HomeMy WebLinkAboutCC Resolution 12888 (Northgate Development Agr.)RESOLUTION NO. 12888
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
AUTHORIZING THE CITY MANAGER TO EXECUTE A CONSENT TO
COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT FROM
NORTHGATE MALL ASSOCIATES TO U.S. BANK
THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows:
WHEREAS, on June 4, 2008, the City entered into a Development Agreement with
Northgate Mall Associates, a General Partnership, establishing certain rights and obligations of
both parties in connection with Northgate Mall Associates' proposed renovation of the Northgate
Mall; and
WHEREAS, U.S. Bank has agreed to provide financing to Northgate Mall Associates in
connection with the Northgate Mall renovation project; and
WHEREAS, a condition of U.S. Bank's financing agreement is that Northgate Mall
Associates, as borrower, shall execute a "Collateral Assignment of Development Agreement"
which will convey to U.S. Bank the borrower's rights under the Development Agreement in the
event of borrower's default on its obligations under the loan agreement; and
WHEREAS, as an additional condition of the financing agreement, U.S. Bank is
requiring that the City consent to the required Collateral Assignment of Development Agreement;
and
WHEREAS, the requested consent to the collateral assignment is consistent with Section
10 of the Development Agreement which allows a mortgagee of developer Northgate Mall
Associates to succeed to the developer's rights and obligations in the Development Agreement if
the mortgagee obtains the developer's interest in the Northgate property by way of foreclosure or
similar remedy for default.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of San
Rafael does hereby consent to the proposed Collateral Assignment of Development Agreement
from Northgate Mall Associates to U.S. Bank, and authorizes the City Manager to execute the
necessary consent form as approved by the City Attorney.
I, ESTHER BEIRNE, Clerk of the City of San Rafael, hereby certify that the foregoing
Resolution was duly and regularly introduced and adopted at a regular meeting of the City
Council of said City held on Monday, the 16"' day of November 2009 by the following vote, to
wit:
AYES: COUNCILMEMBERS: Brockbank, Connolly, Miller & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Heller
1z tK74 )9e4& -<-C
ESTHER BEIRNE, City Clerk
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Sheppard, Mullin, Richter & Hampton LLP
650 Town Center Drive, 4th Floor
Costa Mesa, California 92626-1993
Attn: Kelly E. Simpson, Esq.
_...._
... _....... ._.... __._.._........ ..._._....m. _...... _ ..........._................... _... ____...... ...
__......._ _ ._ _ _.. _ .. _.........
THIS SPACE ABOVE FOR RECORDER'S USE
COLLATERAL ASSIGNMENT OF
DEVELOPMENT AGREEMENT
THIS COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT (this
"Assienment") is made as of 12009, by NORTHGATE MALL ASSOCIATES, a
California general partnership ("Borrower"), in favor of U.S. BANK NATIONAL
ASSOCIATION, a national banking association ("Agent"), as agent for itself and the other
"Lenders" now or hereafter a party to the Loan Agreement (collectively, "Lenders").
RECITALS
A. Borrower owns that certain real property located in the City of San Rafael, Marin
County, California more particularly described in Exhibit A attached hereto and made a part
hereof (the "Proverty").
B. The Property is subject to that certain Development Agreement dated as of June 4,
2008 (the "Development Agreement") between Borrower, as the "Developer", and the City of
San Rafael, a municipal corporation (the "City"), which was recorded on June 9, 2008 as
Instrument No. 2008-0026807 in the Official Records of Marin County, California ("Official
Records").
C. The Lenders have agreed to make a loan to Borrower in the principal amount of
$60,000,000.00 (subject to an increase to $80,000,000 in accordance with the terms and
conditions of the Loan Agreement) (the "Loan") pursuant to the terms of that certain
Construction Loan Agreement of even date herewith, by and between Borrower, Agent and the
Lenders a party thereto from time to time (the "Loan Aereement") and the other "Loan
Documents" (which term as used herein shall have the same meaning that is given to such tern
in the Loan Agreement). The Loan is evidenced by one or more Promissory Notes of even date
herewith, executed by Borrower to the order of a Lender, in the aggregate original principal
amount of the Loan (collectively, the "Note"). The Loan shall be secured by, among other
things, that certain Construction Deed of Trust (with Assignment of Leases and Rents, Security
Agreement and Fixture Filing) (the "Deed of Trust") of even date herewith, executed by
Borrower, Broad Rafael Associates, a Pennsylvania limited partnership and Macerich Northgate
Holdings LLC, a Delaware limited liability company, as trustor, in favor of Agent, as
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beneficiary, and encumbering Borrower's interest in the Property, which Deed of Trust shall be
recorded substantially concurrently with the recordation of this Assigmnent.
NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties
hereto and other valuable consideration, the receipt and sufficiency of which consideration is
hereby acknowledged, and in order to induce Lenders to make the Loan to Borrower, Borrower
hereby agrees in favor of Agent and the Lenders as follows:
1. Definitions. For purposes of this Assigmnent, the following terns have the
meanings set forth below, unless the context otherwise requires:
1.1 "Borrower's Rights" shall mean all of Borrower's rights, interests, claims,
privileges and entitlements of any type or nature whatsoever under the Development Agreement,
including without limitation (i) all density allocations and all rights to develop the Property
including the rights to develop the Initial Phase and the Build Back Space each as defined in the
Development Agreement, (ii) all fee credits, fights to pay reduced fees, rights to have fees paid
by the City, or any other rights or concessions with respect to fees (if any), and (iii) all rights (if
any) to receive reimbursements or purchase price for the cost of infrastructure or other
improvements, or any other payments of any type or nature, from the proceeds of community
facilities districts, developer fees or any other source (collectively, "Payments").
1.2 "Foreclosure" shall mean and include a foreclosure of the Deed of Trust
by judicial action, or a sale of the Property pursuant to the power of sale contained in the Deed of
Trust or any acquisition of the Property pursuant to a deed in lieu of foreclosure.
1.3 "Purchaser" shall mean any party, including without limitation Agent,
any Lender or any affiliate of Agent or Lender, who shall purchase or acquire the Property as the
result of a Foreclosure.
2. Pavments. At any time that a Default (as defined in Section 7.1 below) exists and
is continuing, (a) all Payments owing to Borrower under the Development Agreement (if any)
shall be made directly to Agent, or at the written direction of Agent to be applied in accordance
with the provisions of the Loan Agreement, and (b) no Payments shall be made directly to
Borrower unless Agent so directs in writing. Borrower hereby irrevocably authorizes and directs
the City, during a Default, upon written notice from Agent, to pay all Payments (if any) directly
to Agent or at Agent's written direction, and releases City of and from any claim or liability
arising in any manner from City's compliance with the foregoing.
3. Collateral Assigmnent. In order to induce Lenders to make the Loan, Borrower
hereby collaterally assigns to Agent, and grants to Agent a lien and security interest in and to, all
of the Borrower's Rights, for the purpose of securing (i) the payment of all indebtedness and the
performance of all obligations under the Note, Loan Agreement and all other Loan Documents,
as the same may be amended, extended, renewed or modified from time to time, and (ii) all
future obligations of Borrower to Agent which are evidenced by written document(s) which
recite that they are an obligation of Borrower secured by this Assignment.
4. Exercise of Borrower's Rights. So long as no Default (as defined in Section 7.1
below) has occurred and is continuing, Borrower shall be entitled to exercise all of the
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Borrower's Rights, subject to the provisions in this Assignment and in the Loan Documents.
Upon the occurrence and during the continuance of a Default, Borrower shall have no right to
exercise any of the Borrower's Rights, and Agent shall have the absolute right to do so.
Covenants. Borrower covenants and agrees for the benefit of Agent as follows:
5.1 At Borrower's sole cost to: (i) perform all material covenants,
representations, terms, undertakings, obligations, warranties, and agreements of Borrower under
the Development Agreement so as to protect Borrower's Rights and otherwise prevent a default
by Borrower thereunder; (ii) enforce, or secure the perfonnance by the other parties (i.e., other
than Borrower) to the Development Agreement of the material covenants, representations,
warranties, terns, obligations and agreements contained in the Development Agreement;
(iii) except as prohibited by any other provision hereof, enforce and secure all remedies available
to Borrower under the Development Agreement; (iv) prosecute and defend any legal action,
arbitration or other controversy relating to the Development Agreement or to Borrower's interest
under the Development Agreement; (v) give prompt notice to Agent and deliver to Agent
complete copies of any notice of default with respect to the Development Agreement, whether
the default be of the City, Borrower or any other party to the Development Agreement; and
(vi) execute and record such additional assignments of the Borrower's Rights, in form and
substance reasonably acceptable to Agent, as Agent may reasonably request.
