Exhibit 10.4
Upon recording return to:
Xxxxxxx X. Xxxxxxxx, P.A.
Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000
(Space Above For Recorder's Use Only)
NOTE AND DEED OF TRUST
ASSUMPTION AGREEMENT
(COMM 2002-FL 7; LOAN NO. 903000091)
THIS NOTE AND DEED OF TRUST ASSUMPTION AGREEMENT ("AGREEMENT") is dated
as of April 14, 2004 ("EFFECTIVE DATE"), among LASALLE BANK NATIONAL
ASSOCIATION, A NATIONAL BANKING ASSOCIATION, AS TRUSTEE FOR THE HOLDER OF COMM
2002-FL7 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES ("LENDER"), having an
address at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Re:
COMM 2002-FL 7; Loan No. 903000091; BRE/PARK PLACE, L.L.C., a Delaware limited
liability company ("ORIGINAL BORROWER"), having an address at c/o Blackstone
Real Estate Advisors, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and
XXXXXXX PROPERTIES - PARK PLACE, LLC, a Delaware limited liability company ("NEW
BORROWER"), having an address at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000. New Borrower's taxpayer identification number is 00-0000000.
Original Borrower and New Borrower are hereinafter sometimes collectively
referred to as "BORROWER PARTIES".
PRELIMINARY STATEMENT
A. Original Borrower is the current fee simple owner of that certain
real property ("LAND") and the buildings and improvements thereon
("IMPROVEMENTS"), located at 3333, 3337 and 3345-3355 Xxxxxxxxx Drive, in
Irvine, Orange County, California, more particularly described in EXHIBIT A
attached hereto and made a part hereof (the Land and the Improvements are
hereinafter sometimes collectively referred to as the "PROJECT").
B. Lender is the owner and holder of the Loan Documents described on
EXHIBIT B attached hereto evidencing and/or securing a $123,000,000 loan (the
"LOAN") (such documents, and all other agreements, documents and other
instruments evidencing, securing or in any manner relating to the Loan, all as
may be renewed, consolidated, replaced, extended, substituted, amended or
otherwise modified, shall hereinafter be collectively referred to as the "LOAN
DOCUMENTS"). The Loan is secured by the Project, which Project is described in
and encumbered by the Security Instrument described on EXHIBIT B.
C. New Borrower desires to purchase Original Borrower's interest in the
Project and to assume all of Original Borrower's obligations under the Loan
Documents.
D. A sale of Original Borrower's interest in the Project to, and the
assumption of the Loan by, a third party without the consent of the holder of
the Security Instrument is prohibited by the terms thereof.
E. The Lender has agreed to consent to the following requested actions
(the "REQUESTED ACTIONS"): (i) Original Borrower selling its interest in the
Project to New Borrower, (ii) New Borrower assuming all of Original Borrower's
obligations under the Loan Documents and (iii) Lender recognizing New Borrower
as the Borrower under the Loan and Loan Documents.
F. All terms not defined herein shall have the meaning set forth in the
Loan Agreement.
In consideration of $10.00 paid by each of the parties to the other,
the mutual covenants set forth below, and other good and valuable consideration,
receipt and sufficiency of which are acknowledged, the parties agree as follows:
ARTICLE 1
ACKNOWLEDGMENTS, WARRANTIES AND REPRESENTATIONS
1.1 ORIGINAL BORROWER REPRESENTATIONS. As a material inducement to
Lender to enter into this Agreement and to consent to the Requested Actions,
Original Borrower acknowledges, warrants, represents and agrees to and with
Lender as follows:
(a) Authority of Original Borrower. Original Borrower is a
duly organized, validly existing limited liability company in good standing
under the laws of the State of Delaware and is duly authorized to transact
business in the State of California. Xxxxx X. Xxxxx is a Vice President of
Original Borrower. Xxxxx X. Xxxxx, acting alone, without the joinder of any
other manager, member or officer of Original Borrower or any other party has the
power and authority to execute this Agreement on behalf of and to duly bind
Original Borrower under this Agreement. The execution and delivery of, and
performance under, this Agreement by Original Borrower has been duly and
properly authorized pursuant to all requisite company action and will not (i)
violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to Original Borrower or the certificate of formation or the
operating agreement or any other organizational document of Original Borrower
that would materially impair the Project, the status of Original Borrower or its
ability to operate its business, or (ii) result in a breach of or constitute or
cause a default under any indenture, agreement, lease or instrument to which
Original Borrower is a party or by which the Project may be bound or affected
that would materially impair the Project or Original Borrower's ability to
operate its business.
(b) Compliance with Laws. To Original Borrower's knowledge,
all permits, licenses or other evidences of authority to use and operate the
Project as it is presently being operated and as contemplated by the Loan
Documents are current, valid and in full force and effect. Original Borrower has
not received any written notice from any governmental entity
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claiming that Original Borrower or the Project is not presently in compliance
with any laws, ordinances, rules and regulations bearing upon the use and
operation of the Project.
(c) Rent Roll. The Rent Roll ("RENT ROLL") attached hereto and
made a part hereof as EXHIBIT C is a true, complete and accurate summary of all
tenant leases ("LEASES") affecting the Project as of the date of this Agreement.
