Exhibit 10.11
ASSUMPTION AND MODIFICATION AGREEMENT
JUNIOR MEZZANINE LOAN
THIS ASSUMPTION AND MODIFICATION AGREEMENT - JUNIOR MEZZANINE LOAN
("AGREEMENT") is dated as of April 14, 2004 ("EFFECTIVE DATE"), among SFT I,
INC., a Delaware corporation ("Lender"), having an address at 1114 Avenue of the
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, BRE/PARK PLACE JUNIOR MEZZANINE,
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 MP - PARK PLACE JUNIOR MEZZANINE, 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. BRE/Park Place Mezzanine L.L.C. ("ORIGINAL SENIOR MEZZANINE
BORROWER"), is the sole member of BRE/Park Place L.L.C., a Delaware limited
liability company ("ORIGINAL PROPERTY OWNER"), which 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 (the Land and the Improvements are
hereinafter sometimes collectively referred to as the "PROJECT").
B. Original Borrower is the sole member of Original Senior
Mezzanine Borrower.
C. Lender is the current owner and holder of a loan ("LOAN") in
the original principal amount of $14,500,000.00 made pursuant to that certain
Junior Tier Mezzanine Loan and Security Agreement, dated as of September 30,
2002, between German American Capital Corporation ("ORIGINAL LENDER") and
Original Borrower (as amended from time to time, the "LOAN AGREEMENT"), which is
evidenced by an Amended and Restated Mezzanine Note, dated as of September 30,
2002, in the principal amount of $14,500,000.00, executed by Original Borrower
in favor of Original Lender (the "NOTE"), and secured by, among other things,
that certain Pledge and Security Agreement, dated as of September 30, 2002, made
by Original Borrower in favor of Original Lender, (as amended from time to time,
the "ORIGINAL SECURITY INSTRUMENT" and, collectively with the Loan Agreement,
the Note, and any and all other documents evidencing, securing or in any manner
relating to the Loan, as more particularly described in Exhibit A attached
hereto, the "LOAN DOCUMENTS").
D. The Loan and the Loan Documents were assigned by Original
Lender to iStar DB Seller, LLC ("DB SELLER") by an Omnibus Assignment of
Mezzanine Loan and Loan Documents from Original Lender to DB Seller and from DB
Seller to Lender pursuant to an Assignment of Note and Other Loan Documents
dated as of December 12, 2003 from Original Lender to Lender.
E. MP - Park Place Senior Mezzanine, LLC, a Delaware limited
liability company ("NEW SENIOR MEZZANINE BORROWER") is the sole member of
Xxxxxxx Properties - Park Place, LLC, a Delaware limited liability company ("NEW
PROPERTY OWNER"), which desires to purchase the Property from the Original
Property Owner.
F. New Borrower is the sole member of New Senior Mezzanine
Borrower.
G. In connection with such purchase of the Project by New
Property Owner, (i) Original Property Owner desires to assign and New Property
Owner desires to assume all of the obligations of Original Property Owner under
the Loan Documents (Mortgage), (ii) Original Senior Mezzanine Borrower desires
to assign and New Senior Mezzanine Borrower desires to assume all of the
obligations of Original Senior Mezzanine Borrower under the Loan Documents
(Senior Mezzanine), and (iii) Original Borrower desires to assign and New
Borrower desires to assume all of the obligations of Original Borrower under the
Loan Documents.
H. A sale of Original Borrower's direct or indirect interests in
the Project to, and the assumption of the Loan by, a third party, without the
prior consent of Lender is prohibited by the terms of the Original Security
Instrument and the terms of the Loan Agreement.
I. Subject to the terms and conditions of this Agreement, the
Lender has agreed to consent to the following requested actions (the "REQUESTED
ACTIONS"): (i) Original Property Owner selling its interest in the Project to
New Property Owner, (ii) New Property Owner assuming all of Original Property
Owner's obligations under the Loan Documents (Mortgage), (iii) New Senior
Mezzanine Borrower assuming all of Original Senior Mezzanine Borrower's
obligations under the Loan Documents, (iv) New Borrower assuming all of Original
Borrower's obligations under the Loan Documents (v) Lender recognizing New
Borrower as the "Borrower" under the Loan and Loan Documents, and (vi) New
Borrower pledging its one hundred percent (100%) membership interest in New
Senior Mezzanine Borrower (the "New Senior Mezzanine Borrower Interests") as
additional collateral for the Loan.