5.2 Except with Agent's prior written consent, not to: (i) execute any other
transfer, assignment, or further encumbrance of the Borrower's Rights; (ii) reallocate the
Borrower's Rights (including without limitation all density allocations and fee credits allocated
to the Property (if any) under the Development Agreement) to any other project or property other
than the Property; (iii) create, suffer or permit any release, abatement or reduction of the material
obligations and duties of the City or any other party to the Development Agreement or any
material right of Borrower under the Development Agreement with respect to the Property, or
excuse any material delay or failure of performance of any of the obligations, terns, covenants,
agreements, undertakings, representations, or warranties of the City or any other party to the
Development Agreement; or (iv) tenninate, modify or amend the Development Agreement or in
any manner release or discharge the City or any other party to the Development Agreement from
any material obligations, covenants, conditions, terns, undertakings, representations, warranties
or agreements to be performed by such party under the Development Agreement. Any such
attempted action without Agent's prior written consent shall be mill and void.
6. Representations and Warranties. Borrower represents and warrants for the benefit
of Agent as of the date hereof that:
6.1 The Development Agreement is in full force and effect and is enforceable
in accordance with its terms (except to the extent enforceability may be affected or limited by
applicable bankruptcy, insolvency or other similar debtor relief laws and by general principles of
equity), and to Borrower's actual knowledge and belief, no breach or default, or event which
would constitute such a breach or default after notice or the passage of time, or both, of any of
the terms, covenants, obligations, undertakings, representations, warranties, agreements or
conditions exist with respect to the Development Agreement; and
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6.2 Borrower's Rights have not been encumbered, transferred or assigned to
any person or entity.
Default and Remedies.
7.1 Default. "Default" shall mean (i) the existence of any "Event of Default"
as defined in the Loan Agreement, or (ii) a breach of any covenant, agreement, term, condition,
obligation, representation, warranty or undertaking of Borrower contained in this Assigmnent
which breach is not cured within twenty (20) days after written notice to Borrower from Agent;
provided that, if cure cannot reasonably be effected within such 20 -day period, such failure shall
not be a Default hereunder so long as Borrower promptly (in any event, within ten (10) days after
receipt of such notice) commences cure, and thereafter diligently (in any event, within sixty (60)
days after receipt of such notice) prosecutes such cure to completion, or (iii) a breach of any
covenant, agreement, teen, condition, obligation, representation, warranty or undertaking of
Borrower under the Development Agreement which breach is not cured within ten (10) days
after written notice to Borrower from the City (or such longer period of time that may be
afforded the Borrower under the Development Agreement). Notwithstanding the above, any
cure period stated above may be shortened or eliminated by Agent if Agent in good faith deems
it necessary to exercise any remedy under Section 7.2 below before the expiration of the cure
period stated above in order to prevent a termination or loss of rights under the Development
Agreement.
7.2 Remedies. In addition to any and all remedies contained in the Loan
Documents, in the event of a Default, Agent shall have the rights and remedies set forth below
and may exercise such rights and remedies at Borrower's sole cost and expense prior to,
simultaneously with or subsequent to the exercise of any rights and remedies under any of the
other Loan Documents either in person or by its agent, with or without bringing any action or
proceeding or having a receiver appointed by a court, without regard to the adequacy of the
security for the obligations secured by this Assignment and the Loan Documents and without
releasing Borrower from any obligations under this Assignment and the Loan Documents:
(a) tenninate, amend or modify the Development Agreement to the
extent Borrower has such right under the Development Agreement; and
(b) sue for enforcement of the Development Agreement and to settle
and compromise the same; and
(c) perforin all acts required of Borrower under the Development
Agreement; and
(d) act in Borrower's place and stead under the Development
Agreement in all respects, including but not limited to, the making of all elections on
behalf of Borrower, the giving of notices on behalf of Borrower, the snaking of
applications for fee credits or Payments and the conveyance of improvements to be
purchased by the City (if any). Borrower hereby irrevocably appoints Agent as
Borrower's true and lawful attorney in fact to do all acts and execute any and all
documents necessary or convenient to accomplish the foregoing.