(d) Leases. The Leases are the only leases affecting the
Project and are currently in full force and effect. Original Borrower has not
been notified in writing of any uncured landlord default under any of the
Leases; there are no leasing broker's or finder's commissions of any kind due or
to become under any Lease or the Project except as may be applicable to future
lease renewals or expansions; the rents and security deposits under the Leases
shown on the Rent Roll are true and correct in all material respects; Original
Borrower has not received any rents prepaid more than one month in advance or
given any concessions for free or reduced rent under the Leases not disclosed on
the Rent Roll and will not accept any prepaid rents for more than one month in
advance. Except as specified on the Rent Roll, all tenants at the Project are
currently in possession of their leased premises and are operating businesses
from their leased premises.
(e) REA's. The REAs affecting the Project are currently in
full force and effect. Original Borrower is unaware of any uncured default under
any of the REAs by any party thereto and all sums payable by Original Borrower
under the REAs have been paid in full.
(f) Title to Project and Legal Proceedings. Original Borrower
is the current fee simple owner of the Project. There are no pending or to
Original Borrower's current actual knowledge threatened suits, judgments,
arbitration proceedings, administrative claims, executions or other legal or
equitable actions or proceedings against Original Borrower or the Project that
if decided adversely to Original Borrower would have a material adverse affect
on Original Borrower or the Project; or any pending or threatened condemnation
proceedings or annexation proceedings affecting the Project; or any agreements
to convey any portion of the Project, or any rights thereto to any person or
entity not disclosed in this Agreement, including, without limitation, any
government or governmental agency.
1.2 ACKNOWLEDGMENTS, WARRANTIES AND REPRESENTATIONS OF NEW BORROWER. As
a material inducement to Lender to enter into this Agreement and to consent to
the Requested Actions, New Borrower acknowledges, warrants, represents and
agrees to and with Lender as follows:
(a) Authority of New Borrower.
(i) New Borrower. New Borrower is a duly organized,
validly existing limited liability company in good standing under the laws of
the State of Delaware and is duly authorized to transact business in the State
of California. MP-Park Place Senior Mezzanine, LLC, a Delaware limited liability
company ("MP SENIOR"), the sole member of New Borrower, acting alone without the
joinder of any other member or manager of New Borrower or any other party, has
the power and authority to execute this Agreement on behalf of and to duly bind
New Borrower under this Agreement and the Loan Documents. The execution and
delivery
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of, and performance under, this Agreement by New Borrower has been duly and
properly authorized pursuant to all requisite company action and will not (i)
violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to New Borrower or the certificate of formation or the operating
agreement of New Borrower or any other organizational document of New Borrower,
or (ii) result in a breach of or constitute or cause a default under any
indenture, agreement, lease or instrument to which New Borrower is a party or by
which the Project may be bound or affected.
(ii) MP Senior. MP Senior is a duly organized,
validly existing limited liability company in good standing under the laws of
the State of Delaware and, if required by California law, is authorized to
transact business in the State of California. MP-Park Place Junior Mezzanine,
LLC, a Delaware limited liability company ("MP JUNIOR") is the sole member of MP
Senior. MP Junior, acting alone without the joinder of any other member or
manager of MP Senior or any other party, has the power and authority to execute
this Agreement on behalf of and to duly bind MP Senior and New Borrower under
this Agreement and the Loan Documents. The execution and delivery of, and
performance under, this Agreement by MP Senior, as the sole member of New
Borrower, has been duly and properly authorized pursuant to all requisite
company action and will not (i) violate any provision of any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to MP Senior or the certificate of
formation or the operating agreement of MP Senior or any other organizational
document of MP Senior, or (ii) result in a breach of or constitute or cause a
default under any indenture, agreement, lease or instrument to which MP Senior
is a party or by which the Project may be bound or affected.
(iii) MP Junior. MP Junior is a duly organized,
validly existing limited liability company in good standing under the laws of
the State of Delaware and, if required by California law, is authorized to
transact business in the State of California. Xxxxxxx Properties, L.P., a
Maryland limited partnership ("XXXXXXX XX") is the sole member of MP Junior.
Xxxxxxx XX, acting alone without the joinder of any other member or manager of
MP Junior or any other party, has the power and authority to execute this
Agreement on behalf of and to duly bind MP Junior under this Agreement and the
Loan Documents. The execution and delivery of, and performance under, this
Agreement by MP Junior, as the sole member of MP Senior, has been duly and
properly authorized pursuant to all requisite company action and will not (i)
violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to MP Junior or the certificate of formation or the operating
agreement of MP Junior or any other organizational document of MP Junior, or
(ii) result in a breach of or constitute or cause a default under any indenture,
agreement, lease or instrument to which MP Junior is a party or by which the
Project may be bound or affected.
