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HomeMy WebLinkAboutCA Northgate Mall to U.S. Bank Development Agr.Agenda Item No: 11 Meeting Date: November 16, 2009 SAN RAFAEL CITY COUNCIL AGENDA REPORT Department: City Attorney's Office Prepared by: Lisa 9gldfien, Deputy City Attomey City Manager Approval: SUBJECT: Resolution Authorizing the City Manager to Execute a Consent to Collateral Assignment of Development Agreement from Northgate Mali Associates to U.S. Bank RECOMMENDATION: Adopt Resolution. BACKGROUND: In June 2008, the City Council approved a Development Agreement between the City and Northgate Mall Associates, a General Partnership, establishing certain development rights and obligations of both parties in connection with the renovation of the Northgate Mall. The Northgate mall renovation is nearing completion. U.S. Bank has agreed to loan funds in the amount of $60,000,000 to Northgate Mall Associates in connection with the project. As a condition of the financing, U.S. Bank is requiring Northgate Mall Associates, the borrower, to execute a security instrument entitled "Collateral Assignment of Development Agreement," a copy of which is attached hereto as Exhibit A. The collateral assignment conveys to U.S. Bank the borrower's rights (and obligations) under the Development Agreement in the event of borrower's default on its obligations under the loan agreement. As an additional condition of funding the loan, U.S. Bank is requiring that the City give its consent to the collateral assignment. ANALYSIS: A draft of the proposed "Consent and Agreement of City' is attached hereto as Exhibit B. The requested consent to the collateral assignment is consistent with Section 10 of the Northgate Development Agreement which allows a mortgagee of the developer to succeed to the developer's rights 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. The City's consent to the proposed collateral assignment is required for Northgate Mall Associates to obtain this loan. The City Attorney's office has approved the consent as to form, and has prepared a Resolution authorizing the City Manager to execute the consent on behalf of the City. FISCAL IMPACT: Approval of the collateral assignment will have no fiscal impact on the City. In the event Northgate Mall Associates defaults on its loan obligations to U.S. Bank and U.S. Bank exercises its default remedies, U.S. Bank may gain title to the Northgate property and will succeed to the rights, and obligations, of the developer under the Development Agreement. OPTIONS: 1. Consent to the proposed collateral assignment between Northgate Mall Associates and U.S. Bank. 2. Do not consent to the proposed collateral assignment. Staff does not recommend this because it will prevent the close of this needed financing for the Northgate mall renovation. 491a$]1rit911140NN) 2tWA File No.: Council Meeting: Disposition: SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2 ACTION REQUIRED: Adopt the attached Resolution. ATTACHMENTS: Resolution Exhibit A: Draft Collateral Assignment of Development Agreement Exhibit B: Draft Consent and Agreement of City of San Rafael RESOLUTION NO. 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, THE, 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°1 day of November 2009 by the following vote, to wit: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: 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: Felly E. Simpson, Esq. THIS SPACE ABOVE FOR RECORDER'S USE COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT THIS COLLATERAL ASSIGNMENT OF DEVELOPMENT AGREEMENT (this "Assignment") 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 "Property"). 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 "C"), 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 $80,000,00 .9060.000.000 00 (stth�ect 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 Agreement") and the other "Loan Documents" (which term as used herein shall have the same meaning that is given to such term 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 beneficiary, and encumbering Borrower's interest in the Property, which Deed of Trust shall be recorded substantially concurrently with the recordation of this Assignment. 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 Assignment, the following terms 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, rights 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. Payments. 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 Assignment. 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. W02-WEST:3KHDl\4(46q347&-3ALL036J-8A -2- 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 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. 5. 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 performance by the other parties (i.e., other than Borrower) to the Development Agreement of the material covenants, representations, warranties, terms, 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, terms, covenants, agreements, undertakings, representations, or warranties of the City or any other party to the Development Agreement; or (iv) terminate, 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, terms, 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 null 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 the best of Borrower's 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 W02-WEST:3KED1\441693&7&390 691 36784 -3- the terms, covenants, obligations, undertakings, representations, warranties, agreements or conditions exist with respect to the Development Agreement; and 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 Assignment 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, term, 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) terminate, 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) perform 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 malting of applications for fee credits or Payments and the conveyance of improvements to be W02-WEST:3KEDl\ 01693678 -4- 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. 7.3 Notice. Until Agent notifies City that the Loan is paid in full (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 fully 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 terms, 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 willful 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. 9. Miscellaneous. 