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7.3 Notice. Until Agent notifies City that the Loan is paid in fiill (which
Agent shall do promptly upon request following such payment in full), City and all other parties
to the Development Agreement are hereby irrevocably authorized and notified to rely upon and
comply with (and shall be fitlly protected in so doing) any notice or demand by Agent for the
performance of any of City's or such other party's undertakings under the Development
Agreement, and City and all other parties to the Development Agreement shall have no duty to
inquire as to whether any Default has actually occurred or is then existing.
8. Exculpation and Indemnification. This Assignment shall not cause Agent or any
Lender to be responsible or liable for performing any of the tenors, agreements, undertakings,
obligations, representations, warranties, covenants or conditions of the Development Agreement.
Neither Agent nor any Lender shall directly or indirectly be liable to Borrower or any other
person as a consequence of. (a) the exercise of the rights, remedies or powers granted to Agent in
this Assignment; (b) the failure or refusal of Agent to perform or discharge any obligation, duty
or liability of Borrower under the Development Agreement or by reason of this Assignment; or
(c) any loss sustained by Borrower or any third party resulting from any act or omission of Agent
in managing the Property or the Development Agreement after a Default; and no such liability
shall be asserted or enforced against Agent or any Lender, all such liability being expressly
waived and released by Borrower. Borrower hereby indemnifies and holds Agent and any
Lender harmless from and against any and all such liability, loss, damage, cost or expense
(including reasonable attorneys' fees) which Agent might incur or suffer under the Development
Agreement or by reason of this Assignment, and of and from any and all claims and demands
whatsoever, which may be asserted against Agent by reason of any alleged undertakings,
obligations, representations, warranties, conditions, covenants or agreements contained in the
Development Agreement, except to the extent caused by the gross negligence or willfiul
misconduct of Agent. Should Agent or any Lender incur or suffer any liability, loss, damage,
cost or expense (including attorneys' fees) under the Development Agreement or by reason of
this Assignment, or in the defense of any such claims or demands, the amount of such liability,
loss, damage, cost, expense and reasonable attorneys' fees shall be secured by this Assignment
and the Deed of Trust, and Borrower shall pay the same to Agent upon demand by Agent.
Miscellaneous.
9.1 Recordation. This Assignment shall be recorded in the Official Records of
Marin County, California and shall serve as notice to all parties of the rights of Agent as set forth
herein.
9.2 Notice. Any notices required to be sent under this Assignment shall be
sent or delivered in accordance with the requirements of Section 7.5 of the Loan Agreement to
the following addresses:
If to Agent: U.S. Bank National Association
Commercial Real Estate — Los Angeles
633 West 5`I' Street, 29th Floor
Los Angeles, California 90071
Attn: Adrian Metter
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If to Borrower: Northgate Mall Associates
c/o The Macerich Company
401 Wilshire Blvd., Suite 700
Santa Monica, California 90401
Attention: Scott Kingsmore
With a copy to: The Macerich Company
401 Wilshire Blvd., Suite 700
Santa Monica, California 90401
Attention: Chief Legal Officer and Chief
Financial Officer
With a copy to: DLA Piper US LLP
550 South Hope Street, Suite 2300
Los Angeles, California 90071
Attention: Michael Hamilton
9.3 Heirs. Successors and Assigns. Subject to auy restrictions in the Loan
Documents on assignments by Borrower, the terms of this Assignment shall be binding upon and
inure to the benefit of the heirs, successors and assigns of the parties hereto, including without
limitation any Purchaser.
9.4 Further Assurances. The parties hereto shall, upon the request of any
party, execute, acluiowledge and deliver such fiurther instrument and perform such other acts as
may be reasonably necessary or proper to carry out the purposes of this Assignment.
9.5 Attornevs' Fees. If any action or proceeding is brought by any party to
enforce or construe a provision of this Assignment, the unsuccessful party or parties in such
action or proceeding, whether or not such action or proceeding is settled or prosecuted to final
judgment, shall pay all reasonable attorneys' fees and costs incurred by the prevailing party.
9.6 Time. Time is of the essence of each tern of this Assigmnent.
9.7 Headings. All headings appearing in this Assignment are for convenience
only and shall be disregarded in construing this Assignment.
