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Home My WebLink AboutHuntington Center Associates, LLC - Bella Terra Associates, LLC - 2005-08-08Default Resolution Network PRESORT PO fox 9009 First -Class Mail Temecula, CA 92589-9009 U.S. Postage and Fees Paid 11111111111111111 111 11 1 VVS0 2231100579 City of Huntington Beach Attn: City Clerk P.O. Box 190 Huntington Beach, CA 92648 M 20100217-88 GANOD %ice � - l a 7 �� L ��..�.-� Gam. 1027-V9 2231100579 Recording Requested By and When Recorded Mail to: This Document was electronically recorded by California Hall Service A Recorded In Official Records, oranges County Tom Daly, Clerk -Recorder Fidelity National 'Title Company 1111111111111111011i11 111 1 18.00 135 aiat St. Ste.1900 201000003060'1 01:18 rM b 1/21110 San Francisco, CA 94108 93 401 N16 4 0.00 0.00 0.00 0.00 9.00 0.00 0.00 0.00 Trustee Sale No: 10-00916-4 Loan No- 03-0266703 Bella Terra Office 1F YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR PAYMENTS, IT MAY BE SOLD WITHOUT ANY COURT ACTION, and you may have the legal right to bring your account in good standing by paying all of your past due payments plus permitted Oasts and expenses within the time permitted by law for reinstatement of your account, which is normally five business days prior to the date set for the sale of your property. No sale date may be set until three months from the date this notice of default may be recorded (which date of recordation appears on this notice). This amount is $2,206,584.00 as of January 20, 2010, and will increase until your account becomes current. While your property is in foreclosure,. you still must pay other obligations (such as insurance and taxes) required by your mote and deed of trust or mortgage. If you fail to make future payments on the Doan, pay taxes on the property, provide insurance on the property, or pay other obligations as required in the dote and deed of trust or mortgage, the beneficiary or mortgagee may insist that your do so in order to reinstate your account in goad standing. In addition, the beneficiary or mortgagee may require as a condition to reinstatement that you provide reliable written evidence that you paid all sehior liens, property taxes, and hazard insurance premiums. Upon your written request, the beneficiary or mortgagee will give you a written itemization of the entire amount you must pay. You may not have to pay the entire unpaid portion of your account, even though full payment was demanded, but you must pay all amounts in default at the time payment is made. However, you and your beneficiary or mot tgagee may mutually agree in writing prior to the time the notice of sale is posted (which may not be earlier than the end of the three-month period stated above) to, among anther things, (1) provide additional time in which to cure the default by transfer of the property or otherwise; or (2) establish a schedule of payments in osier to cure your default; or both (1) and (2). FollovAng the expiration of the time period referred to in the first paragraph of this notice, unless the obligation being foreclosed upon or a separate written agreement between you and your creditor permits a longer period, you have only the legal might to stop the sale of your property by paying the entire amount demanded by your creditor. To find out the amount you roust pay, or to arrange for payment to stop the foreclosure, or if your property is in foreclosure for any other reason, contact: McKenna Lang & Aldridge LLP c/o Fidelity National Title Company 13:5 Main St. Ste.1900 San Francisco, CA 94105 Phone: 415-247-2450 TS# 10-00916-4. If you have any questions, you should contact a lawyer or the governmental agency which may have insured your loan. Notwithstanding the fact that your property is in foreclosure, you may offer your properly for sale, provided the sale is concluded prior to the conclusion of the foreclosure. REMEMBER, YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT ACTION. NOTICE IS HEREBY GIVEN: That default has been declared by the current beneficiary (the "Beneficiary') under that certain Dead of Trust, Assignment of Leases and Dents and Security Agreement dated as of May 10, 2007, executed by Bella Terra Office JV, LL.C, a Delaware limited liability company, Alf° Bella Terra, LL,C, -a Delaware limited liability company, and Encino Della Terra, LLC, a Delaware limited liability company, as trustor (collectively, the "Original Trustor), to secure obligations in favor of Merrill Lynch Mortgage Leading, Inc., and Mortgage Electronic Registration Systems, Inc., its nominee, as their interests may appear, as beneficiary, recorded on May 10, 2007, as Instrument No. 2007000306114. of Official Records in the office of the Recorder of Orange County, California (the "Original Deed of Trust`% and that The Original Deed of Trust and any modifications thereto are collectively referred to herein from time to time as the "Deed of Trust', and that The Deed of Trust encumbers certain property more particularly described therein, (with any additions thereto and less any reconveyances therefrom, the "Trust Properl)"`}, and that The Deed of Trust secures the payi»ent of and the performance of certain obligations, including but not limited to, the obligations set forth in that certain Promissory Note with a face amount of $105,000,000.00 (the "Original Note"), and that certain Loan Agreement dated as of May 10, 2007 by and between the Original Trustor, and Merrill Lynch Mortgage Lending, Inc, (the "Original Loan Agreement"), and that The Original Note and any modifications thereto are collectively referred to herein from time to time as the "Mote", and that The Original Loan Agreement and any modifications thereto are collectively referred to herein from time to time as the "Lean Agreement", and that The Note, the Loan Agreement, and any other documents evidencing the obligations secured by the Deed of Trust, together with any modifications thereto, are collectively referred to herein from time to time as the "Secured Obligations", and that The term `"Truster"as used herein shall mean ,either the Original Trustor or, if applicable, its successor in interest with respect to the Trust Property, and that The team "Trustee" as used herein shall mean the original trustee under the Deed of Trust or, if applicable, its successors in interest, and that Capitalized terms not defined herein shall have the some meaning as those in the Note, the Loan ,Agreement, than Deed of Trust and/or any ether loan documents, and that A breach of, and default in, the obligations for which said Deed of Trust is security has occurred in that the Trustor has failed to perform obligations pursuant to or cruder the Secured Obligations and/or the Deed of Trust, specifically but without limitation: a) wiled to pay payments which become due under that dote and the Lawn Agreement; together with late charges due, escrow installments, property protection advances and default interest; b) Failed to comply with certain reporting requirements set forth in Section 4.11 of the Loan Agreement; c) Failed to pay attorneys fees and expenses which have: been incurred and which shall continue to accrue; The Trustor has failed, or shall hereafter fail, to pay all other and subsequent interest and/or principal together with late charges and/or default interest and/or any and all other obligations and indebtedness as may become due under the terms of or under the Secured Obligations and/or Deed of Trust and not performed and/or paid including, without limitation, reimbursement to the Beneficiary and/or the Trustee of any of the following fees, costs and expenses heretofore or hereafter incurred, suffered or paid by the Beneficiary and/nor the Trustee in connection with the Secured Obligations and/or' Geed of Trust, the Trustor or the Trust property: 1. Attorneys' fees and costs including, without limitation, those incurred in connection with foreclosure of the Dead of Trust, appointment of a receiver with respect to the Trust Property, litigation over the amount, validity, enforcement or priority of the Secured Obligations andf or Deed of Trust, or commencement of an action or proceeding for relief from any bankruptcy court or other judicial or administrative stay, order or injunction, and all other such matters; 2. Deal and/or personal properly taxes, or payments under or with respect to prior or junior liens or encumbrances, insurance premiums and all other such matters; 3. Protection, preservation, repairs, restoration or completion of the Trust (Property, and all other such matters; 4. Compliance with any applicable laws, regulations or orders, and all other such natters; S. Trustee's fees, trustee's sale guarantee premiums, and other foreclosure casts, and all other such matters; and that It is the intention of the Beneficiary to include herein all delinquent sums or obligations now or hereafter secured by and under the Deed of Trust, whether presently known or unknown, and whether or not specifically set forth herein, and that E Beneficiary hereby elects to conduct a unified foreclosure sale pursuant to the provisions of California Commercial Cade Section 99 (a)(1)(B) and to include In the nonjudicial foreclosure of the estate described in this Notice of Default and Election to Sell Under Creed of Trust all of the personal property and fixtures described in the Deed of Trust and in any other instruments in favor of Beneficiary. Beneficiary reserves the right to revoke its election as to some or all of said personal property and/or fixtures, or to add additional personal property and/or fixtures to the election herein expressed, at Beneficiary's sale election, from time to time and at any time until the consummation of than trustee`s sale to be conducted pursuant to the Deed of Trust and this Notice of Default and Election to Sell Under peed of Trust, and that By reason thereof, the Beneficiary has declared and does hereby declare all sums secured thereby immediately due and payable and has elected and does hereby elect to cause the Trust property to be sold to satisfy the obligations secured thereby. Date., January 21, 2010 1A-009"16-4 Fidelity National Title Company, Agent for the Beneficiary By: Title Court Service, Inc., its agent By: STEWART TITLE OF CALIFORNIA, INC. National Commercial Closing Division 505 No. Brand Blvd., Suite 800A, Glendale, CA 91203 E (818) 547-2030 www.stewarttitiela.com AUG 18 2005 ,;CitVA Pom9V S ®f cp , August 17, 2005 Redevelopment Agency of the City of Huntington Beach -via Federal Express- 2000 Main Street - City Hall Huntington Beach, CA 92648 Attn: Leonie Mulvihill, Deputy City Attorney Re: Escrow # 05110249 Property Address: Bella Terra Shopping Center Huntington Beach, CA In connection with the above referenced escrow, enclosed herewith please find the following: 1.) Grant Deed from Huntington Center Associates, LLC to Bella Terra Associates, LLC (1 conformed copy) 2.) Agreement Containing Covenants Affecting Real Property (1 conformed copy) 3.) First Implementation Agreement to Owner Participation Agreement (1 original) 4.) Assignment and Assumption Agreement (OPA) (1 original) 5.) Assignment and Assumption Agreement (Parking) (1 original) 6.) Estoppel Certificate and Request for Notice (OPA) (1 original) 7.) Estoppel Certificate and Request for Notice (Parking) (1 original) Should you have any comments, questions, or concerns, please do not hesitate to contact the undersigned. M19 J ' 1te o iza C m erciV Escrow Officer N onal Title Services D ect Phone: (818) 547-2030, EXT 212 fax: (818) 546-1374 jloaiza@stewart.com cc: Barton E. Clemens, Jr., Esq. w/ encl. - including 1 original Agreement Containing Covenants ('via FedX) Eric Sahn w/ encl. (via FedX) D. Eric Remensperger w/ encl. (via FedX) Jesse Sharf, Esq. w/ encl. - including 1 original Agreement Containing Covenants (via FedX) Cristina Agra -Hughes w/ encl. (via FedX) James C. Hughes, Esq. w/ encl. (via FedX) Michael Wise w/ encl. (via FedX) Michelle Moebius, esq. w/ encl. (via FedX) Micah DeCamp w/ encl. (via FedX) RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Barton E. Clemens, Jr. SEED MACKALL LLP 1332 Anacapa Street, Suite 200 Santa Barbara, CA 93101 CODILVE of Document Recorded At rC�MCounty Recorder c30� 4 �(0— aD0 Has not been compared with original. Original will be returned when processing has been completed. SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO.: )q'Z _ 013 ` 14, 11. ap � GRANT DEED This GRANT DEED (this "Deed") is executed as of the 15th day of August, 2005, from Huntington Center Associates, LLC, a Delaware limited liability company ("Grantor"), to Bella Terra Associates, LLC, a Delaware limited liability company ("Grantee"). WITNESSETH: NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Grantor, Grantor does hereby grant, bargain and sell, unto Grantee, all the real property more particularly described on Exhibit A, attached hereto and made a part hereof, together with all of Grantor's right, title and interest in all buildings, improvements, fixtures, easements, tenements, hereditaments, and appurtenances of every kind or nature belonging thereto (hereinafler collectively referred to as the "Property"), subject to any unrecorded leases, any taxes or assessments not yet due and payable, all matters of record and all matters that would be reflected on an accurate survey, as at the time of recordation of this Deed. . By acceptance of this Deed, Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of sex, sexual orientation, marital status, race, color, creed, religion, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property herein conveyed, nor shall the Grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property herein conveyed. The foregoing covenants shall run with the land. [Remainder of Page Intentionally Left Blank] FABEC\D1?v1\Be11aTerra\Grant Deed.FINAL.DOC GRANTOR: HUNTINGTON CENTER ASSOCIATES, LLC, a Delaware limited liability company By: Huntington Management Ent., LLC, a Delaware limited liability company, its Manager By: BMLF/Huntington, LLC, a Delaware limited liability company, its Manager By: _ Name: Title: ,At • U.4Ge 2 State of } }.ss County of } On 5 , 2005, before me Chi Notary Publiq�in and for the said State and County, personally appeared a personally known to rn ) to be the persono whose name*is/.,3w subscribed to the within instrument and acknowledged to me that h6shel" executed the same in Xs/her/thy authorized capacity, and that by llis/her/tl�ir signatureWon the instrument the person(k), or the entity upon behalf of which such person(4-acted, executed the instrument. WITNESS my hand and, official se 1. r Signature / l My Corpimiss on Expires �O �( �5i 9 z JUAN CARLOS HERNANDEZ Commission # 1380176 o' Notary Public — California Los Angeles County My Comm. Expires Oct 15, 2006 (SEAL) 040247770 EXHIBIT "A" LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, DESCRIBED AS FOLLOWS: PARCEL A: PARCELS 2 THROUGH 9, INCLUSIVE, OF PARCEL MAP NO. 86-200, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA AS PER MAP RECORDED IN BOOK 255 PAGES 40 THROUGH 45, INCLUSIVE, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THOSE PORTIONS OF SAID PARCELS 4 AND 8 CONVEYED TO THE CITY OF HUNTINGTON BEACH, A MUNICIPAL CORPORATION, BY DEED RECORDED MAY 1, 1991 AS INSTRUMENT NO. 91-209426 OF OFFICIAL RECORDS. ALSO EXCEPT THOSE PORTIONS OF PARCELS 2 AND 6 CONVEYED TO THE CITY OF HUNTINGTON BEACH, A CALIFORNIA CHARTER CITY, BY DEED RECORDED MAY 31, 2005 AS INSTRUMENT NO. 05-414924, OFFICIAL RECORDS. ALSO EXCEPT THAT PORTION THEREOF LYING BELOW A DEPTH OF 500 FEET, MEASURED FROM THE SURFACE OF SAID LAND. ALSO EXCEPT FROM PARCELS 4, 5, 6, 7, 8 AND A PORTION OF PARCEL 2 AN UNDIVIDED 55% INTEREST IN ALL THE LAND LYING MORE THAN FIVE HUNDRED (500) FEET BELOW THE SURFACE, BUT NONE OF THE LAND LYING ABOVE A DEPTH OF FIVE HUNDRED (500) FEET BELOW THE SURFACE OF THE LANDS WITH NO RIGHT OF SURFACE ACCESS OR USE OF THE LANDS LYING MORE THAN FIVE HUNDRED (500) FEET BELOW THE SURFACE, HEREINAFTER REFERRED TO AS "SAID LAND", FOR THE PURPOSES OF EXPLORING AND PROSPECTING FOR (BY GEOLOGICAL, GEOPHYSICAL, AND ALL OTHER MEANS WHETHER NOW KNOWN OR NOT), DRILLING FOR, PRODUCING, SAVINGS, TAKING AND OWNING OIL, GAS, ASPHALTUM, AND ALL OTHER MINERALS, WHETHER SIMILAR OR DISSIMILAR TO THOSE HEREIN SPECIFIED AND INCLUDING FISSIONABLE MATERIALS COLLECTIVELY HEREINAFTER REFERRED TO AS "SAID SUBSTANCES," IN, UNDER OR THAT MAY BE PRODUCED FROM SAID LAND, TOGETHER WITH ALL RIGHTS, PRIVILEGES AND EASEMENTS USEFUL OR CONVENIENT FOR OPERATIONS IN SAID LAND, IN ADJACENT OR CONTIGUOUS LANDS, AND IN OTHER LANDS IN THE SAME VICINITY, INCLUDING, BUT NOT LIMITED TO, (1) SUBSURFACE RIGHTS OF WAY FOR DRILLING, REPAIRING, RE -DRILLING, DEEPENING, MAINTAINING, OPERATING, ABANDONING, REWORKING AND REMOVING WELLS TO, IN, INTO.AND THROUGH SAID LAND; (2) THE RIGHT TO CONDUCT OPERATIONS BY METHODS NOW KNOWN OR UNKNOWN WHICH ARE REASONABLY DESIGNED TO BENEFIT OR FACILITATE THE DRILLING FOR, OR PRODUCTION OF, -1- 040247770 SAID SUBSTANCES FROM SAID LAND; (3) THE UNRESTRICTED AND EXCLUSIVE RIGHT, POWER AND AUTHORITY TO PRODUCE SAID SUBSTANCES BENEATH OR RECOVERABLE FROM SAID LAND, AND TO EXERCISE ALL OTHER RIGHTS AND PRIVILEGES HEREIN SET FORTH BY MEANS OF ANY WELL OR WELLS WHICH ARE SLANT DRILLED FROM SURFACE DRILL SITES LOCATED ON SUCH OTHER LANDS AND THE PRODUCING INTERVALS OF WHICH ARE BOTTOMED IN SAID LAND; AND (4) THE RIGHT TO DRILL A WELL OR WELLS OR USE ANY EXISTING WELLS, TO, IN, INTO OR THROUGH SAID PORTION OF SAID LAND, FOR THE PURPOSE OF INJECTING INTO SAID PORTION OF SAID LAND, OR INTO OTHER LANDS, OIL, GAS, AIR, WATER OR OTHER LIQUID OR GASEOUS SUBSTANCES, INCLUDING THE RIGHT, FROM TIME TO TIME TO IGNITE OR. OTHERWISE ACTIVATE ANY OR ALL OF SUCH SUBSTANCES SO INJECTED OR ANY OR ALL OF SAID MINERALS AND MATERIALS DESCRIBED HEREIN WITHIN SAID PORTION OF SAID LAND OR OTHER LANDS, RESERVED IN DEED RECORDED APRIL 4, 1986 AS INSTRUMENT NO. 86-136183 OF OFFICIAL RECORDS AND RE -RECORDED AUGUST 13, 1986 AS INSTRUMENT NO. 86-360236 OF OFFICIAL RECORDS. PARCEL B: 'FA; 07k NON-EXCLUSIVE EASEMENTS FOR THE INSTALLATION, OPERATION, MAINTENANCE, REPAIR, RELOCATION AND REMOVAL OF SEWERS (INCLUDING UNDERGROUND STORM SEWER), WATER AND GAS MAINS, ELECTRICAL POWER LINES, TELEPHONE LINES AND OTHER UTILITY LINES, ALL AS MORE PARTICULARLY DEFINED AND DESCRIBED IN THE CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT AGREEMENT RECORDED AUGUST 4, 1965 IN BOOK 7617 PAGE 539, AS AMENDED BY INSTRUMENTS RECORDED IN BOOK 11087 PAGE 1770, IN BOOK 11091 AND 983 AND AS INSTRUMENT NO. 87-406989, ALL OF OFFICIAL RECORDS. PART TWO: EASEMENTS FOR INGRESS AND EGRESS FOR THE PASSAGE AND PARKING OF VEHICLES AND THE PASSAGE AND ACCOMMODATION OF PEDESTRIANS, ALL AS MORE PARTICULARLY DEFINED AND DESCRIBED IN SECTION 3 (H) OF AMENDMENT NO. 2 TO CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT AGREEMENT RECORDED JULY 17, 1987 AS INSTRUMENT NO. 87-406989, OF OFFICIAL RECORDS. PARCEL C: AN EASEMENT FOR THE CONSTRUCTION AND MAINTENANCE OF A BOX CULVERT AND RELATED IMPROVEMENTS, AND FOR PEDESTRIAN AND VEHICULAR INGRESS, EGRESS AND PARKING OVER A STRIP OF LAND LOCATED BETWEEN THE 150 FOOT WIDE SOUTHERN CALIFORNIA EDISON -2- 040247770 RIGHT OF WAY AND CENTER DRIVE, ALL AS MORE PARTICULARLY DEFINED AND DESCRIBED IN THE EASEMENT AND MAINTENANCE AGREEMENT RECORDED SEPTEMBER 18, 1987 AS INSTRUMENT NO. 87-528707, OF OFFICIAL RECORDS. End of Legal Description -3- a .DOCUMENT NO. DATE RECORDED STATEMENT OF TAX DUE AND REQUEST THAT TAX DECLARATION NOT BE MADE A PART OF THE PERMANENT RECORD IN THE OFFICE OF THE COUNTY RECORDER TO: REGISTRAR -RECORDER COUNTY OF ORANGE Request is hereby made in accordance with the provisions of the Documentary Transfer Tax Act that the amount of tax due not be shown on the original document which names: HUNTINGTON CENTER ASSOCIATES, LLC (GRANTOR) and BELLA TERRA ASSOCIATES, LLC (GRANTEE) Property described in the accompanying document is located in HUNTINGTON BEACH (Show name of city or unincorporated area) The amount of tax due on the accompanying document is $ 245,971.00 XX Computed on full value of property conveyed; or Computed on full value less liens and en S as remainin of Declarant or srntwl Firm Name (County) (City) of sale. ent NOTE: After the permanent record is made, this form will be affixed to the conveying document and returned with it. FIRST IMPLEMENTATION AGREEMENT TO OWNER PARTICIPATION AGREEMENT by and between THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH and HUNTINGTON CENTER ASSOCIATES, LLC FIRST IMPLEMENTATION AGREEMENT TO OWNER PARTICIPATION AGREEMENT This FIRST IMPLEMENTATION AGREEMENT ("Agreement") is dated as of August 4, 2005 for reference purposes only, and is entered into by and between the REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body, corporate and politic ("Agency"), and HUNTINGTON CENTER ASSOCIATES, LLC, a California limited liability company ("Participant"), with reference to the following facts: RECITALS A. The Agency and Participant entered into that certain Owner Participation Agreement dated October 2, 2000, (the "OPA"). The OPA is hereby incorporated by this reference. Reference herein to the OPA shall include any and all attachments thereto. Any capitalized term not defined herein shall have the meaning ascribed to it in the OPA. B. The OPA pertains to the construction, development, operation and management of the Site, generally comprised of a retail shopping center formerly known as Huntington Center and currently known as Bella Terra. C. An Agreement Containing Covenants Affecting Real Property by and between the Agency and Participant was recorded against the Site recorded on , 2005 as Document No. within the official records of the Office of the Recorder of the County of Orange. D. The Participant entered into that certain Purchase Agreement dated as of March 31, 2005 for the Site pursuant to which the Site shall be ultimately conveyed to Bella Terra Associates, LLC, a Delaware limited liability company (the "Assignee") and has requested that the Agency approve assignment of the OPA to the Assignee (the "Assignment"). E. The Agency and Participant desire to enter into this Agreement to implement and clarify the OPA in light of the proposed Assignment as follows: (1) to extend certain dates in the Schedule of Performance; (2) to provide for approval of a Project Budget as required by Section 202 of the OPA; (3) to terminate the OPA as to the Montgomery Wards Parcel, including without limitation, the Schedule of Feasibility Gap Payment Part 1; and (4) to provide for the payment of the "Implementation Fee," as defined herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Agency and Participant agree as follows: Extension of the Schedule of Performance. The DDA is hereby amended by changing all references to the "Schedule of Performance" and "Attachment No. 3" to the "Revised Schedule of Performance" and the "Revised Attachment No. 3." The "Revised Schedule of Performance" is attached hereto as Exhibit A, labeled "Revised Attachment No. 3" and ,t incorporated herein by this reference. The Participant hereby agrees to comply with all provisions of the Revised Schedule of Performance. 