9.1 Recordation. This Assignment shall be recorded in the Official Record,, 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: W02-WEST3KED1\4� -5- If to Agent: U.S. Bank National Association Commercial Real Estate—Los Angeles 633 West 51' Street, 291' Floor Los Angeles, California 90071 Attn: Adrian Metter 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 any 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, acknowledge and deliver such further instrument and perform such other acts as may be necessary, desirable or proper to carry out the purposes of this Assignment. 9.5 Attorney sy 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 term of this Assignment. 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 Assignment 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. W02-WEST:3KED1\496935783 61U 93� -6- 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 full 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 Assignment, and any person may, and is hereby authorized to, rely upon any such affidavit. Notwithstanding anything herein to the contrary, however, this Assignment shall survive a Foreclosure and more to the benefit of any Purchaser. 9.11 Other Security. Agent may take or release other security for the performance 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 Assignment. 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 Rill 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 Agreement• 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 Assignment 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 Assignment, are incorporated into and made a part of this Assignment. Notice of acceptance of this Assignment 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 Assignment, 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 Severability. 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 W02-WEST:3KED1\486593 .67&3401¢ 36784 -7- 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. 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] W02-WEST:3KED1\grnm��o �n016936784 -8- 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 Name: Title: Name: Title: W02-WEST:3KED1\ .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 terminus of the course "N 32° 00' 00" E. 294.85", as shown on said map; 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° 1T 56" East, having a radius of 730.04 feet, through a central angle of 260 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 600 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 890 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: Beginning 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 terminus of the course shown as "South 76° 30' 00" East, 10.81 feet", on said map (12 RM 19); thence along said woe-WESTSKRn " ^oi6936 sa EXHIBIT 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 tlurough a central angle of 16° 00' 00", an are 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 are 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 are length of 42.85 feet to the point of reverse curve on the Easterly boundary of Northgate Drive, as shown on said map (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 arc 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 terminus 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 30 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 are 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 are 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 are length of 12.86 feet; thence Northeasterly along a reverse curve to the left, whose center bears North 37° 33' 5 V West, having a radius of 42.00 feet, through a central angle of 23° 27' 17", an are length of 17.19 feet to said Westerly boundary of Los Ranchitos Road (12 RM 19); thence along said Westerly boundary (12 RM 19), Southwesterly along a curve to the right, whose center bears North 61° 01' 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 W02 -WEST: 3KED I VGV,93679.34016936784 EXHIBIT 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 Assignment of Development Agreement dated as of , 2009 (the "Assignment"), made by NORTHGATE MALL ASSOCIATES, a California general partnership ("Borrower") in favor of U.S. BAND 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 Assignment. 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 Assignment. 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 -(i) any actions taken by Agent to cure any default of Borrower under the Development Agreement, '' acquisition of title te the Woperty by f6reelRquye RF deed in lieu of feFeelesure by Agent or art), a�ffiliate ef Ageitt, or (iii) an), development or constfuetie4q aetivitipq undei#aken by Agent or an), affiliate of Agent dining or after a for q1111p, Ar dsed in iie�l - of foreclosure of the Property in efder to presen,e the value of the Prepefty, it being Ageiit'.q a4qd I in such event to sell the Property to ^ thirdpart�,.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 withheld or delayed. 4. Transfers Following a Foreclosure and Rights of Mortgagee. 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 W02-WEST:3KEDl\ 016936784 CONSENT -I I I 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 Right. City acknowledges and agrees that Agent is hereby entitled to notice of default under the Development Agreement and that City shall allow Agent a reasonable amount of time to cure such defaults (but Agent shall have no obligation to do so).—In- addition, City acknowledges that g the time periods set fefth ift the last seti�eriee of SeetiRn 10 Hf the Development Agreement, Gitywill provide Agent with a reasonable amount of time tR Pure DeyelepeF's deC .ilts pert Forer.l wire i f a eiire eannat «e....r.nabl, be e fk r.ted within the time per od provided in the Development Agf eemepZa leng as Agefl� eRm-m-eneeq th-0, cure within the time period provided in the Development Agreement and thereafter diligenfly pfaseet4essuehetifeteeempletion.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 mail 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) w0e-wasr:3KEDI w^ °p��'P.'"Qi69367sA CONSENT CITY: CITY OF SAN RAFAEL, a municipal corporation ATTEST: [Printed Name and Title] City Cleric W02-WEST: 3KED t 01693678 CONSENT ACKNOWLEDGEMENT STATE OF CALIFORNIA COUNTY OF On before me, , 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 W02-WF,ST:3KED1\49169367&3401693678 4