J. 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 I
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
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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 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
Property Owner, Original Senior Mezzanine Borrower or Original Borrower is a
party or by which the Project or the Collateral (as defined in the Loan
Agreement) may be bound or affected that would materially impair the Project,
the Collateral 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. Neither Original
Borrower nor Original Property Owner has received any written notice from any
governmental entity claiming that Original Property Owner 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. Neither Original Borrower
nor Original Property Owner has 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; Neither Original Borrower nor Original Property Owner
has 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. Each of Original Borrower and Original Property Owner
is unaware of any uncured default under any of the REAs by any party thereto and
all sums payable by Original Property Owner under the REAs have been paid in
full.
(f) Title to Project and Collateral and Legal
Proceedings. Original Property Owner is the current fee simple owner of the
Project free and clear of all liens, restrictions, claims, pledges,
encumbrances, changes or rights of third parties, other than those permitted
under the Loan Agreement. Original Borrower is the current owner of 100% of the
membership
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interests in the Original Senior Mezzanine Borrower (the "Original Senior
Mezzanine Borrower Interests"), free and clear of all liens, restrictions,
claims, pledges, encumbrances, charges or rights of third parties, other than
those in favor of Lender. 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, Original Property Owner, the Collateral
or the Project that if decided adversely to Original Borrower or Original
Property Owner would have a material adverse affect on Original Borrower,
Original Property Owner, the Collateral 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 the
Collateral, 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, if required by California law, is duly
authorized to transact business in the State of California. Xxxxxxx Properties,
L.P., a Maryland limited partnership ("XXXXXXX XX"), the sole member of New
Borrower. 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 and the Loan Documents on behalf of and to duly bind New
Borrower under this Agreement and the Loan Documents. The execution and delivery
of, and performance under, this Agreement and the Loan Documents 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 or the Collateral may be bound or affected.
(ii) 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 under this Agreement and the Loan Documents. The execution
and delivery of, and performance under, this Agreement and the Loan Documents by
Xxxxxxx XX, as the sole member of the New Borrower, 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
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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 or
the Collateral may be bound or affected.
(iii) 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 and the Loan Documents by Xxxxxxx Inc., as the
sole general partner of Xxxxxxx XX, 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 or the
Collateral may be bound or affected.
(b) Financial Statements. The financial statements and other
information ("FINANCIAL STATEMENTS") of New Property Owner, New Senior Mezzanine
Borrower, New Borrower, 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 New Property Owner, New
Senior Mezzanine Borrower, New Borrower, 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 New Senior Mezzanine Borrower, Xxxxxxx XX and Xxxxxxx Inc. to
timely comply with all financial requirements set forth in the Loan Documents.
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, New
Property Owner, New Senior Mezzanine Borrower, Xxxxxxx XX nor Xxxxxxx Inc., has
materially defaulted under its or their respective obligations with respect to
any material indebtedness, and, with respect to immaterial defaults by New
Borrower, New Property Owner, New Senior Mezzanine Borrower or Xxxxxxx XX 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, New Property
Owner, New Senior Mezzanine Borrower, Xxxxxxx XX, the Collateral or the Project.
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(f) Ownership following Transfers. New Borrower is and shall
remain the owner of the New Senior Mezzanine Borrower Interests, free and clear
of all liens, restrictions, claims, pledges, encumbrances, charges or rights of
third parties, other than those in favor of Lender under the Loan Documents.
Contemporaneously with the effectiveness of this Agreement, the New Senior
Mezzanine Borrower Interests shall constitute and be deemed to be the "Pledged
Collateral" under the Loan Agreement and the other Loan Documents, the Security
Instrument shall be deemed to be the "Pledge" under the Loan Agreement and the
other Loan Documents and the member power executed by Xxxxxxx XX on or about the
date hereof with respect to the New Senior Mezzanine Borrower Interests (the
"New Member Power") shall be deemed to be the "Member Power" under the Loan
Agreement and the other Loan Documents, and all references in the Loan Agreement
to the terms "Pledged Collateral", "Pledge" and "Member Power" shall hereinafter
mean the New Property Owner Interests, the Security Instrument and the New
Member Power, respectively.