2. Project Budget. The Agency, in accordance with Section 202 of the OPA, hereby approves the Project Budget dated August 8 , 2005, a true and correct copy of which is on file in the office of the Agency Clerk, and incorporated herein by this reference. (See Attached) 3. Termination of OPA as to Montgomery Ward Parcel. The OPA is hereby terminated in its entirety as to the Montgomery Ward Parcel, including, without limitation, the Schedule of Feasibility Gap Payments, Part 1 and the Agency is not obligated to make any Agency reimbursement payments relating to the Montgomery Ward Parcel. Neither Participant nor Agency shall have any further obligations to the other party with respect to the Montgomery Ward Parcel. 4. Implementation Fee. Upon execution of this Agreement by Agency and its delivery to Participant, the Participant shall pay the total sum of One Million Five Hundred Thousand Dollars ($1,500,000) to the Agency or the City, as first directed in writing by the Agency's Executive Director, as consideration for the Agency entering into this First Implementation Agreement, including, without limitation, extension by the Agency of the Schedule of Performance, and as consideration for any potential adverse effects this Agreement may have on the City. 5. Approval of GMAC Financing. By execution of this Agreement, Agency shall be deemed to have provided its prior written approval pursuant to Section 411 of the OPA of the deeds of trust and other documents encumbering the Site to be provided to GMAC in connection with the proposed purchase of the Site in accordance with that certain Assignment and Assumption Agreement of even date herewith by and among Participant, Agency and Bella Terra Associates, LLC. 6. Binding on Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors, assignees, personal representatives, heirs and legatees of the parties hereto. 7. OPA in Full Force and Effect. Except as otherwise modified herein, the terms and conditions of the OPA shall remain unmodified and in full force and effect. In the event of any conflict between the terms of this Agreement and the OPA, the terms of this Agreement shall control. 8. Further Assurances. The parties agree to execute such other documents and to take such other action as may be reasonably necessary to further the purposes of this Agreement. 9. Date of this Agreement. The "Effective Date" of this Agreement shall be the date this Agreement is executed by the Agency. 10. Counterparts. This Agreement may be executed by each party on a separate signature page, and when the executed signature pages are combined with the balance of this Agreement, it shall constitute one single instrument. [remainder of page left intentionally blank] [signatures on following pages] "AGENCY" REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH Dated: August 8 , 2005 Exe utive Director ATTEST: Agency General Counsel APPROVED AS TO FORM: Agency Special Counsel KANE, BALLMER & BERKMAN [Signatures continue on following page] L "PARTICIPANT" HUNTINGTON CENTER ASSOCIATES, LLC By: Huntington Management Ent., LLC, a Delaware limited liability company, Its Manager By: BMLF/Huntington, LLC, a Delaware limited liability company, Its Manager Dated: August 8 , 2005 By: C- ,, 464n ZzrSlow, Trustee of the Bryan Ezralow 1994 Trust Its Manager Exhibit A REVISED SCHEDULE OF PERFORMANCE [behind this page] SCHEDULE OF PERFORMANCE (Revised August 8, 2005) Submission — GuarantyAgreement. Participant Prior to Agency's execution of this shall submit Guaranty Agreement to Agency Agreement. pursuant to Section 105.2 (b) of this Agreement. COMPLETED Submission — Original Letter of Credit. Participant shall submit Original Letter of Credit to Agency pursuant to Section 305 of this Agreement. Submission — Evidence of Financing. Participant shall submit to Agency for approval the evidence of financing referred to in Section 202 of this Agreement. Approval — Evidence of Financing_ Agency shall approve or disapprove evidence of financing. Submission — Project Budget. Participant shall submit to Agency for approval or disapproval a proposed Project Budget pursuant to Section 202 of this Agreement. Approval — Project Cost Budget. Agency shall approve or disapprove the proposed Project Budget. Submission — Applications for Demolition. Gradiniz and Excavation Permits. Participant shall submit to City for approval applications for demolition, grading and excavation permits and related documents. Entitlements and Approvals. Participant to obtain all entitlements and approvals necessary for. the redevelopment of the Site. No later than 30 days after the date of Agency's determination to Acquire Additional Properties by authorizing Agency staff to initiate negotiations to acquire such"properties, if any. COMPLETED No later than 180 days after the date of this Agreement. COMPLETED Within 30 days after receipt by Agency. COMPLETED Concurrently with submission of Evidence of Financing. COMPLETED Within 30 days after receipt of proposed Project Budget. COMPLETED No later than 180 days after the date of this Agreement. COMPLETED No later than 180 days after the date of this Agreement. COMPLETED Schedule of Performance 1 Commencement of Construction. Participant shall Within 210 days after the date of this Agreement commence the work and improvements required for for grading. Within 270 days after the date of this redevelopment of the site. Agreement for vertical improvements. COMPLETED Completion of Construction. Participant shall complete Not later than December 31, 2006 construction of all improvements. Certificate of Occupancy. Participant shall obtain a. Participant shall apply for certificate of certificate of occupancy from the City for the occupancy upon completion of construction redevelopment Site. and diligently prosecute in accordance with City requirements Release of Construction Covenants. Agency to execute Upon Participant's completion of redevelopment Release of Construction Covenants approving completion of the Site pursuant to this Agreement and of redevelopment pursuant to this Agreement and Participant's written request for a Release of terminating Guaranty Agreement. Construction Covenants. Operating Commencement Date. Participant's obligation to make Agency Participation Payments pursuant to Section 601 of this Agreement commences. Agency's obligation to make reimbursement payments to Participant pursuant to Attachment No. 7 commences. NOTES: The last to occur of either the date of issuance of a Certificate of Occupancy by the City for the redevelopment Site, or the opening for business to the general public of the first -quality shopping center required to be redeveloped be this Agreement. 1. Deadlines set forth in this Schedule of Performance are subject to the enforced delay provisions of Section 808 of the Agreement. 2. Extensions may be approved in writing by the Agency's Executive Director pursuant to the Agreement. 3. Descriptions of items of performance and deadlines in this Schedule of Performance are not intended to supercede more complete deceptions in the text of the Agreement; and in the event of any conflict between the text of the Agreement and this Schedule, the text of the Agreement shall govern. Schedule of Performance 2 i arc t vi i �a ors 7ohtn Miller TO... mhennessey@surfcity-hb.org Cc... mwise@jhsnyder. net; Imulvihill@surfcity-hb.org;bclemmons@seedmackall Bcc... Subject: Attachments: Mike, It is our understanding that J.h Snyder Company and Murray Kane have agreed that the sus project costs as referenced in the "First Implementation Agreement to the Disposition and Development Agreement', Paragraph 2. "Project Budget', by and between the Redevelopment Agency of the City of Huntington Beach and Huntington Center Associates, LLC is $160,000,000. It is also our understanding that all other terms and conditions as referenced in the OPA are unchanged. Please be advised that this amount has been accepted by Bella Terra Associates, LLC. DJM https://mail.djmcapital.com/exchange/jmiller/Drafts/?Cmd=new 8/8/2005 ASSIGNMENT AND ASSUMPTION AGREEMENT This Assignment and Assumption Agreement, dated as of August 8, 2005, is entered into by and among the REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body, corporate and politic ("Agency"), HUNTINGTON CENTER ASSOCIATES, LLC, a Delaware limited liability company ("Assignor") and BELLA TERRA ASSOCIATES, LLC, a Delaware limited liability company ("Assignee") with reference to the following facts: A. The Agency and Assignor entered into that certain Owner Participation Agreement dated October 2, 2000, as implemented by that certain First Implementation Agreement dated as of August 8, 2005 (collectively, the "OPA"). The OPA is hereby incorporated by this reference. Reference herein to the OPA shall include any and all attachments thereto. Any capitalized term not defined herein shall have the meaning ascribed to it in the OPA. B. The OPA pertains to the construction, development, operation and management of the Site, generally comprised of a retail shopping center formerly known as Huntington Center and currently known as Bella Terra. C. Assignor and DJM Acquisition Group, LLC, a Delaware limited liability company, Assignee's predecessor in interest, entered into that certain Purchase Agreement dated as of March 31, 2005 for the Site pursuant to which the Site shall be conveyed to Assignee. D. Assignor hereby desires to assign all of its rights and delegate all of its duties under the OPA and any and all related agreements and documents (collectively, the "Related Agreements") to Assignee and Assignee intends to assume all rights and obligations of Assignor thereunder. NOW, THEREFORE, the Agency, Assignor and Assignee hereby agree as follows: The OPA is and remains in full force and effect. 2. Assignor hereby assigns all of its right, title and interest in and to the OPA and any and all Related Agreements to Assignee and Assignee hereby accepts such assignment, and assumes all of the obligations of Assignor under the OPA, including but not limited to, all obligations related to the development of the Site as set forth therein, and any and all Related Agreements and agrees to be bound thereby in accordance with the terms thereof. Assignee shall assume and perform all executory obligations of Assignor pursuant to the OPA and any and all Related Agreements, without exception. 4. The Agency hereby consents to and approves the assumption of the OPA and any and all DADocuments and Settings\mulvihilTocal Settings\Temporary Intemet FNes\OLK3\Asst Agt (OPA)7 Ldoc 8-5-05 Related Agreements by Assignee. 5. The principal address of Assignee for purposes of the OPA and any and all Related Agreements is as follows: c/o DJM Capital Partners, Inc. 60 S. Market St., Suite 1120 San Jose, CA 95113 Att: D. John Miller 5. Approval -of this Assignment and Assumption Agreement by the Agency is expressly conditioned upon the full and complete execution of the "Construction Oversight Agreement" by and between Snyder Huntington Development, LLC, a California limited liability company and Assignor, in substantially the same form and substance as submitted to the Agency General Counsel's office on July 11, 2005. Any material modifications and/or amendments to the Construction Oversight Agreement shall be approved in writing by the Agency and such approval shall not be unreasonably withheld. 6. Approval of this Assignment and Assumption Agreement by the Agency is expressly conditioned upon the full and complete execution of the "Completion Guaranty" by and between Assignor and J.H. Snyder Company, a California corporation, in favor of Assignee, in substantially the same form and substance as submitted to the Agency General Counsel's office on July 11, 2005. Any material modifications and/or amendments to the Completion Guaranty shall be approved in writing by the Agency and such approval shall not be unreasonably withheld. 7. Assignee agrees to diligently enforce all of its rights and pursue all of its remedies pursuant to the Completion Guaranty. 8. Assignee acknowledges and agrees that: a. The Schedule of Feasibility Gap Payments, Part 1, attached to the OPA as Attachment No. 7 and applicable only if the Ward Parcel is part of the Site, is hereby null and void and the Agency has no reimbursement obligations to Assignee as contemplated therein; and b. Any reimbursement obligations required to be made by the Agency pursuant to the Schedule of Feasibility, Part 2, attached to the OPA as Attachment 7, shall be made to the Assignee as Participant, and in accordance with the terms of the OPA. 9. This Assignment and Assumption Agreement is made for the sole benefit and protection of the parties hereto, and their successors and assigns, and no other person or persons shall have any right of action or right to rely hereon. As this Assignment and Assumption Agreement D:\Documents and Settings\mulvihilTocal SettingsUemporary Intemet F1s\0LK3\Asst Agt (OPA)7Ldoc 8-5-05 contains all the terms and conditions agreed upon between the parties, no other agreement regarding the subject matter thereof, shall be deemed to exist or bind any party unless in writing and signed by the party to be charged. 10. This Assignment and Assumption Agreement may be executed in several duplicate originals, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and shall become effective upon execution by the parties, as indicated by the signatures below. The signature pages of one or more counterpart copies may be removed from such counterpart copies and all attached to the same copy of this Assignment and Assumption Agreement, which, with all attached signature pages, shall be deemed to be an original agreement. When fully executed, the date of this Assignment and Assumption Agreement shall be the later of the dates indicated below. 11. This Assignment and Assumption Agreement shall be governed by the laws of the State of California. 12. If any term or provision of this Assignment and Assumption Agreement, the deletion of which would not adversely affect the receipt of any material benefit by any party hereunder, shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Assignment and Assumption Agreement shall not be affected thereby and each other term and provision of this Assignment and Assumption Agreement shall be valid and enforceable to the fullest extent permitted by law. It is the intention of the parties hereto that in lieu of each clause or provision of this Assignment and Assumption Agreement that is illegal, invalid or unenforceable, there be added as a part of this Assignment and Assumption Agreement an enforceable clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible. 13. Time is expressly declared to be of the essence in this Assignment and Assumption Agreement. 14. No provision in this Assignment and Assumption Agreement is to be interpreted for or against either party because that party or its legal representatives drafted such provision. 15. The parties hereto hereby agree to execute such other documents and to take such other action as may be reasonably necessary to further the purposes of this Assignment and Assumption Agreement. 16. The parties hereto further represent and declare that they carefully read this Assignment and Assumption Agreement and know the contents thereof, and that they sign the same freely and - voluntarily. DADocuments and Settings\mulvihil\Local Settings\Temporary Intemet F&s\OLK3\Asst Agt (OPA)7l.doc 8-5-05 17. Each party hereto hereby represents that the person executing this Assignment and Assumption Agreement on behalf of said party has full authority to do so and to bind the party to perform pursuant to the terms and conditions of this Assignment and Assumption Agreement. 18. Neither the assignment which is the subject of this Agreement nor anything in this Agreement shall be deemed to relieve Assignor of its duties and obligations as "Participant" under the OPA. 19. After a Release of Construction Covenants has been issued for the Site, the Assignor may submit to the Agency an application for release of its duties and obligations as Participant under the OPA and the Agency agrees to diligently and in good faith review any such application. "AGENCY" REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH Dated: August 8 , 2005 Ex cutive Director ATTEST: Tcretary D AS TO FORM: Agency General Counsel WN qfl DADocuments and Settings\mulvihil\L.ocal Settings\Temporary Intemet F4es\OLK3\Asst Agt (OPA)71.doc 8-5-05 APPROVED AS TO FORM: Agency Special Counsel KANE, BALLMER & BERKMAN Dated: August 8 , 2005 "Assignor" HUNTINGTON CENTER ASSOCIATES, LLC By: Huntington Management Ent., LLC, a Delaware limited liability company, Its Manager By: BMLF/Huntington, LLC, a Delaware limited liability company, Its Mana2er-----) bryan tzralow, 1 rustee of the Bryan Ezralow 1994 Trust Its Manager "Assignee" BELLA TERRA ASSOCIATES, LLC By: Bella Terra Borrower, LLC, a Delaware limite company, Its member fP Dated: August 8, 2005 By: D. ohn Miller, President By: NU Verlin S ons, Independent Director D:\Documents and Settings\mulvihiRl-ocal Settingffemporary Intemet F5es\OLU3 Asst Agt (OPA)7Ldoc 8-5-05 ASSIGNMENT AND ASSUMPTION AGREEMENT This Assignment and Assumption Agreement, dated as of August 1, 2005 is entered into by and among the CITY OF HUNTINGTON BEACH, a California charter city ("City"), HUNTINGTON CENTER ASSOCIATES, LLC, a Delaware limited liability company ("Assignor") and BELLA TERRA ASSOCIATES, LLC ("Assignee"), a Delaware limited liability company, with reference to the following facts: A. The City and Assignor entered into that certain Operating Agreement for Huntington Center Parking Structure as of March 1, 2004, (the "Operating Agreement"). The Operating Agreement is hereby incorporated by this reference. Reference herein to the Operating Agreement shall include any and all exhibits thereto. Any capitalized term not defined herein shall have the meaning ascribed to it in the Operating Agreement. B. The Operating Agreement pertains to the maintenance and operation of a parking structure owned by the City and more particularly described therein, consistent with that certain Parking and Reciprocal Easement Agreement and Option to Purchase, dated as of March 1, 2004 (the "Parking Easement"). C. Assignor hereby desires to assign all of its rights and delegate all of its duties and obligations under the Operating Agreement and any and all related agreements (including the Parking Easement and the Funding and Construction Agreement by and between the City and Assignor dated as of March 1, 2004) (collectively, the "Related Agreements") to Assignee and Assignee intends to assume all rights and obligations of Assignor thereunder. NOW, THEREFORE, the City, Assignor and Assignee hereby agree as follows: Assignor hereby assigns all of its right, title and interest in and to the Operating Agreement and any and all Related Agreements to Assignee and Assignee hereby accepts such assignment, and assumes all of the obligations of Assignor under the Operating Agreement and any and all Related Agreements and agrees to be bound thereby in accordance with the terms thereof. 2. Assignee shall assume and perform all executory obligations of Assignor pursuant to the Operating Agreement and any and all Related Agreements, without exception. 3. The City hereby consents to and approves the assumption of the Operating Agreement and any and all Related Agreements by Assignee. 