Loading...
HomeMy WebLinkAboutMAIN PLACE SHOPPINGTOWN, LLCA-2019-089-01 DEC D 2 IS ESTOPPEL CERTIFICATE (2800 N. Mainplace Dr, Santa Ana, CA 92705 O &fb) 2727 N. Mainplace Dr, Santa Ana, CA 92705) M;oh moo (kr-) THIS ESTOPPEL CERTIFICATE (this "Certificate") is made and entered into as of the Z day of/riubGs� , 2024, by the CITY OF SANTA ANA, a California municipal corporation (the "City"). RECITALS A. Mainplace Shoppingtown LLC, a Delaware limited liability company ("Developer"), and the City are parties to that certain Development Agreement No. 2018-02 recorded on July 24, 2019 as Document No. 2019000265786 in the Official Records of Orange County, California (the "Development Agreement"). Capitalized terms not otherwise defined herein shall have the meanings given to them in the Development Agreement. B. The Development Agreement pertains to certain real property located in the City of Santa Ana, Orange County, California (the "Development"), which Development includes that certain real property more particularly described on Exhibit A attached hereto (the "Property"). C. The City (i) understands that Developer will be obtaining a loan (the "Loan") from Powerscourt Investments 60, LP, a Delaware limited partnership (together with its successors and assigns, "Lender") pursuant to that certain Loan Agreement dated on or about the date hereof, by and between Developer and Lender, which Loan shall be secured by that certain Fee and Leasehold Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing dated on or about the date hereof, executed by Developer, Mainplace MF 1, LLC, a Delaware limited liability company, and CMF MP South LLC, a Delaware limited liability company (as the same may be amended, restated or supplemented from time to time, the "Lien Instrument"), and Lender will be relying on the truth and accuracy of the matters described in this Certificate in making the Loan and (ii) agrees that this Certificate may be relied upon by, and shall inure to the benefit of, Lender and its successors and assigns (including, without limitation, a purchaser at or after foreclosure with respect to the Loan) and that this Certificate shall be binding upon the City. ESTOPPEL The above Recitals are incorporated herein and made a part hereof. 2. By executing this Certificate, the City certifies to Lender, to the knowledge of the certifying party, that the following statements are true, correct and complete as of the date hereof a. The Development Agreement is in full force and effect and no default or event of default exists thereunder. b. The Development Agreement has not been amended or modified either orally or in writing except as set forth in the Recitals. ESTOPPEL CERTIFICATE —Page 1 C. There are no Development Impact Fees or other amounts due and owing to the City at this time under the Development Agreement. 3. The City shall give Lender thirty (30) days prior written notice of any termination or cancellation of the Development Agreement. During such thirty (30) day period, Lender may, at its option, and without relieving Developer of any of its obligations under the Development Agreement, take any actions necessary in order to cure any default resulting in such notice. 4. No act or agreement between or on the part of the City or Developer, and/or any affiliate of Developer, to amend or modify the Development Agreement shall be binding upon or effective as against the Lender without its prior written consent. 