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HomeMy WebLinkAbout01-ATTACHMENT (AGREEMENT) AGREEMENT AND ESCROW INSTRUCTIONS (TUSTIN LEGACY) This Agreement and Escrow Instructions (the "Agreement") dated August , 2017 between the City of Tustin, a municipal corporation of the State of California ("City") and Vestar/Kimco Tustin, L.P., a California limited partnership ("Developer"). The City and Developer are sometimes referred to herein individually as a"Party" and collectively as the "Parties." RECITALS: A. The Parties entered in that certain Tustin Legacy Disposition and Development Agreement (Retail Development) dated July 20, 2004 by and between the City and Borrower, as amended by that certain First Amendment dated March 25, 2005 and that certain Second Amendment dated June 8, 2005, as evidenced by that certain Memorandum of Tustin Legacy Disposition and Development Agreement (Retail Development) ("Memorandum of DDA"), dated as of July 20, 2004, and recorded on June 8, 2005, in the Official Records as Instrument No. 2005000446772; that certain Third Amendment to Tustin Legacy Disposition and Development Agreement (Retail Development) dated November 3, 2006, a Memorandum of which was recorded on November 3, 2006 as Instrument No. 2006000744972; that certain Fourth Amendment dated November 9, 2007, which was recorded under Document No. 2007000678615 in the Official Records; that certain Fifth Amendment to Tustin Legacy Disposition and Development Agreement (Retail Development) dated October 19, 2010, which was recorded under Document No. 2010000563583 in the Official Records (collectively, the "DDA"). Pursuant to the DDA, Developer developed and constructed the District of Tustin Legacy Shopping Center(the "Shopping Center"). Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in the DDA. B. Pursuant to the DDA, the parties also entered into that certain Infrastructure Construction and Payment Agreement dated June 8, 2005; as amended by a First Amendment dated July 26, 2007; as amended by a Second Amendment dated September 1, 2007; as amended by a Third Amendment dated January 2, 2008; as amended by a Fourth Amendment dated December 2, 2008; and as amended by a Fifth Amendment dated October 19, 2010 (collectively, the "ICPA"). C. Pursuant to the DDA and ICPA, Developer was required to construct designated Segments of"Developer Backbone Infrastructure." To secure the obligation to construct the Developer Backbone Infrastructure, the Developer has provided the City with a performance bond (Bond No. 10 BCSDJ8840 [Faithful Performance Bond and Labor and Materials Bond]) from Hartford Insurance Company (the "Performance Bond"). The one Segment of Developer Backbone Infrastructure that has not yet been completed by the Developer is the Barranca Channel Storm Drain, as described in the DDA. D. Developer has advised the City that it is in the process of effectuating a refinancing of its existing permanent loan on the Shopping Center by means of a new permanent loan (the 1 1262326.3 "Replacement Permanent Loan") to be provided by Pacific Life Insurance Company, a Nebraska corporation (the "Lender"). The Replacement Permanent Loan will be in the same amount as the existing permanent loan, with Developer receiving no cash proceeds from such refinancing. In connection with the Replacement Permanent Loan, the Lender is requiring that Developer obtain a Final Certificate of Compliance from the City pursuant to Section 9.5 of the DDA(the "Certificate of Compliance"). In consideration of the City's issuance of a Certificate of Compliance to the Developer (the form of which is attached as Exhibit A), the Developer is agreeable to substituting the Performance Bond with a $10,000,000 irrevocable letter of credit from the Bank of Nova Scotia, New York Agency (the "Letter of Credit"), the form of which is attached as Exhibit B. Developer acknowledges that notwithstanding the issuance of a Certificate of Compliance by the City, the Developer retains the obligation to construct the Barranca Channel Storm Drain. The Letter of Credit is being provided as upgraded security as compared to the Performance Bond, for securing the construction of the Barranca Channel Storm Drain. E. Additional Lender requirements for the Replacement Permanent Loan are that the Developer obtain from the City (i) a City Estoppel Certificate and Consent (the "City Estoppel") in the form attached hereto as Exhibit C; and (ii) a Subordination of Deed of Trust("Subordination") in the form attached hereto as Exhibit D. F. Developer and City have been discussing a number of issues of mutual interest to them which potentially are expected to be the subject of a comprehensive property exchange and settlement agreement (the "Potential Exchange Agreement"). As a convenient summary of the "Potential Exchange Agreement," the Parties are attaching hereto as Exhibit E, a non-binding "Memorandum of Understanding" describing some of the material terms of the Potential Exchange Agreement. G. First American Title Insurance Company ("First American" or"Escrow Agent") whose address is First American Title Insurance Company, National Commercial Services, 18500 Von Karman Avenue, Suite 600, Irvine, California 92612, Attention: Andrew Nhim, Commercial Title Assistant, anhimkfirstam.com, 949-885-2447, is serving as the "Escrow Agent" for the closing of the Replacement Permanent Loan. (The Escrow is being overseen by Jill Siegel Wilensky, Senior Underwriting Counsel, First American Title Insurance Company, National Commercial Services,jsiegelkfirstsam.com, 212- 551-9458.) (Also supervising is Devan Boyles, Commercial Title Officer, same address as Andrew Nhim, dboyleskfirstam.com, 949-885-2453.) First American has agreed to also act as Escrow Agent for the closing of this Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Developer shall deposit the original of the Letter of Credit with Escrow Agent. 2 1262326.3 2. The City shall deposit with Escrow Agent (a)the Certificate of Compliance in recordable form, (b) the City Estoppel, (c)the Subordination, and (d) a"Release of Bond Letter" in the form of Exhibit F. 3. Escrow Agent, once it is in possession of the documents described in Sections 1 and 2 above, and upon verbal confirmation from the City of Tustin (by David Kendig, Jeff Parker, or Matt West) and Developer (by Allan Kasen, Edward Reading, or Charlotte Ferguson) shall close this transaction by (a) transmitting the original of the Letter of Credit to the City by delivering it to the City Clerk at 300 Centennial Way, (b) recording the Certificate of Compliance in the Official Records of the County of Orange, (c) transmitting the City Estoppel and the Subordination to the Lender per written direction of the Lender, and (d) delivering the Release of Bond Letter to Developer (i.e., to Allan J. Kasen, 2425 East Camelback Road, Suite 750, Phoenix, Arizona 85016). 4. If required by Escrow Agent, the Parties shall execute reasonable escrow instructions for First American. All costs of escrow shall be borne by Developer. 5. Sections 1 through 4 (and 7 through 10) are the binding provisions of this Agreement. 