HomeMy WebLinkAboutTHE WATERFRONT HOTEL, LLC, (DEVELOPER) AND CAPMARK FINANCE, INC. (FORMERLY GMAC COMMERCIAL MORTAGE CORPORATION, LENDER) - 2006-07-27 FIDELITY NATIONAL TITLE COMPANY
THIS DOCUMENT WAS DRAFTED BY
Recorded In Official Records, Orange County
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AND WHEN RECORDED RETURN TO: Tom Daly,Cl III �ClIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII IIIIIIClerk-Recorder
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Katten Muchin Rosenman LLP 2006000503302 04:30pm 07/27/06
1025 Thomas Jefferson St., NW 104 51 Al2 16
Suite 700 0.00 0.00 0.00 0.00 45.00 0.00 0.00 0.00
Washington, DC 20007
Attn: Christopher J. Hart, Esq.
Loan No. 01-1047977
l ESTOPPEL AGREEMENT REGARDING DEVELOPMENT AGREEMENT
THIS ESTOPPEL AGREEMENT REGARDING DEVELOPMENT AGREEMENT
("Agreement") is made and entered into as of the A745'day of July, 2006, by and between
CITY OF HUNTINGTON BEACH, a public body,corporate and politic(herein the "C t
THE WATERFRONT HOTEL,LLC, a California limited liability company("Developer");
and CAPMARK FINANCE INC., a California corporation(formerly known as GMAC
Commercial Mortgage Corporation; "Lender").
PRELIMINARY RECITALS:
A. City and Robert L. Mayer, as trustee of the Robert L. Mayer Trust of 1982, dated
June 22, 1982, as amended,have entered into a Development Agreement,recorded October 31,
1988 in the Recorder's Office of Orange County, California as Document No. 88-559291 (the
"Original Development Agreement")pursuant to which City and Mayer have entered certain
agreements thereunder with respect to the development of four defined tracts of real estate(the
"Site")consisting of the Ocean Grand Resort Portion(also known as Parcel A),the Residential
Parcel(also known as Parcel B), the Third Hotel Portion(also known as Parcel C), and the
Hilton Parcel. The Hilton Parcel (the"Property"), upon which the Waterfront Hilton hotel resort
is constructed, is more particularly described in Exhibit A attached hereto.
B. City and Mayer Financial, L.P. ("Mayer"), and Developer have entered into an
Amended and Restated Development Agreement dated as of September 28, 1998,recorded in the
Recorder's Office of Orange County, California as Document No. 19980838602 ("Development
Agreement"), which amends and restates in its entirety the Original Development Agreement,
and pursuant to which City and Mayer have entered certain agreements thereunder with respect to
the development of the Ocean Grand Resort Portion, the Residential Parcel, and the Third Hotel
Portion.
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C. City, Mayer and Developer have entered into that certain License Agreement to
Provide Landscaping and Other Improvements in the Public Right-of-Way dated February 20,
2001 and recorded in the Recorder's Office of Orange County, California as Document No.
20010232765 (the "License Agreement"),with respect to the landscaping and other
improvements in the public rights-of-way located adjacent to the Hilton Parcel and the Ocean
Grand Resort Portion.
D. Developer has made application to and Lender has agreed to loan to Developer the
sum of Thirty-Five Million and No/100 Dollars($35,000,000.00) (the "Loan")to refinance the
current debt secured by the Property and the improvements located thereon, and in furtherance
thereof, Developer and Lender have entered into or will be entering into certain Loan Documents
("Loan Documents")wherein Lender will disburse the Loan to Developer under the conditions
contained therein.
E. As security for the repayment of the Note,Developer will be executing and
delivering to Fidelity National Title Insurance Company, as trustee, for the benefit of Lender its
Leasehold Deed of Trust, Assignment of Leases and Profits, Security Agreement and Fixture
Filing of even date herewith(herein the "Deed of Trust")conveying the Property in trust to
Fidelity National Title Insurance Company, as trustee, for the benefit of Lender.
F. As further security for the Loan and as a condition to its disbursement of the
proceeds of the Loan, Lender has required that City provide certain assurances to Lender.
NOW THEREFORE,the parties agree as follows:
1. The Development Agreement remains in full force and effect and has not been
modified, supplemented or amended in any respect,whether in writing or orally, and no uncured
default currently exists thereunder.
2. City acknowledges and agrees that for purposes of the development of the
Property,Developer shall be the "Developer" of the same as set forth in the Development
Agreement and is entitled to all of the benefits of the "Developer"under the Development
Agreement insofar as it affects or relates to the Property and Developer is responsible for only
those obligations imposed under the Development Agreement insofar as they relate to
development of the Property.