5. The City recognizes that, in addition to serving as an estoppel, that Certificate shall be notice of lien on the Property, the City's recognition of Lender's rights thereunder, and agreement that if the City shall give any written notice of default under the Development Agreement (hereafter, collectively, "Notices") to Developer, and/or any affiliate of Developer, the City shall concurrently give a copy of each such Notice to Lender at the following addresses: Powerscourt Investments 60, LP c/o Waterfall Asset Management 1251 Avenue of the Americas, 50a' Floor New York, NY 10020 Attn: General Counsel Email: CRELoans@waterfallam.com and Notices@waterfallam.com With a copy to: Mayer Brown LLP 300 Tyron Street, Suite 1800 Charlotte, North Carolina 28202 Attn: Ross Kelley, Esq. Email: rosskelleva,mayerbrown.com 6. Nothing herein shall be deemed to prohibit Lender, at its option, from recording a memorandum or affidavit of this Certificate in the real property records of the county where all or any part of the Property is located. 7. The person(s) executing this Certificate on behalf of the City are duly authorized and fully qualified to execute this Certificate and the same is binding upon the City. 8. The City acknowledges that Lender is relying upon the statements in this Certificate and hereby warrants and affirms to and for the benefit of Lender and its successors and assigns that each of the foregoing statements are true, correct and complete as of the date hereof. 9. This Certificate shall be governed by and construed in accordance with the laws of the State of California. ESTOPPEL CERTIFICATE —Page 2 IN WITNESS WHEREOF, the City has caused this Certificate to be executed and delivered as of the date first written above. "CITY" CITY OF SANTA ANA, a California municipal corpora ' n A � I, - Name: Alvaro Nunez Title: City Manager ATTEST: Dated :d_ day of 2024 APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney Melissa M. Crosthwaite Senior Assistant City Attorney ESTOPPEL, CERTFICATE— Signature Page EXHIBIT A Legal Description of Property [To be inserted.] ESTOPPEL CERTIFICATE -Exhibit A THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA ANA, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL A-1: PARCELS 1 THROUGH 8 OF PARCEL MAP NO. 99-152, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 328, PAGES 36 THROUGH 42 OF PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, EXCEPT FROM A PORTION OF SAID LAND ALL MINERALS, OIL, GASES AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN THAT MAY BE WITHIN OR UNDER SAID LAND, WITHOUT, HOWEVER, THE RIGHT TO DRILL, DIG OR MINE THROUGH THE SURFACE OR THE UPPER 500 FEETTHEREOF, AS RESERVED BY THE STATE OF CALIFORNIA IN DEED RECORDED MAY 5, 1972 IN BOOK 10114, PAGE 873, OFFICIAL RECORDS. ALSO EXCEPT FROM A PORTION OF SAID PARCEL, ALL OIL, GAS, HYDROCARBON SUBSTANCES AND MINERALS OF EVERY KIND AND CHARACTER, TOGETHER WITH THE RIGHTTO DRILL INTO, THROUGH AND TO USE AND OCCUPY ALL PARTS OF SAID PARCEL LYING MORE THAN 500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES INCIDENTAL- TO THE EXPLORATION FOR A PRODUCTION OF OIL, GAS, HYDROCARBON SUBSTANCES OR MINERALS FROM SAID PARCEL OR OTHER LANDS, BUT WITHOUT, HOWEVER, ANY RIGHT TO USE EITHER THE SURFACE OF SAID PARCEL OR ANY PORTION THEREOF WITHIN 500 FEETOF THE SURFACE FOR ANY PURPOSE OR PURPOSES WHATSOEVER TO