HomeMy WebLinkAboutWATERFRONT HOTEL, LLC (DEVELOPER AND CAPMARK FINANCE, INC. (FORMERLY GMAC COMMERCIAL MORTGAGE CORPORATION, LENDER) - 2006-07-27FIDELITY NATIONAL TITLE COMPANY
THIS DOCUMENT WAS DRAFTED BY
AND WHEN RECORDED RETURN TO:
Katten Muchin Rosenman LLP
1025 Thomas Jefferson St., NW
Suite 700
Washington, DC 20007
Attn: Christopher J. Hart, Esq.
Loan No. 01-1047977
CP �Zw
Recorded In Official Records, Orange County
Tom Daly, Clerk -Recorder
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ESTOPPEL AGREEMENT REGARDING GROUND LEASE
THIS ESTOPPEL AGREEMENT REGARDING GROUND LEASE ("Agreement")
is made and entered into as of the ' 74IN$ay of July, 2006, by and between the
REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public
body, corporate and politic (herein the "Agenc "); 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. The Agency is the landlord under that certain Lease dated April 28, 1989, by and
between Agency, as lessor, and Waterfront Construction #1, a California limited partnership
("Original Tenant") as lessee, a memorandum of which was recorded on April 28, 1989 in the
Official Records of the Orange County Recorder as Instrument No. 89-225546, as assigned by
Original Tenant to Developer pursuant to that certain Lease Assignment and Assumption
Agreement dated July 3, 1997 and recorded on July 17, 1997 in the Official Records of the
Orange County Recorder as Instrument No. 97-0338159 (the "Ground Lease") with respect to the
land illustrated and esiignnated as "The Hilton Parcel' on Exhibit A attached hereto (the
"Property") �`i_pval i"�_ G V-*`i0-M 0-y" �lc�l i�i} 1t0►� ul
B. The Agency and Mayer Financial, L.P., as developer ("M_ave ") have entered into
an Amended and Restated Disposition and Development Agreement dated as of September 14,
1998 ("Original Agreement"), as amended by that certain First Implementation Agreement to
Amended and Restated Disposition and Development Agreement dated as of May 15, 2000
("First Implementation Agreement") and as further amended by Second Implementation
Agreement to Amended and Restated Disposition and Development Agreement dated as of
February 5, 2001 ("Second Implementation Agreement") (the Original Agreement as amended
by the First Implementation Agreement and Second Implementation Agreement being herein
referred to as the "DDA") pursuant to which the Agency will effectuate the development and
operation of the "Site" consisting of land designated as Parcel A, Parcel B, and Parcel C, as
applicable, and as illustrated and designated on Exhibit A attached hereto.
WAS01_41646051_4_207511_00057
C. The Developer has acquired the interest of Mayer in the DDA insofar as the DDA
relates to and affects the Property and the Agency has consented to such acquisition and
acknowledged and agreed that for purposes of the development of the Property the Developer
shall be the "developer" of the same as set forth in the DDA and is entitled to all of the benefits
of the "developer" under the DDA insofar as it affects or relates to the Property.
D. The Developer has made application to and the Lender has agreed to loan to the
Developer the sum of up to 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. To evidence the Loan the Developer has or will be executing and delivering to the
Lender its Deed of Trust Note in the amount of the Loan (herein the "Note").
F. As security for the repayment of the Note, the Developer has or 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 the Lender.
G. The parties are executing this Agreement for the purpose of setting forth certain
understandings with respect to the mortgaging of the leasehold estate created under the Ground
Lease.
NOW THEREFORE, in consideration of the making of the Loan it is agreed as follows:
1. The aforesaid Recitals are incorporated herein.
A true and correct copy of the Ground Lease is on file with the City of Huntington
Beach.
3. The Ground Lease remains in full force and effect in accordance with its terms
and together with the DDA constitutes the entire agreement between the Agency and Developer
with respect to the leasing of the Property and:
(a) The Ground Lease has not been modified, supplemented or amended in
any respect;
(b) Other than the Ground Lease, the DDA, and that certain License
Agreement to Provide Landscaping and other Improvements in the Public
Right of Way dated February 20, 2001 between the City of Huntington
Beach, Developer and Mayer Financial, L.P. which was recorded on April
18, 2001 as Instrument No. 20010232765, there are no other agreements
or understandings, whether written or oral, between Developer and
Agency with respect to the Ground Lease or the Property.
WAS01_41646051_4_207511_00057
2
(c) Other than the Loan, neither Agency nor, to the best of Agency's
knowledge, Developer, has assigned, transferred or pledged the Ground
Lease or sublet the Property.