3. City recognizes Lender as a"Mortgagee" (as defined in the Development
Agreement). As a recognized Mortgagee Lender is entitled to all of the rights and benefits
contained in Section 3.4 Mortgagee Protection of the Development Agreement.
4. No default by Mayer or any other developer under the Development Agreement
with respect to the Residential Parcel, Third Hotel Portion or the Ocean Grand Resort Portion
shall constitute a default by Developer with respect to the Property and no termination of the
Development Agreement or exercise of remedies by City by reason of a default by Mayer or any
W AS01 41646060 4 20751 100057 7/26/2006 12:05 PM
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other developer under the Development Agreement with respect to the Residential Parcel, Third
Hotel Portion or the Ocean Grand Resort Portion shall constitute a default by Developer with
respect to the Property nor entitle City to terminate the Development Agreement or exercise any
of its remedies thereunder as they relate to the Property. As of the date hereof there are no
defaults under the Development Agreement in connection with the Property, and no event(other
than payments due but not yet delinquent)which,with the passage of time or with notice and the
expiration of any grace or cure period,would constitute a default under the Development
Agreement in connection with the Property.
5. No termination of the Development Agreement by Mayer or any other developer
under the Development Agreement as to the Residential Parcel,Third Hotel Portion or the Ocean
Grand Resort Portion shall terminate the Development Agreement insofar as it relates to the
Property.
6. Subject to City's rights and obligations under the Development Agreement during
a default thereunder, so long as there is no default under the Development Agreement,City shall
not consent to a mutual termination,modification or amendment of the Development Agreement
insofar as it affects the Property without the prior written consent of Lender.
7. City acknowledges and agrees that the terms,provisions and conditions of the
Original Development Agreement applicable to the Hilton Parcel have been satisfied and that the
sole provisions applicable to the Hilton Parcel are set forth in Section 3.5 of the Development
Agreement.
8. As of the date hereof there are no defaults under the License Agreement, and no
event which, with the passage of time or with notice and the expiration of any grace or cure
period,would constitute a default under the License Agreement in connection with the Property.
9. City acknowledges and agrees that the collateral assignment of the interest of
Developer under the License Agreement to Lender in connection with the Loan and the
assignment of Developer's ground leasehold interest to the Lender for collateral security purposes
is a permitted assignment under the terms of the License Agreement.
10. City agrees to give to Lender any notices City is required to give to Developer
under the Development Agreement and the License Agreement and shall notify Lender of any
default by Developer under the Development Agreement and License Agreement and Lender
shall have the same rights as Developer to cure such default as provided in the Development
Agreement and License Agreement. Notwithstanding the foregoing, City shall not be required to
deliver any notices to Lender or notify Lender of any default, and Lender shall have no right to
cure such default unless Lender shall have first complied with the terms of Section 3.4.2(c) of the
Development Agreement. Any notices required hereunder shall be provided in the manner and
form required under the Development Agreement and License Agreement, as applicable, and
shall be addressed as follows:
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To Lender: Capmark Finance Inc.
200 Witmer Road
Horsham,Pennsylvania 19044
Attention: Servicing-Executive Vice President
Loan No. 01-1047977
With a copy to: Katten Muchin Rosenman LLP
1025 Thomas Jefferson Street,N.W.
Washington, D.C. 20007-5201
Fax No.: (202)298-7570
Attn.: Christopher J. Hart,Esq.
To City: City of Huntington Beach
City Hall
2000 Main Street
Huntington Beach, California 92684
Attn: Stanley Smalewitz,Director of Economic Development
To Developer: The Waterfront Hotel,LLC
c/o The Robert Mayer Corporation
660 Newport Center Drive
Suite 1050
Newport Beach,California 92660
Attn: Robert L. Mayer,Jr. and Stephen K. Bone
11. Notwithstanding the place of execution of this instrument,the parties to this
instrument have contracted for California law to govern this instrument and it is controllingly
agreed that this instrument is made pursuant to and shall be construed and governed by the laws
of the State of California without regard to the principles of conflicts of law.
12. This Agreement and each and every covenant, agreement and other provision
hereof shall be binding upon and shall inure to the benefit of Lender, Developer, City and their
respective successors and assigns.
13. The unenforceability or invalidity of any provisions hereof shall not render any
other provision or provisions herein contained unenforceable or invalid.