6. Although the attached Memorandum of Understanding ("MOU") is not intended to have any legally binding effect, the Parties have deemed it mutually beneficial to attach the Memorandum of Understanding. The Memorandum of Understanding shall have no effect on the binding provisions of Sections 1 through 4 (and Sections 7 through 10) above. Further, it is understood that while the Memorandum of Understanding describes some of the material terms of the Potential Exchange Agreement, the final form of the Potential Exchange Agreement shall include a number of additional provisions and will have a number of conditions to its effectiveness, including the approval of the City Council of the City and the Developer, and any necessary approval of related documents from third parties, such as the Lender (inasmuch as the Memorandum of Understanding contemplates an exchange of real property, a portion of which serves as collateral for the Replacement Permanent Loan). The Memorandum of Understanding shall create no binding legal obligation on either Party, and the prospective Potential Exchange Agreement shall not become binding unless and until a final, definitive agreement is executed by both Parties. 7. This Agreement shall be governed by, interpreted under, construed, and enforced in accordance with the laws of the State of California, irrespective of California choice of law provisions. 8. Further Assurances. Each of the Parties hereto shall execute and deliver, any and all additional papers, documents, or instruments, and shall do any and all acts and things reasonably necessary or appropriate in connection with the performance of the obligations hereunder in order to carry out the intent and purposes of this Agreement, including the City reasonably cooperating (at no cost to the City) in effectuating the release of the Performance Bond in the event that the surety on the Performance Bond requires additional documentation to effectuate the release of the Performance Bond. 3 1262326.3 9. Notices. All notices or other communications required or permitted to be given pursuant to this Agreement shall be in writing and delivered to the Parties, with copies to each of the additional parties named below and shall be considered as properly given if(a) mailed by first class United States mail, postage prepaid, registered or certified with return receipt requested, (b) by delivering same in person to the intended addressee, (c) by delivery to an independent third party commercial delivery service for same day or next day delivery and providing for evidence of receipt at the office of the intended addressee, or(d) electronic mail with delivery status notification requested (or by facsimile to Kimco Realty Corporation with confirmed transmission); provided that(i) any notice delivered pursuant to clause (d) shall also be sent pursuant to one of the other means indicated in clauses (a), (b), or (c). If to the City: Tustin City Hall 300 Centennial Way Tustin, CA Attn: City Manager and Deputy City Manager Email: iparkerktustinca.org/mwestktustinca.org With a copy to: City Attorney, City of Tustin Woodruff Spradlin & Smart 555 Anton Blvd, #1200 Costa Mesa, CA 92626 Attn: David Kendig Email: dkendigkwss-law.com If to the Developer: Vestar/Kimco Tustin, L.P. 2425 E. Camelback Rd., #750 Phoenix, AZ 85016 Attn: Richard Kuhle Email: rkuhlekvestar.com With a copy to: Vestar/Kimco Tustin, L.P. 2425 E. Camelback Rd., #750 Phoenix, AZ 85016 Attn: Allan Kasen, Esq. Email: akasengvestar.com With a copy to: Kimco Realty Corporation 3333 New Hyde Park Rd. New Hyde Park, NY 11042 Attn: Legal Department Facsimile: 516-869-7256 10. This letter may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall be deemed to be one 4 1262326.3 instrument. A signature delivered by pdf, facsimile, or other electronic means shall have the same effect as an original. VESTAR/KIMCO TUSTIN, L.P., a California limited partnership By: Vestar Tustin, L.L.C. Its: General Partner By: Hanley Tustin, Inc. Its: Managing Member By: Name: Title: Vice President CITY OF TUSTIN, CALIFORNIA By: Name: Dr. Allan Bernstein Title: Mayor ATTEST: By: Name: Erica N. Rabe Title: City Clerk APPROVED AS TO FORM: By: Name: David E. Kendig Title: City Attorney 5 1262326.3 EXHIBIT A CERTIFICATE OF COMPLIANCE 6 1262326.3 Exhibit A FINAL CERTIFICATE OF COMPLIANCE (District of Tustin Legacy) CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT TO BE RECORDED AND TO BE EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE 6103 AND 27383. Recording requested by and when recorded mail to: Assistant City Manager The City of Tustin 300 Centennial Way Tustin, CA 92780 SPACE ABOVE THIS LINE FOR RECORDER'S USE FINAL CERTIFICATE OF COMPLIANCE FOR DISTRICT OF TUSTIN LEGACY This FINAL CERTIFICATE OF COMPLIANCE ("Certificate of Compliance") is made as of August 11, 2017 by the CITY OF TUSTIN, a municipal corporation of the State of California ("City"), in favor of VESTAR/KIMCO TUSTIN, L.P., a California limited partnership (the "Developer"), with reference to the following matters: A. The City and the Developer have entered into that certain Tustin Legacy Disposition and Development Agreement (Retail Development), dated as of July 20, 2004, as amended by that certain First Amendment to Tustin Legacy Disposition and Development Agreement (Retail Development) dated as of March 25, 2005 (the "First Amendment"), as amended by that certain Second Amendment to Tustin Legacy Disposition and Development Agreement (Retail Development) dated as of June 8, 2005 (the "Second Amendment"), as amended by that certain Third Amendment to Tustin Legacy Disposition and Development Agreement (Retail Development) dated as of November 3, 2006 (the "Third Amendment"), as amended by that certain Fourth Amendment to Tustin Legacy Disposition and Development Agreement dated as of November 9, 2007 (the "Fourth Amendment"), as amended by that certain Fifth Amendment to Tustin Legacy Disposition and Development Agreement (Retail Development) dated October 19, 2010 (the "Fifth Amendment") (collectively, as amended, the "DDA"). B. Pursuant to the DDA, the Developer agreed to develop and construct certain Improvements comprising the Project on the "Project Site" which consists of (i) that certain 7 1262326.3 real property defined in the DDA as (x) the "Developer Parcels", more particularly described on Exhibit "A" attached hereto and incorporated herein by this reference and (y) the "Right-of-Way Parcels" and "City Dedication Parcels" and (z) certain additional property owned by the City upon which off-site infrastructure and Tustin Legacy Backbone Infrastructure Improvements are to be constructed by Developer. C. Pursuant to Article 9 of the DDA, after Completion of all Improvements to be Completed by the Developer upon the Project Site, or, subject to the conditions of Section 9.5 of the DDA, the Improvements to be Completed by Developer on one or more individual Parcel(s) thereof, in compliance with the terms of DDA and subject to compliance by the Developer with all other provisions of the DDA including the Conditions Precedent set forth in Section 9.5.2 of the DDA, the City agreed to furnish to the Developer, as applicable, upon request therefor by the Developer, a Final Certificate of Compliance for the Project Site. D. The City has determined that the Developer has satisfied the Conditions Precedent set forth in Section 9.5 of the DDA for the City's issuance of a Final Certificate of Compliance. NOW, THEREFORE, the City certifies as follows: 1. This Certificate of Compliance covers and applies to the entirety of the Improvements and Project on the Project Site as defined above, (the "Certified Improvements"). 2. This Certificate of Compliance shall be deemed conclusive evidence of the City's determination of Completion of the Certified Improvements as required by this Agreement to be developed and constructed with respect to the Project by Developer and performance of all of the Developer's obligations set forth in Section 9.5 of the DDA for issuance of this Certificate. 