THE EXTENT SUCH RIGHTS TO DRILL HAVE BEEN EXCEPTED BY THE PARTIES NAMED IN DEEDS, LEASES AND OTHER DOCUMENTS OF RECORD, AS RESERVED IN DEED RECORDED NOVEMBER 1, 1985 AS INSTRUMENT NO, 85-424259, OFFICIAL RECORDS. ALSO EXCEPT FROM A PORTION OF SAID PARCEL, ALL OIL, GAS, HYDROCARBON SUBSTANCES AND MINERALS OF EVERY KIND AND CHARACTER, TOGETHER WITH THE RIGHTTO DRILL INTO, THROUGH AND TO USE AND OCCUPY ALL PARTS OF SAID PARCEL LYING MORE THAN 500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES INCIDENTAL TO THE EXPLORATION FOR A PRODUCTION OF OIL, GAS, HYDROCARBON SUBSTANCES OR MINERALS FROM SAID PARCEL OR OTHER LANDS, BUT WITHOUT, HOWEVER, ANY RIGHTTO USE EITHER THE SURFACE OF SAID PARCEL OR ANY PORTION THEREOF WITHIN 500 FEET OF THE SURFACE FOR ANY PURPOSE OR PURPOSES WHATSOEVER TO THE EXTENT SUCH RIGHTS TO DRILL HAVE BEEN EXCEPTED BY THE PARTIES NAMED IN DEEDS, LEASES AND OTHER DOCUMENTS OF RECORD, AS RESERVED IN DEED RECORDED JANUARY 22, 1986 AS INSTRUMENT NO.86-29056, OFFICIAL RECORDS. ALSO EXCEPT FROM A PORTION OF SAID PARCEL, ALL OIL, GAS, HYDROCARBON SUBSTANCES AND MINERALS OF EVERY KIND AND CHARACTER, TOGETHER WITH THE RIGHT TO DRILL INTO, THROUGH AND TO USE AND OCCUPY ALL PARTS OF SAID PARCEL LYING MORE THAN 500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES INCIDENTAL TO THE EXPLORATION FOR A PRODUCTION OF OIL, GAS, HYDROCARBON SUBSTANCES OR MINERALS FROM SAID PARCEL OR OTHER LANDS, BUT WITHOUT, HOWEVER, ANY RIGHTTO USE EITHER THE SURFACE OF SAID PARCEL OR ANY PORTION THEREOF WITHIN 500 FEET OF THE SURFACE FOR ANY PURPOSE OR PURPOSES WHATSOEVER TO THE EXTENT SUCH RIGHTS TO DRILL HAVE BEEN EXCEPTED BY THE PARTIES NAMED IN DEEDS, LEASES AND OTHER DOCUMENTS OF RECORD, AS RESERVED IN DEED RECORDED NOVEMBER 25, 1985 AS INSTRUMENT NO. 85-474287, OFFICIAL RECORDS. AN EASEMENT FOR BUILDING PURPOSES, ABOVE ELEVATION 153.70 FEET AND BELOW ELEVATION 171.20 FEET (CITY OF SANTA ANA DATUM), DESCRIBED AS FOLLOWS: COMMENCING AT POINT "A" AS DESCRIBED IN PARCELA-1 OF THE DEED RECORDED DECEMBER 5, 1988 AS INSTRUMENT NO. 88-632609, OFFICIAL RECORDS; THENCE NORTH 0' 03' 47" WEST, 170.37 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 89' 56' 13" EAST, 36,63 FEET; THENCE NORTH 0° 03' 47" WEST,132.18 FEET; THENCE NORTH 89" 53' 48" WEST, 36,63 FEET; THENCE SOUTH 0-03' 47" EAST,132.29 FEET TO THE TRUE POINT OF BEGINNING. PARCEL B-1: (NORTH) THAT PORTION OF PARCEL 2 OF PARCEL MAP NO.670, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 31, PAGE 42 OF PARCEL MAPS, IN THE OFFICE OFTHE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING ATTHE NORTHEAST CORNER OF PARCEL 2 OF PARCEL MAP NO.670, SAID POINTALSO BEING THE INTERSECTION OF THE SOUTHERLY LINE OF ROUTE 22 AND THE WESTERLY LINE OF MAIN STREET, AS SHOWN ON SAID PARCEL MAP NO. 670; THENCE ALONG THE NORTHERLY LINE OF SAID PARCEL 2, SOUTH 890 48' 07" WEST 676.41 FEET; THENCE SOUTH 0° 11' 53" EAST 76.45 FEETTO A POINT IN THE SOUTHERLY LINE OF MAINPLACE ROADWAY AS DESCRIBED IN THE GRANT DEED FOR STREET PURPOSES RECORDED JULY 28, 1989 AS INSTRUMENT NO. 89-401286 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, SAID POINT BEING ON A CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 448,00 FEET, A RADIAL LINE OF SAID CURVE PASSING THROUGH SAID POINT BEARS NORTH 150 22' 35" EAST, SAID POINTALSO BEING THE TRUE POINT OF BEGINNING;' THENCE SOUTH 0° 03' 47" EAST 293.66 FEET; THENCE SOUTH 89° 56' 13" WEST 