9.8 Law. This Assigmnent shall be governed by, and construed in accordance
with, the laws of the State of California, except to the extent Federal laws preempt the laws of
the State of California.
9.9 Waiver. No exercise of any right or remedy hereunder shall preclude the
exercise of any other right or remedy or the later exercise of the same right or remedy. Waivers
and approvals under this Assignment shall be in writing, and unless otherwise expressly stated
waivers and approvals shall apply only to the specific circumstances addressed.
9.10 Termination of Assignment. Upon the performance of all obligations
secured by this Assignment (as evidenced by the recordation in the Official Records of a hill
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reconveyance of the Deed of Trust), this Assignment shall be void and of no effect; but the
affidavit of any officer of Agent stating that any such obligations have not been performed shall
be conclusive evidence of the validity, effectiveness and continuing force of this Assigmnent,
and any person may, and is hereby authorized to, rely upon any such affidavit. Notwithstanding
anything herein to the contrary, however, this Assigmnent shall survive a Foreclosure and inure
to the benefit of any Purchaser.
9.11 Other Securitv. Agent may take or release other security for the
perforniance of the obligations secured by this Assignment and Agent may release any party
primarily or secondarily liable for the performance of any such obligations and may apply any
other security held by Agent in connection with the Loan to the satisfaction of such obligations
all without prejudice to any of Agent's rights under this Assigmnent.
9.12 Estoppel Certificate. Within ten (10) days after request by Agent,
Borrower shall deliver to Agent, and to any party designated by Agent, an estoppel certificate
executed by Borrower, in recordable form, certifying that this Assignment and the Development
Agreement are in frill force and effect, that there are no defaults under the Development
Agreement or specifically setting forth any claimed defaults, as the case may be, and any other
information reasonably requested by Agent.
9.13 Entire Avreement; Incorporation. This Assignment contains or expressly
incorporates by reference the entire and exclusive agreement of the parties (except for any
applicable provisions in the Loan Documents) with respect to the matters contemplated herein,
and this Assigmnent shall not be amended or modified in any way except by written instrument
which is executed by all parties hereto. Exhibit A and Exhibit B, each as attached to this
Assigmnent, are incorporated into and made a part of this Assignment. Notice of acceptance of
this Assigmnent by Agent is hereby waived.
9.14 Independent Remedies. The Borrower's Rights are also encumbered by
the Deed of Trust and a UCC -1 Financing Statement (the "Financing Statement"). The parties
intend that Agent's rights and remedies with respect to the Borrower's Rights under this
Assigmnent, and Agent's rights and remedies with respect to the Deed of Trust and the Financing
Statement, shall be separate and independent remedies (although Agent may at its option conduct
a unified foreclosure sale of real and personal property as permitted under applicable law).
9.15 Severabilitv. If any one or more of the provisions contained herein, or the
application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such provision in every other
respect and the remaining provisions hereof shall not in any way be impaired, and there shall be
substituted for the invalid, illegal or unenforceable clause, the most comparable provision which
is valid, legal or enforceable, it being intended that all of the parties' respective rights and
obligations hereunder shall be enforceable to the fullest extent permitted by law.
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9.16 Counterparts. This Assignment and the attached Consent and Agreement
may be executed in any number of counterparts which shall constitute one agreement.
Counterpart signature pages may be compiled into one or more original documents for
recordation or otherwise.
[Signatures on next page]
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IN WITNESS WHEREOF, Borrower has executed this Assignment in favor of Agent as
of the date first above written.
Borrower:
NORTHGATE MALL ASSOCIATES,
a California general partnership
By: Macerich Northgate GP I LLC, a Delaware limited
liability company, its general partner
By: I . ...... ..._ ...