4. The principal address of Assignee for purposes of the Operating Agreement and any and all Related Agreements is as follows: 1 DADocuments and Settings\mulvihil\Local Settings\Temporary Internet Files\OLK3\Asst Agi (Operating Agreement-4).doc 7/14/05 c/o DJM Capital Partners, Inc. 60 S. Market St., Suite 1120 San Jose, CA 95113 Att: D. John Miller 5. Approval of this Assignment and Assumption Agreement by the. City is expressly conditioned upon the full and complete execution of the "Construction Oversight Agreement" by and between Snyder Huntington Development, LLC, a California limited liability company and Assignor, in substantially the same form and substance as submitted to the City Attorney's office on July 11, 2005. Any material modifications and/or amendments to the Construction Oversight Agreement shall be approved in writing by the City and such approval shall not be unreasonably withheld. 6. Approval of this Assignment and Assumption Agreement by the City is expressly conditioned upon the full and complete execution of the "Completion Guaranty" by and between Assignor and J.H. Snyder Company, a California corporation, in favor of Assignee, in substantially the same form and substance as submitted to the City's Attorney's office on July 11, 2005. Any material modifications and/or amendments to the Completion Guaranty shall be approved in writing by the City and such approval shall not be unreasonably withheld. 7. Assignee agrees to diligently enforce all of its rights and pursue all of its remedies pursuant to the Completion Guaranty. 8. Neither the assignment which is the subject of this Agreement nor anything in this Agreement shall be deemed to relieve Assignor of its duties and obligations as "Operator" under the Operating Agreement. 9. The Assignor may submit an application for release of its duties and obligations as Operator under the Operating Agreement to the City and the City agrees to diligently and in good faith review any such applications. 10. This Assignment and Assumption Agreement is made for the sole benefit and protection of the parties hereto, and their successors and assigns, and no other person or persons .shall have any right of action or right to rely hereon. As this Assignment and Assumption Agreement contains all the terms and conditions agreed upon between the parties, no other agreement regarding the subject matter thereof, shall be deemed to exist or bind any party unless in writing and signed by the.party to be charged. 11. This Assignment and Assumption Agreement may be executed in several duplicate originals, 2 DADocuments and Settings\mulvihil\Local Settings\Temporary Internet Files\OLK3\Asst Agt (Operating Agreernent4).doc 7/14/05 each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and shall become effective upon execution by the parties, as indicated by the signatures below. The signature pages of one or more counterpart copies may be removed from such counterpart copies and all attached to the same copy of this Assignment and Assumption Agreement, which, with all attached signature pages, shall be deemed to be an original agreement. When fully executed, the date of this Assignment and Assumption Agreement shall be the later of the dates indicated below. 12. This Assignment and Assumption Agreement shall be governed by the laws of the State of California. 13. If any term or provision of this Assignment and Assumption Agreement, the deletion of which would not adversely affect the receipt of any material benefit by any party hereunder, shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Assignment and Assumption Agreement shall not be affected thereby and each other term and provision of this Assignment and Assumption Agreement shall be valid and enforceable to the fullest extent permitted by law. It is the intention of the parties hereto that in lieu of each clause or provision of this Assignment and Assumption Agreement that is illegal, invalid or unenforceable, there be added as a part of this Assignment and Assumption. Agreement an enforceable clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible. 14. Time is expressly declared to be of the essence in this Assignment and Assumption Agreement. 15. No provision in this Assignment and Assumption Agreement is to be interpreted for or against either party because that party or its legal representatives drafted such provision. 16. The parties hereto hereby agree to execute such other documents and to take such other action as may be reasonably necessary to further the purposes of this Assignment and Assumption Agreement. IT The parties hereto further represent and declare that they carefully read this Assignment and Assumption Agreement and know the contents thereof, and that they sign the same freely and voluntarily. 18. Each party hereto hereby represents that the person executing this Assignment and Assumption Agreement on behalf of said party has full authority to do so and to bind the party to perform pursuant to the terms and conditions of this Assignment and Assumption Agreement. 3 DADocuments and Settings\mulvihil\Local Settings\Temporary Internet Files\OLK3Wsst Agt (Operating Agreement4).doc 7/14/05 [Signatures on following pages] 4 DADocuments and Settings\mulvihil\Local Settings\Temporary Internet Files\OLK3\Asst Agt (Operating Agreement4).doc 7/14/05 "CITY" THE CITY OF HUNTINGTON BEACH Dated: August 8 , 2005 ayu L/ ATTEST: City Attorney APPROVED AS TO FORM: KANE, BALLMER & BERKMAN City Special Counsel [Signatures continue on following page] _ 5 DADocuments and Settings\mulvihil\L.ocal Settings\Temporary Intemet Files\OLKRAsst Agt (Operating Agreement4).doc 7/ l4/05 Dated: August 8 , 2005 Dated: August 8 , 2005 "Assignor" HUNTINGTON CENTER ASSOCIATES, LLC By: Huntington Management Ent., LLC, a Delaware limited liability company, Its Manager By: BMLF/Huntington, LLC, a Delaware limited liability company, Its Manager B Bryan Ezralow, Trustee of the Bryan Ezralow 1994 Trust Its Manager "Assignee" BELLA TERRA ASSOCIATES, LLC By: Bella Terra Borrower, LLC, a Delaware limite mpany, Its member B: ohn Miller, President By: Verlin Silnm ns, Its 1t�pendent Director 6 DADocuments and Settings\mulvihil\Local Settings\Temporary Internet Files\OLK3\Asst Agt (Operating Agreement-4).doc 7/14/05 V ESTOPPEL CERTIFICATE AND REQUEST FOR NOTICE (Redevelopment Agency of the City of Huntington Beach; Owner Participation Agreement) GMAC Commercial Mortgage Corporation, and its successors and assigns ("Lender") c/o Dechert LLP 1717 Arch Street 4000 Bell Atlantic Tower Philadelphia, PA 19103 Attention: Richard D. Jones, Esq. Bella Terra Associates, LLC, and its successors and assigns ("Buyer") c/o DJM Capital Partners 60 South Market Street Suite 1120 San Jose, CA 95113 Attention: D. John Miller Re: The Owner Participation Agreement ("OPA") by and among the Redevelopment Agency of the City of Huntington Beach, ("Agency"), and Huntington Center Associates, LLC, a Delaware limited liability company ("Participant"), dated effective as of October 2, 2000. Property: That certain real property located in Huntington Beach, California, formerly known as the Huntington Center, and now commonly known as Bella Terra Mall. Mesdames/Gentlemen: Capitalized terms used but not defined herein shall have the meanings set forth in the OPA. The undersigned, being an authorized representative of the Agency, certifies and agrees as follows for your reliance: 1. The OPA is in full force and effect and constitutes a legal, valid and binding obligation of the parties thereto. 2. The OPA has not been amended or modified either orally or in writing, except as follows: (if any modifications or amendments exist, describe here or state "none"). The OPA has been implemented by that certain First Implementation Amement dated as of Au us�t 8, 2005. 3. There are no current uncured defaults under the OPA, except as follows: (if no defaults, state "none"; otherwise describe the nature and monetary amount, if any, of any such defaults) None. 4. Participant is current in the performance of its obligations under the OPA, and, as of the date hereof, there are no conditions or events which, with the passage of time or giving of notice or both, would constitute defaults under the OPA, except as follows: (if no defaults, state 10783086.2.13USINESS "none"; otherwise describe the nature and monetary amount, if any, of any such defaults). None. Intentionally deleted. 5. There are no other Additional Properties, except as follows: (if no such Additional Properties, state "none"; otherwise. describe such other Additional Properties) None. 6. Agency has reviewed the formation and status of Bella Terra M Associates, LLC and acknowledges that it constitutes a "Controlled Affiliate" of Buyer under the terms of the OPA. 7. Agency has approved the plans submitted for the development of the Site as provided in the OPA. To the best of Agency's knowledge, such on -going construction of the Site is in accordance with the approved plans. The Agency understands that Buyer will rely upon this Estoppel Certificate in connection with its purchase of the Property and that Lender will rely upon this Estoppel Certificate in connection with a loan to be made by Lender to Buyer with respect to the Property. The Agency represents and warrants that the information contained in this Estoppel Certificate is true and correct. This Estoppel Certificate will inure to the benefit of Buyer, Lender, and their respective successors and assigns, and shall be binding on Agency and its legal representatives, successors, and assigns. Lender hereby requests notice in the event of default(s) pursuant to Article 700 of the OPA, and Agency hereby agrees that it will not exercise any remedies under the OPA without first (1) providing Lender with written notice of the alleged Participant default at the address provided below and (2) the opportunity to cure such default within the time frame set forth in the OPA for such cure. Agency acknowledges that Lender is not obligated to cure any Participant default, but if Lender elects to do so, Agency agrees to accept such cure by Lender as that of Participant under the OPA and will not exercise any right or remedy under the OPA for a Participant default if cured by Lender as provided herein. Address for notices to Lender: With a required copy to: GMAC Commercial Mortgage Corporation 200 Witmer Road Horsham, PA 19044 Attn.: Servicing Accounting - Manager Fax: 215-328-3478 GMAC Commercial Mortgage Corporation 200 Witmer Road Horsham, PA 19044 Attn.: PLG Asset Manager Fax: 215-328-1190 2 G:\Mulvihill\Misc\Be1laTerra\Estoppel (OPA 3-9-05).final.DOC With a copy to: Dechert LLP 4000 Bell Atlantic Tower 1717 Arch Street Philadelphia, PA 19103-2793 Attn: Richard D. Jones (Ref. No. 354455) Fax: 215-994-2222 IN WITNESS WHEREOF, the undersigned has executed this Estoppel Certificate at the City of Huntington Beach, State of California, on the date set forth below. Dated: &SUo to , 2005 REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, By: Print Name: - Penelope Culbreth-Graft Its: Executive Director Address: Redevelopment Agency of the City of Huntington Beach City Hall 2000 Main Street Huntington Beach, California 92648 Attn: Economic Development Director G:\Mulvihill\Misc\Be1laTerra\Estoppel (OPA 8-9-05).final.DOC ESTOPPEL CERTIFICATE AND REQUEST FOR NOTICE (City of Huntington Beach; Parking Agreements) GMAC Commercial Mortgage Corporation, and its successors and assigns ("Lender") c/o Dechert LLP 1717 Arch Street 4000 Bell Atlantic Tower Philadelphia, PA 19103 Attention: Richard D. Jones, Esq. Bella Terra Associates, LLC, and its successors and assigns ("Buyer") c/o DJM Capital Partners 60 South Market Street Suite 1120 San Jose, CA 95113 Attention: D. John Miller Re: Parking and Reciprocal Easement Agreement and Option to Purchase (the "PREA") between the City of Huntington Beach, a California charter city ("City"), and Huntington Center Associates, LLC, a Delaware limited liability company ("Developer"), dated effective,as of March 1, 2004, recorded on May 31, 2005, as Instrument No. 2005000414926 in the Official Records of Orange County, California; Funding and Construction Agreement between City and Developer dated effective as of March 1, 2004 (the "Funding Agreement"); and Operating Agreement for Huntington Center Parking Structure between City and Developer dated effective as of March 1, 2004 (the "Operating Agreement", and, collectively with the PREA and the Funding Agreement, the "Parking Agreements"). Property: That certain real property located in Huntington Beach, California, and formerly known as the Huntington Center, now commonly known as Bella Terra Mall. Mesdames/Gentlemen: The undersigned, being an authorized representative of the City, certifies and agrees as follows for your reliance: 1. The Parking Agreements are in full force and effect and constitute legal, valid and binding obligations of the parties thereto. 2. The Parking Agreements have not been amended or modified either orally or in writing, except as follows: (if any modifications or amendments exist, describe here or state "none"). None. 3. There are no current uncured defaults under the Parking Agreements, except as follows: (if no defaults, state "none"; otherwise describe the nature and monetary amount, if any, of any such defaults). None. e 4. Developer is current in the performance of its obligations under the Parking Agreements, and, there are no conditions or events which, with the passage of time or giving of notice or both, would constitute defaults under the Parking Agreements, except as follows: (if no defaults, state "none"; otherwise describe the nature and monetary amount, if any, of any such defaults). None. 5. Intentionally deleted. The City understands that Buyer will rely upon this Estoppel Certificate in connection with its purchase of the Property and that Lender will rely upon this Estoppel Certificate in connection with a loan to be made by Lender to Buyer with respect to the Property. The City represents and warrants that the information contained in this Estoppel Certificate is true and correct. This Estoppel Certificate will inure to the benefit of Buyer, Lender, and their respective successors and assigns, and shall be binding on the City and its legal representatives, successors, and assigns. Lender hereby requests notice in the event of default(s) in any of the Parking Agreements, and City hereby agrees that it will not exercise any remedies under any of the Parking Agreements without first (1) providing Lender with written notice of the alleged Developer default at the address provided below and (2) the opportunity to cure such default within the time frame set forth in such Parking Agreement for such cure. City acknowledges that Lender is not obligated to cure any Developer default, but if Lender elects to do so, City agrees to accept such cure by Lender as that of Developer under such Parking Agreement and will not exercise any right or remedy under such Parking Agreement for a Developer default if cured by Lender as provided herein. Address for notices to Lender: With a required copy to: GMAC Commercial Mortgage Corporation 200 Witmer Road Horsham, PA 19044 Attn.: Servicing Accounting - Manager Fax: 215-328-3478 GMAC Commercial Mortgage Corporation 200 Witmer Road Horsham, PA 19044 Attn.: PLG Asset Manager Fax: 215-328-1190 2 With a copy to: Dechert LLP 4000 Bell Atlantic Tower 1717 Arch Street Philadelphia, PA 19103-2793 Attn: Richard D. Jones (Ref. No. 354455) Fax: 215-994-2222 IN WITNESS WHEREOF, the undersigned has executed this Estoppel Certificate at the City of Huntington Beach, State of California, on the date set forth below. Dated: AvyNVt tb , 2005 CITY OF HUNTINGTON BEACH, a California charter city By: Print Name: Penelope Culbreth-Graft Its: City Administrator Address: 2000 Main Street Huntington Beach, California 92648 Attn: Leonie Mulvihill, Esq. . Deputy City Attorney STEWART TITLE OF CALIFORNIA, INC. National Commercial Closing Division 505 No. Brand Blvd., Suite 800A, Glendale, CA 91203 (818) 547-2030 www.stewarttitlela.com August 17, 2005 Redevelopment Agency of the City of Huntington Beach -via Federal Express- 2000 Main Street - City Hall Huntington Beach, CA 92648 Attn: Leonie Mulvihill, Deputy City Attorney Re: Escrow # 05110249 Property Address: Bella Terra Shopping Center Huntington Beach, CA In connection with the above referenced escrow, enclosed herewith please find the following: * Original recorded Agreement Containing Covenants Affecting Real Property * Copy of Completion Guaranty NOTE: The Construction Oversight Agreement has not been deposited with our office. Upon our receipt of same, a copy will be forwarded to you. Should you have any comments, questions, or concerns, please do not hesita,�e to contact the undersigned. Si`pc0$e.Yy, J4tteLoaVzaCoercial ow Officer National TiServices Direct Phon818) 547-2030, EXT 212 fax: (818) 546-1374 jloaiza@stewart.com InN0z I ' W1IWtz This Document was electronically recorded by Stewart Title Glendale OFFICIAL BUSINESS Document entitled to free recording per Government Code Section 6103 Recording Requested By and When Recorded Mail to: Redevelopment Agency of the City of Huntington Beach City Hall 2000 Main Street Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder 11111111111111111 111111111111111111111111111111111111111111111 45.00 2005000643199 04:00pm 08/16/05 117 48 Al2 14 0.00 0.00 0.00 0.00 39.00 0.00 0.00 0.00 Huntington Beach, California 92648 n1407,qn3o SPACE ABOVE THIS LINE FOR RECORDING USE FF KC IAL AGREEMENT CONTAINING COVENANTS Doc-mft :wit' AA AFFECTING REAL PROPERTY 51 J)l "This! AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY (this "Covenant Agreement,) is made and entered into by and between the REDEVELOPMENT AGENCY'OF'--THE-'C'IT 6� HUNTINGTON BEACH, a public body, corporate and politic (the 11 of ) afid HUNTINGTON CENTER ASSOCIATES, LLC, a Delaware limited liability C any ( the ','Owner") with reference to the following: A Owner Mas fee title to that certain real property, which is more particularly described in,th6l6gal description attached hereto as Exhibit A and incorporated herein by this reference (the 71 )1 i0 it I 1VJaL` L�U%N,' Pf6pert ") y 21 lvu IL, rig ,oI i* 13eac �1 i i 9648 .,,y,,M1-is--subj*-e,ct--l-to-�,Ah-�,T dev rF , eIopm-ent,p1aT,,-�Pr the"Huntington -Beach Redevelopment Project, which was approved and adopted by Ordinance No. 2743 of the City Council of he-,TBeach-,:,qnFVoyf ty �,mber,T26-,1,984,-,,Ia.nd,,,merged with certain other T "!; %CAJ V 11 �� '", I N I ki redevelopment opIt Tp0 ic"Fd1ii. 1. iFkN67"SI43 on December 16, 1996 eveI6FtTie_nf f6 Pi-jR_ t&ffi the,,Hii'n'tiiigt-oii'B'dd&.