3. Upon recordation of this Certificate, the DDA shall terminate and shall be of no further force and effect as to, and only as to, the Certified Improvements (including that portion of the Developer Parcels upon which the Certified Vertical Improvements are constructed the "Certified Parcels") and any Person then owning or thereafter purchasing, leasing, or otherwise acquiring any interest in the Certified Parcel(s) shall not(because of such ownership, purchase, lease or acquisition) incur any obligation or liability under the DDA with respect to the Certified Improvements, except that the following matters shall survive the termination of the DDA as to the Certified Improvements, the Certified Parcel(s) and all Persons owning, leasing or occupying the Certified Parcel (s) and/or the Certified Improvements shall continue be bound by the following matters, which shall survive the termination of the DDA, shall not merge with any deed on any transfer of any portion of the Developer Parcel, and shall survive the issuance of this Certificate of Compliance and all future Certificates of Compliance in perpetuity unless otherwise indicated in the referenced sections: (a) the Quitclaim Deeds; (b) the Special Restrictions; (c) the provisions of the Memorandum of DDA which expressly survive the termination of the DDA; (d) the Ground Lease (if then in effect); s 1262326.3 (e) the CC&Rs; and (f) any and all obligations contained in the Federal Deed and in each quitclaim deed from the Federal Government conveying fee title to a LIFOC Parcel to the City and in the LIFOC, unless such obligations are released by the Federal Government or the LIFOC is terminated. 4. Issuance of this Certificate of Compliance shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or deed of trust or any insurer of a mortgage, or deed of trust securing money loaned to finance the Improvements or any part thereof. 5. Issuance of this Certificate of Compliance shall not waive any rights or claim that the City may have against any party for latent or patent defects in design, construction or similar matters under any applicable law, nor shall it be evidence of satisfaction of any of the Developer's obligations to others, not a party to the DDA. 6. This Certificate of Compliance is not a Notice of Completion as referred to in California Civil Code Section 3093. 7. It is acknowledged that a portion of the Developer Parcels (the "Sublease Property") is subject to that certain Ground Lease and Sublease between the City, as landlord, and Borrower, as tenant, dated June 8, 2005, a memorandum of which was recorded June 10, 2005 as Instrument No. 2005000446775 in the official records of Orange County, California ("Official Records"), as amended by that certain First Amendment to Ground Lease and First Amendment to Memorandum of Ground Lease between the City and Borrower, dated as of November 3, 2006, and recorded on November 3, 2006 in the Official Records as Instrument No. 200600074497601 (collectively, the "Lease"). Notwithstanding the issuance of this Certificate of Compliance, it is acknowledged that the real property subject to the Lease will not be deeded from the City to the Developer until after the City receives a deed of such property from the U.S. Navy. Accordingly, the Sublease Property will remain subject to the following provisions of the DDA so as to effectuate the future deeding of the Sublease Property from the City to Developer: Sections 4.1.2, 4.1.3, 4.4, and 7.7 of the DDA. 8. Except as stated herein, nothing contained in this instrument shall modify in any way any other provisions of the DDA or any other provisions of the documents incorporated herein. [signature page follows] 9 1262326.3 IN WITNESS WHEREOF, the parties hereto have, on the respective dates set forth below, duly executed this contract. CITY OF TUSTIN, CALIFORNIA By: Name: Dr. Allan Bernstein Title: Mayor ATTEST: By: Name: Erica N. Rabe Title: City Clerk APPROVED AS TO FORM: By: Name: David E. Kendig Title: City Attorney io 1262326.3 STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On before me, a Notary Public in and for said state, personally appeared 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 in and for said State (SEAL) 1262326.3 EXHIBIT "A" to Final Certificate of Compliance LOTS 1 THROUGH 29 OF TRACT MAP NO. 16695 AS PER MAP RECORDED IN BOOK 866, PAGES I TO 29, INCLUSIVE, OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA 12 1262326.3 EXHIBIT B FORM OF LETTER OF CREDIT 13 1262326.3 EXHIBIT B IRREVOCABLE STANDBY LETTER OF CREDIT NO. THE BANK OF NOVA SCOTIA,NEW YORK AGENCY 250 VESEY STREET NEW YORK,NY 10281 ATTENTION: TRADE SERVICES CENTER ISSUE DATE: BENEFICIARY: CITY OF TUSTIN, CALIFORNIA 300 CENTENNIAL WAY TUSTIN, CA 92780 ATTN: CITY MANAGER APPLICANT: VESTAR/KIMCO TUSTIN, L.P., 3333 NEW HYDE PARK ROAD NEW HYDE PARK,NY 11042 AMOUNT:USD 510,000,000.00 EXPIRATION DATE: AUGUST 3, 2018 DEAR CITY OF TUSTIN: VESTAR/KIMCO TUSTIN, L.P.,A CALIFORNIA LIMITED PARTNERSHIP ("APPLICANT") HAS ADVISED US THAT NOTWITHSTANDING THE ISSUANCE OF A CERTIFICATE OF COMPLIANCE TO THE APPLICANT BY THE CITY OF TUSTIN IN CONNECTION WITH THE TUSTIN LEGACY DISPOSITION AND DEVELOPMENT AGREEMENT (RETAIL DEVELOPMENT) DATED NOVEMBER 3,2006,AS AMENDED (THE "DDA"),THE APPLICANT RETAINS AN OBLIGATION TO CONSTRUCT THE BARRANCA CHANNEL STORM DRAIN AS DESCRIBED IN THE DDA. THIS LETTER OF CREDIT RELATES TO THE FOREGOING MATTER. WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. IN YOUR FAVOR FOR ACCOUNT OF VESTAR/KIMCO TUSTIN, L.P. UP TO AN AGGREGATE AMOUNT OF UNITED STATES DOLLARS TEN MILLION AND 00/100 (USD $10,000,000.00, AVAILABLE BY YOUR SIGHT DRAFT(IN THE FORM SET FORTH AS EXHIBIT A HERETO) DRAWN ON US ACCOMPANIED BY THE ORIGINAL OF THIS LETTER OF CREDIT AND SUBSEQUENT AMENDMENTS IF ANY. YOU MAY OBTAIN THE FUNDS AVAILABLE UNDER THIS LETTER OF CREDIT BY PRESENTATION TO US AT 250 VESEY STREET, NEW YORK, NY 10281 ATTENTION: TRADE SERVICES CENTER OF YOUR SIGHT DRAFT(S)DRAWN ON US IN THE FORM SET FORTH AS EXHIBIT A HERETO, ACCOMPANIED BY THE STATEMENT DESCRIBED ON FXHIBITA HERETO. 14 1262326.3 YOUR SIGHT DRAFT WILL BE HONORED BY PAYMENT TO YOU OF THE DRAFT AMOUNT IN IMMEDIATELY FUNDS. YOU MAY ALSO DIRECT US TO WIRE TRANSFER THE FUNDS TO THE ACCOUNT SPECIFIED PER THE ATTACHED EXHIBITA. YOU MAY DRAW THE FULL AMOUNT OF THIS LETTER OF CREDIT OR ONLY PART OF IT ON ONE OR MORE OCCASIONS, IN YOUR DISCRETION, PROVIDED THAT DRAFTS HONORED BY US UNDER THIS LETTER OF CREDIT SHALL NOT EXCEED THE STATED AMOUNT AVAILABLE TO YOU UNDER THIS LETTER OF CREDIT. THIS STANDBY LETTER OF CREDIT SETS FORTH IN FULL THE UNDERTAKING OF THE ISSUING BANK AND SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED, AMPLIFIED, OR LIMITED BY REFERENCE TO ANY OTHER DOCUMENT, INSTRUMENT, OR AGREEMENT referred to herein, except only the certificates and the draft referred to herein, and any such reference shall not be deemed to incorporate herein by reference any document,instrument or agreement except for such certificates and such draft. It is a condition of this Letter of Credit that it shall be deemed automatically extended, without amendment, for additional periods of one (1)year from the current expiration date, or any future expiration date unless at least Thirty (30) days prior to such expiration date we send you notice by certified mail return receipt requested or courier services, at your above stated address that this Letter of Credit will not be extended. Upon receipt of such notice,you may draw on us hereunder by means of your sight draft for the amount