(iv) Xxxxxxx XX. Xxxxxxx XX is a duly organized,
validly existing limited partnership in good standing under the laws of the
State of Maryland and, if required by California law, is authorized to transact
business in the State of California. Xxxxxxx Properties, Inc., a Maryland
corporation ("XXXXXXX INC.") is the general partner of Xxxxxxx XX. Xxxxxxx Inc.,
acting alone without the joinder of any other partner of Xxxxxxx XX or any other
party, has the power and authority to execute this Agreement on behalf of and to
duly bind Xxxxxxx XX
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under this Agreement and the Loan Documents. The execution and delivery of, and
performance under, this Agreement by Xxxxxxx XX, as the sole member of MP
Senior, has been duly and properly authorized pursuant to all requisite
partnership action and will not (i) violate any provision of any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to Xxxxxxx XX or the certificate of
limited partnership agreement or the limited partnership of Xxxxxxx XX or any
other organizational document of Xxxxxxx XX, or (ii) result in a breach of or
constitute or cause a default under any indenture, agreement, lease or
instrument to which Xxxxxxx XX is a party or by which the Project may be bound
or affected.
(v) Xxxxxxx Inc. Xxxxxxx Inc. is a duly organized,
validly existing corporation in good standing under the laws of the State of
Maryland and, if required by California law, is authorized to transact business
in the State of California. The execution and delivery of, and performance under
this Agreement by Xxxxxxx Inc. has been duly and properly authorized pursuant to
all requisite corporate action and will not (i) violate any provision of any
law, rule, regulation, order, writ, judgment, injunction, decree, determination
or award presently in effect having applicability to Xxxxxxx Inc. or the
articles of incorporation or bylaws of Xxxxxxx Inc. or any other organizational
document of Xxxxxxx Inc., or (ii) result in a breach of or constitute or cause a
default under any indenture, agreement, lease or instrument to which Xxxxxxx
Inc. is a party or by which the Project may be bound or affected.
(b) Financial Statements. The financial statements and other
information ("FINANCIAL STATEMENTS") of Xxxxxxx XX and Xxxxxxx Inc. which have
been previously delivered to Lender are true, complete and accurate in every
material respect and accurately represent the financial condition of Xxxxxxx XX
and Xxxxxxx Inc. as of the date thereof. There has not been any material adverse
change to the financial condition of Xxxxxxx XX or Xxxxxxx Inc. between the date
of the Financial Statements and the date of this Agreement. New Borrower also
acknowledges and agrees to cause Xxxxxxx XX and Xxxxxxx Inc. to timely comply
with all financial requirements set forth in the Loan Documents, including,
without limitation, those set forth in Section 11.2 of the Loan Agreement. New
Borrower acknowledges that the Financial Statements have been provided to Lender
to induce Lender to enter into this Agreement and are being relied upon by
Lender for such purposes.
(c) Bankruptcy Proceedings. None of New Borrower or any of the
entities described in Section 1.2(a) (collectively, "RELATED ENTITIES"), has
been a party to any Debtor Proceeding (as hereinafter defined) within seven (7)
years prior to the date of this Agreement.
(d) Defaults on Other Indebtedness. None of New Borrower, MP
Junior nor MP Senior has materially defaulted under its or their respective
obligations with respect to any other material indebtedness, and, with respect
to immaterial defaults by New Borrower, MP Junior or MP Senior with respect to
any other material indebtedness, such immaterial defaults have been cured prior
to the date of this Agreement.
(e) Title to Project and Legal Proceedings. There are no
pending or, to the best of New Borrower's knowledge, threatened suits,
unsatisfied judgments, arbitration proceedings, administrative claims,
executions or other legal or equitable actions or proceedings against New
Borrower or the Project.
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(f) New Borrower's Organizational Documents. New Borrower is a
Single Purpose Entity as such term is defined in the Loan Agreement. New
Borrower is not in violation and will not violate of any of the terms,
covenants, conditions or other provisions of its organizational documents or the
Single Purpose Entity requirements set forth in the Loan Agreement.
(g) Assets of New Borrower. The only assets of New Borrower
are the Project together with any and all rights associated therewith and Cash
or Cash Equivalents.
(h) Management of Project. Upon completion of the Requested
Actions, Xxxxxxx XX will manage the Project in accordance with the terms of that
certain Property Management and Leasing Agreement dated as of the Effective Date
hereof between New Borrower and Xxxxxxx XX (the "NEW MANAGEMENT Agreement"). All
references to the term "Management Agreement" and "Manager" in the Loan
Agreement and the other Loan Documents shall hereinafter mean and refer to the
New Management Agreement, and Xxxxxxx XX, respectively. New Borrower covenants
and agrees to comply with all terms and conditions of the Loan Documents
concerning the management of the Project, including without limitation the
obligation to obtain Lender's consent to the management of the Property by any
entity other than Xxxxxxx XX or a Qualified Manager.
(i) Bona Fide Sale. The Requested Actions represent a bona
fide sale, transfer or conveyance for cash or equivalent consideration.
(j) Mezzanine Loans. In connection with the Requested Actions:
(i) MP Senior will assume the Mezzanine Loan and no modifications will be made
to any of the terms of the Mezzanine Loan Documents, and (ii) MP Junior will
assume the Junior Tier Mezzanine Loan and no modifications will be made to any
of the terms of the Junior Tier Mezzanine Loan Documents.