Name:
Title:
W01 -u CST:3KEa 1401 64367s S-1
EXHIBIT A
DESCRIPTION OF PROPERTY
That certain real property located in the City of San Rafael, County of Marin, State of California,
more particularly described as follows:
Beginning at a point on the Easterly boundary of Northgate Drive, as shown on that certain map
entitled, "Map of Northgate Regional Shopping Center", recorded September 10, 1963 in
Volume 12 of Maps at Page 19, Marin County Records, which point is the Southerly terniinus of
the course "N 32° 00'00" E. 294.85", as shown on said snap; thence along the boundaries of
Northgate Drive, of Las Gallinas Avenue and of Los Ranchitos Road, as shown on said map, the
following courses and distances: North 32° 00'00" East, 294.85 feet; thence along a curve to the
left, whose center bears North 58° 00'00" West, having a radius of 1304.00 feet through a
central angle of 37° 43'06", a distance of 858.44 feet; thence along a curve to the right, whose
center bears North 84° 16' 54" East, having a radius of 30.00 feet through a central angle of 109°
13'06", a distance of 57.19 feet; thence South 76° 30'00" East 10.81 feet; thence along a curve
to the right, whose center bears South 13° 30' 00" West, having a radius of 427.89 feet through a
central angle of 19° 47' 56", a distance of 147.86 feet; thence South 56° 42'04" East 32.12 feet;
thence along a curve to the left, whose center bears North 33° 17'56" East, having a radius of
730.04 feet, through a central angle of 26° 24'46", a distance of 336.54 feet; thence South 83°
06'50" East, 330.92 feet; thence along a curve to the right, whose center bears South 6° 53' 10"
West, having a radius of 170.01 feet through a central angle of 83° 00' 21 ", a distance of 246.30
feet; thence South 0° 06' 29" East, 102.13 feet; thence South 0° 04' 50" West 112.63 feet; thence
along a non -tangent curve to the right whose center bears South 89° 50' 48" West, having a
radius of 970.00 feet, through a central angle of 29° 33' 10", a distance of 500.32 feet; thence
South 29° 23'52" West, 100.00 feet; thence along a non -tangent curve to the left, whose center
bears South 60° 35' 50" East, having a radius of 780.00 feet through a central angle of 43° 51'
22", a distance of 597.04 feet; thence South 14° 28'26" East, 100.65 feet; thence along a curve to
the right, whose center bears South 75" 31' 34" West, having a radius of 50.00 feet through a
central angle of 89° 59'48", a distance of 78.54 feet; thence South 75° 31' 22" West 518.22 feet;
thence along a curve to the right, whose center bears North 14° 28'38" West, having a radius of
224.00 feet through a central angle of 85' 18'00" a distance of 333.48 feet; thence along a curve
to the left, whose center bears South 70° 49'22" West, having a radius of 291.67 feet through a
central angle of 38° 49'22" a distance of 197.63 feet; thence North 58° 00'00" West, 65.94 feet
and thence along a curve to the right, whose center bears North 32° 00'00" East, having a radius
of 446.00 feet through a central angle of 90° 00'00" a distance of 700.58 feet to the point of
beginning.
EXCEPTING therefrom that portion of said land as described in the Deed to the City of San
Rafael, dated November 15, 1984 and recorded January 11, 1985 as Instrument No. 85001287,
Marin County Records, and more particularly described as follows:
Begimling at a point on the Southerly boundary of Las Gallinas Avenue, as shown on that certain
map entitled, "Map of Northgate Regional Shopping Center", recorded September 10, 1963 in
Volume 12 of Maps at Page 19, Marin County Records, at the Westerly tenninus of the course
shown as "South 76° 30'00" East, 10.81 feet", on said map (12 RM 19); thence along said
w02AVEsT:3KEDI'401693678.; EXHIBIT A
Southerly boundary of Las Gallinas Avenue (12 RM 19) the following courses and distances:
South 76° 30' 00" East 10.81 feet; thence Southeasterly along a curve to the right, tangent to the
preceding course, having a radius of 427.89 feet through a central angle of 19° 47' 56", an arc
length of 147.86 feet; thence South 56° 42' 04" East, 32.12 feet and thence Southeasterly along a
curve to the left, tangent to the preceding course, having a radius of 730.04 feet through a central
angle of 16° 00' 00", an arc length of 203.87 feet; thence leaving said Southerly boundary (12
RM 19) North 72° 42' 04" West, 71.15 feet; thence Northwesterly along a curve to the right,
tangent to the preceding course, having a radius of 481.90 feet through a central angle of 16° 00'
00", an arc length of 134.57 feet; thence North 56° 42' 04" West, 32.12 feet; thence
Northwesterly along a curve to the left, tangent to the preceding course, having a radius of
417.89 feet through a central angle of 19° 47' 56", an arc length of 144.40 feet; thence North 76"
30' 00" West, 17.91 feet; thence Westerly along a curve to the left, tangent to the preceding
course, having a radius of 22.48 feet through a central angle of 109° 13' 06", an arc length of
42.85 feet to the point of reverse curve on the Easterly boundary of Northgate Drive, as shown
on said snap (12 RM 19); thence along said Easterly boundary of Northgate Drive (12 RM 19)
Northerly along a curve to the right, whose center bears North 84° 16' 54" East, having a radius
of 30.00 feet through a central angle of 109° 13'06", an are length of 57.19 feet to the point of
beginning.