outstanding at the time of drawing, accompanied by your written statement purportedly signed by one of your authorized representative stating "We are in receipt of written notice from you of your election not to extend your Letter of Credit No. and we have not received an acceptable replacement Letter of Credit as of the date of our drawing" . We hereby engage with drawers, endorsers and bona fide holders of draft that draft drawn and negotiated in conformity with the terms of this Letter of Credit will be duly honored on presentation of documents as specified above at our counters at 250 VESEY STREET, NEW YORK, NY 10281 ATTENTION: TRADE SERVICES CENTER prior to the expiration date. THIS LETTER OF CREDIT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNATIONAL STANDBY PRACTICES 1998, INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 590 ("ISP"). VERY TRULY YOURS, THE BANK OF NOVA SCOTIA, NEW YORK AGENCY 15 1262326.3 EXHIBIT A DRAWN UNDER THE BANK OF NOVA SCOTIA, NEW YORK AGENCY LETTER OF CREDIT NO. TO: THE BANK OF NOVA SCOTIA,NEW YORK AGENCY DRAWN UNDER THE BANK OF NOVA SCOTIA,NEW YORK AGENCY,LETTER OF CREDIT NO._ I AM A DULY AUTHORIZED REPRESENTATIVE OF THE CITY OF TUSTIN, A MUNICIPAL CORPORATION, AND HEREBY CERTIFY THAT THE AMOUNT DRAWN ABOVE IS EITHER: (I) DEEMED NECESSARY BY THE CITY OF TUSTIN IN CONNECTION WITH THE CONSTRUCTION OF THE BARRANCA CHANNEL STORM DRAIN,OR (II) BEING DRAWN BECAUSE WE ARE IN RECEIPT OF WRITTEN NOTICE FROM YOU OF YOUR ELECTION NOT TO EXTEND YOUR LETTER OF CREDIT NO AND WE HAVE NOT RECEIVED AN ACCEPTABLE REPLACEMENT LETTER OF CREDIT AS OF THE DATE OF OUR DRAWING.) THE APPLICABLE BOX SHOULD BE MARKED WITH AN "X". ACCORDINGLY, PLEASE PAY TO THE ORDER OF THE CITY OF TUSTIN, $ . IF THE FOLLOWING BOX IS MARKED WITH AN "X" F-1,BENEFICIARY REQUESTS THAT YOU WIRE TRANSFER THE SUMS PER THE FOLLOWING WIRE TRANSFER INSTRUCTIONS: [INSERT WIRE INSTRUCTIONS] CITY OF TUSTIN, A MUNICIPAL CORPORATION BY: NAME: TITLE: 16 1262326.3 EXHIBIT C FORM OF CITY ESTOPPEL CERTIFICATE 17 1262326.3 CITY ESTOPPEL CERTIFICATE AND CONSENT PACIFIC LIFE INSURANCE COMPANY 700 Newport Center Drive Newport Beach, California 92660 Attention: Vice President-Asset Management Loan Number: 217900301 VESTAR/KIMCO TUSTIN, L.P. 2425 East Camelback Road, Suite 750 Phoenix, Arizona 85016 Re: Tustin Legacy Project Loan to be made by Pacific Life Insurance Company ("Lender") to Vestar/Kimco Tustin, L.P., a California limited partnership ("Borrower") secured by the Project Ladies and Gentlemen: The undersigned is writing regarding that certain project constructed on the land that is legally described in Exhibit A attached hereto (the "Project"). The Project is subject to the following: (i) that certain Ground Lease and Sublease between the City of Tustin, a municipal corporation of the State of California (the "City"), as landlord, and Borrower, as tenant, dated June 8, 2005, a memorandum of which was recorded June 10, 2005 as Instrument No. 2005000446775 in the official records of Orange County, California ("Official Records"), as amended by that certain First Amendment to Ground Lease and First Amendment to Memorandum of Ground Lease between the City and Borrower, dated as of November 3, 2006, and recorded on November 3, 2006 in the Official Records as Instrument No. 200600074497601 (collectively, the "Lease"); (ii) that certain Tustin Legacy Disposition and Development Agreement (Retail Development) dated July 20, 2004 by and between the City and Borrower, as amended by that certain First Amendment dated March 25, 2005 and that certain Second Amendment dated June 8, 2005, as evidenced by that certain Memorandum of Tustin Legacy Disposition and Development Agreement(Retail Development) ("Memorandum of DDA"), dated as of July 20, 2004, and recorded on June 8, 2005, in the Official Records as Instrument No. 2005000446772; that certain Third Amendment to Tustin Legacy Disposition and Development Agreement (Retail Development) dated November 3, 2006, a Memorandum of which was recorded on November 3, 2006 as Instrument No. 2006000744972; that certain Fourth Amendment dated November 9, 2007, which was recorded under Document No. 2007000678615 in the Official Records; that certain Fifth Amendment to Tustin Legacy Disposition and Development Agreement (Retail Development) dated October 19, 2010, which was recorded under Document No. 2010000563583 in the Official Records; and a Final Certificate of Compliance dated , 2017 (the "Certificate of Compliance") (collectively, the "DDA"); (iii) that certain Declaration of Special Restrictions dated June 8, 2005 and recorded on June 10, 2005 in the Official Records as Instrument No. 2005000446773, as amended by a First Amendment to Declaration of Special Restrictions dated November 3, 2006 and recorded on November 3, 2006 as Instrument No. 2006000744975 (the"Special Restrictions"); (iv) that certain 18 1262326.3 Infrastructure Construction and Payment Agreement dated June 8, 2005 by and between the City and the Borrower as amended by a First Amendment dated July 26, 2007, a Second Amendment dated September 1, 2007, a Third Amendment dated January 2, 2008, a Fourth Amendment dated December 2, 2008 and a Fifth Amendment dated October 19, 2010 (the "ICPA"); (v) that certain Landscape Maintenance Agreement dated June 8, 2005 by and between the City and Borrower and recorded on June 10, 2005 in the Official Records as Instrument No. 2005000446777 (the "LMA"); (vii) that certain Agreement Regarding O&M Plan to Fund and Maintain Water Quality BMPS, Consent to Inspect, and Indemnification dated March 10, 2006 and recorded March 30, 2006 as Instrument No. 2006000208397 ("Agreement Regarding O&M Plan"); (viii) that certain Covenant and Agreement Regarding O&M Plan to Fund and Maintain Water Quality BMPS, Consent to Inspect, and Indemnification dated May 15, 2007 and recorded June 13, 2007 as Instrument No. 2007000376714 ("Consent and Agreement Regarding O&M Plan"); (ix) that certain Subdivision Agreement dated March 21, 2005 (the "Subdivision Agreement") and (x)that certain Monumentation Agreement dated March 21, 2005 (the "Monumentation Agreement"). The Lease, the DDA (including, without limitation, the Certificate of Compliance), the Memorandum of DDA, the Special Restrictions, the ICPA, the LMA, the Agreement Regarding O&M Plan, and the Consent, Agreement Regarding O&M Plan, the Subdivision Agreement, and the Monumentation Agreement, are sometimes referred to herein collectively, the "Project Documents." All initially capitalized terms not otherwise defined herein shall have the meanings assigned to them in the DDA. The Lease is a ground sublease of the premises leased by the City pursuant to that certain Lease in Furtherance of Conveyance dated May 13, 2002, by and between the U.S. Navy, as ground lessor, and the City, as ground lessee (the "Navy Ground Lease"), a short form of which was recorded under Instrument No. 20020404590 and rerecorded under Instrument No. 2003000570797 in the Official Records. By execution of this letter, the undersigned certifies and confirms to Lender, its successors and/or assigns as follows: 1. The Project Documents are in full force and effect and, except as otherwise set forth herein, have not been modified, changed, altered, supplemented or amended. Copies of the unrecorded Project Documents are attached hereto as Exhibit B. 2. To the best of the undersigned's knowledge, there are no Material Defaults under the DDA or defaults under the other Project Documents nor any facts that now, or after giving of notice and the passage of time, or both, would constitute a Material Default under the DDA or a default under the other the Project Documents or that would entitle the City to exercise any of its remedies under the DDA. The Final Certificate of Compliance has been issued with respect to the Project. The preceding sentence is conditioned upon the closing of the Agreement and Escrow Instructions dated August 11, 2017 between the City and Developer. 