(k) New Borrower Parties' Interests. Except for the assumption
of the Mezzanine Loan and the Junior Tier Mezzanine Loan, as such terms are
defined in the Loan Agreement, none of New Borrower, MP Senior, MP Junior nor
Xxxxxxx XX are obtaining a loan to finance its interest in New Borrower or the
Project or pledging its interest in New Borrower, MP Senior or MP Junior to any
party.
1.3 ACKNOWLEDGMENTS, WARRANTIES AND REPRESENTATIONS OF BORROWER
PARTIES. As a material inducement to Lender to enter into this Agreement and to
consent to Requested Actions, each of the Borrower Parties as to itself, only,
acknowledges, warrants, represents and agrees to and with Lender as follows:
(a) Indebtedness. As of March 25, 2004, the outstanding
principal balance of the Loan was $ 123,000,000, outstanding late charges total
$0 and outstanding default interest totals $0 and the following escrow and
reserve balances (collectively, "ESCROW BALANCES") are being held by Lender: (i)
a Tax Reserve Account balance of $727,924.83; (ii) an Insurance Reserve Account
balance of $1,384,237.64; (iii) a Structural Reserve Escrow balance of
$425,961.04; (iv) a REA Charges Reserve Account balance of $0; (v) a Deferred
Maintenance
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Reserve balance of $268,476.05; and (vi) a TI and Leasing Reserve Account
balance of $398,572.29. Further, Borrower Parties acknowledge and agree that
Lender will continue to hold the Escrow Balances for the benefit of New Borrower
in accordance with the terms of the Loan Documents. In the event of an error or
omission of the foregoing information, neither Lender nor New Borrower in any
way prejudices their respective rights and entitlements to all monies lawfully
due Lender or New Borrower as applicable. By its execution hereof, Lender
represents and warrants to New Borrower that to Lender's actual knowledge, (i)
the foregoing amounts are correct and there are no other reserve balances held
by Lender; (ii) all interest and principal payments due under the Loan Documents
through and including March 15, 2004 have been paid and the next payment of
interest and reserve is due on April 15, 2004 in the amount of $895,754.67,
(iii) Lender has not issued any written notices of default to Original Borrower
which have not been cured, and (iv) there are no existing material defaults
under the Loan Documents.
(b) Loan Documents. Original Borrower represents that the Loan
Documents constitute valid and legally binding obligations of Original Borrower
enforceable against Original Borrower and the Project in accordance with their
terms but subject to the terms of the release provisions contained in Section
1.4 hereof. New Borrower represents that from and after the date hereof, the
Loan Documents constitute valid and legally binding obligations of New Borrower
and the Project. Borrower Parties have no defenses, setoffs, claims,
counterclaims or causes of action of any kind or nature whatsoever against
Lender or any of Lender's predecessors in interest, and any subsidiary or
affiliate of Lender and all of the past, present and future officers, directors,
contractors, employees, agents, servicers (including, but not limited to, Lennar
Partners, Inc.), attorneys, representatives, participants, successors and
assigns of Lender and Lender's predecessors in interest (collectively, "LENDER
PARTIES") or with respect to (i) the Loan, (ii) the Loan Documents, (iii) the
"Debt" and the "Obligations" (as defined in the Loan Agreement and Security
Instrument, respectively), (iv) any other documents or instruments now or
previously evidencing, securing or in any way relating to the Loan, (v) the
administration or funding of the Loan or (vi) the development, operation or
financing of the Project. To the extent any of Borrower Parties would be deemed
to have any such defenses, setoffs, claims, counterclaims or causes of action,
any such Borrower Party knowingly waives and relinquishes them. New Borrower
acknowledges that it has received copies of all of the Loan Documents.
(c) Bankruptcy. Each of the Borrower Parties has no current
intent to (i) file any voluntary petition under any Chapter of the Bankruptcy
Code, Title 11, U.S.C.A. ("BANKRUPTCY CODE"), or in any manner to seek any
proceeding for relief, protection, reorganization, liquidation, dissolution or
similar relief for debtors ("DEBTOR PROCEEDING") under any local, state, federal
or other insolvency law or laws providing relief for debtors or (ii) directly or
indirectly to cause any involuntary petition under any Chapter of the Bankruptcy
Code to be filed against any of Borrower Parties, or (iii) directly or
indirectly to cause the Project or any portion or any interest of any of
Borrower Parties in the Project to become the property of any bankrupt estate or
the subject of any Debtor Proceeding.
(d) No Default. To Original Borrower's knowledge and to New
Borrower's actual knowledge, except as specified below, no event, fact or
circumstance has occurred or failed to occur which constitutes, or with the
lapse or passage of time, giving of notice or both,
7
could constitute a default or "EVENT OF DEFAULT" as such term is defined in the
Loan Agreement. Notwithstanding the foregoing, New Borrower does not make any
representations or warranties regarding the organizational documents or status
of Original Borrower or the truth or accuracy of any document or information
submitted by Original Borrower to Original Lender or Lender; however, New
Borrower does not have any actual knowledge that any document or information
submitted is materially misleading or materially inaccurate.