-kdd t (iF6 fg6d Redevelopment Project"). The kddevelIopim�%-ej ntPlanXon! I,tI h"eA'/Merg-e-k dReNJdevL_elopmen�-,,1Prgieg.,tf-(thee`"f'RedeyploLpWeJp_tr,P_lan"),-. incort)orated,/,herein.by,reference andmaqe -herein .,-, ,,a.part hereof as,though, ftilly set forth 4- r,TC"0b-N a pubfic odv, rs ,,pursuant to, that ,certain` Owner Participation Agreement by`arid.betweenithe,Agency andlOwner ,dated I- it uv;lavvol�,', 1,T!,krVCZ r; . "t, October 2, 2000 (the "OPA"), which is a public rec6r""d on file at=the'offices of the Agency d is'incorporated herein by this reference. The .......................... in t -h- a real property a' .,, "" 1 C,ZT;rj,,Irt�aIv P't-"d............................. TUT,lup'l y, W3'Kl,Slropc'dk c he�eto as ar,-.6, UY, 1� rill, 1-atr�d hi;�,C-irl b" �",D L'zAlrcapitalized terms in this Covenant Agreement shall have th6'in'��eanings ascribed to` diem hffi'_'OPA iinfesgqrididt6d-lb the contrary herein. i e, E;IK XP,k.Xj�% "UN J tT.,L. 2743) K" greoAotqA*inj,1 iqMerfant§�4 Ceru-zia I 1� � I". WA?rqp0q .... ....... Tf Z .1f'ad. R IM, ItJl 11 N'l 'L 1 1 '4 Z-3. l! •P�_l 'y, 1-.Z,'f 'r, . , f, . Agency and Owner agree as follows: § 100 Uses of Property Owner hereby covenants and agrees on behalf of itself and any successors and assigns in the Property or any portion thereof or any improvements thereon or any interest therein that Owner, such successors and assigns shall: a. Develop, construct, renovate and rehabilitate improvements on the Property solely in accordance with this Covenant Agreement, the OPA, the Redevelopment Plan, and plans approved by the City. b. Devote the Property, or cause the Property to be devoted, solely to use as a first - quality regional shopping center in accordance with this Covenant Agreement, the OPA, the Redevelopment Plan, and plans approved by the City, until November 26, 2034. C. Beginning no later than the Operating Commencement Date, cause to be Operated on the Property until November 26, 2034, a first -quality regional shopping center meeting the design and architectural standards of that certain Specific Plan initially adopted by Resolution No. 2000-68 on July 5, 2000. All floor area shall be Operated by retail stores of a type customarily located at first -quality regional shopping centers in Southern California. If any tenant over fifty thousand square feet (50,000) of gross leaseable area ("Major") ceases to Operate within the effective period ofthe operating covenants, Owner shall request the written approval of the Agency for the replacement of the Major with one or more proposed new tenants of comparable first - quality and trade name at the earliest practicable date, but in no event more than ninety (90) days after the Major to be replaced provides written notice to Owner of its intent to cease to Operate on the Property. Within thirty (30) days after receipt of Owner's request for approval, Agency shall respond in writing by stating what further information, if any, Agency reasonably requires in order to determine whether or not to approve the replacement tenant. Owner shall promptly furnish to Agency such further information as may be reasonably requested. Owner's request for approval shall be deemed complete thirty (30) days after Agency's receipt thereof, if no timely response requesting further information is given to Owner, or, if such a timely response requesting further information is received by Owner, on the date that Owner delivers such additional information to Agency, provided that such additional information is responsive to Agency's request. Agency shall approve or disapprove the proposed replacement tenant in the Agency's reasonable discretion, and shall provide Owner with written notice of its decision within thirty (30) days after Owner's request for such approval is accepted as complete or deemed complete. In deciding whether to approve a proposed replacement tenant, the Agency may consider, among other factors, the level of quality and the sales generation ability of the proposed replacement tenant and trade name. If Agency shall disapprove a proposed replacement tenant, Agency shall do so by written notice to Owner stating Agreement Containing Covenants Affecting Real Property the reasons for such approval. "Operate," as used in this Agreement, means open to the general public for business during commercially reasonable business hours, except when temporarily not open for business by reason of such reasonable interruptions as may be customary and incidental to the conduct of business at first -quality regional shopping centers in Southern California. d. Maintain the Property, or cause the Property to be maintained, in accordance with Section 101 of this Covenant Agreement. e. Pay when due all real estate taxes and as assessed and levied on the Property and any improvements thereon and refrain from appealing, challenging or contesting in any manner the validity or amount of any tax assessment, encumbrance or lien on the Property; provided, however, that such prohibition shall not apply to an appeal, challenge or contesting of an erroneous initial assessment for property tax purposes of the Property in the fiscal year of the completion of the improvements to be constructed and/or renovated pursuant to this Agreement. f. Not discriminate upon the basis of race, color, creed, religion, sex, age, marital status, handicap, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any improvements erected or to be erected thereon, or any part thereof. g. Include in all leases and subleases appropriate provisions requiring all lessees and sublessees to comply with and be bound by the applicable provisions of this Covenant Agreement. h. Pay when due the Agency Participation Payment in accordance with Section 601 of the OPA. i. Continue to perform all ongoing obligations of Participant under the OPA, including but not limited to those under Sections 304, 305 and 406 of the OPA. § 101. Maintenance of the Property a. Owner shall maintain, repair and operate the Property and all improvements constructed or to be constructed thereon (including landscaping, lighting and signage), or cause the Property and all such improvements to be maintained, in a first quality condition, free of debris, waste and graffiti, and in compliance with the terms of the Redevelopment Plan, the City of Huntington Beach Municipal Code, and the following: (1) All improvements on the Property shall be maintained in good condition in accordance with the custom and practice generally applicable to comparable first quality shopping centers in Orange County, and in conformance and compliance with all plans, drawings and related documents approved by the Agreement Containing Covenants Affecting Real Property Agency pursuant to the OPA, all conditions of approval of land use entitlements adopted by the City or the Planning Commission, including painting and cleaning of all exterior surfaces of all private improvements and public improvements to the curbline. (2) Landscape maintenance shall include, without limitation, watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning, trimming and shaping of trees and shrubs to maintain a natural and healthy appearance, road visibility, and irrigation coverage; replacement, as needed, of all plant materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking for support of trees. (3) Clean-up maintenance shall include, without limitation, maintenance of all sidewalks, paths and other paved areas in a clean and weed -free condition; maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or unsightly; removal of all trash, litter and other debris from improvements and landscaping; clearance and cleaning of all areas maintained prior to the end of each day on which maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed of by maintenance workers. b. If the Agency gives written notice to Owner that the maintenance or condition of the Property or any portion thereof or any improvements thereon does not comply with the OPA and this Covenant Agreement and such notice describes the deficiencies, Owner shall correct, remedy or cure the deficiency within thirty (30) days following the submission of such notice, unless the notice states that the deficiency is an urgent matter relating to public health and safety in which case Owner shall cure the deficiency with all due diligence and shall complete the cure at the earliest possible time but in no even more than forty-eight (48) hours following the submission of the notice. In the event Owner fails to maintain the Property or any portion thereof or any improvements thereon in accordance with the OPA and this Covenant Agreement and fails to cure any deficiencies within the applicable period described above, the Agency shall have, in addition to any other rights and remedies hereunder, the right to maintain the Property and the improvements thereon, or portion thereof, or to contract for the correction of any deficiencies, and Owner shall be responsible for payment of all such costs reasonably incurred by the Agency. C. The Owner shall not use or permit the use of the Property in violation of (i) the Specific Plan and applicable zoning laws as they now exist or as they may hereafter be amended from time to time; or (ii) the Redevelopment Plan for the Project, as it now exists or, subject to Section 102 of the OPA, as it may hereafter be amended from time to time. Agreement Containing Covenants Affecting Real Property § 102. Obligation to Refrain from Discrimination Owner hereby covenants and agrees on behalf of itself and any successors and assigns in the Property or any portion thereof or any improvements thereon or any interest therein, that there shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, and the Owner (itself or any person claiming under or through it) shall not establish or permit any such practice or 'practices of discrimination, or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the Property, or any portion thereof. § 103. Form of Nondiscrimination and Nonseg_regation Clauses The Owner shall refrain from restricting the rental, sale or lease of the Property, or any portion thereof, on the basis of sex, marital status, race, color, religion, creed, ancestry or national origin of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: a. In deeds: "The grantee herein covenants by and for himself, his heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." b. In leases: "The lessee herein covenants by and for himself, his heirs, executors, administrators and assigns, and all persons claiming under or through him, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry, in the leasing, subleasing, transferring, use, or enjoyment of the land herein leased nor shall the lessee himself, or any person claiming under or through him establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy, of tenants, lessees, sublessees, subtenants or vendees in the land herein leased." C. In contracts: "There shall be no discrimination against or segregation of, any person, or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee himself or any person claiming under or through him, establish or permit any such practice or practices of Agreement Containing Covenants Affecting Real Property discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land." § 104. No Transfers No sale, conveyance, assignment, leasing or other transfer of any kind of any interest in the Property or any portion thereof or any improvements thereon, or any change in the ownership of Owner or its successors or assigns shall be permitted prior to twenty (20) years after the Operating Commencement Date, except as authorized by the express terms of the OPA. § 105. BindingEffect ffect All obligations of "Owner" under this Covenant Agreement (and all of the terms, covenants and conditions of this Covenant Agreement) shall be binding upon Owner, its successors and assigns and every successor in interest of the Property or any portion thereof or any interest therein, jointly and severally, for the benefit and in favor of the Agency, its successors and assigns, and the City of Huntington Beach. All rights of "Owner" under this Covenant Agreement shall inure to the benefit of Owner and its permitted successors and assigns. § 106. Effect and Duration of Covenants The covenants contained in Sections 100 and 101 of this Covenant Agreement shall remain in effect until November 26, 2034. The covenants against discrimination shall remain in perpetuity. All other covenants shall remain in effect unless and until they expire in accordance with the express terms thereof. § 107. No Merger This Covenant Agreement shall not merge into any other agreement between Agency and Owner. § 108. Liens of Mortgages and Deeds of Trust Breach of any of the covenants, conditions, restrictions, or reservations contained in this Covenant Agreement shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value as to the Property, whether or not said mortgage or deed of trust is subordinated to this Covenant Agreement, but unless otherwise herein provided, the terms, conditions, covenants, restrictions and reservations of this Covenant Agreement shall be binding and effective against the holder of such mortgage or deed of trust and any owner of the Property, or any part thereof, whose title thereto is acquired by foreclosure, trustee's sale, or otherwise. § 109. Severance If any provision of this Covenant Agreement is determined by a court of competent jurisdiction to be illegal, invalid or enforceable, such provision will be deemed to be severed and Agreement Containing Covenants Affecting Real Property 6 deleted from the Covenant Agreement as a whole and neither such provision, nor its severance and deletion shall in any way affect the validity of the remaining provisions of this Covenant Agreement. IN WITNESS WHEREOF, the Agency and Owner have caused this instrument to be executed on their behalf by their respective officers thereunto duly authorized. Dated: U , 2005 ATTEST: Age Clerk REVIEWED AND APPROVED: Executi4 Director APPROVED AS TO FORM: Kane, Ballmer & Berkman Agency Special Counsel "Agency" REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By: APPROVED AS TO FORM: VV1' T�gje�ncy General Coun 1 �g10n ZD AND APPROVED: Actin Director of Economic Develo ent Agreement Containing Covenants Affecting Real Property "Owner" HUNTINGTON CENTER ASSOCIATES, LLC, a Delaware limited liability company By: Huntington Management Ent., LLC, A Delaware limited liability company, Its Manager By: BMLF/Huntington, LLC, A Delaware limited liability company, Its Manager Dated: , 2005 B*y: ralow, Trustee of the Bryan Ezralow 1994 Trust Its Manager kAcg\hb\center\covs 1.5(execution) Agreement Containing Covenants Affecting Real Property STATE OF CALIFORNIA ) ss. COUNTY OF`OS ) On J, 4LLt 200 `i before me,�� &?/#44 G personally appeared Y41/AJ Fe .4 0-,, , personally known to me (()T-- prove4 to -Me-eff-the basis to be the person(, whose name64 is/ar< subscribed to the within instrument and acknowledged to me that he/oWt executed the same in his/l l,oi -authorized capacity(i ), and that by his/IW/tkir signatureW on the instrument the person( or the entity upon behalf of which the person�+acted, executed the instrument. Signatt STATE OF CALIFORNIA ) ss. COUNTY OF JUAN CARLOS HERNANDEZ Commission # 1380176 Z .� Notary Public _ California Los Angeles County My Comm. Expires Oct 15, 2006 before me, &)'ef ? , , personally known to me. of to be the person(.&4 whose name(4 is/am subscribed to the within instrument and acknowledged to me that to/sheAhey executed the same in his/herMi r authorized capacity4es , and that by lis/her4heir signature(&s on the instrument the person4 or the entity upon behalf of which the person(&) -acted, executed the instrument. WITN my hand and official seal. Signature K. COPELAND I U COMM. #1409904 U@—.,MY NOTARY PUBLIC - CALIFORNIA 0ORANGE COUNTY n COMM. EXPIRES APRIL 8, 2007 EXHIBIT A LEGAL DESCRIPTION [Behind this page] Exhibit A Legal Description THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, DESCRIBED AS FOLLOWS - PARCEL A: PARCELS 2 THROUGH 9, INCLUSIVE, Of PARCEL MAP NO, 86-200, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA AS PER MAP RECORDED IN BOOK 255 PAGES 40 THROUGH 45, INCLUSIVE, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY_ EXCEPTTHOSE PORTIONS OF SAID PARCELS 4 AND 8 CONVEYED TO THE CITY OF HUNTINGTON REACH, A MUNICIPAL CORPORATION, BY DEED RECORDED MAY 1, 1991 AS INSTRUMENT NO. 91-209426 OF OFFICIAL RECORDS. ALSO EXCEPT THAT PORTION THEREOF LYING BELOW A DEPTH OF 500 FEET, MEASURED FROM THE SURFACE Of SAID LAND_ ALSOEXCEPT FROM PARCELS 4,5,6,7,8 AND A PORTION OF PARCEL 2 AN UNDIVIDED 55% INTEREST IN ALL THE LAND LYING MORE THAN FIVE HUNDRED (500) FEET BELOW THE SURFACE, BUT NONE OF THE LAND LYING ABOVE A DEPTH Of FIVE ffUNDRFD (500) FEET BELOW THE SURFACF OF THE LANDS WITH NO RIGHT OF SURFACE ACCESS OR USE Of THE LANDS LYING MORE THAN FIVE HUNDRED (500) FEET BELOW THE SURFACE, HEREINAFTER REFERRED TO AS "SAID LAND". FOR THE PURPOSES OF EXPLORING AND PROSPECTING FOR (BY GEOLOGICAL, GEOPHYSICAL, AND ALL OTHER MEANS WHETHER NOW KNOWN OR NOT), DRILLING FOR, PRODUCING, SAVINGS, TAKING AND OWNING OIL, GAS, ASPHALTUM, AND ALL OTHER MU%MRALS, WHETHER SIMILAR OR DISSIMILAR TO THOSE HEREIN SPECIFIED AND INCLUDING FISSIONABLE MATERIALS COLLECTIVELY HEREINAFTER REFERRED TO AS "SAID SUBSTANCES," IN, UNDER OR THAT MAY BE PRODUCED FROM SAID LAND, TOGETHER WITH ALL RIGHTS, PRIVILEGES AND EASEMENTS USEFUL OR CONVENIENT FOR OPERATIONS IN SAID LAND, IN ADJACENT OR CONTIGUOUS LANDS, AND IN OTHER LANDS IN THE SAME VICINITY, INCLUDING, BUT NOT LIMITED TO, (1) SUBSURFACE RIGHTS OF WAY FOR DRILLING, REPAIRING, RE - DRILLING, DEEPENING, MAINTAINING, OPERATING, ABANDONING, REWORKING AND REMOVING WELLS TO, IN, INTO AND THROUGH SAID LAND,- (2) THE RIGHT TO CONDUCT OPERATIONS BY METHODS NOW KNOWN OR UNKNOWN WHICH .AID REASONABLY DESIGNED TO BENEFIT OR FACILITATE THE DRILLING FOR, OR PRODUCTION OF, SAID SUBSTANCES FROM SAID LAND; (3) THE UNRESTRICTED AND EXCLUSIVE RIGHT, POWER AND AUT14ORlTY TO PRODUCE SAID SUBSTANCES BENEATH OR RECOVERABLE FROM SAID LAND, AND TO EXERCISE ALL OTHER RIGHTS AND PRIVILEGES HEREIN SET FORTH BY MEANS OF ANY WELL OR WELLS WHICH ARE SLANT DRILLED FROM SURFACE DRILL SITES LOCATED ON SUCH OTHER LANDS AND THE PRODUCING INTERVALS OF WHICH ARE BOTTOMED IN SAID LAND AND (4) THE RIGHT TO DRILL A WELL OR WELLS OR USE AI\R,/ EXISTING WELLS, TO, IN, INTO OR THROUGH SAID PORTION OF SAID LAND, FOR THE PURPOSE OF fNIECTING INTO SAID PORTION OF SAID LAND, OR INTO OTHER LANDS, OIL, GAS, AIR, WATER OR OTHER LIQUID OR GASEOUS SUBSTANCES, NCLUDTNG THE RIGHT, FROM TIME TO "TIME TO IGNITE OR OTHERWISE ACTIVATE ANY OR ALL OF SUCH SUBSTANCES SO INJECTED OR ANY OR ALL OF SAID MINERALS AND MATERIALS DESCRIBED HEREIN WITHIN SAID PORTION OF SAID LAND OR OTHER LANDS, RESERVED IN DEED RECORDED APRIL 4, 1986 AS INSTRUMENT NO.86-136183 OF OFFICIAL RECORDS AND RE -RECORDED AUGUST 13, 1985 AS INSTRUMENT NO.86-360236 OF OFFICIAL RECORDS_ PART ONE: N ON-EXCLUSrvT EASEMENTS FOR THE INSTALLATION, OPERATION, MAINTENANCE, REPAIR, RELOCATION AND REMOVAL OF SEWERS (INCLUDING UNDERGROUND STORM SEWER), WATER AND GAS MAINS, ELECTRICAL POWER LINES, TELEPHONE LINES AND OTI3ER UTILITY LINES, ALL AS MORE PARTICULARLY DEFINED AND DESCRIBED IN THE CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT AGREEMENT RECORDED AUGUST 4, 1965 IN BOOK 7617 PAGE 539, AS AMENDED BY INSTRUMENTS RECORDED IN BOOK 11087 PAGE 1770, IN BOOK 11091 AND 983 AND AS INSTRUMENT NO. 87-406989, ALL OF OFFICIAL RFCORDS_ PART TWO: EASEMENTS FOR INGRESS AND EGRESS FOR THE PASSAGE AND PARKING OF VEHICLES AND THE PASSAGE AND ACCOMMODATION OF PFDFSTRiANS, ALL AS MORE PARTICULARLY DEFINED AND DESCRIBED IN SECTION 3 (H) OF AMEND NO.2 TO CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT AGREEMENT RECORDED 3UL.Y 17, 1987 AS INSTRUMENT NO. 87-406989, OF OFFICIAL RECORDS. PARCEL C: AN EASEMENT FOR THE CONSTRUCTION AND MAINTENANCL, OF A BOX CULVERT AND RELATED IMPROVEMENTS, AND FOR PEDESTRIAN AND VEHICULAR INGRESS, EGRESS AND PARKING OVER A STRIP OF LAND LOCATED BETWEEN THE 150 FOOT WIDE SOUTHERN CALIFORNIA EDISON RIGHT OF WAY AND CENTER DRIVE, ALL AS MORE PARTICULARLY DEFINED AND DESCRIBED IN THE EASEMENT AND MAINTENANCE AGREEMENT RECORDED SEPTEMBER 18, 1987 AS INSTRUMENT NO.87-528707, OF OFFICIAL RECORDS. PARCEL D- THE NORT14 150 FEET OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 14, TOVrNSHXP 5 SOUTH RANGE 11 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA- EXCEPT THAT PORTION LYING EAST OF THE WEST LINE OF ROUTE 405 SAN DIEGO FREEWAY) AS SHOWN ON THE MAP AT'i'ACHED TO A DOCUMENT RECORDED SEPTEMBER 2I, 1977 IN DOOM 12385 PAGE 1453 OF OFFICIAL. RECORDS. ALSO EXCEPT ONE HALF OF ALL OIL., GAS, PETROLEUM, AND OTHER MINERAL OR HYDROCARBON SUBSTANCES IN AND UNDER OR WHICH MAY BE PRODUCED FROM SAID LAND, WITHOUT, HOWEVER, THE RIGI-IT TO USE SURFACE OF SAID LAND, AS EXCEPTED AND RESERVED IN THAT CERTAIN DEED FROM WILLIAM MILES E'r Ux,10 EDISON SECURITIES COMPANY, .DATED FEBRUARY 21, 1957 AND RECORDED IN BOOK 3827 PAGE 293 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AS RESERVED IN THE DEED FROM WILLIAM MILES AND WIFE RECORDED MARCH 6, 1957 IN BOOK 3827 PAGE 293 OF OFFICIAL RECORDS. ALSO EXCEPT'THE REMAINING ONE HALF OF ALL OIL, GAS, PETROLEUM AND OTHER MINERAL OR HYDROCARBON SUBSTANCES IN AND UNDER OR WHICH MAX BE PRODUCED FROM SAID LAND, WITHOUT, TOGETHER WITH THE RIGHT TO USE THAT PORTION ONLY OF SAID LAND WHICH UNDERLIES A PLANE PARALLEL WITH AND FIVE HUNDRED (500) FEET 13ELOW THE PRESENT SURFACE OF SAID LAND, FOR THE PURPOSE OF PROSPECTING FOR, DEVELOPING AND/OR EXTRACTING SAID OIL, GAS, PETROLEUM AND OTHER MINERAL OR HYDROCARBON SUBSTANCES FROM SAID LAND BY MEANS OF WELLS DRILLED INTO SUBSURFACE OF SAID LAND FROM DRILL SITES LOCATED ON OTHER LAND, IT BEING EXPRESSLY UNDERSTOOD AND AGREED THAT SAID EDISON SECURITIES COMPANY ITS SUCCESSORS AND ASSIGNS, SHALL HAVE NO RIGHT TO ENTER UPON THE SURFACE OF SAID LAND, OR TO USE ANY PORTION THEREOF, TO SAID DEPTH OF FIVE HUNDRED (500) FEET, FOR ANY PURPOSE WHATSOEVER, AS RESERVED IN THE DEED FROM EDISON SECURITIES COMPANY RECORDED DECEMBER 18, 1958 IN BOOK 4519 PAGE 491 OF OFFICIAL RECORDS. ALSO EXCEPT ALL WATERS IN OR UNDER THE HEREINABOVE DESCRIBED LAND IN EXCESS SUCH AS THE GRANTEE, ITS SUCCESSORS OR ASSIGNS, MAY DEVELOP FOR USE, iN MAINTAINING NORMAL AGRICULTURAL PLANTING, SOLELY AND EXCLUSIVE WiTliIN THE LMTS OF THE LAND HEREBY CONVEYED; PROVIDED, HOWEVER, THAT THE GRANTOR, HIS HEIRS AND ASSIGNS, SHALL NOT HAVE THE RIGHT TO .ENTER UPON SAID HFJZEINABOVE DESCRIBED LAND FOR THE PURPOSE OF DEVELOPING SUCH WATER, BUT ANY SUCH DEVELOPMENT SHALL BE DONE BY MEANS OF WELLS OR WORKS SUNK OR MAINTAINED ON ADJACENT LAND, AND IN SUCH MANNER AS NOT TO DAMAGE, ENDANGER OR INTERFERE WITH ANY OF THE TRANSMISSION LINES FOR ELECTRIC ENERGY OR STRUCTURES OF THE GRANTEE, ITS SUCCESSORS OR ASSIGNS, WHICH MAY BE EXISTING ON SAID HEREINABOVE DESCRIBED LAND AT THE TIME OF THE EXERCISE OF RIGHTS HEREBY RESERVED. IT IS UNDERSTOOD, HOWEVER, THAT THE RIGHTS HEREBY RESERVED MAY BE EXERCISED REGARDLESS OF GRANTEE COVENANTS, AS A COVENANT RUNNING WITH SAID HEREINABOVE DESCRIBED LAND FOR THE BENEFIT OF EACH AND EVERY PARCEL OF THE TRACT OF LAND OF THE GRANTOR, HIS HEMS AND ASSIGNS, ADJOINING THE LAND HEREBY CONVEYED, THAT THE GRANTEE WILL NOT SUFFER OR PERMIT ANY WATERS DEVELOPED ON SAID HEREINABOVE DF SCRMED LAND TO BE SOLD, OR TO BE CONDUCTED OFF OR AWAY FROM OR TO BE USED ELSEWHERE THAN THE HEREINABOVE DESCRIBED LAND, UNLESS THE EXPRESS WRITTEN PERMISSION OF THE GRANTOR, HIS HEIRS AND ASSIGNS (CONTAINED IN AN INSTRUMENT ACKNOWLEDGED SO AS TO ENTITLED THE SAME TO BE RECORDED) HAS FIRST BEEN OBTAINED, AS RESERVED IN ]'HE DEED RECORDED MARCH 6, 1957 IN BOOK 3827 PAGE 293 OF OFFICIAL RECORDS_ PARCEL E: THE NORTHERLY 110 FEET OF THE NORTH HALF OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 14, IN TOWNSHIP 5 SOUTH, RANGE I 1 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA- EXCEPT THE WESTERLY 15 FEET THEREOF AS CONVEYED TO SANTA ANA AND NEW -FORT RAILWAY COMPANY, A CORPORATION, BY DEED RECORDED DUNE 14, 1899 (N BOOK 44 PAGE 66 OF DEEDS, IN THE OFFICE OF THE COUNTY RECORDED, OF SAID COUNTY. ALSO EXCEPT ALL OIL., GAS, PETROLEUM AND OTHER MINERAL OR HYDROCARBON SUBSTANCES IN AND UNDER SAID LAND, BUT WITHOUT THE RIGHT OF ENTRY ABOVE THE DEPTH OF 500 FEET BELOW THE SURFACE THEREOF, AS RESERVED IN THE DEED FROM LEILA JAMES WHARTON RECORDED AUGUST 2, 1955 IN BOOK 3159 PAGE 483 OF OFFICIAL RECORDS. PAkC.FL F. THE SOUTHERLY 40.00 OF THE NORTHERLY 150.00 FEET OF THE NORTH HALF OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 14, TOWNSHIP 5 SOUTH, RANGE I 1 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA. EXCEPT THE WESTERLY 15 FEET THEREOF, AS CONVEYED TO SANTA ANA AND NEWPORT RAILWAY COMPANY, A CORPORATION, BY DEED RECORDED JU E 14,1899 IN BOOK44 PAGE 66 OF DEEDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPT ALL OIL, GAS, PETROLEUM AND OTHER MINERAL OR HYDROCARBON SUBSTANCES IN AND UNDER OR WHICH MAY BE PRODUCED FROM SAID LAND, WITHOUT, TOGETHER WITH THE RIGHT TO USE THAT PORTION ONLY OF SAID LAND WHICH UNDERLIES A PLANE PARALLEL WITH AND FIVE HUNDRED (50®) FEET BELOW THE PRESENT SURFACE OF SAID LAND, FOR. THE PURPOSE OF PROSPECTING FOR, DEVELOPING AND/OR EXTRACTING SAID OIL, GAS, PETROLEUM AND OTHER MINERAL OR HYDROCARBON SUBSTANCES FROM SAID LAND BY MEANS OF WELLS DRILLED INTO SUBSURFACE OF SAID LAND FROM DRILL SITES LOCATED ON OTHER LAND, IT BEING EXPRESSLY UNDERSTOOD AND AGREED THAT THE GRANTORS, THEIR SUCCFESSORS AND ASSIGNS, SHALL HAVE NO RIGHT TO .ENTER UPON THE SURFACE OF SAID LAND, OR TO USE ANY PORTION THEREOF, TO SAID DEPTH OF FIVE tiL NDRED (500) FEET, FOR ANY PURPOSE WHATSOEVER, AS RESERVED IN THE DEED RECORDED OCTOB R 15, 1956 IN BOOK 3675 PAGE. 63 OF OFFICIAL RECORDS. END OF LEGAL. DESCRIPTION COMPLETION GUARANTY THIS COMPLETION GUARANTY ("Guaranty') is made as of August 16, 2005, by Huntington Center Associates, LLC, a Delaware limited liability company and J.H. Snyder Company, a California corporation (collectively "Guarantor'') in favor of GMAC Commercial Mortgage Company, a California corporation, as mortgage lender and mezzanine lender ("Lender"), and Bella Terra Associates, LLC, a Delaware limited liability company ("Buyer'). RECITALS WHEREAS, pursuant to the terms of Loan Agreements among Lender, Buyer and Buyer's sole member, dated as of the date hereof (collectively the "Loan: Agreement'), Lender has agreed to loan to Buyer and Buyer's sole member the principal sum of up to Two Hundred Five Million Dollars ($205,000,000) through a combination of mortgage and mezzanine loans (collectively the "Loan") for the purposes specified in the Loan Agreement, which purposes include paying certain of the costs pertaining to the construction of Improvements under and as described that certain Construction Oversight Agreement of even date herewith among Snyder Huntington Development, LLC, a California limited liability company ("Construction Manager'), Huntington Center Associates, LLC, a Delaware limited liability company ("Seller") and Buyer (the "Oversight Agreement"), upon real property described therein and in the Loan Agreement ("Property'; capitalized terms used and not otherwise defined herein shall have the meanings given those terms in the Oversight Agreement); and WHEREAS, Seller has, on the date hereof, sold the Property to Buyer, and, as a condition to such sale, Buyer has required that it provide this Completion Guaranty to Lender and to Buyer.. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Guarantor unconditionally guarantees and agrees as follows: 1. Completion Guaranty. Guarantor guarantees the performance by Construction Manager of its obligations under the Construction Oversight Agreement.. Without limiting the generality of the foregoing, Guarantor' guarantees that the Improvements and the Redevelopment shall be completed in accordance with the terms of the Oversight Agreement. The Improvements shall (a) be constructed and completed in all material respects in accordance with the Plans and Specifications (subject to the teens of Section 2.16 of the Oversight Agreement); (b) be completed free and clear of any mechanic's liens, materialman's liens and equitable liens; (c) all costs pertaining to the construction thereof shall be paid when due, subject only to the advancement of Loan proceeds under and in accordance with the terms of the Loan Agreement ("Loan Advances"), and/or the disbursement of amounts held in the Completion Reserve Account, under and as defined in that certain Holdback Escrow Agreement of even date herewith among Seller, Construction Manager, Buyer and Lender (the "Holdback Escrow Agreement'), for such costs ("Escro)v Advances"). In addition to, and not in limitation of the foregoing, Guarantor guaranties that any required additional deposits into the Completion Reserve Account from Seller and/or Construction Manager shall promptly be made as and when due. 2. Completion. Completion of the Improvements and the Redevelopment free and clear of liens shall be deemed to have occurred upon "Final Completion" under and as defined in the Oversight Agreement. 3, Obligations Of Guarantor Upon Default By Borrower. if the Improvements are not commenced and completed in the manner and within the time required by the Oversight Agreement, or if, prior to the expiration of the time limits for said completion set forth in the Oversight Agreement, construction of the Improvements and the Redevelopment should cease or be halted prior to Final Completion, Guarantor shall, promptly upon demand of Lender or Buyer: (a) diligently proceed to C:\D000ME-lldr3\LOCALS-1\Tcmp�mvlcmp5dO\n,56C unp complete construction of the Improvements at Guarantor's sole cost and expense; (b) fully pay and discharge all claims for labor performed and material and services furnished in connection with the construction of the Improvements; and (c) release and discharge all claims of stop notices, mechanics' liens, materialmen's liens and equitable liens that may arise in connection with the construction of the Improvements. Without in any way limiting the above obligations of Guarantor, and subject to there being no continuing default by Guarantor under this Guaranty, Lender and Buyer shall make the undisbursed Completion Reserve Funds available to Guarantor (pursuant to the terms and conditions of the Holdback Escrow Agreement) for the purposes of completing the Improvements and fulfilling its other obligations under this Guaranty 4., Remedies; Limitation on Liability. If Guarantor fails to promptly perform its obligations under this Guaranty after notice and a reasonable opportunity to cure such failure, Lender and Buyer shall have the following remedies: a. at Lender's or Buyer's option and without any obligation to do so, to proceed to perform any or all of Guarantor's obligations hereunder; in which event Guarantor shall, upon demand, pay to Lender or Buyer all sums expended by Lender or Buyer in performing Guarantor's obligations hereunder together with interest thereon at ten (10%) percent per annurn (or the highest rate allowed by law, which ever is less); or b. to bring any action at law or in equity or both to compel Guarantor to perform its obligations hereunder; and c. to bring an action in damages and collect in any such action the amount of any loss, cost, damage, injury and expense suffered by Lender or Buyer as a result of the failure of Guarantor, to perform its obligations hereunder, together with interest thereon at ten (10%) percent per annum (or the highest rate allowed by law, which ever is less). Notwithstanding anything herein to the contrary, the liability of Guarantors hereunder, jointly and severally, shall not exceed Twenty -Five Million Dollars ($25,000,000), excluding attorneys' fees and costs of enforcement under Section 9 hereof; 5. Rights of Lender and Buyer. Guarantor authorizes Lender and Buyer, without giving notice to Guarantor or obtaining Guarantor's consent and without affecting the liability of Guarantor, from time to time to: (a) change the terms or conditions of disbursement of the Loan so long as such changes do not materially interfere with Construction Manager's ability to construct the Improvements as and when required under the Oversight Agreement, or the ability of Guarantor to complete the Improvements in accordance with this Guaranty; or (b) otherwise modify the Oversight Agreement. 6, Guarantor's Waivers. Guarantor waives: (a) any defense based upon any legal disability or other defense of Construction Manager, any other guarantor or other, person, or by reason of the cessation or limitation of the liability of Construction Manager from any cause; (b) any defense based upon any lack of authority of the officers, directors, partners or agents acting or purporting to act on behalf of Construction Manager, or any principal of Construction Manager or any defect in the formation of Construction Manager or any principal of Construction Manager; (c) any defense based upon the application by Construction Manager of the Completion Reserve Funds for purposes other than the completion of the Improvements and the Redevelopment; (d) any defense based upon Lender's or Buyer's failure to disclose to Guarantor any information concerning Construction Manager's financial condition; (f) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects more burdensome than that of a principal; and (g) any defense based upon Lender's election, in any proceeding instituted under the Federal Bankruptcy Code, of the application of Section l l l 1(b)(2) of the Federal Bankruptcy Code or any successor statute; 2 and (h) without limiting the generality of the foregoing or any other provision hereof, Guarantor- expressly waives any and all benefits which might otherwise be available to Guarantor under California Civil Code Sections 2809, 2810, 2819, 2839, 2845, 2849, 2850, 2899 and 3433. 7. Guarantor's Warranties. Guarantor warrants and acknowledges that: (a) Lender would not make the Loan but for this Guaranty and Buyer would not purchase the Property but for this Guaranty; (b) there are no conditions precedent to the effectiveness of this Guaranty; (c) Guarantor has reviewed all of the terms and provisions of the Construction Oversight Agreement, the Plans and Specifications and all other documents relating'to the construction of the Improvements and the Redevelopment; and (d) at all times prior to December 31, 2005, Huntington Center Associates, LLC shall maintain a minimum of Three Million Dollars ($3,000,000) in cash or cash equivalents and will provide to Lender and Buyer, on a monthly basis, an account statement confirming the name of the institution at which such cash or cash equivalents are maintained, the account number, and the account balance. 8. Loan Sales And Participations; Disclosure Of Information. Guarantor agrees that Lender may elect, at any time, to sell, assign, or grant participations in all or any portion of its rights and obligations under the Loan Documents and this Guaranty, and that any such sale, assignment or participation may be to one or more financial institutions, private investors, and/or other entities, at Lender's sole discretion. Guarantor further agrees that Lender may disseminate to any such actual or, potential purchaser(s), assignee(s) or participant(s) all docurnents and information (including, without limitation, all financial information) which has been or is hereafter provided to or known to Lender with respect to: (a) the Improvements and their operation; (b) any party connected with the Loan (including, without limitation, the Guarantor, the Buyer, any partner of Buyer', any constituent partner of: Buyer, any other guarantor and any non -Buyer trustor); and/or (c) any lending relationship other than the Loan which Lender may have with any party connected with the Loan. In the event of any such sale, assignment or participation, Lender and the parties to such transaction shall share in the rights and obligations of Lender as set forth in the Loan Documents only as and to the extent they agree among themselves. In connection with any such sale, assignment or participation, Guarantor further agrees that the Guaranty shall be sufficient evidence of the obligations of Guarantor to each purchaser, assignee, or participant, and upon written request by Lender, Guarantor shall consent to such amendments or modifications to the Loan Documents as may be reasonably required in order to evidence any such sale, assignment, or participa- tion. 9. Attorneys' Fees; Enforcement. If' any attorney is engaged by any party hereto to enforce or defend any provision of this Guaranty, with or without the filing of any legal action or proceeding, the prevailing party shall be entitled to reimbursement upon demand of all attorneys' fees and costs incurred in connection therewith. In any action to enforce, interpret or set aside this Guaranty, the prevailing party shall be entitled to recover all costs and attorneys' fees incurred in connection with the action or proceeding. 10. Rules of Construction; Joint and Several Liability, The term "person' as used herein shall include any individual, company, trust or other legal entity of any kind whatsoever. Ifthis Guaranty is executed by more than one person, the term "Guarantor' shall include all such persons. The obligations of Guarantor hereunder, are joint and several. When the context and construction so require, all words used in the singular herein shall be deemed to have been used in the plural and vice versa. All headings appearing in this Guaranty are for convenience only and shall be disregarded in construing this Guaranty. 11, Governing Law. This Guaranty shall be governed by, and construed in accordance with, the laws of the State of California, except to the extent preempted by federal laws.. Guarantor and all persons and entities in any manner obligated to Lender under this Guaranty consent to the jurisdiction of any federal or state court within the State of California having proper venue and also consent to service of process by any means authorized by California or federal law. 12.. Miscellaneous The provisions of this Guaranty will bind and benefit the heirs, executors, administrators, legal representatives, nominees, successors and assigns of Guarantor and Lender. The liability of all persons and entities who arc in any manner obligated hereunder shall be,joint and several. If any provision of this Guaranty shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that portion shall be deemed severed from this Guaranty and the remaining parts shall remain in full force as though the invalid, illegal or unenforceable portion had never been part of this Guaranty. 13, WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS GUARANTY, AND BY ITS ACCEPTANCE, HEREOF, LENDER, HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THE LOAN DOCUMENTS (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 WIIETHER NOW EXISTING OR HEREAFTER ARISING, AND WIIETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY AND LENDER HEREBY AGREES AND CONSENTS THAT ANY PARTY TO THIS GUARANTY AND LENDER MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO AND LENDER TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date appearing on the first page of this Guaranty.. HUNTINGTON CENTER ASSOCIATES, 11C, a Delaware limited liability company By: Huntington Management Ent., LLC, a Delaware limited liability company By: BMLF/Iluntington, LLC, a Delaware limited liability company By: Name: Title: J. R SN By: 4 any federal or state court within the State of California having proper venue and also consent to service of process by any means authorized by California or federal law. 12. Miscellaneous.. The provisions of this Guaranty will bind and benefit the heirs, executors, administrators, legal representatives, nominees, successors and assigns of Guarantor and Lender. The liability of all persons and entities who are in any manner, obligated hereunder shall be joint and several. If any provision of this Guaranty shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that portion shall be deemed severed from this Guaranty and the remaining parts shall remain in full force as though the invalid, illegal or unenforceable portion had never been part of this Guaranty. 1.3. WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS GUARANTY, AND BY ITS ACCEPTANCE HEREOF, LENDER, HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE MODIFICATION THE, OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HE, OR ANY OF THEM WITH RESPECT TO THE LOAN DOCUMENTS (AS NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HE, OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY AND LENDER HEREBY AGREES AND CONSENTS THAT ANY PARTY TO THIS GUARANTY AND LENDER MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO AND LENDER TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date appearing on the first page of this Guaranty. HUNTINGTON CENTER ASSOCIATES, LLC, a Delaware limited liability company By: Huntington Management Ent., LLC, a Delaware limited liability company By: BML,F/Huntington, LLC, a Delaware limited liability company By: Name: 6eiS7-i UQ Title: J. H. SNYDER COMPANY, a California corporation Name: Title: 0 (3) August 8, 2005 - Council/Agency Agenda - Page 3 Reconvene City Council Meeting at the Conclusion of the Closed Session — Council Chambers — 7:10 p.m. Roll Call Hansen, Coerper, Sullivan, Hardy, Green, Bohr, Cook Present No Action to be reported out is anticipated. City Clerk Joan L. Flynn announced 2 Late Communications Public Comments Regarding Special Meeting Item Speaker from J.H. Snyder Company reported on status of project completion and store openings at Bella Terra and asked Council to approve the staff recommendation. Managing Member of DJM Acquisitions Group and Bella Terra Associates representing the prospective purchasers of Bella Terra thanked Council for time taken to consider the agreement, announced his availability to answer questions, and requested Council approve the assignment agreement. Re_c_ommend'ed Action Approve_ tem on the Consent Calendar by affirmative roll�call v_ote� (City Council/Redevelopment Agency) Approve or Deny the First Implementation Agreement By and Between the Redevelopment Agency and Huntington Center Associates, LLC - Approve or Deny Assignment Assumption Agreements for Bella Terra Associates, LLC ( ) - Approve or Deny the First Implementation Agreement by and between the Redevelopment Agency and Huntington Center Associates, LLC; Approve or Deny Assignment Assumption Agreements for Bella Terra Associates, LLC for the Transfer of the Site and the Operation of the Parking Structure and, if approved, Authorize the City Administrator to Execute on Behalf of the City All Documents Necessary to Carry Out and Implement the Assignment Assumption Agreements. City Administrator Penny Cu/breth-Graft reported orally. Council inquiries ensued regarding the terms of the assignment and the guarantee of completion of the project. Deputy City —� Attorney Leonie Mulvihill reported.. Recommended action as amended by Late Communication as follows: Recommended City Action: 1. Approve the Assignment and Assumption Agreement between the City of Huntington Beach, Huntington Center Associates, LLC, and Bella Terra Associates, _1 LLC, for the Operating Agreement for the Huntington Center Parking Structure; 2. Authorize the City Administrator to execute on behalf of the City all documents necessary to carry out and implement the Assignment and Assumption Agreement. Recommended Agency Action: 1. Approve the Assignment and Assumption Agreement for the OPA dated October 2, 2000, between the Redevelopment Agency of the City of Huntington —► Beach, Huntington Center Associates, LLC, and Bella Terra Associates, LLC; 2. Approve First Implementation Agreement by and between the Redevelopment Agency and Huntington Center Associates, LLC and authorize the Agency Chairman and Agency Clerk to execute the agreement. Approved as amended 7-0 z0` TO: FROM: DATE: SUBJECT: CITY OF HUNTINGTON BEACH INTER -DEPARTMENT COMMUNICATION HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL HONORABLE CHAIRMAN AND MEMBERS OF THE REDEVELOPMENT AGENCY JENNIFER McGRAT ty Attorney T n August 8, 2005 -� f rl Late Communication City Council Meeting of August 8, 2005 (City Council/Redevelopment Agency) Approve or Deny the First Implementation Agreement By and Between the Redevelopment Agency and Huntington Center Associates, LLC Approve or Deny Assignment Assumption Agreements for Bella Terra Associates, LLC Attached for your consideration is a request for City Council/Redevelopment Agency action with regards to the above -referenced agenda item, including attachments thereto JENNIFER McGRATH City Attorney /k Attachment c: Penelope Culbreth-Grath, City Administrator Joan Flynn, City Clerk g/mulvihill/05memos/late communication 8-8-05 d Council/Agency Meeting Held: ��L A' Deferred/Continued to: A rov ❑ Condi `ally Ap roved ❑Denied Ci y le 's S atuU.re 70 Council Meeting Date: August 8, 2005 Department ID Number: ED 05-17 CITY OF HUNTINGTON BEACH REQUEST FOR CITY/REDEVELOPMENT AGENCY ACTION SUBMITTED TO: HONORABLE MAYOR/CHAIRMAN AND CITY COUNCIL/ REDEVELOPMENT AGENCY M ' ERS SUBMITTED BY: PENELOP�CBREIHzQR,�AFTit A minist at /Executive Director PREPARED BY: ROBERT F. BEARDSLActector of Econo Dev lopment/ Acting Assistant Executive Director SUBJECT: Approve Assignment Assumption Agreements for Bella Terra Associates, LLC for the Transfer of the Site and the Operation of the Parking Structure Fs' of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: The redevelopment of Huntington -Center (Bella Terra) is occurring under the terms of the Owner Participation Agreement (OPA), dated October 2, 2000, between the Redevelopment Agency of the City of Huntington Beach and Huntington Center Associates, LLC. Huntington Center Associates, LLC, is proposing the sale of the property to Bella Terra Associates, LLC. For this transaction to occur, all parties must obtain Agency approval of the assignment of the OPA and City Council approval