3. As a result of the issuance of the Certificate of Compliance, the City no longer has: (i) the Right of Reversion set forth in Section 13.5 of the DDA, (ii) the Right of Purchase set forth in Section 15.12 of the DDA, (iii) the Right of Repurchase set forth in Section 13.4 of the DDA, or (iv) the right to cure Loan defaults under Section 15.10 of the DDA. In addition, certain other 19 1262326.3 provisions of the DDA no longer apply, including without limitation, Section 2.2 of the DDA (regarding restrictions on transfers and change of control, except that 2.2.5 shall continue to apply), Section 11 (regarding insurance) and Sections 15.2-15.10 of the DDA (regarding Permitted Mortgagees). The exercise of remedies by the City is in all events subject to the cure rights of Lender as set forth in Section 15.11 of the DDA. 4. Borrower has completed in full all of the construction and other work required of it under the DDA and other Project Documents, either on the Property or with respect to offsite improvements [except as described in Section 6]. 5. To the best of the undersigned's knowledge, the City has no claim of breach, counterclaim, and lien or offset presently existing under any of the Project Documents. 6. Although this Estoppel states that a Final Certificate of Compliance has been issued by the City pursuant to the DDA, Developer nonetheless retains the obligation to complete the Barranca Storm Drain Channel Work as described in the DDA, which obligation is secured by a letter of credit in favor of the City in the amount of$10,000,000. 7. The City has not received notice of default under the Navy Ground Lease. As used in this letter, the phrase "to the best of the undersigned's knowledge" or words of like impact means that the facts in question are actually known (as opposed to imputed, inquiry, or constructive knowledge) to the representative of the City signing below based upon such individuals' knowledge without any additional due diligence or duty of inquiry. This letter is written for the sole reliance of the parties to which it is issued, together with their successors and assigns, as to the matters addressed herein and only with respect to the transactions to be secured by -the encumbrances which are approved by the undersigned as set forth above, and may not be relied upon by any other party or for any other purpose without the express written consent of the undersigned. The provisions of this letter shall be binding upon the successors and assigns of the undersigned. The undersigned acknowledges that the parties to which this letter is addressed may rely upon this letter in making certain financing available to the Borrower. The City has executed this Estoppel as of , 2017. CITY OF TUSTIN, CALIFORNIA By: Name: Jeffrey C. Parker_ Title: City Manager Attest Erica N. Rabe, City Clerk 20 1262326.3 EXHIBIT D FORM OF SUBORDINATION OF DEED OF TRUST 21 1262326.3 RECORDING REQUESTED BY FIRST AMERICAN TITLE COMPANY NATIONAL/COMMERCIAL SERVICES COMMERCIAL/INDUSTRIAL DIVISION NCS-3020-850769 CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT TO BE RECORDED AND TO BE EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE 6103 AND 27383 Recording requested by and when recorded mail to: Assistant City Manager The City of Tustin 300 Centennial Way Tustin,CA 92780 SPACE ABOVE THIS LINE FOR RECORDER'S USE SUBORDINATION OF DEED OF TRUST THIS SUBORDINATION ("Subordination"), dated . 2017, is made by Pacific Life Insurance Company, a Nebraska corporation ("Lender"), In favor of the City of Tustin, California (the "City") with reference to the following: A. The City and Vestar/Kimco Tustin, L.P., a California limited partnership ("Developer"), have entered into that certain Tustin Legacy Disposition and Development Agreement(Retail Development) dated as of July 20, 2004(the"Original DDA"), as amended by that certain First Amendment to Tustin Legacy Disposition and Development Agreement (Retail Development) dated as of March 25, 2005 (the"First Amendment"), as amended by that certain Second Amendment to Tustin Legacy Disposition and Development Agreement (Retail Development) dated as of June 8, 2005 (the "Second Amendment"), as amended by that certain Third Amendment to Tustin Legacy Disposition and Development Agreement (Retail Development) dated as of November 3, 2006 (the "Third Amendment"), as amended by that certain Fourth Amendment to Tustin Legacy Disposition and Development Agreement dated as of November 9, 2007 (the "Fourth Amendment"), as amended by that certain Fifth Amendment to Tustin Legacy Disposition and Development Agreement (Retail Development) dated October 19, 2010 (the "Fifth Amendment"), and a Final Certificate of Compliance dated 2017, which was recorded as instrument number in the Official Records (the "Certificate of Compliance") (and, together with the Original DDA, the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, and the Certificate of Compliance, collectively, the "DDA") with respect to the property described therein, which includes the "Developer Parcels" and the existing improvements thereon. Prior to the recordation of this Subordination, the City and the Developer caused to be recorded in the official records of Orange County, California(the"Official Records") against the Developer Parcels: (i) that certain Memorandum of DDA dated as of July 20, 2004, executed by Developer and the City, as amended by that certain Memorandum of Tustin Legacy Disposition and Development Agreement (Retail Development) and First Amendment to DDA and Second Amendment to DDA dated as of June 8, 2005 and recorded June 10, 2005 as instrument number 22 1262326.3 2005000446772 in the Official Records, as amended by that certain Memorandum of Third Amendment to The Tustin Legacy Disposition and Development Agreement(Retail Development) dated as of November 3, 2006 and recorded on November 3, 2006 as instrument number 2006000744972 in the Official Records, as amended by that certain Fourth Amendment to Tustin Legacy Disposition and Development Agreement dated as of November 9, 2007 and recorded on November 9, 2007 as instrument number 2007000678615 in the Official Records,that certain Fifth Amendment to Tustin Legacy Disposition and Development Agreement (Retail Development) dated October 19, 2010, which was recorded under instrument number 2010000563583 in the Official Records, and the Certificate of Compliance, (ii) that certain Declaration of Special Restrictions, dated as of June 8, 2005, as amended by that certain First Amendment to Declaration of Special Restrictions recorded November 3, 2006 as instrument number 2006000744975 in the Official Records (as amended, the "Special Restrictions") executed by Developer and the City, and (iii) that certain Declaration of Covenants, Conditions, Restrictions and Easements dated June 8, 2005 executed by Developer and recorded under instrument number 2005000446776 in the Official Records, as amended by that certain First Amendment to Declaration of Covenants, Conditions, Restrictions and Easements and Declaration of Annexation executed by Developer and recorded November 3, 2006 as instrument number 2006000744981 in the