and
agreements, if any, required pursuant to this Agreement or
which Lender has reasonably requested to be recorded or filed
in connection with this Agreement;
d. New Borrower's delivery to Lender of UCC-1 and UCC-3 Financing
Statements in proper form for filing in the appropriate
jurisdictions as determined by Lender;
e. Execution and delivery to Lender by New Guarantor of a
personal Limited Guaranty ("NEW GUARANTY") in favor of Lender
and in form and substance acceptable to Lender, pursuant to
which New Guarantor irrevocably guarantees payment for certain
matters under the Loan as more specifically set forth in the
New Guaranty;
f. Delivery to Lender of the Borrower's Certification and
Guarantor's Financial Certificate, with attachments, including
without limitation organizational documents and evidence of
good standing of New Borrower and New Guarantor, together with
such resolutions or certificates as Lender may reasonably
require, in form and content reasonably acceptable to Lender,
authorizing the assumption of the Loan and the New Guaranty
and executed by the appropriate persons and/or entities on
behalf of New Borrower and New Guarantor;
g. The representations and warranties contained herein are true
and correct in all material respects on the date made and are
reconfirmed as true and correct in all material respects on
the date of the consummation of the transactions contemplated
by this Agreement;
h. Receipt by Lender of a copy of New Borrower's (or its
Tenant's) casualty insurance policy and comprehensive
liability insurance policy with respect to the Property or ,
in lieu thereof, certificates issued by the insurance carriers
evidencing the coverages afforded by such policies, each in
form and amount satisfactory to Lender;
i. Receipt by Lender of a copy of the grant deed by which title
to the Property will be conveyed to New Borrower, the bill of
sale by which the personal property will be transferred, and
the purchase and sale agreement documenting the sale of the
Property to New Borrower;
j. Receipt by Lender of an executed assignment of the purchaser's
interest in the purchase and sale agreement for the Property
from the purchaser named therein to New Borrower;
k. Receipt by Lender of an executed Form W-9 for New Borrower;
l. Receipt by Lender of a copy of the assignment and assumption
agreement by which the existing property management agreement
for the Property has been assigned to and assumed by New
Borrower;
m. Lender shall have received an opinion of counsel to Lender
that the transfer to New Borrower, and the consummation of the
transactions referenced herein are in compliance with the
provisions of the Internal Revenue Code as the same pertain to
real estate mortgage investment conduits;
n. Payment of the assumption fee provided for in Section 2 above;
and
o. Borrower's or New Borrower's reimbursement to Lender of
Lender's costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby, including,
without limitation, title insurance costs, escrow and
recording fees, reasonable attorneys' fees, appraisal,
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engineers' and inspection fees and documentation costs and
charges, whether such services are furnished by Lender's
employees, agents or independent contractors.
4. EFFECTIVE DATE. The effective date of this Agreement shall be the
date the Memorandum of Assumption Agreement is recorded in the
Official Records ("EFFECTIVE DATE").
5. ASSUMPTION. New Borrower hereby assumes and agrees to pay when due
all sums due or to become due or owing under the Note, the Security
Instrument and the other Loan Documents and shall hereafter
faithfully perform all of Borrower's obligations under and be bound
by all of the provisions of the Loan Documents and assumes all
liabilities of Borrower under the Loan Documents as if New Borrower
were an original signatory thereto. The execution of this Agreement
by New Borrower shall be deemed its execution of the Note, the
Security Instrument and the other Loan Documents.
6. PARTIAL RELEASE OF BORROWER AND GUARANTOR; RELEASE OF LENDER.
a. Lender hereby releases (on the Effective Date) Borrower and
Guarantor from liability under the Loan Documents other than
this Agreement; provided however, that the parties hereby
acknowledge and agree that Borrower and Guarantor are
expressly not released from and nothing contained herein is
intended to limit, impair, terminate or revoke, any of
Borrower's and Guarantor's obligations with respect to the
matters set forth in Section 8.2 of the Note or Borrower's and
Guarantor's liability for breaches of their representations
and warranties under the Loan Documents, to the extent the
same arise out of or in connection with any act or omission
occurring on or before the Effective Date (the "RETAINED
OBLIGATIONS"), and that such obligations shall continue in
full force and effect in accordance with the terms and
provisions thereof and hereof. Borrower's and Guarantor's
obligations under the Loan Documents with respect to the
Retained Obligations shall not be discharged or reduced by any
extension, amendment, renewal or modification to, the Note,
the Security Instrument or any other Loan Documents,
including, without limitation, changes to the terms of
repayment thereof, modifications, extensions or renewals of
repayment dates, releases or subordinations of security in
whole or in part, changes in the interest rate or advances of
additional funds by Lender in its discretion for purposes
related to those set forth in the Loan Documents.