(d) As of the date hereof there are no defaults under the Ground Lease by
Agency.
(e) The rent and all other payments due to Agency under the Ground Lease
are current in all respects.
(f) Agency has not received written notice of any pending eminent domain
proceedings or other governmental actions or judicial actions against
either Agency's or, to the best of Agency's knowledge, Developer's interest
in the Property, including, without limitation, actions relating to violations
of any environmental laws.
(g) With the exception of the requirement that Developer obtain the written
consent of Agency as to the transfer by The Robert Mayer Corporation
and the Robert L. Mayer Trust dated June 22, 1982 of their interests in
Developer to Mayer Financial, L.P., as of the date hereof, there are no
defaults under the Ground Lease by Developer.
Whenever the statement herein is qualified "to the best of Agency's knowledge," it is
intended to indicate that, no information has been received by an Agency officer that would give
him or her actual knowledge of the inaccuracy of such statement. The Agency officers have not
undertaken any independent investigation to determine the accuracy of such statements, and any
limited inquiry undertaken by Agency officers during the preparation of this Agreement should
not be regarded as such investigation. The Agency officers have made no search, inquiry,
investigation or other examination concerning the records or files of any court, public board or
body, or other public records, and the statements as expressed herein do not extend to any matter
which might be disclosed as a result of any further search, inquiry, investigation or other
examination.
4. The Agency is the current holder of the landlord's interest in the Ground Lease
and has not assigned or transferred its interest in the Ground Lease to any other person or entity
nor has it mortgaged, encumbered or otherwise subjected its interest in the Ground Lease to the
lien of any security instrument which has priority over the rights of the Developer under the
Ground Lease.
5. The Agency acknowledges that Developer is executing and delivering to Lender
the aforesaid Deed of Trust encumbering and conveying the Developer's interest in the Ground
Lease as security for the aforesaid Loan and, to the extent the consent of the Agency is required
for such act on the part of the Developer, the Agency consents to the same including the
mortgaging and conveying of the Developer's leasehold estate in the Ground Lease, the leasehold
improvements and related security and collateral agreements to and for the benefit of Lender.
Notwithstanding the foregoing, with the exception of the Loan Documents, Agency is not
consenting in this Agreement to any future FF&E financing, subordinate financing or future
WASOI_41646051_5_207511_00057
3
franchise agreement, management agreement or rebranding of the Property that would otherwise
require the consent of Agency under the Ground Lease.
6. The Agency acknowledges that the requirement of Section 2.2 of the Ground
Lease that the Agency approve a franchise agreement has been satisfied by the execution and
delivery of (a) that certain franchise agreement between Waterfront Construction #1 and Hilton
Inns, Inc., a Delaware corporation, together with Addendum to License Agreement and License
Fee Rider dated March 1, 1990 and attached thereto, as modified by (i) Order Approving
Stipulation Re Modification and Assumption of Executory Contract, entered June 6, 1995, Case
No. SA 93-13942-JB, United States Bankruptcy Court for the Central District of California; (ii)
Amended and Restated Addendum to License Agreement dated as of September 1, 1996; (iii)
Amended and Restated License Fee Rider dated as of September 1, 1996; (iv) Amendment to
License Agreement dated as of January 1, 1997; as assigned to Grantor by Franchisee
Assignment and Assumption (Waterfront Hilton Beach Resort) between Waterfront Construction
41 as Assignor and Grantor as Assignee and consented to by Hilton Inns, Inc. as of July 3, 1997,
dated as of July 17, 1997; and (v) Amendment to Amended and Restated Addendum to License
Agreement dated as of November 14, 2000, and (b) that certain Hotel Management and
Operating Agreement dated as of January 2, 1991 by and between Waterfront Construction #1,
as owner, and Destination Properties, Inc., a California corporation (which subsequently changed
its name to Waterfront Resorts, Inc., a California corporation), as amended by (i) the First
Amendment to Hotel Management and Operating Agreement dated as of August 31, 1995 by and
between Waterfront Construction #1 and Waterfront Resorts, Inc., as assigned to Developer by
Assignment and Assumption of Management Agreement dated as of July 3, 1997, and (ii) the
Second Amendment to Hotel Management and Operating Agreement dated as of July 25, 1997,
and that there will be no other franchise agreement with respect to the Property.