(g) Certificates. The New Borrower represents, warrants, covenants
and agrees that the New Senior Mezzanine Borrower Interests are not represented
or otherwise evidenced by any certificate or other instrument other than the
certificates previously delivered to Lender, and in the event that the New
Senior Mezzanine Borrower Interests become evidenced by certificates or
instruments other than the certificates previously delivered to Lender, the New
Borrower shall immediately deliver to Lender such certificates or instruments
together with assignments appropriate to transfer such certificates or
instruments, duly executed in blank.
(h) New Borrower's Organizational Documents. Each of New Property
Owner, New Senior Mezzanine Borrower and New Borrower is a Single Purpose Entity
as such term is defined in the Loan Agreement. Neither New Property Owner nor
New Borrower is in violation and will not violate of any of the terms,
covenants, conditions or other provisions of its respective organizational
documents or the Single Purpose Entity requirements set forth in the Loan
Agreement.
(i) Assets of New Borrower. The only assets of New Borrower are
the membership interests in New Senior Mezzanine Borrower together with any and
all rights associated therewith and Cash or Cash Equivalents.
(j) 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 Property Owner 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.
(k) Bona Fide Sale. The Requested Actions represent a bona fide
sale, transfer or conveyance for cash or equivalent consideration.
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(l) New Borrower Parties' Interests. Except for the assumption of
the Loan (Mortgage), the Loan (Senior Tier Mezzanine) and the Loan, as such
terms are defined in the Loan Agreement, none of New Borrower, New Property
Owner, New Senior Mezzanine Borrower nor Xxxxxxx XX are obtaining a loan to
finance its interest in New Borrower, New Senior Mezzanine Borrower, New
Property Owner or the Project, respectively or pledging its interest in New
Borrower, New Property Owner or New Senior Mezzanine Borrower, respectively, 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 the 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 April 12, 2004, the outstanding
principal balance of the Loan was $14,500,000, outstanding late charges total $0
and outstanding default interest totals $0. 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 reserve balances held by
Lender; (ii) all interest and principal payments due under the Loan Documents
through and including April 14, 2004 have been paid, (iii) Lender has not issued
any written notices of default to Original Borrower which have not been cured,
(iv) all fees and costs due under the Loan Documents have been paid, and (v)
there are no existing material defaults under the Loan Documents. As of March
25, 2004, the outstanding principal balance of the Loan (Mortgage) was
$123,000,000, outstanding late charges total $0.00 and outstanding default
interest rate totals $0.00. As of April 14, 2004, the outstanding principal
balance of the Loan (Senior Tier Mezzanine) was $26,500,000, outstanding late
charges total $0.00 and outstanding default interest rate totals $0.00.
(b) Loan Documents. Original Borrower represents that the
Loan Documents constitute valid and legally binding obligations of Original
Borrower enforceable against Original Borrower 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
enforceable against New Borrower in accordance with their terms. 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, or any subsidiary or affiliate of Lender or any of the past, present
and future officers, directors, contractors, employees, agents, servicers,
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), (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 or (vii) the Collateral. 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 and that it has read and approved each and every Loan
Document.
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(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 Collateral, the Project or any portion or
any interest of any of Borrower Parties in the Collateral or 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, 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) Transfer of Project. Contemporaneously with the
execution and delivery of this Agreement, Original Property Owner has assigned,
conveyed and transferred to New Property Owner all of Original Property Owner's
right, title and interest in and to the Project.
(f) 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 Collateral, 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 the Rent Roll referenced in the Loan
Agreement shall mean and refer to the Rent Roll attached hereto. New Borrower,
to the best of its actual knowledge, restates, 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 or the Loan Documents, 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 first occurring or obligations
first arising under the Loan Documents from and after the date hereof (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).