b. Each of Borrower, Guarantor, New Borrower and New Guarantor
hereby fully releases (on the Effective Date) Lender and any
servicer(s) of the Loan from any liability of any kind to
Borrower arising out of or in connection with the Loan or the
Loan Documents prior to the Effective Date other than this
Agreement. With respect to the immediately preceding sentence,
each of Borrower, Guarantor, New Borrower and New Guarantor
after consultation with its respective attorney, hereby
expressly waives the benefits of the provisions of applicable
law, if any, which provides to the effect that:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor
at the time of executing the release which, if known by
him, must have materially affected his settlement with
the debtor."
From time to time without first requiring performance on the part of
New Borrower, Lender may look to and require performance by Borrower
of all Retained Obligations. Borrower waives all presentments,
demands for performance, notices of nonperformance, protests,
notices of protest and notices of dishonor of all or any part of the
indebtedness now existing or hereafter arising under the Loan
Documents
7. CONFIRMATION OF GUARANTY; PARTIAL RELEASE OF GUARANTOR. Nothing
contained herein is intended to limit, impair, terminate or revoke
Guarantor's obligations under the Guaranty to the extent the same
arise out of or in connection with any act or omission occurring on
or before the Effective Date and such obligations shall continue in
full force and effect in accordance with the terms and provisions of
the Guaranty; provided, however, Lender hereby releases Guarantor
from its obligations under the Guaranty to the extent the same arise
out of or in connection with any act or omission occurring after the
Effective Date.
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8. REPRESENTATIONS AND WARRANTIES.
a. Assignment. Borrower and New Borrower each hereby represents
and warrants to Lender that Borrower has irrevocably and
unconditionally transferred and assigned to New Borrower all
of Borrower's right, title and interest in and to:
i. The Property and the Collateral;
ii. The Loan Documents;
iii. All leases related to the Property or the
Collateral;
iv. All rights as named insured under all
casualty and liability insurance policies
(and all endorsements in connection
therewith) relating to the Property or the
Collateral (unless, but only to the extent
that, New Borrower is obtaining its own such
insurance policies);
v. All reciprocal easement agreements,
declarations of conditions, covenants and
restrictions and other matters encumbering
or benefiting the Property, whether or not
recorded in the land records;
vi. All prepaid rents and security deposits, if
any, held by Borrower in connection with
leases of any part of the Property or the
Collateral; and
vii. All funds, if any, deposited in impound
accounts held by or for the benefit of
Lender pursuant to the terms of the Loan
Documents.
b. No Consents Required.
i. Borrower hereby further represents and
warrants to Lender that no consent to the
transfer of the Property and the Collateral
to New Borrower is required under any
agreement to which Borrower is a party,
including, without limitation, under any
lease, operating agreement, mortgage or
security instrument (other than the Loan
Documents), or if such consent is required,
that the parties have obtained all such
consents.
ii. New Borrower hereby further represents and
warrants to Lender that no consent to the
transfer of the Property and the Collateral
to New Borrower is required under any
agreement to which New Borrower is a party,
including, without limitation, under any
lease, operating agreement, mortgage or
security instrument (other than the Loan
Documents), or if such consent is required,
that the parties have obtained all such
consents.
c. No Defaults.
i. New Borrower hereby represents and warrants
to Lender , to the best of its knowledge,
that no default, 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, as
modified by this Agreement, and all
representations and warranties herein and in
the other Loan Documents are true and
correct.
ii Borrower hereby represents and warrants to
Lender and to New Borrower, to the best of
its knowledge, that no default, 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
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Documents, as modified by this Agreement,
and all representations and warranties
herein and in the other Loan Documents are
true and correct.
iii Lender hereby represents and warrants to New
Borrower, to the best of its knowledge, that
no default, 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, as
modified by this Agreement.
d. Loan Documents. New Borrower represents and warrants to Lender
that New Borrower has actual knowledge of all terms and
conditions of the Loan Documents, and agrees that Lender has
no obligation or duty to provide any information to New
Borrower regarding the terms and conditions of the Loan
Documents. New Borrower further agrees that all
representations, agreements and warranties in the Loan
Documents regarding Borrower, its status, authority, financial
condition and business shall apply to New Borrower as well as
to Borrower, as though New Borrower were the borrower
originally named in the Loan Documents. New Borrower further
understands and acknowledges that, except as expressly
provided in a writing executed by Lender, Lender has not
waived any right of Lender or obligation of Borrower or New
Borrower under the Loan Documents and Lender has not agreed to
any modification of any provision of any Loan Document or to
any extension of the Loan.