Official Records(as amended, the"CC&Rs"). Initially capitalized terms set forth in this Subordination and not defined herein shall have the meanings set forth therefor in the DDA. B. Pursuant to the DDA, the City agreed to sell, lease and/or sublease, as applicable, the Property and the Developer agreed to purchase, lease and/or sublease, as applicable, the Property, and the Developer agreed to complete construction of certain Improvements on the Project Site, including on the Developer Parcels, within the time periods and subject to the additional terms and conditions set forth in the DDA. C. Lender intends to make a Two Hundred Six Million and 00/100 Dollars ($206,000,000.00) loan to the Developer (the "Loan") to be secured by the Property which loan shall be secured by that certain Deed of Trust,Financing Statement and Security Agreement(with Assignment of Rents and Fixture Filing) dated as of , 2017 made by the Developer in favor of First American Title Insurance Company as "Trustee" for the benefit of Lender("Deed of Trust"),to be recorded concurrently herewith in the Official Records. The Deed of Trust and any and all additional instruments executed by the Developer and/or Lender to secure the Loan and/or to add or remove collateral security therefrom, in each case as the same may be modified or amended from time to time, are referred to herein collectively as the "Security Documents." The Deed of Trust encumbers the real property described in Exhibit"A" attached hereto (the "Property"). D. The Deed of Trust, as the same may be modified or amended from time to time, is a"Mortgage" as such term is utilized in the DDA. E. The DDA provides the Developer with the right to encumber the fee title and subleasehold interests to the Developer Parcels owned by it with a "Permitted Mortgage" made by a"Permitted Mortgagee" as such terms are defined in the DDA. Because the Certificate of Compliance has been issued, the City no longer has the right to approve of Developer's financing of the Property (including the loan documents or the lender). 23 1262326.3 Nevertheless, because approximately 4.74 acres of the Developer Sublease Parcels remains to be conveyed to Developer, the parties desire to enter into this Subordination to clarify that certain provisions of the DDA regarding Permitted Mortgagees apply notwithstanding the issuance of the Certificate of Compliance. AGREEMENT NOW THEREFORE, in consideration of the foregoing, Lender and the City hereby agree as follows: 1. Recitals. Recitals set forth above are hereby agreed and acknowledged by Lender to be true and correct and are incorporated into this Subordination as though fully set forth in this Section 1. 2. Subordination of Security Documents to DDA. Lender hereby subordinates the lien of the Security Documents, including, without limitation, the Deed of Trust, on the Developer Parcels, to(a)the DDA and the lien thereof, (b) the Ground Lease, (c) the Special Restrictions and (d)the CC&Rs. 3. Exercise of Remedies by the City. Lender hereby acknowledges and agrees that upon a Material Default by the Developer under the DDA, the City shall have the right to exercise (a) all remedies provided to it pursuant to the DDA, subject only to the cure rights of Lender as set forth in Section 15.11 of the DDA and(b) all remedies provided to it pursuant to the Ground Lease, the Special Restrictions and/or the CC&Rs to the extent applicable to the nature of the Material Default. Notwithstanding the foregoing, because the City has issued the Certificate of Compliance, the City shall not have (i) the Right of Reversion set forth in Section 13.5 of the DDA, (ii) the Right of Purchase set forth in Section 15.12 of the DDA, (iii) the right to cure Loan defaults under Section 15.10 of the DDA; or the (iv) Right of Repurchase set forth in Section 13.4 of the DDA. In addition, certain other provisions of the DDA no longer apply, including without limitation, Section 2.2 - 2.5 of the DDA (regarding restrictions on transfers, change of control, and assignment, except that 2.2.5 shall continue to apply), Section 11 (regarding insurance) and Sections 15.2-15.10 of the DDA (regarding Permitted Mortgagees). The exercise of remedies by the City is in all events subject to the cure rights of Lender as set forth in Section 15.11 of the DDA. 4. New Agreement. 4.1. Terms of DDA regarding New DDA. Lender hereby acknowledges and agrees to the following provisions of the DDA relating to New Agreements (i.e. a new DDA), which are set forth below (in italics), as modified as set forth below: 15.20 New Agreement and Ground Lease with Permitted Mortgagee. 15.20.1 Request by Senior Permitted Mortgagee. In the event of termination of this Agreement and/or the Ground Lease for any reason (including by reason of any Material Default by Developer or by reason of the disaffirmance thereof by Developer as a debtor- In-possession, or by a receiver, liquidator or trustee for Developer or its property), the City, if requested by the then-most senior Permitted Mortgagee will enter into a new 24 1262326.3 disposition and development agreement and/or ground sublease with the Permitted Mortgagee or other party requesting the same,provided that such party is the then owner of the Property, upon the same terms, provisions, covenants and agreements set forth in this Agreement and/or the Ground Lease and commencing as of the date of termination of this Agreement and/or the Ground Lease, as the case may be (collectively, the "New Agreement, ') subject to the following: (a) such Permitted Mortgagee or requesting party shall have provided written notice to the City requesting the New Agreement within thirty (30) calendar days after the date of termination of this Agreement: (b) such Permitted Mortgagee or requesting party shall pay to the City at the time of the execution and delivery of the New Agreement those sums specified in Section 15.11(c) which would, at the time of the execution and delivery thereof be due and unpaid pursuant to this Agreement but for its termination, and in addition thereto any reasonable attorneys'fees and experts'fees and court costs and court expenses (including attorney's and expert's fees) to which the City shall have been subjected by reason of Developer's Material Default,- and (c) such Permitted Mortgagee or requesting party shall subject to the provisions of Section 15.7, 15.8 and 15.11, perform and observe all covenants in this Agreement to be performed and observed by a Permitted Mortgagee (as affected by the issuance of the Final Certificate of Compliance), and failure to do so shall, after notice and opportunity to cure as provided by this Agreement, be a Material Default under this Agreement. 15.20.2 Request by City. In the event of termination of this Agreement for any reason (including by reason of any Material Default by Developer or by reason of the disaffirmance thereof by Developer, as a debtor-in-possession, or by a receiver. liquidator or trustee for Developer or its property) the then-most senior Permitted Mortgagee, if requested by the City, and provided that such party is the then-owner of the Property, will enter into a new Agreement with the City requesting a new Agreement upon the same terms, provisions, covenants and agreements set forth in this Agreement and commencing as of the date of termination of this Agreement("New Agreement'), subject to the following: (a) the City shall have provided written notice to such Permitted Mortgagee requesting the New Agreement within thirty(30) calendar days after the date of termination of this Agreement, with a copy to each other Permitted Mortgagee: and (b) the Permitted Mortgagee shall be subject to the provisions of Section 15.7, 15.8 and 15.11 and shall perform and observe all covenants in this Agreement to be performed and observed by a Permitted Mortgagee (as affected by the issuance of the Final Certificate of Compliance) and failure to do so shall, after notice and opportunity to cure, shall be a Material Default under this Agreement. Notwithstanding the foregoing, the New Agreement shall not contain any of the provisions terminated pursuant to a separate Subordination of Deed of Trust entered into with any Permitted Mortgagee or provide for performance of any work by Developer (because the Final Certificate of Compliance was issued, evidencing completion of all work to be performed by Developer under the DDA). 