of the assignment of the Operating Agreement for the Huntington Center Parking Structure. As a result of the Agency's approval of the assignment of the OPA there is a need for the Agency to approve a First Implementation Agreement to the OPA. Funding Source: None required. Recommended City Action: Motion to: Approve the Assignment and Assumption Agreement (Attachment 1) between the City of Huntington Beach, Huntington Center Associates, LLC, and Bella Terra Associates, LLC, for the Operating Agreement for the Huntington Center Parking Structure 2. Authorize the City Administrator to execute on behalf of the City all documents necessary to carry out and implement the Assignment and Assumption Agreement (Attachment 1). REQUEST FOR CITY/REDEVELOPMENT AGENCY ACTION MEETING DATE: August 8, 2005 DEPARTMENT ID NUMBER: ED 05-17 Recommended Agency Action: Motion to: 1. Approve the Assignment and Assumption Agreement for the OPA dated October 2, 2000, (Attachment 2) between the Redevelopment Agency of the City of Huntington Beach, Huntington Center Associates, LLC, and Bella Terra Associates, LLC. 1 2. Approve First Implementation Agreement by and between the Redevelopment Agency and Huntington Center Associates, LLC (Attachment 3) and authorize the Agency Chairman and Agency Clerk to execute the agreement. Alternative Action(s): Do .not approve the Assignment and Assumption Agreements and the First Implementation Agreement. Analysis: The redevelopment of Huntington Center (Bella Terra) is occurring under the terms of an Owner Participation Agreement (OPA) between the Redevelopment Agency of the City of Huntington Beach and Huntington Center Associates, LLC (HCA). HCA now desires to sell the subject property to Bella Terra Associates,. LLC. The Owner Participation Agreement, Section 410, allows for the transfer of the Participant's interest, with prior approval of the City and Redevelopment Agency. Kane, Ballmer and Berkman, Agency Special Counsel, has determined that Bella Terra Associates, LLC (the "Proposed Assignee") has submitted all of the documentation and evidence required per Section 410 of the OPA. The letter of determination regarding the Proposed Assignee prepared by Kane, Ballmer and Berkman is shown as Attachment 4. Kane, Ballmer and Berkman has reviewed the documentation and evidence provided by the Proposed Assignee and has determined that the Proposed Assignee is a qualified assignee pursuant to the requirements set forth in the OPA. Staff has also performed its own due diligence and has determined that the Proposed Assignee is a qualified assignee pursuant to the requirements set forth in the OPA. First Implementation Agreement by and between the Redevelopment Agency and Huntington Center Associates, LLC and Bella Terra Associates, LLC (Attachment 3) provides for a modification in the economic terms of the OPA. Briefly summarized, the First Implementation Agreement provides for an extension of the Schedule of Performance, approves a Project Budget, terminates the OPA as to the Montgomery Ward Parcel, provides for an Implementation Fee to be paid to either the Redevelopment Agency or the City as consideration for the Agency's entering into the First Implementation Agreement, and provides for the Agency's approval of the deeds of trust and other documents encumbering the Site in connection with the assignments, required pursuant to Section 411 of the OPA The operation of the public parking structure is occurring under the terms of the Operating Agreement for Huntington Center Parking Structure, dated as of March 1, 2004, between the City and HCA. Other related agreements include the Parking and Reciprocal Easement' G:\Mulvihill\Misc\BellaTerra\RCA - Special Meeting.doc -2- 8/8/2005 4:09 PM REQUEST FOR CITY/REDEVELOPMENT AGENCY ACTION MEETING DATE: August 8, 2005 DEPARTMENT ID NUMBER:. ED 05-17 Agreement and Option to Purchase and the Funding and Construction Agreement by and between the City and HCA. The Agency's assignment of the OPA necessitates the City's assignment of the Operating Agreement and these related documents for the Huntington Center Parking Structure. Environmental Status: Not Applicable: Attachment(s): 1. City of H.B. Assignment and Assumption Agreement. 2. Redevelopment Agency Assignment & Assumption Agreement. 3. First Implementation Agreement by and between the Redevelopment Agency and Huntington Center Associates, LLC and Bella Terra Associates, LLC I 4. I Letter of Determination regarding Bella Terra Associates as Responsible Third Partv per OPA, Section 410. RCA Author: Runzel G:\Mulvihill\Misc\BellaTerra\RCA - Special Meeting.doc -3- 8/8/2005 4:09 PM ATTACHMENT NO. 1 ASSIGNMENT AND ASSUMPTION AGREEMENT This Assignment and Assumption Agreement, dated as of August 1, 2005 is entered into by and among the CITY OF HUNTINGTON BEACH, a California charter city ("City"), HUNTINGTON CENTER ASSOCIATES, LLC, a Delaware limited liability company ("Assignor") and BELLA TERRA ASSOCIATES, LLC ("Assignee"), a Delaware limited liability company, with reference to the following facts: A. The City and Assignor entered into that certain Operating Agreement for Huntington Center Parking Structure as of March 1, 2004, (the "Operating Agreement"). The Operating Agreement is hereby incorporated by this reference. Reference herein to the Operating Agreement shall include any and all exhibits thereto. Any capitalized term not defined herein shall have the meaning ascribed to it in the Operating Agreement. B. The Operating Agreement pertains to the maintenance and operation of a parking structure owned by the City and more particularly described therein, consistent with that certain Parking and Reciprocal Easement Agreement and Option to Purchase, dated as of March 1, 2004 (the "Parking Easement"). C. Assignor hereby desires to assign all of its rights and delegate all of its duties and obligations under the Operating. Agreement and any and all related agreements (including the Parking Easement and the Funding and Construction Agreement by and between the City and Assignor dated as of March 1, 2004) (collectively, the "Related Agreements") to Assignee and Assignee intends to assume all rights and obligations of Assignor thereunder. NOW, THEREFORE, the City, Assignor and Assignee hereby agree as follows: 1. Assignor hereby assigns all of its right, title and interest in and to the Operating Agreement and any and all Related Agreements to Assignee and Assignee hereby accepts such assignment, and assumes all of the obligations of Assignor under the Operating Agreement and any and all Related Agreements and agrees to be bound thereby in accordance with the terms thereof. 2. Assignee shall assume and perform all executory obligations of Assignor pursuant to the Operating Agreement and any and all Related Agreements, without exception. 3. The City hereby consents to and approves the assumption of the Operating Agreement and any and all Related Agreements by Assignee. 4. The principal address of Assignee for purposes of the Operating Agreement and any and all Related Agreements is as follows: 1 DADocurnents and Settings\mulvihil\Local Settings\Temporary Internet Files\OLK3\Asst Agt (Operating Agreement4).doc 7/14/05 c/o DJM Capital Partners, Inc. 60 S. Market St., Suite 1120 San Jose, CA 95113 Att: D. John Miller 5. Approval of this Assignment and Assumption Agreement by the City is expressly conditioned upon the full and complete execution of the "Construction Oversight Agreement" by and between Snyder Huntington Development, LLC, a California limited liability company and Assignor, in substantially the same form and substance as submitted to the City Attorney's office on July 11, 2005. Any material modifications and/or amendments to the Construction Oversight Agreement shall be approved in writing by the City and such approval shall not be unreasonably withheld. 6. Approval of this Assignment and Assumption Agreement by the City is expressly conditioned upon the full and complete execution of the "Completion Guaranty" by and between Assignor and J.H. Snyder Company, a California corporation, in favor of Assignee, in substantially the same form and substance as submitted to the City's Attorney's office on July 11, 2005. Any material modifications and/or amendments to the Completion Guaranty shall be approved in writing by the City and such approval shall not be unreasonably withheld. 7. Assignee agrees to diligently enforce all of its rights and pursue all of its remedies pursuant to the Completion Guaranty. 8. Neither the assignment which is the subject of this Agreement nor anything in this Agreement shall be deemed to relieve Assignor of its duties and obligations as "Operator" under the Operating Agreement. 9. The Assignor may submit an application for release of its duties and obligations as Operator under the Operating Agreement to the City and the City agrees to diligently and in good faith review any such applications. 10. This Assignment and Assumption Agreement is made for the sole benefit and protection of the parties hereto, and their successors and assigns, and no other person or persons shall have any right of action or right to rely hereon. As this Assignment and Assumption Agreement contains all the terms and conditions agreed upon between the parties, no other agreement regarding the subject matter thereof, shall be deemed to exist or bind any party unless in writing and signed by the party to be charged. 11. This Assignment and Assumption Agreement may be executed in several duplicate originals, 2 DADocuments and Settings\mulvihil\Local Settings\Temporary Internet Files\OLK3\Asst Agt (Operating Agreement-4).doc 7/ 14/05 each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and shall become effective upon execution by the parties, as indicated by the signatures below. The signature pages of one or more counterpart copies may be removed from such counterpart copies and all attached to the same copy of this Assignment and Assumption Agreement, which, with all attached signature pages, shall be deemed to be an original agreement. When fully executed, the date of this Assignment and Assumption Agreement shall be the later of the dates indicated below. 12. This Assignment and Assumption Agreement shall be governed by the laws of the State of California. 13. If any term or provision of this Assignment and Assumption Agreement, the deletion of which would not adversely affect the receipt of any material benefit by any party hereunder, shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Assignment and Assumption Agreement shall not be affected thereby and each other term and provision of this Assignment and Assumption Agreement shall be valid and enforceable to the fullest extent permitted by law. It is the intention of the parties hereto that in lieu of each clause or provision of this Assignment and Assumption Agreement that is illegal, invalid or unenforceable, there be added as a part of this Assignment and Assumption Agreement an enforceable clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible. 14. Time is expressly declared to be of the essence in this Assignment and Assumption Agreement. 15. No provision in this Assignment and Assumption Agreement is to be interpreted for or against either party because that party or its legal representatives drafted such provision. 16. The parties hereto hereby agree to execute such other documents and to take such other action as may be reasonably necessary to further the purposes of this Assignment and Assumption Agreement. 17. The parties hereto further represent and declare that they carefully read this Assignment and Assumption Agreement and know the contents thereof, and that they sign the same freely and voluntarily. 18. Each party hereto hereby represents that the person executing this Assignment and Assumption Agreement on behalf of said party has full authority to do so and to bind the party to perform pursuant to the terms and conditions of this Assignment and Assumption Agreement. 3 DADocuments and Settings\mulvihil\Local Settings\Temporary Internet Files\OLK3\Asst Agt (Operating Agreement4).doc 7/14/05 [Signatures on following pages] 4 DADocuments and Settings\mulvihil\Local Settings\Temporary Internet Files\OLK3\Asst Agt (Operating Agreement4).doc 7/14/05 "CITY" THE CITY OF HUNTINGTON BEACH Dated: , 2005 Mayor ATTEST: City Clerk APPROVED AS TO FORM: City Attorney APPROVED AS TO FORM: KANE, BALLMER & BERKMAN City Special Counsel [Signatures continue on following page] 5 DADocuments and Settings\mulvihil\Local Settings\Temporary Internet Files\OLM3 Asst Agt (Operating Agreement4).doc 7/14/05 "Assignor" HUNTINGTON CENTER ASSOCIATES, LLC By: Huntington Management Ent., LLC, a Delaware limited liability company, Its Manager By: BMLF/Huntington, LLC, a Delaware limited liability company, Its Manager Dated: , 2005 By: Bryan Ezralow, Trustee of the Bryan Ezralow 1994 Trust Its Manager "Assignee" BELLA TERRA ASSOCIATES, LLC By: Bella Terra Borrower, LLC, a Delaware limited liability company, Its member Dated: 52005 By: D. John Miller, President Verlin Simmons, Its Independent Director 6 DADocuments and Settings\mulvihil\Local Settings\Temporary Internet Files\OLK3Wsst Agt (Operating Agreement-4).doc 7/14/05 ATTACHMENT NO. 2 ASSIGNMENT AND ASSUMPTION AGREEMENT This Assignment and Assumption Agreement, dated as of August 8, 2005, is entered into by and among the REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body, corporate and politic ("Agency"), HUNTINGTON CENTER ASSOCIATES, LLC, a Delaware limited liability company ("Assignor") and BELLA TERRA ASSOCIATES, LLC, a Delaware limited liability company ("Assignee") with reference to the following facts: A. The Agency and Assignor entered into that certain Owner Participation Agreement dated October 2, 2000, as implemented by that certain First Implementation Agreement dated as of August 8, 2005 (collectively, the "OPA"). The OPA is hereby incorporated by this reference. Reference herein to the OPA shall include any and all attachments thereto. Any capitalized term not defined herein shall have the meaning ascribed to it in the OPA. B. The OPA pertains to the construction, development, operation and management of the Site, generally comprised of a retail shopping center formerly known as Huntington Center and currently known as Bella Terra. C. Assignor and DJM Acquisition Group, LLC, a Delaware limited liability company, Assignee's predecessor in interest, entered into that certain Purchase Agreement dated as of March 31, 2005 for the Site pursuant to which the Site shall be conveyed to Assignee. D. Assignor hereby desires to assign all of its rights and delegate all of its duties under the OPA and any and all related agreements and documents (collectively, the "Related Agreements") to Assignee and Assignee intends to assume all rights and obligations of Assignor thereunder. NOW, THEREFORE, the Agency, Assignor and Assignee hereby agree as follows: The OPA is and remains in full force and effect. 2. Assignor hereby assigns all of its right, title and interest in and to the OPA and any and all Related Agreements to Assignee and Assignee hereby accepts such assignment, and assumes all of the obligations 'of Assignor under the OPA, including but not limited to, all obligations related to the development of the Site as set forth therein, and any and all Related Agreements and agrees to be bound thereby in accordance with the terms thereof. 3. Assignee shall assume and perform all executory obligations of Assignor pursuant to the OPA and any and all Related Agreements, without exception. 4. The Agency hereby consents to and approves the assumption of the OPA and any and all G:\Mulvihill\Misc\BellaTerra\Asst Agt (OPA)Tdoc 8-5-05 Related Agreements by Assignee. The principal address of Assignee for purposes of the OPA and any and all Related Agreements is as follows: c/o DJM Capital Partners, Inc. 60 S. Market St., Suite 1120 San Jose, CA 95113 Att: D. John Miller Approval of this Assignment and Assumption Agreement by the Agency is expressly conditioned upon the full and complete execution of the "Construction Oversight Agreement" by and between Snyder Huntington Development, LLC, a California limited liability company and Assignor, in substantially the same form and substance as submitted to the Agency General Counsel's office on July 11, 2005. Any material modifications and/or amendments to the Construction Oversight Agreement shall be approved in writing by the Agency and such approval shall not be unreasonably withheld. 6. Approval of this Assignment and Assumption Agreement by the Agency is expressly conditioned upon the full and complete execution of the "Completion Guaranty" by and between Assignor and J.H. Snyder Company, a California corporation, in favor of Assignee, in substantially the same form and substance as submitted to the Agency General Counsel's office on July 11, 2005. Any material modifications and/or amendments to the Completion Guaranty shall be approved in writing by the Agency and such approval shall not be unreasonably withheld. 7. Assignee agrees to diligently enforce all of its rights and pursue all of its remedies pursuant to the Completion Guaranty. 8. Assignee acknowledges and agrees that: a. The Schedule of Feasibility Gap Payments, Part 1, attached to the OPA as Attachment No. 7 and applicable only if the Ward Parcel is part of the Site, is hereby null and void and the Agency has no reimbursement obligations to Assignee as contemplated therein; and b. Any reimbursement obligations required to be made by the Agency pursuant to the Schedule of Feasibility, Part 2, attached to the OPA as Attachment 7, shall be made to the Assignee as Participant, and in accordance with the terms of the OPA. 9. This Assignment and Assumption Agreement is made for the sole benefit and protection of the parties hereto, and their successors and assigns, and no other person or persons shall have any right of action or right to rely hereon. As this Assignment and Assumption Agreement G:\Mulvihill\Misc\BellaTerra\Asst Ab (OPA)7.doc 2 8-5-05 contains all the terms and conditions agreed upon between the parties, no other agreement regarding the subject matter thereof, shall be deemed to exist or bind any party unless in writing and signed by the party to be charged. 10. This Assignment and Assumption Agreement may be executed in several duplicate originals, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and shall become effective upon execution by the parties, as indicated by the signatures below. The signature pages of one or more counterpart copies may be removed from such counterpart copies and all attached to the same copy of this Assignment and Assumption Agreement, which, with all attached signature pages, shall be deemed to be an original agreement. When fully executed, the date of this Assignment and Assumption Agreement shall be the later of the dates indicated below. 11. This Assignment and Assumption Agreement shall be governed by the laws of the State of California. 12. If any term or provision of this Assignment and Assumption Agreement, the deletion of which would not adversely affect the receipt of any material benefit by any party hereunder, shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Assignment and Assumption Agreement shall not be affected thereby and each other term and provision of this Assignment and Assumption Agreement shall be valid and enforceable to the fullest extent permitted by law. It is the intention of the parties hereto that in lieu of each clause or provision of this Assignment and Assumption Agreement that is illegal, invalid or unenforceable, there be added as a part of this Assignment and Assumption Agreement an enforceable clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible. 13. Time is expressly declared to be of the essence in this Assignment and Assumption Agreement. 14. No provision in this Assignment and Assumption Agreement is to be interpreted for or against either party because that party or its legal representatives drafted such provision. 15. The parties hereto hereby agree to execute such other documents and to take such other action as may be reasonably necessary to further the purposes of this Assignment and Assumption Agreement. 16. The parties hereto further represent and declare that they carefully read this Assignment and Assumption Agreement and know the contents thereof, and that they sign the same freely and voluntarily. G:\Mulvihill\Misc\BellaTena\Asst Ab (OPA)Tdoc 3 8-5-05 17. Each party hereto hereby represents that the person executing this Assignment and Assumption Agreement on behalf of said party has full authority to do so and to bind the party to perform pursuant to the terms and conditions of this Assignment and Assumption Agreement. 