e. Financial Statements. New Borrower represents and warrants to
Lender that the financial statements of New Borrower and of
each member of New Borrower (if New Borrower is a limited
liability company) and of each New Guarantor, if any,
previously delivered by or on behalf of New Borrower to
Lender: (i) are materially complete and correct; (ii) present
fairly the financial condition of each of such parties as of
the date such financial statements were made; and (iii) have
been prepared in accordance with generally accepted accounting
principles consistently applied or other accounting standards
approved by Lender. New Borrower further represents and
warrants to Lender that, since the date of such financial
statements, there has been no material adverse change in the
financial condition of any of such parties, nor have any
assets or properties reflected on such financial statements
been sold, transferred, assigned, mortgaged, pledged or
encumbered except as previously disclosed in writing by New
Borrower to Lender and Lender has acknowledged in writing its
receipt and approval of such changes so disclosed.
f. Reports. New Borrower represents and warrants to Lender that
all reports, documents, instruments and information delivered
to Lender by New Borrower in connection with New Borrower's
assumption of the Loan: (i) are correct and sufficiently
complete to give Lender accurate knowledge of their subject
matter; and (ii) do not contain any misrepresentation of a
material fact or omission of a material fact which omission
makes the provided information misleading.
g. New Borrower Location. New Borrower's chief executive office
is located at the following address: 1521 Westbranch Drive,
Suite 200, McLean, VA 22102. New Borrower is an organization
organized solely under the laws of the State of Delaware. All
organizational documents of New Borrower delivered to Lender
are complete and accurate in every respect. New Borrower's
legal name is exactly as shown on page one of this Agreement.
New Borrower shall not change New Borrower's name or, as
applicable, New Borrower's chief executive office, or the
jurisdiction in which New Borrower is organized, without
giving Lender at least 30 days' prior written notice.
h. No Adverse Change. New Borrower represents and warrants to
Lender that since the date of the financial statements for New
Borrower and New Guarantor submitted by New Borrower in
connection with its application to assume the Loan, there has
occurred no adverse change in the financial condition of New
Borrower or New Guarantor.
i. No Pledge of Equity Interests. New Borrower represents and
warrants to Lender that no equity interest in New Borrower or
in any entity that, directly or indirectly, owns an equity
interest in New Borrower has been pledged, hypothecated or
otherwise encumbered as security for any obligation, and that
no portion of the capital contributed to New Borrower,
directly or indirectly, in connection with New Borrower's
acquisition of the Property consists of borrowed funds.
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9. MODIFICATION TO CASH MANAGEMENT AGREEMENT. New Borrower and Lender
hereby agree that the Cash Management Agreement is amended as
provided in this Section 9:
a. Recital C of the Cash Management Agreement is hereby amended
by deleting the identifying account number of the Restricted
Account, which number appears in the fifth line of Recital C
and replacing it with the following number, which shall
hereafter be the identifying account number for the Restricted
Account.: 4121279590.
b. Section 1.1 of the Cash Management Agreement is hereby amended
by the deleting the second-to-last sentence thereof and
substituting therefor the following:
"The Restricted Account and Excess Cash Flow Subaccount
shall be assigned the federal tax identification number
of Borrower, which number is 91-2198700".
c. Section 4.1(a) (ii) of the Cash Management Agreement is hereby
amended by deleting the second sentence thereof and
substituting therefor the following:
"Borrower has established an account at Briggs Bank and
Trust Company; account name: ACI06 Champaign IL LLC;
Bank's ABA # 051404260
("Borrower's Operations Account")."
