Note and Deed of Trust Assumption Agreement among LaSalle Bank, BRE/Park Place, L.L.C., and Maguire Properties - Park Place, LLC

Summary

This agreement, dated April 14, 2004, is between LaSalle Bank National Association (as trustee and lender), BRE/Park Place, L.L.C. (original borrower), and Maguire Properties - Park Place, LLC (new borrower). It allows Maguire Properties to purchase the property at 3333, 3337, and 3345-3355 Michelson Drive, Irvine, California, from BRE/Park Place and assume all obligations under a $123 million loan secured by the property. The lender consents to this transfer and assumption, provided all parties meet the agreement's conditions and representations.

EX-10.4 5 a98975exv10w4.txt EXHIBIT 10.4 Exhibit 10.4 Upon recording return to: Suzanne M. Amaducci, P.A. Bilzin Sumberg Baena Price & Axelrod LLP 200 South Biscayne Boulevard, Suite 2500 Miami, Florida 33131-2336 (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 135 South LaSalle Street, Suite 1625, Chicago, Illinois 60603, 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, 345 Park Avenue, 32nd Floor, New York, New York 10154, and MAGUIRE PROPERTIES - PARK PLACE, LLC, a Delaware limited liability company ("NEW BORROWER"), having an address at 333 South Grand Avenue, Suite 400, Los Angeles, California 90071. New Borrower's taxpayer identification number is 20-0877160. 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 Michelson 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. David Z. Hirsh is a Vice President of Original Borrower. David Z. Hirsh, 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 2 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 3 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. Maguire Properties, L.P., a Maryland limited partnership ("MAGUIRE LP") is the sole member of MP Junior. Maguire LP, 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) Maguire LP. Maguire LP 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. Maguire Properties, Inc., a Maryland corporation ("MAGUIRE INC.") is the general partner of Maguire LP. Maguire Inc., acting alone without the joinder of any other partner of Maguire LP or any other party, has the power and authority to execute this Agreement on behalf of and to duly bind Maguire LP 4 under this Agreement and the Loan Documents. The execution and delivery of, and performance under, this Agreement by Maguire LP, 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 Maguire LP or the certificate of limited partnership agreement or the limited partnership of Maguire LP or any other organizational document of Maguire LP, or (ii) result in a breach of or constitute or cause a default under any indenture, agreement, lease or instrument to which Maguire LP is a party or by which the Project may be bound or affected. (v) Maguire Inc. Maguire 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 Maguire 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 Maguire Inc. or the articles of incorporation or bylaws of Maguire Inc. or any other organizational document of Maguire Inc., or (ii) result in a breach of or constitute or cause a default under any indenture, agreement, lease or instrument to which Maguire 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 Maguire LP and Maguire Inc. which have been previously delivered to Lender are true, complete and accurate in every material respect and accurately represent the financial condition of Maguire LP and Maguire Inc. as of the date thereof. There has not been any material adverse change to the financial condition of Maguire LP or Maguire Inc. between the date of the Financial Statements and the date of this Agreement. New Borrower also acknowledges and agrees to cause Maguire LP and Maguire 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. 5 (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, Maguire LP 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 Maguire LP (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 Maguire LP, 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 Maguire LP 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 Maguire LP 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 6 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 8 $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 SUE. 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 9 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 Sumberg Baena Price & Axelrod 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) Maguire LP shall have executed and delivered to Lender a Guaranty; (f) Maguire LP 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 1717 Main Street, 12th Floor Dallas, TX 75201 Re: COMM 2002 FL-7 / Loan No. 903000091 With a copy to: Lennar Partners, Inc. 1601 Washington Avenue, Suite 700 Miami Beach, Florida 33139 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 345 Park Avenue, 32nd Floor New York, New York 10154 Attn: Frank D. Cohen Telephone: 212 ###-###-#### Facsimile: 212 ###-###-#### With a copy to: Simpson Thacher & Bartlett 425 Lexington Avenue New York, New York 10017-3954 Attn: Gregory J. Ressa, Esq. Telephone: 212 ###-###-#### Facsimile: 212 ###-###-#### and, if given to New Borrower, must be addressed as follows, subject to change as provided above: Maguire Properties - Park Place, LLC 333 South Grand Avenue, Suite 400 Los Angeles, California 90071 Attn: Robert F. Maguire III & Mark T. Lammas, Esq. Telephone: 213 ###-###-#### Facsimile: 213 ###-###-#### 13 With a copy to: Munger, Tolles & Olson LLP 355 South Grand Avenue, Suite 3500 Los Angeles, California 90071 Attn: Jeffrey A. Heintz, Esq. Telephone: 213 ###-###-#### Facsimile: 213 ###-###-#### 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/ Randolph Wolpert ------------------------------ Randolph J. Wolpert, 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 Randolph J. Wolpert, 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/ David Hirsh ------------------------------ David Z. Hirsh, Vice President STATE OF ________________) ) COUNTY OF________________) On April _____, 2004, before me, the undersigned notary public in and for said County and State, personally appeared David Z. Hirsh, ____ 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: MAGUIRE 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: Maguire Properties, L.P., a Maryland limited partnership, its sole member By: Maguire Properties, Inc., a Maryland corporation, its general partner By: /s/ Mark Lammas --------------------------------- Name: Mark T. 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 __________________________________