7. The Agency agrees that the Lender is an approved "Lender" within the terms and
conditions of Section 17.2 of the Ground Lease and shall be entitled to all the rights, benefits and
privileges afforded to a "Lender" under the Ground Lease including those contained in Article 17
and upon a trustee's sale or foreclosure of the Deed of Trust or deed in lieu thereof shall
recognize Lender as tenant in accordance with Section 17.3(h) of the Ground Lease and shall
provide the services of landlord for the benefit of Lender, its successors and assigns.
8. In furtherance and not in limitation of Section 12.3 of the Ground Lease, the
Agency acknowledges that:
(a) foreclosure of any future mortgage or deed of trust encumbering Agency's
fee interest in the Property shall not terminate or disturb the rights of the
tenant under the Ground Lease, or the rights of any leasehold mortgagee,
including Lender, so long as tenant or such leasehold mortgagee is not
then in default (after applicable notice and cure periods) under the Ground
Lease; and
(b) Agency shall cause a copy of any written default notices sent by a fee
mortgagee to Agency to be sent to the tenant under the Ground Lease and
such leasehold mortgagee, including Lender.
WAS01_41646051_4_207511_00057
4
9. The Agency shall provide Lender with any notices that it is required to provide to
Lender, as mortgagee, under the Ground Lease, including, without limitation, those notices to be
provided under Section 17.3 (b), (d), and (e) of the Ground Lease.
10. Agency has previously acknowledged the assignment to the Developer by Mayer
of all its right, title and interest in and to the DDA (as it relates to the Property) and the Ground
Lease and the execution and delivery by the Developer of the Ground Lease.
1 l . The Agency has recorded and delivered to Developer a Certificate of Completion
on October 8, 1992 and that the same constitutes evidence of satisfactory completion of all
construction and development related to the Property and required under the DDA or under the
Ground Lease.
12. Intentionally Deleted.
13. Any notices and other communications permitted or required by the provisions of
this Agreement (except for telephonic notices expressly permitted) shall be in -writing and shall
be deemed to have been properly given or served by depositing the same with the United States
Postal Service, or any official successor thereto, designated as Certified Mail, Return Receipt
Requested, bearing adequate postage, or deposited with reputable private courier or overnight
delivery service, and addressed as hereinafter provided. Each such notice shall be effective upon
being deposited or delivered as aforesaid. The time period within which a response to any such
notice must be given, however, shall commence to run from the date of receipt of the notice by
the addressee thereof. Rejection or other refusal to accept or the inability to deliver because of
changed address of which no notice was given shall be deemed to be receipt of the notice sent.
By giving to the other party hereto at least ten (10) days' notice thereof, either party hereto shall
have the right from time to time to change its address and shall have the right to specify as its
address any other address within the United States of America. Each notice shall be addressed as
follows:
To the 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.
WAS01_41646051_4_207511_00057
To the Agency:
Redevelopment Agency of the City of Huntington Beach
City Hall
2000 Main Street
Huntington Beach, California 92684
Attn: Stanley Smalewitz, Deputy Executive Director
To the Developer:
The Waterfront Hotel, LLC
c/o The Robert Mayer Corporation
Suite 1050
660 Newport Center Drive
Newport Beach, California 92660
Attn: Robert L. Mayer, Jr. and Stephen K. Bone
14. The Agency acknowledges that pursuant to the terms of the documents governing
the Loan, the Developer has conveyed, granted and assigned to Lender all of the Developer's
right to amend, modify, terminate or surrender the Ground Lease and the Agency shall abide by
the restrictions on amendment, modification, termination or surrender contained in Section 17.3
(a) of the Ground Lease.
15. The Agency acknowledges that it has been provided for its inspection and review
a copy of the Deed of Trust and the Note evidencing the debt secured thereby and approves the
same.
16. The Agency shall provide to the Lender estoppel certificates from time to time
upon reasonable request and without charge certifying such correct information as the Lender
may reasonably request.