10. MODIFICATION TO SECURITY INSTRUMENT
a. KEY PERSON OR ENTITY. New Borrower, Borrower and Lender hereby
agree that Section 7.1(a) (vi) of the Security Instrument is
hereby deleted in its entirety.
b. "ACTUAL KNOWLEDGE" STANDARD. The parenthetical in the first
paragraph in Section 5.1 is replaced by the following:
"("actual knowledge" means the knowledge of the Borrower based
solely on the Purchase and Sale Agreement dated November 22,
2005 between, Gladstone Commercial Limited Partnership and
Stonewater UIS Funding LLC, as amended, and as assigned by
Gladstone Commercial Limited Partnership to Borrower, and/or
the conveyance documents delivered pursuant thereto, and
Borrower's good faith due diligence investigation in
connection with the acquisition of the Property)"
11. MODIFICATION TO NOTE. Paragraph 3.5 of Exhibit A is amended by
striking the following words, proper names and figures:
"Bank Name: LaSalle National Bank
ABA Routing No.: 071000505
Account Name: Stonewater DOX Funding LLC
Reference: Amdocs
Advise: John Reinsma, Ext. 4-0282"
and replacing them with:
"Bank Name: Briggs Bank and Trust Company
ABA Routing No.: 051404260
Account Name: ACI06 Champaign IL LLC
Reference: Amdocs
Advise: Matt Tucker "
12. TRANSFERS OF GLADSTONE COMMERCIAL CORPORATION. Lender hereby
acknowledges and agrees that, notwithstanding anything set forth
herein or in the Loan Documents, the trading or issuance of shares
or other securities of Gladstone Commercial Corporation, a Maryland
corporation, in the public or private markets shall not constitute a
Transfer under Section 6.15 of the Security Instrument.
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13. WAIVER OF ACCELERATION. Lender hereby agrees that it shall not
exercise its right to cause all sums secured by the Security
Instrument to become immediately due and payable because of the
conveyance of the Property and the Collateral from Borrower to New
Borrower; provided, however, Lender reserves its right under the
terms of the Security Instrument or any other Loan Document to
accelerate all principal and interest in the event of any subsequent
sale, transfer, encumbrance or other conveyance of the Property, the
Collateral or any interest in New Borrower, except as permitted by
the Loan Documents.
14. HAZARDOUS MATERIALS. Without in any way limiting any other provision
of this Agreement, New Borrower and Borrower expressly reaffirm as
of the date hereof, and New Borrower reaffirms continuing hereafter:
(a) each and every representation and warranty in the Loan Documents
respecting "HAZARDOUS MATERIALS"; and (b) each and every covenant
and indemnity in the Loan Documents respecting "HAZARDOUS
MATERIALS".
15. MULTIPLE PARTIES. If more than one person or entity has signed this
Agreement as New Borrower or Borrower, then all references in this
Agreement to New Borrower or Borrower shall mean each and all of the
persons so signing, as applicable. The liability of all persons and
entities signing shall be joint and several with all others
similarly liable.
16. CONFIRMATION OF SECURITY INTEREST. Nothing contained herein shall
affect or be construed to affect any lien, charge or encumbrance
created by any Loan Document or the priority of that lien, charge or
encumbrance. All assignments and transfers by Borrower to New
Borrower are subject to any security interest(s) held by Lender.
17. NOTICES. All notices to be given to New Borrower pursuant to the
Loan Documents shall be addressed as follows:
ACI06 Champaign IL LLC
c/o Gladstone Commercial Corporation
1521 Westbranch Drive - Suite 200
McLean, VA 22102
Attention: Danielle Seidman
Facsimile: (703) 287-5801
With a copy to:
Dickstein Shapiro Morin & Oshinsky LLP
2101 L Street, NW
Washington, DC 20037
Attn: James D. Kelly, Esq.
Facsimile: (202) 887-0689
18. INTEGRATION; INTERPRETATION. The Loan Documents, including this
Agreement, contain or expressly incorporate by reference the entire
agreement of the parties with respect to the matters contemplated
herein and supersede all prior negotiations. The Loan Documents
shall not be modified except by written instrument executed by
Lender and New Borrower. Any reference in any of the Loan Documents
to the Property or the Collateral shall include all or any parts of
the Property or the Collateral.
19. SUCCESSORS AND ASSIGNS. This Agreement is binding upon and shall
inure to the benefit of the heirs, successors and assigns of the
parties but subject to all prohibitions of transfers contained in
any Loan Document.
20. ATTORNEYS' FEES; ENFORCEMENT. If any attorney is engaged by Lender
to enforce, construe or defend any provision of this Agreement, or
as a consequence of any default under or breach of this Agreement,
with or
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without the filing of any legal action or proceeding, New
Borrower shall pay to Lender, upon demand, the amount of all
attorneys' fees and costs reasonably incurred by Lender in
connection therewith, together with interest thereon from the date
of such demand at the rate of interest applicable to the principal
balance of the Note as specified therein.