18. Neither the assignment which is the subject of this Agreement nor anything in this Agreement shall be deemed to relieve Assignor of its duties and obligations as "Participant" under the OPA. 19. After a Release of Construction Covenants has been issued for the Site, the Assignor may submit to the Agency an application for release of its duties and obligations as Participant under the OPA and the Agency agrees to diligently and in good faith review any such application. "AGENCY" REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH Dated: .2005 Executive Director ATTEST: Agency Secretary APPROVED AS TO FORM: Agency General Counsel G:\Mulvihill\Misc\BellaTerra\Asst Agt (OPA)Tdoc 4 8-5-05 APPROVED AS TO FORM: Agency Special Counsel KANE, BALLMER & BERKMAN "Assignor" HUNTINGTON CENTER ASSOCIATES, LLC By: Huntington Management Ent., LLC, a Delaware limited liability company, Its Manager By: BMLF/Huntington, LLC, a Delaware limited liability company, Its Manager Dated: , 2005 By: Bryan Ezralow, Trustee of the Bryan Ezralow 1994 Trust Its Manager "Assignee" BELLA TERRA ASSOCIATES, LLC By: Bella Terra Borrower, LLC, a Delaware limited liability company, Its member Dated: , 2005 . By: ' D. John Miller, President Verlin Simmons, Its Independent Director G:\Mulvihill\Misc\BellaTerra\Asst Agt (OPA)Tdoc 5 8-5-05 ATTACHMENT NO. 3 FIRST IMPLEMENTATION AGREEMENT TO OWNER PARTICIPATION AGREEMENT by and between THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH and HUNTINGTON CENTER ASSOCIATES, LLC FIRST IMPLEMENTATION AGREEMENT TO OWNER PARTICIPATION AGREEMENT This FIRST IMPLEMENTATION AGREEMENT ("Agreement") is dated as of August 4, 2005 for reference purposes only, and is entered into by and between the REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body, corporate and politic ("Agency"), and HUNTINGTON CENTER ASSOCIATES, LLC, a California limited liability company ("Participant"), with reference to the following facts: RECITALS A. The Agency and Participant entered into that certain Owner Participation Agreement dated October 2, 2000, (the "OPA"). The OPA is hereby incorporated by this reference. Reference herein to the OPA shall include any and all attachments thereto. Any capitalized term not defined herein shall have the meaning ascribed to it in the OPA. B. The OPA pertains to the construction, development, operation and management of the Site, generally comprised of a retail shopping center formerly known as Huntington Center and currently known as Bella Terra. C. An Agreement Containing Covenants Affecting Real Property by and between the Agency and Participant was recorded against the Site recorded on , 2005 as Document No. within the official records of the Office of the Recorder of the County of Orange. D. The Participant entered into that certain Purchase Agreement dated as of March 31, 2005 for the Site pursuant to which the Site shall be ultimately conveyed to Bella Terra Associates, LLC, a Delaware limited liability company (the "Assignee") and has requested that the Agency approve assignment of the OPA to the Assignee (the "Assignment"). E. The Agency and Participant desire to enter into this Agreement to implement and clarify the OPA in light of the proposed Assignment as follows: (1) to extend certain dates in the Schedule of Performance; (2) to provide for approval of a Project Budget as required by Section 202 of the OPA; (3) to terminate the OPA as to the Montgomery Wards Parcel, including without limitation, the Schedule of Feasibility Gap Payment Part 1; and (4) to provide for the payment of the "Implementation Fee," as defined herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Agency and Participant agree as follows: Extension of the Schedule of Performance. The DDA is hereby amended by changing all references to the "Schedule of Performance" and "Attachment No. 3" to the "Revised Schedule of Performance" and the "Revised Attachment No. 3." The "Revised Schedule of Performance" is attached hereto as Exhibit A, labeled "Revised Attachment No. 3" and incorporated herein by this reference. The Participant hereby agrees to comply with all provisions of the Revised Schedule of Performance. 2. Project Budget. The Agency, in accordance with Section 202 of the OPA, hereby approves the Project Budget dated August , 2005, a true and correct copy of which is on file in the office of the Agency Clerk, and incorporated herein by this reference. 3. Termination of OPA as to Montgomery Ward Parcel. The OPA is hereby terminated in its entirety as to the Montgomery Ward Parcel, including, without limitation, the Schedule of Feasibility Gap Payments, Part 1 and the Agency is not obligated to make any Agency reimbursement payments relating to the Montgomery Ward Parcel. Neither Participant nor Agency shall have any further obligations to the other party with respect to the Montgomery Ward Parcel. 4. Implementation Fee. Upon execution of this Agreement by Agency and its delivery, to Participant, the Participant shall pay the total sum of One Million Five Hundred Thousand Dollars ($1,500,000) to the Agency or the City, as first directed in writing by the Agency's Executive Director, as consideration for the Agency entering into this First Implementation Agreement, including, without limitation, extension by the Agency of the Schedule of Performance, and as consideration for any potential adverse effects this Agreement may have on the City. 5. Approval of GMAC Financing. By execution of this Agreement, Agency shall be deemed to have provided its prior written approval pursuant to Section 411 of the OPA of the deeds of trust and other documents encumbering the Site to be provided to GMAC in connection with the proposed purchase of the Site in accordance with that certain Assignment and Assumption Agreement of even date herewith by and among Participant, Agency and Bella Terra Associates, LLC. 6. Binding on Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors, assignees, personal representatives, heirs and legatees of the parties hereto. 7. OPA in Full Force and Effect. Except as otherwise modified herein, the terms and conditions of the OPA shall remain unmodified and in full force and effect. In the event of any conflict between the terms of this Agreement and the OPA, the terms of this Agreement shall control. 8. Further Assurances. The parties agree to execute such other documents and to take such other action as may be reasonably necessary to further the purposes of this Agreement. 9. Date of this Agreement. The "Effective Date" of this Agreement shall be the date this Agreement is executed by the Agency. 10. Counterparts. This Agreement may be executed by each party on a separate signature page, and when the executed signature pages are combined with the balance of this Agreement, it shall constitute one single instrument. [remainder of page left intentionally blank] [signatures on following pages] "AGENCY" REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH Dated: , 2005 Executive Director ATTEST: Agency Secretary APPROVED AS TO FORM: Agency General Counsel APPROVED AS TO FORM: Agency Special Counsel KANE, BALLMER & BERKMAN [Signatures continue' on following page] "PARTICIPANT" HUNTINGTON CENTER ASSOCIATES, LLC By: Huntington Management Ent., LLC, a Delaware limited liability company, Its Manager By: BMLF/Huntington, LLC, a Delaware limited liability company, Its Manager Dated: , 2005 By: Bryan Ezralow, Trustee of the Bryan Ezralow 1994 Trust Its Manager Exhibit A REVISED SCHEDULE OF PERFORMANCE [behind this page] SCHEDULE OF PERFORMANCE (Revised August 8, 2005) Submission — Guaranty Agreement. Participant Prior to Agency's execution of this shall submit Guaranty Agreement to Agency Agreement. pursuant to Section 105.2 (b) of this Agreement. COMPLETED Submission — Original Letter of Credit. Participant shall submit Original Letter of Credit to Agency pursuant to Section 305 of this Agreement. Submission — Evidence of Financing. Participant shall submit to Agency for approval the evidence of financing referred to in Section 202 of this Agreement. Approval — Evidence of Financing. Agency shall approve or disapprove evidence of financing. Submission — Project Budget. Participant shall submit to Agency for approval or disapproval a proposed Project Budget pursuant to Section 202 of this Agreement. Approval — Project Cost Budget. Agency shall approve or disapprove the proposed Project Budget. Submission — Annlications for Demolition. Gradiniz and Excavation Permits. Participant shall submit to City for approval applications for demolition, grading and excavation permits and related documents. Entitlements and Approvals. Participant to obtain all entitlements and approvals necessary for the redevelopment of the Site. No later than 30 days after the date of Agency's determination to Acquire Additional Properties by authorizing Agency staff to initiate negotiations to acquire such properties, if any. COMPLETED No later than 180 days after the date of this Agreement. COMPLETED Within 30 days after receipt by Agency. COMPLETED Concurrently with submission of Evidence of Financing. COMPLETED Within 30 days after receipt of proposed Project Budget. COMPLETED No later than 180 days after the date of this Agreement. COMPLETED No later than 180 days after the date of this Agreement. COMPLETED Schedule of Performance 1 Commencement of Construction. Participant shall Within 210 days after the date of this Agreement commence the work and improvements required for for grading. Within 270 days after the date of this redevelopment of the site. Agreement for vertical improvements. COMPLETED Completion of Construction. Participant shall complete - Not later than December 31, 2006 construction of all improvements. Certificate of Occupancy. Participant shall obtain a Participant shall apply for certificate of certificate of occupancy from the City for the occupancy upon completion of construction redevelopment Site. and diligently prosecute in accordance with City requirements Release of Construction Covenants. Agency to execute Upon Participant's completion of redevelopment Release of Construction Covenants approving completion of the Site pursuant to this Agreement and of redevelopment pursuant to this Agreement and Participant's written request for a Release of terminating Guaranty Agreement. Construction Covenants. Operating Commencement Date. Participant's obligation to make Agency Participation Payments pursuant to Section 601 of this Agreement commences. Agency's obligation to make reimbursement . payments to Participant pursuant to Attachment No. 7 commences. NOTES: The last to occur of either the .date of issuance of a Certificate of Occupancy by the City for the redevelopment Site, or the opening for business to the general public of the first -quality shopping center required to be redeveloped be this Agreement. 1. Deadlines set forth in this Schedule of Performance are subject to the enforced delay provisions of Section 808 of the Agreement. 2. Extensions may be approved in writing by the Agency's Executive Director pursuant to the Agreement. 3. Descriptions of items of performance and deadlines in this Schedule of Performance are not intended to supercede more complete deceptions in the text of the Agreement; and in the event of any conflict between the text of the Agreement and this Schedule, the text of the Agreement shall govern. Schedule of Performance 2 ATTACHMENTNO, 4 fy .T. BANE, BALLMER & BERKMAN A LAW CORPORATION 515 SOUTH FIGUEROA STREET. SUITE 1850 LOS ANGELES, CALIFORNIA 90071 TELEPHONE (213) 617-0480 FAX (213) 625-0931 www-kbbtaw_com June 30, 2005 VIA FAX Redevelopment Agency of the City of Huntington Beach c/o Leonie Mulvihill Office of the City Attorney 2000 Main Street, Fourth Floor Huntington Beach, CA 92648 RE: Letter of Determination regarding proposed Huntington Center/Bella Terra . Assignment Dear Redevelopment Agency; In regards to the proposed assignment of that certain Owner's Participation Agreement entered into on October 2, 2000 (the "OPA"), by and between the Redevelopment Agency of the City of Huntington Beach and Huntington Center Associates, LLC (the "Assignor") to Bella Terra Associates, LLC (the "Proposed Assignee"), the Proposed Assignee has submitted the following items in response to the applicable requirements set forth in Section 401 of the OPA: 1. Development Experience: Pursuant to the OPA, the Proposed Assignee must demonstrate qualifications and experience with respect to the type of development proposed in the OPA equal or greater to that of the Assignor to assure the development and operation of the shopping center as specified in the OPA (the "Site"). The Proposed Assignee has submitted information regarding six California projects that principals of the Proposed Assignee, through D3M Capital Partners, Inc., have been involved with along with a list of projects constructed by principal Lindsay Parton's construction company, Parton and Edwards, Inc. The Assignor and J.H. Snyder Company, LLC, have entered into a "Seller Completion Agreement" in favor of Assignee whereby J.H. Snyder agrees to complete the construction of the Project. The Assignee has . certain remedies against J.H. Snyder Company in the event the construction is not completed and has agreed to diligently pursue said remedies per the "Assignment and Assumption Agreement" of the OPA. �'7 1-1 2. Operation and Management Experience: The OPA requires that the Proposed Assignee demonstrate experience in the management and operation of shopping centers similar to the Site. DJM Capital Partners, Inc. has entered into a sub -management agreement with CB Richard Ellis to provide for the joint management of the Site. The Proposed Assignee has submitted information detailing CB Richard Ellis's management experience along with a brief description of properties that DIM Capital has managed. 3. Financial Evidence: Pursuant to the OPA, the Proposed Assignee must submit evidence of financial resources or commitments adequate to assure operation and development of the Site in accordance with the OPA as well as showing that the; Proposed Assignee's finances are comparable to or exceeds those of the Assignor. The Proposed Assignee has submitted financial evidence for the five principals of -DJM Capital, Inc. showing combined assets in excess of One Hundred Million Dollars. Funds shall also be held in escrow to complete construction of the Site, as set forth in the Purchase and Sale Agreement for the Site. As special counsel to the Agency, we have determined that the Proposed Assignee has submitted all the information required pursuant to the OPA for Agency review of the proposed assignment. However, whether or not such information as to the Proposed Assignee's management and development experience and financial resources assures the Agency that the redevelopment of the Site will be completed in the manner, quality and as envisioned by the OPA, is a determination to be made by the Agency in its discretion. Sincerely, Shannon McWhinney Flynn, Joan From: Dapkus, Pat Sent: Monday, August 08, 2005 2:49 PM To: Flynn, Joan Subject: FW: Owner Participation Agreement Transfer - Bella Terra Picture c CZ X v+ -+ m c � c> — — -----Original Message ----- From: Charlie Bunten[mailto:charlie.bunten@ustri.com] o+'. Sent: Monday, August 08, 2005 2:39 PM M-nmr_ To: city.council@surfcity-hb.org � : Cc: Pat Dapkus; Cathy Fikes w Subject: Owner Participation Agreement Transfer - Bella Terra ^ c) Madame Mayor Honorable Members of the City Council City of Huntington Beach I am writing to you today to request your support for the smooth transfer of the Owner Participation Agreement, that is now between the Redevelopment Agency of the City of Huntington Beach and Huntington Center Associates, to be between the Redevelopment Agency of the City of Huntington Beach and DJM Capital Partners. DJM Capital Partners represents the best that the City of Huntington Beach would desire in a business partner for the completion and operation of the redesigned and reconstructed Huntington Center, now known as Bella Terra. Comprised of partners that have exhibited many,.many years of successful shopping center ownership, development and management across the USA, DJM Capital Partners is fully committed to the completion and operation of the Bella Terra project. The Bella Terra center requires top notch ownership and management to serve the needs of the residents of Huntington Beach and the surrounding communities. The business of running the City of Huntington Beach is a challenge that is met each day by the talented management team within our own city hall, from the Huntington Beach City Council to the city staff, so each of you as Council Members can fully appreciate the need for strong management at Bella Terra. To be an effective partner to our City of Huntington Beach, Bella Terra deserves a strong commitment and professional management from its operator/owner. DJM Capital Partners represents that commitment and professionalism. As the immediate past Chairperson of the Huntington Beach Chamber of Commerce and a thirty-year plus resident of Huntington Beach, I urge you to please vote yes to transfer the Owner Participation Agreement to DJM Capital Partners. Charlie Bunten US Technology Resources, L.L.C. 3540 Howard Way Costa Mesa, CA 92626 Tel: 949-609-4703 Fax: 949-609-0001 Council/Agency Meeting Held: efe d/Continued to: /.r/0.s ❑ Approved ❑ Conditionally Approved ❑ Denied �it CI k's i nature Council Meeting Date: August 1, 2005 Department ID Number: ED 05-1y CITY OF HUNTINGTON BEACH A C REQUEST FOR CITY/REDEVELOPMENT AGENCY ACTION o SUBMITTED TO: HONORABLE MAYOR/CHAIRMAN AND CITY COUNCIL/ REDEVELOPMENT AGENCY MEMBERS tom. SUBMITTED BY: PENE PE C BRETH-GRA T, City Administrator/Executiv-0 Director CD C-) PREPARED BY: ROBERT F. BEARDSLEY, Acting Di of Economic Development/ Acting Assistant Executive Directow SUBJECT: Approve Assignment Assumption-reements for Bella Terra Associates, LLC for the Transfer of the Site and the Operation of the Parking Structure Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: The redevelopment/of Huntington Center (Bella Terra) is occurring under the terms of the Owner Participation Agreement (OPA), dated October 2, 2000, between the Redevelopment Agency of'the City of Huntington Beach and Huntington Center Associates, LLC. Huntington Center/Associates, LLC, is proposing the sale of the property to Bella Terra Associates, LLC. For this transaction to occur, all arties must obtain Agency approval of the assignment of the/OPA and Ci . < < va_' f s ® n a of Funding and Construction A greement regarding the City of �liatoryacilities District No. 2003-1. Funding Source: None re q uired. / Recommended City Action: Motion to: Approve the Assignment and Assumption Agreement (Attachment 1) between the City of Huntington Beach, Huntington Center Associates, LLC, and Bella Terra Associates, LLC, for the Funding and Construction Agreement dated March 1, 2004 relating to the City of Huntington Beach Community Facilities District No. 2003-1. Recommended Agency Action: Motion to: 1. A,ve the Assignment and Assumption Agreement for the OPA dated October 2, ,PP 9 2000, (Attachment 2) between the Redevelopment Agency of the City of Huntington Beach, Huntington Center Associates, LLC, and Bella Terra Associates, LLC. E to REQUEST FOR CITY/REDEVELOPMENT AGENCY ACTION MEETING DATE: August 1, 2005 DEPARTMENT ID NUMBER! ED 05-17 Alternative Action(s): Do not approve the Assignment and Assumption Agreements. Analysis: The redevelopment of Huntington Center (Bella Terra) is occurring under the terms of an Owner Participation Agreement (OPA) between the Redevelopment Agency of the City of Huntington Beach and Huntington Center Associates, LLC. Huntington Center now desires to sell the subject property to Bella Terra Associates. The Owner Participation Agreement, Section 410, allows for the transfer of the Participant's interest with prior approval of the City and Redevelopment Agency. Kane, Ballmer and Berkman, Agency Special Counsel, has determined that Bella Terra Associates (the "Proposed Assignee") has submitted all of the documentation and evidence required per Section 410 of the OPA. The letter of determination regarding the Proposed Assignee prepared by Kane, Ballmer and Berkman is shown as Attachment 3. Kane, Ballmer and Berkman has reviewed the documentation and evidence provided by the Proposed Assignee and has determined that the Proposed Assignee is a qualified assignee pursuant to the requirements set forth in the OPA. Staff has also performed its own due diligence and has determined that the Proposed Assignee is a qualified assignee pursuant to the requirements set forth in the OPA. Development of a public parking Construction Agreement relatinc Center) 2004 Special Tax Bond allows for the assignment of this 410 of the OPA. Environmental Status: ©� City Clerk's Page Number Nc RCA Author:/Runzel structure is occurring under the terms of the Funding and 1/to the Community Facilities District 2003-1 (Huntington s. The Funding and Construction Agreement, Section 7, agreement that refers to compliance with Sections 105 and Applicable. City of H.B. Assignment and Assumption Agreement. Redevelopment Agency Assignment & Assumption Agreement. Letter of Determination regarding Bella Terra Associates as Responsible Third Party per OPA, Section 410. G:\Carol\Administration\RCA\ED05-17.doc -2- 7/14/2005 8:00 AM City Assignment and Assumption Agreement IAT TACHMENT 1 I ASSIGNMENT AND ASSUMPTION AGREEMENT This Assignment and Assumption Agreement, dated as of August 1, 2005 is entered into by and among the CITY OF HUNTINGTON BEACH, a California/charter city ("City"), HUNTINGTON CENTER ASSOCIATES, LLC, a Delaware limited liability company ("Assignor") and BELLA TERRA ASSOCIATES, LLC ("Assignee"), a Delaware limited liability company, with reference to the following facts: A. The City and Assignor entered into that certain Operating Agreement for Huntington Center Parking Structure as of March 1, 2004, (the "Operating Agreement"). The Operating Agreement is hereby incorporated by this reference. Reference herein to the Operating Agreement shall include any and all exhibits thereto. Any capitalized term not defined herein shall have the meaning ascribed to it in the Operating Agreement. B. The Operating Agreement pertains to the maintenance and operation of a parking structure owned by the City and more particularly described therein, consistent with that certain Parking and Reciprocal Easement Agreement and Option to Purchase, dated as of March 1, 2004 (the "Parking Easement"). C. Assignor hereby desires to assign all of its rig d le 11 f s ie obligations under the Operating Agreemen sand any and all related agreements (mc dm he Parking Easement and the Funding and Construction Agre_ reen the City and Assignor dated as of March 1/2004) (collectively, th ti nts") to Assignee and Assignee intends to assume all rights and obligations o Assignor thereunder. NOW, THEREFORE, the City, Assignor and Assignee hereby agree as follows: 1. Assignor hereby assigns all of its right, title and interest in and to the Operating Agreement and any and all Related Agreements to Assignee and Assignee hereby accepts such assignment, and assumes all of the obligations of Assignor under the Operating Agreement and any and all Related Agreements and agrees to be bound thereby in accordance with the terms thereof. 