14. This Agreement may be executed in any number of counterparts which together
shall constitute one and the same instrument.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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WAS01 41646060 4 207511 00057 7/26/2006 12:05 PM -
IN FURTHERANCE,this Agreement is executed as of the date first above-written.
DEVELOPER:
THE WATERFRONT HOTEL,LLC, a California
limited liability company
By: Waterfront Development, Inc., a California
corporation, its mana er
By:��
L-13, -
Name: Step en K. Bone
Title: President
CITY:
CITY OF HUNTINGTON BEACH, a public body
corporate and politic
By:
Name: Dr. Penelope Culbreth-Graft
Its: City Administrator
Approved as to Form: Signed In Counterpart
City Attorney
Approved as to Form:
Kane Ballmer&Berkman,
City Special Counsel
LENDER:
CAPMARK FINANCE INC. a California corporation
By:
Name: Lewis L. Delafield
Title:
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IN FURTHERANCE,this Agreement is executed as of the date first above-written.
DEVELOPER:
THE WATERFRONT HOTEL,LLC,a California
limited liability company
By: Waterfront Development, Inc., a California
corporation,its manager
By:
Name: Stephen K. Bone
Title: President
CITY:
Signed in Counterpart
CITY OF HUNTINGTON BEACH, a public body
corporate and politic
By:
N e: Dr. Penelope Culbreth-Graft
Its: City Administrator
A mroved as to Form:
jity�At�tomey'
Ap rrovedasto Form:
Kane all erg& er an,
City S cial Counse
LENDER:
CAPMARK FINANCE INC. a California corporation
By:
Name: Lewis L. Delafield
Title:
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IN FURTHERANCE, this Agreement is executed as of the date first above-written.
DEVELOPER:
THE WATERFRONT HOTEL, LLC, a California
limited liability company
By: Waterfront Development, Inc., a California
corporation, its manager
By:
Name: Stephen K. Bone
Title: President
CITY:
CITY OF HUNTINGTON BEACH, a public body
corporate and politic
By:
Name: Dr. Penelope Culbreth-Graft
Its: City Administrator
Approved as to Form:,
City Attorney
Approved as to Form:
Kane Ballmer&Berkman,
City Special Counsel
LENDER:
CAPMARK FINANCE lifornia corporation
By:
Name: ewis . De afield
Title:
STATE OF CALIFORNIA ) SENIOR VICE PRESIDEN1
WAS01 41646060 3 20751 100057 7/17/2006 3:41 PM
STATE OF k Q�- )
//�� ) ss.
COUNTY OFO%(( k("QAq\ )
On July LOA' , 2006, before me, the undersigned, a Notary Pq�lic in and for said County
and State,personally appeared Lewis L. Delafield, the Qc V 1C.e of
CAPMARK FINANCE INC., a California corporation,personally known to me(or proved to me
on the basis of satisfactory evidence)to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
KIMBERLY S. KOVACH
(SEAL) Notary Public
Commonwealth of Virginia
My Comm. Exps. Jan. 31, 2009
1t
WAS01_41646060 3_207511_000577/17/20063:41 PM
8
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
On July 2(0,2006,before me,Rex Morishita,Notary Public,personally appeared Stephen
K. Bone,the President of Waterfront Development,Inc., a California corporation,the Manager of
THE WATERFRONT HOTEL,LLC,a California limited liability company,personally known to me
e) to be the person(s) whose name(s) is/.are
subscribed to the within instrument and acknowledged to me that he/sheftirey executed the same in
his/kerb h& authorized capacity(4es), and that by his4wfAkair signature( on the instrument the
person(&), or the entity upon behalf of which the person(-s)acted, executed the instrument.
WITNESS my hand and official seal.
REX MORISHITA `
Commmlon*1414842
-� Notary�C California Signature(Notary)
ty
My Comm.ExplresMay 1,2007 My Commission Expires:
(SEAL)
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On July_ 006,before me, ,Notary P blic,personally appeared
,the Administra r of the CITY OF HUNTIN ON BEACH,a public ody
corporate and litic,personally kno to me(or proved to me on t basis of satisfactory e ' ence)
to be the pe on(s) whose name(s) ' /are subscribed to the withi instrument and ackno edged to
me that a/she/they executed a same in his/her/their a orized capacity(ies) and that by
his/her/ eir signatures) on t e instrument the person(s), r the entity upon be f of which the
pers (s) acted, executed t instrument.
WITNESS my d and official seal.