25 1262326.3 15.20.3 When all of the Developer Sublease Parcels have been conveyed by the City pursuant to the DDA, Sections 15.20 and 15.21 shall terminate and neither the City nor a Permitted Mortgagee shall be entitled to a New Agreement. 4.2. Priority of New Agreement. Lender hereby agrees that any New Agreement, whether entered into at the request of Lender or the City with respect to the Property or any portion thereof, shall be prior to the Security Documents and any other lien, charge, or encumbrance on the Property to which the lien of the DDA was previously senior in priority. Lender hereby agrees that it shall execute a new subordination agreement in the form of this Subordination as may be reasonably requested by the City to evidence the priority of the New Agreement to the Security Documents, whether recorded prior or subsequent to execution of the New Agreement. 5. Notices. 5.1. Notices, Demands and Communications. In accordance with the requirement of the DDA that Lender provide in writing to the City an address or addresses to which notice shall be provided by the City, Lender hereby provides the addresses set forth below to which notice to Lender under the DDA shall be provided (including the "copy to" email address listed below). Lender acknowledges receipt of the addresses at which notice to the City under the DDA shall be provided. Either Lender or the City may by written notice to the other in the manner specified in the DDA change the address to which notices to it shall be delivered. Unless otherwise provided in writing, all notices shall be addressed as follows: If to the City: Tustin City Hall 300 Centennial Way Tustin, CA 92780 Attention: City Manager With a copy to: City Attorney City of Tustin Woodruff Spradlin & Smart 555 Anton Blvd., Suite 1200 Costa Mesa, CA 92626 Attention: David Kendig, Esq. If to Lender: Pacific Life Insurance Company 700 Newport Center Drive Newport Beach, CA 92660 Attention: Vice President-Asset Management Loan Number: 217900301 Telephone: (949) 219-3715 With a copy to: Email: REDocumentMana ee m�entkpacificlife.com and with a copy to: K&L Gates LLP 925 4th Avenue, Suite 2900 Seattle, WA 98104 Attention: Shannon Skinner 26 1262326.3 Telephone: (206) 370-7657 Email: shannon.skinnerkkl gates.com 5.2. Notice to Lender. Nothing set forth in this Subordination shall modify the provisions of Section 15.11(a) of the DDA, or of any other provision of the DDA pertaining to notice. 6. Limitation on Liability. In the event that a Permitted Mortgagee assumes the obligations of Developer under the DDA, such Permitted Mortgagee shall only be liable or bound by Developer's obligations thereunder for such period as the Permitted Mortgagee is in possession and/or control of the portion of the Property in which the Permitted Mortgagee has acquired its interest. Furthermore, notwithstanding anything to the contrary contained in the DDA or this Subordination, such Permitted Mortgagee shall only be liable to the extent of its interest (whether fee or leasehold) in the portion of the Developer Parcels and the improvements thereon. 7. No Impact on Lien. Breach of any of the covenants, conditions, restrictions, or reservations contained in the DDA shall not affect the lien of any Permitted Mortgage made in good faith and for value as to the Property or any portion of the Property or Interest therein. Except as otherwise provided in this Subordination or the DDA, the terms, conditions, covenants, restrictions and reservations of the DDA shall be binding and effective against the Permitted Mortgagee and any owner/ground sublessee of the Property, or any portion of the Property, whose title thereto or possession thereof is acquired by foreclosure or otherwise. 8. Miscellaneous. 8.1. Modification. No amendment, change, modification or supplement to this Subordination shall be valid and binding on the Parties unless it is represented in writing and signed by each of the Parties. 8.2. Applicable Law. This Subordination shall be governed by, interpreted under, construed and enforced In accordance with the laws of the State of California, irrespective of California's choice-of-law principles. 8.3. Binding Effect. This Subordination and the terms, provisions, promises, covenants and conditions hereof shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, legal representatives, successors and assigns. 8.4. Counterparts. This Subordination may be executed in two or more separate counterparts, each of which, when so executed, shall be deemed to be an original. Such counterparts shall, together, constitute and shall be one and the same instrument. This Subordination shall not be effective until the execution and delivery by the Parties of at least one set of counterparts. The Parties agree to recognize execution of this Subordination by facsimile or emailed .pdf signatures; provided, however, that such execution by facsimile or emailed .pdf shall not be effective unless a manually executed copy of the signature page is promptly sent by United States, postage prepaid or is hand delivered, and such manually signed page is actually received by the other Party within five (5) days of its execution. The Parties hereby authorize each other to 27 1262326.3 detach and combine original signature pages and consolidate them into a single identical original. Any one of such completely executed counterparts shall be sufficient proof of this Subordination. 28 1262326.3 IN WITNESS WHEREOF, Lender has caused this Subordination to be duly executed as of the day and year first above written. LENDER PACIFIC LIFE INSURANCE COMPANY, a Nebraska corporation By: Name: Title: Authorized Signatory By: Name: Title: Authorized Signatory CITY: CITY OF TUSTIN By: Name: Dr. Allan Bernstein Title: Mayor ACKNOWLEDGED BY DEVELOPER: VESTAR/KIMCO TUSTIN, L.P., a California limited partnership By: Vestar Tustin, L.L.C., a Delaware liability company Its: General Partner By: Hanley Tustin, Inc., an Arizona corporation Its: Managing Member By: Name: Title: [ACKNOWLEDGEMENTS ON NEXT PAGE] 29 1262326.3 LENDER A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of Orange ) On before me, a Notary Public, personally appeared and who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 30 1262326.3 DEVELOPER STATE OF ARIZONA ) COUNTY OF MARICOPA ) On , 2017, before me, a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) (is/are) subscribed to the within instrument, and acknowledged to me that (he/she/they) executed the same in (his/her/their) authorized capacity, and that by (his/her/their) signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public 31 1262326.3 CITY NOTARY ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of Orange ) On before me, a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 