ALSO EXCEPTING therefrom that portion of said land as described in the Deed to the City of
San Rafael, dated November 15, 1984, recorded January 11, 1985 as Instrument No. 85001288,
Marin County Records, and more particularly described as follows:
Beginning at a point on the Westerly boundary of Los Ranchitos Road, as shown on the "Map of
Northgate Regional Shopping Center", recorded September 10, 1963 in Volume 12 of Maps at
Page 19, Marin County Records; at the Northerly tenminus of the course shown as "South 29° 23'
52" West, 100.00 feet" on said map (12 RM 19); thence along said Westerly boundary of Los
Ranchitos Road (12 RM 19) South 29° 23'52" West, 100.00 feet and thence Southwesterly along
a curve to the left, whose center bears South 60° 35' 50" East, having a radius of 780.00 feet
through a central angle of 3° 31' 22" , an arc length of 47.96 feet; thence leaving said Westerly
boundary (12 RM 19) Northeasterly along a curve to the left, whose center bears North 64° 07'
12" West, having a radius of 32.00 feet through a central angle of 24° 34' 59", an arc length of
13.73 feet; thence Northeasterly along a reverse curve to the right, whose center bears South 88'
42' 11" East, having a radius of 48.00 feet through a central angle of 21° 45'26", an arc length of
18.23 feet; thence North 23° 03' 15" East, 43.20 feet; thence Northeasterly along a curve to the
right, tangent to the preceding course, having a radius of 100.00 feet through a central angle of
16° 40' 58", an arc length of 29.12 feet; thence North 39° 44' 13" East, 24.02 feet; thence
Northeasterly along a curve to the right, tangent to the preceding course, having a radius of 58.00
feet through a central angle of 12° 41' 56", an arc length of 12.86 feet; thence Northeasterly
along a reverse curve to the left, whose center bears North 37° 33' 51" West, having a radius of
42.00 feet, through a central angle of 23° 27' 17", an arc length of 17.19 feet to said Westerly
boundary of Los Ranchitos Road (12 RM 19); thence along said Westerly boundary (12 RNI 19),
Southwesterly along a curve to the right, whose center bears North 61° OF 08" West, having a
radius of 970.00 feet through a central angle of 0° 25' 06", an arc length of 7.08 feet to the point
of beginning.
APN: 175-060-12, 175-060-40, 175-060-59, 175-060-60, 175-060-61
W02A EST:3KEDI 401693678.5 EXHIBIT A
Exhibit B
Consent and Agreement of City
This Consent and Agreement of City (this "Consent") is made by the CITY OF SAN RAFAEL,
a municipal corporation ("City") and is attached to that certain Collateral Assigmnent of
Development Agreement dated as of...... , 2009 (the "Assip-nment"), made by
NORTHGATE MALL ASSOCIATES, a California general partnership ("Borrower") in favor
of U.S. BANK NATIONAL ASSOCIATION, a national banking association ("Agent"), as agent
for itself and the other "Lenders" now or hereafter a party to the Loan Agreement (collectively,
"Lenders"). All capitalized terms used but not defined in this Consent shall have the same
meanings as in the Assigmnent. City hereby certifies to and agrees with Agent as follows:
1. Development Agreement Estoppel. (i) The Development Agreement is in full
force and effect and has not been amended other than as described in the Assignment, (ii) there
are no currently effective notices of default given or received by any party under the
Development Agreement, and (iii) to City's best knowledge, no default or event or condition that
would constitute a default with the giving of notice or the passage of time or both, currently
exists with respect to the Development Agreement.