21. ONE-TIME RIGHT OF TRANSFER OF PROPERTY. The parties acknowledge that
Section 4 of Exhibit A to Promissory Note attached to and forming a
part of the Note provides that Lender shall, one (1) time only,
consent to the voluntary sale or exchange of all of the Property,
all subject, however, to the terms and conditions set forth therein.
The parties agree that this Agreement and the actions to be taken as
contemplated herein shall constitute such one consent and that
hereafter, Lender shall not be required to consent to any further
such sale or exchange.
22. MISCELLANEOUS. This Agreement shall be governed and interpreted in
accordance with the laws of the jurisdiction(s) specified in the
other Loan Documents as governing the other Loan Documents. In any
action brought or arising out of this Agreement, Borrower and New
Borrower, and general partners, members and joint venturers of them,
hereby consent to the jurisdiction of any state or federal court
having proper venue as specified in the other Loan Documents and
also consent to the service of process by any means authorized by
the law of such jurisdiction(s). Except as expressly provided
otherwise herein, all terms used herein shall have the meaning given
to them in the other Loan Documents. Time is of the essence of each
term of the Loan Documents, including this Agreement. If any
provision of this Agreement or any of the other Loan Documents shall
be determined by a court of competent jurisdiction to be invalid,
illegal or unenforceable, that portion shall be deemed severed
therefrom and the remaining parts shall remain in full force as
though the invalid, illegal, or unenforceable portion had not been a
part thereof.
23. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered will be
deemed an original and all of which taken together will be deemed to
be one and the same instrument.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, Borrower, Guarantor, New Borrower, New Guarantor and Lender
have caused this Agreement to be duly executed as of the date first above
written.
LENDER:
LASALLE BANK NATIONAL ASSOCIATION, as Trustee for Bear Stearns Commercial
Mortgage Securities, Inc., Commercial Mortgage Securities Pass-Through
Certificates Series 2004 - PWR3
By: WELLS FARGO BANK, NATIONAL ASSOCIATION, as Master Servicer under the
Pooling and Servicing Agreement dated March 1, 2004, by and between Bear
Stearns Commercial Mortgage Securities, Inc., Prudential Asset Resources,
Inc., Wells Fargo Bank, National Association, Arcap Servicing, Inc.,
LaSalle Bank National Association, ABN AMRO Bank N.V. and The Prudential
Insurance Company of America
By: _______________________________
Name: _______________________________
Title: _______________________________
[Signatures continued on next page]
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BORROWER
STONEWATER DOX FUNDING LLC,
a Delaware limited liability company
By: __________________________________
Name: Constantine Dakolias
Title: Vice President
GUARANTOR
STONEWATER FUNDING LLC,
a Delaware limited liability company
By: __________________________________
Name: Constantine Dakolias
Title: Vice President
[Signatures continued on next page]
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NEW BORROWER
ACI06 CHAMPAIGN IL LLC,
a Delaware limited liability company
By: ____________________________
Name: ____________________________
Title: ____________________________
NEW GUARANTOR
GLADSTONE COMMERCIAL CORPORATION,
a Maryland corporation
By: __________________________
Name: __________________________
Title: __________________________
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Recording Requested by Exhibit A
and when recorded return to:
PEPLER MASTROMONACO LLP
100 First Street, 25th Floor
San Francisco, California 94105
Attention: Barrie Cowan, Esq.
Loan No.: 31-0901388
MEMORANDUM OF ASSUMPTION AGREEMENT
STONEWATER DOX FUNDING, LLC, a Delaware limited liability company ("BORROWER"),
with a mailing address at c/o Stonewater Partners, 237 Mamaroneck Avenue, Suite
406, White Plains, NY 10605, STONEWATER FUNDING LLC, a Delaware limited
liability company ("GUARANTOR"), with a mailing address at c/o Stonewater
Partners, 237 Mamaroneck Avenue, Suite 406, White Plains, NY 10605, ACI06
CHAMPAIGN IL LLC, a Delaware limited liability company, ("NEW BORROWER"), with a
mailing address at 1521 Westbranch Drive, Suite 200, McLean, VA 22102, GLADSTONE
COMMERCIAL CORPORATION ("NEW GUARANTOR"), with a mailing address at 1521
Westbranch Drive, Suite 200, McLean, VA 22102, and LASALLE BANK NATIONAL
ASSOCIATION, as Trustee for Bear Stearns Commercial Mortgage Securities, Inc.,
Commercial Mortgage Securities Pass-Through Certificates Series 2004 - PWR3
("LENDER"), with a mailing address at c/o Wells Fargo Bank, N.A., Commercial
Mortgage Servicing, 1320 Willow Pass Road, Suite 205, Concord, California 94520,
are parties to that certain ASSUMPTION AGREEMENT dated of even date herewith
("ASSUMPTION AGREEMENT"). The undersigned parties agree that all obligations
under that certain Promissory Note Secured by Mortgage ("NOTE") dated November
21, 2003, in the original principal amount of Ten Million and no/100ths Dollars
($10,000,000.00), secured by that certain Mortgage and Absolute Assignment of
Rents and Leases and Security Agreement and Fixture Filing ("SECURITY
INSTRUMENT") recorded November 25, 2003 as Instrument No.2003R52081, in the
office of the Recorder of Champaign County, Illinois ("OFFICIAL RECORDS") the
mortgagee's interest under which was assigned by instrument recorded on May 4,
2004, as Instrument No. 2004R12813, in the Official Records, and all other Loan
Documents (as defined in the Assumption Agreement), have been assumed by New
Borrower upon the terms and conditions set forth in the Assumption Agreement.