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ARTICLE II
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 the other Loan Documents 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. The New Borrower
acknowledges and agrees that from and after the effectiveness of this Agreement
that the Loan Documents shall be modified and amended as follows: (i) New
Borrower shall be the "Borrower", "Mezzanine Borrower", "Junior Tier Mezzanine
Borrower", "Pledgor", "Debtor", "Indemnitor", "Party B", "Grantor", "Debtor",
and "Assignor", as applicable, under any Loan Documents in which Original
Borrower was the "Borrower", "Mezzanine Borrower", "Junior Tier Mezzanine
Borrower", "Pledgor", "Debtor", "Indemnitor", "Party B", "Grantor", "Debtor" or
"Assignor", as applicable, and all provisions of the Loan Documents previously
applicable to Original Borrower shall apply to New Borrower (other than with
respect to the existing Environmental Indemnity (Mezzanine) and the
Reaffirmation of the Environmental Indemnity (Mezzanine)), (ii) Xxxxxxx XX shall
be the "Guarantor" under any Loan Document in which Original Indemnitor (as
hereinafter defined) was the "Guarantor" and all provisions of the Loan
Documents previously applicable to Original Indemnitor shall apply to Xxxxxxx XX
(other than with respect to the existing Recourse Guaranty (Mezzanine), the
Reaffirmation of the Recourse Guaranty (Mezzanine) and the Reaffirmation of
Recourse Guaranty (Mortgage)), (iii) New Property Owner shall be the "Mortgage
Borrower" under any Loan Document in which Original Property Owner was the
"Mortgage Borrower" and all provisions of the Loan Documents previously
applicable to Original Property Owner shall apply to New Property Owner (other
than with respect to the existing Environmental Indemnity (Mortgage) and the
Reaffirmation of the Environmental Indemnity (Mortgage)), (iv) New Senior
Mezzanine Borrower shall be the "Senior Tier Mezzanine Borrower" under any Loan
Document in which Original Senior Tier Mezzanine Borrower was the "Senior Tier
Mezzanine Borrower" and all provisions of the Loan Documents previously
applicable to Original Senior Tier Mezzanine Borrower shall apply to New Senior
Mezzanine Borrower, (v) the "Mezzanine Borrower LLC Agreement" shall mean that
certain Limited Liability Company Agreement of MP - Park Place Junior Mezzanine,
LLC dated as of April 14, 2004, as such may be amended, restated, replaced,
supplemented or otherwise modified from time to time to the extent permitted
pursuant to the Loan Agreement, (vi) the "Environmental Indemnity (Mezzanine)"
shall be deemed to also include the New Environmental Indemnity (Mezzanine) and
the Reaffirmation of Environmental Indemnity (Mezzanine), as the same may be
amended, supplemented, restated or otherwise modified from time to time, (vii)
the "Environmental Indemnity (Mortgage)" shall be deemed to also include that
certain Environmental Indemnity dated as of even date herewith executed by New
Property Owner in favor of Mortgage Lender and that certain Reaffirmation of
Environmental Indemnity Agreement dated as of even date herewith executed by
Original Property Owner in favor of Mortgage Lender (the "Reaffirmation of
Environmental Indemnity (Mortgage)"), as the same may be amended, supplemented,
restated or otherwise modified from time to time, (viii) the
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"Recourse Guaranty (Mezzanine)" shall be deemed to also include the New Recourse
Guaranty ("Mezzanine") and the Reaffirmation of Recourse Guaranty ("Mezzanine"),
as the same may be amended, supplemented, restated or otherwise modified from
time to time, (ix) the "Recourse Guaranty (Mortgage)" shall be deemed to also
include that certain Guaranty of Recourse Obligations dated as of even date
herewith executed by Xxxxxxx XX in favor of Mortgage Lender and that certain
Reaffirmation of Guaranty of Recourse Obligations dated as of even date herewith
executed by Original Indemnitor in favor of Mortgage Lender (the "Reaffirmation
of Recourse Guaranty (Mortgage)"), as the same may be amended, supplemented,
restated or otherwise modified from time to time, and (x) Exhibit "J" to the
Loan Agreement is hereby amended by deleting such Exhibit "J" in its entirety
and inserting in lieu thereof Exhibit "J" attached to this Agreement.
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 $72,500, which is
0.5% of the outstanding principal balance of the Loan; (ii) an administration
fee equal to $125.00; and (iii) 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, (e) the Project or its
development, financing and operation and (f) the Collateral. 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, (iv) the Project or its
development, financing and operation which Borrower Parties now have, or in the
future may have, and (v) the Collateral, 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:
10
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 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 (other than the liens
and security interest encumbering the Original Senior Mezzanine Borrower
Interests), which New Borrower acknowledges to be valid and existing liens and
security interests in the Collateral. New Borrower agrees that the lien and
security interests created by the Loan Documents (other than with respect to the
Original Senior Mezzanine Borrower Interests) 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, Xxxxxx Xxxxxx Xxxxx Xxxxxxxx, in connection with the
preparation of this Agreement and the transactions contemplated in this
Agreement; (b) the costs of obtaining a Lender's "Eagle 9" insurance policy
insuring the collateral pledged to Lender pursuant to the Security Instrument as
affected by this Agreement and (c) all other costs and expenses incident to the
preparation, execution and recordation of this Agreement and the New Documents
and the consummation of the transaction contemplated hereby.