32 1262326.3 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY (Legal Description from Deed of Trust) 33 1262326.3 EXHIBIT E MEMORANDUM OF UNDERSTANDING 34 1262326.3 EXHIBIT E NON-BINDING MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF TUSTIN, CALIFORNIA ("City") AND VESTARXIMCO TUSTIN, L.P. ("Developer") This Memorandum of Understanding ("MOU") has been prepared as a non-binding attachment to the Agreement (Tustin Legacy) between the City and Developer dated August 11, 2017 (the "Agreement"). Pursuant to Section 6 of the Agreement, this MOU is not intended to have any binding legal effect whatsoever, but has been prepared to set forth some of the material terms for the Potential Exchange Agreement that have been discussed by the City and the Developer. The Potential Exchange Agreement will not be binding unless and until a definitive form of that has been executed by Developer and the City upon final approval of such agreement by the City Council of the City and Developer. Capitalized terms not defined in this MOU shall have the meanings set forth in the Agreement or, if not defined in the Agreement, in the DDA or ICPA as defined in the Agreement. 1. Infrastructure: In exchange for the City releasing Developer from its obligation per the DDA and ICPA to complete the Segment of the Developer Backbone Infrastructure described as the Barranca Channel Storm Drain in the DDA and ICPA, Developer shall release the City from any and all claims under the DDA and ICPA. As part of such release, the City will confirm that Developer has completed the Developer Backbone Infrastructure required under the DDA and ICPA. 2. Exchange: The City will deed approximately 7 acres on the former Army Reserve Property (the "City Transferred Property") to Developer in exchange for a deed to the City for approximately 7 acres of property (the "Developer Transferred Property") currently located in Developer's adjacent District of Tustin Legacy Shopping Center (the "Shopping Center") (the "Exchange"). A depiction of the property to be exchanged in attached hereto as Addendum A. It is acknowledged that no additional Tustin Legacy Fair Share Backbone Payment shall be required of Developer in connection with the Exchange, inasmuch as such payment has previously been made with respect to the Developer Transferred Property, however, Tustin Legacy Fair Share Backbone Payments will be required for any future development occurring pursuant to Section 6. 3. Economics of the Exchange: The City preferred this potential approximately 7 acre Exchange as compared to a smaller approximately 4-5 acre exchange of property that had been proposed by Developer. However, pursuant to the larger Exchange, Developer will be transferring, and the City will be receiving, a parcel already improved with a commercial structure, while Developer will need to invest in new structures on the parcel it receives. Thus the transaction will create an approximately $11.4 million benefit to the City and shortfall for Developer and will adversely affect the economic value of the Shopping Center from an existing and development standpoint. Accordingly, the following measures will offset that difference: A. Developer shall be entitled to lease back the Developer Transferred Property for an 8-year period (the "Leaseback Period") at a nominal ground rent. During the Leaseback Period, Developer shall have operational and maintenance responsibility for the Developer 35 1262326.3 Transferred Property, and would preserve the existing quality of the property and insure the property against all risks and defend and indemnify the City against all claims arising or caused during the Leaseback Period. Developer will retain the rents from the Developer Transferred Property during the Leaseback Period to enable it to relocate existing tenants from the Developer Transferred Property in an orderly fashion and to otherwise offset the economic impact of the larger Exchange. B. The City will have a 2-year option to reduce the 8-year Leaseback Period to a 5-year period by notifying Developer within such 2-year period of such decision, and by paying Developer $2,400,000 in cash at the expiration of the 5th year of the Leaseback Period. C. The City will make a $5,000,000 payment upon the Closing of the Potential Exchange Agreement. D. The City will make an additional $4,000,000 cash payment to Developer upon the expiration of the Leaseback Period; provided, however, if the City exercises the option described in Section 3.13 above, the payment will be made at the end of the fifth year of the Leaseback Period. 4. Traffic Roadway Improvement: The City is planning to implement the widening of Park Avenue and certain other traffic improvements adjacent to the Shopping Center, including a new roadway from Barranca Parkway (the "Roadway Improvements")that will be located equally across Developer and City properties. Developer shall reimburse the City in the amount of $2,400,000 for the Roadway Improvements to be allocated as the City determines. 5. New Construction: Developer shall be permitted to construct net new Shopping Center square footage at the Shopping Center of approximately 92,000 square feet based upon the expectation that approximately 8,000 square feet of buildings will be demolished in the Shopping Center and approximately 100,000 square feet will be added to the Shopping Center. This will be subject to site plan modification to be agreed to by the City and Developer. 6. SLUR: The City Transferred Property will include Special Land Use Restrictions (SLUR) for the potential of incorporating future residential units; however, the new residential uses will need to be studied and negotiated independently so as not to impact existing development capacity at Tustin Legacy or the City's future use of the Developer Transferred Property. 7. Timing: It is the expectation of the Developer and the City to negotiate a Potential Exchange Agreement as soon as reasonably practical following the closing of the Agreement. 36 1262326.3 VESTAR/KIMCO TUSTIN, L.P., a California limited partnership By: Vestar Tustin, L.L.C. Its: General Partner By: Hanley Tustin, Inc. Its: Managing Member By: Name: Title: Vice President CITY OF TUSTIN, CALIFORNIA By: Name: Dr. Allan Bernstein Title: Mayor ATTEST: By: Name: Erica N. Rabe Title: City Clerk APPROVED AS TO FORM: By: Name: David E. Kendig Title: City Attorney 37 1262326.3 ADDENDUM A DEPICTION OF PROPERTY TO BE EXCHANGED ice' 1 r = xv >o P � a ff � j.1 i J 7.3 ACRES � pG AMC TUSTrH is - ` - RpRRIkNr&RERI[WAY AVMX?� ad VoWgHvq 38 1262326.3 EXHIBIT F FORM OF RELEASE OF BOND LETTER 39 1262326.3 EXHIBIT F CITY OF TUSTIN 300 Centennial Way Tustin, CA 92780 714-573-3026 714-832-0825-fax Date: August 11, 2017 To: Hartford Fire Insurance Company Hartford Plaza Hartford, CT 06115 Attention: Reference: Bond Number: 42 BCSDJ8840 (Faithful Performance Bond and related Labor and Material Bond) Current Bond Amount: $16,200,000 Issued To: Vestar/Kimco Tustin, L.P., a California limited partnership Beneficiary: City of Tustin, a municipal corporation Date Originally Issued: April 6, 2005 Please consider this letter the City of Tustin's authorization to release the above-referenced bond. The work under the covered agreement has been secured by alternative security. If you have any questions regarding this issue, please contact Matthew S. West, Deputy City Manager, at 714-573-3116. Thank you. CITY OF TUSTIN, a municipal corporation Approved as to Form By: By: Name: David E. Kendig Title: City Attorney cc: Vestar/Kimco Tustin, L.P. 40 1262326.3