(e) Further Assurances. Each of Borrower Parties shall execute
and deliver to Lender such agreements, instruments, documents, financing
statements and other writings as may be reasonably requested from time to time
by Lender to perfect and to maintain the perfection of Lender's security
interest in and to the Project, and to consummate the transactions contemplated
by or in the Loan Documents and this Agreement.
1.4 REAFFIRMATIONS AND RELEASE. Original Borrower reaffirms, solely for
the benefit of Lender, the truth and accuracy in all material respects of all
representations and warranties set forth the Loan Documents as if made on the
date hereof except that (i) the Rent Roll referenced in the Loan Agreement shall
mean and refer to the Rent Roll attached hereto and (ii) Schedules I, III, VI
and VIII attached hereto shall replace such corresponding Schedules in the Loan
Agreement. New Borrower, to the best of its actual knowledge, affirms and
confirms the truth and accuracy of all representations and warranties set forth
in the Loan Documents as if made on the date hereof. Original Borrower
acknowledges and agrees that nothing contained in this Agreement, nor the
Requested Actions, shall release or relieve Original Borrower from its
obligations, agreements, duties, liabilities, covenants and undertakings under
the Loan Documents arising prior to the date hereof, provided, however, by its
execution hereof, Lender on behalf of itself and all Lender Parties hereby
releases Original Borrower and its members, managers, officers, agents,
employees and contractors for any acts or events occurring or obligations
arising under the Loan Documents (with the exception of the Environmental
Indemnity, the provisions for the release of Original Borrower being set forth
in the Reaffirmation of Environmental Indemnity being executed in connection
herewith).
ARTICLE 2
COVENANTS OF BORROWER PARTIES
Each of the Borrower Parties as to itself only, covenants and agrees
with Lender that:
2.1 ASSUMPTION OF LOAN. New Borrower hereby assumes the indebtedness
due under the Note and all of Original Borrower's other obligations, as grantor,
mortgagor, borrower, trustor, indemnitor, guarantor, or maker, as the case may
be, under the Loan Documents to the same extent as if New Borrower had signed
such instruments. New Borrower agrees to comply with and be bound by all the
terms, covenants and agreements, conditions and provisions set forth in the Loan
Documents.
2.2 ASSUMPTION FEE. Simultaneously with or prior to the execution
hereof, any or both of Borrower Parties (pursuant to an agreement between them)
shall pay to or has paid Lender: (i) a transfer fee equal to $615,000, which is
0.5% of the outstanding principal balance of the Loan; (ii) an administration
fee equal to $125.00; (iii) a flood determination fee equal to
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$15.00; (iv) an insurance review fee equal to $400.00; and (v) a credit review
fee equal to $100.00; each of which Borrower Parties agree are fees for new
consideration and are not interest charged in connection with the Loan.
2.3 RELEASE AND COVENANT NOT TO XXX. Each of the Borrower Parties, on
behalf of itself and all of its respective heirs, successors and assigns, hereby
remises, releases, acquits, satisfies and forever discharges Lender Parties from
any and all manner of debts, accountings, bonds, warranties, representations,
covenants, promises, contracts, controversies, agreements, liabilities,
obligations, expenses, damages, judgments, executions, actions, inactions,
claims, demands and causes of action of any nature whatsoever, at law or in
equity, known or unknown, either now accrued or subsequently maturing, which any
of Borrower Parties now has or hereafter can, shall or may have by reason of any
matter, cause or thing, from the beginning of the world to and including the
Effective Date, including, without limitation, matters arising out of or
relating to (a) the Loan, including, but not limited to, its administration or
funding, (b) the Loan Documents, (c) the Debt and the Obligations and as
otherwise described in the Loan Documents, (d) the Indebtedness described in
Section 1.3 hereof, and (e) the Project or its development, financing and
operation. Each of the Borrower Parties, for itself and all of its respective
heirs, successors and assigns, covenants and agrees never to institute or cause
to be instituted or continue prosecution of any suit or other form of action or
proceeding of any kind or nature whatsoever against any of Lender Parties by
reason of or in connection with any of the foregoing matters, claims or causes
of action arising during the period from the beginning of the world to the
Effective Date. As further consideration for the agreements herein contained,
Borrower Parties hereby agree, represent and warrant that the matters released
in this Agreement are not limited to matters which are known or disclosed, and
Borrower Parties hereby waive any and all rights and benefits with respect to
any matters arising out of or relating to any matter, cause or thing, from the
beginning of the world to and including the Effective Date, including without
limitation matters arising out of or relating to (i) the Loan, including, but
not limited to, its administration or funding, (ii) the Loan Documents, (iii)
the "Indebtedness" and the "Obligations" described in the Loan Documents, and
(d) the Project or its development, financing and operation which Borrower
Parties now have, or in the future may have, conferred upon Borrower Parties by
virtue of the provisions of Section 1542 of the Civil Code of the State of
California which provides as follows:
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.
In this connection, Borrower Parties hereby agree, represent, and warrant that
they realize and acknowledge that factual matters now unknown to one or more of
the Borrower Parties may have given or may hereafter give rise to causes of
action, claims, demands, debts, controversies, damages, costs, losses and
expenses which are presently unknown, unanticipated and unsuspected, and
Borrower Parties further agree, represent and warrant that the release herein
contained has been negotiated and agreed upon in light of that realization and
that Borrower
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Parties nevertheless hereby intend to release, discharge and acquit all parties
so released from any such unknown claims.