217.67 FEET; THENCE NORTH 0' 03' 47" WEST 276.68 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 34.50 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 72' 54' 22" AN ARC DISTANCE OF 43.90 FEET TO A POINT, A RADIAL LINE OF SAID CURVE PASSING THROUGH SAID POINT BEARS NORTH 17' 09' 25" WEST, SAID POINT BEING LOCATED ON SAID SOUTHERLY LINE OF MAINPLACE ROADWAY; THENCE CONTINUING ALONG SAID SOUTHERLY LINE NORTH 890 48' 07" EAST 72.99 FEET TO A TANGENT CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 448.00 FEET AND EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 150 34' 28" AN ARC DISTANCE OF 121.78 FEET TO THE TRUE POINT OF BEGINNING. EXCEPT THEREFROM ALL MINERALS, OIL, GASES AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, THAT MAY BE WITHIN OR UNDER SAID LAND, WITHOUT, HOWEVER, THE RIGHT TO DRILL, DIG OR MINE THROUGH THE SURFACE OR THE UPPER 500 FEET THEREOF, AS RESERVED BY THE STATE OF CALIFORNIA IN DEED RECORDED MAY 5, 1972 IN BOOK 10114, PAGE 873 OF OFFICIAL RECORDS. ALSO EXCEPT THEREFROM ALL OIL, GAS, HYDROCARBON SUBSTANCES AND MINERALS OF EVERY KIND AND CHARACTER, TOGETHER WITH THE RIGHT TO DRILL INTO, THROUGH, AND TO USE AND OCCUPY ALL PARTS OF SAID PARCEL LYING MORE THAN 500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES INCIDENTAL TO THE EXPLORATION FOR OR PRODUCTION OF OIL, GAS, HYDROCARBON SUBSTANCES OR MINERALS FROM SAID PARCEL OR OTHER LANDS, BUT WITHOUT, HOWEVER, ANYRIGHT TO USE EITHER THE SURFACE OF SAID PARCEL OR ANY PORTION THEREOF WITHIN 500 FEET OF THE SURFACE FOR ANY PURPOSE OR PURPOSES WHATSOEVER, TOTHE EXTENT SUCH RIGHTS TO DRILL HAVE BEEN EXCEPTED BY THE PARTIES NAMED IN DEEDS, LEASES, AND OTHER DOCUMENTS OF RECORD, AS RESERVED IN DEED RECORDED NOVEMBER 1, 1985 AS INSTRUMENT NO. 85-424259 OF OFFICIAL RECORDS. ALSO EXCEPT THEREFROM ALL OIL, GAS, HYDROCARBON SUBSTANCES AND MINERALS OF EVERY KIND AND CHARACTER, TOGETHER WITH THE RIGHTTO DRILL INTO, THROUGH, AND TO USE AND OCCUPY ALL PARTS OF SAID PARCEL LYING MORE THAN 500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES INCIDENTAL TO THE EXPLORATION FOR OR PRODUCTION OF OIL, GAS, HYDROCARBON SUBSTANCES OR MINERALS FROM SAID PARCEL OR OTHER LAND, BUT WITHOUT, HOWEVER, ANY RIGHT TO USE EITHER THE SURFACE OF SAID PARCEL OR ANY PORTION THEREOF WITHIN 500 FEET OF THE SURFACE FOR ANY PURPOSE OR PURPOSES WHATSOEVER, TO THE EXTENT SUCH RIGHTS TO DRILL HAVE BEEN EXCEPTED BY THE PARTIES NAMED IN DEEDS, LEASES, AND OTHER DOCUMENTS OF RECORD, AS RESERVED IN DEED RECORDED JANUARY 22, 1986 AS INSTRUMENT NO, 86-29056 OF OFFICIAL RECORDS, ALSO EXCEPT THEREFROM ALL OIL, GAS HYDROCARBON SUBSTANCES AND MINERALS OF EVERY KIND AND CHARACTER, TOGETHER WITH THE RIGHT TO DRILL INTO, THROUGH, AND TO USE AND OCCUPY ALL PARTS OF SAID PARCEL LYING MORE THAN 500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES INCIDENTAL TO THE EXPLORATION FOR OR PRODUCTION OF OIL, GAS, HYDROCARBON SUBSTANCES OR MINERALS FROM SAID PARCELOR OTHER LANDS, BUT WITHOUT, HOWEVER, ANY RIGHT TO USE EITHER THE SURFACE OF SAID PARCEL OR ANY PORTION THEREOF WITHIN 500 FEET OF THE SURFACE FOR ANY PURPOSE OR PURPOSES WHATSOEVER, TO THE EXTENT SUCH RIGHTS TO DRILL HAVE BEEN EXCEPTED BY THE PARTIES NAMED IN DEEDS, LEASES, AND OTHER DOCUMENTS OF RECORD, AS RESERVED IN THE DEED RECORDED NOVEMBER 25, 1985 AS INSTRUMENT NO. 85-474287 OF OFFICIAL RECORDS. SAID PARCEL OF LAND APPEARS TO BE A PORTION OF PARCEL 8 OF