17. In furtherance and not in limitation of the Agency's agreement in Section 12.3 of
the Ground Lease, the Agency agrees as follows for the benefit of Developer, as lessee, with
respect to any mortgages or deeds of trust placed upon the fee of the Site after the date of this
Agreement, (i) the leasehold estate granted by the Ground Lease shall not be affected in any
manner by any foreclosure action, trustee's sale or other action taken or proceeding commenced
under or in connection with any mortgages or deeds of trust placed upon the fee of the Site (as
defined in the DDA) by Agency, or by any taking of possession of the Site pursuant thereto, or
by the exercise of any rights or remedies in connection therewith; (ii) if the interest of lessor
under the Ground Lease is transferred in connection with any foreclosure action, trustee's sale or
other proceedings brought under any mortgages or deeds of trust placed upon the fee of the Site
by Agency (including, without limitation, any transfer by deed in lieu of foreclosure), then, so
long as lessee is not in default in the performance of the terms, covenants and conditions of the
Ground Lease beyond all applicable notice, grace and cure periods, the transferee of any such
interest of lessor (including, without limitation, the holder of any such mortgage or deed of trust),
together with its successors and assigns (collectively, "Lessor's Transferee"), shall not terminate
the Ground Lease or interfere with or disturb lessee in its possession, use, occupancy or quiet
WAS01_41646051_4_207511 00057
enjoyment of the Site under the Ground Lease, for the remaining term of the Ground Lease (as
the same may be earlier terminated pursuant to any other Article of the Ground Lease), subject to
all of the terms, covenants and conditions of the Ground Lease; and (iii) any Lessor's Transferee
will accept the attonunent of lessee and will assume and perform all of lessor's obligations under
the Ground Lease for the benefit of lessee and its successors and assigns so long as lessee attorns
to Lessor's Transferee and performs all of lessee's obligations under the Ground Lease for the
benefit of Lessor's Transferee and its successors and assigns.
18. 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 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.
19. This Agreement and each and every covenant, agreement and other provision
hereof shall be binding upon and shall inure to the benefit of the Lender, the Developer, the
Agency and their respective successors and assigns.
20. The unenforceability or invalidity of any provisions hereof shall not render any
other provision or provisions herein contained unenforceable or invalid.
21. This Agreement may be executed in any number of counterparts which together
shall constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS.]
WAS01_41646051_4_207511_00057
7
IN FURTHERANCE, this Agreement is executed as of the date first above -written.
Approved as to Form:
THE WATERFRONT HOTEL, LLC, a California limited liability
company
By: Waterfront Development, Inc., a California
corporation, its manager
By: a
Name: Stephen R. Bone
Title: President
REDEVELOPMENT AGENCY OF THE CITY
OF HUNTINGTON BEACH, a public body, corporate and politic
By:
Name: Dr. Penelope Culbreth-Graft
Its: Executive Director
Signed in Counterpart
Agency General Counsel
Approved as to Form
Kane Ballmer & Berkman,
Agency Special Counsel
CAPMARK FINANCE INC.,
a California corporation
By:
Name: Lewis L. Delafield
Title:
WAS01_41646051_4_207511_00057
8
IN FURTHERANCE, this Agreement is executed as of the date first above -written.
THE WATERFRONT HOTEL, LLC, a California limited liability
company
By: Waterfront Development, Inc., a California
corporation, its manager
By:
Name:
Title:
Stephen K. Bone
President
$ in Coin REDEVELOPMENT AGENCY OF THE CITY
OF HUNTINGTON BEACH, a public body, corporate and politic
By:
Nam ADr. Penotope Culbreth-Graft
Its: Executive Director
A
d as to Form:
enera Counsel
as to Form
Kane
CAPMARK FINANCE INC.,
a California corporation
By:
Name: Lewis L. Delafield
Title:
WASOI 41646051_5_207511_00057
8
IN FURTHERANCE, this Agreement is executed as of the date first above -written.
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
REDEVELOPMENT AGENCY OF THE CITY
OF HUNTINGTON BEACH, a public body, corporate and politic
By:
Name: Dr. Penelope Culbreth-Graft
Its: Executive Director
Approved as to Form:
Agency General Counsel
Approved as to Form
Kane Ballmer & Berkman, Corm /vaw�-
Agency Special Counsel
CAPMARK FINANCE INC.,
a California corporation
By:
Name: Lewis L. Delafield
Title: I &S I DELAFIELD
SENIOR VICE PRESIDENT
WAS01_41646051_3_207511_00057
8
STATE OF OL)
//��
) ss.
COUNTY OF GL 1 )
On July\% 2006, before me, the undersigned, a Notary Public in and for said County and
State, personally appeared Lewis L. Delafield, the Authorized Signatory 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. PQ ( C
Notary Public
KIMBERLY S. KOVACH
(SEAS,) . Notary Public
Commonwealth of Virginia
My Comm. ExpS. Jan. 31, 2009
,,0
WAS01_41646051_3_207511_00057
10
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
On July 2fo, 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 ) to be the person(e) whose
names) is/are- subscribed to the within instrument and acknowledged to me that he/&heAhey
executed the same in his/h464h6r authorized capacity(i*, and that by his/herrAh& signature(4
on the instrument the person(s), or the entity upon behalf of which the persons acted, executed
the instrument.
WITNESS my hand and official seal.