2.4 SAME INDEBTEDNESS; PRIORITY OF LIENS NOT AFFECTED. This Agreement
and the execution of other documents contemplated hereby do not constitute the
creation of a new debt or the extinguishment of the debt evidenced by the Loan
Documents, nor will they in any way affect or impair the liens and security
interests created by the Loan Documents, which New Borrower acknowledges to be
valid and existing liens and security interests in the Project. New Borrower
agrees that the lien and security interests created by the Security Instrument
continue to be in full force and effect, unaffected and unimpaired by this
Agreement or by the transfer of the Project or any collateral described in
financing statements filed in connection with the Loan Documents and that said
liens and security interests shall so continue in their perfection and priority
until the debt secured by the Loan Documents is fully discharged.
2.5 PAYMENT OF TRANSACTION COSTS AND EXPENSES. Any or both of Borrower
Parties (pursuant to an agreement between them) shall pay at the time of
execution of this Agreement by Lender: (a) the legal fees and disbursements of
Lender's counsel, Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx LLP, in connection with
the preparation of this Agreement and the transactions contemplated in this
Agreement; (b) all recording costs and documentary stamps, or other taxes if
any, due upon the recording of this Agreement; and (c) the costs of updating
Lender's policy of title insurance insuring the Security Instrument to a current
date and endorsing such policy to include this Agreement in the description of
the Security Instrument with no additional exceptions, or, at Lender's option,
the cost of obtaining a new Lender's policy of title acceptable to Lender
insuring the Security Instrument as affected by this Agreement.
ARTICLE 3
ADDITIONAL PROVISIONS
3.1 CONSENT OF LENDER. Subject to the terms of this Agreement, Lender
hereby consents to the Requested Actions. Borrower Parties agree that this
Agreement shall not be deemed an agreement by Lender to consent to any other
transfer or conveyance of the Project or assumption of the Loan, or a consent to
any secondary financing or secondary encumbrance on the Project or New Borrower
or any interests in New Borrower except the existing Junior and Senior Mezzanine
Loans.
3.2 UCC FILINGS. Each of the Borrower Parties hereby grants and
confirms unto Lender a first lien priority interest in all the Collateral (as
such term is defined in the Security Instrument) to the maximum extent permitted
by the Uniform Commercial Code ("UCC"). Each of the Borrower Parties hereby
further consents to the filing of any financing statements or UCC forms required
to be filed in the applicable states or any other applicable filing office
(collectively "FILINGS") in order to perfect said interest and, notwithstanding
anything contained in any of the Loan Documents to the contrary, in accordance
with the UCC, as amended subsequent to the making of the Loan, said Filings may
be made by Lender without the consent or signature of either of the Borrower
Parties.
10
3.3 ADDITIONAL DOCUMENTS. Contemporaneously with the execution and
delivery of this Agreement and as a material inducement to Lender to enter into
this Agreement: (a) Borrower Parties hereby authorize Lender to file and/or
record UCC Financing Statements for filing with the state of organization of New
Borrower and/or file UCC Amendments amending the existing Financing Statements
for recording in the Records and for filing with the Delaware Secretary to add
New Borrower as an additional debtor; (b) Blackstone Real Estate Partners III,
LP, Blackstone Real Estate Partners III.TE.1 LP, Blackstone Real Estate Partners
III.TE.2 LP, Blackstone Real Estate Partners III TE3, LP, Blackstone Real Estate
Holdings III LP and Blackstone Real Estate Partners III F.F., L.P., each a
Delaware limited partnership (collectively, "ORIGINAL INDEMNITOR") shall have
executed and delivered to Lender a Reaffirmation of Guaranty of Recourse
Obligations and of Consent of Indemnitors; (c) Original Borrower shall have
executed and delivered to Lender a Reaffirmation of Environmental Indemnity, (d)
New Borrower shall have executed and delivered to Lender an Environmental
Indemnity; (e) Xxxxxxx XX shall have executed and delivered to Lender a
Guaranty; (f) Xxxxxxx XX shall have executed and delivered to Lender a Manager's
Consent; and (g) Lender and New Borrower shall have entered into a Lock Box
Agreement; all in form and content reasonably acceptable to Lender.
3.4 REFERENCES TO LOAN DOCUMENTS. All references to the term "LOAN
DOCUMENTS" in the Security Instrument, the Loan Agreement and the other Loan
Documents shall hereinafter mean and refer to: (i) all of the Loan Documents
described therein; (ii) this Agreement; and (iii) any and all other agreements,
documents and other instruments evidencing, securing or in any manner related to
the documents executed in connection with or otherwise pertaining to this
Agreement.
ARTICLE 4
MISCELLANEOUS PROVISIONS
4.1 NO LIMITATION OF REMEDIES. No right, power or remedy conferred upon
or reserved to or by Lender in this Agreement is intended to be exclusive of any
other right, power or remedy conferred upon or reserved to or by Lender under
this Agreement, the Loan Documents or at law, but each and every remedy shall be
cumulative and concurrent, and shall be in addition to each and every other
right, power and remedy given under this Agreement, the Loan Documents or now or
subsequently existing at law.