Signature(Notary)
My Commission Expires:
(SEAL)
WAS01 41646060 4 207511 00057 7/26/2006 12:05 PM
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
/e)to
July ,2006,before me,the undersig , a Notary Public in and for said County
per nally appeared Stephen K. Bone a President of Waterfron evelopment,
l' rnia corporation, the Manager o HE WATERFRONT HO , LLC, a California
bility company,personally kno to me(or proved to me o e basis of satisfactory
to be the person whose name ' subscribed to the within i trument and acknowled
he executed the same in ' authorized capacity, and t by his signature on the
t the person, or the enti upon behalf of which the rson acted, executed the
t.
WITNESS my h and official seal.
Signature(Notary)
My Commission Expires:
(SEAL)
STATE OF CALIFORNIA )
)Ss.
COUNTY OF ORANGE )
On JulK,2006,before me, personally appeared
L^ e Administrator of the CITY OF HUNTINGTON BEACH,a public
body corporate and politic, personally known to me(or proved to me on the basis of satisfactory
evidence)to be the person whose name is subscribed to the within instrument and acknowledged
to me that he executed the same in the authorized capacity,and that by his signature on the
instrument the person, or the entity upon behalf of which the person acted,executed the
instrument.
WITNESS my hand and official seal.
r K. COPELAND I
COMM.#1409904
-
V n NOTARY PUBLIC-CAUFORNIA 0 Si ture(Notary)
�.. ORANGE COUNTY n M Commission Expires:
0� MY COMM.EXPIRES APRIL 8,2007 j Y P
(SEAL)
WASOI 41646060 5 207511 00057 7/2612006 12:29 PM
EXHIBIT A
Legal Description of Hilton Parcel
(attached hereto)
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PARCEL 1:
LOT 1 OF TRACT NO. 13045, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE
OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 628, PAGES 46 AND 47 OF MISCELLANEOUS
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT ANY AND ALL OIL,OIL RIGHTS,PETROLEUM, MINERALS,MINERAL RIGHTS,NATURAL GAS
RIGHTS, AND OTHER HYDROCARBON SUBSTANCES BY WHATSOEVER NAME KNOWN,
GEOTHERMAL RESOURCES (AS DEFINED IN CALIFORNIA PUBLIC RESOURCES CODE, SECTION
6903), AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING THAT MAY BE WITHIN OR
UNDER THE LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING,
PROSPECTING AND OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME FROM THE
PREMISES OR ANY OTHER LAND,INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL
AND MINE FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS
AND SHAFTS INTO,THROUGH OR ACROSS THE SUBSURFACE OF THE PREMISES,AND TO BOTTOM
SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND
BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER,
THE RIGHT TO ENTER, DRILL,MINE,STORE, EXPLORE OR OPERATE ON OR THROUGH THE SURFACE
OR THE UPPER 500 FEET OF THE SUBSURFACE OF THE PREMISES, AS SET FORTH IN A LEASE
DATED APRIL 28, 1989 AND MEMORANDUM RECORDED APRIL 28, 1989 AS INSTRUMENT NO.
89-225546, OFFICIAL RECORDS.
ALSO EXCEPT ANY AND ALL WATER, WATER RIGHTS OR INTERESTS THEREIN, NO MATTER HOW
ACQUIRED BY LESSOR, TOGETHER WITH THE RIGHT AND POWER TO EXPLORE, DRILL, REDRILL,
REMOVE AND STORE THE SAME FROM THE PREMISES OR TO DIVERT OR OTHERWISE UTILIZE
SUCH WATER, WATER RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED OR LEASED BY
LESSOR, WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE,
PERCOLATING, LITTORAL, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR CONTRACTUAL; BUT
WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF THE PREMISES IN THE
EXERCISE OF SUCH RIGHTS AND PROVIDED FURTHER,THAT THE EXERCISE OF ANY SUCH RIGHTS
BY LESSOR SHALL NOT RESULT IN ANY DAMAGE OR INJURY TO THE IMPROVEMENTS, INCLUDING
WITHOUT LIMITATION ANY SUBSIDENCE OF ALL OR ANY PART OF THE IMPROVEMENTS, AS SET
FORTH IN A LEASE DATED APRIL 28, 1989 AND MEMORANDUM RECORDED APRIL 28, 1989 AS
INSTRUMENT NO. 89-225546, OFFICIAL RECORDS.