2. Assignee shall assume and perform all executory obligations of Assignor pursuant to the Operating Agreement and any and all Related Agreements, without exception. 3. The City/hereby consents to and approves the assumption of the Operating Agreement and any and/all Related Agreements by Assignee. 4. The principal address of Assignee for purposes of the Operating Agreement and any and all Related Agreements is as follows: 1 K:\CG\HB\CENTER\Asst Agt (Operating Agreement-4).doc 7/14/05 c/o DJM Capital Partners, Inc. 60 S. Market St., Suite 1120 San Jose, CA 95113 Att: D. John Miller 5. Approval of this Assignment and Assumption Agreement by/the City is expressly conditioned upon the full and complete execution of the "Construction Oversight Agreement" by and between Snyder Huntington Development, LLC, a California limited liability company and Assignor, in substantially the same form/and substance as submitted to the City Attorney's office on July 11, 2005. Any material modifications and/or amendments to the Construction Oversight Agreement shall be approved in writing by the City and such approval shall not be unreasonably withheld. 6. Approval of this Assignment and Assumption/Agreement by the City is expressly conditioned upon the full and complete execution of the "Completion Guaranty" by and between Assignor and J.H. Snyder Company, a/California corporation, in favor of Assignee, in substantially the same form and substancas submitted to the City's Attorney's office on July 11, 2005. Any material modification and/or amendments to the Completion Guaranty shall be approved in writing by the City and such approval shall not be unreasonably withheld. 7. Assignee agrees to diligently enforce all of UQ a4Ce Il Or"Ndies pursuant to the Completion Guaranty. 8. Neither the assignment which is the subject of� tm Xtor an thin in this g /J ganything Agreement shall be deemed to relieve Assignor of its duties and obligations as "Operator" under the Operating Agreement. 9. The Assignor may submit an application for release of its duties and obligations as Operator g Y � pp g P under the Operating Agreement to the City and the City agrees to diligently and in good faith review any such applications. 10. This Assignment and Assumption Agreement is made for the sole benefit and protection of the parties hereto, and their successors and assigns, and no other person or persons shall have any right of action or right to rely hereon. As this Assignment and Assumption Agreement contains all the terms and conditions agreed upon between the parties, no other agreement regarding the subject matter thereof, shall be deemed to exist or bind any party unless in writing and signed by the party to be charged. 11. This Assignment and Assumption Agreement may be executed in several duplicate originals, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and shall become effective upon execution by the parties, as indicated 2 K:\CG\HB\CENTER\Asst Agt (Operating Agreement-4).doc 7/14/05 by the signatures below. The signature pages of one or more counterpart copies may be removed from such counterpart copies and all attached to the same copy of this Assignment and Assumption Agreement, which, with all attached signature pages, shall be deemed to be an original agreement. When fully executed, the date of this Assignment and Assumption Agreement shall be the later of the dates indicated below. 7 12. This Assignment and Assumption Agreement shall be gbverned by the laws of the State of California. 13. If any term or provision of this Assignment and>'Assumption Agreement, the deletion of which would not adversely affect the receipt of any material benefit by any party hereunder, shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Assignment and Assumption Agreement shall not be affected thereby and each other term and provision of this Assignment and Assumption Agreement shall be valid and enforceable to the fullest extent permitted by law. It is the intention of the parties hereto that in lieu of each clause or provision of this Assignment and Assumption Agreement, that,is. illegal, invalid or unenforceable, there be added as a part of this Assignment and Assumption Agreement an enforceable clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be p� 14. Time is expressly declared to be of the essence in this Assignment idQs`� Agreement. TA K E, 15. No provision in this Assignment and Assumption Agreement is to be interpreted for or against either party because that party or its legal representatives drafted such provision. 16. The parties hereto herbby agree to execute such other documents and to take such other action as may be reasonably necessary to further the purposes of this Assignment and Assumption Agreement. 17. The parties heret further represent and declare that the carefully read this Assignment and p � p Y Y � Assumption Agreement and know the contents thereof, and that they sign the same freely and voluntarily. 18. Each party hereto hereby represents that the person executing this Assignment and Assumption Agreement on behalf of said party has full authority to do so and to bind the party to perform pursuant to the terms and conditions of this Assignment and Assumption [Signatures on following pages] 3 K:\CG\HB\CENTER\Asst Agt (Operating Agreement-4).doc 7/14/05 "CITY" THE CITY OF HUNTING Dated: , 2005 Mayor ATTEST: City Clerk APPROVED AS TO FORM: City Attorney l-A`TION //N rr^^ nn IY` 0 'l016TA APPROVED AS TO FORM: KANE, BALLMER & BERKMAN City Special Counsel continue on following page] 4 KACG\HB\CENTER\Asst Agt (Operating Agreement-4).doc 7/14/05 "Assignor" HUNTINGTON CENTER ASSOC ATES, LLC By: Huntington Managemee t Ent., LLC, a Delaware limited lability company, Its Manager By: BMLF/Huntir ton, LLC, a Delaware}'mited liability company, Its Managdr , Dated: 52005 By: !-Br=ywr-E-zra Ezra - ruste -of "ZFrost -It,-Marragcr Cristina Agra -Hughes, as Senior Vice President 1 �oSEE "AssigneeO" BELLA TERRA ASSOCIATES, LLC By: Bella Terra Borrower, LLC, a Delaware limited liability company, Its member Dated: C vQ� y�i D. John Miller, President Verlin Simmons, Its Independent Director 5 KACG\HB\CENTER\Asst Agt (Operating Agreement-4).doc 7/14/05 "Assignor" HUNTINGTON CENTER ASSOCIA By: Huntington Management Ent.., L'LC, a Delaware limited liability company, Its Manager By: BMLF/Huntington, , C, a Delaware limited/liability company, Its Manager Dated: , 2005 By: Dated: ° 7 Bryan Ezralow, Trustee of the Bryan Ezralow 1994 Trust Its Manager BELLA TERRA ASSOCIATES, LLC By: Bella Terra Borrower, LLC, a Delaware limi i i pany, Its member 2005 B . D. ohn Miller, President By: , nin mons, Its Independent Director 1 5 K:\CG\HB\CENTER\Asst Agt (Operating Agreement-4).doc 7/14/05 Agency Assignment and Assumption Agreement ATTACHM ENT 2 ASSIGNMENT AND ASSUMPTION AGREEMENT This Assignment and Assumption Agreement, dated as of August 1, 2005, is entered into by and among the REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTONABEACH, a public body, corporate and politic ("Agency"), HUNTINGTON CENTER ASSOCIATES, LLC, a Delaware limited liability company ("Assignor") and BELLA TERRA ASSOCIATES, LLC ("Assignee"), a Delaware limited liability company, with reference to the following facts: A. The Agency and Assignor entered into that certain Owner Participation Agreement dated October 2, 2000, (the "OPA"). The OPA is hereby incorporated by this reference. Reference herein to the OPA shall include any and all attachments thereto. Any capitalized term not defined herein shall have the meaning ascribed to item the OPA. B. The OPA pertains to the construction, development, operation and management of the Site,. generally comprised of a retail shopping center formerly known as Huntington Center and currently known as Bella Terra. C. Assignor and DJM Acquisition Group, LLC, Assignee's predecessor in interest, entered into tl March 31, 2005 for the S' anAfi hich/tt ✓� D. Assignor hereby desires to assign all t andany and all related agreeme n document to Assignee and Assignee intt id thereunder. ,a Delaware limited liability company, at certain Purchase Agreement dated as of e Site shall be conveyed to Assignee. ne l 11 of its duties under the OPA j ectiv y, the "Related Agreements") Nights and obligations of Assignor NOW, THEREFORE, the Agency, Assignor and Assignee hereby agree as follows: 1. Assignor hereby assigns all of/s right, title and interest in and to the OPA and any and all Related Agreements to Assignee and Assignee hereby accepts such assignment, and assumes all of the obligations of Assignor under the OPA, including but not limited to, all obligations related to the development of the Site as set forth therein, and any and all Related Agreements and agrees to be bound thereby in accordance with the terms thereof. 2. Assignee shall assume and perform all executory obligations of Assignor pursuant to the OPA and any and all/Related Agreements, without exception. The Agency hereby consents to and approves the assumption of the OPA and any and all Related Agreements by Assignee. 4. The principal' address of Assignee for purposes of the OPA and any and all Related Agreements/is as follows: KACG\HB\CENTER\A/sst Agt (OPA)4.doc 7-14-05 / c/o DJM Capital Partners, Inc. 60 S. Market St., Suite 1120 San Jose, CA 95113 Att: D. John Miller 5. Approval of this Assignment and Assumption Agreement by the Agency is expressly conditioned upon the full and complete execution of the "Construction Oversight Agreement" by and between Snyder Huntington Development, LLC!a California limited liability company and Assignor, in substantially the same form and substance as submitted to the Agency General Counsel's office on July 11, 2005. Any material modifications and/or amendments to the Construction Oversight Agreement shall be/approved in writing by the Agency and such approval shall not be unreasonably withheld. 6. Approval of this Assignment and Assumption Agreement by the Agency is expressly conditioned upon the full and complete execution of the "Completion Guaranty" by and between Assignor and J.H. Snyder Company, a California corporation, in favor of Assignee, in substantially the same form andsnbstance as submitted to the Agency General Counsel's office on July 11, 2005. Any in a m , difi - ti or amendments to the Completion Guaranty shall be approved in writ 13 b e y u h approval shall not be unreasonably withheld. t 7. Assignee agrees to diligently enforce� sue all of its remedies pursuant to the Completion Guaranty. p tY 8. Assignee acknowledges and agrees that the Schedule of Feasibility Gap Payments, attached to the OPA as Attachment No. 7 is' hereby null and void and that the Agency has no reimbursement obligations to Assignee as contemplated therein. 9. This Assignment and Assumption Agreement is made for the sole benefit and protection of the parties hereto, and their successors and assigns, and no other person or persons shall have any right of action or right to,/rely hereon. As this Assignment and Assumption Agreement contains all the terms and conditions agreed upon between the parties, no other agreement regarding the subject matter thereof, shall be deemed to exist or bind any party unless in writing and signed by the party to be charged. 10. This Assignment and Assumption Agreement may be executed in several duplicate originals, each of which shall be deemed an original, but all of which together shall constitute one and the same instrumrt, and shall become effective upon execution by the parties, as indicated by the signatures below. The signature pages of one or more counterpart copies may be removed from such counterpart copies and all attached to the same copy of this Assignment and Assumption Agreement, which, with all attached signature pages, shall be deemed to be an original agreement. When fully executed, the date of this Assignment and Assumption K:\CG\HB\CENTER\Asst Agt (OPA)4.doc 2 7-14-05 Agreement shall be the later of the dates indicated below. 11. This Assignment and Assumption Agreement shall be governed by the laws of of California. 12. If any term or provision of this Assignment and Assumption Agreement,//the deletion of which would not adversely affect the receipt of any material benefit by anyrparty hereunder, shall be held by a court of competent jurisdiction to be invalid o;unenforceable, the remainder of this Assignment and Assumption Agreement shall not be affected thereby and each other term and provision of this Assignment and Assumption . greement shall be valid and enforceable to the fullest extent permitted by law. It is the intention of the parties hereto that in lieu of each clause or provision of this Assignment and Assumption Agreement that is illegal, invalid or unenforceable, there be added as a part of this Assignment and Assumption Agreement an enforceable clause or provision as similar in/terms to such illegal, invalid or unenforceable clause or provision as may be possible. ,,/'r 13. 14 15. 16. Time is expressly declared to be of the essence Agreement. No provision in this against either party b The parties hereto hereby ag1 action as may be reasonably Assumption Agreement. The parties hereto further ref Assumption Agreement and and voluntarily. this Assignment and Assumption Agreement is to be interpreted for or p�e11tatives drafted such provision. such other dbomen ff N he purposes s and to take such other of this Assignment and 'and declare that they carefully read this Assignment and the contents thereof, and that they sign the same freely 17. Each party hereto hereby represents that the person executing this Assignment and Assumption Agreement on behalf of said party has full authority to do so and to bind the party to perform pursuant to the terms and conditions of this Assignment and Assumption Agreement. 19. Neither the assignment which is the subject of this Agreement nor anything in this Agreement shall be deemed to relieve Assignor of its duties and obligations as "Participant' under the OPA. 20. After a Release of Construction Covenants has been issued for the Site, the Assignor may submit to the Agency an application for release of its duties and obligations as Participant under the OPA and the Agency agrees to diligently and in good faith review any such application. K:\CG\HB\CENTER\Asst Agt (OPA)4.doc 3 7-14-05 /J "AGENCY" REDEVELOPMENT AGENCY OF CITY OF HUNTINGTON BEACH,, Dated: , 2005 tive ATTEST: Agency Secretary NO APPROVED AS TO FORM: Agency General Counsel ?,�, APPROVED AS TO FORM: Agency Special Counsel - KANE, BALLMER & BERI [Signatures continue on following page] KACMHB\CENTER\Asst Agt (OPA)4.doc 4 7-14-05 "Assignor" HUNTINGTON CENTER ASSOCIA By: Huntington Management Ent -,LLC, a Delaware limited liability company, Its Manager 7 By: BMLF/Huntington, LLC, a Delaware limited/liability company, Its Manager Dated: , 2005 By: $ryaR Timai 4=Fr4.% -tli�- $tyan £era 4 994 st- jtslbfanagor- Cristina Agra -Hughes, as Senior Vice President (•SCE 07�2 Si6n�si�-t,�+« �.9��' "A'ssignee" BELLA TERRA ASSOCIATES, LLC By: Bella Terra Borrower, LLC, a Delaware limited liability company, Its member i Dated. � By- D. John Miller, President B: y / Verlin Simmons, Its Independent Director K:\CG\HB\CENTER\Asst Agt (OPA)4.doc 5 7-14-05 Dated: , 2005 "Assignor" HUNTINGTON CENTER ASSOCIATES, LLC By: Huntington Management Ent , LLC, a Delaware limited liability company, Its Manager / By: BMLF/Huntington,�LLC, a Delaware limited liability company, Its Manager By: /Bryan Ezralow, Trustee of the Bryan Ezralow 1994 Trust Its Manager ( E� Oz —X169 SS/6 NA UX0 A9-6 oS TERRA ASSOCIATES, LLC �By: Bella Terra Borrower, LLC, a Delaware li ompany, Its member B D. hn filler, President Ve i Si m Its Independent Director ,� p K:\CG\HB\CENTER\Asst Agt (OPA)4.doc 5 7-14-05 Determination KANE. BALLMER & BERKMAN A LAW CORPORATtON 515 SOUTH FIGUEROA STREET, SUITE 1850 .LOS ANGELES, CALIFORNIA 90071 TELEPHONE (213) 617-0480 FAX (213) 625-0931 www.kbblaw.com June 30, 2005 VIA FAX Redevelopment Agency of the City of Huntington Beach c/o Leonie Mulvihill Office of the City Attorney 2000 Main Street, Fourth Floor Huntington Beach, CA 92648 RE: Letter of Determination regarding Assignment Dear Redevelopment Agency; Huntington Center/Bella Terra In regards to the proposed assignment of that certain Owner's Participation Agreement entered into on October 2, 2000 (the "OPA"), by and between the Redevelopment Agency of the City of Huntington Beach and Huntington Center Associates, LLC (the "Assignor") to Bella Terra Associates, LLC (the "Proposed Assignee"), the Proposed Assignee has submitted the following items in response to the applicable requirements set forth in Section 401 of the OPA: Pursuant to the OPA, the Proposed Assignee must demonstrate qualifications and experience with respect to the type of development proposed in the OPA equal or greater to that of the Assignor to assure the development and operation of the shopping center as specified in the�OPA (the "Site"). The Proposed Assignee has submitted information regarding six California projects that principals of the Proposed Assignee, through DJM Capital Partners, Inc., have been involved with along with a list of projects constructed by principal Lindsay Parton's construction company, Parton and Edwards, Inc. The Assignor and J.H. Snyder Company, LLC, have entered into a "Seller Completion Agreement in favor of Assignee whereby J.H. Snyder agrees to complete the construction of the Project. The Assignee has certain remedies against J.H. Snyder Company in the event the construction is not completed and has agreed to diligently pursue said remedies per the "Assignment and Assumption Agreement" of the OPA. 2. Operation and Management Experience: The OPA requires that the Proposed Assignee der management and operation of shopping centers similar to the Inc. has entered into a sub -management agreement with CB the joint management of the Site. The Proposed Assignee detailing CB Richard Ellis's management experience along properties that DIM Capital has managed. 3. Financial Evidence: Pursuant to the OPA, the Proposed resources or commitments adequate to assi accordance with the OPA as"Iahowi comparable to or exceeds thoAs financial evidence for the fivl in excess of One Hundred Million Doll complete construction of the Site, q7te o onstrate' experience in the Site/DJM Capital Partners, behard Ellis to provide for ,has submitted information with a brief description of ;ygnee must submit evidence of financial operation and development of the Site in that the Proposed Assignee's finances are 3r. The Proposed Assignee has submitted N ital, Inc. showing combined assets OF s so be held in escrow to a the ' nd Sale Agreement for the Site. As special counsel to the�Agency, we have d ` ermined that the Proposed Assignee has submitted all the information required pursuant to the OPA for Agency review of the proposed assignment. However, whether or not such information as to the Proposed Assignee's management and development experience and financial resources assures the Agency that the redevelopment of the Site will be completed in the manner, quality and as envisioned by the OPA, is a determination to be made by the Agency in its discretion. Sincerely, r Shannon McWhianey RCA ROUTING SHEET INITIATING DEPARTMENT: Economic Development SUBJECT: Approve Assignment Assumption Agreements for Bella Terra Associates, LLC for the Transfer of the Site and the Operation of the Parking Structure COUNCIL MEETING DATE: August 1, 2006 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) % Not Applicable Resolution (w/exhibits & legislative draft if applicable) , Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable Signed in full by the Cit ,Attorney) Attached Subleases, Third Party Agreements, etc. Approved as to form by City Attorney Not Applicable Certificates of Insurance (Approved by the City Attorney) Not Applicable Financial Impact Statement ( nbudget, over $5,000) Not Applicable Bonds (If applicable)AfnAl Not Applicable Staff Report (If applicable) / Not Applicable Commission, Board or Committe If a ) Not Applicable Findings/Conditions for Approval and Not Applicable EXPLANATION. FOR M19SYNG ATTACHMENTS dy REVIEWED RETURNED FORWAEZDEA Administrative Staff f Assistant City Administrator Initial City Administrator Initial City Clerk RCA Author: Runzel �1