The Assumption Agreement is by this reference incorporated herein and made a
part hereof. This Memorandum of Assumption Agreement may be executed in any
number of counterparts, each of which when executed and delivered will be deemed
an original and all of which taken together will be deemed to be one and the
same instrument.
Dated:
February __, 2006
LENDER:
LASALLE BANK NATIONAL ASSOCIATION, as Trustee for Bear Stearns Commercial
Mortgage Securities, Inc., Commercial Mortgage Securities Pass-Through
Certificates Series 2004 - PWR3
By: WELLS FARGO BANK, NATIONAL ASSOCIATION, as Master Servicer under the
Pooling and Servicing Agreement dated March 1, 2004, by and between Bear
Stearns Commercial Mortgage Securities, Inc., Prudential Asset Resources,
Inc., Wells Fargo Bank, National Association, Arcap Servicing, Inc.,
LaSalle Bank National Association, ABN AMRO Bank N.V. and The Prudential
Insurance Company of America
By: __________________________________
Name: __________________________________
Title: __________________________________
BORROWER
STONEWATER DOX FUNDING LLC,
a Delaware limited liability company
By: _____________________________________
Name: Constantine Dakolias
Title: Vice President
GUARANTOR
STONEWATER FUNDING LLC,
a Delaware limited liability company
By: ___________________________________
Name: Constantine Dakolias
Title: Vice President
[Signatures continued on next page]
NEW BORROWER
ACI06 CHAMPAIGN IL LLC,
a Delaware limited liability company
By: __________________________________
Name: __________________________________
Title: __________________________________
NEW GUARANTOR
GLADSTONE COMMERCIAL CORPORATION,
a Maryland corporation
By: _________________________________
Name: _________________________________
Title: _________________________________
16
STATE OF VIRGINIA )
) ss
COUNTY OF FAIRFAX )
On this the _____ day of January, 2006, before me, the undersigned
Notary Public, personally appeared ___________________________, proved to me on
the basis of satisfactory evidence to be the person whose name is subscribed to
the within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person or the entity upon behalf of which the person acted, executed the
instrument.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
My Commission Expires:
- ------------------------------------------
17
STATE OF NEW YORK )
) ss
COUNTY OF WESTCHESTER )
On this the _____ day of January, 2006, before me, the undersigned
Notary Public, personally appeared ___________________________, proved to me on
the basis of satisfactory evidence to be the person whose name is subscribed to
the within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person or the entity upon behalf of which the person acted, executed the
instrument.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
My Commission Expires:
- -------------------------------------------
18
STATE OF NEW YORK )
) ss
COUNTY OF WESTCHESTER )
On this the _____ day of January, 2006, before me, the undersigned
Notary Public, personally appeared ___________________________, proved to me on
the basis of satisfactory evidence to be the person whose name is subscribed to
the within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person or the entity upon behalf of which the person acted, executed the
instrument.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
My Commission Expires:
- ------------------------------------------
19
STATE OF CALIFORNIA )
) ss
COUNTY OF CONTRA COSTA )
On this the _____ day of January, 2006, before me, the undersigned
Notary Public, personally appeared ___________________________, proved to me on
the basis of satisfactory evidence to be the person whose name is subscribed to
the within instrument and acknowledged to me that she executed the same in her
authorized capacity, and that by her signature on the instrument the person or
the entity upon behalf of which the person acted, executed the instrument.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
My Commission Expires:
- -------------------------------------------
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