ARTICLE III
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 direct or indirect interest in
the Project or assumption of the Loan, the Loan (Mortgage) or the Senior Tier
Mezzanine Loan, or a consent to any secondary financing or secondary encumbrance
11
on the Project, the Collateral or any interests in New Senior Mezzanine Borrower
except the existing Senior Tier Mezzanine Loan.
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.
3.3. ADDITIONAL DOCUMENTS. Contemporaneously with the execution and
delivery of this Agreement and as a condition to the effectiveness 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 filing with the
Delaware Secretary to add New Borrower as an additional debtor and to add the
New Senior Mezzanine Borrower Interests as additional Collateral; (b) New
Borrower shall have executed and delivered a Pledge and Security Agreement
pursuant to which New Borrower grants Lender a security interest in the New
Senior Mezzanine Borrower Interests (the "SECURITY INSTRUMENT"), (c) Blackstone
Real Estate Partners III, LP, Blackstone Real Estate Partners III T.E.1 LP,
Blackstone Real Estate Partners III T.E.2 LP, Blackstone Real Estate Partners
III T.E.3, 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 (the "REAFFIRMATION OF
RECOURSE GUARANTY (MEZZANINE)"), (d) Original Borrower shall have executed and
delivered to Lender a Reaffirmation of Environmental Indemnity (the
"REAFFIRMATION OF ENVIRONMENTAL INDEMNITY"), (e) New Borrower shall have
executed and delivered to Lender an Environmental Indemnity (the "New
Environmental Indemnity (MEZZANINE)"); (f) Xxxxxxx XX shall have executed and
delivered to Lender a Guaranty of Recourse Obligations (the "NEW RECOURSE
GUARANTY (MEZZANINE)"); (g) Xxxxxxx XX shall have executed and delivered to
Lender a Manager's Consent; and (g) Lender and New Borrower shall have entered
into a First Amendment to Account and Control Agreement; all in form and content
reasonably acceptable to Lender (the documents, instruments and agreements
described in (a) - (h) above, together with any other documents, instruments or
agreements executed in connection with the foregoing are hereinafter referred to
as the "NEW DOCUMENTS").
3.4. REFERENCES TO LOAN DOCUMENTS. All references to the term "LOAN
DOCUMENTS" in the Loan Agreement and the other Loan Documents shall hereinafter
mean and refer to: (i) all of the Loan Documents described therein and in this
Agreement, including, without limitation, in Section 3.3 hereof; (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, including
without limitation, the New Documents.
12
ARTICLE IV
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 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
provided, however, the provisions of this Section 4.3 shall not be deemed or
construed to (a) permit, sanction, authorize or condone the assignment of all or
any part of the Project or the Collateral or any of New Property Owner's or New
Borrower's rights, title or interests in and to the Project or the Collateral,
except as expressly authorized in the Loan Documents; or (b) confer any right,
title, benefit, cause of action or remedy upon any person or entity not a party
hereto, which such party would not or did not otherwise possess.
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
13
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:
SFT I, Inc.
c/o iStar Financial Inc.
1114 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: CEO and General Counsel
Re: Park Place - Junior Mezzanine
With a copy to: iStar Asset Services
000 Xxxxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
Attn: President
Re: Park Place - Junior Mezzanine
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:
00
XXX/Xxxx Xxxxx Junior Mezzanine 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:
MP - Park Place Junior Mezzanine, 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: 213-687-4758
With a copy to: Xxxxxx, Xxxxxx & Xxxxx LIP
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 New York.
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.
15
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 PARTIES HERBY AGREE AND CONSENT 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
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]
16
The parties have executed and delivered this Agreement as of the day
and year first above written.
LENDER:
SFT I, INC., a Delaware corporation
By: /S/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
ORIGINAL BORROWER:
BRE/PARK PLACE JUNIOR MEZZANINE
L.L.C., a Delaware limited liability company
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
NEW BORROWER:
MP - PARK PLACE JUNIOR MEZZANINE,
LLC, a Delaware limited liability company
By: /s/ Xxxx Lammas
-------------------------------
Name: Xxxx X. Lammas
Title: Secretary