PARCEL MAP NO.99-152, AS SHOWN ON A MAP FILED IN BOOK 328, PAGES 36 THROUGH 42 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 8-2: EASEMENTS FOR THE PURPOSES AND UPON THE TERMS AND CONDITIONS SPECIFIED IN SECTIONS IIA, IIB, IIC, IID AND IIG OF THAT CERTAIN AMENDED AND RESTATED CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT AGREEMENT RECORDED JANUARY 27, 1986 AS INSTRUMENT NO. 86-35230 OF OFFICIAL RECORDS, PARCEL C-1 ALL THOSE PORTIONS OF PARCELS 1 AND 2 OF PARCEL MAP NO.670, IN THE CITY OF SANTAANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 31, PAGE 42 OF PARCEL MAPS, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS; COMMENCING AT THE NORTHEAST CORNER OF PARCEL 2 OF SAID PARCEL MAP NO. 670, SAID POINT ALSO LYING ON THE INTERSECTION OF THE SOUTHERLY LINE OF ROUTE 22 AND THE WESTERLY LINE OF MAIN STREET, THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID PARCEL 2 AND SOUTHERLY LINE OF SAID ROUTE 22, SOUTH 89° 48' 07" WEST, 289.48 FEET, THENCE LEAVING SAID NORTHERLY LINE, SOUTH 0° 11' 53" EAST, 507.55 FEET TO THE TRUE POINT OF BEGINNING, THENCE SOUTH 0.03' 07" EAST, 258.75 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 34,50 FEET; THENCE SOUTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 80' 48' 56", AN ARC DISTANCE OF 48.66 FEET TO THE BEGINNING POINT OF A REVERSING CURVE, CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF 225.50 FEET, A RADIAL LINE FROM SAID POINT BEARS SOUTH 09' 14' 11" EAST; THENCE SOUTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 09- 12' 13', AN ARC DISTANCE OF 36.22 FEET TO A POINT, A RADIAL LINE FROM SAID POINT BEARS SOUTH 18' 26' 24" EAST; THENCE SOUTH 89' 56' 13" WEST, 362.16 FEETTO A POINT HEREINAFTER DEFINED AS POINT "A"; THENCE NORTH 00 03' 47" WEST, 302.66 FEET; THENCE SOUTH 89' 53' 48" EAST, 426.35 FEET TO THE TRUE POINT OF BEGINNING, PARCEL C-2: NON-EXCLUSIVE EASEMENTS OVER THE COMMON AREA (AS DEFINED IN THE AMENDED AND RESTATED CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT AGREEMENT DATED JANUARY 24, 1986 RECORDED JANUARY 27, 1986 AS INSTRUMENT NO, 86-35230 OF OFFICIAL RECORDS THE AGREEMENT) FOR INGRESS, EGRESS, THE PASSAGE AND PARKING OF VEHICLES AND PEDESTRIANS, UTILITIES, AND CONSTRUCTION, SUPPORT AND MAINTENANCE OF BUILDINGS AND APPURTENANCES, AND INCIDENTAL PURPOSES, ALL AS SET FORTH IN, AND UPON THE CONDITIONS CONTAINED IN THE REFERENCED AGREEMENT. PARCEL C-3: AN EASEMENT FOR MAINTENANCE, OPERATION, REPAIR AND RECONSTRUCTION OF A PORTION OF THE BASEMENT AREA AND INCIDENTAL PURPOSES PURSUANT TO THE TERMS OF SECTION II J OF THE AMENDED AND RESTATED CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT AGREEMENT DATED JANUARY 24, 1986 RECORDED JANUARY 27, 1986 AS INSTRUMENT NO. 86-35230 OF OFFICIAL RECORDS. PARCEL C-4: AN EASEMENT FO R ACCESS, LOADING, UNLOADING AND INCIDENTAL PURPOSES TH ERETO PURSUANT TO THE TERMS OF SECTION 11 M OF THE AMENDED AND RESTATED CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT AGREEMENT DATED JANUARY 24, 1986 RECORDED JANUARY 27,. 1986 AS INSTRUMENT NO.86-35230 OF OFFICIAL RECORDS. PARCEL C-5: A PERPETUAL EASEMENT FOR CONSTRUCTION, OPERATION, MAINTENANCE, REPAIR, RECONSTRUCTION AND REMOVAL OF IMPROVEMENTS, PURSUANT TO THE TERMS OF SECTION II-N OF IN THE AMENDED AND RESTATED CONSTRUCTION, OPERATION AND RECIPROCAL EASEMENT AGREEMENT DATED JANUARY 24, 1986 RECORDED JANUARY 27, 1986 AS INSTRUMENT NO.86-35230 OF OFFICIAL RECORDS.