2. Consent to Collateral Assiiznment. City hereby consents to the Assignment. City
acknowledges and agrees that the Assignment to Agent is for security, and that neither Agent nor
any Lender is assuming nor shall be required to assume any obligations under the Development
Agreement by virtue of the Assignment, including without limitation by virtue of any actions
taken by Agent to cure any default of Borrower under the Development Agreement. Neither
Agent nor any Lender shall have any liability for any actions taken by any party (other than
Agent or any Lender) under the Development Agreement.
3. Development Agreement Amendments. Any amendments to the Development
Agreement shall require the written consent of Agent, which consent shall not be unreasonably
wid-dield or delayed.
4. Transfers Following a Foreclosure and Rie_ hts of MortaaRee. Borrower's granting
of the Deed of Trust to Agent, and any transfer of title to the Property pursuant to a Foreclosure,
shall not constitute a violation of any provision of the Development Agreement. In connection
with or following a Foreclosure, (i) City shall not unreasonably withhold or delay its approval to
any proposed assignment and assumption of Borrower's rights and obligations under the
Development Agreement, or to any reasonable extensions of time periods for performance set
forth in the Development Agreement, and (ii) City shall not unreasonably withhold or delay its
execution of documents similar to this Consent in favor of future lenders acquiring a security
interest in the Property. Without limiting the foregoing, Section 2 of this Consent or any other
provision of this Consent, City acknowledges that Agent is a "Mortgagee" as defined in
Section 10 of the Development Agreement and Agent has the rights of a Mortgagee provided
under Section 10 of the Development Agreement.
5. Notice and Cure Riszht. City acknowledges and agrees that Agent is hereby
entitled to notice of default under the Development Agreement and that City shall allow Agent a
w02-WEST:3KEDI 401693673 CONSENT
reasonable amount of time to cure such defaults (but Agent shall have no obligation to do so).
All notices to Agent shall be given to the following address (or any other address of which Agent
has notified City in writing) by certified snail or commercial courier (in each case, with proof of
delivery requested):
U.S. Bank National Association
Commercial Real Estate — Los Angeles
633 West 5th Street, 29th Floor
Los Angeles, California 90071
Attn: Adrian Metter
6. Agreement to Perform Obligations. City agrees that, in the event of a Foreclosure
or if Agent or any other Purchaser otherwise takes title to any portion of the Property, City shall
continue to perform all of its obligations under the Development Agreement for the benefit of
Agent or any other Purchaser, and that the failure to do so shall constitute a default under the
Development Agreement. City reaffirms and acknowledges that, following a Foreclosure, City
shall not have any liens against the Property to secure any indebtedness or obligations that arose
prior to Foreclosure.
7. Assignment of Payments. The City acknowledges that pursuant to the
Assignment, Borrower has assigned to Agent all Payments now or hereafter owing to Borrower
under the Development Agreement (if any), which Payments, during a Default, are to be paid
directly to Agent (unless Agent otherwise directs in writing). To the extent any such Payments
now or hereafter become due, City agrees that if notified by Agent that a Default has occurred
(as defined in the Assignment), (i) City will make any such Payments directly to Agent, and
(ii) City will not make any Payments to Borrower unless directed in writing by Agent to do so.
/Signature on following page/
W02-WEST.3KEDI 401693678 CONSENT
CITY:
CITY OF SAN RAFAEL, a municipal corporation
KEWNORDHOFF, CITY MAN G�R /
[Printed Name and Title
ATT;S��� G , 12 czre__
,City Clerk
APPROVED AS TO FORM:
0-4--�4 "(de I
bp -L- ROBERT F. EPSTEI City Attorney
W02-WEST:3 KED 1 \401693678 CONSENT
ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF 1%4 R /N
On )IOI/ENBE±Z fgZwlbefore me, e1r j ie e - &PvC, a Notary Public, personally
appeared k&AN IMODrao« who proved to me on the basis of satisfactory evidence to be
the person(s) whose name(s&re subscribed to the within instrument and acknowledged to me
that&u /she/they executed the same in/her/their authorized capacity(ies), and that by
0/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ""S_qh�;ax
ESTHER C. BEIRHE
COmmisslon #r 1744002
Notary PublIC - California
Marin County
WCOrrmlBONAM10.2011
W02-\UST.3KED1 401693673
ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF
On , before me, I I a Notary Public, personally
appeared who proved to me on the basis of satisfactory evidence to be
the person(s) whose name(s) is./are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
..........