PARCEL 2:
THAT PORTION OF THE NORTH HALF OF THE NORTHEAST QUARTER OF SECTION 14, TOWNSHIP
6 SOUTH, RANGE 11 WEST, IN THE RANCHO LAS BOLSAS, IN THE CITY OF HUNTINGTON BEACH,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 51, PAGE 14 OF
MISCELLANEOUS MAPS,IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT IN THE SOUTH LINE OF SAID NORTH HALF THAT IS DISTANT THEREON
NORTH 89o43'07" EAST 103.28 FEET FROM CENTERLINE OF HUNTINGTON STREET, AS SHOWN
ON RECORD OF SURVEY NO. 81-1151, FILED IN BOOK 103, PAGES 28 AND 29 OF RECORDS OF
SURVEY IN THE OFFICE OF SAID COUNTY RECORDER, SAID POINT BEING ON A NON-TANGENT
2355.00 FOOT RADIUS CURVE THAT IS CONCAVE SOUTHWESTERLY, A RADIAL TO SAID POINT
BEARS NORTH 31-o56'15" EAST; THENCE NORTHWESTERLY 5.94 FEET ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 0o08'40" TO THE BEGINNING OF A 32.00 FOOT RADIUS CURVE
THAT IS CONCAVE SOUTHERLY; THENCE WESTERLY 41.11 FEET ALONG SAID CURVE THROUGH
A CENTRAL ANGLE OF 73o36'25" TO SAID SOUTH LINE; THENCE NORTH 89o43'07" EAST 43.24
FEET ALONG SAID SOUTH LINE TO THE POINT OF BEGINNING.
PARCEL 3:
REAL PROPERTY RIGHTS AS CONTAINED IN THAT CERTAIN DOCUMENT ENTITLED "LICENSE
AGREEMENT TO PROVIDE LANDSCAPING AND OTHER IMPROVEMENTS IN THE PUBLIC RIGHT-OF-
WAY" EXECUTED BY AND BETWEEN THE CITY OF HUNTINGTON BEACH, A MUNICIPAL
CORPORATION OF THE STATE OF CALIFORNIA, THE WATERFRONT HOTEL, LLC, A CALIFORNIA
LIMITED LIABILITY COMPANY AND MAYER FINANCIAL, L.P.,A CALIFORNIA LIMITED PARTNERSHIP
DATED FEBRUARY 20, 2001 AND RECORDED APRIL 18, 2001 AS INSTRUMENT NO. 20010232765
OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA, SUBJECT TO THE TERMS,COVENANTS
AND CONDITIONS CONTAINED THEREIN.
Assessor's Parcel No: 024-252-02
Government Code 27361.7
I certify under the penalty of perjury that the notary seal on
this document read as follows:
Name of Notary: REX MORISHITA
Date Commission Expires: MAY 1, 2007
County where bond is Filed: ORANGE
Commission No.: 1414842
Manufacturer/Vendor No.: NNA1
Place of execution - Newport Beach Date - July 26, 2006
FIDELITV NATIONAL TITLE COMPANY
Government Code 27361.7
I certify under the penalty of perjury that the notary seal on
this document reads as follows:
Name of Notary: Kimberly S. Kovach
Date Commission Expires: 1/31/2009
County where bond is Filed: Arlington,Virginia
Commission No.: N/A
Manufacturer/Vendor No.: N/A
Place of execution-Newport Beach Date- July 27,2006
FIDSLITY NATO AL TI E COM ANY
+ r ,
I CERTIFY THAT,IF THIS SEAL IS AFFIXED Fc
IN PURPLE INK,THIS IS A TRUE AND S COUNWAW RECORDER
CORRECT COPY OF THE PERMANENT RECORD
FLED OR RECORDED IN MPT r J !
,BAN 19 2007 ycf����.���� ORANGE COUWY PAR OFCALIFOR1ilA
DATE FEE
In INS' 1006 AUG - I P11 3: 0 7
V" CITY OF HUNTINGTON BEACH
Inter-Department Communicationva':� ' `"
TO: JOAN FLYNN, City Clerk
FROM: JENNIFER MCGRATH, City Attorney
DATE: July 26,2006
SUBJECT: Hilton Waterfront Refinance
Attached please find a copy of the following documents:
I. Estoppel Agreement Regarding Ground Lease between the Redevelopment
Agency, The Waterfront Hotel, LLC and Capmark Finance; and
2. Estoppel Agreement Regarding Development Agreement between the City of
Huntington Beach, The Waterfront Hotel, LLC and Capmark Finance, Inc.
The originals of these documents will follow shortly.
i
ENNIFER MCGRATH,
City Attorney
/k
Attachments as above
c: Stanley Smalewitz, Director of Economic Development
(w/attachments)
g/mubhill/06memos/hilton docs