4.2 NO WAIVERS. Except as otherwise expressly set forth in this
Agreement, nothing contained in this Agreement shall constitute a waiver of any
rights or remedies of Lender under the Loan Documents or at law. No delay or
failure on the part of any party hereto in the exercise of any right or remedy
under this Agreement shall operate as a waiver, and no single or partial
exercise of any right or remedy shall preclude other or further exercise thereof
or the exercise of any other right or remedy. No action or forbearance by any
party hereto contrary to the provisions of this Agreement shall be construed to
constitute a waiver of any of the express provisions. Any party hereto may in
writing expressly waive any of such party's rights under this Agreement without
invalidating this Agreement.
4.3 SUCCESSORS OR ASSIGNS. Whenever any party is named or referred to
in this Agreement, the heirs, executors, legal representatives, successors,
successors-in-title and assigns
11
of such party shall be included. All covenants and agreements in this Agreement
made by a party hereto shall bind and inure to the benefit of the heirs,
executors, legal representatives, successors, successors-in-title and assigns of
such party, whether so expressed or not.
4.4 CONSTRUCTION OF AGREEMENT. Each party hereto acknowledges that it
has participated in the negotiation of this Agreement and no provision shall be
construed against or interpreted to the disadvantage of any party hereto by any
court or other governmental or judicial authority by reason of such party having
or being deemed to have structured, dictated or drafted such provision. Each of
the Borrower Parties at all times has had access to an attorney in the
negotiation of the terms of and in the preparation and execution of this
Agreement. Each of the Borrower Parties has had the opportunity to review and
analyze this Agreement for a sufficient period of time prior to execution and
delivery. No representations or warranties have been made by or on behalf of
Lender, or relied upon by Borrower Parties, pertaining to the subject matter of
this Agreement, other than those set forth in this Agreement. All prior
statements, representations and warranties, if any, are totally superseded and
merged into this Agreement, which represent the final and sole agreement of the
parties with respect to the subject matters. All of the terms of this Agreement
were negotiated at arm's length, and this Agreement was prepared and executed
without fraud, duress, undue influence or coercion of any kind exerted by any of
the parties upon the others. The execution and delivery of this Agreement is the
free and voluntary act of each of the Borrower Parties.
4.5 INVALID PROVISION TO AFFECT NO OTHERS. If, from any circumstances
whatsoever, fulfillment of any provision of this Agreement or any related
transaction at the time performance of such provision shall be due, shall
involve transcending the limit of validity presently prescribed by any
applicable usury statute or any other applicable law, with regard to obligations
of like character and amount, then ipso facto, the obligation to be fulfilled
shall be reduced to the limit of such validity. If any clause or provision
operates or would prospectively operate to invalidate this Agreement, in whole
or in part, then such clause or provision only shall be deemed deleted, as
though not contained, and the remainder of this Agreement shall remain operative
and in full force and effect.
4.6 NOTICES. Except as otherwise specifically provided to the contrary,
any and all notices, elections, approvals, consents, demands, requests and
responses ("COMMUNICATIONS") permitted or required to be given under this
Agreement and the Loan Documents shall not be effective unless in writing,
signed by or on behalf of the party giving the same, and sent by certified or
registered mail, postage prepaid, return receipt requested, or by hand delivery
or overnight courier service (such as Federal Express), to the party to be
notified at the address of such party set forth below or at such other address
within the continental United States as such other party may designate by notice
specifically designated as a notice of change of address and given in accordance
with this Section. Any Communications shall be effective upon the earlier of
their receipt or three days after mailing in the manner indicated in this
Section. Receipt of Communications shall occur upon actual delivery but if
attempted delivery is refused or rejected, the date of refusal or rejection
shall be deemed the date of receipt. Any Communication, if given to Lender, must
be addressed as follows, subject to change as provided above:
12
LaSalle Bank National Association,
as trustee
c/o ORIX Capital Markets, LLC
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Re: COMM 2002 FL-7 / Loan No.
903000091
With a copy to: Lennar Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Attn: Director of Servicing
Re: COMM 2002 FL-7 / Loan No.
903000091
and, if given to Original Borrower, must be addressed as follows,
notwithstanding any other address set forth in the Loan Documents to the
contrary, subject to change as provided above:
BRE/Park Place L.L.C.
c/o Blackstone Real Estate
Advisors
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
and, if given to New Borrower, must be addressed as follows, subject to change
as provided above:
Xxxxxxx Properties - Park Place,
LLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx III & Xxxx
X. Lammas, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
13
With a copy to: Xxxxxx, Xxxxxx & Xxxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
4.7 GOVERNING LAW. This Agreement shall be interpreted, construed and
enforced in accordance with the laws of the State of California.
4.8 HEADINGS; EXHIBITS. The headings of the articles, sections and
subsections of this Agreement are for the convenience of reference only, are not
to be considered a part of this Agreement and shall not be used to construe,
limit or otherwise affect this Agreement.