REX MORISHITA
Commlaslon # 1414842
N0kry Pubic - Coldoinlo
5
0orange County
My Comm. Explrea May 1.2007
(SEAL)
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
On July 2006, before
the Executive
Huntington Be , a public body co
me on the a ' of satisfactory evidenc
instrume�st-`siigo(nature
acknowledged to m�nAt
that by on the instru
acted, xecuted the instrument.
Signature (Notary)
My Commission Expires: V�-�4 1 i,00'7
per onally appeared
Dlrect of the Redevelopmentency of the City of
rporaand politic, personally o me (or proved to
e) be the person whose n is subscribed to the withi
at he executed the same ' the authorized capacity d
the person, or the entit upon behalf of which t person
me,
WITNESS my han44nd official seal.
Signature (Notary)
My Commission Expires:
(SEAL)
WASOI_41646051_4_207511_00057
9
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE I
On July _, 200 , efore me, the undersigned, a NOW
yfublic in and for said C y and
State, personally ap ared Stephen K. Bone, the Preside f Waterfront Develo ent, Inc., a
California corpo ion, the Manager of THE WARONT HOTEL, L , a California
limited liabili company, personally known toeedo7toe
ved to me on the asis of satisfactory
evidence) to a the person whose name is subs within instru nt and acknowled
to me th he executed the same in his a orized capacity, and th by his signature the
instru nt the person, or the entity n behalf of which the erson acted, exe ted the
inctn Pnt
WITNESS my hand and official seal.
(SEAL)
STATE OF CALIFORNIA
F*-f
COUNTY OF ORANGE
Signature (Notary)
My Commission Expires:
On July pM , 2006, before me, personally appeared
�Prlplrw2Cct(bnV' the Executive Director of the Redevelopment Agency 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 The 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. CCPELAND
U COMM. #1409904
NOTARY PUBLIC - CALIFORNIA
FORANGE COUNTY n
"dY COMM. EXPIRES APRIL 8.2007 "+
(SEAL)
WAS01 41646051 5 207511 00057
Signature otary)
My Commission Expires:
rJ
EXHIBIT A
MAP
(attached hereto)
WAS01 41646051_4_207511_00057
11
ATTACHMENT NO. 1
MAP OF THE SITE
I 1
� I
II
\ N35 2Z'25" E (R)
E'LY LINE SEC 14, `
T. 6 S., R. 11 W.,
M.M. 51/14
N'LY LINE S 1 /2, NE 1 /4
SEC 14, T.6.S.. R.11.W.,
/ M.M. 51/1`
/P.O.B.
NOW TZ 00 1 J
N IN
6=05!54'16! R-2452.00' L=252.68'
A127 `� N48'43'21"W 38.85' I
sJ�ti • cF" s ��\,6 THE SITE
45.56 AC. I
x6
,004
\ a
0
0 I
ST 96s, N
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NOO*44'22"W 12.63'
N53'05'49'W 172.33'
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2
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S74'34'12'W 45.01'
tEy�q 1, �,"A— '10 he"4
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 31o56'15" 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:
Date Commission Expires:
County where bond is Filed
Commission No.:
Manufacturer/Vendor No.:
REX MORISHITA
MAY 1, 2007
ORANGE
1414842
NNA1
Place of execution - Newport Beach
�1�
FIDELITY NATIONAL TITLE COMPANY
Date - July 26, 2006
Government Code 27361.7
I certify under the penalty of perjury that the notary seal on
this document reads as follows:
Name of Notary:
Date Commission Expires
County where bond is Filed:
Commission No.:
Manufacturer/Vendor No.:
Place of execution - Newport Beach
FIDELITY NATIONAL
Kimberly S. Kovach
1/31/2009
Arlington, Virginia
N/A
N/A
Date - July 27, 2006
COMPANY
I CERTIFY THAT, IF THIS SEAL IS AFFIXED
IN PURPLE INK, THIS IS A TRUE AND S COUNTY- IM RECOFM
CORRECT COPY OF THE PERMANENT RECORD ���
FLED OR RECORDED IN THIS OFf ....
4
DA E N 1 9 2w? f� t + f ���' '�f cw� °��\t� ORANGE NUM'IY STAXW WOM
'I'
FOB
2006 AUG - I PM 3: 07
CITY OF HUNTINGTON BEACH C; I ; y C F
Inter -Department Communication fi! .J1*iN'G7T0Ili CIE kCH
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:
1. 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.
ENNIFER MCGRATH,
City Attorney
/k
Attachments as above
c: Stanley Smalewitz, Director of Economic Development
(w/attachments)
g1mu1vhi11/06memos/hi[ton docs