4.9 MODIFICATIONS. The terms of this Agreement may not be changed,
modified, waived, discharged or terminated orally, but only by an instrument or
instruments in writing, signed by the Party against whom the enforcement of the
change, modification, waiver, discharge or termination is asserted.
4.10 TIME OF ESSENCE; CONSENTS. Time is of the essence of this
Agreement and the Loan Documents. Any provisions for consents or approvals in
this Agreement shall mean that such consents or approvals shall not be effective
unless in writing and executed by Lender.
4.11 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
4.12 WAIVER OF TRIAL BY JURY. LENDER, BORROWER PARTIES AND ALL PERSONS
CLAIMING BY, THROUGH OR UNDER IT, HEREBY EXPRESSLY, KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT TO TRAIL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT, THE SECURITY INSTRUMENT, THE
NOTE OR ANY OTHER LOAN DOCUMENT, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR
FUTURE MODIFICATION THEREOF OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO
THIS AGREEMENT, THE SECURITY INSTRUMENT, THE NOTE OR ANY OTHER LOAN DOCUMENT (AS
NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO
OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT
OR OTHERWISE; AND BORROWER HERBY AGREES AND CONSENTS THAT AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION MAY BE FILED WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT HERETO TO THE WAIVER OF ANY RIGHT TO TRIAL BY JURY.
LENDER AND BORROWER PARTIES ACKNOWLEDGE THAT THEY HAVE CONSULTED WITH
14
LEGAL COUNSEL REGARDING THE MEANING OF THIS WAIVER AND ACKNOWLEDGE THAT THIS
WAIVER IS AN ESSENTIAL INDUCEMENT FOR THE MAKING OF THE LOAN. THIS WAIVER SHALL
SURVIVE THE REPAYMENT OF THE LOAN.
4.13 NO THIRD PARTY BENEFICIARIES. The representations, warranties and
covenants of the Original Borrower are solely for the benefit of Lender and
nothing contained herein or the Reaffirmation of Environmental Indemnity, or the
Reaffirmation of Guaranty of Recourse Obligations shall be deemed to confer upon
anyone other than Lender any right to rely upon, insist upon or enforce the
performance of or observance of any of the obligations contained therein.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
15
The parties have executed and delivered this Agreement as of the day
and year first above written.
LENDER:
LASALLE BANK NATIONAL ASSOCIATION,
A NATIONAL BANKING ASSOCIATION, AS
TRUSTEE FOR THE HOLDER OF COMM
2002-FL7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES
By: Lennar Partners, Inc., as
attorney-in-fact
By: /s/ Xxxxxxxx Xxxxxxx
------------------------------
Xxxxxxxx X. Xxxxxxx, Vice
President
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
This instrument was acknowledged before me, a notary public this ___
day of April, 2004, by Xxxxxxxx X. Xxxxxxx, as Vice President of Lennar
Partners, Inc., a Florida corporation, on behalf of said corporation as
attorney-in-fact for LASALLE BANK NATIONAL ASSOCIATION, A NATIONAL BANKING
ASSOCIATION, AS TRUSTEE FOR THE HOLDER OF COMM 2002-FL7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, on behalf of the trust. He ____ is personally known
to me or ____ has produced a driver's license as identification.
__________________________________
Notary Public
My Commission Expires:____________
ORIGINAL BORROWER:
BRE/PARK PLACE L.L.C., a Delaware
limited liability company
By: /s/ Xxxxx Xxxxx
------------------------------
Xxxxx X. Xxxxx, Vice President
STATE OF ________________)
)
COUNTY OF________________)
On April _____, 2004, before me, the undersigned notary public in and
for said County and State, personally appeared Xxxxx X. Xxxxx,
____ personally known to me [or]
____ proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) __________________ subscribed to the within
instrument and acknowledged to me that __________________ executed the same in
____________________ authorized capacity(ies) and that, by _______________
signature(s) on the instrument, the person(s) or the entity(ies) upon behalf of
which the person(s) acted executed the instrument.
WITNESS my hand and official seal.
__________________________________
My commission expires on
__________________________________
NEW BORROWER:
XXXXXXX PROPERTIES - PARK PLACE, LLC, a Delaware
limited liability company
By: MP-Park Place Senior Mezzanine, LLC, a Delaware
limited liability company, its sole member
By: MP-Park Place Junior Mezzanine, LLC, a
Delaware limited liability company, its sole
member
By: Xxxxxxx Properties, L.P., a Maryland
limited partnership, its sole member
By: Xxxxxxx Properties, Inc., a Maryland
corporation, its general partner
By: /s/ Xxxx Lammas
---------------------------------
Name: Xxxx X. Lammas
Title: Secretary
STATE OF _________________)
)
COUNTY OF_________________)
On April _____, 2004, before me, the undersigned notary public in and for said
County and State, personally appeared ______________________________,
as _____________________________,
____ personally known to me [or]
____ proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) __________________ subscribed to the within
instrument and acknowledged to me that __________________ executed the same in
____________________ authorized capacity(ies) and that, by _______________
signature(s) on the instrument, the person(s) or the entity(ies) upon behalf of
which the person(s) acted executed the instrument.
WITNESS my hand and official seal.
__________________________________
My commission expires on
__________________________________
